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Home My WebLink About01-2093 COMMONWEALTH OF PENNSYLVANIA · IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, ' CUMBERLAND COUNTY, PENNSYLVANIA Respondent . Jeffrey j. Miller, · Petitioner ' CIVIL ACTION. LAW 'NO: ~/. ,~o ~ CIVIL TERM TO THE HONORABLE JUDGEs OF SAID COURT: 1. The Petitioner, Jeffrey j. Miller is an individual residing at 151 Big Spring Terrace, Newville, Pennsylvania 17241. On March 9, 2001 the Department °fTransportation mailed a Notice of Suspension of Driving Privileges to the Petitioner. (See attached Exhibit "A") 2. The effective date of the suspension is April 13, 2001. 3. Said suspension arises out of the Petitioner's alleged refusal to take a chemical test Pursuant to § 1574 of the Vehicle Code. 4. The Notice of Suspension is insufficient as a matter of law and violates Due Process under the Pennsylvania and United States Constitutions. 5. Said suspension is not supported by the evidence and is erroneous as a matter of law. 6. Said suspension should be automatically Stayed Upon the filing of this Petition and Upon timely notice to the Department of Transportation. WHEREFORE, your Petitioner Respectfully Requests that this Appeal be granted and, in the interim, that this Honorable Court enter a Stay of the Suspension °fPetitioner's Operating Privileges pending this Appeal. Resp¢ct£ully Submitted, Attorney £or Petitioner $0 East High Street Carlisle, PA 17013 S~prerne Court ID # 73471 COMMONWEALTH OF PENNSYLVAN/A · IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, ' CUMBEreD COUNTY, PENNSYLV~IA Respondent . V. Jeffrey J. Miller, ' 'CIVIL ACTION. LAW Petitioner 'NO: CIVIL TERM VERIFICATION I verify that the statements made in the foregoing Petition for Appeal fi'om Order of Department of Transportation Suspending Operator's License are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn fa/sification to authorities. DATE:~ ( .~-" " COMMONWEALTH OF PENNSYLVANIA · IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, ' CUMBE~AND COUNTY, PENNS~V~IA Respondent . Vo ~ Jeffrey J. Miller, 'CIVIL ACTION- LAW Petitioner 'NO: CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Petitioner's Petition for Appeal from Order of Secretary of Transportation Suspending Operator's License was served certified mail upon the following: Pennsylvania Department of Transportation Office of Chief Counsel 3~ Floor, River Front Office Center Harrisburg, PA 17104-2516 COMMONWEALTH OF PENNSYLVANIA · IN THE COURT OF COMMON PLEAS OF DEPARTME~ OF TRANSPORTATION, · CUMBE~~ COUNTY, PENNS~V~A Respondent ' V. Jeffrey J. Miller, · CIVIL ACTION - LAW Petitioner · NO: OI --.?,O~ CIVIL TERM o~an}gR O~ AND NOW, this t! day of ~ b r,, ,2001, upon consideration of the Petitioner's Petition for Appeal from Order of Secretary of Transportation Suspending Operator's License, it is hereby ORDERED that a heating be held on the a~/.~. _ day of ~~~-~ _, :00~, ~t _i: 3 o _ o'=1o=~ _ , ~_ .~. ~ Co~oom ~o. ___/ _. The Suspension of the Petitioner's Operating Privileges are Stayed pending the outcome $~ BY THE COURT: Distribution: Pennsylvania Department of Transportation C2/ · - Office of Chief Counsel :'.'- ..... 3~a Floor, River From Office Center Harrisburg, PA 17104-2516 !:"i: -,-(: .. · -_ . Gregory L. Cutler, Esquire :;::" ~.". ....... 50 East High Street ~:> .':... :.: .... Carlisle, PA 17013 :::": ' ' -'~,~ , ,4-,a--o~ ~ COMMONWEALTH OF PENNSYLVANIA · IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, · CUMBERLAND COUNTY, PENNSYLVANIA Respondent · Jeffrey J. Miller, · CIVIL ACTION- LAW Petitioner · NO: 01-2093 CIVIL TERM AI~~, ,A,vrr Ol~,s~R,v!cE COMMONWEAL~ OF PENNS~V~ ) .. COUNTY OF Cumbe~ ) AND NOW, this ~27t.h day of A~ril, 2001, I Gregory L. Cutler, Esquire, attorney for Jeffrey J. Miller, Petitioner, in the above-captioned action, hereby swear that I have served a true copy of the Petition for Appeal from Order of Department of Transportation Suspending Operators License, executed by the Petitioner in the above-captioned matter, upon Respondent, Pennsylvania Department of Transportation, Office of the Chief Counsel, by depositing the same in the U.S. Mail, postage prepaid, certified, return receipt requested. The original return receipt card signed by the Respondent on April 16, 2001 indicating service was effected, is marked Exhibit "A", attached hereto and made a part hereof. LAW OFFICES OF PAUL BRADFORD ORR Attorney for Petitioner 50 East High Street Carlisle, PA 17013 (7~ 7) 258-8558 I.D. # 73471 EXHIBIT "A" B Complete.items 1, 2, and 3. Also complete A. Received by (P/ease PrintDate of Delivery item 4 if Restricted Delivery is des/red. · Print your name and address on the reverse ......... .. so that we can return the card to you ..... c. Signature B Attach this card to the back of the mailpiece, or on the front if space perm/ts. X ..... -----.-.-.--_ J~ Agent 1. Artici~ Addressed to: ~--'-------- ~rj~ · ~) F enter delivery address below: J~] No -[' A/VSP 'TA'TIo APR 1 6 ZOO1 " Mail J~ Express Mail -___ "-'~o~i,4~. (,~'/ ' /' I ~-J ~nsured Mail [~] C O D ~n~nancfise_~.. 2. Article Nu~service label) '--"-"---~--...--......__ J~] Yes ~ ........ Domestic Return Receipt , COMMONWEALTH OF PENNSYLV~~ · IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, ' CUMBERL~D COUNTY, PENNSYLVANIA Respondent . · V. o · Jeffrey J. Miller, ' CML ACTION - LAW Petitioner 'NO: 01-2093 CIVIL TERM MOTION TO CON~INUE AND NOW, this jj_~_~day of ~)14 ~ _, 2001, comes the Petitioner, Jeffery J. Miller, by and through his attorneys, TIlE LAW OFFICES OF PAL BRADFORD ORR, and respectfully avers as follows: 1. A hearing on the above captioned matter is currently scheduled for June 21,2001, at 9:30 a.m. in Courtroom number 1. 2. Undersigned counsel is a National Guard Officer scheduled for duty from June 15, 2001 until June 30, 2001. 3. Undersigned counsel will be unavailable for a hearing on June 21,2001. 4. George Kabusk, Esquire, Attorney for the Pennsylvania Department of Transportation does not oppose this continuance. WHEREFORE, the Petitioner requests that a hearing on the above captioned matter be rescheduled to a time and date convenient to both parties. Respectfully Submitted, Dated: ' Attorney for 't~oner 50 East High Street Carlisle, PA 17013 7) 258-8558 I.D.//73471 COMMONWEALTH OF PENNSYLVANIA · IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, ' CUMBEreD COUNTY, PENNSYLVANIA Respondent - · o Jeffrey J. Miller, · CIVIL ACTION - LAW Petitioner 'NO: 01-2093 CML TERM .CERTIFICATE OF SERVICE I hereby certify that a tree and correct copy of the Petitioner's Motion to Continue was served certified mail upon the following: George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 3rd Floor, River Front Office Center Harrisburg, PA 17104-2516 COMMONWE~TH OF PENNSYLVANIA · IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION, ' CUMBEreD COUNTY, PENNSYLVANIA Respondent · o V, o · Jeffrey J. Miller, ' CML ACTION - LAW Petitioner 'NO' 01-2093 CIVIL TERM O~RI)ER O1* COURT AND NOW, this 1~ ['~day of ~.--~o)'~ c., 2001, upon consideration of the Petitioner's Motion to Continue it is hereby ORDERED that a heating be held on the '~day of_~~ 2001, at ~ o'clock _4~ M. in courtroom number ! ~ -- __ BY THE COURT: Distribution: George Kabusk, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 3'a Floor, River Front Office Center Harrisburg, PA 17104-2516 Gregory L. Curler, Esquire, 50 East High Street Carlisle, PA 17013 COMMONNEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATioN BUreau of Dr/ve~ L~censing Harrisburg, PA 17123 HARCH 09, 2001 .... J£FFERy d ~ILLER .... 151 BIG SPRING TERRACE 0~06~61~418S~8~ 001 .... 03/O2/2'0D1 ~EWVILLE PA 17241 242~0829 1~/1~/~9~6 . i Dear HOtor~st: As a result of your violation of SectJon 15~7 of the Vehicle Code, CHENICAL TEST REFUSAL on 02/08/2001,~ Your driving Privilege is being SUSPENDED for a Period ?of YEAR(s). In order to comuly With ~h/s Sanctton You ;mre required to r,o later than the effective dire listed. It You Cannot comply ~th the ~equl~ements state~ above, ~ou a~e ~o Submit a DLI6Lc Fo~m o~ a s~O~n affldav:~t stating that ~ou are a~a~e of the Sanction against ~ou~ driving lege. Failure to comply ~ith th~s nOtice ~;hal] result this Bureau referring th~s mat'te~ to the PennSylvania State Police fo~ D~OSecution Unde~ SECTION 1571(a:,(~) of the hicle Code. Although the la~ mandates that You~ ~tiVing D~lVilege t~nde~ ~USpens~on even if You do not sUP~ende~ Your license, CPedtt ~i11 r~ot begin until all' current dr~ver~s l~cense P~Oduct(s), the DLIfLc Fo~m, o~ a lette~ ~cknowledg~ng Your Sanction ~s received in thi~ BUreau. NHEN THE DEPARTH ~ENT, NE ~-. __ ENI ~ECEIvr~ RECEIPT .... :~C ~END YOU ~ ~-'~ rUUR L t/~HER~iSI:. _ ~ UAYS CON ' 'r YOU DO ACKNOWLEDGE** SANCTION'' YOU 'ILL NOT BE ~~~[ ~~ RECEIVE THIs license ~s sUSPen or )0 days ~-_ .ua, the Pena]+~__ar2~n,~ whi . . zmPrlSonme .... --*es ~1~ ,_ ~e Your ,.,****,,,,,::cerise W'li be"~ AND a l,OOO ;1°e' a "INIHu. ? a*****~*****~_~Spended for ~ .l~e AND Your DL-26 (7-94) ..~ ..... r,,% CHEMICAL TESTING WARNINGS AND REPORT OF ~ '~: F'j." .,. ,~. ...... ,"-"',. 'i~ c-, ..:.. "? ' '~ ;~ REFUSAL TO SUBMIT TO CHEMICAL TESTING AS "' "~' ,!?~.'..'.-'.'~,~:'> ;,.':~ .... '~ .., AUTHORIZED BY [~ OF THE VEHICLE CODE NAME FIRS~,.~~ ~_..~.~ MIDDLE LAST DATE OF BIRTH ADDRESS '"~ ~ '~',-~ CITY ZIP CODE DRIVER NUMBER ~,J: ~. ~,{~. ! '7 ~f~ I CHEM TEST REQUEST DATE SOCIAL SECURITY NUUBER 1. Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to section 3731 of the Vehicle Code. 2. I am requesting that you submit to a chemical test of (breath, blood 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 a period of one year. 4. a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the right to speak with'a lawyer and the right to remain silent, apply only to criminal prosecutions and do not apply to the chemical testing procedure under Pennsylvania's Implied Consent Law, which is a civil, not a criminal proceeding. b) You have no right to speak to a lawyer, or anyone else, before taking the chemical test requested by the police officer nor do you have a right to remain silent when asked by the police officer to submit to the chemical test. Unless you agree to submit to the test requested by the police officer your conduct will be deemed to be refusal and your operating privilege will be suspended for one year. c) Your refusal to submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the influence of alcohol or a controlled substance. I certify that I have read the above warning to the m~ nity to submit to chemical testing. ~of their operating privilege ajn ~:~)J motorist an opportu- d gave the Signature of Officer: ""~'~ Date: ~(~/O t'~/ I have been advised of the above. , - -- Signature of Motorist: Motorist refused to sign. after being advised..,.~,.~.~ ~ Date' Signature of Officer:._ ,~"~__~_.~ Date' {~ (~[ 1. AFFI A The. above motorist was ~,la,-,-,~ .......... AFFIp~A~T ~, ,.,~,-, U-Mar arres~ for oriving under the influence-"~f alcohol or a controlled substance in violation of Section 3731 of the Vehicle Code. and there were reasonable grounds to believe that the above motorist had been driving, operating or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or a controlled substance or both. or That the above named motorist was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was ki!led. 2. The above motorist was requestea to submit to chemical testing as authorized by Section 1547 of the Vehicle Code. 3. The above motorist was informed by a police officer of the chemical test warnings contained in paragraph 3 and 4 above. 4. The above named motorist refused to submit to chemical testing. _OFFICER NOTE_' The refusal to sign this form is not a refusal to submit to the chemical test. You must still give the motorist an opportu- nity t the chemical test after reviewing this form. If the individual was operating a commercial motor vehicle while having any alc~ ~r a controlled substance in th. ~ystem, you must also complete the reverse sid~ !D AND SWORN ME: Officer Signature: "~'~. YEAR ng Oath Officer Name: ...~~'"~.. *~~\_~\ L ~'~,'"~_~ (Type or Print) Badge Number: ~:~t "--~ Jurisdiction:. Phone: (_"~). ~t..~t:t- ~,~ [, (~-~"~E.~~, Mailing Address ~1 ~ ~_ Co,,,,t,,,.,~"~.~.~. Forward to: Department of Transportation Bureau of Driver Licensing P.O. Box 60037 '~! Note: Any pertinent facts not covered by the affidavit should be submitted on a ~kl~ separate sheet and attached hereto. That sheet should include the names of Harrisburg. PA 17106-0037 J'~°"~'° ~'~ additional witnesses necessary to prove the elements to which you have attested. THIS FORM MAY BE DUPLICATED ADDITIONAL SUPPLIES OF THIS FORM MAY BE SECURED BY COMPLETING FORM OS-511A JEFFREY J. MILLER, . PETITIONER ' IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNt, ' PENNSYLVANIA Vo · · NO. 2001.-2093 COMMONWEALTH OF PENNSYLVAN~, ' DEPARTMENT OF TRANSPORTATION, . LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENS/NG, . RESPONDENT . AND NOW, thiS a~ day o£~, 2001, upon consideration &the Department's request/'or continuance, and without objection fi'om the petitioner, the hearing in the above referenced matter is continued and reschedulcd/'or the St._~ day o£_OOctober, 2001 at ~ ~ in Courtroom Number_l o£ the Cumberland County Courthouse, Carlisle, Pennsylvania. · !..-.,.: ,,.';,..'c .~~ BY THE COURT: · ' :.. Distribution: 3. George H. Kabusk, Esquire, DCpamnCnt o/Transportation, RivCrfi-ont Office Center- 3rd Floor, I I 01 South Front Street, Harrisburg, PA I ?I 04-2'316 Gregory L. Cutler, Esquire, 50 East High Str~t, Carlisle, PA I ?013 COMMONWEALTH OF DEPARTME ~ ~ __PENNSYLVA~ra . IN THE COURT OF COMMON PLEAs OF ResPondent/Appel 1 ee ] CUMBERL~D COUNTy PENNSYLVANIA f · JEFFREy j. MILLER, ' CIVIL ACTION _ LAW · Petitioner/ApPellant ' NO. 01-2093 CIVIL TERM AND NOW, this 5 consideration of ApPellant,sth day of October, 2001, Upon Department of Petition for ApPeal, from Order Transportation of Suspendin~ Operator s License, the SUspension havin~ been imposed pursuant to a notice from the Department dated March 9, 2001, and followin~ a hearin~ held on this date at which the issue for determin~ whether ApPellant ~ by the Court was to determine the ~/~~~~~ to a chemical test appeal is denied, r , the Petitioner,s notice dated Marc~ ~ ~ the Department by George H. Kabusk, E J. . Office of Chief Cou 1101 South Front Street _ 3rd Floor Harrisburg, PA 17104_2516 For the ResPondent/ApPellee Gregory L. Cutler, Esquire , 50 East High Street Carlisle, PA 17013 For the Petitioner/Appellant pcb