The opinion of the court was delivered by: Judge Simpson
Submitted: November 14, 2008
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
The issue in this driver's license suspension appeal is whether Travis James Gigous (Licensee) is a first-time offender and therefore not subject to license suspension for a violation of Section 3802(a)(1) of the Vehicle Code, 75 Pa. C.S. §3802(a)(1) (driving under the influence of alcohol or controlled substance (DUI), general impairment). Licensee appeals an order of the Court of Common Pleas of Adams County (trial court) that upheld a 12-month suspension of his operating privileges because he had a prior offense. Upon review, we affirm.
Authorities charged Licensee with DUI for an incident occurring on April 13, 2006, in Adams County (Adams County DUI violation). While charges relating to the first DUI violation were pending, authorities charged Licensee with a second DUI for an incident occurring on May 20, 2007, in neighboring Franklin County (Franklin County DUI violation).
On August 1, 2007, a court placed Licensee in Alternative Rehabilitative Disposition (A.R.D.) for the Franklin County DUI violation. Finally, on January 3, 2008, Licensee pled guilty to the Adams County DUI violation.
Based on this information, PennDOT determined Licensee had a prior DUI offense and therefore suspended Licensee's operating privileges for 12 months pursuant to 75 Pa. C.S. §3804(e)(2)(i) for the Adams County DUI violation. Licensee filed a statutory appeal with the trial court.
Before the trial court, Licensee argued that PennDOT misapplied 75 Pa. C.S. §3806(a) in determining he had a prior DUI offense. Licensee asserted 75 Pa. C.S. §3806(b) (repeat offenses within 10 years) controlled the "look-back" period for determining prior offenses. Section 3806(b) calculates a prior offense as any disposition of an offense within 10 years before the present violation occurred. Thus, according to Licensee, PennDOT could not consider Licensee's A.R.D. placement for the Franklin County DUI violation a prior offense, because the violation occurred after the Adams County DUI violation. Claiming no pre-occurrence offense, Licensee asserted he qualified for a special first-offender non-suspension treatment under 75 Pa. C.S. §3804(e)(2)(iii).
The esteemed trial court disagreed and held the general rule in Section 3806(a) controlled the outcome. Unlike Section 3806(b), the general rule in Section 3806(a) counts a prior offense when the disposition of the offense occurred "before the sentencing on the present violation .." 75 Pa. C.S. §3806(a) (emphasis added). Thus, the relevant inquiry is not the timing of violations, but the timing of sentencing. In reaching this conclusion, the trial court found persuasive Superior Court decisions on the same issue that reached the same result in the criminal context. See, e.g., Commonwealth v. Nieves, 935 A.2d 887 (Pa. Super. 2007), appeal denied, ___ Pa. ___, 951 A.2d 1162 (2008).
On appeal,*fn1 Licensee argues PennDOT lacked sufficient evidence to prove he had a prior offense to justify the suspension of his operating privileges because Section 3806(b) controls the determination of prior offenses. Licensee asserts the Superior Court wrongly decided Nieves and invites this Court to reach a contrary result.
In response, PennDOT first argues Licensee failed to rebut prima facie evidence he was not sentenced under 75 Pa. C.S. §3804(a)(1) (penalties for first-time DUI offenders); therefore, he was not eligible for the special first-offender no-suspension sentence in 75 Pa. C.S. §3804(e)(2)(iii). Further, PennDOT urges this Court to adopt the Superior Court's persuasive interpretation of Section 3806.
Section 3806 of the Vehicle Code, relating to prior offenses, provides:
(a) General rule.--Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition ...