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Home My WebLink About96-01447 '\ . r":-. .J .] 1 ... r-o. 1'-. ~ ~ ~ ~ """., ", .... " .~r" ~ ~ J I:' ~/ , ...lli ~ ,,'j ,.... I I I. , I '!COMMOUWEALTH OF PENNSYLVANIA PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 'It. /'1,/7 Cl;.;j T;o'~ v. MICHAEL J. MURPHY, Appellant LICENSE SUSPENSION APPEAL APPEAL FROM SUSPENSION OF OPBRATOR'S PRIVILEGB 1. Appellant, Michael J. Murphy, is an adult individual who currently resides at 607 Market Street, New Cumberland, Cumberland County, Pennsylvania l7070. 2. Appellee, Conunonwealth of Pennsylvania, Pennsylvania Department of Transportation, Bureau of Driver Licensing, Harrisburg, Dauphin County, Pennsylvania, 17123, is a state agency. 3. On or about December 22, 1995, at approximately 11:22 p.m., Appellant was arrested on West Confederate Avenue in the Gettysburg National Military Park, Cumberland County, by Lauren Gantz, Park Ranger. 4. Appellant was told to submit to a blood test to determine his blood alcohol content, but since he had not been driving he would not submit to the test. 5. Appellant was charged with violating 36 CFR 54.23(2) and was subsequently notified on or about February 16, 1996, that his Pennsylvania driver's license was being suspended for a period of one year which would go into effect March 22, 1996 12:01 a.m. A true and correct copy of the Notice is attached at Exhibit "A". I I II d fl II 116. Said suspension is improper and unwarranted for the following Ireasons: a) Ranger Gantz did not inform Appellant that his Pennsylvania operating privilege would be suspended upon refusal to submit to chemical testing. b) Ranger Gantz did not possess a reasonablQ basis to believe Appellant had been driving. c) Appellant was never informed by Ranger Gantz that he was not permitted to speak with anyone or consult an attorney prior to making a decision not to submit to a blood test. d) Appellant was never placed under arrest for violating Section 3731 of the PA Vehicle Code. e) Federal law preempts state law and the penalty for violating 36 CFR Chapter 1, Section 4.23(2) is found in Title IB, U.S. Code, Chapter 205, Section 311B. WHEREFORE, your Appellant respectfully requests your Honorable Court to grant him a hearing and deny the Commonwealth's request that his license be suspended and your Honorable Court to stay any and all suspensions. Date: "(f~@litt", Patrick F. Lauer, Jr., E 210B Market Street, Azte Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tal. (717) 763-1800 , T I" J " 1!XH181T A ........ COMMONWuALTH OF PENNSY~VANIA DEPARTMENT OF TRANSPORTATION 8~re~u 0' Driver Licensin~ H.rrisburg, PA 17123 FEBRUARY 16, 1996 NEW CUMBEMLAND PA 1.7010 '_0026442000316 OO~ 02l0'/J,"_ 1_5_U'1 06/24/1'53 MICHAEL JOSEPH MUMPkY 20\ 15TH S1 Dear Motoristl As a result 0' your violation of Section 1547 of the Ve~ hicle Code. CHEMICAL TEST REFUSAL on 12/23/1995. your driving privilege is being SUSPENDED '01' a period of 1 YEAR(S). \ In order to eOMPly with this sanction YOU are required to return any current driver's license. learner's perMit and/or temporary driver's license (ca.era card) in your possession no later than the effective dat. listed. If you cannot COM- ply with the requirements state~ above, yOU are required to submit a DL1'LC Form or a letter acknowledging the sanction of your driving privilege. Failure to complY with this no- tice shell result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571~a)(4) of the Vehicle Code. Although the law Mandates that your driving privilege i!S'un- der suspension eVlln if you do not surrender your license. Credit will not begin until all current driver's license product(s), the DL16LC Form. or a letter acknawledying your sanction is raceived in t~is Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE O~ ACKNOWLEDGEMENT. WE WILL SEND YOU A RECEIPT. I~ YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. UTHERWISE, YOU WILL NOT 8E GIVEN CREDIT TOWARD SERVING THIS SANCTION. Effective Date of Suspension: 03/22/1996, 12:01 a.m. .................................................................... IWARNING: If you are convicted for driving while your license is I Isuspended. the penalties will bel not less than 90 days imprison-I I.ent and a .1.000 tine and an additional 1 year suspension. I .................................................................... .- ~ '- .... (' . ~ t... "'1: "~~I """ '" ~. ~ J ~ Ij' J , .~ ...') r,\ , r 141 , .oJ -< ~ t "". 1- -.... i , .J ~ ."" , -\., t 'l:. "- ',- q 'P" llli ... ~it - ~~ J i~ ~ :S.. 'iq::~ ""i~"~~ ~! ~! ~E ;< rl U ~ PATRICK F. J.AlI EK. JR. Attorney at Law 1101\ MilI"'!.'1 SIn:n Allel.: HUlIJlnl,! C.Ullp Hili. p., I 7011 l7J7l7rll-I1iOll tl COMMONWEALTH OF PA. : IN THE COURT OF COMMON PLEAS OF DEPT, OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA BUREAU OF DRIVER LICENSING, 96-1447 CIVIL TERM Appellee v. MICHAEL J. MURPHY, Appellant JH.BE.i..J.ICENSE SUSPENSION APPEAL PECISION OF T.HE COURt AND NOW, ~ (~ , 1996, pursuant to the opinion flied this date, and after careful consideration of the parties' briefs, Appellant's license suspension appeal is denied. By the Court, George H. Kabusk, Assistant Counsel Office of Chief Counsel Room 103, Transportation & Safety Building Harrisburg, PA 17120 For the Commonwealth J. r"! -,'"" n , '-' '. -1'1' , I .. [. ~ il;n - (, ~ ~j . . ;::':> , .. ..'1 ;,-.:., ~ '.:l . ;,,,;-. " :..> :'.i r'J -< ~L7J,1,./..J.. >l1,,,u.L w//j)/~ ll/tl'- Patrick F. Lauer, Jr., Esquire Matthew J. Eshelman, Esquire 2108 Market Street, Aztec Building Camp Hill, PA 17011.4706 For the Appellant 96-1447 CIVIL TERM was soon assisted by Trooper Taylor. One set of footprints appeared around the vehicle besides Ranger Gantz's and Trooper Taylor's. Numerous empty beer cans lay In the truck. The driver's side floor board was wet with snow, but the passenger's side was dry, Murphy told the ranger that he was going home and denied that the road had been barricaded. He admitted to Ranger Gantz that he had drunk "a few." Ranger Gantz placed Murphy under arrest for operating a vehicle while under the influence. Ranger Gantz informed Murphy that he would be transported to the Adams County CUI center for a breath test. Murphy was verbally abusive and said that he was not going to take any test. Ranger Gantz left Murphy at the OUI center with Gettysburg Borough Police Officer Michael Hofe and Adams County CUI Coordinator Matthew O'Brien. Officer Hofe attempted to administer a breath test to Murphy. The parties stipulated that Officer Hofe read form CL.26 to Murphy three limes. Form CL-26. at the Chemical Testing Wamlng Section states: 1. Please be advised that you are now under arrest for driving under the Influence of alcohol or a controlled substance pursuant to Section 3731 of the Vehicle Code. 2. I am requesting that you submit to a chemical test of (breath). (breath, blood, or urine. Officer chooses the chemical test). 3. It is my duty as a police officer to inform you that if you refuse to 2 96-1447 CIVil TEAM before this Court on April 25, 1996. We address this appeal. QJJ.~ Despite the fact that he stipulated at the hearing that Officer Hofe read form Dl.26 to him three times, Appellant now asserts that: . At no time was he notified that he had violated Pennsylvania law and at no time was he arrested for any violation of Pennsylvania law.' (Appellant's Brief at 3.) We find this contention to be without merit because the form was explicitly clear. Appellant argues that Section 1547 (b)(l) of the Pennsylvania Vehicle Code does not authorize the license suspension of a person placed under arrest for a violation other than 75 Pa. C.S.A. ~ 3731. We disagree. The fact that Ranger Gantz charged the motorist with federal criminal violations but Officer Hofe did not charge the motorist with any violation is Irrelevant to this proceeding. The Department's suspension proceeding for a refusal to take a breathalyzer test is an independent civil proceeding separate and distinct from any criminal charges brought against a motorist. ~ommonwealth. 84 Pa. Commw. Ct. 63,478 A.2d 932 (1984). In order for a suspension for a refusal to submit to a chemical test of breath or blood to be sustained. the Department must prove that a driver was placed under arrest upon the charge of driving while Intoxicated. the officer had reasonable grounds to believe that the driver was driving while Intoxicated, that the driver was requested to submit to a breathalyzer test and refused and, where 4 96--1447 CIVIL TERM the issue is rais&d. that the officer fulfilled his statutory duty to warn the driver that his operating privileges would be suspended or revoked upon his refusal to submit to a chemical test. Commonwealth DeD't of TransD. . fJureau of Driver I.lcensing v. Webb. 139 Pa. Ccmmw, Ct. 1, 590 A.2d 28 (1991). apDeat denied. 529 Pa. 661,604 A.2d 252 (1992). Section 1547 of the Vehicle Code (the Implied Consent Law) is not penal In nature and is designed to protect the publiC by providing an effective means of denying intoxicated motorists the privilege of using the roads. W]sniewskl v. Commonwealth. 73 Pa. Commw. Ct. 318, 457 A.2d 1334 (1983). The purpose of the act, as Intended by the Pennsylvania legislature, is to keep drunk drivers off the roads. This purpose cannot be circumvented by a technical construction to exclude Murphy. Appellant next argues that Section 1547 (b)(1) does not authorize the license suspension of a person who was not driving on a highway or trafficway as defined by 75 Pa. C.S.A. ~102. He asserts that because West Confederate Avenue was not open to the pubiic at the time of the incident. it cannot be considered a 'highway' or 'trafficway;' therefore, the Department of Transportation Is without authority to suspend his driver's license. Appellant cites Commonwealtl:1 QlPennsylvania. Dep't of TransD.. Bureau of Qrlver LicenslnQ v. McLauQhlin. 124 Pa. Commw. Ct. 496, 556 A.2d 553 (1989), aDDeal t;fenied.. 524 Pa. 623, 571 A.2d 385 (1990) to support his proposition. ~Lau\lhlil1 held that an individual found in 5 96-1447 CIVIL TERM a parking lot of a condominium complex could not be required to submit to chemical testing because there we:a no reasonable grounds to believe that the Individual had been driving while intoxicated on either a trafficway or highway. Had Murphy's counsel researched more carefully, he would have discovered that ~ was specifically overruled by Deo't of Transou Bureau of Driver l.icensing v. eird. 134 Pa. Commw. Ct. 305, 578 A.2d 1345 (1!:l90) (en bane), aocaal Qranteq 527 Pa. 612, 590 A.2d 298 (1991). In fllrg, officers apprehended a visibly drunk man who was slumped behind the steering wheel of his vehicle with the motor running. The car was located in the common area of a parking lot where cars had to drive to reach marked parking spaces. ~,578 A.2d at 1346. The elm court declined to limit the applicability of Section 1547 (a) to those Instances when the police officer has reasonable grounds to believe that the person had been driving, operating, or in actual physical control of the vehicle on a highway or trafficway. The court stated: Furthermore, Section 1547 does not contain any limitation onwhere the driving or control over the vehicle must occur. ... I]f the legislature had intended for police officers to determine whether a given location was a trafficway or highway, It could have easily Inserted such a requirement in the statute. It did not, and we shall not. Accordingly, we must overrule ~Laughlin. and conclude that Section 3101 places no limitations on a police officer's request for chemicaltesllng under Section 1547. A request under Section 1547 Is valid as long as the officer had reasonable grounds to believe the person was 6