K.E. Withers v. PennDOT, Bureau of Driver Licensing ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karyn Elizabeth Withers, :
:
Appellant :
:
v. : No. 2202 C.D. 2015
: Submitted: April 29, 2016
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: August 4, 2016
This matter is an appeal from an order of the Court of Common Pleas
of Centre County (trial court) denying the appeal of Karyn Elizabeth Withers
(Withers) from a two-year revocation of her driver’s license imposed by the
Department of Transportation, Bureau of Driver Licensing (Department) under
Section 1543(c)(2) of the Vehicle Code1 for driving while her operating privilege
was under revocation. We affirm.
On July 27, 2007, Withers was convicted of driving under the
influence of alcohol (DUI) in violation of 75 Pa. C.S. § 3802(c) (driving under
influence of alcohol or controlled substance—highest rate of alcohol) on
September 2, 2006. (Record Item (R. Item) 10, Commonwealth Ex. 1,
1
75 Pa. C.S. § 1543(c)(2).
Supplemental Reproduced Record (Supp. R.R.) at 19b.) The Department imposed
an 18-month suspension of her operating privilege in accordance with 75 Pa. C.S.
§ 3804(e)(2)(ii), effective November 9, 2007, the date that she surrendered her
driver’s license. (Id., Supp. R.R. at 17b, 19b.) On September 25, 2007, Withers
was convicted of an additional violation of 75 Pa. C.S. § 3802(c) for a DUI that
occurred on June 29, 2007. (Id., Supp. R.R. at 17b.) Because Withers also had a
2003 Accelerated Rehabilitative Disposition (ARD) DUI and therefore had three
ARDs or convictions for DUI committed within a five-year period, the Department
mailed Withers a notice of revocation on January 22, 2008, imposing a five-year
revocation of her operating privilege as a habitual offender for that conviction in
accordance with 75 Pa. C.S. § 1542. (Id., Supp. R.R. at 15b-16b, 19b.) This notice
stated that “[y]ou have been designated as a habitual offender because this is your
third major violation within a five year period” and that “[y]our driving privilege is
REVOKED for a period of 5 YEAR(S) effective 05/09/2009 at 12:01 a.m.,” when
Withers’ 18-month suspension for her July 27, 2007 DUI conviction ended. (Id.,
Supp. R.R. at 15b) (emphasis omitted).
On October 7, 2008, Withers was convicted of violating 75 Pa. C.S. §
1543 for driving while her operating privilege was suspended or revoked on
September 5, 2008. (R. Item 10, Commonwealth Ex. 1, Supp. R.R. at 13b-14b.)
Section 1543(c) of the Vehicle Code requires that upon receipt of a certified record
of a conviction for driving while operating privilege are suspended or revoked,
the department shall suspend or revoke that person’s operating
privilege as follows:
(1) If the department’s records show that the person was under
suspension, recall or cancellation on the date of violation, and
had not been restored, the department shall suspend the
person’s operating privilege for an additional one-year period.
2
(2) If the department’s records show that the person was under
revocation on the date of violation, and had not been restored,
the department shall revoke the person’s operating privilege
for an additional two-year period.
75 Pa. C.S. § 1543(c).
On October 14, 2008, the Department mailed Withers a notice
imposing a one-year suspension of her operating privilege for her October 7, 2008
conviction, effective May 9, 2014, when her five-year revocation ended. (R. Item
10, Commonwealth Ex. 1, Supp. R.R. at 11b-12b.) Before the expiration of her
five-year revocation and that one-year suspension for her 2008 conviction, Withers
was again convicted, on April 16, 2012, of driving while her operating privilege
was suspended or revoked. (Id., Supp. R.R. at 7b-8b.) By notice mailed on April
25, 2012, the Department imposed an additional two-year revocation of Withers’
operating privilege, effective May 9, 2015, extending the suspension and
revocations of her operating privilege to May 2017. (Id., Supp. R.R. at 5b-6b.)
In 2015, while Withers’ operating privilege remained under
revocation, the Department concluded that Section 1543(c) required that it impose
a two-year revocation rather than a one-year suspension for her 2008 conviction
because it was for a violation that occurred after the January 22, 2008 notice of
revocation was issued. (R. Item 10, Commonwealth Ex. 1, Supp. R.R. at 4b.)
