IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Walter Smith, :

Appellant :

:

 v. : No. 607 C.D. 2022

: SUBMITTED: June 5, 2023

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: June 27, 2023

James Walter Smith, Licensee, appeals from the order of the Court of 

Common Pleas of Fayette County denying his statutory appeal from the 

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver 

Licensing’s one-year suspension of his driving privileges. We affirm.

Licensee was accepted into the accelerated rehabilitative disposition 

(ARD) program on October 2, 2019, after being cited on May 22, 2019, for driving 

under the influence (DUI) under Section 3802(b) of the Vehicle Code, 75 Pa.C.S. § 

3802(b) (relating to DUI of alcohol or controlled substance—high rate of alcohol). 

In accordance with Section 3807(d)(2) of the Vehicle Code, 75 Pa.C.S. § 3807(d)(2) 

(relating to ARD—mandatory suspension of operating privileges), Licensee’s

operating privilege was suspended for a period of 30 days, effective November 19, 

2019. Licensee’s operating privilege was restored on December 19, 2019. On 
2

January 20, 2022, Licensee was convicted of violating Section 3802(a)(1) of the 

Vehicle Code, 75 Pa.C.S. § 3802(a)(1), on July 31, 2021. The sentencing order 

entered on January 22, 2022, stated that “there is no license suspension.” 

(Reproduced R. “R.R.,” Item 1.1) Upon receipt of the report of Licensee’s 

conviction, the Department, by notice mailed January 31, 2022, imposed a one-year 

suspension on Licensee’s operating privilege in accordance with Section 

3804(e)(2)(i) of the Vehicle Code, 75 Pa.C.S. § 3804(e)(2)(i), effective March 7, 

2022.

On February 23, 2022, Licensee filed his appeal of the suspension in 

accordance with Section 1550 of the Vehicle Code, 75 Pa.C.S. § 1550 (relating to 

judicial review), in the trial court. After a hearing de novo, the Department’s counsel 

offered into evidence Department’s Exhibit No. 1 (Suppl. Reproduced R.2 “S.R.R.” 

at 1b-15b), which was admitted without objection. Licensee’s counsel offered into 

evidence a copy of Licensee’s sentencing order for his conviction on January 20, 

2022. The trial court entered an order dismissing Licensee’s statutory appeal and 

Licensee appealed to this Court.

On appeal, Licensee raises two issues:

[(1)] Whether the trial court erred as a matter of law, and 

violated [Licensee’s] substantive and procedural due 

process rights, in determining that [his] prior acceptance 

1 The pages of Licensee’s reproduced record are not numbered, contrary to the requirements 

of Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173 (relating to the 

numbering of pages). Thus, we refer to the items therein by number as they are indexed in the 

reproduced record.

2 Licensee’s reproduced record omitted Department’s Exhibit 1, which consists of certified 

copies of the January 31, 2022 notice of suspension; the report of conviction from the Fayette 

County Clerk of Courts; the earlier license restoration; the earlier notice of suspension; the report 

of the Clerk of Courts of the ARD; and Licensee’s driving record.
3

into and successful completion of the [ARD] program for 

an alleged violation of Section 3802 was a “prior offense”

for the purposes of the suspension of his driving 

privileges, when [his] entry into the ARD program did not 

require him to enter a plea of guilty and the 

Commonwealth was not required to prove [his] culpability 

beyond a reasonable doubt.

[(2)] Whether the trial court erred as a matter of law in 

upholding the suspension of driving privileges imposed by 

the . . . Department . . . for a conviction for [DUI]—

General Impairment pursuant to Section 3802(a)(1), 

second offense, when [Licensee] entered into a negotiated 

plea agreement that included no license suspension.

(Licensee Br. at 4.)

With respect to his first issue, Licensee argues that his acceptance into 

the ARD program should not be treated as a first offense, relying upon the reasoning 

of Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), overruled by

Commonwealth v. Moroz, 284 A.3d 227 (Pa. Super. 2022) (en banc). In Chichkin, 

a three-judge panel of the Superior Court held that Section 3806(a)(1) of the Vehicle 

Code, 75 Pa.C.S. § 3806(a)(1),

3 was unconstitutional so far as it defines prior offense 

to include acceptance of ARD for a DUI offense under Section 3802 for DUI 

criminal sentencing enhancement purposes. However, in addition to Chichkin being 

overruled by the Superior Court in Moroz, this Court in Ferguson v. Department of 

3 Section 3806(a)(1) provides in pertinent part as follows:

[T]he term “prior offense” as used in this chapter shall mean any 

conviction for which judgment of sentence has been imposed[] . . . 

[or] acceptance of [ARD] . . . for any of the following:

(1) an offense under section 3802 (relating to [DUI] of alcohol or 

controlled substance)[.]

75 Pa.C.S. § 3806(a)(1).
4

Transportation, Bureau of Driver Licensing, 267 A.3d 628 (Pa. Cmwlth. 2021) (en 

banc), appeal granted, 280 A.3d 859 (Pa. 2022), distinguished Chichkin, holding 

that because license suspensions are civil proceedings, Section 3806(a) is still valid 

for purposes of civil license suspensions. Ferguson, 267 A.3d at 632. Although our 

Supreme Court has granted an appeal in Ferguson,

4

it remains a binding precedent 

on this panel under Pennsylvania Rule of Appellate Procedure 3103(b).5 For 

purposes of civil license suspension, entry into ARD still qualifies as a prior offense.

With regard to his second issue, Licensee argues that he deserves the 

benefit of his plea bargain, which was memorialized in an order of the trial court 

entered on January 22, 2022, stating that “there is no license suspension.” This Court 

has held over 30-plus years that the mandatory civil penalties of the Vehicle Code 

are not subject to the terms of a plea agreement. Lefever v. Dep’t of Transp., Bureau 

of Driver Licensing, 533 A.2d 501, 503 (Pa. Cmwlth. 1987). Whatever the 

considerations of Licensee and the Fayette County District Attorney’s office were 

in bargaining the plea, and the trial court in accepting it, such an agreement does not 

bind the Department.

4 The Supreme Court has granted the appeal to consider the following question: 

Did the Commonwealth Court err by ignoring the controlling 

decisions of this Court and the United States Supreme Court [by] 

holding that DUI statutes that penalize a defendant with a lengthy 

license suspension as a recidivist based on a prior acceptance of 

ARD disposition do not violate due process under the Pennsylvania 

and United States Constitutions even though the defendant who 

accepts ARD is presumed innocent and there is no proof of guilt?

Order, Ferguson v. Dep’t of Transp., Bureau of Driver Licensing (Pa., No. 28 MAL 2022, filed 

June 22, 2022).

5 Pursuant to Pennsylvania Rule of Appellate Procedure 3103(b), an en banc decision of 

this Court is binding on any subsequent panel. Pa.R.A.P. 3103(b).
5

In light of the foregoing, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Walter Smith, :

Appellant :

:

 v. : No. 607 C.D. 2022

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

O R D E R

AND NOW, this 27th day of June, 2023, the order of the Court of 

Common Pleas of Fayette County is AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita