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Home My WebLink About98-06683 I .~ ~. , ~ -{ ~ ~ !~ I I ~ , i i . !c:f <-,. o :t "- It ~ ~ ~ () ( ~ o <::J ~i ~ \..1 I ~I i ......1 . , ,i .~! ",' '-'I ! ~: "'-3 ~i J ' ~ ~ ~! I COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 98-6683 CIVIL BRIAN KEITH KUNKLEHAN, Appellant LICENSE SUSPENSION APPEAL i: MEMORANDUM IN SUPPORT OF APPELLANT' S APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE , I, FACTS Appellant, Brian Keith Kunkleman, was involved in a high speed chase which resulted in a one car accident. Appellant was SUbsequently taken into custody, beaten to a bloody pulp, and :i II maced at least three times. III I I, Ii II Ii II II I I I I , ! See Page 17, Line 18 through 20. The police officers involved in the arrest of the Defendant were Sergeant Van Scyoc, Officer Eric Varner, and Corporal Jeffrey Shubert as a result of a high speed chase. See Page 4 and 5. Sergeant Van Scyoc told Officer Michael Rinaldi that he had to use force against the Appellant. See Page 18, Line 20 through 22. Sergeant Van Scyoc also told Officer Rinaldi that "they" had to punch the Appellant. See Page 17, Line 24 through 25, Page 18, Line 1. Appellant did not have slurred speech, however, an odor of alcohol was present on his breath and his eyes were ! bloodshot as a result of the mace. Appellant was given implied , II", consent warnings by Officer, Michael Rinaldi, and Officer, Ii /I Jeffrey Shubert, officers of the Mid-Cumberland Valley Regional ii II Police Department who also informed him that his commercial Ii I !i I ,I i . driver's licenso could also be jeopardized. See Page 12, Lines 22 through 25 of the transcript of Appeal of Suspension Hearing. Moreover, Officer Rinaldi specifically stated the following: "I repeatedly explained to him that he mayor could be disqualified from obtaining a CDL license if you refuse to submit to the chemical testing and that his license would be suspended for a period of one year for refusing to submit to the chemical test." See Page 12, Line 22 through 25 and Page 13, Line 1. Officer Rinaldi did not even understand what an O'Connell warning was. See Page 13, Line 1 through 4, The second officer also I contradicted the first officer's testimony in that he testified I that the first officer never mentioned anything concerning a eDL I I license to the Appellant. 'I Officer Rinaldi informed Appellant, that an employer could I have negative feelings toward having somebody working for them who had their license disqualified for that reason. See Page 23, Line 19 through 25. Officer Rinaldi stated things to the Defendant which had legal implications which were well beyond and expanded upon which was in the O'Connell warnings and told the Appellant that employers may not even hire him. See Page 24, Officer Rinaldi never told the Defendant how I Line 1 through 3. I I I . I I I II ,I II " long his eDL would be disqualified for if he refused the test. See Page 24, Line 1 through 6. Officer Rinaldi told the Defendant that employers could look very unfavorable upon him and not hire him at all, even forever. See Page 24, Line 23 through 25, Page 25, Line 1 through 2. Immediately, after Officer Rinaldi told the Defendant that he may not ever get his CDL license and may not ever be able to get a job, without telling the Defendant how long he would loose his CDL license for, the Appellant said that he could not work without a CDL license. See r Page 25, Line 1 through 6. Officer Rinaldi never informed the Appellant that he could not give him legal advice. Page 26, Line 13 through 18. Officer Rinaldi admitted that the advice that hs was giving regarding the implied consent law mayor may not have been within the implied consent law statute. See Page 27, Line 10 through 12. Officer, Jeffrey Shubert, who was also involved in giving :' the implied consent warnings to the Defendant testified at the Ii II :1 Ii I' Ii II II I I I I I II . I I! Ii I II Ii Ii I License Suspension Appeal Hearing that the Appellant said he did not want to take the blood test because it is going to affect my commercial driver's license. See Page 35, Line 9 and 10. Officer Shubert testified at the hearing that he explained to the Appellant that it is not going to affect his CDL license because he was not driving a commercial vehicle at the time. See Page 35, Line 17 through 19. Officer, Jeffrey Shubert, testified at the hearing that Officer Rinaldi was involved in instructions to the Appellant on the implied consent law. See Page 47, Line 14 through 16. Officer Shubert was questioned as to what Officer Rinaldi told the Appellant about his CDL license and refusing to take the test. See Page 47, Line 17 through 18. Officer Shubert testified that Officer Rinaldi told Appellant it would not affect his CDL license at all. See Page 47, Line 22 through 24. Officer Shubert testified that Officer Rinaldi never said anything to the Appellant regarding how refusing to take a test could affect his employment with a CDL or anything like that. See Page 48, Line 1 through 3. Officer Shubert was asked a specific question "Would it surprise you, that Officer Rinaldi testified just ten minutes ago that, in fact, he did tell him, it could affect his employment with his CDL, and he would never get a job with his CDL license if he refused that, would that surprise you?" See Page 48, Line I 4 through 8. I I I I I Officer Shubert testified that it would surprise him if Officer Rinaldi had made the above statement to the Appellant. See Page 48, Line 9. II. APPELLANT WAS IMPROPERLY INSTRUCTED AS TO THE CONSEQUENCES OF HIS REFUSAL TO SUBMIT TO A CHEMICAL TEST AND THEREFORE HIS ACTIONS DID NOT CONSTITUTE A REFUSAL, I I of refusing a chemical test. II Appellant was improperly instructed as to the consequences Pursuant to 75 Pa.C.S.A. S1547, order to sustain a license suspension, the Commonwealth must prove that the licensee l)was arrested for DUli 2)was requested to submit to chemical testing; 3)was informed that a refusal to undergo testing would result in a suspension of his operating privileges; and 4)refused to submit to the test. Department of Transportation. Bureau of Traffic Safetv v. O' Connell, 521 Pa. in ~ 242, 555 A.2d 873 (1989). Thereafter, the Burden shifts to the licensee to prove an incapacity to make a knowing and conscious , Ii refusal to take the test. Department of Transportation. Bureau , , of Driver Licensina v. Inaram, 538 Pa. 236, 648 A.2d 285 (1994). I; !i rights can negate the effects of a refusal to submit to testing. I ' !i " " " II I , , , However, confusion concerning something other than Miranda McNu1t v. De artment of Trans ortation Bureau of Driver's Licensina, 157 Pa. Commonwealth Ct. 260, 629 A.2d 278 (1993). In McNultv, the Commonwealth Court held that a licensee's request to i , I !I II I I confusion which would negate his refusal to submit to chemical read Section 3731 of the Vehicle Code does not evince the type of testing. Id. At 280. However, the court noted that its opinion was not intended to forever foreclose the possibility of a licensee successfully arguing this issue. (ie: the possibility of something other than confusion over Miranda warnings negating refusal to submit to chemical testing). In De artment of Trans ortation Bureau of Traffic Safet v. O'Connell, the Supreme Court of Pennsylvania concluded that . [slince the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify...thereby insuring that those arrestees who indicate their confusion...are not being misled into making uninformed and unknowing decisions to the take the test. 521 Pa. 242,253, 555 A.2d 873, 878 (1989). Although in O'Connell the confusion was over the right to counsel and the requirement to take the test, the case sub judice is analogous in that it also involves a course of conduct by the police which created confusion. Appellant concedes that polico officers are not required to explain every conceivable point which may confuse a licensee when requesting licensee to submit to a blood test. ~ at 268, 629 a.2d at 282. However, this is precisely the type of case the McNultv court intended to exclude from its general prohibition of negating refusal by confusion other than over Miranda warnings. In this case, the Appellant was informed by one police officer that his CDL would be disqualified by Appellant's refusal to submit to chemical testing. Appellant was also informed that he would never get a job if he refused. Subsequently, another officer informed the Appellant that refusal would not affect his COL. Additionally, this second officer also testified that the first officer never mentioned a CDL license. Therefore, by providing the Appellant with conflicting statements, the officers created circumstances which misled the Appellant and denied him of his opportunity to make an informed and knowing decision to the take the test. Additionally, in Commonwealth v. Osborne, the Commonwealth Court upheld the trial court in denying the revocation of a driver's license. 135 pa. Cmwlth. 297, 580 A,2d 914 (1990). In Osborne, the officer made a statement to the licensee, after giving proper warning, that he .could get a special work permit to drive to and from work during suspension." The Commonwealth argued that once a warning under Section 1547 is properly given to a driver, any subsequent misinformation given to the driver is ALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . NO. 98-6683 CIVIL VB. . . BRIAN KEITH KUNKLEMAN, Appellant LICENSE SUSPENSION APPEAL MEMORANDUM IN SUPPORT OF APPBLLANT' S APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGB I. FACTS Appellant, Brian Keith Kunkleman, was involved in a high speed chase which resulted in a one car accident. Appellant was subsequently taken into custody, beaten to a bloody pulp, and maced at least three times. See Page 17, Line 18 through 20. The police officers involved in the arrest of the Defendant were Sergeant Van Scyoc; Officer Eric Varner, and Corporal Jeffrey Shubert as a result of a high speed chase. See Page 4 and 5. Sergeant Van Scyoc told Officer Michael Rinaldi that he had to :' use force against the Appellant. See Page 18, Line 20 through 22. Sergeant Van Scyoc also told Officer Rinaldi that "they" had to punch the Appellant. See Page 17, Line 24 through 25, Page 18, Line 1. Appellant did not have slurred speech, however, an odor of alcohol was present on his breath and his eyes were , bloodshot as a result of the mace. Appellant was given implied consent warnings by Officer, Michael Rinaldi, and Officer, Jeffrey Shubert, officers of the Mid-Cumberland Valley Regional i ~ Police Department who also informed him that his commercial driver's license could also be jeopardized. 500 Page 12, Lines 22 through 25 of the transcript of Appeal of Suspension Hearing. Moreover, Officer Rinaldi specifically stated the following: "I repeatedly explained to him that he mayor could bo disqualified from obtaining a CDL license if you refuse to submit to the chemical testing and that his license would be suspended for a period of one year for refusing to submit to the chemical test." See Page 12, Line 22 through 25 and Page 13, Line 1. Officer Rinaldi did not even understand what an O'Connell warning was. See Page 13, Line 1 through 4. The second officer also contradicted the first officer's testimony in that he testified that the first officer never mentioned anything concerning a CDL license to the Appellant. Officer Rinaldi informed Appellant, that an employer could have negative feelings toward having somebody working for them who had their license disqualified for that reason. See Page 23, Line 19 through 25. Officer Rinaldi stated things to the Defendant which had legal implications which were well beyond and expanded upon which was in the O'Connell warnings and told the Appellant that employers may not even hire him. See Page 24, Line 1 through 3. Officer Rinaldi never told the Defendant how long his CDL would be disqualified for if he refused the test. See Page 24, Line 1 through 6. Officer Rinaldi told the Defendant that employers could look very unfavorable upon him and not hire him at all, even forever. See Page 24, Line 23 through 25, Page 25, Line 1 through 2. Immediately, after Officer , ! - Rinaldi told the Defendant that he may not ever get his CDL license and may not ever be able to get a job, without telling the Defendant how long he would loose his CDL license for, the Appellant said that he could not work without a CDL license. See Page 25, Line 1 through 6. Officer Rinaldi never informed the Appellant that he could not give him legal advice. Page 26, Line 13 through 18. Officer Rinaldi admitted that the advice that he was giving regarding the implied consent law mayor may not have been within the implied consent law statute. See Page 27, Line 10 through 12. Officer, Jeffrey Shubert, who was also involved in giving the implied consent warnings to the Defendant testified at the License Suspension Appeal Hearing that the Appellant said he did not want to take the blood test because it is going to affect my commercial driver's license. See Page 35, Line 9 and 10. Officer Shubert testified at the hearing that he explained to the Appellant that it is not going to affect his CDL license because it 1 j ~, ~. . , he was not driving a commercial vehicle at the time. See Page 35, Line 17 through 19. Officer, Jeffrey Shubert, testified at the hearing that Officer Rinaldi was involved in instructions to the Appellant on I II i.', 't 'I \, ' :~ }:,<} r f:)::i , " 'I !i !' the implied consent law. See Page 47, Line 14 through 16. Officer Shubert was questioned as to what Officer Rinaldi told the Appellant about his CDL license and refusing to take the test. See Page 47, Line 17 through 18. Officer Shubert testified that Officer Rinaldi told Appellant it would not affect 1;: his CDL license at all. See Page 47, Line 22 through 24. Officer Shubert testified that Officer Rinaldi never said anything to the Appellant regarding how refusing to take a test could affect his employment with a CDL or anything like that. See Page 48, Line I through 3. Officer Shubert was asked a specific question "Would it surprise you, that Officer Rinaldi testified just ten minutes ago that, in fact, he did tell him, it could affect his employment with his CDL, and he would never get a job with his CDL license if he refused that, would that surprise you?" See Page 48, Line 4 through B. Officer Shubert testified that it would surprise him if Officer Rinaldi had made the above statement to the Appellant. See Page 48, Line 9. II, APPELLANT WAS IMPROPERLY INSTRUCTED AS TO THE CONSEQUENCES OF HIS REFUSAL TO SUBMIT TO A CHEMICAL TEST AND THEREFORE HIS ACTIONS DID NOT CONSTITUTE A REFUSAL, Appellant was improperly instructed as to the consequences of refusing a chemical test. Pursuant to 75 Pa.C.S.A. Sl547, in order to sustain a license suspension, the Commonwealth must prove that the licensee l)was arrested for DUI; 2)was requested to submit to chemical testing; 3)was informed that a refusal to undergo testing would result in a suspension of his operating : privileges; and 4)refused to submit to the test. Department of Ii ;: Transportation. Bureau of Traffic Safetv v. 0' Connell, 521 Pa. i , " I I i' 242, 555 A.2d 873 (1989). Thereafter, the Burden shifts to the licensee to prove an incap~city to make a knowing and conscious refusal to take the test. DeDartment of TransDortation. Burea4 of Driver Licensina v. Inara~, 538 Pa. 236, 648 A.2d 285 (1994). However, confusion concerning something other than Miranda rights can negate the effects of a refusal to submit to testing. Licensing, 157 Pa. Con~onwealth Ct. 260, 629 A.2d 278 (1993). In McNulty, the Commonwealth Court held that a licensee's request to read Section 3731 of the Vehicle Code does not evince the type of 1 ureau of Diver's confusion which would negate his refusal to submit to chemical testing. Id. At 280. However, the court noted that its opinion was not intended to forever foreclose the possibility of a licensee SUccessfully arguing this issue. (ie: the possibility of something other than confusion over Miranda warnings negating refusal to submit to chemical testing). I' " v. O'Connell, the Supreme Court of Pennsylvania concluded that . [s]ince the course of conduct of the police creates the confusion in these cases, it is appropriate to place the duty on them to clarify...thereby insuring that those arrestees who indicate their confusion...are not being misled into making uninformed and unknowing decisions to the take the test. 521 Pa. In De artment of Trans ortation Bureau of Traffic Safet 242, 253, 555 A.2d 873, 878 (1989). Although in O' Connell the confusion was over the right to counsel and the requirement to take the test, the case sub jUdice is analogous in that it also ii .' involves a course of conduct by the police which created confusion. Appellant concedes that police officers are not required to explain every conceivable point which may confuse a licensee when requesting licensee to submit to a blood test. 14 at 268, 629 a.2d at 282. However, this is precisely the type of case the McNultv court intended to exclude from its general prohibition of negating refusal by confusion other than over Miranda warnings. In this case, the Appellant was informed by one police officer that his COL would be disqualified by Appellant's refusal to submit to chemical testing. Appellant was also informed that he would never get a job if he refused, SUbsequently, another officer informed the Appellant that refusal would not affect his COL. Additionally, this second officer also testified that the first officer never mentioned a COL license. Therefore, by providing the Appellant with conflicting statements, the officers created circumstances which misled the Appellant and denied him of his opportunity to make an informed and knowing decision to the take the test. Additionally, in Commonwealth v. Osborne, the Commonwealth Court upheld the trial court in denying the revocation of a driver's license. 135 pa. Cmwlth. 297, 580 A.2d 914 (1990). In Osborne, the officer made a statement to the licensee, after giving proper warning, that he 'could get a special work permit to drive to and from work during suspension." The Commonwealth argued that once a warning under Section 1547 is properly given to a driver, any subsequent misinformation given to the driver is harmless. The court explicitly rejected this contention and found that the statement given by the officer effectively related that there would be no suspension. 14. At 915. The court further articulated that it was the conduct of the arresting officer which prevented the licensee from making a knowing and conscious refusal. Similarly, in this case, the statements made by the second officer effectively related that there would be no suspension, and therefore prevented the Appellant from making a knowing and conscious refusal. Furthermore, it was the conduct of both of the arresting officers which created Appellant's confusion. One officer informed the Appellant his CDL license would not be effected by the refusal, while the other contradicted that information by informing the Appellant it would affect his CDL license. Under these circumstances, it clearly follows that Appellant could and did not make a knowing and conscious refusal of the chemical test, therefore, his license should not be suspended. Date: 3/i{Jqq , / R~;;~tfUllY submitted, r;-Alii ~~t, . Patrick F. Lauer, Jr., Esquire 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA DEPARTMENT " OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: CJF' - ,,"I'd (]'c.Jl'(-'"'l&z./7 Ii I' II I,' BRIAN KEITH KUNKLEMAN, Appellant il Ii Ii I v. LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this ;,-,~L L .' -. J'-._.' ", " ., . day of 1998, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is hereby Ordered that a Hearing on the matter shall be held on 1'1 ~ in Courtroom No. / . day of 1p'./..,'~A.<"{;- 1999 ' at 9~ A. m. of the Cumberland County Courthouse. 'I A supersedeas is granted pursuant to Vehicle Code Section I I 1550(b) (1) until such time that this honorable court resolves this I appeal. BY THE COURT: /'- I / ///7 ~/~~~ / .,/ ,- 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 C\Y\o"<",,o>> ,....."'~(l.~~_,_,<... I ^J I Jft 8'. Il' "j.\J ~'y;~ (,')-I-1r!u- 'i -, COMMONWEALTH OF PENNSYLVANIA I, " PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: -J j'. i- l. I:; ('~l-d 7~<.-. v. BRIAN KEITH KUNKLEMAN, Appellant LICENSE SUSPENSION APPEAL APPEAL PROM SUSPENSION OF OPERATOR'S PRIVILEGE AND NOW comes the Appellant, Brian Keith Kunkleman, by and through his attorney, Patrick F. Lauer, Jr., Esquire, and respectfully avers the following: 1. Appellant resides at 42 Kunkleman Lane, Shippensburg, Cumberland County, Pennsylvania 17257. 2. The Appellant received a Notice dated November 13, 199B, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privilege was being suspended for a period of one year, effective suspension date December lB, 199B, at 12:01 a.m. A true and correct copy of the Notice is attached 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. COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . NO: v. BRIAN KEITH KUNKLEMAN, Appellant LICENSE SUSPENSION : APPEAL : CERTIFICATE OF SERVICE 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 follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Re~~lIy submitted, ~~~~/l'~':~ \~:a~ h . Date: /t/l3ffF , Patrick F. Lauer, Jr., Esquire 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 " I i ! .... COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Drjver Ljcon~jng Harrishurg. PA 17123 NOVEMBER 13. 1998 BRIAN KEITH KUNKLEMAN 42 KUNKLEMAN LANE ~8310b1127245~3 001 11/0b/1~~8 2112~024 0~/24/1%b SHIPPENSBURG PA 17257 Dear Motorist: As a result of your Violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL on 10/29/1998, your driving privilege is being SUSPENDED for a period of 1 YEARCS). In order to comply with this sanction YOU are reqUired to return any current driver's license, learner's permit and/or temporary driver's license (camera card) in Your possession no later than the effective date listed. If yOU cannot comply 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 privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the PennsYlvania State Police for prosecution under SECTION 1571Ca)C4) of the Ve- hicle Code. Although the law mandates that Your driving priVilege is under suspension even if yOU do not surrender your license, Cr-edit .:ill net begin unti.1 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 12/18/1998, 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 days imprison-I Iment and a 1,000 fine and an additional 1 year suspension. I ******************************************************************** ~." C4.", (;) CHEMICAL TESTING WARNINGS AND REPORT OF REFUSAL TO SUBMIT TO CHEMICAL TESTING AS AUTHORIZED BY OF THE VEHICLE CODE SECTION 1547 /)J~ '/ SEX r ADDRESS M CITY I _~t, STAll SOCIAL SECUAm NUIIIIA SECTION 1547 - CHEMICAL TESTING WARNINGS 1. Pla.. be acIvl.td !hal you '"~ now under a"a.' fat driving under "'eln"uence 01 alcohol at e controlled .ub.llnce purau.nllo .8C11on 3731 0' "'e Ve_ Code. 2. I am requelting that you submit 10 . chemicaltsst or 3. III. my duly, a. a police officer, to inform you thaI il you relu,e 10 poriod of one year. 4. a) The conltitutional rights you have al a criminal defendanl, commonly known as the Miranda Rights, including the righlto speak with I lawyer and the right to remain silenl, apply only to criminal prosecullons .nd do not aWry to the chemica' testing procedure under Pennsylvania's Impljed Consent Law, which is a civil, not a criminal proceeding. b) You have no right 10 speak 10 a lawyer, or anyone else, before taking the chemical tesl requesled by the police officer nor do you have a nghlto remain silenl when asked by the police officer 10 submit 10 the chemicallesl. Unless you agree 10 submit to Ihe lesl requesledby the police officer your conduct will be deemed 10 be refusal and your operating privilege will be suspended for one yea/. c) Your refusal 10 submit 10 chemicall8sting under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the Influence 0' alcohol or a controlled bSlance. (b...th, blood or urine. Ollicer choo.e.th. chemicall..l.) ubmillo the chemicalle'l your operating privilege will be .u.pended tor e I certify that I have read the above wami"9 to e niry 10 submit to chemical resting. SignalUre. ~!.?fficer: I have been advised of the above. Signature of Motorist: Motorist refused 10 sign, after being advised. Signature 01 Officer: ring the suspension of their operating privilege and gave the motorisl an opportu. ---- Dale: /o/;.1Q/tir , Dale: Date: /()/9'jI7'Y AFFIDAVIT I. The above motorist was placed under arrest for driving under the inlluence of alcohol or a controlled substance in violation of Section 3731 of the Vehicle Code, and there were reasonable grounds to believe that the above molorist had been driving, operating or in actual physical control of the movement of a motor vehicle while under the influence of alcohol or a controlled substance or both. or That the above named motorisl was involved in an accident in which the operalor or passeng9r of any vehicle involved or a pedes Irian required treatment at a medical facility or was killed. 