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Home My WebLink About09-3512BREE ANNE HARVEY, 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. 9 - u'l? ?Gvi $ Tw,? LICENSE SUSPENSION APPEAL APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE AND NOW comes the Appellant, Bree Anne Harvey, by and through her attorney, Karl E. Rominger, Esquire, and avers the following: 1. Appellant resides at 421 C Street, Carlisle, Pennsylvania 17013. 2. Appellant received Notice dated May 15, 2009, stating that as authorized by 75 Pa. C.S. 3804 (E) (2)(i) of the Pennsylvania Vehicle Code, as a result of violating Section 75 Pa.C.S. 1547 of the Pennsylvania Vehicle Code, Chemical Test Refusal on May 1, 2009, her driving privilege was being suspended for a period of one year, effective June 19, 2009, 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 was not driving at the time of the encounter. 5. The police officer had no reasonable bases to believe a DUI might have occurred. 6. There was thus no refusal under the law. 7. The Legislature did not intend for a suspension to apply in this instance. 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: May 27, 2009 KarrE. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Appellant COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: MAY 15, 2009_ BREE ANNE HARVEY WID # 091286123359790 001 421 C ST PROCESSING DATE 05/08/2009 DRIVER LICENSE # 23759028 CARLISLE PA 17013 DATE OF BIRTH 11/16/1975 Dear MS. HARVEY: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547BIII of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 05/01/2009: ¦ Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 06/19/2009 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 06/19/2009. You may surrender these items before, 06/19/2009, 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 $12.00. 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: 091286123359790 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. Please note: Paying the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation. If you have not acknowledged your suspension/revocation, please follow the instructions listed under "Complying with this Suspension/Revocation". 091286123359790 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 15, 2009, 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 06/19/2009. Sincerely, 9?-U? 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 TOO IN STATE 1-800-228-0676 OUT-OF-STATE 717-412-5300 TOO OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us BREE ANNE HARVEY, 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, Karl E. Rominger, 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: May 27, 2009 E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Appellant TEE i IYr?, 1 a 4" I u I _r $78.5o 00 A7T'i Cjj?-ft 5817( kr a,v '7g8 hilt ?- 9 2009 ?1- BREE ANNE HARVEY, 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. Oq - w 1a 0"wit-ler-rA LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this /A day of , 2009, 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 rl-bk day of ? bbqqA, , 261-0 7 , at o'clock ?c m. in 'C..rt mbP.'1aoa Courtroom No. of the Fraakk* County Courthouse. A Supersedeas is granted pursuant to Vehicle Code Section 1550 (b) (1) until such time that this Honorable Court resolves this appeal. By the Distribution: ?Office of Chief Counsel PA DEPARTMENT OF TRANSPORTATION Third Floor, Riverfront Office Center Harrisburg, Pennsylvania 17104-2516 ./ Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 ? lDloJ? FILED--O FiE OF THE PRO-PPONOTARY 2009 JUN 10 AM 11: 5 3 Vry ?. t it VY?'Y L taa BREE ANNE HARVEY, APPELLANT/PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE/RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-3512 CIVIL TERM ORDER OF COURT AND NOW, this ~ day of October, 2009, following a hearing on the merits, and finding that petitioner: (1) was arrested for driving under the influence by a police officer with reasonable grounds to believe that she had operated a vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test of her breath after being advised of the Implied Consent warnings; and then (3) after over eight minutes during which the police officer made a considerable effort to have petitioner consent to a test, she failed to give an unqualified, unequivocal consent which resulted in the officer deeming a refusal; the appeal from the suspension of operating privilege pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547, IS DISMISSED. ` In a fleeting moment petitioner faintly said that she would take a test, but when the officer said he did not hear her, she continued not to give an unqualified, unequivocal consent which lead to the officer deeming a refusal. That is gamesmanship and not an unequivocal assent. See, Commonwealth of Pennsylvania, Department of Transportation v. Renwick, 669 A.2d 934 (Pa. 1996), and McCloskey v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 722 A.2d 1159 (Pa. Commw. 1999). We note that after the police officer signed a form signifying a deemed refusal the booking officer started to read Miranda warning to petitioner. She then immediately said that she would take a test. Subsequent consent does not vitiate prior refusal to include a consideration of the length of time in which the change of mind occurred. See Cunningham v. Commonwealth of Pennsylvania, Department of Transportation, 105 Pa. Super. 501 (1987). Police officers are not required to spend time waiting to see if the driver will ultimately change his mind. Id. -~ Phili Bricknell Es uire p ~ q For Appellee/Respondent ~arl E. Rominger, Esquire For Appellant/Petitioner :sal 1D l~tl Uq `T~ a~ Tt-'~ ~~ =t~n~ ~--,-~~~~ ,-' . 2QD9 QCT 13 F'` ~~ 39 2_ r~ki~