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HomeMy WebLinkAbout12-2170 NAUMAN, SMITH, SHISSLER & HALL, LLP Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18`h Floor P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 e-mail: jbonnLcm.ssh.com ill afP -9 AM 6: (.12 PENN S YLVAj,j;, Counsel forAzile R. McElwain, Petitioner IN THE COURT OF COMMON PLEAS AZILE R. McELWAIN CUMBERLAND COUNTY, PENNSYLVANIA Petitioner CIVIL DIVISION - STATUTORY APPEAL V. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent PETITION FOR APPEAL OF DRIVER'S LICENSE SUSPENSION NOW comes Azile R. McElwain, Petitioner, by and through her attorneys, Nauman, Smith, Shissler & Hall, LLP, and files this Petition for Appeal of Driver's License Suspension pursuant to 75 Pa.C.S.A. §1550 and avers in support thereof: 1. On February 29, 2012, Petitioner was arrested for Driving Under the Influence (Gen Imp/Inc of Driving Safely - 1S` Off), 75 Pa.C.S.A. §3082(A)(1), and related summary traffic offenses, for events allegedly occurring on February 10, 2012, in West Pennsboro Township, Cumberland County, Pennsylvania. 2. On March 9, 2012, the Pennsylvania Department of Transportation, Bureau of Driver Licensing ("Department") mailed an Official Notice of Suspension to Petitioner notifying Petitioner that her driving privilege is suspended for a period of 1 year effective April 13, 2012 at (03`1S1d 117!? 27-3'? r7 12:01 a.m for a violation of Section 1547 of the Vehicle Code which allegedly occurred on February 10, 2011. A true and correct copy of the Official Notice of Suspension is attached hereto as Exhibit "A". 3. This Court has jurisdiction pursuant to 42 Pa.C.S.A. §933 because the Petitioner's arrest for the alleged violation of Section 3802 of the Vehicle Code occurred in Cumberland County, Pennsylvania. 4. The Department's suspension of Petitioner's driving privilege is unlawful. 5. If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. 75 Pa.C.S.A. §1547(b)(1). 7. The state trooper who placed Petitioner under arrest for a violation of section 3802 failed to discharge his statutory duty mandated by 75 Pa.C.S.A. §I547(b)(2) to warn Petitioner of the consequences of refusing chemical testing. 8. Defendant did not refuse to submit to chemical testing after she was placed under arrest for a violation of section 3802. 2 WHEREFORE, Petitioner Azile R. McElwain requests that this Court GRANT her appeal and DISMISS the Official Notice of Suspension. NAUMAN, SMITH, SHISSLER & HALL, LLP By: Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18t" Floor P. O. Box 840 Harrisburg, PA 17108-0840 Counsel for Azile R. McElwain, Petitioner Date: April 9, 2012 3 Dear MS. MCELWAI? This is an Official 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 0211012010: ¦ Your driving Privilege is SUSPENDED for a period of 1 YEAR(S) effective 04/13/2012 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current `Pennsylvania-driver's licenses, leap^ner's permits, temporary` driver's licenses (camera cards) in your possession on or before 04113!2012. You may surrender these items before, 0411312012, 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 k of $13.50. You must present two (2) forms of proper -iden°-; tification (e.g., birth certificate, valid U.S. passport, marriage certificate,- eta.) _i r? ordar.. to. obta-in-°y,&ur photo . identification card. You will not receive credit toward serving any suspension until we receive your `license(s) Complete the 'following steps to acknowledge this suspension.' 1. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to'PennDOT. If you do not have any of these items, send a sworn nota- rized letter stating You are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's licensed Remember: You may not retain your driver's license for identification purposes. Please 'send' these items to: j Pennsylvania Department of Transportation EXHIBIT a a s, 120626276761520 Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise,' you will not be given credit toward, serving this_ us.pen$i_on. P.enn.110-1--ahane._..nuiabers 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. APPEAL You have the 'right to appeal this 'action to the Court of Common Pleas '(Civil Division) within ' 30 days of the 'mail date, MARCH 09, 2012, of this letter. It you file an appeal in the 'County Court, the Court ijill 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. nail 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 h • must return all current Pennsylvania driver license products to PennDOT by 04/1.312012. Sincerely, Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:`00`a.m. to 5:00 p.m. IN STATE 1-800-932-46.00 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 r.. t 11 U"i 1 ) 3 %4RS' Y CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Karen L. Farhat, an employee of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Petition for Appeal of Driver's License Suspension" and proposed "Order" by depositing a copy of the same in the United States Mail, certified mail, return receipt requested, at Harrisburg, Pennsylvania, addressed to the following: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 4aal?? j 2?21? Karen L. Farhat Date: April 9, 2012 4 AZILE R. McELWAIN Petitioner : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STATUTORY APPEAL - NO. ?? - `7f? V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING Respondent ORDER `q ?- AND NOW, this A? day of , 2012, upon consideration of the Petition for Appeal of Driver's License Suspension, the Court hereby schedules a de novo hearing for o I? 716 BY THE COURT: Distribution List: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 v.. Joshua D. Bonn, Esquire Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, 18`h Floor P. O. Box 840 Harrisburg, PA 17108-0840 N .-0 N -V F!LED-0 FI% -. ZOIZ APR 20 AM 11:34 CUMBERLAND COUNTY PENNSYLVANIA NAUMAN, SMITH, SHISSLER & HALL, LLP Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18`" Floor P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 26 Facsimile: (717) 234-1925 e-mail: abonn,'a%nssh.com Counsel forAzile R. McElwain, Petitioner IN THE COURT OF COMMON PLEAS AZILE R. MCELWAIN CUMBERLAND COUNTY, PENNSYLVANIA Petitioner CIVIL DIVISION - STATUTORY APPEAL V. NO. 12-2170 Civil Term PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent : PROOF OF SERVICE I, JOSHUA D. BONN, ESQUIRE, attorney with the firm of Nauman, Smith, Shissler & Hall, LLP, served a copy of the Petition for Appeal of Driver's License Suspension and proposed Order by certified mail, return receipt requested on April 9, 2012 to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Said Petition and Order are attached as Exhibit "A", together with a copy of the Return Receipt of the U.S. Postal Service dated April 12, 2012 attached as Exhibit "B". NAUMAN, SMITH, SHISSLER & HALL, LLP By: l' o' oshua b. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18" Floor P. O. Box 840 Harrisburg, PA 17108-0840 Counsel for Azile R. McElwain, Petitioner Date: April 19, 2012 2 CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Karen L. Farhat, an employee of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Proof of Service" by depositing a copy of the same in the United States mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 By: 1?4 A - qp? Karen L. Farhat Date: April 19, 2012 NAUMAN, SMITH, SHISSLER & HALL, LLP Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18`" Floor P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 e-mail: jbonnLanssh.com Ti? CUHS-Ei ,"O'n l ' r FEN,Ns VA A Counsel forAzile R. McElwain, Petitioner IN THE COURT OF COMMON PLEAS AZILE R. McELWAIN CUMBERLAND COUNTY, PENNSYLVANIA Petitioner CIVIL DIVISION - STATUTORY APPEAL V. ClUI Llvy? No.. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent PETITION FOR APPEAL OF DRIVER'S LICENSE SUSPENSION NOW comes Azile R. McElwain, Petitioner, by and through her attorneys, Nauman, Smith, Shissler & Hall, LLP, and files this Petition for Appeal of Driver's License Suspension pursuant to 75 Pa.C.S.A. § 1550 and avers in support thereof: 1. On February 29, 2012, Petitioner was arrested for Driving Under the Influence (Gen Imp/Inc of Driving Safely - I't Off), 75 Pa.C.S.A. §3082(A)(1), and related summary traffic offenses, for events allegedly occurring on February 10, 2012, in West Pennsboro Township, Cumberland County, Pennsylvania. 2. On March 9, 2012, the Pennsylvania Department of Transportation, Bureau of Driver Licensing ("Department") mailed an Official Notice of Suspension to Petitioner notifying Petitioner that her driving privilege is suspended for a period of 1 year effective April 13, 2012 at 1 EXHIBIT 12:01 a.m for a violation of Section 1547 of the Vehicle Code which allegedly occurred on February 10, 2011. A true and correct copy of the Official Notice of Suspension is attached hereto as Exhibit "A". 3. This Court has jurisdiction pursuant to 42 Pa.C.S.A. §933 because the Petitioner's arrest for the alleged violation of Section 3802 of the Vehicle Code occurred in Cumberland County, Pennsylvania. 4. The Department's suspension of Petitioner's driving privilege is unlawful. 5. If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. 75 Pa.C.S.A. §I547(b)(1). 7. The state trooper who placed Petitioner under arrest for a violation of section 3802 failed to discharge his statutory duty mandated by 75 Pa.C.S.A. §1547(b)(2) to warn Petitioner of the consequences of refusing chemical testing. Defendant did not refuse to submit to chemical testing after she was placed under arrest for a violation of section 3802. 2 WHEREFORE, Petitioner Azile R. McElwain requests that this Court GRANT her appeal and DISMISS the Official Notice of Suspension. NAUMAN, SMITH, SHISSLER & HALL, LLP By: Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17108-0840 Counsel for Azile R. McElwain, Petitioner Date: April 9, 2012 3 r NIA COMMONWEALTH OF N t DEPARTMENT ',OF TRANSPORTATION Eureau `af ":Driver ,Cicensictg t? Karl ©ate MARCH. O4, 29.12 `? F? ? `.x ? f ?? ;:'J h??,41f '?y '?tt] 'iht L1:'? ??f i •?t? M1,:? ;fw 'AZILE ft CICEtWAIK r'S -w ID #l' laaI cal; 6Ii5?E ;E?fll? t r z Zq ?fIDLaND ),ft W, FF???ESdi .UF-4VILEE a! Y _ M S ear ?ftl?. Ilk s r r uInC? r: riof °?yfz r? c ,c EXHIBIT D 9 fi 3 12062627676152 Bureau of Driver Eicensi'ng P Q ?Box 68643 k 4i risburg. PA.`1Z1Q6 8693 Z. Upon recerpt Fevre' and. accepta Cle a£ ; r?ur.FenasyIKa ira driver s Iicerrsets}; Yearrrer ;s pe ?sY andfar'a swarn f y` natarized'Iett`ers Pe?nnDGT gill ietxd "uau? a 'receipt can i ? .. -? fi r: . }? Jt ?lr F :. T i +, , ? "'. W+? <¢ ? t? .a 4 F?4'? ?.,? r' r fiirmiilg the ?da,te tkiat? edit l??egan ,I ` au o hats ems. M w .. aln "':Y+s z ?mod i, .? 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L lvaie the ftrigFtt t,,,cr appeal this 'ac FOFk` + a ?ttle Caurt r se`s ?:, ,. ,? n .a ru , +'• p. w Qntn?on? , Yeas _ti Cxw I ?Biv?s?Qrt ?withirt, ;3( 'days ry?a f W, rea?a? ?r' ? ? ?^ , Ckf Q h ?Z 2n of this letter :T If .pouf file ar appfatii° tfAf eal ; in the Cali tEmue?t4„the Gaupt will give you w? dime -stamped cee'ti'E`ied Opry° t` ra ke SeRPea , gzj,in arcfec r a r aprPea`k to r x. , ?e vatrd°r?_ e thus 3tirae stampred ?c?er edcoav,,of s t r r a r+ j' r: the ?PPea Qd IR?? eta s r' - 46 Y artmen.t `6f rT 111, p R4r at art' r Oi2l a 5. 3t L ?. p w r e f n,t Fkf f i ?e e61 v, F7? ? S S a G1 O fi rr: ?l ; t ? 3 r r?ZSt?F xi ? .^ 7x -, 4 MY yam.-. S t y '?T ? r.'; ? ? ? 3 - _ ? ^ 3 ?. t q - 1 3- ?7??41y¢ yv5? fog ?. d e, Remenr er tEt,iKs ?YS r arz OFFICIAL aNOTIC FiF,fSt1PE?Q 1Coe??S;tk ,? u h, aSo-'1?.°i'k`aG i39y?„ ?4? ? t ?.. ! :- S-.,: ?} R .t'h q? r.¢?'?T?i???: R ?. ?' 4? fr- ?? f _ t us ,lret ? n all Culp PertrisYlvanYa??ri?rer ??c-else Prr???cts to 'P enrrBQT by, Q43r22 r >?.r'.?t'? t 1 x w v 9 ?y ??^ Ytr i Y '" 2 ti c 3 ??3? sir a a_ir J +'C t?.3, F4 9 J? `.T??aaCe'> lr'- eye 4 J tf _? ? J Y - o- ?, a T?Rte ' Q 3Et Y'rector -` r z s': z' zxl r ?, e MA i d%, FNF 6 RMATIGM I[? STAJE 1 , T`,?? y ' T 8 Q ?St 2 ?" R, ?$ k? xy2? OR6 b f U`T 'GF STATE , j 174 2' Q - 2 -S 2 . &tk s t - WEB ;SITE $aDDRESS ?wwc? 'dnrM ew, s : ' 'Ji ` i xr µ ? 3 y +x , v, N. CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, Karen L. Farhat, an employee of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Petition for Appeal of Driver's License Suspension" and proposed "Order" by depositing a copy of the same in the United States Mail, certified mail, return receipt requested, at Harrisburg, Pennsylvania, addressed to the following: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Karen L. Farhat Date: April 9, 2012 4 IN THE COURT OF COMMON PLEAS AZILE R. McELWAIN CUMBERLAND COUNTY, PENNSYLVANIA Petitioner STATUTORY APPEAL - V. NO. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this day of 2012, upon consideration of the Petition for Appeal of Driver's License Suspension, the Court hereby schedules a de novo hearing for BY THE COURT: J. Distribution List: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Joshua D. Bonn, Esquire Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, 18`h Floor P. O. Box 840 Harrisburg, PA 17108-0840 ¦ Complete items 1, 2. and 3. Also complete Item 4 N Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the maiipiece, or on the front if space permits. 1. Article Addressed to::t?. Transpc(-FoL41 Gig Wrce C-hizf CCU ns¢- I -rd•.Fl o0r' ?lv2r".?rcn-1(?+?2 ???i A. Signature x &19 ? Addressee B. Received by (PM W Name) C. Date of Delivery [APR 12 20.U D. Is dsMery address ditent from item 1? ? Yes H YES, enter dei" address bebw: ? No T.}{'11 ' PA rl I O?) - 02? (D 3. d ffed Meii ? Wress Meii r ? Registered n Receipt for Merchandise ? kmmw Mall ? C.O.D. 4. Restricted De9vsryt Aft Feel ? Yes 2. ArtldeNumber 7011 0470 0002 7992 4267 (Timslier nom s?ervlce ? PS Form 3811, February 2004 Domestic Retum Receipt to2ss:i-02-mt r` .n ru ru 0' 0^ r- C3 CD O (EndowemaitRequired) d d Pe"tUd p (? \ 801 L1. Tote) Posta" & Fees $ q rq ? --lrolrf'ioor? k-, - - . L - a io .< ¦ EXHIBIT t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-2170 CIVIL TERM AZILE R. McELWAIN, . Petitioner v. . COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, Respondent ORDER OF COURT AND NOW, this 15th day of August, 2012, upon considerat$.on of the appellant's appeal from suspension of operator's privileges, and after hearing and argument of counsel, the court makes the following findings of fact: 1. On February 10, 2010, Trooper David C. Long pulled over the defendant's vehicle after observing it being operated i~ an erratic fashion which includes crossing the center line and nearly striking a patrol vehicle. 2. Upon stopping the vehicle, the trooper observed a strong odor of alcoholic beverages, and following standardized field sobriety tests and a preliminary breath test, determined t the operator was under the influence of alcoholic beverages. 3. The defendant was placed under arrest and taken to Carlisle Regional Medical Center for the purpose of obtaining a blood test. 4. While at the Carlisle Regional Medical Center, the defendant was read DL-26 at least once by Trooper Long and was given the opportunity to read it herself and ask questions regarding its contents. 5. The petitioner repeatedly asked to speak to another individual and was informed that she was not entitled to do so. 6. After being repeatedly explained the consequences contents of DL-26, and being offered an opportunity to have the t form described in layman's terms, the petitioner claimed, I do nit t need it to be explained, "I am a scientist." 7. I find the testimony of Trooper Rozman and Trooper Long to be credible regarding the circumstances of the petiti refusal, including the fact that she was given at least 20 to 25 minutes to consider the DL-26 form. 8. I find the petitioner was not confused with the na of the DL-26 form, and her refusal to sign or consent to the bl test when asked was not a momentary equivocation. ~' s 9. There was no affirmative assent from the petitioner ~o the blood test. 10. The petitioner refused to submit to chemical testi Accordingly, it is hereby ordered and directed that the petitioner's appeal of her license suspension is denied and the supersedeas formerly granted in this case is rescinded. By the Court, f Joshua D. Bonn, Esquire For the Petitioner Albert Masl d, J. ~ Y~ C ~ ` -, u-") Philip M. Bricknell, Esquire `~.:~=' ~" For the Department of Transportation ~,', ~ ~ ~ vae ~pr`~S fLt~tilL°C~ ~' ~0~~ ~ w ~~- .~ ,x , c ;- "~. -v,