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Home My WebLink About11-6299Court of Common Please of Pennsylvania, Cumberland County I (_? C w i (?iCt'wl James Peter HIXENBAUGH, Petitioner ^' 1 V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPO> -T I 1, ' = Respondent July 21, 2011 PETITION FOR APPEAL FROM DRIVER'S LICENSE SUSPENST .7 L :-, i r Respectfully submitted, Jason B. Duncan, Esquire, Stone, Duncan, & Associates, 8 N. B-altirridre Street, Dillsburg, PA 17019, (717) 432-2089, Attorneys for Petitioner, James Peter Hixenbaugh. AND NOW comes Petitioner, James Peter Hixenbaugh, by and through his attorney, Jason B. Duncan, Esquire, and files the following Petition for Appeal from Driver's License Suspension and in support thereof avers as follows: 1. The Petitioner, James Peter Hixenbaugh is an adult licensed driver with a residence address of 750 Poplar Road, Dillsburg, PA 17019 with a Pennsylvania operator's number of 20310012. 2. The Respondent is the Commonwealth of Pennsylvania, Pennsylvania Department of Transportation with offices for the purposes of service of this Petition at 3rd Floor, River Front Office Center, Harrisburg, PA 17104-2516. On or about July 19, 2011, Petitioner received an Official Notice of Suspension from the Pennsylvania Department of Transportation notifying him that his driving privilege was being suspended for a period of 1 year effective August 22, 2011. (A true and correct copy of this notice is attached and marked as Petitioner's Exhibit "A"). 4ga.00 pd a ury e1" 140(9b . 0.24-2c/85- 4. The suspension arises out of Petitioner's alleged violation of Section 1547 of the Pennsylvania Vehicle Code for his refusal to submit to a chemical test. 5. This suspension is erroneous as a matter of law due to the fact that petitioner applied for and was accepted into the Accelerated Rehabilitative Disposition (ARD) program for the alleged offense. As a result of the petitioner's acceptance into the ARD program his license was suspended for 60 days in accordance with 75 Pa.C.S.A. 3807 (d). 6. Accordingly, petitioner's operating privileges were restored by the Pennsylvania Department of Transportation after serving the sixty day license suspension on April 24, 2011. A true and correct copy of the notice restoring his operating privileges is attached and marked as Petitioner's Exhibit "B." Any further suspension for the same offense is contrary to law. The suspension proposed by the Department is illegal, improper, and invalid for some or all of the following reasons: a. Petitioner participated in an approved Accelerated Rehabilitative Disposition program in Cumberland County Pennsylvania as required by 75 Pa.C.S.A. 1552, and was subject to the mandatory license suspension for participation in such a program in accordance with 75 Pa.C.S.A. 3807 (d). Further suspension for the same offense after petitioner served the mandatory suspension is contrary to law, improper, and invalid. b. Suspension of petitioner's operating privileges for an additional one year period would be contrary to the constitution of the United States and of Pennsylvania in that it represents double punishment for the same offense and is therefore in violation of the Due Process clause as well as the double jeopardy clause. c. Petitioner was not given the implied consent warnings in compliance with Section 1547(b)(2). The officer failed to adequately advise the Petition of the consequences of refusing to take a breath, blood or urine test. Further, the Petitioner was not properly advised or adequately advised of the total consequences of refusing to take the breathalyzer test per the provisions of the Motor Vehicle Code. d. Said suspension is otherwise in violation of Section 1547 of the Vehicle Code and/or case law. WHEREFORE, Petitioner respectfully prays that this appeal be allowed under Section 1550 of the Vehicle Code; that a date be granted for a hearing de novo to determine whether petitioner is subject to suspension of his license and that this appeal act as a supersedeas pending said hearing. Respectfully Submitted, y: Jason . Duncan, ?sq,ire Stone, Duncan, & Associates 8 N. Baltimore Street Dillsburg, PA 17019 I.D. # 87946 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day I have served a true and correct copy of the Defendants Petition for Appeal from Driver's License Suspension via United States Certified Mail to: Pennsylvania Department of Transportation Bureau of Driver Licensing P Floor, River Front Office Center Harrisburg, PA 17104-2516 Dated: Tara Stonebraker Paralegal EXHIBIT "A" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: JULY 18, 2011 JAMES P HIXENBAUGH WID # 111926278238160 001 750 POPLAR RD PROCESSING DATE 07/11/2011 DRIVER LICENSE # 20310012 DILLSBURG PA 17019 DATE OF BIRTH 11/27/1963 Dear MR. HIXENBAUGH: This is an Ofticial 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 05/29/2010: ¦ Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 08/22/2011 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 0812212011. You may surrender these items before, 08/22/2011, 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 $13.50. You must present two (2) forms of proper iden- tification (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 nota- rized 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: Pennsylvania Department of Transportation 111926278238160 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 con- firming the date that credit began. If you do not re- ceive 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 Pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 08/22/2011. Sincerely, 9?tx ?-- - Z g &,,? Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 5:00 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 EXHIBIT "B" COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing JAMES P HIXENBAUGH WID # 111089223085374 002 750 POPLAR RD PROCESSING DATE 04/18/2011 DRIVER LICENSE t 20310012 DILLSBURG PA 17019 DATE OF BIRTH 11/27/1963 LICENSE IN BUREAU 110616226491164 Dear MR. HIXENBAUGH: Your driving privilege is restored effective 04/24/2011. Please drive carefully. PennDOT remains dedicated to safety on Pennsylvania highways because, as our customer, you are important to us. Sincerely, 9?ju ?-- - Z g O'k Janet L. Dolan, Director Bureau of Driver Licensing /1- 619q Civil Term Court of Common Please of Pennsylvania, Cumberland County James Paul HIXENBAUGH, Petitioner V. M COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPOgA_TIUN, Respondent July 21, 2011 3„ ORDER OF COURT W , c? AND NOW this ( day of , 2011, after consideration of the within Petition for Appeal from Driver's License Suspension, IT IS HEREBY ORDERED that a Hearing is GRANTED and pursuant to 75 PA C.S.A. 1550(b) a supersedeas of the License Suspension ist GRANTED until final determination of the matter by this court. 6e a.A , /1 30 BY T J. of a-, $.DOhMn g ?5' I PA 6-p+,,f (runspor4o:koK- p?j