Appeal from the Order of the Court of Common Pleas of Mifflin County in the case of Commonwealth of Pennsylvania v. Marlin G. Conner, Civil Action No. 1538 of 1980.
Harold H. Cramer, Assistant Counsel, with him, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Lester H. Zimmerman, Jr., Barron & Zimmerman, for appellee.
Judges Rogers and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Mifflin County sustaining the appeal of Marlin G. Conner (Licensee) from the revocation by DOT of Licensee's operating privileges for a five year period pursuant to Section 1542 of the Vehicle Code (New Code), 75 Pa. C.S. § 1542 (habitual offender provision).
The sole issue for our consideration is whether an offense committed by Licensee on April 30, 1977 when the Vehicle Code of 1959*fn1 (1959 Code) was in effect should be counted in determining whether the Licensee is a habitual offender under Section 1542 of the New Code. The trial court held that it should not.
Licensee's first conviction resulted from a violation of Section 1037 of the 1959 Code. Section 1037 provided in pertinent part, "It shall be unlawful for any person to operate a motor vehicle . . . while under the influence of intoxicating liquor. . . ." Licensee's other two convictions arose under Section 3731 of the New Code and stemmed from violations occurring on September 10, 1977 and May 17, 1980 respectively. Section 3731, prior to a 1982 amendment not relevant here, provided in pertinent part, "A person shall not drive any vehicle while: (1) under the influence of alcohol to a degree which renders the person incapable of safe driving. . . ."
DOT counted the above noted three violations and then revoked Licensee's operating privileges for a five year period pursuant to the habitual offender section of the New Code.
Subsection (a) of Section 1542 of the New Code defines a habitual offender as follows:
A 'habitual offender' shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of ...