Loading...
HomeMy WebLinkAbout09-7272 DOUGLAS E. RHOADS Appellant V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. O4- ?-Z 7z C 1 Tug COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENSING, Respondent LICENSE SUSPENSION APPEAL AND NOW, comes Douglas E. Rhoads, hereinafter Appellant, by and through his attorneys, Mancke, Wagner & Spreha, who respectfully represent: 1. The Appellant is an adult individual residing at 23 Village Road, Mechanicsburg, Cumberland County, Pennsylvania. 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 September 23, 2009, the Appellant received an Official Notice of Suspension indicating that his driving privilege would be 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. Appellant believes such suspension is illegal, unjust and improper for reasons which include, but are not limited to the following: a. The Appellant was not advised of his rights concerning a chemical test refusal; b. The Appellant was not given an opportunity to provide a- 0 0 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: SEPTEMBER 23, 2009 DOUGLAS EUGENE RHOADS WID * 092596680712651 001 23 VILLAGE RD PROCESSING DATE 09/16/2009 DRIVER LICENSE # 15967653 MECHANICSBURG PA 17055 DATE OF BIRTH 09/28/1953 Dear MR. RHOADS: 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 08/29/2009: ¦ Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 10/28/2009 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 10/28/2009. You may surrender these items before, 10/28/2009, 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: 092596680712651 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". ..p 0 0 6'92596680712651 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, SEPTEMBER 23, 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 10/28/2009. 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 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us VERIFIGAT ON I hereby verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Date LUG! 1 FA *gg.5o PA ATT•! ??' ftto6 aaay I8 T DOUGLAS E. RHOADS Appellant V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Oq - 7aTA C.:ivi I lem COMMONWEALTH OF PENNSYLVANIA : DEPARTMENT OF TRANSPORTATION LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENSING, Respondent ORDER AND NOW, this.901-day of , 2009, upon consideration of the within Petition, it is hereby ordered and decreed that a hearing be held on the 3LA-_ day of 200, at 9? 3d o'clock in Courtroom , Cumberland County Courthouse. Notice of said hearing shall be mailed to the Department of Transportation by Appellant's attorney at least sixty days prior to the date of the hearing. By the Court: Distribution: Ward F. Spreha, Jr., Esquire, 2233 North Front Street, Harrisburg, PA 17110 ? Pennsylvania Department of Transportation, Office of Chief Counsel, 1101 South Front Street, 3"d Floor, Harrisburg, PA 17104-2516 czx-ne-s I 10/a7/07 ?I:rq P{1B>-Wra .OF THE PRQTHIMTARY 2009 OCT 27 AM 10: 4 1 CUMSt-. '- ; 41D ,, iOUNW PENNSYLVANfA. DOUGLAS E. RHOADS, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 09-7272 CIVIL COMMONWEALTH OF PA DEPT. OF TRANSPORTATION BUREAU OF DRIVER LICENSING: Respondent : LICENSE SUSPENSION APPEAL ORDER AND NOW, this / I' day of November, 2009, hearing in the above-captioned matter set for December 3, 2009, is continued to Tuesday, February 23, 2010, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. ZEdward F. Spreha, Jr., Esquire For the Appellant ? Philip Bricknell, Esquire For the PennDOT :rlm t'e.S noa tL.;c-L BY THE COURT, ___? - Z-:? /-?_ Kevin . Hess, J. ?-`, ?"E OF TH PR' ??' OTARY 2009 NOV 19 AM 10: 22 CLJMKl-,L,l LJ -,,-I NTY P`ttNNSYL.VANA DOUGLAS E. BROADS, Appellant vs. COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, BUREAU OF DRIVER'S LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 09-7272 CIVIL DRIVER'S LICENSE SUSPENSION APPEAL ORDER AND NOW, this Z Y ' day of February, 2010, continued hearing in the above- captioned matter is set for Thursday, April 15, 2010, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, FF/»~ ward F. Spreha, Jr., Esquire For the Appellant /Philip M. Bricknell, Esquire For PennDOT :rlm U ~ ~ f.S m5.1~4c~ a/as~~v ~~ Kevin'.' Hess, P. J. n f-- --- - _._ ° ,',' -~j ~-:, .-,., ~ _J :, ;~ -~ m ~ _.~ { , _~: ~ c~s - ~ rn t,,a A DOUGLAS E. RHOADS, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 09-7272 CIVIL COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, DRIVER'S LICENSE SUSPENSION APPEAL BUREAU OF DRIVER'S LICENSING, Respondent IN RE: LICENSE SUSPENSION APPEAL, BEFORE HESS, P.J. ORDER AND NOW, this Z (P ' day of August, 2010, the appeal of Douglas E. Rhoads from the suspension of his driving privileges is DENIED. BY THE COURT, ?i ? / Kevin X Hess, P. J. ?Philip Bricknell, Esquire For PennDOT Edward F. Spreha, Jr., Esquire For the Defendant :rlm C g ?L ?10 jY N t3y t DOUGLAS E. RHOADS, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 09-7272 CIVIL COMMONWEALTH OF PA, DEPT. OF TRANSPORTATION, DRIVER'S LICENSE SUSPENSION APPEAL BUREAU OF DRIVER'S LICENSING, Respondent IN RE: LICENSE SUSPENSION APPEAL BEFORE HESS, P.J. OPINION AND ORDER Before the court is the appeal of Douglas E. Rhoads ("appellant"), who challenges the suspension of his driving privileges by the Department of Transportation ("Department") for an alleged refusal to complete a breath test. For the reasons set forth below, we are constrained to deny the appeal. On August 29, 2009, Trooper Tandy Carey of the Pennsylvania State Police was traveling southbound on Interstate 81 in Silver Spring Township. (N.T. 6:13-17). Near mile marker 57.9, Trooper Carey observed a red Chevrolet 5-10 truck driving erratically. (N.T. 6:20- 23). Specifically, she saw the vehicle pass over the fog line three times, over the dotted line twice, and make erratic lane changes. (N.T. 6:20-7:10). Based on these observations, Trooper Carey initiated a traffic stop. (N.T. 7:10-12). Trooper Carey testified that after she made contact with the appellant, the driver of the red truck, she observed him fumbling through paperwork when looking for his driver's license, vehicle registration, and proof of insurance. (N.T. 7:19-25). Trooper Carey also recalled the defendant having bloodshot and glassy eyes, slurred speech, and the odor of alcohol on his NO. 09-7272 CIVIL breath. (N.T. 7:25-8:3). The appellant also informed Trooper Carey that he had had a few drinks that evening. (N.T. 8:7-10). Trooper Carey then asked the appellant to exit his vehicle so she could administer field sobriety tests. (N.T. 8:13-14). Trooper Carey testified that as the appellant exited his vehicle, he staggered and appeared unsure of his footing. (N.T. 8:14-16). Trooper Carey then attempted to administer a preliminary breath test:. (N.T. 8:19-21). On his first attempt, the appellant did not blow enough air into the device to produce a valid test result. (N.T. 9:1-5). On his second attempt, the appellant blew into the device correctly, producing a BAC reading of 0.241. (N.T. 9:5-7). Trooper Carey then placed him under arrest and transported him to the Cumberland County Processing Center in order to complete another breath test. (N.T. 9:10-20). Once at the Processing Center, the appellant was brought to Officer John Leuck, the operator of the Intoxilyzer 5000. (N.T. 15-5:12). Officer Leuck read the appellant his chemical testing warnings as set forth on Form DL-26 and then instructed him on how to complete the breath test. (N.T. 18:23-19:9). After being read these warnings, the appellant told Officer Leuck that he had difficulty breathing due to asthma and emphysema. (N.T. 19:19-22). The appellant then attempted to complete the breath test, but over the course of the two chances he was given, he was unable to provide a valid sample. (N.T. 18:10-19:9). Prior to the appellant's second opportunity to complete the test, Officer Leuck again warned the appellant of the consequences of a failure to provide a valid sample. (Respondent's Exhibit D, admitted February 23, 2010). The video recording of the appellant's breath tests showed him blowing with enough. force to initially produce the audible tone from the machine, but on each attempt, his face quickly turned bright red and he was unable to continue blowing hard enough into the machine. Id. 2 NO. 09-7272 CIVIL The appellant has proffered the deposition testimony of his physician, Dr. Julienne Fahnestock, who has treated the appellant since 1989. (Fahnestock Deposition 4:2-3). Dr. Fahnestock testified that the appellant has suffered from chronic obstructive pulmonary disease, commonly known as COPD, since 1992. (Fahnestock Dep. 4:4-20). In July 2009, Dr. Fahnestock ordered a pulmonary function analysis of the appellant because he was coughing and short of breath following a cold. (Fahnestock Dep. 4:21-5:7). After reviewing the results of that analysis, Dr. Fahnestock concluded that the appellant also suffers from severe emphysema. (Fahnestock Dep. 6:1-2). As a result of the appellant's breathing conditions, he is unable to exhale with any considerable force, exhaling at only 47 percent of the predicted standard for a healthy person of his age, height, and weight. (Fahnestock Dep. 6:3-15). Additionally, he is unable to sustain breathing output; during his pulmonary tests, the appellant's breath output decreased from 1.02 liters of air per second during the first second to 0.27 liters per second after about two seconds. (Fahnestock Dep. 8:17-25). Because of the stiff, inelastic nature of the appellant's lungs, Dr. Fahnestock expressed doubt about the appellant's ability to generate enough force to blow up a balloon, the very rough equivalent of the resistance of the Intoxilyzer 5000. (Fahnestock. Dep. 11:25-12:16). Despite the illuminating testimony of Dr. Fahnestock with regard to the appellant's extremely diminished breathing function, she was unable to offer any opinion of how the appellant's COPD and emphysema would affect his performance on the Intoxilyzer 5000 machine on which he was tested, because she was familiar with neither the machine's specific requirements nor its resistance setting. (Fahnestock Dep. 16:25-17:10). Ultimately, she was 3 NO. 09-7272 CIVIL unable to rule out alcohol as having had an effect on the appellant's breathing on the night he was unable to provide a valid breath test. (Fahnestock Dep. 17:15-21). Section 1547 of the Vehicle Code requires the suspension of a licensee's driving privileges for refusal to submit to a breath test. 75 Pa.C.S.A. § 1547(b). In order to uphold this administrative sanction, the Department must establish that the licensee: (1) was placed under arrest for driving under the influence of alcohol, (2) was requested to submit to a breathalyzer test, (3) refused to submit to the test, and (4) was warned of the specific consequences of refusal to submit to the test. See, e.g., Wheatley v. Department of Transportation, Bureau of Driver Licensing, 104 Pa.Cmwlth. 171, 172, 521 A.2d 507, 508 (1987). It is well settled that "failure to complete a breathalyzer test, whether or not a good faith effort was made to do so, constitutes a refusal per se to take the test." Sweeney v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 685, 687 (Pa.Cmwlth. 2002) (citing Department of Transportation, Bureau of Driver Licensing v. Kilrain, 140 Pa.Cmwlth. 484, 593 A.2d 932 (1991), appeal denied, 529 Pa. 625, 600 A.2d 541 (1991)) (emphasis in original). Once the Department establishes each of the four elements listed above, the burden then shifts to the driver to demonstrate that his refusal was either not knowing or conscious or that he was physically unable to take the test. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 446, 691 A.2d 450, 453 (1997) (citing Commonwealth, Department of Transportation v. O'Connell, 521 Pa. 242, 248, 555 A.2d 873, 876 (1989)). The medical condition causing a licensee's physical inability to provide an adequate sample must be unrelated to the ingestion of alcohol or other drugs. Sweeney, 804 A.2d. at 687 (citing Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa.Cmwlth. 4 NO. 09-7272 CIVIL 1996)). Where no obvious inability is apparent to officers, a finding that the driver was unable to take the test must be supported by competent medical evidence. Larkin v. Commonwealth, 109 Pa.Cmwlth. 611, 614, 531 A.2d 844, 846 (1987). Licensees asserting the defense of physical inability to complete the breath test face a decidedly uphill battle. In Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456 (Pa.Cmwlth. 2000), the Commonwealth Court held that testimony of the licensee's medical doctor was not competent when he was unaware of the exact respiratory force and duration needed to produce a valid breathalyzer result. Bridges, 752 A.2d at 460. In Sweeney v. Dept of Trans., Bureau of Driver Licensing, supra, the Commonwealth Court reversed the trial court's order sustaining an appeal of a licensee who, as in this case, argued that she was physically unable to provide a sufficient breath sample. Sweeney, 804 A.2d at 686. The licensee offered the expert testimony of a toxicology professor who previously served as the chief toxicologist of Allegheny County for thirty-two years. Id. The licensee's expert testified that the factory resistance settings on the breathalyzer machines were typically set so high that some sober, healthy individuals would be unable to provide an adequate sample. Id. The Commonwealth Court rejected this testimony, stating: Sweeney's expert indicated that generally Intoxilyzers needed to be set to a lower expiratory volumetric force of 3 pounds per liter. But Sweeney presented absolutely no evidence that this Intoxilyzer required an expiratory volumetric force of 6 pounds per liter rather than the 3 pounds per liter that her expert said was a better setting. Sweeney, 804 A.2d at 688 (emphasis in original). In short, the Commonwealth Court requires that medical testimony must be able to link the licensee's specific ailment(s) to the requirements NO. 09-7272 CIVIL of the particular breathalyzer machine used in order to be regarded as competent for the purpose of demonstrating physical inability. Were it not for this guidance from the Commonwealth Court, we would sustain the appeal before us. The video evidence and the deposition of Dr. Fahnestock demonstrate that the appellant made his best effort to provide a sufficient sample to the Intoxilyzer 5000 machine, but that his severe respiratory ailments prevented him from successfully doing so. We are satisfied that the appellant's testimony challenging his alleged refusal was credible. Moreover, the appellant's conduct during the breath tests bore out Dr. Fahnestock's observations with regard to the appellant's respiratory force: he was able to produce a short burst of breath, but what little force he could muster quickly subsided. Despite our conclusion that the appellant's respiratory ailments - not the appellant's failure to properly blow into the machine, as asserted by the Department's witnesses - prevented him from being physically able to provide a valid breath sample, we are nonetheless constrained to find that the testimony of Dr. Fahnestock is insufficient to satisfy the standards set forth by the Commonwealth Court in Sweeney and Bridges. ORDER AND NOW, this 2L' day of August, 2010, the appeal of Douglas E. Rhoads from the suspension of his driving privileges is DENIED. BY THE COURT, 6 NO. 09-7272 CIVIL Philip Bricknell, Esquire For PennDOT Edward F. Spreha, Jr., Esquire For the Defendant Am