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Citko v. Commonwealth1/31/2003
This is an appeal from an order of the Court of Common Pleas of Lancaster County denying Joseph Citko's (Licensee) appeal from the Department of Transportation, Bureau of Driver Licensing's (Bureau) suspension of his motor vehicle operator's license. For the reasons that follow, we affirm the trial court's order.
On June 9, 2001, Licensee was arrested and charged with driving while intoxicated. Several months later, on September 19, 2001, Licensee pled guilty with civil reservation in New Jersey to violating N.J.S.A. § 39:4-50(a) by driving while intoxicated. Licensee's plea resulted in his conviction for operating a vehicle with a blood alcohol content (BAC) of .10 percent or more.
The State of New Jersey is party to the Driver License Compact of 1961 (Compact). In accordance with Article III of the Compact, N.J.S.A. § 39:5D-3, the New Jersey Division of Motor Vehicles sent official notice of the New Jersey conviction to the Bureau. Based upon this notice of conviction, the Bureau informed Licensee that, pursuant to Article IV of the Driver's License Compact, Section 1532(b) of the Vehicle Code, 75 Pa. C.S. § 1532(b), it was suspending Licensee's motor vehicle operator's license for one year. Licensee appealed this decision to the Lancaster County Court of Common Pleas.
On appeal, Licensee argues that the New Jersey statute is not substantially similar to the Article IV of the Compact. Petrovick v. Department of Transportation, Bureau of Driver Licensing, 559 Pa. 614, 741 A.2d 1264 (1999), superseded by Wroblewski v. Department of Transportation, Bureau of Driver Licensing, ___ Pa. ___, 809 A.2d 247 (2002). Licensee's argument focuses primarily on the fact that New Jersey does not require extrapolation of DUI results from the time the test was administered, to the time that licensee was pulled over, whereas Pennsylvania law requires such extrapolation. In his brief Licensee explains that:
This major distinction in the two statutes makes the Compact's suspension provisions inapplicable by their clear terms as Article IV of the Compact allows suspensions in the home state only where the offense for which the driver is convicted in another state is one which includes the element of incapability of driving safely. (Appellant's Brief at 7).
Licensee argues that
New Jersey's statute does not have any requirement that the driver be incapable of safe driving in order to be guilty of the offense to which the appellant entered a plea of guilty. Moreover, New Jersey case law, unlike Pennsylvania case law interpreting the Pennsylvania per se offense, has defined the per se aspect of the statute to make it an offense to have a 0.10% blood alcohol content at the time of testing as opposed to the time of driving. (Appellant's Brief at 6).
Licensee summarizes, "The argument in this case is that the New Jersey statute requires no level of impairment at the time of driving at all so long as at the time of testing the blood alcohol level of .10 is reached." (Appellant's Brief at 15).
In response, the Bureau argues that the issue has been addressed by our opinion in Kulp v. Department of Transportation, Bureau of Driver Licensing, 795 A.2d 471 (Pa. Cmwlth. 2002). We agree.
In Kulp we noted that:
Licensee was convicted of a per se violation. Both New Jersey and Pennsylvania base their per se violations on the same standard, i.e., a BAC of 0.10% or higher. Both statutes implicitly prohibit driving under the influence of alcohol or drugs "to a degree which renders the driver incapable of safely driving a motor vehicle ..." 75 Pa. C.S. § 1581. The two statutes differ, however, in the evidence t
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