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Costello v. Commonwealth2/22/2002
Submitted: December 21, 2001
OPINION NOT REPORTED
Dennis J. Costello, Jr. (Licensee) appeals from the July 24, 2001 order of the Court of Common Pleas of Bucks County (trial court) that denied his statutory appeal from the Department of Transportation's (Department) one-year suspension of his operating privilege imposed pursuant to Sections 1532(b)(3) of the Vehicle Code (Code), and Article IV (a)(2) of the Driver's License Compact of 1961 (Compact). On appeal, Licensee contends that the trial court erred in determining that (1) New Jersey's driving while intoxicated (DWI) statute is substantially similar to the offense described in Article IV (a)(2) of the Compact and (2), a New Jersey guilty plea, entered with a civil reservation, may be used by the Department against Licensee in a Pennsylvania civil proceeding. We affirm.
On August 24, 2000, Licensee was convicted of DWI in violation of N.J. STAT. ANN. §39:4-50(a). Pursuant to Section 1581, Article III of the Compact, New Jersey reported Licensee's conviction to the Department.
By official notice dated October 12, 2000, the Department informed Licensee that it was suspending his operating privilege for a period of one year as a result of his New Jersey DWI conviction for an offense equivalent to a violation of Section 3731(a) of the Code. A timely appealed followed.
The trial court held a de novo hearing on July 24, 2001. At the hearing, the Department presented a packet of certified documents including, inter alia, a certified copy of the New Jersey docket evidencing Licensee's New Jersey DWI conviction. Licensee presented no defense, other than to state that "this is a civil reservation case. I have a copy which I would ask to be marked of the civil reservation entered pursuant to [Licensee's] plea in New Jersey." (Reproduced Record "R.R." 2a-3a)
At the conclusion of the hearing, the trial court announced that it was denying Licensee's appeal and reinstated the one-year suspension of his operating privilege. This appeal followed.
Initially, our review of the hearing transcript reveals that Licensee failed to raise the issue of whether N.J. STAT. ANN. §39:4-50(a) is substantially similar to Section 1581, Article IV (a)(2) of the Compact. Despite Licensee's contention (and the Department's response thereto), the record clearly reflects that Licensee defended his suspension on the basis that he was granted a civil reservation by the New Jersey municipal court. (R.R. 2a-3a) Accordingly, the issue is deemed waived. Pa. R.A.P. 302 (issues not raised in the lower court are waived and cannot be raised for the first time on appeal); Knarr v. Erie Ins. Exch., 555 Pa. 211, 723 A.2d 664 (1999).
Notwithstanding, we have repeatedly held that the New Jersey DWI statute is substantially similar to the conduct described in Section 1581, Article IV (a)(2) of the Compact. See Kiebort v. Department of Transportation, Bureau of Driver Licensing, 778 A.2d 773 (Pa. Cmwlth. 2001); Breen v. Department of Transportation, Bureau of Driver Licensing, 771 A.2d 879 (Pa. Cmwlth. 2001); Scott v. Department of Transportation, Bureau of Driver Licensing, 730 A.2d 539 (Pa. Cmwlth. 1999), appeal granted, 565 Pa. 658, 771 A.2d 1292 (2001); Seibert v. Department of Transportation, Bureau of Driver Licensing, 715 A.2d 517 (Pa. Cmwlth. 1998). Thus, Licensee's argument is without merit.
In his second argument on appeal, Licensee maintains that the trial court erred in determining that Licensee's guilty plea to the New Jersey conviction, entered with a civil reservation, could be used against him in a Pennsylvania civil proceeding. Pursuant to New Jersey Rule of Court 7:6-2(a)(
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