G. Rimer-Klak v. Bureau of Driver Licensing

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Rimer-Klak :

:

v. : No. 875 C.D. 2021

: Submitted: March 8, 2024

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

:

Appellant :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: May 9, 2024

The Commonwealth of Pennsylvania, Department of Transportation,

Bureau of Driver Licensing (DOT) appeals from the June 30, 2021 order of the

Montgomery County Court of Common Pleas (trial court) that sustained the

statutory appeal of Gregory Rimer-Klak (Licensee) and rescinded the 12-month

suspension of his operating privilege for driving under the influence (DUI) because

DOT erroneously concluded that it was his second driving under the influence (DUI)

offense. The trial court also opined that DOT waived its legal argument because it

failed to object to, or clearly assert, the inapplicability of Commonwealth v.

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

284 A.3d 227 (Pa. Super. 2022), before the trial court. On appeal,1 DOT argues that

it adequately raised the issue of the inapplicability of Chichkin before the trial court,

and that the issue has not been waived. DOT further argues that the suspension was

warranted because Licensee’s first DUI, which was disposed of through the

Accelerated Rehabilitative Disposition (ARD) program, is considered a “prior

offense” for license suspension purposes. After careful review, we reverse.

On March 20, 2012, Licensee was accepted into the Montgomery

County ARD Program based on a charge of DUI-high rate of alcohol (1st offense)

in violation of Section 3802(b) of the Vehicle Code, 75 Pa. C.S. §3802(b),2

stemming from an incident that occurred on November 6, 2011. Reproduced Record

(R.R.) at 44a. As a result of his acceptance into ARD, and in accordance with

Section 3807(d)(2) of the Vehicle Code, 75 Pa. C.S. §3807(d)(2) (relating to

mandatory suspension of operating privileges), DOT suspended Licensee’s driving

privilege for 30 days. R.R. at 41a-43a. Licensee completed the suspension, and

DOT restored his driving privilege effective December 8, 2012. Id. at 40a.

On August 14, 2020, Licensee was convicted of DUI-general

impairment (1st offense) in violation of Section 3802(a)(1) of the Vehicle Code, 75

1

By September 14, 2023 Order, this Court precluded Licensee from filing a brief because

he failed to file a brief as required by this Court’s May 5, 2023 Order.

2

Section 3802(b) provides:

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 at least 0.10% but less than 0.16% within two hours after

the individual has driven, operated or been in actual physical control

of the movement of the vehicle.”

75 Pa. C.S. §3802(b).

2

Pa. C.S. §3802(a)(1),3 as an ungraded misdemeanor for an offense that occurred on

September 28, 2019, and sentenced under Section 3804(a)(1) of the Vehicle Code,

75 Pa. C.S. §3804(a)(1).4 R.R. at 38a-39a. As a result of this DUI conviction, DOT

informed Licensee, by notice mailed on August 25, 2020, that it was suspending his

driving privilege for one year, effective September 29, 2020, pursuant to Section

3804(e)(2)(i) of the Vehicle Code, 75 Pa. C.S. §3804(e)(2)(i), which imposes a 12-

3

Section 3802(a)(1) provides that “[a]n 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).

4

Section 3804(a)(1) of the Vehicle Code provides as follows:

(a) General impairment.—Except as set forth in subsection (b) or

(c), an individual who violates Section 3802(a) (relating to driving

under the influence of alcohol or controlled substance) shall be

sentenced as follows:

(1) For a first offense, to:

(i) undergo a mandatory minimum term of six months’

probation;

(ii) pay a fine of $300;

(iii) attend an alcohol highway safety school approved by

[DOT]; and

(iv) comply with all drug and alcohol treatment requirements

imposed under sections 3814 (relating to drug and alcohol

assessments) and 3815 (relating to mandatory sentencing.)

75 Pa. C.S. §3804(a)(1).

3

month suspension.5 R.R. at 32a-37a. Licensee appealed his license suspension to

the trial court, and a de novo hearing was held on June 30, 2021.6

At the hearing, DOT’s counsel explained the contents of DOT’s

certified packet of documents, including Exhibit C-1 (Licensee’s Certified Driving

Record), which included the August 25, 2020 notice of suspension resulting from

Licensee’s conviction under Section 3802(a)(1) of the Vehicle Code, and a DL-21

Form, noting that Licensee was convicted of DUI as a first offense, ungraded

misdemeanor and sentenced under Section 3804(a)(1) of the Vehicle Code. R.R. at

26a-27a; 33a-38a. DOT’s counsel also pointed to other documents in the packet

showing that Licensee had previously accepted ARD for his violation of Section

3802(b) of the Vehicle Code and served a license suspension based thereon. Id. at

26a-27a, 40a-50a. Licensee, appearing pro se, did not object to the admission of his

driving record, and DOT’s Exhibit C-1 was admitted into evidence. Id. at 22a-23a,

27a.

As to the DUI suspension at issue, DOT’s counsel explained that

Licensee’s certified driving record included a suspension for the August 14, 2020

DUI conviction because it was not Licensee’s first offense and that Licensee, “had

5

Section 3804(e)(2)(i) of the Vehicle Code provides that “[s]uspension 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.”

75 Pa. C.S. §3804(e)(2)(i).

6

Licensee also appealed the one-year suspension of his operating privilege imposed in

accordance with Section 1547 of the Vehicle Code, 75 Pa. C.S. § 1547 (relating to chemical testing

to determine amount of alcohol or controlled substance), for his chemical test refusal on September

28, 2019. R.R. at 51a-56a. The trial court consolidated the appeals and considered this appeal at

the June 30, 2021 de novo hearing. After hearing testimony, the trial court denied Licensee’s

appeal of this suspension. R.R. at 24a-25a. Because Licensee did not appeal this suspension to

our Court, it is not before us, and we need not discuss it further.

4

a previous DUI in 2011, I believe, Your Honor.”7 R.R. at 27a. Licensee confirmed

his previous DUI, to which the trial court responded, “[s]o it’s not really a first

offense.” Id. Licensee then objected to the suspension, arguing that his August 14,

2020 DUI conviction should be treated as a first offense because his previous DUI

offense resulted in ARD which should not be counted as a prior offense under

Chichkin. Id. at 27a-28a. Licensee explained that his public defender brought the

Chichkin case to his attention. Id at 27a. The trial court, DOT’s counsel, and

Licensee then engaged in the following exchange.

THE COURT: Why is that? I’m not asking you

[Licensee]. I’m asking [DOT] counsel here. Why under

that case, why didn’t that apply to him?

[DOT COUNSEL]: Your Honor, it may have been before

the case came down. I don’t have the date of when the

case was decided, but this took place on September 28 of

– well, the DUI was August 1 – I’m sorry. The DUI took

place on September 28 of 2019 and he pleaded guilty on

August 14 of 2020.

THE COURT: All right, I’m going to grant his appeal on

the DUI part for the suspension related, so that’s going to

be taken away, but you still have the one-year for the

refusal. All right?

[DOT COUNSEL]: Do you want me to submit the

certified record for that case?

THE COURT: Yes, why don’t you because I don’t have

it.

[DOT COUNSEL]: It would be C-1, the same and that

would be the certified record showing the DUI suspension.

7

Licensee’s prior DUI stemmed from an incident that occurred on November 6, 2011, for

which he was accepted into ARD on March 20, 2012. R.R. at 44a.

5

(Certified Certification and Attestation marked []DOT’s

Exhibit C-1 for identification and received into evidence.)

THE COURT: All right, I understand. All right, is there

anything else for the Court’s consideration?

[DOT COUNSEL]: Not for [this Licensee’s case].

THE COURT: [Licensee], anything else for the Court?

[LICENSEE]: No, Your Honor.

R.R. at 28a-29a. Accordingly, the trial court entered an order dated June 30, 2021,

docketed on July 1, 2021, sustaining Licensee’s appeal, and rescinding his license

suspension for the DUI conviction. Id. at 62a. DOT then appealed the trial court’s

order to this Court. Id. at 63a-67a.

The trial court ordered DOT to submit a Statement of Errors

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) (1925(b) Statement). R.R.

at 68a. DOT submitted its 1925(b) Statement dated August 10, 2021. Id. at 69a-

73a. DOT argued that the trial court erred in ignoring Section 3806(a) of the Vehicle

Code which includes ARD in the definition of “prior offense.” Id. at 69a-70a. DOT

further argued that the trial court erred when it applied Chichkin to Licensee’s license

suspension, which is a civil proceeding, when Chichkin held that Section 3806(a) of

the Vehicle Code was unconstitutional as applied to criminal sentencing. Id. at 70a-

71a.

On January 25, 2023, the trial court issued a memorandum opinion

explaining the reasoning for its decision.8 As to waiver, the trial court acknowledged

that DOT argued in its 1925(b) Statement that because Chichkin is a criminal case,

8

Although the heading of the Trial Court Opinion includes the date of August 30, 2021,

the Trial Court Opinion was docketed on January 25, 2023. R.R. at 1a, 74a, 80a. The Trial Court

Opinion dated January 25, 2023, may be found in the Reproduced Record at 74a-80a.

6

it does not apply to a civil license suspension. R.R. at 76a. The trial court concluded

that, “[a]t the hearing, [DOT] did not object to or challenge the application of

Chichkin. When this court asked [DOT] for its response to its application, [DOT]

appeared to be unprepared and provided incoherent reasoning which does not match

the argument now offered in its [1925(b)] Statement.” Id. The trial court quoted the

above exchange at the hearing between Licensee, DOT, and the court. Id. at 76a-

77a. The trial court concluded that because DOT “fail[ed] to make an objection, the

present argument that [DOT] provides in its [1925(b)] Statement is inconsistent with

any reasoning [DOT] attempted to offer at the hearing.” Id. at 77a. The trial court

cited Pa.R.A.P. 302 and case law interpreting the rule and concluded that because

DOT did not offer the argument at the hearing that Chichkin should not apply to a

civil license suspension, it should be “dismissed” as a “waived issue.” Id. at 78a.

The trial court then proceeded to discuss the merits of Licensee’s

appeal. The trial court found that Licensee pleaded guilty to DUI on August 14,

2020, for which he was sentenced to six months’ probation, a $300 fine, and costs.

R.R. at 75a. The trial court explained that it

specifically placed a handwritten note on the sentencing

sheet stating that “due to [Licensee’s] prior DUI being an

ARD disposition, this DUI will be treated as a first

offense.” Sentencing Sheet, 8/14/20, pg. 1. Under

[Section 3804(e)(2)(iii) of the Vehicle Code,] 75 Pa. C.S.

§3804(e)(2)(iii), “[t]here shall be no suspension for an

ungraded misdemeanor under [S]ection 3802(a) where the

person is subject to the penalties imposed in subsection (a)

and the person has no prior offense.” However, contrary

to this court’s sentence which imposes no additional

suspension, [DOT] imposed a second suspension on

[Licensee] for an ungraded misdemeanor in accordance

with the requirements of [Section 3804(e)(2)(i) of the

Vehicle Code,] 75 Pa. C.S. §3804(e)(2)(i) of “12 months

[suspension] for an ungraded misdemeanor or

7

misdemeanor of the second degree under this chapter,”

except as provided for in subparagraph (iii) stated above.

Id. The trial court rejected DOT’s argument that Chichkin does not apply to civil

license suspensions as “unfounded.” Id. at 78a. The trial court concluded that DOT

“incorrectly interprets the holding of Chichkin more narrowly than was asserted in

the opinion.” Id. The trial court further concluded that Section 3806(a) of the

Vehicle Code, held as unconstitutional as applied in Chichkin, is not a criminal

statute, but part of the Vehicle Code. Id. The trial court explained:

This trial court’s decision is, indeed, contrary to [Section

3806(a) of the Vehicle Code,] 75 Pa. C.S. §3806(a), but it

is consistent with the Superior Court’s recent holding [in

Chichkin] that this rule is unconstitutional as applied to

acceptance of ARD. The argument regarding whether a

criminal case holding may be applied to a civil matter is

irrelevant, as the holding addresses the constitutionality of

a statute that is not criminal and that is being relied on in

this present case. Accordingly, [DOT’s] newly introduced

argument that Chichkin is not applicable because it is a

criminal case should be dismissed.

Id. at 79a. The trial court further rejected DOT’s original reasoning that Chichkin

presents an issue of retroactivity, distinguishing Commonwealth v. Gill, 261 A.3d

544 (Pa. Super. 2021). R.R. at 79a-80a. The trial court concluded that, “[b]ased on

the evidence presented and the lack of coherent argument from [DOT], this court

sustained [Licensee’s] appeal regarding the DUI guilty plea portion of the

suspension.” Id. at 75a. Accordingly, based on the above, and relying on Chichkin,

the trial court sustained Licensee’s appeal and overturned Licensee’s suspension.

DOT then appealed to this Court.9

9

Our review is limited to determining whether the findings of fact were supported by

substantial evidence, whether an error of law was committed, or whether the trial court abused its

discretion. Cole v. Department of Transportation, Bureau of Driver Licensing, 909 A.2d 900, 902

n.5 (Pa. Cmwlth. 2006). In addition:

(Footnote continued on next page…)

8

DOT first argues that it did not waive the issue concerning Licensee’s

suspension based on the August 14, 2020 DUI conviction, because it maintained its

position throughout Licensee’s statutory appeal that this conviction was a second

offense which sufficiently placed the trial court on notice of its position. DOT argues

that its counsel at the hearing, Attorney Viglione, correctly stated that DOT treated

Licensee’s acceptance of ARD for violating Section 3802(b) of the Vehicle Code as

a prior offense for purposes of imposing the 12-month suspension, pursuant to

Section 3804(e)(2)(i) of the Vehicle Code. DOT further argues that it correctly

distinguished Chichkin in its 1925(b) Statement. In support of its nonwaiver

argument, DOT cites Cesare v. Department of Transportation, Bureau of Driver

Licensing, 16 A.3d 545 (Pa. Cmwlth. 2011), and Ford v. Department of

Transportation, Bureau of Driver Licensing, 776 A.2d 367 (Pa. Cmwlth. 2001), for

the proposition that it may raise new arguments on appeal so long as the arguments

relate to the same issue.

“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.”

Ferguson v. Department of Transportation, Bureau of Driver Licensing, 267 A.3d 628, 633 (Pa.

Cmwlth. 2021), appeal granted, 280 A.3d 859 (Pa. 2022) (citations omitted).

9

After careful review of the entire record, including the trial transcript

and DOT’s 1925(b) Statement, we conclude that the trial court erred in finding that

DOT waived the issue of whether Licensee’s ARD constituted a prior offense for

purposes of license suspension under Section 3806(a) of the Vehicle Code. We

agree with DOT that it sufficiently raised the issue before the trial court, by referring

to Licensee’s driving record, admitted without objection, and through the trial

court’s acknowledgement of its argument that the August 14, 2020 DUI conviction

was “not really a first offense.” R.R. at 27a. Further, we do not agree with the trial

court that DOT failed to object at all to the application of Chichkin at the hearing.

Although DOT’s response at the hearing regarding the application of Chichkin

appeared to be incomplete and focused on the timing of events, and it presented a

different argument to distinguish Chichkin its 1925(b) Statement, a change in legal

argument does not result in a waiver of the issue.

Pa.R.A.P. 302(a) provides that “[i]ssues not raised in the trial court are

waived and cannot be raised for the first time on appeal.” In Wert v. Department of

Transportation, Bureau of Driver Licensing, 821 A.2d 182 (Pa. Cmwlth. 2003), our

Court declined to find waiver when a licensee raised federal constitutional claims on

appeal that he did not raise at a hearing. This Court opined:

We do not believe that Pa.R.A.P. 302(a) requires a litigant

to make identical arguments at each stage of his case. The

issue must be preserved, but this does not mean every

argument is written in stone at the initial stage of litigation.

Doe Spun, Inc. v. Morgan, [502 A.2d 287 (Pa. Cmwlth.

1985)] (permitting appellants to add an additional citation

to their argument that they did not raise before the trial

court because they raised the issue generally); In re King’s

Estate, [130 A.2d 245 (Pa. Super. 1957)] (noting that the

Court may affirm a decree for reasons which were not

raised before, or reasons not raised on appeal). Thus, logic

dictates that an appellant can raise new arguments so long

10

as they relate to the same issue. Here, [the l]icensee raised

ARD, extrapolation evidence[,] and successive

suspensions, as new reasons to support his privileges and

immunities claim.

Wert, 821 A.2d at 186 n.9. See also Cesare, 16 A.3d at 550-51 (holding that DOT

did not waive the issue of the licensee’s lack of prejudice due to pending revocations

or suspensions when it argued throughout the proceedings that the licensee was not

prejudiced by DOT’s delay). Here, DOT argued throughout the proceedings the

issue that Licensee’s suspension was properly imposed because his ARD constituted

a prior offense for purposes of a license suspension under Section 3806(a) of the

Vehicle Code. DOT objected to the application of Chichkin at the hearing, albeit

inartfully, and it presented a different legal argument against the application of

Chichkin in its 1925(b) Statement, giving the trial court ample opportunity to analyze

the legal issues presented, which it did in its opinion. Therefore, we conclude that

the trial court erred by finding that DOT waived the issue.

As to the merits, DOT argues that the trial court committed an error of

law when it determined that Chichkin barred Licensee’s suspension when Chichkin

has been overruled. We agree. Section 3802 of the Vehicle Code provides various

offenses relating to DUI. Section 3804 of the Vehicle Code sets forth both criminal

and civil consequences for convictions of DUI offenses under Section 3802. Section

3804(e) of the Vehicle Code specifically governs the “[s]uspension of operating

privileges upon conviction” and provides, in relevant part:

(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; or

11

(ii) an offense which is substantially similar to an

offense enumerated in [S]ection 3802 reported to

[DOT] under Article III of the compact in [S]ection

1581 (relating to Driver’s License Compact).

(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.

(ii) 18 months for a misdemeanor of the first degree

or felony of the third degree under this chapter.

(iii) There shall be no suspension for an ungraded

misdemeanor under [S]ection 3802(a) where the

person is subject penalties provided in subsection

(a) and the person has no prior offense.

75 Pa. C.S. §3804(e).

The exception set forth in Section 3804(e)(2)(iii) of the Vehicle Code

applies if three conditions are met:

First, the licensee must be convicted of violating 75

Pa. C.S. §3802(a)(1)[,] as an ungraded misdemeanor.

Second, the licensee must be subject to the penalties

contained in 75 Pa.C.S. §3804(a). Third, the licensee must

not have a “prior offense” as defined in Section 3806 of

the Vehicle Code.

Becker v. Department of Transportation, Bureau of Driver Licensing, 186 A.3d

1036, 1037-38 (Pa. Cmwlth. 2018). Here, it is undisputed that Licensee was

convicted of violating Section 3802(a)(1) of the Vehicle Code as an ungraded

misdemeanor, and that he was sentenced under Section 3804(a)(1) of the Vehicle

Code. Therefore, whether Licensee can avoid the 12-month license suspension rests

12

solely on whether his prior acceptance of ARD counts as a “prior offense” within

the meaning of Section 3806 of the Vehicle Code.

Section 3806(a)(1), (b)(1)(i) and (ii) of the Vehicle Code provides, in

relevant part:

(a) General rule.—Except as set forth in subsection (b),

the term “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 (relating to driving

under the influence of alcohol or controlled substance);

****

(b) Timing.—

(1) For purposes of [S]ection[] … 3804 (relating to

penalties) …, the prior offense must have occurred:

(i) within 10 years prior to the date of the offense

for which the defendant is being sentenced; or

(ii) on or after the date of the offense for which the

defendant is being sentenced.

75 Pa. C.S. §3806(a)(1), (b)(1)(i) and (ii).

The trial court concluded that Licensee’s acceptance into an ARD

program could not be construed as a prior offense according to Chichkin, and that

the distinction between criminal and civil penalties was not relevant. We note,

however, that the application of Chichkin to civil license suspension cases was

recently decided by this Court in Ferguson v. Department of Transportation, Bureau

of Driver Licensing, 267 A.3d 628 (Pa. Cmwlth. 2021), appeal granted, 280 A.3d

13

859 (Pa. 2022),10 transferred to and stay of suspension granted (Pa., No. 73 MAP

2022, filed July 7, 2022).11

In Ferguson, the licensee was charged with DUI–general impairment

in violation of Section 3802(a)(1) of the Vehicle Code (an ungraded misdemeanor)

in 2012, and was accepted into an ARD program, which he successfully completed.

In 2020, the licensee pleaded guilty to a second DUI–general impairment charge in

violation of Section 3802(a)(1) of the Vehicle Code (also an ungraded

misdemeanor). Thereafter, DOT notified him that his driving privilege was

suspended for 12 months pursuant to Section 3804(e)(2)(i) of the Vehicle Code. The

licensee appealed to the trial court, but his appeal was ultimately denied.

On appeal to this Court, the licensee argued that, pursuant to Chichkin,

his prior ARD cannot be considered a prior offense under Section 3806(a)(1) of the

Vehicle Code (defining acceptance into ARD as a prior offense), where he

10

Our Supreme Court granted allocatur in Ferguson 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 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?

See Ferguson v. Department of Transportation, Bureau of Driver Licensing, 280 A.3d 859 (Pa.

2022), transferred to and stay of suspension granted (Pa., No. 73 MAP 2022, filed July 7, 2022).

11

We acknowledge that the Supreme Court on appeal may overturn this Court’s

determination regarding the use of ARDs as “prior offenses” in license suspension cases. Until it

does, this Court’s determination in Ferguson remains the law of the Commonwealth. See

Germantown Cab Co. v. Philadelphia Parking Authority, 27 A.3d 280, 283 (Pa. Cmwlth. 2011)

(“It is axiomatic that a decision of an appellate court remains binding precedent, even if it has been

appealed, unless and until it is overturned by the Pennsylvania Supreme Court.”).

14

successfully completed his ARD, which involved no proof or admission of guilt, and

the DUI charge was dismissed. Thus, the licensee claimed that DOT had no

authority to impose a 12-month suspension because he met the license suspension

exception set forth in Section 3801(e)(2)(iii) of the Vehicle Code.

This Court explained that although the ARD program is criminal in

nature, a license suspension resulting from ARD is civil in nature; thus, it is a

collateral consequence of the criminal proceeding. We stated:

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 (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.

Ferguson, 267 A.2d at 632.

Moreover, and more importantly, the Superior Court has expressly

overruled its prior holding in Chichkin in 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.”).

15

Based on the foregoing, we conclude that the trial court erred when it

rescinded Licensee’s suspension based on Chichkin.12 See also Owens v.

Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1268

C.D. 2020, filed September 30, 2022); Hazlett v. Department of Transportation,

Bureau of Driver Licensing (Pa. Cmwlth., No. 1007 C.D. 2020, filed September 30,

2022); Kris v. Department of Transportation, Bureau of Driver Licensing (Pa.

Cmwlth., No. 450 C.D. 2021, filed November 18, 2022); Bollinger v. Department of

Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 1125 C.D. 2020, filed

January 20, 2023); Clingan v. Department of Transportation, Bureau of Driver

Licensing (Pa. Cmwlth., No. 231 C.D. 2021, filed August 29, 2023) (all reversing

the trial court and reinstating the licensee’s suspension based on the inapplicability

of Chichkin, and holding that the licensee’s ARD is a prior offense as defined in

Section 3806(a) of the Vehicle Code).13

Accordingly, the trial court’s order is reversed, and Licensee’s license

suspension is reinstated.

MICHAEL H. WOJCIK, Judge

12

We also note that, to the extent the trial court in Licensee’s suspension appeal relied

upon a note in Licensee’s criminal proceeding to ignore Licensee’s ARD as a prior offense for

sentencing purposes, this would also constitute an error of law. Whether the sentencing court

treated the second DUI “as a first, second, or third offense for purposes of criminal sentencing

matters not. If, prior to sentencing on the most recent violation . . . a licensee has received a

preliminary disposition [ARD] for violations of Section 3802 of the Vehicle Code, the licensee

has a prior offense.” Diveglia v. Department of Transportation, Bureau of Driver Licensing, 220

A.3d 1167, 1172-73 (Pa. Cmwlth. 2019) (emphasis in original).

13

See Pa.R.A.P. 126(b)(1)-(2) (“As used in this rule, ‘non-precedential decision’ refers to

. . . an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008.

[] Non-precedential decisions . . . may be cited for their persuasive value.”).

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Rimer-Klak :

:

v. : No. 875 C.D. 2021

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

:

Appellant :

ORDER

AND NOW, this 9th day of May, 2024, the order of the Montgomery

County Court of Common Pleas dated June 30, 2021, is REVERSED, and the 12-

month suspension of Gregory Rimer-Klak’s operating privilege, imposed by the

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver

Licensing, is REINSTATED.

Jurisdiction is relinquished.

__________________________________

MICHAEL H. WOJCIK, Judge