Opinion
No. 1446 C.D. 2011
05-10-2012
Mark Hott, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Mark A. Hott (Licensee) appeals from the Order of the Court of Common Pleas of Blair County (trial court) that upheld the suspension of Licensee's operating privilege for 18 months by the Department of Transportation, Bureau of Driver Licensing (Department) for violation of Section 3802(c) of the Vehicle Code, 75 Pa. C.S. § 3802(c) (driving under the influence). Licensee argues that the Department failed to timely suspend his operating privilege following his conviction for driving under the influence and that he was prejudiced by this delay. For the following reasons, we affirm.
Hott was convicted of driving under the influence in violation of Section 3802(c) on October 20, 2006. The Department sent Hott an Official Notice of Suspension of his operating privilege pursuant to Section 3804(e)(2)(ii) of the Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(ii), on December 8, 2010. Hott appealed the suspension to the trial court, arguing that the Department unduly delayed suspending his operating privilege following his conviction for driving under the influence and that he was prejudiced by this delay. The trial court held a hearing on March 23, 2011. At the hearing, the Department offered a Conviction Report reflecting Licensee's conviction under Section 3802(c) on October 20, 2006, and that the Conviction Report was certified by the trial court on November 19, 2010. The Department also offered a certified copy of its records regarding Licensee's operating privilege, indicating that his license had previously been suspended for one year for driving under the influence. Before the trial court, Licensee argued that the Department's documentary evidence was not sufficient to meet its burden of showing that it timely suspended Licensee's operating privilege and that it should have provided testimony as to "their process once they receive" the Conviction Report, pursuant to Grover v. Department of Transportation, Bureau of Driver Licensing, 734 A.2d 941 (Pa. Cmwlth. 1999). The trial court held in favor of the Department and upheld the suspension of Licensee's operating privilege, holding that because the date that the Conviction Report was certified was clear on its face, no testimony was required to determine that the delay in the suspension of Licensee's operating privilege was chargeable to the judicial system and not to the Department. Licensee appealed to this Court.
This Court's "review is limited to determining whether the trial court committed an error of law or abused its discretion, and whether necessary findings of fact were supported by substantial evidence." Gigous v. Department of Transportation, Bureau of Driver Licensing, 4 A.3d 716, 718 n.1 (Pa. Cmwlth. 2010).
On November 4, 2011, Licensee filed a Petition to Correct/Modify the Record Pursuant to Pa. R.A.P. 1926 (Petition), arguing that the Department's exhibits should be stricken from the certified record because, although the Department offered the exhibits at the hearing, they were not formally admitted into evidence. By order dated December 15, 2011, this Court denied the Petition. We now address Licensee's argument that the Conviction Report, without supporting testimony, was insufficient to show that the Department timely suspended Licensee's operating privilege following his driving under the influence conviction.
Section 3804(e) of the Vehicle Code provides that if a licensee commits a violation of Section 3802 (relating to driving under the influence) and that violation constitutes a misdemeanor of the first degree, then the Department shall suspend the licensee's operating privilege for 18 months upon receiving a certified record of the conviction. 75 Pa. C.S. § 3804(e). In this case, Licensee does not dispute that he was convicted on October 20, 2006, of a misdemeanor of the first degree for violation of Section 3802(c). However, the Department did not mail the notice of suspension of Licensee's operating privilege until December 8, 2010.
Section 3802 provides in relevant part, with respect to alcohol:
(a) General impairment.
(1) An 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.
(2) An 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 alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% 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(a)-(c). In this case, Licensee was convicted of violating Section 3802(c). The grading of offenses of Section 3802(c) is provided in Section 3803 of the Vehicle Code, which, relevant to this case, provides that: "[a]n individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has one or more prior offenses commits a misdemeanor of the first degree." 75 Pa. C.S. § 3803(b)(4).
(b) High rate of alcohol. --An 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 alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
(c) Highest rate of alcohol. --An 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 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.
Section 3804(e) provides in relevant part:
(1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual's conviction of or an adjudication of delinquency for:
(i) an offense under section 3802; . . .
. . . .
(2) Suspension under paragraph (1) shall be in accordance with the following:
75 Pa. C.S. § 3804(e). --------. . . .
(ii) 18 months for a misdemeanor of the first degree under this chapter.
To sustain an appeal of a license suspension based on delay, a licensee must prove that: (1) an unreasonable delay chargeable to the Department led the licensee to believe that his operating privilege would not be impaired; and (2) prejudice would result by having the licensee's operating privilege suspended after such delay. Once a licensee raises the delay defense, the Department must then prove that the delay was caused by some factor other than mere administrative inaction. If the Department meets this burden, the licensee's appeal should be dismissed. If the Department fails to meet this burden, then the burden shifts to the licensee to prove prejudice.Cesare v. Department of Transportation, Bureau of Driver Licensing, 16 A.3d 545, 548-49 (Pa. Cmwlth. 2011) (citations omitted) (citing Terraciano v. Department of Transportation, Bureau of Driver Licensing, 562 Pa. 60, 66, 753 A.2d 233, 236 (2000); Grover, 734 A.2d at 943). In this case, Licensee argues that he was prejudiced by the delay in the suspension of his operating privilege and, thus, the burden shifted to the Department to show that it was not responsible for the delay, pursuant to Cesare. The Department attempted to meet this burden by introducing the Conviction Report, which shows that it was not certified from the trial court until November 19, 2010. Licensee argues that this is insufficient to meet the Department's burden and that the Department needed to adduce testimony to show on what date that the Department received the Conviction Report. In support, Licensee relies upon Grover.
In Grover, the Court of Common Pleas of Philadelphia County certified the licensee's DUI conviction to the Department on July 18, 1996, but the Department did not mail the notice of suspension of the licensee's operating privilege until February 9, 1998. Grover, 734 A.2d at 942. The Department sought to sustain its burden of showing that the delay was not attributable to it by referring to the Work Identification Device (WID) number on the certification from the Philadelphia County Court of Common Pleas. Id. The meaning of the WID number was not clear on its face, but required explanation, which the attorney for the Department in Grover provided to the trial court in that case. Id. at 944 n.5. This Court held that "an attorney's statements or questions at trial are not evidence" and that the Department "failed to present testimony explaining the use and significance of WID numbers." Id. at 944. Therefore, this Court held that the Department failed to carry its burden of showing that the delay between the certification of the conviction and the Department's suspension of the licensee's operating privilege was not attributable to the Department. Id.
This case, however, does not involve a workflow number that requires identification. Rather, the date of the certification of the Conviction Report is clear on its face. Even in Grover, the trial court and this Court presumed that the conviction report in that case was sent on or about the date it was certified. In this case, the date the Conviction Report was certified is clear on its face, and it is axiomatic that a certified conviction report could not have been sent to the Department before it was certified. The Conviction Report states it was certified on November 19, 2010. The Department notified Licensee of the suspension of his operating privilege less than a month later, on December 8, 2010. Per this Court's extensive case law, delay on the part of the judicial system in certifying a conviction to the Department is not chargeable to the Department. Department of Transportation, Bureau of Traffic Safety v. Parr, 424 A.2d 604, 605 (Pa. Cmwlth. 1981).
Insofar as Licensee's brief might be read to argue that testimony from the Department was necessary to authenticate its exhibits, we note that the Department is correct that the Department "may prove its case by submission of certified records necessary to justify the suspension." Schaeffer v. Department of Transportation, 548 A.2d 714, 715 (Pa. Cmwlth. 1988). Therefore, both the Department's records recording Licensee's driving history and the certified Conviction Report were admissible without authentication by a witness.
For these reasons, we affirm the trial court.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 10, 2012, the Order of the Court of Common Pleas of Blair County in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge