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Dikeman v. Commonwealth3/13/2003
Kenneth J. Dikeman appeals from the order of the Court of Common Pleas of Lehigh County that dismissed his statutory appeal from a one-year suspension of his driving privilege imposed by the Pennsylvania Department of Transportation, Bureau of Driver Licensing (Department) pursuant to the Driver's License Compact as a result of Dikeman's New Jersey conviction for driving while intoxicated. Once again, we are asked to determine whether New Jersey's driving while intoxicated statute (DWI), N.J. Stat. § 39:4-50(a), sets forth an offense substantially similar to that articulated by Article IV(a)(2) of the Compact, 75 Pa. C.S. § 1581.
Dikeman pled guilty to driving a motor vehicle with a blood alcohol concentration (BAC) of .10% or more (also known as a per se violation) in violation of New Jersey's DWI statute. The Department treated Dikeman's New Jersey DWI conviction as equivalent to a violation of 75 Pa. C.S. § 3731(a) and suspended his driving privilege. Dikeman appealed and, following a de novo hearing, common pleas dismissed his appeal. This appeal followed.
On appeal, Dikeman argues that New Jersey's per se DWI offense is not substantially similar to the conduct proscribed by Article IV(a)(2) of the Compact (impaired to a degree which renders the driver incapable of driving safely) because the New Jersey statute permits a conviction if the driver has the requisite blood alcohol content at the time the blood alcohol test was administered regardless of whether the driver was actually impaired at the time of driving. This argument was raised, considered and rejected in Kulp v. Department of Transp., Bureau of Driver Licensing, 795 A.2d 471 (Pa. Cmwlth. 2002). In concluding that New Jersey's per se offense is substantially similar to Article IV(a)(2), the court noted:
Unsafe operation of a vehicle has been found to be implicit in N.J. Stat. § 39:4-50(a). It does not change the analysis to show, as Licensee does here, that it may be easier to show the requisite "degree" of intoxication in New Jersey than in Pennsylvania. Id. at 476.
We also note that in Scott v. Department of Transp., Bureau of Driver Licensing, 567 Pa. 631, 790 A.2d 291 (2002), our Supreme Court reaffirmed that New Jersey's per se offense is substantially similar to Article IV(a)(2):
New Jersey's per se violation merely reflects the legislature's determination that a driver with a BAC of .10 percent or greater is, as a matter of law, unable to operate a motor vehicle safely. See State v. Hammond, 118 N.J. 306, 571 A.2d 942, 947 (1990) ("The Legislature has thus made crystal clear that intoxication objectively determined by a breathalyzer test coupled with the operation of a motor vehicle constitutes the offense of drunk driving "); [State of New Jersey v. Tichio, 107 N.J. 504, 527 A.2d 388, 394 n.5 (1987)] (by enacting per se provision the legislature had declared that a BAC of .10 percent is the level at which any driver is a danger to the public). Accordingly, we also conclude that the second provision of N.J.S.A § 39:4-50(a), which proscribes operating a vehicle with a BAC of .10 percent or greater, is substantially similar to Article IV(a)(2) of the Compact. . . .
ased on our decision today, PennDOT is required to suspend the license of any Pennsylvania-licensed driver convicted of violating either of the operating provisions of N.J.S.A. § 39:4-50(a) and the result would therefore be the same even if [licensees] had been convicted of violating the per se provision of the statute. Id. at 644-45, 790 A.2d at 299-00.
Accordingly, the order of common pleas is affirmed.
ORDER
AND NOW, this 13th day of March, 2003, the
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