Accordingly, the Department, on June 18, 2015, mailed Withers a notice of
revocation, changing her one-year suspension for the 2008 conviction to a two-
year revocation, effective May 9, 2014. (Id., Supp. R.R. at 9b-10b.) The
Department on the same date also mailed her an additional notice concerning the
two-year revocation for her 2012 conviction, correspondingly changing the
effective date of that revocation to May 9, 2016. (Id., Supp. R.R. at 2b-3b.)
3
Withers filed a timely appeal to the trial court from the June 18, 2015
two-year revocation of her license for the 2008 conviction. At the de novo hearing
held by the trial court, the Department introduced in evidence a certified copy of
Withers’ driver’s license record, showing her convictions and license suspensions
and revocations. (R. Item 10, Hearing Transcript (H.T.) at 3-4, 10, Reproduced
Record (R.R.) at 4-5, 11; R. Item 10, Commonwealth Ex. 1, Supp. R.R. at 1b-22b.)
Withers did not testify or introduce any evidence at the hearing and did not dispute
the accuracy of her driver’s license record or the facts concerning her convictions,
suspensions, and revocations. Rather, Withers only disputed the legal validity of
the two-year revocation under those facts. (R. Item 10, H.T. at 4-7, R.R. at 5-8.)
The trial court rejected Withers’ arguments and dismissed her appeal. This appeal
followed.2
The only argument asserted by Withers in this appeal is the contention
that her license was under suspension, not revocation, on September 5, 2008 when
she violated Section 1543 of the Vehicle Code, and that the applicable loss of her
license was therefore the one-year suspension that the Department originally
imposed under Section 1543(c)(1) for driving under a suspended license, not the
two-year revocation provided by Section 1543(c)(2).3 We do not agree. The
2
This Court’s review of a trial court order in an appeal from a license revocation is limited to
determining whether the trial court’s findings are supported by competent evidence and whether
the trial court committed an error of law or an abuse of discretion. Cesare v. Department of
Transportation, Bureau of Driver Licensing, 16 A.3d 545, 548 n.6 (Pa. Cmwlth. 2011).
3
Withers also contended at the trial court hearing that the Department’s delay in changing the
suspension to a revocation invalidated the revocation (R. Item 10, H.T. at 5-6, R.R. at 6-7), but
does not argue that issue in this Court. Moreover, as the trial court correctly concluded (R. Item
9, Trial Court Opinion at 1-2), such an argument would be without merit. To set aside a license
suspension or revocation based on delay, the licensee must show not only an unreasonable delay
by the Department, but that she was prejudiced by that delay. Cesare, 16 A.3d at 548-50 (42-
month delay in re-imposing license revocation not grounds to set aside revocation where licensee
(Footnote continued on next page…)
4
Department issued its five-year revocation of Withers’ operating privilege as a
habitual offender on January 22, 2008, well before Withers’ September 5, 2008
violation. The January 22, 2008 notice of revocation made final determinations
that Withers was a habitual offender under Section 1542 of the Vehicle Code
requiring revocation of her license, 75 Pa. C.S. § 1542, and that her license was
revoked, and specifically stated that it was an “Official Notification of the
Revocation of your Driving Privilege.” (R. Item 10, Commonwealth Ex. 1, Supp.
R.R. at 15b-16b) (emphasis in original). Withers did not dispute that she received
that notice of revocation in January 2008. The revocation was therefore in effect
as of January 2008 for purposes of determining the penalties for violation of
Section 1543 of the Vehicle Code, and Withers’ license was under revocation at
the time she committed her September 5, 2008 violation. Commonwealth v.
Jenner, 681 A.2d 1266, 1270-74 (Pa. 1996); Commonwealth v. Harden, 103 A.3d
107, 112 (Pa. Super. 2014); Commonwealth v. Nuno, 559 A.2d 949, 950-51 (Pa.
Super. 1989).
