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DAVID M. FRANKLIN,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
vs,
,
NO. &/- c296'l ~
COMMONWEALTH OF PENNSYLVANIA :
DEPARTMENT OF TRANSPORTATION,
Respondent DRIVER'S UCENSE SUSPENSION APPEAL
ORDER
AND NOW, this If"daY of May, 2001, upon consideration of the Petition for Review
by David M. Franklin for review of an order by the Department of Transportation suspending
Petitioner's operating privilege, a hearing de novo is granted to determine whether the action of
the Department of Transportation in suspending Petitioner's operating privilege should be set
aside and the Department's order suspending Petitioner's license is stayed pending the hearing
on this matter.
Hearing on the above-captioned case is set for ~ cJ.. 7 200 1, at 101 rJ7} 11M. in
Courtroom No, tf Cumberland County Courthouse, Carlisle, Pennsylvania.
The Petitioner is directed forthwith to serve a notice of the appeal and copies of the
Petition for Review and order for hearing on the Department of Transportation at the address
shown in the Department's notice of entry of order, by certified mail, return receipt requested,
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BY THE COURT:
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DAVID M. FRANKLIN,
Petitioner
vs,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 0/- :lQ5'/ ~'J I~
COMMONWEALTH OF PENNSYLVANIA :
DEPARTMENT OF TRANSPORTATION,
Respondent
DRIVER'S LICENSE SUSPENSION APPEAL
PETITION FOR REVlEW OF ORDER OF
DEPARTMENT OF TRANSPORTATION
SUSPENDING OPERATING PRIVILEGE
Petitioner, David M, Franklin, by his attorney, Peter B, Foster, Esquire, respectfully
petitions the Court pursuant to 75 Pa, Cons, Stat. Ann. S 1550 for review of an order of the
Department of Transportation suspending Petitioner's operating privilege, and, in support
thereof, represents as follows:
1. Petitioner David M. Frank:lin is an adult individual residing at 1311 North 21 st
Street, Harrisburg, PA 17109,
2. Petitioner currently possesses a valid driver's license which has not heretofore
been suspended, cancelled or revoked,
3, By letter dated April 19, 2001, Petitioner was notified in writing by the
Department of Transportation of the entry of an order suspending his driver's license for refusal
to submit to chemical testing upon arrest for driving while under the influence of alcohol. A
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copy of said letter is attached as Exhibit "A",
4, The suspension is improper and unlawful for the following reasons:
A. The Police Officers who handled the administering
of the Breathalyzer Test failed to inform Petitioner that he did not
have the right to an attorney.
B. Petitioner blew into the Breathalyzer machine
correctly, but the machine did not function properly and failed to
register Petitioner's breath samples,
C, The Police Officer administering the test did not
instruct Petitioner properly in giving the breath test and did not
operate the Breathalyzer machine properly in giving the test.
WHEREFORE, Petitioner respectfully requests that the Court stay Petitioner's driver's
license suspension by the Department of Transportation until the hearing and that the Court set
this matter down forthwith for a de novo hearing pursuant to 75 Pa, Cons. Stat. Ann, S 1550.
Respectfully yours,
May 15, 2001
~6,~
Peter B, Foster, Esqnire
Attorney for Petitioner
PINSKEY & FOSTER
121 South Street
Harrisburg, P A 17101
Phone: (717) 234-9321
Fax: (717) 234-7832
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FROM DRlJ ID M FRl'iN'(Ll N
PHONE ~~O. : 7172130722
Ma~. 14 2001 11:05RM Pi
,
COMMoNWEALTH OF PENNSVLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17123
APRIL 19, 2001
DAVID MICHAEL FRANKLIN
1311 N 21ST STREET
HARRISBURG PA
1710'1
01102bl020b434A 001
04/12/2001
l?lbbOb?
Ob/08/1'lS'l
Dea... Motorist;
-'As"-a--'result' of your violation of
Vehicle Code, CHEMICAL TEST REFUSAL
driving Privilege is b..ing SUSPENDED
VEAR(S) .
Section 1547 of the
on 03/31/2001, \/<lUr
fo.. a period of 1
In orde... to comply with this sanction you are .....qui..ed to
retU"'n any current drive..'s license, learne..'s pe..mit and/o...
temporary driver's lic@ns@ (cam@ra card) in your possession
no later than the effective date listed, If you cannot
comply with the ..equirements sta~ed above, you are requi..ed
to submit a DL16LC Form 0... a sworn affidavit stating t~at
you a..e awa..e of the sanction against \IOU.. d..iving
privilege. Failure to comply with this notice shall result
in this Bureau referring this m.,tter to the Pennsyl.,.,ni.,
state Police for p...osecution under SECTION 1571(a)(4) of the
Vehicle \;;ode.
Although the law mandates that Your driving privilege is
unde.. suspension even if you do not surrender you... license,
crecU:t will not begin until ..11 current driver '5 license
product(s), the Dl16LC Form. or a letter acknowledging you...
--",~a".t!,~,in~, i!:
rcc2i....~,~ in this Ih~r'e"au.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE DR
ACKNOWLEDGEMENT. WE WILL SEND YOU A RECEIPT. IF YOU DO NOT
RECEIVE THIS REC~IPT ~ITHIN 15 DAVS CONTACT THE DEPARTMENT
IMMEDIATELV. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD
SERVING THIS SANCTION.
The e~fect1ve date of suspension 18 05~24~2001, 12:01 a.m.
****.*~****.*.***************.****.**..~4.************.*.*.
WARNING: If you a...e convicted for d...iving while your I
license is suspended, the penalties will be: a MINIMUM I
of 90 days imp..isonment AND B 1,000 fine AND your I
I license will be SUSPended fo.. 1 year. I
.... if.........."" lElE" lE lE lE lElE II lEll lE.. !Ill II II ** * II *****lElI !!llIU' * * ** * *1I!!... * **"""
EXHIBIT "A"
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FROM DRUID M FRRNKLIN
PHm~" NO.
7172130722
Ma~. 14 2001 11:05RM P2
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011026102064348
Please see the enclosed application for restoration fee
informatiDn.
APPEAL
You have the right to appeal this action to the Court of
Com","n Pleas (Civil Division) within 30 days of the mail
date. APRIL 19. 2001, of this letter. I~ YOU ~1~e an appeal
~n the county court, the Court wi~~ give YOU a time-stamped
cert~1':ied COpy 01' the appeal.. In order for YOUr appeal to
_ be.._v.a.li.d... ~D.1J, mu.s.Lse.o.d..th i s_ .t..i......""ta_e.d-e4'" tif ied--&opy-o-i"...- . "'_.'_'_..'"
~~~ ~ppea1 by c@rtified mail ~o:
PennsYlvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
HarriSbUrg., PA 17104-2516
SincerelY,
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Rebecca L. Bickley, Director
Bureau of Driver Licensing
SEND FEE/LICENSE/DL-16LC/TO.
Department of Transportation
Bureau of Driver Licensing
P.O. BoX 6869i
Harrisburg, PA 17106-8693
INFORMATION (7.00
IN STATE
OUT-OF-STATE
TDD IN STATE
TOO OUT-OF-STATE
AM TO ,.00 PM)
1-800-932-4600
717-391-6190
1-800-228-0676
717-i91-6191
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VERIFICATION
David M. Franklin, hereby states that he is the Petitioner in this action and that the
statements of fact made in the foregoing Petition are true and correct to the best of his
knowledge, infonnation and belief. The undersigned further understands that the statements
herein made are subject to the penalties of 18 Pa. Cons. Stat. Ann, ~ 4904 relating to unsworn
falsification to authorities.
May 15, 2001
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DAVID M. FRANKLIN,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
01-2951 CIVIL TERM
LICENSE SUSPENSION APPEAL
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Thursday, August 23, 2001,
in Courtroom Number 4.
APPEARANCES:
PETER B. FOSTER, Esquire
For the Petitioner
TERRENCE M. EDWARDS, Esquire
For PennDOT
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INDEX TO WITNESSES
FOR THE RESPONDENT
DIRECT
CROSS REDIRECT
Ptl. Timothy J. Hutcheson 4 10
Ralph M. Richwine
13
19
25
FOR THE PETITIONER
David M. Franklin
27
30
INDEX TO EXHIBITS
FOR THE RESPONDENT MARKED ADMITTED
Ex. No. 1 - chemical testing
warnings 7 13
Ex. No. 2 - calibration &
accuracy Intoxilyzer 5000 15 26
Ex. Nos. 3 & 4 - breath
test tickets 16 26
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1 MR. EDWARDS: Good morning, Your Honor.
2 MR. FOSTER: Good morning.
3 THE COURT: Good morning.
4 MR. EDWARDS: May it please the Court, Your
5 Honor, I am Terrence Edwards, Office of General Counsel,
6 representing the Commonwealth of Pennsylvania, the
7 Department of Transportation, Bureau of Driver Licensing in
8 this matter. To my left is Theresa Kinsinger-Horvath, who
9 is a certified legal intern, who is working for the
10 Department of Transportation, and is currently awaiting the
11 results of the Bar exam. We are waiting with her. We hope
12 she will be joining us, Your Honor.
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21 we get started?
22 MR. FOSTER: No, Your Honor.
23 THE COURT: Very well.
24 MR. EDWARDS: Your Honor, this is a chemical
25 refusal case under Section 1547(b) (1) of the Vehicle Code.
THE COURT: Been there, done that.
MR. EDWARDS: A thrilling time.
THE COURT: Yes, indeed.
MR. EDWARDS: And with that, Your Honor, I
will begin our case.
THE COURT: Very well.
MR. EDWARDS: Thank you, Your Honor.
THE COURT: Anything you want to say before
3
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1 THE COURT: I read the petition.
2 MR. EDWARDS: May I call at this point
3 Officer Timothy J. Hutcheson.
4 Whereupon, PTL. TIMOTHY J. HUTCHESON,
5 having been duly sworn, testified as
6 follows:
7 DIRECT EXAMINATION
8 BY MR. EDWARDS:
9 Q Good morning, Officer Hutcheson?
10 A Good morning, sir.
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Q
Please state your full name and spell your
last name?
A
Q
A
Q
A
Q
A
Timothy Joseph Hutcheson, H-u-t-c-h-e-s-o-n.
And by whom are you employed?
West Shore Regional Police Department.
And how long have you been employed?
With West Shore it has been two years.
And did you have any experience before that?
Yes. I was employed with Middlesex Township
Police Department for three years.
Q And you are a police officer?
A Yes, sir.
Q Officer Hutcheson, do you recognize Mr.
Franklin?
A
Yes, sir, I do.
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Q
would you please point him out for the
2 court?
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A
He is seated to the left of counsel in the
dark suit.
MR. EDWARDS: Your Honor, may the record
reflect that the witness has pointed to Mr. Franklin.
BY MR. EDWARDS:
Q On March 31st, 2001, March 31st of this
year, did you have occasion to come into contact with Mr.
Franklin?
A
Yes, I did.
Q Can you please describe the circumstances
under which you came into contact with him?
A Yes, sir. It was during a traffic stop
after a violation of a failure to stop for a red light in
the Borough of Wormleysburg.
Q About what time was this?
A
Q
A
Q
This was at approximately 0330 hours.
And that was on the 31st of March?
Yes, sir.
What if anything happened after you stopped
22 Mr. Franklin?
23 A I spoke to Mr. Franklin, obtained his
24 Pennsylvania driver's license, detected a strong odor of an
25 alcoholic beverage on his breath when he spoke, saw his
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1 eyes we~e red and glassy, asked him to perform standard
2 field sobriety tests.
3 Q When you first observed the odor of alcohol
4 and the glassy eyes, was he still in the vehicle?
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A
Q
A
Yes, sir, he was.
Was he operating the vehicle?
Yes, sir, he was.
Q Was anyone with him?
A No, sir.
Q Did you ask him to exit the vehicle then to
perform the field sobriety test?
A
Q
A
Yes, sir, I did.
What if anything happened after that?
He failed to perform the test. And he was
15 placed under arrest for driving under the influence.
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17 arrest?
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Q
Did you tell him you were placing him under
A
Q
Yes, sir, I did.
And what did you tell him you were placing
him under arrest for?
A For driving under the influence of alcohol
or a controlled substance.
Q What if anything happened after that?
A He was taken to the Central
Processing -- well, the West Shore Booking Center in Lower
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Allen Township.
Q And who took him there?
A I took him there.
Q What if anything happened after you arrived?
A I read to him the standard refusal form
supplied by PennDOT. I read that on video. And then I
released him to Agent Richwine for further breath testing.
MR. EDWARDS: Your Honor, may I approach the
witness?
THE COURT: Certainly.
MR. EDWARDS: Your Honor, I am handing
Officer Hutcheson what's been marked as State's Exhibit No.
1, and ask you just to review that for a second.
BY MR. EDWARDS:
Q
A
Are you familiar with that document?
Yes, sir, I am.
Q And what does that appear to you to be?
A This is the Chemical Testing Warnings that I
read to the defendant and had him sign on that date that he
understood it.
Q And which warnings did you read to him?
A I read to him Sections 1, 2, 3, 4. Under 4
it was a, band c.
Q
A
And you read all of those to him?
Yes, sir, I did.
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What was his response?
He understood, and he said he would comply.
And he did sign it then?
Yes, sir, he did.
Q What if anything happened after that?
A Agent Richwine attempted to give him the
breath test, which he failed to give two samples
MR. FOSTER: I am going to object unless
this officer was present during that,
THE COURT:
MR. EDWARDS:
I am assuming he was.
He was present, Your Honor.
THE WITNESS:
MR. EDWARDS:
Yes, sir. I was present.
Unless the objection is
14 sustained, I was going to ask what your observations were.
15
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THE COURT: No. Go ahead.
THE WITNESS: I observed the defendant to
17 give attempt to give, two breath samples. When he did
18 he would blow into the machine after Agent Richwine
19 specifically told him how to do it. I saw him blow into
20 the machine. And his cheeks would puff out. And he would
21 strain to blow. There was not a constant tone, which means
22 there was air going into the machine. The machine timed
23 out. There wasn't a significant amount of air for a
24 sample.
25 BY MR. EDWARDS:
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Q Have you had occasion to observe --
MR. FOSTER: I am going to object and ask
that that testimony be stricken unless there is a
foundation that he is an expert in how to give this test.
THE COURT: That's overruled. He is just
saying what he observed. Overruled.
MR. EDWARDS: Thank you, Your Honor.
BY MR. EDWARDS:
Q Have you had occasion to observe the giving
of breath tests under circumstances like this to other
people?
A
Yes, sir.
Q Are you familiar with how one properly
completes one of these breath tests?
A Yes, sir, I am.
Q And do you have any idea how many times you
have watched this?
A Oh, since the two years I have been there,
at least twenty times.
Q And you had occasion then to see people
complete the test properly?
A
Yes, sir.
23 Q Based upon your observations, did it appear
24 to you that Mr. Franklin was trying to complete the test
25 properly?
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MR. FOSTER:
THE COURT:
BY MR. EDWARDS:
I am going to object to that.
Overruled.
4 Q Did he appear to be trying to give -- to
5 complete the test properly?
6 A No, sir.
7
MR. EDWARDS: No further questions, Your
8 Honor.
9 CROSS-EXAMINATION
10 BY MR. FOSTER:
11 Q Officer, did Mr. Franklin cooperate in
12 giving the field tests?
13 A The standard field sobriety tests?
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Q
A
Yes.
Yes, sir.
Q Now, when you say that his cheeks puffed up
when he blew into the machine, isn't that a sign that he
was in good faith trying to blow into the machine following
the operator's instructions? In other words, when you are
blowing into the machine, wouldn't it be normal for your
cheeks to puff up?
A I have never seen anybody do that, that has
done it properly, to see the cheeks blowout like they
were. I have never seen that. I have seen people when
they blow you don't see their checks puff out. You see
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1 them strain, but you don't see big cheeks puff out.
2 Q It is your testimony because his cheeks were
3 puffing out that he was not in good faith blowing into the
4 machine?
5 A Plus there was not a steady tone of air
6 coming through. You couldn't hear the steady tone that you
7 hear when people blow through the machine. It makes a
8 tone. It would blow just a little bit and then it would
9 stop. And then he would sit there with his mouth over it,
10 and just his cheeks were just puffed out.
11 Q How far away from the machine were you
12 located when he was blowing into it?
13 A I would say a desk two or length. The
14 machine was on a desk. And then there was a little bit of
15 space and then another desk, and I was behind that. So two
16 desks widths, ten feet at the most.
17
18
Q
What is the noise that this machine makes?
A
It is a tone.
19 Q What kind of a tone?
20 A A beep -- a steady tone. B-e-e-e-e-e-p when
21 you blow into the machine.
22 Q Did you hear that tone when he was blowing
23 into the machine?
24 A When he first started to blow, yes, and then
25 he would stop.
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1 Q Then he would stop?
2 A The tone would stop, yes. And you could
3 tell he wasn't blowing.
4 Q How could you tell that?
5 A Because there was no tone.
6 Q You don't know whether the machine was
7 defective or not, do you?
8
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A
Q
No, sir, I don't.
Okay. And there was no verbal refusal to
10 blow into the machine, was there?
11
12
A
Q
No, sir.
And when he was instructed by the operator
13 to blow into the machine, he blew into the machine, didn't
14 he?
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operator?
22 Honor.
23
A
Q
Yes, but not correctly.
Are you certified as a Breathalyzer
A
No, sir.
MR. FOSTER.: That's all I have.
THE COURT: Anything else?
MR. EDWARDS: No further questions, Your
Your Honor, at this time we call booking
24 agent Ralph Richwine.
25
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1 Whereupon, RALPH M. RICHWINE, III, having
2 been duly sworn, testified as follows:
3 MR. EDWARDS: Your Honor, before I start
4 with Agent Richwine, I would like to offer State's Exhibit
5 1 into evidence. That's the chemical refusal form.
e THE COURT: Unless there is objection, we
7 will admit it.
a DIRECT EXAMINATION
9 BY MR. EDWARDS:
10 Q Good morning, Agent Richwine.
11 A Good morning.
12 Q please state your full name and spell your
13 last name?
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A
Ralph Maurice Richwine, III. It is
R-i-c-h-w-i-n-e.
Q And by whom are you employed?
A Cumberland County District Attorney's
Office, Central Processing Department.
Q How long have you been employed in that
position?
A One year and two months.
Q What generally are your duties?
A Processing criminals that police officers
bring in off the street, the arrests they make, processing
DUI's.
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1 Q When you say processing DUl's, what does
2 that involve?
3 A I give them a breath test, their standard
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field sobriety tests, entering information into the
computer, photographing and fingerprinting.
Q Do you recognize Mr. Franklin?
A Yes, sir, I do.
Q Could you point him out, please?
A Right over there.
MR. EDWARDS: Your Honor, let the record
11 reflect that Agent Richwine has pointed to Mr. Franklin.
12 BY MR. EDWARDS:
13 Q On March 31st, 2001, did you have occasion
14 to come into contact with Mr. Franklin?
15
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A
Q
Yes, I did.
under what circumstances did you come into
17 contact with him?
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Officer Hutcheson had brought him in for a
A
DUl arrest.
Q Have you had any training in the use of an
lntoxilyzer machine?
A Yes, sir, I have.
Q
A
And what training was that?
Officer Meiss was our trainer. And that
25 took place last July -- or July a year ago, July 13th. I
14
"" ,~,
. , ".....~
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1 have a certificate here.
2 Q Have you been properly certified to operate
3 the Intoxilyzer machine?
4
5
6
7
A
Q
A
Q
Yes.
And which model of Intoxilyzer machine?
Intoxilyzer 5000.
That evening were you using an Intoxilyzer
8 5000 machine?
9 A Yes, sir, I was.
10
11
12
13
witness?
MR, EDWARDS: Your Honor, may I approach the
THE COURT: Yes.
MR. EDWARDS: Your Honor, I have an original
14 that I am going to need back. I made copies of it, but
15 this has been marked as State's Exhibit No.2 on the copy.
16 BY MR. EDWARDS:
17 Q And I ask the witness just to take a look at
18 that for a second. Agent Richwine, are you familiar with
19 that document?
