[Note: Bruno entered a plea of nolo contendere in Georgia to the charge of driving under the influence of alcohol (DUI), with .08 percent blood alcohol content, a per se criminal offense in that state. This incident occurred prior to Alabama lowering the per se DUI level from .10% to .08%.]

In November 1993, the Alabama Department of Public Safety (DPS) notified Bruno that his license had been suspended for a period of 90 days. Driving with .08 percent blood alcohol content was not a per se criminal offense in Alabama at that time. The level of blood alcohol content required by § 32-5A-191(a)(1) to constitute per se criminal liability was .10 percent. Therefore, in Alabama, driving with a blood alcohol content of .08 percent, taken alone, is not grounds for suspension or revocation of a driver’s license. For a driver to be found guilty of DUI at a .08 percent blood alcohol content, there must be additional evidence showing that the driver was driving while “[u]nder the influence of alcohol.” §32-5A-191(a)(2) , Ala.Code 1975. There is no such evidence to show that Bruno was “[u]nder the influence” or intoxicated.

Furthermore, Bruno was led to believe that by pleading nolo contendere he was not admitting guilt, but was choosing to pay a fine levied by the court in lieu of contesting the charge. Indeed, the Georgia court that accepted his plea determined in its findings of fact that it was “in the best interest of justice” for Bruno to retain his driving privileges.

For the purposes of imposing sanctions in Alabama for conduct in another state, whether there has been a “conviction” is measured by the conduct constituting the offense, rather than the treatment of such conduct, or the sentence imposed, by the other state. The conduct constituting the offense is controlling. See, e.g., Thompson v. State, 525 So.2d 820 (Ala.1985) (felony conviction from another state will be considered a felony when imposing punishment in Alabama only if the conduct is also a felony under Alabama law). Because the conduct for which Bruno entered a plea of nolo contendere, “if committed in this state,” would not be grounds for suspension or revocation of the license under § 32-5A-195(e), we conclude that the trial court erred in affirming the Alabama Department of Public Safety’s suspension of Bruno’s license.

Thigpen, Judge, dissenting. The state of Alabama had the authority to suspend Bruno’s license for 90 days. The accepted nolo contendere plea was a conviction that could be used to suspend Bruno’s license. Rejects appellant’s argument that the suspension of his license violated principles of double jeopardy and constitutes as an impermissible second punishment, via a successive prosecution in Alabama for the Georgia offense. Furthermore, Bruno did not pursue an administrative hearing, pursuant to Ala.Code 1975, § 32-5A-195(l); instead, he sought relief by filing a petition in the circuit court. Pursuant to Ala.Code 1975, § 32-5A-195(q), one may petition directly to the circuit court for a de novo hearing to present proof regarding the suspension. Therefore, Bruno’s petition in circuit court was not an appeal from the Director’s suspension of his license, and the trial court was not called upon to review the Director’s action. I find that there was ample evidence before the trial court regarding the circumstances of Bruno’s conviction in Georgia. This evidence, including the level of his blood alcohol content which was below the then statutory presumption that he was under the influence, could still have sustained a conviction for driving under the influence, pursuant to Ala.Code 1975, § 32-5A-191(a)(2).

Crawley, Judge, dissenting. The trial court was correct in affirming the decision to suspend Bruno’s license. The Alabama Legislature has clearly expressed its intent to expand, rather than to constrict, the types of out-of-state DUI adjudications that can result in suspensions of Alabama licenses. For example, § 32-5A-195(i) authorizes DPS to treat a foreign nolo contendere plea to DUI as the “equivalent [of] a conviction,” even though a nolo contendere plea is not admissible for any other purpose under Alabama law. See Singleton v. State, 622 So. 2d 934, 935 (Ala. Crim. App. 1992), writ quashed, 622 So. 2d 935 (Ala. 1993) (“Alabama follows the minority rule, which states that ‘a conviction based upon a plea of nolo contendere is inadmissible in evidence in other proceedings.’”).

If our Legislature considers a foreign nolo contendere plea to DUI relevant to an Alabama resident’s fitness for driving – despite the fact that the plea is relevant for no other purpose under Alabama law – then it stands to reason that it would consider an Alabama resident’s proven disregard of another state’s drunk driving laws relevant to the resident’s fitness for driving here – despite the fact that our DUI laws might be less strict. The Legislature could reasonably conclude that a driver who evidences a disregard for one state’s DUI laws will display the same disregard for our own drunk driving laws.