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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edmund F. McKeown,
:

Appellant :

:

v.

: No. 1015 C.D. 2004

:
Commonwealth of Pennsylvania,
:
Department of Transportation,
:
Bureau of Driver Licensing
:

ORDER

AND NOW, this 4th day of March, 2005, it is ORDERED that the
above-captioned Memorandum Opinion, filed December 7, 2004, shall be
designated OPINION and shall be REPORTED.

_____________________________

MARY HANNAH LEAVITT, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edmund F. McKeown,
:

Appellant :

:

v.

: No. 1015 C.D. 2004

: Submitted: September 3, 2004
Commonwealth of Pennsylvania,
:
Department of Transportation,
:
Bureau of Driver Licensing
:

BEFORE: HONORABLE
DAN
PELLEGRINI, Judge
HONORABLE
MARY
HANNAH LEAVITT, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION
BY JUDGE LEAVITT

FILED: December 7, 2004

Edmund F. McKeown (Licensee) appeals from an order of the Court
of Common Pleas of Monroe County (trial court) denying his statutory appeal of a
one-year suspension of his driver's license. The Pennsylvania Department of
Transportation, Bureau of Driver Licensing (Department) suspended Licensee's
operating privileges after his conviction of violating the New Jersey statute
prohibiting driving while intoxicated (DWI).1 It was Licensee's first offense. The
license suspension was imposed in accordance with 75 Pa. C.S. §§1532 (b)(3)2 and

1 N.J.S.A. 39:4-50(a).
2 75 Pa. C.S. §1532(b)(3) provides in pertinent part:
(b) Suspension.

2

1581, Article IV.3 For the reasons set forth herein, we affirm.

(3) The department shall suspend the operating privilege of any driver for
12 months upon receiving a certified record of the driver's conviction of
section 3733 (relating to fleeing or attempting to elude police officer) or a
substantially similar offense reported to the department under Article III of
section 1581 (relating to Driver's License Compact), or an adjudication of
delinquency based on section 3733.
3 75 Pa. C.S. §1581, Article IV provides:
Effect of Conviction
(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, pursuant to Article III of this
compact, as it would if such conduct had occurred in the home state in the
case of convictions for:
(1)
manslaughter or negligent homicide resulting from the
operation of a motor vehicle;
(2)
driving a motor vehicle while under the influence of
intoxicating liquor or a narcotic drug or under the influence
of any other drug to a degree which renders the driver
incapable of safely driving a motor vehicle;
(3)
any felony in the commission of which a motor vehicle is
used; or
(4)
failure to stop and render aid in the event of a motor vehicle
accident resulting in the death or personal injury of another.
(b)
As to other convictions, reported pursuant to Article III, the licensing
authority in the home state shall give such effect to the conduct as is
provided by the laws of the home state.
(c)
If the laws of a party state do not provide for offenses or violations
denominated or described in precisely the words employed in subdivision
(a) of this article, such party state shall construe the denominations and
descriptions appearing in subdivision (a) of this article as being applicable
to and identifying those offenses or violations of a substantially similar
nature and the laws of such party state shall contain such provisions as
may be necessary to ensure that full force and effect is given to this article.

3

On January 9, 2003, Licensee was charged with DWI in the State of
New Jersey, and he was convicted on July 9, 2003. New Jersey is a party to the
Driver License Compact of 1961. See N.J.S.A. §§39:5D-1 - 39:5D-3. Pursuant to
Article III of the Compact, the New Jersey Division of Motor Vehicles reported
Licensee's conviction to the Department. On November 21, 2003, the Department
notified Licensee that his operating privilege was suspended for one year, as
required by 75 Pa.C.S. §§1532(b)(3) and 1581, Article IV. On December 19,
2003, Licensee filed a timely statutory appeal of that suspension.
At the de novo hearing before the trial court on March 19, 2004,
Licensee argued that his license suspension violated equal protection. The Act of
September 30, 2003, P.L. 120, No. 24 (Act 2003-24),4 reduced the civil sanction
for a first time DWI conviction; it does not require the Department to impose a
one-year suspension of driving privileges as a result of this conviction.5 Licensee
contended that it would violate equal protection were his license to be suspended
simply because his conviction occurred before the effective date of the Act 2003-
24. The trial court concluded that
the amendments to 75 Pa. C.S.A. §3804, effective February 1,
2004, have no applicability to a New Jersey conviction

4 Act 2003-24 amended Titles 18 (Crimes and Offenses, 42 (Judiciary and Judicial Procedure)
and 75 (Vehicles) of the Pennsylvania Consolidated Statutes. It related to such matters as the
definition of impairment due to alcohol or controlled substances; the maintenance of Department
records; and investigation by police officers. Section 16 of Act 2003-24 is titled Driving After
Imbibing Alcohol or Utilizing Drugs, 75 Pa. C.S. §§3801-3817.
5 75 Pa. C.S. §3804(e)(2)(iii) provides:
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 offenses.