2. The above mot"risl was requesled 10 submit to chemical resting as authorized by Section 1547 of the Vehicle Code. 3. The above motorist was informod by a police officer of the chemical lest warnings contained in paragraph 3 and 4 above. 4. The above named motorisl refused to submit to chemical testing. OFFICER NOTE: The refulal to Ilgn thl. form II not a r.fullllo submit to Ihe chemlcall..t. Y .. nlty to take the chemlcall..I.'ter reviewing thl. form. If Ihelndlvldual w,. operaUng . com .Icohol or . conlrolled lublllnceln Iheir system, you mUll al.o complele the rever e 0 u u.t .111I give lhe mOlorl.t In oppOrlU- III motor vehicle while hiving Iny I rm. SUBSCRIBED AND SWORN ., TO BEFORE ~e: ~ \ ~ iC ~ o z Officer Signalure: Ollicer Name: -r- : :~~J ~~;~~;r: , '(W111'"f11'l11\op.;W'~~i( ^~'~""',""~EJPNIo!INt22,2lJ!Il!",' Badge Number: Phone: <.1!.2.-l /ioO Jurisdiction: ;jf,'J{~'I'1C' v'~1/11 K~ SA1fd-'Jb",,.. f'l) ;}.IfQ/",> <,,/. /,P /1~S7 Forward to: Departmenl of Transportalion Bureau of Driver Licensing P.O. Box 60037 Harrisburg, PA 17106.0037 _,I'ollnsjWeJ1a_tIonOl Notaries Mailing Address S"I;1- "1<,,' g3 (JCIMI-' 5it?:!F:r ,b,,,) THIS FORM MAY BE DUPLICATED Note: Any pertinent lacts not covered by Ihe alfidavit should be submilled on a separale sheet and anached hereto. That sheet should include the names of addilional wilnesses necessary 10 prove Ihe elements 10 which you have allested ADDITIONAL SUPPLIES OF THIS FORM MAY BE SECURED BY COMPLETING FORM OS.SI1A 01."1'11I o CHEMICAL TESTING WARNINGS AND REPORT OF REFUSAL TO CHEMICAL TESTING AS AUTHORIZED BY OF THE VEHICLE CODE (COMMERCIAL MOTOR VEHICLE) NMlI Fill" ""00l. E LASI SII DA YI ()llIIRTN "()flltw DAY VUlt ADDRI.. CITY STA TI ZIP COOE DAIYIR NUII.IR STATE CHIli TUT AlQUIST DATI WOflIIH DAY 'fUR SOCIAL SlCUAITf HU....U Wu I CMV IlIing tIrlven: (Check hppliclblt) W- Hazlldou. Malorilllllolng c.niocl: (Check hppliclblt) SECTION 1613 - CHEMICAL TESTING WARNINGS . . I.'" '*11**'911I1' you 'UbmlllO I chlmlCl! 1111 of (br"lII. blood 0' un,,". OffICer chao.1I1II1 chlmlCll"l!.) 2.11 is my duty, u. police officer. to Inform you fha'since you we,. operating I CMV. ir you ,,'u..to submit to the chemical tGlt. your commercial drivIng priYiltgl WIll III dilqullinld fo' I minimum p.riod at on. Y"'. 3. I) TlIe oon.lilUllonll righlJ you ha..... criminal c1e1.ndant. commonly known "' thl Mirlndl Righi', including tho right 10 ,p.lk with a r.wy., and It'l. right 10 remain aHenL apply only to criminal prosecution. and do not apply to the chlmic;allllbng proc6dur. under Pennsylvania',lmplied eon..nt Law. which i. . civil. not. criminal proceeding. b) You I'Jaw no rlghtto spea" to a Jawyer, Ot anyontl 81'B, betore t.king the chemicalf.'f requestld by the police officer nor do you have a right to remain sUenlwhen asked by the police officer to submit to the chemicallell. Unlell you Igr.e to lubmit to Ihe tesl requesled by the police officer your conducl will be deemed 10 be r.fusal and your commercial driving privilege will be dilqualified lor one y8ar. c) Your refuaallo submit to chemical testing under th8 Implied Consenl Law may b8 introduced into evidence in a criminal proseculion lor driving while under th. innuence or aJcohol or a controlled subSlance. r certify that I have read the above warning 10 the motoriSI regarding the disqualification of their commercial driving privilege and gave the mOlorist In oppollUnily 10 lubmillO ch.mi<:all..ting. SignalUre 01 Officer: Dale: I hive be.n Idvisld of the abov.. Signature of MOlorisl: Dale. MOlorist r.ruled to lign, aher being advised. SignalUre of Officer: Date: AFFIDAVIT 1. The above motorist was stopped by a police officer who, alter Slopping Ihe mOlorist, had reasonable grounds to believe the molorisl had been driving a commercial motor vehicle while having any alcohol in his system. 2. The above molorist was requesled 10 submit to chemical testing as authorized by Section 16130' the Vehicle Code. 3. The abo.... mOlorisl was inlonned by a police officer 01 the chemicallesl warnings contained in paragraph 2 and 3 above. 4. The above named motorist refused 10 submil to chemicallasling. OFFICER NO~! Th. r.tu..' to Ilgn thll form II not I retullllo lubmlt to Ih. ch.mlclllllt. You mUltll1ll glv. the mOlorlllln opportunity to leklthe chemlcll tilt 1ft., r.vl.wlng thle form. It th. Indlvldull WII Dlaced under .rrut tor op.rltlng I commercl.1 molar v.hlcl. while und.r the 'nflu.nc. at Ilcohol or I controlled Iub.tlnc. purlu.nt 10 S.ctlon 3731 of the V.hlcle Code, you mUlt 11.0 complet. the relven. lid. of thl. form. SUBSCRl8ED AND SWORN Z TOBEFOREUE: o 1= ;:s ii: S f! E o A Z L wo. DAV YEAR Officer Signature: Officer Nama: Badge Number: Jurisdiclion: Phon.: <-l Mailing Address ADDITIONAL INFORIIA TION IF NOT THE SAME OFFICER WHO WITNESSED THE REFUSAL: Name 01 Arresling Officer: Address of Arr9sling Officer: Phone Number 01 Arresting Officer L-) II Yes. name of custodian Nam9 and address of medicallacitity if brood was requested: Is [here a Videotape? (Yes or No) and phone numbar ( _ ) THIS FORM MAYBE DUPLICATED ADDITIONAL SUPPLIES OF THIS FORM MAY BE SECURED BY COMPLETING FORM OS.SllA COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT : OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW : LICENSE SUSPENSION APPEAL BRIAN KEITH KUNKLEMAN, Appellant No. 98-6683 CIVIL TERM ORDER OF COURT AND NOW, this 18th day of February, 1999, upon consideration of the Appeal from Suspension of Operator's Privilege, and following a hearing held on this date, the record is declared closed, and pursuant to an agreement of counsel, the stenographer is requested to transcribe the notes of testimony at the request of the Appellant. Pursuant to a further request of counsel, briefs shall be submitted on the two issues perceived to exist in this case - the validity of the implied consent warnings provided to the Appellant and the reasonableness of grounds existing in this case for a request to submit to a chemical test - within 10 days of the filing of the transcript. GEORGE KABUSK, ESQUIRE For the Appellee ~' J. J. 'I, ~ if:, .' h :,~:./ y , f'/;'; , ,I " ,I :1 " ,. Ii ;: , ;-;:"', PATRICK F. LAUER, JR., ESQUIRE;'::::::." For the Appellant -.~.r: Co: wcy !,. /l)c)-jI'C.'L..- lJ1:i1ll'i.c.C ..1/'1117 -, COMMONWEALTH OF PENNSYLVANIA,: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL BRIAN KEITH KUNKLEMAN, Appellant No. 98-6683 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE proceedings held before the Honorable J. WESLEY OLER, JR., Judge, Cumberland County Courthouse, Carlisle, pennsylvania, on February 18, 1999, commencing at 9:06 a.m. ("'j " in Courtroom No.1. ',_...J ., u ~.~-, ;- . ) I ,[, , L .~ l L '" ., ~ ; :<-! '> ,'-' .j ~:~ :~ ~ -, APPEARANCES: GEORGE KABUSK, ESQUIRE For the Appellee / PATRICK F. LAUER, JR., ESQUIRE For the Appellant C' .. 1 ," ., llJ ~ .. :.: i. (:, r: t~'l \ ,j II 1-' r"" ,{:, I N D E X T 0 W I T N E S S E S FOR THE APPELLEE DIRECT CROSS REDIRECT RECROSS Michael Rinaldi 4 14 29 . Jeffrey Shubert 32 39 48 49 :' ., FOR THE APPELLANT DIRECT CROSS REDIRECT RECROSS Charles West 50 58 I N D E X TOE X H I BIT S --------------------------------------- ) ,\ , FOR THE COMMONWEALTH ( APPELLANTl MARKED ADMITTED No. 1 - DL-26 form 3 38 J If II il l't , FOR THE APPELLANT MARKED ADMITTED None .~ ;. ., . ,I"., 11..' "j ,>~ :;i\ r I ~> t ) ,,-;. " " I 'I , ~,i :~~ 1 testify. 2 THE COURT: Do you have any objection? 3 MR. KABUSK: No objection, Your Honor. 4 THE COURT: All right. 5 (Whereupon, the witnesses complied.) 6 THE COURT: We will let the record indicate 7 that the Commonwealth witnesses have been sequestered. 8 Whereupon, 9 OFFICER MICHAEL RINALDI 10 having been duly sworn, testified as follows: 11 DIRECT EXAMINATION 12 BY MR. KABUSK: 13 Q Officer Rinaldi, please state your name and 14 spell your last name, please. 15 A My name is Officer Michael Rinaldi. The last 16 name is spelled R-i-n-a-l-d-i. 17 Q And where are you employed? 18 A with the Mid Cumberland Valley Regional 19 police Department in Shippensburg. 20 Q During the course of your official duties, 21 have you had an occasion to investigate an alleged incident 22 of DUI on or about October 29th, 1998? 23 A Yes, I did. 24 Q Could you tell the Court about that incident? 25 A On that particular evening, I was off duty 4 1 and going out to assist Sergeant Van Scyoc, Officer Eric 2 Varner, and corporal Jeff Shubert. upon my arrival on the 3 scene, the Defendant, Mr. Kunkleman, who is seated next to 4 Mr. Lauer, was already in custody and being treated by the 5 ambulance personnel. 6 Q Where was the scene and what was going on? 7 A It was the Baltimore Road in Southampton 8 Township, cumberland county. They had pursued -- 9 MR. LAUER: Objection. That's hearsay as to 10 what they did, unless -- I would object to him testifying as 11 to what other people did, Your Honor, unless he personally 12 observed it. 13 THE WITNESS: I can rephrase it. 14 MR. KABUSK: Your Honor, this is going to his 15 state of mind for the reasonable grounds. It is admissible 16 hearsay. 17 THE COURT: Mr. Lauer. 18 MR. LAUER: His state of mind, I would 19 submit, if they had wanted to try to get that in, they have 20 witnesses who observed that who would have been available. 21 Those people should be here to testify. There'S nothing to 22 indicate that they're not available. Those are the best 23 people to have testify. 24 THE COURT: What is the basis for the appeal? 25 Is it that the officer didn't have a reasonable basis for 5 lJ -\, 1 requesting-- 2 MR. LAUER: Exactly. THE COURT: wait. a chemical test? 3 4 MR. LAUER: Yes, sir, and that my cliont did 5 not voluntarily refuse. THE COURT: Well then, I think what the ~' ,n . . :t' 6 7 officer knew, even if it's from other people, would be 8 relevant. 9 MR. LAUER: Yes, sir. 10 THE COURT: Would you disagree with that? 11 MR. LAUER: I'm sorry? 12 THE COURT: Do you think that's not right? 13 MR. LAUER: I think it's hearsay, and he's basing it on what other people did. THE COURT: If I am not receiving it for the "I I 1 14 15 ,.., 16 truth of the statements but simply for what he was told and, 17 therefore, what he based his request on, would that be 18 acceptable? 19 MR. LAUER: Not really, because who'S to say I i ~1 f. ,( '~ ", : .~~~' .1':) j-/.b j'l :;; '": 20 whether or not that was accurate as to what happened. I have no way of attaCking what he is thinking based on what 21 22 other people told him, and I would submit that the 23 government has the burden of proof in this case. I have no 24 way of attacking the reliability or accuracy of what other people told him, of which he is relying on, and I would 25 6 .~ 1 submit that it does go for the truth of the matter asserted 2 because that's the truth of the matter asserted as to 3 whether or not he had a reasonable basis. 4 THE COURT: Mr. Kabusk. 5 MR. KABUSK: Yes, Your Honor. Reasonable 6 grounds is not a very demanding standard. Reasonable 7 grounds exists when a person in the position of the police 8 officer viewing the facts and circumstances as they appeared 9 at the time could have concluded that the motorist was 10 operating his or her vehicle while under the influence of 11 alcohol. 12 And I will cite the Vinansky case, 665 A.2d 13 860. Heresay is, for reasonable grounds, is not to prove 14 the fact but it is to prove it is admissible for the 15 purposes of proving the state of mind of the officer, 16 hearing the statement or explaining the reason for the 17 conduct of the officer in response to the statement. 18 Accordingly, the statement would be admissible to establish 19 the police officer's state of mind to establish he had 20 reasonable grounds. And there is numerous cases. The 21 Menoskv case, 550 A.2d 1372, states that hearsay is 22 admissible to prove the officer's state of mind. 23 THE COURT: I know several months from now, 24 the stenographer will ask me how to spell Menosky. 25 MR. KABUSK: Menosky, M-e-n-o-s-k-y. 7 1 THE COURT: Okay. Thank you. Tho objoction 2 is noted but overruled. 3 BY MR. KABUSK: 4 Officer Rinaldi, back lit the scene, would you Q 5 describe the scene and what was happening? 6 A There had been a vehicle accident. Again, 7 when I arrived, medical personnel were on tho scene and 8 treating Mr. Kunkleman who was handcuffed to the ambulance 9 stretcher. 10 Q How many vehiclcs werc involved in the 11 accident? 12 A One vehicle had actually collided. How did you become involved in this incident? 1 13 Q 14 A I was aware that some of my officers from my 15 department were engaged in a vehicle pursuit and their 16 approximate location. A few minutes later, rescue personnel 17 were dispatched for an auto accident. The dispatch center 18 was unaware, could not contact any of the officers involved. Nobody knew their whereabouts or their safety concerns or if they were okay, and that's why I went to the scene. 19 r i \ 20 21 Q What was your involvement? How did you get 22 there and what was your involvement? 23 A Once I got there -- I drove my personal 24 vehicle. Once I got there, Sergeant Van Scyoc instructed me 25 to accompany Corporal Shubert and the Defendant in the ;..~ 1 ambulance to Chambersburg Hospital. 2 Q okay. And what had Sergeant 3 A Van Scyoc. 4 Q -- Van Scyoc told you about what happened? 5 HR. LAUER: Objection. I mean, I would 6 submit that, that is going to the whole heart of the matter, 7 and if you want to get the reasonable basis, for a 8 reasonable basis, it would submit to me that if he doesn't 9 have it on what he observed, when we get into observations 10 of my client, observations of what my client looked like, a 11 reasonable basis to believe that he, based on my client's 12 characteristics and the way he looked and what he said, the 13 reasonable basis should be based on what he observed. He 14 had an opportunity to observe him physically. And that's my 15 objection. 16 THE COURT: Mr. Kabusk. 17 HR. KABUSK: Once again, it goes to the 18 reasonable grounds. Heresay is admissible to prove this 19 officer's reasonable grounds. 20 THE COURT: All right. You may ask the 21 witness what sergeant Van Scyoc told him. 22 BY MR. KABUSK: 23 Q Officer Rinaldi, what did Sergeant Van scyoc 24 tell you regarding the incident? 25 HR. LAUER: Objection to the form of the 9 Q the scene? A Q A Q A ~ 10 1 got thore. 2 Q And wh~t did you do? 3 A They immediately put him in the back of the 4 ambulance, and myself and corporal Shubert rode with him to 5 the hospital. 6 Q Now you say, he was in custody. How was he 7 in custody? 8 A He was handcuffed. If I recall, he was belly 9 down on the stretcher, handcuffed to each side of the 10 stretcher. One hand was handcuffed to one side. One hand 11 was handcuffed to the other. 12 Q And then what happened? 13 A En route to the hospital, Mr. Kunkleman was 14 abusive and loud and swearing, and he had asked if we would 15 take the handcuffs off, which we did, so the EMS personnel 16 could treat the injuries on his hands. 17 Q Were there indicators of alcohol? 18 A Yes. I could smell a strong odor of 19 alcoholic beverage inside the ambulance. Once we were at 20 the hospital, I could further observe Mr. Kunkleman. He had 21 glassy, bloodshot eyes, and again I could smell the odor of 22 an alcoholic beverage coming from him when he spoke to me. 23 Q Did you have any conversations with him? 24 A In the emergency room, yes, I did. Corporal 25 Shubert was reading him the implied consent form. I 11 1 explained to him that since he had a Class A license, and 2 was a truck driver, it would probably be in his best 3 interest to comply with the request to give the blood or 4 urine. 5 Q What did he say? 6 A He had told me he had a couple beers to drink 7 but didn't think he was drunk, and that he had his license 8 to worry about, he had his job to worry about, and he 9 wouldn't be able to drive truck if he didn't have his 10 license or if he had a DUI. I explained, in all probability 11 he would be charged with DUI whether he gave the breath or 12 blood or urine samples or he didn't. 13 Q Now did you read the DL-26 form to him? 14 A No, Corporal Shubert did. 15 Q Did you request him to submit to a chemical 16 test? 17 A Yes, for approximately 10 minutes, Corporal 18 Shubert and myself continuously explained -- gave him an 19 opportunity to provide a blood or urine test. 20 Q Did you warn him of the consequences of 21 refusing to submit? 22 A Yes, I did. I repeatedly explained to him 23 that he mayor could be disqualified from obtaining a CDL 24 license if he refused to submit to the chemical testing and 25 that his license would be suspended for a period of one year 12 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 for refusing to submit to the chemical test. Q Did you explain to him any sort of o'connell type warnings? A Q I don't understand your question. Did he ask to speak to an attorney? MR. LAUER: objection. You can ask him what my client said without leading the officer. THE COURT: The objection is noted but overruled. THE WITNESS: He did ask to speak to his attorney to talk, but at that particular time he did not have an opportunity or a right to speak with his attorney with regards to the request to take a blood or urine test. BY MR. KABUSK: Q Did the motorist ever submit to a chemical test? A No, he refused. Q What did he say? A He repeatedly said, no, that he was not going to give a blood test because he couldn't afford a DUI. Q Did he offer to submit to any sorts of chemical tests? A No. Q Taking you back to the scene, did anyone at the scene, did any of the officers there tell you how Mr. 13 1 Kunkleman was connected with the accident? 2 A They said he was driving the vehicle that had 3 crashed that they were pursuing. 4 Q Who said that to you? Both Officer Varner and Sergeant Van Scyoc. MR. KABUSK: No further questions. THE COURT: Mr. Lauer. 5 A 6 7 8 CROSS EXAMINATION 9 BY MR. LAUER: 10 Q sir, where were you sitting or standing or 11 wherever in the ambulance in relation to my client? 12 A In the back of the ambulance, typically 13 there's a bench seat on the passenger side, and there's a 14 small seat on the driver'S, a small seat at the head of the 15 passenger toward the front. I was on the bench seat next to 16 the paramedic towards the back of the ambulance. 17 Q So you were at the back? , f ~ f t 18 A Yes. 19 Q You were not close to -- you were not near my 20 client's face? 21 A No. 22 Q okay. 23 A Again, his face was down. I would have been I r I l., 24 by his right hip. Q In fact, from Shippensburg, you drove to the 25 14 , r r ~ 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 hospital, correct? AVes. Q How long did it take to get from Shippensburg to Carlisle Hospital? A Chambersburg Hospital. Q Chambersburg Hospital? A I would estimate, 15 to 20 minutes. Q In that 20 minutes, my client was handcuffed behind his back, correct? A No. Q He was not? A No. Q Okay. You were there, and everything you testified to here today you remember and you remember it all, right? A Q Ves. So he was not handcuffed behind his back, right? A Correct. Q And he was not face down on the stretcher for that 15 to 20 minute drive in the ambulance, correct? A Ves, he was face down. Q Okay. So the handcuffs were in front of him? A No. Q Where were the handcuffs? ." 15 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 A As I stated earlier, he was handcuffed to the sides or the stretcher, and he had injuries on his hands, and his handcuffs were released so the EMS people could treat the injuries. Q If his face is down, how were his hands? Were they right in front of him? A They were like laying down towards the ground on the floor. Q To the floor. So one handcuff -- one hand would have been handcuffed to a pole or something on the stretcher? A The handcuffs were released so the EMS personnel could treat him. Q When he was in the ambulance, was there a point in time where handcuffs were behind his back, sir, and he was down on the stretcher? A I recall his hands being handcuffed to the stretcher. Q okay. That's right when you got there, correct? A Yes. Q When you got there, my client was already in the ambulance, right? A No. Q He was not. Where was he when you got there? 16 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 A They were picking him up, picking the stretcher off the ground and wheeling him into the ambulance. Q Picking him off the ground. He was on the stretcher? A you lift up. Q How was he handcuffed to the stretcher there, is what I want to get at? A To the stretcher. There are bars on the stretcher. Each hand was handcuffed. Q Each hand was separately handcuffed, right? A Yes. Q So there would have been two handcUffs, one Right. The stretcher has extended legs that handcuff for one hand and one handcuff for the other hand, correct? A Yes. Q Okay. Now when you saw him, would you agree with me that he was a bloody pulp? A Yes. Q Okay. Did the other officers tell you that they beat him at the scene? A No. Q Did they tell you that they ever had to punch him? 17 A Ves. Q okay. So the other officers did toll you that thoy did punch him, correct? A Ves, they were fighting with him. Q Okay. What officer told you that he punched my client? A They had told me -- sergeant Van Scyoc had 1 2 3 4 5 6 7 8 stated that he resisted and they had quite a time getting 9 him handcuffed. 10 Q Van scyoc told you that though, that he 11 actually did punch my client though, correct? 12 A I don't I,now if he actually said, punched 13 him. 14 Q He hit him, right? 15 A I would imagine, yes. 16 Q I'm not asking you to imagine. I'm aSking 17 you what Van Scyoc told you, because Van Scyoc told you that 18 he fought with my client, right? 19 AVes. 20 Q And Van scyoc told you that he used force 21 against my client, right? 22 AVes. 23 Q And Van Scyoc told you that he roughed him up 24 or punched him or did whatever he had to do, right? 25 A I wouldn't define it as roughing him up. 18 1 Q What did Van Scyoc tell you that he did to 2 that gentleman? 3 A He had told me that they had wrestled and 4 rolled around, and they were up against the side of the car 5 and that, his car that had been crashed. 6 Q Well, Van Scyoc told you that he did fight 7 with him, right? 8 A Yes. 9 Q Did you ask him what he meant by, fight? 10 A No. 11 Q Now did any other officer tell you that he 12 fought with my client? 13 A Officer Varner had made the comment that they 14 fought for a period of 10 to 11 minutes. 15 Q When they say, they, that means that Varner 16 and Van Scyoc were fighting, too, right? 17 A Yes. 18 Q That they were physically involved in this 19 altercation, right? 20 A Yes. 21 Q Now did you see any blood on Van Scyoc? 22 A Yes. 23 Q Where? 24 A His hands. 25 Q How much? 19 A Minimal. Q Minimal. OOOS thia look like the ahirt that my client was wearing that night? (Mr. Lauer diaplayed a ahirt.) A Yea. Q Did you aee any kind of blood on Van Scyoc or Varner that was anything in relation to this? A No. Q It appears that my client or -- at least Varner and Van Scyoe got the best of that altercation from at least the blood that you saw? A That would be an assumption. Q An assumption. Would you agree with me that at least a reasonable assumption is that they got the best of him, based just on the blood on the shirt? A He also crashed a motor vehicle. Q Oh, okay. Now did you look inside of the vehicle? A No, I didn't. Q In fact, there was no blood in that vehicle, isn't that true? A I don't know. I didn't look in it. Q Now did you go up and examine the car? A No. Q Did Van Seyoe tell you that he ever examined 20 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 the car to see if it could be opened or not? A No. Q He did not. Now in this caBO did you notice my client's eyes when he was in the ambulance? A Not in the ambulance, no. Q You didn't even look at his eyes? A No, he was face down. Q He was face down. Did he ever get turned around? A No. Q Okay. Did you ever notice how his eyes were pasted shut from the mace? A No. Q You never noticed that? A He was face down. Q How about when you got to the hospital? Did you notice how his eyes were pasted shut there? A No, I didn't notice that they were pasted shut. Q okay. Did you notice that Brian Kunkleman was coughing, coughing up mace when he was in the ambulance? A I knew he was coughing. Q Did you see mace coming out? A No. Q Okay. Did you see mace coming out of his 21 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 .. ""~ nose? A No. o He didn't have bloodshot eyes, agree? A Yes, he did. o That's probably from the mace, wouldn't you agree with that? A May have contributed. Q Well, you don't know what his eyes looked like before, right? A No, I don't. Q So, in fact, the mace very well could have been the absolute cause of that, right? A Could have been, yes. Q Right. Now his speech wasn't slurred, isn't that true? A Actually, his speech was slurred. Q Where did you ever document that, sir? A In fact, I did a supplemental report