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McBride v. Commonwealth6/21/2005
prior order. Rather, having reversed on the basis of Siekierda, the Supreme Court then remanded for consideration of other issues if this Court deemed it necessary. By denying reargument, it rejected McBride's waiver argument. In short, the question of the application of the holding in Siekierda to this case already has been decided and is no longer subject to dispute.
McBride's second and third arguments are interrelated. He contends that the language of the Compact and the Maine statute are not substantially similar and that amendments to the Compact in Pennsylvania that obviate distinctions between an out-of-state statute and Pennsylvania's DUI statute are irrelevant to this analysis. To the extent that Folsom held that the Maine statute is substantially similar to the offense described in the Compact, McBride asserts that it was wrongly decided and should be overruled. McBride notes the Supreme Court's explanation in Petrovick v. Department of Transportation, Bureau of Driver Licensing, 559 Pa. 614, 741 A.2d 1264 (1999), that the appropriate analysis is to determine whether each state's drunk driving provisions are substantially similar to Article IV(a)(2) of the Compact.
McBride acknowledges that in Wroblewski v. Department of Transportation, Bureau of Driver Licensing, 570 Pa. 249, 809 A.2d 247 (2002), the Supreme Court indicated that the Petrovick analysis had been supplanted based upon the legislature's adoption in 1998 of Section 1586 of the Vehicle Code, 75 Pa. C.S. §1586. That section originally provided that DOT should treat reports from other party states of convictions for driving, operating or being in actual physical control of a vehicle while impaired by or under the influence of alcohol or drugs as being substantially similar to former Section 3731. It expressly provides that the fact that the offense reported by the party state may require a different degree of impairment shall not be a basis for determining that it is not substantially similar.
DOT notes that since Folsom, the Supreme Court has decided Hoenisch v. Department of Transportation, Bureau of Driver Licensing, 567 Pa. 89, 785 A.2d 969 (2001). There the court held that a North Carolina per se driving under the influence provision with a threshold blood alcohol concentration of 0.08% was substantially similar to Article IV(a)(2) of the Compact, even though Pennsylvania's substantially similar requirement under former 75 Pa. C.S. §3731(a)(4)(i) had a threshold of 0.10%, and 75 Pa. C.S. §1586 was not applicable to the case. The Court agrees that, although strong arguments have been raised in dissent in Folsom and other cases, the current state of the law is that the Maine Operating Under the Influence provision involved in this case is deemed to be substantially similar to Article IV(a)(2) of Compact and therefore constitutes a sufficient basis for a suspension by DOT. Because McBride has not presented a new rationale for overturning Folsom, the Court is constrained to reverse the order of the trial court and to reinstate McBride's license suspension.
ORDER
AND NOW, this 21st day of June, 2005, the order of the Court of Common Pleas of Chester County sustaining the statutory appeal of Michael McBride is reversed.
DORIS A. SMITH-RIBNER, Judge
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