HomeMy WebLinkAbout04-4907
AUSTIN JAMES SOURBEER,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 0'1- 4<;01
COMMONWEALTH OF
PENNSYL VANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
LICENSE SUSPENSION APPEAL
APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE
AND NOW comes the Appellant, Austin James Sourbeer, by and through his
attorney, Karl E. Rominger, Esquire, at Rominger, Bayley & Whare, respectfully avers the
following:
1. Appellant resides at, 70 Walnut Street, Carlisle, Pennsylvania, 17013.
2. Appellant received Notice dated September 10, 2004, stating that as a result of
his alleged violation of Section 1547 oftbe Vebicle Code, Cbemical Test Refusal, on July 31,
2004, her driving privilege was being suspended for a period of one year, effective October
12,2004, at 12:01 a.m. A copy is attached hereto as Exhibit "A".
3. Suspension is improper in
(a) The implied consent warning was legally inadequate and incorrect as
read.
4. The implied consent warning was mixed witb a warning affecting tbe criminality
oftbe statue and discussing enbanced criminal penalties and as such was confusing
and missleading and contradictory.
5. The warning is incorrect wbere it says that an attorney and/or the right to
remain silent do not apply insomucbas giving consent to a warrantless search wbich
could or would enhance criminal penalties, and does implicate the Fiftb and Sixth
Amendments of the United States Constitution and Article I section Ei~ht and
section Nine of the Pennsylvania Constitution and thus the language as read was in
wbole or in part incorrect and thus has visciated the ability of petitioner to consent
knowingly, inteUigently, and/or voluntarily.
6. The warning is incorrect were it says that an attorney and/or the right to an
attorney and/or the rigbt to remain silent do not apply insomuchas giving consent to
a warrentIess search which could or would enbance criminal penalties does implicate
the Fifth and Sixth Amendments of the United States Constitution and Article I
section Eil!ht and section Nine of the Pennsylvania Constitution and thus the
language as read was in whole or in part incorrect and it amounts to a violation of
the Constitutional Rights and petitioner.
7. 75Pa.CS 1547 as amended violated petitioners Fifth and Sixth Amendment rights
to counsel and against self incrimination, and is tbus unconstitutional.
8. The police officer lacked a reasonable basis to request a blood test as he lacked
probable cause or reasonable suspicion that Mr. Sourbeer was in fact driving at the time of
the arrest.
WHEREFORE, your Appellant respectfully requests this Honorable Court to
schedule an evidentiary hearing on the matter and in the meantime to grant a Supersedeas
pursuant to the Vehicle Code.
Respectfully submitted,
-- ------
rI E. Rominger, Esquire
155 South Hanover Street
Carlisle. PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendant
Date: r/J9i l/
AUSTIN JAMES SOURBEER,
Appellant
v.
COMMONWEALTH OF
PENNSYL VANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No.
: LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certifY that I this day
served a copy of the Notice of Appeal upon the following by depositing same in the United States
Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Dated: '1/3oju t(
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center,
Harrisburg, PA 17104-2516
/7-
~E. Rominger, Esquire
" Attorney for Defendant
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: SEPTEMBER 10, 2004
AUSTIN JAMES SOURBEER
70 WALNUT ST
WID t 042476194345409 001
PROCESSING DATE 09/03/2004
DRIvER LICENSE t 275&6101
DATE Of BIRTH 10/21/19&5
CARLISLE PA 17013
Dear MR. SOURBEER:
This is an O~~icial Notice o~ 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 rEST REFUSAL,
on 07/05/2004:
. Your driving privilege is SUSPENDED ~or a period o~ 1
YEARCS) e~fective 10/15/2004 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 Ccamera
cards) in your possession on or before 10/15/2004. You may
surrender these items before, 10/15/2004, 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 $10.00. You must present two (2) forms of proper
identification Ce.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 licenseCs). 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:
042476194345409
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 licensees), 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.
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 10, 2004, of this letter. I~ 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 NOTZCE OF SUSPENSZON. You
must return all current PennsYlvania driver license products
to PennDOT by 10/15/2004.
042476194345409
Sincerely,
~~,~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
INFORMATION 7:00 a.m. to 9:00 p.m.
IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676
OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 717-391-6191
WEB SITE ADDRESS www.dmv.state.pa.us
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AUSTIN JAMES SOURBEER,
Appellant
v.
: IN THE COUR.T OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: . /t l ./J
: No. Olf/ l-fci ()"7 ~
COMMONWEALTH OF
PENNSYL V ANlA,
PENNSYL VANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
: LICENSE SUSPENSION APPEAL
AND NOW, this
OIDER OF COURT
13 fl<-day of ()~
,2:004, upon consideration of this
APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is Ordered that a hearing on
- f1U Iii r:J
the matter shall be held on the / S day of ~Ullu.L- . ;LtJe> <i;' at 7' -' 30
o'clock ~m. in Courtroom No. J of the Cumberland County Courthouse.
A Supersedeas is granted pursuant to Vehicle Code Section 1550 (b) (1) until such time
that this Honorable Court resolves this appeal.
Distribution:
ft Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center,
Harrisburg, PA 17104-2516
vR6'minger, Bayley & Whare, 155 South Hanover Street, Carlisle, PA 17013
Karl E. Rominger, Esquire
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NO" 1 9 20M
AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAN D COUNTY,
PENNSYLVANIA
v.
NO. 04-4907
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this /7'ft- dayof )z~J
, 2004, upon
consideration of the Department's Motion to Continue because Trooper Styers, who is a
necessary witness, is unavailable due his military deployment, the Motion is hereby granted, and
it is hereby Ordered that this matter be continued generally and rescheduled at the call of either
party.
BY THE COURT
P. J.
DISTRIBUTION:
George H. Kabusk, Esquire, PennDOT, RiverAont Office Cent.~-3rd Floor, 1101 South Front
Street, Harrisburg, PA 17104-2516 f-l(1r.2. 6'\. - 0 S~IILe..e....., { {--- (C, ~O.1
Karl E. Rominger, Esquire, 155 South Hanover S~'J{C~lisle., PA 17013 - ~{{----{c,--,-of
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AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAN D COUNTY,
PENNSYL VANIA
v.
NO. 04-4907
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
MOTION FOR CONTINUANCE
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (Department), by and through its attorney, George H. Kabusk, Esquire, respectfully
represents as follows:
1. The Department mailed to Austin James Sourbeer a notice dated September 10, 2004,
informing him that as a result of his violation of Section 1547 of the Vehicle Code, relating to
Chemical Test Refusal, on July 5, 2004, his driving privilege was being suspended for a period of
one year. See Exhibit 1.
2. Mr. Sourbeer 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 15th day of December, 2004, at 9:30 a.m. in
Courtroom Number 3 of the Court of Common Pleas of Cumberland County, Cumberland
County Courthouse, Carlisle, Pennsylvania.
4. The refusal was reported to the Department of Transportation by Trooper Gregory A.
Styers of the Pennsylvania State Police. See Exhibit 2.
5. Trooper Styers is a necessary witness for the Department of Transportation in this
matter.
6. The undersigned was informed by Sergeant Junkin of the Pennsylvania State Police of
the Carlisle Barracks that Trooper Styers is unavailable due to deployment with the military and
is expected to be deployed oversees for approximately one year.
7. The undersigned counsel respectfully requests a continuance and that the case be
continued generally and rescheduled at the call of either party.
8. The motorist's operating privilege has been restored pending appeal pursuant to
Section 1550 of the Vehicle Code.
9. The undersigned counsel contacted Karl E. Rominger, Esquire, attorney for the
petitioner, and Mr. Rominger indicated he has no objection to the granting of a continuance in
this matter.
WHEREFORE, the Department respectfully requests that its Motion For Continuance be
granted and that the aforesaid hearing be continued.
Respectfully submitted,
t j~
~~abusk
Assistant Counsel
Office of Chief Counsel
Riverfront Office Center
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Date: November 19,2004
AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAN D COUNTY,
PENNSYLVANIA
v.
NO. 04-4907
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
VERIFICATION
I verify that the statements made in the Motion to Continue are true and correct. I
understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904,
relating to unsworn falsification to authorities.
