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HomeMy WebLinkAbout06-2956 v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA 0(,' o19S~ ~-c....- : NO. DOUGLAS E. DONLEY Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent UCENSE SUSPENSION APPEAL AND NOW, this 22nd day of May, 2006, comes Petitioner Douglas E. Donley, through his attomeys, Mancke, Wagner & Spreha, who respectfully represent: 1. Petitioner Douglas E. Donley is an adult individual residing at 116 Red Haven Road, New Cumberland, Pennsylvania and is a licensed Pennsylvania motor vehicle operator. 2. The occurrences allegedly giving rise to the suspension hereinafter occurred on or about March 3, 2006 in Lemoyne, Pennsylvania. 3. Petitioner has received notice of an 12-month suspension as authorized by Section '154 7BII' and a copy of said license suspension notice is attached hereto and made a part hereof as Exhibit A. 4. 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, ~3802 and S38Q2(a)(1), facially and as applied to the Petitioner, are in violation of the State and Federal Constitutions; d. any alleged refusal would violate equal protection of the laws in violation of the State and Federal Constitutions; e. Petitioner was not properly advised, was misadvised and/or not timely advised of his rights and/or obligations to submit to chemical testing; f. the wamings failed to comply with Act 177 of 2004,75 Pa.C.S.A. ~1547(b)(ii); g. 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; h. 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; i. 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; j. ~1547, ~2 and/or ~2(a)(1) 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 faciaDy and as applied to the Petitioner and as impennissibly delegating a legislative function to the judicialy in violation of the Pa. and U.S. Constitutions. (Ii) Act 24 of 2003, Chapter 38, ~2 and/or ~1547 and their related provisions violate procedural due process under Articte I, ~9 of the 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, ~2 and/or ~ 1547 and their related provisions violate equal protection guaranteed by the State and Federal Constitutions, faciaDyand as applied to the Petitioner, in that they treat similarly situated persons differenUy and such different treatment is not ralionaDy related to the protection of the public from intoxicated drivers. (iv) The Petitioner was advised that there was no right to an attomey at the time of a request for the chemical test or refused such right then such action violates the Oefendanfs 6th Amendment (U.S. Constitution) and Article I, ~9 (pa. Constitution) right to counsel, faciaDy and as applied to the motorist. (v) 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. Constitutioll and Articte I, 99 of the Pa. Constitutioll. WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to detennine the validity of the license suspension ouUined in Exhibit A. 2 Dated: ~/o (p R John B. ancke, Esq., 10 No. 07212 Mancke, agner & Spreha 2233 N. Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for Pelilioner 3 , . 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. "'" t;f-~ ()1,~r!W~ Douglas E. Donley ~R~ ~ -..... ....j c;.q, \-1 ~ \ --- 0, ~ ~ (') c < ,.., .,-..0 ~ CT' :Y: J..'''' -..: N VJ ~ :r!-n Tl1p :'~1,?4 ."k"'1" :31~":) ;.~~-~ t;r-n --~I ._~ ::Q '-< ~:: 5 tfI -' , .. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: MAY 03. 2006 DOUGLAS ELWOOD DONLEY 11b RE>> HAVEN RD NEW CUMBERLAND PA 17070 1rII>> t P~OCESS ])RIVER DATE OF bl1bb117844148 001 NG DATE 04/26/20D6 ICENSE. 1~69D39b BIRTH 10/D7/1962 This is an o~~~c~a~ No~~ce o~ ~e Suspens~on of your Driving Privilege as authorized by Section 154 BI1 of the Pennsylvania Vehicle Code. As a result of our violation of Section 1547 of the Vehicle Code, CHEMICAL TeST REFUSAL, on 03/04/2006: . Your driving crivilege is SUSPENDED 1ar YEAR(S> effective 06/07/2006 at 12:01 a.m period of 1 COMPLYING WITH THIS SUSPENSION You must re~Urn all curren~ PennsYlvania driver's licenses, learner's permits, temporary driver's lice ses (camera cards) in your possession on or before 06/01/2 06. You mall' surrender these items before, 06/07/2006. for earlier credit; however, YOU may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR I ENTIFICATION PURPOSES. However. YOU may applY for and ob ain a photo identification card at any Driver License Cent r for a cost of $10.00. You must Present two (2) forms of proper iden- T-; 1'; ..'" +; ,,,,. . (e 9 ....__b.i~..c."*f i ea-t:-e->.--va l' r , marriage certificate, etc.> in order to obtai your photo identification card. You will not receive credit toward serving an until we rec:e:!.ve YOUI' licensees). Complete t steps to acknowledge this suspension. suspension e fallowing 1. Return all current Pennsylvania driver' 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 S sPension of your driVing privilege. Vou must specifY in your letter why you are unable to return lIaur dri ver s li.cense. Remember: You may not retain your driver's license for identification purposes. Please send these items to: PennsYlvania Department of Tra sportation ~ EXHIBrr ~It ! . D61166117844148 2. Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 Upon receipt, review and acceptance of YO driver's license(s), learner's Permit(S), notarized letter, PennDOT will send YOU firming the date that credit began. If ceive a receipt from us within 3 weeks, our. office. Otherwise, YOU will not b ,. tOW"'1 ~ ~~r "~H!I 1I,.,;,~ ~"'~"'15n.:ri~. r Pennsylvania and/or a sworn receipt con- au do not re- lease contact .given credit ne numaer-s 3. are listed at the end of this latter. If you do not return all current drive ducts, we must. refer this matter to th state Police far prosecution under SECT of the Pennsylvania Vehicle Code. license pro- Pennsylvania ON 1571 (a) (4) PAYING THE RESTORATION FEE You must pay a restoration fee to PennOOT t be restored from a suspension/revocation of your driving rivilege. To pay your restoration fee, complete th~ follow'ng steps: 1. Return the enclosed ApDlication for Rest ration. The amount due is listed on the application. 2. Write Your driver's license number (listed an the first page) on the check or money order to nsure proper credit. 3. Follow the payment and mailing instruction on the back of the application. APPI"AI You have the right to appeal this action to hI! Court of Common PJ.eas (Civil. Division) within 30 clays of the mail date, MAV 03, 2006, of this letter. If YOU f"le an appeal in the County Cou~t. the court will give you a time-stamped ce~tified copy cf the appeal. In order for y ur appeal to be valid, YOU must send this time-stamped cert-fied CODY 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 OFFIC:IAL NOTICE OF SUSP HSIeN. You must return all current PennsYlvania driver lice se products to PennOOT by 06/01/2006. , 061166117844148 Sincerely, iJrefl/1J Janet L. Dola , Director Bureau of Dri er Licensing INFORMAT N 8:00 a.m. to 6:00 !R STAT~L-800-932-4600 TDD IN STA E 1-800-228-0676 OUT-OF-STATE 717-412-5300 TOO OUT-OF STATE 717-412-5380 WEB SITE ADDRESS www.dmv.state.pa.us L '. . I RECE\VEO MAY 2 31tQi i -.1 DOUGLAS E. DONLEY Petitioner : IN THE COURT OF C~~~S : CUMBERLAND CO NTY. PENNSYLVANIA : NO. Dr., - q S(; (!'u/I ( v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this.3 \srdaYOf ~ .2006, upon co sideralion of the within Petition, it is hereby ordered and decreed that a hearing be held on the 1 '!t,day of , 2006, . p."'-.. ato't.3D o'clock in Courtroom A-, Cumbel1and County Courthouse, Carr ,Pennsylvania. Notice of said healing shall be sent by certified mail to the Department fTransportation by Petitioner's attomey at least sixty days prior to the date of the hearing. By the Court, J. Distribution: Prothonotary's Office John B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110 PA Dept. of Transportation, Office of Chief Counsel, 1101 S. Front Street, 0') arrisburg, PA 17104 ~ {, (,_ /_ 0 ~ , ' ,I V:';' ~L//\~l)._r)\h}j(l I "I';'. .."""("'"1 ^,U\i,,;' ,_:J,'\jj Iv 9Z : II H~ I 8 A lJl~ 90DZ .u'-'w.... 'll~'" 'Hi:lO AWll.I,.\....)1 "'''.''-:4_",<J(,] :, ?:Y:! :!O-{J3lU - DOUGLAS E. DONLEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant NO. 06-2956 CIVIL TERM IN RE: CONTINUANCE ORDER OF COURT AND NOW, this 7th day of August, 2006, upon motion of the Petitioner to continue hearing in this matter and with the concurrence of the Commonwealth, the request for continuance is granted and the matter will be reset for hearing for August 6th, 2007, at 2:00 p.m. By the Court, ,~ ~ ~ ~ ~ \ i 1 ./ \ \ilN\fAlASNN3d MNnm OtNl~jj8!fino 61 :01 W\I 6- gOV 9DOZ AlN10NOH.LO\:ld 3Hl. :10 D:l:I0-0?l19 DOUGLAS E. DONLEY Petitioner v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2956 CIVIL TERM PRAECIPE TO WITHDRAW To the Prothonotary: Please withdraw the above-captioned licen suspension appeal. Dated: J -rJfl,-O 1 John B. eke, Esq., ID No. 07212 Mancke, ner, Spreha & McQuillan 2233 N. F nt Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner o c: ~i~ C~ ' ,...,., c::::o = ........ C- P ::it: ~ -.{ :J:" rnp:: -om ~3~)) ]~~ -.-t )> ::.0 -< N 0"\ ::tn ...,.,. -"'- \.0 ~ DOUGLAS E. DONLEY PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, DEFENDANT : NO. 06-2956 CIVIL ORDER OF COURT AND NOW, this 30th day of January, 2007, upon consideration of the Praecipe to Withdraw the License Suspension Appeal filed by the Attorney for the Plaintiff, the Appeal is deemed WITHDRAWN. The hearing previously scheduled for August 6, 2007 at 2:00 p.m. is CANCELLED. By the Court, ,~~ J. M. L. Ebert, Jr., John B. Mancke, Esquire Attorney for Plaintiff George H. Kabusk, Esquire Attorney for Penn Dot ~ ~ 1-3D,O? Cf- bas ilJJ\~r'j', 9 {) :2 !,:ld 08 ~,lVr LOilZ