R.B. Carter v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Royce Brian Carter, : CONSOLIDATED CASES

Appellant :

v. : No. 1102 C.D. 2023

: No. 1103 C.D. 2023

Commonwealth of Pennsylvania, :

Department of Transportation, : Submitted: December 9, 2024

Bureau of Driver Licensing :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE McCULLOUGH FILED: March 3, 2025

Royce Brian Carter (Licensee) appeals from the August 29, 2023 orders

of the Court of Common Pleas of Dauphin County (trial court) denying his Driver’s

License Suspension appeals from a one-year suspension of his personal and

commercial driver’s license that had been imposed by the Commonwealth of

Pennsylvania, Department of Transportation (Department), Bureau of Driver Licensing

(Bureau) under Sections 1547(b)(1)(i) and 1613(d.1) of the Vehicle Code, 75 Pa. C.S.

§§ 1547(b)(1)(i), 1613(d.1).1 After review, we affirm.

1

Section 1547 of the Vehicle Code, commonly known as the Implied Consent Law, applies

to non-commercial drivers and relevantly provides that “[i]f any person placed under arrest for

[driving under the influence of alcohol or a controlled substance (DUI)] is requested to submit to

chemical testing and refuses to do so . . . , the [Department] shall suspend the operating privilege of

the person . . . for a period of 12 months.” 75 Pa. C.S. § 1547(b)(l)(i). Section 1613 of the Vehicle

Code, commonly known as the Commercial Driver’s License Act, extends the consequences for a

refusal under Section 1547 to that same driver’s commercial license. Id. § 1613(d.1), (d.3). The

commercial disqualification is for the same period as would be imposed for a conviction for the

(Footnote continued on next page…)

I. Facts and Procedural History

The following facts are not disputed. On September 10, 2022, a

Pennsylvania State Trooper initiated a traffic stop of Licensee’s vehicle. As the

Trooper approached the vehicle, he detected a strong odor of both burnt and fresh

marijuana. Licensee admitted to having smoked marijuana about five hours prior. The

Trooper noticed that Licensee had glassy, bloodshot eyes and dilated pupils. After the

Trooper observed a large sum of money in the driver’s side door and a large bag of

crack cocaine, Licensee was asked to exit the vehicle. At that point, Licensee sped

away from the traffic stop and a high-speed chase ensued throughout Harrisburg city.

Subsequently, Licensee was stopped, apprehended at gunpoint, taken into custody, read

his Miranda2 rights, and placed in the back of a patrol car. Licensee indicated that he

understood his Miranda rights. While Licensee was seated in the patrol car, the

Trooper read him the DL-26B Form verbatim. Within these warnings, the Trooper

advised Licensee that he did not have a right to consult with an attorney before

submitting to a blood test. The DL-26B Form contains warnings of the potential

consequences of a person’s refusal to consent to a blood test, including that the

individual’s license could be suspended for at least one year, and that if convicted of

violating 75 Pa. C.S. § 3802(a), the individual will face more severe penalties because

of the refusal. It reads in pertinent part as follows:

1. You are under arrest for driving under the influence of

alcohol or a controlled substance in violation of Section 3802

of the Vehicle Code.

offense for which testing was requested—in this case, a one-year suspension for DUI. See id. §

1611(a)(1).

2

Miranda v. Arizona, 384 U.S. 436 (1966).

2

2. I am requesting that you submit to a chemical test of blood.

3. If you refuse to submit to a blood test, your operating

privilege will be suspended for at least 12 months. . . . If your

operating privilege is suspended for refusing chemical

testing, you will have to pay a restoration fee of up to $2,000

in order to have your operating privileges restored.

4. You have no rights to speak with an attorney or anyone

else before deciding whether to submit to testing. If you

request to speak with an attorney or anyone else after being

provided these warnings or you remain silent when asked to

submit to a blood test, you will have refused the test.

Pennsylvania Department of Transportation, DL-26B Form. (emphasis added).

At no point did Licensee indicate that he did not understand what the

Trooper said about the DL-26B Form. After being read the DL-26B Form, Licensee

initially asked for an attorney. Thereafter, the Trooper asked Licensee if he would

consent to a blood test and Licensee refused. Licensee did not continue to ask to speak

with an attorney and simply said “no” to submitting to the testing.

On September 19, 2022, the Bureau mailed Licensee a notice that it was

suspending his operating privilege for a period of one year, effective October 24, 2022,

at 12:01 a.m., pursuant to Section 1547(b)(1) of the Implied Consent Law, as a result

of an alleged refusal to submit to chemical testing on September 10, 2022. With a

second notice, the Bureau advised Licensee that it was disqualifying his commercial

operating privilege for a period of one year, effective October 24, 2022, at 12:01 a.m.,

pursuant to Section 1611(a) of the Commercial Driver’s License Act, as a result of the

same refusal. Licensee filed a license suspension appeal for the suspension of his non-

commercial driver’s license and a separate license suspension appeal for the

disqualification of his commercial driving privilege. A hearing was held on Licensee’s

appeals on August 29, 2023.

3

The Trooper testified as to the above. Licensee did not testify or present

any evidence on his own behalf, including any evidence that he was confused by the

order in which the Miranda and DL-26B warnings were read. During summation, his

counsel argued that, when read together, the Miranda warnings and the DL-26B Form

per se create confusion. Counsel did not argue at any time that Licensee was confused.

He argued that the Miranda warnings advised Licensee that he had the right to counsel,

but the DL-26B Form advised that he did not have the right to speak to counsel.

Counsel’s entire summation on the confusion issue was as follows:

But then I think the heavier issue there is this confusion

between the Miranda warnings and DL[-]26[B Form].

Specifically he was told, you have a right to an attorney. You

have a right to an attorney. He was placed in handcuffs, put

in the back of a patrol car, continued to be questioned about

their ongoing investigation at that point in time.

And then eventually the [T]rooper gets back in the patrol car

and then subsequently advises him of this DL[-]26[B] Form

where he no longer has a right to speak to an attorney. There

was never any clarification, hi, sir, we’re dealing with a

criminal matter in the context of Miranda but now we’re

dealing with civil sanctions and consequences based on this

DL 26[B] Form.

And I think what’s significant there is after the first time that

the [T]rooper advised [Licensee] of the DL[-] 26[B] Form,

what did he do? He asked to speak with an attorney. I mean,

the trooper did subsequently ask him again and read the form

and there were no questions. He said, no, I’m not going to

submit to the test.

But again, I think the ongoing confusion with the

investigation that was going on and the fact that he was

advised of his Miranda warnings initially and then

4

subsequently advised that he did not have a right to speak to

an attorney.

So I don’t believe there’s any way that the Commonwealth

can prove that [Licensee] knowingly, intelligently, and

voluntarily refused to submit to this chemical test of blood.

(Reproduced Record (R.R.) at 35a-36a.)

Licensee’s counsel also argued that imposing a one-year disqualification

of his commercial driving privilege violated the cruel and unusual punishment

provisions of the United States (U.S) and Pennsylvania Constitutions. At the

conclusion of the hearing, the trial court denied both of Licensee’s appeals. A notice

of appeal was filed at each docket on September 27, 2023.3 On November 15, 2023,

the trial court issued its opinion pursuant to Pennsylvania Rule of Appellate Procedure

1925(a), Pa.R.A.P. 1925(a).

On appeal,4 Licensee raises two issues. First, he argues that to provide a

motorist with Miranda warnings and then advise him via the DL-26B Form warnings

that he has no right to an attorney before he consents to a chemical test is per se

confusing – makes it impossible, as a matter of law, for him to make a knowing and

conscious refusal to submit to a blood draw. Second, he argues that the imposition of

a one-year suspension of his commercial driver’s license constitutes cruel and unusual

punishment under the Eighth Amendment to the U.S. Constitution and article I, section

13 of the Pennsylvania Constitution.

