Commonwealth Court: Separate Alcohol Related Offenses Require Seperate Consecutive Suspensions

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 27, 2009
The Department of Transportation, Bureau of Driver Licensing (DOT)
appeals the order of the Court of Common Pleas of Lackawanna County (trial
court) which sustained the appeals of Sean Robert Guinan (Guinan) from two
consecutive ninety day suspensions¹ of his driver’s license pursuant to Section
1532(d) of the Vehicle Code (Code), 75 Pa.C.S. §1532(d).² The trial court ordered
that the two ninety day suspensions be served concurrently.
¹ The trial court consolidated the appeals for hearing but issued two separate orders. DOT appealed each order.  This Court consolidated the two appeals.
² Section 1532(d) of the Code states in pertinent part as follows:
The department shall suspend the operating privilege of any person upon receiving a certified record of the driver’s conviction, adjudication of delinquency or admission into a preadjudication program for a violation under 18 Pa.C.S. § 6307 (relating to misrepresentation of age to secure liquor or malt or brewed beverages), 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) or 6310.3
 
(Footnote continued on next page…)
By official notice dated July 15, 2008, DOT informed Guinan that his operating privilege was suspended for ninety days effective August 19, 2008, as a result of his violation of Section 6310.3 of the Crimes Code, 18 Pa.C.S. §6310.3, (relating to carrying a false identification card) on June 14, 2008. Also, by official notice dated July 15, 2008, DOT informed Guinan that his operating privilege was suspended for ninety days effective November 17, 2008, as a result of his violation of Section 6308 of the Crimes Code, 18 Pa.C.S. §6308, (relating to underage drinking) on June 14, 2008. Guinan appealed both suspensions to the trial court.
 At a de novo hearing, DOT introduced a packet of documents certified by the Director of the Bureau of Driver Licensing.  The packet contained the official notices of suspensions; the reports of a court ordering the suspensions; and Guinan’s driving record. Guinan challenged the length of the suspensions. His attorney argued that the two ninety day suspensions should be concurrent rather than consecutive. DOT’s attorney argued that the trial court did not have the discretion to make the suspensions concurrent.
The trial court ordered DOT to reinstate the suspension of Guinan’s operating privileges and ordered the two suspensions to run concurrently for a total period of ninety days. The trial court reasoned:
 
(continued…)
(relating to carrying a false identification card).  The duration of the suspension shall be as follows:
(1) for a first offense, the department shall impose a suspension for a period of 90 days.
Under the fair reading of the statute it appears that the Court has the discretion as to whether or not the suspension shall read consecutive or concurrent and the Court in the exercise of that discretion determined that basic fairness required that the two ninety (90) day suspensions run concurrent for a total of ninety (90) days.

Trial Court Opinion, February 27, 2009, at 2; Reproduced Record at 53a.

DOT contends that the trial court erred as a matter of law when it ordered the suspensions to run concurrently because DOT is required to impose all operating privilege suspensions consecutively.³
DOT asserts that under Section 1544 of the Code, 75 Pa.C.S. §1544(b), prohibits concurrent suspensions. Section 1544(b) of the Code provides:
(b) Additional suspension.—When any person’s record shows an additional suspension of the operating privilege assessed during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation for the appropriate period and the person shall be so notified in writing.
In Xenakis v. Department of Transportation, Bureau of Driver Licensing, 702 A.2d 572 (Pa. Cmwlth. 1997), this Court addressed a similar factual situation. Markos Jason Xenakis (Xenakis) was convicted on October 4, 1995, for violating Sections 6307, 6308, and 6310.3 of the Crimes Code, 18 Pa.C.S. §§6307, 6308, and 6310.3. Section 6307 relates to misrepresentation of age to secure
3
This Court’s review is limited to determining whether the trial court’s findings are supported by competent evidence, whether errors of law were committed, or whether the trial court committed an abuse of discretion.  Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996).
liquor, malt, or brewed beverages.  Sections 6308 and 6310.3 are the same sections
that Guinan violated. For each conviction, Xenakis received a notice from DOT
that his operating privilege was suspended for a ninety day period. Xenakis
appealed to the Court of Common Pleas of Allegheny County.  Xenakis argued
that because each conviction arose from the same incident that only one ninety day
suspension was warranted under Section 1532(d) of the Code, 75 Pa.C.S.
§1532(d). Xenakis also argued that he had already served one hundred twenty
days of a suspension. The Court of Common Pleas of Allegheny County sustained
the appeal and determined a single ninety day suspension was proper because the
charges arose from a single incident and Xenakis had already served his
suspension. Xenakis, 702 A.2d at 573-574.
DOT appealed to this Court and contended that under Section 1532(d)
of the Code it was required to impose a ninety day suspension for each conviction.
Xenakis, 702 A.2d at 574. This Court agreed and reversed:
Section 1532(d) further provides that the term of suspension for a first offense is 90 days; one year for a second offense; and two years for a third or subsequent offense. The section also provides that multiple suspensions are to be served consecutively.
Licensee [Xenakis] was convicted of three separate offenses related to an incident that occurred on September 27, 1995.  Separate 90-day suspensions are warranted where each offense is characterized separately and none of the offenses are lesser-included offenses of the others. . . . . . . . Licensee [Xenakis] violated Section 6307 of the Crimes Code when he presented himself to a licensed dealer, distributor or other person and falsely represented that he was 21 years of age or older in order to obtain alcoholic beverage. Licensee [Xenakis] violated Section 6308 when, among other things, he purchased and consumed an alcoholic beverage. He violated Section 6310.3 by carrying an identification card that falsely identified the name, age, date of birth or photograph of Licensee [Xenakis] as being 21 years of age or older.  Different offers of proof are required to convict under each of the offenses, which by their terms are separate and distinct. . . . . Here, DOT did not use an enhancement provision but instead imposed a first offense 90-day suspension for each violation. Each conviction arising from a separate act merits punishment . . . and under Section 1544(b) of the Vehicle Code, 75 Pa.C.S. § 1544(b), all suspensions imposed upon a licensee’s operating privilege are to be served consecutively. . . .
. . . . Because Licensee was convicted for three separate and distinct violations of the Crimes Code, DOT had the authority to impose consecutive 90-day suspensions. (Citations omitted).
Xenakis, 702 A.2d at 574-575.
Similarly, in Department of Transportation, Bureau of Driver
Licensing v. Gonzalez, 543 A.2d 231 (Pa. Cmwlth. 1988), this Court held that
suspensions for two DUI convictions could not be served concurrently because
Section 1544 of the Code, 75 Pa.C.S. §1544, required that mandatory periods of
suspension be served consecutively.
Here, Guinan was convicted of two offenses which this Court in
Xenakis determined were separate not lesser included offenses.  This Court has
consistently held that two separate offenses necessitate two periods of suspension.
This Court has further determined that under Section 1544(b) of the Code, 75
Pa.C.S. §1544(b), these suspension periods must be served consecutively and not concurrently. Consequently, the trial court erred when it ordered that DOT apply the suspensions concurrently.
Accordingly, this Court reverses.
BERNARD L. McGINLEY, Judge