Opinion
No. 1806 C.D. 2004.
Submitted: January 7, 2005.
Filed: February 1, 2005.
BEFORE: COLINS, President Judge; PELLEGRINI, Judge; KELLEY, Senior Judge.
The Commonwealth of Pennsylvania, Department of Transportation (Department), Bureau of Driver Licensing (Bureau) appeals from an order of the Court of Common Pleas of Monroe County (trial court) reversing the order of the Department that suspended the license of Christopher Barnas (Licensee) for one year.
The facts are not in dispute. On September 23, 2003, Licensee was charged with violating Section 1192(1) of the New York Vehicle and Traffic Law, N.Y. VEH. TRAF. LAW § 1192(1) (N.Y. DWAI Law) for driving while impaired by alcohol. He was convicted of that offense on February 13, 2004. This was Licensee's first DUI offense in his driving history. The New York licensing authority did not report Licensee's level as being at or above 0.10%.
Section 1192(1) provides: that "[n]o person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." N.Y. VEH. TRAF. LAW § 1192(1).
By official notice mailed on May 14, 2004, the Bureau informed Licensee that his driving privilege was being suspended for one year (effective June 18, 2004) under 75 Pa. C.S. § 1532(b) and 75 Pa. C.S. § 1581 (Driver's License Compact) for his February 13, 2004 conviction in New York, even though at that time in Pennsylvania driving with a blood-alcohol level below 0.10% was not an offense, because that conviction was "substantially similar" to a violation of former Section 3731 of the Vehicle Code, formerly 75 Pa. C.S. § 3731. At the time of the offense, a licensee who had a blood-alcohol level of 0.10% or above was subject to a 12-month suspension. See 75 Pa. C.S. § 3731 (repealed). In addition, a licensee who committed an offense similar to former Section 3731 in another state, even if the other state required a lower or different blood-alcohol level, was subject to a 12-month license suspension.
Section 1532(b)(3) of the Vehicle Code provides that the Department shall impose a one-year license suspension on a driver upon a report to the Department under Article III of Section 1581 of the Driver's License Compact of 1961, 75 Pa. C.S. § 1581, that the driver was convicted of an offense in another jurisdiction that is substantially similar to a Pennsylvania DUI offense. 75 Pa. C.S. § 1532(b)(3). Under Section 3804(e), 75 Pa. C.S. § 3804(e), the Department must suspend the operating privileges of a licensee upon receiving a certified record of conviction for committing an offense under Section 3802 or for committing an offense similar to Section 3802 committed in and reported by another state under Section 1581 of the Compact. 75 Pa. C.S. § 1581.
That section provided in 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.
See also 75 Pa. C.S. § 1532(b)(3):
(3) 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 3733 (relating to fleeing or attempting to elude police officer) or a substantially similar offense reported to the department under Article III of section 1581 (relating to Driver's License Compact), or an adjudication of delinquency based on section 3733.
Violation of the N.Y. DWAI Law is substantially similar to a violation under the Pennsylvania DUI statute even though New York specifies a different degree of intoxication. See, e.g., Wroblewski v. Department of Transportation, Bureau of Driver Licensing, 570 Pa. 249, 809 A.2d 247 (2002).
Licensee appealed to the trial court contending that his license should not be suspended because Act 24 of 2003 supplemented 75 Pa. C.S. § 3731 by making it an offense for the first time in Pennsylvania to drive with a bloodalcohol level between 0.08% and 0.10%. Licensee contended that his offense was now substantially similar to that offense, which did not provide for any suspension of driving privileges and applied to any penalty that could be imposed under the Compact. He argued that because he was "convicted" after February 1, 2004, that date controlled the application of all the new amendments to the Vehicle Code, including the reduced penalty provisions under Section 3804(e). Licensee also argued that the savings provisions of Act 24 did not apply because Licensee's offense was substantially similar to a 0.08% offense in Pennsylvania, thereby triggering the reduced penalty provisions. The Department opposed, contending that while all of Licensee's assertions might be true, his offense took place before Act 24's effective date of February 1, 2004, so the one year suspension remained in effect.
Act of September 30, 2003, P.L. 120.
The trial court lifted Licensee's suspension, reasoning that the date that triggered the suspension provisions in the Vehicle Code for driving under the influence of alcohol committed in another state was the date of conviction, not the date of the offense. Because Licensee's date of conviction fell after the new provisions of the Vehicle Code were effective (February 1, 2004), and because the new Vehicle Code provisions prohibited a suspension for a first offense of driving under the influence in another state, the trial court held that a suspension was improper. This appeal followed.
Because this appeal presents us solely with a question of law, our review is plenary. Deliman v. Department of Transportation, Bureau of Driver Licensing, 718 A.2d 388 (Pa.Cmwlth. 1998).
Act 24 was enacted by the General Assembly on September 30, 2003, part of which became effective immediately and part of which became effective on February 1, 2004. The provisions of Act 24 that amended Section 3731 made it an offense to operate a motor vehicle with a blood alcohol level at 0.08% but less than 0.10% became effective September 30, 2003. See now 75 Pa. C.S. § 3802(a). Under the revised penalty provisions of Act 24, a first offender for a DUI offense (whether in state or out of state) is subject to fines, probation, and other penalties such as attending alcohol awareness and safety programs. See 75 Pa. C.S. § 3804(a)(1). In addition, Section 3804(e)(2)(iii) specifies that "[t]here shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense." Id. § 3804(e)(2)(iii). Thus, a first-time DUI offender who commits a DUI offense below 0.10% either within the Commonwealth or in another state that has joined the Compact does not receive a penalty of suspension. See 75 Pa. C.S. §§ 3804(e)(2)(iii), 1532(b)(3), 3802(a)(2) and 3804(e)(1)(ii).
The repeal of Section 3731 took effect on February 1, 2004, but the amendment to Section 3731 that lowered the blood-alcohol level to 0.08% took effect on September 30, 2003. See Section 22(2)(iii) of Act 24.
(a) General impairment. —
(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
In calculating the penalty for DUI offenses that occur out of Pennsylvania, the Department "shall presume that if the conduct reported had occurred in this Commonwealth then the person would have been convicted under Section 3802(a)(2)." 75 Pa. C.S. § 3804(e)(2)(iv)(B). Section 3802(a)(2) reduced the blood-alcohol level to 0.08%.
That section provides as follows:
(a) General impairment. — An individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:
(1) For a first offense, to:
(i) undergo a period of probation not to exceed six months;
(ii) pay a fine of $300;
(iii) attend an alcohol highway safety school approved by the department; and
(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).
75 Pa. C.S. § 3804(a)(1).
With regard to when Act 24 provisions apply, Section 21 contains the following "savings" provisions that instruct when and whether pre-February 1, 2004, offenses will be subject to the reduced penalty provisions of Section 3804:
(2) The repeal of 18 Pa. C.S. § 7514 and 75 Pa. C.S. § 3731 [relating to drunk driving] shall not affect offenses committed prior to February 1, 2004, or civil and administrative penalties imposed as a result of those offenses.
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(5) The following apply to offenses committed before February 1, 2004:
(i) Except as set forth in subparagraph (ii) or (iii), this act shall not affect an offense committed before February 1, 2004, or any criminal, civil and administrative penalty assessed as a result of that offense.
(ii) Subparagraph (i) does not apply if a provision added or amended by this act specifies application to an offense committed before February 1, 2004, or to any criminal, civil or administrative penalty assessed as a result of that offense.
(iii) Subparagraph (i) does not apply to the following provisions:
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(D) The amendment of 75 Pa. C.S. § 1547(d) in section 9.1 of this act.
(E) The amendment of 75 Pa. C.S. § 3731(a)(4)(i) and (a.1) (1) (i) in section 13 of this act.
Turning to the argument of the Department, it seems to be contending that because Licensee was charged with an offense substantially similar to former Section 3731 on September 23, 2003, it was required to treat Licensee as if he was charged with that offense in Pennsylvania on that date. Because Licensee would be subject to a 12-month suspension in Pennsylvania on September 23, 2003 (ignoring that in Pennsylvania, until Act 24, Licensee would have committed no offense), the Department argues that it was required to issue a suspension for the New York violation under the Compact. With respect to the reduced penalty provisions for first-time DUI offenders under Section 3804, the Department argues that Licensee's offense was committed before February 1, 2004, and as such, the reduced penalty provisions would not apply under Section 21(5)(i), which state that nothing in Act 24 affects an offense committed before February 1, 2004.
What the Department's argument ignores is that while Section 21(5)(i) provides that Act 24 should have no affect on any administrative penalties imposed as a result of driving under the influence, 75 Pa. C.S. § 3731, Section 21(5)(ii) makes the "new" penalties applicable to an offense that was added to the Act prior to February 1, 2004. One of the added offenses was the prohibition on driving with a blood-alcohol level above 0.08% and below 0.10%. While this offense only came into existence on September 30, 2003, Section 21(5)(ii) applies to all offenses of that provision that occurred prior to February 1, 2004, not just those that occurred since September 30, 2003.
Applying those principles to the facts here, Licensee's first-time, outof-state offense was committed before February 1, 2004, and his blood alcohol level was lower than 0.10%. Under Section 21(5)(ii), the administrative penalties to offenses that became effective September 30, 2003, are applicable to all offenses that occurred prior to February 1, 2004. Under Section 3804(a)(1), the administrative penalties applicable to this type of violation are only fines and probation, not suspension. Because Section 21(5)(ii) states that the reduced penalty provisions apply to all offenses that occurred before February 1, 2003, the Department improperly suspended Licensee's operating privileges.
Accordingly, the trial court is affirmed.
ORDER
AND NOW, this 1st day of February, 2005, the order of the trial court in the above-captioned matter is affirmed.
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(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.
75 Pa. C.S. § 3731(a) (repealed).