Commonwealth v. Smith
Commonwealth v. Smith
Opinion of the Court
Opinion by
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Allegheny County reversing the order of the Secretary of Transportation (formerly the Secretary of Revenue) suspending the motor vehicle license of Howard D. Smith for seventy-five days.
Appellee filed a Motion to Quash on the ground that the appeal was not perfected until a date beyond the 30-day appeal period as set down in the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. (Act No. 223), 17 P.S. §211.502(a). An examination of the record reveals that the appeal was taken within the thirty-day period, and the Motion to Quash is therefore denied.
On August 2J¡, 1969, appellee was apprehended by the Pennsylvania State Police for speeding 77 m.p.h. in a 65 m.p.h. zone in violation of Section 1002(b) (7) of The Vehicle Code, Act of April 29, 1959, P. L. 58, as amended, 75 P.S. §1002(b)(7). An information was filed against him, and, without appealing before the Magistrate, he paid the fine and costs on September 15, 1969. A report of this conviction was sent to the Department of Transportation by the Magistrate, and six points were assigned to appellee’s driving record as mandated by Section 619.1(b) of The Vehicle Code, as amended, 75 P.S. §619.1 (b). A notice of this six-
On March 5,1910, appellee was apprehended by the Pennsylvania State Police for speeding 84 m.p.h. in a 65 m.p.h. zone again in violation of Section 1002(b) (7) of The Vehicle Code. On March 26, 1970, the Magistrate issued a warrant for the arrest of appellee, and on May 5, 1970, appellee, to avoid being arrested, paid the fine and costs to the State Police. This payment was received by the Magistrate on May 1,1910, the date of conviction. Upon receipt of this conviction, the Secretary, by notice dated July 15, 1970, notified appellee that six points were assigned to his driving record, making his total point accumulation eleven points. Appellee was directed, as mandated by Section 619.1(g),
By notice dated September 8, 1970, appellee was notified that a fifteen-day suspension of his operator’s license was imposed, based on his second speeding conviction,
Appellee contests his second speeding conviction only. An examination of the record reveals that (despite the hearing judge’s statement in court that the merits of the speeding violation could not be dealt with) appellee testified at length as to why he did not deserve the citation, the letters of protest he wrote, and the economic consequences should his license be suspended. Paced with being arrested, appellee paid the fine and costs for the second conviction but wrote on the ticket, “With protest and not guilty”. The following quotation from Virnelson Motor Vehicle Operator License Case, 212 Pa. Superior Ct. 359, 368, 243 A. 2d 464, 469-470 (1968), is appropriate here: “However, in determining ‘whether the petitioner is subject to suspension’, the lower court will merely determine whether there has been a compliance with section 619.1. At the hearing before the lower court the Commonwealth should produce the records of convictions received by the Department of Eevenue from the magistrates and courts of record in the proper form, and the secretary’s record compiled therefrom which justified the suspension. If these documents show that the suspension was given in accordance Avith the mandate of section 619.1, the Commonwealth has produced a prima facie case for suspension. If the defendant wishes he may then proceed to show that he was not convicted or that the records or the computation of the secretary are incorrect. He may not go into the facts of his violation or mitigating circumstances thereof because the issue is whether he was convicted and not whether he should have
The court below stated in its opinion, “The basis in this Court for sustaining the appeal was the erroneous addition of five (5) points [for failure to pass the special examination] to the driver’s record of the defendant.” There is no question that appellee failed the special examination. The State Trooper who conducted the examination testfied at the hearing as follows: “On the confined course he pulled into left-hand lane to make a right-hand turn, which is an office [sic] violation. On the serpentine course, you must not use any brakes at any time, and he braked the entire serpentine course. On the on-street course he drove the entire test, with one hand and talked constantly and was very inattentive to my instructions.” Because appellee was extremely nervous during the examination, this Trooper did, however, recommend that appellee be examined again at a later date. The Department of Transportation evidently took the failure at face value (which under Section 619.1(g) it could do) because no reexamination was offered or given, and appellee was first notified of his failure upon receiving the September 8, 1970, notice of the imposition of five additional points to his record.
From a careful examination of this case, we have no choice but to conclude: (1) that even if the additional five points were erroneously assigned to appellee’s driving record, which they were not, his record would still show an accumulation of eleven points, sufficient to support the suspensions imposed by the Secretary under the provisions of Section 619.1(b), (i),
The order of the Court of Common Pleas of Allegheny County is reversed, and the order of the Secretary of Transportation (formerly the Secretary of Revenue) is reinstated. A reinstated suspension of seventy-five days shall be issued within thirty days.
75 P.S. §619.1 (f).
75 P.S. §619.1 (g).
Note that under Section 619.1(b) appellee’s first speeding violation exceeded tbe speed limit by 12 m.p.h. and warranted imposition of six points but no mandatory suspension, while appellee’s second speeding violation exceeded the speed limit by 19 m.p.h. and warranted not only six points but a 15-day suspension as well.
Note that Section 619.1(f) applies “When any person’s record for the first time shows as many as six (6) points. . . .” while Section 619.1(g) applies, as here, “When any person’s record has been reduced below six (6) points and for the second time shows as many as six (6) points. . . .” In the first section, one point credit is given, while in the second section no credit is given.
75 P.S. §619.1 (i).
75 P.S. §619.1 (h).
75 P.S. §619.1 (m).
It is interesting to note that the Legislature failed to provide in Section 619.1 for additional special examinations should the offender fail the first one given. Also, Section 619.1 (m) mentions restoration of the license without requiring successful completion of the special examination if once failed. The Bureau of Traffic Safety takes the position, however (utilizing the non-Point System Section 608(g) of The Vehicle Code), that before license restoration in such eases there must first be a successful completion of the special examination.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.