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Home My WebLink About01-0264 FX of. CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: STEPHEN M. SYMONS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING NO. 01-264 CIVIL TERM 1007 CD 2001 The documents comprising the record have been numbered from No.1 to 79 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6"" Z 6 ~ 0 1. An additional copy of this certificate is enclosed. Please si2n and date copy, thereby acknowled2in2 receipt of this record. Date Signature & Title or', ~ ~,,- -" ~-1 ' ... ; PAGE N). 2 - 9 1 : 10 11 - 14 15 16 18 19 - 21 22 -72 73 - 78 79 "1 ,'" ~.~_ [[ Cumberland County Prothonotary's Office Civil Case Inquiry 2001-00264 SYMONS STEPHEN M (vs) PENNSYLVANIA COMMONWEALTH OF Page 1 PYS510 Reference No..: Case Type.....: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ----~------- Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/12/2001 3:00 0/00/0000 0/00/0000 1007 CD 2001 ******************************************************************************** General Index Attorney Info SYMONS STEPHEN M 16 NORTH WHARF ROAD BOWMANSDALE PA 17008 PENNSYLVANIA COMMONEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 1102 SOUTH FRONT STREET HARRISBURG PA 17104 2516 APPELLANT HERSHEY DAVID E APPELLEE ******************************************************************************** * Date Entries * ******************************************************************************** - - - - - - - - - - - - - FI RST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- ORDER OF COURT - DATED 1/22/01 - IN RE LICENSE SUSPENSION APPEAL - HEARING SET FOR 3/30/03 AT 9:30 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 1/22/01 ------------------------------------------------------------------- 4/03/2001 ORDER - DATED 4/3/01 - IN RE APPEAL FROM LICENSE SUSPENSION - THE COUR FINDING THAT THE ARRESTING OFFICER DID NOT HAVE REASONABLE GROUNDS TO BELIEVE THAT THE MOTORIST WAS UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE THE APPEAL OF STEPHEN M SYMONS FROM THE SUSPENSIONS OF HIS DIRVER'S LICENSE IS SUSTAIND AND THE ACTION OF THE COMMONWEALTH OF PA IS REVERSED - BY THE COURT KEVIN A HESS J COPIES MAILED 4/4/01 ------------------------------------------------------------------- 4/26/2001 NOTICE OF APPEAL TO COMMONWEALTH COURT THAT WAS FILED 4/3/01 BY TIMOTHY P WILE ATTY FOR APPELLANT ------------------------------------------------------------------- 4/30/2001 ORDER - DATED 4/27/01 - IN RE APPEAL - APPELLANT IS DIRECTED TO FILE OF RECORD WITHIN 14 DAYS HEREOF AND SERVE UPON THE UNDERSIGNED A CONCISE STATEMENT OF THE MATTERS COMPLAINED OF ON THE APPEAL - BY KEVIN A HESS J - COPIES MAILED 4/30/01 ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1007 CD 2001 ------------------------------------------------------------------- STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - TIMOTHY P WILE - ASST COUNSEL IN-CHARGE ------------------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT KEVIN A HESS J ------------------------------------------------------------------- OPINION AND ORDER - DATED 6/15/10 - BY THE COURT KEVIN A HESS J COPIES MAILED 6/15/01 - - - - - - - - - - - - - - LAST ENTRY Brief and Exhibits ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adl End Bal * ************************************************~******************************* 1/12/2001 1/22/2001 5/01/2001 6/07/2001 6/15/2001 6/15/2001 APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 .50 5.00 5.00 30.00 35.00 .50 5.00 5.00 30.00 .00 .00 .00 .00 .00 75.50 75.50 .00 ******************************************************************************** ., '" Commonwealth Court of Pennsylvania G. Ronald Darlington, Esq. Executive: Administrator June 19, 2001 P.O. Box 11730 Harrisbun!. PA 17108 717-255-1602 The Honorable Kevin A. Hess Court of Common Pleas of Cumberland County One Courthouse Square Carlisle, PA 17013 RE: Symons v. DOT No.: 1007 CD 2001 Lower Court/Agency Docket Number: No. 01-264 Dear Judge Hess: This notice is being sent to you under the requirements of Pa. RAP. 1935(a), as we are obligated to inform you that the record in the above-captioned matter has not been received by the Commonwealth Court. Pursuant to Pa. RAP. 1931, the record was due on June 5, 2001 (40 days after filing the appeal). We are aware of the heavy workload borne by your court and your prothonotary or clerk of court's office. However, if the record is not received within 20 days of this notice, and a "satisfactory explanation of the delay is not given," we are required to notify the Administrative Office of Pennsylvania Courts of the delay in the transmission of the record under Pa. RAP. 1935(b). In the event the delay has been caused by Appellant's failure to order or pay for the transcript or Appellant's failure to file a Rule 1925 statement of matters complained of, please promptly advise me and this Court will enter an appropriate order. Thank you very much for your assistance in seeing that the record is transmitted as soon as possible. Very truly yours, /~ G. Ronald Darlington Executive Administr /clmf cc: The Honorable George E. Hoffer, President Judge Court of Common Pleas of Cumberland County Mr. Charles R. Hostutler, Deputy Prothonotary/Chief Clerk r_~ij ~ ~ _ , I ~ . " ~~ IN THE COMMONWEALTH COURT OF PENNSYL VANIA Stephen Symons v. No. 1007 C.D. 2001 SUBMITTED: October 26, 200 I Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE JAMES GARDNER COLINS, Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE EMIL E. NARICK, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE NARICK FILED: January 18, 2002 The Department of Transportation, Bureau of Driver Licensing (Department) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) that granted the appeal of Stephen Symons . (Licensee) from a one-year suspension of his driver's license for his refusal to take a second chemical test under Section 1547(a)(I) of the Vehicle Code.! We affirm. 1 75 Pa. C.S. S 1547(a)(I); Department of Transportation. Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). Under this law, the Department is required to suspend a licensee's driver's operating privilege for one year for refusing a police officer's request to submit to chemical testing. rd. '~-~ rl .~ p . \f~ , ~" "" ,- ~-, - -" ~ -,~" -.-..". This case arose out of an incident that occurred late in the evening of November 1, 2000. A police officer of the Lower Allen Township Police Department (officer) responded to an accident involving a car that had been driven into a ditch. When the officer arrived, Licensee was still behind the wheel. The officer helped Licensee in exiting the car and noticed that he was somewhat disheveled, staggered in his walk and had bloodshot and watery eyes. The officer detected an odor of alcohol on Licensee's breath and described his speech as "mushy, it all blended together at times." RR l7a. Licensee indicated he had been coming from a local steakhouse in Harrisburg and was on his way to his house in Bowmansdale. The officer realized Licensee's car was not facing the direction to be going home and asked Licensee to perform some field sobriety tests. On the walk-and-turn test, Licensee took too many steps, missed the heel-to-toe and was off the line. The officer did not attempt the one-leg stand, but decided to take Licensee to the booking center for a breath test. The officer then returned to the scene of the accident. There, the officer found some prescription instruction sheets in the car, a prescription receipt for $61.77 dated November 2, 2000, an advisory sheet from the pharmacy for a drug called Ambien, but found no medication. While waiting for the tow truck to arrive, the officer took a telephone call on his cell phone from an agent at the booking center that advised him that Licensee's blood 2 l~ , ,_,,,",,_, r- -",~~-,.~'" ~.~- :- ~I3>M!"~~, ~ ~ !MlIr. 7 _!lIIIIB~~~~_:J;;;W"-F_;:'''r,c't;;''')1'''''''0i,,_g-4':%m,>:.,\~'~~ti!MiW,"'lWl'lf~!llf;lI~f~ji!!;j,~~~~ alcohol level registered at an extremely low .018 percent on the breathalyzer test. The officer returned to the booking center and explained to Licensee that, given the low blood-alcohol reading and his own observations, he felt Licensee was "under the influence of things other than alcohol." RR 37a.Heasked Licensee to accompany him to the hospital for a blood test. Licensee explained that he was tired, that it was late and that he did not want to go to the hospital. Licensee signed the Department's DL 26 form indicating that he refused to take a blood test. At the hearing before the trial court, the officer testified that he did not know what Ambien was; nor did he know whether or not it was a controlled substance under the Controlled Substance, Drug, Device and Cosmetic Ace He testified that Licensee had explained the accident by saying that he had fallen asleep. In its opinion, the trial court reviewed the law that, in Pennsylvania, if the police officer requests more than one chemical test, he must offer sufficient evidence that establishes the reasonableness of such a request. Pennsylvania Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). The officer testified that he felt he had ample grounds to believe Licensee was under the influence of something other than alcohol. Nevertheless, after reviewing 2 Act of Aprill4, 1972, P.L. 233, as amended, 75 P.S. gg780-101-780-144. 3 '...~ " -,. ,.,., ~I" .t , ~ -~. ,~ .~ .. .~,"~,~'~" ~~.. "" - .- , Section 3731 of the Vehicle Code,3 the trial court observed that all references to a licensee being under the influence of something other than alcohol were to being under the influence of a controlled substance. The trial court concluded this case was controlled by Pennsv1vania Department of Transportation. Bureau of Driver Licensing v. Penich, 535 A.2d 296 (Pa. Cmwlth. 1988). The trial court found determinative this Court's observation in Penich that there was no testimony indicating that the officer suspected that the tablets found on Licensee's person were controlled substances, but merely [were] a prescription drug. Rather, it appears that the police officer, having failed through the two breath tests to acquire enough evidence to raise an inference of Licensee's driving in violation of Section 3731(a)(4) of the Code, was seeking to "enhance the evidence and guarantee a conviction," precisely the sort of conduct proscribed by our Supreme Court. Penich, 535 A.2d at 299, quoting McFarren (emphasis in original). The trial comt decided that the officer must have reasonable grounds to believe that Licensee was operating a vehicle "under the influence of a controlled substance, and not merely some sort of medication." Trial Ct. Op. at 5 (emphasis in original). Here, the trial court concluded there were no such reasonable grounds and determined the suspension of Licensee's operating privilege for his refusal to take a blood test after he had already submitted to a breatha1yzer test was improper. 3 Section 3731 defines the offense of "Driving under the influence of alcohol or controlled substance." 75 Pa. C.S. g373 1. 4 ['- c. ."_~ ",.,. __,..JI'IJlIUiJfr '1lil'fTI "__./MIl~11\1i~ ri'!L ~_,~ L.",,,,, ~_ :"r,~i;f.Ji]Il\"~1"",r""1"'''''';F'I"''PI;''';iFiii'Fl'i~ljJffilili-~WI';!~~_~~~~! On appeal to this Court,4 the Department argues that the credible testimony of the arresting police officer satisfied the Department's prima facie burden of proof. Banner, v. Department of Transportation. Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).5 In particular, the Department , ' contends the officer'stestimoriy established that Licehsee was under the irifluence of some type of substance that made him unable to drive safely. After Licensee's breath test showed a very low level of alcohol in his system, it was reasonable for the officer to conclude he was under the influence of something else, likely a controlled substance. The Department asserts that the officer's request for a second chemical test, this time of Licensee's blood, was reasonable and also cites McFarren for a summary of when a request for a second test is reasonable. A second test may be proper if the first test was inconclusive due to either faulty equipment or faulty performance by the individual. . . . However, requiring a blood test after completingabreathalyzer solely to enhance the evidence and guarantee a conviction is not "reasonable" under Art. 1 98 of our Constitution. McFarren, 514 Pa. at 35; 525 A.2d at 1188. 4 Our ~cope of review in a license suspension appeal is limited to determining whether findings of fact are supported by substantial evidence, or whether the trial court committed an error of law or abused its discretion. Breen v. Department of Transportation. Bureau of Driver Licensing, 771 A.2d 879 (Pa. Cmwlth. 2001). 5 The Department has the burden to prove (l) that Licensee was arrested for operating a motor vehicle while under the influence of alcohol or a controlled substance by a police officer who had reasonable grounds to believe he was operating a vehicle while under the influence of alcohol or a controlled substance; (2) was asked to submit to a chemical test; (3)refused to do so; and (4) was specifically warned that a refusal would result in the suspension of his operating or driving privilege. Id. 5 -"071 """"""! ;-,r_ "- c "".,.,< 1 . . .. ~ ~=~ ."'~. Licensee counters with the fact that here, there is no evidence of faulty equipment or performance by Licensee. He contends this Court's decision in Karabinos v. Department of Transportation. Bureau of Driver Licensing, 739 A.2d 601 (Pa. Cmwlth. 1999), is analogous and notes it also sets forth the requirements an officer must meet when requesting a second test after the first test yields invalid results. In Karabinos we held: Only if the licensee is informed why a second test is requested is he prepared to make that vital decision to comply with the test or to refuse. Because a licensee may iawfully refuse a reqaest for a second test, unless the licensee is informed of the reason why that right is no longer valid, he has not been provided an opportunity to give his informed consent to the request. Id. at 604. Though the Karabinos court does not state what words are to be used, the record statement here by the officer that "[ w ]hen I got the low results back, I explained to [Licensee] that I felt that he was under the influence of things other than alcohol," and "that was why I wanted to take him to the hospital for blood testing," RR 37, is short of the definitional requirements set forth in Sections 1547 and 3731 of the Vehicle Code. Section 1547 reads in pertinent part: Any person who. . . operates . . . a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood, or urine for the purpose of determining the alcohol content of blood or the presence of a controlled substance. . . . 75 Pa. C.S. ~1547(a)(emphasis added). Section 3731(a), subsections (1) and (2) define the DUI offense as: A person shall not drive, operate or be in actual physical control ofthe movement of a vehicle. . . 6 :" ....",..,.- ~ . ~ . ,~, ",' ,_ _~1'", ~1~!III!I~l!li!i!!I!"_~~",,,~~~~el!Jill'k'll~ .~ _M!P ~ __9. .~j!i!J>_~M;;liII!!<:'W""'-'~!"-'';<f'~''',nl'f;!i''-'':;;.m''fJ-~iI''jf;~_~1)j~~l!if'!M~1I!!I~l (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving. (2) While under the influence of any controlled substance, as defined in . . . The Controlle<.l Substance, ", Drug, Device, and Cosmt;:tic Act, to, a. degree which " 'renders the person incapable of safe driving. ' '. . , 75 Pa. C.S. s373l(a)(1)(2). No where in either statute is there a legal basis to take a person for blood testing who is suspected of being under the influence of substances other than a controlled substance or alcohol. We decline the Department's request that we overrule Penich. We also reject the Department's argument that we allow an officer to request a chemical test of blood if he has reasonable grounds to believe a licensee may be under the influence of a controlled substance or a prescription medication. Such an action is a legislative function. Our General Assembly has not deemed it appropriate to penalize peop~e who operate motor vehicles under the influence of prescription medication that is not otherwise a controlled substance. '. Accordingly, we affirm, 1"..~ V 1 ~~i~ EMIL E. NARICK, Senior Judge 7 -- ,~ ... ,.-, ,,.,-,. ',' , I . - ~ ~" .""." ,-', ._, """"'~"-"""~"=liIiJjr-'~'>-"'"'(f_"J"v,--';c--,:,,,,, IN THE COMMONWEALTH COURT OF PENNSYLVANIA Stephen Symons v. Jf 6/- ;. (,,4- ~ No. 1007 C.D. 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, o N ~ ORDER o c: s:: "'UGJ qJul .G:.... .J._ 2~ :Q;;,~ '-::0 < )>c 20' 5>c ~ ;..- "'" z ~ N f'" ,"'-, 'r.;:, , . ,"-, y Q ;:Li ::t C,C) tsrn --I ~ =< Appellant N N -a -,." ~ NOW, January 18, 2002, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby affirmed. 1'...,.,- R rza-u> EMIL E. NARICK, enior Judge Certified from the Record JAN 1 8 2002 and Order Exil ~I- '"_"~, "~ . '_'r_o__'.~ "~.'"" .,,~ -r'-",~ ", ,~~-~~,. ~"~~"... ~r _'IiI!~ __~__JlIffl~~IiIi\!ll''l',i'f\"~'''rf{'-1'--t'-T'VH~~i'-''''jlj,~;;lI''\if<\$JW.ffi~~~M~,m~~~_~~.. ,""JmI~ ;, IN THE COMMONWEALTH COURT OF PENNSYLVANIA Stephen Symons v. No. 1007 C.D. 2001 SUBMITTED: October 26, 200 I Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE JAMES GARDNER COLINS, Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE EMIL E. NARICK, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE NARICK FILED: January 18,2002 The Department of Transportation, Bureau of Driver Licensing (Department) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) that granted the appeal of Stephen Symons (Licensee) from a one-year suspension of his driver's license for his refusal to take a second chemical test under Section 1547(a)(1) of the Vehicle Code.l We affirm. 1 75 Pa. C.S. 91547(a)(1); Department of Transportation. Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (l996). Under this law, the Department is required to suspend a licensee's driver's operating privilege for one year for refusing a police officer's request to submit to chemical testing. rd. "~\ff__4, I" '"'; !l!i . ~<.-"' -" , ,~ IU III 1m j ~IJjjj'nnli'\l~tl,' This case arose out of an incident that occurred late in the evening of . November 1, 2000. A police officer of the Lower Allen Township Police Department (officer) responded to an accident involving a car that had been driven into a ditch. When the officer arrived, Licensee was still behind the wheel. The officer helped Licensee in exiting the car and noticed that he was somewhat disheveled, staggered in his walk and had bloodshot and watery eyes. The officer detected an odor of alcohol on Licensee's breath and described his speech as "mushy, it all blended together at times." RR 17a. Licensee indicated he had been coming from a local steakhouse in Harrisburg and was on his way to his house in Bowmansdale. The officer realized Licensee's car was not facing the direction to be going home and asked Licensee to perform some field sobriety tests. On the walk-and-tum test, Licensee took too many steps, missed the heel-to-toe and was off the line. The officer did not attempt the one-leg stand, but decided to take Licensee to the booking center for a breath test. The officer then returned to the scene of the accident. There, the officer found some prescription instruction sheets in the car, a prescription receipt for $61.77 dated November 2, 2000, an advisory sheet from the pharmacy for a drug called Ambien, but found no medication. While waiting for the tow truck to arrive, the officer took a telephone call on his cell phone from an agent at the booking center that advised him that Licensee's blood 2 !'f , ..- , w -. 1 ~ ,...,.,~.,.."..~!;>. """-r- _ "~,~~,.,...",.... _ _'"""',~ _~~i~'f,;?:"'-:"H''':''tn~j;~.-'t~'-,A~1'q@!i~~~~~~~r alcohol level registered at an extremely low .018 percent on the breathalyzer test. The officer returned to the booking center and explained to Licensee that, given the low blood-alcohol reading and his own observations, he felt Licensee was "under the influence of things other than alcohol." RR 37a. He asked Licensee to accompany him to the hospital for a blood test. Licensee explained that he was tired, that it was late and that he did not want to go to the hospital. Licensee signed the Department's DL 26 form indicating that he refused to take a blood test. At the hearing before the trial court, the officer testified that he did not know what Ambien was; nor did he know whether or not it was a controlled substance under the Controlled Substance, Drug, Device and Cosmetic Act.2 He testified that Licensee had explained the accident by saying that he had fallen asleep. In its opinion, the trial court reviewed the law that, in Pennsylvania, if the police officer requests more than one chemical test, he must offer sufficient evidence that establishes the reasonableness of such a request. Pennsylvania Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). The officer testified that he felt he had ample grounds to believe Licensee was 'under the influence of something other than alcohol. Nevertheless, after reviewing 2 Act of April 14, 1972, PL. 233, as amended, 75 P.S. 99780-101 - 780-l44. 3 .'''''fI'! ~ , ~ .., r-, -;'-, 'ifli .. ._,- --"'~"",;"~,"",-",,,-,,<~,-~-~- ~,-,~,." - I ' I iUUrr~l': '""rl Section 3731 of the Vehicle Code,3 the trial court observed that all references to a licensee being under the influence of something other than alcohol were to being under the influence of a controlled substance. The trial court concluded this case was controlled by Pennsylvania Department of Transportation, Bureau of Driver Licensing v. Penich, 535 A.2d 296 (Pa. Cmwlth. 1988). The trial court found determinative this Court's observation in Penich that there was no testimony indicating that the officer suspected that the tablets found on Licensee's person were controlled substances, but merely [were] a prescription drug. Rather, it appears that the police officer, having failed through the two breath tests to acquire enough evidence to raise an inference of Licensee's driving in violation of Section 3731(a)(4) of the Code, was seeking to "enhance the evidence and guarantee a conviction," precisely the sort of conduct proscribed by our Supreme Court. Penich, 535 A.2d at 299, quoting McFarren (emphasis in original). The trial court decided that the officer must have reasonable grounds to believe that Licensee was operating a vehicle "under the influence of a controlled substance, and not merely some sort of medication." Trial Ct. Op. at 5 (emphasis in original). Here, the trial court concluded there were no such reasonable grounds and determined the suspension of Licensee's operating privilege for his refusal to take a blood test after he had already submitted to a breathalyzer test was improper. 3 Section 3731 defines the offense of "Driving under the influence of alcohol or controlled substance." 75 Pa. C.S. 93731. 4 :;\ ~ " !I.~ _d' ~ I!II'!'J' _ ~!!'W!~,~ ,~, __4__ bJ,ii@>%~~fl'l;;;:''''''''Y'''''''0''4'''i''P''';'''",",RFltf''~W'iffl~~~~Itl~~_,,_ . . ;,..,~!IDfj On appeal to this Court,4 the Department argues that the credible testimony of the arresting police officer satisfied the Department's prima facie burden of proof. Banner v. Department of Transportation, Bureau of Driver Licensing, 558 Pa. 439, 737 A.2d 1203 (1999).5 In particular, the Department contends the officer's testimony established that Licensee was under the influence of some type of substance that made him unable to drive safely. After Licensee's breath test showed a very low level of alcohol in his system, it was reasonable for the officer to conclude he was under the influence of something else, likely a controlled substance. The Department asserts that the officer's request for a second chemical test, this time of Licensee's blood, was reasonable and also cites McFarren for a summary of when a request for a second test is reasonable. A second test may be proper if the first test was inconclusive due to either faulty equipment or faulty perfonnance by the individual. . . . However, requiring a blood test after completing a breathalyzer solely to enhance the evidence and guarantee a conviction is not "reasonable" under Art. I 98 of our Constitution. McFarren, 514 Pa. at 35; 525 A.2d at 1188. 4 Our scope of review in a license suspension appeal is limited to determining whether findings of fact are supported by substantial evidence, or whether the trial court committed an error of law or abused its discretion. Breen v. Department of Transportation, Bureau Of Driver Licensing, 771 A.2d 879 (Pa. Cmwlth. 2001). 5 The Department has the burden to prove (l) that Licensee was arrested for operating a motor vehicle while under the influence of alcohol or a controlled substance by a police officer who had reasonable grounds to believe he was operating a vehicle while under the influence of alcohol or a controlled substance; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the suspension of his operating or driving privilege. Id. 5 .,.,.,.., .-, ,f -, , " I - ~ [-' 1-" I" ~~"..".... IillI "".. e,"" ',"' '" "[!liner Ll lurVJ! rlfl'lif'r..' Licensee counters with the fact that here, there is no evidence of faulty equipment or performance by Licensee. He contends this Court's decision in Karabinos v. Department of Transportation. Bureau of Driver Licensing, 739 A.2d 601 (Pa. Cmwlth. 1999), is analogous and notes it also sets forth the requirements an officer must meet when requesting a second test after the first test yields invalid results. In Karabinos we held: Only if the licensee is informed why a second test is requested is he prepared to make that vital decision to comply with the test or to refuse. Because a licensee may lawfully refuse a request for a second test, unless the licensee is informed of the reason why that right is no longer valid, he has not been provided an opportunity to give his informed consent to the request. Id. at 604. Though the Karabinos court does not state what words are to be used, the record statement here by the officer that "[ w ]hen I got the low results back, I explained to [Licensee] that I felt that he was under the influence of things other than alcohol," and "that was why I wanted to take him to the hospital for blood testing," RR 37, is short of the definitional requirements set forth in Sections 1547 and 3731 of the Vehicle Code. Section 1547 reads in pertinent part: Any person who . . . operates . . . a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood, or urine for the purpose of determining the alcohol content of blood or the presence of a controlled substance. . . . 75 Pa. C.S. sI547(a)(emphasis added). Section 3731(a), subsections (I} and (2) define the DUI offense as: A person shall not drive, operate or be in actual physical control of the movement ofa vehicle. . . 6 '~"",.,y,. "e,. ",'~~ ,~ ." ~-- ~ ,- -', '_ - - ,." -'~~-1 "''i''''~ r)n_._~,.i,~~I1!!!fJtj~r."fJ!"i"~',ifi'i"''''''''U,'''",:<-, ~tt*,.w''-~':'lm!;~.~~",.._"" ~~'D,","',,", ,"~~~)~~~I\lIEl{~ .J ~]F IN THE COMMONWEALTH COURT OF PENNSYL VANIA Stephen Symons it 61-Jv~f--'~ v. No. 1007 C.D. 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER o &~ ve~ rTl[','-, :-':::';:1,] ~~; ~~~3 ..-" c:..: z =< o N n -Tl :..1 :J': :c... :;;;:1 1" (......; ~.LJ -.'~ 1::"" :'0 .1::" NOW, January 18,2002, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby affirmed. r ~ enior Judge iii\l ,- --,- ~"- '.'mJIl .. (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving. (2) While under the influence of any controlled substance, as defined in . . . The Controlled Substance, Drug, Device, and Cosmetic Act, to a degree which renders the person incapable of safe driving. 7S Pa. C.S. s3731(a)(I)(2). No where in either statute is there a legal basis to take a person for blood testing who is suspected of being under the influence of substances other than a controlled substance or alcohol. We decline the Department's request that we overrule Penich. We also reject the Department's argument that we allow an officer to request a chemical test of blood if he has reasonable grounds to believe a licensee may be under the influence of a controlled substance or a prescription medication. Such an action is a legislative function. Our General Assembly has not deemed it appropriate to penalize people who operate motor vehicles under the influence of prescription medication that is not otherwise a controlled substance. Accordingly, we affirm. :JT,..ll vl~c EMIL E. NARICK, Senior Judge 7 .. ~e,~~, _", ~_ I1llllf p~_~",?-, '~.y :,_,~t'1'~j;'C~^~-'P';l~"m~'~'lll'~~tri~j~\~i(!~~~~~~ir,![i!!!l_~ln~!fl COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER - THIRD FLOOR IIOI SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 VOICE: (717) 787-2830 TELEFAX: (717) 705- II22 ~ TIMOTHY P. WILE Assistant Counsel Jn~Charge Appellate Section g;:o :Jl:r>1 "'tJ: :1.:;=;' fT1 0,. 3=. :,;r:;..c.' X ~~~_T: !~:~~~~ t...- ;:c- ~ 0::2 :t'" or e"'" ;;xl<=> .... - u:> W N CD ..... :s:: - C) ,- July 17, 200l Mr. C.R. Hostutler, Chief Clerk Commonwealth Court of Pennsylvania Sixth Floor, South Office Building Harrisburg, Pennsylvania l7108 Re: Stephen Symons v. Department of Transportation, Bureau of Driver Licensing Commonwealth Court Docket Number 1007 C.D. 2001 Dear Mr. Hostutler: Please find enclosed the original record in the above-entitled appeal that the Department of Transportation, Vehicle & Traffic Law Division is returning to the Court. Please time-stamp a copy of this transmittal letter to indicate the Court's receipt of this original record. Thank you for your courtesy and consideration in this matter. Ve f~ TIMOTHYP. WILE Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division TPW/dmb Encl: Original Record PennDOT People. . . We Are Making A Difference! ~"""......" - ~ , ,?;~ ~ - .- ,. , (p-s -01 (7dhd {~C~ J~ lJ IlL D-~ k C~UL 6tik- ~~11~ , 7J' IJc ~k~_ ~~'~'~. ~, ~~ ~-"~ 1 ()a-~ II l~ {iJvJ C~~. LJ "'~, )L"" '~ jf~ -Sure ~ ~_L:t~ ~. -''''1I!!~W- ", J - , " ::'_: -:";,i. ;-- - -I --r-' ': '.' I c:~." -. ~1-'1 . . :9" --- 1 '\-~_. ~).- ""~''''ll"'"-''.M't.",....,..,,,,",,,,,,..... :~ ,~J.,,~ ''';''1'- ctJs CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLV ANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: STEPHEN M. SYMONS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING NO. 01-264 CIVIL TERM " ''''~., ...J 1007 CD 2001 ,., The documents comprising the record have been numbered from No.1 to 79 ,.:~d attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the nwnber of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6,",26 - 0 1 . ~- An additional COpy of this certificate is enclosed. Please si!!n and date copy, thereby acknowled!!in!! receipt of this record: Date Signature & Title '1111 ,'~ . .~ ~ ~r<!f.jg o o CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: STEPHEN M. SYMONS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING NO. 01-264 CIVIL TERM 1007 CD 2001 The documents comprising the record have been numbered from No.1 to 79 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, inclrding with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 6H'!6eOl. An additional COpy ofthis certificate is enclosed. Please sie:n and date COPY. thereby acknowlede:ine: receipt of this record. Date Signatnre & Title "'I!' _ 0 , 1-" " "~........" ;~ , '~---,-,---' " o o Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of to No. CUMBERLAND 1007 CD 2001 01-264 CIVIL TERM in the Commonwealth of Pennsylvania Term, 19 is contained the following: COPY OF COMPLETE DOCKET ENTRY STEPHEN M. SYMONS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING SEE ATTACHED CERTIFIED DOCKET ENTRIES. = '>'::...:l-'-~~-~~:!-- ,-, "T'- o o Commonwealth of Pennsylvania County of Cumberland 1 ss: I, Curt is R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Stephen M. Symons In TESTIMONY WHEREOF. I this ? 6th Plaintiff, and Comm. of PA. Deot of Transoortation. Bureau of Driver Licensing Defendant _, as the same remains of record before the said Court at No. 01-264 of Civi 1 Term, A.D. 19_. have hereunto set my hand and affixed the seal of said Court dr.r A. D., JrotlL.. Ibv' I, George E. Hoffer Pr dent Judge of the Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the r f' r. Commonwealth of Pennsylvania County of Cumberland } ss: Pre cot Judge I, Curt is R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable George E. Hoffer. P. J . by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 26th day of Jun A.D. I~OOl . ~ Prothonotary ~'~4L ., No. Term 19_ I I I i I I . ~ ~ ~ " " ~ ~' , ~,' No, Term 19_ Versus .- &1.'-' ~ ''i4,~# EXEMPLIFIED RECORD From County Debt, $ InL from Costs 4"'\ - Entered and Filed 19_ Prothonotary. PlIGE 1\0. 2 - 9 1 10 11 - 14 15 16 18 19 - 21 22 - 72 73 - 78 79 1-'" Cumberland County Prothonotary's Office Civil Case Inquiry 2001-00264 SYMONS STEPHEN M (vs) PENNSYLVANIA COMMONWEALTH OF PYS510 c () Page 1 Reference No..: Case Type.....: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: - - - -- - - -- - - - Case Comments - - - -- - - - - ---- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/12/2001 3:00 0/00/0000 0/00/0000 1007 CD 2001 ******************************************************************************** General Index Attorney Info SYMONS STEPHEN M 16 NORTH WHARP ROAD BOWMANSDALE PA 17008 PENNSYLVANIA COMMONEALTH OF DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 1102 SOUTH FRONT STREET HARRISBURG PA 17104 2516 APPELLANT HERSHEY DAVID E APPELLEE ******************************************************************************** * Date Entries . * ******************************************************************************** 1/12/2001 1/22/2001 4/03/2001 4/26/2001 4/30/2001 5/01/2001 6/07/2001 6/15/2001 6/15/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- ORDER OF COURT - DATED 1/22/01 - IN RE LICENSE SUSPENSION APPEAL - HEARING SET FOR 3/30/03 AT 9:30 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 1/22/01 ------------------------------------------------------------------- ORDER - DATED 4/3/01 - IN RE APPEAL FROM LICENSE SUSPENSION - THE COUR FINDING THAT THE ARRESTING OFFICER DID NOT HAVE REASONABLE GROUNDS TO BELIEVE THAT THE MOTORIST WAS UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE THE APPEAL OF STEPHEN M SYMONS FROM THE SUSPENSIONS OF HIS DIRVER'S LICENSE IS SUSTAIND AND THE ACTION OF THE COMMONWEALTH OF PA IS REVERSED - BY THE COURT KEVIN A HESS J COPIES MAILED 4/4/01 ------------------------------------------------------------------- NOTICE OF APPEAL TO COMMONWEALTH COURT THAT WAS FILED 4/3/01 BY TIMOTHY P WILE ATTY FOR APPELLANT ------------------------------------------------------------------- ORDER - DATED 4/27/01 - IN RE APPEAL - APPELLANT IS DIRECTED TO FILE OF RECORD WITHIN 14 DAYS HEREOF AND SERVE UPON THE UNDERSIGNED A CONCISE STATEMENT OF THE MATTERS COMPLAINED OF ON THE APPEAL - BY KEVIN A HESS J - COPIES MAILED 4/30/01 ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1007 CD 2001 ------------------------------------------------------------------- STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - TIMOTHY P WILE - ASST COUNSEL IN-CHARGE TRANSCRIPT FILED - BY THE COURT KEVIN A HESS J ------------------------------------------------------------------- OPINION AND ORDER - DATED 6/15/10 - BY THE COURT KEVIN A HESS J COPIES MAILED 6/15/01 - - - - - - - - - - - - - - LAST ENTRY BlUEF and EXHIBITS ******************************************************************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adl End Bal * ******************************************************************************** APPEAL LIC SUSP 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 APPEAL 30.00 30.00 .00 ---- ----- - ------- --- ~--- ------------ 75.50 75.50 .00 ******************************************************************************** , - "~I '. PYS510 CUmb~",r.land County prothonotary's, O"ffice ,,) Civil Case Inquiry /"') SYMONS STEPHEN M (vs) PENNSYLVANIA COMMO~~ALTH OF Page 2 2001-00264 Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: * End of Case Information * ******************************************************************************** Reference No..: Case Type.....: APPEAL Judgment..... . Judge Assigned: HOFFER Disposed Desc. : ------------ Case Comments ------------- - LICENSE SUSP .00 GEORGE E PJ 1/12/2001 3:00 0/00/0000 0/00/0000 1007 CD 2001 TRue c.,()PV FROM RECORD III T~ wtl8r8Ot. I her8u'*- my hand and tile seal of sald at CarIIsIt,:;- I rh' e nO " " ~ ').,< .. I' ~.~~ m. ,.,.,""~ r o o , . v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Of- ,1",4 ~ STEPHEN M. SYMONS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this ~Uday of \nAl1/A/Jt 2001 upon Petition of Stephen M. Symons, a tt hearing is set on the License Suspension Appeal for the 3~-tIJ day of /11MA'.