HomeMy WebLinkAbout09-4392IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA CIVIL ACTION - LAW
JOHN W. GUILLIAMS No. D7' ill/ T1t-M
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
APPEAL FROM THE SUSPENSION OF OPERATING PRIVILEGES
TO THE HONORABLE, THE JUDGES OF SAID COURT:
AND NOW comes Petitioner, John W. Guilliams, by and through his attorney, Heather
N. Orisko, Esquire of the Law Office of Darrell C. Dethlefs, and respectfully avers as follows:
1. Petitioner, John W. Guilliams, resides at 401 E. Portland Street, Mechanicsburg,
Pennsylvania 17055.
2. Petitioner's Pennsylvania Operator's Number is 14706729.
3. Penn DOT Proposes by Notice dated June 12, 2009 to suspend Petitioner's
driving privileges for a period of one (1) year pursuant to Section 1547of the Pennsylvania
Motor Vehicle Code, effective July 17, 2009 at 12:01 AM. Please see attached document,
OFFICIAL NOTICE OF THE SUSPENSION, dated June 12, 2009, attached hereto and
incorporated herein and Exhibit A.
4. The withdrawal and suspension of Petitioner's operating privileges is unlawful, in
that Petitioner's record with Penn DOT does not warrant suspension and Petitioner did not
knowingly, voluntarily or intelligently refuse a chemical test on May 23, '2009.
WHEREFORE, Petitioner respectfully requests that this Honorable Court allow him to take an
appeal from the suspension of his operating privileges.
Respectfully submitted,
LAW OFFICE OF DARREL'.L C. DETHLEFS
Date: 0710//0 9 Heather N. Orisko, Esquire r
Attorney ID# 91067
2132 Market Street
Camp Hill, Pennsylvania 17011
(717) 975-9446
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA CIVIL ACTION - LAW
JOHN W. GUILLIAMS No.
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
CERTIFICATE OF SERVICE
I, Heather N. Orisko, Esquire, of the Law Office of Darrell C. Dethlefs, hereby certify
that on this date, a copy of the forgoing APPEAL FROM THE SUSPENSION OF
OPERATING PRIVILEGES was served via First Class United States Postal Service Mail,
Certified with Return Receipt Requested, to the following parties:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, Pennsylvania 17104-2516
Respectfully submitted,
LAW OFFICE OF DARRELL C. DETHLEFS
Date: '97/007 Heather N. Orisko, Es uire
Attorney ID# 91067
2132 Market Street
Camp Hill, Pennsylvania 17011
(717) 975-9446
Exhibit A.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: JUNE 12, 2009
JOHN W GUILLIAMS WID # 091566691208712 001
401 E PORTLAND ST PROCESSING DATE 06/05/2009
DRIVER LICENSE # 14706729
MECHANICSBURG PA 17055 DATE OF BIRTH 08/18/1947
Dear MR. GUILLIAMS:
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,
on 05/23/2009:
¦ Your driving privilege is SUSPENDED for a period of 1
YEAR(S) effective 07/17/2009 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 07/17/2009. You may
surrender these items before, 07/17/2009, 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:
091566691208712 S 1"
wo AA0.11 11! ?` +oe-lp
gtavi A
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".
091566691208712
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 30 days of the mail
date, JUNE 12, 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 07/17/2009.
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 TOO OUT-OF-STATE 717-412-5380
WEB SITE ADDRESS www.dmv.state.pa.us
PILED-(Y- '
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2009 JUL - i AN 10: 3 3
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JUL 062009h
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PENNSYLVANIA CIVIL ACTION - LAW ?y
JOHN W. GUILLIAMS No. dj-t1,2jd em zlrm
vs.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
ORDER
AND NOW, this day of , 2009, upon presentation of
the within Petition, and upon Motion of Heather N. Orisko, Esquire of the Law Office of Darrell
C. Dethlefs, attorney for Petitioner, the Court orders and decrees that the Petitioner is allowed an
appeal from the Order of the Secretary of Transportation, suspending his operating privileges for
a period of one (1) year, commencing July 17, 2009. The appeal acts as a supersedeas pending
this appeal; and that all proceedings are stayed. A hearing is scheduled for ?&&x '/ ,
2009, at 07: 30
o'clock ? M, , in Courtroom No. 21 of the Cumberland
County Courthouse located at 1 Courthouse Square, Carlisle, Pennsylvania 17013.
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JOHN W. GUILLIAMS IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING 09-4392 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
ORDER OF COURT
AND NOW, this ~ day of October, 2009, the appeal of John Guilliams
from the suspension of his operating privilege for a refusal to allow testing of his blood
following his arrest for driving under the influence, IS DENIED.
By the Court,
r „_.
/ Edgar B. Bayley, J. '
Heather N. Onsko, Esquire
2131 Market Street
Camp Hill, PA 17011
For Petitioner
~ Philip M. Bricknell, Esquire
For the Department of Transportation
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JOHN W. GUILLIAMS IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION, BUREAU OF :
DRIVER LICENSING 09-4392 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
OPINION AND ORDER OF COURT
Bayley, J., October 13, 2009:--
PennDOT suspended the driving privilege of John W. Guilliams for one year for
failure to submit to a test of his blood following his arrest for driving under the influence.
Guilliams filed this appeal upon which a hearing was conducted on October 7, 2009.
We find the following facts.
On May 23, 2009, Patrolman Andrew Bassler, of the Silver Spring Township
Police Department, arrested John Guilliams for driving under the influence. Bassler
took Guilliams to the Holy Spirit Hospital for a test of his blood to determine his blood
alcohol content. Bassler read the Implied Consent warnings to Guilliams from Form DL
26, after which Guilliams signed the form and said he would undertake a test. An
experienced phlebotomist injected a needle into Guilliams' arm. Guilliams would not
hold still and disregarded instructions to hold his fist tight. For about thirty to forty
seconds the phlebotomist repositioned the needle in the arm but was unable to inject it
into a vein from which blood could be drawn. The needle was withdrawn and the
09-4392 CIVIL TERM
phlebotomist said she would try again. Guilliams said he had already given a test and
would not allow the phlebotomist to "stick him again." Another experienced
phlebotomist said she would perform the procedure but petitioner was adamant in his
refusal to allow another attempt to draw his blood.' After approximately four or five
minutes of trying to convince petitioner to allow another attempt to draw blood
Patrolman Bassler deemed a refusal. At the hearing, petitioner testified that it hurt
when the attempt was made to draw is blood but he did not tell that to either of the
phlebotomists or the police officer. He testified that "I never refused a blood test."
In Winebarger v. Commonwealth, Department of Transportation, Bureau of
Driver Licensing, 655 A.2d 1093 (Pa. Commw. 1995), Winebarger was arrested for
driving under the influence and was taken for a blood test. After unsuccessful attempts
to strike a vein to draw blood from each of his arms he refused to allow any further
attempt. A police officer deemed a refusal which was upheld by the trial court and
affirmed by the Commonwealth Court of Pennsylvania. The Commonwealth Court
stated that the issue was whether as a matter of law "that consent to one stick" into
each arm should be sufficient, rendering any subsequent refusal meaningless for
compliance purposes. The Commonwealth Court declined to do so, stating that they
would not quantify how many attempts at drawing blood will be deemed proper consent,
preferring instead to continue to analyze the facts of each case independently. The
The medical protocol at Holy Spirit Hospital allows four attempts to inject a needle into
a vein to draw blood. If blood is still not obtained there must be a delay of twenty hours
before a further attempt can be made.
-2-
09-4392 CIVIL TERM
Court noted that once the Commonwealth has shown that a motorist has refused to
submit to testing the burden shifts to the motorist to provide by competent medical
evidence that he was physically unable to take the test.
In the case sub judice, Guilliams refused any effort to draw his blood after one
attempt had been made. He offered no medical evidence that he was physically unable
to provide blood. As he testified, he made the decision, following the one failed effort,
that he never refused a blood test. He is wrong. There was a deemed refusal.
Accordingly, the following order is entered.
ORDER OF COURT
AND NOW, this ~ day of October, 2009, the appeal of John Guilliams
from the suspension of his operating privilege for a refusal to allow testing of his blood
following his arrest for driving under the influence, IS DENIED.
Heather N. Orisko, Esquire
2131 Market Street
Camp Hill, PA 17011
For Petitioner
Philip M. Bricknell, Esquire
For the Department of Transportation
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