6th Am. Right to Att'y denied by Keystone Cops, @ critical phase of Prosecution

[Pete Moss]

6th Am. Right to Att'y @ critical phase of Prosecution

In the Supreme Court of Pennsylvania

Commw. v. Pete Moss​

Statement of Case, Questions Involved:

Where a 2nd degree misdemeanor DUI increased to a first degree for refusal of chemical test at police investigative detention, and where it was impracticable to allow this motorist an attorney at 1AM [my sobriety might ensue], but notwithstanding an attoney could persuade a motorist - client to submit to such a chemical test, did police denying me an attorney deprive due process and Sixth amendment Right to counsel at the DUI stop on night in question?

Is the answer... yes, and DUI convictions are possible without chemical tests anyway [?]

This case is heading toward federal court fast. Allot of the invalidity of the pleas were promulgated by the County Court's goal of indoctrination into an Alanon, 12-Step Faith-Based Recovery Program Requirement in the Pike Co. Jail [violative of establishment Clause - relief is in sight]. Plea to a second bogus charge in same DUI episode is on appeal in PA Supreme Ct.

-Pete Moss, pro se

 

[Zigner]

You DO understand that you ALREADY consented to a chemical test when you got your license, right?

 

[tranquility]

I'm not going to look it up unless we'all gonna have a debate on the matter, but some states have a different set of rights regarding chemical testing than implied consent. I don't think PA is one of them, but I'm not sure. Again, without looking it up, I believe Ohio has held that the testing was a testimony of some sort and a person had the right to speak with an attorney and the introduction of such evidence was at a prelim which was a "critical juncture" without providing one violated the sixth amendment for some reason.

Clarity edit:
Not a failure to provide an attorney at the hearing, but prior to the taking of the test when requested by the suspect. However, it was the introduction of that evidence at the hearing which made it sixth amendment rather than the fifth.

 

[Zigner]

§ 1547. Chemical testing to determine amount of alcohol or controlled substance.

(a) General rule. --Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol or a controlled substance or both; or
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

 

[tranquility]

Well, there you go. Pennsylvania is an entirely different state from Ohio.

On a quick Google search, I find the OPs specific argument being decided against because it was not considered a critical juncture and the sixth amendment did not apply. It is a simple consent (albeit implied) to a search to gather evidence.

Just to make sure I wasn't just underdosing on my meds, Ohio has case law indicating that it is a critical juncture and the sixth amendment is implicated. Even though the states touch, they are different circuits so a difference is not going to be of any moment.

Sorry, OP, I shouldn't have answered without looking things up.

Info edit:
However, see Commonwealth Department of Transportation v. O'Connell 555 A.2d 873 (Pa. 1989) for a supreme court decision on how an officer's failure to advise the suspect did not have the right to speak with an attorney prior to testing prevents the administrative suspension of the license for refusal if that is the reason why the suspect didn't take the test.

 

[Pete Moss]

No, they did not. You don't have a right to an attorney in order to persuade you to comply with the law. You could have done that on your own.

Of course they are.

The following pertinent part of PA Vehicle Code indicates that the police must inform refusals, which implies that motorists DO NOT know the law and the police must inform them (contrary to popular belief). If, as in my case, the police did not give me this fair warning in section 1547, then I could be resentenced to a second degree, instead of first degree DUI. These warnings are spelled out in an official PENNDOT Form DL-26, which Blooming Grove State Police never use.

Must I be conscious of how inept they are and suffer along with it? Never! Commonwealth v. Jaggers, Commonwealth v. Smith is controlling and on point to gain me relief.

75 Pa.C.S. § 1547. Chemical testing to determine amount of alcohol or
controlled substance.
​

(b) Suspension for refusal.--

(2) It shall be the duty of the police officer to inform
the person that:
(i) the person's operating privilege will be
suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical
testing, upon conviction or plea for violating section
3802(a) (1), the person will be subject to the penalties
provided in section 3804(c) (relating to penalties). (3) Any person whose operating privilege is suspended
under the provisions of this section shall have the same
right of appeal as provided for in cases of suspension for
other reasons.

