HomeMy WebLinkAbout01-5452SONIA R. BIXLER
Petitioner
V,
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Respondent
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:.o. o - q6-g
LICENSE SUSPENSION APPEAL
AND NOW, this /"'/*#~ day of September, 2001, comes Sonia R. Bixler, through her
attorneys, Mancke, Wagner, Hershey & Tully, who respectfully represent:
1. Your Petitioner is an adult individual residing at 35 West Factory Street, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Your Petitioner received notice of a license suspension for an alleged refusal to submit
to chemical testing arising out of an incident that occurred on or about July 14, 2001 in
Cumberland County, Pennsylvania which is attached hereto and made a part hereof as Exhibit
A.
3. Your Petitioner believes, and therefore avers, that said license suspension is illegal,
unjust and improper for reasons which include, but are not limited to:
a. there was no valid refusal;
b. Your Petitioner was inadequately advised of consequences for
any alleged failure to submit to chemical testing;
c. any wamings cenceming the alleged refusal and consequences
related thereto were not given in a timely fashion;
d. any required warnings and advice pursuant to {}1547 were not
given by a police officer in a timely and proper fashion;
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
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:
Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 1710&-8695
2. Upon receipt, review and acceptance of your PennsYlvania
driver's license(s), learner's Permit(s), and/ar a sworn
notarized letter, PennDOT will send you a receipt
confirming the date that credit began. If you do not
receive 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
Products, we must refer this matter to the Pennsylvania
State Police for Prosecution under SECTION 1571(a)(A)
of the Pennsylvania Vehicle Code.
PAYING THE RESTORATION FEF
You must pay a restoration fee to PennDOT to be restored
from a suspension/revocation of your driving Privilege. To
Pay your restoration fee, complete the following steps:
1. Return the enclosed APPlication for Restoration. The
amount due is listed on the application.
2. Write your driver's license number (listed on the first
page) on the check or money order to ensure proper
credit.
3. Follow the Payment and mailing instructions on the back
of the application.
01229~102153932
APPEAL.
You have the right to appeal this act/on to the Court of
Common Pleas (Civil Division) within S0 days of the mail
date, AUGUST 2~, 2001, of this letter. Zf You file an appeal
in the County Court, the Court w111 give you a time-stamped
certif$ed copy of the appeal. In order for your appeal to
be valid, You must send this time-stamped certified copy of
the appeal by certified ma~! to:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 1710q-251&
Remember, this is an OFFICZAL NOTICE OF SUSPENSZON. You
must return all current Pennsylvania driver license products
to PennDOT by 09/28/2001o
Rebecca L. Bickley, Director
Bureau of Driver Licensing
INFORMATION 7:00 a.m. to 9:00 p.m.
IN STATE 1-800-952-~&00 TDD IN STATE
OUT-OF-STATE 717-591-6190 TDD OUT-OF-STATE
WEB SITE ADDRESS www.dot.state.pa.us
1-800-228-0&7&
717-391-6191
I hereby verify that the statements made in this document are true and
correct, understand that false statements herein are made subject to the penalties of 18
Pa.C.S. Section 4904, relating to unsworn falsification to authorities.
Date
SONIA R. BIXLER
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Respondent
AND NOW, this ~:~day of ~ ,2001, upon consideration of the
within Petition, it is hereby ordered and decreed that a hearing be held on the ~ day of
~ , 2001, at ~',~ o'clock in Courtroom o~-, Cumberland County
Courthouse, Carlisle, Pennsylvania.
Notice of said headng shall be sent by certified mail to the Department of Transportation
by Petitioner's attorney at least sixty days prior to the date of the hTng.
SONIA R. BIXLER
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-5452 CIVIL
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
Respondent
AND NOW, this ~ day of ~, 2001, it is hereby ordered and
decreed that the headng scheduled for December 17, 2001 at 2:30 pm is continued to February
4, 2002 at 2:15 pm in Courtroom No. 2, Cumberland County Courthouse, Carlisle, Pennsylvania.
Notice of said headng shall be sent by certified mail to the Department of Transportation
by Petitioner's attorney at least sixty days prior to the date of the headng.
Z~':,E' i~!d 9.0.2010
SONIA R, BIXLER,
PETITIONER
IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
RESPONDENT
: 01-5452 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE
AND NOW, this
suspension of a driving privilege, IS DISMISSED.
Edgar B.
day of February, 2002, the appeal from the
B. Mancke, Esquire
For Petitioner
~yley, J.
eorge H. Kabusk,
~Fo~r Respondent Esquire
:saa
~q ,,,'33
SONIA R. BIXLER,
PETITIONER
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
TRANSPORTATION,
RESPONDENT : 01-5452 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVlLEGF
OPINION AND ORDER OF COURT
Bayley, J., February Il, 2002:--
Petitioner, Sonia Bixler, filed this appeal from the suspension of her driving
privilege for one year for failure to compete a test of her breath following her arrest for
operating a motor vehicle while under the influence of alcohol. A hearing was
conducted on February 4, 2002. We find the following facts.
On July 14, 2001, Trooper Keir Dissinger of the Pennsylvania State Police,
arrested petitioner for driving under the influence of alcohol on Interstate 81 in
Cumberland County. Trooper Dissinger took petitioner to a booking center, where he
read to her the following warnings:
1. Please be advised that you are now under arrest for driving under the
influence of alcohol or a controlled substance pursuant to section 3731 of
the Vehicle Code.
2. I am requesting that you submit to a chemical test of BREATH.
3. It is my duty, as a police officer, to inform you that if you refuse to
submit to the chemical test your operating privilege will be suspended for
a period of one year.
4. a) The constitutional rights you have as a criminal defendant,
commonly known as the Miranda Rights, including the right to
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
01-5452 CIVIL TERM
speak with a lawyer and the right to remain silent, apply only to
criminal prosecutions and do not apply to the chemical testing
procedure under Pennsylvania's Implied Consent Law, which is a
civil, not a criminal proceeding.
b) You have no right to speak to a lawyer, or anyone else, before
taking the chemical test requested by the police officer nor do you
have a right to remain silent when asked by the police officer to
submit to the chemical test. Unless you agree to submit to the test
requested by the police officer your conduct will be deemed to be
refusal and your operating privilege will be suspended for one year.
c) Your refusal to submit to chemical testing under the Implied
Consent Law may be introduced into evidence in a criminal
prosecution for driving while under the influence of alcohol or a
controlled substance.
Petitioner signed the form on which these warnings were written acknowledging
that she had been so advised. Trooper Dissinger then turned petitioner over to a
booking agent, David Heckard. After observing defendant for twenty minutes, Agent
Heckard started to conduct a test of petitioner's breath on an Intoxilyzer 5000. The
certified unit was calibrated and working properly. In a procedure that was videotaped,
petitioner was told that she would have to give two breath samples. She was instructed
to make a tight seal around the end of the mouthpiece, and blow into it until she was
told to stop. Petitioner took the mouthpiece at 2:19 a.m., and started to blow. She did
not blow enough air into it to register even one beep on the machine. She was
repeatedly instructed on how to blow a sufficient amount of air into the machine. After
blowing five separate times, and not registering any air into the machine, Officer
Heckard read her the same warnings as had Trooper Dissinger. Petitioner asked
Officer Heckard how many times she had to blow into the machine. He told her that he
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01-5452 CIVIL TERM
could already have deemed a refusal, but that he was going to "give her another shot."
Officer Heckard had petitioner blow four more times into the mouthpiece, none of which
registered any air into the machine. During this period, he again repeatedly instructed
her on how to blow air into the machine sufficient to register a valid breath test. At 2:37
a.m., Officer Heckard told petitioner that he deemed her conduct a refusal to take a
breath test.
Section 1547(b)(1) of the Vehicle Code, provides:
If any person placed under arrest for a violation of section
373'1 (relating to driving under influence of alcohol or controlled
substance) is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by the police
officer, the department shall suspend the operating privilege of the
person for a period of 12 months. (Emphasis added.)
The regulations of the Department of Transportation at 67 Pa. Code § 77.24(b)
include:
The procedures for alcohol breath testing shall include, at a minimum: (1)
Two consecutive actual breath tests, without required waiting period
between the two tests.
The failure to perform two tests as required by this regulation warrants the
suspension of an operator's driving privilege under Section 1547(b)(1) of the Vehicle
Code. Commonwealth, Department of Transportation v. Schraf, 135 Pa. Commw.
246 (1990). In Pappas v. Commonwealth Department of Transportation, 669 A.2d
504 (Pa. Commw. 1996), the Commonwealth Court of Pennsylvania stated:
In order to establish a prima facie case in support of a Section
1547(b) license suspension, DOT must prove inter alia, that the licensee
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01-5452 CIVIL TERM
refused to submit to chemical testing. DOT need not establish that the
licensee objected to taking the test. Yi v. Department of Transportation,
Bureau of DfiverLicensing, 164 Pa. Cmwlth. 275, 642 A.2d 625 (1995). 'It
is well established law that where a defendant, when taking a
breathalyzer test, does not exert a total conscious effort, and thereby
fails to supply a sufficient breath sample, such is tantamount to a
refusal to take the test.' Appeal of Budd, 65 Pa. Cmwlth. 314, 442 A.2d
404, 406 (1982). Even a licensee's good faith attempt to comply with the
test constitutes a refusal where the licensee fails to supply a sufficient
breath sample. Yi.
A refusal is supported by substantial evidence where the
breathalyzer administrator testifies that the licensee did not provide
sufficient breath. See Mueller v. Department of Transportation, Bureau
of Driver Licensing, 657 A.2d 90 (Pa. Cmwlth.), petition for allowance of
appeal denied, 542 Pa. 637, 665 ^.2d 471 (1995) (officer's testimony that
licensee did not make a 'proper effort' was sufficient to meet DOT's
burden regarding refusal); Books v. Department of Transportation, Bureau
of Driver Licensing, 109 Pa. Cmwlth. 25, 530 A.2d 972 (1987) (officer's
testimony that licensee did not provide sufficient breath and stopped
blowing as soon as he saw the machine register was sufficient to
meet DOT's burden); Budd (officer's testimony that licensee failed to
tighten his lips around the mouthpiece of the breathalyzer was
sufficient to prove refusal) .... IDIOT may establish refusal under
these circumstances by presenting a printout form from a properly
calibrated breathalyzer indicating a 'deficient sample.' Department of
Transportation, Bureau of Driver Licensing v. Lohner, 155 Pa. Cmwlth.
185, 624 A.2d 792 (1993); Pestock. In this situation, proper calibration
may be proven by either documentary or testimonial evidence. See
Lohner (calibration established by stipulation); Pestock (calibration
established by testimony of administering officer); see also 67 Pa. Code§
77.25(c) ('The certificate of accuracy shall be the presumptive evidence of
accuracy referred to in 75 Pa.C.S. § 1547 (relating to chemical testing to
determine amount of alcohol or controlled substance).').
Once DOT has presented evidence that the licensee failed to
provide sufficient breath samples, refusal ia presumed and the
burden of proof then shifts to the licensee to establish by competent
medical evidence that he or she was physically unable to perform
the test. Pestock. (Emphasis added.)
In the case sub judice, petitioner, after being warned of the consequences of
01-5452 CIVIL TERM
refusing to submit to a test of her breath, failed to provide sufficient breath into an
Intoxilyzer 5000 to register even one test. After being warned again of the
consequences of refusing to give a sufficient breath sample to conduct a valid test,
petitioner again failed to blow a sufficient amount of air into the machine to register
even one test. Two test tickets were printed out, each registering a deficient air
sample. Trooper Heckard then deemed that there was a test refusal. Not only did
petitioner fail to provide a sufficient sample of breath to register two valid tests, it is
obvious from looking at the videotape, that she made no good faith effort to comply.
She has presented no medical evidence that she was physically unable to perform a
test. Accordingly, the following order is entered.
AND NOW, this %%'~- day of February, 2002, the appeal from the
suspension of a driving privilege, IS DISMISSED. ~
B/~v~'~e Co~,///'~
Edgar B. B~yle~, J.
John B. Mancke, Esquire
For Petitioner
George H. Kabusk, Esquire
For Respondent
:sea
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