HomeMy WebLinkAbout00-03010
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CHEMICAL TESTING WARNINGS AND REPoFiT"OF "';,' -..'
'REFUSl'<L TO. SUBMIT TO. CHEMICAL TESTING AS .
AUTHORIZEOBY OF THE"VE'H!CLE'CODE
. DL.26 (7-?4)
61.1.2
3271.80
SECTION 1547
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NAME.
FiRSt:.. . . -
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SEX
MIDD1.E' -,
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CAST R ot; Q. V't's: ,"
/'1
DATE OF BIRTH
MONTH DAY . YEAR
0:;2 -:77 C,Lf
ADDRESS'
CITY
. STATE
ZIP CODE
/3 w:P,Yle sf:
000 '7/q ;?~
jV/-!: IloIIS 5f'EJ s. Po." {7Db5
. ,STA'l:'E .~ CHeM TEST REQUEST DATE . 'SOCIAL SeCURITY NUMBER
. F MONTH . DAY YEAR j'" J:t
Pc.., 0 :<. 0 5" 0 0 ;;( I ~ -"
DRIVER NUMBER
, , SECTION 1547 - CHEMICAL TESTING WARNINGS \
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1. Please be' advised that you ate now under arrest for driving und~r the influen'ce, 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 A/ 1'70 r7 (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 submit to the chemical test your operating privilege will be suspended for a
p~riod of one year.
4. a) The constitutional rights you have as a criminat defendant, commonly known as the Miranda Rights, including the right to speak with a lawyer and
the right to remain silent, apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied
Conse-nt Law, which is a civil, not a criminal proceeding. '.
b) You have no right to speak to a lawyer, or anyone else, before taklng,the chemical test requested by the police- officer nor do you have a right to
remain silent when asked by the police officer to subm.it to the chemical test. Unless you a.Qree to submit to the test requested by the police officer
. your conduct will be deemed to be refusal and yo,ur operating priviJege will be suspended {or one year.., .. < . '
c) Your refusal to submit to chemical testing under the. Implied Consent Law may be'introduced into evidence"in a criminal prosecution tor driving
while under the influence< of alcohol o.r a cOT'!.tr9lled ~ubs~aI}9Jl'. __. ~ ~
I certify that I have read the above warning to the m orist regarding the suspension of their operating privilege and gave the motorist an opportu.
nity to submit" to chemical testing. .
Signature of Officer: Date: - 0:2.. - t? <: - (-y.::::;
I have been advised of the above, /7 ,.-".-// ,-_
Signature of Motorist: ..K C-t::'JA" ,<; L- 27
Motonst ,efused to sign. afte' being advised. (\, ~_~ ~
Signature of Officer: XJ//~__._'-i? ~
Date: 0;;>"- C? 5- =
Date:
o;z, - D5 . DO
AFFIDAVIT
1. The above motorist was placed under arrest for driving under the influ~ence of alcohol or a controlled substance in violation of Section 3731 of the
Vehicle Code, and there were reasonable grounds to believe that the above motorist had been driving, operating or in actual physical control of
the movement of a mot~ehicle while under the influence of alcohol or a controlled substance or both.
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That the above named mtl'lbrist was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required
treatment at a medical facility or was killed.
2. The above motorist was requested to submit to chemical testing as authorized by Section 1547 of the Vehicle Code.
3. The above motorist was informed by a police officer of the chemical test warnings contained in paragraph 3 and 4 above.
4. The above named motorist refused to submit to chemical testing,
OFFICER NOTE' The refusal to sign this form Is not a refusal to submit to the chemical test. You must stili give the motorist an opportu.
oity to take the chemical test after reviewing this form. 11 the Individual was operating a commercial motor vehicle while having any -
alcohol or a controlled substance In their system, you must also ~omPI~te the reverse ~e :1 this form. L
suescR18ED....NOSWQAN if Officer Signature: A").c,_ --=--/ J /7 ~
TO BEFCAE ME_ DAY /" YEAR 00
Officer Name:
:D&{aV1~ /.., .?e./o"",
(Type or Print}
Forward to:
Department of Transportation
Bureau of Driver Licensing
P.O, Box 60037
Harrisbu'g. P A 17106-0037
THIS FORM MAY BE DUPLICATED
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Badge Number: ..J-
Phone: <.21.:2.) Y'R'? -' 7?' /5
Mailing Add'ess /tr r: ,L,?,~j Y:J
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Jurisdiction: hi- h()/~ ~ '5
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Note: Any pertinent acts not covered by the affidavit should be submttted on a
separate sheet and attached hereto. That sheet should include the names 01
additional witnesses necessary to prove the elements to which you have attested.
