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Commonwealth v. Haag

October 23, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
PATRICK A. HAAG, SR., APPELLANT



Appeal from the Order of the Superior Court filed February 8, 2008, at 1827 MDA 2006, affirming the Judgment of Sentence of the Court of Common Pleas of York County, Criminal Division, at No. CP-67-: 0002055-2006, entered September 25, 2006.

The opinion of the court was delivered by: Mr. Justice McCAFFERY

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

SUBMITTED: May 12, 2009

OPINION

In this appeal, we are asked to determine whether two offenses of Driving Under the Influence of Alcohol ("DUI") occurring within one and one-half hours of each other should be considered first and second offenses for purposes of sentencing under the recidivist provisions of the Vehicle Code. Because we conclude that 75 Pa.C.S. § 3806(b) requires that an offender have a conviction, or other specified form of judicial process, on a precedent offense prior to the commission of a subsequent violation in order for the subsequent offense to be considered a "second offense" for sentencing purposes, we vacate Appellant's judgment of sentence and remand to the trial court for resentencing.

At 11:40 p.m. on January 12, 2006, a police officer stopped the vehicle of Appellant, Patrick A. Haag, Sr., on suspicion that he was driving under the influence of alcohol.

Appellant was transported to a hospital where his blood was tested, revealing a blood alcohol content ("BAC") of 0.16%. Appellant was charged with DUI under 75 Pa.C.S. § 3802(a)(1) (General impairment) and § 3802(c) (Highest rate of alcohol) and was subsequently released to the custody of his wife. At 1:00 a.m. on January 13, 2006, approximately one and one-half hours after the first arrest, the police again spotted Appellant driving the same vehicle. Appellant was again arrested. After a blood test revealed a BAC of 0.146%, Appellant was charged with a second DUI offense, this time under 75 Pa.C.S. § 3802(a)(1) (General impairment) and § 3802(b) (High rate of alcohol).

The Commonwealth filed a motion to consolidate the charges, and Appellant filed a motion in limine prior to trial requesting that the court consider the offenses as two first offenses in accordance with 75 Pa.C.S. § 3806(b). The trial court granted the Commonwealth's motion and denied Appellant's motion. At a subsequent bench trial, Appellant was found guilty of violating Sections 3802(c) and 3802(b).*fn1 The trial court sentenced Appellant to the mandatory minimum term of imprisonment of 72 hours to 6 months for the first violation, the 11:40 p.m. offense, pursuant to 75 Pa.C.S. §§ 3804(c)(1).*fn2

Then, characterizing the 11:40 p.m. offense as a "prior offense," the trial court sentenced Appellant to the mandatory minimum term of incarceration for a "second offense" (30 days' to 6 months' incarceration) for the 1:00 a.m. violation, pursuant to 75 Pa.C.S. § 3804(b)(2).*fn3

The sentence on the second conviction was stayed pending Appellant's appeal to the Superior Court.

The Superior Court affirmed the judgment of sentence after performing an analysis focused primarily on whether the 11:40 p.m. offense and the 1:00 a.m. offense should be considered as two separate offenses for purposes of grading under 75 Pa.C.S. § 3803. Commonwealth v. Haag, 1827 MDA 2006 (Pa.Super. filed February 8, 2008) (unpublished opinion). Although the court acknowledged that conviction for an offense prior to the commission of another offense is required before there can be what the Superior Court characterized as "enhancement of the mandatory minimum [sentence] under [S]section 3806," the court concluded that it need only address whether the trial court properly graded the DUI offenses as first and second offenses, respectively, under Section 3803. Id. at 3-5.*fn4 The court failed to further address the relevant issue of sentencing.

We granted allowance of appeal to determine whether Appellant's first DUI offense, the 11:40 p.m. violation, which occurred less than two hours before the commission of his subsequent DUI offense, the 1:00 a.m. violation, qualifies as a "prior offense" under 75 Pa.C.S. § 3806 for purposes of sentencing on the subsequent offense. Commonwealth v. Haag, 957 A.2d 226 (Pa. 2008). Statutory interpretation presents a pure question of law. As such, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Leidig, 956 A.2d 399, 403 (Pa. 2008).

Penalties for a violation of 75 Pa.C.S. § 3802(b) (High rate of alcohol), under which Appellant was charged for the 1:00 a.m. offense, are set forth in 75 Pa.C.S. § 3804(b). If this violation is treated as a "first DUI offense," the mandatory minimum sentence includes a term of incarceration of not less than 48 consecutive hours. 75 Pa.C.S. § 3804(b)(1)(i). However, if this violation is treated as a "second DUI offense," the mandatory minimum sentence includes incarceration for a period of not less than 30 days. 75 Pa.C.S. § 3804(b)(2)(i). To determine whether the 1:00 a.m. violation ...


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