517 A.2d 1324 | Pa. Super. Ct. | 1986
Appellant was convicted of driving while intoxicated and of driving while under suspension. He contends that the trial court erred by dismissing his omnibus pre-trial motion, that 75 Pa.C.S.A. § 3731 is unconstitutional, that the court erred in failing to compel appellant’s admission into accelerated rehabilitative disposition (ARD), and that the evidence was insufficient to sustain his conviction for driving while under suspension. The judgment of sentence is affirmed.
Appellant was arrested in the early morning hours of December 10, 1983 when police observed him erratically operating an automobile through Brookhaven Borough in Delaware County. At the time of his arrest, appellant could not produce a driver’s license or registration card. He identified himself as Pat Ryan, a name he later claimed to be his wife’s. He refused to submit to a breathalyzer test, and when informed that the refusal would lead to a twelve-month suspension of his driver’s license, boasted that he had been driving without a license for 10 years.
On March 6, 1984, appellant appeared at his arraignment and pleaded not guilty to driving while intoxicated, driving while under suspension and reckless driving. Pre-trial motions were filed on May 10, 1984, seeking to compel ARD, to vacate a license suspension imposed under 75 Pa.C.S.A. § 1547, to suppress the statement made when appellant was arrested, and challenging the constitutionality of the ARD rules, Pa.R.Crim.P., Rules 175-185 and of 75 Pa.C.S.A. § 3731. The court dismissed the pre-trial motions on the ground that they were not timely filed. In its post-verdict opinion, the trial court reached the merits of two questions, upholding the constitutionality of § 3731 and holding that the District Attorney has sole discretion to determine placement in ARD.
It is well-settled that issues which are not timely raised in the trial court are foreclosed for purposes of appellate review, Commonwealth v. Griffin, 271 Pa.Super. 228, 236, 412 A.2d 897 (1980). Rule 307 of the Pennsylvania Rules of Criminal Procedure requires pre-trial motions to be
Appellant contends that the mandatory sentencing provisions violate equal protection, since individuals who are not included in the ARD program are subject to a mandatory sentence, while those who are included in ARD are exempt from such a sentence. This argument overlooks the simple notion that only individuals who have been convicted of driving while intoxicated are subject to the mandatory penalty. Since those who have been placed in ARD have not been convicted of this offense, see Commonwealth v. Knepp, 307 Pa.Super. 535, 541, 453 A.2d 1016 (1982), the predicate for imposing the penalty has not been established. Appellant is thus not entitled to equal protection relief, since by virtue of the fact that he was convicted
Nor can we accept the somewhat related contention that the mandatory sentence punishes an individual’s exercise of his right to trial. The crux of appellant’s argument in this respect is that the greater likelihood of a favorable result encourages a defendant to accept ARD rather than risk conviction at trial. Whatever substance this claim might have,
Appellant also contends that the evidence is insufficient to sustain the guilty verdict of driving while under suspension, 75 Pa.C.S.A. § 1543. Appellant’s driver’s license was suspended indefinitely in April, 1973 under 75 P.S. §§ 1413-14, which authorized suspension for failure to pay a judgment.
The driving while under suspension prohibition, 75 Pa.C.S.A. § 1543(a) authorizes conviction of “any person
Appellant also contends that the original suspension is a nullity because the statute on which it is based is unconstitutional and has been repealed. However, statutes suspending licenses for failure to pay judgments have been upheld as reasonable exercises of the police power. See Kestler v. Utah Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (1962); Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941). Cf. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (suspension of a driver’s license for failure to pay money judgment vacated on procedural due process grounds). Moreover, the subsequent repeal or amendment of a statute extinguishes no rights or liabilities which accrued while the statute was in full force, Albert Einstein Medical Center v. Pennsylvania Labor Relations Board, 17 Pa.Cmwlth. 91, 96-97, 330 A.2d 264 (1975); Rebel v. Standard Sanitary Manufacturing Co., 340 Pa. 313, 318-19, 16 A.2d 534 (1941). Assuming that the recodification of this statute constitutes a repeal, see n. 2 supra, it would have no effect on this suspension, which occurred while the statute was fully effective.
Judgment of sentence affirmed.
. Cf. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (constitution prohibits trial court from considering defendant’s decision to stand trial as aggravating factor in imposing sentence).
. The authorization for indefinite suspension of an operating privilege for failing to pay judgments is now codified at 75 Pa.C.S.A. §§ 1772-73.