4

occurring on July 9, 2003, nor a Notice of Suspension dated
November 21, 2003, and ... that the Commonwealth has met
the due process requirements articulated by our Supreme Court
in Harrington v. Commonwealth of Pennsylvania, Department
of Transportation, 763 A.2d 386 (2000).
Order of April 15, 2004. The trial court dismissed Licensee's appeal, and Licensee
appealed to this Court.
On appeal,6 Licensee raises one issue. Licensee asserts that he has
been deprived of the equal protection of the laws guaranteed by the U.S. and
Pennsylvania Constitutions. U.S. Const. amend. XIV; Pa. Const., Art. 1, §§1, 26.
He argues that Act 2003-24 has established disparate treatment of similarly
situated persons as of its effective date of February 1, 2004. He explains that those
convicted of an out-of-state DWI before the effective date of Act 2003-24 are
subject to a license suspension, but those convicted of the same offense after that
date are not so burdened. To highlight his claim of disparate treatment, Licensee
offers the following hypothetical: Assume two Pennsylvania drivers are arrested
for a first time DWI offense on the same day, prior to the effective date of Act
2003-04. Driver No. 1 is convicted on January 31, 2004, and his license is
suspended; Driver No. 2 is convicted on February 1, 2004, and he keeps his
license. Indeed, Licensee postulates that a driver convicted of a DWI prior to

6 The standard of review is limited to whether the trial court's findings of fact are supported by
competent evidence and whether the trial court committed an error of law or an abuse of
discretion. Touring v. Department of Transportation, Bureau of Driver Licensing, 712 A.2d 349,
350 n.3 (Pa. Cmwlth. 1998). The scope of review on issues of law is plenary. Department of
Transportation, Bureau of Driver Licensing v. McCafferty, 758 A.2d 1155, 1158 (Pa. Cmwlth.
2000).

5

February 1, 2004, could withdraw his guilty plea and enter a new plea after
February 1 to "reap the benefits of the new law." Licensee's Brief at 11.
The Department counters that Licensee misreprehends the change in
the law. The General Assembly included a number of "savings provisions" that
dealt with violations of statutory provisions occurring prior to the February 1,
2004, the effective date of Chapter 38. Section 21 of Act 2003-24 provides as
follows:
(1) The repeal of 18 Pa.C.S. §7513 shall not affect offenses
committed prior to February 1, 2004.
(2) The repeal of 18 Pa.C.S. §7514 and 75 Pa. C.S. §3731
shall not affect offenses committed prior to February 1,
2004, or civil and administrative penalties imposed as a
result of those offenses.
(3) An individual sentenced under 18 Pa.C.S. §7514 or 75
Pa. C.S. §3731 shall be subject to administrative and civil
sanctions in effect on January 31, 2004.
(4)
An individual sentenced under 75 Pa.C.S. Ch. 38 shall be
subject to administrative and civil sanctions under this
act.
(5) The following apply to offenses committed before
February 1, 2004:
(i)
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.
(ii) Subparagraph (i) does not apply if a
provision added or amended by this act
specifies application to an offense

6

committed before February 1, 2004, or to
any criminal, civil or administrative penalty
assessed as a result of that offense.
(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.
(B) The amendment of 75 Pa. C.S.
§1516(c) and (d).
(C) The amendment of 75 Pa. C.S.
§1534(b).
(D) The amendment of 75 Pa. C.S.
§1547(d) in section 9.1 of this
act.
(E) The amendment of 75 Pa. C.S.
§3731(a)(4)(i) and (a.1)(1)(i) in
section 13 of this act.
(emphasis added). Under Section 21, the date of conviction is irrelevant; rather, it
is the date the offense was committed that determines the applicability of the new
reduced sanction for first time DWI offenses. The civil and criminal sanctions for
offenses committed prior to February 1, 2004, survive after February 1, 2004.
Licensee has a heavy burden to show that Act 2003-24 "clearly,
palpably and plainly" violates the constitution. Commonwealth v. Sutley, 474 Pa.
256, 260-61, 378 A.2d 780, 782 (1977). As has been explained by our Supreme
Court,
There is, of course, a presumption of constitutionality attaching
to any lawfully enacted legislation. Should the constitutionality

