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Home My WebLink About01-2093 FX ~ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. Jeffrey J. Miller, Petitioner : CIVIL ACTION - LAW : NO: 0/- :2.0 93 CIVIL TERM PETITION FOR APPEAL FROM ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATOR'S LICENSE TO THE HONORABLE JUDGES OF SAID COURT: 1. The Petitioner, Jeffrey J, Miller is an individual residing at 151 Big Spring Terrace, Newville, Pennsylvania 17241. On March 9, 2001 the Department of Transportation mailed a Notice of Suspension of Driving Privileges to the Petitioner. (See attached Exhibit "A") 2. The effective date of the suspension is April 13, 2001. 3. Said suspension arises out of the Petitioner's alleged refusal to take a chemical test Pursuant to !l1574 of the Vehicle Code, 4. The Notice of Suspension is insufficient as a matter of law and violates Due Process under the Pennsylvania and United States Constitutions. 5, Said suspension is not supported by the evidence and is erroneous as a matter oflaw. 6. Said suspension should be automatically Stayed upon the filing of this Petition and upon timely notice to the Department of Transportation, WHEREFORE, your Petitioner Respectfully Requests that this Appeal be granted and, in the interim, that this Honorable Court enter a Stay of the Suspension of Petitioner's Operating Privileges pending this AppeaL ,,'~"'" '-~--'"~'. , ~~ . , Date: Y /1/D / '7' _<~ " ~- ,- " ,'~ ," ,.. Respectfully Submitted, THE LAW OFFICES OF PAUL BRADFORD ORR ~~LaL Attorney for Petitiouer 50 East High Street Carlisle, P A 17013 (717) 258-8558 Supreme Court ill # 73471 f-'1--i . -' . ,".. ,.. COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. Petitioner : CIVIL ACTION - LAW : NO: CIVIL TERM Jeffrey J. Miller, VERIFICATION I verify that the statements made in the foregoing Petition for Appeal from Order of Department of Transportation Suspending Operator's License are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa,C.S. ~ 4904, relating to unsworn falsification to authorities, DATE:l..( - (p - 6/ - ~1JW~ Je y. . , Petitioner if ~ , , ,- . ~ '. . r - ,-, t . . , , . . COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. Petitioner : CIVIL ACTION - LAW : NO: CIVIL TERM Jeffrey J, Miller, CERTIFICATE OF SERVICE I hereby certifY that a true and correct copy of the Petitioner's Petition for Appeal from Order of Secretary of Transportation Suspending Operator's License was served certified mail upon the following: Pennsylvania Department of Transportation Office of Chief Counsel 3rd Floor, River Front Office Center Harrisburg, PA 17104-2516 Date: 1f1'1 J lJ / a ;:C::tL Greg~ler, Esq. "!~' ",- . '- ~ " ,--'I ". " ~, , ~ -~ -~, ' II ,'I Es- lel" 1IPl'(,_ ,",".0' . . . ~[ ...... - ...... ~ ~ Q.. . ~ feVl ~~ '-...( '. ~ ~() B~ , - . ~.,~ - (j c: :<~ -00", t:;\L z( 0')" G~~--'~ :};C: ~~:. ?~\ .< c> -,.-; \ tD .. .. ..~<~. ,,- (.0 g -~-, ::..? "- ~ ..~~ .~_~-,_~;&:;r""-"iR"!"l"'''}-''I<fWr'P-m;~"ilJ1i!l!jlJ~~~''~~~~ . . COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. Petitioner : CML ACTION - LAW : NO: 01 -.lo,3 CML TERM ORDER OF COURT II {i day of v1 p" : t.-. 2001, upon consideration of the Jeffrey J. Miller, AND NOW, this Petitioner's Petition for Appeal from Order of Secretary of Transportation Suspending Operator's License, it is hereby ORDERED that a hearing be held on the dId day of ~ , 2001, at 1:3t> O'clock A ,M.inCourtroomNo. / The Suspension of the Petitioner's Operating Privileges are Stayed pending the outcome of this AppeaJ t.. ~~~t<Cl)ttt,t .suc..~.2 ~f;l'';' lllA2l)dJzel. t..7 s \ z.L l c.. . BY THE COURT: J. L~;:J~ ~~ Distribution: Pennsylvania Department of Transportation Office of Chief Counsel 3rd Floor, River Front Office Center Harrisburg, PA 17104-2516 Gregory 1. Cutler, Esquire 50 East High Street Carlisle, P A 17013 (") f';: ;:g;~i~ ::::: '-r:' ?j>-~: r-' l~~' 2: :< ::-"" -'~J ~-J ~......,; ,,, "" '1, ;"" (...:> > ~:TJ -< ~~,"d 1-1 ~ -0/ ...M-' ,-,~~ I!'I-- < ~1 ]_ ,<,' , . . '","' --~ COMMONWEALTH OF PENNSYL V ANlA DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL V ANlA v. Petitioner : CIVIL ACTION - LAW : NO: 01-2093 CIVIL TERM Jeffrey J. Miller, AFFIDAVIT OF SERVICE COMMONWEALm OF PENNSYLVANIA ) COUNTY OF Cumberland ) AND NOW, this 27th day of ~ 2001, I Gregory 1. Cutler, Esquire, attorney for Jeffrey J. Miller, Petitioner, in the above-captioned action, hereby swear that I have served a true copy of the Petition for Appeal from Order of Department of Transportation Suspending Operators License, executed by the Petitioner in the above-captioned matter, upon Respondent, Pennsylvania Department of Transportation, Office ofthe Chief Counsel, by depositing the same in the V,S. Mail, postage prepaid, certified, return receipt requested. The original return receipt card signed by the Respondent on April 16, 2001 indicating service was effected, is marked Exhibit <<A", attached hereto and made a part hereof. LAW OFFICES OF PAUL BRADFORD ORR Dated: ~/017hl a,c4^n1d Attorney for Petitioner 50 East High Street Carlisle, P A 17013 (717) 258-8558 LD. # 73471 , ~'D~~_ -1")'" ,'. , , -1- EXHIBIT "A" ftN~YI.VANW1 DrPt". of TRAN5 PoR.T A 1"/fiNCoUNff.L oFF let: of tHIEF seD {LOOK'., e,V€e~lJNf' 6F~ ..'..',. .t'LI 1716lf- iJlttE/S8u,e G ) ffI 15 J t; 70C]Q 3:;.XJ CiJI / ()(j~cJ 105:;' " , ~ ' '1' - - - , , _ .,-" . _ - - . - ," ~ I . . Compiete.ltem. 1.2. and 3. Also complete item 4 ~ Restricted Delivery is desired. . Print your name and address on the reverse_.._._ so that we can return the card to you. "'- 0". Attach this card to the back of the mailpiece. or on t~}~,Dt if space permits. 1. ArtiJt1e Addressed to: 2. Article Number (Copy from service label) c. Signature x o Agent D_ OVes o No \lIanla .' II..,. , . "Ill'l'lilllllll from ilem 1? . If YES, enter delivery address below: APR 1 6 2001 OFFICE 01' . IV ceType Qi6;;rtified Mail 0 ,Express Mail 6- Registered IIi Return Receipt for Merchandise o In,urod Mail 0 C.O.O, 4. Restricted Delivery? (Extra Fee) Dves M lUEl?..- 102_,1789 PS Form 3611. July 1999 Domestic: Return ReceIpt "".,. ,., :'~ 0" -- ,.....j I"':". " ~,.~l!IJ!Q]J;JfJJ,!flr -^~, -- <, -~ -, ~- - ."~"' ,~,' . 0 0 S1 c ~ """ -om v mrT1 :CD :~~~1 2:x; . ..;2J tsC N -<~ -' \"~ ~~~ ~o '"'D ~(") ::E: ;:..:..;-=!:? Cl ::>0 >c: ~ C5rn 2 N ;;! =< 0 ~ . ,....~!fiJ~!~.>lfji'l~i;,'%';~!:"'~'-""'ij!l';:'J'I'f--b'J'l!*~i'i'~~~~,,lJlfJl!lllW,<!1~~~ , . -. - COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. Petitioner : CIVIL ACTION - LAW : NO: 01-2093 CIVIL TERM Jelfrey J. Miller, MOTION TO CONTINUE AND NOW, this jl~ay of ~h.>-. ,2001, comes the Petitioner, Jeffery J Miller, by and through his attorneys, THE LAW OFFICES OF PAL BRADFORD ORR, and respectfully avers as follows: 1. A hearing on the above captioned matter is currently scheduled for June 21, 2001, at 9:30 am. in Courtroom number 1. 2. Undersigned counsel is a National Guard Officer scheduled for duty from June 15, 2001 until June 30, 2001. 3, Undersigned counsel will be unavailable for a hearing on June 21, 2001. 4. George Kabusk, Esquire, Attorney for the Pennsylvania Department of Transportation does not oppose this continuance. WHEREFORE, the Petitioner requests that a hearing on the above captioned matter be rescheduled to a time and date convenient to both parties. Dated:b;/; /01 Respectfully Submitted, d?$9{,{JL Attorney for Petitioner 50 East High Street Carlisle, P A 17013 (717) 258-8558 I.D.# 73471 "-1\'l~<ESIf!i~N<w.< ~~ ," -',. I ~ ""-'''"'''''' ,~~-- ~ . " COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Respondent : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. Petitioner : CML ACTION - LAW : NO: 01-2093 CIVIL TERM Jeffrey J, Miller, CERTIFICATE OF SERVICE 1 hereby certify that a true and correct copy of the Petitioner's Motion to Continue was served certified mail upon the following: George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 3,d Floor, River Front Office Center Harrisburg, PA 17104-2516 Date: 6"/;//0/ ~~,{a <'~"l~I'<'i'JC"~"""",~.l> "" - " : I . i , " ~ - ._"~ ~~,""'==" .... , COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Respondent v. Jeffrey J, Miller, Petitioner . ~ ... : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO: 01-2093 CML TERM ORDER OF COURT AND NOW, this 1'"1 ttday of ;:f \177 to. ,2001, upon consideration of the Petitioner's Motion to Continue it is hereby ORDERED that a hearing be held on the !d&day of ~ 2001, at ;:30 o'clock-l-M. in courtroom number, I Distribution: George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 3'" Floor, River Front Office Center Harrisburg, PA 17104-2516 Gregory L. Cutler, Esquire, 50 East High Street Carlisle,PA 17013 ~ 6;1 '1101-<<., :-:~~,~,~ " ~ - 1, r, BY THE COURT: VlN\fAlASi',IN3d AlNnO:J or,VltESV'ln:J ~ U :1:: Ild i"J I Nni 10 mrilOiIC'H:.i:' . 'coO j81:J:{)--G3'iL~; . / l' ,,~ Ji !! 'J "'" ... ,-, -~~ ~I!!i'l !f"'~-.' 'IjR'll''*'!'_M:(~. ~~ ~-~. ,-'~ " -'"""'~""'- ". ,-.~,>,=~ -, '.~"'- "'"'--.if. , "._^"~~ "' "~. ,,_~___,__ d "''''',' ., ~ .~" ,~-~>~" ~ .. ".-'"fi'f'",e"',, ,'I.. ",,_~,,:~WH~iM'W1"m1l~'p'-'~"'1~"'1'H""~',:"liff"if'~~~Jljl!l!!j~1;;!ffl"*~~\!li/H!~~!!ffl'i')1~ ," ,-~ " , ~':"'_ ',' "'~,_~,". . c. 0- . - ',.;~ . ',' '~~',-'"" '''.''',,'-'- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver licensing Harrisburg. PA 17123 MARCH 09, 2001 JEffERY J MILLER 151 BIG SPRING TERRACE NEWVILLE PA 17241 010blobl14U511112 03/02/2001 24270112' . U/J.lo/l'7b DOl , Dear Motorist: I As a result of Your violation of Section 15470:f the Vehicle Code, CHEMICAL TEST REFUSAL on O;~/0812001, I your driving priVilege is being SUSPENDED for a periOd of 1 1 YEARISl. I In order to comply with this sanction YOU ure required to return any current driver's license, learner's per.il and/or h"llporarv driver's license (Clllllera carel) in your ItOSSessiQII 110 later than tilt! effecthe date listecl. If YOU cannot comply with the rt!quirements stated above, YOU are required to submit a DL16LCForm or a sworn affidav~t stating that YOU are aware of the. s~nction against YOUr driving privi- lege. Failure to co'mplywith this notice l:hallresult in this Bureau referring this matter to the PennsYlvania State Police for prosecution under SECTION 1571(a)(4> of the Ve- hicle Co,je. Although the law mandates that YOUr driVing priVilege is under suspension e~en if YOU do not surrender Your license. Credit will not begin until all current dl'iver's l)cense product( sl, the DLl6LC Form, or a letter aCknowledgin'g ,your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE llR ACKNOWLEDGE.. MENT, WE WILL SEND YOU A RECEIPT. IF YOU 00 NOT RECEIVE THIS REeE IPT '>'lITH IN 15 DAYS CONTACT THE DEPARTMENT I"MEDIATEl Y, OTHERWISE. YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCl ION. The effective date of sUspension is 04/13/20Dl, 12:01 a.M. .~*._~*****~*4*******~******4*******.*******'***4******4.~~ I WARNING: If YOU are convicted for driving while your I license is suspended, the penalties will be: a MINIMUM I of 90 days imprisonment AND a 1,000 fine AND your I license will be suspended for 1 Year. .~*_..__.*~**.*.*~**********.**********4****'f****..***** PETITIONER'S -z'" ~ EXHIBIT ~ #1 ; IQ'~,() I pe~ {'i'.'*IHi""~i--0'~~"~-"!I'"_"""""'I$;'''''''''''''''''_,.~~,,,.\'f''''!'~'''''_'''' ~~~~r~ 1 It ,~ 1~ '"~'im,f';-<y.I,.--",'Ci""''*~''''''"'''~''''.''-1',,,,C--'-r''''''Ln~i-~"'~"I:-";n'_', . DL-26 (7-94) t!)~,..~ f , '-'..,.)1 CHEMICAL TESTING WARNINGS AND REPORT OF 0 '1 C) REFUSAL TO SUBMIT TO CHEMICALTESTING AS AUTHORIZED BY OF THE VEHICLE CODE J. t:J ~i. co i.;,. t E,;1 :::~ E~~2 SECTION 1547 g4 9-10 SEX MIDDLE LAST MONTH DAY ~ M '\.,.l.lZ'2. 1"\ \I II CITY STATE ZIP CODE ,e'iR4U.: ">,4 I-'~I STATE SOCIAL SECURITY NUMBER ~A (;,~ 01 a NAME FIRS, _. ..x..~'t ADDRESS t>99 SECTION 1547 - CHEMICAL TESTING 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 ~LO~ (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 remain silent, apply only to 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. I have been advised of the above. Signature of Motonst: suspension of their operating privilege ard g~ve the motorist an opportu- Date: ~/o~J Or e (/'JS I certify that I have read the above warning to the m nity to submit to chemical testing. ~ Signature of Officer: \ , Date: Motorist refused to Sign, after being advised ,,\'""\'1.. ~~ Signature of Officer '" AFF A IT 1, The above motonst was placed under arrest for driving under the influence f alcohol or a controlled substance In violatIon of Section 3731 of the Vehicle Code, and there were reasonable grounds to believe that the above motorist had been 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 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 contained in paragraph 3 and 4 above. 4. The above named motorist refused to submit to chemical testing. OFFICER NOTE. The refusal to sign this form is not a refusal to submit to the chemical test. You must stili give the motorist an opportu. oity take the chemical test after reviewing this form. If the individual was operating a commercial motor vehicle while having any ale 01 r a controlled substance in th r: ystem, you must also complete the reverse side Date Q3/dc\ cerzo<a Officer Name: ...::. l. "z. (Type or Print) Officer Signature: 'lv"K.. Badge Number: ~I JurisdictiDn: ( CA>"t,-,~ i)s.