Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Mifflin County at Criminal Action No. 229 of 1986.
Gary Lysaght, Lemoyne, for appellant.
Keith E. Kendall, Assistant District Attorney, Lewistown, for Com., appellee.
Cavanaugh, Melinson and Watkins, JJ.
[ 379 Pa. Super. Page 36]
This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Mifflin County sentencing appellant for his violation of 75 Pa.C.S.A. Section 1543(b). We affirm.
The facts of the case are undisputed. On 31 March 1985, appellant, John A. Hill, was arrested and charged with a violation of 75 Pa.C.S.A. Section 3731, driving while under the influence of alcohol. In addition, Hill was charged with violating 75 Pa.C.S.A. Section 1547(b)(1) as a result of his refusal to submit to a chemical breath test. The charge of driving under the influence of alcohol was dismissed at a preliminary hearing before a District Justice. However, Hill's license was automatically suspended, effective 31 August 1985, for one year for his failure to submit to a chemical breath test.
On 30 June 1986, Hill was convicted by a District Justice of violating 75 Pa.C.S.A. Section 1543(b) by driving a motor vehicle while his operator's license was already under suspension for his previous violation of Section 1547(b)(1). Hill appealed his conviction to the Court of Common Pleas of Mifflin County. The Honorable Francis A. Searer presided over a de novo trial at which Hill was convicted. The learned trial court imposed the mandatory minimum sentence of ninety days' incarceration, fined Hill One Thousand Dollars ($1,000.00), suspended his operator's license an additional
[ 379 Pa. Super. Page 37]
six months, and ordered him to pay the costs of prosecution. The trial court granted Hill leave to file a post-trial motion nunc pro tunc. Subsequently, the motion was denied by the trial court and this timely appeal followed.
On appeal, Hill claims that Section 1543(b) is unconstitutional as applied to him. More specifically, Hill contends that the sentence constitutes cruel and unusual punishment and, therefore, is unconstitutional because he is subject to the mandatory sentence regardless of the factual circumstances of his case; that Section 1543(b), as applied, violates due process of law because he was denied the opportunity to present evidence of mitigating circumstances in support of a lesser sentence; and, that he, as a member of an alleged "suspect sub-class" of DUI-related suspension offenders, was denied equal protection under the law because he received the same mandatory sentence for a DUI-related suspension as a person who was actually convicted for driving while under the influence of alcohol.
Although Hill does not challenge the constitutionality of 75 Pa.C.S.A. Section 1547 ("Implied Consent Law"), he does challenge the validity of Section 1543 as applied to him. Therefore, a review of the Implied Consent Law and the purpose underlying the Implied Consent Law is relevant to our determination of the constitutionality of the enhancement provisions of Section 1543. Section 1547 provides, in pertinent part:
Section 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule. -- Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:
[ 379 Pa. Super. Page 38]
(1) while under the influence of alcohol or a controlled ...