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13-2930
Supreme Cqu-ik Pennsylvania COuI f-ofCoznmonPleas ForProthonotary Use Only Civil -Cover Sl et r Docket No County The injbrmation collected on this form is used solely.for court administration purposes. This form does not supplement or replace the f ling and service ofpleadings or other papers as required by law or rules of Court. Commencement of Action: 0 Complaint El Writ of Summons Q Petition •>' f7 Transfer from Another Jurisdiction 0 Declaration of Taking Lead Plaintiff's Name: Lead Defendant's Name: C o F' • a4 7ran sr� Dan AeCher' Dollar Amount Requested: Elwithin arbitration limits I Are money damages requested? D Yes iNo (check one) ©outside arbitration limits Is this a Class Action Suit? El Yes 0 No Is this an MDJAppeal? Yes i o Name ofPlaintiff/Appellant's Attornev:7D k4e , 5y,0 tWNe \,k >VCL\k i c><;,- El Check here if you have no attorney(are a Self-Represented [Pro Se] Litigant) Nature of the Case: Place an"X"to the left of the ONE case_caiegory.that most accurately describes your PRII114RY CASE. If you are making more than one type of claim;check the one that you consider most important. TORT (do not include.,Wass Tort) CONTRACT(do riot include Judgments) CIVIL APPEALS El Intentional Buyer Plaintiff Administrative Agencies Malicious Prosecution Debt Collection: Credit Card F Board of Assessment 0 Motor Vehicle Debt Collection: Other B rd of Elections Nuisance ept.of Transportation Premises Liability Statutory Appeal:Other S F7 Product Liability(does not include mass tort) El Employment Dispute: Discrimination El Slander/Libel/Defamation e' Other: Employment Dispute: Other El Zoning Board T . El Other: •; Q Other: � MASS TORT ft 0 Asbestos 0 Tobacco Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY 17 Toxic Waste Other: © Ejectment Common Law/Statutory Arbitration Eminent Domain/Condemnation Declaratory Judgment Q Ground Rent 0 Mandamus El Landlord/Tenant Dispute Non-Domestic Relations Ntortgage Foreclosure:Residential Restraining Order PROFESSIONAL LLABLITY F1 Mortgage Foreclosure: Commercial 0 Quo Warranto El Dental 0 Partition ®Replevin Legal E] Quiet Title El Other: Medical FJ Other: F1 Other Professional: Updated 1/U2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNS VANIA No. lu i (TyT pe your name) " Vs. Driver's License/Auto Registration Appear- , P w CE14 , Commonwealth of Pennsylvania Department of Transportation �' Bureau of Drivers Licensingr APPEAL OF DRIVER'S LICENSE/AUTO REGISTRATION SUSPENSION AND NOW,this (enter today's date) May 23 2013 ,comes the Appellant, (Type your name) 12AIA S?6C- , by his/her attorney, Kelli Brownewell Statt, Esq. and states as follows: 1. Appellant's PA operator's number or automobile registration number is: 21170846 2. PennDOT proposes, by Notice dated (insert"mailing" date here) April 24 , 2013 to suspend Appellant's Vdriving privileges ❑automobile registration for a period of(Insert length of suspension) one year pursuant to Section 1547 of the Vehicle Code, which suspension is to be effective (Insert suspension effective date) May 29 2013 ****A copy of the Notice sent by PennDOT is attached to this Appeal**** 3. The suspension of Appellant's operating privileges is contrary to law in that: (Check those which apply) QThe police lacked reasonable grounds to stop Appellant and/or request Appellant to submit to a chemical test. aAppellant did not knowingly or intelligently refuse a chemical test; The conviction on which Appellant's suspension is based was overturned by successful appeal, OR is currently under appeal. (Attach a copy of the court docket this Appeal). Other(Specify reason:) �.a10175 T2*,9909 Qx The suspension of Appellant's automobile registration is contrary to law in that: F] My failure to have insurance was for a period of less than 31 days AND I did not drive nor permit anyone else to drive my vehicle during the time it was without insurance. (Attach proof of insurance to this Appeal and either a notarized statement of PennDOT form MV-221 to document non-operation of the vehicle). Other(specify reason:) WHEREFORE, Appellant respectfully requests this Honorable Court to sustain the appeal from the suspension of operating privileges or automobile registration. Respectfully submitted, J (Si na rde here) Keii,, &6(A)A.P e name here v V (Type ) VERIFICATION The undersigned hereby states that the statements made in the attached Appeal of Suspension or Registration are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements in the attached Appeal are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. Signature: Type Name: Ana �(�{2CY1)e_'r Address: 2081 Market St, Extension City/State/Zip Code: Middletown, PA 17057 Telephone Number: 717-576-0497 Email address: dsprecher @ pa.gov 1 a COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date : APRIL 24 , 2013 DANA M SPRECHER WID # 131076746812480 001 2081 MARKET ST PROCESSING DATE 04/17/2013 EXTENSION DRIVER LICENSE # 21170846 MIDDLETOWN PA 17057 DATE OF BIRTH 12/22/1966 Dear MS. SPRECHER : 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 04/0 6/2013: M Your driving privilege is SUSPENDED for a period of 3 YEAR(S) effective 05/29/2013 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 05/29/2013 . You may surrender these items before , 05/29/2013 , 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 131076746812480 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 three (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 . 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 . Please note : Paying the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation . If you have not acknowledged your suspension/revocation , please follow the instructions listed under "Complying with this Suspension/Revocation" . APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date , APRIL 24, 2013, of this letter . If 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 /b 131076746812480 Remember , this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 05/29/2013. Sincerely, 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 TDD OUT-OF-STATE 717-412-5380 WEB SITE ADDRESS www.dmv . sfate . Pa . us IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA Dana Sprecher tog Qq-36 No. (Print your name) vs. Driver's License/Auto Registration Appeal Commonwealth of Pennsylvania Department of Transportation Bureau of Driver Licensing ORDER SCHEDULING HEARING ON APPEAL AND. NOW, this 02; day of lok 1 , 20/1 a hearing is scheduled on the appeal of Petitioner for the I q 4-11 day of/6"A4 20 0 at —1 :30 A. m in Courtroom # I of the Cumberland County Courthouse,Le Courthouse Square, 4`h Floor, Carlisle, PA 17013,at which time testimony will be taken and argument heard. A copy of this Order has been served on Appellant. It shall be Appellant's responsibility to serve a copy of this Appeal, all attachments, and this Order on the attorney for the Commonwealth, at the following address: Office of Chief Counsel Vehicle and Traffic Law Division Riverfront Office Center,3rd Floor 1101 South Front Street Harrisburg,PA 