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MANCKE, WAGNER. HERSHEY & TULLY
UCT ,
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74
N 7HE COURT OF COMMON PLEAS
STEVG O. FISHER (-iJMREPL-4MD GOUNTY, PENNSYLVANIA-
Pt3titi6fRr
Nd
V.
G6W6b WEALTH OF PENNSYLVANIA,
DEPARTMENT Of TRANSPOP.TATION
ROSPnndr;nt
CADER
'el 1999 unnncansid Non of the
AND NO'N, this -12 day Of
; ' j '! or
Potition, it is hnrAt;/ ordered and dncrnhd that a 110116q b0l held` on
within the
Combedand'County
l/ ?ttr;rnrl. 1999, at ?.!>? o'riocu r. Cnurtrorm zi_•
s"
COUrthOUGO, Carlisle, Pnnns`/4" a
of 7ransaortatbR
(Jatiec of said t;nariny shall hn se^.t by cnrtifnd mall to ,,he peiparrment
by Pntitionoes attorney nt +oast sixty dn'/S Prinr to thn dalr, O> th9 h 9
R-jthe Court,
.r•n?!irrrl?nrn,1???
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094
STEVE O, FISHER
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Respondent
t^
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. q - ?Uy
ORDER
AND NOW, this L3aday of lJ' 4?- , 1999, upon consideration of the
within Petition, it Is hereby ordered and decreed that a hearing be held on the I-Zday of
Ste44& 44- , 1999, at,2. o'clock in Courtroom J_, Cumberland County
Courthouse, Carlisle, Pennsylvania.
Notice of said hearing shall be sent by certified mail to the Department of Transportation
by Petitioner'e attorney at least sixty days prior to the date of the
By the Court,,'.,/'
muilYiot-
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STEVE 0. FISHER
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Respondent
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 9 9 - L
AND NOW, this day of October, 1999, comes Steve 0. Fisher, by his attorneys,
Mancke, Wagner, Hershey & Tully, who respectfully represent:
1. Your Petitioner, Steve 0. Fisher, Is an adult Individual residing at 2238 Canterbury
Drive, Mechanicsburg, Cumberland County, Pennsylvania.
2. Your Petitioner Is a licensed automobile operator in the Commonwealth of
Pennsylvania.
3. Your Petitioner has received notice of a license suspension, a copy of which is attached
hereto and made a part hereof as Exhibit "A".
4. Your Petitioner believes, and therefore avers, that said license suspension is Illegal,
Improper and unjust for reasons which Include, but are not limited to, the following:
a. your Petitioner never made a knowing and/or intelligent refusal;
b. your Petitioner did not legally refuse;
c. your Petitioner was confused concerning his rights;
d, your Petitioner was not properly and/or timely advised of his
rights and/or consequences;
e. your Petitioner Indicated that he would comply with the taking of
a chemical test;
f. your Petitioner was advised of conditions and/or requirements
that Invoked his federal and state constitutional rights to an
attorney and/or to remain silent, negating an alleged refusal.
t
g. your Petitioner was denied his federal and/or state constitutional
rights; and
h. your Petitioner was improperly asked to waive certain rights
and/or comply with certain conditions as part of the testing
process Including videotaping and audiolaping of the
proceedings.
WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to determine
the validity of the suspension outlined In Exhibit 'A*.
submitted,
n B. Mancke, Esq., ID No. 07212
M cke, Wagner, Hershey & Tully
223 N. Front Street, Harrisburg, PA 17110
Dated: l0-x-99 717-234-7051, Attorney for Petitioner
VERIFICATION
I hereby verify that the statements made in this 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 unswom falsification to authorities.
Detb
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,t• COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
SEPTEMBER 20, 1999
STEVE OLIVER FISHER 992566117807956 001
2238 CANTERBURY DR 09/13/1999
18040696
MECHANICSBURG PA 17055 12/14/1957
Dear Motorist:
As a result of your violation of Section 1547 of the
Vehicle Code, CHEMICAL TEST REFUSAL on 09/05/1999, Your
driving privilege is being SUSPENDED for a period of 1
YEAR(S).
In order to comply with this sanction you are required to
return any current driver's license, learner's permit and/or
temporary driver's license (camera card) in your possession
no later than the effective date listed. If you cannot
comply with the requirements stated above, you are required
to submit a DL16LC Form or a sworn affidavit stating that
you are aware of the sanction against your driving privi-
lege. Failure to comply with this notice shall result in
this Bureau referring this matter to the Pennsylvania State
Police for prosecution under SECTION 1571(a)(4) of the Ve-
hicle Code.
Although the law mandates that your driving privilege is
under suspension even if you do not surrender your license,
Credit will not begin until all current driver's license
product(s), the DL16LC Form, or a latter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE-
MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS
RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY.
OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS
SANCTION.
The effective date of suspension is 10/25/1999, 12:01 a.m.
¦rere**a+t?t+tre*ee**ree*rre*rr*aae+:*r*r*rr**ee*raa*e*er*r*rr**e*raexer
(WARNING: If you are convicted for driving while your license is I
Isuspended, the penalties will be: not less than 90 days imprison-[
Iment and a 1,000 fine and an additional 1 year suspension. I
:terer*eerrerrreeeerrrerrre*wrrr*rerre+:rr*rreereeer*r*rererr*errr*+:r¦
EXHIBIT
lT
utsunO MMAWITV AL
.
992566117.8,079.56 -?--
Please see the enclosed application for restoration fee in-
formation.
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date of this letter, SEPTEMBER 20, 1999. If you file an
appeal in the county Court, the Court will give you a time-
otamped certified copy of the appeal. 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
HARRISBUROA PA. 17104-2516
Sincerely,
Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/DL-16LC/T0:
Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8693
INFORMATION (7:OO
IN STATE
OUT-OF-STATE
TOD IN STATE
TDD OUT-OF-STATE
AM TO 9:00 PM)
1-800-932-4600
717-391-6190
1-800-228-0676
717-391-6191
Ir ..
STEVE 0. FISHER, : IN THE COURT OF COMMON PLEAS OF
PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
RESPONDENT : 99-6104 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this tie day of December, 1999, this appeal from a license
suspension for a period of one year, IS DISMISSED. I
By the Court,
John Mancke, Esquire
For Petitioner
Matthew Haeckler, Esquire
For the Respondent
Edgar B. Bayley-, J.
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STEVE 0. FISHER,
PETITIONER
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
RESPONDENT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 99-6104 CIVIL TERM
IN RE, LICENSE SUSPENSION APPEAL
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., December 22,1999:-
The Department of Transportation suspended the driving privilege of Steve 0.
Fisher for a period of one year for his refusal, pursuant to the Vehicle Code at 75
Pa.C.S. Section 1547(b)(1), to take a breath test following his arrest for driving under
the influence. A hearing was conducted on December 13, 1999. We find the following
facts.
On September 5, 1999, Officer Brian Sunday of the Upper Allen Township Police
stopped petitioner for speeding at 76.9 miles per hour in a 55 mile per hour zone.
Officer Sunday told Fisher that he had a video and audio taping system In his patrol car,
and he asked for permission to record their conversation. Fisher consented. Fisher
had a strong odor of alcohol about his person and he failed one-leg stand and walk-
and-turn field sobriety tests. When asked how much he had to drink, Fisher said "not
enough that I couldn't make it home." Fisher was then placed in a patrol car where he
99-6104 CIVIL TERM
was informed of his rights under the Implied Consent Law and asked by Officer Sunday
to take a breath test. Fisher told the officer that he did not understand the instructions.
The officer then took him to a booking center.
Upon arrival at the center, Officer Sunday turned Fisher over to Agents Peter
Beauduy and Kathleen Cook. Fisher was immediately confrontational, argumentative
and uncooperative. Cook turned on a video and audio taping system without telling
Fisher although there were numerous signs in the booking center advising of the
system., Fisher asked Agent Beauduy if he could call an attorney. Beauduy told him
that he was not entitled to an attorney until after the processing was completed. Fisher
asked Beauduy if the taping system was on and Beauduy told him that it was not.
Beauduy did not know at that point that the taping system had been activated by Agent
Cook, and although Cook heard Beauduy tell Fisher that the system was not on she did
not correct the error until later during the proceeding. Fisher was then advised of his
Miranda rights.' He told Agent Cook that he did not understand those rights. He never
waived his rights. Agent Cook then advised Fisher of the Implied Consent Law. Fisher
repeatedly said that he did not understand what she told him and he refused to take a
test. Agent Cook noted the refusal. She then asked Fisher a series of questions which
she wrote on an intoxication report.
' Agent Cook testified that when an arrestee is uncooperative she immediately
turns on the tape and audio system.
' Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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99-6104 CIVIL TERM
DISCUSSION
The Vehicle Code at 75 Pa.C.S. Section 1547(b) provides:
(1) If any person placed under arrest for a violation of section 3731
(relating to driving under the Influence of alcohol or controlled substance)
Is requested to submit to chemical testing and refuses to do so, the testing
shall not be conducted but upon notice by the police officer, the
department shall suspend the operating privilege of the person for a
period of 12 months.
(2) It shall be the duty of the police officer to inform the person that
the person's operating privilege will be suspended upon refusal to submit
to chemical testing.
At the hearing petitioner testified that he did not understand the relationship of
the Miranda warnings and his taking a chemical test. Before asking Fisher to take a
test, Agent Cook told him:
(y)ou are now under arrest for driving under the influence of alcohol or a
controlled substance pursuant to Section 3731 of the Vehicle Code. I am
requesting that you submit to a chemical test of your breath. It Is my duty
to Inform you that if you refuse to submit to the chemical test, your
operating privileges will be suspended for a period of one year. The
constitutional rights that you have as a criminal defendant, commonly
known as Miranda Rights, including a right to speak to a lawyer or right to
remain silent, apply only to criminal prosecutions, and do not apply to the
chemical testing procedure under Pennsylvania Implied Consent Law,
which Is a civil not a criminal procedure. You have no right to speak to a
lawyer or anyone else before taking the chemical test requested by the
police officer, nor do you have any right to remain silent when asked by
the police officer to submit to the chemical test. Unless you agree to
submit to the test requested by the police officer, your conduct will be
deemed to be a refusal, and your operating privileges will be suspended
for one year. Your refusal to submit to the chemical testing under the
Implied consent law may be introduced into evidence In a criminal
prosecution for driving under the influence of alcohol or controlled
substance.
These warnings are known as the O'Connell warnings. Commonwealth v.
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99-6104 CIVIL TERM
O'Connell, 521 Pa. 242 (1989). In Commonwealth, Department of Transportation
v. Scott, 684 A.2d 539 (1996), the Supreme Court of Pennsylvania stated:
[o]nce a motorist has been properly advised of his O'Connell warnings,
refusal to submit to chemical testing under the terms of the Implied
Consent Law will not be excused as unknowing on the basis of the
motorist's subjective beliefs regarding the interplay between the Implied
Consent Law and his Miranda rights.
Fisher was properly advised of his O'Connell warnings and he refused to submit to a
chemical test. Therefore, his telling us that he did not understand the relationship
between his Miranda rights and the Implied Consent Law is of no Import.
Citing Commonwealth v. Mclvor, 670 A.2d 697 (Pa. Super. 1996), Fisher
maintains, that while he was at the booking center, Agents Beauduy and Cook violated
the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. Section 5701 at
seq. In DIPaolo v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa. Commw. 1997), the
Commonwealth Court of Pennsylvania stated:
To sustain a license suspension under Section 1547 of the Vehicle
Code, it is DOT's burden to establish the following: (1) the motorist was
arrested for drunken driving by a police officer who had reasonable
grounds to believe that the motorist was operating, or actually controlling
or operating the movement of a motor vehicle, while under the Influence of
alcohol or a controlled substance; (2) the motorist was asked to submit to
a chemical test; (3) he or she refused to do so; and (4) the motorist was
warned that refusing the test would result in a license suspension.
Vinansky v. Commonwealth Department of Transportation, 665 A.2d
860 (Pa. Cmwlth. 1995). (Footnote omitted).
In DIPaolo, the Court stated that the validity of a motorist's arrest for driving under the
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99-8104 CIVIL TERM
Influence does not affect PennDOTs authority to suspend a driver's license for refusing
to submit to chemical testing. Likewise, even if Agents Beauduy and Cook violated the
Wiretapping and Electronics Surveillance Control Act while Fisher was at the booking
center, it would not affect this civil suspension of Fisher's driving privilege for having
refused to take a test pursuant to Section 1547 of the Vehicle Code. Accordingly, we
need not determine if the Wiretapping and Electronics Surveillance Control Act was
violated nor if the statements Fisher made to Agent Cook after he refused the test, but
while he was in custody and having not waived his Miranda rights, are suppressible in
a criminal prosecution for driving under the Influence.
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this ?2?-? day of December, 1999, this appeal from a license
suspension for a period of one year, IS DISMISSED.
By the Court,
Edgar B. Bayley, J.
John Mancke, Esquire
For Petitioner
Matthew Haeckler, Esquire
For the Respondent
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