Lauer v. Commonwealth

DOYLE,1 Judge. Before the Court is the appeal of Robert James Lauer (Licensee) from an order of the Court of Common Pleas of Bucks County which dismissed his appeal of the suspension of his driving privileges. The trial court made the following findings of fact. On September 6,1990, September 7, 1990, and September 12, 1990, Licensee sold cocaine to an undercover police officer. He was arrested and on July 9, 1991, Licensee pled guilty to all three counts of violating Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act).2 The Department of Transportation, Bureau of Driver Licensing (DOT), was informed of these convictions on April 4, 1994. Thereafter, on June 13, 1994, DOT issued a notice to Licensee informing him that he had achieved habitual offender status3 and that his license would be suspended. Licensee filed a timely appeal to the trial court. At a hearing before the trial court, DOT agreed to modify the suspension to reflect one 90-day suspension for the first count, a one year suspension for the second count, and a two-year suspension for the third count pursuant to Section 13(m) of the Drug Act.4 However, after entering an order reflecting this modified penalty, the trial court wrote an opinion requesting this Court to remand this matter in order to impose three 90-day “first offense” suspensions. This appeal followed. Licensee argues that because his drug convictions were the result of a single criminal scheme or episode, the three convictions constitute a single first offense, and his license should, therefore, only be suspended for one period of ninety days only. Section 13(m),5 provides, in relevant part, that: [A]ny person ... who possesses, sells, delivers, offers for sale, holds for sale or gives away any controlled substance, in addition to any other penalty provided in this or any act, upon conviction for a violation of this act, shall have his or her operating privileges suspended. The clerk of any court of this Commonwealth, "within ten days after final judgment of conviction for violations of this act requiring suspension under this section, shall send to the Department of Transportation a record of the conviction on a form provided by the Department of Transportation. When the Department of Transportation suspends the operating privilege of a person under this subsection, the duration of the suspension shall be as follows: (1) For a first offense, a period of 90 days from the date of suspension. (2) For a second offense, a period of one year from the date of suspension. [781] (3) For a third offense, and any offense thereafter, a period of two years from the date of suspension. Any multiple suspensions imposed shall be served consecutively- Licensee argues that his three violations of the Drug Act constitute but a single offense for the purpose of his license suspension. We recently faced this issue in Brosius v. Department of Transportation, Bureau of Driver Licensing, 664 A.2d 199 (Pa.Cmwlth. 1996), wherein we held that: [W]hen a second offense is committed before the conviction occurs on the first offense, or the final judgement of conviction for multiple offenses occurs at the same time, and, the licensee does not have other extant drug convictions, all convictions will be deemed to be “first offenses” mandating separate and consecutive terms of suspension. Since the General Assembly deemed the collateral civil penalty of the suspension of operating privileges of such importance as to make a suspension mandatory, see Plowman [v. Department of Transportation, Bureau of Driver Licensing, 535 Pa. 314, 635 A.2d 124 (1993) ], we can not imagine that the General Assembly intended that a licensee should escape the consequences of his multiple violations simply because he received his final judgment of conviction for the separate and distinct multiple offenses on the same day. Therefore, each and every violation will carry its own “first offense” mandatory suspension of ninety days. Id. 664 A.2d at 202 (footnote omitted). Thus, while the increased penalty provision, ie., the enhancement element, does not apply in this case, we believe that it is contrary to the intent of the statute to allow a Pennsylvania motorist convicted of multiple Drug Act violations to escape without any penalty for two of his three Drug Act convictions. Brosius. There is nothing in the statute which precludes multiple first offense license suspensions. Section 13(m) of the Drug Act simply requires the imposition of a license suspension “upon conviction” of violating any provision of the Act. The language is mandatory: when a licensee is convicted, a license suspension must occur. See Plowman v. Department of Transportation, Bureau of Driver Licensing, 535 Pa. 314, 635 A.2d 124 (1993). Thus, each conviction must result in a period of suspension. Since we have held that enhancement, that