This is a license suspension appeal case in which defendant’s driving privileges were suspended for a one-year period pursuant to 18 Pa.C.S. §6310.4 because he was convicted of violating 18 Pa.C.S. §6308 for a second time.
The facts in the instant case demonstrate that defendant was issued a citation for underage drinking based upon his involvement in a physical altercation which took place at a local pizza parlor. Since this was defendant’s second violation of section 6308, he received notification that his license was being suspended for a one-year period in accordance with section 6310.4(b)(2).
In addressing defendant’s equal protection argument and due process claim, we must initially stress that the United States Supreme Court has not held that a classification based upon age is a suspect classification warranting review under the strict scrutiny test. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed. 2d 520 (1976). Moreover, defendant has failed to cite to any precedent which establishes that driving is a fundamental right requiring review under the strict scrutiny test. Clearly, defendant is misguided in relying upon Lyles v. City of Philadelphia, 88 Pa. Commw. 509, 490 A.2d 939 (1985), and Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed. 2d 397 (1976), to support his proposition, that “age, while not a suspect classification, has been recognized as a sensitive classification and therefore, requires an intermediate or heightened standard of review.” In both Boren and Lyles, the Supreme Court only established that gender and commercial speech classifications warrant an intermediate standard of review. In fact the Supreme Court in Murgia, supra, clearly established that the proper test to be applied in the instant case is the rational basis test.
We turn then to examine this classification under the rational basis standard. “This inquiry employs a
Moreover, we find the state’s classification (i.e., status as a minor) in the subject statute may be found by the legislature to serve a legitimate government interest. The Commonwéálth has a legitimate interest in controlling alcohol use and abuse among minors. Gabree v. King, 614 F.2d 1 (1st Cir.,1980); Olitsky v. O’Malley, 597 F.2d 295 (1st Cir.,1979). Moreover, it has been statistically established that “youths aged 17 to 21 were found to be overrepresented among those killed or injured in traffic accidents and that there was a pervasiveness of youthful participation in motor vehicle accidents following the drinking of alcohol.” Craig v. Boren, supra, 429 U.S. at 199-202, 97 S.Ct. at 458-9. Therefore, since operating a vehicle on state roads is not a fundamental right but a privilege, and preventing operation of vehicles by drivers under the influence promotes public safety, a rational basis may be found between underage drinking and traffic safety.
Next, defendant argues that the statute as applied to his individual case violates the due process clause because an enhanced grading penalty was imposed upon defendant without notice thereof. Defendant cites Commonwealth v. Campbell, 273 Pa. Super. 407, 417 A.2d 712 (1980), to support his proposition that, since defendant’s citation for underage drinking failed to note any prior convictions, defendant was not placed on notice that he was subject to an enhanced grading statute. However, Campbell is clearly inapposite to the present case and, therefore, requires little discussion. In Campbell, the Superior Court merely established that a court may not impose an enlarged sentence under a recidivist statute if the indictment or bill of information does not contain allegations of prior convictions. Campbell, supra, 273 Pa. Super. at 409, 417 A.2d at 713. Clearly, Campbell deals with a penalty imposed within the criminal justice system and not a civil punishment. Moreover, it would be absurd to require a police officer to check a minor’s juvenile record every time he must give a citation for underage drinking. Finally, defendant should have addressed his conviction for underage drinking within the criminal appeals process rather than collaterally attacking his license suspension.
Lastly defendant argues that Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed. 2d 169 (1980), applies to the instant case. In Baldasar, the Supreme Court held that a prior uncounseled conviction could not be used as a prior conviction for purposes of enhanced grading under a recidivist statute. However, the key legal issue presented in
We therefore enter the following
ORDER
And now, February 13, 1990, the license suspension appeal of the defendant, Michael David Hefner, is hereby denied and dismissed.
Title 18 Pa.C.S. §6308 states that “a person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses . . . any liquor or malt or brewed beverages. . .” Moreover, 18 Pa.C.S. §6308(b) states that a penalty pursuant to 18 Pa.C.S. §6310.4 will be imposed for a violation of the aforementioned section.