3

By per curiam Order dated January 5, 2024, this Court consolidated the appeals.

4

This Court’s standard of review in a license suspension case 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 an abuse of discretion. Banner v. Department of Transportation, Bureau

of Driver Licensing, 737 A.2d 1203 (Pa. 1999).

5

1.

Licensee argues that advising motorists of their Miranda warnings prior

to the warnings on the DL-26B Form is per se confusing. Licensee contends that the

trial court erred in denying his appeals because the Trooper read him his Miranda

warnings while he was initially being taken into custody and then shortly thereafter

read him the DL-26B Form when he was in the back of the patrol car. He contends

that the Trooper’s reading of the Miranda warnings shortly before reading the DL-26B

Form was per se confusing because the Trooper failed, after reading the DL-26B Form,

to further clearly explain to him that the Miranda warnings, particularly his right to

counsel, did not apply to a request for chemical testing under the Implied Consent Law.

He contends that “[a]lthough [the] Trooper [] read from the DL[-]26B [F]orm,

[Licensee] was never provided clarity on the application of his Miranda warnings to

the [T]rooper’s subsequent request to submit to a blood draw.” (Licensee’s Br. at 24.)

A. Department of Transportation, Bureau of Traffic Safety v. O’Connell

The warnings on the DL-26B Form are often referred to as the “O’Connell

warnings” or the “Implied Consent Warnings.” In Department of Transportation,

Bureau of Traffic Safety v. O’Connell, 555 A.2d 873 (Pa. 1989), our Supreme Court

held that where a police request for chemical testing is preceded by Miranda warnings,

the police have an affirmative duty to not only inform the arrestee that his driving

privilege will be suspended for one year if he refuses chemical testing, but also that the

arrestee does not have the right to consult with an attorney or anyone else prior to

deciding whether to perform chemical testing. There, O’Connell was involved in an

automobile accident in Montgomery County. Police at the scene of the accident noticed

the strong smell of alcohol on O’Connell’s breath and conducted a field sobriety test.

Upon O’Connell’s failure of this test, the officer arrested him for driving under the

6

influence of alcohol. O’Connell was immediately advised of his Miranda rights and

taken to the police station where he was again advised of his Miranda rights in written

form. Paragraph 6 of the form asked, “Do you want to talk to a lawyer at this time or

have a lawyer with you while we ask you questions?” Initially, O’Connell answered

“No,” but later he changed his answer to “Yes.”

Subsequently, O’Connell was asked to submit to a breathalyzer test. He

refused and claimed that he refused because he had not been allowed to speak with an

attorney. The officer testified that O’Connell gave no reason for his refusal, that he

was permitted to call his lawyer, and that following this call, O’Connell was willing to

submit to the test. The officer would not administer the test, however, because he had

been unable to personally observe O’Connell for the preceding 35 to 45 minutes;

therefore, a refusal was noted.

A refusal was reported to the Department, which imposed the mandatory

one-year license suspension pursuant to 75 Pa. C.S. § 1547(b). O’Connell appealed to

the court of common pleas, which accepted his testimony as credible and held that

O’Connell’s refusal was based upon the mistaken belief that he had the right to speak

with an attorney prior to submitting to the breathalyzer test. The court of common

pleas held that O’Connell could not have made a knowing refusal because his decision

was founded upon an understanding of a right which does not exist at law.

The Department appealed to this Court, and we agreed that insufficient

evidence existed to support the lower court’s determination. The Supreme Court

reversed. It held that there was evidence in the record to support O’Connell’s position

that he was misled into thinking that he had a right to speak to his attorney before taking

the breathalyzer test. The Supreme Court specifically explored O’Connell’s contention

that the entire controversy resulted from the sequential order in which the Miranda

7

warnings were given, noting that “this whole controversy arose because the request to

take the breathalyzer test came hot on the heels of the Miranda questioning.” Id. at

876. It explained:

The problem in this case, and many similar cases that have

arisen, is that these requests to take breathalyzer tests take

place as part of the investigation conducted by police in

regards to a drunk driving charge which is criminal in nature.

The police proceed with the Miranda warnings and at some

point (usually when the driver asks to see his lawyer) stop

questioning and abruptly change “hats” and ask the driver to

submit to the breathalyzer test. If the arrestee hesitates and

attempts to exercise his Miranda right by asking for a lawyer

or asking to make a phone call, a refusal is recorded.

This state of affairs is unacceptable because it is fraught with

pitfalls for the arrestee who is not trained to recognize the

difference between a civil or criminal investigation and

becomes a source of accusation of manipulation by the police

over confused individuals who are suspected of having

dulled senses.

The law has always required that the police must tell the

arrestee of the consequences of a refusal to take the test so

that he can make a knowing and conscious choice. See,

Everhart v. Commonwealth, . . . 420 A.2d 13 (1980); Ford v.

Department of Transportation, [Director of] Bureau of

Traffic Safety, . . . 406 A.2d 240 (1979).

Accordingly, where an arrestee requests to speak to or call an

attorney, or anyone else, when requested to take a

breathalyzer test, we insist that in addition to telling an

arrestee that his license will be suspended for one year if he

refuses to take a breathalyzer test, the police instruct the

arrestee that such rights are inapplicable to the breathalyzer

test and that the arrestee does not have the right to consult

with an attorney or anyone else prior to taking the test.

8

An arrestee is entitled to this information so that his choice

to take a breathalyzer test can be knowing and conscious and

we believe that requiring the police to qualify the extent of

the right to counsel is neither onerous nor will it

unnecessarily delay the taking of the test.

Since the course of conduct of the police creates the

confusion in these cases, it is appropriate to place the duty on

them to clarify the extent of the right of counsel when asking

arrestees to take breathalyzer tests thereby insuring that those

arrestees who indicate their confusion over their Miranda

rights, are not being misled into making uninformed and

unknowing decisions to take the test.

Id. at 877-88 (footnotes omitted)

B. Post-O’Connell Case Law

Shortly after O’Connell was decided, the Department included the

“O’Connell” warnings in Form DL-26, which required police officers to inform a

motorist who is arrested for driving under the influence that his Miranda rights do not

apply to chemical testing because the request to submit to chemical testing is a civil

proceeding and not a criminal proceeding and the right to counsel only applies in

criminal proceedings.5 Since that time, for over 36 years, this Court and our Supreme

Court have consistently and routinely held that the warnings provided on the DL-26

Form satisfy as a matter of law the minimum requirements for O’Connell warnings. In

Department of Transportation, Bureau of Driver Licensing v. Ingram, 648 A.2d 285,

5

In June 2016, after the United States Supreme Court’s decision in Birchfield v. North Dakota,

579 U.S. 438 (2016), the Department amended Form DL-26 and created Form DL-26B, the version

of the form at issue here. The amendment removed any mention of enhanced criminal penalties for

refusing a blood test in response to the U.S. Supreme Court’s decision in Birchfield. Birchfield held

that coercing a blood draw and compelling a defendant to testify/provide blood evidence against

himself or face jail time is unconstitutional. The language about a motorist’s right to counsel before

submitting to a blood test was not changed.

9

294-95 (Pa. 1994), the Supreme Court interpreted its decision in O’Connell and held

“that a proper O’Connell warning must include the following information: first, a

motorist must be informed that his driving privileges will be suspended for one year if

he refuses chemical testing; second, the motorist must be informed that his Miranda

rights do not apply to chemical testing.” 648 A.2d at 294-95. Thereafter, the Supreme

Court decided Department of Transportation, Bureau of Driver Licensing v. Scott, 684

A.2d 539 (Pa. 1996). At issue in Scott was whether a motorist who had been provided

with a legally sufficient O’Connell warning could still establish that he was so confused

regarding the interplay between the Miranda rights and the Implied Consent Law that

he did not knowingly or consciously refuse to submit to chemical testing. In rejecting

the argument, the Supreme Court summarized the following principles that had been

established:

