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HomeMy WebLinkAbout99-076340 aft qPp LF! PAMELA FORRESTER GOTWALT Petilioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. '] 9. 71. 3y CL..,a -1 0 - ORDER AND NOW, this 076' day of kr? / 9 S r , upon consideration of the within Petition, it Is hereby ordered and decreed that a hearing be held on the .? 1,1 day of ''/1!a/Le-4 , 0?'000 , at i'(/So'clock in Courtroom ?) , Cumberland County Courthouse, Harrisburg, Pennsylvania. Notice of said hearing shall be given by Petitioner's attorney,)oy certified mall at least sixty days prior to the date of the scheduled hearing to the Departmefit of-Transportation. By the ouit, j J. I / 1 y? J "/" L RKs -?,_ - - s--- - -?? PAMELA FORRESTER GOTWALT Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA LICENSE SUSPENSION APPEAL AND NOW, this 22n° day of December, 1999, comes Pamela Forrester Gotwalt, by her attorneys, Mancke, Wagner, Hershey & Tully, who respectfully represent; 1. Your Petitioner, Pamela Gotwalt, Is an adult Individual residing at 1391 Letchworth Road, Camp Hill, Pennsylvania. 2. Your Petitioner has received notice from the Department of Transportation of a license suspension dated November 22, 1999 Indicating a suspension of one year for violation of §1547 of the Vehicle Code for an alleged refusal to submit to a chemical test, a copy of which is attached hereto and made a part hereof as Exhibit A. 3. The facts and occurrences which load to the alleged refusal occurred in Cumberland County, Pennsylvania. 4. Said suspension is illegal, unjust and Improper for reasons which include, but are not limited to, the following: a. there was no valid, knowing and/or intelligent refusal; b. impermissible burdens were placed upon Your Petitioner which nullify any alleged refusal; c. Your Petitioner was given various pre-conditions which were improper, nullifying any alleged refusal; d. Your Petitioner was denied a request to go to the bathroom and/or request whether a bathroom was available and was denied a bathroom and/or deliberately mislead as to the existence of a bathroom; e. Your Petitionerwas not timely requested to take a chemical test by a police officer; Your Petitioner was not advised of the consequences of the alleged refusal by a police officer or given such notice by a police officer; g. Your Petitioner was advised that she would lose her license only if a police officer was involved in making a request to take a chemical test and at no time did a police officer make a timely request that Your Petitioner take a chemical test of her breath; h. the instructions of the booking agents were confusing, misleading and detrimental to the taking of the chemical test by Your Petitioner and Your Petitioner at no time refused to take the chemical test; i. Your Petitioner was given confusing, misleading and detrimental instructions on the use of the breath test equipment including, but not limited to, the use of the mouthpiece; j. the warnings of the booking officer were inadequate, untimely, misleading and/or confusing; k, there was no valid refusal to take a chemical test; 1. there were no reasonable grounds to request that the test be taken; and m. no notice of the alleged refusal was given by a police officer as required by §1547. WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to determine the validity of the license suspension outlined in Exhibit A. submitted, Jo B. Monckd?Esq., ID No. 07212 Manc Wagner, Hershey & Tully 2233 N. F?ont Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner Dated: December 22, 1999 VERIFICATION r11, 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 unsworn falsification to authorities. Date Pamela Gotwalt 11/23/99 01:59 FIX 001 COMMONWEALTH OF PENNSYLVANIA ---- DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 ---- NOVEMBER 22, 1999 ---- PAMELA F GOTWALT 99319L112136450 (101 1391 LETCHWORTH RD 11/15/1999 20758692 CAMP HILL PA 17011 10/11/1964 Door Motorist: As a result of your violation of Section 1547 of the Vehicle Code. CHEMICAL TEST REFUSAL an 10/24/19791 Your driving privilege is being SUSPENDEn 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 cardl 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 nL16LC Form or a swarm 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 avan if you do not surrender your license, Credit will not begin until all current driver's license product(s1, the DL16LC Farm, or a letter 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 12/27/1999, 12:01 a.m. %%%%X XX X Y%%XXX%X X#X# X# X###Xi##jf######7f##3R####3f####IE####*#######MIE#3F#?r (WARNING: If you are convicted for driving while your license Is Isuspended, the penalties will boi not less than 90 days imprison-I Iment and a 1,000 fine and an additional 1 year suspension. I i##X##)IXXXXXXXXXXXX%XXXXXXX%XXXXXXXXIXXNNNXXXX%XXXXXXxXX%XXXXXXXIEXXX]E EXHIBIT ALL•STATE' WTERNATIONAL 11/23/99 01:59 F.A1 993196112138450 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, NOVEMBER 22, 1999. If you file an ap- peal in the County Court, the court will give you a time- stamped 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 HARRISBURG, PA. 17104-2516 Sincerely, Rebecca L. Bickiey, Director Bureau of Driver Licensing coal SEND FEE/LICENSE/DL-16LC/TO: Department of Transportation Bureau of Driver Licensing P.D. Box 68693 Harrisburg, PA 17106-8693 r- I02 INFORMATION (71DO AM TO 9:00 PM) IN STATE 1-800-932-4600 OUT-OF-STATE 717-391-6190 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-391-6191 THAT IOINAL l W O10CEE - MANCKE,WAGNER,HERSHEY&TUDEC 2 3 i999? ro.. OCdlD - WIiMN 1M1?N,Y w" . woe t . ? r. -i r r r i :. .. .. ..... ir .:.... .. .... :.r".. r i PAMELA FORRESTER GOTWALT Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT Ol TRANSPORTATION Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7634 CIVIL TERM PETITIONER'S BRIEF IN SUPPORT OF LICENSE SUSPENSION APPEAL On October 24, 1999 at about 1:14 a.m., Pamela Gotwalt was arrested by Camp Hill OfficerJohn K. Kidman for driving under the influence of alcohol. After the arrest, she was taken to the Cumberland County Booking Center in Lower Allen Township. Officer Kidman has testified that the booking agents did not make him part of the implied consent process and that he was supposed to leave her at the center and not remain. He did not participate in the implied consent procedures. He has testified at the preliminary hearing before District Justice Manlove (December 22, 1999) as follows: Q: Now did you at any time, when you were with her, request a breath test? A: No. Q: And did you everadvise herof the implied consent law? A: No, 1 did not. The booking agent did. Q: Okay, were you present when that was done? A: No. Q: Did you ever give her her Miranda rights? A: No, I did not. Q: Did you ever notify her of her consequences of any refusal? A: No I believe the booking agent did after he read her the implied consent law. Q: Did you notify Penn Dot of any refusal? A: I believe the booking agent did that. Q: I'm just asking whether you did it? A: I personally did not, no.... Q: Was my client cooperative to you at all times? A: Yes. At the center, Pamela Gotwalt attempted to blow into the unit and received several insufficient readings. The evidence will reveal that the booking officer's instructions on how to use the mouthpiece contributed to the inability to properly activate the t to use the bathroom after attempting to give a sufficient sample It. LEGAL PRINCIPLES 1. The Vehicle Coda requires the "police officer" to inform the motorist that she would lose her license for one year and the police officer must notify the Department of the refusal. See 75 Pa.C.S.A. §1547(b). The Vehicle Code is very specific as to the requirements of a ooiice officer in an implied consent refusal. The Vehicle Code requires: (b) Suspension forrefusad- (1) ffany person placed under arrest for a violation of section 3731 (relating to driving under 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 fora period of 12 months. (2) "al tyofthe notice officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing. [emphasis added] 75 Pa.C.S.A. §1547(b). While the Supreme Court has held that a police officer need not be the person who requests the test (where the officer was present), the statutory requirement that the police must inform the motorist of the one year penalty and inform Penn Dot of the refusal remains. - gM 999hibone v. Penn Dot, 669 A.2d 326 (Pa. 1995)'; 75 Pa.C.S.A. §1547(b). 'The concurring opinion In which three otherjustices joined outlines how a booking center should operate and makes it clear that 'after the officer has transported the arrestee and hat given the sooroori°t waminas, the officer then relays the necessary information to the individuals in charge of the center [emphasis added] and he is free to return to patrol duties.' 3 In the instant case, the police officer did not inform the motorist of the one year penalty and did not inform Penn Dot of the refusal. In fact, the officer was not even present during the implied consent part of processing. As such, the suspension violates 1547. Certainly, the booking agent does not qualify as the police officer. see Snyder v Penn pQt, 640 A.2d 490 (Pa.Cmwith.1994); Commonwealth v. Roose, 551 Pa. 410,710 A.2d 1129 (Pa. 1998). The suspension must be reversed for failure to comply with the statutory mandates. As noted by the Commonwealth Court: The licensee also alleges that DOT failed to establish that the officer warned the licensee of the consequences of a refusal to submit to the blood test. Section 1547(b)(2) of the Vehicle Code provides that "[1Y 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." 75 P.S. §1547(b)(2). This unambiguous statutory requirement imposes an affirmative duty on the officer to convey the certainty of suspension, mandated by statute upon a licensee's refusal to submit to a chemical test, and demands strict compliance. Peooelman v Commonwealth. 44 Pa.Commonwealth Ct. 262, 403A.2d 1041 (1979). The officerhere tested that he did not warn the licensee and that the licensee's flight prevented his transport to a more suitable environment in which the request for a blood test and the relevant warnings would have been provided. O.R. at 5.9, R.R. at 13a-17a. However, the officer's testimony as to his future conduct is an insufficient evidentiary, foundation for a finding that the officer fulfilled the statutory duty to warn a licensee of the consequences of a refusal to submit to a chemical test. Further, we specifically reject the trial court's application of the frustration of purpose doctrine to establish an officer's compliance with his statutory duties. Accordingly, the order of the Court of Common Pleas suspending the drivers privileges for one year is reversed. r- -7 McCamey v. Commonwealth, 144 Pa.Cmwlth. 292, 601 A.2d 471 (1991), app, denied 532 Pa. 647, 614 A.2d 1144. 2. The actions of the booking officer in misadvising the motorist on the use of the mouthpiece and the failure to allow the motorist to use the bathroom require a reversal of the suspension. See Barrier v, Penn Dot, 19 D&C4th 523 (Dauph. 1993); Carlin v. Penn Dot, 739 A.2d 656 (Pa.Cmwlth. 1999). The evidence will reveal that Pamela Gotwalt repeatedly attempted to blow into the breath test machine. Although there were readings, the readings revealed insufficient samples. The booking officer, however, during the instruction phase misadvised Ms. Gotwalt on the use of the mouthpiece, causing the difficulty in blowing into the unit. Further, the booking officer denied Ms. Gotwalt's request to go to the bathroom. Ms. Gotwalt will testify she was attempting to provide sufficient samples to avoid a year loss of license. The booking officer's advice that she was to put the mouthpiece into her mouth halfway was erroneous and prevented proper operation of the machine. Under the circumstances of this case, the motorist should not have received a one year loss of license for refusal. In Barrier v. Penn Dot, 19 D&C4th 523 (Dauph. 1993), Judge Joseph Klinefelter of the Dauphin County Court reversed a suspension where the booking officer contributed to the problems of the motorist blowing into a breath test device. Judge Klinefelter, rejecting Penn Dot's conclusion that any failure to complete a breath test constitutes a refusal, noted as follows: 5 The troublesome words in the above legislation are "and refuses to do so. " Recent decisions of our Commonwealth Court have adopted the position that a failure to provide an adequate breath sample constitutes a per se refusal, regardless of any good faith effort on the part of the motorist to comply with the request.... ... If the trial court is to apply the above language in a mechanical fashion there hardly seems any purpose in having a hearing on the matter As Judge Pellegrini noted in a well reasoned dissent, equating "refusal to do so" with "failure to complete the test" produces an oxymoronfc result. Id. at 493, 593 A.2d at 937. Of course, no matter how much a trial judge agrees with the approach applied by a dissenting judge in an appellate court, we are obliged to apply the law enunciated by the majority. That brings us to the present case.... ... We find that the lack of clarity in Mr. Benner's instructions was a primary cause of the failure to obtain a valid test. If the licensee makes a conscious effort to comply but is unsuccessful because of operator failure, there can be no refusal. See e.g., PennDOT v. Marion, 109 Pa. Commw. 299, 530 A. 2d 1053 (1987).... ... The record establishes, and the videotape confirms, that the 95 pound subject of this arrest was more than double (.215) the presumptive level of intoxication. She was emotionally distraught over the arrest and frequently distracted during most of the testing process. Our courts have long recognized that a physical inability to complete the test is a valid defense to a suspension under section 1547(b). While a motorist's bare assertion of physical incapability is insufficient, medical evidence is not a per se requirement. PennDOT v. Rogers, 110 Pa. Commw. 453, 532 A.2d 935 (1987); PennDOT v. Day, 93 Pa.Commw. 49, 500 A.2d 214 (1985). In this case, we believe that the Commonwealth's own evidence, the videotape, provides ample evidence to allow petitioner to meet her burden of proof in this regard. As we stated on the record at the conclusion of the hearing, we are not able to conclude in good conscience after a careful review of the videotape in evidence that this motorist 'refused" to provide the breath sample required by section 1547. That drunk drivers are a menace on our highways is hardly contested, that scientific tests to determine blood/alcohol levels are desirable is not an issue, that appropriate sanctions should follow noncompliance with the implied consent law is not in dispute, that those who would manipulate or feign compliance with the procedure should not escape these sanctions is also not an issue. But to impose a suspension on the regimented basis demanded here by PennDOT could not have been the intent of the general assembly when it enacted this legislation. Be erv. Penn Dot, 19 D.&C.4th 523 at 524, 525, 526, 527 (Dauph. 1993); see als , Penn Dot V, Marion, 530 A.2d 1043 (Pa.Cmwlth. 1987); McDonald v Penn Dot, 708 A.2d 154 (Pa.Cmwlth. 1998). Further, the evidence will reveal that the booking officer denied the motorist's request to go to the bathroom. There was no legitimate reason for the denial. As noted in Carlin v Penn Dot, 739 A.2d 656 (Pa.Cmwith. 1999) (reversing a license suspension): With regard to a driver's physical inability to take the test, each case must be decided on its individual facts. Department of Transportation. Bureau of Traffic Safety v Dav 500 A.2d 214 (Pa. Cmwlth. 1985). Medical evidence of a driver's physical incapacity is note pff m requirement. Department of Transportation Bureau ofDdvarUmnci g v Groscost. 596 A.2d 1217 (Pa. Cmwlth. 1991). Where a driver's physical incapacity is obvious, there is no need for the driver to present medical evidence to prove it. P&Quaide v. Department of Transportation Bureau of Driver. Licensing. 647 A.2d 299 (Pa. Cmwlth_ 1994). In determining the obviousness of a drivers incapacity, a court does not "leave [its] common sense at home." A at 302. There is no question in this case that the trial court believed that Carlin actually needed to use the bathroom. At the hearing, the trial court stated that it accepted as a fact that Carlin had to go to the bathroom. The trial court also accepted as a fact that Carlin needed to use the bathroom for an hour before taking the breathalyzer test. Nevertheless, the trial court held that it could not sustain Carlin's license suspension appeal based on his need to urinate because Carlin presented no medical evidence and because there is no case law permitting such a holding absent competent medical evidence. While this court would normally require competent medical evidence to prove physical incapacity, the physical incapacity in this case does not involve a medical question at all. The only issue here is whether the licensee was physically incapacitated by his need to urinate, i.e., by his need to perform a normal bodily function. It would be ludicrous to require medical evidence to prove such a physical incapacity when lay people know, without visiting a doctor, the physical effects of needing to use the bathroom when a bathroom is not available. Guided by common sense, then, we hold that Cadin was not required to present medical evidence in this case because the reason why he could not complete the breath test was obvious. The trial court erred in holding otherwise. Accordingly, we reverse. The footnotes in the Carlin Opinion are also relevant: e Quite simply, Carlin could not breathe out with force into a breathalyzer tube foran extended period of time while holding Jr, his urine. The difficulty of such a task is obvious. ' We also note that, by refusing to allow Carlin to use the bathroom, the police officer imposed an impermissible burden on Carlin in the taking of the breath test. 2w Department of Transportation v. Renwick 543 Pa. 122, 669 A. 2d 934 (1996); L= v. Department of Transportation. Bureau of Driver Licensing 734 A.2d 478 (Pa.Cmwlth. 1999). The regulation at 67 Pa. Code §77.24(a) states that a person to be tested with breath test equipment must be kept under observation by a police officer for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test. During that time, the person may not ingest alcoholic beverages or other fluids, regurgitate, vomit, eat or smoke. 67 Pa. Code §77.24(a). The regulation does DDt prohibit a person from urinating. We note that during the hour from Carlin's arrest to the initial test, there were three consecutive twenty-minute periods. Certainly, 8 there was ample time to have addressed Carlin's personal needs during that hour and still adhere to the regulatory requirements for observation. Here, the officer required that Cadin perform the breath test while holding his urine. Because there is no legal prohibition against going to the bathroom prior to a breath test, this was an impermissible burden to impose upon Carlin. There is no evidence before as to suggest that Carlin would not have completed the test but for this burden, thus, Carlin's failure to complete the test does not constitute a refusal. ,$a =. Moreover, by imposing this impermissible burden upon Carlin, the officer failed to perform his duty as a certified breath test operator to obtain two breath samples. SaeV Pa. Code §77.24(b)(1). Under the circumstances of the case, the suspension should be reversed. submitted, L 'oh Mancke, Esq., ID No. 07212 Man I e, Wagner, Hershey & Tully 2233 N. Front Street, Harrisburg, PA 17110 Dated: X 717-234-7051, Attorney for Petitioner ? -$B- -'-- - - ff?:- Y .4.. , {.. 4 r .L; S-', :J. ? 1? :,.}? 1. 1 t _ l- ! F f ? : t 1 ,Y ' ' 1 ? ? ?? + . ! 1 } ?. t 1 y ?. ? S l r 1 ;. - . i% ? ?: •r '??.4;; ' . Y .. : .. . 4 _ a t yj F r t.. '! '? p1 i ' ? y ' ?' ? . 1 ? rt ?r,r ? ;' r 4 ? ? :. r ^Ea?.?r z '? J'. . ? '' PAMELA FORRESTER GOTWALT, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, : Respondent 99-7634 CIVIL TERM ORDER OF COURT AND NOW, this 2nd day of March, 2000, this matter having been called this date on the appeal from a license suspension by Pamela Forrester Gotwalt, under Section 1547 of the Vehicle Code, and the Commonwealth acknowledging that the warnings in this case were not administered by a police officer, and that it cannot meet its burden of proof, the appeal is sustained. The suspension imposed by the Department is reversed By the Court/, Edgar Ba ley, J. Matthew X. Haeckler, Esquire O For the Commonwealth John Mancke, Esquire 3 ??g For the Defendant it C? it ??