J. Westbeld v. PennDOT, Bureau of Driver Licensing ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julie Westbeld, :
:
Appellant :
:
v. : No. 1252 C.D. 2020
: Submitted: December 30, 2022
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 22, 2023
Julie Westbeld (Licensee) appeals from the order of the Venango
County Court of Common Pleas (trial court) denying her statutory appeal, and
affirming the one-year suspension of her operating privilege imposed by the
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (DOT), pursuant to Section 3804(e)(2)(i) of the Vehicle Code.1 We
affirm.
1
75 Pa. C.S. §3804(e)(2)(i). In relevant part, Section 3804(e)(1)(i), (2)(i) and (iii) of the
Vehicle Code states:
(e) Suspension of operating privileges upon conviction.--
(Footnote continued on next page…)
On December 2, 2016, Licensee was accepted in the Accelerated
Rehabilitative Disposition (ARD) program in the trial court for her driving under the
influence (DUI) charge, in violation of Section 3802(c) of the Vehicle Code,2 on
(1) [DOT] shall suspend the operating privilege of an individual
under paragraph (2) upon receiving a certified record of the
individual’s conviction of or an adjudication of delinquency for:
(i) an offense under section 3802 . . . .
(2) Suspension under paragraph (1) shall be in accordance with the
following:
(i) Except as provided for in subparagraph (iii), 12
months for an ungraded misdemeanor . . . under this
chapter.
***
(iii) 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)(1)(i), (2)(i) and (iii). In turn, Section 3802(a)(1) provides:
(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.
75 Pa. C.S. §3802(a)(1). It is undisputed in this case that Licensee’s conviction for DUI triggering
the suspension was a violation of Section 3802(a)(1) as an ungraded misdemeanor. See
Supplemental Reproduced Record (SRR) at 7b; Section 3803(a)(1) of the Vehicle Code, 75
Pa. C.S. §3803(a)(1) (“An individual who violates section 3802(a) . . . and has no more than one
prior offense commits a misdemeanor for which the individual may be sentenced to a term of
imprisonment of not more than six months and to pay a fine under section 3804. . . .”).
2
75 Pa. C.S. §3802(c). Section 3802(c) states:
(Footnote continued on next page…)
2
March 30, 2016. Supplemental Reproduced Record (SRR) at 11b. Pursuant to
Section 3807(d)(2) of the Vehicle Code,3 DOT suspended Licensee’s operating
privilege for 30 days effective December 2, 2016. Id. at 9b-10b, 14b. On June 2,
2017, Licensee’s operating privilege was restored. Id. at 8b.
On July 17, 2020, Licensee was convicted of violating Section
3802(a)(1), as an ungraded misdemeanor, on October 26, 2019. SRR at 7b. By
official notice mailed on July 27, 2020, DOT imposed the instant one-year
suspension pursuant to Section 3804(e)(2)(i), effective August 31, 2020.
Reproduced Record (RR) at 1a-3a;4 SRR at 2b-6b. Licensee timely appealed the
suspension to the trial court.
On October 14, 2020, the trial court held a de novo hearing of
Licensee’s appeal. RR at 4a-11a. The trial court admitted into evidence without
objection DOT’s Exhibit C-1, containing certified documents of Licensee’s prior
participation in ARD, prior Section 3802(a)(1) conviction, and her driving record.
(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.
Id.
3
75 Pa. C.S. §3807(d)(2). Section 3807(d)(2) provides, in pertinent part: “As a condition
of participation in an [ARD] program, the court shall order the defendant’s license suspended . . .
[f]or 30 days if the defendant’s blood alcohol concentration at the time of testing was at least
0.10% but less than 0.16%.”
4
We will correct Licensee’s improper pagination of the Reproduced Record. See
Pa.R.A.P. 2173 (“[T]he reproduced record . . . shall be numbered separately in Arabic figures and
not in Roman numerals: thus 1, 2, 3, etc., followed in the reproduced record by a small a, thus 1a,
2a, 3a, etc. . . .”).
3
See RR at 5a-6a; SRR at 1b-16b. Licensee’s counsel did not offer any evidence;
rather, counsel offered legal argument that the Vehicle Code violated Licensee’s due
process rights, stating that he is “ask[ing] that the suspension not occur because
[Licensee] really just pled to a first offense DUI” and that “there’s no suspension
based off of that.” RR at 7a.
Ultimately, on November 10, 2020, the trial court issued the instant
order denying Licensee’s statutory appeal and affirming DOT’s one-year suspension
of her operating privilege. Licensee then filed this timely appeal.5
The sole claim that Licensee raises on appeal is that the trial court erred
in dismissing her appeal and affirming DOT’s one-year suspension under Section
5
As this Court has explained: “‘Our review [on appeal] is to determine whether the factual
findings of the trial court are supported by [substantial] evidence and whether the trial court
committed an error of law or abused its discretion.’” Ferguson v. Department of Transportation,
Bureau of Driver Licensing, 267 A.3d 628, 630 n.4 (Pa. Cmwlth. 2021), appeal granted, 280 A.3d
859 (Pa. 2022) (citation omitted). In addition:
“In a license suspension case, the only issues are whether the
licensee was in fact convicted, and whether []DOT has acted in
accordance with applicable law.” []DOT bears the initial burden to
establish a prima facie case that a record of conviction supports a
suspension. An essential part of satisfying this burden is the
production of an official record of the conviction supporting the
suspension. []DOT must also establish that it acted in accordance
with applicable law.
