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CHEMICAL TESTING WARNINOlS AND RI!POAT Of'
REFUSAL TO SUBMIT TO CH!lMCAL TlIT1HO AI
AUTHORIZED BY Of' THI! VI!HIClI! COOl
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I ~It \11111 have road \Ilo above wllnlng I~I '~uz;;,"J::.tlr opollbng prlvllego .~~mototI1I.. Dll9O""
..It 10 aublnlllO </lOmlcall..dng. . .' J~ oJ ~
SignaluroolOlroeer. _ - OlIO' --1-' .,.
1 hive been adviaed 01 d\e above.
SIgnature 01 MotoriSI:
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Motorilt "fused \0 Itgn. .hiM boino acM..d
S6Qnature at Ollicer
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AFflDA YIT
I, Tho lbo"" molOrilt.... plllcod un<lt< 1"..110< d,i_ing undo< \110 inllu"""" olllcohol 0< I oontrOl1od allbatanto 1ft _lion oIgee1lon '731 01 too
YoIIoclo Coda. end \IIoro""" roalOnalllo grcunda 10 t<tloovolhol the abovo molOl\at hod boon clnvlng. opora\iflg '" i. ""lull pht"'" convol 01
the movement 01 . moW "hid. whl'-t un6ef thl tnnulnc:. al alcohol or . conlloll9d ~b"l&nG8 or bolh.
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Thll too obove nomad molotill.... in.",'""d In an acciclot,\ in which ,1>0 Opo""" 0< po"_ 01 ant _lclo "'..,Ivad d. 0 padottrton -""
_"""'" '" 0 modiCOIlociIilt 0< .... 1uI1od. . . . . . ..' .
2. The IbOW molOf'ill." rltq.le'ted to luMllt ta ct..mtcal telting alluthorlud b180ction 1&47 of \M VeMd. Code,
3. The lIbOYe rnO&ollll "., lr.f:rmctd bt e police ollic:er 01 tho ,hernicaJ t811 warning. contained in pat.graph 3 and -' aboY'l
. The abO.... naMld molonlt retute<110 iubmilla chOmlcalltlling
OfFICU NOT!!.: Tho folullllO a1gn 'hlo Corm II nolo ralu..I'. oubmll'o Iho chemical '",. You mull 0'11I glvo tho ....."a'10 opport...
nl'J .. Ilk.'.. ",,_leal 1.01 oltor ...I_lng 'hl.lo'm.lllh.lndl.ldu.I.... opera,lng I oo",mOfcllll molD' vahle" whlla havtng ant
ai_I Of 0 conUoUN aubollno.ln ",.Ir oJolO... 'OU mull 01"" oomplol. tho r.~ 1"" ollhlo 'J''''J.J.- / - A.
auNC-Mlo....a"""", Offic."rSlgnaluro'~ ~ ~
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P.O. 1101 60037
NOlO' Mt por1inenllod' noI ~ ..,. ... .- ahould be .-nod on 0
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COMMONWEALTlrs
EXrlBlT
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DEFENDANT'S
EXllIBlT NO.J
rOil IDtNTIl'IC^1{ON /It\ '->
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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i JOSEPH J. CHWASTYK,
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I i Appellant
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\ COMMONWEALTH OF PENNSYLVANIA, :
I i PENNSYLVANIA DEPARTMEN'l.'
'1 OF TRANSPORTATION,
II \ BUREAU OF DRIVER LICENSING,
Appellee
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LICENSE SUSPENSION
APPEAL
ORDER OF
COURT
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AND Nm'l, this
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day of
, upon
consideration
of
this
APPEAL
FROM
SUSPENSION
OF
OPERATOR'S
PRIVILEGE, it is hereby Ordered that a Hearing on the matter shall
. ..
day of
r t
1/-
19 '.~',( , at
i. '?J(l
be held on
, ,,'
of the Cumberland County
o'clock
ro. in Courtroom No.
,
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Courthouse.
A supersedeas is granted pursuant to Vehicle Code Section
1550(b)(1) until such time that this honorable court resolves this
appeal.
,
BY THE COURT:,.'
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Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Room 103,
Transportation & Safety Building, Harrisburg, PA 17120
-Patrick F. Lauer, Jr., Esq., 2108 Harket St., Camp Hill, Pa 17011
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JOSEPH J. CHWASTYK,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
t/ J. ? J r~ (I (('(,{ ./l".-
NO. :
COMMONWEALTH OF PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
LICENSE SUSPENSION
APPEAL
APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE
AND NOW comes the Appellant, Joseph J. Chwastyk, by' and
through his attorneys, the Law Offices of Patrick F. Lauer, Jr.,
Esquire, raspectfully aver,; the following:
1. Appellant resides at 2300 Lincoln street, Camp Hill,
Cumberland County, Pennsylvania 17011.
2. The Appellant received a Notice dated December 7, 199B,
that as a result of his alleged violation of Vehicle Code section
1547, Chemical Test Refusal, his driving privilege were being
suspended for a period of one year, effective suspension date
January 11, 1999, 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.
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5. The Appellant submits that the Commonwealth never
established that he in fact was the operator of the vehicle on the
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date and time in question.
WHEREFORE, your Appellant respectfully requests your
Honorable Court to schedule an evidentiary hearing on the matter.
Respectfully
Date: _l2r~ /Cc-9f
ick F. Lauer, Jr., Esquire
21 8 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
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JOSEPH J. CHWASTYK,
Appellant
v.
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. :
COMMONWEALTH OF PENNSYLVANIA, :
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
LICENSE SUSPENSION
APPEAL
.
.
:
VERIFICATION
I, Joseph J. Chwastyk, state that I am the Appellant in the
above-captioned case and that the facts set forth in the above
Appeal are true and correct to the best of my knowledge,
information, and belief. I realize that false statements herein
are subject to the penalties for unsworn falsification to
authorities under 18 Pa. C.S. S 4904.
Date: Jz.]..//t/yf
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JOSEPH J. CHWASTYK,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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COMMONWEALTH OF PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
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
Respectfully submitted,
? o1Jlt1 .fkLi8-l~
Patrick F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
Date: -/J--/<r;.1iL
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EXHIBIT A
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau Df Driver Licensing
Harrisburg, PA 17123
DECEMBER 07. 1998
CAMP HILL PA
17011
983346108643853 001
11/30/1998
16295423
03/09/1941
JOSEPH J CHWASTYK
2300 LINCOLN ST
Dear Motorist:
As a result of your violation of Section 1547 of the
Vehicle Code, CHEMICAL TEST REFUSAL on 11/01/1998, your
driving privilege is being SUSPENDED for a period of 1
YEAR(S).
In order to complY with this sanction you are required to
return any current driver's license, learner's permit andlor
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 DLl6LC 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 1571(a)(4) of the Ve-
hicle Code.
Although the law mandates that your driving privilege is
under suspension even if you do not surrender your license,
credit will not begin until all current driver's license
product(s), the DL16LC Form, or a letter acknowledging your
sanction is received in this 8ureau.
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 01/11/1999, 12:01 a.m.
*********************J...*******************************************
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
***************************4...~***~****************.***************
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JOSEPH J, CHWASTYK,
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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98-7186 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING,
Appellee
LICENSE SUSPENSION APPEAL
ORDER OF COURT
AND NOW, this 22nd day of March, 1999, after
hearing and consideration of the testimony presented, we do find
that the Appellant was properly apprised of his rights in
respect to the taking of a chemical test and given the proper
DL-26 warnings; and the Defendant nevertheless refused to take
the test,
During the course of oral argument, Defendant's
counsel withdrew his claim that no reasonable basis existed to
request the Appellant to submit to the chemical test;
neveJ:.-theless, the evidence would have supported the request,
We find that even if we give the Appellant the
best interpretation possible to the evidence presented,
nevertheless the officer had a reasonable basis to request the
test,
(By this ruling. the Court does not indicate that we
accepted the testimony presented by the Appellant.)
By the Court,
,J,
George H, Kabusk. Esquire
Counsel for Appellee
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Patrick F. Lauer, Jl~., Esquire
Counsel for Appellant
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JOSEPH J, CHWASTYK,
Appellant
IN THE COURT or COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
98-7186 CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA,
PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING,
Appellee
LICENSE SUSPENSION APPEAL
TRANSCRIPT OF PROCEEDINGS
LICENSE SUSPENSION APPEAL
Proceedings held before the Honorable GEORGE E.
HOFFER, P.J" Cumberland County Courthouse, Carlisle,
Pennsylvania, on Monday, March 22, 1999, in Courtroom
Number Three,
APPEARANCES:
GEORGE H, KABUSK, Esquire
For the Appellee
PATRICK F. LAUER, JR" Esquire
For the Appellant
ORIGINAL
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INDEX TO WITNESSES
FOR THE API2.ELI,EE
DIRECT CROSS .REDIRECT
ptl. Warren Scott Cornelious
3
11
FOR THE APPELLANT
Linda Lund
17
21
Joseph J, Chwastyk
22
29
35, 48
FOR THE APPELLEE IN REBUTTAL
Tpr, Warren Scott Cornelious
51
54
FOR THE APPELLANT IN SURREBUTTAL
Linda Lund
57
INDEX TO EXHIBITS
FOR THE APPELLEE
MARKED
ADMITTED
Commonwealth's Exhibit No.1 - DL-26 form
3
10
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14
15
16
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(Commonwealth's Exhibit No, 1 was marked for
identification,)
MR, KABUSK: Good afternoon, Your Honor.
This is Case No, 98-7186, Joseph J, Chwastyk,
C-h-w-a-s-t-y-k, v, Commonwealth of Pennsylvania, Department
of Transportation, Bureau of Driver Licensing, The
Commonwealth now calls Officer Warren Scott Cornelious,
Your Honor, let me return to some preliminary
matters, By official notice mailed December 7th, 1998, the
Department of Transportation notified the motorist, Joseph
J. Chwastyk, Operator's License No, 16 295 423, that as a
result of his violation of Section 1547 of the Vehicle Code
relating to chemical test refusal on 11/1 of 1998 his
driving privilege was being suspended for a period of one
year,
PTL, WARREN SCOTT CORNELIOUS
having been duly sworn, testified as follows:
DIRECT EX~1INATION
19
BY MR, KABUSK:
20
21
22
Q Officer Cornelious, please state your name
and spell YOU1- last name for the record,
A My name is Patrolman Warren Scott Cornelious,
c-o-r-n-e-l-i-o-u-s,
23
24
Q
A
Where are you employed?
I'm employed as a uniformed patrol officer
25
3
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1 with the Camp Hill Borough police Department in Cumberland
2 County,
3
Q
How long have you been so employed?
4
A
I've been employed with Camp Hill since
5 September of 1995,
6
Q
During the course of your official duties,
7 have you had occasion to investigate an alleged incident of
8 DUI on or about November 1st, 1998?
9
A
Yes, I have.
10
Q
Could you tell the Court about that incident?
11
A
That evening I was working as a uniformed
12 patrol officer in a marked patrol vehicle, when at or about
13 0219 hours I was traveling northbound in the first block of
14 North 24th Street following a white Ford Explorer, As I
15 followed that vehicle, I noted that every time it would come
16 to an area where there were vehicles parked along the right
17 shoulder of roadway or the easternmost shoulder of roadway
18 the vehicle would swerve to the left as to avoid those
19 vehicles, and then as it would pass them it would move back
20 right into what would be its proper lane of travel,
21 I continued to follow and observe that
22 vehicle, when at the intersection of North 24th Street and
23 Lincoln Street the vehicle did slow but failed to come to a
24 complete stop prior to negotiating a right turn to travel
25 eastbound on Lincoln Street, r,t th.lt time, my li.ghts --
4
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THE COURT: Are you saying there was a stop
2 sign there?
3
THE WITNESS: Yes, Your Honor,
4
THE COURT: What happened?
5
THE WITNESS: The vehicle slowed, but it
6 failed to come to a complete stop for that properly posted
7
stop sign.
It then did negotiate its right turn to travel
8 eastbound on Lincoln Street, At that time, my emergency
9 warning lights were activated, and the vehicle continued to
10 travel eastbound just a couple of car lengths, until it
11 negotiated a left turn, again without signaling, and turned
12 into a driveway and stopped,
13 I then pulled my patrol car into the rear
14 of -- behind that vehicle in the driveway and approached the
15 driver's side of the vehicle, where I encountered a white
16 male individual, as the driver, exiting the vehicle, As he
17 exited the vehicle, he stumbled and reached for the door as
18
if to catch his balance.
I then asked the driver of the
19 vehicle if he lived there, and he stated that he did. As he
20 spoke, I could detect an odor of an alcoholic beverage
21 emanating from him and noted that his eyes were bloodshot
22 and his speech was slurred,
23 I then requested that he provide me with his
24 Pennsylvania driver's license, as well as a vehicle
25 registration and an insurance card, The driver began
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1 searching for all of the requested documentation, and I
2 noted that his actions were slow and deliberate and that he
3 was fumbling through the documentation in his wallet and he
4 was having difficulty grasping his driver's license. When
5 asked where he was coming from, the driver stated that he
6 was coming from Kokomo's, When asked how much he had to
7 drink, he stated that he had consumed a few beers,
8 BY MR, KABUSK:
9
Q
officer Cornelious, what is Kokomo's?
10
A
A bar located -- I believe it's the 3800
11 block of the Carlisle Pike,
12
Q
please continue.
13
A
The driver was able to provide me with his
14 Pennsylvania driver's license and was identified from that
15 document as Joseph Chwastyk, the gentleman that is seated
16 there today to the left of defense counsel in the blue
17 blazer, I then asked Mr. Chwastyk to step down to Lincoln
18 Street, which was a flat, level surface, so that I could
19 administer the standardized field sobriety tests to him. He
20 did comply with my request. And even out of the vehicle on
21 Lincoln Street, I could still detect an odor of an alcoholic
22 beverage emanating from him, I noted that he was wearing
23 brown shoes, with his right shoe being untied; a pair of tan
24 pants; a blue blazer over a green, long-sleeved shirt.
25
I then proceeded to administer the
6
-~--
>~iooiiIl:'
1
standardized field sobriety tests to him,
Upon completion
2 of those tests, he did show signs of intoxication on all
3 tests that I administered to him, leading me to believe that
.; he was under the influence of alcohol to a degree that he
5 could not safely operate a motor vehicle. At or about 2:30
6 a.m" I did place him under arrest for DUI and into the rear
7 of my patrol car.
8
Q
Officer, you stated you placed him under
9 arrest, How did you do that?
10
A
I advised Mr, Chwastyk that he was under
11 arrest for DUI, and then I handcuffed him.
12
Q
please proceed,
13
A
After securing him in the rear of my patrol
14 car, I transported him to the Harrisburg Hospital, where he
15 was requested to submit to a chemical test of his blood, We
16 did get him registered into the emergency room registration
17 area of the hospital. upon completion of the registration
18 process, Mr, Chwastyk advised me that he was not going to
19 submit to the chemical test until his lawyer was notified,
20 He was then placed in the family room of the hospital to
21 await the arrival of a staff technologist to withdraw his
22. blood,
23 Then at or about 3:15 a,m., Lisa Snedeker, a
24 staif t.ecbnologist at the HarriGburg Hospital, did enter the
25 family room and request to withdraw Mr, Chwastyk's blood,
7
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1 Since Mr, Chwastyk had earlier advised me that he was not
2 going to submit to the chemical test, 1 then read the DL-26,
3 the chemical test refusal \1arning, to him from the PennDOT
4 form,
5
MR, KABUSK: May 1 approach the witness, Your
6 Honor.
7
THE COURT: Yes,
8 BY MR, KABUSK:
9
Q
This has been marked Commonwealth's Exhibit
10 1. It's a copy of the DL-26, Would you read aloud what you
11 read to the motorist?
12
A
Yes,
I advised the motorist that I filled in
13 their name and all their information on the top part of the
14 form, and then I -- (reading):
15 Please be advised that you are now under
16 arrest for driving under the influence of alcohol or a
17 controlled substance precedent to Section 3731 of the
16
Vehicle Code.
1 am requesting that you submit to a chemical
19
test of -- I filled in blood and circled blood.
It is my
20 duty as a police officer to inform you that if you refuse to
21 submit to the chemical test your operating privilege will be
22 suspended for a period of one year,
23 The constitutional rights you have as a
24 criminal defendant, common] Y knOl...n as the r,1i r'andi1 rights,
25 includiJ19 tIle rigllt to ~pCilk wit.ll ;1 lawy(~r ilnd tIle right to
f,
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. .
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. ,., ',:_ :: ~, -. '~'-'<,:..::,", '1~".:',::: ",- ..',."'.~':'~.. I,
1 remain silent, apply only to a criminal prosecution and do
2 not apply to the chemical testing procedure under
3 Pennsylvania's Implied Consent Law, which is a civil, not a
4 criminal, proceeding,
5 You have no right to speak to a lawyer or
6 anyone else before taking the chemical test requested by the
7 police officer, nor do you have the right to remain silent
8 when asked by the police officer to submit to the chemical
9 test, Unless you agree to submit to the chemical test by
10 the police officer, your conduct will be deemed to be a
11 refusal and your operating privilege will be suspended for
12 one year. Your refusal to submit to the chemical testing
13 under the Implied Consent Law may be introduced into
14 evidence in a criminal prosecution for driving while under
15 the influence of alcohol or a controlled substance.
16 I certify that I have read the above warnings
17 to the motorist regarding the suspension of their operating
18 privilege and gave the motorist an opportunity to submit to
19 the chemical test,
20 I then sign the form, date it, and present it
21 to the accused for their signature.
22
THE COURT:
Is that the same form you used in
23 this parti.cular case?
24
TilE VIlTNESS: Yes, YO'Jr Honor, This is just
25 a copy of it.
~1
. . " ,,'\ ," -', 'r~",','~. ~ ",",.~:,.,-,'J~:,",-:",,:;#;;:,,:;~t"~~~-.:_w~- -.';..'_'~~' ,': ,- t," < ' : "-1 ::~~' J,,:' ,_
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BY I'm, J\ABlISK:
.,
Q
You read the motorist this language word for
3 \~ol'd?
-I
A
Yes, I did,
5
MR. KABUSK:
I'd move for what's been marked
6 as Commonwealth's Exhibit No. 1. I provided Mr. Lauer with
7 a copy of that.
8
MR. LAUER: No objection, Your Honor.
9
THE COURT: All right, That's admitted.
10 (Commonwealth's Exhibit No, 1 was admitted,)
11 BY MR. KABUSK:
12
Q
Then what happened?
13
A
Then after I provided the form for Mr,
14
Chwastyk's signature, he read over it,
I asked him if he
15
understood it. He stated that he did,
I asked him if he
16 would sign the form, He again advised me that he was not
17 going to sign or do anything until his lawyer was notified.
18 I then signed that the motorist refused to sign the form.
19 Then, having been in this court before for not giving the
20 Defendant an opportunity to submit to the chemical test, I
21 specifically asked Mr. Chwastyk a third time, in the
22 presence of Lisa Snedeker, now that you've been advised of
23 your O'Connell warnings, will you submit to a chemical test?
24 lvir. ChW(lfjtyk then advised me' that he was not going to submit
25
to any chemical lest without his attorney being notified.
I
10
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1 then advised him it was going to be deemed a refusal,
..,
L.
Q
Did the motorist ever agree to submit to a
No, he did not,
MR, KABUSK: No further questions.
6 CROSS-EXAMINATION
15
A
Q
observed him.
vehicle?
A
Q
A
Q
maybe?
A
Q
3 chemical test?
4
A
Sir, how far were you behind the vehicle when
9 you first saw it when you were on 21st Street?
16
17
18
19
20
21
22
23
24th Street.
You said you first saw him on 21st, I
12 thought, did you not?
5
7 BY MR, LAUER:
8
Q
Okay. You were right behind my client's
Yes, within several car lengths.
What, two or three cal lengths?
That's probably a safe estimate, yes.
I'm guessing here, but about thirty feet
Yes,
Approximately, right, So, the entire
24 distance of all of the driVing you've testified to you were
,\, "".""",.1,' ,~(,-','.;'
.",' ,., - -
10
A
11
Q
25 thirty feet, approximately, behind that car?
11
. :", . ,'. . T.'. " ,.:.,'.. --;-'-~~7"':_-:+~.:-,:o~,'-;-o:~':~--.-'-"-":-:. ':-,' ~ ".', ",
. ""
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1
A
2
Q
3 of the vehicle?
4
A
5
Q
~""'''.~
f":<\
Roughly, yes,
Did you notice anything else about the inside
No, not to my knowledge,
You approached the vehicle, correct, on foot
6 when you stopped your vehicle?
7
A
8
Q
9
A
10
11
Yes.
You went up to the vehicle, correct?
Yes,
Q
And you didn't see anybody else in the car?
A
Yes, there was a passenger, Linda Lund was a
12 passenger in thac vehicle,
13
14
How did you know her name?
Q
A
Because Mr, Chwastyk advised me when I asked
15 him for his registration, He advised me that the vehicle
16 belonged to Linda Lund and she would have to get that
17 information for me.
18
19
Where was my client when he told you that?
Q
A
Standing outside, to the rear of his
20 vehicle.- or of the vehicle that he was operating,
21
So, he didn't get the registration and the
Q
22 insurance information for you then, correct?
It was provided to him by the female
23
A
No,
24 passenger, and then he handed it to me,
25
Oh, okay, \'1here Wi1S my cl ient at the time
Q
12
.- ~
.
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,
1 those nine steps, agree?
2
A
No, I disagree.
3
Q
Did you ask him to count out loud when he
4 walked up the nine steps?
5
A
Yes, he did,
6
Q
He did that, correct?
7
A
Yes, he did,
8
Q
when he did the turn, he did the turn
9 properly, correct?
10
A
No, he did not,
11
Q
What was improper about the turn?
12
A
He stopped, turned to his left side and took
13 two steps to his left, turned again, and then he began
14 starting the nine steps once again,
15
Q
What was the other field sobriety test that
16 you had given him?
17
A
The horizontal gaze nystagmus and the one-leg
18 stand.
19
Q
On the one-leg stand, did you ask him if he
20 had any medical or physical problems prior to doing that
21 test?
22
A
No, I did not,
23
Q
Do you know 110101 old he was at that t.ime,
24 because you already had his information from his driver's
25 license?
14
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. A ~. - ~' . "~ >.))'.", .' , .' . " .
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1
A
I believe he was born in 1941.
2
Q
So, he's over fifty years of age?
3
A
Yes,
4
Q
How long did he stand on his foot?
5
A
He stood on his foot during the zero to ten
6 seconds, He then stopped, stating that he didn't wish to
7 continue any further on the test,
8
Q
Now, you testified that you were about three
9 car lengths behind this vehicle, Did you pull right into
10 the driveway yourself then?
11
A
No, I didn't, I pulled in behind the
12 driveway,
13
Q
My client was already outside of the vehicle
14 when you pulled up there, isn't that true?
15
A
No. He was in the process of getting out of
16 his vehicle when I pulled up there,
17
MR. LAUER: That's all the questions I have,
18
Thank you, sir,
(Brief pause.)
19
Your Honor, I apologize, I just have a
20 couple.
21 BY MR, LAUER:
22
Q
\~hen you read him the implied consent
23 warnings back there, you told him initially that he was
24 under arrest for a CUI, correct?
25
A
He was advised of that on Lincoln Street.
15
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1
Q
So, on Lincoln Street you told him he was
2 under arrest for a criminal charge, right, DUI?
3
A
Yes,
4
Q
When you placed him under arrest there, did
5 you read him his rights at the scene?
6
A
No, I did not,
7
Q
Then you took him to some location, where
8 he's in the car somewhere, and he said, look, I'm not going
9 to take a chemical test without a lawyer, correct?
10
A
That's what he told me in the emergency room,
11 yes.
12
Q
what did he tell you in the car?
13
A
I don't recall anything in the vehicle,
14
Q
So, the first time you recall him refusing to
15 take this was at the hospital, correct?
16
A
Yes,
17
Q
You told him he was under arrest at the
18 scene, and then you again told him he was under arrest at
19 the hospital, correct?
20
A
Yes,
I read specifically what I read here
21 today.
22
Q
\'Ihen did you read the MirandiJ warnings to him
23 at the hospitiJl?
24
1\
] did not,
25
Q
Did you question him otherwise about what
Jl)
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1 happened after YOll placed him und,,]" '11'1 "iil I iqh' .iI \ 11"
2 scene?
3
l\
No,
My qU"Gt ion i nil w,u; Clollli'1 ,,' l.d I 'Y I Ill'
4 time __ prior to startinc" the nt:andaJdi z,.d f j,.Jd :;ulll']"\'Y
:, tests,
6
MR, J,l\UEH:
ThaL'D all the: qUl'nt. i()nn 1 ildV','.
7 Thank you,
B
MR, KABUSK:
No r\lrtll(~l. (lt1I'\13t iCJlll1, Yotll'
9
Honor,
That is the Department:':; (',1:\",
10
MR, Ll\UER:
We would call Linda Lund,
11
LINDA J ,UN!)
12
having been duly 8W01'11, t.l.'Hti1 it.d dn 101'lcjwG:
13 InHECT EXM~INATl()N
14 BY MR, LAUER:
15
Cl
Linda, would you H1 ,11 4' ,/()\ll lldllll' .llld ~lP{~] 1
16 your last name,
. ~
.l ,
l'.
!~in(1ij Illlnd, L \I-ll-d.
18
Q
You jllnL lH',lld 1 ill' (11 11('1'1 t ,./;1. ity jn this
19 case, correct?
20
A
Yt-: ~_; .
21
Q
\oJer~ y()U I>}('::' lIt (,llll'/,' IllqJlt that lJOt:' waG
22 ill"re~3tC'd?
23
1\
y,'n,
;)4
(.1
] \.",t;:" 1: : 1
:lj,~q,- 'v,:h,d 1l,q'lil'IlI.(1 from like
1;1
:~~) l~~dr-ly t lldt "\"'IJill'~ till\ II I L! , ill',< t !I,d '1',,1\1 Vl-Jl'iC](' waG
,. '",.:,.:,'., _, ,.';;._':~': ~~'1""~:f-::4i\.~"P;,\~~;n:-:;;.,~--"'~mr~ilfj,~~~fr";~:. ',: ,.' ~, ~-. .I:l~~._;,,". -.,_., " ~"',~. ~;. ." ~.,
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1 stopped,
Okay. Joe came home from Ne\1 York, He had
2
A
3 been working thirteen days, 7 p,m, to 7 a,m" in New York,
4 Oswego, New York. He drove home five hours, took a little
5 nap for maybe an hour, Then we got up and went over to
6 Colonial Country Club for dinner about 8:00,
7
Q
Slow down,
You went to colonial Country Club
8 for dinner?
9
A
Yes.
10
Q
The vehicle that's been described here, whose
11 vehicle is that?