~ , !~eL-t~
~abusk
Assistant Counsel
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, P A 17104-2516
(717) 787-2830
DATE: November 19, 2004
. ,
AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAN D COUNTY,
PENNSYLVANIA
v.
NO. 04-49.07
COMMONWEALTH OF PENNSYLVANIA,
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 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:
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, P A 17013
0.~[~c
~~abusk
Assistant Counsel
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: November 19, 2004
AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAN D COUNTY,
PENNSYLVANIA
v.
NO. 04-4907
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
MOTION TO SCHEDULE MATTER FOR HEARING
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (Department), by and through its attorney, George H. Kabusk, Esquire, respectfully
represents as follows:
1. The Department mailed to Austin James Sourbeer a notice dated September 10, 2004,
informing him that as a result of his violation of Section 1547 of the Vehicle Code, relating to
Chemical Test Refusal, on July 5, 2004, his driving privilege was being suspended for a period of
one year.
2. Mr. Sourbeer filed an appeal of the above-mentioned suspension in the Court of
Common Pleas of Cumberland County.
3. A hearing in the matter was scheduled for 15th day of December, 2004, at 9:30 a.m. in
Courtroom Number 3 of the Court of Common Pleas of Cumberland County, Cumberland
County Courthouse, Carlisle, Pennsylvania.
4. The refusal was reported to the Department of Transportation by Trooper Gregory A.
Styers ofthe Pennsylvania State Police.
5. The matter was continued generally because Trooper Styers was unavailable due to
military deployment.
6. Trooper Styers is no longer on military deployment and is available to testify.
7. The motorist's operating privilege has been restored pending appeal pursuant to
Section 1550 of the Vehicle Code.
8. The undersigned counsel contacted Karl E. Rominger, Esquire, attorney for the
petitioner, and Mr. Rominger indicated he has no objection to scheduling this matter for hearing.
WHEREFORE, the Department respectfully requests that its Motion to Schedule be
granted and that the aforesaid matter be scheduled for hearing.
Respectfully submitted,
'J
i~~k'::tJ C
George H. Ka sk
Assistant Counsel
Office of Chief Counsel
Riverfront Office Center
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
Date: April 21, 2006
.
AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAN D COUNTY,
PENNSYLVANIA
v.
NO. 04-4907
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
VERIFICATION
I verify that the statements made in the Motion to Schedule are true and correct. I
understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904,
relating to unsworn falsification to authorities.
Jl:.~~c
Assistant Counsel
Department of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: April 21, 2006
.
AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAN D COUNTY,
PENNSYLVANIA
v.
NO. 04-4907
COMMONWEALTH OF PENNSYLVANIA,
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 Motion for Schedule 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:
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, P A 17013
9~. . ~I("
George H. ~usk
Assistant Counsel
Department of Transportation
Riverfront Office Center
11 01 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
DATE: Apri121, 2006
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RECEIVED ~
APR2 4 2006
AUSTIN JAMES SOURBEER,
PETITIONER
IN THE COURT OF COMM .
OF CUMBERLAN D COUN
PENNSYLVANIA
v.
NO. 04-4907
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
ORDER
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AND NOW, this I day of -.. \:t; , 2006, upon
consideration of the Department's Motion to Schedule, e Motion IS hereby granted and It IS
hereby Ordered that this matter be scheduled for hearing on the IOu.. day of ~
2006, at \"11:> -\l.m., in Courtroom Number ~ in the Cumberland County Courthouse,
Carlisle, Pennsylvania.
BY THE COURT,
J.
D)STRIBUTION:
v6eorge H. Kabusk, Esquire, PennDOT, Riverfront Office Center-3rd Floor, 1101 South Front
Street, Harrisburg, PA 17104-2516
~arl E. Rominger, Esquire, 155 South Hanover Street, Carlisle, PA 17013
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AUSTIN JAMES SOURBEER,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,:
BUREAU OF DRIVER LICENSING,
Respondent NO. 04-4907 CIVIL TERM
ORDER OF COURT
AND NOW, this 10th day of July, 2006, following a
hearing on the merits, the appeal from suspension of operating
privilege of Austin James Sourbeer, IS DISM
./
/
George H. Kabusk, Esquire
For the Department of Transportation
Karl E. Rominger, Esquire
For Petitioner
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