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Home My WebLink About04-5653 SCOTT A. VINCETT, Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. NO: 2004 - Sf., 5.3 c;.;J. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent LICENSE SUSPENSION APPEAL TO THE HONORABLE JUDGES OF SAID COURT: ~ AND NOW, this q day of November 2004, comes SCOTT A. VINCETT, by and through his attorney, David E. Hershey, Esquire and Wiley, Lenox, Colgan & Marzzacco, P.C., and respectfully files the following License Suspension Appeal, averring as follows: 1. Petitioner, Scott A. Vincett is an adult licensed driver with a residence address of 523 Biddle Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. The Department of Transportation, Bureau of Driver Licensing has a mailing address of 1101 South Front Street, Harrisburg, PA 17104. 3. Petitioner received a notice of a proposed eighteen-month license suspension with a mail date of October 12, 2004 for an alleged refusal of chemical testing pursuant to Section 1547 of the Vehicle Code. See Exhibit "A" attached hereto and incorporated herein by reference. 4. The suspension proposed by the Department is illegal, improper, and invalid for some or all of the following reasons: a. Petitioner never refused a chemical test. b. Petitioner was not capable of making a knowing and conscious refusal to take the test because he was not advised of the specific criminal consequences for failing to submit to chemical testing under ~1547 (b) (2) (ii) of the vehicle code. c. Petitioner was denied the right to consult with counsel after requesting the opportunity to do so, which prevented Petitioner from making any knowing and conscious decision. d. The arresting officer failed to advise Petitioner of the specific criminal consequences for failing to submit to chemical testing under ~1547 (b) (2) (ii) of the vehicle code. e. Petitioner was denied his right to counsel under Article I ~9 of the Pennsylvania Constitution and the 6th Amendment of the United States Constitution at a time when his substantial rights were affected. f. Any request to submit to a chemical test under the current implied consent law, 75 Pa.C.S. ~1547, is no longer purely civil in nature due to the enhanced criminal penalties as a consequence of refusing a chemical test. g. ~1547 on its face does not prohibit a motorist from consulting with counsel regarding the consequences of refusing a chemical test, and any holding to the contrary renders ~1547 unconstitutional as applied to Petitioner pursuant to Article 1 ~9 of the Pennsylvania Constitution and the 6th amendment of the United States Constitution. h. Denying Petitioner the right to counsel, subsequent to his arrest for driving after imbibing renders any alleged refusal invalid as a matter of law for the above mentioned reasons. i. Said suspension is otherwise in violation of ~1547 of the vehicle code and/or case law. 5. The alleged refusal resulted from an incident in Cumberland County which is the proper venue in this matter. WHEREFORE, Petitioner prays that Your Honorable Court enter an Order staying the proposed suspension until such time as the case can be heard on its merits and further scheduling this matter for a hearing. By: Respectfully ~ DAVI~RSHEY. ESQUIRE THE WILEY GROUP 130 W. Church Street Dillsburg, Pennsylvania 17019 I. D. #: 43092 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 12, 2004 SCOTT ADAM VINCETT 523 BIDDLE DR WID. 042796117449304 001 PROCESSING DATE 10/05/2004 DRIVER LICENSE. 