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Home My WebLink About01-2543 FX PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry Page 1 ,a: ..... - .... 2001-02543 KARNS CLEON P (vs) PENNSYLVANIA Reference No..: Case Type.....: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: GUIDO EDWARD E Disposed Desc. : ------------ Case Comments ------------- COMMONWEALTH OF Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 5/01/2001 8:31 0/00/0000 0/00/0000 2931 CD 2001 ******************************************************************************** General Index Attorney Info KARNS CLEONE P 300 THIRD STREET ENOLAVILLE PA 17025 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT MANCKE JOHN B APPELLEE KABUSK GEORGE ******************************************************************************** * Date Entries * ******************************************************************************** t5/01/2001~A-PPEAL-FROM SUSPENSION-OF Dki~~~SE~I~~NSE - - - - - - - - - - - - - ------------------------------------------------------------------- 5/08/2001 ORDER - DATED 5/7/01 - IN RE LICENSE SUSPENSION APPEAL - HEARING 6/18/01 8:30 AM CR 5 - BY EDWARD E GUIDO J - COPIES MAILED 5/8/01 1_------------------------------------------------------------------ 5/31/2001 ORDER - DATED 5/31/01 - THE LICENSE SUSPENSION APPEAL HEARING SCHEDULED FOR 6!18!01 AT 8:30 AM IS CONTINUED TO 7/25/01 AT 3:00 PM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE FA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 5/31/01 /------------------------------------------------------------------- 7/30/2001V 9RDER OF COURT - DATED 7/25/01 - IN RE LICENSE SUSPENSION APPEAL - BASED UPON THE FINDINGS OF FACT MADE AFTER REVIEW OF THE EVIDENCE AND HEARING THE TESTIMONY THE PARTIES ARE GIVEN 10 DAYS WITHIN WHICH TO FILE BRIEFS INSUPPORT OF THEIR RESPECIVE POSITIONS- BY THE COURT EDWARD E GUIODO J COPIES MAILED 7/30/01 /------------------------------------------------------------------- 12/13/200~ ORDER OF COURT - DATED 12/13/01 - IN RE LICENSE SUSPENSION APPEAL - FOR THE REASONS SET FORTH IN THE ACCOMPANYING OPINION PLFFS APPEAL FROMTE SUSPENSION OF HER OPERATING PRIVILEGES IS SUSTAINED AND THE ACTION OF THE DEPARTMENT IS REVERSED - BY THE COURT EDWARD E GUIDO J COPIES MAILED 12/13/01 ------------------------------------------------------------------- 12/19/2001 NOTICE OF APPEAL TO COMMONWEALTH COURT - OM THE ORDER FILED ON A2/13/01 BY TIMOTHY P WILE ESQ ------------------------------------------------------------------- 12/21/2001 ORDER OF COURT - DATED 12/20/01 - COUNSEL IS DIRECTED TO FILE A CONSICE STATEMENT OF MATTERS COMPLAINTED OF ON WITH RULE OF APPELLATE PROCEDURE 1925 B - BY THE COURT EDWARD E GUIDO J COPIES MAILED 12/21/01 ------------------------------------------------------------------- 12/31/2001 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2931 CD 2001 12/31/200~STATEMENT-OF-MATTERS-COMPLAINED-OF-ON-APPEAL-BY-COMMONWEALTH-OF-PA- - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adl End Bal * *****************************************~************************************** 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 ******************************************************************************** ;j;;~ ^-, ~.( , ;"~I:-'r=.- ^, ,., PYS510 .,. -+ 2001-02543 Cumberland County Prothonotary's Office Civil Case Inquiry KARNS CLEON P (vs) PENNSYLVANIA COMMONWEALTH OF Page 2 Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . , . Disposed Date. Higher Crt 1.: Higher Crt 2.: * End of Case Information * ******************************************************************************** Reference No. . : Case Type.. ...: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: GUlDO EDWARD E Disposed Desc. : ------------ Case Comments ------------- 5/01/2001 8:31 0/00/0000 0/00/0000 2931 CD 2001 ?"'.1!!<lt.l\_ '_, ~- 1 p"] '" ~. ,- " ~ " LAW OFFICES MANCKE, WAGNER, HERSHEY & TULLY 22.33 NORTH FRONT STREET JOHN B. MANCKE P. RICHARD WAGNER DAVIO E. HERSHEY WILLIAM T. TULLY HARRISBURG, PA 17110 E'HONE (717) 234-7051 _ FAX (717) 234-7080 September 17,2001 Clerk of Courts Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Commonwealth v. Cleone P. Karns 01-1391 Criminal Cleone P. Karns v. Comm. of PA, Dept. of Transportation (f'Jo.01-2~$43___t:f'{i1 T emL Please be advised that Cleone P. Karns has moved and her new address is 300 Third Street, Enola, PA 17025. Very truly yours, rJ7-'- John B. Mancke JBM/hrc cc: Prothonotary's Office.f PYS510 Cumberland County Prot~onotary's Office Civil Case Inqulry Page 2 - - - - - - LAST ENTRY R & A MILLER INC ET AL Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 8/19/1999 1:28 0/00/0000 0/00/0000 1999-05049 LIDDICK JOHN ET AL (vs) Reference No. . : Case Type.....: COMPLAINT Judgment.. . . . . . .00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- ******************************************************************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adi End Bal * ********************************~*********************************************** COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 ------------ .00 45.50 45.50 ******************************************************************************** * End of Case Information * ******************************************************************************** ,"P"_ Fl. 1-'-. . ., "~ "- Irene M. Bizzoso Deputy Prothonotary Shirley Bailey Chief Clerk Supreme Court of Pennsylvania Middle District February 6, 2003 P.O. Box 624 Hamsbure-. PA 17108 717.787.6181 www.aopc.org Mr. Curtis R. Long Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Cleone P. Karns, Petitioner v. Commonwealth of Pennsylvania, Department of Tranportation, Bureau of Driver Licensing, Respondent Commonwealth Docket Number - 2931 CD 2001 Ima "';'-'- r_. _~ ',,<' _ F,".y~~ Trial Court/Agency Ok!. Number: 2001-2543 Civil Term No. 718 MAL 2002 Appeal Docket No.: Date Petition for Allowance of Appeal Filed: September 11, 2002 Disposition: Order Denying Petition for Allowance of Appeal Date: February 6, 2003 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: "." - ,,~",~! -1-' '0"'"_,-.-,,. 1-' ''" . ~ . ... Irene M. Bizzoso Deputy Prothonotary Shirley Bailey Chief Clerk Supreme Court of Pennsylvania Middle District February 6, 2003 P.O. Box 624 Harrisbur2. PA 17108 717.787.6181 Mr. Charles R. Hostutler Room 624, Sixth Floor South Office Building Harrisburg, PA 17120 RE: Cleone P. Karns, Petitioner v. Commonwealth of Pennsylvania, Department of Tranportation, Bureau of Driver Licensing, Respondent Commonwealth Docket Number - 2931 CD 2001 Trial Court/Agency Dkt. Number: 2001-2543 Civil Term No. 718 MAL 2002 Appeal Docket No.: Date Petition for Allowance of Appeal Filed: September 11, 2002 Disposition: Order Denying Petition for Allowance of Appeal Date: February 6, 2003 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: Ima st ~1! t~~t C\\ :\\'V '\'" \;\0 -\^S" .pC '0" '<1\\\\11\ '1"'\\\IOVlv< v \ tl(lO~ H1; 'r\~~~\:I~31:\ "' 03\\:1 ~ ,- ~ "Y'-" ~~ ",'_.1"'""_;' . ~ , 1'- ~'I'!"'] j, ' " ~, www.aopc.org .. < 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 ofrecord, 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 PA RAP. 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: CLEONE P. KARNS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION NO. 01-2543 CIVIL TERM 2931 tD 2001 The documents comprising the record have been numbered from No.1 to 91 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, inclfiding 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 1-28-02. Curtis R. Long, Prothonotary Jane H. Sparling, Dpty. An additional cOpy of this certificate is enclosed. Please sien and date copy. thereby acknowledeine receipt of this record. Date Signature & Title '''~_T''''''D'>r:;~r,~"__,~~ ~ c, ~~ II ? . 'M . ';~,-",.,., .. Ii \1 Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND 2931 CD 2001 01-2543 CIVIL COMPLETE DOCKET ENTRY in the Commonwealth of Pennsylvania Term. 19 is contained the following: to No. COPY OF CLEONE P. KARNS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SEE ATTACHED CERTIFIED DOCKET ENTRIES. . 'Irl '" , , I~ """"""'"' -,..... ~ ",~ , ~ II !' " I Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis 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 ofthe .case thereilLStaterl... wherein Cl.eone t'. Karns Plaintiff, and Comm. of PA., Dept. of Trnasportation Defendant _. as the same remains of record before the said Court at No. 01-2543 of Civil Term. A.D. 19_. have hereunto set my hand and affixed the seal of said Court day of January A. D" ~002 . In TESTIMONY WHEREOF, I this 28th Prothonotary I, Georqe E. Hoffer President Judge of the Ninth Judicial District, composed of the County of Cumberland. do certify that Curtis R. Lonq , 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. atthe 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 roper officer. Commonwealth of Pennsylvania County of Cumberland } ss: sident Judge l. Curtis 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 ofthe 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 28th day of January A.D. 1~002 Prothonotary ".;'~"'-="""'____f",> _ ~. 1, r" , ..."~,jl i PAGE 00. 2 - 7 1 8 - 9 10 11 - 18 19 - 2.!/ ... 25 - 28 29 30 - 31 32 - 34 35 - 89 90 91 """'~~, PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry KARNS CLEON P (vs) PENNSYLVANIA COMMONWEALTH OF Page , 2001-02543 Reference No. . : Case Type. ....: APPEAL - LICENSE SUSP Judgment...... .00 Judge Assigned: GUIDO EDWARD E Disposed Desc. : ------------ Case Comments ------~~----- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 5/01/200 8:3 0/00/000 O/o%oe 2931 CD 20 ****************************************************************************** General Index Attorney Info KARNS CLEONE P 300 THIRD STREET ENOLAVILLE PA 17025 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT MANCKE JOHN B APPELLEE KABUSK GEORGE ****************************************************************************** * Date Entries ****************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------ ORDER - DATED 5/7/01 - IN RE LICENSE SUSPENSION APPEAL - HEARING 6/18/01 8:30 AM CR 5 - BY EDWARD E GUIDO J - COPIES MAILED 5/8/01 ------------------------------------------------------------------ 5/31/2001 ORDER - DATED 51.311.01 - THE LICENSE SUSPENSION APPEAL HEARING SCHEDULED FOR 6/18/01 AT 8:30 AM IS CONTINUED TO 7/25/01 AT 3:00 P IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 5/31/01 ------------------------------------------------------------------ 7/30/2001 ORDER OF COURT - DATED 7/25/01 - IN RE LICENSE SUSPENSION APPEAL - BASED UPON THE FINDINGS OF FACT MADE AFTER REVIEW OF THE EVIDENCE AND HEARING THE TESTIMONY THE PARTIES ARE GIVEN 10 DAYS WITHIN WHICH TO FILE BRIEFS IN SUPPORT OF THEIR RESPECIVE POSITIONS-BY THE COURT EDWARD E GUIODO J COPIES MAILED 7/30/01 ------------------------------------------------------------------ 7/30/2001 TRANSCRIPT OF PROCEEDINGS - IN RE: ARGUMENT - PROCEEDINGS HELD BEFORE THE HONORABLE EDWARD E GUIDO J - CUMBERLAND CO COURTHOUSE - CARLISLE PA ON WEDNESDAY JULY 25, 2001 IN COURTROOM NO. 5 ------------------------------------------------------------------ 12/13/2001 ORDER OF COURT - DATED 12/13/01 - IN RELICENSE SUSPENSION APPEAL BEFORE GUIDO, J - OPINION ANt ORDER OF COURT - FOR THE REASONS SET FORTH IN THE ACCOMPANYING OPINION PLFFS APPEAL FROM THE SUSPENSION OF HER OPERATING PRIVILEGES IS SUSTAINED AND THE ACTION OF THE DEPARTMENT IS REVERSED - BY THE COURT EDWARD E GUIDO J COPIES MAILED 12/13/01 ------------------------------------------------------------------ 12/19/2001 NOTICE OF APPEAL TO COMMONWEALTH COURT - OM THE ORDER FILED ON 12/13/01 BY TIMOTHY P WILE ESQ ------------------------------------------------------------------ 12/21/2001 ORDER OF COURT - DATED 12/20/01 - COUNSEL IS DIRECTED TO FILE A CONSICE STATEMENT OF MATTERS COMPLAINTED OF ON WITH RULE OF APPELLATE PROCEDURE 1925 B - BY THE COURT EDWARD E GUIDO J COPIES MAILED 12/21/01 ------------------------------------------------------------------ COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2931 CD 2001 ------------------------------------------------------------------ STATEMENT OF MATTERS COMPLAINED OF ON APPEAL BY COMMONWEALTH OF PA ------------------------------------------------------------------ TRANSCRIPT FILED - BY THE COURT EDWARD E GUIDO J ------------------------------------------------------------------ OPINION AND ORDER PURSUANT TO PA RAP 1925 - DATED 1/22/02 - THE REASONS FOR OUR DECISION IN THIS MATTER ARE FULLY SET FORTH IN THE OPINION ACCOMPANYING OUR ORDER OF DECEMBER 13, 2001 - BY THE COURT ~D~~D_E_G~I~O_J_C~P~E~ ~~LfRs~/~~f~~ _ _ _ _ _ _ _ _ _ _ _ _ _ MEMORANDUM & MISCELLANEOUS PAPERS & EXHIBITS ****************************************************************************** * Escrow Information 5/01/2001 5/08/2001 12/31/2001 12/31/2001 1/15/2002 1/23/2002 -.' ~" If I '" l' ", r ... . Cumberland County Prothonotary's Office Civil Case Inquiry 2001-02543 KARNS CLEON P (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Filed........: 5/01/200 Case Type.....: APPEAL - LICENSE SUSP Time.........: 8:3 Judgment...... .00 Execution Date 0/00/000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: D~sposed Date. 0/00/000 ____________ Case Comments ------------- Hlgher Crt 1.: 2931 cb 20 Higher Crt 2.: * Fees & Debits BeD Bal pvmts/Adl End Bal ********************************~***************~***************************** PYS510 Page APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 35.00 .50 .50 5.00 5.00 5.00 5.00 30.00 30.00 ------------------------ 75.50 75.50 .00 .00 .00 .00 .00 ------------ .00 ****************************************************************************** * End of Case Information ****************************************************************************** TRUE COPY FROM RecoRD .tn Testimony Whereof. I here unto set my hand and t of said. Court at CarlISl8J-. Pa. J m' Y J 00 I :-;. ~ i -j '>''''''I'''f''''''''''''''''"",,,'''''''''''''''''''~'''~ , 1'1,- 1) , , , , , , 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cleone P. Karns v. No. 293l C.D. 200l SUBMITTED: April 26, 2002 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: (') c s: v 0-; rnrT1 -;7 :J"'" z(' (f) ,,~-.~, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge 1:2 ~~ HONORABLE ROBERT SIMPSON, Judge ~8 HONORABLE JOSEPH F. McCLOSKEY, Senior Judge >- 2 . =< CJ t'o".) "'" c: G) C) ~i -;'! ~!,'.-I G_) :->~ ~D -0 "---~ t:~"". (;~,5 :.1, ~f'l ::J -< r;;- ...J OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: August 12, 2002 The Department of Transportation (Department) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) that reversed the one-year suspension of Cleone P. Karns' (Karns) driving privileges, imposed pursuant to 75 Pa. C.S. ~ l547(b)(l)J for her refusalto complete a blood alcohol breath test. The Department contends that the evidence is insufficient to 175 Pa.C.S. 9 1547(b)(1) provides: If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or control1ed substance) is requested to submit to chemical testing and refuses to do so, the testing shal1 not be conducted but upon notice by the police officer, the department shal1 suspend the operating privilege of the person for a period of 12 months. .)"; Jl ~ ,_ . 1, -- , ~ . > . '" ... , '>""''''''''-'' "' .,,,,",,,,.,.,,...,,,.,,,,,,,..,,,,",,,''''''',,''"1iII'"'''' r'~.ili1JJlIl.!lI"I\t" , , ~ ' support the trial court's fmding that Karns was physically unable to complete the test. We agree and reverse. On March 21, 2001, Officer O'Donnell of the West Shore Regional Police Department arrested Karns and charged her with driving under the influence of alcohol. After Karns initially refused a breath test, O'Donnell appropriately warned Karns of the consequences of refusing chemical testing under Section l547(b)(I) of the Vehicle Code. Thereafter, Karns agreed to submit to a breath test. The test was conducted at the booking center by Agent Carol Franks and was videotaped. Based on the videotape, the trial court found that Karns made a good faith effort to comply with the instructions of Agent Franks. Nevertheless, Karns did not provide a sufficient breath sample. Agent Franks testified that the machine was working properly but that Karns was not making a proper seal around the mouthpiece and air was escaping . from the sides of her mouth. During the test, Agent Franks warned Karns that if she did not provide a sufficient sample before the machine timed out, it would be deemed a refusal. After Karns failed to complete the test, Officer O'Donnell was summoned back to the booking center to determine if Karns should submit to a blood test. When O'Donnell arrived, Karns was vomiting and complaining of chest pain. She was transported to a hospital via ambulance, and Officer O'Donnell treated her failure to complete the breath test as a refusal. Thereafter, the Department notified Kams that her operating privileges were suspended and Karns appealed to the Court of Common Pleas. Following a de novo hearing, the trial court found that, while the Department established prima facie that Karns failed to supply a sufficient breath sample, Karns had proven that she was physically incapable of performing the test and was 2 "!>'I~~;wjil'~N';c"',..1';l;~:ff,!~'''_~~I'C't'''."""",,,",1>'tW'!'!t.~''''''''''''_F''!''''''~'''}'''<;;;"""T~,,<<r~1_'!l'P1i'~"!W"'"'__"''''_'''-''''''''''''' ""'~.. "'-" .,,-- .. --, F ' ",,,"".',l~- 7<c '''T'' ","'-"""-';-""---" "-',c"""n"H,p~F'"a,,-";'~''"V~''-''!r''''- , . I ,I incapable of making a knowing and conscious refusal. On this basis, the trial court sustained Karns' appeal. The Department filed the present appeal, maintaining that because Karns did not submit expert medical testimony establishing a physical cause, other than intoxication, for her inability to complete the test or make a knowing refusal, she failed to sustain her burden of proof. 2 In order to sustain the license suspension under Section l547, the Department must prove that Karns (1) was arrested for operating a motor vehicle while under the influence of alcohol; (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 suspension of her driving privilege. Lemon v. Dep't of Transportation, Bureau of Driver Licensing, 763 A.2d 534, 538 (Pa. Cmwlth. 2000). If the Department sustains its burden, the burden then shifts to the licensee to establish physical inability to take the test or knowingly refuse. Id. at 538. Despite a licensee's 'good faith attempt to comply with the test, failure to supply a sufficient breath sample will constitute' a per se refusal. Sweeney v. Commonwealth Dep't of Trcmsp., Bureau of Driver Licensing, _ A.2d _CPa. Cmwlth.) (No. 1980 CD. 1999, filed July 3, 2002); Pappas v. Commonwealth Dep't of Transp;, Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa. Cmwlth. 1996). However, if a licensee proves that due to a medical condition he or she was unable to properly complete the test, then the refusal will not constitute grounds for suspension under 75 Pa; 0.8. ~ l547(b)(l). Lemon 763 A.2d at 538. A licensee who suffers from a' medjcal condition that is not obvious and that affects her ability to perform the breath test 2 The Department also asserts that Karns' initial refusal to submit toa breath test was. not cured by her subsequent assent but unsuccessful effort to complete a br~ath test. This issue was not preserved and, in any event, need not be addressed in view of our decision reinstating Karns' license suspension. ' 3 -!,:,:" ~. ,,"~ -~, ~ ~ 1 "If 1',- _. :" """"I._'~r'''1'''''''~r'I'llII!lI'~~I~fI!!1I!\" "~ ~o . I> "" ,,-, '~-^'--.~ ,--'"~-- ,.,,_'~'w m".~>",,,~,;,"",,,,,""_, '''."~-._~, - '~\iRnr" '::,,-0;;",,- . , i ,. , must establish by competent medical evidence the presence of the medical condition and that it rendered her physically unable to provide a sufficient sample. Id. Cf Carlin v. Dep't of Trans. , Bureau of Driver Licensing 739 A.2d 656,659-60 (Pa. Cmwlth. 1999) (holding that medical evidence is not required where licensee's physical incapacity, the need to urinate, is obvious). In the present case, Karns' inability to complete the breath test was not obvious. At no time during the twenty-minute observation period3 prior to the test or during the test did Karns ever state she was feeling ill. Officer O'Connell and Agent Frank both testified they were in an excellent position to observe Karns' appearllllce and any obvious signs of illness, but saw none. (R. at 47a, 6la). Karns . did not inform anyone of her nausea or chest pain until after she had failed to satisfactorily complete the breath test. The trial court merely states that Karns was obviously "emotionally distraught, and, as it turns out, physically ill." Our viewing of the videotape discloses no overt signs of emotional distress. Karns herself testified that "I started getting sick in my stomach, and I thought I was going to throw up," after the officer told her the machine had timed out. (R. at 76a, 77a). There are no overt signs on the videotape that Karns was so physically ill or distraught as to render her unable to complete the test or make a knowing or 3 The regulation at 67 Pa. Code g 77 .24 states that a person must be kept under observation by a police officer for at least twenty consecutive minutes immediately prior to administration of the first alcohol breath test. During that time the person may not drink fluids, eat, vomit or smoke. See 67 Pa. Code g 77.24(a). 75 Pa. C.S. g 1547(b)(1) provides: If <U1y person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. 4 '_~ ~.,~~~~,,,JIiI~IIl'!"",",,~lW~~~~'M~I,*""~'I'~"""':'IN":['iM<!'.~'l"~,~~"''''''~_n-~f"(.mF-''''-'-'''-~''' p'c'. "." '~i"--".;, ,'ot.,.. '", ,",~., '. "o'h''''. """,' ",;;-,~' C')"'-<;";"-'" ~"'i'(,~"'n~";-'''1'",<!,v,''"~m,'o''''''""r' . . I" conscious refusal. Moreover, nothing in the record suggests that any emotional or physical distress suffered by licensee was anything other than alcohol induced. Incapacity resulting from intoxication will not excuse or justify a failure to complete the test. Dep't. of Trans., Bureau of Traffic Safety v. Potter, 545 A.2d 979,980 CPa. Cmwlth. 1988). Because no obvious physical condition caused Karns' failure to complete the test or lmowingly refuse to do so, Karns could not sustain her burden of proof without expert medical testimony. Karns failed to present such evidence and, therefore, the trial court erred in concluding that her failure to complete the breath test was not a refusal. Accordingly, we reverse. ~ . Le>d.~~ BONNIE BRIGANCE LEADBETTER, Judge 5 ';1" . ."~ ~_ , 'I~ F"' h (' " - ,,~.. ". ',," """"""' . '"'" "W" "rlii~'jWl 'll'llnilllJ I8Il1lmtrrYrlli!']ur IW'" ~ , , , , IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cleone P. Karns v. No. 293l C.D. 2001 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant #- 01- ~5-Lr3 ~7f ORDER AND NOW, this 12th day of August, 2002, the order ofthe Court of Common Pleas of Cumberland County in the above captioned matter is hereby REVERSED. ~ .lJ~d~~ BONNIE BRIGANCE LEADBETTER, Judge c~ ... ""ed frnmtMe rn""", d n:V'\,.{\J~.\:1 AUG 1 2 200l amI'Ornter iElitt >- cr: ;S e- Ll...! ;-"_~ C);::,: lL;-,,- ,. (j -I. ce: CD -:l >- f-- z :~::~ :;~ <?- .C -u') - :)2: ,..., :':Cz L", ~.LJLLJ :2 CLl CL -- ':S; r~J 5 c" U CL. ....') LL. o ~~IlIlIIlIl'I!l:!~"''f:1fl''\'--';Y;;_~RJl!IIl~f!I''i1'I''!I'~I1W~!'"f!l'lii1~~~l'I'iI1f!l'm~!'l~''!:'"-T"- "__'_7_;"6"'C'~"'"'' 'C'" --,- ---,_ --.---' _co"~ ,~"",.,,;,,,: "" ';""'''''''''i';'~:J'''' "':~~""'Tn"""';"""Fi"'f!';T'; 1'~"7"'~"-;'-f'7 01- 2.5 ~3 l ' IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CLEONE P. KARNS, No. 718 MAL 2002 Petitioner Petition for Allowance of Appeal from the Order of the Commonwealth Court v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER PER CURIAM: AND NOW, this 6th day of February, 2003, the Petition for Allowance of Appeal is hereby DENIED. TRUE & CORRECT COpy A~L SHIRL ' . PHI APPELLATE CLERK "',<,", , _O<""~""'", ,!i'''^''i'"_~ " ['-F , . 