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HomeMy WebLinkAboutCP-21-SA-0000208-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-SA-0208-2009 : : DAVID R. KIRK : IN RE: OPINION PURSUANT TO RULE 1925 On Wednesday, July 15, 2009, at approximately 8:30 p.m., Trooper Christopher Campbell, of the Pennsylvania State Police stationed in Troop H Harrisburg, came into contact with a silver green Ford Ranger on State Route 581. While driving down the highway in a marked state police patrol vehicle, he ran the license plate tag of the vehicle, YSC7830. Upon running the tag, the registered owner of the vehicle came back as having a suspended driver’s license. Before stopping the vehicle, he checked the PennDOT J-Net records through his on- board computer, and retrieved a picture of the registered owner of the vehicle. As he drove by the Ford Range, he was able to identify the driver as David Kirk, the defendant, as the same man whose picture he had retrieved. He then proceeded to make a traffic stop on the vehicle. Upon pulling over the vehicle, the defendant became very agitated and told Trooper Campbell that he had a right to drive, and that Trooper Campbell didn’t have the right to tell him he couldn’t drive because he, the defendant, was coming from work. Trooper Campbell informed the defendant that it is a privilege to drive, not a right. Trooper Campbell also verified that Mr. Kirk was driving on a suspended driver’s license. As indicated on the citation, this was the defendant’s fifth offense for driving while suspended, which is an habitual offender offense. On October 13, 2009, the defendant was found guilty, by the undersigned, of driving under suspension. He has appealed to the Superior Court. CP-21-SA-0208-2009 Throughout what can only be described loosely as a “brief,” the defendant makes a number of arguments. The main theme throughout, however, is that he has a constitutional right to drive, and that driving is not a mere privilege. The defendant claims that the distinction between a right to use the public roads and a privilege to use the public roads is drawn upon the line of “using the roads as a place of business.” In other words, the defendant maintains that there is no right to drive if you are using the highways for business or for private gain, but that the use of the highways for the purpose of mere travel and transportation is not a privilege, but a common and fundamental right of which the public and the individual cannot be rightfully deprived. He cites, as authority, the constitutional prohibition against grants of titles of nobility. We have struggled, in vain, to understand any connection. It is axiomatic that driving is not a right; rather it is a privilege. Commonwealth v. Zimmick, 663 A.2d 1217, 1222 (Pa. 1995). To obtain the benefits of such a privilege, a driver must abide by the laws of the Commonwealth relating to the privilege. Id. at 1223. Therefore, any argument made by the defendant which infers that he has a right to drive and that the Vehicle Code does not apply to him, is incorrect. Even if the license were a right of property, which it is not, “it would be held in subordination to such reasonable regulations by the states as are clearly necessary to preserve the safety, health, and morals of the people. The enforcement of these regulations by revocation or suspension of the privilege is not the taking of property without due process of law.” Commonwealth v. Halteman, 162 A.2d 251-255 (Pa.Super. 1960) citing Commonwealth v. Funk, 186 A.2d 65 (Pa. 1936). Finally, it is clear that the defendant misconstrues the constitutional safeguard of a right to travel. The defendant believes that the “right” to drive a vehicle is synonymous with his 2 CP-21-SA-0208-2009 constitutional right to travel. This is not so. The right to travel embraces three factors: (1) the right of a citizen of one State to enter and leave another State; (2) the right to be treated as a welcome visitor rather than an unfriendly alien; and (3) the right to be treated like citizens of that State. Wert v. Commonwealth, 821 A.2d 182, 188 (Pa.Commw. 2003). These are rights which are derived from Article IV, Section 2, as well as the Fourteenth Amendment to the United States Constitution. The right of citizens to move freely between the states has nothing to do with the issue of whether operating a motor vehicle on the highways of Pennsylvania is a right or a privilege. February 24, 2010 _____________________________ Kevin A. Hess, P.J. Michelle Sibert, Esquire Chief Deputy District Attorney David R.Kirk, pro se 78 Westerly Road Camp Hill, PA 17011 :rlm 3