Argued: October 3, 2019.
BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE
CHRISTINE FIZZANO CANNON, Judge HONORABLE ROBERT SIMPSON,
KEVIN BROBSON, Judge.
Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Bureau), appeals from an order of
the Court of Common Pleas of Allegheny County (trial court),
dated June 28, 2018. The trial court's order sustained
the appeal of Kathryn Leigh Diveglia (Licensee), thereby
effectively reversing Licensee's license suspension. For
the reasons discussed below, we reverse the trial court's
February 27, 2016, Licensee violated Section 3802(a)(1) of
the Vehicle Code, 75 Pa. C.S. § 3802(a)(1), by
committing the offense of driving under the influence of
alcohol (DUI), which was an "ungraded
misdemeanor" (First DUI). (Reproduced Record (R.R.) at
23a, 46a.) On November 15, 2016, Licensee was accepted into
the Accelerated Rehabilitative Disposition program (ARD) in
connection with the First DUI. (Id. at 46a.) On
November 18, 2016, three days after Licensee began ARD, she
committed another DUI (Second DUI). The Second DUI is an
offense under Section 3802(c) of the Vehicle Code, 75 Pa.
C.S. § 3802(c)- i.e., "[h]ighest rate of
alcohol"-which is graded as a misdemeanor of the first
degree. As a result of committing the Second DUI,
Licensee failed to complete ARD. (Id. at 28a, 46a.)
The trial court convicted Licensee on the Second DUI
charge on August 9, 2017, and convicted Licensee on the
First DUI charge-as a result of failing to complete
ARD-on March 2, 2018. (Id. at 23a, 28a.)
civil collateral consequence of Licensee's offenses, the
Vehicle Code mandates that the Bureau suspend Licensee's
driver's license for a certain period of time, depending
on the severity of the offense and any prior
offenses.With respect to the Second DUI, on August
11, 2017, the Bureau received a certified record of
Licensee's conviction. (R.R. at 28a.) As a result, the
Bureau suspended Licensee's operating privilege for a
period of eighteen months pursuant to Section 3804(e)(2)(ii)
of the Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(ii), which
imposes an eighteen-month suspension. (Id. at 24a.)
Thereafter, on March 7, 2018, the Bureau received a certified
record of Licensee's conviction for the First DUI.
(Id. at 23a.) Licensee's conviction on the First
DUI charge resulted in the Bureau suspending Licensee's
operating privilege for twelve months pursuant to Section
3804(e)(2)(i) of the Vehicle Code. (Id. at 20a.)
21, 2017, Licensee appealed to the trial court the
Bureau's decision to suspend her license for a period of
twelve months. (Id. at 3a.) On June 28, 2018,
the trial court held a hearing in order to determine whether
the Bureau's year-long suspension of Licensee's
operating privilege was improper. (Id. at 7a-17a.)
At the hearing, counsel for Licensee argued that at the time
of Licensee's conviction on the First DUI charge she had
no prior offense and was subject to the exception to license
suspension as provided by Section 3804(e)(2)(iii) of the
Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(iii); therefore,
the Bureau should not have suspended Licensee's operating
privilege. (Id. at 13a-14a.) In response, the Bureau
contended that the conviction for the First DUI
occurred second in time to the conviction for the
Second DUI, and, therefore, the conviction on the Second DUI
charge operated as a prior offense. (Id. at
14a-16a.) At the hearing, the trial court judge agreed with
counsel for Licensee and sustained Licensee's appeal.
(Id. at 17a.) In so doing, the trial court judge, in
referring to the conviction on the First DUI charge,
reasoned: "It was her first offense. You can't
change the calendar. This appeal is sustained[, ] and you can
tell them to appeal me." (Id. at 17a.)
Thereafter, on June 28, 2018, the trial court issued an order
sustaining Licensee's appeal. (Id. at 33a.) The
Bureau then appealed to this Court.
appeal,  the Bureau argues that the trial court
committed an error of law in concluding that Licensee was
entitled to the exemption from license suspension set forth
in Section 3804(e)(2)(iii) of the Vehicle Code. Specifically,
the Bureau contends that Licensee was convicted of the Second
DUI before she was convicted of the First DUI, such that the
Second DUI operates as a prior offense, and, therefore,
Licensee may not take advantage of the exemption from license
suspension. Licensee counters, contending the trial court
correctly concluded that her commission of the First
DUI prior in time to the Second DUI means that Licensee had
no prior offense and the Bureau should have applied the
exemption from license suspension in this instance.
3802 of the Vehicle Code delineates the various offenses
pertaining to driving under the influence of alcohol or a
controlled substance, and Section 3804 of the Vehicle Code,
75 Pa. C.S. § 3804, pertaining to penalties, sets forth
both the criminal and civil consequences for convictions for
those offenses. Section 3804(e) of the Vehicle Code, 75 Pa.
C.S. § 3804, governs "suspension of operating
privilege upon conviction" and provides:
(1) The department shall suspend the operating privilege of
an individual under paragraph (2) upon receiving a certified
record of the individual's conviction of or an
adjudication of delinquency for:
(i) an offense under [S]ection 3802 [of the Vehicle Code]; or
(ii) an offense which is substantially similar to an offense
enumerated in [S]ection 3802 [of the Vehicle Code] reported
to the department under Article III of the compact in section
1581 (relating to Driver's License Compact).
(2) Suspension under paragraph (1) shall be in accordance
with the following:
(i) Except as provided for in subparagraph (iii), 12
months for an ungraded misdemeanor or misdemeanor of the
second degree under this chapter.
(ii) 18 months for a misdemeanor of the first degree
or felony of the third degree under this chapter.
(iii) There shall be no suspension for an ungraded
misdemeanor under [S]ection 3802(a)
[of the Vehicle Code] where the person is
subject to the penalties provided in subsection (a) and the
person has no prior offense.
(Emphasis added.) The exception set forth in Section
3804(e)(2)(iii) of the Vehicle Code applies if three
conditions are met:
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.
Becker v. Dep't of Transp., Bureau of Driver
Licensing, 186 A.3d 1036, 1037-38 (Pa. Cmwlth. 2018).
Here, there is no dispute that Licensee meets the first two
requirements. We will, therefore, address the remaining
question of whether, at the time Licensee was convicted on
the First DUI charge, Licensee had a ...