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08/12/97 H. STEVEN MCGOWAN v. COMMONWEALTH

August 12, 1997

H. STEVEN MCGOWAN
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



Appealed From No. 96-4060-20-6. Common Pleas Court of the County of Bucks. Judge CLARK.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY SENIOR JUDGE NARICK

FILED: August 12, 1997

The issue before us in this appeal is whether the Court of Common Pleas of Bucks County (trial court) erred by finding that H. Steven McGowan (McGowan) was not a habitual offender under Section 1542 of the Vehicle Code *fn1 because two of his three driving under the influence of alcohol offenses (DUI's) arose from one single act of intoxication rather than separate acts.

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the trial court that sustained McGowan's appeal of a five-year revocation of his operating privileges. We reverse.

The facts elicited at the de novo hearing on McGowan's statutory appeal are undisputed. On August 18, 1991, McGowan was charged with DUI. *fn2 On December 5, 1991, McGowan accepted Accelerated Rehabilitative Disposition (ARD) on that charge and his operating privileges were suspended for a period of 30 days. *fn3 At approximately 11:30 p.m. on October 22, 1995, McGowan was arrested by an officer of the Bensalem Police Department and again he was charged with DUI. At the police station, McGowan submitted to a breathalyzer test that resulted in a blood alcohol content (BAC) reading of 0.17%. After the breathalyzer results were obtained, the police drove McGowan to his home. While at home, McGowan became upset at the BAC reading because he did not understand how his BAC could register 0.17% when he stopped drinking at 8:00 p.m. that evening. McGowan then retrieved his car, which was parked up the street, and drove to the Bensalem police station to ask for another breathalyzer test.

At the police station, the same officer who initially arrested McGowan refused to give him another test and told him to go home. McGowan then left the station at approximately 1:00 a.m. on October 23, 1995 and started to drive home. After McGowan drove approximately one-quarter of a mile from the police station, he was again arrested for DUI. He submitted to another breathalyzer test that yielded a BAC result of 0.14%.

On March 6, 1996, McGowan pled guilty to both DUI charges and he was sentenced to two concurrent terms of thirty days to one year imprisonment. The Clerk of Courts of Bucks County then forwarded certification of McGowan's two DUI convictions to DOT. By official notices, DOT informed McGowan that his March 6, 1996 convictions placed him in the "habitual offender" category under Section 1542 of the Vehicle Code. As a result, his operating privileges were revoked for a period of five years. McGowan appealed to the trial court.

At the hearing, McGowan claimed that the two DUI offenses of October 22 and 23, 1995 arose out of the same act because they occurred one and a half hours apart on the same night and involved the same police department. Thus, McGowan argued that his last two DUI convictions did not make him a habitual offender because Section 1542 requires three convictions arising from separate acts. *fn4

The trial court agreed with McGowan and determined that his behavior during the one and one-half hour period on October 22 and 23, 1995 was all related to the same drinking episode. The trial court further determined that each separate driving incident was related to the original stop and the first breathalyzer test. Relying on the Pennsylvania Supreme Court's decision in Frontini v. Department of Transportation, 527 Pa. 448, 593 A.2d 410 (1991), the trial court concluded that the two DUI convictions on March 6, 1996 did not arise from "separate acts" as required by the habitual offender statute. Thus, McGowan's statutory appeal was sustained and the five-year license revocation was rescinded. DOT now appeals to this Court. *fn5

Under the habitual offender provision of Section 1542, a habitual offender is statutorily defined as any person who is convicted within a five-year period of three serious traffic offenses that arose from separate acts. 75 Pa. C.S. §§ 1542(a) and (b). There is no question in this case that McGowan incurred a DUI conviction in 1991. The question is whether McGowan's subsequent convictions for DUI on March 6, 1996 arose from one act or separate acts for the purpose of determining the number of convictions under Section 1542.

DOT argues that the trial court committed an error of law by ruling that McGowan's DUI offenses on October 22 and 23, 1995 did not arise from "separate acts" within the meaning of 75 Pa. C.S. § 1542(b). DOT contends that the two DUI offenses arose from separate acts committed by McGowan at separate times during the night and were not part of a single, continuous criminal episode. In support, DOT asserts that Department of Transportation, Bureau of Traffic Safety v. Frye, 88 Pa. Commw. 380, 489 A.2d 984 (Pa. Commw. 1985), affirmed per curiam, 514 Pa. 219, 523 A.2d 332 (1987) controls the instant case rather than Frontini. We agree.

In Frye, the driver committed four serious traffic violations in a single night. *fn6 Based on his convictions for these violations, DOT classified Frye as a habitual offender under Section 1542. On appeal, Frye contended that the habitual offender statute only took effect when a driver committed offenses enumerated in Section 1542(b) on three separate, unconnected points in time. Thus, Frye claimed he was not a habitual offender because his violations all occurred in one evening within a narrow time frame. We rejected this argument and held that the habitual offender statute "takes effect whenever there are three convictions ...


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