due to my observations. Q Due to your observations -- THE COURT: wait. Let him finish his answer or the record will be confused. BY MR. LAUER: Q Do you have that with you? A Yes, I do. 22 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 Q Can I take a look at that, please? A Sure. (Witness complied.) MR. LAUER: The Court's indulgence for one second. THE COURT: Certainly. BY MR. LAUER: Q Van Scyoc told you that my client was injured as a result of the accident? A Yes. Q What injuries did he tell you that my client sustained as a result of the accident, all the blood on his clothing? A He didn't specify. Q Oh, he didn't. Where is it in the Implied Consent Law on this form that you have that says that my client's license, his COL license would be disqualified? A It says, could, could. Q Did you explain to my client what you meant by when you told him that it could be disqualified and for how long that would be? A I explained to him, an employer could have negative feelings towards having somebody working for them who had their license disqualifi.ed for that reason. Q Okay. So in addition to what's in the 23 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 '" standard torm, you went on and expanded upon that and told him that employers may not hire him? A Yes. Q What else did you tell him for how long he could be disqualified for? A That was the extent of that. Q Where did you get this specific information from, the statute, that employers could look harshly upon him, sir? A From experience. Q But there's nothing in the statute that says that, right? A No, nothing that __ Q And you never clarified that with my client then before he actually refused then, correct? A I felt it was pretty clear, as I explained it to him. Q My point being is, you explained something to him that wasn't in the law regarding the suspension of his license, right? A I explained that his license would be Suspended for a period of one year. Q And that his employers could look very unfavorable upon him and not hire him at all, right? A Yes. 24 1 Q Forever, right? 2 A Yes. He could have difficulty finding 3 another job where he was required to have a COL license. 4 Q And after you told my client that, he told 5 you that he couldn't work without a COL, isn't that true? 6 A Yes, he did. 7 Q And you never got any other supervisors 8 involved to explain to him, hey, look, we're not getting 9 involved in this, we're not going to discuss how your 10 employment is related, all we're telling you is that, if you 11 refuse, you could be losing your license for one year, you 12 never clarified that issue, right? 13 A I never told him I was going to call his 14 employer, if that's what you're aSking. 15 Q No, what I'm saying is, after you went on and 16 said about how employers may not hire him again if he had 17 refused this test, even after he got his license back after 18 one year, you never clarified that again before my client 19 refused, right? 20 A I explained the whole scenario to him for a 21 period of 10 minutes. 22 Q Uh-huh. But did you ever clarify the issue 23 regarding employment after you said that the first time, 24 meaning this, sir, you may lose your license for one year if 25 you refuse. And then you went on to tell him that an 25 1 employer may not ever hire him again even after he gets it 2 back. Did you clarify that and say, look, but r can't give 3 you legal advice on that? That's all I can tell you is 4 that, you may lose it for one year. Did you ever clarify 5 that issue on the fact that he may never get employment 6 again with a COL? 7 A r clearly explained that his employer may 8 look at that in an unfavorable manner. 9 10 11 12 13 14 give you legal advice on that, that's not my jOb, that all I 15 can do is tell you, you're going to lose your license for 16 one year if a Court finds that you refused this test? 17 A I never told him that I couldn't give him 18 legal advice and it wasn't my job. 19 Q In fact, you were giving him legal advice by 20 telling him that he may not be able to get employment with a 21 COL license if he refused his test, forever, isn't that 22 basically what you told him? 23 A I also explained to him, on a personal basis, 24 I, myself, have a CDL license, and had knowledge of that and 25 was trying to give him a little bit of a -- Q Yeah. A I don't know how else to explain that to you. Q And may not ever hire him again, right? A Correct. Q Did you ever correct that and say, I can't 26 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 Q You were trying to help him out? A certainly. Q Right. You were giving him advice on the CDL? A certainly. Q Basically, you were giving legal advice that his employer may not ever hire him again, but you're not a lawyer, right? A No. Q The advice you were talking about was outside the realm of what's in the Implied consent, right, correct? A Mayor may not be. Q Okay. A That's not for me to decide. Q okay. When my client got to the hospital, how was he taken into the hospital, on a stretcher? A On the stretcher. Q So you never saw him walk, right? A Not at that particular time, no, but I did -- Q When did you see him walk that night? A For a period of time in the emergency room when he was taken to the x-ray room for x-rays where I watched him walk in there. Q Okay. There's nothing in your report indicating that he ever staggered, agree? it 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Agree. Q lie walked in there normally, right? A Yeah, as normal as one would be. Q There was no swaying from left to right, correct? A No. Q At least the way he walked in the hospital, he didn't show any signs of being impaired by the way he walked, agree? A Q Agree. Officer Varner, was he injured in this incident? A I don't know. I don't think so. Q What kind of scratches did you see on Van 5cyoc anyways? A He had scratches on his hands. Q Just little scratches? A Yeah, small lacerations. Q okay. Was there blood on the outside of the vehicle back towards the rear of the vehicle? A I don't know. Q You didn't see any of that? A (Witness shook head negatively.) Q 50 you wouldn' t know if Van 5cyoc smashed my client's head into the car or Varner did that or someone 28 1 tramped on his head, would you? 2 A No, I wouldn't know that. 3 MR. LAUER: That's all the questions I have. 4 Thank you. 5 THE COURT: Mr. Kabusk. 6 MR. KABUSK: Yes. 7 REDIRECT EXAMINATION 8 BY KR, KABUSK: 9 Q Officer Rinaldi, would you explain what sort 10 of injuries you observed on the motorist? 11 A On the motorist, both his hands were 12 bloodied. His face was bloodied. Shirt had been torn. 13 That was pretty much what I could see visually. 14 Q When you spoke to him, could he answer your 15 questions? 16 A We had to repeat everything we said. He 17 wanted to argue a lot with us. 18 Q Was he very cooperative with you? 19 MR. LAUER: Objection. What does very 20 21 22 23 24 25 have a response to the objection? cooperative mean? Form of the question. THE COURT: Mr. Kabusk. THE WITNESS: He was uncooperative. THE COURT: Wait, wait. There's been an Objection. That answer is stricken. Mr. Kabusk, do you 29 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 MR. KABUSK: THE COURT: No, I'll strike that. All right. BY MR. KABUSK: Q Why did you have to repeat your statements to the motorist? MR. LAUER: THE COURT: Objection. Requires speculation. Mr. Kabusk. BY MR. KABUSK: Q Could the motorist hear what you were asking him? MR. LAUER: THE COURT: Objection. Requires speculation. That's overruled. BY MR. KABUSK: Q Did the motorist answer your questions? THE COURT: Well, do you want to ask the question or do you want to pass over that? MR. KABUSK: I'll just rephrase that. I'll pass over that. I'll rephrase it. THE COURT: Okay. BY MR. KABUSK: Q Did the motorist answer your questions? A He acknowledged the questions sometimes, but he didn't necessarily answer them. Q How did he acknowledge? A Like, for example, when we asked him if he 30 1 was going to submit to the chemical testing, he just kept 2 saying, am I going to get a DUI? Am I going to get a OUI? 3 I can't lose my license. He wouldn't necessarily answer the 4 question. He would make a statement. 5 Q Were you with the motorist the entire time at 6 the hospital? 7 A Yes. 8 Did he ever agree to submit to a chemical Q 9 test? 10 A No. 11 MR. KABUSK: No further questions. 12 THE COURT: Mr. Lauer. 13 MR. LAUER: I have no further questions. 14 THE COURT: Okay. I think you mentioned an 15 Officer Farner or Varner? 16 THE WITNESS: Varner with a V. 17 THE COURT: Varner with a V. What's his 18 first name? 19 THE WITNESS: Eric. 20 THE COURT: Okay. You may step down. 21 MR. KABUSK: The Department now calls Officer 22 Shubert. 23 Whereupon, 24 OFFICER JEFFREY SHUBERT 25 having been duly sworn, testified as follows: 31 I. ~ 1 DIRECT EXAMINATION 2 BY MR. KABUSK: 3 Q Officer Shubert, please state your name and 4 spell your last name. 5 A corporal Jeffrey Shubert. S-h-u-b-e-r-t. Where are you employed? Mid Cumberland Valley Regional police 6 Q 7 A 8 Department. 9 Q During the course of your official duties, 10 have you had occasion to investigate an alleged incident of 11 DUI? 12 A Yes, I have. 13 Q On or about 10/29 of '98? 14 A Yes, I did. 15 Q Would you please tell the Court about that 16 incident? 17 A I was off duty at home. I was monitoring my pOlice radio, and heard one of my officers being involved in l 18 19 a pursuit. Actually, the pursuit came past my house. And I 20 walked out on the front porch and watched the vehicle drive 21 by with his headlights off, came to an intersection, made a 22 right-hand turn on Baltimore Road, and proceeded out of town. The pursuing officer was behind the suspect vehicle, and I learned that the vehicle crashed outside of town. I h ~ 23 . { , ~ 24 25 got into my car and went to the location of the accident. 32 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 Q Then what happened? A I arrived on the scene. The two officers that were involved in the pursuit were struggling with the man on the ground trying to handcuff him. I could see that the officers were very tired trying to get this guy under control. I assisted in the arrest of the person that they were struggling with. Q How did you assist? A I assisted by getting his hands behind his back and getting him into custody. Q So the motorist was resisting being placed in custody? A Yes, he was. Q And you say, there was a struggle at the scene? A Yes, there was. Q And then what happened? A He was placed in the back of a patrol car. The ambulance arrived on the scene, and we took him out of the patrol car and placed him in the back of the ambulance. Myself and Officer Rinaldi transported the subject to the Chambersburg Hospital along with the ambulance. Q Did you have any reason to believe he was under the influence? A Yes, very strong odor of alcohol, bloodshot 33 '... 1 eyes, and when he was talking, he had very slurred speech. 2 MR. LAUER: I'm sorry. I couldn't hear that, 3 the last part of what he said. 4 THE WITNESS: Very slurred speech. 5 MR. LAUER: Thanks. 6 BY MR. KABUSK: 7 Q Did you have any conversation with the 8 motorist? 9 A Yes. 10 Q What were those? 11 A In the ambulance or at the hospital? 12 Q At any time? 13 A At any time. I had conversations with the 14 subject at the hospital. 15 Q Did you have conversations w.i.th him in the 16 ambulance? 17 A I don't recall if I did or not. 18 Q But you were with him in the ambulance? 19 A Yes, the whole time. 20 Q And then what happened? 21 A In the ambulance, he was placed face down on 22 the stretcher. The ambulance crew wished to turn him on his 23 back. I assisted in that. He was transported to the 24 Chambers burg Hospital. We were inside the hospital for 25 treatment, at which I requested a blood sample and urine 34 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 sample from the subject. Q And how did you do that? A Asked him. Q Did you have the PennDOT form? A No, I did not. Q Then after you asked him, what did he do? A He refused. Q How did he do so? A He said, I don't want to take the blood test because it's going to affect my commercial driver's license. He says, I'm already screwed. You already have me. There's no use in me pursuing this any further. There's no reason for me to take a blood test because I'm already going to be charged with Driving under the Influence. And in doing so, it's going to ruin my COL. And he was worried about, he won't be able to work anymore because he's going to lose his CDL license. I explained to the subject that it's not going to affect his CDL because he was not driving a commercial vehicle at the time. Q Did he agree to submit to a chemical test? A No, he did not. Q Did you warn him of the consequences of refusing? A Yes, I did. Q What were those? What did you tell him? 35 1 A I told him, if you refuse to submit a sample 2 of your blood or urine or and urine, your driver's license 3 will be suspended for one year, and you'll be charged with 4 Driving under the Influence. 5 Q Did you at any time have the PennDOT form? 6 A Yes, I did. 7 Q And did you use the PennDOT form? 8 A Yes, I did. 9 Q What did you do with it? 10 A I read the PennDOT form to him. He refused 11 to sign it. And I submitted that to PennDOT. 12 Q And when did you read the form to him? 13 A While he was at the hospital. 14 MR. KABUSK: May I approach the witness, Your 15 Honor? 16 THE COURT: Certainly. 17 BY MR. KABUSK: 18 Q I'm going to show you what's been marked 19 Commonwealth's Exhibit No.1. Mr. Lauer has a photocopy of 20 it. Would you read aloud what you read to the motorist? 21 THE COURT: Could you do that I think Mr. 22 Kabusk asked you to read aloud what you read to the 23 motorist, and would you read it slowly for the stenographer? 24 THE WITNESS: Yes, I will. Please be advised 25 that you are under arrest for Driving under the Influence of 36 1 alcohol or a controlled substance pursuant to section 3731 2 of the Vehicle Code. I am requesting that you submit to a 3 chemical test of blood/urine. It is my duty, as a police 4 officer, to inform you that if you refuse to submit to the 5 chemical test, your operating privilege will be suspended 6 for a period of one year. 7 The constitutional rights you have as a 8 criminal defendant, commonly known as Miranda rights, 9 including the right to speak to a lawyer -- I'm sorry -- the 10 right to speak with a lawyer and the right to remain silent, 11 apply only to chemical -- I'm sorry -- criminal prosecutions 12 and do not apply to the chemical testing procedure under the 13 pennsylvania Implied consent Law, which is a civil, not a 14 criminal proceeding. 15 You have no right to speak to a lawyer, or 16 anyone else, before taking the chemical test requested by 17 the police officer nor do you have a right to remain silent 18 when asked by the police officer to submit to the chemical 19 test. Unless you agree to submit to the test requested by 20 the police officer, your conduct will be deemed as -- as to 21 be a refusal and your operating privileges will be suspended 22 for one year. Your refusal to submit to chemical test -- 23 I'm sorry __ your refusal to submit to chemical testing 24 under the Implied Consent Law may be introduced into 25 evidence in a criminal prosecution for Driving under the 37 1 Influence of alcohol or a controlled substance. 2 I certify that I have read the above warnings 3 to the motorist regarding the suspension of their operating 4 privileges and gave the motorist an opportunity to sUbmit to 5 chemical testing. And it was signed by me on October 29th, 6 1998. 7 MR. KABUSK: I move for the admission of 8 what's been marked Commonwealth's Exhibit NO.1. 9 MR. LAUER: No objection. 10 THE COURT: All right. Commonwealth's 11 Exhibit 1 is admitted. 12 (Whereupon, 13 Commonwealth's Exhibit No. 1 14 was admitted into evidence.) 15 BY MR. KABUSK: 16 Q After you read the DL-26 to the motorist, 17 what did the motorist do? 18 A He did not want to submit to a blood or urine 19 test. 20 Q What test were you requesting? 21 A A blood and a urine test. 22 Q Why were you requesting both? 23 A For suspicion of Driving under the Influence 24 of alcohol or controlled substance. 25 Q What injuries did he have? 38 . ] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2l 22 23 24 25 A I believe a minor head injury and an elbow or some type of arm injury. Q Did he ever agree to take a chemical test? A No, he did not. MR. KABUSK: No further questions. THE COURT: Mr. Lauer. CROSS EXAMINATION BY MR. LAUER: Q Sir, you were not involved in the arrest of my client, correct, or were you? A Yes, I was. Q You were. I take it then, you saw Van scyoc pushing my client's head into the car then during the arrest? A No, I did not. Q You did not see that? A No. Q Are you sure? A Yes. Q Did you see any other officer push my client's head into the car? A No. Q No? Is that a no? A Yes, that's a no. Q Is there what's called a code of silence 39 among officers? Does that exist today? MR. KABUSK: objection, '{our Honor. THE COURT: On what ground? MR. KABUSI<: Irrelevancy. THE COURT: okay. MR. LAUER: I think it is relevant. THE COURT: The objection is overruled. BY MR. LAUER: 1 2 3 4 5 6 7 8 9 Q Is there what is called a code of silence 10 amongst officers today? 11 A I don't know what you're talking about. 12 Q Code of silence, where one officer sees 13 someone beat somebody up, and they don't talk about it? Do 14 you know did you ever hear of that? 15 A No. 16 Q You never heard of that? 17 A Nope. 18 Q Your whole lifetime, you've never heard of a 19 code of silence among officers? 20 A No, I haven't. 21 Q If we see someone get beat up, we don't talk 22 about it? 23 A Nope. 24 Q How about one officer protecting another 25 officer, have you ever heard of that? 40 9 10 11 1 :I A Yes. Where we don't want to talk about what Right. We see an officer beat someone up, we talk about it because we want to protect them, In so many words. THE COURT: I'm not sure what that question 12 means. The officer said he didn't see that. o 7 A Q A Q don't want to right? A B 13 BY MR. LAUER: 14 Q 15 A Now how did my client get all bloody? I have no idea. You have no idea. You were at the scene. 17 Don't you have one idea, just one little idea how he got all 18 bloody when you were there right after the accident? 16 Q 19 20 21 22 A Nope. Q Well, did you see the blood come off of him? A His head was bloody when I arrived. It was already bloody when you arrived. How Q ". .~~ 23 long -- did you see Van Scyoc mace my client? ;.~ ~t 24 25 A No. Q Did Van Scyoc mace my client? 41 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 --", A I don't know. Q You were there. How much time were you there after the crash? A I would say, 11 minutes or so. Q So you weren't there until after all that was done? A That's correct. Q And he's already handcuffed? A No. Q Pardon me? A He was not. Q So 11 minutes after the accident -- was it 11 minutes after the accident you were there? A Or so. Q And he still was not handcuffed? A No. Q What was he doing when you got there? A Refusing to comply with the officers trying to place him under arrest. Q How was he doing that? A By not following instructions by putting his hands behind his back. Q How many officers were on top of him? A Three, total. Q Three officers were on top of him? 42 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 - , A Yes. Q My client never stood up the whole time, right? A No. Q Well, how long were you at the scene then before he was handcuffed? A Three to five minutes. Q Okay. So it would have been like 14 minutes then, if the other officers is there for 11, and you're there 3 to 5 minutes, 14 to 15 minutes before he could get handcuffed, right? A That's correct. Q Okay. Did you see any blood on my client when you got there? A Yes. Q Did the other officers tell you how he got blood allover him? A Not at the time. Q Did they tell you any other time after that? A Yes. Q What did they tell you how he got the blood? A There was jagged metal to the rear of the car due to the crash, and it's possible that that's where he sustained that injury. Q It's possible that's how he got the blood on 43 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 ~ ,.- him? AVes. Q That's where all the scuffling occurred? A That's correct. Q Did any of the other officers get that kind of blood on them like my client got on him? A There were minor injuries to the other officers, but I don't know if it was the same as yours. Q No one else received the kind of damage as far as blood loss except for my client, and all the scuffling occurred in that location, right? A That's correct. They weren't involved in the accident, he was. Q Oh. Was there any blood in the car? A I don't know. Q Then how do you know -- I mean, all the blood didn't occur outside the vehicle? A It may have. I don't know. Q In fact, that's where it did occur, isn't that true? A I don't know. Q You don't know. Now you were in the ambulance, correct? A Yes. Q Did you see my client coughing up mace? 44 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 A No. Q You didn't see that happen at all? A (Witness shook head negatively.) Q Did you see my client complaining about the mace that was in his eyes and his nose and his mouth? A Yes. Q He was complaining about that, right? A Yes. Q How many times was my client maced when you were present at the scene? A Once that I saw. Q Who maced him the one time that you saw? A A trooper. Q That mace was put down my client's mouth, isn't that true? A No, it was sprayed at his face. Q In his face. Did you see anyone spray mace in his mouth? A No. Q How long did he let that spray bottle go in my client's A I have no idea. Q Approximately? I'm not going to beat you down to a second. A I don't know. 45 1 Q How far was that off icer away from my 2 client's face when he maced him? 3 A I don't know. 4 Q You have no idea? 5 A No. 6 Q It could have been 20 yards? 7 A Could have been. S Q Could have been 50 yards? In fact, he was 9 right up to his face when he maced himr isn't that true? 10 11 12 13 14 15 16 That's all I know. That's all I saw. I saw a trooper spray 17 your client. That's all. 1S Q What was my client's reaction after he was 19 maced? 20 A He was complaining of the result of the mace, 21 which is normal. 22 Q Do you think it's possible in this world that 23 we live in that if you got mace in your eyes, your eyes 24 could get bloodshot? 25 A It's possible. A He was close enough to get it on him, yes. Q He was very close. He was like within a foot of his face. He let that mace rip, didn't he? A (Witness nodded head affirmatively. ) Q You're shaking your head, yes? A He sprayed him. That's all I'm going to say. 46 j , 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 Q Oh, okay. So whon you talk about signs of alcohol, his bloodshot eyes, that's very well likely from that mace? A Could be. Q In fact, he was maced two times prior to that, isn't that true? A I have no idea. Q Were you aware that he was maced before he even got out of his vehicle? A No. Q Now were you present with Officer Rinaldi at the hospital? A Yes. Q Did Officer Rinaldi, was he involved in any instructions to my client on the Implied Consent Law? A Yes. Q What did Officer Rinaldi tell my client regarding his CDL license and refusing to take the test? A That he would -- regarding his CDL license? Q Yes. A It wouldn't affect his CDL license. Q So Officer Rinaldi told him, it wouldn't affect his CDL license at all? A That's correct. Q He didn't discuss anything with him saying, 47 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 hey, this could affect your employment with CDL or anything like that? A Not at all. Q Would it surprise you, Officer Rinaldi testified just 10 minutes ago that, in fact, he did tell him that, in fact, it could affect his employment with his CDL, and he may never get a job with his CDL license if he refused that, would that surprise you? A Yes, it would. MR. LAUER: That's all the questions I have. Thank you. THE COURT: Mr. Kabusk. REDIRECT EXAMINATION BY MR. KABUSK: Q Officer Shubert, was the motorist cooperative with you? A To an extent, he was. Q How was he cooperative? A When I asked him to take the blood and urine test, he basically said, no, I don't want to. I'm going to lose my driver's license as a result of this. I mean, I take that as being cooperative to that extent, yes. Q Was he cooperative at the scene? A No. Q How was he showing signs of being 48 .- , . , uncooperative? A By not following instructions by the officers on the scene. Q So, in essence, he was fighting with the officers, isn't that correct? A Yes, he was. MR. KABUSK: No further questions. THE COURT: Mr. Lauer. RECROSS EXAMINATION BY MR. LAUER: Q You don't knoW what those other officers did to him before you got there, do you? A No. Q You don't know if they beat the crap out of him before you got there? A No. Q If, in fact, two of my buddies beat the crap out of you, you may be cooperative with me later on, too? A Yes. 1m. LAUER: That's all I have. THE COURT: Mr. Kabusk. MR. KABUSK: No further questions. THE COURT: You may step down. Thank you. MR. KABUSK: That is all the direct evidence the commonwealth will present. 49 1 THE COURT: MR. LAUER: Okay. Mr. Lauer. Your Honor, I'd liko to call Mr. ;) 3 Charles West. 4 Whereupon, 5 CHARLES WEST 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY HR. LAUER: 9 Q Mr. West, would you state your name and spell 10 your last name, please? 11 A My name is Charles West. Last name is 12 spelled W-e-s-t. 13 Q Sir, what is your address? 14 A 1616 Anthony Highway, Chambersburg, 15 Pennsylvania. 16 Q You have to slow down a little bit for the 17 court reporter. I know you're not used to this. 18 A Okay. Sorry. 19 Q What due do you for a living, sir? 20 A I'~ an EMT employed with the Cumberland 21 Valley EMS in Shippensburg, Pennsylvania. 22 Q Were you working on October 29th of 1998? 23 A Yes. 24 Q Okay. Did you respond to an accident and 25 eventually see my client? 50 1 2 3 4 S 6 7 8 9 10 11 12 13 14 lS 16 17 18 19 20 21 22 23 24 2S A '{es. Q Can you tell the judgo what you saw when you got there? A When we were out and arrived on the scene, there was one vehicle. I believe it was sitting cross-ways in the road. The patient was in the back of the Mid Cumberland Valley police Department vehicle, I believe that was. Q okay. What happened then? A One of the officers wanted the patient transferred to the hospital to be evaluated and checked out. When he was sitting in the back of the police car, I believe he was handcuffed, and he was bleeding from a laceration to the top of the forehead, about the hairline, and I believe, if my memory serves me correctly, he had two lacerations on his left hand, the two middle fingers. Q Would it be fair to classify my client as looking like a bloody pulp when you got there? A He had a good amount of blood on him, yes. Q So like a bloody pulp, there was blood everywhere, right, there was blood allover his shirt? A There was blood on the front of his shirt and on his face Q Okay. THE COURT: wait. Let the witness -- Sl .... 1 THE WITNESS: On tho front of his shirt and 2 his face and his arms, and I believe maybe his pants also. 3 BY MR. LAUER: 4 Q Regarding injuries that you noticed with my 5 client, okay. And have you investigated accidents quite a 6 bit or been to a lot of accident scenes? 7 A Yes, I have. 8 Q In assessing my client's injuries, okay, and 9 looking at the vehicle, were you able to determine or at 10 least come up with a lay opinion as to whether or not my 11 client's injuries were consistent with the damage to the 12 vehicle? 13 A When I arrive on the accident scene, if time 14 permits me to do so, I usually check the interior 15 compartment of the vehicle, as far as the passenger 16 compartment, the driver's seat, for any type of damage or 17 whatever. I didn't observe any damage to the interior of 18 the vehicle itself. The majority of the damage, I believe, 19 was to the right rear of the vehicle and in the rear. 20 Q Okay. Did you notice if there was any blood 21 inside the vehicle? 22 A No, I didn't see any blood that was inside 23 the vehicle when I looked. I didn't expend -- I didn't have 24 an extended period of time to look, but I took a good 30 25 seconds and looked at the vehicle. 52 ;"'",,\ ,.. 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 Q Basically, with all the blood that was on my client's body, if there was any -- if he was insido, you would expect to see some blood there? A You would assume so, yes. Q Okay. Now were you in the ambulance then with my client on the transport? A Yes, he was my patient. It was my responsibility to take care of him en route from the scene to the hospital. Q Okay. Can you tell the judge if you noticed whether or not he was coughing up any mace when he was inside? A His face was red whenever we put him on the stretcher. His eyes were watering, and his nose was running quite a bit. He was coughing something up, but I can't exactly say what exactly he was coughing up. Q Did you notice whether or not if his eyes were pasted shut from anything? A They were highly red and a little swollen and irritated. Q Were they pasted shut from any mace? A Like I said, they were swollen shut -- Q Swollen shut? A Well, wait a minute. Let me rephase that. THE COURT: wait. Let the witness finish his 53 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 r~ rU'. answer. Now let's start that question again and get a full answer. BY HR. LAUER: Q Tell me what you noticed about his eyes. A His eyes were red. They were watering. They were a little bit swollen. They weren't swollen shut, but you could tell that there was definitely something wrong with them. But what caused that, I really can't say what caused it. Q Was there water coming from his eyes? A Yes, yes. Q And there was water -- go slow. THE COURT: Please, please. Let the witness finish his answer. BY HR. LAUER: Q Was there water coming from his eyes? A Yes. Q Was there water coming from his nose? A His nose was running, yes. Q Okay. Now did any pOlice officer ask you for any medical attention or ask you to look at any injuries they sustained there? A No, sir. Q Did any police officer complain of any injuries they sustained? 54 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 No, sir. Did any police officer look as though they A Q were hurt? A I don't know. I really didn't take notice, because the patient was my primary responsibility when I was there. Q Okay. Now when my client was in the ambulance, how was he transported? What position was he in? A He was -- when we originally got there, we got the stretcher out and removed him from the rear of the cruiser, and we laid him face down on the stretcher, and we put him into the ambulance like that. Q How was he handcuffed when he was in the ambulance? A I believe his hands were handcuffed behind his back. Q Okay. So his hands were behind his back, like all the way behind his back? A Yes, sir. Q Okay. At any time did Mr. Kunkleman ask if those handcuffs be loosened because of complaints of injuries to his wrist? A Yes, he had asked a couple times if -- he had asked me if I could loosen the handcuffs up, and I kept stating to him that it was not my responsibility to unloosen 55 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 his handcuffs. Q Were these two officers in that ambulanco? A Yes. Q Were these officers? A Yes, both of them went with me. Q When my client requested that, what was the officer's response regarding loosening the handcuffs? A I'm not sure which one I asked, but they said, no, not at this point in time. Q Now __ so clearly then, his hands were not handcuffed to the side of the stretcher? A Well, yes and no. EventuallY during the transport, we had turned him over and handcuffed him like the officers said after -- during the transport. Q That was right when you got close to the hospital, isn't that correct? A It was fairly close. We were over halfway, I believe, to the hospital at least. Q Now when you -- you and I spoke this morning, I think, for the first time, correct? A Yes, sir. Q I asked you about my client's speech, and you had heard my client speak when he was inside the ambulance, correct? A correct. 56 ~', 1 Q Would it be fair to say that his speech was 2 not slurred from what you could determine? 3 A I couldn't consider it slurred, no. He was 4 highly upset, but I don't think I would call it slurred 5 speech. 6 Q Okay. And you smelled alcohol before, right? 7 A Yes. 8 Q Would you consider it to be like an 9 overwhelming smell or a slight smell? 10 A I feel it was pretty strong, but due to the 11 fact he was laying on his belly and his head was facing down 12 towards me, I leaned down to his face to speak to him, so 13 when I leaned down to him, I believe I smelled the odor of 14 alcohol. 15 Q It didn't knock you over? No, but you knew it was there. 16 A 17 Q You knew the man consumed alcohol at some 18 time? 19 f' ! u i A Correct. 20 Q How far were those officers from you when you 21 were that close, face-to-face with my client, how far were 22 U I they from you? 23 A I was sitting in the small seat, which would 24 have been on the driver's side of the back, like the one 'y- o 25 officer explained, and the one was sitting at the head of 57 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 ,.... the patient at the seat, and the other one was sitting on the bench across from mo. Q So they woren't very close as compared to you? A Not when I was with the patient, no. Q Right. FInd if you were si tUng in the back of that van, do you think you could have smelled alcohol coming from my client's breath -- or back of the ambulance? A You mean, where I was sitting or somewhere else? Q If someone else was sitting in the back of the ambulance, do you think they could have smelled alcohol on my client's breath? A I really don't know. I know I smelled it from where I was at, but I was in close proximity to his face. Q You were face-to-face? A Basically, yes. I had to lean down to speak to him. HR. LAUER: That's all the questions I have. THE COURT: Hr. Kabusk. CROSS EXAMINATION BY HR. KABUSK: Q Mr. West, are you a medical doctor? A No, sir, I'm not. 58 Q Did the off icers tell you there was a struggle at the scene? somebody p.aid something to that effect, yes. You're an EMT, is that correct? Yes, sir. And this is a very obvious question, but do 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 A Q A Q cuts bleed? A Q that correct? A Yes, sir, they do. So it's not unusual for a cut to bleed, is No, it's not. MR. KABUSK: No further questions. THE COURT: Mr. Lauer. MR. LAUER: Nothing, Your Honor. THE COURT: You may step down. Thank you, sir. May Mr. West be excused? MR. LAUER: if they have no objection. MR. KABUSK: THE COURT: you choose. Thank you. MR. LAUER: rest. the Appellant. We would ask that he be excused, No objection. Okay. You can stay or leave as Your Honor, the defense would THE COURT: okay. Actually, you're really 59 1 HR. LAUER: The Appellant, right. 2 THE COURT: Hr. Kobusk, did you have any 3 rebuttal testimony? 4 MR. KABUSK: Nothing further, Your Honor. 5 THE COURT: okay. We'll take a brief recess. 6 May I see counsel in chambers for a moment? 7 (Whereupon, a recess was taken at 10:05 a.m. 8 and proceedings reconvened at 10:17 a.m.) 9 THE COURT: We will let the record indicate 10 that the Court has reconvened in session in the case of 11 Commonwealth of Pennsvlvania. pennsvlvania Department of 12 Transportation v. Kunkleman. The Court met in chambers with 13 counsel and discussed the issues which counsel perceive to 14 exist in the case. Mr. Lauer, would you go over the issues 15 which you feel are being raised on your appeal? 16 HR. LAUER: Yes, Your Honor. The first issue 17 would be the validity of the warnings, Your Honor, that were 18 given; and two, the reasonable basis to request the test. 19 THE COURT: All right. And, Mr. Kabusk, are 20 you in agreement that those are the two issues for the Court 21 to resolve? 22 HR. KABUSK: Yes, Your Honor. 23 THE COURT: Okay. Are counsel requesting a 24 period of time to submit briefs? 25 HR. LAUER: Your Honor, I would, and 60 1 respectfully because, on the validity of that warning, there 2 were statements made from the one officer regarding the COL, 3 which I think is crucial to my argument, I would ask that 4 the transcript be made available to me so I can use that as 5 a ~asis for the brief. 6 THE COURT: Mr. Kabusk, do you have any 7 objection to the transcript being prepared? 8 HR. KABUSK: No Objection, Your Honor. 9 THE COURT: And how much time do you need 10 after the transcript has been filed to file briefs? 11 HR. LAUER: Five days, Your Honor. 12 THE COURT: Five days? 13 HR. LAUER: I mean -- 14 THE COURT: How about 10 days? 15 HR. LAUER: Ten days. 16 THE COURT: Is that all right, Mr. Kabusk? 17 HR. KABUSK: Yes. 18 THE COURT: We'll enter this order. 19 (Whereupon, the following Order of Court was 20 entered.) 21 ORDER OF COURT 22 AND NOW, this 18th day of February, 1999, 23 upon consideration of the appeal from suspension of 24 operator's privilege, and following a hearing held on this 25 date, the record is declared closed, and pursuant to an 61 COMMONWEALTlI OF I'ENNSYLV ANIA. DEI'ARTMENT OF TRANSPORTATION.IlIIREAII OF DRIVER I.ICENSINO. Appellee : IN TilE cm JlU' OF COMMON PLEAS OF : CUMBERLAND COI INTY.I'ENNSYLV ANIA : CIVIL ACTION -- LAW v. BRIAN KEITH KUNKLEMAN. Appellant : No. 98-6683 CIVIL TERM IN RE: LICENSE SUSPENSION API>EAL BEFORE OLER, J. OPINION and ORDER OF COURT OLER. J., April 16, 1999. In this licensc suspension appeal. Appcllant has appealed from a notice of suspension arising out of his refusal to submit to a chcmical test to dctcrmine the alcoholic content of his blood. I The issue bcing pursued by Appcllant is whethcr a sufficicnt implied consent warning was given prior to the rcfusaU A hearing on the appcal was held on Fcbruary 18. 1999. For the reasons stated in this opinion, the suspension must bc upheld. STATEMENT OF I' ACTS On Thursday, Octobcr 29, 1998, Appellant was placed in custody by police at the sccnc of an accident on the Baltimore Road in Southampton Township, Cumberland County, I See Act of June 17, 1976, P.L. 162, * I, as amended. 75 Pa. C.S. * 1547 (Main Vo\. & 1998 Supp.), 2 See Memorandum in Support of Appcllant's Appeal from Suspension of Operator's Privilege, filed March 12, 1999. A second issue, whether a reasonable basis existed for a request of Appellant to submit to the chemical test, has not been pursued by Appellant. See id. .... Pennsylvania.' Appellant's apprehension occurred lilllowing an automobile ehase by ollieers oflhe Mid-Cumberland Valley Regionall'olice Department.' Bused on various ohserved indicia of alcohol consumption' and ou information received from another officer as to the pursuil of Appellant and the circumstances of his arrest.. Unicer Michael Rinaldi of the Mid-Cumherland Valley Regional 1'01 ice Department requested that Appellant submit to a ehemiealtestto determine the alcoholic content of his hlood.1 Appellant was read the lilllowing inlilrlllation from a Pennsylvania Department of Transportation DL-26 Form: Plcasc he advised that you arc now under arrest for Driving under thc Influence of alcohol or a controlled substance pursuant to Section 373 I ofthc Vehicle Code. I am requesting that you submit to a chemicaltcst ofblood/urinc. It is my duty, as a police ollicer, to infbrm you that if you refuse to submit to the chemical test, your operating privilege will be suspended for a period of one year. The constitutional rights you have as a criminal defendant, commonly known as Miranda rights, including the right to speak to a lawyer... and the right to remain silent, apply only to ... criminal prosecutions and do not apply to the chemical testing procedure under the Pennsylvania Implied Consent Law, which is a civil, not a criminal proceeding. You have no right to speak to a lawyer, or anyone else, before taking the chemical test requested by the police officer nor do you have a right to remain silent when asked by the police officer to submit to the chemical test. Unless you agree 3 N.T. 4-5, 10-1 I, Hearing, February 18, 1999 (hereinafter N.T.~. 4 N.T. 8, 32-33. IN.T. II. 6N.T.IO. 1N.T,12. 2 to suhmit 10 lhe lesl requested hy lhe police onicer. your conduct will he dl.'ellled ... 10 he a relhsal and your operilting privilegcs will he suspcndcd lilr onl.' yl.'ar.... I Y lour relhsalto suhmillo chcmical testing under the Implied Consentl.aw may he introduccd into evidence in a criminal prosccution lilr Driving tlJllll.'r thl.' Influcnce of alcohol or a controlled suhslance.' Appellant was a Imck driver and had a commercial driver's license." Ollicer Rinaldi encouraged Appcllant to snbmitto the chemical test, "repeatedly explain(ingjto him that hI.' mayor could be disqualificd from obHlining a CDL [commcrcial driver's liccnselfll... ifhc refused to submit to the chcmicaltesting and that his liccnsc would he suspendcd for a period of one year for relusing to submillo the chemicallest"ll He also told Appellant that "an employer could have ncgalive fcelings towards having somebody working for them who had their license disqualified."I: Corporal Jeffrey Shubert ofthe Mid-Cumberland Valley Regional Police Department also encouraged Appellant to submit to the chemical test. According to Corporal Shubert, [A]ppellantsaid.1 don't want to take the blood test because it's going to affcct my commercial driver's license. He says, I'm already scrclVed. You already have me. There's no use in pursuing this any further. There's no reason for me to take a blood test because I'm already going to be charged with Driving 8 N.T. 36-38; see Commonwealth's Exhibit I (DL-26 Form). 9N.T.II_12. 10 See Act of May 30,1990, P.L. 173, * 8, as amended, 75 Pa. C.S. *9 1601 et seq.(Main Vol. & 1998 Supp.). II N.T, 12-13. 12 N.T. 23. According to the recollection ofa second officer present, Officer Rinaldi told Appellant that a test refhsal would not affect his CDL license. N.T.47. To the extent that the recollections of the officers were inconsistent, the court accepted Officer Rinaldi's version of what he said as being more accurate. 3 undcr thc Inl1ucncc. Ami in doing so. it's going to ruin my CDt.. And hc was worricd ahout. he won 'I hc ahlc to work anymorc hccausc hc's !loin!l 10 losc his CDI. liccnsc. I cxplaincd lolhc suhjccl thai ii's nol !loing 10 alTcct his CDI. hccausc hc was not dri\'ing a commcrcial \'Chiclc althc time." In spite urthe allcmpls hy policc to convince Appcllantlo suhmil to a chcmical test. hc rcrused.14 Noticc or Ihc rclilsal was suhmittcd to thc I'cnnsylvnnin Dcpartmcnt or Tmnsportation.1j By notice dntcd Novcmbcr 13, 1998. Appellce suspcndcd Appcllnnt's driving privilege ror n period or onc ycar pursunnt to Scction 1547(h) or the Vehicle Codc.lt. Appellant appealed rrom the noticc of suspcnsion on Dcccmbcr I. 1998.17 As noted prcviously. a hcaring wns held on the mallcr on February 18. 1999. Appellant did not testify at the hcaring, In n hrief submillcd in support of the appenl. Appcllnnt nrgues that he "was impropcrly instructed as to the conscquences of his refusal to submit to a chemical test and there lore his actions did not constitute a refusal."18 More specifically, Appellant contends that he was informed by one police officer that his CDL would be disqualified by [his] refusal to submit to chemical testing. Appellant was also infomled that he would never get ajob ifhe refused. Subsequently, another officer inrormed the Appellant that refusal would not affect his CDL. Additionally, this second 1JN.T.35. 14 N.T. 13,35. ISN.T.36. 16 N.T. 3; see Act of June 17, 1976, P.L. 162, S I, as amended. 75 Pa. C.S. 9 1547(b). 17 Appeal from Suspension of Operator's Privilege, filed December I, 1998, 18 Memorandum in Support of Appellant's Appeal from Suspension of Operator's Privilege, submitted March 12, 1999, at 4. 4 oniccr also lcstilied that the Iirst oniccr never mcntioncd a (,IJI. liecnsc.I" "Ill Iy providing thc Appellant with conl1ieting statemcllls, the Illlicers crcatcd circumstances which misled the Appcllant and denied him of his opportllnity to make IIn infonned and knowing dccisionto take the tcst:' Mcmorandum in Supporlllf Appclhml's Appeal from Suspension of Opcrator's Privilcgc, submitted M,lreh 12, 1999. at 6, DISCUSSION "[I]n license suspcnsion eascs under Section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver involved: (I) was arrested lilr driving while under the inl1uenee of alcohol; (2) was asked to submit 10 a f chemical J tcst; (3) reliJsed to do so; and (4) was speei Iieally warned that a refusal would result in the revocation of his driver's license." Commonwealth of Penm:l'lvania, Department of Tral/sportation v. O'Connell, 521 Pa. 242, 248-49, 555 1\.2d 873. 876 (1989). A proper 0 'Col/nell warning also includes the advice that one's Miranda rights do not apply to chemical testing. Commonwealth of Pennsylvania. Department of Transportation v. Ingram. 538 Pa. 236, 648 A.2d 285 (1994). "Once the Commonwealth meets its burden, it is the driver's responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test." Commonwealth of Pennsylvania. Department of Transportation v, 0 'Connell, 521 Pa. 242, 249, 555 A.2d 873, 876 (1989). In addition, a misapprehension or confusion on the part of a motorist who refuses to submit to a chemical test will generally not afford a basis for relief if the refusal can not arguably be attributed to the misapprehension or confusion. Thus, this court has upheld license suspensions challenged on the ground of confusion on the part of the motorist, where "Id., at 6. 5 it \\'as clcar lhatthc tcst rcfus,.) rcsullcd from a fcar of nccdlcs'" or IhHn a pcrsonal belicf unrelalcdto thc implicd conscnt \\'"ming." Inliccnsc suspcnsion cascs, "qucstions of crcdihilit)' ,md conllicls in thc cvidcncc arc for thc trial court to rcsolvc:' ('/J/n/l/o/ll\'('allil O!1'I'/IIIS,I'I\,(/IIill, Dl'pll/'I/l/1'1II o/Tral/sporlllliol/ \'. II/grall/. 538 I'a, 236. 252, 648 ^.2d 282. 293 ( 1994). Wilh rcspcct to commcrcial driver's liccnscs, thc Uniform Commcrcial Drivcr's Liccnsc ^ct. which has bccn adoplcd in I'cnnsylv,lI1iaP providcs "s 111110ws. intcr "Iia: Upon rcccipt oflaJ swom rcport ofa policc ol1iccr lofa chcmical tcst rcfusalj ." thc dcpartmcnt shall disqualifY thc drivcr from driving" commcrci,,' motor vchiclc for a pcriod of onc ycar.2l * . . . Each drivcr of a commcrcial motor vehicle whosc opcrating privilcgc is suspcndcd, rcvoked or canceled by any statc, who loses thc privilcgc to drivc a commercial motor vchiclc in any statc for any period or who is disqualified from driving a commcrcialmotor vchiclc for any period, shall notify his cmployer of that fact beforc thc cnd of thc business day following the day thc drivcr rcccived noticc of the suspension, revocation, cancellation, loss or disqualification." * * * * 20 CU/'IY v, Commonweallh a/Pennsylvania. DeparlmenlofTransportation, No. 97- 0680 Civil Tcrm (July 10, 1997), 21 Milford v. Commonwealth of Pennsylvania, Department ofT/'ansportation, No, 98- 407 Civil Term (May 21, 1998). II Act of May 30,1990, P,L. 173, * 8, as amended, 75 Pa, C.S. ** 1601 et seq. (Main Vol. & 1998 Supp.). 2) Id., * 1613(e). 2" Id., * 1604(b). 6 1 No person shall drive a eOllllllerdallllolor vehide during ;IIlY period in whkh ... his operating provision is suspended. re\'Oked. eanccled wcre recalled until the person's opemting privilege has hecn rcstored ....:, ., . . . Upon receipl of a certified copy of convktion. the department shall, in addition to any other penahics imposcd under this title, disqualify any pcrson from driving a commercial motor vehicle filr a period of onc year lor the first violation of ... seclion 3731 (relating to driving under the influencc of alcohol or controlled substance), Il'/II!/'e lite I'io/alio/l occu/'/'ed while lite pe/'so/lll'as (}p(!/'ali/l~ a colI/lI/e/'cia/lI/olo/' \'ellie/e .... ~(, In the presenl case, thc gist of the advke given hy Oflieer Rinaldi concerning Appellant's commercial driver's liccnse was Ihat Appellant should submit to the chemical test, becausc a disqualification could rcsult frolll a refilsal and employers could look unfavorably upon employces so aflectcd. Thc ollicer's assessment of the attitude of employcrs toward such cmployees, whether corrcct or incorrect. did not result in Appellant's submission to the test, nor can it be said to have caused him to refuse to submit to the test. Thc gist of the advice given by Corporal Shubert regarding Appellant's commercial driver's license was that he should submit to the chemical test, because his belief that any resultant conviction for driving undcr the influence would alTect his commercial driver's license was mistaken. Since Appellant was not driving a commercial vehicle at the time of the incident, this information as to the law was correct.27 Again, the advice did not have the desired efleet of causing Appellant to submit to the chemical tesl, nor can it be said to have caused him to refilse to submit 10 Ihe test. ~5/d,. * 1606(c)(I)(ii). ~6 fel., * 1611(a)(I) (emphasis added). ~7 See text accompanying note 26 supra, 7 The court is oflhe view Ihat proper () 'COIIII"" wamings were given \() Appellant. thaI Ihe advice given hy police as to his commercial driver's license W.IS neither incorrect in u legal sense nor productive of his relilsal to suhmit 10 u chemical test. and Ihat Appellant understood thaI a eonsclluence of his relilsalto suhmit 10 Ihe test w()uld he the loss of his privilege 10 drive any motor vehicle f(lr a year. For these reasons, the li.lllowing order will he entered: ORDER OF COI JRT AND NOW, this 16th day of April, 1999. upon consideration of Appellant's Appeal from Suspcnsion ofOperutor's Privilcgc, following a hcaring and lor the rcasons statcd in the accompanying opinion. thc appcal is dcnicd and Appcllce's suspcnsion of Appcllant's driving privilcgc for a pcriod of onc year, by notice dated November 13. J 998. is allirmed. BY THE COURT. /s/ J. Wesley Olcr. Jr. J. Wesley Oler. Jr.. J. Patrick F. Lauer. Jr.. Esq. Aztec Building 2108 Market Street Camp Hill. PA 1701 J Allorney for Appellant George H. Kabusk. Esq. Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, P A 17104-2516 Allorney for Appellee 8