-Pete Moss

 

[tranquility]

I haven't researched the issues, but you make a case regarding the imposition of the enhanced penalties associated with refusal of chemical testing. (As did the civil penalties in the case I cited.) I'm not sure how this has to do with the sixth amendment. I also note it is unlikely the courts require the reading of that specific form as long as you are put on notice. Read the cases carefully as I've often found pro se litigants read cases in their favor without knowing the real issue and the holding and if the case is still valid. My understanding of what you posted is that the civil penalty is not allowed (of suspension of license) without the warning--not the criminal ones. It seems a codification of the case I cited.

 

[Pete Moss]

You DO understand that you ALREADY consented to a chemical test when you got your license, right?

Firstly, I am in favor of Vehicle Code & alcohol education awareness, sobriety, American Heart & Lung Association, W.H.O., Diabetes Mgt., condoms, and marriage between the opposite sexes.

Yes, of course I am aware of Implied Consent, but the law [section 1547] provides that a motorist has a right to refuse, also; chemical testing is currently an invasive medical procedure, which is why the silliness of implied consent (how about explicit consent?!)

Turning the Pennsylvania Vehicle Code civil proceeding for refusal of chemical test [license suspension] into the punitive, criminal one [with a possibility of three more years in prison if convicted] is similar to an old trick used by the US Immigration Service:

The I.C.E./Dept.Homeland Security, U.S. Att'y Genr'l smoke & mirrors ploy: deportation of any immigrant is denominated a civil proceeding - with the effect to deprive immigrant/litigants of rights otherwise guaranteed in criminal proceedings; but, what could be more punitive than banishment from a country for many years?

I have no accidents in the previous 10 years, and have never had an alcohol related accident in my 30 years of driving.

-Pete Moss

 

[Pete Moss]

Helen Wheels

... My understanding of what you posted is that the civil penalty is not allowed (of suspension of license) without the warning--not the criminal ones. It seems a codification of the case I cited.

Suspension & civil appeals of same are allowed. However, criminal appellants prevailed and were resentenced as if they had not refused chemical testing, in Commw. v. Jaggers & Commw. v. Smith because Pennsylvania Superior Court recently held that the official PennDOT warnings in DL-26 are deceptive and invalid , anyway, whether police read them or not. It's remarkable, if one were to take advantage of this opinion and appeal, and I did.

Illinois (a civilized state) does not penalize criminally for refusal -- because refusal implies a guilty mind.

DUUUUUH!

As it is, given that there are a number of people in Pike Co. Jail under similar, excessive sentencing and no DL-26, the Pike Co. Court and the PSP are still operating on the 2002 Vehicle Code of strictly an O'Connel Warning of suspension [ignoring criminal warning].

PA is on the MacArthur Foundation's "Hit List" for justice relief, particularly juvenile justice relief as an older, archaic, Commonwealth criminal justice system; Salem Witch Trial, 374 A.2d. 245 (1678) .

The former litigants in Commw. v. Jaggers [~25 different cases at once were decided in favor of appellants by PA Superior Ct.] made pre-trial motions for this relief, which departs from my case, where I filed a direct appeal for relief after conviction because my attorney could not, would not see the light of day - and asked me "How much justice can you afford?"

I had determined I that I was the only man in Pike County who realized that this new [2003] Vehicle Code was meant to punish sloppier drunks moreso than guys like me; I immediately decided I liked my arresting officer [Horse] and smoothe-talked him into a nice, tho bumpy ride home on night in question.


-Pete Moss De minimus non curatlex -The law takes no account of trifles.