20
21
22
23 instrument.
24
A
Q
A
Yes, sir.
What does that purport to be?
This is the calibration and accuracy of the
Q
And this is the same instrument you were
25 using that night?
15
1
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A
Yes. That's what's on the serial number
2 that's on the tickets.
3
Q
In other words, the serial number on the
4 tickets coordinates to the certificate you have there?
5
6
7
8
9
A
Q
A
Q
A
Yes, sir.
Was that machine properly calibrated?
Yes, sir, it was.
Was it properly certified for its accuracy?
Yes, sir.
10 Q At the time you administered the breath test
11 to Mr. Franklin, was the machine operating properly?
12
13
A
Yes, sir.
MR. EDWARDS: Your Honor, I would like to
14 approach again.
15 BY MR. EDWARDS:
16 Q I am going to hand the witness two
17 documents. And they are both originals again, Your Honor.
18 I have copies. One will be marked as State's Exhibit 3,
19 and one is State's Exhibit 4. I am going to give him 3 and
20 leave 4 right there.
21 Are you familiar with that document?
22
23
24
25 Intoxilyzer.
A
Q
A
Yes, sir.
And what does that purport to be?
This is the ticket that prints out of the
16
"c,
a""",~
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1
2
Q
A
And how did that ticket come into existence?
This comes out from the first time we asked
3 Mr. Franklin to give us a breath test, in which he failed
4 to give us a proper breath test. So we ended up with an
5 invalid test.
6 Q Now, the other ticket that I have there,
7 which is State's Exhibit 4, can you take a moment to review
8 that as well? And what does that purport to be?
9 A We offered him to take the test the second
10 time, to give him a chance to re-do it. He still failed to
11 blow properly. And we come out with a deficient sample.
12 Q I see on there that there are some numbers.
13 Can you explain what those numbers mean?
14 A Okay. The first one, the subject test, was
15 a .144. But if you see, it has as an asterisk beside it.
16 That asterisk means that it was a deficient sample. What
17 that is he didn't blow long enough. You have to keep the
18 tone going until a fourth digit comes up. And then I tell
19 the individual to stop blowing. Then we have the
20 sufficient sample. In this particular case he didn't keep
21 the tone going.
22 Q How about the number beneath that?
23 A That's the same thing, same as the first --
24 Q Again, didn't blow long enough to come up
25 with a sufficient sample?
17
,
",,-,- " "< ~ - J>.a<1,j.,,,,,.;,,L
1
2
A
Right.
MR. EDWARDS: Your Honor, I have a
3 videotape. It is about twenty minutes long. And if Your
4 Honor would permit me, I will go ahead and play it.
5 THE COURT: That's fine. Though I think the
6 germane portion would be where he was attempting to take
7 the breath test, am I right?
8
MR. EDWARDS: And that's what most of it is.
9 The beginning of the tape is just the reading of the
10 warnings that Officer Hutcheson has testified to. And as
11 Agent Richwine has just testified, there were two tests,
12 Your Honor.
13
14
15
THE COURT: Okay.
MR. EDWARDS: That's why it is such a long
videotape.
16 (Whereupon, the videotape was played.)
1 7 BY MR. EDWARDS:
18 Q Agent Richwine, there was somebody off
19 camera who was speaking to Mr. Franklin. Do you know who
20 that was?
21 A Officer Hutcheson was back there.
22 Q There was someone who was telling him how to
23 do the test. Do you know who that was?
24 A Oh, that was me, yes.
25 Q You videotape. Is that a fair and accurate
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
.~" "~,
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representation of the testing process that you administered
that night to Mr. Franklin?
A Yes, it was.
Q Did Mr. Franklin ever properly complete a
breath test that evening?
A No.
MR. EDWARDS: No further questions, Your
Honor.
CROSS-EXAMINATION
BY MR. FOSTER:
Q
Officer, may I see your certification?
A These are the two for the Intoxilyzer 5000.
Q Officer, this calibration test was given on
February 16th, is that right, of this year?
A
You mean for the certificate that Officer
Hutcheson
Q Exhibit 2, which says calibration, signed by
Katherine L. Shrauder?
A
Yeah. Whatever date is on there.
20 Q Is Exhibit 2, and it says calibration
21 February 16th, '01 n
22 A Right.
23 Q This testing of Mr. Franklin was given on
.'
24 March 31st, wasn't it?
25
A
Right.
19
''OJ
-'-"'~'-I
1 Q So the calibration test was not given within
2 thirty days of Mr. Franklin's testing?
3 A The calibration only needs to be done once a
4 year. It is the accuracy that has to be done within thirty
5 days. And you will see that's the one to the right.
6 Q Let me ask you this. Do you have a
7 simulator solution certificate from the manufacturer for
8 this machine?
9 A I don't. That's the responsibility of the
10 technician. I am just a trained operator.
11 Q Do you know if there is a simulator solution
12 certificate for this machine?
13
A
Not the solution certificate. I don't know
14 of that, no.
15 Q Do you know if there is an ampule
16 certification for this machine?
17
A
No. I don't know. That's all taken care of
18 by the technician.
19 Q Did you test this machine within twenty-four
20 hours of giving Mr. Franklin his test?
21 A The instrument is tested everyday at the
22 beginning of the shift.
23 Q By whom?
24 A For that particular day I done it myself.
25 Q What was the result of that test within that
20
~ "
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1 twenty-four hour period that you gave, that you conducted?
2 A I don't recall, but that would show on the
3 second ticket. The calibration check was a .094, which
4 means it was good.
5
Q
Was there any test given before the testing
6 of Mr. Franklin within the twenty-four hour period?
7
A
I don't recall that.
8
Q
Isn't it possible that this machine was
9 defective, and that's why it didn't give an accurate
10 reading?
11
A
The instrument was operating the way it was
12 supposed to.
13
Q
Was there a waiting period of twenty minutes
14 before the test was given?
15
A
Yes, sir, there was.
16
Q
Now, you couldn't tell if he was giving a
17 good faith effort to blow into the machine or not, could
18 you?
19
A
I see enough of these done to know that you
20 don't -- it is very simple to blow into this instrument.
21
Q
Well, let me ask you this. Apart from the
22 sounds of the machine, didn't it appear as if Mr. Franklin
23 was making a good faith effort to blow into the machine?
24
A
No. It appeared to me he was keeping all
25 the air in his mouth. If you are blowing into the machine
21
^ ~ I'
1 correctly, it is going to be like blowing up a balloon.
2 Your cheeks will come in, and the air is all concentrated
3 into the tube. His air was concentrated into his mouth.
4 That's why it was puffed out. And any little bit of air
5 that was coming out was coming around the corner. It is
6 very easy to blow into this instrument unless you have got
7 severe, severe health problems.
8
Q
Didn't you say on the tape that he was
9 trying too hard to blow into the machine?
10 A What I meant by that was by his checks being
11 puffed out.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Has this machine ever proven to be defective
since you have been operating it?
A I couldn't say that on this particular
machine. We have had some that have been defective. And
what we do is put them out of service immediately and call
the technician.
Q You don't know whether or not this machine
has been defective before or after this test was given?
A No, sir. I do not. But I just know at that
time it was not defective.
Q
How long have you been operating this
machine?
A
Q
I have been operating Intoxilyzers for --
This particular machine --
22
I, '
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1 A Well, I have no idea. We don't keep track
2 of that, because one time I work at one center, one time I
3 work at another center. There is two Intoxilyzers at each
4 center.
5 Q Would it be fair to say that Mr. Franklin
6 was fully cooperative during this testing procedure?
7 A He was cooperative in some respects, but I
8 don't think he was cooperative as far as blowing into the
9 instrument. He did not follow the instructions.
10 Q And what you are saying is you travel
11 between various booking centers?
12
13
Yes, sir.
A
Q
And this is a machine that you use
14 occasionally?
15
16
Yes, sir.
A
Q
And you are unable to say whether it has
17 been defective on other occasions or not?
18 A That particular instrument I don't know, no.
19 But whether it was, it is serviced, it would not be -- it
20 would not have been in the center in service if it were
21 defective, because we have a technician that takes care of
22 that.
23 Q These ampule tests and simulator solution
24 tests, wouldn't they show whether or not it was defective?
25 A When we give the test at the beginning of
23
. ~ ~
1 the shift, if we have a low reading, that means it is time
2 to change the simulator solution.
3 Q As I understand it, you didn't give a test
4 at the beginning of the testing of Mr. Franklin? You gave
5
6
7
8
9 test?
10
it after the test?
A No, no.
I gave one at the beginning of the
shift.
Q
I see. And what was the results of that
A
I don't know. I would have to look on
11 my -- we have what's called a daily activity log. That's
12 where I record that, but, like I said, it would be similar
13 to what's on the ticket here, the .094.
14
15
16
17
18
19
20
21
22
23
24
25
Q
You don't have that log here with you today?
A No, sir, I don't.
Q Are you able to remember whether or not the
machine passed the test or not?
A If it would not have passed, I would have
changed the solution. That's the idea of doing the test.
So regardless, if it would have passed or not, I would have
put new solution on. That would have brought it up to the
right calibration.
MR. FOSTER: That's all I have.
MR. EDWARDS: Very briefly, Your Honor.
24
,- ~
i~"';
1
2
3
4
5
6
7
~~",".-"i
REDIRECT EXAMINATION
BY MR. EDWARDS:
Q On page three of what's been marked as
State's Exhibit 2, and that's the certificate of accuracy,
do you have that in front of you?
A
Q
No, I don't.
What is page three?
8 A That's the accuracy certification that our
9 technician does every month.
10 Q And does that show that this machine was
11 certified properly on the 12th of March, 2001?
12
A
Yes.
13 Q And was that within thirty days of the date
14 on which you administered the test to Mr. Franklin?
15
16
17
18
19
20 BY THE COURT:
21
A
Yes, sir.
Q
Thank you.
MR. EDWARDS: No further questions, Your
Honor.
MR. FOSTER: Nothing further, Your Honor.
Q
Agent Richwine, I noticed in this particular
22 case, I have watched some of these training sessions, and I
23 have watched more than one of these videotapes. But I
24 noticed that he had virtually the entire mouth piece in his
25 mouth.
25
, '
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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~~
A Yes.
Q Is that common?
A No. That's why I --
Q Usually the persons blows into the -- the
way you get it into the tube is to have the little end in
your mouth --
A That's what I was trying to tell him.
Q With the bulb outside of your mouth. That's
how you get the air in the machine.
A Right.
Q You didn't explain that to him?
A Yes. I did try to tell him that. It is on
the tape. I tried to tell him to pull it out further.
Q But he didn't?
A
No.
16 Q Why didn't you pull it out and show him how
17 far it had to be out?
18 A I explained everything to him. It was
19 explained.
20 THE COURT: Thank you. You can step down.
21 MR. EDWARDS: Your Honor, at this time I
22 would like to offer State's Exhibits 2, 3 and 4 into
23 evidence.
24
25
THE COURT: We will admit them.
MR. EDWARDS: And with your permission, Your
26
. .
-,
,.
'--,
1 Honor, I am going to substitute copies for them.
2
3
4 Your Honor.
5
6
7
8
9
Honor.
THE COURT: Yes, of course.
MR. EDWARDS: I believe 1 is already in,
THE COURT: Yes.
MR. EDWARDS: The Commonwealth rests, Your
THE COURT:
MR. FOSTER:
Very well.
We would like to call Mr.
10 Franklin, Your Honor.
11 Whereupon, DAVID M. FRANKLIN, having been
12 duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. FOSTER:
15
16
17
18
19
20
21
22
23
24
25
Q
A
Q
A
Q
A
Q
A
Q
A
Q
State your full name for the record, please?
David Michael Franklin, F-r-a-n-k-l-i-n.
How old are you, Mr. Franklin?
Excuse me, sir?
What is your age, sir?
Forty-two.
And where do you work?
Prudential Financial.
And what do you do for them?
I am an agent.
Now, on this date, March 31st of this year,
27
'..
,~, ~~~.\ijj~;,.J
',,,,-<. ~ ,,"' , -, ,-~ ~" ~, 'TtiOM~<,":I,
1 do you recall being stopped by Officer Hutcheson?
2
3
4 tests?
5
6
7
8
9
10
11
12
13
A
Q
Yes, sir.
Did you cooperate fully in giving the field
A
Q
Yes, sir.
You were then taken to the Booking Center?
A Yes, sir.
Q And at the Booking Center did you agree to
take the Breathalyzer 5000 test?
A
Q
A
Q
Yes, sir.
Did you fail to cooperate in anyway?
No, sir.
Are you used to receiving orders and taking
14 orders, Mr. Franklin?
15
16
A
Q
Yes, sir.
Why is that?
17 A I am retired from the Marine Corps, where I
18 spent twenty years, six months.
19 Q Do you need your motor vehicle to perform
20 your job for prudential?
21
22
A
Q
Yes, sir.
Why is that?
23 A Well, everything we do is outside of the
24 office basically. Whereas, I would have to go see all
25 clients in the normal routine of my duties.
28
1
2
3
4
'. ,
",I
"-'- l" "',a.',
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Q All right. Now, you have heard the
testimony of Mr. Richwine, is that correct?
A Yes, sir.
Q
Okay. Did you try to blow into the machine
5 as hard as you could?
6
Yes, sir.
A
7 Q Did you make any attempt to cheat the
8 machine or falsify the test?
9
No, sir.
A
10 Q Do you recall Officer Richwine telling you
11 not to place the whole mouth piece in your mouth but to
12 just blow into the tip of it, the end of it?
13
14
15
16
17
A
Well, I was following his instructions at
the time
Q What were his instructions?
A To place the plastic piece in my mouth and
blow through the tube.
18 Q The entire piece? What did he tell you
19 regarding that mouth piece?
A
Just to place it in my mouth and blow into
20
21 it.
22 Q What part of it, if any?
23 A Well, if I remember right, the plastic was
24 round, and it had like a straw-like cylinder sticking out
25 at one end. So what I did was place my mouth down on the
29
!J 0
1.-....,.
cylinder and then blew through the tube.
Q Did he ever tell you just to blow into the
straw portion of it?
A He just said try to force the air through
that portion.
Q Were you ever told anytime during this test,
and you had an opportunity to see it on tape, just to blow
into the tip of it, the straw portion of it, rather than
place the entire mouth piece in your mouth? Were you ever
told that?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15 could?
A
Q
A
Q
Not that I recall, sir, but, no.
Were you following his instructions?
Yes, sir.
Did you blow into the machine as hard as you
16
A
Yes, sir.
17 MR. FOSTER: Cross-examine.
18 MR. EDWARDS: Thank you.
19 CROSS-EXAMINATION
20 BY MR. EDWARDS:
21 Q Mr. Franklin, you have heard Officer
22 Hutcheson testify that when he stopped you for the traffic
23 violation and you approached your vehicle, he smelled a
24 strong odor of alcohol on your breath?
25
A
Yes, sir.
30
-,. ',-
. -. " ""I
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..
t,,"~,~ ,.~! ""'.'''''TiI~it
1
2
3
4
Q
You were drinking that night, is that
correct?
A
Yes, sir.
MR. EDWARDS: Thank you. No further
5 questions.
6
MR. FOSTER: Does the Court have any
7 questions of this witness?
8
9
10
11
12
THE COURT:
MR. FOSTER:
THE COURT:
MR. EDWARDS:
No. Thank you.
You may step down.
Anything further?
Nothing from the Commonwealth,
Your Honor.
13 THE COURT: Okay. Care to make any
14 statements? I know there are some cases that deal with the
15 assessment of whether or not the person has made a good
16 faith effort to blow into the machine and talks about I
17 think the necessity to prove evidence of some sort of
18 illness or something if you claim not to be able to produce
19 a sample, but I don't sense that that's what Mr. Franklin
20 is telling me. I think he is telling me that he tried to
21 blow into the machine and it didn't go in. I think I know
22 why. Anything else?
23
24
25
31
"'
~",,=I,......."
-~~
1
(Whereupon, Mr. Foster closed on
2
behalf of the Defendant.)
3
(Whereupon, Mr. Edwards closed on
4
behalf of the Commonwealth.)
5
THE COURT: Okay. We will take it under
6 advisement. Thank you.
7
MR. EDWARDS: Thank you, Your Honor.
8
(End of proceedings.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
32
,- ,- ~,
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I
I
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the abovecause and that this is a correct transcript of
same.
Barbara E. Graham
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
Kevin A. Hess, J.
Ninth Judicial District
33
"I
I
1
,
DAVID M. FRANKLIN,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
01-2951 CIVIL
COM. OF PA., DEPT. OF
TRANS., BUREAU OF DRIVER
LICENSING,
Respondent
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this
"2-:;>"; day of August, 2001, after hearing, the court finding the
testimony of the petitioner to be credible and fmding, further, that adequate measures were not
taken to explain to him the proper method of taking the breathalyzer test, the appeal of David M.
Franklin from the suspension of his driver's license is SUSTAINED and the suspension of his
driver's license is VACATED.
BY THE COURT,
Peter B. Foster, Esquire
For the Petitioner
./JJ
Terrence M. Edwards, Esquire
For PennDOT
01''}.:
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11III-
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1I""11~ CHEMICAL 1 EST1;-.i"G WARNli~GS Mm m:ronr Of '
~ REFUSAL TO SUBMIT TO CHEMICAL TESTING AS "
," AUTHORIi:EDBY~OFTHEVEHICLECODE01102 6102 064348
NAUE
SEX
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ADDRESS
CITY
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.1. Plaasa be advlsad that you ara now undar arras I for driving undar tha Inlluonca 01 alcohol ,or a conlrollad substanca pursuant 10 sacUon 3731 of
tha Vahlcla Code.
2. I .,,; raquasUng thaI you submit to a chamlcsllasl of I3 R E. A 1" A (braalh, load or urina. Ollicer choosas tha chamlcalta...)
3.11 Is my duty", as a police officer, to Inform you that if you ralusa 10 submit 10 tha lasl your oparaling privllaga will ba suspended for a
period 01 ana yaar.
4. a) Tha conslltutional righls you hava as a criminal delandant, commonly known as tha Miranda Rights, Including tha rlghlto spaak wilh a lawyar and
tha rlghllo ramaln silanl, apply only to criminal pro,aculion, and do nol apply to tha chamicaltesling procadura undar Pannsylvania's Impllad
COnsanl Lew, which is a civil, nol a criminal procaading.
b) Vou hova no right to spaak 10 elawyar, or anyona also, baloralaklng Iha chemlcollasl raquasled by the pollco ollicarnor do you hava a rlghllo
ramain silant whan e'kad by Iha polica offlcar 10 submit 10 the chomlcsltas" Unla.. you agraa 10 submlllo thala,l requastad by Iha polica olllcar
your I~onducl will be deemed to be relusal and your operating privilege will be suspended for one year.
e) Your 10'u6allo submit 10 chemical testing under,the Implied 'Consent Law may be introduced into evidence in a criminal prosecution for'drlving
while IJnder the Inllu()nco of alcohol or a controlled substance.
Motorist re!usod to sign, altor being advised.
Signature of OUieer:
..j
-'-- Date:
I carllly thet I hava raad tha above warning 10 tha malo
nlly 10 submll to chomicallosting. .
Signature 01 Officer:
"I hava baan advlsad 01 the abova.
Signature of MOlorist:
",";;'
" "".' .,.' ." AFFIDAVIT
1. Tha abova molorlst wes placed undar orrSSllor driving undar tha Inlluanco 01 alcohol or a conlrollad subslan..a In Violation of Sactlon 373t of lha
Vehlclo Code, and thero were ;o'ssonabloigrounds to bqlieve that the abovo malorisl had been driving, operating or In actual physical control or
tho movamenl 01 a molOr vehicla whiloundar tho inlluence 01 alcohol or a conlrollad substance or bolh.
or
That Ihe obova namad motorisl was Involvad In an accidantln which Iha oparalor or passangar 01 ony vahicla Involved or a pada,lrlon raqulrad
traatmanl at a madlcsllacility or was killad. .
2. Tha abova molorlsl was requastad 10 submit to chamlcallasling as authorlzad by Saclion 1547 of tha Vahlcla Coda.
3. Tha abova molorist was inlormad by a pollca olllcar 01 tha chamlcsllosl warnings contalnad In paragraph 3 and 4 abova.
4. The above named motorist refwsed to submit to chemical testing. .
OFFICER NOTE: The r.Cu..1 '0 .Ign thl. form I. no' III ,.ruIII to aubml' to lhe chemlcolte.'. Vou mu.' .UII give the motorl.l In oPpo.,lu..
nlly 10 'oke Ihe chamlcaltBlt oflar reviewing Ihle form. Inha Individual wae opareUng a commarclat molor vahlcla while hevlng .ny
.Icohol or a conlrolled lubllancaln 'hair .ystam. you mUI'otlo ~omPI~lo Ih~e ~'f9 ^} ~
SUDSCRlDEDANDSWORN 4 04 01 OI"COrSlgnal~!_ tlJL~V11
TO BEFORE UE: 0 UO. DAY VEAR 7 '
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Phona: Cl12) '73,7-? I (, I
Mailing Addrass '30/ IY/Af)k'E'.T ~
LE(Y) 01 IJl ) PI. /70t;3
jurlsdlcllon: W(J~IY1t..ErS8v/2G-
Forward 10:
Qapartmant of TransportaUon
Buraau of Orivar L1cansing
PO.O. Box 2253
Harrisburg, PA 171 OS
THIS FORM MAY BE OU
51 ATE'S
EXHIBIT
Nolo: Any portinent facts not covored by the affidavit should be submil1ed on a
soporate sheet and nl1ached hereto. That sheet should Include the nam.. or
addilionol wilnassas naca.sary to prove Iha alamants to which you have allaslad.
ADDiTIONAL SUPPLIES OF TillS FORM MAV DE SECURED BV COMPLETING FORM OS.511A
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COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF CUMBERLAND )
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I certify that the attached copies of the Calibration & Accuracy Certificates
CALIBRATION ACCURACY
dated 2/ 16/01 I 3/ 12 / 0 1 are a true, correct, and complete
copy of the original Calibration & Accuracy Certificates.
In witness whereof, I hereunto set my hand and official seal.
Slt>.1E'S
E){t.\\SfI"
Notarial Seal
Kathryn L. Shmude!"1 Notary Pubilc
Carlisle Bow, Cumb-srlend C')W1ty
My Corr:ml~.sicn Expires Nov. 5, 2001
ber, Pennsylvania AssocIs.tIolI of Notan.'v
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF HEALTH
AND
DEPARTMENT or TRANSPORTATION
mtttificat.e
OF
Breathtesting Device Calibration
This is 10 certify that on
February 16, 2001
Date
an lNTOXIL YZER 5000, serial number
64-001274
was calibration tesled, and the degree of accuracy is within Ihe range specified in the
. .
.
'.
Department of Health and Department of Transportation Regulations promulgaled
under Section 1547 (c) of lhe "Vehicle Code", the Act of June 17, 1976 (P.L 162,
,
No. 81)(75 Pa. C.S. 1547(c), as amended.
,.
CUMBERLAND COUNTY DUI DEPARTMENT
CO\lRTHOUSE
CARLISLE, PA 1,7013
Daniel A. Lutz
February 16, 2001
r
Type Name Here
Dale
LOT #
00160
LOT #
00190
LOT #
00060
,
"
Certified Date:
Certified By:
t!:-r/?L~/
.D~;:;~;;1 A. Lutz
Type Name Here
CAL18RA nON TEST
Test Results
Constant
Absolute
Difference
,051 Ofo .05% 001 %
A.
B. . n,l % .05% 001 "70
050 .05"7. "000 "70
C. %
D. .050 % .05% 000 "70
048 ""
E. "70 .05"70 002 "70
TOTAL .004
"
A VEIIAGE IlEVIA'fION - TolD'
,004
000
'I.
<_.0/0
5.0
Test Results
~
Absolute
Difference
Conslanl
,", A. 0,97 % .1O"io 003 Ofo
B. 099 %. ,10% 001 %
.-.',.
C. nqR % .10% 002 %
D. 099 % .10"10 001 %
E. 098 % .10"1. 002 %
J
TOTAL :009 I
A. . 151 "10 .15"10 001 "10
UUl -
B. 151 % .15% %
C. 150 "70 .15"10 000 "10
-
D. ]';1 "10 .15% 001 "70
-
E. 150 "10 ,15"10 000 %
-
TOTAL .003
AVERAGt; IlEVIA'fION = Tolol
.003
5.0
000
'I.
%
. The constant for Ihis series of tesls must be above .100'/0' in some multiple of .050/0' (For e;l:,alllDle: .15D/a. ,200/6,
etc,). The certirled operator or aulhorlt:ed person must enler the appropriate notation In each of the rive sp~lces
of this column.
NOTE: ALL ENTRIES MUST BE TYPED.
",._ ,_~, "e . r.
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COMMONWEALTH OF PENNSYLVANIA
,
DEPARTMENT or HEALTH
AND
DEPARTMENT OF TRANSPORTATION
(!!:trtiftcntt
,OF
Breathtesting Device Accuracy
This is 1.0 certify t~al on March 12,2001
Date
an lNTOXIL YZER 5000, serial number
64-001 :174
was tested for accuracy, and the degree of accuracy is wilhinthe range specified in
the Department of Heallh and Department of Transportation Regulations
proll1ulgaled under Section 1547 (c) of Ihe "Vehicle Code", Ihe Act of June 17, 1976
(P.L. 162, No. 81)(75 Pa. C.S. 1547(c), ns amended.
CUMBERLAND COUNTY DUI DEPARTMENT
COURTHOUSE
CARLISLE, PA 17013
(717) 240-6222
Geor~~__Chaooskv
Type Nmne Here
tlarch 12,2001
Dale
.':1"4'-
"-lj_"<d;lb""BI&.''''U,"''''-1.B,'''Mh~''''''''''''T~'l;_J"",,,-,,,,,.,,.,,,--,,,,,;,'H1,~!r","j",,""'-I:< ~'" ',--",L,,,,,,,," ."- 1. '''-'''',' "; ";,b""A:''''"l<WID!.lld~'I!laIiI.~_""_'''';,lli'::';'''';",c.w.;;''''''''''''''-"'''''ili:,,,,,..;r''''''''_'IiI~eM''''' -'"'~--m "" > '>~ ~ ~.~
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LOT N 00150
'.
wlliLLJElIllll
Certified Dale:
Certified By:
Ma~12'200l
.4 (J!~
Signalure
GE!orge Chaposky
Type Name J Jer:
ACCURACY INSPECTION TEST
Test Results'
Constant
Absolute
Difference
A. 100 OJo .1O'Vo 000 'Vo
B. 102 'Vo .10'70 002 'Vo
-
C. 1()() 'Vo .IOOJo 000 'Vo
D. 099 'Vo" .1O'Vo 001 ".'Vo
'.
E. 101 'Vo .10'Vo 001 'Vo
,
TOTAL 004
A VERAGE DEVIATION = Tolal . 004
5.0
'Vo
:; .-.1lD.O..- 070
"
NOTE: A"" ENTRtES MUST llE TYI'EIl.
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STATE'S
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ADOmONAL INFORMATION AND/OR REMARKS
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\-- CUMBERLAND COUNTY DUI DEPT.
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DAVID M. FRANKLIN,
PETITIONER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-2951
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this qti day of
~
,2001, the
Department having requested that the above-mentioned matter be continued because Agent
Ralph Richwine, a necessary witness for the Department, is unavailable to testify on July 27,
2001, and without objection ofthe continuance by the petitioner, the hearing in the above
referenced matter is CONTINUED and RESCHEDULED for the ~ day of
a-u 'j~ , 2001, at q; 6'0 ~.m., in Courtroom Number 4 in the Cumberland
County Courthouse, Carlisle, P A.
BY THE COURT
DISTRIBUTION: ~ '
George Kabusk, Esquire, Commw. of Penna., Dept. of Trans., Office of Chief Counsel, ~ :
Riverfront Office Center-3rd Floor, 11 01 South Front Street, Harrisburg, P A 171 04-2516 1-lnOI '
Peter B. Foster., Esquire, 121 South Street, Harrisburg, PA 17101 '-t"""-
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-, '-~ ~",
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
.
DAVID M. FRANKLIN,
Appellant
dl: OJ- )/10-' {!.A ' II ( I
v.
,
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
No. 2242 C.D. 2001
ORDER
NOW, October 3,2001, it appearing that the trial court's decision
was entered August 24, 2001, the last day to appeal therefrom was
September 24, 2001, and that the notice of appeal in this matter was filed
September 26, 2001, the above appeal is hereby dismissed as untimely filed.
See Pa. RAP. 903(a).
BY THE COURT:
~~c~
SJ.
Cert"ied 1rom \he RecoW
OCi 0 4: 2001
and owet eat
f;.iiia~~"''iill<i~_!ifiilWlld>~iiiI~~Wj~'ll~,,-1!MflO'$''''''I.M-~''''lll<-i_'''~~~ "
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Cumberland County Prothonotary's Office
Civil Case Inquiry
2001-j02951 FRANKLIN DAVID M (vs) PENNSYLVANIA COMMONWEALTH OF
Page 1
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment...... .00
Judge Assigned:
Disposed Desc. :
------------ Case Comments -------------
Filed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
5/15/2001
2:39
0/00/0000
0/00/0000
********************************************************************************
General Index Attorney Info
FRANKLIN DAVID M
1311 NORTH 21ST STREET
HARRISBURG PA 17109
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
POBOX 68693
HARRISBURG PA 17106 8693
APPELLANT
FOSTER PETER B
IBO(tJ bVCv~ has
-f1[e.,
APPELLEE
********************************************************************************
* Date Entries *
********************************************************************************
5/15/2001
5/18/2001
7/09/2001
8/24/2001
9/26/2001
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE - PETITION FOR REVIEW OF
ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING
PRIVILEGE
-------------------------------------------------------------------
ORDER DATED 5/18/01 - IN RE PETITION FOR REVIEW OF SUSPENSION OF
OPERATING PRIVILEGES - HEAING DE NOVO IS GRANTED AND SET FOR 7/17/0
7/17/01 AT 10 AM IN COURTROOM 4 - BY THE COURT KEVIN A HESS J
COPIES MAILED 5/18/01 RKS
-------------------------------------------------------------------
ORDER - DATED 7/9/01 - THE DEPT HAVING REQUEST THAT THE ABOVE
MENTIONED MATTER BE CONTINUED BECAUSE AGENT RALPH RICHAWINE A
NECESSARY WITNESS FOR THE DEPT IS UNAVAILABLE TO TESTIFY ON 7/27/01
AND WITHOUT OBJECTION OF THE CONTINUANCE BY THE PETITIONER THE
HEARING IN THE ABOVE REFERENCE MATTER IS CONTINUED AND RESCHEDULED
FOR 8/23/01 AT 9:00 AM IN CR 4 IN THE CUMBERLAND COUNTY COURTHOUSE
CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 7/10/01
-------------------------------------------------------------------
ORDER - DATED 8/23/01 - AFTER HEARING THE COURT FINDING THE
TESTIMONY OF THE PETITIONER BE CEDIBLE AND FINDING FURHTER THAT
AEQUATE MEASURES WERE NOT TAKEN TO EXPLAIN TO HIM THE PROPER
METHOD OF TAKING THE BREATHALYZER TEST THE APPEAL OF DAVID M
FRANKLIN IN THE SUSPENSION OF THE DRIVERS LICENSE IS SUSTAINED
AND THE SUSPENSION OF THIS DRIVERS LICENSE IS VACATED - BYTHE COURT
KEVIN A HESS J COPIES MAILED 8/24/01
-------------------------------------------------------------------
NOTICE OF APPEAL TO COMMONWEALTH COURT OF PENNSYLVANIA FOR ORDER
~F_C~U~T_T~~ ~A~ ~I~E~ ~N_8Li~fO~NTR~Y ~I~O~H: : ~I~E_E~Q_ _ _ _ _
********************************************************************************
* Escrow Information *
* Fees & Debits Beq Bal Pvmts/Adi End Bal *
*****************************************~**************************************
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
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
APPEAL
********************************************************************************
* End of Case Information *
********************************************************************************
,
t:
"
,
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DNISION
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
~ "~,,
'-<
, " .~
. ':-",,,,,,,,,,',:i
DAVID M. FRANKLIN,
Appellee
vs.
COMMONWEALTH OF PENNSYL VANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
}
}
}
}
}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 01-2951 Civil
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 August 23, 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.
l,;I /).".'7
("\ /~:Ji /7
\ V/jiMA .) /1...-4d
TIMOTHY . WILE
Assistant Counsel In-Charge
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 171 04-2516
(717) 787-2830
,
P~510
I
,
2001-0"2951
,
t " ,I
Cumberland county Prothonotary's Office
Civil Case Inquiry
FRANKLIN DAVID M (vs) PENNSYLVANIA COMMONWEALTH OF
d ~ -d -:. .
Page
1
"I
Reference No. . :
Case Type.....: APPEAL - LICENSE SUSP
Judgment.. . . . . . . 00
Judge Assigned:
Disposed Desc.:
------------ Case COmments -------------
Filed. . . . . . . . :
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
5/15/2001
2:39
0/00/0000
0/00/000"0
********************************************************************************
General Index Attorney Info
FRANKLIN DAVID M APPELLANT FOSTER PETER B
1311 NORTH 21ST STREET
HARRISBURG PA 17109 ,.
PENNSYLVANIA COMMONWEALTH OF APPELLEE
DEPARTMENT ,OF TRANSPORTATION
POBOX 68693
HARRISBURG PA 17106 8693
********************************************************************************
* Date Entries *
********************************************************************************
5/15/2001
5/18/2001
7/09/2001
8/24/2001
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - -
APPEAL FROM SUSPENSION OF DRIVERS LICENSE - PETITION FOR REVIEW OF
ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING
PRIVILEGE
-------------------------------------------------------------------
ORDER DATED 5/18/01 - IN RE PETITION FOR REVIEW OF SUSPENSION OF
OPERATING PRIVILEGES - HEAING DE NOVO IS GRANTED AND SET FOR 7/17/0
7/17/01 AT 10 AM IN COURTROOM 4 - BY THE COURT KEVIN A HESS J
COPIES MAILED 5/18/01 RKS
-------------------------------------------------------------------
ORDER - DATED 7/9/01 - THE DEPT HAVING REQUEST THAT THE ABOVE
MENTIONED MATTER BE CONTINUED BECAUSE AGENT RALPH RICHAWINE A
NECESSARY WITNESS FOR THEDEPT IS UNAVAILABLE TO TESTIFY ON 7/27/01
AND WITHOUT OBJECTION OF THE, CONTINUANCE BY THE PETITIONER THE
HEARING IN THE ABOVE REFERENCE MATTER IS CONTINUED AND RESCHEDULED
FOR 8/23/01 AT 9:00 AM IN CR 4 IN THE CUMBERLAND COUNTY COUR~HOUSE
CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 7/10/01
-------------------------------------------------------------------
ORDER - DATED 8/23/01 - AFTER HEARING THE COURT FINDING THE
TESTIMONY OF THE PETITIONER BE CEDIBLE AND FINDING FURHTER THAT
AEQUATE MEASURES WERE NOT TAKEN TO EXPLAIN TO HIM THE PROPER
METHOD OF TAKING THE BREATHALYZER TEST THE APPEAL OF DAVID M
FRANKLIN IN THE SUSPENSION OF THE DRIVERS LICENSE IS SUSTAINED
AND THE SUSPENSION OF THIS DRIVERS LICENSE IS VACATED - BYTHE COURT
~~I~ ~ ~E~S_J_C~P~E~ ~~L~DLf~f4fu&fRY _ _ _ _ _ _ _ _ _ _ _ _ _ _
*************************************************"*******************************
* Escrow Information *
* Fees & Debits Beq Bal P~ts/Adl End Bal *
********************************~********~**************************************
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
JCP FEE
35.00 35.00
.50 .50
5.00 5.00
5.00 5.00
------------------------
45.50 45.50
.00
.00
.00
.00
------------
.00
********************************************************************************
* End of Case Information *
********************************************************************************
J
Request 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-. ~ liJ,
TMOTHY . WILE -
Assistant Counsel In-Charge
Appellate Section
Riverside Office Center - Third Floor
11 0 I South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
~ '''':'
""" , ~..;.
"~ .,~",,~i
,..
.
I COMMONWEALTH OF PENNSYLV ANlA
DEPARTMENT 0 F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DNISION
BY: TIMOTHYP. 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
DAVID M. FRANKLIN,
Appellee
vs.
}
}
}
}
}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P A
COMMONWEALTH OF PENNSYLV ANlA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
NO. 01-2951 Civil
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:
First Class Mail; Postage Pre-Paid;
Addressed as Follows:
Judge Kevin A. Hess
Cumberland County Courthouse
I Courthouse Square
Carlisle, P A 17013
Court Reporter
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
Peter B. Foster, Esquire
AU. for Appellee Franklin
121 South Street
Harrisburg, P A 1710 1
~~!~
'J T T P. WILE
Attorney for Department of Transportation
Date: September 10, 2001
J;dJ,1!1ihli~illl,;;"J..""<!'I"'.d"-"''-'f"'''''''W''';li'!;"aJ~<""",<!!a!li:O.J!~,,,,,mlJ;;~1i"i-""":",;..f_=;_'_*K""''''';Ch'''-'fL"_-'oj;"..,c',''';&d""';<jh,<,,,,,~iliIIllIbt!Iilli!l!iil!i!~j!~~JI;i:M,""~_i_l1i""~i!_",,-"'-"
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DAVID M. FRANKLIN,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
01-2951 CIVIL TERM
LICENSE SUSPENSION APPEAL
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Thursday, August 23, 2001,
in Courtroom Number 4.
APPEARANCES:
PETER B. FOSTER, Esquire
For the Petitioner
TERRENCE M. EDWARDS, Esquire
For PennDOT
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INDEX TO WITNESSES
FOR THE RESPONDENT
DIRECT
CROSS REDIRECT
Ptl. Timothy J. Hutcheson 4 10
Ralph M. Richwine
13
19
25
FOR TBE PETITIONER
David M. Franklin
27
30
INDEX TO EXHIBITS
FOR TBE RESPONDENT MARKED ADMITTED
Ex. No. 1 - chemical testing
warnings 7 13
Ex. No. 2 - calibration &
accuracy Intoxilyzer 5000 15 26
Ex. Nos. 3 & 4 - breath
test tickets 16 26
2
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MR. EDWARDS:
MR. FOSTER:
THE COURT:
MR. EDWARDS:
Good morning, Your Honor.
Good morning.
Good morning.
May it please the Court, Your
5 Honor, I am Terrence Edwards, Office of General Counsel,
6 representing the Commonwealth of Pennsylvania, the
7 Department of Transportation, Bureau of Driver Licensing in
8 this matter. To my left is Theresa Kinsinger-Horvath, who
9 is a certified legal intern, who is working for the
10 Department of Transportation, and is currently awaiting the
11 results of the Bar exam. We are waiting with her. We hope
12 she will be joining us, Your Honor.
13 THE COURT: Been there, done that.
14 MR. EDWARDS: A thrilling time.
15 THE COURT: Yes, indeed.
16 MR. EDWARDS: And with that, Your Honor, I
17 will begin our case.
18
19
20
THE COURT: Very well.
MR. EDWARDS: Thank you, Your Honor.
THE COURT: Anything you want to say before
21 we get started?
22 MR. FOSTER: No, Your Honor.
23
24
THE COURT: Very well.
MR. EDWARDS: Your Honor, this is a chemical
25 refusal case under Section 1547(b) (1) of the Vehicle Code.
3
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1 THE COURT: I read the petition.
2 MR. EDWARDS: May I call at this point
3 Officer Timothy J. Hutcheson.
4 Whereupon, PTL. TIMOTHY J. HUTCHESON,
5 having been duly sworn, testified as
6 follows:
7 DIRECT EXAMINATION
8 BY MR. EDWARDS:
9 Q Good morning, Officer Hutcheson?
10 A Good morning, sir.
11 Q Please state your full name and spell your
12 last name?
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25
A
Q
A
Q
A
Q
Timothy Joseph Hutcheson, H-u-t-c-h-e-s-o-n.
And by whom are you employed?
West Shore Regional Police Department.
And how long have you been employed?
With West Shore it has been two years.
And did you have any experience before that?
A Yes. I was employed with Middlesex Township
Police Department for three years.
Q And you are a police officer?
A Yes, sir.
Franklin?
Q
Officer Hutcheson, do you recognize Mr.
A
Yes, sir, I do.
4
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2 court?
3
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5
dark suit.
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Would you please point him out for the
A
He is seated to the left of counsel in the
MR. EDWARDS: Your Honor, may the record
6 reflect that the witness has pointed to Mr. Franklin.
7 BY MR. EDWARDS:
8
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15
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17
18
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20
21
Q
On March 31st, 2001, March 31st of this
year, did you have occasion to come into contact with Mr.
Franklin?
A Yes, I did.
Q Can you please describe the circumstances
under which you came into contact with him?
A Yes, sir. It was during a traffic stop
after a violation of a failure to stop for a red light in
the Borough of Wormleysburg.
22 Mr. Franklin?
23
Q
A
Q
A
Q
About what time was this?
This was at approximately 0330 hours.
And that was on the 31st of March?
Yes, sir.
What if anything happened after you stopped
A
I spoke to Mr. Franklin, obtained his
24 Pennsylvania driver'S license, detected a strong odor of an
25 alcoholic beverage on his breath when he spoke, saw his
5
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1 eyes were red and glassy, asked him to perform standard
2 field sobriety tests.
3 Q When you first observed the odor of alcohol
4 and the glassy eyes, was he still in the vehicle?
5
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Q
A
Q
A
Yes, sir, he was.
Was he operating the vehicle?
Yes, sir, he was.
Was anyone with him?
No, sir.
Q Did you ask him to exit the vehicle then to
perform the field sobriety test?
A Yes, sir, I did.
Q What if anything happened after that?
A He failed to perform the test. And he was
placed under arrest for driving under the influence.
Q Did you tell him you were placing him under
arrest?
A
Yes, sir, I did.
Q And what did you tell him you were placing
him under arrest for?
A
For driving under the influence of alcohol
22 or a controlled substance.
23
24
Q
A
What if anything happened after that?
He was taken to the Central
25 Processing -- well, the West Shore Booking Center in Lower
6
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1 Allen Township.
2 Q And who took him there?
3
4
5
A
Q
A
I took him there.
What if anything happened after you arrived?
I read to him the standard refusal form
6 supplied by PennDOT. I read that on video. And then I
7 released him to Agent Richwine for further breath testing.
8 MR. EDWARDS: Your Honor, may I approach the
9 witness?
10 THE COURT: Certainly.
11 MR. EDWARDS: Your Honor, I am handing
12 Officer Hutcheson what's been marked as State's Exhibit No.
13 1, and ask you just to review that for a second.
14 BY MR. EDWARDS:
15
16
Q
A
Are you familiar with that document?
Yes, sir, I am.
17 Q And what does that appear to you to be?
18 A This is the Chemical Testing Warnings that I
19 read to the defendant and had him sign on that date that he
20 understood it.
21
22
Q
A
And which warnings did you read to him?
I read to him Sections 1, 2, 3, 4. Under 4
23 it was a, band c.
24
25
Q
A
And you read all of those to him?
Yes, sir, I did.
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What was his response?
He understood, and he said he would comply.
And he did sign it then?
Yes, sir, he did.
What if anything happened after that?
6 A Agent Richwine attempted to give him the
7 breath test, which he failed to give two samples
8 MR. FOSTER: I am going to object unless
9 this officer was present during that.
10
11
THE COURT: I am assuming he was.
MR. EDWARDS: He was present, Your Honor.
12 THE WITNESS: Yes, sir. I was present.
13 MR. EDWARDS: Unless the objection is
14 sustained, I was going to ask what your observations were.
15
16
17
THE COURT: No. Go ahead.
THE WITNESS: I observed the defendant to
attempt to give, two breath samples. When he did
give
18 he would blow into the machine after Agent Richwine
19 specifically told him how to do it. I saw him blow into
20 the machine. And his cheeks would puff out. And he would
21 strain to blow. There was not a constant tone, which means
22 there was air going into the machine. The machine timed
23 out. There wasn't a significant amount of air for a
24 sample.
25 BY MR. EDWARDS:
8
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Q
Have you had occasion to observe --
MR. FOSTER: I am going to object and ask
3 that that testimony be stricken unless there is a
4 foundation that he is an expert in how to give this test.
5 THE COURT: That's overruled. He is just
6 saying what he observed. Overruled.
7 MR. EDWARDS: Thank you, Your Honor.
8 BY MR. EDWARDS:
Q Have you had occasion to observe the giving
of breath tests under circumstances like this to other
people?
A Yes, sir.
Q Are you familiar with how one properly
completes one of these breath tests?
A
Q
Yes, sir, I am.
And do you have any idea how many times you
have watched this?
A Oh, since the two years I have been there,
at least twenty times.
Q And you had occasion then to see people
complete the test properly?
A
Yes, sir.
23 Q Based upon your observations, did it appear
24 to you that Mr. Franklin was trying to complete the test
25 properly?
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MR. FOSTER: I am going to object to that.
THE COURT: Overruled.
BY MR. EDWARDS:
Q Did he appear to be trying to give -- to
complete the test properly?
A No, sir.
MR. EDWARDS: No further questions, Your
Honor.
CROSS-EXAMINATION
BY MR. FOSTER:
Q Officer, did Mr. Franklin cooperate in
giving the field tests?
A The standard field sobriety tests?
Q Yes.
A Yes, sir.
Q Now, when you say that his cheeks puffed up
when he blew into the machine, isn't that a sign that he
was in good faith trying to blow into the machine following
the operator's instructions? In other words, when you are
blowing into the machine, wouldn't it be normal for your
cheeks to puff up?
A I have never seen anybody do that, that has
done it properly, to see the cheeks blowout like they
were. I have never seen that. I have seen people when
they blow you don't see their checks puff out. You see
10
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1 them strain, but you don't see big cheeks puff out.
2 Q It is your testimony because his cheeks were
3 puffing out that he was not in good faith blowing into the
4 machine?
A
Plus there was not a steady tone of air
coming through. You couldn't hear the steady tone that you
hear when people blow through the machine. It makes a
tone. It would blow just a little bit and then it would
stop. And then he would sit there with his mouth over it,
and just his cheeks were just puffed out.
Q How far away from the machine were you
located when he was blowing into it?
A I would say a desk two or length. The
machine was on a desk. And then there was a little bit of
space and then another desk, and I was behind that. So two
desks widths, ten feet at the most.
Q What is the noise that this machine makes?
A It is a tone.
Q What kind of a tone?
A A beep -- a steady tone. B-e-e-e-e-e-p when
you blow into the machine.
Q Did you hear that tone when he was blowing
into the machine?
A
When he first started to blow, yes, and then
25 he would stop.
11
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Then he would stop?
A
The tone would stop, yes. And you could
3 tell he wasn't blowing.
4
5
6
Q
How could you tell that?
A
Because there was no tone.
Q
You don't know whether the machine was
7 defective or not, do you?
8
9
A
No, sir, I don't.
Q
Okay. And there was no verbal refusal to
10 blow into the machine, was there?
11
12
A
No, sir.
Q
And when he was instructed by the operator
13 to blow into the machine, he blew into the machine, didn't
14 he?
15
16
17 operator?
18
19
20
21
22 Hono:t:".
A
Yes, but not correctly.
Q
Are you certified as a Breathalyzer
A
No, sir.
MR. FOSTER: That's all I have.
THE COURT: Anything else?
MR. EDWARDS: No further questions, Your
23 Your Honor, at this time we call booking
24 agent Ralph Richwine.
25
12
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3
Whereupon, RALPH M. RICHWINE, III, having
been duly sworn, testified as follows:
MR. EDWARDS: Your Honor, before I start
4 with Agent Richwine, I would like to offer State's Exhibit
5 1 into evidence. That's the chemical refusal form.
6
THE COURT: Unless there is objection, we
7 will admit it.
8 DIRECT EXAMINATION
9 BY MR. EDWARDS:
10 Q Good morning, Agent Richwine.
11 A Good morning.
12 Q Please state your full name and spell your
13 last name?
14
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18
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20
21
22
23
24
25
A Ralph Maurice Richwine, III.
R-i-c-h-w-i-n-e.
Q And by whom are you employed?
It is
A
Cumberland County District Attorney's
Office, Central Processing Department.
Q How long have you been employed in that
position?
A One year and two months.
Q What generally are your duties?
A Processing criminals that police officers
bring in off the street, the arrests they make, processing
DUI's.
13
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Q
When you say processing DUI's, what does
2 that involve?
3 A I give them a breath test, their standard
4 field sobriety tests, entering information into the
5 computer, photographing and fingerprinting.
6 Q Do you recognize Mr. Franklin?
7
8
9
10
A
Q
A
Yes, sir, I do.
Could you point him out, please?
Right over there.
MR. EDWARDS: Your Honor, let the record
11 reflect that Agent Richwine has pointed to Mr. Franklin.
12 BY MR. EDWARDS:
13 Q On March 31st, 2001, did you have occasion
14 to come into contact with Mr. Franklin?
15
16
17
18
19
A
Yes, I did.
Q Under what circumstances did you come into
contact with him?
A
DUI arrest.
Officer Hutcheson had brought him in for a
20 Q Have you had any training in the use of an
21 Intoxilyzer machine?
22
23
24
A
Q
A
Yes, sir, I have.
And what training was that?
Officer Meiss was our trainer. And that
25 took place last July -- or July a year ago, July 13th. I
14
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1 have a certificate here.
2 Q Have you been properly certified to operate
3 the Intoxilyzer machine?
9
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22
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7
8 5000 machine?
witness?
A
Q
A
Q
Yes.
And which model of Intoxilyzer machine?
