                     IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


    THOMAS J. HOOVER,                           :   No. 219 WAL 2019
                                                :
                        Petitioner              :   Petition for Allowance of Appeal from
                                                :   the Unpublished Memorandum
                                                :   Opinion and Order of the
                v.                              :   Commonwealth Court at No. 1527 CD
                                                :   2018 (Simpson, Covey, Ceisler, JJ.),
                                                :   entered on June 25, 2019, affirming
    COMMONWEALTH OF PENNSYLVANIA,               :   the Order of the Lawrence County
    DEPARTMENT OF TRANSPORTATION,               :   Court of Common Pleas at No. 70006
    BUREAU OF DRIVER LICENSING,                 :   of 2018, M.D. (Cox, J.), entered on
                                                :   November 6, 2018
                        Respondent              :



                                 CONCURRING STATEMENT

JUSTICE WECHT                                       DECIDED: NOVEMBER 25, 2019

        I concur in the Court’s decision to deny allocatur. I write separately to highlight a

jurisprudential issue that may require this Court’s attention in the future.

        This petition is the second (at least) attempt in the past three years in which a

petitioner has invited this Court to address the constitutionality of the procedure by which

the Pennsylvania Department of Transportation (“PennDOT”) suspends an individual’s

driver’s license under the Implied Consent Law.1 See Regula v. Pa., Dep’t of Transp.,

1       The Implied Consent Law, in pertinent part, provides:
        (b) Civil penalties for refusal.--
               (1) If any person placed under arrest for a violation of section 3802
               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,
               the department shall suspend the operating privilege of the person
               as follows:
Bureau of Driver Licensing, 146 A.3d 836 (Pa. Cmwlth. 2016), appeal denied, 169 A.3d

9 (Pa. 2017).

       In Department of Transportation v. Wysocki, 535 A.2d 77 (Pa. 1987), this Court

concluded that PennDOT’s authority to suspend an individual’s driver’s license “is not

conditioned on the validity of the arrest which gives rise to the request for a breathalyzer

test.” Wysocki, 535 A.2d at 79. Thus, “[t]he driver’s guilt or innocence of a criminal

offense is not at issue in the license suspension proceedings. The only fact necessary to

the administrative determination is the driver’s refusal to comply with the breathalyzer

request after being taken into custody.” Id.

       However, as Justice Papadakos aptly noted in his Wysocki dissent, the “majority

opinion compels a conclusion that a police officer can stop anyone, anyplace, anytime of

the day or night, for no articulable reason at all, and then form a reasonable belief that

the person so stopped, whether in or about anyone’s motor vehicle, has been driving

while under the influence of alcohol . . . . If the person refuses [to undergo a breathalyzer

test], the driver’s license is suspended for one year.” Id. at 80 (Papadakos, J., dissenting).

       Adhering to this Court’s Wysocki decision, the Commonwealth Court similarly has

decided that a person appealing a license suspension cannot question a police officer’s

rationale for a vehicle stop because a license suspension is not a criminal proceeding.

See Regula, 146 A.3d at 844 (“Courts of this Commonwealth have consistently followed

and cited Wysocki for . . . distinguishing between the civil license suspension and the

criminal [driving under the influence] proceedings.”).




                     (i) Except as set forth in subparagraph (ii), for a period of 12
                     months.
75 Pa.C.S. § 1547(b).


                                    [219 WAL 2019] - 2
       In the decision below in the instant case, the Commonwealth Court outlined that,

“[t]o support the suspension of a licensee’s operating privilege under the Implied Consent

Law, [Penn]DOT must prove that the licensee: (1) was arrested for DUI by an officer who

had reasonable grounds to believe that the licensee was operating a vehicle while under

the influence of alcohol in violation of Section 3802 of the Vehicle Code; (2) was asked to

submit to a chemical test; (3) refused to do so; and (4) was warned that his refusal might

result in a license suspension and would result in enhanced penalties if he were later

convicted of DUI.” Hoover v. Pa., Dep’t of Transp., Bureau of Driver Licensing, 2019 WL

2587695, at *2 (Pa. Cmwlth. June 25, 2019).           However, the Commonwealth Court

observed, “‘[f]or “reasonable grounds” to exist, the police officer obviously need not be

correct in his belief that the motorist had been driving while intoxicated. [The relevant

inquiry is] the [officer’s] authority to request a person to submit to a chemical test and not

the admission into evidence of the result of such a test.’” Id. at *4 (quoting Pa., Dep’t of

Transp., Bureau of Traffic Safety v. Dreisbach, 363 A.2d 870, 872 (Pa. Cmwlth. 1976)).

       I recognize the importance of stare decisis in our jurisprudence, and I accordingly

concur in today’s decision to deny review. Nonetheless, as the Commonwealth Court

observed in Regula: “Our sister states that have examined this issue have split on whether

a legal stop is a prerequisite for a license suspension pursuant to implied consent laws.”

Regula, 146 A.3d at 845 (collecting cases). Moreover, the United States Supreme Court

handed down its opinion in Birchfield v. North Dakota, __ U.S. __, 136 S. Ct. 2160 (2016),

subsequent to our Wysocki decision. The Commonwealth Court recognized that, while

the Birchfield decision did “not question[] the civil consequences imposed by state implied

consent laws, the [High] Court signaled its continued willingness to apply a Fourth

Amendment analysis to such laws.” Regula, 146 A.3d at 846. Finally, the Commonwealth

Court noted that “neither Wysocki nor its progeny addressed the statutory requirements




                                    [219 WAL 2019] - 3
of the Section 6308(b) of the Vehicle Code, nor the impact of [a] 2004 amendment, which

occurred after Wysocki was decided.”       Id.   Nonetheless, the Commonwealth Court

concluded (correctly) that it was obligated to follow Wysocki. See id.

      In light of the United States Supreme Court’s intervening decision in Birchfield, as

well as statutory changes since Wysocki, it may be necessary for this Court to reconsider

our holding in Wysocki in an appropriate case. Although I agree that neither this petition

nor the petition filed in Regula is or was the proper vehicle for deciding such a claim, I

would not foreclose the possibility that this Court may need to review this issue when a

proper petition appears.

      Justices Donohue and Dougherty join this concurring statement.




                                   [219 WAL 2019] - 4
