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DAVID GILBERT SUTTON, I IN THE COURT OF COMMON PLEAS OF
Appellant . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
. 11- /DO t I.-i~ f~1-w,-
.
NO.
I' v. .
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.
.
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" COMMONWEALTH OF PENNSYLVANIA, Appeal of Operators License
.
" .
DEPARTMENT OF TRANSPORTATION, . Suspension - Chemical Test
.
BUREAU OF DRIVER LICENSING, Refusal
Appellee .
.
ORDBR OF COURT
AND NOW this /./Ii day of ""., '" , 1997, upon
I
consideration of the within APPEAL OF 6PERATORS LICENSE SUSPENSION,
it is hereby
ordered that a hearing shall be
,,1...
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day of
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,~
held regarding this
, 1997, at /3c)
matter at on the
~./p.m.
in Courtroom No.
of the cumberland County
Courthouse, Carlisle, Pennsylvania.
A supersedeas is granted pursuant to Vehicle Code Section
l550(b)(l) until such time that this honorable court resolves this
appeal.
.I
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/
J.
Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Room l03,
Transportation & Safety Building, Harrisburg, PA l7l20
-Patrick F. Lauer, Jr., Esq., 2l0B Market St., Camp Hill, pa 170ll
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5. The Appellant submits his actions did not constitute a
refusal.
6. The Appellant submits the arresting officer used vulgarity
towards the Appellant and threatened the Appellant to let the
officer do his "fucking" job.
7. The Appellant was not informed he would lose his license for
one year or any amount of time if he refused a chemical test.
B. The Appellant was not observed driving, operating, or being
in actual physical control of a vehicle while under the influence
of alcohol.
9. The Appellant did not drive or operate a vehicle while under
the influence of alcohol.
lO. The Appellant merely used a cellular phone in his car and he
was not in control of the vehicle, i.e., the Appellant did not
intend to drive, the engine was not running, and the lights were
off on the vehicle.
WHEREFORE, your Appellant respectfully requests your
Honorable Court to schedule an evidentiary hearing on the matter.
Respectfully submitted,
~ I ,\
Date:
\_ ~/j 1
Pa rick F.'Lauer; Jr., Esquire
2l Market Street, Aztec Building
Camp Hill, Pennsylvania l70ll-4706
10# 46430 Tel. (7l7) 763-lBOO
DAVID GILBERT SUTTON,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
NO.
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
ATTORNEY VERIFICATION
I, Patrick F. Lauer, Jr., Esquire, undersigned counsel for
Appellant, David Gilbert Sutton, hereby verifies and states that:
l. I am the attorney for Appellant, David Gilbert Sutton.
2. I am authorized to make this verification on my client's
behalf;
3. The facts set forth in the foregoing Appeal are known to me
and not necessarily to my client;
4. The facts set forth in the foregoing Appeal are true and
correct to the best of my knowledge, information and belief.
5. I am aware that false statements herein are made subject to
the penalties of 18 Pa. C.S. 4904, relating to unsworn
falsification to authorities.
Date:
\.:- '~l'
\ "',) - i
,
~es~ectfu1lY submitted,
, ).J /)
/ I ' ,
1-<-7 I '- .
Pa\\:~ick F. Lauer;' Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania l701l-4706
10# 46430 Tel. (717) 763-l800
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
DECEMBER 11, 1996
DAVID GILBERT SUTTON
b13 N HANOVER STREET
17013
9b337&41bOOO&&3 001
12/04/199b
23252404
04/27/1974
CARLISLE PA
Dear Motorist 1
As a result of your violation of Section 1547 of the Ve-
hicle Code, CHEMICAL TEST REFUSAL on 11/16/1996, YOur driVing
privilege is being SUSPENDED for a period of 1 YEARCS).
In order to comply with this sanction YOU are reqUired to
return any current driver's license, learner's permit and/or
temporary driver's license Ccamera card) in your possession
no later than the effective date listed. If YOU cannot com-
ply with the requirements stated above, yOU are required to
submit a DL16LC Form or a sworn affidavit stating that yOU
are aware of the sanction against your driving priVilege.
Failure to comply with this notice shall result in this Bu-
reau referring this matter to the PennsYlvania State Police
for prosecution under SECTION 1571Ca)C4) of the Vehicle Code.
Although the law mandates that your driVing priVilege is un-
der sUspension even if YOU do not surrender your license,
Credit will not be!ljn until "11 current driver's license
productCs), the DL16LC Form, or a letter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR 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.
The effective date of sUspension is 01/15/1997, 12101 a.m.
..............................................*...................*.
/WARNINGI If YOU are convicted for driving while your license is !
Isuspended, the penalties will bel not less than 90 days imprison-!
Iment and a $1,000 fine and an additional 1 year suspension. !
....................................................................
963378416000883
SEND FEE/LICENSE/DL-16LC/TOI
Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8693
INFORHATION (7100
IN STATE
OUT-OF-STATE
TOO IN STATE
TOO OUT-OF-STATE
AH TO 9100 PH)
1-800-932-4600
717-391-6190
1-800-228-0676
717-391-6191
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\!I, DAVID GILBERT SUTTON,
Appellant
I
..
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
.
.
I NO. 97-l00 CIVIL TERM
v.
COMMONWEALTH OF PENNSYLVANIA, I
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
Appeal of Operators License
Suspension - Chemical Test
Refusal
AND NOW this
ORDER OF CO~., )
LJo day of '" ~
, 1997, upon ,
!
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agreement of Defendant's counsel and Chief Counsel, the License
Suspension Hearing scheduled for Monday, March 3l, 1997 at 1:30
a.m. in Courtroom No.2, has been continued until Monday, May 5,
1997 at l:30 p.m.
//
'i
J.
BY THE
/
,
Distribution: I
-PA Dept. of Transportation, Office of Chief Counsel, Room l03,
Transportation & Safety Building, Harrisburg, PA l7l20
-Patrick F. Lauer, Jr., Esq., 2l0B Market St., Camp Hill, Pa l70l1
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DAVID GILBERT SUTTON
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
I
J
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V.
COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING
,
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,
97-0100 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
OPINION AND ORDER OF COURT
BAYLEY, J., May 8, 1997:--
Respondent, Commonwealth of Pennsylvania, Department of Transportation,
pursuant to 75 Pa,C,S. Section 1547(b)(1), suspended the driving privilege of
petitioner, David Gilbert Sutton, for one year for failing to undergo an Intoxilyzer test
following his arrest for driving under the influence. Petitioner filed this appeal upon
which a hearing was conducted on May 5, 1997. We find the following facts.
