           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David A. Kocis,                                 :
                                                : No. 31 C.D. 2016
                              Appellant         : Submitted: May 27, 2016
                                                :
                      v.                        :
                                                :
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: August 3, 2016


               David A. Kocis (Licensee) appeals from the order of the Court of
Common Pleas of Carbon County (trial court), which denied his appeal from the
one-year suspension of his operating privilege imposed by the Department of
Transportation (Department) in accordance with Section 3804(e)(2)(i) of the
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.
               On March 15, 2014, Licensee was charged in Carbon County with
violating Section 3802(a)(1) of the Vehicle Code.1 On June 1, 2014, Licensee was


       1
          Section 3802(a)(1) states that 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.” 75 Pa.C.S. §3802(a)(1).
again charged with violating Section 3802(a)(1) in Columbia County.           When
Licensee was charged with these offenses, Section 3806(b) of the Vehicle Code
stated as follows:

                (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), 75 Pa.C.S. §3806(b) (emphasis added).
                However, before Licensee was sentenced for either of those offenses,
the General Assembly enacted the Act of October 27, 2014, P.L. 2905, No. 189
(Act 2014-189), which amended Section 3806(b) of the Vehicle Code.               As
amended, Section 3806(b) now states:

                (b) Repeat offense 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 the sentencing on the
                present violation for any of the following: (1) An
                offense under section 3802 . . . .
75 Pa.C.S. §3806(b) (emphasis added). Thus, the amendment changed the “look
back” date used to determine whether a separate event may be considered a “prior
offense” in assessing penalties under Section 3804.2 Whereas the calculation of a

      2
          In relevant part, Section 3804 (penalties) states as follows:

(Footnote continued on next page…)
                                                  2
(continued…)

           (a) General impairment. --
               Except as set forth in subsection (b) or (c), an individual who
           violates section 3802(a) (relating to driving under influence of
           alcohol or controlled substance) shall be sentenced as follows:
                 (1) For a first offense, to:
                    (i) undergo a mandatory minimum term of six months’
           probation;
                    (ii) pay a fine of $300;
                    (iii) attend an alcohol highway safety school approved by
           the department; and
                    (iv) comply with all drug and alcohol treatment
           requirements imposed under sections 3814 (relating to drug and
           alcohol assessments) and 3815 (relating to mandatory sentencing).
                 (2) For a second offense, to:
                    (i) undergo imprisonment for not less than five days;
                    (ii) pay a fine of not less than $300 nor more than $2,500;
                    (iii) attend an alcohol highway safety school approved by
           the department; and
                   (iv) comply with all drug and alcohol treatment
           requirements imposed under sections 3814 and 3815.
                                           *        *   *
           (e) Suspension of operating privileges upon conviction.
              (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; or
                 (ii) an offense which is substantially similar to an offense
           enumerated in section 3802 reported to the department under
           Article III of the compact in section 1581 (relating to Driver's
           License Compact).
(Footnote continued on next page…)
                                                3
prior offense under the former version of the statute included any conviction within
ten years before the present violation, the calculation under the amended provision
includes any conviction within ten years before the sentencing on the present
violation. Section 2 of Act 2014-189 provides that the amendment of Section
3806(b) “shall apply to persons sentenced on or after [December 26, 2014,] the
effective date of this section.”
              On January 12, 2015, Licensee was convicted of the June 1, 2014
violation of Section 3802(a)(1). Because Licensee had yet to be convicted for the
earlier DUI charge, he did not have any prior offenses as that term is defined in
Section 3806(b), and he was sentenced for a first offense under Section 3804(a)(1).
In accordance with the statutory exception to suspension contained in Section
3804(e)(2)(iii), the Department did not impose a suspension for this conviction.
              Subsequently, on February 24, 2015, Licensee was convicted of the
March 2014 violation of Section 3802(a)(1). The Carbon County criminal court


(continued…)

                 (2) Suspension under paragraph (1) shall be in accordance with
              the following:
                   (i) Except as provided for in subparagraph (iii), 12 months
              for an ungraded misdemeanor or misdemeanor of the second
              degree under this chapter.
                    (ii) 18 months for a misdemeanor of the first degree under
              this chapter.
                   (iii) There shall be no suspension for an ungraded
              misdemeanor under section 3802(a) where the person is subject
              to the penalties provided in subsection (a) and the person has
              no prior offense.
75 Pa.C.S. §3804(a)(1)-(2), (e)(1)-(2) (emphasis added).



