Diveglia v. Commonwealth, Department of Transportation, 103119 PACCA, 979 C.D. 2018

Docket Nº:979 C.D. 2018
Opinion Judge:P. KEVIN BROBSON, Judge.
Party Name:Kathryn Leigh Diveglia v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
Judge Panel:BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ROBERT SIMPSON, Senior Judge.
Case Date:October 31, 2019
Court:Commonwealth Court of Pennsylvania
 
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Kathryn Leigh Diveglia

v.

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant

No. 979 C.D. 2018

Commonwealth Court of Pennsylvania

October 31, 2019

Argued: October 3, 2019.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ROBERT SIMPSON, Senior Judge.

OPINION

P. KEVIN BROBSON, Judge.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Bureau), appeals from an order of the Court of Common Pleas of Allegheny County (trial court), dated June 28, 2018. The trial court's order sustained the appeal of Kathryn Leigh Diveglia (Licensee), thereby effectively reversing Licensee's license suspension. For the reasons discussed below, we reverse the trial court's order.

On February 27, 2016, Licensee violated Section 3802(a)(1) of the Vehicle Code, 75 Pa. C.S. § 3802(a)(1), by committing the offense of driving under the influence of alcohol (DUI), which was an "ungraded misdemeanor"1 (First DUI). (Reproduced Record (R.R.) at 23a, 46a.) On November 15, 2016, Licensee was accepted into the Accelerated Rehabilitative Disposition program (ARD) in connection with the First DUI. (Id. at 46a.) On November 18, 2016, three days after Licensee began ARD, she committed another DUI (Second DUI). The Second DUI is an offense under Section 3802(c) of the Vehicle Code, 75 Pa. C.S. § 3802(c)- i.e., "[h]ighest rate of alcohol"-which is graded as a misdemeanor of the first degree.2 As a result of committing the Second DUI, Licensee failed to complete ARD.3 (Id. at 28a, 46a.) The trial court convicted Licensee on the Second DUI charge on August 9, 2017, and convicted Licensee on the First DUI charge-as a result of failing to complete ARD-on March 2, 2018. (Id. at 23a, 28a.)

As a civil collateral consequence of Licensee's offenses, the Vehicle Code mandates that the Bureau suspend Licensee's driver's license for a certain period of time, depending on the severity of the offense and any prior offenses.4With respect to the Second DUI, on August 11, 2017, the Bureau received a certified record of Licensee's conviction. (R.R. at 28a.) As a result, the Bureau suspended Licensee's operating privilege for a period of eighteen months pursuant to Section 3804(e)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(ii), which imposes an eighteen-month suspension. (Id. at 24a.) Thereafter, on March 7, 2018, the Bureau received a certified record of Licensee's conviction for the First DUI. (Id. at 23a.) Licensee's conviction on the First DUI charge resulted in the Bureau suspending Licensee's operating privilege for twelve months pursuant to Section 3804(e)(2)(i) of the Vehicle Code. (Id. at 20a.)

On May 21, 2017, Licensee appealed to the trial court the Bureau's decision to suspend her license for a period of twelve months.5 (Id. at 3a.) On June 28, 2018, the trial court held a hearing in order to determine whether the Bureau's year-long suspension of Licensee's operating privilege was improper. (Id. at 7a-17a.) At the hearing, counsel for Licensee argued that at the time of Licensee's conviction on the First DUI charge she had no prior offense and was subject to the exception to license suspension as provided by Section 3804(e)(2)(iii) of the Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(iii); therefore, the Bureau should not have suspended Licensee's operating privilege. (Id. at 13a-14a.) In response, the Bureau contended that the conviction for the First DUI occurred second in time to the conviction for the Second DUI, and, therefore, the conviction on the Second DUI charge operated as a prior offense. (Id. at 14a-16a.) At the hearing, the trial court judge agreed with counsel for Licensee and sustained Licensee's appeal. (Id. at 17a.) In so doing, the trial court judge, in referring to the conviction on the First DUI charge, reasoned: "It was her first offense. You can't change the calendar. This appeal is sustained[, ] and you can tell them to appeal me." (Id. at 17a.) Thereafter, on June 28, 2018, the trial court issued an order sustaining Licensee's appeal. (Id. at 33a.) The Bureau then appealed to this Court.

On appeal, 6 the Bureau argues that the trial court committed an error of law in concluding that Licensee was entitled to the exemption from license suspension set forth in Section 3804(e)(2)(iii) of the Vehicle Code. Specifically, the Bureau contends that Licensee was convicted of the Second DUI before she was convicted of the First DUI, such that the Second DUI operates as a prior offense, and, therefore, Licensee may not take advantage of the exemption from license suspension. Licensee counters, contending the trial court correctly concluded that her commission of the First DUI prior in time to the Second DUI means that Licensee had no prior offense and the Bureau should have applied the exemption from license suspension in this instance.

Section 3802 of the Vehicle Code delineates the various offenses pertaining to driving under the influence of alcohol or a controlled substance, and Section 3804 of the Vehicle Code, 75 Pa. C.S. § 3804, pertaining to penalties, sets forth both the criminal and civil consequences for convictions for those offenses. Section 3804(e) of the Vehicle Code, 75 Pa. C.S. § 3804, governs "suspension of operating privilege upon conviction" and provides: (1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual's conviction of or an adjudication of delinquency for:

(i) an offense under [S]ection 3802 [of the Vehicle Code]; or

(ii) an offense which is substantially similar to an offense enumerated in [S]ection 3802 [of the Vehicle Code] reported to the department under Article III of the compact in section 1581 (relating to Driver's License Compact).

(2) Suspension under paragraph (1) shall be in accordance with the following:

(i) Except as...

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