12
A
Mine,
13
Q
Who drove to colonial Country Club?
l4
A
I did,
15
Q
Why did you drive to Colonial Country club?
16
A
Because
17
THE COURT: Mr, Lauer, what's this important
18 for?
19
MR, LAUER:
I'll move on, Judge,
20 BY MR. LAUER:
who drove the vehicle from colonial Country
21
Q
22 Club back to Kokomo's?
23
A
I did,
24
Q
From Kokomo'S to the location where your
25 vehicle was stopped, who drove the vehicle?
18
.j,! ,r..li.,......-: :". ' ' ~'~-; "" .,' ..",~ . '-
. .' . ..., '. ," '.... ."'"':' :.,'~':F:om"':.,;"":::::;-~:--:,-.--.,,~,,,:: ..;" ':' ". ,."
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10
11
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1
I did,
A
2
Tc 11 the i udqe why
I Ii,. ull ice]" testif ied
Q
3 to a vehicle moving to t1w I,'I{ \J"C"III'" I here were cars on
4
the road,
Waf3 that Y'"1 111"t W"Ii up'.']"'" i n'J t1l<~ vehicle like
5 that?
6
^
Ye'l:; ,
7
\~hy'i
Q
8
,11 w"Y" dl I v" I JloIl W"Y,
Going up 24th
^
9 Street, peopl" ,,1v1"Y" 1'''' k "11 Iii" I j,tlll h;\Ilcl fJi.de, because
you can't pill'J, UII 111" } "II
: ; ( ~
" Iv.'''Y'' CJO to the left to
avoid hittin" dny ""I "II
h,' I i <lliI .
drive that way any
12 time of the ddY oIlId II i'1111
(1
"p"illl in Lime when you were
13
JI(I ~'~'11 11'('01)
14 operating th,' v,'ll,,'J,. jl )'''11 Ii."" jiqhls to a police
15 officer'::; v,,'hi,'J,' "I " v,.hie},' wit.h "l1Iorqcncy lights?
16
^
11I111,'d lelt into my driveway, I
1\10 : ,llllll ,110
17 saw 1 19ht n, {'(lilli' Illl ,.1 j.jt II ,jlj(~ J.if]/"'nln, no J pulled into my
drive\oJ,Ti' dnd )I,IJ k,'d.
'1,,1 '''II ,ll1d wo'nt arot;nd to the
pa1:;;f;enq"~1 ' :: : ~ J rl'. I " -It" ,:1 \II I (:\It I dnei Joe got out to go
me,~t: I h,' (d t I' "1 ,It I IH' {'Illj oj th" drive\"ay,
i..t III .';1 I "I ,^'lillld L h()~,JC lights have been, from
2:~ t.ht' Jitllii,... ('dl "1 'v.'11,114"\'1'1 type of vehicle it was at that
:>.3 ;11,1', 111,0, y, III ;j~ lVl".-,:,I)' to your house?
:>1
':IWI.,I:; j(}\11 hnu::;es in bet\\.'een 24th and my
i,
~! ~1 J l' . ~ j ~ "
"'f.
J.
. ~ ~ , _ '''-.''', - ~-.'. ,,'. ~ ~;:~ ~-:-,~._--,.,'r - ;:t ".;~"""..."",~,-;, ,', ~ "M~" " ,I ...,:. ~\.,~" ,_. :
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18
19
20
21
I
I
I
I
I 1
I 2
I
,
I 3
,
,
i 4
i
,
i 5
I
I 6
I
, 1 7
i
i 8
I
,
I 9
,
! 10
i
,
,
j 11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
.\
.'l..
Q When you pulled in, was the engine to your
vehicle off?
A Yes,
Q The police officer testified that he walked
up --
THE COURT: What?
MR. LAUER: When she pulled in, did she turn
the vehicle off, the engine off,
THE COURT: After she came to a stop?
MR. LAUER: Yes,
THE COURT: Oh. You had it that she turned
the car off and she started riding to a stop,
BY MR. LAUER:
Q When you pulled into the driveway, did you
turn it off?
A Yes, after I parked,
Q The officer testified that he saw Joe --
first of all, you know Joe, I guess, correct?
A Yes, He's my fiance.
Q The officer testified that Joe had a brown
wallet. Has he ever owned a brown wallet or even own a
wallet?
A No,
Q Did the officer ever approach the driver's
side door or the door to your vehicle at all?
20
.;.;aw ~ . . .
":. ~-""".t~..... _.. ...;". ,,"'-,
.... ..-. .
, ""~" .. '~-:'~-"...:.;...--I .~'. '.,. . ;, ,: -, ,:..'." ,.',- ~-~,-, ~. ~ '" ^ '. ',' '-',"- ',': . I " '" . ," .,'
..,...
1
2
3
4
l~lm,
P"-"'.,
A
No,
Q
Did he ever come up and talk to you?
A
No,
5 CROSS-EXAMINATION
MR, LAUER: Cross-examine,
6 BY MR, KABUSK:
7
8
Q
Ms, Lund, were you drinking that evening?
A
I had two glasses of wine at the country
9 club, and I had one beer at Kokomo's,
10
11
12
Q
So you were drinking that evening?
A
Yes,
Q
Did you hear the officer testify that he
14 driver's seat?
13 observed Mr, Chwastyk in the passenger's seat -- or in the
15
16
A
I didn't hear him say that, no,
Q
Was it the officer's testimony that Mr,
18
17 Chwastyk was the driver?
A
19 he said that.
20
Q
21
A
22
Q
23
A
24
25
I think he insinuated that, but I don't think
Are you saying now that you were the driver?
I was the driver, yes.
And you were drinking that evening?
Yes.
rl,l<, KABUSK: No further questions,
11,1<, LAUER: No further quest ions, Your Honor.
~ -
..1
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,
1
THE COURT: Thank you, ma'am,
2
MR, LAUER: Your Honor, I would call Mr,
3 Chwastyk,
4 JOSEPH J, CHWASTYK
5 having been duly sworn, testified as follows:
6 DIRECT EXAMINATION
7 BY MR, LAUER:
8
Q
Mr, Chwastyk, first of all, the situation of
9 this case, that night were you operating the vehicle?
10
A
No, sir. Well, I drove in from New York
11 earlier, but I wasn't driving that vehicle. I was driving
12 my own.
13
Q
When you were at the driveway of your house,
14 tell the judge what happened.
15
A
Well, as we pulled into the driveway
I
16
don't know if Linda mentioned it or I saw it myself
but I
17 saw the lights of a police vehicle coming out of 24th Street
18 onto Lincoln. I said, well, I don't know what's going on,
19 but I'll go out and see what's happening,
20
Q
What did you do then?
21
A
I walked out the driveway, walked down to the
22 road, And as 1 got there, the police vehicle was pulling
23 up,
24
c'
How far did you have to walk from the door of
25 the vehicle tc th,., end of the driveway?
;~ ;:
. ~_..-
.,~
, , ' . , '" ' " , . - . .. , , ' ' . ' ' , ,-~~ ' ..,
~r ~;;;/-
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1
A
I'd say it's thirty or forty feet, at least,
2
Q
Did you walk down to meet the police officer?
3
A
Yes, sir, We saw the lights, so we thought
4 something was going on,
5
THE COURT: Pardon?
6
THE WITNESS: We saw the blinking lights as
7 we were making the turn into our driveway.
8 BY MR. LAUER:
9
Q
Did you even know it was a police officer at
10 that time?
11
A
Well, I thought it was, because he had the
12 lights on.
13
Q
How long do you think your vehicle was
14 actually pulled into the driveway before those police
15 officer's lights actually even got up close to your
16 driveway?
17
A
You know, I said -- I told Linda, well, I'll
19 the driveway, got down near the tree, and the police vehicle
go see what's wrong,
I stepped out of the car, walked down
18
20 was pulling up at that time, And I think I sort of scared
21 him, because he stopped, you know, a good fifteen feet from
22 me. Maybe he didn't see me coming from behind the tree or
23
v:hatever.
So, I stepped back into the driveway, and the
24 police vehicle pulled over.
25
Q
Is there anything in the driveway or the
23
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.. . .
_"~-., '.MIow.,~_........_~ --""'._'...
~-I"I,~....,..... ..;.,.
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
-.,.
yard? Is there a huge tree there?
A There's a huge tree, If you're coming from
the direction we were coming from, it would be on the left
of our driveway.
Q Does that tree obscure your view?
A ah, yeah, definitely, it does, vlhen we're
pulling out of the driveway, especially, you have to watch;
because not only do you have that, but the house next door
to us, our garage is recessed back from that house, so the
house blocks our driveway coming from the direction we'd
come from on Lincoln,
Q How well lit was your driveway, if at all?
A I think our night light was on, We have a
night light over the garage that shines down on the
driveway,
Q Are there streetlights on the street, on
Lincoln?
A No, There's no street light on the corner,
no,
Q Do you or did you or have you ever owned a
brown wallet or any wallet?
A No, sir, I haven't owned a wallet in twenty
years,
Q The little packet of cards that I showed the
police officer, is that what you use to hold your documents?
