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Home My WebLink About00-00245 , SU ANN DIFFENBAUGH, Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 2000- .:lLU; CIVIL DEPARTMENT OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA, Respondent COURT ORDER ')<Jf:1.. AND NOW this <if 1 day of January, 2000, it is ordered and directed as follows: 1. A hearing is scheduled in Courtroom No. ~ of the Cumberland County Courthouse on the /1 tit. day of .a f W , 2000, at! J'O ~.M. The purpose of this hearing shall be to hear the petition for appeal of license suspension filed by Petitioner Su Ann Diffenbaugh in the above matter. 2. The suspension of the driver's license of Su Ann Diffenbaugh as noted in the January 6, 2000 letter from the Commonwealth of Pennsylvania Department of Transportation, Bureau of Driver Licensing, is hereby stayed pending disposition of the petition for appeal of license suspension and further order of this court. Office of Chief Counsel Pennsylvania Department of Transportation // ,"7\ BY THE cpu r " LW/J ~) /h~ h)l/l~OO 1t1<~ 1. cc: Hubert X. Gilroy, Esq. " , ~- ~--" ~ ,--, '= . n"" I"/If:[' , ...'t' !;- Ii" !-..,~ i''1 i "t" . ;~~' ,':~I':'~)7{t:(~~:' 00 I"''{' ' "":)7,/t9" Vhi/ \'j/ [ < <.1 l'~ CUMBr., " iFf/I: S5 PENN~~~~aUNl'y ) f"!III '" ",r, .r" ~,-,;. u" ~ 0 ~ -~~I; . . " - -'-", - .~"' -' ,-h. '-'" --- , ," ',-.', ',:; --,' 'QJ..'~,,: '~ "",.', '"' --, ,"= '''I f( SU ANN DIFFENBAUGH, Petitioner : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 2000- ~ '-15 CIVIL DEPARTMENT OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA, Respondent PETITION FOR APPEAL OF LICENSE SUSPENSION The Petitioner, Su Ann Diffenbaugh, by her attorneys, Broujos & Gilroy, P.C., sets forth the following: I The Petitioner, Su Ann Diffenbaugh, is an adult individual residing at 7 Longstreet Dirve, Carlisle, Cumberland County, Peunsylvania. 2 The Respondent is the Department of Transportation of the Commonwealth of Pennsylvania, Bureau of Driver Licensing, with main offices in Harrisburg, Pennsylvania. Correspondence is to be directed to the Office of Chief Counsel; Third Floor; Riverfront Office Center; Harrisburg, PA 17104-2516. 3 Petitioner was notified by letter dated January 6, 2000 that her Pennsylvania driver's license was to be suspended effective February 10, 2000 based upon an alleged violation of ~ 1547 of the Pennsylvania Motor Vehicle Code on November 10, 1999. A copy of said notice of said suspension is attached hereto and marked Exhibit "A". - -" '~''',~ ,- ,~ '"', ,- """"0.'"-;0,--,,, , 'I ,. " "'--"~'~~--'.' '<~";--~---' "'~:'-"''''''"''\' 4 Petitioner avers that there is not a basis for suspension of Petition's driver's license under ~1547 based upon any of her actions on the date of November 10, 1999. WHEREFORE, Petitioner prays this honorable Court to schedule a hearing on this petition for appeal of license suspension and, at the same time, issue a stay of the action of the Pennsylvania Department of Transportation suspending the Petitioner's license. Respectfully submitted, ubert X. Gi oy, Esq. Attorney for etitioner Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 . "- JililiC 1 I COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 JANUARY 06, 2000 SU A DIFFENBAUGH 7 LONGSTREET DRIVE CARLISLE PA 17013 993646112196648 001 12/30/1999 24360275 07/08/1966 Dear Motorist: As a result of YOUr violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL on 11/10/1999, your driving privilege is being SUSPENDED for a period of 1 YEAR(S). In order to comply with this sanction you are required to return any current driver's license, learner's permit and/or temporary driver's licl!lJ1se (camera card) in your possession no later than the effective date listed. If YOU cannot comply with the:'requirements,stafed above, yoU are required to submit a DL16LC 'Form ora, sworn affidavit stating that YOU