HomeMy WebLinkAbout97-06273
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CEIl'I' tl' I CI\TE Mill 'l'IlI\NSM I 'I"I'^,. 01' llECOIlD
IINln:1l
I'ENNS Y.l' v ~~_I1Lli!!.~: _ ()):'._I\ I~I'; t,I,I\:r!~_ t.~llt.~"l?!! '!!L},~~~JJ_~J
1'0 L1H? Pnllhonotary of thu I\ppull..te Courl to which L110
within matter has heun appoillud:
CCJ'-1M(lIIWEI\L'11I CO.!IlT OF PI\
Tllf: UNIJEIISIGNI-;lJ, Prothonotary or the Court of Common Pie",;
of ClJ'lDERLJlNP ___ County, the said court being ,1 court of record.
do hereby certify that annexed hereto is a true and corract copy
of the whole and anUre record, including an opinion of the court
as raquirod by PI\ 11.1\.1'. 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings, if any, and tho
docket entries in the following matter:
CASE" 97-6273
C~SE " 574 CD 1998
DI\LE STANLEY BI\RDER
VS
PENNSYLVANII\ CXM-1ONWEI\L'llI OF 1'1\ PEPT 01-' Tlll\NSI'ORTI\TION
DflIVEI1S [.ICEN~ ING
~
Bl~U ~
., e,.J"'\
".' .,'
,to,
--1
~
The documen t ,) compr i,s i n<] the reco ",I have been numj)'Qred
from No, 1 to No. _...._~,n.___, <1l1d attached hereto o1S':Ex'l\l~i~ j,s a
list of the document,; correspondingly numbered ilnd idel'ltif~d willI
reasonabLO dcfirlilencss, incllJding wittl rcs()cct tc cdcll dOClln\~nt,
lhe numbllr or pagC1s comprising the document.
The date on which Lhe record hDs bee" transmitted to the
appellate court is I\PRIL 13, 1998
(Seal of Court)
--;:jU&yi~~r~____
Prothonot.ary {/
An additional copy of thin certificat~ is enclosed Pleann
sign and date copy, thereby ac:knowlcdqing rC1ceipt of this record.
ImCOIlD IlEClnVI-:l):
Datil'
-~-~~._.-... ...---_..__...._..___ _____u
(signature & titlo)
,
CI.;II'I' 11-'1 CN('I'; IIND 'l'IlIlNSM 1 '(''I'M. OF IIECOIlll
lJ N lll-:l!
I'lmNS......l-'_y-^-!:!-',II_~l!.!.-.I~ OF III'Pfo:l.I.II'I'fo: t~IIOClm.!!!!!'~_}2~U J':J.
'1'0 the I','othonotary 01 the IIppollilte Court lo which the
within matter tws been appeilled:
CCl>1MONWEII[o'l1l <-UmT OF I'll
TilE LJNIJEIl~;rGNI';IJ, Prothonotary of the Courl of Common I'leilll
of CU'1BERl:!\ND______ County. the silid coun being a coun of record,
do hereby cerllfy lhat ilnnexed hereto is a truo and correct copy
of the whole and enUre recol'd, including an opinion of the coun
as required by I'll 11.11.1'. 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings, if any, and the
docket entries in the following matter:
CIISE ~ 97-6273
C~SE ~ 574 CD 1998
DIILfo: STIINLEY BIIRBER
VB
PENNSy[.vANIII CCMMONWl?.I\L'lll or' I'll Dfo:pr OF 'I'RIINSPORTII1'ION EJUREIIU OF
DRIVERS LICENSING
The documents comlH'lsing the recorr' have been numbered
from No, 1 to No. 9n ,ilnd attached heralo ilS f.xhibit II Is a
list of the dOCllfll<!nl:!i corr:espondingly numbered and identif led willi
re,lsonab~e definiteneBs, Including with respect to each documl'nt.
lhe number ol pages comprising the document.
The date on which the recard has been transmitted to the
appellate court is IIPRIL 13. 1998
(Seal of Court)
IIn additional copy of this certificate in enclosed Pleastl
sign and date copy, thereby acknowledging receipt of this record.
RECOIlD Rfo:CEXVfo:D:
Date:
------.....--- - .-....-.-------0-----...--- __._ ----- -.--
(nlgnature & title)
PlIrn H
002-009 -
001
Ota
011-050
051-053
054 -055
056
057-058
059-080
087-088
089-09~
095-098
Anhlng Ihe Reco,," IlIhl Proceeding' enrolled in Ihe COLIn of ('ommon Plens in llnd for Ihe
cOllnly Ill' CllillEilllll'IL-
97-0673 CIVIL
hI No, .5.Z.LC~
_ In Ihe C"mmonwellllh or Pennsylvllnill
Term, 19 is conlllined Ihe following:
COI'Y 01' _..,
lU!l).E.lUWJ(:p
_ DOCKET ENTlW
IW,E S'l'ANl~EY BI\RDER
EH 97-0673 CIVIL
\IS
EH 574 CD 98
Pf}H;YLVIINIA <XJoKJIlWF..AI.11I m' Ph - DE!"l' ell-' 'l'lW'l>roR'l'l\'l'ICl'l lJURFJIlJ OF DRIVER
I.ICH<SEItCo RIVERF~ OFFICF: CFNI'ER
11-13-97 APPEAL ma.l SUSPENSION 01-' DRIVERS LICENSE
11-18-97 ORDER OF cawl' - DII'l'ED 11-18-97- IN RE APPEAL FRCM SUSPENSION OF
OPERl\'l'OR'S PRIVILEGE - IIEAIUNG 1-26-98 9:30 11M CH 5 - BY KEVIN A
IIESS .J !'DH EIJ.'/AHD E GUILOO ,)
COPIES Ml\ILED 11- 19-97
1-27-98 ORDEB 01" COURT - DII'I'Efl 1-26-98 - IN 1m AppFJ\L OF' LICENSE
SUSPENSION DISMISSEfl CCl>1MaMFJ\L11I flF.pAR'll1ENT OF
TMNSPOR'I'ATION'S AerrON IN SUSp8NDING flEmNDANT'S LICENSE IS
AFFn~ED - BY EIJ.'/AIUJ E (;UIIX) .J
COPIES Ml\ILEn 1-27-98
TRANSCRlfYl' FILm
NOl'ICE 01-' AppF.IIL TO CCMMONWEJ\L111 caJBT BY .18ANNE n WIG[JELS ESQ,
OHDEH fOR TRANSCRlfYl' - DATEfl 2-21-98 - CeXJllT REPOR'l'EB IS HEREBY
ORDEBED '1'0 pHODUCE cmrrFY ANfl FILE 'llIE TMNSCHlfYl' - BY EIJ.'/ARD E
GUICO .1
ORDEH OF CCXJR'1' DATED 2-23-98 - APPELLANT IS nIl<ECTED 'PO FDR'IlIWITII
FILE OF' HECORD AND SEINE UPON 111E UNDEHSIGNED A CONCISE STATFMEN'1'
OJ.' TIlE Ml\TrERS CG1PIJ\INED ON APPF.P.L - BY ELJoo/ARD E GUIIX) ,J -
PAHTIES NOI'IFIED BY '/lIE caJRT
CCMMONWEAL11I COUR'l' OF' PA NOl'ICE 01-' APPEAL IXJCKJ..'1'ING ff 574 CD 1998
APPELIJ\NT'S PETITION JoOR STAY PENDING APPEAL punSUAm' 01' RULES OF
APPELLATE PI1<XEIXJHE L 732 OF 'llIE PENNSYLVANIA BULES OF APPELLATE
)3-20-98 MR!'lClRI'itJllIl'1 OPINION /\Nfl ORflr::B (W COUB'!' - DATED ]-18-98 - IN RE
['ETITION fOB STAY PENDING LICENSE SUSPENSION APPEAL - DDlIED - BY
ElJ,olAHfl E GUIlXl .J
COPIES Ml\ILED ]-20-98
4-03-98 IN BE OPINION PUHSUNfl' 'ID HUJ.!'; 1925 - IlII'l'EDI-25-98 - BY EIJ.'/ARD E
GUIro ,I
COPIES Ml\ILED 4-6-98
MISC.
\
('lllllllhlllwellllh IIll'elln'ylvllllill
("IUIlIY III ('lIlUherllllld
} ss:
I. _CUlt'l'HLlt---l..ONG-______. I'rnlhllnlllllry
ulthe ('ullrl III ('lImmllll I'lell' III IInd IlIr ,aid
('11111111'. du herehy certify Ihlll Ihe roreguillg i, a
filII. Irlle II lid ellnecl ellpy IIflhe whllle reeurd lIflhe
l'1I!'i1' therein ~latl..'d. wherein
III TFSTIMONY WIfFIU:OF, I hllw
I HIli, .
_D^IJr:;_tiTllliLE'LB^R[~EH .__,______
I'llIimill, IIl1d __
~~::EILnEPT 01-' THAN
fLOf'...DlUVEILLlCENS ING-
I>Cfl.'IHluI11 .0____. liS the surne rCllluil1\ Ill' r....cord
hefllre Ihe ,aid ('lIl1l'lal Nil, ffil____ IIf
___._Cl'/~L.___._ Term, A. 1>, 19.2.7__,
hereunto sl'l Ill\' hand and afrl.,,"'d the seal of snit! Court
day_:~ )?!!:__ 1>, 1'I2!2._,
~._L rlllhuJllllat\
I. ,__..iiL':QIlQE E JIO!:1.'ER ____.u....._____._'u Pre,idelll ,llIdge III the ____...,..__,___
,hHIIl.:ial District, Clll11pOsl'd of the ('Ollllty Ill' ('t1lllh.:rlalld. do n~r1lry that ~____'_'._____4n__~'___
- ------GUR+IS-R--[,CX\JG ._____.'_._.n __.___, hy WhlHll the annexed H'cord. ccrtifkiltc nOli
lIt1l'\lalioll \\.'ere madt.' and ~i\...n. Hnd who. in his 0\\.11 propr:r handwrllinl!. thl'rcl1llto suhscrihcd his !lallle
and afn.\cd the !'.l:ul uf the ('ourt of ("OlllllhHl PII.~as of ~lIid COllllty, \\'a~, at thl.' time llfso doing, and 1l0W i~
I'",'hono'ary in and for '0,,1 County of _nn.'..___n__CllMfl~Jl!^!'!IL......______..__,_..____ in
the COllllHunwealth of Penll~ylvania, duly I.: 0 III III is!\ionl.'d and qualified tll all of whose acts as such full faith
Blld ,,',cdil arc ilnd ought 10 hl.' given a~ \\'1.'11 ill ('ourts of iudkature a~ ehcwherc. and thut Ih,,' said record,
1.'l'r1ilkatc ilnd attcstation arl.' in due form of law and Ill. Ih' 1 p,c:r nfi'ker,
('tllllllWllwcalth of Pennsylvania
('ounty of ('u111hcrlanll
}"
Ilr~"ldcnl ,Iud!!\.'
I. _._u_..cur~r.IS--R--I,(X\JG.----.._____......~..n___. ProthIIlHllar~' of the Court of Common Picas in
alld fUI Ihe said Counly. do certify Ihatlhe 1I0norahlc "..(,IOI,gJ::. E HOFFER
hy wlwlH the foregoing a1lcsllllion was l11i\(II:, ilnd who ha'i tIH:rl'1I1l10 suhscrihed his name, Wlls,nt the lime
olmaking thereof. IIncl \Iill i'i Pre~ident .Il1d~e or fhc ('ollrt 01'( 'ollllllon Pleas, Orphan' ('ourt and Court of
<)lIarlc:r Sc.'''i',iiol1s of the PCiH:C ill and for ,uld ('Ollllty, duly ('olllllli"ioIlCd and qualilied: to nil whose acts
as '1I1.:h flllllailh ilnd l'rl'dit arl' and Oll~IH to hc givcll, ii' \\0...11111 Courts llr jlldicu(urc as clscwh~rc,
I~ Irs IIMONY WIII'IU:OI'. I h"ve "erelllllll
,el Ill\' hand ill1\1 alli:H'd Ille ,cal 01 ,aid ('ollrt thisÇl~~"'y Ilr^Plldl'l~B,~
Illlh"lhll,'I\
A.
n:II'I'lI-'rC^,I'E /\ND TIlANSM I 'I"I'M. O~' 1l1':COIllJ
lJNllI-:tl
PI.:!:ms.Yhl{ AN_I.~lllJ I, E _Qt~_ A I.'..PB 1.I,A 1'E.J'IiQ~ EQYll_~_.1_2.:! I, _ .L<:J.
- ,.
Te) the P,:othonolill'Y of.' ttw Appellilte Court to whlch the
wlthin malter hilu heen appoilled:
CCMMmWE/\L'1l1 COURT OF 1'/\
TilE UNIlEIlSIGNED, Prothonotary of the Court of Common Plea,;
of ClJo1BEIlLIIND_,_____, County, the said court being a court of record,
do hereby certlfy that annexed hereto is a true and correct copy
of the whole i1ncl enlire record, including an opinion of the court
,as I:'equired by ,,/\ [1./\.1'. 1925, the origlnal papers and exhibits,
if any on file, the transcrlpt of the proceedings, if any, and the
docket entries in the following matter:
C/\SE U 97-6273
CIISE II 574 CD 1990
D/\LE STI\NLEY B/\RBEIl
VS
PENNSyr,VIINIA CCl>1MONWFJ\L'IlI OF 1'/\ DE?f OF TI<IINSPOR'l'/\'rION BURE/\U OF
DRIVERS LICENSING
The documents comprising the record have been numbered
from No, 1 to No, 90 . i1nrl attached hereto as Exhibit /\ is a
list of the documents correupondingly numbered and identified with
reasonable definiteness, including with ,-espect to each documllnt,
the number of page,; comprising the document,
The date on which the record hilS been trilnsmitted to the
appellate cnur.t i[l ., /\P[UL 13, 1990
(Seal of Court)
An additional copy of this certificate is enclosed Pleasn
sign and date copy, thereby acknowledging receipt of lhis record,
rmCOflD RECEIVr-:O:
Date:
----,.---..-----..---.__.__~._~, ,._._~. _0
._--~..._,.._,.
(signature & title)
RIJ: t BARBER v. DEPARTMENT OF TRANSPORTATION
Lower Court No: 97-6273Civ
Appealed Date: January 26, 1998
County: Cumberland
Commonwealth
Docket II: 0574 C. 0, 1998
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CERTIFICATE OF CONTENTS OF REMANDED RECORD
AND NOTICE OF REMAND UNDER
PENNSYLVANIA RUl,ES OF APPELLATE PROCEDURE 2571 AND 2572 (e)
THE UNDERSIGNED, Prothonotary or Deputy Prothonotary of the
Commonwealth Court of Pennsylvania, the said court being a court of
record, does hereby certify that annexed to the original hereof is the
whole and entire record as remanded from the Commonwealth Court, in
compliance with Pennsylv,~ia Rules of Appellate Procedure 2571 and
2572 (e) .
An additional copy of this certificate is enclosed with the
original hereof and the clerk or prothonotary of the lower court or the
head, chairman, deputy or secretary of the government unit is hereby
directed to acknowledge receipt of the remanded record by executing
such copy at the place indicated and by ret~~~~:~Y.
Deputy Prothonotary/Cnret Clerk
PLEASE SIGN AND RETURN IMMEDIATELY TO: OFFICE OF THE CHIEF CLERK
COMMONWEALTH COURT OF PENNSvrNANIA
P,O. BOX 11730, SOUTH OFFICE BUILDING
HARRISBURG, PA 17108
(717)783-3215 OR 783-7058
(Seal of Court)
Record Received:
(signature)
Reason for
Remand
Date record
Remanded
November 24, 1998
i\ffirmed
M1C
"
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DALE STANLEY BARBER,
Appellant
v.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING
No. 574 C,D. 1998
Submitted: August 21,1998
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE DORIS A. SMITH, Judge
HONORABLE CHARLES p, MIRARCHI, JR., Senior Judge
OPINION NOT_REPORllill
MEMORANDUM OPINION
BY PRESIDENT JUDGE COLINS
FILED: October I, 1998
Dale Stanley Barber (Barber) appeals from the January 26, 1998 order
of the Court of Common Pleas of Cumberland County (Common Pleas) that
dismissed his appeal of the one-year suspension of his operating privilege imposed
by the Department of Transportation (Department) pursuant to 75 Pa. C,S,
S 1547(b) for refusal to submit to chemical testing,
Common Pleas concluded that the arresting police officer had
reasonable grounds to believe that Barber was driving under the influence of
alcohol. Common Pleas found that Barber had (I) driven at a high rate of speed,
(2) driven through two red lights, (3) crossed over the center line of the roadway,
(4) slurred his speech, and (5) admitted to drinking a couple of beers. Common
.
Pleas also found that thc officers dctcctcd the odor of alcohol on Barbcr's breath
and that Barbcr "fumblcd through his wallct looking for his drivers licenser and]
passed it several times bcfore finally producing it" (Common Pleas opinion, p. 2;
Finding of Fact No.7,) According to Common Picas there were "numerous ".
indications of intoxication established in the record, (and] it is abundantly clear
that the Officer had reasonable grounds to believe that Appellant was driving while
intoxicated." (Common Pleas opinion, p, 5.)
Barber appeals to this Court, arguing that Common Pleas erred in
concluding that there were reasonable grounds to believe that he drove while
intoxicated. "Whether reasonable grounds exist is a question of law reviewable by
this court on a case by case basis." Gasper v, Departme/lt of Tmnsportation,
Bureau of Drivel' Liceming, 674 A,2d 1200, 1202 (Pa. Cmwlth,), petitioll for
allowance of appeal denied, 546 Pa. 666, 685 A,2d 546 (1996),
The test [for reasonable grounds] is not very demanding,
We note initially that, for 'reasonable grounds' to exist,
the police officer obviously need not be correct in his
belief that the motorist had been driving while
intoxicated. We are dealing here with the authority to
request a person to submit to a chemical test and not with
the admission into evidence of the result of such a test.
The only valid inquiry on this issue at the de novo
hearing is whether, viewing the facts and circumstances
as they appeared at the time, a reasonable person in the
position of the police officer ~ concluded that
the motorist was operating the vehicle and under the
influence of intoxicating liquor,
Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 363 A,2d
870,872 (Pa. Cmwith, 1976) (footnotes omitted) (emphasis added),
Barber asserts that his case is controlled by our decision in DiPaolo v.
Department of Tra/lsportation, Bureau of Drivel' Licensing, 700 A.2d 569 (Pa,
2
Cmwlth. 1997), but we disagree. In DiPaolo, the licensee was not observed
"weaving in and out of traffic, speeding, or moving in an erratic manner" before he
was stopped. lei, al570. The arresting police officer believed that the licensee was
driving under the inOuence of alcohol because of his performance on field sobriety
tests and because he smelled of alcohol. The common pleas court found that the
licensee had passed the field sobriety tests, leaving only the odor of alcohol to
support the .officer's reasonable grounds that the licensee had driven while
intoxicated. This Court opined that it would not disturb the common pleas court's
conclusion that reasonable grounds did not exist, because although the police
officer could have inferred, from the odor, that the licensee had consumed alcohol,
there were no other indicia of intoxication. Here, Barber was stopped because he
drove at a high rate of speed, crossed the center line, and drove through two red
lights. Then after he was stopped, the officer detected the odor of alcohol, believed
that he observed slurred speech, and saw Barber fumble through his wallet, passing
his driver's license several times before producing it. This case can be
distinguished from DiPaolo because Barbel' was observed driving unsafely and
there were other indicia of intoxication accompanying the odor of alcohol.
Our review of the record convinces liS that the arresting police officer
had reasonable grounds to believe that Barbel' was operating his vehicle while
under the influence of alcohol. Accordingly, the January 26, 1998 order of the
Court of Common Pkas of Cumberland County is affirmed,
Q. 0,:" ,"',"-' 1/ '
, .. - "..' .', '"", ....-,
".-", .~.... .".' '.1, \.",) .......(_
. ,. -. - . ' ' '--
ES GARDNER COLlNS, President Judge.!.,'
3
.. - -.--....
, ",
Cl-:tl')'l )") C ^,J' I';
::".ii~~~::.:':~~~~~hp
J ..",
!~~!I.~XI.II^-!l"I.~. lll/lot';
'1'0 the I't"ol:hollota,"y 01 the ^ppn II.He Court 1.0 which the
within milltar hilS ha'!1I i1ppoilll,Hl:
CCMMO'ME^I.'lll COURT OF 1'1\
TilE UNDERSIGNED, I'rothollotdry of the Court of Cornrn'ln Plaas
of r.lJ>1nF:!!I.~~,._.__.m_ County, the said court baln') a court of recor.d,
do hereby cer.tify lhill i1l1l1axad hareto is a true and correct copy
of the whela alld alltira record, including an opinion of the court
as requirad by I'^ R.^.P, 1925, the o['iginal papers and exhibits,
if any on file, the lranscript of tha procaedings, if any, and tha
dockat entrias in tha following mattar:
Cl\..<;E II 97-6273
Cl\..SE II 574 CD 1990
DN,E H'I'^NI.EY BNmER
VH
PENNSYI.VIINI^ COI1MONWEM,'lH OF P^ DEP'I' Or' 'I'RIINSI'OR'I'm'ION BlJRE^U OF
mUVEllH r.ICENSING
'I'ha documants comprising the racord hava baan numberad
from No, I to No. 98 ,and attached hereto as Exhibit ,\ is il
list of the documents correspondingly numbered and identified wiLh
['easonable dcflllitanass, including with respect to each document,
the number of pages comprising the document,
The data on which the record has been transmitted to the
appellate court is ^PRIL 13, 1998
(Seal of Court)
Protnonotat'y
An ndditional copy of this certificate is enclosed, Plcasn
sign lIr,d date copy. thereby acknowledging receipt of this record,
IlECORD IlECE I vrm:
D(lt;e:
, "!
----......-.---------
eS,!"rll~/. rll!!'1
(signature & title)
,~, ~-~...~ '--.. __-"'1 '
, ~,
--D.'I[J.; S'l'ml,EY BARB)':!L____
PlullllllT. IInd ___,
---.c.0:100l'ME.I\L'IlLQ1' PA- P^ IdEJZLQL 'l'Rm
B....OlUlllL\lEILLlCENS I NG
I>cfcndllnt _p, us the same relllains of recurd
hefore Ilw suld ('OUrllIl No, 6.;rD uf
CT\llL-_ Term, A,lJ, 192-L,
hereuulo sel my hlllld Ulld uffixed lhe seu' uf suld ('ourl
duyof :77~L lJ.. 19~
~iz.-if.
(' nllhlllllll;H\
I, ~QE.QILE HOFfER I'residelll.ludge uf Ihe
.Iudiciu' lJistricl, composed uf the ('ounty of ('lImherlund, du cerllly Ihul
--GUR'l'Il'>-I+-I,.QN('~ _____, hy whum the '"lnexed record, cerliflcute IInd
ultcstuliun wcn~ lI101dc Hnd given. IIlHI who. in his 0\\'11 proper handwriting. thereunto suhscrihed his nllme
ano uffixcd the S4.'1I1 of the ('ourt of ('0111111On Ph..'lls of ~mid County. WllS.llt the lime of so tJoing, and 110W is
I'rolhullutnry ;11 II lid for ,uid ('oullty of CUMBERLmD in
the ('ol11l11onwclllth of Pcnnsylvilnia. duly cOl11l11bsiol1cd and llualificd to all of whose acts as slIch full fl1ilh
IInd credit arc nnd ought tn he given us well in ('ourts ofjudkutllrc liS elsewhere. and that the suiu rccurd.
t;crtifh:utc and \ltt~'Slllti()11 an.' in due form of law IIl1d Ill; h'" p'~r {)fnc~r.
~ .'L,~
<.'1I1111111111Wenlih III' I'ellll'yll'lIl1l11
1'lIuIlIy III' <.'lIl11h<'''"l1d
III TESTIMONy WHEREOF, I hlll'e
131\11\
COl11l11ol1w~alth of P~nl1'ylvallia
('Ollllly of ('lIl11helland
I ss:
I, ---CUl1TI5-R~,LONCL...-.______, I'rullHlIlolllry
of the ('ourl III' ('III11Il1I111 Plells ill IIl1d fllr '1I1d
('ollnty, do herehy certify thllt tlie furegolllg Is II
filii, !rile IIl1d eurreel copy uf the wllUlc record ufthe
<'lIse Ihercill stilled, wherein
} ss:
1'"..,jdcIII.!Ul11ll:
I. --CUI+T-JS--R-'t.QNG.---____,_, I'rlllhunolary uf thc CUllrt uf COl11mUII I'lells in
alld fllr Ihc said ('Ullllly, du certify Ihal thc 1I0l1ulahlc GEORGE E HOPfER
hy whom th~ f()r~gtlil1g att~'tutiun wa, l11ad~. and who has thcr~lInto ,uhscrih~d his name, WIlS.llt the time
of making th~n.'()r. ilnd !\\ill is Pr~sid~llt .rlldg~ (Ifth~ ('Olin Ill' ('01ll11l0n PI~as, Orphun' ('ollrtllnd Court nf
Quarter Scssions or thc Pcacc in and for said ('oullty, dllly COl11missioncd and tlUalificd: tn nil whose acts
liS such full faith and credit are Ill1d ollght to he givl'n, ilS \'lcll in Courts of judicature us c1sewhcr,e.
I I ,", c I
c ~.
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a- a- d
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Alllong Ihc I(cconls uud I'rocccdlng' cnrolkd in Ihc court of COlllnlllll Pic", In ,,"d fnr Ihc
counly of __..Q.H!1lllil1LllNJ2_____,____,_,___ In Ihc ('olllnhlllwc"lIh of I'cnn'ylV<lItlu
')7-0(,73 CIVIl.
10 No, .5.2UJL2ll_____ TCIIIl, 1'1 ___ Is contulncd thc following:
COpy 01'
lIJ.lllElill1\N
DOCK ET ENTI( Y
MI,E S'l'lINl,EV Il/\RBEll
Ell 97-0673 CIVIl,
VI>
Ell 574 CD 98
PEl'N3YLVIINIA COM:HiEI\I,'I1I 01" PA - DEI'r OF TIlmiPOlITNl'IOO BURFMJ OF D1UVER
I,ICEl'oElEI~; RIVERf'llCNI' Of'l''ICE CENI'ER
11-13-97
11-18-97
1-27-98
2,.09-98
2-20-98
2-23-98
M'PEM, FRCll1 SUSPENSION OF DlUVERS LICENSE
ORDER OF COOR'I' - DlVmD ll-lB-97- IN RE I\PPEM, FRCll1 SUSPENSION OF
OPERNI'OH'S PRIVIl.EGE - IIFAIHNG 1-26-98 9:30 AM CR 5 - BY KEVIN 1\
HESS .J FUH ErMl\RD E GUIUX) .1
COPIES Ml\ILED 11-19-97
ORDER OF COUHT - DI\TEr> 1-26-98 - IN RE I\PPEI\L OF LICENSE
SUSPENSION DISMISSED CCMMONWEI\L1lI DEpl\R'IMENT OF
THl\NSPORTI\TION I S I\CrION IN SUSPENDING DEFENDI\NT I S LICENSE IS
AFFI~ - BY ErMl\HD E GUIIXl J
COPTES Ml\ILED 1-27-98
TR!\NSCHIPr [.'ILED
NOTICE Of' I\PPEI\L TO CCMMOl\'WEN:I1-1 caJRT BY ;JFJ\NNE B WIGBELS ESQ,
ORDER FOR TRIINSCRIPr - DI\TED /,-21-98 - COUHT HEPOR'rnH IS HEREBY
OHDERED TO PHODUCE CERTIFY I\ND FILE '!HE TRIINSCHIPr - BY EiJ.'Il\RD E
GUIOO .J
ORDER OF' CCXJRT DI\TED 2-23-98 - I\pPELLIINT IS DIRECmD TO FUIIDIWI1lI
FILE OF RECORD !\ND SERVE UPON TIlE UNDERSIGNED 1\ CONCISE STI\TI-l-1ENT
OF 111E MI\'ITERS CCMPLI\INED ON I\PPEI\L - BY EiJ.'Il\RD E GUIOO .J -
PI\RTIES NOI'IFIED BY THE COORT
CCMMONWEI\l.'JlI COURT OF 1'1\ NOl'ICE OF I\PpEI\L IXX:KETING II 574 CD 1998
I\PPELl.AN'I"S PETITION fOR STI\Y PENDING I\pPEI\L PURSUIINT ar RULES OF
I\PPELLI\TE PROCEDURE 1732 OF TIlE pENNSYLVI\NII\ RULES OF I\pPELLl\'rn
IIIIBJRIlINrnJ.1 OPINION !\NO ORDER OF COURT- DI\TED 3-18-98 - IN HE
rE'l'I1'ION fDR STI\Y PENDING l.ICENSE SUSPENSION I\PPEI\l. - DDlIEI> - BY
ErMI\RO E GUIllO ,J
copms Ml\Il.ED 3-20-98
IN RE OPINION pU8SUI\NT TO RULE 1925 - lJl\TED 3-25-98 - BY EiJ.'Il\RD F
GUIlXl .J
COPIFS MI\ILEO 4-6-98
MISC,
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COMMONWEALTH OF PENNSYLVANIA I
PENNSYLVANIA DEPARTMENT I
OF TRANSPORTATION, I
BUREAU OF DRIVER LICENSING, I
Appellee I
I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: Q7. (P;:)13
v.
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION
APPEAL
AND NOW, thie /'It.~
ORDER OF
day of
1997, upon
COURT
'')/12ttnLAi!'1)
consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S
PRIVILEGE, it
ie hereby Ordered that a Hearing
'ltl) ~
-,( t~ day of <' ,t 'J !(,It'/. '1'( I
,f. r {}'
m. in Courtroom No..J of the
on the matter shall
'91'i1 Q'3-"'"
}.9.9-"r, at r I "
be held on
o'clock (l.
Courthouse.
Cumberland County
A supersedeas is granted pursuant to Vehicle Code Section
1550(b)(1) until such time that this honorable court resolves this
appeal.
BY THE COURT:
1,)-.\..1
",1/1
C. (~'N /)0
J.
Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Room 103,
Transportation & Safety Building, Harrisburg, PA 17120
,-Patrick F. Lauer, Jr., Esq" 2108 Market St" Camp Hill, Pa 17011
II C...ll.c< d_..-y.",j,,( lI/iq!<{1,
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NOI Q'7- LP,J73
v.
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION
APPEAL
APPEAL FROM SUSPENSION OF 'OPERATOR'S PRIVI~
AND NOW comee the Appellant, Dale Stanley Barber, by and
through hi6 attorney, Patrick F, Lauer, Jr., Esquire, and
respectfully avers the following:
1, Appellant resides at 533 North Enola Drive, Enola,
Cumberland County, Pennsylvania 17025.
2, The Appellant received a Notice dated October 29, 1997,
that as a result of hie alleged violation of Vehicle Code Section
11547, Chemical Test Refusal, hie driving privilege was being
suspended for a period of one year, effective suspension date
December 3, 1997, at 12:01 a.m, A true and correct copy of the
Notice is attached as Exhi.bit "A",
3. The Appellant submi.ts that the police officer lacked a
reasonable bas~~ to request Appellant to submit to a chemical test.
4. The Appellant submits that he did not intelligently and
voluntarily refuse to submit to a chemical test.
/l
"
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WHEREFORE, your Appellant raspeotfully requests your
Honorable Court to sohedule an evidentiary hearing on the matter,
Respeotfully submitted,
/~/l
Datel
~, ~ \ \ -~\ '1
Patr ck F. auer, Jr" Esquire
2l0B Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1BOO
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
WOI
v.
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION
APPEAL
ATTORNEY VERIFICATION
'rhe undersigned, Patrick F, Lauer, Jr., Esquire, hereby
verifies and states that:
1, He is the attorney for the Appellant, Dale Stanley Barber;
2. He is authorized to make this verification on his behalf;
3. The facts set forth in the foregoing Appeal are known to him
and not necessarily to his client;
! 4. The facts set forth in the foregoing Appeal are true and
correct to the best of his knowledge, information and belief; and
5. He is aware that false statements herein are made subject to
the penalties of 18 Pa, C,S, 4904, relating to unsworn
falsification to authorities,
Respectfully submitted,
.-
. ,
Datel
\\'~\\~L
Pat ic F, Laue, Jr., Esquire
210 Market Street, Aztec Building
Camp lIill, Pennsylvania 17011-4706
IOn 46430 Tel. (717) 763-18,00
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
I OF TRANSPORTATION I
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NOI
v,
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION
APPEAL
CBRTIFICATB OF SBRVICB
I hereby certify that I am this day serving a copy of the
foregoing Appeal upon the person and in the manner indicated
below, which service satisfies the requirements of the
Pennsylvania Rules of civil Procedure, by depositing a copy of the
same in the united States Camp Hill, Pennsylvania, through first
class certified mail, prepaid and addressed as followsl
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104
Respectfully submitted,
Datel
..li-- \\,~ 1
P tri . uer, Jr" Esquire
2 08 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
10# 46430 Tel. (717) 763-1800
5
EXHIBIT A
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Oureau of Driver Licensin!l
Harrisburg, PA 17123
OCTOOER 29, 1997
DALE STANLEY BARBER
533 N ENOLA DR
972956117224785 001
10/22/1997
16220513
07/03/1954
ENOLA PA
17025
Dear Motorist I
As a result of your violation of Section 1547 of the Ve-
hicle Code, CHEMICAL TEST REFUSAL on 09/27/1997, your driving
privilege is being SUSPENDED for a period of 1 YEAR(S).
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 (camera 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 1571(a)(4) of the Vehicle Code,
Althou!lh the law mandates that Your driving privilege is un-
der suspension even if YOU do not surrender your license,
Credit will not begin until all current drlver's license
product(s), 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 SERVIHG THIS SANCTION.
The effective date of suspension is 12/03/1997, 12:01 a.m,
********************************************************************
IWARNINGI If YOU are convicted for drivin!l while your license is I
Isuspended, the penalties will be: not less than 90 days imprison-I
Iment and a 1,000 fine and an additional 1 year suspension, I
********************************************************************
\ i
. .---... ,._~--
. - ..-. - ..
97295611722(,785 ,
SEND FEE/LICENSE/DL-16LC/TO:
Department of Transportation
Bureau of Driver Licensing
P,O. Box 686'93
Harrisburg, PA 17106-8693
INFORMATION (7:00
IN STATE.
OUT-OF-STATE
TOD IN STATE
TOD OUT-OF-STATE
AM TO 9:00 PM)
1-800-932-(1600
717-391-6190
1-800-228-0676
717-391-6191
Please see tho enclosed apI,lication for restoration fue in-
formation.
You have the right to appeal the Department's action to the
Court of Common Pleas (Civil Division) within 30 days of the
mail date (OCTOIlER 29, 1997> of this notice. PLEASE NOTE
that this Civil Appeal is in addition to any appeal yOU have
to file from the criminal conviction.
THE APPEAL MUST BE SENT BY CERTIFIED MAIL TO:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR. RIVERFRONT OFFICE CENTER
HARRISBURG, PA. 17104
Sincerely,
~~~,~
Rebecca L, Ilickley, Director
Ilureau of Driver Licensing
8
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1'......
COMMONW8AL'I'fI OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTM8NT
OF THANSPOR'l'ATION /
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COUR'l' OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97-6273 CIVIL TERM
V,
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION APPEAL
IN REI APPEAL OF LICENSE SUSPENSION
QIillER OF COURT
AND NOW, this 26th day of January, 1998/ after
hearing on this matter and review of the case law presented by
counsel, it is the order of this Court that the Appellant/s
appeal from suspension of operator's privilege is dismissed, and
the Commonwealth Department of Transportation/s action in
suspending Defendant/s license is affirmed.
By the
-----.
)
-"
Edward E. Guido, J.
George H. Kabusk, Esquire
Office of Chief Counsel
1101 South Front Street
3rd Floor
Harrisburg, PA 17104-2516
For Appellee
C"'O'-'-''''' rr~'(\.cl!., ~i.. .
":.l 'd qs' .
.!> ,('.
Patrick F. Lauer, Jr., Gsqu~re
2108 Market Street
Aztec Building
Camp Hill, PA 17011
For Appellant
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COMMONWEALTH OF PENNSYLVANIA, I
DEPARTMENT OF TRANSPORTATION, I
BUREAU OF DRIVER LICENSING, I
Appellee I
V. I
I
I
I
IN THE COURT or" COMMON PLEAS OF '
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NOI 97-6273 CIVIL TERM
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION APPEAL
NOTICE OF APPEAL
Notice is hereby given that Dale Stanley Barber, Appellant in
II the above-captioned license suspension action, hereby appeal", to
III
the COllunonwealth Court of Pennsylvania from the attached Order
,I
"
:! entered in this matter on the 26th day of January, 1998. This
!,I
. Order has been entered into the docket as evidenced by the attached
'I
II
copy of the docket entries.
Respectfully Submitted I
, ',,' / ,i // / 'A~?';f.~ l
e B. Wigbels, E quire
Market Street/Aztec Building
Camp Hill, PA 17011-4706
phonel (717) 763-1800
PA Supreme Ct. I.D, No, 68735
ATTORNEY FOR APPELLANT
DATED I
2IFI/V?
51
PYS510
1997-06273
Cum~vL>\land County Prothonotary' F,-pffice Page
Civil Case Inquiry
PENNSYLVANIA l.OMMONWEALTII OF (VS) BARBER uALE STANLP.Y
1
Reference No" 1 Filed". .,." r
Case Type,....: APPEAL - LICENSE SUSP Time..!"....1
Judgment...,..: .00 Execut on Date
Judge Assigned: GUIDO EDWARD E Sat/Dis/Gntd.,
Jur~ Trial., '1
lIig er Court
Ilia er Court 2
***************************.*******.****w***********..*i........................
General Index Attorney Info
BARBER DALE STANLEY APPELLANT TAUER PATRICK F JR
533 NORTII ENOLA DRIVE
ENOLA PA 17025
PENNSYLVANIA COMMONWEALTH OF
PA DEPT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
RIVERFRONT OFFICE CENTER 3 FL
HARRISBURG PA 17104
11/13/1997
8142
0/00/ 000
0/001 000
APPELLEE
.***......**.***.......**.....................***........**......**.............
* Date Entries *
..........**.*****.................**......**...................................
11/13/97 APPEAL FROM SUSPENSION OF DRlVERS LICENSE
11/18/97 ORDER OF COURT - DATED 11/18 97 - IN RE APPEAL FROM SUSPENSION OF
OPERATOR'S PRIVILEGE - HEARl G 1/26198 9:30 AM CR 5 - BY KEVIN A
HESS J FOR EDWARD E GUID9 J - COPIES MAILED 11/19/97
01/27/98 ORDER OF COURT - DATED 1 26/98 - IN RE APPEAL OF LICENSE SUSPENSION
- DISMISSED - COMMONWEALTH DEPARTMENT OF TRANSPORTATION'S ACTION IN
SUSPENDING DEFENDANT'S LICENSE IS AFFIRMED - BY EDWARD E GUI~O J _
COPIES MAILED 1/27/98
02/09/98 TRANSCRIPT FILED
.................................**.......**....**..**....**....***.............
* Escrow Information *
* Fees & Debi ts Bea Bal Pvmts/ Ad i End Bal *
~..*..*.....*.....*******.*..**.~**..*.*.~...*.*~*******.***.....***............
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
35.00
.50
5.00
5.00
35.00
.50
5.00
5.00
.00
.00
,00
.00
45.50 45.50 .00
.*....**************************************************************************
* End of Case Information *
****************************************~***************************************
------------------------ ------------
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COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
v,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
:
: DOCKET NO:
:
I
:
CERTIFICATE OF SERVICE
97-6273 CIVIL TERM
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION APPEAL
I, Jeann~ B., Wigbele, Eequire, do hereby certify that this
day I served upon the following a true and correct copy of the
! NOTICE OF APPEAL filed at the above-reference docket number by
placing a copy of same in the United States mail at Camp Hill,
Pennsylvania, postage prepaid, and addressed as follows:
The Honorable Edward E. Guido, Judge
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
George H. Kabuak, Assistant Counsel
PA Department of Transportation
Bureau of Drivere Licensing
Office of Chief Counsel
1101 S. Front Street, 3rd Floor
HarriSburg, PA 17104-2516
Michele A. Lippy
Official Court Reporter
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
BY:
1". ,I' :/ ILl " . )
nn~ B. Wigbels, Esquir
w Offices of Patriok F. Lauer, Jr.
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
PA Supreme Ct. ID No. 68735
Phone: (717) 763-1800
ATTORNEY FOR APPELLANT
DATED:
'2' !;'1/fj""
53
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DGPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
97-6273 CIVIL TERM
DALE STANLEY BARBER,
Appellant
, LICENSE SUSPENSION APPEAL
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the Honorable EDWARD E.
GUIDO, J" Cumberland County Courthouse, Carlisle,
Pennsylvania, on Monday, January 26, 1998, in
Courtroom Number Four,
APPEARANCES:
GEORGE KABUSK, Esquire ,
For the Department of Transportation
PATRICK F, LAUER, JR., Esquire
For the Defendant
II
~
INDEX TO WITNESSES
FOR COMMONWEALTH
DIREC~ CROSS REDIRECT ,RKCROSS
Off. Daniel Hair
4 11 33 35
-.-.------------------------
INDEX TO EXHIBITS
FOR COMMONWEALTH
Ex, No. 1 - chemical warning
MARKED
Al2M.I.I.TlID
pre-marked
10
FOR THE DEFENDANT
Ex. No, 1 - probable cause
affidavit
15
2
I~
..
THE COURT: Good morning, gentlemen.
MR. KABUSKI Good morning, Your Honor,
MR. LAUIlR: Good morning, Your Honor.
THE COURT: This is the Barber appeal?
MR. KABUSK, Yes, Your Honor,
THE COURT: Okay. And I'm not sure, who has
the burden? You do?
MR. KABUSK: Yes, Your Honor.
THE COURT: And you are?
MR. KABUSK: My name is George Kabusk,
1
2
3
4
5
6
7
8
9
10
11 K-a-b-u-s-k, I'm assistant counsel with PennDOT
12 representing the Department of Transportation in this
13 matter.
14 THE COURT: Okay. Counsel wish to make
15 opening statements?
16 MR. LAUER: Just a real short one, Your
17 Honor,
18 (Whereupon, Mr, Lauer opened on behalf of the
19 Defendant.)
20 (Whereupon, Mr. Kabusk opened on behalf of
'21 the Department of Transportation.)
22 THE COURT: You may proceed. We'11 take a
23 recess if you want to get the tape to present into evidence
24 as part of your case, Mr, Lauer, but let's proceed with the
25 Commonwealth first.
3
13
....
1 MR, LJ\U8R I Yes, Your Ilonor.
2 MR. KABUSK: Your Honor, by official notice
3 dated and mailed October 29th, 1997, the Commonwealth of,
4 Pennsylvania, Department of Transportation notified the
5 motorist, Dale Stanley Barber, operator's number
6 1-6-2-2-0-5-1-3, that as a result of his violation of
7 Section 1547 of the Vehicle Code relating to Chemical Test
8 Refusal on 9/27/1997, his driving privilege was being
9 suspended for a period of one year. The Department now
10 calls Officer Daniel Hair,
11 Whereupon,
12 OFF. DANIEL HAIR
13 having been duly sworn, testified as follows:
14 DIRECT EXAMINATION
15 BY MR. KABUSKI
160 Officer Hair, please state your name, and
17 spell your name for the record.
18 A My name is Officer Daniel Hair, H..a-i-r,
19 0 And where are you employed?
20 A I'm employed with the West Shore Regional
21 Police Department.
22 0 And you're employed as a police officer?
23 A That's correct,
24 0 During the course of your official duties,
25 have you had occasion to investigate an alleged incident of
4
IY
1 DUI on or about 9/27 of 1997?
2 A Yes, I did,
3 Q Could you tell the Court about that incident?
4 A Around 2115 a,m, that date I was on patrol
5 and observed a bluish colored older Chevrolet truck
6 traveling north on South Third Street at a h,igh rate of
7 speed, I got in behind the vehicle, which did travel down
8 Market Street off of excuse me -- off of South Third, and
9 down through what we call the bottleneck, at which time
10 there are two red lights in that area, and I did observe the
11 vehicle go through the red lights at that intersection
12 without stopping,
13 I proceeded to activate my emergency lights,
14 and attempted to pull the vehicle over for that violation,
15 The vehicle did come to a stop, It traveled down North --
16 excuse me, South Front Street, and then made a left onto
17 Market in Wormleysburg, and came to a stop at the
18 intersection of River -- South River and Market Street.
19 I approached the vehicle, J.dentified myself
20 to the driver, told him why I had stopped him. He had made
21 a comment about if I knew that -- if I had known that it
22 wouldn't have been safe I wouldn't have went through. I
23 asked him for his driver'S license, registration, and
24 insurance, He fumbled through lookJ.ng -- he flipped through
25 his wallet looking for his identification. He passed his
5
15
--
,-...,
1 license several times,
2 In the course of speakIng to him I did detect
3 an odor of an intoxicating beverage emitting from his
4 breath. He did produce a Pennsylvania driver's license,
5 which identified him as Dale Stanley Barber, if I recall
6 correctly at 533 North Enola Road in Enola, who is seated in
7 the courtroom today to the -- beside Mr, Lauer.
8 I then asked him if he had been drinking that
9 evening, which'he did reply yes, I asked him how much? He
10 said he had a couple of beers at the Wanda's, and at that
11 time I asked him to step from the vehicle and step to the
12 front of his vehicle.
13 Myself and Officer Ambrose, who was in the
14 car with me, proceeded to tbe front with him. At that time
15 I asked him -- I told him I was going to ask him to perform
16 a one leqged ~tand tesc. I told him that he should wait
17 until I explain the test before he begins. I explained the
18 test to him, at which time my partner, Officer Ambrose,
19 asked him if he felt he had any injuries that would prevent
20 him from completing the test, At that time he advised us
21 that he had been in an accident and had some back injury.
22 So then Officer Ambrose asked him if he would
23 do a nine step heel to toe test, which Officer Ambrose did
24 administer, and I did observe. During the test I observed
25 myself that he was swaying, He did not complete the test
6
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was - -
MR. LAUER:
Ambrose said, Your Honor.
THE COUR'l':
'rHE WITNESS:
MR, l<ABUSK:
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back of t~e patrol vehicle.
Q And then what happened?
A I then took a few minutes to find an I~plied
Consent Form, advised Mr. Barber that we were going to be
asking him to submit to a test of his blood, at which time
he said he was not going to give any blood, I then read the
form to him.
5
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Q What form are you referring to?
A The form under the Chemical Testing Warning.
MR. KABUSK: Okay. May I approach the
9
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witness, Your Honor?
12 THE COURT: Sure.
13 BY MR. KABUSK:
14 Q This has been marked Commonwealth's Exhibit
15 Number 1, I~ this the form that you read the motorist?
16 A Yes,
17
Would you read aloud what you read to the
Q
18 motorist?
19 A Again, after he had originally told us he was
20 not going to give blood I got the, form and I read the
21 following to him, Please be advised that you are now under
22 arrest for driving under the influence of alcohol or a
23 controlled substance pursuant to Section 3731 of the Vehicle
24 Code.
25I am requesting that you submit to a che.mical
8
IB
, "'j .1 .................., '-_ _ u" '.-
..
1 test of blood, It is my duty as a police officer to inform
2 you that if you refuse to submit to the chemical test your
3 operating privilege will be suspended for a period of one
4 year,
5 The constitutional rights you ha~e as a
6 cr.iminal defendant, commonly known as the Miranda Rights,
7 including t~e right to speak with a lawyer and the right to
8 remain silent, apply only to criminal prosecutions and do
9 not apply to the chemical testing procedure under
10 Pennsylvania's Implied Consent Law, which is a civil, not a
11 criminal proceeding.
12 You have no right to speak to a lawyer, or
13 anyone else, before taking the chemical test requested by
14 the police officer nor do you have a right to remain silent
15 when asked by the police officer to submit to the chemical
16 test, Unless you agree to submit to the test requested by
17 the police officer, your conduct will be deemed to be
18 refusal, and your operating privilege will be suspended for
19 one year.
20 Your refusal to submit to chemical testing
21 under the Implied Consent Law may be introduced into
22 evidence in a criminal prosecution for driving while under
23 the influence of alcohol or a controlled substance. At that
24 time I asked Mr. Barber if he would sign the form. He
25 refused to sign.
9
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Q
read it now?
A
Did you read this form word for word as you
Yes, sir.
MR. KABUSK, Okay. May I approach the
witness, Your Honor?
THE COURT, Sure.
MR. KABUSK, I'd move for the admission of
what's been marked Commonwealth Exhibit Number 1, I
provided Mr, Lauer with a copy.
