HomeMy WebLinkAbout98-00135
GARY, LVSAGHT
" ATTo/iNev AT LAW"
lift(! Fl8HIN,G CReeK VAWY AOAII
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~..IIFICATE OF SERVICE
I, Matthew J. Zeigler, hereby certify that on the -I t\..- day of
_UUCUJO.!'(
, 1998, I served a copy of the foregoing document by
depositing such into thE! custody of the United States postal Service, by certified
mail, postage pre-.pald, addressed as follows:
pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, Pa. 17104
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OLMSTEAD v. COM.. 1lt:1"1'. (W TRANSI'.
ell.... 677 A.Jd un (PI,l'mwllh, I""
I'a, 1285
!",/icy i.
",dividllal
, might be
lriaes dur-
IIlng over
" Careful
hese sltua-
inctlon be-
policy Vel'.
! client Is
hel'llelf to
four yeai'll Is too dlmcull, espccially with
math coursea. However, Mr, Murdy Is not
entitled to an exception to the pollc,v mcrely
because the degl'ee program In which he WI'"
enrolled was academically demanding. Thll
Bureau detennlned Ihat the facta do 1101
Justify continued sponsol'llhlp of Mr, Murdy's
academic career. This decision ia .upported
bv substantial evidence alld we do not belie,,'
lhal we should substitute our Judgment fo,'
lhal of Ihe Bureau,
Having reviewed each of MI', Murdy's Ill'.
gumenls, we are com(l<'lIed to affilm lIw
order of the Office of Heariogs and Appeals
denying Mr. Murdy's request fo,' contlnuh'l(
funding from the Bureau.
I,hasls add-
a "blanket
Id the pre.
legree. It
Individual
'ute health
xceptlnn to
,pie of the
lcounter In
of funding.
,tlon is not
oxlble l\8 to
'e the Issue,
d pass the
Is whether
I1l1rdy, h...
t It amounls
I' 45 C,F.R.
ORDER
AND NOW, this 30th day of May, 1900,
the order of the Office of Hearings alld Ap-
peals ef the Department ef Welfare, dated
Februal'y 14, 1995 Is hereb.v amrmed.
o 'uY MUItI'U $'1lIlM
David James OLMSTF;,\D, Appellant,
v,
\lurdy's reo
hat his ck-
led sponsor-
" claims he
'ipment, his
is and text-
h did not, In
, the level of
'.er, he pre.
these prob-
, ,'eoulted In
In fact, Mr.
vel' failed or
Iment prob-
COMMONWEALTH of Pcnnsylvanla, DE-
PARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING.
Commonwealtb Court of Pennsylvania,
Submitted Mal'oh 29, 1996,
Decided May 31, 199f1,
"eargument Denied July lR, 10!HI.
Driver appealed order of the COUl'l of
Common Pie..., Bradford County, No. \15 D('
000360, Smith, President Judge, that upheld
one.year suepen.lon ef hi. driving privilege
by the Departmenl ef TranspOl'tallon (DOT),
b..ed on New York convicllon fOI' driving
while ability Impaired (OW AI). The Com-
monwealth Court, No, 3251 C.D. 11195, Lord,
&nlor Judge, beld that New York OW AI
\II'. Murdy's
e the degree
>\lriod Is that
credits over
offenae I, not auh.tanllally similar to Penn-
llylvanla offense of "drivlnj( ullller the Innu-
encn" CDtll), for purpose of ,'edlll'ooal driv-
or's IIcemu! Huspenslon~ under' the DriVel'
Llcensn ('ompllel of 1001.
Revorsed,
I. Automobiles *"IH,2(al
Scope of review of commun ploas court
decl.lon In drivel". license suspeosloll appeal
iR limited te delonnlnatlon whether fiudlng,
of fact are supportud by suhMantlal evidence,
1111 error of law was commit.ted, 01' court
IIhused Its dlscrellon,
2. Automobllea <1.=14U(3)
New York offen,e of "driving while ahlll-
ty Impaired" (DW AI) Is net suhstantlally
,Imllllr to Pennsylvania offe,,"e of "driving
under the innuence" (DUll, for purl",ae of
reelprocal (iI'lver's lIeellAe suspension. under
Ihe DriveI' License Compact of 11ltH; In New
York, ImpalMllent by aleohol of lIblllly to
operate motor vehicle to any extent will sup-
port conviction for OW AI, \\'hlle Pennsylva-
nia has no e",onllally ,imllar offense.
N,Y.McKlnne,v's Vehicle and Traffic Law
~ 1102, subd. 1; 75 Pa.e,S.A. II 15:l2(b)(3l,
:1731.
~
,
Daniel J, Ban'ell. for Appellant.
Timothy P. WIIll, AssIstnnt Counsel In-
Cbarge, and Hal'oill H. Cl'amer, Mslstant
Chief Coun,el, for Appellne.
Before COLINS, PreRldent Judj(e,
PELLEGRINI. J" and LORD, Senior
Judge.
LORD, Senior .Judge.
David Jame, Olmstead appeals an order of
the [J,'adforrl Counly Court of Celllmon Pleas
that dismissed his appeal and upheld thl' one..
yellr ",\Spenslon of his driving privilege by
the Departmenl of Tranaportallon, Bureau of
Driver' Licensing <DOT).
On June 29, 1995, Olm,tead was convieted
In the SMe of New York of the offense of
Driving while ablllly Impaked, a violation of
N.Y. Vohlcle & Trame Law, Article 31,
~ 11 !120), Pursuant to the Driver License
1286 Pa.
677 ATI..ASTIe IU;I'I.IKTER, 2d SERIES
Compact of 1\Jf1l (CumpaCI},1 7\1'\\ YIII'k I'e'
["lfted Ita cunviction of Olmaload I') lhe Com-
monw"alth of Ponm.ylvlInla. hb home alato,
lIy leiteI' dated Aug""t !I, \!I!l:" DOT thcn
informed Olm!ltlHut U.R followtl,
As " I'c!lult flf the Department r't~{'{]j\'lng
nutlneation rl'om NEW YOltK "r your con,
vil'lIon on IMW'J/Il~Ir, of IlItlVISIl tiN-
DEll INFl.lmNClc!'1 on 06l04!I !l\)r"
which la eqllivah.nl to S"ction anI or thll
I'a. Vehicle ClKle. your d,'lving privllllgc ia
heing SlISPF:NDlm ror a period or I
YF:AIl(S), aa mandated hy r;"ction 15.1211
or the Vehlele Code,
(Footnote added),
Seetion 15:]2(b)(3) of lbc Code, 75 l'a,C,S.
* 1532(h)(3) arforda thaI "Itibc dep.,t","",
.hall auapend Ihe operallng privilege "I' any
driver for 12 months upon receiving a ('el'ti.
fled record of the driver's COn\1ction nt' ~('('.
lion 37311 'I (rolating lu driving undel' Innu.
ence of alcohol or controlled :mbstanr€'l, ,.
Wootnole added),
(1,21 Olmatead appealed hla one-year
.uapenalon 10 Ihe common plea. c"urt, which
upheld it. He Ihen petilioned thl. Courl for
review, ralalng theae laaue" I) whether the
New Yurk offen.e of "DI'iving while ahlllty
Impaired" (llW AI) ia auhalantlally .Imlla,' to
the orfenae In Pennaylvania or "Driving un-
der the Innuence" (DUI) ror purp".ea of
reciprocal slIspenfiions under the Cmnpactj
and 2) when deciding if a New York orfenae
la auhatantially .Imitar 10 the Penn.)'lvanla
offense of OUI, must the court reeognlze thl'
distinction hetween New York'. "Driving
while intoxicated" COWl) and DWAI 'Iat-
utea.'
We will hegln by comparing New York'.
OWAI statule wilh our own DUI .tatUle,
New York's DWAlatatute provides:
I, Nelthcr puny raises the quc~lion of tilt' IC.!lillit..
ot' the Compa!;!.
2. The certified n:l,.'urd Pl'(J\'l;'S thul OIIl1!\ICild wa..
convicwd In New York of the ~pcdfh: offl!mc ot
"Driving while abilit~, Impaired," Wt' Cillllloll
DOT II) be mol'C prccl~t when infonnilll!l " lkcn-
'ee wh)' his or her driving privilc~c Is being
!luspendcd or rcvnkt'd,
.3. Scc!lon .\7J I ut' the Code, B Pa,C.S, !:i .lH I.
~ 1192. Operallng a mnlor ,'.hlcl.
while under the Innuence of alcohol or
druK'
t. Driving whllc ability impalft'd, No
p",'."n .hull "perale a motllr vehicle whll"
the pcnuJ1\'s Ilbility to operate Hueh motor
vtlhiele 11-\ impairerl hy the cnmmmptlon of
alcohol.
Accol'ding to Penn!oiylvunlu's nUl HlntUl.e:
~ :l7a1. IJrlvlng under innuence of al.
cohol or controlled .uhstance
lal orr.nse deOned,.A "enlOn ahull not
drive, o"el'ale 0" he In actual "hyalcal Con,
trol of the ffiOVflmenl of any vehicle:
(\ I while under Ihe innuence of alcohol
to u deK'rec which rendl!r~ the per~on In-
cUI1uble of ~afe driving;
3. Driving whl
ahall operate a
intoxicated cond;
The Court or A
explained that DI'
oft'enae of OWl.
N.Y,2d 6H2, 435 :
10:13 (\981). In J
419,423 N.Y.S,2d L
Ol'l",al dismissed.
1825, 64 L. Ed.2d
Appeal. elucidate"
whcn a driver is m
or is intoxieated.
(4) while the IImount or alcnhol hy
weight In Ihe hlood of the I>c,'son Is O.11Ylo
01' gl'entl~r '
Olmatead argue. thaI, in New York, Im-
pairment to any cxtenl will sUPJlOrt a convlc-
lion ror DWAI and Penn.ylvanla ha. no c.-
.entilllly .imUar offenae, He Il8sertn that,
inatead, Pennaylvania'. DUI .talute I. sub-
stantially akin to New Y o,'k'. OWl .tatule,
which arfords:
* 11 92. Operating a molor vehicle
while nnder the innuence of alcohol or
drugs
In CritZ, the C,
respect Ii' N.Y. Vcl
de al. * 11\12(\), "
Is whether, by vollll
Ihl. particular del'
paired, to any e"le,
tal ahillties which h,
ordcr to operate a
and prudent driVel
628,399 N.E.2d at
AB to intoxiealion, f,
a or * 11\12, the Co
greater degree OJ
reached when the d
sumed alcohol 10 th,
ble of employing ,
abUilies which he I
o,der to operate a
and prudenl driver
629, 3!l9 N.E.2d at 5
N.Y. Vehicle &
I 1190(2)(.) provid,
level of more than .
.hall constitute prit:
person'. ability to '
was impaired by ai<
statute alao provid
weight of alcohol II
prima facie evidenc.
Intoxicated,
While, admittedly,
need not have a blo
hefore he or she COl
2, Drll'lng while intoxlcaled; IlOl' sc. No
"eraon shall operate a moto!' vehicle while
.uch ""r.on hila .10 of one per centum or
more hy wcight of alcohol In the IlOrson's
hlood as shown by chemical analysis of
such per.on's blood, hrealh. urine or saliva,
mado 111II'suant to Ihe provialon. or seclion
eleven hundred ninety.four of thl. article,
4. Our 'i(ope of n'vicw of il comn1on picas court
dc(biull in .. \lCt'IISt! sU'lpcl1~ion appt'ul i$ Iimllcd
to it dctermlnution of whclhcr findings o{ fact are
supported hy suh..lurllial evidence. an error of
hlW was t'ommlllcd, or tht' r:ullrl uoused liS dts-
(:n~ti[JlI_ DcP/"t"lt'tlt o{ l'nHl_Ifwrtc/(IOll, HurClIl1 af
Dr/wI' UCtJ"_~i,,g \', PellmetlL 108 Ila.C'mwhh,
172, 521\ IUd IOl}(J (ICJ87),
5, Noll': We quole he
OLMSTEAD ". COM., DEI'T. m' TRANS/'.
elltl.617 A.Jd IU' (Pa.Crnwlth, 1996)
a. Driving while Intoxicated. No p<,rson In ord",' to support a com;ctlon where there
shall operate a motor vehicle while in an is no evidence 10 this effect, DOT muxt prove
intoxicated condition, that the driver, olll'I'ator or person in actual
phyxical control of the motor vehicle wax
influenced hy alcohol to a degree that he or
she eould nol drive xafely. See CO"'"IOIt,
wealth t'. 111/.....,. 4a7 Pa. Superior Ct. f.02,
!If,o A.2d 4/18 (lOW I fOI' DOT'. burden of
proof lInd',.. Section 37:11la)(1 I of the Code.
Certainly, .eetion :17allaill) cannot reason.
ably be interpreted to denne DUI ax any
alcohol-related impalrmenl, no malte.' how
minor, where that Impairment doe. nol affect
a person'x ability to be a ,afe drive.'.
,tor vehicle
IIf alcohol or
IpalreO. No
vehicle while
e such motor
.nxumptlon of
The Court of Appeal, of New York hns
explained thaI DW AI Ix a lesxcr ineluded
offense of DWI. SlJe People I', Hoog. 51
N.Y.2d fia2, 435 N.Y.S.2d fi98, 41/1 N.K2d
Io&~ (1981). In People v. Crill, 48 N.Y.2d
419, 42a N.Y.S.2d 025, a9<J N.E.2d 513 (1{1791,
01>"'01 di.,mi.,sed, 440 U.S. 001, 100 RCt.
1825, &\ L.F;d.2d 2M (1{180), the Court of
Appeals elucidated the distinction between
when a driver Is merely Impaired by alcohol
or Is Intoxicated.
I slatute:
UOIICO of 01.
e
'son shall Ilot
Ilhyslcal COil.
.,hlcle:
co of alcohol
Ie person In-
In Critz, the COUl'l explained that, with
respect to N.Y. Vehicle & Tl'l\fOc Law, Arti.
cie 31, * 1192(1), "Ihe queslion In each clISe
is whethe.. by volunlarlly consuming alcohol,
this particular defendanl has actually im,
paired, to allY exten~ the physical and men.
tal .bUlUes which he is expected to posse.s In
order 10 operate a vehicle as a reasonable
aJtd prudent drivOl'." Jd., 423 N.Y.S.2d at
628, 3lJll N.E.2d at 5W. (Emphasis addedl.
As to Inloxication, for purposes of suhdiv!.ion
3 of * 1192, Ihe Court explained that It "is a
greater degree of impabmenl whleh is
reached when the driver has voluntarily con.
sumed alcohol to the extent that he is incapa.
ble of employing the rhyaical and mental
abilities which he is expected to possess in
order to operate a l/ehiele a~ a reasonable
and prudent driver." lei., 423 N.Y.S.2d at
629,39{1 N.E.2d at 517.
N.Y. Vehicle & Traffic Law, Article 31,
I 1195(2)(c) provides that a blood alcohol
le',el of more than .07% but les. than .10%
shall eonstltute prima facie evidence that a
person's ability to operate a motor vehicle
was Impaired by alcohol consumption. The
statute also provide. thai this range of
welghl of alcohol in tbe blood amounts 10
prima facie evidencc thai a person wa. not
Intoxicated.
While, admittedly, In Pennsylvania a driver
need not have a blood alcohol level of .1O~f
before he or she could be convicted of DlIl,
alcohol by
'son Is 0.10%
IV York, 1m-
lort a convic-
a has no eg.
,lSserts that,
ltute ia sub-
JWl statute,
,.or vohlcle
r alcohol or
per se. No
'ehlcle while
I' centum or
the person's
analysis of
I ne or saliva.
" of section
this article.
1\ picas cour1
ll'al is Ilmilcd
19~ of fact are
all error of
huscd hs dls.
WI, Bureol/o"
I Pa,Cmwlth,
5. Note: We quote here from the Driver License
Pa. 1287
A'i the trial court recognized, our Supreme
COUrt In Commrn/w(!atth I.'. H(H'tI, 3115 Po.
585, 150 A.2d 872 (1(150) and again in Com.
mnn/l't'nlth [l, Gri,'j(,(H'(l{I!', S12 Pa. 540, 51.7
A,2d 12fJ1l (198fj) said thaI the state of being
"undel' the ir,nuence" Includes, not only all
Ihe ohvious condilions and dogrees of Intoxi.
cation, but sub."'nUallmpalrment by alcohol
of the abilities e..entlal to operaUng an auto.
mobile safely. Further, the Supreme Court
cxplained In Gri"col'oge that "substantial im-
pairment, in this context. means a diminution
or enfecblement in Ihe abIlity to exercise
Judgment, to deliberate or to react prudently
to changing elrcumstances and conditions,
Its meaning Is not Umlted to some extreme
condition of disability." ld.. 512 Pa. at 545,
517 A,2d at 1258.
Whal the lrial court in the matler ~ltb
iudiee failed to note. howevel', is that sub.
'stanUal impainnent Is not of course any 1m-
plllrmenl, aJtd to this extenl our DUI offense
differs greatly from New York's DWAI of.
fense, which punishes mucb Ie.. egregious
conduct behind the wheel.
Article IV of the Compact affords In r~le.
vant part: ~
EFFECT OF CONVICl'ION-
(1) The licensing aUlhority In Ihe home
stato, for the purposes of suspension, revo-
calion, 01' limitation of the license to oper.
ate a motor vehlde, shall give the same
effect to the conduct reported, pursuant to
~
CompaCI, Adminl!urativc Procedures Manual
\
I
I ,
I
I
,
1288 P~,
677 ATLANTIC REPORTER, 2d SERn:S
Article 11I,1'1 us It would if such conduct
had occurred In the home state, in the c..e
of conviction. for:
(b) Driving a motor "hlcle while under
the influencc of alcoholic beverages or "
narcotic to a degree "hich rende.. lhe
driver Incapable of .afely driving a motor
vehicle;
(2) Ai. to ethor oonvlctlons, reported pur-
suant w Article III, the licensing aulhority
in the home 'tate ,hull give such effect to
the conduel as I, provided hy the laws of
the home state,
(Footnote added),
Beeau,e New York did not rep0l1 that
Olm.tead had driven while under the influ.
ence of alcohol to a degree that he wag
Incapable of driving .afely, DOT oould not
under Article IV(\)(b) of the Compacl 'UB'
pend his IIcen.e .. if he had been oonvicted
here of Bueh conduct under Scotian 373\ of
the Code, l'urther, a perBon whe Buffe...
from any alcohol.related impairment while
driving, operaling or being In sctual phy,lcal
control of a molol' vehicle will ,uffer no con.
.equenceB under Ihe law of oUI' Cemmon-
wealth If he or she IB BtIll capable of being"
prudonl or Bafe drivel' In any c...e, There.
fore, Article IV(2) alBo cannot jUBtify II 'us-
penBlon of OlmBtead'B license under ;cotion
3731.
Because we agre~ with 0lm8toad that a
DWAI offenae in New York i, not subatan-
tIal1y s\mllar to a OUI offense In Penn,ylva-
nia, we reveree the order of lhe lrial court.
ORDER
AND NOW, thia 31et day of May, 1!I9I1,
the order of the Court of Common Pic.. of
Bradford Counly, No. 95 DL 000360. daled
November \, i995, is hereby reve...ed.
o lilT fiU"'U~ S~511M
IQ90 provided 10 U!lo In \he certlncd record,
6. Anlcle 111 utlhc Compact COl\l~crns reports of
conviction from the licensing iluthorlty of a pal ty
Oretchen n:NKINS, I'elllloner
",
WORK:t1EN'S COMPENSATlOS AP.
PEAL \lOARO IWOODVILLE STATE
HOSPITALI, Respondent.
Commonwealth Court of Pennsylvania,
Submllted April 4, \996,
Decided June 7, 199ft
Ileargumenl Denied July lR, 1996.
Claimant petitioned for review of Work.
men'8 Compensation Appeal Board order,
No,AlJ.I-2:J45, lIffirming Workers' Compensa.
tion .Judge's decision, granting her employ.
er's termination petition, The Common,
wealth Court, No. 2681 C,O, 1995. Rodge..,
Senior Judge. held that: (\) termination was
supported by doelor'. lestilnonl'; (2) superse.
deaa hell ring IV"" not constitutionally infirm;
and (3) worknrs compenAAtion judge properly
adopted employer'. Bugge,ted finding' and
conclusion.
Affimwd,
Flaherty. .r" med (li..entin~ opinion.
I. Worke...' Compensation ~2030
Worl,ers' compensation judge', finding,
on emploYOl"e tenninatlon petition, lhal
claimant had completely recovered from her
work injury and auffered no residual dleabill,
ty wa' ,upported by doctor's testimony, even
though that te.timony courd have been inler.
preted a8 suggestinl( residual disability.
2. Worke...' Con,pene.tlon ~1910, 1939.1,
1939.4(4)
Commonweuith court'ft !\cope of review
in worke..' rompen.alion appeal is limited to
determining whether error of law WM com.
~tatc 10 the IkclI'ilng ;:luthnrilY of the home ~talC
of the lIeemer,
\
mitted, eonstlt
whelher nece'
ported by sub.
~ 7114.
3. Worken' C
Employet"
must prove
claimant'. disa
no longer resui
4, Worken' C.
W orkel'll' c
flnder of fact.
5. Worken' C.
Queetlons
evidence al'e '
compensation j'
reject te,timon:
In part.
6, Worker.' Co
Que,tione
toms are factuu
faet flnder In '
7, Worken'
1939.6
Commonwe
credibility detet
pen.atlon ca8e,
bMed on SUbSWI
8, Worken' Cm
Medical opi:
abnormalities to
jeetlve eymptom
clalmant has eOI
return w work,
mlnation of worl
9, Worke....' Con
Fact tinder I
cian'e testimony!
ny of doetor elll
compensation cia I
tion,
10. Worke..' Cm
Difference 01
pensatlon judge'.
I. Employer had
petition In 1991,
Compact (Compact).
4, New York reported to Pennsylvania that Mr. D\)tson was convicted on November 13,
1997, of the offense of Driving While Ability Impaired (OW AI) which occurred on September
25,1997,
5. In Olmstead v. Commw. ofpa., Dept. 4Trans.. BDL, 677 A.2d 1285 (Pa. Cmwlth.
Ct. 1996), app, granted, 546 I'll. 698, 687 A.2d 380 (1997) the Commonwelllth Court sustained a
lower court decision which sustained the petitioner's appeal of a suspension pursuant to the
Driver's License Compact finding that New York's Driving While Ability Impaired (OW AI) is
not substllntially similar to Pennsylvania's Driving Under the Intluenee (DUI).
6. The undersigned counsel requested a continuance to allow the Supreme Court to
decide Olmstead.
7. The malter was l~ontin\led pending the Supreme Court's decision in Olmstead.
8. The Supreme Court by a per curiam Order affinned the Commonwealth Court's order
in Olmstead on the basis of Sullivan and did not address whether New York's OW AI statute is
substantially similar to Pennsylvania's DUI statute. Olmstead v. Commll'. of Pa.. Dept. of Trans..
BDL, 677 A,2d 1285 (Pa. Cmwlth 1996), affinned, _ Pa. _,707 A.2d 1144 (1998).
9. This matter is not a Sullivan type case because in this malter the date ofviolatlon
(9/25/97) and the date of conviction (11/13/97) are both after the enactment of Driver's License
Compllct (12/1 0/97),
10. Subsequent to the Olmstead decision, the Commonwelllth Court issued opinions in
Petrovick v. Commw. ofPa.. Dept. of Trans.. BDL, (Cmwlth. Ct., No. 3547 C.D. 1997. Filed
June 9,1998) and Frantz 1'. Commw. afPa., Dept. of Trans.. BDL, (Cmwlth, Ct" No. 3545 C,O,
1997. Filed June 9, 1998) whereby the Commonwealth Court lIffirmed the lower courts' orders
....--'-".
NEW YORK of your conviction on 8/22/97 of an offense
which occurred on 5/17/97, which is equivalent to a
violation of Section 3731 of the Pa, Vehicle Code,
DRIVING UNDER INFLUENCE, your driving privilege
is being SUSPENDED for a period of 1 YEAR(S), as
mandated by Section 15328 of tile Vehicle Code,
Section 1581 of the Vehicle Code, 75 Pa. C.S. ~1581 sets forth the
provisions of ~~ Driver's License Compact of 1961 (Compact). Article III of the
Compact {RepOrts of Conviction] states in part that "[t]be licensing authority of a
party state shall report each conviction of a person from another party state
occurring within its jurisdiction to the licensing authority of the home state of tbe
licensee." Article IV of the Compact [Effect of Conviction] partially sets forth:
(a) The licensing authority in the home state, for the
purposes of suspension, revocation or Iimita'tion of the
license to operate a molor vehicle, shall give the same
effect to the conduct reported, pursuant to Article m of
this compact, as it would if such conduct had occurred in
the home state in the case of convictions for:
(2) driving a motor vehicle while under the
influence of intoxicating liquor or a narcotic drug or
under the influence of any other drug to a degree which
renders the driver incapable of safely driving a motor
vehicle.. ..
(c) If the laws of a party state do not provide for
offenses or violations denominated or described in
precisely the words employed in subdivision (a) of this
article, sucb party state shall <:onstrue the denominations
and descriptions appearing in subdivision (3) of this
article as being applicable to and identifying those
offenses or violations of a substantially similar [lature
and the laws .0f such party state shall contain such
2
---- .-- ..
provisions as may be necessary to ensure that full force
and effect is given to this article,
,.
(Emphasis added).
In sustaining Frantz's statutory appeal, the common pleas court relied
on the rule oflaw enunciated in Olmstead v. Department of TnUlsportation, Bureau
of Driving Licen.sing, 677 A.2d 1285 (pa. Cmwlth. 1996), affinned ~ curiam
(No. 0006 M,D. Appeal Docket 1997, filed April 23, 1998), which states that a
license suspension cannot be imposed by tbe Depar1rnent for a conviction of the
offense of driving while impaired within the State of New York. Olmstead, like
this case, involved a violation by a Pe,nnsylvania resident of New York's DW AI
stat\lte~ which is a lesser included offense of New York's DWl statute. In
Olmstead, this Court reversed the trial court's decision to uphold the imposition of
a licensee's one-year license suspension, since we concluded that violations of
New York's DWAJ statute and Pennsylvania's DUl statute are not substantially
similar offenses. We so concluded because New York's DW AJ' statute, which
punishes any alcohol-related impairment in driving a motor vehicle, has no
equivalent in the laws of this Commonwealth.
On appeal, the Supreme Court affinned the reversal of the
Department's suspension based, however, on its decision in Sullivan v. D~ILartment
of Transportation. Bureau of Driver Licensing, _ Pa. --' ___ A.2d --' (No.
0023 W.D. Appeal Docket 1997 filed February 26, 1998) and expressly without
regard to the issue of whether the New York DW AI statute is substantially similar
to Pennsylvania's DUl statute.
~ .
3
NEW YORK of your conviction on 3/12/9'1 of an offense
which occurred on 12/13/97, which is equivalent to a
violation of Section 3731 of the Pa. Vehicle Code,
DRIVING UNDER INFLUENCE, your driYing privilege
is being SUSPENDED for a period of 1 YEAR(S), as
mandated by Section 15328 of the Vehicle Code.
Section 1581 of the Vehicle Code, 75 Pa. C.S, ~1581 sets forth the
provisions ofthe)mver's License Compact of 1961 (Compact), . Article III of the
Compact [Reports of Conviction] states in part that U[t]he licensing authority of a
party state shall report each conviction of a person from another party state
occurring within its jurisdiction to the licensing authority of the home state of the
licensee." Article IV of the Compact [Effect of Conviction] partially sets forth:
(a) The licensing authority in the home state, for the
purposes of suspension, revocation or limitation of the
license to operate a motor vehicle, shall give the same
effect to the conduct reported, pursuant to Article m of
this compact, as it would if such conduct had occlUTed in
the home state in the case of convictions for:
(2) driving a motor vehicle while under the
influence of intoxicating liquor or a narcotic drug or
under the influence of any other drug to a degree which
renders the driver incapable of safely driving a motor
vehicle,.. ,
(c) If the laws of a party state do not provide for
offenses or violations denominated or described in
precisely the words employed in subdivision (a) of this
article, such party state shall construe the denominations
and descriptions appearing in subdivision (a) of this
article as being applicable to and identifying those
offenses or violations of a substantiallv simila.r nature
and the laws qf, such party state shall contain such
2
5. In Olmstead v. COlli /11I1'. of 'Po. , Dept. f!(7hm.I.. BDL, 677 A.2d 1285 (Pu, Cl11wlth. Ct.
1996), upp, granted, 546 Pu. 698, 687 A.2d 380 (1997) the cOUl1 sustuincd thc petitioner's uppeal
ofa suspension pursuant to the Driver's Liccnse Compact finding thut New York's Driving while
Impaired (DW AI) is nol substantially similar to Pennsylvania's Driving while (ntoxicuted (DUI),
Copy attached.
6. The undersigned counsel requested u continuance to allow the SUprel111l Court to
decide Olmslead,
7. The matter was continued pending the Supreme Court's decision in OIl11stead.
8. The Supreme Court by u per curium Order affirmcd the COn1monwculth Court's order
in Olmstead on the basis of Sulli\,(/I/ and did not address whether New York's DW AI statutc is
substantially simi1ur to Pennsylvania's DUI statute. Olmstead I'. COIIIIIIlI'. o/Pa" Dept, of'Tl'a/l.\'.,
BDL, 677 A.2d 1285 (Pa. Cmwlth 1996), affirmed, _ Pa, _. 707 A.2d 1144 (1998). See attuehed,
9, This mlltter is not a Sullival/ type cuse because in this matter the date of violation
(9/25/97) and the date of conviction (11/13/97) arc both after the enactment of Driver's License
Compact (12/10/97),
10. The motorist's operating privilege has been rcstored pending appeal pursuant to
Section 1550 of the Vehicle Code,
11. The undersigned counsel contacted Gary Lysaght, Esquire, attorney for the petitioner,
and Ml'. Lysaght indicated he has no objection to the scheduling of this matter for hearing.
WHEREFORE, the Department respectfully requests that its Motion to Schedule Matter
for Hearing be granted and that the matter be scheduled for hearing,
'~.
JAN 1 8 2000~
JOSEPH WAYNE DOTSON,
PETITIONER
IN THE COURT or COMMON PLEAS
CUMBERLAND COUNTY,
PENNS YL VANIA
v,
l~\I. 7o..~1-1 Jj
COMMONWEALTH OF PENNSYLVANIA,:
D.EP ARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
9B"'IJ/~ e/~'// rue""
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this I ~ day of _-:J" ~___, 2000, upon motion by the
Department of Transportation to Remand and Rescind the suspension which is the su~ject of this
appeal, it is Ordered that the driver's license suspension appeal in the above referenced appeal
which was imposed by the Department pursuant to the Driver's License Compact which was
based upon a report of conviction from New York ofa violation of New York Veh, & Traf. Law
~ 1192(1) (relating to driving while ability impaired) (DW AI) that was continued pending the
Supreme Court's rtlview of Pe/rovick 1'. Commw, o/Pa" Dept. o{7i'a/1s, BDL, 713 A.2d 176 (Pa,
Cmwlth. 1998) and Fra/1tz v. Commw. o/Pa., Dept. Q/Tm/1,\'. BDL, 713 A.2d 174 (Pa, Cmwhh
1998), be REMANDED to the Department and the SUSPENSION which is the basis of the
appeal be RESCINDED because the Supreme Court in Pet/'Ol'ick, F/,{//1tz, & E'ck v. Commw. 0/
Pa" Dept, a/Trans. BDL. Nos. 173,174 & 37 AD 1998, decided on December 13, 1999, that
New York Veh. & Traf. Law ~ 1192(1) (relating to driving whill' ability impaired) (DWAI) was
not substantially similar for purposes of Article IV(a)(2) the Drivcr's License Compact.
,~
if
, Mkl
~:OO
~J(g
Distribution:
George H, Kabusk, Esquire, Riverfront Office Center, 110 I South Front Street, Harrisburg, P A
17104-25 I 6
Gary Lysaght, Esquire, 1350 Fishing Creek Valley Road, Harrisburg, Pa 17112
J.
}f,~
"IV!'
related to Driving Under the Influence, and suspended the petitioner's operating privilege
pursuant to the Driver's License Compact.
4. A hearing in the matter was scheduled for February 9, 1998, at 8:30 a.m. in Courtroom
number 5.
5. The matter was continued pending the appeal of Pet/'ovick v. Commw. ofPa.. Dept. of
Trans. BDL, 713 A.2d 176 (Pa. Cmwlth. 1998) and Frantz \" Coml/lw. ofPa.. Dept. of Trans.
BDL, 713 A.2d 174 (Pa. Cmwlth 1998).
6. The Commonwealth Court in Pet/'ovlck v. COI/II/III'. ofPa., Dept. ofrrans, BDL, 713 A,2d
176 (Pa. Cmwlth. 1998) and Frantz v. Commw. ofPa., Dept, o(Trans. BDL, 713 A,2d 174 (Pa,
Cmwlth 1998) held that the Department did not have authority to suspend a driver's license
based on an out.ot:state conviction pursuant to the Driver's License Compact based upon a
report of conviction of New York Veh, & Traf: Law ~ 1192( I) (relating to driving while ability
impaired) (DW AI) becallse it determined that such an offense was not substantially similar to
Section 3731 of the Vehicle Code, related to Driving Under the Intluenee,
,7. The Supreme Court affirmed the judgment of the Commonwealth Court of Petrovick and
Frantz in Petrovick. Frantz, & Eck v. Comnnv. ofPa.. Dept. (!!'T/,{/Ils. BDL, Nos, 173,174 & 37
AD 1998. decided December 13, 1999.
8. The Court determined that Department had no authority to suspend the motorist's
operating privilege because it determined that Ncw York Veh. & Traf, Law * 1192(1) (relating to
driving whlle ability impaired) (DW AI) was not substantially similar for purposes of Article
lV(a)(2) of the Driver's License Compact.
9. The motorist's operating privilege has been restored pending appeal pursuant to Section
1550 of the Vehicle Code.
. .
.
.
Q.flHIQH
MR. JUSTICE CAPPY
DECIDED: December 13, 1999
We granted allocatur In these three consolidated cases to address the effect of an
t)ut-of.!\tate conviction under New York's driving while ability Impaired (DWAI) statute and
Maryland's driving while under the Influence (DUI) statute upon a Pennsylvania clllzen's
driver license privileges pursuant to the Driver License Compact (Compact). The Compact
Is an agreement among several states to promote compliance with each party state's motor
vehicle laws, 75 Pa.C.S. ~1581, Article I (b)(1 )-(2). Pennsylvania became a party state to
the Compact In 1996 by adopting sections 1581.1585 of the Motor Vehicle Code, In each
of these three cases, Pennsylvania's Department of Transportation (PennDOT) revoked
the driver's license of a Pennsylvania citizen for an out-of-state conviction. In each case,
the Commonwealth Court affirmed the trial court's reversal of PennDOT's suspension of
the licenses of Appellees, and directed PennDOT to reinstate Appellees' driVing privileges.
For the reasons set forth herein, we affirm,
Our scope of review of a decision in a license suspension case is to determine if the
factual findings of the trial court are supported by competent evidence, and whether the trial
court committed an error of law or an abuse of discretion, Commonweatth of Penn.. Deot.
Qf.Im!:Wl.Qrtatlon. Bureau of Driver Llcenslna v. Boucher, 691 A,2d 450, 453, rearaument
~~ (Pa.1997).
On March 12, 1997, Appellee Shannon Petrovlck was convicted In New York of
violating N.Y. Veh. & Traf. Law ~1192(1). Appellee Philip Frantz was found guilty of the
same offense on August 22, 1997, The New York Department of Motor Vehicles reported
the convictions to PennDOT on March 31, 1997 and September 8,1997, respectively.
Subsequently, PennDOT treated Appellees' out-of.state convictions as If they were
violations of Pennsylvania's DUI statute, 75 Pa.C.S, 3731(a), and suspended Appellees'
licenses for one year, pursuant to the provisions of the Motor Vehicle Code, 75 Pa,C,S.
~1532(b)(3), which mandates a one.year suspension of the driving privileges of persons
who have been convicted of violating 75 Pa.C.S. ~3731. On June 9, 1997, Appellee
Donald Eck was convicted In Maryland for driving while under the Influence of alcohol In
violation of Md. Code, Trans. ~21.902(b). The Maryland Department of Transportation
reported Eck's conviction to PennDOT, which, in turn, notified Eck on June 27, 1997 that
his driving privileges were being suspended for one year due to his conviction for an
offense deemed to be equivalent to 75 Pa,C.S. ~3731,
Initially, we must clarify the appropriate analysis under Article IV of the Compact.
Appellant has framed the issue as whether the Pennsylvania drunk driving statute, 75
Pa.C.S. ~3731, Is "substantially similar" to the drunk driving provisions under which
Appellees were convicted In New York and Maryland. Appellant's characterization of the
issue Infers an Improper analysis. The Compact does not require a comparison of different
states' drunk driving statutes, Rather, the relevant Inquiry Is whether each state's drunk
driving provisions are "of a substantially similar nature" to Article IV(a)(2) oflhe Compact.
Pennsylvania, Maryland and New York are party states to the Compact. Article III
of the Compact provides In pertinent part that "the licensing authority of a party state shall
report each conviction of a person from another party state occurring within Its jurisdiction
to the licensing authority of the home state of the IIcensee,"1 Pursuant to Article IV(a)(2)
Article III of the Compact, entitled "Reports of Convlotlon' provides:
(continued, , ,)
[J-62, 63 & 64-1999]-2
, ,
,
, '
of the Compact, when a party state reports a conviction for "driving a motor vehicle while
under the Influence of Intoxicating liquor, . , to a degree which renders the driver Incapable
of safely driving a motor vehicle," PennDOT must give the same effect to the out-of..state
conviction that the licensee would receive If the conviction had occurred within
Pennsylvania,
Subsection (c) provides a method to evaluate offenses reported pursuant to
subsection (a)(2). Where the laws of a party state do not provide for offenses which are
described in precisely the words contained In subsection (a)(2) (I.e" "to a degree which
renders the driver incapable of safely driving a motor vehicle"), Article IV(c) authorizes the
party state to construfl the offense described In subsection (a)(2) as Identifying offenses
In the party state which are "of a substantlallv similar natur!,!" to (a)(2) (emphasis added).2
(...contlnued)
The licensing authorlfy of a party state shall report ea')h conviction of a person from
another party state occurring within Its jurisdiction to the licensing authority of the
home state of the licensee, Such report shall clearly Identify the person convicted,
describe fhe violation specifying the section of the statute, code or ordinance
violated, Identify the court in which action was taken, indicate whether a plea of
guilty or not guilty was entered or the conviction was a result of the forteifure of ball.
bond or other security and shall Include allY special findings made In connection
therewith,
75 Pa.C.S. S1581, Article III,
2
Article IV, entitled "Effect of Conviction', provides In pertinent part:
(a) The licensing authorlfy In the home state, for the purposes of suspension,
revocation or limitation of the license to operate a motor vehicle, shall give
the same effect to the conduct reported, pursuant to Article III of this
compact, as It would If such conduct had occurred In the home state In the
case of convictions for:
.
.
.
(2) driving a motor vehicle while under the Influence of Infoxlcating liquor
or a narcotic drug or under the Influence of any other drug to a
degree which renders fhe driver Incapable of safely driving a motor
vehicle;
(continued" ,)
[J-62. 63 & 64-1999J-3
, ,
Thus, the Compact does not call for a direct comparison of Pennsylvania's statute
to the out.of-state statute, Rather, the Compact requires a two-pronged test. First, we
must evaluate whether there Is a Pennsylvania offense which Is "of a substantially similar
nature" to the provisions of Article IV (a)(2), Second, we must evaluate whether there Is
a Maryland or New York offense which is "of a substantially similar nature" to Article
IV(a)(2), Both prongs must be satisfied before PennDOT can sanction a Pennsylvania
citizen for an out-of.state convlctlon.3
In order to make the comparison between the out-of.state offense and Article
IV(a)(2), we need to understand the meaning of the phrase "driving a motor vehicle while
under the Influence of Intoxicating liquor, , , to a degree which renders the driver Incapable
of safely driving a motor vehicle" in Article IV(a)(2). Pennsylvania's legislature has not
deflned this phrase. However, similar language Is found In Pennsylvania's DUI statute
which provides in pertinent part that It is an offense to drive "while under the influence of
(...contlnued)
(c) if the laws of a party state do not provide for offenses or violations
denominated or described in precisely the words employed in subdivision (a)
of this article, such party state shall construe the denominations and
descriptions appearing In subdivision (a) of this article as being applicable
to and identifying those offenses or violations of a substantially similar nature
and the laws of such party state shall contain such provisions as may be
necessary to ensure that full force and effect Is given to this article.
75 Pa.C,S. S1581, Article IV.
3 We note that some lower courts have discussed the applicability of Article IV(b), which
permits the home state to give effect to convictions reported pursuant to Article III (other than those
convictions enumerated In Article IV (a)) as if the conduct had occurred In the home sfate,
However, section 10 of the Act of Dec, 10, 1996, P.L. 925, which originally promulgated the
provisions of the Compact, states that "(i]n recognition of the technical and administrative limitations
under which the Department of Transportation Is currently operating, the effective date of Art. IV(b)
of this section shall be suspended until the repeal of section 10." Section 10 has not yet been
(continued" ,)
[J-62, 63 & 64-1999J-4
"
alcohol to a degree which renders the person Incapable of safe driving. . . ." 75 Pa.C.$,
~3731 (a)(1 ),4 Therefore we can look to Pennsylvania case law Interpreting the terminology
of section 3731(a)(1) for guldance.5
In Commonwealth v. Grlscavaae, 517 A,2d 1256 (Pa, 1986), this court addressed
the sufficiency of evidence pursuant to a violation of 75 Pa.C.S, ~3731. We explained that
the term "under the influence of alcohol" in this statute encompasses "all the well known
and easily recognized conditions and degrees of intoxication" as well as "any mental or
physical condition which Is the result of drinking alcoholic beverages and. , . substantially
Impairs his Judgment, or clearness of Intellect, or any of the normal faculties essential to the
(...contlnued)
repealed, and subsection (b) has never become effective, Thus, the provisions of Article IV,
subseotlon (b) play no role In this analysis,
4 Pennsylvania's drunk driving statute provides:
(a) Offense defined.-A person shall not drive, operate or be In aotual physical
control of the movement of any vehicle In any of the following circumstances:
(1 )
(2)
(3)
(4)
While under the influence of alcohol to a degree whloh renders the
person Incapable of safe driving,
While under the influence of any controlled substance, as defined In
the act of April 14, 1972 (P,L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act, to a degree which
renders the person Incapable of safe driving.
While under the combined Infiuence of alcohol and any controlled
substance to a degree whloh renders the person incapable of safe
driving.
While the amount of alcohol by weight in the blood of:
(I) an adult is 0.10% or greafer; or
(II) a minor Is 0,02% or greater.