ire aware ~f the sancti'n a~ainst your driving privi- lege. Failure tD comply wit,h thjs notice shall result in this Bureau referring this matter to the Pennsylvania State PDli~e fDr prDsecutiDn under'SECTION 1571(a)(4) of the Ve- hicle Code. Although the law manda~es that YDur driving privilege is under suspension even if YOU dD not surrender your license, Credit will nDt begin~ntil all current driver's license product(s), the DL16LC Form, Dr a letter acknowledging your sanctiDn is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The effective date of suspension is 02/10/2000, 12:01 a.m. ******************************************************************** IWARNING: If you are convicted for driving while your license is I Isuspended, the penalties will be: not less than 90 days imprison-I Iment and a 1,000 fine and an additional 1 year suspension. I ********************************************************************' ,EXHIBIT I~ ~~IllI_i1"ili.aI!!H;lbll~~~~~ii'ill_>lli1I","ofti3"-Jt","~iliIW~~-."'Il~-.fiI''''''''''.--'-"'_.~~-, .,' ~"'~~ - .~ .__..l -~; , 0 0 0 C 0 "" -ll XJ ~ ~ ~ vm (- :-:;:1 :c.. ~~ ~q:) Z .~:'- '-l f4:. ~~ n1F . '"D? ~ . W ~'"J B ~ :z 0 a ~ B ~o > :ti~ ~8 :l: b'TI ~ (') ( I :l>c: 1.0 iSm :z .. "'C) 1:) ~ '7' =< 0 :!O "'-.) ~ (Jl -< J . -'-" 'Ii*k t APR 1 3 2000tP SU ANN DIFFENBAUGH, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL V ANlA' v. NO. 2000-245 COMMONWEALTH OF PENNSYLV ANlA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL ORDER AND NOW, this R day of -D:r r...J/ , 2000, upon motion by the Department of Transportation, the hearing in the above referenced appeal is continued and rescheduled for the 5-fJ1 day of r d of the Cumberland County Courthouse, Carlisle, 2000 at 330 f2.m, in Courtroom Number Pennsylvania. BY THE COURT: -"~/-? \"'~ " 1'_' J' :'/ ~\1'OO i~3 , ~ , ! J. Distribution: l George H. Kabusk, Esquire, Department of Transportation, Riverfront ~ce Center- 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 Hubert X. Gilroy, Esquire, Broujos & Gilroy, 4 North Hanover Street, Carlisle, P A 17013 "I \ ~- Ill. . Of Ft::L} 1"11,]'; -' (X=F\Ci: ",-\",,\1 -' nIl' ,,' "l~ ^Q ~~i-'l \i.J' /. J{ 00 ~\pR \ 1 CUWQ'~'1i 1',.,0 CCAJ\'ffY l 'p";O:, ;,:0.\(\ V(!,fili'\ C\'ilX'... L~, . ~f ~~ ~ ..-. ,.",.,~",,<&-,,1;U !P!I',~~!I!II'"-_" " _C'~ . _';"""'''''''" '0'" ," ~~~I~~ '- \,1 "' '-ji :... r~ ~ .1 .. SU ANN DIFFENBAUGH, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-245 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRNER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL MOTION FOR CONTINUANCE The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department), by and through its attorney, George H. Kabusk, Esquire, respectfully represents as follows: 1. The Department mailed to Su A. Diffenbaugh, O.L.N. 24360275, a notice dated January 6, 2000, informing her that as a result of her violation of Section 1547 of the Vehicle Code, relating to Chemical Test Refusal, on November 10, 1999, her driving privilege was being suspended for a period of one year. 2. Su A. Diffenbaugh filed an appeal of the above-mentioned suspension. A hearing in the matter is scheduled for April 17 , 2000, at 1 :30 p.m. in, Courtroom 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. 3. Officer Matthew J. Kennedy of the Carlisle Police Department reported the refusal to the Department of Transportation. 4. Officer Kennedy transported the petitioner to the West Shore Booking Center for a " ,I - ~ 'f ... . , ... breathtest. 5. Daniel Lutz of the West Shore Booking Center was the breathtest machine operator. 6. Daniel Lutz is a witness for the Department of Transportation in this matter. 7. The undersigned has been inform by the Cumberland County Dill Coordinator's Office that Mr. Lutz has been scheduled for vacation on April 17 , 2000, and, therefore, will be unavailable to appear as a witness on April 17, 2000. 