IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Scott Becker, : Appellant :

:

v. : No. 1310 C.D. 2017

: Submitted: April 20, 2018 Commonwealth of Pennsylvania, : Department of Transportation, Bureau : of Drive r Licensing :

BEFO RE: HONORABLE PATRICIA A

. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY SENIOR JUDGE PELLEGRINI FILED: May 14, 2018

Frank Scott Becker (Becker) appeals an order of the Court of

Commo n Pleas of Berks County (trial court) denying his license su spension appeal

from the Department of Transportation, Bureau of Driver Licensing’s

( Department ) one

- year suspension of his operating privilege pursuant to Section

3804(e)(2)(i) of the Vehicle Cod e (Vehicle Code), 75 Pa

. C.S. § 3804(e)(2)(i)

(relating to suspension based upon a conviction for driving under the influence of

alcohol (DUI)) . We affirm.

I.

The facts in this case are not in dispute. On December 28, 2010,

Becker was charged with DUI in violation of Section 3802(a)(1) of the Vehicle2

Code, 1 and he was convicted of this offense on October 15, 2012 (prior offense).

The Department , in accordance with Section 3804(e)(2)(i) of the Vehicle Code,

imposed a one

- year suspension of Becker’s oper ating privilege , effective

December 11, 2012. Becker did not appeal his suspension for the prior offense

, and his operating privilege was restored on December 17, 2013.

On November 6, 2011, Becker was again charged with DUI in

violation of Section 3802( a)(1) of the Vehicle Code (underlying offense) . For

reasons not contained within the record, he was not convicted of this underlying

offense until August 28, 2015.

The issue in this case is whether Becker falls within the exception to

suspension set for th in Section 3804(e)(2)(iii) of the Vehicle Code that provides

, “[t] here shall be no suspension for an ungraded misdemeanor under section

3802(a) where the person is subject to the penalties provided in subsection (a) [75

Pa. C.S. § 3804(a)] and the perso n has no prior offense.” 75 Pa. C.S.

§3804(e)(2)(iii). To fall within this exception to suspension

, three conditions must

be satisfied. First, the licensee must be convicted of violating 75 Pa. C.S. §

3802(a)(1) as an ungraded misdemeanor. Second, the licensee must be subject to

the penalties contained in 75 Pa. C.S. § 3804(a). Third, the licensee must not have

a “prior offense” as defined in Section 3806 of the Vehicle Code, 75 Pa. C.S. §

1 Section 3802(a)(1) states that “[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 alcohol such
that the indivi dual is rendered incapable of safely driving, operating or being in actual physical
control of the movement of the vehicle.” 75 Pa. C.S. § 3802(a)(1).3

3806. Because the Department does not dispute that Becker sati sfies the first two

conditions, the only question is whether Becker had “ no prior offe nse” when he

was convicted on August 28, 2015

, of DUI

. Whether a person has a “prior

offense” for suspension purposes is determined under Section 3806(b) of the

Vehicle Code. The question here is what version of that provision applies to this

appeal.

When Becker was criminally charged with both the prior and

underlying DUI offenses, Section 3806(b) of the Vehicle Code pertaining to prior

offenses stated:

(b) Repeat of

fenses within ten years.

- - The calculation of prior offenses for purposes of sections . . . 3804 (relating to penalties) shall include any conviction

, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposit ion or other form of preliminary disposition within the ten years before the present violation occurred for any of the following:

(1) an offense under section 3802

. . . [

. ]

Former Section 3806(b) of the Vehicle Code, 75 Pa. C.S. § 3806(b) (emphasis

add ed).

However, prior to his conviction on the underlying offense, the

General Assembly enacted the Act of October 27, 2014, P.L. 2905, No. 189 (Act

2014

- 189), which amended Section 3806(b) to read as follows:4 (b) Repeat offenses within ten years.

