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 Driver Licensing :

BEFORE: 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 

Common Pleas of Berks County (trial court) denying his license suspension 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 Code (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 Vehicle 
2

Code,1and 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 operating 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 forth 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 person 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 individual 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 satisfies the first two 

conditions, the only question is whether Becker had “no prior offense” 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 offenses 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 Disposition 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 

added).

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, acceptance 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

This 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 2014-189 provides that New

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 was 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 operating 

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

Becker appealed his suspension to the trial court contending that New

Section 3806(b) should not be applied retroactively because 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 offense” as he was not convicted of his 

first offense when his second DUI occurred. He also argues that to apply New

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

The trial court denied Becker’s appeal. It held that the language of 

New Section 3806(b) unambiguously provides that it is 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). Because 

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 

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

suspension. The trial court further rejected Becker’s claim that his suspension 

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

Constitutions because suspension of his operating privilege is a civil consequence 

of a conviction, not a criminal penalty. This 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 abused 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 committed the 

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

became effective on December 26, 2014. We disagree.

In 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 attach 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 

undisputed, 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 three DUI 

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

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

retroactive applications because it did not look back and enhance the punishment 

offenders 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 persons 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 sentenced for the underlying offense until August 28, 

2015, after the effective 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 Driver 

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 745, 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 speaks only to retroactive 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. Department 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 Law, or Law impairing the Obligation of Contracts. . . .” 

U.S. Const. art. I, § 10. Similarly, article 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 affirm the order of the trial court.

________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Scott Becker, :

Appellant :

:

v. : No. 1310 C.D. 2017

:

Commonwealth of Pennsylvania, :

Department of Transportation, Bureau :

of Driver Licensing :

O R D E R

AND NOW, this 14th day of May, 2018, the order of the Court of 

Common Pleas of Berks County in the above-captioned matter is hereby affirmed.

________________________________

DAN PELLEGRINI, Senior Judge