Barnas v. COM., DEPT. OF TRANSP.

OPINION BY

Judge FRIEDMAN.

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the August 3, 2004, order of the Court of Common Pleas of Monroe County (trial court), which reversed the license suspension imposed by DOT upon Christopher G. Barnas (Licensee). We reverse.

Licensee is domiciled in Monroe County and is a licensed driver in the Commonwealth of Pennsylvania. (Trial ct.’s Findings of Fact, No. 1.) On September 23, 2003, Licensee was charged in the state of New York with operating a motor vehicle while under the influence of alcohol (DUI).1 (Trial et.’s Findings of Fact, No. 2.) On February 13, 2004, Licensee was convicted of the offense in the state of New York. (Trial ct.’s Findings of Fact, No. 3.) On March 29, 2004, pursuant to the Driver’s License Compact (Compact), the Department of Motor Vehicles for the state of New York transmitted an electronic communication to DOT, notifying DOT of Licensee’s conviction. (Trial ct.’s Findings of Fact, No. 4.) Licensee had no prior convictions for DUI in Pennsylvania or any other state. (Trial ct.’s Findings of Fact, No. 5.)

On May 14, 2004, DOT sent official notice to Licensee of the suspension of his driving privileges, stating:

This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1532B [of] the Pennsylvania Vehicle Code. As a result of your 02/13/2004 conviction in NEW YORK:
Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 6/18/2004 at 12:01 a.m. *171Your driving record reflects a violation on 09/23/2003 that is similar to violating Section 3731 of the Pennsylvania Vehicle Code, DRIVING UNDER INFLUENCE.
Your conviction in NEW YORK is listed in Article IV of Section 1581 of the Pennsylvania Vehicle Code which mandates that PennDOT process specific out-of-state convictions as though they had occurred in Pennsylvania.

(Trial et.’s Findings of Fact, No. 6) (bold-ing removed).

Licensee appealed the suspension to the trial court, which held a hearing on the matter. Licensee argued that the suspension was improper because section 3804(e)(2)(iii) of the Vehicle Code,2 which became effective on February 1, 2004, pri- or to his conviction on February 13,2004, states that there shall be no suspension for a first-time violation of Pennsylvania’s DUI law.3 DOT argued that section 3804(e)(2)(iii) of the Vehicle Code does not apply because it became effective after Licensee committed the DUI offense on September 23, 2003. Therefore, the question, as framed by the trial court, was whether the offense date or the conviction date controls DOT’s imposition of a suspension under the provisions of the Compact, 75 Pa.C.S. § 1581. Relying on Schrankel v. Department of Transporter tion, 562 Pa. 337, 755 A.2d 690 (2000), the trial court concluded that the conviction date was controlling. Thus, the trial court held that DOT erred in suspending Licensee’s driver’s license. (Trial ct’s op. at 4.)

DOT appealed to this court, which affirmed the trial court in an opinion and order dated February 1, 2005. DOT then filed an application for reconsideration. By order dated March 10, 2005, this court granted the application for reconsideration and withdrew its February 1, 2005, opinion and order. The matter was argued before an en banc panel of this court on April 6, 2005.4

DOT argues that the trial court erred in concluding that the conviction date controls whether DOT should impose a' suspension under the Driver’s License Compact. We agree.

Article TV of the Compact provides, in pertinent part, as follows:

(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported ... as it would if such conduct had occurred in the home state in the case of convictions for ... [DUI].

75 Pa.C.S. § 1581 (emphasis added). We construe this language to mean that, if a *172party state reports to DOT that a licensee has been convicted for conduct that occurred in the party state on a particular date, DOT must give effect to the conduct as if it had occurred in Pennsylvania on that same date.5

Here, the state of New York reported that Licensee was driving a motor vehicle while his ability was impaired by alcohol on September 23, 2003, in the state of New York. (R.R. at 26a.) Thus, DOT was required to give effect to Licensee’s impaired driving as if it had occurred in Pennsylvania on September 23, 2003. In that regard, section 1586 of the Vehicle Code states that DOT shall treat convictions that relate to driving while impaired by alcohol as being substantially similar to convictions for DUI.6 75 Pa.C.S. § 1586. Moreover, on September 23, 2003, section 1532(b)(3) of the Vehicle Code stated that DOT shall suspend a licensee’s operating privileges for twelve months upon receiving a certified record of an out-of-state DUI conviction.7 75 Pa.C.S. § 1532(b)(3). As a result, we hold that, in this case, DOT properly suspended Licensee’s operating privileges.

DOT points out that the savings provisions of Act 24 of 2003 (Act 24), Act of December 30, 2003, P.L. 120, which the trial court failed to consider, support this result. We agree.

Section 21(5)(i) of Act 24 states, “Except as set forth in subparagraph (ii) or (iii), this act shall not affect an offense committed before February 1, 2004, or any criminal, civil and administrative penalty assessed as a result of that offense.” Here, because Licensee committed the DUI offense in New York on September 23, 2003, which is prior to February 1, 2004, Act 24 does not apply..

