HomeMy WebLinkAbout04-5873DAVID DOMITROVICH, Appellant
V.
: NO.:
COMMONWEALTH OF PENNSYLVANIA:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING,: APPEAL
Appellee :
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
APPEAI, IIROM ~qlLqPEN,qlON O!* OPERATOW~ PRIVII,EGE
AND NOW comes the Appellant, Scott A. Sanders, by and through his attorneys, the Law
Offices of Patrick F. Lauer, Jr., Esquire, respectfially avers the following:
1. Appellant resides at 6415 Taunton Road, Harrisburg PA 17111.
2. The Appellant received an official Notice of Suspension dated November 2~a, 2004, that as a
result of his violation of Vehicle Code Section 3802(b), DUI BAC .10-<.16 on 04/30/2004, his
driving privilege were being suspended for a period of one year, effective suspension date
October 12th, 2004 at 12:01 AM. A true and correct copy of the Notice is attached as Exhibit
"AII.
3. The Defendant has akeady surrendered his license pursuant to pleading guilty in the Court of
Common Pleas of Cumberland County to the 3802B DUI charge.
The Appellant submits that the license
suspension imposed is improper.
3. The Appellant was arrested on April 309, 2004 for DUI. After his arrest he was taken to the
Police Station Processing Center for BAC testing, by blood sample.
At the Center he was read Form DL-26 which purported to inform him of his fights and the
possible consequences of refusing the BAC test. In reality, the DL-26 is written so inaccurately
10.
11.
12.
13.
14.
that it did no such thing.
The Appellant was specitieally told that he did not have the right to consult with an attorney
prior to acquiescing to the Commonwealth's request for blood.
Denied the oppommity to discuss the BAC test with an attorney, the Appellant obeyed to the
request.
The BAC test results were a signitieant factor in the Appellant's decision to plead guilty to the
criminal charges he faced.
Were it not for the misleading DL-26 Form, and being deprived of an oppommity to discuss the
test with an attorney, the Appellant may not have been convicted of the DUI charge, and would
not face a license suspension at this time.
Therefore, the Appellant submits that the license suspension of one year and one-year
requirement of ignition interlock are improper.
The Cumberland County DUI should be counted as
a first offense for License Suspension purposes.
The Appellant was previously arrested for a 75 PS 3731 DUI occurring on June 1~ 2004.
The Appellant entered into ARD for this charge, but was subsequently removed from that
program upon the commission of the Cumberland County DUI.
The Appellant is currently fighting the Chester County DUI charges and expects to prevail at
trial.
The Appellant submits that the Cumberland County conviction should be counted as a first
offense for license suspension purposes, and as such, he should only be subject to a one-year
suspension, without interlock, and with the possibility of an Ol J. after 60 days.
Ignition Interlock requirement is improper.
Under 75 PS 3805(g,), the Department of Transportation may not impose an ignition interlock
requirement on a person th. at has committed an offense under former section 3731, prior to
October 1~t, 2003 without the issuance of a court order.
15. The Appellant has previously entered into ARD on a Chester County DUI charge that occurred
in June of 2003 and was prosecuted under 75 PS 3731 (the repealed DUI law).
16. This is the Appellant's only prior conviction.
17. There has been no court order issued requiting the Appellant to install ignition interlock on his
automobiles.
18, Therefore, the Appellant submits that the Ignition Interlock requirement of his suspension is
improper.
Application of Unconstitutional Statute
19. The Department of Transportation is empowered by 3804(e) and related statutes to impose
penalties pursuant to violations of 3802.
20. The Appellant submits that the entirety of Chapter 38 of the vehicle code is unconstitutional.
21. These provisions are unconstitutional because they violate substantive due process by being
vague and overbroad.
a. Chapter 38 of the vehicle code does not define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited.
b. The statute encourages arbitrary and discriminatory enforcement.
c. The Statute fails to give a person of ordinary intelligence notice that his/her contemplated
conduct is forbidden.
d. The statute's reach punishes constitutionally protected activity as well as illegal activity.
e. The language of the statute encompasses a variety of protected lawful conduct.
f. The statute unnecessarily sweeps broadly into activity that has not been declared unlawful
in this Commonwealth.
22. These provisions are unconstitutional because they are not rationally related to the state's interest
in curbing DUI offenders.
23. These provisions are unconstitutional because the legislature has removed from the jury the
assessment of facts, other than the fact of a prior conviction, that increase the prescribed range of
penalties to which the defendant is exposed, and does not require that such facts be established
by proof beyond a reasonable doubt.
24. These provisions are unconstitutional because the statute fails to provide a rebuttable
presumption that the aecused's BAC at the time of testing accurately reflects their BAC at the
time of driving.
25. These provisions are unconstitutional because they fail to provide for an affirmative defense
requiring the state to prove that the accused's BAC was at least .08% at the time of driving.
26. These provisions are unconstitutional because they arbitrarily and capriciously create a BAC
classification scheme that has no relation to the relative inability of a person to function at each
level.
27, These provisions are unconstitutional because they encompass both lawful and unlawful conduct.
28. These provisions are unconstitutional because they fail to provide a reasonable standard by
which a person may gauge their conduct.
29. These provisions are unconstitutional because they encourage arbitrary and discriminatory
enforcement.
30. The Commonwealth violated the Defendant's United States and Pennsylvania Constitutional
Rights by charging him with such an unconstitutional statute.
31. The Department of Transportation further violated the Defendant's United States and
Pennsylvania Constitutional Rights by enforcing the provisions of such an unconstitutional
statute.
32. Therefore, the Appellant submits that the Department's power to suspend his liceme should not
be enabled by its reliance on an unconstitutional statute, and the suspension should be rescinded.
WHEREFORE, the Appellant respectfully requests this Honorable Court to schedule a
hearing on the matter.
Date:
Respectfully submitted,
2~dsCk F. Lauer, Jr., E'~u~re
Market Street, Aztec Building
Camp ITffi, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
DAVID DOMITROVICH,
Appellant
Vo
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.:
LICENSE SUSPENSION
APPEAL
ATTORNEV VERII~CATIC~N
The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that:
1. He is the attorney for the Appellant, David Domitrovieh;
2. He is authorized to make this verification on his behal~
3. The facts set forth in the foregoing Appeal are known to him and not necessarily to his client;
4. The facts set forth in the foregoing Appeal are true and correct to the best of his knowledge,
information and belief, and
5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904,
relating to unswom falsification to authorities.
Date:
Respectfully submitted,
F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Iqfll, Pennsylvania 170114706
IDg 46430 Tel. (717) 763-1800
DAVID DOMITROVICH,
Appellant
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO.:
· LICENSE SUSPENSION
· APPEAL
Cli',RTII~C.A TF, 01;'
I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and
in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure, by depositing a copy of the same in the United States Camp Hill Pennsylv~K
through first class certified mail, prepaid and addressed as follows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfrom Office Center
Harrisburg, PA 17104
Date:
Respectf~y submitted,
a~~ck F. Lauer, Jr., Esquire~-~
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 170114706
ID# 46430 Tel. (717) 763-1800
CONMONNEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: NOVEMBER 02, 2004
WID # 043006117466164 001
PROCESSING DATE 10/26/2OO4
DRIVER LICENSE e 2S4499&9
DATE OF BIRTH 11/18/1980
LICENSE IN BUREAU
This is an O~ficla! Notice of the Susaens~on of your Driving
Privilege as authorized by Section 3804E2I of the
Pennsylvania Vehicle Code. As a result of your 10/12/200q
conviction of violating Section 3802B of the Vehicle Code
DUI BAC .10-<.16 on
Your driving privilege is SUSPENDED for a period of
YEAR(S) effective 10/12/2004 at 12:01 a.m.
Before PennDOT can restore your driving privilege, you must
follow the instructions in this letter for COMPLYING NITH
THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING
PROOF OF INSURANCE. You should follow ALL lnstructton~ very
carefully. Even if you have served all the tlme on the
suspension/revocation, we canno~ restore your drlvlng priv-
Ilege untll all the requirements are satisfied.
