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HomeMy WebLinkAbout03-2891HARRY LEE WILLIAMS Pe~oner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA :NO. / COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent LICENSE SUSPENSION APPEAl AND NOW, Ibis ~J-h day of June, 2003, comes Harry Lee Williams, through his attorneys, Mancke, Wagner & Spreha, who respectfully represent: 1. Your Petitioner is an adult individual residing at 760 State SI]'eet, Lemoyne, Cumberland County, Pennsylvania. 2. Your PeflJoner has received a notice of license suspension for a violation of {}1547 allegedly occurring on Apdl 28, 2003 in Lower Allen Township, Cumberland County, Pennsylvania. A copy of said license suspension notice is attached hereto and made a part hereof as Exhibit A. 3. Your Petitioner believes, and therefore avers, that said license suspension is illegal, unjust and improper for reasons which include, but are not limited to, the following: (a) there was no knowing and intelligent refusal; (b) Your Pelfioner was confused over his fights and obligations relative to the license suspension; (c) the DL-26, if read to Your Pe~oner, was misleading, improper and confusing; (d) Your PeflJoner was mislead and confused concerning the consequences of any alleged refusal; (e) (t) Your Petitioner, based on the facts of the case, had a right to an attorney and requested to discuss his case with an attorney; there was no proper warnings given or a valid request to take a chemical test; (g) procedures utilized did not comply with §1547; (h) there was no valid refusal as Your Petitioner requested an attorney when facts and cimumstances of his individual case warranted the right to an attorney which request was denied; (i) the boddng officer and/or the police officer misinformed Your Petitioner as to the consequences of any alleged refusal; (j) any warnings as to the consequences were untimely, misleading and/or inadequate; and (k) the police officer did not properly advise Your Petitioner as to his rights and/or oblig~ons pursuant to 75 Pa.C.S.A. §1547. WHEREFORE, Your Petitioner prays Your Honorable Court to schedule a hearing to determine the validity of the license suspension o~ined in Exhibit A. Dated: R~mitted, John~. Mancke, Esq., ID No. 07212 Mancke, Wagner & Spreha 2233 N. Front Slmet, Harrisburg, PA 17110 717-234-7051, Attorney for PetilJoner MANCKE, WAGNER & SPREHA VERIFICATION I hereby ve~fy that the statements made in this document are true and correct. I understand that false s~ai~ments herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Maii Date: MAY 22, 2005 HARRY LEE WILLIAMS 760 STATE ST LEMOYNE PA 17043 WID # 031356111205479 001 PROCESSING DATE 05/15/2003 DRIVER LICENSE # 23273554 DATE OF BIRTH 01/27/1973 LICENSE IN BUREAU Dear MR. WILLIAMS= This is an Of~tcla[ Notice o~ the Suspension of your Driving Privilege as authorized by Section [547 of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 04/28/200:5= · Your driving Privilege is SUSPENDED fop a Period of YEAR(S) e~fectlve 03/30/2015 at 12:01 a.m. This suspension is in addition to any other suspensions already on your record. WARNING: If you are convicted of driving while your license is suspended/revoked the penalties wili be a MINIMUM of 90 days imprisonment AND a 91,000 fine AND your driving Privilege will be suspended/revoked for a MINIMUM 1 Year period APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within :50 days of the maii date, MAY 22, 2003, of this letter. Zf You t'tle an appeal in the County Court, the Cou~t wiLL glve you a time-stamped certified copy ot" the appeal. In order for Your appeal to be valid, you must send this t/me-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 OFFZCZAL NOTZCE OF SUSPENSZON. IiEXHIBIT 031356111205~79 Sincerely, Rebecca Lo Bickley, D/rector Bureau of Driver Licensing INFORMATION 7=00 a.m, to 9=00 p,m. IN STATE 1-800-932-~600 TDD [N STATE OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE WEB SITE ADDRESS www.dot.state.pa.us 1-800-228-0676 717-$91-6191 HARRY LEE WILLIAMS Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent ORDER AND NOW, this m~ day of ,2003, upon consideration of the within PeflJon, it is hereby ordered and decreed that a headng be held on the '~ ~a/y of.~J~~, 2003, at ~)'clock in Courtroom ~ , Cumberland County Courthouse, Carlisle, Pennsylvania. No~Jce of s~id hearing shall be sent by se~ mail to the Department of Transportation by Pe~Joner's attomey at least sixty days prior to the date of the heating. By the Court, Disl~ib~on: Prothonotary's Office John B. Mancke, Esq., 2233 N. Front Sffeet, Harrisburg, PA 17110 PA Dept. of Transport~on, Office of Chief Counsel, 1101 S. Front Street, Harrisburg, PA 17104 / HARRY LEE WILLIAMS, PETITIONER COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : RESPONDENT : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 2003-2891 LICENSE SUSPENSION APPEAL ORDER AND NOW, this ¢;'~ day of .b~ ~ ~'~ ,2003, upon consideration of the Department's Motion to Continue, the Motion is hereby granted, and the Matter is Continued and rescheduled for hearing on the ~ ,r~ day of ~ ~ ,~o~ at /0;~ ~. in Courtroom No. 3, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT DISTRIBUTION: .,,'~eorge H. Kabusk, Esquire, PennDOT, Riverfront Office Center-3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 0,ffohn B. Mancke, Esquire, 2233 North Front Street, Harrisburg, PA 17110 HARRY LEE WILLIAMS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2891 CIVIL TERM RE: PETITIONER'S LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this _L~'~day of December, 2003, upon consideration of Petitioner's License Suspension Appeal and after hearing the oral arguments of both parties, it is hereby ORDERED that Petitioner's Appeal is refused. ,,,'John B. Mancke, Esquire Mancke, Wagner & Spreha 2233 N. Front Street Harrisburg, PA 17110 Attorney for Petitioner ,,/George H. Kabusk, Esquire Office of Chief Counsel Vehicle & Traffic Law Division Harrisburg, PA 17104 Attorney for Respondent By the Court, HARRY LEE WILLIAMS, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2891 CIVIL TERM RE: PETITIONER'S LICENSE SUSPENSION APPEAl HOFFER, P.J. Factual Back.qround and Procedural History Petitioner Harry Lee Williams appeals from two notices issued by the Commonwealth of Pennsylvania Department of Transportation ("PennDot"). On May 22, 2003, PennDot notified petitioner that his operating privilege was being suspended for one year as a result of his violation of Section 1547 of the Vehicle Code. Petitioner violated Section 1547 on April 28, 2003 when he refused to submit to a breathalyzer test subsequent to his arrest for Driving Under the Influence? PennDot issued ~ The Court finds that Petitioner refused the breathalyzer test. Petitioner argued at his appeal hearing that when arresting Officer Gelnett was in the middle of reading the DL-26 form to Petitioner, Petitioner stated "1 submit." Petitioner reasoned that this statement represented acquiescence to chemical testing. Yet, when Officer Gelnett finished reading the DL-26 warning in its entirety, Petitioner clearly refused to submit to the test. The police officer had no duty to stop reading the DL-26 to the Petitioner before the warning was completed. It is sound procedure for an officer to render full readings of the DL-26 to drivers so that the drivers may receive the entire benefit of the warning. It is not until then that drivers can fully a second notice on May 22, 2003, informing the petitioner that his violation of Section 1547 resulted in the permanent cancellation of his probationary license. Discussion License suspension cases under Section 1547 are governed by criteria set forth in Department of Transportation v. O'Connell. 521 Pa. 242 (1989). The O'Connell court held that the Department of Transportation must establish that the driver: 1) was arrested for driving while under the influence of alcohol; 2) was asked to submit to a breathalyzer test; 3) refused to do so; 4) was specifically warned that a refusal would result in the revocation of his driver's license. Id. at 249. Petitioner argues that the police officer should have provided an additional warning regarding the cancellation of his probationary license upon refusal to submit to a breathalyzer test. However, the Pennsylvania General Assembly has already legislated regarding the duty owed by a police officer in these circumstances. Section 1547(b)(2) of Title 75 of the Vehicle Code mandates that a police officer must inform the driver that contemplate the implications of refusal. Say, for example, an officer reads the first sentence of the DL-26 and the driver says "Forget the rest. I'll take the test." Once hooked up to the breathalyzer, the driver changes his mind. The officer would not be able to count that as a fully-formed refusal because a full and proper O'Connell warning was not given. The officer would have to start all over with a new reading of the DL-26 and time is wasted. The most practical procedure is to complete the full warning before moving ahead. his/her operating privilege will be suspended upon refusal to submit to chemical testing. A proper O'Connell warning must convey the certainty of the operating privilege suspension and inform the driver that his/her Miranda rights do not apply to the context of chemical testing. See Department of Transportation v. Scott, 546 Pa. 241 (1996). Officer Gelnett testified that he read the entire DL-26 form to Petitioner. Information contained on the DL-26 form is sufficient to meet the aforementioned standards of a proper O'Connell warning. Commonwealth v. in.qram & Frain, 538 Pa. 236, 256 (1994). The Pennsylvania Supreme Court concluded that once a police officer provides an O'Connell warning to a driver, the officer has done all that is legally required to ensure the driver is fully aware of the ramifications of his/her refusal to submit to chemical testing. Scott at 254. As provided in Section 15540) of the Vehicle Code, a driver can appeal the cancellation, denial or recall of a probationary license by filing a petition for hearing with the Department of Transportation. The present appeal is not the proper forum to contest the cancellation of a probationary license because it only involves a one-year suspension of Petitioner's operating license as a result of his violation of Section 1547 of the Vehicle Code. Based on the Court's aforementioned conclusions, PennDot met its burden for a proper license suspension under Section 1547. Petitioner's appeal is denied.