'I '<-, ~ ',I H <," ;;j t ~ " ~~" ~_!lgW - .~^ ,l1.tfiill "-~~, =- _~.",0 >~,- -' . --~"< -->,'hN ','J', ~""ip"'''-'~~-''''I{u~Wilr1''':',~ :~-']'JUltrj:j}r?~'J;b:.",cr::-tg"i o c: ? S2 ff; 655:;- ~!~ Pc.: ~ ""- :< , i co (.,) ,':) -q ::--:1 ;'-:~i :Q- .:.,1"1 ----0 , -!() :J,~~ -~-; ~ -:3: -"= "V , ,---. ;::::;.. -:.c. Co..n CO .. ,~ o_~. ..<<("",_~ ,"",;ffiif'''b'l'':Ij'iJ<"~''''''''',;'-';''~'''''W9"~;Ii'? ';;'~"F""Ml~~o:,'-~JI;;fflll"!Jtl!!fWli!l!'f~~~~~~~'t~Jfffil~~~,; , . IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CLEONE P. KARNS, No. 718 MAL 2002 Petitioner Petition for Allowance of Appeal from the Order of the Commonwealth Court v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent ORDER PER CURIAM: AND NOW, this 6th day of February, 2003, the Petition for Allowance of Appeal is hereby DENIED. TRUE & CORRECT COpy S t Cd?,! t~~t C\\:\\'\/ n ,,\--, l. J\j \ ('~', :," U J r) '<j IiI';} 1\1/;"-1'1;,\\0\.11.\0 J 1.t\(\0'J \\l:'b-,,:\i',13'J3t\ G:f\\:\ "S ATTE~:~ ~ SHIRL if PHI APPELLATE CLERK :1J.'>y-=>-< ~ ,_, ",'" ~__'?' r _ .". .Ff "-1 , 1""'1-',-" 'i' '-'1-"" - ,-- ~-, . - =" . .. ,,' ,.' -,''';''",' ,,~ '=; '~~'."-, ",.,,' "-..~".", < '~n",-,,,,,.t '. '"'~'"'mr"''' ~-liiMf'<"""';;g''j' .~-rt'1!~ '", (..": r ~_? -on o C <'C. -Uli., ,-nr',' .~;; 0'~2' ~~L._ Z~:::' $~; :::~ , --. 1_."".' c-::, -"', f;,"; _ ~",,"!I'll .^"r, ,~ ~ - ".t,_, r~-t...,I!Iil\IIlf1~ ,.'..... ~~w~~~~,_l'j',l-1""'~.,,"'""o;w.jSjr,:v.'!-~ti~'~!i!!l!ifflPjI~'lpr~~~~1I;t' IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cleone P. Karns v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant AND NOW, this 9th No. 293l C.D. 200 1 ORDER day of September, 2002,upon consideration of appellee's application for supersedeas, the application is hereby GRANTED pending disposition of Karns' Petition for Allowance of Appeal to the Supreme Court of Pennsylvania. , q""",=.,~-~",,.~ , .',-- ~ .ke.~~ BONNlE BRIGANCE LEADBETTER, Judge Certified from the Record SEP - 9 2002 and Oraer Exit )w "'" ,-,~"""~"",,,""'" ~~~""'~ "" ~. ! t:<i_" .,fl1Ill!l.!'!'!!~~~H'_"~n'~ -, ,_.-~ .~ '~T:,-;,';'JJ~ "~{ ~''fuj 1"":~~~:~';(B'< .c;#f~'ru"'-" .~" ';:'::,~iYi;\fI"~'1~j~1iri'J'1li~'<~r'fY;';;i;~-[iM{:}~;r~~ii o c <:: LIlT nT\r-- z::-' ~I~.~- ~li: ;PC :~:. / ~o -~ """ ~',f'" " --.: y"" ~~3 c; -'G :~+;. r:- =.1 ,,,",_,,.4-~.,#l...!Ji~,~,,,",,,.\WH9".~:~~I,,~,,),"'Hnh"ffl"jH"""'~~r1"'l11i'~~Ij!i'l&~'f1fi';;!'!,'~;lFN~1!!M'~~~""'ff%'_o,.,,,,!,,ap, \ ; IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cleone P. Karns v. No. 293l C.D. 200l SUBMITTED: April 26, 2002 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge . OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: August 12, 2002 The Department of Transportation (Department) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) that reversed the one-year suspension of Cleone P. Karns' (Karns) driving privileges, imposed pursuant to 75 Pa. C.S. ~ l547(b)(I)' for her refusal to complete a blood alcohol breath test. The Department contends that the evidence is insufficient to , 75 Pa.C.S. S 1547(b)(1) provides: If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. ,~~ '" " ". . .....~. . ,., ,",...,.",",""",',,'''..=, ".,~, ""'#'T!'i01f'J""T'~mjlfit1il!iint"f'f .i support the trial court's finding that Karns was physically unable to complete the test. We agree and reverse. On March 2l, 200l, Officer O'Donnell of the West Shore Regional Police Department arrested Karns and charged her with driving under the influence of alcohol. After Karns initially refused a breath test, O'Donnell appropriately warned Karns of the consequences of refusing chemical testing under Section l547(b)(l) of the Vehicle Code. Thereafter, Karns agreed to submit to a breath test. The test was conducted at the booking center by Agent Carol Franks and was videotaped. Based on the videotape, the trial court found that Karns made a good faith effort to comply with the instructions of Agent Franks. Nevertheless, Karns did not provide asufficient breath sample. Agent Franks testified that the machine was working properly but that Karns was not making a proper seal around the mouthpiece and air was escaping from the sides of her mouth. During the test, Agent Franks warned Karns that if she did not provide a sufficient sample before the machine timed out, it would be deemed a refusal. After Karns failed to complete the test, Officer O'Donnell was summoned back to the booking center to determine if Karns should submit to a blood test. When O'Donnell arrived, Karns was vomiting and complaining of chest pain. She was transported to a hospital via ambulance, and Officer O'Donnell treated her failure to complete the breath test as a refusal. Thereafter, the Department notified Karns that her operating privileges were suspended and Karns appealed to the Court of Common Pleas. Following a de novo hearing, the trial court found that, while the Department established prima facie that Karns failed to supply a sufficient breath sample, Karns had proven that she was physically incapable of performing the test and was 2 1'9~~~~I!:t'-,Wfflmt'-'i~~IlI~~~'V'!EJI",,",";~"~~"'-1~_ffi"-_"'~'~''''1pjl~~'Nw.f"'1"'?e"ri'<"'".",,,;.,; '_'""";,,<;,v,-,.,,,n, "n""'1'-,-''-'"'''''1"""'Vf,'''''!''',--;''d',Y'.''i'f,R'"'''.'J'''"""'"'~"I"i'f"""I'B~"'''''i'i~l''!!!fI"'"'--'''F''' incapable of making a knowing and conscious refusal. On this basis, the trial court sustained Karns' appeal. The Department filed the present appeal, maintaining that because Karns did not submit expert medical testimony establishing a physical cause, other than intoxication, for her inability to complete the test or make a knowing refusal, she failed to sustain her burden of proof. 2 In order to sustain the license suspension under Section l547, the Department must prove that Karns (1) was arrested for operating a motor vehicle while under the influence of alcohol; (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 suspension of her driving privilege. Lemon v. Dep 't of Transportation, Bureau of Driver Licensing, 763 A.2d 534, 538 (Pa. Cmwlth. 2000). If the Department sustains its burden, the burden then shifts tb the licensee to establish physical inability to take the test or knowingly refuse. Id. at 538. Despite a licensee's good faith attempt to comply with the test, failure to supply a sufficient breath sample will constitute a per se refusal. Sweenry v. Commonwealth Dep't of Transp., Bureau of Driver Licensing, _ A.2d _(Pa. Cmwlth.) (No. 1980 C.D. 1999, filed July 3, 2002); Pappas v. Commonwealth Dep't of Transp., Bureau of Driver Licensing, 669 A.2d 504, 508 (Pa. Cmwlth. 1996). However, if a licensee proves that due to a medical condition he or she was unable to properly complete the test, then the refusal will not constitute grounds for suspension under 75 Pa. C.S. S l547(b)(l). Lemon 763 A.2d at 538. A licensee who suffers from a medical condition that is not obvious and that affects her ability to perform the breath test 2 The Department also asserts that Karns' initial refusal to submit to a breath test was not cured by her subsequent assent but unsuccessful effort to complete a breath test. This issue was not preserved and, in any event, need not be addressed in view of our decision reinstating Karns' license suspension. 3 ,,~~,~. I'~II ,. .~ '~~,".'~" <~o , ,,,~", . """~~r ',"" ,. """"". ",,"" """C' "T]rrl1i'11lf'i'r1iiliilff""Tr' must establish by competent medical evidence the presence of the medical condition and that it rendered her physically unable to provide a sufficient sample. Id. Cf Carlin v. Dep 't of Trans. , Bureau of Driver Licensing 739 A.2d 656,659-60 (Pa. Cmwlth. 1999) (holding that medical evidence is not required where licensee's physical incapacity, the need to urinate, is obvious). In the present case, Karns' inability to complete the breath test was not obvious. At no time during the twenty-minute observation period3 prior to the test or during the test did Karns ever state she was feeling ill. Officer O'Connell and Agent Frank both testified they were in an excellent position to observe Karns' appearance and any obvious signs of illness, but saw none. (R. at 47a, 61a). Karns did not inform anyone of her nausea or chest pain until after she had failed to satisfactorily complete the breath test. The trial court merely states that Karns was obviously "emotionally distraught, and, as it turns out, physically ill." Our viewing' of the videotape discloses no overt signs of emotional distress. Karns herself testified that "I started getting sick in my stomach, and I thought I was going to throw up," after the officer told her the machine had timed out. (R. at 76a, 77a). There are no overt signs on the videotape. that Karns was so physically ill or distraught as to render her unable to complete the test or make a knowing or 3 The regulation at 67 Pa. Code ~ 77.24 states that a person must be kept under observation by a police officer for at least twenty consecutive minutes immediately prior to administration of the first alcohol breath test. During that time the person may not drink fluids, eat, vomit or smoke. See 67 Pa. Code ~ 77.24(a). 75 Pa. C.S. ~ 1547(b)(I) provides: If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. 4 ':;p1iI.- "~, .~ffi!'ftl!!IIMIJ~%'JW'\-~ffl'!'1rnl!l!!~~$lm;:::-f@ff<'l~-lf'~~~"'>'l""i'~'!_!~~","",~""l"<'!I""''''''''''''''''9S~~''l'M',W~"'~'?'IF""r'Tc;,,",,~"" -, 'i' ,". "0" '~u;" "--".''''1:- <:"""IF':'\:"'l'~~',~-""""'<I'-,!,]h~'~" ~"'!!'''''':'I''~'!',''ll'''''1R!'F'Wl~Ijl~~~ . \ conscious refusal. Moreover, nothing in the record suggests that any emotional or physical distress suffered by licensee was anything other than alcohol induced. Incapacity resulting from intoxication will not excuse or justify a failure to complete the test. Dep't. of Trans., Bureau of Traffic Safety v. Potter, 545 A.2d 979,980 CPa. Cmwlth. 1988). Because no obvious physical condition caused Karns' failure to complete the test or knowingly refuse to do so, Karns could not sustain her burden of proof without expert medical testimony. Karns failed to present such evidence and, therefore, the trial court erred in concluding that her failure to complete the breath test was not a refusal. Accordingly, we reverse. ~ . L.e>A.b.e.~ BONNIE BRIGANCE LEADBETTER, Judge 5 :::~,- 11, ,- " , .~ -. ~ t& . "'" ..... ... .~...,'. .."'. ,. ...............>.....'1''' ->>>1 11:n~r.....Tf IN THE COMMONWEALTH COURT OF PENNSYLVANIA Cleone P. Karns v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant AND NOW, this No. 2931 C.D. 200l ORDER 12th day of August, 2002, the order of the Court of Commc)ll Pleas of Cumberland County in the above captioned' matter is hereby REVERSED. ~ .~/d~~ BONNIE BRIGANCE LEADBETTER, Judge o ~~~; >..- ~>~. z:~L ~~:2 r;'l> :.::-- ~~~ .~- ~ ~ -., -<:. f.,) C_' ":-', ---:-1 -..1 SJ -< "ifill, ~ .~,~"~ ,.~f~~-W!'l""""'.t!1-~-!!lIII'fIl!~~~,~JWl'''''!_'''r.~'l'~~'''''i!'I,W!!'W''1~~!R~l~'5'~''''-"~c;!Oi'C',-',.,-...:.-fl".' "11':'."'" "'T' 'ij!W.'I-""'''1",,'P'''''i'J':''''''''f.'''''i''''O'''''f''ll[''~'I--''''f!'':jJi''~.W';''"')"'r'" ... If COPY COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-2543 CIVIL TERM CLEONE P. KARNS, Appellant LICENSE SUSPENSION APPEAL TRANSCRIPT OF PROCEEDINGS IN RE: ARGUMENT COpy Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Wednesday, July 25, 2001, in Courtroom No. 5 APPEARANCES: TERRANCE M. EDWARDS, Esquire Attorney for Appellee JOHN B. MANCKE, Esquire Attorney for Appellant COpy 1 '.:, .. . 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 ,-',J..*:t (At the conclusion of the testimony, the following argument occurred:) THE COURT: Do you have anything else, Mr. Mancke? MR. MANCKE: Nothing other than judicial notice that Holy Spirit Hospital is authorized to take serum and blood testing, Pennsylvania Bulletin, Volume 31, No.2, January 13th, 2001, Page 191. THE COURT: I will so take judicial notice of that. Let me get this straight, Mr. Mancke. You're conceding for purposes of this hearing that the Commonwealth can use the .10 result from Holy Spirit Hospital in its case, and you're saying that, because of that, this should not be considered a refusal? MR. MANCKE:. Your Honor, the officer received the test result. THE COURT: Okay. But there's an argument that he received it illegally; he had no right to it. MR. MANCKE: There's an absolute argument that he received it illegally. THE COURT: So that, therefore, if he received it and he did so illegally, there cannot be compliance with 1547 on her part? MR. MANCKE: Except that that's a constitutional problem that they had in seizing the blood 2 I-'~ .. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -'_ "'~",.-, r ~, , under Commonwealth v. Shaw, and the Commonwealth would be the first one to tell me that the constitutional issues have no relevancy in a license suspension case. THE COURT: A determination I have to make is, in this case, was this lady intentionally trying to defeat the breath test to cover up the fact that she was under the influence of alcohol, or was she legitimately trying her best and not being able to do it through a combination of ignorance and medical condition? That's a decision I have to make. MR. MANCKE: Absolutely. THE COURT: If you're standing there telling me, well, she gave blood, she wanted to give blood -- which I didn't hear -- but if you're standing there telling me she gave the officer the blood, they can use the blood in the criminal prosecution, so be it, that's fine, it's not fair to double-punish this lady, I might be thinking to myself, maybe she was really trying to give breath there and not really trying to beat this. They got the blood, and everything is fine. But that's not what I hear you telling me. What I hear you telling me is, I got blood, but they can't use it, but they should be able MR. MANCKE: I didn't say they couldn't use it. I've already indicated that the matter is not going to be contested on the criminal side. They can get the blood 3 ~ "e, 1....1 , ,., . " .. , 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 ,,"'~, if'-- in this case, procedurally, they didn't get the test result properly when they got it. That doesn't mean they can't go around and get it under the inevitable discovery rule and do it properly, because I think they could. I think they could issue a search warrant and get it. I think Commonwealth v. Jolly suggests that. THE COURT: I guess what I'm s~ying is you're confusing my meager abilities here. Are you telling me that this lady is not contesting the criminal part, and you're not worried about any of that, and that she tried her best to give -- to comply with this? MR. MANCKE: She has applied for the ARD. That's the avenue that we're going to go in this. In this instance, I think without her being told an explanation about the time-out -- and if you notice, the booking officer doesn't say when this thing concludes on the videotape that this is allover. The suggestion is that there's something else that's going to happen here. And even at -- I think it was at the 35-minute mark there was a suggestion to see about blood. That was the booking officer that was talking about the blood thing. The officer knew that my client was going to the hospital. Now, he says he didn't know that it was Holy Spirit, but he knew that she was being transported. He knew that the husband called and said that a blood test was taken, and he got the test result. I just think it should 4 1 ,~ -r'-I"""" , " ~ ,,-, ,~, ,- l!lIl.l:.- , 1 have been by a search warrant rather than by a subpoena. 2 THE COURT: Mr. Edwards, do you agree that 3 if I find as a fact that that lady was using her best efforts 4 to comply with the breath test and then got physically ill 5 and was, therefore, unable to comply that it's -- 6 MR. EDWARDS: That's not sufficient, Your 7 Honor. 8 THE COURT: What's not sufficient? 9 MR. EDWARDS: She has to present competent 10 medical evidence to establish her inability to blow, and I 11 can cite cases to you that -- 12 THE COURT: You're telling me that I can't 13 use my eyes? 14 MR. EDWARDS: That's correct, Your Honor. 15 THE COURT: You're telling me that? You're 16 telling me that I can't look at that videotape and find as a 17 fact that she was using her best efforts to try to get it 18 done? 19 MR. EDWARDS: Yes, Your Honor. If I might 20 cite some cases. 21 THE COURT: Cite some cases, sir. 22 MR. EDWARDS: Your Honor, I'll start with -- 23 these are all Commonwealth Court cases. It may sound unfair, 24 but this is the law. 25 THE COURT: Okay. Let's do it this way so 5 , ~ A_, _1,1 , " .. , 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 .,~?,~ ~n that both sides have a chance to respond. I'm going to find as a fact, as I look at that tape, that she tried her very best to comply with giving breath, and she was not trying to defeat the breath test. I'm finding that as a fact. I'm finding, as she's sitting there and I'm seeing her, she appeared, to my eyes, to be nauseous and to be not feeling well as she's attempting to give that test, yet she said nothing. I'm finding as a fact that the first test stopped at 22:38; and that sometime within a seven-minute period she became violently ill, she began throwing up, she had chest pains and had to be transported to the hospital. That's the facts that I'm finding. I will let you submit to me a brief that tells me, on that basis, that that is a valid refusal on her part. Mr. Mancke, I'll allow you to brief that particular issue. MR. MANCKE: That's fine. Thank you, Your Honor. THE COURT: Okay. Any other facts you want to argue? MR. EDWARDS: Your Honor, only -- I was going to recall Officer O'Donnell to establish the time between when all of this occurred and when the blood was drawn. I believe Your Honor already has that information, so I don't see the need to recall him for that purpose, that 6 i" , " 1 j "~" - 1 there was about a two-and-a-half-hour delay. 2 THE COURT: The blood was drawn, sure. 3 MR. EDWARDS: That's all. I was going to 4 recall him for that, but I believe that's in the record, Your 5 Honor, so there won't be a need to do that. 6 THE COURT: I'm very interested in seeing 7 the cases that say that I need to have Mr. Mancke present a 8 doctor to me to tell me that this lady was physically 9 incapable of 10 MR. EDWARDS: Yes, Your Honor. I can cite 11 five of them right now, but, if you like, I'll put it in 12 writing. 13 THE COURT: I'll enter the following Order: 14 "AND NOW, this 25th day of July, 2001, based upon 15 the findings of fact made after review of the evidence and 16 hearing the testimony, the parties are given 10 days within 17 which to file briefs in support of their respective 18 positions." 19 (The proceedings were concluded.) 20 21 22 23 24 25 7 '1J;ilK\ ~ -, -~ I'rl, ,~, , CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. .J;nf)-7~ (j ~ - Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. 1/J1/0( Date Edward E. Guido, J. 8 ic..,.~ " . ,- ~, , , I--It' .-,. Commonwealth Court of Pennsylvania Charles R. Hostutler Deputy Prothonotary/Chief Clerk March 4, 2003 Certificate of Remittal/Remand of Record TO: RE: Karns v. DOT No.2931 CD 2001 Trial Court/Agency Dkt Number: '~~'ruri1 ." Trial Court/Agency Name: Cumberland lCf)lc~~~';tconim611~PI~as Intermediate Appellate Court Number: File Copy If'\;~ Office Building, Room 624 -- Harrisbutll. PA 17120 717.255.1650 Annexed hereto pursuant to Pennsylvania Rules of AppeJiate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item trial court record Date of Remand of Record: Filed Date February 1, 2002 1 . Description ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt ~J? ~~~~- .."- - 8~H~ . Signatur,e .. J, < U /l(j , Date .-- 0 c s: -0 tT1 'ZiSS ZC~ ~~- &::=J.:.. --> zl;. ~ )>0 . c "~ o G.:' ~ ~ ,k. "''' c ~'-:-, r:- :::> 'AJ o " ~-!. __...;'T'- >'---, ~.... j -'"0-' , '~<Jj ~..-... _s'-m 'J .... ~ .< ""'" ,it' AUG 2 - 2001 /\ .t"." ... t~"""J "-~' I' ""'~ " I t. ,,;}" LAW OFFICES MANCKE, WAGNER, HERSHEY & TULLY JOHN B. MANCKE P. RICHARD WAGNER DAVID E. HERSHEY WILLIAM T. TULLY ~233 ~ORTH FRONT STREET HA~RISBURG, PA 17110 PHONE (717) 234~70S1 FAX (717) 234-7080 August 2, 2001 Hon. Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Cleone P. Karns v. Comm. of PA, Dept. of Transportation No. 01-2543 Civil Term Dear Judge Guido: Please find enclosed Petitioner's Memorandum in Support of License Suspension Appeal relative to the above-captioned case. Very truly yours, J hn B. Mancke JBM/hrc Enclosure cc: Terrance M. Edwards, Esq. (w/enc) ~?r,,--- ,..." - .. """ I, \ " ' ~(, (""'. ]' ~lj cfV\ 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: CLEONE P. KARNS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION NO. 01-2543 CIVIL TERM 2931 CD 2001 ,t,.,,-.. ~_Qo~'f "f"_ ~-:;:..:: -~';f1'" ;t"""c {j'i,........ "'<:~I" v "-'l..4 '..c::C~ The documents comprising the record have been numbered from No.1 to 91 Y' ,~lt>~. attac~ed hereto as Exhibit A is a list of the documents correspondingly num~ed ~o Identified with reasonable definiteness, inclrding with respect to each docun:unt, the-' number of pages comprising the document. - ,Ji;\' ~ \i!3 ..,.., <;; \ - The date on which the record has been transmitted to the Appellate Court is 1-28-02. An additional copy of this certificate is enclosed. Please silm and date COpY. thereby acknowlede:ine: receipt of this record. Date Signature & Title '1'" ,~,,~, ~ ,I. , -, , ~ 11 o o to No. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the CUMBERLAND 2931 CD 2001 01-2543 CIVIL COMPLETE in the Commonwealth of Pennsylvania county of Term, 19 is contained the following: COPY OF DOCKET ENTRY CLEONE P. KARNS v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SEE ATTACHED CERTIFIED DOCKET ENTRIES. 'C', I II o o Commonwealth of Pennsylvania County of Cumberland 1 ss: I, Curtis 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 ofthe whole record ofthe j;ase therein..stated" wherein C.Leone t'. Karns In TESTIMONY WHEREOF, I this 28th Plaintiff, and Comm. of PA., Dept. of Trnasportation Defendant _, as the same remains of record before the said Court at No. 01-2543 of Civil Term, A.D. 19_. have hereunto set my hand and affixed the seal of said Court day of January A. D., ~002 . Prothonotary I, Georqe E. Hoffer President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Lonq , 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 roper offic r. Commonwealth of Pennsylvania County of Cumberland } ss: sident Judge I, Curtis 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 28th ayof Ja r A.D. I~002. ~ /, Prothonotary "i,. PAGE /10. 2 - 7 1 8 - 9 10 11-18./ ..' 19- 24 jt 25 - 28 _:i 29 !I ^)! 30 - 31 32 - 34 35 89 'Ii 90 91 . . PYS510 2001-02543 ~ \..,,,1 Cumberland County Prothonotary's Office Civil Case Inquiry KARNS CLEON P (vs) PENNSYLVANIA COMMONWEALTH OF Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: o Page 5/01/20e 8'c O/OO/OOC %%oe 2931 CD 2C Reference No..: . Case Type.....: APPEAL - LICENSE SUSP Judgment...... ' .00 . Judge Assigned: GUIDO EDWARD.g Disposed Desc. : . ------------ Case Comments ------------- *****************************************************************************~ General Index Attorney Info KARNS CLEONE P 300 THIRD STREET ENOLAVILLE PA 17025 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT MANCKE JOHN B APPELLEE KABUSK GEORGE *****************************************************************************~ * Date Entries *****************************************************************************~ - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------ ORDER - DATED 5/7/01 - IN RE LICENSE SUSPENSION APPEAL - H~ING 6/18/01 8:30 AM CR 5 - BY EDWARD E GUIDO J - COPIES MAILED 5/8/01 ------------------------------------------------------------------ ORDER - DATED 5/31/01 - THE LICENSE SUSPENSION APP~AL HEARING SCHEDULED FOR 6/18/01 AT 8:30 AM IS CONTINUED TO 7/25/01 AT 3:00 F IN CR 5 OF THE CUMBERLAND COUNTY COURTIiOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 5/31/01 ------------------------------------------------------------------ ORDER OF COURT c DATED 7/25/01 - IN RE LICENSE SUSPENSION APPEAL - BASED UPON THE FINDINGS OF FACT MADE AFTER REVIEW OF THE EVIDENCE AND HEARING THE TESTIMONY THE PARTIES ARE GIVEN 10 DAYS WITHIN WHICH TO FILE BRIEFS IN SUPPORT OF THEIR RE&PECIVE POSITIONS-BY THE COURT EDWARD E GUIODO J COPIES MAILED 7/30/01 ------------------------------------------------------------------ TRANSCRIPT OF PROCEEDINGS - IN RE: ARGUMENT - PROCEEDINGS HELD BEFORE THE HONORABLE EDWARD E GUIDO J - CUMBERLAND CO COURTHOUSE - CARLISLE PA ON WEDNESDAY JULY 25, 2001 IN COURTROOM NO. 5 ------------------------------~----------------------------------- ORDER OF COURT - DATED 12/13/01 - IN RE LICENSE SUSPENSION APPEAL BEFORE GUIDO, J - OPINION AND ORDER OF COURT - FOR THE REASONS SET FORTH IN THE ACCOMPANYING OPINION PLFFS APPEAL FROM THE SUSPENSION OF HER OPERATING PRIVILEGES IS SUSTAINED AND THE ACTION OF THE DEPARTMENT IS REVERSED - BY THE COURT EDWARD E GUIDO J COPIES MAILED 12/13/01 ------------------------------------------------------------------ NOrICE OF APPEAL TO COMMONWEALTH COURT - OM THE ORDER FILED ON 12/13/01 BY TIMOTHY P WILE ESQ ------------------------------------------------------------------ ORDER OF COURT - DATED 12/20/01 - COUNSEL IS DIRECTED TO FILE A CONSICE STATEMENT OF MATTERS COMPLAINTED OF ON WITH RULE OF APPELLATE PROCEDURE 1925 B - BY THE COURT EDWARD E GUIDO J COPIES MAILED 12/21/01 ------------------------------------------------------------------ COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 2931 CD 2001 ------------------------------------------------------------------ STATEMENT OF MATTERS COMPLAINED OF ON APPEAL BY COMMONWEALTH OF PA ------------------------------------------------------------------ TRANSCRIPT FILED - BY THE COURT EDWARD E GUIDO J ------------------------------------------------------------------ OPINION AND ORDER PURSUANT TO PA RAP 1925 - DATED 1/22/02 - THE REASONS FOR OUR DECISION IN THIS MATTER ARE FULLY SET FORTH IN THE OPINION ACCOMPANYING OUR ORDER OF DECEMBER 13, 2001 - BY THE COURT EDWARD E GUIDO J COPIES MAILED 1/23/02 . -MEMORANDUM -& -MfSCEl.L-ANE(juSAf>Ji.~& EXHIBl'rS - - - - - - - - ****************************************************************************** * Escrow Information 5/01/2001 5/08/2001 5/31/2001 7/30/2001 7/30/2001 12/13/2001 12/19/2001 12/21/2001 12/31/2001 12/31/2001 1/15/2002 1/23/2002 ~ " ," ..., , " PYS510 Cumb~la~d.County Prot~onotarY'~Office ~",,) Cl vll Case Inqulry c..;: 2001-02543 KARNS CLEON P (vs) PENNSYLVANIA COMMONWEALTH OF Page 2 Filed. .... ...: 5/01/2001 Time. . . . . . . . . : 8: 31 Execution Date 0/00/0000 Jury Trial. . . . Disposed Date. 0/00/0000 Higher Crt 1.: 2931 CD 2001 Hiqher Crt 2.: * Fees & Debits Beq Bal Pvmts/Adi End Bal * ******************************************************************************** Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment.. . . . . . .00 Judge Assigned: GUIDO EDWARD E Disposed Desc. : ------------ Case Comments ------------- APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE APPEAL 35.00 35.00 .50 .50 5.00 5.00 5.00 5.00 30.00 30.00 ------------------------ 75.50 75.50 .00 .00 .00 .00 .00 ------------ .00 ******************************************************************************** * End of Case Information * ******************************************************************************** 1'RIIE OOPV FROM ReCORD '" T_,l\ltlYwIInJf,1 here unto S8t my hand and the of at CarlIsle, Pa.. fh dv:.u.. y' ;cooj" c~1 .~,...,." -, ,""~~_:I!"'!I, 11 , ~ ,. "~- ~_. o o ~ . " v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 0/- ~S~.J CO~C 't-~ CLEONE P. KARNS Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent ORDER AND NOW, this 'f"h day of IJ1Pl Y , 2001, upon consideration of the within Petition, it is hereby ordered and decreed that a hearing be held on the ,a-thday of L:li.LA/t.. , 2001, ata: 3() o'clock in Courtroom ~, Cumberland County Courthouse, Carlisle, Pennsylvania. Notice of said hearing shall be sent by certified mail to the Department of Transportation by Petitioner's attorney at least sixty days prior to the date of the hearing. I 6' 1,0 J /'Jol;f;'t.J. ( ~J,. CIl)/'I'~ l ,~~');~ :n o , . c~ v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 6/- :./5''13 ~ 'l..u- CLEONE P. KARNS Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent LICENSE SUSPENSION APPEAL AND NOW, this .9Ofh day of April, 2001, comes Cleone P. Karns, through her attorneys, Mancke, Wagner, Hershey & Tully, who respectfully represent: 1. Your Petitioner, Cleone P. Karns, is an adult individual residing 2204 Whispering Pines Drive, Marysville, Cumberland County, Pennsylvania. 2. Your Petitioner received a notice of license suspension, a copy of which is attached hereto and made a part hereof as Exhibit A, for an alleged violation of ~1547(c) of the Pennsylvania Motor Vehicle Code (implied consent). 3. Your Petitioner believes that the suspension is illegal, unjust and improper for reasons which include, but are not limited to, the following: a. there was no valid refusal to submit to chemical testing: b. there was no knowing and/or intelligent refusal to submit to chemical testing; c. the warnings and instructions by the officer and/or the booking agent were confusing and inadequate and untimely; d. Your Petitioner at no time engaged in a refusal to submit to chemical testing that would support a one-year loss of license pursuant to ~1547; e. there was inadequate compliance with 67 Pa.Code ~24 and/or inadequate compliance with 75 Pa.C.S.A ~1547(b): ~ -~- ,,,, Ill" '-. .., - ,--, o , . o f. Your Petitioner was physically unable to perform the chemical testing at the booking center; g. Your Petitioner was confused and no legal refusal occurred; h. Your Petitioner became ill during the processing and desired to submit to chemical testing; L booking officers called for an ambulance which took the Petitioner to the Holy Spirit Hospital where the blood test was performed; and j. chemical testing was done at the hospital and therefore compliance existed with 75 Pa.C.S.A. ~1547. WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to determine the validity of the suspension outlined in Exhibit A Respectfull John B. Man e, Esq., ID No. 07212 Mancke, Wa ner, Hershey & Tully 2233 N. Fro t Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner Dated: May 1, 2001 2 3 "-",,",,,, ~" ^ ,~ d~," -,-., , . c_,~ o o I hereby verify that the staternents 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. ~02?./ ()/ Date ~~;J~~ '-- --, 1 1,_"Y 'l' , . . 4- _or o c) COMMONWEALTH OF PENNSVLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 APRIL 06, 2001 MARYSVILLE PA 17053 010896112732755 001 03/30/2001 11639729 06/16/1942 (LEONE P KARNS 2204 WHISPERING PINES Dear Motorist: As a 'result of your violation of Vehicle Code, CHEMICAL. TEST REFUSAL drJving privilege is being SUSPENDED VEAR(S). Section 1547 of the on 03/21/2001, your.. for a period' of' i In order to comply with this sanction you are required to return any current driver's license, learner's permit and/or temporary driver's license (camera card) in your possession no later than the .ef,fective date listed. If you cannot comply with the ~equirements stated above, you are required to submit a DLl'lC~orm or a sworn affidavit stating that yOU are awa.re of the."sanctionayainst your driVing privi- lege: F;aLlureto comply wi.th this notice shall result in this Bureau'r'eferring this in'atter to the Pennsylvania State .Police for prosec~tion under SECTION 1571(a)(4) of the Ve- hicle Code. "0 A1though"fhe law mandates that your driVing privilege is under susp.enslon even if you do. not surrender your license, Credit will not begi'n unt i 1 'a11 current dr i ver' s license product(s), the ~LI6LC Form. or a letter acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES"'VOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECE IPT WITH IN 15 DAYS"'CONTACT THE DEPARTMENT IMMEDIA TEL V. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The effective date of suspension is 05/11/2001, 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 o'f 90 da'ys imprisonment AND a 1,000 fine AND your I license will be suspended for I year. I *********************** ********************** "';r~l~", ''<', ''>_.''''_~",_' ~ EXHIBIT '" !!l 4 ~ ~ ~ ~ . , T"'I; .. " . , .. j () r' \",) 010896112732755 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, APRIL 06, 2001, of this letter. If you file an appeal in the County Cou~t, the Cou~t will give yOU a time-stamped ce~tified copy of the appeal. In order for your appeal to be valid, you must send- .th-i--s- time-stamped certified 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, .~~,~ Rebecca L. Bickley, Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/TO: Departme~tof Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg,.PA 17106-8693 INFORMATION (7:00 IN STATE OUT-OF-STATE TOD IN STATE TDD OUT-OF-STATE 1'2' - "-"~~-, , , -' .~-~ - "' AM TO 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 ~ 11.[11 o o v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 01-2543 CIVil TERM CLEONE P. KARNS Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent ORDER AND NOW, thisJ~ day of ~ , 2001, the above-captioned license suspension appeal hearing, scheduled for the 18'h day of June, 2001 at 8:30 am, is continued to the 25'h day of July, 2001 at 3:00 pm in Courtroom 5, Cumberland County Courthouse, Carlisle, Pennsylvania. Notice of continuance shall be sent by certified mail to the Department of Transportation by Petitioner's attorney at least sixty days prior to the date of the hearing. Hon. Edward E. Guido ~ .:<~;<>~,~ , '; , ,,~, 1 II. ." ,. ~ - -~,- , .< . ~ :T f " i' ii r i' " I:' , , I 1 II i 1 I i" I 1 i I' 1-' I. i I " 1-, i. t< ~- ' I I. I I i I' I I 1 I' I I " I i i i I I hi" o 0' . LAW OFFICES MANCKE, WAGNER, HERSHEY & TULLY 2233 NORTH FRONT STREET JOliN B. t.1ANCKE P. RICHARD WAGNER DAVID E. HERSHEY WILLIAM't. TULLY HARRISBURG, PA 17110 May 25, 2001 Hon. Edward E. Guido Attn: Sandy Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Cleone P. Karns v. Comm. of PA, Dept. of Transportation No. 01-2543 Civil Term Dear Sandy: PHONE (717) 234-7051 FAX (717) 234.7080 Per your request, please find enclosed Order continuing the above-captioned license suspension appeal hearing. I have also enclosed envelopes addressed to Penn Dot and to me. Thank you for your consideration in this matter. Very truly yours, rJ7-'- John B. Mancke JSM/hrc Enclosures ""'~--, ~ -. 'i? - .;'-~S.. "4' '- f. "I "1_ -". _ ' ,'ec:. ,~ -,-."", -.,~" '1'- '-'. n "~.. " ,-.~ " q -',-,- .. ~: ';'" o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-2543 CIVIL TERM CLEONE P. KARNS, APPELLANT LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this 25th day of July, 2001, based upon the findings of fact made after review of the evidence and hearing the testimony, the parties are given 10 days within which to file briefs in support of their respective positions. Edward E. Guido, J. srs ~ r~,{.l~9 131' ~\ ~ Terrance M. Edwards, Esquire Attorney for Appellant John B. Mancke, Esquire Attorney for Appellant /0 ;~;'''' ~ ( , ,,-~, ,,~ -TT"-'" ,-;c_ '1-' , . . .',_",.," _ ,t .. ~ o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-2543 CIVIL TERM CLEONE P. KARNS, Appellant LICENSE SUSPENSION APPEAL TRANSCRIPT OF PROCEEDINGS IN RE: ARGUMENT Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Wednesday, July 25, 2001, in Courtroom No. 5 APPEARANCES: TERRANCE M. EDWARDS, Esquire Attorney for Appellee JOHN B. MANCKE, Esquire Attorney for Appellant 1 If ',- "-"', ,-1,1-,,-'-- ." ,"', , I', . ,I ','J " o o 1 (At the conclusion of the testimony, the 2 following argument occurred:) 3 THE COURT: Do you have anything else, Mr. 4 Mancke? 5 MR. MANCKE: Nothing other than judicial 6 notice that Holy Spirit Hospital is authorized to take serum 7 and blood testing, Pennsylvania Bulletin, Volume 31, No.2, 8 January 13th, 2001, Page 191. 9 THE COURT: I will so take judicial notice 10 of that. Let me get this straight, Mr. Mancke. You're 11 conceding for purposes of this hearing that the Commonwealth 12 can use the .10 result from Holy Spirit Hospital in its case, 13 and you're saying that, because of that, this should not be 14 considered a refusal? 15 MR. MANCKE: Your Honor, the officer 16 received the test result. 17 THE COURT: Okay. But there's an argument 18 that he received it illegally; he had no right to it. 19 MR. MANCKE: There's an absolute argument 20 that he received it illegally. 21 THE COURT: So that, therefore, if he 22 received it and he did so illegally, there cannot be 23 compliance with 1547 on her part? 24 MR. MANCKE: Except that that's a 25 constitutional problem that they had in seizing the blood 2 I~ '"_,,~ ---, I""-I? " , "'I I - .- ~--.- - -~ ......... ,. ,,:1 ..'~,,,",- '-'fd- ,_~ .. c e 1 under Commonwealth v. Shaw, and the Commonwealth would be the 2 first one to tell me that the constitutional issues have no 3 relevancy in a license suspension case. 4 THE COURT: A determination I have to make 5 is, in this case, was this lady intentionally trying to 6 defeat the breath test to cover up the fact that she was 7 under the influence of alcohol, or was she legitimately 8 trying her best and not being able to do it through a 9 combination of ignorance and medical condition? That's a 10 decision I have to make. 11 MR. MANCKE: Absolutely. 12 THE COURT: If you're standing there telling 13 me, well, she gave blood, she wanted to give blood -- which I 14 didn't hear -- but if you're standing there telling me she 15 gave the officer the blood, they can use the blood in the 16 criminal prosecution, so be it, that's fine, it's not fair to 17 double-punish this lady, I might be thinking to myself, maybe 18 she was really trying to give breath there and not really 19 trying to beat this. They got the blood, and everything is 20 fine. But that's not what I hear you telling me. What I 21 hear you telling me is, I got blood, but they can't use it, 22 but they should be able 23 MR. MANCKE: I didn't say they couldn't use 24 it. I've already indicated that the matter is not going to 25 be contested on the criminal side. They can get the blood 3 /3 ,....., '<i,"'; o 1 if -- in this case, procedurally, they didn't get the test 2 result properly when they got it. That doesn't mean they 3 can't go around and get it under the inevitable discovery 4 rule and do it properly, because I think they could. I think 5 they could issue a search warrant and get it. I think 6 Commonwealth v. Jolly suggests that. 7 THE COURT: I guess what I'm saying is 8 you're confusing my meager abilities here. Are you telling 9 me that this lady is not contesting the criminal part, and 10 you're not worried about any of that, and that she tried her 11 best to give -- to comply with this? 12 MR. MANCKE: She has applied for the ARD. 13 That's the avenue that we're going to go in this. In this 14 instance, I think without her being told an explanation about 15 the time-out -- and if you notice, the booking officer 16 doesn't say when this thing concludes on the videotape that 17 this is allover. The suggestion is that there's something 18 else that's going to happen here. And even at -- I think it 19 was at the 35-minute mark there was a suggestion to see about 20 blood. That was the booking officer that was talking about 21 the blood thing. The officer knew that my client was going 22 to the hospital. Now, he says he didn't know that it was 23 Holy Spirit, but he knew that she was being transported. He 24 knew that the husband called and said that a blood test was 25 taken, and he got the test result. I just think it should 4 14- l~ X":':"r"'!l""''!'"''~ ' -cr.; "," . >, ., '--1 ~' :1 ' ,F'" 1'-" 1_" ., .1 L _. o o 1 have been by a search warrant rather than by a subpoena. 2 THE COURT: Mr. Edwards, do you agree that 3 if I find as a fact that that lady was using her best efforts 4 to comply with the breath test and then got physically ill 5 and was, therefore, unable to comply that it's -- 6 MR. EDWARDS: That's not sufficient, Your 7 Honor. 8 THE COURT: What's not sufficient? 9 MR. EDWARDS: She has to present competent 10 medical evidence to establish her inability to blow, and I 11 can cite cases to you that -- 12 THE COURT: You're telling me that I can't 13 14 15 use my eyes? MR. EDWARDS: That's correct, Your Honor. THE COURT: You're telling me that? You're 16 telling me that I can't look at that videotape and find as a 17 fact that she was using her best efforts to try to get it 18 19 done? MR. EDWARDS: Yes, Your Honor. If I might 20 cite some cases. 21 THE COURT: Cite some cases, sir. 22 MR. EDWARDS: Your Honor, I'll start with -- 23 these are all Commonwealth Court cases. It may sound unfair, 24 but this is the law. 25 THE COURT: Okay. Let's do it this way so 5 ~ ~.~ , Ib - o o 1 that both sides have a chance to respond. I'm going to find 2 as a fact, as I look at that tape, that she tried her very 3 best to comply with giving breath, and she was not trying to 4 defeat the breath test. I'm finding that as a fact. 5 I'm finding, as she's sitting there and I'm 6 seeing her, she appeared, to my eyes, to be nauseous and to 7 be not feeling well as she's attempting to give that test, 8 yet she said nothing. 9 I'm finding as a fact that the first test 10 stopped at 22:38; and that sometime within a seven-minute 11 period she became violently ill, she began throwing up, she 12 had chest pains and had to be transported to the hospital. 13 That's the facts that I'm finding. I will 14 let you submit to me a brief that tells me, on that basis, 15 that that is a valid refusal on her part. Mr. Mancke, I'll 16 allow you to brief that particular issue. 17 MR. MANCKE: That's fine. Thank you, Your 18 Honor. 19 THE COURT: Okay. Any other facts you want 20 to argue? 21 MR. EDWARDS: Your Honor, only -- I was 22 going to recall Officer O'Donnell to establish the time 23 between when all of this occurred and when the blood was 24 drawn. I believe Your Honor already has that information, so 25 I don't see the need to recall him for that purpose, that 6 llo !~ ,;:'~1 _)~J",IJ,......~ -IP;,<, , __0 11 ,. f', 't.;t1t/ o 1 there was about a two-and-a-half-hour delay. 2 THE COURT: The blood was drawn, sure. 3 MR. EDWARDS: That's all. I was going to 4 recall him for that, but I believe that's in the record, Your 5 Honor, so there won't be a need to do that. 6 THE COURT: I'm very interested in seeing 7 the cases that say that I need to have Mr. Mancke present a 8 doctor to me to tell me that this lady was physically 9 incapable of 10 MR. EDWARDS: Yes, Your Honor. I can cite 11 five of them right now, but, if you like, I'll put it in 12 writing. 13 THE COURT: I'll enter the following Order: 14 "AND NOW, this 25th day of July, 2001, based upon 15 the findings of fact made after review of the evidence and 16 hearing the testimony, the parties are given 10 days within 17 which to file briefs in support of their respective 18 positions." 19 (The proceedings were concluded.) 20 21 22 23 24 25 7 17 \ \ }~ I~'": ': ,-' ''" I:': ,~ - ',., ih -'-'\ ':~~\\ n" ~ -<" -- f"") '\'!.<d/" o CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. /~12(j~ Susan Rice Stoner Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. 1/J1/0( Date Edward E. Guido, J. 8 I~ ,1'"""<, . "~to! r . '''''~,~-..." '} o CLEONE P. KARNS, Plaintiff V. o : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF : NO. 2001-2543 CIVIL TERM PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, : CIVILACTION-LAW Defendant AND NOW, this IN RE: LICENSE SUSPENSION APPEAL BEFORE GUIDO. J. ORDER OF COURT IJ""- day of DECEMBER, 2001, for the reasons set forth in the accompanying opinion, Plaintiffs appeal from the suspension of her operating privileges is SUSTAINED and the action ofthe Department is REVERSED. Edward E. Guido, J. L "1" ~ol -fYl o,;jj George Kabusk, Esquire J ~ -J3 -(),' \. R V. 5 For the Department of Transportation 'J \ John b. Mancke, Esquire For the Plaintiff :sld '-',"- "'"I,'" f' - '-," rt( '1'1' , o o CLEONE P. KARNS, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF : NO. 2001-2543 CIVIL TERM PENNSYLVANIA DEPARTMENT: OF TRANSPORTATION CIVIL ACTION -LAW Defendant IN RE: LICENSE SUSPENSION APPEAL BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us is the appeal of Ms. Karns from the one year suspension of her operating privileges. The Commonwealth of Pennsylvania Department of Transportation (hereinafter "Department") suspended her operating privileges for failing to complete a breath test as required by Section 1 547(a) of the Vehicle Code.! A hearing was held before this Court and the parties have briefed their respective positions. This matter is now ready for disposition. FINDINGS OF FACT On the evening of March 21,2001, Ms. Karns was arrested by Officer O'Donnel ofthe West Shore Regional Police Department and was charged with driving under the influence of alcohol. After being informed ofthe appropriate warnings under the Implied Consent Law,2 she agreed to submit to a chemical test of her breath test. 175 Pa. C.S.A. * 1547(a). 275 Pa. C.S.A. * 1547. ,~":' r ""'" '1" , ~ "'-' " - . " -- ,.. 'r.""_:', , -, . '., 'to,' J.o I" - , ~,c...,. I~ ~ ..' o NO. 2001-2543 CIVIL o The test was conducted by Processing Agent Carol Franks. The test began at 22:31 hours and the entire procedure was videotaped3 It is apparent from the videotape that Ms. Kams was making a good faith effort to comply with the instructions of Agent Franks. It is also apparent that she was confused, emotionally distraught and not feeling well. Try as she might, she simply was not able to provide a sufficient sample of her breath to obtain a valid reading on the Intoxilyzer 5000. The test timed out at 22:38 hours. Officer O'Donnel was summoned back to the booking center to determine whether he wanted to have Ms. Karns submit to a blood test. When the officer arrived, Ms. Kams was vomiting and complaining of chest pains.4 Despite the fact that he knew she was going to the hospital via ambulance, he elected not to have her submit to a blood test. Rather, he chose to treat her failure to complete the breath test as a refusal. 5 DISCUSSION To sustain a license suspension under Section 1547 of the Vehicle Code, the Department has the burden of proving that the driver was: (l) arrested for driving under the influence; (2) asked to submit to a chemical test; (3) refused to do so; and (4) was properly advised of the license suspension resulting from a refusal. Carlin v. Commonwealth v. Dept. of Transportation, 739 A.2d 656 (pa. Cmwlth. 1999). The only issue in the instant appeal is whether Ms. Kam's failure to supply a sufficient 3 See Commonwealth Exhibit 2. 4 The onset of the vomiting was 22:45 hours. 5 As part of her treatment at the hospital, blood was drawn and tested for alcohol content. The results were above a 0.10% and were subpoenaed by the arresting officer for use in the underlying prosecution. 2 ),( -",. II- I" 't . ""' ,.,--- o NO. 2001-2543 CNIL o breath sample amounts to a refusal under section 1547(b) of the Vehicle Code.6 "Even a licensee's good faith attempt to comply with the test constitutes a refusal where the licensee fails to supply a sufficient breath sample." Pappas v. Commonwealth Dept. of Transportation, 669 A.2d 504, 508 (Pa. Commonwealth 1996). Therefore, we are satisfied that the Commonwealth has sustained its burden. However, our inquiry does not end there. Ms. Karns may still avoid a license suspension if she can "prove by competent evidence that. . . she was physically unable to take the test or was incapable of making a knowing and conscious refusal." Carlin, 739 A.2d at 659. The Department argues that Ms. Karns had to present competent medical evidence to sustain her burden of proof on those issues. We disagree. As the Commonwealth Court recently stated in Carlin, supra: With regard to a driver's physical inability to take the test, each case must be decided on its individual facts. Department of Transportation, Bureau of Traffic Safety v. Day, 93 Pa.Cmwlth. 49, 500 A.2d 214 (1985). Medical evidence of a driver's physical incapacity is not a per se requirement. Department of Transportation, Bureau of Driver Licensingv. Groscost, 142 Pa.Cmwlth. 36, 596 A.2d 1217 (1991). Where a driver's physical incapacity is obvious, there is no need for the driver to present medical evidence to prove it. McQuaide v. Department of Transportation, Bureau of Driver Licensing, 166 Pa.Cmwlth. 683, 647 A,2d 299 (1994). In determining the obviousness of a driver's incapacity, a court does not "leave [its] common sense at home." Id. at 302. 739 A.2d 659. The Commonwealth Court has also recognized: Many factors must be considered in determining whether the refusal of a driver to submit to a blood test or the breathalyzer was a 6 The relevant portion provides as follows; (b) Suspension for refusal. - (I) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. 75 Pa. C.S.A. g 1547(b)(I). 3 )). .~IJlJl~_ ,,~, I "'" ^ '-; < '1"" , ~ o NO. 2001-2543 CIVIL o knowing and conscious refusal. One ofthe most important is the driver's mental and physical state at the time. . . . . . . With regard to the motorist's physical condition, each case must be decided on its individual facts. ... the evidence was substantial enough to support the trial judge's finding that the refusal was not conscious and knowing, even absent medical testimony to form a nexus between the injuries sustained and the refusal to take the test. Department of Transportation, Bureau of Traffic Safety v. Day, 93 Commonwealth 49, 500 A,2d 214, 215 (1985). In the instant case, after hearing Ms. Karns testify and after viewing the videotape, we are satisfied that she sustained her burden of proof. We could see the attempts made by Ms. Karns to complete the breath test. Weare satisfied that she was not trying to sabotage the test. It was obvious that she was emotionally distraught and, as it turns out, physically ill. We concluded that her physical condition and emotional state were such that she was not able to give the requisite breath samples, even though she desired to do so. Weare also convinced that she was so preoccupied with her physical illness that she did not, and could not, make a knowing and conscious decision to refuse the breath test. For those reasons, the appeal from the suspension of her operating privileges will be sustained. 4 ~3 :':"- - ~- , '. ,-,,_ free -,,;,,< d -I'''' , I~' , '"1"[ . In. ~ .... o NO. 2001-2543 CIVIL o ORDER OF COURT AND NOW, this 13TH day of DECEMBER, 2001, for the reasons set forth in the accompanying opinion, Plaintiffs appeal from the suspension of her operating privileges is SUSTAINED and the action ofthe Department is REVERSED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. John B. Mancke, Esquire For the Plaintiff George Kabusk, Esquire For the Department of Transportation :sld 5 24- ".;"'~""' ~ ~~, , . . , '-,11.-' ,-,., ,~ , 'I ' !-, "- ~ - ,I . -f . o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DMSION 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 17104-2516 (717) 787-2830 CLEONE P. KARNS, Appellee vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant o } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A NO. 2001-2543 Civil Term 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 December 13, 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 under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. ."'fi""'l'l"~'''''~ ~. 11,- J t ~~~ Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 JS -~'~-l- '~.",."_._~-.~~ ~~,,,",,,=,j o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DMSION BY: TIMOTHY P. WILE ASSISTANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RNERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P A CLEONE P. KARNS, Appellee COMMONWEALTH OF PENNSYL VANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRNER LICENSING, Appellant NO. 2001-2543 Civil Term Reauest for Transcript A notice of appeal having been filed in this matter, the official court reporter is hereby 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 the transcript. ;;t~)IIA Assistant Counsel In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 "}.Jp "j~~ I" flY- I ~ 'j ~,- o o COMMONWEALTH OF PENNSYLV ANlA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEIDCLE & TRAFFIC LAW DIVISION BY: TIMOTHYP. WU,E ASSIST ANT COUNSEL IN-CHARGE APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 30397 RNERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYL V ANlA 17104-2516 (717) 787-2830 vs. } } } } } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CLEONE P. KARNS, Appellee COMMONWEALTH OF PENNSYLV ANlA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRNER LICENSING, Appellant NO. 2001-2543 Civil Term 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. 121: Fit-st Class Mail; Postage Pre-Paid; Addressed as Follows: Judge Edward E. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PAl 7013 Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 John B. Mancke, Esquire Att. for Appellee Karns 2233 N. Front Street Harrisburg, PAl 711 0 ~ c;:fj: =4 Attorney for Department of Transportation Date: December 19, 2001 :17 '^"~F"'~ . ~ ""~ ~ . Ir, I' r" I " ~, ,- l2YS519 2001-02543 KARNS Cum~la~d,County prot~onotarY'$~?ffice n'Q Clvll Case Inqulry 1".1) CLEON P (vs) PENNSYLVANIA COMMONWEALTH OF Filed. . . . . . . . : Time......... : Execution Date Jury Trial.... Disposed Date. Higher Crt 1.: Higher Crt 2.: Page 1. Reference No. . : Case Type.....: APPEAL - LICENSE SUSP Judgment.. . . . . . .00 JVdge Assigned: GUIDO EDWARD E Dlsposed Desc. : ------------ Case Comments ------------- 5/01/2001 8:31 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info KARNS CLEONE P 300 THIRD STREET ENOLAVILLE PA 17025 PENNSYLVANIA COMMONWEALTH OF DEPARTMENT OF TRANSPORTATION RIVERFRONT OFFICE CENTER HARRISBURG PA 17104 2516 APPELLANT MANCKE JOHN B APPELLEE KABUSK GEORGE ******************************************************************************** * Date Entries * ******************************************************************************** 5/01/2001 5/08/2001 5/31/2001 7/30/2001 12/13/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - APPEAL FROM SUSPENSION OF DRIVERS LICENSE ------------------------------------------------------------------- ORDER - DATED 5/7/01 - IN RE LICENSE SUSPENSION APPEAL - HEARING 6/18/01 8:30 AM CR 5 - BY EDWARD E GUIDO J - COPIES MAILED 5/8/01 ------------------------------------------------------------------- ORDER - DATED 51.311.01 - THE LICENSE SUSPENSION APPEAL HEARING SCHEDULED FOR 6/18/01 AT 8:30 AM IS CONTINUED TO 7/25/01 AT 3:00 PM IN CR 5 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE FA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 5/31/01 ---------------------------------------,---------------------------- ORDER OF COURT - DATED 7/25/01 - IN RE LICENSE SUSPENSION APPEAL - BASED UPON THE FINDINGS OF FACT MADE AFTER REVIEW OF THE EVIDENCE AND HEARING THE TESTIMONY THE PARTIES ARE GIVEN 10 DAYS WITHIN WHICH TO FILE BRIEFS INSUPPORT OF THEIR RESPECIVE POSITIONS- BY THE COURT EDWARD E GUIODO J COPIES MAILED 7/30/01 ------------------------------------------------------------------- ORDER OF COURT - DATED 12/13/01 - IN RE LICENSE SUSPENSION APPEAL - FOR THE REASONS SET FORTH ~N THE ACCOMPANYING OPINION PLFFS APPEAL FROMTE SUSPENSION OF HER OPERATING PRIVILEGES IS SUSTAINED AND THE ACTION OF THE DEPARTMENT IS REVERSED - BY THE COURT EDWARD E GUIDO J COPIES MAILED 12/13/01 - - - - - - - - - - - - - - LAST ENTRY ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adi End Bal * *****************************************~************************************** APPEAL LIC SUSP TAX ON APPEAL SETTLEMENT JCP FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.00 .00 .00 .00 .00 ------------ .00 45.50 45.50 ******************************************************************************** * End of Case Information * ******************************************************************************** ~"'OWI'l"-"~ ...' 1 ,"'f\""V r.:1":'10~~ ~r:f"""Fln 'v~;j>> ~ !lll",,~'a,,'~ fr'~"=~~;V" ~,&~I . .. ';marooJ, I r,sfllullto Est my llano ..' L. sC:J1 of saki Coort at ~. Pa, ,.,:,~/fq;;, 1 !laY oI~. ~/ 00. ( "fAg' a -~, I PmtttonotlllY d-~ '7 ,. '" j-' ~- -~ '........."r. -~ .it'[ L _ 1'~'~' --- ^,' - T ,- iii o o CLEONE P. KARNS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING NO. 2001-2543 CIVIL ORDER OF COURT AND NOW, this 20~ day of DECEMBER, 2001, Counsel is directed to file a concise statement of matters complained of on appeal within fourteen (14) days of todays date in accordance with Rule of Appellate Procedure 1925(b). Edward E. Guido, J. John B. Mancke, Esquire For the Appellee Timothy P. Wile, Esquire For the Department of Transportation :sld .~ b~/l'R-XS <1'"_" ~ --4'(-' >'6 ,;' 'U,12 "~...96 ,,,.... .~~ ..Q __,' VI ('.1 r C'"> IZ. <2 ~i ~ Q~ __1~1 ;).1 '-;.,c. ~_ , '-'"< .'':'7 "'" u. . ~ I :T" ". ' .. (""j ~ o i)(.(e /-1-'1-62" Commonwealth Court of Pennsylvania December 21, 2001 RE: Karns v. DOT No.: 2931 CD 2001 Agency Docket Number: 2001-2543 Civil Term Filed Date: December 19, 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. John B. Mancke, Esq. Timothy P. Wile, Esq. Party Name Bureau of Driver Licensing Cleone P. Karns Bureau of Driver Licensing Party Type Appellant Appellee Appellant 36 ,ii..r""", -, -,. ~~r!"11 't'" "l . ,-.-~, ,~ .....---- , c. '.' - - . . COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 0 F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEmCLE & TRAFFIC LAW DMSION 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 17104-2516 (717) 787-2830 CLEONE P. KARNS, Appellee vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant (""\) ~"" ~'1 5 r o c c: ?' :QfJ5' 0 "Ie '"'1 i~- r) i~i ;~ 5"---' c: /> --< -< o } } } } } -;:;:; _ ::0 -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,P A NO. 2001-2543 Civil Term Notice of Appeal u '~..' -[1 -. --' -- --;~~) : '~ :," ~j-;C) r",!"!"! Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Conlp1onwealth Court of Pennsylvania from the order that was filed in this matter on December 13, 2001. This order is from a statutory appeal and cannot bereduced to judgment. The order has been entered in the docket and notice of its entry has been given underPa. R.C.P. 236. A copy of the docket entries are attached hereto. ,..----j 'i._::,_, ," ..<- 'I.""', '-'" II ~~~ TlMOTHYP. WILE Assistant Coufi!;ef In-Charge Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717)787-2830 rnj l~ CO-~, y ~~nM o,,,,r:;;,"'Zlt'1pn n""",c . ;; r~ G'-i'V"'-'" ~'.''''''''''''V~'''{'V In TesUmeni' w!lfJ,OOl, i ham w,tt.' my hand and the s\l<li (if :>aid Cl!iurt <it (;;}{gsle, Pa. This 1'1, day. lll~~( (. 'i~J {l, ~ Protholllitarf I ' ..~" ~ 31 I''} ".. O. ,,;', , ,,/ ,r~ f!i i'UI\J ~~ '. '~'il'-' DEC3 1 200r<~, v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-2543 CIVIL TERM LICENSE SUSPENSION APPEAL CLEONE P. KARNS, Appellee COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Appellant STATEMENT OF MATTERS COMPLAINED OF ON APPEAL TO THE HONORABLE, THE JUDGES OF THE SAID COURT: NOW COMES the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant, by and through its attorney, Terrance M. Edwards, in compliance with the requirements of Pa. RAP. 1925(b) and the Order of this Honorable Court entered December 20, 2001 , and hereby sets forth the matters about which it complains with respect to its appeal of this Court's Order of December 13th, 2001 : 1. The trial court erred as a matter of law in ruling that Appellee Karns was not required to prove by competent medical evidence that she was physically incapable of completing the breath test requested by the arresting police officer, Officer O'Donnell, pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. ~1547(b)(1). See Wright v. Department of Transportation, Bureau of Driver Licensing, 2001 Pa. Commw. LEXIS 854, No. 766 C.D. 2001 (Pa. Cmwlth. Nov. 16, 2001); Lemon v. Department of Transportation, Bureau of Driver Licensing, 763 A.2d 534 (Pa. Cmwlth. 2000); Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456 (Pa. Cmwlth. 2000). 2. The trial court erred as a matter of law in ruling that Appellee Karns was not required to prove by competent medical evidence that she was incapable of making a knowing and conscious decision to refuse to complete the breath test properly. In the absence of obvious, severe and 3~ 1=~, __"""'"_,-, < , "~~ I o o incapacitating injuries, expert medical testimony is required in order to prove a licensee's inability to make a knowing and conscious decision. Ostermeyer v. Department of Transportation, Bureau of Driver Licensing, 703 A.2d 1075 (Pa. Cmwlth. 1997); Department of Transportation, Bureau of Driver Licensing v. Holsten, 615 A.2d 113 (pa. Cmwlth. 1992); Department of Transportation, Bureau of Driver Licensing v. Gar/an, 550 A.2d 873 (Pa. Cmwlth. 1988), appeal denied, 563 A.2d 449 (Pa. 1989). 3. Appellant Bureau acknowledges that this Honorable Court filed an Opinion with its Order entered on December 13, 2001. Accordingly, the Bureau reserves the right to argue any additional issues that may be raised should this Court file another or a supplemental opinion in response to this Statement of Matters Complained of On Appeal. Respectfully submitted, ~w~~ Terrance M. Edwards Assistant Counsel Appellate Section Vehicle & Traffic Law Division Attorney 1.0. No. 25231 Attorney for Appellant Bureau 33 '~'(- I"':' f' ',' [' """" ~ilIiJrn~IlJ r''''iXf" ~ o o v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-2543 CIVIL TERM LICENSE SUSPENSION APPEAL CLEONE P. KARNS, Appellee COMMONWEALTH OF PENNSYLVANIA 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 Statement of Matters Complained of On Appeal upon the person and in the manner indicated below, which service satisfies the requirements of Pa. RAP. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: John B. Manke, Esquire MANKE, WAGNER, HERSHEY & TULLY 2233 N. Front Street Harrisburg, PA 17110 ('~ (717) 234-7051 , .: ~.I.-S-:",? l Q ~ DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: December 27, 2001 ?J4 . ~ "~ e~ .,.... f ,. ~i r'<" ~ ~. '"rr~. -< - cr 't:~> ','-",; o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01-2543 CIVIL TERM CLEONE P. KARNS, Appellant LICENSE SUSPENSION APPEAL TRANSCRIPT OF PROCEEDINGS . Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Wednesday, July 25, 2001, in Courtroom No. 5 APPEARANCES: TERRANCE M. EDWARDS, Esquire Attorney for Appellee JOHN B. MANCKE, Esquire Attorney for Appellant 1 30'. '~..,.;o, " "r_,,,_,"._ _, d + , ".- '1--'.<'''' '-1 --r" 1 " "__< "" D . lIT Iff o INDEX' TO WITNESSES FOR THE APPELLEE DIRECT CROSS Ptl. Jeffrey L. O'Donnell 3 Carol D. Frank 20 FOR THE APPELLANT Cleone P. Karns 38 INDEX TO EXHIBITS COMMONWEALTH'S EXHIBIT NO. 1 - Chemical test warnings 2 - Videotape 3 - Photocopy of Intoxilyzer breath test ticket 2 ',iJIt_.q ", ,.-, ,-~ '-'~'''-'''' '- '--',""1;;,,' ,,' ,,-' --'I,.,,~ ^',''- "'f'-""""',' ',- 10 28 46 -,- o REDIRECT RECROSS IDENTIFIED 24 25 ~ ! 18 35 48 6 ADMITTED 19 38 38 3~ ~.,.. ~~ . ~ '] ~ ~>r-" o o 1 THE COURT: This is the time and place for 2 the hearing on the appeal from the license suspension. Is 3 the Commonwealth ready to proceed? 4 5 6 MR. EDWARDS: Yes, Your Honor. THE COURT: You are, sir? MR. EDWARDS: May it please the Court, I am 7 Terrance Edwards, Office of General Counsel, representing the 8 Pennsylvania Department of Transportation, Bureau of Driving 9 Licensing, in this matter. 10 THE COURT: Welcome. Mr. Mancke is no 11 stranger. Are you ready to proceed, Mr. Mancke? 12 MR. MANCKE: Yes, we are, and to indicate on 13 the record that I have advised the Commonwealth that we are 14 stipulating to the reasonable grounds to take the test, as 15 well as the fact that my client had been placed under arrest. 16 MR. EDWARDS: Your Honor, that would appear 17 to cover two of the four elements that were established by 18 the Supreme Court in the Banner case. With that, then, the 19 department will call Officer Jeffrey O'Donnell. 20 PTL. JEFFREY L. O'DONNELL 21 having been duly sworn, testified as follows: 22 DIRECT EXAMINATION 23 BY MR. EDWARDS: 24 Q Officer O'Donnell, please state your full 25 name and spell your last name. 3 '67 '>c"l;!Il In"~,~--,' , 'J. ~,;' 'C'- " .. CiO"':f"fi.N"'" ' , ~ -ili'! :"'" o o 1 A Patrolman Jeffrey L. O'Donnell, 2 O-D-o-n-n-e-l-l. 3 4 5 (; 7 8 9 10 11 12 13 14 lS 16 17 suit. Q A By whom are you employed? By the West Shore Regional Police Department. Q A How long have you been employed there? I have been employed there since 1990. Q Just generally, what are your duties, Officer O'Donnell? A Patrol, response to calls given to me by the county, traffic enforcement. Q Do you recognize the licensee in this case, Ms. Karns? A Yes, sir, I do. Q Could you point her out for the record? A She's seated beside counsel in the brown 18 MR. EDWARDS: Your Honor, may the record 19 reflect that Officer O'Donnell did point to Ms. Karns. 20 BY MR. EDWARDS: 21 Q On March 21st, 2001, did you have occasion 22 to come into contact with Ms. Karns? 23 24 25 A Yes, sir, I did. Q We have stipulated that there was a proper arrest for driving under the influence. Were you involved in 4 C", , ,.", "' - --'" ~ 1-, ' '-I' , ~, , , b8' , '1 - w~.rJ!?C[)<lT~""- f .'~ ~.: [ll < , -~ o o that arrest? 1 2 3 hours. A Yes, sir. The arrest was made at 2200 4 5 6 7 8 9 10 Q You did, in fact, arrest her for driving under the influence, is that correct? A Yes, sir, I did. Q After you had arrested her, what, if anything, did you do? A She was transported from the scene by myself in Vehicle 3204 at 2202 hours. We arrived at booking at 2206 11 hours. She was turned over to the agents at the processing 12 center for Breathalyzer and for processing. 13 Q Where is the location for the processing for 14 the Breathalyzer? 15 A 1993 Hummel Avenue in Camp Hill. It's the 16 Lower Allen Police Department to the rear. 17 18 19 20 21 22 Did you personally take her to the center? Q A Yes, sir, I did. Q Did you have occasion that evening to provide any type of warnings to Ms. Karns? A At 2217 hours I read her the DL-26 form. MR. EDWARDS: Your Honor, may I approach the 23 witness? 24 THE COURT: You may. 25 BY MR. EDWARDS: 5 ~1 '. '-'1,"" -'1 ,e'" -,~ , 1~. I '^ -<^ -- 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ")')~r , o o 1 2 3 Q I'd like to hand the witness what has been marked as Commonwealth's Exhibit 1 and ask the witness to take a look at that for a moment. (Brief pause.) 4 Are you familiar with that document, officer 5 O'Donnell? A Yes, sir, I am. Q what does that appear to you to be? A This is a copy of the DL-26 that I utilized and filled out that night and signed and was signed, also, by the Defendant after I read it to her. Q what were the circumstances under which you read the warnings to her? A She was at the booking center, and I was asking for a chemical test of the breath. Q When you say you read the warnings, what, specifically, from that document did you read? A The chemical test warnings are as follows, (reading): Please be advised that you are now under arrest for driving under the influence of alcohol or a controlled substance pursuant to 3731 of the Vehicle Code. I'm requesting that you submit to a chemical test of and I filled in breath. THE COURT: When you filled in -- you told that to her when you filled it in on the form? THE WITNESS: Yes, sir. 6 "1"" ,., I' 1, 1rD . . ".' 'llnlrr~.~"~-' -n"' 'n~""~ o o 1 BY MR. EDWARDS: 2 Q Did you read her the rest of the warnings 3 that are contained under the words Section 1547 chemical test 4 warnings? 5 Section 3 and 4, yes, sir. 7 A Q (b) and (c) ? A Q to her? A 8 9 14 Yes, sir. Did she respond to that when you read them A The first time I read it, she refused 15 chemical testing. 16 Q You say she refused. What did she actually 17 18 do? 19 20 21 A She said she wasn't going to take the test. Q What, if anything, happened after that? A I then gave her the opportunity again and read it slowly, and she said that she would take the chemical 22 23 test. 24 25 -" ,.J: '"~'lJ'',''''' Q Did she appear to be intoxicated with you? A Yes, sir, she was. Q You had experience dealing with people who 7 4ft 11">"-'- ," , :.]" ~ . 1 'l]'lll , J.~"1l^'..1 o o 1 you knew to be or felt to be intoxicated? 2 A Yes, sir. I have 26 years of experience in 3 law enforcement. 4 Q On a scale of, say, 1 to 10 for intoxicated 5 people, do you have an opinion -- 6 MR. MANCKE: Your Honor, I'm going to 7 object to the scale. 8 9 10 BY MR. EDWARDS: 11 Q THE COURT: Sustained. MR. EDWARDS: We won't go there, Your Honor. What, if anything, happened after you read 12 the warnings to her the second time? 13 A I left to go back on patrol. She was 14 released after I filled the forms out that are required by 15 the central booking. 16 Q Did you, yourself, conduct the breath test 17 that night? 18 19 20 21 A Q A Q No, sir, I didn't. Agent Franks did. Did you leave Ms. Karns with Agent Franks? Yes. Did you have occasion to see Ms. Karns again 22 that evening? 23 A Yes, sir. I was contacted by the 24 communications center to return to the booking center. At 25 2245 I arrived. ";;",.,. ^~ -' ,~- /""., (0'7'" " 8 ~L "1 ' _~ _ . - '/fr' '.: "' "_0 " "'''''"''t"'' ' ~ ,-.,0, 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 What, if anything, happened after you returned? A Agent Franks advised me that the breath tests were not sufficient samples, and when I got there she was requesting -- the Defendant was requesting to go to the hospital. She was getting sick. She was requesting to go to the hospital. Q What, if anything, did you do after you were advised of this? A I advised Agent Franks that it was a refusal then, based on the information I received from her. Q Did have any further contact with Ms. Karns from that point on? A No, sir. She was transported by ambulance. I left even before the ambulance arrived. Q Then, as far as you were concerned at that point, this was a refusal of the request for chemical testing? A Yes, sir, based on what I was told by the operator. Q To your knowledge, did she ever complete her breath test that night? A No, sir. MR. EDWARDS: No further questions, Your Honor. 9 o .~ - . ,~ t,. " - '" , '-I, .'-- ,- 'f "~ ,.~ "'<'""{T'~~T '1 TT I' .'=' , -',l1'J!II. 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 THE COURT: Cross. CROSS-EXAMINATION BY MR. MANCKE: Q Officer, you took her for the purpose of taking the Intoxilyzer 5000 at the booking center, correct? A Correct, sir. Q When you were at the scene, did you tell her where she was going and what the purpose of going to the booking center was? A I told her she was being transported for processing and there I would read her the chemical test form. Q So you told her on the way that you were going to read this chemical test warning to her? A Correct. Q As I understand it, at the booking center you requested that there be a taping done at the time when you told her the rights under the DL-26, correct? A Yes, sir. Q I think you told the agent that was in charge that you wanted it to be videotaped? A Yes, sir. Q A Did you know whether they videotaped it? I am assuming they did, but I'm not the 24 operator of the videotape. 25 Q But you specifically requested the agent in 10 4-lr ,^"-""-', '" , ~ 1':":"1" 11 , . "T~'T^'<.'~', I'I ~~~'.:~"l ~ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ::: o o 1 2 3 4 charge of the videotaping to videotape your reading the DL-26? A Once there is a refusal, I give the Defendant an opportunity and then read it on tape, that is 5 correct, sir. Q A You had asked that it be videotaped? Yes, sir, I did. Q That was what you said occurred at 2217, that you wanted that on videotape? A That is correct. Q It was Officer Lutz that you had requested to do that? A Yes, sir. Q You don't know whether they complied with your request, but you believe they did? A I asked them to. Whether they did or not, I do not know. I haven't seen any tapes on this. Q Now, at that point, she agreed to take the test? A Q A Q Yes, sir, she did. You left before any testing was done? That is correct. Now, you received a call, then, to come back 24 to the booking center? 25 Yes, sir, it would be county communications. A 11 ft6 . """, 'YO ," 1" '''I'''~,' ~ '.' ".1~'~' ",-' , ." . TUmlHri .. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~<" '~,c - o o 1 Q When you came back to the booking center, 2 what were you told about my client's efforts to do the breath 3 samples? 4 A I was told by the agent that she wasn't 5 making a proper seal and that the machine had timed out. 6 Q Were you told that she had become ill? A Yes, sir. Q Who told you that she had become ill? A Agent Franks. Q What did Agent Franks tell you about my client becoming ill? A She stated that she was having chest pains and was requesting to go to the hospital, that she was sick. When I arrived, Agent Franks was in between the bathroom and the main door leading into the room where the Intoxilyzer 5000 machines are. Q Up to the point when you left the booking center, after having taken Ms. Karns to the booking center, had you noticed any signs of illness in the scene or in the car or at the booking center prior to you leaving? A No, sir. Q You hadn't noticed any burping, belching, regurgitation or any complaints of chest pain? A Q No, sir. When you came back, did you notice or talk 12 4~ q ,,_ v..' '," ~- -___i "'1:"',.,_. ^ '1" I". . , >~ ~ . <. .rnr'<'"liJlrU ." c o 1 to my client at all? 2 3 A Q No, sir. So you just came back and told Officer 4 Franks it was a refusal? 5 A I told her, after she gave me that 6 information, that it would be deemed a refusal. She was in 7 the bathroom. 8 THE COURT: Who is she? 9 THE DEFENDANT: I'm sorry. The Defendant 10 was still in the bathroom. The door was ajar. Agent Franks 11 was there in the opening between the two. 12 BY MR. MANCKE: ?ry ..' .c '_ ~ 13 14 the way? 15 16 17 18 19 20 21 22 Had you been told that an EMS unit was on Q A Yes, sir, I was. Q You knew at that point that she was going to the hospital? A I knew she was going to a facility. I wasn't aware of which one. 23 24 25 Q Were you told that she was complaining of chest pains? A Yes, sir. Q Did you subsequently subpoena the test results done at Holy Spirit Hospital, blood tests? MR. EDWARDS: Objection. 13 47 't" I"" -, ,',~ , -j I' - I - 1IIllllmr no 0.... . ~. o 1 THE COURT: Overruled. 2 THE WITNESS: Yes, sir, I did. 3 BY MR. MANCKE: 4 Q When you subpoenaed the test results, had 5 you filed a criminal complaint up to that point? 6 A No, sir, I had not filed it yet. 7 Q So you secured a subpoena even though there 8 was no proceeding in place? 9 A I asked for a subpoena based on information 10 received from the Defendant's husband that I received a phone 11 call advising me that there was a medical blood test done. 12 He stated to me that the blood result was a .01. I have that 13 in my records and the date and time that he called me. 14 Q Then you went and got a subpoena without 15 filing any criminal complaint? 16 THE COURT: Okay. I'll now sustain the 17 objection. I wasn't sure where you were going with this. 18 This isn't a suppression hearing, Mr. Mancke. 19 MR. MANCKE: If I could for a moment explain 20 the relevancy as I see it to this case. What occurred in 21 this case was a use of a blood test that was taken after the 22 booking center summoned an EMS unit to take her to the 23 hospital. 24 THE COURT: I'm not sure that's been used in 25 the proceeding. How do you know you haven't moved to 14 lrf A',!~. ~ , ,-} , ~ - . , . "~., - 11'"". "1'" -I" 1 - .' "1-~~ r- o o 1 suppress that on some other grounds and it in no way -- a 2 medical test doesn't satisfy the requirements of 1547(c). 3 Are you telling me that blood test that was taken at the 4 hospital is going to be used as evidence in the criminal 5 case? 6 MR. MANCKE: I'm telling you it already has 7 been made part of the criminal case by an affidavit filed by 8 this officer for probable cause to arrest. 9 THE COURT: That's not what I asked you. I 10 asked you is that going to be used at the trial in this case. 11 MR. MANCKE: I don't assume there's going to 12 be a trial in the criminal case. I'm not certain how to 13 answer that question. We've applied for the Accelerated 14 Rehabilitative Disposition Program. What I'm looking at on 15 this side is that the Commonwealth, knowing that my client 16 was taken from the booking center to the hospital, then 17 subpoenaed the records and then used the records in the 18 affidavit. 19 THE COURT: Okay. What might be relevant in 20 this case is if your client was physically unable to give 21 breath and yet was physically able to give blood and did 22 that, and that's certainly important, if that's the scenario, 23 but not -- my understanding of the law is that may very well 24 be irrelevant. 25 MR. EDWARDS: Your Honor, if a blood test 15 In u,o,,__ ,1 '"-, 1"('11' ,', -I,..' ,'\ ,- .0 ""'1 '1 .~~'7-1<"' o o 1 was taken for medical purposes, the law is clear that's 2 irrelevant for this purpose. Also in terms of what the 3 THE COURT: I understand that, Mr. Edwards, 4 but if she's physically incapable of giving the breath but 5 physically capable of giving blood, isn't that a factor to be 6 considered? 7 MR. EDWARDS: No, it isn't, Your Honor, not 8 unless the officer, in his discretion, asked for a blood 9 test, and there's no evidence that that happened in this 10 11 case. THE COURT: Let me back up. One of the 12 elements you have to prove, unless I'm mistaken, is that she 13 had to be physically capable of giving breath. 14 MR. EDWARDS: No, Your Honor, that's not one 15 of our elements. That is a burden -- once I meet my -- 16 THE COURT: Right. You meet your element. 17 If I find as a fact that she was physically incapable of 18 giving a breath test because of her health condition, then 19 the suspension is invalid. 20 MR. EDWARDS: Also, there's a second part to 21 that. She has to notify the officer or the Breathalyzer 22 operator of that so that they can offer her this other test. 23 As Your Honor will see when we play the videotape, that never 24 happened. She never told anyone that she was sick prior to 25 the taking of the breath test. Our case is strictly based 16 Do :P~'n""" .'"~" _~,.~_".~", "'.~,~ -t~. ~, 1" !~ - -I 1- """ntnrILI!1 . o o 1 upon the request for breath and the refusal to provide the 2 breath. 3 THE COURT: I understand the issues. We 4 will sustain the objection at this point in time. Let's move 5 on. 6 BY MR. MANCKE: 7 Q On the form that you have as Commonwealth 8 Exhibit No.1, it indicates that you were requesting a 9 chemical test of breath. You're the one that chose that it 10 would be a breath test, am I correct? 11 A Yes, sir. 12 Q At the point when you left her there, you 13 saw absolutely no sign of her being ill or complaining of any 14 pain of any kind? 15 A No, sir. 16 Q It was only after she attempted to take the 17 breath test that she was complaining of the chest pains and 18 eventually was vomiting and was taken by the EMS unit to the 19 Holy Spirit Hospital? 20 A Once I left, sir, I don't know what was said 21 or done at the booking center. 22 23 I'm talking about what you were told. I was told, yes. Q A 24 Q Then you were brought back by the agent and 25 asked what do you want to do about this, am I correct? 17 ",""'. ~ ,.";"," ~ 11'.0- . "1'1. ., ,," .- 6-1 ''tT ~'-'" o o 1 2 3 A Q A Yes, sir. Then you said it's going to be a refusal? Based on the information that the operator 4 gave me, yes. 5 Q At no point did you offer to my client the 6 opportunity to take the breath test again or to take a blood 7 test as an alternative? 8 A That is correct, sir. I was more concerned 9 with her well-being at the time when I was told about chest 10 pains. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -,~" , MR. MANCKE: That's all I have. THE COURT: Redirect? MR. EDWARDS: Very shortly, Your Honor. REDIRECT EXAMINATION BY MR. EDWARDS: Q One of Mr. Mancke's earlier questions concerned the reading of the chemical test warnings. You testified you did read them. Do you know whether they were recorded on the videotape or not? A No, sir, I don't. Q You had asked that they be recorded, is that correct? A Q Yes, sir. But you haven't seen the videotape, so you 25 don't know? 18 6~ , F. ",I '1''1 -, . ~", , , . r ' "'. " 1'- ~ ~. ~, .~~." o o 1 2 3 4 5 6 7 8 9 10 A I haven't seen the tape. THE COURT: Am I going to see the videotape? MR. EDWARDS: Yes, you are, Your Honor. THE COURT: It will probably sink in one way or the other when I see it, won't it? MR. EDWARDS: Yes, Your Honor. THE COURT: Well, let's get to it then. MR. EDWARDS: I have no further questions, Your Honor. THE COURT: Any further cross of this 11 witness? 12 13 14 15 16 17 18 MR. MANCKE: None. THE COURT: Thank you, Officer. You may step down. MR. EDWARDS: At this time, I'd like to offer Commonwealth's Exhibit 1 into evidence. THE COURT: Any objection to its admission? MR. MANCKE: No objection, Your Honor. 19 THE COURT: It's admitted. 20 (Commonwealth's Exhibit No.1 was admitted.) 21 MR. EDWARDS: With that, Your Honor, the 22 department calls the Intoxilyzer operator, Carol Frank, as a 23 witness. 24 CAROL D. FRANK 25 having been duly sworn, testified as follows: 19 53 ie' ,._",_", ,;-, ~- , " '''''-,' ,",I-,.t'--, . Ii -),..,.,,, 1 ~ '" 4 5 6 7 8 9 10 capacity? . ^"I1lr~II im^~' . "...., ?J::; ')r"~-',~,,~ o o 1 DIRECT EXAMINATION 2 BY MR. EDWARDS: 3 Q Please state for the record your full name and spell your last name. A My name is Carol D. Frank, F-r-a-n-k. Q By whom are you employed? A I work for the Cumberland County District Attorney's Office, Central Processing Department. Q How long have you been employed in that 11 12 A Q I was hired in June of 2000. Just generally, what are your duties in that 13 capacity? 14 A To process individuals that are arrested by 15 police officers, process DUIs, process criminal proceedings, 16 fingerprints, photograph. 17 18 19 20 21 22 23 24 Q Does that processing include administering a breath test? A Yes, it does, for DUI. Q Have you had any training in providing a breath test to a motorist? Yes, I have. I took my class and testing in A July of 2000. Q Have you been certified as a breath test 25 operator? 20 6i- ~~ " ", ;1,~1""'-.-'" '~~.1' 1 -!.," .'_.C' . -,- , 0 ~, i! o o 1 2 3 4 A Q A Q Yes, I have. On which machine have you been so certified? The Intoxilyzer 5000. That evening did you have occasion to come 5 into contact with Ms. Karns? 6 7 8 A Q A Yes, I did. For the record, can you just point her out? She's seated to my right, next to her 9 attorney there. 10 MR. EDWARDS: May the record reflect, Your 11 Honor, that the witness has pointed to Ms. Karns. 12 BY MR. EDWARDS: 13 Q You said you're certified on the Intoxilyzer 14 5000. What machine was in use that evening? 15 16 17 18 19 20 21 22 23 24 25 ~':';''''1 > A I'm not sure. It should be marked on the ticket which Intoxilyzer it was. Q No. I mean, what kind of Intoxilyzer was it? A Oh, I'm sorry. It was an Intoxilyzer 5000. I'm just not sure what the unit number is. Q Okay. I wasn't asking you the unit number. A I'm sorry. Q To your knowledge, then, was that Intoxilyzer 5000 properly certified? A Yes, it was. 21 fl) -".,- '" -.In' " -'I:'," "1 "j r "'o~',,>., ,..., o o Q Was it properly calibrated? A To the best of my knowledge, yes. Our technician takes care of the calibration. I don't have the copies with me, but -- Q But, to your knowledge, it was working 1 2 3 4 5 6 properly? 7 8 9 10 11 evening? . :_,~ ~, ,,' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q Yes. And was it operating properly that night? Yes, it was. Did you have occasion to see Ms. Karns that A Q Yes, I did, sir. Can you explain the circumstances under which you saw her? A She was brought in by Officer O'Donnell for DUI processing and for the breath test. Q What, if anything, happened after he brought her to you? A When he brought her in, she was seated to my left. She was observed for a 20-minute observation time, in which, during that time, Officer O'Donnell had read the implied consent to her. Q Did you overhear him reading them to her? A Yes, I did. ~" - '-I"" Q What, if anything, happened after that? 22 ~ \'1-1' . I ~ '- ~ ......,.~ '-"'r"I"iT'IJ]"""'" . '" ." , '. .,','r, ~ .~ .0-,-" o o 1 2 3 4 5 6 7 8 9 10 11 A After the 20-minute observation? Q After the 20 minutes and the warnings had been read. A Okay. I had read the warnings and then advised her we were going to do the breath test. Q Was that test, to your knowledge, videotaped? A Yes, it should have been. My partner should have ran the videotape. I haven't seen the tape, but it should have been. MR. EDWARDS: Your Honor, with your 12 permission, I'd like to play the videotape. 13 14 15 THE COURT: Any objection, Mr. Mancke? MR. MANCKE: None. THE COURT: You may play it. It that marked 16 as Exhibit 2. 17 MR. EDWARDS: I haven't marked it as an 18 exhibit, Your Honor. Actually, my intention was simply to 19 play it for Your Honor, unless Your Honor would also like to 20 have it admitted. I think the D.A. 's office wants it back, 21 is my understanding. 22 THE COURT: All right. 23 MR. MANCKE: I would just suggest that if it 24 become relevant later that, to be made part of the record, 25 that a copy be made and then that copy be a part of the 23 6"7 _,..;,"'1" k;r~"" " 1"'.1';''- . .'l o o 1 record. 2 3 that. 4 THE COURT: All right. We'll do it that 5 way. We'll refer to this as Commonwealth's Exhibit No.2 and 6 we'll agree that a copy may be made. 7 MR. EDWARDS: This is about a la-minute long MR. EDWARDS: There's no objection to doing 8 videotape, Your Honor. 9 (The videotape was played.) 10 BY MR. EDWARDS: 11 Q Agent Franks, in the videotape there was 12 someone off the screen who was talking to and administering 13 the test to Mr. Karns. Do you know who that was? 14 A That was talking in the background, that was 15 my partner, Agent Lutz. 16 Q I'm talking about talking directly to her. 17 Who was administering the test? 18 A I was administering the test. 19 Q Is the videotape we just saw a fair and 20 accurate representation of what happened that night when you 21 administered the Intoxilyzer test to Ms. Karns? 22 23 24 25 A Yes, it is. MR. EDWARDS: Your Honor, may I approach? THE COURT: You may. MR. EDWARDS: Your Honor, I would like the 24 61 :~_H __"'" d' ,~'r~,._.. -,:,,' "'__,",,' ~" ,.~,1 _I""~~ 11 ~ ~ .W' ~"~ ~, .~ o o 1 witness to take a look at a document that will be marked as 2 Commonwealth's Exhibit No.3. It hasn't been marked yet. 3 BY MR. EDWARDS: 4 Q I'll ask you to take a moment to look at 5 that. Are you familiar with that document? 6 A Yes, I am. That's the ticket that prints 7 8 9 10 11 12 13 14 15 16 17 18 out of the Intoxilyzer. Q Is that the ticket that printed out from this Intoxilyzer? A Yes, it is. Q What does it reflect as far as results from the test? A The results show all zeros. At the bottom there's an asteric -- where it says subject test, there's an asteric beside it. At the bottom, it says, deficient sample, value printed was highest obtained, which means the instrument timed out because it didn't receive any breath. Q We heard you constantly throughout the 19 videotape asking Ms. Karns to blow properly, to seal with her 20 lips. Did she ever, in fact, do that while she was taking 21 this test? 22 23 24 25 ~'"~>-<, .'~ A Q NO, she did not. Did she ever complete that breast test successfully? A No, she didn't. 25 Yi - --'-, .-.~. __,v ,~ ,--"+1":-'" "I,r F ~~. - \iF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 , 17 ,I 18 19 20 21 22 23 24 25 1.", _ ~" o o Q Did she ever complete any breath test that night successfully? A No. At that time, the tape was paused. No other test was given. Q We see on the beginning of the tape that she was sitting there and you began to give her the test. Did she tell you she was feeling ill? A No, not at all. It was after. Q After what we saw on the tape? A Yes. Q So everything that happened on that tape happened without her having said anything to you about feeling ill, is that correct? A That is correct. Q At the end of the tape there's an indication that you're contacting the officer. Was that Officer O'Donnell? A Yes, it was. Q What, if anything, happened after you contacted him? A My partner had spoke with him and advised him that she had not -- would not blow properly and what were his wishes. He stated to Agent Lutz that he was coming over to reread the implied consent form to her. Q Did he come back over? 26 ____,,_-c,,'__, . do, I ,,'1'~r < - '1-1 -.,,' ~o " ''!IiI'" 111 :"11, ! ' , " 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, he did. Q What, if anything, happened after that? A Okay. I was -- in the process of him being called and getting there, she advised me that she didn't feel well, so I took her to the rest room. I was standing partially at the doorway of the rest room when Officer O'Donnell arrived. Q What happened after he arrived? A I advised him that when I was asking her to perform the breath test she was letting air escape around the mouthpiece, and it came up a deficient sample. I advised him after that that she became ill at this point and was now vomiting and stated that she was having chest pains and would like to go to the hospital. Q Did he say anything, then, about the refusal? A He stated to me, you know, with these circumstances, to deem it a refusal. Q Did Ms. Karns ever complete a breath test properly that night? A No, she did not. MR. EDWARDS: Thank you. No further questions, Your Honor. THE COURT: Mr. Mancke. 27 ~, , , :". . ,1_ ,__ ~ _, _ ,_ _ '" <"\' , . 1.'''''',- '-j',--I "',- I' 1 T ,"-I 1nll r o o CROSS-EXAMINATION 1 2 BY MR. MANCKE: 3 Q Officer, you're familiar with the 4 Intoxilyzer 5000 breath analysis instrument operator's 5 manual, correct? 6 7 8 9 10 11 12 13 14 15 16 17 A Q That's correct. In the operator's manual what it indicates when you have a deficient sample is that there was breath blown into it but it was insufficient to cause the unit to read a proper sample, is that correct? A It doesn't necessarily have to take on any breath at all to print out a deficient sample. Q When you were observing the videotape, and that night, at no point did you explain to my client that there was a three-minute timing process that this unit has to comply with, did you? A No, I didn't tell her about a three-minute 18 time. I did advise her it was going to time-out. 19 Q But you never explained what time-out meant? 20 A I explained that it was going to be a 21 refusal if it timed out. 22 23 24 25 But what did time-out mean? Did you explain Q to my client what time-out meant? A No, I did not. Q Tell the Court what time-out means. 28 &,2 . - "'~ J_,,"IP'''''_'' " -1-r~ -I ~ . In J_'r 1 2 3 4 5 6 7 8 9 10 11 12 o o A Okay. The instrument, within a certain time period, has to receive the breath sample. Q If this unit receives a breath sample 2 minutes and 55 seconds into its time-out period, it would timeout after that sample was given, wouldn't it? A I don't understand what you're saying. If she performed the test before it timed out? Q Yes. A No, it wouldn't time-out if she performed it properly. Q A If it was done at 2 minutes and 55 seconds? I can't answer that statement because I'm 13 not sure. 14 Q You wouldn't know what that would have done, 15 what that piece of equipment would have done under those 16 circumstances? 17 A I'm not sure, no. 18 Q In addition, when you indicate that you were 19 talking to my client, you'll agree with me that you could 20 hear air going and it was going in the direction of the 21 breath test tube because some was escaping out the sides? 22 A Right. She wasn't performing a seal on the 23 mouthpiece so all of the air was escaping out around the 24 sides. 25 ~~~~ Q Well, all of it wouldn't escape out of the 29 ~~ - ~ ~"- '7 I.~ 1-" ~: , ~ ~ ~~- - THlII,rr"'" " c o 1 sides, because some of it would have gone in towards the 2 unit, would it not? 3 A Okay. There was no air going into the unit, 4 because if there's air going into the unit the unit will make 5 a tone. It was not making a tone, which meant there was no 6 7 8 9 10 into the instrument. 11 12 13 14 15 16 17 18 19 20 21 22 -'i;.~_,__ air getting into the unit itself . Q None into the mouthpiece either? A I'm not saying it didn't go into the mouthpiece. I'm telling you it didn't go through the tube Q Do you know what the setting was for this unit on that night as far as the slope detector is in that unit? A No, I don't. Our technician takes care of all that stuff. I wouldn't know. Q Did you try the unit that night before you tested my client? A A calibration check would have been done at 6:00 that evening. I'm not sure at this time if it was myself or my partner who performed the pre-test. Q And a calibration test doesn't require somebody to blow into it, does it? 23 A No, it does not. There may have been a DUI 24 prior that night. I'm not sure without looking at our log 25 sheet. 30 ~4- .' , ~--, .-"1'_ If, ~ !' ) '.-, . . "" ~- 10 11 '-<",v""", o o 1 Q Officer O'Donnell testified that while he 2 was talking to my client at 2217 hours and reading the DL-26 3 that he asked Officer Lutz to videotape the reading of the 4 DL-26 at 2217 hours. 5 A Okay. 6 Q You said you were there during the 20-minute observation of my client? 7 8 9 A Yes, I was. Q Did you hear Officer O'Donnell tell Officer Lutz to videotape at 2217 hours? A I don't recall at this time. I really don't 12 13 14 15 16 17 recall. I'm sure I heard it, but I can't sit here and say, yes, because I don't recall at this time. So you don't know whether that was done that 18 Q night or not? A Q take the test? A Q When she was read the DL-26, she agreed to No, I'm not sure. 23 24 No, not at all. A Q No belching, no tightness in the chest or 25 anything? 31 &5 , - ..," ~,_o '-1""'-- ---, -~, I ,c I" ", 1"-- - ~- fil o o 1 A No, nothing was -- I seen nothing visibly, 2 and she did not state anything. 3 Q Then she tried to perform the test, is that 4 right? 5 A That's correct. 6 Q You have a special form that the D.A.'s 7 office has given you that explains how many samples you have 8 to give and that failure to give a proper reading will result 9 in a refusal. That's a form different than the DL-26. Did 10 you ever read that form? 11 A No, I didn't. 12 Q Now, during this tape, at the very end, you 13 made some comment to my client about what was going to 14 happen. You mentioned something, the officer was coming 15 back, something to that effect. Do you recall that? 16 A I didn't even hear that on the tape. 17 Q What did you say to my client at the end of 18 the tape? 19 A Before I -- after I paused the tape or 20 before I paused the tape? 21 Q Before you paused the tape. 22 A I don't think I spoke to her. I spoke to my 23 partner. He advised me that the officer was coming back. 24 That's when I paused the tape. I said to her, after the 25 instrument timed out, I had told her, never mind, you know, 32 (t "<<<"~ ,. , " --. ,'~ , , " _'1. ,,, ~'"?' ' o o 1 that the instrument had timed out. That's when I said to my 2 partner about contacting the officer and seeing what he 3 wanted to do. 4 Q So your statement to my client was never 5 mind? 6 A Meaning -- don't blow anymore is what I 7 meant by saying never mind, because the instrument at that 8 time had timed out. 9 Q But you never explained to my client what 10 timed out meant? 11 12 13 14 15 16 17 18 19 20 21 22 A Q No, I did not. Now, after the officer came back, what happened? A the bathroom hallway. When the officer came back, I was between I was in the doorway of the bathroom and the Q Why were you there? A Because Ms. Karns was sick, and I wanted to be sure that she was okay. Q She was complaining of chest pains, dizziness and nausea? A That's correct. 23 Q The only time she did any of that was after 24 attempting these tests? 25 "llJ..," A Correct. She was sitting in the chair after 33 ~7 - ,- "'1""" .'~ 1'1 "I' ~ ,-- )~' ~~,~ ~~ o o 1 I paused the tape and stated to me she did not feel well, so 2 I took her to the rest room, which, in turn, that's when she 3 became sick. 4 Q Did she actually vomit? 5 A Yes, she did. Well, I heard -- I didn't 6 physically see it, but I could hear the regurgitation. 7 Q Is that when O'Donnell came back and said 8 it's going to be a refusal? 9 A When he came through the door, he asked me 10 what was going on. I explained to him, you know, that I 11 couldn't get a proper test from her, she was letting air 12 escape around the mouthpiece, and advised him that she was 13 sick at this point, and he told me to deem it a refusal. 14 THE COURT: Was she vomiting before he 15 arrived? 16 17 \~" , i" ",." THE WITNESS: Yes. THE COURT: She was complaining of chest 18 pains before he arrived? 19 20 21 22 23 24 25 THE WITNESS: Yes. BY MR. MANCKE: Q When the EMS people got there, you heard her indicate such things that she felt like there was a belt being pulled tight around her chest? A I recall her saying that she had tightness in her chest and that her head was spinning. 34 ~~ ,,. 1, '1 ~-~~ ,~ ~ 1""- f'" '..' -~ - ~" --'~-':r' ,..", - - - ^, r -, - o o 1 2 Q A Where was she taken then? As far as where the ambulance went, I'm not 3 sure. She was released to them from us. 4 Q In the middle of the tape there was a 5 statement suggesting to try to get ahold of the officer and 6 see what he wants to do? 7 8 A Q Correct. And mentioned even going for blood, am I 9 right? 10 A Right. I said to ask him if he wanted to go 11 for blood or what he wanted to do, because I could not get 12 her to perform the test properly. 13 MR. MANCKE: That's all I have. 14 THE COURT: Any redirect? 15 MR. EDWARDS: Very briefly, Your Honor. 16 REDIRECT EXAMINATION 17 BY MR. EDWARDS: 18 19 20 21 22 23 24 25 '.~ Q The machine times out after three minutes, is that correct? A Correct. Q So 2 minutes and 55 seconds into its cycle, there was like 5 seconds left till it timed out? A To the best of my knowledge, as long as it's before that three-minute time-out, it will take, you know, the breath. 35 (Pr " ~-, ~, --^ - ~ .~ .. '. . ~ --x '_N__ 1 Q o o At five seconds before it timed out, was 2 Ms. Karns blowing properly into the machine? 3 A No, she was not. Did she ever blow properly into the machine 5 during any of the three minutes before it timed out? 4 Q v No, she did not. MR. EDWARDS: Thank you. No further THE COURT: Any follow-up on that? MR. MANCKE: I have nothing further. My notes -- I was taking the times down on notes indicate that at 2238 is when you said Correct. So that would have been when the machine Right, the instrument timed out. So at 2235 is when she started blowing into This actually -- the diagnostic check was 22 done at 2231 hours. She attempted to blow at 2234. 6 7 A So somewhere close to the end of 2234. 24 There's only three minutes that you're given, is that right? 8 questions. 9 10 11 12 13 14 15 16 17 18 19 20 21 BY THE COURT: Q the machine. My never mind? A Q timed out? A Q the machine? A 23 Q 25 A ~, _, ~". ._" or - ,,,- --,'"" . See, I'm not -- honestly, I'm not sure. 36 70 ,- " ~?,", P , ," ,-- -, , ~'- '~nr - .-If-; "__~'~"A__.' .-, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 o o 1 Q I'm going by the tape. If you're saying 2 that it's given three minutes without regard to Exhibit 3. 3 I'm going by Exhibit 2. Looking at the videotape, it said 4 2238 the machine timed out? A Yes. Q So right around 2235 would have been when she started blowing? A Correct. Q And three minutes she attempted to blow? A Correct. Q And sometime between 2238 and 2245 is when Officer O'Donnell testified he got back on station. Sometime in that seven minutes she began throwing up and you called an ambulance? A Correct. THE COURT: That's all I have. Any follow-up based on that? MR. EDWARDS: No, Your Honor. THE COURT: Mr. Mancke, any follow-up based on that? MR. MANCKE : No, Your Honor. THE COURT: Thank you. You may step down. 23 MR. EDWARDS: Your Honor, at this time the 24 department offers Commonwealth's Exhibit 3 into evidence. I 25 would like to substitute a copy if that's all right, Your 37 7/ '" ~ ,.'.' -, "~-,,. ~ ,^ ^, C1f L o Q Honor. 1 2 THE COURT: Any objection to Commonwealth's 3 Exhibits 1, 2 or 3 being admitted? 4 MR. MANCKE: No objection. 5 THE COURT: Any objection to a copy of 6 Exhibit 3 being admitted? 7 MR. MANCKE: No objection. 8 THE COURT: 1, 2 and 3 are admitted. You 9 may replace 2 and 3 with copies. 10 (Commonwealth's Exhibit Nos. 2 and 3 were 11 admitted.) 12 MR. EDWARDS: Fine, Your Honor. I've got a 13 copy of Exhibit 3. We'll have to have a copy made of 2. 14 15 16 THE COURT: The Commonwealth rests? MR. EDWARDS: Yes, Your Honor. THE COURT: Mr. Mancke, do you wish to 17 present any evidence? 18 CLEONE P. KARNS 19 having been duly sworn, testified as follows: 20 DIRECT EXAMINATION 21 BY MR. MANCKE: 22 23 24 25 Q A Q A will you state your full name, please? Cleone patricia Karns. And your residence address? 2204 Whispering pines Drive, Marysville, Pa. 38 7J. 'w ,~, ' '--' '- ':'IL, ,'^ -",-' of"~ "'~w lll.'1;l!j~'_" --T---n o o 1 2 3 4 5 6 health at the time this incident occurred? 7 A Well, I was going to the doctors for my leg 8 because I was stumbling and falling flat on my face. She had 9 sent me to HealthSouth for rehabilitation on it, and they had 10 sent me for nerve testing. I found out I had damaged nerves 11 in my leg. That's why when I walk I stumble and fall flat on 12 my face. She sent me to Dr. Soges, who gave me evidence for 13 it that didn't help. I'm going next week to be fitted for a 14 leg brace for it. Q Your date of birth? A June 16, 1942. Q And your weight and your height? A 117 pounds, 5 foot 2. Q Can you indicate to the Court your general 15 16 17 Q A Q Were you a smoker? Yes. How long have you been a smoker? 18 A About 20 years. 19 Q On the date of this alleged incident, 20 3/21/01, can you indicate to the Court what you recall 21 occurring at the booking center? 22 A Well, I got there. I know he was - - I know 23 somebody was reading something. I don't really know what 24 they were reading, but I know they were reading something to 25 me. I do remember at some time somebody gave me a paper to 39 73 o ~,), -_'o_'~>' ' d'" ! ' r ~~'I'~ -~ ~ ,Y I"! ^" ,-, T" - ~, - ,-, . "'_~~i! --~. n~1Ii-r'w --~- - -: - -'In ll_ " o o 1 sign. I don't even think I signed my real name on it. I 2 think I signed it Sam Karns. 3 Q Is that your nickname? 4 A Yeah. 5 Q Can you tell the Court what happened when 6 you were requested to blow into the breath test device? 7 A Well, I tried to blow into it, and she kept 8 telling me I wasn't doing it right. I don't know. I don't 9 breathe out my nose. I breathe out my mouth. I don't know 10 if that caused me a problem or what. Then I remember that -- 11 I know the whole time I was sitting there, my head was dizzy 12 and I was getting sick. I started getting real confused. 13 Q Were you feeling that way before you started 14 to blow into it? 15 16 17 18 19 20 21 A Q Yes. What happened after you started to blow into it? A I was -- I was sitting there. I was dizzy. I had n Q A Did you try to blow into it? Yes. 22 Q Now, you saw the videotape. Were there 23 things that happened there that are not on the videotape? 24 A Yes. 25 Tell the Court what you recall occurring Q 40 11-..,,> ' cy_ ~-" ,.? ' '," f[-, ~", ~_""T , '- ~I!;-""'", - -1,-)' ,-, ,-, ," 711- -, ,. ':~ ~ , o o 1 2 3 ;\ :; Ei 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that does not appear on the videotape? A Well, I know she gave it to me the first time, and then the second time when she gave it to me -- she had stopped giving me the test, and she leaned over to where I was and took the mouthpiece and showed me how I wasn't making a proper seal around the end of the mouthpiece. Q Was that after the videotape that you saw here today was shut off? A I didn't see that part in the videotape at all. Q Explain to the Court, then, what happened at that point? A Well, she was showing me why I wasn't -- when I was blowing out, why it wasn't going through it. Twice they thought it did go through it because it made like a whistling sound. I said to her, did you get it? And she said no. Then she when she stopped and she showed me what I was doing wrong, which I didn't see that in the video, then she said, well, let's try it again. Then she turned around to start it again. I started to try it, and I guess the timer or something went off. She said, wait a minute till I fix this. Then at that point I heard the officer say, no, that's it. It's done. Q A Now, when was it that you became sick? After that I got real sick. 41 15 . ~, "- "Ir"-' T -4!ll4!il$,~l~ ~,~". '1'1 y" IU. ,$I"'lF_ ",~ ," - ,. ,\, o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Q Where did you go when you became sick? A I started getting sick in my stomach, and I thought I was going to throw up. She showed me where the bathroom was at. Q Did you have any chest pains at that time? A Yes, I -- I was starting to get chest pains and dizzy in the head. I felt like I had to throw up. Q Where did they take you after the officer came back? A Q A Q A They took me to the hospital. Which hospital was that? Holy Spirit. Did they take blood from you at that point? Yes. MR. EDWARDS: Objection, Your Honor. This is all irrelevant. THE COURT: Sustained. MR. MANCKE : Well, Your Honor -- THE COURT: Sustained. MR. MANCKE: Let me suggest another reason, 21 just for the record, for the Court to consider. The officer 22 has indicated that my client was under the influence, so I 23 think we ought to be able to introduce a test result that the 24 officer has that he subpoenaed to show what the reading was 25 at that point. 42 7(, ',~ ~" _ 1 ~-r' I'",~< 0"'1": ,-" -., '"'"'~ ,~ U~ o c~ 1 MR. EDWARDS: Your Honor, we stipulated that 2 the elements of Banner, the first element being that 3 Ms. Karns was arrested for operating a motor vehicle while -- 4 THE COURT: Are you saying, Mr. Mancke, that 5 maybe you shouldn't have objected on the scale of 1 to 10 how 6 drunk she was? 7 8 9 MR. MANCKE: No, not at all. THE COURT: Then I'm going to sustain the objection. 10 MR. MANCKE: My point is not that they 11 didn't have reasonable grounds. That's what I stipulated to. 12 I've never heard of a scale of 0 to 10. 13 THE COURT: I understand that. If you're 14 trying to tell me that you want to put the blood test in to 15 show that she was extremely intoxicated, that's one thing. 16 It may be relevant on whether or not she understood what was 17 going on. If you're trying to tell me that you're trying to 18 put the blood test in to show that she wasn't intoxicated, 19 that's something totally different. What are you trying to 20 tell me? 21 MR. MANCKE: Your Honor, there's two 22 reasons. I understand the Court in suggesting, my first one, 23 that there's an estoppel principle here in that the 24 Commonwealth secured the test results from the hospital. The 25 procedure was that the booking officer saw to it that my 43 77 ~h".,,-_< d~_" ' ",J'1'"'~.'" I~,,'W . '. -- 1-;'-1__'? ",-, . l T. ... -'. o o 1 client got to the hospital. The officer then learns that 2 there were blood tests taken and then uses that on the 3 criminal side. I think it's relevant to show an estoppel to 4 turn around and then say that she refused when the purpose of -- 5 6 THE COURT: But I don't know that it's used 7 on the criminal side. I don't know what happened on the 8 criminal side or what's going to happen on the criminal side. 9 MR. MANCKE: That's why I wanted to 10 introduce the exhibit, the complaint and the probable cause 11 affidavit, to show that was used. 12 THE COURT: Okay. The objection is 13 sustained. Move on. Next question. 14 MR. MANCKE: The next would be as to the 15 relevancy of any suggestion that the reason why she couldn't 16 perform the test was due to her alcoholic nature as opposed 17 to, you know, suggesting that she's highly intoxicated, her 18 degree of intoxication prevented her from blowing into it, 19 and that that made her unable to refrain from being ill. I 20 think it's relevant for that purpose. That's why I wanted to 21 show it. 22 23 THE COURT: I'm totally lost by what you just said. 24 MR. MANCKE: The suggestion being, we're 25 suggesting here today that the reason why she could not 44 7r C',.,.. ~,",,,, '-',-~-,' _",_J', ,. 1 ,"~~I' ,~, " ' , ,-,'-.1' ""I o o 1 perform the breath test is because she became ill during the 2 booking process. The suggestion may come from the other 3 side, well, her becoming ill was due to her degree of 4 intoxication, so I think it's relevant to show what her level 5 of intoxication was at the time the blood test was taken. 6 MR. EDWARDS: Your Honor, there are many 7 cases -- if I have a moment, I'll find some of them -- that 8 say that alcohol intoxication itself is not a defense. 9 THE COURT: I understand that. His point is 10 that she wants the blood test to show that she was not that 11 severely intoxicated and that her inability to blow was due 12 to her physical sickness, is that correct? 13 MR. MANCKE: That's correct. 14 MR. EDWARDS: Again, Your Honor, Ms. Karns 15 never told anybody that she was feeling ill. You saw for 16 yourself she went through that whole process without saying a 17 word about, I feel sick, anything like that. 18 THE COURT: I will hear the blood test 19 results and that's it. 20 MR. MANCKE: Your Honor, just to indicate 21 that the blood test subpoenaed by Officer O'Donnell was a .10. 22 THE COURT: That was medical blood? 23 MR. MANCKE: That was a medical blood test. 24 THE COURT: Was that blood or plasma? 25 MR. MANCKE: It was actually a serum test. 45 11 o -.""., ,- '..'u . . ,~'~~~ o o 1 I'll just wait for you to confirm that's what your test 2 results show. 3 4 5 6 7 that? THE COURT: What time was that blood drawn, Mr. Mancke? MR. MANCKE: The collection time is 0030. THE COURT: Can the Commonwealth agree to 8 OFFICER O'DONNELL: By what he said in here, 9 yes, sir. 10 MR. MANCKE: That's all I have. 11 CROSS-EXAMINATION 12 BY MR. EDWARDS: 13 Q Ms. Karns, you were drinking that night, 14 correct? 15 16 17 18 19 20 21 22 A Q A Yes. You were drinking alcohol, isn't that true? Yes. Q You stated in your testimony that you had been to the doctor because were you stumbling and falling, is that correct? A Yes. Q Aren't you aware that a person who has nerve 23 problems and stumbles and falls probably shouldn't drink at 24 all? I mean, what I'm asking is -- 25 A I didn't know that the alcohol affected the 46 go 1'~" , ~ '--' ''''I ~ ~ " , . "'11', ., 1"- ,', " ~- iI!' o o 1 nerves because they were damaged, no. My doctor didn't tell 2 me that. 3 Q You weren't aware that with the physical 4 problem you have, stumbling and falling, that consuming 5 alcohol might worsen that condition? 6 A No, I didn't really take that into 7 consideration. I'm not a drinker. I stopped in for dinner 8 and I had a drink. I had dinner and the drink, and then 9 somebody bought me another one and I didn't even finish it. 10 MR. EDWARDS: No further questions, Your 11 Honor. ,-,'1""" I ,~ _ ",'.. 12 13 14 BY THE COURT: THE COURT: Any redirect? MR. MANCKE: Nothing. 15 16 17 18 19 20 21 22 23 24 25 Q Ma'am, how long were you at the Holy Spirit Hospital? A I don't know what time it was. The ambulance sent me there. Q Were you released that night or were you admitted? A No. They called my husband to pick me up. Q What was your discharge diagnosis? Obviously, you didn't have a heart attack, did you? A No. As soon as they put me in the litter and they gave me air and covered me up, I felt a lot better 47 8/ ~~ ""I,,,, ' 11,""" [,,- - ~ - " ,,~ r' _ jjj- ,. >"~ - - -. -,"" ~ 7 8 9 10 11 12 13 14 15 16 ,.;r~.~., ,,", ,01' o o 1 going to the hospital. 2 THE COURT: Any follow-up on what I just 3 asked, Mr. Mancke? 4 MR. MANCKE: Yes, just briefly. 5 REDIRECT EXAMINATION 6 BY MR. MANCKE: Q Since this incident occurred, have you been seen by your family physician? A Yes. My doctor is Dr. Lisa Davis. Q Were you then referred to a specialist? A Yeah. I went to her and I told her what happened, and she sent me to another doctor. Q A Q A Are you now under medications? Yes. What are those medications for? Well, it's for emphysema. He put me on 17 medicine, but apparently that didn't do any good, so then he 18 gave me these things -- these inhalers I've got to do twice 19 in the morning and twice in the evening. 20 MR. MANCKE: That's all. 21 THE COURT: Mr. Edwards? 22 MR. EDWARDS: Nothing, Your Honor. 23 THE COURT: Thank you, ma'am. You may step 24 down. Do you have anything else, Mr. Mancke? 25 MR. MANCKE: Nothing other than judicial 48 g). , ~-~,~ "1'_''''' ,.-, , , ~~,~, I'T '-',I ~-~. ~L'r'T--- o o 1 notice that Holy Spirit Hospital is authorized to take serum 2 and blood testing, Pennsylvania Bulletin, volume 31, No.2, 3 January 13th, 2001, Page 191. 4 THE COURT: I will so take judicial notice 5 of that. Let me get this straight, Mr. Mancke. You're 6 conceding for purposes of this hearing that the Commonwealth 7 can use the .10 result from Holy Spirit Hospital in its case, 8 and you're saying that, because of that, this should not be 9 considered a refusal? 10 MR. MANCKE: Your Honor, the officer 11 received the test result. 12 THE COURT: Okay. But there's an argument 13 that he received it illegally; he had no right to it. 14 MR. MANCKE: There's an absolute argument 15 that he received it illegally. 16 THE COURT: So that, therefore, if he 17 received it and he did so illegally, there cannot be 18 compliance with 1547 on her part? 19 MR. MANCKE: Except that that's a 20 constitutional problem that they had in seizing the blood 21 under Commonwealth v. Shaw, and the Commonwealth would be the 22 first one to tell me that the constitutional issues have no 23 relevancy in a license suspension case. 24 THE COURT: A determination I have to make 25 is, in this case, was this lady intentionally trying to 49 ~~ --., "'-,-, '""", "_:lr,,,,,,,' C' ,1'-'l~-'- (',' f' , . ["rTH'" o o 1 2 3 4 5 6 7 8 9 10 MR. MANCKE: THE COURT: Absolutely. If you're standing there telling me, well, she gave blood, she wanted to give blood -- which I didn't hear -- but if you're standing there telling me she gave the officer the blood, they can use the blood in the 11 criminal prosecution, so be it, that's fine, it's not fair to 12 double-punish this lady, I might be thinking to myself, maybe 13 she was really trying to give breath there and not really 14 trying to beat this. They got the blood, and everything is 15 fine. But that's not what I hear you telling me. What I 16 hear you telling me is, I got blood, but they can't use it, 17 but they should be able 18 MR. MANCKE: I didn't say they couldn't use 19 it. I've already indicated that the matter is not going to 20 be contested on the criminal side. They can get the blood 21 if -- in this case, procedurally, they didn't get the test 22 result properly when they got it. That doesn't mean they 23 can't go around and get it under the inevitable discovery 24 rule and do it properly, because I think they could. I think 25 they could issue a search warrant and get it. I think 50 ~4- >:~-C='~ ,"p-' fr-, ~I'"""'_ '1"1" ,-'-, - ~^ " ~~, "" r o o 1 Commonwealth v. Jolly suggests that. 2 THE COURT: I guess what I'm saying is 3 you're confusing my meager abilities here. Are you telling 4 me that this lady is not contesting the criminal part, and 5 you're not worried about any of that, and that she tried her 6 best to give -- to comply with this? 7 MR. MANCKE: She has applied for the ARD. 8 That's the avenue that we're going to go in this. In this 9 instance, I think without her being told an explanation about 10 the time-out -- and if you notice, the booking officer 11 doesn't say when this thing concludes on the videotape that 12 this is allover. The suggestion is that there's something 13 else that's going to happen here. And even at -- I think it 14 was at the 35-minute mark there was a suggestion to see about 15 blood. That was the booking officer that was talking about 16 the blood thing. The officer knew that my client was going 17 to the hospital. Now, he says he didn't know that it was 18 Holy Spirit, but he knew that she was being transported. He 19 knew that the husband called and said that a blood test was 20 taken, and he got the test result. I just think it should 21 have been by a search warrant rather than by a subpoena. 22 THE COURT: Mr. Edwards, do you agree that 23 if I find as a fact that that lady was using her best efforts 24 to comply with the breath test and then got physically ill 25 and was, therefore, unable to comply that it's -- 51 56- -,." __Ill ..,,>,,,, , ,<_,,," - ~" , , ,~, ' , ,] -- , , ~ , - - ~"..., o o 1 MR. EDWARDS: That's not sufficient, Your 2 Honor. 3 4 THE COURT: What's not sufficient? MR. EDWARDS: She has to present competent 5 medical evidence to establish her inability to blow, and I 6 can cite cases to you that -- 7 THE COURT: You're telling me that I can't 8 use my eyes? 9 MR. EDWARDS: That's correct, Your Honor. 10 THE COURT: You're telling me that? You're 11 telling me that I can't look at that videotape and find as a 12 fact that she was using her best efforts to try to get it 13 done? 14 MR. EDWARDS: If I might cite some cases. 15 THE COURT: Cite some cases, sir. 16 MR. EDWARDS: Your Honor, I'll start with -- 17 these are all Commonwealth Court cases. It may sound unfair, 18 but this is the law. 19 THE COURT: Okay. Let's do it this way so 20 that both sides have a chance to respond. I'm going to find 21 as a fact, as I look at that tape, that she tried her very 22 best to comply with giving breath, and she was not trying to 23 defeat the breath test. I'm finding that as a fact. 24 I'm finding, as she's sitting there and I'm 25 seeing her, she appeared, to my eyes, to be nauseous and to 52 ~, -'-_l!IlIljr~,Jl'f, ~"',">-> ,., J - ,- -'-'~I "" o 1 ~, I' ,~,'~ ~r '-'" 0., " o 1 be not feeling well as she's attempting to give that test, 2 yet she said nothing. 3 I'm finding as a fact that the first test 4 stopped at 2238; and that sometime within a seven-minute 5 period she became violently ill, she began throwing up, she 6 had chest pains and had to be transported to the hospital. 7 That's the facts that I'm finding. I will 8 let you submit to me a brief that tells me, on that basis, 9 that that is a valid refusal on her part. Mr. Mancke, I'll 10 allow you to brief that particular issue. 11 MR. MANCKE: That's fine. Thank you, Your 12 Honor. 13 THE COURT: Okay. Any other facts you want 14 to argue? 15 MR. EDWARDS: Your Honor, only that -- I was 16 going to recall Officer O'Donnell to establish the time 17 between when all of this occurred and when the blood was 18 drawn. I believe Your Honor already has that information, so 19 I don't see the need to recall him for that purpose, that 20 there was about a two-and-a-half-hour delay. 21 THE COURT: The blood was drawn, sure. 22 MR. EDWARDS: That's all. I was going to 23 recall him for that, but I believe that's in the record, Your 24 Honor, so there won't be a need to do that. 25 THE COURT: I'm very interested in seeing 53 <'07 " . ~- ~~~ '-~[ "^.., ,.", ,~, ':'" ~ ~~ 'I, ';' , e' -f-"l "", ,I ,~' = "~~ - o o 1 the cases that say that I need to have Mr. Mancke present a 2 doctor to me to tell me that this lady was physically 3 incapable of 4 MR. EDWARDS: Yes, Your Honor. I can cite 5 five of them right now, but, if you like, I'll put it in 6 writing. 7 THE COURT: I'll enter the following Order: 8 "AND NOW, this 25th day of July, 2001, based 9 upon the findings of fact made after review of the evidence 10 and hearing the testimony, the parties are given 10 days 11 within which to file briefs in support of their respective 12 positions." 13 (The proceedings were concluded.) 14 15 16 17 18 19 20 21 22 23 24 25 54 gg <t'!' , '-'; ~, .p,,, -" -, < - ,~" " , -I"~ 1"1 , - , ~,..,- , T - ~ . , o o CERTIFICATLON I hereby certify that the proceedings are contained fully and aecurately in the notes taken by me on the above cause and that this is a correct transcript of . same. - ~~~"~ Official Stenographer - - - - - - -'- - - - - - - - - - - - - - -- The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. 1~llo )- . Date Edward E. Guido, J. 55 ~i ,~ ::-? ' ~ ';'.~, "-' ",' --,'-' .-,',,- , ~ I" " ,"11-, ~ , ". . I' ,,--- I'T" "fT rlilUIT . '"C <~"""" "" ("' , ) .z ..,~ ~J ~At':' CLEONE p" KARNS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V" COMMONWEALTH OF : NO" 2001-2543 CIVIL TERM PENNSYLVANIA DEPARTMENT OF TRANSPORTATION : CNIL ACTION - LAW IN RE: OPINION PURSUANT TO PARA.P. 1925 Guido. J., Jauuarv 22, 2002 AND NOW, this 22ND day of JANUARY, 2002, the reasons for our decision in this matter are fully set forth in the opinion accompanying our Order of December 13, 2001. By the DATE: ,In 10 ) Edward E. Guido, l t/lohn R Mancke, Esquire For the Plaintiff 0eorge Kabusk, Esquire For the Department of Transportation . cJJ L::;-tJJxs :sld qD :''''-"'! . '~~'-,.-"-1 f' ~, " - ,'__e:: 1;1:'" ~ - -1", r . '-, " - ,-- , . ." ~ ~-c,,-~,-,-,.~~=-~__. " llt..2<lll."" ""~-'"......~_.=~~.='"~-~......-...........~-~ -- 732755 @. CHEMICAL TESDNG WARNINGS AND REPORT OF 01089 REfUSAL TO SUBMIT TO CHEMICAL TESTING AS AUTHORIZED BY OF THE VEHICLE CODe SECTIoN 1547 NAME . ,. ,~ FlAtlTe!f b;J C UIIO/.E f? ADDRESS ":t~>': '1. -4,/VcJ' lSTATE -~ ) 6112 SEX DATE 01' IIIRTH YOHtH DAY (P 1(, C-..J. STATE ZP COllE' .' , .'- F CITY v//A r"a 17 d- S7 SOCIAL BEClJRm "UIIBER SECilON 1547. CHEMICAL TESTING WARNINGS i. Fle..... be adlI.Gd ""t you.... n.... under arra.t for driving undllr \he Innuence of alcohol or a conlrollGd 'UbsIllnCll pursuant'" ...ctIon 3731 of ~V_~. _~ 2. . ~ ...q';"'1inIi dlatyOU submit to a chemk:al",.tol 1.1 1cY:"o T'" Ibre..1h, blood or urine. OIl1cerdloou.th..chemlcalbosL) 3. Itl. my duty." 0 police officer, to inform you that H you ",Iu.e to .ubmlt'" tha chamlcal ",.t your o_dng privnalJ8 wID ba .""penclpd for a period 01 ana ",or. 4. a) Tha oon'llllllonol right. you ha"" as a criminal dahindant. cqmmonly Jcnown... the Miranda Rlghl&.lncludlnglba right to .peak with 0 '- and the rlghtlv",maIn &i1et1~ apply only 10 crlmlnel procGCU/lom: and cia no/,apply to !he _ludng pt<Xl8<Ium under Pemsylvanla'.'linpIed Conl8ntlaw. wllich I. a civil, nota criminal proceeding. ' b) You hoWl 110 right 10 ope"" I!, alawy..r, or anyona ..I.... belo", laking iii.. dlemIcaI18&l mquo&lad by Ib.. polica 01_ nor do you ha... . right 10 ",,"aln sllont whln asl<ed by the poIlce officar to submit to the chemlCOlI....L Un"" you 8ll- 10 submit to the ....t l1lqUa.18d by th.. pollce 0_ your condlet wi' be cktem&d 10. bill refusal and your operating privilege will be suspended lor one year. . c) Your ","'saito IUbmR to chemlc:all9sling under 1M Implled eon...ntlaw may"" Introduced Into evldance In a criminal proIGCUllon loraivlng whlla und<< Ille Innuance 01 alcohol or a controlled subslllnce. . . I.-rilly !hat I h.... mlld 1M above .;m;lng to th~. 1oIls~.. ~,. ti... '.iJ~'"k,n ;" Ihil~ lll'araUlIg ~iVlloll'!.~d gavelhe ";'Ok,ri.I""OP~. . nlty to submit tochomlcall8.tlng.? L" /)' . / / ~ . -2; _ / ....-, .,' SlgnBblr8 0101_". :H't;; (.,/ ~ Oat..: C> ~ 17 Jhavab&enadll.edollheabo.... . ~-'----- / . ~ ,-, / J ~~4L He? Slgnature 01 Motorist: f ~ - ~ - Date: '-.J _ ~/ _~ L ....., - - ..I Motorist mluso<llo sl;n, ..I"'r baing advl.ad. S;gnalUre o' OfIIcor: Date: AFFIDAVIT 1. The above rmtorist was placed under anast.lof' driving under the Inlluence 01 alcohol or a controlled subs.tande In violation o' Seetion 3731 of the VGh1cl<> Codo, and !hare we", raasonable grounds 10 bellew Ihalthe abova motorl.t had b98IJ drivlnll. opemUng or In ocblal physIcal control of the mav.melt of. motor vehk:f. while under lhelnf1uenot or alcohol or . con1rongd..ubllanCllt or both. or That the abovit named motorist was Involved in an accldent In which the operator or passenger of ooy vehicfe Involved or a pedestrian required treatmgnt ato rnadeal facility or was killed. 2. The above motorist wa. mquasl8d to .ubmlt to chamlealta.Ung as authorized by SocUon 1547 ollb.. Vehicle Code. 3. The abo"" motorisl was Inlonnod by . ponca o,"cer ollbe chemical test wamlnll. containad In paragraph 3 and 4 abova. 4. The above named motorisl rofused to submit 10 chemical testing. . OFFICER NOll:': Th. ,efu." to elan Ih'. fo;m I. nol a ,.ru..' 10 aubmJllo lb. chemical ,..1. You muel aun give lb. molorlal .11 opporlU-- nil, 10 "ke lhtchemlcal t..laher ...vlewlng thIs form~ II the Individual... opendnga commatclal mOlOrvehlde while havIng an, .. cohol or a contrail"" oub.lone" In lh<olr oyatam. you muo' .Iso compl..telh.. r...,.... .Ide 01 thl. IDrm. II SUBSCRlIl8l ANO SWORN 03 22 01 OfficerS/gnaM,,; ~?'...#r~~ :z: TO BEFOREWlE: UO. DAY YEAR g IS, Officer Nama: h-I/n.JJ .n;;:~;; {l b C /r't: // ~ tI.non p: rwltnl) IX: ~ lO ::z: Forward to; Oapartm"nl 01 T;ansportalion Buraau o(O,lvl>r Ucanslng P.O. Be" 2253 Harrisburg, PA 17105 COMMONWEALTH'S EXHffiIT , "7 -'- S,"'-t)l ~"1 THIS FORMI&AY BE DUPLICATED " Badgo Number: ...?.J. - c" Phone: 17/71 71'7 - 5' / {;, ( Mailing Addres. ~ I /11~-fa ../'r L&fi? 11,-/"...r.E /h 17 ~ V..? , Jurisdiction: f.;rit.1'r Jia/2E .K'1!'fr''''' Nole: Any pertinent facts not covered by the alfldavlt should be submitted on a soparate sheet Bnd attached hem to. That sheet shguld Include the name; 01 additIonal witnesses necBssary to provo the elements to whlch you have aUested. ADDIlIONAL SUPPLIES OF THIS FORM MAY BE SECURED BY COMPLETING FORMOS.SUA ,-- ." FEDERAL SIGNAL CORP. ! CMI INC INTOXILYZER - ALCOHOL ANALYZER PA MODEL 5000 SN 6~-001274 03,'/':: 1 ,'/[1 1 TEST 01 f'lGN.OST I C OK '" I F: E: L ,:,1',11< ",SUE:JECT TEST AlP E:LI"iNf::: ",SUE:,IECT TI,::::T (~IF: E:L~I~II< CM.. CHEC:f:: 1:< I F: BLI1Ni< ~':B~'iC: T I r'IE "\"',# -,'j cc:.. .:oj, . (iJala .1JIZie! # J2lJala . fH30 .IZllao . E,~ 1~1 CJ . (ita/;) ... ;', # -. ~ CL:. # ':'.1 22: ::LI, 22: 35 2,::: :::? 2c: ~ ::.8 2 c.' ~ 36' 22:3,(,3 * D'EFICIENT SAMPLE - VALUE PRINTED WAS HIGHEST OBTAINED. NO F:P I DETEC:TED -..,1_,--:-,:..., (!.t€on e. ~CLr..." SUBJECrSNAME d~6't . . TIME FIRST OBSERVED 1-0 LJJe.. fH I e.,,- INTOXIL YZER LOCATION ~11l. HMK.: ~tJ.~n~,fz. OPERATOR ADDITIONAL INFORMATION AND/OR REMARKS -fey{ R P~u.SG ~. Bfa 1-0 fr(f~dl CUMBERLAND COUNTY DUI DEPT, '.,;! ',,' ~. .-, 'c __ _ '" 1))0'1-1& VL-ol- -r; 'rn. ('{12 (')u +- . .J ) ./ 1 COMMONWEALTH'S ~IT i- S . o o COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEIDCLE & TRAFFIC LAW DIVISION RIVERFRONT OFFICE CENTER 1101 SOUTH FRONT STREET, 3RD FLOOR HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 .si ~ AUG 1 -20ot Terrance M. Edwards Assistant Counsel July 27, 2000 The Honorable Edward E. Guido Judge, Court of Common Pleas of Cumberland County Cumberland County Court House I Courthouse Square Carlisle, PA 17013-3387 Re: Karns v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Docket No. 01- 2543 Civil Term 'I Dear Judge Guido: Please accept the enclosed Brief for Respondent, which I am submitting on behalf of the Department of Transportation, Bureau of Driver Licensing. Thank you. Respectfully submitted, ::-J.~ - Terrance M. Edwards Assistant Counsel AttomeyLD. No. 25231 Enc!. Cc: John B. Manke, Esq., MANKE, WAGNER, HERSHEY & TULLY, 2233 N. Front Street, Harrisburg, P A 1711 0 jfj'~"-,, "- (--"-,, , ~, ~'~'I'''I 'I ", ,,' r,'~,' , o o v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-2543 CIVIL TERM LICENSE SUSPENSION APPEAL CLEONE P. KARNS, Petitioner COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING, Respondent BRIEF FOR RESPONDENT 'V:~ '_ '_ "''''''; ',c- ,~. _ "_"""',~"'_"_" ,_ , , rI l' ~. ~_>c , ~"..,-" ',' , . y ," o o STATEMENT OF FACTS On the evening of March 21,2001, Cleone Karns was arrested by Officer Jeffrey O'Donnell of the West Shore Regional Police Department for driving under the influence of alcohol (DUI), in violation of Section 3731 of the Vehicle Code, 75 Pa.C.S. S3731. Officer O'Donnell transported Ms. Karns to the DUI processing center for the administration of chemical testing in accordance with Section 1547(a) of the Vehicle Code, 75 Pa.C.S. g1547(a). By stipulation of the parties, it is agreed that Officer O'Donnell did have "reasonable grounds to believe," id., that Ms. Karns had been operating her vehicle while under the influence of alcohol. Ms. Karns herself admitted that she had been consuming alcoholic beverages that evening, and there is evidence from a blood test conducted at Holy Spirit Hospital that confirms this fact. At the processing center, Officer O'Donnell read the Implied Consentl warnings to Ms. Karns from a Form DL-26. After reading the warnings to her, Officer O'Donnell asked Ms. Karns if she understood them. Ms. Karns stated that she did understand the warnings, and she asked no questions of Officer O'Donnell concerning the warnings. At Officer O'Donnell's request, Ms. Karns signed the DL-26 form on the appropriate line indicating that she had "been advised of the above." Ms. Karns did not tell Officer O'Donnell that she was feeling ill, and he observed no indicia of illness. Officer 1 75 Pa.C.s. {l1547(a) & (b) is referred to as the Pennsylvania Implied Consent Law, Department of Transportation, Bureau of Driver Licensing v, Scott, 684 A.2d 539, 541 n.4 (pa. 1996), nnder which the Department is required to suspend a licensee's operating privilege for one year for refusing a police officer's request to submit to chemical testing. Id. t "~ ,', ,--' - "',' ,,-' - , o o O'Donnell then turned Ms. Karns over to the intoxilyzer operator, Agent Carol Frank, for the administration of a breath test. Officer O'Donnell left the processing center to return to his police patrol duties. Agent Frank is a properly trained and properly certified intoxilyzer operator. The Intoxilyzer@ 5000 that she was operating that evening had been properly certified for its accuracy, properly calibrated, and was operating properly. After Agent Frank explained to Ms. Karns how the breath test was going to be conducted, she initiated the testing cycle. Ms. Karns did not appear to be ill to Agent Frank, and she did not state to Agent Frank that she was feeling ill. As this Honorable Court has found as fact, Ms. Karns proceeded to make her best effort to complete the breath test properly, but was unable to do so. At Agent Frank's request, Officer O'Donnell returned to the processing center. Upon his arrival, Agent Frank advised Officer O'Donnell of what had transpired in his absence. By this time, Ms. Karns had become ill and was vomiting in a rest room. She subsequently was transported to Holy Spirit Hospital. In light of Ms. Karns' failure to complete the breath test properly, Officer O'Donnell determined that her conduct was a refusal of the chemical testing. Accordingly, pursuant to Section I 547(b)(1) of the Vehicle Code, 75 Pa.C.S. ~1547(b)(I), Officer O'Donnell properly notified the Department of Transportation, Bureau of Driver Licensing (Bureau), of Ms. Karns' refusal. Pursuant to the same section of the Vehicle Code, the Bureau suspended Ms. Karns' operating privilege for a :'- ,-~ ~~-, " ~ -~ . I)' ~_, ' " . . o o period of twelve months. It is this suspension which is under appeal in the case sub judice. +-., '~-'~ '-"- F ,_ ~""'" t.'~__", , . -""""" o o ARGUMENT MS. KARNS HAS FAILED TO SATISFY HER BURDEN OF PROOF THAT SHE WAS PHYSICAll..Y INCAPABLE OF COMPLETING THE BREATH TEST REQUESTED BY OFFICER O'DONNELL. In order to support the one-year suspension of Ms. Karns' operating privilege under 75 Pa.C.S. ;)1547(b)(1), it is necessary for the Bureau to prove that Ms. Karns (1) was arrested for operating a motor vehicle while under the influence of alcohol by a police officer who had reasonable grounds to believe that she was operating a motor vehicle while under the influence of alcohol; (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 her operating or driving privilege. 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). The Bureau stipulated with Ms. Karns as to the first element. To establish the remaining three elements, the Bureau presented the credible testimony of Officer O'Donnell and Agent Frank, and introduced into evidence as Commonwealth's Exhibit 1, a copy of the DL-26 form, as Commonwealth's Exhibit 2, a videotape recording of the breath testing cycle, and as Commonwealth's Exhibit 3, the "print out" of the ',,-~, -" ',,,, ,-, ~ ~ I, ' ,- ~~ ~ -, r-, ~i.'!, o o Intoxilyzer<1l 5000? The Bureau respectfully submits that the credible testimony of Officer O'Donnell and Agent Frank, together with the physical evidence that was properly admitted, satisfied itsprimafacie burden of proof. The only issue being contested by Ms. Karns is whether her failure to complete the breath test properly was a refusal. Whether a licensee has refused a request for chemical testing is a question of law based upon the facts as found by the trial court. Department of Transportation v. Renwick, 669 A.2d 934 (Pa. 1996); Lemon v. Department of Transportation, Bureau of Driver Licensing, 763 A.2d 534 (Pa. Cmwlth. 2000); Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456 (Pa. Cmwlth. 2000); Purcell v. Department of Transportation, Bureau of Driver Licensing, 689 A.2d 1002 (Pa. Cmwlth. 1997). "It is well established that anything less than a licensee's unqualified, unequivocal assent to submit to chemical testing constitutes a refusal under ~1547 of the [Vehicle] Code. Department of Transportation, Bureau of Traffic Safety v. Mumma, 79 Pa.Cmwlth. 108, 468 A.2d 891 (Pa.Cmwlth.1983). A refusal need not be expressed in words, but can be implied from a motorist's actions." Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420, 423 (Pa. Cmwlth. 1998). Accord, Renwick. In order to provide a sufficient breath sample, 67 Pa. Code ~77.24(b)(1) requires "[t]wo consecutive actual breath tests, without a required waiting period between the two tests." As a matter of law, Ms. Karns' failure to provide a sufficient breath sample 2 With the Court's permission, copies of Exhibits 2 and 3 have been substituted for the originals. ~L , , "~^11" ,~" ~. r , 0" , i' o ^ u constituted a refusal to submit to the requested chemical testing. Todd v. Department of Transportation, Bureau of Driver Licensing, 723 A.2d 655 (Pa. 1999); Department of Transportation, Bureau of Driver Licensing v. Boucher, 691 A.2d 450 (Pa. 1997); Lemon, 763 A.2d at 538; Bridges, 752 A.2d at 459 n.4; Mueller v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa. Cmwlth. 1995), appeal denied, 665 A.2d 471 (Pa. 1995); Appeal of Budd, 442 A.2d 404 (Pa. Cmwlth. 1982). Even a good faith effort to perform the test is irrelevant in determining whether Ms. Karns refused to submit to the test. Lemon, 763 A.2d at 538; Bridges, 752 A.2d at 459 n.4; Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (Pa. Cmwlth. 1996); Yi v. Department of Transportation, Bureau of Driver Licensing, 642 A.2d 625 (Pa. Cmwlth. 1994); Department of Transportation, Bureau of Driver Licensing v. Kilrain, 593 A.2d 932 (Pa. Cmwlth. 1991), appeal denied, 600 A.2d 541 (Pa. 1991). Accordingly, the Bureau respectfully submits that the credible testimony of Agent Frank, the testing process observed by this Honorable Court in the videotape (Commonwealth's Exhibit 2),3 and the intoxilyzer print out4 clearly establish Ms. Karns' refusal of chemical testing. Once the Bureau satisfied its burden of proof, the burden shifted to Ms. Karns to prove, by competent evidence, either that her refusal was not a knowing and conscious 3 See, e.g., Hinkel v. Department of Transportation, Bureau of Driver Licensing, 715 A.2d 556, 557 (Fa. Cmwlth. 1998); Hatalski v, Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386, 388 (Fa. Cmw1th. 1995). 4 See, e.g., Pappas v, Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504, 508 CPa. Cmw1th. 1996). ~')-I)",,-, " '1:'''''/r',_n',,,ro-' 'f,'_-P ""i"'''''I['', 1"1 - o o . decision or that she was incapable of properly completing the test. Boucher; Lemon; Bridges. Where a licensee's inability to physically perform a particular chemical test is not obvious, the licensee is required to establish such physical inability through the presentation of competent and unequivocal medical evidence. Lemon; Bridges; Hatals/d v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386 (Pa. Cmwlth. 1995); Department of Transportation, Bureau of Driver Licensing v. Holsten, 615 A.2d 113 (Pa. Cmw1th. 1992). Ms. Karns did not claim, nor did she attempt to prove, that her refusal was not a knowing and conscious decision. Accordingly, Ms. Karns was required to prove, by competent medical evidence, that she was incapable of completing the breath test. Lemon; Bridges; Pappas; Mueller; Department of Transportation, Bureau of Driver Licensing v. Wilhelm, 626 A.2d 660 (Pa. Cmwlth. 1993). Ms. Karns' own lay testimony is not competent evidence to support her burden of proof. Department of Transportation v. Gross, 605 A.2d 433 (Pa. Cmwlth. 1991); Department of Transportation v. Berta, 549 A.2d 262 (Pa. Cmwlth. 1988); Department of Transportation, Bureau of Driver Licensing v. Cochrane, 538 A.2d 614 (Pa. Cmwlth. 1988), appeal dismissed, 565 A.2d 159 (Pa. 1989); Department of Transportation, Bureau of Traffic Safety v. Jones, 395 A.2d 592 (Pa. Cmwlth. 1978). Additionally, Ms. Karns did not tell either Officer O'Donnell or Agent Frank that she was feeling ill, either before or during the administration of the breath test. Both testified that she did not appear to them to be ill, and neither observed any indicia of illness, e.g., belching, burping, etc. Of course, both were in immediate contact with Ms. f_ ~.' ~, '~'_""'~', ", ,',_",",',' " 1,-'" --, I-I' -,- ,"_" . o o Karns and therefore in an excellent position to observe both her appearance and any obvious indication of illness. Neither observed any obvious signs of illness prior to the time that the Intoxilyzer@ 5000 "timed out." In such circumstances, even if Ms. Karns did have competent medical evidence of her inability to complete the breath test properly (which she did not), it would not have been admissible, because she did not inform either Officer O'Donnell or Agent Frank of her illness. Finney; Hatalski. The reason for this notification requirement is to permit the arresting officer the opportunity to request a different test, e.g., one for blood or urine. Hatalski, 666 A.2d at 390. Notwithstanding the absence of notification, even if Ms. Karns had been permitted to present competent medical evidence concerning her physical condition, this evidence would have had to show unequivocally that she was physically incapable of completing the breath test. See, e.g., Bridges ("Mere difficulty in breathing does not mean that Licensee did not have the lung capacity to perform the test even with the acknowledgement of his medical condition." Id., 752 A.2d at 460). Moreover, such medical evidence also would have to establish unequivocally that Ms. Karns' admitted alcohol consumption did not contribute to her inability to complete the breath test. See Dailey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 772 (Pa. Cmwlth. 1999); Hinkel v. Department of Transportation, Bureau of Driver Licensing, 715 A.2d 556 (Pa. Cmwlth. 1998); Plotts v. Department of Transportation, Bureau of Driver Licensing, 660 A.2d 133 (Pa. Cmwlth. 1995); Department of Transportation, Bureau of Driver Licensing v. Monsay, 596 A.2d 1269 (Pa. Cmwlth. 1991); Appeal of q!~,,,,.,,,W.Tr, ',", ''f'~''-," _' ,--' " Ir >r\"" ~ 1 ~ ' " r - ""1 o o . . Cravener, 580 A.2d 1196 (Pa. Cmwlth. 1990); Department of Transportation, Bureau of Trcif.fic Safety v. Andrews, 505 A.2d 412 (Pa. Cmw1th. 1986). Cf Wilhelm (In a refusal case, the licensee's personal physician "never unequivocally stated that [the licensee's] condition affected his ability to perform the test." Id., 626 A.2d at 661. Although the licensee did present expert medical testimony that he was suffering with a 50% loss of breathing capacity, this evidence did not satisfy his burden of proof that he was incapable of performing the breath test properly. "Such a conclusion cannot be made without knowledge of the specific amount of breathing capacity required to perform the test properly." Id. at 663). Ms. Karns offered evidence to establish the level of her intoxication at a time several hours after she had failed to complete the breath test successfully. If this evidence was offered to establish her inability to complete the breath test due to her prior consumption of alcohol, it is legally insufficient. Mumma; Department of Transportation, Bureau of Traffic Safety v. Potter, 545 A.2d 979 (pa. Cmw1th. 1988); Ascolese v. Department of Transportation, 522 A.2d 1204 (Pa. Cmw1th. 1987) (en bane); Department of Transportation, Bureau of Driver Licensing v. Miller, 521 A.2d 995 (Pa. Cmw1th. 1987); Department of Transportation, Bureau of Traffic Safety v. Wall, 520 A.2d 133 (Pa. Cmwlth. 1987); Department of Transportation, Bureau of Driver Licensing v. Andreoli, 507 A.2d 919 (Pa. Cmwlth. 1986); Walthour v. Department of Transportation, 458 A.2d 1066 (Pa. Cmwlth. 1983). It has been intimated that (1) the blood test conducted at the hospital after Ms. Karns' refusal of the breath test satisfied her obligation under 75 Pa.C.S. ~1547(b)(1), \'" ,- - .,-,-~" '~',,,, ' C< ,I:"'>', . ,- . o o . and (2) activities undertaken by Officer O'Donnell after the refusal (to obtain a blood sample for criminal prosecution for DUI under 75 Pa.C.S. g373 1 (a)) somehow impact the proceedings in this matter. Neither intimation is accurate. Any blood sample obtained by Officer O'Donnell for use in a criminal proceeding does not negate Ms. Karns' prior chemical test refusal. Podgurski v. Department of Transportation, Bureau of Driver Licensing, 654 A.2d 232 (Pa. Cmwlth. 1995); Lane v. Department of Transportation, 556 A.2d 12 (Pa. Cmwlth. 1989); Department of Transportation v. Murdock, 512 A.2d 100 (Pa. Cmwlth. 1986); Department of Transportation, Bureau of Traffic Safety v. Emory, 498 A.2d 26 (Pa. Cmwlth. 1985). Moreover, criminal proceedings for driving under the influence are unrelated to the issues in a civil suspension proceeding. Vasiliades v. Department of Transportation, Bureau of Driver Licensing, 578 A.2d 981 (Pa. Cmwlth. 1990); Croissant v. Commonwealth, 539 A.2d 492 (pa. Cmwlth. 1988), appeal denied, 549 A.2d 138 (Pa. 1988). "[T]he license suspension proceedings, being civil in nature, are separate and apart from the criminal proceedings." Emory, 498 A.2d at 29. Where the driver refuses to take a [chemical] test, that refusal violates a condition for the continued privilege of operating a motor vehicle and is properly considered as a basis for suspension of that privilege. The driver's guilt or innocence of a criminal offense is not at issue in the license suspension proceedings. The only fact necessary to the administrative determination is the driver's refusal to comply with the [chemical test] request after being taken into custody. Department of Transportation v. Wysocki, 535 A.2d 77, 79 (Pa. 1987). (Emphasis added). With regard to any potential criminal prosecution (or even acceptance into Accelerated Rehabilitative Disposition for DUI under 75 Pa.C.S. g1552), a county fA,,__ ,_ __," ~_ ,. , ",' I;'" -" I .~ " " . o o .. District Attorney does not represent the interests of the Bureau and cannot bind the Bureau. See, e.g., Pat's Auto Sales v. Department of Transportation, Bureau of Motor Vehicles, 744 A.2d 355 (Pa. Cmw1th. 2000), appeal denied, 759 A.2d 389 (Pa. 2000); Hunsicker v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 84 (Pa. Cmw1th. 1995); Yi v. Department of Transportation, Bureau of Driver Licensing, 646 A.2d 603 (Pa. Cmwlth. 1994); Commonwealth v. Pullano, 625 A.2d 1226 (Pa. Super. 1993), appeal denied, 639 A.2d 30 (Pa. 1994); Crawford v. Commonwealth, 582 A.2d 95 (Pa. Cmwlth. 1990); Department of Transportation v. Crawford, 550 A.2d1053 (Pa. Cmwlth. 1988); Department of Transportation, Bureau of Driver Licensing v. Lefever, 533 A.2d 501 (Pa. Cmwlth. 1987). By the same token, a police officer (like Officer O'Donnell) cannot bind the District Attorney. See Commonwealth v. Stipetich, 652 A.2d 1294 (Pa. 1995). The District Attorney's power to prosecute cannot be restricted by the actions of municipal police officers who might, in any given case, deem it worthless or-ill advised to prosecute. While the police exercise, as a practical matter, a certain discretion in deciding whether to make an arrest, issue a citation, or seek a warrant, the ultimate discretion to file criminal charges lies in the district attorney. Police officers have no authority to enter agreements limiting the power of the district attorney in this regard. Stipetich, 652 A.2d at 1295. Accordingly, for the foregoing reasons, the Bureau respectfully submits that Ms. Karns has failed to satisfy her burden of proof that her failure to complete the breath test properly was due to physical inability. For this reason, her appeal should be dismissed by this Honorable Court. '.~, ~~-"',-, '-,-"-y'p",,,~,. "",,",0,.; "':""'''''''1,'' r~ <. r-~~ 1- o . . " /-~~ ",: .'~,"- ~ -~','~' .,,')' , -, 14' -. o Respectfully submitted, ~L Terrance M. Edwards Assistant Counsel Office of Chief Counsel Department of Transportation Attorney J.D. No. 25231 ''T <,-, . . o 0 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL VEmCLE & TRAFFIC LAW DMSION RIVERFRONT OFFICE CENTER 1101 SOUTH FRONT STREET, 3RD FLOOR HARRISBURG, PENNSYL V ANlA 17104-2516 (717) 787-2830 AUG 3 ;.. 2001 Terrance M. Edwards Assistant Counsel August 1, 2000 The Honorable Edward E. Guido Judge, Court of Common Pleas of Cumberland County Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 Re: Karns v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Docket No. 01- 2543 Civil Term Dear Judge Guido: I am enclosing a copy of a decision reported today by Commonwealth Court, Post gate v. Department of Transportation, Bureau of Driver Licensing, Docket No. 2242 C.D. 2000. As I believe this decision supports many of the arguments made in the Bureau's previously submitted brief, I felt that I should bring Postgate to your attention. Thank you for your consideration in this matter. Respectfully submitted, ~i~' Terrance M. Edwards Assistant Counsel Attorney LD. No. 25231 Ene!. Cc: John B. Manke, Esq., MANKE, WAGNER, HERSHEY & TULLY, 2233 N. Front Street, Harrisburg, P A 17110 i '_~_d ~, _ <" ","""- , '~~'II" .,.. """ v o AUG 3 - 200~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald D. Postgate, Appellant v. No. 2242 C.D. 2000 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing Submitted: March 9, 2001 BEFORE: HONORABLE JOSEPH T. DOYLE, President Judge HONORABLE DORIS A. SMITH, Judge HONORABLE llM FLAHERTY, Senior Judge OPINION BY PRESIDENT JUDGE DOYLE FILED: August 1, 2001 Ronald D. Postgate (Licensee) appeals an order of the Court cf Common Pleas of Indiana County, which denied his statutory appeal from a one-year suspension of his driver's license imposed by the Department of Transportation, Bureau of Driver Licensing (DOT). The suspension was imposed for refusing to submit to chemical testing in accordance with Section l547(b)(1) of the Vehicle Code, 75 Pa. C.S. S1547(b)(1).1 1 Section 1547(b)(1) of the Vehicle Code provides: (b) Suspension for refusal.- (Footnote continued on next page...) tj],~,,~, ' it . "~, ,__,,,,__,,y_.,, d, , '" ~, ,,"".... ".", " o o On September 26, 1999, James Bateman, a Pennsylvania State Trooper, stopped Licensee for driving a motorcycle without wearing a helmet. Trooper Bateman noticed an odor of alcohol emitted by Licensee, and he observed that Licensee's eyes were red, bloodshot, and glassy. Licensee admitted to Trooper Bateman that he had been drinking alcohol. The Trooper then asked Licensee to submit to field sobriety tests, and Licensee agreed. The Trooper administered the tests (reciting the alphabet, the one leg stand, and the walk-and-tum test), which tests Licensee was unable to perform. Trooper Bateman then placed Licensee under arrest for driving under the influence of alcohol and transported him to the Indiana State Police Barracks for chemical testing. At the barracks, Licensee was advised of the implied consent law and asked to submit to a chemical test of his breath. Licensee initially agreed to the test, but, the Trooper who conducted the test, Trooper Rummel, a certified operator of the Intoxilyzer 5000 breath testing machine, noted that Licensee was pretending to blow into the mouthpiece of the device, inflating his cheeks to make it appear that he was blowing. Licensee failed to produce a sufficient breath sample for testing and, as a result, Trooper Rummel determined that Licensee refused the test. (continued... ) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. 75 Pa. C.S. (l1547(b)(1). 2 """"""~"'~~-"f "-' . , C'I ... o Subsequently, DOT notified Licensee that his driver's license was suspended for one year and Licensee appealed the suspension to the Common Pleas Court. At the hearing in Common Pleas, DOT presented the testimony of Troopers Bateman and Rummel, who testified to the facts recited above. Further, with regard to facts surrounding the breath test, Trooper Rummel testified that he explained the breath testing procedure to Licensee, but Licensee behaved as follows: [Licensee] started to give his first sample and he was not doing it properly. He was blowing into the machine for a second or two and stopping. He was pretending that he was blowing into the machine with putting his lips around the mouthpiece and just inflating his cheeks to make it look like he was blowing. I told him several times that he wasn't blowing, that I couldn't hear it. I also told him that when he's blowing properly, that the machine emits a tone, a high pitched tone. If I cannot hear the tone, then the machine was not receiving any air from his lungs. (Notes of Testimony (N.T.) at 29.) Trooper Rummel specifically testified that he never heard the machine emit the tone that indicates air is being blown into the machine.2 Trooper Rummel also testified that the breath-testing machine was properly functioning and certified for accuracy. 2 The printout from the machine indicated that Licensee provided an "insufficient sample" of his breath. 3 ';; -~" ,- <" " 1_" ' , ,T ". "" r , o o Licensee testified that he did not refuse the test, complied with the instructions of Trooper Rummel, and that he blew into the machine. The Common Pleas Court accepted the testimony of Trooper Bateman and Trooper Rummel as credible, and rejected Licensee's testimony. Based on the testimony of the Troopers, the Court concluded that Licensee "did not exert total conscious effort and thereby failed to supply a sufficient breath sample and the Court further fmds the testimony of Trooper Curtis Rummel to be sufficient to prove calibration of the breathalyzer machine." (Common Pleas Court's opinion at 1.) Accordingly, the court dismissed Licensee's appeal and, this appeal followed. On appeal, Licensee contends the Common Pleas Court erred in dismissing his appeal, because the Troopers did not provide credible testimony regarding Licensee's refusal and did not provide information regarding the accuracy and calibration of the Intoxilyer 5000 breath testing machine. To suspend a licensee's driver's license under Section 1547(b) of the Vehicle Code, DOT must prove that (1) the licensee was arrested for driving while intoxicated and that the arresting officer had reasonable grounds to believe that the licensee was driving while intoxicated; (2) that the licensee was requested to submit to a chemical test; (3) that the licensee refused the test; and (4), where the issue is raised, that the licensee was warned that refusing the test would result in a suspension. Department of Transportation, Bureau of Driver Licensing v. Pestock, 584 A.2d 1075 (pa. Cmwlth. 1990), petition for allowance of appeal denied, 528 Pa. 619,596 A.2d 801 (1991). 4 _TIo- ._ f, '~',___" ..,"'~, . '" ,_r" I~'n ~rT" /'-.. ~~j o Where a licensee fails make a total conscious effort to take a breath test, and thereby fails to provide a sufficient breath sample, such conduct is tantamount to refusing the test. Pappas v. Department of Transportation, Bureau of Driver Licensing, 669 A.2d 504 (pa. Cmwlth. 1996). Failure to provide a sufficient breath sample constitutes a refusal even where the licensee made a good faith effort to comply with the test. Id. In Pappas, we identified two methods that DOT may utilize to establish that a licensee refused chemical testing by failing to provide sufficient breath samples. First, we stated that: A refusal is supported by substantial evidence where the Breathalyzer administrator testifies that the licensee did not provide sufficient breath. ... If DOT establishes refusal by utilizing the testimony of the administering officer, it need not prove that the machine was in proper working condition at the time of the test. . .. That is, once DOT establishes refusal, the operability or suitability of the Breathalyzer is not at issue. Pappas, 669 A.2d at 508 (citations omitted) (emphasis added). Second, DOT may also rely on the breath machine printout: DOT may establish refusal under these circumstances by presenting a printout form from a properly calibrated Breathalyzer indicating a deficient sample. In this situation, proper calibration may be proven by documentary or testimonial evidence. Id. at 508 (citation omitted). In the instant case, the Common Pleas Court found the testimony of Trooper Bateman and Trooper Rummel credible and, based on that testimony, concluded 5 -I:ji~ ,",!,_~,",,,,,,,,,__ "' " -- ~"""'II,-' r-r ~ ~"\ l",) o that Licensee did not exert a total conscious effort to complete the breath test and failed to provide a sufficient sample for chemical testing. While Licensee argues that the court erred in accepting the Troopers' testimony,3 the law is "settled beyond question that detenninations as to the credibility of witnesses and the weight assigned to their testimony is solely within the province of the fact finder . . . ." Millili v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 111, 113 (pa. Cmwlth. 2000). (Emphasis in the original.) Because questions of credibility are for the trial court to resolve, and not this Court, we may not reverse the Common Pleas Court's order on the ground that it erroneously accepted and relied upon the testimony of Trooper Bateman and Trooper Rummel. Id. DOT clearly sustained its burden of proof under Pappas, demonstrating via the Troopers' testimony that Licensee refused the test by pretending that he was blowing into the machine but failing to provide a sufficient breath sample. Because of Licensee's refusal, DOT was not required to establish that the Intoxilyzer was in proper working order at the time of the test. Even if such proof was required, Trooper Rummel credibly testified that the Intoxilyzer was calibrated for accuracy and was functioning properly when Licensee was tested. That testimony is sufficient under Pappas to prove proper calibration. 3 Licensee asserts that the Troopers' testimony "is so rife with inconsistencies and mistakes that it strains the bounds of believability to a degree that it cannot be accepted as credible" (Licensee's brief at 9), and "based on the . . , inconsistencies that this case has exhibited, [Licensee] asks the Court to sustain the Appeal." (Licensee's brief at 10-11.) The alleged inconsistencies involve (I) whether Licensee was wearing a helmet when stopped by Trooper Bateman, (2) the "sudden" end of Licensee's cooperation when the breath test was initiated, and (3) Trooper Rummel's handling of the printout from the Intoxilyer. 6 'JT'~ .." ^"< " '-'T"'~'lr'" I r " ~ ,~ \ : '<",;,',_P o DOT seeks attorney's fees under Pa. R.A.P. 2744 on the ground that Licensee's appeal is frivolous. Specifically, DOT points out that Licensee "makes only a single, wholly implausible argument in his appeal, i.e., that [the Common Pleas Court Judge] should have found him credible and both Trooper's incredible." (DOT's brief at 24.) DOT argues that, because Licensee's appeal merely challenges the court's credibility fmdings, it lacks any basis in law or in fact and is frivolous. Finney v. Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420 (pa. Cmwlth. 1998). We must agree with DOT. Basing an appeal solely on facts contrary to those found by the trial judge has been held to be frivolous. DiCola v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 398 (pa. Cmwlth. 1997); Morrell v. Department of Transportation, Bureau of Traffic Safety, 575 A.2d 171 (pa. Cmwlth. 1990). Here, Licensee's entire argument is nothing more than an attack on the Common Pleas Court's credibility determinations. Further, this matter is absolutely controlled by Pappas, under which DOT clearly sustained its burden of proving that Licensee refused the breath test. Therefore, we will grant DOT's request for attorney's fees. Accordingly, the Common Pleas Court's order is affirmed. This case is remanded to the Common Pleas Court for a determination of reasonable attorney's fees. JOSEPH T. DOYLE, President Judge Judge Smith dissents on the counsel fees issue. 7 "","-~j-" " "-' ^'~, ~-- \ >>'^ . " .', ~,~ .<-, , , 1'- " 1 ilF..,i\lill' o IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald D. Postgate, Appellant v. No. 2242 C.D. 2000 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing ORDER NOW, August 1, 2001 , the order of the Court of Common Pleas of Indiana County in the above-captioned matter is hereby affirmed. Pursuant to Pa. R.A.P. 2744, attorney's fees are granted to the Department of Transportation, and this case is remanded to the Court of Common Pleas of Indiana County for a determination of said reasonable attorney's fees. Jurisdiction relinquished. JOSEPH T. DOYLE, President Judge -,~~I'1'1!l:ifj\~".,..,,., ,_, Ph., I';' ~ ' ,,, , ~,.,"- I , o o . AU6 2':' 200tt ClEONE P. KARNS Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v, : NO: 01-2543 CIVil TERM COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Respondent PETITIONER'S MEMORANDUM IN SUPPORT OF LICENSE SUSPENSION APPEAl The unique facts of the instant case have been recognized by the court in its findings. The court found as a fact that the videotape shows Ms. Karns "to be nauseous and to not be feeling well as she's attempting to give the test." The court also found that "she became violently ill, she began throwing up, she had chest pains and had to be transported to the hospital." The testimony and the video support those findings, The court should reverse the license suspension. It must be noted that during the testing process, the booking officer specifically requested that Officer O'Donnell be called to see about a blood test. In addition, Officer O'Donnell came back to the center and said he was considering it a refusal. At that time, Officer O'Donnell knew that Ms. Karns became ill and was in the bathroom throwing up. The Department has suggested that Ms. Kams did not advise the booking officer or police officer of her condition. In this case, the condition was obvious and she did, in fact, go to the bathroom (with permission) where she was throwing up when Officer O'Donnell came back and deemed the events as a refusal. The suggestion by Penn Dot, that Ms. Karns did not inform O'Donnell or Booking Agent Frank of her illness defies reason, the facts and logic. Ms. Karns became violently ill and was "',,~,.., , , -, ", -, ,- -- - ~ "I ~.' ". ""","" I': "<c ' ~~ ,,~~, J~l ~..y, -"-, .:: o o throwing up and O'Donnell and Frank knew it. She was given permission to go to the bathroom by Frank who later called the ambulance. Penn Dot's brief suggests: The reason for this notification is to permit the af1esting officer the opportunity to request a different test, e.g., one for blood or urine. Hatalski, 666 A.2d at 390. The testimony revealed that O'Donnell was brought back to the booking center for the exact reason of determining what he wanted to do and if he wanted a blood test. The officer knew she was sick at that time. He elected not to have a blood test done even though he knew Ms. Kams was being taken to the hospital by ambulance (due to chest pains, nausea and dizziness). A blood test was, in fact, done at Holy Spirit Hospital (an approved facility) and the result was subpoenaed by Officer O'Donnell in the criminal case, The suggestion, by Penn Dot, that the court cannot review the testimony and the videotape to reach a conclusion that the suspension is improper, is wrong. In light of the evidence and the court's findings, Penn Dot's argument, that medical testimony is necessary for the court to sustain the appeal of the motorist, is clearly in error. The law on the subject has been recently outlined in Carlin v. Penn Dot, 739 A.2d 656 (Pa.Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa, 678, 759 A2d 924 (2000). The Commonwealth Court sustained a license suspension appeal without medical testimony when the physical incapacity to perform the test was due to a need to urinate. The court, in reversing the lower court, stated: With regard to a driver's physical inability to take the test, each case must be decided on its individual facts. Department of Tram;portation Bureau of Traffic Safety v Day. 93 Pa.Cmwlth. 49, 500 A.2d 214 (1985). Medical evidence of a driver's physical 2 '^-~_"'.t ",-> ,. "1'''"-' . - '~- 'f~ 1 " ' , ]' ~" < -''''-- o o incapacity is not a per se requirement Department of TransDortation. Bureau of Driver Licensing v. Groscost. 142 Pa.Cmwlth. 36, 596 A.2d 1217 (1991). Where a driver's physical incapacity is obvious, there is no need for the driver to present medical evidence to prove it. McQuaide v. DeDartment of Transportation. Bureau of Driver Licensing. 166 Pa.Cmwlth. 683, 647 A.2d 299 (1994). In determining the obviousness of a driver's incapacity, a court does not "leave [its] common sense at home. " Id. at 302. . . . . . . It would be ludicrous to require medical evidence to prove such a physical incapacity when lay people know, without visiting a doctor, the physical effects of needing to use the bathroom when a bathroom is not available. Guided by common sense, then, we hold that Carlin was not required to present medical evidence in this case because the reason why he could not complete the breath test was obvious. The trial court erred in holding otherwise. Carlin v. Penn Dot, 739 A.2d 656 at 659, As noted in Penn Dot v. Day, 500 A.2d 214 at 214,215 (Pa.Cmwlth. 1985) (dealing with injuries): Many factors must be considered in determining whether the refusal of a driver to submit to a blood test or the breathalyzer was a knowing and conscious refusal. One of the most important is the driver's mental and physical state at the time. . . . . . . With regatd to the motorist's physical condition, each case must be decided on its individual facts. The trial judge determines the credibility of the witnesses and the weight of their testimony. Taking into consideration the appellee's physical condition, and all the attendant cilCllmstances, the evidence was substantial enough to support the trial judge's finding that the refusal was not conscious and knowing, even absent medical testimony to form a nexus between the injuries sustained and the refusal to take the test 3 '3'~'~I'_" . """'-, ., t ' ,-,I ,,, , ""-~" =- . o o See also, Gordon v. Penn Dot, 707 A.2d 1195 (Pa.Cmwlth. 1998); Penn Dot v. Groscost, 596 A.2d 1217 (Pa.Cmwlth. 1991). The testimony of the witnesses and the videotape clearly support the court's findings made at the conclusion of the instant case. As noted by now President Judge Joseph Klinefelter in Bamerv. Penn Dot, 19 D.&C.4th 523 at 527 (1993) (appeal by Commonwealth withdrawn): , . . She was emotionally distraught over the arrest and frequently distracted during most of the testing process. Our courts have long recognized that a physical inability to complete the test is a valid defense to a suspension under section 1547(b). While a motorist's bare assertion of physical incapacity is insufficient, medical evidence is not a per se requirement. Penn DOT v. Rogers. 110 Pa. Commw. 453, 532 A.2d 935 (1987); Penn DOT v Day, 93 Pa. Commw. 49, 500 A.2d 214 (1985). In this case, we believe that the Commonwealth's own evidence, the videotape, provides ample evidence to allow petitioner to meet her burden of proof in this regard. As we stated on the record at the conclusion of the hearing, we are not able to conclude in good conscience after a careful review of the videotape in evidence that this motorist vrefused" to provide the breath sample required by section 1547. That drunk drivers are a menace on our highways is hardly contested, that scientific tests to determine bloodlalcohollevels are desirable is not an issue, that appropriate sanctions should follow noncompliance with the implied consent law is not in dispute, that those who would manipulate or feign compliance with the procedure should not escape these sanctions is also not an issue. But to impose a suspension on the regimented basis demanded here by PennDOT could not have been the intent of the general assembly when it enacted this legislation. The findings of the court are fully supported by the record. Based on those findings, the suspension must be reversed, The fact that the motorist became very ill (chest pains, dizziness and nauseous) during the processing and had to be sent by ambulance to Holy Spirit Hospital 4 ',,~, '--r-,,",''-' ,,-", ,. '-?<f " ,,' ,'", ." . . .- ,"' o c) supports a conclusion that there was no refusal. It is further noted that at the time the arresting officer claimed he declared her "a refusal" she was in the bathroom after having "thrown up." The court can certainly use its common sense in making its decision without medical testimony. See, Carlin v. Penn Dot, 739 A.2d 656 (Pa.Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 678, 759 A.2d 924 (2000). B. Mancke, Esq., 10 No. 07212 Ma ke, Wagner, Hershey & Tully 2233 N, Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner Dated: August 2, 2001 5 ,~ 'd<'<"",'."'_-" ,-, ~ C'".. "I '" ' 1."1" ., ,[- , , "In' _ -"