                                               4
declined to apply the recently amended version of Section 3806(b) to Licensee’s
criminal case and also sentenced him as a first offender. However, by notice dated
April 14, 2015, the Department informed Licensee that, because his January 12,
2015 conviction was a “prior offense” under Section 3806(b), his operating
privilege would be suspended for one year in accordance with Section
3804(e)(2)(i).
              Licensee appealed to the trial court, which conducted a de novo
hearing.   Licensee argued that he was eligible for the statutory exception to
suspension contained in Section 3804(e)(2)(iii) because on March 15, 2014, the
date of the underlying offense, he had no prior DUI offenses. The Department
responded that Licensee’s previous conviction [on January 12, 2015] of his second
[June 1, 2014] offense was properly considered a prior offense under Section
3806(b), and, as a result, Licensee was not eligible for the statutory exception to
suspension.
              By order dated December 14, 2015, the trial court denied Licensee’s
appeal and held that the current version of Section 3806(b) applied and required
that Licensee’s operating privileges be suspended for one year. In its opinion, the
trial court observed that its review was strictly limited to the civil consequences of
Licensee’s convictions that were imposed by the Department. The trial court
further concluded that a one-year suspension of Licensee’s operating privilege is a
civil sanction that does not violate the ex post facto provisions of the United States
or Pennsylvania Constitutions and emphasized that the denial of Licensee’s license
suspension appeal had no effect on his underlying criminal case.




                                          5
                On appeal to this Court,3 Licensee argues that the trial court erred by
applying the amended version of Section 3806(b) to his driver’s license suspension
appeal rather than the language that was in effect at the time he committed the
underlying offense.
                Licensee notes that the certified conviction report, form DL-21,
executed by the Carbon County Clerk of Courts reflects that, following his Carbon
County DUI conviction, he was sentenced under Section 3804(a)(1) (penalties for
first-time offenders). Citing Gigous v. Department of Transportation, Bureau of
Driver Licensing, 4 A.3d 716 (Pa. Cmwlth. 2010), Licensee asserts that, where the
DL-21 form reflected that he had no prior offenses, and Section 3804(e)(2)(iii)
provides that an individual convicted of an ungraded misdemeanor with no prior
offenses is exempt from a license suspension, the Department erred by ignoring the
DL-21 form and suspending his operating privileges.
                The licensee in Gigous was charged with DUI in April 2006. While
those charges were pending, the licensee was charged with a second DUI in May
2007.       In August 2007, the licensee was placed in Alternative Rehabilitative
Disposition for the 2007 offense. Thereafter, in 2008, the licensee pled guilty to
the 2006 offense. Based on these facts, the Department suspended the licensee’s
operating privileges for twelve months pursuant to Section 3804(e)(2)(i) for the
2006 offense. Ultimately, however, applying the plain language of the former

        3
         Our scope of review in an appeal of a license suspension after a de novo hearing by the
trial court is limited to determining whether the findings of fact are supported by competent
evidence or whether the trial court committed an error of law or an abuse of discretion in
reaching its decision. Rothstein v. Department of Transportation, Bureau of Driver Licensing,
922 A.2d 17, 19 n.6 (Pa. Cmwlth. 2006). Where, as in this case, the material facts are
undisputed, (Licensee’s Brief at 2; Department’s Brief at 6 n.1), the appeal presents a pure
question of law and our scope of review is plenary. Id.


                                               6
version of Section 3806(b), we held that, at the time of his 2006 offense, the
licensee had no prior DUI offenses requiring a suspension of his license.
              Importantly, Gigous was decided under the prior version of Section
3806(b). In making this argument, Licensee disregards the fact that the statutory
definition of “prior offenses” applied in this case measures the ten-year period
from the date of sentencing on the present violation, not from the date of the
underlying offense. Accordingly, Licensee’s reliance on Gigous is misplaced, and
this argument necessarily fails.
              Licensee next contends that the amended version of Section 3806(b)
cannot be applied retroactively to prior conduct. However, he acknowledges the
contrary decision in Alexander v. Commonwealth, 880 A.2d 552 (Pa. 2005). In
Alexander, our Supreme Court addressed the issue of whether, under the former
version of the Vehicle Code, “[a] driver whose previous DUI convictions predate
the effective date of the Interlock Law,[4] but whose latest DUI occurred after the
effective date, may, as a consequence of the latest conviction, be subject to the
recidivist provisions of the Interlock Law, or whether the imposition of the
interlock requirement in such an instance constitutes an impermissibly retroactive
application of the statute.” Id. at 557. The court emphasized that “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.” Id. at
559 (citation omitted). The court concluded that the application of the Interlock




       4
          Former 42 Pa.C.S. §§7001-7003 required courts to order the installation of ignition
interlock devices as a condition of license restoration for serial offenders.



                                             7
Law to the licensee did not violate any restriction on the retroactive application of
statutes or implicate any substantive rights, explaining in part as follows:

             The General Assembly did not expressly state that the
             Interlock Law is to be applied retroactively. Thus, an
             ignition interlock requirement could not be imposed as a
             licensing restriction for a DUI conviction which occurred
             before the effective date of the Interlock Law--such as,
             for example, appellee’s second DUI conviction in 1994.
             But that is not the issue posed in this appeal. The
             Department’s interlock notification in this case was
             occasioned by appellee’s third DUI conviction, which
             arose after enactment of the Interlock Law.... It is not the
             two previous DUI convictions that have exposed appellee
             to the interlock requirement; it is his third conviction,
             occurring after passage of the Law, which brings him
             within its purview.
             The statute does not reach into the past and increase the
             punishment, or the civil consequences, of concluded DUI
             convictions. Rather, it takes the recidivist DUI defendant
             as it finds him after the post-Interlock Law DUI
             conviction.... There is no doubt that the Interlock Law
             imposes a licensing consequence for recidivist DUI
             offenders that is greater than the licensing consequence
             such recidivist offenders faced prior to the enactment of
             the statute. However, the statute does not look back and
             enhance the punishment recidivist DUI offenders
             received for their prior DUI convictions. Instead, the
             enhanced consequence applies solely with respect to
             those DUI convictions occurring after the effective date
             of the law....

