IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kyle Lewis Schreiber, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 787 C.D. 2021
Bureau of Driver Licensing : Submitted: September 16, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: February 6, 2023
Kyle Lewis Schreiber (Licensee) appeals from the June 10, 2021 order
of the Court of Common Pleas of Lehigh County (trial court) that dismissed
Licensee’s statutory appeal from a 12-month driver’s license suspension imposed by
the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (DOT), in accordance with the requirements of 75 Pa.C.S. § 3804(e)(2)(i),
which requires a 12-month suspension of a driver’s operating privilege upon the
receipt of a certified conviction of an ungraded misdemeanor or a misdemeanor of
the second degree for driving under the influence of alcohol or a controlled substance
(DUI).1 Upon review, we affirm.
1
75 Pa.C.S. § 3802.
The facts underlying this matter are straightforward and not in dispute.
Licensee was placed into an Accelerated Rehabilitative Disposition (ARD) program
in May 2013 following an arrest for DUI2 in October 2012. Thereafter, in August of
2020, Licensee entered a guilty plea and was convicted of an ungraded misdemeanor
DUI violation3 that had occurred in December of 2019.4 As a result, on August 14,
2020, DOT sent notification that it would impose a 12-month suspension of Licensee’s
operating privilege in accordance with 75 Pa.C.S. § 3804(e)(2)(i), effective
September 18, 2020. Licensee filed a timely statutory appeal of the license
suspension in the trial court on September 14, 2020. The trial court conducted a de
novo hearing on March 15, 2021, and, on June 9, 2021, entered an order denying
Licensee’s statutory appeal. Licensee timely appealed to this Court.
Licensee raises one claim on appeal before this Court:5 whether the
trial court erred in determining that Licensee was subject to a 12-month license
suspension pursuant to 75 Pa.C.S. § 3804(e)(2)(i) where his prior DUI offense was
disposed of by an ARD. See Licensee’s Br. at 4 & 7-19. Licensee argues that an
ARD should not be counted as a “prior offense” for the purpose of 75 Pa.C.S. §
3804(e)(2)(iii) based on Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.
2
See 75 Pa. C.S. § 3802(d)(1)(iii).
3
See 75 Pa. C.S. § 3802(a)(2).
4
As part of the disposition of this case, Licensee’s operating privilege was suspended for
a period of 90 days pursuant to 75 Pa.C.S. § 3807(d), effective from May 2, 2013, through October
3, 2013.
5
“Our standard of review in a license suspension case 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 an abuse of discretion.” Negovan v. Dep’t of Transp., Bureau of
Driver Licensing, 172 A.3d 733, 735 n.4 (Pa. Cmwlth. 2017).
2
2020),6 in which the Superior Court held 75 Pa.C.S. § 3806 (concerning prior
offenses) unconstitutional to the extent it defines prior acceptance of ARD for a
previous DUI as a “prior offense” for the purpose of imposing enhanced criminal
penalties for subsequent DUI convictions. See id.
DOT, on the other hand, argues that Chichkin has no impact on the
imposition of operating privilege suspensions because license suspensions are civil,
not criminal, sanctions, and prior ARDs are therefore not employed in license
suspension actions to enhance criminal punishments. See DOT’s Br. at 5-6 & 7-34.
DOT effectively argues that Licensee conflates the requirements for criminal
punishment for DUIs in a criminal court with the requirements for imposing a civil
driver’s license suspension. See id.
The Vehicle Code prescribes a one-year suspension of driving
privileges for individuals convicted of DUI who have committed a “prior offense”
as follows:
(e) Suspension of operating privileges upon
conviction.—
(1) The department 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; or
(ii) an offense which is substantially similar to an
offense enumerated in section 3802 reported to the
department under Article III of the compact in
6
The Superior Court recently overruled Chichkin in Commonwealth v. Moroz, 284 A.3d
227 (Pa. Super. 2022) (en banc), as discussed infra.
3
section 1581 (relating to Driver’s License
Compact).
(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 or
misdemeanor of the second degree 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) (emphasis added). The Vehicle Code defines “prior offense”
as:
(a) General rule.—[T]he 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
(4) any combination of the offenses set forth in
paragraph (1), (2) or (3).
75 Pa.C.S. § 3806(a) (emphasis added).
Licensee’s reliance on Chichkin is misplaced. In Chichkin, the Superior
Court applied the rule established by the Supreme Court of the United States in
Alleyne v. United States, 570 U.S. 99 (2013) – that any fact that increases a
mandatory minimum criminal penalty (other than the fact of a previous conviction)
must be proven to a jury beyond a reasonable doubt – to prior acceptance of previous
DUI ARDs to criminal sentencing for subsequent DUI convictions. See Chichkin,
232 A.3d at 966-69. The Superior Court determined that the acceptance of ARD,
which involves no admission or proof of guilt beyond a reasonable doubt, did not
constitute a conviction for Alleyne purposes. See id. at 968-69. Therefore, the
Superior Court determined that the mandatory imposition of criminal penalties based
solely on the previous acceptance of ARD in a prior DUI matter was
unconstitutional. See id. Accordingly, the Superior Court held 75 Pa.C.S. § 3806
unconstitutional to the extent it defines a prior acceptance of ARD as a “prior
offense” for the purpose of imposing enhanced criminal penalties for subsequent
DUI convictions. See id. However, during the pendency of this appeal, the Superior
Court expressly overruled Chichkin, holding instead “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.” Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en banc).
Thus, the use of a prior ARD at a sentencing hearing to enhance the mandatory
minimum of a second or subsequent DUI conviction is permitted. See id.
5
Additionally, this Court, sitting en banc, previously addressed the very
issue raised by Licensee herein in Ferguson v. Department of Transportation,
Bureau of Driver Licensing, 267 A.3d 628 (Pa. Cmwlth. 2021), appeal granted, 280
A.3d 859 (Pa. 2022). Ferguson involved a licensee who claimed his substantive and
procedural due process rights were violated when DOT suspended his driving
privileges as a subsequent or repeat DUI offender after he successfully completed
an ARD program following his first DUI arrest. This Court reviewed the facts and
holding of Chichkin and determined that the use of a previous DUI-based ARD as a
“prior offense” for the purpose of a Section 3804(e)(2)(iii) of the Vehicle Code civil
driver’s license suspension did not violate a licensee’s due process rights. See
Ferguson, 267 A.3d at 632. We 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 “suspension of operating
privileges upon conviction,” i.e., the collateral civil
consequence thereof. 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.
Id. (internal citations and brackets omitted).
Here, because the factual scenario presented in the instant matter is
functionally identical to that presented in Ferguson, the same rationale applies to the
instant case. For this reason, and in light of the Superior Court’s express overruling
of Chichkin, we find no error in the trial court’s determination that Chichkin was
6
inapplicable to Licensee’s driver’s license suspension because a license suspension
is a civil, not a criminal, penalty. See Trial Court Opinion filed September 24, 2021,
at 1-2.7 Accordingly, we find no error in the trial court’s dismissal of Licensee’s
statutory appeal.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
7
We acknowledge that the Supreme Court has granted a Petition for Allowance of Appeal
in Ferguson to hear and decide the ARD-as-prior-offense issue. See Ferguson v. Dep’t of Transp.,
Bureau of Driver Licensing, 280 A.3d 859 (Pa. 2022). While the Supreme Court may on appeal
overturn this Court’s determination regarding the use of ARDs as “prior offenses” in license
suspension cases, until it does, this Court’s determination in Ferguson remains the law of the
Commonwealth. See Germantown Cab Co. v. Phila. Parking Auth., 27 A.3d 280, 283 (Pa.
Cmwlth. 2011) (“It is axiomatic that a decision of an appellate court remains binding precedent,
even if it has been appealed, unless and until it is overturned by the Pennsylvania Supreme
Court.”).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kyle Lewis Schreiber, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 787 C.D. 2021
Bureau of Driver Licensing :
ORDER
AND NOW, this 6th day of February, 2023, the June 10, 2021 order of
the Court of Common Pleas of Lehigh County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge