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, De partment of Transportation, Bureau of Driver

Licensing (DOT) pursuant to Section 3 8 04(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 state s :

(e) Suspension of operating privileges upon conviction.

--

( 1) [DOT] shall suspend the operating privilege of an individual

u nder paragraph (2) upon receiving a certified record of the

individual ’ s conviction of or an adjudication of delinquency for: (Footnote continued on next page...)2 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 Code 2 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) Exce pt 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 af ter 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 m ovement 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, 7 5 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 s ection 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...)3

( 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, 20 16. 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

ev idence 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, sta ting 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...)4 Ult imately, 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 Licen see 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 ca se 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 l aw.

* * *

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 c lear 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 a s 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 licen se 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 inval idate 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, passes6

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 stat ed 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.

Cmwl th., 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 re cently rejected by this Court. See Ferguson , 267 A.3d at 632. Accordingly, we follow our prior, precedential decision in Ferguson , reject [ h is ] argument, and reverse the trial court ’ s order .”); Owen v. Department of Transportation, Bureau of Driver Licens ing (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

Holly Sara Seelhorst, :

: Appellant :

:

v. : No. 73 C.D. 2021

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

O R D E R

AND NOW, this 7 th day of November , 20 2 2

, the order of the

Cumberland County Court of Common Pleas dated December 30, 2020, is

AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge