         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
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 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).



                                                2
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:



                                          3
              (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.



                                               4
“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…)
                                                5
                                             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.



                                              6
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.



                                                7
                                                  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).


                                                  8
Accordingly, we affirm the order of the trial court.



                          ________________________________
                          DAN PELLEGRINI, Senior Judge




                             9
         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                  :




                                  ORDER


            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
