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HomeMy WebLinkAbout99-5259 civilSUSAN L. MEASE ge DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Commonwealth of Pennsylvania Harrisburg, Pennsylvania 17123 · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA o : ' NO. 99-5259 CIVIL TERM : : : · CIVIL ACTION- LAW IN RE- LICENSE SUSPENSION APPEAL BEFORE GUIDO, J. AND NOW, this ORDER OF COURT 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 C 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 SUSAN L. MEASE ge 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 RE: LICENSE SUSPENSION APPEAL BEFORE GUIDO, J. OPINION AND ORDER OF COURT 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").l 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- SO(a). I 75 Pa. C.S.A. § 1581. NO. 99-5259 CIVIL · 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 1 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. DISCUSSION 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 Dep't. ofTransp.v. McCafferty, 758 A.2d 1155 (Pa. 2000). Bourdeev v. Com. Dep't. of Transp., Bureau 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 NO. 99-5259 CIVIL 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: · · e (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 ofPetrovick v. Com. Dep't. of Transp., Bureau of Driver Licensing, 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. e · · [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 NO. 99-5259 CIVIL 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 mm now to apply this two pronged analysis to the case at bar. Pennsylvania's 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. · o o (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 Petrovick Court specifically held that the provisions of Section 373 l(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 2 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. Dep't. of Transp., Bureau of Driver Licensing, 736 A.2d 761 (Pa. Commw. 1999), Scott v. Com. Dep't. of Transp., Bureau of Driver Licensing, 730 A.2d 539 (Pa. Commw. 1999), and Seibert v. Com. Dep't. of Transp., 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 IV(a)(2) of the Compact. NO. 99-5259 CIVIL 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." Commonwealth v. Robertson, 555 Pa. 72, 80, 722 A.2d 1047, 1051 (1999). The preceding language was quoted by the Court in Ellis v. Com. Dep't. of Transp., Bureau of Driver Licensing, 732 A.2d 1290 (Pa. Commw. 1999) which went on to state: Further, in Commonwealth v. Mikulan, 504 Pa. 244, 250-251,470 A.2d 1339, 1342 (1983) that court detemfined 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 New Jersey Statute 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. Dep't. of Transp., Bureau of Driver Licensing, 750 A.2d 922, 924 (Pa. 3 See also Com. Dep't. of Transp., Bureau of Driver Licensing v. Ester, 756 A.2d 84, (Pa. Commw. 2000). NO. 99-5259 CIVIL Commw. 2000). Therefore, we must mm 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. NO. 99-5259 CIVIL [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 [becomes] 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. Compact Amendment 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 Com., Dep't. of Transp., 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 Commonwealth Court noted that "different blood alcohol levels are clearly different degrees of impairment." Id. at 86. However, Ester 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' ORDER OF COURT AND NOW, this 15TM 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, Is~ Edward E. 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. 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