HomeMy WebLinkAbout07-4769ELIZABETH H. SHEETZ,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LICENSE SUSPENSION APPEAL
APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE
AND NOW comes the Appellant, Elizabeth H. Sheetz, by and through her attorney,
Michael O. Palermo, Jr., Esquire, and avers the following:
1. Appellant resides at 614 Cumberland Pointe Circle, Mechanicsburg, Pennsylvania 17055.
2. Appellant received Notice dated July 19, 2007, that as a result of her violating Section
1547 of the Pennsylvania Vehicle Code, Chemical Test Refusal on June 13, 2007, her
driving privilege was being suspended for a period of one (1) year, effective August 23,
2007, at 12:01 a.m. A copy is attached hereto as Exhibit "A".
3. The administrative order of the Pennsylvania Department of Transportation suspending
her license is improper.
4. Petitioner believes such suspension is illegal, unjust and improper for reasons which
include, but are not limited to the following:
a. Petitioner is not guilty of the underlying offense;
b. There is not probable cause to believe Petitioner was driving, operating or in
actual physical control of a vehicle after imbibing alcohol to render her incapable
of safe driving.
c. The officer did not have reasonable suspicion or probable cause to request a
breath sample.
WHEREFORE, your Appellant respectfully requests this Honorable Court schedule an
evidentiary hearing on the matter and in the meantime to grant a Supersedeas pursuant to the
Vehicle Code.
Respectfully submitted,
Rominger & Associates
Date: August 13, 2007 ~ ~-,
Michael O. Pale ,Esquire
155 South Hanover Street
Cazlisle, Pennsylvania 17013
(717) 241-6070
Supreme Court ID # 93334
Attorney for Appellant
ELIZABETH H. SHEETZ.,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.
LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I, Michael O. Palermo, Jr., Esquire, attorney for Appellant, do hereby certify that I this
day served a copy of the Appeal From Suspension Of Operator's Privilege upon the following
by depositing same in the United States Mail, first class postage prepaid, at Carlisle,
Pennsylvania, addressed as follows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center,
Harrisburg, PA 17104-2516
Respectfully submitted,
Rominger & Associates
Date: August 13, 2007
~~ _-,
Michael O. Pale ,Esquire
155 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 241-6070
Supreme Court ID # 93334
Attorney for Appellant
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: JULY 19, 2007
ELIZABETH HERRON SHEETZ
614 CUMBERLAND POINTS
CIR
MECHANICSBURG PA 17055
WID * 071936128597231 001
PROCESSING DATE D7/12/2007
DRIVER LICENSE * 24811681
DATE OF BIRTH 09/09/1977
Dear MS. SHEETZ:
This is an Official Notice of the Suspension of your Driving
Privilege as authorized by Section 1547B1I of the
Pennsylvania Vehicle Code. As a result of your violation
of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL,
an 06/13/2007:
^ Your driving privilege is SUSPENDED for a period of 1
YEAR(S) effective 08i23i2007 at 12:01 a.m.
COMPLYING WITH THIS SUSPENSION
You must return all current Pennsylvania driver's licenses,
learner's permits, temporary driver's licenses (camera
cards) in your possession on or before 08/23/2007. You may
surrender these items before, 08/23/2007, 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 following
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:
acX~ Qi~ /~/~ ~~
071936128597231
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) an 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, JULY 19, 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 08/23/2007.
071936128597231
Sincerely,
~~~
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
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ELIZABETH H. SHEETZ,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
AUG 1610D7 ~"'
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. Q 7'T7b 1 ~1~~
:LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this ~ ~~ day of ~_, 2007, upon consideration of this
Appeal From Suspension Of Operator's Privileg , it is Ordered that a hearing on the matter
shall be held on the ~ day of ~~ ,c~00~ , at l , 3~ o'clock
~, m. in Courtroom No. off, of the Cumberland County Courthouse.
A Supersedeas is granted pursuant to Vehicle Cody
that this Honorable Court resolves this appeal.
