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COMMONWEALTH PENNSYLVANIA v. PATRICK A. MCDEVITT (03/18/81)

decided: March 18, 1981.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
PATRICK A. MCDEVITT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Patrick A. McDevitt, No. 79-920-10-6.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, Transportation, and Harvey Bartle, III, Acting Attorney General, for appellant.

Robert O. Baldi, Cordes, King & Associates, P.C., for appellee.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 57 Pa. Commw. Page 590]

The Department of Transportation (Department) appeals an order of the Court of Common Pleas of Bucks County which held that the Department could not revoke appellee's operating privileges under the habitual offender provision, Section 1542 of the Vehicle Code (Code), 75 Pa. C.S. § 1542. We reverse.

On April 8, 1978, appellee was charged with (1) driving under the influence of alcohol and (2) driving without lights to avoid identification or arrest. On May 21, 1978, appellee was again charged with driving under the influence. As a result of the incidents of April 8 and May 21 appellee was accepted in the Accelerated Rehabilitative Disposition (A.R.D.) program on both cases at the same time. The Department placed the actions of April 8 and May 21 on appellee's record and determined that under Section 1542(c) of the Code, 75 Pa. C.S. § 1542(c), appellee was an habitual offender despite his acceptance in the A.R.D. program. On appeal, the Court of Common Pleas of Bucks County conducted a hearing and ruled against the Department, holding that because appellee was admitted into the A.R.D. program for his offenses of April 8 and May 21, said offenses could not constitute convictions as required for habitual offender status within the intendment of Section 1542(a) of the Code, 75 Pa. C.S. § 1542(a).

This is a case of first impression in which this Court is asked to construe Section 1542(c) of the

[ 57 Pa. Commw. Page 591]

Code in order to ascertain the interaction of the A.R.D. and habitual offender provisions of the Vehicle Code.

Appellee argues that the offenses for which he was admitted into the A.R.D. program cannot be used to classify appellee as an habitual offender. It is undisputed that upon joining the A.R.D. program, appellee was neither tried nor permitted to enter a plea on the charges against him and therefore was never convicted of the driving violations. Appellee asserts that since Sections 1542(a) and 1542(b)*fn1 of the Code define an habitual offender as a person whose driving record contains three convictions of statutory offenses, the habitual offender provisions cannot properly be applied to appellee who was not convicted of any offenses.

In his argument, appellee has failed, however, to note that the A.R.D. program is elective, not mandatory. Section 1534*fn2 of the Code, Pa. R. Crim. P. 178, and Pa. R. Crim. P. 179 authorize the A.R.D. program only after a judge is satisfied with the response to the threshold inquiry whether the driver understands and accepts the conditions of the ...


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