HomeMy WebLinkAbout02-5030IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
EMILIO J. PORTILLO,
Petitioner
COMMONWEALTH OF PENNSYLVANIA,
Department of Transportation,
Bureau of Driver Licensing,
Respondent
NO. O2-
CIVIL ACTION - LAW
APPEAL FROM
SUSPENSION OF
OPERATOR'S LICENSE
PRIVILEGES
APPEAL FROM SUSPENSION OF
OPERATOR'S LICENSE PRIVILEGES
TO THE HONORABLE, THE JUDGES OF SAID COURT:
AND NOW, this 15th day of October, 2002, comes the Petitioner, Emilio J.
Portillo, by his attorney, G. Patrick O'Connor, Esquire, and presents the following appeal:
1. The Petitioner, Emilio J. Portillo, is an adult individual residing at 2202
Cedar Run Drive, Apt. # F, Camp Hill, Cumberland County, PA 17011.
2. The Petitioner's driver's license number is: 26418951.
3. The Petitioner has been notified by the Department of Transportation that,
effective October 24, 2002, his driver's license privilege is being suspended for a period
of one (1) year as a result of an alleged violation of Section 1547 of the Vehicle Code,
CHEMICAL TEST REFUSAL, on August 31, 2002. A copy of said notice is attached as
Exhibit "A" and incorporated herein by reference.
4. Said suspension of Petitioner's driver's license is improper and illegal for
the following reason: The Petitioner did not knowingly refuse to submit to chemical
testing. The Petitioner does not speak or understand the English language. As a result,
the Petitioner misunderstood the police officer's instructions pertaining to execution of
the test and was unable to execute the test successfully.
5. The Petitioner respectfully reserves the right to provide additional and
supplemental reasons in support of the instant Petition should additional facts or defenses
be later discovered by counsel.
WHEREFORE, PURSUANT TO 75 P.S. Section 1550, the Petitioner prays that
this matter be set for a hearing before Your Honorable Court and that the Orders of the
Department of Transportation be set aside.
Respectfully submitted,
,/G. Patrick O'Connor, Esquire
Attorney No. 64720
3105 Old Gettysburg Road
Camp Hill, PA 17011
(717) 737-7760
Attorney for Petitioner
ATTORNEY VERIFICATION
I, G. Patrick O'Connor, Esquire, hereby certify that I am the attorney for the
Petitioner and that the information contained in the herein petition is based on
infommtion given to me by the Petitioner and is tree and accurate to the best of my
knowledge, information and belief.
DATE:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: SEPTEHBER 19, 2002
EMILIO J PORTILLO
2202 CEDAR RUN DR
APT F
CAMP HILL PA 17011
WID ~ 022556112303851 001
PROCESSING DATE 09/12/2002
DRIVER LICENSE ~ 26418951
DATE OF BIRTH 12/08/1975
Dear MR. PQRTILLO:
This is an O~flclal Notlce of the Su.oenston of your Driving
Privilege as authorized by Section 15q7 of the Pennsylvania
Vehicle Code. As a result of your violation of Section 15q7
of the Vehicle Code, CNEHICAL TEST REFUSAL, on 08/$1/2002:
· You~ driving privilege is SUSPENDED for 8 perlod of 1
YEAR(S) effective 10/24/2002 at 12:0! a.m.
WARNING: If you are convicted of drlving while your
license is suspended/revoked the penalties will be a
MINIMUH of 90 days imprisonment AND a 91,000 fine AND
your driving privilege will be suspended/revoked for
a MINIMUM 1 year period
COMPLYING WITH THIS SUSPENSION
You must return all current Pennsylvania driver's licenses,
learner's permits, temporary driver's licenses (camera
cards) in your possession on or before 10/2~/2002. You may
surrender these items before, 10/2~/2002, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU HAY NOT RETAZN YOUR DRZVER~S LZCENSE FOR ZDENTZFZCATZON
PURPOSES. However, you may apply for and obtain a photo
identification card at any Driver License Center for a cost
of $10.00. You must present two (2) forms of proper
identification (e.g., birth, certificate, valid U.S.
passport, marriage certificate, etc.) in order to obtain
your photo identification card.
You w111 not recelve credlt toward servlng any suspension
untll we recelve your license(s). Complete the following
steps to acknowledge this suspension.
EXHIBIT "A'
02255&112505851
1. Return all current Pennsylvania driverls licenses,
learner"s permits and/or camera cards to PennDOT. If
you do not have any of these items, send a sworn
notarized letter stating you are aware of the suspension
of your driving privilege. You must specify in your
letter why you are unable to return your driver's
license. Remember: You may not retain your driver's
license for identification purposes. Please send these
items to:
Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box &8695
Harrisburg, PA 1710&-8695
2. Upon receipt, review and acceptance of your Pennsylvania
driveris Iicense(s), learner~s permit(s), and/or a sworn
notarized letter, PennDOT will send you a receipt
confirming the date that credit began. If you do not
receive a receipt from us within $ weeks, please contact
our office. Otherwise, you will not be given credit
toward serving this suspension. PennDOT phone numbers
are listed at the end of this letter.
$. If you do not return all current driver license
products, we must refer this matter to the Pennsylvania
State Police for prosecution under SECTION 1571(a)(~)
of the Pennsylvania Vehicle Code.
PAYING THE RESTORATION FEE
You must pay a restoration fee to PennDOT to be restored
To
from a suspension/revocation of your driving privilege.
pay your restoration fee, complete the following steps:
1. Return the enclosed Application for Restoration. The
amount due is listed on the application.
2. Write your driver's license number (listed on the first
page) on the check or money order to ensure proper
credit.
$. Follow the payment and mailing instructions on the back
of the application.
02255&112505851
1. Return all current PennsylvanAa drAver's 1Acenses,
learner's perm/ts and/or camera cards to PennDOT.
you do not have any of these items, send a sworn
notarAzed letter statAng you are aware of the suspensAon
of your drAvAng prAvilege. You must specAfy An your
letter why you are unable to return your drAverts
license. Remember~ You may not retain your drAverts
1Acense for AdentifAcatAon purposes, Please send these
Atems to:
PennsylvanAa Department of TransportatAon
Bureau of Driver LicensAng
P.O. Box 68693
Harrisburg, PA 17106-8695
2. Upon receApt~ revAew and acceptance of your PennsylvanAa
driver's /Acense(s), learner~s permit(s), and/or a sworn
notarized letter, PennDOT wil1 send you a receipt
confirmAng the date that credit began. If you do not
receAve a receipt from us w/thin $ weeks, please contact
our offAce. OtherwAse, you wall not be given credAt
toward servAng thAs suspensAon. PennDOT phone numbers
are listed at the end of thAs letter.
If you do not return all current driver license
products, we must refer this matter to the Pennsylvania
State PolAce for prosecution under SECT[ON 1571(a)(fi)
of the Pennsylvania VehAcle Code.
PAYING THE RESTORATION FEF
You must pay a restoration fee to PennDOT to be restored
from a suspensAon/revocation of your drAvAng prAvllege. To
pay your restoratAon fee, complete the followAng stepsz
1. Return the enclosed ApplAcatAon for Restoration. The
amount due is lasted on the application.
2. Write your driver's license number (listed on the fArst
page) on the check or money order to ensure proper
credAt.
$. Follow the payment and maAiAng Anstructions on the back
of the application.
022556112505851
APPEAL
You have the right to appeal this act/on to the Court of
Common Pleas (Civil Division) within $0 days of the mail
date, SEPTEHBER 19, 2002, of this letter. If you file an
appeal In the County Count, the Count w111 glve you a
time-stamped certified copy of the appeal. In order for
your appeal to be valid, you must send this time-stamped
certif/ed copy of the appeal by cent/f/ed ma/1 to:
Pennsylvania Department of Transportat/on
Off/ce of Chief Counsel
Th/rd Floor, R/verfront Off/ce Center
Harr/sburg, PA 1710q-251&
Remember, this Ks an OFFICIAL NOTICE OF SUSPENSION. You
must return all current Pennsylvan/a driver license products
to PennDOT by 10/2~/2002.
Sincerely,
Rebecca L. B/ckley, Director
Bureau of Dr/vet L/cens/ng
INFORMATION 7:00 a.m. to 9:00 p.m.
IN STATE 1-800-952-4600 TDD IN STATE
OUT-OF-STATE 717-$91-6190 TDD OUT-OF-STATE
NEB SITE ADDRESS wuu.dot.state.pa.us
1-800-228-0676
717-$91-6191
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
EMILIO J. PORTILLO,
Petitioner
COMMONWEALTH OF pENNSYLVANIA,
Department of Transportation,
Bureau of Driver Licensing,
Respondent
NO.
CIVIL ACTION - LAW
APPEAL FROM
SUSPENSION OF
OPERATOR'S LICENSE
PRIVILEGES
CERTIFICATE OF SERVICE
I hereby certify that I have, this day, served the herein petition to the party
indicated below by depositing same in the United States mail, certified mail, postage
prepaid, at Camp Hill, Pennsylvania:
Office of Chief Counsel
Attn: George H. Kabusk, Esquire
pennsylvania Department of Transportation
1101 S. Front Street
Harrisburg, PA 17104
DATE:
· /(3. ~atrick O'Connor, Esquire
Attorney No. 64720
3105 Old Gettysburg Road
Camp Hill, PA 17011
(717) 737-7760
Attorney for Petitioner
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
EMILIO J. PORTILLO,
Petitioner
Vo
COMMONWEALTH OF PENNSYLVANIA,
Department of Transportation,
Bureau of Driver Licensing,
Respondent
NO. ~& - ,.~Z~O
CIVIL ACTION - LAW
APPEAL FROM
SUSPENSION OF
OPERATOR'S LICENSE
PRIVILEGES
ORDER OF COURT
AND NOW, this_~day of ted t_~ ~ ~y
,2002, IT IS ORDERED that
a hearing on the within appeal from a suspension of operating licenses privileges shall be
conducted in Courtroom Number /., Cumberland County Courthouse, Carlisle,
olv . ,~ ~ q : 3 o
Pennsylvania, mr~ o7,3 ,2002. This order shall act
asa supe4edeas for the suspension of petitioner's operating pfivileg~t 3to ~ c×~ ~-
By the Court,
EMILIO J. PORTILLO,
Petitioner
Vo
COMMONWEALTH OF :
PENNSYLVANIA, :
DEPARTMENT OF :
TRANSPORTATION, :
BUREAU OF DRIVER :
LICENSING, :
Respondent :
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-5030 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF
OPERATOR'S LICENSE PRIVILEGES
ORDER OF COURT
AND NOW, this 23rd day of December, 2002, a further hearing on the above
matter is scheduled for Wednesday, March 19, 2003, at 1.:30 p.m., in Courtroom No. 1,
Cumberland County Courthouse, Carlisle, Pennsylvania.
,/G. Patrick O'Connor, Esq.
Attorney for Petitioner
l/George Kabusk, Esq.
Attorney for Respondent
:rc
BY THE COURT,
/
:J..~Wesley ~r., J.
EMILIO J. PORTILLO, : IN THE COURT OF COMMON PLEAS OF
Plaint i f f : CUMBERLAND COUNTY, PENNSYLVANIA
:
Y. :
:
COMMONWEALTH OF PENNSYLVANIA :
DEPARTMENT OF TRANSPORTATION,: NO. 02-5030 CIVIL TERM
BUREAU OF DRIVER LICENSING, :
Defendant : CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 23rd day of December, 2002, upon
consideration of Petitioner's Appeal from Suspension of Operator's
License Privileges at No. 02-5030 Civil Term and following an
initial period of hearing, which has not been completed, the
record shall remain open and counsel are requested to contact the
court's secretary for purposes of scheduling a concluding period
of hearing.
It is noted that at the time of adjournment on
today's date, Commonwealth Exhibits 1 and 2 had been identified
and admitted, and Commonwealth Exhibit 3 (videotape) had been
identified and viewed by the Court but not yet admitted. It is
noted further that at the time of adjournment on today's date the
Commonwealth was subjecting Joshua Sheaffer to direct examination,
and the Petitioner had not yet commenced his case-in-chief.
In addition, it is noted that Haydee Greene was
serving as interpreter for the Petitioner in this case.
Counsel for Petitioner has indicated that he will notify the
stenographer in the event that he wishes a transcript prepared of
today's proceeding. The Commonwealth through its counsel has
indicated that it is not requesting a transcript.
The stenographer is directed to retain the exhibits
which have been admitted, and counsel are directed to retain the
exhibit which has not yet been admitted.
~NVAIASNN-~a
By the Court,
Jo
~George H. Kabusk, Esquire
Office of Chief Counsel
1101 South Front Street -3rd Floor
Harrisburg, PA 17104-2516
For the Plaintiff
/-G. Patrick O'Connor, Esquire
3105 Old Gettysburg Road
Camp Hill, PA 17011-7208
For the Defendant
EMILIO J. PORTILLO, :
Plaintiff :
V. :
COMMONWEALTH OF PENNSYLVANIA :
DEPARTMENT OF TRANSPORTATION,: NO. 02-5030 CIVIL TERM
BUREAU OF DRIVER LICENSING, :
Defendant : CIVIL ACTION - LAW
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
TRANSCRIPT OF PROCEEDINGS
Proceedings held before the HONORABLE J. WESLEY OLER, JR., J.,
Cumberland County Courthouse, Carlisle,
on December 23, 2002,
in Courtroom Number 1.
APPEARANCES:
George H. Kabusk, Esquire
Office of Chief Counsel
For the Commonwealth
G. Patrick O'Connor, Esquire
For the Defendant
ORIGINAL
FOR COMMONWEALTH
Jeffrey A. Snyder
Ofr Gregory Thomas
Joshua Sheaffer
INDEX TO WITNESSES
DIRECT CROSS
4 8
9 21
38. --
REDIRECT RECROSS
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INDEX TO EXHIBITS
FORTHE COMMONWEALTH
1 - Chemical testing warnings
2 - BAC DataMaster evidence ticket
3 - Video tape
(not admitted, held by Kabusk)
MARKED
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ADMITTED
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December 23, 2002
Carlisle, Pennsylvania
(The following proceedings were held at 9:51 a.m.)
THE COURT: This is the time and place for a
hearing on an appeal from suspension of operator's license
privileges. We will let the record indicate that the
Petitioner/Appellant is present in court with his counsel, G
Patrick O'Connor, Esquire, and with them is Haydee Greene, an
interpreter; and the Commonwealth is represented today by
George H. Kabusk, Esquire. Mr. Kabusk.
MR. KABUSK: Yes, Your Honor, by official notice
dated September 19, 2002, the department notified the
Petitioner, Emilio J. Portillo, Operator's No. 26418951 that
as a result of his violation of Section 1547 of the Vehicle
Code relating to chemical test refusal on 8/31/2002, his
privilege was being suspended for a period of 1 year effective
10/24/2002.
THE COURT: Let me preliminarily swear in the
interpreter before we' go any further. Ms. Greene, please
raise your right hand.
(Interpreter sworn.)
THE COURT: Thank you. Mr. O'Connor, are you
satisfied with the interpreter?
MR. O'CONNOR: Yes, I am, Your Honor.
THE COURT: Mr. Kabusk.
MR. KABUSK: Your Honor, the Department is
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expecting the booking agent, Joshua Sheaffer, to arrive
shortly. In the meantime, the department is ready to proceed
with its two other witnesses.
Officer Snyder.
The Department first calls
JEFFREY A. SNYDER,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Snyder, please state your name and spell
your last for the record?
A My name is Jeffrey A. Snyder, S-N-Y-D-E-R.
Q Where are you employed'?
A Hampden Township Police Department.
Q During the course of your official duties, have
you had occasion to investigate an alleged incident of DUI on
August 31, 2002?
A Yes.
Would you please tell the Court about that
Q
incident?
A
I had already made a DUI arrest on a juvenile in
my own jurisdiction, I was transporting my prisoner to the
West Shore Booking Center, which is located at the Lower Allen
Township Police Station. While in route to the Booking Center
I was on Gettysburg Road, which is actually in Lower Allen
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Township, when we were approaching Hartzdale Drive, I saw --
there were two vehicles in front of me, a small white sedan
and a blue Dodge pickup truck. Both vehicles had stopped for
a red light at Hartzdale Drive. The light turned green, both
vehicles proceeded through. We were in the right lane to
start. The lead vehicle, which was the blue Dodge pickup
truck, was traveling about 15 miles per hour. It was weaving
back and forth between the right and left lane, completely --
MR. O'CONNOR: Objection, Your Honor, I don't see
how this is relevant to the question of the chemical test
refusal, details about the driving.
THE COURT:
MR. KABUSK:
establishing its case.
Mr. Kabusk.
Your Honor, the department is
One of the elements is to prove the
officer had reasonable grounds to believe the motorist was
operating while under the influence of alcohol or controled
substance, that is what this is going towards.
O'Connor?
THE COURT:
MR. O'CONNOR:
THE COURT:
MR. KABUSK:
Are you conceding that point, Mr.
Yes, Your Honor.
All right.
Your Honor, with leave of the court,
I would still like to pursue this because it is relevant to
the events that occurred later, especially regarding the
Petitioner's behavior.
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THE COURT:
BY MR. KABUSK:
Q
A
You may ask the question.
Please proceed.
Okay. As I was saying, the blue pickup truck was
weaving back and forth between the right lane and the left
lane, completely within each lane. At the first -- he went
left, then right, once it weaved right -- it -- the white car
got in the left lane, took off, went around it. The blue
pickup truck continued at 15 miles per hour, continued weaving
from the right to the left lane and back. Three times it had
struck the curb along Gettysburg Road.
In seeing this, I radioed county dispatch to
advise Lower Allen Township police., since it was in their
jurisdiction, that I had a probable DUI in front of me, and I
requested that they respond to intercept.
They were responding, however, I got to the point
where I didn't feel comfortable to leave him continue driving
and I asked if I could make the stop. I got the okay to make
the stop. The vehicle turned right on the Carlisle Road,
which is when I activated my overhead lights, emergency
lights, I was in a marked police cruiser.
The vehicle turned on to Orchard Road and pulled
over. I made the'stop, radioed in, I knew that Lower Allen
Townshlp was in route. I approached the driver, which was Mr.
Portillo, in the black, it looks like black from here, with a
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A
arrived?
A
Q
A
pull over, zip sweat shirt. I asked for his license and
registration, insurance. He started looking for it. He
handed me his license, he was looking through -- it appeared
as though he was looking through for his registration and
insurance. Shortly after that, Officer'Thomas arrived on the
scene.
Q Did you notice anything unusual about the
Petitioner?
A Yes. He appeared intoxicated. I smelled the odor
of an alcoholic beverage from him. He had a blank stare. His
eyes were glazed. His movements were very slow, it appeared
as though he had a loss of dexterity.
Q Did you ask him to exit the vehicle?
A No, I did not.
Q You stated he was going 15 miles per hour on
Hartzdale Drive. What is the speed limit on Hartzdale Drive?
A Actually, it was on Gettysburg Road.
Q Sorry, Gettysburg Road.
I believe it is 40.
Then shortly after that you stated Officer Thomas
Correct.
What was your further involvement in the incident?
Actually, I handed Officer Thomas the driver's
license; and I already had a DUI prisoner, so I told him my
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opinion of the operator, I thought that he was intoxicated,
and I gave him a real quick synopsis of what I had viewed.
Then I left Officer Thomas to handle the stop.
MR. KABUSK: Thank you, no further questions.
THE COURT: Mr. O'Connor.
CROSS-EXAMINATION
BY MR. O'CONNOR:
Q Officer Snyder, we were in the preliminary hearing
a few weeks ago, is that correct?
A Yes.
Q In that preliminary hearing you testified that
other than asking for the license and the registration and the
insurance card, there was no other conversation between you
and the Defendant; and you testified that there was not any
other conversation between the two officers, is that correct?
A That is correct.
Q The first thing you normally do when you stop a
vehicle is ask for the driver's license, is that correct?
A License, registration and insurance.
Q That is standard procedure in any traffic stop,
right?
A
Pretty much, yes.
MR. O'CONNOR: That is all the questions I have.
THE COURT: Mr. Kabusk.
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MR. KABUSK:
THE COURT:
MR. KABUSK:
THE COURT:
Nothing further, Your Honor.
May this witness be excused?
Yes.
Mr. O'Connor, do you have any
objection to this witness being excused?
MR. O'CONNOR: No, Your Honor.
THE COURT: All right. You are excused, thank
you.
MR. KABUSK: The Department now calls Officer
Gregory Thomas, Officer Thomas.
OFFICER GREGORY THOMAS,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Thomas, please state your name and spell
your last for the record?
A My name is Gregory Thomas, T-H-O-M-A-S. I work
for the Lower Allen Township Police Department.
Q During the course of your official duties, had you
had occasion to investigate an alleged incident of DUI on or
about August 31, 2002?
A That is correct.
Q Would you tell the court about that incident,
please?
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A Sure. As Officer Snyder stated, he advised me on
the radio what he observed with the vehicle, being the blue
Dodge pickup truck. What he stated, that he believed the
driver of the vehicle was possibly DUI, and that he had
probable cause to make the stop on the vehicle. I gave him
the go ahead and do so since he was already on official
business in the township.
I responded to the scene just as Officer Snyder
had Mr. Portillo's driver's license.' I went up and spoke with
Officer Snyder, he told me what he observed, and his
observations.
At that point I took the driver's license from
Officer Snyder and he left. I stayed on the scene and
continued to ask Mr. Portillo for the registration, because he
was looking for that. He had a hard time. He was leafing
through paperwork and couldn't find it.
When speaking with Mr. Portillo, I smelled the
odor of an intoxicating beverage coming from him. His eyes
were droopy, they were bloodshot and glassy. When he spoke,
he had a definite slur in his speech.
When Mr. Portillo couldn't find the registration,
I asked him to exit the vehicle, which he did, and the
registration was on the seat right beside him.
Then I asked Mr. Portitlo if he would do some
standard field sobriety tests, which I am certified in, and
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asked him if he would follow me over to the parking lot across
the street, and he did do that.
I attempted to administer the standard field
sobriety test to Mr. Portillo, but he had a hard time -- first
he had a hard time walking over to the parking lot. He walked
with a staggered gait and stumbled a couple of times.
When I attempted the one leg stand, I gave the
instructions to Mr. Portillo, and he stated that I was talking
too fast and he was having a hard time understanding. So I
gave him the instructions two more times. Then he said he
still didn't understand.
I asked him if he could just lift one of his feet
and keep it up. At that point he lifted up a foot and he
couldn't keep it off the ground for longer than 2 seconds.
After he had put the foot down, he didn't attempt the test any
longer.
The next --
Q Excuse me, officer, after he put his foot down,
did you make any sort of conclusions regarding his sobriety
from performance on the test?
A That is correct, because it was my opinion that he
was under the influence of alcohol or controlled substance to
such a degree that he couldn't perform the test and couldn't
keep 'his balance.
Q Continue please.
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A The next standard fiel'd sobriety test I attempted
to administer was the walk and turn test. I asked Mr.
Portillo to stand in the heal-to-toe position. He would get
into that stance and had a hard time because of his balance
staying in that position, so he would take a regular stance, a
standing stance, with his feet side by side.
As I would attempt to show him the test as far as
me walking, taking heal-to-toe steps and giving the
instruction portion of the test without doing so, Mr. Portillo
would try to walk down the line at that point.
Each time I would have to have him go back into
the position, because I wanted him to remain in that position
until I was done explaining the test; but he would keep
walking down the line before instructed. As he would walk, he
wouldn't walk heal-to-toe and he would step off the line.
Based on what Officer Snyder had told me, what my
observations were of Mr. Portillo, being the odor of
intoxicating beverage on him, on his breath, his slurred
speech and his glassy eyes and droopy eyes, I was able to form
the opinion that Mr. Portillo was, indeed, under the influence
of an alcoholic beverage or controlled substance to such a
degree to render him incapable of safe driving, so I placed
him under arrest for DUI.
Q How did you do that?
A I told him that he was under arrest for DUI and
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cuffed him, searched him and placed him in the rear of my
vehicle and then he was transported to the West Shore Booking.
Q Did you have any conversations with him at the
scene or while in route?
A No more than just trying to explain the standard
field sobriety tests. He did tell me that -- just the basic
conversation that would occur on a traffic stop and a DUI
investigation.
Q Then what happened?
A I transported him to West Shore Booking. Agent
Joshua Sheaffer and Agent Dave Heckard were working at the
West Shore Booking. They had a lot of prisoners in there at
the time, at the time they were backed up, so Mr. Portillo
took his personal belongings and they were inventoried and he
was placed in a holding cell. I asked the booking agents to.
call me whenever they were ready to do the breathalyzer so
that I could read Mr. Portillo the implied consent warning.
At about 3:21 hours they notified me that ~hey
were ready to proceed with Mr. Porti~lo. So I went over to
the Booking Center and read Mr. Portillo the implied consent
warning.
MR. KABUSK: May I approach the witness, Your
Honor?
THE COURT: Certainly.
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(Commonwealth Exhibit No. 1 marked for identification.)
BY MR. KABUSK:
Q
please?
Would you identify Commonwealth Exhibit No. 1,
A Yes, this would be a copy of the chemical test
warning that I had read to Mr. Portillo.
Q Would you read aloud the portion that you read to
him?
A Sure. Please be advised that you are now under
arrest for driving under the influence of alcohol or a
controlled substance pursuant to Section 3731 of the Vehicle
Code. I am requesting that you submit to a chemical test of
breath.
It is my duty, as a police officer, to inform you
that if you refuse to submit to the chemical test your
operating privilege will be suspended for a period of one
year.
The constitutional rights you have as a criminal
Defendant, commonly known as the Miranda Rights, including the
right to speak with a lawyer and the right to remain silent,
apply only to criminal prosecutions and do not apply to the
chemical testing procedure under Pennsylvania's Implied
Consent Law, which is a civil, not a criminal proceeding.
You have no right to speak to a lawyer, or anyone
else, before taking the chemical test requested by the police
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officer nor do you have a right to remain silent when asked by
the police officer to submit to the chemical test. Unless you
agree to submit to the test requested'by the police officer
your conduct will be. deemed to be refusal and your operating
privilege will be suspended for one year.
Your refusal to submit to chemical testing under
the Implied Consent Law may be introduced into evidence in a
criminal prosecution for driving while under the influence of
alcohol or a controlled substance. That is what I read.
Q You read that word for word?
A Yes, sir.
MR. KABUSK: May I approach the witness, Your
Honor?
THE COURT: Certainly.
MR. KABUSK: I move for the admission of what has
been marked Commonwealth Exhibit No. 1, I provided a copy to
Mr. O'Connor.
THE COURT: Mr. O'Connor, do you have any
objection to its admission?
MR. O'CONNOR: No, Your Honor.
THE COURT:
BY MR. KABUSK:
Q
A
Commonwealth Exhibit 1 is admitted.
Then what happened?
At about 0400 hours, Agent Sheaffer tried to
administer the breath test using the DataMaster.
Agent
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Sheaffer gave him a verbal and then physical instructions as
far as -- visible instructions as far as showing him how to
blow into the Intoxilizer.
When it came time for Mr. Portillo to give a
sample of breath, Mr. Portillo sucked on the mouthpiece
instead of blowing, and then he stated he was not able to blow
into the instrument and wouldn't proceed any further.
deemed this to be a refusal under the Implied.Consent Law,
because he would not give a proper sample of breath.
THE COURT:
what do you mean?
A
abdomen.
When you say he was not able to blow,
He started breathing shallow and holding his
I believe he was saying, can't do, and he was
breathing real shallow as if he was having physical problems.
THE COURT: I see.
BY MR. KABUSK:
Q Did you stay there during the test?
A Yes, sir.
MR. KABUSK: Your Honor, I have a videotape,
The videotape of
perhaps maybe now is the time to show it.
the test is approximately 12 minutes.
THE COURT:
MR. KABUSK:
THE COURT:
Is there a transcription of it?
No, Your Honor.
I can't do this to the stenographer.
There is no way she can try to take down the audio portion of
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one of these tapes.
MR. KABUSK: I would at least request that you
view it so that you could see the Petitioner and what he did
to give you an idea of his actions that evening.
THE COURT:
MR. KABUSK:
THE COURT:
MR. KABUSK:
Is there any audio on it?
There is, Your Honor, yes.
Would that be important?
I could just admit this videotape as
evidence. Much of it is -- what the Petitioner says, much of
it is just mumbling, so the transcription would be difficult.
I could see to it that it would be transcribed, but I have to
tell you that much of it is the Petitioner mumbling when he
does speak.
THE COURT: Well, I wouldn't want to admit it
without having a transcription available. We can proceed on
with the rest of the hearing and then reconvene the hearing at
a later time when we have a transcript of it. But I have had
enough experience with these tapes to know that the
stenographer cannot do that. It takes hours and hours and
hours to try to decode the audio portion of the tape.
Your Honor.
MR. KABUSK:
THE COURT:
Then I will proceed without the tape,
Well, or you could have the officer
testify that that is, in fact, the tape'that was made that
night so you don't have to have him come back for the next
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hearing to authenticate it.
MR. KABUSK: We will do that.
THE COURT: Did you want to have that marked as
exhibit?
No. 3.
MR. KABUSK: Yes, Your Honor, Commonwealth Exhibit
A
any part with the tape.
THE COURT:
MR. KABUSK:
authenticate the tape.
THE COURT:
MR. KABUSK:
BY MR. KABUSK:
That would be for Agent Sheaffer, I did not have
Ail right.
I will have Officer Sheaffer
Ail right.
I will proceed.
Q You then provided a copy of the instrument
printout from Booking Agent Sheaffer?
A Yes, sir.
MR. KABUSK: May I approach the witness, Your
Honor?
THE COURT: Certainly.
(Commonwealth Exhibit No. 2 marked for
identification.)
BY MR. KABUSK:
Q Would you identify what has been marked as
Commonwealth Exhibit No. 2?
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A Yes, that is a copy of the DataMaster receipt as
far as the chemical testing.
MR. KABUSK: I provided a copy to Mr. O'Connor.
move for the admission of what has been marked Commonwealth
Exhibit No. 2.
THE COURT: Mr. O'Connor.
MR. O'CONNOR: No objection.
THE COURT: All right. Commonwealth Exhibit 2,
which is the printout from the Intoxilizer 5,000, is admitted.
BY MR. KABUSK:
Q So Officer Thomas, once again, would you describe
what happened during the actual test itself when the
Petitioner attempted to take the test?
A Yes. After being shown how to give a sample of
breath, Mr. Portillo, instead of blowing into the mouth piece,
into the DataMaster, he inhaled, I could tell by the sucking
in of his cheeks. And then I asked him -- Agent Sheaffer
first explained to him, no, you need to blow in, blow, not
suck. I believe he even showed him. again. Then Mr. Portillo
said he couldn't do it any more and just refused to give us
another sample of breath, another attempt.
Q Did you state earlier, he indicated that he was
having difficulties?
A He just hung his head and started holding his
abdomen, breathing deeply and pretending -- just saying I
I
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A
A
before.
can't do or something of that effect.
Q He said that, something to that effect?
A Yes.
Q Did you deem his actions as a refusal?
Yes.
Why is that?
Because he had no previous problems breathing
yes,
hours.
A
I have 0154.
MR. KABUSK: No further questions.
THE COURT: What time was the stop made?
The stop was made at 0154 hours, and then at --
The breath test was administered at 0400
THE COURT: Do your records indicate what time you
arrived at the Booking Center?
A It was -- the time of arrest was 0206 hours, and
it was shortly thereafter that I left for the Booking Center,
so I was there probably at about 0215 hours or 0220 hours,
because we were right around the corner from the booking
center, within a half mile of the booking center, maybe a
quarter of a mile.
THE COURT: All right. When you administered the
O'Connell warnings, what if anything did the Defendant say
about whether he understood what you were saying?
A He mumbled. He was passed out and I actually had
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to arouse him to read him the warning. Then he just -- he
mumbled. I asked him to sign, showed him where to sign,
showing that I read him the warning, and he refused to sign.
THE COURT: Did he say I refuse or did he simply
not sign or what happened?
A He just shook his head and wouldn't sign, he
didn't say much of anything. When he did talk, he mumbled
such that I couldn't understand what he was saying.
THE COURT: Did you say he shook his head when you
asked him to sign or did I misunderstand?
A I got a negative response. I can't recall whether
that was shaking of the head or just saying no; but if you
look at the copy, I even x-ed for him where to sign, and he
would not sign.
THE COURT: Did he take the pen in his hand?
A Yes.
wouidn't sign it.
He acted like he was reading over it, and he
THE COURT: Mr. O'Connor.
MR. O'CONNOR: Yes.
CROSS-EXAMINATION
BY MR. O'CONNOR:
Q Officer Thomas, I want to go over some questions I
asked you at the preliminary hearing; and you testified there,
is that correct?
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A Yes, I did testify there.
Q You stated at the preliminary hearing that upon
receiving Mr. ?ortillo's driver's license, then you asked Mr.
Portillo for his registration and insurance, is that correct,
or his registration, is that correct?
Yes.
Then you stated there was no response, is that
A
correct?
A
Well, he continued to fumble through his paperwork
at the time.
Q Then you stated that you saw his registration card
sitting on the seat next to him?
A Correct.
Q So you motioned him out of the car and you
retrieved the registration card yourself, correct?
A Correct.
Q While he was outside the car, you asked him
whether he spoke English, is that correct?
A I don't recall. I may have -- yes, I believe he
told me a little, if I remember correctly.
Q So you did ask him whether he spoke English?
A I believe I did, yes.
THE COURT: What was his answer?
A A little.
THE COURT: A little?
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A Yes.
BY MR. O'CONNOR:
Q Your testimony at the preliminar.y hearing was that
you weren't sure what he said but you thought it sounded
like, a little bit like a little, was that your testimony?
A I don't have a copy of my testimony; but to my
recollection, as best as I can remember what he said was a
little.
Q
A
Q
A
Q
Okay. Do you remember his exact words?
No, sir.
But you interpreted it to be a little?
Yes, sir.
Your testimony was you led Mr. Portillo to the
parking lot and gave him instructions about the field sobriety
test?
A
Q
Yes, sir.
You asked Mr. Portillo whether he understood your
instructions, is that correct?
A Yes.
Q And he indicated that he did not understand?
A Right, he asked me to slow down.
Q What were his exact words?
A I asked him if he understood. He said, no, and he
said, too fast, I think is what he was saying.
Q But you are not exactly sure that that is what he
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was saying?
A I don't know what the exact words were, I don't
know, without a recording of what the exact words, no, sir.
Q Your testimony at the preliminary hearing was you
didn't understand anything he said?
A No, I did not, I said at times I did not
understand what he said.
Q You interpreted it to mean that he did not
understand whatever you said?
A Sorry, repeat.
Q I think it was your testimony, wasn't it, that you
did not understand exactly what he said but you interpreted
whatever he said to mean that he did not understand?
A No, I believe I stated I didn't know his exact
words; but I knew that he did not understand -- whether he
said I don't understand or I can't -- I don't know what you
are telling me, he might have stated it a number of ways; but
he, in essence, told me that he didn't understand I was
saying. Do you understand what I am saying?
Q Well, not exactly.
A He stated, he told me, gave me a phrase, whether
it was I don't understand or I don't know what you are saying,
I don't know what the exact statement was, okay. But I knew
at that point he did not understand what I told him.
Q But you did testify at the ~reliminary hearing
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that you didn't understand anything he said?
A At times I did not. I didn't say everything he
understood. At times he would speak and I could understand
what he was saying and at times I couldn't because of how he
was mumbling.
Q Can you remember anything specifically that you
can remember that you understood, 'the exact words, in the
exact words that you were presented?
A What part of the stop or what part of the
investigation? At any time?
Q At any time?
A No would be a word.
Q Okay, thank you. You also stated that Mr.
Portillo was unable to follow your instructions as to how to
perform the sobriety tests?
A That is correct.
Q Then when you demonstrated, after you demonstrated
the test, he tried to the best of his ability to perform that
test, is that correct?
A Yes -- from what I could tell he was.
Then you also stated at the preliminary hearing
that there was no other attempt to communicate with Mr.
Portillo before the arrest?
A As far as any other type of conversation?
Q Yes.
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A
correct?
A
Q
Not that I recall that there was anything else.
Then you arrested Mr. Portillo at 2:06 hours?
That is correct.
And transported him to the Booking Center, is that
That is correct.
You testified that there was no attempt to
communicate with him on the way to the Booking Center, isn't
that correct?
A Correct.
Q Then you read Mr. Portillo the implied consent
form for the first time at 3:26 hours, is that correct?
A 3:21 I have written down.
Q So during the hour and 15 minutes from the time of
the arrest to reading of the implied consent form, there was
no attempt by you to communicate with Mr. Portillo, is that
correct?
A That is correct, other than getting -- I am not
sure if I was there for the inventory taking or not; but I
don't believe'there was any other attempt for me.
The booking agents were extremely busy that night.
I don't know if it was myself or one of the booking agents
that took the belongings off of Mr. Portillo for an inventory;
but that may have been one of my duties at the time just
because they were so busy. But I know he was placed within a
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couple of minutes into a holding cell because they were too
busy and they could not proceed to. Mr. ?ortillo. Then I left.
So I was not there.
Q During that hour and 15 minutes, you didn't hear
Mr. Portillo communicate with anybody?
No.
You didn't hear anybody communicate with Mr.
A
Portillo?
A
Q
No.
When you read the implied consent form, you read
that at your normal speed, is that correct?
A That is correct.
Q Then your testimony that you asked Mr. Portillo
whether he understood?
A That is correct.
Q Is that correct?
A Well, yes. Then you also ask them to sign stating
that it is not even a signature that they understood what was
read to them, just that it was read to them.
Q Okay. He indicated that he could not understand
what you were reading to him, didn't he?
A That I am not sure. I don't remember that or not.
Q Your testimony at the preliminary hearing, I am
going to refresh your mind,' is that he shook his head from
side to side, is that what you stated?
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A I don't have it. I might have, yes.
Q Then you also stated that he took the paper from
you, the implied consent form?
yes .
A
Right.
He looked at it for a few seconds?
As if he was attempting to read it or reading it,
Q
Then he shook his head from side to side?
Right.
So you could not be sure that he understood the
implied consent form, correct?
A That is correct.
Q You stated that you did not know whether the
police department has a version of the implied consent form in
Spanish?
A We do not.
Q You checked on it afterwards?
A Yes.
Q You stated that as far as you know, the police
department had no procedure for providing an interpreter to a
Spanish speaking person?
A It depends on certain interviews we do. At the
time when -- if we need to interview a person, we will contact
one if one is available.
Q But at the time of the preliminary hearing, you
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testified that as far as you knew there was no procedure for
providing an interpreter?
A Right. The general -- what we usually do is see
if there is a Spanish speaking officer around, on duty in the
county, if we need one; but I didn't feel it was necessary at
the time because I didn't -- it was my impression that he
could understand enough to proceed with what we were doing.
Q Your testimony was that the Police Department has
access to an officer who speaks Spanish?
A No, I said at times we will check if we want to,
to see if there is a Spanish speaking officer available in the
county. I did not check that. Your question was at what time
I did. I did not.
Q Under the circumstances, you could, if you wanted
to have taken Mr. Portillo for a blood test, is that correct?
to.
A
Yes, I could.
You elected not to?
Yes, I could get into reasons why if you want me
Q
No.
Okay.
That night you did not bother to check out whether
someone could interpret for Mr. Portillo or to try to help him
out in any way, is that correct?
A Right. I also knew that if the Booking Center,
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needs interpreters, they can attempt to get some also at the
time; but it was -- I was under the impression at the time
that I didn't need to do that.
necessary.
Q
I didn't feel it was
During the preliminary hearing we went over the
mention that.
had.
events of that night in lengthy detail, isn't that correct?
A Yes, sir.
Q You never mentioned anything about him passing out
during that preliminary hearing, right?
'A I don't know that I did or not, sir.
Q You never mentioned anything about his breathing
shallow or holding his abdomen?
A No. I did explain that he attempted to show it
that he was having a breathing problem. I believe I did
If I did not, I didn't; but I thought that I
Your Honor.
MR. O'CONNOR: I don't have any further questions,
THE COURT: Mr. Kabusk.
MR. KABUSK: I have a few follow-ups.
REDIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Thomas, during -the portion of the incident
involving the field sobriety test, you asked the Petitioner if
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he understood; and it was indicated that -- you stated that
somehow he indicated that he did not understand, is that
correct?
A Right, and'he told me that I was going too fast or
to slow down.
Q Have you been involved in other stops involving
someone under the influence of alcohol or controlled
substance?
A
Q
Yes, many.
Is it unusual that a person under the influence
would indicate to you that they did not understand your
instructions?
A Yes.
Q Is that unusual?
A No, it is not unusual.
Q Why would that not be unusual?
A Because they are impaired to the fact that they
have a hard time understanding the instructions and watching
the instructions at the same time.
Q When he stated that he didn't understand, was it
your opinion that it was because he didn't understand your
words or because he was impaired?
A I took it for both, really, honestly. He was so
intoxicated he had a hard time even walking.
Q So he was just --
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Q Okay.
words that he said.
anything?
A He didn't say I don't understand English, you
know, I don't understand what you are saying, he just -- it
was just like he didn't understand the instructions.
Then you were asked if you recalled any
I believe that you said you didn't recall
A It wasn't that he spoke to me, he did speak with
me. I don't want to say that he said something exactly and
get it wrong.
Q Did he speak to you during the incident?
A At times as far as, you know, asking him if he
would do some field sobriety and then him telling me to slow
down with the instructions.
Q So he did respond to your qUestioning or
instructions verbally occasionally?
A Yes, occasionally.
Q So he did speak to you but you don't recall the
exact words, is that correct?
A That is correct.
Q You were asked whether you made any attempt to
communicate while you were transporting him. Is it unusual
that he made no attempt to have a conversation or communicate?
A
NO.
Why is that?
We were a quarter mile from the station.
It took
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maybe all of 60 seconds to get there. I am contacting on the
radio to let the Booking Center know that I am coming in with
one. I am letting my county communication center know that I
have a prisoner, where I am going. By the time I am finished
with all that, I am right around the corner of my station.
Q Then when you arrived there he was eventually put
in a holding cell, is that correct?
A Yes, sir.
Q You were asked if you attempted to communicate
while he was in the holding cell during that period of time.
Is it unusual that you would not attempt to communicate with
someone?
A The reason why we have a Booking Center is that we
can drop off a prisoner, take care of their immediate needs so
that we can go out and look for other violators or offenders.
Q In other cases involving alcohol impaired persons,
did you make any attempts to communicate with them other than
what was necessary?
A That is correct.
Q In this particular case, is that why you didn't
attempt to make any further communications?
A
Yes, sir.
Because he was clearly impaired, is that correct?
That is correct.
You read the DL 26 to the Petitioner, that is the
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implied consent. He shook his head side to side holding the
pen, is that correct?
A Yes.
Q In your dealing with those who have been impaired,
is it unusual that a person would react that way to the
reading of the warnings?
A Yes, I have had other folks refuse to sign and
still give the test, still give a good sample.
Q Have you ever had folks who spoke English
perfectly well who either refused 'to sign or said they didn't
understand or shook their head or something like that?
A Correct, and then you try to give them a brief
summary of what exactly you are saying, because there are a
lot of technical jargon as far as Miranda warning. You don't
have the right to speak with an attorney while the test is
being performed. Some of the people don't understand that it
is a civil, not a criminal matter, so you have to go into
conversation to explain that to them what is going on here.
Q So his actions may have been -- did you conclude
that they were as a result of his impairment, not as a result
of any difficulties with the language?
A Yes, that is correct.
Q You were asked why you did not seek an
interpreter; and you stated that you thought he could
understand English well enough to proceed, is that correct?
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A
Yes.
What led you to that conclusion?
Because if I would give him little commands like
sit here or put your hands behind your back or things like
that, he would do it. It was convenient for him to not -- he
would understand if I gave him little verbal commands. You
know, I wasn't under the impression that he did not understand
English at all. He would understand minor commands, so I
didn't feel that it was necessary 'to get an interpreter.
Q Then when he was requested to submit to the test,
he actually did attempt to take the test, is that correct?
A Yes, sir.
Q Then you stated that he indicated that he -- or
you concluded something to the effect that he had a breathing
problem?
A Well, that he was giving the impression that he
was having a breathing problem. Up until that point he was
physically fine, except for the time that he was sitting in
the chair, semiconscious, because he was passed out; but then
once aroused, we explained the test. Then after he inhaled on
the mouthpiece and the Intoxilizer, instead of exhaling, then
at that point he was trying to give the impression that he was
having a hard time breathing or catching his breath.
Q Then at one point did you ask him something to the
effect that was he going to take the test?
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A Correct.
Q How did he respond?
A I got a negative response.
Q What was that negative response?
A I can't remember the exact words, whether it was a
shake -- I believe he was shaking his head at that time. And
I don't know what verbal statement he made or stated, but he
was obviously not going to proceed with the test any further.
Q He never did submit to the test, did he?
A That is correct.
MR. KABUSK:
THE COURT:
No further questions.
You said that you didn't give him a
blood test for some reason. Did you want to explain that.
A I can't, you mean -- for one, it is officer's
discretion; number two is our Department policy is that we
take any DUI we have that we take for blood, we take them to
Holy Spirit Hospital.
Most of the other Departments in both Dauphin and
Cumberland County take theirs to Harrisburg Hospital,
therefore, Holy Spirit Hospital is not very proficient as far
as taking a blood sample. The last time I was there, I was
there an hour and 15 minutes for a blood sample and it is not
efficient. It takes up more of my time to go over there than
to just take somebody to West Shore Booking where I know it
gets handled correctly and I can drop them off and leave and
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get right back out and do my job.
THE COURT: Ail right.
Mr. O'Connor.
RECROSS-EXAMINATION
BY MR. O'CONNOR:
Q Officer Thomas, Mr. Portillo never said to you,
you are going too fast and please slow down? He never used
those words to you, is that correct?
A I can say that -- I don't know what his exact
words were, sir.
Q He never stated to you I do not understand, is
that correct?
A He may have stated I don't understand at some
point.
Q
A
is possible.
Q There is no way that you could be sure that his
inability to understand the implied consent warning was the
result of his impairment or the result of his inability to
know the English language or a combination of the two?
A I couldn't know for certain, that is correct.
MR. O'CONNOR: No further questions, Your Honor.
THE COURT: Mr. Kabusk.
MR. KABUSK: Nothing further with this witness,
Was it more likely he said no English, no English?
No, I don't believe those words coming out, but it
I can't say yes or no.
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Your Honor.
THE COURT: You may step down, thank you.
this witness be excused?
MR. KABUSK: Yes, but I would prefer that he
stays, so I would ask that he stays.
Booking Agent Joshua Sheaffer.
JOSHUA SHEAFFER,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
May
The Department now calls
BY MR. KABUSK:
Q Booking Agent Sheaffer, please state your name and
spell your last name for the record?
A Joshua Sheaffer, S-H-E-A-F-F-E-R.
Q Where are you employed?
A Cumberland County District Attorney's Office,
Central Processing.
Q During the course of your official duties, have
you had occasion to be involved in the investigation of an
alleged incident of DUI on or about August 31, 2002?
A Yes, sir.
Q Could you tell the Court about that incident?
A That night Officer Thomas radioed us that he was
going to be coming in with one for ]DUI progressing. At that
time we were busy and we had a significant number of people in
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there already ahead of the Defendant, Mr. ?ortillo.
Officer Thomas brought the Defendant into the
center, he was searched, properly inventoried, placed into a
holding cell at which point he fell asleep in the holding
cell.
When we were able to finally get to Mr. Portillo,
we had to walk him, which at that point he became sort of
uncooperative with us. He didn't want to wake up or stand up.
We actually had to help him up out of the cell.
He was then placed in the chair next to the breath
testing devices and at which point he proceeded to pretty much
either fall asleep or pass out in the chair again.
Officer Thomas had been contacted, he came and
read the DL 26 implied consent form. The Defendant was given
the instructions for the breath test, which were both verbal
and as -- I demonstrated how to blow into the treatment.
Q How did you demonstrate that?
A I took the mouthpiece and stated that he needed to
blow steadily into the instrument and made a tight seal and
blew in, demonstrated that.
Q This was a separate mouthpiece than the one that
was on the instrument?
A Yes, sir.
Q Was the Petitioner watching you at this point?
A He appeared to be.
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Q
Q
Appeared to be?
Yes.
Did you notice anything unusual about him?
He was overly drowsy, it was hard to keep him
awake. There was a strong odor of an alcoholic beverage
emanating from him.
Were you the breath test operator during the
Q
incident?
A
Q
A
Yes, sir, I was.
Then what happened?
When it came time for Mr. Portillo to provide the
samples of his breath, I handed him the tube from the BAC
DataMaster with the mouthpiece on it. He attempted to provide
a sample, however, it was apparent that he was not blowing
into the instrument, that he was sucking in, as by his cheeks
were caving into his mouth like somebody sucking very hard
with a straw.
I went over the instructions with him again,
explained to him that he needs to blow into the instrument.
At some point through this Mr. Portillo would not attempt to
provide another sample. He sat there with his arms crossed on
the chair with his head down, would not really give anybody
any type of verbal answer at that point of what he would do
other than sit there with his head down.
Q Then what happened?
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A
refusal.
Q
Officer Thomas at that point deemed this to be a
At the time was the instrument certified as
accurate and was it functioning properly?
A To the best of my knowledge it was certified to be
accurate, and the BAC DataMaster was operating functionally.
THE COURT: Officer, I called this an Intoxilizer
5000, was that not correct?
A We have two different breath testing instruments,
one is the Intoxilizer 5000 and the other one is the BAC
DataMaster.
THE COURT: That is the one you were using?
A Yes, sir.
THE COURT: All right.
BY MR~ KABUSK:
Q Did the Petitioner inform you of any physical or
medical condition that may have prevented him from properly
performing the test?
A Not from performing the test; but after he first
attempted to provide a sample, he did state something about
not being able to do it and his breathing -- he seemed to be
breathing fine up to that point, however, then it seemed like
he tried to change his breathing pattern to make it appear
that he had difficulties.
Q Did he ever provide two consecutive adequate
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breath samples?
A No, sir.
Q Was it your understanding that the Petitioner
understood what you were telling him to do?
A Yes, sir.
Q Did he ever tell you that he did not understand
what was going on?
A He never -- he asked us to repeat some stuff and
we would repeat it; and from his reactions to what we told
him, it did appear that he understood what we were explaining
to him.
Q As a booking agent you have given many tests, is
that correct?
A Yes, sir.
Q Have you ever had an incident where you have given
someone the instructions on how to blow and they did not blow
according to your instructions?
A Yes, sir.
Q Why is that?
A Anywhere if that would -- they just would not
follow the instructions that I gave them; or they were too
impaired by an alcoholic beverage to properly function,
functionally provide a sample.
Q Many times they attempt to blow and pretend; or
actually many times they pretend to blow and don't blow, is
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that correct?
A Yes, sir.
Q Have you had other occasions where people that
pretend to blow either sucked or put their tongue over the
mouthpiece?
A I have had it where I ]nave seen where people have
tried to suck in on the instrument, have either covered the
tip and mouthpiece with their tongue or have not made a tight
seal and let the air escape around the mouthpiece instead of
going directly in.
Q How do you take those behaviors, what do you deem
those sorts of behaviors?
A Those sorts of behaviors are, as followed through
on the DL 26 form, any reiteration form that we have, that
they are not following our instructions properly and that type
of behavior is deemed as a refusal.
Q Is that what was happening in this case?
A Yes, sir.
Q Then additionally, did the Petitioner appear to,
what, you said develop some sort of physical difficulties?
A From my observations, it appeared that he did not
have any sort of problem breathing up until the point of where
we had to go through and re-explain the instructions for the
breath test to him; then it appeared to me that his breathing
pattern changed. And I can't remember the statement that he
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made word for word but it was something to the effect that he
couldn't provide any air for the sample.
Q Was a tape made of the incident?
A Yes, sir.
MR. KABUSK:
here for viewing, if you would like to view it.
THE COURT: Are we going to have.that marked and
identified by the witness?
A Yes.
BY MR. KABUSK:
Q Would you identify this?
A That is a videotape with the name of Emilio
?ortillo on the front of it. It appears to be a copy.
MR. KABUSK: Could I have this marked as
Commonwealth Exhibit No. 3, please.
(Commonwealth Exhibit No. 3 marked for
identification.)
MR. KABUSK: Your Honor, I have this available for
viewing. Would you like to have this now?
THE COURT: I will if you and Mr. O'Connor can
agree that the transcript will be supplied to the record
before I make my decision.
Your Honor, I have a copy of the tape
MR. KABUSK: Do you want to do that?
MR. O'CONNOR: Your Honor, I would like to have
the opportunity to be able to cross-examine the witness after
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viewing the tape. I just didn't want to present it as
evidence to be viewed without the benefit of
cross-examination.
THE COURT: You would be entitled to
cross-examine. The other way we could do it is have
Commonwealth through a witness put on the record any of the
verbal content which you feel is important to the tape and to
my decision today.
MR. KABUSK: Your Honor, in that case, I think it
has already been done through the officer and through the
booking agent. Our resources are very limited in order to get
this transcribed, so I will just put it in evidence and you
can do with it what you may.
THE COURT: Well, to the extent that either
counsel wants any of the verbal content to be recognized by
the court, you should bring that out through this witness or
through the Petitioner. With that understanding I will be
glad to view it. The Commonwealth Court, if this case is
appealed, will not have that tape, they won't be able to look
at it, unless they specifically ask the prothonotary to send
it up to them, which they may or may not do. There are a
number of judges on that court, and it is unreasonable to
expect them to send the tape around the state to each judge's
office. So that is why I insist that the record include the
verbal content, just for their benefit, not for mine.
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MR. KABUSK:
without the tape.
THE COURT:
Then the department will proceed
You could do that or you could simply
bring out though a witness the verbal content that you want on
the record. It would be helpful to me to see what happened at
that time.
MR. KABUSK: Then I could make an effort. It
would take a while for our office to do that. We don't have'
anyone who transcribes. So between having someone do it, then
in reading it and getting it to Mr. O'Connor's office to have
him make a reading of it. We will go ahead and see to it, if
that is acceptable to Mr. O'Connor.
MR. O'CONNOR: I have to state what I said before,
without the opportunity to cross-examine the witness.
THE COURT: But you certainly will have the
opportunity to cross-examine this witness, if that is what you
mean.
MR. O'CONNOR: After I see the tape?
THE COURT: Certainly.
My suggestion would be simply bring out through
the witness the verbal content that you think is important.
If you catch something on the tape where you think the
Petitioner said I understand or I don't understand or speak
slowly, you could just have the witness say at a certain point
in the tape he spoke in English and said speak slowly,
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whatever.
MR. KABUSK: Then I will do that. If I could have
leave to do that contemporaneously with showing of the
videotape.
THE COURT: You may, you will have to refer, when
you ask the question, to the time shown on the tape.
MR. KABUSK: Yes, Your Honor.
THE COURT: Certainly.
I do have an adoption hearing at 11:15, so we will
have to recess at that point and then reconvene after the
adoption to complete this hearing.
MR. KABUSK:
proceed now?
THE COURT:
Okay, thank you.
I think so.
Do you want to
Let the record indicate that the court is viewing
the videotape marked as Commonwealth Exhibit 3. The
stenographer is excused from attempting to take down the
statements on the videotape.
BY MR. KABUSK:
Q Booking Agent Sheaffer, when you gave him the
instructions at approximately 40148, did he make any physical
gestures or did he say anything to you?
A Well, as viewed on the tape there when I was
giving him the instructions, he did nod his head in a manner
indicating to me that he understood.
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Q Then he began to blow, then what happened?
A He was handed the mouthpiece and he attempted to
blow, however, I was able to see and hear that it was more of
a sucking. You could see his cheeks come in and I instructed
him that he needed to blow. Got out another mouthpiece, which
I then demonstrated to him to blow; and he just would not
follow any of the instructions.
Q Thank you. He just said something, can you repeat
what he said?
A From what I heard, it sounded that he stated that
he did not have the breath to blow.
There was another voice on there, whose voice was
Q
that?
A
A
A
That was Officer Thomas' voice, sir.
THE COURT: What did he say?
Officer Thomas?
THE COURT: Yes.
He asked if he was going to take the test.
THE COURT:
BY MR. KABUSK:
Q
A
What was the response?
What was the response?
I deny it -- right prior to Officer Thomas asking
that, he said -- the Defendant stated something to the effect
that he couldn't do it. Officer Thomas asked him if he was
going to do it, and I can't remember what was exactly said
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after that.
Q At 40430, so he is making physical movement, what
sort of fiscal gestures is he making?
A He is making gestures with his hands, pushing out
towards us and keeps bending down at the chest and waist and
putting his head down.
Q Is he indicating breathing problems?
A His breathing pattern seemed to change from when
he initially came in. He appeared to be initially breathing
fine, now it appears that he is laboring, so to speak, at
breathing.
Q Now at 40452, Petitioner just said something, can
you make out what he said?
A It sounded like he said, no, I can't do it.
Q There were just two voices on there, could you
repeat what they said?
A I heard Officer Thomas' voice say, you know, you
are going to lose your license for a period of a year; and the
Defendant said something, which I did not completely catch.
Q Once again at 40515 Petitioner said something,
could you make out what he said?
A
your voice?
A
I could not make that out, sir.
There was just a voice on there at 40540, was that
Yes, sir.
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sample.
Q
What did you say?
I asked him if he was going to provide a breath
Q What was his response?
A He put his head down and never gave any
significant response to me.
Q Now, there was a voice on there, whose voice was
that and what did he say?
A That was Officer Thomas' voice and he said that
about you have been breathing fine all night and now you are
acting like you are having breathing problems.
Q Did you catch the rest of that? I cut that off.
A No, I didn't.
Q That was Officer Thomas's voice, what did he say?
A He said at the end that about that being fine,
that he would submit the refusal form to ?ennDOT.
MR. KABUSK:
tape, Your Honor.
THE COURT:
That is the relevant portion of the
For purposes of the record, at what
time did you stop the tape as shown on the tape?
MR. KABUSK: 40718.
THE COURT: Let the record indicate that the court
has completed viewing Commonwealth Exhibit 3 to the point on
the tape that reads 40718. You may step down. We are running
into our time allotted for the next hearing and it seems clear
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that we will probably not finish this hearing today.
We will enter this order: And now, this 23rd day
of December, 2002, upon consideration of Petitioner's Appeal
from Suspension of Operator's License Privileges at No.
02-5030 Civil Term and following an. initial period of hearing,
which has not been completed, the record shall remain open and
counsel are requested to contact the court's secretary for
purposes of scheduling a concluding period of hearing.
It is noted that at the time of adjournment on
today's date, Commonwealth Exhibits 1 and 2 had been
identified and admitted, and Commonwealth Exhibit 3
(videotape) had been identified and viewed by the Court but
not yet admitted. It is noted further that at the time of
adjournment on today's date the Commonwealth was subjecting
Joshua Sheaffer to direct examination, and the Petitioner had
not yet commenced his case-in-chief.
In addition, it is noted that Haydee Greene was
serving as interpreter for the Petitioner in this case.
Counsel for Petitioner has indicated that he will notify the
stenographer in the event that he wishes a transcript prepared
of today's proceeding. The Commonwealth through its counsel
has indicated that it is not requesting a transcript.
The stenographer is directed to retain the
exhibits which have been admitted, and that counsel are
directed to retain the exhibit which has not yet been
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admitted.
Do you counsel wish a transcript to be made of the
proceedings so far?
MR. O'CONNOR:
that?
THE COURT:
MR. O'CONNOR:
THE COURT:
MR. KABUSK:
THE COURT:
later date?
Your Honor, will we have to pay for
Yes.
Can I let your office know at a
Certainly, Mr. Kabusk?
No, Your Honor.
Ail right, we will add to the order:
Counsel for Petitioner has indicated that he will notify the
stenographer in the event that he wishes a transcript prepared
of today's proceeding. The Commonwealth through its counsel
has indicated that it is not requesting a transcript.
The stenographer is directed to retain the
exhibits which have been admitted, and that counsel are
directed to retain the exhibit which has not yet been
admitted.
Court is adjourned.
(Court adjourned at 11:30 a.m.
52
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on the
above cause and that this is a correct transcript of same.
Official Stenographer
The foregoing record of the proceedings on the
ng of the within'matter is hereby approved and directed
to be filed.
Date
53
EMILIO J. PORTILLO,
Petitioner
V. :
:
COMMONWEALTH OF :
PENNSYLVANIA, DEPARTMENT :
OF TRANSPORTATION, BUREAU:
OF DRIVER LICENSING, :
Respondent :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-5030 CIVIL TERM
ORDER OF COURT
AND NOW, this 19th day of March, 2003, upon
consideration of Petitioner's Appeal from License
Suspension of Operator's License Privileges, and following
a hearing, the record is declared closed, and the matter is
taken under advisement.
G. Patrick O'Connor, Esquire
For the Petitioner
George Kabusk, Esquire
For the Respondent
wcy
By the Court,
/ / / / ~
J. l~.e~l&y 0l~r, Jr. ? 'J.
?
EMILIO J. PORTILLO,
Petitioner
Vo
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-5030 CIVIL TERM
ORDER OF COURT
AND NOW, this 20th day of March, 2003, upon consideration of Petitioner's
Appeal from License Suspension of Operator's License Privileges, and following
hearings held on December 23, 2002, and March 19, 2003, Defendant's appeal is denied
and the action of the Respondent by notice dated September 19, 2002, in suspending
Defendant's driving privilege for a period of one year as a result of a chemical test refusal
is affirmed.
G. Patrick O'Connor, Esq.
Attorney for Petitioner
George Kabusk, Esq.
Attorney for Respondent
'rc
BY THE COURT,
d