In the early morning hours of November 16, 1996, Corporal Steven Junkin of
the Pennsylvania State Police was driving in the 100 block of West High Street in
Carlisle when he saw petitioner was having difficulty getting a key into the door lock
of a car parked on the right side of the road. The trooper passed petitioner and
continued to observe him in his rearview mirror for about twenty seconds. He then
made a U-turn and drove back toward petitioner's car. As he went by the trooper
saw that petitioner's car was running because exhaust was coming out of the tailpipe,
At that point, the trooper did not see petitioner, The trooper went around the block,
came up behind petitioner's car, and saw the brake lights of petitioner's car "like
tapping on and off a few times," but he still did not see anyone inside the car.
97-0100 CIVIL TERM
I
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(
Trooper Junkin got out of his patrol car and walked up to petitioner's car, He
then saw petitioner behind the steering wheel leaning over a console trying to activate
a phone. Petitioner was pushing at phone buttons but missing some of them,
Trooper Junkin asked petitioner if he was okay. When petitioner said "Yes," the
trooper smelled an alcohol beverage and noticed that petitioner's speech was slurred,
Trooper Junkin had petitioner step out of the car, and he had to help petitioner keep
his balance as they walked to a curb. Petitioner's eyes were bloodshot and glassy,
Trooper Junkin had petitioner do walk-and-turn and one-leg stand field sobriety tests,
both of which petitioner failed to complete.
The trooper placed petitioner under arrest for driving under the influence and
took him to the Carlisle State Police Barracks, On the way, Trooper Junkin asked
petitioner to take a chemical test of his breath and petitioner said, "No." The trooper
then told him that he would lose his license for one year if he failed to take a test.
Petitioner said, "We'll see, I've been through this before," At the barracks Trooper
Junkin read petitioner a Section 1547 warning that did not include O'Connell
warnings,' Trooper Junkin then read petitioner his Miranda rights.2 Petitioner still
refused to take a test and said he wanted to talk to an attorney. Trooper Junkin then
told petitioner that he did not have a right to an attorney before deciding to take the
test, and he read him the following Section 1547 chemical test warnings from form DL
1, Commonwealth v. O'Connell, 521 Pa. 242 (1989).
2, Miranda v. Arizona, 384 U,S, 436, 86 S.Ct. 1602, 16 L,Ed,2d 694 (1966).
-2-
t
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97-0100 CIVIL TERM
26:
1 Please be acvised 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.
2 I am requesting that you submit to a chemical test of Blood (breath,
blood or urine Officer chooses the chemical test.)
3 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.
4 a) 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,
b) You have no right to speak to a lawyer or anyone else before
taking the chemical test requested by the police 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.
c) Your refusal to submit to chemical testing under the Implied
Consent Law may be introduced into evidence in a criminal
prosecution for driving under the influence of alcohol or a
controlled substance.
,
I
t
Trooper Junkin again asked petitioner to take an Intoxilyzer test. Petitioner
refused and he also refused to sign the form DL 26. Trooper Junkin signed the form
DL 26 certifying that he had read the warnings on the form to petitioner, and that
petitioner had refused to sign the form.
As set forth in Vlnansky v. Commonwealth, Department of TransportatIon,
665 A.2d 860 (Pa. Commw. 1995), under Section 1547 of the Vehicle Code, the
Department has the burden of establishing that the motorist: (1) was arrested for
-3-
97-0100 CIVIL TERM
drunken driving by a police officer who had reasonable grounds to believe that the
motorist was operating, or actually controlling or operating the movement of a motor
vehicle, while under the influence of alcohol or a controlled substance; (2) was asked
to submit to a chemical test; (3) refused to so do; and (4) was warned that refusing
the test would result in a license suspension. In Vlnansky, the Commonwealth Court
concluded that when a police officer observed a pickup truck with its engine running,
its brake lights on, and parked in a parking lot with a person seated inside the truck
with his head slumped over the steering wheel, the person was under control of his
vehicle for the purposes of a Section 1547 suspension. In the case sub iudice, we
find from the credible direct and circumstantial evidence that Trooper Junkin had
reasonable grounds to believe that petitioner was in the front seat of his motor vehicle
with the engine running and thus was in control of the vehicle at a time when he was
under the influence of alcohol. The fact that the trooper did not see petitioner move
his car is of no legal consequence.
When Trooper Junkin gave petitioner a Section 1547 warning at the barracks,
he did not include an O'Connell warning. He then gave petitioner his Miranda
warnings after which petitioner said he wanted an attorney, Trooper Junkin then gave
petitioner a thorough and complete Section 1547 warning that included an O'Connell
warning after which petitioner again refused to take a test. On these facts, the
Department's suspension of petitioner's driving privilege for one year must be upheld.
In Commonwealth, Department of Transportation v. Scott, _ Pa. _, 684 A.2d 539
-4-
97-0100 CIVIL TERM
(1996), the Supreme Court of Pennsylvania held that "[0] nee a motorist has been
properly advised of his O'Connell warnings, a refusal to submit to chemical testing
under the terms of the Implied Consent Law will not be excused as unknowing on the
basis of the motorist's subjective belief's regarding the Interplay between the Implied
Consent Law and his Miranda rights."
ORDER OF COURT
AND NOW, this ~ day of May, 1997, the appeal of David Gilbert Sutton
from the suspension of his operating privilege for one year for violating Section
1547(b)(1) of the Vehicle Code, IS DISMISSED.
BYCd~/
Edgar B. Bayley, J
Patrick F. lauer, Jr., Esquire
For Petitioner
I
George H, Kabusk, Esquire
For the Department of Transportation
:saa
.5.
/
INDEX TO WITNESSES
FOR THE APPELLEE
1. corporal Steven Junkin
DIRECT
4
CROSS
14
REDIRECT
44
RECROSS
2
INDEX TO EXHIBITS
FOR THE APPELLEE
1. DL-26 Form
,IDENTIFIED
12
ADMITTED
13
3
1 May 5, 1997, 1:30 p.m.
2 carlisle, Pennsylvania
3
4 (Whereupon, the following proceedings
5 were held:)
6 THE COURT: Ready.
7 MR. KABUSK: Yes, Your Honor. This is the
8 case David Gilbert sutton versus Commonwealth of
9 Pennsylvania, Department of Transportation, 97-100 civil,
10 license suspension appp.al.
11 By official notice dated and mailed December
12 11th, 1996, the Department of Transportation notified the
13 motorist, David Gilbert Sutton, operator's license number
14 23 252 404, that as a result of his violation of section
15 1547 of the Vehicle Code related to chemical testing to
16 determine amount of alcohol or a controlled substance on
17 November 16th, 1996, his operating privilege was being
18 suspended for a period of one year. The Department calls
19 Corporal steven Junkin.
20 Whereupon,
21 CORPORAL STEVEN JUNKIN,
22 having been duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. KABUSK:
25 Q Corporal Junkin, please state your name and
4
1 spell your last name for the record.
2 A My name is steven Junkin, J-u-n-k-i-n.
3 THE COURT: How do you spell steven?
4 THE WITNESS: s-t-e-v-e-n.
5 BY MR. KABUSK:
6 Q Where are you employed?
7 A I'm employed by the Commonwealth of
8 Pennsylvania, Pennsylvania state Police out of Carlisle
9 Barracks.
10 Q During the course of your official duties,
11 have you had occasion to investigate an alleged incident of
12 DUI on or about November 16th, 1996?
13 A Yes, I did.
14 Q Could you please tell the Court about that
15 incident?
16 A Yes. I was traveling northbound on Route 34,
17 and I had just turned on to High street, West High Street in
18 the 100 block. As I made the turn, I observed a black
19 Nissan Pathfinder parked on the right-hand side of the road,
20 and there was an individual outside the driver's door
21 attempting to stick a key in the lock. And as I was driving
22 by, I observed that he was having quite a bit of difficulty
23 in completing that task, scratching the side and just
24 couldn't make contact.
25 As I continued down the road, I was watching
5
1 in my rear-view mirror, and as I went further down the road,
2 I observed that there was a Dicklnson security vehicle in
3 front of me. They activated their overhead lights, and I
4 pulled up alongside of them.
5 We had conversation relative to what I
6 observed and they had observed similar. I then
7 MR. LAUER: Objection as to what they
8 observed to be hearsay, Your Honor.
9 THE COURT: sustained. It is stricken.
10 MR. KABUSK: Your Honor, if I may, hearsay
11 goes to the officer's state of mind, not to prove -- state
12 of mind for the reasonable grounds and not to prove what
13 they said.
14 THE COURT: The objection is sustained.
15 Stricken.
16 BY MR. KABUSK:
17 Q And then what happened?
18 A I made a U-turn in High street, and I came
19 back towards the vehicle. As I started driving back towards
20 it, I observed that the vehicle was running. I could see
21 exhaust coming out of the tailpipe, but I couldn't see the
22 driver. I then went around the block and came in behind the
23 vehicle.
24 As I pulled up along behind the vehicle, I
25 saw the brake lights, like, tapping on and off a few times.
6
1 I got out of the vehicle, and I thought that the driver was
2 maybe slumped behind the wheel. I got out and walked up to
3 the driver's side of the truck, and as I walked up and
4 looked in the passenger compartment, I could see the driver
5 leaned over the center console and it looked like at
6 first I couldn't tell what he was doing, and then I saw that
7 it looked like he was trying to activate a cellular phone.
8 Q Where was the driver seated?
9 A He was seated behind the wheel, driver's side
10 of the vehicle.
11 Q Thank you. Continue, please.
12 A Okay. I watched him for a brief second or
13 two. It appeared to me that he was having difficulty in
14 dialing the phone.
15 MR. LAUER: Objection. That would be
16 speculation, Your Honor.
17 THE COURT: Overruled. The answer stands.
1B continue.
19 THE WITNESS: Thank you, sir. I then knocked
20
21
22
23
24
25 registration and insurance. He did a cursory search of the
on the window, and the driver sat up. I motioned for him to
roll down the window. He did that. And I asked him if
everything was okay. He said, yes. As soon as he spoke to
me, I detected a real strong odor of alcohol.
I then asked him for his driver's license,
7
1 inside of the vehicle. He said he doesn't have it. I asked
2 him to continue to search. He was not able to find it. I
3 asked him his name and he told me that.
4 And while I was speaking to him about his
5 documents, I noticed that his speech was slurred. He was
6 having trouble, you know, making like connecting thoughts,
7 that sort of thing. I asked him to step from the vehicle.
8 BY MR. KABUSK:
9 Q And then what happened?
10 A As I asked him to step from the vehicle, he
11 told me, you don't want to do this. I said, please step to
12 the back of the vehicle. He once again said, you don't want
13 to do this.
14 As he got out of the vehicle, he started to,
15 what do I want to say, sway, trip. He had to be helped to
16 the curb becaus~ his walking ability was not very good. We
17 got to the curb. I then explained -- I explained to him
18 that I was going to ask him to perform two standardized
19 field sobriety tests, the one-leg stand and the
20 walk-and-turn.
21 I explained and demonstrated them, asked him
22 if he had any problems or questions. He stated, no, and
23 that he did understand those. I asked him to perform those.
24 He again resisted verbally saying that, you know, he didn't
25 think he should have to do them. He then did comply. He
8
1 failed both.
2 At that point I placed him under arrest for
3 driving under the influence and observed -- and told him
4 that, that he was being arrested for driving under the
5 influence of alcohol. I then secured his vehicle and placed
6 him in my vehicle.
7 Q Excuse me. And then you what?
8 A I placed him in my vehicle.
9 Q Thank you. And then what happened?
10 A I called into my barracks and said I have an
11 arrest for DUI and told them that I was in route to the
12 barracks. While in route to the barracks I spoke to the
13 driver, who is the gentleman seated next to defense counsel,
14 Mr. sutton, and I asked him to submit to a chemical test of
15 his breath.
16 At that point he said that he would not do
17 that, and I told him that if he failed to comply with that
18 that he would lose his driver's license for a period of one
19 year regardless of the outcome of his DUI charge.
20 He basically told me that, no, that, you
21 know -- he said, we'll see, and continued down the road. I
22 talked to him briefly about that. We then got back to the
23 barracks. I took him back to the intoxilyzer. I then read
24 him the implied consent warning on my intoxication report
25 verbatim and mirandized him.
9
1
Q
Do you have that report with you?
2
A
It's on the table next to you, sir.
3
MR. KABUSK: May I approach the witness, Your
4 Honor?
5
THE COURT: You may.
6 BY MR. KABUSK:
7
Q
Is this a copy of that report?
B
A
Yes, sir, it is.
9
Q
Would you read what you read to the motorist,
10 please?
11
A
certainly.
THE COURT: Go a little slow since she is
12
13 taking it down.
14
THE WITNESS: section 1547 of the Vehicle
15 Code in part reads as follows: Any person who drives,
16 operates, or is in actual physical control of the movement
17 of a motor vehicle in this Commonwealth shall be deemed to
1B have given consent to one or more chemical tests of breath,
19 blood, or urine for the purpose of determining the alcoholic
20 content of blood or the presence of a controlled substance
21 if a police officer has reasonable grounds to believe the
22 person to have been driving, operating, or in actual
23 physical control of the movement of a motor vehicle. There
24 is then a line underneath that says, refusal to submit to
25 chemical testing will result in the suspension of that
10
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1 person's operating privileges for a period of 12 months. I
2 read that to him at 0310 hours.
3 BY MR. KABUSK:
4 Q And then what happened?
5 A He refused. He said that he was not going to
6 submit to the chemical test, and he said that he wanted to
7 talk to an attorney regarding the test. And I told him that
B he did not have the right to an attorney, and that if he was
9 going to submit to the test, he needed to give that consent
10 now. He again refused. I again informally told him that he
11 would be suspended for a period of one year, 12 months. I
12 then got out the DL-26 Form and read that to him verbatim,
13 the warning on there.
14 MR. KABUSK: May I approach the witness, Your
15 Honor?
16 THE COURT: Yes.
17 BY MR. KABUSK:
1B Q Is this a copy of the DL-26 Form that you
19 read the motorist?
20 A Yes, sir, it is.
21 Q Would you read what you read to the motorist.
22 A Okay. Paragraph one, Please be advised that
23 you are now under arrest for driving under the influence of
24 alcohol or a controlled substance pursuant to Section 3731
25 of the Vehicle Code.
11
1 Number two, I am requesting that you submit
2 to a chemical test of breath, which I wrote in. Number
3 three, It is my duty as a police officer to inform you that
4 if you refuse to submit to the chemical test your operating
5 privilege will be suspended for a period of one year.
6 Number four, The constitutional rights you
7 have as a criminal defendant, commonly known as Miranda
8 Rights, including the right to speak with a lawyer and the
9 right to remain silent, apply only to criminal prosecutions
10 and do not apply to the chemical testing procedure under
11 Pennsylvania's Implied Consent Law which is a civil not a
12 criminal proceeding.
13 You have no right to speak to a lawyer or
14 anyone else before taking the chemical test requested by the
15 police officer, nor do you have a right to remain silent
16 when asked by the police officer to submit to chemical
17 test -- to the chemical test.
18 Unless you agree to submit to the test
19 requested by the police officer, your conduct will be deemed
20 to be a refusal and your operating privilege will be
21 suspended for one year.
22 Paragraph C, sub-paragraph C, I'm sorry. The
23 refusal to submit to chemical testing under the Implied
24 Consent Law may be introduced into evidence in a criminal
25 prosecution for driving while under the influence of alcohol
12
1 or a controlled substance.
2
Q
Did you read that to the motorist word for
3 word?
4
A
Yes, sir, I did.
Where did you read this to the motorist?
I read it in the patrol office at PSP
5
Q
6
A
7 Carlisle next to the intoxilyzer, and after I read each of
B those paragraphs, I initialed it.
9
MR. KABUSK: What's been marked as
10 Commonwealth's Exhibit No. 1 is a copy of the DL-26. I move
11 for admission of Commonwealth's Exhibit No.1.
12
MR. LAUER: No objection.
THE COURT: It is admitted.
13
14 BY MR. KABUSK:
15
Q
After you read that form, what happened?
I then asked him, again, after hearing the
16
A
17 warning, if he would submit to a chemical test. He said no
1B and was abusive about it, and I then signed the form and
19 asked him if he would be willing to sign the form where it
20 indicates that it needs his signature and he refused. I
21 then put my signature and date in the block indicating that
22 the motorist refused.
23
MR. KABUSK: Thank you. No further
24 questions.
25
THE COURT: Cross.
13
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1 CROSS EXAMINATION
2 BY MR. LAUER:
3 Q Sir, there was nothing abusive or improper
4 about him not wanting to sign the form if he didn't want to,
5 agree?
6 A I agree.
7 Q Did you tell him that he didn't have to sign
8 the form before asking him to sign the form?
9 A I'm sorry, could you say that again?
10 Q Did you tell him that he did not have to sign
11
12
13
14
15
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17 Q So my point being is you didn't read
18 everything on this document to him?
19 A I read the warning at the top. I did not
20 read all of the signature lines to him, no, sir.
21 Q Now, my point being, sir, is you see this
22 vehicle, you can't say for certain whether or not you
23 observed my client, this individual sitting here, walk
24 across the street and go up and put keys in his car, agree?
25 A I did not see him walking across the street.
the form prior to your asking him to sign the form?
A No.
Q Why not?
A I just asked him if he wanted to sign the
form. He said no and I said okay. I told him that I would
sign where it says that he refused to sign.
14
Q
are looking at
observe him?
A
Q
A
Q
nighttime?
A
Q
A
Q
15
~
1
testimony is that he was leaning against the vehicle?
He wasn't -- he leaned against it for support
2
A
3 and then he went back and was -- that's one of the things
4 that caught my attention.
5
6
7
B
9 left hand.
10
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12 his left hand.
13
He put his hand on the car?
Q
A
Yes, sir.
Q
Which hand did he put on the car?
A
He was facing the door. I believe it was his
Q
Are you sure about that?
A
I'm not sure. I'm saying I believe it was
Q
In fact, sir, when you say support, you don't
14 know if, in fact, he used it for support or if he just put
15 it there, agree?
16
17
A
That's true.
Q
My point is you never saw him swaying from
1B back and forth or forward to backwards when he was by the
19 car, agree?
20
21
A
That's true.
Q
And when you had to observe him was about
22 three seconds as you are driving by, agree?
23
24
Yes, sir, three to five seconds.
A
Q
And you can't testify that he had difficulty
25 actually getting into the car, agree?
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A That's right. I didn't observe him getting
in.
Q And you don't even know how many seconds
approximately it took him to actually get the key in the car
and open it, agree?
A Well, it was until I got down to talk to
Dickinson security.
Q How many seconds was that?
A I don't know, another 20, 20 seconds or so
because I slowed to watch him, 20 to 30 seconds.
Q What was the lighting conditions exactly
right there by the door where he's putting the key in?
A I don't know.
Q So if it's dark, you would agree with me,
it's not unusual for a person to take 15 to 20 seconds if
it's dark and they can't find the right key, agree?
A He had a key in his hand. He was trying to
stick it in the lock.
Q But you don't know if that was because he was
supposedly impaired, agree?
A Well, it appeared to me that he was impaired.
Q In the three seconds you had to observe him,
you already concluded that he had been impaired from
alcohol?
A From the way he was doing it, I had --
17
1 Q Well, you don't know --
2 THE COURT: wait a minute. You asked a
3 question. You have got to let him answer it.
4 MR. LAUER: I will. I apologize.
5 THE COURT: Go ahead. You may answer.
6 BY MR. LAUER:
7 Q You don't --
B THE COURT: Wait a minute. You have got to
9 let him answer. You may finish your answer.
10 THE WITNESS: From the way that he was doing
11 it and the position and the number of times that I saw him
12 trying to stick that in, it appeared to me that he was
13 impaired.
14 BY MR. LAUER:
15 Q From cocaine?
16 A I don't know. I said impaired, sir.
17 Q Did you have any reports at that time that
18 there was supposedly an impaired driver trying to get into a
19 vehicle?
20 A No, sir.
21 Q So you are telling me in the three seconds
22 you had to observe him as you are going by, okay, you had
23 already concluded he looked like he was impaired?
24 A No, sir, that's as I was also driving down
25 the road and watching him.
IB
1 Q NoW, you also had to look ahead of you in
2 your car, agree?
3 A Yes, sir.
4 Q So my point being, when you are driving in a
5 car, you're not looking in the rear-view mirror the entire
6 time, agree?
7 A A majority of it because there was nobody
8 else on the roadway, sir.
9 Q So you are driving the car the majority of
10 the 20 seconds looking in your rear-view mirror?
11 A Yes, sir.
12 Q You felt that was safe?
13 A Yes, sir.
14 Q Okay. Now, how many times specifically did
15 you see him attempt to put the key in the car?
16 A I don't know. I wasn't counting.
17 Q It could have been two for all you know,
18 agree?
19 A I believe it was more than that.
20 Q Well, three?
21 A I would say five.
22 Q Are you sure about that?
23 A Yeah, I would say five.
24 Q So you are telling me under oath you saw him
25 put his hand in the door --
19
22
23
24
25
-.
.-
1
THE COURT: Wait a minute. Don't keep
repeating things. Just ask him questions.
2
3 BY MR. LAUER:
4
Did you see his hand go forward and backward
Q
5 trying to put this key in five times?
6
I saw a movement going like to the lock, and
A
7 like I said, I didn't count. You asked me to estimate and I
B estimated.
9
And your opinion based on that is basically
Q
10 his hand was supposedly on the car, right?
11
At one point, yes.
Well, how long was his hand on the car?
A
12
Q
13
A millisecond. Like I said, I thought it
A
14 appeared to me that he was trying to brace himself.
15
Of which you don't know?
Q
16
Which I said that's what it appeared to me at
A
17 the time.
1B
Q
Okay. Now, of course at that time you didn't
19 know if he had any physical injuries, agree?
20
A That's true.
Q So he could have been a handicapped person
for all you knew, agree?
A He could have been, yes, sir.
Q Now, I take it then you saw him get in the
car in your rear-view mirror?
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A No, sir.
Q Okay. So now is it also true, sir, that in
fact you never -- what he was doing was, in fact, using the
cellular phone, isn't that true?
A I'm sorry, could you say that again?
Q Isn't it true that he, in fact, was using his
cellular phone when you came up and knocked on his door?
A No, sir. He was trying to -- he was trying
to punch numbers on it.
Q And you don't know if, in fact, he was
successful or unsuccessful, agree?
A Well, he was continuing to push numbers. I
would say he was unsuccessful.
Q Well, do you know if it was a long distance
call?
A No, sir.
Q How many numbers did you see him punch in?
A He wasn't punching many, he was missing.
Q How do you know he was missing?
A Because I was watching him.
Q What did you see him do specifically?
A He was leaned over, and he was trying to push
the numbers and was not making contact.
Q Your testimony is that his hand never made
contact with any of those numbers?
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A No, that's not what I'm saying. I'm saying
that -- sir, if I make a telephone number, I hit the
numbers. This gentleman was not hitting the numbers. He
was allover that key pad.
Q In fact, you don't know if he was hitting
numbers allover the key pad?
A He could have been.
Q And actually hitting numbers allover the key
pad.
A
what I said.
But he wasn't hitting the numbers, and that's
Q Now, what specifically, sir -- what was your
specific reason for coming up to the vehicle and basically
approaching him and stopping him at that vehicle?
A Because it appeared to me that when I went by
and when I came around that he was slumped over the wheel,
and I thought he was passed out.
Q You said he appeared slumped over the
vehicle. Well, you don't know if, in fact, he was slumped
over the vehicle, agree?
A Not until I walked up.
Q Correct. And after that you had activated
your lights?
A
Q
I didn't activate my lights, sir.
Now, he didn't have to take a coordination
22
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test if he didn't want to, agree?
A Yes, sir.
o Did you tell him prior to telling him to get
out of the car that he didn't have to take those tests?
A No, sir.
o So there was nothing uncooperative about him
saying I don't want to do it, agree?
A Well, he didn't say -- at first he didn't say
he didn't want to do it. He said you don't want to do this.
o Is it true, sir, that there's nothing
uncooperative though about not doing it?
A It depends on how you do it. He's not
mandated to do it, no, sir.
o Now, you didn't ask him if he had any
problems with his knees or his legs prior to doing that, did
you?
A Yes, I did.
o You asked him if he had problems with his
knees?
A I ask everybody knees, legs, and ankles, if
they have any problems.
o So you asked him if he had a problem with his
knees?
A Yes, I said knees, legs, and ankles.
o Tell me exactly what you said.
23
1 A I said something to the effect that I'm going
2 to be asking __ as I demonstrate the first test, I asked
3 him, sir, do you have any problems with your knees, legs, or
4 ankles.
5 Q You didn't ask him though if he had problems
6 with his back?
7 A No, sir, I did not.
8 Q So, in fact, if you couldn't do that test,
9 you don't knoW if it was from a back injury or a neck
10 injury, agree?
11 A That's true.
12 Q And something like that could affect a
13 person's ability to do that test, agree?
14 A It possiblY could, yes, sir.
15 Q NoW, you understood him when he spoke to you,
16 agree?
17 A with difficulty.
18 Q Well, you don't knoW if he had any speech
19 impediments, agree?
20 A Agree.
21 Q So you don't knoW -- his eyes, now would you
22 you agree with me -- you said about his eyes. It's true his
23 eyes were not bloodshot, agree?
24 A They were bloodshot and they were open just a
25 little bit. They were glassY.
24
1 Q You have no proof that that was from alcohol
2 itself though, agree?
3 A No, sir.
4 Q And you would agree with me a person's eyes
5 can be bloodshot and not be from alcohol, right?
6 A Yes, sir.
7 Q And the odor of alcohol, you would agree with
B me, does not mean that he was impaired, agree?
9 A Yes, sir, I agree.
10 Q Now, what was the first coordination test you
11 asked him to do?
12 A I don't know, sir. I would have to refer to
13 my field notes. It was one of two, walk-and-turn or one-leg
14 stand, I'm not sure which.
15 Q Did you ask him to walk nine steps?
16 A Yes, sir.
17 Q Did you walk nine steps?
1B A No.
19 Q He, in fact, did walk nine steps, isn't that
20 true?
21 A I would have to refer to my field notes.
22 Q Do you recall anything about the coordination
23 test without looking at your notes?
24 A I don't believe he completed the test, and I
25 believe that was of his own -- I believe that he couldn't
25
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complete either of the tests because he quit.
Q What do you recall? What do you recall as
far as how many steps he took on the first nine?
A I would have to look at my field notes.
Q When did you prepare that written report
about what he supposedly did?
A I did that as soon as we got back to the
barracks.
Q Now, I mean, was it a couple hours after the
arrest?
A I believe it was while I was waiting for his
father to pick him up.
Q Now, he didn't stagger when he exited the
vehicle to do the coordination test, isn't that true?
A No, he did stagger.
Q What do you mean by stagger?
A Well, he got out out of the car and
basically almost fell on the street, and he had to lean
against the truck to get back to the curb.
Q Isn't it also true, sir, he told you he had
no intent to drive anywhere, in fact, was calling someone
for help to come and get him, isn't that true?
A That could have been true. I don't recall
that, no.
Q In fact, you never saw him driving the car,
26
!:
ri
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1
right?
,
2
A That's true.
Q And you never actually saw him operate the
vehicle as far as moving it, agree?
A That's true.
Q He never told you that his intent was to
control this vehicle to drive anywhere, in fact, whether or
3
4
5
6
B not he had turned the engine on to, in fact, make the phone
7
9
call, agree?
A He wouldn't talk to me about that.
Q Well, did you ask him that specific question?
A Well, I tried to. But I mirandized him
first, and he said he wouldn't talk to me.
10
11
12
13
And, of course, he had a right not to talk to
14
Q
15 you at that point?
16
A
That's right.
17
Q
But he could have told you what you are
1B telling me is that
19
THE COURT: Wait a minute. He didn't tell
20 him. The man asked him. He said he wouldn't answer. Next
21 question.
22 BY MR. LAUER:
NoW, you had no difficulty handcuffing him,
23
Q
24 agree?
25
A
No.
27
1 Q Now, when he did the walk-and-turn test, he
2 didn't sway from left to right, isn't that true?
3 A I believe he did, but like I said, I would
4 have to refer to my notes.
5 Q Why don't you please look at your notes.
6 THE COURT: You can get your notes. You can
7 refresh your recollection with your notes.
B THE WITNESS: Thank you, sir.
9 THE COURT: You can bring them up with you.
10 What is your first question?
11 BY MR. LAUER:
12 Q sir, you've had an opportunity to look at
13 that now. Did you look at that prior to coming in here to
14 court to testify?
15 A Yes, I did. I reviewed it. I didn't study
16 it.
17 Q So you had reviewed it --
1B THE COURT: If he needs his notes to refresh
19 his recollection, I am going to let him do it.
20 MR. LAUER: Please look at that so that you
21 can study it so that I can ask you some questions.
22 THE COURT: You ask him the questions.
23 MR. LAUER: May I look at the report then
24 since he is using it?
25 THE COURT: No. You ask him the questions
2B
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and then he will answer it. If you want to see the report
afterwards, fine.
BY MR. LAUER:
Q Sir, isn't it true he walked nine steps on
the walk-and-turn, the first nine steps?
A Yes.
Q In fact, sir, there was a white line there
for him to walk on, isn't that true?
A I'm sorry, say that again.
Q Isn't it also true there was a white line
there for him to walk on?
A There was a line, yes.
Q And on the first nine steps he stayed on that
line, isn't that true?
A No, he didn't. He stepped off the line on
the -- he stopped on the second step and stepped off the
line in the first nine steps.
Q Which step did he step off of the line on the
first nine steps?
A That I don't know, sir.
Q In fact, you don't know if it was one time or
two times?
A No, it was one time because I would have
marked two slashes.
Q So he stepped off the line one time. Do you
29
1 recall which foot it was he stepped off the line?
2
3
4
5
6
7 stepping off.
8
A
No, sir.
Q
In fact, it was just a small portion, agree?
It was a small?
A
Q
Portion he stepped off of the line.
I don't measure how far. stepping off is
A
Q
Now, you didn't tell him what a pass or a
9 failure was on that test, agree?
10
11
A
No, sir.
Q
Then you had already concluded in your mind
12 that he was supposedly impaired from alcohol before you even
13 gave him that test, agree?
14
15
A
I believed that he was impaired, yeah.
Q
So my point being is that even if he chose
16 not to take this test you were still going to arrest him?
17
1B continue on.
19 BY MR. LAUER:
20
21 breath test?
22
THE COURT: It does not make any difference.
Q
You were still going to request him to take a
THE COURT: Wait a minute. It does not make
23 any difference. It is what he did, not what he could have
24
done or what he was thinking. It is what he did.
25
30
I
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BY MR. LAUER:
2
~
i
\
p
3 walk-and-turn in the first nine steps, isn't that true?
Q
Sir, now, he never raised his arms on the
4
5
A
No, he did not raise arms.
Q
And that's another thing you would have
6 looked for, agree?
7
8
Yes, sir.
A
Q
You asked him to count out loud when he
9 walked the nine steps, agree?
10
11
12
13
A
Yes.
Q
And he did count out loud?
A
No, he did not.
Now, what, he just didn't follow
Q
14 instructions, agree?
15
Well, he didn't count the steps. He stepped
A
16 off the line, started too soon, and couldn't keep his
17 balance.
18
Q
Well, my point being is that he supposedly
19 didn't follow your instructions to the tee, agree?
20
21
A
Well, he failed.
Well, I'm saying he didn't follow your
Q
22 instructions and that's why you failed him?
23
24 test.
25
A
No, sir. I failed him because he failed the
Q
Okay. How many cues are there for a
31
1 walk-and-turn test?
2 A How many cues?
3 Q Right, are assigned to a person before they
4 are determined to have failed it. They get assessed points,
5 agree?
6 A Yes, sir.
7 Q How many points can be assessed against a
8 person on the walk-and-turn test before it's considered a
9 failure?
10 A I believe it's four points it's considered
11 and we put a nine in.
12 Q Now, you didn't tell him that before he did
13 the test, agree?
14 A No, sir, I did not.
15 Q Did you think that was fair?
16 THE COURT: wait a minute. It doesn't make
17 any difference. He doesn't have to tell him. You know
18 that, Mr. Lauer, come on. There is no jury here. Get me
19 the facts that I need to resolve this.
20 MR. LAUER: Yes, sir.
21 BY MR. LAUER:
22 Q Now, in the instruction part of this test, he
23 wasn't swaying from left to right, agree?
24 A Yes, he was.
25 Q How much was his body moving from left to
32
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right?
A Sir, he was swaying. I don't measure that.
Q So that doesn't have anything to do with this
test?
No, sir. No, it's not part of the grading or
A
the marking.
Q And if you are swaying a little bit on that
test, it might be because you are having to walk heel-to-toe
on a line, a small line?
A Yes, 6ir.
Q Now, which way did you tell him to turn when
he got to the ninth step, to his left or to his right?
A I didn't tell him to turn a certain way. I
counted out the last three steps and then showed him how to
turn.
Q Did you tell him he had to count out loud?
A Yes, sir.
Q So if a person doesn't count out loud, that's
a point that's assessed against him?
A Yes.
Q Now, he didn't raise his arms on the turn,
isn't that true?
A No. I believe you asked me that and I said,
no, he didn't raise his arms.
Q In fact, he didn't stumble on the turn, isn't
33
Q
A
Q
back?
A
Q
ninth step?
A
it is what you testified to?
A I believe he said I'm not doing it or I'm
stopping. I'm not going to quote him. He stopped the test
on his own and indicated he wasn't going to go further.
Q Did you ask him to do a one-leg stand then?
A Yes, I did.
34
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...
Q Which was first, the one-leg or the
walk-and-turn?
A The walk-and-turn was first, the one leg
second.
Q You asked him to stand on one leg for how
long?
A I asked him to -- I didn't tell him how long
I was going to ask him to do it.
Q So you just told him to stand there until
whenever?
A No, I asked him to do it and to start
counting and I would tell him when to stop.
Q So that could be two hours from now?
A Well, in his mind it could be two hours. For
me it was going to be 30 seconds.
Q And you didn't even demonstrate how long you
would stand on your foot, did you?
A I didn't demonstrate it for 30 seconds, but I
demonstrated it.
Q How long did you demonstrate showing him to
stand on one foot?
A I don't know, sir.
Q So exactly, sir, isn't it true he kept his
foot up and he did not raise his arms when he raised his
foot?
35
1
2
3 asked him to?
4
5
6 agree?
7
B
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,
A
He did not raise his arms, that's true.
Isn't it true, sir, he did count like you
Q
A
I believe he did count, yes, sir.
And you understood him when he counted,
Q
A
I don't recall. I would imagine, yes.
Q
Now, he counted one thousand one all the way
9 through, isn't that true?
10
11
12 30, agree?
13
A
That's how I asked him to count, yes.
Q
He counted one thousand one all the way up to
~
A
No, sir, he stopped at eight seconds and
14 stopped the test.
15
16
Q
How do you know it was eight seconds?
Because I was timing him. When he put his
A
17 foot down, I marked it and that's when he stopped.
18
Q
You didn't ask him if he had any problems
19 with his knees or legs before that test, agree?
20
21 had any problems.
22
23
24
A
No, I asked him at the very beginning if he
Q
Dealing with the walk-and-turn?
A
Yes, sir.
Q
You would agree with me that a person might
25 be able to do a walk-and-turn and have a physical prOblem
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which wouldn't affect it, but they may have a physical
problem that would affect them to stand on one leg, agree?
A It's possible.
Q Did you take that into consideration now
knowing that you didn't ask him?
A No, sir.
Q So that doesn't change your opinion one way
or the other?
A No, sir.
Q Then you placed him under arrest?
A Yes, sir.
Q He had no problems walking from the area
where you handcuffed him to put him in the car, agree?
A He had to be assisted to my car.
Q You do that with everyone you handcuff?
A I don't assist them. I guide them but I
don't assist.
Q How did you assist my client?
A Well, I basically helped him in getting there
without falling.
Q Well, how did you do that?
A I grabbed on to his arm and led him over to
the car, leaned him against the car, opened my door and put
him in.
Q And that's what you do with everyone that's
J7
1
handcuffed when you put them in the car?
But I don't lead them over. I guide them
2
3 over.
4
5 guiding?
6
7 BY MR. LAUER:
8
A
Q
What's the difference between leading and
THE COURT: He just told me. Next question.
Q
Now, how long did it take you to get to the
9 barracks where you gave the intoxilyzer?
10
11
12 agree?
13
14 chemical test.
15
16
A
It was, I don't know, five minutes.
He made no statements at all in the vehicle,
Q
A
Just statements regarding the request for a
Q
Which were what? What did he say?
I asked him to submit to it. He said, no. I
A
17 told him what would happen, and he said, we'll see, I've
18 been through this before.
19
Now, his speech wasn't slurred there, you
Q
20 understood him there, agree?
21
22
It was slurred but I could understand him.
A
Q
Now, he had no problems walking from the
23 police car into the area where you were going to give the
24 intoxilyzer, agree?
25
He had to be guided there too, sir.
A
38
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,
1
2 car, agree?
3
4
5
Q
He didn't stumble getting out of the police
A
I didn't give him a chance.
What, you held on to his arm?
Q
A
Well, I opened the door, and as he stood up,
7
6 I held on to him and I took him in the barracks.
10 than you do with anybody else to help them get out, agree?
24
A
8
9
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12
Q
Is that how you help people out of the car?
A
Yes, sir.
Q
So you didn't do anything different there
A
That's true.
Q
Then he walked to the barracks where you give
14
13 this test, agree?
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Q
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A
A
Yes, sir.
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Q
Q
How far did you have to walk with him?
18
A
Twenty feet.
He didn't stagger, agree?
Well, he wasn't walking as well as I was, no.
Isn't it true he didn't stagger?
I believe he did stagger, but I was hOlding
23 you say he might have staggered?
How far did you walk for that 20 feet before
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o
I don't know, sir.
He had no problems walking in the door,
20
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39
21 on to him.
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Q
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agree?
A I don't recall.
Q He had no problems understanding what you
were reading to him back at the barracks, agree?
A Yes, he did.
Q So you don't feel that he had difficulty,
maybe he didn't understand what you were reading to him
about the implied consent.
A No, he kept asking me to read it again. I
read it and then he said -- he kept refusing.
Q Of course, you had read him the Miranda
Warnings at one time telling him that he had a right to a
lawyer, agree?
A Yes, sir.
Q And then right after that you are telling him
about the Implied Consent Law and that he doesn't have a
right to a lawyer there, agree?
A That's right.
Q Then you also tell him if he says anything it
can be used against him, agree?
THE COURT: wait a minute. He read to me
both times what he told him. He read it word for word.
BY MR. LAUER:
Q He appeared to be coherent back at the
barracks, agree?
40
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A No, not one hundred percent lucid, no.
Q What, 95 percent?
A Sir, he was having problems understanding and
doing simple tasks and answering simple --
Q What were the simple tasks he had difficulty
with at the barracks?
A To sit down.
Q What problems did he have with sitting down?
A He kept standing up and I asked him to sit
down.
Q Well, he had no problem standing up though,
agree?
A Well, yeah, he did have problems. That's
why -- I was concerned that he was going to fall and hurt
himself because he was still handcuffed.
Did you document this?
No, sir, I didn't.
Was anyone else present when this supposedly
Q
A
Q
happened?
A
PCO, but no.
Q
He was on the camera being watched by our
So this is on camera with him continually
getting up and down?
A Our cameras not recorded. It's just so that
somebody else in the thing can monitor what's going on.
41
1 MR. LAUER: Can I look at the -- Your Honor,
2 may I see the report he's testified to?
3 THE COURT: Yes.
4 BY MR. LAUER:
5 Q Well, sir, on the walk-and-turn test, you get
6 a point if you don't take the correct number of steps,
7 agree?
8 MR. KABUSK: Your Honor, objection based on
9 relevancy to the scoring of the field sobriety tests.
10 MR. LAUER: Your Honor this goes to
11 THE COURT: sustained. He has told me why he
12 flunked him on both test. Now, that is why he did it.
13 MR. LAUER: I understand, Judge. But what he
14 just testified to isn't documented in the report. In fact,
15 it indicates that he didn't flunk that portion of the test
16 which he just testified he failed.
17 THE COURT: Then the proper thing to do is
18 show him what you are referring to and ask him a question.
19 BY MR. LAUER:
20 Q I'll show you what I'll have marked as
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Defense Exhibit 1 then. On your document, it has here for
what points are assessed against a person, agree?
A Yes.
Q Now, you didn't even fill in the total number
of points that were assessed against him, agree?
42
"
1 A That's right because he stopped the test.
2 Q Now --
3 A Stopped test, see notes.
4 Q Okay. Did you tell him if he stopped the
5 test that that would be a failure?
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7
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12
13 Q Well, I understand you told him you can't
14 stop it, but I'm saying the whole sentence, did you tell him
15 if he stopped it it would be a failure?
16 A No. But, sir, a stoppage
17 Q No.
18 A A stoppage is not -- he stopped the test on
19 his own and would not continue. That ends the test. That's
20 a failure.
21 Q Now, on here, the actual steps taken you
22 didn't even fill out how many steps he actually took, agree?
23 A That's true.
24 Q And on the first nine steps, there's no
25 indication that he did not go heel-to-toe, agree?
A Yes.
Q You did?
A Yes.
Q When did you tell him that?
A When I explained it. I tell people you
cannot stop the test, you cannot raise your arms, and I go
through the whole litany.
43
1 of, I think it is, West High, West High right in front of
2 the old bank -- or the bank there, and it was parked
3 alongside the road facing west.
4 THE COURT: One hundred block next to the old
5 bank?
6 THE WITNESS: Yeah. I believe it's the
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15 THE COURT: The record is closed. All
16 exhibits are admitted. Argument off the record.
17 (Whereupon, argument was held off
18 the record.)
19 THE COURT: I will take it under advisement
20 and have something down shortly. Thank you.
21 (Whereupon, the hearing was concluded
22 at 2:10 p.m.)
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concrete colored building just down the block or so.
THE COURT: And it was parked?
THE WITNESS: Yes, sir.
THE COURT: You may step down, sir. Anything
further?
MR. KABUSK: Nothing further, Your Honor.
THE COURT: Any testimony?
MR. LAUER: No testimony, Your Honor.
45
1
CERTIFICATION
2
3 I hereby certify that the proceedings are
4 contained fully and accurately in the notes taken by me on
5 the above cause and that this is a correct transcript of
6 same.
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}
, \
Pamela R. Sheaffer
Official Court Report
9
----------------------------------
11
12 The foregoing record of the proceedings on the
13 hearing of the within matter is hereby approved and directed
14 to be filed.
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Jlke
vt,
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I e-, 1 r-;
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Edgar B. Bayley, J.
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