-i , 2001, at _2i)_~ o'clock A-.m. in Courtroom Number L, Cumberland County Courthouse, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania, all proceedings to stay meanwhile. Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation at least sixty (60) days prior to the date of said hearing. Pursuant to Section 1550(b) of the Pennsylvania Motor Vehicle Code, Petitioner's appeal shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended pending a final determination in this matter. BY THE COURT: Distribution: Prothonotary's Office George Kabusk, Esquire, PennDOT 1101 South Front Street, Harrisburg, PA 17104-2516 David E. Hershey, Esquire 2233 North Front Street, Harrisburg, PA 17110 v o ~() 6" f)v ~ I. ~u~~~~~ ,'_ r t '-, -,~ " - -_T ,~ , t_, " "~,"", FILED--0FFiCE OF THEonOTHONorMY I I I I 01 JAN22 PH 2:03 CUMBERLAND COUN1Y PENNSYLVANIA . , I ~ ~i \': ~ J; <" ~ :~ (; ~ h' .:ff , .. .. ~ , ~ '-I ~ ~ Jii " ~ ~~ ~ , , ~ ~ ~ i . o o v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01- .2t.'f ~-r~ STEPHEN M. SYMONS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING : LICENSE SUSPENSION APPEAL LICENSE SUSPENSION APPEAL AND NOW, comes Petitioner, Stephen M. Symons, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and makes the following averments in support of this License Suspension Appeal: 1. Petitioner, Stephen M. Symons, is a Pennsylvania licensed driver with a residence address of 16 North Wharf Road, Bowmansdale, Cumberland County, Pennsylvania 17008. ' 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address at Riverfront Office Center, Third Floor, 1101 South Front Street, Harrisburg, Dauphin County, Pennsylvania 17104-2516. 3. Petitioner received a notice of license suspension by way of letter dated December 14,2000 from the Department of Transportation indicating that his Pennsylvania driving privileges are to be suspended on January 18, 2001, at 12:01 a.m. for a period of one (1) year for a violation of ~1547 of the Vehicle Code. See Exhibit "A" attached hereto and incorporated herein by reference. 4. The proposed suspension is illegal, improper, and invalid for some or all of the following reasons: ). -1'~_"!ll'mr ~- .~,. ~---~ " ~~ , ", ,-' " 1- - , F o o a. The Lower Allen Township Police and/or agents or employees of the booking center had neither reasonable grounds nor probable cause to believe that Petitioner was under the influence of a controlled substance and; therefore, a request for a blood test was illegal and improper under ~1547 of the Vehicle Code; b. Lower Allen Township Police did not have reasonable grounds to request Petitioner to submit to further testing after he submitted to a chemical test of breath and there is no evidence indicating that the breath testing equipment had malfunctioned or that Petitioner had failed to provide sufficient samples of breath; c. Any requests for a blood test by Lower Allen Township Police or the agents or employees of the booking center was untimely and not probative, in violation of ~1547 of the Vehicle Code as Petitioner was kept in leg irons for a period of approximately four hours subsequent to his arrest and chemical test of breath; d. Lower Allen Township Police and/or agents or employees of the Cumberland County Booking Center failed to advise Petitioner as to why an additional chemical tes~ was requested; and e. The proposed suspension is otherwise in violation of 91547 and case law. WHEREFORE, Petitioner respectfully requests that this Court issue a supersedeas and stay the proposed suspension as outlined in the Department's notice of December 14, 2000 ahd schedule a hearing to determine the validity of the suspension proposed by the Department in Exhibit "A". J ;''W~~~~!W1 ~"--,,~~ . ~~ o Date: l-y-c I 'i!1"~L!_ oj ,,'. "-~~.~ ~ ,~- ',. o Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY B6"~H~& 1.0. #43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 3 1+ . O~.~, " ."'" , o o o o VEfl.IFICATION I hereby verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. /-LI-C( Date ~~~ -" ,~" 1-- 5. ,""1 '~.i'-":',1 o , CERTIFICATE OF SERVICE I, Tammy L. Kelly, an employee of the law firm of MANCKE WAGNER HERSHEY & TUllY, hereby certify that I am this day serving a copy of the foregoing document to the attorneys or parties of record in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, on t~l~ day of January, 2001 at the address listed below: George Kabusk, Esquire PA Department of Transportation Riverfront Office Center, Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 BY:~ '-/) kli ~ Tammy L. Kelly MANCKE WAGNER HERSHEY & TUllY ~ ~~lm: 1-' - '" o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 DECEMBER 14, 2000 STEPHEN M SYMONS 16 N lllHARE ROAD BOlllMANSDALE PA 17008 003426114118624 001 12/07/2000 12000460 05,14/1943 Dear Motorist: In -1!1 As a result of your violation of Vehicle Code, CHEMICAL TEST REFUSAL driving privilege is being SUSPENDED YEAR(S). Section 1547 of the 'on 11/03/2000, your for a period o'f 1 In order to comply with this sanction yoU are required, to return any current driver's license, learne~'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 ar~' 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 pr,osecution under SECTION 1571(a) (4) of the Ve- hicle Code. Although the law mandates th,at your. driving privilege is under suspension even if yoU do not surrender your license, Cl"edit will not begin until all cur,rent driver's license product(s), the DL16LC Form, or a ,letter acknowledging your sanction is received in this' Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR 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 01/18/2001, 12:01 a.m. *********************************************************** I WARNING: If YOU are convicted for driving while your I license is suspended, the penalties will be: a MINIMUM I of 90 days imprisonment AND a 1,000 fine AND your I license will be suspended for 1 Year. I *********************************************************** 'T 'w< ~,,~ , "1" ,,,,, I' o o 003426114118624 " . Please see the enclosed application for restoration fee in- \ formation. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, DECEMBER 14, 2000, of this letter. If you file an appeal in the County court, the Court will give you a time- atamped certified COpy of the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Sincerely, ~~,r~ Rebecca L. Bickley, Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/To: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7:00 IN STATE OUT-OF-STATE TOO IN STATE TOD OUT-OF-STATE AM TO 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 g'. o o STEPHEN M. SYMONS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. Ol-264 CIVIL CIVIL ACTION - LAW COMMONWEALTH OF PA., DEPT. OF TRANSPORTATION, BUREAU OF DRlVER LICENSING LICENSE SUSPENSION APPEAL IN RE: APPEAL FROM LICENSE SUSPENSION ORDER AND NOW, this '3~ day of April, 200l, the court finding that the arresting officer did not have reasonable grounds to believe that the motorist was under the influence of a controlled substance, the appeal of Stephen M. Symons from the suspension of his driver's license is SUSTAINED and the action ofthe Commonwealth of Pennsylvania, Department of Transportation REVERSED. See Com. ofPa.. Deot. of Transo.. Bur. of Driver Licensing v. Penish, ll2 Pa.Cmmwlth. 303, 535 A.2d 296 (1988). BY THE COURT, David Hershey, Esquire For the Petitioner d- .H~,J ~ t~,,_o~-O \ O~ ~y? George Kabusk, Esquire For PennDOT :rlm }O ,-~ - -' :- ." +-,'" 1-''-' ,--, , " ,-,. "', 1- r _,,," o~, o ii j! j! li !; 11 l! l' " " 'i !': j'l b rl n 11 ;.! :'.1 1'J >.' """~ -",.....,_~I. .~.~ ,= \''''1'''- vil\ i'/\I/C:\I[\i::Jd , I '. ~11"'''- ~ '~." "....J /U1\;i I !:) nt\Ii-,'-l\,:-T':!f,'I~~ ,,,-, '., -'. " :J('l-.I I..,J 6U =2 U' : - ~ ,-.i " ""'I" (,- (~,J\1 I U AJiV1C: ;';, .:1) , ,~~1~m. ~Tl~l:~~~H;~~;ii'l!~(:1~ljfi~",!",:p .". ._~~~~~ o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TlMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATIORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-25l6 (7l7) 787-2830 STEPHEN SYMONS, Appellee } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA vs. } } } } NO. Ol-264 Civil COMMONWEALTH OF PENNSYL VANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on April 3, 200 l. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. ~f ;.a TIMOTHYP. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 11 01 South Front Street Harrisburg, Pennsylvania l7104-25l6 (7l7) 787-2830 I/. 1-" o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CIDEF COUNSEL VEHICLE & TRAFFIC LAW DMSION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR llOl SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA l7104-25l6 (717) 787-2830 STEPHEN SYMONS, Appellee o } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA vs. } } } } NO. Ol-264 Civil COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant Request for Transcript A notice of appeal having been filed in this matter, the official court reporter is heret;. requested to produce, certifY and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Prepare only the original for inclusion in the record as the Appellant, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of ti;~ transcript. 'f1n.4r. ;.a TIMOTHYP. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 11 0 1 South Front Street Harrisburg, Pennsylvania l7104-25l6 (7l7) 787-2830 Id-. '00'" . " "1 ' [<C_, 1 ' ~ PYS510 Cumber~d County Prothonotary's ~ice ~{vil Case Inquiry ~ 001-00264 SYMONS STEPHEN M (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: Case T~e.....: APPEAL - LICENSE SUSP T~me.........: J d 00 Execution Date u gmen .:/.....:. . 1 Judge Ass gned: Jury Tr~a .... Disposed Desc.: Disposed Date. ____________ Case Comments ------------- Higner Crt 1.: Higher Crt 2.: Page 1 1/12/2001 3:00 0/00/0000 0/00/0000 ~******************************************************************************* General Index Attorney Info SYMONS STEPHEN M APPELLANT HERSHEY DAVID E 16 NORTH WHARF ROAD BOWMANSDALE PA 17008 PENNSYLVANIA COMMONEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING 1102 SOUTH FRONT STREET HARRISBURG PA 17104 2516 ******************************************************************************** * Date Entries * ******************************************************************************** 1/12/2001 1/22/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- ORDER OF CO,URT - DATED 1/22/01 - IN RE LICENSE SUSPENSION, APPEAL - HEARING SET FOR 3/30/03 AT 9: 3 0 AM IN CR 4 OF THE CUMBERLAND COUNTY COUR~HOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 2/22/01 ------------------------------------------------------------------- ORDER - DATED 4/3/01 - IN RE APPEAL FROM LICENSE SUSPENSION - THE COUR FINDING THAT THE ARRESTING OFFICER DID NOT HAVE REASONABLE GROUNDS TO BELIEVE THAT THE MOTORIST WAS UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE THE APPEAL OF STEPHEN M SYMONS FROM THE SUSPENSIONS OF HIS DIRVER I S LICENSE IS SUSTAIND AND THE ACTION OF THE COMMONWEALTH OF PA IS REVERSED - BY THE COURT KEVIN A HESS J COPIES MAILED 4/4/01 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 4/03/2001 ******************************************************************************** * Escrow Info~aeion * * Fees & Debits Bea Bal Pvmts[Adi End Sal * ********************************~********~************************************** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE 35.00 35.00 .50 .50 5.00 5.00 5.00 5.00 ------------------------ 45.50 45.50 .00 .00 .00 .00 ....----------- .00 *******************************************************************************i * End of Case Information . *******************************************************************************~ 'J ...,.",. ~ , " ~ ....,."-"., ",,\', 'r-RU~~:~, " . .,~\ftJ~,iF~:~~~=,r " Ill...: "'" '-:~ ---- -- . ;;.. '~"",; , . ,~ ' , "10: .,.... I< . r.',. ' " - n~....IVr~JlH ':-'''::: :~::'--V Jj .:l:..~ ,_--- . :< I ! I I I II II I' II ii II ;] l~ II , II Ii )l ,I Ii j Iii I' [:1 "1 , 1i j:1 :'1 ;, i-' Fi II ':1 n .... -~ ".. .'" . _~ .. c t"''r '~i;'oiiV' ~ "'V"'.... ~ """""'" -. " <- ~<~. ~ r-- - .~ ~"~~~"I 'I-~" ^ ~ ,-~-,.". -,,"- ",',''') i '~,A ,_ V~ . ~ ;Hli;'fFI-"~"~'f'~.",,'~n(ff'fi"'i'l:'!~'["'ff~UiI1M!fl!ll!l_"~.ifj o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA l7l04-25l6 (717) 787-2830 STEPHEN SYMONS, Appellee } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA vs. } } } } NO. Ol-264 Civil COMMONWEALTH OF PENNSYL VANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant Proof of Service I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements ofPa. R.A.P. l2l: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 David E. Hershey, Esquire Att. for Appellee Symons 2233 North Front Street Harrisburg, P A l7013 ~ f. ;.a TIMOTHYP. WILE Attorney for Department of Transportation Date: April 24, 200l 14- , ~, - -0-[', 1_5 ~ 'I ",- " ("'" . I l~~",~J -,. ,~_np', __~ ~ -- - 0- -..J f' -c:; o 1: C> -J -J ~ Lv D o D f! o c "'" -Om ~!TI "T~ - ----~ ze;: ~z ~o ~D -0 Pc ~ '''' . ( ~14,:.,~' ~~ ~ ~_~,",'_ g,., , 4 \. > ~ ., .' \.,~ .' c C I~i )> -0 ;:;0 N cr. -0 3: ~ "" C> ::;':;.! f~iFq -.-.j-n ~~~ ,~"~:H ~(') om ~ ,,' ::D -( ,'~"".,. '" 'I!Iil~,~1!'_'l',~f"~-'~':<''-''-~4<.7~'j(''i-~~~~~~~jjiiil~P~1,.lf!lfr~1 .. o o STEPHEN M. SYMONS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. Ol-264 CIVIL CIVIL ACTION - LAW COMMONWEALTH OF PA., DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING LICENSE SUSPENSION APPEAL IN RE: APPEAL ORDER AND NOW, this ~ "1." d - or ay of April, 200 I, in accordance with Rule 1925 of the Rilles of Appellate Procedure, the respondent having filed a notice of appeal, the appellant is directed to file of record, within fourteen (14) days hereof and serve upon the undersigned a concise statement of the matters complained of on the appeal. BY THE COURT, David Hershey, Esquire For the Petitioner . Ad- George Kabusk, Esquire For PennDOT :rlm '\ ~l O.t) fY_v;,'? ---- 10. --L^ - -~ "' ~_, "",,-n'__, ""*-, -,,' . I' '7,' _ " ".,-' :PH"" . ~~ , ~.~ ~" I ~ ~,." ~. ~'-", ~-. _~ "_.' . ~_, ',' _~._~~" o~ --~ -, "~ -~, f:!! !:rl-(i',:CY'C _ __, I H..I_!~ ,,-oj i I'\.JL. C'lj. . L'f::-" ;>--'.~:r; ""r -'JY^DV .f :; '.. i 0',)1 '1',)i\I", it'lf'l1 0: fJPR 30 AM fa: 10 CUMBEfMJQ COUNTY PENNSYLVANIA ~ ,_,~_"",""H~~IIlI\I< ," ~_",,,,_""""'1o/__ ~,_1!fIl".","C,,, '" ~~~"""",~ff.!\'?!"f~M'iq'\!;P%W~'~'!'~"~~~~ilf~~~~~p1ll~~~1 " o D~ JUM J, 1001 U Commonwealth Court of Pennsylvania April 30, 2001 RE: Symons v. DOT No.: 1007 CD 2001 Agency Docket Number: No. 01-264 Filed Date: April 26, 2001 Notice of Docketing Appeal A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. RAP. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name Harold Cramer, Esq. David E. Hershey, Esq. Timothy Peter Wile, Esq. Party Name Bureau of Driver Licensing Stephen Symons Bureau of Driver licenSing Party Type Appellant Appellee Appellant llo ~~ '1[ -,,"'"'" -, 1-" ~" - '> Oress all written communications to: 0 Office of the Chief Clerk Commonwealth Court of Pennsylvania P.O. Box 11730 Harrisburg, PA 17108 (717) 255-1650 Filings may be made in person at the following address (except on Saturdays, Sundays and holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Room 624 Sixth Floor South Office Building Harrisburg, PA 17120 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building One South Penn Square Philadelphia, PA 19107 (215) 560-5742 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Comonwealth Court shall exit only from the Harrisburg Office. (l ~~" - ] '-'",,",.-, I'> . . o COMMONWEALTH OF PENN8YLV ANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DMSION BY: TIMOTHYP.WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RIVERFRONT OFFICE CENTER - THIRD FLOOR llOl SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA l7l04-25l6 (717) 787-2830 STEPHEN SYMONS, Appellee vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant o 0 0 ~ C <'C IJro :> '-0 "'lr;,,; -0 ',- ::0 "T"t ~~/ ,:..::.:;; N _....-, (!)~ ':r"'. " .'::::; -<..,. .::.~ I !-:CJ -0 ::::: ~:) ,- ") ~hi '~-"""""'l ::1: z'.....; >Cl . ~.... J C N ern :z .- . , , 55 -< Cl -< } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA j 007 CD dool NO. 01-264 Civil Notice of Appeal Notice is hereby given that the Commonwealth of Pennsylvania, Department oi Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on April 3, 2001. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given undc Pa. R.C.P. 236. A copy of the docket entries are attached hereto. -, , . ~=~ -11' -" 'f}~ -r. )v{I, '--- TIMOTHYP. WILE Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 11 0 1 South Front Street Harrisburg, Pennsylvania l7l04-25l6 (7l7) 787-2830 TRUE COPY FROM RECORD kI T SiUnooy lNi1erooi. i llafilllnro sat my Mild ~ Ole ~~ ... ~"""". Po. ~~~ ~~~~ aI!r1 I t ..~. .,~ ,= ~ .', ~,=, I I II II I I i i II 11 /1 j I Ii I', l II L II II !I U Ii ,,-' ~,'< - ~_~, ~__J_" _ (',.'\ "..~,.;l ~~" ~~~.~ '-" ~ "~'-~"-I-- 'lIII_~ 'I~ '-," '-"'-< .' ~-- - . . 0 C> (',) c: j"1 s: - -'. -OCO :P> ";-1 mrTi -< p Z::t': zr I rTl ,-=, m)> I ~t~ () -0 -c' :J"C ....Jio... f;;f;~ Zc' "" j t:? -""c Jj ~ :::> ::0 0'\ -< ,~, ~ ,'_,~ ;~"",j'lm-~,]!:,'1'~)~1'W,r("_);"~i1,'i!l"'01~-I'~;r,~,_."~jl,!1~""",,, ,,~,~!II~~~l Jun-Q7-2001 16:Z8 0"\ From- o o T-Z78 p.OOZ/o04 F-8Z5 COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELL:ATE SEC110N ATTORNEYI.D. NO. 30397 RIVERFRONTIOFFICE CENTER - THIRD FLOOR llOl SOUTH FRONT STREET HARRISBURG!, PENNSYLVANIA 17104-2516 (717) 787-2830 STEPHEN M. SYMONS, Appellee } IN THE COURT OF COMMON PLEAS } OFCUMBERLANDCOUNTY,PA vs. } COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellant } NO. 01-264 CIVIL Statement of Matters Complained of on Aw>eal TO THE HONORABLE, THE JUDGES OF THE SAID COURT: NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant, that, by and through its attorney, Timothy P. Wile, Esquire, in compliance with the requirements of Pa. RAP. 1925, hereby sets forth the matters about which it complains with respect to its appeal of this Coun's order of April 3, 2001: 1. The trial court erred as a matter of law when it held that the arresting officer did not have reasonable grounds to request that Appellee -Symon submit to a blood test after rq, 11 j ~ . ~ ~~ _', > Jun-07-2001 1 S :29 '\ From- o o 7-279 P,003/004 F-B2S Appellee Symon submitted to a breath test and provided a sample that yielded a blood alcohol content (BAC) of 0.01 % where: a) the officer observed that Symon was visibly impaired by some substance; b) the officer found a receipt for a prescription drug, dated the same day, in Symon's motor vehicle; c) Symon was involved in a single-vehicle crash; d) in the officer's opinion, Symon's BAC of 0.0 I % did not account for the level of impairment that the officer observed upon Symon; and e) the arresting officer fully informed Appellee Symon of his suspicions and the reason why the officer wanted Symon to submit to the blood test. 2. The Bureau reserves the right to argue any additional issues that may be raised by the common pleas conn's opinion filed in support of that court's order of April 3, 2001. Respectfully submitted, Vv::f;?0~ Timothy P. Wile Assistant Counsel In-Charge Appellate Section Vehicle & Traffic Law Division Attorney I.D. No. 30397 Attorney for Appellant ~f) '1,~ ,Ct [0-"- I-'C Jun-07-Z001 16:Z9 .... From- o o T-m P.OD4/DD4 F-aZ5 COMMONWEALTH OF PENNSYL VANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHIC]!..E &TRAFFIC LAW DIVISION BY: tIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTOR1NEVI.P. NO. 30397 RIVERI1RONTOFFICE CENTER - THIRD FLOOR i ,i 1101 SOUTH FRONT STREET HARRI$BURd, PENNSYLVANIA 17l04-2516 , (717) 787-2830 STEPHEN M. SYMONS, Appellee } IN THE COURT OF COMMON PLEAS } OF CUMBERLAND COUNTY, P A vs. } COMMONWEALTH OF PENNSYL V ANlA, DEPARTMENT OF TRANSPORTATION, } BUREAU OF DRIVER LICENSING, Appellam } NO. 01-264 CIVIL Certificate of Service I hereby certifY that J have on this day and date duly served a true and correct copy of the foregoing Statement of Matters Complained of on Appeal upon the following persons in the following manner, which service complies with the requirements ofPa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Kevin A. Hess Cumberland County Courthouse One Courthouse Square Carlisle,PA ]70]3-3387 ~ TI OTHY P. WILE Attorney for Department of Transporration David Hershey, Esquire Attorney for Appellee Symon 2233 North Front Street Harrisburg, PA 17110 Date: June 8, 200l ell, ''Co..,.".". ~ " ~~ - . ." ;IjJj(k -'-"'''.'-''"'''- . o o STEPHEN SYMONS, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION: Defendant 01-264 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings were held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, Courtroom Number Four, March 30, 2001. APPEARANCES: TERRANCE EDWARDS, Esquire For - The Commonwealth DAVID HERSHEY, ESQUIRE For - The Defendant J~ " 1"1'-"- . :,_-,,", "_"_~C,~" '--"""",a" o o INDEX TO WITNESSES FOR THE COMMONWEALTH PAGE COLLIN HEPFORD Direct Examination by Mr. Edwards Cross-Examination by Mr. Hershey Redirect Examination by Mr. Edwards 4 16 25 JENNIFER MORROW Direct Examination by Mr. Edwards Cross-Examination by Mr. Hershey Redirect Examination by Mr. Edwards 28 37 42 * * * * INDEX TO EXHIBITS FOR THE COMMONWEALTH MARKED ADMITTED 1 - Chemical Test Warnings and Report of Refusal 13 27 2 - Medicine Shoppe Prescript. Leaflet 16 27 3 - Medicine Shoppe Receipt 17 27 4 - Intoxilyzer 5000 Breath Ticket 30 43 d3. - - '~" , " 1:- - ," ~ , ','- - o o 1 March 30, 2001 2 Carlisle, Pennsylvania 3 4 (Whereupon, the following proceedings were 5 held at 9:33 a.m.) 6 THE COURT: Good morning. 7 MR. EDWARDS: Good morning, Your Honor. 8 THE COURT: Good morning. 9 MR. EDWARDS: May it please the Court, I am 10 ~errance Edwards representing the Commonwealth of Pennsylvania 11 Department of Transportation Bureau of Driver Licensing in 12 this matter, Your Honor. 13 THE COURT: Very well. 14 MR. EDWARDS: By official notice dated and mailed 15 on December 14th, 2000, the Department of Transportation 16 bureau of driver licensing notified the motorist Stephen M. 17 Symons operators number 1200460 that as a result of his 18 refusal to submit to chemical testing on November 3rd, 2000, 19 in violation of Section 1547 of the vehicle Code 75 PA C. S. 20 Section 1647, his driving privilege was being suspended for a 21 period of one year effective January 18th, 2001. 22 At this time the Department calls Corporal Collin 23 H. Hepford. 24 MR. HERSHEY: Good morning, Your Honor. On behalf 25 of Mr. Symons, since there are two department witnesses, I 3 ~ o o believ~ there is going to be some overlapping testimony. We request that the second witness be sequestered. THE COURT: Any objection? MR. EDWARDS: No objection, Your Honor. (Whereupon, the Commonwealth witness exited the courtroom.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Whereupon, COLLIN H. HEPFORD, JR., having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. EDWARDS: Q Good morning, Corporal. A Good morning. Q Please state your full name and spell your last name. A Collin H. Hepford, Jr., last name is H-E-P-F-O-R-D. 18 Q 19 A 20 Q 21 Township? 22 A 23 Q 24 A 25 Q By whom are you employed, Corporal? Lower Allen Township. How long have you been employed by Lower Allen Just a little over 20 years. Generally speaking, what are your duties? I am the shift supervisor on patrol. Do your duties ever involve arresting people for 4 d~ :.:"",0"'" '-'..m.,<,.,.,' '- [,., . '~-- o o 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 driving under the influence? A Yes, sir, it does. Q Have you ever arrested someone for driving under the influence? A Yes, sir, I have. Q Do you have any idea approximately how many times? A Over 25 years. A total law enforcement experience probably someone over 50. I don't know the exact number but -- Q Thank you. Do you recognize Mr. Symons? A Yes, I do. Q I am not sure am I pronouncing that correct. MR. HERSHEY: Symons. MR. EDWARDS: I'm sorry. Symons BY MR. EDWARDS: Q Do you recognize Mr. Symons? A Yes, he is seated with defense counsel. Q On November 1st, 2000, did you have occasion to come into contact with Mr. Symons? A Yes, I did. Actually it was about 11:00 November 2nd. Q Okay. Can you explain what the circumstances were? A We had just had a shift change. I was still in the station. Corporal Williams had left to go home, and on 5 Jfa 1-" . , . k..".~.-"~_ '. ,-- '.. ., o o his way home he came across a car that was in a ditch, and he had radioed me over the radio, stating that he was on the scene of an accident, and he believed the operator may be intoxicated. I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Q Okay. What if anything did you do after you received that communication? A I got in the car and responded and immediately went to his location, which was at the intersection of Lisburn Road and McCormack Road in Lower Allen Township. Q Upon arrival at the scene, what if anything happened after that? A Upon arriving at the scene I met Corporal Williams. I also saw a Saab convertible facing north bound in a ditch positioned on a 45-degree angle. Q What if anything did you do after you found this car like that? A We went up to the car. The operator was still behind the vehicle or behind the steering wheel in the car. Q Who was the operator? A Mr. Symons was the operator. Q Was he by himself or was there anyone else with 19 20 21 22 him? 23 24 25 A He was by himself. Q What did you do after that? A We assisted in getting Mr. Symons out of the .< 6 :2]. .- " ," ~;~~, ,., _! I " " o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 vehicle. We had him up on the road. I examined the car. The whole -- there -- the rubber on the front wheel of the driver's side of the car, the wheel was wore down into the steel cords, and that had deflated, and it was wore off from him sitting there revving the motor. Q with the car stopped? A With the car stopped and stuck in the ditch. Q After Mr. Symons had exited the vehicle, did you have occasion to observe his appearance? A Yes, he was well dressed, although he was disheveled. He had a stagger to his walk. He swayed. His eyes were bloodshot and watery. It wasn't until we moved away from his car over to where the police car was parked across the road, that I was able to detect an odor of an alcoholic beverage on his breath. Q Did you have occasion to talk to him at that point? A Yes. I was talking to him, trying to find out 19 what happened. His speech was very slurred, and what I would 20 call mushy. It all blended together at times. 21 Q Did you do anything further at that point? 22 A I asked him where he was coming from. He stated 23 that he was coming from the Maverick Steak House in 24 Harrisburg, in route to his home in Bowrnansdale. Being 25 familiar with the area, his car was not in the position to be 7 J.g n,: -r' l'" , '-X-':"--"'" --'" ,<-~~,,~"'- ,. o o 1 going home. 2 Q What, if anything happened after that? 3 A I had him -- I asked him to perform some field 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sobriety tests to determine if he was capable of continuing driving after we got the car out. Q Which field sobriety tests were those? A The SFST is comprised of the horizontal gaze nystagmus, the walk and turn and the one-legged stand. Q Can you describe how he did with each of those tests? MR. HERSHEY: Your Honor, on the HGN we would object without the appropriate evidentiary foundation. THE COURT: I understand. MR. EDWARDS: We will deal with everything other than the horizontal gaze nystagmus test. BY MR. EDWARDS: Q How about the other two? A The walk and turn test, which consists of nine steps away, doing the proper turn as demonstrated, and bringing nine steps back, walking heel to toe. The first nine steps he did 11 steps, missing the heel to toe each time. On the return he walked 10 steps, again missing the heel to toe each time. He did it very off of the line. He didn't follow the instructions on the turn or in the number of steps. 8 ~, -; , '-'-1" o o 1 Q 2 test on? What kind of surface were you having him do this 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A level road surface. Q Any obstructions or anything that would have pTevented him from doing the test? A No, sir. Q How about the other test? A The other test was the one-legged stand, which after some consideration to his ability to stand and things, I decided it was best not to attempt the one-leg stand, for fear that he might fall over and injure himself. Q What if anything did you do after that? A He was patted down and placed under arrest for dTiving under the influence of alcohol. Q What happened after that? A Let me check my notes here. I went on the scene at 2311. He was placed under arrest at 2320 hours, and then put in the back of the police car, and then I transported MT. Symons to Cumberland County Central Processing for breath testing and processing. I arrived there at 2345. Q Where was that located? A It's at 1993 Hummel Avenue, adjacent to our police department. Q After you arrived at the processing station, what if anything, happened? 9 ~ '-~-",,< - . -, o o 1 2 3 4 5 6 7 8 9 10 11 12 13 A I turned Mr. Symons over to the booking agents, and followed the procedures there, advising him of the implied consent laws and so forth. At which point I released him to them, and I had to return out to the accident scene. I was the only officer available at that time for removal of his vehicle. Q Okay. Upon returning to the accident scene, what did you do then? A We -- I got into the car to locate the operator's -- or the owner's information on the vehicle to see if there was any evidence in view. Q During the course of that, did you find anything else? 14 A 15 but I did 16 car. 17 18 witness? 19 20 21 22 I did not find any pills in the car that I recall, find some prescription instruction sheets in the MR. EDWARDS: Your Honor, may I approach the THE COURT: Certainly. (Commonwealth's Exhibit Nos. 1 through 4 were previously marked for identification.) MR. EDWARDS: Your Honor, I am handing the 23 Corporal what has been marked as Commonwealth's Exhibit Number 24 2. 25 10 3 }- ,-. '! ,_: "I {....,,,,,. "',..,-" o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 BY MR. EDWARDS: Q Can you please describe that, Corporal. A That is what I refer to as -- it is a patient advisory leaflet from The Medicine Shoppe to Mr. Symons dated November 2nd, 2000, and it's for a drug called Ambien. Q The date of the accident was what date? A November 2nd, same day. Q So it was the same date as that? A Yes, sir. Q And I am now handing the witness what has been marked as Commonwealth's Exhibit Number 3. Can you please identify that as well? A This is a receipt from The Medicine Shoppe to Mr. Symons for $61.77 for the prescription. Q And you said you didn't actually find any prescriptions; is that correct? A That's correct. Q Are these originals A Those are copies. The originals were put in with Mr. Symons' property. 21 Q Are they accurate copies of what you found? 22 A Yes. 23 Q After you finished it, after you finished at the 24 scene, what if anything happened? 25 A I was still at the scene waiting for the tow truck 11 3), , "'~"I . , " <" - ~ ,l ...", . '. , ,',.. ~ ,~ , o o 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 operator to get there to have the vehicle removed, and I received a radio communication from central processing indicating that I was to give them a call. I got on my cell phone. I called them and they advised me that Mr. Symons' blood alcohol came out extremely low at a .018 percent. Q What if anything, did you do in response to that? A I immediately advised them that I would be returning there as soon as I could to take Mr. Symons to the hospital for blood tests. Q Did you in fact return? A Yes, I did. Q What happened after you returned? I returned to the scene A or excuse me. I returned back to the booking center, I talked with the booking agents to make sure all of the breath testing equipment was working properly, which it was. I went to Mr. Symons. I explained to Mr. Symons that his blood alcohol level, where it, was at, and there were -- and that I thought that he was on, in conjunction with the alcohol, some type of medication or controlled substance which made him intoxicated to the point that he was. Q When you first dropped him off at the center, did you have any reason to believe then that he was on any kind of drugs? 12 03, I)' "~ '--~..C" '-'"--;'--"':-,-"-~,, "...." ',.,.i o 1 A No. 2 Q In other words, at that point all you thought was 3 that you had somebody that had too much too drink? 4 A Yes. 5 Q What if anything happened after you advised 6 Mr. Symons of that? 7 He indicated that he was tired, it was too late, A 8 and he didn't want to go to the hospital. He repeated that 9 several times. 10 MR. EDWARDS: Your Honor, may I approach the 11 witness again? 12 THE COURT: Certainly. 13 MR. EDWARDS: Your Honor, I am handing the 14 Corporal what has been marked was Commonwealth's Exhibit 15 Number 1. 16 BY MR. EDWARDS: 17 Corporal, can you please identify that. Q 18 This is the chemical test report warning and A 19 refusal that was submitted by me to PennDOT. 20 Okay. Is that the original or is that a copy? Q 21 This is a copy. A 22 Q Is that an accurate copy? 23 A Yes, it is. 24 What if anything did you do with regard to that Q 25 form with Mr. Symons? 13 34- " -f,' ,_ ~ 1,-7" "..- -~- "J'''"'-' <" - -,- f""', "''''' o 1 A I obtained the form from the booking center. 2 Mr. Symons was in the holding cell. I read to Mr. Symons 3 verbatim the top portion of the warning. 4 He at that time stated that he did not want to go. 5 And I asked him if he would sign the refusal form. He stated 6 that he would. I slid the form through the door of the cell, 7 and he signed the form and returned it back to me. 8 Q Now, when you say you read the top section, are 9 you saying the section that begins 1647 Chemical Test 10 Warnings? 11 12 A Yes, sir. Q And there are four paragraphs, and subparagraphs 13 A, Band C under that section, did you read those to him? 14 15 16 17 18 him? 19 A Yes, sir. Q And you read those to him verbatim? A Yes, sir. Q What if anything happened after you read them to A He again stated he was tired, and he didn't want 20 to go. He refused. He said he was going to refuse the blood, 21 and I had him sign the form. 22 Q Okay. Now, you had already had him complete 23 successfully, as I understand it, a breath test; is that 24 correct? 25 A That's correct. :'-~-' '." " .' 'J.?- --" I. 14 35~ "',,".. '.,,' --"~" ;'l:_-~<-, o o 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 why did you ask him to submit to a second test, the blood test? A Well, it was my training and experience that a person with a .018 percent alcohol would be almost acting as a sober person, that is a very small amount of alcohol in a person's system. In a person my size, that would probably be about one beer to where it is not even a legal presumption that you can assume anything from it. Q So at that point, is it correct to say that you believed that he was intoxicated with something else? A Something other than the alcohol, yes. Q And is that the reason that you asked him to submit to the blood test? A Yes, sir, that was. Q What if anything happened after that? A I again told the booking people to proceed with the processing of Mr. Symons. After which time he was he would be free to go. MR. EDWARDS: No further questions, Your Honor. MR. HERSHEY: Your Honor, may I approach him to review the exhibits? THE COURT: Sure. MR. HERSHEY: I need to get a good look at those. THE WITNESS: Mr. Hershey, they are all with him. 15 :% ,;,:' . !':_~ f'" v__ "_ _-, _~_~I___" - -' --, "e. n,.. ":' '''''-j- "iJ ~~ " "",,--,,-,i7"-"', c: o o 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. HERSHEY: Are these the exhibits? MR. EDWARDS: Yes. (Whereupon, defense counsel took a moment to review exhibits.) MR. HERSHEY: Corporal, if I could take things out of order a little bit. Do you have exhibits 2 and 3 in front of you? THE WITNESS: I don't have any exhibit in front of me. MR. EDWARDS: MR. HERSHEY: There is only one copy. Oh, okay. May I approach, Your Honor? THE COURT: Certainly. CROSS-EXAMINATION BY MR. HERSHEY: Q I am handing you both Commonwealth's Exhibit 2 and Exhibit 3. A Okay. Q On Commonwealth's Exhibit 2, I think which you have already identified, where are you indicating that you retrieved that from? A I retrieved that from Mr. Symons' vehicle. Q Where in the vehicle was it? A I believe it was on the passenger's side, passenger's seat area. 16 31 0'_1 I., "~ :;: .~-~- ^ , , - ,-~,"- t"'1 - o 1 Okay. And how about Exhibit 3? Where did you Q 2 retrieve that from? 3 That was with it also. They were together. A 4 Okay. Exhibit 3 it appears to be a receipt from Q 5 The Medicine Shoppe; is that correct? 6 Yes, it does. A 7 Now, wasn't that receipt actually attached to a Q 8 bag that was in the vehicle? 9 A It may have been, yes. 10 Q Okay, just -- 11 A I believe that is what the crinkling is down here. 12 Q That is what I am trying to get at. The receipt 13 was attached to a bag that had a prescription vial in it; 14 isn't that correct? 15 I do not recall the vial. I have -- I remember A 16 the paperwork. 17 Okay. Q 18 And they were photocopied at the booking center by A 19 me. I don't recall the vial being present. I don't recall 20 Mr. Symons having any kind of drug on him or in the car. 21 Okay. Tell me how you got what you got out of the Q 22 car and what did you do with it. 23 I was looking for the registration to the car. A 24 Q Uh-huh. 25 To find out the legal ownership to the car. A 17 3'i. ,'. "--r'" "'-1' - ~-" - e-,- ">---1 ~" , , "." ~ , ',t:o-- t-~~"'f o o 1 2 3 4 5 6 7 8 9 10 Okay. I was in the glove box of the car, and there Q A were -- the inside of the car had a lot of other paperwork and materials and things like that. And this was on the seat, passenger's seat as I was in the glove box looking for the registration. Q Right. But you do remember the receipt being attached to a bag? A I believe it was, yes. Q Okay. Was the bag stapled shut with the receipt 11 across the top? 12 A No. 13 Q Are you sure? 14 A No. I took the bag, flattened the bag out on the 15 printer -- copier and photocopied it. 16 Q Okay. Well, where is the bag? 17 A That was returned to the Defendant with hi s 18 19 20 21 22 23 24 25 property along with the other stuff. Q Okay. If there would have been a prescription vial in there, would you have had a record of whether it was returned to the defendant? A I would not have. It would have been with his property from booking. Q Okay. Have you seen such a record? A No. 18 3q, p--,-., --I' "'., . ,'-~"- .., " ',,' .,' ".0. ~. , ~ "< ''" r: ' o o 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 Okay. A There may be. Q Is that something that Ms. Morrow would have been responsible for that evening? A Yes. Yes. Q Okay. All right. Corporal, you indicated to cQunse1 that you have had about 20 years with Lower Allen; is that right? A Yes. Q And in that time you have made somewhere over 50 D.U.I. arrests; is that correct? A I have law enforcement experience with three agencies, Lower Allen, the longest 20 years. I was Chief of Police In Shiremanstown for a year and a half, and I was a deputy sheriff out in the State of Utah for approximately two and a half years. Q Does that make up the 20 years then? A Twenty-five years total. Q Twenty-five years total. But was I correct on the second part of the testimony that you made over 50 arrests in that time period? A That is just an estimate. I don't recall total. Q Okay. Of those arrests, how many arrests did you make involving driving under the influence of a controlled substance? 19 ~. " "'-1--, ~ ,- .--,. o o 1 A That is hard to say. I am just trying to work off 2 shear memory. Maybe three or four. 3 Q In 25 years? 4 A Yes. 5 Q Okay. 6 A Like I said, it is just an estimate. 7 Q Prior to this encounter with Mr. Symons, did you 8 know what Ambien was? 9 A No, sir. 10 Q Did you ascertain whether, in fact, Ambien was a 11 controlled substance under the Drug Device and Cosmetic Act 12 before you asked him to submit to a blood test? 13 14 A No. Q When you were at the scene of the accident, did 15 Mr. Symons indicate to you that he had fallen asleep at the 16 wheel? 17 A Yes, sir. Apparently he did. May I clarify that? 18 Mr. Symons had told me that -- I am not sure if it was at the 19 scene or if it was later at the Booking Center, but Mr. Symons 20 did state that he had fallen asleep. 21 22 Q Okay. MR. EDWARDS: Your Honor, just very short 23 redirect. 24 25 MR. HERSHEY: I am not finished. MR. EDWARDS: Oh, I'm sorry. 20 /J-f, ~;i o'),"_",?' ~"_ _~'",~_"~" ,_o_~~_ - --, r',-~ of"', -'_'''0' 1 - ,;\\ o o 1 MR. HERSHEY: I just stand up and down. It just 2 keeps my blood flowing. I am getting old. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. HERSHEY: Q Corporal, on the wa1k-and-turn test, if I understood your testimony you indicated that he did not vary off line, was that your testimony? A Yes, if I may explain. Q Go ahead. A He was not directly heel to toe. They were offset but not to the point where he was the gait was far apart. Q The space between his feet was not far apart? A The space between his feet was, if I recall, 8 to 10 inches. They were not directly in front of the other, but they were offset slightly, but not to the point where he was off the line. Q In other words, he was able to walk in a straight line? A Basically. Q And you made specific notations about the number of steps that he took. Did you make a notation as to whether or not he raised his arms? A I believe his arms were down to his side. Q Would that be appropriate given that particular test? A It depends upon the individual and their 21 /tL .'i 'I, ~!i: o o 1 experience. 2 Well, isn't one of the scoring criteria for the Q 3 wa1k-and-turn test raising the arms? 4 A Yes. 5 Okay. So you didn't take any -- you didn't make Q 6 any cues or take any points off for Mr. Symons raising his 7 arms? 8 A No, I did not. 9 Okay. Urn, what about during the instruction Q 10 phase? I didn't hear any testimony about that. 11 A Mr. Symons was having difficulty following the 12 instructions. In the instruction phase I have indicated that 13 he could not keep his balance, and he also started too soon to 14 do the test. 15 Prior to this incident, had you ever met Q 16 Mr. Symons before? 17 A No, sir. 18 Q Do you have a record -- strike that. You 19 initially placed Mr. Symons under arrest for D.U.I., and you 20 transported him specifically for a breath test; is that 21 correct? 22 A Yes, sir. 23 Q Did you advise him of the implied consent? 24 A Yes, sir. 25 Q Okay. And as part of your implied consent 22 43. 'I' ~_ ", ." ,- ~'" o o 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 warnings, did you ask him to submit to a chemical test of breath? A Yes, sir. Q And would that have been before he actually took the breath test? A Yes, sir. Q Do you know what time you were back on -- back at booking? What time you came back the second time? A No, sir, I do not. Q Okay. A I assume it Q Go ahead. A I assume it would have been probably around an hour. Q All right. When you returned from being at the accident scene, Mr. Symons was in the holding cell; is that correct? A Yes, sir. Q And he had leg shackles on? A I believe that is their procedure, so he doesn't have to sit there in handcuffs. Q All right. And if I understand your correct testimony is that Mr. Symons was still in the cell while you are outside of the cell with the PennDOT DL 26 form; is that right? 23 44- , - I. ~- --.. ;:e.L. - ^ -, --'-.'-,-,',- o o 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, sir. Q And as I understood your testimony, you indicated that you read it to him, and he indicated something to the effect that he was tired, you then handed him the form and then he signed it; is that right? A Yes, sir. Q Was he given the opportunity to read the form or did you just read it to him, hand it through the bars and have him sign it? A I -- he was standing next to me looking through the cell as I was reading it to him. Q Okay. A And I asked him if he had any questions of what I had just read to him. He indicated, no. Stated that he was tired, and he just wanted to go home. At that time I slid the paperwork to him. Before I slid it to him I showed him where his signature -- where he could sign the form. I slid it to him. He signed the form and handed the paper and the pen back. Q When you got the form back from Mr. Symons, did you do anything else with respect to him or was that the end of your contact? A I advised the booking personnel that they could proceed with their procedure, and when they were done he was free to go. 24 ~f "'!'-, ~ =- - < -'1 -., : ~; '^ "':-':_>""~~-~ 'i-"'~~ -~ _v o o 1 2 3 4 5 6 7 8 9 Q Okay. A I believe they ended up calling him a cab. Q Does that mean that after you got Mr. Symons' signature, you didn't then give him another opportunity to agree to the blood test? A No, he was very emphatic. Q Okay. MR. HERSHEY: Excuse me, Your Honor. (Whereupon, a discussion was held between 10 Mr. Hershey and Defendant off the record.) 11 MR. HERSHEY: Your Honor, I have no further 12 questions. 13 MR. EDWARDS: Very short redirect, Your Honor. 14 REDIRECT EXAMINATION 15 BY MR. EDWARDS: 16 Q Corporal, in your experience with your 50 D.U.I. 17 arrests or so, is it normal if you smell alcohol on the breath 18 of the driver, that you arrest the driver for driving under 19 20 21 22 23 24 25 the influence of alcohol, not drugs. A That's correct. Q On cross examination you described the walk-and-turn test in a little more detail. In your opinion did he pass it or fail it? A He failed it. Q The bag you found to which Commonwealth's Exhibit 25 ft(p I'. ,; 'I - ~"- ;, " 'I "I~ "'~, ., ',-, -,< '~~-~- ". , ~,.,c ' o o 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 Nos. 1 and 2 were attached, did you have occasion to read what was on there? A The patient advisory leaflet from the Medicine Shoppe I read. Q Is there anything on there that would have led you to believe that Mr. Symons shouldn't have been driving while taking a prescription like that? A About halfway down the page there is a caution. MR. HERSHEY: Okay. I just want to object to one thing. There is nothing in evidence so far that I heard that indicates that Mr. Symons ever took that medication that was presumed in the questioning. MR. EDWARDS: And Your Honor, I am not even arguing that he took it, what we are dealing with here is the Corporal's reasonable grounds to believe at that point that he was dealing with a motorist who had consumed both alcohol and perhaps prescription drugs. And it is what the Corporal's thought processes were at that point that were important. THE COURT: Go ahead. BY MR. EDWARDS: Q So with regard to that -- again, I am not arguing that he took them. I am not trying to prove that he took prescription drugs. I am just asking you if there is anything you read on that form that led you to believe that it would -- if he had been taking those drugs while drinking that it would 26 474 - i!~7_ _~r "~ n'l I' '~i~ . C'~',,>" "d o o impact his ability to drive safely. 1 2 A It says, "Do not drive, operate machinery, or do 3 anything else that could be dangerous." 4 MR. EDWARDS: Thank you. No further questions, 5 Your Honor. 6 MR. HERSHEY: Nothing further, Your Honor. 7 THE COURT: Perhaps you've indicated, and if so I 8 missed it. Other than reading off of that form, did you have 9 any other discussion with him about the blood test, that is 10 for example, why you wanted to have it taken? 11 THE WITNESS: When I got the low results back, I 12 explained to Mr. Symons that I felt that he was under the 13 influence of things other than alcohol. 14 THE COURT: Okay. 15 THE WITNESS: That was why I wanted to take him to 16 the hospital for the blood testing. 17 THE COURT: Okay. All right. Anything further? 18 MR. EDWARDS: Your Honor, I would like to offer 19 Commonwealth's Exhibits 1, 2 and 3 into evidence at this time. 20 THE COURT: Unless there is an objection. 21 MR. HERSHEY: No objection, Your Honor. 22 THE COURT: All right they are admitted. Thank 23 you. 24 MR. EDWARDS: Your Honor I don't anticipate 25 recalling the Corporal, however, I may need to. Is there any 27 ft{. HR"".., -!!-. I ~ ~ ~ ~~~....... ,J~. _';' , ~,., , ,,"',. -. o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 objection to his remaining in the courtroom or should he leave? MR. HERSHEY: If there is a possibility that he could be recalled, I would ask him to be outside of the courtroom. MR. EDWARDS: All right. Your Honor, at this time the Department calls Jennifer Morrow. Whereupon, JENNIFER L. MORROW, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. EDWARDS: Q Good morning, Ms. Morrow. A Good morning. Q Please state your full name and spell your last 16 name. 17 A 18 Q 19 A 20 Q 21 employed? 22 A Jennifer L. Morrow, spelled M-O-R-R-O-W. By whom are you currently employed? I am currently employed with Sutliff Chevrolet. On November 3rd of 2000, by whom were you 23 24 25 I was currently employed with the Cumberland County District Attorney's Office as a central processing agent. Q And how long have you been in that position before 28 ftf --, ", I--'~'-" "'1 Il!II!IIIII!IIl ; ~h' . o o 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 you left? A I was working for them for a year and a half. Q What were your duties in that position? A My duties in that position entitled processing D.U.l. 's and any criminal processings. Q Do you recognize Mr. Symons? A Yes, I do. Q And could you point him out for the record? A He is sitting over there. MR. EDWARDS: And for the record, the witness has identified the defendant sitting next to Mr. Hershey. BY MR. EDWARDS: Q On November 3rd of 2000, did you have occasion to come into contact with Mr. Symons? A Yes, I did. Q Can you please describe the circumstances. A Mr. Symons was arrested by Officer Hepford and brought to our processing center to be processed for D.U.l. Q And what if anything happened after he was processed? A Well, after we finished with the breath test, we then attempted to get a blood sample from him. Q Okay. MR. EDWARDS: Before we even move on to the blood test, Your Honor, may I approach? 29 ~. ~~, .--'- ~. . . o o 3 5 documen t ? 6 7 8 10 11 12 14 15 process. 16 19 test. 20 21 24 25 THE COURT: Certainly. 2 BY MR. EDWARDS: ~:c ,c, ~ 1 Q And I am handing the witness what has been marked 4 as Commonwealth's Exhibit Number 4. Do you recognize that A Yes, I do. Q And what is that? A This is the ticket that printed out of the 9 Intoxilyzer 5000. Q Did Mr. Symons complete the breath test correctly? A Yes, he did. Q Do you know if a videotape of the processing was 13 made that -- I guess that was actually that morning? A Yes, we make a videotape of every D.U.I. that we MR. EDWARDS: Your Honor, I have a videotape. It 17 is about 10 minutes long. And just for the record, we are not 18 contending that he didn't successfully complete the breath THE COURT: Uh-huh. MR. EDWARDS: And this tape will show it. We 22 would merely like to show how Mr. Symons appeared, and 23 Ms. Morrow will be able to authenticate this if I may play it. THE COURT: Sure. (Whereupon, the tape was played.) ,0 30 6) "-;':"";"":""1~<:'" .. "'-,1 ' . . o o 1 MR. EDWARDS: Your Honor, there is a 30-second 2 gap, and then about two more minutes. 3 THE COURT: Okay. 4 (Whereupon, the video continued.) 5 MR. HERSHEY: Your Honor, we object to this 6 portion of the tape because I believe it is going to indicate 7 my client exercised his right to remain silent. 8 THE COURT: Do you want to turn this off? I don't 9 know what we are talking about here. I didn't know what was 10 coming. Now what is the objection, Mr. Hershey? 11 MR. HERSHEY: The objection was that last portion 12 of the tape, I am not sure what the purpose is for its offer 13 or what the offer of proof is, but we would argue that any 14 indication of Miranda -- any involuntary indication of right 15 to remain silent should not be held against my client, and 16 there is a reference to that. 17 MR. HERSHEY: Your Honor, there is no dispute 18 about that. This has been -- 19 20 21 22 23 24 25 Okay. -- this has been offered. THE COURT: MR. EDWARDS: There is a little bit more, but I believe Your Honor has already seen enough. THE COURT: But the point is there is not inculpatory statements from the Defendant that you are seeking to introduce. 31 SJ. ''1"-1 , I" ~,~ ~ __""'r"' ," ,- ~ o o 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. EDWARDS: No testimonial whatsoever. This is for establishing his appearance. It goes on for about another minute like this, Your Honor. And unless Mr. Hershey wants me to put it back on, to finish it I will, but -- THE COURT: Okay. If it's consistent with what I have seen already, I couldn't imagine there would be any need to do that. MR. HERSHEY: No objection from me, Your Honor. That is fine. THE COURT: Okay. Very well. We will stop the tape at this point. MR. EDWARDS: Thank you, Your Honor. BY MR. EDWARDS: Q Ms. Morrow, there was a voice on that tape speaking to Mr. Symons. Do you know whose voice that was? A That was mine. Q Did Mr. Symons properly -- eventually complete the breath test? A Yes, he did. Q What if anything did you do after that? A After the breath test I paused the taping for a brief time for Corporal Hepford to talk to him and attempt to finish the D.U.I. processing, which would have entailed asking questions. Which of course he wanted his attorney so I didn't 32 5). .-- !-"__-'-"-,' _d I" ""',- ,..,.,.".~ . ,"""",~, . '-, '-r"~~~'""'" fF.~ o o 1 ask any questions. It would have been the walk-and-turn and 2 one-legged stand, which he also did not want to do. 3 Q Did you contact Corporal Hepford? 4 A Yes, I did. 5 Q And why did you contact him? 6 A Due to the fact of his state, and the fact that 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his blood alcohol content was so low, my concern was that he had other substances in his system. Q Have you had much experience during your year and a half dealing with people who were brought in for a breath test? A I have had about four or five other cases like Mr. Symons. Q Well, just generally speaking, if one comes in based on your experience -- and as I recall, the first one was a .018; is that correct? A Yes. Q The first breath sample and the second was a .017. In your experience is that consistent, as far as alcohol consumption is concerned, with a person Mr. Symons' size? A No. Q And what did that lead you to belief? A That led me to believe MR. HERSHEY: Objection to this testimony, Your Honor, without more of a foundation. The two cases that talk 33 64- 1- '--"": '" '-1 . . '.,~" ' o o 1 2 3 4 5 about opinion testimony relative to, other than alcohol, Commonwealth versus Yedinak and Commonwealth versus Dunne, both of which require a foundation before a witness can offer an opinion. . THE COURT: Do they go to the merits of the case 6 in front of a jury or are those suppression cases in which the 7 question is, What is the police officer's state of mind? 8 MR. HERSHEY: These two cases were criminal cases, 9 and the issue was whether that testimony could go to the jury. 10 THE COURT: For the purpose of proving the 11 defendant's guilt or innocence? 12 MR. HERSHEY: Correct. 13 THE COURT: Okay. Well, in this case the very 14 issue is whether or not there is sufficient facts which 15 warrant the conclusion. 