Opinion
April 13, 1984.
Motor vehicles — Revocation of motor vehicle operator's license — Habitual offender — Vehicle Code, 75 Pa. C. S. § 1542 — Constitutionality.
1. Provisions of the Vehicle Code, 75 Pa. C. S. § 1542, requiring the revocation of the motor vehicle operator's license of an habitual offender, meet notice and hearing due process requirements, do not offend equal protection principles, do not cause the imposition of cruel and unusual punishment and are not otherwise unconstitutional. [578-9]
Submitted on briefs January 30, 1983, before Judges WILLIAMS, JR., BARRY and PALLADINO, sitting as a panel of three.
Appeal, No. 3002 C.D. 1982, from the Orders of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Thomas P. Yeckley, Sr., Nos. SA 503 and 553 of 1982.
Motor vehicle operator's license revoked by Department of Transportation. Additional two year revocation ordered by Department. Licensee appealed revocations to the Court of Common Pleas of Allegheny County. Appeals consolidated. Appeals dismissed. PAPADAKOS, A.J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James R. Fitzgerald, for appellant.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Thomas P. Yeckley, Sr. (Appellant), appeals from Judge PAPADAKOS' order dismissing his consolidated appeals which, in turn, were taken from the Department of Transportation's (Department) revocation of Yeckley's driving privileges. After carefully considering the Appellant's arguments we affirm the decision of the Court of Common Pleas of Allegheny County.
The facts are not in dispute. The Appellant was convicted of violating Section 3731 of the Motor Vehicle Code (Code) (driving under the influence of alcohol or controlled substance), on four separate occasions. Under Section 1542 of the Code, the "habitual offender" provision, Appellant's driving privileges were revoked for five years after his third conviction and for an additional two years following his fourth conviction. The action taken by the Department was fully consistent with § 1542. Indeed, the Department's action was not discretionary.
Section 1542 provides in pertinent part:
(a) . . . A "habitual offender" shall be any person whose driving record . . . shows that such person has accumulated the requisite number of convictions . . . within any period of five years thereafter.
(b) . . . Three convictions arising from separate acts of any one or more of the following offenses shall result in such person being designated as a habitual offender:
(1) Any offense set forth in section 1532 (relating to revocation or suspension of operating privilege).
(d) . . . The operating privilege of any person found to be a habitual offender under the provisions of this section shall be revoked by the department for a period of five years.
(e) . . . Any additional offense committed within a period of five years shall result in a revocation for an additional period of two years. (Emphasis added.)
The Appellant challenges Section 1542 on constitutional grounds. His task is not an easy one as we recognize the considerable presumption in favor of the constitutionality of legislation. Lehigh Foundations, Inc. v. Workmen's Compensation Appeal Board, 39 Pa. Commw. 416, 423, 395 A.2d 576, 580 (1978).
Appellant argues lack of due process and denial of equal protection. Notice and opportunity to be heard requirements of due process have been met by virtue of a de novo hearing in the court below. Appellant's equal protection claim is equally untenable. Habitual offenders are not a suspect class nor is driving a fundamental right, thus under a rational relation standard the statute in question clearly passes constitutional muster.
See Commonwealth v. Lehman, 8 Pa. Commw. 603, 305 A.2d 730 (1973); Grindlinger v. Department of Transportation, Bureau of Traffic Safety, 7 Pa. Commw. 347, 300 A.2d 95 (1973).
Yeckley's challenge under the Eighth Amendment, that revocation is "cruel and unusual" punishment, is without foundation. We believe that such a revocation does not shock the general conscience, where the Appellant has been convicted of drunk driving on four separate occasions.
See generally Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978), cert. denied, 439 U.S. 1091 (1979); United States v. Thevis, 526 F.2d 989 (5th Cir. 1976), cert. denied, 429 U.S. 928 (1976); see also Owens v. State ex rel. Vannatta, 382 N.E.2d 1312 (Ind.App. 1978).
Appellant cites no authority to support his contention that Section 1542(c) is unconstitutional and his naked assertion of unconstitutionality does not justify discussion.
Section 1542(c) provides:
Accelerative Rehabilitative Disposition as an offense — Acceptance of Accelerative Rehabilitative Disposition for any offense enumerated in subsection (b) shall be considered an offense for the purposes of this section. (Citation omitted.)
ORDER
AND NOW, April 13, 1984, the decision of the Court of Common Pleas of Allegheny County dismissing the Appellant's appeal is affirmed.