(1) the provisions of the Implied Consent Law which

require a motorist to submit to chemical sobriety testing or

face the temporary loss of driving privileges have the

potential to create confusion for the motorist; (2) in order to

guarantee that a motorist makes a knowing and conscious

decision on whether to submit to testing or refuse and accept

the consequence of losing his driving privileges, the police

must advise the motorist that in making this decision, he does

not have the right to speak with counsel, or anyone else,

before submitting to chemical testing, and further, if the

motorist exercises his right to remain silent as a basis for

refusing to submit to testing, it will be considered a refusal

and he will suffer the loss of his driving privileges; (3) the

duty of the officer to provide the O’Connell warnings as

described herein is triggered by the officer’s request that the

motorist submit to chemical sobriety testing, whether or not

the motorist has first been advised of his Miranda rights.

Scott, 684 A.2d at 545. The Supreme Court went on to clarify that “once a motorist

has been properly advised of his O’Connell warnings, a refusal to submit to chemical

10

testing under the terms of the Implied Consent Law will not be excused as unknowing

on the basis of the motorist’s subjective belief[s] regarding the interplay between the

Implied Consent Law and his Miranda rights.” Id. at 546. The Supreme Court

explained, “[o]nce an officer provides O’Connell warnings to a motorist, the officer

has done all that is legally required to ensure that the motorist has been fully advised

of the consequences of refusing to submit to chemical testing.” Id.

Following Ingram and Scott, this Court has faithfully held that by reading

the DL-26 Form (or DL-26B Form), the officer has discharged his duty under the law.

We have held that the reading of a DL-26 Form sufficiently informs a driver, who either

hears the warnings or reads them herself, that if she refuses to submit to chemical

testing, her operating privilege will be suspended. See Hirsch v. Department of

Transportation, Bureau of Driver Licensing, 702 A.2d 375, 377 (Pa. Cmwlth. 1997)

(officer performed his duty under O’Connell when he read motorist the warnings from

the DL-26 Form); Quigley v. Department of Transportation, Bureau of Driver

Licensing, 965 A.2d 349, 353-54 (Pa. Cmwlth. 2009) (where the licensee claimed that

the warnings were ambiguous, we noted that the licensee never told the officer that she

thought the warning advised her that her operating privilege would be suspended only

if she had prior refusals or convictions; rather, the only reason she gave for not

complying was that she wanted to call her husband first); Yourick v. Department of

Transportation, Bureau of Driver Licensing, 965 A.2d 341, 345 (Pa. Cmwlth. 2009)

(en banc) (the DL-26 Form is sufficient as a matter of law to meet the warning

requirement under Section 1547(b) of the Vehicle Code, and it appropriately apprised

motorist that her license would be suspended if she refused chemical testing); Park v.

Department of Transportation, Bureau of Driver Licensing, 178 A.3d 274, 281 (Pa.

Cmwlth. 2018) (a reading of the DL-26 Form sufficiently apprises the driver, either

11

hearing or reading it, that if she refuses to submit to the chemical test, her operating

privilege will be suspended).

Even in the face of these cases, it is Licensee’s position that the DL-26B

Form has done nothing to clarify the confusion identified in O’Connell. He submits

that “[w]here a motorist is advised that he has a right to counsel and within moments

of being advised of those rights is then told that those rights do not apply are (sic) what

equates to per se confusion.” (Licensee’s Br. at 16.)

At the outset, we must address Licensee’s right to argue confusion in the

first place. By arguing that the sequence of the warnings (Miranda then DL-26B Form

warnings) is per se confusing, Licensee appears to suggest that he did not have to prove

confusion about his rights to establish a prima facie defense. To the extent that he is

raising such an argument, we reject it. First, it is critical that Licensee did not testify

or present any evidence that he was confused by the order in which the Miranda and

DL-26B warnings were read and that the Trooper did not testify that Licensee was

confused. During summation, Licensee’s counsel simply argued that the Miranda

warnings and the DL-26B Form per se create confusion. He never argued that Licensee

was confused. From an appellate standpoint, that is problematic. Even on appeal,

Licensee does not argue that he was confused. Instead, he asks the Court to presume

as a matter of law that confusion exists, regardless of whether he was confused or not.

However, without the assertion that he was confused, Licensee is arguing this legal

point in a vacuum. If he had demonstrated in the trial court that he was confused, and

then argued here that the order in which the warnings were read was per se confusing,

then perhaps he would have presented an issue we could decide. However, without

any factual support that he was, in fact, confused by the order in which the warnings

were read, we cannot simply render a decision out of the blue that the warnings are

confusing. That would be the equivalent of asking us to issue an advisory opinion in

12

the abstract based on hypothetical or speculative facts, which we cannot do. See, e.g.,

Pittsburgh Palisades Park, LLC, v. Commonwealth, 888 A.2d 655, 659 (Pa. 2005)

(“The courts in our Commonwealth do not render decisions in the abstract or offer

purely advisory opinions[.]”).

By way of example, in the per se negligence context, a plaintiff cannot

recover under a negligence per se theory unless it can be proven that such negligence

is the “proximate” or “legal” cause of the injury. Ford v. Philadelphia Housing

Authority, 848 A.2d 1038, 1050 n.11 (Pa. Cmwlth. 2004). A litigant cannot come to

court, without any evidence of injury, and ask the court to decide as a matter of law

that a particular instance of conduct was negligent per se and that, therefore, the court

must presume that some sort of injury occurred as a result. To the contrary, the litigant

must allege an injury before he raises the negligence per se argument.

Here, Licensee did not allege any confusion that was attributable to the

Trooper’s warnings. Licensee cannot now argue that the juxtaposition of the warnings

are per se confusing if there is no evidence that he was confused. Accordingly, we find

Licensee’s assertions regarding his confusion have been waived for failure to present

that evidence before the trial court. It would be inappropriate for us to issue an advisory

opinion.

To the extent Licensee is arguing that the Commonwealth could not

possibly prove his knowing and conscious refusal because the DL-26B Form is per se

confusing, we must reject that argument, as well. First, every case6 upon which

Licensee relies to support his contention pre-dates O’Connell, Ingram, and Scott.

6

See Department of Transportation, Bureau of Driver Licensing v. Martinez, 582 A.2d 1160

(Pa. Cmwlth. 1990); Department of Transportation, Bureau of Driver Licensing v. Fiester, 583 A.2d

31 (Pa. Cmwlth. 1990); Commonwealth v. McFadden, 559 A.2d 924 (Pa. 1989).

13

Those important Supreme Court cases have already endorsed the DL-26B Form

warnings and held that the warnings contained in the DL-26B Form satisfy, as a matter

of law, the minimum requirements under Vehicle Code Section 1547(b).

Here, by attacking the clarity of the Miranda warnings relative to the

warnings contained in the DL-26B Form, Licensee has raised no new or novel

argument that has not already been addressed by Scott and its progeny. The fact

remains that the officer must, and did here, state that the Miranda warnings do not

apply to the request to submit to the blood test, and Licensee did not have the right to

speak to an attorney or anyone else before deciding whether to submit to testing.

Licensee’s attempt to conjure some confusion because of the sequence of the warnings

is unconvincing. Thus, for these reasons, Licensee’s first claim must fail.

2.

Next, Licensee contends that a one-year disqualification of his

commercial operating privilege for refusing chemical testing constitutes cruel and

unusual punishment. We disagree.

As a commercial driver,7 Licensee is also subject to the implied consent

requirements for commercial motor vehicle drivers found in Section 1613 of the

Commercial Driver’s Act, 75 Pa. C.S. § 1613. Upon receipt of a report of a chemical

7

A “commercial driver” is defined as “[a] person who is either a commercial driver license

holder as defined in section 1603 (relating to definitions) or who is driving a commercial motor

vehicle.” 75 Pa. C.S. § 102 (relating to definitions). A “Commercial driver’s license” or “CDL” is

defined as “[a] driver’s license issued in accordance with the requirements of this chapter authorizing

a person 18 years of age or older to drive a class of commercial motor vehicle.” 75 Pa. C.S. § 1603

(relating to definitions). A “Commercial driver’s license holder” or “CDL holder” is defined as “[a]

person who has been issued a commercial driver’s license or a commercial driver learner’s permit.”

Id.

14

test refusal, the Department shall disqualify the person who is the subject of the report

for a period of one year. 75 Pa. C.S. § 1613(d.1).8

In the context of a CDL disqualification, our courts have acknowledged

that even though operating a motor vehicle is a privilege and not a right, a lifetime

disqualification of an individual’s CDL can cross the line from a merely remedial civil

sanction to a “penal” sanction. In Sondergaard v. Department of Transportation,

Bureau of Driver Licensing, 65 A.3d 994 (Pa. Cmwlth. 2013), the trial court sustained

the appeal of a CDL holder whose commercial driving privilege had been disqualified

under Section 1611(c) for life after he was convicted of his second violation.

Reversing, we explained that “in the context of a lifetime disqualification, the effect of

Section 1611(c) of the Commercial Driver’s Act is penal.” Id. at 997 (emphasis added).

This is because CDL holders disqualified for life under Section 1611(c) not only

temporarily lose their privilege to operate a motor vehicle, but these CDL holders also

“lose the right to practice their chosen profession.” Id. (citing Johnson v. Allegheny

Intermediate Unit, 59 A.3d 10, 20-21 (Pa. Cmwlth. 2012)). Compare Chappell v.

Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 431 C.D.

2022, filed Oct. 11, 2024)9 (Department’s penalty of lifetime disqualification of CDL

8

Section 1613(d.1) of the Commercial Driver’s Act provides, in part,

(d.1) Disqualification for refusal.--Upon receipt of a report of test

refusal, the [D]epartment shall disqualify the person who is the subject

of the report for the same period as if the [D]epartment had received a

report of the person's conviction for violating one of the offenses listed

in section 1611(a) (relating to disqualification).

75 Pa. C.S. § 1613(d.1).

9

Under Section 414(a) of this Court’s Internal Operating Procedures, an unreported opinion

may be cited for its persuasive value. 210 Pa. Code § 69.414(a).

15

was not grossly disproportionate to driver’s two offenses of DUI and, thus, penalty did

not violate Eighth Amendment’s prohibition against cruel and unusual punishment).

Here, Licensee was not subjected to a lifetime disqualification of his CDL

privileges. Rather, he has been subjected to a one-year suspension of said privilege.

To constitute cruel and unusual punishment, a sanction must be penal in nature. “The

severity of this sanction (lifetime disqualification) transforms what is a remedial law

in the context of a one-year disqualification, into a penal law.” Sondergaard, 65 A.3d

at 997. Our courts have not found that a one-year CDL disqualification imposed by 75

Pa. C.S. § 1613(d.1) rises to the level of a penal sanction. Instead, our courts have

routinely upheld one-year CDL disqualifications as a remedial sanction. See, e.g.,

Cummings v. Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth.,

No. 829 C.D. 2010, filed Jan. 7, 2011) (unreported); Hyer v. Department of

Transportation, Bureau of Driver Licensing, 957 A.2d 807 (Pa. Cmwlth. 2008). Based

on the legal precedent discussed above, we do not believe that the one-year CDL

suspension imposed upon Licensee in the instant matter rises to the level of a “penal”

action or criminal punishment that is subject to a cruel and unusual analysis.

Accordingly, the trial court correctly denied Licensee’s statutory appeal

and held that 75 Pa. C.S. § 1613(d.1) is not unconstitutional.

The orders of the trial court are affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Royce Brian Carter, : CONSOLIDATED CASES

Appellant :

v. : No. 1102 C.D. 2023

: No. 1103 C.D. 2023

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

ORDER

AND NOW, this 3rd day of March, 2025, the August 29, 2023 orders

of the Court of Common Pleas of Dauphin County are hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge