J-A06036-24
2024 PA Super 93
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN KENNETH DOURLAIN :
:
Appellant : No. 1005 WDA 2023
Appeal from the Judgment of Sentence Entered August 4, 2023
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000072-2023
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.
OPINION BY BECK, J.: FILED: MAY 9, 2024
Brian Kenneth Dourlain (“Dourlain”) appeals from the judgment of
sentence entered by the Mercer County Court of Common Pleas (the “trial
court”) following his guilty plea to driving under the influence of alcohol or a
controlled substance (“DUI”) – highest rate of alcohol.1 On appeal, Dourlain
argues that the trial court erred in determining that his DUI conviction should
be treated as his third offense in ten years for grading and sentencing
purposes based on its treatment of his prior conviction in Ohio of physical
control of a vehicle while under the influence (“PCVUI”)2 as a prior offense
under the Pennsylvania DUI statute. Because we conclude that the trial court
wrongly determined that Ohio’s PCVUI offense is substantially similar to
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1 75 Pa.C.S. § 3802(c).
2 R.C. § 4511.194(B)(1).
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Pennsylvania’s offense of DUI, we vacate Dourlain’s judgment of sentence and
remand this matter to the trial court.
At the center of this appeal is section 3806 of Pennsylvania’s Vehicle
Code, which provides, in pertinent part:
(a) General rule.--Except as set forth in subsection (b), the term
“prior offense” as used in this chapter shall mean any conviction
for which judgment of sentence has been imposed, adjudication
of delinquency, juvenile consent decree, acceptance of
Accelerated Rehabilitative Disposition or other form of preliminary
disposition before the sentencing on the present violation for any
of the following:
(1) an offense under section 3802 (relating to driving under
influence of alcohol or controlled substance);
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense
under paragraph (1) or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph
(1), (2) or (3).
(b) Timing.--
(1) For purposes of sections 1553(d.2) (relating to
occupational limited license), 1556 (relating to ignition
interlock limited license), 3803 (relating to grading), 3804
(relating to penalties) and 3805 (relating to ignition
interlock), the prior offense must have occurred:
(i) within 10 years prior to the date of the offense for
which the defendant is being sentenced; or
(ii) on or after the date of the offense for which the
defendant is being sentenced.
75 Pa.C.S. § 3806(a), (b)(1) (emphasis added).
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The record in this case reflects that on October 25, 2018, Dourlain pled
guilty in Ohio to PCVUI pursuant to R.C. § 4511.194(B)(1). Subsequently, on
August 1, 2022, Dourlain pled guilty in Pennsylvania to DUI, 75 Pa.C.S.
§ 3802. In the underlying matter, on June 12, 2023, Dourlain once again pled
guilty to DUI. The trial court treated Dourlain’s conviction of DUI in this case
as his third offense in ten years for grading and sentencing purposes under
section 3806(a)(3) and (b)(1).
On August 4, 2023, the trial court sentenced Dourlain to one to two
years in prison followed by five years of probation. Dourlain timely filed a
post-sentence motion for modification of his sentence in which he asserted
that the trial court improperly graded his DUI conviction as his third offense
in ten years. Dourlain argued that the trial court should not have treated his
prior conviction in Ohio as a prior offense because the pertinent Ohio statute
is not substantially similar to Pennsylvania’s DUI law. The trial court denied
Dourlain’s post-sentence motion.
Dourlain timely appealed to this Court. Both the trial court and Dourlain
have complied with Pennsylvania Rule of Appellate Procedure 1925. Dourlain
presents the following issue for review:
Whether the trial court erred as a matter of law in determining
that [the DUI] offense for which [Dourlain] was sentenced on
August 4, 2023, was a third offense in ten years, because his prior
offense for [PCVUI], in violation of O.R.C. § 4511.194, was not
substantially similar to Pennsylvania’s [DUI] statute in 75
Pa.C.S.[] §3802(c), and therefore cannot be considered a prior
offense under 75 Pa.C.S.[] § 3806?
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Dourlain’s Brief at 9.
In support of his claim, Dourlain contends that Pennsylvania’s DUI
statute requires proof of elements that are absent from Ohio’s PCVUI statute.