75 Pa,C.S, ~3731 (a)(1)-(4) (footnote omitted),
5 Several of the lower courts have framed the issue as whether Pennsylvania's drunk driving
statute and the out-of-state statute are "substantially similar". This analysis is understandable as
some of the language of Pennsylvania's DUI sfatute, 75 Pa,C.S. ~3731(aX1), Is nearly Identical to
the language of Article IV(a)(2), However, we reiterate that the correct Inquiry involves first, a
(continued",)
[J-62, 63 & 64-1999]-5
,
,
, ,
safe operation of an automobile," JQ., at 1258 (Q.YQ1!n9 Commonwealth V, Horn, 159 A.2d
872, 875 (Pa, 1959)), In this context, "substantial impairment" Indicates "a diminution or
enfeeblement In the ability to exercise Judgment, to deliberate or to react prudently to
changing circumstances and conditions. Its meaning Is not limited to some extreme
condition of disability." 517 A.2d at 1258. Thus, while Pennsylvania may not require an
extreme condition of disability, it does require "substantial impairment", and that the driver's
ability be diminished to an extent that he Is incapable of safe driving.
As to the first prong of the test, we flnd that the provisions of Pennsylvania's DUI
statute, specifically section 3731(a)(1) ("incapable of safe driving") are of a substantially
similar nature to the provisions of Article IV(a)(2) ("incapable of safely driving"), and
therefore PennDOT Is entitled to treat violations of Article IV(a)(2) as If they were violations
of 75 Pa.C.S. ~3731, Turning to the second prong, we must now determine whether the
offenses reported by New York and Maryland are "of a substantially similar nature" to
Article IV(a)(2). We will address each statute in turn.
The New York St~tute
The New York statutory provision at Issue states In pertinent part:
51192. Operating a motor vehicle while under the Influence of alcohol
or drugs.
1, Driving while ability Impaired, No person shall operate a motor vehicle
while the person's ability to operate such motor vehicle Is Impaired bylhe
consumption of alcohol.
2, Driving while Intoxicated; per se. No person shall operate a motor vehicle
while such person has, 1 0 of one per centum or more by weight of alcohol In
(...contlnued)
comparison of Article IV(aX2) to Pennsylvania's drunk driving statute, and then a comparison of the
out-of-state statute to Article IV(a)(2),
[J-62, 63 & 64-1999)-6
, '
the person's blood as shown by chemical analysis of such person's blood,
breath, urine or saliva, made pursuant to the provisions of section eleven
hundred ninety-four of this article.
3. Driving while Intoxicated. No person shall operate a motor vehicle while
In an Intoxicated condition,
N.Y. Veh. & Traf. Law~~1192(1)-(3).
In the Petrovlck and Frantz appeals, the Commonwealth Court affirmed the trial
court's reversal of the suspension based upon its reasoning in QJmstead v. Dept. of
Transoortatlon. Bureau of Driver L1censina, 677 A,2d 1285 (Pa. Cmwlth, 1996), affd oer
curiam, 707 A.2d 1144 (pa. 199B). The appellant In Olmstead argued that Pennsylvania
had no offense that was essentially similar to New York's DWAllaw, N,Y. Veh. & Traf. Law
~1192(1); to the contrary, Pennsylvania's DUI statute, 75 Pa.C.S. ~3731, was substantially
akin to a different provision, New York's Driving While Intoxicated (DWI) Law. In order to
Interpret the provisions of the New York statute, the Commonwealth Court looked to the
reasoning In Peoole v. Cruz, 399 N,E.2d 513 (N.Y. 1979), aooeal dismissed, 446 U.S. 901
(1980), In which the Court of Appeals of New York enunciated the distinctions between
Impairment under ~1192(1) and Intoxication under ~1192(3).
As to Impairment under ~1192(1), the Court of Appeals explained that the pertinent
Inquiry Is "whether, by VOluntarily consuming alcohol, this particular defendant actually
Impaired, to any extent, the physical and mental abilities which htils expected to possess
in order to operate a vehicle as a reasonable and prudent driver." Cruz, 399 N,E,2d at 516,
Intoxication, for purposes of ~1192(3), "Is a greater degree of Impairment which is reached
when the driver has voluntarily consumed alcohol to the extent that he is incapable of
employing the physical and mental abilities which he Is expected to possess in order to
operate a vehicle as a reasonable and prudent driver." 399 N.E.2d at 517. The
[J-62, 63 & 64-1999]-7
"
..
. :
, .
, ,
Commonwealth Court In Olmstead concluded that New York failed to report that Olmstead
had driven while under the Influence of alcohol to a degree that he was Incapable of driving
safely, and thus, DOT could not suspend his license under Article IV(a)(2),6 Id. at 1288.
The CommonweaUh Court In Olmstead did not follow the analysis we have set forth
today. Nevertheless, we find the distinctions In Cruz to be compelling. In rejecting the
Q!J!l.&ead court's reasoning, PennDOT's arguments center on why Pennsylvania's statute
and New York's statute are SUbstantially similar. First, Penn DOT contends that both
statutes only require that a licensee's ability to safely operate a motor vehicle be impaired,
not Intoxicated, In light of the distinctions drawn by the Cruz court, we find no merit In this
contention, Second, PennDOT claims that the Commonwealth Court In Olmstead unduly
relied on the BAC levels of the New York statute, To the contrary, we find that the
Olmstead court properly based its decision upon the distinctions set forth by the Cruz court.
Third, PennDOT claims that other party states to the Compact have found that New York's
DWAI statute Is substantially similar to that party state's statute. S~, ft"g" Montan'y'e v.
~,864 P.2d 1234 (Mont. 1993); ~tate v, Reof!]J, 508 A.2d 1149 (N,J. App, Dlv. 1986);
przvblka v. South Carolina DeDt. of Hlahwavs & Public TransD., 437 S.E,2d 70 (S.C. 1993).
We are not persuaded by the reasoning of any of these cases,
I
Penn DOT argues that the recent addition of section 1586 to the Compact Indicates
the General Assembly's rejection of the Commonwealth Court's reasoning In Olmste~ and
Its progeny. Section 1586, entitled "Duties of Department", prOVides:
e
The Commonwealth Court In Olmstead quoted from the Driver License Compaot,
Administrative Procedures Manual, 1990, which contained the provisions of Article IV (a)(2) within
Article IV( 1 )(b),
[J-62, 63 & 64-1999]-8
,
,
, .
, ,
The department shall, for purposes of imposing a suspension or revocation
under Article IV of the compact, treat reports of convictions received from
party states that relate to driving, operating or being In actual physical control
of a vehicle while Impaired by or under the Influence of alcohol, Intoxicating
liquor, drugs, narcotics, controlled substances or other Impairing or
Intoxicating substance as being substantially similar to section 3731 (relating
to driVing under influence of alcohol or controlled substance), The fact that
the offense reported to the department by a party state may require a
different degree of Impairment of a person's ability to operate, drive or control
a vehicle than that required to support a conviction for a violation of section
3'731 shall not be a basis for determining that the party state's offense Is not
substantially similar to set.110n 3731 for purposes of Article IV of the compact.