ADDITIONAL SUPPLIES OF THIS FOAM MAY BE SECURED BY COMPLETING FORM OS.511A
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DERK EDWARDS ROBERTS,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 2000-3010
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRNER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this ~ day of
, 2000, the
Department having requested that the above-mentioned matter b continued because Chief
Duane L. Lebo, who is the arresting officer and a necessary witness in this matter, is unavailable
to testify on July 27, 2000, and without objection of the continuance by the petitioner, the appeal
filed in the above referenced matter is CONTINUED and RESCHEDULED for the 5th
day of October, 2000, at 8:45 a.m., in Courtroom Number 2 in the Cumberland
County Courthouse, Carlisle, P A
BY THE COURT
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DISTRIBUTION: I
George Kabusk, Esquire, Riverfront Office Center, 1101 South Front Street, Harrisburg, P A
17104-2516
Patrick F. Lauer, Jr., Esquire, 2108 Market Street, Camp Hill, P A 17011
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DERK EDWARDS ROBERTS,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
CIVIL ACTION - LAW
NO. 00-3010 CIVIL TERM
ORDER OF COURT
AND NOW, this 5th day of October, 2000, this case is
continued for further testimony to be taken at 11:30 a.m.,
Monday, October 16, 2000.
By
J.
George H. Kabusk, Esquire
For Department of Transportation
Patrick F. Lauer, Jr., Esquire
For Petitioner
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DERK EDWARD ROBERTS,
Appellant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
.
.
NO. OO~JO/O Cu~L~~
:
v.
.
.
.
.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING,
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
.
.
ORDER OF COURT
AND NOW this J;J(}(/. day of ~ 2000, upon
consideration of the within APPEAL OF OPERATORS LICENSE SUSPENSION,
.,.
matter at on the
it is hereby ordered that a hearing shall be held regarding this
a'fA day of Q f il~-\
a.m./p..m. in Courtroom No. ~o~ the Cumberland County
2000 at 'l:'lS
Courthouse, Carlisle, Pennsylvania.
A supersedeas is granted pursuant to Vehicle Code Section
l550(b)(1) until such time that this honorable court resolves this
appeal.
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BY THE
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Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Room 103,
Transportation & Safety Building, Harrisburg, PA 17120
-Patriok P. Lauer, Jr.. Esq.. 2108 Market Z;::;P ;:;;IJ1701l
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DERK EDWARD ROBERTS, .
.
Appellant :
:
.
.
.
.
v. .
.
.
.
:
COMMONWEALTH OF PENNSYLVANIA, .
.
DEPARTMENT OF TRANSPORTATION, .
.
BUREAU OF DRIVER LICENSING, .
.
Appellee :
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO . (}-O - 30 / tJ Cu;.;..e -u....-
Appeal of Operators License
Suspension - Chemical Test
Refusal
APPEAL OF LICENSE SUSPENSION
AND NOW comes the Appellant, Derk Edward Roberts, by and
through his attorney, Patrick F. Lauer, Jr., Esquire, and
respectfully avers the following:
1. Appellant resides at 13 West pine Street, Carlisle, Cumberland
County, Pennsylvania 17065.
2. The Appellant received a notice dated April 21, 2000 that, as
a result of his alleged violation of Pennsylvania Vehicle
Code Section 1547, Chemical Test Refusal, his driving privilege was
being suspended for a period of one year, effective suspension date
May 26, 2000, at 12:01 a.m. A true and correct copy of the Notice
is attached as Exhibit "A".
3. The Appellant submits that the police officer lacked a
reasonable basis to request Appellant to submit to a chemical test.
4. The Appellant submits that he did not intelligently and
voluntarily refuse to submit to a chemical test.
5. The Appellant submits his actions did not constitute a
refusal.
I
WHEREFORE, your Appellant respectfully requests your
Honorable Court to schedule an evidentiary hearing on the matter.
Respectfully submitted,
Date: ~l(-<k:>
~~, Jr;,JEsquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
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DERK EDWARD ROBERTS, .
.
Appellant .
.
.
.
.
.
:
v. .
.
.
.
.
.
COMMONWEALTH OF PENNSYLVANIA, .
.
DEPARTMENT OF TRANSPORTATION, .
.
BUREAU OF DRIVER LICENSING, .
.
Appellee .
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
Appeal of Operators License
Suspension - Chemical Test
Refusal
ATTORNEY VERIFICATION
I, Patrick F. Lauer, Jr., Esquire, undersigned counsel for
Appellant, Derk Edward Roberts, hereby verifies and states that:
1. I am the attorney for Appellant, Derk Edward Roberts;
2. I am authorized to make this verification on my client' s
behalf;
3. The facts set forth in the foregoing Appeal are known to me
and not necessarily to my client;
4 . The facts set forth in the foregoing Appeal are true and
correct to the best of my knowledge, information and belief;
and
5. I am aware that false statements herein are made subject to
the penalties of 18 Pa. C.S. 4904, relating to unsworn
falsification to authorities.
Date:
--- '
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at rick F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
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DERK EDWARD ROBERTS, IN THE COURT OF COMMON PLEAS OF
Appellant . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
.
: NO.
v. :
.
.
.
.
COMMONWEALTH OF PENNSYLVANIA, . Appeal of Operators License
.
DEPARTMENT OF TRANSPORTATION, : Suspension - Chemical Test
BUREAU OF DRIVER LICENSING, . Refusal
.
Appellee .
.
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the
foregoing Appeal upon opposing counsel by depositing a copy of the
same in the United States Mail, Camp Hill, Pennsylvania, through
first class mail, certified, return receipt requested, postage paid
and addressed as follows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104
Respectfully submitted,
Date:
5~f!~
atrick . Lauer, Jr., squire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
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CCMHONWEALTH OF PENNSVLVANJA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
~arrisburg, PA 17123
APRIL 21, lOOO
-......-
DERK tDWARD ROBERTS
13 III PINE: ST
001056112327L80 001
04/14/iWOO
60041'124
02/27/191.4
I1T HOlLV SPGS PA 17065
D,eal" MO,toriS,t,;
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As a result of your violation of Section 1547 of the
Vehicle Code, CHEMICAL TEST REFUSAL on 02/05/2000, Your
dl"iving privilege is being SUSPENDED for a periOd of 1
VEAR(Sl.
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 license (camera card) in YOUI' possession
no later than the effe<:.tlve dOlt.. listed. If you cannot
,comply with the reauil"ements stated above, YOU are re~uir"d
to SUbmit .. DL16Lc Form Dr a sworn affidavit stating that
you are '",ware of the .senction against your dr'i ving
privilege. Failure to comply with this notice .shell result
in this Bur..au referring this matter to the Pennslllvania
State Police '01" prosecution under SECTION 15711aJ14) of the
Vehiele Code.
Although. the law mandates' thet YOUr driving priVilege 1$
under susoension even if yoU do not surrender yout license,
C.-edit will not' begin until all current driver's license
'lit'oduct (:ill, the 'DL16i:;C"Form,' o'y.-"a-:tei:t'er-ackn'ow.Led'lii'ni;l' your
sanetion is, received In this Bur....u. '
WHEN THE DEPARTMENT RECEIVES YOUR lICENSE OR
ACKNOWLEDGEMENT, WE WILL SEND YOU ~ RECEIPT. IF VOU DO NOT
RECEIVE THIS RECEIPT WIT~IN 15 DAYS CONTACT THE DEPARTMENT
IMMEDIATELY. OTHERWISE, ,YOU WILL NOT BE GIVEN CREDIT TOWARD
SERVING THIS SANCTION.
The e~fective d~te Of $uspen$~on ~s OS/26/2000, 12:01 a.m.
._******************************.************4*********************_
IWARNING: If yoU are convicted 'for driving while YaYI' license is I
isuspended. the penalties will bel not less than 90 d..ys Imprison-I
Iment and a 1,000 fine and an additional 1 year suspension. I
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001056112327180
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Please see the enclosed aoplication for restoration fee
information. '
APPEAL
Yo" have the right to appeal th:is action t~ the 'Court of
COlllmon PlellS (Civil Division) within 30 days of the mail
date of this letter, APRIL 21. 2000. ~f YOu file an appeal
in the County Court. the court will give yOU a time-stamped
certified eopy of the appeal. Send this time-stamped
certifiod cOpy of the appeal b~'certified mail to.
PENNSY~VAN~A DEPARTMENT OF TRANSPORTATXON
OFFXCE OF CHXEF COUNSEL
THXRD FLOOk, RIVERFRONT OFFXCE CENTER
HARRISBURG, PA. 17104-2516
Sincerely,
~~,W%
Rebeoca L. Bickley, Director
Bureau of DriVer Licensing
SEND FEErLICENSE/DL-16LC/TO.
Department o~ Transportation
BureaU of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8693
INFORMATION (7,00
IN STATE
OUT-OF-STATE
TOD IN STATE
TOO OUT-OF-STATE
AM TO 9.00 PM)
1-800-932-<;600
717-391-6190
1-800-228-0676
717-391-&191
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DERK EDWARDS ROBERTS,
APPELLANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
APPELLEE
: 00-3010 CIVIL TERM
IN RIE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
ORDER OF COURT
AND NOW, this ""1.-\, day of October, 2000, the within appeal from the
suspension of driving privileges, IS DENIED.
By the.-G'tfLlrt,-
I'?
Edgar B. Bayley, J.
Patrick F. Lauer, Jr., Esquire
For Appellant
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10 - J..7-00
RKS
George Kabusk, Esquire
For the Department of Transportation
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OF "t{')THONDTARY
OODCT 26 PM I: 34
CU\18ERLAND COUNTY
. PENNSYLVANIA
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DERK EDWARDS ROBERTS,
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
APPELLEE
00-3010 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
OPINION AND ORDER OF COURT
Bayley, J., October 26, 2000:--
Derk Edward Roberts filed this appeal from an order of the Pennsylvania
Department of Transportation suspending his driving privilege for one year for refusal to
take a chemical test. Hearings were conducted on October 5 and October 16, 2000.
We find the following facts.
On February 4, 2000, at approximately 11 :55 p.m., Chief Duane Lebo of the
Borough of Mt. Holly responded to a dispatch of a vehicle stuck in snow in the area of
13 West Pine Street in the Borough of Mt. Holly. A complainant, who called in the
dispatch, reported that someone was going to get hurt. Upon arriving at the scene, the
Chief saw a black Blazer on a sidewalk at approximately a 45-degree angle to the
street. The engine of the Blazer was running. A female was trying to push the vehicle.
Derk Edward Roberts, who the Chief knew, was operating the Blazer. Roberts got out
of the Blazer and walked to the rear of the vehicle. Chief Lebo told him to stop.
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00-3010 CIVIL TERM
Roberts told the Chief that he was not driving. The Chief responded that he had just
seen him drive the vehicle. Roberts then said that he was just parking the vehicle. He
started to walk away and was wobbling. The Chief went up to him and smelled an odor
of alcoholic beverage on his breath. His eyes were bloodshot. His speech was slurred.
The Chief placed him under arrest for driving under the influence. Roberts resisted
arrest. During a scuffle, both the Chief and Roberts received some minor injuries. The
Chief was finally able to get Roberts under control and handcuffed.
Officer Jeffrey Kurtz of the Carlisle police was dispatched on a report that there
was an active fight involving Chief Lebo. When he arrived at the scene, Roberts was
already handcuffed. At the request of Chief Lebo, Officer Kurtz drove Roberts to the
Mt. Holly police station. During the trip, Roberts was agitated and he complained about
his treatment by the Chief. At the police station, Roberts was screaming and yelling,
Officer Kurtz could not calm him down. Chief Lebo asked Roberts to take a blood test.
In the presence of Officer Kurtz, Chief Lebo read Roberts the Implied Consent warnings
from a Department of Transportation form DL-26.' Roberts screamed and yelled
profanities and told Chief Lebo he would not take a test without talking to his attorney.
