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Home My WebLink About02-3387)Z~/;',", ~::>, ~"-¢-~(~¢ Appellant VS. Commonwealth of Pennsylvania Department of Transportation Appellee :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA File No.. ~;~-. (...DE_~NIAL OF DRIVER'S LICENSE J,-~OSPENSION OF-MOTOR VEHICLE R~GIST~A'I:ION 1. Appellant herein is residing at and having a m~.iling address of: .~Z.I 2. Appellee herein i~ the Department of Transportation of the Commonwealth of Pennsylvania, having a mai lng address of: /~' Department of Transportation, Bureau of Driver Licensing, Harrisburg, Pennsylvania 17123. Departme.~t of Transportation, Bureau of Motor Vehicles, Harrisburg, Pennsylvania 17123. 3. By letter or notice dated ~-v.~-! i-1 ; 2.o0'z_ , a copy of which is attached hereto as Exhibit A, the Department of Transportation ~' ordered Appellant to surrender his / her operating license / motor vehicle registration for a period of denied the i~suance / renewal of a driver's license. 4. Supersedeas: ~ Pursuant to 75 Pa.C.S.A. § 1550(b)(1)(i), Appellant is retainin.~l driver's licen,,.e until final determination of the suspension of operating privilege. Pursuant to 75 Pa.C.S.A. § 1550(b)(1)(ii), a hearing attended by the Apl~e~lant must be held before the Court of Common Pleas' before an order of supe:sedeas can be issued. Pursuant to 75 Pa.C.S.A. § 1377(a), Appellant is retaining motor vehicle regis .ration until final determination of the suspension of'registration. 5. The said suspension of Appellant's operating privileges / regis',:ration is impr, per or unlawful for the following reasons: Appellant respectfully requests that this matter be set down for a hearing and that the c,'der of suspension / order of denial be set aside. Respectfully submitted by, -2- I verify that the statements made in this Petition are true and correct. I unde:'stand that false statements herein are made subject to the penalties of 18 Pa.C S.A. § 4904, relating to unsworn falsification to authorities. -3- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: JUNE 17, 2002 KEVIN DOUGLAS TAYLOR WID ~ 021616111876671 001 521 STATE ROAD PROCESSING DATE 06/10/2002 DRIVER LICENSE ~ 22441387 WEST FAIRVIEW PA 17025 DATE OF BIRTH 05/21/1971 Dear HR. TAYLOR= This is an Offlcla/ Not/ce of the Suspension of your Driving PriviIege as authorized by Section 15q7 of the Pennsylvania Vehicle Code. As a result of your violation of Section 15q7 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 05/51/2002: · Your driving Privilege is SUSPENDED fop a peptod of YEAR(S) effective 07/22/2002 at 12:01 a.m. WARNING: If you are convicted of driving while your license is suspended/revoked the penalties will be a MINIMUM of 90 days imprisonment AND a $1,000 f/ne AND J your driving Privilege will be suspended/revoked for a HININUN I Year Period COMPLYING WITH THIS SUSPENSIOH You must return all current Pennsylvania driver's licenses, learner's Permits, temporary driver's licenses (camera cards) in your possession on or before 07/22/2002. You may surrender these items before, 07/22/2002, for earlier credit; however, You may not drive after these items are surrendered. YOU HAY NOT RETAZN YOUR DRZVERmS LZCENSE FOR ZDENTZFZCATZON PURPOSES, However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of 99.00. 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 w111 untll we steps to not ~ecetve cPedtt to~aPd servlng any suspension receive you~ license(s). Complete the following acknowledge this suspension. 021616111876671 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 Jn your letter why you are unable to return your dr/vet's /icense. Remember= You may not retain your driver's license for /dentification 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 af your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT wil! send you a receipt con- firming the date that credit began. Zf you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you wil! not be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. Zf you de not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(q) of the Pennsylvania Vehicle Code. PAYZNG 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 fallowing steps: 1. Return the enclosed ApPlication far 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. Fallow the payment and mailing instructions on the back of the aPplication. 021616111876671 APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil D/vision) within $0 days of the mail date, JUNE 17, 2002, of this letter. Z~ YOU file an appeaZ in the County Coupt, the Coupt w111 give you a t/me-stamped certified copy of the appeal. In order for your appeal to be valid, you must send this t/me-stamped certified copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Th/rd Floor, Riverfront Off/ce Center Harrisburg, PA 1710q-2516 Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZON. You must return all current Pennsylvania driver license products to PennDOT by 07/22/2002. Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing INFORNATION 7=00 a.m. to 9=00 p.m. IN STATE 1-800-952-q600 TDD IN STATE OUT-OF-STATE 717-$91-6190 TDD OUT-OF-STATE WEB SITE ADDRESS www.dot.state.pa.us 1-800-228-0676 717-391-6191 KEITH D. TAYLOR, APPELLANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE · 02-3387 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT AND NOW, this /~l,(.~,". day of October, 2002, the appeal from the suspension of a driving privilege, IS DISMISSED. Kevin D. Taylor, Pro se 521 State Street West Fairview, PA 17025 George H. Kabusk, Esquire For Appellee :sal KEITH d. TAYLOR, APPELLANT IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE : 02-3387 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., October 24, 2002:-- Appellant, Kevin D. Taylor, filed this appeal from the suspension of his driving privilege for one year for failure to compete two valid breath tests following his arrest for driving a motor vehicle while under the influence of alcohol. A hearing was conducted on October 21, 2002. We find the following facts. On May 31, 2002, at 2:52 a.m., Officer Adam Shope of the East Pennsboro Township Police Department arrested appellant for driving under the influence on Route 11/15 in East Pennsboro Township, Cumberland County. Officer Shope took appellant to a booking center, where he read him the following warnings from Form DL- 26 (7-94): 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. 02-3387 CIVIL TERM a) The constitutional rights you have as a criminal defendant, commonly known as the Miranda Rights, including the right to 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. Appellant signed the form acknowledging that he had been so advised. Officer Shope then turned him over to a booking agent. After observing appellant for twenty minutes, Agent Kevin Myers, a certified breath test operator, explained to petitioner the procedure for taking two breath tests on a BAC Data Master. The procedure was videotaped. Initially, appellant failed to blow enough air into the machine over a sustained period to register a valid test, and the machine printed out a deficient sample. The agent then gave appellant a second opportunity, and the same thing happened, with the machine printing out a deficient sample. Agent Myers and another agent explained again to appellant how to blow a sufficient amount of air into the machine to register a valid test. Agent Myers told appellant that he would give him one more chance to perform two valid tests. Appellant then blew a valid breath sample registering .146 percent. However, he then failed to perform a valid second test -2- 02-3387 CIVIL TERM because, (1) he did not take a sufficiently deep breath, (2) air escaped from the mouthpiece as he was blowing, and (3) he started and stopped blowing air into the mouthpiece. The machine printed out another deficient sample. As a result, Agent Myers deemed appellant's conduct a refusal which resulted in the suspension of his driving privilege for one year. 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 a 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, interalia, that the licensee refused to submit to chemical testing. DOT need not establish that the licensee objected to taking the test. Yi v. Department of Transportation, 02-3387 CIVIL TERM Bureau of Driver Licensing, 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 A.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) .... DOT 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 ^.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 87 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 is 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, appellant, after being advised on how to perform a valid breath test, failed to provide sufficient breath into a BAC Data Master to give a second -4- 02-3387 CIVIL TERM valid breath sample. Appellant has presented no medical evidence that he was physically unable to perform a second test. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this ~l'l"¥"-day of October, 2002, the appeal from the suspension of a driving privilege, IS DISMISSED. Kevin D. Taylor, Pro se 521 State Street West Fairview, PA 17025 George H. Kabusk, Esquire For Appellee :sal -5-