          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyler Gerard Simpson,                           :
                              Appellant         :
                                                :
               v.                               :   No. 258 C.D. 2017
                                                :   Submitted: August 4, 2017
Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
Bureau of Driver Licensing                      :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION
BY JUDGE SIMPSON                                FILED: November 15, 2017

               Tyler Gerard Simpson1 (Licensee) appeals from an order of the Court
of Common Pleas of Montgomery County (trial court) that denied his appeal of a
one-year suspension of his driver’s license imposed by the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing
(PennDOT) as a result of his conviction for driving after underage consumption of
alcohol in New Jersey. Licensee asserts the trial court erred in denying his appeal
where his New Jersey conviction was not for an offense similar to the Pennsylvania
statute referenced in PennDOT’s official notice of suspension sent to Licensee.
Upon review, we affirm.




                                        I. Background

      1
          Appellant is not related to Judge Robert Simpson.
                 In August 2016, Licensee was convicted by the Winslow Township,
New Jersey Municipal Court of violating N.J.S.A. §39:4-50.14 (“Operation of motor
vehicle by person who has consumed alcohol but is under the legal age to purchase
alcoholic beverages; penalties”)2 based on an incident that occurred in June 2016.3


                 As both Pennsylvania and New Jersey are members of the interstate
Driver’s License Compact (Compact), 75 Pa. C.S. §§1581-1586; N.J. Stat. §§39:5D-
1-39:5D-14, New Jersey reported the conviction to PennDOT. The report sent to
PennDOT also listed Code “A60” from the American Association of Motor Vehicle
Administrators (AAMVA) Code Dictionary (ACD), “along with the State Native
Code of D38V5014 for [Licensee’s] New Jersey conviction.” Tr. Ct., Slip Op.,
3/23/17, at 1. The New Jersey conviction report listed the “EVENT DESCRIPTION” as
“DRIVING AFTER UNDERAGE DRINKING.” Id.


       2
           That provision states, as pertinent:

                 Any person under the legal age to purchase alcoholic beverages who
                 operates a motor vehicle with a blood alcohol concentration of
                 0.01% or more, but less than 0.08%, by weight of alcohol in his
                 blood, shall forfeit his right to operate a motor vehicle over the
                 highways of this State or shall be prohibited from obtaining a license
                 to operate a motor vehicle in this State for a period of not less than
                 30 or more than 90 days beginning on the date he becomes eligible
                 to obtain a license or on the day of conviction, whichever is later,
                 and shall perform community service for a period of not less than 15
                 or more than 30 days. …

                 The penalties provided under the provisions of this section shall be
                 in addition to the penalties which the court may impose under
                 N.J.S.2C:33-15, R. S.33:1-81, R.S.39:4-50 or any other law.

N.J.S.A. §39:4-50.14.

       3
         The record reveals PennDOT previously suspended Licensee’s driver’s license for driving
under the influence of a controlled substance. Reproduced Record at 10a.

                                                   2
             Upon receipt of the New Jersey report, PennDOT sent Licensee an
official notice of suspension, which stated his driver’s license was suspended for one
year. According to the notice, Licensee’s driving record “reflect[ed] a violation on
6/15/2016 of A60 of the [ACD],           UNDRAGE     DUI => .02 [Blood Alcohol
Concentration (BAC)] that is similar to a violation of Section 3802(a)(2) of the
Pennsylvania Vehicle Code[,] [75 Pa. C.S. §3802(a)(2)].” Reproduced Record at
4a. Licensee appealed to the trial court. A hearing ensued.


             At the hearing, PennDOT presented a packet of certified documents,
which included, among other things, the “State of New Jersey Motor Vehicle
Commission Out of State Driver Convictions Report,” which indicated that Licensee
was convicted of driving after underage drinking. R.R. at 8a. The trial court
admitted PennDOT’s certified packet of documents without objection. No other
evidence was submitted and no witness testimony was presented.


             After the hearing, the trial court issued an order denying Licensee’s
appeal and reinstating the suspension. Licensee appealed to this Court.


