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Wilhelm v. Commonwealth1/20/2004
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the order of the Court of Common Pleas of Dauphin County (common pleas court) that denied in part and granted in part the appeal of Michael E. Wilhelm (Wilhelm) of the suspension of his operating privilege with an ignition interlock restoration requirement. The common pleas court denied the appeal of the operating privilege suspension and granted the appeal of the ignition interlock restoration requirement and ordered DOT to restore Wilhelm's operating privilege upon completion of the term of the suspension without an ignition interlock requirement.
On June 26, 1997, Wilhelm was arrested and charged with driving under the influence or a controlled substance (DUI) in violation of Section 3731 of the Vehicle Code, 75 Pa.C.S. §3731(a). Wilhelm was admitted into an accelerated rehabilitative disposition (ARD) program.
On April 17, 2002, Wilhelm was again arrested and charged with DUI. On September 23, 2002, the Court of Common Pleas of Delaware County (Delaware County Court) convicted Wilhelm. The Delaware County Court did not order the installation of the ignition interlock.
By notice dated November 21, 2002, DOT advised Wilhelm that his driving privilege was suspended for one year, effective December 26, 2002, and notified Wilhelm that prior to the restoration of his driving privilege, he must install an ignition interlock system in his vehicle(s).
On appeal to the common pleas court, Wilhelm challenged the imposition of the ignition interlock requirement and the suspension.
At the March 31, 2003, hearing, DOT introduced a packet of documents that included the notice of suspension, the report of the clerk of courts that indicated the September 23, 2002, conviction, the report of the clerk of courts that indicated the 1998 ARD, and Wilhelm's certified driving history. Wilhelm's counsel argued that DOT failed to establish that a judge ordered the imposition of the ignition interlock and that DOT could not use the 1998 ARD as one of the two convictions required under Section 7002(b) of the Act, 42 Pa.C.S. §7002(b), because it occurred prior to September 30, 2000, the effective date of the Act. Wilhelm's counsel argued that using a DUI conviction that occurred prior to the effective date of the Act would be an improper retroactive application of the Act. DOT's counsel argued that Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002) was wrongly decided and that the ARD could be counted as a prior offense and was not a retroactive application of the Act.
By order dated May 15, 2003, the common pleas court sustained Wilhelm's appeal as to the ignition interlock requirement. The common pleas court relied on this Court's decision in Schneider and determined that DOT did not have the authority to impose ignition interlock requirements where the sentencing court failed to do so.
DOT contends that it has the authority to refuse to restore the operating privilege of a repeat DUI offender unless and until that offender complies with the requirement of the Act notwithstanding the lack of a court order and that because Wilhelm's second DUI conviction occurred after the Act went into effect that the application of the Act to Wilhelm did not violate the general rule against the retroactive application of a new statute.
DOT asserts that because Wilhelm's second DUI conviction occurred after the Act went into effect, the application of the Act did not violate the general rule against the retroactive application of a statute. DOT asserts that the fact that the first
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