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CHEMICAL TESTING WARNINGS AND REPORT OF
REFUSAL TO 6UBMIT TO CHEMICAL TESTING AS
AUTHORIZED BY OF THE VEHICLE CODE
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DRIV." NUMBIA
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CHI" TlST REQUEST 0.1111
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SOCIAL 8!CUAITV NUIIIl!A
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1. PttUB ... &dvlNd ,11I1 you '" now under ."'.110' d,lvlng under Ih. Inlluono. ol"oOhol 01 . eonlrolltd .ubll~ P\ll8lienl1cl'~
"" 'iehlol. Oode.
a,l,m ,.qu'"Ung thel YOII.ubmlllo, ch.mlclll..1 01 ._..._~.,__..___.,.__. (b/"lh, blood 0' u~n., Olllcerchool.' the ch.mlcalle.1.)
3, 1111 my duly. .. . pollc. ollie.., 10 Inlu,m you "'"111 you r.lu.. 10 .ubmlllu Ihl oh.m,call..1 Y"" operlllng p/tvll.g. will tMl'Ulpelndtd 10, a
p.~od 01 ono Y..'.
... II) The QQn,UIUllonal rlgh!.s you hive Oil criminal delendanl. commonly known IIlho Miranda A~hl'.lncludlng Ihl righllo .p.ak wllh alawy., and
thl rlghl 10 'emaln 'lI'nt. apply only to crlmlnll plOllocultona and do "01 apply 10 lhe chemical ,..ling procedure under PennIVI"lnI.'. Implied
Con.."1 Law, WhIch I. . CIvil, nol B orlmlnal proceeding.
b) 'Iou h.v. no "ghllo Ip."" 10 all..Y.', 0' onyono 01... bolorol.klng Ih. ch.mlcal i,"1 '.qu..,.d by Ih. pollOI olllce' nor do ~ou have a ~ghllo
..main IlIanl when ..k.d by the pollc. ollie.. 10 lubmlllo 'ho eh.mloal'..1. Unl... YOU 1lII,,'10 .ubmlllo the "" requ.".d b~ Ih. pollo. 01ll0lr
you, conduc,..1I1 be o..mod 10 be ,.'uIII.no you, op".Ung p~vlllg...1II b. IUlponded 10' on. y.a"
c) 'leu, "lulal to IUbmlllo Ch.mIc.,I.lllng und..'h. Impll.d Con..nl Law mlY tMllnlroductd Into ovld.nol In I c~mlnal PlOMou\lon lor 41rlvtng
whll. und..lIJalnllutnc. 01 'lcohol 0' a conl/oll.o Iubllanc.,
Lbo.- , .",...~ I""'~
I OIf11ty Ihll I hi.' nlad \h. lbov. w.rnlng '0 Ih. molO~11 'og..~ l~pen'lon of thll, ope"Ung prlvUIQl and lItvB Ib, mown"'.n ~., t,
nIIy 10 0Ubm1l10 cl1lmlOlll...llng, ~~ V 0~
6Ign~IU"0'01lIC.r:+.-=9- . 0...: .I"/A~
I h,vI bHn aUVlIad 01 th. 'bo,.,
Slgnalure 01 MOlorl.l: '--'_____,_,__ _._______,_____ Oil.: ____
MOlOrl....,u... In Ilg"sI~'~:;~'~~Y ~I!~~~d:,,_~, ,~""",,.9..5~)~_
A"IDA YI!
" m. above mOlo,'.t .... pl'C.d und.. .""110' on"ng und..lh. Inllu.nc. 0' alcohol 0' . conlroll.d IubllaM.ln vlolaUon 01 Seollon 3731 ollhe
Vthlo', Codt, .nd ihlr. wer' ,...onlbll groundl to bllllVI that the above malo"" had bien driving. oporallng or In aclul' phYIloaJ oontrol of
thl movlmenl of II motor v6hlell while under 'hi Influ.n08 or ,'cohol or . conlrolled lubllDNle or both,
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That the aboYI n"mld motorl" wa, Involved In an scoldsnl tn which (he oper.tor or P....ng.r 01 anV vflhlclo Invofvod or a pede.lrlan required
1'''lmanl al a m.dlo.' I..lll1y 0' WII klllld.
2. Th. above mOlorll. wu rnquIII.d fo ,ubmlllo ch.mlt:II'tjllng II .UlhOJl~ld bv Silmon '5470' lhe V'hle'e Code.
3. The abOvo molo""t w.. Inlollnod by . pollc. 011I0.' .'Ihl ohlmIC8l1l.. warning. oonlllnld In p.rag'oph 3 end 4 'bov.,
<t. The above n.mtd Motorl.1 r,'ultd to .ubmlllo ohlmICIII..lh'Q.
DPPKlIA NIUIl The mUlallo "In Ihl. 'O'MI, nol' ,,'ula' to Iubmlllo Ihl .hemlell_. You llIu" 111I1 OIYBlho 1l\OI~.18lI 0IIJl0ftv.
""'IO.....llla .ham,..,.... IllIr ravll.lng Ihla lor.... " IhI Indlvlduo' w.. oPI..llnl a _ft."ol., molor _Ie" WhU"".II1fI.ny
'10011oI or , aonl'oUad .ub..._ln Ih.lr 1~'I.m, ~ou mU'1 "'0 aomp"" th. "VIr.. lids of Ihl, lorm.
Ollie., Signa'",,: 1- ~"'" (;) "0 ~ I ~
Ollleol Nam. -~,--~~_,.f>-:__Pl!!!:!N___.___
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Olpal1mlnl 0' TranSpol18UOn
Bu..au 0' D,lver L1cSlI8lng
1',0. 90. 80037
Hdlllsbu'g, PA 17106,0037
THIS FORM MAY BE DUPLICATED
eldg. N".,olI ,___1..1..<(z..__. Ju,I'dlo1lon; _~
Phon" I.7H.I.$la.!.lIlJ:J.___ _'.. __
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COMMONWEAL TIt.S
EXII/D1T
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NOI.' Any pe"lnenl taCit no' coverl'd by Ihe Iffidavlt Ihould b4 ItJblY1llled on .
iSflp,8,nltt ,hi.' .nd attactHtd h".lo, Thai .".., .hould If\Clh.td. the "1m.. of
eddlllonlfll wllne8~" n.<<nary \0 provo Ihe eleRlent. 10 which 'IOu hall. tU..lf.lelJ.
AOOl1l0NAl SUPPLI8S OP nus FORM MAY DE SECUReD IV ClOMPllTfNQ I'tlRU OS.lt..\
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MANCKE, WAG~;f~;~~SHEY &1'U\.L Y .: ,~~~
DEe I Ii 1997(r\ ,""-
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, C(7-!e,9/ f
JOHN D. STONE
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPEAL
LICENSE SUSPENSION APPBAL
AND NOW, comes Petitioner, John D. Stone, by and through hie
" attorneys, Mancke, Wagner, Hershey & Tully, and makes the following
averments in support of this License Suspension Appeal:
1. Petitioner, John D. Stone, is a pennsylvania licensed
driver with a residence address of 272 S. West Street, Carlisle,
Cumberland County, Pennsylvania 17013,
2. Respondent, pennsylvania Department of Transportation,
Bureau of Driver Licensing, has a mailing address at Riverfront
Office Center, Third Floor, 1101 South Front Street, Harrisburg,
Dauphin County, Pennsylvania 17104-2516,
3, Petitioner received a notice of license suspension by way
of letter dated November 17, 1997 from the Department of
Transportation indicating that his pennsylvania driving privileges
are to be suspended on December 22, 1997, at 12:01 a,m, for a
period of one (1) year for a violation of Section 1547 of the
Vehicle Code.
See Exhibit "A" attached hereto and incorporated
herein by refer.ence.
4, The action proposed by the Department in its Notice
outlined in Exhibit "A" is illegal, invalid, and improper for some
or all of the following reasons:
a. State Police did not have reasonable grounds to
bel:\.eve that petitioner was operating a vehicle
while under the influence of alcohol;
b. petitioner waa placed under arrest and requested to
submit to a blood test at Lewiatown Hospital
without the benefit of O'Con~~ warnings;
c, Any alleged refusal to take a breath test at the
Newport State Police Barracks which is specifically
denied was waived by the police when they offered
petitioner an alternative test at the Lewistown
Hospital;
d.
petitioner was
voluntary, or.
testing; and
incapable of making a
intelligent refusal of
knowing,
chemical
e. Said suspension is otherwise illegal, invalid, and
improper pursuant to statutory and case law.
WHEREFORE, Petitioner respectfully requests that this Court
schedule a hearing to determine the validity of the suspension
proposed by the Department in Exhibit "A".
Respectfully submitted,
Date: rzllLr rr }
MANCKE WAGNER;!!ER / EY & TULLY
/ --
B / V
Yoavld E, Hershey, Esquire
1.0, #43092
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
.,. J.~ .
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
S. S.
VRRIPrCA'1'IO~
I hereby verify that ,the statements made in this document are
true and correct, I understand that false statements herein are
made Subject to the penalties of 18 Pa,c.s. Section 4904, relating
to unsworn falsification to authorities,
Date: /2.;1 J/; 7
4~ .:P:/~~
/John D.-Stone
"
outlined in block 16 at 2255 hours while still at Newport Barracks,
At Lewistown Hospital, no blood was drawn and, according to Trooper
Devlin, petitioner had refused chemical testing,
Petitioner was then transported back to the Newport State
Police Barracks where, for the first time, Trooper Devlin retrieved
PennDOT form DL-26 and the O'Connell warnings contained therein
were read to peti.tioner, The DL-26 form specifically indicated
that Trooper Devlin was requesting a chemical test of blood, No
blood testing capability was available at Newport State Police
Barracks.
NO additional test was offered at the Newport State
Police Barracks,
II . ISBUK
Can petitioner have made a knowing, voluntary, and intelligent
refusal pursuant to 11547 when PennDOT f.orm DL-26 which
encompasses the Q'Connel1 warnings was not read to Petitioner
until after he was transported away from Lewistown Hospital
where the alleged refusal took place?
Answe~ed in the negative below.
III. ~
A. Whenever an individual is placed under arrest for DUX and
prior to a request for submioMion to a chemical testing,
Q'Connell warnings must be given regardless of whether
miranda is given or motorist exhibits confusion. ~
COl1II1Ion!!!nith. DeDartment of TranSDortation. Bureau of
Driver Licensina v. Bc~, ___ Pa. Cmwlth. ___, 684 A.2d
539 (1997).
B. Untimely, and thus defective, warnings can be cured by .
post-warning opportunity to assent to chemioal testing.
.&n Commonwealth. DeDal:tm.nt of ~ransDortation. Bur.au of
Dri'lfel: LiceJ.lsina v. Zeltins, Pa.Cmwlth. , 614 A.2d
349 (1992)1 see a180, Henderson v. Cnmmnuw..lth.
peDartment of TransDortation. Bureau of Driver Liconsina,
Pa.Cmwlth. , 553 A.2d 105 (1989) I lee a18o,
Jackson v. Commonwealth, Pa.Cmwlth. , 510 A.2d 396
(1986) .
IV. ARGUHBNT
Pertinent. parts of Trooper Devlin's testimony have been
reproduced in support of the factual allegations herein,
Q: Did the tech that you have described witness your
conversations with Mr, Stone in the lab services area?
A: I didn't have any conversations with Mr. Stone other than
this is the nurse that's going to be drawing the blood.
Q: I'm referring to the use of the DL-26 form,
A: No. This is all done at the Newport Barracks, the DL-26.
Q: Yet the DL-26 form you're showing me was not filled out
until you were back at the barracks?
