Fetherman v. Commonwealth, 1943 C.D. 2016.

167 A.3d 846

Daniel FETHERMAN, Appellant

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING

No. 1943 C.D. 2016.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 21, 2017

Decided August 3, 2017

Michael E. McHale, Lancaster, for appellant.

Terrance M. Edwards, Assistant Counsel, Harrisburg, for appellee.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE SIMPSON

Daniel Fetherman (Licensee) appeals from an order of the Court of Common Pleas of Monroe County¹ (trial court) that denied his license suspension appeal as untimely from the Department of Transportation's (DOT) 18–month suspension of Licensee's operating privilege under 75 Pa. C.S. § 1547(b)(1)(ii) and the one-year suspension of Licensee's operating privilege imposed under 75 Pa. C.S. § 1543. Licensee contends the trial court erred by failing to allow an appeal nunc pro tunc (late appeal by permission) in light of the U.S. Supreme Court's decision in Birchfield v. North Dakota, –––U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), which held that a state cannot criminally penalize a motorist for refusing to submit to a warrantless request for a blood test after being arrested for suspicion of driving under the influence of alcohol or controlled substance (DUI), a violation in Pennsylvania of 75 Pa. C.S. § 3802. Upon review, we affirm.

I. Background

On March 18, 2015, Pennsylvania State Police Trooper T. Miller arrested Licensee for DUI after making a motor vehicle stop. After arresting Licensee, Trooper Miller requested that Licensee submit to a chemical test of blood. Licensee asserts in his brief that he asked Trooper Miller to produce a warrant prior to the blood draw. Pet'r's Br. at 15. Based on Licensee's request, Trooper Miller determined Licensee's actions amounted to a refusal. Id. Therefore, Trooper Miller recorded Licensee's conduct on a DL–26 form as a refusal. See Reproduced Record (R.R.) at 6a.

On June 2, 2015, DOT mailed Licensee an official notice of suspension of his driving privilege as authorized by 75 Pa. C.S. § 1547(b)(1)(ii) for a period of 18 months as a result of his refusal to submit to chemical testing (First Suspension Notice). R.R. at 7a. DOT's notice informed Licensee that his suspension would become effective July 7, 2015. Id. In addition, the notice specified that Licensee had 30 days to file an appeal of the suspension to the appropriate court of common pleas. R.R. at 9a.

As to the criminal DUI offense, Licensee's driving record indicates that on August 21, 2015, he was convicted of DUI–general impairment, a violation of 75 Pa. C.S. § 3802(a)(1). Resp't's Ex. 2; Supplemental Reproduced Record (S.R.R.) at 24b. The record also shows that DOT took no action against him. Id.

On April 21, 2016, DOT mailed Licensee an official notice of suspension of his driving privilege as authorized by 75 Pa. C.S. § 1543 for a period of one year as a result of his conviction for a violation of 75 Pa. C.S. § 1543(b) (driving under an alcohol-related suspension), which occurred on February 10, 2016 (Second Suspension Notice). S.R.R. at 13b. DOT's notice advised Licensee that this suspension would become effective March 11, 2017. This notice also specified that Licensee had 30 days to file an appeal of the suspension to the court of common pleas. S.R.R. at 14b.

On August 2, 2016, Licensee, representing himself, filed a single appeal of both suspensions in the trial court. In support, Licensee cited the June 2016 decision in Birchfield, where the U.S. Supreme Court held that a state cannot criminally penalize an individual arrested for DUI for refusing a warrantless request for a blood test. See R.R. at 10a–18a. Essentially, Licensee argued the 2016 Birchfield decision provided "fresh evidence" for his appeal. R.R. at 12a. In response, the trial court scheduled an October 2016 hearing on the issues of whether Licensee should be able to pursue his appeal nunc pro tunc and whether DOT's suspensions of Licensee's driving privileges should be set aside. R.R. at 19a.

At the hearing, DOT submitted into evidence, without objection, Licensee's certified driving record and notices of suspension for both suspensions. See Resp't's Ex. 1; S.R.R. at 1b–11b; Resp't's Ex. 2; S.R.R. at 12b–26b. DOT requested that Licensee's appeal be dismissed as untimely as to both suspensions. To that end, DOT argued that more than a year passed since the First Suspension Notice, and that the appeal from the Second Suspension Notice was approximately 70 days late. See Tr. Ct. Hr'g, Notes of Testimony (N.T.), 10/20/16, at 5; R.R. at 25a.

Thereafter, Licensee stated that his entire appeal was based on Birchfield, which the Supreme Court did not hand down until June 23, 2016. Thus, although Licensee's refusal occurred in May 2015, and DOT mailed the First Suspension Notice in June 2015, Licensee argued that Birchfield did not become available to him until June 2016. See N.T. at 6–7; R.R. at 26a–27a.

As to the Second Suspension Notice, Licensee argued that if DOT had not suspended his license unconstitutionally through the First Suspension Notice, he would never have been suspended and thus he could not have been convicted for driving with a suspended license. N.T. at 7; R.R. at 27a. Summarizing Licensee's position, the trial court asked: "And you believe the Birchfield case applies to the refusal case, and therefore, you never would have the suspension for the 1543(b)." Id. Licensee replied: "A hundred percent, Your Honor." Id.

Five days after the hearing, the trial court entered an order denying Licensee's appeal of both suspensions. In an accompanying opinion, the trial court noted that Licensee's August 2, 2016 appeal was untimely as to both suspensions.

If an appeal is not filed within 30 days as statutorily mandated, the court has no jurisdiction to hear the appeal of the suspension unless the delay in filing the appeal was caused by fraud or a breakdown in the administrative process. Bye v. Dep't of Transp., Bureau of Driver Licensing, 147 Pa.Cmwlth. 205, 607 A.2d 325 (1992). Here, the trial court rejected Licensee's argument that the U.S. Supreme Court's 2016 decision in Birchfield constituted a breakdown in the administrative process. The trial court explained its decision as follows:

Licensee's reason for the late appeal was that the Birchfield case had not yet been decided. In addressing Licensee's appeal, we note that he fails to meet the standards of a nunc pro tunc appeal. Although Birchfield was decided after his two (2) notices of suspension were issued, his appeals remain untimely. Birchfield was decided June 23, 2016. Licensee filed his appeal August 2, 2016, which was more than thirty (30) days after the Birchfield decision. Even if Birchfield caused a 'breakdown in administrative proceedings' in some manner, Licensee failed to promptly bring his appeal after learning of this situation. The Licensee did not provide an excuse for this delay. As a result, the appeal must be dismissed.

We also find that Licensee's appeal, filed well beyond the time limit for an appeal in this case, does not meet the requirements for a nunc pro tunc appeal. There was no evidence of fraud, deception, coercion, duress or breakdown of the administrative process. The fact that new case law comes down from the U.S. Supreme Court, or any other appellate court, after the appeal period for a notice of suspension has passed, does not amount to a breakdown in the administrative process. Also, it certainly is not fraud, deception, coercion or duress. In arguing for an administrative breakdown, Licensee argues that Birchfield invalidates the statute which triggered his 1547 license suspension for a chemical test refusal. Licensee argues that absent the Birchfield decision, he did not have the ability to appeal his license suspension. This is not a breakdown in the process whereby he did not know he had a limited time to appeal, or relied on some type of process in which his appeal was not filed properly. Rather, he admits he had no right of appeal in the time frame prescribed by law, but should have that right now. There is no authority for that right under a nunc pro tunc application for relief in Pennsylvania.

Licensee also claims Birchfield retroactively applies to his 1547 refusal matter and therefore, such notice of suspension should now be dismissed. There is also no authority for that proposition by the Licensee. Likewise, Licensee argues his 1543(b) conviction in February 2016 is invalidated, since the conviction was due to driving with a DUI suspended license arising out of the 1547 refusal suspension. However, that also assumes retroactivity of Birchfield to the Licensee, for which we find no authority or evidence to support. It also ignores the fact that the suspension for the 1543(b) is based on a summary conviction that is of record and has not been appealed. Licensee has not challenged that conviction. This Court is without authority to do anything regarding the 1543(b) conviction leading to that notice of suspension, as the conviction still exists of record.

Finally, we find Birchfield has no application to the Licensee's appeal of his license suspensions. The Birchfield case specifically held that criminal repercussions under an implied consent law for blood tests without a warrant in DUI cases was unconstitutional. The U.S. Supreme Court specifically found no problem with civil penalties imposed on motorists who fail to comply, citing prior case law of that Court. (See Birchfield opinion p. 36). Civil penalties imposed under implied consent laws remain valid. Birchfield did not invalidate Pennsylvania's implied consent laws [sic] as it pertains to civil penalties, which include a license suspension, for a chemical test refusal. Therefore, even if timely filed, Licensee's appeal must be dismissed.

Tr. Ct., Slip. Op., 10/25/16, at 3–4 (emphasis added)....