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Poborski v. Commonwealth

January 15, 2009

PETER POBORSKI, III, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING



The opinion of the court was delivered by: Senior Judge Kelley

Submitted: July 3, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge. HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Peter Poborski, III (Licensee) appeals from an order of the Court of Common Pleas of Cambria County (Trial Court) that dismissed Licensee's appeals from the suspension and disqualification, respectively, of his driving and commercial driving privileges, issued by the Department of Transportation, Bureau of Driver Licensing (DOT). We reverse.

On September 17, 2006, Licensee was charged with a violation of Section 3802 of the Vehicle Code, 75 Pa.C.S. §3802, for driving under the influence (DUI). On May 24, 2007, Licensee accepted an Accelerated Rehabilitative Disposition (A.R.D.)*fn1 of the DUI charge, and subsequently received two letters from DOT, dated July 3, 2007. The two letters informed Licensee that his personal driving privilege would be suspended for thirty days, and that his commercial driving privilege would be disqualified for a period of one year, both as a result of his acceptance into the A.R.D. program.

On August 2, 2007, Licensee filed appeals of the suspension and disqualification in the Trial Court.*fn2 Thereafter, Licensee filed a Petition To Be Removed From Accelerated Rehabilitative Disposition Program and To Remand Case To Magistrate (the Petition), on October 19, 2007, seeking to enable a challenge to the underlying charge. By order dated November 6, 2007, the Trial Court granted Licensee's Petition and concomitant request to be removed from the A.R.D. program.

On December 7, 2007, the Trial Court held a hearing on Licensee's two appeals, at which both Licensee and DOT appeared and were represented by counsel. At the hearing, Licensee argued that his withdrawal from the A.R.D. program should trigger, in essence, a nullification of DOT's actions in regard to his driving privileges. DOT argued that Licensee's acceptance into the A.R.D. program triggered the suspension and disqualification at issue, notwithstanding his subsequent withdrawal.

Citing to Lihota, the Trial Court concluded that Licensee's acceptance into the A.R.D. program carried the immediate consequence of the suspension and disqualification of Licensee's driving privileges, both personal and commercial, and that it was irrelevant whether Licensee had completed or removed himself from the program. By order dated January 9, 2008, the Trial Court dismissed Licensee's appeals. Licensee now appeals to this Court.*fn3

Our scope of review in a license suspension appeal is limited to determining whether the trial court's findings of fact are supported by competent evidence, whether errors of law have been committed, or whether the trial court's determination demonstrates a manifest abuse of discretion. Lihota.

Licensee presents one issue for review: whether the Trial Court erred in concluding that Licensee's acceptance into the A.R.D. program mandates the continued suspension and disqualification at issue, notwithstanding Licensee's subsequent voluntary withdrawal from the program. Licensee asserts that the voluntary nature of his withdrawal indicates his rejection of the conditions of the A.R.D. program and his intention to pursue his rights to defend against the underlying criminal DUI charge, and thusly, he should not have his driving privileges suspended and/or disqualified in the wake of the Trial Court's nullification of his A.R.D. acceptance.

Licensee emphasizes that he timely appealed the actions at issue, on August 2, 2007, upon learning of their imposition through his receipt of the DOT notices dated July 3, 2007. The record in this matter shows that Licensee petitioned for removal from the A.R.D. program, and requested remand to a magistrate for the purpose of contesting the DUI charge, on October 19, 2007. Reproduced Record (R.R.) at 20a.

Licensee argues that Lihota is distinguishable in that the licensee in that matter was involuntarily removed from the A.R.D. program by the court as a result of violating the program terms. Licensee asserts that the involuntary removal in Lihota demonstrates the acceptance by that licensee of the terms of the A.R.D. program. Licensee in the instant matter, however, took proactive and voluntary steps to remove himself from A.R.D., which action was approved by the Trial Court, thusly demonstrating his rejection of acceptance into the program and his intention to contest the underlying charge. In essence, Licensee argues that his subsequent change of mind, coupled with his court approved actions to reject acceptance into A.R.D., should control over his initial acceptance.

DOT argues that that the express language of the Vehicle Code, and Lihota, control the matter sub judice. Section 3807(d) of the Vehicle Code mandates a 30-day driving privilege suspension for a licensee whose blood alcohol ...


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