Validity of DUI Statutes’ Penalization based on Prior Acceptance of ARD
Ferguson v. PennDOT, 267 A.3d 628 (Pa. Cmwlth. 2021), allocatur granted June 22, 2022, appeal docket 73 MAP 2022
In this case, the Pennsylvania Supreme Court will consider whether the Pennsylvania Department of Transportation’s (DOT) suspension of a motorist’s driving privileges as a subsequent or repeat driving under the influence (DUI) offender where the motorist had successfully completed an accelerated rehabilitative disposition (ARD) program violates constitutional substantive and procedural due process rights based on Superior Court’s holding in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), that found defining a prior acceptance of ARD in a DUI case as a “prior offense” for DUI criminal sentencing enhancement purposes is unconstitutional.
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:
(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.
Slip op. at 2-3, quoting 75 Pa.C.S. § 3804(e) (emphasis added by Commonwealth Court). 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)[.]
Slip op. at 3, quoting 75 Pa.C.S. § 3806(a) (emphasis added by Commonwealth Court).
Commonwealth Court summarized the factual and procedural background as follows:
In 2012, Licensee [Ferguson] was arrested and charged with a violation of Section 3802(a)(1) of the Vehicle Code, 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) 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. 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.
Slip op. at 2. Ferguson appealed to Commonwealth Court. Relying on Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), Ferguson argued 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.
Slip op. at 4. DOT countered that Chichkin applies only to criminal sentencing enhancements, not to civil sanctions, i.e., operating privilege suspensions.
Commonwealth Court held, as a matter of first impression, that Superior Court’s ruling in Commonwealth v. Chichkin, 232 A.3d 959, specifically applies to the criminal sentencing provisions, not civil license-suspension proceedings; therefore, Ferguson’s substantive and procedural due process rights were not violated by DOT’s suspension of his driver’s license. Commonwealth Court reasoned:
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 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, [305 Pa.Super. 24], 451 A.2d 223, 224 (1982); Commonwealth v. Englert, [311 Pa.Super. 78], 457 A.2d 121 (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., 94 Pa.Cmwlth. 277, 503 A.2d 497, 498 (1986) (emphasis added; citation omitted); 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 “[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.
Slip op. at 5-7 (emphasis in original).
The Pennsylvania Supreme Court granted allocatur as to the following issue:
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?
For more information, contact Kevin McKeon or Dennis Whitaker.