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Home My WebLink About97-5405 CivilJOHN PATRICK KLINE Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : : · CIVIL ACTION -- LAW : · No. 97-5405 CIVIL TERM IN RE:_OPINI_QNP_URSUANT TO_PA. R.A.P~i 925 OLER, J., August 17, 1998. This license suspension case presents the issue of whether a Pennsylvania licensee's conviction in Virginia for the offense of driving with a blood alcohol content level of .08 percent or greater will result in a suspension of his Pennsylvania operating privilege under the Driver's License Compact. This court concluded that such a suspension was not dictated by the compact. The Department of Transportation has appealed to the Commonwealth Court from the court's order sustaining the licensee's appeal from the suspension. This opinion in support of the court's order is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF_FACTS Petitioner is John Patrick Kline, an adult individual residing at 1804 Brandt Avenue, New Cumberland, Cumberland County, Pennsylvania. Respondent is the Commonwealth of Pennsylvania, Department of Transportation. On July 9, 1997, Petitioner pled guilty in Fairfax County, Virginia, to a charge of "driv[ing] or operat[ing] a motor vehicle while having a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath." The conviction expressly excluded any liability for driving "while under the influence of alcohol[,] or while under the influence of any narcotic drug or any other self-administered intoxicant or combined influence of alcohol and any drug to a degree which impaired the accused's ability to drive or operate a motor vehicle safely.''~ By notice dated September 4, 1997, Respondent suspended Petitioner's operating privilege in Pennsylvania for a period of one year as a result of the Virginia conviction. The notice advised in part as follows: 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 VIRGINIA of your conviction on 07/09/1997 of an offense which occurred on 06/01/1997, 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? Petitioner appealed from the notice of suspension to this court on October 2, 1997. A hearing on the appeal was held on May 28, 1998.3 At the conclusion of the hearing, the following order of court, from which the Department of Transportation has appealed, was entered: AND NOW, this 28th day of May, 1998, upon consideration of the appeal of Petitioner/Appellant from the suspension of his driving privilege by notice dated September 4, 1997, from Respondents/Appellee, and following a hearing, the appeal is sustained, and the suspension is reversed. Petitioner's Exhibit 1. Commonwealth's Exhibit 1. The hearing had been continued at Petitioner's request with the concurrence of Respondent's counsel. See Order of Court, February 12, 1998. 2 DISCUSSION Article IV of the Driver's License Compact,4 which has been enacted by the commonwealths of both Pennsylvania and Virginia, provides as follows: Effect of Conviction (a) The licensing authority in the home state [Pennsylvania in this case], 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 [providing for reporting of convictions] of this compact, as it would give if such conduct had occurred in the home state in the case of convictions for: (1) manslaughter or negligent homicide resulting from the operation of a motor vehicle; (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; (3) any felony in the commission of which a motor vehicle is used; or (4) failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another. (c) If the laws ofa 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 ora substantially similar nature and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and Act of December 10, 1996, P.L. 925, § 4, 75 Pa. C.S. § 1581 (1998 Supp.). 3 effect is given to this article, s The statutory provision in Virginia which proscribes various forms of driving while intoxicated reads as follows: § 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc. -- It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of O. 08 percent or more by weight by volume or O. 08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv). For purposes of this section, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.6 The statutory provision in Pennsylvania which proscribes various forms of driving under the influence reads 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: Sld. (emphasis added). 6 Va. Code Ann. § 18.2-266 (emphasis added); see Petitioner's Exhibit 3. 4 (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving. (2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving. (3) While under the combined influence of alcohol and any controlled substance to degree which renders the person incapable of safe driving. (4) While the amount of alcohol by weight in the blood of: (i) an adult is 0.10% or greater; or (ii) a minor is 0.02% or greater.7 It is been held, for purposes of the compact, that a statute which proscribes driving while one is "under the influence of intoxicating liquor" is substantially similar to Pennsylvania's proscription on driving under the influence of alcohol to a degree rendering one incapable of safe driving. Fisher v. Commonwealth of Pennsylvania, Department of Transportation, 709 A.2d 1008 (Pa. Commw. 1998). On the other hand, it has been held that a statute which proscribes driving while one's ability to drive is "impaired by the consumption of alcohol" is not substantially similar to Pennsylvania's proscription on driving under the influence to a degree rendering one incapable of safe driving. Olmstead v. Commonwealth of Pennsylvania, Department of Transportation, 677 A.2d 1285 (Pa. Commw. 1996), petition for allowance of appeal granted, 546 Pa. 698,687 A.2d 380 (1997). In reaching this conclusion, the Olmstead Court noted that the driver in that case had not been convicted of conduct which would have 7 Act of June 15, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 3731(a) (1998 Supp.) (emphasis added). 5 constituted an offense in Pennsylvania. Id. At 1288 In the present case, Petitioner was not convicted on the basis of conduct which would have constituted the offense of driving under the influence in Pennsylvania. His conviction expressly excluded any premise that his violation consisted of being statutorily "under the influence of alcohol" or even being "under the influence of any narcotic drug or any other self-administered intoxicant or combined influence of alcohol and any drug to a degree which impaired [his] ability to drive or operate a motor vehicle safely." The conviction was predicated solely upon a blood alcohol content level below that proscribed for an adult driver in Pennsylvania. Although the compact subjudice is to be "liberally construed so as to effectuate the purposes thereof,''8 a holding that no substantial difference exists between a statute which makes it a crime to drive with a BAC level of .10 percent and one which prohibits driving with a BAC level twenty percent less than that would disregard the vigorous debate being engaged in by the Pennsylvania legislature over the wisdom of adopting such a lower standard in the Commonwealth and would, in the court's view, be oriented more to result than to fair interpretation. For the foregoing reasons, the court declined to uphold the suspension of Petitioner's operating privilege based upon his Virginia conviction? Robert P. Kline, Esq. 331 Bridge Street P.O. Box 461 New Cumberland, PA 17070-0461 Attorney for Petitioner 8 Act of December 10, 1996, P.L. 925, {} 4, 75 Pa. C.S. {} 1581 (1998 Supp.). 9 By reason of the court's disposition of Petitioner's appeal on the ground discussed, it was not necessary to consider various other grounds raised by Petitioner. 6 George H. Kabusk, Esq. Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent