            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew Hudak                                 :
                                              :
       v.                                     : No. 166 C.D. 2018
                                              : SUBMITTED: June 22, 2018
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing,                   :
                  Appellant                   :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                               FILED: August 14, 2018

       The Commonwealth of Pennsylvania, Department of Transportation, Bureau
of Driver Licensing (DOT) appeals from the January 8, 2018 Order of the Court of
Common Pleas of Butler County (Trial Court), which sustained Matthew Hudak’s
(Licensee) appeal stemming from DOT’s suspension of his operating privilege
pursuant to Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i).1
On appeal, DOT argues that the Trial Court erred in sustaining Licensee’s appeal

       1
         Section 1547 of the Vehicle Code is commonly known as the Implied Consent Law.
Section 1547(b)(1)(i) of the Implied Consent Law states:

       If any person placed under arrest for a violation of section 3802 [of the Vehicle
       Code (relating to driving under the influence of alcohol or a controlled substance)]
       is requested to submit to chemical testing and refuses to do so, the testing shall not
       be conducted but upon notice by the police officer, [DOT] shall suspend the
       operating privilege of the person . . . for a period of 12 months.

75 Pa. C.S. § 1547(b)(1)(i).
based solely on the terms of a plea agreement between Licensee and an Assistant
District Attorney (ADA) with the Butler County District Attorney’s Office. We
agree with DOT and, therefore, reverse the Trial Court’s Order.
                                      Background
       The underlying facts are not in dispute. On April 22, 2017, Pennsylvania State
Police Trooper Richard Guistini stopped Licensee for driving an all-terrain vehicle
on the roadway without lights. Notes of Testimony (N.T.), 1/5/18, at 6-7. While
questioning Licensee, Trooper Guistini smelled the odor of alcohol on Licensee’s
breath. Id. at 7. Licensee admitted to consuming seven beers within the previous
hour. Id. After administering field sobriety tests, Trooper Guistini arrested Licensee
for suspicion of driving under the influence of alcohol (DUI). Id. at 8.
       After his arrest, Licensee refused to submit to a chemical breath test. N.T.,
1/5/18, at 8. After the first refusal, Trooper Guistini notified Licensee of the
consequences for refusing chemical testing under the Implied Consent Law, but
Licensee still refused to allow testing. Id. at 10-11.
       On the date of Licensee’s preliminary hearing on the DUI charge, Trooper
Guistini met with Licensee’s counsel and the ADA. N.T., 1/5/18, at 13. The parties
agreed that, if Licensee agreed to participate in an accelerated rehabilitative
disposition (ARD)2 program, Trooper Guistini would not submit to DOT the form
related to Licensee’s refusal to submit to chemical testing (Form DL-26A). Id. at
14. Licensee ultimately waived his right to a preliminary hearing. Id.
       However, Trooper Guistini subsequently received notice that a non-jury trial
had been scheduled for Licensee’s DUI case, leading him to assume that Licensee
had elected not to proceed with the ARD program.                   N.T., 1/5/18, at 15.

       2
         ARD is a program whereby, upon successful completion of the program’s requirements,
an offender’s record may be expunged. See Pa.R.Crim.P., Chapter 3.

                                             2
Consequently, Trooper Guistini forwarded Form DL-26A to DOT. Id. at 15-16.
      On August 31, 2017, DOT mailed Licensee a notice that his operating
privilege was suspended for one year, effective October 5, 2017, as a result of his
refusal to submit to chemical testing on April 22, 2017. Reproduced Record (R.R.)
at 9a-12a.
      Licensee appealed his suspension to the Trial Court, which held a hearing on
January 5, 2018. Trooper Guistini testified regarding the circumstances surrounding
Licensee’s arrest and the agreement between Licensee’s counsel and the ADA that
Form DL-26A would not be forwarded to DOT if Licensee participated in the ARD
program. N.T., 1/5/18, at 3-18. DOT was not a party to that agreement. Id. at 17.
Trooper Guistini acknowledged that Licensee had, in fact, entered the ARD program
and that he sent Form DL-26A to DOT because he mistakenly believed that
Licensee’s DUI case was going to trial. Id. at 16. At the conclusion of the hearing,
the Trial Court sustained Licensee’s appeal. Id. at 25.
      DOT appealed to this Court. In its Pa.R.A.P. 1925(a) Opinion, the Trial Court
explicitly found that DOT met its burden of proof to support a suspension of
Licensee’s operating privilege.3 1925(a) Op. at 4. However, the Trial Court stated
that, but for Trooper Guistini’s erroneous submission of Form DL-26A to DOT,
DOT would have been unaware of the refusal. Id. at 5. As a result, the Trial Court
sustained Licensee’s appeal, concluding that


             [i]t is a serious and sincere public policy concern to allow
             parties to enter into agreements, wherein significant rights

      3
         The record filed with this Court does not contain charging documents related to
Licensee’s DUI. However, a September 1, 2017 order granting Licensee’s admission into the
ARD program indicates he was charged with violating Section 3802(a)(1) of the Vehicle Code,
75 Pa. C.S. § 3802(a)(1). R.R. at 14a.

                                            3
              are foregone in exchange for promises made by court
              officers, and then to subsequently allow a court to
              dishonor such an agreement. There is a significant and
              concerning discrepancy in bargaining power where one
              party is unaware that the promises being made by the other
              party to bind himself, or herself into action, or inaction,
              are not enforceable.

              But for the Trooper’s honest mistake [DOT] would not
              have even been aware of the refusal. While this Court
              acknowledges the Commonwealth’s affirmative duty to
              institute a suspension of operating privileges in these
              circumstances, this Court cannot, in consideration of
              equitable fairness and public policy uphold this
              suspension.
1925(a) Op. at 5-6. This appeal followed.4
                                             Issue
       The sole issue before us is whether the Trial Court erred in concluding that
DOT improperly suspended Licensee’s operating privilege due to the terms of
Licensee’s plea agreement with the ADA.
                                         Discussion
       To suspend a licensee’s operating privilege for refusing to submit to chemical
testing, DOT has the burden of proving the following:

       (1) Licensee was arrested for violating Section 3802 of the Vehicle
       Code by a police officer who had “reasonable grounds to believe” that
       Licensee was operating or was in actual physical control of the
       movement of a vehicle while in violation of Section 3802 (i.e., while
       driving under the influence); (2) Licensee was asked to submit to a
       chemical test; (3) Licensee refused to do so; and (4) Licensee was
       specifically warned that a refusal would result in the suspension of his


       4
         Our scope of review is limited to determining whether the Trial Court committed an error
of law or abused its discretion and whether the Trial Court’s factual findings are supported by
substantial evidence. Reinhart v. Dep’t of Transp., Bureau of Driver Licensing, 954 A.2d 761,
765 n.3 (Pa. Cmwlth. 2008).
                                               4
      operating privileges and would result in enhanced penalties if he was
      later convicted of violating Section 3802(a)(1).

Martinovic v. Dep’t of Transp., Bureau of Driver Licensing, 881 A.2d 30, 34 (Pa.
Cmwlth. 2005). Once DOT satisfies its burden, the licensee, in order to escape
sanction, must then prove that he or she was incapable of making a knowing and
conscious refusal. Hinkel v. Dep’t of Transp., Bureau of Driver Licensing, 715 A.2d
556, 558 (Pa. Cmwlth. 1998).
      Here, DOT argues that the Trial Court erred in finding that the terms of
Licensee’s plea agreement justified sustaining Licensee’s appeal. DOT maintains
that no authority exists that allows an ADA to bargain away an operating privilege
suspension that DOT is statutorily mandated to impose, and contends this Court has
consistently held that DOT is not bound by third-party plea agreements. In support
of its arguments, DOT relies on Department of Transportation, Bureau of Driver
Licensing v. Lefever, 533 A.2d 501 (Pa. Cmwlth. 1987).
      In Lefever, the district attorney and Lefever reached a plea agreement, wherein
the district attorney agreed to withdraw a notice to DOT that Lefever refused to
submit to chemical testing after his arrest for DUI. 533 A.2d at 502. In exchange,
Lefever consented to the use of a hospital’s blood test results in his criminal DUI
proceedings. Id. DOT suspended Lefever’s operating privilege approximately one
month after Lefever entered into the plea agreement. Id. Lefever then appealed
DOT’s suspension of his license. The trial court subsequently directed DOT to
reinstate Lefever’s operating privilege, finding that because the suspension
proceeding was independent and distinct from the underlying criminal action, DOT
had to honor the agreement to withdraw the notice of refusal. Id.
      On appeal, this Court reversed, holding that the Vehicle Code’s mandatory
civil penalties were not subject to the terms of a plea agreement arising from related

                                          5
criminal charges. Lefever, 533 A.2d at 503. Regardless of the disposition of the
criminal charge, the suspension resulting from a refusal to submit to chemical testing
was an independent civil proceeding. Id. We further concluded:


      [N]either the district attorney in plea bargaining, nor the court of
      common pleas when deciding a criminal matter, has jurisdiction to bind
      DOT to withdraw a civil license suspension. The statutory suspensions
      following a refusal to submit to a blood alcohol test or a conviction for
      [DUI] are not bargaining chips to be traded in exchange for criminal
      convictions; rather, they are mandatory civil penalties . . . .
Id. (emphasis added).
      Licensee attempts to distinguish Lefever from this case by arguing that, at the
time of the plea agreement, Trooper Guistini was acting as DOT’s agent and, thus,
had the ability to bind DOT by his actions.
      We find Licensee’s arguments unpersuasive. Our Court has upheld the central
holding in Lefever on multiple occasions in the three decades since it was decided.
See, e.g., Quick v. Dep’t. of Transp., Bureau of Driver Licensing, 915 A.2d 1268
(Pa. Cmwlth. 2007) (agreement between arresting officer and licensee that failure to
comply with breathalyzer test did not constitute refusal of chemical testing was not
binding on DOT); Stair v. Dep’t of Transp., Bureau of Driver Licensing, 911 A.2d
1014 (Pa. Cmwlth. 2006) (agreement to treat licensee’s DUI conviction as a first-
time offense not binding on DOT); Pompey v. Dep’t of Transp., Bureau of Driver
Licensing, 768 A.2d 372 (Pa. Cmwlth. 2001) (DOT cannot be bound by the terms of
a plea agreement that withdraws a civil license suspension).
      Moreover, although the facts of Lefever and its progeny differ from this case,
our Court has consistently held that DOT is not bound by the terms of a third-party
plea agreement, as such agreements cannot strip away DOT’s duty under the Vehicle
Code to impose a license suspension for a licensee’s refusal to submit to chemical

                                          6
testing. See Stair, 911 A.2d at 1018. Therefore, we conclude that neither Licensee
nor the ADA had the right to bargain away DOT’s legislative mandate to impose
civil penalties upon Licensee for refusing to submit to chemical testing under the
Implied Consent Law.
      We also reject Licensee’s argument that Trooper Guistini was acting as
DOT’s agent when Licensee’s plea agreement was made. Licensee claims that law
enforcement officers, through enforcement of the Vehicle Code, are necessarily
agents of DOT. This characterization of the agent-principal relationship ignores the
basic elements of agency, which require: 1) the manifestation by the principal that
the agent shall act for it; 2) the agent’s acceptance of the undertaking; and 3) the
understanding of the parties that the principal is to be in control of the undertaking.
Basile v. H&R Block, Inc., 761 A.2d 1115, 1120 (Pa. 2000). There is no evidence
in the record to support a finding that DOT intended that Trooper Guistini act on its
behalf. Trooper Guistini’s duty to provide DOT notice of Licensee’s refusal to
submit to chemical testing is a statutorily-imposed requirement under the Implied
Consent Law, not the result of any purported agency relationship.
      The undisputed evidence supports the Trial Court’s conclusion that DOT met
its burden of proof for a license suspension. Trooper Guistini arrested Licensee
based on the odor of alcohol on Licensee’s breath, his admission to having consumed
seven beers within one hour before his arrest, and his performances on field sobriety
tests. Licensee refused a chemical breath test after having been warned of the
consequences of refusal, and Licensee failed to offer evidence suggesting that his
refusal was done in anything other than a knowing and conscious manner. While
we recognize that Trooper Guistini sent Form DL-26A to DOT based on his
misapprehension of the procedural posture of the criminal matter, once DOT
received that form, it was required by Section 1547(b)(1)(i) of the Implied Consent

                                          7
Law to suspend Licensee’s operating privilege. The Trial Court committed an error
of law when it concluded otherwise. Accordingly, we reverse the Trial Court’s
Order.



                                     __________________________________
                                     ELLEN CEISLER, Judge




                                       8
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Matthew Hudak                       :
                                    :
      v.                            : No. 166 C.D. 2018
                                    :
Commonwealth of Pennsylvania,       :
Department of Transportation,       :
Bureau of Driver Licensing,         :
                  Appellant         :


                                 ORDER

      AND NOW, this 14th day of August, 2018, the Order of the Court of Common
Pleas of Butler County, dated January 8, 2018, is hereby REVERSED.

                                    ________________________________
                                    ELLEN CEISLER, Judge