16 She came to this conclusion. Now, whether she was 17 entitled to come to that conclusion is the question we are 18 here about, but it doesn't alter the effect of her conclusion 19 right or wrong. 20 MR. HERSHEY: I understand. 21 THE COURT: And the issue is probable cause not 22 guilt or innocence in today's hearing. 23 MR. HERSHEY: I understand the Court's ruling. 24 THE COURT: With that observation having been 25 made, we will permit the testimony. I 34 00'1 - - f _"~' ~,__ - -~Cf 'r. -, , ~ i -" '1, r .., , ,-~ .. " ,~ 'if{'~J]L ~ ,,' " J, " o o 1 2 3 4 5 6 7 purpose, Your Honor. 8 THE COURT: Okay. 9 MR. EDWARDS: If I may, Your Honor, the purpose 10 for this testimony is to help establish the Corporal's 11 reasonable grounds. It is his reasonable ground to request 12 the blood test that is at issue here, and he can rely upon 13 third-party statements. Of course, that is where I was going 14 with this. 15 THE COURT: I understand the issue. 16 MR. EDWARDS: Did you -- 17 MR. HERSHEY: I'm sorry to interrupt on that 18 issue. The Corporal never indicated -- at least I didn't hear 19 him say that he relied on Ms. Morrow's observations in making 20 a determination or request for blood test. 21 THE COURT: I think I will hear any testimony 22 Ms. Morrow has to offer that that is what she told the 23 officer. 24 MR. EDWARDS: That is all -- he did testify that 25 she did get in touch with him, Your Honor. MR. EDWARDS: Yes, Your Honor. THE COURT: With that understanding. MR. EDWARDS: I need to hook this -- THE COURT: At this point we could probably agree it would not be admissible to the jury. MR. EDWARDS: I am not even offering it for that 35 670. ".--,', '" . ~, c , "';__r'- -,"" o o 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 COURT: Okay. BY MR. EDWARDS: Q And if I may, Did you tell Corporal Hepford anything after processing Mr. Symons as we have just seen on the tape? A Yes, I did. After getting the breath test, I notified him of the breath test results, and based on experience between Corporal Hepford and myself, we determined whether or not we should attempt another sample of testing from him. Q But not another breath test? A No. Q In your experience is a .018 and a .017 an indication that one is under the influence of alcohol? A Based upon my experience with somebody with that blood alcohol content, they would not exhibit exactly what I had seen from Mr. Symons at the time that he was in the center. They normally would not have the very slurred speech, the inability to explain their actions and the confusion that he was having at the time that he was in the center. Normally they are very coherent and able to answer my questions, and they really don't have that slurred speech. Q And all of these things that you are testifying to, did you observe those by Mr. Symons? 36 S7. Ie ~ r :"_ _j_ ,,_, __ _"';'I""~ -, i="",,_, o o 1 2 3 4 A Yes, I did. Q And did that leave you in turn then to contact Corporal Hepford? A Yes, it did. 5 6 Q And what did you ask him to do? A I notified Corporal Hepford and asked him if there was anything that he wanted to do, being that in the implied 7 8 9 10 11 12 13 14 15 16 17 consent it is my understanding that the officer can ask the person to take as many tests as he wants. Q Okay. Did you have occasion to see Corporal Hepford again that evening -- that morning? A Yes, I did. Corporal Hepford came over and attempted to talk to Mr. Symons while we were retaining him. Q And did you overhear the conversation? A I overheard parts of the conversation, yes. Q Can you relate what you overheard? A Urn, I overheard Corporal Hepford trying to ask 18 Mr. Symons to go for the blood test, and I heard Mr. Symons 19 saying no to that fact. 20 MR. EDWARDS: Thank you. No further questions, 21 Your Honor. 22 CROSS-EXAMINATION 23 BY MR. HERSHEY: 24 Q Ms. Morrow, did you prepare any reports regarding 25 this incident? I I 37 67 ,', , ';"""""- ~~. , "..., .,,,. '-I' .- ,. 4. _ .,;,--- ~"~, ", ~'. ~ ",/'''''',- - o o 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 Yes, I did. Okay. And have you reviewed those in conjunction A Q with your testimony today? A Yes, I did. Q Do you have those at the stand with you? A Yes, I do. MR. HERSHEY: May I approach the witness, Your Honor? THE COURT: Certainly. BY MR. HERSHEY: Q Okay. Is this your report? A Yes, sir. Q Okay. You are presently with Sutliff Chevrolet; is that correct? A Yes. Q Before you were with the booking center, what was your occupation? A Before I was working at the booking center, I was a sales and billing person for TSR Wireless, which is now out of service. Q Okay. Other than your year and a half with the booking center, have you had any EMT training of any kind? A No, sir. Q Have you had any law enforcement training of any kind? 38 (fi '1'- , ' " ~-./ ' __,. "H~,'" o o 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, sir. They gave me a month's training before they even put uS in the booking center. Q Okay. And that month of training was devoted to what? A It was devoted to all of the training. We had SFST, which is field sobriety evaluations. We had training on the Intoxilyzer 5000. The Intoxilyzer 5000 lasted about a week. While we did the Intoxilyzer 5000 training and the field sobriety training, they taught us other indications of what a person might look like under the influence of alcohol and/or a controlled substance. Q And how much of the training course was that devoted to? A It was about two weeks for the Intoxilyzer 5000 and the field sobriety evaluation training. Q Okay. What aspect of that two-week course was devoted to training with regards to detecting people under the influence of an alcoholic substance? A Basically we treat them all the same. That was what our training was because when you do the field sobriety evaluations you are going to get the same results if they are on a controlled substance or if they are under the influence of alcohol. Q Okay. You never met Mr. Symons prior to that 39 (pc) ",---- ,'..'", '1" ". '[, ,'. " ~ . 'r,. __ .",~ /""'l ""'" o 1 evening; is that correct? 2 A No, sir. 3 Q What time was Corporal Hepford back from the scene 4 to the booking center? 5 What I could tell you was the time I stopped the A 6 tape, that was the time. I can't remember exactly what the 7 time was on the tape that was when we called them over. When 8 we paused the tape, we asked Officer Hepford to come back. 9 So when you paused the tape, Hepford was still out Q 10 on the scene? 11 No. Actually, he was over next door, and there A 12 were other officers from Lower Allen that were assisting. 13 Okay. And I know we didn't see the whole tape, , Q 14 but just so the record is clear, do you agree that the 15 interaction between Corporal Hepford and Mr. Symons is not on 16 video; is that correct? 17 A Unfortunately, we did have that on video. We have 18 a cell tape that is made of everybody that comes in. And 19 unfortunately, I don't know where that tape got to, but it was 20 on tape at the time that he was there. 21 Q Who is the custodian of the tape? 22 A That would be Kathy Shrouder. If anything would 23 have been dropped, she would be the one responsible for it. 24 Q So one tape was reserved and one tape was lost? 25 A That I don't know. I wasn't responsible for 40 ~l, "C-'" ,~ ,0 "\;,," "r. r ",'_ o o 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 keeping track of what happened to the tape after I dropped it in the box. Q Did you make any efforts to retrieve the cell tape? A Unfortunately, because I no longer work there, I cannot do so. Q Do you know what time Mr. Symons left your processing facility? A Without having the rest of the paperwork for the D.U.I. processing, I could not give you a definite answer. But I do know it was sometime in the early morning. Q Okay. There was a running clock on the videotape as we watched it. Did you see that -- A Yes. Q -- in the upper, left-hand corner? A Uh-huh. Q Is that a real time on the clock? A Yes. Q As far as you know, is it accurate? A Yes. Q So if a portion of the tape indicated 0030 hours, that would mean what? A That would mean that it was 12:30 in the morning. MR. HERSHEY: I have no further questions. THE COURT: Any redirect? 41 ~oL "'-~,~ "'.', I"" o o 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. EDWARDS: Very briefly, Your Honor. THE COURT: Okay. REDIRECT EXAMINATION BY MR. EDWARDS: Q Miss Morrow, in the year and a half that you worked in the processing center, approximately how many D.U.I. breath tests did you administer? A In the year and a half, probably well over 100. Q And you mentioned on cross-examination the Intoxilyzer 5000 -- I hadn't asked you earlier -- is that what you were using that evening? A Yes, it was. Q To your knowledge, does the Intoxilyzer 5000 detect the presence of drugs? A No, sir. If somebody is under the influence of any kind of controlled substance, they have to be taken for blood. MR. EDWARDS: Thank you. MR. HERSHEY: THE COURT: MR. EDWARDS: Nothing further, Your Honor. Thank you, Ms. Morrow. Your Honor, at this point I would offer Commonwealth's Exhibit Number 4, which is the actual tape from the Intoxilyzer 5000 into evidence. THE COURT: Okay. MR. HERSHEY: No objection, to that, Your Honor. 42 ~3. "',- ._, , 'I"" ::L.~,~ ~ . "~ () o 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 Very well. And with that the Department rests, THE COURT: MR. EDWARDS: Your Honor. THE COURT: Do you have any testimony that you wanted to submit? MR. HERSHEY: Your Honor, we have no testimony to submit. I would like to, for purposes of the written record, if I could just put a couple closing remarks on the record. THE COURT: Sure. MR. HERSHEY: The first issue that we dispute is whether Corporal Hepford -- and the case would be viewed from his eyes since he is the one that not only placed Mr. Symons under arrest, but was the person responsible for requesting chemical tests in this case. In the context of alcohol, the standard is pretty easy to meet for reasonable grounds for request of somebody to submit to a test. And the courts have not addressed that in the context of controlled substances. They have, however, in another in a related context, in a criminal context, indicated that before a police officer can render an opinion as to whether someone is under the influence of a controlled substance, there has to be some adequate foundation established, and granted there are different -- they are different ultimate issues, one being trial and one being reasonable grounds to request a test. 43 {/I- .' ~. I' o o 1 But to determine what is reasonable for the 2 officer, you still need to look at what his life experience on 3 that issue is. What I got out of his testimony, out of 4 Corporal Hepford's testimony, was this: About 25 years law 5 enforcement, on the job, at least 50 D.U.I. arrests, 3 or 4 of 6 those were related to controlled substances, that is what I 7 got out of it. 8 I didn't hear any testimony indicating that he had 9 any specific training in drug detection or the detection of 10 controlled substances. Moreover, Your Honor, in this 11 particular case, there was no evidence to indicate that 12 Corporal Hepford knew or should have known that Mr. Symons had 13 taken any of this substance Ambien that he has referred to. 14 Unlike the Commonwealth versus Dunne case, that I 15 cited earlier, there was no evidence that Mr. Symons had 16 advised Corporal Hepford that he ingested any controlled 17 substances. 18 There is no evidence of record that what Corporal 19 Hepford identified as being a receipt in the car of Mr. Symons 20 is, in fact, a controlled substance. And there is no evidence 21 of record or there is evidence where I asked Corporal Hepford, 22 Did you make any attempt to ascertain whether or not Ambien is 23 a controlled substance? His response was, No. 24 So he placed Mr. Symons under arrest for what he 25 believed to be a D.U.I. He asked him specifically to submit 44 /' ~5 . r;~Jl.,._~,,: ", ~". C"""." I" o o 1 to a chemical test of the breath. There was no mention during 2 the arrest of any additional chemical tests. Mr. Symons was 3 at the booking center for -- if you go from the time of arrest 4 to the time of the tape, at least a minimum of an hour before 5 he was requested to submit to any other test, and I would 6 argue that Corporal Hepford did not have reasonable grounds to 7 request a blood test under those facts. 8 The second issue is the Commonwealth Court fairly 9 recently in a 1998 decision M-I-L-L-I-L-L-I, 714 At. Second 10 521, 1998, has held that in order to justify a chemical test 11 of blood after there's been a breath test, the police have to 12 specifically advise the motorist why an additional chemical 13 test is necessary, and they talk about the importance of the 14 explanation. 15 There was some testimony by Corporal Hepford, I 16 think the Court asked the question, but I would argue that the 17 advice or explanation didn't go far enough. 18 Corporal Hepford never said, I have reason to 19 believe that you are under the influence of a controlled 20 substance. I think he said some substances, prescription or 21 otherwise, and the record will reflect what his exact words 22 were. 23 I don't even think that in his response to the 24 Court's question. He specifically said that he had reason to 25 believe he was under the influence of a controlled substance. 45 ~fa :_""""" .. ~ ,;~, -- ., -- '^', ..~ . ~' I r '''. ,"'-,~,. , 0 :,,',~~, "l' f"'1 ~",,-,",p' o 1 The final issue, Your Honor, has to do with DOT's 2 form and DOT's exhibit, which I think was number 1. At the 3 bottom of the form there is -- and I am reading verbatim. It 4 says, "Officer Note: The refusal to sign this form is not a 5 refusal to submit to the chemical test." 6 Well, that is not in question because there is a 7 signature on the form, but it goes on to say you must still 8 give the motorist an opportunity to take a chemical test after 9 reviewing this form. 10 Corporal Hepford indicated once the form was 11 signed, there was no additional offer or request to take a 12 blood test. So under the notice to the motorist under the 13 Department's own form, which according to Corporal Hepford was 14 read to Mr. Symons -- he should have been given the 15 opportunity to submit to a blood test after the form was 16 signed. That didn't happen. 17 So we would argue that that vitiates any attempt 18 by the Department to claim that this is a refusal as a matter 19 of law. And that is all I have, Your Honor. 20 THE COURT: Very well. Go ahead. 21 MR. EDWARDS: Very briefly, Your Honor, I have a 22 trial brief -- I am subbing for Mr. Kabusk. He prepared me 23 yesterday to come in and do this -- and I would like to offer 24 it and I just have a few remarks. 25 Your Honor, it must be kept in mind that the 46 Co7 ~ 1" 1 1'__ j~ , , :~'1l,~ '''1 ,",e"r__:,;" ",r' () o 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 here is not probable cause to arrest it is reasonable grounds, which both the pennsylvania Supreme Court and Commonwealth Court have held as a lower standard, and it's the reasonable grounds on the part of the police officer who requests the test that counts. And we submit in this case, both based upon his own experience, vast experience, more than 25 years of it, and the statements made to him by Ms. Morrow, that he had more than ample reasonable grounds to believe that there was something here. And this is a case about -- not controlled substances. Controlled substances, that whole argument is a red herring. We are not contending he was taking controlled substances. We don't know what he was taking. What we are submitting is that there was something there more than alcohol. The breath test itself established that he wasn't under the influence of alcohol, but he was under the influence of something. That was the reason we played the tape for Your Honor, again, to buttress the testimony of Ms. Morrow and the Corporal. Controlled substances, that is not our burden of proof. We are not contending that it was controlled substances. As the Corporal testified, he found this he takes Mr. Symons in believing he was under the influence of alcohol. He goes back to the incident scene, develops that 47 for I' I', i;-_ '1_' (~~ -~ p o 1 Mr. Symons is not under the influence of alcohol alone. He is 2 under the influence of something more than alcohol, which is 3 why he blew a .018 and .017. 4 Corporal Hepford finds these drugs. He reads on 5 there you are not supposed to drive, especially don't drive 6 and take alcohol with them. And that together with his own 7 experience, Ms. Morrow's experience, had what she observed 8 when he was there, which you just saw on the tape. She 9 conveyed to him, gave him more than ample grounds to believe 10 that he was under the under the influence of something other 11 than alcohol. 12 THE COURT: Is it unlawful to operate a vehicle 13 while under the influence of alcohol and some over-the-counter 14 medication? 15 MR. EDWARDS: Yes, Your Honor, it is. 16 THE COURT: Oh, okay. 17 MR. EDWARDS: One who cannot safely operate -- 18 and there are cases that deal with -- 19 THE COURT: I haven't looked at the controlled 20 substance section. 21 MR. EDWARDS: Controlled substances or 22 uncontrolled, you are not allowed to control a vehicle when 23 you are unsafe to drive. Alcohol is what we are most familiar 24 with. 25 I could, if Your Honor wanted, I could give you 48 ~1 ,~,? ~.<' "',I', I' ~, , ,,'. ..0,' .. jr(~- n " .J () 1 some cites to cases involving hydrochlorothiazide and 2 tenorming, that is in the case of Hoffman versus Department of 3 Transportation at 6872 A.2d 395. 4 THE COURT: What is the page number? 5 MR. EDWARDS: 6872 A.2d 395. This isn't directly 6 on this point. It was a knowing and conscious refusal issue 7 in that case, but it is just one of several cases that have 8 dealt with alcohol and drugs, and in this case a prescribed 9 drug. 10 And again, I don't offer it for that point, but 11 just to indicate to Your Honor that there are cases that have 12 dealt with this issue of alcohol and something else. Again, 13 this whole thing about controlled substances, we submit is 14 nothing but a red herring. 15 Your Honor can of course review the testimony. We 16 would submit that Corporal Hepford did properly advise 17 Mr. Symons why he was asking for a blood test after he passed 18 the breath test. He made that very clear to him. 19 And this argument about it not being a refusal 20 because he wasn't asked again after he signed the form, that 21 also we submit is a specious argument, both the Supreme Court 22 and the Commonwealth Court have held in many cases that once 23 the warnings are read, the motorist is required to immediately 24 agree. Anything less than immediate acceptance is a refusal. 