Upsey v. Secretary of Revenue

• Decision Date: 16 November 1960
• Citation: Upsey v. Secretary of Revenue, 165 A.2d 267, 193 Pa.Super. 466 (Pa. Super. Ct. 1960)
• Parties: In the Matter of Elbert UPSEY, Appellant, v. SECRETARY OF REVENUE, Commonwealth of Pennsylvania.
• Court: Pennsylvania Superior Court

165 A.2d 267

193 Pa.Super. 466

In the Matter of Elbert UPSEY, Appellant, v. SECRETARY OF REVENUE, Commonwealth of Pennsylvania.

Superior Court of Pennsylvania.

November 16, 1960.

Application for Allocatur Denied Dec. 20, 1960.[Copyrighted Material Omitted]

Malcolm W. Berkowitz, Philadelphia, for appellant.

Elmer T. Bolla, Deputy Atty. Gen., Anne X. Alpern, Atty. Gen., for appellee.

Before WRIGHT, Acting P. J., and WOODSIDEERVIN, WATKINS and MONTGOMERY, JJ.

WOODSIDE, Judge.

This is an appeal from an order of the court below suspending the appellant's license to operate a motor vehicle.

Elbert Upsey was arrested February 9, 1960, for operating his motor vehicle in Philadelphia while under the influence of intoxicating liquor in violation of The Vehicle Code of April 29, 1959, P.L. 58, § 1037,75 P.S. § 1037.

After due notice to Upsey, the Secretary of Revenue, through a representative, held a hearing February 16, 1960, to determine whether Upsey's license should be suspended.The testimony given at this hearing by the officer who arrested Upsey and a physician who examined him established that he was under the influence of intoxicating liquor while operating his automobile on February 9th in Philadelphia.Upsey offered no testimony, and objected to the holding of the hearing while the criminal charge was pending against him, but the secretary suspended his operator's license for 6 months.

Upsey appealed to the court of common pleas where it was stipulated that the witnesses appearing at the administrative hearing if called, would give the same testimony before the court.Certain additional facts were also stipulated.When the hearing was held before the court of common pleas on April 29, the criminal charge against the operator had not yet been heard in the court of quarter sessions.The appellant again objected to proceeding with the hearing prior to the disposition of the criminal charge against him but the court below sustained the secretary in imposing a suspension of six months.Upsey then appealed to this Court.

The Vehicle Code, supra, provides in section 616,75 P.S. § 616, '(a) Upon receiving a certified record, from the clerk of the court, of proceedings in which a person pleaded guilty, entered a plea of nolo contendere, or was found guilty by a judge or jury, of [operating a motor vehicle or tractor while under the influence of intoxicating liquor], the secretary shall forthwith revoke, for a period of one (1) year from the date of revocation, the operating privilege of any such person, * * *'

Section 618 of The Vehicle Code, supra, 75 P.S. § 618, provides: '* * * (b) The secretary may suspend the operator's license or learner's permit of any person, after a hearing before the secretary or his representative, whenever the secretary finds upon sufficient evidence: (1) That such person has committed any offense for the conviction of which mandatory revocation of license is provided in this act; * * *.'

This section gives the Secretary of Revenue authority to suspend the operator's license of any person whom he finds upon sufficient evidence to have operated a motor vehicle while under the influence of intoxicating liquor.This authority exists even after the operator has been acquitted on a criminal indictment for the same offense.Commonwealth v. Funk, 1936,323 Pa. 390, 186 A. 65.The appellant does not question the authority of the secretary to suspend the license of such person, but argues that the authority is limited to the cases where the defendant was acquitted in a criminal case.He contends that the legislature did not intend to have both of these penalties (revocation under section 616, supra, and suspension under section 618, supra) imposed for the same offense.

Double penalties are not per se unconstitutional, or even unusual.A person found guilty of the crime of operating a motor vehicle while under the influence of intoxicating liquor must pay the costs of his prosecution, and can be sentenced to pay a fine, and to serve a prison term and can have his operator's license revoked for one year--all for a single violation.SeeCommonwealth v. Funk, supra.

We can find nothing in The Vehicle Code, supra, that would lead us to the conclusion that the legislature did not intend both § 616and§ 618 to apply to the same offense.The extent of intoxication and the manner of operating by those charged with this violation vary tremendously, and, therefore, the extent of culpability differs materially.The legislature may have considered the mandatory revocation of one year to be the minimum period for which the operator's privilege should be withdrawn for this offense, leaving to the secretary's discretion a further withdrawal of the operator's privilege to be applied to recidivists or to those whose conduct constitute the greater menace to highway users.If the legislature intended that the two sections should not be applied to the same offense, it could have expressed such intent.We need not speculate upon the reason the legislature provided for both suspension and revocation for the same offense.Whatever the reason may have been, the fact is that the legislature authorized the secretary to suspend the license of an operator for the same offense for which it provided for a mandatory revocation.There is nothing in the constitutions to prevent a double penalty.It is not double jeopardy under art. 1, § 10, P.S. of the Pennsylvania Constitution, and does not violate the due process clause of the Federal Constitution, to apply the penalties of both § 616and§ 618, supra, to the same violation.Bureau of Highway Safety v. Wright, 1946,355 Pa. 307, 49 A.2d 783;Commonwealth ex rel. Foster v. Ashe, 1939,336 Pa. 238, 8 A.2d 542;22 C.J.S.Criminal Law §§ 239,240.

The appellant further contends that the suspension of his license on the ground of operating a motor vehicle under the influence of intoxicating liquor based upon an administrative hearing prior to the trial of a criminal charge for the same offense is in violation of Article 1, Section 9 of the Pennsylvania Constitution and the equal protection and due process clauses of the Federal Constitution.

The Pennsylvania Constitution provides in Article 1, Section 9 that 'In an criminal prosecutions the accused * * * cannot be compelled to give evidence against himself * * *'The courts have been liberal to accused persons in applying the principle against self-incrimination, but we can find no case which goes as far as the contention of the appellant.

The appellant had the right to testify at the administrative hearing and at the court hearing on the question of the suspension of his license, but he was not compelled to testify.Without testifying himself, he could have defended by cross-examining the Commonwealth's witnesses and by offering any relevant evidence he may have had.His license was revoked because the evidence at the hearing established that he was operating a motor vehicle while under the influence of intoxicating liquor, and not because he exercised his constitutional privilege against self-incrimination.Thus, the principle established by our Supreme Court in Ault Unemployment Compensation Case, 1960, 398 Pa. 250, 157 A.2d 375 has no application here.

The appellant contends that no administrative hearing may be held against a person on a matter involving alleged criminal conduct until after the disposition of any criminal case against him growing out of the same matter.If this were true, those constituting the highway's greatest menace might operate with immunity for years while criminal charges against them were being contested.Presumably, not only would the secretary be helpless to remove dangerous operators from the highway, but those injured by such drivers would be denied the right to be heard in civil litigation on the question of damages until after the disposition of any criminal actions against the defendants.The rights of the users of the highways and those injured by reckless and negligent operators must not be denied to too elastic an interpretation of the rights of the accused.

The appellant's related argument, that he was denied due process, takes the following steps: A person not given a hearing on the suspension of a license is denied due process; to be given a hearing the person must be given an opportunity to be heard; exercising my constitutional right, I refused to testify; therefore, I was not given an opportunity to be heard and was denied due process.SeeState ex rel. Allstate Fire Ins. Co. v. Bowen, 1936,130 Ohio St. 347, 199 N.E. 355, 364.

No cases were cited which support this incongruous argument.The Commonwealth called our attention to Silver v. McCamey1955, 95 U.S.App.D.C. 318,221 F.2d 873, the only case in which we can find an argument approaching this.There the U.S. Court of Appeals held that the District of Columbia authorities could not revoke a taxicab operator's license of one accused of rape while the criminal charge was pending.No cases were cited there by the majority to support its holding, and no effort was made to justify the conclusion except to suggest that if the accused were to testify at the hearing, it might disclose to the government his evidence in the criminal case which might prejudice his defense.As we view it, the reasoning of this case is not sound; it is completely answered by the dissent of Judge Danaher; and it is contrary to the holding of Ex parte Wall, 1882, 107 U.S. 265, 287, 288, 2 S.Ct. 569, 27 L.Ed. 552, and numerous cases cited therein. ...