A: Correct.
Q: After you were at the hospital?
A: Corr.ect.
Q: So when was the form read to Mr. Stone?
A: This form?
Q: Yes.
A: This one wouldn't have been read until afterwards but the
implied consent, which is the same as on here is read to
him pdor,
Q: For the record, you're pointing to the penn~ylvania State
Police intoxication report?
3
the two test samples being greater than an ,020 variance which is
specifically denied, there is precedent that indicates that the
Department waives any refusal where police gratuitously offer the
motorist a subsequent opportunity to take a chemical test. See,
~nnDOT v. Bover, 18 D&C 4th 562 (1992).
The central issue in this case is the timing of the DL-26
warning and the circumstances surrounding the situs of the warning
and the action by the state police.
It is believed the Department will argue the line of cases
which indicate that the request to take a chemical test does not
have to be made at the situs of the test equipment, ~ee qenerallv,
Commonwealth. Departmenl; of Transportation v, Cou:u!Qll, 584 A.2d 386
(1990); Commonwealth. Department of TranSQQf.tation. Bureau of
Driver Ligensinq v, Stav, Pa,cmwlth. ,539 A.2d 57 (1988);
Commonwealth. Deoartm~nt of Tran~rtation. Bureau of Driver
Licensinq v. Zeltins, Pa.cmwlth. , 614 A.2d 349 (1992).
petitioner is focusing the court's attention on the line of
cases which pertains specifically to whether the Department has
cured an untimely, and therefore defective warning, through a pODt-
waI'ning opportunity to assent to chemi,cal testing. ~,
~ommonweal tho Deoartment---2f... Transportation v, zelcins, supra;
llenderson v, Department of TranID2Q..rtat ion, supra; and IUlS:kaon v,
Commonwealth, supra,
6
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It is significant that in the case ~t bar the DL-26 form which
was filled out by the state police specifically indicated that they
were requesting that Petitioner consent to a test of his blood,
Further, it is significant that this warning took place at the
Newport State Police Barracks after petitioner and the state police
had already been to and left the Lewistown Hospital. Finally, it
is significant that on the Department / s exhibit introduced into
evidence in this case that the exhibit itself indicates "Officer
note: the refusal to sign this form is not a refusal to submit to
the chemical test, You must still give the motorist an opportunity
to take the chemical test after reviewing this form." ~ PennDO'l'
form DL-26 marked as the Department's exhibit in this case.
Through the peculiar series of events in this case, including
but not limited to the malfunctioning of the breathalyzer device,
the timing of the reading of, the DL-26 form requesting a chemical
test of blood and no meaningful opportunity for petitioner to
assent to a chemical test of blood at the Newport Barracks, there
was no knowing, voluntary/or conscious refusal of chemical
testing.
"/
\
JOHN D. STONE
IN THE COURT OV COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
NO. 97~691B CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
ORDER 9F C~
AND NOW, this 9th day of February, 1998, after
hearing, the Court makes the following findings of fact:
1. The Miranda warnings were given to the Defendant
at approximately ~2!'1 hours at the Newport Barracks.
2. The implied consent warnings were given to the
Defendant at approximately 2255 hours.
3. The DL-26 form was read to the Defendant by
Trooper Devlin at 2256 hours, although that form was completed
for the intoxilyzer (breath].
4. The intoxilyzer test was deficient because of a
variance of greater than .20 percent.
5. The Defendant unequivocally refused to submit to a
blood test at approximately 12:15 a.m. at the Lewistown
Hospital.
6. Commonwealth's Exhibit No. 1 was read to the
Defendant at 1:00 a.m. at the State Police Barracks at Newport.
7, The Defendant was not given another opportunity
after the .econd reading of the DL-26 form at 1:00 a.m. to
8ubmit to ohemical testing.
Based upon the above findings of fact and review of
the CAse law, Petitioner's appeal of license suspension is
denied and the aotion of the Department suspending Petitioner's
operating license is affirmed.
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