             The trial court subsequently issued an opinion in support of its order. It
first observed that, under federal law, “[t]he Secretary of Transportation shall
establish as soon as practicable and maintain a National Driver Register to assist
chief driver licensing officials of participating States in exchanging information
about the motor vehicle driving records of individuals.” 49 U.S.C. §30301. To that
end, pursuant to federal law,



                                          3
             [a]s soon as practicable, the chief driver licensing official
             of each participating State shall submit to the Secretary of
             Transportation a report containing the information
             specified by subsection (b) of this section for each
             individual--

                                       ****

                    (2) whose motor vehicle operator’s license is
                    revoked, suspended, or canceled by that State for
                    cause; or

                    (3) who is convicted under the laws of that State of
                    any of the following motor vehicle-related offenses
                    or comparable offenses:

                          (A) operating a motor vehicle while under the
                          influence of, or impaired by, alcohol or a
                          controlled substance ….

49 U.S.C. §30304(a)(2), (3)(A). The trial court explained that, included as an
appendix to the regulations implementing this federal law is an abridged listing of
the ACD. The appendix provides identifier ACD Codes that can be used by the state
in which a person is convicted of an offense to inform the driver’s licensing officials
in the state in which the driver is licensed of the nature of the offense. The ACD
was “developed to assist states in exchanging conviction … information between
licensing authorities.” Hyer v. Dep’t of Transp., Bureau of Driver Licensing, 957
A.2d 807, 810 (Pa. Cmwlth. 2008).


             Here, the trial court stated, the New Jersey report sent to PennDOT
listed the ACD Code as A60. Under the ACD, Code A60 denotes an offense of
“Underage Convicted of Drinking and Driving at .02 or higher BAC.” Tr. Ct., Slip
Op., at 3. PennDOT’s official suspension notice to Licensee here states that



                                          4
Licensee’s driving record reflected a violation of A60 of the ACD “UNDRAGE DUI =>
.02 BAC.” Id. at 4. Based on this conviction, PennDOT suspended Licensee’s
driver’s license under Article IV of the Compact.


             The trial court stated Pennsylvania courts confirm reliance on ACD
Codes. See Taddei v. Dep’t of Transp., Bureau of Driver Licensing, 982 A.2d 1249
(Pa. Cmwlth. 2009) (ACD Codes properly used to identify offense on which
suspension was based); see also Fowler v. Dep’t of Transp., Bureau of Driver
Licensing, 2 A.3d 1282 (Pa. Cmwlth. 2010).           Additionally, the Pennsylvania
Supreme Court specifically holds that the Compact contemplates variations in the
permitted BAC levels from state to state. Hoenisch v. Dep’t of Transp., Bureau of
Driver Licensing, 785 A.2d 969 (Pa. 2001).


             Here, the trial court determined the evidence presented supported a
finding that PennDOT received a certified record from the New Jersey Motor
Vehicle Commission showing Licensee was convicted of the offense of driving after
underage drinking. The trial court explained the suspension notice provided this
information to Licensee, and it met the standards for notice required under
Pennsylvania law to uphold a license suspension.


             Nevertheless, Licensee argued the suspension notice referred to Section
3802(a)(2) of the Vehicle Code, rather than Section 3802(e)(1), the Vehicle Code
provision relating to driving after underage drinking. However, the trial court stated,
the suspension notice also stated the suspension was based on a violation of “A60 of
the AAMVA Code-UNDRAGE DUI =>.02.” Tr. Ct., Slip Op., at 5. The trial court



                                          5
determined this information apprised Licensee of the provision on which his
suspension was based.


               To that end, the trial court stated, in Scott v. Department of
Transportation, Bureau of Driver Licensing, 730 A.2d 539 (Pa. Cmwlth. 1999),
aff’d, 790 A.2d 291 (Pa. 2002), the Court rejected a similar argument to that made
by Licensee here, that the suspension notice did not set forth the applicable Vehicle
Code4 section. See also Hatzai v. Dep’t of Transp., Bureau of Driver Licensing, 686
A.2d 48 (Pa. Cmwlth. 1996) (suspension upheld where PennDOT’s notice cited
wrong statutory section). Likewise, the trial court explained the suspension notice
here specifically identified the offense as driving after underage drinking. Thus,
PennDOT presented a prima facie case to uphold the suspension.


