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Home My WebLink About96-02269 ;,;., j , ' ~ " J l ,.. , ~ ).... j '" " I ,/ ,/ / " ,I COMMONWEALTH OF PENNSYLVANIA, DBPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PBNNSYLVANIA NO, 1f, ',(,I..{..'/ fit I"~ (!....Jr:~At'--. v, BRYAN ROBERT NESTER, Appellant LICENSE SUSPENSION APPEAL ORDBR OF COURT " AND NOW this I O~ day of \-n \(L~j , 1996, upon consideration of the within APPEAL OF OPERATORS LICENSE SUSPENSION, it is hereby ordered that a hearing shall be held regarding this matter at on the j~ day of ~li\a , 1996, at,2:C(\ : 0.-. /p.m. in Courtroom No, ,~ of the Cumberland County I : Courthouse in Carlisle, penneylvania, An automatic supersedeas is i I in effect pursuant to Vehicle Code Section 1550(b)(1) until such I i , time that this honorable court resolves this appeal, , 1 i I I !I I / BY THE Qt>URT I \VI ~/ J, Distribution: 1 -PA Dept, of Transportation, Office of Chief Counsel, Room 103, Transportation & Safety Building, Harrisburg, PA 17120 -Patrick F, Lauer, Jr" Esq" 2108 Market St" Camp Hill, Pa 17011 r 11 , II Ii I " I~ I, , ' \ t " , " j! )i 1 '.. , , " jil. COMMONWEALTH OF PENNSYLVANIA, I DEPARTMENT OF TRANSPORTATION, I BUREAU OF DRIVER LICENSING, I Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA :; NO, v, BRYAN ROBERT NESTER, Appellant ATTORNBY VERIFICATION LICENSE SUSPENSION APPEAL Undersigned counsel for Appellant, Patrick F, Lauer, Jr" , ,I Esquire, hereby verifies and states that: He is the attorney for Bryan Robert Nester, Appellant, He is authorized to make this verification on Appellant' s 1, " 2, " 'I , 3, behalf; The facts set forth in the foregoing Appeal are known to him and not necessarily to his client; 4, The facts set forth in the foregoing Appeal are true and correct to the best of his knowledge, information and belief, 5, He is aware that false statements herein are made subject to the penalties of 18 Pa, C,S, 4904, relating to unsworn !! falsification to authorities, :1 submitted, i II ! , " ck F, Lau , Jr, Esquire Market Street, A tec Building Camp Hill, Pennsylvani~ 17011-4706 lOll 46430 Tel. (717) 763-1800 ATTORNEY FOR APPELLANT ! Date: -y. - 2- ~ 016' , " IXHIIIT A , ~, , r { I' , " - .....~ COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bu~e'u of D~ive~ Licensing Ha~~isbu~g, PA 17123 APRIL 09, 1996 BRYAN ROBtRT NtSTtR 10 GORDON DR ~bDa8a4loaDOD4~a DOlo D4/D2/lo"b 2lo47~DD7 :L2/13/l,'b? CARLISLt PA ].7013 f D..~ Motorist I As a result of your violation of Section 1547 of the Ve- hicle Code, CHEMICAL TEST REFUSAL on 03/24/1996, you~ d~iving p~ivil.ge is being SUSPENDED fo~ a pe~iod of 1 YEAR(S), In o~de~ to comply with this sanction you era ~equi~ed to ~eturn any cu~~ent d~ive~'s license, learne~'5 pe~mit and/o~ telllPOrD~y d~ivQI"s license (came~a card) in YO',I, possession no late~ than the effective date listed. If yo~cannot COIII- ply with the ~equi~elllents stated above, you are.~equi~ed to , submit a DL16LC For.. or a sworn affidavit stating that yOU a~e awa~a of the sancUon against your driving p~ivilege, Failu~e to comply with this notice shall ~esult In this Bu- ~eau referring this matter to the Pennsylvania State Pollee for prosecution unde~ SECTION 1571(8)(4) of the Vehicle Code, Although the law mandates that you~ d~lving privilege 15 un- de~ suspension even if yoU do not su~render YOu~ license, Credit wUl not b~in until all cur~ent dr1v!~'S licenu product(s), the VLl\LC Form. or a letter acknowledging your sanction is ~eceived in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE DR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT, IF YOU DO 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 Suspensionr 05/14/1996, 12101 1.11, ,.-.tI, ---... I, , , " , " i'. ..................4................................................. IWARNINGI If YOU a~e convicted fo~ driving while your 11cen.e i. I Isuspended. the pe~11ties will bel not less than .. deys i.,ril.n-I I.ent and e .1.000 fine and an additional 1 Year lus"nsion. I ..................................................................,. " '. .I 9601111841800 0498 ---- Pleese see the enclosed application for restoration fee in- foraation, You have the right to appeal the Department's action to the Court of Common Pleas (Civil Division) within 50 days of the aail date (APRIL 09, 1996) of this notice, PLEASE NOTE thet this Civil Appeal is in addition to any appeal YOU have to file from the cri.inal conviction, You must follow the in- structions liste~ ~dlow according to your i~ividual situ- ation: 1, PENNSYLVANIA RESIDENT If YOU are a resident of Pennsylvania, you must file an appeal with the Court of Com- lIIon Pleas in the County of your residence, Sending a copy of the appeal which you filed with the Court, to the Depart- lIIent, will postpone the Department'. action pending a final decision by the Court if the appeal was filed within the re- quired 50 days, However, if your privilege to operate a commercial motor vehicle has been DISQUALIFIID, a signad supersedeas by the jUdge must accompany your appeal, 2, NON-RESIDENT - If YOU are not a resident of Pennsylvania, YOU must file an appeal with the Court of Common Plaas in the Pennsylvania County whera the violation occurred, Sending a copy of the appeal which YOU filed with the Court, to the Department, will postpone the Department's action pending a final decision by the Court if tha appeal was filed within the required 50 days, \' THE APPEAL MUST DE SENT BY CERTIFIED MAIL TO: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL ROOM 103, TRANSPORTATION' SAFETY BUILDING HARRISBURG, PA, 17120 Sincerely, ~~.~ Rebecca L, 8ickl.~, DSrect.r: Bureau of Driver Licensine 960881411000491 ---- " . " . ~ SEND FEE/LICENSE/DL-16LC/TOI Depart.ent of Transportation Bureau of Driver Licensing P,O, Box U6915 Harrisburg, PA 17106-1695 . INFORMATION C7100 Pittsburgh Ar.. Philadelphia Are. Harrisburg Ar.. Toll Fr.. T,D,D, AM TO 6150 PM) - 412-56!1-I5670 - 215-691-1100 - 717-717-5150 1- 100-952-4600 1- 100-221-0676 i " t " I , , I , j ,I , 1'1 . , ar. .!t. , " ~ COMMONWIALTH'I I EXHIIIT \ '. CHlalCAL lilTING WARNINGS AND nEronT 0' "UUIAL TO IUI...TTO CIlEu.eAL TE 5 illiG AS AUTlIORIUD IY 0' litE VEHICLE CODE ~)lCIIOfl '~41 1WI1 III 1IA110f .,11111 ,11I" ] 1I0UlI 1"lA's,- - ;;U;;;;;\"Ol'filAl"" KRYAN KIIKI:KT ~_~ 11 " - M.L:.- .l..L-lJl.L A:~~I~KUllN IIKIVI. .----~['-.~-.-l~~--=--t~l!1!:Iis,1 _C!!Y~~=~ s:,::~,. ':~I~~~1 DIlIVU NUIU.II SIAl( 1II1" 1111 ",UUII' DAlI 5UCIAl 5' CUll" Y HU...,n ~ ___-----.-- .- -- ~. 1,"""I!"-l--,~'~'-J ~j;:i"- -II" l]i-' .; I.~-'II(~- ;" ~ l/ .bh.. _'.!.J.. ____' U_t..J.[. I ,..... ...1Il~........ ... II. """ ",??1o, II'." I.. ..,~'''' ".... 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GrIllnO pndogo ~..IOI_...Igo1.ollOf...lng.cM..d /~L .:.'... L/ .1 A $QMIMloIOt"* ~ ~....a\ h ...-,-,.- . !. ArrlDAVII TIIo _ _101............ ...., ."..1 lot "'''''II"rduf J.. ...~...,"" 01....... "'. a>n~.lIod .ub._." .....,"" .1_"''' 3/31.1... VohidO COdt,.,1lI ..... ..... ''''''''_Il'""nd. .. ....... .,., II.. .bu\lO ...,...., h.d -.,hinll _..ng Olin oclutl pt.,...n1con.ol.' II.. "..,.....,... . moI:W.... wh'" undtt'" lfl~ ol.~ohol Of . cOllltullud 'Ub''''f~ 01 bu" '" TIIoI'" _ nomad _I., ...Iowol..d.. on .atolo,,1 " .'.Ii' It. OVU"... 01 p...."il'" .1 "'1 "''''10 .,woIwd '" · podol'lII1 ,....,.od ......... .1. __ Itol~ 01 .... ..Itd 2 1he Ilbowe rftOiN~1 WIII".,..ttd ID lubtnH to d.oma ''''ll'lg'l IU'loUled b1 Sec;1IOn 154101 '11 V"h,do com 3. The Ibove motr.rli'." tnfofmed bt' poIa o,~ of I..chufluul.." ."rWngl r:on\alned In pn"Ql'ph 3 ."d 4 lbo'lo . ThO _ nomad......... ,ot..._............ dll...Ic.tI....''lI orfltllll NOTl: T'" ,or...,.. 'leolhl. ,.,..1. ..1 . ,.1...1.. .ubmlll..h. ......Ieol..... Y.. ",u.' .11I1 ,I.. "'. ""0,1"0. .,...,'....., .. 11M" ........... ..,...... ,.ve..",. ",a. ,....".11 &he Ind""dUII .11 .,...lIng . o"",,,,.clal ....... ..hIe" .hM. h.wln, In, .Ioohol.. · .......... IU",'IMI '" t..lI, '.II*,", yf'''' mull .1.0 DUmpl.'. 'h......... .ld..1 \l\1.11N"', .,I ., L Olfl* SigMlUe~' ~ "b A.. yL L 01""" I..... ~ STEVEN 0, KINGlliIQIIGl' (I,,,, Of P..'I~ J\j".di<oon MIDDLESEX 'NP, I i i L Uodg. N........ __ n Ph",.. Lll1IJ~9-7191 Moo~'9 AddI... ...llILJI. MIOOLUItI. .n"D...J1~..U____ CARLISLE. PA. .7011 ,...... .. 0.... ........ "M.pIN'-lOn _.. _ LDnOInI '0"'- I.......... 'A mOl N... ""'......_10<,...._001--....-.'-.......-...-.. ,'..."""01_,...... 1......_..__...-.....--... nlOll"" .,.owe.. ..............,.. htlwe ........, nII'OIIM MAY II Dl/IlUCAlID ADOlllOHAL surrllF.S or T119 ronllMAY II srcunlD BY CUMPUIIHQ IonMOS IliA 96.2269 CIVIL TERM who then pulled behind petitioner and stopped him, OffIcer Klngsborough obtained petitioner's driver's license and registration, Petitioner asked the officer why he was stopped, The officer told him that his turn was awkward, that he had Inadequate lights, and that he had driven on the berm of the road, Petitioner then offered that he had been drinking In a bar and he asked the officer not to arrest him for driving under the Influence. The officer detected a strong odor of alcohol from petitioner'S breath, glassy and blood shot eyes, and slightly slurred speech, The officer asked the petitioner to take field sobriety tests. Petitioner refused, The officer arrested petitioner for driving under the Influence, Petitioner Initially agreed to take a chemical test but after Officer Klngsborough read him his rights under the Implied Consent Law from Form DL.,26, petitioner said he would not take a test. Petitioner told the officer that he felt he had been arrested Illegally and that the officer had no probable cause to arrest him. The officer took petitioner to a booking center where there was testing equipment. The officer fe-read petitioner his rights under the Implied Consent Law and petitioner again refused to take a test. In order to sustain a license suspension under Section 1547(b)(1) of the Vehicle Code, the Department must prove that the licensee (1) was arrested for driving under the Influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that the refusal would result In a license suspension. Department of Trlnlportatlon, Bur.au of Drlv.r L1cenllng v, Tomczak, 132 Pa. Commw. 38 (1990). In K.ane v, Commonwealth, Department of -2- ,-,1\ I :1 i I :t , i' 96-2269 CIVIL TERM Tranlportatlon, 127 Pa. Commw, 220 (1989), the Commonwealth Court stated: In order to Justify the suspension of operating privileges for refusal to submit to a breathalyzer test, an arresting officer must have "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, , , ," The test for reasonable grounds Is not very demanding. If a reasonable person In the position of the arresting officer, viewing the facts and circumstances as they appeared to the arresting officer, could have concluded that the motorist had operated the vehicle while under the Influence, such reasonable grounds are established. (Citations omitted). We conclude that Officer Klngsborough had reasonable grounds to believe that petitioner was operating his vehicle while under the Influence of alcohol, After petitioner was arrested for driving under the Influence, he was specifically warned that a refusal to take a test would result in a one year license suspension. Petitioner refused to take a test. Accordingly, the following order Is entered, ORDER OF COURT AND NOW, this'']... b day of June, 1996, the appeal of Bryan Robert Nester from the suspension of his driving privilege for one year, IS DISMISSED. By the Court, ! 'VV~Uv;r Edgar B. Bayley, J.{ / .3- ('.'.: FII.r.rJ . C~f:Cr: 'r; ,.. '" '! ~ 1 " "'~Ii/n'{ ~.: I % ,.II.':! Ilj i: t,t ill ....~ I).. '1 '<:: ~ ~ ~ ClJl/Ii';.l",'.1 ,I " ..I' l i 1'['1"'''''111.''''1' .lill..; .,,1'11\ 1 J r:- < , " <, " " ,i ..-'~ __i i\ .1, f !".;' " " < I, :/ :' ,'J ,', "\ .-.J\ COMMONWEALTH OF PENNSYLVANIA, I DEPARTMENT OF TRANSPORTATION, I BUREAU OF DRIVER LICENSING, I Appellee I I v, I I I IN THB COURT OF COMMON PLBAS OF CUMBERLAND COUNTY, PBNNSYLVANIA NO, 96-2269 BRYAN ROBERT NESTER, Appellant ATTORNEY VERIFICATION LICENSE SUSPENSION APPEAL Undersigned counsel for Appellant, Patrick F, Lauer, Jr" Esquire, hereby verifies and states that: 1, He is the attorney for Bryan Robert Nester, Appellant, 2, He is authorized to make this verification on Appellant's I behalf I 3, The facts set forth in the foregoing Motion are known to him and not necessarily to his clientl 4, The facts set forth in the foregoing Motion are true and correct to the best of his knowledge, information and belief, 5, He is awar.e that false statements herein are made subject to the penalties of 18 Pa, C,S, 4904, relating to unsworn falsification to authorities, Respectfully submitted, Datel -01d) !C(b ~ J:k;... t ~ Patrick F, Lauer, Jr" Bsquire 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID. 46430 Tel, (717) 763-1800 ATTORNEY FOR APPBLLANT COMMONWEALTH OF PENNSYLVANIA, I DEPARTMENT OF TRANSPORTATION, I BUREAU OF DRIVER LICENSING, I Appellee I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 96-2269 I, v, LICENSE SUSPENSION APPEAL BRYAN ROBERT NESTER, Appellant CERTIFICATE OF SERVICB I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the united States Mail, Camp Hill, Pennsylvania, through first class mai~, certified, return receipt requested, postage paid and addressed as follows: I ' I I Pennsylvania Department of Transportation Office of Chief Counsel Room 103 Transportation & Safety Building Harrisburg, PA 17120 By: -~~~ Patrick F, Lauer, Jr" BsquIre 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID* 46430 Tel. (717) 763-1800 , , ", , , '.; , Date I 1.izfJ10 ......,.,1. l: INDEX TQ WITNESSES FOR THE COMMONWEA~H 1, steven King_borough DIRECT CROSS 4 11 INDEX TO EXHIBITS FOR THE COMMONWEALT~ 1, Chemical Testing Warning IDENTIFIED ADMITTED 8 10 l. " . "1' ", " ',j. 2 " 1 June 24, 1996, 2:04 p,m, 2 Carlisle, Pennsylvania 3 4 (Whereupon, the following proceedings 5 were held:) 6 (Whereupon, Commonwealth's Exhibit No, 1 7 was marked for identification,) 8 THE COURT: This is whlch one? 9 MR, LAUER: Commonwealth versus Nester, Your 10 Honor, 11 THE COURT: Ready to proceed? 12 MR, KABUSK: Yes, Your Honor, Good 13 afternoon, Your Honor, The case Bryan Robert Nester, the 14 Commonwealth of Pennsylvania, Department of Transportation, 15 96-2269, license suspension appeal, 16 By official notice dated and mailed April 9, 17 1996, the Department of Transportation notified the 18 motorist, Bryan R, Nester, operator's license number 19 21479007, that as a result of his violation of Section 1547 20 of the Vehicle Code relating to chemical testing to 21 determine amount of alcohol or a controlled substance on 22 March 24, 1996, his operating privilege was being suspended 23 for a period of one year, 24 The department calls corporal steve 25 Kingsborough, 3 ......... 1 2 3 Whereupon, 4 STEVEN KINGSBOROUGH, 5 having been duly sworn, testified as follows: 6 DIRECT EXAMINATION 7 BY MR, KABUSK: 8 Q corporal Kingsborough, for the record, please 9 state your full name and spell your last name, 10 A Steven D, Kingsborough, 11 K-i-n-g-s-b-o-r-o-u-g-h, 12 THE COURT: How do you spell steven? THE WITNESS: with a V, sir, S-t-e-v-e-n, 13 14 BY MR, KABUSK: 15 Q Where are you employed? 16 A I'm employed by the Middlesex Township Police 17 Department in Cumberland County, pennsylvania, 18 Q And how long have you been so employed? Twelve years, During the course of your official dutie., 19 A 20 Q 21 have you had occasion to investigate an alleged inoident of 22 DUI on or about March 24, 1996? 23 A Yes, I did, Could you please tell the Court about tba~ 24 Q 25 incident? 4 ,-\ \ ,! .~ ',.) 