880 A.2d at 559-560 (emphasis in original). Similarly, as to Licensee, Section
3806(b) applies to a conviction that occurred after the effective date of the
amendment.
             Licensee contends that Alexander is distinguishable because both of
his DUI offenses occurred prior the amendment of Section 3806(b), thereby

                                          8
making the law retroactively applied in his case. However, as the Department
observes, Pennsylvania courts have previously rejected this argument in cases
under Section 3805 of the Vehicle Code, involving the requirement to install
interlock ignition devices. 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). In Schrankel, the licensee’s DUI offense predated the enactment of the
Driver’s License Compact,5 but the licensee was convicted after the statute was
enacted. The Supreme Court upheld the Department’s imposition of a one-year
license suspension, explaining that while commission of a DUI offense is a
necessary component for license suspension, the triggering event is the date of
conviction. Id. at 692. In Martz, the court held that the mere fact that the prior
conviction occurred before the effective date of the statute was not dispositive; the
licensee’s prior conviction was simply a condition that the statute depended upon,
and the statute’s dependence on a prior offense that occurred before the statute was
enacted did not render the statute retroactive. Id. at 749.
               The Department argues that, as in Schrankel, Section 3806(b) is not
retroactively applied in this instance because the triggering event for Licensee’s
suspension was the second DUI conviction, which occurred after the amendment
was enacted. We agree. Schrankel; Martz.
               Finally, we address Licensee’s contention that the amended version of
Section 3806(b) violates the ex post facto provisions of the United States or
Pennsylvania Constitutions. Licensee acknowledges that the license suspension
was a civil consequence of his conviction, not a criminal penalty. Nevertheless,

      5
          75 Pa.C.S. §§1581-1586.


                                           9
although he does not elaborate, Licensee maintains that the mere fact that a civil
consequence is at issue does not preclude an ex post facto analysis.
             In Frederick v. Department of Transportation, Bureau of Driver
Licensing, 802 A.2d 701 (Pa. Cmwlth. 2002), we held that the application of
section 7002 of the Judicial Code, 42 Pa.C.S. §7002, requiring courts to order the
installation of an approved ignition interlock system on each vehicle owned by
repeat DUI offenders, did not violate the prohibition against ex post facto laws
contained in the United States Constitution. We explained:
             In order for a law to transgress the ex post facto
             prohibition, the law must retrospectively alter the
             definition of criminal conduct or retrospectively increase
             the penalty by which a crime is punishable. Thus the ex
             post facto prohibition applies only to statutes which
             involve the imposition of penal sanctions. In determining
             whether a law is penal, courts look to the purpose of the
             statute. Where the statute imposes a disability to
             accomplish some legitimate government purpose other
             than to punish, the statute is not considered penal.
             It is readily apparent that the disability imposed by
             Section 7002(b) [of the Judicial Code, 42 Pa.C.S. §7002]
             is not penal. The required installation of ignition
             interlock systems is designed to keep the streets safe
             from the danger posed by intoxicated drivers, not to serve
             as an additional punishment to the offender. To the
             extent that Section 7002(b) continues a license
             suspension, Pennsylvania courts have repeatedly held
             that a DUI offender’s loss of driving privileges is not a
             criminal penalty.
Id. at 704 (citations omitted) (emphasis added). Because it is well settled that a
DUI offender’s license suspension is not a criminal penalty, we reject Licensee’s
contention that the suspension imposed under Section 3804(e) of the Vehicle Code
following his February 24, 2015 conviction and sentencing for the March 2014



                                         10
violation of Section 3802(a)(1) violates ex post facto clauses of the Pennsylvania6
or United States Constitution.7
               Accordingly, we affirm the trial court’s order.




                                             MICHAEL H. WOJCIK, Judge




       6
         “No ex post facto law, nor any law impairing the obligations of contracts, or making
irrevocable any grant of special privileges or immunities, shall be passed.” Pa. Const., art. 1,
§17.
       7
         “No state . . . shall pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts . . . .” U.S. Const., art. 1, §10.


                                               11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David A. Kocis,                       :
                                      : No. 31 C.D. 2016
                       Appellant      :
                                      :
                  v.                  :
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing            :


                                   ORDER


           AND NOW, this 3rd day of August, 2016, the order of the Court of
Common Pleas of Carbon County, dated December 15, 2015, is affirmed.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