               Once PennDOT established its prima facie case, the burden shifted to
Licensee to prove by clear and convincing evidence that he was not convicted of an
offense that mandated the license suspension. Taddei. Here, Licensee presented no
such evidence. Thus, the trial court dismissed Licensee’s appeal. This matter is now
before us for disposition.




                                    II. Discussion
                                    A. Contentions


      4
          75 Pa. C.S. §§101-9805.



                                          6
                On appeal,5 Licensee argues the official notice of suspension indicates
PennDOT suspended his operating privilege for one year under Section 3804(e)(2)(i)
of the Vehicle Code, 75 Pa. C.S. §3804(e)(2)(i), as a result of an adjudication in New
Jersey. The notice states that the New Jersey conviction, driving after underage
drinking with a BAC greater than .02, is similar to a violation of Section 3802(a)(2)
of the Vehicle Code. He contends there is no similarity between Section 3802(a)(2)
and the conviction for driving after underage drinking with a BAC greater than .02.
Specifically, he argues Section 3802(a)(2) does not relate to driving after underage
drinking. Further, Section 3802(a)(2) requires a BAC of .08 to less than .10, while
the conviction reported here purports to require a blood alcohol level of at least .02.


                Instead, Licensee points out Section 3802(e) of the Vehicle Code relates
to minors.6 Given the elements in Section 3802(e), he asserts, it is difficult to
understand why PennDOT would compare his New Jersey conviction to Section
3802(a)(2) rather than Section 3802(e), which is arguably more similar as it pertains
to an underage individual whose BAC is at least .02.



       5
         Our review is limited to determining whether constitutional rights were violated or
whether the trial court abused its discretion or committed an error of law. Phillips v. Dep’t of
Transp., Bureau of Driver Licensing, 80 A.3d 561 (Pa. Cmwlth. 2013).
       6
           Section 3802(e) of the Vehicle Code states:

                (e) Minors.--A minor may not drive, operate or be in actual physical
                control of the movement of a vehicle after imbibing a sufficient
                amount of alcohol such that the alcohol concentration in the minor’s
                blood or breath is 0.02% or higher within two hours after the minor
                has driven, operated or been in actual physical control of the
                movement of the vehicle.

75 Pa. C.S. §3802(e).

                                                 7
             Assuming PennDOT mistakenly referenced the operative provision in
its notice and intended to list Section 3802(e) as the applicable provision, Licensee
contends, PennDOT failed to meet its burden. He asserts Section 3802(e) requires
a BAC of at least .02 while the New Jersey statute requires a BAC of at least .01.
Licensee argues his New Jersey conviction report listed no BAC. Thus, if his BAC
in New Jersey were .015, it would be sufficient for conviction under New Jersey’s
driving after underage drinking statute, but not Pennsylvania’s driving after
underage drinking statute. Licensee contends while New Jersey reported no specific
BAC to PennDOT, the New Jersey conviction report indicated an ACD Code of
A60, which, by definition, requires a minimum BAC of .02; however, the description
on the report merely states “driving after underage drinking” without specifying a
BAC. R.R. at 8a.


                                    B. Analysis
             Licensee first argues that PennDOT’s official notice of suspension
incorrectly cited Section 3802(a)(2) of the Vehicle Code, which prohibits an
individual from operating a vehicle after imbibing a sufficient amount of alcohol that
the individual’s BAC is at least 0.08% but less than 0.10% within two hours after
the individual operated the vehicle. He asserts Section 3802(e), which relates to
minors, is the more applicable provision.


             Contrary to this assertion, PennDOT’s reference to Section 3802(a)(2)
comports with the directive in Section 3804(e)(2)(iv)(B) of the Vehicle Code, which
states: “In calculating the term of a suspension for an offense that is substantially
similar to an offense enumerated in [S]ection 3802, [PennDOT] shall presume that
if the conduct reported had occurred in this Commonwealth then the person would

                                            8
have been convicted under [S]ection 3802(a)(2).”        Id.   An individual who is
convicted of violating Section 3802(a)(2) is subject to a one-year suspension of his
operating privilege, unless the individual is eligible for the exception set forth in
Section 3804(e)(2)(iii), which does not apply here. Indeed, in rejecting a similar
argument in Phillips v. Department of Transportation, Bureau of Driver Licensing,
80 A.3d 561, 568 (Pa. Cmwlth. 2013), this Court explained:

             This argument misconstrues [PennDOT’s] procedure for
             suspending driving privileges based on out-of-state
             convictions under the Compact. [The] [l]icensee was not
             charged with a violation of Section 3802(a)(2); license
             suspensions are not crimes, but rather collateral civil
             consequences that follow from a criminal conviction.
             Commonwealth v. Duffey, [639 A.2d 1174, 1176 (Pa.
             1994)]. Instead, [the] [l]icensee was properly notified by
             [PennDOT] of the statutes that authorized the suspension
             of this license—Article IV of the Compact, 75 Pa.C.S. §
             1581 (Article IV), and Section 3804(e)(2)(i) of the
             [Vehicle Code], 75 Pa.C.S. § 3804(e)(2)(i)—and that the
             suspension was based on an out-of-state conviction
             substantially similar to the Pennsylvania DUI statute.

Thus, no error is apparent in the reference to Section 3802(a)(2) of the Vehicle Code
in the suspension notice.


             In any event, even if the suspension notice incorrectly referenced
Section 3802(a)(2) of the Vehicle Code rather than Section 3802(e), there is no
indication Licensee was misled by the suspension notice in any manner. Our review
of the hearing transcript reveals Licensee was fully aware of the factual and legal
predicate for his suspension, including the purported defect in the suspension notice
prior to the trial court hearing. R.R. at 15a-17a. To that end, the suspension notice
stated Licensee’s driving record “reflect[ed] a violation on 6/15/2016 of A60 of the


                                         9
[ACD],     UNDRAGE   DUI => .02 BAC ….” R.R. at 4a (emphasis added). Moreover,
the de novo hearing cured the purported defect in the suspension notice. See Phillips;
Hatzai.


              Licensee also asserts the fact that the applicable New Jersey statute,
N.J.S.A. §39:4-50.14, applies to an underage driver whose BAC is .01 or more, and
the Pennsylvania statute, Section 3802(e) of the Vehicle Code, applies to an
underage driver whose BAC is .02, shows the provisions are not substantially
similar.


              Contrary to this assertion, Section 1586 of the Vehicle Code states, as
relevant (with emphasis added):

              [PennDOT] shall, for purposes of imposing a suspension
              … under Article IV of the [C]ompact, treat reports of
              convictions received from party states that relate to
              driving, operating or being in actual physical control of a
              vehicle while impaired by or under the influence of
              alcohol, intoxicating liquor … as being substantially
              similar to [S]ection 3802 (relating to driving under
              influence of alcohol or controlled substance [(DUI)]). The
              fact that the offense reported to [PennDOT] by a party
              state may require a different degree of impairment of a
              person’s ability to operate, drive or control a vehicle than
              that required to support a conviction for a violation of
              [S]ection 3802 shall not be a basis for determining that the
              party state’s offense is not substantially similar to
              [S]ection 3802 for purposes of Article IV of the
              [C]ompact.
              Thus, as this Court previously explained:

              Pennsylvania licensees who are convicted of DUI offenses
              in other states that are parties to the Compact can have
              their driving privileges suspended by [PennDOT] just as


                                          10
             they would if the offense occurred in Pennsylvania, so
             long as the provision under which they were convicted is
             of a ‘substantially similar nature’ to Pennsylvania’s DUI
             statute. Id. (Article IV(c)); 75 Pa. C.S. § 3804(e)(1). The
             General Assembly has relaxed the ‘substantially similar’
             requirement for DUI offenses, providing that the ‘fact that
             the offense reported to [PennDOT] by a party state may
             require a different degree of impairment of a person’s
             ability to operate, drive or control a vehicle than that
             required to support a conviction for a violation of [S]ection
             3802 shall not be a basis for determining that the party
             state’s offense is not substantially similar to [S]ection
             3802 for purposes of Article IV of the [C]ompact.’ 75 Pa.
             C.S. §1586; Wroblewski v. [Dep’t of Transp., Bureau of
             Driver Licensing, 809 A.2d 247, 251 (Pa. 2002)]; Leuthe
             v. [Dep’t of Transp., Bureau of Driver Licensing], 933
             A.2d 165, 168 (Pa. Cmwlth. 2007).