75 Pa.C.S. ~1586, 1998, Dec. 21, P.L, 1126, No. 151, ~21, imd. effective.
Penn DOT argues that this section should be persuasive, even if, as PennDOT
concedes, it Is not directiy applicable to cases heard prior to December 21, 1998, the date
upon which the amendment became effective. However, our rules of statutory construction
provide that the new provision shall be construed as effective only from the date upon
which the amendment became effective. 1 Pa,C,S. ~1953. The legislature cannot create
retroactive authority by passing "clarifying" legislation. !;ommonwealth v. Shaffer, J.181A-
1998 (cltina $t. Joseph Lead Co. & Koppers Co.. Inc. v, Potter Township, 157 A.2d 638,
642 (Pa. 1957)), Rather, an amendment to a statutory provision can be applied
retroactively only if the General Assembly specifically provides for such application in the
provisions of the statute, pommonwealth v. Sgoleri, 160 A.2d 215, 227 (Pa,), cert. den~d,
364 U.S. 849, 81 S.Ct. 93, 5 L.Ed,2d 72 (1960), or If the legislation is a procedural law,
rather than a substantive law which affects a party's rights. See Morabito's Auto Sales v.
pept. of Transportation, 715 A.2d 384, 386 (pa. 1998) (citation omitted). Because the
General Assembly did not provide for retroactive application of section 1586, and because
retroactive application of this amendment likely would affect the substantive rights of
Appellees, we cannot base our decision on this provision.
[J-62, 63 & 64-1999]-9
161. I
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".
We may affirm the decision of a lower court "If the result Is correct on any ground
without regards to the grounds which the trial court Itself relied upon." E,J. McAleer & Co.
v. Iceland Products, Inc., 381 A.2d 441,4431'1.4 (Pa. 1977), Although the lower courts In
the Frantz and Petrovlck appeals erred In their analyses, we conclude that they correctly
determined that New York's DWAllaw does not provide a basis for reciprocal suspension
for purposes of Article IV of the Driver License Compact?
Ib!..Marvland Statute
The Maryland statutory provision at issue states In pertinent part:
521.902.
(c) Driving while Intoxlcated.-
(1) A person may not drive or attempt to drive any vehicle while
Intoxicated.
(2) A person may not drive or attempt to drive any vehicle whlle the
person has an alcohol concentration of 0,10 or more as
measured by grams of alcohol per 100 milliliters 0'1 blood or
grams of alcohol per 210 liters of breath as determined at the
time of testing.
(b) Driving while under the Influence of alcohol.-A person may not drive
or attempt to drive any vehicle while under the Influence of alcohol.
(c) Driving while under Influence of drugs or drugs and alcohol.-
(1) A person may not drive or attempt to drive any vehicle while he
Is so far under the Influence of any drug, any combination of
drugs, or a combination of one or more drugs and alcohol that
he cannot drive a vehicle safely.
Md. Code, Trans. ~21-902(a)-(c)(1).
The Maryland legislature has not defined the term "under the Influence of alcohol",
and neither of the parties have directed us to relevant Maryland case law Interpreting the
phrase. A recent decision of a federal district court In Maryland has Interpreted "driving
7 Because of our resolution of this matter, we will not address Frantz's additional claim that the
suspension was Invalid ber.ause the conviction report sent by the licensing authority of New York
was not SUffiCiently speclflc for purposes of Article III of the Compact.
[J-62, 63 & 64-1999]-10
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under the Influence of alcohol" as "driving a motor vehicle when an Indlvldual'r, normal
judgment, perception, and/or coordination was adversely affected; that is, made worse !Q
any exten\ by the consumption of an alcoholic beverage." United States v. 13auls, 981
F.Supp. 909, 919 (D. Md, 1997) (emphaSis added).8
Moreover, In Interpreting an earlier version of the statute, the Attorney General of
Maryland opined that "proof of unsafe operation Is not a necessary element of the offenses
of driving while Intoxicated or driving while under the influence of alcohol." Opinion No. 83-
016,68 M.D. Op. Attny. Gen. 441 (May 2, 191:\3), The Attorney General Indicated that the
fact that the General Assembly did not Include the requirement "that he cannot drive a
vehicle safely" in sections (a) and (b), while Including it In section (c), "implies its deliberate
rejection" In the former sections, !Q. Notably, the current versions of sections (a) and (b)
also omit this requirement while section (c) retains it.
Even though ~ 21-902(b) omits the phrase "to a degree which renders the person
incapable of safe driving", PennDOT contends that the two statutes are substantially
8 We acknowledge that In Alston v, Forsvthe, 172 A.2d 474 (Md, 1961), the Court of
Appeals of Maryland Implicitly referred to "under the Influence of alcohol" as "drinking to the
extent of probably affecting one's Judgment and discretion or probably affecting one's
nervous system to the extent that there is a failure of normal coordination, although not
amounting to Intoxication." Id. at 479 (auotinQ Clav v, State, 128 A.2d 634, 638 (Md. 1957));
see ~ Brooks v. Stat~, 395 A,2d 1224, 1227 n.3 (Md, Ct. Spec, App. 1979) (analogizing
~ deflnltlon to "driving while ability Impaired" statute, the predecessor of the current
"driving while under the influence of alcohol" statute). However, as the Court of Special
Appeals noted, "the tests enumerated In Alston were applic:able to [a predecessor of the
current statute], which set forth a more serious offense than that established In the present
Impaired driving statute, section 11-902(b) of Art. 66 Xi [the predecessor of current section
21-902(b), driving while under the Influence]." Carter v. Co~, 346 A.2d 481, 488 (Md.
Ct. Spec, App. 1975), cert, denied, 276 Md. 739 (Md. 1976). Carter further stated that
"[t]he present statute setting forth the more serious offense is section 11-902(a) of Art. 66
Xi, making It unlawful to drive while In an Intoxicated condition," Section 11-902(a) Is the
predecessor of section 21-g02(a), also relating to driving while Intoxicated. Thus. we do
not find the Alston/Clm' definition to be controlling In the Instant case.
[J-62, 63 & 64-1999]-11
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similar. Applying the appropriate analysis, we flnd that the difference In the language of the
Maryland statute and Article IV(a)(2) Is not the salient distinction, Rather, as with the
appeals of the New York convictions, it Is the effect of the language In defining the scope
of the offense which determines whether or not the out-of.state statute Is of a substantially
similar nature to Article IV(a)(2). The Maryland statute falls to specify the degree to which
a person must be under the Influence of alcohol, and therefore permits a much lower
threshold for CUlpability; In contrast, Article IV(a)(2) requires that the person be Impaired
to a degree that he or she Is Incapable of safely driving,
PennDOT seeks guidance in Commonwealth v, Robertson, 722 A.2d 1047 (Pa.
1999), wherein, pursuant to the Compact, we addressed whether Maryland's "driving while
intoxicated" provision, ~21-902(a) Was an "equivalent offense" to Pennsylvania's DUI
statute, 75 Pa.C.S. ~3731, for the purpose of sentencing appellant as a repeat offender
pursuant to 75 Pa.C.S. ~ 3731(e)(1 )(iv). This court, being equally divided, Issued an Order
affirming the Commonwealth Court's determination that the two statutes were equivalent
offenses for purposes of sentencing. The Order was accompanied by an Opinion In
Support of Affirmance and an Opinion In Support of Reversal.
Penn DOT does not rely on the Opinion In Support of Affirmance, which found that
the offense of driving while Intoxicated, a different provision of the Maryland statute than
the one at issue here, is akin to Pennsylvania's DUI statute. 722 A.2d at 10519 Instead,
PennDOT looks to the Opinion in Support of Reversal, which proposed that "(s]ubstantlal
similarity is satisfied where the statutes of the different jurisdictions proscribe the same
general conduct, notwithstanding the fact that the statutes require differing degrees of
9 In Robertson, we addressed an earlier version of Maryland's drunk driving statute, However,
because the former statute retained the dlstlncflon between "driving while Intoxicated" and "driving
while uncleI' the influence of alcohol", we find the reasoning in the plurality opinion in Robertson to
be applicable.
[J-62. 63 & 64-1999J-12