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HomeMy WebLinkAbout05-4807 BRIAN D. SEMUTA, Appellant V. COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: OS • y 207 Cz, e -1-Q.--- LICENSE SUSPENSION APPEAL APPEAL FROM SL51 1VCinAT (HA) PFFLIJ'Q S PRLVLL,FGF. AND NOW, comes the Appellant, Brian D. Semuta, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr, LLC, respectfully avers the following: 1. Appellant resides at 901 Allen Street, New Cumberland, Pennsylvania 17070. 2. Appellant received a Notice dated September 1, 2005, that as a result of his June 6, 2005, conviction of violating Section 3802B of the vehicle code, his driving privileges were being suspended for a period of twelve (12), effective suspension date October 6, 2005, at 12:01 a.m. 3. Appellant filed a timely appeal of his conviction on September 8, 2005. 4. Appellant sent a request for a six month delay of his drivers license suspension as per 75 § 1555 to PennDOT on September 9, 2005, and has not yet received a response regarding the request. 5. Appellant submits that it would not be fair for him to serve a suspension for a conviction that a timely filed appeal is pending. WHEREFORE, your Appellant respectfully requests your Honorable Court to delay his drivers license suspension, pending the result of the appeal of his conviction. Respectfully su itted, "Marlin arkley, Esquire Law Offices of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 Date: September 15, 2005 ID# 84745 Tel. (717) 763-1800 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: SEPTEMBER 01, 2005 BRIAN D SEMUTA WID * 052376122694483 001 901 ALLEN STREET PROCESSING DATE 08/25/2005 DRIVER LICENSE * 25775872 NEW CUMBERLAND PA 17070 DATE OF BIRTH 09/17/1981 Dear MR. SEMUTA: This is an official Notice of the Suspension of Your Driving Privilege as authorized by Section 3804E2I of the Pennsylvania Vehicle Code. As a result of your 06/06/2005 conviction of violating Section 3802B of the Vehicle Code DUI BAC .10-<.16 on 10/15/2004: ¦ Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 10/06/2005 at 12:01 a.m. Before PennDOT can restore your driving Privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefully. Even if you have served all the time on the suspension/revocation, we cannot restore your driving priv- ilege until all the requirements are satisfied. 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 10/06/2005. You may surrender these items before, 10/06/2005, 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 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. 052376122694483 1. 2. 3 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 Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 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. PRISON RELEASE REQUIREMENT The Court of CUMBERLAND CTY, Court Number 2761, 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 will not receive credit for this suspension/revocation or any additional suspension/revocation until you complete your prison term and you have complied with the requirements listed in this letter. The Court must certify your com- pletion 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 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. 052376122694483 3. Follow the payment and mailing instructions on the back of the application. 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 the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, SEPTEMBER 01, 2005, 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 certi- fied copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 10/06/2005. Sincerely, 9;? ?--- zge4v) Janet L. Dolan, Acting Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/T0: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7:00 IN STATE OUT-OF-STATE TOD IN STATE TDD OUT-OF-STATE AM TO 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 BRIAN D. SEMUTA, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO.: COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION APPEAL , BUREAU OF DRIVER LICENSING, Appellee ATTORNEY VE MIC'AT1ON The undersigned, Marlin L. Markley, Esquire, hereby verifies and states that: 1. He is the attorney for the Appellant, Brian D. Semuta; 2. He is authorized to make this verification on his behalf, 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, 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unworn falsification to authorities. Respectfully Date: September 15, 2005 V(aarlin L! arkley, Esquire Law Office of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 BRIAN D. SEMUTA, Appellant V. 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 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, Pennsylvania, through first class certified mail, prepaid and addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Date: September 15, 2005 Respectfully MarlK Markley, Esquire Law offices of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 6 0 ?1 ? L O J rr7 r ECE!VEC SrPr 1rJ' 2005° BRIAN D. SEMUTA, Appellant V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENSING, Appellee ® ORDER OF COURT ?? na n?'' AND NOW, this day of ` cY/?L 2005, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is hereby Ordered that a Hearing on the matter shall be held on J, day of Aie O 200_5 at A 00 o'clock ?. m. in Courtroom No. ? of the Cumberland County Courthouse. A supersedeas is granted pursuant to Vehicle Code Section 1550(b)(1) until such time that this honorable court resolves this appeal. BY THE COURT: A Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, 17104 4arlin L. Markley, Law Offices of Patrick F. Lauer, Jr., LLC, ,?• \V?J ,©! 2108 Market St., Camp Hill, PA 17011 01 0 J. FILED-Ot= ICE OF THE P^OTI-' MOFARY 2095 SEP 22 Gii Q: 35 FEPNSYDi'AN'!A BRIAN D. SEMUTA, Appellant V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 05-4807 CIVIL COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL APPFid,ANT'S MOTION FOR CONTINUANCE WITH CONCURRENCE AND NOW, comes the Appellant, Brian D. Semuta, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., LLC, respectfully avers the following: Appellant is scheduled for a hearing on December 5, 2005. 2. Appellant's suspension is based on a DUI conviction that has been appealed to the Superior Court. Appellant's conviction appeal is still pending. 4. Appellant requests this Honorable Court to continue the drivers license suspension appeal hearing. 5. PennDOT Attorney, George Kabusk, concurs with appellant's request. WHEREFORE, your Appellant respectfully requests your Honorable Court to continue the hearing for his appeal of his drivers license suspension. Respectfully Marlin L. Markley, Esquire Date: December 2, 2005 Law Offi es of Patrick F. Lauer, Jr, LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 BRIAN D. SEMUTA, : IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. NO.: 05-4807 CIVIL COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENSING, Appellee The undersigned, Marlin L. Markley, Esquire, hereby verifies and states that: I. He is the attorney for the Appellant, Brian D. Semuta; 2. He is authorized to make this verification on his behalf; 3. The facts set forth in the foregoing Motion for Continuance are known to him and not necessarily to his client; 4. The facts set forth in the foregoing Motion for Continuance are true and correct to the best of his knowledge, information and belief; 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unworn falsification to authorities. Respectfully -Martin . arkley, Esquire Law Offi es of Patrick F. Lauer, Jr., LLC 2108 Market Street; Aztec Building Camp Hill, Pennsylvania 17011-4706 Date: December 2, 2005 ID# 84745 Tel. (717) 763-1800 BRIAN D. SEMUTA, : IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. NO.: 05-4807 CIVIL COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENSING, Appellee I hereby certify that I am this day serving a copy of the foregoing MOTION 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, Pennsylvania, 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 Respectfully submitted, Marlin 1- 1Markley, Esquire Law Offices of Patrick F. Lauer, Jr, LLC 2108 Market Street; Aztec Building Camp Hill, Pennsylvania 17011-4706 Date: December 2, 2005 ID# 84745 Tel. (717) 763-1800 ? ? ^..a ;i __... t. . ._a ?.? ?. 6ti: BRIAN D. SEMUTA, IN THE COURT OF COMMON PLEAS OF APPELLANT CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 05-4807 CIVIL TERM ORDER OF COURT AND NOW, this 'p day of December, 2005, upon the agreement of the parties, the hearing scheduled for December 5, 2005, is cancelled. Counsel for Semuta shall immediately notify this court and counsel for the Department of Transportation upon any order entered in the Superior Court of Pennsylvania on the pending appeal. The case will then be rescheduled. By the Court, Edgar B. Bayley, Marlin L. Markley, Esquire For Brian D. Semuta .,George Kabusk, Esquire For the Department of Transportation :sal ,_ __ r,: ;= ?_ ?,, _? :, _ ., `= , ` _ ?; ? ' ?_ _ BRIAN D. SEMUTA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-4807 LICENSE SUSPENSION APPEAL MOTION TO SCHEDULE MATTER FOR HEARING AND NOW comes the Department of Transportation (hereinafter referred to as "Department") by and through its attorney, George H. Kabusk, Assistant Counsel, and hereby respectfully represents as follows: 1. The Department of Transportation notified the petitioner by notice dated September 1, 2005, that as a result of the petitioner's conviction of a violation of Section 3802B, relating to DUI BAC .10 < .16, on October 15, 2004, the petitioner's operating privilege was being suspended for 1 year, effective October 6, 2005, pursuant to Section 3804E21 of the Vehicle Code. See Department's exhibit 1, sub-exhibit 1. 2. The petitioner filed an appeal on September 15, 2005. 3. The petitioner in his petition indicated that he appealed the underlying conviction of a violation of Section 3802B of the Vehicle Code, and that it would not be fair for him to serve a suspension for a conviction while there is a timely appeal pending of the underlying conviction of a violation of Section 3802B of the Vehicle Code. 4. The petitioner's operating privilege has been restored pending appeal pursuant to Section 1550 of the Vehicle Code. 5. A hearing in this matter was scheduled for December 5, 2005. 6. The Court on July 6, 2005, issued an order which reads a follows: AND NOW, this 5th day of December, 2005, upon the agreement of the parties, the hearing scheduled for December 5, 2005, is cancelled. Counsel for Semuta shall immediately notify this court and counsel for the Department of Transportation upon any order entered in the Superior Court of Pennsylvania on the pending appeal. The case will then be rescheduled. 7. The Superior Court in Commonwealth of Pennsylvania v. Semuta, 902 A.2d 1254 (Pa. Super. 2006), affirmed the judgment of the Court of Common Pleas which found the petitioner guilty of a violation of Section 3802B of the Vehicle Code. See attached, exhibit 2. 8. The Department requests that this matter be scheduled for hearing. 9. Attorney Markley has informed the undersigned that the petitioner filed a Petition for Allowance of Appeal with the Supreme Court. 10. The filing of an appeal from the underlying criminal offense does not stay the Department's action of imposing a suspension under the Vehicle Code. See Zavodsky v. Department of Transportation, Bureau of Driver Licensing, 637 A.2d 673 (Pa. Cmwlth. 1994); Commonwealth of Pennsylvania v. Wolf, 632 A.2d 864 (1993); Budjnoski v. Department of Transportation, Bureau of Driver Licensing, 566 A.2d 936 (Pa. Cmwlth. 1989). 11. The undersigned spoke Attorney Markley regarding this matter and Attorney Markley indicated that he would be filing a response to the Department's Motion to Schedule. WHEREFORE, the Department respectfully requests that the matter be scheduled for hearing. Respectfully submitted, George H. abusk, Esquire Assistant Counsel Office of Chief Counsel Riverfront Office Center-3rd Floor 1101 South Front Street. Harrisburg, PA 17104-2516 (717) 787-2830 Dated: October 2, 2006 -DL-326 (9/95) CERTIFICATION DATE: September 27, 2005 I hereby certify that Janet L. Dolan, Acting Director of the Bureau of Driver Licensing of the Pennsylvania Department of Transportation, is the legal custodian of the Driver License records of the Pennsylvania Department of Transportation. As the Acting Director of the aforesaid Bureau, she has legal custody of the original or microfilm records which are reproduced in the attached certification. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID. ax/o&''40. Jdlzo? ALLEN D. BIEHLER, SECRETARY OF TRANSPORTATION I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND CORRECT CERTIFIED PHOTOSTATIC COPY OF: 1) Official notice of suspension dated & mailed 9/01/05, effective 10/06/05; 2) Report of the Clerk of Courts showing the conviction or acquittal of any violation of the Vehicle Code, of Cumberland County No. CP-21-CR-0002761-2004, 2004, date of violation 10/15/04, date of conviction 6/06/05, seal attached to original; and 3) Driving Record, seal attached as it appears in the file of the Defendant BRIAN D. SEMUTA, Operator's No.25775872, date of birth 9/17/81, in the Bureau of Driver Licensing, Harrisburg, Pennsylvania. CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9, 1976, P.L. 586, as amended, 42 Pa.C.S. §§6103 and 6109. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR AFORESAID. SEAL JANET L. DOLAN, ACTING DIRECTOR BUREAU OF DRIVER LICENSING 4C k*( COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: SEPTEMBER 01, 2005 BRIAN D SEMUTA WID # 052376122694483 001 901 ALLEN STREET PROCESSING DATE 08/25/2005 DRIVER LICENSE # 25775872 NEW CUMBERLAND PA 17070 DATE OF BIRTH 09/17/1981 Dear MR. SEMUTA: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 3804E2I of the Pennsylvania Vehicle Code. As a result of your 06/06/2005 conviction of violating Section 3802B of the Vehicle Code DUI BAC .10-<.16 on 10/15/2004: Your driving privilege is SUSPENDED for ,a period of 1 YZAR(S) effective 10/06/2005 at 12:01 a.m. Before PennDOT can restore your driving privilege, you must follow the instructions in this` letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefully. Even if you have served all the time on the suspension/revocation, we cannot restore your driving priv- ilege until all the requirements are satisfied. 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 10/06/2005. You may surrender these items before, 10/06/2005, 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 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. F 052376122694483 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 Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this 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. PRISON RELEASE REQUIREMENT The Court of CUMBERLAND CTY, Court Number 2761, 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 will not receive credit for this suspension/revocation or any additional suspension/ revocation until you complete your prison term and you have complied with the requirements listed in this letter. The Court must certify your com- pletion 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 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. 