HomeMy WebLinkAbout07-6801IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH of PENNSYLVANIA : NO. D,7- (,1D! Cevti:l Tc
V.
DONALD E. MALEHORN
Petitioner
CIVIL ACTION-LAW
APPEAL FROM DRIVER'S
LICENSE SUSPENSION
APPEAL FROM SUSPENSION OF OPERATING PRIVILEGES
AND NOW comes the Petitioner, Donald Malehorn, by and through his attorney, Gary
Lysaght, Esquire, and respectfully represents as follows in support of this Petition:
1. On October 8, 2007 Petitioner was arrested for Driving Under the Influence.
2. On or about October 25, 2007 Petitioner received a suspension letter regarding a
Chemical Test Refusal. (Copy attached)
3. Petitioner was physically unable to perform a breathalyzer test due to a previously
existing pulmonary medical condition.
WHEREFORE, Petitioner, Donald Malehorn, based on the foregoing representations,
respectfully requests that this Honorable Court grant a hearing to determine the status of his
operator license suspension, and enter a Supersedeas until such time as a hearing can be held.
RESPECT Y SUBMITTED:
t, VqpOe
Gary Ly
Wjh
I.D. No. 39183
1350 Fishing Creek Valley Road
Harrisburg, PA 17112
(717) 599-5320
ATTORNEY FOR PETITIONER
CERTFICATE OF SERVICE
I, Gary Lysaght, Esquire, hereby certify that on the day of , 2007,1
served a copy of the forgoing document by depositing such into the custody of the United States
Postal Service, certified mail, addressed as follows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516
eVkyp6t,'?fsquire
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: OCTOBER 25, 2007
DONALD EDWARD MALEHORN WID # 072916663482094 001
RD 2 BOX 29 PROCESSING DATE 10/18/2007
DRIVER LICENSE t 08496600
MILLERSTOWN PA 17062 DATE OF BIRTH 09/16/1932
Dear MR. MALEHORN:
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 10/08/2007:
¦ Your driving privilege is SUSPENDED for a period of 18
MONTH(S) effective 1129/2007 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 11/29/2007. You may
surrender these items before, 11/29/2007, 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 *10.00. You must present two (2) forms of proper iden-
tification (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 nota-
rized 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:
Pennsylvania Department of Transportation
072916663482094
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 con-
firming the date that credit began. If you do not re-
ceive 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 pro-
ducts, 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, OCTOBER 25, 2007, of this letter. If you file an ap-
peal 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 certi-
fied 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 11/29/2007.
072916663482094
Sincerely,
9??U ?-- '6 '? 0)
Janet L. Dolan, Director
Bureau of Driver Licensing
INFORMATION 8:00 a.m. to 6:00 a.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.aa.us
.
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?. Nov 1 32007.,4y ?
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH of PENNSYLVANIA :
V.
DONALD E. MALEHORN
Petitioner
8q;( (ex M
ORDER OF COURT
AND NOW, this (51-*-_ day of, 2007, in the foregoing
Appeal from License Suspension, a hearing is granted to determine whether petitioner is subject
to suspension of his automobile operator's license.
This appeal shall act as supersedeas to the suspension. Thirty (30) days written notice is
to be given to the Secretary of the Department of Transportation, Commonwealth of
Pennsylvania.
7LK
A hearing will be held on the 3 day of , 2008, at T qs
a.m./pan., in Court Room Cumberland County Courthouse, On?.Pourthouse Square,
Carlisle, Pennsylvania.
Y THE
Distribution:
NO. ?1-Jog0I
CIVIL ACTION-LAW
APPEAL FROM DRIVER'S
LICENSE SUSPENSION
J.
Prothonotary
,PTDept. of Transportation, Office of Chief Cousel, Third Floor, Riverfront Office Center,
Harrisburg, PA 17104-2516, #787-2830
,,G-,fry Lysaght, Esquire, 11350 Fishing Creek Valley Road, Harrisburg, PA 17112, #599-5320
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COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DONALD E. MALEHORN
07-6801 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
ORDER OF COURT
AND NOW, this day of February, 2008, the within appeal from the
suspension of a driving privilege, IS DISMISSED.
By the Cou
/George Kabusk, Esquire
/For the Department of Transportation
/Gary Lysaght, Esquire
For Petitioner
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COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA, DEPARTMENT OF CUMBERLAND COUNTY, PENNSYLVANIA
TRANSPORTATION
V.
DONALD E. MALEHORN : 07-6801 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
OPINION AND ORDER OF COURT
Bayley, J., February 26, 2008:--
Pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547(b)(1)(ii), PennDOT
suspended the driving privilege of Donald E. Malehorn for eighteen months for failure to
submit to a chemical test following his arrest for driving under the influence. Malehorn
filed this appeal upon which a hearing was conducted on February 13, 2008. We find
the following facts.
On October 8, 2007, at approximately 8:44 p.m., Officer Warren Cornelious, a
Camp Hill Borough Police Officer, was in a patrol car stopped at a traffic light facing
north on 21St Street at the intersection of Route 15. He saw a vehicle proceeding west
on Route 15 and into an intersection with the green light. The vehicle stopped in the
middle of the intersection and then made an illegal left turn crossing through the
eastbound lane of Route 15 onto 21St Street southbound. Officer Cornelious turned his
vehicle around and stopped the vehicle, which was driven by Donald Malehorn. Officer
Cornelious smelled an odor of alcohol, and he saw that Malehorn had bloodshot eyes
and had urinated "himself. Malehorn said he had one drink. Malehorn got out of his
07-6801 CIVIL TERM
vehicle and did a walk-and-turn test and a one-leg stand test. He failed both. Officer
Cornelious arrested him for driving under the influence at 8:58 p.m. He took him to a
booking center where they arrived at 9:30 p.m. The officer read the Implied Consent
warnings to Malehorn. Malehorn signed the consent form and agreed to take an
Intoxilyzer test.
From the testimony of the booking officer, Tonya Roe, and our viewing a video,
we find that the booking officer repeatedly explained to, and showed Malehorn how to
blow into the mouthpiece of the Intoxilyzer 5000. Malehorn repeatedly failed to blow
any air into the mouthpiece. He only blew enough air into the mouthpiece one time
sufficient for the machine to make a sound, which, when sufficient air is being blown,
sounds several times before a measurement of a valid breath sample is registered. At
no time during his repeated "attempts" to blow into the machine did Malehorn state that
he had any type of breathing problem or physical problem, nor did he show any signs of
distress.
In Whistler v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, 882 A.2d 537 (Pa. Commw. 2005), the
Commonwealth Court sated:
... DOT has the initial burden of establishing that: (1) the licensee
was properly stopped by police; (2) he was requested to submit to testing;
(3) he refused; and (4) he was warned that a refusal would result in a
suspension of his license.... Once DOT has met its burden, the licensee
has the obligation to establish that his refusal was not knowing or that he
was physically unable to take the test. (Citation omitted.)
Malehorn raises one issue, maintaining that he has shortness of breath that
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07-6801 CIVIL TERM
rendered him physically unable to perform the Intoxilyzer 5000 test on October 8, 2007.
He presented the testimony of James Toth, who is a licensed respiratory therapist.
Toth had Malehorn perform pulmonary lung function tests on February 5, 2008. Toth
reviewed records from the Veteran's Administration that reflected that in the summer of
2007, Malehorn received medical treatment during which he complained of shortness of
breath and heart pain. The primary diagnosis was congestive heart failure. There was
no diagnosis of pulmonary disease. Toth testified that there are predictable norms for
pulmonary lung functioning based on age, gender and height. During the series of
pulmonary lung function tests performed by Malehorn, he functioned at best at 82
percent of the norm and at worst at 68 percent of the norm. Toth testified that he did
not know the amount of force and time necessary to produce a valid sample of breath
on an Intoxilyzer 5000. While acknowledging that Malehorn could have blown air into
the instrument, it was his opinion, based on his clinical findings, that Malehorn's ability
to perform the breath test was impaired by his condition.
In Hatalski v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, 666 A.2d 386 (Pa. Commw. 1995), the
Commonwealth Court held that where a licensee suffered from a medical condition
whose existence was not obvious, and it affected the licensee's ability to perform a test,
the licensee was required to inform the officer of the condition so that an alternative
chemical test could be performed. Because the officer was not notified, the licensee
was precluded from relying upon any such condition or inability as an affirmative
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07-6801 CIVIL TERM
defense to a suspension as a consequence of a test refusal. However, in Bridges v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing, 752 A.2d 456 (Pa. Commw. 2000), the Commonwealth Court held that a
licensee is not prevented from utilizing an affirmative defense if he had not been
diagnosed with a condition that affected his ability to produce enough breath to
complete a breathalyzer test. This is the situation in the present case.
In Barbour v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, 732 A.2d 1157 (Pa. 1999), the Supreme
Court of Pennsylvania held that proof of physical inability to take a breath test to
measure blood alcohol content must be by expert medical testimony to a reasonable
degree of medical certainty. James Toth is a licensed respiratory therapist. He is not a
physician, therefore, being unable to render any opinion within a reasonable degree of
medical certainty as to whether Malehorn was physically unable to perform the
Intoxilyzer 5000 test on October 8, 2007, there is insufficient evidence for this court to
make such a finding.
Even if we could consider Toth's testimony on that issue, it was insufficient for us
to conclude that Malehorn was physically unable to perform the Intoxilyzer 5000 test. In
Bridges, a medical doctor testified on behalf of the licensee with whom he had
administered a pulmonary function test. The test showed that the licensee suffered
mild to moderate restriction in moving air. The physician was not aware of the exact
forced expiratory volume required to satisfy the requirement of the breathalyzer test, nor
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07-6801 CIVIL TERM
the amount of time that breath is needed to be maintained for the test, nor how hard a
person needs to blow in order to satisfy the requirements of the test. Notwithstanding,
the physician testified that the licensee would have had significant difficulty completing
the breathalyzer test because of his lung disease, and his reduced ability to exhale
would have made it more difficult to perform the test. The Commonwealth Court held
that this was insufficient evidence to support a finding that the licensee could not
produce the breath necessary to successfully complete the test due to a medical
condition. In Whistler, the physician testified that the licensee had advanced
pulmonary disease and could not physically perform the breathalyzer test due to his
prior exposure to smoke and his emotional issues, and that the licensee "probably
would have a difficult time performing that test adequately, and to do so without
medications might have provoked a worsening of the disease." The physician did not
know what force of air was necessary to get a reading on the testing device used in the
case. The Commonwealth Court concluded that this was not competent evidence to
support a conclusion that the licensee had a medical condition which prevented him
from performing a breathalyzer test.
Likewise, in the case sub judice, the opinion of James Toth, who did not know
the amount of force and time necessary to produce a valid breath test on an Intoxilyzer
5000, that Malehorn's ability to perform the test was impaired by his pulmonary
functioning ability is not sufficient for us to conclude that Malehorn had a physical
condition whereby he could not produce the breath necessary to successfully complete
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07-6801 CIVIL TERM
the test. Accordingly, the following order is entered.
ORDER OF COURT
AND NOW, this 2D `" clay of February, 2008, the within appeal from the
suspension of a driving privilege, IS DISMISSED.
By the
Edgar B. Bayley, J.
George Kabusk, Esquire
For the Department of Transportation
Gary Lysaght, Esquire
For Petitioner
sal
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