Phillips, 80 A.3d at 567. Thus, under the terms of Section 1586 of the Vehicle Code,
“an out-of-state conviction for any level of impaired driving is punishable in
Pennsylvania.”    Wroblewski, 809 A.2d at 251 (emphasis added).              As such,
Licensee’s argument fails.


             Licensee acknowledges that in Hoenisch, the Supreme Court held that
the Compact contemplated variations in permitted BAC levels from state to state.
He argues it would initially appear that, had PennDOT compared the New Jersey
conviction to Section 3802(e) of the Vehicle Code, which requires a slightly
different minimum BAC level for culpability, the statutes would nevertheless be
similar under Hoenisch. However, the Court in Hoenisch noted that the North
Carolina impaired driving statute at issue there had both a general provision, driving
a vehicle while under the influence of an impairing substance, and a per se provision
requiring a BAC of at least .08, compared to the then-applicable .10 threshold in
Pennsylvania. Unlike Hoenisch, Licensee asserts, there is no evidence here that New

                                          11
Jersey has a general impairment provision in its DUI statute; thus, Hoenisch does
not apply. He contends Article IV(a)(2) of the Compact requires that a licensee be
intoxicated to a degree that renders the driver incapable of safely driving a vehicle,
and there is no evidence this threshold was met here. Again, we reject Licensee’s
argument.


             First, Licensee’s assertion fails to account for the fact that Hoenisch
was decided prior to the enactment of Section 1586 of the Vehicle Code. Indeed in
Hoenisch, the Court stated:

                   Although not applicable in this case, it is
             noteworthy that the General Assembly recently enacted
             Section 1586, which provides that a party state’s
             requirement of a different degree of impairment shall not
             be a basis for determining that such offense is not
             substantially similar to the Compact. See 75 Pa.C.S. §
             1586. This provision would appear to anticipate the trend
             toward lowering the per se method threshold in a number
             of other jurisdictions. See generally NATIONAL HIGHWAY
             TRAFFIC SAFETY COMMISSION, U.S. DEPARTMENT OF
             TRANSPORTATION, PRESIDENTIAL INITIATIVE FOR MAKING
             .08 BAC THE NATIONAL LEGAL LIMIT, A PROGRESS
             REPORT-LEGISLATIVE ACTIVITY (2001) (stating that
             seventeen states and the District of Columbia have passed
             .08 BAC laws and twenty-three other states have
             introduced .08 legislation); 23 U.S.C. § 163 (providing for
             grants to states that enact laws for a per se offense based
             upon a blood alcohol content of .08 percent).

Id. at 974 n.8. As set forth above, Section 1586 of the Vehicle Code “eliminated the
comparison of differing degrees of impairment between a Pennsylvania’s [sic] DUI
offense and a DUI offense of other Compact party states.” Stiver v. Dep’t of Transp.,
Bureau of Driver Licensing, 783 A.2d 841, 845 (Pa. Cmwlth. 2001). Indeed:



                                         12
               Section 1586 directs that for purposes of Article IV [of the
               Compact], [PennDOT] shall treat reports of convictions
               from other states as being substantially similar to … the
               statutory provision that contains Pennsylvania’s
               provisions relative to impaired driving. Section 1586 also
               rejects any distinction between the levels of impairment
               between the out-of-state offense and Pennsylvania’s
               §3731[7].

                     Section 1586 clearly broadens the scope of offenses
               that Pennsylvania would consider to be ‘substantially
               similar’ to the offenses delineated in Article IV(a)(2).
               Under the terms of § 1586, an out-of-state conviction for
               any level of impaired driving is punishable in
               Pennsylvania. In contrast, the Compact, as interpreted by
               Petrovick [v. Department of Transportation, Bureau of
               Driver Licensing, 741 A.2d 1264 (Pa. 1999)], required a
               level of impairment to a degree which rendered the
               operator ‘incapable of safely driving’; impairment which
               did not reach this level was not punishable.

