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...)
2

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...)
3

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. . . .”).
4

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).
5

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.”).
6

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.”).
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 :

O R D E R

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