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HomeMy WebLinkAbout02-4786 CivilJOHN D. HIPPENSTEEL COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-4786 CIVIL CIVIL ACTION - LAW IN RE: LICENSE SUSPENSION APPEAL BEFORE GUIDO~ J. OPINION AND ORDER OF COURT Before us is the appeal of John David Hippensteel (hereinafter "appellant") from the suspension of his operating privileges by the Commonwealth of Pennsylvania, Department of Transportation. The department suspended appellant's license pursuant to § 1547 of the Vehicle Code~ as a result of his refusal to submit to chemical testing on August 9, 2002. An evidentiary hearing was held before us on December 6, 2002. For the reasons hearinafter set forth, the action of the department will be sustained and the appeal dismissed. FACTUAL BACKGROUND On August 9, 2002, at approximately 11:00 p.m., appellant's vehicle came to the attention of Trooper Johnston of the Pennsylvania State Police when the wheels chirped as it accelerated from a stop sign. The trooper followed the vehicle for 1.6 miles before initiating a traffic stop. During that time, he observed the vehicle weaving within its own lane of travel. He also clocked the vehicle traveling 58 miles per hour in a 45 mile per hour speed zone. ~ 75 Pa. C.S.A. § 1547. NO. 2002-4786 CIVIL Pursuant to the ensuing traffic stop, the trooper noted numerous signs of intoxication. The appellant smelled of alcohol, his eyes were glassy and bloodshot, his speech was slurred, and he had trouble forming sentences. Furthermore, he admitted to having consumed "6 or so" alcoholic beverages. Appellant was placed under arrest for driving under the influence and transported to the Cumberland County Central Processing Center. While at the center, the trooper advised him of the implied consent law and the O' Connel! warnings.2 The trooper then turned the petitioner over to booking center personnel for further processing, after which he left to resume his patrol duties. A few minutes after the trooper left the booking center, Booking Agent Zell began to process appellant.3 At the beginning of the processing, as Agent Zell was explaining the breath testing procedure, the appellant unequivocally stated that he would not submit to the test. Agent Zell then asked appellant if he realized that his refusal would result in a one year suspension of his operating privileges. He responded in the affirmative, but still refused to submit to the test. Later in the evening, the trooper was advised of the refusal. He submitted the refusal to the department which suspended appellant's operating privileges for one year pursuant to § 1547(b) of the Vehicle Code. 2 Dept. of Transportation, Bureau of Traffic Safety v. 0 'Connell, 521 Pa. 242, 555 A.2d 873 (1989). The 0 'Connell warnings were read verbatim from Form DL-26. They included, inter alia, the following language: "I am requesting that you submit to a test of breath." See Commonwealth Exhibit 1. 3 While nobody testified as to the time the trooper left the booking center, Commonwealth Exhibit 2 indicates that the arrest occurred at 23:02 and the refusal took place at 23:50. NO. 2002-4786 CIVIL DISCUSSION To sustain a suspension of operating privileges under {} 1547, the department has the burden of proving that appellant: "(1) was arrested for driving under the influence by a police officer who had reasonable grounds to believe that the licensee was operating or was in actual physical control of the movement of the vehicle while under influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might result in a license suspension." Banner v. Commonwealth of Pa., Dept. of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203, 1206 (1999). We are satisfied that all of those requirements were proven in the instant case. Therefore, we will enter the order that follows. ORDER OF COURT AND NOW, this 30TM day of DECEMBER, 2002, after hearing, and for the reasons set forth in the accompanying opinion, the department's suspension of appellant's operating privileges for one year pursuant to {} 1547 of the Vehicle Code is SUSTAINED and the appeal is DISMISSED. By the Court, John Mancke, Esquire For the Defendant Dept. of Transportation For the Commonwealth :sld /s/Edward E. Guido Edward E. Guido, J.