Commonwealth v. Rosenberger

TAMILIA, Judge,

dissenting.

I respectfully dissent. I believe the majority falls into error in determining that 75 Pa.C.S. § 1543(b)1 does not apply because the trial court attempted to apply that section to a suspension unrelated to driving under the influence (DUI). That reasoning would certainly apply if the DUI suspension had been extinguished and the only effective suspensions were *45those unrelated to DUI. However, in dealing with an unlicensed driver, who never acquires a license and who initially received a suspension for DUI, it cannot be held that his DUI suspension was ever fulfilled or extinguished since he never applied for a driver’s license nor sent an acknowledgement of suspension to the Department of Transportation. There is no indication in the record that appellant notified the department by acknowledgement of suspension or revocation as required by 75 Pa.C.S. § 1541, Period of revocation or suspension of operating privileges:

(a) Commencement of period. — The period of revocation or suspension of the operating privilege shall commence as provided for in section 1540 (relating to surrender of license). No credit toward the revocation or suspension shall be earned until the driver’s license is surrendered to the department, the court or the district attorney, as the case may be. A nonresident licensed driver or an unlicensed driver shall submit an acknowledgment of suspension or revocation to the department in lieu of a driver’s license.

Id., § 1541(a) (emphasis added). As to the date the suspension for DUI became effective, 75 Pa.C.S. § 1540, Surrender of license, provides:

(a) Conviction of offense. — Upon a conviction by a court of competent jurisdiction for any offense which calls for mandatory suspension in accordance with section 1532 (relating to revocation or suspension of operating privilege), the court or the district attorney shall require the surrender of any driver’s license then held by the defendant and shall forward the driver’s license together with a record of the conviction to the department. The suspension or revocation shall be effective upon a date determined by the court or district attorney or upon the date of surrender of the license to the court or district attorney, whichever shall first occur.

Id., § 1540(a) (emphasis added).

Following the legislative rationale behind these statutes, it becomes evident that an unlicensed driver who is convicted *46begins revocation status upon a date determined by the court or upon surrender of the license to the court or district attorney, whichever comes first. Since there was no license to surrender in this case, the date of conviction on the DUI case, which was May 19, 1987, is the date the suspension began.

However, while the date of commencement of revocation is determined in accordance with section 1540, it must be measured against the provisions in section 1541 to determine its expiration date. Since no credit is earned toward the suspension period until acknowledgement of suspension is submitted to the department, the DUI suspension continues until those requirements are fulfilled. The subsequent offenses do not have any bearing on the continuance of the DUI suspension. Under this rationale, the trial court was correct in determining that despite the lapse of time which should have exhausted the period of DUI suspension, that period was never tolled because of failure of appellant to comply with section 1541(a). The court was correct in applying section 1543(a) to the non-DUI violations and section 1543(b) to violations while under suspension for DUI. Any other interpretation of this section would render meaningless the provisions of section 1541. It is absolutely clear that the legislature intended non-licensed drivers to submit as fully to the control of the department as is required by licensed drivers by submitting an acknowledgement of suspension in lieu of surrendering a driver’s license. The penalty for failure to do so is to extend the suspension period until submission to the department’s control has been accomplished. The legislative scheme is designed mindful of the multitude of drivers on our highways and the need to have a simple but precise manner of determining the status of all drivers, licensed or unlicensed, who have committed a violation resulting in suspension, placing the responsibility on the driver to assure that the information is provided to the department. The majority asserts Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990), is controlling as it holds a sentence of five years suspension may not be attributed to a DUI offense when the DUI portion of the offense had been extinguished. Taylor is not controlling because the DUI *47penalty assessed was for ARD to be served in a period of three months. Upon completion of three months ARD, the DUI aspect of the sentence was completed where the additional five-year suspension was assessed in accordance with the habitual offenders statute. Here, in light of the discussion above, the record is clear that the DUI suspension had never been fulfilled or extinguished, hence the application of section 1543(b).

I agree with the majority that Commonwealth v. McCrosson, 392 Pa.Super. 261, 572 A.2d 791 (1990), is not precisely on point, although it can be deduced from the holding in that case that no section of the Motor Vehicle Code may be ignored in ascertaining the legislative scheme to control the licensing and use of automobiles.

As to the claim of ineffectiveness for failing to raise the issue of consecutive sentences, this is a non-issue. While the offense was a single offense, under the Vehicle Code it resulted in two violations, each with a penalty. This follows without question as driving without a license is a separate offense from driving while under suspension. Failure to punish both gives the wrongdoer a free ride under one or the other. Whether the sentences should be imposed concurrently or consecutively is purely within the discretion of the trial judge. Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988).

For the above reasons, I would affirm the Orders and judgments of sentence of the trial court.

. 75 Pa.C.S. § 1543(b) provides:

(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.