25 In this case we have more than that. We have an 49 76 . ""'--', ."O"d , ,> '~,!\I!III, n o 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 actual refusal. I am tired. I am not going to do this. I am not going to give you a blood sample. With that, Your Honor the only other thing -- THE COURT: Hand me your memorandum and I will take a look at it. MR. EDWARDS: THE COURT: I have a copy for Mr. Hershey. I didn't know if Mr. Hershey wanted to reply to it. MR. HERSHEY: I would, Your Honor. Are you finished? MR. EDWARDS: Yes, I am finished. (Whereupon, Mr. Edwards handed memo to the judge.) MR. HERSHEY: I wholeheartedly disagree with Mr. Edwards on one point, and that is it is incumbent, you cannot be convicted,of a D.U.I. with a blood alcohol under 05, under the influence of prescription medication, which is not a controlled substance. As a matter of statute and a matter of case law, you cannot be convicted of DUI with a BAC under 05, under controlled substance, which is not a controlled substance under the Drug Device and Cosmetic Act. THE COURT: I will look at that very closely, because I have questions about that very issue. Okay. Unless there was anything further in this case, we will be adjourned. (Court adjourned at 10:45 a.m.) 50 II -,. ,'Ot ,. '" - n () 1 CERTIFICATE 2 3 4 I hereby certify that the proceedings are contained 5 fully and accurately in the notes taken by me on the above 6 cause and that this is a correct transcript of the same. 7 8 9 RPR 10 11 12 13 14 The foregoing record of the proceedings on the hearing 15 of the within matter is hereby approved and directed to be 16 filed. 17 18 19 J: 13 t<JDI 20 21 22 23 24 25 -/1i A. Hess, J. Judicial District 51 I),. I',~,., ",<_","_",~"",."~",,,,sr,, ",''''-''''' "__~ I'o'!'- ",-, ",J ,~~i!i_'ilIU!ilil~:iM81i\ll1l\l.""'w"'411ll1i~ "~~"'"~*Wi......~lltliJlII>I;_ -"'~'l r' ,.."""-.i.'n.(g"..".,,~w~~^l1 . , m~__il' ,"-~,~""- \-',\I~\ O",:~'\C~.-.......'t v "", '(",\,: "I/."P', 't,,",",',,' ,';"\ U:-' II'" \ I'J: <1'1 ", \) ',. ....,,1 C\JM~€~~~1tvk~t1Y P\ 0; 25 H~ j ,J ,.. \. ,j . o o STEPHEN M. SYMONS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-264 CIVIL CIVIL ACTION - LAW COMMONWEALTH OF PA., DEPT. OF TRANSPORTATION, BUREAU OF DRIVER LICENSING LICENSE SUSPENSION APPEAL IN RE: OPINION PURSUANT TO RULE 1925 This is aIi' appeal by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing from our order of April 3, 2001. The order vacated a suspension of the driver's license of petitioner, Stephen M. Symons. The matter complained of on appeal is as follows: The trial court errs as a matter of law when it held that the arresting officer did not have reasonable grounds to request that Appellee Symons submit to a blood test after Appellee Symons submitted to a breath test and provided a sample that yielded a blood alcohol content (BAC) of 0.01% where: a. the officer observed that Symons was visibly impaired by some substance; '" b. the officer found a receipt for a prescription drug, dated the same day, in Symons motor vehicle; c. Symons was involved in a single-car crash; d. in the officer's opinion Symons's BAC of 0.01 % did not account for the level of impairment that the officer observed upon Symons; and e. the arresting officer fully informed Appellee Symons of his suspicions and the reason why the officer wanted Symons to submit to the blood test. 73 fl1lf1ll1 ~,' ^ .;l\llmllii1lilitiim~.~~~~~.ae.'\j1~h.';i1Mi--'i;;,';f&ffi~oll~~I~~!lliiIiIlIiIi:tt1"-""""""'"""""'_~~ OF .. ,/i(F~~~'~lNlY C'I o J(II..! I J'" ">, In I, 1-111 Ij: 1..8 CUM8L:FlLJWD (Y'U ,oENrIjSYLV,tj)V~ N1Y ~ . c; '''- " 01-0264 CIVIL o o The license suspension arose out of incidents that occurred on November 1, 2000. Corporal Collin H. Hepford, Jr. of the Lower Allen Township Police responded to the scene of an accident involving an automobile that had driven into a ditch. The operator, Mr. Symons, was still behind the wheel. The police officer assisted Mr. Symons in exiting his car. The officer noticed that Mr. Symons was, though well dressed, somewhat disheveled. He had a stagger in his walk and his eyes were bloodshot and watery. The officer was able to detect an odor of an alcoholic beverage on his breath. He described Mr. Symons's speech as "mushy. [I]t all blended together at times." Mr. Symons indicated to the officer that he was corning from the Maverick Steakhouse in Harrisburg and was en route to his home in Bowmansdale. The officer realized that the accident scene was not appropriate to that route of travel. On the walk-and-turn test, the defendant took too many steps, missed the heel-to-toe and was off the line. The one-leg stand was not attempted. Mr. Symons was then taken to the booking center and Cpl. Hepford returned to the scene. The officer found some prescription instruction sheets in the car though he found no medication. There was a receipt for a prescription in the amount of $61.77. The officer also discovered an advisory leaflet from The Medicine Shoppe for a drug called Ambien. While waiting at the scene for a tow truck, Officer Hepford received a telephone call on his cell phone advising him that Mr. Symons blood-alcohol registered at an extremely low .018 percent. Officer Hepford returned to the booking center where he explained to Mr. Symons that, given the low blood-alcohol reading and his observations, the officer felt that Mr. Symons was being affected by some type of medication or controlled substance. He was therefore asked to go to the hospital for a blood test. Symons responded that he was tired, "it was too late, and he didn't '. 2 '14- i~,:~~_ ,~, ",~, ".,' " ,',_" 01-0264 CIVIL o o want to go to the hospital." Mr. Symons eventually signed a form to the effect that he was refusing a blood test. At the hearing held in this case, Officer Hepford testified that he found no drugs or drug containers in the car. He also indicated that, during his encounter with Mr. Symons, he did not know what Ambien was nor did he know whether or not it was a controlled substance under the Drug, Device and Cosmetic Act. He indicated, further, that Mr. Symons had explained the accident by saying that he had fallen asleep. It is the rule in Pennsylvania that, if more than one chemical test is requested by a police officer, "the police officer must offer sufficient evidence to establish the 'reasonableness' of such a request." Dent. ofTransn. v. McFarren, 514 Pa. 411, 418,525 A.2d 1185, 1188 (1987). We are satisfied that the Department's argwnents about reasonableness in this case are constructed upon a foundation which is fundamentally flawed. This is evidenced by the argument at the conclusion of our hearing. Portions of the argument consisted of the following exchanges: MR. EDWARDS: Your Honor, it must be kept in mind that the standard here is not probable cause to arrest, it is reasonable grounds, which both the Pennsylvania Supreme Court and Commonwealth Court have held as a lower standard, and it's the reasonable grounds on the part of the police officer who requests the test that counts. And we submit in this case, '.. that he had more than ample reasonable grounds to believe that there was something here. And this is a case about -- not controlled substances. .... Weare not contending he was taking controlled substances. We don't know what he was taking. 3 .-"' 7] ',," "r-,c' ,,' ' ~ - . ]: , I, I 01-0264 CIVIL o o Cpl. Hepford finds these drugs. He reads on there you are not supposed to drive, especially don't drive and take alcohol with them. And that together with his own experience... gave him more than ample grounds to believe that he was under the influence of something other than alcohol. THE COURT: Is it unlawful to operate a vehicle while under the influence of alcohol and some over-the-counter medication? MR. EDWARDS: Yes, Your Honor, it is. N.T., pp. 46-48. We have reviewed 75 Pa.C.S.A. 3731 dealing with driving under the influence. We are unable to find any support for the argument advanced by the Department. To the contrary, all references to being under the influence of anything other than alcohol are to controlled substances. We are satisfied that this case is controlled by the holding in Com.. Dent. ofTransn.. Bur. of Driver Licensing v. Penich, 112 Pa.Cmmwlth. 303, 535 A.2d 296 (1988). In that case, unlike this one, the court held that the record was "devoid of any testimony of the police officer indicating the specific type of behavior on the part of Licensee that led to the police officer's suspicion."] Not only germane but also, we believe, controlling in this case is the observation of the Commonwealth Court which followed: Furthermore, there is ... no testimony indicating that the officer suspected that the tablets found on I We do not get the impression that the outcome of Penich depended entirely on this observation as it had been stipulated in that case that the police officer, as in the matter sub judice, had "reasonable grounds to believe licensee was driving under the influence." Id. at 307,535 A.2d at 299. 4 f~ ~"'. , - - I[t1 ~,""___~,O" ^____ ~ __ ,,' . o~ "~, . . 01-0264 CIVIL o o Licensee's person were controlled substances, but merely a prescription drug. Rather, it appears that the police officer, having failed through the two breath tests to acquire enough evidence to raise an inference of Licensee' s driving in violation of Section 3731 (a)(4) of the Code, was seeking to "enhance the evidence and guarantee a conviction," precisely the sort of conduct proscribed by our Supreme Court. Penich, 112 Pa.Cmmwlth. 303, 307-308, 535 A.2d 296, 299. We believe it is the law that the police officer must have reasonable grounds to believe that the defendant is operating a vehicle under the influence of a controlled substance, and not merely some sort of medication, and that there was no such reasonable grounds in this particular case. We conclude that the suspension ofMr. Symons's license, for his refusal to take a blood test, was improper. :r1m ..:ft:;,jA /L ~~ \) June 15"',2001 David Hershey, Esquire For the Petitioner Timothy P. Wile, Esquire For PennDOT 5 77. l It;~,~_,--<.."" ~"~",,,, _"",.,J" ,", C''',' ~'I,JI'" _ r, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEIDCLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER-THIRD FLOOR IIOI SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 TELEPHONE: (717) 787-2830 FAX: (717) 705- II22 March 30, 2001 The Honorable Kevin A. Hess Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 Re: Stephen M. Symons v. Commw. ofPa., DOT, BDL, No. 01-264, Civil, Cumberland County, License Suspension Appeal Dear Judge Hess: Please accept this letter as the Department of Transportation's pre-hearing brief in the above-mentioned matter. A hearing is scheduled to be held in the above-mentioned matter on March 30, 2001. The Department expects the issue in this case to be whether the officer had reasonable grounds to request a second chemical test. By official notice dated December 14, 2000 the Department of Transportation notified the motorist, Stephen M. Symons, O.L.N. 12000460, that as a result of his violation of Section 1547 of the Vehicle Code, regarding Chemical Test to Detennine Amount of Alcohol or Controlled Substance, on November 3, 2000 his operating privilege was being suspended for one year. The petitioner appealed the one-year suspension of his operating privilege. The Department will present the testimony of Corporal Callin H. Hepford, Jr. Corporal Hepford will testifY that on November 3, 2000 he responded to an accident reported to him by Corporal Williams. Corporal Williams, while off duty, came across an accident and reported the accident to which Corporal Hepford responded. The petitioner had gone off the road and was stuck partially down an embankment. The petitioner blew out his tires by spinning them in an attempt to get unstuck. Officer Hepford detected an odor of an alcoholic beverage from the petitioner and noticed that the petitioner had slurred speech and was swaying and confused. The petitioner admitted to having a "couple of beers" and that he was going home after having been at a restaurant. Officer Hepford then requested the motorist to perform field sobriety tests. The petitioner failed the HON test and failed the walk and turn test. Officer Hepford did not request the petitioner to perform a one legged stand because of his concern for the motorist's safety due ~~'~'~"'~'''' _ l!Jl'flllr'Ji.~ i, to petitioner's level of impairment. Officer Hepford advised the motorist that he was under arrest for Driving under the Influence. He then searched the petitioner and placed him in his police vehicle. Officer Hepford noted that the petitioner's speech was slurred, "mush mouthed" and almost was unintelligible. Officer Hepford transported the petitioner to the West Shore Booking Center for booking and an alcohol breath test. Upon arrival at the West Shore Booking Center, Officer Hepford read to the petitioner the chemical test warnings. Officer Hepford then left the Booking Center after he had turned the petitioner over to the Booking Agents. The Department will present the testimony of Booking Agent Jennifer Morrow. Booking Agent Jennifer Morrow, who is a certified breath test operator, will testify that she was the breath test operator who administered an alcohol breath test to the petitioner. A video tape was made of the petitioner's breath test. Booking Agent Morrow instructed the petitioner regarding the procedures of the test. The petitioner did provide two adequate breath test samples. The samples revealed a .018% BAC and a .017% BAC. Booking Agent Morrow suspected the presence of a substance other than alcohol as the cause of the petitioner's impairment. The petitioner's BAC levels were very low when compared to the petitioner's manifest impairment. Suspecting drugs to be the cause of impairment, Booking Agent Morrow wanted the breath test results be reported to Officer Hepford. Officer Hepford was informed of results of the alcohol breath test. Officer Hepford then returned to the Booking Center. Officer Hepford discussed the low BAC readings with Booking Agent Morrow. The two of them agreed that given the level of impairment exhibited by the motorist, and the low BAC readings, some other substance must be the cause of the impairment. The petitioner had been put in a holding cell after the completed breath test. Officer Hepford and Booking Agent Morrow approached the petitioner. Officer Hepford advised the petitioner that he was requesting an additional chemical test. Officer Hepford told the petitioner that he was requesting a second test because of the obvious impairment displayed by the petitioner which could not be attributable to alcohol because ofthe low BAC readings. Officer Hepford told the petitioner that he suspected the petitioner was on drugs and that he wanted to find out what was causing his impairment. Additionally, Officer Hepford read the DL-26 to the petitioner word for word. Officer Hepford advised the petitioner that he was taking him to the hospital for a blood test. The petitioner responded by telling Officer Hepford that he was not going to the hospital and that he would not submit to the blood test. The petitioner signed the DL-26. The Department bears the burden to establish the facts supporting the one year suspension pursuant to Section 1547 of the Vehicle Code. Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). The Department must establish the following: (1) thahhe motorist was arrested for a violation of75 Pa. C.S. 93731; (2) by a police officer who had reasonable grounds to believe that the motorist was 2 ~ -~~ ^- operating or in actual physical control of a motor vehicle while under the influence of alcohol or a controlled substance; (3) that the motorist was requested to submit to a chemical test; (4) the motorist refused to submit to that test; and (5) the motorist was warned of the consequences of refusing the chemical test. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997); Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994); Ostrander v. Department of Transportation, Bureau of Drive Licensing, 116 Pa. Cmwlth. Ct. 243, 541 A.2d 441 (1988); Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). In the context of implied consent law, the test for reasonable grounds is a lesser standard than probable cause. The test for reasonable grounds is not very demanding. "If a reasonable person in the position of the arresting officer, viewing the facts and circumstances as they appeared to the arresting officer, could have concluded that the motorist had operated the vehicle while under the influence, such reasonable grounds are established." Keane v. Department of Transportation, 127 Pa. Commw. 220, 561 A.2d 359 (1989). See also Banner v. Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203 (pa. 1999); Vinansky v. Department of Transportation, Bureau of Driver Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995); Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commw. 201, 363 A.2d 870 (1976). Reasonable grounds may exist without any witness having observed the motorist actually operating a motor vehicle. Menosky v. Commonwealth, 121 Pa. Commw. 464, 550 A.2d 1372 (1988); Polinsky v. Department of Transportation, 131 Pa. Commw. 83, 569 A.2d 425 (1990). A police officer may rely upon information provided to the officer by third parties in order to establish reasonable grounds. Patterson v. Commonwealth, 138 Pa. Commw. 292, 587 A.2d 897,(1991). The police officer is permitted to testify what the officer was told by those third parties in order to establish reasonable grounds. Menosky v. Commonwealth, 121 Pa. Commw. 464, 550 A.2d 1372 (1988). An officer's reasonable grounds is not rendered void even iflater it is determined that the officer was incorrect. Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commw. 201, 363 A.2d 870 (1976). The legality ofthe underlying criminal offense is irrelevant. Department of Transportation v. Wysocki, 517 Pa. 175, 535 A.2d 77 (1987). Once a police officer has requested the motorist to submit to a chemical test, there is only one acceptable response; that is, an unqualified, unequivocal assent to submit to the requested test. Department of Transportation, Bureau of Driver Licensing v. Stay, 114 Pa. Cmwlth. Ct. 532,539 A.2d 57 (1988); Department of Transportation, Bureau of Driver Licensing v. Groscost, 142 Pa. Cmwlth. Ct. 36, 596 A.2d 1217 (1991); Millili v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 111 (Pa. Cmwlth. 2000). The choice of test is entirely within the officer's discretion. Mooney v. Department of Transportation, Bureau of Driver Licensing, 654 A.2d 47 (Pa. Cmwlth. 1994); Sladic v. 3 ;"~"'---"'"' , , Department of Transportation, Bureau of Driver Licensing, 164 Pa. Cornrow. 619, 643 A.2d 1155 (1994); McCullough v. Department of Transportation, Bureau of Traffic Safety, 122 Pa. Cornrow. 415, 551 A.2d 1170 (1988); Department of Transportation, Bureau of Driver Licensing v. Penich, 112 Pa. Cmwlth. Ct. 303, 535 A.2d 296 (1988). A police officer does not have unfettered authority to request a second test. A police officer may not request a second test merely to enhance the evidence or guarantee a conviction. Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987)(plurality decision). The request for a second test must be reasonable. It!. Whether the officer had reasonable ground to request the test is a question oflaw for the court to decide based upon the facts of the case. Department of Transportation, Bureau of Driver Licensing v. Penich, 112 Pa. Cornrow. 303, 535 A.2d 296 (1988). A police officer has reasonable grounds to request a second test if the first test is inconclusive due to faulty equipment or faulty performance by the motorist. Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987)(Plurality decision); Department of Transportation, Bureau of Driver Licensing v. Penich, 112 Pa. Cornrow. 303, 535 A.2d 296 (1988). An officer does not have reasonable grounds to request a second test merely to substantiate the accuracy of the first test or to enhance the evidence and guarantee a conviction. lJepartmentofTransportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987)(Plurality decision); Department of Transportation, Bureau of Driver Licensing v. Penich, 112 Pa. Cornrow. 303, 535 A.2d 296 (1988). In Penich, the motorist was requested to submit to a breath test. The motorist provided two adequate samples, a .10% BAC and a .09% BAC. Department of Transportation, Bureau of Driver Licensing v. Penich, 112 Pa. Cornrow. 303, 535 A.2d 296 (1988). The officer felt that the breathalyzer readings were inaccurately low because ofthe behavior of the licensee. Additionally, the officer found a bottle of what appeared to be prescription drugs. The officer then requested the motorist to submit to a blood test that the motorist refused. The officer did not testify to any specific type of behavior on the part of the licensee that led to the officer's suspicion that the licensee was on drugs. The court felt that the request for a second test was unreasonable because it felt that the officer having failed to acquire enough evidence through the breath test for a violation of 3731(a)(4) was seeking to enhance the evidence and guarantee a conviction. In this case, there was no indication that the machine malfunctioned. In fact, the machine was functioning properly and the officer did not doubt the readings. Additionally, unlike Penich, here the readings were .017% and .018% which are not even close to .10%, the level of alcohol by weight in the blood which is prima facie evidence that a person is under the influence of alcohol to a degree which renders the person incapable of safe driving. See 75 Pa. C.S. 3731. Here the motorist exhibited severe impairment that was not consistent with such a low BAC reading. The officer had ample reasonable grounds to request a second chemical test. Officer Hepford was not merely trying to enhance evidence but was trying to determine the presence of a controlled substance or substances. 4 ~0!lN l"o, .. ""~~l When a officer requests a second chemical test, the second chemical test must detect the presence of alcohol or a controlled substance that the first chemical test could not detect. See Blair v. Commonwealth, 115 Pa. Commw. 293, 539 A.2d 958 (1988); Department of Transportation, Bureau of Driver Licensing v. Patton, 159 Pa. Commw. 351 633 A.2d 234 (1993). In Blair, the motorist submitted to the requested blood test. Blair v. Commonwealth, 115 Pa. Commw. 293, 539 A.2d 958 (1988). The officer then requested the motorist to submit to a urine test. The officer requested the second test because he thought there was more than alcohol involved. The motorist refused to submit to the second test. The court reversed the lower court which had dismissed the motorist's appeal because there was no evidence that the blood test alone was an insufficient means of obtaining a determination as to whether the motorist was under the influence of a controlled substance as well as alcohol. The first test could have detected the presence of both alcohol and drugs. In Patton, the motorist submitted to the requested blood test. Department of Transportation, Bureau of Driver Licensing v. Patton, 159 Pa. Commw. 351 633 A.2d 234 (1993). The officer then requested the motorist to submit to a urine test because the officer had been informed that a urine test was more effective in determining the presence of controlled substances. The motorist refused to submit to the second test. Like Blair, the court reversed the lower court which had dismissed the motorist's appeal. The court would not accept the officer's testimony as competent to prove that the urine test was necessary to detect the presence of a controlled substance after a blood test had been administered. Like Blair, the first test could have detected the presence of both alcohol and drugs. Additionally, it appeared to the court that the second test was to substantiate the accuracy of the blood test or to enhance the evidence and guarantee a conviction. In Jackson, the officer had reasonable grounds to determine the motorist was driving under the influence because the officer detected both the odor of alcohol and freshly burned marijuana. The officer requested and the motorist submitted to the requested breath test. Department of Transportation, Bureau ofTrafjic Safety v. Jackson, 113 Pa. Commw. 253, 536 A.2d 880 (1988). The officer, who believed that the motorist was also under the influence of a controlled substance, which would not be detected by a breath test, also requested the motorist to submit to a blood test. The motorist refused to submit to the second test. On appeal, the court reversed the lower court which had sustained the motorist's appeal. The court determined that the request for the second test, blood, was reasonable because the first test, a breath test, would not have revealed the presence of controlled substance in the motorist's system. The court stated that the second test was not requested simply to substantiate the accuracy of the first test for alcohol, but rather, was requested in order to determine whether the licensee was under the influence of a controlled substance. Additionally, in Jackson, the court held that the second test was reasonable even though a single blood test could have been used to detect both alcohol and marijuana. In this case, like Jackson, the first test was a breath test and the second test was a blood 5 ~~~. ~,. test. The motorist submitted to the first test, which was requested to detect alcohol, and refused the second test, which was requested to detect the presence of a controlled substance. It is completely reasonable for an officer to request a breath test to determine the presence of alcohol and a blood test to reveal the presence of a controlled substance when the officer has reasonable grounds to request the second test. The combination ofthe first test as a breath test to determine the presence of alcohol and the second test as a blood test to determine the presence of a controlled substance is unlike the cases where the first test was blood and the second test was urine. In the blood test and urine test cases, the court wanted proof that the first test would be inconclusive to detect the presence to the suspected intoxicant and that the second test would indeed detect the presence of the suspected intoxicant. Whereas in the breath test and blood test case, an alcohol breath test only can test for alcohol and can not reveal the presence of a controlled substance. In fact, in Jackson the court stated that an alcohol breath test would not reveal the presence of a controlled substance. Additionally, the Department's regulations relating to Administering Chemical Test refer to a breath test as an "alcohol breath test" and define an "alcohol breath test" as a chemical testing of a sample of a person's expired breath, using breath test equipment designed for this purpose, in order to determine the concentration of alcohol in the person's blood." 67 Pa. Code 77.22. Officer Hepford's request for the blood test was reasonable. The breath test, which tests only for alcohol, revealed low BAC readings. Officer Hepford and Booking Agent Morrow both suspected that drugs were the cause of the impairment because of the petitioner's manifest intoxication. The blood test could reveal the presence of controlled substances which a breath test could not. When a officer requests a second chemical test, the officer must inform the licensee why a second test was requested. Karabinos v. Department of Transportation, Bureau of Driver Licensing, 739 A.2d 601 (Pa. Cmwlth. 1999). In this case, Officer Hepford informed the petitioner why the second test was requested. He told the petitioner that based upon the low BAC readings and the petitioner's manifest impairment, that he suspected the petitioner was under the influence of a controlled substance and that he wanted the petitioner to submit to a blood test to detennine the presence of a controlled substance. Officer Hepford had reasonable grounds to request the second test. With regard to the requirement that evidence be presented regarding the request for a second test, the evidence reveals that Officer Hepford requested the second test because of the low BAC readings from a breath test machine that was functioning properly coupled with the petitioner's manifest impairment. With regard to the requirement that the first test would be inconclusive and the second test would determine the presence of the suspected substance, the breath test can only test for alcohol while blood can detect both alcohol and controlled substances. And finally, with regard to the requirement that the officer tell the motorist the reason for the second test, Officer Hepford did tell the motorist that he was requesting the blood test to determine the presence of an controlled substance, that is drugs, other than alcohol. Based on the aforementioned, I respectfully request that the Court dismiss the motorist's 6 '~fillI\'ll appeal and reinstate the suspension. SaY' . [< L~bUSk Assistant Counsel GKlgk cc: David E. Hershey, Esquire, Mancke, Wagner, Hershey & Tully, 2233 North Front Street, Harrisburg, PA 17110 Frank Bach, Assistant Counsel in Charge, Driver Licensing Section 7 '~~ I"'f-'I "I , ~ .,.,.".,:oc"~,,,"', " "'-.'",'>',..", /,,,', ", ,\,': '. CM I UK:.. ',,[. .' ',.',,' .,..' ;.r ,. '., ' . I N,1,i9.i,~ ~~ilif,', ",I~".,"E'R (~L C: PH. Ol;".'.'..'.J'.l. iN...... ,.f1, .'.'.."',.",,',,(2 ER PA'Ii!!#{i!I!lI!!!t' 5101010 SN 64":0-l!i1879 . 11 /€(3/~iZi . '.,. "'!i!i!!!!!' ;,:,:--;~~~ ,: '2 ~ 010 :-Z9 ':l'~';;i'"", .@:32'" ," '-;"L0:' 32, ',':>"'~ ", . 095 ,.l,:le:"3t's" > .~~eA\~0:3 3',,< "-0;~;';r:>:7v-'~, - DETI'::CTEO.."" ".., .--' 1ft~lx&}J~~~~ri0f~:ii~~~~~J,2Z,!~~*i;~~;:~1'N,~jtJj::t'1*,~j,/;}~~~4t,'i1;jN~1~~" - TEST),) ",.DIMNOS'tI C OK AI RlzL.AHI<: . SL\BJECTTEST AIR BLt::iNK . SU8JEJ;:'TTEST 'A rRElLA~K CAl-,CHECK f,lJR~U~~JK ti-JP.Rf I I I V I, I , ,_.~-" };SAC .e00 .1318 .kl00 .1017 .131310 , " 'rI t1 E ~ . COMMONWEALTH'S EXHIBIT If i'~-o\ uc..-r ,;y"" W,V(( TIME FIRST OBSERVED ,', ,~ . " Il'ilfO,)(lI..YZER',lOCA.TION ",... ,1 .'.. "', Jernt);Cf"' L"'~or~" :/ OPERATOR >~" ~ :ADOIT1ONAlINFORMA"T1ON ANDIOR'REMAR)<:,~_-< '\, 'I I 1 ,) , II CUMBERLA!JID COlJNTY ow DEPT. ~"..,.,~~."".~"""'"""'-""."'''';",'','''''''''''''~...~'''*'~~_,-w,,'''''' ::,.,.-, 01..,.., 17.'" (2} CHEMICAL TESTING WARNINGS AND REPORT OF REfUSAL TO SUBMIT TO CHEMICAL TeSnNG AS OO::Vf.2 AUlKORliEO BY OF THE VEHICLE CODE 61.14- '~18L-' .1. CJ.~;~,i"t SECTION 1547 !, IIX STATE f :>"'0 (). loa SECTION 1547. CHEMICAL TESTING WARNINGS i. f'tea18 be ad1Iaed W1a1 you a.. now under ....11 lor drMng under the Innue.- of aIc:ohol ar a con~ed auba_ punU8l'll1o I8CIIon 8731 of , ..,. Vehicle Code. ,', A . 2. . .,:, ..q~..lIng 11181 you lubmlllo a chemlcal"ll o'.nJ 0 o. , , (brealh. blood ar urine, OIficer chao"l ... cheriW lIIIt) 3. Ills my duly. II I police olllcer, 10 Inlorm you 11181 Hyou reluselll submlllo the chemlcal..slyouroperating prIvIJell9 wlIIlie IUSpenclPd lor a period 01 _"'If. '. , . . 4. al The consllVllanal rights you have as a criminal dehindant, CQmmonly kn, own '11iIa Miranda Rlghll,lndu",nglll. rfghllo lpellk wi",. --.. 8nd the rlghl" rell1llln silent, apply only 10 criminal pn>lecutianl and cia IlOI,apply 10 Ihe chemical "Iting procedunr ul1!kor ~aylvInI&"l~ C'anianllaw, wfIlch II , c:lvll. nol a criminal proceecRng. . .. . bl You h.vellO rlghllOlpellk 10 a lawyer, or anyone el18. before taking i1i. chenilcall8Sll8quell8dby 111. pollca om-nordoyou have a rfght 10 rumaln sflon11'll1en.iaaked by 'the ponce officer III lubmlllll Ill. chemlC!'ltell Unleis you eg_1o aubmillO the inl requall8cl by Ila poUce ollIcer your concllCl wll be deemed 10 .be refulal and your operating prlVl1eg. will be suspended lor one year. . .- cJ Your relulll \0 IUbmlllo chemical msting under Iha Implied Con...nl Law m.y be InlrDduCGd Into ."'den... In a crimlnal_llan for1lrlvlng while undtr the "Ruance 01 alcohol or a conlrolled substan.... ."'. . ' '" . " .' . ..'. I have been ad..ed '" lhe above. . C' Signalure 01 MolorlSl: Molorist ",'used 10 sign, aller being advIsed. Signalu'" 01 Olllcar: rallng.p\1vlloll9 an19"ve the molorlllen~~ , Dal8: "3 ~ y-cJ -_..~ )/ir~ Dala: AFFIDAVIT I. The above motorial was placed under arresl lor driving under tha Influence 01 alcohol or a canlrolled lubsl8n6> In YIolallon 01 Saction 373\ 01..... Vehicle Code, and \he", were reasonable grounds to bene... 1I1al1l1e aboVe motorlsl had been driving. operating or In actual phyalcal COIIlroI 01 111. movemllll ola molor vehlcl. while und.r 1I1.lnnuence 01 alcohol or a aonlrDn.dnbstanCl or both. . , . or Thai the aOO,a named molorl.sl was Involved In an eecklenlln which the opera!or or passenger 01 lIIly vehicle Involved or a pedeslrlan IlIqulrud l7ealm.nl aI, metical laenily or was killed. " 2. 1hellbove motorlsl wal requelted 10 lubmlllo chemical lasting as authorized by Section \547 olth. Vehicle Code. s.llie .above motorisl was Infonned by a ponce orocer 01 lIle chamlcallest warning. conlalned In paragraph 8 and 4 abow. 4. The above """,,d motorlll r.lvled 10 subnillto chemlcallesOng. . . OFP,CERNOlE: Th. relu..1 10 algn 'hla lorm I. nol . ralulal 10 lullmll 10 lb. cheml..., I.ll You mual.llIIg"'. lb. ",olorlat . nllYllo Ilk. lh. chemlcalt..I .lIlr r.vlawlnll Ibl. lorm.II Ih.lndlvldu.l_. o.....Ung. comm.lOlaI ",olor vahlcle I" h. .Icohol or. conlrolled .ull.l.nc.ln Ihelr .y.l.m, you MUI' al.o compl.l. lb. rav... .0 hi. form. . '- A ~c.J OlOcer Signature: YEAR OlllcerNarne: {it ('..Ii;, ~JPeI!J:J:t;oIjl' Badge Number. tea t/ . JUriSdlcUonj"ju.t~ Ai/hl 1:t. Phone: t2JLJ 975- )S'J~ Mailing Add",SI Ie; q 3 tl~....",..1 A V( . (;'/' ;i/l: fA. J HII z o F: !:I a: is o :z Forward 10; D.aparimenlol Transportation Bureau of Driver LIcensing P.O. Box 2253 Harrisburg, PA 17105 COMMONWEALTH'S EXHIBIT , 3'$O'CI l..1L.T Nole: Any pertfnent faclS not covered by the aIRdavl1 should be lubmlued on a separale Iheel and aUached herelo. That Iheel Ihould Include the nemes 01 additional ",lIn.sse. nllCel5lry 10 ",oye the elements to whIch you have a/la.lI/d. ADDITIONAL SUPPLIES OF THIS FORM MAY BE SECURED BY COMPLETING FORM OS-SllA THIS FORM"'AY BE DUPLICATED :!-fMi~, "~"I"',~""~"""" ~~ - ~" ... 701 BRIDGE STREET ,', ~ / , " " NEW CUMBERLAND PA 17070 , ,'~ (717)774-6262 S EPHEN SYMONS Dr. T CULLEN RPH SAM NEELY RPH AMBIEN 10MG TAB [00025-5421-31] TAKE 1 TABLET AT BEDTIME PATIENT ADVISORY LEAFLET Rx# C25943 R 11/02/00 Qty 30 DR. MUST APPROVE REFILLS GENERIC NAME: ZOLPIDEM (zole-PI-dem) COMMON USES: This medicine is a sedative-hypnotic used for the short-term treatment of insomnia (difficulty falling or staying asleep). HOW TO USE THIS MEDICINE: Use this medicine exactly as directed by your doctor. THIS MEDICINE WORKS.VERY QUICKLY; take this medicine right before going to bed. Use it only when you will be able to sleep 7 to 8 hours or longer. STORE THIS MEDICINE at room temperature, away from heat and light. CAUTIONS: DO NOT EXCEED THE RECOMMENDED DOSE or take this medici.ne fOr longer than prescribed without cheCking with your doctor. Exceeding the recommended dose or taking this medicine for longer than prescribed may be habit-forming. DO NOT DRIVE, OPERATE MACHINERY, OR DO ANYTHING ELSE THAT COULD BE DANGEROUS until You know how you react to this niedicine. Using this medicine alone, with other medicines, or with alcohol may lessen your ability to drive or to perform other potentially dangerous tasks. CHECK WITH YOUR DOCTOR if you continue to hav,! trouble sleeping or notice changes in your behavior or thinking. FOR WOMEN: THIS MEDICINE IS EXCRETED IN BREAST MILK. DO NOT BREAST-FEED while taking this medicine. POSSIBLE SIDE EFFECTS: SIDE EFFECTS, that may go away during treatment, include daytime drowsiness or dizziness. If they continue or are bothersome, check with your doctor. If you notice other effects not listed above, contact your doctor, nurse, or pharmacist. Aenlar Systems, Inc, Copyright 2000 First DataBank, Inc, Expires 01/15101 COMMONWEALTH'S EXHIBIT 2- :3'300 '0\ LJ~:r . :~...",","~A.'!Ill''':r'r,. "- 'h\~ ~ ~~ .~"",' , 1""'''1 . . RECEIPT ~ 701BR1DQESlREET NEW CUMBERlAND PA 1707 ; ,.. ,.' ',. 17171774-6262 11/02/00 i STEPHEN SYMONS . 16 N WHARF ROAD BOWMANSDALE PA 1700B "_ . Rx C25943 R Qty #30 AMBIEN 10MG TAB SEARLE CONSUME NDC# 00025-5421-31 OW 6/16/00 DR. MUST APPROVE REFILLS Dr. T CULLEN 207 HOUSE AVE CAMP HILL PA 17011 (717)761-8331 CASH 65.02 - Senior Discount $ 61.77 IIII~mIlIIWlOOI *25943* THIS IS YOUR RECEIPT. PLEASE RETAIN FOR YOUR TAX OR INSURANCE. ....';;;,' '~>'~' ,,,. ~ , " , t COMMONWEALTH'S EXHIBIT .3 .Ho.OI UC-. ~ 01