052376122694483 3. Follow the payment and mailing instructions on the back of the application. 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 the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, SEPTEMBER 01, 2005, 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 certi- fied copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 10/06/2005. Sincerely, 9?ja Z g vit) Janet L. Dolan, Acting Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/TO: INFORMATION (7:00 AM TO 9:00 PM) Department of Transportation IN STATE 1-800- 932-4600 Bureau of Driver Licensing OUT-OF-STATE 717- 391-6190 P.O. Box 68693 TDD IN STATE 1-800- 228-0676 Harrisburg, PA 17106-8693 TDD OUT-OF-STATE 717- 391-6191 REPORT OF THE CLERK OF COURTS SHOWING THE CONVICTION OR ACQUITTAL OF ? AMENDED REPORT ANY VIOLATION OF THE VEHICLE CODE ? DEFENDANT REQUESTS ADDRESS CHANGE Under Section 6323 of the Vehicle Code, it is mandatory that the Clerk of Courts report all violations of the Vehicle Code A C C DEFENDANT INFORMATION (TYPE OR PRINT CLEARLY) NAME SEX DATE OF BIRTH FIRST BRIAN MIDDLE DAVID LAST SEMUTA M MONTH 9 1 DAY 17 1 YEAR 1981 ADDRESS: (A P.O. Box Number may be used in addition to the actual address, but cannot be used as the only address.) 901 ALLEN STREET CITY STATE ZIP CODE SOCIAL SECURITY NUMBER NEW CUMBERLAND PA 17070 1 7 3 -1 61 21 - 121 61 41 1 DRIVER NUMBER STATE LICENSE PLATE NUMBER YEAR STATE _ Offense Occurred While Driving/Transporting 25775872 PA ? Commercial Vehicle ? Hazardous Material ? School Vehicle ? Other VIOLATION IN FORMATION - (The Vehicle Code - Act of June 17, 1976, P.L. 162 as amended) SECTION SUBSECTION/CLAUSE BLOOD ALCOHOL CONTENT Offense occurred in an active work zone? Officer submitted accident report? 3802 B** .129 YES ? NO ?X YES ? NO 0 DATE OF VIOLATION DATE OF CONVICTION (?) Box: ? DATE OF ACQUITTAL ? NOLLE PROSEQUI MONTH DAY YEAR MONTH DAY YEAR MONTH DAY YEAR 10 15 2004 6 6 2005 CHARGE VIOLATION COMMITTED DATE LICENSE OR ACKNOWLEDGEMENT WAS SURREN E D RED TO COURT OR DISTRICT ATTORNEY If speed violation, enter traveling speed (Check One) ? S MONTH DAY YEAR and legal speed: ummary ? F-Ungraded Q M-Ungraded DUI: High Rte of Alc (BAC.10 - .16) 2nd Off ? F1 ? M1 ?F2 ?M2 ? F3 ? M3 COURT INFORMATION COURT OF COMMON PLEAS COUNTY OF 21 NUMBER YEAR 2004 C P-21-C R-0002761-2004 OTN L 211544-4 SIGNATURE AND DATE CERTIFIED THE UNDERSIGNED CERTIFIES THAT THE FOREGOING IS A CERTIFIED RECORD OF A CONVICTION OR ACQUITTAL/NOLLE PROSEQUI SEAL car 25 Clerk of Courts Date Certified t ?tis? OR"D1rP§ARTAAE?J,I;?SE<!ONLY ??, ?'' C Send This Form To: Bureau of Driver Licensing, Clerk of Courts, P.O. Box 60037, Harrisburg, PA 17106-0037 E TREATMENT ORDERED (CHECK ONE) ? YES 0 NO F SENTENCING INFORMATION (check one) Defendant Sentenced to Prison 0 YES ? NO ? TIME SERVED (check one) Must (?) for sections 3802(A)(1) and 3802(A)(2) Was the defendant sentenced under Section 3804(a), Title 75 of the Vehicle Code? ? YES NO AOPC 2012 - 2005 REV. 0811712005 4(9 CPCMS Printed: 08/17/2005 9:11:53AM COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF WVVER LICENSING HARRISBURG. PENNSYLVANIA 17123 Date: September 27, 2005 CERTIFICATION STATEMENT In compliance with your request, I hereby certify that I have caused a search to be made of the files of the Department of Transportation, and herewith is a true record in the name of: BRIAN D. SEMUTA, 901 ALLEN STREET, NEW CUMBERLAND, PA 17070 OPERATOR NO.: 25775872 DATE OF BIRTH: 9/17181 CLASS OF LICENSE: TITLE NO.: PURPOSE OF REQUEST: Legal (R=INSURANCE, C=CREDIT, E=EMPLOYMENT, L=LEGAL, M=OTHER) DATE SECTION VIOLATION VIOLATION ACTION TAKEN BY DEPARTMENT 10/15/04 3802B DUI BAC.10-<.16 Official notice of suspension dated & mailed 9/01/05, effective 10/06/05 for one year. Appeal pending. In compliance wRn your request, I rwreoy ccrury uwt 11Iava wuacu a ? w w .,? , ?,a.,a w u ,c .nca v, u,c vc,.a+u..w.a v. .. o, ?r....,o.... , • .. • v......... w ..... the subject listed above. ACTING DIRECTOR, BUREAU OF DRIVER LICENSING Information requested by. tv COMMONWEALTH OF PENNSYLVANIA ss: DATE: September 27, 2005 I hereby certify that Janet L. Dolan, Acting Director of the Bureau of Driver Licensing of the Pennsylvania Department of Transportation, is the legal custodian of the Driver License records of the Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal custody of the original or microfilm records which are reproduced In the attached certification. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID SEAL SECRETARY OF TRANSPORTATION ?4 3 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PENNSYLVANIA 17123 Date: September 27, 2005 CERTIFICATION STATEMENT Nof a M. In compliance with your request, I hereby certify that I have caused a search to be made of the files of the Department of Transportation, and herewith is a true record in the name of: BRIAN D. SEMUTA, 901 ALLEN STREET, NEW CUMBERLAND, PA 17070 OPERATOR NO.: 25775872 DATE OF BIRTH: 9/17/81 CLASS OF LICENSE: TITLE NO.: PURPOSE OF REQUEST: Legal (R=INSURANCE, C=CREDIT, E=EMPLOYMENT, L=LEGAL, M=OTHER) DATE SECTION VIOLATION VIOLATION ACTION TAKEN BY DEPARTMENT 10/15/04 3802B DUI BAC.10-x.16 Official notice of suspension dated & mailed 9/01/05, effective 10/06/05 for one year. Appeal pending. In compliance wrtn your request, N nereoy cerury tnat I nave causes a seamn w ae maae or the ijmm or ute ueparment oT I ransponauon, ano nerewlul is a true record in u1e name or the subject listed above. ACTING DIRECTOR, BUREAU OF DRIVER LICENSING Information requested by. tv COMMONWEALTH OF PENNSYLVANIA ss: DATE: September 27, 2005 I hereby certify that Janet L. Dolan, Acting Director of the Bureau of Driver Licensing of the Pennsylvania Department of Transportation, is the legal custodian ofthe Driver License records of the Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal custody of the original or microfilm records which are reproduced in the attached certification. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID SEAL SECRETARY OF TRANSPORTATION PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING CERTIFIED DRIVING HISTORY SEP 21 2005 )RIVER: BRIAN D SEMUTA 901 ALLEN STREET NEW CUMBERLAND, PA 17070 DRIVER LICENSE (DL) LICENSE CLASS LICENSE ISSUE DATE: SEP 09 2005 LICENSE EXPIRES DRIG ISSUE DATE : OCT 18 1997 MED RESTRICTIONS : 1 LEARNER PERMITS LICENSE STATUS PEND SUSPEND PAGE 1 DRIVER LICENSE NO : 25775872 DATE OF BIRTH : SEP 17 1981 SEX : MALE RECORD TYPE : 4YR LIC/LP COMMERCIAL DRIVER LICENSE (CDL) CDL LICENSE CLASS . CDL LICENSE ISSUED : CDL LICENSE EXPIRES: CDL ENDORSEMENTS CDL RESTRICTIONS CDL LEARNER PERMITS: CDL LICENSE STATUS : A* SEP 09 2005 SEP 18 2009 N T NONE PEND SUSPEND SB ENDORSEMENT PROBATIONARY LICENSE (PL) PL LICENSE CLASS PL LICENSE ORIG ISS: PL LICENSE ISSUED : PL LICENSE EXPIRES : PL LICENSE STATUS : OCCUPATIONAL LIMITED LICENSE (OLL) OLL LICENSE CLASS : OLL LICENSE ISSUED : OLL LICENSE EXPIRES: OLL LICENSE STATUS : *** CONTINUED *** PAGE 2 CERTIFIED DRIVING HISTORY - SEP 21 2005 - LICENSE NUMBER 25775872 CONTINUED -------------------------------------------------------------------------- REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS ----------------------------------------------------------------------- JIOLATION DATE: DEC 31 2000 JIOLATION: VEHICLE CODE: 3362 DESCRIPTION: EXCEEDING MAXIMUM SPEED 070 MPH IN A 055 MPH ZONE CONVICTION DATE: JAN 10 2001 ACTION: ASSIGNED POINTS VIOLATION DATE: OCT 15 2004 VIOLATION: VEHICLE CODE: 3802B MAJOR VIOLATION DESCRIPTION: DUI BAC .10-<.16 CONVICTION DATE: JUN 06 2005 ACTION: SUSPENSION FOR 1 YEAR(S) EFFECTIVE MAR 08 2006 OFFICIAL NOTICE MAILED SEP 01 2005 ------------------------------------------------------------------------------- REPORT OF MEDICALS AND DEPARTMENTAL ACTIONS ------------------------------------------------------------------------------- NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD ------------------------------------------------------------------------------- REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS ------------------------------------------------------------------------------- *** CONTINUED *** PAGE 3 CERTIFIED DRIVING HISTORY - SEP 21 2005 - LICENSE NUMBER 25775872 CONTINUED IOTOR VEHICLE ACCIDENT RECORDS LISTED ON THIS OPERATING REPORT DO NOT INDICATE FAULT FOR THE ACCIDENT. THE RECORD ONLY INDICATES THAT THIS INDIVIDUAL OR THE INDIVIDUAL'S VEHICLE WAS INVOLVED IN AN ACCIDENT ON SHE DATE LISTED. kCCIDENT DATE: FEB 07 2000 LOCATION: YORK COUNTY VEHICLE TYPE: TRUCK *** END OF RECORD *** PAGE 4 CERTIFIED DRIVING HISTORY - SEP 21 2005 - LICENSE NUMBER 25775872 CONTINUED IN COMPLIANCE WITH YOUR REQUEST, I HEREBY CERTIFY THAT I HAVE CAUSED A SEARCH TO BE MADE OF THE FILES OF THE DEPART- MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED. SINCERELY, 9?-U? Z g et) ACTING DIRECTOR, BUREAU OF DRIVER LICENSING SEAL FOR SECRETARY OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA SS: DATE:SEP 21 2005 I HEREBY CERTIFY THAT JANET L. DOLAN, ACTING DIRECTOR OF THE BUREAU OF DRIVER LICENSING, OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION IS THE LEGAL CUSTODIAN OF THE DRIVER LICENSING RECORDS OF THE DEPARTMENT OF TRANSPORTATION. AS THE DIRECTOR OF THE AFORESAID BUREAU, SHE HAS LEGAL CUSTODY OF THE ORIGINAL OR MICROFILM RECORDS WHICH ARE THE SUBJECT OF THE ABOVE CERTIFICATION. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID. SINCERELY, a& 00 - A4k&, SECRETARY OF TRANSPORTATION SEAL Page 1 1 of 100 DOCUMENTS COMMONWEALTH OF PENNSYLVANIA, Appellee v. BRIAN DAVID SEMUTA, Appellant No. 1518 MDA 2005 SUPERIOR COURT OF PENNSYLVANIA 2006 PA Super 163; 902 A. 2d 1254; 2006 Pa. Super. LEXIS 1546 May 23, 2006, Submitted June 30, 2006, Filed PRIOR HISTORY: [***I] Appeal from the Judgment of Sentence of the Court of Common Pleas of Cumberland County, Criminal Divi- sion, No. CP-21-CR-2761-2004. Before BAYLEY, J. CASE SUMMARY: PROCEDURAL POSTURE: Defendant ap- pealed a judgment of sentence entered in the Court of Common Pleas of Cumberland County (Pennsylvania), after he was convicted of driv- ing under the influence of alcohol, high rate. Defendant argued, in part, that denial of both his omnibus pretrial motion and a motion in limine was error. OVERVIEW: Defendant was stopped after he was observed driving a vehicle after dark with- out the headlights on. Finding no error in the denial of the two motions, the court affirmed, holding that 1) the arresting officer's observa- tions of defendant's vehicle and defendant's condition after the traffic stop provided the necessary reasonable suspicion for administer- ing a 75 Pa. Cons. Stat. § 1547(k) breath test; 2) coupled with the results of that test, those factors provided probable cause for defendant's arrest under 75 Pa. Cons. Stat. § 3802; 3) § 3802 was neither vague nor overbroad and it did not encourage arbitrary or discriminatory enforcement; 5) as defendant had not been con- victed under 75 Pa. Cons. Stat. § 3804, he could not argue that the statute was vague or that its application violated due process; 6) there was no Sixth Amendment right to have counsel when deciding whether to submit to a blood alcohol content (BAC) test; and 7) a BAC test could be administered without obtain- ing a search warrant. OUTCOME: The judgment of sentence was affirmed. LexisNexis(R) Headnotes Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence Criminal Law & Procedure > Appeals > Stan- dards of Review > General Overview [HN1] An appellate court's standard of review in addressing a challenge to a trial court's de- nial of a suppression motion is limited to de- termining whether the factual findings are sup- ported by the record and whether the legal con- clusions drawn from those facts are correct. In cases of the prosecution prevailing in a sup- ?X *1? 2,- 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** pression court, the appellate court may consider only the evidence of the prosecution and so much of the evidence for the defense as re- mains uncontradicted when read in the context of the record as a whole. Where the record sup- ports the factual findings of the trial court, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Criminal Law & Procedure > Criminal Of- fenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobri- ety > General Overview [HN2] See 75 Pa. Cons. Stat. § 1547(k). Criminal Law & Procedure > Search & Sei- zure > Warrantless Searches > Investigative Stops [HN3] A police officer may detain an individ- ual in order to conduct an investigation where that officer reasonably suspects the individual is engaging in criminal conduct. This standard, known as reasonable suspicion, is less stringent than probable cause. Criminal Law & Procedure > Search & Sei- zure > Warrantless Searches > Investigative Stops [HN4] In order to determine whether a police officer had reasonable suspicion for an investi- gation, the totality of the circumstances must be considered. In making this determination, courts must give due weight to the specific rea- sonable inferences he police officer is entitled to draw from the facts in light of his experi- ence. Also, the totality of the circumstances test does not limit a court's inquiry to an examina- tion of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police offi- cer. Page 2 Criminal Law & Procedure > Arrests > Prob- able Cause [HN5] In determining whether probable cause to make an arrest exists in a given situation, a reviewing court will consider the totality of the circumstances presented to a police officer and not concentrate on each, individual element. Criminal Law & Procedure > Trials > Bench Trials Evidence > Procedural Considerations > Weight & Sufficiency [HN6] It is within the province of a trial judge, who has the opportunity to observe witnesses' credibility, to determine the weight to be ac- corded their testimony. Criminal Law & Procedure > Criminal Of- fenses > Vehicular Crimes > Driving Under the Influence > General Overview Governments > Legislation > Overbreadth Governments > Legislation > Vagueness [HN7] 75 Pa. Cons. Stat. § 3802 is not vague or overbroad in that it gives a person of ordi- nary intelligence notice that he may not drive after imbibing a sufficient amount of alcohol such that he is incapable of driving safely. The provision is not overbroad since it does not punish any constitutionally protected activity and an individual of ordinary intelligence who chooses to over imbibe and drive is certainly aware such conduct is prohibited. Criminal Law & Procedure > Criminal Of- fenses > Vehicular Crimes > Driving Under the Influence > Elements [HN8] The pertinent question under 75 Pa. Cons. Stat. § 3802(a)(2), (b), and (c), is what is an individual's blood alcohol content as deter- mined by a test taken within two hours of driv- ing? There is no constitutional, statutory or 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** common law right to the consumption of any quantity of alcohol before driving. Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation > Standing [HN9] While a defendant in an enforcement proceeding generally has standing to assert in his defense any claim, including the constitu- tionality of a statute, that challenges the author- ity of the state to impose its force upon him, he does not have standing to object to the constitu- tionality of a statute unless he is affected by the particular feature alleged to be in conflict with the constitution. Constitutional Law > Bill of Rights > Funda- mental Rights > Criminal Process > Assis- tance of Counsel Criminal Law & Procedure > Counsel > Right to Counsel > General Overview [HN10] The sixth amendment right to counsel attaches at critical stages of a criminal proceed- ing. The decision to submit to a blood alcohol content (BAC) test is not such a stage. Al- though the decision to submit to a BAC is an important, tactical one, it is made during an en- counter involving the gathering of evidence and does not affect the fairness of trial in the sense that a defendant will have the ability to have counsel's assistance in cross-examining wit- nesses and in planning trial strategy. Criminal Law & Procedure > Criminal Of- fenses > Vehicular Crimes > Driving Under the Influence > Blood Alcohol & Field Sobri- ety > General Overview Criminal Law & Procedure > Search & Sei- zure > Search Warrants > General Overview [HN 11 ] In cases where a driver may be under the influence of intoxicating substances: practi- cally speaking, seeking a search warrant, or other court order, is not a viable option since Page 3 the evidence of a person's blood alcohol con- tent (BAC) dissipates fairly rapidly and the act of seeking and obtaining a warrant/order will require a period of time during which the sus- pect's BAC will be in a state of flux and will eventually dissipate. COUNSEL: Marlin L. Markley, Jr., Camp Hill, for appellant. Jamie M. Keating, Assistant District Attorney, Carlisle, for Commonwealth, appellee. JUDGES: BEFORE: FORD ELLIOTT, P.J., STEVENS, and KELLY, JJ. OPINION BY STEVENS, J. OPINION BY: STEVENS OPINION: [**1255] OPINION BY STEVENS, J.: [*P 1 ] Following a non jury trial held on June 6, 2005, Appellant Brian David Semuta [**1256] was convicted of Driving Under the Influence of Alcohol, high rate. nl Appellant appeals from the judgment of sentence entered in the Court of Common Pleas of Cumberland County on August 16, 2005, n2 at which time Appellant was sentenced to a term of impris- onment of not less than thirty (30) days nor more than six (6) months, to pay the costs of prosecution and to pay a fine of $ 750.00. n3 We affirm. n1 75 Pa.C.S.A. § 3802(b) which re- fers to alcohol concentrations in an indi- vidual's blood or breath of at least 0.10 but less than 0.16 within two (2) hours after the individual has driven, operated, or been in actual physical control of the movement of the vehicle. n2 Appellant incorrectly indicates he is appealing from the judgment of sen- 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** tence as well as two prior orders, see in- fra. [***2] n3 Appellant's commitment to prison was deferred pending the perfection of a direct appeal to this Court within thirty (30) days of sentencing. [*P2] The salient facts and procedural his- tory in the instant matter are as follows: On January 31, 2005, Appellant filed an Omnibus Pretrial Motion for Relief in which he chal- lenged the propriety of the Horizontal Gaze Nystagmeus (HGN) Test administered to him, claimed evidence acquired through chemical testing violated his constitutional right to coun- sel, and argued the charge brought against him amounted to a violation of his substantive due process rights. On April 6, 2005, Appellant filed an Amended Omnibus Pretrial Motion for Relief in which he added a challenge to the breathalyzer test administered to him and al- leged it violated his right to be free from unrea- sonable searches and seizures under the Penn- sylvania and United States Constitutions. [*P3] On April 12, 2005, a hearing was held regarding Appellant's Omnibus Pretrial Motion. At that time, Patrolman Douglas L. Foltz testified that he was working for Lower Allen Township Police [***3] Department on October 15, 2004, was dressed in full uniform, and was on patrol in a fully-marked police car. N.T, 4/12/05, at 7. Officer Foltz had been driv- ing westbound on Letchworth Road and as he came around a bend in the road, he noticed a pickup truck without any headlights traveling closely behind a car. N.T, 4/12/05, at 7-8. Offi- cer Foltz flashed his high beams in an attempt to alert the driver of the truck to turn the head- lights on, to no avail. N.T, 4/12/05, at 8. Officer Foltz made a U-turn and followed the truck with his emergency lights and siren in opera- tion. Rather than stopping promptly in a safe, Page 4 grassy area, the truck continued through an in- tersection and stopped in a dangerous location along the bridge to Route 83. N.T, 4/12/05, at 8. Appellant effected the stop at one minute before midnight. N.T, 4/12/05, at 13. [*P4] Officer Foltz realized a male had been driving, and a female passenger, whom he later learned was Appellant's wife, was also in the truck. When he began speaking to Appel- lant, Officer Foltz noticed his eyes were glassy and bloodshot and detected an odor of an alco- holic beverage emanating from within the vehi- cle. N.T, 4/12/05, at 9. Appellant's [***4] shirt was unbuttoned, his face was flushed, and he had chewing tobacco in his lip. N.T, 4/12/05, at 9. [*P5] Appellant indicated he and his wife had been at Gullifty's, where he consumed two alcoholic drinks, and that just prior to the stop they had been at his in-laws. N.T, 4/12/05, at 10. Officer Foltz asked Appellant to step out of the vehicle and perform some standardized, field sobriety [**1257] tests. N.T, 4/12/05, at 10-11. At that time, Officer Foltz became aware the odor of alcoholic beverage emanated from Appellant. N.T, 4/12/05, at 11. [*P6] Officer Foltz asked Appellant to submit to the HGN walk and turn and one leg stand. N.T, 4/12/05, at 11. Appellant did not listen to the instructions prior to performing the walk and turn. N.T, 4/12/05, at 11. Also, Ap- pellant incorrectly raised his arms for balance during the one leg stand test. N.T, 4/12/05, at 12. Next, Appellant submitted to a preliminary breath test which registered Appellant had been drinking. N.T, 4/12/05, at 12. Officer Foltz placed Appellant under arrest and informed him the arrest was the result of his driving un- der the influence. N.T, 4/12/05, at 12. [*P7] Officer Foltz transported Appellant to [***5] the West Shore Booking Center and the two arrived at 12:29 a.m. N.T. 4/12/05, at 13. A twenty minute observation time began at 12:37 and ended at 12:57 a.m. N.T, 4/12/05, at 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** 14. During that time, Officer Foltz remained with Appellant, made sure Appellant did not have any substance in his mouth, and read him the chemical test warnings. N.T, 4/12/05, at 14. [*P8] When the observation period ex- pired, Appellant agreed to submit to the chemi- cal test and did not request the assistance of an attorney before he did so. N.T, 4/12/05, at 15- 16. Appellant received his Miranda n4 warn- ings from the booking center agent before Ap- pellant answered any questions. N.T, 4/12/05, at 16. n4 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). [*P9] Officer Foltz did not consider ob- taining a search warrant before seizing Appel- lant's breath or blood, in that in light of his training, he felt such was not necessary. N.T, 4/12/05, at 17. Even had Appellant refused the chemical testing, [***6] Officer Foltz probably would not have sought a search warrant, as he was instructed to do so only if there were a high BAC and in light of the results of the pre- liminary breath test, Officer Foltz would have been satisfied with a license suspension for Appellant. N.T, 4/12/05, at 19. [*P10] On April 28, 2005, the suppression court denied Appellant's Omnibus Pretrial Mo- tion. [*PI 1] On May 27, 2005, a non jury trial was held at which time testimony was heard regarding a motion in limine on the probable cause for arrest issue which had not been heard during the hearing on the omnibus pretrial mo- tion. Officer Foltz again presented testimony regarding his encounter with Appellant on Oc- tober 15, 2004. N.T., 5/27/05, at 5-46. In addi- tion, Officer Foltz indicated that the prelimi- nary breath test revealed a BAC for Appellant of .13 percent. N.T., 5/27/05, at 19. Officer Page 5 Foltz also acknowledged that such a test is not utilized to determine one's BAC, but, rather, is used as a tool to indicate whether one had con- sumed alcohol. N.T., 5/27/05, at 31. Officer Foltz had Appellant empty his mouth approxi- mately two minutes after the stop, and he ad- ministered the preliminary breathalyzer [***7] test approximately nine minutes later. N.T., 5/27/05, at 34. [*P12] Lauren E. Way testified she worked for the Cumberland County District Attorney's Office in the Central Processing De- partment. N.T., 5/27/05, at 46-47. Ms. Way in- dicated she was a trained, breath test operator for the Intoxilyzer 5000, and she also had train- ing to administer standardized field sobriety tests. N.T., [**1258] 5/27/05, at 47. As the office was busy that evening, Officer Foltz re- mained with Appellant while Ms. Way proc- essed other individuals. N.T., 5/27/05, at 49. [*P13] Ms. Way provided Appellant his audio and tape warnings and asked Appellant to submit to a breath test. Ms. Way conducted the test utilizing the Intoxilyzer 5000. N.T., 5/27/05, at 49-50. The breath sample revealed a BAC of .129 percent. N.T., 5/27/05, at 54. Af- ter conducting the test, Ms. Way read Appellant his Miranda warnings. N.T., 5/27/05, at 54. Appellant signed the sheet from which Ms. Way read the warnings and agreed to answer questions Ms. Way read from the intoxication report form. N.T., 5/27/05, at 55. [*P14] On June 6, 2005, the trial court de- nied Appellant's Motion to Suppress Evidence and found Appellant [***8] guilty of Driving Under the Influence of Alcohol, High Rate, in violation of the Vehicle Code at 75 Pa. C.S.A. § 3802(b). [*P15] On August 16, 2005, the sentenc- ing court sentenced Appellant to a term of im- prisonment of not less than thirty (30) days nor more than six (6) months and to pay the costs of prosecution and a fine of $ 750.00. 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** [*P16] On September 8, 2005, Appellant filed a timely notice of appeal, in which he stated he was appealing to this Court from the Order of Court dated April 28, 2005, the Order of Court dated June 6, 2005, and the Sentence imposed on August 16, 2005. [*P17] On September 12, the lower court ordered Appellant to file a concise statement of the matters complained of on appeal, and Ap- pellant filed the same on September 23, 2005. On October 27, 2005, the trial court filed its Opinion Pursuant to Rule 1925. n5 n5 Pa.R.A.P. 1925(a). [*P18] In his brief, Appellant raises the following issues for our review: [***9] (1) Whether the suppression court erred by considering the result of the preliminary breath test that was administered within nine (9) min- utes of [Appellant] having tobacco in his mouth. (2) Whether the suppression court erred in denying [Appellant's] Omnibus Pre-Trial Motion to Sup- press Evidence on the basis tht [sic] the police lacked probable cause to arrest. (3) Whether 75 Pa. C. S.A. § 3802 et al. violates the substantive due process guarantees of the United States and/or Pennsylvania Consti- tutions. (4) Whether [Appellant's] right to counsel under the United States and/or Pennsylvania Constitution was violated. (5) Whether the suppression court erred in denying [Appellant's] mo- tion to suppress the breath test re- sult when the breath sample was taken without a warrant, without voluntary consent, and without exigent circumstances. Brief for Appellant at 4. Page 6 [*P19] We will discuss each of these is- sues in turn and shall consider the first two to- gether. [*P20] Appellant contends Officer Fultz lacked probable cause to make an arrest, and the suppression court should have found the result of the [ * * * 10] preliminary breath test to be inadmissible, because Appellant was pro- vided the test within nine minutes of chewing tobacco and likely had residue from the tobacco in his mouth at the time [**1259] Officer Fultz administered the test. Brief for Appellant at 12. [*P21] When reviewing a trial court's de- nial of a suppression motion, this Court is bound by the following standard: [HN 1 ] [An appellate court's] stan- dard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the re- cord and whether the legal conclu- sions drawn from those facts are correct. Since the prosecution pre- vailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as re- mains uncontradicted when read in the context of the record as a whole. Where the record supports 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** the factual findings of the trial court, we are bound by those. facts and may reverse only if the legal conclusions drawn therefrom are in error.. Commonwealth v Stevenson, 2006 PA Super 38, 894 A. 2d 759, 769 (Pa. Super. 2006) (citing Commonwealth v Bomar, 573 Pa. 426, 445, 826 A. 2d 831, 842 (2003) [***11] (citations omitted in original)). [*P22] The Vehicle Code provides that: [HN2] (k) Prearrest breath test au- thorized--A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Depart- ment of Health for this purpose. The sole purpose of this prelimi- nary breath test is to assist the offi- cer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other re- quirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsec- tions (b) and (e). 75 Pa. C. S.A. § 1547(k). [*P23] [HN3] A police officer may detain an individual in order to conduct an investiga- tion where that officer reasonably suspects the Page 7 individual is engaging in criminal conduct. Commonwealth v Conrad, 2006 PA Super 8, 892 A.2d 826, 829 (Pa. Super. 2006) ( [***12] citing Commonwealth v Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999)). This standard, known as reasonable suspicion, is less stringent than probable cause. Id. [HN4] In order to determine whether the police officer had rea- sonable suspicion, the totality of the circumstances must be consid- ered. In making this determination, we must give 'due weight...to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his ex- perience.' Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indi- cate criminal conduct. Rather, 'even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.' Conrad 892 A. 2d at 829 (citations omitted). [*P24] Herein, prior to the time Officer Foltz asked Appellant to submit to a prelimi- nary breath test, he had observed Appellant driving a pick-up truck a considerable distance on a road at about midnight without his head- lights on. After stopping Appellant, Officer Foltz observed Appellant's flushed face and glassy eyes and [***13] noticed the odor of alcohol emanated [**1260] from the truck. In addition, Appellant admitted to having drunk two alcoholic beverages at Gullifty's, a local bar. Finally, Appellant had difficulty following directions, started too soon, and made an incor- 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** rect turn during a walk-and-turn test as well as lost his balance and raised his arms during a one-leg stand test. Taken together, we find these facts provided reasonable suspicion to Officer Foltz to believe Appellant had been driving his pick-up truck while under the influ- ence of alcohol and was incapable of safe driv- ing in violation of 75 Pa. C.S.A. § 3802. These factors, coupled with the result of Appellant's preliminary breath test, provided Officer Foltz with probable cause to arrest Appellant. [*P25] [HN5] In determining whether probable cause to make an arrest exists in a given situation, this Court will consider the to- tality of the circumstances presented to the po- lice officer and not concentrate on each, indi- vidual element. Commonwealth v. Wright, 2005 PA Super 35, 867 A.2d 1265, 1268 (Pa. Super. 2005). Moreover, [HN6] it is within the province of the trial judge, who had the oppor- tunity to [ * * * 14] observe the witnesses' credi- bility, to determine the weight to be accorded their testimony. Commonwealth v Gallagher, 2006 PA Super 66, 896 A. 2d 583, 584-585 (Pa. Super. 2006). [*P26] We find Appellant's assertion that the preliminary breath test results were flawed because he had tobacco in his mouth nine min- utes prior to its administration is immaterial and irrelevant to his ultimate arrest and convic- tion herein. Notably, the preliminary breath test results were nearly identical to those obtained from the Intoxilyzer 5000 following the twenty minute observation period. Moreover, unlike the results obtained from the Intoxilyzer 5000, the results obtained from the preliminary breath test served only as an aid to Officer Foltz in determining probable cause for arrest, and were not admissible evidence against Appellant. See Commonwealth v Myrtetus, 397 Pa. Super. 299, 580 A. 2d 42, 47 (Pa. Super. 1990). There- fore, the preliminary breath test results merely confirmed the officer's belief Appellant was driving after imbibing alcohol. Page 8 [*P27] Appellant next maintains that Sec- tion 3802 of the Vehicle Code is unconstitu- tional [***15] because it violates the substan- tive due process guarantees of the United States and/or Pennsylvania Constitutions. Specifi- cally, Appellant contends the law is vague and overbroad, "because it penalizes protected con- duct, and is drafted in such a way as to be am- biguous in meaning, leaving a reasonable per- son unsure as to what conduct is prohibited." n6 Brief for Appellant at 16. n6 Appellant was charged only with 75 Pa.C.S.A. § 3802 (a)(1) and 75 Pa. C.S.A. § 3802 (b), yet he challenges Section 3802 in its entirety. An individ- ual launching a constitutional challenge to a statute must be injured by it. He can- not challenge it in the abstract. Com- monwealth v Bell, 512 Pa. 334, 516 A.2d 1172 (1986). Appellant was not charged with each subsection of Section 3802; thus, we find he may not challenge all of it. See Commonwealth v Dodge, 287 Pa. Super. 148, 429 A.2d 1143, 1146 (Pa. Super. 1981)(providing that a de- fendant "does not have standing to object to the constitutionality of a statute unless he is affected by the particular feature al- leged to be in conflict with the constitu- tion"). [***16] [*P28] When considering a constitutional challenge to Section 3802 on the basis that it is vague, overbroad, and allows for arbitrary en- forcement in violation of substantive due proc- ess rights guaranteed under the Pennsylvania and United States Constitutions, this Court re- cently concluded that [HN7] this provision of the Vehicle Code is not vague or overbroad in that "[i] t gives a [**1261] person of ordinary intelligence notice that he may not drive after imbibing a sufficient amount of alcohol such that he is incapable of driving safely." Com- 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** monwealth v McCoy, 2006 PA Super 33, 895 A.2d 18, 31 (Pa. Super. 2006). We also deter- mined the provision is not overbroad since it does not punish any constitutionally protected activity and reasoned our Supreme Court has recognized that charts are widely available which indicate the amount of alcohol individu- als of varying weights may consume, and that an individual of ordinary intelligence who chooses to over imbibe and drive is certainly aware such conduct is prohibited. McCoy, 895 A. 2d at 32 (citing Commonwealth v. Mikulan, 504 Pa. 244, 252, 253, 470 A.2d 1339, 1343 (1983) [***17] (plurality)). As such, we find no merit in this claim. [*P29] Appellant also argues Section 3802 encourages arbitrary and discriminatory en- forcement and is overbroad in that an individ- ual can be found guilty of violating it without ever having driven at a time when his BAC was above 0.08%, because the statute punishes in- dividuals for the amount of alcohol measured in their blood up to two hours after they have driven. Brief for Appellant at 18-19. In recently dismissing a similar argument, this Court rea- soned such a contention is more akin to an over breadth challenge to the statute and stressed: ingly, Appellant's arguments in this regard must fail. Page 9 Commonwealth v. McCoy, 2006 PA Super 33, 895 A. 2d 18, 33 (Pa. Super. 2006) [ * * * 18 ] (ci- tation omitted) (emphasis in original). In light of this authority, we find this aspect of Appel- lant's third argument to be without merit. n7 n7 In his Brief, Appellant relies upon Commonwealth v Barud, 545 Pa. 297, 681 A.2d 162 (1996) and claims that as the Supreme Court examined the issue of vagueness and over breadth and found a similar statute to be unconstitutional on those grounds, that decision should con- trol herein. Nevertheless, this Court in McCoy, supra, noted that "[i] n the amended DUI law, Section 3802, the confusion caused by contradictory Sec- tions 3731(a)(4) and (a)(5) has been eliminated. Section 3802 no longer has a provision like 3731(a)(4). Thus we con- clude Barud is not controlling." Id. at 32. [*P30] In his brief, Appellant also asserts 75 Pa.C.S.A. § 3804 should be stricken as a violation of the due process clause of both the "that there is no longer a statutory United States and Pennsylvania Constitutions provision such as former because of its [***19] vagueness. The problem 3731(a)(4) which provides that a with this portion of Appellant's argument is that person may drive if his BAC is be- he was not convicted under this section. n8 low a particular BAC at the time of driving. Rather,[HN8] the perti- nent question under 3802(a)(2), (b), and (c), is 'what is the individ- [HN9] While a defendant in an en- ual's BAC as determined by a test forcement proceeding generally taken within two hours of driving?' has standing to assert in his de- Further, 'there is no constitutional, fense any claim, including the con- statutory or common law right to stitutionality of a statute, that chal- the consumption of any quantity of lenges the authority of the state to alcohol before driving.' Accord- impose its force upon him, he does 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** not have standing to object to the constitutionality of a statute unless he is affected by the particular fea- ture alleged to be in conflict with the constitution. [**1262] Commonwealth v Ciccola, 2006PA Super 23, 894 A. 2d 744, 747 (Pa. Super. 2006) (citing Commonwealth v Dodge, 287 Pa. Su- per. 148, 429 A.2d 1143, 1146 (Pa. Super. 1981)). Thus, we conclude that Appellant lacks standing to raise a challenge to the constitu- tionality of 75 Pa. C. S.A. § 3804 and therefore express no opinion as to the merits of this as- pect of his constitutional challenge. Id. n8 We note that while this section pertains to sentencing, it was not refer- enced during the sentencing proceeding, nor does Appellant specifically argue how a prior conviction of his pertains to this section. [***20] [*P31] Appellant next contends his right to counsel which is guaranteed under the United States and/or Pennsylvania Constitu- tions was violated as the "request for chemical testing is a post-arrest confrontation between the accused and the officer, whereby the ac- cused is required to make a decision of great legal consequence." Brief for Appellant at 24- 25. In Ciccola, supra, this Court addressed the issue of whether a person's sixth amendment right to counsel is violated if he has no right to consult with counsel before deciding to consent to a chemical test requested by a police officer. We acknowledged that [HN10] the sixth amendment right to counsel attaches at critical stages of a criminal proceeding and concluded that the decision to submit to a BAC test is not such a stage. Ciccola, 894 A. 2d at 749-750 (Pa. Super. 2006). We reasoned that although the Page 10 decision to submit to a BAC is an important, tactical one, it is made during an encounter in- volving the gathering of evidence and does not affect the fairness of trial in the sense that a de- fendant will have the ability to have counsel's assistance in cross-examining witnesses [***21] and in planning trial strategy. Id. Thus, we concluded the decision to submit to a BAC was not a critical proceeding for the pur- pose of the right to counsel. Id. See McCoy, 895 A.2d at 28. Thus, in light of the aforemen- tioned authority, we find Appellant is not enti- tled to relief on this basis. [*P32] Finally, Appellant contends the suppression court erred in denying his motion to suppress the breath test result as the breath sample was taken without a warrant, without voluntary consent, and without exigent circum- stances. This Court has determined that [HN 11 ] in cases where a driver may be under the influ- ence of intoxicating substances: [p] ractically speaking, seeking a search warrant, or other court or- der, is not a viable option since the evidence of a person's BAC dissi- pates fairly rapidly and the act of seeking and obtaining a war- rant/order will require a period of time during which the suspect's BAC will be in a state of flux and will eventually dissipate. Ciccola, 894 A. 2d at 747. [*P33] Even were this not the case, we find Appellant did voluntary consent to the breath test. Officer Foltz [***22] testified he read a copy of the chemical test warnings to Appellant, after which Appellant signed the same. N.T., 4/12/05, at 15. After indicating in 2006 PA Super 163, *; 902 A.2d 1254, **; 2006 Pa. Super. LEXIS 1546, *** writing that he was advised of the chemical test warnings, Appellant then verbally stated he would submit to a chemical breath test. N.T., 4/12/05, at 15. Appellant did not request the assistance of a lawyer at any time prior to the test. N.T., 4/12/05, at 15. [*P34] Also, Ms. Way indicated that after she administered the breath test, she read Ap- pellant his Miranda warnings. Both she and Appellant signed the sheet from which the au- dio visual warnings and Miranda warnings are Page 11 read. N.T., 5/27/05, at 54. Thereafter, Appellant agreed to answer the questions on the intoxica- tion report form. N.T., 5/27/05, at 55. [*P35] In light of the foregoing, we find the suppression court did not err in denying Appellant's Omnibus Pretrial Motion and his Motion in Limine. Furthermore, [**1263] we also find there were no constitutional violations under the circumstances of the instant case. [*P36] Judgment of sentence affirmed. BRIAN D. SEMUTA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-4807 LICENSE SUSPENSION APPEAL VERIFICATION I verify that the statements made in the Motion to Schedule Matter for Hearing are true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. f ??C 0 George H. Kabusk Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: October 2, 2006 BRIAN D. SEMUTA, PETITIONER V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2005-4807 COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION BUREAU OF DRIVER LICENSING, APPEAL RESPONDENT CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Motion to Schedule Matter for Hearing upon the person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania Rules of Civil Procedure: By first class mail, prepaid, addressed to: Marling L. Markley, Esquire 2108 Market Street Camp Hill, Pennsylvania 17011 L.r ? U 4?? George H. K4busk Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 DATE: October 2, 2006 ("°, ?.'.> i `? '? E ? .? ?; ? - ,_t 3 :.} ..,-; ;'3 ;? ? ?'? _. `? :.( BRIAN D. SEMUTA, PETITIONER V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT 05-4807 CIVIL TERM ORDER OF COURT AND NOW, this day of October, 2006, a hearing on the with matter shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:45 p.m., Monday, January 22, 2007. * arlin L. Markley, Esquire For Petitioner e,deorge Kabusk, Esquire For the Department of Transportation sal i 6.b la ? -b By the Edgar B. Bayley, J. } gt?l!?t BRIAN D. SEMUTA, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION,: BUREAU OF DRIVER LICENSING, . Respondent NO. 05-4807 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of January, 2007, this matter is continued until the disposition of the current petition for review filed by defendant in the Supreme Court of Pennsylvania from the affirmance of his conviction in the Superior Court for driving under the influence. Counsel for defendant is directed within five days of receipt of any order issued by the Supreme Court of Pennsylvania in the matter to notify counsel for the Department. By the`Court Edgar B. Bayley, J. George H. Kabusk, Esquire For the Department of Transportation Marlin L. Markley, Esquire For Petitioner prs ?- q t ^. t C\i rte` V BRIAN D. SEMUTA, : IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA V. NO.: 05-4807 CIVIL COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, : APPEAL OF OPERATORS LICENSE BUREAU OF DRIVER LICENSING, : SUSPENSION Appellee TO THE PROTHONOTARY: Kindly withdraw the appeal of operator's license suspension that was filed on September 15, 2005, for the above-captioned case. The Parties agree that a license suspension appeal hearing is no longer needed. Respectfully Marlin L. M , Esquire Law Offic s of atrick F. Lauer, Jr., LLC 2108 Market treet, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 84745 Tel. (717) 763-1800 Date: November 14, 2007 Distribution: -PA Dept. of Transportation, Office of Chief Counsel, George H. Kabusk, Esq., Third Floor, Riverfront Office Center, Harrisburg, PA 17104 -Marlin L. Markley, Esq., 2108 Market St., Camp Hill, PA 17011 -Brian Semuta, 901 Allen Street, New Cumberland, PA 17070 -Judge Edgar B. Bayley, Cumberland County Courthouse, 1 Courthouse Square, Carlisle, PA 17013 n ? FI Z T C + Z k?o