~ ). <..........~~~ c..(>J~-;'() Forward to: Department of Transportation Bureau of Driver Licensing P,Q. Box 60037 Harrisburg, PA 17106'0037 THIS FORM MAY BE DUPLICATED Phone:(V'\) ~'-\~ - 8.a.l Mailing Address IS~~ Co"",,""l<.~<:'~ A",~. c.....~\...\.."u..=: (j:l,,\ fIe I~ ~~ Note: Any pertinent facts not covered by the affidavit should be submitted 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 FORM MAY BE SECURED BY COMPLETING FORM OS-511A ~-, ',' .._~ ~""~,~ .~ .'~ !"O,~ ^ ..' ~ -'" ... JEFFREY J. MILLER, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2001-2093 COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRNER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL ORDER AND NOW, this ~ day Of~, 2001, upon consideration of the Department's request for a continuance, and without objection from the petitioner, the hearing in the above referenced matter is continued and rescheduled for the stb day of October, 2001 at 1:30 p.m. in Courtroom Number! of the Cumberland County Courthouse, Carlisle, Pennsylvania, >- r-. ~ a: <: Ln >- Li._'Q cry 5S 0":'':...- tE~~: :r: u2;: u_ ~ c;.,...., 95::! "'."', , ".' N ~.., U' 5(/) CjO" I ~,., (Y'z " u' SE wZ '~-::r: ~ m~ ...... '"'" ::2 L,. e :::> " 0 <.> BY THE COURT: ~ ~~~ 6'( ^.o\ C </,'?- J, Distribution: George H. Kabusk, Esquire, Department of Transportation, Riverfront Office Center- 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 Gregory L. Cutler, Esquire, 50 East High Street, Carlisle, P A 17013 Y~M""~8;;WJ_ ,"~,..--,-" . I ,"e- -~ . COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION,: CUMBERLAND COUNTY, PENNSYLVANIA Respondent/Appellee v. CIVIL ACTION - LAW JEFFREY J. MILLER, Petitioner/Appellant NO. 01-2093 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of October, 2001, upon consideration of Appellant's Petition for Appeal from Order of Department of Transportation Suspending Operator's License, the suspension having been imposed pursuant to a notice from the Department dated March 9, 2001, and following a hearing held on this date at which the issue for determination by the Court was whether Appellant/Petitioner refused to submit to a chemical test to determine the alcoholic content of his blood, the Petitioner's appeal is denied, and the suspension imposed by the Department by notice dated March 9, 2001, is affirmed. By the Court, George H, Kabusk, Esquire Office of Chief Counsel 1101 South Front Street - 3rd Floor Harrisburg, PA 17104-2516 For the Respondent/Appellee ~? S,D\ V \0' Gregory L, Cutler, Esquire 50 East High Street Carlisle, PA 17013 For the Petitioner/Appellant pcb ~;j'~~l, __ .' -) ,1.~ 'C ' - " ,^ ~ , - 'I'" >'1 t o 0....,0'.. \"'1'''1)('' 10 I"'d >/iI'-,\f,il"j\0i\Ji\:1 1 i f\l.....,(..fl n~_ ;'n'-llr"I"1:~!'",r""\ i\::.. i~ I',) n' '-"", !'.".~~t--:h! Iv . (' 0" III r;., .I,J"'O' I,") ! \." 'L i\O '._ ~ AL~\;~!_C;-' .:::;u (J ~k' .~ """-"N@i,-<,...'.-c ',~. _,_, ~ ~'_~' -... ,.,.,-- "~_ ~~ ~,."~ '" ~ ,.., .. .."..', '- .', " "~_-"."":~l"I~~~.m-[_~~I;q:l!ll~~WJ.I,l'$)Ol"!!$"ftlt'!m:~~w-:~~m'~~~I!J>il!ll~~~'I'l'!R~~