Id. at 19-24. Specifically, Dourlain asserts that the Pennsylvania law requires
evidence that the intoxicated individual exercised control over the movement
of the vehicle. Id. at 20-23. In contrast, Dourlain maintains Ohio’s PCVUI
statute only requires the intoxicated individual to be sitting in the driver’s seat
of a vehicle with possession of the ignition key. Id. at 24. Therefore, Dourlain
asserts that Ohio’s PCVUI statute encompasses a broader range of conduct
than Pennsylvania’s DUI statute. Id. at 34-36; see also id. at 35 (asserting
that “[i]f there is no evidence that a person moved or caused the vehicle to
move, or even created a condition where there was potential to move the
vehicle, the person cannot be convicted for a DUI in Pennsylvania but may be
convicted of physical control in Ohio”) (emphasis omitted). Consequently,
Dourlain argues that the trial court wrongly concluded that his conviction in
Ohio of PCVUI constituted a prior offense under section 3806 and that his
instant conviction of DUI was his third DUI offense in ten years for grading
and sentencing purposes. See id. at 17-36.
In response, the Commonwealth argues that section 3806 does not
require Ohio’s PCVUI statute to be identical to Pennsylvania’s DUI statute to
constitute a prior offense, but rather the two provisions must only contain
substantially similar elements. Commonwealth’s Brief at 14. Without citation
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to supporting authority, the Commonwealth contends that Ohio’s PCVUI
statute is substantially similar to Pennsylvania’s DUI statute because they
both prohibit an individual from sitting in the driver’s seat of a vehicle with
possession of an ignition device while intoxicated. Id. at 14-15.
In rejecting Dourlain’s claim, the trial court likewise found (also without
supporting authority) that the Pennsylvania DUI statute prohibits an individual
from sitting in the vehicle with the keys while intoxicated, which is precisely
what the Ohio PCVUI statue precludes. Trial Court Opinion, 9/21/2023, at 6
(unnumbered). Accordingly, the trial court concluded that the statutes are
substantially similar, finding them “almost identical in language and function.”
Id.
We begin our analysis by acknowledging that “a claim that the court
improperly graded an offense for sentencing purposes implicates the legality
of a sentence.” Commonwealth v. Seladones, 305 A.3d 83, 85 (Pa. Super.
2023). For issues challenging the legality of a sentence, “[o]ur standard of
review is de novo, and the scope of our review is plenary.” Commonwealth
v. Hoffman,
198 A.3d 1112, 1123 (Pa. Super. 2018).
The issue raised by Dourlain is a question of the proper interpretation
of a statutory enactment. When an issue of statutory interpretation is before
this Court, the Statutory Construction Act3 guides our analysis.
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3 1 Pa.C.S. §§ 1501-1991.
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Commonwealth v. Gamby, 283 A.3d 298, 306 (Pa. 2022). The paramount
principle of the Statutory Construction Act is that “[t]he object of all
interpretation and construction of statutes is to ascertain and effectuate the
intention of the General Assembly.” 1 Pa.C.S. § 1921(a).
“The General Assembly’s intent is best expressed through the plain
language of the statute.” Commonwealth v. Brown, 981 A.2d 893, 897
(Pa. 2009). “When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S. § 1921(b). “Therefore, when the terms of a
statute are clear and unambiguous, they will be given effect consistent with
their plain and common meaning.” Gamby, 283 A.3d at 306. Courts must
interpret and apply the statute as it is written; “we should not insert words
into a statute that are plainly not there.” Commonwealth v. Green,
291
A.3d 317, 327 (Pa. 2023) (citation and brackets omitted).
“We also presume that the General Assembly does not intend a result
that is absurd, impossible of execution or unreasonable, and that the General
Assembly intends the entire statute to be effective and certain.” Id.
(quotation marks and citation omitted). “To that end, courts must read and
evaluate each section of a statute in the context of, and with reference to, the
other sections of the statute[.]” Commonwealth v. Gurung,
239 A.3d 187,
191-92 (Pa. Super. 2020) (citation, brackets, and quotation marks omitted).
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We presume “that the legislature placed every word, sentence[,] and provision
in the statute for some purpose[.]” Id. at 192 (citation omitted).
Chapter 38 of the Vehicle Code governs the crime of DUI in
Pennsylvania. See 75 Pa.C.S. §§ 3801-3817. In this case, Dourlain pled
guilty to DUI – highest rated alcohol under 75 Pa.C.S. § 3802(c). Pursuant to
75 Pa.C.S. § 3803(b)(4.1)(i), an individual who violates section 3802(c), and
has two prior DUI offenses, commits a third-degree felony. Id.
§ 3803(b)(4.1)(i).