PRISON RELEASE REGUIREMENT
The Court of CUMBERLAND CTY, Court Number 1667, Court Term
2004 has sentenced you to serve a prison term for this vi-
olation. Pursuant to Section 1541(a.1) of the Vehicle Code,
you ~ill not receive credit for this suspension/revocation
or any additional suspension/revocation until you complete
your prison term. The Court must certify your completion
to PennDOT. You may ~ish to contact your probation officer
and/or the Court after your release to make sure that
PennDOT is properly notified.
PAYING THE R~STORATION 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:
0~3006ZZ7~6616~
[. Return the enclosed Application for Restoration. The
amount due is listed on the application.
2. Write your driver's license number (listed on the f~rst
page) on the check or money order to ensure proper
credit.
$. Follow the payment and mailing instructions on the back
of the application.
IGNITION INTERLOCK
BefoFe your driving privilege can be*'~estored ~U' are re-
quired by law to have all vehicle(s) owned by you to be
equipped with an Ignition Interlock System. This is a result
of your convictipn for Driving Under the Influence, You will
receive more information regarding this requ/rement approx-
imately 50 days before your eligibility date,
PROVIDING PROOF OF INSURANCE
N/thin the last $0 days of your suspension/revocation, we
will send you a letter asking that you provide proof of in-
surance at that time. This letter will list acceptable
documents and what will be needed if you do not own a vehicle
registered in Pennsylvania.
ZHPORTANT: Please make sure that PennDOT /s notified if you
move from your current address. You may notify PennDOT of
your address change by calling any of the phone numbers
listed at the end of this letter.
APPEAL
You have ~he right--t0-a~eal this a*~i0n t0 the Court of
Common Pleas (Civil D/vision) within $0 days of the mail
date, NOVEMBER 02, 20OH, of this letter. If you file an
appeal in the County Court, the Court ~111 give you a time-
stamped cert/fted copy of the appeal. In order for your
appeal to be val/d, you must send this t/me-stamped certi-
f/ed copy of the appeal by certified*mail to:
Pennsylvan/a Department of Transportat/on
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 1710H-2516
Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZON.
Sincerelyj
Rebecca L. Bickley, D/rector
Bureau of Dr/var Licensing
IHFORHATION 7:00 a.m. to 9:00 p.m.
-~N--STATE ...........1-608-9~2-q600 TDD--Z~-$TAT~
OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE
WEB SITE ADDRESS www.dmv.state.pa.us
717-391-6191
DO NOT SEND CASH
000-00
PAY THIS AMOUNT
es.ool P,
PtEA..eE INDICATE THE A~OVE
OPERATOR OR TIT_E NUMBER
ON YOUR CHECt( OR MONEY O~D~R
I~ 514 q qq 8q1.0002 500
TAUNTON RD ·
HARRZSBURG PA ~?~
.0
FOR YOUR FII.;S
KATHLYN A. DOMITROVICH lo~
RICHARD d. DOMITROViCH
HARRISBURG. PA 17111.4884
308
01
NOV ~ ~ ~:~fi4 ~'
DAVID DOMITROVICH,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, · LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, : APPEAL
Appellee :
AND NOW, this 30~y of ~~20~, upon co~ideration of ~s ~PE~ ~OM
SUSP~SION OF OPE~TOR'S P~GE, it is hereby Ord~ ~t a H~g on ~e ~er
~ ~y of3~ ~
~ b~ h~ on 20~, ~t ~'~5~ o"~o~k ~. m. ~ Co~oom ~o. ~ of ~
C~berl~d Co~ Co. house, C~sle, P~lv~a.
The Defend~t ~ ~dy ~ ~ ~s fi~ ~ p,~ offs ~nten~g.
Pe~ot ~ ~ately r~ ~ ~pe~'s ~ for the dmafion of~e app~ pro.ss,
~d t~s do~t s~ ~ ~ a ~ay of ~d ~s~ion.
~A 'Dbution:
ept. of Transportation, Office of Chief' Counsel, Room 103, Transportation & Safety Building,
~_~. b. urg, PA 17120
.~l~trick F. Lauer, Jr., Esq., 2108 Market St., Camp I-fill, Pa 17011
DAVID DOMITROVICH,
Appellant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO.:
COMMONWEALTH OF PENNSYLVANIA ·
PENNSYLVANIA DEPARTMENT ·
OF TRANSPORTATION, : LICENSE; SUSPENSION
BUREAU OF DRIVER LICENSING,: APPEAL
Appellee :
APPEAL 'I~C~M ~II~PEN~ION 01~ t"~PERATt~Rt~ PRIVfl,Ef~E
AND NOW comes the Appellant, Scott A~ Sanders, by and through his attorneys, the Law
Offices of Patrick F. Lauer, Jr., Esquire, respectfully avers the following:
1. Appellant resides at 6415 Taunton Road, Harrisburg, PA 17111.
2. The Appellant received an official Notice of Suspension dated November 2~a, 2004, that as a
result of his violation of Vehicle Code Section 3802(b), DUI BAC ·10-<.16 on 04/30/2004, his
driving privilege were being suspended for a period of' one year, effective suspension date
October 12~, 2004 at 12:01 AM. A true and correct copy of the Notice is attached as Exhibit
3. The Defendant has already surrendered his license pursuant to pleading guilty in the Court of
Common Pleas of Cumberland County to the 3802B DUI charge.
The Appellant submits that the license
suspension imposed is improper.
3. The Appellant was arrested on April 30t~, 2004 for DUI. After his arrest he was taken to the
Police Station Processing Center for BAC testing, by blood sample.
4. At the Center he was read Form DL-26 which purported to inform him of his rights and the
possible consequences of refusing the BAC test. In reality, the DL-26 is written so inaccurately
o
10.
11.
12.
13.
14.
that it did no such thing.
The Appellant was specifically told that he did not have the right to consult with an attorney
prior to acquiesdng to the Commonwealth's request fi~r blood.
Denied the oppommity to discuss the BAC test with an attorney, the Appellant obeyed to the
request.
The BAC test results were a significant factor in the Appellant's decision to plead guilty to the
criminal charges he faced.
Were it not for the misleading DL-26 Form, and being deprived of an oppommity to discuss the
test with an attorney, the Appellant may not have been convicted of the DUI charge, and would
not face a license suspension at this time.
Therefore, the Appellant submits that the license suspension of one year and one-year
requirement of ignition interlock are improper.
The Cumberland County DUI should be counted as
a tn'st offense for License Suspension purposes.
The Appellant was previously arrested for a 75 PS 3731 DUI occurring on June 1~t, 2004.
The Appellant entered into ARD for this charge, but was subsequently removed fi.om that
program upon the commission of the Cumberland County DUI.
The Appellant is currently fighting the Chester County DUI charges and expects to prevail at
trial.
The Appellant submits that the Cumberland Cotmty conviction should be counted as a first
offense for license suspension purposes, and as such, he should only be subject to a one-year
suspension, without interlock, and with the possibility of an OLL after 60 days.
Ignition Interlock requirement is improper.
Under 75 PS $805(g), the Department of Transportation may not impose an ignition interlock
requirement on a person that has committed an offeme under former section $751, prior to
October 1~, 2003 without the issuance ora court order.
15. The Appellant has previously entered into ARD on a Chester County DUI charge that occurred
in June of 2003 and was prosecuted under 75 PS 3751 (the repealed DUI law).
16. This is the Appellant's only prior conviction.
17. There has been no court order issued requiring the Appellant to install ignition interlock on his
automobiles.
18. Therefore, the Appellant submits that the Ignition ihaterlock requirement of his suspension is
improper.
Application of Unconstitutional Statute
19. The Department of Transportation is empowered by 3804(e) and related statutes to impose
penalties pursuant to violations of 3802.
