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Home My WebLink About95-02583 ,I cf . 'i I I. 'i!. t j . ~ ,J I I, .' " I' I' I' II , ., I' d ~ . . 'I ,II . , 'I I I . I "l . , , b Ii " I ~ I q " ) , I I' " I,'l / I , I' ,/ 'I , I I I I .' I I !I I I , I 'I " I I, I ~ "I , ,I ,I 'I II p- " i' I 'I J I . I " II I , I rt) ! I,' I I ()O I I ,\() i' il, I (0 I I' il I' I " 7 ~ U 'j. ~' ~ ' ~ r0 't ~~ ....... N) kj I ,1 tR {'.. ,.... ()J~ ""- ~ ",:-:; ~ ~9~ " . PI ... q .0'01) , ,-J' t'1 .:t- ~ 1,.'1 (~~ ~11 \.n ""-1 ~r:i. lJ, j: "' .- :.. -, ~t . In i it: ~<(II Sft ~ ;.1 I , 1\ ' . " " ,I Wk~~i~~);Tio,*, l"W OHICU ~;mtr;"' KE.ru:~ I' ----.. ,"Tl1RoIIl' " ., A,I.."..J'Y MANCI<E AND WAGNER . MAl \., \995 ~I' v. I I I I I I I I IN THlt COUR'f Of' COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. l/S. ,;J"JJ' \ ("" ( 'r:,'"II-'I GltRALD S. O/NltAL Petitioner COMMONWEALTH OF PENNSYLVANIA, DltPARTMENT OF TRANSPORTATION/ Respondent LICENSE SUSPENSION APPEAL ORDER or COURT AND NOW/ thiB '(I /," day of. .! '. "I , 1995 upon Petition of ,/ i i on the L cense suspens on Gerald S. O'Neal, a hearing iB set "{."II Appeal for the day of ..< I, , } ~.m. in Courtroom Number. -11--/cumberland county Courthouse, One CourthouBe Square, Carlisle, cumberland county/ pennsylvania, ./ 1995/ at ~~__ o'clock all proceedings to stay meanwhile. Notice of Baid hRaring Bhall be given by petitioner's counsel to the Department of Transportation at least thirty (30) days prior to the date of said hearing. PurBuant to section l550(b) of the pennsylvania Motor Vehicle Code, Petitioner's appeal shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended pending a final determination in t~s matter. /- B,Y THE COJ'RT I ~ / J. / 'J , \J,l i~\""~ \ )tJ\}\ I~ J\I' \' . Qj~' GRRALD S. O'NEAL Petitioner IN THE COUR'r OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF 'rRANSPOR'rATION I Respondent LICENSE SUSPENSION APPEAL Ll~BB SUSPEMIIOM APPEAL AND NOW, comes Petitioner, Gerald S. O'Neal, by and through his attorneys, Mancke Wagner Here hey & Tully, who make the following averments in support of this Licenee Suepeneion Appealt 1. Petitioner, Gerald S. O'lleal, hereinafter "Petitioner", ie an adult individual and a liceneed driver within the Commonwealth of Pennsylvania with a residence addrees of 322 West Meadow Drive, Mechancieburg, cumberland County, Penneylvania 17055. 2. Reepondent, Pennsylvania Department of Transportation, Bureau of Driver Liceneing, hae a mailJ.ng address at Transportation and Safety Building, Harrieburg, Dauphin County, pennsylvania 17120. 3. Petitioner received a notice of a one year license suspension with a mail date of April 14, 1995 which is marked as Exhibit "A" attached hereto and incorporated herein by reference. llm' ;:'~ .', .. ~ " .to._ I:'; ,...:" i, '.':J' '!I "'.j ii' " .ll/ , , " " " I " I ',' " " , , 'I ..'1 , , , I. 'I I! I I , I . , , Ii. . , J UL 25 199~:tTJ GERALD S, O'NEAL, Petllloner IN TIlE couln OF COMMON I'LEAS OF ClJMUERLANlJ COUNTY,I'ENNSYL.VANIA v, COMMONWEALTH OF I'ENNSYLVANIA, DEPARTMENT OF TI~ANSPOlnATION, I~esponde III NO, 95.25113 CIVIL TERM AND NOW, Ihis 9RDER JH ,!) dllY of July, 1995, Ihe Depllrtlllelll'S 1II0tlon for conlhlullnce 15 GRANTED, The hellrlllg previously scheduled for Wednesdny, July 26, 1995 1112:00 r,M, Is conlinued lInd is rescheduled for Ihe .'1 -/ ~dny of -\, j') \t ;\~" 1995, III ;)ll). o'c1ock A,M~.M~) III Courlroolll # L of Ihe CUlllherlllnd County Coul'lhouse, Cnrllsle. PellnsylvlInin, ) / BY nlE COURT: J. A TIEST: DISTRIBUTION: Mallhew X, HAeckler, Esquire, 103 TrRnspOrllllion and Safety Building, Harrisburg, PA 17\20, David E, Hershey. Esquire. 2233 Norlh Fronl Street, HlIrrisburg, PA 17110, , \(\'; , V~).I(J ' ( I \ '1\'/' ,,\i l),v \ C' 0} ~>~, .1- ..w....L.( -,'.1.(., 1.; , .j) ~,~ , \~t,iJ' 96-266S CIVIL TERM side of his vehicle, and that It was alleged that he had struok a vehlcla and fled, The trooper asked petitioner If he would like to tall< to him about It, and pelltloner declined, After conducting two field sobriety tests, Trooper Thlerwe~hter arrested petitioner for driving under the Influence. Petitioner was read his Mirenda rights at the scene.' Petitioner, a Penn State graduate and Director of Administrative Services for the Pennsylvania Department of Aging, told the trooper that he did not understand those rights, The trooper further explained the rights. Petitioner then told the trooper he did not understand what an attorney was or what an attorney did, and that he could not read or write, The trooper told petitioner that he was being taken to a State Police barracks for a breath test. On the way to the barracks, petitioner asked the trooper If he could make a phone call, and was told that he could not. At the barracks, Corporal Bower, a qualified Intoxllyzer 5000 operator, also explained to petitioner his Mirande rights. Petitioner again said he did not understand those rights. Petitioner asked permission to make a phone call, which was denied, He asked permission to call a corporal he knew In the state police, which was also denied. Corporal Bower then explained to petitioner that he was under arrest for driving under the Influence of alcohol. He made a request to petitioner to submit to a chemical test of breath on an Intoxllyzer 6000. Petitioner was told that, (1) If he refused to submit to the chemical test, his operating privilege would 2, Miranda v. Arizona, 364 U.S. 436 (1966), -2- 95.256G CIVIL TERM be suspended for a period of one year; (2) the constltutlonsl rights he hAd as a orimlnal defendant, commonly known as the Mlr.nd. rights, Inoludlng the right to speak with a lawyer and the right to remain silent, apply only to orlmlnal prosecutions and do not apply to the chemical testing procedure under the Penneylvanla's Implied Consent Law, which Is a civil not a orlmlnal prooeedlng; (G) he had no right to speak to Ii lawyer or anyone else before taking the chamloal te"t requested, nor did he have a right to remain silent when asked by the pollee oHlcer to submit to the chemical test; (4) unless he agreed to submit to the test requested, his conduct would be deemed to be a refusal and his operating prlvllego would be suspended for one year; and (5) a 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 Bubstance. Several times petitioner asked Corporal Bower and Trooper Thlerweohter what he should do. He was told by the oHlcers that 1\ was his decision. They could not advise him what to do, they could only advise him of the consequenoes If he refused to take a test. After about ten or fifteen minutes petltlonlJr was told that If he did not make a decision to take the test, It would be Interpreted as a refusal. Petitioner did not make a decision. He was told that oonstltuted (\ refusal. The officers then made -(3- 95-2583 CIVIL TERM arrangements for somebody to come to the barracks and pick up petltloner,~ DISCUSmQN The evidence shows that petitioner was arrested for driving under the Influenoe; that Trooper Thletwechter had reasonable grounds to believe that petitioner was operating a vehicle while under the Influence of alcohol; that petitioner was asked to submit to an Intoxllyzer 5000 test; and that petitioner would not take the test. Commonwealth, Department of Transportation, Bureau of Tro",o SDfetV v. O'Connell, 521 Pa. 242 (1989). Anything short of an unqualified, unequivocal assent to the request to submit to chemical testing Is a refusal. Colgan v. Commonwealth, Department of Transportation, Bureau of Driver Llcenalng, 127 Pa. Cornmw. 479 (1989), Petitioner was Informed that his driving privilege would be suspended for one year If he refused to take tl1e Intoxllyzer 5000 test, and he was Informed that his Miranda rights did not apply to the chemical testing. Commonwealth, Department 0' TranlportDtlon, Bureau 0' Driver Licensing v. Ingram and Frain, _ Pa. _, 648 A.2d 285 (1994). Far from the officers degrading him, It was petitioner who played 3. Petitioner testified and acknowledged that he had been advised of his Mlrende rights and the Implied Consent Law. He testified that he wanted to call a friend In the state police because he wanted advice on whether to take the test. Petitioner testified that he was told he could not make a phone call and that he had to make a decision of whether to take the test. He acknowledged that he never agreed to take a test. He testified that he asked the officers what to do -- that It was confusing. He testlfled he did not recall being told that his Miranda rights did not apply when It came to making a decision of whether to take a test. When asked If he told the officers that he did not know what an attorney was or what an attorney did, he responded: "they were taking to me, I thought, In a very degrading manner. If I wanted to make a phone call, I thought It was quite evident that I knew what an attorney did." .4-