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Home My WebLink About96-01566 " 11' .... ',~ ". \ / / J J ......., ~ '(" -, ^' ,,' i ^l -. ." . i ~:~ "~ I tl'{ '", ( 'f) , .' ~ ''1 '~ ..., , ~ r-r-, ~ (.'; ""' 1'1) , .-( '-, f'-' l ' ,1 t-;, -.:::r ~ '- "- "K ~ ......... '~ '~~ 4 1'"'\-<' (-~'.' 'V <J - 'r ~" '--....::J - z < CIl< z .... <> 0 ~ ~>l ,.., J=~l en > ! . ""CIl Z "" ....:l k S Z tol '" >< III ZZ a, '" CIl C ~~ Otol en .... Z 0 Ii"" ;) z ... ~ ~I en tol -... .0 . "" 0-1..... III !l u>< tol 0-1... li j~! E-o en ... . tollll ...z Z 0 > en a, '0 :l tol en . 0 U x ;) . l~iJ E-oU ,.., E-o '" rot 0: 0-1 ....:l :lO < . c ~i sa 8~ r.. ~ < 0 I I !:l 0-1 en ! iii tolo: 0-1 0 j Xtol < . ~ I' E-olXl tol 0 l:l z~ a, z ;) I a, U 0 ! ....u < 0 . ~ .4 .",,~I L- .,.hV '-.I-)v v. IN THE COURT OF COHIfON PLEAS : CUMBERLAND COUNTY, PENNSYLVANJA No. {/~' I.J ~ ft, (I ~L .je'lAv'- COHIfONfIIEALTH OF PBNNSYLVANJA . . . . . . . . DOUGLAS A. RUSSELL peti tioner . . . . ORDER OF COURT .71) AND NOW, this c?(,S day of ,)))U t'/lj ._._-------,--,~~-, 1996, upon consideration of the within petition, it is HEREBY DECREED that J ))11 r ) . r' m. a hearing on this matter be held on the , 1996, in Court Room No. ~ at ,~ ORDERED AND ) -I/o -'\ '1' I day of , , ,,'1(J o'clock A stay of Petitioner's License Suspension is hereby issued pending the disposition of the Appeal. BY THE COURT: J. Distribution: Sanford A. Krevsky, Esq. 1101 N. Front st. Hbg. PA 17102 Pennsylvania D.O.T., Room 103, Transportation & Safety Buildinq, Hbg, PA 17120 COIfIlOMtlBALTH OF PENNSYLVANIA : .IN THE COUIn' OF COIfIlON PLEAS : CUIIBERLAND COUNTY, PENNSYLVANIA . . v. : No. -}(..,':.(.(. ',- " 1 .~- ~ t ''-''_1 III ,,-~ DOUGLAS A. I<<JSSBLL Petitioner : . . . . TO THE HONORABLE JUDGES OF SAID COURT: APPEAL OF LICENSE SUSPENSION AND NOW, COMES Petitioner, DOUGLAS A. RUSSELL, through his attorney, Sanford A. Krevsky, who petitions this tlonorable Court to appeal the suspension of his license and, in support thereof, offers the following; 1. Petitioner, Douglas A. Russell, is a Pennsylvania resident residing at 93 Greenwood Circle, Wormleysburg, Cumberland County, Pennsylvania 17043-1140. 2. On March 1, 1996, Petitioner was advised by the Department of Transportation that his license was to be suspended for violating ~ 3731 of the Vehicle Code, Driving Under the Influence (EXhibit A). 3. Petitioner is permitted to appeal the suspension of his license. WHEREFORE, Petitioner prays your Honorable Court to appeal the suspension of his license and to lift the suspension of license pending a hearing on this matter. Respectfully submitted, DATE: .s(/ 'j~ ;:~U~3 "') Sanford A 1(revsky, Esquire 1101 North Front Street Harrisburg, PA 17102 (717) 234-4583 Ln. # 15560 .1 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bu~eau of D~ive~ Licensing Ha~~isbU~g, PA 17123 MARCH 01, 1996 DOUGLAS ALAN RUSSELL 2808 LAUREL LN ~b0188440000Sl1 001 02l23/l~'1b 13S31blb 03/13/1'l4'1 CAMP HILL PA 11011 Dea~ Moto~istl As a ~esult of yoU~ violation of Section 1547 of tha Ve- hicle Code, CHEMICAL TEST REFUSAL on 01/10/1996, yoU~ d~iving privillge is being SUSPENDED fo~ a PI~iod of 1 YEAR(S). In o~der to comply with this sanction YOU a~e ~ellui~ed to ~etu~n any cU~~ent d~ive~'s license, le8~ner's pe~mit and/or tempo~a~y d~ive~'s license (came~a ca~d) in your possession no late~ than the effective date listed. If YOU cannot com- ply with the ~equi~ements stated above, YOU a~e ~equirod to submit a DL16LC Fo~m o~ a sworn affidavit stating that YOU are aWa~e of the sanction against YOU~ d~iving p~ivilege. Failure to comply with this notice shall result in this Bu- reau ~efer~ing this matte~ to the Pennsylvania State Police for p~osecution unde~ SECTION 1571(a)(4) of the Vehicle Code. Although the law mandates that YOU~ d~iving p~ivilege is un- der suspension even if YOU do not sU~~ende~ YOU~ license, Credit will not begin until all cU~~ent d~1ver's license product(s), the DL16LC Fo~m, o~ a lette~ aCknowledginy your sanction is ~eceived in this Bu~eau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU 00 NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. Effective Date of Suspension I 04/05/1996, 12:01 a.m. .................................................................... IWARNINGl If YOU a~e convicted fo~ d~iving while your license is I Isuspended, the penalties will bel not less than 90 days imprison-I I.ent and a .1,000 fine and an additional 1 yea~ SUspension. I .................................................................... EXHIBIT I A 960188440000517 Please see the enclosed application 'or restoration fee in- 'or..ation. You have the right to appeal the Depart..ent's action to the Court 0' Co....on Pleas (Civil Division) within 30 days 0' the ..ail date (HARCH 01, 1996) 0' this notice. PLIAS. NOTI that this Civil Appeal is in addition to any appaal yoU have to 'ile 'ro.. the criMinal conviction. You IIUSt 'ollow the in- structions listed below ""'=IJrrling to your individual situ- ationl 1. PINNSYLVANIA RESIDINT - I' yoU are a r.sident 0' P.nnsylvania, yOU Must 'ile an appeal with the Court 0' COII- lion Pleas in the County 0' your residence. Sending a copy 0' the appeal which YOU 'i1ed with the Court, to the Depart- ..ent, will postpone the D.part..ent's action p.nding a 'inal decision by the Court i' the app.a1 was 'i1ed within the re- quir.d 30 days. However, i' your privi1.ge to op.rate a co.....rcial Motor vehicle has been DISQUALIFIED, a signed supersedeas by the JUdge IIUSt accoMPany your appeal. 2. NON-RESIDENT - I' yoU are not a r.sident 0' Pennsylvania, yOU IIUSt 'i1e an appra1 with the Court 0' COMmon Pleas in the Pennsylvania County where the violation occurred. Sending a copy 0' the appeal which yOU filed with the Court, to the D.part.ent, will postpone the Depart.ent's action pending a final decision by the Court i' the appeal was 'i1ed within the r.quired 30 days. THE APPIAL MU9T BI SENT BY CERTIFIED MAIL TO: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL ROOM 103, TRANSPORTATION . SAFETY BUILDING HARRISBURG, PA. 17120 Sincerely, ~~,~ Rebecca L. Bickley, Director Bureau 0' Driver Licensing 960188440000517 . . SEND FEE/LICENSE/DL-16LC/TOI DepartMent of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7100 AH TD 6130 PH) Pittsburgh Area - 412-565-5670 Phi1adelphia Ara. - 215-698-8100 Harrisburg Area - 717-787-3130 T011 Free 1- 800-932-4600 T.D.D. 1- 800-228-0676 COMMONWEALTH OF PA. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96.1566 CIVIL TERM LICENSE SUSPENSION APPEAL vs. DOUGLAS A. RUSSELL ORDER AND NOW, this .l' . day of August, 1996, after hearing and careful consideration of the testimony adduced, the appealllf Douglas A. Russell from the suspension of his operator's license is DENIED. BY TIlE COURT, ./1ti George Kabusk, Esquire For PennDOT e~~ . g/~ lq/, Sanford A. Krevsky, Esquire r_ For the Petitioner ~" :rlm H CIlZ Z < << 0 H ~> H Z I r ~~ CIl < -r ~ ll.>< Z > CIl ~ ~ ~Z ll. >< l~ ~II J!.~ ~ zz CIl CIl O~ 0 Z ~."" CIl .-i Z Ilih I'l ~ o . ILl .,.j ll. ~ u>< CIl > ~ .E-< Z .,.j r.. . CIl <<ti ~~r: r..z ILl u 0 > CIl 00 U '" 0 IIi} 0 ~~ '" :c 0:: j ~zg Eo<U Eo< 0:: Q '" ~ . C S:::l 00 Zr.. ..... < < S =!1l 8:i! ~o I ~ '" ~ CIl ~ I ~ 0 '" j ~O:: ::E...:! 0 :C~ ~< . ~ l:l Eo<l%l ::E~ 0 0 zS ll. Z 0 U Q "'qfjtl-' COIIII01fN8AI:l'8 OF PENNSYLVANIA . . IN '1'88 COOHI' OF COIIIION PLEAS CUIIBllRLAND LWlI'I"/, PENNSYLVANIA NO. 96-1566 CIVIL . . v. : . . DtXlGLAS A. IVSSELL Appellant . . TO THE HONORABLE KEVIN A. HESS, JUDGE OP SAID COURT: MEMORANDUM APPEAL OP LICEH5E SUSPEHSION L.... FACTS On January 10, 1996 the Appellant, Douglas Russell, was approached by Officer Jeffrey O'Donnell of the Camp Hill Police Department: at the time, the Appellant was attempting to reach the crest of the hill upon which his residence was located. The weather was cold, windy and the road was snow covered: a major storm had recently hit the area (See Attached A). The officer opened the door of the vehicle and believed that he smelled alcohol. He asked the Appellant if there were any problems and the Appellant said that he was trying to reach the crest of the hill. At that time, the Appellant said that he would like to try it one more time and the officer closed the door, allowinq the Appellant to make an attempt to reach his residence. The Appellant was unsuccessful due to the weather conditions. At that point, the Appellant backed his vehicle to the bottom of the hill to make another attempt to his residence through the other entrance to the development. At that time, Officer O'Donnell, with backup assistance from Officer Ressler, placed the Appellant under arrest. Reasons for the arrest, elicited by the officers at the hearing were blood shot eyes, slurred speech, and odor of alcohol. There was no evidence of an accident, erratic driving, or failure of field sobriety tests. Appellant then was taken to the booking center where he was asked to take a blood test. Appellant initially refused to take the test: subsequently, after conferring with counsel and when presented with the subject paperwork, he indicated that he would take the test. At that time, the officer refused to allow Appellant to take the test. II. ISSUE Did the officer have reasonable arounds to request Appellant to submit to the chemical examination? (Suggested response in the negative) . Page 2 III. DISCUSSION A review of Commonwealth vs. Farrell, (672 A.2d 324 1996) which cited the case of Commonwealth vs. Whitmyer, 668 A.2d lllJ (1995) approvingly for the proposition that there must be legal justification for an J.nvestigatory vehicle stop leads to the inescapable conclusion that the officer had no right to even request Appellant to take a chemical test. In Whitmyer, the arrestee hit a curb and crossed a solid white line to pass a vehicle in front of him. In addition, the trooper utilized his speedometer for two-tenths of a mile rather than the three-tenths required by the Vehicle Code to estimate that the drivers speed was approximately 70 mph. The Trial Court ordered, and the appellate court agreed, that all the evidence obtained pursuant to the stop was illegally obtained as there was no probable cause to believe that Appellee was in violation of the Vehicle Code. In Commonwealth vs. Farrell, the situation was somewhat similar to the instant matter in that a police officer received an anonymous tip. The officer was able to verify that the driver of the subject vehicle had the same name of the person named in the tip. When the officer located the vehicle, it was parked outside a tavern. However, before arresting the suspect, the officer waited for him to exit the establishment and begin driving. It was ~nly after personally observing the suspect driving erratically that the officer stopped him and arrested him for driving under the influence. Under these circumstances, The Court found that the officer had acted appropriately. What is crucial is the oper.ator's ability to drive and there was no evidence in the case at bar that Mr. Russell drove erratically: to the contrary, the witnesses testified that there was no erratic driving and that the operator was able to back the vehicle (on a snOW-framed, icy road) to rest at a point prior to the location of the arresting officer's car. In fact, the arresting officer allowed the Appellant to attempt to drive up the hill and it was only after his unsuccessful attempt that he took him into custody. Bringing his piCk-Up truck safely down the hill is evidence of good, not impaired, driving. Throughout their testimony, the witnesses contradicted each other. This is particularly important in light of the fact that witness number 2 (Officer Ressler) sat through witness number l's (Officer O'Donnell's) testimony. While the backup officer (Ressler) said that the operator "slid" down the hill, his testimony clearly contradicted the arresting officer's (O'Donnell) who indicated that the operator drove the vehicle down the hill. Page J Drawing our attention to the indicia of Intoxication, the presence of a number of indicia (slurred speech, odor of alcohol, bloodshot eyes, and trouble locating the cards) as all being present is too coincidental. The police know what the requirements are: they know the "right" things to say. But looking closer at each item demonstrates the flaw in accepting the testimony. It should be noted that the ability to detect the slurred speech and the odor of alcohol was not available to witness number 2 (Officer Ressler) as he was, in his own admission, 10 feet away and was not even close enough to hear any specifics of the conversation. Therefore, from 10 feet away, he could not smell nor detect slurred speech. His testimony was at best a conjecture and, at worst misleading. Regarding witness number 1, his contact in terms of being able to detect slurred speech and odor of alcohol was extremely limited according to his own testimony. On cross examination, the officer's answers demonstrated only one opportunity for a brief response from Mr. Russell prior to his arrest. Most of the discussion contact with the officers regarding statements from the operator was subsequent to his arrest and request to submit. Regarding the backing up negotiated turn, witness 1 indicated that the operator negotiated a turn where witness 2 said he did not even have to try as his vehicle was located before the turn. Both witnessed offered little (witness 1), if any (witness 2), credible testimony to sustain the ability to smell breath, see blood shot eyes, or hear slurred speech. Regarding the failure to immediately locate the cards, tbe operator did produce his cards (insurance and driver's license). It should be noted that there was no dropping of the cards and th6 fact that he passed over his cards at night in an interrogation type atmosphere, in freezing temperature is not extremely prejudicial. The Appellant was and continues to be involved in a domestic separation and had not been sleeping well. It was windy and cold on the night in question. Additionally, Appellant's eyes are often blood-shot with no connection to the consumption of alcohol. The defense offered visual contact with the Appellant to ascertain that a) his eyes were blood shot or veins visible at the time of the hearing and b) that there was no odor of alcohol implying that be was under the influence of alcohol at that time. Page 4 All of the above considered, it is clear that the Commonwealth did not prove that it had reasonable grounds to request submission to an blood test. Applying Whitmver and Farrell to the instant matter, it is difficult to argue that the officer made a legally justifiable arrest of Appellant. The lack of reasonable grounds here is evident, for unlike the above cited cases, the officer never saw Appellant driving in an inappropriate manner. Furthermore, in Farrell the officer did not stop and arrest the operator until APTER he had personally witnessed the drivers erratic driving. In two recent Pennsylvania decisions, it was held that if the officer "suspects" a Vehicle Code Violation, it does not present reasonable grounds for request a test: Commonwealth v. Bower Sox, 675 A.2d 718 (pa. Super. 1996). See too, Commonwealth v. Hamilton, 673 A.2d 915 (pa. Super 1996). In the present matter, the officer never saw Mr. Russell driving erratically. The initial stop being illegal, any and all evidence obtained therefrom must be suppressed. IV. CONCLUSION Much pressure is imposed on our police and our Courts to protect the public from drunken drivers. Most often this pressure results in justice. Here we have a man stuck in the snow on an icy night yards from his home. No accident. No erratic driving: to the contrary, the Appellant carefully maneuvered his vehicle out of the roadway and safely down the hill. No failed field sobriety tests. Reasonable grounds is aimed at determining if the operator was driving under the influence. Blood shot eyes? The Court was asked to view the operator's eyes in Court... .no drinking. Slurred speech? The testimony is void of credible evidence that witness 1 had sufficient contact with the operator to determine that: w~tness 2 had no opportunity until after Mr. Russell was arrested and asked to take the test. Odor of alcohol? Witnesses may have smelled the odor, but this is not sufficient. The officers filled their testimony with buzz words to attempt to maximize impact on the Court. Buzz words however, without substantial proof, should not be used to convict or sustain a suspension. This case demonstrates that, while certain buzz words were introduced, at a closer review of the testimony there is ng ~ to use those words. The Court is limited to a review of the testimony and the testimony was either contradicting or insufficient. (11:1/ l'~ 1 'J'Jt. 1 ): l:~ ,. .. .. 17 _' _:.) ~:~,~,'I ',,,J IFIII"I- .. II'E'-""I', F'i~:,[ III .lInfar'" AlulI 1li:relll1l~!1 A rrnnNE't' ^ T LAW 1101 N rRONT RTnfET tIAHR1SDURO, PENNSYlVANIA "10' 117 :t.1H~R' FAX ,,, 2J4 JeMl SANFORD A. KREY5KY. E50lJ1I1E LAWRENCE .1 RUREN, ESQUIRE FAX .1'....R.A.IL S M I T '1' A L llNl'f:: -.A-t-L~v.~:I\ 1'\ I l.q~\P ~ " l. TO: _' l.lr:-,-~\J'*~~~ OF.' I:xd4/Jd_~lll~j PAX' ;/40- ~ t....wg,k~u FROM: Doofiud flrfAJSOf':s ofRc..e REMARKS: 1'1LA<.e Del.tlel' --L JJ~~W;'S -Ch.~-..iifl.dfLLf Jo (faJifb.rd rS re 1JS ~. lU ho i:s Jhe.r:. p_ .fo r Ol. ~__~rp ,]luLjP: Hlfr ~ I na r'1 t t-/ fJlA... NUMBER OF PACES IN THIS TRANSMITTAL INCLUDING COVER ()~ (' n - ~ SENDER'S FAX NUMBER: ("/1'1) 2)4-3650 IF ANY PAGES ARE ILLEGIBLE OR MISSING, PLEASE CALL (717) 2J4-4r,83. This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from enclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. It you received this communication in error, please notify us immediately by telephone (collect), and return the original message to us at the address abovo via the U.S. Postal Serv ice. (We wi 11 reimburse postage.) 'l'hftnk YQU, ORLGLNAL DOCUMEN'1' W!l.L ____,____ \!lILI. NCYl' BE FORWARDED BY MA n. - , . 0::':/ I '~/ 1 'YH;. I "i; l::; ~ ~ I ,~ ~. -:., ::1-.1:,11 '~,~.II~ I 11-'1, .. I f;f', . I, F.....'.,f: I' COlfIfONNEAL'1'H OF PBNNSYLVANIA : IN 7'811 COURT OF COHIION Pl..RAS CVHJJIIRLAlfD COUN'l'Y, PBlfNSYI.VANIA . . v. . . : NO. 96-1566 CIVIL DOUGLAS A. RUSSBl.l. AppA.l1l1nt : TO THE HONORABI.l~ KF.VIN A. HP..sS, .JUUCt: 0.' SATD COURT: KEMORANDUM APPEAL OF T.TCF.NSE SUSPENSTON On January 10, 1996 the Appellant Douglas Russell WillS approached by Officer Je!Crey O'Donnell for thp. above subject. At the time, the Appellant was attempting to roach the crest of the hill upon which his residence was located. 1'he weather was cold, windy and the ground was snow covered; II major storm had recently hit the area (See Attached A), The officer opened the door of the vehicle and believed that he smelled a lcohol. He asked the Appellant if there were any problems and the Appellant said t/lat he WilS tryin<) to reach the crest of the hill. At that timo, the Appellant said that he would like to try it one more time and tho off icer closed the door, allowing the Appellant to make an attempt to reach the crest of the hill. The Appellant was UnSuccessful due to t,he weather conditions. At that point, the Appellant attempted to bring his vehicle to the bottom of the hill to make another attempt to his residence. At that time, the officer with backup assistance, placed the Appellant under arrest and aSked him to perform a Field Sobriety Test. Due to the cold temperature and the windy and icy conditions, Appelllllnt did not feel that this was a fair testing time or place and refused. Appellant then was taken to the bookinq cent,er where he was asked to take a breath test, At the time, he was emotional due to the pressure of the situation, Appellant initially refUsed to take the test. Subsequently, after conferrIng with counsel and when presented with the subject paperwork, ho indIcated that he would in fact take the test, At that time, the officer refUSed to allow Appellant to take the test, :tSS lJE 1, Old the off leer have t:f,!<\IHJn;stJle qrol.lmlS to request Appellant to admit to the breathali~er exam? '.1:;:/ I',,. I"")~. I): 1:3 : l .7 ;.. ":.1 ;~_.r.;fl ':.~,ll~ (.11.\ t ... I F'~_ '....' :.1 I F',,".' If .., . .. 2, Was Appellant'r. con Rent to take the oxam, followinq two previous refu~al~, a "refuAal" within tho lllw? j, War. the 5top on Appellant ju~tifiablp., It is submitted that it was not as there was no accidnnt And the arresting officer has previouAly Indicated that he stopped Appellant baAed upon an anonymuus tip which iduntt ned only the type and color of vehicle and not the identity of the driver. AS to Number 1., there werc ci rcumstances in Appellant' 5 pcnlonlll life which had an impact on the obset.vations of the arrestin'l offic"r., ~'urthermore, Appellant's refusal to Aubmlt to a field sobripty tOfit must be 1udgect by the circumstancnfi extAnt Dt the time, a, alQ9~-~~Qt eYes. The Appellant was and continues to be invol vnd in i\ domeElt i c sepllrlSt.ion and had not t,een sleeping well. Additionally, Appellant's eyes are often blOOd-shot wi th no connection to the consumpt ion of alcohoi. b. Refusal of Field 50brlJt~__Tea~L Due to the fact that at the time Appellant was asked to take the field sobriety test the temperature was quite cold, it WAS very windy and the qround WAR covered with snow and ice, Appellant believed that the conditions wcre not conducive to a tair and obiective field sobriety test. More importantly, a review of ~Qm~Qfiwealt~vs. Farrell, (672 A.2d J24 1996) which cited the case of CQmmonwealth"_V~L_Whitmyer, 666 ".2d 1111 (1995) approvingly for the proposition thAt there must be legal justification for an inve~tigatory vehicle stop leads to the inescapable conclusion that the officer had no right to even request Appellant to take a field sobriety t~st or a breathalyzer test. In Whitmver, the arrestee hit a curb and crossed a solid white line to pASS a vehicle in front of him. in addition, the trooper utilized his speedometer for two-tenths of a mile rather than the three-tenths required by the Vehicle code to estimate that the drivers speed was approximately '/0 mph. 'l'he TriAl Court ordered, and the appellate court agreed, that all the evidence obtained pursuant to the Htap was i Lleqilll y obtained as there WIlS no probable CilU';(' to tlfll ["ve that Appellee wos in violation of the Vehicle Code. In commonwealth_.~Ulr.rQ.l.l, the situation was somewhat similar to the instant matter in that d police officer received an anonymolls tip, The officer was able to verify that the driver of the suh j",:t veh i c: Le tl<"l tho same name ot the parHon nlimeel in the tip. When the officer located the v('hlcLc It was parked outside a tavern. However, before arrestin<J the t;U"pcc:t, the officer waited for him to exit the establishment and begin driving. 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I H"i':1 F',.;.,.,[ l}l 8nllfl1rll Alllu i\rtllllltlf A rrOnNPY AI lAW "0' N fHO,.., STnLH HA"HI~DUI10, PfNN3YI VANIA 11101 71 123.. .'&1 'AJC 711 234<lfJ~ SANFOHO A. KHF.Y3KY. ESOUlHE I.AWHENCE J ROSF.N, ES(JUIHE Lh_JL...:.t..lL6.._1L:Ui....1 'LT..A...l. DATI':: __.__If..~g,~J~ _ 67 TO: -=rhUlcroUkL~~{)ja( 11,11.11/1__._ C'Ll VV\ \.1~~.~.,y,cl~ ~.t......Gflu.ili(OLJ)..e FAX I ;J(/D- .6S.&.;;.G f'ROH: ~~W&kh C) REMARKS: "h...--3~_:J...5'h~ - _CClli'Irf\, J. ~~ ~ar.JU ~.~-~_Th.Jud_-Q1Q.a:a.Dli1dwrtI..:-____ OF .._~---- NUMBER OF PAGES IN THIS TRANSH1TTAL INCLUDING COVER y SENDER'S FAX NUMBER: (717) 234-3650 IF ANY PACES ARE IU.EGtBLE OR HISSING, PLEASE CALL (717) 234-4583. I This messaqe is intended only for the use of the indIvidual or entity to which it is addressed, Gnd may contain information that is privileged, confidential and exompt from enclosure under applicable law, If the reader ot thIn messago is not the intended recipient, or the employee or aqent responsible for delivering the message to the intended recipient, you are hereby notified that sny dissemination, distribution or copying of thiR communication is strictly prOhibited. If you roceived this communication in error, plesRe notify UB immediately by telephono (collect), and return the original mes88qe to UN at the addror.s above via the U.S. PORtal Service. (We will reimburse postage.) Thank 'iqu. ORIGINAL ()oCUMF;N't' _ \1__ _ WILL _ '__m \llILL NOT BE I'CiRtARDED BV MAIL 08/ -: )/l';.t",t1:, it;: I,HI .! 1 ?' :.1 a._,l:.,1I ";,. ,I It- I ij.'l' ~. I f. t ' ,', ',I, '",..aE: n ': COIIJf(),.,<<AL'f'fI OF PKIIff.<;Y LV NIT A : rN '1'1111 COOR'l' 0' COIfIlOIf prAM : (.'UtflJJfRtJtND COUIl'l'Y, PB1INSY LV AN r A v. : : NO. 96-J566 CJVLL DOUGLAS A. IVSSlILL App#l llltnt : TO THE HONORABI.I! KP.VIN A. HRSS, JUOOP. OP SAID COURT: MEMORANDUM APPEAL OP LICKWSR ~USP!HSION 4' FACTS On January LO, L996 the Appellant, Douglas Russell, was approached by Officer Jeffrey O'Donnell of the Camp /lill Police Department; at the time, the Appellant was attemptinq to reach the crest of the h ill upon wh ich hi:s res ldance was located, The weather WIIS cold, windy and the road was Rnow covered; a ma jor storm had recently hit the area (See Attached A). The officer opened the door of the vehicle IInd believed that he smelled alcohol. He asked the Appe llant if there were any problems and the Appellant SAid that he WIIS tryinq to reach the crest of the 1'1111. At that time, the Appellant said that he would like to try It one more time and the otricer closed the door, A~lowl~ the Appellant to make an attempt to reach his residence. The Appellant was unsuccessful due to the weather conditions. At that point, the Appellant backed his vehicle to the bottom of the hill to make another attempt to his residence through the other entrance to the development. At that time, Officer O'Donnell, with backup assistance from Officer Ressler, placed the Appellant under arrest. Reasons tor the arrest, elicited by the officers at the hearing were blood shot eyes, slurred speech, and odor of alcohol. There was no evidence of an accident, erratic driving, or failure of field sobriety tests. Appellant then was taken to the booking center where he was asked to take a blood test. Appellnnt initially retus~d to take the test; subllequentl y, after conferr inq wi th counsel and when presented with the subject paperwork, he indicated that he would take the test, At that time. the officer refused to allow Appellant to take the test. 11, ISSUE Old the officer h~ve reasonablo aroundll to roquest Appellant to submi t to the "h(lm i CH 1 exnm i""ticn? (!iuqqctited responM! in the negative), 1):3. _.'. l'-"-it: ".,;--.II~ J ,,",[ .. i 1.1 r-'~-<oI-IE j't.1 Page J IlL ~\lSSlQH A review ot Cl2JlllllWlw~1;h'~'Hf'arrel~, (6"2 A.2d 324 1'196) which cited the c"I>e ot" Cgmmonweil.ltn_~llit;,lIllLlU:, 668 A,2d L ll'J (l99~) approvinqly for the propoRition that there must be legal justification for IIn invel>tigatory vehicle stop leads to "he inescapable conclusion t.hat the of rI C(.r had no right to even request Appellant t.o t.ake a chemtc/ll test, In ~i.tmYer, the arrestee hit n curb and crossed a solid white line to pass a vehicle in front of him, In addition, the trooper utilized his speedometer for two-tenths of a mile rather than the three-tenths required by the Veh ia In Code to estimate that tho drivers speed was approximately 10 mph, The Trial Court orderAd, and the appellate court agreed, that all the evidence obtllined pursullnt to the stop WllS illega II y obtained as ther:-e was no probable cause to believo that Appellee was in violation of the Vehicle Code, In Commonwealth VB. Fa.rr~. the situation was somewhat similar to the instant matter in that a police officer received an anonymous tip. The officer was able to verify that the driver of the subject vehicle had the same name of the person named In the tip. When the officer located the vehicle, it was parked outside a tavern. However, before Ilrrest inq the suspect, the officer waited for him to exit the establishment and begin driving. It W8S only after personally observing the suspect driving erratically that the officer stopped him and arrested him for driving under the influence. Under these circumstances, The Court found that the officer had acted appropri~tely, What is crucial is the operator's Ilbility to drive and there was no evidence in the case at bar that Mr. Russell drove erratically; to the contrary, the witnesses testified that there was no erratic drivinq anu that the operator was able to back the vehicle (on a snow-framed, icy roau) to rest at a point prior to the location of the arresting officer's car. In fact, the arrestinq officer allowed the Appellant to attempt to drive up the hill and it was only after his unsuccessful attempt that he took him into custody. Rrinqing his piCk-Up truck safely down the hill is evidence of good, not impaired, driving. Throughout their testimony, the witnesses contradicted each other, This is pArtiCUlarly important in llqht of the fact that witness number 2 (Officer Ressler) sat through witness number l's (Officer O'Donnell',.) testimony. While the backup officer (Ressler) said t.hat thu operator "sl idOl down the hill, his testimony clearly contradicted the arruKting officer's (O'Donnell) who inuicat.nd that the oper/ltur drove the vehicle down the hill, 08/ ::), 1 '.'~t; l b: (n) ; 1 7'~';,l ::~.~,l.l ':.~J l~ r 1'-"'[1 .. I I~ l " :'.' F''':'I-,t: (I':, I'l1ge J Drawing our attention to the indiclll of Intoxication the prosence of A nunlber of indicia (ulurrnd speech, odor of alc~hol bloodshot eyes, i1nd trouble locating the cards) I1S 811 belnc; present is too co incidental. 'l'he poiit:e know what the requ i roments are; they know the "right" thinqM to flay. Rut looking clo~nr at each item demonstr8toM the flow in accepting the testimony. It should be notod that thn abll t ty to detect the ulurred speech and the odor of alcohol was not availAble to witness number 2 (Officer Ressler) as he was, in his own admission, 10 feet away and was not even close enough to hear any speci flcs of the conversation. Thereforu, from 10 foet away, he could not smell nor detect slurred speech, His testimony wa~ at best 8 conjecture and, at worst misleading, Regarding wi tness number 1, his contact in terms of being able to detect sLurred speech and odor of alcohol was extremely limited according to his own testimony. On cros~ examination, the officer's answers demonstrated only one opportunity for a br.ief response from Mr. Russell prior to his arrest. Most of the discussion contact with the officers regarding statements from the operator was subsequent to his arrest and request to submit. Regarding the backing up negotiated turn, witness 1 indicated that the operator negotiated a turn where witness 2 said he did not even have to try as his vehicLe wau located before the turn. Both witnessed offered little (witness 1), if any (witness 2), credible testimony to sustain the abiiity to smell breath, soe blood shot eyes, or hear slurred speech. Regarding the failure to immediateLy locate the cllrds, the operator did produce his cards (insurance and driver's license). It should be noted that there WIlS no dropping of the cards and the tact that he passed over his cards at night in an interroglltion type atmosphere, in freezing temperllture is not extremely pre jud icial. The Appellant was and continues to be involved in a domestic separation and had not been sleeping well. It was windy and cold on the night in question. AdditionaLly, Appellant's eyes are often blood-shot with no connection to the consumption of alcohol. The defense offered vi~ual contact with the Appellant to ascertain that a) his eyes were blood shot or veins visible at the time of the hearing and bl that there was no odor of lilcohol implying that he was under the influence of alcohol lit that time. l~,: on :~-'J iI. nr.'[, .. J for '.: ,I .. F'..-..:.E fH:, Page 4 All of the above considered, it iFl c.lear that the Communwealth did not prove that it had r~~9onahle groundll to reque6t submill6ion to an blood test, Applying l!tUtUtU' and Farroll to the inlltent matter, It is difficult to argue that th~ officer mlSde a legally justifiable arrest ot Appellant. Tho lack of reasonAble grounds here i>> evident, for unlike the above cited caSAli. the officer never saw Appellant. driving in an inappropriat.e mllnner, Furthermore, in forrell th~ officer did not stop and arrest the operator unt.il ~ER he had perFlonally witnessed the drivers erratic driving, In two recent Pennsylvania decisions, it WllS held that if the officer "suspects" II Vehicle Code violation, it does not present reasonatlle qrounds tor requ~st A test: ~ommonwe41tn v. Hower Sox, 675 A.4d 718 (Pa. super. 1 C)1)6). See too, ~onweal th V. lIamil ton, 673 A. 2d 915 CPa. Super 191)6). In the present matter. the officer never saw Mr. Russell driving erratically. The initial stop being illegal, any and all evidenc~ ohtilined therefrom must be suppressed. IJ... CONCLUSIQ.tI Much pressure is imposed on our police and our Courts to protect the public from drunken drivers. Most otten this pressure results in justice. Here we have 8 man stuck in the snow on an icy night yardS from his home. No Hccident. No erratic driving; to the contrary, the Appellant carefully maneuvered his vehicle out of the roadway and sately down the hill. No failed field sobriety tests, Reasonable grounds is aimed at determining if the operator was driving under the influence. Blood shot eyes? The Court was aSked to view the operator's eyes in Court.. "no drinking. Slurred speeCh? The testimony is void of credible evidence that witness 1 had sufficient contact with the operator to determine that: witness 2 had no opportunity until after Mr. RUAsell was arrested and asked to take the test. Odor of alCohol? Witnesses may have smelled the odor, but this is not sufficient. The officers filled their testimony with buzz wor~s to attempt to maximize impact on the Court. Buzz words however, without substantial proof. shou ld not be used to convict or sustain II suspension. This CllGe demonstrates that, while certain buzz words were introduced, ilt a clo6cr review of the testimony there is D.Q right to use thOfH! wordE;. The Court is llmi ted to It rev i ow of the test. i mony and the test im<1ny WdU ." ther contradictin') or insutf icient.. --- INDBX TO WITNESSBS POR COMMONWEALTH Jeffrey O'Donnell Robert L. Re..ler DIRBCT 6 36 CROSS 13 39 RBDIRBCT INDEX TO BXHIBITS POR COMMONWEALTH Ex. No. 1 - DL36 form POR THE DBPENDANT Ex. No. 1 - not introduced Ex. No. 3 - photograph Ex. No. 3 - not introduced Ex. No. . - photograph Ex. No. S - photograph MARltBD 10 3 ADMITTBD 10 RBCROSS 1 THB COURT: Good morning. ~ MR. KABUSK: Good morning, Your Honor. 3 THE COURT I Go ahead. 4 MR. KRBVSKY: Your Honor, Sanford Krevaky on 5 behalf of the appellant, Douglaa Ruaaell. Aa Your Honor ia 6 aware, thi. matter i. for an appeal of the licen.e 7 auapenaion under 1547. Judge He.a, we have requeated a 8 continuanc~ when I found out on Friday that my client'. 9 father waa undergoing a major operation for cancer on that 10 day. 11 He ha. had the operation. He ait. right now l~ in the inten.ive care unit. I brought my client her. 13 becau.e the Court through ita directive indicated that I 14 .hould, and he's here. However, he i. in not the be.t 15 condition in the world in terma of focusing on thi. hearing. 16 We are aSking for a continuance. The iasue at thia 17 particular point ia whether or not the appellant can 18 participate in his defen.e of thia iasue. 19 THB COURT: And the defense is what? ~O MR. XRBVSKY: The defenae ia reasonable ~l grounda for the request to aubmit to a chemical teat. ~~ THB COURT: And he waa suspended then for ~3 violating the reque.t portion? This is a refueal ca.e? ~4 MR. KRBVSKY: That'a correct, Your Honor. ~5 THB COURTI Okay. What'a your re.pon.e to J 1 that? ~ MR. KABUSKI Your Honor, I will object to any 3 request for a continuance, and if I may give a few reasons. 4 One is the motorist and/or the attorney has past practice of 5 requesting continuances. 6 MR. KRBVSKYI I'm going to strenuously object 7 to that. I don't know what my past practice is, but it 8 certainly has not been to reque.t -- 9 THE COURT I This is getting personal. You're 10 both officer. of the Court, and I am bound to give you both 11 the credibility that you're due and the presumption that you 12 both act professionally, and that will be enough of that. 13 We are, however, going to proceed with the hearing. 14 If it appear. to me that Mr. Russell is 15 .omehow impaired or the difficulty with his fathur 16 interferes with the truth seeking function of this Court, I 17 will make that decision when the time comes. In the 18 meantime, proaeed. 19 MR. XABUSKI Your Honor, I'm sorry if I ~O offanded or -- ~l THE COURTI No. It's just that it's ~~ impossible for me to resolve those kinds of issues beaause ~3 you're going to say one thing about any past practice and ~4 he's going to say another, and you're both presumed to be ~5 telling me the truth. So it's simply impossible for me to 4 1 resolve the question. That's all. I didn't meant to become 2 upset. 3 MR. ltA.BUSIt: Your Honor, I think maybe I 4 would -- I'm going to request to approach the bench with Mr. 5 Itrevsky if we could have a brief discussion. 6 THB COURT: I'll tell you what, I'll do you 7 one better than that. Why don't we go into chambers? 8 MR. ItABUSIt: Thank you, Your Ho;uor. 9 (Whereupon, a recess was taken.) 10 APTBR RECBSS 11 THB COURT: All right. We can note then for 12 the record after discussions in chambers that the issue in 13 this case is whether there were reasonable grounds to 14 confront the defendant with the question of whether or not 15 he should submit to a test, and it's otherwise stipulated 16 that there was otherwise a refusal. Is that where we are, 17 gentlemen? 18 MR. ltRBVSItY: Yes, Your Honor. 19 THB COURT: All right. Go ahead. 20 MR. ItABUSIt: Okay. Your Honor, this is the 21 case of Douglas A. Russell versus Commonwealth of 22 Pennsylvania, Department of Transportation, 96-1566, licen.e 23 suspension appeal. By official notice dated and mailed 24 March 1st, 1996, the Department of Transportation notified 25 the motorist, Douglas Alan Russell, operator's license 5 1 number 13537616, that a. a re.ult of hi. violation of 2 Section 1547 of the Vehicle Code relating to chamical 3 te.ting to determine amount of alcohol or controlled 4 .ub.tance on January 10th, 1996, hi. operating privilege wa. 5 being su.pended for a period of one year. The Commonwealth 6 now call. Officer Jeffrey O'Donnell. 7 Whereupon, 8 JBPPRBY O'DONNELL 9 having been duly sworn, te.tified a. follow., 10 DIRBCT BltAMlNATION 11 BY MR. nBOSIt, 12 Q Officer O'Donnell, pl.... .tate your full 13 nam. and .p.ll your last nam.. 14 A Patrolman Jeffrey O'Donn.ll, O-d-o-n-n-e-l-l. 15 Q Where are you amployed? 16 A I'm employed by the Ne.t Shore Regional 17 Police Department. 18 Q And how long? 19 A I'v. been a policeman with the West Shore 20 Regional .ince it. inception Janu.ry 1.t of 1995, and Z've 21 been. police officer with almo.t 19 years of experience. 22 Q During the cour.e of your official duties 23 have you had occasion to inve.tigate an .lleged incident of 24 DOl on or about January 10, 1996? 25 A Yes, air, r did. 6 1 Q Could you t.ll the Court about that? 2 MR. KRBVSKYI Excu.e me, Your Honor, wh.t I'd 3 like to anticip.t. h.r. i. .ome te.timony th.t I b.li.v. may 4 be in.dmi..ible, .nd that i. I h.v. no obj.ction to Offic.r 5 O'Donn.ll t..tifying a. to anything within hi. dir.ct 6 knowl.dg., but if th.r. i. .om.thing that would b. from . 7 he.r..y p.r.p.ctiv., I would a.k that it not be .nt.r.d 8 through Offic.r O'Donnell. 9 THB COURTI Well, w. don't know th.t until w. 10 g.t to it. 11 BY MR. ltABl1SK I 12 Q Offic.r 0' Donn.ll, could you pl.... toll the 13 Court about that incident? 14 A At 2104 hour. I was di.patch.d by CUllII:l.r1and 15 County Communic.tion. to GI.n Ro.d in r.fer.nc. to a v.hicl. 16 that wa. having a problem on Gl.n Ro.d. At 2108 hour. I 17 arriv.d on the .c.ne. Officer Re..l.r and my..lf both 18 .rriv.d. Officer Re..l.r'. vehicle wa. to the bottom of 19 GI.n. 20 GI.n h.. an incline and .1.0 a turn to go up 21 .round to continue into the mann.r .r.a of Worml.y.burg. 1 22 th.n went to the p....ng.r .ide of a Pord pickup truck, ~3 id.ntifi.d my..lf .. . police offic.r, utiliz.d my 24 fla.hlight. I .1.0 knock.d on the window, and I open.d the 25 door. 7 1 At this time the operator was having a hard 2 time. He was stuck in the snow bank on the left side of 3 Glen Road. The defendant, who is seated here today with 4 counsel, was the operator of that vehicle. I asked him if 5 he wanted to back down. His respon.e was no. 6 I then backed away from the vehicle and 7 watched the vehicle continue to .pin its tires. I noticed 8 that the vehicle was sliding backwards. At this time 9 Officer Re.sler moved my patrol vehicle, which was behind 10 his originally parked near the bottom of the hill. I then 11 got in hi. vehicle and moved it out of the way. 12 The vehicle .1id down partially down on Glen 13 Road, and came toward the bottom of the hill. At that time 14 I ordered Officer Ressler to stop the defendant of the 15 vehicle. I then approached the defendant, along with 16 Officer Ressler, and he got out of the vehicle. 17 Again, at this time I detected a strong odor 18 of an alcoholic beverage on his breath. I observed hi. eyes 19 to be bloodshot. He was asked for his driver'S license and 20 registration. I detected his speech to be slurred. He 21 pulled out other cards than the cards that were requested in 22 his glove compartment box. He also passed his license two 23 different times while going through his wallet. 