7

of such legislation be challenged, the challenger must meet the
burden of rebutting the presumption of constitutionality by a
clear, palpable, and plain demonstration that the statute violated
a constitutional provision.
James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 142,
477 A.2d 1302, 1304 (1984).
The starting point for an equal protection challenge is whether the
State has created a classification for the unequal distribution of benefits or burdens.
Commonwealth v. Parker White Metal Co., 512 Pa. 74, 84, 515 A.2d 1358, 1363
(1986). If there is no unequal distribution in the statute, then equal protection is
not implicated. Even assuming that Act 2003-24 creates disparate burdens,
however, the statute does not affect a fundamental right. Driving is a privilege,
and even Licensee concedes that such legislation must be analyzed under the
rational relationship test. Plowman v. Department of Transportation, Bureau of
Driver Licensing, 535 Pa. 314, 635 A.2d 124 (1993). The rational relationship test
is a two-step process. The first step is to consider whether the challenged statute
seeks to promote any legitimate state interest; the second step is to determine
whether the statute is reasonably related to the articulated state interest. Plowman,
535 Pa. at 319, 635 A.2d at 126-127. As long as the General Assembly has acted
neither arbitrarily nor capriciously, the rational relationship is satisfied. Id. at 319,
635 A.2d at 127.
Licensee concedes the first step in the equal protection analysis. He
admits that Pennsylvania has a legitimate interest in "punishing drunk drivers."
However, Licensee insists that the application of the amended statute only to those
convicted of a DWI after February 1, 2004, leads to the "irrational results" of

8

"treating people in the same class who share the same offense date completely
differently." Licensee's Brief at 10. There are several flaws to this argument.
First, Licensee argues from a false premise. He asserts that the
treatment of licensed drivers differs depending upon when the licensee was first
convicted of DWI. In fact, the reduction in the sanction for a first-time offense
depends upon when the violation occurred.7 As explained above, the date of
conviction is irrelevant. All drivers charged prior to February 1, 2004, will be
treated alike, regardless of the date of their respective convictions. Therefore,
there is no disparate treatment, and an equal protection claim fails in the absence of
disparate treatment. Department of Transportation v. McCafferty, 758 A.2d 1155,
1162 (Pa. Cmwlth. 2000).
However, if we understand the classification to mean those licensees
who commit a DWI offense before February 1, 2004, and those who commit a
DWI offense after February 1, 2004, Licensee's equal protection claim still fails.
The fact that the General Assembly made a policy choice to decrease the civil
sanctions imposed for first-time offenders who violate the lowest tier of the new
three-tiered DUI offenses on or after February 1, 2004, does not implicate equal
protection. Cf. Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. Cmwlth.
2003) (equal protection did not entitle petitioner to a reduced penalty when the

7 Licensee is, in fact, simply advocating a retroactive application of the penalty provisions of the
statutory amendments to permit DWI first offenders to avoid license suspension. The Rules of
Statutory Construction include a presumption against retroactive effect, unless "clearly and
manifestly so intended by the General Assembly." 1 Pa. C.S. §1926. The Legislature has made
it abundantly clear within the savings provisions of the amendments to the Vehicle Code that it
does not intend a retroactive application of the penalty provisions.

9

severity of the crime for which petitioner was convicted was changed after his
conviction).
Licensee committed his New Jersey DWI offense more than a year
before the effective date of the amendments, and he was convicted for that offense
before the statutory change was enacted, let alone effective. Licensee was treated
the same as any other Pennsylvania-licensed driver who committed his first offense
prior to February 1, 2004. If Licensee were correct in his understanding of the
Equal Protection Clause, the legislature could never reduce, or raise, penalties in a
statutory scheme.8
Under the provisions of Article IV(a)(2) of the Driver's License
Compact, 75 Pa.C.S. §1581 (Compact), Licensee's January 9, 2003, New Jersey
DWI offense had to be treated as if that offense was committed in Pennsylvania.
Wroblewski v. Department of Transportation, Bureau of Driver Licensing, 570 Pa.
249, 253, 809 A.2d 247, 250 (2002). At the time Licensee violated the New Jersey
DWI statute, Licensee's New Jersey conviction was for an offense to be
substantially similar to Article IV(a)(2) of the Compact and to 75 Pa. C.S.
§3731(a). Scott v. Department of Transportation, Bureau of Driver Licensing, 567
Pa. 631, 638, 790 A.2d 291, 295 (2002). Thus, Licensee's conviction on July 9,
2003, was to be treated as if it were a conviction for violating the 75 Pa. C.S.

8 Further, the wisdom of the legislature's decision to revisit the sanctions for a DUI offense is
beyond our purview. As observed by the Pennsylvania Supreme Court,
Where the statutory scheme is clear in its meaning and effect ... judicial
speculation regarding the harshness, consistency, or social desirability of the
policy underlying it is not warranted.
Commonwealth v. Bursick, 526 Pa. 6, 16, 584 A.2d 291, 296 (1990).

10

§3731(a). Petrovick v. Department of Transportation, Bureau of Driver Licensing,
559 Pa. 614, 621-22, 741 A.2d 1264, 1268 (1999).
Accordingly, we affirm the decision of the trial court.

_____________________________

MARY HANNAH LEAVITT, Judge

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edmund F. McKeown,
:

Appellant :

:

v.

: No. 1015 C.D. 2004

:
Commonwealth of Pennsylvania,
:
Department of Transportation,
:
Bureau of Driver Licensing
:

ORDER

AND
NOW,
this
7th day of December, 2004, the order of the Court of
Common Pleas of Monroe County dated April 14, 2004 in the above-captioned
matter is hereby affirmed.

_____________________________

MARY HANNAH LEAVITT, Judge

12