Tirado v. Commonwealth, Department of Transportation, Bureau of Driver Licensing , 876 A.2d 1082 ( 2005 )

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 Penn-DOT 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 TV 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 Penn-DOT 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 I5th 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.

1 . "The Driver License Compact is an agreement among most of the states to promote compliance with each party state's motor vehicle law. Pennsylvania became a parly state to the Compact in 1996 by adopting Sections 1581-1858 of the Motor Vehicle Code. In order for PennDot to treat an out-of-state conviction as though it occurred in Pennsylvania, the out-of-state conviction must be from a state that has entered the Compact and enacted a statute to that effect. New Jersey is a party state. See Seibert v. Department of Transportation, Bureau of Driver Licensing, 715 A.2d 517 (Pa.Cmwlth.1998); N.J.S. §§ 39.-5D-1-39.-5D-14.” Sloan v. Department of Transportation, Bureau of Driver Licensing, 822 A.2d 105, 107 n. 3 (Pa.Cmwlth.2003).

2 . 75 Pa.C.S. § 3804(e)(2)(iii).

3 . Act 24 of 2003 (Act 24), Act of September 30, 2003, P.L. 120, changed the DUI law in Pennsylvania as of February 1, 2004. Under Act 24, an individual may not drive a vehicle after imbibing a sufficient amount of alcohol (1) to render the individual incapable of safe driving or (2) to give the individual a blood alcohol concentration of at least 0.08% but less than 0.10% within two hours after the individual has driven a vehicle. Section 3802(a) of the Vehicle Code, 75 Pa.C.S. § 3802(a). An individual who commits either offense with no more than one prior offense commits an ungraded misdemeanor. Section 3803(a) of the Vehicle Code, 75 Pa.C.S. § 3803(a). "There 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.” Section 3804(e)(2)(iii) of the Vehicle Code, 75 Pa.C.S. § 3804(e)(2)(iii).

4 . Both parties agreed that if Licensee’s conviction had occurred prior to February 1, 2004, the mandatory one year suspension required by the prior DUI law would be proper. Both parties further agreed that if the citation for driving under the influence, as well as the conviction, had occurred subsequent to February 1, 2004, no suspension would be mandated because the Licensee has no prior offenses.

5 . While the Supreme Court in Schrankel held that the triggering date for the suspension provisions in the Compact, due to a DUI committed in another state, was the date of the conviction for the DUI and that any such suspension was not an improper retroactive law, the Supreme Court's decision did not take into consideration the language of the amendments to the Vehicle Code that are at issue in this case. Wess v. Department of Transportation, Bureau of Driver Licensing, 870 A.2d 410 (Pa.Cmwlth.2005).

6 . Our scope of review in an operating privilege suspension case is confined to determining whether the trial court’s findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court’s determinations demonstrate a manifest abuse of discretion. Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994).

7 . Section 21(5)(i) of Act 24 states, "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.” The savings provisions instruct that if a DUI offense occurred prior to February 1, 2004, regardless of whether it was the offender’s first time and regardless of whether it was in state or out of state, the reduced penalties are not applicable. Wess.