Officer Kurtz reminded Roberts that he would lose his license for one year if he refused
to take a test. Roberts continued to refuse to take a test and Chief Lebo deemed it a
1 Commonwealth's Exhibit Number 1.
-2-
00-3010 CIVIL TERM
refusal. 2
The Vehicle Code at 75 Pa.C.S. Section 1547 provides:
(a) General Rule.-Any person who drives, operated or is in actual
physical control of the movement of a motor vehicle in this
Commonwealth shall be deemed to have given consent to one or more.
chemical tests of breath, blood or urine for the purpose of determining the
alcoholic content of blood or the presence of a controlled substance if a
police officer has reasonable grounds to believe the person to have
been driving, operating or in actual physical control of the movement
of a motor vehicle:
(1) while under the influence of alcohol or a controlled
substance or both; or
(2) which was involved in an accident in which the operator or
passenger of any vehicle involved or a pedestrian required
treatment at a medical facility or was killed.
(b) Suspension for refusal.-
(1) 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,
(2) It 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. (Emphasis added.)
In Banner v. Commonwealth, Department of Transportation, 737 A.2d 1203
(Pa. 1999), the Supreme Court of Pennsylvania stated that "[b]ecause the suspension
2 Appellant testified that he had an acrimonious relationship with Chief Lebo even
before this incident. He testified that Chief Lebo attacked him at the scene, and
attacked him again at the police station. He testified that the Chief had a form and told
him that he was going to get his blood or that he would lose his license for one year.
Appellant testified that he told the Chief that he wanted to call his attorney, he wanted
the "state cops" brought in, and that he refused to take a test. The female, who was
with appellant, testified that Chief Lebo attacked him.
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00-3010 CIVIL TERM
proceeding focuses solely on the refusal to submit to chemical testing after being taken
into custody, the legality of the arrest for the underlying criminal offense is irrelevant."
The Court stated "[t]hat the plain language of the statute [Section 1547(a)] require[s]
that the request for chemical testing be supported by reasonable grounds for the officer
to have believed that licensee was operating the vehicle under the influence of alcohoL"
The Court further stated:
The standard of reasonable grounds to support a license suspension
does not rise to the level of probable cause required for a criminal
prosecution. Vinansky v. Department of Transportation, Bureau of Driver
Licensing, 665 A.2d 860 (Pa.Cmwlth.1995). Reasonable grounds exist
wilen a person in the position of the police officer, viewing the facts
and circumstances as they appeared at the time, could have
concluded that the motorist was operating the vehicle while under
the influence of intoxicating liquor. DiPaolo v. Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing, '.
700 A.2d 569 (Pa.Cmwlth.1997). In determining whether an officer had
reasonable grounds to believe that a motorist was in "actual physical
control" of a vehicle, the court must consider the totality of the
circumstances, including the location of the vehicle, whether the engine
was running and whether there was other evidence indicating that the
motorist had driven the vehicle at some point prior to the arrival of the
police. Commonwealth v. Wolen, 546 Pa. 448, 450, 685 A.2d 1384, 1385
(1996). Whether reasonable grounds exist is a question of law reviewable
by the court on a case by case basis. Commonwealth of Pennsylvania,
Department of Transportation, Bureau of Driver Licensing v. Malizio, 152
Pa.Cmwlth. 57, 618 A.2d 1091 (1992). (Footnote omitted.) (Emphasis
added.)
We find that (1) Chief Lebo arrested appellant for driving under the influence, (2)
he had reasonable grounds to conclude that appellant was in actual physical control of
the Blazer while under the influence of alcohol, (3) he asked appellant, at the Mt. Holly
police station, to take a test for the purpose of determining his blood alcohol content, (4)
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00-3010 CIVIL TERM
he advised appellant of his rights under the Implied Consent law, and (5) appellant
refused to take a test. Accordingly, the Department of Transportation properly
suspended appellant's driving privilege for one year.
ORDER OF COURT
AND NOW, this
-z..\.:.
day of October, 2000, the within appeal from the
suspension of driving privileges, IS DENIED.
Patrick F. Lauer, Jr., Esquire
For Appellant
George Kabusk, Esquire
For the Department of Transportation
:saa
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