There is no dispute that in addition to his guilty plea in this case,
Dourlain has at least one prior conviction of DUI in Pennsylvania, and that the
prior conviction in Pennsylvania did constitute a “prior offense” pursuant to
section 3806(a)(1). Rather, the parties’ disagreement in this case arises from
whether Dourlain’s prior conviction in Ohio of PCVUI constitutes a “prior
offense” under section 3806(a)(3). Accordingly, we must determine whether
Ohio’s PCVUI statute is substantially similar to Pennsylvania’s DUI statute.
See 75 Pa.C.S. § 3806(a)(3).
When analyzing whether two statutory provisions are substantially
similar, the differences or similarities in the language of the provisions is not
the salient factor. Scott v. Commonwealth, Dep’t of Transp., Bureau of
Driver Licensing, 790 A.2d 291, 298 (Pa. 2002). Rather, we must examine
the language defining the scope of conduct that each provision prohibits.
Id.
Pennsylvania’s DUI statute provides, in pertinent part:
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(a) General impairment.--
(1) An individual 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 individual is
rendered incapable of safely driving, operating or being in
actual physical control of the movement of the vehicle.
(2) An individual 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 individual’s blood or breath is at least
0.08% but less than 0.10% within two hours after the
individual has driven, operated or been in actual physical
control of the movement of the vehicle.
(b) High rate of alcohol.--An individual 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 individual’s blood or breath is at least 0.10%
but less than 0.16% within two hours after the individual has
driven, operated or been in actual physical control of the
movement of the vehicle.
(c) Highest rate of alcohol.--An individual 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 individual’s blood or breath is 0.16%
or higher within two hours after the individual has driven,
operated or been in actual physical control of the movement of
the vehicle.
(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in the
act of April 14, 1972 (P.L. 233, No. 64),1 known as
The Controlled Substance, Drug, Device and Cosmetic
Act;
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(ii) Schedule II or Schedule III controlled substance,
as defined in The Controlled Substance, Drug, Device
and Cosmetic Act, which has not been medically
prescribed for the individual; or
(iii) metabolite of a substance under subparagraph (i)
or (ii).
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be in actual
physical control of the movement of the vehicle.
(3) The individual is under the combined influence of alcohol
and a drug or combination of drugs to a degree which
impairs the individual’s ability to safely drive, operate or be
in actual physical control of the movement of the vehicle.
(4) The individual is under the influence of a solvent or
noxious substance in violation of 18 Pa.C.S. § 7303 (relating
to sale or illegal use of certain solvents and noxious
substances).
75 Pa.C.S. § 3802(a)-(d).4 In short, an essential element of the crime of DUI
in Pennsylvania requires that the person must “drive, operate or be in actual
physical control of the movement of a vehicle.” Id.
The provision of Ohio law that Dourlain was previously convicted
provides: “No person shall be in physical control of a vehicle … if, at the time
of the physical control … [t]he person is under the influence of alcohol, a drug
of abuse, or a combination of them.” R.C. § 4511.194(B)(1).
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4 We note that neither of the parties nor the trial court contends that the
PCVUI law is substantially similar to Pennsylvania’s prior DUI statute. See 75
Pa.C.S. § 3731 (repealed). Therefore, an analysis here of that provision in
relation to section 3806(a)(3) is unnecessary.
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Reading the two statutes together, the clear and unambiguous language
of Pennsylvania’s DUI statute plainly prohibits driving, operating, or being in
“actual physical control” of the movement of a vehicle while intoxicated,
whereas the Ohio PCVUI statute only prohibits a person from being in “physical
control” of a vehicle while intoxicated—it says nothing regarding driving or
operating the vehicle. Compare 75 Pa.C.S. § 3802(a), with R.C.
§ 4511.194(B)(1). Thus, to determine if the statutes are substantially similar,
we must examine how Pennsylvania and Ohio define the phrase “physical
control.”
This Court has explained that “physical control” of a vehicle may be
established based on the totality of the circumstances. Commonwealth v.
Fallon, 275 A.3d 1099, 1105 (Pa. Super. 2022); Commonwealth v.