1 A Yes, I was on routine patrol working the 2 midnight to 8:00 shift for the Middlesex Police Department, 3 I was traveling south on Claremont Drive and had pulled up 4 to the intersection with Trindle Road, Just as I had pulled 5 up to the intersection, I observed a darkened colored pickup 6 truck which was traveling east on Trindle Road from Carlisle 7 towards Mechanicsburg make a left-hand turn onto Claremont 8 Drive in front of my vehicle, 9 As the vehicle turned, it made a very slow 10 turn onto Claremont Drive with the right side of that 11 vehicle driving onto the berm of the northbound lane, I 12 imm$diately turned my patrol vehicle, made a u-turn in the 13 intersection, and got behind that vehicle, I also noticed 14 when it was making the turn that the headlight and the 15 parking light on the right front side was out. There was no 16 lighting on the right front of the vehicle, 17 As I was making my u-turn, I was watching the 18 vehicle which was now traveling north on Claremont Drive, I 19 observed that the right side of the vehicle had driven on 20 the right-hand side of the white berm line, which goes up 21 Claremont Drive approximately 3 to 400 feet beyond the 22 intersection, At this time I followed the vehicle and 23 closed the distance on that vehicle, and the vehicle pulled 24 over onto a stone berm in front of a dairy barn, it'. called 25 stoner's dairy barn on Claremont Drive, 5 -".... 1 As soon as the vehicle pulled over, it put 2 its reverse lights on, so I stopped my vehicle on the 3 roadway to see if this vehicle was going to back up, and the 4 vehicle did not move, I went out around the vehicle on tho 5 left-hand side, and as soon as I passed that vehicle, that 6 vehicle pulled back out from behind me and followed me on 7 down Claremont Drive, 8 As I got on the other side of the 81 overpass 9 bridge on Claremont Drive, there is a stone turnaround, I 10 pulled my vehicle over into that stone turnaround and waited 11 for this vehicle which was now behind me to pass. When 12 that vehicle passed, I pulled directly out behind it, 13 activated my emergency lights, and proceeded to stop that 14 vehicle in the front parking lot at the Cumberland County 15 Nursing Home, 16 Q What happened after you stopped the vehicle? 17 A Upon stopping the vehicle, I exited my patrol 18 car and approached the operator of the vehicle, I asked if 19 he had a driver's license and registration on him, And at 20 that time I noticed that he was smoking a cigarette, He 21 asked me why he was stopped, I explained to him the fact 22 that his turn seemed II little awkward, he hac, no lighting on 23 the right front of the vehicle, and the fact that he had 24 crossed over the berm line onto the right side or the 25 northbound berm with the right side of his truck, 6 ~ 1 He proceeded to hand me his driver's license, 2 and then he asked me if he could ask me a favor, I asked 3 him what that was, And he atatee to me that he had been at 4 the Trindle Inn drinking, and that I was supposed to cut him 5 a break, This was the first time in three months that he 6 had been at a bar, and please not to arrest him for DUI, 7 that he had other problems, I told him to stay in his 8 vehicle, I would be right back with him, 9 I returned to my patrol car, ran his name, 10 his date of birth through the Pennsylvania Department of 11 Transportation computer system and through the Metro system 12 to find out if there was any wants or warrants on him, At 13 this time Officer Peterson of the North Middleton Township 14 Police arrived to assist me, 15 I walked back up to the vehicle, asked the 16 defendant, Mr, Nester, if he would agree to do some field 17 sobriety tests for me and to step from the vehicle, He 18 stepped from the vehicle and walked to the back, When I 19 started to explain to him the field sobriety test, he stated 20 that he wasn't going to do any test, I was just going to 21 have to arrest him, 22 Now, whenev~r he was speaking, I noticed that 23 he had a very strong odor of an alcoholic beverage about his 24 breath, His eyes were extremely bloodshot and glassy, and 25 his speech was slightly slurred, At this time I asked Mr, 7 ." 1 Ne.ter to turn around, place his hands behind his back, that 2 he was under arrest for driving under the influence, and 3 handcuffed him with his hands behind his back, 4 He was asked to submit to a chemical test, 5 mainly a breath test, to determine his blood alcohol 6 content, to which he initially agreed, He was then placed 7 in the rear of my patrol car, His vehicla was moved over 8 into a parking space in the front parking lot of the 9 Cumberland County Nursing Home, 10 When I returned to my patrol car, I pulled 11 the Implied Consent Rule paperwork from PennDOT from my 12 briefcase, I read that paperwork to Mr, Nester as it is on 13 that form and again asked him if he would submit to a breath 14 test to determine his blood alcohol content. 15 MR, KABUSK: Your Honor, may I approach the 16 witness? 17 THE COURT: Yes, 18 BY MR, KABUSK: 19 Q Corporal Kingsborough, I'm going to show you 20 what's been marked Exhibit No.1, Would you identify that? 21 A Yes. This is a PennDOT form that I read to 22 the defendant, Bryan Nester, as far as his chemical testing 23 warnings under section 1547. 24 Q Would you read what you read to the motorist? 