IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scarlett Elizabeth Bretz, :

Petitioner :

:

v. : No. 2418 C .D. 20 1 5

: Submitted: April 1 , 20 1 6 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Respond ent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: April 26, 2016

Scarlett Eliza beth Bretz, a/k/a Scarlett Elizabeth Chizzonite

( Licensee )

, petitions for review of an order of the Secretary (Secretary) of the

Department of Transportation (Department) confirming that her 18

- month

suspension for driving under the influence of alcohol (D UI) and a fiv e

- year

revoc ation of her driver’s license as a habitual offender were to be served

consecutively

. We affirm.

I.

The facts are not in dispute. On three separate occasions, Licensee

was convicted under Section 3802(c) of the Vehicle Code , 75 Pa. C.S. §3802(c), of2

d riving u nder the i nfluence of alcohol (DUI) with a blood alcohol level of 0.16

percent or higher, a misdemeanor of the first degree. 1 Th e first “conviction”

occurred o n October 4, 2007

, and was disposed of when L icensee was accepte d

into an Accelerated Rehabilitative Disposition (ARD) program. Because

Licensee’s blood alcohol concentration was higher than 0.16 percent, h er driver’s

license was suspended for 60 day s

. 2

On April 18, 2012, Licensee was convicted for a second time of

driving under the influence of alcohol in violation of Section 3802(c) , 75 Pa. C.S.

§3802(c)

. Licensee was sentenced to house arrest from May through July 2012.

Upon being notified by the Clerk of Courts of the Court of Common Pleas of

Beaver County (Cle rk of Courts) of the conviction, the Bureau of Driver Licensing

(Bureau) imposed an 18

- month suspension of Licensee’s driver’s license effective

June 14, 2012. 3 The Bureau mailed official notice of the 18

- month suspension to

Licensee on May 10, 2012

. Lic ensee did not appeal this suspension.

1 Section 3802(c) p rovides, in pertinent part

, “ [a]n individual may not drive, operate or be
in actual physical control of the movement of a vehicle after imbibing a sufficient amount of

alc ohol such that the alcohol concentration in the individual ’ s blood or breath is 0.16% or higher
within two hours after the individual has driven, operated or been in actual physical control of

the movement of the vehicle. ” 75 Pa. C.S. §3802(c).

2 Section 3807(d)(3) of the Vehicle Code, 75 Pa. C.S . § 3807(d)(3)

, requires that as a

condition of part icipation in ARD where the defendant ’ s blood alcohol was 0.16% or higher

, that
the court suspend the defendant ’ s license for 60 days.

3 Section 3804(e)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 3 804(e)(2)(ii), provides that the
Department shall suspend the operating privilege of an individual for 18 months if convicted for
a misdemeanor of the first degree. Id.3 On May 14, 2012

, Licensee was convicted of her third DUI offense

within five year s making her a “habitual offender” requiring that her license be

revoked for a period of five years. 4 O n June 8, 2012, t he Bureau mail ed Licensee

official notice that her license was revoked effective December 14, 2013 , for a

period of five years

. In this notice, t he Bureau informed Licensee on a separate

line hanging directly above a section titled “COMPLYING WITH THIS

REVOCATION” that “This revocation is in addition to any other suspensions

already on your record.” (Reproduced Record (R.R.) at 27a

. ) Licensee did not

appeal the five

- year revocation of her license

.

II.

On June 14, 2012, Licensee surrendered her driver’s license to th e

Bureau so that she could begin receiving credit toward her suspension and

revocation

. 5 The Department acknowledged receipt of Licensee ’s license by letter

dated June 27, 2012

. However, the letter informed Licensee that she would not be

credit ed until t he Court of Common Pleas of Beaver County notified the

Department that she completed her prison term.

On August 13, 2012, the Clerk of Courts certified that Licensee was

release d from prison as of July 5, 2012. B ecause Licensee was never sentence d to

pr ison, Licensee ’s beginning credit date was improperly set to July 5, 2012

, rather

than June 14, 2012 , the date she surrendered her license

. Subsequently, Licensee

4 See 75 Pa. C.S. §1542

.

5 See 75 Pa. C.S. §1541(a) & (a.1).4

filed a request for an administrative hearing seeking to change the credit date from

July 5, 2012

, to June 14, 2012

, as well as contending that she was entitled to serve

concurrently the 18

- month suspension and the five

- year revocation of her driver’s

license

.