171042516 It shall further be Appellant's responsibility to file a Certificate of Service with the Prothonotary stating that service was made on the Commonwealth of Pennsylvania. By the Court, tiger co I-es fQu*t eL M W 1944 K. ?n4c-w-xLZ& -� :-Z, DANA SPRECHER, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. DRIVER' S LICENSE/AUTO E2 REGISTRATION APPEAL _ua COMMONWEALTH OF PENNSYLVANIA : =M C_— DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING NO. 13-2930 CIVIL TERM _<r, CJ1 ORDER OF COURT ;rc" AND NOW, this 14th day of August, 2013 , upon consoef$ti-on of the Petitioner' s appeal from suspension of her operating privilege, and after hearing argument of counsel, the Court makes the following Findings of Fact : 1 . On April 6, 2013, at approximately 1 : 15 a.m. , Petitioner operated a Ford pickup in East, Pennsboro Township, Cumberland County, in a manner which attracted the attention of Officer Scott Rood. 2 . Appropriately, Officer Rood followed the vehicle and observed it weaving within its lane and crossing the fog line approximately four times . 3 . Appropriately, Officer Rood pulled the vehicle over. 4 . When approached by the Officer, the Petitioner admitted to having consumed alcoholic beverages . 5 . The Petitioner exhibited indications of being under the influence including having bloodshot and glassy eyes and an odor of alcoholic beverages . 6 . The Petitioner had difficulty performing the standard field sobriety test known as the one-leg stand, having complained of a bad knee which was otherwise not observable by the Officer. 7 . The Petitioner was arrested and taken to the Booking Center at the Cumberland County Prison, arriving there at approximately 2 : 54 a.m. - 8 . Officer Rood clearly read the DL-26 form to the Petitioner regarding the chemical test warnings . 9 . The Petitioner refused to sign the DL-26 form. 10. After hearing the testimony from Officer Rood and viewing the video of the Petitioner' s behavior at the , Booking Center, we find that the testimony of the Petitioner regarding her refusal is not credible . 11 . The Petitioner was not confused about the information read to her on the DL-26 form by officer Rood. 12 . The Petitioner knowingly and consciously refused to to submit to chemical testing. Based on our findings, we are satisfied that the Commonwealth has met its burden of proof, and further that the defendant has failed to show either that she did not knowingly or consciously refuse the test, or that she was unable physically to submit to the draw of her blood. Accordingly, it is hereby ORDERED AND DIRECTED that Petitioner' s appeal is denied and the supersedeas form granted in this case is rescinded. By the Court, 4a1bert 2H &M5�—and,�J - ZKelli Brownewell Statt, Esquire 440 Bosler Avenue Lemoyne, PA 17013 w/F r the Petitioner P'hilip M. Bricknell, Esquire For the Department of Transportation :vae $ex OZ.; L L—u is ': i11E PRO-MONO 't Ziai3SEP I3 PM 2: 15 Kelli Brownewell Statt, Esquire 440 Bosler Avenue CUMBERLAND SN COUNT 1f Lemoyne, PA 17043 (717) 433-2860 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANA SPRECHER, • Petitioner : No. 13-2930 CIVIL v. : DRIVER'S LICENSE/AUTO COMMONWEALTH OF PENNSYLVANIA : REGISTRATION APPEAL DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING MOTION FOR TRANSCRIPTION OF PROCEEDINGS AND NOW, this 13th day of September, 2013, comes the above-named petitioner, by and through her Counsel, Kelli Brownewell Statt, Esquire, and respectfully files this Motion for Transcription of Proceedings and in support thereof, avers the following: 1. On August 14, 2013, this Honorable Court, after argument,per order, denied the Petitioner's appeal from the suspension of her operating privileges. 2. An Appeal to the Superior Court was filed to the order of August 14, 2013, on September 13, 2013. 3. A transcription of the hearing held on August 14, 2013, is required for the completion of the Record to the Commonwealth Court of Pennsylvania. THEREFORE, Petitioner respectfully requests this Honorable Court grant this Motion for a Transcription of Proceedings and order that the proceedings from August 14, 2013, be transcribed and then forwarded to the Prothonotary for distribution. 4e,eiRespectfully submitted by, • 3 \5J . Kelli Brownewell Statt, squire 440 Bosler Avenue Lemoyne, PA 17043 (717) 433-2860 kjFTHE R0 HOoT",,v Kelli Brownewell Statt, Esquire 7013 SEP 13 - 440 Bosler Avenue F11 2: Lemoyne, PA 17043 CUM E1 .AN(717)433-2860 D COU14TY P NNS YJ VA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DANA SPRECHER, Petitioner No. 13-2930 CIVIL V. DRIVER'S LISENCE/AUTO COMMONWEALTH OF PENNSYLVANIA REGISTRATION APPEAL DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING NOTICE OF APPEAL Notice is hereby given that Dana Sprecher, the Petitioner named above,hereby appeals to the Commonwealth Court of Pennsylvania from the order signed in this matter on August 14, 2013, and docketed on August 15, 2013. 1. The order of August 14, 2013, was entered on the docket on August 15, 2013. A copy of the order and docket entry are attached. 2. Appellant hereby requests the transcript of the proceedings for August 14,2013, in the above captioned matter. A copy of the motion for transcripts filed on September 13, 2013, and the proposed order, are attached. Respectfully submitted, Date: September 13, 2013 e(eili Wrownewell Stattls�irLe4 A-- 440 Bosler Avenue Lemoyne, PA 17043 (717)433-2860 Attorney for the Appellant Supreme Court ID# 90597 s-7, &d pd 47 ck,�Wl 3 J ('61V pAjjUt4o &&vAd 1411 Kelli Brownewell Statt, Esquire 440 Bosler Avenue Lemoyne, PA 17043 (717)433-2860 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANA SPRECHER, V. Petitioner : No. 13-2930 CIVIL COMMONWEALTH OF PENNSYLVANIA DRIVER'S LICENSE/AUTO REGISTRATION APPEAL DEPARTMENT OF TRANSPORTATION : BUREAU OF DRIVER LICENSING CERTIFICATE OF SERVICE I, Kelli Brownewell Statt, Esquire, do hereby certify that on this date I served a copy of the foregoing Notice of Appeal, via United States First Class Mail to the following: Office of Chief Counsel/Philip M. Bricknell, Esquire Vehicle and Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 The Honorable Albert H. Masland, Judge Court of Common Pleas, Cumberland County Cumberland County Courthouse One Courthouse Square, Fourth Floor Carlisle, PA 17013 Official Court Reporter for the Honorable Albert H. Masland, Judge Cumberland County Courthouse One Courthouse Square, Fourth Floor Carlisle, PA 17013 Date: September 13, 2013 Tit - elli Brownewell Statt, Esquire, SuP. Ct. #90597 Attorney for the Petitioner/Appellant 440 Bosler Avenue Lemoyne, PA 17043 (717) 433-2860 VERIFICATION I verify that the statements made in the foregoing Notice of Appeal and Certificate of Service, are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C_S. §-4-9 04 relating to unsworn falsification to authorities. _ . .__ r Kelli Brownewell Statt, Esquir Counsel for Petitioner/Appellant DANA SPRECHER, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. DRIVER'S LICENSE/AUTO E2 REGISTRATION APPEAL -0 COMMONWEALTH OF PENNSYLVANIA :* MW DEPARTMENT OF TRANSPORTATION : =M BUREAU OF DRIVER LICENSING NO. 13-2930 CIVIL TERM —Ln mac;' ORDER OF COURT AND NOW, this 14th day of August, 2013, upon consi- ef$tion of the Petitioner' s appeal from suspension of her operating privilege, and after hearing argument of counsel, the Court makes the following Findings of Fact: 1 . On April 6, 2013 , at approximately 1 : 15 a.m. , Petitioner operated a Ford pickup in East. Pennsboro Township, Cumberland County, in a manner which attracted the attention of Officer Scott Rood. 2 . Appropriately, Officer Rood followed the vehicle and observed it weaving within its lane and crossing the fog line approximately four times . 3 . Appropriately, Officer Rood pulled the vehicle over. 4 . When approached by the Officer, the Petitioner admitted to having consumed alcoholic beverages. 5 . The Petitioner exhibited indications of being under the influence including having bloodshot and glassy eyes and an odor of alcoholic beverages. 6 . The Petitioner had difficulty performing the standard field sobriety test known as the one-leg stand, having complained of a bad knee which was otherwise not observable by the Officer. 7. The Petitioner was arrested and taken to the Booking Center at the Cumberland County Prison, arriving there at approximately 2 :54 a.m. 8 . Officer Rood clearly read the DL-26 form to the Petitioner regarding the chemical test warnings. 9. The Petitioner refused to sign the DL-26 form. 10. After hearing the testimony from Officer Rood and viewing the video of the Petitioner' s behavior at the , Booking Center, we find that the testimony of the Petitioner regarding her refusal is not credible. . 11 . The Petitioner was not confused about the information read to her on the DL-26 form by Officer Rood. . 12. The Petitioner knowingly and consciously refused to to submit to chemical testing. Based on our findings, we are satisfied that the , Commonwealth has met its burden of proof, and further that the defendant has failed to show eithpr that she did not knowingly or consciously refuse the test, or that she was unable physically to submit to the draw of her blood. Accordingly, it is hereby ORDERED AND DIRECTED that Petitioner' s appeal is denied and the supersedeas form granted in this case is rescinded. By the Court, Albert H. Ma and, J. Kelli Brownewell Statt, Esquire 440 Bosler Avenue Lemoyne, PA 17013 V;F'r the Petitioner Philip M- Bricknell, Esquire. the Department of Transportation :vae ISAJ Kelli Brownewell Statt,Esquire 440 Bosler Avenue Lemoyne,PA 17043 (717)433-2860 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DANA SPRECHER, Petitioner No, 13-2930 CIVIL V. DRIVER'S LICENSE/AUTO COMMONWEALTH OF PENNSYLVANIA REGISTRATION APPEAL DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING MOTION FOR TRANSCRIPTION OF PROCEEDINGS AND NOW, this 1P day of September, 2013, comes the above-named petitioner, by and through her Counsel, Kelli Brownewell Statt, Esquire,and respectfully files this Motion for Transcription of Proceedings and in support thereof, avers the following: 1. On August 14, 2013,this Honorable Court, after argument, per order,denied the Petitioner's appeal from the suspension of her operating privileges. 2. An Appeal to the Superior Court was filed to the order of August 14,2013,on September 13,2013. 3. A transcription of the hearing held on August 14, 2013, is required for the completion of the Record to the Commonwealth Court of Pennsylvania. THEREFORE,Petitioner respectfully requests this Honorable Court grant this Motion for a Transcription of Proceedings and order that the proceedings from August 14,2013, be transcribed and then forwarded to the Prothonotary for distribution. Respectfully submitted by, A;I&- 3 `�g k-011--i Brownewell Statt, Esquire 440 Bosler Avenue Lemoyne,PA 17043 (717)433-2860 Kelli Brownewell Statt, Esquire 440 Bosler Avenue Lemoyne,PA 17043 (717)433-2860 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DANA SPRECHER, Petitioner No. 13-2930-CIVIL V. DRIVER'S LICENSE/AUTO COMMONWEALTH OF PENNSYLVANIA REGISTRATION APPEAL DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING ORDER OF COURT AND NOW,this_day of 2013,IT IS HEREBY ORDERED AND DECREED THAT the Notes of Testimony from the hearing in the above captioned matter, and held on August 14, 2013,be transcribed and then forwarded to the Prothonotary for distribution. BY THE COURT: Albert H. Masland, Judge Distribution: Counsel for Appellee, Office of Chief Counsel/Philip M. Bricknell, Esquire,Riverfront Office Center, 3`d Floor 1101 S. Front St.,Harrisburg,PA 17104-2516 Counsel for Appellant, Kelli Brownewell Statt,Esquire,440 Bosler Avenue, Lemoyne, PA 17043 Official Court Reporter, for the Honorable Albert H. Masland, Judge, One Courthouse Square,Fourth Floor,Carlisle,PA 17013 Michael F. Krimmel, Chief Clerk,Pennsylvania Judicial Center, 601 Commonwealth Ave., Suite 2100,P.O. Box 69185, Harrisburg,PA 17106 1- 1 Cumberland County Prothonotary' s Office Page Civil Case Print 2013-02930 SPRECHER DANA (vs) PENNSYLVANIA COMMONWEALTH OF Reference No. . : Filed. . . . . . . . : 5/23/2013 Case Type . . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . . . : 10:28 Judgment . . . . . : . 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial . . . . Disposed Desc. : Disposed Date. 0/00/0000 Case Comments ------------- Higher Crt 1 . : Higher Crt 2 . : General Index Attorney Info SPRECHER DANA PLAINTIFF STATT BROWNEWELL KELLI J 2081 MARKET ST EXTENSION MIDDLETOWN PA 17057 PENNSYLVANIA COMMONWEALTH OF PLAINTIFF TRANSPORATION BUREAU OF DRIVER THIRD FLOOR RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 5/23/2013 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - BY KELLI B STATT ATTY FOR PLFF ------------------------------------------------------------------- 5/28/2013 ORDER SCHEDULING HEARING ON APPEAL - DATED 5/28/13 - IN RE APPEAL OF DRIVER' S LICENSE/AUTO REGISTRATION SUSPENSION - HEARING IS SCHEDULED FOR 8�14/13 AT 1 : 30 PM CR 1 - BY THE COURT ALBERT H MASLAND J - COP ES MAILED 5/29/13 -------- - - --------------------------------------------- 8/15/2013 ORDER OF COURT DATED 8-14-13 IN RE APPEAL FROM SUSPENSION - APEAL IS *DENIED* AND SUPERSEDEAS IS RESCINDED - BY THE COURT ALBERT H MASLAND J- COPIES MAILED 8-15-13 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - Escrow Information Fees & Debits Beq Bal Pymts/Ad End Bal PETITION 65 . 25 65 . 25 . 00 TAX ON PETITION . 50 . 50 . 00 SETTLEMENT 9 . 50 9 . 50 . 00 AUTOMATION FEE 5 . 00 5 . 00 . 00 JCP FEE 23 . 50 23 . 50 . 00 APPEAL HIGH CT 57 . 00 57 . 00 . 00 ------------------------ ------------ 160 . 75 160 . 75 . 00 End of Case Information TRUE COPY FROM RECORD In Testimony whereof,I here Onto set my hand and the sqpl of said Co yn 84 Carlisle, Pa- This llf' day of .,20)51 thon"otar'y DANA SPRECHER, IN THE COURT OF COMMON PLEAS OF PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING 13-2930 CIVIL TERM ORDER OF COURT AND NOW, this 18th day of September, 2013, Petitioner, having failed to serve this court with a Notice of Appeal, shall file and serve a copy in the chambers of this judge a concise statement of errors complained of on appeal within twenty-one (21) days of this date. By the Court, a11Albe . Kelli Brownewell Statt, Esquire 440 Bosler Avenue Lemoyne, PA 17043 For Petitioner ✓ Philip M. Bricknell, Esquire Office of Chief Counsel Vehicle and Traffic Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 rn� sal �� � -<> ©c CD 4 ° W rt Commoubjeattb Court of Venug;prbania Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue,Suite 2100 Michael Krimmel,Esq. P.O.Box 69185 Chief Clerk of Commonwealth Court Harrisburg,PA 17106-9185 September 19, 2013 wvvw.Pacourts.us NOTICE OF DOCKETING APPEAL bz RE: Sprecher, D. v. DOT U, -� _'�z 1586 CD 2013 r O 'Q J Filed Date: September 13, 2013 Trial Court Docket No: 13-2930 CIVIL 2" "- 2y -7-1 -- C;)C' A Notice of Appeal from an order of your court has been docketed in the Coo no rea.b'"! Court of Pennsylvania. The Commonwealth Court docket number must be``bn ;all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation,certification and transmission of the record. The address to which the Court is to transmit the record is set forth on the next page of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa.R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on the next page of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Participant Name Participant Type Kelli Brownewell Statt, Esq. Dana Sprecher Appellant Philip Murray Bricknell, Esq. Bureau of Driver Licensing Appellee Address all written communications and direct all filings to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Filings may be made in person between 9:00 a.m. and 4:00 p.m. (except Saturdays, Sundays, and holidays observed by the Pennsylvania courts), by mail as provided by general rules, or as otherwise permitted by general rules of court. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANA SPRECHER : NO. 13-2930 Civil APPELLANT Vs. : DRIVER'S LICENSE/AUTO : REGISTRATION APPEAL COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION • 0 e?ro h°n o 1av BUREAU OF DRIVER LICE SI G f 3 ,S p+027 PM i.• U.w4.b.2ria�d � -P,24\�S t-t ia. MOTION FOR SUPERSEDEAS AND NOW, this 27th day of September, 2013, pursuant to provisions of 75 Pa.C.S.A. Section 1550(a) and (b)(1)(i), the Appellant, having filed a Notice of Appeal to the Commonwealth Court of Pennsylvania, docketed as 1586 CD 2013, following a hearing before the Honorable Albert H. Masland, Jr. on August 14, 2013, requests this Court to grant a supersedeas pending the outcome of the appeal. Respectfully submitted, 11 , ilk , Date: 9/27/2013 Kelli Brownewe Statt, Esquire 319 South Front Street Harrisburg, PA 17104 (717) 433-2860 Supreme Court ID# 90597 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANA SPRECHER : NO. 13-2930 Civil APPELLANT Vs. : DRIVER'S LICENSE/AUTO : REGISTRATION APPEAL COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING • APPELLEE • ORDER fir AND NOW, this / day of aA4_,, , 2013, upon consideration of the Appellant's Motion for Supersedeas, it is hereby ordered and decreed that the appellant's motion for Supersedeas in the above-captioned matter is GRANTED. Appellant's driver's license suspension is stayed pending the outcome of the appeal to the Commonwealth Court of Pennsylvania, docket 1586 CD 2013. By the Court: Albert . Masland, Jud e Dist bution: elli Brownewell Statt, Esq. 319 South Front Street Harrisburg, PA 17104 For Appellant/Petitioner hillip M. Bricknell, Esq. �.-' Office of Chief Counsel -u Vehicle and Traffic Law Division =' 'f Riverfront Office Center, 3rd floor : J.7 1101 South Front Street -< r---w - Harrisburg, PA 17104-2516 r e-Clp fVb t tEct_ Ln • /011 v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA DANA SPRECHER : NO. 13-2930 Civil APPELLANT Vs. : DRIVER'S LICENSE APPEAL COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION • m BUREAU OF DRIVER LICENSING ; APPELLEE • cn -< cap ) CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPS , AND NOW, comes DANA SPRECHER,through her attorney, Kelli Brownewell Esquire, who files the within Concise Statement of Matters Complained of on Appeal, as follows: 1. Whether this Honorable Court erred in ruling that the United States Supreme Court decision in Missouri v. McNeely,holding that an involuntary blood draw is a search under the Fourth Amendment and as such a warrant is generally required, was not applicable to Appellant's case because McNeely was a criminal case and Appellant's case is of a civil nature regarding implied consent. 2. Whether the Appellant's refusal to submit to chemical testing was a right protected by the Fourth Amendment, and therefore Pennsylvania's Implied Consent Law is unconstitutional. WHEREFORE, pursuant to Pa.R.A.P. Rule 1925(b), 42 Pa. C.S.A,the defendant submits the foregoing as reasons relied upon for appeal. Respectfully submitted, . ,,,„ elli :rownewell Statt, EsquirigJ 319 South Front Street Harrisburg, PA 17104 (717) 433-2860 kjbesq @gmail.com Attorney for the Appellant Supreme Court ID# 90597 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DANA SPRECHER : NO. 13-2930 Civil APPELLANT Vs. : DRIVER'S LICENSE APPEAL • COMMONWEALTH OF PENNSYLVANIA • DEPARTMENT OF TRANSPORTATION • BUREAU OF DRIVER LICENSING • APPELLEE CERTIFICATE OF SERVICE I, Kelli Brownewell Statt, Esquire, do hereby certify that on this date I served a copy of the foregoing Concise Statement of Matters Complained of on Appeal via United States First Class Mail to: Office of Chief Counsel/Phillip M. Bricknell, Esq. Vehicle and Traffice Law Division Riverfront Office Center, 3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 The Honorable Albert H. Masland, Judge Court of Common Pleas, Cumberland County Cumberland County Courthouse One Courthouse Square, Fourth Floor Carlisle, PA 17013 Date:OC- . V 20 i3 / Kelli Brownewell Statt,Esq., Sup #90597 Attorney for the Petitioner/Appellant 319 South Front Street Harrisburg,PA 17104 (717) 433-2860 DANA SPRECHER : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING : 13-2930 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., November 20, 2013:-- Licensee, Dana Sprecher, appeals the Order dated August 14, 2013, denying her appeal from the suspension of her operating privileges. Licensee complains of the following matters on appeal: 1. Whether this Honorable court erred in ruling that the United States Supreme Court decision in Missouri v. McNeely, holding that an involuntary blood draw is a search under the �.. Fourth Amendment and as such a warrant is generally - required, was not applicable to [Licensee]'s case because Eo McNeely was a criminal case and [Licensee]'s case is of a - civil nature regarding implied consent. < i_ .rc 2. Whether the [Licensee]'s refusal to submit to chemical testing was a right protected by the Fourth Amendment, and Z,c therefore Pennsylvania's Implied Consent Law is 7: unconstitutional. - - Concise Statement of Matters Complained of on Appeal, filed October S, 2013. FACTS At approximately 1:15 a.m. on April 6, 2013, Licensee operated a Ford pickup in East Pennsboro Township, Cumberland County, in a manner that attracted the attention of Officer Scott Rood. After observing Licensee's vehicle cross the fog line 13-2930 CIVIL TERM approximately four times, Officer Rood activated his overhead lights and pulled Licensee over. Officer Rood testified that he could smell alcohol coming from within the vehicle as soon as he approached the window. He also observed that Licensee exhibited indications of being under the influence including having bloodshot and glassy eyes. When asked, Licensee admitted to having consumed alcoholic beverages. After instructing Licensee to step out of the vehicle, Officer Rood attempted to administer a preliminary breath test (PBT), but Licensee gave very little air, something Officer Rood testified is common for someone trying to avoid getting a positive result. Officer Rood then asked Licensee to submit to other sobriety tests and Licensee agreed. The first test was the Horizontal Gaze Nystagmus Test, the results of which led Officer Hood to believe that Licensee was on some type of depressant, such as alcohol. After Licensee refused to do the Walk-and-Turn test because of her bad knees, Officer Rood asked her to do the One-Leg Stand. The results again indicated that Licensee was under the influence. Officer Rood then attempted to administer another PBT but still felt as though Licensee was not giving enough air to get a proper reading. At no time did Licensee mention any medical breathing problems. The reading of the second PBT was .19%. In Officer Rood's experience, when someone does not blow enough air, the true reading is actually higher than what is displayed. Based on the results of the second PBT and other sobriety tests, Licensee was placed under arrest.' ' Even in the absence of the PBT results and the Horizontal Gaze Nystagmus Test, there were more than enough indications that Licensee was under the influence to warrant her arrest. -2- 13-2930 CIVIL TERM At the Cumberland County Prison, Licensee was transferred to an interview room where Officer Rood clearly read the DL-26 form to her regarding the chemical test warnings, which Licensee refused to sign. Licensee testified that she did not understand why the blood sample was necessary and never intended to refuse, she just misunderstood. However, in light of all the other evidence, including the video of Licensee's behavior at the prison, Licensee's testimony lacked all credibility. Missouri v. McNeely In short, Licensee's reliance on Missouri v. McNeely is misplaced, as the following discussion makes manifest. Missouri v. McNeely is a criminal case that deals with the emergency exception to the warrant requirement contained in the Fourth Amendment. Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013). Tyler McNeely was arrested for driving while intoxicated after he failed multiple field sobriety tests. Id. at 1556-57. The arresting officer attempted to administer a portable breath-test, but McNeely would not consent to the test. Id. at 1557. Therefore, the arresting officer took McNeely to a local hospital for a blood sample. Id. "Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license for one year and could be used against him in a future prosecution." Id. McNeely refused the blood test. Id. Nevertheless, the officer, without obtaining a warrant, directed the hospital staff to take a blood sample. Id. McNeely moved to suppress the results of the blood test on grounds that it violated his Fourth Amendment right. Id. The question before the United States Supreme Court was "whether the natural dissipation of alcohol in the bloodstream -3- 13-2930 CIVIL TERM establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations." Id. at 1558. The Court declined to adopt such a categorical rule and instead held that '[wjhether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Id. at 1563. A simple reading of Licensee's Concise Statement of Matters Complained of on Appeal demonstrates that Missouri v. McNeely is not applicable to this case. Licensee claims that McNeely holds "that an involuntary blood draw is a search under the Fourth Amendment and as such a warrant is generally required." This statement mischaracterizes the holding of McNeely. The issue in McNeelywas not whether an involuntary blood draw is a search under the Fourth Amendment but "whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations." Id. at 1558. Nevertheless, as Licensee states, McNeely deals with an involuntary blood draw. See id. at 1557. McNeely's entire case was based on a motion to suppress the blood sample taken from him after he refused to submit to the test. Id. Licensee, on the other hand, was not forced to provide a blood sample after she refused. This Court did not even reach the question presented in McNeely because, unlike in McNeely, Licensee was not subjected to a search against her will. Pennsylvania's Implied Consent Law is Not Unconstitutional Licensee's argument that Pennsylvania's Implied Consent Law is unconstitutional is without merit. As stated by the Pennsylvania Supreme Court, "all drivers in our -4- 13-2930 CIVIL TERM Commonwealth are deemed to consent to BAC tests when a police officer has reasonable grounds to believe the driver was operating his vehicle while under the influence of alcohol." Commonwealth v. Stair, 699 A.2d 1250, 1254 (Pa. 1997). Furthermore: [u]nder the operation of section 1547(b) of our Implied Consent Law, Licensee had no constitutional right to refuse chemical testing. . . . [D]riving in Pennsylvania is a civil privilege conferred on individuals who meet the necessary qualifications set forth in the Vehicle Code . . . . Under the terms of the Implied Consent Law, one of the necessary qualifications to continuing to hold that privilege is that a motorist must submit to chemical sobriety testing, when requested to do so by an authorized law enforcement officer in accordance with the prerequisites of the Implied Consent Law. The obligation to submit to testing is related specifically to the motorist's continued enjoyment of the privilege of maintaining his operator's license. Id. at 1255-56; see also Commonwealth v. Graham, 703 A.2d 510, 512 (Pa. Super. Ct. 1997). Additionally, Officer Rood and the Department of Transportation followed the appropriate procedures in this case. Less than a month ago, our Commonwealth Court reiterated the procedure in Pennsylvania to sustain a suspension of operating privileges after the driver refuses to submit to chemical testing. Vora v. Commonwealth, Deo't of Transo.. Bureau of Driver Licensing, 90 C.D. 2013, 2013 WL 5822945 (Pa. Commw. Ct. Oct. 30, 2013). Specifically: In order to sustain a suspension of a licensee's operating privilege under Section 1547 of the Vehicle Code for a refusal to submit to chemical testing, PennDOT must establish that the licensee (1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test, (3) refused to do so; and (4) was warned that -5- 13-2930 CIVIL TERM refusal might result in a license suspension. Once that burden is met, the licensee has the burden to prove that (1) he was physically incapable of completing the test or (2) his refusal was not knowing and conscious. Id. (internal citations omitted). The Department of Transportation met its burden in this case. The record clearly shows that Licensee was arrested for driving under the influence by Officer Rood who had reasonable grounds to believe that she was operating a vehicle under the influence of alcohol. Not only could he smell alcohol coming from Licensee's vehicle but Licensee admitted to consuming alcohol. Licensee also had bloodshot and glassy eyes and performed poorly on at least two field sobriety tests. Additionally, the record, including the video recording, also clearly shows that Licensee was asked to submit to a chemical test and refused to do so after being read her rights contained on the DL-26 form. The DL-26 form specifically states that "[i]f you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months." Licensee failed to meet her burden. First, Licensee presented no evidence that she was physically incapable of completing the blood test. Licensee testified that she does not like needles but her dislike of needles was never communicated to Officer Rood and, even if it was, disliking needles is not a trait that renders Licensee physically incapable of supplying a blood sample. Second, Licensee did not present sufficient evidence to prove that her refusal was not knowing and conscious. Licensee does not deny that Officer Rood read her the DL-26 form. Furthermore, although Licensee testified that she did not understand why the blood sample was necessary and never intended to refuse the test, Licensee's -6- 13-2930 CIVIL TERM testimony was not credible. In sum, Licensee knowingly and consciously refused to submit to a blood test. Conclusion For the above stated reasons, the Commonwealth Court should affirm this Court in all respects. By the Court, Albert H Ili Brownewell Statt, Esquire Attorney for Licensee Philip M. Bricknell, Esquire For Vehicle and Traffic Law Division //�I2o/i3 J rYj -7- CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) COMMONWEALTH COURT OF PENNSYLVANIA To the Prothonotary of the Appellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Dana Sprecher vs Commonwealth of Pennsylvania,Department of Transportation, Bureau of Drivers Licensing 2013-2930 Civil Term 1586 CD 2013 The documents comprising the record have been numbered from No. 1 to 62, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 11/21/2013. David ue 1, Prothon tary Alma Kostjerevac, Dep ty. An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Commonwealth of Pennsylvania County of Cumberland ss. 1, David D.Buell Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full,true and correct copy of the whole record of the case therein stated, wherein Dana Sprecher Plaintiff, and Commonwealth of Pennsylvania Department of Transportation,Bureau of Drivers Licensing Defendant, as the same remains of record before the said Court at No. 2013-2930 of Civil Term.158(- Ct> 4013 In -TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seal of said Court this 21st day o NovVmber A. D., 2013 Prothonotary I, Kevin A.Hess President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that David D.Buell , by whom the annexed record, certificate and attestation were made and given,and who,in his own proper handwriting,thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County,was,at the time of so doing,and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania,duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere,anA that the said record, certificate and attestation are in due form of law and made bvt4e proper office . President.ludec Commonwealth of Pennsylvania County of Cumberland ss: 1, David D.Buell Prothonotary of the Court of Common Pleas in and for the said County.. do certify that the Honorable Kevin A.Hess by whom the foregoing attestation was made.and who has thereunto subscribed his name,was,at the time of making thereof,and still is President Judge of the Court of Common Pleas,Orphan'Court and Court of Quarter Sessions of the Peace in and for said County,duly Commissioned and qualified,to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere, IN "TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 21s ty of November A.D. 2013 Proi linnotary No. Term 19 No 2013-2930 Civil Term 1586 CD 2013 Dana Sprecher Versus Commonwealth of Pennsylvania, Department of Transportation, Bureau of Drivers Licensing EXEMPLIFIED RECORD From Cumberland County Debt, 1nt. from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county c in the Commonwealth of Pennsylvania 2013-2930 Civil Term to No. 1586 CD 2013 Term. 19 is contained the following: COPY OF Appearance DOCKET ENTRY Dana Sprecher vs. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Drivers Licensing **SEE CERTIFIED COPY OF DOCKET ENTERIES** Civil Case Print 2013-02930 SPRECHER DANA (vs) PENNSYLVANIA COMMONWEALTH OF u Reference No. . : Filed. . . . . . . . : 5/23/2013 Case Type. . . . . ; CIVIL APPEALS - AGENCI Time. . . . . . . . 10:28 Judgment.. . . . . 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial. . . . Disposed Desc. : Disposed Date. 0/00/0000 ----- ------------ Case Comments -------- Higher Crt 1. : 1586 CD 2013 Higher Crt 2. : ******************************************************************************** General Index Attorney Info SPRECHER DANA PLAINTIFF STATT BROWNEWELL KELLI J 2081 MARKET ST EXTENSION MIDDLETOWN PA 17057 PENNSYLVANIA COMMONWEALTH OF PLAINTIFF TRANSPORATION BUREAU OF DRIVER THIRD FLOOR RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 * Date Entries ******************************************************************************** - FIRST ENTRY - - - �- 5/23/2013 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - BYKELLI B STATT ATTY FOR PLFF ------------------------------------------------------------------- 5/28/2013 ORDER SCHEDULING HEARING ON APPEAL - DATED 5/28/13 - IN RE APPEAL OF DRIVER' S LICENSE/AUTO REGISTRATION SUSPENSION - HEARING IS SCHEDULED FOR 8/14/13 AT 1:30 PM CR 1 - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 5/29/13 -------------------------------------------------—---------------- 8/15/2013 ORDER OI COURT DATED 8-14-13 IN RE APPEAL FROM SUSPENSION - APEAL IS *DENIED* AND SUPERSEDEAS IS RESCINDED - BY THE COURT ALBERT H MASLAND J- COPIES MAILED 8-15-13 ------------------------------------------------------------------- q- io 9/13/2013 MOTION FOR TRANSCRIPTION OF PROCEEDINGS - BY KELLI BROWNEWELL STATT------------------------------------------------------------------- �g 9/13/2013 NOTICE OF APPEAL TO COMMONWEALTH COURT - BY KELLI BROWNEWELL STATT ATTY FOR APPELLANT ------------------------------------------------------------------- ,� 9/19/2013 ORDER OF COURT - 9/18/13 - IN RE: PETITIONER SHALL FILE AND SERVE A COPY IN CHAMBERS OF JUDGE A CONCISE STATEMENT OF ERRORS COMPLAINED OF ON APPEAL WITHIN 21 DAYS OF THIS DATE - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 9/19/13 ------------------------------------------------------------------- a(}- 9/20/2013 COMMONWEALTH COURT OF PA NOTICE OI APPEAC DOCKETING # 1586 CD 2013 ------------------------------------------------------------------- a, 9/27/2013 MOTION FOR SUPERSEDEAS - BY KELLI BROWNEWELC STATT ATTY FOR APPELLANT ------------------------------------------------------------------- ,2 10/02/2013 ORDER - 10/1/13 - IN RE: MOTION FOR SUPERSEDEAS - *GRANTED* - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 10/2/13 ------------------------------------------------------------------- �J 10/08/2013 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY KELLI BROWNEWELL STATT ATTY FOR APPELLANT ------------------------------------------------------------------- �-2110/08/2013 TRANSCRIPT OR PROCEEDINGS BEFORE J ALBERT H MASLAND - 8/14/13 ------------------------------------------------------------------- 6 ' 11/20/2013 OPINION PURSUANT TO PA RCP 1925 - 11/20/13 - BY THE COURT ALBERT H MASLAND------------------------------------------------------------------- 11/21/2013 NOTICE OF DOCKET ENTRIES MAILED TO KELLI BROWNEWELL STATT ESQ AND PHILIP M BRICKNELL ESQ - - LAST ENTRY * Escrow Information * Fees & Debits Beg Bal P*ymts/Adj End Bal ******************************** ******** ****** ******************************* Civil Case Print j 2013-02930 SPRECHER DANA (vs) PENNSYLVANIA COMMONWEALTH OF Reference No. . : Filed. . . . . . . . : 5/23/2013 Case Ty e. . . . . : CIVIL APPEALS - AGENCI Time. . . . . . . 10:28 Judgmen�. . . . . 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial . . . . Disposed Desc. : Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1. : 1586 CD 2013 Higher Crt 2 . : PETITION 65 . 25 65 .25 . 00 TAX ON PETITION .50 .50 . 00 SETTLEMENT 9. 50 9 .50 . 00 AUTOMATION FEE 5 . 00 5 . 00 . 00 JCP FEE 23 .50 23 .50 . 00 APPEAL HIGH CT 57. 00 57 . 00 . 00 ------------------------ ------------ 160 .75 160 .75 . 00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY °'s?(.?M RECORD In Testimony whereof, I here unto set my hand and the seal of said Court�at/Carlisle,Pa. This S -clay of /`�OV ,20 L-3 Prothonotary C P sito, New CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) COMMONWEALTH COURT OF PENNSYLVANIA To the Prothonotary of the Appellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Dana Sprecher vs Commonwealth of Pennsylvania, Department of Transportation, Bureau of Drivers Licensing 2013-2930 Civil Term 1586 CD 2013 The documents comprising the record have been numbered from No. 1 to 62, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 11/21/2013. ' David D. Cu- , rothon• ary Alma Kostjerevac, Deput . An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dana Sprecher, Appellant v. : No. 1586 C.D. 2013 : SUBMITTED: April 17, 2014 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION BY vI'-- M r" CJ C) rn r• JUDGE LEADBETTER FILED: September 29, 2014 Dana Sprecher appeals from the order of the Court of Common Pleas of Cumberland County (trial court) denying her statutory appeal from a one-year suspension of her operating privilege imposed by the Department of Transportation, Bureau of Driver Licensing (Department) for her refusal to submit to a blood test. Sprecher argues that Pennsylvania's implied consent law of Section 1547(a) of the Vehicle Code, as amended, 75 Pa. C.S. § 1547(a), violates the Fourth Amendment to the United States Constitution, U.S. CONST. amend. IV, prohibiting an unreasonable search and seizure without a warrant.' In support, she 1 Section 1547(a) and (b) of the Vehicle Code provides in relevant part: (a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a (Footnote continued on next page...) relies on Missouri v. McNeely, U.S. , 133 S. Ct. 1552 (2013), in which the United States Supreme Court refused to adopt a per se exigency exception to the warrant requirement of the Fourth Amendment for a nonconsensual blood test of a drunk -driving suspect. We find Sprecher's reliance on McNeely inapposite. Accordingly, we affirm. The relevant facts found by the trial court are undisputed. On April 6, 2013 at approximately 1:15 a.m., Officer Scott Rood of the East Pennsboro Township Police Department pulled over a Ford pickup truck driven by Sprecher after observing her truck weaving and crossing the fog line. Upon approaching the vehicle, the officer smelled alcohol and noticed that her eyes were bloodshot and glassy. Sprecher admitted to the officer that she had consumed alcohol. The officer attempted to administer. a preliminary breath test (PBT), but she did not continued...) controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle: (1) in violation of ... section 3802 (relating to driving under influence of alcohol or controlled substance) .... (b) Suspension for refusal.— (1) 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 .... [Emphasis added.] The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article 1, Section 8 of the Pennsylvania Constitution, Pa. CONST. art. I, § 8, also prohibits "unreasonable searches and seizures" without a properly issued warrant. 2 provide sufficient air into the machine. The officer then performed field sobriety tests, which indicated that she was intoxicated. The second PBT showed an alcoholic content of 0.19% in her blood, although she did not provide sufficient air. The officer placed her under arrest for driving under the influence of alcohol (DUI) and took her to the Cumberland County Prison where he read her the chemical testing warnings from the Form DL -26 and asked her to submit to a blood test. She refused to do so and refused to sign the Form DL -26. Subsequently, the Department notified her that her driving privilege was suspended for one year for her failure to submit to a blood test. She appealed the suspension to the trial court. At a de novo hearing, the Department presented Officer Rood's testimony and a packet of documents to support the suspension. Sprecher testified that she told Officer Rood that she had knee problems and chronic bronchial problems, for which she was on inhalers and a prescribed medication. She further testified that she had worked in a prison in Camp Hill for 21 years and was distraught when she was taken to the prison. She stated: "I don't like needles. I was in a prison. I was scared. I don't understand why blood needed to be taken from me when I already participated in two [B]reathalyzers." Notes of Testimony at 22; Supplemental Reproduced Record at 30b. After consideration of Officer Rood's testimony and a video showing the chemical testing warnings being given to Sprecher and her behavior at the prison, the trial court rejected her testimony as not credible. The court concluded that the Department met its burden to sustain the suspension, and that she failed to establish that her refusal to submit to chemical testing was not knowingly and consciously made or that she was physically incapable of submitting to chemical 3 testing.' The court rejected her argument that Pennsylvania's implied consent law is unconstitutional under McNeely. The court noted that unlike in McNeely, she was not compelled to provide a blood sample after her refusal to submit to a blood test. The court accordingly denied her appeal. Sprecher argues that Pennsylvania's implied consent law violates the Fourth Amendment prohibiting an unreasonable search and seizure without a warrant. She relies on the Supreme Court's statement in McNeely that "[w]e have never retreated ... from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests." McNeely, U.S. at 133 S. Ct. at 1565. While acknowledging that McNeely was a criminal case, she maintains that the rationale behind the McNeely holding is equally applicable to a license suspension proceeding under the implied consent law.' In McNeely, the driver was arrested for DUI and taken to the hospital for a blood test. He was given an implied consent warning that his refusal to voluntarily submit to the test would result in an immediate revocation of his 2 In a statutory appeal from a license suspension for a refusal to submit to chemical testing, the Department has the burden of establishing that the licensee (1) was arrested based upon reasonable grounds for the police officer to believe that the licensee was operating a motor vehicle while under the influence of alcohol or a controlled substance; (2) was asked to submit to chemical testing; (3) refused to do so; and (4) was specifically warned that a refusal would result in a license suspension. Campbell v. Dept of Transp., Bureau of Driver Licensing, 86 A.3d 344, 348 (Pa. Cmwlth. 2014). Once the Department has met its burden, the licensee must establish that the refusal was not knowingly and consciously made or that he or she was physically incapable of taking a chemical test. Yourick v. Dep't of Transp., Bureau of Driver Licensing, 965 A.2d 341, 344 (Pa. Cmwlth. 2009). 3 Because Sprecher raises only the legal question of whether the implied consent law is constitutional under McNeely, our review of the trial court's order is plenary. Whalen v. Dep't of Transp., Bureau of Driver Licensing, 32 A.3d 677, 679 (Pa. 2011). 4 driver's license. When he refused to consent to the test, the officer directed a lab technician to take a blood sample from him. The blood sample showed that the alcoholic content in his blood was well above the legal limit. After he was charged with DUI, he moved to suppress the results of the blood test, arguing that taking his blood without a search warrant violated his rights under the Fourth Amendment. The lower court agreed, concluding that the exigency exception to the Fourth Amendment's warrant requirement did not apply to a DUI case. The Missouri Supreme Court affirmed. The issue before the United States Supreme Court in McNeely was whether the natural dissijation of alcohol in the bloodstream per se falls within the exigency exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in drunk -driving investigations. The State of Missouri acknowledged that under the exigency exception, the reasonableness of a warrantless search is evaluated based on the totality of circumstances. The State, however, sought an adoption of a per se rule that as long as a police officer has probable cause to arrest a drunk -driving suspect and a blood test is conducted in a reasonable manner, it is per se reasonable to obtain a blood sample without a warrant. The Court first observed that a compelled physical intrusion beneath one's skin and into veins to obtain a blood sample for use as evidence in a criminal investigation implicates most personal and deep-rooted expectations of privacy. McNeely, U.S. at , 133 S. Ct. at 1558. The Court also noted that because an individual's alcoholic level gradually declines soon after he or she stops drinking, a delay to secure a warrant for a blood test will "negatively affect the probative value of the results." Id. at , 133 S. Ct. at 1561. The Court refused to 5 adopt a per se rule and held that "while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, ... it does not do so categorically" and that "[w]hether a warrantless blood test of a drunk -driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Id. at , 133 S. Ct. at 1563.4 The McNeely holding is inapplicable to this license suspension proceeding and does not support Sprecher's argument that the implied consent law violates the Fourth Amendment. As required by Section 1547(b)(1) of the Vehicle Code, a blood test was not conducted after she refused to submit to one. Thus, she was not subject to a warrantless search and, therefore, there was no violation of her rights under the Fourth Amendment. Where results of chemical testing are introduced as evidence in a criminal trial, it is properly excluded if it is found to be the fruit of an illegal arrest. Dep't of Transp. v. Wysocki, 535 A.2d 77, 79 (Pa. 1987). The purpose of such exclusionary rule is "to deter police officials from engaging in improper conduct for the purpose of obtaining criminal convictions." Id. The Legislature, however, did not intend to engraft the exclusionary rule onto the implied consent law. Id. In Pennsylvania, operating a motor vehicle "is a civil privilege conferred on individuals who meet the necessary qualifications set forth in the 4 In so holding, the McNeely Court noted advances made for the more expeditious processing of warrant applications by telephone or other electronic means, such as e-mail and video conferencing, and by use of standard warrant application forms, citing, inter alia, Rule 203(A) of the Pennsylvania Rules of Criminal Procedure, Pa. R.Crim.P. 203(A), which permits a use of "advanced communication technology ... to submit a search warrant application and affidavit(s) and to issue a search warrant." McNeely, U.S. at , 133 S. Ct. at 1562. The Court also observed that a majority of states either place significant restrictions on obtaining a blood sample or prohibit nonconsensual blood tests altogether, as in Section 1547(b)(1) of the Vehicle Code. Id. at . 133 S. Ct. at 1566. 6 Vehicle Code." Commonwealth v. Stair, 699 A.2d 1250, 1255 (Pa. 1997). The objective of the implied consent law is to protect the public by providing an effective means of denying intoxicated motorists the privilege of using the highways of this Commonwealth. Kostyk v. Dep't of Transp., 570 A.2d 644, 647 (Pa. Cmwlth. 1990). A prerequisite for holding an operating privilege is submitting to chemical testing when asked to do so by a police officer in accordance with the implied consent law. Stair, 699 A.2d at 1255. Drivers have "no constitutional right to refuse" to submit to a chemical test or to request a specific test. Kostyk, 570 A.2d at 647. There are "no constitutional infirmities" in the implied consent law of Section 1547 of the Vehicle Code. Id. at 648. Accordingly, the trial court's order is affirmed. Leza6.12.4„, BONNIE BRIGANCE LEADBETTER, Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dana Sprecher, Appellant v. : No. 1586 C.D. 2013 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER AND NOW, this 29th day of September, 2014, the order of the Court of Common Pleas of Cumberland County in the above -captioned matter is AFFIRMED. Certified from the Record SEP 2 9 2014 and Order Eidt Leza 6.4t, BONNIE BRIGANCE LEADBETTER, Judge ›-• c.-: •.> c,r)