H.E. Ferguson v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Henry Earl Ferguson, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 123 C.D. 2021
Bureau of Driver Licensing : Argued: October 20, 2021

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY
JUDGE COVEY FILED: December 22, 2021

Henry Earl Ferguson (Licensee) appeals from the Cumberland County
Common Pleas Court’s (trial court) January 21, 2021 order denying Licensee’s
appeal from the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing’s (DOT) 12-month suspension of his driving privileges.
Licensee presents one issue for this Court’s review: whether Licensee’s substantive
and procedural due process rights were violated when DOT suspended his driving
privileges as a subsequent or repeat Driving Under the Influence (DUI) offender,
after he had successfully completed an Accelerated Rehabilitative Disposition
(ARD) program. After review, this Court affirms.
 In 2012, Licensee was arrested and charged with a violation of Section
3802(a)(1) of the Vehicle Code,1 an ungraded misdemeanor, DUI, general
impairment, in Cumberland County. On December 19, 2012, Licensee was accepted
into the ARD program, which he successfully completed. On July 14, 2020,
Licensee pleaded guilty in the Cumberland County Common Pleas Court
(sentencing court)2 to a violation of Section 3802(a)(1) of the Vehicle Code, an
ungraded misdemeanor, DUI, general impairment. On July 16, 2020, DOT mailed
Licensee an Official Notice of Suspension of Driving Privilege (Notice) for one year,
effective August 27, 2020, pursuant to Section 3804(e)(2)(i) of the Vehicle Code.3
Licensee appealed from the Notice to the trial court. On November 4, 2020, the trial
court held a hearing. On January 21, 2021, the trial court denied Licensee’s appeal.
Licensee appealed to this Court.4
Initially, Section 3804(e) of the Vehicle Code mandates, in relevant
part:

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:

1
75 Pa.C.S. § 3802(a)(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
This Court refers to the court as sentencing court to distinguish it from the trial court.
3
75 Pa.C.S. § 3804(e)(2)(i) (“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.”).
4
“Our review 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.” Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa.
Cmwlth. 2018).

2
 (i) an offense under [S]ection 3802 [of the Vehicle Code];
....
(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 [S]ection 3802(a) [of the Vehicle
Code] 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) (text emphasis added).
Section 3806(a) of the Vehicle Code provides that a “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 [ARD] or other form of preliminary
disposition before the sentencing on the present violation
for any of the following:
(1) an offense under [S]ection 3802 [of the Vehicle Code]
(relating to driving under influence of alcohol or
controlled substance)[.]
75 Pa.C.S. § 3806(a) (emphasis added).

On May 20, 2020, the Pennsylvania Superior Court ruled in
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), that the particular
provision of Section 3806(a) of the Vehicle Code that defines a prior acceptance of
ARD in a DUI case as a “prior offense” for DUI criminal sentencing enhancement
purposes is unconstitutional. This case presents an issue of first impression as to
whether, if at all, Chichkin affects the civil suspension of driving privileges for

3
second-time DUI offenders when the first DUI offense is disposed of before
sentencing on the violation by ARD.
Licensee argues that, pursuant to Chichkin, Licensee’s substantive and
procedural due process rights were violated when DOT suspended his driving
privileges as a subsequent or repeat DUI offender, after he had successfully
completed an ARD program and earned a dismissal of his prior DUI offense.
Licensee contends that, since a prior ARD acceptance involves no proof or
admission of guilt, the DUI recidivist statutory license suspension based on a prior
offense that was never proven is unconstitutional as applied to Licensee.
DOT rejoins that, in Chichkin, the Pennsylvania Superior Court
determined that a prior DUI conviction may be used as a factor in enhancing a
criminal sentence for a subsequent DUI conviction, but acceptance of ARD is not a
conviction, and relying upon a previous ARD-DUI to enhance the sentence for a
DUI conviction violates the constitutional requirement that any facts used to enhance
a criminal sentence must be proven to a jury beyond a reasonable doubt. DOT
asserts, however, that Chichkin has no impact upon a civil operating privilege
suspension imposed in accordance with Section 3804(e)(2)(i) of the Vehicle Code,
because a prior ARD-DUI is not being used to enhance a criminal punishment. DOT
maintains that an operating privilege suspension is a civil sanction, not part of the
criminal sentence for a DUI conviction.
This Court has explained:

The exception set forth in Section 3804(e)(2)(iii) of the
Vehicle Code applies if three conditions are met:
First, the licensee must be convicted of violating
[Section] 3802(a)(1) [of the Vehicle Code] as an
ungraded misdemeanor. Second, the licensee must
be subject to the penalties contained in [Section]
3804(a) [of the Vehicle Code]. Third, the licensee

4
 must not have a “prior offense” as defined in Section
3806 of the Vehicle Code[.]

Diveglia v. Dep’t of Transp., Bureau of Driver Licensing, 220 A.3d 1167, 1170 (Pa.
Cmwlth. 2019) (quoting Becker v. Dep’t of Transp., Bureau of Driver Licensing,
186 A.3d 1036, 1037-38 (Pa. Cmwlth. 2018)).
The Diveglia Court expounded:

[T]he only reference in Section 3804 of the Vehicle Code
to the term “prior offense” is found in subsection
(e)(2)(iii), which provides a narrowly tailored exception
from suspension where a licensee has “an ungraded
misdemeanor under Section 3802(a) [of the Vehicle
Code]”—which is the lowest of the prohibited impairment
levels—and “the person is subject to the penalties
provided in subsection (a) and . . . has no prior offense.”
75 Pa.C.S. § 3804(e)(2)(iii). Thus, in the license
suspension realm, whether a licensee has a prior
offense is relevant for one purpose only— to determine
whether a licensee with an offense for the lowest level
of prohibited impairment— i.e., impairment as defined
in Section 3802(a) of the Vehicle Code— is excused from
the [12]-month suspension that otherwise would be
imposed under Section 3804(e)(2)(i) of the Vehicle
Code. If the licensee has had any prior offense as
defined in Section 3806([a]) of the Vehicle Code, then
the licensee is not entitled to the exception.