25 A I read to Mr. Nester, "Please be advised that B , / 1 you are now under arrest for driving under the influence of 2 alcohol or a controlled substance pursuant to Section 3731 3 of the Vehicle Code, I am requesting that you submit to a 4 chemical test of breath, It is my duty, as a police 5 officer, to inform you that if you refuse to submit to the 6 chemical test your driving privilege will be suspended for a 7 period of one year, 8 As a police officer, it is my duty to explain 9 to you that the constitutional rights due you in a criminal 10 prosecution as set forth in the Miranda decision do not 11 apply to chemical testing under the Implied Consent Law, 12 Specifically, you do not have a right to consult with a 13 lawyer or anyone else prior to taking the chemical test, nor 14 do you have the right to remain silent when a police officer 15 asks you to submit to a chemical test, 16 Your continued request to speak to a lawyer 17 or anyone else ~fter this explanation is given, or your 18 silence when asked to submit to a chemical test, will be 19 considered as a refusal of the chemical test subjecting you 20 to the suspension of your driving privilege," 21 MR, KABUSK: May! approach the witness, Your 22 Honor? 23 THE COURT: Yes, 24 MR. KABUSK: Your Honor, I have shown this to 25 Mr, Lauer, and I move tor admission of what'. been marked 9 ~ 1 Commonwealth's Exhibit No, 1, 2 THE COURT: It is admitted, 3 BY MR, KABUSK: 4 Q Corporal Kingsborough, after you have read 5 the motorist that form, the DL-26 Form, what happened next? 6 A After I read the form to him, he advised me 7 that he had had time to think about this and that he would 8 not submit to any chemical testing due to the fact that, 9 first of all, my traffic stop was illegal, and second of 10 all, I had no probable cause to arrest him. 11 At that time he was transported to the 12 Middlesex Township Police station where he was taken before 13 members of the Cumberland County District Attorney's Office 14 DUI Booking Center, Once he was taken into the booking 15 center, I again read the exact same form to him a second 16 time, advising him of what could happen and asking him to 17 submit to a breath test, and again he refused, 18 Q And how did he refuse? 19 A He just stated he wasn't taking any test, 20 Q Is the motorist present in the courtroom? 21 A Yes, he is, 22 Q Would you identify him, plea.e? 23 A He's seated beside defense counsel, lawyer, 24 Mr, Bryan Nester, 25 THE COURT: Was there testing equ1p..nt at 10 _"I " the bookinq center? THE WITNESS: Yes, Your Honor, there WilS, MR, KABUSK: No further questions, Your Honor, THE COURT: Cross, CROSS EXAMINATION 1 2 3 4 5 6 7 BY MR, LAUER: 8 Q Sir, did you prepare any other reports other 9 than your affidavit of probable cause reqardinq statements 10 made by my client? 11 A Yes, I did, 12 Q Do you have those with you? 13 A Yes, I do, 14 Q Can I take a look at those, please, 15 A They are here on the counter, 16 MR, LAUER: Your Honor, may I approach the 17 witness? 18 THE COURT: Yes, 19 BY MR, LAUER: 20 Q Now, you saw the vehicle makinq a left-hand 21 turn onto Claremont Road, correct? 22 A No, Claremont Drive, 23 Q Or Claremont Drive, 24 A That's correct, 25 Q How far -- and you had been on Claremont 11 - .-.." 1 Drive aa well at the time, correct? 2 A Correct, 3 Q And approaching an intersection where there 4 is a T there, is that correct? 5 A That's correct, 6 Q How far were you from the intersection at the 7 time you saw the defendant's vehicle make a left-hand turn? 8 9 10 11 12 13 14 approximately, as you approached that intersection? 15 A Approximately 10 to 15 mile per hour, 16 Q When the defendant made the left-hand turn, 17 approximately how fast was he going when he made the turn? 18 A I would say approximately 5 mile an hour, 19 Q Now, what is the speed limit there for making 20 a turn? Is there a speed limit that says what you should be 21 traveling to make that turn? 22 A No. 23 Q And he never crossed -- is there a double 24 yellow line there at that intersection? 25 A Yes, there is, A Approximately 20 feet, Q Twenty feet? A Approximately, Q Okay, A I was in the process of stopping, Q Okay, And how fast were you going, 12 ~ 1 Q He never crossed that double yellow line into 2 your lane of traffic there, isn't that true? 3 A No, 4 Q And isn't it also true he used his left-hand 5 turn signal when he made that turn? 6 A I don't recall if he had a turn signal on, 7 Q You're telling me you observed at that time 8 his headlight was out? 9 A That's correct, as he was in the process of 10 making the right hand -- or left-hand turn, 11 Q And then did you go all the way to the stop 12 sign yourself? 13 A No, I started my u-turn before the stop 14 sign, 15 Q So your u-turn would have been started before 16 the stop sign, How far before the stop sign were you at the 17 time you made the U-turn? 18 A I would say the front of the vehicle may have 19 been approximately two or three feet from the stop sign when 20 I started the U-turn, 21 Q Didn't you have to look over your shoulder 22 when you made that three-point turn, made that u-turn? 23 A It was a U-turn, not a three-point turn, 24 Q Okay, Obviously, you had to watch the wheel, 25 you couldn't keep your eyes on my client's vehicle the 13 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 entire time you were driving down the road, agreed? A Yes, I did, Q So the entire time as you're making your u-turn, you had your eyes on my client's vehicle continually, agreed? A Yes, I did, out trom the side mirror or the side window ot the car, Q And never looked away from him, right? A No, Q Now, how far down Claremont Drive had the detendant's vehicle traveled prior to you completing your u-turn and getting on the road? A Approximately 200 feet, Q Okay, Within the 200 feet that you were traveling there, he never crossed over a double yellow line, agreed? A That's correct, Q And at no time down this entire road did he ever cross over the double yellow line, agreed? A Not while I was following him, Q And his vehicle, when you were watching it drive down this road, wasn't weaving within its lane, agreed? A No, it was not weaving within the lane, Q Right, And isn't it also true that you -- 14 , . \ ~ 1 back up, You testified his vehicle tires supposedly was 2 crossing over a white fog line? 3 A White berm line, 4 Q How far past the intersection of Claremont 5 Drive did this first occur? 