H.S. Seelhorst v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Holly Sara Seelhorst, :
:
Appellant :
:
v. : No. 73 C.D. 2021
: Submitted: September 16, 2022
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 7, 2022

Holly Sara Seelhorst (Licensee) appeals the order of the Cumberland
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.--

(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:
(Footnote continued on next page…)
 On November 16, 2016, Licensee was accepted in the Accelerated
Rehabilitative Disposition program in the trial court for her violation of Section
3802(c) of the Vehicle Code2 on March 30, 2016. Supplemental Reproduced Record

(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)(2) provides:

(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.

75 Pa. C.S. §3802(a)(2). It is undisputed in this case that Licensee’s conviction triggering the
suspension was a violation of Section 3802(a)(2) as an ungraded misdemeanor. See SRR at 7;
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:

(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
(Footnote continued on next page…)
2
(SRR) at 12. Pursuant to Section 3807(d)(2) of the Vehicle Code,3 DOT suspended
Licensee’s operating privilege for 30 days effective November 16, 2016. SRR at
10-11, 12, 16. On December 28, 2016, Licensee’s operating privilege was restored.
Id.
On June 3, 2020, Licensee was convicted of violating Section
3802(a)(2), again as an ungraded misdemeanor, on October 26, 2019. SRR at 7-8.
By official notice mailed on June 11, 2020, DOT imposed the instant one-year
suspension pursuant to Section 3804(e)(2)(i), effective July 16, 2020. SRR at 2-6.
Licensee timely appealed the suspension to the trial court.
On November 4, 2020, the trial court held a de novo hearing of
Licensee’s appeal. Reproduced Record (RR) at 1-6. 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)(2) conviction, and her
driving record. See RR at 3; SRR at 1-18. Licensee’s counsel did not offer any
evidence, stating that he “will reserve anything else in a separate memo,” RR at 4,
relating to her claim that DOT’s imposition of the one-year suspension was invalid
under the Superior Court’s opinion in Commonwealth v. Chichkin, 232 A.2d 959
(Pa. Super. 2020).4

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.

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
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
(Footnote continued on next page…)
3
 Ultimately, on December 30, 2020, the trial court issued the instant
order denying Licensee’s statutory appeal and affirming DOT’s one-year suspension
of her operating privilege. RR at 11. 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

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 [driving under the influence (DUI)] case a ‘prior offense’ for DUI
sentencing enhancement purposes, offends the Due Process Clause and is therefore
unconstitutional.”).

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 Chichkin 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, this Court expressly rejected Licensee’s
argument. Indeed, as this Court explained:

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.
Ferguson, 267 A.3d at 632.
Moreover, and more importantly, the Superior Court has recently
expressly overruled its prior holding in Chichkin. See Commonwealth v. Moroz, ___
A.3d ___, ___ (Pa. Super., No. 282 MDA 2021, filed October 4, 2022), slip op. at
12 (“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

5
constitutional muster.”). As a result, we reject Licensee’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.6
Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

6
See also 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

Holly Sara Seelhorst, :
:
Appellant :
:
v. : No. 73 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :

ORDER

AND NOW, this 7th day of November, 2022, the order of the
Cumberland County Court of Common Pleas dated December 30, 2020, is
AFFIRMED.

__________________________________
MICHAEL H. WOJCIK, Judge