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Becker v. Commonwealth, Department of Transportation

Commonwealth Court of Pennsylvania

May 14, 2018

Frank Scott Becker, Appellant
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

          Submitted: April 20, 2018

          BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          DAN PELLEGRINI, SENIOR JUDGE.

         Frank Scott Becker (Becker) appeals an order of the Court of Common Pleas of Berks County (trial court) denying his license suspension appeal from the Department of Transportation, Bureau of Driver Licensing's (Department) one-year suspension of his operating privilege pursuant to Section 3804(e)(2)(i) of the Vehicle Code (Vehicle Code), 75 Pa. C.S. § 3804(e)(2)(i) (relating to suspension based upon a conviction for driving under the influence of alcohol (DUI)). We affirm.

         I.

         The facts in this case are not in dispute. On December 28, 2010, Becker was charged with DUI in violation of Section 3802(a)(1) of the Vehicle Code, [1] and he was convicted of this offense on October 15, 2012 (prior offense). The Department, in accordance with Section 3804(e)(2)(i) of the Vehicle Code, imposed a one-year suspension of Becker's operating privilege, effective December 11, 2012. Becker did not appeal his suspension for the prior offense, and his operating privilege was restored on December 17, 2013.

         On November 6, 2011, Becker was again charged with DUI in violation of Section 3802(a)(1) of the Vehicle Code (underlying offense). For reasons not contained within the record, he was not convicted of this underlying offense until August 28, 2015.

         The issue in this case is whether Becker falls within the exception to suspension set forth in Section 3804(e)(2)(iii) of the Vehicle Code that provides, "[t]here shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) [75 Pa. C.S. § 3804(a)] and the person has no prior offense." 75 Pa. C.S. §3804(e)(2)(iii). To fall within this exception to suspension, three conditions must be satisfied. First, the licensee must be convicted of violating 75 Pa. C.S. § 3802(a)(1) as an ungraded misdemeanor. Second, the licensee must be subject to the penalties contained in 75 Pa. C.S. § 3804(a). Third, the licensee must not have a "prior offense" as defined in Section 3806 of the Vehicle Code, 75 Pa. C.S. § 3806. Because the Department does not dispute that Becker satisfies the first two conditions, the only question is whether Becker had "no prior offense" when he was convicted on August 28, 2015, of DUI. Whether a person has a "prior offense" for suspension purposes is determined under Section 3806(b) of the Vehicle Code. The question here is what version of that provision applies to this appeal.

         When Becker was criminally charged with both the prior and underlying DUI offenses, Section 3806(b) of the Vehicle Code pertaining to prior offenses stated:

(b) Repeat offenses within ten years. - - The calculation of prior offenses for purposes of sections . . . 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation occurred for any of the following:
(1) an offense under section 3802 . . .[.]

Former Section 3806(b) of the Vehicle Code, 75 Pa. C.S. § 3806(b) (emphasis added).

         However, prior to his conviction on the underlying offense, the General Assembly enacted the Act of October 27, 2014, P.L. 2905, No. 189 (Act 2014-189), which amended Section 3806(b) to read as follows:

(b) Repeat offenses within ten years. - - The calculation of prior offenses for purposes of sections . . . 3804 (relating to penalties) shall include any conviction, whether or not judgment of sentence has been imposed for the violation, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary ...

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