IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christa Dolce :

:

v. : No. 201 C.D. 2016

: SUBMITTED: July 22, 2016 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: October 28, 2016

The Commonwealth of Pennsylvania, the Department of

Transportation, Bureau of Driver Licensing

, appeals from an order of the Court of

Common Pleas of Delaware County that , in pertinent part, sustained the statutory

appeal of Licensee

, Christa Dolce, 1 by rejecting the Department’s requirement that

she install an ignition interlock device on her vehicle upon completion of her

suspension and before restoration of her operating privilege. Because t he

Department is not appealing from that part of the trial court’s order modifying

Licensee’s operat ing privilege suspension from eighteen to twelve months , the

narrow issue before us is whether the court erred in holding that Licensee was not

1 In July 2016, this Court entered an order precluding Licensee from filing a brief in this matter for failure to comply with a prior order directing her to file a brief.2

required to comply with the ignition interlock requirement. For the reasons that

follow, we affirm the trial co urt ’s order sustaining Licensee’s statutory appeal to

the extent that it directed the Department to impose a twelve

- month suspension,

but reverse it to the extent that it failed to require Licensee to comply with the

ignition interlock requirement found in Section 3805(a) of the Vehicle Code

(Code) , 75 Pa. C.S. § 3805(a).

O n July 18, 2005, Licensee was convicted of a December 25, 2004,

violation of Section 3802(c) of the Code

, 75 Pa. C.S. § 3802(c), driving under the

influence of alcohol or controlled su bstance

- highest rate of alcohol, and,

consequently, the Department suspended her operating privilege for eighteen

months. December 1, 2015, Hearing, Exhibit C

- 1 at #s 4 and 5 ; Reproduced

Record (R.R.) at 38a and 41a

. 2 Approximately ten years later , o n August 25, 2015,

Licensee was convicted of a February 24, 2015, violation of Section 3802(d)(3) of

the Code

, 75 Pa. C.S. § 3802(d)(3), driving “under the combined influence of

alcohol and a drug or combination of drugs to a degree which impairs the

indiv idual’s ability to safely drive, operate or be in actual physical control of the

movement of the vehicle.” Id . at #2; R.R. at 35a. Thereafter

, the Department

imposed an operating privilege suspension of eighteen months and an ignition

interlock requireme nt. Id . at #1; R.R. at 32

- 34a. In October 2015, Licensee filed a

timely appeal with the trial court, which held a hearing de novo

.

At the hearing, the trial court admitted Commonwealth Exhibit C

- 1

into evidence, without objection. In addition, based on an amended DL

- 21,

depicting a change from conviction of a first degree misdemeanor to an ungraded

2 As the Department note d in its brief, its counsel mistakenly stated at the h earing that Licensee accepted ARD for her first DUI violation. Department’s Brief at 7 n.1.3

misdemeanor, both counsel agreed that the trial court should remand the matter to

the Department to modify the suspension from eighteen to twelve months. 3

D ecember 1, 2015, Hearing, Notes of Testimo ny (N.T.) at 3

- 4; R.R. 23

- 24a. The

Department, however, adhered to its argument that Licensee was still required to

comply with the ignition interlock requirement because her second DUI violation

occurred less than ten years after her first DUI conviction

.

Subsequently , the trial court entered an order sustaining Licensee’s

appeal and directing that her operating privilege be suspended for a period of

twelve months . It further ordered, however, that she did no t have to comply with

the ignition interlock provision upon completion of her license suspension.

Common Pleas’ January 14, 2016, Order ; R.R. at 47a. The Department appealed,

noting its agreement with the suspension reduction but reiterating its position that

Licensee should be subject to the ignition interlock requirement. I n its opinion

, filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the trial court

acknowledg ed that Licensee should be subject to the ignition interlock

requirement. We agree.

In general, t he Department “shall impose an ignition interlock

requirement in situations where a person commits a DUI violation and has a prior

offense within the last ten years.” Smith v. Dep’t of Transp., Bureau of Driver

Licensing , 41 A.3d 924, 928 (Pa. Cmwlth. 2012). For purposes of Section 3805(a)

of the Code, the ignition interlock provision, the term “prior offense” is defined in

Section 3806(a) of the Code , 75 Pa. C.S. § 3806(a)

. Whalen v. Dep ’t of Transp

. ,

3 In pertinent part, Section 3804(e)(2)(i) of the Code, 75 Pa. C.S. § 3804(e)(2)(i), provides

for a twelve

- month suspension for an ungraded misdemeanor.4

Bureau of Driver Licensing , 32 A.3d 677, 680 (Pa. 2011) . Accordingly, those two

statutory provisions control the present case.

In relevant part, Section 3805(a)(1) and (2) of the Code, the ignition

interlock provision

, provides:

(a) If a person violates section 3802 (relating to driving under influence of alcohol or controlled substance) and, within the past ten years, has a prior offense as defined in section 3806(a) (relating to prior offenses)

. . . and the person seeks a restoration of operating priv ileges, the department shall require as a condition of issuing a restricted license pursuant to this section that the following occur:

(1) Each motor vehicle owned by the person or registered to the person has been equipped with an ignition interlock syst em and remain so for the duration of the restricted license period.

(2) If there are no motor vehicles owned by the person or registered to the person that the person so certify to the department. A person so certifying shall be
deemed to have satisfied the requirement that all motor vehicles owned by the person or registered to the person be equipped with an ignition interlock system as required by this subsection.

75 Pa. C.S. § 3805(a)(1) and (2) (emphasis added)

. Section 3806(a)(1) of the

Code , which defines prior offenses, provides:

(a) General rule.

— Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall

mean a conviction , adjudication of delinquency, juvenile

consent decree, acceptance of Accelerated Rehabilita tive Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:

(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substance) [.]

75 Pa. C.S. § 3806(a)(1) (emphasis added).5 In the present case, the following dates support the determination that

the ignition interlock requirement is applicable to Licensee: (1) July 18, 2005 : 1st

c onviction of Section 3802; (2) February 24, 2015 : 2nd violation of Section 3802;

and (3) August 25, 2015 : 2nd conviction of Section 3802. Because Licensee’s

first DUI conviction, July 18, 2005, occurred before the sentencing on the present

violation, August 25, 2015, her first DUI conviction is a “prior of fense.” Further,

because she violated Section 3802 on February 24, 2015, which is within ten year s

of her first DUI conviction o f July 18, 20 0 5 , she is, therefore, required to comply

with the ignition interlock requirement. See Whalen , 32 A.3d at 680 (ho lding that,

“based strictly on the plain text of Section 3805, the ignition interlock requirement

is applicable when a person ‘violates’ Section 3802, and also, within the preceding

ten years, had a ‘prior offense,’ i.e. , a prior conviction or prior accept ance of ARD

for an offense under Section 3802 or similar provision.” )

Accordingly , we affirm the trial court’s order sustaining Licensee’s

statutory appeal to the extent that it directed the Department to impose a twelve

month suspension, but reverse it t o the extent that the court failed to require

Licensee to comply with the ignition interlock requirement

.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christa Dolce :

:

v. : No. 201 C.D. 2016

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

: Appellant :

O R D E R

AND NOW, this 28 th day of October, 201 6

, the order of the Court of

Common Pleas of Delaware County is hereby AFFIRMED to the extent that the

court sustained the statutory appeal of Licensee

, Christa Dolce

, and directed the

Department to impose a twelve

- month suspension of her operating privilege

, and

REVERSED to the extent that the court failed to require Licensee to comply with

the ignition interlock requirement

. The Department’s re quirement that Licensee

comply with the ignition interlock provision is reinstated.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge