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Home My WebLink About07-2374TED W. ARMSTRONG Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 0'7 , a 3 7 V C' ( Tu (JUDGE KEVIN A. HESS) LICENSE SUSPENSION APPEAL AND NOW, this+h day of Apf-i.l, , 2007, comes Petitioner Ted W. Armstrong, through his attorneys, Mancke, Wagner, Spreha & McQuillan, who respectfully represent: 1. Petitioner Ted W. Armstrong, is an adult individual residing at 702 Cedar Ridge Lane, Mechanicsburg, Pennsylvania and is a licensed Pennsylvania motor vehicle operator. 2. The occurrences allegedly giving rise to the suspension hereinafter occurred on April 11, 2005 in Cumberland County. 3. Petitioner was charged with a criminal complaint for driving under the influence under §3802 of the Vehicle Code and convicted of the charge on March 20, 2007 after a non jury trial before the Honorable Kevin A. Hess which conviction has been timely appealed to the Superior Court and docketed at 787 MDA 2007. 4. Petitioner has received a notice of suspension and a copy of said license suspension notice is attached hereto and made a part hereof as Exhibit A. 5. Such suspension is illegal, unjust and improper for reasons which include, but are not limited to, the following: a. there was no valid conviction for §3802 of the Vehicle Code and further, such conviction is currently on appeal to the Superior Court; b. Petitioner was misadvised about his right to a lawyer and further denied the right to a lawyer in violation of the 6th Amendment of the U.S. Constitution and Article I, §9 of the Pa. Constitution; c. the Petitioner's right to counsel, pursuant to 6th Amendment of the U.S. Constitution and Article I, §9 of the Pa. Constitution, were violated; d. §1547 and/or §3802 of the Pennsylvania Motor Vehicle Code is illegal and/or unconstitutional as follows: (i) Violation of substantive due process under the Pa. (Article I, §9) and U.S. Constitutions (5th and 14th Amendments) as being vague and overbroad facially and as applied to the Petitioner and as impermissibly delegating a legislative function to the judiciary in violation of the Pa. and U.S. Constitutions. See Commonwealth Y. Noel and Travis. 857 A.2d 1283 at 1288 (2004), concurring opinion. (ii) Act 24 of 2003, Chapter 38, §3802 and/or §1547 and their related provisions violate procedural due process under Article I, §9 of the Pa. Constitution and the 5th and 14th Amendments of the U.S. Constitution facially and as applied to the Petitioner. (iii) Chapter 38 of Act 24 of 2003, §3802 and/or §1547 and their related provisions violate equal protection guaranteed by the State and Federal Constitutions, facially and as applied to the Petitioner, in that they treat similarly situated persons differently and such different treatment is not rationally related to the protection of the public from intoxicated drivers. (iv) Act 24 of 2003, §3802 and/or §1547 (suspension of 18 months) violate the constitutional and due process protections against ex post facto laws in violation of U.S. Constitution, Article I, §10 and Pa. Constitution, Article I, §17, facially and as applied to the Petitioner and improperly provide for an impermissible retroactive application. 2 (v) The Petitioner was advised that there was no right to an attorney at the time of a request for the chemical test and such action violates the Defendants 6th Amendment (U.S. Constitution) and Article I, §9 (Pa. Constitution) right to counsel, facially and as applied to the motorist. (vi) The Petitioner was advised if he remained silent during the request process, his silence would be a refusal which statements were in violation of his right to remain silent as guaranteed by the 5th Amendment of the U.S. Constitution and Article I, §9 of the Pa. Constitution. (vii) Preventing a licensed operator from driving after one incident of imbibing alcohol above a prohibited level violates procedural due process generated by the State and Federal Constitutions. See, Commonwealth, Dept. of Transportation v. la n 684 A.2d 1060 (Pa. 1996). (viii) Act 24 of 2003, Chapter 38, violates equal protection guarantees of the Pa. and U.S. Constitutions. (ix) The Statutory Scheme of §§3802-3804 violate the 5th Amendment Due Process Clause, the 6th and 14th Amendments of the U.S. Constitution and Article I, §8 of the Pa. Constitution. e. Petitioner has an appeal from his conviction/sentence pending in the Pa. Appellate Court and the license suspension is premature and would cause irreparable harm to the Petitioner. WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to determine the validity of the license suspension outlined in Exhibit A. John B. ke, Esq., ID No. 07212 Manske, Wagner, Spreha & McQuillan 2233 N. Front Street, Harrisburg, PA 17110 Dated: 717-234-7051, Attomey for Petitioner ?I 3 VERIFICATION I hereby verify that the statements made in this document aretrue 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. 21 ? , Date Ted W. Armstrong COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: APRIL 11, 2007 TED WILLIAM ARMSTRONG WID # 070946137454462 001 702 CEDAR RIDGE LANE PROCESSING DATE 04/04/2007 DRIVER LICENSE # 23189513 MECHANICSBURG PA 17055 DATE OF BIRTH 09/25/1947 LICENSE IN BUREAU Dear MR. ARMSTRONG: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 3804E2II of the Pennsylvania Vehicle Code. As a result of your 02/07/2007 conviction of violating Section 3802C of the Vehicle Code DUI BAC .16+ on 04/11/2005: ¦ Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 03/20/2007 at 12:01 a.m. Before PennDOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefully. Even if you have served all the time on the suspension/revocation, we cannot restore your driving priv- ilege until all the requirements are satisfied. PRISON RELEASE REQUIREMENT The Court of CUMBERLAND CTY, Court Number 1293, Court Term 2005 has sentenced you to serve a prison term for this vi- olation. Pursuant to Section 1541(a.1) of the Vehicle Code, you will not receive credit for this suspension/revocation or any additional 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. EXHIBIT 070946137454462 COURT ORDER TREATMENT PROGRAM Pursuant to Section 1548(d) of the Vehicle Code, the Court of CUMBERLAND CTY , Court Number 1293, Court Term 2005 has ordered you to attend a treatment program for alcohol or drug addiction. As a result of the court order, this suspension/revocation shall remain in effect until the De- partment is notified by the above Court that you have suc- cessfully completed treatment and you are otherwise eligible for restoration of your driving privilege. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. IGNITION INTERLOCK Before your driving privilege can be restored you are re- quired by law to have all vehicle(s) owned by you to be equipped with an Ignition Interlock System. This is a result of your conviction for Driving Under the Influence. You will receive more information regarding this requirement approx- imately 30 days before your eligibility date. PROVIDING PROOF OF INSURANCE Within the last 30 days of your suspension/revocation, we will send you a letter asking that you provide proof of in- surance 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. 070946137454462 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 11, 2007, 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. Sincerely, 9;?k ?-"- Z g &),,,) Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 6:00 p.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us r-3 0- C9 °c-a, T-n co l? APR ! 6 20 TED W. ARMSTRONG : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. 0 7- 3 7 ?u t `T COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this day of 2007, upon consideration of the within Petition, it is hereby ordered and decreed that a hearing be held on the day of '20071 at//-a) o'clock in Courtroom _, Cumberland County Courthouse, Carlisle, Pennsylvania. Notice ofsaid hearing shall be sent by certified mail to the Department of Transportation by Petitioner's attorney at least sixty days prior to the date of the hearing. By the Court, J. Distribution• Prothonotary's Office .411 in B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110 r, K Dept. of Transportation, Office of Chief Counsel, 1101 S. Front Street, ! ! .E tId C- it;VIrl L001 TED W. ARMSTRONG, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 07-2374 CIVIL COM. OF PENNSYLVANIA, DEPT. OF TRANSPORTATION, Appellee LICENSE SUSPENSION APPEAL ORDER AND NOW, this 11 ~ day of July, 2007, hearing in the above-captioned matter set for July 12, 2007, is continued to Friday, November 30, 2007, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. John Mancke, Esquire For the Appellant George Kabusk, Esquire For PennDOT rim BY THE COURT, U v Vd I it tl LOOZ _}? TED W. ARMSTRONG, Petitioner vs. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-2374 CIVIL LICENSE SUSPENSION APPEAL ORDER AND NOW, this 29, day of November, 2007, following telephone conference with counsel, hearing herein is continued and the matter to be rescheduled at the request of either party. BY THE COURT, Mancke, Esquire For the Petitioner ?ieorge Kabusk, Esquire For PennDOT :rlm V T l j t)i= T} ~~K?T~Y ?8l8 MAY t 2 AM $~ U8 TED W. ARMSTRONG Petitioner v. p~'i~tVP IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.07-2374 CIVIL COMMONWEALTH OF PENNSYLVANIA, (JUDGE KEVIN A. HESS) DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent PRAECIPE TO WITHDRAW To the Prothonotary: Please mark the above-captioned license suspension appeal withdrawn. Dated: May 12, 2010 Res ctful ubmitted, John B. ancke, Esq., ID No. 07212 Mancke, Wagner & Spreha 2233 N. Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for