24 The defendant also claimed not to be 25 intoxicated or not to even be drinking that evening. The 8 1 ~ 3 4 !5 IS 7 8 9 10 11 1~ 13 14 15 115 17 18 19 ~O n ~~ ~3 ~4 ~5 defendant wa. .ub.equently placed under arre.t, and wa. advi.ed of the Implied Con.ent at ~1~1 hour.. Q Officer Re..ler I mean O'Donnell, how wa. he placed under arre.t? A He wa. plaoed in handcuff. And placed into the rear of the patrol vehicle. That vehiole wa. 3~0!5, a marked patrol vehiole. Q Then what happened? A At ~l~l hour. the defendant wa. advi.ed of the Implied Con.ent. Q How wa. he advi.ed of the Implied Con.ent? A Utilizing the DL~IS form, and Officer Re..ler wa. at the driver'. .ide window a. I read allowed to the defendant. Q Did you read word for word? AYe., .ir, I did. HR. KABUSKI May I approach the witne.., Your Honor? THB COURT I Certainly. THB WITNBSS I I have a oopy. BY MR. KABUSK I Q Oh, you have . oopy of thi. form? AYe.. Q I. thi. the .ame form? AYe., .ir, it ia. 9 1 MR. KABUSKI May I have that marked a. 2 Commonwealth'. Exhibit NUmber l? 3 (Whereupon, Commonwealth'. Exhibit No.1 . was marked for identification.) 5 MR. KABUSKI I move for the admi..ion of 6 what'. been marked Commonwealth Exhibit NUmber 1. 7 THE COURTI Any objection? 8 MR. KRBVSKYI No, Your Honor. 9 THE COURTI It'. admitted. 10 (Whereupon, Commonwealth's Exhibit No.1 was 11 admitted into evidence.) 12 BY MR. KABUSKI 13 Q Officer O'Donnell, you said you read the DL26 1. to the motori.t? 15 16 17 18 19 20 21 22 23 the chemical test, and he said no. I know my fourth 2. amen~ent rights. 25 Q Then what happened? A Ye., .ir, I did. Q What portion of the I:L26 did you read? A Line. 1, 2, 3, and .. On line 2 I filled in the chemical te.t was blood. Q Did you read those word for word? A Ye., sir, I did. Q And then what happened? A The defendant was asked if he would .ubmit to 10 1 3 J 4 5 6 7 8 9 10 11 13 13 14 15 16 17 18 19 30 31 33 33 34 35 A Se was transported to my station, and on J other occasions he was again given Implied Consent for the same DL36 form. And finally at 3304 the last offer was given to him, and he refused to sign the form notifying that he had been advised of the Implied Consent. Q What happened when you got to the atation? A Se continually would say he knew hi. rights. Se knew hi. fourth amendment rights, and he wasn't going to say anything. Q And then what happened? A Se told me that he had an attorney. I then gave him the opportunity to speak to his attorney. I contacted -- I dialed the phone for him and handed it to the defendant. Q Do you know whoae telephone number you dialed? A The telephone number that ha gave ma he stated was counael today, Mr. Krevaky. Q And then what happened? MR. KRBVSKV, I'm going to not object, Your Sonor, but -- THE COURT. It's conceded that there waa a refusal. Perhaps if he want. to tell us if there were any other signs or symptoms that he saw of the man being intoxicated. I think that would be to the point. 11 1 MR. KABUSKI Okay. 2 THE WITNESSI His speech was still slurred at 3 the station. I did inform him I was not violating his 4 fourth amendment rights. I informed him that I think he was 5 trying to believe that his fifth amendments rights of .elf 6 incrimination, and I explained that to him. 7 BY MR. KABUSK I 8 Q After he spoke to his attorney then what 9 happened? Did he take the test? 10 A No, sir. Until after he hung up with his 11 attorney, then about a minute or so latsr he said, all 12 right, I'll take the test. And that was at 2205 hours, a 13 minute after he refused to sign the form. 14 Q And prior to that you asked him at least four 15 times to take the test? 16 A Yes, sir. 17 Q And he responded by saying no? 18 A Correct. 19 MR. KABUSKI That's all of the testimony from 20 Officer O'Donnell, Your Honor. 21 MR. KREVSKYI Are there any other witnesses? 22 MR. KABUSKI Officer Ressler. 23 MR. KREVSKYI As to facts? 24 THE COURT I What don't you commence your 25 cross examination, and then we'll see where his case goe.. 12 ~. 1 CROSS EXAMINATION 2 BY MR. ltRBVSltY I 3 Q The date that this occurred, Patrolman 4 O'Donnell, was January 10th, is that correct? 5 A Of 1996, correct, sir. 6 Q And the weather at that point was extremely 7 cold, isn't that true? 8 A Yes, sir, it was. 9 Q And, in fact, there had been a major snow 10 storm just the day before, was there not? 11 A Two days prior on the 8th, sir. 12 Q To such an extent that the governor closed 13 the roads in our area, did he not? 14 A I don't recall what date he did close those 15 roads, sir. I don't have that information. I know in 16 rsbruary he did. 17 Q Would it be fair to say that there was a snow 18 storm of great significance just two days prior to that? 19 A Yes, sir, there was. 20 Q And that the cold remained in our area, an4 21 that the snow was covering a good bit of our highways? 22 A To that area, sir? To Glen Road? 23 Q Yee. 24 A Yes, sir, there was some slushy road 25 conditions. 13 1 3 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 30 21 32 33 24 25 Q Well, specifically regarding Glen Drive, there wa. snow over the better part of the road ju.t basically making a two lane road a one lane roadl ian't that true? AYe., .ir. Q Okay. A It'. not much of a two lane a. it i. though. It'. not really a very wide road going up around. Q I understand that, but ju.t so the judge under.t&uds, the condition of the road at that particular point? AYe., .ir. Q All right. And the temperature at that point wa. freezing, correct? A I would imagine it would have been, ye., .ir. I don't have the resulta of the US weather .erviee. Q All right. And the road. themselves were very icy? A They were slippery in some parts. I had no problem getting up that road, air, with the patrol vehicle. Q How far up the road did you go? A When I took the defendant home I went up that route, the exact route, and I had no problema getting up that road. Q Okay. And did you .ee -- you didn't note, at 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 least in your testimony, that there was any unusual muthod that he employed to try to get up that road. I mean, there wasn't anything unusual that he did? A I didn't see him going up the road, sir. Q No. You said that he tried to drive again after you first encountered him, and he couldn't make it? A That was backwards, yes, sir. He was trying to go forward, he stated. However, he wa. spinning the tires, and it was still going to the left, and he started sliding down the hill backwards. Q Right, but he tried to go up -- in front of you he tried to drive the vehicle up the crest of the hill? A Yes, sir. Q Okay. And there was nothing unusual that he did that would make hi. passing the hill more difficult than yours. You said you made it in your squad car? A Yes, sir. A police car. Q And, in fact, this hill is the hill that leads to hi. home, i. that correct? A Yes, sir. Q So after you first encounter him, he attempts to go back up -- with your acquiescence to go back up to reach the crest of the hill? A Yes, sir. Q And then he couldn't make it, and he tries to 15 1 go down the hilll i.n't that true? 2 A Hi. tire. were .pinning a. he wa. coming J back, .ir. 4 Q I under.tand, but then doe.n't he come down 5 the hill then? 6 AYe., .ir, he doe.. 7 Q All right. And at that point there'. nothing 8 in your police report that indicate., i. there, that he went 9 off the .ide of the road or got .tuck in any type. of 10 embankment. on hi. way down? 11 A No, .ir. 12 Q And there wa. no erratic driving coming down 13 there, wa. there? 14 A None that I could .ee, no, .ir. 15 Q And than he .top. at the ba.e of the hill 16 near Patrolman Re..ler'. .quad car? 17 A No, .ir. He wa. heading toward -- he wa. 18 .liding backward.. Patrolman Re..ler'. vehicle wa. moved by 19 me. My vehicle wa. behind Patrolman Re..ler'.. Patrolman 20 Re..ler moved my vehicle forward. I moved Patrolman 21 R...ler'. vehicle back further and partially out onto Walnut 22 beeau.e I didn't know how far that vehicle was coming up the 23 road. 24 Q I under.tand, but you testified at a 25 preliminary hearing on this matter, did you not? 16 1 A Yea, .ir, I did. ~ Q All right. And at the area that he atopped 3 in, okay, that Mr. Ru..ell atopped in, that wa. not the area t where the car wa. parked? He atopped before that area, did 5 he not? 6 A To where the patrol vehicle waa? 7 Q That'. correct. a AYe., .ir. 9 Q Okay. 10 A Ju.t before. 11 Q All right. So the fact that you moved it wa. 1~ in anticipation of perhap. aome problem.. Not the fact that 13 he came there and almo.t hit the vehicle? 14 AYe., .ir, that'. correct. 15 Q Thi. road going up from -- it come. off of 11 16 and 15, i. that correct? 17 A It i. 11 and 15, 11 and 15, and then Glen 18 turn. off of the right. 19 Q That'a what I meant. Okay. So Glen come. 20 off of 11 and 15? ~l A Correct. ~2 Q All right. And Glen Road i. an extremely 23 windy road, i. it not? 24 A Glen Road i. only one turn going up, ye., 25 air. 17 1 ~ 3 .. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ~O 21 ~~ H ~.. ~5 Q And that turn, at least the initial dogleg is a major turnl is that true? A Yes, sir. It is over a 90 degrees turn. Q All right. And Mr. Russell effected that turn coming down the hill in those conditions, did he not? A He was not ~bove that turn when we got there. He was in that turn. Q Well, let me just see -- I'm going to show you what'. been marked as Petitioner's Exhibit ~. MR. ltRBVSltYI May I approach the witne.s, Your Honor? THE COURT I Sure. BY MR. ltRBVSltY I Q Patrolman O'Donnell, I'd like you to look at that picture and see if you recognize that area. A This i. looking down the hill toward Glan. This doesn't depict the actual turn itself. Q I understand that. And that, in fact, is where his vehicle waa when you first encountered him, was it not? A No, sir. Are you talking where this vehicle is being taken from the picture is? Q Yes. A No, sir. Q All right. Let me show you another picture. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thi. i. petitioner'. Exhibit 5. 00 you know that area? AYe., .ir. o And what doe. that depict? A That'. depicting Glen Road fram 11 and 15 or Walnut Street going up Glen. o Okay. And i. that the turn you're talking abou t ? AYe., .ir. o And that turn right there wa. wbere the vehicle wa.? A If you'd like, I could come up and point to approximately where it wa.. o Sure. A Sure. HR. ItRBVSItYI May tbe appellant came up witb me, Your Honor, to .ee what be'. .bowing? TBB COURT I Yeah or you can .how him in a mJ.nute. TBB WITNBSS I Tbe vehicle wa. approxi_tely here. BY HR. ItRBVSltY I o So would you cla..ify tbi. a. a turn off of 11 and 15? A o I. it a turn? Ye.. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,-., AYe., .ir, it i.. a Okay. And then you go up and you make another, I gue.. a right-hand turn off of that, i. that correct? A When you come up thi. -- thi. i. a -- like a 45 branch. a Right. A To here, and thi. turn. here, and this goe. up, correct. a And you're .aying that's about a 90 degree turn? A It'. probably a little bit more than a 90 degree turn. a And i.n't it, in fact, true the appellant'. vehicle wa. above thi. turn up here? A No, .ir, it wa. not. a Where would he be? A I already stated. Approximately here, sir. a All right. And how far from the area where you're pointing to to the bottom of, I guess it .ay. Walnut Street? AYe., .ir. a How far? A How far what? a I. that from where you pointed to the bottom 20 1 ol! u 2 A Sixty, maybe .ixty-five, .eventy l!eet, J .omewhere in that area. 4 Q So it'. muoh longer than it really look. S there, i.n't that true, in that pioture? IS A Prom here, ye., .ir, it i.. 7 Q Okay. I'd like to al.o .how you, Ol!l!ioer 8 O'Donnell, Petitioner'. pioture 4. Okay. Are you l!amiliar 9 with that? 10 AYe., .ir. That'. looking down at Glen to 11 Walnut in the background. 12 Q Okay. And would you indicate to u. where the 13 eppellant'. vehicle wa. parked when you came? 14 A I'd .ay .omewhere by thia gra..y area here, 15 right up in bere. 16 Q All right. Now, that wa. my under. tanding 17 l!rom the preliminary hearing, but you're now .aying that he 18 wa. parked down over here? 19 A Your Bonor, I'm looking at two dil!l!erant 20 picture. l!rom two dil!l!erent anglea, and the depth on both ol! 21 the.e picture., il! he'. a.king l!or an exact location on it, 22 I could not tell you the exact location other than the 23 ap~roximate area becau.e of the .now, and alao the picture. 24 are not depicting the .ame depth. 25 Q I'd ju.t like you to ahow the judge again on 21 the que.tion.. there, right? A Q A Q turn? A Q A Q 22 Q A Q the vehicle? A Q night? A Q u8ing? A Q 23 1 ~ 3 .. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ~O 21 ~~ ~3 24 ~5 - . nervoua when going through their cards? A That is correct. Q After the operator showed you hia driver's license, did he then produc. the registration card? A No, sir, he did not. Q And did you .ak him for it? A Yea, air, r did. Q And what was the problem with that? A Ue waa unabl. to locate it. Q Did you subs.quently locate it? A No, sir, I did not. Q Did you look for it? A Yea, sir, I did. Q Okay. So if it wasn't found through any .rror on his part -- or the location of it was not through any error on his part, but the fact that it wasn't, in fact, there? A I checked the papers that he had there by the glove box, and that was the only area that I went through, correct. I didn't know if he had them sClllewhere els.. Q Okay. And after he produced that, what was the next exchange, if any, that you had with him? A I asked him to turn his vehicle off and step from his vehicle. Q Okay. 24 1 A X had detected other indicator. at that time. ~ Hi. .peech wa. .lurred when he wa. re.ponding to me. 3 Q Well, you a.ked him to turn hi. vehicle off, . and what did he do? 5 A Se did .hut hi. vehicle off. 6 Q And then what? 7 A X a.ked him to exit the vehicle. The door 8 wa. already opened. 9 Q And then what did he do? 10 A He exited the vehicle. 11 Q And then what? l~ A He wa. placed under arre.t for DUX. 13 Q Okay. And then what happened? You took him 14 in there and a.ked him to take the te.t? 15 A At ~1~1 from the rear of the patrol car he 16 we. a.ked he wa. read the DL~6 form. 17 MR. ItRBVSltYI That'. all X have. Thank you. 18 MR. ItABUSltl No redirect, Your Honor. 19 TBB COURTI Thank you, air. You can .tep ~o down. ~l MR. ltRBVSltYI May X have a moment to confer ~~ with my client? X have no te.timony to offer at thie point, ~3 Your Honor. ~4 THB COURT: Okay. ~5 MR. ItABUSltl Your Honor, the Department wa. 25 1 going to call another witn..., Officer Res.1er. 2 THE COURT I Ok.y. Proceed. 3 Wh.reupon, 4 ROBERT L. RESSLER 5 having b..n duly sworn, testified .s follows I 6 DIRECT EXAMINATION 7 BY MR. KABUSKI 8 Q Officer ~essler, pl.... state your name, and 9 spell your last name? 10 A Robert L. Res.ler, R-e-s-s-l-e-r. 11 Q Where are you employed? 12 A I'm employed with the West Shore Regional 13 Police Department. 14 Q Por how long? 15 A I've been employed since 1987. Origin.1ly 16 with Wormleysburg, and then after the merger with We.t Shore 17 Regional. 18 Q During the course of your official dutie., 19 did you have an occa.ion to investigate an alleged incident 20 of DUI on or abo~t January 10, 1996? 21 A I did. At the time myself and Officer 22 O'Donnell were working, and we received a call of an 23 incident on Glen Road. We both responded to that scene. 24 Q And you responded? 25 A That's correct. ;1'. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /', Q And what did you .ee? A I believe we arrived at or about the .ame time. I think I arrived a few ..cond. earlier in front of Officer O'Donnell. I parked at the bottom of Glen Road off of Walnut Street, which is the old bypass off 11 and 15. Officer O'Donnell was behind me, and at that time Officer O'Donnell fir.t approached the vehicle on Glen Road. Q Then what happened? A There was a conversation that took place. I wa. walking up the hill towarda the vehicle, and the vehicle wa. .pinning its wheela. Q And then? A And then Officer O'Donnell a.ked the operator, who ia the gentl~ .itting here in the courtroom, for hia regi.tration and licen.e. I believe he found his driver'. lieen.e, but I'm not aure about the registration. Q Did you near the motorist? Were you near the motorist? A At the time, no, I wa. not. Q Okay. A Not until after the defendant exited the vehicle. Q And then did you approach the witness? Did you get near -- or the motorist? 27 _.,. ~ .-'" 1 A I was right beside him as Officer O'Donnell 2 and I, you know, placed him in the back of Officer 3 O'Donnell'. car. 4 Q Did you notice anything about. the motorist? 