                      Additionally, Article I(b)(1) [of the Compact] states
               that the policy of each party state is to ‘[p]romote
               compliance with the laws, ordinances and administrative
               rules and regulations relating to the operation of motor
               vehicles by their operators in each of the jurisdictions
               where such operators drive motor vehicles.’ We think it
               evident that in enacting § 1586, the legislature sought to
               promote this policy by sanctioning those Pennsylvania-
               licensed drivers who violated the impairment laws of other
               party states, even if those other states’ offenses had lower
               thresholds of impairment than [Pennsylvania’s former
               DUI statute]. Thus, the fact that the New York offense
               permits conviction of a lower level of impairment than
               [Pennsylvania’s former DUI statute] does not preclude
               [the] [a]ppellant’s reciprocal license suspension. …

       7
         Former Section 3731 of the Vehicle Code, formerly 75 Pa. C.S. §3731, prohibited driving
under the influence of alcohol or intoxicating drugs to a degree which rendered the driver incapable
of safe driving. See Leuthe v. Dep’t of Transp., Bureau of Driver Licensing, 933 A.2d 165 (Pa.
Cmwlth. 2007). As set forth above, Pennsylvania’s current statute relating to driving under the
influence of alcohol or controlled substances is found at Section 3802 of the Vehicle Code, 75 Pa.
C.S. §3802.

                                                13
                      We turn to whether the Commonwealth Court
               properly ordered the suspension of [the] [a]ppellant’s
               license under § 1586. Given the broad scope of § 1586,
               we conclude that [the] [a]ppellant’s New York conviction
               can provide the basis for a reciprocal suspension of his
               driving privileges in Pennsylvania. The New York offense
               provides: ‘No person shall operate a motor vehicle while
               the person’s ability to operate such motor vehicle is
               impaired by the consumption of alcohol.’ N.Y. Veh. &
               Traf. Law. § 1192(1). Regardless of the level of [the]
               [a]ppellant’s impairment, PennDOT was justified in
               suspending [the] [a]ppellant’s license as the New York
               offense is to be deemed ‘substantially similar’ to the
               provisions of Article IV(a) [of the Compact] and
               [Pennsylvania’s former DUI statute].

Wroblewski, 809 A.2d at 251 (emphasis added).8


               In addition, while Licensee argues there was no proof that he was
intoxicated to a degree that rendered him incapable of safely driving a vehicle, see
Article IV(a)(2) of the Compact, it is clear that the legislature has determined that
driving after underage drinking to any extent, in and of itself, renders an individual
incapable of safely operating a vehicle. See N.J.S.A. §39:4-50.14.


               Based on the foregoing, we affirm.



       8
         Further, contrary to Licensee’s assertion, New Jersey’s DUI statute does, in fact, have a
general impairment provision. Indeed, that statute prohibits four types of conduct: “[(1)]
operat[ing] a motor vehicle while under the influence of intoxicating liquor, narcotic,
hallucinogenic or habit-producing drug, or [(2)] operat[ing] a motor vehicle with a blood alcohol
concentration of 0.08% or more by weight of alcohol in the defendant’s blood or [(3)] permit[ting]
another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-
producing drug to operate a motor vehicle owned by him or in his custody or control or [(4)]
permit[ting] another to operate a motor vehicle with a blood alcohol concentration of 0.08% or
more by weight of alcohol in the defendant’s blood ….” N.J.S.A. §39:4-50(a).

                                                14
ROBERT SIMPSON, Judge




 15
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyler Gerard Simpson,                 :
                        Appellant     :
                                      :
           v.                         :   No. 258 C.D. 2017
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
Bureau of Driver Licensing            :


                                    ORDER

           AND NOW, this 15th day of November, 2017, the order of the Court of
Common Pleas of Montgomery County is AFFIRMED.




                                     ROBERT SIMPSON, Judge