Withers argues that her license was not revoked until May 9, 2009,
after her violation, because the Department’s notice also stated that the effective
date of the revocation was May 9, 2009. This effective date, however, does not toll
the revocation. Jenner, 681 A.2d at 1270. Rather, where, as here the licensee is
under a pre-existing suspension or revocation because of other violations, the
(continued…)
did not show prejudice). While the more than six-year delay in issuing the revocation would
appear to be unreasonable, Withers did not show any prejudice from that delay. No change in
the status of Withers’ driving privilege occurred before the Department acted, as her license was
revoked until 2017 as a result of her 2012 conviction, and Withers introduced no evidence that
she took any action in reliance on the Department’s imposition of a one-year suspension rather
than a two-year revocation.
5
effective date set forth in the Department’s notice of an additional revocation or
suspension is simply a statement of how the consecutive time periods of loss of
driver’s license are applied under Section 1544 of the Vehicle Code to determine
when the licensee may obtain restoration of driving privileges. 75 Pa. C.S. §
1544(b)-(d) (requiring that the Department add subsequent suspension and
revocation periods to the end of an existing suspension or revocation); Jenner, 681
A.2d at 1270, 1274. In Jenner, our Supreme Court held that
suspensions or revocations are not tolled until preceding
earlier suspensions expire, since such an interpretation would
allow a suspended or revoked driver to avoid the enhanced
penalties at issue. To phrase this in another way, two or more
suspensions or revocations are not to be imposed
consecutively or seriatim to each suspension, but subsequent
suspensions or revocations simply extend the length of the
time the license is to be suspended or revoked.
681 A.2d at 1270.
The courts of this Commonwealth have consistently held that a driver
is subject to enhanced penalties required by Section 1543 from the date that she
receives notice of the revocation or suspension on which the penalty is based,
notwithstanding a later effective date setting the suspension or revocation to begin
at the end of existing revocations and suspensions. Jenner, 681 A.2d at 1270-74
(drivers who had received notice of DUI-related suspension before driving on
suspended license were subject to enhanced sentencing under Section 1543(b) for
driving under DUI-related suspension despite delayed effective dates of the DUI-
related suspensions that were after their violations due to prior non-DUI
suspensions); Harden, 103 A.3d at 112 (same); Nuno, 559 A.2d at 950-51 (driver
who had received notice of DUI-related suspension before Section 1543 violation
was properly found guilty of driving under DUI-related suspension under 75 Pa.
6
C.S. § 1543(b) even though suspension’s effective date was after violation due to
prior non-DUI revocation of defendant’s license). Exempting drivers of the
consequences of a revocation until a delayed effective date under Section 1544
would reward drivers who have committed repeated, serious Vehicle Code
violations by allowing them to use prior suspensions to avoid the penalties
imposed by the legislature for their conduct. Jenner, 681 A.2d at 1270, 1273;
Nuno, 559 A.2d at 950-51. As the Supreme Court explained in Jenner, basing the
penalty for violation of Section 1543 on the effective date, rather than date of the
suspension or revocation notice,
would create the absurd result of allowing drivers … to avoid
the enhanced consequences of continuing to drive until some
point in the future simply because they have flagrantly
disregarded the Motor Vehicle Code in the past. In construing
statutes, we assume that the legislature did not intend an
absurd result. 1 Pa. C.S. § 1922(1).
681 A.2d at 1273.
Jenner, Harden, and Nuno were criminal cases involving the
enhanced sentencing provisions of Section 1543(b) of the Vehicle Code for driving
while under a DUI-related suspension or revocation, rather than the enhanced
revocation penalty under Section 1543(c). That difference does not, however,
make the reasoning of those decisions any less applicable here. The fundamental
issue is the same, whether an enhanced penalty may be imposed where the
suspension or revocation on which it is based was issued before the driver’s
violation but had a delayed effective date under Section 1544 solely because of the
driver’s past violations and suspensions or revocations. The statutory language on
which these decisions are based is not materially different than the language of
Section 1543(c). Compare Jenner, 681 A.2d at 1268 n.3, 1270 (imposing
7
enhanced penalty where violation occurs “at a time when their operating privilege
is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative
Disposition for a violation of section 3731 (relating to driving under the influence
of alcohol or controlled substance) or because of a violation of section 1547(b)(1)
(relating to suspension for refusal) or 3731”) (emphasis supplied) and Nuno, 559
A.2d at 950 (same) with 75 Pa. C.S. § 1543(c) (“[i]f the department’s records show
that the person was under revocation on the date of violation, and had not been
restored”) (emphasis supplied).4
Withers attempts to distinguish this case law on the grounds that
licensees should be entitled to rely on the Department’s statement of the effective
date of a revocation and that her revocation was imposed under a different
statutory provision. Neither of these contentions has merit. There is no evidence
that Withers relied on or was in any way misled by the effective date in the
Department’s notice. Indeed, she did not testify or introduce any evidence at the
de novo hearing. There is therefore nothing in this record that distinguishes her
from the defendants in Jenner, Harden, and Nuno. Moreover, the Department’s
January 22, 2008 notice of revocation could not possibly mislead Withers to
believe that she could drive before the stated effective date without suffering
4
Subsequent to the defendants’ convictions in Jenner and Nuno, the legislature amended Section
1543 to add Section 1543(b)(2), specifically providing that the enhanced criminal penalty is
applicable where the DUI-related suspension or revocation has been imposed prior the violation,
regardless of whether the effective date is deferred under Section 1544. Jenner, 681 A.2d at
1272 n.11; see also 75 Pa. C.S. § 1543(b)(2). The Supreme Court held, however, that this
amendment did not change the law in effect prior to its enactment and based its analysis on the
language of Section 1543(b) prior to the amendment. Jenner, 681 A.2d at 1270-74 & n.11.
While Harden was decided after enactment of Section 1543(b)(2), the court rejected the
defendant’s argument that he was not subject to the enhanced penalty as frivolous based on the
language of Section 1543(b)(1), “at a time when the person’s operating privilege is suspended or
revoked,” and Jenner and Nuno, rather than Section 1543(b)(2). 103 A.3d at 111-12.
8
consequences more serious than this two-year revocation of her license. The
Department’s revocation notice made clear that “[t]his revocation is in addition to
any other suspension already on your record,” and Withers was still under a DUI
suspension at the time of her September 2008 violation. (R. Item 10,
Commonwealth Ex. 1, Supp. R.R. at 15a, 19a.) She was therefore subject to
imprisonment under Section 1543(b) of the Vehicle Code if she drove a motor
vehicle in September 2008, regardless of when the revocation was in effect. 75 Pa.
C.S. § 1543(b)(1).
Nor are Jenner, Harden, and Nuno distinguishable on the grounds that
the 2008 revocation of her license was under a different section of the Vehicle
Code. While the DUI-related suspensions in those cases were under Section
1540(a) of the Vehicle Code, governing mandatory license suspension upon
conviction of certain offenses, and Withers’ license was revoked under Section
1542, governing habitual offenders, that difference is immaterial. The delayed
effective date here was due to Section 1544, requiring consecutive application of
suspensions and revocations, the same statutory provision at issue in Jenner,
Harden, and Nuno. Moreover, to the extent that the Court relied on Section
1540(a) in Jenner in holding that the DUI-related suspensions were in effect,
Withers was equally required to surrender her license under Section 1540(a) at the
time of conviction on which the revocation was based and, like the defendants in
Jenner, had already surrendered her license before the revocation notice.
Because the Department gave notice to Withers of the revocation of
her license in January 2008, her license was under revocation under Section
1543(c)(2) at the time of her September 2008 violation. See Jenner, 681 A.2d at
1273-74; Harden, 103 A.3d at 112; Nuno, 559 A.2d at 950-51. Accordingly, we
9
affirm the order of the trial court upholding the Department’s imposition of a two-
year license revocation for that violation.
____________________________________
JAMES GARDNER COLINS, Senior Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Karyn Elizabeth Withers, :
:
Appellant :
:
v. : No. 2202 C.D. 2015
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
:
ORDER
AND NOW, this 4th day of August, 2016, the order of October 9,
2015 of the Court of Common Pleas of Centre County in the above-captioned case
is AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge