HomeMy WebLinkAbout00-07695
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MAX J. PEAIR,
Appellant
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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NO. W-7h"l.j ~
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v.
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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 g ~ day of NOYlrnhd'C
2000, upon
consideration of the within APPEAL OF OPERATORS LICENSE SUSPENSION,
it is hereby ordered that a hearing shall be held regarding this
matter at on the ). /11t1 day of FZb~d 200rJ at /: 3()
-(p.m1 in Courtroom No. S of the c~~(and County
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.
Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Third Floor,
Riverfront Office Center, Harrisburg, PA 17104
-Patrick F. Lauer, Jr., Esq., 2108 Market St., Camp Hill, Pa 17011
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CUiviBERlAND COUNTY
PENNSYLVA,\JIA
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MAX J. PEAIR, : IN THE COURT OF COMMON PLEAS OF
Appellant . CUMBERLAND COUNTY, PENNSYLVANIA
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NO. ("0. 7(" 95' Cwu I-!.JVI^,
v. .
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COMMONWEALTH OF PENNSYLVANIA, . Appeal of Operators License
.
DEPARTMENT OF TRANSPORTATION, . Suspension - Chemical Test
.
BUREAU OF DRIVER LICENSING, . Refusal
.
Appellee :
APPEAL OF LICENSE SUSPENSION
AND NOW comes the Appellant, Max J. peair, by and through his
attorneys, the Law Offices of Patrick F. Lauer, Jr., and
respectfully avers the fqllowing:
1. Appellant resides at 35 Spring Garden Estates, Carlisle,
Cumberland County, Pennsylvania 17013.
2. The Appellant received a notice dated October 8, 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 November 7, 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.
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5. The Appellant submits his actions did not constitute a
refusal.
WHEREFORE, your Appellant respectfully requests your
Honorable Court to schedule an evidentiary hearing on the matter.
Respectfully submitted,
Date:H . {tJ~'50-6J?}
~.
Patr~ck F. Lauer, Jr., Esqu~re
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
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MAX J. PEAIR,
Appellant
:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
.
.
.
.
NO.
v.
.
.
.
.
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING,
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
.
.
.
.
ATTORNEY VERIFICATION
I, Patrick F. Lauer, Jr., Esquire, undersigned counsel for
Appellant, Max J. peair, hereby verifies and states that:
1. I am the attorney for Appellant, Max J. peair;
2. I am authorized to make this verification on my client I 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.
Respectfully submitted,
W r-~
Date:
jD->o--OO
Patrick F. Lauer, Jr , Esquire
2108 Market Street, ztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
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MAX J. PEAIR, :
Appellant :
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.
v.
:
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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
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:
lD - sO -OU
p~ C'
Patrick F. Lauer, Jr., ire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
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14102
10/28/00 03:32 FAX
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COMMONWEALTH OF PENNSVLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driv@r licensing
Harrisburg, PA 17123
OCTOBER 03. 2000
MA)( J PEAIR
35 SPRING GAR>>~N ESTS
CARLISLE PA , 11013
002706112514206 DOL
O"l/2b/<!ODO
21022'1211
05/D4/1'11:.4
Dear Kotorist.
As a result of your violation of Section 1547 of 'the
Vehicle Code. CHEMICAL TEST REFUSAL on 09/09/20DO. your
driving privilege is tieing SUSPENDED for a perIod of 1
YEARCSI.
In order to comply with this sanction you are required to
return any current driver's license, learner's oermit and/or
temporary driver's lIcense Ccamera card) In your possession
no later than the effective date listed. If yeW cannot
comply with the reouirements stated above, you are required
to submit a DL16L~ Form Dr a sworn aff1dayl't stating th~t
YOU are aware ,of the sanction against your driving privi-
lege. Failure to COmplY with this notice shall result in
this Bureau referring this matter to the Pennsylvania State
Police for prosecutIon under SECTION 1571(a)(4) of the v.-
h i,cle Cod...
Although the law mandates thilt !IOUI' driving privilege is
under suspension even if yoU do not surrender your liCense,
Cred~t will not be!!in until all current driver's ~ic"nse
oroduct(s). the Dl16LC Form. or a letter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECE IVES YOUR LICENSE OR ACKNOWLEDGE-
MENT. WE WILL SENO YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS
RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMEMT iMMED1ATElY.
Ol"ERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS
SANCTION.
The e~~.~~ive date of suspension is 11/07~2QOQ, 12:01 a.m.
********************.**************************************.-***.-**
IWARNING. If you are convicted for driVIng while your license is I
lsuspended, the penalties will be: not less than 9D days imprison-(
Iment and a 1,000 fine and en additional 1 Year suspension. I
*******..***.***.*.*..**..**..*...*******-*******-*********.********
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002706112514206
Please see the enc1ose~ apPlication for restoration fee in-
formati'ln .
Al'.fEAL
You halle the right to appeal this action to the Court of
Common Phas (Chil Dlvislon) withln 50 dalls of the mail
date of this letter, OCTOBER 05, 2000. If YOU file an appeal
in the County Cou~t. the Cou~t will give you a t1~e-Btamped
certified COpy of the appeal. Send this time-stamped cer-
tified copy Of the appeal by certified mail to.
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION.
OFFICE OF CHIEF COUNSEL
THIRD FLOOR. RIVERFRONT OFFICE CENTER
HARRISaURG. PA, 1710~-2S16
Sincerelv,
~~.~
Rebecca L. aickley, Director
BureaU of Driver Licensing
SEND FEE/LICENSE/DL-16LC/TO,
Department of Transportation
Sureau of Driver Licensing
P.O. Sox 6B693
Harrisburg, FA 17106-8693
INFORMATION (7.00
Hi STATE
OUT-Of-STATE
TOO IN STATE
TDD OUT-OF-STATE
AM TO 9.00 PM)
1-80D- 932-4600
717-391-6190
1-80D-228-0&76
717-391-6191
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JAN 3 0 2001
MAX J. PEAIR,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v. NO. 00-7695
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION APPEAL
BUREAU OF DRNER LICENSING,
RESPONDENT
ORDER
AND NOW, this 3rt' daYOf~ ,2001,the
Department having requested that the above-mentioned matter be continued because Agent Carol
Frank, a necessary witness for the Department, on January 29,2001 slipped and fell on the ice
and broke her ann and has an appointment with an orthopedic doctor on the afternoon of
February 2,2001, and without objection of the continuance by the petitioner, the hearing in the
above referenced matter is CONTINUED and RESCHEDULED for the 14th day of Februarv,
2001, at 2:00 p.m., in Courtroom Number 5 in the Cumberland County Courthouse, Carlisle, P A.
BY THE COURT
J.
DISTRIBUTION: '
George Kabusk, Esquire, Commw, of Penna. , Dept. of Trans" Office of Chief Counsel, ~ ~
Riverfront Office Center-3rd Floor, 1101 South Front Street, Harrisburg, P A 17104-2516 ) _ 3'- 0 (
Patrick F, Lauer, Jr., Esquire, 2108 Market Street, Camp Hill, PA 17011 r-
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CHEMICAL TESTING WARNINGS AND REPORT OF
REFUSAL TO SUBMIT TO CHEMICAL TESTING AS
AUTHORIZED BY ~ OF THE VEHICLE CODE
NAME
SEX 'DATE OF BIRTH
MONTH DAY, yeAR
CITY
5'
STA.TE
OJ f:,
, ZIP CODE
CA
Pit I 13
SOCIAL SECURITY NUMBER
STATE
2
28
PIl
SECTION 1547 - CHEMICAL. TESTING WARNINGS '
1. Please be advi;3ed that you are noW under arrest for driving under the influence of alcohol or a controlled substance pursuant to section 3731 of
tho Vehicle Coda. _ _ \ \
2. I am requesting that you submit to a chemical tast of ~~h (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
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 ramain silent, apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied
Consent Law, which is a elvil, not a criminal proceeding.
b) You haV9 no rightto speak to a lawyer, or anyone else, before taking the chemical test requested by the police officer nordo you have a right to
remain silent when asked by the porice officer to submit to the chemical test. Unless you agree to submit to the tast requested by the police otticar
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
white undar thQ influence of alcohol or a controlled substance.
I have been advised of the above. . O_I? -~....... '"1"1' 5t".}
Signature of Motonst: ~rv::::>~ '-" v \::P./'oJ
Motorist refused to sign, after being advised. ~ . /, 12'
.-1:..'SignarureofOfficar: _~ _~
. ./
1YrTMe5S : ~..c, '1J./~ AFFIDAVIT
1. The above motorist was placed under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3731 at the
Vehicle Code, and thera were reasonable grounds to believe that the above motorist had bean driving, operating or in actual physical control of
the movement of a motor vehicle while under the influence of alcohol or a controlled substance or both.
or
That the above named motorist 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. .-<.t.
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 cont9-ined in paragraph 3 and 4 above.
4. The above named motorist refused to submit to chemical testing.
OF'FICER NOTE: The refusal to sign this form is not a refllsal to submit to tho chemical test. You must still give the motorist an opportu~
nity to take the chemical test aner reviewing this form. If the individual was operating a commercial motor vehicle while having any
alcohol or a controlled substance in their system, you must also oomPI~te the re,/?;..;ide 01 this lor~ .
sueSCR1SEDANDSWORN (~ I "'IY'\ Officer Signature: ~ ;::2_~
TO BE ME: MO. I CAY YEAA "'-'J
OmcerName: )1,4e..~T. Ge..~~JJ
(Type or Prlnl)
EAst P\:no:>bo\'c
Jurisdiction: --rWP p, '\),
J certify that I have read the above warning to the motorist regar n9 the suspension of their operating privilege and gave the motorist an opportu-
nity to submit to chemical testing. . 0, / 9 / f!) 0
Signature of Officar' Date: l
I, I
CZ h ) 00
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Data:
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Forward to:
Department of Transportation
Bureau of Driver Licensing
P.O. Box 60037
Harrisburg, PA 17106.0037
THIS FORM MAY BE DUPLICATED
Badge Number:
Phone: all) 732- ~b~ J
Mailing Address CJI S. .~ lJoLA DR.
fLJorf'r PA- /)02.<:'
Ib2-i
...
Note: Any pertinent facts not covared by the affidavit should be submittgd on a
separate sheet and attached hereto. That sheet should include the names of
additional witnesses necessary to prove the elements to which you have attested.
ADDITIONAL SUPPLIES OF THIS FOAM MAY BE SECURED BY COMPLETING FOAM OS-S11A
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MAX J, PEAIR,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
00-7695 CIVIL TERM
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
IN RE: LICENSE APPEAL
ORDER OF COURT
AND NOW, this 14th day of February, 2001,
. "Jter hearing, we find that the officer had reasonable
grounds to suspect that the Defendant was operating under
the influence of alcohol, and to request a breathalyzer
test.
We further find that the Defendant voluntarily and
knowingly failed to submit to said test by failing to
provide appropriate and sufficient breath samples.
Therefore, the action of the Department in suspending his
operating privileges is sustained, and this appeal is
dismissed.
:mae
Edward E. Guido, J. ~
k . }_,D
George Kabus , Esqulre _',y \?
For the Appellee . t~ O'?r' ~
Patrick Lauer, Esquire
For the Appellant
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