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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan L. Mease
V.
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 2752 C.D. 2000
SUBMITTED: May 4, 2001
BEFORE: HONORABLE JAMES GARDNER COLINS, Judge
HONORABLE JAMES R. KELLEY, Judge
HONORABLE SAMUEL L. RODGERS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE RODGERS
FILED: June 15, 2001
The Department of Transportation, Bureau of Driver Licensing
(Department) appeals from the November 15, 2000 order of the Court of Common
Pleas of Cumberland County (trial court) that sustained the statutory appeal of
Susan L Mease (Licensee) from a one year suspension of her operating privilege
imposed by the Department pursuant to the Driver's License Compact (Compact).'
We reverse.
On May 2, 1999, Licensee was charged with violating N.J. Stat.
§39:4-50(a), New Jersey's driving under the influence (DUI) statute, and she pled
'Section 1581 of the Vehicle Code, 75 Pa. C.S. §1581.
guilty to that offense on July 7, 1999. By notice dated August 2, 1999, the
Department notified Licensee that her license would be suspended for one year as a
result of her conviction in New Jersey, which the Department determined to be for
an offense equivalent to a violation of Section 3731 of the Vehicle Code, 75 Pa.
C.S. §3731.
Licensee filed a timely appeal with the trial court, which held a de
novo hearing on April 28, 2000. The Department admitted into evidence a packet
of documents that included the Department's certified receipt of the electronically
transmitted conviction report from the New Jersey Division of Motor Vehicles.
Licensee offered into evidence a copy of a New Jersey municipal court order
showing that she pleaded guilty to the charge with "civil reservation." Licensee
also stipulated that her blood alcohol content (BAC) was above 0.10% at the time
the breathalyzer test was administered.
The trial court specifically addressed only one of the numerous issues
raised by Licensee on appeal, correctly concluding that the remaining issues had
been addressed and resolved against her by our appellate courts.Z Following the
z Licensee's argument that she was not advised of the consequences of her guilty plea and
was otherwise denied due process constitutes an impermissible collateral attack upon the
underlying conviction. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1176, cert. denied, 513
U.S. 884 (1994). Licensee's equal protection argument was rejected in Department of
Transportation. Bureau of Driver Licensing v McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000).
This court has repeatedly held that the Department is not barred from relying on evidence of a
conviction that results from a guilty plea entered with "civil reservation." See Breen v.
Department of Transportation, Bureau of Driver Licensing, _ A.2d _, (Pa. Cmwlth., No.
1360 C.D. 2000, filed April 12, 2001) and cases cited therein.
With respect to Licensee's assertion that the Department failed to satisfy its burden of
proof, we direct Licensee's attention to Reproduced Record p.15a, describing Plaintiff's Exhibit
No. 1.
2
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analysis set forth in Petrovick v. Department of Transportation Bureau of Driver
Licensine, 559 Pa. 614, 741 A.2d 1264 (1999), the trial court held that the conduct
prohibited by New Jersey's DUI statute is not substantially similar to the conduct
prohibited by Article IV(a)(2) of the Compact and, therefore, a conviction under
New Jersey's DUI statute is not a basis for a reciprocal suspension under the
Compact. Accordingly, the trial court sustained Licensee's appeal and reversed the
suspension of her operating privilege.
On appeal to this Court ,3 the Department argues that the offense
described by New Jersey's DUI statute is substantially similar to the conduct
described in Article IV(a)(2) of the Compact.
In pertinent part, Article IV(a)(2) applies in cases of conviction for
"driving a motor vehicle under the influence of intoxicating liquor ... to a degree
which renders the driver incapable of safely driving a motor vehicle." 75 Pa. C.S.
§1581. A person violates N.J. Stat. §39:04-50(a) when she "operates a motor
vehicle while under the influence of intoxicating liquor .., or operates a motor
vehicle with a blood alcohol concentration of 0.10% or more."
This court has previously held that the provisions of New Jersey's
DUI statute are substantially similar to the provisions of Article IV(a)(2) of the
Compact. Breen; Seibert v. Department of Transportation, Bureau of Driver
Licensin¢, 715 A.2d 517 (Pa. Cmwlth. 1998), appeal denied, 560 Pa. 753, 747
A.2d 373 (1999). Although the New Jersey statute does not use the words
a Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, an error of law was committed, or the trial court abused its discretion.
Department of Transportation. Bureau of Driver Licensing v. Fellmeth, 528 A.2d 1090 (Pa.
Cmwlth. 1987).
3
"incapable of safely driving," such condition is implicitly described by the statute's
terms. Id. The New Jersey statute prohibits a person from operating a vehicle with
a BAC of 0.10%, and there is no question that a person with a BAC of 0.10% is
incapable of safe driving. Id. Contrary to the trial court's interpretation, New
Jersey courts have consistently recognized that a BAC of 0.10% constitutes a level
where virtually every driver would be a danger to the public. State v. Tischio, 107
N.J. 504, 527 A.2d 388 (1987), Upeal dismissed, 484 U.S. 1038 (1988);4 State v.
Johnson, 42 N.J. 146, 199 A.2d 809 (1964); State v. Morris, 262 N.J. Super. 413,
621 A.2d 74 (1993).
Accordingly, we reverse.
A4??
SAMUEL L. RODGE S, Senior Judge
Judge Kelley dissents.
4 In Tischio, the court held that test results from a reliable breathalyzer test administered
within a reasonable period of time after the defendant is stopped for drunk driving constitute
sufficient evidence to establish a violation of N.J. Stat. §39:4-50(a), and that prosecution for this
offense neither requires nor allows the introduction of extrapolation evidence.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan L. Mease
V. : No. 2752 C.D. 2000
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
ORDER
NOW, June 15. 2001 , the order of the Court of Common Pleas of
Cumberland County in the above-captioned matter is reversed.
SAMUEL L. RODGER , Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan L. Mease
V.
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
: No. 2752 C.D. 2000
: SUBMITTED: May 4, 2001
BEFORE: HONORABLE JAMES GARDNER COLINS, Judge
HONORABLE JAMES R. KELLEY, Judge
HONORABLE SAMUEL L. RODGERS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE RODGERS
FILED: June 15, 2001
The Department of Transportation, Bureau of Driver Licensing
(Department) appeals from the November 15, 2000 order of the Court of Common
Pleas of Cumberland County (trial court) that sustained the statutory appeal of
Susan L Mease (Licensee) from a one year suspension of her operating privilege
imposed by the Department pursuant to the Driver's License Compact (Compact).'
We reverse.
On May 2, 1999, Licensee was charged with violating N.J. Stat.
§39:4-50(a), New Jersey's driving under the influence (DUI) statute, and she pled
1 Section 1581 of the Vehicle Code, 75 Pa. C.S. §1581.
guilty to that offense on July 7, 1999. By notice dated August 2, 1999, the
Department notified Licensee that her license would be suspended for one year as a
result of her conviction in New Jersey, which the Department determined to be for
an offense equivalent to a violation of Section 3731 of the Vehicle Code, 75 Pa.
C.S. §3731.
Licensee filed a timely appeal with the trial court, which held a de
novo hearing on April 28, 2000. The Department admitted into evidence a packet
of documents that included the Department's certified receipt of the electronically
transmitted conviction report from the New Jersey Division of Motor Vehicles.
Licensee offered into evidence a copy of a New Jersey municipal court order
showing that she pleaded guilty to the charge with "civil reservation." Licensee
also stipulated that her blood alcohol content (BAC) was above 0.10% at the time
the breathalyzer test was administered.
The trial court specifically addressed only one of the numerous issues
raised by Licensee on appeal, correctly concluding that the remaining issues had
been addressed and resolved against her by our appellate courts.2 Following the
2 Licensee's argument that she was not advised of the consequences of her guilty plea and
was otherwise denied due process constitutes an impermissible collateral attack upon the
underlying conviction. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1176, cert. denied, 513
U.S. 884 (1994). Licensee's equal protection argument was rejected in Department of
Transportation. Bureau of Driver Licensing v McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000).
This court has repeatedly held that the Department is not barred from relying on evidence of a
conviction that results from a guilty plea entered with "civil reservation." See Breen v.
Department of Transportation Bureau of Driver Licensing, _ A.2d _, (Pa. Cmwlth., No.
1360 C.D. 2000, filed April 12, 2001) and cases cited therein.
With respect to Licensee's assertion that the Department failed to satisfy its burden of
proof, we direct Licensee's attention to Reproduced Record p. 15a, describing Plaintiffs Exhibit
No. 1.
2
I
analysis set forth in Petrovick v. Department of Transportation Bureau of Driver
Licensing, 559 Pa. 614, 741 A.2d 1264 (1999), the trial court held that the conduct
prohibited by New Jersey's DUI statute is not substantially similar to the conduct
prohibited by Article IV(a)(2) of the Compact and, therefore, a conviction under
New Jersey's DUI statute is not a basis for a reciprocal suspension under the
Compact. Accordingly, the trial court sustained Licensee's appeal and reversed the
suspension of her operating privilege.
On appeal to this Court ,3 the Department argues that the offense
described by New Jersey's DUI statute is substantially similar to the conduct
described in Article IV(a)(2) of the Compact.
In pertinent part, Article IV(a)(2) applies in cases of conviction for
"driving a motor vehicle under the influence of intoxicating liquor ... to a degree
which renders the driver incapable of safely driving a motor vehicle." 75 Pa. C.S.
§1581. A person violates N.J. Stat. §39:04-50(a) when she "operates a motor
vehicle while under the influence of intoxicating liquor ... or operates a motor
vehicle with a blood alcohol concentration of 0.10% or more."
This court has previously held that the provisions of New Jersey's
DUI statute are substantially similar to the provisions of Article IV(a)(2) of the
Compact. Breen; Seibert v. Department of Transportation, Bureau of Driver
Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998), appeal denied, 560 Pa. 753, 747
A.2d 373 (1999). Although the New Jersey statute does not use the words
3 Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, an error of law was committed, or the trial court abused its discretion.
Department of Transportation. Bureau of Driver Licensing v. Fellmeth, 528 A.2d 1090 (Pa.
Cmwlth. 1987).
3
r
"incapable of safely driving," such condition is implicitly described by the statute's
terms. Id. The New Jersey statute prohibits a person from operating a vehicle with
a BAC of 0.10%, and there is no question that a person with a BAC of 0.10% is
incapable of safe driving. Id. Contrary to the trial court's interpretation, New
Jersey courts have consistently recognized that a BAC of 0,10% constitutes a level
where virtually every driver would be a danger to the public. State v. Tischio, 107
N.J. 504, 527 A.2d 388 (1987), U peal dismissed, 484 U.S. 1038 (1988);° State v.
Johnson, 42 N.J. 146, 199 A.2d 809 (1964); State v. Moms, 262 N.J. Super. 413,
621 A.2d 74 (1993).
Accordingly, we reverse.
-7 e
SAMUEL L. RODGE , Senior Judge
Judge Kelley dissents.
4 In Tischio, the court held that test results from a reliable breathalyzer test administered
within a reasonable period of time after the defendant is stopped for drunk driving constitute
sufficient evidence to establish a violation of N.J. Stat. §39:4-50(a), and that prosecution for this
offense neither requires nor allows the introduction of extrapolation evidence.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan L. Mease
V. : No. 2752 C.D. 2000
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
ORDER
NOW, June 15. 2001 , the order of the Court of Common Pleas of
Cumberland County in the above-captioned matter is reversed.
SAMUEL L. RODGER , Senior Judge
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Supreme Court of Pennsylvania
Imne A Bimso Meddle District P.O. Box 624
Deputy Prothonotary Harrisburv. PA !7108
ShirleyBaBey August 1, 2002 717-787.6181
Chief Clerk u .aopc.org
Mr. Charles R. Hostutler
Room 624, Sixth Floor
South Office Building
Harrisburg, PA 17120
RE: Susan L. Meese, Petitioner
V.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing, Respondent
Commonwealth Docket Number - 2752 CD 2000
Trial Court/Agency Dkt. Number: 99-5259
No. 581 MAL 2001 I r
Appeal Docket No.: N
Date Petition for Allowance of Appeal Filed: July 16, 2001 rv
Disposition: Order Denying Petition for Allowance of Appeal
Date: August 1, 2002
I N
Reargument/Reconsideration Disposition:
Rearg ument/Reconsideration
Disposition Date:
/esh
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SUSAN L. MEASE, : No. 581 MAL 2001
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
Petition for Allowance of Appeal from
Order of the Commonwealth Court
ORDER
PER CURIAM
AND NOW, this 15t day of August, 2002, the Petition for Allowance of Appeal is
hereby DENIED.
TRUE & CORRECT COPY
' 29Q2
.'ATTEST:' , 'AU'
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SHIRLE J PHIPF
APPELLA CLER
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CETIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
COMMONWEALTH COURT OF PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
SUSAN L. MEASE
APPELLANT
Vs
DEPARTMENT OF TRANSPOPRTATION
BUREAU OF DRIVER LICENSING
COMMONWEALTH OF PENNSYLVANIA
99-5259 CIVIL TERM
2752 CD 2000
The documents comprising the record have been numbered from No. 1 to 39 , one
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pager comprising the document.
The date on which the record has been transmitted to the Appellate Court is 2-12-01
dlk??
Curtis R. Long, othonot
Jane H. Sparling, Dpty.
An
of this certificate is encl
record.
Date
Signature & Title
A
0
Commonwealth of Pennsylvania
County of Cumberland ss:
In TESTIMONY WHEREOF, I have hereunto
this 12th
1, _Curtis R. Long , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
Susan L Mease
Plaintiff, and
Dept. Of Transportation PtC
Defendant as the same remains of record
before the said Court at No. 99-5259 of
Civil Term, A.D. 19_.
set my hand and affixed the seal of said Court
day of February A p 17001
t A,'
Pmlhonntum
1, Georqe E. Hoffer President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
Curtis R Long , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at thetime of so doing, and now is
Prothonotary in and for said County of Cumberland
the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record,
certificate and attestation are in due form of law and made by the a of cc
P iJcnt Judge
Commonwealth of Pennsylvania
County of Cumberland sx:
1. Curtis R. Long Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable George E. Hoffer P.J.
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at thetime
of making thereof. and still is President.ludge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to he given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of said Court this
12th day ;rie?ruarVA. , 8001 .
011111111
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of CUMBERLAND
in the Commonwealth of Pennsylvania
to No. 99-5259 Civ; t mom,.
COPY OF COMPLETE APPEARANCE
Term. 19 is contained the following:
SUSAN L. MEASE
1110 Cocklin Street
Mechanicsburg PA 17055
APPELLANT
-vs-
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Commonwealth of Pennsylvania
Harrisburg PA 17123
APPELLEE
DOCKET ENTRY
SEE ATTTACHED CERTIFIED DOCKET ENTRIES
PYS5I Cumberland County Prothonotary's Office Page
Civil Case Inquiry
177'1 (Iri259 MIiASE SUS00 1, (vs) DEPARTMENT OF TRANS" ,i2TATION
Rr•Irrren r•r. ....: Filed . .
r'nrr' 'I'y1rv'. ..: AI'1'I:A I, IJ('IiNS h: SOSP Pi me.... • • • • • 8/27/1999
: 2:09
.Iwlgmenl..• .p0 Execution Date 0/00/0000
ludgn Assignr-rl:
h Jury Trial....
Oi:grea-ed e::r-' p
Cana Crrm Disposed Date. 0/00/0000
menLv - Higher Crt 1.: 2752 CD2000
Higher Crt 2.:
.k.rrrka*«+*.w***«***awakw+***+*«***++*###+*#+#+#«+a**##+*#+*#**#*aaa###***#**#
Urno rrl Index Attorney Info
MI:ASI: SUSAN I. APPELLANT FARRELL J MICHAEL
I I In COCKLIN S'1'I(
MI:CIIANICSHIIR(; PA 17055
PAGE PA
3 - 11
1 - 2
12
13
OI•:I'ARTMF:NT UI•' TRANSPORATION APPELLEF,
COMMONWEAIlPII or. PENNSYI,VAN IA
11HREAII OF DRIVE LICENSING
BAI(R ISHHRG PA 17123
.kk.kw#k####*#*#*#*##k*******************#*#*#*#*#***##*#*##**##**#*#*#***###*#,
" Otte Entries
8/2.7/1999
7/(11/1979
2/24/2000
4/20/2000
FIRST ENTRY
PETITION TO APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-- ---------- ---------------------------------
HOLE TO SHOW CAUSE DATED 09-02-99 - DEPT OF TRANS IS DIRECTED TO
- NO NOT BE
RULE: RETURNABIEI11--5F99EATR oo
CR5F8:30AMHEREIN
CANCELLATION
OR REVOCATION SHALL BE IMPOSED UPON SUSAN L MEASE UNTIL FILAL
DETERMINATION OF THIS MATTER - BY THE COURT J GUIDO
_.-.. -------------
----------------------------------
ORDER - DATED 2/14/00 - HEARING ON 4/14/00 AT 8:30 AM
BY EDWARD E GUIDO J - COPIES MAILED 2/25/00
------------------------------------
ORD10 01" COURT DATED 4/20/00 - HEARING ON 4/14/00 IS RESCHEDULED
FOR 4/28/00 AT 9:00 AM CR 5 CUMBERLAND COUNTY COURTHOUSE CARLISLE
PA NO FURTHER CONTINUANCE. WILL BE GRANTED BY EDWARD E GUIDO J
COPIES MAILED 4/20/00
- ------- ----------------- ---------- ------------------------------
ORDER OF COURT - DATED 11/15/00 - IN RE LICENSE SUSPENSION APPEAL -
FOR THE REASONS SET FORTH IN THE ACCOMPANYING OPINION THE APPEAL OF
SUSPENDINGAHERIOPERATINGEPRIVILEGESACTION REVERSED E - DEPARTMENT
BY THECOURT
EDWARD E GUIDO I COPIES MAILED 11/16/00
--- -------------------------------
NOTICE OF APPEAL - TO COMMONWEALTH COURT OF PENNSYLVANIA -
BY TIMOTHY P WILE
...-_--..---...--.._
- -------------------------------------
ONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING If 2752 CD 2000
- ---- ---------------------------------------------------------
ORDER OF COURT - 1/31/01 - APPELLANT IS DIRECTED TO FILE A CONCISE
TODTEMTN OF COMPLAINED OF
APPEAL B -
BY THE COURT KEVIN A HESS J FOR EDWARD E GUIDO MAILED 2/5/01
--------
TRANSCRIPT FILED
-- - - - - - - LAST ENTRY - - - - - - - - - - - - - -
14 - 23 11/If,/2000
24 - 27 12/07/2000
28 - 29 12/15/2000
29-A 2/01/2001
30 - 37 2/00/2001
k Escrow Information +
* I`r•n5 h Debi LF Flea Bal Pmts/Add End Bal
APPEAI, LIC SIISI'
TAX ON APPEAL 35.00 35.00 .00
'
' .50
5 00 .50
5.00 .00
00
ICI
I•
I•;I'.
APPEAl 5
.00
5.00
.
.00
. 30.00
-------- 30.00 .00
75.50
--- -----
.00
k*k«*w****************************************k*********************************
37 APPELLANT'S AND APPEUEE"S BRIEFS
38 EXIHIBITS
1 ,PY551q
Cumberland County
Prothonotary's Offic )
052
)t Civil Case e
Inquiry a
Page
59 MEASE SUSAN L vs
DEPARTMENT OF TRANSPOki'ATION
No fr:ronco Nn.
;
.
Cass ,I,Ype..... A
ln
rlgmen t.....' PPEAI, - LICENSE SUSP Filed........:
Time 8/27/1999
,Irnlii? Assigned:
1)1slm;od Dosc 00 .........:
Execution Date 2:09
0/00/0000
,; Jury Trial..
Case
Comments ------------ .,
-- Hisposed Date.
0/00/0000
2
End of case information 9 er Crt 1.; 2752 CD2000
+
TRUE GOpy FROM RECORD
In Toghneny whereof,
and the the 1 here unto set my twW
I
!hl otl said rc at Carlisle, pa.
d
?sL4:L
64
AUG 3 0 19j
Oft J. MICHAEL FARRELL, ESQ.
I.D. NO. 33803
718 Arch Street, Ste. 40ON
Philadelphia, PA 19106
ATTORNEY FOR PLAINTIFF
SUSAN L. MEASE
1110 COCKLIN STREET
MECHANICSBURG, PA 17055
vs.
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Commonwealth of Pennsylvania
Harrisburg, PA 17123
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
DOB: 5-4-98
18120037 PA
NO. 94 - S"ZS l lut (
RULE TO SHOW CAUSE
AND NOW, this OZA/, day of SL.E4vJ WZ 1999, upon
consideration of the attached Petition to Appeal Driver License Suspension, a rule is granted and
the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing is
directed to show cause why the relief requested herein should not be granted.
RULE RETURNABLE this ?? Day of /Vc) y u'd Ve 1999, at
Courtroom Cumberland County Courthouse, Carlisle, Pa, at 9--3d A. o'clock.
m.
IT IS FURTHER ORDERED AND DECREED that the filing of this Petition shall and
does operate as a supersedeas to the suspension of the driver's license of Susan L. Mease, Driver
License No. 18120037 PA, that no suspension, cancellation or revocation shall be imposed upon
Susan L. Mease until final determination of this matter.
BY THE C RT:
J.
- 1 r- 1 I^ I i .
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J. MICHAEL FARRELL, ESQ.
I.D. NO. 33803
718 Arch Street, Ste. 40ON
Philadelphia, PA 19106
ATTORNEY FOR PLAINTIFF
SUSAN L. MEAS- E
1110 COCKLIN STREET
MECHANICSBURG, PA 17055
vs.
1%
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
DOB: 5-4-98
18120037 PA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Commonwealth of Pennsylvania NO.
Harrisburg, PA 17123
ORDER
AND NOW, this day of
1999, upon
consideration of the Petition to Appeal the Driver's License Suspension and, after argument
thereon, it is hereby ORDERED AND DECREED that said Petition is GRANTED.
BY THE COURT:
J.
02
J. MICHAEL FARRELL, ESQ.
I.D. NO. 33803
718 Arch Street, Ste. 40ON
Philadelphia, PA 19106
ATTORNEY FOR PLAINTIFF
SUSAN L. MEASE
1110 COCKLIN STREET
MECHANICSBURG, PA 17055
vs.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
DOB: 5-4-98
18120037 PA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing (
Commonwealth of Pennsylvania NO. 99 -r 5a 57 ?l v i l ?E2/' j
Harrisburg, PA 17123 /
PETITION TO APPEAL DRIVER LICENSE SUSPENSION
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Petitioner, Susan L. Mease, by J. Michael Farrell, Esquire, her attorney, pursuant to 75
Pa.C.S.A. Sec. 1550, hereby appeals the proposed driver license suspension by the Department
of Transportation, Bureau of Driver Licensing, Commonwealth of Pennsylvania, effective
September 6, 1999 and, in support thereof, states as follows:
1. On August 2, 1999, the Director of the Bureau of Driver Licensing, Department of
Transportation, Commonwealth of Pennsylvania, sent official notice to Petitioner that effective
September 6, her driving privileges would be suspended for One Year. (See attached hereto a
copy of said official Notice).
2. The suspension of Petitioner's driver license is unsupported, either in fact or in law.
3. Additionally, the totality of circumstances both in mitigation and in extenuation compel
that this Court set aside any suspension of Petitioner's driver license.
4. Economic hardship along with all other extenuating circumstances and mitigating
X11
factors compel setting aside the suspension order of Petitioner's driver license.
5. The proposed sanction of a one year suspension of Petitioner's driving privilege in
Pennsylvania is violative of the Double Jeopardy Clauses of the United States and Pennsylvania
Constitutions.
6. The proposed sanction of a one year suspension of Petitioner's driving privilege in
Pennsylvania is violative of the Due Process Clause of the United States and Pennsylvania
Constitutions.
7. The Pennsylvania Department of Motor Vehicles lacks jurisdiction to impose the
proposed sanction.
8. The sanction of a twelve month suspension of Petitioner's Pennsylvania driver's license
when the maximum suspension for a first offense under New Jersey's driving under the influence
statute is six months violates the Due Process Clause of the United States Constitution and the
Pennsylvania Constitutions, and constitutes an Ex Post Facto law violative of both the United
States and Pennsylvania Constitution.
9. The proposed sanction of a twelve month suspension of Petitioner's Pennsylvania
driver's license for a New Jersey DUI conviction, for which Petitioner had no right to ajury trial
under New Jersey law but would have had a right to Jury Trial under Pennsylvania Law violates
the United States and Pennsylvania Constitutions.
10. This sanction of a twelve month suspension of Petitioner's driving privilege in
Pennsylvania for a New Jersey DUI conviction is violative of the United States and Pennsylvania
Constitutions in that Petitioner would have substantial defenses to the charge of Driving Under
the Influence under Pennsylvania Law which are not available under New Jersey Law and were
not available to him in the New Jersey case.
1
wwl
e4
11. The imposition of the proposed sanction of a twelve month suspension of Petitioner's
driving privilege in Pennsylvania for a New Jersey DUI conviction violates the United States and
Pennsylvania Constitutions in that Petitioner had absolutely no notice that a conviction in New
Jersey would have any effect on his privilege to drive in Pennsylvania.
12. Petitioner's New Jersey guilty plea to Driving Under the Influence was
constitutionally involuntary, in that she was unaware that the consequence of that plea would be a
twelve month suspension of his driving privileges in Pennsylvania.
13. The suspension of the Petitioner's driving privileges in the Commonwealth of
Pennsylvania, constitutes a second punishment for the identical conduct for which she had been
previously punished in the State of New Jersey and, therefore, said suspension of his driving
privileges constitutes a violation of the Petitioner's double jeopardy protection under the United
States and Pennsylvania Constitutions.
14. That the suspension of the Petitioner's privileges to drive in the Commonwealth of
Pennsylvania violates the Petitioner's rights to equal protection and due process in that as a
Pennsylvania resident had she been charges with the offense of driving while intoxicated in the
Commonwealth of Pennsylvania she would have been permitted access and entry into one of any
number of driving educational programs, including but not limited to ARD, and as a result would
be entitled to a reduced suspension. By reasons of the Department of Transportation attempt to
suspend Petitioner's driving privileges in the Commonwealth as a result of his New Jersey
conviction the Petitioner has been denied access into programs which others similarly situated
would be entitled to enter. The dissimilar treatment of Petitioner in comparison with other
commonwealth of Pennsylvania residents constitute a violation of Petitioner's constitutional rights
to equal protection of the laws as guaranteed by the Pennsylvania and United States
5
Constitutions.
15. The Department of Transportation seeks to suspend Petitioner's Drivers License for
an offense in the State of New Jersey which is not equivalent to Section 3731 of the Pennsylvania
Vehicle Code for the reason that in the State of New Jersey the Petitioner was denied his right to
a jury trial on the charge of Driving Under the Influence, which right would be guaranteed under
the Pennsylvania Constitution, and other defenses available in the State of Pennsylvania. Further
the New Jersey statute allows a defendant to be convicted where his blood alcohol level is above
.10, which section of the Pennsylvania statute has bee declared unconstitutional. Moreover, the
New Jersey statute allows a defendant to be convicted for allowing another to drive a vehicle
while under the influence. Finally, the New Jersey statute does not require that a defendant be
incapeable of safe driving. Therefore, suspension of the Petitioner's driving privileges for an
offense committed in the State of New Jersey which is substantially dissimilar to that offense in
the Commonwealth of Pennsylvania denies the Petitioner due process and equal protection of the
law and his right to a jury trial as guaranteed by the Pennsylvania Constitution.
16. 75 PACS Section 1532 (b) does not permit a Pennsylvania one year license suspension
for a violation of offense "equivalent to" 75 PA CS Section 3731, therefore petitioners suspension
appeal must be sustained.
17. Petitioner entered his guilty plea in the New Jersey Municipal Court with Civil
Reservation pursuant to New Jersey Rule of Criminal Procedure 3:9-2 precludes the use of
Petitioners guilty plea in this civil proceeding and therefore, Petitioners drivers license suspension
appeal must be granted. An order to that effect was entered by the New Jersey Trial Court.
18. Article Three of the Compact requires that the State reporting the violation "describes
the violation specifying the section of the statute, code or ordinance violated." The Petitioner
CO
04
04
contends that the offenses for which the Appellant was convicted in New Jersey was not
"substantially similar" to the Pennsylvania DUI statute as required by the Compact and that the
offense for which she was convicted was not sufficiently described.
19. The conduct for which the appellant was convicted in the State of New Jersey did
not rise to the level of rendering the appellant incapable of safe driving so as to permit the
suspension of the appellant's driving privileges pursuant to the Driver's License Compact.
20. The Pennsylvania statute allowing a conviction of a driver for driving with a blood
alcohol content of. 10 or greater has been held unconstitutional.
21. The report from the State of New Jersey lacks the specificity required under the
Driver's License Compact as enacted into Pennsylvania law.
Wherefore, Petitioner requests a hearing de novo forthwith and further requests that this
Court set aside the Suspension Order of her drivers license.
Respectfully submitted,
MICHAEL FARM
\ A
Dated: Z torney for Petitioner
? b I ,?
7
1?1
VERIFICATION
Susan L. Mease, being duly sworn according to law, deposes and says that she is the
Appellant in the above entitled matter, that she is authorized by lawto make this Verification and
that the facts set forth in the foregoing pleading are true and correct to the best of her knowledge,
information and belief.
This statement is made subject to penalties of 18 Pa. C. S. Section 4904 relating to unsworn
falsification to authorities.
us . ease
DATED: ?UIZG/y?
9
CERTIFICATE OF SERVICE
1, J. Michael Farrell, Esquire, hereby certify that on this Vday999, a true and
correct copy of the foregoing Amended Petition to Appeal Driver License Suspension has been
served upon the Department of Transportation, Bureau of Driver Licensing, Commonwealth of
Pennsylvania, by depositing same in the U.S. Mail, postage pre-paid, certified, return receipt
requested, addressed as follows:
Pennsylvania Dept. Of Transportation
Office of Chief Counsel
Commonwealth of Pennsylvania
Room 103
Transportation and Safety Building
Harrisburg, PA 17120
MICHAEL FARREI
torney for Petitioner
9
AUG-05-1999 17:18
4
717 766 2173 P,01
4? -,,/ ^,Z,t /
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION ?. a.. ell
Bureau of Driver Licensing
Harrisburg, PA 17123
AUGUST 02, 1999
SUSAN L MEASE 992076102689431 001 ?JO
1110 COCKLIN STREET 07/26/1999 s
MECHANICSBURG PA 17055 18120017
05/04/1958
-717 y6G - 6?ti z
j Dear Motorist:
Section 1501 of the Vehicle Code requires the Department to
treat certain out of state convictions as though they had
occurred in Pennsylvania. Therefore, as a result of the
Department receiving notification from NEW JERSEY of your
conviction on 07/07/1999 of an offense which occurred on
05/02/1999, 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 1532B of the Vehicle Code.
The effective date of Suspension is 09/06/1999, 12:01 a.m.
I In order to comply with this sanction you are required to
return any current driver's license, len?ner's permit and/or
temporary driver's license (camera card) in your possession
no later than the effective date listed. If you cannot
comply with the requirements stated above, you are required
to submit a DL16LC Form or a sworn affidavit stating that
you are aw re of the sanction against your driving privi-
- °-
F . ' ldge. Failure to comply" with this none sFa1T"result in
this Bureau referring this matter to the Pennsylvania State
Police for prosecution under SECTION 1571(a)(4) of the Ve-
hicle Code.
Although the law mandates that your driving Privilege is
under Suspension even if YOU do not surrender your license,
Credit will not begin until all current driver's license
product(s), the DL16LC Form, or a letter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE-
MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS
RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY.
OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS
SANCTION.
RUG-05-1999 17:19
992076102689431
do
F,
717 766 2173 P.02
Please see the enclosed application for restoration fee in-
formation.
You will be notified of any outstanding restoration re-
quirements approximately 30 days before the eligibility date
of the restoration of your driving privilege. You must
follow those instructions very carefully in order to have
Your driving privilege restored.
APPEAL , ...
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date of this letter, AUGUST 02, 1999. if you file an appeal
in the County Court, the Court will givP you a time-stamped
certified copy of the appeal. Send this time-stamped cer-
tified copy of the appeal by certified mail to:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR, RIVERFRONT OFFICE CENTER
HARRISBURG, PA. 17104-2516
i
i
i
-'r$Fa' i.3?LA4o€', :L.-.1?' .C1..T^ •.
Department of Transportation
Bureau of Driver Licensing
P.O.-Box 68693
Harrisburg, PA 17106-8693
I
Sincerely,
Rebecca L. Bickley, Director
Bureau of Driver Licensing
-.._.LNEnRMATJ_ON (7:00
IN STATE
OUT-OF-STATE
TOD IN STATE
TOO OUT-OF-STATE
AM TO 9;00 PM)
1-800-932-4600
717-391-6190
1-800-228-0676
717-391-6191
TOTAL P.02 /'
4 , y .- p Q
v
04%
J. MICHAEL FARRELL, ESQ.
I.D. NO. 33803
718 Arch Street; Ste. 4025
Philadelphia, PA 19106
ATTORNEY FOR PLAINTIFF
SUSAN L. MEASE
1110 COCKLIN STREET
MECHANICSBURG, PA 17055
VS.
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Commonwealth of Pennsylvania
Harrisburg, PA 17123
COURT OF COMMON PLEAS
CUMERLAND COUNTY
DOB: 5-4-98
18120037 PA
NO. 99-5259
Civil Term
AND NOW, this fourteenth day of February, 2000, it is hereby ORDERED and
DECREED that the matter of Susan L. Mease vs. the Department of Transportation be held for
hearing on April 14, 2000 at 8:30 am.
BY THE COURT:
Q J.I
RKe
Q
.n?
r1
Ah?
SUSAN L. MEASE
V.
DEPARTMENT OF
TRANSPORTATION
BUREAU OF DRIVER
LICENSING
a
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5259 CIVIL TERM
CIVIL ACTION - LAW
AND NOW, this 2DIH day of APRIL, 2000, at the request of Attorney Farrell the
hearing scheduled for April 14, 2000, is rescheduled for Friday, April 28, 2000, at 9:00
a.m. in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa.
No further continuance will be granted.
J. Michael Farrell, Esquire
For Susan Mease
George Kasbusk, Esquire
Department of Transportation
:sld
By the
Edward E. Guido, J.
E.
? / teaj -f?
9-120-00
13
4
L-1
SUSAN L. MEASE
V.
DEPARTMENT OF
TRANSPORTATION
Bureau of Driver Licensing
Commonwealth of Pennsylvania
Harrisburg, Pennsylvania 17123
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5259 CIVIL TERM
CIVIL ACTION - LAW
IN R LICENSE SUSPENSION APPEAL
BEFORE GUIDO. J.
ORDER OF COURT
AND NOW, this /S* day of NOVEMBER, 2000, for the reasons set forth
in the accompanying opinion, the appeal of Susan L. Mease is SUSTAINED and the
action of the Department suspending her operating privileges is REVERSED.
By
the Co
Co
Edward E. Guido, J.
J. Michael Farrell, Esquire
718 Arch Street, Suite 402 S
Phila., Pa. 19106
For the Appellant
George Kabusk, Esquire
1101 South Front Street
Riverfront Office Center
Harrisburg, Pa. 17104
For the Dept. of Transportation
:sld
L? 11611?
R?s
114
,,...,
;.,. >??
U.. ? ? !ii
`/ 1rJ
#4
SUSAN L. MEASE
V.
DEPARTMENT OF
TRANSPORTATION
Bureau of Driver Licensing
Commonwealth of
Pennsylvania
Harrisburg, Pennsylvania
17123
a
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5259 CIVIL TERM
CIVIL ACTION - LAW
Susan L. Mease ("Appellant") has filed this timely appeal from the action of the
Pennsylvania Department of Transportation ("Department") suspending her operating
privileges for one year for an out of state drunk driving conviction pursuant to the
Driver's License Compact ("Compact").' An evidentiary hearing was held at which
neither party presented testimony. However, through the stipulated admission of exhibits
and by agreement of the parties, the following facts were established:
• Appellant is a licensed Pennsylvania driver.
• On July 7, 1999, she was convicted in New Jersey of operating a motor
vehicle under the influence of alcohol in violation of N.J. Stat. Ann. § 39:4-
50(a).
75 Pa. C.S.A. § 1581.
15
N0.99-5259 CIVIL 04
r'?1
• The conviction arose from appellant's plea of "guilty with civil reservation" to
violating the New Jersey statute.
• The factual basis for the plea was that Appellant's blood alcohol content was
above a .10% at the time the breathalyzer test was administered.
• New Jersey officials notified the Department of the conviction pursuant to
Article III of the Compact.
• The Department notified Appellant that the New Jersey offense was
equivalent to a violation of 75 Pa. C.S.A. § 3731 which required her driving
privileges to be suspended for I year pursuant to 75 Pa. C.S.A. § 1532B.
The parties were given the opportunity to brief their respective positions, which
they have done. This matter is now ready for disposition.
Appellant has raised numerous arguments attacking the propriety of having her
license suspended under the Compact as a result of the New Jersey conviction. All of her
arguments, save one, have recently been addressed and resolved against her by our
appellate courts. See COm. of Pennsylvania Den't of Transn v McCafferty, 758 A.2d
1 155 (Pa. 2000). Bourdeev v. Com. Dent of TranspBureau of Driver Licensing. 755
A.2d 59 (Pa. Commw. 2000). However, Appellant's remaining argument is much more
problematic.
The New Jersey statute under which appellant was convicted imposes criminal
sanctions upon any "person who operates a motor vehicle while under the influence of
intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor
vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the
16
NO. 99-5259 CIVIL
1A1
defendant's blood ..." N. J. S. A. § 39:4-50(a). Article IV of the Compact provides, in
relevant part, as follows:
Effect of Conviction
(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 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 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 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.A. § 1581 IV(a)(2),(c). (emphasis added). Appellant contends that the New
Jersey statute under which she was convicted is not "of a substantially similar nature" to
Article IV(a)(2) of the Compact.
In the recent case of Petrovick v Com Dedt of Transn Bureau of Driver
i.i n in , 559 Pa. 614, 741 A.2d 1264 (1999), the Pennsylvania Supreme Court clarified
the appropriate analysis under Article IV of the Compact. It held as follows:
[T]he relevant inquiry is whether each state's drunk driving
provisions are "of a substantially similar nature" to Article IV(a) (2) of the
Compact.
[T]he 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 [the reporting state] offense is "of a
I'7
NO. 99-5259 CIVIL 0%
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 conviction.
Id. at 618-620, 741 A.2d at 1266-1267. (footnote omitted). We turn now to apply this
two pronged analysis to the case at bar.
Pennsylvania' Statute
The relevant portions of the Pennsylvania driving under the influence statute are
as follows:
§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined.-A person shall not drive, operate or be in actual
physical control of the movement of a vehicle in any of the following
circumstances:
(1) While under the influence of alcohol to a degree which renders the
person incapable of safe driving.
(4) While the amount of alcohol by weight in the bold of:
(i) an adult is 0. 10% or greater ...
75 Pa. C.S.A. § 3731(a)(1)(4). While the Petrov ick Court specifically held that the
provisions of Section 3731(a)(1) of the statute are substantially similar to the provisions
of Article IV(a)(2),2 the conduct for which Appellant was convicted in New Jersey was
akin to the per se offense contained in Section 3731(a)(4). Therefore, we must determine
whether Section 3731(a)(4) is of a substantially similar nature to the Compact.
There are several Pennsylvania appellate decisions which seem to indicate that the
' Furthermore, numerous Pennsylvania appellate Courts have specifically held that N. J. S.A. § 39.4-50(a)
is substantially similar to 75 Pa. C.S.A. § 3731(a). See Koterba v. Com. Dept. of Tramp- Bureau of
Driver Licensing,, 736 A.2d 761 (Pa. Commw. 1999), Scott Y. Com. Dept. of Transit., Bureau of Driver
i nsin , 730 A.2d 539 (Pa. Commw. 1999), and Seibert v. Com. Dep't. of Tramp.. Bureau of Driver
Licensing. 715 A.2d 517 (Pa. Comm. 1998). In each case the Commonwealth Court upheld the suspension
of the licensee's driving privilege under the Compact. However, all of the above cases were decided before
Petrovick• Therefore, the focus of each court was on comparing the Pennsylvania and New Jersey Statutes,
rather than each state's statute to Article W(a)(2) of the Compact
/9
NO. 99-5259 CIVIL ^ do
conduct prohibited by Section 3731(a)(4) of the vehicle code is substantially similar to
the "under the influence of intoxicating liquor ... to a degree which renders the driver
incapable of safely driving. , . " language of Compact Article IV (a)(2). Our Supreme
Court has recognized that the Pennsylvania legislature clearly views "driving with a
0.10% level of alcohol in the blood to be inherently unsafe." _CommQnwealth v
Robertson, 555 Pa. 72, 80, 722 A.2d 1047, 1051 (1999). The preceding language was
quoted by the Court in Ellis v Com Den't of Transn Bureau of Driver t ire , 732
A.2d 1290 (Pa. Commw. 1999) which went on to state:
Further, in Commonwealth v Mik ,Ia , 504 Pa. 244, 250-251, 470 A.2d
1339, 1342 (1983) that court determined that 75 Pa. C.S. § 3731 (a)(4)
rationally and reasonably furthers the Commonwealth's compelling
interest in protecting highway travelers against drunk drivers, and quoted
with approval the American Medical Association policy statement that
blood alcohol content of 0.10% should be accepted as prima facie
evidence of intoxication and testimony that an individual with 0.10%
blood alcohol content is incapable of safe driving.
id• at 1293. Therefore, we conclude that the provisions of Section 3731(a)(4) of the
Pennsylvania Vehicle Code are substantially similar to Article IV(2)(a) of the
Compact.3
In view of our conclusion that Pennsylvania's statute prohibiting driving a vehicle
with a BAC above a .10% is substantially similar to Article IV(a)(2), it would seem
logical that the almost identical language in N.J. S.A. § 39:4-50(a) would also be
substantially similar to the Compact. However, since Petrovick, supra, "the relevant
inquiry is not only what the out of state DUI statute says, but how it is interpreted and
applied." Hunt v. Dent of Transn Bureau of Uri= i nsinn, 750 A.2d 922, 924 (Pa.
See also Com Dent of Transn Unreal of Driver t ' y v Fste , 756 A.2d 84, (Pa. Commw. 2000).
/9
NO. 99-5259 CIVIL A A
Commw. 2000). Therefore, we must turn to the New Jersey cases to determine the issue
at hand.
The conduct prohibited by Article IV(a)(2) is "driving a motor vehicle while
under the influence of intoxicating liquor ... to a degree which renders the driver
incapable of safely driving...". It is clear that all of the elements of the proscribed
conduct must occur at the same time; i.e., at the time of driving. It is equally clear that
the interpretation and application of the .10% BAC provision of the New Jersey statute
does not require that the elements occur at the same time.
The New Jersey Supreme Court has specifically held that the defendant's BAC
level at the time of driving is irrelevant. As it stated in State v. Tischio, 107 N.J. 504,
527 A.2d 388 (1987), "it is the blood-alcohol level at the time of the breathalyzer test that
constitutes the essential evidence of the offense." Id. at 506, 527 A.2d at 389. It went on
to hold that "extrapolation evidence is not probative of this statutory offense and hence is
not admissible." Id.
The conduct prohibited by the relevant provision of the New Jersey statute, as
interpreted by Tischio, does not even require the driver to be incapable of safely driving
at the time of driving. To the contrary, the prohibited conduct under this section is taking
the wheel after having imbibed sufficient quantities of alcohol to reach .10% BAC, even
if that level is reached after the driving has ended. As the Tischio Court noted:
Those who drive after drinking enough alcohol to ultimately result in a
blood-alcohol concentration of .10% or greater are a menace to themselves
and to all others who use the roadways of this State. There is no rational
reason why prosecution of these individuals must depend upon the entirely
fortuitous circumstances of the time they were apprehended by the police.
N0.99-5259 CIVIL 04
[S]uch an interpretation would allow drunk drivers - "moving time
bombs" - to escape prosecution simply because, at the time of the stop,
their blood-alcohol had not yet reached the proscribed level.
Moreover, there will undoubtedly be those who have imbibed the
prohibited quantity of alcohol and yet, at the time of arrest, not
display sufficient symptoms to warrant a finding of guilt under the
first provision of the statute. The essential point is that somewhere
"down the road" disaster may result. By making a.10% blood-alcohol
level a per se offense, the Legislature has sought to remove these
drivers from the State's roadways before the "potential danger
lbecomesl a real one."
107 N. J. at 519-520, 527 A.2d at 396. (citations omitted) (emphasis added)
Since the New Jersey statute does not require a showing that Appellant drove her
vehicle at a time that she was under the influence of alcohol and incapable of safe
driving, it cannot be considered to be substantially similar to Article IV (a)(2) of the
Compact.
We are not unmindful of the 1998 amendment to the Compact which provides in
relevant part:
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 3731 shall not be a basis for determining that the party
state's offense is not substantially similar to section 3731 for purposes of
Article IV of the compact.
75 Pa. C.S.A. § 1586. We are also aware of Cum.. D n't, of Tramp Bureau of Driver
Licensing v Ester, 756 A.2d 84 (Pa. Commw. 2000) in which the Commonwealth Court
relied upon the amendment to sustain the license suspension of a driver convicted under a
North Carolina statute requiring a blood alcohol content of only 0.08%. The
NO. 99-5259 CIVIL
r
Commonwealth Court noted that "different blood alcohol levels are clearly different
degrees of impairment." Id. at 86.
However, E= can be distinguished from the case before us. The New Jersey
Statute does not require a different blood alcohol content, but rather requires different
conduct 4 The conduct prohibited under the New Jersey Statute is driving a motor
vehicle after having consumed sufficient alcohol to reach the 0.10% BAC level. It does
not matter whether the level is reached after the driving ceases and, more importantly, it
does not matter whether or not the driver is capable of safely driving at the time of
driving. Therefore, the conduct proscribed by the New Jersey statute cannot be
interpreted to be substantially similar to the conduct described in Article IV(a)(2) of the
Compact.
For the reasons set forth above, we must agree with the Appellant that the
Department may not suspend her license as a result of the New Jersey conviction.
Therefore, we will enter the order that follows:
AND NOW, this 1.2 day of NOVEMBER, 2000, for the reasons set forth in the
accompanying opinion, the appeal of Susan L. Mease is SUSTAINED and the action of
the Department suspending her operating privileges is REVERSED.
By the Court,
/s/ Edward Guido
Edward E. Guido, J.
4 While the North Carolina and Pennsylvania legislatures may disagree on what BAC level makes a driver
"incapable of safe driving," they have each proscribed driving with the BAC levels they feel to be unsafe.
aa.
NO. 99-5259 CIVIL
J. Michael Farrell, Esquire
718 Arch Street, Suite 402 S
Phila., Pa. 19106
For the Appellant
George Kabusk, Esquire
1101 S. Front Street
Riverfront Office Center
Harrisburg, Pa. 17104
For the Dept. of Transportation
:sld
9
33
a
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
SUSAN L. MEASE } IN THE COURT OF COMMON PLEAS
Appellee OF CUMBERLAND COUNTY, PA
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant } NO. 99-5259 CIVIL TERM
Notice of Appeal
Notice is hereby given that the Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania
from the order that was filed in this matter on November 15, 2000. This order is from a statutory appeal and
cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been
given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto.
W.a Z14
TIMOTHY P. WILE
Assistant Counsel In-Charge
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
A
'4 a
.0 1 COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
7( 17) 787-2830
SUSAN L. MEASE
Appellee
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
vs.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
NO. 99-5259 CIVIL TERM
Request for Transcript
A notice of appeal having been filed in this matter, the official court reporter is hereby
requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922.
Prepare only the original for inclusion in the record as the Appellant, Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the
transcript.
TIMOTHY P. WILE
Assistant Counsel In-Charge
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
0
O*ff
PYS510 Cumberland County Prothonotary's Office Page
,1999-05259 6$Civil Case Inquiry 40
MEASE SUSAN L (vs) DEPARTMENT OF TRANSPORTATION
Reference No..: Filed........: 8/27/1999
Case Type..... • APPEAL - LICENSE SUSP Time.........:
Judgmentgned: : 2;09 .00 Judge Assigned: Execution Date 0/00/0000 D.i. Jury 'T'rial....
sposed DPSC.t
Case Comments - -- - - - - - - - - Dis used Date. 0/00/0000
Hig er Crt 1.:
Higher Crt 2.:
General Index AtLor.ney Info
ME:ASE SUSAN 1, APPELLANT FARRELL J MICHAEI.
1110 COCKLIN STREET
MECHANICSBURG PA L7055
DEPARTMENT OF TRANSPORATION APPELLEE
COMMONWEALTH OF PENNSYLVANIA
BUREAU OF DRIVE. LICENSING
HARRISBURG PA 17123
* Da Le Entries
FIRST ENTRY
8/27/1999 PETITION TO APPEAL FROM SUSPENSION OF DRIVERS LICENSE
----- -------- - ----- -- --------- --
9/03/1999 RULE TO SHOW CAUSE - DATED 09-02-99 - DEPT OF TRANS IS DIRECTED TO
SHOW LE RETURNABLET11-5-99EATR QQCR5E8:30AMERE
RU NO SUSPENSION CANCELLATION
OR REVOCATION SHALL BE IMPOSED UPON SUSAN L MEASE UNTIL FILAL
DETERMINATION OF THIS MATTER - BY THE COURT J GUIDO
-----------------------------------------------------
2/24/2000 ORDER - DATED 2/14/00 - HEARING ON 4/14/00 AT 8:30 AM
BY EDWARD E GUIDO J COPIES MAILED 2/25/00
-------------------------------------------------------------------
4/20/2000 ORDER OF COURT - DATED 4/20/00 - HEARING ON 4/14/00 IS RESCHEDULED
FOR 4/28/00 AT 9:00 AM CR 5 CUMBERLAND COUNTY COURTHOUSE CARLISLE
PA NO FURTHER CONTINUANCE WILL BE GRANTED BY EDWARD E GUIDO J
COPIES MAILED 4/20/00
------------------------------------------------------------------
11/16/2000 ORDER OF COURT - DATED 11/15/00 - IN RE LICENSE SUSPENSION APPEAL -
FOR THE REASONS SET FORTH IN THE ACCOMPANYING OPINION THE APPEAL OF
SUSAN L ACTION REVERSED E DEPARTMENT
COURT
EDWARD E GUIDO J COPIES MAILED 11/16/00
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
+#+*++*+*##*##+*+##*****###*#*****#****+#*##*###+**#***#**+#*#+**++**+#**+*+#***
* Escrow Information
* Fees h Debits Bec Bal Pmts/Adl End Bal
APPEAL. L.,IC SUSP 35.00 35.00 • 00
'PAX ON APPEAL.
:iE:'1'TLI:MI NT 50 50 00
JCP FEE 5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
****+#+#*####*##**####*#***#**++**#**#*#++##**##***#**##*+#+**+**##+*****#+*****
* End of Case Information
TRUE COPY FROM RECORD
in Testhnony whereof, I here umo set my hand
and ttM --e_)_of ssM Court at WNW P&
?F? f ca ?ry/i . #w A/22`?l
" • Prothor(ogrv?
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P, WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
I I OI SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
SUSAN L. MEASE
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 99-5259 CIVIL TERM
Proof of Service
I hereby certify that I have on this day and date duly served a true and correct copy of the
foregoing documents upon the persons and in the manner indicated below, which service satisfies the
requirements of Pa. R.A.P. 121:
First Class Mail; Postage Pre-Paid;
Addressed as Follows:
Judge Edward E. Guido
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
Court Reporter
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
/-p '? /a
TIM HY P. WILE
Attorney for Department of Transportation
Date: December 5, 2000
J. Michael Farrell, Esquire
Attorney for Appellee Mease
718 Arch Strret, Suite 402 S
Philadelphia, PA 19106
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Commonwealth Court of Pennsylvania
December 12, 2000
RE: Mease v. DOT
No.: 2752 CD 2000
Agency Docket Number: 99-5259
Filed Date: December 7, 2000
Notice of Docketing Appeal
A Notice of Appeal, a copy of which is enclosed, from an order of your court has been
docketed in the Commonwealth Court of Pennsylvania. The docket number in the
Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number
must be on all correspondence and documents filed with the court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of
Appeal has the effect of directing the Court to transmit the certified record in the matter to
the Prothonotary of the Commonwealth Court.
The complete record, including the opinion of the trial judge, should be forwarded to the
Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do
not transmit a partial record.
Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and
transmission of the record.
The address to which the Court is to transmit the record is set forth on Page 2 of this
notice.
Notice to Counsel
A copy of this notice is being sent to all parties or their counsel indicated on the proof of
service accompanying the Notice of Appeal. The appearance of all counsel has been
entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the
date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant
to Pa. R.A.P. 907 (b).
Appellant or Appellant's attorney should review the record of the trial court, in order to
insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning
Ordinance must accompany records in Zoning Appeal cases).
The addresses to which you are to transmit documents to this Court are set forth on
Page 2 of this Notice.
If you have special needs, please contact this court in writing as soon as possible
Attorney Name Party Name Party Type
Harold Cramer, Esq. Bureau of Driver Licensing Appellant
J. Michael Farrell, Esq. Susan L. Mease Appellee
Timothy Peter Wile, Esq. Bureau of Driver Licensing Appellant
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CO1N1MON%A'EALTI1 OF PENNSYLVANIA
DEPARTM ENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
a
n 016M
(717) 787-2830
SUSAN L. MEASE
Appellee
IN THE COURT OF COMMONTT PLEAS
OF CUMBERLAND COUNTY, PA
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
NO. 99-5259 CIVIL
Notice of Appeal
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Notice is hereby given that the Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania
from the order that was filed in this matter on November 15, 2000. This order is from a statutory appeal and
cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been
given under Pa. R.C.P. 236. A copy of the docket entries are attached he to.
.;4 Z14
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TIMOTHY P. WILE
Assistant Counsel In-Charge
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
r_ my hand
Pa.
c:, cr Qe<< ...., a
Prothonotary
aq
SUSAN L. MEASE,
V.
Appellee
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF MOTOR VEHICLES,
Appellant
46
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5259 CIVIL TERM
AND NOW, this 31ST day of JANUARY, 2001, Appellant is
directed to file a concise statement of matters complained of on
appeal within fourteen (14) days of todays date in accordance
with Rule of Appellate Procedure 1925(b).
By the Court,
V ^
E. G id J.
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Timothy P. Wile, Esquire r'dward
Dept. of Transportation
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SUSAN L. MEASE,
Appellee
V.
CE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PA,
DEPT. OF TRANSPORTATION,
BUREAU OF DRIVER LIC.,
Appellant NO. 99-5259 CIVIL TERM
Proceedings held before the
Honorable EDWARD E. GUIDO, J.
Cumberland County Courthouse, Carlisle, Pennsylvania
on Friday, April 28, 2000, commencing at 9:00 a.m.
in Courtroom Number Five
APPEARANCES:
J. Michael Farrell, Esquire
For the Appellee
George Kabusk, Esquire
For the Appellant
30
(Whereupon, Commonwealth's Exhibit No. 1 was
marked for identification.)
THE COURT: Good morning.
MR. FARRELL: Good morning, Your Honor.
THE COURT: Ready to proceed, Mr. Kabusk?
MR. KABUSK: Yes, Your Honor. Good morning,
Your Honor. This is the case of Susan L. Mease versus
Commonwealth of Pennsylvania, Department of Transportation,
Case No. 99-5259. What's been marked as Commonwealth's
Exhibit No. 1 consists of 3 sub-exhibits. I provided a
copy to Mr. Farrell.
Sub-exhibit No. 1 is the official notice of
suspension dated and mailed 8/2/99, effective 9/6/99, which
informs the motorist, Susan L. Mease, operator's number
18120037, that section of the Vehicle Code requires the
Department to treat certain out of state convictions as
though they had occurred in Pennsylvania.
Therefore, as a result of the Department's
notification from New Jersey of her conviction on 7/7/99 of
an offense which occurred on 5/2/99, which is equivalent to
a violation of 3731 of the Pennsylvania Vehicle Code,
Driving Under the Influence, her driving privileges were
being suspended for a period of one year as mandated by
Section 1532B of the Vehicle Code.
Sub-exhibit 2 is the record of conviction, out of
2
31
1 state driver violations report received by the Department,
2 the listing authority, of the state of New Jersey,
3 operating under the influence of liquor or drugs, date of
4 violation 5/2/99, date of conviction 7/7/99.
5 I direct your attention to sub-exhibit 2 as to
6 the last entry there, which would be on the bottom,
7 indicating the motorist license number, 18120037; driver's
8 name, Susan L. Mease; date of birth 5/4/58; date of
9 violation, 5/2/99; New Jersey statute 39:004-050A;
10 conviction date, 7/7/99; under description which would be
11 operating under the influence of liquor or drugs.
12 Sub-exhibit 3 is the driving record which appears
13 in the file of the Defendant, Susan L. Mease, 18120037,
14 date of birth 5/4/58, in the Bureau of Driver Licensing,
15 Harrisburg, Pennsylvania. I move for the admission of
16 Commonwealth's Exhibit No. 1.
17 MR. FARRELL: Your Honor, I'd stipulate to
18 the admissibility and authenticity of the document for the
19 record; however, Your Honor, based upon the contents of our
20 petition, we dispute the factual and legal conclusions
21 drawn in the document, particularly the letter of August
22 2nd, 1999, indicating that Ms. Mease's conviction is the
23 equivalent of the Pennsylvania Code, Pennsylvania offense
24 contained in 3731.
25 We are also disputing the authority of the
3 3a
a
1 Commonwealth of Pennsylvania, Department of Transportation,
2 to suspend Ms. Mease's driving privileges based upon the
3 offense of May 2nd, 1999, and the conviction of July 7th,
4 1999.
5 THE COURT: Okay. Exhibit No. 1 is
6 admitted.
7 (Whereupon, Commonwealth's Exhibit No. 1 was
8 admitted into evidence.)
9 THE COURT: Do you have anything else, Mr.
10 Kabusk?
11 MR. KABUSK: Nothing further, Your Honor.
12 THE COURT: Do you have any defense?
13 MR. FARRELL: Yes, Your Honor. On behalf of
14 Ms. Mease, I would offer -- I've provided the Department's
15 attorney with a copy of the Certification of Municipal
16 Court Record from the municipal court of New Jersey
17 indicating that Ms. Mease pled guilty on July 7th, 199, for
18 a date of offense of May 2nd of 1999 to the charge
19 contained in New Jersey Statute Annotated 39:4-50, that she
20 pled guilty with a civil reservation, and, Your Honor, I
21 would offer this as Plaintiff's Exhibit No. 1.
22 THE COURT: Any objection, Mr. Kabusk?
23 MR. KABUSK: No objection. I've seen it. I
24 don't have a copy.
25 THE COURT: We'll get a copy made.
4
33
? A
1 Petitioner's Exhibit No. 1 is admitted.
2 (Whereupon, Petitioner's Exhibit No. 1 was
3 marked for identification and admitted into
4 evidence.)
5 MR. FARRELL: Your Honor, with respect to
6 other evidence, I can either present the very brief
7 testimony of Ms. Mease or make an offer of proof that on
8 May 2nd of 1999 Ms. Mease was arrested for the offense as
9 indicated in the Department's records, that she pled guilty
10 to that offense in July of 1999, and that she pled guilty
11 with a civil reservation.
12 THE COURT: What is with civil reservation?
13 MR. FARRELL: With civil reservation, under
14 New Jersey law indicates that if you enter a plea of
15 guilty, the municipal court of New Jersey has the authority
16 to accept your guilty plea with the agreement and by law
17 that it will not be used in any civil proceeding of any
16 kind at any time in the future.
19 A number of courts -- and I'd ask Your Honor the
20 opportunity to brief this issue -- there are a number of
21 courts in the Commonwealth of Pennsylvania -- the issue, I
22 can admit to Your Honor, has not been addressed by the
23 Commonwealth Court of Pennsylvania yet.
24 THE COURT: Well, I don't have any problem
25 with giving you the time to brief this, Mr. Farrell, but
5
3y
0
1 this petition was filed on September 2nd, 1999.
2 MR. FARRELL: Your Honor, I don't need more
3 than two days to get you a brief. I can get you a brief
4 right away. That's the major issue at this time, the civil
5 reservation issue.
6 There's also another issue which deals with the
7 recent Pennsylvania Supreme Court of Patrovik, which
8 indicates that we're not necessarily dealing any longer
9 with the civil similarity between the two state's statutes
10 but the similarities of each state's statutes to the
11 contents and the language contained i n the driver license
12 capacity.
13 The other -- the only other offer of proof I
14 would make, I can do it with her testimony or with -- the
15 stipulation would be that Ms. Mease pled guilty to the
16 offense of driving while her blood alcohol content was .10
17 or greater at the time of her testing.
18 THE COURT: Okay. You're saying that she
19 did plead guilty to that?
20 MR. FARRELL: She pled guilty to that with
21 civil reservation. She pled guilty in New Jersey to a
22 blood alcohol content -- driving with a blood alcohol
23 content above a .10 percent or greater with civil
24 reservation -- with a blood alcohol being at the time of
25 testing.
6
1 THE COURT: Are you prepared to stipulate to
2 that or do you want to have her testify to that?
3 MR. KABUSK: I would stipulate to that. If
4 I could pass up the exhibit.
5 MR. FARRELL: Your Honor, as I indicated, I
6 can have a brief to you -- I could have it prepared by the
7 end of the day, actually, and have it in the mail probably
8 by Monday.
9 THE COURT: Okay. Anything else to put on
10 the record?
11 MR. KABUSK: Nothing further.
12 THE COURT: And now, today's date, the
13 appellant is directed to file a brief by close of business
14 -- to be postmarked by close of business on Monday, May 2,
15 2000. The appellee, Department of Transportation, is
16 directed to file a reply brief -- how much time do you
17 need, Mr. Kabusk?
18 MR. KABUSK: Not very long, Your Honor. I
19 have it prepared already.
20 THE COURT: Postmarked by close of business
21 on Friday, May 5, 2000. We will then render a decision
22 after review of the briefs.
23 MR. FARRELL: Thank you, Your Honor.
24 (Whereupon, the above proceeding was
25 concluded.)
7
36
a
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
the same.
u ra ? 1-I of (1,1r-
Laura F. andley
Official Court Reporter
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and
directed to be filed.
a b o?
Date
dward E. Guido, J.
37
rr" _
J?
DL-326 (9195)
CERTIFICATION
DATE: September 16, 1999
I hereby certify that Rebecca L. Bickley, Director of the Bureau of Driver Licensing of the
Pennsylvania Department of Transportation, is the legal custodian of the Driver License records of the
Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal
custody of the original or microfilm records which are reproduced in the attached certification.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF
THIS DEPARTMENT THE DAY AND YEAR AFORESAID.
I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND
CORRECT CERTIFIED PHOTOSTATIC COPY OF:
1) Official Notice of suspension dated & mailed 08/02/99, effective 09/06/99; 2) Record of
Conviction Detail, Out of State Driver Violations Report received by the Department from the
licensing authority of the State of NEW JERSEY, operating under the influence of liquor or drugs,
date of violation 05/02/99, and date of conviction 07/07/99, and 3) Driving Record, which appears
in the file of the defendant SUSAN L. MEASE, operator's no. 18120037, date of birth 05/04/58,
in the Bureau of Driver Licensing, Harrisburg, Pennsylvania.
CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9,
1976, P.L. 586, as amended, 42 Pa.C.S. §§6103 and 6109.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR
AFORESAID. (3z, ?. wj? SEAL
REBECCA L. BICKLEY, DI TOR
BUREAU OF DRIVER LICENSING
ONWEALTH'S
XHIBIT
E4izico
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
AUGUST 02, 1999
SUSAN L MEASE 412076102661431 001
1110 COCKLIN STREET 07/26/1444
MECHANICSBURG PA 17055 16120037
05/04/1456
Door Motorist,
Section 'Sal of the Vehicle Code requires
treat certain out of state convictions asthe Department to
though they had
occurred in Pennsylvania. Therefore, as a result of the
conviction onceiving
07/07/1999notification of
offense Nwhich JERSEY eon
05/02/1999, which is equivalent to a violation of Section
5
driving privilege 711 of the Pa. Vehicle Code, DRIVING UNDER INRLUENCE, your
Is SUSPENDED being f
YEAR(S), as Mandated by Section 15328 of the Vehicle Code.l
The affaotiVe date of suspension to 09/0655999, 12101 a.m. sy
in order to comply with
return this sanction you are required to
any current driverts license, learnar's permit and/or
temporary driver's license (camera card) in your possession
no later than the effective date listed. If you cannot
comply with the requirements stated above, you are required
t
you are aware o submit a DL16LC Form or a sworn affidavit stating that
o t sanction against Your driving
ISO*. Failure to Comply with this notieashall resultvin
this Bureau referring this utter to the Pennsylvania State
Police for Prosecution under SECTION 1571(s)(16) of the Ve-
hicle Code.
Although the law mandates that your driving privilege is
under suspension even if You do not surrender your license,
Credit will not begin until all current driver's license
product(s), the DL16LC Form, or a letter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE-
MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS
RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY.
OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS
SANCTION.
fI
992076102689431
Plsaso see the enclosed application for restoration fee in-
formation.
You will be notified of any outstanding restoration Pa-
quirements approximately 30 days before the 0il/ibilitV data
of the restoration of your driving privile0s. You must
follow those instructions very carefully in ardor to have
Your driving privilege restored.
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 39 days of the nail
date of this letter, AUGUST 02, 1999. If you f11e on espeel
in the County Court, the Court will give Woe • t3Eg.atOMpW
certified Copy of the appeal. Sand this tiN-etaeped cer-
tified copy of the appeal by certified mail too
PENNSYLVANIA OEPARTMBNT OP TRAMOPBRTATION
OPPICE OF CNIBP COUNSEL
TNIRO PLOOR, RIVERPRONT OPPICE CRMTER
NARRISBURO, PA..17104-2516
Sincerely,
Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/UL-16LC/T0s INFORMATION (7100 AN TO fill PM)
Department of Transportation IN STATE
Bureau of Driver Licensing 1-109-932-4618
P.O. Box 68693 OUT-OF-STATE 717-391-6190
Harrisburg, PA 17106-8693 TOD IN STATE 1-400-225-8676
TDD OUT-OF-STATE 717-391-6191
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PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
CERTIFICATION STATEMENT
SEP 15 1999
DRIVER: SUSAN L MEASE
1110 COCXLIN STREET
MECHANICSBURG, PA 17055
DRIVER LICENSE (DL)
-----------------
--------------
LICENSE CLASS : C
LICENSE ISSUE DATE: JUN 01 1998
LICENSE EXPIRES : MAY 31 2002
14ED RESTRICTIONS NONE
LEARNER PERMITS
LICENSE STATUS SUSPENDED
DRIVER LICENSE NO
DATE OF BIRTH
SEX
RECORD TYPE
COMMERCIAL DRIVER
CDL LICENSE CLASS
CDL LICENSE ISSUED
CDL LICENSE EXPIRES
CDL ENDORSEMENTS
CDL RESTRICTIONS
CDL LEARNER PERMITS
CDL LICENSE STATUS
PAGE 1
18120037
MAY 04 1958
FEMALE
REG LICENSE
LICENSE (CDL)
: NONE
: NONE
SUSPENDED
PROBATIONARY LICENSE (PL)
PL LICENSE CLASS
PL LICENSE ORIG ISS ;
PL LICENSE ISSUED
PL LICENSE EXPIRES
PL LICENSE STATUS
OCCUPATIONAL LIMITED LICENSE (OLL)
OLL LICENSE CLASS
OLL LICENSE ISSUED
OLL LICENSE EXPIRES
OLL LICENSE STATUS
*** CONTINUED ***
PAGE 2
CERTIFICATION STATEMENT -,SEP 15 1999 - LICENSE NUMBER 18120037 CONTINUED
VIOLATION DATE:
VIOLATION:
DESCRIPTION:
CONVICTION DATE:
ACTION:
VIOLATION DATE:
VIOLATION:
DESCRIPTION:
CONVICTION DATE:
ACTION:
--------------------------°--
REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS
-------------------------------------------
APR 12 1986
VEHICLE CODE: 3714
RECKLESS DRIVING
APR 22 1986
ASSIGNED POINTS
MAY 02 1999
VEHICLE CODE: 3731 MAJOR VIOLATION
DRIVING UNDER INFLUENCE
JUL 07 1999
SUSP DRVR LIC COMPACT FOR 1 YEAR(S) EFFECTIVE SEP 06 1999
OFFICIAL NOTICE MAILED AUG 02 1999
REPORT OF MEDICALS AND DEPARTMENTAL ACTIONS
NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD
*** CONTINUED ***
CERTIFICATION STATEMENT -,SEP 15 1999 - LICENSE NUMBER 18120037ECONTINUED
REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS
NO ACCIDENTS DURING THIS REPORTING PERIOD
*** END OF RECORD ***
CERTIFICATION STATEMENT - SEP 15 1999 - LICENSE NUMBER 18120037E CONTINUED
IN COMPLIANCE WITH YOUR REQUEST, I HEREBY CERTIFY THAT I
HAVE CAUSED A SEARCH TO BE MADE OF THE FILES OF THE DEPART-
MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE
SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED.
SINCERELY,
DIRECTOR, BUREAU OF DRIVER LICENSING
SEAL FOR
SECRETARY OF TRANSPORTATION
COMMONWEALTH OF PENNSYLVANIA SS: DATE:SEP 15 1999
I HEREBY CERTIFY THAT REBECCA L. BICKLEY, DIRECTOR OF THE
BUREAU OF DRIVER LICENSING, OF THE PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION IS THE LEGAL CUSTODIAN OF THE DRIVER
LICENSING RECORDS OF THE DEPARTMENT OF TRANSPORTATION. AS
THE DIRECTOR OF THE AFORESAID BUREAU, SHE HAS LEGAL CUSTODY
OF THE ORIGINAL OR MICROFILM RECORDS WHICH ARE THE SUBJECT
OF THE ABOVE CERTIFICATION.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL
OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID.
SINCERELY,
du'd?
SECRETARY OF TRANSPORTATION
SEAL
04/13/200() 10:00 6094654015 MIDDLE TWP COURT PAGE 01
CERTIFICATION OF MUNICIPAL COURT RECORD
THE FOLLOWING ENTRIES ARE TRUE AND CORRECT REPRODUCTIONS 01'
THE COURT RECORD.
1. DEFENDANTS NAME;
Susan L. Haase
2. SUMMONS NUMBER(S):
3. CHARGE(S):
4. DATE OF OFFENSE(S):
5. DEFENDANTS PLEA:
6. DATE OF PLEA:
7. DISPOSITION:
SPY658296
39:4-50
5/2/99
Guilty with a Civil Reservation
9. --
7/7/99 -,
Guilty with a Civil Reservation
S. SENTENCE: $250.00 fine coat $32.00, $100.00 surcharge
$50.00 VCCE, $75.OOSN 12hre IDRC, 180 days
D/L Revocation
9. MUNICIPAL COURT JUDGE BEFORE WHOM PLEA OR FINAL DISPOSITION WAS
TAKEN:
Peter Tourison
10. MUNICIPAL COURT ADMINISTRATOR, IF PRESENT:
m 11. MUNICIPAL PROSECUTOR, IF PRESENT:
z. q FrankCorrado
C
`o
c a
o
4
12. AVAILABILITY AND COST OF TRANSCRIPT: $100 DERW PER HOUR
ET IS HEREBY CERTIFIED THAT THIS WRITING IS A TRUE AND CORRECT COPY OF
AND ENTRY OF THE MUNICIPAL COURT TRANSCRIPTS AND RECORD OF THE
' MUNICIPAL COURT, AND IS ENTERED HEREON BY THE BELOW NAMED MUNICIPAL.
1(1 COURT OFFICER. THE BELOW NAMED MUNICIPAL COURT OFFICER IS HEREBY
ul
n CERTIFIED, HAVING CUSTODY OF THE OFFICE OF MUNICIPAL COURT RECORDS
? FROM WHICH THIS INFORMATION IS TRULY AND CORRECTLY COPIED.
r v o ii NAME:
EXHIBIT
a,. COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
RIVERFRONT OFFICE CENTER-THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
TELEPHONE: (717) 787-2830
FAX: (717) 705-1122
May 5, 2000
Judge Edward Guido
Court of Common Pleas, Cumberland County
Courthouse
I Courthouse Square
Carlisle, PA 17013-3387
Re: Susan L. Mease v. Commw. of Pa., DOT, BDL,1999-5259, Cumberland
County, License Suspension Appeal
Dear Judge Guido:
Please accept this letter as the Department's brief in the above captioned case. The
Department notified Susan L. Mease, O.L.N. 18120037, by notice dated and mailed August 2,
1999, that Section 1581 of the Vehicle Code requires the Department to treat certain out-of-state
convictions as though they had occurred in Pennsylvania, and therefore, as a result of the
Department receiving notification from New Jersey of her conviction on July 7, 1999, of an
offense which occurred on May 2, 1999, which is equivalent to a violation of Section 3731 of the
Pennsylvania Vehicle Code, Driving Under Influence, her driving privilege was being suspended
for a period of one year as mandated by Section 1532B of the Vehicle Code.
From that notice of suspension, the petitioner filed the above-mentioned appeal in the
Court of Common Pleas of Cumberland County. A hearing in the above mentioned matter was
held on April 28, 2000. The petitioner requested leave to file a brief and was to have that brief
submitted by May 1, 2000, while the Department was to have its brief submitted by April 28,
2000.
The Department's action involves the Driver's License Compact. The Driver's License
Compact (Compact) was enacted into law by Act 149 of 1996 and is found at Section 1581 of the
Vehicle Code.' Article III of the Compact provides, in part, that the "licensing authority of a
1. In Sullivan v. Department of Transportation, Bureau of Driver Licensing, 550 Pa. 639,708 A.2d 481 (1998) the
Court held that the Driver's License Compact had not been enacted so as to render it effective. The Compact was
enacted by Act 149 of 1996, December 10, 1996.
party state shall report each conviction of a person from another party occuffing within its
jurisdiction to the licensing authority of the home state of the licensee." Article IV of the
Compact provides, in part, as follows:
(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 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
intoxication 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;
*
(b) If the laws of a party state do not provide for the 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. 1581.
The Department's action was based upon a report of conviction received by the
Department from the State of New Jersey indicating that the petitioner had been convicted of
Operating Under Influence Liquor/Drugs, date of violation May 2, 1999, date of conviction July
7, 1999. See Department's exhibit No. 1. Sections 61032 and 61043 of the Judicial Code provide
2. Section 6103 of the Judicial Code states:
6103. Proof of official records.
(a) General rule. An official record kept within this Commonwealth by any court, district justice or other
government unit, or an entry therein, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied by a certificate that the officer has the custody. The certificate may be made
by any public officer having a seal of office and having official duties with respect to the governmental
unit in which the record is kept, authenticated by the seal of his office, or if there is no such officer, by:
(1) The Department of State, in the case of any Commonwealth agency.
(2) The clerk of the court of the common pleas of thejudicial district embracing any county in
which the government unit has jurisdiction, in the case of any government unit other than a
Commonwealth agency.
(b) tack of record. A written statement that after an examination of the records of the government unit no
record or entry of a specified tenor is found to exist in the records designated by the statement,
authenticated as provided in subsection (a), is admissible as evidence that the records contain no such
records or entry.
42 Pa. C.S. Q 6103.
that such documents are admissible. Additionally, Sections 15164 and 15505 of the Vehicle Code
3. Section 6104 of the Judicial Code states:
6104. Effect of official records generally
(a) General rule. A copy of a record of govemmental action or inaction authenticated as provided in
section 6103 (relating to proof of official records) shall be admissible as evidence that the
govemmental action or inaction disclosed therein was in fact taken or omitted.
(b) Existence of fact. A copy of a record authenticated as provided in Section 6103 disclosing the
existence or nonexistence of facts which have been recorded pursuant to an official duty or
would have been so recorded had the facts existed shall be admissible as evidence of the
existence or nonexistence of such facts, unless the sources of information or other circumstances
indicate lack of trustworthiness.
42 Pa. C.S. § 6104.
4. Section 1516(6) of the Vehicle Code states:
1516. Department records
(b) Accidents and convictions. The department shall file all accident reports and abstracts of court
records of convictions received by it under the laws of this Commonwealth and maintain actual
or facsimile records or make suitable notations in order that the records of each licensee
showing convictions of the licensee, any departmental action initiated against the licensee
regarding a reportable accident in which the licensee was involved, and the traffic accidents
shall be available for official use. Court abstracts and certifications of conviction and accident
reports submitted to the department under the laws of this Commonwealth shall be considered
as records of the department and the department may store such documents in accordance with
the provisions of 42 Pa. C.S. § 6109 (relating to photographic copies of business and public
records) and may enter into evidence copies of such documents in accordance with the
provisions of 42 Pa. C.S. § 6103 (relating to proof of official records). Such copies shall be
shall also be made available to the courts for sentencing purposes.
75 Pa. C.S. § 1516(b). (Emphasis added).
5. Section I550(d) of the Vehicle Code states:
1550. Judicial Review.
• r r
These records
(d) Documentation.
(1) In any proceeding under this section, documents received by the department from the courts or
administrative bodies of other states or the Federal Government shall be admissible into evidence
to support the department's case. In addition, the department may treat the received documents as
documents of the department and use any of the methods of storage permitted under the provisions
of 42 Pa. C.S. § 6109 (relating to photographic copies of business and public records) and may
reproduce such documents in accordance with the provisions of 42 Pa. C.S. § 6103 (relating to
proof of official records). In addition, if the deoartmenl receives information from courts or
administrative bodies of other states or the Federal Government by means of electronic
transmission, it may certify that it has received the information by means of electronic transmission
and that certification shall be Prima facie oroof of the adiudication and facts contained in such an
electronic transmission.
(2) In any proceeding under this section, documents received by the department from any other court
or from an insurance company shall be admissible into evidence to support the department's case
In addition, if the department receives information from a court by means of electronic
transmission or from an insurance company which is complying with its obligation under
provide that the Department's documents are admissible and constitute prima facie proof of the
facts and information contained in the certification.
The petitioner raised two issues at the hearing, one relating to whether the New Jersey
DUI statute is substantially similar to the Pennsylvania DUI statute under the Petrovick analysis
and whether the Department may act upon a New Jersey conviction based upon a guilty plea with
"civil reservation." The petitioner raises other issues in the petitioner's brief.
1. ARTICLE IV SUBSTANTIALLY SIMILAR ISSUE.
The Department's records indicate that the petitioner was convicted of a violation of New
Jersey N.J.S.A. § 39:4-50(a), operating under the influence of liquor or drugs 6 See Department's
exhibit No. 1. The petitioner argues under Petrovick, the New Jersey statute is not substantially
similar for purposes of the Compact. Petrovick v. Department of Transportation, Bureau of
Driver Licensing, 741 A.2d 1264 (Pa. 1999).
The Supreme Court in Petrovick stated that the Compact does not call for a direct
comparison of Pennsylvania's DUI statute with the party state's statute, but a comparison of the
two states statutes to the Compact. Petrovick v. Department of Transportation, Bureau of
Driver Licensing, 741 A.2d 1264 (Pa. 1999). The Supreme Court set forth a two-prong test for
the substantially similar analysis. The first prong is to determine whether there is a Pennsylvania
offense that is of a substantially similar nature to Article IV(a)(2) of the Compact. The Court in
Petrovick determined that Pennsylvania's DUI statute is of a substantially similar nature to
Article IV(a)(2).
The second prong is to determine whether the out-of-state offense is of a substantially
similar nature to Article W(a)(2). Pursuant to Article IV(a)(2) of the Compact, the Department
must give the same effect to the conduct reported when a party state reports a conviction for
subchapter H of Chapter 17 (relating to proof of financial responsibility) by means of electronic
transmission, it may certify that it has received the information by means of electronic
transmission, and that certification shall be prima facie proof of the adjudication and facts
contained in such an electronic transmission.
75 Pa. C.S. § 1550(d). (Emphasis added).
6. New Jersey's DUI statute states:
N.J. Star. § 39:4-50(a):
(a) A person who operates a motor vehicle while under the influence of intoxication liquor,
narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol
concentration of 0.10% or more by weight of alcohol in the defendant's blood or permits another
person who is under the influence of intoxication liquor, narcotic, halucinogenic or habit-
producing drug to operate a motor vehicle owned by him or in his custody and control or permits
another to operate a motor vehicle with a blood alcohol concentration of 0.10% or more by weight
of alcohol in the defendant's blood shall be subject [to penalties as set forth herein].
"driving a motor vehicle while under the influence of intoxicating liquor or narcotic drug or
under the influence of any other drug to a degree which renders the driver incapable ofsafely
driving a motor vehicle." 75 Pa. C.S. § 1581 (emphasis added). The court in Petrovick looked
to the party state's statute and how that statute has been construed by the courts in the party state.
Section 1586 of the Vehicle Code was added by Act 151.7 Section 1586 of the Vehicle
Code states:
1586. Duties of department
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 related to driving, operating or being in actual physical control of a vehicle
while impaired by or under the influence of alcohol, intoxication liquor, drugs,
narcotics, controlled substances or other impairing intoxication substance as being
substantially similar to section 3831 (relating to driving under the influence of
alcohol or controlled substance). The fact that the offense reported to the
department by a party state may required a different degree of impairment of a
eerson's ability to operate drive or control a vehicle than that required to support a
conviction for a violation of section 3731 shall not be a basis for determining that
the party state's offense is not substantially similar to section 3731 for purposes of
Article IV of the compact.
75 Pa. C.S. § 1586. (Emphasis added).
The petitioner's conviction occurred after the General Assembly added Section 1586 to
the Vehicle Code. Nevertheless, under any analysis, the New Jersey statute should be construed
to be substantially similar to Pennsylvania's DUI statute.
Prior to the Petrovick decision, a violation of New Jersey N.J.S.A. § 39:4-50(a),
operating under the influence of liquor or drugs, was substantially similar for purposes of the
Compact. See Scott v. Department of Transportation, Bureau of Driver Licensing, 730 A.2d
539 (Pa. Cmwlth 1999); See also Koterba v. Department of Transportation, Bureau of Driver
Licensing 736 A.2d 761 (Pa. Cmwlth 1999), Kiebort v. Department of Transportation, Bureau
of Driver Licensing, 719 A.2d 1139 (Pa. Cmwlth 1998), Seibert v. Department of
Transportation, Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth 1998). Additionally,
in Commonwealth v. Whisnant, 568 A.2d 259 (Pa. Super. 1999) the Superior Court held that
7. Certain statutes have been found to be not substantially similar for purposes of the Compact. See Petrovick v.
Department of Transportation, Bureau of Driver Licensing, 741 A.2d 1264 (Pa. 1999) (Petrovick & Frantz, New
York Driving While Ability Impaired- not substantially similar, Eck, Maryland 21-902(b)- not substantially similar);
Kline v. Department of Transportation, Bureau of Driver Licensing, 725 A.2d 860 (Pa. Cmwlth 1999) (Virginia
.08- not substantially similar). The Department respectfully submits that the General Assembly disagreed with the
strict construction of the Compact espoused by the Courts in cases such as Petrovick v. Department of
Transportation, Bureau of Driver Licensing, 741 A.2d 1264 (Pa. 1999). By amending Section 1584 of the Vehicle
Code, the General Assembly provided its own interpretation of how Article III and IV of the Compact should be
construed.
New Jersey's DUI offense was essentially identical to 75 Pa. C.S. § 3731(a) for purposes of
sentence enhancement under 75 Pa.C.S. § 3731(e). Since 75 Pa. C.S. § 3731(a) is "substantially
similar" to Article IV(a)(2) and N.J.S.A. § 39:4-50(a) has been held to be essentially identical to
75 Pa. C.S. § 3731(a), those decisions should be persuasive for the proposition that N.J.S.A. §
39:4-50(a) is "substantially similar" to Article IV(a)(2).
New Jersey law presumes that a person with a blood alcohol concentration of 0.10% or
greater is presumed to be under the influence of intoxicating liquor. N.J.S.A. § 39:4-50.1; State
v Roenicke, 174 N.J. Super. 513, 417 A.2d 54, 10 A.L.R.4' 1247 (1980). In Roenicke, the New
Jersey Superior Court described the elements of New Jersey's DUI offense as: "N.J.S.A. § 39:4-
50 requires proof that an individual was operating a motor vehicle, whether or not on a highway,
while his ability to do so was deleteriously affected by alcohol. The essence of the offense is that
the impaired condition of defendant's physical coordination or mental faculties rather than the
manner in which he is driving. Indeed, the vehicle need not actually be moving for one to be
convicted .,,8 Roenicke, 174 N.J. Super, at 517, 417 A.2d at 54. See also State v. Johnson, 42
N.J. 146, 199 A.2d 809 (1964).
By requiring a person to be under the influence of alcohol or drugs to the extent that the
person's ability to operate a motor vehicle was harmfully affected, the Department respectfully
submits that the petitioner's violation of New Jersey § 39:4-50(a) is substantially similar to
Article IV(a)(2) of the Compact and mandates a one-year suspension of the petitioner's operating
privilege under 75 Pa. C.S. §§ 1532(b)(3) and 1581, Article IV(a)(2).
2. DOUBLE JEOPARDY AND EQUAL PROTECTION.
Licensees have raised numerous other issues related to the Compact. A Pre-Act 151 case
currently on direct appeal to the Supreme Court is McCafferty v. Department of Transportation,
Bureau of Driver Licensing, 0001 E.D. 1998. In McCafferty the Department suspended the
licensee pursuant to the Compact. The licensee appealed and the Court of Common Pleas
declared that the operation of Article IV of the Compact violated the Double Jeopardy Clause of
the Fifth Amendment and of Article I, §10, of the Pennsylvania Constitution, as well as the Equal
Protection Clause of the Fourteenth Amendment. Department of Transportation v. McCafferty,
(No. 9710-0987, Court of Common Pleas of Philadelphia County, filed December 31, 1997,
Philadelphia County, 34 Phila. 462, 1997 Phila. Cty. Reporter Lexis 92). Additionally, the Court
of Common Pleas ruled that the Department's documents did not comply with Article III of the
Compact.
A. DOUBLE JEOPARDY
8. Black's Law Dictionary defines the tern "deleterious" as "poisonous" and "unwholesome." Black's Law
Dictionary, 6'h Ed 426 (1990). Webster's defines "deleterious" as "harmful often in a subtle or unexpected way."
Webster's Ninth New Collegiate Dictionary 336 (1988).
A suspension imposed pursuant to the Compact does not violate the Double Jeopardy
Clause of the Fifth Amendment and of Article 1, §10, of the Pennsylvania Constitution. The
suspensions are mandated by Section 1532(b)(3) of the Vehicle Code and are collateral civil
consequences based upon the DUI conviction. The Commonwealth Court has held that operating
privilege suspensions imposed by the Department as collateral civil consequences of underlying
convictions do not violate the prohibition against double jeopardy. Urciuolo v. Department of
Transportation, Bureau of Driver Licensing, 684 A.2d 1094 (Pa. Cmwlth. 1996), appeal
denied, 547 Pa. 747, 690 A.2d 1165 (1997); Krall v. Department of Transportation, Bureau of
Driver Licensing, 682 A.2d 63 (Pa. Cmwlth. 1996) (en banc). The Commonwealth Court has
held that a suspension imposed under the Compact does not violate the Double Jeopardy Clause
of the Pennsylvania or United States Constitution. Pepperling v Department of Transportation,
Bureau of Driver Licensing, 737 A.2d 310 (Pa. Cmwlth. 1999); Smega v. Department of
Transportation, Bureau of Driver Licensing, 727 A.2d 154 (Pa. Cmwlth. 1999) (en Banc);
Correll v. Department of Transportation, Bureau of Driver Licensing, 726 A.2d 427 (Pa.
Cmwlth. 1999) (en bane).
B. EQUAL PROTECTION
A suspension imposed pursuant to the Compact does not violate the Equal Protection
clause of the Fourteenth Amendment. Licensees have argued that denial of ARD violates Equal
Protection. A suspension under the Compact creates no classification. The Vehicle Code treats
all licensees who have been convicted the same - a one year license suspension. The
Commonwealth Court has held that the Compact is facially non-discriminatory and that denial of
ARD does not deny a licensee Equal Protection. Kiebort v. Department of Transportation,
Bureau of Driver Licensing, 719 A.2d 1139 (Pa. Cmwlth. 1998); Pepperling v. Department of
Transportation, Bureau of Driver Licensing, 737 A.2d 310 (Pa. Cmwlth. 1999); Correll v.
Department of Transportation, Bureau of Driver Licensing, 726 A.2d 427 (Pa. Cmwlth. 1999)
(en bane).
C. DUE PROCESS ARGUMENT IN HARRINGTON
Another case on direct appeal to the Supreme Court is Harrington v. Department of
Transportation, 0209 M.D. 1999. The Department imposed a one year suspension upon
Harrington based upon a report of conviction received from New Jersey. The motorist was
convicted after Sections 1584 and 1586 were added to the Vehicle Code by Act 151. The Court
of Common Pleas sustained the licensee's appeal ruling that Section 1584 of the Vehicle Code
did not alter the reporting requirements under Article III of the Compact.
In Harrington the court ruled that the suspension was unconstitutional as violative of
Due Process Clauses of the Fifth and Fourteenth Amendments to the United State Constitution
and the Pennsylvania Constitution. Commonwealth v. Harrington, 47 Chester 142 (Pa. C.P.
1999). In Harrington, the court found that the provisions of Section 1584 were so broad and
sweeping that it could circumvent the minimum notice requirements of due process provisions of
both the Pennsylvania and United States Constitutions. The Department submits the analysis in
Harrington is flawed.
It is a well-established principle of statutory construction that enactments of the
legislative branch are presumed to be constitutional. See, e.g., I Pa. C.S. § 1922; Plowman v.
Department of Transportation, Bureau of Driver Licensing, 635 A.2d 124 (Pa. 1993). An
enactment of the General Assembly will be deemed to be constitutional unless the challenging
party advances evidence that the statute clearly, palpably and plainly violates the constitutions of
either the United States or of this Commonwealth. Plowman; Commonwealth % Strunk 582
A.2d 1326 (Pa. Super. 1990), appeal denied, 598 A.2d 283 (Pa. 1991). The presumption of
constitutionality of an enactment of the General Assembly is so strong and the requirements for
rebutting that presumption are so exacting that a court can declare an act of the General
Assembly as void only where it violates the United States or Pennsylvania Constitution clearly,
plainly and palpably and in such a manner as to leave no doubt or hesitation in the court's mind.
Rubin v. Bailey, 157 A.2d 882 (Pa. 1960).
Reviewing courts are to interpret enactments of the legislative branch in a constitutional
manner, if possible. 1 Pa. C.S. § 1922(3); Commonwealth v. McDonald, 347 A.2d 290 (Pa.
1975), cert. denied, 429 U.S. 816 (1976). A reviewing court should take pains to avoid an
interpretation of a statute that would create a conflict with a constitutional provision. I Pa. C.S.
§ 1922(3); Commonwealth v Hude, 425 A.2d 313 (Pa. 1980). Any doubts regarding the
statute's constitutionality must be resolved in favor of the statute's constitutionality. United
States v. Geller, 560 F. Supp. 1309 (E.D. Pa. 1983), affd, 745 F.2d 49 (3d Cir. 1984), cert.
denied, 469 U.S. 1109 (1985); Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988), gffd sub
nom., Blystone v Pennsylvania, 494 U.S. 299 (1990).
The law is well established that the ability to operate a motor vehicle upon a public
highway or trafficway in this Commonwealth is a privilege and not a contract, property or
constitutional right. Plowman; Maurer v. Boardman, 7 A.2d 466 (Pa. 1939), affd sub nom.,
Maurer v. Hamilton, 309 U.S. 598 (1940). As such, the Commonwealth has the right to control
and regulate the exercise of that privilege under such terms and conditions as the General
Assembly may see fit to impose. Plowman. Such regulation must be tempered by adherence to
the principles of due process of law. Plowman, 635 A.2d at 126. It is also well-settled that the
operating privilege, once granted, may not be suspended, canceled or revoked by the
Commonwealth without affording the driver procedural due process. Bell v. Burson, 402 U.S.
535 (1971); Department of Transportation, Bureau of Driver Licensing v. Clayton, 684 A.2d
1060 (Pa. 1996).
The use of an out-of-state conviction report that does not fully satisfy the reporting
requirements of Article III of the Compact at the de novo hearing does not impinge upon any of a
driver's due process rights. There is no question that the Department of Transportation has the
burden of proof to establish the basis for its action at the de novo hearing before the Court of
Common Pleas. The Court of Common Pleas scope of review of the Department's action is
limited to ascertaining whether the driver was in fact convicted of the offense giving rise to the
Department's action and whether the Department complied with the applicable law when it
imposed the suspension or revocation at issue. Department of Transportation, Bureau of
Driver Licensing v. Tarnopolski, 626 A.2d 138 (Pa. 1993); Davidson v. Department of
Transportation, Bureau of Traffic Safety, 530 A.2d 1021 (Pa. Cmwlth. 1987). It is well
established that the details of the criminal proceeding leading up to the conviction are outside the
scope of review of the statutory appeals court. Commonwealth v. Duffey, 639 A.2d 1174 (Pa.
1994); Commonwealth v. Bursick, 584 A.2d 291 (Pa. 1990).
In order to comport with due process requirements and to meet the Department's burden
of proof, the out-of-state conviction report must be sufficiently informative to allow the
Department to: 1) ascertain the licensee to whom the report refers; and 2) ascertain whether the
offense for which the licensee is convicted is "substantially similar" to one of those offenses set
forth in Article IV of the Compact for which the Department is mandated to impose a
suspension. The Department respectfully submits that the information in the report submitted to
the Department was sufficient to allow the Department to satisfy its burden of proof and establish
a prima facie case to support the suspension of petitioner's operating privilege.
The Department also directs this Court's attention to Judge McAndrews' decision in
Commonwealth of Pennsylvania, Department of Transportation v. Wenger, (No. 99-4618-20-
6, Court of Common Pleas of Bucks County, filed November 23, 1999); see also Jaggi v.
Commonwealth ofPennsyvlania, Department of Transportation, (No. 195-1999, Court of
Common Pleas of Warren County, filed October 25, 1999). In Wenger, the motorist claimed that
Section 1584 could not be applied citing Harrington. Judge McAndrews rejected the argument
that Section 1584 was unconstitutional. The Court noted that the certification that was submitted
by the Department must still be adequate to prove its case. Accordingly, there could be no due
process problem.
3. NEW JERSEY CIVIL RESERVATION DOES NOT PREVENT THE
DEPARTMENT FROM IMPOSING THE SUSPENSION
The petitioner argues that the Department may not act upon the petitioner's guilty plea
because it was with "civil reservation."
The New Jersey civil reservation rule merely prohibits the use of the defendant's guilty
plea in a subsequent civil proceeding, it does not bar introduction of evidence of conviction that
resulted from that guilty plea. It is the conviction, not the guilty plea, that triggered New Jersey's
report to the Department and it is that of report ofconviction that the Department acted upon to
suspend the petitioner's operating privilege. Evidence of a conviction is not affected by the
procedure leading up to the plea and is admissible in an administrative proceeding. See
Eisenberg v. Department of Public Welfare, 516 A.2d 333 (Pa. 1986). The Department may
proceed with the suspension because the Department is acting upon the conviction, not upon the
guilty plea. Noteworthy is the fact that it was the petitioner, not the Department, who sought to
introduce into evidence the petition's plea with civil reservation.
The New Jersey civil reservation rule is somewhat similar to a plea of polo contendere
under Pennsylvania law, neither maybe used as judicial admissions. See Eisenberg v.
Department of Public Welfare, 516 A.2d 333 (Pa. 1986). The Department is not attempting to
use the guilty plea as an admission, the Department is acting upon the conviction. The
mechanics of how the plea occurred are irrelevant to the Department's action. A plea in New
Jersey with civil reservation should not act to insulate the licensee from a suspension. Moreover,
in Pennsylvania the conviction resulting from plea of nolo contendere relating to a violation of
the Vehicle Code is admissible in a license suspension matter. See 42 Pa. C.S. 6142.
The motorist in Hunt v Commonwealth of Pennsylvania, Department of
Transportation, Commonwealth Court, No. 2244 C.D. 1999, filed March 29, 2000, argued,
among other things, that his plea of "nolo contendere" to a charge of a violation of driving under
the influence in West Virginia could not be used to suspend his Pennsylvania's operating
privilege because he argued that the Compact did not encompass pleas of nolo contendere. Hunt
v. Commonwealth of Pennsylvania, Department of Transportation, Commonwealth Court, No.
2244 C.D. 1999, filed March 29, 2000. The court disagreed and stated that they have repeatedly
upheld suspensions based upon pleas of no contest. Id.
Additionally, the New Jersey civil reservation rule is a New Jersey rule of evidence. The
Pennsylvania Supreme Court is vested with the exclusive power to proscribe rules of practice and
procedure of Pennsylvania's courts. Pa. Const., art V, § 10. New Jersey cannot dictate to a
Pennsylvania Court what it is allowed or not allowed to admit. The Supreme Court has rejected
the argument that the Full Faith and Credit Clause of the United States Constitution prohibits a
state from admitting evidence in a case when there was an order from a sister state precluding
admission of certain evidence in a separate action involving third parties not parties to the sister
state's action. See Baker v General Motors Corporation, 522 U.S. 222 (1998). Similarly,
admission of a New Jersey conviction where the plea was with civil reservation does not violate
Full Faith and Credit Clause of the United States Constitution.
The petitioner argues that the petitioner's guilty plea with "civil reservation" prevents the
Department from suspending the petitioner's operating privilege as under the Full Faith and
Credit clause of the United States Constitution, Pennsylvania courts are required to give effect to
the petitioner's New Jersey "civil reservation" order and not allow the petitioner's guilty plea to
be used as evidence in any civil proceeding in a Pennsylvania Court. Additionally, the petitioner
complains that the petitioner is being penalized a second time and that Pennsylvania is
suspending the petitioner's operating privilege for a longer period than did New Jersey. New
Jersey obviously suspended the petitioner's operating privilege even with the petitioner's civil
reservation plea. By arguing that the petitioner's plea with civil reservation is not admissible
pursuant to the Full Faith and Credit Clause, the petitioner is arguing that Pennsylvania courts
should give greater effect to the civil reservation plea then does New Jersey. Clearly, the Full
Faith and Credit Clause does not require such an absurd result. Additionally, the petitioner's
argument that the Department is not permitted to act upon the conviction because of the civil
10
reservation is essentially a request that Pennsylvania should not give full faith and credit to the
New Jersey conviction.
Based upon the aforementioned, the Department's action does not violate the Full Faith
and Credit Clause of the United States Constitution and his conviction is admissible in
Pennsylvania.
4. RIGHT TO JURY TRIAL
The Court of Common Pleas scope of review of the Department's action is limited to
ascertaining whether the driver was in fact convicted of the offense giving rise to the
Department's action and whether the Department complied with the applicable law when it
imposed the suspension or revocation at issue. Department of Transportation, Bureau of
Driver Licensing a Tarnopolski, 626 A.2d 138 (Pa. 1993); Davidson v Department of
Transportation, Bureau of Traffic Safety, 530 A.2d 1021 (Pa. Cmwith. 1987). It is well
established that the details of the criminal proceeding leading up to the conviction are outside the
scope of review of the statutory appeals court. Commonwealth v. Duffey, 639 A.2d 1174 (Pa.
1994); Commonwealth v. Bursick, 584 A.2d 291 (Pa. 1990). The petitioner is attempting an
impermissible collaterally attack.
5. NOT ADVISED OF THE CONSEOUNCES OF THE GUILTY PLEA
The Department's action to suspend the petitioner's operating privilege is a collateral
civil consequence of the petitioner's New Jersey DUI. See Correll v Department of
Transportation, Bureau of Driver Licensing, 726 A.2d 427 (Pa. CmvvIth. 1998). A motorist
need not be warned of the collateral civil consequences. Commonwealth v. Duffey, 639 A.2d
1174 (Pa. 1994); Commonwealth v. Bursick, 584 A.2d 291(Pa. 1990).
6. AUTHORITY TO SUSPEND.
Reading 75 Pa. C.S. §§ 1532(b)(3)9, 1581 and 1584, in pari materia, it is clear that the
General Assembly intended to require the Department to perform its duties in suspending a
9. Section 1532(b)(3) of the Vehicle Code states:
1532. Suspension of operating privilege.
r
(b) Suspension.
(3) The department shall suspend the operating privilege of any driver for 12 months upon receiving a
certified record of the driver's conviction to section 3731 (relating to driving under influence of
II
driver's operating privilege under Section 1532(b)(3) whenever an out-of-state report was
received by the Department pursuant to Article III.
Based upon the aforementioned, I respectfully request that the appeal be dismissed
and the suspension reinstated.
Sincerely,
George H. Kabusk
Assistant Counsel
cc: J. Michael Farrell, Esq., 718 Arch Street, Suite 402 S, Philadelphia, PA 19106
alcohol or controlled substance) or 3733 (relating to fleeing or attempting to elude police officer),
or substantially similar offenses reported to the department under Article 111 of section 1581
(relating to Driver's License Compact), or an adjudication of delinquency based on section 3731 or
3733. The department shall suspend the operating privilege of any driver for six months upon
receiving a certified record of a consent decree granted under 42 Pa. C.S. Ch. 63 (relating to
juvenile matters) based on section 3731 or 3733.
75 Pa. C.S. § 1532(b)(3).
12
MAY - 5 1.00
MAY-526
J. MICHAEL FARRELL, ESQ.
I.D. NO. 33803
718 ARCH STREET, STE. 402 S
PHILADELPHIA, PA 19106
ATTORNEY FOR PLAINTIFF
SUSAN MEASE,
C.P. NO. 99-5259
V.
COMMONWEALTH OF
PENNSYLVANIA
MEMORANDUM OF LAW
IN SUPPORT OF APPELLANT'S APPEAL OF THE
SUSPENSION OF HER DRIVER'S LICENSE
1. Statement of Facts.
Petitioner, Susan Mease, is a resident of the Commonwealth of Pennsylvania. At the time of
her arrest in the State of New Jersey for the Offense of Driving Under the Influence, she was a
resident of, and licensed to drive in, the Commonwealth of Pennsylvania. She possesses a
Pennsylvania Driver's License. In the state of New Jersey the plaintiff was convicted of the offense
of Operating under the influence of liquor in violation of NJSA 39:4-50; specifically, she entered
a plea of guilty to the subsection of that statute which makes it a criminal offense to have a blood
alcohol content of.10 or greater at the time of the testing. She received a six month suspension of
her privilege to drive in the State of New Jersey together with other penalties imposed by the New
Jersey Court. The conviction resulted from her plea of guilty with Civil Reservation pursuant to New
Jersey Rule of Criminal Procedure 3:9-2. Her New Jersey suspension has now expired and the
Commonwealth now seeks to suspend her Pennsylvania driver's license for an additional one year
period.
On or about August 2, 1999 the defendant, Department of Transportation sent the plaintiff
a notice of its intention to suspend the plaintiffs driving privileges in the Commonwealth of
Pennsylvania for one (I) year beginning on September 6, 1999. The notice of the suspension
indicated that it was being applied as a result of the plaintiff's conviction in New Jersey "which is
equivalent to a violation of Section 3731 of the Pa. Vehicle code."
Appellant filed the instant appeal ofher Pennsylvania imposed suspension in a timely manner
on September 3, 1999. This Memorandum is submitted in support of the appellant's appeal.
11. Argument.
A. Where, as here, the plaintiff entered her guilty plea in New Jersey under an
express New Jersey provision allowing the entry of a guilty plea with "civil reservation" the
use of that conviction as the basis for a suspension of the plaintiffs Pennsylvania driver's
license is impermissible and the suspensions sought by PennDot on that basis must be
vacated.'
The plaintiff herein entered her guilty plea in the State of New Jersey pursuant to a New
Jersey Court Rule, 3:9-2, governing the acceptance of guilty pleas in the Municipal courts of that
state. The rule provides,
"A defendant may plead only guilty or not guilty to an offense. The
court, in its discretion, may refuse to accept a plea of guilty and shall
not accept such plea without first addressing the defendant personally
and determining by inquiry of the defendant and others, in the court's
discretion, that there is a factual basis for the plea and that the plea is
made voluntarily, not as a result of any threats or of any promises or
inducements not disclosed on the record, and with an understanding
of the nature of the charge and the consequences of the plea. When
the defendant is charged with a crime punishable by death, no factual
basis shall be required from the defendant before entry of a plea of
guilty to a capital offense or to a lesser included offense, provided the
court is satisfied from the proofs presented that there is a factual basis
for the plea. For good cause shown the court may, in accepting a
plea of guilty, order that such plea not be evidential in any civil
proceeding. If a plea of guilty is refused, no admission made by the
'This precise issue has been decided by the Philadelphia Court of Common Pleas, Halbert,
J. A copy of Judge Halbert's opinion is attached hereto as Exhibit B.
defendant shall be admissible in evidence against the defendant at trial.
If a defendant refuses to plead or stands mute, or if the court refuses
to accept a plea of guilty, a plea of not guilty shall be entered. Before
accepting a plea of guilty, the court shall require the defendant to
complete, insofar as applicable, and sign the appropriate form
prescribed by the Administrative Director of the Courts, which shall
then be filed with the criminal division manager's office."(emphasis
added)
Under New Jersey law, the New Jersey Supreme Court held that proceedings before the New Jersey
Department of Transportation were civil proceedings and, therefore, guilty pleas entered with civil
reservation could not be use against those entering the pleas in any subsequent civil proceeding. In
Pennsylvania, driver's license proceedings are civil and not criminal proceedings. Theuseofaguilty
plea with a civil reservation could clearly not be used against the plainti ff in a civil proceeding. Under
the full faith and credit clause of the United States Constitution, U.S.C.A. Art. 4, Section 1, the use
of this guilty plea entered in New Jersey under civil reservation cannot be used in Pennsylvania.
The issue ofthe implication ofthe full faith and credit clause of the United States Constitution
has been addressed by the New York Court of Appeals in Farmland Dairies v. Barber, 478 N.E. 2d
1314; 489 N.Y.S. 2d 713 (1985). In that case, New York's highest court held that a plea of guilty
in New Jersey with civil reservation could not be used in New York in denying an application for
extension ofa license. The court held specifically that N.J.R. Crim. P. 3:9-2 prohibited the use of the
plea in a New York civil proceeding pursuant to the full faith and credit clause of the United States
Constitution. There is no reason for this court and the courts of this state not to give equal force to
the New Jersey Court rule under which this defendant entered her plea of guilty.
Recently, Judge Joseph F. Battle, in Rocco Accito v. D.O.T., Delaware County Court of
Common Pleas, No. 99-32222, sustained an appeal of a driver's license suspension on the basis that
the appellant's plea, in the State of New Jersey, under civil reservation, provided no basis for the
suspension ofa Pennsylvania license. Based on the Pennsylvania Commonwealth Court's decision
in D.O.T. v. Adcock, 520 A.2d 118 (1987), Judge Battle has reached the same conclusion in the
'-See attached Exhibit B.
earlier case of Commonwealth v. Troosi, Delaware County Court of Common Pleas, No. 98-52213,
where he also found that the New Jersey civil reservation judgement was entitled to full faith and
credit in the Pennsylvania courts. In addition, Judge Battle, in Triosi, supra, agreed that the civil
reservation provision under which the appellant herein entered her plea of guilty, barred the
imposition of the penalty of suspension in Pennsylvania for the upon under which her New Jersey
conviction of appellant, Triosi, was based. Citing the above cases, Judge Battle held that the civil
reservation provisions ofthe plea, as provided by New Jersey law, precluded the use, in Pennsylvania,
of the guilty plea in New Jersey, for any purpose, including, but not limited to the imposition of a
Pennsylvania license suspension.
B. Where, as here, there is no evidence that the appellant's conviction in the State of New
Jersey, was for driving a motor vehicle while under the influence of intoxicating liquor "...to
a degree which renders the driver incapable of safe driving," the Compact does not provide
for "suspension, revocation, or limitation" of the appellant's license to drive a motor vehicle.
Article IV of the "Driver's License Compact" provides, in pertinent part,
(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 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 intoxicating
liquor ...to a degree which renders the driver incapable of safely driving
a motor vehicle."
For the reasons that follow, it is the appellant's position that the Compact does not allow for the
suspension, revocation or limitation ofa Pennsylvania driver's license where, as here, the NevvJersey
conviction is for having a blood alcohol content of .10 or greater at the time the test was
administered.
The Pennsylvania Statute, 75 Pa.C.S.A. 3731, provides, in pertinent part,
'See attached Exhibit C.
(a) Offense defined.-- A person shall not drive, operate or be in actual
physical control of the movement of a vehicle in any of the following
circumstances:
(1) While under the influence of alcohol to a degree which renders the
person incapable of safe driving.
(4) While the amount of alcohol by weight in the blood of:
(1) an adult is 0.10% or greater.
Thus, the Pennsylvania statute provides for an offense where the Commonwealth proves that the
driver was under the influence of alcohol to the extent that he or she was incapable of safe driving.
Additionally, the statute makes it a crime to have a blood alcohol level of 0.10% at the time of
driving. New Jersey's statute, and the requirements fora conviction thereunder, is dissimilar. New
Jersey's statute, N.J.S.A. 39:4-50, defines the criminal act, in pertinent part, as follows: "A person
who operates a motor vehicle while under the influence of intoxicating liquor ...or operates a motor
vehicle with a blood alcohol concentration of 0.10% or more..." shall be subject to penalties. New
Jersey's statute does not have any requirement that the driver be incapable of safe driving.
Defendant's blood alcohol reading above legal limit established per se offense of driving under
influence of alcohol, even in absence ofany additional evidence of intoxication or impaired ability to
drive. State v. Lutz, 309 N.J.Super. 317, 707 A.2d 159 (A.D.1998). Moreover, New Jersey case
law has defined the per se aspect of the statute to make it an offense to have a 0.10% blood alcohol
content at the time of testing. In New Jersey, it is the blood-alcohol level at the time of the
breathalyzer test that constitutes the essential evidence of the offense. State v. Tischio, 107 N.J. 504
(1987). The New Jersey per se offense of driving while intoxicated is established by 0.10%reading
from properly operated and properly functioning breath testing machine, despite testimony that
machine had accuracy of plus and minus 0.01 % rate v. Lentini, 2 N.J.Super. 330, 573 A.2d 464
(A.D.1990).
While the Pennsylvania offense requires extrapolation of the blood alcohol level to prove that
level at the time of driving, the New Jersey offense has no such requirement and does not require any
evidence of the effect on the driver's ability to safely operate a motor vehicle. In fact, New Jersey
law prohibits the use of extrapolation testimony. Tischio, supra. This major distinction in the two
statutes makes the Compact's suspension provisions inapplicable by their clear terms as Article IV
of the Compact allows suspensions in the home state only where the offense for which the driver is
convicted in another state is one which includes the element of incapability to drive safely.
Although the Commonwealth Court has held in a variety of cases that the New Jersey and
Pennsylvania statutes are "substantially similar," see, eg. ICiebort v. Department of Transportation,
719 A.2d 1139 (Pa. Commw. 1998) and Siebort v Department of Transportation, 715 A.2d 517
(Pa.Commw. 1998), no case has addressed the question of whether the Compact allows for a
suspension of a Pennsylvania Driver where there is no evidence that the section of the New Jersey
Statute under which the driver was convicted contained the essential element that the driver was
incapable of safe driving.' The issue of whether the Compact itself allows for a suspension of a
Pennsylvania driver's licence in the absence of proof in the prosecuting state that the driver was
incapable of operating the motor vehicle safely has not been decided.
The Pennsylvania courts have also taken a different view of the elements of a per se offense
than have the New Jersey Courts. In Pennsylvania, unlike in New Jersey, the Commonwealth must
prove that the defendant's blood alcohol content was 0.10% or greater at the time of the driving. In
Commonwealth v. Barud, 545 Pa. 297 (Pa 1996), the Supreme Court addressed the section of the
Pennsylvania statute which made it a crime where the driver's blood alcohol content, as evidenced
by a test administered within three hours of driving, was 0.10% or greater. The court noted that in
Commonwealth v. Jarman, 529 Pa. 92 (1992) and Commonwealth v. Modafare, 529 Pa. 101 (1992)
it had already been decided that mere evidence that the driver's blood alcohol content at the time of
testing was equal or greater than 0.10%, was insufficient to prove a violation of the statute. The
Barud court, with those decisions in mind, found that section (a)(5) of the statute, making it a crime
where the blood alcohol content at the time of testing within three hours of the driving was 0.10%
'Although Siebert concluded that the issue that appellant raised in the trial court
concerning the lack of the specific element in the New Jersey statute that the defendant was
incapable of safe driving, decided against him in the lower court, was properly decided, the court
did not address the effect which other Pennsylvania cases have had on the per se offense and the
"time of driving" v. "time of testing" distinction. Moreover, it is unclear from the case whether
the court considered the specific language of Article IV of the Compact in reaching its decision.
While the statutes may be substantially similar, the punished conduct in New Jersey, does not fit
the requirement of the Compact that the driver be under the influence to an extent which rendered
him or her incapable of safe driving.
or greater, was unconstitutional as void for vagueness and overbreadth. The court held that "without
requiring any proof that the person actually exceeded the legal limit of. 10% at the time of driving,
the statute sweeps unnecessarily broadly into activity which has not been declared unlawful in this
Commonwealth..." The court found that the statute's "most glaring deficiency..." was that it
"completely fails to require any proof that the accused's blood alcohol level actually exceeded the
legal limit at the time of driving." The court found it intolerable that the statute criminalized conduct
"...without any regard for the level of intoxication at the time of operation."
The importance of this holding to the issue presented herein cannot be overstated. The New
Jersey courts have reached decisions in sharp contrast to the Pennsylvania courts on this issue. New
Jersey allows convictions without regard to the actual blood alcohol content at the time of the
driving, and, therefore, without regard to the level of intoxication at the time of the driving. In New
Jersey, the blood-alcohol level at the time a breathalyzer test is administered, conclusively establishes
a violation ofN.J.S.A. 39:4-50a. State v. Tischio, supra, 107 N.J. at 522, 527 A.2d 388. New Jersey
Courts must take judicial notice that breathalyzer tests are accurate and that a reading of .10
establishes a per se violation of N.J.S.A. 39:4-50a fate v. Down 117 N.J. 450, 466-488, 569
A.2d 242, cert. denied, --- U.S. ----, 111 S.Ct. 63, 112 L.Ed.2d 38 (1990). In New Jersey, unlike
in this Commonwealth, it is impermissible to extrapolate to show what the driver's BAC was at the
time of operation, if the BAC test result was equal to or greater than 0.10%. The Supreme Court of
New Jersey reached its ruling for "overriding considerations of public policy," Tischio, 107 N.J. at
509, 527 A.2d 388, and was not persuaded by the argument that defendant Tischio may have had a
BAC of less than 0.10% at the time of operation. The New Jersey Court "ruled that it is the
blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the
offense ... and that extrapolation evidence is not probative of this statutory offense and hence is not
admissible." > Tischio, 107 N.J. at 506, 527 A.2d 388. A New Jersey defendant whose
blood-alcohol level measures 0. 10%or more when the test is administered is convictable without any
showing that he or she was driving unsafely< tate v. DeLuc 208 N.J.Super. 422, 506 A.2d 55
(App.Div.1986), rev'd on other grounds, 108 N.J. 98, 527 A.2d 1355, cert. den. 484 U.S. 944, 108
S.Ct. 331, 98 L.Ed.2d 358.
The Pennsylvania Supreme Court has recently decided the case of Petrovick v. D.O.T., No.
173 MD !998, December 13, 1999, In that case the court considered the effect of a Maryland
conviction upon a Pennsylvania citizen's driver's licence privileges pursuant to the Driver License
Compact. The court noted that a decision on the issue presented did not turn on whether the statutes
of another state and the Commonwealth of Pennsylvania are "substantially similar," but depended on
whether `...each state's drunk driving provisions are `of substantially similar nature' to Article
IV(a)(2) of the Compact." The court further noted that the Compact takes effect when another state
reports to a party state that a driver was convicted "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 those circumstances, PermDot must give the same effect to the out-of-state conviction
that the licensee would receive if the conviction had occurred within Pennsylvania. Importantly, New
Jersey's statute, relating to blood alcohol content, does not require any degree of impairment.
Moreover, the statute does not even require that the statutory blood alcohol percentage, as
determined by a test administered after arrest, be related to the time of driving. Like the Maryland
statute at issue in Petrovick, supra, the New Jersey statute"...prohibits any amount of impairment,
rather than impairment to a degree of being rendered incapable of safely driving.
Where, as here, the appellant's conviction in New Jersey did not depend upon proof that he
was unable to drive her vehicle safely, the Compact does not permit suspension of her Pennsylvania
license. There is no evidence that the appellant was incapable of safe driving and there is no evidence
of her blood alcohol content at the time of driving as opposed to the time of testing. Under these
circumstances it cannot be presumed, based on a test result of. 10% or greater, that the appellant's
blood alcohol content at the time of her driving was at a level which rendered her operation of the
vehicle unsafe. In this case, the defendant's New Jersey conviction was a per se conviction. Her test
results were .12% at the time of the testing with no evidence either admitted or permitted in the New
Jersey prosecution which would have shown her blood alcohol level at the time of operation of the
vehicle. Therefore, the New Jersey conviction is not of the type described in Article IV which would
permit a suspension of the appellant's driver's license.
C. The imposition of a one (1) year suspension of the plaintiff's driving privilege by the
defendant foran offense committed in the State of New,lersey, where, as here, the plaintiff had
previously been sentenced for the same conduct under the New Jersey statute and where, as
here, that sentence included a six (6) month suspension of the plaintiffs privilege to drive in
that state, constitutes separate and duplicative punishment and would, therefore, violate the
double jeopardy clauses of the United States and Pennsylvania Constitutions.
The plaintiff pleaded guilty to the New Jersey offense of driving with a blood alcohol level
of. 10 or greater at the time of the testing. She was sentenced for that offense, receiving, as part of
that sentence, a suspension of her privilege to drive an automobile on the highways of New Jersey
for a period of six months. Without any additional or separate wrongful conduct occurring within
the Commonwealth of Pennsylvania and without having been subject to any proceeding in the
Commonwealth of Pennsylvania, the plaintiff stands to have her license suspended a second time by
the defendant, Commonwealth of Pennsylvania Department of Transportation solely as punishment
for her conviction in New Jersey. Not only is the proposed suspension in the Commonwealth
additional to that previously imposed in the Stated of New Jersey, but the Pennsylvania suspension,
one year in length, began, not on the date of the conviction, but some four months later and would
continue long after the suspension in the State of New Jersey will terminate.
It is plaintiff's position that this additional sentence ofsuspension, imposed as a punishment,
in Pennsylvania, for the conduct which had occurred in the State ofNew Jersey and for which plaintiff
had already been punished, violates her rights under the United States and Pennsylvania Constitutions
not to be twice placed in jeopardy for the same offense. The second suspension is clearly punishment
and is clearly for the same conduct for which the plaintiff had previously received a suspension of six
months among other retributive sanctions by the State of New Jersey. It is also clear that the plaintiff
had not committed any offense in the Commonwealth of Pennsylvania.
The Fifth Amendment to the United States Constitution provides, in part , "...nor shall any
person be subject for the same offence to be twice put in jeopardy of life or limb." The double
jeopardy clause prohibits multiple prosecutions for the same offense and multiple punishments for the
same offense. United States v Halner, 490 U.S. 435 (1989). The protections of double jeopardy,
contrary to the literal meaning of the clause, are not limited to the protections of life and limb. The
clause applies to the stated through the operation of the Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 784 (1969).
In Department of Revenue v. Kurth Ranch, 104 S.Ct. 1937 (1994) the United States Supreme
Court held that the protections of the double jeopardy clause are applicable to sanctions that are
denominated as "civil." The legislature's description ofa penalty as civil does not remove it from the
definition of punishment within that term's Fifth Amendment meaning. Haloer, supra.
The license suspensions imposed pursuant to Section 1532 and 1542 are punitive sanctions
subject to double jeopardy analysis. Section 1532 provides for revocations and suspensions triggered
by the defendant Department's receipt of a "certified copy of the driver's conviction." The purpose
behind the provision is to punish and deter violations of the traffic safety and motor vehicle laws of
this commonwealth. See, Appeal of Deems, 39 Pa. Cmwth. 138, 395 A.2d 616 (1978).
In United States v. Haloer, the Supreme court visited the question ofwhether and under what
circumstances a civil penalty may constitute "punishment" for the purpose of double jeopardy
analysis. The court indicated that the focus must be on the legislative purpose. The sanction of
suspension or revocation, intended to be imposed herein, is predicated on a criminal conviction and
serves as a deterrent and punitive purposes. In Haloer, the Supreme Court stated,
" a defendant who has already been punished in a criminal prosecution
may not be subjected to an additional civil sanction to the extent that
the second sanction may not fairly be characterized as remedial, but
only as a deterrent or retribution."
Doublejeopardy protections are, additionally, a subject of Pennsylvaniajurisprudence. Article
1, Section 10 of the Pennsylvania Constitution provides, in pertinent part, that "...no person shall, for
the same offense, be twice put in jeopardy of life or limb." Historically the Pennsylvania Supreme
Courthas given greater double jeopardy protections to individuals charged in Pennsylvania pursuant
to the Court's supervisory powers than the Federal constitutional protections afforded under the Fifth
Amendment. In Commonwealth v. Campana, 314 A. 2d 854 (Pa. 1974) the Pennsylvania Supreme
Courtheld that all offenses arising from the same conduct or criminal episode must be tried in a single
criminal prosecution. In Commonwealth v. Mills, 286 A.2d 638 (Pa. 1971) the court held that
prosecution in Pennsylvania is generally barred for conduct for which the defendant had previously
been prosecuted and convicted in another jurisdiction. Neither of these double jeopardy type
protections are available under the Fifth Amendment. In Commonwealth v. Smith, 615 A.2d 321
(Pa. 1992) the Pennsylvania Supreme Court held that the Pennsylvania Constitution provides greater
10
and more expansive doublejeopardy protections than does its federal counterpart. TheSmithholding
is important because it signals the beginning ofa new, independent approach to analyzing protections
under Pennsylvania's double jeopardy clause. See, Sosnov, Leonard, Criminal Procedure Rights
Under the Pennsylvania Constitution, 1993.
The double j eopardyanalysi s of license suspensions is not without precedent. Courts in the
State of Florida and Ohio have applied doublejeopardy analysis to the issue of license suspensions
as punishment for criminal activity. The court in Ohio, State v Gustasfson, No. 93-TR 5344
(Mahoning County, Ohio, November 16, 1994) dismissed a prosecution for Driving Under the
Influence where an administrative license suspension had been previously imposed. ThecourtinState
v. Reilly, No. 96-666IMMIO (Broward County, Florida, December 22, 1994) held the same.
The double jeopardy implications in this case are clear. The license suspension system
operates as a punitive response to the receipt of certain convictions in separate proceedings arising
out of the same conduct. Where, as here, the plaintiff was prosecuted for her conduct in the State
of New Jersey, was punished for that conduct in the State of New Jersey which punishment included
a license suspension of six months, and committed no act in Pennsylvania for which he could be
prosecuted, any additional suspension ofherdriving privileges in the Commonwealth of Pennsylvania
constitutes a violation of the plaintiffs doublejeopardy protections afforded by the United States and
Pennsylvania Constitutions.
Unlike the federal decisions in the area of double jeopardy, the decisions of the courts of the
Commonwealth of Pennsylvania focus on the rights of the individual. In Mills, supra, 641, the
Pennsylvania Supreme Court, speaking of the doublejeopardy clause and other protections afforded
through the operation of the Bill of Rights, indicated,
"The striking feature of the aforementioned rules and policies is that
the focus is always on the individual, on a person's basic and
fundamental rights. This feature is the common thread that runs
across all ofthe provisions of the Bill of Rights, and we believe this is
the element the Supreme Court failed to adequately consider..."
The fact that the Pennsylvania Court has focused on the effect of the government action on the
individual and not, as the United States Supreme Court, on the interest of the government, is made
even more clear in Mills. The court's opinion in Mills indicates that
"It appears to us that the only penological justification for permitting
a second prosecution and punishment for the same offense even where
different sovereigns are involved is out and out punishment, and we
certainly hope that at this late date in history of the development of
the penal system of this Commonwealth and the Nation, that
incarceration for a criminal act stands on stronger footing than an eye
for an eye."
Mills, supra, 641.
Where, as here, the imposition ofa second punishment of acme yearsuspension, consecutive
or in addition to the suspension imposed by the New Jersey Department of Transportation, is not
purely remedial, the suspension by PennDot, violates the double jeopardy clauses of the United States
and Pennsylvania constitutions. In PennDot v. McCaffeM, et.al., 34 Phila.462 (1997)', Judge Jenkins
found that although mindful of the "remedial aspect of a license suspension," the constitutional
dictates of Haloer "require the second and subsequent purported civil sanction be solely remedial in
nature and have no punitive aspect." The court stated,
"The DOT suspensions constitute second punishment in a second
proceeding and are clearly based on the same conduct which gave rise
to initial punishment, which was imposed as a result of the New Jersey
DUI convictions. This second punishment... is prohibited by the
double jeopardy clauses of both the federal and state constitutions."
Judge Jenkins distinguished the holding of the Commonwealth Court in Bickert v. PennDOT, 688
A.2d 792 (1997) which had held that license suspensions on top of other criminal penalties did not
violate double jeopardy protections. The case is distinguishable, however, because in Bickert, the
driver was not suspended as a result of the interstate compact; DOT dis not impose an additional
suspension on top of a suspension imposed by another state; and Bickert had the right to a criminal
trial in Pennsylvania. By contrast, the plaintiff herein was suspended twice, once in New Jersey and
once in Pennsylvania the suspension was not concurrent and would, in effect, result in a suspension
in excess of one year. The second suspension lost the cloak of remediality and became purely
`A copy of this opinion is attached hereto as Exhibit D.
12
punitive.
Therefore the imposition, by the defendant, of the severe license sanction of suspension
following the criminal penalty and similar, though less lengthy, license sanction in the State ofNew
Jersey following the plaintiffs conviction in that state constitutes a second punishment prohibited by
the double jeopardy clause of the United States Constitution and Article I, Section 10, of the
Pennsylvania Constitution.
D. The imposition of a one (1) year suspension of the plaintiffs driving privilege by the
defendant for an offense committed in the State of New Jersey violates the defendants right
to due process under the Pennsylvania and United States Constitutions, where, under New
Jersey law, one charged under the New Jersey statute is not entitled to a jury trial or the right
to assert certain defenses, and where, as here, a defendant charged with the similar offense of
driving while intoxicated in the Commonwealth of Pennsylvania would be entitled to a trial
by jury and would have the right to assert defenses not available to one charged in New Jersey.
The Pennsylvania Constitution, Article 1, Section 6, provides that "Trial by jury shall be as
heretofore, and the right shall remain inviolate. The General Assembly may provide, however, by
law, that a verdict may be rendered by not less than five-sixths of the jury in a civil case." The
constitutional right to a jury trial is repeated in Article 1, Section 9, ofthe Pennsylvania Constitution
which reads,
"In all criminal prosecutions the accused hath a right to be heard by
himselfand counsel, to demand the nature and cause of the accusation
against him, to meet the witnesses face to face, to have compulsory
process for obtaining witnesses in her favor, and, in prosecutions by
indictment or information, a speedy public trial by an impartialjury of
the vicinage; he cannot be compelled to give evidence against himself,
nor can he be deprived of her life, liberty, or property, unless by the
judgment of her peers or the law of the land. The use of a suppressed
voluntary admission or voluntary confession to impeach the credibility
of a person may be permitted and shall not be construed as compelling
a person to give evidence against himself."
The Pennsylvania right to a jury trial in all criminal cases is further codified in 42 Pa.C.S.A. 5104,
which provides,
13
(A) General Rule.-- Except where the right to jury is enlarged by
statute, trial by jury shall be as heretofore, and the right thereof shall
remain inviolate. Trial by jury may be waived in the manner
prescribed by the general rules."
Therefore, it is abundantly clear that the right to a jury trial is guaranteed to those charged with
criminal offenses and is deserving of protection in this Commonwealth. The right is applicable in this
Commonwealth to all charges involving drinking and driving.
Unlike the Pennsylvania situation where a defendant charged with driving under the influence
is entitled constitutionally and statutorily to a trial by jury, a defendant charged in the State of New
Jersey, under the New Jersey Statute, is not entitled to a trial byj ury. All trials on this charge are held
before a Municipal Courtjudge sitting without ajury. This difference creates an important distinction
between the New Jersey and Pennsylvania prosecutions for the offense both statutorily and
constitutionally.
Before any person charged with this offense in Pennsylvania could receive a conviction and
suspension of her or her driving privileges, he or she would be entitled to a trial by jury. If the
individual chose to waive her or her right to jury trial, that waiver would be required to be made on
the record and would be required to be knowing, intelligent, and voluntary.
Having firmly embodied the right to trial byjury for this and other criminal offenses into the
Constitution and Statutes of the Commonwealth of Pennsylvania, the citizenry and legislature of this
Commonwealth have firmly mandated that the protection of trial by jury stand between the accused
and those sanctions. In contrast, the citizens of New Jersey and its legislature have not made the
decision to provide the right in charges of driving under the influence. In Pennsylvania, neither the
Commonwealth, its counties, nor its municipalities may punish an individual charged with a violation
of the criminal laws, including those relating to driving while intoxicated without firs affording the
charged person with the opportunity for ajury trial Ajury trial is a fundamental right provided by the
Pennsylvania Constitution and statute, applicable to charges of driving under the influence. The
attachment of this right in Pennsylvania creates a substantial dissimilarity between the Pennsylvania
and New Jersey Statutes making application of the suspension provisions for out of state convictions
14
inapplicable.
To the extent that 75 Pa.C.S.A. 6146 allows the defendant to suspend the driver's license of
an individual convicted in another state of an offense "essentially similar" to Section 3731 (relating
to driving while intoxicated) as enumerated in Section 1532 (relating to revocation or suspension of
operating privileges) it Illy constitutionally do so only in those situations where the conviction occurs
in astate which provides the individual charged with the same constitutional and statutory protections
as are guaranteed to those charged in this Commonwealth. To allow the statute to be interpreted
otherwise would in effect deny the individual whose license is suspended here in Pennsylvania a
fundamental Constitutional right and a statutorily guaranteed right without due process of law.
Although it is generally within the power of the Commonwealth to regulate the procedures under
which its laws are carried out, the chosen procedure may not "offend some principle of justice so
rooted in the traditions and conscience or our people as to be ranked as fundamental." Medina v.
California, 112 S.Ct. 2572 (1992). Pennsylvania courts have held that the denial of the right to a jury
trial is a denial of a fundamental right and therefore violates the due process rights of the individual.
In In>?ebrethsen v. Inkebrethsen, 661 A.2d 403 (Pa.Super. 1995) the court indicated,
"Here, appellant was subject to criminal contempt as she did not have
the opportunity to purge herself of the contempt finding.
Consequently, she was entitled to the essential procedural safeguards
that attend criminal proceedings generally. Crozer-Chester Medical
Center v. Moran, 522 Pa. 124, 132; 560 A.2d 133, 137 (1989) See
also, Commonwealth v. Brown, 424 Pa. Super. 101, 111; 537 A.2d
840 (1993); Fatemi v. Fatemi, 371 Pa. Super. 101, 111; 537 A.2d 840
(1988). These protections include the right to bail, the right to be
notified accusations against him or herand reasonable time to prepare
a defense, the assistance of counsel, and the right, upon demand, to a
jury trial. Schnabel, 338 Pa. Super. at 387; 487 A.2d at 1333."
The plaintiff in this matter was not entitled, under New Jersey law, to ajury trial for an offense which,
under Pennsylvania law would have included that associated and guaranteed right. The suspension
of the plaintiffs driving privileges without the benefit of a jury trial or the ability to knowingly,
voluntarily and intelligently waive that right denied the plaintiff due process of law.
The plaintiffs equal protection rights would also be violated by the suspension of her license.
15
Those whose licenses are suspended for driving while intoxicated in the Commonwealth of
Pennsylvania would have, as noted above, been entitled to a jury trial as of right. In addition,
Pennsylvania law provides the defendant charged in this Commonwealth with the right to present a
defense that her blood alcohol level increased after her driving and that at the time of her driving her
blood alcohol level would have been below the presumptive level of. 10. Further, a defendant
charged in Pennsylvania has the opportunity, for a first offense, to enter into an ARD program which
would result in a lesser sanction than if he were tried and convicted. There is no such program
available for those charged in New Jersey. The disparate treatment of those who are licensed by the
Commonwealth of Pennsylvania based solely on the location of their conduct for which they are
charged, tried and convicted, or to which they enter pleas of guilty, serves no legitimate state interest
and, therefore, violates the constitutional guarantee of equal protection of the laws. Both the United
States and Pennsylvania Constitutions protect the individual's right to equal protection of the laws.
In Commonwealth v Kerry Minnich, 662 A.2d 21 (1995) the Superior Court found that "The equal
protection clause mandates that those statutory classifications which do not implicate "fundamental
interests" or "suspect classes" may bear a rational relation to legitimate state interests. The court
further found that the Pennsylvania Supreme Court has held that Article III, Section 32 of the
Pennsylvania Constitution contains the identical mandate. Citing, Baltimore and Ohio Railroad Co.
V. Department of Labor, 461 Pa. 68, 83; 334 A.2d 636, 643 (1975).
In State v. Graff, 121 N.J. 131 (1990) the New Jersey Supreme Court specifically found that
First and second driving while intoxicated offenses are not constitutionally serious, thus defendants
do not have the right to ajury trial for those offenses." See also, State v. Hamm, 121 N.J. 109
(1990) and State v. Samare, 231 N. J. Supra. 134 (1989) In State v. Nemesh, 228 N.J. Super 597
(1988) the court noted that the New Jersey approach to this issue "differs" from 44 other states which
guarantee the right to a jury trial where a defendant is charged with driving while intoxicated.
Importantly, unlike the Pennsylvania courts, the New Jersey Courts have held that this deprivation
does not violated New Jersey's Constitution.
While the specific wording of the Pennsylvania and New Jersey statutes may be somewhat
similar, they are Constitutionally and procedurally dissimilar. Where, as here, the Constitutions of
the two states, and the case law developed thereunder treat those charged with driving while
16
intoxicated in a clearly dissimilar manner, the statutory similarity loses its importance.
Commonwealth v. Whisnant, 568 A.2d 259 (Pa. Super. 1990) is factually distinguishable from the
instant mutter. In that matter the plaintiff was convicted in Pennsylvania of a third offense driving
while intoxicated. That case held merely that the defendant's prior convictions in New Jersey could
be counted as prior offenses in Pennsylvania for purposes of the enhanced penalties imposed by the
Pennsylvania court.
In this case, the plaintiff has been charged and convicted of only one offense. The defendant
seeks to punish him a second time for that very offense. The plaintiffs offense was committed in
New Jersey. While the statutory definitions are similar in New Jersey and Pennsylvania, the
constitutional and procedural rights associated with those offenses are not. In both Whisnant, supra,
and Commonwealth v. Bolden, 532 A. 2d 1 172 (1987) the defendant was charged in Pennsylvania,
facing Pennsylvania sanctions, and entitled to the rights afforded a defendant charged in this
Commonwealth. The enhancement of Pennsylvania punishments for an offense committed in this
Commonwealth is not the equivalent of second punishment for an offense committed in another state.
Additionally, the Pennsylvania statute, unlike the New Jersey statute, contains a defense written into
the statutory language. 75 Pa.C.S.A. 3731 provides, in pertinent part, that it shall be a defense to a
prosecution under the section if the defendant shows by a preponderance of the evidence that the
"person consumed alcohol after the last instance in which he drove, operated, or was in physical
control of the vehicle." This defense is not available to an individual charged in New Jersey. The
plaintiff herein, deprived of this defense, is denied equal protection of the laws and substantive due
process.
Since the right to a jury trial is "fundamental" and no legitimate state interest is served by
allowing the suspension of a Pennsylvania resident's Pennsylvania driver's license for an offense
committed outside of this state without the Constitutional and statutory benefits attendant in
prosecutions for that offense in Pennsylvania, the suspension ofa Pennsylvania resident's driver's
license fora New Jersey conviction violates the defendant's right to due process and equal protection
of the laws.
E. Where, as here, the plaintiff was not advised at the time of her plea in the State of New
Jersey, that her license would be suspended in the Commonwealth of Pennsylvania and was
17
further not advised that her suspension would be in addition to and in large part consecutive
to her New Jersey suspension, the plea and conviction is constitutionally infirm and may not
serve as the basis for a suspension in the Commonwealth of Pennsylvania.
In the instant case the plaintiff entered, in New Jersey, a plea to the offense of driving under
the influence. Al the time of her guilty plea he was advised only of the New Jersey consequences of
entering such a plea. At no time was he advised that her license issued by, or her privilege to drive
in, the Commonwealth of Pennsylvania would be affected in any way. One of the essential elements
of due process is notice. The United States Supreme Court held, in Henderson v. Morgan, 426 U.S.
637 (1976) that a guilty plea could not be voluntary in that sense that it constituted an intelligent
admission that the defendant committed the offense unless the defendant received real notice of the
true nature of the charge against him. This right to notice is the "first and most universally
recognized requirement of due process." Smith v. O'Gradev, 312 U.S. 329 (1976). The
Pennsylvania courts have held a guilty plea to be invalid in several situations involving lack of notice.
See, Commonwealth v. Fay, 439 A.2d 1227 (Pa. Super. 1992) (defendant pleading guiltily entitled
to be advised of maximum punishment); Moore v. Commonwealth, 384 A.2d 1206 (Pa. 1978);
Commonwealth v. Sperry, 577 A.2d 264 (Pa. Super. 1990) (defendant not advised of possible
sentence enhancement); and Commonwealth v. Persinger, 625 A.2d 1305 (1992) (defendant not
advised of consecutive nature an aggregate term of sentence).
In this case the plaintiff was not advised of the fact that her guilty plea, in New Jersey, would
affect her Pennsylvania driver's license. Nor was he advised of the fact that her suspension in
Pennsylvania would be twice as long as that imposed in New Jersey. The statutory scheme under
which the Pennsylvania Department of Transportation believes it is permitted to suspend the
Pennsylvania driver's license ofa Pennsylvania resident for an offense committed in NewJersey does
not provide for or require such notice. Then statutory scheme therefore violates the plaintiffs rights
to substantive due process. The failure to provide notice deprived the defendant of due process and
rendered her guilty plea involuntary.
Plaintiff is further protected from the suspension of her license in this situation by the
application of the United States and Pennsylvania Constitutional proscription against "ex post facto"
legislation. Article I. Section 9, of the United States Constitution and Article I, Section of the
18
Pennsylvania Constitution provide this protection. Although the provision is most often applied in
situations involving legislation and is not of its own force applicable to the judicial branch, in
circumstances such as this, where the plainti ff is being punished in a manner separate and distinct from
that which he anticipated and that of which he was provided notice, the provisions of the
Constitutions require that this court protect the plaintiff from unanticipated consequences of her plea
by denying the defendant the right to suspend the plaintiff's license. The principle upon which the
"ex post facto" clauses are based is the notion that persons have a right to a fair warning of that
conduct which will give rise to all penalties that could be imposed. See, Marks v. United States, 430
U.S. 188 (1977).
The suspension of the plaintiffs driving privileges herein is precisely the type of consequence
which the Constitutions ol'the United States and of Pennsylvania were intended to prevent. The
plaintiff chose to plead guilty and did so only upon being provided with notice of the intended
penalties, including the New Jersey suspension of her license, to be imposed pursuant to her plea.
He was provided no notice of any potential Pennsylvania sanctions. If the statute allowing one state
to suspend the license of a driver as a result of a conviction in another state, the statute itself must
contain provisions for notice. In the absence of such a notice requirement the court could have and
should have provided the plaintiff with such notice prior to the acceptance of the plea.
F. Where, as here, the plaintiff, a Pennsylvania resident, would be entitled to enter into
and complete certain alcohol related driving programs and would, as a consequence, be
entitled to maintain her driving privileges if convicted in the Commonwealth of Pennsylvania,
but denied that ability and right due to the fact that her conviction was in the State of New
Jersey, the proposed suspension of the plaintiffs driving privileges in the Commonwealth of
Pennsylvania as a direct consequence of the Ncw Jersey conviction, violates the plaintiff's right
to equal protection of the law.
The plaintiff, had he been arrested and charged with the offense ofdriving while intoxicated
in the Commonwealth of Pennsylvania, would have been eligible for entry into ARD, and, as a
consequence would have been entitled to a reduced suspension of her license to as little as a one
month suspension. Since he was convicted in New Jersey, however, this advantage was not available
19
to him. As a result the defendant intends to suspend her driving privileges for a full year without
allowing the plaintiff entry into an ARD program where, as here, he is and was otherwise eligible.
Both the United States and Pennsylvania Constitutions protect the individual's right to equal
protection of the laws. In Commonwealth v Minnich, supra, the court found that the equal protection
clause mandates that only those statutory classifications which do not implicate fundamental interests
or suspect classes bear a rational relationship to legitimate state interests. The court further held that
the Pennsylvania Constitution, Article 111, Section 32, contains an identical mandate.
Since there is no legitimate basis for denying ARD entry to an individual convicted in another
state while allowing individuals convicted in ther Commonwealth that entry, the denial violates the
protections afforded by the equal protection clauses of the United States and Pennsylvania
constitutions. The persons are similarly situated and the denial of the right to one while granting the
right to the other results in disparate treatment in the absence of a legitimate state interest. See,
PennDOT v. McCafferty, et. al., 34 Phila. 462 (1997)'. In that case the court based its decision that
equal protection guarantees were violated where, as here, the plaintiff was not given the opportunity
to enter into an ARD program. The court stated, "Even the discretion of a district attorney to allow
ARD is subject to the requirement that the decision not be wholly, patently unrelated to the protection
of society or likelihood of rehabilitation." Commonwealth v. Morrow, 650 A.2d 907 (1994). The
court found, therefore, that there was no "rational basis for a conclusion that an out-of-state DUI
conviction requires such a harsh punitive civil sanctions as would not be imposed had the offense
occurred in ther Commonwealth. Hence, where such occurs, the equal protection standard has not
been upheld, as well as double jeopardy." The opinion in McCafferty, supra, was issued by Judge
Jenkins of the Philadelphia Court of Common Pleas. The court noted that the sanction of driver's
license suspension is "punitive" in nature and that to the extent that the Pennsylvania Suspension is
greater in length than the New Jersey imposes suspension, the imposition of that more lengthy and
"punitive" suspension "undermines" the Pennsylvania driver's constitutional rights under the
Fourteenth Amendment to the United States Constitution and in the manner Articles III and IV of
the Driver's License Compact, as codified in 75 Pa.C.S.A. Sec. 1581, et. seq., have been applied to
'See Exhibit D.
20
the prejudice of Pennsylvania drivers. 34 Philadelphia County Reporter, at 465.
Judge Jenkins further indicated that there was and is no "rational basis for a conviction that
an out of state DUI conviction requires such harsh punitive civil sanctions as would not be imposed
had the offense occurred in this Commonwealth." For that reason, wrote Judge Jenkins, where that
second harsh penalty is imposed, "the equal protection standard has not been upheld, as well as
doublejeopardy. 34 Philadelphia County Reporter, at 475-476.
G. There is no statutory authority for thesuspension ofa Pennsylvania driver's license for
an offense committed in another state.
In Pennsylvania, the DUI statute, 75 Pa.C.S.A. 3731, does not provide for driver's license
suspensions. Suspensions are imposed pursuant to 75 Pa.C.S.A. 1532 (b), which provides as follows:
"The department shall suspend the operating privilege of any driver
for 12 months upon receiving a certified record of the driver's
conviction of section 3731 (relating to driving under the influence of
alcohol or controlled substance)..."
The statute contains no similar or corresponding provision for the suspension of a Pennsylvania
driver's operating privileges for out-of-state convictions even where the out-of-state conviction is for
an offense "substantially similar" the Pennsylvania statute.
The statutory construction act, 1 Pa.C.S.A. 1901, et.seq., requires that statutory language be
strictly construed by the courts. That section requires that the words contained in statutes be given
their plain meaning. In Kusza v. Maximonis, 363 Pa. 479; 70 A.2d 329 (1950) the Pennsylvania
Supreme Court indicated clearly that missing words or terms in statutes may not be supplied by the
courts of this state. In addition, Pennsylvania law requires that "When the words ofa statute are clear
and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit." 1 Pa.C.S.A. 1921 (b). The Pennsylvania Department of Transportation cannot request that
this court suspend driver's licenses of Pennsylvania drivers for offenses committed in other states
where, as here, the language of the statute clearly and unambiguously fails to provide such authority.
As 75 Pa.C.S.A. 1532 (b) does not mandate a one year suspension ofa Pennsylvania driver's
21
license for an offense committed in another state even where that offense is derived from statutory
language which is considered by PennDOT to be the equivalent of the Pennsylvania statute, the
suspension of the plaintiffs license herein must be vacated. This argument was upheld by Judge
Jenkins of the Philadelphia Court of Common Pleas in McCafferty, supra. The court found that the
suspension of a Pennsylvania drivers' license for an offense committed in another state presented a
"procedural due process" problem. The court found that the petitioner had a "liberty interest in not
being subject to arbitrary suspension." Judge Jenkins indicated that "DOT's practice of considering
all New Jersey Section 39:4-50 convictions as the equivalent to section 3731;...may or may not have
been intended by the legislature." Absent legislative guidance, the process was procedurally flawed.
McCafferty, supra 479.
A similar result was reached in Commonwealth v. Troisi, Delaware County Court ofCommon
Pleas, No. 98-5221, Joseph F. Battle, J.' In that case, Judge Battle held that the Commonwealth of
Pennsylvania lacks the statutory authority to suspend operating privileges under 75 Pa.C.S. 1532.
The court stated that in Pennsylvania, Sec. 3731 does not provide for the suspension of driver's
licenses. Suspensions are imposed only under See 1532. That section does not provided for the
suspension of a driver's license for an out of state conviction. Judge Battle held,
"Because 75 Pa.C.S. 1532(b) does not mandate a one year license
suspension for a violation of an offense equivalent to 75 Pa.C.S.A.
3731, the appellants were not properly charged and the suspension
appeals must be sustained."
H. The New Jersey offense of driving under the influence is not the "equivalent" of the
Pennsylvania Statute.
The New Jersey statute, N.J.S.A. 39:4-50 (a) provides, in pertinent part, that "A person who
operates a motor vehicle while under the influence of intoxicating liquor..." is guilty of the offense.
Pennsylvania's statute, 75 Pa.C.S.A. 3731, criminalizes driving after consuming alcohol only if the
7See Exhibit C.
22
person is under the influence "...to a degree which renders the person incapable of safe driving." This
statutory difference is not insignificant when determining whether the statutes are "equivalent." In
determining whether this statutory distinction is an indication that the statute of New Jersey is not
"equivalent" to the Pennsylvania statute, this court is guided by Olmstead v. Department of
Transportation, 677 A.2d 1285 (Pa.Cmw1th. 1996) in which the Commonwealth Court found that
New York's statute on driving while the driver's ability was "impaired" was not the equivalent of the
Pennsylvania statute.
The Pennsylvania Constitution, Article 1, Section 6, provides that "Trial byjury shall be as
heretofore, and the right shall remain inviolate. The General Assembly may provide, however, by
law, that a verdict may be rendered by not less than five-sixths of the jury in a civil case." The
constitutional right to ajury trial is repeated in Article 1, Section 9, of the Pennsylvania Constitution
which reads,
"In all criminal prosecutions the accused hath a right to be heard by
himself and counsel, to demand the nature and cause of the accusation
against him, to meet the witnesses face to face, to have compulsory
process for obtaining witnesses in her favor, and, in prosecutions by
indictment or information, a speedy public trial by an impartialjury of
the vicinage; he cannot be compelled to give evidence against himself,
nor can he be deprived of her life, liberty, or property, unless by the
judgment of her peers or the law of the land. The use of a suppressed
voluntary admission or voluntary confession to impeach the credibility
of a person may be permitted and shall not be construed as compelling
a person to give evidence against himself."
The Pennsylvania right to ajury trial in all criminal cases is further codified in 42 Pa.C.S.A. 5104,
which provides,
(A) General Rule.-- Except where the right to jury is enlarged by
statute, trial byjury shall be as heretofore, and the right thereof shall
remain inviolate. Trial by jury may be waived in the manner
prescribed by the general rules."
In addition, Pennsylvania law provides the defendant charged in this Commonwealth with the right
23
to present a defense that her blood alcohol level increased after her driving and that at the time of her
driving her blood alcohol level would have been below the presumptive level of .10. Further, a
defendant charged in Pennsylvania has the opportunity, for a first offense, to enter into an ARD
program which would result in a lesser sanction than if he were tried and convicted. There is no such
program available for those charged in New Jersey.
In addition, the New Jersey statute itselfdiffers from the Pennsylvania Statute in at least two
respects. The first is that a New Jersey defendant can be convicted of driving while intoxicated even
if not to a degree which renders him or her incapable of safely operating a motor vehicle. Second,
New Jersey's statute permits a defendant to be convicted for allowing another person to drive her
or her vehicle while intoxicated. Only part of New Jersey's statute is "substantially similar" to that
of this Commonwealth; i.e. that portion of Section 3731 which provides for conviction for driving
with a blood alcohol content of. 10 or greater. Judge Battle held that "the offenses for which
Appellants were convicted were not substantially similar to Pennsylvania's DUI statute, as required
by the Compact." He therefore granted the appeals of the Pennsylvania drivers.
Moreover, the Pennsylvania Statute which allowed for convictions of persons whose blood
alcohol content was .10 or more as indicated by testing within three hours of the act of driving' has
been held unconstitutional. Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996). The New Jersey
statute continues to allow a conviction of a person whose blood alcohol at the time of the testing is
greater than. 10 regardless of the time frame of the testing. N.J. S.A. 29:4-50(a) provides, in pertinent
part,
"A person shall not drive, operate or be in actual physical control of
the movement of any vehicle:
(5) if the amount of alcohol by weight in the blood of the person is
0.10% or greater at the time of a chemical test of a sample of the
person's breath, blood, or urine."
In Barud, supra, the court indicated,
'75 Pa.C.S.A. 3731(a)(5).
24
"We conclude that 75 Pa.C.S.A. 3731(a)(5) is void for vagueness and
overbreadth. First, without requiring any proof that the person
actually exceeded the legal limit of.10% at the time of driving, the
statute sweeps unnecessarily broadly into activity which has not been
declared unlawful in this Commonwealth, that is, operating a motor
vehicle with a BAC below. 10%."
As indicated, New Jersey proscribes and makes criminal the driving ofa vehicle when a subsequent
test reveals a blood alcohol content of.10%or greater regardless of the blood alcohol content of the
driver at the time of the driving and regardless of whether the consumption of alcohol rendered the
driver incapable of safe driving. Pennsylvania has, unlike, New Jersey, required a showing beyond
a reasonable doubt that the driver's blood alcohol content be .10% or greater at the time of the
driving. Commonwealth v. Jarman, 601 A.2d 1229 (Pa. 1992). In State v. Tischio, 527 A.2d 388
(N.J. Supreme Court, 1987) it was held, contrary to Pennsylvania law,
We now hold that a defendant may be convicted under N.J.S.A. 39:4-
50(a) when a breathalyzer test that is administered within a reasonable
time after the defendant was actually driving his vehicle reveals a
blood-alcohol level of at least 0.10%. We rule that it is the
blood-alcohol level at the time of the breathalyzer test that constitutes
the essential evidence of the offense. Consequently, we hold further
that extrapolation evidence is not probative of this statutory offense
and hence is not admissible.
This contradiction between New Jersey law and Pennsylvania law compels a conclusion that the
statutes are irreconcilable and, therefore, not equivalent.
M. Conclusion.
For all of the above reasons the plaintiffs appeal of the Department of Transportation's
intended suspension of the plaintiffs license must be sustained.
Dated: ?/` t 16,0
Respectfully submitted,
6. J. 'Michael Farrel , Esq.
25
'P?? i 6vr- k
• U'O-VJ LJ/I VJ•GJi 11 ? 1\V??
AIM
George Go
Gordon February Term, 1999
V.
Pennsylvania Department of
Transportation
No. 2667
Halbert, J. „Tune 16, !a99
i
OP-v=O 7
The Pennsylvania Department o' Transportation issues
notice of z one-year suspension of
driving arivi__ces to Gec_ce
Gordon on _ebruary 9, 1999, based up= a gu4l tV Lea entered'bv
' Gordon in New jersey for driving undethe influence O: alco1201,
pursuant to N.J. Sr tat.Ann. Sec. 39:4-c0.
Gordon filed a statutory appeal contesting the suspension
notice. The matter came to trial be=ore this Court on April 23,
1999. Without taking further evidence, this Court denied
i
,Gordon's statutory appeal based upon Gordon's guilty plea in 'New
.Jersey.
Gordon has appealed this Court's determination to the
Commonwealth Court of Pennsylvania.
1 ,
THE COURT OF COMMON PLEAS OF ?FS LADELPHIA COUNTY
FIRST JUDICIAL DISTRICT'?OF'-P?SYLVANIA
CIVIL TRIAL DIVISION
r; 1999 ???''
?
2 Z i
r?
08-05-i`J`1y W;ezrPi rrtvu ?'_ ..
Throughout the proceedings, George Gordon raised two
defenses. First, he contended that because the New Jersey Court
entered a civil reservation at the time he entered his guilty '
plea, basing the suspension of his driving privileges upon this
was improper.
Gordon, secondly, contended that the notice of convictiion
that New jersey forwarded to DOT was deficient, lacking
information required under Article III of the interstate cos.Dact
75 Pa.C.S.A. s;581.= This =rcvision enables ?ennsylvania to'give
recognition to certai:a c, v1C__OnS OCCL'r_1^C .:! other
state,-: as
thougn thev ;-ad occurred
On initial review, the Ccur`
w^:ch was cog-+_ zar .t
c- t t'^e
severity of t o offense, rejected Gcrdon's contentions resul?' n-
in t2he revocation of his driving privileges for one year.
Careful post-trial consideration, however, requires this
Court to recognize the validity of Gordon's first contentioniand
give effect to the civil reservation clause found in
'N.J.R.7;6-2(a)(I) under the Full Faith and Credit clause of the
1Petiticner alleges that the report was deficient because it
failed to describe both the violation that occurred and the idea
that was entered.
2
08-05=1999 03:24PM Hwll .-
United States Constitution (U.S. Const. Art. IV, 51). The case,
therefore, should be remanded for further evidentiary
proceedings, argues Gordon.
The record reveals that George Gordon entered a guiltyjplea
to driving under the influence of alcohol in New Jersey pursuant
to N.J. Stat. P.nn. sec. 39:4-50(a) on December7, 1998, for:an
offense occurring on October 10, 1998. At the time of the guilty
plea, the New Jersey Court entered a civil reservation purs-Uant
to N.J.R. 7:6-2(a)(1). Entering a civil reservation prohibits
.the use o-- the g'ailty plea as evidence in any civil proceeding.'
A civil reservation does not provide immunity from civil action,
where evidence Can De introduced anew. ga$ ^al l! Asphalt Co. y.
NAJers?ov DOT, 365 n. 2d 432, at 935 (N.J. Sup. Ct., 1975).
The Full Faith and Credit Clause of the United States
°N.J.R. 7:o'-2(a)(1) provides:
A defendant may plead not guilty or guilty, but the court
may, in its discretion, refuse to accept the guilty plea.
The court shall not,however, accept a guilty plea without
first addressing the defendant personally and determining by
inquiry of the defendant and, in the court's discretion,; of
others, of the nature of the charge and the ccnsequences of
the plea and that there is a factual basis for the plea:
Upon the request of the defendant, the court may, at the
time of the acceptance of the guilty plea, order that trie
plea shall not be evidential in any civil proceeding.
3
08-05-1999 03:24PM FROM
Constitution requires Pennsylvania to accept the judicial
proceedings, public acts and records of neighboring states and
give them the same effect as they would have in the foreign
state. U.S. Const., Art. IV, 51. In the course of this
proceeding, none of the parties have cited any Pennsylvania
authority determining the effect that a civil reservation in New
jersey has on a civil proceeding in Pennsylvania.
This exact issue, however, was considered in New York.; In
7a=lard Da4-jes v Barber, 478 N.E.2d 1314 (N.Y., 1985), the
petitioner (?armland Dairies) pled g',:_lty to price r-4gai-i-la; -the
e
New Jersey Court entered a cruel reservation w_tr_ the plea. -
Court of Appeals of New York ."Jarred -t- of the New jersey
judgment in a New York C4V11 proCpeding, ruling that sl1Ch Use of
the plea was precluded by the civil reservation. The New York
Court gave full faith and credit to the New Jersey :ule, stating,
"The full faith and credit clause requires us to give -armlahd's
!judgment the same effect in New York." 478 N.e',.2d at 5317.
In general, Pennsylvania has given full faith and credit to
motor vehicle regulations in other states. Aa Win-, of
i'r arsportatioz Bu eau of Dr'v- 1 1C?nsincv Adcock, 520 A.2d
(?a. Cmwlth. 1987) (Pennsylvania court upheld a suspension of
idriving privileges based upon petitioner's conviction urde:
4
IEEE,
08-05-199y 03 G4rm rRU111
Massachusetts statute requiring the suspension of driving
privileges of persons against whom a judgment has been entered in
that state) ; Pine a1co, Department of Transnnrtation. Burnau:of
Traffic Safety v. velix Granito, 452 A.2d 889 (Pa. Cmwlth. 1982)
(in reinstating. one year license suspension for outstanding! Ohio
judgment, the Pennsylvania Commonwealth Court adjudged that;
"Full faith and credit demands that we recognize the judgments of
our sister states and give them at least the same effect and
validity as they enjoy in the rendering state.")
Under the Full Faith and Credi= clause, _-.is Court must give
full faith and Credit to N.J.R. 7:o'-2(a)(_) and remand this case
_or further e'?ident_ary proceed-ngs. While Civ'_rg °-_'=e-=t
c=_ reser-vatiOC S=atLte in New JerS2V may ..irder the e..prtS O.
the Pennsylvania Department c- Transportation, ±t pramctes the
entry of pleas to criminal offenses in New uersev when such pleas
otherwise may not have been entered.
Because the resolution of Gordon's civil reservaticr
argument is dispositive of this case, Gordor's second arg-amert
regarding notice reed not be addressed.
S
)TICE GIVEN UNDER RULE 236
08-05-1999 03:25PM FRUM
i
i
6
BY THE COURT:
/
glaLBERT, J.
1
&-Lk,(str 3
IN THE COURT OF COMMON PLEAS, DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ROCCO ACITO NO. 99-3222
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Respondent
J. Michael Farrell, Esquire, 718 Arch Street, Suite 402S, Philadelphia, PA 19106,
counsel for Petitioner
Marc A. Werlinsky, Esquire, Office of Chief Counsel, Department of Transportation,
Courtside Square, Building 1, 150 Allendale Road, King of Prussia, PA 19406,
counsel for Respondent
ORDER
AND NOW, this ?9 day 1999, upon
consideration of Petitioner's Appeal of the Suspension of his Driver's License, and
response thereto, it is hereby ORDERED and DECREED that said appeal is
SUSTAINED.
BY THE COURT:
seph F. Battle,
IN THE COURT OF COMMON PLEAS, DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ROCCO ACITO NO. 99-3222
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Respondent
J. Michael Farrell, Esquire, 718 Arch Street, Suite 4025, Philadelphia, PA 19106, counsel for
Petitioner
Marc A. Werlinsky, Esquire, Office of Chief Counsel, Department of Transportation, Courtside
Square, Building 1, 150 Allendale Road, King of Prussia, PA 19406, counsel for
OPINION
BATTLE, J.
DATE: 1,2-3C -Sy
Rocco Acito was convicted of driving under the influence of alcohol in the state of New
Jersey. The Pennsylvania Department of Transportation notified Mr. Acito that his driver's
license would be suspended in compliance with 75 Pa.C.S. Secs. 1532(b)(3) and 1581 Article
IV(a)(2) and (c). Mr. Acito has appealed the notice of suspension.
The case of Kiebort vs. Department of Transportation. Bureau of Driver Licensing, 719
A.2d 1139, 1143 (Pa. Cmwlth. 1998) held that the aforesaid statutes do authorize the Department
of Transportation to suspend an individual's driver's license for and out-of-state DUI conviction.
Our Commonwealth Court has also held that the New Jersey DUI statute is substantially similar
to Pennsylvania's, and, therefore, the Department of Transportation has the authority to suspend
an individual's driver's license for a New Jersey DUI conviction. Kiebort, Id.; Seibert vs.
Department of Transportation, Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998).
CIVIL RESERVATION
New Jersey has a rule of court, known as a civil reservation, which, in certain
circumstances, provides that a guilty plea to a DUI offense shall not be used against an
individual in other civil or criminal matters. N.J. R. Crim. P. 3: 9-2. Mr. Acito was granted a civil
reservation by New Jersey for his DUI conviction. The United States Constitution, Article IV,
Section 1, provides that full faith and credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state. In Gallo Asphalt vs. Sagner, 71 N.J. 405,
365 A.2d 932 (1976), two businesses pled guilty with civil reservations in a criminal proceeding.
Based on these pleas, the New Jersey Department of Transportation disallowed them from
bidding on Department of Transportation contracts. New Jersey's Supreme Court held that the
Department of Transportation hearing was a civil proceeding and, therefore, the guilty pleas
could not be used against the Defendants. 365 A.2d at 935. In the case at bar, a license
suspension is a civil sanction for a criminal conviction. This would clearly not be allowed in
New Jersey and, under the full faith and credit clause of the United States Constitution, it cannot
be permitted in Pennsylvania.
Our Commonwealth Court explored the application of the full faith and credit clause of
the Constitution to a license suspension proceeding in Department of Transportation, Bureau of
Driver Licensing vs. Adcock, 103 Pa. Cmwlth. 298, 520 A.2d 118 (1987). At issue was a statute
requiring that PermDOT suspend the license of a driver against whom a judgment had been
entered. A judgment was entered against Adcock in Massachusetts and, thereafter, PennDOT
suspended his license. Our Commonwealth Court upheld the suspension, relying on its holding
in Department of Transportation, Bureau of Traffic Safery vs. Granito, 70 Pa. Cmwlth. 123, 452
A.2d 889 (1982) and stating that "full faith and credit demands that we recognize the judgment
1)
of our sister states and give them at least the same effect and validity as they enjoy in the
rendering state." The New York Court of Appeals addressed the full faith and credit issue
regarding New Jersey's Rule of Criminal Procedure 3: 9-2 in Farmland Dairies vs. Barber, 478
N.E.2d 1314, 489 N.Y.S.2d 713 (1985). In Farmland Dairies, a company was convicted of price
rigging, to which it pled guilty with a civil reservation in New Jersey. While the conviction
generally would be admissible in New York as evidence in the company's application for a
license extension, the New York Court of Appeals held that N.J. R. Crim. P. 3: 9-2 precluded the
use of the guilty plea in the civil proceeding. We believe that the judgment of New York's
highest court is sufficiently persuasive in this matter. Therefore, the civil reservation will be
given full force and effect by this court. Pennsylvania must recognize New Jersey's civil
reservation granted to Mr. Acito. Because of the civil reservation, the Department's action in
suspending Mr. Acito's driver's license is void ab initio.
BY THE COURT:
L
SEPH F. BATTLE, JUDGE
3
G,kA-i 6 IT
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMMONWEALTH OF PENNSYLVANIA, No: 98-5221
DEPARTMENT OF TRANSPORTATION
Vs.
ARTHUR L. TROISI
Marc A. Werlinsky, Esquire for the Department of Transportation.
Courtside Square, Building 1, 150 Allendale Road,
Ring of Prussia, PA 19406
Vincent P. DiFabio, Esquire for the Ar-pellant
1800 E. Lancaster Ave., Paoli, ?A 19301-1533
O R D E R
AND NOW, t0 w'_-, th s ? cav o=J is hereby
ORDERED and DECREED :hat Appellant's drive='s -icense suspension
anne-=1 is GRANTED.
my mHE COURT:
SE?H r. BATTLE, ?•
Section 1581 of the Vehicle Code requires the Department
to treat certain out of state convictions as though they.
had occurred in Pennsylvania. Therefore, as a result of
the Department receiving notification from NEW JERSEY of
your conviction an of an offense which occurred on
, which is equivalent to section 3731 of the Pa.
Vehicle Code, DRIVING UNDER INFLUENCE, your driving
privilege is being SUSPENDED for a period of 1 year, as
mandated by section 1532E of the Vehicle Code.
The notice sent to David Seidman included the appropriate
reference to the Florida DUI statute. Appellants timely appealed
their suspensions oursuant to 75•Pa.C.S. §1530 (Motcr Vehicle
Code).. The cases were consolidated on 11/18/97, and a hearing was
held before this Court on January 22, 1998.
Sack round
Ve Ce.^sE
entered the '..-ere =tee D_
74
%pmpaC_ Cn 7°ece °-'
Prior
a ...._tion of ?a...._. 135: t:c the Motor Je^_.._E _.._E.
attempts in^css the provisions o'_ the Ccmpact , act-_^s zf the
Secretary C_ __aas_0rt2tl0n were ..^.21C ..- be ?.•^•?--'_" ___`wa.^ V.
Commonwealth. Department of Iransmorza-ion. =u-ea Of
_icensino, 708 A.2d 581 (Pa. 1998). Our Supreme Court held that
driver's license suspensions based or. convictions which occurred
prior to the legislative enactment of the Compact were invalid and
that the Secretary had exceeded his authority. All of the cases
row before this Court involve convictions which occurred aster the
Compact was in effect, and Sullivan therefore does not apply.
This Court finds that: 1) Pennsylvania lacks statutory
authority to suspend the appellants' operating nri?ileces under 575
2
a?saapp 1 ,
Pa.C.S. §1532(b)(3); 2) Civil reservations permitted under New
Jersey's Rules of Civil procedure must be given full faith and
credit in Pennsylvania; and 3) the applicable portions of the New
Jersey and Florida DUI statutes are not substantially similar to
Pennsylvania's DUI statute. we must therefore sustain the
foregoing appeals.
Susnens on o° License for Conviction of offense Eouivalent to X3731
Pennsylvania has entered intc a Compact with other states in
which the intent is f r persons who have been ccnvicted of driving
under the _nfi uance of alcchol in ctner states to have the'-r
Denns'v'lvania d-ivar,s licenses S"spended as if the offense had
o • ^°d .......2_ Pen s%*!van-a's stat..te. .... O mDact has been
§l:ji a^ States as fellows:
leg elat_ve-v °_. CteC at - a. .
_V
^?E !'ce?si" a -.h- home 5=ate, or the
^he
fa? __iO^ Or 1ir.tatlO'.'
^ -DOS9S Of S::SDe.^.S lo', 0-
rE the same
sna
l`Ce^Se t0 Operat8 a ^ -=-
C,.e .
eff°-c^ to the Conduct -epo.rted, pu-suant to - ._rt'_
such Ccnduct had 0ccurrec
of this commact, as oulc :_ such
the home state in Wthe c=ase of conv_ctions for:
(2) driving a motor vehicle while under the influence
the
intoxicating liquor or a narcotic drug o under t e
influence of anv other drug to a degree which renders the
driver incapable of safely driving a motor vehicle;
75 Pa.C.S. 61581.
In Pennsylvania, the DUI statute, 75 Pa.C.S. §3731, does not
provide for driver's license suspensions. Suspensions are imposed
pursuant.,to 75 Pa.C.S. §1532(b), which provides as follows:
The department (of transportation) shall suspend the
3
operating privilege of any driver for 12 months upon
receiving a certified record of the driver's conviction
of section 3731 (relating to driving under the influence
of alcohol or controlled substance) . . . .
75 Pa.C.S. 91532(b)(3).
§1532(b) provides for the suspension of operating privileges
for a conviction of §3731. It does not provide for the suspension
of operating privileges ror an out-of-state conviction of an
o-tense "equivalent to" 53731.
The Statutcrv Construction Act i Pa.C.S. §1901 at sec.
recuir=-s this Court to strictly construe the language of statutes.
§3903 recuires t:^.at words and terms in a statute be c'-ven the_r
a_n meaning. Cur Supreme Court aeld in Rusza r. Max"mcnis, 363
Pa. 479, 70 A.2d 329 (1950) - - ....__ts __nno_ supply o=''ssions
res that,
aw -eau-_
a Statute, ... add_ _ _ao^, ?E^:;St_Va..Za -
'r'te are clear and ..c2 =rom a--
"k;aen the W^v rd5 of a S=c_
_
S ..t be disrecarde under t
tV the
- ;t s sp;r_t,?I _ ?a.C._.A. §1921'1b). nerefcre,
pretext o= pcrs_ . ,.
=o c_ve ?cn:I?-1? the
it Would be an ab`: Sc of t.._S Court's authc__ tC
ctaer to suspeng driver's lig_^sas for _ violations _ offenses
"eg`1ivalent to" §3731, where the language of the Statute i5 cl_a.
pad free from ambicu_ty.
Because 75 Pa.C.S. §1532(b) does not mandate a one year
license suspension for a violation of an offense "equivalent to" 75
Pa.C.S. §3731, the appellants were not properly charged and the
suspension appeals must, be sustained.
4
civil Reservations
Five of the appellants pled guilty to New Jersey DUI charges,
reservations, pursuant to New Jersey Rule of Civil
with civil
procedure 3:9-2, which states as follows: "?or Good cause shown
the Court may, in accepting a plea of guilty, order that such plea
NJ.R.Crim.p. 3:9-2.
not be evidential in any Court proceeding. 71 Ni 405, 305 A.2d 932 (1-976), two
in Gas?hal`
v. Sa4n?, 1975;, ith civil reservations in a criminal
businesses pled guilty w
Based on these pleas, the New jersey Department o:
proceo eding.
__ disal_owzd them _rom bidding on Departure--^•t o=
Transportation -hat the
=y's Sur Co--_t held -
loot races. New Jers_ .
1_ -anstC_tZt-O. OCeeC-':rJ a?C
^ran5pprtatiCn hearing was a --C_- - .'
Depart-last •'- _ -
- ?a ?SeG age i::St --•
'. cas CCL•1d net C e.^.a
C
:^.e rv=Cr_ =ja -L'?--? ?'_ ^ a
- bar _i
- -,
c- _ the Case a_ Z
365 i.2d Zt OD. -
CC..J1C..10::. Th-S
_^Si _S a 1 Sar,Ct iO': =Cr Z Cr_ :?=-
snsp -c --`- -der the .uc.
1`<4' Jersey anC, ••
wo 1.4 Cl-a_ -? nCt be 2.. 10wed -eS •..G-, u.j.C.n.
r
_ __ . th and Credit cSZLSe Of _ne
4 Sec. ' cannot pe permittec n
Coast. Art. the =u>'
Our Commorweaan Court explored the applecation o.
the Constitution to a license suspension
faith and credit ci lause of _
T Vf
a`iOn• BLrEZU O_ Dr
Ir-ansoor- --
.-_or _
vroceeding in Dena `men-
1l8 1987). At
Lic<zs nc v. Adcock, 103 pa.Cmwlth. 298, 520 w ?.2d
license Or
m suspend the was a statute requiring that PennI
issue A judcment was
a driver against whom a judgment has been entered.
entered against Adcock in Massachusetts and thereafter' pennDOT
suspended his license. Our Commonwealth Court upheld the
5
'^-ansportation.
suspension, relving on its holding in Deoart_____ ment of
B+reau of " a"fic Safe`v v. Granito, 70 Pa.Cmwlth. 123, 452 A.2d
889 (1982) and stating that "full faith and credit demands that we
recognize the judament of our sister states and give them at least
the same effect and validity as they enjoy in the rendering state."
The New York Court of Appeals addressed the full faith and credit
issue regarding New Jersey's Rule of Criminal Procedure 3:9-2 in
Farmland Da=ies v. Barber, 478 N.E.2d 1314; 489 N.Y.S. 2d 7:3
(1985). .n Farmland jai-ies a conpanv , was convicted of rice
rig which - Bled cuilty wah a ^..vz: reservation New
J- ti _o -
-ion aeneral'y wculd be ad^issible in New
Jers-V, While the .. _..
ien
York as evidence __S BDp lioatioa 4-Or a -:-ccse e.?xt ..EnS--O'r the
3 ; - -Cl'lded
New York Court c:-- v: Dea1S held tea= N?•n•-- _ - -
civil eC_nc WE 72I- eve
J- th-
o ark's "i^^e5= cOu:-- tC be SL___`_ •• _ L
nt
v - N
da1p_ _ ...
_
-- ' force and effect. ?..., -ris ....... and ..:.
,. _rancis Doyle,
suspensions anneals of Susan Salernc, Alice sav=or' -
Jr., and Wavne Conga= are there=cre g.an.ed.
The Compact does not
Jersey and Florida be ider
order for Pennsylvania to
reported." The Cpmpact
++substantially similar."
- statutes ut ••?
require that the DUI
Lt cal to Pennsvlva"_.'_a's DUI statute in
+'give the same effect to the conduct
only requires that the statutes be
75 Pa.C.S. s§1581(a) and (c)•
6
Pennsylvania's DUI statute, 53731, provides in.pertinent part as
follows:
(a) offense defined.--A person shall not drive, operate
or be in actual physical control of the movement of a
vehicle in any of the following circumstances:
(1) While under the influence of alcohol to a degree
which renders the person incapable of safe driving.
(4) while the amount of alcohol by weight in the blood of
. . . an adult is 0.10; or greater; . . .
73 Pa.C.S. §3731.
New Jersey's DUI statute defines a DUI offender in pertinent
part as:
A persor. who operates a notor vehicle while under the
nfluencz oi ntosicati nc --duct or cpe2 _zs a
motor vehicle with a blood a!-ohcl cencent.atl0r... 0: .10
percent or rac=e by wei#m c: alcohol is the defendant's
blood .
Flo__da's D stat_tE s_a__s that p=rsc^. a cuilt• o'_ D_.
_ _ :nc „ in ac ual physical
con--=--- cf a vehicle state and:
(b) _.:E oerSon. .^.aS a bIo0^_ ..: _alcohol _evEl 0= •08
p°rce"t or Mahe:.
The lssu2 O: whether t, rle_ida and ?ennsVl'v a:ad :)U, SLctL'te5
are °substan-`ally S1L11ar° has not prev;ously beer. addressed by
the _ennsvlvaria courts. David Seidman was conv_^_ted o: violating
$QCt10n -(b) of the 5lor4da statute, which requires a •08
alcohol level, while Pennsylvania's statute requires
blood/breath
1 level, is less
a .10 level. Pennsylvania's statute, by using a 0 l
from seeing then
restrictive. This difference prevents this Court
as "substantially similar".
Transportation y•
The Co morwealth cites Department of
7
Whisnant, 390 ?a. Super. 192, 568 A.2d 259 (1990) in support of its
claim that the New Jersey and Pennsylvania statutes are
substantially similar. In Whisnant, the defendant was sentenced as
a repeat offender, based on previous DUI convictions in New Jersey.
Whisnant, 568 A.2d at 260. The defendant claimed that the New
Jersey ccnvictions should not be included in his sentencing because
the decrees of the offenses differed. while Whisnant held that the
two were "substantially identical" fcr the purposes of sentencing,
the court specifically noted that the part of the New Jersev
statute rovidinc for a conviction for allowinc another person to
drive defendFnt's vehicle w::_le -..toY_icated was not an issue on
anneal. _.. ,.:e case at bar, the evidence _..troc_..c_ by PennD0-
does ::Ct siec_-v t7at the appellants Were cp=ra-_ng motor vshicles,
or that thev had *icod alcohol leve'ls o_ mere. The section
New Jersev's D;,- sta-,,._v -_.,c_.._hg _CD_ co::._..t_cn for a_low_nc
another persc_. tc ..r_.e w^i_e _....c%-cat=... 'as .. pa_c_le_ -.. 93731.
In Olmstead Dena^tme t or TransDortat_ rsEu Of Dr_Ire
L' csns_nc, 677 --',.2C :285 (?a.CmWlt... :99c) , c___rmed D=r curiam (Nc.
0006 M.D. kDoeal Docket 1997, filed April 23, 1995), our
Commonwealth Court found that New Yolk's Driving While Ability
Impaired (DWAI) statute' was not substantially similar to
Pennsylvania's statute 9'3731. Discussing the holding of Olmstead,
cur Commonwealth Court stated in Frar.z V. Department of
Transportation No. 3545 C.D. 1997, (Pa.Cmwlth. 1998):
In Olmstead, the Commonwealth court reversed the trial
court's decision to uphold the imposition of a licensee's
one-vear license suspension, since we concluded that
violations of New York's DWAI statute and Pennsylvania's
8
DUI statute are not substantially similar offenses. We
so concluded because New York's DWAI statute, which
punishes any alcohol-related impairment in driving a
motor vehicle, has no equivalent in the laws of this
Commonwealth.
This Court notes that New Jersey's statute differs from
Pennsylvania's in two respects: The first is that a New Jersey
defendant can be convicted cf driving while intoxicated, even if
not to a decree which renders him or her incapable of safely
dr°vinc a motor vehicle. Second, New Jersey's statute permits a
defendant to be convicted for allowing another person to drive his
or her vehicl=e while intoxicated. The firs: New Jersey provisio_^.
is slmi'ar to New Ycrk's DWAI statute, and the second has no
Dar2llel Je.^-n Svlvanna'_s S3 l31. iti,^.ile Dart N°_w Je:sev'S
statCte is substant_a_ly a_ to 53731 (the _=rt prCVining e
.10% tn"esnCLd), L..a Court Goes not know which section of New
D?.
jersey's _ was ._C1a a V aaCh 2_D.7ellan-t, and w__- ..^.°-re_C_c
_DDhV the ^,cid Of clrsmear, De..ause it as _-Kehv as not that tae
not
appellants w=_= ..CnviCted .,= viC latiChS "7" 4 arE
"sl bstantially S-milarll to Pennsylvania's DUI StatCtE.
?inally, Article !I! of the Compact regl.'i_es that that state
reporting the violation "describe the violation specifying the
section ox the statute. code or ordinance violate'.:". while PannDOC'
sDecified the correct section 'of the statute, New Jersey's D'J-
Statute §34:4-50(a) describes several different situations, which
are not all equivalent to Per_nsvlvania's statute. ?or the reasons
stated above, This Court finds that the offenses for which
i
Appallants were convicted were not "substantially similar" to
0
Pennsylvania's DUI statute, as required by the compact.
For all of the reasons stated in the above opinion,
Appellants' appeals from the suspension of their driver's licenses
are hereby GRANTED.
BY TAE COURT:
EPH F. BATTLE, J.
10
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J. MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
71R ARCH STREET. SUITE 402 S
PHILADELPHIA, PA 19106
(215)925.1105
FAX (215) 9254099
•1 MICHAEL FARRELL E-MAIL: 1MFARRELL(a EARTHLINK.NET
231 SOUTH BROAD STREET
WOODBURY, NJ 08096
(856)848.5801
FAX (856) 848.0322
May 1, 2000
Prothonotary's Office
Court of Common Pleas
Cumberland County Courthouse
1 Courthouse Square
Carliske, PA 17013
Re: Susan L. Meese v. Commonwealth of Pennsylvania
C.P. No. 99-5259
Sir/Madam:
•MEMBER OF NEW JERSEY
PENNSYLVANIA
DISTRICT OF COLUMBIA AND
SOUTH CAROLINA BARS
Enclosed herewith please find the original of the Memorandum of Law in Support of
Appellant's Appeal of the Suspension of Her Driver's License with respect to the above referred
to matl.cr. Kindly file the original with the Court.
Thank you for your attention in this matter.
I remain...
Very truly yours,
lCha.d
MICHAEL FARRELI,
.IMI-/:Ils
w/enclosure
••188
J. MICHAEL FARRELL, ESQ.
I.D. NO. 33803
718 ARCH STREET, STE. 402 S
PHILADELPHIA, PA 19106
ATTORNEY FOR PLAINTIFF
SUSAN MEASE,
V.
COMMONWEALTH OF
PENNSYLVANIA
C.P. NO. 99-5259
MEMORANDUM OF LAW
IN SUPPORT OF APPELLANT'S APPEAL OF THE
SUSPENSION OF HER DRIVER'S LICENSE
1. Statement of Facts.
MAY - 4 1000
Petitioner, Susan Mease, is a resident of the Commonwealth of Pennsylvania. At the time of
her arrest in the State of New Jersey for the Offense of Driving Under the Influence, she was a
resident of, and licensed to drive in, the Commonwealth of Pennsylvania. She possesses a
Pennsylvania Driver's License. In the state of New Jersey the plaintiff was convicted of the offense
of Operating under the influence of liquor in violation of NJSA 39:4-50; specifically, she entered
a plea of guilty to the subsection of that statute which makes it a criminal offense to have a blood
alcohol content of.10 or greater at the time of the testing. She received a six month suspension of
her privilege to drive in the State of New Jersey together with other penalties imposed by the New
Jersey Court. The conviction resulted from her plea of guilty with Civil Reservation pursuant to New
Jersey Rule of Criminal Procedure 3:9-2. Her New Jersey suspension has now expired and the
Commonwealth now seeks to suspend her Pennsylvania driver's license for an additional one year
period.
On or about August 2, 1999 the defendant, Department of Transportation sent the plaintiff
a notice of its intention to suspend the plaintiffs driving privileges in the Commonwealth of
Pennsylvania for one (1) year beginning on September 6, 1999. The notice of the suspension
indicated that it was being applied as a result of the plaintiffs conviction in New Jersey "which is
equivalent to a violation of Section 3731 of the Pa. Vehicle code."
Appellant filed the instant appeal of her Pennsylvania imposed suspension in atimely manner
on September 3, 1999. This Memorandum is submitted in support of the appellant's appeal.
11. Argument.
A. Where, as here, the plaintiff entered her guilty plea in New Jersey under an
express New Jersey provision allowing the entry of a guilty plea with "civil reservation" the
use of that conviction as the basis for a suspension of the plaintiffs Pennsylvania driver's
license is impermissible and the suspensions sought by PennDot on that basis must be
vacated.'
The plaintiff herein entered her guilty plea in the State of New Jersey pursuant to a New
Jersey Court Rule, 3:9-2, governing the acceptance of guilty pleas in the Municipal courts of that
state. The rule provides,
"A defendant may plead only guilty or not guilty to an offense. The
court, in its discretion, may refuse to accept a plea of guilty and shall
not accept such plea without first addressing the defendant personally
and determining by inquiry of the defendant and others, in the court's
discretion, that there is a factual basis for the plea and that the plea is
made voluntarily, not as a result of any threats or of any promises or
inducements not disclosed on the record, and with an understanding
of the nature of the charge and the consequences of the plea. When
the defendant is charged with a crime punishable by death, no factual
basis shall be required from the defendant before entry of a plea of
guilty to a capital offense or to a lesser included offense, provided the
court is satisfied from the proofs presented that there is a factual basis
for the plea. For good cause shown the court may, in accepting a
plea of guilty, order that such plea not be evidential in any civil
proceeding. If a plea of guilty is refused, no admission made by the
This precise issue has been decided by the Philadelphia Court of Common Pleas, Halbert,
J. A copy of Judge Halbert's opinion is attached hereto as Exhibit B.
defendant shall be admissible in evidence against the defendant at trial.
If a defendant refuses to plead or stands mute, or if the court refuses
to accept a plea of guilty, a plea of not guilty shall be entered. Before
accepting a plea of guilty, the court shall require the defendant to
complete, insofar as applicable, and sign the appropriate form
prescribed by the Administrative Director of the Courts, which shall
then be filed with the criminal division manager's office."(emphasis
added)
Under New Jersey law, the New Jersey Supreme Court held that proceedings before the New Jersey
Department of Transportation were civil proceedings and, therefore, guilty pleas entered with civil
reservation could not be use against those entering the pleas in any subsequent civil proceeding. In
Pennsylvania, driver's license proceedings are civil and not criminal proceedings. The use ofaguilty
plea with a civil reservation could clearly not be used against theplaintifl'inacivil proceeding. Under
the full faith and credit clause of the United States Constitution, U.S.C.A. Art. 4, Section 1, the use
of this guilty plea entered in New Jersey under civil reservation cannot be used in Pennsylvania.
The issue of the implication ofthe full faith and credit clause ofthe United States Constitution
has been addressed by the New York Court of Appeals in Farmland Dairies v. Barber, 478 N.E. 2d
1314; 489 N.Y.S. 2d 713 (1985). In that case, New York's highest court held that a plea of guilty
in New Jersey with civil reservation could not be used in New York in denying an application for
extension ofa license. The court held specifically that N.J.R. Crim. P. 3:9-2 prohibited the use of the
plea in a New York civil proceeding pursuant to the full faith and credit clause of the United States
Constitution. There is no reason for this court and the courts of this state not to give equal force to
the New Jersey Court rule under which this defendant entered her plea of guilty.
Recently, Judge Joseph F. Battle, in Rocco Accito v. D.O.T., Delaware County Court of
Common Pleas, No. 99-32222, sustained an appeal of a driver's license suspension on the basis that
the appellant's plea, in the State of New Jersey, under civil reservation, provided no basis for the
suspension of a Pennsylvania license. Based on the Pennsylvania Commonwealth Court's decision
in D.O.T. v. Adcock, 520 A.2d 118 (1987), Judge Battle has reached the same conclusion in the
2See attached Exhibit B.
earlier case of Commonwealth v. Troisi, Delaware County Court of Common Pleas, No. 98-5221,
where he also found that the New Jersey civil reservation judgement was entitled to full faith and
credit in the Pennsylvania courts. In addition, Judge Battle, in Triosi, supra, agreed that the civil
reservation provision under which the appellant herein entered her plea of guilty, barred the
imposition of the penalty of suspension in Pennsylvania for the upon under which her New Jersey
conviction of appellant, Triosi, was based. Citing the above cases, Judge Battle held that the civil
reservation provisions of the plea, as provided by New Jersey law, precluded the use, in Pennsylvania,
of the guilty plea in New Jersey, for any purpose, including, but not limited to the imposition of a
Pennsylvania license suspension.
B. Where, as here, there is no evidence that the appellant's conviction in the State of New
Jersey, was for driving a motor vehicle while under the influence of intoxicating liquor "...to
a degree which renders the driver incapable of safe driving," the Compact does not provide
for "suspension, revocation, or limitation" of the appellant's license to drive a motor vehicle.
Article IV of the "Driver's License Compact" provides, in pertinent part,
(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 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 intoxicating
liquor ...to a degree which renders the driver incapable of safely driving
a motor vehicle."
For the reasons that follow, it is the appellant's position that the Compact does not allow for the
suspension, revocation or limitation ofa Pennsylvania driver's license where, as here, the New Jersey
conviction is for having a blood alcohol content of .10 or greater at the time the test was
administered.
The Pennsylvania Statute, 75 Pa.C.S.A. 3731, provides, in pertinent part,
'See attached Exhibit C.
(a) Offense defined.-- A person shall not drive, operate or be in actual
physical control of the movement of a vehicle in any of the following
circumstances:
(l) While under the influence of alcohol to a degree which renders the
person incapable of safe driving.
(4) While the amount of alcohol by weight in the blood of.
(1) an adult is 0.10% or greater.
Thus, the Pennsylvania statute provides for an offense where the Commonwealth proves that the
driver was under the influence of alcohol to the extent that he or she was incapable of safe driving.
Additionally, the statute makes it a crime to have a blood alcohol level of 0.10% at the time of
driving. New Jersey's statute, and the requirements for a conviction thereunder, is dissimilar. New
Jersey's statute, N.J.S.A. 39:4-50, defines the criminal act, in pertinent part, as follows: "A person
who operates a motor vehicle while under the influence of intoxicating liquor ...or operates a motor
vehicle with a blood alcohol concentration of 0.10% or more..." shall be subject to penalties. New
Jersey's statute does not have any requirement that the driver be incapable of safe driving.
Defendant's blood alcohol reading above legal limit established per se offense of driving under
influence of alcohol, even in absence of any additional evidence of intoxication or impaired ability to
drive. State v. Lutz, 309 N.J.Super. 317, 707 A.2d 159 (A.D.1998). Moreover, New Jersey case
law has defined the per se aspect of the statute to make it an offense to have a 0.10% blood alcohol
content at the time of testing. In New Jersey, it is the blood-alcohol level at the time of the
breathalyzer test that constitutes the essential evidence of the offense. State v. Tischio,107 N.J. 504
(1987). The New Jersey per se offense of driving while intoxicated is established by 0.10% reading
from properly operated and properly functioning breath testing machine, despite testimony that
machine had accuracy of plus and minus 0.01%. State v. Lentini, 240 N.J.Super. 330, 573 A.2d 464
(A.D.1990).
While the Pennsylvania offense requires extrapolation of the blood alcohol level to prove that
level at the time of driving, the New Jersey offense has no such requirement and does not require any
evidence of the effect on the driver's ability to safely operate a motor vehicle. In fact, New Jersey
law prohibits the use of extrapolation testimony. Tischio, supra. This major distinction in the two
statutes makes the Compact's suspension provisions inapplicable by their clear terms as Article IV
of the Compact allows suspensions in the home state only where the offense for which the driver is
convicted in another state is one which includes the element of incapability to drive safely.
Although the Commonwealth Court has held in a variety of cases that the New Jersey and
Pennsylvania statutes are "substantially similar," see, eg. Kiebort v. Department of Transportation,
719 A.2d 1139 (Pa. Commw. 1998) and Siebort v Department of Transportation, 715 A.2d 517
(Pa.Commw. 1998), no case has addressed the question of whether the Compact allows for a
suspension of a Pennsylvania Driver where there is no evidence that the section of the New Jersey
Statute under which the driver was convicted contained the essential element that the driver was
incapable of safe driving.' The issue of whether the Compact itself allows for a suspension of a
Pennsylvania driver's licence in the absence of proof in the prosecuting state that the driver was
incapable of operating the motor vehicle safely has not been decided.
The Pennsylvania courts have also taken a different view of the elements of a per se offense
than have the New Jersey Courts. In Pennsylvania, unlike in New Jersey, the Commonwealth must
prove that the defendant's blood alcohol content was 0.10% or greater at the time of the driving. In
Commonwealth v. Barud, 545 Pa. 297 (Pa 1996), the Supreme Court addressed the section of the
Pennsylvania statute which made it a crime where the driver's blood alcohol content, as evidenced
by a test administered within three hours of driving, was 0.10% or greater. The court noted that in
Commonwealth v. Jarman, 529 Pa. 92 (1992) and Commonwealth v. Modafare, 529 Pa. 101 (1992)
it had already been decided that mere evidence that the driver's blood alcohol content at the time of
testing was equal or greater than 0.10%, was insufficient to prove a violation of the statute. The
Barud court, with those decisions in mind, found that section (a)(5) of the statute, making it a crime
where the blood alcohol content at the time of testing within three hours of the driving was 0.10%
'Although Siebert concluded that the issue that appellant raised in the trial court
concerning the lack of the specific element in the New Jersey statute that the defendant was
incapable of safe driving, decided against him in the lower court, was properly decided, the court
did not address the effect which other Pennsylvania cases have had on the per se offense and the
"time of driving" v. "time of testing" distinction. Moreover, it is unclear from the case whether
the court considered the specific language of Article IV of the Compact in reaching its decision.
While the statutes may be substantially similar, the punished conduct in New Jersey, does not fit
the requirement of the Compact that the driver be under the influence to an extent which rendered `:
him or her incapable of safe driving.
or greater, was unconstitutional as void for vagueness and overbreadth. The court held that "without
requiring any proof that the person actually exceeded the legal limit of .10% at the time of driving,
the statute sweeps unnecessarily broadly into activity which has not been declared unlawful in this
Commonwealth..." The court found that the statute's "most glaring deficiency..." was that it
"completely fails to require any proof that the accused's blood alcohol level actually exceeded the
legal limit at thetimeofdriving." The court found it intolerable that the statute criminalized conduct
"...without any regard for the level of intoxication at the time of operation."
The importance of this holding to the issue presented herein cannot be overstated. The New
Jersey courts have reached decisions in sharp contrast to the Pennsylvania courts on this issue. New
Jersey allows convictions without regard to the actual blood alcohol content at the time of the
driving, and, therefore, without regard to the level of intoxication at the time of the driving. In New
Jersey, the blood-alcohol level at the time a breathalyzer testis administered, conclusively establishes
a violation ofN.J.S.A. 39:4-50a. State v. Tischio, supra, 107 N.J. at 522,527 A.2d 388. New Jersey
Courts must take judicial notice that breathalyzer tests are accurate and that a reading of .10
establishes a per se violation of N.J.S.A. 39:4-50a. State v. Downie, 117 N.J. 450, 466-488, 569
A.2d 242, cert. denied, --- U.S. ----, 111 S.Ct. 63, 112 L.Ed.2d 38 (1990). In New Jersey, unlike
in this Commonwealth, it is impermissible to extrapolate to show what the driver's BAC was at the
time of operation, if the BAC test result was equal to or greater than 0.10%. The Supreme Court of
New Jersey reached its ruling for "overriding considerations of public policy," Tischio, 107 N.J. at
509, 527 A.2d 388, and was not persuaded by the argument that defendant Tischio may have had a
BAC of less than 0.10% at the time of operation. The New Jersey Court "ruled that it is the
blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the
offense ... and that extrapolation evidence is not probative of this statutory offense and hence is not
admissible." > Tischio, 107 N.J. at 506, 527 A.2d 388. A New Jersey defendant whose
blood-alcohol level measures 0.10%or more when the test is administered is convictable without any
showing that he or she was driving unsafely. State v. DeLuca, 208 N.J.Super. 422, 506 A.2d 55
(App.Div.1986), rev'd on other grounds, 108 N.J. 98, 527 A.2d 1355, cert. den. 484 U.S. 944, 108
S.Ct. 331, 98 L.Ed.2d 358.
The Pennsylvania Supreme Court has recently decided the case of Petrovick v. D.O.T., No.
173 MD 1998, December 13, 1999. In that case the court considered the effect of a Maryland
conviction upon a Pennsylvania citizen's driver's licence privileges pursuant to the Driver License
Compact. The court noted that a decision on the issue presented did not turn on whether the statutes
ofanother state and the Commonwealth of Pennsylvania are "substantially similar," but depended on
whether `...each state's drunk driving provisions are `of substantially similar nature' to Article
IV(a)(2) of the Compact." The court further noted that the Compact takes effect when another state
reports to a party state that a driver was convicted "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 those circumstances, PennDot must give the same effect to the out-of-state conviction
that the licensee would receive if the conviction had occurred within Pennsylvania. Importantly, New
Jersey's statute, relating to blood alcohol content, does not require any degree of impairment.
Moreover, the statute does not even require that the statutory blood alcohol percentage, as
determined by a test administered after arrest, be related to the time of driving. Like the Maryland
statute at issue in Petrovick, supra, the New Jersey statute"...prohibits any amount of impairment,
rather than impairment to a degree of being rendered incapable of safely driving.
Where, as here, the appellant's conviction in New Jersey did not depend upon proof that he
was unable to drive her vehicle safely, the Compact does not permit suspension of her Pennsylvania
license. There is no evidence that the appellant was incapable of safe driving and there is no evidence
of her blood alcohol content at the time of driving as opposed to the time of testing. Under these
circumstances it cannot be presumed, based on a test result of .10% or greater, that the appellant's
blood alcohol content at the time of her driving was at a level which rendered her operation of the
vehicle unsafe. In this case, the defendant's New Jersey conviction was a per se conviction. Her test
results were .12% at the time of the testing with no evidence either admitted or permitted in the New
Jersey prosecution which would have shown her blood alcohol level at the time of operation of the
vehicle. Therefore, the New Jersey conviction is not of the type described in Article IV which would
permit a suspension of the appellant's driver's license.
C. The imposition of a one (1) year suspension of the plaintiffs driving privilege by the
defendant loran offense committed in the State of New Jersey, where, as here, the plaintiff had
previously been sentenced for the same conduct under the New Jersey statute and where, as
here, that sentence included a six (6) month suspension of the plaintiffs privilege to drive in
that state, constitutes separate and duplicative punishment and would, therefore, violate the
double jeopardy clauses of the United States and Pennsylvania Constitutions.
The plaintiff pleaded guilty to the New Jersey offense of driving with a blood alcohol level
of .10 or greater at the time of the testing. She was sentenced for that offense, receiving, as part of
that sentence, a suspension of her privilege to drive an automobile on the highways of New Jersey
for a period of six months. Without any additional or separate wrongful conduct occurring within
the Commonwealth of Pennsylvania and without having been subject to any proceeding in the
Commonwealth of Pennsylvania, the plaintiff stands to have her license suspended a second time by
the defendant, Commonwealth of Pennsylvania Department of Transportation solely as punishment
for her conviction in New Jersey. Not only is the proposed suspension in the Commonwealth
additional to that previously imposed in the Stated of New Jersey, but the Pennsylvania suspension,
one year in length, began, not on the date of the conviction, but some four months later and would i
continue long after the suspension in the State of New Jersey will terminate.
It is plaintiff's position that this additional sentence of suspension, imposed as a punishment,
in Pennsylvania, for the conduct which had occurred in the State ofNew Jersey and for which plaintiff
had already been punished, violates her rights under the United States and Pennsylvania Constitutions
not to be twice placed in jeopardy for the same offense. The second suspension is clearly punishment
and is clearly for the same conduct for which the plaintiff had previously received a suspension of six
months among other retributive sanctions by the State ofNew Jersey. It is also clear that the plaintiff
had not committed any offense in the Commonwealth of Pennsylvania.
The Fifth Amendment to the United States Constitution provides, in part, "...nor shall any
person be subject for the same offence to be twice put in jeopardy of life or limb." The double
jeopardy clause prohibits multiple prosecutions for the same offense and multiple punishments for the
same offense. United States v. Halper, 490 U.S. 435 (1989). The protections of double jeopardy,
contrary to the literal meaning of the clause, are not limited to the protections of life and limb. The
clause applies to the stated through the operation of the Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 784 (1969).
In Department of Revenue v. Kurth Ranch, 104 S.Ct. 1937 (1994) the United States Supreme
Court held that the protections of the double jeopardy clause are applicable to sanctions that are
denominated as "civil." The legislature's description ofa penalty as civil does not remove it from the
definition of punishment within that term's Fifth Amendment meaning. Halner, supra.
The license suspensions imposed pursuant to Section 1532 and 1542 are punitive sanctions
subject to doublejeopardy analysis. Section 1532 provides for revocations and suspensions triggered
by the defendant Department's receipt of a "certified copy of the driver's conviction." The purpose
behind the provision is to punish and deter violations of the traffic safety and motor vehicle laws of
this commonwealth. See, Appeal of Deems, 39 Pa. Cmwth. 138, 395 A.2d 616 (1978).
In United States v. Halner, the Supreme court visited the question of whether and under what
circumstances a civil penalty may constitute "punishment" for the purpose of double jeopardy
analysis. The court indicated that the focus must be on the legislative purpose. The sanction of
suspension or revocation, intended to be imposed herein, is predicated on a criminal conviction and
serves as a deterrent and punitive purposes. In Halner, the Supreme Court stated,
"a defendant who has already been punished in a criminal prosecution
may not be subjected to an additional civil sanction to the extent that
the second sanction may not fairly be characterized as remedial, but
only as a deterrent or retribution."
Doublejeopardy protections are, additionally, a subject of Pennsylvaniajurisprudence. Article
I, Section 10 of the Pennsylvania Constitution provides, in pertinent part, that "...no person shall, for
the same offense, be twice put in jeopardy of life or limb." Historically the Pennsylvania Supreme
Court has given greater double jeopardy protections to individuals charged in Pennsylvania pursuant
to the Court's supervisory powers than the Federal constitutional protections afforded under the Fifth
Amendment. In Commonwealth v. Campan a, 314 A. 2d 854 (Pa. 1974) the Pennsylvania Supreme
Courtheld that all offenses arising from the same conduct or criminal episode must be tried in a single
criminal prosecution. In Commonwealth v. Mills, 286 A.2d 638 (Pa. 1971) the court held that
prosecution in Pennsylvania is generally barred for conduct for which the defendant had previously
been prosecuted and convicted in another jurisdiction. Neither of these double jeopardy type
protections are available under the Fifth Amendment. In Commonwealth v. Smith, 615 A.2d 321
(Pa. 1992) the Pennsylvania Supreme Court held that the Pennsylvania Constitution provides greater
10
and more expansive doublejeopardyProtections than does its federal counterpart. TheSmithholding
is important because it signals the beginning ofa new, independent approach to analyzing protections
under Pennsylvania's double jeopardy clause. See, Sosnov, Leonard, Criminal Procedure Rights
Under the Pennsylvania Constitution, 1993.
The double jeopardy analysis of license suspensions is not without precedent. Courts in the
State of Florida and Ohio have applied double jeopardy analysis to the issue of license suspensions
as punishment for criminal activity. The court in Ohio, State v Gustasfson, No. 93-TR 5344
(Mahoning County, Ohio, November 16, 1994) dismissed a prosecution for Driving Under the
Influence where an administrative license suspension had been previously imposed. The court in State
v. Reilly, No. 96-6661MMIO (Broward County, Florida, December 22, 1994) held the same.
The double jeopardy implications in this case are clear. The license suspension system
operates as a punitive response to the receipt of certain convictions in separate proceedings arising
out of the same conduct. Where, as here, the plaintiff was prosecuted for her conduct in the State
of New Jersey, was punished for that conduct in the State ofNew Jersey which punishment included
a license suspension of six months, and committed no act in Pennsylvania for which he could be
prosecuted, anyadditional suspension ofherdriving privileges in the Commonwealth ofPennsylvania
constitutes a violation ofthe plaintiff's doublej eopardy protections afforded by the United States and
Pennsylvania Constitutions.
Unlike the federal decisions in the area of doublejeopardy, the decisions of the courts of the
Commonwealth of Pennsylvania focus on the rights of the individual. In Mills, supra, 641, the
Pennsylvania Supreme Court, speaking of the doublejeopardy clause and other protections afforded
through the operation of the Bill of Rights, indicated,
"The striking feature of the aforementioned rules and policies is that
the focus is always on the individual, on a person's basic and
fundamental rights. This feature is the common thread that runs
across all of the provisions of the Bill of Rights, and we believe this is
the element the Supreme Court failed to adequately consider..."
The fact that the Pennsylvania Court has focused on the effect of the government action on the
individual and not, as the United States Supreme Court, on the interest of the government, is made
even more clear in Mills. The court's opinion in Mills indicates that
"It appears to us that the only penological justification for permitting
a second prosecution and punishment for the same offense even where
different sovereigns are involved is out and out punishment, and we
certainly hope that at this late date in history of the development of
the penal system of this Commonwealth and the Nation, that
incarceration fora criminal act stands on stronger footing than an eye
for an eye."
Mills, supra, 641.
Where, as here, the imposition of a second punishment ofa one year suspension, consecutive
or in addition to the suspension imposed by the New Jersey Department of Transportation, is not
purely remedial, the suspension by FennDot, violates the double jeopardy clauses of the United States
and Pennsylvania constitutions. In PennDot v. McCafferty, et.al., 34 Phila.462 (1997)5, Judge Jenkins
found that although mindful of the "remedial aspect of a license suspension," the constitutional
dictates of Hal= "require the second and subsequent purported civil sanction be solely remedial in
nature and have no punitive aspect." The court stated,
"The DOT suspensions constitute second punishment in a second
proceeding and are clearly based on the same conduct which gave rise
to initial punishment, which was imposed as a result ofthe New Jersey
DUI convictions. This second punishment... is prohibited by the
double jeopardy clauses of both the federal and state constitutions."
Judge Jenkins distinguished the holding of the Commonwealth Court in Bickert v. PennDOT, 688
A.2d 792 (1997) which had held that license suspensions on top of other criminal penalties did not
violate double jeopardy protections. The case is distinguishable, however, because in Bickert, the
driver was not suspended as a result of the interstate compact; DOT dis not impose an additional
suspension on top of a suspension imposed by another state; and Bickert had the right to a criminal
trial in Pennsylvania. By contrast, the plaintiff herein was suspended twice, once in New Jersey and
once in Pennsylvania the suspension was not concurrent and would, in effect, result in a suspension
in excess of one year. The second suspension lost the cloak of remediality and became purely
'A copy of this opinion is attached hereto as Exhibit D.
12
punitive.
Therefore the imposition, by the defendant, of the severe license sanction of suspension
following the criminal penalty and similar, though less lengthy, license sanction in the State ofNew
Jersey following the plaintiff's conviction in that state constitutes a second punishment prohibited by
the double jeopardy clause of the United States Constitution and Article 1, Section 10, of the
Pennsylvania Constitution.
D. The imposition of a one (1) year suspension of the plaintiffs driving privilege by the
defendant for an offense committed in the State of New Jersey violates the defendants right
to due process under the Pennsylvania and United States Constitutions, where, under New
Jersey law, one charged under the New Jersey statute is not entitled to a jury trial or the right
to assert certain defenses, and where, as here, a defendant charged with the similar offense of
driving while intoxicated in the Commonwealth of Pennsylvania would be entitled to a trial
by jury and would have the right to assert defenses not available to one charged in New Jersey.
The Pennsylvania Constitution, Article 1, Section 6, provides that "Trial by jury shall be as
heretofore, and the right shall remain inviolate. The General Assembly may provide, however, by
law, that a verdict may be rendered by not less than five-sixths of the jury in a civil case." The
constitutional right to a jury trial is repeated in Article 1, Section 9, of the Pennsylvania Constitution
which reads,
"In all criminal prosecutions the accused hath a right to be heard by
himself and counsel, to demand the nature and cause of the accusation
against him, to meet the witnesses face to face, to have compulsory
process for obtaining witnesses in her favor, and, in prosecutions by
indictment or information, a speedy public trial by an impartialjury of
the vicinage; he cannot be compelled to give evidence against himself,
nor can he be deprived of her life, liberty, or property, unless by the
judgment of her peers or the law of the land. The use of a suppressed
voluntary admission or voluntary confession to impeach the credibility
ofa person may be permitted and shall not be construed as compelling
a person to give evidence against himself."
The Pennsylvania right to ajury trial in all criminal cases is further codified in 42 Pa.C.S.A. 5104,
which provides,
13
(A) General Rule.-- Except where the right to jury is enlarged by
statute, trial by jury shall be as heretofore, and the right thereof shall
remain inviolate. Trial by jury may be waived in the manner
prescribed by the general rules."
Therefore, it is abundantly clear that the right to a jury trial is guaranteed to those charged with
criminal offenses and is deserving ofprotection in this Commonwealth. The right is applicable in this
Commonwealth to all charges involving drinking and driving.
Unlike the Pennsylvania situation where a defendant charged with driving underthe influence
is entitled constitutionally and statutorily to a trial by jury, a defendant charged in the State of New
Jersey, under the New Jersey Statute, is not entitled to a trial by jury. All trials on this charge are held
before a Municipal Courtjudge sitting without a jury, This difference creates an important distinction
between the New Jersey and Pennsylvania prosecutions for the offense both statutorily and
constitutionally.
Before any person charged with this offense in Pennsylvania could receive a conviction and
suspension of her or her driving privileges, he or she would be entitled to a trial by jury. If the
individual chose to waive her or her right to jury trial, that waiver would be required to be made on
the record and would be required to be knowing, intelligent, and voluntary.
Having firmly embodied the right to trial by jury for this and other criminal offenses into the
Constitution and Statutes of the Commonwealth of Pennsylvania, the citizenry and legislature ofthis
Commonwealth have firmly mandated that the protection of trial by jury stand between the accused
and those sanctions. In contrast, the citizens of New Jersey and its legislature have not made the
decision to provide the right in charges of driving under the influence. In Pennsylvania, neither the
Commonwealth, its counties, nor its municipalities may punish an individual charged with aviolation
of the criminal laws, including those relating to driving while intoxicated without firs affording the
charged person with the opportunity for a jury trial Ajury trial is a fundamental right provided by the
Pennsylvania Constitution and statute, applicable to charges of driving under the influence. The
attachment of this right in Pennsylvania creates a substantial dissimilarity between the Pennsylvania
and New Jersey Statutes making application of the suspension provisions for out of state convictions
14
inapplicable.
To the extent that 75 Pa.C.S.A. 6146 allows the defendant to suspend the driver's license of
an individual convicted in another state of an offense "essentially similar" to Section 3731 (relating
to driving while intoxicated) as enumerated in Section 1532 (relating to revocation or suspension of
operating privileges) it my constitutionally do so only in those situations where the conviction occurs
in a state which provides the individual charged with the same constitutional and statutory protections
as are guaranteed to those charged in this Commonwealth. To allow the statute to be interpreted
otherwise would in effect deny the individual whose license is suspended here in Pennsylvania a
fundamental. Constitutional right and a statutorily guaranteed right without due process of law.
Although it is generally within the power of the Commonwealth to regulate the procedures under
which its laws are carried out, the chosen procedure may not "offend some principle of justice so
rooted in the traditions and conscience or our people as to be ranked as fundamental." Medina v.
Califomia,112 S.Ct. 2572 (1992). Pennsylvania courts have held that the denial of the right to a jury
trial is a denial of a fundamental right and therefore violates the due process rights of the individual.
In Ineebrethsen v. Ineebrethsen, 661 A.2d 403 (Pa.Super. 1995) the court indicated,
"Here, appellant was subject to criminal contempt as she did not have
the opportunity to purge herself of the contempt finding.
Consequently, she was entitled to the essential procedural safeguards
that attend criminal proceedings generally. Crozer-Chester Medical
Center v. Moran, 522 Pa. 124, 132; 560 A.2d 133, 137 (1989) See
also, Commonwealth v. Brown, 424 Pa. Super. 101, 111; 537 A.2d
840 (1993); Fatemi v. Fatemi, 371 Pa. Super. 101,111; 537 A.2d 840
(1988). These protections include the right to bail, the right to be
notified accusations against him or her and reasonable time to prepare
a defense, the assistance of counsel, and the right, upon demand, to a
jury trial. Schnabel, 338 Pa. Super. at 387; 487 A.2d at 1333."
The plaintiff in this matter was not entitled, underNew Jersey law, to a jurytrial for an offense which,
under Pennsylvania law would have included that associated and guaranteed right. The suspension
of the plaintiffs driving privileges without the benefit of a jury trial or the ability to knowingly,
voluntarily and intelligently waive that right denied the plaintiff due process of law.
The plaintiffs equal protection rights would also be violated by the suspension ofher license.
15
Those whose licenses are suspended for driving while intoxicated in the Commonwealth of
Pennsylvania would have, as noted above, been entitled to a jury trial as of right. In addition,
Pennsylvania law provides the defendant charged in this Commonwealth with the right to present a
defense that her blood alcohol level increased after her driving and that at the time of her driving her
blood alcohol level would have been below the presumptive level of .10. Further, a defendant
charged in Pennsylvania has the opportunity, for a first offense, to enter into an ARD program which
would result in a lesser sanction than if he were tried and convicted. There is no such program
available for those charged in New Jersey. The disparate treatment of those who are licensed by the
Commonwealth of Pennsylvania based solely on the location of their conduct for which they are
charged, tried and convicted, or to which they enter pleas of guilty, serves no legitimate state interest
and, therefore, violates the constitutional guarantee of equal protection of the laws. Both the United
States and Pennsylvania Constitutions protect the individual's right to equal protection of the laws.
In Commonwealth v Kerry Minnich, 662 A.2d 21 (1995) the Superior Court found that "The equal
protection clause mandates that those statutory classifications which do not implicate "fundamental
interests" or "suspect classes" may bear a rational relation to legitimate state interests. The court
further found that the Pennsylvania Supreme Court has held that Article III, Section 32 of the
Pennsylvania Constitution contains the identical mandate. Citing, Baltimore and Ohio Railroad Co.
V. Department of Labor, 461 Pa. 68, 83; 334 A.2d 636, 643 (1975).
In State v. Graff, 121 N.J. 131(1990) the New Jersey Supreme Court specifically found that
First and second driving while intoxicated offenses are not constitutionally serious, thus defendants
do not have the right to a jury trial for those offenses." See also, State v. Hamm, 121 N.J. 109
(1990) and State v. Samare 231 N. J. Supra. 134 (1989) In State v. Nemesh, 228 N.J. Super 597
(1988) the court noted that the New Jersey approach to this issue "differs" from 44 other states which
guarantee the right to a jury trial where a defendant is charged with driving while intoxicated.
Importantly, unlike the Pennsylvania courts, the New Jersey Courts have held that this deprivation
does not violated New Jersey's Constitution.
While the specific wording of the Pennsylvania and New Jersey statutes may be somewhat
similar, they are Constitutionally and procedurally dissimilar. Where, as here, the Constitutions of
the two states, and the case law developed thereunder treat those charged with driving while
16
intoxicated in a clearly dissimilar manner, the statutory similarity loses its importance.
Commonwealth v. Whisnant, 568 A.2d 259 (Pa. Super. 1990) is factually distinguishable from the
instant matter. In that matter the plaintiff was convicted in Pennsylvania of a third offense driving
while intoxicated. That case held merely that the defendant's prior convictions in New Jersey could
be counted as prior offenses in Pennsylvania for purposes of the enhanced penalties imposed by the
Pennsylvania court.
In this case, the plaintiff has been charged and convicted of only one offense. The defendant
seeks to punish him a second time for that very offense. The plaintiff's offense was committed in
New Jersey. While the statutory definitions are similar in New Jersey and Pennsylvania, the
constitutional and procedural rights associated with those offenses are not. In both Whisnant, supra,
and Commonwealth v. Bolden, 532 A. 2d 1172 (1987) the defendant was charged in Pennsylvania,
facing Pennsylvania sanctions, and entitled to the rights afforded a defendant charged in this
Commonwealth. The enhancement of Pennsylvania punishments for an offense committed in this
Commonwealth is not the equivalent of second punishment for an offense committed in another state.
Additionally, the Pennsylvania statute, unlike the New Jersey statute, contains a defense written into
the statutory language. 75 Pa.C.S.A. 3731 provides, in pertinent part, that it shall be a defense to a
prosecution under the section if the defendant shows by a preponderance of the evidence that the
"person consumed alcohol after the last instance in which he drove, operated, or was in physical
control of the vehicle." This defense is not available to an individual charged in New Jersey. The
plaintiff herein, deprived of this defense, is denied equal protection of the laws and substantive due
process.
Since the right to a jury trial is "fundamental" and no legitimate state interest is served by
allowing the suspension of a Pennsylvania resident's Pennsylvania driver's license for an offense
committed outside of this state without the Constitutional and statutory benefits attendant in
prosecutions for that offense in Pennsylvania, the suspension of a Pennsylvania resident's driver's
license fora NewJersey conviction violates the defendant's right to due process and equal protection
of the laws.
E. Where, as here, the plaintiff was not advised at the time of her plea in the State of New
Jersey, that her license would be suspended in the Commonwealth of Pennsylvania and was
17
further not advised that her suspension would be in addition to and in large part consecutive
to her New Jersey suspension, the plea and conviction is constitutionally infirm and may not
serve as the basis for a suspension in the Commonwealth of Pennsylvania.
In the instant case the plaintiff entered, in New Jersey, a plea to the offense of driving under
the influence. At the time of her guilty plea he was advised only of the New Jersey consequences of
entering such a plea. At no time was he advised that her license issued by, or her privilege to drive
in, the Commonwealth of Pennsylvania would be affected in any way. One of the essential elements
of due process is notice. The United States Supreme Court held, in Henderson v Morgan, 426 U.S.
637 (1976) that a guilty plea could not be voluntary in that sense that it constituted an intelligent
admission that the defendant committed the offense unless the defendant received real notice of the
true nature of the charge against him. This right to notice is the "first and most universally
recognized requirement of due process." Smith v. O'Gradey, 312 U.S. 329 (1976). The
Pennsylvania courts have held a guiltyplea to be invalid in several situations involving lack of notice.
See, Commonwealth v. Fay, 439 A.2d 1227 (Pa. Super. 1992) (defendant pleading guiltily entitled
to be advised of maximum punishment); Moore v. Commonwealth, 384 A.2d 1206 (Pa. 1978);
Commonwealth v. Sperry, 577 A.2d 264 (Pa. Super. 1990) (defendant not advised of possible
sentence enhancement); and Commonwealth v. Persinaer, 625 A.2d 1305 (1992) (defendant not
advised of consecutive nature an aggregate term of sentence).
In this case the plaintiff was not advised of the fact that her guilty plea, in New Jersey, would
affect her Pennsylvania driver's license. Nor was he advised of the fact that her suspension in
Pennsylvania would be twice as long as that imposed in New Jersey. The statutory scheme under
which the Pennsylvania Department of Transportation believes it is permitted to suspend the
Pennsylvania driver's license ofa Pennsylvania resident foran offense committed in New Jerseydoes
not provide for or require such notice. Then statutory scheme therefore violates the plaintiff s rights
to substantive due process. The failure to provide notice deprived the defendant of due process and
rendered her guilty plea involuntary.
Plaintiff is further protected from the suspension of her license in this situation by the
application of the United States and Pennsylvania Constitutional proscription against "ex post facto"
legislation. Article 1, Section 9, of the United States Constitution and Article 1, Section of the
18
Pennsylvania Constitution provide this protection. Although the provision is most often applied in
situations involving legislation and is not of its own force applicable to the judicial branch, in
circumstances such as this, where the plaintiff is being punished in a manner separate and distinct from
that which he anticipated and that of which he was provided notice, the provisions of the
Constitutions require that this court protect the plaintiff from unanticipated consequences of her plea
by denying the defendant the right to suspend the plaintiff s license. The principle upon which the
"ex post facto' clauses are based is the notion that persons have a right to a fair warning of that
conduct which will give rise to all penalties that could be imposed. See, Marks v. United States, 430
U.S. 188 (1977).
The suspension ofthe plaintiff's driving privileges herein is precisely the type of consequence
which the Constitutions of the United States and of Pennsylvania were intended to prevent. The
plaintiff chose to plead guilty and did so only upon being provided with notice of the intended
penalties, including the New Jersey suspension of her license, to be imposed pursuant to her plea.
He was provided no notice of any potential Pennsylvania sanctions. If the statute allowing one state
to suspend the license of a driver as a result of a conviction in another state, the statute itself must
contain provisions for notice. In the absence of such a notice requirement the court could have and
should have provided the plaintiff with such notice prior to the acceptance of the plea.
F. Where, as here, the plaintiff, a Pennsylvania resident, would be entitled to enter into
and complete certain alcohol related driving programs and would, as a consequence, be
entitled to maintain her driving privileges if convicted in the Commonwealth of Pennsylvania,
but denied that ability and right due to the fact that her conviction was in the State of New
Jersey, the proposed suspension of the plaintiff s driving privileges in the Commonwealth of
Pennsylvania as a direct consequence of the New Jersey conviction, violates the plaintiffs right
to equal protection of the law.
The plaintiff, had he been arrested and charged with the offense of driving while intoxicated
in the Commonwealth of Pennsylvania, would have been eligible for entry into ARD, and, as a
consequence would have been entitled to a reduced suspension of her license to as little as a one
month suspension. Since he was convicted in New Jersey, however, this advantage was not available
19
to him. As a result the defendant intends to suspend her driving privileges for a full year without
allowing the plaintiff entry into an ARD program where, as here, he is and was otherwise eligible.
Both the United States and Pennsylvania Constitutions protect the individual's right to equal
protection of the laws. In Commonwealth v Minnich, supra, the court found that the equal protection
clause mandates that only those statutory classifications which do not implicate fundamental interests
or suspect classes bear a rational relationship to legitimate state interests. The court further held that
the Pennsylvania Constitution, Article III, Section 32, contains an identical mandate.
Since there is no legitimate basis for denying ARD entry to an individual convicted in another
state while allowing individuals convicted in Cher Commonwealth that entry, the denial violates the
protections afforded by the equal protection clauses of the United States and Pennsylvania
constitutions. The persons are similarly situated and the denial of the right to one while granting the
right to the other results in disparate treatment in the absence of a legitimate state interest. See,
PennDOT v. McCafferty et al, 34 Phila. 462 (1997)6. In that case the court based its decision that
equal protection guarantees were violated where, as here, the plaintiff was not given the opportunity
to enter into an ARD program. The court stated, "Even the discretion of a district attorney to allow
ARD is subject to the requirement that the decision not be wholly, patently unrelated to the protection
of society or likelihood of rehabilitation." Commonwealth v. Morrow, 650 A.2d 907 (1994). The
court found, therefore, that there was no "rational basis for a conclusion that an out-of-state DUI
conviction requires such a harsh punitive civil sanctions as would not be imposed had the offense
occurred in ther Commonwealth. Hence, where such occurs, the equal protection standard has not
been upheld, as well as double jeopardy." The opinion in McCafferty, supra, was issued by Judge
Jenkins of the Philadelphia Court of Common Pleas. The court noted that the sanction of driver's
license suspension is "punitive" in nature and that to the extent that the Pennsylvania Suspension is
greater in length than the New Jersey imposes suspension, the imposition of that more lengthy and
"punitive" suspension "undermines" the Pennsylvania driver's constitutional rights under the
Fourteenth Amendment to the United States Constitution and in the manner Articles III and IV of
the Driver's License Compact, as codified in 75 Pa.C.S.A. Sec. 1581, et. seq., have been applied to
6See Exhibit D.
20
the prejudice of Pennsylvania drivers. 34 Philadelphia County Reporter, at 465.
Judge Jenkins further indicated that there was and is no "rational basis for a conviction that
an out of state DUI conviction requires such harsh punitive civil sanctions as would not be imposed
had the offense occurred in this Commonwealth." For that reason, wrote Judge Jenkins, where that
second harsh penalty is imposed, "the equal protection standard has not been upheld, as well as
double jeopardy. 34 Philadelphia County Reporter, at 475-476.
G. There is no statutory authority for the suspension of a Pennsylvania driver's license for
an offense committed in another state.
In Pennsylvania, the DUI statute, 75 Pa.C.S.A. 3731, does not provide for driver's license
suspensions. Suspensions are imposed pursuant to 75 Pa.C.S.A.1532 (b), which provides as follows:
"The department shall suspend the operating privilege of any driver
for 12 months upon receiving a certified record of the driver's
conviction of section 3731 (relating to driving under the influence of
alcohol or controlled substance)..."
The statute contains no similar or corresponding provision for the suspension of a Pennsylvania
driver's operating privileges for out-of-state convictions even where the out-of-state conviction is for
an offense "substantially similar" the Pennsylvania statute.
The statutory construction act, l Pa.C.S.A. 1901, et.seq., requires that statutory language be
strictly construed by the courts. That section requires that the words contained in statutes be given
their plain meaning. In Kusza v. Maximonis, 363 Pa. 479; 70 A.2d 329 (1950) the Pennsylvania
Supreme Court indicated clearly that missing words or terms in statutes may not be supplied by the
courts of this state. In addition, Pennsylvania law requires that "When the words ofa statute are clear
and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit." 1 Pa.C.S.A. 1921 (b). The Pennsylvania Department of Transportation cannot request that
this court suspend driver's licenses of Pennsylvania drivers for offenses committed in other states
where, as here, the language of the statute clearly and unambiguously fails to provide such authority.
As 75 Pa.C.S.A. 1532 (b) does not mandate a one year suspension of a Pennsylvania driver's
21
license for an offense committed in another state even where that offense is derived from statutory
language which is considered by PennDOT to be the equivalent of the Pennsylvania statute, the
suspension of the plaintiffs license herein must be vacated. This argument was upheld by Judge
Jenkins of the Philadelphia Court of Common Pleas in McCafferty, supra. The court found that the
suspension of a Pennsylvania drivers' license for an offense committed in another state presented a
"procedural due process" problem. The court found that the petitioner had a "liberty interest in not
being subject to arbitrary suspension." Judge Jenkins indicated that "DOT's practice of considering
all New Jersey Section 39:4-50 convictions as the equivalent to section 3731;...may or may not have
been intended by the legislature." Absent legislative guidance, the process was procedurally flawed.
McCafferty, supra 479.
A similar result was reached in Commonwealth v. Troisi, Delaware County Court of Common
Pleas, No. 98-5221, Joseph F. Battle, J.' In that case, Judge Battle held that the Commonwealth of
Pennsylvania lacks the statutory authority to suspend operating privileges under 75 Pa.C.S. 1532.
The court stated that in Pennsylvania, Sec. 3731 does not provide for the suspension of driver's
licenses. Suspensions are imposed only under Sec 1532. That section does not provided for the
suspension of a driver's license for an out of state conviction. Judge Battle held,
"Because 75 Pa.C.S. 1532(b) does not mandate a one year license
suspension for a violation of an offense equivalent to 75 Pa.C.S.A.
3731, the appellants were not properly charged and the suspension
appeals must be sustained."
H. The New Jersey offense of driving under the influence is not the "equivalent" of the
Pennsylvania Statute.
The New Jersey statute, N.J.S.A. 39:4-50 (a) provides, in pertinent part, that "A person who
operates a motor vehicle while under the influence of intoxicating liquor..." is guilty of the offense.
Pennsylvania's statute, 75 Pa.C.S.A. 3731, criminalizes driving after consuming alcohol only if the
'See Exhibit C.
22
person is under the influence "...to a degree which renders the person incapable of safe driving." This
statutory difference is not insignificant when determining whether the statutes are "equivalent." In
determining whether this statutory distinction is an indication that the statute of New Jersey is not
"equivalent" to the Pennsylvania statute, this court is guided by Olmstead v Department of
Transportation, 677 A.2d 1285 (Pa.Cmwlth. 1996) in which the Commonwealth Court found that
New York's statute on driving whi le the driver's ability was "impaired" was not the equivalent of the
Pennsylvania statute.
The Pennsylvania Constitution, Article 1, Section 6, provides that "Trial by jury shall be as
heretofore, and the right shall remain inviolate. The General Assembly may provide, however, by
law, that a verdict may be rendered by not less than five-sixths of the jury in a civil case." The
constitutional right to a jury trial is repeated in Article 1, Section 9, of the Pennsylvania Constitution
which reads,
"In all criminal prosecutions the accused hath a right to be heard by
himself and counsel, to demand the nature and cause of the accusation
against him, to meet the witnesses face to face, to have compulsory
process for obtaining witnesses in her favor, and, in prosecutions by
indictment or information, a speedy public trial by an impartial jury of
the vicinage; he cannot be compelled to give evidence against himself,
nor can he be deprived of her life, liberty, or property, unless by the
judgment of her peers or the law of the land. The use of a suppressed
voluntary admission or voluntary confession to impeach the credibility
ofaperson may be permitted and shall not be construed as compelling
a person to give evidence against himself."
The Pennsylvania right to ajury trial in all criminal cases is further codified in 42 Pa.C.S.A. 5104,
which provides,
(A) General Rule.-- Except where the right to jury is enlarged by
statute, trial by jury shall be as heretofore, and the right thereof shall
remain inviolate. Trial by jury may be waived in the manner
prescribed by the general rules."
In addition, Pennsylvania law provides the defendant charged in this Commonwealth with the right
23
to present a defense that her blood alcohol level increased after her driving and that at the time of her
driving her blood alcohol level would have been below the presumptive level of .10. Further, a
defendant charged in Pennsylvania has the opportunity, for a first offense, to enter into an ARD
program which would result in a lesser sanction than if he were tried and convicted. There is no such
program available for those charged in New Jersey.
In addition, the New Jersey statute itself differs from the Pennsylvania Statute in at least two
respects. The first is that a New Jersey defendant can be convicted of driving while intoxicated even
if not to a degree which renders him or her incapable of safely operating a motor vehicle. Second,
New Jersey's statute permits a defendant to be convicted for allowing another person to drive her
or her vehicle while intoxicated. Only part of New Jersey's statute is "substantially similar" to that
of this Commonwealth; i.e. that portion of Section 3731 which provides for conviction for driving
with a blood alcohol content of .10 or greater. Judge Battle held that "the offenses for which
Appellants were convicted were not substantially similar to Pennsylvania's DUI statute, as required
by the Compact." He therefore granted the appeals of the Pennsylvania drivers.
Moreover, the Pennsylvania Statute which allowed for convictions of persons whose blood
alcohol content was. 10 or more as indicated by testing within three hours of the act of driving' has
been held unconstitutional. Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996). The New Jersey
statute continues to allow a conviction of a person whose blood alcohol at the time of the testing is
greaterthan.10 regardless ofthe time frame of the testing. N.J.S.A. 29:4-50(a) provides, in pertinent
part,
"A person shall not drive, operate or be in actual physical control of
the movement of any vehicle:
(5) if the amount of alcohol by weight in the blood of the person is
0.10% or greater at the time of a chemical test of a sample of the
person's breath, blood, or urine."
In Barud, supra, the court indicated,
'75 Pa.C.S.A. 3731(a)(5).
24
"We conclude that 75 Pa.C.S.A. 3731(a)(5) is void for vagueness and
overbreadth. First, without requiring any proof that the person
actually exceeded the legal limit of.10% at the time of driving, the
statute sweeps unnecessarily broadly into activity which has not been
declared unlawful in this Commonwealth, that is, operating a motor
vehicle with a BAC below. 10%."
As indicated, New Jersey proscribes and makes criminal the driving of a vehicle when a subsequent
test reveals a blood alcohol content of .10% or greater regardless of the blood alcohol content of the
driver at the time of the driving and regardless of whether the consumption of alcohol rendered the
driver incapable of safe driving. Pennsylvania has, unlike, New Jersey, required a showing beyond
a reasonable doubt that the driver's blood alcohol content be .10% or greater at the time of the
driving. Commonwealth v. Jarman, 601 A.2d 1229 (Pa. 1992). In State v. Tischio, 527 A.2d 388
(N.J. Supreme Court, 1987) it was held, contrary to Pennsylvania law,
We now hold that a defendant may be convicted under N.J.S.A. 39:4-
50(a) when a breathalyzer test that is administered within a reasonable
time after the defendant was actually driving his vehicle reveals a
blood-alcohol level of at least 0.10%. We rule that it is the
blood-alcohol level at the time of the breathalyzer test that constitutes
the essential evidence of the offense. Consequently, we hold further
that extrapolation evidence is not probative of this statutory offense
and hence is not admissible.
This contradiction between New Jersey law and Pennsylvania law compels a conclusion that the
statutes are irreconcilable and, therefore, not equivalent.
III. Conclusion.
For all of the above reasons the plaintiffs appeal of the Department of Transportation's
intended suspension of the plaintiffs license must be sustained.
Dated: YIA 6 16ro
Respectfully submitted,
6
Michael Farrel , Esq.
25
lp-? 16,T ?-
TEE COURT OF COMMON PLEAS OF PHXLADELPSIA COUNTY
FIRST JUDICIAL DISTRICT C)TIF' l!TdSYLVANIA
CIVIL TRIAL DIVISION Gpe?,j
JUN 21
rt
George Gordon Pebruary Term, 1999 '
V. No. 2667
I
Pennsylvania Department of
Transportation
• I
Halbert, J. June 16, 1999
O?2Ni0*7
The Pennsylvania Department of Transportation ;"JOT") issued
notice of a one-year suspensicn cf driving priviieC°-S to George
Gordon on 8ebruary 9, icon based upon a guilty plea entered by
for o= z_ ?cozo?
:Gordon in New jersey driving under the _ influence s,
pursuant to N.J. Stat.Arni. Sec. 39:4-50.
Gordon filed a statutory appeal contesting the s.:spension
i
.notice. The matter came to trial before this Court on April '23,
1999. Without taking further evidence, this Court denied
i
Gordon's statutory appeal based upon Gordon's guilty plea in New
:Jersey.
Gordon has appealed this Courc's determination. to the
Commonwealth Court of Pennsylvania.
1 '
c
GeA-16tr k
Throughout the proceedings, George Gordon raised two
i
defenses. First, he contended that because the New Jersey Court
entered a civil reservation at the time he entered his guilty
plea, basing the suspension of his driving privileges upon dhis
was improper.
Gordon, secondly, contended that the notice of conviction'
that New Jersey forwarded to DoT was deficient, lacking
information required under A ticle III of the interstate combact
75 Pa.C.S.A. 6;581.' This _rcvision enables ?ennsylvzniz to'give
recognition to certain cCnvic=ions cccurrira in other states: ; as
though they had occ=rred in Pennsylvania.
On initial review, the Ccur` whi '
?, Cl. was COG...a t of t^_
severity of the offense, rejected Gordon's contentions resultincr
:in the revocation of his driving privileges for one year.
Careful post-trial cOsideration, however, Ye ;ref this
Court to recognize the validity of Gordon's first contention land
give effect to the civil reservation clause found in
'.N.J.R.7:6-2(a) (1) under the Full Faith and credit clause of the
'?etiticner alleges that the report was deficient because it
'failed to describe both the violation that occurred and the plea
that was entered.
2
08-d5-17yy W;'d4r1.1 rnu..
,
United States Constitution (U.S. Const. Art. IV, 51). The case,
i therefore, should be remanded for further evidentiary
proceedings, argues Gordon.
The record reveals that George Gordon entered a guiltyjplea
to driving under the influence of alcohol in New Jersey pursuant
to N.J. Stat..Ann. Sec. 39:4-50(a) on December•7, 1998, forla-n
offense occurring or. October 10, 1998. At the time of the guilty
plea, the New Jersey Court entered a civil reservation pursuant
to N.J.R. 7:6-2(a)(!). Entering a civil reservation prohibi`s
use of the a-uiity plea as evidence in any civil proceeding.'
A civil reservaticn does not provide immunity =rom civil actin:,
whore evidence can be introduced anew. Eag nal o Ls-p a_t Co•, v.
New jersey DOT, 3665 A.2d 932, at 936 (N.J. Sup. Ct., 1975).
The Full! Faith and Credit Clause of the United States
'N.J.R. 7:6-2(a)(1) provides:
A defendant may plead not guilty or guilty, but the court
may, in its discretion, refuse to accept the guilty plea.
The court shall not,however,. accept a gui??y plea without
first addressing the defendant personally and determini:ia by
inquiry of the defendant and, in the court's discretion; of
others, of the nature of the charge and the ccnsequences of
the plea and that there is a factual basis for the plea..
Upon the request of the defendant, the court may, at the
time of the acceptance of the guilty plea, order that the
plea shall not be evidential in any civil proceeding.
3
08-05-1999 03:24PM FROM
Constitution requires Pennsylvania to accept the judicial
proceedings, public acts and records of neighboring states and
give them the same effect as they would have in the foreign.
i
state. U.S. Const., Art. IV, 51. In the course of this
proceeding, none of the parties have cited any Pennsylvania
authority determining the effect that a civil reservation iri New
jersey has on a civil proceeding in Pennsylvania.
This exact issue, however, was considered in New York.; In
?a=lard Da4r4es_ v. aarber, 478 N.E.2d 1314 (N.Y., 1985), the
-etitioner (farmi and Daisies) pied guilty to rice rigging; :the
i
New •JerSeV Court entered a civil -°e serVat:On with the plea. T
Court of Appeals of New York barred -1- +-e of the New jersey
judgment in a New York civil proceeding, rulinc chat such UsE Of
the ml=_a was precluded by tae civil resew aticn . The New York
Court gave full faith and credit to the New jersey rule, statine,
„The full with and credit clause requires us to give Farmland's
!judgment the same effect in New York." 478 N.F,.2d at 1317.
In general, Pennsylvania has given full faith and credit to
.motor vehicle regulations in other states. ae ne,4r-. Of
imrarsoortation Bureau of Dr+v^- T4c,.ns4ng V. Adcoek, 520 A.2d
,(Pa. Cmwlth. 1987) (Pennsylvania court upheld a suspension of
idriving privileges based upon petitioner's conviction unde-
4
Massachusetts statute requiring the suspension of driving
privileges of persons against whom a judgment -has been entered in
j that state) ; ,$.Q.e_al_n, Depart nent of T-argpo+- a ;on n, Aau'of
Traffic Safety v. Felix Granito, 452 A.2d 889 (Pa. Cmwlth. 5982)
(in reinstating. one year license suspension for outstandingi0hio
judgment, the Pennsylvania Commonwealth Court adjudged that;
i
"Full faith a=.^, credit demands that we recognize the judgme za of
our sister states and give them at least the same effect and
validity as they enjoy in the rendering state.")
Under the Full Faith and Credit clause, this Court must give
full faith and credit to N..'. R. 7:6-2(a)(1) and remand t '-is case
=Cr Lurther evldent_ar'? proceedings. While (=_vi_^.g effect tC'tne
Civil reservation statute in New Jersey may hinder tae a==crts oz
the Pennsylvania Department c-Z Transportation, promctes to
entry of pleas to criminal offenses in New uersey w1en such pleas
otherwise may rot have been entered.
Because the resolution of Gordon's civil reservaticn
argument is dispositive of this case, Gordon's seccrd argume:.t
i
;regarding notice need not be addressed.
5
)TICE GIVEN UNDER RULE 236
08-05-1999 es?e5rri rmui
BY THE COURT:
?l
SAI+BERT, J.
yk
6
4
, t_ 3
IN THE COURT OF COMMON PLEAS, DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ROCCO ACITO NO. 99-3222
Petitioner
v.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Respondent
J. Michael Farrell, Esquire, 718 Arch Street, Suite 402S, Philadelphia, PA 19106,
counsel for Petitioner
Marc A. Werlinsky, Esquire, Office of Chief Counsel, Department of Transportation,
Courtside Square, Building 1, 150 Allendale Road, King of Prussia, PA 19406,
counsel for Respondent
ORDER
AND NOW, this 3G day oli'' 1999, upon
consideration of Petitioners Appeal of the Suspension of his Drivers License, and
response thereto, it is hereby ORDERED and DECREED that said appeal is
SUSTAINED.
BY THE COURT:
n
?' seph F Battle, J.
7
i
IN THE COURT OF COMMON PLEAS, DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ROCCO ACITO NO. 99-3222
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Respondent
J. Michael Farrell, Esquire, 718 Arch Street, Suite 402S, Philadelphia, PA 19106, counsel for
Petitioner
Marc A. Werlinsky, Esquire, Office of Chief Counsel, Department of Transportation, Courtside
Square, Building 1, 150 Allendale Road, King of Prussia, PA 19406, counsel for
OPINION
BATTLE, J.
DATE: /,?,724- -5y
Rocco Acito was convicted of driving under the influence of alcohol in the state of New
Jersey. The Pennsylvania Department of Transportation notified Mr. Acito that his driver's
license would be suspended in compliance with 75 Pa.C.S. Secs. 1532(b)(3) and 1581 Article
IV(a)(2) and (c). Mr. Acito has appealed the notice of suspension.
The case of Kiebort vs. Department of Transportation, Bureau of Driver Licensing, 719
A.2d 1139, 1143 (Pa. Cmwlth. 1998) held that the aforesaid statutes do authorize the Department
of Transportation to suspend an individual's driver's license for and out-of-state DUI conviction.
Our Commonwealth Court has also held that the New Jersey DUI statute is substantially similar
to Pennsylvania's, and, therefore, the Department of Transportation has the authority to suspend
an individual's driver's license for a New Jersey DUI conviction. Kiebort, 1d.; Seibert vs.
Department of Transportation, Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998).
J
CIVIL RESERVATION
New Jersey has a rule of court, known as a civil reservation, which, in certain
circumstances, provides that a guilty plea to a DUI offense shall not be used against an
individual in other civil or criminal matters. N.J. R. Crim. P. 3: 9-2. Mr. Acito was granted a civil
reservation by New Jersey for his DUI conviction. The United States Constitution, Article IV,
Section 1, provides that full faith and credit shall be given in each state to the public acts,
records, and judicial proceedings of every other state. In Gallo Asphalt us. Sagner, 71 N.J. 405,
365 A.2d 932 (1976), two businesses pled guilty with civil reservations in a criminal proceeding.
Based on these pleas, the New Jersey Department of Transportation disallowed them from
bidding on Department of Transportation contracts. New Jersey's Supreme Court held that the
Department of Transportation hearing was a civil proceeding and, therefore, the guilty pleas
could not be used against the Defendants. 365 A.2d at 935. In the case at bar, a license
suspension is a civil sanction for a criminal conviction. This would clearly not be allowed in
New Jersey and, under the full faith and credit clause of the United States Constitution, it cannot
be permitted in Pennsylvania.
Our Commonwealth Court explored the application of the full faith and credit clause of
the Constitution to a license suspension proceeding in Department of Transportation, Bureau of
Driver Licensing vs. Adcock, 103 Pa. Cmwlth. 298, 520 A.2d 118 (1987). At issue was a statute
requiring that PennDOT suspend the license of a driver against whom a judgment had been
entered. A judgment was entered against Adcock in Massachusetts and, thereafter, PennDOT
suspended his license. Our Commonwealth Court upheld the suspension, relying on its holding
in Department of Transportation, Bureau of Traffic Safety vs. Granito, 70 Pa. Cmwlth. 123, 452
A.2d 889 (1982) and stating that "full faith and credit demands that we recognize the judgment
2
J.
of our sister states and give them at least the same effect and validity as they enjoy in the
rendering state." The New York Court of Appeals addressed the full faith and credit issue
regarding New Jersey's Rule of Criminal Procedure 3: 9-2 in Farmland Dairies vs. Barber, 478
N.E.2d 1314, 489 N.Y.S.2d 713 (1985). In Farmland Dairies, a company was convicted of price
rigging, to which it pled guilty with a civil reservation in New Jersey. While the conviction
generally would be admissible in New York as evidence in the company's application for a
license extension, the New York Court of Appeals held that N.J. R. Crim. P. 3: 9-2 precluded the
use of the guilty plea in the civil proceeding. We believe that the judgment of New York's
highest court is sufficiently persuasive in this matter. Therefore, the civil reservation will be
given full force and effect by this court. Pennsylvania must recognize New Jersey's civil
reservation granted to Mr. Acito. Because of the civil reservation, the Department's action in
suspending Mr. Acito's driver's license is void ab initio.
BY THE COURT:
J SEPH F. BATTLE, JUDGE "
3
G,41 6IT
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW .
COMMONWEALTH OF PENNSYLVANIA, No: 98-5221
DEPARTMENT OF TRANSPORTATION
Vs.
ARTHUR L. TROISI
Marc A. werlinsky, Esquire for the Department of Transportation.
Courtside Square, Building 1, 150 Allendale Road,
King of Prussia, PA 19406
Vincent P. DiFabio, Escuire for the Appellant
1800 E. Lancaster Ave., Paoli, ?A 19301-1533
O R D E R
A"D .Ow, to w'_., this dzy 1998, it Js hereby
ORDERED and DECREE= that Appellant's drive='s _=cease suspension
at=e-_ _s GRANTED.
BY THE COURT:
SEPH r. BATTLE, 7-
Section 1581 of the Vehicle code requires the Department
to treat certain out of state convictions as thoasulthey
had occurred in. Pennsvlvania. Therefore,
she Department receiving of anloffenserwhichEoccurred on
•
your conviction. on
d_'thev?ng
hich is equivalent to Section 3731 our
which-
Vehicle Code, DRIVING UNDER INFLUENCE, you-
privilege is being SUSPENDED for a period of 1 year, as
mandated by Section 1532E of the Vehicle Code.
The notice sent to David Seidman included the appropriate
statute. Appellants timely appealed
reference to the Florida DUI
o Motor Vehicle
their suspensions pursuant to 75'Pa•C•S' S1
Code)...The cases were consolidated on 11/1 8/97, and a hearing was
held be-'Ore this Court on January 22, 1998.
Backaround _
__ ?t„•Greta-e J- - entered the • $4 n[ 7aCtn) on De..-mjoe- i"V the
Compact _ -'rip=
,- -o the Motor
add-Lion cf i5 ?a....5. -81 ? -
actions ,. -= tae
., it^ose the provisio-s or thz Compact -:
v
-atarV p. mra.^.SDp r-..ation We_ -c elC t- 72
OTI =L'_-e,L Or
Cp„LtCP.WEaitCl • '/= gel d that
ice_ ns`?o , 708 1.2d 481 (Pa. 1958)• our Suprene Ccurt
occur.e.
which ,a
driver's license suspensions based on convictions
Drior to the legislative enactment of the Compact were =nvaid and
_ ail or the cases
that the Secretary had exceeded his authority-
which occurred aster the
row before this Court involve convictions
not apply.
compact fore does
was in effect, and Sullivan there
lacks szatLto-y
This Court finds that: 1) Pennsylvania
authority to suspend the appellants' operating pr ?ileces under §75
2
na.C.S. 91532(b)(3); 2) Civil reservations permitted under New
Jersey's Rules of Civil Procedure must be given full faith and
credit in Pennsvlvania; and 3) the applicable portions of the New
Jersey and Florida DUI statutes are not substantially similar to
Pennsylvania's DUI statute. We must therefore sustain the
foregoing appeals.
Sus ension of License for Conviction of Offense Eouivalent to 43731
Pennsvlvania has entered into a Compact with other states in
which the '_npent is ccr persons who have been convicted of driving
under the influence of alcohol in other at_ as to have their
Pannsvlvania dr'l%er's l_Censes S_snended as if the offense had
• - statute. e
CCCUrred under ?En.^.S':i'v 2n_=-S ?iCo-v2Ct has been
-
leCiS 7? p2•C•C §_531 and s=ates as _%llOws:
lat'_"v'e.V en2Ct2d 2t ..
'RTT _J
cozvicticn
(2) The lzcenBu _J in the home state, for the
,pn or lire=at10i of the
7 rpcses of susnenslo , retocc - -
1_ ' rive the same
s_cense to operate a .,...tor :eh-- -, saa__
' I
of-°_Ct to the COnductnretorted, pursuant to .z.rt ;cle __
of this compact, as '_t would __ such conduct had cccurreC
in the home state in the case of convictions rOr:
(2) driving a motor vehicle while under the influence of
intoxicating liquor or a narcotic drug or under the
influence of anv other drug to a degree which renders the
driver incapable of safely driving a motor vehicle;
75 ?a.C.S. 61581.
in Pennsvlvania, the DUI statute, 75
provide for driver's license suspensions.
pursuant.,to 75 Pa.C.S. §1532(b), which or
The department (of transportation)
3
pa.C.S. §3731, does not
suspensions are imposed
Dvides as follows:
shall suspend the
operating privilege of any driver for 12 months upon
receiving a certified record of the driver's conviction
of section 3731 (relating to driving under the influence
of alcohol or controlled substance) . . . .
75 Pa.C.S. §1532(b)(3)•
§1532(b) provides for the suspension of operating privileges
for a conviction of §3731. It does not provide for the suspension
of operating privileges for an out-of-state conviction of an
offense "equivalent to" 53731.
The Statutcrv Construction Act 1 Pa.C.S. 41901 at sec.
tlv construe the language of statutes.
r2CL this Court to Strl.. -
1r25
§1903 recu-es that words and terms in a statute be c_v n the__
in ?AL'S-a !MaT+' "n i S, 363
..1a:R meaning, .^,u_ Supreme Court held
'nnct supply om 'sslon s in
?a. 479, 70 i.2d 329 (1050) that ....u_i..s '-=
_.. - - 'pn ?E: ':SFtVa..:.a .3W -e ?_cru'?_-es that,
a S__L..e. si. aru...-?". .?
„ a statute are clear and _rae 'from all
W iti .2:n . the _ WG.dS
+S t.. be ..jSpeparded ;under `
a7.bi C1i-v, the et o_ - not
its
Pretax,: of vurs,--?=a it Would be an abuse of th_s Cou,rmis authority to g_ve ?='=n]Q^ the
r viOlat10R5 ..- Offen ses
hotter to Suspend gr:var'S licenses for ^
X731, where the language Of the statute Js clear
"eC'1i.valent tOu §-
and free from ambiguity.
Because 75: Pa.C.S. §"1532(b) does not mandate a one year
license suspens'_on for a viollation of an oz'_ense "equivalent to" 5
Pa.C.S. §3731, the appellants were not properly charged and the
suspension anneals must be sustained.
4
Civil Reservations
Five of the appellants pled guilty to New Jersey DUI charges,
with civil reservations, pursuant to New Jersey Rule of Civil
Procedure 3:9-2, which states as follows: "?or good cause shown
the Court may, in accepting a plea of guilty, order that such plea
not be evidential in anv court proceeding." NJ.R.Crim.P. 3:9-2.
In Gallo Asphalt v. Sagner, 71 NJ 405, 365 A.2d 932 (1975), two
businesses pled guilty with civil reservations in a criminal
proceeding. Based on these oleas, the New Jersey Department of
Trarsoortation disallowed them from bidding on Department of
__ans::d_..a_-on contracts. New Jersev's Supreme Court held that the
Department .. ''ra?sPorzazion h=a= was a c_C-_ 'gceeC"ng and
used against -'e
0== t^O Cl•__?y =..as could not be ?••
defendants. 365 A.2d a= 935. In the Casa at 'Da:, a license
suspensIc- _s a civil sanczic. _or a _..a_ ^:Vii-Mien. This
would not be a:.low_d i. New J=_rs=_v and, sce: the
=_d rates Cons-tut-on, U.S.C.A.
fa-t?' and Credit clause of the ..77 ....
Co^.st. Art. 4 Sec. 1. cannot be permitted in ?en.^:c lvan_a.
Our Commonwealth Court explored the appl-cation of the :u11
faith and credit clause of the Constitution to a license suspension
^, eau o' D-s ve:
proceeding in DeDa me* of T ansDO a" gz
iicansino v Adcock, 103 Pa.Cmwlth. 298, 520 A.2d 118 (1987). At
issue was a statute requiring that PennDOT susp<_nd the license of
z driver against whom a ;udcment has been entered. A Judgment was
entered against Adcock in Massachusetts and thereafter, PennDO=
suspended his license. our Commonwealth Court upheld the
5
m-ansportation.
suspension, relying on its holding in Department of
g? eau of '^ a-f'c Safe`v v Gran to, 70 Pa.Cmwlth. 123, 452 A.2d
889 (1982) and stating that "full faith and credit demands that we
ze the judgment of our sister states and give them at least
recognithe same effect and validity as they enjoy in the rendering state."
addressed the full faith and credit
of Appeals
The New York Court o
issue regarding New Jersev's Rule of Criminal procedure 3:9-2 in
Farmland Dairies v. sa*bea, 478 N.E.2d 1314; 489 N.Y.S. 2d 713
19E5). .n __ Farmland D,i^;es, a company was convicted of :rice
(
rigging, to wh;ch -: ?led guilty with a reservation . New
be ad-:issible in ` New
? ze the ...._y wo?
JErS_?'?- R!:_ Ce in _- .;;vic`-ior. genera's apps _
_Cation for a license eitEnS10, -ne
York as e4idEn
I 4- ;;g -ecluded
New Yon): Ccu_- C7 k=peals AE1C that N,'•Fc• 2 ^ red
_ _ 'v'-' -eedinc We . iiece - _
trE -se C= t: °- guil_v p_-c --IE ..ii pr C..
per S::a?_ ••e
N e4i Vo=k'S hi gheS= coL____ to be
4r. ,...is ^ar_.=. :':=ref _e, :hE civil -es=r'at- Vns=ease
-.,, , fprcE gad e.=ect b,.. this co r-, and = driver's
-"-- :rancis Doyle,
susoensio ns a??ea'_s of Susan Salerno, A'_ice 'r'ayon, .
Jr., and wane Congar are therefore granted.
DUy sL C.. u.. _.. --
The Compact does not require that the
Jersey and Florida be identical to Pennsvlvania's DUI statute in
" give the same effect to the conduct
order for Pennsylvania o - the statutes be
reported." The Cpmpact only requires that
n 75 Pa.C.S. §§1581(a) and (c)-
"substantially similar.
6
Pennsylvania's DUI statute, 53731, provides in.pertinent part as
follows:
(a) Offense defined.--A person shall not drive, operate
or be in actual phvsical control of the movement of a
vehicle in any of the following circumstances:
(1) While under the influence of alcohol to a degree
which renders the person incapable of safe driving.
(4) While the amount of alcohol by weight in the blood of
. . . an adult is 0.10% or greater; . . .
75 Pa.C.S. 53731.
New Jersey's DU_T statute defines a DUI offender in pertinent
tart as:
A person who operates a motor vehicle wn=le under the
'rfiuence c'_ intoxicating liquor . . . or operates a
70
motor V2h'_Cle with 2 n100d 21COPC1 CORCentratlO P..Oi
De_cenz or more by weight of alcohol in the defendant's
blood
lcr_da'S DU_ Stat_tc StatES tnat a °rSC•^• -5 CL`1_?V O- ?::-•
(2) .. :erScn -S C._ _.^q .r ac:sa_ phVS:Cai
control a= a Ve.^i.._e wit.._.. s state an...
(b) person .^.as a ?IOOd r hre=th alcohol- _eVel 0= .08
The issue of whether the tlorida and PEnnSy1'v'a-d DU: StatuteS
are "substantially szrilar" has not prey-;O,-sly been addressed by
the PernSVlyania C0LrLS. David Seidman was cony-cted or.vlola,._ng
section (b) of the Florida statute, which requires a .08
:,100d/breath alcohol 'Level, while Pennsvivaria's statute requires
10 level, is less
a .10 level. Penns}'lvzria's statute, by using a
restrictive. This difference prevents this Court from seeing them
as "substantially similar".
ansDortaticn v.
The Commonwealth cites Department of T*'
7
Whisnant, 390 Pa. Super. 192, 568 A.2d 259 (1990) in support of its
claim that the New Jersey and Pennsylvania statutes are
substantially similar. In Whisnant, the defendant was sentenced as
a reheat offender, based on previous DUI convictions in New Jersey.
Whisnant, 568 A.2d at 260. The defendant claimed that the New
Jersev ccnvictions should not be included in his sentencing because
the degrees of the offenses differed. While Whisnant held that the
two were "substantially identical" for the purposes of sentencing,
the court specifically noted that the part of the New Jersev
statute providinc for a conviction for allowinc another persor. to
drive defendant's vehicle while intoxicated was not an issue on
appeal. the case at bar, the evidence _n..roC.-ce= by Pern:)OT
does not spe7_fv t,at the amoellants were Qparating motor vehicles,
or = -at thev .^.ad blood alcohol levels Of or i-r2. le sect_cn
Ct.om -r
_o_
New jerse 's :.:._ statute _ _..._c_ng _or co
another ^erson .... drive w^__e intoxicated ':as - paraiiel in, 53731.
In olmszead .r D-oa-=menz of Trans'orta' ^ea? _ Driver
Licensing, 577 A.2d 1285 'tea. (?..mWlt...1996) , c.ed Ter Ci:r'_afi. (NO.
0006 M.D. Appeal Docket 1997, filed April 23, 1995), our
Commonwealth Court found that New York's Driving While Ability
Impaired (DWAI) statute' was not substantially similar to
Pennsylvania's statute 53731. Discussing the holding of Olmstead,
cur Commonwealth Court stated in anz v E)eoa-tnent of
Transportation No. 3345 C.D. 1997, (Pa.Cmwlth. 1998):
in Olmstead, the Commonwealth 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 DWAI statute and Pennsylvania's
8
DUI statute are not substantially similar offenses. We
so concluded because New York's DWAI statute, which
punishes anv alcohol-related impairment in driving a
motor vehicle, has no equivalent in the laws of this
Commonwealth.
This court notes that New Jersev's statute differs from
Pennsylvania's in two respects: The first is that a New Jersey
defendant can be convicted of driving while intoxicated, even if
not to a decree which renders him or her incapable of safely
driving a motor vehicle. Second, New Jersey's statute permits a
defendant to be convicted for allowing another person to drive his
or her vehicle while 'nzox_cated. The first New Jersey provision
iS similar to New Ycrk's DwAi statute, and .he second has no
parallel _„ mennsvlvania's 53731_. W'^_-'le mar- New jersey's
S=aL'1te S S:ibS..3n=_a_ly to 93731 nth- part rcvi.+i^^ c
.10% mhreshcld), =his Court does not know which section of New
"rsev's Dt._ was :iclated nv each =7pellar.=, 2nd w___ he_e_o_e
J.
2DDl V•t^e c= ol-s___d, because _= as _n-lv as not that the
2 were oavicted viclations whic.. are not
.._e lants ..
1
°s,abstant_ally s_m'lar" to Pennsylvania's DUI statute.
Finaliv, Article IIT_ Of the Compact requires that the state
reporting the violation "describe the violation specifying the
section of the statute, code or ordinance violated". While PennDOT
snecif'_ed the correct section 'Of the statute, New Jersey's DUI
statl'te 534:4-50(a) describes several different situations, which
are not all equivalent to Pennsylvania's statute. For the reasons
stated above, this Court finds that the offenses for which
Appell J* ants were convicted were not "substantially similar" to
0
Pennsylvania's DUI statute, as required by the Compact.
For all of. the reasons stated in the above opinion,
Appellants' appeals from the suspension of their driver's licenses
are hereby GRANTED.
BY T%Z COURT:
`J do2.t-x--"c
WEP.. BATTIE, J.
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PYS510 Cumberland County Prothonotary's Office Page
Civil Case Inquiry
1991) 052519 MEASE SUSh.. 1. (V.9) DEPARTMENT OF TRANSI -RTATION
Itelerenco No..: Fl.l.ed........ 8/27/1999
('n!,r` I'y )(•.....: APPEAL LICENSE SIISI' Time...... . : 2:09
Judynlen1.... ,00 Execution Date 0/00/0000
III dr to Assignerl: Jury Trial....
I)ir;l,nsod W. [)is osed Date. 0/00/0000
(:as(, Commonts - - ---- Higher Crt 1.: 2752 CD2000
Higher Crt 2.:
General Indox Attorney Info
MI!A:;I: SIISAN 1, APPELLANT FARRELL J MICHAEL
I I Ill COCK1,1N S'I'REV.T
MECHAN ICSR(JRG PA 170515
DI-TARTMENT OF TRANSPORATION APPELLEE
COMMONWEA1,14I OF PENNSYLVANIA
INIRVAll OI' DRIVE: LICENSING
IIARRISB RG PA 17123
a1A*k*************+***************************************#**********#********#?
a Ilrl l.(! Ent r lea
PAGE NO
- - - - FIRST ENTRY - - - - - - -
3 - 11 11/27/1999 PET'I'TION TO APPEAL FROM SUSPENSION OF DRIVERS LICENSE
_.---------- - ------ - ---------------------------
1 - 2 '1/(13/1999 RULE TO SHOW CAUSE - DATED 09-02-99 - DEPT OF TRANS IS DIRECTED TO
SHOW CAUSE WHY THE RELIEF REQQUESTED HEREIN SHOULD NOT BE GRANTED -
RULE RETURNABLE 11--5-99 AT CiI5 8:30AM - NO SUSPENSION CANCELLATION
OR REVOCATION SHALL BE IMPOSED UPON SUSAN L MEASE UNTIL FILAL
DETERMINATION OF THIS MATTER - BY THE COURT J GUIDO
------------- ?------------------- ---------------------------
12 2/24/2000 ORDER - DATED 2/14/00 - HEARING ON 4/14/00 AT 8:30 AM
BY EDWARD E GUIDO J COPIES MAILED 2/25/00
- - -------- ----------------------------------------------------ED 4 13 4/20/2000 FOR F:4/28/00 AT 9:00TAM CR25/CUMBERL,AND COUNTY/COURTHOUSEECARLISLED
PA NO FURTHER CONTINUANCE. WILL. BE GRANTED BY EDWARD E GUIDO J
COPIES MAILED 4/20/00
-- ---------------------------------------------------------------
14 - 2311/16/2000 ORDER OF COURT - DATED 11/15/00 - IN RE LICENSE SUSPENSION APPEAL -
FOR THE REASONS SET FORTH IN THE ACCOMPANYING OPINION THE APPEAL OF
SUSAN 1, MEASE IS SUSTAINED AND THE ACTION OF THE DEPARTMENT
SUSPENDING HER OPERATING PRIVILEGES IS REVERSED - BY THE COURT
EDWARD E GUIDO J COPIES MAILED 11/16/00
------------------------------------------------------------------
24 - 2712/07/2000 NOTICE OF APPEAL -- TO COMMONWEALTH COURT OF PENNSYLVANIA -
BY TIMOTHY P WILE
. .------------------- ---- --------------------------------------
28 - 2812/15/2000 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2752 CD 2000
29-A 2/01/2001 ORDER OF COURT - 1/31/01 - APPELLANT IS DIRECTED TO FILE A CONCISE
- --------------------------------------------------------------
STATEMTN OF MATTERS COMPLAINED OF ON APPEAL WITHIN 14 DAYS OF
TODAYS DATE IN ACCORDANCE WITH RULE OF APPELLATE PROCEDUE 1925 B
BY THE COURT KEVIN A HESS J FOR EDWARD E GUIDO MAILED 2/5/01
- - - --- -----------------------------------------------------------
30 - 37 2/(Ill/2001 TRANSCRIPT FILED
- - - - - - LAST ENTRY - - - - - - - - - - -• - - -
* Escrow Information i'
* F(!(!s R Debits Beq Bal Pyymts/Ad' End Bat *'
APPEAL, LAC SUsP 35.00 35.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEME'N'r 5.00 5.00 .00
.J(T FI:F, 5.00 5.00 .00
nl'PI:A[, 30.00 30.00 .00
---------------- ---- - ------
75.50 75.50 .00
#*aa*+**#**#aaa#*##+**##+*++###+*+####*##****+**##+*+***+***+****************ii'1!!j
38 APPELLANT'S AND APPELLEE'S BRIEFS
39 EXHIBITS
??• _ .? ...-+. ..r -JAR."?!'!.
PYS51.0 Cumberland County Prothonotary's Office Page 2
Civil Case Inquiry
051299 MEASE SUSAN L (vs) DEPARTMENT OF TRANSPORT-ATION
16,lerenre No..: Filed........: 8/27/1999
Cane TyFF,e..... : APPEAL, - LICENSE SUSP Time.........: 2:09
luclymenC......: .00 Execution Date 0/00/0000
,lunge Assignod: Jury Trial....
:;pored Dosr..: Disposed Date. 0/00/0000
Case Comments - ----------- Higher Crt 1.: 2752 CD2000
End of Case InformaLion Higher Crt 2.:
"*""****************************************************************************
J. MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
718 ARCH STREET. SUITE 402 S
PHILADELPHIA. PA 19106
(215)925.1105
FAX (215) 925-4099
'1. MICHAEL FARRELL
231 SOUTH BROAD STREET
WOODBURY. NJ 08096
(609) 848-5801
FAX (609) 848-0322
November 2, 1999
The Honorable Edward E. Guido
I Courthouse Square
4th Floor
Carlisle, Pa 17013
Re: Susan Mease v. Department of Transportation
Court of Common Pleas, Cumberland County
Civil Term No. 99-5259
Dear Judge Guido:
Nov 5 - jggq
'MEMBER OP NEW JERSEY
PENNSYLVANIA
DISTRICT oP COLUMBIA AND
SOUTH CARDLINA BARS
The purpose of this letter is to make an advanced request for a continuance in the above-
entitled matter currently scheduled before your Honor on Friday, November 5, 1999, at 8:30 am.
in support of this request, I am currently on trial before the Honorable Matthew D. Carraftello
in the Complex Litigation Center, Wanamaker Building, 12th Floor, Philadelphia, PA in the matter of
Alan B Howe v Consolidated Rail Corporation, CCP, Philadelphia County, October Term 96, Docket
No. 2266 and Shaun Mc Dermott, July Term 97, Docket No. 0762. Trial is expected to last until
November 9, 1999.
I have contacted and spoken with George Kabusk, Esquire and ascertained he has no objection
to the continuance of this matter. A date for the new listing has been agreed upon, which is February
In, ?nnn At In in a IT
Thank you for your cooperation and courtesies.
I remain...
Respectfully submitted,
J. ICHAEL FARRELL
JMF/als
CC. George Kabusk (via fax 717-705-1122)
..gwlse
11/02/1999 13:55 12159254099 J MICHAEL FARRELL ES PAGE 01
1. MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
718 ARCH STREET, SUITE 402 S
PHILADBLPHIA. PA 19106
(215)925.1105
PAX (215) 925.4099
*1. MICHAEL FARRELL
•RISMBER NEW IEIeBY
291 SOUTH BROAD STREET P"]C
DIaTRICr OF NIF COLUMBIA Aft
WOODBURY, N108096 SOUTH CAROLINA BARS
(609) 848-5801
FAX (609) 848-0322
FAX TRANCMITTAi
DATE: November 2, 1999
TO: The Honorable Edward E. Guido
FAX 4: (717) 240-6462
FROM: J. MICHAEL FARRELL, ESQ.
RE: Susan Haase v. Department of Transportation
No. 99-5259
# PAGES, + COVERSHEET: 2
REMARKS:
CONFIDENTIAL iTy NOTICE
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY
TO WHICH: IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS
PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER
APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED
RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE
MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY
DISSEMIN ss
ATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS
STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN
ERROR, PLEASE NOTIFY ME IMMEDIATELY BY TELEPHONE, AND RETURN THE
ORIGINAL MESSAGE TO ME AT THE ABOVE ADDRESS VIA THE U.S. POSTAL
SERVICE. THANK YOU.
11/02/1999 13:55 12159254099 J MICHAEL FARRELL ES PAGE 02
I MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
718 ARCH STREET, SUITE 402 S
PHILADELPHIA, PA 19106
(215) 925-1105
PAX (215) 9254099
•1. MICHAEL FARRELL
•MEMBER OF NEW JE11SSY
231 SOUTH BROAD STREET PENNSYLYMIA
DIETR=M COLUMBIA ANn
WOODBURY, NJ 08096 SOVIH CAROLINA BARS
(609) 848-5801
PAX (609) 848.0322
November 2, 1999
The Honorable Edward F. Guido
1 Courthouse Square
4th Floor
Carlisle, Pa 17013
Re: Susan Mease v. Department of Transportation
Court of Common Pleas, Cumberland County
Civil Term No. 99-5259
Dear Judge Guido:
The purpose of this letter is to make an advanced request for a continuance in the above
entitled matter currently scheduled before your Honor on Friday, November 5, 1999, at 8:30 a.m.
In support of this request, I am currently on trial before the Honorable Matthew D. Carrafiello
in the Complex Litigation Center, Wanamaker Building, 12th Floor, Philadelphia, PA in the matter of
Alan B. Howe v. Consolidated Rail Corporation CCP, Philadelphia County, October Term 96, Docket
No. 2266 and a Mc Dermott July Term 97, Docket No. 0762. Trial is expected to last until
November 9, 1999.
I have contacted and spoken with George Kabusk, Esquire and ascertained he has no objection
to the continuance of this matter. A date for the new listing has been agreed upon, which is February
10, 2000 at 10:30 a.m.
Thank you for your cooperation and courtesies,
I remain...
Respectfully submitted,
// (I'ha4 J"-C
J. CHAEL FARRELL
JNIF/als
CC: George Kabusk (via fax 717-705-1122)
'CO V-186
V. MICHAEL FARRELL
I MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
718 ARCH STREET, SUITE 402 S
PHILADELPHIA, PA 19106
1215)925.1105
FAX (215)925.4099
E-MAIL: JMFARRELL@EARTHLINK.NET
231 SOUTH BROAD STREET
WOODBURY, NJ 08096
(856) 948.5801
FAX(856)848-0322
April 13, 2000
VIA FACSIMILE (717) 240-6462
The Honorable Edward E. Guido
I Courthouse Square
4"' Floor
Carlisl-., PA 17103
Re: Susan Mease v. DOT
CCP, Cumberland County
Civil Term, 99-5259
Dear.ludge Guido:
*MEMBER OF NEW IERSEY
PENNSYLVANIA
DISTRICT OF COLUMBIA AND
SOUTH CAROLINA BARS
Consistent with my secretary's conversation with Sandy of your chambers, the purpose of
this lever is to confirm that the hearing scheduled for Friday, April 14, 2000 is relisted to Friday,
April 28, 2000 at 9:00 a.m.
By copy of this letter, I am confirming with George Kabusk• Esquire• attorney for the
Department of Transportation.
'rhank you for your courtesy in this matter.
I remain...
Very truly yours,
ohav I am-ty
J. ?ICHAEI FARRELL
.IMPaIs
CC: George Kabusk, Esquire (via fax 717-705-1122)
04/13/2000 10:35
'J. MICHAEL FARRELL
12159254099
J MICHAEL FARRELL ES
J. MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
718 ARCH STREET, SUITE 402 S
PHILADELPHIA, PA 19106
(213) 923.1103
PAX (215) 923-0099
231 SOUTH BROAD STREET
WOODBURY. N) 08096
(609) 848-5801
PAX (609) 848.0322
DATE: 41,3I0 0
TO: `rhe Kon o e aw IE. dwQYd F- 6u I'd r
FAX N: Il - ZAjo - ?.q 4' Z
FROM: T. d (hoel r*well,
RE: Susa n YOe0. v v. AD-r7
H PAGES, + COVERSHEET:
REMARKS:
PAGE 01
'MEMEER OR NEW JERSET
PENNSYLVANIA
DISTRICT OF COLUMPIA AND
SOUTH CAROLINA EARS
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY
TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS
PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER
APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED
RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE
MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY
DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS
STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN
ERROR, PLEASE NOTIFY ME IMMEDIATELY BY TELEPHONE, AND RETURN THE
ORIGINAL MESSAGE TO ME AT THE ABOVE ADDRESS VIA THE U.S. POSTAL
SERVICE. THANK YOU.
04/13/2000 10:35 12159254099 J MICHAEL FARRELL ES
I MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
718 ARCH STREET, SUITS 402 S
PHILADELPHIA, PA 19106
(213)925.1105
FAX (215) 925.4099
a. MICHAEL FARRELL E-MAIL: JMFARRELL®EARTHLFNK.NET
231 SOUTH BROAD STREET
WOODBURY, NJ 08096
(856) 848-5801
FAX (836)148.0522
April 13.2000
VIA FACSIMILE (717) 240.6462
The Honorable Edward E. Guido
1 Cnurthouse Square
4"' Floor
Carlisle, PA 17103
Re: Susan Mease v. DOT
CCP, Cumberland County
Civil Term, 99-5259
Dear Judge Guido:
PAGE 02
'MEMBER OF NEW I[RSET
PENNSYLVANIA
DIMILT OF COLUMBIA ANO
SOUTH CAROLINA BARN
Consistent with my secretary's conversation with Sandy of your chambers, the purpose of
this letter is to confirm that the hearing scheduled for Friday, April 14, 2000 is relisted to Friday,
April 28, 2000 at 9:00 a.m.
By copy of this letter, I am confirming with George Kabusk, Esquire, attorney for the
Department of Transportation.
Thank you for your courtesy in this matter.
1 remain...
Very truly yours,
Ile
J. py1CHAE1. FARRELL
WF/als
CC: George Kabusk, Esquire (via fax 717-705-1122)
'GRUB
MAY 4 2000
'1. MICHAEL FARRELL
I MICHAEL FARRELL
ATTORNEY AND COUNSELOR AT LAW
718 ARCH STREET, SUITE 402 S
PHILADELPHIA, PA 19106
(215)925.1105
FAX (215) 9254099
E-MAIL JMFARRELLQa EARTHLINK.NET
231 SOUTH BROAD STREET
WOODBURY, NJ 08096
(856)848.5801
FAX (856) 848-0322
May 1, 2000
'rhe Honorable Edward E. Guido
I Courthouse Square
4"' Floor
Carlisl,. PA 17103
Re: Susan Mease v. DOT
CCP, Cumberland County
Civil Term, 99-5259
Dear.ludge Guido:
'MEMBER OF NEW JERSEY
PENNSYLVANIA
DISTRICT OF COLUMBIA AND
SOUTH CAROLINA BARS
Enclosed please find a courtesy copy of the Memorandum of Law in Support of Appellant's
Appeal of the Suspension of Her Driver's license with respect to the above referred to matter.
Thank you for your attention in this matter.
remain...
Very truly yours.
#/ihad J /MICHAEL FA /a,'?
JMF/als
(w/enclosure)
CC: George Kabusk, Esquire (w/enclosure)
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY I.D. NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
SUSAN L. MEASE, } IN THE COURT OF COMMON PLEAS
Appellee
} OF CUMBERLAND COUNTY, PA
VS.
}
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION, }
BUREAU OF DRIVER LICENSING,
Appellant } NO. 99-5259 CIVIL TERM
Statement of Matters Complained of on Appeal
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
NOW COMES the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, Appellant, that, by and through its attorney, Timothy P. Wile,
Esquire, in compliance with the requirements of Pa. R.A.P. 1925, hereby sets forth the
matters about which it complains with respect to its appeal of this Court's order of
November 15, 2000:
1. The trial court committed reversible error of law when it held that the New Jersey
DUI offense of which Appellee Mease was convicted was not substantially similar to
Article IV(a)(2) of the Driver License Compact, 75 Pa.C.S. §1581, Article IV(a)(2). This
holding directly contradicts a number of holdings to the contrary by the Commonwealth
Court that have held that N.J.S.A. §39:4-50(a) is substantially similar to both 75 Pa.C.S.
§3731(a) and to Article IV(a)(2) of the Driver License Compact. See, e.g., Koterba v.
Department of Transportation. Bureau of Driver Licensing, 736 A.2d 761 (Pa. Cmwlth.
1999), appeal denied, 751 A.2d 195 (Pa. 2000), cert. denied, 531 U.S. _, 121 S. Ct. 53,
148 L.Ed.2d 21 (2000); Scott v. Department of Transportation, Bureau of Driver Licensing,
730 A.2d 539 (Pa. Cmwlth. 1999) (en bane), appeal granted, 2001 Pa. LEXIS 42 (Pa.
2001); Kiebort v. Department of Transportation, Bureau of Driver Licensing, 719 A.2d
1139 (Pa. Cmwlth. 1998), rev'd on other grounds, 2001 Pa. LEXIS 59 (Pa. 2001); Seibert V.
Department of Transportation, Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth.
1998), affg, Seibert v. Department of Transportation, 71 Bucks 198 (Pa. C.P. 1997). The
trial court's decision also conflicts with the decision of the Pennsylvania Superior Court in
Commonwealth v. Whisnant, 568 A.2d 259 (Pa. Super. 1990), which held that N.J.S.A.
§39:4-50(a) is nearly "identical" with 75 Pa.C.S. §3731(a). The Pennsylvania Supreme
Court in Petrovick v. Department of Transportation, Bureau of Driver Licensing, 741 A.2d
1264 (Pa. 1999), held that 75 Pa.C.S. §3731(a) is substantially similar to Article IV(a)(2) of
the Compact. Petrovick, 741 A.2d at 1268.
2. The Bureau reserves the right to argue any additional issues that may be raised by
the common pleas court's opinion filed in support of that court's order of November 15,
2000.
Respectfully submitted,
p?kt
Timothy P. Wile
Assistant Counselln-Charge
Appellate Section
Vehicle & Traffic Law Division
Attorney I.D. No. 30397
Attorney for Appellant
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY I.D. NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
SUSAN L. MEASE,
Appellee
) OF CUMBERLAND COUNTY, PA
) IN THE COURT OF COMMON PLEAS
vs.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
NO. 99-5259 CIVIL TERM
Certificate of Service
I hereby certify that I have on this day and date duly served a true and correct copy of
the foregoing Statement of Matters Complained of on Appeal upon the following persons in
the following manner, which service complies with the requirements of Pa. R.A.P. 121:
First Class Mail; Postage Pre-Paid;
Addressed as Follows:
Judge Edward E. Guido J. Michael Farrell, Esquire
Cumberland County Courthouse Attorney for Appellee Mease
1 Courthouse Square 718 Arch St; Ste. 402 S
Carlisle, PA 17013 /I Philadelphia, PA 19106
W?
TIMOTHY P. WILE
Attorney for Department of Transportation
Date: February 9, 2001
..
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__ ,.I
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY I.D. NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVAN
(717) 787-2830
SUSAN L. MEASE,
VS.
Appellee
COMMONWEALTH OF PENNS'
DEPARTMENT OF TRANSPORT
BUREAU OF DRIVER LICENSD
Appellant
06
0
C16)clC
L/
FEB 15 2001
1URT OF COMMON PLEAS
3ERLAND COUNTY, PA
1-5259 CIVIL TERM
Statement of Matters Complained of on Appeal
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
NOW COMES the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, Appellant, that, by and
Esquire, in compliance with the
matters about which it
November 15, 2000:
1. The trial court
DUI offense of which Appellee
P. Wile,
sets forth the
order of
New Jersey
similar to
4
w
FEB 15 2001 J
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY I.D. NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
SUSAN L. MEASE,
Appellee
vs.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
} IN THE COURT OF COMMON PLEAS
} OF CUMBERLAND COUNTY, PA
} N6. 99-5259 CIVIL TERM
TO THE HONORABLE, THE JUDGES OF THE SAID COURT:
NOW COMES the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, Appellant, that, by and through its attorney, Timothy P. Wile,
Esquire, in compliance with the requirements of Pa. R.A.P. 1925, hereby sets forth the
matters about which it complains with respect to its appeal of this Court's order of
November 15, 2000:
1. The trial court committed reversible error of law when it held that the New Jersey
DUI offense of which Appellee Mease was convicted was not substantially similar to
i
Article IV(a)(2) of the Driver License Compact, 75 Pa.C.S. § 1581, Article IV(a)(2). This
holding directly contradicts a number of holdings to the contrary by the Commonwealth
Court that have held that N.J.S.A. §39:4-50(a) is substantially similar to both 75 Pa.C.S.
§3731(a) and to Article IV(a)(2) of the Driver License Compact. See, e.g„ Koterba v.
Department of Transportation, Bureatt of Driver Licensing, 736 A.2d 761 (Pa. Cmwlth.
1999), appeal denied, 751 A.2d 195 (Pa. 2000), cert. denied, 531 U.S. _, 121 S. Ct. 53,
148 L.Ed.2d 21 (2000); Scott v. Department oj'Transportation, Burette oj'Driver Licensing,
730 A.2d 539 (Pa. Cmwlth. 1999) (en bane), appeal granted, 2001 Pa. LEXIS 42 (Pa.
2001); Kiebort v. Department of Transportation, Bureau of Driver Licensing, 719 A.2d
1139 (Pa. Cmwlth. 1998), rev'd on other grounds, 2001 Pa. L.EXIS 59 (Pa. 2001); Seibert v.
Department of Transportation, Bureau qJ' Driver Licensing, 715 A.2d 517 (Pa. Cmwlth.
1998), a f g, Seibert v. Department of Transportation, 71 Bucks 198 (Pa. C.P. 1997). The
trial court's decision also conflicts with the decision of the Pennsylvania Superior Court in
Commonwealth v. Whisnant, 568 A.2d 259 (Pa. Super, 1990), which held that N.J.S.A.
§39:4-50(a) is nearly "identical" with 75 Pa.C.S, §3731(a). The Pennsylvania Supreme
Court in Petrovick v. Department o/•'1'r•ansportution, Bureau of Driver Licensing, 741 A.2d
1264 (Pa. 1999), held that 75 Pa.C.S. §3731(x) is substantially similar to Article IV(a)(2) of
the Compact. Petrovick, 741 A.2d at 1268.
2. The Bureau reserves the right to argue tiny additional issues that may be raised by
the common pleas court's opinion filed in support of that court's order of November 15,
2000.
Respectfully submitted,
P ?'a
Timothy P. Wile
Assistant Counsel In-Charge
Appellate Section
Vehicle & Traffic Law Division
Attorney I.D. No. 30397
Attorney for Appellant
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL IN-CHARGE
APPELLATE SECTION
ATTORNEY I.D. NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
SUSAN L. MEASE, } IN THE COURT OF COMMON PLEAS
Appellee
} OF CUMBERLAND COUNTY, PA
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION, }
BUREAU OF DRIVER LICENSING,
Appellant } NO. 99-5259 CIVIL TERM
Certificate of Service
I hereby certify that I have on this day and date duly served a true and correct copy of
the foregoing Statement of Matters Complained of on Appeal upon the following persons in
the following manner, which service complies with the requirements of Pa. R.A.P. 121:
First Class Mail; Postage Pre-Paid;
Addressed as Follows:
Judge Edward E. Guido J. Michael Farrell, Esquire
Cumberland County Courthouse Attorney for Appellee Mease
1 Courthouse Square 718 Arch St; Ste. 402 S
Carlisle, PA 17013 Philadelphia, PA 19106
TIMOTHY P. WILE
Attorney for Department of Transportation
Date: February 9, 2001
r
ENOS727A (04/98) ?...,, . _
COMMONWEALTH OF PENNSYLVANIA AUl HORIZ?t ' , `i
DEPARTMENTOFTRANSPORTATION M{lili U AT Acti0lNii fA a
Office of Chief Counsel
Vehicle & Traffic Law Division
1101 S. Front Street, 3rd Floor
Harrisburg, PA 17104-2516
FE6 13'r i r n aQ
r HE1eq
7210e2i6 cE
Judge Edward E. Guido
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan L. Mease
V.
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
No. 2752 C.D. 2000
SUBMITTED: May 4, 2001
1 eict - 'J 5Z1 (? w i??
BEFORE: HONORABLE JAMES GARDNER COLINS, Judge
HONORABLE JAMES R. KELLEY, Judge
HONORABLE SAMUEL L. RODGERS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE RODGERS
FILED: June 15, 2001
The Department of Transportation, Bureau of Driver Licensing
(Department) appeals from the November 15, 2000 order of the Court of Common
Pleas of Cumberland County (trial court) that sustained the statutory appeal of
Susan L Mease (Licensee) from a one year suspension of her operating privilege
imposed by the Department pursuant to the Driver's License Compact (Compact).'
We reverse.
On May 2, 1999, Licensee was charged with violating N.J. Stat.
§39:4-50(a), New Jersey's driving under the influence (DUI) statute, and she pled
1 Section 1581 of the Vehicle Code, 75 Pa. C.S. §1581.
guilty to that offense on July 7, 1999. By notice dated August 2, 1999, the
Department notified Licensee that her license would be suspended for one year as a
result of her conviction in New Jersey, which the Department determined to be for
an offense equivalent to a violation of Section 3731 of the Vehicle Code, 75 Pa.
C.S. §3731.
Licensee filed a timely appeal with the trial court, which held a de
novo hearing on April 28, 2000. The Department admitted into evidence a packet
of documents that included the Department's certified receipt of the electronically
transmitted conviction report from the New Jersey Division of Motor Vehicles.
Licensee offered into evidence a copy of a New Jersey municipal court order
showing that she pleaded guilty to the charge with "civil reservation." Licensee
also stipulated that her blood alcohol content (BAC) was above 0.10% at the time
the breathalyzer test was administered.
The trial court specifically addressed only one of the numerous issues
raised by Licensee on appeal, correctly concluding that the remaining issues had
been addressed and resolved against her by our appellate courts.' Following the
' Licensee's argument that she was not advised of the consequences of her guilty plea and
was otherwise denied due process constitutes an impermissible collateral attack upon the
underlying conviction. Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1176, cert. denied, 513
U.S. 884 (1994). Licensee's equal protection argument was rejected in Department of
Transportation, Bureau of Driver Licensing y. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000).
This court has repeatedly held that the Department is not barred from relying on evidence of a
conviction that results from a guilty plea entered with "civil reservation." See Breen v.
Department of Transportation, Bureau of Driver Licensing, _ A.2d _, (Pa. Cmwlth., No.
1360 C.D. 2000, filed April 12, 2001) and cases cited therein.
With respect to Licensee's assertion that the Department failed to satisfy its burden of
proof, we direct Licensee's attention to Reproduced Record p.15a, describing Plaintiffs Exhibit
No. 1.
2
analysis set forth in Petrovick v. Department of Transportation. Bureau of Driver
Licensing, 559 Pa. 614, 741 A.2d 1264 (1999), the trial court held that the conduct
prohibited by New Jersey's DUI statute is not substantially similar to the conduct
prohibited by Article IV(a)(2) of the Compact and, therefore, a conviction under
New Jersey's DUI statute is not a basis for a reciprocal suspension under the
Compact. Accordingly, the trial court sustained Licensee's appeal and reversed the
suspension of her operating privilege.
On appeal to this Court ,3 the Department argues that the offense
described by New Jersey's DUI statute is substantially similar to the conduct
described in Article IV(a)(2) of the Compact.
In pertinent part, Article IV(a)(2) applies in cases of conviction for
"driving a motor vehicle under the influence of intoxicating liquor ... to a degree
which renders the driver incapable of safely driving a motor vehicle." 75 Pa. C.S.
§1581. A person violates N.J. Stat. §39:04-50(a) when she "operates a motor
vehicle while under the influence of intoxicating liquor ... or operates a motor
vehicle with a blood alcohol concentration of 0.10% or more."
This court has previously held that the provisions of New Jersey's
DUI statute are substantially similar to the provisions of Article IV(a)(2) of the
Compact. Breen; Seibert v Department of Transportation. Bureau of Driver
Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998), appeal denied, 560 Pa. 753, 747
A.2d 373 (1999). Although the New Jersey statute does not use the words
3 Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, an error of law was committed, or the trial court abused its discretion.
Department of Transportation Bureau of Driver Licensing v. Fellmeth, 528 A.2d 1090 (Pa.
Cmwlth. 1987).
3
"incapable of safely driving," such condition is implicitly described by the statute's
terms. Id. The New Jersey statute prohibits a person from operating a vehicle with
a BAC of 0.10%, and there is no question that a person with a BAC of 0.10% is
incapable of safe driving. Id. Contrary to the trial court's interpretation, New
Jersey courts have consistently recognized that a BAC of 0.10% constitutes a level
where virtually every driver would be a danger to the public. State v. Tischio, 107
N.J. 504, 527 A.2d 388 (1987), U peal dismissed, 484 U.S. 1038 (1988);° State v.
Johnson, 42 N.J. 146, 199 A.2d 809 (1964); State v. Morris, 262 N.J. Super. 413,
621 A.2d 74 (1993).
Accordingly, we reverse.
SAMUEL L. RODGE , Senior Judge
Judge Kelley dissents.
4 In Tischio, the court held that test results from a reliable breathalyzer test administered
within a reasonable period of time after the defendant is stopped for drunk driving constitute
sufficient evidence to establish a violation of N.J. Stat. §39:4-50(a), and that prosecution for this
offense neither requires nor allows the introduction of extrapolation evidence.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan L. Mease
V. : No. 2752 C.D. 2000
9 - 1
Commonwealth of Pennsylvania, 5,25
Department of Transportation,
Bureau of Driver Licensing,
Appellant
ORDER
NOW, June 15, 2001 , the order of the Court of Common Pleas of
Cumberland County in the above-captioned matter is reversed.
SAMUEL L. RODGER , Senior Judge
Certified from the Record
JUN 15 2001
and OrderEKk
.,
I
ift
Supreme Court of Pennsylvania
f e ne A Bitzoso Middle District
Deputy Prothonotary
ShirleyBailry August 1, 2002
Chief Clerk
Mr. Curtis R. Long
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
RE: Susan L. Meese, Petitioner
P.O. Box 624
Harrisb0m. PA 17108
717-787.6181
w .a0pe.org
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing, Respondent
Commonwealth Docket Number - 2752 CD 2000
Trial Court/Agency Dkt. Number: 99-5259
No. 581 MAL 2001
Appeal Docket No.:
Date Petition for Allowance of Appeal Filed: July 16, 2001
Disposition: Order Denying Petition for Allowance of Appeal
Date: August 1, 2002
Reargument/Reconsideration Disposition:
Reargument/Reconsideration
Disposition Date:
/esh
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SUSAN L. MEASE, : No. 581 MAL 2001
Petitioner
Petition for Allowance of Appeal from
Order of the Commonwealth Court
V.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
ORDER
PER CURIAM
AND NOW, this 1" day of August, 2002, the Petition for Allowance of Appeal is
hereby DENIED.
TRUE & CORRECT COPY
ATTESE' A"
SH RLE J PHlP
APPEL CLER
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