20. The Appellant submits that the entirety of Chapter 38 of the vehicle code is unconstitutional.
21. These provisions are unconstitutional because they violate substantive due process by being
vague and overbroad.
a. Chapter 38 of the vehicle code does not ,define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited.
b. The statute encourages arbitrary and discfimim~tory enforcement.
c. The Statute fails to give a person of ordinary intelligence notice that his/her contemplated
conduct is forbidden.
d. The statute's reach punishes constitutionally protected activity as well as illegal activity.
e. The language of the statute encompasses a variety of protected lawful conduct.
f. The statute unnecessarily sweeps broadly into activity that has not been declared unlawful
in this Commonwealth.
22. These provisions are unconstitutional because they are not rationally related to the state's interest
in curbing DUI offenders.
23. These provisions are unconstitutional because the legislature has removed from the jury the
assessment of facts, other than the fact of a prior conviction, that increase the prescribed range of
penalties to which the defendant is exposed, and does not require that such facts be established
by proof beyond a reasonable doubt.
24. These provisions are unconstitutional because the statute fails to provide a rebuttable
presumption that the accused's BAC at the time of testing accurately reflects their BAC at the
time of driving.
25. These provisions are unconstitutional because they fail to provide for an affirmative defense
requiring the state to prove that the accused's BAC was at least .08% at the time of driving.
26. These provisions are unconstitutional because they' arbitrarily and capriciously create a BAC
classification scheme that has no relation to the relative inability of a person to function at each
level.
27. These provisions are unconstitutional because they encompass both lawful and unlawfial conduct.
28. These provisions are unconstitutional because they fail to provide a reasonable standard by
which a person may gauge their conduct.
29. These provisions are unconstitutional because ~tey encourage arbitrary and discriminatory
enforcement.
30. The Commonwealth violated the Defendant's United States and Pennsylvania Constitutional
Rights by charging him with such an unconstitutional statute.
31. The Department of Transportation further violated the Defendant's United States and
32.
Pennsylvania Constitutional Rights by enforcing the provisions of such an unconstitutional
statute.
Therefore, the Appellant submits that the Department's power to suspend his license should not
be enabled by its reliance on an unconstitutional statute, and the suspension should be rescinded.
WHEREFORE, the Appellant respectfully requests this Honorable Court to schedule a
hearing on the matter.
2108 Market Street, Aztec Building
Camp IFil, Pennsylvania 170114706
ID# 46430 Tel. (717) 763-1800
DAVID DOMITROVICH,
Appellant
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMB£LRLAND COUNTY, PENNSYLVANIA
NO.:
LICENSE SUSPENSION
APPEAL
ATTf~RNEV Vli'~RII~f?ATION
The ~d~si~, Pa~ck F. ~er, Jr., E~e, hereby v~es ~d states ~t:
1. He is the aRom~ for ~e ~pe~t, DaSd
2. He is ~tho~ to ~e ~s v~fion on ~s be~
3. ~e fa~s ~ foRh ~ the forego~g ~p~ ~e ~o~ to ~ ~d not n~s~y to ~s cfientg
4. ~e fa~s ~t fo~ ~ ~e forego~g ~p~ ~e ~e ~d ~ to ~e best of ~s ~owl~ge,
~o~tion ~d bereft ~d
5. He is aw~e t~t f~ ~tem~ts h~e~ ~e ~de subj~ to ~e pestles of 18 Pa. C.S. 49~,
rela~g to ~om f~fion to ~t~fifi~.
Date:~
~ek F. [,auer, Jr., Esquire
,~ 2108 Mark~ Street, Aztec Building
Camp I-fill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
DAVID DOMITROVICH,
Appellant
Vo
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PI.EAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.:
LICENSE SUSPENSION
'APPEAL,
C~RTII~CATli'~ 01~ gli'.RVlfTl~
I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and
in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure, by depositing a copy of the same in the United States Camp ~ Pennsylvania,
through first class certified mail, prepaid and addressed as fi)llows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, River~om Office Center
Harrisburg, PA 17104
Date:
P~sp~y' submitted,
2108 Market Street, Aztec Building
Camp ~ Pennsylvania 17011..4706
ID# 46430 Tel. (717) 763-1800
EXHIBIT A.