Diveglia, 220 A.3d at 1173 (emphasis added). Here, it is undisputed that Licensee
had an “acceptance of [ARD] . . . before the sentencing on the present violation for
. . . an offense under [S]ection 3802 [of the Vehicle Code,]” Diveglia, 220 A.3d at
1170, and therefore was not “excused from the [12]-month suspension that otherwise
would be imposed under Section 3804(e)(2)(i) of the Vehicle Code.” Diveglia, 220
A.3d at 1173.
The Chichkin Court determined that the portion of Section 3806(a) of
the Vehicle Code that statutorily equates a prior ARD acceptance to a prior
conviction under Section 3804 of the Vehicle Code is unconstitutional for purposes

5
of subjecting a defendant to a mandatory minimum criminal sentence under
Section 3804 of the Vehicle Code.
Nonetheless, this Court has long held:
The ARD program is provided as part of criminal
proceedings. However, a license revocation is a civil
proceeding. The suspension of operating privileges is,
therefore, a collateral consequence of any criminal
proceedings. It is a consequence, civil in nature, whose
imposition has been vested in an administrative agency
over which the criminal judge had no control and for
which he had no responsibility. “Courts have thus
consistently held that a trial court’s failure to inform a
defendant of this potential collateral consequence does not
invalidate his [guilty] plea.” Commonwealth v.
Wellington, . . . 451 A.2d 223, 224 ([Pa. Super.] 1982);
Commonwealth v. Englert, . . . 457 A.2d 121 ([Pa. Super.]
1983). This Court fails to perceive any reason why
acceptance by the appellant of an ARD program
should be invalidated, or at least not considered for
purposes of [Section 3804(e)(2)(i) of the Vehicle Code]
any more than a guilty plea.

Brewster v. Dep’t of Transp., 503 A.2d 497, 498 (Pa. Cmwlth. 1986) (emphasis
added; citation omitted);5 see also Spagnoletti v. Dep’t of Transp., Bureau of Driver
Licensing, 90 A.3d 759 (Pa. Cmwlth. 2013).
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

5
The Brewster Court referred to Section 1542 of the Vehicle Code, 75 Pa.C.S. § 1542,
relating to license revocation of habitual offenders. However, the same rationale applies to Section
3804(e)(2)(i) of the Vehicle Code.

6
“[s]uspension of operating privileges upon conviction,” i.e., the collateral civil
consequence thereof. 75 Pa.C.S. § 3804(e); see Brewster. 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.
The Spagnoletti Court explained:

“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.” Dep’t of
Transp., Bureau of Driver Licensing v. Tarnopolski, . . .
626 A.2d 138, 140 ([Pa.] 1993). []DOT bears the initial
burden to establish a prima facie case that a record of
conviction supports a suspension. Taddei v. Dep’t of
Transp., Bureau of Driver Licensing, 982 A.2d 1249 (Pa.
Cmwlth. 2009). An essential part of satisfying this burden
is the production of an official record of the conviction
supporting the suspension. Glidden v. Dep’t of Transp.,
Bureau of Driver Licensing, 962 A.2d 9 (Pa. Cmwlth.
2008). []DOT must also establish it acted in accordance
with applicable law. Id.

Spagnoletti, 90 A.3d at 766.
In the instant matter, at the trial court hearing, DOT presented
Licensee’s certified driver’s license record, which included Licensee’s conviction
and his ARD, see Reproduced Record (R.R.) at 726 (Court Clerk’s Report Showing
Conviction), and 76 (Court Clerk’s Report Showing ARD), which the trial court
accepted into the record. See R.R. at 5. Thus, DOT met its prima facie burden of
supporting Licensee’s 12-month driver’s license suspension.

To overcome the rebuttable presumption that []he was
convicted of these offenses, Licensee bore the burden of
6
Licensee’s Reproduced Record fails to comply with the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2173 (“[T]he pages of . . . the reproduced record . . . shall be numbered
separately in Arabic figures . . . thus 1, 2, 3, etc., followed in the reproduced record by a small a,
thus 1a, 2a, 3a, etc.”). However, for consistency of reference, the citations herein are as reflected
in the Reproduced Record.

7
 proving by clear and convincing evidence that the record
was erroneous. Mateskovich v. Dep’t of Transp., Bureau
of Driver Licensing, 755 A.2d 100 (Pa. Cmwlth. 2000).
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 102 n.6 (citation omitted).

Spagnoletti, 90 A.3d at 766. Here, Licensee did not present any evidence to rebut
the presumption. Accordingly, the trial court properly denied Licensee’s appeal.
For all of the above reasons, the trial court’s order is affirmed.

_________________________________
ANNE E. COVEY, Judge

8
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Henry Earl Ferguson, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 123 C.D. 2021
Bureau of Driver Licensing :

ORDER

AND NOW, this 22nd day of December, 2021, the Cumberland County
Common Pleas Court’s January 21, 2021 order is affirmed.

_________________________________
ANNE E. COVEY, Judge