Tirado v. COM., DEPT. OF TRANSP.

• Decision Date: 15 June 2005
• Citation: 876 A.2d 1082
• Parties: Alexis TIRADO, Jr. v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant.
• Court: Pennsylvania Commonwealth Court

876 A.2d 1082

Alexis TIRADO, Jr. v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 18, 2005.

Decided June 15, 2005.

Terrance M. Edwards, Asst. Counsel and Timothy P. Wile, Asst. Counsel In-Charge, Harrisburg, for appellant.

Paul M. Aaroe, II, Easton, for appellee.

BEFORE: COLINS, President Judge, and PELLEGRINI, Judge, and KELLEY, Senior Judge.

OPINION BY Senior Judge KELLEY.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from an order of the Court of Common Pleas of Monroe County (trial court), which sustained the appeal of Alexis Tirado, Jr. (Licensee) and reversed PennDOT's order suspending his operating privilege. We reverse.

The facts are not in dispute. Licensee is domiciled in Monroe County, Pennsylvania and is a licensed driver in the Commonwealth of Pennsylvania. On January 23, 2004, Licensee was cited in the State of New Jersey for operating a motor vehicle while under the influence of alcohol (DUI). On March 18, 2004, Licensee was convicted of DUI by a court of competent jurisdiction in the State of New Jersey. On March 24, 2004, pursuant to the Driver's License Compact (Compact),¹ the Department of Motor Vehicles of the State of New Jersey transmitted an electronic communication to PennDOT notifying PennDOT of Licensee's conviction. Licensee has no prior convictions for driving under the influence of alcohol in Pennsylvania or any other state.

By official notice mailed May 19, 2004, PennDOT notified Licensee that his operating privilege was being suspended for one year, effective June 23, 2004, as a consequence of the New Jersey conviction.

This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1532B [of] the Pennsylvania Vehicle Code. As a result of your 3/18/2004 conviction in NEW JERSEY:

Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 06/23/2004 at 12:01 a.m.

Your driving record reflects a violation on 01/23/2004 that is similar to violating Section 3731 of the Pennsylvania Vehicle Code, DRIVING UNDER INFLUENCE.

Your conviction in NEW JERSEY is listed in Article IV of Section 1581 of the Pennsylvania Vehicle Code which mandates that PennDOT process specific out-of-state convictions as though they had occurred in Pennsylvania.

Certified Record (C.R.) at 7a.

From this notice, Licensee filed a statutory appeal, pursuant to Section 1550(a) of the Vehicle Code, 75 Pa.C.S. § 1550(a), with the trial court. A hearing before the trial court was held. At the hearing, Licensee argued that the suspension was improper because Section 3804(e)(2)(iii) of the Vehicle Code,² which became effective on February 1, 2004, prior to his conviction on March 18, 2004, states that there shall be no suspension for a first-time violation of Pennsylvania's DUI law.³ PennDOT argued that Section 3804(e)(2)(iii) of the Vehicle Code does not apply because it became effective after Licensee committed the DUI offense on January 23, 2004.⁴ Therefore, the question, as framed by the trial court, was whether the offense date or the conviction date controls PennDOT's imposition of a suspension under the provisions of the Compact, 75 Pa.C.S. § 1581.

Relying on Schrankel v. Department of Transportation, Bureau of Driver Licensing, 562 Pa. 337, 755 A.2d 690 (2000),⁵ the trial court concluded that the conviction date was controlling. The trial court determined that since Licensee's conviction, on March 18, 2004, occurred after Act 24's February 1, 2004 effective date, no suspension is authorized. By order dated October 21, 2004, the trial court reversed the PennDOT's suspension order. This appeal now follows.⁶

In this appeal, PennDOT raises the sole issue of whether the trial court committed reversible error when it refused to apply the savings provisions found in Act 24, and instead ruled that Licensee's conviction date alone controlled whether his operating privilege was subject to suspension under Section 1532(b)(3) of the Vehicle Code, 75 Pa.C.S. § 1532(b)(3).

This issue was the subject of a recent decision of this Court, which decision is deemed to be controlling. In Barnas v. Department of Transportation, Bureau of Driver Licensing, 874 A.2d 169 (Pa. Cmwlth.2005), an en banc panel of this Court determined that the date of conduct controls and that the application of the savings provisions of Act 24⁷ supports PennDOT's suspension of a licensee's operating privilege where, as here, the DUI offense occurred prior to February 1, 2004. To hold otherwise would result in different treatment for licensees who committed the same offense on the same day. Barnas.

Accordingly, the order of the trial court is reversed and the one-year suspension of Licensee's operating privilege is reinstated.

ORDER

AND NOW, this 15th day of June, 2005, the order of the Court of Common Pleas of Monroe County, dated October 21, 2004, at No. 4151 CIVIL 2004, is reversed, and the one-year suspension of Alexis Tirado, Jr.'s operating privilege is reinstated.

Dissenting opinion by Judge PELLEGRINI.

DISSENTING OPINION BY Judge PELLEGRINI.

Even though New Jersey does not automatically suspend a license for driving with a blood alcohol level of less than.10%,⁸ the majority holds that when Pennsylvania licensees are convicted in that state of driving for such conduct, through the magic of the Driver's License Commonwealth⁹, those Pennsylvania licensees are subject to a driver's license suspension, even though Pennsylvania has only recently made it an offense to drive with more than a .08% blood alcohol level and has not made such an offense subject to suspension. So, as a result of this transmogrification, when convicted of driving between a .08 and a .10% blood alcohol level, a New Jersey driver driving in New Jersey does not necessarily have his or her license suspended; a Pennsylvania driver driving in Pennsylvania never has his or her license suspended, but a Pennsylvania driver driving in New Jersey always has his or her Pennsylvania license suspended for one year if the offense occurred before February 1, 2004. Because this anomaly has been corrected by Act 24, I respectfully dissent.¹⁰

In this case, Alexis Tirado, Jr. (Licensee), a Pennsylvania resident, was charged on January 23, 2004, with driving under the influence of alcohol in the state of New Jersey and convicted of that charge on March 18, 2004. Pursuant to the Driver's License Compact, the state of New Jersey notified the Department of Transportation (PennDot) of his conviction, and PennDot notified Licensee that his operating privileges were being suspended for one year as a consequence of his conviction, even though it was his first offense.

Licensee appealed to the trial court arguing that Section 3804(e)(2)(iii) of the Vehicle Code, 75 Pa.C.S. § 3804(e)(2)(iii), which became effective on February 1, 2004, prior to his conviction, stated that there would be no suspension for a first-time violation of Pennsylvania's DUI law. PennDot argued that section did not apply because it became effective after Licensee had committed the DUI offense on January 23, 2004. The trial court concluded that the date of his conviction was controlling and because the conviction occurred after Act 24's effective date, no suspension was authorized. PennDot appealed that decision to this Court.

Reversing the trial court, the majority relies on this Court's decision in Barnas which holds that a Licensee's arrest date alone controls to determine that a suspension was authorized. It acknowledges the savings provisions of Section 21(5) of Act 24, but finds that none of the exceptions apply to change its decision. Even assuming that Barnas was correctly decided, if we apply the Supreme Court test enunciated in Petrovick v. Dept of Transportation, Bureau of Driver Licensing, 559 Pa. 614, 741 A.2d 1264 (1999), on how to apply the Compact, the majority's imposition of a suspension is not warranted.

In Petrovick, our Supreme Court set forth the following test:

Pursuant to Article IV(a)(2) of the Compact, when a party state reports a conviction for "driving a motor vehicle while under the influence of intoxicating liquor ... to a degree which renders the driver incapable of safely driving a motor vehicle," PennDOT must give the same effect to the out-of-state conviction that the licensee would receive if the conviction had occurred within Pennsylvania.

Subsection (c) provides a method to evaluate offenses reported pursuant to subsection (a)(2). Where the laws of a party state do not provide for offenses which are described in precisely the words contained in subsection (a)(2) (i.e., "to a degree which renders the driver incapable of safely driving a motor vehicle"), Article IV(c) authorizes the party state to construe the offense described in subsection (a)(2) as identifying offenses in the party state which are "of a substantially similar nature" to (a)(2). (Emphasis added.) (FN2.)

Thus, the Compact does not call for a direct comparison of Pennsylvania's statute to the out-of-state statute. Rather, the Compact requires a two-pronged test. First, we must evaluate whether there is a Pennsylvania offense which is "of a substantially similar nature" to the provisions of Article IV(a)(2). Second, we must evaluate whether there is a [New Jersey] Maryland or New York offense which is "of a substantially similar nature" to Article IV(a)(2). Both prongs must be satisfied before PennDOT can sanction a Pennsylvania citizen for an out-of-state conviction.

Id. at 619, 620, 741 A.2d at 1266-1267. Under the Compact then, the appropriate inquiry is whether each state's drunk driving provisions are of a substantially similar nature to Article IV(a)(2).

In Hoenisch v. Department of Transportation, Bureau of Driver Licensing, 567 Pa. 89, 785 A.2d 969, 971 (2001), our Supreme Court,...