HomeMy WebLinkAbout01-2477 RONALD E. STINE : IN THE COURT OF COMMON PLEAS
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
v. NO: O/-
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION :
Respondent :
LICENSE SUSPENSION APPEAl
AND NOW, this~'4jl day of April, 2001, comes Ronald E. Stine, through his attorneys,
Mancke, Wagner, Hershey & Tully, who respectfully represent:
1. Your Petitioner is an adult individual residing at 111 Skyline Ddve, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Your Petitioner is a licensed automobile operator in the Commonwealth of Pennsylvania
who has received a notice of license suspension for an alleged violation of §1547. A copy of said
notice is attached hereto and made a part hereof as Exhibit A.
3. Your Petitioner believes that the license suspension is illegal, unjust and improper for
reasons which include, but are not limited to, the following:
a. the wamings of the consequences of the refusal were untimely,
inadequate and/or confusing;
b. the instructions were inadequate and/or confusing concerning
the taking of the breath test;
c. there was no valid refusal;
d. there was no factual refusal to take a chemical test;
e. there was no knowing and/or intelligent refusal;
f. any alleged refusal was due to operator's error;
g. the processing did not comply with the Cumberland County
procedures and/or procedures set forth in 67 Pa. Code §24;
and
h. the motorist was confused concerning the operation of the
breath test and any consequences of any alleged refusal.
WHEREFORE, Your Pe~oner prays Your Honorable Cou;t to hold a hearing to determine
the validity of the license suspension outlined in Exhibit A.
2233 N. Front Street, Harrisburg, PA 17110
717-234-7051, Attomey for Petitioner
Dated: /.~.,-~,,..~ )
2
~PIZ-03-O] TU£ 10=17 RI1 ~nGB¥ R~L HOIql)R. FR~{ HO, 7121~q78953 P. UI
CUMMONNEALTH OF PENNSYLVANIA ....
U£PARTHENT OF TRANSPORTATION ....
Bureau af Driver L/come,no
Harrishure, PA 17123 ....
APRIL OS~ 2001
RONALD E STINE O~O&66114203aq9 001
111 SKYLINE DRIVE
17281894
MECHANICSBURG PA 12055 U2/DT/~96D
As a result of your vJclatton cf Section 1547 of the
VolliCle Cede, CHEMICAL TEST REFUSAL on O~/ll/2DO]~ your
dr/vino priv/le§e ls being SUSPENDED for a period
YEAR~S).
II~ order to comply ~'bh this sanction ~eu are required to
retorn ~1~¥ current dri~lorts 11cense~ ]earner's permit and/or
tnalpornrv driver's license (camera card) in your possesslon
no later th~m the of.Fectlve date ~isted, If ~ou cannot
comply H.t[h 'ehe requirements stated above~ you are renutred
Lo submit o D[.[&LC Form or a sworn affidav/[ stating that
~ULI are a~are cf the sanction agalnst your driving pr/vi-
l~ge, PatZure to comnZy vJth this not/ce $hall result
~his Uurt~au referring this matter to the PennsyZ¥on/a State
Police for pro~ecubton under ~ECTZDN 1571(a)[~) of the Ve-
A}though ~lte ]a~ mandate~ ~hat your drtvtng privilege
Ufldel' su~penGien even Lf ~ou do net eurre~de~ ~eur 11canae~
CredO{ tt~11 ,ct begin Lfnti~ al1 current drtver~s license
i~-'nduc[(:;), ~l;e D[.]6LC Form, or a ]et~er acknowled95ng your .......
nanet~on ~s i:oce~ved In this Bureau.'
~HEN THE OEPAR'rHENT RECEIVES YOUR LICENSE DR AEKNO~LEDGE-
HFNT, ~E ~/LL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE TN~S
I([:CE[P'r ~[TII[H 15 DAY~ CONTACT THE DEPARTMENT /MNEDIATELY.
DTIIERH[SE~ YOU ~[LL NOT BE GIVEN CREDIT TDHARD SERV[NG
~ANCT~DN.
1he effective date of suspension ls 05/08/2001, 1Z;01 a.m.
NARNTNG~ If you ara convicted for driving
/1cerise i~ S~l~eended, the penalties ~111 be~ a MINIMUH I
of 90 d;mys Jl~pr~snnment AN~ a ],OOO fine AND veer I
license ~ill be suspended ~or
R?R-03-01TUE 10:17 RH ~n88Y R~H~L BOND~. F~X NO. 71~aq78853 P. 02
O J 08&6'1 I.'1205699 ....
soo tho anclosod oppZJcation for restoration fee
Ynu havo tho right to a~neaZ this action to thm Court of
Common P~ns (Civi! ~iv{siun) ~i~hin ~0 days of
date, APR{L 0~, 2001, of th~s ~etter. Z~ you ~Ze an appeaZ
~n ~ho county cou.~, the court w~l~ g~vo you a ~me-stampod
certified copy of the aS#aa1. In order for your appea~ to
I)u.valid~ yuu must-sand th:i~ ~ime-stamped certified copy-o~ ....
%1~ appe:~] b~ cort~flaa m~i! to:
P~l~y[v~lt~a ~opRrt~oII~ O~ Transgarta~on
O~fice e~ Chief Counse!
Third F~oor, Rivarfront ~fftce Center
Hnrrisburg, PA
Sincerely~
~urea. of Drtver Ltcens~nu
SEND FEE/LZCENSE/DL-~LC/TO: [NFORHATZON (?=00 A~ TO 9=00 PHI
Llap~rtmellk o~ TrailSpor~a~ion IN STATE
~uroau of Driver Licensing OUT-OF-STATE 717-391-&190
P.O, Box 6869~ TOD IN STATE 1-800-2gS-OGT&
H~rr~sbtirg~ PA ~TZg6-8695 TDD DUT-OF-STRTE
WE DO HEREBY CERTIFY THAT
aY MANCKE, WAGNER, HERSHEY & TULLY
VERIFICATION
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
P?,.C.S. Section 4904. relating to unsworn falsification to authorities.
Date
RONALD E. STINE : IN THE COURT OF COMMON PLEAS
Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Respondent
AND NOW, this _~ day of ~ ~ ~. ,2001, upon consideration of the
within Petition, it is hereby ordered and decreed that a hearing be held on the ~q,~'day of
, 2001, at ,~;00 o,clocki°'~'Courtmom / . Cumberland County
Courthouse, Carlisle, Pennsylvania.
Notice of said headng shall be sent by certified mail to the Department of Transportation
by Petitioner's attomey at least sixty days prior to the date of the hearing.
By the Court,
U' '"
~ '7'-
: ~' .~. ~ -,
-~'q'
./
RONALD E. STINE, : IN THE COURT OF COMMON PLEAS
PETITIONER : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
v. : NO. 2001-2477
:
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION, : LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING, :
RESPONDENT :
MOTION FOR CONTINUANCE
The Commonwealth of Pennsylvania, Depact, nent of Transportation, Bureau of Driver
Licensing (Depachnent), by and through its attorney, George H. Kabusk, Esquire, respectfully
represents as follows:
1. The Department mailed to Ronald E. Stine a notice dated April 3, 2001 informing him
that as a result of his violation of Section 1547 of the Vehicle Code, relating to Chemical Test
Refusal, on February 11, 2001 his driving privilege was being suspended for a period of one year.
2. Mr. Stine filed an appeal of the above-mentioned suspension in the Court of Common
Pleas of Cumberland County.
3. A hearing in the matter is scheduled for July 23, 2001, at 3:00 p.m. in, Courtroom No.
1, Cumberland County Courthouse, Carlisle, Pennsylvania.
4. The refusal was rz.'ported to the Depa,lxnent of Transportation by Officer Richard J.
Tamanosky, II, of the Lower Allen Township Police Department.
5. Officer Tamanosky was the arresting officer in the incident and is a witness for the
Depmii~ient of Transportation in this matter.
6. The undersigned was informed by Officer Tamanosky on May 24, 2001 that Officer
Tamanosky will be unavailable to testify on July 23, 2001 because Officer Tamanosky is
scheduled for u-aining on July 23, 2001.
7. The undersigned counsel respectfully requests a continuance and that the case be
scheduled at a later date.
8. The motorist's operating privilege has been restored pending appeal pursuant to
Section 1550 of the Vehicle Code.
9. The undersigned counsel contacted John B. Mancke, Esquire, attorney for the
poftioner, and Mr. Mancke indicated he has no obj~ion to the granting of a continuance in this
matter.
WHEREFORE, the Depmiff~ent respectfully requests that its Motion For Continuance be
granted and that the aforesaid heating be continued.
Respectfully submitted,
Kabusk, Esquire
Assistant Counsel
Office of Chief Counsel
Riverfront Office Center
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Date: May 31, 2001
RONALD E. STINE, : IN THE COURT OF COMMON PLEAS
PETITIONER : CUMBERLAND COUNTY,
: PENNSYLVANIA
NO. 2001-2477
¥.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION, : LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING, :
RESPONDENT :
VERIFICATION
I verify that the statements made in the Motion for Continuance are true and correct. I
understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904,
relating to unswom falsification to authorities.
Assistant Counsd
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: May 31, 2001
: IN THE COURT OF COMMON PLEAS
PETITIONER : CUM/~ERLAND COUNTY,
: PENNSYLVANIA
: NO. 2001-2477
COMMONWEALTH OF PENNSYLVANIA. :
DEPARTMENT OF TRANSPORTATiON, : LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING, :
RESPONDENT :
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the Motion for Continuance upon the
person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania
Rules of Civil Procedure:
By first class mail, prepaid, addressed to:
John B. Mancke, Esquire
Mancke, Wagner, Hershey & Tully
2233 North Front Street
Harrisburg, PA 17110
Assistant Counsel :,.
Department of Transportation :.~
Riverfront Office Center
1101 South Front Street ""
Harrisburg, PA 17104-2516
(717) 787-2830 ..:
DATE: May 31, 2001 '.~'
RONALD E. STINE, : IN THE COURT OF COMMON PLEAS
PETITIONER : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
v. : NO. 2001-2477
:
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION, : LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING, :
RESPONDENT :
ORDER
AND NOW, this r]~ dayof '-~ ~4.n('~ ,2001, the
Depm'tment having requested that the above-mentioned matter be continued because Officer
Tamanosky, who is the arresting officer and a necessary witness in this matter, is unavailable to
testify on July 23, 2001, and without objection of the continuance by the petitioner, the appeal
filed in the above referenced matter is CONTINUED and RESCHEDULED for the
/.gl~ dayof ~~ ,2001, at/t0''q~'--~-'m',inC°urtr°°m
Number 1 in the Cumberland County Courthouse, Carlisle, Pennsylvania.
tr. :_ BY THE COURT
· .:
J.
DISTRIBUTION: ~
G~rg~ H. ~busk, Esqui~, Commw. of Pa., D~t. ofTr~s., Riv~nt Office Cent~, 1101 .~
Sou~ Front S~, H~sbu~ PA 171~-2516 ~ ~,
Jo~ B. M~cke, E~ui~, M~cke, Wa~er, Hemhey & Tully, 2233 No~ F~nt S~, ~ ~
CHEMiCAL TEgTING WARHINGg AND REPORT OF 01086 61 203 9
REFUSAL TO HUBMIT TO CHEMICAL TEaT·He A9
AUTHORIZED BY ~ OF THE VEHICLE CODE · ·
I'. Phi# bi Id~lnd thlt you irl noW dr'reTell hr ddv~ under IM klluenau d ·l~d o~ · aufltfobld lUboterm Persulnl Io
mb· Veldde Ondm.
· n the, au muhedl to a ch·aka1 teat of ~C'T~/~c'~ (bm~dk Mood or udau. C)lflaur dmovel 1bi ehevlk~ telL)
2 I mm fequgMI g Y ....... -,-emlcilteet.aurogmwtlngpl~vgegow#lbilUlpendndlorl
3. It Il my duty. mm · poik:m alflmlr, to inform you Ih·! Il you rmume to luomml Eo imm sA, ·.
pednd el one yea. . ........... ~qmnck PJ-htl. Indndiog I~· dghl to ipglikwllh · Immyer
· a! The coneUlulional dOM. you he. au B cf lade. d .d.e I~ ?,~_ _O~lt. _m_a°nl~Y ~_..~o~.=,~:~l~ ehe~l~ teatJng'pro~dum under pero.ylv~', imm
Conical Law, which lo · civil, not · ~,mnm laugh,_ _,u_. u... _,__ e.kb,, 1bi chemlrad tell f~clmted by Ihl polka omaur nor ua yuu
k~ ,V,v, hm~ M dahlte Ipauk to I I~qQ~lr, or mlyonl me·, m'?'.m'':u ..__--,,--, ........ mte ItJbldltO 1he tell fequulted by Ehl pollauolth:ur
.; .......... the olllaur 1o lubn11' tO IhS Clmmlem mL uae' sty"
remade orient w~en srk~cl by!. ~t.._, ..., ,--ur o,'~,uams midi·ge will bi suep·~l~ Ior one yep[. ~ ......... ,__ ,.. ,ad.a,..
. /~.'---' --~..I K~ ..hMB! in ~nd(·~ I~lllng under 1he Implies Uanvem ,.-- ,,,-~ ........ .
~ while unde~ the Inllu~nau of idrohol or i aunlfolhld subltenau.
nitytoeubm#tochemlc~Jt°stlng'ofOflimir '"~ ~. /~...~..-~s,~,,,~,~ DM·: ~'"'i%-~'
Signature : · /'
I have been advised of the above.
Sign·tUrn o! Mptorist:
iL -
Mo~rl~t alu·ed lo sign, el,er being sdvlved.
AFFIDAVIT
I. 'The mba. melorbt wee Ideood under ~res, ,or ~ _d~.l._n~goufln~r~ ~ mo~M~rlH°ll~a.rda_b~ndn;,uob~n~nur~ m~l~ -°' I~
ve~k~B Oode, ~nd 1here we.re. ~u?~m..~ J? .ou~n~. ,s~°h ,°~ ol Id0ohal ur · aunlfokd'mubmtenve or bolh. .
....... · n m~daut In which Umuro~ur·ter or pBsver~ur ol Bny vetdde bw~ved of · pndeBMmt mqubd
t~rolmro! ut · .re?lind IB~Iy or w.ml MN.ed...._ -hendad tel't-- ·~ ·ulhodzed by ~ctkm 1647 of b~· V·ld~ Gode.
8. The eh·ye mol·ds! wss .Inm!~?.~r/,_B...P~'~, ~ ,~ro~ teldna. '
· Io lUbUdl Io Ih~ ·bimlrol mLYo,' mull e'll give Ih~ mol·rid in oppodU-
OF~GEB.IL~ Th, rdu,,I ~o don Ih. la I.o r m. [¶ _n ,o_t .B_I~, ~U~lndlvldud wse opermlq · ·orator·bi re·lot vehicle wh#, bring shy
n · rhea,roi 1roi mller.mle.wmg ~.n_!_~ '~'~,,'at dso Mmnlsl~ Ihs fevers· side of Ihle form. ·
~ the c s Iaaa ........... -
alcohol or I ran#oiled eube"nso In Ihmr y ' ' ' ~ c~ ;'~ ~,c'-. ,-'~Z~
OIIIver SIgn·,um: ~ ' '*/' '" "-'- L.-. 7
ANO SWORN ~,2..MO'
OIrK:erNsme: l~cha~d, J. T'*~oskT? ZI
BmJgeHumher:. '182/* .dudaul~Uon:.Z,ove~' .~l. leG_.~.._._~.._~.._~.
pbone:(717 ! 975-7575
Melllng&ddmss 1993 U~,,~I A~e.
Forwurdto: Kn,~? T.141*t. PA 17011
I~epartmenl Gl Transportation
Bureau of Driver Licensing
P.O. 9'(~x 2SS3 Hate: Any purtlnrot lac'tm rot c;ovof'ed by ih· eli,devil ehoukl bo SUb~IiLEKI
Harrisburg, PA 17'105 seperele sheet sad et,ached hereto. Thai sboel should Inch3de the nmmfl
~ddillonal witnesses roe·ss·fy to pro?e the elemrots Io which you have idtestc
· ~/ · SECURED BY COMPLETttlQ FORM 0~-61
THI~ FORMMAY BE DUPLICA~. /~' ,fu,. ~/ 31TiONALSUPPLIESOFTHISFORMk~A¥ 8;
'-n
n',' ~,-. :.
oO
~Cl~mOI
-_. n -~, -,,..
B~ ~' ~o1~ --4
::onn ~ '~0 -I '-I" ~l "~- "0 '
>;,[~ ~ ~- :;"] ,1~:::~
~00~
zI 0~,
>oC~
O~m'~
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF CUMBERLAND )
I certify that the attached copies of the Calibration & Accuracy Certificates
CALIBRATION ACCURACY
dated_ 1/15/01 / 1/15/01 areatrue, correct, and complete
copy of the original Calibration & Accuracy Certificates.
