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HomeMy WebLinkAbout07-3242 JEFF ALAN CORNMAN, : IN THE COURT OF COMMON PLEAS PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA VS. RE: STATUTORY APPEAL PETITION -CHEMICAL TEST REFUSAL COMMONWEALTH OF Q ~,_ 3 ~-Ya c1 •~~ PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DOCKET NO: CV 2007 BUREAU OF DRIVER'S LICENSING, RESPONDENT OPERATING PRIVILEGE SUSPENSION APPEAL TO THE HONORABLE JUDGES OF SAID COURT: AND NOW, comes the above-named Petitioner, Jeff Alan Cornman, by and through his Attorney, Shawn M. Curry, Esquire, and hereby appeals from a Notice of Suspension issued by the Pennsylvania Department of Transportation, Bureau of Driver's Licensing, and avers the following in support thereof: 1. This Court has jurisdiction over this case by virtue of 42 Pa.C.S.A. §933(a) and 75 Pa.C.S.A. § 1550(a). 2. The Petitioner is Jeff Alan Cornman, Pennsylvania Operator Number 22601135, whose place of residence is 10 Mountain Road, Dillsburg, PA 17019, with a date of birth of January 6, 1972. 3. Respondent is the Bureau of Driver's Licensing of the Commonwealth of Pennsylvania, Department of Transportation, which has its principal place of business at the Riverfront Office Center, 1101 South Front Street, Harrisburg, Pennsylvania. 4. The Appeal is taken from an Official Notice bearing a mailing date May 1, 2007. With that Notice the Bureau of Driver's Licensing notified Petitioner that it was suspending his privilege of operating a motor vehicle for the period of eighteen (18) month(s), effective June 5, 2007, at 12:01 a.m., pursuant to Section 1547(b)(1)(ii) of the Pennsylvania Vehicle Code, as a result of an alleged refusal by Petitioner to submit to chemical testing on March 31, 2007. A true and correct copy of the Bureau's Notice of Suspension is appended to this Petition as Exhibit «A„ 5. The eighteen (18) month suspension of Petitioner's operating privilege is improper and illegal because: a. Petitioner's alleged refusal occurred incident to his being charged with driving under the influence, as a first offense; thus, the eighteen (18) month suspension pursuant to Section 1547(b)(1)(ii) of the Pennsylvania Vehicle Code is not proper. A true and correct copy of the Police Criminal Complaint is appended to this Petition as Exhibit "B." b. The procedural prerequisites that law enforcement must follow in order to obtain a valid sample were not met in this case. 6. The Petitioner requests relief pursuant to 75 Pa. C.S.A. § 1550 (b)(1) - Supersedeas. As this matter is timely filed and service has been effected upon the Department's legal office, and none of the enumerated exceptions under 75 Pa. C.S.A. § 1550 (b)(1) (ii) or (iii) exist, the Petitioner specifically requests that this Honorable Court in its Order grant Supersedeas to stay the Department's planned suspension. WHEREFORE, Petitioner, Jeff Alan Cornman, respectfully requests this Honorable Court hold a de novo hearing on his Appeal from the suspension of his operating privilege and will invalidate the illegal taking of his privilege and the improper action of the Department of Transportation, Bureau of Driver's Licensing, to suspend his operating privilege. Respectfully submitted, Shawn M. Curry, Attorney for Petitioner Attorney ID#: 202061 4807 Jonestown Road, Suite 148 Harrisburg, Pennsylvania 17109 Telephone: (717) 657-3900 Fax No.: (717) 657-2060 EXHIBIT A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date:. MAY O1, 2007 JEFF