After a hearing

, because License e failed to establish that she had

never been sentenc ed to prison, the Hearing Officer denied the request to change

the effective date of the suspension from July 5, 2012

, to June 14, 2012

. The

Hearing Officer also denied her request to concurrently serve the respective

periods of suspension and revocation reasoning that the language of Section

1544(c)

, 75 Pa. C.S. §1544(c), requires that the revocation and suspension be

served consecutively.

Licensee filed exceptions with the Secretary attaching an amended

Form DL

- 21

, dated August 12, 2015

, from the Clerk of Courts stating that

Licensee was not sentenced to prison as a consequence o f her DUI conviction. As

a result of the amended Form DL

- 21 , the Secretary changed the effective date of

her suspension to June 14, 2012, but denied Licensee ’s exception that s he is

allowed to concurrently serve the suspension and revocation terms as being

“without merit

. ” Licensee then filed this petition for review

. 6

6 “In a case involving administrative credit toward a driver’s license suspension, this

Court ’ s scope of review is limited to determining whether constitutional rights have been

violated, whether an error of law has been committed or whether the necessary findings of fact are supported by substantial evidence.” Martin v. Department of Transportation , 6 A.3d 589,
593 n.6 (Pa. Cmwlth. 2010) (citing Sherry v. Department of Transportation, 893 A.2d 208, 209

n.4 (Pa. Cmwlth . 2006)). Where, as here, the issue is a question of law, the standard of review is (Footnote continued on next page...)5 III

.

In her petition for review, Licensee contends that the Department

erred in not allowing her to concurren tly serve the 18

- month suspension with th e

five

- year revocation of her driver’s license

. As best as we can determine,

Licensee ’s position is that Section 1544(c) , 75 Pa. C.S. §1544(c), does not preclude

the serving of a suspension and revocation concurren tly when , as here, the

sur render of a driver’s license effectuates both the suspension and revocation.

Section 1544(c) provides:

When any person’s record shows an additional conviction calling for revocation of the operating privilege during a period of suspension, the department

shall add the appropriate revocation onto the period of suspension and the person shall be so notified in writing.

75 Pa. C.S. §1544(c) (emphasis added). Like the Secretary found, this argument

has no merit because “ [Section 1544(c)] is clear that time certain periods of

suspension and revocation must be served consecutively. ” Dep ar t ment of

Transp ortation , Bureau of Driver Licensing v. Vento , 548 A.2d 385, 386 (Pa.

Cmwlth. 1988 ). A contrary interpretation “w ould allow a susp ended or revoked

driver to avoid the enhanced penalties at issue. ” Commonwealth v. Jenner , 681

A.2d 1266, 1270 (Pa. 1996). Further

, this provision does not provide for an

(continued...)

de novo and the scope of review is plenary. Wh alen v. Dep artmen t of Transportation , Bureau of

Driver Licensing , 32 A.3d 677, 679 (Pa. 2011).6

exception to have DUI suspensions and revocations served concurrently even when

the underlying offenses occurred in close proximity to one another

, let alone, as

here, where one of the offenses occurred years before. See Dep artment of

Transp ortation , Bureau of Driver Licensing v. Martin , 517 A.2d 216, 217 (Pa.

Cmwlth. 1986). 7

Accordin gly, because th e Secretary did not err in denying Licensee ’s

exception to the Hearing Officer’s finding that she must serve her 18

- month

suspension and five

- year revocation of her driver’s license consecutively, the

Department’s final order is affirmed.

___________________________________ DAN PELLEGRINI, Senior Judge

7 Licensee further asserts that the Department’s conduc t led her “to believe that the
suspensions would begin at the same time.” (Brief for the Petitioner, at 11.) Yet, the June 2012 notice letter explicitly stated, “This revocation is in addition to any other suspensions already on

your recor d.” (R.R. at 2 7a.) T his sentence was provided as its own paragraph on the first page,
and the sentence hung directly above a section titled “COMPLYING WITH THIS

REVOCATION.” Id. (emphasis added).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scarlett Elizabeth Bretz, :

Petitioner :

:

v. : No. 2418 C.D. 2015

: Commonwealth of Pennsylvania, : Department of Transpor tation, : Bureau of Driver Licensing, :

Respondent :

O R D E R

AND NOW, this 26 th day of April , 2016, it is hereby ordered that the

final order of the Secretary of the Department of Transportation dated November 3,

2015, is affirmed.

____ _______________________________ DAN PELLEGRINI, Senior Judge