T.W. Redd, Jr. v. PennDOT, Bureau of Driver Licensing ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas W. Redd, Jr. :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 364 C.D. 2015
Appellant : Submitted: October 2, 2015
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 17, 2016
The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driving Licensing (DOT) appeals from the Lancaster County Common
Pleas Court’s (trial court) February 25, 2015 order reversing DOT’s order suspending
Thomas W. Redd, Jr.’s (Licensee) driving privileges for 90 days. The sole issue
before this Court is whether the trial court erred when it sustained Licensee’s appeal
and reversed DOT’s suspension due to Licensee’s violation of Section 6308 of the
Crimes Code2 (Section 6308 violation).
On August 31, 2014, Licensee was cited for a Section 6308 violation.
On November 8, 2014, pursuant to Section 6310.4(a) of the Crimes Code, 18 Pa.C.S.
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
2
18 Pa.C.S. § 6308 (prohibiting the purchase, consumption, possession, or transportation of
liquor or malt or brewed beverages by individuals under the age of twenty-one).
§ 6310.4(a),3 and Section 1534(a) of the Vehicle Code, 75 Pa.C.S. § 1534(a),4 the
Philadelphia Municipal Court notified DOT by form DL-21C that Licensee had been
convicted of the Section 6308 violation. By November 19, 2014 letter, DOT notified
Licensee that, in accordance with Section 1532(d) of the Vehicle Code,5 his driving
privileges would be suspended for 90 days.
Licensee appealed from the suspension to the trial court. At the trial
court hearing, DOT presented form DL-21C. Licensee testified that he enrolled in
the Philadelphia Municipal Court Summary Diversion Program (Program), an
3
Section 6310.4(a) of the Crimes Code provides:
Whenever a person is convicted . . . or is admitted to any
preadjudication program for a violation of [S]ection . . . 6308 [of the
Crimes Code] . . . , the court. . . shall order the operating privilege of
the person suspended. A copy of the order shall be transmitted to
[DOT].
18 Pa.C.S. § 6310.4(a).
4
Section 1534(a) of the Vehicle Code states:
Except as provided in subsection (b) [(pertaining to offenses relating
to driving under the influence of alcohol or controlled substances)], if
a person is arrested for any offense enumerated in [S]ection 1532
(relating to revocation or suspension of operating privilege) and is
offered and accepts Accelerated Rehabilitative Disposition under
general rules, the court shall promptly notify [DOT].
75 Pa.C.S. § 1534(a).
5
Section 1532(d) of the Vehicle Code states, in relevant part:
[DOT] shall suspend the operating privilege of any person upon
receiving a certified record of the driver’s conviction, . . . or
admission into a preadjudication program for a violation under . . .
[Section] 6308 [of the Crimes Code] . . . . The duration of the
suspension shall be as follows:
(1) For a first offense, [DOT] shall impose a suspension for a
period of 90 days.
75 Pa.C.S. § 1532(d).
2
Accelerated Rehabilitative Disposition-type program, for the Section 6308 violation.
Upon the successful completion of the Program, the charge was withdrawn and
Licensee’s record was expunged.6 In support of his testimony, Licensee produced a
receipt from the Philadelphia Municipal Court evidencing payment of the Program
class fee. After Licensee testified, the trial court asked DOT’s counsel for case law
supporting DOT’s contention that Licensee’s license must be suspended even after
successful completion of the Program and record expungement. Because DOT’s
counsel failed to provide supporting case law, the trial court sustained Licensee’s
appeal and rescinded the suspension.
The trial court, in its Pa.R.A.P. 1925(a) Opinion, acknowledged that it erred in
sustaining Licensee’s appeal:
It is now apparent that [DOT] did act in accordance with the
applicable statute but [the trial court] disregarded the clear
language of [Section] 1532(d) of the . . . Vehicle Code
requiring [DOT] to impose a 90-day suspension ‘upon
receiving a certified record of the driver’s . . . or admission
6
The trial court explained in its 1925(a) Opinion that:
The facts suggest that the [] form DL-21C was incorrectly filled out
by the Municipal Court. The Clerk is directed on the form to ‘check
one’ of three possible dispositions: conviction; preadjudication
disposition; or adjudication of delinquency. ‘Conviction’ was
checked on [Licensee’s] DL-21C (see Commonwealth Exhibit 1),
although the facts established at the hearing were that [Licensee] was
accepted into a diversion or preadjudication program. A diversion
program is an alternative to prosecution where the defendant does not
plead ‘guilty’ or ‘not guilty’ but rather the case is diverted out of the
trial track and placed into a pre-trial status where it remains until the
requirements of the program are successfully completed. There is no
conviction of a crime. Upon successful completion of the diversion
program, the charges are withdrawn or dismissed and the record
expunged, leaving no evidence of ever being charged. This is clearly
what happened in [Licensee’s] case.
Id. at 2-3 n.5.
3
into a preadjudication program for a violation under . . .
[Section] 6308 [of the Crimes Code]. . .’, 75 Pa.C.S.[] §
1532(d)(1), and the case law that has interpreted this
statutory language.
Id. at 5. DOT appealed to this Court.7,8
DOT argues that the trial court erred when it sustained Licensee’s appeal
and reversed DOT’s 90-day license suspension on the basis that Licensee had
successfully completed the Program and his record had been expunged. We agree.
This Court has held that
Section 1532(d) of the [Vehicle] Code states, in pertinent
part, that DOT will suspend the operating privileges of any
person upon receiving a certified record of the driver’s
conviction or admission into a preadjudication program
for underage drinking in violation of [S]ection 6308 of the
Crimes Code. Section 6310.4(a) of the Crimes Code also
provides, inter alia, that, whenever a person is admitted
into any preadjudication program for underage drinking,
the court shall order the operating privileges of the
person suspended.
Levinson v. Dep’t of Transp., Bureau of Driver Licensing, 926 A.2d 1284, 1286 (Pa.
Cmwlth. 2007) (bold emphasis added). Thus, notwithstanding Licensee’s successful
completion of the Program and the expungement of his record, DOT was required to
suspend Licensee’s operating privileges under Section 1532(d) of the Vehicle Code.
Accordingly, the trial court’s order is reversed.
___________________________
ANNE E. COVEY, Judge
7
“Our scope of review in a license suspension case is limited to determining whether
necessary findings are supported by competent evidence of record and whether the trial court
committed an error of law or abused its discretion in making its decision.” Levinson v. Dep’t of
Transp., Bureau of Driver Licensing, 926 A.2d 1284, 1285 n.5 (Pa. Cmwlth. 2007).
8
Because Licensee failed to comply with this Court’s August 24, 2015 order directing him
to file a brief in this appeal, he was precluded from filing one.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas W. Redd, Jr. :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, : No. 364 C.D. 2015
Appellant :
ORDER
AND NOW, this 17th day of February, 2016, the Lancaster County
Common Pleas Court’s February 25, 2015 order is reversed.
___________________________
ANNE E. COVEY, Judge