***
To overcome the rebuttable presumption that []he was convicted of
these offenses, [the l]icensee bore the burden of proving by clear and
convincing evidence that the record was erroneous. Clear and
convincing evidence is “evidence that is so clear and direct as to
permit the trier of fact to reach a clear conviction, without hesitancy,
as to the truth of the facts at issue.”
Id. at 633 (citations omitted).
4
3804(e)(2)(i) of the Vehicle Code because DOT improperly treated her previous
participation in the trial court’s ARD program as a “prior offense” to preclude the
application of the first offense, non-suspension provision in Section 3804(e)(2)(iii).
In support, Licensee relies upon Commonwealth v. Chichkin, 232 A.3d 959 (Pa.
Super. 2020),6 overruled by Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super.
2022), in arguing that the application of the enhancement provision in imposing the
instant license suspension is likewise unconstitutional in these civil proceedings.
However, in Ferguson v. Department of Transportation, Bureau of
Driver Licensing, 267 A.3d 628, 632 (Pa. Cmwlth. 2021), appeal granted, 280 A.3d
859 (Pa. 2022), this Court expressly rejected Licensee’s argument, explaining:
Because the Chichkin Court ruled that the portion of
Section 3806(a) of the Vehicle Code that defines a prior
acceptance of ARD in a DUI case as a “prior offense” is
unconstitutional for purposes of subjecting a defendant to
a mandatory minimum criminal sentence under Section
3804 of the Vehicle Code, Chichkin specifically applies to
Section 3804(a)-(d) of the Vehicle Code, i.e., the criminal
sentencing provisions. Section 3804(e) of the Vehicle
Code expressly refers to “[s]uspension of operating
privileges upon conviction,” i.e., the collateral civil
consequence thereof. 75 Pa. C.S. §3804(e); see Brewster[
v. Department of Transportation, 503 A.2d 497, 498 (Pa.
Cmwlth. 1986)]. Accordingly, because license
suspensions are civil proceedings, the Chichkin ruling
does not invalidate Section 3806(a) of the Vehicle Code
for civil license suspension purposes.
6
Section 3806(a)(1) of the Vehicle Code states, in relevant part, that “the term ‘prior
offense’ as used in this chapter shall mean any . . . acceptance of [ARD] . . . before the sentencing
on the present violation for . . . an offense under section 3802 . . . .” 75 Pa. C.S. §3806(a)(1). In
Chichkin, the court held that the criminal sentence enhancement provisions of Section 3806(a)
violated the defendant’s procedural and substantive due process rights. See Chichkin, 232 A.3d at
971 (“[W]e conclude the particular provision of [Section] 3806(a) which defines a prior acceptance
of ARD in a DUI case a ‘prior offense’ for DUI sentencing enhancement purposes, offends the
Due Process Clause and is therefore unconstitutional.”).
5
Moreover, and more importantly, the Superior Court has expressly
overruled its prior holding in Chichkin. See Moroz, 284 A.3d at 233 (“Accordingly,
we expressly overrule Chichkin. We now hold that the portion of Section 3806(a),
which equates prior acceptance of ARD to a prior conviction for purposes of
imposing a Section 3804 mandatory minimum sentence, passes constitutional
muster.”). Based on the foregoing, Chichkin does not provide a basis for reversing
the trial court’s order herein.7
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
7
See also Seelhorst v. Department of Transportation, Bureau of Driver Licensing (Pa.
Cmwlth., No. 73 C.D. 2021, filed November 7, 2022), slip op. at 6 (“[W]e reject [the l]icensee’s
claim that Chichkin provides a basis for reversing the trial court’s order in this matter, and affirm
that order based on the reasoning stated by this Court in Ferguson.”); Hazlett v. Department of
Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1007 C.D. 2020, filed September
30, 2022), slip op. at 4 (“[The licensee’s] argument that a driver’s acceptance of ARD for a DUI
offense cannot be treated as a prior offense for purposes of future DUI-related operating privilege
suspensions was recently rejected by this Court. See Ferguson, 267 A.3d at 632. Accordingly, we
follow our prior, precedential decision in Ferguson, reject [his] argument, and reverse the trial
court’s order.”); Owen v. Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth.,
No. 1268 C.D. 2020, filed September 30, 2022), slip op. at 11-12 (“Based on Ferguson, we agree
with DOT that Chichkin is not applicable to civil license suspension cases and, thus, that [the
l]icensee’s ARD does constitute a prior offense as defined by Section 3806(a) of the Vehicle Code.
Further, as in Ferguson, DOT met its prima facie burden of proving that [the l]icensee was subject
to a 12-month license suspension . . . . As [the l]icensee did not challenge DOT’s evidence, the
record supports DOT’s imposition of the 12-month license suspension in this case.”).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julie Westbeld, :
:
Appellant :
:
v. : No. 1252 C.D. 2020
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 22nd day of September, 2023, the order of the Venango
County Court of Common Pleas dated November 10, 2020, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge