Benjamin v. Commonwealth, Department of Transportation

FRIEDMAN, Judge,

concurring.

I concur in the result reached by the majority; however, I write separately because I disagree with the majority’s explanation of the five-year sliding scale in section 1542 of the Vehicle Code, 75 Pa.C.S. § 1542. According to the example offered by the majority, if a licensee commits three violations in 1995 and then a fourth in 1999, the Department of Transportation (DOT) would impose two penalties totalling seven years. (Majority op. at 479.) The Majority then states:

The only way in which a licensee who has been declared a habitual offender can have his or her license revoked for another five years as a habitual offender, is for the licensee to have a clean driving record for five years and then commit three new violations within a new five-year period under Section 1542(a).

(Majority op. at 480.) (Emphasis added.) I believe that the majority’s illustration is both imprecise and misleading.

First, the scenario does not properly recognize that, under section 1542(a) of the Vehicle Code, 75 Pa.C.S. § 1542(a) (emphasis added), a habitual offender must have three “convictions for the separate and distinct offenses described and enumerated in subsection (b)_” Thus, in the majority’s example, if the licensee’s 1995 violations did not result in convictions, did not arise from separate acts or were not among the offenses listed in section 1542(b), licensee would not be a habitual offender as of 1995, and DOT could not impose a five-year license revocation for those three violations.¹

Indeed, the majority’s example, as written, suggests that DOT would impose no penalty for the three 1995 violations, but if and when the licensee committed a fourth violation in 1999, DOT then would impose two penalties, a five-year revocation for the three 1995 violations and a two-year revocation for the 1999 violation. However, even if otherwise permissible as discussed above, DOT could not impose a penalty for the 1995 violations in 1999, after a delay of four years. See Department of Transportation, Bureau of Driver Licensing v. Turner, 155 Pa.Cmwlth. 106, 624 A.2d 749 (1993).

Using the majority’s illustration, I would conclude that, if a licensee is convicted in 1995 for three separate and distinct offenses, among those found in section 15J¡2(b) of the Vehicle Code, the licensee’s driving privilege would be revoked for five years at that time pursuant to sections 1542(a) and (d). Then, upon conviction of a fourth section 1542(b) offense in 1999, the licensee’s driving privilege would be revoked for an additional two years under section 1542(e).

Further, I agree with the Majority that a licensee can only incur another five-year license revocation under section 1542 if the licensee is convicted of three new separate and distinct section 1542(b) offenses following the end of his prior revocation period. However, because it is obvious that a person is not permitted to drive during a revocation of operating privileges, I believe that the majority’s reference to a “clean driving record” during the period of revocation is misleading. (Majority op. at 480.) Indeed, I would not want to suggest that persons may drive without a license during the period of revocation as long as they do not get caught. See Section 1543 of the Vehicle Code, 75 Pa.C.S. § 1543. Nevertheless, I concur in the result.

PELLEGRINI, J., joins in this concurring opinion.

1 . Likewise, if the fourth violation in 1999 was not an enumerated offense or did not result in a conviction, DOT could not impose a penalty under section 1542 of the Vehicle Code.