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COMMONWEALTH PENNSYLVANIA v. JAMES GAMBLE (08/16/88)

filed: August 16, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
JAMES GAMBLE, APPELLEE



Appeal from the Order entered January 19, 1988 in the Court of Common Pleas of Bucks County, Criminal, No. 618 Misc. 1986.

Before: Brosky, Rowley and McEWEN, JJ.

Author: Mcewen

Opinion BY McEWEN, J.:

The Commonwealth has taken this appeal from an order which granted a motion in arrest of judgment as to the violation of 75 Pa.C.S. § 1543(b), filed by appellee after he had been found guilty by the trial court of violating Section 1543(a) and Section 1543(b) of the Vehicle Code.*fn1 We affirm.

Appellee was arrested on January 22, 1986, and charged with Driving Under the Influence of Alcohol, 75 Pa.C.S. § 3731(a).*fn2 Appellee refused to submit to a breathalyzer test at the time of his arrest and was, therefore, subject to an automatic one year suspension of his operating privileges pursuant to 75 Pa.C.S. § 1547(b). Appellee, at the time of the January 22, 1986, arrest, resided at 327 Crown Street in Morrisville, Pennsylvania. This address was noted on all police and court documents relating to the offenses committed on January 22, 1986. The Department of Transportation, however, two months later, on March 25, 1986, mailed a notice of a one year suspension to an address which had not been appellee's residence for over two years. Appellee never received the notification from the Department of Transportation informing him of (1) his suspension pursuant to Section 1547(b); and (2) the potential penalty he would face if he was subsequently convicted of Driving Under Suspension.

Appellee was again arrested five months later, on June 27, 1986, while operating a motor vehicle, and charged with violating Section 1543(a) of the Vehicle Code, which provides:

§ 1543. Driving while operating privilege is suspended or revoked

(a) Offenses defined. - Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

75 Pa.C.S. § 1543(a) (emphasis supplied).

Appellee was also charged with violating Section 1543(b) of the Vehicle Code, which provides:

§ 1543. Driving while operating privilege is suspended or revoked

(b) Certain offenses. - Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S. § 1543(b) (emphasis supplied).

The Department of Transportation records, introduced by the prosecution, reflect that appellant had not had a valid driver's license since 1978, when it was suspended for failure to respond to a citation. The appellee conceded that fact at his trial. Appellee testified, however, that he was not aware that he was under suspension on June 27, 1986, for refusing to submit to a breathalyzer test, but rather that he believed he was under suspension at that time for failure to respond to citations. Appellee further testified that he had been making weekly payments on his outstanding fines in order to qualify for the restoration of his operating privileges, at which time he believed ...


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