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BRENDAN W. CURRY
Petitioner
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
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NO.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Respondent
UCENSE SUSPENSION APPEAL
1, Your Petitioner, Brendan W. Curry, Is an adult Individual residing at 630 Wilson Street,
Apartment 3, Carlisle, Cumberland County, Pennsylvania.
2. Your Petitioner Is a licensed molor vehicle operator In the Commonwealth of
Pennsylvania who received a notice of license suspension, a copy of which Is attached hereto
and made a part hereof as exhibit "A",
3, Said license suspension is Illegal, Improper and unjust under the Pennsylvania and
Federal Statutes and Constitution,
4. Said suspension is unjust, illegal and Improper for, but not limited to, the following
reasons:
(a) there was not a valid refusal,
(b) said refusal was not knowing and/or Intelligent, and
(c) the Information given to the Petitioner by the olllcer was Inconsistent and
confusing,
pRl1!'lC~T10H
1 veri'Y that the ,tateeents eade in the ,ore.oi"
doCWOent are true aod oorrect. 1 understand that ,alse
statenents herein are eade suhject to the penalties 0' ,. pa.C'S.
section 4'04, relating to unsworn 'ai'i'icatioO to
authOrities,
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DATE:
COMMONWEALTH OF PENNSVLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Hilrrisburg, PA 17123
JANUARV 23, 1997
BRENDAN W CURRY
630 WILSON STREf.T
APT . 3
CARLISLE PA 17013
970166101648236 DOL
01/16/1997
22927611
12/08/1972
Dear Motorist:
As a result of your violation of Section 1547 of the Ve-
hicle Code, CHEMICAL TEST REFUSAL on 12/20/1996, your driving
privilege is being SUSPENDED for il period of 1 VEARIS),
In order to comply with this sanction you ilre required to
return any current driver's license, leilrner's permit and/or
temporary driver's license ICilmera card) in your possession
no later than the effective date listed. If you cilnnot com-
ply with the requirements stilted above, you ilre required to
submit a DL16LC Form or a sworn ilffidilvit stilting thilt you
are aware of the silnction against your driving privilege.
Failure to comply with this notice shall result in this Bu-
reau 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 is un-
der suspension even if you do not surrender your license,
r.l'ed~,t: will not begin until all current driver's license
product(s), the DL16LC Form. or a letter ilcknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT,
WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT
WITHIN i5 DAYS CONTACT THE DEP^RTMENT IMMEDIATELY. OTHERWISE,
YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION.
The effective date of suspension is 02/27/1997. 12:01 a.m.
**.....1............................................................
(WARNING: If you are convicted for driving while your license is I
(suspended, 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 "A"
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WI DO HlftllV CIAYI" THAT
1HI WITHIN II " TfWI AHD COfl-
"leT COPY 0' THI OIUOINAL
PUD IN THII ACTION
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MANCKE, WAGNER, HERSHEY & TULLY'
BRENDAN W, CURRY,
Petitioner
:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
,
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v,
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COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
Respondent
NO. 97-0680 CIVIL TERM
,
,
IN RE: APPEAL FROM LICENSE SUSPENSION
AND NOW,
BEFORE OLER. J.
ORDER OF COURT
this lO '\'4day of July, 1997,
upon consideration of
Petitioner's appeal from license suspension, following a hearing
and for the reasons stated in the accompanying opinion, the appeal
is DENIED.
BY THE COURT,
J
John B. Mancke, Esq,
2233 North Front Street
Harrisburg, PA 17110
Attorney for Petitioner
George Kabusk, Esq, -~(f" '
Assistant Counsel
Office of Chief Counsel
Vehicle & Traffic Law Division
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Respondent
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NO, 97-0680 CIVIL TERM
SAC test, Petitioner concedes that there were reasonable grounds
for the trooper's request,'
At 12:45 a.m., they arrived at the Holy Spirit Hospital in
Cumberland County, l
The troopers and Petitioner went into the
hospital, and, while waiting for a medical technician, Trooper
Williams read the implied consent warnings to Petitioner which are
contained on Department of Transportation Form DL 26,' The form
reads as follows:
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, I am
requesting that you submit to the chemical
test of blood. 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 period of
one year. The constitutional rights you have
as a criminal Defendant, Commonly known as the
Miranda rights, including the right to speak
to a lawyer and the right to remain silent,
apply only to criminal prosecutions and do not
apply to the chemical testing procedure under
the Pennsylvania implied consent law, which is
a civil not a criminal proceeding, You have
no right to apeak to a lawyer or anyone else
before taking the chemical test requested by
the police officer, nor do you have a right to
remain silent when asked by the police officer
to submit to the chemical test. Unless you
agree to submit to the test requested by the
police officer, your conduct will be deemed to
be a refusal and your operating privilege will
2
N.T, 3, Hearing, April 24, 1997 (hereinafter N,T, ___),
3
N,T, 5,
.
Commonwealth Exhibit I, Hearing, April 24, 1997,
2
NO, 97-0680 CIVIL TERM
be suspended for one year, Your refusal to
submit to the chemical testing under the
implied consent law may be introduced into
evidence in a criminal prosecution for driving
while under the influence of alcohol or
controlled substance,'
The officer also explained to Petitioner that the officer had
discretion to choose the type of chemical test,'
After reading the form to Petitioner, the trooper asked him if
he understood,' Petitioner asked the trooper to read it again,'
The trooper elaborated upon the implied consent law and the
consequ~nces of a refusal by advising Petitioner as follows:
Any person who drives, operates 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 [their] blood or the presence of a
controlled substance if a police officer has
reasonable grounds to believe a person to have
been driving, operating, or in actual physical
control of the movement of a motor vehicle,
Refusal to submit to the chemical test will
result in the suspension of that person's
operating privileges for a period of 12
months, ·
, Commonwealth Exhibit 1, Hearing, April 24, 1997, See N,T,
6-7.
. N.T. 6,
, N,T. 8,
. Id.
. N,T, 8-9,
3
NO. 97-0680 CIVIL TERM
Petitioner then indicated his understanding by signing the DL
26 form,'. At 1:10 a,m" prior to the medical technician's arrival,
Trooper Williams administered Miranda warnings to Petitioner, with
a view toward questioning him," At that point, Petitioner, a law
student, asked that an attorney be present before any questioning
took place; in accordance with this request, no interview was
conducted, 12 Trooper Williams, according to Petitioner's best
recollection, thereupon clarified the right-to-an-attorney rule in
the instant context,l3
At 1: 17 a.m" the medical technician arrived," Petitioner was
given three cpportunities to consent to the blood test, and each
time he refused to submit to it.1S He expressed fear over the size
of the needle and its cleanliness." His only reason for refusing
was a fear of needles, including the possibility of contamination,"
I. N,T. 9,
" N,T, 7, 9,
12 N,T, 9,
13 N,T. 19.
,. N,T, 10,
IS rd.
" rd,
17 N,T, 13,
4
NO, 97-0680 CIVIL TERM
Trooper Williams recorded the incident as a test refusal, and no
sample was drawn, 10
On January 16, 1997, Respondent informed Petitioner, by
letter, that his driving privileges were suspended as a result of
a test refusal,
DISCUSSION
Grounds for appeal, The Petitioner contends that his license
suspension was improper because (a) "there was not a valid
refusal, ,,19 (b) "said refusal was not knowing and/or intelligent, ,,20
and (c) "the information given to the Petitioner by the officer was
inconsistent and confusing, ,,21
Statement of law, To support a license suspension under
Section 1547 (b) of the Vehicle Code, the Department of
Transportation (DOT) must establish four facts, It must show (1)
that the driver was arrested for driving under the influence of
alcohol and/or a controlled substance; (2) that the driver was
asked to submit to a chemical test; (3) that the driver refused to
10
N.T, 10.
Petitioner's License Suspension Appeal, paragraph 4(a),
Id" paragraph 4(b),
Id., paragraph 4(c),
19
20
21
5
NO, 97-0680 CIVIL TERM
do so; and (4) that the driver was warned that a refusal would
result in the suspension of his/or her license for one year,"
In addition, "[tJo ensure that an arrestee makes a knowing and
conscious decision to submit to chemical testing, [the Pennsylvania
Supreme Court has held in Department of Transportation, Bureau of
Driver Licensing v. O'Connell, 521 Pa. 242, 555 A,2d 873 (1989),J
that when an arrestee requests to speak with an attorney, whether
or not he exhibits confusion '" [andJ whether or not the licensee
has been advised of his rights under Miranda, the police must tell
him that his right to counsel is not applicable to the test."
Department of Transportation, Bureau of Driver Licensing v, Lipko,
-- Pa, Cornrow. ___, ___, 654 A,2d 227, 229 (1995).
Finally, "even if the police provide a sufficient O'Connell
warning, a license sUspension imposed on a licensee for refusing to
submit to chemical testing must be reversed, if the fact finder
determines that the circumstances surrounding the police's request
for chemical testing are confusing and prevent a licensee from
understanding the warning," Id. at _, 654 A,2d at 230, In this
regard, "the question of whether a licensee is confused or not is
" Department of Transportation, Bureau of Driver Licensing
v, Zeltins, 150 Pa. Cornrow, 44, 50-51, 614 A,2d 349, 353 (1992),
"Once DOT has established the requisite elements, the
burden shifts to the driver to prove by competent evidence that he
or she was physically unable to knowingly and consciously refuse
chemical testing," Id, at 52, 614 A.2d at 353, The present case,
however, is not a lack-of-capacity case,
6
NO, 97-0680 CIVIL TERM
a subjective test ",." Id, at _,654 A,2d at 230, citing
Department of Transportation, Bureau of Driver Licensing v, Ingram,
538 Pa, 236, 648 A.2d 285 (1994),
Application of law to facts. In the present case, the
Department of Transportation met its burden of showing that
Petitioner was arrested for driving under the influence, that he
was asked to submit to a chemical test, that he refused to do so,
and that he was warned that a refusal would result in the
suspension of his license for one year. The evidence also showed
that a sufficient O'Connell warning was provided, in terms of the
inapplicability of a right t.o counsel in connection with a BAC
test.
On the issue of whether Petitioner was subjectively confused
as to the right to counsel in connection with the chemical test,
the evidence led the court to conclude that he was not, The
refusal in this case was simply due to Petitioner's aversion to
needles and concern over contamination. For these reasons, the
court is constrained to enter the following order:
ORDER OF COURT
AND NOW, this lOth day of July, 1997, upon consideration of
Petitioner's appeal from license suspension, following a hearing
7