19513636 DATE Of BIRTH 11/03/1961 CARLISLE PA 17013 Dear MR. VINCETT: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547BIII of the Pennsylvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 09/11/2004: · Your driving privilege is SUSPENDED for a period of 18 MONTHCS) effective 11/16/2004 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 11/16/2004. You may surrender these items before, 11/16/2004, 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 iden- tification 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 permi ts 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 EXHIBIT ... (' 10 i I!' 11 E ill A " 042796117449304 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 con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our off i ce . at herwi se, yOU wi 11 not be given cred i t 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 157ICa)(4) of the Pennsylvania Vehicle Code. PAVING THE RESTORATION FEE Vou 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, OCTOBER 12, 2004, of this letter. If you file an ap- peal in the county cou~t, the Cou~t will give you a time- stamped ce~tified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied 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 NOTICE OF SUSPENSION. Vou must return all current Pennsylvania driver license products to PennDOT by 11/16/2004. 042796117449304 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 CERTIFICATE OF SERVICE q.~ On the _ day of November 2004, I certify that a copy of the foregoing petition was served upon the following attorney for the Department of Transportation by First- class Mail, as follows: Beverly Points, Esquire Pennsylvania Department of Transportation Office of Chief Counsel 1101 South Front Street Harrisburg, PA 17104 Respectfully submitted, WILEY, LENOX, COLGAN & MARZZACCO, P.C. /~ by: David E. Hershey, Esq. 130 W. Church Street Dillsburg, PA 17019 (717) 432-9666 10 No.: 43092 VERI FICA TION I, SCOTT A. VINCETT, verify that the statements made in this document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Respectfully submitted, / /~ SCOTT A. VINCETT ~ o ~. ..,. n' ~ ~ -c, ~ ~ ~ ~ -;,'1. ~ f' ," , >-" r ,'; i " )> n .'~" G> r--.:> ;=~; .)',- (') ." :?" Inp'" ~;Jc3 !,;3(,~~ :" '1"1 ", ~ C) :t",.~ (n '::;1 ~ ~~~ '""4'': I V) -\, ~.. ...',,,., (,.) c.) 0) '- () vs. :IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA NO: . 2004 -.:> (053 Ql"d LICENSE SUSPENSION APPEAL SCOTT A. VINCETT, Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent ORDER AND NOW, this \2-\-l day of November 2004, upon consideration of the attached Appeal and the reasons supporting same, IT IS HEREBY ORDERED AND DECREED that a hearing on t~ merits of this case is hereby scheduled for the .1M.- day of ~ ' 2001, at /;. 3 0 f .m. in Courtroom No. ---1- of the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania. Pursuant to Section 1550 of the Motor Vehicle Code, the Department of Transportation is hereby Ordered to stay the proposed eighteen-month suspension until such time as this case can be decided on its merits. BY THE COURT: " ,\\,\\.11 ~ >;~/ II jJS/btf ~ l)/L-, g;4 (; ,JUDGE \i' .'11'. II' I\..> 8:1 -7 ..-,~ Ud c }J~f'1,,~(),\ .:C;:-L~(='cj :Jil :i:)~~!: ;(}-"(}311:J .:{"i;] ~ ,-\' i f-,'-'(\7 Il;,.)~~ Jt.f"J..., Jj~ ""~' SCOTT A. VINCETT, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent IN THE COJRT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5653 CIVIL LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this 3rd day of February, 2005, upon consideration of Petitioner's License Suspension Appeal in the above-captioned matter, and pursuant to an agreement reached in open court between the Petitioner through his counsel, David E. Hershey, Esquire, and the Commonwealth through its counsel, George H. Kabusk, Esquire, the hearing in this matt,er is continued generally pending a decision by the Pennsylvania Commonwealth Court in Garner v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, at No. 04-1815 Civil Term (Cumberland County), which would appear to be controlling in this case if the Commonwealth Court affirms the decision by the Honorable Kevin A. Hess of this Court. Counsel are requested to notify the Court at such time as the Commonwealth Court has issued a decision in Garner. /~id E. Hershey, Esquire 130 West Church Street Ste. 100 Dillsburg, PA 17019 For the Petitioner ~orge H. Kabusk, Esquire Office of Chief Counsel 1101 South Front Street 3rd Floor Harrisburg, PA 17104-2516 For the Respondent Pcb By the Court, ,~ , ? ~o :1 ",' !'1 ~', : , <,,'I SCOTT A. VINCETT, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRlVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5653 CIVIL TERM ORDER OF COURT AND NOW, this 20th day of June, 2005, upon consideration of the attached letter from David E. Hershey, Esq., attorney for Petitioner, a hearing is scheduled for Wednesday, October 5, 2005, at 9:30 a.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. ,;David E. Hershey, Esq. The Wiley Group 130 W. Church Street Suite 100 Dillsburg, PA 17019 Attorney for Petitioner Jd€orge H. Kabusk, Esq. Pennsylvania Department of Transportation Office of Chief Counsel 1101 South Front Street Riverfront Office Center Harrisburg, PA 17104-2516 Attorney for Respondent :rc BY THE COURT, I ~ sley ~~., J. /- 61 :" IV I 0"0 I 2 IIn! ~OUZ )ij'\./' I' '"c.,'<..\\(',\I,J, :1\-\1' .J("l ^', ifl.-"C,'v".,....".(J..,J....J ;.Iv .J~H~o--Q:nl:1 Jan M, Wiley David J. Lenox Timothy j. Colgan Christopher J. Marzzacco David E. Hershey Bradley A. Winnick Thomas M. Clark Ari D. Weitzman THE WILEY GROUP Attorneys at Law- Wiley, Lenox, Colgan & Marzzacco, P.c. June 9, 2005 Honorable J. Wesley Oler, Jr. Court of Common Pleas Judge Cumberland County Courthouse One Courthouse Squcllt:: Carlisle, PA 17013 In re: Scott A. Vincett v. Commonwealth DeDar1:ment of TransDortation. Bureau of Driver Licensina No. 2004-5653 CIVIL License Suspension Appeal Dear Judge Oler: In accordance with your order of February 3, 2006, please be advised that the Commonwealth Court in Garner v. Commonwealth Deoartment of Transoortation. Bureau of Driver Licensina, at No. 04-1815 Civil Term (Cumber"and County), reversed Judge Hess's order sustaining Mr. Garner's appeal. After consultation with my client, there are factual discrepancies regarding the events at the booking center preceding the Department's notice of suspension. Accordingly, my client is seeking a hearing on the merits of his appeal. He scheduled to self-report to the Cumberland County Prison to commence a ninety (90) day jail term on the companion criminal case June 11, 2005. If it is convenient with the Court's calender and with the Department's calendar, we would respectfully request this matter be scheduled for a hearing after the completion of Mr. \/ilicetl's ninety (90) day jail term. I have not discussed !:;c!1~~d.)Hng !s~ues. 'A'ith Mr. Kabusk by carbon copy of this letter, I am advising him of its contents. Sincerel~ /~- David E. Hershey, Esquire JUN 1 3 2005 DEH/jfs cc: George H. Kabusk, Esquire, Office of Chief CounsEll, 1101 South Front Street Harrisburg, PA 17104 Scott A. Vincett, clo Cumberland County Prison, 1101 Claremont Road Carlisle, PA 17013 130 W. Church Street, Suite 100 . Dillsburg, PA 17019 . Phone: (717) 432-9666 . (800) 682-4250 . Fax: (717) 432-0426 Offices in Harrisburg. York. Carbondale www.wileygrouplaw.com SCOTT A. VINCETT, Petitioner v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-5653 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL BEFORE OLER, J. ORDER OF COURT AND NOW, this 5th day of October, 2005, upon consideration of Petitioner's License Suspension Appeal, and following a hearing held on October 5, 2005, at which the issue for determination by the Court was focused by Petitioner's counsel, and evidence received on that issue, the petition/appeal is denied and the suspension of Petitioner's driver privilege noticed by a mailing by Respondent dated October 12, 2004, is affirmed. ~vid E. Hershey, Esquire 130 W. Church Street Ste. 100 Dillsburg, PA 17019 For Petitioner ~orge H. Kabusk, Esquire Office of Chief Counsel 1101 South Front Street 3rd Floor Harrisburg, PA 17104-2516 For Respondent pcb By the Court, r: '.' t (1 <-i 'J l. J I' ,1