6 A When he first entered the left turn onto 7 Claremont Drive? 8 Q Uh-huh. 9 A And the second time would have been 10 approximately 200, 300 feet beyond where he had first 11 started his left turn, 12 Q Where was your vehicle in relation to my 13 client's vehicle at the time that you say his right tires 14 went over the right fog line at that turn? 15 A I was coming towards him, 16 Q So you were coming right towards him, Was 17 the left-hand side of your car right next to his? 18 A No. 19 Q So how far in front of you was hi. car at the 20 time you say you could see his tires touch that white fog 21 line? 22 A Approximately 10 feet, 15 teet, 23 Q How much of his tires actually touched 24 white fog line? " 25 A They were over the white tog lin.. 15 ~ ~, I 1 Q For what, a half a second, a second maybe? 2 A A second, two seconds, 3 Q It's also fair to say that that's very dark 4 there at that intersection, isn't that true? 5 A Pardon me? 6 Q It's very dark at that intersection, isn't 7 that true? 8 A It was at the time, 9 Q It was? 10 A \1es, 11 Q Then he traveled about 2 or 300 feet down the 12 road, and you are saying hie tires went over the white fog 13 line the second time? 14 A That is correct, 15 Q Now, when you were following this vehicle 16 down the 300 feet, you had not decided to pull his vehicle 17 over, agree? 18 A \1es, I had, 19 Q Oh, you had decided to pull it over? 20 A \1es, I had, 21 Q Now, the vehicle continued driving further 22 down from the 2 to 300 feet down the road, correct? 23 A Correct, 24 Q How far had it driven from the time that you 25 say it crossed over the white fog line until the point where 16 ~ 1 he pulled his vehicle over to the right? 2 A I would say less than a tenth of a mile, 3 Q So he drove a tenth of a mile and you still 4 hadn't activated your lights, agree? 5 A That's correct. 6 Q And when he pulled his vehicle over, he used 7 his right-hand turn signal there, isn't that true? 8 A I don't recall. 9 Q okay, He pulled his vehicle over safely, 10 isn't that true? 11 A HG didn't hit anything, 12 Q Well, it was safely, agree? 13 A Yeah, 14 Q okay, And you passed his vehicle, agree? 15 A That's correct, 16 Q How far were you behind his vehicle at the 17 time that he pulled his vehicle over to the right? 18 A You mean how far as in distance? 19 Q Yeah, how far behind his vehicle by the time 20 he pulled over to the right, 21 A Maybe 20 feet. 22 Q Okay, So you were right behind his vehicle? 23 THE COURT: I want you to give the officer's 24 report back, 25 MR, LAUER: Yes, Your Honor, I apologize, 17 - , '-.. 1 he pulled hi. vehicle over to the right? 2 A I would .ay le.. than a tenth of a mile, 3 Q So he drove a tenth of a mile and you still 4 hadn't activated your lights, agree? 5 A That's correct, 6 Q And when he pulled his vehicle over, he used 7 hi. right-hand turn signal there, i.n't that true? 8 A I don't recall. 9 Q Okay, He pulled his vehicle over safely, 10 isn't that true? 11 A He didn't hit anything, 12 Q Well, it was safely, agree? 13 A Yeah, 14 Q Okay, And you passed his vehicle, agree? 15 A That's correct, 16 Q How far were you behind his vehicle at the 17 time that he pulled his vehicle over to the right? 18 A You mean how far as in distance? 19 Q Yeah, how far behind his vehicle by the time 20 he pulled over to the right, 21 A Maybe 20 feet, 22 Q Okay, So you were right behind his vehicle? 23 THE COURT: I want you to give the officer's 24 report back, 25 MR, LAUER: Yes, Your Honor, I apologize, 17 ""'"' r, 1 THE COURT: Give it back to him now, 2 BY MR, LAUER: 3 Q Sir, so you followed this vehicle 4 approximately what was the total distance from the 5 intersection at Claremont Drive until the point where you 6 pulled it over? 7 A Approximately a tenth of a mile, 8 Q Well, didn't you say it was 200, 300 feet 9 plus an additional tenth of a mile? 10 A No, It was approximately a tenth of a mile 11 from where I first observed him coming onto Claremont Drive 12 and where he stopped, 13 Q And you made the decision you were going to 14 pull him over initially when you saw -- 15 A That's correct. 16 Q But when he pulled his vehicle over, you 17 could have activated your lights there? 18 A I could have, 19 Q You didn't? 20 A That's correct. 21 Q You passed his vehicle and continued on down 22 the road, agree? 23 A That's correct, 24 Q You continued down the road, and he pulled 25 his vehicle out onto the roadway, agree? 18 1 2 A ',"", ..... Q He pulled out directly behind me, And he used his turn signal when he pulled 3 out onto the roadway, isn't that true? 4 A I do not recall. And he pulled out safely onto the roadway, Again, he didn't hit anything, All right, And he stayed within his lane of 9 traffic continually as he followed you down the road, agree? 10 As best as I could tell. 14 5 Q 6 isn't that true? 7 A 8 Q 15 A Q A Q yellow line? A Q you? A Q A Q A the road, Q left? 16 17 18 19 20 21 22 23 24 25 I didn't see it, Then your testimony is then that he pas.ed No, Did you pullover first? I pulled over first. Did you pull off onto the berm? Just down the turnaround com.. completely oft ",,",')i"':l' , '.':11 ")),('" 1\\.-;)1 ., ,___,_;/~(;i&/ Y",:\ik" '.,i '.,'1:\ I):,;~. '. .!,\rh ;-'.\;.' Did you pull oft to your right or to. 19 , _.A t ~ 1 A To my right, 2 Q To your right, He wasn't speeding as he 3 pa..ed you, agree? 4 A I didn't clock him, 5 Q Well, he didn't appear to be driving at an 6 excessive speed? 7 A Um-hum, 8 Q He drove carefully past you, agree? 9 A As far as I know, he did, 10 Q Then how far did you follow the defendant's 11 vehicle from the point where you turned around until the 12 point where you activated your lights? 13 A Immediately after I pulled back Qut behind 14 him, 15 Q okay, Why didn't you activate your lights 16 initially, when you were initially behind him prior to him 17 initially pulling over? 18 A Because I pick the spot for the traffic stop, 19 not the defendant, 20 Q What was wrong with any area prior to the 21 area where he pulled over? 22 A The vehicle could not have gotten safely off 23 the road, and with other traffic and the lighting conditions 24 at that point, 25 Q Okay, Now, at the time you activated your 20 """ ,.--- 1 lights he did pull his vehicle over immediately, agree? 2 A No, he did not, 3 Q How much -- how far did his vehicle travel 4 from the time you activated your lights to the time you 5 pulled the vehicle over? 6 A Approximately 4 or 500 feet, 7 Q Well, how many seconds did that take at the 8 speed the vehicle was traveling? 9 A I have no idea, 10 Q Approximately? 11 A I have no idea, 12 Q In that 4 or 500 feet that you observed the 13 vehicle, it wasn't weaving then, agreed? 14 A No, not that I could tell, 15 Q And there was nothing erratic about that 16 driving, agree? 17 A Yes, sir, 18 Q It was driven safely, agree? 19 A As far as I could tell. 20 Q Well, he drove the vehicle under control in 21 that area, agree? 22 A Yes, 23 Q It's also fair to say, sir, when he pulled 24 the vehicle over after you activated your lights, he used 25 his turn signal there, isn't that true? 21 '''"''I ,~... 1 A I don't recall. 2 Q When you asked him for his license and 3 registration, he provided that information to you without 4 any ditticulty, isn't that true? 5 A That is correct, 6 Q And he provided it to you within a tew 7 seconds, agree? 8 A To the best ot my recollection, yes, 9 Q He didn't tumble through his wallet or have 10 any problems doing that? 11 A No, I do believe he already had it in his 12 hands, 13 Q It's also tair to say, sir, when you asked 14 him to exit the vehicle, he didn't lean against the vehicle 15 when he exited, isn't that true? 16 A I'm sorry, counselor, I didn't hear you, 17 Q When you asked him to exit the vehicle, he 18 didn't lean against the vehicle, isn't that true? 19 A You mean lean over into the vehicle? 20 Q He never put his hand on the vehicle for 21 balance when he exited the vehicle, 22 A No, 23 Q He didn't sway trom left to right when he 24 exited the vehicle and walked back to the area where you 25 wanted him to do the coordination test? 22 ,.-... ,.... , 1 A I didn't watch him, My back was towards him, 2 To that point, Officer Peterson was behind him, 3 Q Now, you did observe him walk from some 4 location back to where the coordination test was going to be 5 done, isn't that true? 6 A only after he got to the back of his truck, 7 He was already facing me, I just turned around and asked 8 him, 9 Q When he was standing there, he had no 10 problems standing there, agreed? 11 A Not for the short amount of time we were 12 standing there, 13 Q He stood there like a normal, sober person, 14 would we agree? 15 A I didn't see anything unusual at that point, 16 Q So you would agree with me he stood like a 17 normal, sober person, agree? 18 A I would say I didn't see anything unusual, 19 Q So you would agree with me 20 THE COURT: wait a minute, That is a 21 conclusion, Elicit facts, 22 BY MR, LAUER: 23 Q Now, did you ask him how much sleep he had? 24 A No, I did not, 25 Q So as far as his eyes supposedly being 23 ,""" (-. 1 bloodshot, you don't know what that was from, agree? 2 A My indication from my training is it is one 3 of the signs, 4 Q Well, I'm aSking you -- you know he smokes 5 cigarettes, right? 6 A Yes, 7 Q He smoked a cigarette, right? 8 A Yes, he was, 9 Q In your training or general life, you are 10 aware people get red eyes from smoking cigarettes, right? 11 A I have no idea, 12 Q My point being, you don't know how his eyes 13 supposedly got red, agree? 14 A I have no idea, 15 Q And you would also agree with me that the 16 odor of alcohol, that does not mean he was impaired or 17 incapable of safe driving in and of itself, agree? 