HomeMy WebLinkAbout07-6908TROY S. ULZHEIMER IN THE COURT OF COMMON PLEAS
Petitioner CUMBERLAND COUNTY,
PENNSYLVANIA
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING,
Respondent
LICENSE SUSPENSION APPEAL
AND NOW, comes the Petitioner, Troy S. Ulzheimer, by and through his attorney,
Bryan M. McQuillan of Mancke, Wagner, Spreha & McQuillan, who respectfully avers the
following:
1. The Petitioner, Troy S. Ulzheimer, is an adult individual residing at 115 Mount
Zion Road, Dillsburg, Pennsylvania, 17019.
2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver
Licensing has a mailing address of Riverfront Office Center, Third Floor, 1101 S. Front
Street, Harrisburg, Dauphin County, Pennsylvania 17104-2516.
3. On or about October 19, 2007, the above-named Petitioner received an Official
Notice of Suspension from the Department of Transportation, indicating that his driving
privilege was being suspended for a period of 18 months as a result of an alleged violation
of 75 Pa.C.S.A. §1547. (See Exhibit A).
4. Petitioner believes such suspension is illegal, unjust and improper for reasons
which include, but are not limited to the following:
a. There was no valid request to take a chemical test;
b. There was no valid opportunity to take a chemical test;
C. There was no valid refusal to take a chemical test;
d. The Petitioner was not properly advised of any rights or
was misled concerning any rights and/or consequences
of any alleged refusal;
e. There was no conscious knowing and/or intelligent
refusal;
f. There were no reasonable grounds to believe your
Petitionerwas operating a motor vehicle while underthe
influence of alcohol.
WHEREFORE, Petitioner respectfully requests this Honorable Court to schedule a
hearing to determine the propriety of the suspension outlined in Exhibit A.
Respectfully submitted,
MANCKE, WAGNER, SPREHA & McQUILLAN
ui llan, Esq.
/arnf'M. 0cQ?i
7967
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Attorney for Defendant
2233 North Front Street
Harrisburg, PA 17110
717-234-7051
Dated: 1 I -1 b- b1
VERIFICATION
I verify that the statements made in the foregoing document are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to
unworn falsification to authorities.
Date: J 1- I Ll-100-7 x ?/-V
y^ rt,""9 1#4-ap F. F P,4
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: OCTOBER 19, 2007
TROY S ULZHEIMER WID # 072856691086625 001
115 MOUNT ZION RD PROCESSING DATE 10/12/2007
DRIVER LICENSE * 23784921
DILLSSURG PA 17019 DATE OF BIRTH 01/10/1976
Dear MR. ULZHEIMER:
This is an Official Notice of the Suspension of your Driving
Privilege as authorized by Section 1547BIlI of the
Pennsylvania Vehicle Code. As a result of your violation
of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL,
on 10/06/2007:
¦ Your driving privilege is SUSPENDED for a period of 18
MONTH(S) effective 11/23/2007 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 11/23/2007. You may
surrender these items before, 11/23/2007, 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 10.00. You roust present two (2) forms of proper
_identification e_g..?_ b thC_er + f- mat P, ata] w <<-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:
EXHIBIT
a
J
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072856691086625
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)C4)
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:
I. Return the enclosed Application for Restoration. The
amount due is listed an the application.
2. Write your driver's license number (listed an 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 19, 20071 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 11/23/2007.
Ott 18 07 08;30a Troy Ulzheimer 1-717-612-9577 p.4
0728566910a6625
Sincerely,
Janet L. Dolan, Director
Bureau of Driver Licensing
INFORMATION 5.00 a.m. to 6:OD p.m.
IN STATE 1-800-932-4600 TDD IN STATE-' 1-500-226-0676
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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NOV 1 02007
TROY S. ULZHEIMER, IN THE COURT OF COMMON PLEAS
Petitioner CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CO NO.
MMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING,
Respondent
ORDER
AND NOW, this ?ay of 12007, upon consideration of the within
Petition, it is hereby ordered and decreed that a hearing be held on the 13&--day of
tl\ Lj--' 1 2001 , at I V- 30 o'clock in Courtroom Cumberland County
Courthouse.
Notice of said hearing shall be mailed to the Department of Transportation by
Petitioner's attorney at least sixty days prior to the date of the hearing.
Distribution:
an M. McQuillan, Esquire, 2233 North Front Street, Harrisburg, PA 17110
nnsylvania Department of Transportation, Office of Chief 1101 South Front Street, 3' Floor, Harrisburg, PA 17104'2516 Counsel,
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TROY S. ULZHEIMER IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING 07-6908 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.
? George Kabusk, Esquire
Aryan For the Department of Transportation
M. McQuillan, Esquire
For Petitioner
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By the Co
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TROY S. ULZHEIMER IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING 07-6908 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
OPINION AND ORDER OF COURT
Bayley, J., February 26, 2008:--
PennDOT suspended the driving privilege of Troy S. Ulzheimer for eighteen
months for failure to submit to a chemical test of his blood following his arrest for driving
under the influence. Ulzheimer filed this appeal on which a hearing was conducted on
February 13, 2008. We find the following facts.
On November 23, 2007, Officer James Miller of the Upper Allen Township Police
Force was on patrol in the Township on Route 15. At 2:44 a.m., he stopped a vehicle
after observing weaving and erratic driving over a considerable distance. The driver
was Troy Ulzheimer. While Officer Miller was talking to Ulzheimer when he was still
inside the vehicle, he smelled an odor of alcohol. Ulzheimer had bloodshot and glassy
eyes, his speech was slurred, and he fumbled with his cards. He told the officer that he
drank two beers in downtown Harrisburg. The officer had Ulzheimer get out of the
vehicle. He had an unsteady gait. He failed a walk-and-turn test and registered a 0.16
on a preliminary breath test. Officer Miller arrested him for driving under the influence,
handcuffed him, and had him get into the backseat of his patrol car. While Officer Miller
was reading Implied Consent warnings to Ulzheimer off a card he carries with him, a
07-6908 CIVIL TERM
radio station came on and Ulzheimer told the officer that he could not hear him. Officer
Miller turned off the radio and started again, reading Ulzheimer the full Implied Consent
warnings, after which he asked him for a blood test. Ulzheimer said, "I'm not doing
nothing, and I'm not listening." Just before leaving for a booking center Ulzheimer told
the officer that he did not refuse.'
On the way to the booking center, Ulzheimer said several times that he had not
refused to take a test. After arriving at the booking center, Officer Miller read the
following Implied Consent warnings to Ulzheimer as follows:
1. Please be advised that you are under arrest for driving under the
influence of alcohol or controlled substance in violation of Section 3802 of
the Vehicle Code.
2. 1 am requesting that you submit to a chemical test of blood (blood,
breath or urine. Officer chooses the chemical test).
3. It is my duty as a police officer to inform you that if you refuse to
submit to the chemical test, your operating privilege will be
suspended for at least 12 months, and up to 18 months, if you have prior
refusals or have been previously sentenced for driving under the
influence. In addition, if you refuse to submit to the chemical test, and you
are convicted of or plead to violating Section 3802(a)(1) (relating to
impaired driving) of the Vehicle Code, because of your refusal, you will be
subject to more severe penalties set forth in Section 3804(c) (relating to
penalties) of the Vehicle Code, the same as if you would be convicted of
driving with the highest rate of alcohol, which include a minimum of 72
consecutive hours in jail and a minimum fine of $1,000.00, up to a
maximum of five years in jail and a maximum fine of $10,000.
4. It is also my duty as a police officer to inform you that you have no right
to speak with an attorney or anyone else before deciding whether to
submit to testing and any request to speak with an attorney or anyone
else after being provided these warnings or remaining silent when asked
to submit to chemical testing will constitute a refusal, resulting in the
suspension of your operating privilege and other enhanced criminal
' If Ulzheimer had consented to a blood test, Officer Miller would have taken him to a
hospital.
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07-6908 CIVIL TERM
sanctions if you are convicted of violating Section 3802(a) of the Vehicle
Code. (Emphasis added.)'
After Officer Miller finished, Ulzheimer asked him if he could read the warnings,
which he did. Ulzheimer then asked for a lawyer. Officer Miller then asked Ulzheimer
to sign the warning statement, which he did. The document sets forth:
I certify that I have READ the above warning to the operator regarding
the suspension of their operating privilege and gave the operator an
opportunity to submit to chemical testing. (Emphasis added.)
Signature of Officer: James R. Miller Date: 10-6-07
1 have been advised of the above.
Signature of Operator: Troy Ulzheimer Date: 10-6-07
Operator refused to sign, after being advised.
Signature of Officer: Date:
Officer Miller then signed the following affidavit:
AFFIDAVIT
1. The above operator was placed under arrest for driving under the
influence of alcohol or a controlled substance in violation of Section 3802
of the Vehicle Code, and there were reasonable grounds to believe that
the above operator had been driving, operating or in actual physical
control of the movement of a vehicle while in violation of Section 3802.
2. The above operator was requested to submit to chemical testing as
authorized by Section 1547 of the Vehicle Code.
3. The above operator was read by a police officer of the chemical
test warnings contained in paragraph 3 and 4 above.
4. The above named operator refused to submit to chemical testing
after having been read the above warnings.
OFFICER NOTE: The refusal to sign this form is not a refusal to submit
to the chemical test. You must still give the operator an opportunity to
take the chemical test after reviewing this form. If the individual was
operating a commercial motor vehicle while having any alcohol or a
controlled substance in their system, you must also complete the reverse
side of this form. I certify that all information given in this form is true and
correct. (Emphasis added.)
` These were the same warnings that Officer Miller read to Ulzheimer at the scene of
the stop.
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07-6908 CIVIL TERM
Officer Signature: James R. Miller
Contrary to Officer Miller's affidavit, Ulzheimer did not refuse to submit to
chemical testing after he had just read to him the "above warning." Ulzheimer was not
given an opportunity to take a blood test, or any other chemical test, at the booking
center.3 Rather, he was booked. Officer Miller testified that the only reason he read the
Implied Consent warnings to Ulzheimer at the booking center, and asked him to sign
the consent, was that it was a matter of procedure.
The Vehicle Code at 75 Pa.C.S. Section 1547(b)(1), provides:
If any person placed under arrest for a violation of section 3808 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 as follows:
(ii) For a period of 18 months ...
Section (b)(2) provides:
It shall be the duty of the police officer to inform the person that the
person's operating privileges will be suspended upon refusal to submit to
chemical testing.
In Commonwealth of Pennsylvania, Department of Transportation v.
Renwick, 669 A.2d 934 (Pa. 1996), Betty Renwick was arrested for driving under the
influence. She was taken to a hospital where a police officer read to her Implied
Consent warnings, and then sought to have blood drawn to determine her blood alcohol
content. The officer asked Renwick to sign the consent form on two different
There was an Intoxilyzer at the booking center.
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07-6908 CIVIL TERM
occasions. She ignored the officer and turned her head. Another officer arrived and
read the consent form to Renwick. When he requested that she submit to a blood test,
Renwick closed her eyes and turned her face away. She did not respond when the
officer asked her if she understood him. When the officer again asked her if she would
consent to a blood alcohol test, she did not respond. The officer informed Renwick that
her silence would be considered a refusal to submit to the blood test, resulting in the
suspension of her license for twelve months. Renwick then stated that she would
submit to the test. The officer handed her the consent form and requested that she
read it and sign it. Renwick stated that she could not lift her arm to sign the form. The
officer told her that if she did sign the form, he would consider her action a refusal to
submit to the blood test. Renwick did not sign the form and the officer informed her that
her action was a refusal. Shortly thereafter, the officer observed Renwick sign a
hospital treatment form presented by a nurse.
After her operating privilege was suspended for refusing a blood test, Renwick
filed an appeal. A trial court dismissed the appeal, concluding that Renwick's actions
were so inconsistent with her purported verbal assent that they constituted a de facto
refusal of the test. The Commonwealth Court reversed. The Supreme Court granted
allocatur to clarify whether a licensee's refusal to sign a police consent form establishes
a refusal to submit to chemical testing. The Court noted that Section 1547(b)(1) does
not expressly require written consent to submit to chemical testing. In reversing the
Commonwealth Court and reinstating the order of the trial court, the Supreme Court
concluded:
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07-6908 CIVIL TERM
We continue to adhere to the established law providing that anything less
than an unqualified, unequivocal assent constitutes a refusal under §
1547. Although Appellee's refusal to sign the consent form does not, in
and of itself, constitute refusal to take the chemical test, the facts dictate
that Appellee's overall conduct demonstrated a refusal. Appellee was
requested to submit to the chemical testing several times by two separate
officers. Appellee responded by closing her eyes, turning her head and
ignoring the request. In a fleeting moment, Appellee then stated that she
would assent to the test. Such gamesmanship is not to be countenanced
by the jurisprudence of this Commonwealth and does not promote the
interests underlying the Implied Consent Law.... [U]nder the
circumstances of this case, there was no issue as to whether [Appellee's)
response related to the chemical test or the implied consent form that she
was requested to sign. The record reveals that when [Appellee] was
requested to sign the implied consent form on at least two occasions, she
turned her head away from the officer and refused to respond to him.
Because [Appellee's] actions were so completely inconsistent with her
purported verbal assent to the chemical test, the Court concluded that
such actions constituted a de facto refusal of the test. In conclusion,
although we agree with the Commonwealth Court that a refusal to sign a
consent form does not constitute a refusal to submit to testing, we find
that Appellee's overall conduct demonstrated a refusal. (Citations
omitted.)
Section 1547 of the Vehicle Code was last amended in 2006, and there is still no
provision in the statute that expressly requires written consent to submit to chemical
testing. Because Ulzheimer was read the Implied Consent warnings at the scene of the
stop, and did not unequivocally assent to taking a blood test that was requested by
Officer Miller, that constitutes a legal basis for the suspension of his operating privilege.
As in Renwick, his repeated statements that he did not refuse a test, in this case after
he said "I'm not doing nothing, and I'm not listening," was gamesmanship. What
occurred at the booking center is of no legal import. Accordingly, the following order is
entered.
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07-6908 CIVIL TERM
ORDER OF COURT
AND NOW, this *2410 CN_ day of February, 2008, the within appeal from the
suspension of a driving privilege, IS DISMISSED.
George Kabusk, Esquire
For the Department of Transportation
Bryan M. McQuillan, Esquire
For Petitioner
:sal
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