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HomeMy WebLinkAbout97-04890 i " . ,I, , - I - , , , i' ~ " , , " , , I , I ...... 0 " ~ " ... - ; j ~ ~ , , I " 3 " ~ " , I' , 0 . t 1 ,I.. ~ " c:J ~ " ....,.'.. " , :- . .:) ,,' ',, " " , ' 1"1 , , " " , ,', , \ I ,I " , , , " , " " '" , 'I, , i'l " ,I , , " I" , 'I , , " , , " ,', , , I' ." I , , , ,', " , " :, " , . , " I ,I ,I ,'P " " " , , , 111 I,' \ '," , " "j ", I' I, .1.. " I, ,,' ,I, '.' ,I I ,.. " "I" " ',' "I '/ II I, I , .'\" I, ," I, , I I, ,'H .1 i' I , 'I, I " ., " " " 'I I, " ;, ' , , , ' . I, I I " " - ~ 'i , ;'l I, , I . .p .' . ;r""'\;~;l~ ' OL.'"I .., ~ CHEMICAL TESTING WAflNINGS AND fllPORT OF REFUSAL TO SUBMII TO CIlEMICAl rr s riNG AS AUTHORIZEO BY 1":("f['11.I'l~ OF Till VFHICL E CODE ., I .',ll.l'l 7'32967 ~ , \I~} - """ au OAT'I"'~' ~'" DAV L 'Ul ~ i . .1;: ~ (Y) ()B OY ~)Mn, OAI"I" NU"III" ,:" , /9 1'1/ , , ....-- SECTION 1547. CHEMICAL TESTING WARNINGS 1.,..... bt """11'01 I~tl' ~\I" 11'" I ~ m. 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Gallo versus Commonwealth of Pennsylvania, 7 Department of Transportation, case number 97-4890 Civil, 8 License Suspension Appeal. 9 By official notice and dated mail August 15, 10 1997, the defendant notified the motorist, James Gregory 11 Gallo, operator's number 19191217, that as a result of his 12 violation of section 1547 of the Vehicle Code relating to 13 chemical test refusal on 8/3/97, his driver's privilege was 14 being suspended for a period of one year. (Whereupon, Commonwealth Exhibit No. 1 was marked for identification.) MR. KABUSK: The Department is ready to THE COURT: MR. OYELAR: THE COURT: MR. KABUSK: 24 Troy Wiser to the stand. 25 15 16 17 18 19 proceed. 20 21 22 23 Ready, counselor? Yes, I am, Your Honor. Okay. The department calls Officer Whereupon, 3 1 2 3 4 BY MR. KABUSK: 5 Q Officer Wiser, please state your name, and 6 spell your last name for the record? 7 A Officer Troy L. Wiser, W-i-s-e-r. 8 Q Where are you employed? 9 A Mount Holly Springs Borough Police 10 Department. 11 Q Okay. During the course of your official 12 duties, have you had an occasion to investigate an alleged 13 incident of DUI on or about 8/3 of '97? 14 A Yes, I did. 15 Q Could you tell the Court about that incident? 16 A I was on duty in full uniform in a marked 17 patrol vehicle. It was approximately 03:12 hours in the 18 morning on August 3, 1997. I observed a vehicle, a red 19 pickup truck in color. It was traveling southbound on North 20 Baltimore Avenue. The vehIcle nearly struck me. I had to 21 take aggressive action. Moved my patrol vehicle to the 22 right of the road to avoid a collision. I turned around and 23 began to pursue the vehicle. At which time the vehicle sped 24 up. 25 OFFICER TROY L. WISER having been duly sworn, testified as follows: DIRECT EXAMINATION I observed it cross the double yellow line, 4 1 nearly strike a parked car, and it crossed the double yellow 2 line again. The vehicle then made a right hand turn on to 3 West pine street. At which time it attempted to leave the 4 borough at high rate of speed, straddling the double yellow 5 line on West pine street. The vehicle was traveling 1n 6 excess of SO mile an hour in a properly posted 25 mile an 7 hour zone. 8 I finally did get the vehicle to stop. After 9 pursuing him with my red lights and siren on for 10 approximately, probably up to a mile. At which time I 11 approached the driver. 12 As soon as I observed the driver, he appeared 13 to be very intoxicated. There was a distinct and strong 14 odor of an intoxicating beverage emitting from the vehicle. 15 He was asked for his driver's license, registration and 16 proof of insurance. I also detected or I observed bloodshot 17 and glassy eyes and slurred speech. 18 The sUbject was Jerry Gregory Gallo, who is 19 seated in the courtroom today, back there beside counsel. 20 He had trouble retrieving the driver's license, which was in 21 the front of his wallet. After which he had retrieved the 22 documents I had asked for, I asked him to step from the 23 vehicle and asked him to perform a standard field SObriety 24 test. After that was complete, Mr. Gallo was placed under 25 arrest for OUI and transported to Carlisle Hospital for 5 1 blood. 2 Q Officer Wiser, did he complete the field 3 sobriety tests successfully? 4 A As I recall, yes. 5 Q And then what happened? 6 A As a result of the conclusion of the standard 7 field sobriety test, he was placed under arrest for driving 8 under the influence of an alcoholic beverage. 9 Q How was he placed under arrest? 10 A He was physically handcuffed behind the back, 11 at which time a small altercation became an issue on the 12 scene. 13 Q What was that? 14 A He began to refuse when I placed him under 15 arrest for OUI. 16 Q Vou told him he was under arrest? 17 AVes, I did. 18 Q Okay. Please continue. 19 A He lias transported to Carlisle Borough, which 20 is where the Carlisle Hospital is. At which time I had 21 called ahead, due to the incident that occurred on the 22 scene, and asked for security to be at the hospital, 23 expecting another incident at the hospital. 24 On the way through the doors, Officer Cohick 25 was on his way out., from Car lis le Borough. I asked him to 6 1 come back in to assist. At which time the chemical test 2 warnings and report of refusal was read to Mr. Gallo. 3 THE COURT: Well, why don't you just go 4 through it step by step, sir? 5 MR. KABUSK: May I approach the witness? 6 THE COURT: Don't take any shortcuts here. 7 MR. KABUSK: May I approach the witness? 8 THE COURT: Yes. 9 BY MR. KABUSK: 10 Q Officer Wiser, I am going to on show you a DL 11 26 form. Is that your signature on that form? 12 A Yes it is. 13 THE COURT: Is this Commonwealth 1? 14 MR. KABUSK: That is a copy of what has been 15 marked Commonwealth Exhibit Number 1. 16 BY MR. KABUSK: 17 Q Did you read that form to the motorist? 18 A Yes. 19 THE COURT: Let's just go through it step by 20 step. You walk in the hospital door, you went somewhere. 21 THE WITNESS: Okay. We proceeded back to the 22 laboratory which is where the blood is drawn. At which time 23 Officer COhick went along back with me. And the lab tech 24 was in the room. Officer Cohick was there and there was two 25 security guards. At which time I pulled out the form and I 7 1 read the chemical test warnings to Mr. Gallo. 2 BY MR. KABUSK: 3 Q Would you read aloud what you read to Mr. 4 Gallo? 5 A Showing him the form while he was standing 6 there, I read as he followed along: Please be advised that 7 you are now under arrest for driving under the influencu of 8 alcohol or a controlled substance pursuant to section 3731 9 of the Vehicle Code. I am requesting that you submit to 10 chemical test of blood. And then I even circled blood over 11 where it says breath, blood or urine. And I indicated to 12 him that it was the officer's request as to the type of test 13 that was given. In this case, I was requesting blood. 14 It is my duty as a police officer to inform 15 you that if you refuse to submit to the chemical test, your 16 operating privileges will be suspended for a period of one 17 year. The constitutional rights you have as a criminal 18 defendant commonly known as the Miranda rights, including 19 the right to speak with a lawyer and the right to remain 20 silent, apply only to criminal procedures and do not apply 21 to chemical testing procedures, under Pennsylvania Implied 22 Consent Law, which is a civil, not a criminal proceeding. 23 You have no right to speak to 11 lawyer or 24 anyone else before taking the chemical test requested by the 25 police officer, nor do you have the right to remain silent 8 1 when asked by a police officer to submit to the chemical 2 test. Unless you agree to submit to the chemical test 3 requested by the police officer, your conduct will be deemed 4 as a refusal and your operating privileges will be suapended 5 for a period of one year. 6 Your refusal to submit to the chemical 7 testing under the Implied Consent Law may be introduced into 8 evidence in a criminal procedure for driving while under the 9 influence of alcohol or a controlled substance. 10 Q You stated that you read that to the motorist 11 word for word? 12 A Yes, I'did. 13 MR. KABUSK: I move for the admission of what 14 has been marked Commonwealth Exhibit Number 1. 15 MR. OYELAR: I have no objection, Your. Honor. 16 THE COURT: That is admitted. 17 BY MR. KABUSK: 18 Q Then what happened, Officer? 19 A I then asked Mr. Gallo if he would so sign, 20 and he refused to sign stating he didn't think his attorney 21 would appreciate that. So I signed where it says motorist 22 refused to sign. 23 Q And then what happened? 24 A Then even after he had refused, I had Officer 25 Cohick I stepped out of the room and gave Officer Cohick L 9 1 a chance to explain to Mr. Gallo the pluses and the 2 negatives to try to convince Mr. Gallo to give a blood test. 3 Mr. Gallo still refused to give blood. 4 Q How did he refuse to submit to the test? 5 A He made several statements that night from 6 the time he was placed under arrest in the police car. And 7 he stated, as I recall, without looking at my police report, S you are not getting none of my F-in blood. 9 Q Now, after you read the DL 26 to him, did he 10 agree to submit to a chemical test? 11 A No, he still refused, stating that we weren't 12 getting none of his F-in blood. 13 Q He said that to you after you read the form 14 to him and requested he submit to a test? 15 A That is correct. 16 Q And then did you take that comment from the 17 motorist to be his refusal? He said there was no way we were getting any 18 A 19 blood. 20 21 questions. 22 23 24 BY MR. OYELAR: 25 Q MR. KABUSK: Thank YOII. I have no further MR. OYELAR: Your Honor, if I may cross? CROSS-EXAMINATION Officer Wiser, my name is Attorney Michael 10 1 Oleyar. I ropresent the licensee, James Gallo. I havo a 2 tew questions tor you. 3 When you asked Mr. Gallo to take the blood 4 test, at that time did he indicate that he would be willing 5 to take another form of chemical test, breath or urine test? 6 A No, he did not. 7 Q And you are positive that you read this ex~ct 8 statement that you read here in court to him at that time? 9 You pulled the statement out and you actually read from the 10 statement to him? 11 A Yes, sir, I did. There was several people 12 standing there. 13 Q If he would have asked for a breath test or a 14 chemical test or a urine test, would you have obliged his 15 request? 16 THE COURT: Well, if he didn't ask, what is 17 the point of this question, sir? 18 MR. OYELAR: Your Honor, it goes to my 19 argument which I will b~ able to tie up when this hearing is 20 over. Begging your permission, Your Honor. 21 THE COURT: I still don't understand. Are 22 you going to offer testimony that he asked for such a thing? 23 MR. OYELAR: Yes, I am, Your Honor. 24 THE COURT: Well, then put it straight to 25 him. 11 1 MR. OYELAR: I think I already asked that 2 question and he denied it, Your Honor. I just wanted to 3 know what the officer's opinion was, whether he would 4 have 5 THE COURT: Go ahead. Go ahead. 6 BY MR. OYELAR: 7 Q Officer, would you have honored such a 8 request if he asked for a breath or a urine test? 9 A I very well could have considered it if there 10 would have been a breathalyzer available prior to going to 11 the Carlisle Hospital. However, the Booking Center was 12 closed at 03:12 hour.s. Mr. Gallo made no reference when I 13 told him he was going to the hospital for blood other than 14 you aren't getting none of my blood. And once we were at 15 the hospital, no, I would not have changed the request. 16 MR. OYELAR: That is all I have, Your Honor. 17 THE COURT: Anything else? 18 MR. KABUSK: Nothing further, Your Honor. 19 THE COURT: step down. 20 MR. KABUSK: Nothing further. 21 THE COURT: Are you resting? 22 MR. KABUSK: Yes, Your Honor, resting. 23 THE COURT: Testimony? 24 MR. OYELAR: Yes, Your Honor, I would like to 25 call the licensee, James Gallo to the stand, if I could. 12 1 2 3 -I 5 BY MR. OLEYAR: 6 Q Mr. Gallo, on the night of August 3, 1997, 7 when you were in the laboratory at Carlisle Hospital, did 8 Officer Wiser pullout this DL 26 form that was marked as 9 Commonwealth Exhibit Number 1 and read you the warning that 10 he just read in court today? 11 A No. 12 Q When he asked you to take a blood test, did 13 that occur at all? Did he ask you to take a blood test 14 during that night in the hospital? 15 A Yeah. 16 Q And did you decline to take the blood test? 17 A Yes, I did. 18 Q Did you then ask him to take another type of 19 chemical test, a breath or a urine test? 20 A I requested a breath test, breathalyzer, or 21 anything else other than blood test. 22 MR. OYELAR: That is all I have, Your Honor. 23 CROSS-EXAMINATION 24 BY MR. ~ABUS~: 25 Q Whereupon, JAMES G. GALLO having been duly sworn, testified as follows: DIRECT EXAMINATION Mr. Gallo, why did you want any other te.t 13 1 beside a blood test? 2 A Cause I am deathly afraid of needles. Blood 3 pressure goes up, it gets hard to breathe, and I will pess 4 out. 5 Q 6 that evening? 7 A 8 Q Do you recall being arr~ated by Officer Wiser Yes. Do you recall him requesting you to submit to 9 a chemical test? 10 A Pardon me? 11 Q Do you recall him requesting you to submit to 12 a blood test? 13 A Yes. 14 Q Do you recall him warning you of the 15 consequences for refusing to submit to the chemical test? 16 A No. 17 Q Do you recall Officer Wiser telling you that 18 you would lose your license for a year if you refused to 19 submit? 20 21 22 test? 23 24 25 A Q A Q A No. And did you refuse to submit to the blood Yes, I refused. And had you been drinking that evening? No. 14 1 MR. KABUSI<: No further questions. 2 THE COURT: Anything else? 3 MR. OYELAR: No further questions, Your 4 Honor. 5 THE COURT: step down. 6 THE COURT: Anything else? 7 MR. OYELAR: Yes, Your Honor, I would like to 8 make a closing statement, if I could. 9 10 11 12 13 14 argument. 15 16 17 THE COURT: Do you have any other testimony? MR. OYELAR: No, Your Honor. THE COURT: Is there any rebuttal? MR. KABUSK: NO, Your Honor. THE COURT: Close the record for the (Argument held off the record.) (Whereupon, the following Order was entered.) AND NOW, December 5, 1997, 10:09 a.m., after 18 hearing and consideration of the testimony presented, we 19 dismiss the defendant's appeal and sustain the suspension 20 directed by PennDOT. 21 We find the officer did have probable cause 22 to arrest the defendant and to request that the defendant 23 submit to a blood alcohol test. We find that the defendant 24 clearly refused to submit to such a test. 25 By the court, 15 1 Is/ Georae E. Hoffer. J. 2 THE COURT: Anything else, counselor? 3 MR. KABUSK: Nothing further, 'iour Honor. 4 THE COURT: Anything else? 5 MR. O'iELAR: Unless I could make an oral 6 motion for 1\ supersedeas, 'iour Honor. 7 THE COURT: What? 8 MR. O'iELAR: An oral motion for a supersedeas 9 based on your order you just -- THE COURT: 'iou want to take an appeal? MR. O'iELAR: 'ies, 'iour Honor. THE COURT: Oh, well, go ahead and file your 10 11 12 13 appeal. 14 15 16 By the Court. 17 18 19 20 2l 22 23 24 25 MR. O'iELAR: THE COURT: Okay. That is the end of that, Marie. (Whereupon, the proceeding was concluded at 10: 10 a.m.) 16 (,r. ,:1 , ~.,; :.":).'} i: r:; ,','r.. :~'( ga..ri"(lj r,; II:I,Q Ct}h.~, .'.t; 1~;..:I'li ..1, ""IY ,,, "Ii,', ,:,"\ '1 'I ,I ~ If) ',. ,I ..... .J (-: t. c':J ~.i lL,1' , . ,1' , 1 ')'. (,) '-. c: u', : .i f,: I . , l ~ .. , .. - , . L'. t'.~' U 0 Q' " I, ,,, I, I'