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Whalen v. Commonwealth of Pennsylvania

February 17, 2010

JOHN K. WHALEN
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



The opinion of the court was delivered by: Judge Simpson

Submitted: December 31, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

The primary question in this appeal is whether acceptance into an Accepted Rehabilitative Disposition (ARD) program for a second violation of 75 Pa. C.S. §3802 (relating to driving under the influence (DUI) of alcohol or controlled substance) precludes the Department of Transportation, Bureau of Driver Licensing (Department) from requiring a licensee to install ignition interlock systems (interlock systems) on his vehicles. The Department asserts the Court of Common Pleas of Mercer County (trial court)*fn1 lacked jurisdiction to consider John K. Whalen's (Licensee)*fn2 appeal of a Departmental determination requiring Licensee to equip all vehicles he owns with interlock systems. Alternatively, the Department assigns error in the trial court's conclusion the Department lacked authority to impose the interlock system requirement because Licensee's acceptance into the ARD program did not establish a violation of 75 Pa. C.S. §3802. We affirm.

In May, 1998, Florida authorities convicted Licensee of violating its general impairment statute. As a result, the Department suspended Licensee's operating privilege for one year, effective August 19, 1998. See Reproduced Record (R.R.) at 45a.

Nine years later, in July, 2007, Pennsylvania authorities charged Licensee with two counts of DUI and one count of careless driving. R.R. at 50a. In January, 2009, the trial court accepted Licensee into an ARD program.*fn3

The Department subsequently notified Licensee it was suspending his operating privileges for a period of 60 days, effective January 16, 2009. See 75 Pa. C.S. §3807(d)(3)(i) (pertaining to ARD and imposing a mandatory 60-day suspension where the licensee's blood alcohol concentration at time of testing is .16% or higher). The Department's letter also informed Licensee that prior to restoration of his operating privilege, the Department required installation of an interlock system on all vehicles he owns.*fn4

In March, 2009, Licensee appealed the Department's determination to the extent it required Licensee to install interlock systems on his vehicles. He asserted the Department's requirement was improper because his acceptance into an ARD program did not result in a conviction, a prerequisite to the Department's authority to require installation of interlock systems.

At hearing, the Department argued the trial court lacked jurisdiction to hear Licensee's appeal because 75 Pa. C.S. §1550 ("Judicial review"),*fn5 does not identify the requirement of an interlock system as a Departmental determination subject to judicial review. The trial court disagreed.

On the merits, the Department argued 75 Pa. C.S. §3805(a), below, only requires a showing a person violated 75 Pa. C.S. §3802, not that the person was convicted of DUI. Conversely, Licensee maintained 75 Pa. C.S. §3805 requires a conviction for DUI before the Department may require installation of interlock systems and, since acceptance into an ARD program does not constitute a conviction, the Department lacked authority to impose the interlock system requirement.

The esteemed trial court agreed with Licensee. The Department, in the trial court's opinion, failed to prove Licensee violated 75 Pa. C.S. §3802. The court determined there must be either an adjudication establishing a violation of 75 Pa. C.S. §3802, or a statutory mandate allowing a court or the Department to conclude that a pre-adjudication disposition establishes a "violation" of the Vehicle Code. Here, there was neither. Accordingly, the trial court sustained Licensee's appeal to the extent he challenged the Department's requirement that he install interlock systems on his vehicles.

The Department now appeals, challenging the trial court's jurisdiction and conclusion the Department lacked authority to require Licensee to install interlock systems on his vehicles. As the Department raises only questions of law, our review is plenary. McGrory v. Dep't of Transp., 591 Pa. 56, 915 A.2d 1155 (2007).

The statutory provision by which the Department seeks to require Licensee to install interlock systems on his vehicles is 75 Pa. C.S. §3805(a)(1). That section provides in relevant part (with emphasis added):

(a) General rule.--If a person violates section 3802 (relating to driving under influence of alcohol or controlled substance) and, within the past ten years, has a prior offense as defined in section 3806(a) (relating to prior offenses) or has had their operating privilege suspended pursuant to section 1547(b.1) (relating to chemical testing to determine the amount of alcohol or controlled substance) or 3808(c) (relating to operating a motor vehicle not equipped with ignition interlock) and the person seeks a restoration of operating ...


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