- - The calculation of prior offenses for purposes of sections . . . 3804 (relating to penalties) shall include any conviction

, whether or not judgment of sentence has been imposed for the violation, adjudication of delinquency, juvenile consent decree, acceptanc e of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before sentencing on the present violation for any of the following:

(1) an offense under section 3802

. . . [

. ]

75 Pa. C.S. § 3806(b) (emphasis added) ( New Section 3806(b) of the Vehicle

Code

. )

. 2

T his amendment changed the “look back” date used to establish

whether a separate incident can be considered a “prior offense” when assessing

penalties under Section 3804 of the Vehicle Code. While the former statutory

version included any conviction within ten years before the present violation, the

amended provision includes any conviction within ten years before sentencing

on the present violation

. Moreover, Section 2 of Act 20 14

- 189 provides that N ew
Section 3806(b) “shall apply to persons sentenced on or after [December 26,

2014,] the effective date of this section.”

Given this intervening change in the law

, by notice dated October 8,

2015, the Department informed Becker that his November 6, 2011 DUI was a

2 We note that, subsequent to Becker’s license suspension appeal, Section 3806(b) of the

Vehicle Code w as amended yet again. As the current version of that provision is not applicable
to this case

, it will not be discussed herein.5

“prior offense” under the New Section 3806(b)

, requiring that his ope rating

privilege be suspended for one year pursuant to Section 3804(e)(2)(i).

Becker appealed his suspension to the trial court contending th at New

Section 3806(b) should not be applied retroactively b ecause Former Section

3806(b) was in effect when he committed both of his DUI violations

. He contends

that since Former Section 3806(b) applies , he falls within the exception to the

suspension because he did not have a “ prior of fense” as he was not convicted of his

first offense when his second DUI occurr ed

. He also argues that to apply New

Section 3806(b) would impose unconstitutional ex post facto punishment.

T he trial court denied Becker’s appeal . It held that the language of

New Section 3806(b) unambiguous ly provides that it i s to be applied to all future

offenses in determining whether a person had a “ prior offense ” for the purpose of

the exception to suspension set forth in 75 Pa. C.S. §3804(e)(2)(iii)

. B ecause

Becker’s conviction occurred on August 28, 2015, well after the effective date for

New Section 3806(b), and Becker’s prior offense occurred within ten years of his

sente ncing on the underlying offense, he did not fall within the exception to

suspension. T he trial court further rejected Becker’s claim that his suspension

violates the ex post facto clauses of the Pennsylvania and United States

Constitutions because su spension of his operating privilege is a civil consequence

of a conviction, not a criminal penalty. Th is appeal followed. 3

3 Our review in a license suspension appeal is limited to determining whether the trial
court erred as a matter of law or abus ed its discretion, and whether factual findings are supported by competent evidence. Rothstein v. Department of Transportation, Bureau of Driver Licensing

, (Footnote continued on next page...)6 II.

A.

Becker first argues that the trial court erred in retroactively applying

New Section 3806(b) rather than the Former version that was in effect at the time

he committed both the prior and underlying offenses because he commit ted the

underlying offense on November 6, 2011, long before New Section 3806(b)

became effective on December 26, 2014. We disagree.

I n rejecting a similar retroactivity argument of a DUI offender with

respect to the ignition interlock law in Alexander v . Commonwealth , our Supreme

Court explained:

“ a statute does not operate retrospectively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.” Gehris v. Commonwealth

, Department of Transportation

, [] 369 A.2d 1271, 1273 ([Pa.] 1977)

. Thus, under this Court’s precedent, “Retroactive laws have been defined as those which take away or impair vested rights acquired under existing laws, create new obligations, impose a new duty, or attac h a new disability in respect to the transaction or consideration already past.” Nicholson v. Combs , [] 703 A.2d 407, 411 ([Pa.] 1997) (citing Black’s Law Dictionary, 1184 (6th ed. 1990)).

(continued...)