Johnson,
833 A.2d 260, 266 (Pa. Super. 2003).5 But to have such physical
control of a vehicle, Pennsylvania law requires that the defendant have “real
(not hypothetical), bodily restraining or directing influence over, or domination
and regulation of, its movements or machinery.” Commonwealth v. Kloch,
327 A.2d 375, 383 (Pa. Super. 1974). “It is not necessary that the vehicle
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5 We note that Johnson involved the prior version of Pennsylvania’s DUI
statute, 75 Pa.C.S. § 3731 (repealed). Section 3731(a)(1) provided, in
pertinent part, as follows: “A person shall not drive, operate or be in actual
physical control of the movement of a vehicle … while under the influence of
alcohol to a degree which renders the person incapable of safe driving.”
Because the operative language of section 3731(a)(1) is nearly identical to
the operative language of section 3802(a), we find cases applying the repealed
version of Pennsylvania’s DUI statute instructive.
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itself must be in motion but [] it is sufficient if the operator is in actual physical
control of either the machinery of the motor vehicle or of the management of
the movement of the vehicle itself.” Johnson, 833 A.2d at 266 (citation and
quotation marks omitted). Courts review a combination of factors to
determine whether a person exhibited “actual physical control” of a vehicle,
including, “the motor running, the location of the vehicle, and additional
evidence showing that the defendant had driven the vehicle.” Fallon,
275
A.3d at 1105 (quotation marks and citations omitted).
Of relevance to the case at bar, this Court has long held that
circumstantial evidence sufficient to establish physical control of a vehicle
exists where the police encountered a stopped or parked vehicle with the
engine running or where the evidence clearly showed the vehicle had been
driven during the time when the driver was impaired. See, e.g.,
Commonwealth v. Bathurst, 288 A.3d 492, 502 (Pa. Super. 2023)
(concluding driver was in physical control of the vehicle where the police
encountered the vehicle pulled off on the side of a highway with the engine
running and the stereo active); Commonwealth v. Toland,
995 A.2d 1242,
1246-47 (Pa. Super. 2010) (holding that the driver was in physical control of
the vehicle where the police found the defendant asleep in his parked car with
the engine running and headlights illuminated); Commonwealth v.
Williams,
871 A.2d 254, 260-61 (Pa. Super. 2005) (finding that the
Commonwealth had established physical control where police found the
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defendant parked outside a restaurant at 4:00 a.m., asleep in the driver’s
seat, with the radio and headlights on and the engine of the vehicle running);
Commonwealth v. Leib, 588 A.2d 922, 926 (Pa. Super. 1991) (holding that
the driver was in physical control of the vehicle where the police found the
defendant asleep in his vehicle, which was stopped in the middle of the road,
the engine was not running, but the keys were in the ignition). The prevailing
theme in each of these cases is that physical control was established by some
indicia that the defendant could immediately exercise or had already exercised
control over the movement of the vehicle.
Importantly, in Commonwealth v. Price, 610 A.2d 488 (Pa. Super.
1992), the case Dourlain relies on to support his claim, this Court found
insufficient evidence of physical control of a vehicle where the police
discovered the defendant intoxicated, sitting in the driver’s seat of a vehicle
parked along the side of the road, holding the vehicle’s keys, but the engine
was not running.
Id. at 490-91. At trial, the defendant introduced evidence
that his girlfriend had been driving the vehicle when it hit a pothole, which
resulted in a flat tire and a broken wheel rim, rendering the vehicle inoperable,
and that she left the defendant in the vehicle while she sought assistance.
Id.
at 489-90. We determined that a review of the authority on DUI cases
revealed that, at a minimum, there must be evidence that the intoxicated
individual at some point had the engine “started and running before a finding
of actual physical control can be made.”
Id. at 490. We further explained:
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There are myriad reasons to leave keys to a stranded car with a
person who is waiting with it while another seeks assistance.
Obviously, if the person waiting should accidently lock himself or
herself out of the car, the key would provide access. The key may
be necessary to open windows on a warm evening or to allow for
heat on colder evenings. The key also provides access to the radio
and the lights, both interior and exterior, without draining a car’s
battery. Merely possessing keys while seated in a parked
car is not adequate to warrant a finding of actual physical
control sufficient to sustain a conviction for driving under
the influence. There must be some indicia that the intoxicated
person, who was seated in the car, had actual physical control of
the vehicle.
Id. (emphasis added). Thus, our Court concluded evidence that an individual
sitting in the driver’s seat of a vehicle with possession of the vehicle’s keys is,
by itself, insufficient to establish that he or she was in “physical control” of the
vehicle under Pennsylvania law. See
id.
In contrast, Ohio’s statute specifically and plainly defines “physical
control” as “being in the driver’s position of the front seat of a vehicle … and
having possession of the vehicle’s … ignition key or other ignition device.”
