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Schwartz v. Commonwealth4/29/2005
John Schwartz (Licensee) appeals from the order of the Court of Common Pleas of Bucks County (trial court) which dismissed his statutory appeal from a one-year suspension of his operating privileges that had been imposed by the Pennsylvania Department of Transportation (PennDOT), Bureau of Licensing (Bureau) pursuant to Sections 3731 and 1532(b) of the Vehicle Code, 75 Pa. C.S. §§3731 and 1532(b), and the Driver's License Compact (Compact), 75 Pa. C.S. §1581 - 1586. Because this Court determines the trial court did not err, we affirm.
On September 7, 2003, Licensee was arrested in New Jersey and charged with violating N.J.S.A. §39:4-50(a) (relating to driving while intoxicated). He was convicted of that offense in a New Jersey criminal court on January 22, 2004. The New Jersey Division of Motor Vehicles reported Licensee's conviction to the Bureau on January 29, 2004.
By notice dated April 30, 2004, the Bureau notified Licensee that his operating privileges were suspended for one year because his violation was similar to a violation of former Section 3731 of the Vehicle Code, formerly 75 Pa. C.S. §3731. Official Notice of Suspension at 1; Reproduced Record (R.R.) at 8a. Licensee filed a statutory appeal on May 25, 2004. A de novo hearing was held before the common pleas court. At the hearing, Licensee's counsel acknowledged that another Judge in Bucks County had ruled adversely to his position in a similar case, Department of Transportation v. Joseph D. Lepko, (Bucks County, No. 04-1387-30-6, filed August 19, 2004), and that, in light of that decision, admitted that Licensee's appeal should be denied. The common pleas court denied Licensee's statutory appeal.
On appeal , Licensee argues: (1) his date of conviction, not the date of arrest, is the triggering date for application of the Compact, and therefore, Pennsylvania' previous DUI law at 75 Pa.C.S. §3731 (repealed) is inapplicable and the new law at 75 Pa.C.S. §3802 controls; and (2) because he was convicted after the effective date of the "new" DUI statute his license may not be suspended because he had no prior record.
This Court has recently disposed of these same issues on substantially identical facts, Lepko v. Department of Transportation, Bureau of Driver Licensing, __ A.2d __ (Pa. Cmwlth, No. 1556 C.D. 2004, filed April 26, 2005). In Lepko, this Court, adopting the common pleas court's opinion, noted that Article IV of the Compact mandates that Pennsylvania give the same effect to out-of-state conduct as it would if the conduct had occurred in Pennsylvania. The relevant conduct in Lepko's case was driving under the influence on September 17, 2003:
Allowing the date of the suspension letter or the date of conviction to determine which version of the DUI law applies would not only be unsupported by the law, but would also produce disparate and unjust results for similarly situated drivers whose suspensions were initiated at different times. Under Lepko's construction of the law, a person arrested and convicted of DUI in New Jersey on the same dates as Lepko would have his or her license properly suspended if the DOT sent his or her suspension letter out before February 1, 2004. ... This result is absolutely untenable because it requires an individual at the time of the offense to guess whether license suspension is a possible consequence of his or her arrest by guessing when the DOT will mail the suspension letter.
In the same vein, using the date of conviction as the relevant date to determine which law applies might result in disparate results for two individuals arrested on the same day for the same offense. Parties and counsel can easily manipulate conviction dates an
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