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HomeMy WebLinkAbout05-0968 DENNIS M. DARR Petitioner v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ......- OJ---...... q ~<j C.:V.'i ,=-1/ """-- : NO. '- COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent UCENSE SUSPENSION APPEAL AND NOW, this .Gl4+hday of February, 2005, comes Petitioner Dennis M. Darr, through his attorneys, Mancke, Wagner & Spreha, who respectfully represent 1. Petitioner Dennis M. Darr, is an adult individual residing at 11 W. Pomfret Street Carlisle, Pennsylvania and is a licensed Pennsylvania motor vehicle operator. 2. The occurrences allegedly giving rise to the suspension hereinafter occurred on or about January 7, 2005 in Cumberland County, 3. Petitioner has received notice of an 18-month suspension as authorized by Section '1547BIII' and a copy of said license suspension notice is attached hereto and made a part hereof as Exhibit A. 4. The Pennsylvania Motor Vehicle Code contains no such exact provision authorizing a license suspension and such suspension is illegal, unjust and improper. 5, Further, the license suspension is illegal, unjust and improper for reasons which include, but are not limited to, the following: a. there was no valid or proper request to take chemical testing; b. there was no valid, intelligent or knowing refusal to take a chemical test c. ~ 1547 and ~3802, facially and as applied to the Petitioner, are in violation of the Slate and Federal Constitutions; d. any alleged refusal would violate equal protection of the laws in violation of the Slate and Federal Constitutions; , e. Petitioner was not properly advised and/or timely advised of his rights and/or obligations to submit to chemical testing; f. the statement of the ollicer(s) were confusing and/or misleading; g. the booking officer improperly advised the Petitioner concerning his rights and his requirements and read a deficient legally erroneous, and misleading DL -26 (see, Garner v. Penn Dot 04-1815 Civil, Cumbo Cty., Hess, J.) which resulted in an unknowing, unintelligent and coerced decision concerning the taking of the breath test h. the warnings failed to comply with Act 177 of 2004, 75 Pa.C.SA ~1547(b)(ii); i. Petitioner was misadvised about his right to a lawyer and further denied the right to a lawyer as required by 6th Amendment of the U.S. Constitution and Article I, ~9 of the Pa, Constitution; j. the Petitioner's right to counsel, pursuant to 6th Amendment of the U.S. Constitution and Article I, ~9 of the Pa. Constitution, were violated at the time of the request for testing; k. under the circumstances at the booking center, Petitioner had a right to counsel under the State and Federal Constitutions before deciding to take a chemical test; I. ~ 1547 and/or ~3802 of the Pennsylvania Motor Vehicle Code constitutes: (i) Violation of substantive due process under the Pa. (Article I, ~9) and U.S. Constitutions (5th and 14th Amendments) as being vague and overbroad facially and as applied to the Petitioner and as impermissibly delegating a legislative function to the judiciary in violation of the Pa. and U,S. Constitutions, See Commonwealth V. Noel and Travis, 857 A.2d 1283 at 1288 (2004), concurring opinion. (ii) Act 24 of 2003, Chapter 38, ~3802 and/or ~1547 and their related provisions violate procedural due process under Article I, ~9 ofthe Pa. Constitution and the 5th and 14th Amendments of the U.S. Constitution facially and as applied to the Petitioner. (iii) Chapter 38 of Act 24 of 2003, ~3802 and/or ~1547 and their related provisions violate equal protection guaranteed by the State and Federal Constitutions, facially and as applied to the Petitioner, in that they treat similarly situated persons differently and such different treatment is not rationally related to the protection of the public from intoxicated drivers. 2 , (iv) Act 24 of 2003, ~3802 and/or ~1547 (suspension of 18 months) violate the constitutional and due process protections against ex post facto laws in violation of U.S. Constitution, Article I. ~10 and Pa, Constitution, Article I, ~17, facially and as applied to the Petitioner and improperly provide for an impermissible retroactive application. (v) The Petitioner was advised that there was no right to an attorney at the time of a request for the chemical test or refused such right then such action violates the Defendanfs 6th Amendment (U.S. Constitution) and Article I, ~9 (Pa. Constitution) right to counsel, facially and as applied to the motorist (vi) It is believe that the Petitioner was advised if he remained silent during the request process, his silence would be a refusal which statements were in violation of his right to remain silent as guaranteed by the 5th Amendment of the U.S. Constitution and Article I, ~9 of the Pa, Constitution. WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to determine the validity of the license suspension oullined in Exhibit A. Dated: ~ ~ ~..o '-t John . Mancke, Esq., ID No. 07212 Man e, Wagner & Spreha 2233N. Front Street Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner 3 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT QF TRANSPORTATION Bureau of Driver Licensing Mail Date: JANUARY 25, 2005 DENNIS M DARR APT 4 11 W POMFERT CARLISLE PA ST 17013 WID. 050186194469855 001 PROCESSING DATE 01/18/2005 DRIVER LICENSE. 23881991 DATE OF BIRTH 12/03/1975 Dear MR. DARR: This is an Official Notice of the suspension of your Driving Privilege as authorized by Section 1547BIII of the PennsYlvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 01/07/2005: . Your driving privilege is SUSPENDED fo~ a pe~iod of 18 MONTH(S) effective 03/01/2005 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 pnssession on or before 03/01/2005. You may surrender these items before, 03/01/2005, for earlier credit; however, you maY not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may applY for and obtain a photo identification card at anY Driver License Center for a cost of $10.00. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your phnto identification card. You will not ~ece1ve c~edit towa~d se~v1ng any suspension until we ~eceive you~ 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 swnrn notarized letter stating you are aware of the suspension of your driving privilege. You' must specifY in your letter whY you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: 050186194469855 Pennsylvania Depa~tment of T~anspo~tation Bu~eau of D~ive~ Licensing P.O. Box 68693 Ha~~isbu~g, PA 17106-8693 2. Upon ~eceipt, ~eview and acceptance of yoU~ Pennsylvania d~ive~'s licensees), lea~ne~'s pe~mit(s), and/o~ a swo~n nota~ized lette~, PennDOT will send YOU a ~eceipt confi~ming the date that c~edit began. If YOU do not ~eceive a ~eceipt f~om us within 3 weeks, please contact ou~ office. Othe~wise. yOU will not be given c~edi t towa~d se~ving this suspension. PennDOT phone numbe~s are listed at the end of this lette~. 3. If YOU do not ~etu~n all cu~~ent d~ive~ license p~oducts, we must ~efe~ this matte~ to the PennsYlvania State Police for p~osecution unde~ SECTION 1571(a) (4) of the PennsYlvania Vehicle Code. PAVING THE RESTORATION FEE Vou must pay a ~esto~ation fee to PennDOT to be ~estored from a suspension/revocation of you~ driving p~ivilege. To pay YOu~ restoration fee, complete the following steps: 1. Retu~n the enclosed Application fo~ Restoration. The amount due is listed on the application. 2. W~ite your drive~'s license number (listed on the first page) an the check or money order to ensure propel' c~edit. 3. Follow the payment and mailing inst~uctions an the back of the application. APPEAL Vou have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, JANUARY 25, 2005, of this letter. If yeu file an appeal in the County COUl't, the ceu'l't will give you a time-stamped cel'tified copy of the ap,peal. In order for YOu~ 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 Thi~d Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. Vou must return all cur~ent PennsYlvania d~ive~ license p~oducts to PennDOT by 03/01/2005. 050186194469855 SincerelY, ~~,~ Rebecca L. Bickley, Director Bureau of Driver Licensing IN STATE OUT-OF-STATE WEB SITE ADDRESS INFORMATION 7:00 a.m. to 9:00 p.m. 1-800-932-4600 TDD IN STATE 717-391-6190 TDD OUT-OF-STATE www.dmv.state.pa.us 1-800-228-0676 717-391-6191 VERIFICATION I hereby verify that the statements made in this document are true and correct I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. 2-?3,-o.s,- Date ~~)~ Dennis M. Darr . , ~ q ("", ~ <:'\ ~ C -I''', ~ r"', ~ G ~ ~ C'.) \ ' ~ -." ~ r','; ~ ( , . -,.. lJ \ ~ ~ \ '\ ....-:... :..:...',': ~ , ~ , , - ~ ~ t..,..:: ,-'(;.,-" Ar,.' 'l~ ti I .- ./) . DENNIS M. DARR Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. OS- tf&S ~ COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this f.VJdaYOf~\\c\.\\t'\'- ,2005, upon consideration of the within Petition, it is hereby ordered and decreed that a hearing be held on the ~ day of '-I A MJL. , 2005, 'f at ~ o'clock in Courtroom -2-. Cumberland County Courthouse, Carlisle, ~ennSYIVania. Notice of said hearing shall be sent by certified mail to the Department ofT ransportation by Petitioner's attorney at least sixty days prior to the date of the hearing. '-.\ ~,r ./.? ft _.~--- ---. By the Court, J. Distribution: Prgthonotary's Office ....dOhn B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110 vP'A Dept ofTransportation, Office of Chief Counsel, 1101 S. Front Street Harrisburg, PA 17104 \11NVI\1;\::J,>r'~3d ""^1~". ,'c' "'~...""I"'" 1\";,r,: ,1,_\ 1 ',' ,:,cii<, ;v l. ~ :2 [.jd z- ~nlw seGZ },bV10;\OH1C:dd 3H1 :!O 38!J~O-o31H DENNIS M. DARR Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-968 CIVIL PRAECIPE TO WITHDRAW To the Prothonotary: Please withdraw the above-captioned license suspension appeal. Dated: June 3,2005 Res John B. ancke, Esq., ID No. 07212 Mancke, Wagner & Spreha 2233 N. Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner () '""" 0 = c: = " ~ c.n -orr! t-- ~:!l rnrr: c: :z -'.~' :z: ~~ . -~ 85C I ~-:J cr> r:"'-r '~ <c: -- =r! 'T'i :l;:c :t>" - ::!.l ~C\ ::x 9" J>E rp om ~ C) ?5 &" -< 0!1= -.J'