Use of DUI Arrests in Administrative Hearing

by: Thomas E. Brenner

The Commonwealth Court, in Erin E. Connor v. Insurance Department, No 272 C.D. 2002, (Sept. 10, 2002) has decided a significant issue regarding the use of information about a DUI arrest.

For many first time drivers arrested on a driving under the influence charge, entry into an Accelerated Rehabilitation Disposition Program (ARD) was believed to be a way to minimize the effect of the DUI charge. ARD provides that evidence of the criminal conviction will be expunged upon the completion of the program.

In Connor, Erin Connor had left a post-work party where she had several glasses of wine. She was involved in single vehicle accident a short time later, in which her vehicle struck two utility poles in Doylestown, Bucks County. Police responding to the scene conducted two field sobriety tests, which she failed, and took her to a local hospital for a blood alcohol test. She entered an ARD program and her drivers license was suspended for 30 days.

Erie Insurance paid over $7,300 in property and issued a Notice of Non-Renewal of her automobile insurance, asserting that Connor had been drinking alcoholic beverages to the extent that it materially increased the probability of loss.

Connor filed a request for review with the Insurance Department, which Department held an Administrative Hearing and determined that Erie did not violate Act 68, which governs automobile insurance renewals and cancellations when it refused to renew the Connor policy based upon the DUI incident. Erie was represented by Thomas E. Brenner of Goldberg, Katzman & Shipman, P.C. at the Hearing.

The Insurance Commissioner noted that absent a DUI conviction, Erie had to prove Connor had consumed alcohol and that it had an adverse effect on her ability to drive. The Insurance Commissioner found that Erie based its non-renewal on information from a statement provided by Ms. Connor, the police accident report and her certified driving record. Testimony was presented before the Insurance Department by the investigating police officer, who described his observations at the accident and Connor’s demeanor, including an odor of alcohol, glassy eyes, slurred speech, a staggered gait and her failure of two field sobriety tests.

Connor argued that she had been a 15 year insured of Erie without incident and that her policy should not be non-renewed based upon one accident. Connor contended that Erie had not produced competent evidence that she was driving while under the influence and that Erie should not be able to utilize the evidence regarding the DUI incident without a criminal DUI conviction.

The Commonwealth Court held that Erie only had to prove that Connor consumed alcoholic beverages that had an adverse effect on her ability to drive and held that Erie had satisfied this burden.

Connor had argued that existing precedent required that she be convicted of driving under the influence or that she admit guilt. The Commonwealth Court rejected these arguments, finding that Erie had provided sufficient proof of drinking and driving, which demonstrated an increased hazard of risk of loss.

This is the first decision by the Commonwealth Court approving the use of evidence of drinking and driving where there has not been a guilty plea or conviction of DUI. Drivers’ efforts to utilize entry into an ARD program to avoid potential loss of insurance coverage has been rejected by the Commonwealth Court in Connor.

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