HomeMy WebLinkAbout01-03209
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
RIVERFRONT OFFICE CENTER-THIRD FLOOR
nOI SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
TELEPHONE: (717) 787-2830
FAX: (717) 705-1122
July 26,2001
The Honorable J. Wesley Oler Jr.
Court of Common Pleas, Cumberland County
Cumberland County Courthouse
I Courthouse Square
Carlisle, P A 17013-3387
Re: Billy J. Ward v. Commw, ofPa., DOT, BDL, No. 01-3209, License Suspension
Appeal
Dear Judge Oler:
The above mentioned matter is scheduled for hearing on August 20, 2001 at 9:30 a.m. I
have a conflict on my schedule for that date and I am respectfully requesting that the matter be
continued to a later date. Mr, Hershey, the attorney for the petitioner, does not object to the
continuance.
I spoke to Ruth, your secretary, and Tammy, Mr. Hershey's secretary, and it was proposed
that the matter be set for hearing on October 10, 2001 at 9:30 a,m. Please find an proposed order
reflecting the same.
Sincerely,
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6~o~ge H.' abusk
Assistant Counsel
Enc. 1
cc: David E. Hershey, Esquire, 2233 North Front Street, Harrisburg, PA 17110
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CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYL VANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary ofthe Apellate Court to which the within matter has been appealed:
COMMONWEALTH COURT OF PENNSYLVANIA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA RAP. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
BILLY J. WARD
v.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
NO. 01-3209 CIVIL TERM
2404 CD 2002
The documents comprising the record have been numbered from No.1 to 76, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 11-21-02.
Curtis R. Long, Prothonotary
Jane H. Sparling, Dpty.
An additional copv of this certificate is enclosed. Please sil!:n and date cOPV, therebv
acknowledl!:inl!: receipt of this record.
Date
Signature & Title
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Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of
CUMBERLAND
2404 CD 2002
OJ-'3?nQ ('Tun
is contained the following:
in the Commonwealth of Pennsylvania
Term, 19
to No,
COpy OF
DOCKET ENTRY
COMPLRTF
BILLY J. WARD
v.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTTION
BUREAUJ OF DRIVER LICENSING
SEE ATTACHED CERTIFIED DOCKET ENTRIES.
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Commonwealth of Pennsylvania
County of Cumberland
} Ss:
Curtis R. Long
I, , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy ohhe whole record ohhe
Cilse therein stated, wherein
B1.11y J. Ward
In TESTIMONY WHEREOF I
this 21st'
Plaintiff, and
Comm of PA, Dept of Transp,
Bur of Dr Licensing
Defendant _, as the same remains of record
before the said Court at No. 01-3209 of
Civil Term, A.D. 19_.
have hereunto set my hand and affixed the se of said Court
day of ovember . 0.. 192002.
Prothonotary
I, Gel....." E. Hoffer President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
Curt is R. Lana , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, atthe time of so doing, and now is
Prothonotary in and for said County of Cumber] and in
the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as e h nd hat the said record,
certificate and attestation are in due form of law and made by th . fi r
Pres eot Judge
Commonwealth of Pennsylvania
County of Cumberland
} ss:
I. Curtis R. Long , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable C;pnrgp F. Hnffpr P.1 -
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is PresidentJudge ohhe Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere,
IN TESTIMONy WHEREOF, I have hereunto
set my hand and affixed the seal of id Court this
21st ,.." of No v AD, ~02 .
rothonotary
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PA-c;S NO.
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PYS510 Cumberland County Prothonotary's Office
Civil Case Inquiry
2001-03209 WARD BILLY J (vs) PENNSYLVANIA COMMON
Page
1
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . , , :
Time......", :
Execution Date
Jury Trial. ...
Dtsposed Date.
Hlgher Crt 1.:
Higher Crt 2.:
5/25/2001
12:56
0/00/0000
0/00/0000
2406 cb 2002
********************************************************************************
General Index Attorney Info
WARD BILLY J
6017 WERTZVILLE ROAD
ENOLA PA 17025
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
1101 SOUTH FRONT STREET
HARRISBURG PA 17104 2516
APPELLANT
HERSHEY DAVID E
APPELLEE
********************************************************************************
* Date Entries *
********************************************************************************
5/25/2001
6/04/2001
8/02/2001
10/n/2001
6/12/2002
6/27/2002
6/27/2002
9/27/2002
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
ORDER-OP-COURT-=-DATED-s/3%i-=-IN-RE-LICENSE-SUSPENSION-APPEAL-=-
A HEARING IS SET FOR 8/20/01 AT 9:30 AM IN CR 1 CUMBERLAND COUNTY
COURTHOUSE CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES
MAILED 6/4/01
-------------------------------------------------------------------
ORDER - DATED 8/2/01 - IN RE DEPT'S REQUEST FOR A CONTINUANCE AND
WITHOUT OBJECTION FROM THE PETITIONER THE HEARING IN THE ABOVE
REFERENCED MATTER IS CONlNUEDAlIDRBSCHEDULED FOR 10/10/01 AT 9:30
AM IN CR 1 IN THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE
COURT J WESLEY OLER JR J COPIES MAILED 8/2/01 .
-------------------------------------------------------------------
ORDER OF COURT - DATED 10/10/01 - IN RE PETITIONER'S LICENSE
SUSPENSION APPBAL IN THE ABOVE CAPTIONED MATTER - PURSU1\N'I' 'X'O AN
AGREEMENT OF COUNSEL I THE PERSON OF GEORGE KABUSK ESQ ON BEHALF
OF RESPONDENT AND DAVID E HERSHEY ESQ ON BEHALF OF
APPELLANT/PETITIONER THIS MATTER IS CONTINUED GENERALLY - THE
COURT WILL SCHEDULED A HEARING PROMPTLY AT THE RESQUEST OF EITHER
COUNSEL - BY THE COURT J WESLEY OLER JR J - BY THE COURT J WESLEY
OLER JR J COPIES MAILED 10/11/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 6/12/02 - IN RE PETITIONER'S LICENSE
SUSPENSION APPEAL BEFORE OLELR, J AND OPINION AND ORDER OF COURT
- AND FOR THE REASONS STATED IN THE ACCOMPANYING OPINION THE
APPEAL IS SUSTAINED TO THE EXTENI THAT THE PORTION OF THE
DEPARTMENT OF TRANSPORTATION'S 4 26/01 NOTICE REQUIRING PETITIONER
TO EQUIP HIS VEHICLES WITH IGNIT ON INTERLOCK SYSTEMS AS A
PREREQUISITY TO SCHEDULED RESORATION OF HIS DRIVING PRIVILEGE IS
RESCINDED - BY THE COURT J WESLEY OLER JR J COPIES MAILED 6/12/02
-------------------------------------------------------------------
MOTION TO RECONSIDER AND VACATE ORDER ISSUED JUNE 12, 2002 BY
GEORGE H KABUSK ATTY
-------------------------------------------------------------------
ORDER - DATED 6/27/02 - THE DEPARTMENT OF TRANSPORTATION MOTION TO
VACATE THE OPINION AND ORDER DATED 6/12/ IS GRANTED AND IT IS
HEREBY ORDERD THAT THE OPINION AND ORDER OF 6/12/02 IS VACATED AND
THE MATTER IS SCHEDULED FOR HEAERING ON 6/27/02 AT 2:30 PM - BY
THE COURT J WESLEY OLER JR J COPIES MAILEb 6/27/02
-------------------------------------------------------------------
ORDER OF COURT - DATED 6/27/02 - IN RE LICENSE SUSPENSION APPEAL -
THE RECORD IS DECLARED CLOSED - FOR REASONS STATED IN THE OPINION
OF THIS COURT - THE PETITIONER'S LICENSE SUSPENSION APPEAL IS
SUSTAINED TO THE EXTENT THAT THE PORTION OF THE DEPT OF
TRANSPORTION 4/26/01 NOTICE REQUIRING PETITIONER TO EQUIP HIS
VEHICLES WITH IGNtTION INTERLOCK SYSTEMS - RESTORATION OF HIS
DRIVING PRIVILEGE IS RESCINDED - BY THE COURT J WESLEY OLER JR J
COPIES MAILED 9/27/02
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PYS510 Cumberland County protlionotary's Office
Civil Case Inquiry
2001-03209 WARD BILLY J (vs) PENNSYLVANIA COMMON
Page
2
PAGE NO.
56 - 59 10/11/2002
60 - 61 10/16/2002
62 - 76 10/24/2002
76
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment....., .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
5/25/2001
12:56
0/00/0000
0/00/0000
2406 cb 2002
NOTICE OF APPEAL - TO COMMONWEALTH COURT OF PENNSYLVANIA - ON THE
ORDER OF 9/27/02 - BY TERRANCE M EDWARDS ESQ
-------------------------------------------------------------------
COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2406 CD 2002
---------------~---------------------------------------------------
TRANSCRIPT FILED
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
EXHIBIT AND BRIEF
********************************************************************************
* Escrow Information *
* Fees & Debits Beo Bal Pvmts/Adi End Bal *
*****************************************~******~*******************************
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
APPEAL
35.00
.50
5.00
5.00
30.00
35.00
.50
5.00
5.00
30.00
.00
.00
.00
.00
,00
------------
.00
75.50
75.50
********************************************************************************
* End of Case Information *
********************************************************************************
TRuE COPY FROM RECORD
In Testlmooywhereol, I here unto set my hand
and t of s&itl ~ at CarllSlll PI
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy J. Ward
v.
No. 2406 C.D, 2002
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES R, KELLEY, Senior Judge
Subrrritted: April 4, 2003
OPINION NOT REPORTED
MEMORA.NDUM OPINION
BY JUDGESIMPSON
FILED: May 14, 2003
The Department of Transportation, Bureau of Driver Licensing
(PennDOT) appeals the order of the Court of Common Pleas of Cumberland
County (trial court) sustaining Billy J. Ward's (Licensee) statutory appeal from
PennDOT's requirement that he equip all vehicles owned by him with an ignition
interlock device pursuant to 42 Pa, C.S. SS700l - 7003 (Interlock Act). The trial
court held that PennDOT did not have unilateral authority to impose the ignition
interlock device absent a corresponding court order. We affirm.
The facts presented are undisputed. Over the preceding twelve years,
Licensee was convicted of violating 75 Pa.C.S. S3731 (pertaining to driving under
the influence) on three occasions. Following the most recent conviction, in April
2001, the Cumberland County sentencing court did not order the installation of
ignition interlock devices on Licensee's vehicles; nevertheless, upon receiving
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notification of the conviction, PennDOT sent Licensee a notice, advising him to
"have all vehicle(s) owned by you equipped with an approved ignition interlock
system before your driving privilege can be restored. If you fail to comply with
this requirement, your driving privilege will remain suspended for another year,"
Reproduced Record (R,R.) at 56a, Licensee filed a statutory appeal with the trial
court.]
After a hearing, the trial court. rescinded the ignition interlock
requirement imposed by PennDOT, Relying on this Court's decision in Schneider
v. Dep't of Transp., Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth.
2002), the trial court concluded that PennDOT acted improperly when it imposed
the ignition interlock requirement absent a court order. PennDOT appeals to this
Court,2
PennDOT argues that the trial court erred as a matter of law in failing
to recognize its independent mandate under Section 7003 of the Interlock Act, 42
Pa. C,S. 97003/ to enforce the ignition interlock requirement even in the absence
] The trial court initially filed an order and opinion sustaining Licensee's appeal without a
hearing. However, following a motion by PennDOT, the trial court vacated its order and held a
hearing de novo.
2 Our review is limited to a determination of whether the trial court's findings of fact are
supported by competent evidence, whether errors of law have been committed, or whether the
trial court's determination demonstrates a manifest abuse of discretion. Mazza v. Department of
Transportation, Bureau of Driver Licensing, 692 A,2d 251 (Pa, Cmwlth. 1997).
J Section 7003 provides:
(Footnote continued on next page...)
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of a court order. Licensee contends Schneider and its progeny are controlling and
PennDOT has no independent mandate, In the alternative, he argues the Interlock
Act violates various provisions of the Pennsylvania Constitution.
Recently, this Court twice rejected PennDOT's argument. In
Watterson v. Dep't of Transp., Bureau of Driver Licensing, 816 A.2d 1225 (Pa.
Cmwlth, 2003), we held that Section 7003 of the Interlock Act did not give
(continued... )
In addition to any other requirements established for the restoration of a person's
operating privileges under 75 Pa.C.S, S 1548 (relating to requirements for driving under influence
offenders):
(I) Where a person's operating privileges are suspended for a second or subsequent
violation of 75 Pa.C.S. S3731 (relating to driving under influence of alcohol or controlled
substance), or a similar out-of-State offense, and the person seeks a restoration of operating
privileges, the court shall certify to the department that each motor vehicle owned by the person
has been equipped with an approved ignition interlock system.
(2) A person seeking restoration of operating privileges shall apply to the department for
an ignition interlock restricted license under 75 Pa,C,S, S1951(d) (relating to driver's license and
learner's permit) which will be clearly marked to restrict the person to operating only motor
vehicles equipped with an approved interlock ignition system.
(3) During the year immediately following restoration of the person's operating privilege
and thereafter until the person obtains an unrestricted license, the person shall not operate any
motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped
with an approved ignition interlock system.
(4) One year from the date of issuance of an ignition interlock restricted license under
this section, if otherwise eligible, a' person may apply for an additional replacement license under
75 Pa,C.S, S 1951(d) that does not contain the ignition interlock system restriction.
(5) A person whose operating privilege,is suspended for a second or subsequent violation
of75 Pa.C.S. S3731 or a similar out-of-State offense who does not apply for an ignition interlock
restricted license shall not be eligible to apply for the restoration of operating privileges for an
additional year after otherwise being eligible for restoration under paragraph (1),
42 Pa, C.S. S7003.
3
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PennDOT an independent mandate to order installation of an ignition interlock
system, concluding:
The ignition interlock requirement may only be imposed
by an order of the court of common pleas, Schneider.
The Department lacks the power to act pursuant to
Section 7003 absent a court order issued pursuant to
Section 7002, The Department lacked the power to
impose the interlock requirement in this matter because
the court of common pleas never entered an order that
would allow it to act. The Department's requirement is
void ab initio.
Watterson, 816 A.2d at 1228 (footnote omitted).
We rejected the same argument in Sloan v. Dep't of Transp., Bureau
of Driver Licensing, _ A,2d _ (Pa, Cmwlth., No, 429 C.D. 2002, filed April
11, 2003), stating:
[N]othing in [Section 7003] gives PennDOT any
authority whatsoever to do anything. All that it does is
require the court to certify to PennDOT that each vehicle
has been equipped with an interlock device if one has
been previously ordered. Under the Interlock Act, only
Section 7002 deals with who has the authority to impose
the interlock requirement, and that provision plainly vests
the authority and responsibility to impose the ignition
interlock device requirement upon a licensee who has
been convicted of multiple DUI offenses solely in the
trial court. Merely because the trial court has failed to
impose the ignition interlock requirement for any reason
does not somehow amend the Interlock Act to give
PennDOT the authority to impose such a sanction,
Moreover, PennDOT's interpretation of Section
7003 of the Interlock Act creates two problems: first,
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because the General Assembly deemed to make the
imposition of the interlock device part of the criminal
sentencing process, PennDOT's interpretation would
give PennDOT sentencing authority when administrative
agencies do not possess sentencing authority; second, it
would create the interesting anomaly that the trial court
would be required to certify to PennDOT that the
interlock ignition system was installed, making the
Courts of Common Pleas of this Commonwealth
PennDOT's compliance agency,
Sloan, _ A.2d at _; Slip Op. at 11.
Watterson and Sloan are controlling. Accordingly, we affirm the trial
court's order rescinding the ignition interlock requirement imposed by PennDOT,4
m
ROBERT SI
4 Because of our resolution of this issue was in favor of Licensee, we decline the
invitation to consider the merits of his constitutional challenge.
5
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy 1. Ward
v,
No, 2406 C,D, 2002
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Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
ORDER
AND NOW, this 14th day of May, 2003, the order of the Court of
Common Pleas of Cumberland County is AFFIRMED,
z0r)
ROBERT SI
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IN THE COMMONWEALTH COURT OF PENNSYL VANIA
Billy 1. Ward
v.
No. 2406 C.D. 2002
Commonwealth of Pennsylvania,
Department of Tr<;msportation,
Bureau of Driver Licensing,
Appellant
Subnritted:April4,2003
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON
FILED: May 14, 2003
The Department of Transportation, Bureau of Driver Licensing
(PennDOT) appeals the order of the Court of Common Pleas of Cumberland
County (trial court) sustaining Billy J. Ward's (Licensee) statutory appeal from
PennDOT's requirement that he equip all vehicles owned by him with an ignition
interlock device pursuant to 42 Pa. C.S. SS700l - 7003 (Interlock Act), The trial
court held that PennDOT did not have unilateral authority to impose the ignition
interlock device absent a corresponding court order. We affirm.
The facts presented are undisputed, Over the preceding twelve years,
Licensee was convicted of violating 75 Pa.C.S, S373l (pertaining to driving under
the influence) on three occasions. Following the most recent conviction, in April
200 l, the Cumberland County sentencing court did not order the installation of
ignition interlock devices on Licensee's vehicles; nevertheless, upon receiving
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notification of the conviction, PennDOT sent Licensee a notice, advising him to
"have all vehicle(s) owned by you equipped with an approved ignition interlock
system before your driving privilege can be restored. If you fail to comply with
this requirement, your driving privilege will remain suspended for another year,"
Reproduced Record (R.R.) at 56a. Licensee filed a statutory appeal with the trial
court.l
After a hearing, the trial court rescinded the ignition interlock
requirement imposed by PennDOT. Relying on this Court's decision in Schneider
v. Dep't of Transp., Bureau of Driver Licensing, 790 A.2d 363 (Pa, Cmwlth.
2002), the trial court concluded that PennDOT acted improperly when it imposed
the ignition interlock requirement absent a court order. PennDOT appeals to this
Court,2
PennDOT argues that the trial court erred as a matter of law in failing
to recognize its independent mandate under Section 7003 of the Interlock Act, 42
Pa. C.S. 97003,3 to enforce the ignition interlock requirement even in the absence
1 The trial court initially filed an order and opinion sustaining Licensee's appeal without a
hearing. However, following a motion by PennDOT, the trial court vacated its order and held a
hearing de novo.
2 Our review is limited to a determination of whether the trial court's findings of fact are
supported by competent evidence, whether errors of law have been committed, or whether the
trial court's determination demonstrates a manifest abuse of discretion. Mazza v. Department of
Transportation, Bureau of Driver Licensing, 692 A.2d 251 (Pa. Cmwlth, 1997).
3 Section 7003 provides:
(Footnote continued on next page...)
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of a court order. Licensee contends Schneider and its progeny are controlling and
PennDOT has no independent mandate, In the alternative, he argues the Interlock
Act violates various provisions of the Pennsylvania Constitution.
Recently, this Court twice rejected PennDOT's argument. In
Watterson v. Dep't of Transp.. Bureau of Driver Licensing, 816 A.2d 1225 (pa,
Cmwlth. 2003), we held that Section 7003 of the Interlock Act did not give
(continued.. .)
In addition to any other requirements established for the restoration of a person's
operating privileges under 75 Pa,C.S. S1548 (relating to requirements for driving under influence
offenders):
(1) Where a person's operating privileges are suspended for a second or subsequent
violation of 75 Pa.C.S. ~373l (relating to driving under influence of alcohol or controlled
substance), or a similar out-of-State offense, and the person seeks a restoration of operating
privileges, the court shall certify to the department that each motor vehicle owned by the person
has been equipped with an approved ignition interlock system.
(2) A person seeking restoration of operating privileges shall apply to the department for
an ignition interlock restricted license under 75 Pa,C,S, SI951(d) (relating to driver's license and
learner's permit) which will be clearly marked to restrict the person to operating only motor
vehicles equipped with an approved interlock ignition system.
(3) During the year immediately following restoration of the person's operating privilege
and thereafter until the person obtains an unrestricted license, the person si).all not operate any
motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped
with an approved ignition interlock system.
(4) One year from the date of issuance of an ignition interlock restricted license under
this section, if otherwise eligible, a person may apply for an additional replacement license under
75 Pa.C.S. SI951(d) that does not contain the ignition interlock system restriction.
(5) A person whose operating privilege is suspended for a second or subsequent violation
of75 Pa.C.S, S373l or a similar out-of-State offense who does not apply for an ignition interlock
restricted license shall not be eligible to apply for the restoration of operating privileges for an
additional year after otherwise being eligible for restoration under paragraph (1).
42 Pa, C,S. S7003.
3
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PennDOT an independent mandate to order installation of an ignition interlock
system, concluding:
The ignition interlock requirement may only be imposed
by an order of the court of common pleas, Schneider,
The Department lacks the power to act pursuant to
Section 7003 absent a court order issued pursuant to
Section 7002. The Department lacked the power to
impose the interlock requirement in this matter because
the court of common pleas never entered an order that
would allow it to act. The Department's requirement is
void ab initio,
Watterson, 816 A.2d at 1228 (footnote omitted).
We rejected the same argument in Sloan v. Dep't of Transp.. Bureau
of Driver Licensing, _ A.2d _ (Pa. Cmwlth., No, 429 C.D. 2002, filed April
11, 2003), stating:
[N]othing in [Section 7003] gives PennDOT any
authority whatsoever to do anything. All that it does is
require the court to certify to PennDOT that each vehicle
has been equipped with an interlock device if one has
been previously ordered. Under the Interlock Act, only
Section 7002 deals with who has the authority to impose
the interlock requirement, and that provision plainly vests
the authority and responsibility to impose the ignition
interlock device requirement upon a licensee who has
been convicted of multiple DUI offenses solely in the
trial court. Merely because the trial court has failed to
impose the ignition interlock requirement for any reason
does not somehow amend the Interlock Act to give
PennDOT the authority to impose such a sanction,
Moreover, PennDOT's interpretation of Section
7003 of the Interlock Act creates two problems: first,
4
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because the General Assembly deemed to make the
imposition of the interlock device part of the criminal
sentencing process, PennDOT's interpretation would
give PennDOT sentencing authority when administrative
agencies do not possess sentencing authority; second, it
would create the interesting anomaly that the trial court
would be required to certify to PennDOT that the
interlock ignition system was installed, making the
Courts of Common Pleas of this Commonwealth
PennDOT's compliance agency.
Sloan, _ A.2d at _; Slip Op. at 11.
Watterson and Sloan are controlling, Accordingly, we affirm the trial
court's order rescinding the ignition interlock requirement imposed by PennDOT.4
m
ROBERT SI
4 Because of our resolution of this issue was in favor of Licensee, we decline the
invitation to consider the merits of his constitutional challenge.
5
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy J. Ward
v.
No. 2406 C.D, 2002
Commonwealth of Pennsylvania,
Department of Transportation,
Bureau of Driver Licensing,
Appellant
-tfO{- jJ.09 ~
ORDER
AND NOW, this 14th day of May, 2003, the order of the Court of
Common Pleas of Cumberland County is AFFIRMED,
Certified from thp Q~~.
m
MAY 1 4 2003
and Ord8' LA>>
ROBERT 81
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CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
COMMONWEALTH COURT OF PENNSYL VANIA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA RAP, 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
BILLY J. WARD
v.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
NO. 01-3209 CIVIL TERM
M94 CD 2002
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The documents cOlhprising the record have been numbered from No. 1 to 76, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages cOlhprising the document.
The date on which the record has been transmitted to the Appellate Court is 11-21-02.
An additional COpy of this certificate is enclosed. Please sil!n and date COpy, thereby
acknowledl!inl! receipt of this record.
Date
Signature & Title
PAGE ro.
1 - 38
39
40
41
42 - 46
47 - 52
53
54-55
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PYS510 Cumberland County prot~onotary's Office
Civil Case Inqu~ry
2001-03209 WARD BILLY J (vs) PENNSYLVANIA COMMON
Page
1
Reference No.. :
Case Type, ,...: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . , :
Time......... :
Execution Date
Jury Trial. . , .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
5/25/2001
12:56
0/00/0000
0/00/0000
2406 CD 2002
********************************************************************************
General Index Attorney Info
~~ ~~~~~ViLLE ROAD APPELLANT HERSHEY DAVID E
ENOLA PA 17025
PENNSYLVANIA COMMONWEALTH OF APPELLEE
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
1101 SOUTH FRONT STREET
HARRISBURG PA 17104 2516
********************************************************************************
* Date Entries *
********************************************************************************
5/25/2001
6/04/2001
B/02/2001
10/11/2001
6/12/2002
6/27/2002
6/27/2002
9/27/2002
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-------------------------------------------------------------------
ORDER OF COURT - DATED 5/30/01 - IN RE LICENSE SUSPENSION APPEAL -
A HEARING IS SET FOR B/20/01 AT 9:30.AM IN CR 1 CUMBERLAND COUNTY
COURTHOUSE CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES
MAILED 6/4/01
-------------------------------------------------------------------
ORDER - DATED B/2/01 - IN RE DEPT'S REQUEST FOR A CONTINUANCE AND
WITHOUT OBJECTION FROM THE PETITIONER THE HEARING IN TH~ ABOVE
REFERENCED MATTER IS CONlNUED AND RESCHEDULED FOR 10/10/01 AT 9:30
AM IN CR 1 IN THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE
COURT J WESLEY OLER'JR;.J COPIES MAILED B/2/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 10/10/01 - IN RE PETITIONER'S LICENSE
SUSPENSION APPEAL IN THE ABOVE CAPTIONED MATTER - PURSUANT TO AN
AGREEMENT OF COUNSEL I THE PERSON OF GEORGE KABUSK ESQ ON BEHALF
OF RESPONDENT AND DAVID E HERSHEY ESQ ON BEHALF OF
APPELLANT/PETITIONER THIS MATTER IS CONTINUED GENERALLY - THE
COURT WILL SCHEDULED A HEARING PROMPTLY AT THE RESQUEST OF EITHER
COUNSEL - BY THE COURT J WESLEY OLER JR J - BY THE COURT J WESLEY
OLER JR J COPIES MAILED 10/11/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 6/12/02 - IN RE PETITIONER'S LICENSE
SUSPENSION APPEAL BEFORE OLELR, J AND OPINION AND ORDER OF COURT
- AND FOR THE REASONS STATED IN THE ACCOMPANYING OPINION THE
APPEAL IS SUSTAINED TO THE EXTENf TijAT THE PORTION OF THE
DEPARTMENT OF TRANSPORTATION'S 4 26/01 NOTICE REQUIRING PETITIONER
TO EQUIP HIS VEHICLES WITH IGNIT ON INTERLOCK SYSTEMS AS A
PREREQUISITY TO SCHEDULED RESORATION OF HIS DRIVING PRIVILEGE IS
RESCINDED - BY THE COURT J WESLEY OLER JR J COPIES MAILED 6/12/02
-------------------------------------------------------------------
MOTION TO RECONSIDER AND VACATE ORDER ISSUED JUNE 12, 2002 BY
GEORGE H KABUSK ATTY
-------------------------------------------------------------------
ORDER - DATED 6/27/02 - THE DEPARTMENT OF TRANSPORTATION MOTION TO
VACATE THE OPINtON AND ORDER DATED 6/12/ IS GRANTED AND IT IS
HEREBY ORDERD THAT THE OPINION AND ORDER OF 6/12/02 IS VACATED AND
THE MATTER IS SCHEDULED FOR HEAERING ON 6/27/02 AT 2:30 PM - BY
THE COURT J WESLEY OLER JR J COPIES MAILED 6/27/02
-------------------------------------------------------------------
ORDER OF COURT - DATED 6/27/02 - IN RE LICENSE SUSPENSION APPEAL -
THE RECORD IS DECLARED CLOSED - FOR REASONS STATED IN THE OPINION
OF THIS COURT - THE PETITIONER'S LICENSE SUSPENSION APPEAL IS
SUSTAINED TO THE EXTENT THAT THE PORTION OF THE DEPT OF
TRANSPORTION 4/26/01 NOTICE REQUIRING PETITIONER TO EQUIP HIS
VEHICLES WITH IGNtTION INTERLOCK SYSTEMS - RESTORATION OF HIS
DRIVING PRIVILEGE IS RESCINDED - BY THE COURT J WESLEY OLER JR J
COPIES MAILED 9/27/02
.
PAGE lID.
56 - 59
60 - 61
62 75
76
-"',
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"
~Umberland County proth6nota$;>s
Civil Case Inquiry
WARD BILLY J (vs) PENNSYLVANIA COMMON
Office
-- PYS510
2001-03209
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1,:
Higher Crt 2.:
_ '.'.r
".
Page
2
5/25/2001
12:56
0/00/0000
0/00/0000
2406 CD 2002
-------------------------------------------------------------------
10/11/2002 NOTICE OF APPEAL - TO COMMONWEALTH COURT OF PENNSYLVANIA - ON THE
ORDER OF 9/27/02 - BY TERRANCE M EDWARDS ESQ
-------------------------------------------------------------------
COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2406 CD 2002
-------------------------------------------------------------------
TRANSCRIPT FILED
- - - - - - - - - - - - - - LAST ENTRY
EXHIBIT AND BRIEF
********************************************************************************
* Escrow Information *
* Fees & Debits Beo Bal Pvmts/Adl End Bal *
*****************************************~**************************************
10/16/2002
10/24/2002
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
APPEAL
35,00
.50
5.00
5.00
30.00
35.00
.50
5.00
5.00
30.00
.00
.00
.00
.00
.00
------------
.00
75.50
75.50
********************************************************************************
* End of Case Information *
********************************************************************************
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Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of
to No.
COPY OF
CUMBERLAND
2404 CD 2002
01-3?QQ rnTTr
in the Commonwealth of Pennsylvania
Term, 19
is contained the following:
COMPLETE
DOCKET ENTRY
BILLY J. WARD
v.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTTION
BUREAUJ OF DRIVER LICENSING
SEE ATTACHED CERTIFIED DOCKET ENTRIES.
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Commonwealth of Pennsylvania
County of Cumberland
} ss:
I Curtis R. Long P h
, , rot onotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
c,ase therein stated, wherein
Bl.lly J. Ward
In TESTIMONY WHEREOF, I have
this 21st
Plaintiff, and
Comm of PA, Dept of Transp,
Bur of Dr Licensing
Defendant _, as the same remains of record
before the said Court at No. 01-3209 of
Civil Term, A.D. 19_,
hereunto set my hand and affixed the se of said Court
day of ovember , D.. 192002.
Prothonotary
I, r.-.rae E. Hoffer President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
Curtis R. Lona , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was,atthe time of so doing, and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as e h nd hat the said record,
certificate and attestation are in due form of law and made by th fi r
Pre, ent Judge
Commonwealth of Pennsylvania
County of Cumberland
} ss:
I, Curtis R. Long , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable C:;pnrgp F. _ Hnffpr P..1 .
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of id Court this
21st of No v A D. 1~02 .
rothonotary
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BILLY J, WARD
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. O/.3.20Q ~ J~
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING :
LICENSE SUSPENSION APPEAL
AND NOW, comes Petitioner, Billy J. Ward, by and through his attorneys, Mancke, Wagner,
Hershey & Tully, and makes the following averments in support of this License Suspension Appeal:
1. Petitioner, Billy J. Ward, is a Pennsylvania licensed driver with il residence addmss
of 6017 Wertzville Road, Cumberland County, Pennsylvania 17025.
2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver
Licensing, has a mailing address at Riverfront Office Center, Third Floor, 1 'I 0'1
South Front Street, Harrisburg, Dauphin County, Pennsylvania 17104-2:5'16.
3. petitioner received a notice of license suspension by way of letter dated A.pril 2€1,
2001 from the Department of Transportation indicating, in pertinent part, "as a result
of your conviction for driving under the influence, you are required by law to have
a/l vehicle(s) owned by you equipped with an approved ignition intet10ck system
before your driving privilege can be restored." Said notice is attached her,eto as
. Exhibit "A" and incorporated herein by reference.
4. The above-mentioned provision, as part of the Department's notice of April 26,
2001, is illegal, invalid, and improper for some or all of the following reasons:
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a, At the time of Petitioner's sentencing in Cumberland County, the trial court
did not order that each motor vehicle owned by the Petitioner be equipped
with an approved ignition interlock system. See Sentencing Order from The
Honorable Kevin A. Hess marked as Exhibit "B" attached hereto and
incorporated herein by reference.
b. The provisions of Act 63 of 2000 codified at 42 Pa.C.S. ~7001-7003 only
apply to persons convicted on or after September 30, 2000. The date of the
offense herein precedes September 30, 2000 to wit: the offense occurred
on August 25, 1999.
c. The provisions of Act 63 referenced above are unconstitutional in that lhe
Act violates Article III, ~ 1 of the Pennsylvania Constitution which providEl,
in pertinent part: "no law shall be passed except by Bill and no BiI! shall be
so altered or amended on its passage through either House as to change
its original purpose." Const.Art.lIl, ~1,
d, The provisions of Act 63 violate the Pennsylvania Constitution because no
Bill shall be passed containing more than one subject by including provisions
for restitution for identity theft along with ignition interlock requirements.
Canst. Art. III, ~3
e. The provisions of Act 63 are unconstitutional in that it violates Article III, ~4
of the Pennsylvania Constitution which provides, in pertinent part: "Every 8iJ/
shall be considered on three different days in each House..." Const.Art.lIl,
~4.
f. The provisions of Act 63 violates Petitioner's equal protection rights under
the State and Federal Constitutions by treating similarly situated persons
differently without a rational basis in that both registered owners and non-
registered owners of motor vehicles and non-owners of motor vehicles who
lease are subject to different penalties. Said unequal enforcement of the
law is not rationally related to the protection of the public from intoxicated
drivers.
g. The provisions of Act 63 violates the protection against ex post facto laws
by imposing punishment by increasing the penalties imposed on persons
who violated ~3731 of the Vehicle Code before the effective date of Act 63
and after the date the persons have been convicted of same.
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h. The provisions of Act 63 violates the Separation of Powers Doctrine as the
guardian interlock requirement is not analogous to the impDsition of costs
in a criminal proceeding, is not administrative in nature and interfere,s with
the sentencing power of the court as it requires the court to certify to the
executive branch (PennDOT) whether the ignition interlock systems have
been installed before Penn DOT will reinstate the operating privilege which
necessarily requires the court to investigate whether or not the device,s have
been installed.
i. The provisions of Act 63 violates due process because Penn DOT has no
authority or jurisdiction over vehicles owned by a defendant but not
registered and not operated on a public highway.
j, The provisions of Act 63 violates due process because the statute is va~lue
in failing to define ownership and is overbroad because, by its reach, it
punishes constitutionally protected activity, i.e. ownership of a non-
registered vehicle maintained andlor used solely on private property in
violation of Defendant's rights under Article I, 99 of the Pennsylvania
Constitution and the 5th Amendment of the United States Constitution.
5. Petitioner requests the court take judicial notice of Senate 8ill849 and all of its prior
forms prior to becoming Act 63 of 2000 including the legislative summary obtained
from the Pennsylvania State web3ite, \lIiww,legis.state.pa.us, in chronological o,der
beginning with the summary and printer numbers 952, 1225, 1814, 1918,2038, and
2059, all inclusive which are attached hereto, marked as Exhibit "C", Sind
incorporated herein by reference,
WHEREFORE, Petitioner prays that this Court declare that that portion of the Department's
notice of April 26, 2001 which reads: "as a result of your conviction for driving under the inf.'uencEl,
you are required by law to have all vehicle(s) owned by you equipped with an approve!'} ignition
interlock system before your driving privilege can be restored" be declared illegal, unconstitutional,
and stricken as part of the Department's notice and direct that the Department impose a flat CinE~
(1) year suspension for the conviction for driving under the influence.
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Respectfully submitted,
MANCKE WAGNER HERSHEY & TULLY
Date: OS/24/01
By
David E. Hershey,
1.0.#43092
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
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CERTIFICATE OF SERVICE
I, David E, Hershey, Esquire, of the law firm of MANCKE WAGNER HERSHEY 8, 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, by depositing a copy of same in the United States Mail,
postage prepaid, at Harrisburg, Pennsylvania, on th~Lfa\y of May, 2001, at the address listed
below:
Office of Chief Counsel
PA Department of Transportation
Riverfront Office Center, Third Floor
1101 South Front Street
Harrisburg, PA 17104-2516
By: /~
Davi~Hershey, Esquire
MANCKE WAGNER HERSHEY & TULLY
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VERIFICATION
I verify that the statements made in the foregoing
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:
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: APRIL 26, 2001
BILLY J WARD
6017 WERTZVILLE RD
ENOLA PA 17025
WID. 011096101528346 001
PROCESSING DATE 04/19/2001
DRIYER LICENSE. 21226197
DATE OF BIRTH 03/12/1955
LICENSE IN BUREAU
Dear MR. WARD:
This is an Official Notice of the Suspension of your Driving
Privilege as authorized by Section 15328 of the PennsYlvania
Vehicle Code. As a result of your 02/20/2001 conviction of
violating Sect'ion 3731 of the Vehicle Code DRIVING UNDER
INFLUENCE on 08/25/2000:
As a result of your conviction for driving under the
influence, you are required by law to have all vehicleCs)
owned by you equipped with an approved ignition interlock
system before your driving privilege can be restored. If yOU
fail to comply with this requirement, your driving privilege
will remain suspended for an additional year. You will
receive more information regarding this requirement
approximatelY 3D days before your eligibilty date.
. Your driving privilege is SUSPENDED for a period of 1
YEARCS) effective 10/27/2001 at 12:01 a.m.
****************************x~*******************~***k**~.*
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
I license will be suspended for 1 year. I
***********************************************************
This suspension is in addition to any other suspensions
already on your record.
AdditionallY, the Court of CUMBERLAND CTY, Court Number
2381, Court Term 2000 has sentenced yoU to serve a prison
term for this violation. Pursuant to Section 1541(a.l) of
the Vehicle Code, YOU will not receive credit for this
suspension/revocation any additional
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011096101528346
suspension/revocation until YOU complete your prison term.
The Court must certify your completion to PennDOT. You may
wish to contact your probation officer and/or the Court
after Your release to make sure that PennDOT is properly
notified.
Additionally, pursuant to Section 1548(d) of the Vehicle
Code, the Court of CUMBERLAND CTY , Court Number 2381, Court
Term 2000 has ordered YOU to attend a treatment program for
alcohol or drug "ddl.ction. As" re.5ulto.f the \,o.u.rt order,
this suspension/revocation shall remain in effect until the
Department is notified by the above Court that YOU have
successfully completed treatment and YOU are .otherwise
eligible for restoration of your driving privilege.
PROVIDING PROOF OF INSURANCE
Within the last 30 days of your suspension, we will send you
a letter asking that you provide proof of insurance at that
time. This letter will list acceptable documents and what
will be needed if YOU do not own a vehicle registered in
Pennsylvania.
Important: Please make sure that PennDOT is notified if yOU
move from your current address. You may notify PennDOT of
your address change by calling any of the phone numbers
listed at the end of this letter.
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, APRIL 26, 2001, of this letter. If you file an appeal
in the County Court~ the Court will give yOU a time-stamped
certified copy of the appeal. In order for your appeal to
be valid, yOU must send this time-stamped certified 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 OFFICIAL NOTICE OF SUSPENSION.
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Rebecca L. Bickley, Director
Bureau of Driver Licensing
IN STATE
OUT-OF-STATE
WEB SITE ADDRESS
INFORMATION 7:00 a.m. to 9:00 p.m.
1-800-932~4600 TDD IN STATE
717-391-6190 TDD OUT-OF-STATE
www.dot.state.pa.us
1-800-228-0676
717-391-6191
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COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
v
CUMBERLAND COUNTY, PENNSYLVANIA
00-2381 CRIMINAL TERM
CHARGE: (2)DUI
BILLY J. WARD
OTN: L070609-0
AFFIANT: PTL. ROBERT RESSLER
IN RE: SENTENCING & PAROLE
ORDER OF COURT
AND NOW, this lOth day of April, 2001, the defendant,
Billy J. Ward, having previously appeared in open court and
tendered a plea, and now appearing for sentence together with
private counsel, David Hershey, Esquire, the court being in
receipt of a DUI report,
Sentence of the court is that the defendant pay the
costs of prosecution, a fine of $300.00, together with a CAT
Fund surcharge of $100.00, and an EMS assessment of $10.00, and
undergo imprisonment in the Cumberland County Prison for a
period of not less than thirty day~ nor more than twenty-three
months. Service of his sentence at the Dauphin County Work
Release Center is authorized. The defendant to self-commit
there on Wednesday, April 11, 2001, at 9:00 a,m~
The defendant will h~ paroled at the expiration of
his minimum ter~ without further order of court on condition
-
that he shall have behaved himself well in the interim.
In the event that the defendant violates the rules of
the Dauphin County Work Release Program, his service of the
sentence in Dauphin County will be terminated, and the defendant
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remainder of his sentence. ~
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to be transported to the C
EXHIBIT
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COMMONWEALTH V. BILLY J. WARD
Prior to obtaining the defendant's operating
privileges, he must pay all court imposed fines and costs and
must pay for and successfully complete an alcohol treatment
program. As noted, work release is authorized in this case.
By the Court,
Daniel Sodus, Esquire
Assistant District Attorney
David Hershey,'Esquire
For the Defendant
probation
Dauphin County Work Release Center
Victim Services
Sheriff
CCP
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SB B4~ 'By Sen~tors GREENe, 0' PAKE. HART. SOSCOLA, COSTA, HOll C)J86 INS .
SAl If A TORE, SCHWp.RTZ and SlOCUfl.
PriOr' Printer's Nos, 952, 1225. 1814, 1918. 2038.
Printer's ';oJ. 2059.
An Act amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, providing for the use of ignit~on
interlock systems and for restitution for identity theft,
Referred to JUDICIARY, April 27, 1999
Reported as committed, May 11, 1999
First consideration, May 11, 1999
Second consideration, June 8, 1999
Amended on third consideration. June 14, 1999
Third consideration and final passage. June 15, 1999 (50-0)
(Remarks see Senate Journal Page 694). June 15, 1999
In the House
Referred to JUDICIARY, June 21, 1999
Reported as amended, March 21, 2000
'First consideration, March 21,.2000
laid on the table, March 21, 2000
Removed from table, April 17,2000
Second consideration, Apr.il 17. 2000
Re-referred to APPROPRIATIONS, April 17, 2000
Re-reported as'committed, May.l, 2000
Third consideration, with amendments, May 2, 2000
Final passage, May 2, 2000 (197-0)
(Remarks see House Journal Page 883), May 2. 2000
In the Senate
Referred to RULES AND EXECUTIVE NOMINATIONS, May 3. 2000
Re-reported on concurrence, as amended, June 12. 2000
Re-committed to RULES AND EXECUTIVE NOMINATIONS, June 13, 2000
Re-reported on concurrence, as amended, June 13, 2000
Senate concurred in House amendments, as amended by the Senate, June
13, 2000 (49-0)
,
,
In the House
Referred to RULES, June, 13, 2000
Re-reported on concurrence, as committed, June 13, 2000
House concurred in Senate amendments to House amendments, June 13, 2000
(189- 1)
(Remarks see House Journal), June 13, 2000
Signed in Senate, June 14. 2000
Signed in House. 'June 14, 2000
In hands of the Governor, June 14, 2000
last day for action, June 24. 2000
Approved by the Governor, June 22, 2000
Act No. 63
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OPRIKTE>P.'S NO. 952
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
849'
No.
Session of
1999
INTRODUCED BY GREENLEAF, O'PAKE, HART, BOSCOLA, COSTA, HOLL,
ROBBINS, SALVATORE, SCHWARTZ AND SLOCUM, APRIL 27, 1999
REFERRED TO JUDICIARY, APRIL 27, 1999
AN ACT
1 Amending Title 18 {Crimes and Offenses} of the Pennsylvania
2 Consolidated Sbatutes, providing for the offense of theft of
3 identity,.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1, Title 18 of the Pennsylvania Consolidated
7 Statutes is amended by adding a section to read:
8 S 4104.1, Theft of identity,
9 (a) Offense defined. --A person commits an offense if he
10 knowinqlY and with intent to defraud, obtains, possesses,
11 records, transfers, uses or attempts to obtain, record, transfer
12 or use the oersonal identifYinq information of another oerson
13 without the consent of that other person.
14 (b) Gradinq.--A first Dffense under this section is a
15 misdemeanor of the first degree and a second and subseauent
16 offense under this section is a felony of the third degree.
17 (c) Definition. --As used in this section, the term "personal
18 identifying information" includes, but is not limited to:
/3
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. Nam!:> 0
1 11)
2 (2 ) Birth date.
3 (3 ) Address.
4 (4) Telephone number.
5 ( 5) Social Security number.
6 ( 6) Driver's license number.
7 (7) Checkinq account number.
8 (8 ) Savinqs account number.
9 ( 9) Mother's maiden name.
10 (10) Debit card number.
11 (11) Personal identification number.
12 (12) Electronic identification number.
13 (13) Any other number or information that can be used to
14 access a person's f.inancial resources.
15 Section 2. This act shall take effect in 60 days.
C30L18DMS/19990S0849B0952
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9RIOR,PRINTER
NO, 952
PRINTER'S NO. 1225
THE GENERAL ASSEMBLY OF PENNSYLVANIA
No.
Session of
1999
INTRODUCED BY GREENLEAF, O'PAKE, HART, BOSCOLA, COSTA, HOLL,
ROBBINS, SALVATORE, SCHWARTZ AND SLOCUM, APRIL 27, 1999
AS AMENDED ON THIRD CONSIDERATION, JUNE 14, 1999
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, providing for the offense of theft of
3 identity;
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 18 of the Pennsylvania Consolidated
7 Statutes is amended by adding a section to read:
8 S 4104,1. Theft of identity,
9 la) Offense defined.--A person commits an offense if he
10 knowingly and with intent to defraud, obtains, possesses,
11 records, transfers, uses or attempts to obtain, record, transfer
12 or use the personal identifvinq information of another person
13 without the consent of that other person.
14
Ib) Grodi3q. ~ :irot ~::e3oc ~ndc~ thio ocction ic 3
<-
15 miodcmconor 0: the firct deq~c- ond 0 sccond o~j cuboc~~c~t
16 of:enoc under ~hio ocetion ij 3 :elony 0: ~hc ~hird dcqree.
17 (B) GRADING.--A FIRST OFFENSE UNDER THIS SECTION IS A FELONY <--
18 OF THE THIRD DEGREE .~D A SECOND AND SUBSEQUENT OFFENSE U}illER
It)
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1 THIS SECTION IS A FELONY OF THE SECOND DEGREE,
2 (1) IN ADDITION ANY PENALTY IMPOSED HEREIN, A PERSON WHO
3 VIOLATES THIS SECTION SHALL BE ORDERED BY THE COURT TO PAY
4 RESTITUTION TO THE VICTIM PURSUANT TO SECTION 1106 (RELATING
5 TO RESTITUTION FOR INJURIES TO PERSON OR PROPERTY) .
6
(2) IN PROSECUTIONS ,UNDER SUBSECTION (A), IF THE
7 OFFENDER POSSESSES IDENTIFYING INFORMATION OF MORE THAN ONE
8 PERSON, THE IDENTIFYING INFORMATION RELATING TO EACH PERSON
9 SHALL BE CONSIDERED A SEPARATE OFFENSE.
10
(3) WHERE A PERSON COMMITS AN OFFENSE UNDER SUBSECTION
11 (A) AND THE VICTIM OF THE OFFENSE IS 60 YEARS OF AGE OR
12 OLDER, THE GRADING OF THE OFFENSE SHALL BE ONE GRADE HIGHER
13 THP~ SPECIFIED HEREIN.
14 (C) CONCURRENT JURISDICTION TO PROSECUTE.--IN ADDITION TO
15 THE AUTHORITY CONFERRED UPON THE ATTORNEY GENERAL BY THE ACT OF
16 OCTOBER 15, 1980 (P,L.950, NO.164), KNOWN .ll.S THE COMMONWEll.LTH
17 ATTORNEYS ACT, THE ATTORNEY GENERAL SF~L HAVE THE AUTHORITY TO
18 INVESTIGATE AND TO INSTITUTE CRIMINAL PROCEEDINGS FOR ANY
19 VIOLATION OF THIS SECTION OR ANY SERIES OF SUCH VIOLATIONS
20 INVOLVING MORE THAN ONE COUNTY OF THIS COMMONWEALTH ~~D/OR
21 ANOTHER STATE, NO PERSON CHARGED WITH A VIOLATION OF THIS
22 SECTION BY THE ATTORNEY GENERAL SHP.~L HF~E STfu~ING TO CF~LLENGE
,.!,
23 THE AUTHORITY OF THE ATTORNEY GENERll.L TO INVESTIGATE OR
24 PROSECUTE THE CASE, AND, IF ANY SUCH CF~.LLENGE IS MADE, THE
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25 CHALLENGE SHALL BE DISMISSED AND NO RELIEF SPALL BE MADE
26 AVAILABLE IN THE COURTS OF THIS COMMONWE]l~TH TO THE PERSON
27 MAKING THE CHALLENGE.
28 . +e+ (D) Definition. --As used in this section, the term
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29 Iloersonal identifying information" iTIcludes, but is not limited
30 to:
19990S0849B1225
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(2) Birth date.
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2
3
(3) Address.
4
(4) Telephone number.
5
(5) Social Security number.
(6) Driver's license number.
6
7
(7) Checking account number.
8
(8) Savings account number.
9
(9) Mother's maiden name.
10
(10) Debit card number.
11
(11) Personal identification number.
12
(12) Electronic identification number.
13
(13) Anv other number or information that can be used to
14 access a person's financial resources.
15 section 2, This act shall take effect in 60 days.
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C3JL18DMS/19990S084931225
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^ HOUSE A}i~NDED '
PRIOR PR~NTER'S ~S, 952, 1225
Qr'N':'::R'S NO, 1814
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
849'
No.
Session of
1999
INTRODUCED BY GREENLEAF, O'PAKE, HART, BOSCOLA, COSTA, HOLL,
ROBBINS, SALVATORE, SCHWARTZ AND SLOCUM, APRIL 27, 1999
AS REPORTED FROM COMMITTEE ON Ju~ICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, ~RCH 21, 2000
AN .a.CT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statu~es, providing for t~c offc~cc of theft of <--
3 idcnti ty. RESTITUTION FOR IDENTITY THEFT. <--
4 The General Assembly of the Commonwealth of pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 18 of the pennsylvania Consolidated
7 Statutes is amended by adding a section to read:
8 3 110~.1. ~hc=~ of i~cn~ity.
<--
9 (al Offen~c iefined. ~ pereon eommit3 an offc~oe if he
10 ]mO\.ing~ y und \lith :.ntent to dcf::-aud, obt3.' r.c, pccce3CC~,
It
11 rcccrd~, tr~~o~cr01 U~C8 or ~~~~~C~~ tc c~t~:n, ~~=~==I tr~~=:2~
12 se e ~e "'e=sefla1 :'de.":':. f'r" n- :'~fc"'m",t:'~n :Jf .::lnc::l::e::: "creon
or u _u ~ ~., - - ,-_ ~ ~
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13 without thc concent of that :Jt~c= pc::-oon.
14 (bl Cradinq. ~ f:'rct of:en~c ~nde::: t~:'e occt~en ~o a felony
15 of the third dcq::-cc and a cceond end cubccouent effcn3c ~nde::-
16 ::hio eeetion i~ :I felony of the oecend dcqrcc.
17
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4
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In prooceutiono under ouboeetion (a), if the
of::e:1der poooeGGeo identi~vinq 'nform~t'on G~ more th~:l one
5
6
pe~oon, the ident'::yinq informo.t'otJ. relatiREf to e:::.eh pcroon
oh~~~ be oonoidorcd 0. oeparate offonGe.
7
8
(3 )
~'lhere a !JorGon eommi to an o~::C:1oe ;,onder Guboection
la) and the vietim of the offe~ce iG CO 'iearG of ~go or
older, the grading of the offenQe Gha1l be ORC grade t'qher
11 than o!Jcc~=icd hc~cin.
9
10
12
(e)
Coneurrent iuriodiction to proseeute. I~ additien to
13 the aut!:orit./ cenferred upon the .^.tto::-nc,. Cener"-l by the aot ef'
14
Oetebe::- IS', "980 rp , 958 'I ' r,), ~"
'" ,.~. " o. ~V. , .mo'.1n nc cue 2cffifficI1'.;e:ll th
15
l'..ttor::cY:J .?'..ct, :hc 7'_t~o::-:1cy CC:lcrc..' .Jh.:..l: ::.::~:c :h.:. .:....;,::.ho::-.: ::.~; ::'0
16
inveGt.'-ati:: and to i-.Gr'"""e --, 'n' -- ---~' -
,., .. __C _C c_ ~ffi~._E:_ p_o____~ng::; =:J~ ~:'..;
viola:' on of thic ooetion or any oor'eG of 3uch vio~:::.tionD
17
18
~ -o'cr -o-e ....'1.-__ o-e -e"-~'. e.r:: ....t...~ 8 ""~mm~ .. -, ~'\... .:J I
;'..-.- ",-.-i~ m ~ ___~.. .. _ -"CI ~ coo cc.. ,,,R,,e~~"u ~n_,'or
19
ancthc~ etate. No perDon oharqcd ~ith :::. 7~e'atieR 0: th~=
20
oeotion by tte .^.t~orr.o", Ccnercl aha' ~ ha-.-c ctaF.i':'nq ':0 :::a" cnqc
the :l;].tho~i ty of ':he .'.ttcrnc'/ Ce:1e~3.~ to ':,_-.-cGtigate or
21
22 proDccu:::: ~hc c:t::c I ~nd, ~::: .J.ny DU::~ ch:J.2."\ ::::qc :..c ::'.c.d:c I ~::c
23 challe~qc oh~~l be diom~oood and co re'ie= 3h:ll~ be ~3.dc
24 availab~e in ':he :ourto of thiG 2cffiffiom.e~~t:: to ~hc Dercon
25 maJ,inq t:-.c ct3.llcnge,
26
(d)
~Cf~::~t~=3. ~8 ~DCj in thiD oc=t:..;::~, ~~.:. ::.==~ "~===~~:J.:
27 ide~t'=.,.inq i~::o~~at~on" iceludco, but io cot lim'':cd to.
28
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29
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19990S0849B1814
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~e~honc numbc~.
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2
(~) ::oci0.1 ::ceurit:, :lumbcr,
3
(~) ::~iYer'o liecnoc number.
4
(7) Cr_ecJ:inq acccunt n"..lmber.
5
(8) So.vinqc account number.
(9) f1otRer' c maiden :1ume.
6
7
(10) ::cbit curd n"..lmbcr.
8
(11) rcroonal identi::ieation :1"..lmbe~.
9
(12) Zlcctronic idcnti::ico.tic:1 numbe~.
(13) .^~"y ether, numbc~ o~ ':l::e~maticn th::t e:ln be ;,:oc:1 to
10
11 ~ccc~o ~ pc-conlo ~inanci~l rC80~===O.
12 Section 2. TRio act cRall talce e::::eet _. ~O :1o.j"o.
13 ~ 4120, RESTITUTION FOR IDENTITY THEFT,
<-
14 (A) GENERF.L RULE.--THE COURT MAY, IN ADDITION TO ANY OTHER
15 RESTITUTION SENTENCE OR ORDER AUTHORIZED BY LAW, SENTENCE A
16 PERSON CONVICTED OF THE OFFENSE OF IDENTITY THEFT OF &~OTHER
17 PERSON TO MAKE RESTITUTION FOR ALL REASONABLE EXPENSES INCURRED
18 BY THE VICTIM OR ON THE VICTIM'S BER~LF:
19
(1) TO INVESTIGATE THEFT OF THE VICTIM'S IDENTITY;
20
(2) TO BRING OR DEFEND CIVIL OR CRIMINAL ACTIONS RELATED
21 TO THEFT OF THE VICTIM'S IDENTITY; OR
22
(3) TO.TAKE OTHER EFFORTS TO CORRECT THE VICTIM'S CREDIT
23 RECORD OR NEGATIVE CREDIT REPORTS RELATED TO THEFT OF THE
24 VICTIM'S IDENTITY.
25 (B) TYPES OF EXPENSES,--THE TYPES OF EXPENSES THF.T MAY BE
26 RECOVERABLE UNDER THIS SECTION INCLUDE, BUT ARE NOT LIMITRD TO:
27
(1) ATTORNEY FEES;
28
(2) FEES AND COSTS IMPOSED BY CREDIT BUREAUS, ASSOCTATED
29 WITH EFFORTS TO CORRECT THE VICTIM'S CREDIT RECORD OR
30 ~NCURRED I~ PRIVATE INVESTIGATIONS; AND
19990S0349B1814
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1 (3) C::JUcr:OSTS AND FILING FEES; 0 '
2 REGARDLESS OF WHE~~ER THE EXPENSES ARE CHARGED OR BILLED TO THE
3 VICTIM OR fu~Y PERSON ACTING ON THE VICTIM'S BEHALF OR AS THE
4 VICTIM'S REPRESENTATIVE AND REGARDLESS OF WHETHER ANY SUCH
5 EXPENSE HAS BEEN PAID.
6 SECTION 2. THIS ACT SHALL TAKE EFF?CT IN 60 DAYS.
C30L18DMS/19990S0849B1814
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HOUSE JI.MENDED
952, 1225, 1814
o
PRIOR PRINTER'S NOS.
PRINTER'S NO. 1 91 8
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
849
No.
Session of
1999
INTRODUCED BY GREENLEAF, O'PAKE, HART, BOSCOLA, COSTA, HOLL,
ROBBINS, SALVATORE, SCHWARTZ AND SLOCUM, APRIL 27, 1999
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
,
MAY 2, 2000
AN ACT
1 Amending Tit'le l~ (Crime:] iJ.:ld Off':::-.3.::n) 42 (JUDICIARY AND <-
2 JUDICIAL PROCEDURE) of the Pennsylvania Consolidated
3 Statutes, providing for th.:: off.::;oc of tho:t .::f identity. <-
4 RESTITUTION FOR IDENTITY THEFT. <-
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7
Section 1. Title ~ 42 of the Pennsylvania Consolidated
<-
8 Statutes is amended by adding a section to read:
9 S 1101.1. Thcft.::: identi t.,.
<-
10 (a) O::.::noc d.:::incd. ~ Bcroo~ .::cmmita an :J::.::~ce i: he
11 ;(r.c',li~~q:'...: .::~.d .,;' t\". intc:-.t tc dc:r,,-'.;.;i, ::;:;t::' :-..::, ':;C3'::::::::C3,
12 recorda, ~~~~Df~~:1 U8C8 O~ ~~~~~~~= t~ cbt~:~1 ~-c~r=, tr~h~~2~
13 or uoc thc Bc::-oon,,-l idcnt' :.:i:'lq in =orm.::t' on 0: "-!lothe::- pC17:;on
14 without tho connont of that otbe::- D'::::-OOC.
15 (hi Gradinq. ~ firot :]:fc~oe ~cdc::- thi:l .::.::etion i3 a -:::'..ony
16 of the thi::-d dcqr.::.:: 3:ld a :lccond and ouboeauc:lt o::cn3C ~nder
17 thio Oc.::t'3n io .:: :.::lonv 0: t~c 3c.::ond d.::qrce.
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o==tion oh~:: tc or~=~~d ~'.' ~~..e
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rC3t' tU::~OR to the -.-ictiffi DurOU'::!lt to 3ee:' .OR 110C ' , .
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to reotit~tion :cr iRi~r~en to ~ercon '
_ _ or ::'::OBCJ.:t-/ I .
5
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:~ orooc=J~~on: ~Bdc~ ~"~~~~~~o.-. '=' ~~ ~,-
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6 offc~dcr Dooo.::o.::eo idcnt~:yiBq in:c~mat'e~ of more tha~ one
7
pcr30n,
l-1-.c'':dC::1l::':'=U'':f:Ef:i:-.c ...... ,.
-.. - . --1-' u_arrna_lO:-. rc_at:.~q to c.::ch pcroon
8 3hall be cO!l:Jidered c oepc::-ate o:~en.::e.
9
(J;
11 olde::-, tc.:: cradinq 0: the 3:~O:lOC c~cll ~.:: ORe qrcdc h'qhcr
12 then cpcci:~.::d h.::r::in,
13
(e)
~~r.:::~~~2~t ~~~~odi=t~cn ~o P~~=ccut=.
--
.J.d~.:..t:ion to
14 thc aut::o:-' t-;' cor::.::r'-cd '';'PC:1 tr.e ."..tt cr~C': Ge:-..::ra' by t~c .::ct o~
15 Octobc::- :::. :':2~ ~:',:'.~S~I ~;c.1C'~;f :::-.::",:n:1.: =r_:: C:::mrF.c::',:2:t2.';:.h
16 }J.ttorncy:: :'.:::t, ';:.2:: _'!\~t':or::':'/ ::::nc::c..2. :1-.:..' 1 h:.-::: t3.C ':"L:t;-..c,:": ty t:.J
17
in"v~c:Jt:..::;-.:.=:: .::.:::c. :'.J :::.:;t:..t"..:t::: ~r":ffi':-a' e~~eee~"':':f3:: .c -- -
__ ~.. _.. _ _ ___. qo _0_ a!l}.
yiolat~on c: t~'c ccction cr ~BY o.::ri-c o~ c~ch 7iolatioBo
18
19
~ ""0' -EfO - .......... ~fl -fle e~"""+-'" at:: ...l,....:,..... , .....'t.. el'
~=..v- ::t:..y-.:...... ::; ~...... '-'u..... _ '-'~ ................... f ..... _u.....: ......,:)ffiffiCn.';C:l..... .........1. ::.::-. I :Jr
20 anotho::- ot.:::c, ~o D=roon .::h.::r~.::d ~'th c vio'=t'on of :~i.::
21
occticn ~y ~~2 ~~~~=~::'l C23==~' ~ha~1
......:l.He s"'"a-..::l':fiq \::- ~'\....~ -" e-E::fe
.~ v _ ~~............ '" ...................... ......
22 tho a~tl:c:-' t.; ::: tl:.:: .'.ttor~.c( C;C:l'::::-~' to ir.-:.::otiqa:.:: c::-
23 proocc~t:: t~:: '::=0'::, a~d, ': ,,-cy .::~cl: c~~l:=~oo '0 ~Qdc, t~=
24 ch~ll::~q:: ~2:l.:: t:: ~'::ffi':=~::~ :l.ni C2 =='.:..~: :2::':~ ~c m~~::
25 a'_'o.ilab~.:: i~ th.:: .::ourt3 0: t~i3 CGffiffic:-.-.;ca:t~ t.:: the Deroo:J.
26 maJdnq tr.':: .::ta:::'.:::::qc.
27
(d)
=c~':~i~ion. ~~ ~~C~ ~~ t~i~ :==t':o~, ~hc ~::=~ lrC::~.80n:l.~
28 ide:lti:....ino ~:-.:0::-:tlati3n" i:lC~'.;.jeo. b~t ic :lO:: ~imit.::d to.
29
~ :)
~;::'F:1-~ .
30
'''"''
J:=~:--~ ::.::.~:::.
19990S0849Bl913
- 2 -
d-~
,
,
1
r-.\
,-"
'aC--
.~ ' -..., .
2
(:'
':'~:2p;:_onc ~_UlT:tbC::-.
3
~::) Socia.' CCC'..1::': ::; :J.'J.mcc.r.
4
te) ~r~,er'3 liccnoc number,
5
(7; Chc::::J,inq aCCOU:11: num13er.
6
(8) Sav'nqs account numbcr,
7
(9; HC':::t,::::'o ffi-J.idc:: n.:::.mc.
8
(10) D.::bit card numbcr,
9
(11) P::r:Jofio.l identi:; cation ::lUmber,
10
(I:) E:'..::ct::-onie idecti:icat'o~ numb::::-,
11
~ 12) ?~-:'1~ ~ thc:e nuFf1bc:: or in:: ::::m.J.t L::: t::.J. t '::.J.R Be ~DC::: ~o
12 aeC030 :J per:Jon' 0 financial re3our::eo,
13 Section 2, ,",hi::; act oha:'..l ta],e ::=:eet in CO dayo,
14 ~ ~ 9720,1, RESTITUTION F.oR IDENTITY THEFT,
<-
15 (A) GENERAL RULE,--THE COURT MAY, IN ADDITION T.o .~Y OTHER
16 RESTITUTION SENTENCE OR ORDER AUTHORIZED BY LAW, SENTENCE A
17 PERSON CONVICTED OF THE OFFENSE .oF IDENTITY THEFT OF ~~OTHER
18 PERSON TO MAKE RESTITUTION FOR ALL REASONABLE EXPENSES INCURRED
19 BY THE VICTIM OR ON THE VICTIM'S BEF~.LF:
20
~,
(1) T.o INVESTIGATE THEFT .oF THE VICTIM'S IDENTITY;
21
(2) TO BRING OR DEFEND CIVIL OR CRIMINAL ACTIONS RELJI~ED
22 T.o THEFT OF THE VICTIM'S IDENTITY; .oR
23
(3) TO TAKE OTHER EFFORTS T.o CORRECT THE VICTIM'S CREDIT
24 RECORD OR NEGATIVE CREDIT REPORTS RELATED T.o THEFT OF THE
25 VICTIM'S IDENTITY,
28
(1) ATTORNEY FEES;
29
(2) FEES .~~D COSTS IMPOSED BY CREDIT BUREAUS, ASSOCIATED
30 'liE:! EFFORTS T.o CORRECT T=:" '/ICTIf'!' S CREDIT RECORD .oR
1999080849B1918
- 3 -
~l(
-".
--
~~~
".~"-I
, ,~, ,.~ ~~ "c' ,,'~." 0
1
2
3
4
5
6
7
INCURRED IN ~VATE INVESTIGATIONS; AND ~
(3) COURT COSTS AND FILING FEES;
REGARDLESS OF whETHER THE EXPENSES ARE CHARGED OR BILLED TO THE
VICTIM OR ANY PERSON ACTING ON THE VICTIM'S BEHALF OR AS THE
VICTIM'S REPRESENTATIVE AND REGARDLESS OF WHETHER JlBY SUCH
EXPENSE HAS BEEN PAID.
SECTION 2. THIS ACT SHALL TAKE EFFECT IN 60 DAYS,
C30L13DMS/19990S084931918
- 4 -
17.Jnl!""l
-
~-,' - ;';;';';",,;,
.7,
dE)
-.'
P]{IOR
19:1.8
, , , ,., ~'," --~
PRINTER'S NOS, 952, 1225, 18.14" ?P.:NTER'S NO,
TH~ENERAL ASSEMBLY OF PENNS!VANIA
-~'" .-- ,..i..
LU,jt5
SENATE BILL
849.
No.
Session of
1999
INTRODUCED BY GREENLEAF, O'PAKE, K~T, BOSCOLA, COSTA, HOLL,
ROBBINS, SALVATORE, SCHWARTZ JI~D SLOCUM, APRIL 27, 1999
SENATE AMENDMENTS TO HOUSE AMENDMENTS, JUNE 12, 2000
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for restitution
3 for identity theft AND FOR THE USE OF IGNITION INTERLOCK <--
4 SYSTEMS " '
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Title 42 of the Pennsylvania Consolidated
8 Statutes is amended by adding a section to read:
9 ~ 9720.1, Restitution for identitv theft.
10 (al General rule,--The court mav, in addition to any other
11 restitution sentence or order authorized by law, sentence a
12
person convicted of tt2
o~~c~=c o~ id==~.:..~~
,-'l..,~=,-
'-~.--- ~
of anottc::-
<-
13 peroen A VIOLATION OF 18 PA,C,S, ~ 4120 (RELA~ING TO IDENT=~Y <--
14 THEFT) to make restitution for all reasonable expenses incurred
15 by the victim or on the victim's beha:'..f:
17
(1) to investiqate theft of the victim's identity;
(2) to brinq or defend c'vil or criminal actions related
16
18 to theft of the victim's identity; or
"
.~
^-', --",~'.. ~-- ..--
~":>..-J.>;
1
'(3) to
ke other efforts to correc
he victimfs credit
2 record or neqati"e credit reoo~ts related to theft of the
3 victim's identity.
4 (b) Types of exoenses,--The types of exoenses that may be
5 recoverable under this section include, but are not limited to:
6
7
(1) attorney fees;
(2) fees and costs imposed by credit bureaus, associated
8 with efforts to correct the victim's credit record or
9 incurred in private investiqations; and
10
(3) court costs and filinq fees,
11 ~q3.rdleoo 0: ;,hether ~hc expc::Geo arc chargc:'!. or bill.::d ::0 the <-
12 viotim or any per30n ccti!lq on the vict'~'e behalf or ao ::he
13 :,,~ctim' G repreoe:ltat' ....:: a:ld reqardlens of '.:r.cther any cud'.
14 ~pe!loe hao "been )3Q,i::::
15 Coot' on 2, ';:'1:ie cct shall tal;c effect ':-. :;0 dayo,
16
SECTION 2, TITLE 42 IS AMENDED BY JlnDING A CHAPTER TO REJln:
<-
17 CHAPTER 70
18 IG~ITION INTERLOCK DEVICES
19 SEC,
20 7001, DEFINITIONS.
21 7002, IGNITION INTERLOCK SYSTEMS FOR DRIVING UNDER THE
22
INFLUENCE.
23 7003, ADDITIONAL DRIVSR'S LICENSE RESTORATION REQUIREMENTS,
24 ~ 7001, DEFINITIONS,
25 THE FOLLOWING wopns .~D PHRASES WHEN USED IN THIS CHAPTER
26 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
27 CONTEXT CLEARLY INDICATES OTHERWISE:
28 "DEPARTMENT," THE DEPARTMENT OF TR..~SPORTATION OF THE
29 COMMONWEALTH,
30 11 IGNITION INTSELOCY. SYSTEM. 1I A SYS'!'EM ).??ROVED 3Y THE
19990S084982038
..~ 2
J7
- I
'" .~., ,. ., .'-. ,,-". ,"",--,,"-.--
'.:jJ""-C;
1 DBPARTMENT THAT~EVENTS A VEHICLE FROM BEIN~T~RTED' OR
2 OPERAT2D UNLESS THE OPER~TOR FIRST PEOVIDES A BREATH S~.MPLE
3 INDICATING THAT THE OPERATOR HAS AN ALCOHOL LEVEL OF LESS THAN
4 . 025%-.
5 5 7002, IGNITION INTERLOCK SYSTEMS FOR DRIVING UNDER THE
6
INFLUENCE,
7 (A) FIRST OFFENSE,--IN ADDITION TO ANY OTHER REQUIREMENTS
8 IMPOSED BY THE COURT, WHERE A PERSON F~S BEEN CONVICTED FOR A
9 FIRST OFFENSE UNDER 75 PA.C,S, 5 3731 (RELATING TO DRIVING UNDER
10 THE INFLUENCE OF ALCOHOL OR CONTROLLED SUBSTANCE), THE COURT MAY
11 ORDER THE INSTALLATION OF AN APPROVED IGNITION INTERLOCK SYSTEM
'.
12 ON EACH MOTOR VEHICLE OWNED BY THE PERSON TO BE EFFECTIVE UPON
13 THE RESTORATION OF OPERATING PRIVILEGES BY THE DEPARTMENT, A
14 RECORD SHALL,BE SUBMITTED TO THE DEPARTMENT WHEN THE COURT HAS
15 ORDERED THE INSTALLATION OF AN APPROVED INTERLOCK IGNITION
16 DEVICE, BEFORE THE DEPARTMENT MAY RESTORE SUCH PERSON'S
17 OPERATING PRIVILEGE, THE DEPARTMENT MUST RECEIVE A CERTIFICATION
18 FROM THE COURT THAT THE IGNITION INTERLOCK SYSTEM HAS BEEN
19 INSTALLED,
20 (B) SECOND OR SUBSEQUENT OFFENSE,--IN ADDITION TO ANY OTHER
21 REQUIREMENTS IMPOSED BY THE COURT, WHERE A PERSON HAS BEEN
22 CONVICTED OF A SECOND OR SUBSEQUENT VIOLATION OF 75 PA.C,S, 5
23 3731, THE COURT SHALL ORDER THE INSTALLATION OF AN APPROVED
24 IGNITION INTERLOCK DEVICE ON EACH MOTOR VEHICLE OWNED BY THE
25 PERSON TO BE EFFECTIVE UPON THE RESTOR~TION OF OPERATING
26 PRIVILEGES BY THE DEPARTMENT, A RECORD SHALL BE SUBMITTED TO THE
27 DEPARTMENT WHEN THE COURT HAS ORDERED THE INSTALLATION OF AN
28 APPROVED INTERLOCK IGNITION DEVICE. BEFORE THE DEPARTMENT MAY
29 RESTORE SUCH PERSON' S OPER~TING PRIVILEGE, THE DEPARTMENT MUST
30 RECEIVE A CERTIFICATION FROM THE COURT TF~.T THE IGNITION
19990S0849B2038
- 3 -
)~
''''''-'.,''10
~-~--"
";",f
1 INTERLOCK SYSTOJl.S BEEN INST,1\.LLED, 0 '
2 (C) ALTERNATIVE DISPOSITION,--FOR THE PURPOSE OF THIS
3 SECTION, ACCEPTANCE OF ACCELER1\.TED REHABILITATIVE DISPOSITION,
4 AN ADJUDICATION OF DELINQUENCY OR A CONSENT DECREE UNDER CHAPTER
5 63 (RELATING TO JUVENILE MATTERS), OR ANY OTHER FOP~ OF
6 PRELIMINARY DISPOSITION OF ANY CHARGE BROUGHT UNDER 75 PA,C.S, S
7 3731 SHALL BE CONSIDERED A FIRST CONVICTION,
8 (D) DEPARTMENT APPROVAL.--AN IGNITION INTERLOCK SYSTEM
9 REQUIRED TO BE INSTALLED UNDER THIS SECTION MUST BE A SYSTEM
10 WHICH HAS BEEN APPROVED BY THE DEPARTMENT, THE DEPJI~TMENT'S
11 APPROVAL OF IGNITION INTERLOCK SYSTEMS SHALL BE PUBLISHED IN THE
12 PENNSYLVANIA BULLETIN,
13 S 7003, ADDITIONAL DRIVER'S LICENSE RESTORATION REQUIREMENTS,
14 IN .1\.DDIT~ON TO JI~ OTHER REQUIREMENTS ESTABLISHED FOR THE
15 RESTORATION OF A PERSON'S OPERATING PRIVILEGES UNDER 75 PA.C.S,
16 S 1548 (RELATING TO REQUIREMENTS FOR DRIVING UNDER INFLUENCE
17 OFFENDERS):
18
(1) WHERE A PERSON'S OPEP~TING PRIVILEGES ARE SUSPENDED
19 FOR A SECOND OR SUBSEQUENT VIOLATION OF 75 PA.C.S, S 3731
20 (RELATING TO DRIVING UNDER INFLUENCE OF ALCOHOL OR CONTROLLED
21 SUBSTANCE), OR A SIMILJI~ OUT-OF-STATE OFFENSE, AND THE PERSON
22 SEEKS A RESTORATION OF OPER1\.TING PRIVILEGES, THE COURT SHALL
23 CERTIFY TO THE DEPARTMENT THAT EACH MOTOR VEHICLE OWNED BY
24 THE PERSON HAS BEEN EQUIPPED WITH AN APPROVED IGNITION
25 INTERLOCK SYSTEM.
26
(2) A PERSON SEEKING RESTORATION OF OPERJI.TING PRIVILEGES
27 SHALL APPLY TO THE DEPARTMENT FOR AN IGNITION INTERLOCK
28 RESTRICTED LICENSE UNDER 75 PA.C,S. S 1951(D) (RELATING TO
29 DRIVER'S LICENSE P'.ND LEARNER'S PERMIT) 'tlHICH WEL BE CLEJI,RLY
30 MJI~KED TO RESTRICT TEE PERSON TO OPEP~TING ONLY MOTOR
19990S0849B2038
- 4 -
,
~ - ~
.
--. '<-"-u ~:-;
1
VEHICLES EQU~ED WITH AN APPROVED
o
INTERLCC::
IGNITCJN SYSTEM.
2
(3) DURING THE YEAR IMMEDIATELY FOLLC'::~G RES:JP~,TION OF
3 THE PERSON'S OPERATING PRIVILEGE, AND THE~~~FTER C::IL THE
4 PERSON OBTAINS AN UNRESTRICTED LICENSE, T~~ ?ERSON SHALL NOT
5 OPERATE JlflY'MOTOR VEHICLE ON A HIGHWAY WIT~:~ THIS
6 COMMONWEALTH UNLESS THE MOTOR VEHICGE IS E~~IPPED ~:TH AN
7 APPROVED IGNITION INTERLOCK SYSTEM,
8
(4) ONE YEAR FROM THE DATE OF ISSUANC~ OF AN IGNITION
9 INTERLOCK RESTRICTED LICENSE UNDER THIS SEC:ION, IF OTHERWISE
10 ELIGIBLE, A PERSON MAY APPLY FOR AN ADDITIONAL REPL"'.CEMENT
11, LICENSE UNDER 75 PA,C.S, ~ 1951(D) THAT DO~S NOT CONTAIN THE
12 IGNITION INTERLOCK SYSTEM RESTRICTION.
13
(5) A PERSON WHOSE OPERATING PRIVILEG~ IS SUS?~NDED FOR
14 A SECOND OR SUBSEQUENT VIOLATION OF 75 PA,C.S, ~ 3731 OR A
15 SIMILAR OUT-OF-STATE OFFENSE, WHO DOES NOT A?PLY FOR AN
16 IGNITION INTERLOCK RESTRICTED LICENSE, SHJI.~~ NOT BE ELIGIBLE
17 TO APPLY FOR THE RESTORATION OF OPERATING P~IVILEGES FOR Jlfl
18 ADDITIONAL YEAR AFTER OTHERWISE BEING ELIGI3LE FOR
19 RESTORATION UNDER PARAGRAPH (1),
20 SECTION 3, THE PROVISIONS OF 75 PA,C,S. C~, 70 SP~.LL APPLY
21 TO ALL PERSONS CONVICTED OF A SECOND OR SUBSE~~ENT VIOLATION OF
22 75 PA,C.S, ~3731 ON OR JI.FTER THE EFFECTIVE Di'::'E OF T~:S
23 SECTION. NOTHING IN THIS ACT SHALL PROHIBIT A C~URT FROM
24 IMPOSING ITS OW~ IGNITION INTERLOCK REQUIREME~=S FOR FIRST
25 OFFENDERS PRIOR TO SEPTEMBER 30, 2001,
26 SECTION 4. THIS ACT SK~LL TAKE EFFECT AS FOLLOWS:
28
(1) 75 PA,C.S, ~ 9720.1 SHALL TAKE EFFECT JULY 21, 2000,
(2) 75 PA.C,S, ~ 7002(A) SHALL TAKE EFFECT SEPTEMBER 30,
27
29 2001.
30
(3) THIS SECTION Sp~"LL T.".KE EFFECT IMi,:E::JIATEL:! .
19990S0849B2038
- 5 -
3D
~
- -
.
-
~ -~~
"-^,
,
1 (4) THECMAINDER OF THIS ACT Sl-l.1\LL 6, EFFEC2T
2 SEPTEMBER 30, 2000, OR IMMEDIATELY, WHICHEVER IS LATER,
...
C30L18DMSj19990S0849B2038
- 6 -
..'
....."
,,-, ',:iii
~I
.
PRIOR PRINTER'S NOS, 952, 1225, 1&14,
19i8, 2038 C
"-~' ~,- - ,--,,,.',, - ,.'. '"'mji-~'
a~NTER:S NO. 2059
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
849'
No.
Session of
1999
INTRODUCED BY GREENLEAF, O'PAKE, HART, BOSCOLA, COSTA, HOLL,
ROBBINS, SALVATORE, SCHWARTZ AND SLOCUM, APRIL 27, 1999
SENATE AMENDMENTS TO HOUSE AMENDMENTS, JUNE 13, 2000
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Cohsolidated Statutes, providing for rcoti~uti~n <--
3 for identiti" the=t .'\lID ::"JR THE USE OF IGNITION INTERLOCK <-
4 SYSTEMS'AND FOR RESTITUTION FOR IDENTITY THEFT, <--
5 The General Assembly of the Commonwealth of pennsylvania
6 hereby enacts as follows:
7
Section 1, ~it:e ~2 0: the ~::nnOi"'~~nia Con:Jolidated
<-
8 ~atuteo io amcnded by adding a oection to ::-ead,
9 S 9720.1, Reotitution fo::- identity theft,
10 (a) C:cnerill ::-ule, The cou::-~ may, 'n 3.ddit'on te an"/ ether
11 reoti tution oentenee cr orde::- a;;,thorize:l b', :e:..-, oent'::!le.:: ::t
12 Dcr:;on ccn~v~~::.:':.::d 8::: ':;.1:= o:::.r:.:Jc .::;f .:..ic.:1ti.':-,. thc.::t 0: :tno:h.::~ <-
13 pC::.:Jor. }\.. ~r:OL~T:~:nJ OF ::"3 :'~J.. ~. oS. S 1::'] ~:l;::~":.':':;:~JC ':'0 IDE~~':'::''..''
<-
14 TIr:::FT) ~o ffiaJ,c ::-eotit~tion fe::- a'l ::-.::aoon.::b::: ,::;:pC:loeo ine:..:::-::-cd
15 by the ':i::tim or O!l the v~etim' 0 be~alf ,
16
:1~ to :":1yc.:J'::..qa.t:. ':::c=~ ;)f the ~.~i.:'::':"R11.J :"8.:,::--~t':"':'",
17 (2) to br'nq or :lefend .::ivi: 0::- crimina: act'ons r~lated
18 t8 thc:t of ':tc yi=t':"~'D :..~c=':i~~, 0=
~
'-'-"0 ,--.
-H:ll:.i1i r- '-':~~
1
';2 )
,
o '. Q
c::; ,. c other cf:ortG to co....-et "c' v' C""ffi' 0 -"cd't
~_.... ...... .....-. ......... ...
2
~~=e~d O~ ~~qat~~c c~~d.:..t rC~Q~t8 r~~~~2d te thcf~ ~f ~~~
3
~~.:..;::~:..m'o :..:i::nt:.~'/.
4
I~'. ~ ~ ~
t'" "ypc:: 0~ C;[]3enoeo, Tuc typeo e~ '::::pC!loeo that ma',' be
rcco~::~ablc ~~dcr thio oection iEclude, b~~ arc not limited :0,
5
6
7
(1) a::::ornc,' feeD,
(2) f.::.::o and cooto impoDcd by cr.::=it bureaus, aooGciotcd
with effort3 to correct the 'lictim'o c::-cdit rocord or
8
9
. a' . . "
lncurrc l2 prl7atc ln~eotlqct~O!lO, end
10 (J) CG~rt C03tO and :ilinq fccc.
11 .reCjiJ.rd' coo of '...het:'1er the eltpenoeo are d:aY'lcd or 5; l' cd to the <-
12 . ~' .
VlC"l!'n or any per:Jon actlnq em the ':ietirr-,':J behalf or ao the
13 ...ictim' 0 repr.::centative and reqardleoo of '.;hether or.... :Jueh
14 eltpcn::c h:lG ldc::n uo.id..
15 Sec~ion 2, Thl:: act :Jhcll ~aJ:c cf=cct in :0 da}'o,
16
.s::C':':Q~I 2. r:-::':'L2 12 Ie ~'l\~1EHr;ED ~'7 1".:;~:::~JC ....... c::''l\..r':'::R ':'0 ~E.L""...:)'
<-
17 SECTION 1, TITLE 42 OF THE PENNSYLVANIA CONSOLIDATED
18 STATUTES IS AMENDED BY ADDING A CHAPTER TO READ:
<-
19 CHAPTER 70
20 IGNITION INTERLOCK DEVICES
21 SEC.
22 7001. DEFINITIONS,
23 7002, IGNITION INTERLOCK SYSTEMS FOR DRIVING UNDER THE
24 INFLUENCE.
25 7003. ADDITIONAL DRIVER'S LICENSE RESTO~~TION REQUIREMENTS,
26 S 7001. DEFI~ITIONS,
27 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
28 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
29 CONTEXT CLEARLY INDICATES OTHERWISE:
30 "DEP.~RTMENT," THE DEP!I.RTMENT OF T~''l'ISPORT!I.TION OF TEE
19990S0849B20S9 - 2 -
33
'Illbo
-~
~.
" .. ~
Elm
,~.~
1
COMMONWEALTH,
o
o.
2 "IGNITION INTERLOCK SYSTE1<I." A SYSTEM APPROVED BY ':CHE
3 DEPARTMENT THAT PREVENTS A VEHICLE FROM BEING STARTED OR
4 OPERATED UNLESS THE OPERATOR FIRST PROVIDES A BREATH SAMPLE
5 INDICATING THAT THE OPERATOR HAS AN ALCOHOL LEVEL OF LESS THJlB
6 .025%'"
7 ~ 7002, IGNITION INTERLOCK SYSTEMS FOR DRIVING UNDER THE
8
INFLUENCE,
9 (A) FIRST OFFENSE,--IN ADDITION TO ANY OTHER REQUIREMENTS
10 IMPOSED BY THE COURT, WHERE A PERSON HAS BEEN CONVICTED FOR A
11' FIRST OFFENSE UNDER 75 PA.C.S, ~ 3731 (RELATING TO DRIVING uNDER
12 THE INFLUENCE OF ALCOHOL OR CONTROLLED SUBSTANCE), THE COURT MAY
13 ORDER THE INSTALLATION OF AN APPROVED IGNITION INTERLOCK SYSTEM
14 ON EACH MOTOR VEHICLE OWNED BY THE PERSON TO BE EFFECTIVE UPON
15 THE RESTORJI3ION OF OPE~~TING PRIVILEGES BY THE DEPARTMENT, A
16 RECORD SHALL BE SUBMITTED TO THE DEP.~TMENT WHEN THE COURT HAS
17 ORDERED THE INSTALLATION OF JIB APPROVED INTERLOCK IGNITION
18 DEVICE. BEFORE THE DEPARTMENT MJI.Y RESTORE SUCH PERSON'S
19 OPERATING PRIVILEGE, THE DEPARTMENT MUST RECEIVE A CERTIFICATION
20 FROM THE COURT THAT THE IGNITION INTERLOCK SYSTEM HAS BEEN
21 INSTALLED,
22 (B) SECOND OR SUBSEQUENT OFFENSE,--IN JlnDITION TO ANY OTHER
23 REQUIREMENTS IMPOSED BY THE COURT, WHERE A PERSON HAS BEEN
24 CONVICTED OF A SECOND OR SUBSEQUENT VIOLJI~ION OF 75 PA,C,S, ~
25 3731, THE COURT SHALL ORD~R THE INSTALLATION OF AN APPROVED
26 IGNITION INTERLOCK DEVICE ON EACH MOTOR VEHICLE OWNED BY THE
27 PERSON TO BE EFFECTIVE UPON THE RESTORATION OF OPEP~TING
28 PRIVILEGES BY THE DEPARTMENT, A RECORD SHALL BE SUBMITTED TO THE
29 DEPARTMENT WHEN THE COURT HAS ORDERED THE INSTALLATION OF ?B
30 JI.PPROVED INTERLOCK IGNITION DEVICE, BEFORE THE DEP!'-.RT1-'SNT "l.:"Y
19990S0849B2059
- 3 -
~"
~~
-
,. :iil~-"".-~~ ~",--,,(.;'. ,.,.-,., "~;_i
, .
3f
-- ~
~' I
'~ M" ' " .'~",
C" "'~-",' ".;-- ,'" - -, 'e" "'ffi:.'\
. .
1
;ESTORE SUCH P~ON'S OPERJI.TING ;RIVILEGE, 4:) DEPARTM2NT MUST
.
2 RECEIVE A CERTIFICATION FROM THE COURT THAT THE IGK=~ION
3 INTERLOCK SYSTEM HAS BEEN INSTALLED,
4 (C) ALTERNATIVE DISPOSITION.--FOR THE PURPOSE OF THIS
5 SECTION, ACCEPTANCE OF ACCELERATED REHABILITATIVE DISPOSITION,
6 AN ADJUDICATION OF DELINQUENCY OR A CONSENT DECREE L~ER CHAPTER
7 63 (RELATING TO JUVENILE MATTERS), OR ANY OTHER FOfu~ OF
8 PRELIMINARY DISPOSITION OF ANY CHARGE BROUGHT UNDER 75 PA.C,S. 2
9 3731 SHALL BE CONSIDERED A FIRST CONVICTION,
10 (D) DEPPRTMENT APPROVAL,--Jl~ IGNITION INTERLOCK SYSTEM
11 '" REQUIRED TO BE INSTALLED UNDER THIS SECTION MUST BE A SYSTEM
12 WHICH HAS BEEN APPROVED BY THE DEPARTMENT, THE DEPARTMENT'S
13 APPROVAL OF IGNIT~ON INTERLOCK SYSTEMS SHP.LL BE PuoLISHED IN T~E
14 PENNSYLVANIA BULLETIN,
15 2 7003, ADDITIONAL DRIVER'S LICENSE RESTORJI.TION REQUIREMENTS,
16 IN ADDITION TO ANY OTHER REQUIREMENTS ESTJl3LISHED FOR THE
17 RESTORATION OF A PERSON'S OPERATING PRIVILEGES UNDER 75 PA.C,S,
18 2 1548 (RELATING TO REQUIREMENTS FOR DRIVING UNDER INFLUENCE
19 OFFENDERS):
20
(1) WHERE A PERSON'S OPE~~TING PRIVILEGES ARE SUSPENDED
21 FOR A SECOND OR SUBSEQUENT VIOLATION OF 75 PA,C.5, 2 3731
22 (RELATING TO DRIVING UNDER INFLUENCE OF ALCOHOL OR CONTROLLED
23 SUBSTANCE), OR A SIMILAR OUT-OF-STATE OFFENSE, fu~D THE PERSON
24 SEEKS A RESTORATION OF OPERATING PRIVILEGES, THE COURT SHJI.LL
25 CERTIFY TO THE DEPARTMENT THAT EACH MOTOR VEHICL2 OI'INED BY
26 THE PERSON HAS BEEN EQUIPPED WITH JI~ APPROVED IG~ITION
27 INTERLOCK SYSTEM,
28
(2) A PERSON SEEKING RESTORATION OF OPERATING PRIVILEGES
29 SHALL APPLY TO THE DEPARTMENT FOR fu~ IGNITION INTERLOCK
30 RESTRICTED LICENSE UNDER 75 P.~,C.S, 2 1951(D) (RE,"-""TI:;S TC
19990S0849B2059
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pRIV~R'S LICE~ AND LEARNER'S PERMIT) WHI~~ILL BE CLEARLY
~~RKED TO RES~CT THE PERSON TO OPERATING ONLY MOTOR
VEHICLES EQUIPPED WITH AN APPROVED INTERLOCK IGNITION SYSTEM,
(3) DURING THE YEAR IMMEDIATELY FOLLOWING RESTORATION OF
2
3
4
5 THE PERSON'S OPERATING PRIVILEGE, AND THEREAFTER UNTIL THE
6 PERSON OBTAINS AN UNRESTRICTED LICENSE, THE PERSON SHALL NOT
7 OPERATE ANY MOTOR VEHICLE ON A HIGHWAY WITHIN THIS
8 COMMONWEALTH UNLESS THE MOTOR VEHICLE IS EQUIPPED WITH JI~
9 APPROVED IGNITION INTERLOCK SYSTEM,
10
(4) ONE YEAR FROM THE DATE OF ISSVJl~CE OF AN IGNITION
11 INTERLOCK RESTRICTED LICENSE UNDER THIS SECTION, IF OTHERWISE
12 ELIGIBLE, A PERSON MAY APPLY FOR AN ADDITIONAL REPLF.CEMENT
13 LICENSE UNDER 75 PA,C,S, ~ 1951(D) THAT DOES NOT CONTAIN THE
14 IGNITION I~TERLOCK SYSTEM RESTRICTION,
15
(5) A PERSON WHOSE OPERATING PRIVILEGE IS SUSPENDED FOR
16 A SECOND OR SUBSEQUENT VIOLATION OF 75 PA,C,S, ~ 3731 OR A
17 SIMILAR OUT-OF-STATE OFFENSE, WHO DOES NOT APPLY fOR JI~
18 IGNITION INTERLOCK RESTRICTED LICENSE, SHALL NOT BE ELIGIBLE
19 TO APPLY FOR THE RESTORATION OF OPERATING PRIVILEGES FOR AN
. .
20 ADDITIONAL YEAR AFTER OTHERWISE BEING ELIGIBLE FOR
21 RESTORATION UNDER PARAGRAPH (1).
22
SECTION 2, TITLE 42 IS AMENDED BY ADDING A SECTION TO READ:
23 ~ 9720.1, RESTITUTION FOR IDENTITY THEFT,
24 (A) GENERAL RULE.--THE COURT MAY, IN ADDITION TO ANy OTHER
25 RESTITUTION SENTENCE OR ORDER AUTHORIZED BY LAW, SENTENCE A
26 PERSON CONVICTED OF A VIOLATION OF 18 PA,C.S, ~ 4120 (RELATING
27 TO IDENTITY THEFT) TO MAKE RESTITUTION FOR ALL REASONABLE
28 EXPENSES INCURRED BY THE VICTIM OR ON THE VICTIM'S BEHJI.LF:
29
(1) TO INVESTIGATE THEFT OF THE VICTIM'S IDENTITY;
30
(2) TO BRING OR DEFEND CIVIL OR CRIMINAL ACT:OKS RELATED
19990S0849B20S9
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T~EFT OF 1:5 VICTIM'S IDENTITY; OR 0 . .
(3) TO TAKE OTHER EFFORTS TO CORRECT THE VICTIM'S CREDIT
,TO
2
3 RECORD OR NEGATIVE CREDIT REPORTS RELATED TO THEFT OF THE
4 VICTIM'S IDENTITY.
5 (B) TYPES OF EXPENSES,--THE TYPES OF EXPENSES THAT MAY BE
6 RECOVERABLE UNDER THIS SECTION INCLUDE. BUT ARE NOT LIMITED TO:
7
(1) ATTORNEY FEES;
(2) FEES AND COSTS IMPOSED BY CREDIT BUREAUS, ASSOCIATED
S
9 WITH EFFORTS TO CORRECT THE VICTIM'S CREDIT RECORD OR
10 INCURRED IN PRIVATE INVESTIGATIONS; AND
11
(3) COURT COSTS AND FILING FEES,
12
SECTION 3. THE PROVISIONS OF ~ 42 PA,C,S, CH, 70 SHALL
13 APPLY TO ALL PERSO~S CONVICTED OF A SECOND OR SUBSEQUENT
14 VIOLATION OF '75 PA,C.,S., ~ 3731 ON OR AFTER THE EFFECTIVE DATE OF
15 THIS SECTION, NOTHING-IN THIS ACT SHALL PROHIBIT A COURT FROM
16 IMPOSING ITS OWN IGNITION INTERLOCK REQUIREMENTS FOR FIRST
17 OFFENDERS PRIOR TO SEPTEMBER 30, 2001,
IS SECTION <1. THIS ACT SHALL TAKE EFFECT AS FOLLOWS:
19
(1) .+5- THE PROVISIONS OF 42 PA.C,S, ~ 9720.1 SHALL TJI.KE
20 EFFECT JULY 21, 2000,
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(2) ~ THE PROVISIONS OF 42 ,PA,C,S. ~ 7002 (A) SHALL TAKE <-
21".
22 EFFECT SEPTEMBER 30, 2001,
23
(3) THIS SECTION SHALL TAKE EFFECT IMMEDIATELY,
2<1
(<1) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT
25 SEPTEMBER 30, 2000, OR IMMEDIATELY, WHICHEVER IS LATER.
C30LlSDMS/19990S0S<19B20S9
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BILLY J. WARD
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENI\JSYL\!Ar~IA
NO. 01- 3;JOQ ~ I.v.--
v,
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this 4. day of rIA -"1-' 2001 upon Petition of Billy J. Ward, a hearing is SE:,t
on the License Suspension Appeal for the ~ day of (ill fJ ..d-2001, at.!i-! ltL o'clock
Q....,m, in Courtroom Number I , Cumberland County Courthouse, One Cour1:ho'Jse SquarE!,
Carlisle, Cumberland County, Pennsylvania, all proceedings to stay meanwhile,
Notice of said hearing shall be given by Petitioner's counsel to the Department of
Transportation at least sixty (60) days prior to the date of said hearing.
Pursuant to Section 1550(b) of the Pennsylvania Motor Vehicle Code, Petitioner's appeal
shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended
pending a final determination in this matter.
BY THE COURT:
0L
Distribution:
Prothonot!3ry's Office
George Kabusk, Esquire, Penn DOT
1101 South Front Street, Harrisburg, PA 17104.2516, \IlNVAlASNN3d
David E. Hershey, Esquire AlNnOO ON\fJtl38V'1m
2233 North Front Street, Harrisburg, PA 17110
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BILLY J. WARD,
PETITIONER
v,
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRNER LICENSING,
RESPONDENT
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO, 2001-3209
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this M day of ~d . I ~ 1-,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 10th day of October, 2001 at
9:30 a.m. in Courtroom Number! of the Cumberland County Courthouse, Carlisle,
Pennsylvania,
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BY THE COURT:
J,
Distribution:
George H. Kabusk, Esquire, Department of Transportation, Riverfront Office Center- 3rd Floor,
1101 South Front Street, Harrisburg, P A 17104-2516
David E, Hershey, Esquire, Mancke, Wagner, Hershey & Tully, 2233 North Front Street,
Harrisburg, PA 17110
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BILLY J. WARD,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
No. 01-3209 CIVIL TERM
ORDER OF COURT
AND NOW, this lOth day of October, 2001,
upon consideration of the Petitioner's License Suspension
Appeal in the above-captioned matter, and pursuant to an
agreement of counsel in the person of George Kabusk,
Esquire, on behalf of the Respondent, and David E. Hershey,
Esquire, on behalf of the Appellant/Petitioner, this matter
is continued generally. The Court will schedule a hearing
promptly at the request of either counsel.
By the Court,
rJ)
J.
David E. Hershey, Esquire
2233 N. Front Street
Harrisburg, PA 17110
For the Petitioner
George Kabusk, Esquire
Pennsylvania Department of Transportation
1101 S. Front Street
Harrisburg, PA 17104-2516
For the Respondent
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BILLY J. WARD,
Petitioner
: IN TIIE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
: CIVIL ACTION - LAW
: LICENSE SUSPENSION APPEAL
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU:
OF DRIVER LICENSING,
Respondent : NO, 01-3209 CIVIL TERM
IN RE: PETITIONER'S LICENSE SUSPENSION APPEAL
BEFORE OLER. J.
ORDER OF COURT
AND NOW, this 12th day of June, 2002, upon consideration of Petitioner's
License Suspension Appeal, and for the reasons stated in the accompanying opinion, the
appeal is sustained to the extent that the portion of the Department of Transportation's
April 26, 2001, notice requiring Petitioner to equip his vehicles with ignition interlock
systems as a prerequisite to scheduled restoration of his driving privilege is rescinded,
BY THE COURT,
..6avid E. Hershey, Esq,
1 South Baltimore Street
Dillsburg, PA 17019
Attorney for the Petitioner
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f'reorge Kabusk, Esq,
Pennsylvania Department of Transportation
1101 S. Front Street
Harrisburg, PA 17104-2516
Attorney for the Respondent
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BILLY J, WARD,
Petitioner
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
: CIVIL ACTION - LAW
: LICENSE SUSPENSION APPEAL
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU:
OF DRIVER LICENSING,
Respondent : NO, 01-3209 CIVIL TERM
IN RE: PETITIONER'S LICENSE SUSPENSION APPEAL
BEFORE OLER. J.
OPINION and ORDER OF COURT
OLER, l, June ,2002,
In this appeal of an action taken by the Pennsylvania Department of
Transportation, Bureau of Driver Licensing (hereinafter Department of Transportation),
Petitioner requests that this court rescind that part of a license suspension notice that
required, as a prerequisite to scheduled restoration of Petitioner's driving privilege, that
Petitioner equip each of the vehicles owned by him with an approved ignition interlock
system.
For the reasons stated in this opinion, Petitioner's appeal will be sustained,
DISCUSSION
In an underlying criminal case, Petitioner, having pled guilty on April 10, 2001, to
driving under the influence, was sentenced to pay the costs of prosecution and a fine, to
undergo a term of imprisonment of 30 days to 23 months in the county prison, and, as a
prerequisite to restoration of his driving privilege, to complete an alcohol treatment
43
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program,] The sentencing court did not include a requirement that Petitioner install
ignition interlock systems in his vehicles?
Subsequent to this sentencing order, the Department of Transportation sent
Petitioner a suspension notice dated April 26, 2001, detailing prerequisites to restoration
of his driving privilege, In addition to the requirement in the sentencing order, the
Department of Transportation also required, as a prerequisite to scheduled restoration,
that Petitioner install an approved ignition interlock system in each vehicle that he
owned,3 The notice stated, in relevant part:
As a result of your conviction for driving under the influence, you
are required by law to have all vehicle(s) owned by you equipped with an
approved ignition interlock system before your driving privilege can be
restored. If you fail to comply with this requirement, your driving privilege
will remain suspended for an additional year.4
On May 25, 2001, Petitioner filed a license suspension appeal from this aspect of
the notice, raising several issues,5 On October 10, 2001, the matter was continued
generally by agreement of counsel.6 On June 6, 2002, in light of the decision by the
Commonwealth Court in Schneider v Pennsylvania Department of Transportation, 7
counsel related to the court that they would not object to a termination of the continuance
for purposes of a disposition of Petitioner's appeal at this level.
In Schneider v. Pennsylvania, the Commonwealth Court stated:
1 Order of Ct., April 10, 2001 (Commonwealth v, Ward, NO, 00-2381 Criminal Term, Ct. Com,
PI. Cumberland County, Apr. 10,2001) (Hess, l).
2 fd, In Commonwealth v. Mockaitis, 50 Cumberland LJ, 184 (Feb. 12,2001), a challenge to the
constitutionality of the statutory ignition interlock system requirement was upheld by the
Honorable Edgar B. Bayley of this court,
3 Pet'r's License Suspension Appeal, filed May 25, 2001 (Ex, A: Notice from Department of
Transportation to Petitioner, Dated Apr. 26, 2001),
4 fd.
S Pet'r's License Suspension Appeal, filed May 25, 2001.
6 Order ofCt., Oct. 10,2001.
7 Schneider v, Pennsylvania Department of Transportation, NO, 1513 C,D, 2001, 2001 WL
1692244 (Pa, Commw, Ct., Jan. 11,2002),
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Although [the petitioner] had two Dill offenses and pursuant to
Section 7002(b), the trial court was required to order installation of an
ignition interlock device, that failure does not mean that PennDOT has been
given authority to override the trial court's order and require installation,
Section 7002 provides that only "the court shall order the installation of an
approved ignition interlock device...." Because this provision gives a court
the sole authority, PennDOT has no unilateral authority to impose ignition
interlock device requirements if the trial court fails to do so,
Id. at *2 (footnotes and citations omitted) (emphasis omitted),
Accordingly, the Commonwealth Court, in Schneider, affirmed the trial court's
order rescinding the ignition interlock system provision in the suspension notice issued to
the petitioner by the Department of Transportation,S On this issue, Schneider is
indistinguishable from the present case and, accordingly, the same result must obtain
herein. For the foregoing reasons, Petitioner's appeal will be sustained, without prejudice
to Respondent's right to pursue a challenge to this holding, prescribed by Schneider, on
appeal. 9
ORDER OF COURT
AND NOW, this 12th day of June, 2002, upon consideration of Petitioner's
License Suspension Appeal, and for the reasons stated in the accompanying opinion, the
appeal is sustained to the extent that the portion of the Department of Transportation's
April 26, 2001, notice requiring Petitioner to equip his vehicles with ignition interlock
systems as a prerequisite to scheduled restoration of his driving privilege is rescinded,
BY THE COURT,
Isl J. Weslev Oler. Jr.
J, Wesley Oler, Jr" 1.
8 See Id.
9 In view of the disposition of this case on this ground, it is unnecessary to address the other
issues raised by Petitioner as grounds for relief,
3
16
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David E. Hershey, Esq,
1 South Baltimore Street
Dillsburg, PA 17019
Attorney for the Petitioner
George Kabusk, Esq,
Pennsylvania Department of Transportation
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for the Respondent
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BILLY J. WARD,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v,
No, 01-3209
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
MOTION TO RECONSIDER AND VACATE ORDER ISSUED JUNE 12.2002
The Commonwealth of Pennsylvania , Department of Transportation, Bureau of Driver
Licensing (Department), by and through its attorney, George H, Kabusk, Esquire, respectfully
represents as follows:
1, By official notice dated April 26, 2001, the Department of Transportation, Bureau of
Driver Licensing, notified Billy J. Ward, O,L.N, 21226197, that as a result of his
conviction on February 20,2001 of a violation of Section 3731 of the Vehicle Code,
relating to Driving Under the Influence of Alcohol or Drugs, on August 25, 2000, his
driving privilege was being suspended for a period of one year,
2. The notice dated April 26, 2001 additionally notified the petitioner that as a result of
his conviction of driving under the influence, he was required by law to have all
vehicle(s) owned by him equipped with an approved ignition interlock system before
his driving privilege can be restored and that ifhe failed to comply with this
requirement, his driving privilege would remain suspended for an additional one year,
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3. The petitioner filed an appeal of the above-mentioned suspension on or about May 25,
2001, in the Court of Common Pleas of Cumberland County,
4, By Order dated May 30,2001 the matter was set for hearing on August 20,2001.
5, By Order dated August 2, 2001, the matter was continued to October 10,2001.
6. By Order dated October 10, 2001, the matter was continued generally,
7. The petitioner was contesting the imposition of the ignition interlock raising
numerous issues including the argument that the ignition interlock had not been
ordered by the court,
8, The sentencing court did not order the imposition of the ignition interlock.
9, Subsequent to the filing of this matter the Commonwealth Court issued an opinion in
Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d
363 (Pa. Cmwlth, 2002), where in the Court ruled that the ignition interlock must be
ordered by a court and that the Department does not have "unilateral authority to
impose ignition interlock device requirements ifthe trial court fails to do so,"
10, The parties agreed that they would not object to the termination of the continuance for
the purposes of this Honorable Court deciding the matter.
11, This Honorable Court issued and Opinion and Order dated June 12, 2002 in which the
Court sustained the appeal in regard to the imposition of the ignition interlock citing
Schneider,
12, There was no hearing to allow the Department to enter its documents into evidence,
13. The Department respectfully requests pursuant to 42 Pa.C,S, S 5505 that this
Honorable Court reconsider its Opinion and Order dated June 12, 2002 and vacate the
Order dated June 12, 2002 solely for the purpose of scheduling a hearing so as to
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allow the Department to admit a set of documents that are under seal and certification,
14. The undersigned counsel contacted David E, Hershey, Esquire, attorney for the
petitioner, and Attorney Hershey indicated he has no objection to the granting the
Department's motion,
WHEREFORE, the Department respectfully requests that its Motion to Reconsider and
Vacate be granted and the matter be scheduled to allow the Department to admit documents,
Respectfully submitted,
~~
George ,Kabusk, squire
Assistant Counsel
Office of Chief Counsel
Riverfront Office Center-3rd Floor
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Date: June 27,2002
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BILLY J. WARD,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v,
No, 01-3209
. COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
VERIFICATION
I verify that the statements made in the Motion to Reconsider and Vacate Order issued
June 12, 2002 are true and correct. I understand that false statements are made subject to the
penalties of 18 Pa. C, S, Section 4904, relating to unsworn falsification to authorities,
~f4~?t
George H. abusk
Assistant Counsel
Department of Transportation
Riverfront Office Center
110 1 South Front Street
Harrisburg, PAl 71 04-2516
(717) 787-2830
DATE: June 27,2002
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BILLY J, WARD,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v,
No, 01-3209
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRNER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I hereby certifY that I am this day serving a copy of the Motion to Reconsider and Vacate
Order issued June 12, 2002 upon the person, and in the manner, indicated below, which satisfies
the requirements of the Pennsylvania Rules of Civil Procedure:
By first class mail, prepaid, addressed to:
David E, Hershey, Esquire
1 South Baltimore Street
Dillsburg, P A 17019
~o~liu~
George . Kabusk
Assistant Counsel
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: June27,2002
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BILLY J, WARD,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No, 01-3209
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this d day of T U \7<2..
, 2002, the Department of
Transportation's Motion to Vacate the Opinion and Order dated June 12,2002, is granted and it
is hereby Ordered that the Opinion and Order of June 12, 2002 is Vacated and the matter ~ 4-l
scheduled for hearing. 0 n Tk w eeL,? ~ta""c... 21{, 2. 00 2. 2-1 2.', ~"" jO-......,.
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BY THE COURT:
J,
Distribution:
/Jeorge H. Kabusk, Esquire, Department of Transportation, Riverfront Office Center- 3rd Floor,
1101South Front Street, Harrisburg, Pennsylvania 17104-2516
.flavid E. Hershey, Esquire, 1 South Baltimore Street, Dillsburg, PA 17019
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BILLY J. WARD,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
01-3209 CIVIL TERM
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
LICENSE SUSPENSION APPEAL
IN RE: LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this 27th day of June, 2002, upon
consideration of Petitioner's License Suspension Appeal,
and following a vacation of the order entered by this Court
on June 12, 2002, upon motion of the Respondent, premised
upon the need to make a more complete record for purposes
of appellate review, and following a hearing held on this
date, at which the record was supplemented for this
purpose, pursuant to an agreement of counsel, the record is
declared closed, and it is further ordered as follows:
For the reasons stated in the opinion of
this Court which accompanied the Order of Court dated June
12, 2002, the Petitioner's License Suspension Appeal herein
is sustained to the extent that the portion of the
Department of Transportation's April 26, 2001, notice
requiring Petitioner to equip his vehicles with ignition
interlock systems as a prerequisite to scheduled
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restoration of his driving privilege is rescinded. The
said opinion of this Court is incorporated herein by
reference and made a part hereof.
~David Hershey, Esquire
For the Petitioner
~eorge Kabusk, Esquire
For the Respondent
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DMSION
BY: TERRANCE M, EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
BILLY J, WARD,
Appellee
vs,
}
}
}
}
}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P A
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
NO, 01-3209 Civil Term
Notice of Appeal
Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that
was filed in this matter on September 27, 2002, This order is from a statutory appeal and cannot be reduced to
judgment. The order has been entered in the docket and notice of its entry has been given under Pa. RC,P,
236, A copy of the docket entries are attached hereto.
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TERRANCE M, EDWARDS
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
11 0 1 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
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COMMONWEALTH OF PENNSYL V ANlA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TERRANCEM,EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO, 25231
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
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BILLY J, WARD,
Appellee
vs,
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
}
}
}
}
}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO, 01.3209 Civil Term
ReQuest for Transcript
A notice of appeal having been filed in this matter, the official court reporter is hereby
requested to produce, certify and file the transcript in this matter in conformity with Pa, R.A,P, 1922,
Prepare only the original for inclusion in the record as the Appellant, Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the
transcript.
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TERRANCE M, EDWARDS
Assistant Counsel
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
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2001-03209
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cumb~.... a~d.County Prot~onotary'~ffice
U ClVll Case Inqulry U
WARD BILLY J (vs) PENNSYLVANIA COMMON
Page
1
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed...."..:
Time......... :
Execution Date
Jury Trial. . . .
D~sposed Date.
Hlgher Crt 1,:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
WARD BILLY J APPELLANT HERSHEY DAVID E
6017 WERTZVILLE ROAD
ENOLA PA 17025
PENNSYLVANIA COMMONWEALTH OF APPELLEE . Tc"",:,:,.,).:'::'f;:r1
DEPARTMENT OF TRANSPORTATION h: '''''''''''''';:1 .' t.?j :lan:l
BUREAU OF DRIVER LICENSING !1oJ;A '"'ir'!&1 ,,~!t<~." ~ll l;:'C" 1" ,10 ";-".,,
'UU "", .,""'. ~,,"'~ ,,,",, "., ,..;;r"or., "<I.
;U~~I~~~~ ~~ONI7n~E~~16 Tl1hL.1f ~ay Oi~"'-7' ~__
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*****************************************************************~Q~~ *******
* Date Entries *
********************************************************************************
5/25/2001
6/04/2001
8/02/2001
10/11/2001
6/12/2002
6/27/2002
6/27/2002
9/27/2002
5/25/2001
12:56
0/00/0000
0/00/0000
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
-------------------------------------------------------------------
ORDER OF COURT - DATED 5/30/01 - IN RE LICENSE SUSPENSION APPEAL -
A HEARING IS SET FOR 8/20/01 AT 9:30 AM IN CR 1 CUMBERLAND COUNTY
COURTHOUSE CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES
MAILED 6/4/01
-------------------------------------------------------------------
ORDER - DATED 8/2/01 - IN RE DEPT'S REQUEST FOR A CONTINUANCE AND
WITHOUT OBJECTION FROM THE PETITIONER THE HEARING IN THE ABOVE
REFERENCED MATTER IS CONINUED AND RESCHEDULED FOR 10/10/01 AT 9:30
AM IN CR 1 IN THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE
COURT J WESLEY OLER JR J COPIES MAILED 8/2/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 10/10/01 - IN RE PETITIONER'S LICENSE
SUSPENSION APPEAL IN THE ABOVE CAPTIONED MATTER - PURSUANT TO AN
AGREEMENT OF COUNSEL I THE PERSON OF GEORGE KABUSK ESQ ON BEHALF
OF RESPONDENT AND DAVID E HERSHEY ESQ ON BEHALF OF
APPELLANT/PETITIONER THIS MATTER IS CONTINUED GENERALLY - THE
COURT WILL SCHEDULED A HEARING PROMPTLY AT THE RESQUEST OF EITHER
COUNSEL - BY THE COURT J WESLEY OLER JR J - BY THE COURT J WESLEY
OLER JR J COPIES MAILED 10/11/01
-------------------------------------------------------------------
ORDER OF COURT - DATED 6/12/02 - IN RE PETITIONER'S LICENSE
SUSPENSION APPEAL - AND FOR THE REASONS STATED IN THE ACCOMPANYING
OPION THE APPEAL IS SUSTAINED TO THE EN~ENT TART THE PORTION OF
THE DEPARTMENT OF TRANSPORTATION'S 4/26/01 NOTICE REQUIRING
PETITIONER TO EQUIP HIS VEHICLES WITH IGNITION INTERLOCK SYSTEMS
AS A PREREQUISITY TO SCHEDULED RESORATION OF HIS DRIVING PRIVILEGE
IS RESCINDED - BY THE COURT J WESLEY OLER JR J COPIES MAILED
6/12/02
-------------------------------------------------------------------
MOTION TO RECONSIDER AND VACATE ORDER ISSUED JUNE 12, 2002 BY
GEORGE H KABUSK ATTY
-------------------------------------------------------------------
ORDER - DATED 6/27/02 - THE DEPARTMENT OF TRANSPORTATION MOTION TO
VACATE THE OPINION AND ORDER DATED 6/12/ IS GRAN~ED AND IT IS
HEREBY ORDERD THAT THE OPINION AND ORDER OF 6/12/02 IS VACATED AND
THE MATTER IS SCHEDULED FOR HEAERING ON 6/27/02 AT 2:30 PM - BY
THE COURT J WESLEY OLER JR J COPIES MAILED 6/27/02
-------------------------------------------------------------------
ORDER OF COURT - DATED 9/27/02 - IN RE LICENSE SUSPENSION APPEAL -
THE RECORD IS DECLARED CLOSED - FOR REASONS STATED IN THE OPINION
OF THIS COURT - THE PETITIONER'S LICENSE SUSPENSION APPEAL IS
SUSTAINED TO THE EXTENT THAT THE PORTION OF THE DEPT OF
TRANSPORTION 4/26/01 NOTICE REQUIRING PETITIONER TO EQUIP HIS
VEHICLES WITH IGNITION INTERLOCK SYSTEMS - RESTORATION OF HIS
DRIVING PRIVILEGE IS RESCINDED - BY THE COURT J WESLEY OLER JR J
COPIES MAILED 9/27/02
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F JRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEIDCLE & TRAFFIC LAW DNISION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO, 25231
RNERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
BILLY J, WARD,
Appellee
vs,
}
}
}
}
}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P A
COMMONWEALTH OF PENNSYL V ANlA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRNER LICENSING,
Appellant
NO. 01-3209 Civil Term
Proof of Service
I hereby certifY that I have on this day and date duly served a true and correct copy of the
foregoing documents upon the persons and in the manner indicated below, which service satisfies the
requirements ofPa, R.A.P. 121:
First Class Mail; Postage Pre-Paid;
Addressed as Follows:
Judge J. Wesley 0ler, Jr.
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Court Reporter
Cumberland County Courthouse
1 Courthouse Square
Carlisle, P A 17013
David E, Hershey, Esquire
Art, for Appellee Ward
2233 North Front Street
Harrisburg, P A 17110
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DANA M, BRESSLER
Appellate Paralegal for Vehicle & Traffic Law Division
Date: October 10, 2002
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Commonwealth Court of Pennsylvania
October 15, 2002
RE:
Ward v. Bur. Driver Licensing
NoiG'~'i(:;IX2aoZ>
Ag;~';YDocket NUlT1ber:'~Qg~
Filed Date: October 11, 2b02
Notice of Docketing Appeal
A Notice of Appeal, a copy of which is enclosed, from an order of your court has been
docketed in the Commonwealth Court of Pennsyivania, The docket number in the
Commonwealth Court is endorsed on this notice, The Commonwealth Court docket number
must be on all correspondence and documents filed with the court,
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of
Appeal has the effect of directing the Court to transmit the certified record in the matter to
the Prothonotary of the Commonwealth Court,
The complete record, including the opinion of the trial judge, should be forwarded to the
Commonweaith Court within forty (40) days of the date of filing of the Notice of Appeal. Do
not transmit a partial record,
Pa,RAP, 1921 to 1933 provides the standards for preparation, certification and
transmission of the record,
The address to which the Court is to transmit the record is set forth on Page 2 of this
notice.
Notice to Counsel
A copy of this notice is being sent to all parties or their counsel indicated on the proof of
service accompanying the Notice of Appeal. The appearance of all counsel has been
entered on the record in the Commonwealth Court, Counsel has thirty (30) days from the
date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant
to Pa. RAP. 907 (b),
Appellant or Appellant's attorney should review the record of the trial court, in order to
insure that it is complete, prior to certification to this Court, (Note: A copy of the Zoning
Ordinance must accompany records in Zoning Appeal cases),
The addresses to which you are to transmit documents to this Court are set forth on
Page 2 of this Notice,
If you have special needs, please contact this court in writing as soon as possible,
Attorney Name
Terrance M. Edwards, Esq,
David E, Hershey, Esq,
Party Type
Appellant
Appellee
Party Name
Bureau of Driver Licensing
Billy J. Ward
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DMSION
BY: TERRANCE M. EDWARDS
ASSISTANT COUNSEL
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 25231'
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
. HARRISBURG,PENNSYLV,'ANIA 17104-2516
(717) 787-2830
BILLYJ. WARD, .
Appellee
vis.
COMMONWEALTII OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER UCENSjNG,
Appellant
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA .
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NO, 01-3209 Civil Term
. Notice of Aopeal
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Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that
was filed in this matter on September 27, 2002. This order is from a statutory appeal and cannot be reduced to
judgment. The order has been entered in the docket and notice of its entry has been given under Pa, R,C,P.
236, A copy of the docket entries are attached hereto.
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Assistant Counsel
Appellate Section
. Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
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BILLY J. WARD,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU:
OF DRIVER LICENSING,
Appellant
NO. 01-3209 CIVIL TERM
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the HONORABLE
J, WESLEY OLER, JR., J., Cumberland County
Courthouse, Carlisle, Pennsylvania, on
June 27, 2002, in Courtroom Number One.
APPEARANCES:
David E. Hershey, Esquire
For the Appellee
George H. Kabusk, Esquire
For the Appellant
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FOR THE RESPONDENT
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INDEX TO EXHIBITS
MARKED
Ex, No. 1 - packet of documents
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THE COURT:
This is the time and place for
2 a hearing on the Petitioner's license suspension appeal in
3 the case of Billy J, Ward versus the Commonwealth of
4 Pennsylvania, Department of Transportation at Number
5
01-3209 Civil Term,
We will let the record indicate that
6 the Petitioner is present in court with his counsel, David
7
E. Hershey, Esquire.
The Respondent is represented by
8 George H. Kabusk, Esquire.
9 Earlier on today's date I issued an order
10 vacating the order of June 12, 2002, of this Court pursuant
11 to an agreement of counsel for the sole purpose of
12 facilitating the creation of a better record for purposes
13 of disposition of Petitioner's appeal. Mr. Kabusk, I
14 believe that you wanted to present a packet of documents
15 for purposes of making a more complete record.
16
MR. KABUSK: Yes, Your Honor. What is
17 marked as Commonwealth Exhibit Number 1 is a packet of
18 documents under seal and certification consisting of four
19
subexhibits.
I've provided a copy to Mr. Hershey.
20 Subexhibit Number 1 is Official Notice of Suspension dated
21
and mailed 4/26/01, effective 10/27/01.
That notice
22 informs Mr. Ward that as a result of his 2/20/2001
23 conviction of violating Section 3731 of the Vehicle Code,
24 Driving under the Influence, on 8/25/2000, his driving
25 privilege was being suspended for a period of 1 year,
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1 Additionally, that notice informed him that
2 he must have the ignition interlock installed on all his
3 vehicles before his driving privileges can be restored.
4 Subexhibit 2 is Report of Clerk of Cumberland County
5 Conviction 2/20/01, seal attached to the original,
6 Subexhibit 3 is the Acknowledgment of
7 Suspension, Revocation, Disqualification, Cancellation as
8 required under Section 1541 of the Vehicle Code, and
9 Subexhibit 4 is the driving record which appears in the
10 file of the Defendant, Billy J, Ward, operator's number
11 21226197, date of birth 3/12/55, in the Bureau of Driver
12 Licensing, Harrisburg, Pennsylvania.
13 I move for the admission of what's been
14 marked as Commonwealth Exhibit Number 1.
15
16
17
THE COURT: Mr. Hershey.
MR. HERSHEY: No objection,
THE COURT:
All right.
And the
18 stenographer has marked this item?
19 MR. KABUSK: She needs to mark it now.
20
THE COURT:
All right.
21 (Whereupon, Commonwealth's Exhibit No.1 was
22 marked for identification.)
23
MR. KABUSK:
And that's the Department's
24 case, Your Honor.
25
THE COURT:
Commonwealth's Exhibit 1 is
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1 admitted,
2
3
(Whereupon, Commonwealth's Exhibit No.1 was
admitted. )
4 THE COURT: And I gather that nothing in
5 this exhibit changes the facts that the Court based it's
6 earlier opinion on. This was an opinion which accompanied
7 the Order of Court dated June 12, 2002; is that correct?
8 MR. KABUSK: To the extent that the Court
9 the sentencing court did not order the imposition of the
10 ignition interlock, that is correct, Your Honor. It does
11 not change your opinion, and if you would note on
12 Subexhibit Number 2, Box G, Act 63 ignition interlock
13 required, the box no is checked.
14
15 referring to.
16
THE COURT:
I'm not sure what you were
MR. KABUSK: On the Report of the Clerk of
17
18
19
20
21
22
23
24
25
convictions.
THE COURT: Yes.
MR. KABUSK: The Department's exhibits
indicate that the Court did not -- the sentencing court for
the DUI did not order the imposition of the ignition
interlock.
THE COURT:
All right.
petition.
MR. KABUSK: And that was in Mr. Hershey's
However, to make the record complete, I just
5
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1 ask that that be admitted.
2 THE COURT: All right. The opinion that
3 accompanied the order of June 12, 2002, made a number of
4 factual findings which I had assumed were not being
5 contested. I'm assuming that is still the case.
6 MR. KABUSK: That's correct, Your Honor.
7 THE COURT: Mr. Hershey, was there anything
8 you wanted to add?
9 MR. HERSHEY: Your Honor, since I'm
10 anticipating that the Court is going to rely on Schneider
11 as the sole basis for it's opinion in this case, just to
12 make the record complete, there were a number of issues
13 beyond the issue decided in Schneider that I raised in my
14 petition, some of which had not been raised in Mockaitis,
15
16
17
THE COURT: In what?
MR. HERSHEY: Some of which have not been
raised in Mockaitis.
So in the interest of fleshing out
18 the record here for purposes of any appellate review, I
19 would like to just place argument on the record regarding
20 some of the issues I raised in my brief.
21
THE COURT:
Well, as you know, in my
22 opinion I included a footnote indicating that I was not
23 addressing any of the other issues because it was not
24 necessary for my resolution of the case. I think those
25 issues are preserved in the sense that you had them in your
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1 petition, but I'm not going to rule on them because they're
2 not necessary for my disposition.
3 MR. HERSHEY: That's fine, Your Honor. I
4 understand the Court's position. My only concern is I
5 want to make sure that in the event that Schneider is
6 overturned, that there's an adequate record for an
7 appellate review of the other issues, if I could just look
8 at my petition for a moment.
9
Let me do this, Your Honor. Since we've not
10 had a hearing on this before today, in item five of my
11 original petition I had asked this Court to take judicial
12 notice of Senate Bill 849 and all of it's prior forms prior
13 to becoming Act 63 of 2000, including the legislative
14 summary obtained from the Pennsylvania State website, in
15 chronological order by a listing a variety of printer
16 numbers which were attached and marked as Exhibit C as part
17 of my petition.
18 Would the Court be agreeable to take
19 judicial notice of that legislative summary for the purpose
20 of this record?
21
22
THE COURT: Mr. Kabusk.
MR. KABUSK: No objection, provided that the
23 Court also take judicial notice of any other legislative
24 history behind the ignition interlock bill.
25 THE COURT: By legislative history, are you
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1 referring to judicial transcripts or are you referring to
2 some individual summary of the history of the legislation?
3 MR. KABUSK: Whatever acts there were
4 involved in passing the law. I'm not sure what he's
5 referring to as a complete history.
6
THE COURT:
I'm not either.
The Court
7 would not normally take judicial notice of it's research
8 for a case, and I don't want to put the appellate court in
9 the awkward position of not knowing what the record is in
10 the case.
11 MR. HERSHEY: Well, the record specifically
12 is what is attached to Exhibit C of my motion, Your Honor.
13 THE COURT: Mr. Kabusk, do you have any
14 objection to the Court's taking judicial notice for
15 purposes of the record in this case of the items contained
16 in that exhibit?
17
18
19
MR. KABUSK:
THE COURT:
No, Your Honor.
All right.
I will just note
it.
And we will enter this order, if there is nothing
20 further:
21 AND NOW, this 27th day of June, 2002, upon
22 consideration of Petitioner's License Suspension Appeal,
23 and following a vacation of the order entered by this Court
24 on June 12, 2002, upon motion of the Respondent, premised
25 upon the need to make a more complete record for purposes
8
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1 of appellate review, and following a hearing held on this
2 date, at which the record was supplemented for this
3 purpose, pursuant to an agreement of counsel, the record is
4 declared closed, and it is further ordered as follows:
5 For the reasons stated in the opinion of
6 this Court which accompanied the Order of Court dated June
7 12, 2002, the Petitioner's License Suspension Appeal herein
8 is sustained to the extent that the portion of the
9 Department of Transportation's April 26, 2001, notice
10 requiring petitioner to equip his vehicles with ignition
11 interlock systems as a prerequisite to scheduled
12 restoration of his driving privilege is rescinded. The
13 said opinion of this Court is incorporated herein by
14 reference and made a part hereof,
15 Mr, Kabusk and Mr. Hershey, is that order
16 satisfactory to both of you so far as disposition of the
17 case at this level?
18
MR. KABUSK: Yes, Your Honor.
19 MR. HERSHEY: Judge, the only other issue
20 that I think we need to address, and maybe Mr. Kabusk can
21 shed some light on this, we have a supersedeas on the
22 entire aspect of that official notice from PennDOT,
23 including the one year suspension for the DUI conviction.
24 That's what this Court granted in the original petition,
25
THE COURT:
I doubt that I did that.
I'm
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not sure.
Did I enter an order granting a supersedeas?
MR. HERSHEY: Yes, you did, Your Honor, and
3 I have a copy. I'll hand it up. It's clipped to the top
4 of myappeal.
5 THE COURT: Well, I simply signed an order,
6 I believe, that was provided by your office.
7
8
9
MR. HERSHEY: Correct.
THE COURT: All right,
MR, HERSHEY: The point I'm getting at, Your
10 Honor, is this case is -- this issue in this case is
11 sufficiently unique, and because the Department has
12 consistently appealed these issues to the Commonwealth
13 Court since Schneider is up on allocatur; is that correct?
14
15
MR. KABUSK: Yes, it is.
MR. HERSHEY: My concern is that if the
16 supersedeas does not continue on the one year suspension
17 for the DUI conviction, I may be in a lose, lose situation
18 with my client simply because of inaction by the appellate
19 courts.
20 In other words, what may happen is a year
21 from now if the Court does not grant the supersedeas
22 pending final resolution on the Commonwealth's appeal in
23 this case, then the appellate courts may not reach the
24 issue of the legality of the guardian interlock at the time
25 when my client's one year suspension is up, and he will
10
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1 then be in limbo without any recourse.
2 If that decision is not made within the next
3 12 months, then my client will be in a position where he
4 can neither put the interlock in his vehicle nor be free of
5 the interlock requirement nor get his license back. So
6 I'm asking the Court to enter an order with respect to a
7 to continuing the supersedeas on the original suspension
8 until such time as this case is resolved by the appellate
9 courts.
10
11
12
THE COURT: Mr. Kabusk.
MR. KABUSK: I'm not sure if now is the
proper time to be asking for that.
Second, is I believe
13 there is no contest regarding the one year suspension. So
14 the Department would want that year served. If the Court
15 issues an order clarifying a supersedeas that there is no
16 supersedeas for the one year suspension or there is the
17 order which you issued regarding the imposition of the
18 interlock may be a -- in other words, that he serves the
19 year, when it comes up there should be the order that he
20 doesn't have to have the ignition interlock imposed.
21 THE COURT: Mr. Hershey, does your client
22 have his license back at this point?
23 MR. HERSHEY: He served his chemical test
24
refusal suspension. His license has been returned.
He
25 had a chemical test refusal suspension associated with this
11
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1 underlying criminal case which predated the one year
2 ~uspension for the conviction.
3
THE COURT:
So the Department has returned
4 his license pursuant to the paragraph in the May 30, 2001,
5 order entered by this Court, which reads, quote, pursuant
6 to Section 1550(b) of the Pennsylvania Motor Vehicle Code,
7 Petitioner's appeal shall act as an automatic supersedeas
8 in -- sorry, shall act as an automatic supersedeas, and
9 Petitioner's operating privileges shall not be suspended
10 pending a final determination in this matter, unquote.
11 MR. HERSHEY: That's my understanding, Your
12 Honor.
13
14 to do?
15 MR. HERSHEY: What I'm asking you to do,
16 Your Honor, is to continue the supersedeas on the one year
THE COURT:
Now, what are counsel asking me
17 suspension pending the outcome of the appeal of this case
18 before the Commonwealth Court.
19 THE COURT: By the one year suspension, are
20 you referring to the initial year suspension resulting from
21 his conviction?
22
23
24
25
MR. HERSHEY: Yes.
THE COURT: Mr, Kabusk.
MR. KABUSK: Your Honor, I don't believe
that's a proper request at this particular time.
This
12
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1 Court can dismiss the appeal or sustain the appeal. If an
2 appeal is taken, then the petitioner could request a
3 supersedeas. I don't believe now is the correct time to
4 be asking for that.
5 MR. HERSHEY: Maybe I'm putting the cart
6 before the horse, Your Honor. I think Mr. Kabusk is
7 accurate in his statement, and I guess what I would
8 indicate to the Court is that it would be my intention to
9 apply for a supersedeas in the event that PennDOT files a
10 notice of appeal. The Commonwealth Court normally would
11 ask me to make that request at the trial court level, in
12 any event. So I would have to come back here first.
13
THE COURT:
All right.
If there's no
14 further action requested by this Court at this time, the
15 proceedings are adjourned.
16 (Whereupon, the proceedings concluded at
17 2:32 p.m.)
18
19
20
21
22
23
24
25
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CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
Michele A. Eline
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
o Lt, 2.21 2-002-
Date
WL-fJ
J Wesley Ole
N nth Judicial
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