24
. ,.'," , .: : _' " ' " ~. _. .. ., ' ). , '. .. t ~ .. :_.' , ~. ,'..'.,.', J,. . " '., ., '
~.~.04
1
A
Yes,
I have one or two credit cards and my
2 driver's license,
3
Q
When the officer at the scene -- what was
4 your reaction when he then started asking you to do field
5 sobriety testS? Did you know why he was asking you to do
6 that?
No, I didn't, When the second police vehicle
7
A
8 pulled up and they talked and the second police vehicle
9 pulled away, I thought, whatever's going on is nothing, So,
10 I thought, well, I'll talk to the police officer, But then,
11 you know __ everything seemed to be fine to me until he
12 asked for the owner's card and I couldn't find the proper
13
owner's card,
Then something happened, and he got angry.
14 It seemed to me he very adamantly told me to go out in the
15 road and do this test.
16
Q
Did you understand at that point in time that
17 you were being suspected of driving a vehicle under the
18 influence of alcohol?
I had no idea what was going on at
19
A
No, sir,
20 that time,
At some point in time after those field
21
Q
22 sobriety tests, the officer put you in custody, put
23 handcuffs on you?
24
l\.
Yes, Slr, l~e put me in the back seat of the
25 car,
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3
4
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7
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9
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
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Q Did you understand or did you believe that
you were under arrest at that time?
A No, sir,
THE COURT: What?
THE WITNESS: Your Honor --
THE COURT: You've got handcuffs on, you're
in the back of the police car, and you don't think you're
under arrest?
THE WITNESS: First of all, Your Honor, I
didn't know what was going on. I mean, I thought
everything - _. you know, there was nothing wrong, And all of
a sudden, this guy started hollering at me and telling me to
do this and do that, And I told him, hey, look, I've got
tight shoes on, My shoelace is broke, I haven't slept in a
while, Then he started really hollering at me,
THE COURT: Sir, I just asked you a simple
question that you can answer yes or no. You're telling me
that the officer put handcuffs on you and put you in the
back of the police car, and you didn't realize you were
under arrest?
THE WITNESS: No, sir. He said I was going
to go get a blood test,
BY MR, LAUER:
Q So, he didn't tell. you YOll were under al~rest?
A No, G i 1".
25
10
11
12
13
14
15
16
,-.
'"
1
Q
He just told you he was taking you down for a
2 blood test?
3
A
No,
4
Q
Did he tell you he suspected you of driving a
5 car while under the influence at the time he put the
6 handcuffs on you?
7
A
No, sir,
8
Q
He just said, I'm taking you down for a blood
9 test?
A
Yes,
Q
At some point, though, did you -- what did
you tell the officer in regards to the blood test?
A Well, I just mentioned, you know, I'm not
going to do anything until I get an attorney, because I
didn't know what was going on, I mean, I ,,-'as completely
lost at this time.
17
Q
When you get down there, did you -- the
18 officer testified that you made a statement about this
19 turning,
20
THE COURT: Down where?
21
MR, LAUER: At the hospital.
22 BY MR, LAUER:
23
Q
Did you make a statement that you wanted to
24 talk to a lawyer when you were at the hospital?
25
A
Yes, sir, I spoke to -- J tllj.nk it was a
27
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1 plainclothes policeman that was there, I explained to him
2 that I wanted to talk to an attorney, He seemed to indicate
3 that he would get -- I said, I want to make sure that gets
4 on the record, and he seemed to indicate to me that he would
5 make sure it got on the record,
6
Q
When the officer told you that he was taking
7 you down for a blood test, and then at some point he read
8 you this implied consent warning, this statement -- did he
9 read this statement? Do you recall him reading that to you?
10
A
He read that to me after I told him that I
11 was not going to do anything until I had an attorney,
12
Q
Okay,
Did you understand the difference
13 between the implied consent warnings, where it told you you
14 didn't have the right to a lawyer, and the fact that it also
15 on here said that Miranda warnings did not apply? What did
16 that mean to you?
17
A
No,
I had no idea,
I had no idea what I was
18
there for.
I thought maybe there was some public
19 drunkenness thing or something because I walked out on the
20
street.
I had no idea what this guy was doing. By the
21 time, you know, I tried to talk to him, he got so angry that
22 I knew there was no sense of talking any further.
23
Q
Were you confused, though, when he told you
24 t:hat you didn't: have the right: to an attorney and you were
25 under arrest and he also told you that Miranda didn't apply?
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1 Did that confuse you?
2
A
Yes, Yes, I was confused,
3
MR, LAUER: That's all the questions I have,
4 CROSS-EXAMINATION
5 BY MR, KABUSK:
6
Q
Mr, Chwastyk, were you drinking that evening?
7
A
Yes, I had a few drinks. Yes,
8
Q
Did you ever submit to a chemical test?
9
A
No, I didn't,
10
Q
Do you recall being arrested by a police
11 officer?
12
A
Yes,
13
THE COURT: Pardon?
14
THE WITNESS: I do later on, yes, I mean,
15 this police officer was there the whole time, He's the guy
16 that took me down to the hospital. And then when I refused
17 to take the blood test --
18
THE COURT: Sir, do you recall being arrested
19 that night is what he's asking you.
20
THE WITNESS: I assumed that stuff he read to
21 me was my rights, yes, sir,
22 BY MR. KABUSK:
23
Q
Do you recall being handcuffed?
24
A
Yes, sir,
25
Q
Do you recall being placed in a police
2 ~~
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Yes, As a matter of fact, the officer said
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2
A
3 he had to handcuff me.
4
Q
Do you recall being advised by the police
5 officer that you were under arrest for DUr?
6
A
No, sir, There was never any mention for
7 being under arrest for Dur,
8
Q
Do you recall being transported to a
9 hospital?
10
A
Yes, sir.
11
Q
Do you recall being requested to submit to a
12 chemical test?
13
A
Yes, r do,
14
Q
Do you recall being warned of the
15 consequences of refusing to submit to the test?
16
A
There were some warnings given to me, but by
17 this time r had no idea what was going on, And r was not
18 going to do anything until r had an attorney there to
19 explain what was going on, because r had no idea what was
20 going on.
Do you recall being provided with various
21
Q
22 warnings; in other words, that the Miranda does not apply
23 and that your silence will be considered a refusal?
2'1
A
I remember something about the Miranda, which
25 I didn't understand, because I thought Miranda was something
30
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1 that was -- I mean, that if you're put under arrest for
2 something, even if I didn't know what it was, that I had a
3 right to Miranda -- I mean to a lawyer,
4
Q
Did you refuse to submit to a chemical test?
5
A
Yes,
6
THE COURT: He said he did, sir, several
7 times.
8 BY MR. KABUSK:
9
Q
Did you say you were not going to do anything
10 until you get an attorney?
11
THE COURT: You got that three times in the
12 record, or that's the third one.
13 BY MR, KABUSK:
14
Q
Were you stopped on your property?
15
A
The car was stopped on the property, and I
16 walked out to the road.
17
Q
What was the purpose of your walking out to
18 the road?
19
A
Because we were the only car out there, and
20
the blue lights were on,
I just went out to see what was
21 going on.
22
Q
In actuality, did you attempt to throw the
23 police officer off your property?
24
A
No; B i r ,
~,-
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Q
Do you roc:l]] bl~illg iJ!tc)~viewed later on at
3 ]
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4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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the booking center?
A Yes,
Q Do you recall being told that was being
videotaped?
A Yes, sir,
Q Do you recall being asked a series of
questions?
A Yes, sir,
Q Do you recall being asked if you were the
operator of the vehicle?
A No, si.:t'. I mean, I remember being asked
questions, I don't remember what all of the specifics were.
THE COURT: Have you viewed that yet, Mr.
Laue:c?
MR, LAUER:
THE COURT:
No, Your Honor,
You might want to do that yet
today,
MR, LAUER: l'lell, if he would show it to me.
This case hasn't yet been to a preliminary hearing,
BY MR, KABUSK:
22
Q l'lhat was your answer when you were asked,
were you operating a vehicle?
r~R, LJl.UER: Your HanOI', if he's going to
question 11itn about W}lat's on a piece of pnper al1d w}lat's on
il videotape, I think he f3hould be 'liven an opportunity to
23
24
25
32
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1 look at it before he has to answer that question if he
2 doesn't know,
3
THE COURT: I don't necessarily agree with
4 that, sir. You can make it an issue at some point, Anyway,
5 what are you referring to?
6
MR, KABUSK: I have an alcoholic influence
7 report form, and I'm willing to show this to Mr. Lauer, It
8 says--
9
MR, LAUER: If I could just see it first.
10
MR, KABUSK: It says, have you been operating
11 a vehicle?
12
THE COURT: What is this document you have?
13
MR, LAUER: This is an alcoholic influence
14 report form, Judge, where he was questioned,
15
THE COURT: I'm asking PennDOT's counsel,
16
MR. LAUER: Oh, I'm sorry, Your Honor,
17
MR, KABUSK: This is apparently a form that's
18 filled out by the employees of the booking center,
19
THE COURT: Okay,
Is this a verbatim
20 transcript of who said what or --
21
MR, KABUSK: No, it's not a verbatim
22 transcript. I understand it's been videotaped, though.
23
THE COURT: Oh, okay,
24 BY MR, KABUSK:
25
Q
When asked, were you operating a vehicle,
33
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operated a vehicle that day, yes,
I just drove back from
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what was your answer to that question?
2
MR, I,AUER:
If he knows,
3
THE WITNESS:
I don't remember, I mean, I
5 Oswego, New York.
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MR, LAUER: Your HOIlor, I'd ask him to let
7 him see the document,
8
THE COURT: Pardon?
9
MR. LAUER: I would ask the PennDOT attorney
10 to let my client at least see the document as to what was
11
said to at least make what was specifically said on the
12
document part of the record.
13
THE COURT:
It's the report made up by the
14
fellow who interviewed him, who isn't here, of course, but
15
it's not a transcript as such, Mr. Lauer,
16
MR. LAUER: Yes, sir.
17
BY MR. KABUSK:
18
Q
You stated that you were confused that
19 evening?
20
A
I wasn't confused until the officer threw me
21 in the back seat of the car and took me down to the
22 hospital,
23
Q
Imd then you wel:e confused?
24
A
1 didn't knov.' wh,jt \I.-as ~3oing 011. I was
25 definiL(~ly confu,;c:d,
3,;
1
MR. KABUSK: No further questions.
2
MR, LAUER: Just a few, Your Honor, Could I
3 approach the witness, Your Honor?
4
THE COURT: Yes,
5 REDIRECT EXAMINATION
6 BY MR. LAUER:
7
Q
Sir, you were asked a series of questions,
8 and that one question was, were you operating a vehicle,
9 what was your answer?
10
A
I would say I probably said, yes, I had been
11
operating a vehicle,
.~
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12
THE COURT: I can't hear.
13
THE WITNESS: I would say I probably said,
14
yes, I had been operating a vehicle,
15
BY MR. LAUER:
16
Q Is there anything on here, on this sheet of
17
paper, where it asked if you were operating the vehicle at
,
,
i
j
18
the time the police officer pulled into 24th Street?
19
A It says here, where were you going? The
20 answer is, drove from New York and got here about eleven.
21 What street or highway were you on? Route 81. Direction of
22
travel? South from
I assume that's Syracuse, but I don't
23 know that. I can't really read it, what time is it now? I
24 said, ten of four,
25
Q
They didn't ask you i:lny specific questions on
35
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1 here about driving in Camp Hill, correct?
2
A
'rhac's correct, sir.
3
MR, LAUER: That's all the questions I have,
4 Your Honor.
5
MR, KABUSK: Nothing further, Your Honor,
6
MR, LAUER: The defense would rest, Judge,
7 BY THE COURT:
8
Q
What is your education, sir?
9
A
I have a high school diploma and a couple of
10 years of college and a lot of technical training.
11 Q What do you do?
12 A I'm an engineer with Sargent & Lundy out of
13 Wilmington, Delaware.
14 Q What kind of engineer?
15 A Right now, I'm doing mechanical engineering
16 work for Limerick Nuclear Station in Pottsville,
17 Pennsylvania -- or Pottstown.
18
Q Are you a manager?
A Not right now,
Q Are you a hands-on worker? Exactly what is
the level of your responsibility?
19
20
21
22
A
Just an engineer, writing modifications for
23 some fire protection work they'l-e doing at Limerick.
24
o
Dec,cl-ibe the nature of your work,
I'm trying
2"
.:l
to find out if you work in a room where you don't see other
36
.,
,;.,',...,.
1 people, you don't have to deal with people, or whether you
2 are out and about and discussing things with other educated
3 people and making decisions, Where do you fit in here?
4
A
Well, right now, what I do is I'll be
5 assigned an ECR, an engineering change request, that
6 identifies a problem with installation of a fire protective
7 coating to be placed on certain systems that --
8
Q
I don't need the technical aspects of putting
9
things on paper,
I'm interested in your dealings with other
10 people.
11
A
I go up there and do a walk-down with some of
12 the people so we can identify what the problem is, Then I
13 go back to the office and go through t.he manuals and t.he
14 regulations and determine a fix and then write up the fix In
15 the computer and submit it for approval,
16
Q
So, you pull into the driveway, Ms, Lund
17 parks the car, and at what point while you're still in the
18 car do you see the cop car come up?
19
A
I saw the cop car as we made our turn into
20
the driveway,
If I could see that drawing, I could explain
21 it to you.
22
MR, LAUER: Can you tell the judge what's on
23 the document,
24
THE \oJITNESS: Your HOllOl', this is 24th
25
Stnoct.
21tll St.rcet comes iZltO ]JjrlcolJl, 23rd Street is, of
37
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1 course, down at the other end of the block, Our house is
2 right there on the corner, Our garage is a detached garage,
3 The house next to us protrudes beyond our garage, and then
4 there's a big tree here, As we were making the turn corning
5 down Lincoln Street -- and I'm not sure if I noticed or
6 Linda noticed -- but blue lights carne on as the car came
7 around this -- blue or red lights, or whatever they are,
8 came on.
9 BY THE COURT:
10
Q
Let's move ahead a second, As the car you
11 were in came to a stop and the ignition was turned off, a
12 police car was in the area, is that true?
13
A
It was down here somewhere, yes,
14
Q
Where was it that you know?
15
A
We couldn't see him from here, All we saw --
16
Q
You sat in the car, and you could not see the
17 police car, is that it?
18
A No, That's right,
Q You got out of the car?
A Yes, sir,
Q \-vhat did you do?
A I just walked down to the end of the driveway
19
20
21
22
23 to see what was going on,
24
Q
h\:=ll?
25
A
And then
38
1
Q
Are you telling me .. you said you didn't see
2 the police car when you came to a stop,
3
A
Because the houses and the trees are in the
1 way, sir, You can't see,
5
Q
Okay, fine. You got out of the car,
6
A
Right,
7
Q
I don't understand, The police car just
8 appeared out of nowhere or what?
9
A
As I got down here at the tree area,
10
Q
Down where?
11
A
Down at the end of the driveway, As I
12 stepped around .- you know, at the top of the driveway at
13 the tree, the police car was about right here, next to this
14 house.
15
Q
Oh, you're telling me you had to walk all the
16 way from your car to the end of the driveway before you saw
17 the cop car?
18
A
y(~S, sir.
19
Q
How many steps is that?
20
MR, LAUER: Just use the courtroom for an
21 example,
22
THE WITNESS: Using the courtroom for an
23 example, I would say it's from here to that wall.
24
MR. LAUER: This wall right here?
25
THE WITNESS: No, the back wall,
39
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1 BY THE COURT:
2
3
4
~
^
Q
Approximately thirty feet?
A
Thirty, forty feet, yi>S, sir,
Q
Why did you walk to the end of the driveway
5 when there was no police car around?
6
Well, we seen the police car make -- his
A
7 lights come on around this corner here.
8
9
Q
So what?
A
Well, we figured he was probably stopping
10 because we didn't stop all the way for the stop sign or
11
something.
12
13
I don't know.
Q
What do you care? You're not driving.
A
Well, Linda is my fiancee.
I thought, well,
14
I'll just go out and talk to the cop.
I just assumed the
15 cop was going to stop and say, hey, you know, make sure you
16 stop next time or something on that order.
17
18
So, the car didn't go through the stop sign?
Q
A
I don't know, \~e came up to the stop sign,
19 and we made the turn and -- Linda was driving,
You don't know whether it went through the
20
Q
21 stop sign, is that what you're telling me?
22
I don't know that it did or not, but I just
A
23 assumed that -- it was late at night, We were the only
2,1
vehicle 011 tIle road w}leJl tllal car came aro\lnd the corner.
] didn't know what it was
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1 about,
2
Q
For what reason? Why was it for you?
3
A
It's a quiet neighborhood,
It's a
4 residential neighborhood,
5
Q
Why? What had you done wrong?
6
A
I don't know,
I didn't do anything wrong.
7
Q
So, the car did go through the stop sign or
8 did not go through the stop sign?
9
A
I don't know. You'll have to ask Linda that.
10 I don't know,
11
Q
Okay.
12
A
But, you know, I mean --
13
Q
Where was Ms, Lund when you walked to the end
14 of the driveway?
15
A
Well, she was in the car when I walked down
16 to the end of the driveway,
17
Q
All right, As you walked to the end of the
18 driveway, thirty feet away, where was she?
19 A Well, she was - - she was in the car when I
20 had left, When I came back, after I talked to the
21 patrolman, and after the other patrolman stopped --
22
Q
Where \..,as she?
23
A
When we got back up there, she was in the
24 driver's seat, going through the glove compartment, getting
25 some information out,
41
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2
Q
She kind of stayed in the car the whole time,
3
is that what you're telling me'?
A Yes, sir,
Q Looking for the proper cards?
A Yes, sir, as far as I know, When I was
4
5
6 walking down the driveway, I wasn't turning around to see
7 what she was doing, I was going down to see what the cop
8 was doing.
9 Q As you got to the tree, what did you do?
10 A I stepped out. If you look where I drew the
11 tree, Your Honor, it's right at the corner of our driveway,
12 As I stepped out -- the patrol car was somewhere, you know,
13 down in this area -- and he saw me step out from behind the
14 tree, and he stopped, And then I thought, oh, he's pulling
15 over here, so I stepped back in the driveway,
16 Q Then what?
17 A Then he pulled up, and I asked him what the
18 problem was. And then I think another patrol car pulled up,
19 they talked to each other, and then the second patrol car
20 left,
21
22
23
24
Q
A
You asked the officer, Officer Cornelious --
Yes, sir, I think it was him,
__ you asked him what the problem was?
Q
1\
Yes.
2S
Q
\,hat did he t('ll you?
42
1
2 in answer,
3
4 say any words?
5
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i'~!I\~
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~
A
I don't think he said anything specifically
Q
He didn't say, good evening, sir; he didn't
A
I think he told me to get back to -- on the
6 sidewalk or something of that nature,
7
8
Is that all he said?
Q
A
That's all I can recollect now, That's when
9 the second patrol car pulled up,
Then the two officers talked apart from you?
Q
A
Yes, sir,
10
11
12
13
14
15
16
17
Q
One left?
A
Yes, sir,
Q
And Cornelious came back to you?
A
Yes, sir.
Q
What did he say to you?
A
He asked to see my driver's license and
18 insurance card and whatever, owners card, so I went up to
19 the car and I asked Linda to -- first I gave him my driver's
20 license from my vehicle,
21
You are thirty feet away from the car, still
Q
22 at the end of the driveway?
23
24 sir.
2S
-
WJ1cn he asked [or my driver'S license, yes,
A
Q
You had to walk thirty feet back to car?
43
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them to him,
Q
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2
3
4
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7
8
Yes, sil^,
Was the cop with you?
Yes, sir,
He walked back to the car?
Yes, sir,
Did he get these cards from Ms. Lund?
No, Ms, j.und gave them to me, and I handed
12 the officer, is that it?
13
14
15
16 of--
17
18
19
No, We are at the driver's door,
A
Q
Did Ms, Lund say anything to the cop?
The first thing she pulled out was some kind
A
Q
Sir, did she say anything to the cop?
A
No, nothing,
Q
Did you say anything to the cop as in what do
20 you want with my license?
21
22
23
I did ask him, you know, what --
A
Q
What did he say to you?
A
He said something about pulling over in the
24 left lane on 24th Street and what he mentioned earlier about
25 slowing down for a stop sign,
4,1
IJ.'.."
.
1
A
At the end of the test, he said he's going to
2 take me down and have a blood test,
3
Q
You don't remember him saying anything to you
4 about putting you under arrest, is that what you are telling
5 me?
6
A
At that time, no, sir,
7
Q
At that time, When did you realize?
8
A
After I refused to take the blood test, Then
9 he was saying I was driving under the influence, And, you
10 know, by that time, I didn't know what was going on.
11
Q
Sir, are you telling me when the officer
12 handcuffed you behind your back -- is that true, behind your
13 back?
14
A
Yes, sir, but he said he has to do that to
15 take me in.
16
Q
He put you in the back of the police car,
17 holding your head so you wouldn't bump youn;elf?
18
A
Yes,
19
Q
You see them do that on TV, don't you?
20
A
Yes,
21
Q
You didn't realize you were under arrest?
22
A
I realized that I was in trouble of some
23 sort, but I had no idea what it was,
24
Q
How n13ny L j mcS have you seen that on TV,
25 wl1er..:: tlh~Y put Gomeone in the car 1 ike tb3t with handcuffs
4 f)
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1 and hold their head to make sure they don't get bumped?
2
A
Plenty of times,
3
Q
You realize people are under arrest watching
4 the TV shows, don't you?
5
A
I guess,
I don't know,
I guess they're
6 under arrest, But he told me we were going down to get a
7 blood test and he had to handcuff me to put me in the car,
8
Q
You are in the car, and the cop was ready to
9 drive?
10
A
Right,
11
Q
Is that the point where you told him, hold on
12 here, Ms, Lund was driving the car, not me?
13
A
I didn't say anything, because at this time
14 he had given me a lot of hell out on the street about
15
Q
wait a second.
It looks like you're in
16 serious trouble here, I think I'm going to tell him, hold
17 on, Let's get Ms, Lund. She was driving the car,
18
A
I didn't realize that at the time.
I had no
19 idea why he
20
Q
You didn't tell him?
21
A
Except I didn't do well
22
Q
You didn't tell him that, is that what you're
23 telling me?
24
A
He never asked me,
I didn't know what was
25 going on,
47
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1 Q Sir, I'm just asking what you did,
2 A All right,
3 Q As an educated man, I think you would do that
4 at that point. Did you say to him, please stop a minute, go
5 up and get Ms, Lund, she was driving the car?
6
A
No, sir, because at this time
again, I
7 didn't know what it was about, but I thought he was --
8
Q
Sir, when you got to the hospital, did you
9 say to the officer early on in the game, please call Ms,
10 Lund and have her come over here, she was driving the car?
11
A
No, sir, because nobody said --
12
Q
I don't care why you didn't do it,
I'm just
13 asking you if you did do it,
14
A
No, I did not, I actually thought he was mad
15 at me for something and he was getting me for public
16 drunkenness or some charge that I had no idea what it was
17 about. So I thought, I'm going to keep quiet until I get an
18 attorney,
19
THE COURT: Unless anyone has anything else,
20 you may step down,
21
MR. LAUER: Just a few questions,
22 REDIRECT EXAMINATION (Cont'd,)
23 BY MR, LAUER:
24
Q
The judge brought up questions about why you
25 didn't start to talk to the officer and say Ms, Lund was
48
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7
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20
21
22
23
24
driving the car, The words you used is that you thought you
were in some kind of trouble, correct?
A I really didn't know what was going on, I
went out to meet the officer to see, you know --
Q The officer handcuffed you, right?
A Yes,
Q You told the judge for whatever reason, you
didn't know what for, but you were being handcuffed, You
were in trouble for something, right?
A Yes, sir,
Q In your lifetime experience, when the judge
asked you about watching TV shows and things, what's the one
thing you've learned about once you're in trouble and you're
being handcuffed -- what's the one thing you learned about
opening your mouth or shutting your mouth? what's the one
thing you've learned?
A To have an attorney present; to get an
attorney's, you know, legal advice.
Q To advise you of your rights?
A Yes,
Q That's what you wanted, correct?
A Yes. Yes, sir.
Q Today is the first opportunity you've had a
chance to tell anyone what happened out there, correct?
25
A
Vf:G, !3l1".
,19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
{iN;.~r:'
'+
Q Do you think it would have made any
difference with the officer if you would have told him that
Ms, Lund was driving the car?
A I don't know, Your Honor, I mean, I just
THE COURT: YoU can speculate on that all you
want, sir.
I just know that the officer,
THE WITNESS:
for some reason, got angry.
BY MR. LAUER:
Q When you were at the scene, was that officer
in control of the situation? Was he controlling everything
that was going on there?
A Yeah. I mean, he was telling me what to do,
if that's controlling,
Q As a result of that, did you feel like you
didn't have much of an opportunity to even explain your
situation there?
A I was not asked to explain anything,
told to do things,
Q I see, You weren't asked to explain
anything; you were just told what to do, correct?
A Yes, sir,
I was
~1R, LAUER: That's all the questions I have,
sir.
THE COURT: You may step down, sir,
25
50
~';
1 MR, LAUER: The defense would rest, Your
2 Honor.
3 MR. KABUSK: I would like to recall Officer
4 Cornelious,
5 THE COURT: You are still under oath, sir,
6 PTL. WARREN SCOTT CORNELIOUS
7 recalled as a witness in rebuttal,
8 having been previously sworn, testified as follows:
9 DIRECT EXAMINATION
10 BY MR. KABUSK,
11 Q Officer Cornelious, you heard Mr, Chwastyk's
12 testimony, I'd like to once again ask you some questions
13 regarding the stop, Starting from the time that you stopped
14 your police vehicle, could you tell us what happened?
15 MR, LAUER: Objection. That's not proper
16 rebuttal. He's already testified to what he observed.
17 THE COURT: If counselor doesn't ask you
18 this, I'm going to ask him myself, Mr. Lauer, I've got two
19 stories here that I can't reconcile. One of them is true,
20 and one of them is not true, I'll make a finding after this
21 testimony. Go ahead, You pulled your car and stopped it at
22 some point?
23 THE l-JITNESS: I pulled --
24 THE COURT: ~lr, Chwastyk has made a drawing
25 or a map there that you can mark with a blue pen where you
51
1"""\
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1 stopped your car,
Is that diagram accurate enough
2
THE COURT:
3 for your purposes?
4
THE WITNESS: Yes, Your Honor,
5
THE COURT: Hold it up so they can see,
6 BY MR, KABUSK:
Would you tell the Court what happened after
7
Q
8 you stopped the car?
9
A
Actually, the nose on my patrol car was
10
actually blocking their driveway,
I stopped the vehicle.
I
11 observed Mr. Chwastyk, the driver's side door open, Mr,
12 Chwastyk stumbled out of the vehicle and grabbed the
i.~
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I
13
driver's side door as if to catch his balance.
14
Q When you said he stumbled out of the vehicle,
15
what door did he stumble out of?
16
A He came out of the driver's side door of the
17
white Ford Explorer,
18
Q Where was the other passenger?
19
A In the front passenger's seat of the vehicle,
20 I met Mr. Chwastyk. He was walking down the driveway
21 towards me. I identified myself. Good morning, sir. May I
22 see your driver's license, registration and insurance card.
23 Mr, Chwastyk then became argumentative with me, stating that
24 they we were on -- aren't you aware I'm home? I'm on
25 private property, You hav0 no right to be on private
r ~)
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1
property,
I said, well, do you live here? At that time he
2
advised me that he did live there.
I again asked him for
3 his information. He still advised me that he was on private
4
property,
I said, well, sir, I need to verify that you do,
5 in fact, live here. At that time is when he provided me
6 with his Pennsylvania driver's license,
7
Q
Where did he provide you with the driver's
8 license? Where were you standing when this conversation
9 took place?
10
A
We were probably in the middle of the
11 driveway, to the rear of the white Ford Explorer, because he
12 had met me coming -- he was walking down the driveway as I
13
was approaching the driveway.
I asked him -- after
14 obtaining his driver's license, I asked him for his
15 registration and insurance card. He advised me that it was
16 Linda Lund's vehicle and he had to get that from her, We
17 walked to the driver's side of the door, which was still
18 open. Mr. Chwastyk leaned in, spoke to Ms, Lund, who was in
19 the passenger's seat of the vehicle, He said something to
20 the effect of, the cop needs the registration and insurance
21
card.
She then handed it to him. He, in turn, handed it to
22 me. At that time, Ms, Lund exited the passenger's side of
23 the vehicle and entered the house via the -- there's like a
24 glass enclosure between the door of the garage and the
25 house, and she stood at thLlt glass enclosure, and she was
, -
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2
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4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
....-,
yelling at me.
Q Then where did you go?
A At that time, I asked Mr. Chwastyk to come
down back onto Lincoln Street, which was a flat, level
surface.
THE COURT: Well, we don't have to go back
over that again,
MR. KABUSK: No further questions, Your
Honor,
CROSS-EXAMINATION
BY MR. LAUER:
Q Sir, the testimony that you just gave about
Linda Lund getting out of her car and going back into the
house, was that documented in any official report?
A I don't recall if it is documented or not.
Q In fact, in your affidavit of probable cause,
you make no mention of that at all, isn't that true?
A That's true.
Q In fact, in your affidavit of probable cause,
you make no mention at all about her being argumentative
with you, isn't that true?
A I never spoke with Ms, Lund,
Q You make no mention of her yelling or saying
24 sonmlhing to you inside this part of the house, correct?
25 A In the affidavit?
54
........^'<.
1
Q
Yes,
2
A
No.
3
Q
Is it documented anywhere else in any police
4 report?
5
A
I don't recall if it is in my report or not,
6 because I wasn't even sure that she is Linda Lund,
7
Q
Okay, Is there a big tree in that yard which
8 obscures one's view of that driveway?
9
A
I don't recall,
10
Q
You don't even recall that?
11
A
I don't recall a big tree, no,
12
MR, LAUER: That's all the questions I have.
13
MR, KABUSK: Nothing further, Your Honor.
14 BY THE COURT:
15
Q
Whatever Ms, Lund may have said to you, did
16 she tell you at any point before you left the residence that
17 she h3d been driving the car from Kokomo's, or wherever it
18 came from, to the point where it stopped?
19
A
No, Your Honor,
She was standing inside this
20
glass enclosure. She was yelling.
I could not hear what
21 she was yelling, I never had any face-to-face contact with
22 her.
23
Q
At the time you were at the passenger's door,
24 you would have been very close to her, would you not?
25
l\
T was never at t11c pass-cDger' G door, Your
55
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',' ...., , , ..' ~ . :"'.,~~,' ,. ,'. ,:"'. '".~ ,'~'" .... .'~ ,'.," ':.'.:,
1 Honor, We returned to the open driver's door, at which
2 time--
3
Q
Pardon me, the driver's door, I got that
4 confused, As you were at the open driver's door, you were
5 no more than four or five feet away from her, just as you
6 and I are?
7
A
Yes, sir, Your Honor,
8
Q
Did she say she had been driving the car at
9 that point?
10
A
She did not say anything to me, Your Honor,
11
Q
The Defendant says that the car was parked
12 about thirty feet from the entrance to the driveway, and he
13 estimates that to be from where you are to that back wall,
14 Would you agree that it was approximately thirty feet from
15 the end of the driveway to where the car was parked?
16
A
I'm not good at judging distances, but I
17 believe, yeah, the vehicle was probably parked with its nose
18 at the front of those doors, the vehicle protruding
19 backwards, This was probably the entire length of the
20 driveway, yes,
21
Q
\~hat do you mean the doors? Do you mean the
22 swinging doors?
23
A
The nose of the vehicle was probably at the
24 exit sign, and then the vehicle protruded back towards
25 Lincoln Street, So, this probably was the distance of the
56
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1 driveway, but the vehicle was sitting in the driveway,
2
Q
Well, I want to ask you, at what point in the
3 driveway did you and the Defendant meet?
4
A
I would say halfway.
5
Q
Whatever the distance was, it was halfway?
6
A
Yes, Your Honor,
9
THE COURT:
MR, LAUER:
MR, KABUSK:
THE COURT:
MR. LAUER:
Linda Lund in rebuttal,
Anybody have anything else?
7
8
No, sir,
No, sir,
10
You may step down,
11
Your Honor, I would like to call
12
THE COURT: Okay,
14 LINDA LUND
13
15 recalled as a witness in surrebuttal,
16 having been previously sworn, testified as follows:
17 DIRECT EXAMINATION
18 BY MR, LAUER:
19
Q
Ms. Lund, you've just heard the police
20 officer testify here the second time up. Did you hear that?
21
A
Yes.
22
Q
Did you ever leave the vehicle, like the
23 officer testified to, and go in the house?
24
II
] never went in the house,
I got out of the
25 driver's side of the car and walked around the front of the
5'/
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1 car while Joe was walking to the end of the driveway and got
2
in the passenger's side to get the information out.
I never
3 went into the house,
4
Q
The officer testified that at some point you
5 went in there and you were yelling out at him, Did you do
6 that?
7
A
No.
B
Q
From a time standpoint, the officer testified
9 that he had been three car lengths behind your vehicle at
10 the time you were operating your vehicle,
14
A
Q
have seen his
car?
A
Q
A
Q
19 Mr, Chwastyk didn't tell the police that you were driving.
20 Why didn't you run up and say, Officer, I'm driving, I'm
21 driving?
22
A
Because I had had a couple glasses of wine
23 and a beer, and I wasn't -- I didn't really want to put
24 myself in that position, and I didn't think there was any
25 big trouble going on.
58
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1
Q
How long have you lived in this house?
2
A
About five years,
3
Q
Camp Hill, my office is over there. Is Camp
4 Hill a neighborhood where people tend to, like, pay
5 attention to what's going on in the neighborhood?
6
A
Yes,
7
Q
Is it unusual for people to, like, walk out
8 and maybe look to see why a police officer is coming by at
9 that time of the night?
10
A
No, of course not,
11
Q
Did the officer ever ask you if you were
12 driving the car?
13
A No,
MR, LAUER: That's all the questions I have.
MR. KABUSK: Nothing, Your Honor,
THE COURT: Thank you, ma'am. Anything else?
MR. LAUER: No, sir,
THE COURT: Are you done?
MR, KABUSK: Yes, sir,
THE COURT: Close the record for the
14
15
16
17
18
19
20
21 argument,
22 (Argument was held off the record.)
23 (The following Order was entered by the
24 Court: )
25 "AND NO\'I, this 22nd day of 11arch, 1999, after
59
.. -r-:
iiliiUl.';
1 hearing and consideration of the t.estimony presented, we do
2 find that the Appellant was properly apprised of his right.s
3 in respect to the taking of a chemical test and given the
4 proper DL-26 warnings; and the Defendant nevertheless
5 refused to take the test.
6 "During the course of oral argument,
7 Defendant's counsel withdrew his claim that no reasonable
8 basis existed to request the Appellant to submit to the
9 chemical test; nevertheless, the evidence would have
10 supported the request,
11. "We find that even if we give the Appellant
12 the best interpretation possible to the evidence presented,
13 nevercheless the officer had a reasonable basis to request
1.4 the test. (By this ruling, the Court does not indicate that
15
1.6
1.7
18
1.9
20
21
22
we accepted the testimony presented by the Appellant.)"
THE COURT: Anything else?
MR. LAUER: No, sir.
THE COURT: Anything else?
MR, KABUSK: Nothing further.
(Court was adj ourned, )
23
24
")c..
GO
;" 'l
""""'.
~ERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
same.
I '-, , '
/.. I ) I /J (' c. ,
~f(; il/I 1(,( !J< .1 i- IC-~ '_/
Susan Rice Stoner
Official Stenographer
---------------------------~------
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed
to be filed.
~! 9 , ,qq?-
() 1
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