In witness whereof, I hereunto set my hand and official seal.
~All~t, p~nfl~n'~18 A.a,u~.C.,m d Uul..I '
COIVIMONWEALTH OF PENNSYLVANIA
DEPARTIVlENT OF HEALTH
AND
DEPARTMENT OF TRANSI'ORTATION
OF
Breathtesting Device Calibration
Janua~:y 15,200T
Tills Is Io certify that on Date
an INTOXILYZER 5000, serial number 64-0012"/4
was calibration tested, and t!~e degree or accuracy is within tile range speclfi.ed in Ihe
Department of Health nnd Department of Trnnsportation Re~nlnlions promulgated
under Sect|on 1547 (c) of the "Vehicle Code", the Act of June 17. 1976 (P.L, 162,
No. 81'}('/5 Pa. C.$. 1547(c). as amended.
CUMBERLAND COUNTY DUI DEPARTMENT
COURTItOUSE ~
CA~LISLE, PA 17013
~=.)' (~haoo nkv January' 15,200 [
Certified Dale: Janl~ry 15,200i
Absolule
Test RcinJli Co~slalll Difference
A. 0~9
B. 050
LOT I do 160 C. 0~8 ~ .05~J 002 ~
048
TOTAL 006 ,
RVERA~K pEVIATION
Absolule
Tesl ~esulls Conslanl Difference
B. .100
LOT ~ 00190 C. . ~
D .....
TOTAl. 00~
AVEEA(~E I}EYIATION
Absolule
Test Results Constant* DifFerence
013
TOTAL
NOTE: ALL E~RIES MUST 118 TYPEO.
COMMONWEALTll OF I'ENNSYLVANIA
DEPARTMENT OF I IEALTIi
AND
DEPARTMENT Glr 'I'P, ANSI'OI~,TATION
OF
Breathtesting Device Accuracy
This is Io cerli[y t~t on January 15,2001
Date
nll INTOXILYZER 5000, serial numbcr 64-OOI
wes res[ed for nceurney, nqd Ihe deBree of eecm'ney Is wllllln Ihe rmiBe speelfled in
Ihe Depnrlme,fl of ! lenllh nnd Depnrtment oF Trmtslmrlnl|on ReBolal. ions
promuIsnled under 5eellon ! 547 (~) oF the "¥ehlele Code", Ihe Ad. of June 17,
(ILL. 162, 1'4o. 81)(7~ Pn. C.S. 1547(¢), ns nmel~ded.
CUMIJERLAND COUNTY DUI DEI'ARTlvlENT
COURTHOUSE ~~,~
CARl. ISLE, PA 1701]
(717} 240-6222 .
~ ill '1'~ inlOr~
George J Chaposky January 15,2001
..... Dale
1 )pc Nmne Ilcfe .-
cc',~r..',c"~'~:.~L:~ J~ ..... PROBABLE CAUSE AFFIDAVIT
COUt.J ' Of D,,yPh~r~ s~O~S
09101 COMMONW~L~ OF
~S ~ p~NSYLVANIA
~ICSB~G PA 17055 0000 00
nON E STI~ 0~: L 082544-0
~.S.A.: ~ %1 0.0.8.: 02 07 1960 S.S.~ 207 &6 &311
PA0210600
does not i~tve a d~r ~ ~ da~
s~lt ~pmve or d~~e ~ ~e May~
A I a~se ~e a~e nam~.u-, '- - e b~ who is d~ 8s
1 ~ I accu~ an individ~l wRo~ name ~s un~n ~ m
__ I accuse ~e d~ndant whose name and popular designa~on
have ~ere~re designa~d as John Doe
with violating ~e ~nal laws of
RT [5i~% ~ onora~mo2 11 2001 0056
the accus~ were:
STI~ DID ~, OPE~ OR W~ ~ A~ ~SI~ co~L OF
~ MO~ OF A ~I~ ~I~ ~ER ~ ~u~ OF ~COHOL
· Ct ..,dlNAL cOMPLAINT AND
PROBABLE CAUSE AFFIDAVIT
· Page 2
/~L OF W'rlIcH WERE ~ST ~E ~ ~ DZ~ OF ~ CO~~
~S~V~ ~ CO~Y ~ ~ ~ OF
O~ IN V~o~T~ON OF 373~ A1 0F ~ ~ OF 75
o~CE OF
OR ~
** DR w/BL ~C h~ .10~ OR
STI~ DID ~LY DRY, OP~ OR W~
cobOL OF ~ MO~ OF A ~ ~LE ~ ~O~ OF
-~ OF ~ CO~~ OF
~coHOL BY ~T IN HIS B~D ~ .10% O~
~L OF ~I~ ~ ~ ~ ~ A~ OF 'A~ OF 75
p~S~ ~ co~Y AA I
OR IN ~O~TIO~ OF 3731
O~I~CE OF
OR ~E
** ~LESS
ST~ DID DRI~ OR OpE~ A ~ICLE ~ A
D~NS~ A ~ESS DIS~ FOR ~ s~E~ OF p~ONS
OR pRoPERS- ~ p~ DI~I~ OF ~ CO~~ OF
~/ .... ~ b~NST OF
p~s~V~~ ~u u 3714
O~ IN ~O~TZON OFO~i~CE OF
or a summons be issued and that the accused be required to answer the d"
3. I ask that a warrant of arrest - -~ an'set to issue, the attached affidavit of probable cause n,~
· In order for a wan'am .~, .
I have made ( ._ ,...~.-- +h seuln autho~tY.)
completod and sworn ~o --,,,,'- _.e I g best of my knowledge or info,'n
I verify that the facts set forth in this complaint are true and correct to the
4. and belief. I certify the comptaint has been properly completed and verified, and that them is probablE:
for the issuance of process. This verifica'don is made subject to the penardes of Section 4904 of the Cri~
Code (18 PA. C.S. 4904) relating to unswom falsification to authorities.
Date: ~ebrt,.a'-~ 1.5, 2001' _,~. . "~7c.- ,.--~/-~.~.zY' ~
verified, and that there is pro e cause for issuance (SE ni
1
1
1
: IN THE coURT OF COMMON pLEAS OF
cuMBERI~%IgD COUNTY, pENNSYLVANIA
RoNALD E. sTINE,
petitioner :
: CIVIL ACTION - LAW
COMMONWEALTH OF
pE}~NSYLVANIA, DEPARTMENT :
oF TRANSpoRTATION'
BUREAU OF DRIVER :
LICENSING, : No. 01-2477 CIVIL TERM
Respondent
AND NOW, this 1st day of AuguSt, 2001, upOn
consideration of petitioner'S License SuspenSi°nAPpeal in
the above-captioned case, and following an initial period
of hearing, the record shall remain open, and counSel are
requested to contaCt the Court'S secretary to schedule a
seCOnd period of hearing-
It is noted that at the time of adjournment
on t°day's date, the Department of TranSportation had not
yet completed its case-in-chief' It is noted further that
at the time of adjournment, Richard E. Fitzgerald, booking
agent, was being subjected to direct examination by the
Department of Transportation' Additionally' it is noted
that at the time of adjournment, commonwealth's Exhibits 1,
2, 3, and 4 had been identified and admitted- Appellant'S
Exhibit 1 (criminal complaint) had been identified but not
yet admitted. '
It is further noted that Commonwealth s
Exhibit 4, which is a videotape of certain events at the
Booking Center, was admitted with the understanding that,
to the extent that either counsel deemed the verbal
contents of the videotape relevant to the case, either a
transcript of the words on the videotape would be presented
at the next court session for admission, or counsel would
bring out through testimony of a witness the pertinent
verbal contents of the tape.
Pursuant to an agreement of counsel, the
Department of Transportation will be permitted to have
possession of Commonwealth's Exhibit 4 (videotape) for
purposes of making a transcript and a copy of the tape for
Appellant's counsel.
By the Court,
J(]W,sl y Olerr3r.,
John B. Mancke, Esquire
2233 N. Front Street .
Harrisburg, PA 17110
For the Petitioner
George Kabusk, Esquire ~,~\
PennDOT, Office of Chief Counsel .
Third Floor, Riverfront Office Center
Harrisburg, PA 17104
For the Respondent
wcy
DONALD E. STINE, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : CIVIL ACTION - LAW
:
COMMONWEALTH OF :
PENNSYLVANIA, :
DEPARTMENT OF :
TRANSPORTATION, :
BUREAU OF DRIVER :
LICENSING, :
Defendant : NO. 01-2477 CIVIL TERM
ORDER OF COURT
AND NOW, this 12th day of September, 2001, upon consideration of the order of
court dated September 12, 2001, sustaining the license suspension appeal in the above
matter, the hearing scheduled for October 10, 2001, is cancelled.
BY THE COURT.
J.~sley Oler, ~ J. ~ '
John B. Mancke, Esq.
2233 North Front Street c'~ c',
Harrisburg, PA 17110 ~c: :o
Attorney for Plaintiff q? ~'I'~ :..
Oeo ge H Kabusk Esq r-..v ~'."
Office of Chief Counsel ~ ~-~i .... .' '.':
Department of Transportation ~.~ _ ,.~':~..
Riverfront Office Center, 3rd Floor ~ ~,~ -<
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Defendant
RONALD E. ST[NE, : IN THE COURT OF COMMON PLEAS
PETITIONER : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
COMMONWEALTH OF PENNSYLVANIA,: NO. 01-2477
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
RESPONDENT : LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this [Z.~'~ dayof ~e ~ ~'~ ~ e.Y ,2001, upon
consideration of the Department's Motion to Sustain License Suspension Appeal, this Court
grants the Department's Motion to Sustain License Suspension Appeal. Accordingly, the
License Suspension Appeal is Sustained and the suspension, which is the subject of this appeal,
shall be rescinded.
BY THECOURT
DISTRIBUTION:
George H. Kabusk, Esquire, PennDOT, Office of Chief Counsel, Riveifiont Office Center-3rd
Floor, 1101 South Front Street, Harrisburg, PA 17104-2516
John B. Mancke, Esquire, 2233 North Front Street, Harrisburg, PA 17110
RONALD E. STINE, : IN THE COURT OF COMMON PLEAS
PETITIONER : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
COMMONWEALTH OF PENNSYLVANIA,: NO. 01-2477
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
RESPONDENT : LICENSE SUSPENSION APPEAL
MOTION TO SUSTAIN LICENSE SUSPENSION APPEAL
AND NOW, comes thc Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Depa~h~ent), by and through its attorney, George H. Kabusk,
Esquire, and respectfully represents as follows:
1. The Deparhnent mailed to Ronald E. Stine, O.L.N. 17281894, a notice dated April
3,2001 informing him that as a result of his violation of Section 1547 of the Vehicle Code,
relating to Chemical Test Refusal, on February 11, 2001, his driving privilege was being
suspended for a period of one year as mandated by Section 1547 of the Vehicle Code.
2. Mr. Stine filed an appeal on or about April 27, 2001, of the above mentioned
suspension in the Court of Common Pleas of Cumberland County.
3. The petitioner alleged, among other things, that he did not refuse to submit to the
requested chemical test, that the alleged refusal was due to operator's error, and that the
processing did not comply with the procedures set forth in 67 Pa. Code § 24.
4. The Department restored the petitioner's operating privilege pumuant to Section
1550 of the Vehicle Code.
5. The matter was scheduled for hearing on July 23, 2001
6. The matter was continued and the hearing rescheduled to August 1, 2001.
7. A hearing in the matter was held on August 1,2001.
8. At the hearing held on August I, 2001, the Department presented the testimony of
Officer Tamanosky, the officer who reported the refusal, the testimony of Agent Fitzgerald, the
intoxilyzer operator.
9. The Department showed a videotape of the incident as related to the petitioner and
the intoxilyzer.
10. The petitioner provided a copy of the transcript of the preliminary hearing
regarding the criminal complaint filed as a result of the alleged incident of Driving while Under
the Influence on February 2, 2001 and a copy of the Intoxilyzer 5000 Breath Analysis Instrument
Operator's Manual.
11. At the time of the adjournment of the hearing scheduled on August 1,2001, the
Department had not completed its case-in-chief, the record remained open and subsequently a
second period of hearing was scheduled for October 10, 2001 at 1:30 p.m. in Courtroom number
I of the Cumberland County Courthouse, Carlisle.
12. The Depa~t,~ent's regulations relating to breath test require the subject to provide
two consecutive actual breath tests, without a required waiting period between the two tests. 67
Pa. Code § 77.24.
13. The petitioner attempted the breath test on the lntoxilyzer 5000 and provided one
valid breath test sample then the instrument produced a message of"invalid sample." See
attached print out marked as attachment 1.
14. According to the Intoxilyzer 5000 operator's manual an "invalid sample" message
indicates that the subject's breath sample contains residual mouth alcohol.
15. According to the Intoxilyzer 5000 operator's manual when the instrument
indicates an "invalid sample" the instrument completes the mode sequence, prints "invalid
sample" and prepares itself to begin another test. Additionally, the manual indicates that the
intoxilyzer operator should observe the subject for at least 15 minutes before beginning another
breath analysis.
16. After the intoxilyzer indicated an "invalid sample" during the first breath test, the
petitioner was not observed for 15 minutes before the second breath test was attempted.
17. The petitioner attempted another breath test and the intoxilyzer indicated an
"invalid test." See attached print out marked as attachment 2.
18. According to the Intoxilyzer 5000 operator's manual an "invalid test" message
indicates that the start test button was pushed at the wrong time, the evidence card was pulled
from the printer, or the instrument's pump inadequately purged the sample chamber and that the
instrument canceled the test.
19. According to the Intoxilyzer 5000 operator's manual when the instrument
indicates an "invalid test" the instrument cancels the test and prepares itself to begin another test
and when the instrument display indicates that the machine is ready to begin another test, the
operator should push the start test button and verify that the instrument does not produce another
invalid test message.
20. The Dc'pm tmental regulations at 67 Pa. Code § 77.24 provide that the breath tests
shall be performed in accordance with accepted standard procedures for thc operation specified
by the manufacturer of thc equipment or comparable procedures.
21. After the intoxilyzer indicated an "invalid test" during the second attempted
breath test, the petitioner was not afforded an additional opportunity to submit to the breath test
on the intoxilyzer.
22. Based upon the "invalid test" print out after the second attempted breath test, the
petitioner should have been afforded an additional oppermnity to submit to the breath test on the
intoxilyzer.
23. The undersigned contacted the petitioner's counsel, Attorney John Mancke, and
Attorney Mancke does not object to the granting of this motion.
WHEREFORE, the Department respectfully requests that its Motion to Sustain License
Suspension Appeal be granted and that the aforesaid License Suspension Appeal be sustained.
Respectfully submitted,
·
G~-~ge ~ Kabusk, Esquire
Assistant Counsel
Office of Chief Counsel
Riverfront Office Center
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Date: September 7, 2001
FEOE~AL S~NAL~'~C.~P. Z C~
INTOXILYZER - ~.~OHOL RNALYZE~
PR ~ODEL 5000~"/
TE~T' .~ ~'B~C ',~'"T~ME
O[~GNO. BT.ZC OK "0Z:57
AZR BLANK .. .000 ~ 01:57
SUBJECT TEST .lB? 0i:5~
AIR BLANK .000 01":59
INVALID SA~PL.E ,X~X 0~:00
AIR.BLANK .000 02:00
· .. , · CAL.'.CNECK .O~g 02:00 ' ' ' ''
AIR BLANK .000 0R:0!
NO RFI DETECTED
CUMBERLAND COUNTY DUI DEPT.
SN Gg-OOi27W ~ 0~?11701
£72.01 0~:11
INVALIO TEST ~' .-
CUMBERLAND COUNTY DUI DEPT.
RONALD E. STINE, : IN THE COURT OF COMMON PLEAS
PETITIONER : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
COMMONWEALTH OF PENNSYLVANIA,: NO. 01-2477
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
RESPONDENT : LICENSE SUSPENSION APPEAL
VERIFICATION
I veri~ that the statements made in the Motion to Sustain License Suspension Appeal are
true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C.
S. Section 4904, relating to unswom falsification to authorities.
CJeorge I~. ~abu~k -
Assistant Counsel
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: September 7, 2001
RONALD E. STINE, : IN THE COURT OF COMMON PLEAS
PETrrIONER : CUMBERLAND COUNTY,
: PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
COMMONWEALTH OF PENNSYLVANIA,: NO. 01-2477
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
RESPONDENT : LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the Department's Motion to Sustain
License Suspension Appeal upon the person, and in the manner, indicated below, which satisfies
the requirements of the Pennsylvania Rules of Civil Procedure:
By first class mail:
John B. Mancke, Esquire
2233 North Front Street
Harrisburg, Pennsylvania 17110
Geo[ge H.C~abusk - ~-
Assistant Counsel
Department of Transportation
Riv~rfiont Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: September 7, 2001