R.C. § 4511.194(A)(2). Noticeably absent from Ohio’s definition of physical
control is any requirement that there be evidence that the individual exercised
or could imminently exercise any control over the movement of the vehicle.
See id. In fact, in Ohio, physical control is established merely by the
individual occupying the driver’s seat of the vehicle with possession of the
ignition keys—circumstances that the Price Court expressly held was
insufficient to convict a person of DUI in Pennsylvania. Id.
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We further observe that Ohio’s operation of a motor vehicle while
intoxicated (“OVI”) statute states that “[n]o person shall operate any vehicle
… within this state, if, at the time of the operation, … [t]he person is under
the influence of alcohol, a drug of abuse, or a combination of them.” R.C.
§ 4511.19(A)(1)(a). Importantly, the Ohio General Assembly defined the
term “operate” as “to cause or have caused movement of a vehicle[.]” Id.
§ 4511.01(HHH). Unlike its PCVUI statute, Ohio’s OVI law specifically requires
an individual under the influence of drugs and/or alcohol to have moved the
vehicle. Compare id. § 4511.19(A)(1)(a), with id. § 4511.194(B)(1).
Indeed, state courts in Ohio have clearly distinguished the conduct prohibited
by the OVI and PCVUI statutes on this basis. See, e.g., State v. Schultz,
2008 WL 4078447 at *4 (Court of Appeals of Ohio, Eighth District, Cuyahoga
County Sept. 4, 2008) (unpublished decision).6 In Schultz, the court
explained:
[T]he difference between an OVI and a physical control violation,
besides the penalties, is that an OVI requires actual movement of
the vehicle, whereas a physical control violation does not. [I]f
there is no evidence that the person moved or caused the vehicle
to move, that person cannot be convicted of OVI, but may be
convicted of being in physical control of a vehicle while under the
influence. Still, a person who is found passed out in his vehicle
on the side of the highway may be convicted of an OVI because a
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6 The Court of Appeals for Ohio permits citation to, and reliance upon, its
unpublished cases filed after May 1, 2002. Specifically, the Ohio Supreme
Court Rules for the Reporting of Opinions states that “[a]ll opinions of the
courts of appeals issued after May 1, 2002 may be cited as legal authority and
weighted as deemed appropriate by the courts without regard to whether the
opinion was published or in what form it was published.” Rep.Op.R. 3.4.
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jury could infer that the vehicle was moved to that location.
However, if a person decides to “sleep it off” in the parking lot of
the bar where the person drank, the person could be convicted
only of a physical control violation, unless there is evidence of
movement.
Id.
Based on the foregoing, we hold that Ohio’s PCVUI statute is not
substantially similar to Pennsylvania’s DUI statute, as the scope of the conduct
prohibited by Ohio’s PCVUI statute differs from that which is prohibited by
Pennsylvania’s DUI statute. See 75 Pa.C.S. § 3802; R.C. § 4511.194(B); see
also Scott, 790 A.2d at 298. Namely, Pennsylvania’s DUI statute requires
evidence that the intoxicated individual exercised control over the movement
of the vehicle whereas Ohio’s PCVUI statute only requires the intoxicated
individual to be in the driver’s seat of the vehicle with possession of the ignition
keys—behavior this Court has expressly held to be insufficient to establish DUI
under Pennsylvania law. Compare 75 Pa.C.S. § 3802, with R.C.
§ 4511.194(B); see also Price,
610 A.2d at 490. In short, Ohio’s PCVUI
statute punishes conduct that would not be a crime under Pennsylvania’s DUI
statute. See Price,
610 A.2d at 490.7
We therefore conclude that the trial court erred in determining that
Ohio’s offense of PCVUI is substantially similar to Pennsylvania’s offense of
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7 Notably, our Commonwealth Court has held that Ohio’s OVI statute, R.C.
§ 4511.19, is substantially similar to Pennsylvania’s DUI statute. Smega v.
Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 727 A.2d
154, 157 (Pa. Cmwlth. 1999).
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DUI. Consequently, we likewise conclude that the trial court erred in treating
Dourlain’s prior conviction of PCVUI as a prior offense under Pennsylvania’s
DUI statute and in grading Dourlain’s instant conviction of DUI as his third
offense in ten years. Accordingly, we vacate Dourlain’s judgment of sentence
and remand this matter to the trial court for proceedings consistent with this
decision.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
FILED: 5/9/2024
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