OPINION BY Judge LEAVITT.

The Department of Transportation, Bureau of Driver Licensing (PennDOT), appeals an order of the Court of Common Pleas of Westmoreland County (trial court) reversing the one-year disqualification of Michael A. Kozieniak's (Licensee) commercial driver's license pursuant to Section 1611(a)(1) of the Vehicle Code, 75 Pa.C.S. § 1611(a)(1). PennDOT contends that the trial court erred in holding that PennDOT's disqualification of Licensee to operate commercial vehicles was penal in nature and imposed upon him without adequate due process. We reverse.

Background

Licensee has held a commercial driver's license (CDL) since June 24, 1991, and has been professionally driving trucks for over forty years. He currently works as a truck driver in Pittsburgh. On December 29, 2012, Licensee violated Section 3802(b) of the Vehicle Code, 75 Pa.C.S. § 3802(b), by driving with a "[h]igh rate of alcohol" in his system, i.e., an alcohol concentration between 0.10% and 0.16%. At the time of this violation, Licensee was driving his personal vehicle. Licensee applied for and was accepted into Accelerated Rehabilitative Disposition (ARD). By notice dated May 28, 2013, PennDOT informed Licensee that, as a result of his acceptance of ARD, it was imposing a one-year disqualification of his CDL under authority of Section 1611(a) of the Vehicle Code, 75 Pa.C.S. § 1611(a).1

Licensee filed a statutory appeal, and a de novo hearing was held by the trial court on September 30, 2013. Licensee argued that his one-year CDL disqualification was improper because his acceptance of ARD meant he was never actually convicted of a DUI offense. PennDOT offered into evidence, without objection, documents showing that it notified Licensee of a 30-day suspension of his driving privileges, with a one-year disqualification of his CDL.2 PennDOT then rested. Licensee testified without cross-examination by PennDOT.

The trial court found that because PennDOT's one-year CDL disqualification was penal in nature, Licensee was entitled to the "full panoply of due process." Trial Court Opinion at 3. The trial court further found that, because Licensee had been accepted into ARD instead of going to trial for his Vehicle Code violation, Licensee did not receive the process due to him for a CDL disqualification. The trial judge explained that

Id. at 4. The trial court sustained Licensee's appeal, and PennDOT appealed to this Court.

On appeal,3 PennDOT raises three assignments of error. First, PennDOT contends that the trial court erred in finding that Licensee was entitled to notice that his acceptance into ARD could result in a loss of his CDL. Second, PennDOT argues that the trial court erred in finding that its one-year disqualification of Licensee's commercial driving privilege was penal in nature. Third, PennDOT argues that the trial court erred in finding Licensee was denied due process in both the criminal proceeding and the statutory license suspension appeal.

I. Notice of Consequence of ARD

PennDOT first argues that the trial court erred in finding that Licensee was denied due process because he was never informed that his acceptance into ARD could cause him to lose his CDL. PennDOT contends that Licensee's argument is a collateral attack on Licensee's acceptance into ARD, which should not have been allowed by the trial court.

There is no requirement in the Vehicle Code that PennDOT must advise a licensee entering ARD that his commercial driving privilege may be suspended. See 75 Pa.C.S. § 1603, 1611(a). In Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994), a licensee appealed the 90-day suspension of his driver's license on the grounds that he did not knowingly and intelligently consent to the suspension when he entered into his plea agreement. In evaluating the licensee's argument, our Supreme Court stated:

Id. at 1177. The legislature has, to date, not followed the Supreme Court's suggestion. It has not amended the Vehicle Code to require that a licensee be warned, before he pleads guilty to an alcohol-related driving offense, that his license may be suspended if he pleads guilty. Duffey remains good law. There is no reason to apply a different standard to ARD than to a guilty plea. The trial court erred in holding that Licensee was entitled to notice that his CDL could be suspended by his agreement to enter ARD.

We turn, then, to the second part of PennDOT's argument. A collateral attack occurs where the recipient of a civil sanction that is collateral to a criminal conviction attempts to contest the criminal conviction in an appeal of the civil sanction. Commonwealth v. Bursick, 526 Pa. 6, 584 A.2d 291, 294 (1990). This Court may not consider whether a licensee should have been convicted; we may consider only whether he was convicted. Id. Thus, "[w]hen a licensee becomes aware that is he going to lose his driving privilege as a consequence of [his criminal conviction], his only remedy is to seek allowance of appeal nunc pro tunc from the ... conviction." Duffey, 639 A.2d at 1177.

In his appeal to the trial court, Licensee argued that he "was not convicted of any violation and has been placed on the ARD Program in Westmoreland County and expects that upon successful completion of that Program, the charges against him will be dismissed." Appeal of Licensee to the Court of Common Pleas of Westmoreland County, June 6, 2013 (emphasis added). Licensee was not contesting whether he violated Section 3802 of the Vehicle Code but, rather, whether he received a "conviction." In short, Licensee was not collaterally attacking the resolution of his underlying criminal offense. However, it matters not to the outcome.

Section 1611(a)(1) of the Vehicle Code requires that

75 Pa.C.S. § 1611(a)(1) (emphasis added). The Vehicle Code defines a "conviction" as

75 Pa.C.S. § 1603 (emphasis added). Under this definition, Licensee's acceptance into ARD constituted a "conviction" of violating Section 3802. Once Licensee was convicted of a Section 3802 violation, PennDOT was required to disqualify his commercial driving privilege under Section 1611(a)(1).

We disagree with PennDOT's claim that Licensee has lodged an improper collateral attack on his underlying criminal conviction. Nevertheless, Licensee's position that he was not "convicted" lacks merit given the definition of conviction in Section 1611(a)(1) of the Vehicle Code.

II. Civil or Punitive Penalty

PennDOT contends that the trial court erred in holding that disqualification of Licensee's CDL was penal in nature. The trial court explained this holding as follows:

Trial Court Opinion at 3. PennDOT argues that the trial court erred because it did not undertake the analysis established in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), which was adopted by our Supreme Court in Commonwealth v. Abraham, 619 Pa. 293, 62 A.3d 343 (2012).

In Abraham, the appellant, a recently retired high school teacher, was charged with corruption of a minor. The appellant negotiated a plea deal, unaware that pleading guilty to the corruption charge would result in the forfeiture of his pension under the Public Employee Pension Forfeiture Act (PEPFA), Act of July 8, 1978, P.L. 752, as amended, 43 P.S. §§ 1311-1315. The appellant then sought to withdraw his guilty plea and, on appeal to our Supreme Court, claimed that his counsel was ineffective for not advising him that the plea bargain would cost him his pension. The appellant argued that he did not knowingly and voluntarily enter into the plea agreement.

Our Supreme Court rejected the appellant's ineffective assistance argument, reasoning that effective assistance of counsel is required only for a criminal proceeding. By contrast, the forfeiture of appellant's pension was civil in nature. In holding that the loss of a pension was civil, not penal, the Court used the U.S. Supreme Court's analysis in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

In Smith, the U.S. Supreme Court held that, first, one must look to whether the legislature has expressed an intention to make a statutory penalty civil or penal. That expressed intention may be overcome but only after application of the seven factor balancing test established in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The seven factors are

Abraham, 62 A.3d at 350 (citations omitted). In adopting the Smith/Kennedy analysis, our Supreme Court explained that "only the clearest proof will suffice to override legislative intent and transform... a civil remedy into a criminal penalty." Abraham, 62 A.3d at 351 (citations omitted). Our Supreme Court concluded that the pension forfeiture at issue was part of a civil regulatory regime, not a penal sanction.

In the case of a one-year CDL disqualification for driving under the influence, the legislature has expressed its intention that this sanction is civil and regulatory in nature, not penal.5 It stated:

75 Pa.C.S. § 1602(a). Protecting the public and conforming to federal statutory law expresses a regulatory, not penal, intent. We turn, then, to the seven-factor test set forth in Smith/Kennedy, 374 U.S. 144, 83 S.Ct. 554 to determine if that intent can be upheld.

Regarding the first factor, the disqualification of Licensee's CDL is not an affirmative restraint, such as incarceration and deportation.6 See Abraham, 62 A.3d at 351. As explained in Abraham, an appellant "may be precluded from receiving [his paycheck] which he would otherwise [earn], but he is not precluded from earning a living in some other capacity." Abraham, 62 A.3d at 351. Here, Licensee is precluded, temporarily, from earning a living by driving a truck, but he is free to pursue other forms of employment during his period of disqualification.

The second Kennedy factor asks whether the sanction has traditionally been viewed as a punishment. Licensee concedes in his brief that "[c]ounsel ... can find no case one way or the other concerning whether the loss of his CDL has been considered a punishment." Licensee's Brief at 5. Our Supreme Court in Duffey, 639 A.2d at 1176, cited a case that concluded that "license suspension [generally] is properly considered a collateral consequence rather than a criminal penalty." In light of this precedent, suspension of one's driving privilege, whether commercial or personal, has traditionally been considered a civil sanction and not a criminal punishment.

Likewise, the remaining Smith/Kennedy factors weigh in favor of the conclusion that Section 1611(a)(1) imposes a non-punitive civil sanction. With respect to the third factor, Licensee "concedes that scienter is not a factor in the law permitting the suspension of a CDL by being accepted into the ARD program." Licensee's Brief at 5. Regarding the fourth factor, Section 1611(a)(1) does not exact retribution, which is the traditional aim of punishment. Licensee concedes "that [the fifth] factor is not in any way applicable to this case." Licensee's Brief at 6. Regarding the sixth and seventh factors, the rationale for the sanction at issue, as previously explained, is to protect the public from the dangers presented by impaired drivers. This Court cannot say, based on the evidence presented, that the sanction was excessive.

In summary, application of the seven Smith/Kennedy factors does not overcome the legislature's expressed intent that the one-year CDL disqualification is a civil sanction. Accordingly, we reverse the trial court's holding that Section 1611(a)(1) is penal in nature, thereby triggering the full panoply of due process owed to a criminal defendant.

III. Due Process

PennDOT's final argument is that the trial court erred in concluding that Licensee was denied due process. Our Supreme Court has explained that "[d]ecisions of the United States Supreme Court have made it clear that a person's interest in his driver's license is `property,' which a State may not revoke or suspend without satisfying the due process guarantee of the Fourteenth Amendment." Department of Transportation v. McCafferty, 563 Pa. 146, 758 A.2d 1155, 1163 (2000). Due process is satisfied when the State affords a licensee notice and a hearing before revoking his license. Id.

In Zanotto v. Department of Transportation, 83 Pa.Cmwlth. 69, 475 A.2d 1375, 1376 (1984), the licensee was designated a "habitual offender" after his third DUI conviction. The mandatory penalty for such a designation was an automatic five-year license suspension. Even though the licensee received a de novo license suspension hearing, he asserted that he was deprived of due process. In rejecting that claim, we held that "a de novo hearing adequately safeguards the notice and hearing requirements of due process." Id. at 1375. Accordingly, the licensee's appeal was denied.

The recent case of Spagnoletti, 90 A.3d 759, which reaffirmed our holding in Zanotto, is also instructive. In Spagnoletti, the licensee, a designated "habitual offender," contested the automatic five-year suspension of her license on the basis that she was denied due process. Specifically, the licensee challenged the voluntariness of her guilty plea since she was unaware of the "habitual offender" designation and its collateral civil consequences. The trial court agreed and sustained the licensee's appeal. In reversing the trial court, we explained that "there is simply no support for the trial court's determination that [the licensee's] five-year operating privilege revocation is invalid based on [the licensee's] failure to receive notice of the habitual offender designation prior to her decision to plead guilty to her third DUI offense." Spagnoletti, 90 A.3d at 770. We continued:

Id. at 771.

As was the case for the licensees in Zanotto and Spagnoletti, Licensee received a de novo hearing, and this satisfied his right to due process. The trial court erred in concluding otherwise.

For all of the foregoing reasons, we reverse the decision of the trial court and reinstate the one-year disqualification of Licensee's CDL.

ORDER

AND NOW, this 4th day of September, 2014, the order of the Court of Common Pleas of Westmoreland County dated December 30, 2013, in the above-captioned matter is hereby REVERSED.