5 A I did smell an odor of alcohol, and he did 6 have a slurred speech whenever he spoke. 7 Q You said you noticed that about the motorist, 8 then what happened after the conversation with Officer 9 O'Donnell and the motorist? 10 A After the conversation Officer O'Donnell 11 placed him under arrest for a suspected driving under the 12 influence of alcohol. 13 Q And how did he do that? 14 A He informed him that he was being placed 15 under arrest, and I believe the handcuffs were applied. And 16 we helped put him in the back of the patrol vehicle. And at 17 that time Officer O'Donnell entered his vehicle, and I 18 believe he got out the form DL26 and read him the -- read 19 him verbatim the form. 20 Q Did you have anything to do wit.h the request? 21 A Other than just standing there listening to 22 Officer O'Donnell read it to him, no. 23 MR. KABUSKI No further questions, Your 24 Honor. 25 MR. KREVSKYI Thank you. 28 1 2 3 . 5 Ii 7 8 9 10 11 12 13 U 15 16 17 18 19 20 21 22 23 2. 25 ~. CROSS EXAMINATION BY MR. ICRBVSICY, Q Officer Re..ler, you were the fir.t vehicle there, but Patrolman O'Donnell wa. the fir.t to approach the appellant, i. that correct? A That'. corr.ect. Q Okay. And would you too indicate that, a. the previous witne.. ha., that Mr. Ru..ell'. de.cent from the road involved turning a 90 degree turn, effecting a 90 degree turn? A That'. what he wa. attempting to do, ye.. Q But did he not do that to get down the -- to the bottom of the road eventually? A He didn't hit that fir.t turn, no. He did not arrive at the firat turn, which i. that .harp turn. He wa. on hi. way up Glen Road to make the turn, but he never made it there. Q Well, did you hear the testimony of Patrolman O'Donnell? A Ye., I did. Q Okay. Did you hear him .ay that, ye., in fact, he did have to make that turn, that he wa. at the top of that? A He was at the turn itself, but he didn't make the turn, no. 29 ~ 1 Q When you approached the vehicle, Officer 2 O'Donnell wa. in contact with the operator? 3 A He wa. .peaking with him, ye.. . Q Okay. And he -- according to you and 5 according to him, the fir.t thing that he .aid wa., he being 6 the officer, wa. give me your regi.tration and driver'. 7 licen.e, correct? 8 A I did not hear exactly what he .aid. 9 Q Okay. Well, you .aid that the officer a.ked 10 the defendant for hi. licen.e. That'. what you te.tified 11 to. 12 A That'. correct. Normally you a.k the per.on 13 for their license and regi.tration. 1. Q All right. Well, then you didn't hear him 15 .ay that? 16 A Okay. Ye., .ir. 17 Q I'm ju.t trying to get what happened, that'. 18 all. What you .aw happen. Okay. So you didn't hear that? 19 A Not verbatim, no. 20 Q And, in fact, at that point Mr. Ru..ell 21 wa.n't talking to Officer O'Donnell, but complying with hi. 22 reque.t, going through hiB cards? 23 A He waB doing both. He was talking and going 24 through hi. cards. 25 Q And what did he say? 30 1 A I didn't hear what he wa. .aying, but I could ~ hear him talking, but I couldn't hear what the word. were. 3 Q And you weren't in the vehicle at that point? 4 A No, .ir, I was not. 5 Q And about how far away from the vehicle were 6 you? 1 A probably approximately 10 feet to the rear. 8 Q And then at that point once he provided the 9 information he got outeide the vehicle, i. that correct? 10 A As I recall, I don't remember him exiting the 11 vehicle until at the end whenever the vehicle wa. coming 1~ back towards our vehicle.. 13 Q Right. So then after he provided the 14 registration and stuff like that then the door was closed? lS A I don't think the door was closed. I think 16 it was opened. The driver'S .ide door. 17 Q Okay. Well, Officer O'Donnell said that he 18 had, I believe, clo.ed the door and tried to make a pass 19 going up again? ~O A That i. -- well, he alao opened up the ~1 pas.enger .ide to .peak with the defendant. ~~ Q Oh, so he was on that side? ~3 AYe.. ~4 Q Okay. And then he clo.ed that door to allow ~5 h~ to make to attempt to pa.., i. that correct? 31 A Q anything? A vehicle. Q A 32 1 coming around the turn. 2 Q And then he geta outaide the vehicle again. 3 Ia that at the requeat of Patrolman O'Donnell? 4 A Yaa. 5 Q And that'a when he placed him under arreat? 6 A That ia correct. 7 Q Right after he got down then? 8 A Yea. 9 Q All right. And there waa no other 10 converaation between them except the fact that you're under 11 arre.t? 12 A Other than he kept the -- the defend6nt kept 13 atating about hia fourth emendment righta. that he knew hia 14 right.. 15 Q When did he atate that? 16 A Well, I heard him aay that one time. 17 Q The fourth emendment right he waa aa.uming 18 wa. for him to take the examination though? 19 A That'a what h. meant, yea. 20 Q I underatand that. Okay. So tho.e 21 atatam.nta were mad. aubaequent to hia arreat, right? 22 A Yea. 23 Q All right. So you have teatified aa to the 24 whole contact or any atatamenta that were made by Mr. 25 Ruaaell prior to hia being arreated, have you not? I. there 33 1 anything w. mi..ed? 3 A No. 3 Q And th.n the only time that Mr. Ru...ll wa. 4 t.lking th.t you w.re .round, you were ten f.et .way from 5 him, and you couldn't h.ar what h. wa. ..ying anyway? 6 A Origin.lly when he wa. in the vehicle th.t'. 7 correc t . 8 Q Th.t'. wh.t I'm talking about, and th.n h. 9 wa. .rr..t.d .fter th.t, right? 10 A Right. 11 Q And then h. w.. ..k.d to t.k. . br.ath.lyz.r, 13 right? 13 A I'm not .ur. which t.at h. w.. a.k.d to t.k., 14 wh.th.r it w.. bre.th or blood. 15 Q Ok.y. A ohemic.1 te.t? 16 A Th.t is corr.ct. 17 Q And he ....rt.d hi., quote, fourth am.ndm.nt 18 right? 19 30 U 33 33 :l4 35 A Y... MR, ltRBVSltY: Th.t'. all I h.v.. MR. ItABUSIt: Nothing, Your Honor. THB COURT: Thank you. You c.n .t.p down. Anything al..? MR. ItABUSItI Nothing, Your Honor. TUB COURT: And, Mr. Itrev.ky, .ny te.timony? 34 1 MR. KREVSXYI I gu... of a d~on.trativ. 2 nature, Your Honor, I would a.k the def.ndant at l.a.t to b. 3 called up .0 that you could look at him and look at hi. ey.. 4 and .e. what hi. ey.. look like thi. morning and .m.ll hia 5 breath if you want to .ee that he, in fact, had not be.n 6 drinking and hi. ey.. are blood.hot. So if you would b. .0 7 kind a. to do that, Your Honor. S THB COURTI Well, we'll note that that'. .0. 9 We also know that the man has b..n under a lot of emotional 10 pre.sure having to do with his father. How I can .ort out 11 the way hi. eyes look thi. morning i. impo..ibl. without his 12 testimony. Anything else? 13 The fact of a refu.al, I heard some te.timony 14 that he had changed hi. mind at 80m. point and eventually 15 agreed to take this te.t. That there i. a refusal is 16 stipulated, am I correct? 17 MR. XABUSXI (nodded affirmatively) lS MR. KREVSXYI That is ba.ed on, Your Honor, 19 my understanding of the ca.e law. 20 THE COURTI To what case do you have 21 reference? 22 MR. KREVSKYI Well, I'm not specifically 23 referring -- I can't think of the ca.e off the top of my 24 head. Basically that, Your Honor, would be that if a 25 defendant a.ks to talk to his lawyer and sub.equently agree. 35 1 to take the .xamination, that that would b. a r.fu.al. 2 TUX COURTI I n.v.r h.ard of .uch . c.... 3 MR. KABUSK I Your Honor, I h.v. two c.... 4 r.g.rding your qu..tion. If th.r.'M a ..cond t..t off.r, 5 th.t t..t i. u the off.r J,. r.vocabl. unl... the t..t i. 6 .ctu.lly comm.nc.d -- b.ing admini.t.r.d. That i. the 7 aen.te. (phon.tic) c.... 8 TUB COURT I I'v. got to .top t.lking. I gave 9 up giving leg.l .dvic. year. .go. I. the record clo.ed or 10 i. it not? 11 12 13 14 15 16 17 (Wh.reupon, Mr. Krev.ky clo..d on beh.1f of 18 the D.f.ndant.) 19 (Whereupon, Mr. Kabu.k clo.ed on b.h.1f of 20 the Commonw.a1th.) 21 THE COURTl Well, just to give coun.e1 a 22 1itt1. guidance in t.rm. of filing memo. if they choo.. to. 23 I ju.t make this on. ob..rvation. I .gr.e that both .. a 24 matter of law and a. a matter of equity the odor of .lcohol 25 .tanding alone may not warrant confronting the defendant MR. KABUSKI Y.., Your Honor. MR. KRIVSKYI The record i. olo..d. TUB COURT I V.ry w.ll. MR. KABUSKI I would like to .rgue to the Court if I could. THE COURT I Yeah, .ur.. 36 -.. c"; .-. t- , tJ 11.{ u. t( , i i: -, c:(. ) , .. . , . ,.:J Ci:'t .' .. :-~ " r- -) 0 ...., I .J ~- -../