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HomeMy WebLinkAbout03-0214SAFET KLOVO Appellant V. : COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA - LICENSE SUSPENSION APPEAL Date: 2108 1Vfarket Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 evidentiary heating on the matter. APPEAl, FROM ~I/,~PEN~qlON OF OPERATOR~q PRIVII,EGE AND NOW, comes the Appellant, Safet Klovo, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., Esquire, respectfully avers the following: 1. Appellant resides at 149 Faith Circle, Carlisle, Cumberland County, Pennsylvania 17013. 2. The Appellant received a Notice dated December 23, 2002, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privilege were being suspended for a period of one year, effective suspension date January 27, 2003, at 12:01 a.m. A tree 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. Wherefore, your Appellant respectfully requests your Honorable Court to schedule an SAFET KLOVO Appellant Vo COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LICENSE SUSPENSION APPEAL 2. 3. client; 4. ATTORNEY VF, RIi~IC. A TION The undersigned, Marlin L. Markley, Esquire, hereby verifies and states that: He is the attorney for the Appellant, Safer Klovo; He is authorized to make this verification on his behalf; The facts set forth in the foregoing Appeal are known to him and not necessarily to his The facts set forth in the foregoing Appeal are true and correct to the best of his knowledge, information and belief; 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Date:. Respectfully submitted, ~i'ar 1 in ."L ./!~ark I~ y, Esquire 2108 ~rket Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 SAFET KLOVO Appellant COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, : LICENSE SUSPENSION BUREAU OF DRIVER LICENSING, : APPEAL Appellee : : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No.: Oa -o lC( C,i~,RTII~ICATE Ol~ SERVICE I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Camp Hill, Pennsylvania, through first class certified mail, prepaid and addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Date:. J~ 13-2aoJ Respectfully submitted, 2108 M~t4cet Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing MaiI Date: DECEMBER 25, 2002 SAFET KLOVO WID ~ 023506112407276 001 149 FAITH CIRCLE PROCESSING DATE 12/16/2002 DRIVER LICENSE # 26256295 CARLISLE PA 17013 DATE OF BIRTH 12/05/1957 Dear MR. KLOVO: This is an Official Notlce of the Suspension of your Driving Privilege as authorized by Section 1547 of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 11/25/2002: Your driving privilege is SUSPENDED fop a period of 1 YEAR(S) effective 01/27/2003 at 12:01 a.m. WARNING: If you are convicted of driving while your license is suspended/revoked the penalties will be a MINIMUM of gO days imprisonment AND a 91,000 fine AND your driving privilege will be suspended/revoked for a MINIMUM 1 year period COMPLYING WITH THIS SUSPENSION You must return ail current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 01/27/2005. You may surrender these items before, 01/27/200~, for earlier credit; however, you may not drive after these items are surrendered, YOU MAY NOT RETAZN YOUR DRZVER'S LZCENSE FOR ZDENTZFZCATZON PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of 910.00. You must present two (2) forms of proper iden- tification (e.g., birth certificate, vaiid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. You will not Peceive cPedit towaPd serving any suspension until we pecelve youP license(s). Complete the following steps to acknowledge this suspension. 02550611240727& 1. Return ail current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn nota- rized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unabIe to return your driver's license. Remember: You may not retain your driver's Iicense for identification purposes. Please send these items to: Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA i7106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(q) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored To from a suspension/revocation of Your driving privilege. pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application, 023506112407276 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 50 days of the mail date, DECEMBER 23, 2002, of this letter. If you file an appeal in the county court, the Court w111 glve you a t/me- stamped cert/fied copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied COpy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZON. You must return all current Pennsylvania driver license products to PennDOT by 01/27/2005. Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing INFORMATION 7:00 a.m. to 9:00 p.m. IN STATE 1-800-932-4600 TDD IN STATE OUT-OF-STATE 717-591-6190 TDD OUT-OF-STATE WEB SITE ADDRESS www.dot.state.pa.us 1-800-228-0676 717-391-6191 J`-~ ~~ V_ °Cti ",~ "~. ~( t lw /A. _ ^~~ ~. - Q { C ~ - --~ ~}~}, w~ ~ ~~ m .r- G - ~,~ ~~--~~^^ r;^f '~'~ t~ T~ ~ ~' ~ G .. ~ -v -~ :~ ' 0 SAFET KLOVO, Appellant Vo COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, : LICENSE SUSPENSION BUREAU OF DRIVER LICENSING, : APPEAL Appellee : : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 03- o lq ORDER C}I* COURT AND NOW, this c~'~C~ ~ ~G - ~;~ 2003, upon consideration of this APPEAL FROM SUSPENSION OF T E, it is hereby Ordered that a Heating on the matter shall be held on C~t ~ day of '%~) 2003, ~ I'. 3 ~) a~ o'clock Q- m. in Courtroom No. c:~ of the Cumberland County Courthouse. A supersedeas is granted pursuant to Vehicle Code Section 1550(b)(1) until such time that this honorable court resolves this appeal. Distribution: -PA Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104 -Marlin L. Markley, Esq., 2108 Market St., Camp Hill, Pa 17011 ~ ~ sOFET KLOVO, pETiTIONER IN THE cOURT OF COMMON pLEAS OF CUMBERLAND couNTY, pENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION' BUREAU OF DRIVER LICENSING, George H. Kabusk, Esquire For the Department of Transportation Marlin L. Markley, Jr., Esquire For Petitioner 03-0214 CIVIL TERM RESPONDENT ON OF DRIVING pRIVILEGE ORDER OF cOURT AND NOW, this ~ day of April, 2003, the within appeal from an order of suspension of driving privilege, IS DISMISSED- B~lEdgar t~. o~,y,~y,'~' / '.saI SOFET KLOVO, IN THE COURT OF COMMON PLEAS OF PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT 03-0214 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., April 29, 2003:-- Petitioner, Sofet Klovo, filed an appeal from the suspension of his driving privilege for one year by respondent, Department of Transportation, as a result of his refusing a chemical test in violation of the Vehicle Code at 75 Pa.C.S. Section 1547. A hearing was conducted on April 21, .2003. We find the following facts. On November 25, 2002, Officer Andrew Wolfe of the Middlesex Township Police Department was on patrol on Wolfs Bridge Road in Middlesex Township. He clocked petitioner with a VASCAR unit at 53.5 miles per hour in a 35 mile per hour zone. He saw petitioner drive completely into the opposite lane on the two-lane road, and on a second occasion he saw him drive partway into the opposite lane causing a vehicle that was coming in the opposite direction to swerve sharply to avoid a collision. Officer Wolfe stopped petitioner. Petitioner had bloodshot, glassy eyes, and the officer smelled an odor of alcoholic beverages coming from his breath. Officer Wolfe asked petitioner if 03-0214 CIVIL TERM he would perform field sobriety tests and petitioner said that he would. The officer explained the tests to.petitioner. Petitioner said that he understood the instructions and that he had done the tests before. Petitioner then performed but failed the walk-and- turn test and aone-leg stand test. Officer Wolfe, believing that petitioner was under the influence of alcohol to a degree that rendered him incapable of safe driving, arrested him for driving under the influence. Petitioner was placed in a patrol car and Officer Wolfe drove him to a booking center. Petitioner talked virtually nonstop on the way to the booking center. He told the officer that he was from Bosnia and that he needed to work something out, that this was going to ruin his life, and that he had been arrested for driving under the influence about two years ago. He said he was a millionaire and he offered Officer Wolfe thousands of dollars not to arrest him for driving under the influence. The officer told petitioner to "forget it." Up to this point all of petitioner's conversations with Officer Wolfe were in English. After arriving at the booking center, Officer Wolfe read petitioner the following warnings: 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 offcer, 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. 4. a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the right to speak with a lawyer and the right to remain silent, apply only to -2- 03-0214 CIVIL TERM criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied Consent Law, which is a civil, not a criminal proceeding. b) You have no right to speak 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 refusal and your operating privilege will be suspended for one year. c) Your refusal to submit to 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 a controlled substance. Officer Wolfe then asked petitioner to sign the sheet on which the warnings were typed. Petitioner told him that he did not speak any English, and that he could either give him an interpreter or let him go. Officer Wolfe called Cumberland County Control, and through a 24-hour hotline was able to contact an interpreter in California who spoke the language that defendant spoke. Using a speakerphone, Officer Wolfe read the same warnings, word for word, from the same form that he had previously read to petitioner and the interpreter translated. At the end of each of the four sections of the warnings the officer asked if petitioner understood that section. Petitioner, through the interpreter, said he understood each section. Officer Wolfe then reiterated that petitioner would lose his license for one year if he did not take the test. The officer asked if petitioner understood and petitioner, through the interpreter, said that he did and that he would not take the test. The officer then deemed that petitioner had refused to take the test on an Intoxilyzer that was available at the booking center for -3- 03-0214 CIVIL TERM that purpose.' DISCUSSION The warnings provided to petitioner in English by Officer Wolfe and then by Officer Wolfe through the interpreter, were those that are required pursuant to rulings by the Pennsylvania Supreme Court. See Commonwealth, Department of Transportation v. Scott, 546 Pa. 241 (1996). In order to suspend a driving privilege pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547, the Department must establish that the licensee (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or in actual physical control of the movement of a vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal would result in the suspension of driving privilege. Banner v. Commonwealth, Department of Transportation, 737 A.2d 1203 (Pa. 1999). Once the Department has met that burden, it is the driver's responsibility to prove that he or she was not capable of making a knowing and conscious refusal to take the test. Commonwealth v. O'Connell, 521 Pa. 242 (1989). In the case sub judice, Officer Wolfe had reasonable grounds to believe that petitioner was operating his motor vehicle while under the influence of alcohol to a ' The Commonwealth did not call the interpreter to testify. Petitioner did not testify or present any evidence. -4- 03-0214 CIVIL TERM degree that rendered him incapable of safe driving.2 Petitioner, through his counsel, argues that because the Commonwealth did not call the interpreter to testify it has not proven that he was provided adequate warnings in a language he could understand before he refused to take a test. There is no evidence to support that argument. Based on the conversation that petitioner had with the officer after he was stopped, which involved him telling the officer that he understood the instructions he was given to take the field sobriety tests, and that he then took those tests, and the extensive conversation and the statements made by petitioner to the officer while they drove to the booking center, which included petitioner's ability to offer a bribe in English, we find that petitioner understands English sufficiently so that the warnings given to him in English were adequate. Furthermore, when Officer Wolfe obtained an interpreter and the warnings were given to petitioner again, petitioner acknowledged through the interpreter that he understood, and he stated through the interpreter that he would not take a test. There is not a wit of evidence to suggest that petitioner was not properly warned in a language he understood and that he then made a conscious refusal not to take a test. See YI v. Commonwealth of Pennsylvania, Department of Transportation, 166 Pa. Commw. 214 (1994); IM v. Commonwealth of Pennsylvania, Department of Transportation, 108 Pa. Commw. 206 (1987). 2 As set forth in Banner, the legality of the arrest is immaterial for the purposes of a license suspension. -5- .~. 03-0214 CIVIL TERM ORDER OF COURT AND NOW, this ~_ day of April, 2003, the within appeal from an order of suspension of driving privilege, IS DISMISSED. George H. Kabusk, Esquire For the Department of Transportation Marlin L. Markley, Jr., Esquire For Petitioner :sal -6- cagar ts. tsayiey, ~.