*173Section 21(5)(ii) of Act 24, which sets forth the first exception to subparagraph (i), states, “Subparagraph (i) does not apply if a provision added or amended by this act specifies application to an offense committed before February 1, 2004, or to any criminal, civil or administrative penalty assessed as a result of that offense.” This exception does not apply here because section 3804(e)(2)(iii) of the Vehicle Code, the provision relied upon by Licensee, does not specify that it applies to offenses committed before February 1, 2004. •

Section 21(5)(iii) of Act 24, which sets forth the second exception to subpara-graph (i), states:

(iii) Subparagraph (i) does not apply to the following provisions:
(A) The amendment of 42 Pa.C.S. § 7003(5) in section 3 of this act [requiring that a person whose license has been suspended due to a second or subsequent DUI violation apply for an ignition interlock restricted license].
(B) The amendment of 75 Pa.C.S. § 1516(c) and (d) [relating to DOT’s use and maintenance of driving records].
(C) The amendment of 75 Pa.C.S. § 1534(b) [relating to DOT’s maintenance of ARD records].
(D) The amendment of 75 Pa.C.S. § 1547(d) in section 9.1 of this act [amending the blood alcohol concentration from 0.10% to 0.08%].
(E) The amendment of 75 Pa.C.S. § 3731(a)(4)® and (a.l)(l)(i) in section 13 of this act [amending the blood alcohol concentration from 0.10% to 0.08%].

This exception to subparagraph (i) does not apply because section 3804(e)(2)(iii) is not among the listed provisions.

Accordingly, we reverse.

ORDER

AND NOW, this 13th day of May, 2005, the order of the Court of Common Pleas of Monroe County, dated August 3, 2004, is hereby reversed.

Judge McGINLEY dissents.

Judge SMITH-RIBNER concurs in the result only.

. Although the trial court found that Licensee was charged with and convicted of DUI, the record shows that Licensee was convicted of driving while impaired. (See R.R. at 26a.)

. 75 Pa.C.S. § 3804(e)(2)(iii).

. Act 24 of 2003 (Act 24), Act of September 30, 2003, P.L. 120, changed the DUI law in Pennsylvania as of February 1, 2004. Under Act 24, an individual may not drive a vehicle after imbibing a sufficient amount of alcohol (1) to render the individual incapable of safe driving or (2) to give the individual a blood alcohol concentration of at least 0.08% but less than 0.10% within two hours after the individual has driven a vehicle. Section 3802(a) of the Vehicle Code, 75 Pa.C.S. § 3802(a). An individual who commits either offense with no more than one prior offense commits an ungraded misdemeanor. Section 3803(a) of the Vehicle Code, 75 Pa.C.S. § 3803(a). “There shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.” 75 Pa.C.S. § 3804(e)(2)(iii).

.Because this appeal presents us solely with a question of law, our review is plenary. Deliman v. Department of Transportation, Bureau of Driver Licensing, 718 A.2d 388 (Pa.Cmwlth.1998).

.Schrankel does not require a different result. In fact, Schrankel is totally inapplicable because it pre-dates the enactment of Act 24 and because it dealt with a completely different issue.

In Schrankel, the licensee was arrested for DUI in Ohio on March 5, 1995, prior to Pennsylvania’s enactment of the Compact on December 10, 1996. On March 21, 1997, Licensee was convicted of the offense, and Ohio reported the conviction to DOT. The issue was whether DOT could suspend the licensee’s operating privileges under the Compact when the offense occurred prior to Pennsylvania’s enactment of the Compact. The court held that "the triggering date for the suspension provisions in the Compact, due to a DUI committed in another state, is the date of the conviction for such DUI." Schrankel, 562 Pa. at 341, 755 A.2d at 692 (emphasis added). Therefore, DOT could suspend the driver’s license.

The question here is not whether the New York conviction report sent to DOT triggered the suspension provisions of the Compact. The question is whether, once DOT received the conviction report triggering the suspension provisions of the Compact, DOT is to give effect to the conduct underlying the conviction as if the conduct occurred in Pennsylvania on the date of the offense or on the date of the conviction.

As indicated above, we hold that DOT must give effect to the conduct as if it occurred in Pennsylvania on the date of the offense. To hold otherwise would result in different treatment for licensees who committed the same offense on the same day. For instance, a licensee who violated New York’s DUI laws on September 23, 2003, and was convicted on January 31, 2004, would receive a suspension, but a licensee who violated New York’s DUI laws on September 23, 2003, and was convicted on February 1, 2004, would receive no suspension.

. We note that section 1586 of the Vehicle Code was amended, effective February 1, 2004, by replacing the references to section 3731 of the Vehicle Code, the old DUI law, with references to section 3802 of the Vehicle Code, the new DUI law.

. We note that section 1532(b)(3) of the Vehicle Code was amended, effective February 1, 2004, by deleting the reference to section 3731 of the Vehicle Code, the old DUI law.