18 A That's correct, 19 Q He was very cooperative with you though, 20 isn't that true? 21 A Yeah, at the beginning, 22 Q Well, he didn't do any -- you told him he had 23 a right to refuse the test, isn't that true? 24 A That is c.orrect, right off the form, 25 Q So there is nothing uncooperative about 24 Q A Q A Q for a year? A Q A Q A Q . _""" 'I ,'"'" 25 1 ~ ~ A No, I did not, I asked him if he would, He 2 refused to do so, 3 Q Did you tell him you were 90in9 to arrest him 4 or take him in for a breath test as a result of not doin9 I I I I I I i 11 12 13 14 15 16 5 that? 6 7 8 A No, A Q Q Did he -- was he as a matter of law required 9 to take your coordination tests? A Not that I'm aware of, 10 Q So there was nothin9 uncooperative about that, ri9ht? A No, Q How 10n9 was he standin9 outside of his car prior to the point where you put the handcuffs on him? A minute, a minute and a half, And he had no difficUlty walkin9 from the 17 area where you put the handcuffs on him to the point where 19 18 he walked to the car, a9ree? A 21 20 on, so I couldn't tell you, I had a hold of his arm with the handcUffs 22 23 Q A Q Was that standard procedure? It is for me, The time you stopped him, isn't it true he 24 told you that basically he didn't 90 over the white tog 25 line, and he 90es, Why didn't you pull me Over .arlier it t 26 1""1 r' , 1 did that? Isn't that true that he made that statement to 2 you? 3 A No, He asked me why didn't I stop him 4 earlier, I don't recall the statement about the white fog 5 line, But he did ask why I did not stop him earlier, 6 Q And you told him, wall, we've got y~u on the 7 headlight anyways? 8 A Pardon me? 9 Q Didn't you make a statement to him, well, if 10 we don't have you on the white fog line, we've got you on 11 the headlight? 12 A No, 13 Q Did Officer Peterson show up after you had my 14 client exit his vehicle? 15 No, Officer Peterson arrived while the A 16 defendant was still seated behind the steering wheel, 17 Was Officer Peterson outside of his vehicle? Q 18 Yes, he was, A 19 The entire time? At this time he was, Q 20 A 21 How close did he ever get to my client? I have no idea, Q 22 A 23 You didn't see Officer Peterson talking to my Q 24 client, right? 25 A No, ., ;" 27 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 ~ ,- I Q My client's speech was not slurred, isn't that true? A No, Q No, it was not slurred? A No, that is not true, Q Well, what was slurred about it? I mean, you testified there are many things he said -- THE COURT: wait a minute, Was his speech slurred? THE WITNESS: Yes, it was, Your Honor, THE COURT: Next question, BY MR, LAUER: Q How was it slurred? A His words were, He wasn't what they call mush mouth, but you could tell that his speech was not articulate, I could understand what he was saying, but his words were running together just a little bit, Q Well, you obviously must have heard everything he said because you wrote down every state.ent he said, agree? A Pardon me? Q You must have understood everything he v.. saying because you took great pains to write it all down, agree? A Yes, I could understand him, 28 " , ,''"''1 ,,,,", 1 Q Now, what you wrote down, did you ever give 2 him an opportunity to review that prior to your typing it 3 up? 4 A NO, I did not, So he's never had a time to retute that or 5 Q 6 challenge that? 7 A No, 8 MR, KABUSK: Your-- THE COURT: sustained, Look, elicit tacts, 9 10 BY MR, LAUER: 11 Q Did you walk with him from -- where did you 12 take him to do the breath test? 13 A Middlesex Township Police Department, And ho walked trom the car to the department, 14 Q 15 side ot the department, agree? 16 A I helped him out of the back of the car and 17 walked him to the door, 18 Q He had no difficulty walking though trom the 19 car to the area where the test was going to be done? 20 A Again, I had a hold of his arm, I couldn't 21 tell you, 22 Q Standard procedure? 23 A My procedure, 24 Q Right, But my point being i., he didn't 25 stumble or sway though when he walked, agree? , , ,> 29 I,. " , , ,"'" r' 1 A Not that I could tell, 2 Q And at some point and time tho cuffs were 3 taken off of him inside the station, agree? 4 5 A Yes, Q And he had no trouble sitting there or 6 walking around where he was asked to go, isn't that true? 7 A Not that I could notice, 8 Q How long -- how much time did you spend with 9 him at the station? 10 A Long enough to reread the Implied Consent 11 Rule, and then he was turned over to Agent Lynn Myers, 12 Q And you immediately left? I went back to my office to complets 13 A 14 paperwork, 15 Q So the paperwork that you typed up, was that 16 done that night or the next day? 17 A That was done that night, Q Immediately atter the arrest? A That is correct. MR, LAUER: I have no further que.tion. , THE COURT: Anything else? MR, I<ABUSI<: Nothing, Your Honor, " I:i,' , 18 19 20 21 22 23 THE COURT: sir, you may step down, Any 24 further testimony? 25 MR, I<ABUSI<: No, Your Honor, 30 ~ 1 2 THE COURT: You rest, Petitioner, 3 MR, LAUER: We have no testimony, Your Hono~, THE COURT: The record is closed, Argument 4 off the record, 5 (Whereupon, argument was held off 6 the record,) 7 THE COURT: I will take it under advisement 8 and hand down an opinion, 9 MR, LAUER: Thank you, Your Honor, (Whereupon, the hearing was concluded 10 11 at 2:36 p,m,) 12 13 14 15 16 , , 17 18 l', ' 'I 19 " , 20 , " , I t. I II , , 21 22 , 23 24 , , , 25 , , " 31 ,'"'"' , CERTIFICATION 1 2 3 I hereby certify that the proceodinqe are 4 contained fully and accurately in the notes taken by me on 5 the above caU8e and that this is a correct transcript of 6 8ame, 7 -) (, Pamela R, Sheaffer Official Court Reporte 8 9 10 ~--------------------------------- 11 12 The foreqoinq record of the proceedinqs on the 13 hearinq of the within matter is hereby to be filed, a!)d direoted approved ,I 14 15 J, 16 1'14b 17 18 19 ) 20 21 22 23 24 25 32 - , , I '.~ I I (, !I' Ii II !t ..~ "nJ ::'.!t~' .,1.) ~ 1 , , '" ': "r'I' " II I, , /' I" I' I" " I' Ii: f :: ,