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Dick v. Commonwealth

August 5, 2010

DAVID EUGENE DICK
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Submitted: May 28, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of the 26th Judicial District (Columbia County Branch) (trial court) sustaining the appeal of David Eugene Dick (Licensee) from a one year suspension of his operating privileges following his 2009 conviction for Driving under the Influence of Alcohol (DUI). DOT issued the suspension, pursuant to Section 3804(e)(2) of the Vehicle Code,*fn1 on the basis of certified conviction reports showing that Licensee had been convicted of DUI in Maine less than ten years before he committed his most recent violation, disqualifying him from the exception found at Section 3804(e)(2)(iii) for licensees without prior offenses. Licensee appealed this suspension to the trial court. After hearing testimony and receiving evidence indicating that Licensee was arrested for DUI in Maine in 1985, but did not receive credit for satisfying the charges until 2004, the trial court sustained the appeal and rescinded the suspension. DOT appeals this order, claiming that the trial court abused its discretion in holding that Licensee presented clear and convincing evidence to rebut the certified conviction report introduced by DOT.

Licensee testified that he spent the summer of 1985 working in Maine, while intending to return to college in Ohio that fall. (Hr'g Tr. at 9, January 22, 2010, R.R. at 19a.) On June 28, 1985, he was arrested and subsequently charged with operating a motor vehicle with a blood alcohol concentration in excess of .10%. The record is not clear as to precisely what happened next, but it appears that Licensee consulted a Maine attorney, who informed him that he could simply return to Ohio without addressing the DUI charge because Maine and Ohio did not have a reciprocity agreement. (Hr'g Tr. at 10, R.R. at 20a.) Shortly thereafter, Licensee moved to Pennsylvania, turned in his Ohio driver's license, and applied for a Pennsylvania license. Unfortunately for Licensee, Maine and Pennsylvania did have a reciprocity agreement and, when DOT discovered that Licensee was still serving his Maine suspension, it canceled his Pennsylvania license effective August 1, 1986.

Licensee testified that, after DOT cancelled his license, he began contacting various unidentified officials in Maine in an attempt to resolve the DUI charge. (Hr'g Tr. at 14, R.R. at 24a.) He testified that he was eventually told by an unnamed official that he could resolve the charges by completing an ARD-type DUI class and sending the documentation to Maine. (Hr'g Tr. at 14, R.R. at 24a.) The record indicates that Licensee graduated from Columbia County's DUI Counter-Measures Program in 1991. (Certificate of Completion, November 17, 1991, R.R. at 71a.)*fn2 Licensee testified that he sent his certificate of completion to the appropriate officials in Maine. (Hr'g Tr. at 14, R.R. at 24a.) Licensee did not provide any evidence to support this testimony, or to prove that the appropriate officials received the documents. Maine did not remove the suspension from his license at that time.

Licensee testified that sometime "in the 2000s," a Maine Assistant District Attorney told him over the phone that, as far as Maine was concerned, Licensee had failed to appear and was considered a fugitive. (Hr'g Tr. at 15, R.R. at 25a.) In 2004, Licensee returned to Maine and turned himself in at a Sheriff's office in Knox County, where he spent the night in jail and paid a fine to satisfy the DUI charge. Although Licensee's testimony was not entirely clear as to exactly what took place during the visit to Knox County, DOT introduced a certified conviction report from the Knox County Superior Court in Maine indicating that, on November 30, 2004, Licensee pled guilty and was convicted of DUI. (Abstract of Superior Court Record of Violation of Motor Vehicle Law, R.R. at 58a.) Following his 2004 plea, DOT suspended Licensee's license for one year pursuant to the Driver's License Compact, 75 Pa. C.S. § 1581. Licensee appealed this suspension to the trial court, which dismissed his appeal.*fn3 Licensee did not appeal the trial court's order.

Licensee was arrested in Pennsylvania for DUI in 2008 and pled guilty to the charge in 2009. Shortly after his plea DOT notified him that, due to his 2004 DUI conviction in Maine, his license had been suspended for twelve months. Licensee, who pled guilty under the impression that his license would not be suspended, appealed the suspension to the trial court, arguing that his most recent DUI had occurred in 1985, well outside the ten year look-back window imposed by 75 Pa. C.S. § 3806(b). At the hearing DOT introduced, among other exhibits, certified conviction reports from Maine and Pennsylvania showing that Licensee had been convicted of DUI in 2004 in Maine, and had committed a second violation in Pennsylvania on October 13, 2008. These certified conviction reports failed to persuade the trial court, which granted Licensee's appeal and rescinded his suspension. DOT now appeals the trial court's order to this Court.*fn4

In general, DOT is required to issue a license suspension under Section 3804(e) to any licensee convicted of DUI under Section 3802 of the Vehicle Code.

75 Pa. C.S. §§ 3802, 3804(e). This general rule is limited by Section 3804(e)(2)(iii), which prohibits DOT from imposing a suspension if the licensee has no prior offense, and was convicted of an ungraded misdemeanor. For the purposes of determining a DUI offender's eligibility for this exception, the term "prior offense" includes:

Any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition*fn5 or other form of preliminary disposition within the ten years before the present violation occurred.

75 Pa. C.S. § 3806(b) (emphasis added); see also Commonwealth v. Haag, 603 Pa. 46, 54-55, 981 A.2d 902, 907 (2009) (holding that when calculating the defendant's prior record for the sentence enhancement and suspension provisions of 75 Pa. C.S. § 3804, the definition of prior offense is provided by 75 Pa. C.S. § 3806(b) and not 3806(a).)

Once DOT introduces certified conviction records showing that a licensee's record merits a suspension, it has established a prima facie case and the burden shifts to the licensee, who must then prove by clear and convincing evidence that the conviction did not occur. Roselle v. Department of Transportation, Bureau of Driver Licensing, 865 A.2d 308, 314 (Pa. Cmwlth. 2005); Glidden v. Department of Transportation, Bureau of Driver Licensing, 962 A.2d 9, 12 (Pa. Cmwlth. 2008). Clear and convincing evidence is defined as "evidence that is so clear and direct as to permit the trier of fact to reach a clear conviction, without hesitancy, as to the truth of the facts at issue." Mateskovich v. Department of Transportation, Bureau of Driver Licensing, 755 A.2d 100, 102 n.6 (Pa. Cmwlth. 2000) (quoting Sharon Steel Corporation v. Workmen's Compensation Appeal Board, 670 A.2d 1194, 1199 (Pa. Cmwlth. 1996)). To rebut a prima facie case established by a certified conviction record, the licensee must either challenge the regularity of the record, or introduce direct evidence showing that the record is incorrect and that the conviction was never entered. Id. at 102.

At the hearing, DOT introduced certified records showing that Licensee was convicted of DUI in Maine in 2004 and in Pennsylvania in 2009. (Abstract of Superior Court Record of Violation of Motor Vehicle Law, November 30, 2004, R.R. at 58a; Report of the Clerk of Courts, May 12, 2009, R.R. at 39a.) These records show that Licensee's driving record required DOT to impose a one year suspension pursuant to Section 3804(e)(2). Thus, DOT established its prima ...


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