Distribution:
By the Court:
Office of Chief Counsel
~~ DEPARTMENT OF TRANSPORTATION
Third Floor, Riverfront Office Center
Harrisburg, Pennsylvania 17104-2516
~chael O. Palermo, Jr., Esquire
ROMINGER & ASSOCIATES
155 South Hanover Street
Carlisle, Pennsylvania 17013
S ~ (I ~-~'•s ~3 I ~~ ~'i~ L~GZ
ELIZABETH H. SHEETZ,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 0~- 'f 7~ 9 ~ ~~
LICENSE SUSPENSION APPEAL
APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE
AND NOW comes the Appellant, Elizabeth H. Sheetz, by and through her attorney,
Michael O. Palermo, Jr., Esquire, and avers the following:
1. Appellant resides at 614 Cumberland Pointe Circle, Mechanicsburg, Pennsylvania 17055.
2. Appellant received Notice dated July 19, 2007, that as a result of her violating Section
1547 of the Pennsylvania Vehicle Code, Chemical Test Refusal on June 13, 2007, her
driving privilege was being suspended for a period of one (1) year, effective August 23,
2007, at 12:01 a.m. A copy is attached hereto as Exhibit "A".
3. The administrative order of the Pennsylvania Department of Transportation suspending
her license is improper.
4. Petitioner believes such suspension is illegal, unjust and improper for reasons which
include, but are not limited to the following:
a. Petitioner is not guilty of the underlying offense;
b. There is not probable cause to believe Petitioner was driving, operating or in
actual physical control of a vehicle after imbibing alcohol to render her incapable
of safe driving.
c. The officer did not have reasonable suspicion or probable cause to request a
breath sample.
WHEREFORE, your Appellant respectfully requests this Honorable Court schedule an
evidentiary hearing on the matter and in the meantime to grant a Supersedeas pursuant to the
Vehicle Code.
Respectfully submitted,
Rominger & Associates
Date: August 13, 2007
Michael O. Pale ,Esquire
155 South Hanover Street
Cazlisle, Pennsylvania 17013
(717) 241-6070
Supreme Court ID # 93334
Attorney for Appellant
ELIZABETH H. SHEETZ.,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.
LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I, Michael O. Palermo, Jr., Esquire, attorney for Appellant, do hereby certify that I this
day served a copy of the Appeal From Suspension Of Operator's Privilege upon the following
by depositing same in the United States Mail, first class postage prepaid, at Carlisle,
Pennsylvania, addressed as follows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center,
Harrisburg, PA 17104-2516
Respectfully submitted,
Rominger & Associates
Date: August 13, 2007
Michael O. Pale ,Esquire
155 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 241-6070
Supreme Court ID # 93334
Attorney for Appellant
ELIZABETH H. SHEETZ,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 07-4769 Civil
LICENSE SUSPENSION APPEAL
ORDER O COURT
AND NOW, this ~~ day of 007, upon consideration of this
Appeal From Suspension Of Operator's Privilege, it is Ordered that a hearing on the matter
shall be held on the 27~' day of December, 2007, at 9:15o'clock a. m. in Courtroom No. d of the
Cumberland County Courthouse. This hearing has been rescheduled from November 26, 2007,
at 1:30 p.m.
A Supersedeas is granted pursuant to Vehicle Code Section 1550 (b) (1) until such time
that this Honorable Court resolves this appeal.
By the Court
Distribution:
~ffice of Chief Counsel
PA DEPARTMENT OF TRANSPORTATI
Third Floor, Riverfront Office Center
Harrisburg, Pennsylvania 17104-2516
J
~azl E. Rominger, Esquire
ROMINGER & ASSOCIATES
155 South Hanover Street
Carlisle, Pennsylvania 17013
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ELIZABETH H. SHEETZ, IN THE COURT OF COMMON PLEAS OF
PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
RESPONDENT 07-4769 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
ORDER OF COURT
AND NOW, this ~~~ day of January, 2008, the within appeal from the
suspension of driving privilege for a period of one year, IS DISMISSED.
George Kabusk, Esquire
For the Department of Transportation
Michael O. Palermo, Jr., Esquire
For Petitioner
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ELIZABETH H. SHEETZ, IN THE COURT OF GOMMON PLEAS OF
PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA
v.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
RESPONDENT 07-4769 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVIiLEGE
OPINION AND ORDER OF COURT
Bayley, J., January 2, 2008:--
Elizabeth H. Sheetz filed this appeal from the suspension of her operating
privilege for one year for refusal to submit to a breath test following her arrest for driving
under the influence. A hearing was conducted on December 27, 2007. We find the
following facts.
On June 13, 2007, at approximately 9:15 p.m., Officer Jason Julseth of the
Hampden Township Police Department was dispatched to Clearfield Drive in the
Township to provide back-up to another Hampden Township Police Officer. When he
arrived, Officer Julseth saw a vehicle in front of the Hampden Township police car of
Township Officer Sheetz. Officer Sheetz told him that he had witnessed Elizabeth
Sheetz driving the vehicle and initiated a vehicle stop. Corporal Bonner then arrived.
Because of a familial relationship between Elizabeth Sheetz and Officer Sheetz,
Corporal Bonner directed Officer Julseth to conduct an investigation at the scene.
07-4769 CIVIL TERM
Officer Julseth tried to give Elizabeth Sheetz a horizontal gaze nystagmus test but could
not because she would not keep her body or her head still. She had a strong odor of
alcohol on her breath. She would not complete awalk-and-turn test. She refused to
attempt aone-leg stand test. A preliminary breath test showed her blood alcohol in the
range of .238 percent. Officer Julseth arrested her for driving under the influence and
took her to a booking center where he read to her Implied Consent Warnings. She
signed an acknowledgment of having received the warnings. She kept saying that she
had not been driving and did not know why she was there. A booking agent, Patrick
Carroll, prepared a breath test machine but petitioner would not blow into the
mouthpiece despite his repeated requests for her to do so. He then told her he would
give her three more minutes to take the test. She said she would not take the test.
The Vehicle Code at 75 Pa.C.S. Section 1547(b)(1), provides:
If any person placed under arrest for a violation of section
3802 is requested to submit to chemical testing and refuses to do so,
the esting shall not be conducted but upon notice by the police officer,
the department shall suspend the operating privilege of the person ...
(Emphasis added.)
In Dailey v. Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing, 722 A.2d 772 (Pa. Commw. 1999), the Commonwealth
Court stated:
In order to warrant a license suspension, the burden is upon the
Bureau to prove that: 1) the licensee was arrested for driving under the
influence of alcohol, 2) was requested to submit to chemical testing, 3) the
licensee refused to do so and 4) the licensee was warned that a refusal
would result in the suspension of his operating privilege. Department of
Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691
-2-
07-4769 CIVIL TERM
A.2d 450 (1997). Once the Bureau meets its burden, then the burden
shifts to the licensee to prove that he was physically incapable of making
a knowing and conscious refusal. Id. Where, as here, there is no obvious
physical inability to do so, a licensee must prove that he was incapable of
making a knowing and conscious refusal through competent and
unequivocal medical testimony. Jacobs v. Department of Transportation,
Bureau of Driver Licensing, 695 A.2d 956 (Pa.Cmwlth.1997), allocatur
denied, 549 Pa. 750, 700 A.2d 443 (1997). In proving that a licensee was
incapable of making a knowing and conscious refusal, he cannot rely
upon the fact of his level of intoxication as being the cause of his inability
to do so. See, Department of Transportation, Bureau of Driver Licensing
v. Monsay, 142 Pa.Cmwlth. 163, 596 A.2d 1269 (Pa.Cmwlth.1991);
Appeal of Cravener, 135 Pa.Cmwlth. 480, 580 A.2d 1196
(Pa.Cmwlth.1990). Indeed, part of the licensee's burden in these types of
cases is to establish that his alcohol ingestion played no part in rendering
him incapable of making a knowing and conscious refusal. DiGiovanni v.
Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1125
(Pa.Cmwlth.1998); Gombar, 678 A.2d at 847 ("[I]f a motorist's inability to
make a knowing and conscious refusal of testing is caused in whole or in
part by the consumption of alcohol, the motorist's affirmative defense
fails.")
In the case sub judice, Officer Julseth, based on the information he received
from Officer Sheetz and his own investigation, had reasonable grounds to believe that
Elizabeth Sheetz had operated a motor vehicle on Clearfield Drive while under the
influence of alcohol. He arrested her for driving under the influence. When she was
asked to submit to a breath test to measure her blood alcohol content, she refused after
she was warned that a refusal would result in the suspension of her operating privilege.
She did not present any medical evidence that she was physically incapable of making
a knowing and conscious refusal. Despite whatever confusion she may have had when
she was asked to perform a breath test, she refused to blow into the machine and told
Agent Carroll that she would not take the test. Failing to blow into the machine and
-3-
07-4769 CIVIL TERM
perform two valid tests within the reasonable amount of time afforded her constituted a
refusal which supports the suspension of her driving privilege.
ORDER OF COURT
AND NOW, this `%~~ day of January, 2008, the within appeal from the
suspension of driving privilege for a period of one year, IS DISMISSED.
George Kabusk, Esquire
For the Department of Transportation
Michael O. Palermo, Jr., Esquire
For Petitioner
:sal
-4-