COMMONNEALTH OF PENNSYLVANIA
DEPARTHENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: NOVEMBER 02, 200q
Dear MR. DOMITROVICH:
WID · 043006117466164 g01
PROCESSING DATE 10/26/2DD4
DRIVER LICENSE · 2S449989
DATE OF BIRTH 11/18/1980
LXCENSE IN BUREAU
This is an Official Notlce of the Suspension of your Driving
Privilege as authorized by Section $80qE2I of the
Pennsylvania Vehicle Code. As a result of your 10/12/2004
conviction of violating Section $802B of the Vehicle Code
DUI BAC .10-<.16 on 04/$0/2004=
Your driving privilege is SUSPENDED for a period of 1
YEAR(S) effective 10/12/2004 at I2:01 a.m.
Before PennDOT can restore your driving privilege, you must
follow the instructions in this letter for COMPLYING NITH
THIS SUSPENSXON, PAYING THE RESTORATION FEE and PROVIDING
PROOF OF XNSURANCE. You should fo~oN ALL instructions very
carefully. Even if you have served all the tlme on the
suspension/revocation, ~e cannot restore your drtvlng priv-
ilege untll all the requirements are satisfied.
...... ~RISON R~EAS"~'' ~E~[~'M~-~T
The Court of CUMBERLAND CTY, Court Number 16,~7, Court Term
2004 has sentenced you to serve a prison term for this vi-
olation. Pursuant to Section 15ql(a.1) of the Vehicle Code,
you ~il! not receive credit for this suspension/revocation
or any additianal suspension/revacatian until you camglete
your prison term. The Court must certify your completion
to PennDOT. You may wish to contact your probation officer
and/or the Court after your release to make sure that
PennDOT is properly notified.
PAYING THE RESTORATION FEE
You must pay a restoration fee to PennDOT to be restored
from a suspension/revocation of your driving ~rivilege. 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. Nrite your driver's license number (listed on the first
page) on the check or money order to ensure proper
credit.
5. Follow the payment and mailing instructions on the back
of the application.
IGNITION INTERLOCK
Befo~e your dr'~ving privilege can be"~est~red you are re-
quired by law to have all vehicle(s) owned by you to be
equipped with an Ignition Interlock System, This is a result
of your convictipn for Driving Under the Influence. You will
receive more information regarding this requirement approx-
imately 30 days before your eligibility date.
PROVIDING PROOF OF INSURANCE
Within the last 30 days of your suspension/revocation, we
will send you a letter asking that you provide proof of in-
surance at that time. This letter will list acceptable
documents and what will be needed if you do not own a vehicle
registered in Pennsylvania.
IMPORTANT: Please make sure that PennDOT is notified if you
move from your current address. You may notify PennDOT of
your address change by calling any of the phone numbers
listed at the end of this letter.
APPEAL
You have ~he right--t0-a~P-eal this a'~i~n to the Court of
Common Pleas (Civi! Division) within $0 days of the mail
date, NOVEMBER 02, 2004, of this letter. Z~ you ~tle an
appeal in the County Court, the Court ~111 glve you a time-
stamped certified copy o~ 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 OFFZCZAL NOTZCE OF SUSPENSZON.
0~$006117~6&16~
S~ncerely,
Rebecca L. Bickley, Director
Bureau of Driver Licensing
[NFORNATION 7:00 a,m. to 9:0.0 p.m.
-IN--STATE ......... 1--800-9'5-2'-'~&00 TDD*-~-STAT~
OUT-OF-STATE 717-591-6190 TDD OUT-OF-STATE
HEB SITE ADDRESS www.dmv.state.pa,us
--1.~.800_228_0676 --
717-591-6191
000-00 ~.~4'~18'11],]~,8~01
PAY THIS ~
25.
Pr. EASE INDICATE THE ABOVE
OPERA'FOR OR TIT'_E NUMBER
Off YOUR CHECK OR IdONEY O;:IDER
62 $4499891000E 500
DO NOT SEND CASH
DAVXD R DOflXTROVXCH
TAUNTON RD -
HARRXSBURG PA 17~
DATE
FOR YOUR FILES
KATHLYN A. DOMITROVICH ~o-o~
RICHARD J. DOMITROVICH
1308
mlOlLlO&Bt, 6m: St, 2023~t0 Re' LIOB
DAVID DOMITROVICH,
APPELLANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
APPELLEE
: 04-5873 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this -10 \- day of February, 2005, the within license suspension
appeal, IS DISMISSED.
/:;:?-/-;:/
By the Cou %/ .
(\ ~ 0"
~.Yley, J
"
~rge H. Kabusk, Esquire
For the Department of Transportation
I
:sal
...J65eph D. Caraciolo, Esquire
For Appellant
cv.-/{) -Q 5
Ii.
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DAVID DOMITROVICH,
APPELLANT
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
APPELLEE
04-5873 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
OPINION AND ORDER OF COllRT
Bayley, J., February 10, 2005:--
David R. Domitrovich filed an appeal from a notice of suspension of his driving
privilege for one year. A hearing was conducted on February 7, 2005. The Department
suspended appellant's driving privilege:
As a result of your 10/12/2004 conviction of violating Section 3802B of the
Vehicle Code DUI BAC .10-<.16 on 04/30/2004.
The notice of suspension included the following:
IGNITION INTERLOCK
Before your driving privilege can be restored you are required by law
to have all vehicle(s) owned by you to be e,quipped with an Ignition
Interlock System. This is a result of your conviction for Driving Under the
Influence. You will receive more information regarding this
requirement approximately 30 days before your eligibility date.
(Emphasis added.)
First, appellant seeks an order reversing the ignition interlock requirement on the
following averments:
Under 75 PS 3805(g), the Department of Transportation may not impose
an ignition interlock requirement on a person that has committed an
04-5873 CIVIL TERM
offense under former section 3731, prior to October 151, 2003 without the
issuance of a court order. The Appellant ha~) previously entered into ARD
on a Chester County DUI charge that occum3d in June of 2003 and was
prosecuted under 75 PS 3731 (the repealed DUllaw). This is the
Appellant's only prior conviction. There has been no court order issued
requiring the Appellant to install ignition interllock on his automobiles.
Therefore, the Appellant submits that the Ignition Interlock requirement of
his suspension is improper.
The ignition interlock provision is in the Vehicle Code at 75 Pa.C.S. Section
3805. Subparagraph (g) provides:
Prohibition of authorization.- This section shall not give the department
authorization to impose an ignition interlock requirement on a person that
has committed an offense under former sl~ction 3731 prior to
October 1, 2003, without the issuance of a court order. (Emphasis
added.)
Section 3806, titled Prior offenses, provides:
(a) General rule.-Except as set forth in subsection (b),' the term
"prior offense" as used in this chapter shall mean a conviction,
adjudication of delinquency, juvenile consent decree, acceptance of
Accelerated Rehabilitative Disposition or othe,r form of preliminary
disposition before the sentencing on the present violation for any of the
following:
(1) an offense under section 3802 (relating to driving
under influence of alcohol or controlled substance);
(2) an offense under former section 3731 . ., (Emphasis
added.)
The current one year suspension with its future ignition interlock requirement is a
result of appellant being convicted of driving under the influence on October 12, 2004,
1 Subsection (b) relates to repeat offenses within ten years.
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04-5873 CIVil TERM
for violating Section 3802(b) of the new Vehicle Code on April 30, 2004.2 It is not
based on appellant having previously received the ARD for violating the prior driving
under the influence law at 75 Pa.C.S. Section 3731, on June 1,2003. Accordingly,
Section 3805(g) does not apply and appellant is not entitled to relief.