8. The undersigned counsel respectfully requests a continuance and the case be rescheduled. 9. The motorist's operating privilege has been restored pending appeal pursuant to Section 1550 of the Vehicle Code. 10. The undersigned counsel contacted Hubert X. Gilroy, Esquire, attorney for the petitioner, and Attorney Gilroy indicated he has no objection to the granting of a continuance in this matter. WHEREFORE, the Department respectfully requests that its Motion For Continuance be granted and that the aforesaid hearing be continued. Respectfully submitted, A~ c~' , George H. busk, Esquire Assistant Counsel Office of Chief Counsel Riverfront Office Center 110 1 South Front Street. Harrisburg, PA 17104-2516 , .. Date: April 13, 2000 . ,~ (717) 787-2830 'I . / " . ~ ." ...'~ ~ ~ ,.,.l~ ~ .~ I "I"'" ,.... t ,'" . I ,", SU ANN DIFFENBAUGH, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-245 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRNER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL VERIFICATION I verifY that the statements made in the Motion for Continuance are true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. J;:LJ~L Assistant Counsel Department of Transportation Riverfront Office Center 110 1 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: April 13, 2000 -,' ~ "~. II ~ " - - '~~ . ."" ~ ,,", . , ." SU ANN DIFFENBAUGH, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-245 COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I hereby certifY that I am this day serving a copy of the Motion for Continuance upon the person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania Rules of Civil Procedure: By first class mail, prepaid, addressed to: Hubert X. Gilroy, Esquire Broujos & Gilroy 4 North Hanover Street Carlisle, P A 17013 Goo<g<~4d( Assistant Counsel Department of Transportation Riverfront Office Center 11 0 1 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: April 13, 2000 (') f:7J ,'~'" {-:,:) ''1 1 '- ~ "'-,., ::~ u e- rn U .. z: ';';,~i 7: ; OJ '1.-. GJ re' , --" ~ / (') :-<: ('] > c: 2~ ~ - - -j .t::- .3.-] -< ~~ " -, ' ,A'~ 'I ,I '," _<" ,_ f .,. SU ANN DIFFENBAUGH, PETITIONER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA. RESPONDENT : 00-0245 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this ~ day of June, 2000, the within appeal from the Hubert X. Gilroy, Esquire For Petitioner ~-t1. L -Jq-tJO RK5 George H. Kabusk, Esquire For Respondent :saa - , ""- ' '~, ,~;- ,',,: --~ -.. :f;,~. ;. ,:.: (,,' - r: ".'< 5~: "",,,',,C_ , " C) c~ .:;:--,-. -'1 --, ~,1' r -".r ,? : -;( .,'- I,D "T:' :..') ~ -; ( ': 5i'''( ,-_-~-f :..T) -.;; --i -<; '"J 0.) ill . HI ... '--' ,,9- \ r)'~ .};.J v\'\ .) \.('''' " . \ \~\ \ " ',\ \~~i '\ \,'" ",' "'J\ r\\) J~' .., I, ','_I v, 'e'~:),~ "\\"' ~o:;:.V~"" :::',I~\ll-'\\ ' (" \~l\V';'~\"S:>' ' VV \?O~\' ",\ " .. ,~..~....... "',,,',',",,,, < r ~ ' ~~~~ .~...,.~._ "...~~~........,,"",~~,!II!il!I~IQIIJllII~~ " ., ~ , ,~ "',- '_ '~"'"""'.'''~O' ,,- . i:.",-;^t,",,~, ; ',c~~ .,._,,_,,":~'~; .,,&'"~i0;')_,(,'.'_ . ~ SU ANN D1FFENBAUGH, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, RESPONDENT 00-0245 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE BEFORE BAYLEY. J. OPINION AND ORDER OF COURT Bayley, J., June 19, 2000:-- Petitioner, Su Ann Diffenbaugh, filed this appeal from the suspension of her driving privilege for one year by respondent, Department of Transportation of the Commonwealth of Pennsylvania, for refusing to submit to a chemical test pursuant to Section 1547(b)(1) of the Vehicle Code, that provides: If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. A hearing was conducted on June 5, 2000. We find the following facts. On November 10, 1999, Carlisle Police Officer Matthew Kennedy was dispatched to a hit- and-run accident involving damage to a parked car. He located petitioner, who he .' .. , '-"-,,,c', ,~_;' ,- ',-' ~, ; "_I ~ " " ,_ ,'._' ~ '" ,,~i '~ ' ~ 00-0245 CIVIL TERM determined had caused the accident and had left the scene. He then determined that there was probable cause to believe that petitioner was under the influence of alcohol to a decree that rendered her incapable of safe driving. Officer Kennedy arrested petitioner for driving under the influence and took her to the Cumberland County Booking Center. At the center, Officer Kennedy read petitioner her rights under the Implied Consent Law and asked her to take an Intoxilyzer test.' Petitioner consented to taking the test, which was performed by a booking agent, Daniel Lutz. Agent Lutz testified that the machine was calibrated and operating properly. He instructed petitioner of how to blow into the mouthpiece. As a videotape was running, petitioner blew into the mouthpiece many times but did not blow enough air into the machine to register a valid test. Agent Lutz and Officer Kennedy repeatedly told petitioner that she was placing the mouthpiece on the roof of her mouth, which prevented a sufficient amount of air from entering the machine. They repeatedly told her how to blow into the mouthpiece properly. When petitioner continued to blow an insufficient amount of air into the machine, Agent Lutz changed the mouthpiece, and again instructed her how to properly blow into the machine. Petitioner, however, continued placing of the mouthpiece on the , Section 1547(b)(2) of the Vehicle Code requires that, "[i]t shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing." The warnings Officer Kennedy gave to petitioner included telling her that her driving privilege would be suspended for one year if she refused to submit to chemical testing. -2- ,~, ,,~ 'r. . ,,~ ", , -', ,[" ^ ~',-;-,; ,~.''-",",'~'--'i'"',, " 00-0245 CIVIL TERM roof of her mouth while haphazardly blowing an insufficient amount of air into the machine. The machine had printed three test tickets at 2:41 a.m., 2:45 a.m. and 2:51 a.m.; however, it designated each test as a deficient sample. At 2:50 a.m., Agent Lutz informed petitioner that her conduct constituted a refusal to submit to the test. Petitioner testified that she tried to blow sufficient air into the machine but was unable to do so. She acknowledged that there was nothing medically wrong with her and that she had been advised of the consequences of failing to provide a sufficient amount of air to register a valid test result. In Pappas v. Commonwealth Department of Transportation, 669 A.2d 504 (Pa. Commw. 1996), the Commonwealth Court of Pennsylvania stated: In order to establish a prima facie case in support of a Section 1547(b) license suspension, DOT must prove inter alia, that the licensee refused to submit to chemical testing. DOT need not establish that the licensee objected to taking the test. Yi v. Department of Transportation, Bureau of Driver Licensing, 164 Pa.Cmwlth. 275, 642 A.2d 625 (1995). 'It is well established law that where a defendant, when taking a breathalyzer test, does not exert a total conscious effort, and thereby fails to supply a sufficient breath sample, such is tantamount to a refusal to take the test.' Appeal of Budd, 65 Pa.Cmwlth. 314, 442 A.2d 404, 406 (1982). Even a licensee's good faith attempt to comply with the test constitutes a refusal where the licensee fails to supply a sufficient breath sample. Vi. A refusal is supported by substantial evidence where the breathalyzer administrator testifies that the licensee did not provide sufficient breath. See Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa.Cmwlth.), petition for allowance of appeal denied, _ Pa. _, 665 A.2d 471 (1995) (officer's testimony that licensee did not make a 'proper effort' was sufficient to meet DOT's burden regarding refusal); Books v. Department of Transportation, Bureau of Driver Licensing, 109 Pa.Cmwlth. 