845 A.2d 249

George MANKIN v. COMMONWEALTH of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant.

Commonwealth Court of Pennsylvania.

Submitted Sept. 19, 2003.

Decided March 24, 2004.

Timothy P. Wile, Asst. Counsel In Charge, Harrisburg, for appellant.

*250No appearance -entered on behalf of ap-pellee.

BEFORE: COLINS, President Judge, and LEAVITT, J„ and KELLEY, Senior Judge.

OPINION BY

Judge LEAVITT.

This is an appeal by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Penn-DOT) from the order of the Court of Common Pleas of Montgomery County (trial court) denying the statutory appeal of George L. Mankin (Licensee) of a one year suspension of his operator’s license but sustaining his appeal of PennDOT’s directive that Licensee equip all his vehicles with an ignition interlock device.1

The facts giving rise to this appeal are not in dispute. On June 14, 2002, Licensee was arrested and charged with driving under the influence (DUI) for the third time.2 On November 26, 2002, PennDOT sent an official notice to Licensee advising him that as a result of his DUI conviction his driving privilege was being suspended for a period of one year effective October 28, 2002.3 The notice also advised Licensee that he was required to have all vehicles owned by him equipped with an ignition interlock system and that failure to comply' with this requirement would result in the suspension of his license for an additional year.

Licensee filed a timely appeal with the trial court. A hearing de novo was held on February 24, 2003, after which the trial court entered an order sustaining the appeal as to the interlock requirement alone and denying Licensee’s appeal of the one-year suspension of his operating privileges. The trial court relied upon Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth.2002) to hold that the sole authority for ordering the installation of the ignition interlock device is vested with the trial court and, therefore, PennDOT did not have the authority to order Licensee to install an ignition interlock device. The present appeal followed.4

PennDOT raises two arguments on appeal. First, PennDOT asserts that it has a mandatory duty, independent from *251the authority of a court, not to restore the operating privilege of a repeat DUI offender unless and until that offender presents certification that he or she has complied with the Ignition Interlock Law. Second, PennDOT contends that the Ignition Interlock Law applied to Licensee even though it was not in effect when his first two DUI convictions occurred.5

PennDOT acknowledges that the trial court was bound by this Court’s holding in Schneider, but it maintains that Schneider, which is currently on appeal to the Pennsylvania Supreme Court, was wrongly decided. In the meantime, our Supreme Court recently decided Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488 (2003), holding the Ignition Interlock Law to be unconstitutional in part. We must consider the trial court’s holding in light of Mockaitis.

Prior to Mockaitis, this Court held that a licensee’s appeal from imposition of an ignition interlock device by PennDOT should be sustained where that requirement had not been imposed by a court order at sentencing. See, e.g., Watterson v. Department of Transportation, Bureau of Driver Licensing, 816 A.2d 1225 (Pa.Cmwlth.2003); McGrory v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d 506 (Pa.Cmwlth.2003). In Mockaitis, our Supreme Court concluded that in the Ignition Interlock Law the legislature delegated executive branch responsibility to the courts of common pleas for regulating the operating privileges of repeat DUI offenders; this delegation was found unconstitutional.6 Consequently, the Court severed three provisions of the Law; specifically subsection 7002(b),7 subsection 7003(1),8 and the last clause of subsection 7003(5),9 which refers to subsec*252tion 7003(1), from the remainder of the Ignition Interlock Law.10 Nevertheless, the Supreme Court made clear that the statute’s ignition interlock requirement was viable and enforceable.11 It explained that:

[Sjevering those portions of [the Ignition Interlock Law] which effectuate the delegation to the sentencing court of the license restoration-related executive responsibilities of ordering installation of the devices and certifying that they have been installed does not render the remainder of the statute incapable of execution in accordance with legislative intent. ... The [Ignition Interlock Law] thus still prevents recidivist DUI offenders from lawfully operating motor vehicles on the highways in Pennsylvania unless they have an approved limited license and are driving a properly-equipped vehicle.

Mockaitis, 575 Pa. at 29, 834 A.2d at 502-503. Under the surviving portion of the Ignition Interlock Law, DUI offenders who seek restoration of their driving privileges must apply to PennDOT for an ignition interlock restricted license.12 As the Supreme Court noted,

The Act thus still prevents recidivist DUI offenders from lawfully operating motor vehicles on the highways in Pennsylvania unless they have an approved limited license and are driving a properly equipped vehicle.

Mockaitis, 575 Pa. at 29-30, 834 A.2d at 503.

*253It is conceivable that an operator with an ignition interlock restricted license could make arrangements for the use of a properly equipped vehicle without installing an interlock device on his own vehicle. The operator might lease or borrow a properly equipped vehicle during the period of the restricted license. Indeed, there are some operators that may not own a registered vehicle but would, nonetheless, be required under the Ignition Interlock Law to drive only a properly equipped vehicle when on the Commonwealth’s highways. The Ignition Interlock Law after Mockaitis does not require the installation of an ignition interlock device on a specific vehicle. It requires the recidivist DUI licensee to obtain a restricted license from PennDOT as a condition precedent to restoration of driving privileges; that license only permits operation of vehicles equipped with an ignition interlock device.

Accordingly,13 we affirm the trial court’s decision to sustain Licensee’s appeal of PennDOT’s directive to install an ignition interlock device on each of his vehicles, but on different grounds. However, PennDOT retains the authority to require Licensee to obtain a restricted license upon restoration of his driving privileges after suspension.

President Judge COLINS concurs in the result only.

ORDER

AND NOW, this 24th day of March, 2004, the order of the Court of Common Pleas of Montgomery County dated February 24, 2003 is hereby affirmed without prejudice to the Department of Transportation, Bureau of Driver Licensing’s authority to issue an ignition interlock restricted license upon restoration of Licensee’s driving privileges.

Mankin v. Commonwealth
845 A.2d 249

Case Details

Name
Mankin v. Commonwealth
Decision Date
Mar 24, 2004
Citations

845 A.2d 249

Jurisdiction
Pennsylvania

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