THE COURT, Mr, Lauer,
MR. LAUER, No objection.
THE COURT: It's admitted,
(Whereupon, Commonwealth's Exhibit No, 1
was admitted into evidence.)
'3Y MR. KABUSK,
Q And then what happened, Officer?
A At that time then it was of my opinion that
we would take him to the booking center, and at which time
again he was afforded a second opportunity to submit to a
test of his breath, which is what they have a machine there
for. I, again, read a separate form to him from the
original form, and at which time he refused to that test as
well,
Q Okay. You say a separate form, A form
identical to this though?
10
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1 A It's identical to that, but not the ~ame one.
2 Q And you took him to the booking center, Is
3 there a breathalyzer machine there?
4 A Yes, sir.
5 Q Did he even attempt to
6 A No, sir.
7 Q He just refused?
8 A That's correct,
9 Q In what sense?
10 A He said he wasn't going to submit to the
11 test. I don't remember the exact words, but he said he was
12 refusing to take the test, and he refused to sign that form,
13 as well.
14 MR. KABUSK: No further questions,
15 THE COURT: Mr. Lauer.
16 MR. LAUER: Thank you, Your Honor,
17 CROSS EXAMINATION
18 BY MR. LAUER:
19 Q Sir, everything you've testified here today
20 is what you actually observed, correct?
21 A Correct.
22 Q And you prepared yourself to come here to
23 testify, correct?
24 A Correct.
25 Q How much experience did you have as a police
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officer on the streets as of September 27th, 1997?
A Four months. Let me take that back. Four
months as a full-time officer.
o Four months as a full-time officer?
A That's correct.
Q How much training did you actually receive in
the walk and turn test?
A I have received none.
o How much training have you ever received in
the HGN test?
A
o
None.
How much training did you ever receive on the
one leg stand?
A It has been explained to me, but I've never
received any formal training.
o Are you certified by anyone in giving any of
those field sobriety -- were you certified by anyone at the
time in giving those tests?
A No, sir.
o Since the date of that arrest have you
received any training -- formal training on the walk and
turn or any of the other. field sobriety tests?
A No, sir.
o Okay. Now, you charged him with going
through a red light, agree?
12
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1 A Correct.
2 0 Okay. You would agree with me that sometimes
3 people go through red lights yet may not be impaired even
4 though they had the odor of alcohol on their breath? Would
5 you agree with that?
6 A I guess I would hewe to agree with that,
7 0 Okay. Now, is it also fair to say/ sir, my
8 client did not have bloodshot eyes, agreed?
9 A I could not testify to that. I was not
10 close I was not close enough in the sense to observe the
11 exact if there was any discoloration to his eyes.
12 0 Okay. So you never got close enough to him
13 to observe his appearances to even look into his eyes to
14 determine if they were bloodshot, correct?
15 A Correct.
16 0 Okay. It/ s also fair to say/ sir, that his
17 speech was not slurred, agree?
18 A No, I do not agree,
19 0 Where have you documented at all in any
20 written report that his speech was slurred, sir?
21
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A I would have to check my report,
0 Please do.
THE WITNESS: May I/ Your Honor?
THE COURT: Sure.
THE WITNESS: It is not documented in my
13
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1 report,
2 BY MR. LAUER,
3 Q Okay. Is it fair to say, air, you don't
4 recall if it was or notl isn't that true?
5 A To the best of my recollection it was,
6 Q To the best of your recollection what was he
7 wearing that night?
8 A I believe he had a white shirt on and some
9 blue jeans, and possibly some boots,
10 Q Are you sure about that?
11 A I cannot be one hundred percent sure, no.
12 Q Okay. Is it also fair to say jfOU can't be a
13 hundred percent sure that his speech was slurred, agree?
14 A I would agree with that.
15 Q My client was coherent when he spoke to you,
16 agree?
17 A Yes,
18 Q Okay. He was mentally cognizant of what was
19 going on when you were talking to him, agree?
20 A Agree.
21 Q He was in control of his faculties when he
22 was standing outside there, agree?
23 A When he was standing there, yes,
24 Q Okay, You make mention of this thing about
25 swaying, You have no proof that that was from alcohol. You
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don't knuw if that was from the back injury that he told you
about, agree?
A Agree.
Q Okay,
had a back injury,
In fact, not only did,he tell you he
The word he used was he had suffered a
sp-rious back injury; ian't that true?
A That is not true.
Q So that's not true?
A No,
Q Is it true that he told the other officer
that he suffered a serious back injury in your presence?
A No,
MR. LAUER: The Court's indulgence.
BY MR, LAUER:
Q Sir, when you prepare the Affidavit of
Probable Cause YOll want to be specific about what you say.
You wouldn't want to misquote someone, agree?
A ' Agree,
MR. LAUER: Okay. Your Honor, may I approach?
THE COURT: Sure.
BY MR. LAUER:
Q This will be marked as Defense Exhibit Number
1. Is this your signature on the Affidavit of probable
Cause?
A Yes.
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Q And on here it says, being duly sworn
according to law you state that the facts set forth in the
foregoing affidavit are true and correct, agree?
A Agree.
Q And on here you specifically said, did you
not, that my client told you or Officer Ambrose that he
sustained a serious back injury?
A Yes,
Q Okay. So, in fact, what you just told the
Judge here about him not making that statement was not true,
correct?
A
this time,
Q
It was true to the best of my recollection at
All right. So, in fact, it is true that, in
fact, he told you he had a serious back injury?
A Yes.
Q Okay. Now, sir, did you actually demonstrate
the walk and turn test yourself?
A I did not, no,
Q Okay. You weren't even giving him the walk
and turn test?
A
As I stated earlier, no, I did not administer
that test.
Q So you were not even the person who was
grading him on the walk and turn test, correot?
16
Ah
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1 ^ Corroc:t.
2 Q Okny. But you rocall what the other officer
3 told my client to do, I take it?
4 ^ Pretty much, r couldn/t say exact word for
5 word right now, It was a few months ago,
6 Q Okay, You prepared to como here, agree?
7 A As best as I could with the notice that I
8 got / yes.
9 Q Now, my client, which way was he told to turn
10 on the walk and turn test when he got to the ninth step? To
11 the left or to the right?
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MR, KABUSK: Objection, Your Honor, on the
relevancy of that question. The details are immaterial to
this proceeding.
THE COURT: Relevancy.
MR. LAUER: Judge, clearly it goes to whether
he said my client failed the field sobriety test or didn't
complete it successfully. It goes to his observations of
when he looked at my client in making a determination as to
whether or not he should even be asked to take a breath or
blood test,
THE COURT:
THE WITNESS:
told to turn to the left.
Overrule the objection,
If I recall correctly, he was
17
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1 BY MR, r,AUE:R I
2 Q Okay. My client did turn to the left, isn' t
3 that true?
4 A That is true,
5 Q Okay, Now, do you know whether or not there
6 is an instruction stage part of the walk and turn test?
7 A For a fact, no, There was one given to him
B though,
9 Q Okay. My client did stand there erect in the
10 instruction stage, agree?
11 A Yes.
12 Q Okay, He wasn't swaying from left to right
13 when he was in the instruction stage; isn't that true?
14 A Not th,lIt I noticed, no.
15 Q You didn't notice any swaying, agree?
16 A That's correct,
17 Q Correct. Now, he kept his arms at his side
1B in the instruction stage, agree?
19 A Correct.
20 Q Okay. Now, how long did he have to stand
21 there? Around a minute; isn't that true?
22 A Roughly.
23 Q Okay. And he stood there in a locked
24 position; one foot in front of the other, agree?
25 A N?, he did not stand there in that position
1B
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during the instruction stage. He was standing like side by
side,
Q And that's how he was told to stand?
A I can't recall,
Q Okay. You don't recall. Okay. He was told
to walk nine sters in a straight direction, agree?
A Agree.
Q Okay. And, sir, is it true he was also told
to count out loud?
A I don't recall.
Q Okay. He did count out loud though, 1, 2, 3,
all the way to 91 isn't that true?
A I can't recall.
Q Okay. Now, isn't it true, sir, that there
was a line there that he actually walked on? Isn't that
true?
A No, there was no line, '
Q Okay. He did walk in a straight direction,
isn't that true?
A Pretty much, yes.
Q Okay. Sir, your basis for asking him to take
this test was -- you were a third party watching the other
officer do the test then, I guess, correct?
A CorJ:'ect. I observed the test, yeah.
Q Okay. Now, he kept his arms at his side the
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entire nine steps up, agree?
A Yes.
Q Okay. And that's what he was told to do,
agree?
A Right,
Q Sir, on the third step of the fi rst nine,
that was heel to toel isn't that true?
A I don't recall which steps that he did miss
on,
Q Sir, where were you standing in relation to
my client when he was walking the nine steps Up?
A I was standing to his right roughly three
feet away.
Q Okay, To his right, So if my client would
have been walking towards where you are and the Judge is,
you would have been to my client's right and back to his
rear a little bit?
A Actually -- well, from where he started the
test I was standing parallel right beside him.
Q So he would be right in the middle then? Are
you talking about in the middle?
A Well, from the point that he started the
test, I was standing if I'm standing here, I was looking
straight at him here as he was facing ,..
Q Let me get this straight.
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8 the entire time, correct?
9 A Correct.
10 Q So when my client walked passed you, you
11 weren't exactly looking at each heel to toe when he walked
12 passedi isn't that true?
13 A I was observing him, I was observing his
14 whole--
15 Q His whole body?
16 A - - movement.
17 Q Correct. But you didn't see where each foot
18 landed on each step, agree?
19 A Not on every step, correct.
20 Q You were trained to look at each step though
21 as he walks bYi isn't that tr.ue?
22 A I guess under the training, the SFST training
23 you are. As I stated earlier, I've not been trained.
24 Q According to that training that's what you're
25 supposed to do, but you didn't do that, right?
A Okay,
Q If I was start ing here facing towards you,
where were you standing?
A To your right,
Q Directly to my right?
A Yeah.
Q And you stayed in that position completely
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A Correct.
Q All right. Now, when he turned, sir, he kept
his arms at his side, agree?
A Agree,
Q And sped f ieally what was he told to do on
the turn as far as his feet goes?
A To move his -- keep his left foot Gtill, and
then turn in a circle. Like turn if I can get up ...
Q No, Just tell me. I don't want you to show
me right now. Do you do a military pivot?
A I suppose that might be what they call it.
I'm not in the military, So I wouldn't be familiar with
that turn.
Q So he wasn't told to take small ,little steps
in a circle?
A Well, yeah, keep his left foot still and step
around in a circle.
Q Okay. In fact, that's what he did; isn't
that true?
A Correct.
Q Okay. And he didn't lose his balance when he
turned, agree?
A Agree.
Q Okay. He kept his arms at his side the
entire time on the turn, agree?
22
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A
Agree.
Q
Okay. And he took the correct number of
4
3 steps going UPI isn't that true?
5
A
As I recall, yes.
Q
Okay.
Now, sir, isn't it true that what your
,
6 testimony is is that he missed heel to toe, according to
7 your testimony, several times out of the 18, correct?
8
9
10 eighteen?
11
12 many.
13
A
Correct.
Q
Okay. So that could be what? Two out of
A
Correct. I couldn't tell you exactly how
Q
And you don't know if it was on the first
14 nine or the second nine? You don't know - - the two times he
15 supposedly missed, whether it was the last two steps of the
16 eighteen or the first two steps of the first nine or if it
17 was on the third step of the first nine or the eighth step
18 of the second nine?
19
A
No, I couldn't tell you.
And you also, sir -- are you aware that a
20
Q
21 person can keep their heel from their toe up to a half an
22 inch and not be graded on that test?
23
A
No, I'm not aware of that.
25 because a person supposedly would do that, that wouldn't
Okay. You would agree with me that just
24
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mean they were actually impaired, agree?
A Agree.
Q Okay. Now, his heel from h.is toe, s.ir, the
second time that he supposedly did that, how far w~s his
heel from his toe when YOll say he supposedly missed that?
A I've already testif.ied I couldn't te~l you.
Q Oh, so .it could have been an eighth of an
inch for all we know then, agree?
A Agree.
Q It could be a tenth of an inch, agree?
A Agree. I don't th.ink I would be able to
detect a tenth of an inch.
Q Okay. Now, when he supposedly didn't go. heel
to -. back up. On the second nine steps coming back he
counted out loud there, agree?
A As I said earlier, I don't recall if he
.counted out louri or not.
Q He kept h.is arms at his side the entire time
coming back, agree?
A Agree.
Q He walked in a straight direction up the
first nine and a straight direction back the second nine,
agree?
A In a straight direction, yes.
Q Okay. He never lost his balance on the
24
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of the line?
Q
A
Q
A
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steps, agree?
A
Q
1 second nine steps, agree?
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7
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Q
A
17
Q
,
As far as lost his balance how? Stepped out
Yes.
No.
No, that that never occurred, agree?
Agree.
He never lost his balance on the first nine
For the most part, yes.
15 steps did his arms ever get raised, agree?
Okay. And at no time on the second nine
13
14
Agree.
Sir, I want you to tell me what you have in
18 writing in any of the training you've ever received that
19 says what is a pass or a fail on that test?
A
21 received training in that.
I believe, as I testified, I have not
22
Q
23 says what is a pass or a fail on that test?
What have you ever received in writing that
24
A
I have not received anything in writing.
So you have no personal knowledge as to any
25
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standards as to what a pass or a fail is on that test,
agree?
A No.
Q So, in fact, sir, since you have no training,
and you've never received anything in writing according to
any standards you mentioned a standard field sobriety
test, agree?
A r testified that my partner had administered
the test, yes.
Q And he never gave you any training on the
sta,ndardized field sobriety tests?
A Correct.
Q Okay. So my client, sir, basically, for all
we know, with a pass or fail, could have passed that test
according to the standards of the field sobriety tests since
you don't know what they are, agree?
A As far as my training I guess, yes. I would
say yes.
Q All rigilt. Now, you've seen football games
before, right?
A
Q
Yes.
And where I use fumbled, that means dropped,
right?
A In a football game, yes, that's what that
means.
26
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Q
My client nuver dropped any documents when he
2 handed them to you, agree?
3
4
A
Agree.
Q
All right. So when you used the. word fumbled
5 in your affidavit you don't mean that he dropped anything,
6 agree?
7
8
A
Agree.
Sir, that night his window was broken on his
Q
9 car; isn't that true?
15
16 isn't that true?
17
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Window?
A
Q
Yeah, my client's driver's side window was
10
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12 broken?
13
14 if it was broken or not.
A
It was down when I walked up. I didn't see
Q
It wouldn't go down the whole way though;
A
It was down part way when I walked up.
Q
Okay.
A
And he did state to me -- I'm sorry.
Q
Go ahead. I'm sorry.
A
Yeah, he did state to me that the window
22 would not go the whole way down.
Q
And he said that in a clear manner, agree?
His voice was not slurred.
A
Q
,
It was not slurred. Okay. Now, dealing with
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1 his car, he also told you about the interior dome light that
2 wasn't working. He couldn't see in his car except fOl' the
3 flashlight you had, agree?
4 A Agree.
5 Q Now, you would agree with me, would you not,
6 that some people get nervous when a police officer stops
7 them,?
8
9
A
Q
Oh, yes.
All right. In fact, sir, he did provide you
10 his registration, agree?
11 A Agree.
12 Q And he did provide you the license, right?
13
14
A
Q
Correct.
And he provided that to'you in a relatively
15 reasonable period of time, agree?
16 A Under that question, yes, I would have to
17 agree.
18 Q All right. And you didn't do - - number one
19 is the fact that he couldn't do a one leg stand -- well, in
20 fact, he never said he -- he basically said because of his
21 injuries he didn't think he could do it, agree?
22 A He felt he could not successfully complete
23 that test.
24
25
Q
So the reason that he was asked to do the
breath or blood test -- or the reason he was arrested
he
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.1 was arrested though, agree?
A
Agree.
3 Q And then he was asked, after the arrest, to
4 take a breath or a blood te~t, agree?
5
A
Agree.
6 Q And that basis of asking him to take the
7 breath or blood test was his field sobriety tests, agree?
8
9
10 agree?
11 A Agree.
12 Q Because the judge concluded that there was no
13 reasonable basis to have ar.rested him, agree?
14
15
A
Agree.
Q
And the Dur was dismissed at the prelim.,
A
Q
Agree.
My client was very honest with you. When you
16 smelled the odor of alcohol he said, yes, I had a couple of
17 drinks, agree?
18
19
A
Q
Agree.
Now, at the intersection where he went
20 through the red light there was no oncoming traffic there,
21 agree?
22
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Q
Yeah, agree. r agree.
In fact, he came to the bottleneck, stopped,
24 and then went through the red light, agree?
25 A No,' he did not stop.
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Q
AU right. Now, when you were observing his
2 vehicle, sir, isn't it true that his vehicle was never on
3 Third Street?
4
A Pardon me?
Q My client - - you said you observed him go
down Market. He was never on Third Street?
A No, r believe I testified I originally saw
him on South Third Street and then onto Market, and yes, he
was on South Third Street.
5
6
7
8
9
10
Q
Okay. Now, how much time did you actually
11 observe my client's vehicle as it drove passed your vehicle?
12
A
A few seconds.
13
Q
Okay. You never charged my client with
14 driving too fast for conditions, agree?
1.5
A
Agree.
You never charged him with careless driving
16
Q
17 for the way he drove passed, agree?
18
A
Agrae.
At any time, sir -- now, you go through that
19
Q
20 bottleneck. This is important. When you go through the
21 bottleneck it takes a wide sweeping turn, agrea?
22
A
Agree.
23
Q
He wasn't speeding through there, agree?
I
24
A
That I could tell, no.
25
Q
He never crossed over that line there as
30
40
1
2
3
4
5,
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
~ "~.,
--
weIl, isn't that true?
A Are you referring to the center line?
Q That center dividing line?
A I believe as he went through he did cross
over the center line.
o You believe?
A I would have to say yes.
o You would have to say yes. Did you document
that anywhere, that that supposedly occurred?
A No, I don't believe I did.
o It's just as possible, sir, that didn't
occur, just as you were mistaken in your testimony about
what my client said about his injury, as anything else,
agree?
A I would have to disagree with that.
o You would disagree with that?
A Yes.
Q Okay. Now, even if that occurred, you've
seen people that takes really narrow turns in there.
Even if that occurred, that happens probably, from what
you've seen in traffic, quite a bit through there, agree?
A Agree.
o All right. My client's vehicle, when you did
see it driving, was not weaving within its lane at any timel
isn't that true?
31
41
"""'"
,....<.-
1
A That is true.
Q And at no time, sir, did it ever go over any
white fog line that demarcates that road, agree?
A Agree.
Q Okay. It's also fair to say, sir, he did
give you that license and registration within about one
minute, agree?
A I would say one to two minutes.
Q But not two to three minutes, agree?
A I wasn't timing him. Off the top of my head
2
3
4
5
6
7
8
9
10
11 it could be anywhere
12
So it could have been as low as a minute?
Q
13
THE COURT: Let him finish the question.
MR. LAUER: I'm sorry, Your Honor.
THE WITNESS: I wasn't timing him. It could
be I would " it was than a minute. Maybe less
- - say more
than four, if you want a time frame.
BY MR. LAUER:
14
15
16
17
18
19
All right.
Q
A
He did pass his license a couple times before
20
21 he was able to give it to me.
22
And you've seen people do that before,
Q
23 haven't you?
24
A
Once or twice previously.
Some people could do that because they were
25
Q
32
Lt ~
..
1 nervous and not impaired, agree?
2 A Agree,
3 Q E:spec.tally if their dome light wasn't on
4 inside of the car, agree?
5 A Well, I believe I provided him with
6 sufficient light to see.
7 Q And you were the one who requested my client
8 to submit to the intoxilyzer test, agree?
9
10
11
;12
13
14 BY MR. KABUSK:
15 Q Officer Hair, you first saw the motorist
16 going at a high rate of speed, correct?
17 A Correct.
18 Q And he ran two red lights, correct?
19 . A Correct,
20 Q And this happened at 2: 15 in the morning?
21 A Correct.
22 Q And when you stopped him you testified you
23 smelled an odor of alcohol, correct?
24 A Correct. Intoxicating beverage, correct.
25 Q And you testified that he fumbled with
A Agree,
MR. LAUE:R I No further questions.
"
THE: COURT I I<edirect.
MR. l<ABUSK I Yes, Your Honor.
REDIRECT EXAMINATION
33
Y.3
.....
"'.
,
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A
Q
A.
1 finding his documents?
MR. LAUER I Objection. Asked and answered.
THE COURT I Overruled.
6 admitted that he had been drinking?
And then you testified that the motorist
5
7
8
Correct.
And then you had a partner with you that
9 evening, Officer Ambr.ose, who conducted several tests. Did
10 you confer with Officer Ambrose regarding the motorist?
11
12
13
14
15
16
17
18
19 other factors?
20
21
22
23
24
At which time?
After the field sobriety tests?
Yes.
And after that did you come to a conclusion?
Yes.
And what was that?
That he was under the influeh~e of alcohol.
JUijt on the field sobriety teat or all the
All the factors combined.
And then on those factors, what did you do?
As far as after the test, you mean?
In regard to this proceeding?
We placed him under arrest, advised him he
25 was under arrest for DUI -- a suspected DUI.
34
YlI
. , .'. .....,.... ~4_..
, ' .
2
3
4 BY MR. KABUSK:
,...
,-...
'35
1-/.5
Q
A
on one side.
Q
A
Q
road, agree?
A
Q
made his turns he used his turn signalsl isn't that true?
A Yes.
Q When he's going up that road he wasn't going,
at a high rate of speed, agree?
A No. That was after I've gotten behind him.
Q All right. He drove his vehicle without
"'.'"
1 going over any center line or any white fog line up that
2 road, agree?
3 A Agree.
4 Q He drove his vehicle carefully, agree?
5 A Agree.
6 Q Okay. When you activated your Lights to pull
7 him over, he pulled his vehicle over safely, agree?
8 A Yeah, after traveling some distance after I
9 turned them on, yes.
10 MR. LAUER I No further questions.
11 THE COURT: You may step down. Anything
12 else?
13 MR. KABUSKI That is all the direct evidence
14 the Commonwealth offers. The Commonwealth rests.
15 THE COURT I So you're resting?
16 MR. KABUSK I Yes, Your Honor.
17 THE COURT I Okay. Mr. Lauer.
18 MR. LAUER: The Court's indulgence. Your
19 Honor, the defense would rest. We have nothing.
20 THE COURT: I'm going to take a ten minute
21 recess to read the cases, and I'll come back and announce my
22 decision.
23 MR. LAUER: Judge, I have one case I would
24 like to get from my office and get up here in ten minutes,
25 if I could. It's a very important case.
36
'-f~
,.'.'"'Ill
1 '1'I-IE COUR'rt If you get it to me in my
2 chambers before I get back on the bench I will read it, Mr,
3 Lauer.
4 MR. LAUER: Yes, Your Honor.
5 THE COURT; We'll take a ten minute recess.
6 We'll reconvene at 10t20.
7 ,(Whereupon, a recess was taken at 10 :10 a.m.)
8 AFTER RECESS
9 THE COURTt Did you gentlemen have a chance
10 to read each other's cases?
11 MR. KABUSKt He cited me one, Your Honor.
12 No, I --
13 THE COURT: Are you familiar with DiPaolo,
14 the Commonwealth Department of Transportation 700 A.2d 569?
15 In that case the Court found specifically that the defendant
16 passed the field sobriety tests, and so all they had was the
17 field sobriety tests and an odor of alcohol, and the Common
18 Pleas Court upheld the appeal dismissing the suspension and
19 reinstated the license.
20 However, in the current case I cannot find as
21 a fact that the defendant passed the field sobriety tests.
22 There was no evidence in the record that he passed those,
23 field sobriety tests. What I have found as a fact is that
24 the defendant was observed traveling at a high rate of
25 speed. That the defendant ran two red lights, albeit at one
37
'17
,-
~...,
1 intersection, and crossed the center line at the
2 intersection.
3 That when stopped the officer noticed an odor
4 of alcohol, and the defendant fumbled through his wallet
5 passing his license at least a couple of times. The
6 defendant admitted to drinking a couple beers. This officer
7 was not trained in the field sobriety tests. He conferred
8 with another officer who administered those tests, and
9 determined that there was probable cause to arrest.
10 On that basis, and under the Vinanski case, I
11 find that the four elements were there. Vinanski doel!l not
12 require that the officer believe that the defendant was
13 driving while intoxicated, but only that he operated a motor
14 vehicle under the influence of alcohol. He was arrested for
15 that.
16 He was asked to submit to a chemical test,
17 refused to do so, and waR warned that refusing the test
18 would result in a license suspension. I find all of these
19 elements to be here in this case, and on that basis I will
20 dismiss the appeal and affirm the suspension of the license.
'21 Well presented, gentlemen. Thank you.
2:2 MR. LAUER: Thank you, Judge.
23 (Whereupon, the following Order of Court was
24 entered: )
25 AND NOW, this 26th day of January, 1998,
38
48
.' -....-- , . . ~__ 1.~~"7. .:: . ~ "
---
,-..
1 after hearing on this matter and review of the case law
2 presented by counsel, it is the order of this Court that the
3 Appellant's appeal from suspension of operator's privilege
4 is dismissed, and the Commonwealth Department of
5 Transportation's action in suspending Defendant's license is
6 af firmed.
7 (End of order,)
8
THE COURT: Is that a suf f icient order?
9
MR. KABUSKI That's correct, Your Honor.
10 Yes, it is.
11
MR. LAUER: Thank you, Your Honor.
(Whereupon, the proceedings concluded at 10:33 a.m.)
12
13
14
15
16
'I
,
17
18
"
19
20
"
21
22
23
24,
25
39
t./9
. " . ' I .........-.......
"""
CERTIFlqATION
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.
"
/IZ~cA(j/j A .-J~'AK~2A
chele A. Lippy . r '-)
Official Court Reporter c::7
,
--~-------------------------------
The foregoing record of the proceedings on the hearing
of the within matter is hereby approved and directed to be
filed.
J./'f I ,~
Date
Guido, J.
.
40
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PATRICK F. LAUER, JR.
Attorney at Low
2108 Mmel SI...el
Allee Building
Camp 11111. PA 17011
. m:)7M-1800
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COMMONWEALTH OF PENNSYLVANIA, I
DEPARTMENT OF TRANSPORTATION, I
aUREAU OF DRIVER LICENSING, I
Appellee I
v. I
IN THE COURT OF' COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKE'r NO: 97~6273 CIV!!, TERM
.
.
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION APPEAL
ORDER FOR TRANSCRIPT
A Notice of Appeal havlng been filed in the matter, the
official court reporter is hereby ordered to produce, certify and
file the
transcrlpt in this matter in conformity with Rule 1922 of
~/~,/t;~.
e.
the Pennsylvania Rules of Appellate Proc
J.
5~
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"
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COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
V.
DALE STANLEY BARDER
~,
I
I
I
I
I
I
I
I
I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-6273 ~ TERM
ORDER OF COUAl!
AND NOW, FEBRUARY 23, 1998, in accordance with Rule
1925(b) of the Rules of Appellate Procedure, the defendant having
filed a notice of appeal, the appellant is directed to forthwith
file of record and serve upon the undersigned a concise statement
of the matters complained of on appeal.
\'
; , .."
y
,.(/. ".., .. .'
"
'_..i
District Attorney's Office
Department of Transportation
Patrick F. Lauer, Jr., Esquire
Jeanne B. Wigbels, Esquire
For the Defendant
:sld
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IN ..-IE COMMONWEALTH COURT OF p....mSYLVANIA
NOTICE OF DOCKETING APPEAL
Docke~ No: 0574 C,D. 1998 Filed Date: 02/20/98
ReI BARBER v. DEPARTMENT OF TRANSPORTATION
Lower Court No.: 97-6273Civ
,-
A Notice of Appeal, a copy of which is enclosed, from an order of
your court has been docketed in the Commonwealth Court of Pennsylvania.
The docket number in the Commonwealth Court is endorsed on this notice.
The Commonwealth Court docket number must be on all correspondence
and documents filed with the Court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure,
the Notice of Appeal has the effect of directing the Court to transmit
th8 c8rtified record in the matter to the Prothonotary of the
Commonwealth Court.
The complete record, including the opinion of the trial judge,
should be forwarded to the Commonwealth Court within forty (40) days
of the date of filing of the Notice of Appeal, Do not transmit a
partial record.
Pa, R.A.P. 1921 to 1933 provides the standards for preparation,
certification and transmission of the record.
The address to which the Court is to transmit the record is set
forth on page 2 of this notice.
NOTICE TO COUnSEL
A copy of this notice is being sent to all parties or counsel
indicated on the proof of service accompanying the Notice of Appeal.
The appearance of all counsel has been entered on the record in the
Commonwealth Court, Counsel has thirty (30) days from the date of
filing of the Notice of Appeal to file a praecipe to withdraw their
appearance pursuant to Pa. R.A,P. 907(b).
Appellant or Appellant's attorney should review the re~ord of the
trial court, in order to insure that it is complete, prior to
certification to this Court. (Note: A copy of the Zoning Ordinance
must accompany records in Zoning Appeal cases) .
The addresses to which you are to transmit documents to this Court
are set forth on Page 2 of this Notice.
If you have special needs, please contact this court in writing as
soon as possible.
Lower Court Judge: Honorable Edward E. Guido
Attorney: Jeanne B. Wigbels
Attorney: George H. Kabusk
Notices Exit: 02/25/98 Prothonotary
57
iF"''''' hI
COMMONWEAI,TH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
v.
',~'!""
j '. ..,. '.'.'
~57/-J'L ir/;;tf
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO: 97-6273 CIVIL TERM
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION APPEAL
NOTICE Oli' APPEAL
Notice is hereby given that Dale Stanley Barber, Appellant in
the above-captioned license suspension action, hereby appeals to
the Conunonwealth Court of Pennsylvania from the attached Order
entered in this matter on the 26th day of January, 1998. This
Order has been entered into the docket as evidenced by the attached
copy of the docket entries.
;
"
-
Respectfully Submitted:
.
e B. Wigbels, E quire
Market Street/Aztec Building
Camp Hill, PA 17011-4706
Phone: (717) 763-1800
PA Supreme Ct. I.D. No. 68735
ATTORNEY FOR APPELLANT
DATED:
2//7/r'1
F"'''''' -, -r'C,IRO
TF!U~ Ce:r~Y ,,'.NI. ~1t:_ I
In il)~\Uil,)r:'/ \~h>1r(l:;1 I n;~"G ,,'11'; :\I',t my 114lf1d
.-iiO t:i11i.x:"1 c,~ '.}(1;d '~~r~ ;jt/Car~~~k11 ~., '
rlil - . ,/Y'('~~y (,i ::r.;,.~ '".~,}g~
':!l1 ,K ~
" PratMnot3l'f
I
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I
58
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
v.
,.
~
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
DALE STANLEY BARBER,
Appellant
I
I
I
I
DOCKET NOI 97-6273
LICENSE SUSPENSION APPEAL
AND NOW, this
ORDBR OF COURT
day of
, 199B, upon
consideration of the within APPELLANT'S PETITION FOR STAY PENDING
APPEAL, it is hereby ordered that the suspension of Appellant's
driving privileges is stayed pending resolution of his appeal to
the Commonwealth Court.
BY THE COURT I
J.
5~
COMMONWEAI,TH OF PENNSYLVANIA, l
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
v.
IN 'l'!lE COURT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
DOCKET NOl 97-6273
DAI,E STANLEY BARBER,
Appellant
APPELLANT'S PETITION FOR STAY PENDING APPEAL PURSUANT TO
RULE 1732 OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE
LICENSE SUSPENSION APPEAL
AND NOW comes the Appellant, Dale Stanley Barber, by and
through his attorney, Jeanne B. Wigbels, Esquire, and respectfully
represents the following in support of this Petitionl
I. PROCEDURAL BACKGROUND
I. Appellant received a notice from the Pennsylvania
Department of Transportation dated October 29, 1997, which notified
him that effective December 3, 1997, his driving privilege was
being suspended for a pericd of one year as a result of his
violation of Section l547 of the Pennsylvania Vehicle Code,
Chemical Test Refusal on September 27, 1997. See Exhibit A.
2. Appellant filed a timely appeal from the suspension of his
driving privilege on November l7, 1997. See Exhibit B.
I
I
I was
I
3. On January 26, 1998, a license suspension appaal hearing
held before the Honorable Edward E. Guido, Judge of the Court
60
of Common Pleas of Cumberland County at which time Judge Guido
, dismissed the appeal and affirmed suspension of Appellant's driving
privileges. See Exhibit C.
4. Appellant filed a timely Notice of Appeal to the
Commonwealth Court on February 20, 1998. See Exhibit D.
5. Appellant received a notice from the Pennsylvania
-~
,
Department of Transportation dated February 25, 199B which notified
him that effective April 1, 1998, at 12:01 a.m., his driving
privilege is being suspended for a period of one year as a result
of his violation of Section l547 of the Pennsylvania Vehicle Code,
Chemical Test Refusal on September 27, 1998. See Exhibit E.
II. FACTUAL EACKGROUND
6. paragra;1hs one (1) through five (5) are incorporated
herein by reference as though fully set forth.
7. Appellant was accused of having refused to submit to a
chemical test of his breath.
8. At Appell.ant' s License Suspension Appeal hearing on
January 26, 1998, before the Honorable Edward E. Guido, Judge of
I the Cumberland County Court of Common Pleas, Officer Danielllair's
testimony supported the conclusion that Appellant had successfully
I
I
performed field sobriety testa.
III. APPLICAELE LEGAL STANDARD FOR ISSUANCE OF A STAY
9. Paragraphs one (1) through eight (8) are incorporated
herein by reference as though fully set forth.
10. A stay or supersedeas is warranted if (1) the Petitioner
makes a strong showing that he is likely to prevail on the merits;
(2) The Petitioner has shown that without the requested relief, he
will suffer irreparable injury 1 (3) The issuance of a atay will
not substantially harm other interested parties in the proceedings;
(4) The issuance of a stay will not adversely affect the public
interest. Pennsylvania Public \ltilitv Commission v. Process Gas
Consumers Group, 467 A.2d B05 (Pa. 1983), citing the cr.t.teria set
61
\
forth in Virqinia Petroleum Jobbers Association v. Federal Power
Commission, 259 F.2d 92l (D.C.cir.l958).
11. When confronted with a case in which the other three
factors strongly favor interim relief, the court may exercise its
diecreti~n to grant a stay if the petitioner has made a substantial
case on the merits. Process Gas, supra, adopting refinement of
Virqinia ~obbers standard set forth in Washinqton Metropolitan Area
Transit Commission v. Holiday Tours. ...IlliL..., 559 F.2d 841
(D.C.Cir.1977) .
A. APPELLANT IS LIKELY TO PREVAIL ON THE MERIT~
12. Paragraphs one (I) through eleven (11) are incorporated
herein by reference as though fully set forth.
13. According to DiPaolo v. D.O.T., 700 A.2d 569
(Pa.Cmwlth.1996), despite the odor of alcohol, an officer lacks
reasonable grounds to believe a motorist is driving under the
influence of alcohol if coordination/field sobriety tests are
performed successfully.
l4. In this case, the testimony of Officer Hair support~ the
conclusion that Appellant successfully completed the field sobriety
tests. Therefore, Appellant is likely to prevail on the merits.
B. APPELLANT WILL SUFFER IRREPARABLE INJURY WITHOUT A STAY
IS. Paragraphs one (I) through fourteen (l4) are incorporated
herein by reference as though fully set forth.
16. If a stay is not granted, Appellant will have served a
substantial term of suspension prior to a decision on the merits of
his appeal.
6;{
17. If Appellant is successful on appeal, his license would
have been erroneously suapended for a substantial period of time.
c. THE ISSUANCE OF A STAY WILL NOT SUI\STANTIALLY HARM OTUIlli
INTERESTED PARTIES IN THE PROCEEDINGS
16. Paragraph a one (l) through seventeen (17) are
incorporated herein by reference aa through fully aet forth.
19. The isauance of a atay will not substantially effect
anyone except Appellant. The only other interested party is the
Department of Transportation which will not be prejudiced or harmed
by iasuance of a atay.
D. THE ISSUAN~E OF A STAY WILL NOT ADVERSELY AFFECT THE PUBLIC
20. Paragraph one (1) through nineteen (19) are incorporated
herein by reference ao though fully set forth.
21. The isauance of a stay will have absolutely no adverse
effect on the public. The Appellant haa been driving aafely since
the date of the alleged refuaal and there is no evidence he was
"
driving unsafely on the date of the alleged refusal and there is no
reason to believe he .tlill abuse his driving privilege pending the
outcome of his appeal.
WHEREFORE, the Appellant respectfully requeats to grant a stay
of the auspension of his driving privileges pending a reaolutlon of
this appeal to the Commonwealth Court.
\
,.....,
RespeotfuJ.ly submitted I
DATED I
~([( (1~
A~
Je nn~ B. Wigbels, Esquire
Law Offioes of Patriok F. Lauer, Jr.
2109 Market Street, Azteo Building
Camp Hill, Pennsylvania 17011-4706
PA Supreme Ct. ID No. 68735
Phonel (717) 763-l800
ATTORNEY FOR PETITIONER/APPELLANT
"
bY
I.."
.^
COMMONWEALTH OF PENNSYLVANIA, I
DEPARTMENT OF TRANSPORTATION, I
BUREAU OF DRIVER LICENSING, I
Appellee I
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
DOCKET NOI 97-6273
I,ICENSE SUSPENSION APPEAL
DALE STANLEY BARBER,
Appellant
ATTORNEY VERIFICATION
Undersigned counsel, Jeanne B. Wigbels, Esquire, hereby
verifies and states thatl
1. She is the attorney for Dale Stanley Barber, Petitioner.
2. She is authorized to make this verification 011 his behalf;
3. The facts set forth in the foregoing Petition are known to her
and not necessarily to her client;
4. The facts set forth in the foregoing Petition are true and
correct to the best of her knowledge, information and belief.
5. She is aware that false statements herein are made subject to
the penalties of 18 Pa. C.S. 4904, relating to unsworn
falsification to authorities.
BYI
------
'--
-
DATED I
1 (11/11
e B. Wigbels, Esquire
La Offices of Patrick F. Lauer, Jr.
21 8 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
PA Supreme Ct. 10 No. 68735
Phonel (717) 763-1800
ATTORNEY FOR PETITIONER/APPELLANT
II
105
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND, PENNSYLVANIA
DOCKET NO: 97-6273
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I, Jeanne B. Wigbels, Esquire, hereby certify that a true and
correct copy of the foregoing PETITION FOR STAY PENDING APPEAL was
sent to the following counsel of record by placing a copy of same
in the United States mail, postage prepaid, at Camp Hill,
Pennsylvania, addressed as follows:
George H. Kabusk, Assistant Counsel
PA Department of Transportation
Bureau of Drivers Licensing
Office of Chief Counsel
1101 S. Front Street, 3rd Floor
Harrisburg, PA l7104-2516
BY:
;/
B. Wigbels, Esquire
Law 0 fices of Patrick F. Lauer, Jr.
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
PA Supreme Ct. 10 No. 68735
Phone: (717) 763-1800
ATTORNEY FOR PETITIONER/APPELLANT
-_//
DATED:
3ld1!
bb
"
IlVUIDI'I'
A
,
, "''').
COMMONWE4LTH OF PENNSVLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 171Z3
OCTOBER 29, 1997
---.
DALr STANLrV BARBER
533 N rNOLA DR
972956117224785 001
10/22/19'17
16220513
07/03/1954
ENOLA PA
L7025
Dear Motorist I
As a result of your violation of Section 1547 of the Ve-
hicle Code, CHEMICAL TEST REFUSAL on 09/27/1997, your driving
privilege is being SUSPENDED for a period of 1 YEAR(S).
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 (camora card) in your possession
no later than the effective date listed. If yoU cannot com-
ply with the requirements stated above, you are required tQ
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 1571(0)(4) of the Vehicle Code.
"
Although the law mandates that your driving priVilege is un-
der suspension even if you dQ not surrender your license,
Credit will not begin until all current driver's license'
product(s), 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 DAVS CONTACT THE DEPARTMENT IMMEDIATELV. OTHERWISE,
YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION.
The effective data of suspansion is 12/03/1997, 12:01 a.m.
......................".......***.*....****.*..******.***.*..*....**
IWARNING: If YOU are convicted for driving while your license is I
Isuspended, the penalties will bel not less than 90 days imprison-I
Iment and a 1,000 fine and an additional 1 year suspension. I
.*.*.*.*..*.*.....*.**.*****..*.*.*...*.****..*-*.**...**...**..*..-
68
-\
"
972956117224785
........
Please see the enclosed application for restoration fe~ in-
formation.
Vou have the right to appeal the Department's action to the
Court of Common Pleas (Civil Division) within 30 days of the
mail date (OCTOBER 29, 1997) of this notice. PLEASE NOTE
that this Civil Appeal is in addition to any appeal YOU have
to file from the criminal conviction.
THE APPEAL MUST BE SENT BY CERTIFIED MAIL TO:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR, RIVERFRONT OFFICE CENTER
HARRIS8URG, PA. 17104
Sincerely,
~~,~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENS~/DL-16LC/TOI
Department of Transportation
Bureau of Driver Licensino
P.O. Box 68693
Harrisburg, PA 17106-8693
INFORMATION (7100
IN STATE
OUT-OF-STATE
TOO IN STATE
TOO OUT-OF-STATE
AM TO 9100 PM)
1-800-932-4600
717-391-6190
1-800 -228-0676
717-391-6191
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EXHIBIT B
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COMMONWEALTH OF PBNNSYLVANIA I IN THB COURT OF COMMON Pl:.BAS OF
PBNNSYLVANIA DBPARTMBNT I CUMBBRLAND COUNTY, PBNNSYLVANIA
OF TRANSPORTATION, I
BUREAU OF DRI'lBR LICBNSING, I
Appellee . NO. Q7-' &:;)73
.
v. .
. LICENSE SUSPBNSION
DALB STANLEY BARBER, . loP PEAL
Appellant I
AND NOW, this
ORDER OF COURT
day of
1997, upon
consideration of this APPEAL FROM SUSPENSION OF OPBRATOR'S
PRIVILEGE, it is hereby Ordered that a Bearing on the matter shall
be held on
day of
1997, at __
of the Cumberland County
o'clock ___' m. in Courtroom No.
Courthouse.
A supJ'rsedeas is granted pursuant to Vehicle Code Section
1550(b)(1) until such time that this honorable oourt resolves this
appeal.
BY THE COURT.
J.
Distributionl
-PA Dept. of Transportation, Office of Chief 'Counsel, Room 103,
Transportation & Safety Building, Harrisburg, PA 17120
-Patriok F. Lauer, Jr., Bsq., 2108 Market St., Camp Hill, Pa 17011
'7/
"
COMMONWEALTH OF PBNNSYLVANIA
PBNNSYLVANIA DBPARTHBNT
OF TRANSPORTATION,
BURBAU OF DRIVER LICBNSING,
Appellee
v.
DALB STANLEY BARBER,
Appellant
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IN THB COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LICENSE SUSPENSIoij,~,:, ~,
APPEAL ,. U z,.
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APl'BAL PROM SUSPENSION OF Ol'BRATOR' S PRIVI~ r.;
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AND NOW comes the Appellant, Dale Stanley Barber, by and
through his attorney, Patrick F. Lauer, Jr., Esquire, and
respectfully avera the followingl
1. Appellant resides at 533 North Enola Drive, Enola,
Cumberland County, pennaylvania 17025.
2.' The Appellant received a Notice dated October 29, 1997,
that as a result of hia alleged violation of Vehicle Code Section
1547, ChemIoal Test Refuaal, his driving privilege was being
suspended for a period of one year, effective auspflnaion date
December 3, 1997, at l2l0l a.m. A true and correct copy of the
Notice is attaohed as Exhibit "A".
3. The Appellant submits that the police officer lacked a
reasonable basis to request Appellant to submit to a chemical test.
4. The Appellant submits that he did not intelligently and
voluntarily refuse to submit to a chemical test.
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WHBREFORB, your Appellant respeotfully requests your
Honorable Court to sohedule an evidentiary hearing on the matter.
Respeotfully submitted,
...ll.I!.M Jr., '.quiro
2108 Market street, Azteo Building
Camp Hill, Pennsylvania 17011-4706
ID' 46430 Tel. (717) 763-1800
V\ ~ \ \ ~q.1.
Datel
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COMMONWEALTH OF PBNNSYLVANIA I
PBNNSYLVANIA DBPARTMENT I
OF TRANSPORTATION, I
BUREAU OF DRIVER LICENSING, I
Appellee :
I
V. I
I
DALB STANLEY BARBER, I
Appellant I
IN THB COURT OF COMMON PLBAS OP
CUMBBRLAND COUNTY, PENNSYLVANIA
NO:
LICENSE SUSPENSION
APPEAL
ATTORNEY VERIFICATION
The undersigned, Patrick F. Lauer, Jr., Esquire, hereby
verifies and states that:
1. He is the attorney for the Appellant, Dale Stanley Barber;
2. He is authorized to make this verification on his behalf;
3. The facts set forth in the foregoing Appeal are known to him
and not necessarily to his client;
4. The facts set forth in the foregoing Appeal are true and
correct to the best of his knowledge, information and belief; and
5. He is aware that false statements herein are made subject to
the penalties of 16 Pa. C.S. 4904, relating to unsworn
falsification to authorities.
Respectfully submitt.ed,
Date:
\\'\\.'1..1-
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COMMONWEALTH OF PBNNSYLVANIA I
PBNNSYLVANIA OEPARTMENT I
OF TRANSPORTATION, I
BURBAU OF DRIVBR LICBNSING, I
Appellee I
I
IN THB COURT OF COMMON PLBAS OF
CUMBBRLAND COUNTY, PENNSYLVANIA
NOI
v.
DALB STANLBY BARBBR,
Appellant
I LICBNSE SUSPBNSION
I APPBAL
I
CERTIFICA'rB OF SERVICE
I hereby certify that I am this day serving a copy of the
foregoing Appeal upon the person and ill the manner indicated
below, which service satisfieo the requirements ot the
Pennsylvania RuleD of Civil Procedure., '.'y depositing a copy of the
Dame in the United States Camp Hill, ~ennDylvania, through first
class certified mail, prepaid and addressed as follows I
Pennsylvania Oepartment of Transportation
Office of Cnief Counsel
Third Floor, Riverfront Office Center
HarriSburg, PA 17104
Respectfully 'submitted,
Datel
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. uer, Jr., Esquire
2 08 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
IDi 46430 Tel. (717) 763-1800
75
........
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IXHIIIT A
'76
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT UF TRANSPORTATION
Bureau of Driver Licansing
Harrisburg, PA 17123
OCTOBER 29, 1997
ENOL A PA
17025
~72~5b117224785 001
10/22/1~~7
lb220513
07/03/1%4
DALE STANLEy BARBER
533 N ENOL A DR
Dllar Motorist I
As a result of your violation of Section 1547 of the Ve-
hicle Code, CHEMICAL TEST REFUSAL on 09/27/1997, your driving
privilege is being SUSPENDED for a period of 1 YEAR(S).
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 (camera card) in your possession
no later than the effective date listed. If you cannot com-
ply with the requirements ntated 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
r
for prosecution under SECTION 1571(a)(4) 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 begin until all current driver' 5 license
product(s), 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 12/03/1997, 12:01 a.m.
********************************************************************
IWARNING. If yeu are convicted for driving while your license is I
Isuspended, the penalties will be: not less than 90 days imprison~1
Iment and a 1,000 fine and an additional 1 year suspension. I
********************************************************************
7'7
972956117224765
Please see the enclosed application for restoration fee in-
formation.
l',:\\.
You have the right to appeal the Department's action to the
Court of Common Pleas (Civil Division) within 30 days of the
mail date (OCTOBER 29, 1997> of this notice. PLEASE NOTe
that this Civil Appeal is in addition to any appeal yOU have
to file from the criminal conviction.
THE APPEAL MUST BE SENT BY CERTIFIED MAIL TO:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
THIRD FLOOR, RIVERFRONT OFFICE CENTER
HARRISBURG, PA. 17104
Sincerely,
~~\~~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
=~~'"
SEND FEE/LICENS~/DL-16LC/TOI
Department of Transportation
Bureau of Driver Licensing
P.O. Box 66693
Harrisburg, PA 17106-8693
INFORMATION (7100
IN STATE
OUT-OF-STATE
TDD IN STATE
TDD OUT-OF-STATE
AM TO 9100 PM)
1-800-932-4600
717-391-6190
1-800-228-0676
717-391-6191
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Exhibit Cl
COMMONWEALTH OF
PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97-6273 CIVIL TERM
V.
DALE STANLEY BARBER,
Appellant
LICENSE SUSPENSION APPEAL
IN RE: APPEAL OF LICENSE SUSPENSION
ORDER OF COURT
AND NOW, this 26th day of January, 1998, after
hearing on this matter and review of the case law presented by
counsel, it is the order of this Court that the Appell~~t's
appeal from suspension of operator's privilege is dismissed, and
the Commonwealth Department of Transportation's action in
suspending Defendant's license is affirmed.
By
J.
George H. Kabusk, Esquire
Office of Chief Counsel
1101 South Front Street
3rd Floor
Harrisburg, PA 17104-2516
For Appellee
~atrick F. Lauer, Jr.,
~ ~108 Market Street
Aztec Building
Camp Hill, PA 17011
For Appellant
Esquire
!nIf[ :~r-,rnirrcGil
JAN ? 3 1998 !~
U~L:JU U L:JdlJ
mal
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Exhibit D
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COMMONWEALTH OF PBNNSYLVANIA, :
DBPARTMENT OF TRANSPORTATION, I
BUREAU OF DRIVER LICENSING, I
Appellee I
IN THB COURT OF COMMON PLBAS OF
CUMBBRLAND COUNTY, PBNNSYLVANIA
v.
: DOCKET NO: 97-6273 CIVIL TERM
DALE STANLEY BARBBR,
Appellant
: LICENSE SUSPENSION APPEAL
:
NOTICB Ol" APPBAL
Not:,ce is hereby given that Dale Stanley Barber, Appellant in
the above-captioned license suspension action, hereby appeals to
the Commonwealth Court of Pennsylvania from the attached Order
entered i.n this matter on the 26th day of January, 1998. This
Order has been entered into the docket as evidenced by the attached
copy of the docket entries.
Respectfully Submitted:
DATBD:
2/11/11
Je 6 B. Wi~be1s~>f{
21 8 Market Street/Aztec Building
Camp Hill, PA 17011-4706
Phonel (717) 763-1800
PA Supreme Ct. I.D. No. 68735
ATTORNEY FOR APPELLANT
8/
. ~ . I
COMMONWEALTH OF PBNNSYLVANIA,
DBPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICBNSING,
Appellee
v.
DALE STANLEY BARBER,
Appellant
I
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I DOCKET NO I
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CERTIFICATB OF SERVICE
IN THE COURT OF COMMON PLEAS OF
CUMBBRLAND COUNTY, PBNNSYLVANIA
97-6273 CIVIL TERM
LICBNSE SUSPENSION APPEAL
I, Jeanne B., Wigbels, Bsquire, do hereby certify that this
day I served upon the following a true and correct copy of the
NOTICE OF APPEAL filed at the above-reference docket numbr.r by
placing a copy of SaIne in the United States mail at Camp Hill,
Pennsylvania, postage prepaid, and addressed as follows:
The Honorable Edward E. Guido, Judge
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
George H. Kabusk, Assistant Counsel
PA Department of Transportation
Bureau of Drivers Licensing
Office of Chief Counsel
1101 S. Front Street, 3rd Floor
Harrisburg, PA 17104-2516
Michele A. Lippy
Official Court Reporter
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
BYl
.Jt-u/~~
J n6 B. Wigbels, E uir
w Offices of Patrick F. Lauer, Jr.
2108 Market Street, Aztec Building
Camp lIi11, Pennsylvania 17011-4706
PA Supreme Ct. ID No. 68735
Phonel (7171 763-1800
ATTORNBY FOR APPELLANT
DATED I
Z/;f If?
8~
PYS510
r'~berland County prothonota "s Office Page
Civil Caso Inquiry
1997-06273 PENNSYLVMuA COMMONWEALTH OF (VS) BARtit:R DALE STANLEY
Reference No..: Filed........:
CaQe Type. ....: APPEAL - LICENSE SUSP Time. .!..,...:
JUdgment.!.... I .00 Execut Qn Date
Judge Ass gned: GUIDO EDWARD E Sat/Dis/Gntd. .
Jur~ TriaL.. .
Hi9 er Court 1
Hi er Court 2
**.***.*....**.....*.****..******...*...**.**.*..**...* *.....***.**..**.**...**
General Index Attorney Info
BARBER DALE STANLEY APPELLANT LAUER PATRICK F JR
533 NORTH ENOLA DRIVE
ENOLA PA 17025
PENNSYLVANIA COMMONWEALTH OF
PA DEPT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
RIVERFRONT OF~'ICE CENTER 3 ~'L
HARRISBURG PA 17104
1
11/13/1997
0/00/3Ag~
0/00/0000
APPELLEE
*...***....***.....*..**......*....*.....*.**.....*....**...*........*...*....*.
· Date Entries .
................................................................................
11/13/97 APPEAL FROM SUSPENSION OF DR~VERS LICENSE
11/18/97 ORDER OF COURT - DATED 11/18 97 - IN RE APPEAL FROM SUSPENSION OF
OPERATOR'S PRIVILEGE - HEARI G 1/26198 9:30 AM CR 5 - BY KEVIN A
HESS J FOR EDWARD E GUID9 J - COPIES MAILED l1/l9/97
01/27/98 ORDER OF COURT - DATED 1 26/98 - IN RE APPEAL OF LICENSE SUSPENSION
- DISMISSED - COMMONWEALTH DEPARTMENT OF TRANSPORTATION'S ACTION IN
SUSPENDING DEFENDANT'S LICENSE IS AFFIRMED - BY EDWARD E GUI~O J _
COPIES MAILED 1127198
02/09/98 TRANSCRIPT FILED
...............................**.................****..........................
· Escrow Information *
* Fees & Debits Beo Bal Pvmtsl Ad 1 End Bal *
..............**................*........w......,............~.*.....*..........
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
...........**.......................**..............***.*************......***.w
· End of Case Information .
..**...........***........**.......**.***.....*............**...................
TRUE CO:'". FR<:",,'t\ RE':ORD
In T~Itimo,.,'f v.hcrcc:, IIIU" ur,tJ ,:~ 1',11 hand
nnd the seal of luid Courl al Carlislo, Pa.
This ",;?"<.?,,,,,.. 9dY of~d.""" 19,,g?,
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..."......... ..~jU'n'~,,,,,K,,,~ ,
,/ Prothonotary
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
FEBRUARY 25, 1990
DALE STANLEY BARBER
533 N ENOLA DR
ENOLA PA
17025
"18011"1617807'1381 001
02/18/1"1"18
16220513
07/03/1'154
Dear Motoristl
As a result of 1I0ur violation of Section 1547 of the
Vehicle Code, CHEMICAL TEST REFUSAL on 09/27/1997, 1I0ur
driving ,~rivilege is being SUSPENDED for a period of 1
YEARCS).
i
I,
In order to complll with this sanction 1I0U are reqUired to
return anll current driver's license, learner's permit andlor
temporarll driver's license Ccamera card) in 1I0ur possession
no later than the effective date Usted. If 1I0U cannot
complll with the requirements stated above, yoU are reqUired
to submit a DL16LC Form or a sworn affidavit stating that
yoU are aWal'e of the sanction against your driving priVi-
lege. Failure to comply with this notice shall result in
this Bureau referring this matter to the Pennslllvania State
Police for prosecution under SECTION 1571Ca)C4) of the Ve-
hicle Code.
I
I
I
I
,..'
Although the law mandates that 1I0ur driving priVilege is
under suspension even if 1I0U do not surrender 1I0ur license,
Credit will not begin until all 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 ACKNOWLEDGE-
MENT, 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 04/01/1996, 12:01 a.m.
******************************************************************..
IWARNING: If YOU are convicted for driving while your license is I
Isuspended, the penalties will be: not less than 90 dalls imprison-I
Iment and a 1,000 fine and an additional 1 year suspension. 'I
***.****w***w**x******.~*.***x***********************************...
"-..
85
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SEND FEE/LICENSE/DL-16LC/TOI
Department of Transportation
Bureau of Driver Licensing
P.O. Box 66693
Harrisburg, PA 17106-6693
Sincerell/,
~~,~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
INFORMATION (7:00
IN'STATE
OUT-OF-STATE
TOO IN STATE
TOO OUT-DF-STATE
9i
AM TO 9 I 00 PM)
1-BOO-932-4600
717-391-6190 '
1-BOO-22B-0676
717-391-6191
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COMMONWEALTH OF PENNSYLVANIA I
DEPARTMENT OF TRANSPORTATION I
BUREAU OF DRIVER LICENSING I
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V. I
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DALE STANLEY BARBER I
I
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-6273 CIVIL
CIVIL ACTION - LAW
IN REI PETITION FOR STAY PENDING LICENSE SUSPENSION APPEAL
MEMORANDUM OPINION AND ORDER OF COURT
BEFORE GUIDO. J~
Appellant has asked this Court to stay his driver's license
suspension pending his appeal to the Commonwealth Court of our
orddr dated January 26, 1998. We have reviewed the cases cited
by appellant, specifically Pa. Public Ut!litv Con~ission v.
Process Gas Consumers, 502 Pa. 545, 467 A.2d 605 [1963] and
Dipaolo v. D.O.T., ____ Pa. Commw. ____, 700 A.2d 569 [1997].
For reasons that will be set forth more fully in our opinion to
be filed pursuant to Pa. Rule of Appellate procedure 1925, this
case is distinguishable in many respects from .Dipaolo. There was
much more evidence of driving under the influence in this case
than was present in Dipaolo.
We also take exception with appellant's assertion that the
testimony indicates that he successfully completed the field
sobriety tests. While there was no testimony to indicate that he
failed those tests, there was testimony to indicate that he
performed poorly on those -cests. The only reason that the
officer did not testify that appellant failed the tests was that
87
""
NO. 97-6273 CIVIL
he was not trained to administer those tests. There was,
however, absolutely no testimony \~hatsoever to indicate that the
appellant passed the field sobriety tests. Therefore, on that
ground alone, Dipaolo can be distinguished.
Furthermore, we do not feel that appellant would be entitled
to a supersedeas under the principals of Processed Gas, supra.
Refer to footnote 9 in Commonwealth v. Wolf 534 Pa. 263 632 A.2d
864 (1993).
Therefore, appellant's petition for stay of his operating
privileges pending appeal is DENIED.
AND NOW, this
18~
ORl)ER
day of MARCH, 1998, upon
consideration of appellant's petition for stay of suspension of
his operating privileges pending appeal, said stay is DENIED.
By the
Edward E. Guido, J.
Commonwealth of Pa.
Dept. of Transportation
Patrick F. Lauer, Jr., Esquire
For the Defendant
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF LICENSING
IN THE COURT OF C0MMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DALE BARBER
NO. 97-6273 CIVIL TERM
IN RE: OPINION PURSUANT TO RULE 1925
On October 29, 1997, the Commonwealth Department of
Transportation sent Appellant notice that his driving privileges
would be suspended as a result of his refusal to submit to a
ohemical test of his blood on September 27, 1997, in violation of
Section 1547 of the Vehicle Code. 75 Pa.C.S.A. S 1547. The
suspension was to be effective December 3, 1997. On November 18,
1997, Appellant filed a timely appeal to this Court and a
supersedeas was granted. A hearing was held before us on January
26, 1998. After hearing, the appeal was dismissed and the
license suspension was affirmed. Appellant filed a timely notice
of appeal to the Commonwealth Court. On March 2, 1998, Appellant
filed a concise statement of matters complained of on appeal.
This opinion is written pursuant to Pa. Rule of Appellate
Procedure 1925.
FINDINGS OF FACT
1) On September 27, 1997, at approximately 2:15 a.m. Officers
Hair and Ambrose of the West Shore Regional Police Department
witnessed Appellant driving his pick up truck at a high rate of
speed. (N.T. 5).
2) They proceeded to follow the Appellant and saw him run two
red lights. (N.T. 5).
m
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NO. 97-6273 CIVIL
2
3) Appellant croaaed over the center line at the intersection.
(N.T. 5).
4) The Officers activated their flaehing lights and after a
period of time the Appellant pulled over. (N.T. 5).
5) In the courss of epeaking to the Appellant, Officer Hair
detected the odor of alcohol on his breath. (N.T. 6). In
addition, Appellant's epeech was slurred. (N.T. 14).
6) Appellant admitted to drinking "a couple of beers". (N.T.
6) .
7) Appellant fumbled through his wallet looking for his drivere
license. He passed it eeveral times before finally producing it.
(N.T. 5-6).
8) Officer Hair asked Appellant to etep from the vehicle and
turned him over to Officer Ambrose so that field sobriety teets
could be administered.' (N.T. 6).
9) Appellant swayed during the field sobriety tests. (N.T. 6)
10) Appellant miese~ heel to toe esveral times during the
performance of the walk and turn test.' (N.T. 7).
ll) After conferring with Officer Ambrose, Officer Hair placed
'Officer Hair wae neither trained nor certified to
administer field sobriety teets. Therefore, they were
administered by Officer Ambrose.
'The Court cannot find aa a fact that Appellant failed the
field sobriety tests because findinga of fact 9 and 10 were based
upon the observations of Officer Hair who was not certified to
administer those teste. However, neither can the Court find as a
fact that Appellant passed the tests. For whatever reason,
neither party called Officer Ambrose as a witness.
'10
,~"'1
"'.....
NO. 97-6273 CIVIL
Appellant under a~~est for d~iving under the influence. (N.T.
B) .
12) Appellant was ~ead the "Section 1547 - Chemical Test
Warnings" appearing on Penn D.O. T. form DL-26, which IIpecifically
advised him that his license would be euspended fo~ one year if
he refused to submit to chemical testing of his blood. (N.T. 9 &
Commonwealth Exhibit 1).
13) Appellant was asked to submit to a blood test, which he
refused.
14) Appellant was transported to the booking center and given
the opportunity to submit to a breath test. (N.T. IO).
l5) At the booking center, he was again read the "Section 1547 _
Chemical Test Warnings" before he was afforded the opportunity to
submit to a breathalyzer test. (N.T. IO-ll).
16) Appellant refused to take the breath test at the booking
center. (N.T. 11).
DISCUSSION
To sustain a license suspension under Section 1547 of the
Vehicle Code (75 Pa.C.S.A. S 1547), the Department of
Transportation has the burden of establishing the following four
elements:
1) ,The motorist was arrested for driving under the
influence by a police officer who had reasonable grounds to
believe that he was operating the vehicle while under the
influence of alcohol.
2) The motorist was asked to submit to a chemical test.
3) The moto~iBt refused to do so.
3
I
\
9/
~
NO. 97-~273 CIVIL
4) The motorist was warned that refusing the teat would
reeult in a licenae suapeneion.
See Vinanekv v. Commonwealth Dept, of Transportation, 665 A.2d
860 (pa. Commw, ct. 1995). In the inetant caee, Appellant
challenges the Department'e evidence only in connection with the
first element. He contends that the arreeting Officer did not
have reasonable ground a to believe that Appellant ~Ias under the
influence of alcohol.
The teet for "reasonable grounds" was eet forth in
Department of Transportation v. Dreiebagh, 26 Pa. Commw. 201, 363
A.2d 870 (1976). Ae the Court stated:
[F]or 'reaeonable grounds' to exist, the police officer
obviously need not be correct i.n hie belief that the
motorist had been driving while intoxicated. We are 'dealing
here with the authority to request a pereon to submit to a
chemical teet and not with the admission into evidence of
the result of euch a test. The only valid inquiry on this
issue at the de novo hearing is whether, viewing the facts
and circumstances ae they appear at the time, a reasonable
person in the position of the police officer could have
concluded that the motorist was operating the vehicle and
under the influence of intoxicating liquor.
26 Va. Commw. at 204-205.
Appellant relies on the Commonwealth Court's recent decieion
in DiPaolo v. Com. Dept. of Transportation, 700 A.2d 569 (Pa.
Commw. Ct. 1997). However, since thie case is clearly
dietinguishable, his reliance is misplaced. In DiPaolo there was
no evidence of uneafe or erratic driving, nor was there any
evidenoe of slurred speech or swaying. In addition, the lower
court found as a fact that Mr. DiPaolo had passed the field
sobriety teste. Therefore, the only evidence provided by D.O.T.
4
9~
"',
NO. 97-6273 CIVIL
to Buatain the DiPaolo officer's "reusonable grounds" was the
odor of alcohol.
In the instant case, Officer Hair observed erratic driving,'
slurred apeech, and, the odor of alcohol. He alao witnessed
Appellant fumbling through his wallet, awaying and performing
poorly on the field sobriety testa. As noted above, since
Officer Hair was not certified to administer field sobriety
teate, we are not prepared to conclude, based solely upon his
observations of poor performance, that Appellant failed those
tests. However, this certainly does not mean that Appellant
paased those testa.' The field sobriety tests did not playa role
in our decision that the Officer had reaaonable grounds to
conclude that Appellant was driving while under the influence of
alcohol.' Based upon the numerous other indications of
intoxication established in the record, it is abundantly clear
that the Officer had reasonable grounds to believe that Appellant
wos driving while intoxicated. Not only were the Officer's
actions reasonable, but to have done anything differently would
have amounted to a dereliction of duty.
'As noted above, Appellant was driving at a high rate of
speed, ran two red lights, and crossed the center line.
'Although the Dept. of Transportation chose not to have
Officer Ambrose testify, this did not preclude Appellant's
counsel from calling him as a witnesD.
'Even the DiPaolo court recognized that "tilt is not
necesaary for a motorist to fail a field sobriety teat in order
for a police officer to have reasonable grounds." (citation
omitted) 700 A.2d at 572.
5
'J,3
. .,
. "'.~
,"
NO. 97-6273 CIVIL
March 25, 1998
By the Court,
~
Edward E. Guido, J.
George H. Kabusk, Esquire
Pa. Dept. of Transportation
_ (~.,) Im:;J.id., 4J I.:>t 1/f ,
Jeanne B. Wigbels, Esquire .,.j.6' '
For the Defendant
Isld
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CHEMICAL TESTING WAh"INoa AND REI'OAT Of'
REFUSAL TO SUBMIT TO CHEMICAL TESTlNO AS
AUTHORIZED BY OF THE VEftlCLE CODE
~
SEeTIO 1647
HAM I
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, SECTION 1547. CHEMICAL TESTING WARNINGS '
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\. Pie... be odvlluJd 'he' you 8rlJ flOW undo, arrQIU lor IjllvlllU un,JI,II till) 1I1l1uonco of alcohol or Il cor,lrotled aubl111111tO p'ur.UlInl ,10 .'~,~Vo" '~~3.1, ~f
Iho Vahl"o Codo, a.. \ 00 d
2. I om rOQuQSllnu Inlll you IUJlllnl1 It} II elll)lIll/inl lUl)l ur . ~.-:,,_ ., ,.. ,',__._,..~. (b,Qlllh, bloou or urltll), Ollll:or ehoQIQlIlhe tihemICIJ.IIOII.)
:), It 15 my duly, os II pollctt olllen" 10 lulorlll Yllll 111111 II yuu rlJlutllJ In r11lb1ll1l10 Iho r.h''''lIcnl losl YOLJt oporAllnl1 p,'"U"V8 will be aUllpcnued tor a'
IJO,IQI,J 01 one VUR',
4, a) Tho cotllllllullnt101 riUhlfl YOll hnvn 111J" C/!fllmal lhlrurllllllll. colllrnollly known llSltll) Mlmnllo RIOhls. InCh.llJlfl\llho rlghllt> spank wllh" lawyor Dnd
Iho ,lghllO lomnln Illonl, Ilpply l}llly 10 ClII1I111I11 prn!:lIlCljlulnr. ,lIltJ 110 f\(ll upply 10 lho chornlcnl IOtWtlg jJrof;odurq undo, PonneylvilnllJ', ImpU.d
Conoonl Low, wnlch tit R Civil. nol 1I t::wlllnsl prlJClJIHJI/ll}
b) Vou Mvu no Ilghllo spollk to II lowyor. 0' l.InYOflO 11160, Ilulmo Illklng 1110 chllnllcollnl 'OqUIUl!ltJ by Ihe polleD nlllcer no, do you hllvo Q rlghllo
rOlnoln airent wllon Jl8kotl by Ino pOllco cHlcor 10 flubrml 10 Iho chomtclll hnt. Unl05Q you ng,eo H, submit 10 tho tOlll hlquollod by Iht polleo olftcor
your conduct Will bo doomed 10 blJ 'oll/aol omJ ~ OUf OplJlnllflU IJrivltogo will bo SUGpondotJ lot onn your.
c) VOUt tollllOllo submlllO chemlcollollllnQ undor Iho Impllod COtl61)nl LIlW may bl,l Inl,odueod Inlo QVldOnCo In 1I crlmlfldl proaecullon tor driving
whllo undor In. Inftuanco 0' nleohol or 0 conlfotlotJ 8lJbslant:o,
, ,.,' . ., . - . .
I c,ullly Ihnll hove wad the abo~f) wn,,,lnQ 10 Iho molorlsl ,ogB,ulno 1M auuponnlon ellhalr opo,atUlQ pn..,lIog6 and 01..,0 lhlJ motorll1 IIn oppqP1u.,,:
nHy to 8ubmJllo chemicallosttng. .
51gnulufo of OIlIcor: .___.".. _....~.__...,. _'___"nh_~.____..._~.._ Onl.: __:._~-.:......:-.. . ~ .': .
I havo boon ndvlaod 0' Ihe I1bovo
Slgnoluro 01 MOIQfiSI' ._,"_u_ ___ ... , .._. ...~,.,. __n_._u_..
Molorlol 'orullod 10 1I10nSI~f~~~~r~I~~ ~~I~~~~~""p+\l(Y.1tCh:J .~__.~~.u._.
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AFFIDAVIT
1, Tho ohovo molorisl was plnced under OHo!IIO' dnv1flO undor Iho InflLlonco 0181conol or R con1tClUOd oub.slonco In vlolallon of Socllon 31;1 fa' lht
Vehlclo Coda, Rnlj Ihoro wo,o ro,uofl"blt} (lrounlllllo bllllflYO Ihollhq alloy" molNlsl hod been drjvtr'g, oporatlng or In Rcluol physico I canUol 01
It'le mOVement 01 u molar yohlclo whllo till do, Iho In'hllHlCo 01 nlcohol or 0 conlrollod slJbalnnco 1If bolh.
or
Thai tno AlJOYU f1iImod molorial WA" involvllcJ lIllln nr.CI(jonllll which 1110 OIJOrlllor or pll55ongor 1)1 any vonlcle InvOlyod or 11 pedostrlan r.qulred
lroolmonl 01 II modical 'nclllly 0' Wf1!I klttQd,
2. The obov/J motOllst was rOQUOslorllo DubmlllO chomlclil I0311ng os o1ulllorlZQ(1 by 50CllOll IM7 ollho Vohlcle COdO,
3. Tho above molorisl wns Informnd by II police olllce, ollho chomlcnllost wfunlngll cl.)nlnlnod In IlUragroph 3 and 01 obOYo, .'
t!]JhO Abovo nnmod malorlal rolulOd 10 aubrnlllo chomlCIlIIOO!lng. .... ,
Omc..e.R1tO.Te.i Tho r.fuIII to lIon Ihll 'orm Is not II rolulOl to f1ubmi! to tho chomlcnl101I, You mUllltIll glv. Iho mOlorlll." opportu.
nllv 10 lak, 'h. chomlCdllOlI sUo, rovlowlno Ihl, torm, If Iho Indlvldunl wal opor~t1ng ,. commorclal molor vehIcle while hiving anv '
afcohol at II controlled lubatonClln tholr Iyalem, you musl nllo complolo tho ~0 'Id~ or 1I~J'~ I ..
IlUO~CRIBEO MH) UYlOIlrI OIUcor SlgflallJr~4 .t5._-:.:~_ '..
TClllHOIIIl.l1l 1 MO 03 DAy 97 'ftAIl
U""or Nnmn .1'tllU. D,~nie 1 . ;L.LJJ!\i.J:._-....___...__.:"-
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Forward 10:
Oopa~monl "' Tronspo~nllon
Bureau "' Orlvor Llcon.ing
P,O, Bo! 60037
Herrlsburg, P^ 17106.0037
THIS FORM MAY BE DUPLICATED
."... -.,,_..._..w_...~_~.___..___w________
Nato: Anv pf'Jtltnsnllacls nol cove rod bV the ftlfldavtl .hQuld be IUb",IU.'d 01\ a
$CillHI'IIO ~h081 nnd attachOd hortllo. Thftl aheet' aholJld InchJda 'hi nam.. '01
nrJdlllonal WtlMoaos necolUnry 10 pruvo tho olement.s '0 Which you h.v~ ~U.II.d.
ADDIliONA, 5UPp"ns 01 THIS ~DnM MAV DE SECUReD bV cbMP~nIN/) ;dJiIJ oh'jl~
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1 i COMMONWEALTH OF PENNSYLVANIA, I
DEPARTMENT OF TRANSPORTATION, I
I; BUREAU OF DRIVER LICENSING, I
" Appellee I
I v. :
DALE STANLEY BARBER, I
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO: 97-6273 CIVIL TERM
LICENSE SUSPENSION APPEAL
CONCISE STATEMENT
OF MATTERS COMPLAINED OF ON APPEAL
AND NOW comes the Appellant, Dale Stanley Barber, by and
through his attorneys, Jeanne B. Wigbels, Esquire, and the Law
I Offices
II
i A.
i
I
of
Patr ick F.
Lauer,
Jr.,
Esquire,
and
r.:epectfully
represents the following in support of this Concise Stat~ment:
OFFICER DANIEL !lAIR DID NOT !lAVE REASONABLE GROUNDS
TO REOUEST APPELLANT TO SUBMIT TO A CHEMICAL TEST
The Commonwealth, who has the burden of proof,
failed to
establish that Appellant did not successfully complete the field
sobriety tests administered to him.
In fact, the testimony of
Officer Daniel Hair supported a finding that the tests were in fact
passed. Therefore, Officer Hair's request of Appellant to submit
to a chemical test after he had successfully performed field
sobriety tests was unreasonable. DiPaolo v. D.O.T., 700 A.2d 569
(Pa.Cmwlth.1996) .
WHEREFORE, the trial court erred by reinstating suspension of
Appellant's driving privileges.
'16
Respectfully submitted I
DATED I
7/2/1'0
? /7
.( /) L----""'-.
Jean96 B. Wigbels, Esquire
Law Offices o~ Patrick F. Lauer, Jr.
2l0B Market street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
PA Supreme ct. ID NO..68735
Phone: (717) 763-1BOO
ATTORNEY FOR APPELLANT
'7
"'.,
COMMONWEALTH OF PENNSYLVANIA, I
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING, I
Appellee
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NOI 97-6273 CIVIL TERM
LICENSE SUSPENSION APPEAL
DALE STANLEY BARBER,
Appellant
CERTIFICATE OF SERVICE
I, Jeanne B., Wigbels, Esquire, do hereby certify that this
day I served upon the following a true and correct copy of the
foregoing Concise Statement filed at the above-reference docket
number by placing a copy of same in the United States mail at Camp
Hill, Pennsylvania, postage prepaid, and addressed aB follows:
George H. Kabuek, Assistant Counsel
PA Department of Transportation
Bureau of Drivers Licensing
Office of Chief Counsel
1101 S. Front Street, 3rd Floor
Harrisburg, PA 17l04-2516
'I
/1 /i
(j,? .(.~
Jeapne B. Wigbels, Esquire
Law Offices of Patrick F. Lauer, Jr.
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
PA Supreme Ct. ID No. 68735
Phone: (717) 763-1800
ATTORNEY FOR APPELLANT
BY:
DATED I
'?/z//!/'
98
4,
'i 7 -/~ 1-23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DALE STANLEY BARBER,
Appellant
v,
COMMONWEALTII OF
PENNSYL VANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING
No. 574 C.D. 1998
Submitted: August 21, 1998
BEFORE: HONORABLE JAMES GARDNER COLlNS, President Judge
HONORABLE DORIS A. SMITH, Judge
HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge
OPINION NOT REPO~TF.;Q
MEMORANDUM OPINION
BY PRESIDENT JUDGE COLlNS
FILED: October I, 1998
Dale Stanley Barber (Barber) appeals from the January 26, 1998 order
of the Court of Common Pleas of Cumberland County (Common Pleas) that
disl1,issed his nrrenl (If th,' nnl'-YI"lrollorl'noirm of hi~ (I;:'t"mting pri"ilegt" i:nposcd
by the Department of Transportation (Department) pursuant to 75 Pa. C.S.
~ 1547(b) for refusal to submit to chemical testing,
Common Pleas concluded that the arresting police officer had
reasonablc grounds to bclievc that Barber was driving under the influence of
alcohol. Common Pleas found that Barber had (I) driven at a high rate of speed,
(2) driven through two rcd lights, (3) crossed over the center line of the roadway,
(4) slurred his speech, and (5) admittcd to drinking a couple of beers. Common
..
Pleas nlso found that the officers detected the odor of alcohol on Barber's breath
and that Barbel' "flllllbled through his wnlletlooking for his drivers Iicense[ and]
passed it several times before tinally producing il." (Common Pleas opinion, p. 2;
Finding of Fact No.7.) According to C0l11111on Pleas there were "numerous ."
indications of intoxication established in the record, [and] it is abundantly clear
that the Officer had reasonable grounds to believe that Appellant was driving while
intoxicated." ,(Coml11on Pleas opinion, p. 5.)
Barber appeals to this Court, arguing that Common Pleas erred in
concluding that there were rcasonable grounds to believe that he drove while
intoxicated. "Whether reasonable grounds exist is a question of law reviewable by
this court on a case by case basis." Gaspe/' v. Department of Transportation,
Bu/'eau of Driver Licensing, 674 A,2d 1200, 1202 (Pa. Cmwlth.), petition for
allowance of appeal denied, 546 Pa. 666, 685 A.2d 546 (1996).
The test [for reasonable grounds] is not very demanding.
We note initially that, for 'reasonable grounds' to exist,
the police officer obviously need not be correct in his
belief that the motorist had been driving while
intoxicated, We are dealing here with the authority to
request a person to submit to a chemical test and not with
the admission into evidence of the result of such a test.
The only valid inquiry on this issue at the de novo,
hearing is whether, viewing the facts and circumstances
as they appeared at the time, a reasonable person in tbe
position of the police officer ~ concluded that
the motorist was operating the vehicle and under the
influence of intoxicating liquor.
Departmelll of Transportatioll, Bureau of Traffic Safety v, Dreishach, 363 A.2d
870,872 (Pa. Cmwlth. 1976) (footnotes omitted) (emphasis added).
Barber asserts that his case is controlled by ollr decision in DiPaolo v.
Department of rrampo/'tation, Burem/ of Dr/ver Licensing, 700 A.2d 569 (Pa.
2
Cmwlth. (997), but we disagree, In DiPaolo, thc licensee was not observed
"weaving in and out of traffic, speeding, or moving in an erratic manner" before he
was stopped. /d. at 570. The arresting police officer believed that the licensee was
driving under the influence of alcohol because of his performance 011 field sobriety
tests and because he smelled of alcohol. The common pleas court found that the
licensee had passed the field sobriety tests, leaving only the odor of alcohol to
support the officer's reasonable grounds that the licensee had driven while
intoxicated. This Court opined that it would not disturh the comll1on viens cOllrt's
conclusion that reasonable grounds did not exist, because although the police
officer could have inferred, from the odor, that the licensee had consumed alcohol,
there were no other indicia of intoxication, Here, Barber was stopped because he
drove at a high rate of speed, crossed the center line, and drove through two red
lights. Then after he was stopped, the officer detected the odor of alcohol, believed
that he observed slurred speech, and saw Barber fumble through his wallet, passing
his driver's license several times before producing it. This case can be
distinguished from DiPaolo because Barber was observed driving unsafely and
there were other indicia of intoxication accompanying the odor of alcohol.
Our review of the record convinces us that the arresting police officer
had reasonable grounds [0 believe thm Barber was operating his vehicle while
under the influence of alcohol. Accordingly, the January 26, 1998 order of the
Court of Common Pleas of Cumberland County is affirmed.
~ 0 " ."'"
.0. ,I':'.' i'. ,,' 1,/ i
JA ES GAR~~;' ~~~I~~~;~Si~~~~.~~~~'
3
.
IN THE COMMONWEALTH COURT OF PENNSYL.V AN II)
DALESTANLEYBARBE~
Appellullt
v.
COMMONWEALTH or
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING
No. 574 C.D. 1998
ORDER
AND NOW, this 1st duy of October, 1998, the order of the Court of
Common Pleas of Cumberland County in the above-captioned matter is
AFFiRMED.
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ES GARDNER COLlNS, President Judge
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