 

[tranquility]

Suspension & civil appeals of same are allowed. However, criminal appellants prevailed and were resentenced as if they had not refused chemical testing, in Commw. v. Jaggers & Commw. v. Smith because Pennsylvania Superior Court recently held that the official PennDOT warnings in DL-26 are deceptive and invalid , anyway, whether police read them or not. It's remarkable, if one were to take advantage of this opinion and appeal, and I did.

So, as I wrote, it is notice and not the specific warning which are important. (By the by, why cite the witch trials and not cite the cases you are relying upon? That's just silly.) And, as *you* said, they didn't read you the PennDOT warnings from the DL-26. Once again you have declared something to be true without support. In this case, that your facts are indistinguishable from the facts of those cases.

The former litigants in Commw. v. Jaggers [~25 different cases at once were decided in favor of appellants by PA Superior Ct.] made pre-trial motions for this relief, which departs from my case, where I filed a direct appeal for relief after conviction because my attorney could not, would not see the light of day - and asked me "How much justice can you afford?"

I hope you made such motions during your trial at some point or your issues would not be saved for appeal.

I had determined I that I was the only man in Pike County who realized that this new [2003] Vehicle Code was meant to punish sloppier drunks moreso than guys like me; I immediately decided I liked my arresting officer [Horse] and smoothe-talked him into a nice, tho bumpy ride home on night in question.

What did the legislative findings show? Or, are you just supposing?

 

[Pete Moss]

What is unimportant

v.

what is, indeed​

• Unimportant: Individual Rights

• Important: a motion is made for invoking aforesaid rights (e.g. petition for redress of grievances, based on governments' deprivation of citizens' rights endowed to them by Creating Heaven), and pairing off, somehow.

• Rip VanWinkle, and Sleepy Hollow lived here; the Salem Witch Trials brought an end to the self-same malarky.

• We have been right from the start, but because it is not a felony nor was anyone hurt, and I did not trust another att'y but went pro se, the court and opposition parties have nitpicked my appeal to death, added with the fact that Pike County District Attorney's Office was not, is not, never will be capable of arguing the merits of these types of cases and appeals. They could not try a ham sandwich; so they've tried to quash this appeal out of desperation, on trivial matters of my form, and have succeeded so far. Big men! I have succumbed to the real need to pair off with a new advocate lawyer.

• More relief generally lies in the illegality of the faith-based Pike County Jail alcohol addiction recovery program (into which we are squeezed by the County Court for its aggrandizement). It plainly violates the First Amendment Establishment Clause, and gave me and others allot of grief for redress (s*gh).

And how could such long, blonde haired good looking women [lawyers] be so godam mean? My attorney resembled Ann Coulter; she has a cute laugh, though doubtless she'd be happier to leave allot of her targets [e.g. 9-11 widows] alone; prayer for relief to courts is similar to prayer for neighbors, I daresay.

• Pennsylvania regions were just featured on NOVA re: Creationists who do not reckon that the 1985 Supreme Court decision to ban the teaching/indoctrination of Creationism in public schools applies to them [also SEE Robert Klein's most recent HBO special].

-Pete Moss If the shoe fits, find another shoe just like it (George Carlin)

 

[tranquility]

Ahh....well that explains it.

Sorry about your status as a ham sandwich.

 

[Pete Moss]

Practice makes a perfect practice.

I was quashed in Superior Court [misfiled something], so I filed a petition for allowance of appeal in Philadelphia Supreme Court, rec'd by the clerk there on Nov. 27th, 2007, tho it was due the 26th in Harrisburg. Phil. is for that county alone, they tell me, tho I was there in Superior phase.

The rules of court provide for no less than two distinct dates accepted for filing: one is an earlier filing date which is equivalent to a local mailing date [accompanied by a USPS 3817], instantly the day before she rec'd it [the final date allowed for filing]. The second is the date rec'd by the clerk.

Now they've written me and added the transit time from Phil. to Har., making it 2 weeks late.

"Take the plunge and E-Mail Ron Kuby, again."

-Pete Moss, Per angusta ad augusta -through difficulties to honors