Zimmerman v. Commonwealth Department of Transportation, Bureau of Driver Licensing

FRIEDMAN, Judge,

concurring.

I concur in the result reached by the majority. However, I write separately to set forth a more concise approach to the issue presented based on the view expressed by Chief Justice Nix in Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989) (Nix, J., concurring). In Williams, Chief Justice Nix stated that, where the legislature has determined the penalty to be imposed for the conviction of an offense, it is to be assumed that the penalty encompasses any lesser-included offenses.¹ Id. In this case, the legislature has determined that the penalty for conviction of a felony essentially involving a vehicle is a one-year driver’s license suspension. Section 1532(a)(1) of the Vehicle Code, 75 Pa.C.S. § 1532(a)(1). Thus, it is to be assumed that the one-year suspension covers lesser-included offenses arising from the same incident.

The licensee here was convicted of both Driving Under the Influence (DUI) and Aggravated Assault by Vehicle While Driving Under the Influence (AA-DUI) in connection with a December 17, 1997 motor vehicle accident. As the majority indicates, “DUI is incontrovertibly a lesser-included offense of AA-DUI.” (Majority op. at 957.) Therefore, the Department of Transportation, Bureau of Driver Licensing (DOT) was authorized to impose only a single one-year suspension upon the licensee pursuant to section 1532(a)(1) of the Vehicle Code, 75 Pa.C.S. § 1532(a)(1).²

Accordingly, for different reasons, I would affirm.

1 . An offense is a lesser-included offense of another if the elements of the offense are capable of being wholly contained within the elements of the other offense. 28 Standard Pennsylvania Practice 2d § 137:78 (1999). Obviously, when the legislature establishes a penalty for a particular offense, that penalty covers all of the elements of that offense. Because lesser-included offenses are wholly contained within the elements of the greater offense, the penalty covers the lesser-included offense.

2 . Ordinarily, where a person is convicted of an offense and a lesser-included offense, the person receives the penalty attached to the greater offense, i.e., the offense to which the legislature has attached the greatest penalty. 28 Standard Pennsylvania Practice 2d § 137:78 (1999). However, on those rare occasions where the lesser-included offense carries the greater penalty, the sentencing authority has discretion to impose the penalty attached to the lesser-included offense. Commonwealth v. Everett, 550 Pa. 312, 705 A.2d 837 (1998).