922 A.2d 17, 19 n.6 (Pa. Cmwlth. 2006). Where, as is the case here, the material facts are undispu ted, the appeal presents a pure question of law and our scope of review is plenary. Id.7

880 A.2d 552, 559 (Pa. 2005). In that case, the licensee had th ree DUI

convictions, only one of which arose after enactment of the ignition interlock law.

T he Supreme Court held that the statute did not violate any restriction on

retroactive application s because it did not look back and enhance the punishment

offende rs received for their prior DUI convictions; rather, it only applied to those

DUI convictions occurring after the effective date of the law.

Similarly, here

, the language of Act 2014

- 189 unambiguously states

that New Section 3806(b) shall apply to person s sentenced on or after December

26, 2014, the effective date of the Act. The triggering date for the suspension is

the date Becker was sentenced, not the date he committed the underlying offense.

Because Becker was not sentenc ed for the underlying offen se until August 28,

2015, after the effe ctive date of the Act , he falls squarely within the language of

New Section 3806(b) and the Department did not improperly apply the statute

retroactively

. See also Kocis v. Department of Transportation, Bureau of Dr iver

Licensing (Pa. Cmwlth., No. 31 C.D. 2016, filed August 3, 2016 ) 4 (citing

Schrankel v. Department of Transportation, Bureau of Driver Licensing , 755 A.2d

690, 692 (Pa. 2000); Martz v. Department of Transportation, Bureau of Driver

Licensing , 924 A.2d 7 45, 749 (Pa. Cmwlth. 2007) )

.

4 Pursuant to § 414 of this Court’s Internal Operating Procedures, this unreported opinion is not binding precedent but cited only for its persuasive value. Kocis is particularly persuasive as the facts of that case are nearly identical to those before us in the present appeal.8 B.

Next, Becker argues that applying New Section 3806(b) to his

conviction on the underlying offense violates the ex post facto provisions of both

the United States and Pennsylvania Constitutions. 5 In essence, he argues that

suspending his operating privilege for one year for the underlying offense is not

truly a civil penalty because it enhances the punishment he received for this

conviction.

“The Ex Post Facto clause speak s on ly to r etroactive punishment.

Thus, the issue becomes whether the civil disability imposed on [licensee] . . .

constitutes punishment.” Lehman v. Pennsylvania State Police , 839 A.2d 265, 270

(Pa. 2003). Our courts have repeatedly held that license suspension appeals are

civil in nature

, and that a DUI offender’s loss of his or her operating privilege is

not a criminal penalty and does not constitute punishment

. See, e.g.

, Boseman v.

Department of Transportation, Bureau of Driver Licensing , 157 A.3d 10, 20

- 21

(Pa. Cmwlth. 2017); Frederick v. Departm ent of Transportation, Bureau of Driver

Licensing , 802 A.2d 701, 704 (Pa. Cmwlth. 2002). Because it is well settled that

suspension of a DUI offender’s operating privilege is not a criminal penalty,

Becker’s ex post facto claims fail.

5 Article I of the United States Constitution provides, in pertinent part, “No state shall . . . pass any Bill of Attainder, ex post facto La w, or Law impairing the Obligation of Contracts. . . .” U.S. Const. art. I, § 10. Similarly, a rticle 1, section 17 of the Pennsylvania Constitution provides, “No ex post facto law, nor any law impairing the obligation of contracts, or making
irrevocable any grant of special privileges or immunities, shall be passed.” Pa. Const. art. 1, § 17. These clauses have been interpreted as being effectively identical. See Commonwealth v. Young , 637 A.2d 1313 (Pa. 1993).9 Accordingly, we af

firm the order of the trial court.

___ _____________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Scott Becker, : Appellant :

:

v. : No. 1310 C.D. 2017

: Commonwealth of Pen nsylvania, : Department of Transportation, Bureau : of Drive r Licensing :

O R D E R

AND NOW, this 14 th day of May , 201 8

, the order of the Court of

Common Pleas of Berks County in the above

- captioned matter is hereby affirmed.

____________ ____________________ DAN PELLEGRINI, Senior Judge