William G. Phillips, Appellant
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
Submitted: August 2, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge.
JAMES GARDNER COLINS, Senior Judge
William G. Phillips (Licensee) appeals from an order of the Court of Common Pleas of Bucks County (Trial Court) denying his appeal from a one-year suspension of his driver's license imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) as a result of a conviction for driving while intoxicated (DWI) in New Jersey. We affirm.
On July 22, 2010, Licensee was arrested in Dennis Township, Cape May County, New Jersey on suspicion of driving under the influence. (N.J. Order and Certification, Reproduced Record (R.R.) at 31a; Trial Court Hearing Transcript, January 19, 2012 (H.T.) at 10, R.R. at 75a.) Licensee pleaded guilty to New Jersey's DWI law, N.J. Stat. § 39:4-50(a), on December 1, 2010 and agreed to enter into an intoxicated driving program in lieu of imprisonment. (N.J. Order and Certification, R.R. at 31a.) In 2003, Licensee entered into an accelerated rehabilitative disposition program in Bucks County for a violation of the Pennsylvania DUI law in effect at that time, 75 Pa. C.S. § 3731, and his license was suspended by the Department for 30 days. (Notice of Suspension, June 4, 2004, R.R. at 22a.)
As both Pennsylvania and New Jersey are members of the interstate Driver's License Compact (Compact), 75 Pa. C.S. §§ 1581–1586; N.J. Stat. §§ 39:5D-1–39:5D-14, New Jersey reported the conviction to the Department. (R.R. at 20a.) The report form sent to the Department indicated that Licensee had violated New Jersey's DWI law, N.J. Stat. § 39:4-50(a), and that the offense fell under the A20 code in the American Association of Motor Vehicles Administrators (AAMVA) Code Dictionary,  but otherwise provided no details regarding Licensee's conviction. (R.R. at 20a.)
The Department sent Licensee an official notice of suspension on December 23, 2010 (Notice), in which it notified Licensee that his driving privileges would be suspended for a term of one year in accordance with Section 3804(e)(2)(i) of the Pennsylvania Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(i). (Notice of Suspension, December 23, 2010, R.R. at 16a.) The Notice stated that:
Your driving record reflects a violation on 7/22/2010 of A20 of the AAMVA Code Dictionary, DUI OF ALCOH OR DRUGS that is similar to violating Section [3802(a)(2)] of the Pennsylvania Vehicle Code. The AAMVA Code Dictionary was developed to support the Commercial Motor Vehicle Act of 1986 and allows states to share conviction information. ...
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.
Licensee appealed the suspension of his driving privileges, and a de novo hearing was held before the Trial Court on January 19, 2012. At the hearing, Licensee argued that the Notice was faulty because it indicated that Licensee violated a New Jersey provision similar to Section 3802(a)(2) of the Pennsylvania Vehicle Code, 75 Pa. C.S. § 3802(a)(2), Pennsylvania's statute pertaining to driving under the influence of alcohol and controlled substances (DUI). (H.T. at 12-13, R.R. at 77a-78a.) Section 3802(a)(2) provides that an individual with alcohol concentration in the blood or breath between .08% and .10% may not operate a vehicle. 75 Pa. C.S. § 3802(a)(2). As support for the argument he could not have violated a statute analogous to Section 3802(a)(2), Licensee offered into evidence the Order and Certification of his conviction by the New Jersey court (Certification), which in the blank space next to "BAC or Blood Test Reading" indicated that there was "no reading." (H.T. at 5, R.R. at 70a; R.R. at 31a.) Licensee also testified that after he was arrested on July 22, 2010, he was taken to New Jersey State Police barracks where he blew into a breathalyzer three times but the breathalyzer did not produce a reading. (H.T. at 9-15, R.R. at 74a-80a.) Instead of a violation of a provision similar to Section 3802(a)(2), Licensee argued that the Notice should have indicated that he had violated a statute similar to Section 3802(a)(1). Section 3802(a)(1) provides that an individual may not operate 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." 75 Pa. C.S. § 3802(a)(1). The Department contended that the distinction between subsections (a)(1) and (a)(2) of Section 3802 was at most a typographical error, and that, though the specific provision under which he was charged might make a difference if this were his first offense, Licensee was on his second DUI offense and he was facing a one-year suspension regardless of which provision the Department cited in the Notice.(H.T. at 13-14, R.R. at 78a-79a.)
The Trial Court denied Licensee's appeal,  and Licensee appealed to this Court. Our scope of review in reviewing an appeal of a license suspension by the Department after a de novo hearing by the trial court is limited to whether constitutional rights were violated or whether the trial court abused its discretion or committed an error of law. Meter v. Department of Transportation, Bureau of Driver Licensing, 41 A.3d 901, 904 n.5 (Pa. Cmwlth. 2012). As no material facts are in dispute in the instant appeal (Licensee Br. at 9; Department Br. at 8 n.3), only questions of law are before this Court and our scope of review is plenary. Department of Transportation v. McCafferty, 563 Pa. 146, 152, 758 A.2d 1155, 1158 (2000); Rothstein v. Department of Transportation, Bureau of Driver Licensing, 922 A.2d 17, 19 n.6 (Pa. Cmwlth. 2006).
Licensee does not argue here that the Department did not prove he was convicted of a DWI offense in New Jersey or that the New Jersey law punishes conduct that cannot be punished in Pennsylvania under the Compact.Rather, Licensee argues that the Notice was defective and the Trial Court committed an error of law by affirming the license suspension when Licensee could not have been found guilty of the Pennsylvania statute cited by the Department, Section 3802(a)(2), based on the conduct that led to his guilty plea in New Jersey. Licensee distinguishes this case from others where this Court has excused technical errors in the Notice, arguing that the Department's error here was material because it went to an element of the crime charged. The Department does not dispute Licensee's characterization of his New Jersey DWI conviction as not being premised on a specific blood alcohol reading; instead, the Department argues that the inaccuracy in the Notice was insufficient to mislead Licensee and deny him due process, and, in any case, the de novo hearing held by the Trial Court cured any due process issue.
The Compact is an interstate agreement, adopted by statute, that was designed to coordinate law enforcement efforts against intoxicated drivers and other serious traffic offenders, and to facilitate information sharing regarding convictions. Siekierda v. Department of Transportation, Bureau of Driver Licensing, 580 Pa. 259, 262, 860 A.2d 76, 78 (2004). Under Article III of the Compact, party states must report any conviction for a motor vehicle offense occurring within its jurisdiction committed by an individual holding a license from another party state to the licensing authority of that individual's home state. 75 Pa. C.S. § 1581 (Article III). Article IV of the Compact then provides that the home state's licensing authority receiving the report must give that conviction the same effect as it would if that conduct occurred in the home state. Id. (Article IV). Pennsylvania licensees who are convicted of DUI offenses in other states that are parties to the Compact can have their driving privileges suspended by the Department just as they would if the offense occurred in Pennsylvania, so long as the provision under which they were convicted is of a "substantially similar nature" to Pennsylvania's DUI statute. Id. (Article IV(c)); 75 Pa. C.S. § 3804(e)(1). The General Assembly has relaxed the "substantially similar" requirement for DUI offenses, providing that the "fact that the offense reported to the [D]epartment 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 [S]ection 3802 shall not be a ...