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HomeMy WebLinkAbout96-03132 -to ~ @j! ~ c '- .,.. .,. ~ r() - gi do -1 0 IIu ~ - ~ () 3 '1' "7 ::t- :2 ".., l(1 - n~ t r/1 ...,. .'- I.t\ - :5ai 0 ", I ~ Ii tl:l~i ~ 'lit ~ ~ <.( r- -) - -, ("t] l/; ~J ~j '0 d c\ Q Z :s ~ rn !;i!Sij ~ ~~~~~ ~ olJ)(tIliiji=:' ~ o~all:c ~ 8ci:C~~ <( ;;J ':it!lo -l ~~~~iE rn u ... 8 < rn . . . t'"'" . ". .. 9 .- .. I,"' SAlDIS, GUIDO, SHUFF & MASLAND 26 W. "llh S...., CarlI.I., PI. . r . , . . , . DAVID ALEXANDER LUCIANO, t'laintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. COMMO~IEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Defendant NO. 96-.:1 13../.. CIVIL TERM APPEAL OF LICENSE SUSPENSION AND NOW, c:omes Plaintiff David Alexander Luciano by and through his attorneys, Saidis, Guido, Shuff & Masland and files this Appeal from License Suspension and represents as follows: 1. Plaintiff David Alexander Luciano is an adult individual residing at 90 Lindsay Lane, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Commonwealth of Pennsylvania Department of Transportation is a Commonwealth agency with a principle place of business located at Transportation and Safety Building, HarriSburg, Dauphin County, Pennsylvania. 3. On or about January 31, 1996, New York State Department of Transportation issued an Order of Suspension or Revocation to Plaintiff David A. Luciano for a conviction of Section 1192(1) of the Vehicle and Traffic Law of New York State, which indicated a 90 day license suspension. A copy of the initial Order of Suspension or Revocation is attached hereto as Exhibit "A". 4. On or about February 7, 1996, the New York State Department of Motor Vehicles issued a subsequent Order of Suspension or Revocation, which indicated a one (1) year license suspension, A copy of this second Order is attached hereto as Exhibit "B". , SAlDIS. GUIDO. SHUFF &. MASLAND 26 W. "1,ft 51recl C",U.I., PI. , . 5. The February 7, 1996 Order of Suspension or Revocation was inaccurate in that it had an improper date of birth of Plaintiff, an improper basis for suspension (underage drinking) and an improper length of suspension. 6. In addition, the New York State Department of Motor Vehicles forwarded a copy of the February 7, 1996 Order to Defendant. 7. On February 28, 1996, New York State Department of Motor Vehicles issued a subsequent Order of Suspension or Revocation correcting its previous error. A copy of the February 28, 1996 Order is attached hereto as Exhibit "Co. 8. Plaintiff was convicted of New York State Statute 1192(1), driving while ability impaired, which states: No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol. A copy of the statute is attached hereto as Exhibit "D". 9. Driving while ability impaired is a traffic infraction under New York State law and is punishable by a fine of not less than $250 or more than $350 or by imprisonment for not more than 15 days or both. A copy of the New York State statute is attached hereto as Exhibit "E". 10. Pennsylvania has no comparable statute to the driving Ifhile ability impaired statute in New York State for which Pl~intiff was co~victcd. 11. On May 16, 1996, Defendant Commonwealth of Pennsylvania Department of Transportation issued a Notice of Suspension to 2 . . ' ARr 31 VI:1l1CLC AND TIlAFFlC U.W 9 1191 HlSl'OIlY: A.w. L 198ij. ,Ii 47. ~ II. ..r Nt,. I. Iq~~ former Arc 3\ (U 11'10-1196), .ud, L 19~9. eli 775. with .ub.tlIII,.. tr,,",fured from former An 5; rcpealoo. L 1988, eh 47. ~ Ii, dY No' I, \~8. CROSS Rl::n:RENCES. Thi. orIiele refuTed 10 in , SOI-.. 1-'-'- . ...-....- .. -"- I Aat...nt", 0...... and ""notalions refc:rrcd 10 be rein """ be further ' resew'chcd through the Autn-Cite com IIte'T 1I.....i'ted research service. U"" Au<<rCite 10 che<:k citntion., for ?arm. p;u".lllcl references, prior J and later history, Illld lIDnot"lion referemee.,;. -.....-. .-.- -.... g 1190. (R~ed] tlJbTORY, Add, L 19'9, eh 715, ..ilh ,ubstance tnulsfcrre" Irolll fanner ~ 58; repealed, L 1988. eh 47, ~ 18, elf Nov [, 1988. ~ 1191. [Re~~] Hll>TORY: Add, L \959, eb 775, with ,ubslat1ce lransferml from former ~ 55-0; amd, L 1960, eb 300, ~ 52; rcp<:aled, L 1988. eh 47, i 18. o:tT Nov I, 1988. g 1192. Openitinll B UIOtor veblcle wblle under the inllucnce of alcohol or drllRll 1. Driving while ability impairl-d. No persOtl ,hall operute a motor vehicle while the person's ability to opemle such motor vehicle is impaired by the consumption of alcohol. 2. Driving while intoxicated; per so, No person sball operate a motor vehicle while such per.lon hll8 .10 of one per C1'ntllm M mnrc hy weight of alcohol in the p:rson's blood as showlI by chemical analysIS of such person's blood. hreath, urine or saliva, made pursuant to the pro"isions of section eleVl'll hw.dlcU uwc:ty-four of this nrticle. 3. Driving while intoxicated. No pL'l'SOn shall opL'fate n motor vehicle while in an intoxicated condition. 4. Driving while ability impaired by drug:;. No person shull operate :\ motor vehicle while the pcCSon's ability to operate such :1 ml1tor vehicle is impaired hy the ll'\e of II dru~ lIS detinl-d In this chapter. S. Commcrcinl motor vehicles: per sc - level r. Notwithstatlding the prmi- sions of s<:clion eleven hundrc'd ninety-live uf this .miele. no persun ,hall operate 11 IolOmm.rciAI motor ""hide whil.. "'"'' I",rson bas ,04 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood. bn:ath, urine or saliva, made pursuant to the proviaion.!l of s""tiol1 eleven h'Jndr..d nin.ty-four of this article; provided, howl!lvcr, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section. ~ -------.--..... I. ' ! I ;11 'I. .. -I ,.-, f' " ! I I ( I I I I I t , . ~ "" , t I " .\ i. ~ ~ I' I 1\ /' If \ M';_ :." p :~) I, I J! ( 'i' rill, ; 1"(" - . '/Ii:"" ..-.......... .:..~~..; _..-_~-'r. 'J .' .:';' Exhibit E ., ~ 1192 CONSOLIDATED LAWS SERVICE ART 31 (Ii) the 1WIlfS, IlldRaca, ond lelepbone aumbon of !UCb wi_ if they be clvIIlI.tts lIlId the -. ,Wold a_bon. OIId lIAlgamcn\$ of IUch wl_ It \hey be polll;c olllQOn; 4. tIM dalC8 of birth IIId N.... York Scale, ~o Rkan. &lid federa1 cri.mineI roconIa of all witn_ the People iatcnd 10 call 01 the IrieI or any hcuin. In \hJ$ -ltIt1 ODd II ....y I""b wilD_ haw received lostiturional pe)'ChlAtrio _11II...1, \he dalCll IlId places of luch lns1iI\IliowlIlDlIoa: ,. the 1llIlII", Iddr...... and dald of birth of lIlIY OIId ell penD1lS whom the People mlm<! to call .. wItn_ .. trial, or It lUly hr.orinl In .bl. ""_. .h..... tommnny may be fevcrabt. 10 m. defendant OIl any issue, or in the a1len1ati.e, an opportllllily 10 Inmvtow \helle wl_ al a lime and pllu COIlvculcnl 10 both defOllJC COUIlH! and thePeop!e; 6. the IllIlIId, addresses, and dalu of birth of any and all .,;1Il..... to \he alIeJed crime In Ihb mallcr or 10 the dcfctldaal'l anal. or \he c:vetl1S ImmN1I'Ie1y Pf1CI<<""a or followina sueb ural or crime, wbom tho Peopl. do not iateud to i:al1 at trial. tosr:her wilb Ibm ",I...nl writl.., or ...-rord"" "At..".",to oM tM Olttrict Alt<>mI)". data oboe! reflomnl the sub&t:mce of any non.r=nIed ora1llalcmcnta: 7, lbe lWIIU and addtcssc.1 of all putative wlmesses to any of \he lIIA\ten dcscribcd in 10b-patIllRllb "11(1)" above wboac Identities arc known to the People: b. tbe exact date, time, lIlId place at whicb tbe defendant wu ant sei2zd: I. lIlIY .m\tctl report or documenl, or portion thcmlf. concerning a pbysic:a1 examl. aalion, A sci..,li5c .esl or ..porimeal. inoladio8 the moo. _t record of ~, or calibration or rtpair of lIIAchines or wlI'U11IenlS utili%ed to perform sucb ac:icntille tulS or expcrimenta IUld certiftcation ccni5cale. If any, beld by the operator of the machine or inslt\llnenl, which testa or CAlUDin.tiOllS were made by or at tbe rcqucat or d1=t10D at . public ..,.,11I1' C118"8"'1ln law c:nl\m;cmcn. acdvll)' or wbleh was mad. by a pcnoa wbom the l'fI*Cutor intends to caIJ .. a ..itneos at IrisI. or which lbe people intend to introduce at trial; Th. del""daa." requ.... COUIpu.u."" with lhla _4 on or Won _j__19-L.o DATBD: . I. -' [Altonlcy for Defendant) [Form funlisbed Ihtoagb the court..y of Lloyd Epslein of Ibe New York Bar) o 1193. Satu:tlons I. CrimJ.naI pcDAltie.,. (0) Driving while ability impaired, A violation of subdivision one of section eleven hundred ninety.two of this lU'ticle shall be II traffic infrac. lion IlDd shall be punishable by II tine of Dot less than two hundred fifty dollars nor more than three hundn:d fifty dol1ars or by imprisonmcot in a penitentiary or county jail for not more than fifteen days, or by both such line and imprisonment, A person who opcn\tcs a vehicle in violation of such subdivision after having been convicted of II violation of any subdivi- sion of section eleven hundred ninety-two of this article within the preceding five years shall be punished by a fine of not less than three hundred My dollars nor more than five hundred dollan. or by imprison- ment of not more than thirty days in a penitentiary or county jail or by both such fine and imprisonment, A person who operates a vehicle in violation of such subdivision after having been convicted two or more 66 .' 5. The Commonwealth Court on July 29, 1996, in David 1. Sullivan v. Commonwealth ofPennsylvaoia Department of Transportation, Bureau of Driver Licensinl:, No. 2786 C.D, 1995, issued an opinion regarding the Compact. Copyauached. 6, In Sullivan the Commonwcalth Court held that the Department docs not have authority to sllspend a driver's license based on an out-of-state conviction pursuant to the Compact. 7. The undersigned counscl has been infonned by his superiors that the Department will be filing apetWolI/or allocalllr to the Supreme Court in Sullivan. 8. The Commonwealth Court on May 31, 1996, in David James Olmstead v. Commonwealth of Pennsylvania Department of Transportation. Bureau of Driver Licensini:, No. 3251 C.D. 1995, issued an opinion regarding the Compact. Copyallached, 9. In Olmstead the Commonwealth Court held that a New York driving while ability imparted statute is not substantially similar to the Pennsylvania driving under the influence statute, therefore, the Department did not have authority pursuant to the Compact to suspend the driver's ('lperating privilege based on that out-of-state conviction. 10, The undersigned counsel has been infonned by his superiors that the Department filed a petitioll/vr allocatur to the Supreme Court in Olmstead. II, The undersigned counsel requests a continuance to allow the Supreme Court to act on the above mentioned petitiolls/or allocatur. 12. The motorist's operating privilege has been restored pending appeal pursuant to Section 1550 of the Vehicle Code. 13. The undersigned counsel contacted Scoll D. Moore, Esquire, allomey for the petitioner, and Mr. Moore indicated he has no objection to the granting of a continuance in this ~ C) ?; c:; 0,- ., :3...... ~2 _'I {J. ~~ @~ :t: '::~~ u.. \. ~"'.~ co :.:..;,~ ~ 1-- (l' (,;. " '}F:J ~ .. , u. ;a:; -~ ,~ ~ CO -::J a> U , . ';I" MAl-< I 9 1998r - Commonwealth of Pennsylvania, Department of Transportation, BIITeall (!t'Drivel' L/een.v1ng, 682 A.2d 5 (Pa, Cmwlth. 1996). 5. The .uspension which is the subject of this appeal is based on the Driv.:r's license Compact, 6. The Commonwealth Court on July 29, 1996, in Su//lvan v. Commonwealth (!t' Pennsylvania, Department of Transportation. Burellu of Driver LicI'/ulng, 682 A.2d S (Pa. Cmwlth. 1996) held that the Department did not have authority to suspend a driver's IIccnse based on an out-of-state conviction pursuant to the Driver'~ License Compact bccause it had not been properly enacted into law, 7, The Supreme Court accepted petition jar a//oeatul' tiled by the Department. 8, The Supreme Court allinned the order of the Commonwealth Cnurt in Slllllvan v, Commonwealth of Pennsylvania, Department afTransportatlllll, BI/reall olDrlver Lken.rlng, No. 0023 W,D. Appeal Docket 1997, in an opinion iS8ued on February 26, 1998. 9. The Department had no authority to suspend the motorist's operating privilege in this matter because the Commonwealth had not properly enacted the Driver'l license Compact at the time when the Department took this action. 10, The Commonwealth enacted into law the Driver's license Compact by Sectton 10 of Act of 1996, Dee, 10, P,L. 925, No. 149, effective December 10, 1996,at 7S Pa. C,5, 1581-1585. II. The enactment of the Driver's License Compact has nn effcct on this suspension which was based upon the Driver's License Compact before it was enacted. See Morcland v. Department of Transportation, 701 A.2d 294 (Pa. Cwmth. 1997). 12. The motorist's operating privilege has been restorcd pending appeal pursuant to Section 1550 of the Vehicle Cede.