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APPEAL JOHN J. ELIAS FROM SUSPENSION MOTOR VEHICLE OPERATOR'S LICENSE BY DEPARTMENT REVENUE. JOHN J. ELIAS (12/17/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 17, 1982.

IN RE: APPEAL OF JOHN J. ELIAS FROM THE SUSPENSION OF MOTOR VEHICLE OPERATOR'S LICENSE BY THE DEPARTMENT OF REVENUE. JOHN J. ELIAS, APPELLANT

Appeal from the Order of the Court of Common Pleas of Fayette County in the case of In Re: Appeal of John J. Elias from the Suspension of Motor Vehicle Operator's License by the Department of Revenue, No. 1304 of 1981, G.D.

COUNSEL

Ralph D. Conrad, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 70 Pa. Commw. Page 405]

John J. Elias has appealed from an order of the Court of Common Pleas of Fayette County upholding the action of the Department of Transportation*fn1 revoking his operating privileges for a period of five years as an habitual offender of the traffic laws. Section 1542 of the Vehicle Code (Code), 75 Pa. C.S. § 1542, provides for the revocation of the licenses of habitual offenders, defined as persons who have been convicted of as many as three of a number of described offenses and further providing that "[a]cceptance of Accelerative Rehabilitative Disposition for any offense enumerated in subsection (b) shall be considered an offense for the purpose of this Section." Section 1542(c) of the Code. We affirm the court's order.

On July 21, 1978, the appellant was charged with operating a motor vehicle without a license and was convicted. On August 17, 1980 and again on October 12, 1980, the appellant was arrested for violations of Section 3731 of the Code -- driving under the influence of intoxicating drink. The appellant was admitted to the Accelerated Rehabilitative Disposition program

[ 70 Pa. Commw. Page 406]

(ARD) on the two drunk driving charges. The department thereupon issued a Notice of Revocation of the appellant's operator's license pursuant to 75 Pa. C.S. § 1542. On appeal, the court after a hearing, held that the appellant's admissions to the ARD program on the charges were to be treated with the one conviction as comprising three incidents necessary to make the appellant an habitual offender under 75 Pa. C.S. § 1542.

The appellant argues that the admissions to ARD should not be considered in determining whether the operator is an habitual offender. But Bureau of Traffic Safety v. McDevitt, 57 Pa. Commonwealth Ct. 589, 427 A.2d 280 (1981), is controlling. We there held that admissions to ARD are to be counted in such determination.

Appellee chose a program where formal convictions could not be obtained. Before this Court appellee now wrongfully argues that the offenses underlying his admission into the A.R.D. program cannot be used to determine whether he is an habitual offender solely because he was not formally convicted of the underlying offenses. Such a result would be contrary to the legislative intent of Section 1542 to protect the public from reported incidences of careless driving by assessing additional penalties against persons categorized as habitual offenders.

McDevitt, 57 Pa. Commonwealth Ct. at 593, 427 A.2d at 282.

The appellant's due process arguments were not made the subject of questions involved and are not matters we need to consider. Pa. R.A.P. 2116. They are, in any event, without merit. The provision of the de novo hearing in the court of common pleas satisfied procedural due process. Commonwealth v. Grindlinger,

[ 70 Pa. Commw. Page 4077]

Pa. Commonwealth Ct. 347, 300 A.2d 95 (1973). Since Pa. R. Crim. P. 178 requires one admitted to ARD to waive his right to prove his innocence or risk conviction by entering a plea, he cannot now complain that he had no opportunity to prove that he was not guilty of the drunk driving charges. McDevitt, supra.

Order affirmed.

Order

And Now, this 17th day of December, 1982, the order of the Court of Common Pleas of Fayette County dated October 15, 1981 is hereby affirmed.

Disposition

Affirmed.


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