Second, appellant avers:
The Appellant was previously arrested for 75 PS 3731 DUI occurring on
June 1s, 2004 [sic]. The Appellant entered into ARD for this charge, but
was subsequently removed from that program upon the commission of the
Cumberland County DUI. The Appellant is currently fighting the Chester
County DUI charges and expects to prevail at trial. The Appellant submits
that the Cumberland County conviction should be counted as a first
offense for license suspension purposes, and as such, he should only be
subject to a one-year suspension, without intl3rlock, and with the
possibility of an Oll after 60 days.
The Department gave appellant notice that his one year suspension is
authorized by Section 3804(e)(2)(i). Section 3804(e) provides:
Suspension of operating privileges upon c:onviction.-
(1) The department shall suspend tlhe operating privilege of an
individual under paragraph (2) upon receiving a certified record of the
individual's conviction of or an adjudication of delinquency for:
(i) an offense under section 3,802 . . .
(2) Suspension under paragraph (1} shall be in accordance with
the following:
2 Section 3802(b) provides:
High rate of alcohol.-An individual may not drive, operate or be
in actual physical control of the movement of '3 vehicle after imbibing a
sufficient amount of alcohol such that the alcohol concentration in the
individual's blood or breath is at least 0.10% or less than 0.16% within two
hours after the individual has driven, operated or been in actual physical
control of the movement of the vehicle.
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(i) Except as provided for in subparagraph (iii): 12 months
for an ungraded misdemeanor or misdemeanor of the second
degree under this chapter. . .. (Emphasis added.)
Appellant was convicted of violating Section 3802 of the Vehicle Code. The one
year suspension of his driving privilege is mandated by Section 3804(e). Section 3805
provides:
(a) General rule.-If a person violates section 3802 (relating to
driving under influence of alcohol or controlled substance) and has a
prior offense as defined in section 3806(a) (relating to prior offenses)
or if a person has had their operating privileges suspended pursuant to
section 1547(b.1) (relating to chemical testin!~ to determine amount of
alcohol or controlled substance) or 3808(c) (relating to illegally operating a
motor vehicle not equipped with ignition interlock) and the person seeks a
restoration of operating privileges, the department shall require as a
condition of issuing a restricted license pursuant to this section that
the following occur:
(1) Each motor vehicle owned loy the person or registered to
the person has been equipped with an ignition interlock system and
remains so for the duration of the restricted license period.
(2) If there are no motor vehicles owned by the person or
registered to the person that the person so certify to the
department. A person so certifying shall be deemed to have
satisfied the requirement that all motor vehicles owned by the
person or registered to the person be equipped with an ignition
interlock system as required by this subsection. . . .
Appellant has presented no evidence in support of the averments in his petition
whereby the Department is not required to impose an ignitkln interlock requirement
under the current suspension based upon the certification of his prior ARD.
Third, appellant avers "that the entirety of Chapter 313 of the Vehicle Code is
unconstitutional." Therefore, he maintains that his license cannot be suspended under
3 Subparagraph (iii) relates to a violation of Section 3802(a).
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Section 3804(e) for being convicted of violating Section 3802(b). Appellant makes no
specific averments as to the constitutionality of the provisions in the Code that require
that the Department suspend a driving privilege or impose an ignition interlock
requirement. Any attack on the constitutionality of any other provisions of the Code
should have been raised by appellant in his prosecution for violating Section 3802(b)
which resulted in his conviction on October 12, 2004. Notwithstanding, this court has
already held that the new Vehicle Code at 75 Pa.C.S. Sections 3801-3817, is
constitutional. Commonwealth v. Neufeld, _ Cumberland L.J. _ (CP-21-CR-1393-
2004, January 19, 2005).
For the foregoing reasons, the following order is ent,ered.
ORDER OF COURT
AND NOW, this ~ day of February, 2005, the within license suspension
appeal, IS DISMISSED.
By the Court,
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Edga . Balyley, J.
George H. Kabusk, Esquire
For the Department of Transportation
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Joseph D. Caraciolo, Esquire
For Appellant
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