25, 530A.2d 972 (1987) (officer's testimony that licensee did not provide sufficient breath and stopped blowing as soon as he saw the machine register was sufficient to meet -3- _"_",,,__,>-,.';C" -",,1,1, - " ,,-, .. ,,' -. ",,: .~" ' ~~, 00-0245 CIVIL TERM DOT's burden); Budd (officer's testimony that licensee failed to tighten his lips around the mouthpiece of the breathalyzer was sufficient to prove refusal). If DOT establishes refusal by utilizing the testimony of the administering officer, it need not prove that the machine was in proper working condition at the time of the test. Books; Budd. That is, once DOT establishes refusal, the operability or suitability of the breathalyzer is not at issue. Books; Budd. Alternatively, DOT may establish refusal under these circumstances by presenting a printout form from a properly calibrated breathalyzer indicating a 'deficient sample.' Department of Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa.Cmwlth. 185,624 A.2d 792 (1993); Pestock. In this situation, proper calibration. may be proven by either documentary or testimonial evidence. See Lohner (calibration established by stipulation); Pestock (calibration established by testimony of administering officer); see also 67 Pa.Code 9 77.25(c) ('The certificate of accuracy shall be the presumptive evidence of accuracy referred to in 75 Pa.C.S. 9 1547 (relating to chemical testing to determine amount of alcohol or controlled substance).'). Once DOT has presented evidence that the licensee failed to provide sufficient breath samples, refusal is presumed and the burden of proof then shifts to the licensee to establish by competent medical evidence that he or she was physically unable to perform the test. Pestock. The Court noted that: DOT, for the purposes of establishing refusal, introduced into evidence two printouts from the breathalyzer which indicated that Pappas provided insufficient breath samples during the chemical tests conducted by Officer Mentesana. Regarding the calibration of the machine, DOT presented the testimony of Officer Mentesana who stated that the breathalyzer had been calibrated within thirty days of the date on which it was administered to Pappas. Further, although Pappas stated she had respiratory problems, no medical evidence of such problems was presented by the defense. (Footnote omitted.) In Pappas, the Commonwealth Court reinstated a suspension of driving privileges which the trial court had reversed on a finding that DOT had failed to present documentary evidence that the breathalyzer was properly calibrated. In the case sub -4- .~" _r , ,~",,", ~_'~'_>'-'''''~<' '^'"' '_ '.d' ".' ".;".- ~ 00-0245 CIVIL TERM judice, testimonial evidence was presented that the Intoxilyzer was properly calibrated and working properly. It is obvious from viewing the videotape that petitioner was not blowing a sufficient amount of air into the machine to register a valid test. DOT has met its burden of proof, which requires that we dismiss petitioner's appeal from a one-year suspension of her driving privilege for not blowing a sufficient amount of air into the Intoxilyzer to register a valid test. AND NOW, this ORDER OF COURT 'C\. k day of June, 2000, the within appeal from the suspension of petitioner's driving privilege for a period of one year, IS DISMISSED. By the-Bourt, Hubert X. Gilroy, Esquire For Petitioner George H. Kabusk, Esquire For Respondent :saa -5- Sv fh,tll\ 1) \' t*6/1 ba-ol.1 v, Dl(>\r-. or.--IV~~WI CO-z..l-lS" C,vll , _,' ,,',,-_','_.';:, ,,,' 'j,t;, , "' ",.,,~ ,"';'''c'_ _ ",< I ' " ~' , - () c: ;: CD gJ !; z o () o c: ~ o S o m " :-< > g 3 o ~ ~ z Il ~ ~r ~mc is ~ -I prv II ~ ~ m ~ > ~ ^ ~ :>- r.. ... ,. r j;;> !o ~- ~UI I e- ft' J;> 't. Z-. +- r-- , ,- i () c: ;: CD ~O m JJ m !; t "'.... z ~U'\ Co 0 r V" () r' N' g m ( ~ Z > n\ :! ~ c 0 ~ p SO > 0' ~ Z m Il ~ ~ 0 ~ rile. 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