is, increasing penalties for subsequent offenses, is not appropriate without providing an opportunity for the offender to reform after a conviction,6 multiple convictions, such as in this case, must result in multiple “first offense” suspensions. Brosius. This result is in accord with Section 13(m)(l), which evidences the General Assembly’s intent to provide for multiple suspensions which arise out of single criminal proceeding, where multiple counts are charged. Further, there is no evidence to support any finding that Licensee’s three convictions arose from a single “criminal episode” and therefore only merit a single suspension. Such a finding is an unwarranted expansion of the analysis in Perruso.7 In that case, consideration of whether the licensee’s multiple violations arose from a single criminal act was only relevant for determining whether to apply the enhancement provisions of Section 13(m)(2) and (3), and not whether a penalty should be imposed in the first instance. Here, the Licensee committed three separate and distinct acts on three different days [782] which resulted in three separate violations of the Drug Act. The fact that the circumstances on each separate occasion were similar and within a single week, does not require the conclusion that the three convictions arose from the same criminal act, as we held in Perruso. See Department of Transportation, Bureau of Driver Licensing v. Korenich, 168 Pa.Cmwlth. 362, 650 A.2d 1141 (1994). Moreover, the focus of Section 13(m) of the Drug Act is on “offenses,” not “criminal acts” or the facts surrounding them. In sum, recidivist legislation not only provides the individual with an opportunity to reform or face more stringent penalties, thereby deterring future criminal behavior on the part of the individual, but also serves as general deterrence to the population at large: In fact, a first offense may merit nothing more than a small fine. As such, the prospect of losing one’s driver’s license may deter a potential drug user from committing that first drug offense. At least, that potential user may consider the loss of his/her license and its effect on employment and transportation prior to committing a drug offense. Plowman, 535 Pa. at 320, 635 A.2d at 127. As we explained in Brosius, allowing a licensee to escape additional suspensions entirely for multiple Drug Act convictions, simply because he has received a single judgment of conviction, would subvert this purpose of general deterrence in addition to contravening the language of Section 13(m). Accordingly, the order of the trial court is modified to reflect three consecutive 90-day suspensions of Licensee’s driver’s license. ORDER NOW, October 24, 1995, the order of the Court of Common Pleas of Bucks County in the above-captioned matter is hereby modified to reflect three consecutive 90-day suspensions of Robert James Lauer’s driver’s license. Footnotes [1] This case was assigned to the opinion writer on June 27, 1995. [2] Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(m). [3] See infra note 4. [4] DOT’s original notice suspended Licensee’s driving privileges for five years in accordance to Section 1542 of the Vehicle Code, 75 Pa.C.S. § 1542. Licensee also received a second notice that his license would be suspended for six months and for one year pursuant to Section 1542(c) of the Vehicle Code, 75 Pa.C.S. § 1542(c). DOT admitted that these sections of the Vehicle Code were inapplicable, and agreed to modify Licensee’s suspension accordingly. [5] We note that Section 13(m) was repealed by the Act of June 28, 1993, P.L. 137, and its provisions added to the Vehicle Code by an amendment to Section 1532(c). 75 Pa.C.S. § 1532(c). Section 1532(c) of the Vehicle Code, remains substantially the same as Section 13(m) of the Drug Act but now requires a six-month suspension for a first offense conviction instead of 90 days. [6] Department of Transportation, Bureau of Driver Licensing v. Perruso, 160 Pa.Cmwlth. 49, 634 A.2d 692 (1993), petition for allowance of appeal denied, 538 Pa. 650, 647 A.2d 904 (1994), and Heisterkamp v. Department of Transportation, Bureau of Driver Licensing, 165 Pa.Cmwlth. 128, 644 A.2d 262 (1994), petition for allowance of appeal denied, 539 Pa. 670, 652 A.2d 840 (1994). [7] In Perruso, the licensee was charged with two counts of violating the Drug Act which arose from a single incident during one day. He pled guiliy and was sentenced on both counts at the same time. We determined that Section 13(m) is recidivist in nature and that where multiple convictions of the Drug Act arise from a single act, and the person has no prior drug convictions, the enhancement provisions of Section 13(m) do not apply. Thus, the licensee in Perruso was only subject to one ninety-day suspension for a first offense even though there were multiple counts and multiple convictions.