Section 83.4. Seizure disorder

(a) General. A person who has a seizure disorder will not be qualified to drive unless a licensed physician reports that the person has been free from seizure for at least 6 months immediately preceding, with or without medication. A person will not be disqualified if the person has experienced only auras during that period.

(b) Waiver. Waiver of the freedom from seizure requirement may be made upon specific recommendation by a licensed physician if one of the following conditions apply:

(1) A strictly nocturnal pattern of seizures or a pattern of seizures occurring only immediately upon awakening has been established over a period of at least 2 years immediately preceding, with or without medication.

(2) A specific prolonged aura accompanied by sufficient warning has been established over a period of at least 2 years immediately preceding, with or without medication.

(3) The person previously had been free from seizure for a 6 month period and the subsequent seizure or seizures occurred as a result of a prescribed change in or removal from medication while under the supervision of a licensed physician. This waiver will only be provided upon reinstitution of previous medication.

(4) The person previously had been free from seizure for 6 months and the subsequent seizure or seizures occurred during or concurrent with a nonrecurring transient illness, toxic ingestion, or metabolic imbalance.

(c) Reporting requirements for provider. Every provider who treats a person who has experienced a single seizure shall provide, consistent with 75 Pa.C.S. § 1518(b) (relating to reports on mental or physical disabilities or disorders), a report to the Department which shall constitute cause for the Department to direct the person to undergo an examination prescribed under 75 Pa.C.S. § 1519 (relating to determination of incompetency).

The provisions of this § 83.4 adopted May 18, 1979, effective May 19, 1979, 9 Pa.B. 1631; readopted April 19, 1991, effective April 12, 1991, 21 Pa.B. 1813; amended July 16, 2004, effective July 17, 2004, 34 Pa.B. 3718. Immediately preceding text appears at serial page (262091).

Notation

Authority

The provisions of this § 83.4 amended under the Vehicle Code, 75 Pa.C.S. § § 1517, 1518 and 6103.

Notes of Decisions

Due Process

This regulation, which provides for the revocation of one’s operating privilege for a period of one year upon the occurrence of only a single epileptic seizure, without the licensee having an opportunity to present medical evidence in an effort to establish his or her competency to drive, violates due process. Department of Transportation v. Clayton, 684 A.2d 1060 (Pa. 1996).

Clearly, precluding unsafe drivers, even those who are potentially unsafe drivers, from driving on the highways is an important interest. But, it is not an interest which outweighs a person’s interest in retaining his or her license so as to justify the recall of that license without first affording the licensee the process to which he or she is due. Indeed, since competency to drive is the paramount factor behind this regulation, any hearing which eliminates consideration of that very factor is violative of procedural due process. Department of Transportation v. Clayton, 684 A.2d 1060 (Pa. 1996).

Suspension of driver’s licenses involves state action that adjudicates important interests of the licensees, and licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment, citing Department of Transportation v. Clayton, 684 A.2d 1060 (Pa. 1996), Peachey v. Com., Dept. of Transp., 979 A.2d 951, 955 N5 (Pa. Cmwlth. 2009).

Department of Transportation’s interest in precluding unsafe drivers, even those who are potentially unsafe drivers, from driving on our highways is an important interest, but it is not an interest which outweighs a person’s interest in retaining his or her driver’s license so as to justify the recall of that license without first affording the licensee the process to which he or she is due, citing Clayton, 684 A.2d 1065, Peachey v. Com., Dept. of Transp., 979 A.2d 951, 957 (Pa. Cmwlth. 2009).

Due Process Violated

This section, which creates an irrebuttable presumption that a person who has had one seizure is incompetent to drive for at least 1 year, violates procedural due process since the time and expense of litigation do not overcome the interest of the licensee in his operating privilege. Department of Transportation v. Brown, 630 A.2d 927 (Pa. Cmwlth. 1993).