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COMMONWEALTH OF PENNSYL VAN'fA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEJIICLE & TRAFFIC LAW DIVISION
RIVERFRONT OFFICE CENTER-THIRD FLOOR
1I0lS0UTII FRONT STREET
HARRISBURG. PENNSYLVANIA 17104-2516
VOICE: (717) 787-1830
TELEF.\X: (717) 705-1Il2
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April 27. 1998
David E. Hershey, Esquire
Mancke, Wagner, Hershey & Tully
2233 North Front Street
Harrisburg, P A 17110
Re: Megan A. Milford v. Commw. ofPa.. DOT, BDL. Cumberland County. 1998-407,
License Suspension Appeal
'Plf...dSL-'?bcc
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Dear Mr. Hershey:
I am in receipt of your correspondence dated April 20, 1998. regal
mentioned appeal. You enclosed a copy of a transcript prepared by your! \,J . 0 L~z-
videotape maintained by Central Booking Office.
Thank you for your secretaries well done transcriptioa of the videolllpe. I direct your
attention to page 15, line I, where Ms. Milford's utterance was transcribed as "aloud" wherein it
should be "allowed". Other than that one change, I concur with the rranscript as prepared.
If you have any questions, please feel free to contact me.
Sincerely,
~ 14ti C
George H. Kabusk
Assistant Counsel
cc: Francis P. Bach. AssisUlnt Counsel in Charge, Traffic Safety Section
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I am Special Dececcive Haines from che Cumberland Couney Cencral
processing Deparcmenc. Today is Sacurday, November 29. The eime
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is 0211 hours. I'll be offering che video camera ~~incelliqible
4 duri~g che cescing of Megan A. Milford who was arresced by Officer
5 Siekerman of che Mechanicsburg 80ro Police Deparcmenc for
6 operacing a mocor vehicle .....hile under che influence of alcohol.
7
and/or a concrolled subscance.
Special Deeeceive Cook from che
8 Cumberland C=uncy Cencral processing Deparcmenc will be che
9 processing officer in chis case. The breach eese device is che
10 Inco;~ilyzer 5000.
11 Okay Megan yo~ are charged wich driving under che influence. You
12 have ::he righe co remain silene. Anything you say can and wil!. be
13 used againse you in a court of law. You have che righe co calk to
14 an a::::=rney cefore and have an atco~ey present wich yeu du=~~g
15
queseioning if you so desi::-e.
!: you cannot afford co hire an
16 acto=ey one .....ill be appointed co represene you .....ie:rouc charge
17 before quescioning if you so desire. If you do decide co answer
18
any questions, you may stop at any cime you wish_
DO you
19 underseand ehe righes chat I have just read co you?
20 MM: Yes.
21 Okay. I need you co circle yes and co sign righe ehere_
22 MM:! won'e sign ehae -- not now
23 well, you said you understood che righes.
1
1 MM: I understood --
2 That's all this is doing is stating you understand t:he right:s.
3 Not:hing else. It means nothing else.
4 MM: My fiancee should be here. I need t:o talk to him before I __.
5 Well you can't:. I mean you can't t:alk t:o him before you do
6 anything. I mean you don't have a right: to do that_
7 MM: Why don't I have a right to talk to -- my boyfriend __ my
8 fiancee.
9 Because he has not:hing to do with this. This is a legal
10 proceeding.
11 MM: He certainly does he was with me.
12 Well I can't help it. I mean, he can wait: out: i~ the parking lot:
13 for you but:, you know. ! mean if you refuse to sign, =hat's okay_
14 I'll just: put you refused to sign. Is that wrAt you wane me co put:
15 down?
16 MM: What does that mean?
17 That: means you refused t:o sign the paper. It doesn't: mean anyching
18 other than it: shows that: you weren't: cooperat:ing. Thae's all. It:
3.9 doesn't mean anyching. But it:' s up to you if you want co sign t:hat:
20 to say you understood your rights that's fine. If yeu don't: __
23. MM: What: are my rights? Tell me what: my rights are_
22 I just: read them to you.
23 MM: Well then read them
2
19
20
1 You said you understood.
2 MM: No, read them to me.
3
I read them to you and you said you understood them.
MM: Explain to me aga~~.
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I .....ill read them one more time.
You have the right to remain
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silent.
Anything you say can and .....ill be used against you in a
7 court of La...... You have the right to talk to any attorney before
8 and have an atto=ey present .....ith yeu during questioning if you so
9
desire.
If you cannot affor:i to h~re an attorney, one will be
10 appointed to represent you without c=.arge before questioning if you
11 so desire. If you do c.ecide :0 ans.....er any questions you may Stop
12
at any time you .....ish.
13 Do you understand the r~ghts that - have just read to you?
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14 MM: Yes.
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Okay no..... you may sign .- or you may not. It's up to you.
MM: I don't understanc. .....hat you said to me.
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Okay so you're not goi~g to sign it? You refused to sign it?
18
MM:
I need my boyfriend
my fiancee.
Okay you have been charged with driving under the influence_ As
part of your processing a videotape is being prepared_ Camera's
22
21 right over there, one i~ the front's right there_ Your attorney
23
may arrange to review this tape after your preliminary hearing by
contacting the District Atto=ey's Office. And if you sign right
,
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1 there all you're doing is ack.~owledging the fact I told you you're
2 being taped.
3 MM: I need to know where my boyfriend is.
4 Well, I mean I don't know where your boyfriend is. So -- Okay.
5 Now were going to do some field sobriety tests. Do you ',",ear
6 contacts Megan?
7 MM: No.
8 Alright you may step over here with me. You may take your shoes
9 off to do this if that's easier. Okay. What I need you to do is
10 stand right here facing me. Right at that li~e, that's fine_ What
11 we're going to do first is just check your eyes. So what I want
12 you to do is follow the tip of the pointer with yc~ eyes only.
13 Don't move your head back and forth just follow wi=h your eyes.
14 Okay. Do you understand that?
15 MM: Yes
16 Okay.
17 Camera ready.
18 Now keep your head still.
19 MM: I'm sorry -- I'm just
20 Follow with your eyes only.
21 Now, you're still moving your head_
22 MM: I'm sorry.
23 Try and keep your head perfectly straight just move your eyes.
4
1 Okay. Just stand there and relax.
2 Okay Megan you can go to the end of that black line. We're going
3 to do two balance tests.
4 MM: Over here?
5 Yes. Turn around. Yea. Turn around and face me. Okay. Wha~!
6 want you to do in this test is I want you to put your left foo~ on
7 the line and your right foot in front heel to toe fashion and arms
8 down at your side. I want you to remain in that pos~:ion as bese
9 you can until: give you further direceions. What: I want you to do
10 is t:ake nine heel to toe seeps like this one - twe - down the
11 line yea - three - Eour and so on. When you get to your nineh s~eJ;l
12 -- now wa~t -- wait until I cell you to scare.
13 MM: I'm sorry.
14 When yeu get to the nineh seep I wane you co leave your lead feoe
15 on ehe l~ne, make small seeps around like tr.ac and ! '''an~ you to go
16 back nine heel co toe seeps.
17 Now, do you understand what! want you to do?
18 MM: Yes.
19 Okay now what ! '"ant you to remember now is ! wane you :0 keep your
20 arms down ae your side, waech your feee while you're walking, and
21 coune oue loud your steps so we can hear you.
22 MM: One
23 wait, waie uneil I tell you co scare.
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1 MM: Oh, I'm sorry.
2 Thac's alrighc. Okay, you may begin.
3
MM: one-cwo-c~ree-four-Eive-six-seven_eighC_nine_cen.
One-cwa-
4 three-foU=-five-six-seven-eighC_nine_ten.
5 Jusc relax for a second.
6
Okay.
Do you want to step up to this line right here and juSt
8 remain in that pOsition until I tell you -- gi'le you instruc=ions.
7 stand wich your feet togecher, arms down ac you= sides, and juse
10 lef= or right i= makes no difference - six =0 ten inches off the
9 Okay. Whac I want you co do is raise your foot _ eicher foot, _
14 f~rs=. Do you understand what I wanc you to do?
13 Chousand and so on up co 31 thousand or 30 seconds whichever comes
12 cwo one =housand, chree one =housand, four one thousand, five one
11 floor - toe poinced down and ! wanc you to counc one one Chousand,
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MM: 3icher foot?
16
Either foot.
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17 MM: One one chousand, Cwo one chousand, three one thousand?
18 Yes. Do you understand what I want you to do.
19 MM: Yes.
21
20 Okay now ''''hac I Want you to remember when you're doing t:his is I
want you co keep your fooc up, toe poL"1ted down, you may watch your
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22 raised foot, don'c put your foot dawn unless I tell you to, keep
23 your arms down at your side, and I wane you to count aut loud again
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so ! can hear you.
Now wait one second.
Wait until t:he time
2 unineelliaible. Okay you may seart.
3 MM: One one thousand, cwo one ehousand.
4 Your fooe has to be up more --- more.
S MM: Three one thousand
5 Four
7 MM: Four one thousand, five one thousand, six one thousand, __
a
seven one thousand
9 Okay. Unineelliaible. Okay do you ....ant to come oue here and have
:0 a seat please. Okay Megan, do you have any signs or complaines of
. . ill~ess or injury ~ight now?
:2 MM: No.
:3 ! need yeu to speak up so we can hear.
:.; MM: )fa.
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Thar~!c you.
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Do yeu have any physical defeces?
1.7
MM: No.
1.8 Are you ill right now?
1.9 MM: No.
20 Do you unintelliaible?
21. MM: No.
22 Have you been injured lately?
23 MM: No.
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1 Have you seen a doccor or deneise in ehe pase several days?
2
MM: No.
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3 Are you caking eranquilizers, pills, or medicine of any kind?
4 MM: No.
S Do you have epilepsy?
6 MM: No.
7 Diabeees?
8 MM: No.
9 Do you cake insulin?
10 MM: unineellicible.
11 Have you have any injeccions of any ocher drugs recenely?
12 MM: No.
13 When did you lase sleep?
14 Lase nighe?
15
MM: I would say probably unintellicrible. I don'e ~ow.
16 Approximately how many hours of sleep did you gee?
17 MM: 10
18 Are you wearing false teeeh?
19 MM: No.
20 Do you have a glass eye?
2J. MM: No.
22 And you already said you don'e wear coneaces.
23 Okay, were you operaeing a moeor vehicle chis evening?
8
1 MM: No.
2 You weren't d:iving a car this evening?
3 MM: OnintelEaible.
4 Okay, where were you gOing?
5 MM: Home.
6 What street or highway were you on?
7 MM: I don't ~~ow.
8 Do you ~~ow t~e direc:ion of travel t~at you were going, nor:h,
9 east, south, west?
10 MM: Probably souch.
11 South?
12 MM: Yes.
13 Where did you star: :rom?
14 MM: I don't remember.
15 Whac time did you star:?
16 MM: I don't ~~ow.
17 What time is it now without looking at a clo~~ or watch?
18 MM: I don't ~ow. I'm really scared.
19 What city or county are you in right now?
20 MM: In Harrisburg somewhere.
21
What is today's date?
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22 MM: 28th.
23 November?
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1 'lea.
2 MM: No I don'c.
3 Megan, yea you do.
4 MM : No I don't.
5 Megan, the officer broughc you here wich Che incene chal: you're
6 going Co do chis.
7 MM: I wane CO calk Co my boyfriend before I do this.
a No, you don' c have the righc co calk co anyone before you do CllS.
9 MM: I have a righc Co calk to a lawyer.
10
Megan,
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Che subjecc refuses co cake t:he breach cese,
c:he
1.:' processing of::.cer 'lIill advise. You have been arrested for dri.".ing
12 under che inf:uence of alcohol or a concroll.ed subscance. You have
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beer. broughc here by che officer so chac cescs of you= breach may
1~ be adminiscered co you. Onder ?ennsylvania law you have implied
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consenced, you have impliedly consented Co subject, Co cases by
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driving, operating, or being in physical concrol or che
movemene
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of a mocor vehicle.
Thac means when you gee a drivers license
18 you're auComaeically are covered under chis law which means chae if
19 you refuse to submit to che breach Cese your opor.acing- Elrivi.!.eg-es
20 will be suspended auComatically by che Deparcmene of Transportation
21 for a period of one year or more.
22 MM: Well I have co call my boyfriend because r don' e nnderseand
23
chis.
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1 Whac, ic/s real
2 MM: I was wich him.
3 If you don'c cake che cesc, Megan, your license w~ll aucomacically
4 be ::aken away for ac leasc one year. Thac' s exaco:ly whac it: means.
5 IC's plain and simple.
6 MM: Well I don' c underst:and because ocher people get: their
7
license Caken away.
8 Well chac's che way ic is, if you refuse co c~<e che breaCh cest:
9 your license will be caken away.
10 MM: Can I call my boyfriend?
11 No.
12 MM: Why?
13 3ecause you don' c h".ve a righc co call anyot:e or do an~g
14 insofar as che cesc or anything like chaco
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MM: Well see I dcn'c underscand chaco
Why ca~'t: I call -- Why
16
can'c I call my boyfri~~d?
17 3ecause he has not:hing co do wich chis. This is
18 MM: He certainly does.
19 No he does noc.
20 MM: He's been wich me forever
21 Well, chac's fine. But: chis is wich you okay. You were the one
22 'i/ho was arrested for driving under che influence. And if you don't:
23 cake che breach cest:, your license 'i/ill aucomacically be suspended
13
1 for ae lease a year so ehac's __
:2
MM:
r've never been ever ever Scopped before in my whoLe encire
3
life
before conighc.
4 Well chae' s
5 MM: Yea buc for a whole year?
6 MM: Now how come all chess ocher people jusc gee Seopped Eor like
7
8 Megan, I don' c have che cime co debace chis. Are you going' co take
9 the breach ces~?
10 MM: No I'm noe.
11
12 Okay. You do underscand chae your license will be ~aken away for
13 at lease one year.
14 MM: No I don't understand '''hy my license will be talcen away for a
15 year.
16 I juse read co you because when you gee a license, ~hen yeu get a
17 drivers license, chac's all par:: of
18 MM: Nobody else gees their license taken away for a year
19 I can't speak for other people. I'm speaking for ~hac _ whac's
20 going on here right now. That's the law
21 MM: I don't understand '"hy I am somebody chat has been like __ r
22
have been in front of the law for years, and years and. years
and years and and I do the good thing and these people are
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1 aloud ~o do something and you can, you can, you can pull my
2 license for a year but these other people that you don't
3 really care abOUt -- unintelliaible.
4 aut you do understand what I JUSt read to you?
5 MM: No I don't understand. Because r don't understand why, me.
6 Because it's ~he law Megan.
7 MM: No it's not ~he law because it's really funny how the law
8 seems to work in such different ways.
9 Okay, I'll give you one more chance. By refus~ng ~o do this test
10 your license will automatically be taken away from you for one year
11 at least.
12 MM: Because _ made a mistake one night.
13 That's r~ght. Now, are you willing to take the tese?
14 MM: All these
15 Megan, are you willing to take the breath test or noe knowing what
16 I JUSt told you abOUt your license being taken away for a year.
17 MM: No I'm not.
18 Okay.
19 MM: Because I feel ~hat' s wrong. All these other people do it and
20 they get away with it and gee, and here I make one miStake
21 and I'm sUpposed to pay for it. That's really sad. That's
22 really sad. Unintelliaible.
23 unintelliaible.
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I, Tammy ~. Kelly, a secreeary in ene law fi=m of Mancke, Wagner,
Hershey & Tully hereby verify ehae ~ personally eranscribed Che
aecached eranscripe from a video cape recording and I have done so
accuraeely and Co ehe bese of my abiliey.
~o...~ rN..-~LQ...Q.h\--
Tammy ~. ;celt 0
COMMONWEALTH OF PENNSYLVANIA
COT.JNTY OF CUMBERLAND
5S
On Chis, ehe loCh day of April 1998 before me, a Not:ary
Public, ene undersigned officer, personally appeared Tammy !..
Kelly, known Co me or saeisfaceorily proven co be ene person whose
name is subscribed co ehe wi chin inst~~ment, who ack-,owledged chac
she executed the foregoi~g verification for the pUrposes see forch
the::-ein.
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IN WITNESS WHEREOF, I hereunto
seal..
(5
NOlanal Seal
Emily A. Fink. Notary PuOll.:
YOrk. YOrk County
My CommiSSIon Expires NCv. 14. 1998
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illegal,
reasons:
The official action proposed by the Department is
improper and invalid for some or all of the fOllowing
a. Petitioner was not advised of the rights contained
in Penn DOT form DL 26 prior to the booking officer
indicating that her conduct was a refusal;
b. Petitioner was not properly advised of her
O'Connell warnings;
c. Petitioner was not properly advised under Section
1547 as to the length of the suspension for
refusing chemical testing;
d. Thp. information given by the booking officer in
this case was misleading and confusing and not in
accordance with case law pertaining to warnings
under the implied consent law;
e. The suspension is otherwise invalid pursuant to
statutory case law; and
f. The alleged refusal of Petitioner to take a breath
test was not knowingly, voluntarily and
intelligently made.
6. The Department, through its representative, Matthew
Haeckler, Esq., advised Petitioner'S counsel, on 01/19/98, that the
inclusion of information relative to Petitioner's operator number
and date of birth would be sufficient for Petitioner to perfect the
filing of this appeal.
7. petitioner has a PA operator's license number of
17184682, and her date of birth is 4-16-58.
WHEREFORE, Petitioner prays this Honorable Court grant a
supersedeas on the action proposed by the Department and schedule
a hearing relative to this matter.
Respectfully Submitted,
MANCKE, WAGNER, HERSHEY, & TULLY
Attorneys for Petitioner
Date:
I -,j.[). ~?
BY:~d~~~~
David E. Hershey, squi
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
Supreme Court 1.0. #43092
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MEGAN A. MILFORD,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Respondent
LICENSE SUSPENSION APPEAL
OLN: 17184682
DOB: 04/16/58
CERTIFICATE OF SERVICE
I, David E. Hershey, Esquire, of the law firm of Mancke,
Wagner, Hershey & Tully, hereby certify that I am this day serving
a copy of the foregoing document to the attorneys or parties of
record in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure,
certified mail, to:
by
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George Kabusk, Esquire
Office of Chief Counsel
Pennsylvania Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104
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Date:
J.,J/),UJ7
~/~~,~a<<~
David E. Hershey, sq.-
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg. PA 17123
DECEMBER 25. 1997
M[GAN ANN[ MILFORD
llb [AST[RLV DRIV[
~7352blOl7~b442 OOl
l2/l11/l~~7
lHll4bll2
04/lb/l~511
M[CHANICSBURG PA l7055
Dear Motorist:
As a result of your violation of Section 1547 of the Ve-
hicle Code. CHEMICAL TEST REFUSAL on 11/29/1997. your driving
privilege is being SUSPENDED for a period of I YEAR(S).
In order to co.ply with this sanction you are required to
return any current driver's license. learner's per.it andlor
te.porary driver's license (ca.era card) in your possession
no later than the effective date listed. If you cannot co.-
plY with the require.ents stated above. you are required to
sub.it a DLI6LC For. or a sworn affidavit stating that you
are aware of the sanction against your driving privilege.
Failure to co.ply with this notice shall result In this Bu-
reau referring this .atter to the Pennsylvania State Police
for prosecution under SECTION 1571(a)(4) of the Vehicle Code.
Although the law .andates that your driving privilege is un-
der suspension even I f you do not surrendur your license,
Cr.d1~ will not begin until all current driver's license
product(s), the DLI6LC ForM, or a letter acknowledging your
sanction is received In this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT.
WE WILL SEND YOU A RECEIPT. IF YDU DD NOT RECEIVE THIS RECEIPT
WITHIN 15 DAVS CONTACT THE DEPARTMENT IMMEDIATELV. OTHERWISE.
YOU WILL NOT BE GIVEN CREDIT rOWARD SERVING THIS SANCTION.
Th. .ff.c~1v. d.~. of .u.p.n.1on 1. 01/29/1998. 12101 ....
....................................................................
IWARNING, If you are convicted for driving while your lic.ns. is I
Isuspended, the penalties will bel not less than 90 days ieprison-I
leent and a .1.000 fine end an addltlonel I year suspension. I
.......................................................
Commonwealth's
EXHIBIT
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Please see the enclosed application for restoration fee In-
for.ation.
You have the right to appeal the nepartment's action to the
Court of Co.~on Pleas (Civil Division) within 30 days of the
.all date (DECEMBER ,Hi, t991l of this nnt Ice. PLEASE NDTI
that this Civil App~al Is in addition to any appeal you have
to file from the criminal conviction.
THE APPEAL MUST BE SENT BY CERTIFIED MAIL TO:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR, RIVERFRONT OFFICE CENTER
HARRISBURG, PA. 17104
Sincerely,
~~.W%
Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/DL-16LC/TO.
Depart.ent of Transportation
Sureau of Driver Licensing
P.O. Box 6B693
Harrisburg, PA 17106-8693
INFORMATION 17,00
IN STATE
OUT-OF-STATE
TOO IN STATE
TOO OUT-Of-STATE
AM TO 9,00 P")
1-800-932-4600
717-591-61'0
1-800-228-0676
717-591-61'1
ID
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CHEMICAL TESTING WARNINGS AND RIPORTOl' ';;\\II~,; 'to" ;11'11/,'/ ~ 'If':'" .,
REFUSAL TO SUBMITTO CHEMICAL TEITINO AS . oA)l.o..t~,;,; 'I , ..,. . .
AUTHORIZEO BY OF THE VEHICLI COOII ' .. "',
CJ.'"I''''I
SECTION 1541
HAUl
".00\1
ADDnUI
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MEGAN A. MILFORD,
Petitioner
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 9B-407 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
Respondent
LICENSE SUSPENSION APPEAL
IN RE: RECORD TO REMAIN OPEN
';1
"
ORDER OF COURT
AND NOW, this 9th day of April, 199B, pursuant to
an agreement of counsel, the record in this case shall remain
open for the purpose of filing a transcript to be prepared by
Appellant's counsel's office, subject to the approval of the
Commonwealth's counsel, of the intelligible portions of the
audio on the videotape which has been marked and admitted as
Appellant's Exhibit 1. Counsel are requested to advise the
Court at such time as that item has been filed so that the Court
~
can make a decision on the Appellant's appeal based upon the
completed record.
The release of the videotape to Appellant's
'il
,
,
counsel is conditioned upon approval of the District Attorney's
Office, and the tape shall be returned to the District
Attorney's Office when the transcription has been completed.
In the event that the District Attorney's Office is not
agreeable to a release of this tape, the Court will entertain a
motion of counsel for some alternative procedure.
David E. Hershey, Esquire
Counsel for Appellant
By the Court,
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J. Wesley Oler.l Jr."; (].,,'J
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George Kabusk, Esquire
Counsel for Respondent
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MEGAN A. MILFORD,
Pctitioncr/Appcllant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
Rcspondcnt/ Appcllcc
: CIVIL ACTION .. LAW
.
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: NO. 98.407 CIVIL TERM
: LICENSE SUSPENSION APPEAL
IN RE: LICENSE SUSPENSION APPEAL
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this z.l~ day of May, 1998, aftcr careful considcration of Appellant's
Iiccnse suspcnsion appeal, following a hcaring and for thc reasons statcd in thc
accompanying opinion, the appeal is DENIED and Appcllcc's suspension of Appellant's
driving privilcge for a period of onc ycar, by notice dated December 25. 1997, is
AFFIRMED.
BY THE COURT,
David E. Hershey, Esq.
Attorney for Appellant
I- 1iJ'4 'o-Oll
George Kabusk, Esq.
Attorney for Appellee
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knowingly, voluntarily alld intclligcntly madc.'
A hcaring was hcld on Appcllant's appcal on Thursday, April 9, 1998. Pursuant to
an agrccmcnt of counscl, thc rccord was supplcmcntcd by thc filing on May 7, 1998, of a
transcript of thc audio portion of a vidcotapc madc at a Cumbcrland County booking ccntcr
whcrc Appcllant was takcn for purposcs of administration of thc tcst.z
For thc rcasons statcd in this opinion, thc court is constraincd to dcny Appcllant's
appeal and sustain Appcllcc's suspcnsion of hcr driving privilcgc.
FINDINGS OF FACTS
1. Appcllant is Mcgan A. Milford, an adult individual rcsiding at 116 Eastcrly Drivc
Mcchanicsburg, Cumbcrland County, Pcnnsylvania;'
2. Appcllcc is the Commonwcalth of Pcnnsylvania, Dcpartmcnt of Transportation.
3. By notice datcd Dcccmbcr 25. 1997. Appcllcc suspcndcd Appcllant's driving
privilege pursuant to Scction 1547(b)(I) of thc Vchiclc Codc4 for a pcriod of onc year.s
4. The suspension rcsultcd from an allcgcd chcmical tcst rcfusal by Appcllant,
following hcr arrcst for driving undcr thc influcncc on Saturday, Novcmbcr 29,1997.6
5. The arrcst occurrcd in thc Borough of Mcchanicsburg in Cumbcrland County at
about 1:50 a.m., aftcr borough policc rcccivcd information by way of a citizcn's report,
I Appcllant's Liccnse Suspension Appcal, paragraph 5.
2 See Transcript of Videotape (Tape Playcd During Liccnse Suspension Hcaring) and
Letter of Concurrence Re: Authenticity/Accuracy of Vidcotapc Transcript, filed May 7,
1998.
J Commonwealth's Exhibit 2, Hearing, April 9, 1998 (hereinafter Commonwealth's
Exhibit_).
4 Act of June 17, 1976, P.L. 162, ~ 1, as amended, 75 Pa. C.S. ~ 1547(b)(1).
S Commonwealth's Exhibit 2.
6/d.
2
locatcd and followcd Appcllant's Lincoln uutomobilc, lInd confirmcd that shc was driving
crratically.
6. Mcchanicsburg Borough Patrolman Donald S. Sickcrman transportcd Appcllant
to thc Wcst Shorc Booking Ccntcr in Cumbcrland County.
7. Patrolman Sickcrman rcad thc following information to Appcllant from a clipboard
in thc booking ccntcr:
I. Plcasc bc adviscd that you arc now undcr arrcst for driving
undcr thc influcncc of alcohol or a controllcd substancc pursuant
to scction 3731 of thc Vchiclc Codc.
2. I am rcqucsting that you submit to a chcmicaltcst of brcath.
3. It is my duty, as a policc officcr. to inform you that if you
rcfusc to submit to thc chcmical tcst your opcrating privilcgc
will bc suspcndcd for a pcriod of onc ycar.
4.
a) Thc constitutional rights you havc as a criminal
dcfcndant, commonly known as thc Miranda Rights.
including thc right to spcak with a lawyer and thc right to
rcmain silent, apply only to criminal prosecutions and do
not apply to thc chcmical tcsting proccdure undcr
Pennsylvania's Implied Conscnt Law, which is a civil, not
a criminal procccding.
b) You havc no right to spcak to a lawycr, or anyonc clsc,
bcforc taking thc chcmical tcst rcqucstcd by thc policc
officcr nor do you havc a right to rcmain silcnt when askcd
by thc police officer to submit to the chcmicaltesl. Unless
you agrcc to submit to thc tcst requcstcd by thc police
officer your conduct will be deemcd to bc a rcfusal and
your opcrating privilcgc will bc suspcndcd for onc ycar.
c) Your refusal to submit to chcmicaltcsting undcr thc
Implied Conscnt Law may bc introduccd into evidcncc in
a criminal prosccution for driving whilc under thc
influencc of alcohol or a controllcd substancc.
8. Appcllant was intcrvicwcd by K~thlccn Cook of the booking ccntcr, who was
, ,
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,
.
,
,
3
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,
ccrtificd toudministcr Ihc hrcuth tcst.
9. Ms. Cook lIdviscd Appcllunt of hcr Mirllndu rights hcforc intcrvicwing hcr.
Appcllunl stulcd thut shc underslood thosc rights, but declincd to lIcknowlcdgc this by a
signuturc und insistcd upon spcaking with hcr boyfricnd.1
10. Ms. Cook procccded to administcr scvcral ficld sobricty tcsts 10 Appcllant.K
II. Aftcr submitting to thc ficld sobricty tcsls, Appcllllntanswcrcd scvcral qucstions
for Ms. Cook. Among othcr things, shc dcnicd that shc had bccn drinkingY
12. Whcn Ms. Cook adviscd Appcllantthat shc was going to administcr thc brcath
tcst. thc following cxchangc occurrcd:
APPELLANT: I don't havc to do this.
MS. COOK: Huh?
APPELLANT: I don't havc to do this.
MS. COOK: Yca.
APPELLANT: No I don't.
MS. COOK: Mcgan, yca you do.
APPELLANT: No I don't.
MS. COOK: Mcgan, thc officcr brought you hcrc with
thc intcntthat you'rc going to do this.
I want to talk to my boyfricnd bcforc I do
APPELLANT:
this.
MS. COOK: No, you don't havc thc right to talk to
anyonc bcforc you do this.
7 N.T. 1.4. Transcript of Booking Ccntcr Intcrvicw. November 29,1998 (hereinafter
N.T. _, Booking Ccntcr Transcript).
K N.T. 4.7, Booking Ccnter Transcript.
9 N.T. 7.11. Booking
ccntcr Transcript.
4
~
"
APPELLANT:
I huvc a right to tulk to a lawycr.
MS. COOK: Mcglln. if thc subjcct rcfuscs to takc thc
brcath tcst, thc proccssing officcr will advisc. You havc bccn
arrcstcd for driving undcr thc influcncc of alcohol or a
controllcd substancc. You havc bccn brought hcrc by thc officcr
so thattcsts of your brcath may bc administcrcd to you. Undcr
Pcnnsylvania law you havc implicd conscntcd, you havc
implicdly conscntcd to subjcct, to tcsts by driving, opcrating, or
bcing in physical control or thc movcmcnt of a motor vchiclc.
That mcans whcn you gct a drivcrs liccnsc you'rc automatically
arc covcrcd undcr this law which mcans that if you rcfusc to
submit to thc brcath tcst your opcrating privilcgcs will bc
suspcndcd automatically by thc Dcpartmcnt of Transportation
for a pcriod of onc ycar or morc.
APPELLANT: Wclll havc to call my boyfricnd bccausc
I don't undcrstand this.
MS. COOK: What. it's rcal ..
APPELLANT: I was with him.
MS. COOK: If you don't takc thc tcst. Mcgan, your
liccnsc will automatically bc takcn away for atlcast onc ycar.
That's cxactly what it mcans. It's plain and simplc.
APPELLANT: Wcll I don't undcrstand bccausc other
pcoplc gctthcir Iiccnse takcn away.
MS. COOK: Wcllthat's thc way it is. if you rcfuse to
takc thc breath tcst your liccnsc will bc takcn away.
APPELLANT: Can I call my boyfriend?
MS. COOK: No.
APPELLANT: Why?
MS. COOK: Bccausc you don't havc a right to call
anyone or do anything insofar as thc test or anything Iikc that.
APPELLANT: Wcll scc I don't undcrstand that. Why
can'tl call .. Why can't I call my boyfricnd?
5
MS. COOK:
This is ..
Bccuusc hc hus nothing t:J do with this.
APPELLANT:
Hc ccrtuinly docs.
MS. COOK: No hc docs nol.
APPELLANT: "Ic's bccn with mc forcvcr
MS. COOK: Wcll. that's fine. But this is with you okay.
You wcrc thc onc who was arrcstcd for driving undcr thc
influcncc. And if you don't takc the brcath tcst, your liccnsc
will automatically bc suspendcd for atlcast a year so that's ..
APPELLANT: I'vc ncvcr bccn everevcr stoppcd bcfore in
my wholc cntirc lifc -- before tonight.
MS. COOK:
APPELLANT:
Wcll that's
Yea but for a whole year?
APPELLANT: Now how come allthesc othcr people just
gct stopped for likc __
MS. COOK: Megan,' don't have the time to debate this.
Are you going to takc the breath tcst?
APPELLANT: No I'm not.1O
13. The exchange between Appellant and Ms. Cook continued as follows:
MS. COOK: Okay. You do understand that your license
will be taken away for at least one year.
APPELLANT: No' don't understand why my license will
be taken away for a year.
MS. COOK: I just read to you because when you get a
license, when you get a driver's Iicensc. that's all part of _.
APPELLANT:
ycar
MS. COOK: I can't spcak for other people. I'm spcaking
for what -- what's going on herc right now. That's the law
Nobody gets their license taken away for a
10 N. T. II. IS. Booking Center Transcript.
6
'---- ,
14. Appellant's refusal to consent to a chemical test to determine her blood alcohol
content was a result of a reluctance to proceed without consulting an acquaintance and a
reluctance to believe that a suspension would be fair in her case.
15. Appellant was clearly and correctly told prior to her refusal that she did not have
a right to consult her friend in connection with the test and that a license suspension of at
least one year was the legal consequence of a test refusal.
16. Appellant's refusal to consent to submit to a chemical test of her blood acohol
content was knowing, intelligent and voluntary.
DISCUSSION
Statement of/aw. To support a license suspension under Section 1547(b)(I) of the
Vehicle Code, the Department of Transportation must establish fourfacts. It must show (1)
that the driver was arrested for driving under the influence of acohol and/or a controlled
substance, (2) that the driver was asked to submit to a chemical test, (3) that the driver
refused to 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. See Department of Transportation, Bureau of
Driver Licensing v. Zeltins. 150 Pa. Commw. 44,50-51,614 A.2d 349, 353 (1992),12
In addition, "to 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),] that when an arrestee requests to speak with an attorney, whether or not he exhibits
confusion ... [and] 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
12 "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:' Department of Transportation. Bureau of Driver
Licensing v. Zeltins, 150 Pa. Commw. 44,52,614 A.2d 349, 353 (1992). The present case,
however, is not a lack-of-capacity case.
8
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Transportation, Burcau of Drillcr/.lcl'l/sll/g I'. I'/I,kll,
I'll. COOIIIlW, __, _, 654 A,2d
227,229 (1995),
Finally, "even if Ihe policc pmv/de II sufl'lcienl () 'CIII/I/I'I/ wllrning, u license
suspension imposed on u liccnsee for refusing 10 consenl 10 ehemicul lesling must be
reversed if the fuct finder delerl11incs thullhc circufllslunces surrounding the police's request
for chemical testing ure confusing und prevelllulicensce fml11underslunding the warning,"
Id at_, 654 A.2d ul 2.10. Inlhis rcgurd, "Ihc queslion of whelher ulicensee is confused
or not is a subjective lesl ,..," 1tI. UI...., 654 A.2d III 2.10, cltil/g Dcpartmcllt of
Transportation, Burcau of Drillcr Uccl/sillg I'. /lIgmm, 5JIl Pu, 2.16, 648 A.2d 285 (J 994).
'''If a licensee's self-inflicted condition duc 10 his voluntury consumption of alcohol is a
factor which contributes to rcndcring him I11cnlully incapable of making a knowing and
conscious refusal to submit 10 chcmicul Icsling, Ihc dcfcnse of incapacity must fail,'''
Commonwealth of PClIl/sylllal/ia, DCpllrtmcllt l!f7irll/Spllrtatillll 1'. Monsay. 142 Pa. Commw.
163, 167,596 A,2d 1269, 1271 (1991), t!ulltillg AppclI! ofCml'cllcr, 135 Pa. Commw. 480,
484, 580 A,2d 1196, 1191l-99 (1990).
Pennsylvaniu courts huvc consislcrllly dcfincd rcfusalas "anything substuntially short
of an unqualificd, uncquivoculusscnt10 un officer's requcstlo the arrested motorist." In re
Appeal of Millcr, 79 Pu, Conllllw. 641l, 650, 470 A.2d 213 (1984).
App/ication ofltlll' tofilCts. Inlhe prescnl casc, thc Commonweulth demonstrated that
Appellunt was arresled for driving undcr Ihc influcncc of alcohol, that she was asked to
submit to a chemicullcst to dctcrminc thc alcohol contcnt of her blood, that she refused to
do so and that shc hud bccn wurncd Ihut a rcfusal would rcsult in the suspension of her
license for u period of ul Icast onc ycar. She was told that she did not have a right to speak
to a lawyer or anyone else before luking Ihe chemical test, that her Miranda rights did not
apply to the chemicallcsling proccdurc, und Ihat Ihc rcason for Ihis was that Miranda rights
applicd 10 criminul Procccdings only, Whcn shc qucslioncd thc propositions that shc did not
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