ALAN CORNMAN WID ~ 07b14666443031b 001 L0 MOUNTAIN ROAD PROCESSING DATE 04/24/2D07 DRIVER LICENSE * 2260b135 DILLSBURG PA 27019 DATE OF BIRTH 01/06/1972 Dear MR. CORNMAN: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547B1II of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 03/31/2007: ^ Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 06i05iZ007 at 12:01 a.m. COMPLYING WITH THIS SUSPENSIO N You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses Ccamera cards) in your possession on or before 06/05/2007. You may surrender these items before, 06/05/2007, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of 510.00. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain Your photo identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the fallowing steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn notarized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: 071146664430316 Pennsylvania Department of Transportation Bureau of Driver Licensing - P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at_the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. 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. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, MAY O1, 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. You must return all current Pennsylvania driver license products to PennDOT by 06/05/2007. 071146664430316 Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 6:0.0 .m. IN STATE 1-80.0-932-4600 TDD IN STATE OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 1-800-228-0676 WEB SITE ADDRESS www.dmv.state.aa.us 717-412-5380 EXHIBIT B COMMONWEALTH OF PENNSYLVANIA ~ POLICE CRIMINAL COMPLAlNY <r ''~} COMMONWEALTH OF PENNSYLVANIA COUNTY OF: Cumberland VS. DEFENDANT (NAME AND ADDRESS) Magisterial District # 09-1-01 Jeff MDJ Hon Charles A. CLEMENT Jr. First Name Alan CORNMAN -Male Address 400 Bridge St. Middle Name Last Name Gen. Suite 3 ~ 10 Mountain rd. New Cumberland Pa. 17070 Dillsburg Pa. 17019 Telephone (717) 502 - 8446 NCIC Extradition Code T pe J ^ ,-Felony Full ^ 4-Felony No Ext. ^ Felony Ltd. ^ B-Misdemeanor Limited ^ 3-Felony Surrounding States ^ 5-Felony Pend. ^ C-Misdemeanor Surrounding States ®E-Misdemeanor Pending ^ Distance: ^ A-Misdemeanor Full ^ D-Misdemeanor No Extradition RACE DEFENDANT IDENTIFICATION INFORMATION ETHNICITY Docket Number ____ Date Filed ^ Hispanic OTN/LiveScan Number ComplaintJlncident Number © white ® Non- CR-0000163-07 4 / 9 107 L343386-1 ^ Asian Hispanic DOB H02-1651845 ^ 81ack ^ Unknown 01 / 06 / 1972 POB ^ Native American GENDER Add'I. DOB SSN ^ Unknown ®Male / / ~ 198 - 60 - 4252 Add'I. SSN ^ Female AKA First Name Middle Name Last Name Gen. SID HAIR COLOR 31295076 ^ BLK Black ^GRY (Gray) ^ RED (Red/Aubn.) EYE COLOR ( ) ^ ONG (Orange) ^ BLN (Blonde! ~- Request Lab ^ BLU (Blue) ^ PLE (Purple) Strawberry ^GRN Green Services? ® BRO Brown ^BLK Black ( ) ^ PNk lP;n^% ( ) ^ PNK (Pink) ^ WHI (White) ( ) ^GRY (Gray) ^ MUL ^ Yes ©No ^GRN (Green) ^ SDY (Sandy) ^ XXX (Unk/Bald ~ BLU (Blue) ^ HZL (Hazel; ® BRO (Brown) ifvlulrio_~I~~r;,tlj Driver License State License Number ^. MAR (Maroon] [! UNI< iUn.:;;oNm) Pa 22601135 Expires DNA DNA Location 01 / 07 / 09 Weight {pcur;d;) ^ Yes ®No FBI Number 200 Fingerprint Classification MNU Number Ft HEIGHT In. DEFENDANT VEHICLE INFORMATION 5 ~ ~ Plate # State Hazmat Registration Sticker FMM4246 Pa Comm'I V^eh. Ind. School Veh. Oth. NCIC Veh. Code VIN ^ (MM/YY) 01 / 08 4T3Z13COVU188284 Year Make ^ 2000 TOYOTA Model Style ___ SIENNA SW Color Office of the Attorney for the Commonwealth: GREEN ^ Approved ^ Disapproved because: (The Attorney for the Commonwealth may require that the complaint, arrest warrant affidavit, or both be approved b the Attorne for the Commonwealth rior to filin .See Pa.R.Crim.P. 507 . (Name of the Attorney for the Commonwealth - / / Please Print or T e (Signature of the Attorney for the Commonwealth) I, CI~I. W. C. PALMERO (DatP~ (flume of the Affiant -Please Print or Type) 4943 / 67979 Of Pa State POIiCe, Carlisle (PSP/MPOETC -Assigned Affiant ID Number ~, Badge #) (identify Department or Agency Represented and Political Subdivision) do hereby state: check a I Pi~PSP1000 ~ ( PPropriate box) (•°•=•'i::e P.gency oRl h!:,n,b~r i 1 ~ ^ I accuse the above-named defendant who lives at the address set forth above ^ 1 accuse the defendant whose name is unknown to me but who is described a s I ^ I accuse the defendant whose name and popular designation or nickname are unknown to me and therefore designated as John Doe or Jane Doe whom ! ha~~e with violating the penal laws of the Commonwealth of Pennsylvania at 102 [ ] Lower Allen Twp in Cumberland County [21] on or about 03/31/07 (Subdivision Code (Place-Political Subdivision) OPC 412 Count Code A-06 ' ~f . _ ' _ _. , .. .a' ~.~c Docket Number ' Date Filed OTN/LiveScan Number ~„"' POLtCE CRtMf~1~L COIUt~L;=.:~~T CR-163-07 _ 4: / g / ~ ComplaintRncident Number - - 07 L343386-1 __ - First Name - - ~ ' H02=1651845 • . •-'- . Defendant Name Middle Name - Last Name , ..Jeff __. Alan_ __. _ . _ _CORNMAN The acfs'cornniitted by they accused-ard des`cnfied belowwtth=dach-Act of Assembly'or statute violated; :if a_. ro riate: (Set Forrh a bnefsumma ~p p ry of the facts sufficient to advise•the'deferidaht of the natuFe df the offense(s) charged A citatibn to Ifzc -statute(s) viclaie;i, violated. ) without"more, rs hot suff'icreht. In a summary case;rydu must cite the specific section(s) and subsections} of the statute(s) or=ordinance(s) alltige,71,,• Inchoate ^ Attempt Solicitation Conspiracy ^ Al Offense 18 901 A 18 902 A 18 903 ^ A2 ^ g (En a in Aidin ^ Permitting (Title 75 Onl Knowled a 75 1575 A '-~ _ 4 3736 a of the Veh Code 1 _ I La d7 Offense # Section .Subsection S Pe<<.^.DGT Data Accident PA Statute Title) Counts Grade NCIC Offense Code UCr./NIoR;: (:;_~!- - (if a;~plicablej Number -- ___ _~_ __ Acts of the accused associated with this Offense: ^ Safety Zone ^^tn/ork ~oi~ VC 3 i 36(a) RECKLESS DRIVING --- IN THAT, on or about said date, THE DEFENDANT did drive a vehicle in willful or wanton disre ard f~- persons or property, in violation of Section 3736(a) of the PA Vehicle Code. g ~+ tl~e safet',,' of Incir,+~,u ~ Li Attempt- - _ Ofir;i ~~ _ ^ Solicitation Conspiracy; {] Al .]E 90.1.A 18 902 A _.18.903 ^ A2 ^ B .3804 C_1.1 III En a in Aidin - --(Knowled e r 75(ti~75FG - of th.e_... Pa Veh code 1- _ ~ _ ~ ea't'? Offense #. . S.ectfon. _ `Subsecton:. _ PennpOT Data Accident ` --- PASta#u#s Title Cbunts Grade - NCIC Offense Code a iCi?7NIn ,~_;_~ - ~_ -- (if appiicablel Number... _ __. -_.~._! - -_ Acts of the accused associated with this Offense: ^ Safety Zone VC 3804 c 1 i /ii iii iv Drivin Under the Influence of Alcohol or Controlled Substance ' ~ of °r - .n~ • -_ - . M, -N THAT, on or about said date THE DEFENDANT, did violate section 3802(a)(1)-and refused te' ~ r: -r' At i individual who violates section 3802(a)(1) and refused testing of blood or breath for a first offense shall be set l to +ndergo Imprisonment of not less than 72 consecutive hours; pay a fine of not less tha strn,, ,f blood or bread;. -''•,-.d an alcohol highway safety school a 1-en~eo pproved by the department' and comply with all d $ g a0nd a ~hol treat ~; ~~;'JGO~ re„ -:;cements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to man~i,;;; •, I sentancing). InchoaPa'~ ^ Attem t _ Offense p ^ Solicitation Conspiracy ^ Al _ 18 .901 A 18 902 A 18 903 ^ A2 ^ g ^ En a in Aidin ^ Permitting (Title 7 ~ n,. Of the. Knowled e t each OffensA ++: .._ 7 -~ A 5•---15' ~ Section _ < :Subsection - PennpOT Data ~ PA'Statrite Title . Accident `Counts _ Grade- (if appticatile NCIG Offense Code I UCP,fNtgpc nu Number . _ .... _.. Acts of the accused associated with this Offense: ^ .Safety Zone i .... _ ^ Wor„_~one ~ _.. I - . I I - I ' i i fi -~._ __.___ -J AOPC 412A-06 20070206-1 P:^ rf CRIMf~4L C~i~T~r <<,:^~ Docket Number: Date Filed: _ OTN/LiveScan Numberrer~escanroomeera~er~medl_ __ Complaint/Incident Uumh~; -- - - L343386-1 veiandant Name- First: -- Middle: I10L-1651S45 ' Jeff _ Last:. ~lmi _ - _..-_ _ This aFfiant.is a member of the Pennsyl~vaFaDS a e'. P ~c PR~BAB~E CAUSE Station. I have been employed by the Pennsylvania State Police foa22 years. the Patrol Unit at Troop H, ~~"arlisie On the above date and time this officer was in full uniform in a marked patrol vehicle and o eratin h~ -. ^nd field I"2;.'ar j?~ GHD7726. The vehicle was stationary and parked in the gore area of SR0015 at the Rossmoyneg outhbound ~~~t_ -~~,~~~ ramp and vas perpendicular to the roadway. This location was located approximately 100 yards south of the point ~vi~ere SR0015 was reduced to one lane as a result of a construction zone and a rM y~ the reduced 40 mph speed zone. pproximately 1.5 mils from the start of ~t this time a vehicle was observed to be traveling at an a tai'?. The radar was activated and the vehicle registered a speedrof sixtyhtwo (62)smph in alpostedh40 m dl act ??ar. construction zone. The vehicle -stayed in the left (and and swerved abruptly just before stl-tking the markers closing ii ie left lane. The vehicle continued south at a high rate of speed after passing the marked patrol vehicle. TI~e vehic;l- overtook another vehicle and had to brake abruptly to avoid striking it. The subject vehicle continued to follovv ti-~~J slower (approx 40-45 mph) vehicle at a distance of a c entrance ramp. pproximately 10 feet. The vehicle was stopped at the Wjn~;i„J iii" When the operator was approached the odor of intoxicating beverage was detected. It was noted that Isis eve vrere bloodshot and glassy. When producing his documents he appeared to have trouble handlin his spoke with a slurred speech pattern. When asked he stated that he had several beers after dinner. Theo erat,r_~,~ s ~~; asked to exit his vehicle. g papennrr~ii:.. ;e When walking to the rear of his vehicle he walked with exaggerated caution. At the rear ~i ~ p ur~,ble to satisfactorily-complete the -BEST as directed. While standing in place it was not .. of his w~.~ticle lie w-~ ed that he ..~~ia..;;=-I •.- .- circular movement. He was offered a PBT but was unable to~pertorm it. When told that he was beir,~ arrested.I stand that he knew he had drunk to much buf.could this ,officer ive.him a break and ~ust follow him n ` v i, ;:.. he made it - _ g J ome to m~,~C ._ ~~re He was placed in the rear of the patrol vehicle where he was read his Miranda warnings. 1/Vhile a+~route tori-,- processing center he repeatedly stated that he shouldn't have driven, that he was drunk and that he +n,~tilri ,iot ;;;:;s= ._ breath test and could not afford to loose his license. At the processing center he refused a breath test after being read the implied consent warnings. This affiant requests a summons be sent to the accused requiring him to appear at this court to answer - .. set. Forth in this complaint. the allegati;:.n~ TH i ^~`~, DEPOSE AND SAY THAT THE FACTS SET FORTH IN THE FORE G DULY SWORN ~ ~~~ CORRECT TOT rt.~~CrDIF+,~ -, :_ HE BEST OF MY KNOWLEDGE, INFORMATION AND BELT GOfN AFF(DAVi T r„? T^ C - i' Svrorn to me and su 12thday (Signature ofAffiant) l,~l +=^mmission expires first Monday of January,2008 AOP~~ -11 G06 2007020G-1 2007 ,Magisterial District Judge. ~Liri. t L--- ~ JEFF ALAN CORNMAN, IN THE COURT OF COMMON PLEAS PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA VS. RE: STATUTORY APPEAL PETITION -CHEMICAL TEST REFUSAL COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DOCKET NO: CV 2007 BUREAU OF DRIVER'S LICENSING, RESPONDENT AFFIDAVIT OF SERVICE I, Shawn M. Curry, Esquire, do hereby affirm that I have served upon the Department of Transportation, Bureau of Driver's Licensing, a true and correct copy of Jeff Alan Cornman's Petition for Appeal of Operating Privilege Suspension by sending said copy to the Bureau of Driver's Licensing by United States Postal Service, Certified Mail, Return Receipt Requested, Receipt No,. -]t~c,~tr 3y~[~ per, ~ (~3qq D ~ -~ addressed as follows: Office of Chief Counsel Department of Transportation Riverfront Office Center - 3rd Floor 1101 S. Front Street Harrisburg, Pennsylvania 17104-2516 This affirmation is made with the knowledge of the penalties of 18 P.S. §4904 relating to unsworn falsification to authorities. Respectfully Submitted, MCSHAN~ HITCHINGS, LLC Date: S ~ C~ By: 5ha~..A~1. Curry, ~ e Attorney for Petitioner Attorney ID# 202061 4807 Jonestown Road, Suite 148 Harrisburg, Pennsylvania 17109 Telephone: (717) 657-3900 Fax: (717) 657-2060 ~ ~ ~ .~ ~ °~ ~ ~ b ~~ -~ W n ~, r ~ ~ f C) cNM, D C~` ~ -fit n F -; ~ ~ ~ c.a ~~ ~..~ \ ~~ - _. ` T ~ ~_ ' i- ~ rn _ _.... ~ yam. Ctl .~ r c; JEFF ALAN CORNMAN, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-3242 CIVIL TERM ORDER OF COURT AND NOW, this 12th day of June, 2007, upon consideration of Petitioner's Operating Privilege Suspension Appeal, a hearing is scheduled for Monday, October 1, 2007, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Shawn M. Curry, Esq. 4807 Jonestown Road Suite 148 Harrisburg, PA 17109 Attorney for Petitioner BY THE COURT, George Kabusk, Esq. Office of Chief Counsel Department of Transportation 3ra Floor, Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 Attorney for Respondent ~-13-d ~ :rc a - - i ~k,_i ~ ,;s;,nr~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA JEFF ALAN CORNMAN, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER NO. 2007-3242 CIVIL TERM AND NOW, this 1St day of October, 2007, based on Petitioner's desire to discontinue this matter, the appeal filed in the above referenced matter is DISMISSED. The license suspension which is the subject of this appeal shall be REINSTATED, effective December 1, 2007. Attest: Dis,stribution: ~8'P'awn M. Cunt', Esq., 4807 Jonestown Road, Suite 148, Harrisburg, PA 17109 ~eorge Kabusk, Esq., Pennsylvania Department of Transportation, Office of Chief Counsel, 1101 South Front Street, 3rd Floor, Harrisburg, Pennsylvania 17104- 2516 7 ~ ~~ ~~~9 I -- .~. t~ L~~~ At~~'14~i°.~ ~ .~N~. ~G