Intoxilyzer 5000.
That evening were you using an Intoxilyzer
A
Yes, sir, I was.
MR. EDWARDS: Your Honor, may I approach the
THE COURT: Yes.
MR. EDWARDS: Your Honor, I have an original
that I am going to need back. I made copies of it, but
this has been marked as State's Exhibit NO.2 on the copy.
BY MR. EDWARDS:
Q And I ask the witness just to take a look at
that for a second. Agent Richwine, are you familiar with
that document?
A Yes, sir.
23 instrument.
24
Q
A
What does that purport to be?
This is the calibration and accuracy of the
Q
And this is the same instrument you were
25 using that night?
15
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Yes. That's what's on the serial number
that's on the tickets.
Q In other words, the serial number on the
tickets coordinates to the certificate you have there?
A
Q
A
Q
A
Yes, sir.
Was that machine properly calibrated?
Yes, sir, it was.
Was it properly certified for its accuracy?
Yes, sir.
Q At the time you administered the breath test
to Mr. Franklin, was the machine operating properly?
25 Intoxilyze~.
A
Yes, sir.
MR. EDWARDS: Your Honor, I would like to
14 approach again.
15 BY MR. EDWARDS:
16 Q I am going to hand the witness two
17 documents. And they are both originals again, Your Honor.
18 I have copies. One will be marked as State's Exhibit 3,
19 and one is State's Exhibit 4. I am going to give him 3 and
20 leave 4 right there.
21 Are you familiar with that document?
22
23
24
A
Q
A
Yes, sir.
And what does that purport to be?
This is the ticket that prints out of the
16
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Q
And how did that ticket come into existence?
2
A
This comes out from the first time we asked
3 Mr. Franklin to give us a breath test, in which he failed
4 to give us a proper breath test. So we ended up with an
5 invalid test.
6
Q
Now, the other ticket that I have there,
7 which is State's Exhibit 4, can you take a moment to review
8 that as well? And what does that purport to be?
9 A We offered him to take the test the second
10 time, to give him a chance to re-do it. He still failed to
11 blow properly. And we come out with a deficient sample.
12 Q I see on there that there are some numbers.
13 Can you explain what those numbers mean?
14
A
Okay. The first one, the subject test, was
15 a .144. But if you see, it has as an asterisk beside it.
16 That asterisk means that it was a deficient sample. What
17 that is he didn't blow long enough. You have to keep the
18 tone going until a fourth digit comes up. And then I tell
19 the individual to stop blowing. Then we have the
20 sufficient sample. In this particular case he didn't keep
21 the tone going.
22
Q
How about the number beneath that?
23
A
That's the same thing, same as the first --
24
Q
Again, didn't blow long enough to come up
25 with a sufficient sample?
17
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A Right.
MR. EDWARDS: Your Honor, I have a
videotape. It is about twenty minutes long. And if Your
Honor would permit me, I will go ahead and play it.
THE COURT: That's fine. Though I think the
germane portion would be where he was attempting to take
7 the breath test, am I right?
8 MR. EDWARDS: And that's what most of it is.
9 The beginning of the tape is just the reading of the
warnings that Officer Hutcheson has testified to. And as
Agent Richwine has just testified, there were two tests,
Your Honor.
THE COURT: Okay.
MR. EDWARDS: That's why it is such a long
videotape.
(Whereupon, the videotape was played.)
BY MR. EDWARDS:
Q Agent Richwine, there was somebody off
camera who was speaking to Mr. Franklin. Do you know who
that was?
A
Q
Officer Hutcheson was back there.
There was someone who was telling him how to
23 do the test. Do you know who that was?
24 A Oh, that was me, yes.
25
Q
You videotape. Is that a fair and accurate
18
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10 BY MR. FOSTER:
11
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representation of the testing process that you administered
that night to Mr. Franklin?
A Yes, it was.
Q Did Mr. Franklin ever properly complete a
breath test that evening?
Hutcheson
A
No.
MR. EDWARDS: No further questions, Your
Honor.
CROSS-EXAMINATION
Q
A
Q
Officer, may I see your certification?
These are the two for the Intoxilyzer 5000.
Officer, this calibration test was given on
14 February 16th, is that right, of this year?
15
16
17
18
19
A
You mean for the certificate that Officer
Q Exhibit 2, which says calibration, signed by
Katherine L. Shrauder?
A Yeah. Whatever date is on there.
20 Q Is Exhibit 2, and it says calibration
21 February 16th, '01 --
22 A Right.
23 Q This testing of Mr. Franklin was given on
24 March 31st, wasn't it?
A
Right.
25
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Q So the calibration test was not given within
thirty days of Mr. Franklin's testing?
A The calibration only needs to be done once a
4 year. It is the accuracy that has to be done within thirty
5 days. And you will see that's the one to the right.
6 Q Let me ask you this. Do you have a
7 simulator solution certificate from the manufacturer for
8 this machine?
9
A
I don't. That's the responsibility of the
10 technician. I am just a trained operator.
11 Q Do you know if there is a simulator solution
12 certificate for this machine?
13
A
Not the solution certificate. I don't know
14 of that, no.
15 Q Do you know if there is an ampule
16 certification for this machine?
17
A
No. I don't know. That's all taken care of
18 by the technician.
19 Q Did you test this machine within twenty-four
20 hours of giving Mr. Franklin his test?
21 A The instrument is tested everyday at the
22 beginning of the shift.
23
24
25
Q
A
Q
By whom?
For that particular day I done it myself.
What was the result of that test within that
20
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1 twenty-four hour period that you gave, that you conducted?
2 A I don't recall, but that would show on the
3 second ticket. The calibration check was a .094, which
4 means it was good.
5 Q Was there any test given before the testing
6 of Mr. Franklin within the twenty-four hour period?
7 A I don't recall that.
8 Q Isn't it possible that this machine was
9 defective, and that's why it didn't give an accurate
10 reading?
11
A
The instrument was operating the way it was
12 supposed to.
13 Q Was there a waiting period of twenty minutes
14 before the test was given?
15
A
Yes, sir, there was.
16 Q Now, you couldn't tell if he was giving a
17 good faith effort to blow into the machine or not, could
18 you?
19
20
21
22
23
24
25
A
I see enough of the~e done to know that you
don't -- it is very simple to blow into this instrument.
Q Well, let me ask you this. Apart from the
sounds of the machine, didn't it appear as if Mr. Franklin
was making a good faith effort to blow into the machine?
A No. It appeared to me he was keeping all
the air in his mouth. If you are blowing into the machine
21
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1 correctly, it is going to be like blowing up a balloon.
2 Your cheeks will come in, and the air is all concentrated
3 into the tube. His air was concentrated into his mouth.
4 That's why it was puffed out. And any little bit of air
5 that was coming out was coming around the corner. It is
6 very easy to blow into this instrument unless you have got
7 severe, severe health problems.
8
Q
Didn't you say on the tape that he was
9 trying too hard to blow into the machine?
10 A What I meant by that was by his checks being
11 puffed out.
12 Q Has this machine ever proven to be defective
13 since you have been operating it?
14 A I couldn't say that on this particular
15 machine. We have had some that have been defective. And
16 what we do is put them out of service immediately and call
17 the technician.
18
Q
You don't know whether or not this machine
19 has been defective before or after this test was given?
20
A
No, sir. I do not. But I just know at that
21 time it was not defective.
22
23
24
25
Q
How long have you been operating this
machine?
A
Q
I have been operating Intoxilyzers for --
This particular machine --
22
1
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A
Well, I have no idea. We don't keep track
2 of that, because one time I work at one center, one time I
3 work at another center. There is two Intoxilyzers at each
4 center.
5 Q Would it be fair to say that Mr. Franklin
6 was fully cooperative during this testing procedure?
7
A
He was cooperative in some respects, but I
8 don't think he was cooperative as far as blowing into the
9 instrument. He did not follow the instructions.
10 Q And what you are saying is you travel
11 between various booking centers?
12
13
14 occasionally?
15
16
A
Q
Yes, sir.
And this is a machine that you use
A
Q
Yes, sir.
And you are unable to say whether it has
17 been defective on other occasions or not?
18 A That particular instrument I don't know, no.
19 But whether it was, it is serviced, it would not be -- it
20 would not have been in the center in service if it were
21 defective, because we have a technician that takes care of
22 that.
23
Q
These ampule tests and simulator solution
24 tests, wouldn't they show whether or not it was defective?
25
A
When we give the test at the beginning of
23
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the shift, if we have a low reading, that means it is time
to change the simulator solution.
Q As I understand it, you didn't give a test
4 at the beginning of the testing of Mr. Franklin? You gave
5 it after the test?
A
No, no. I gave one at the beginning of the
shift.
Q
I see. And what was the results of that
test?
A I don't know. I would have to look on
my -- we have what's called a daily activity log. That's
where I record that, but, like I said, it would be similar
to what's on the ticket here, the .094.
Q You don't have that log here with you today?
A
No, sir, I don't.
Q Are you able to remember whether or not the
machine passed the test or not?
A If it would not have passed, I would have
changed the solution. That's the idea of doing the test.
So regardless, if it would have passed or not, I would have
put new solution on. That would have brought it up to the
right calibration.
MR. FOSTER: That's all I have.
MR. EDWARDS: Very briefly, Your Honor.
24
6
7
8
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18 Honor.
. ,
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1 REDIRECT EXAMINATION
2 BY MR. EDWARDS:
3 Q On page three of what's been marked as
4 State's Exhibit 2, and that's the certificate of accuracy,
5 do you have that in front of you?
A
Q
No, I don't.
What is page three?
A That's the accuracy certification that our
technician does every month.
Q And does that show that this machine was
certified properly on the 12th of March, 2001?
A Yes.
Q And was that w~thin thirty days of the date
on which you administered the test to Mr. Franklin?
A
Q
Yes, sir.
Thank you.
MR. EDWARDS: No further questions, Your
MR. FOSTER: Nothing further, Your Honor.
20 BY THE COURT:
21 Q Agent Richwine, I noticed in this particular
22 case, I have watched some of these training sessions, and I
23 have watched more than one of these videotapes. But I
24 noticed that he had virtually the entire mouth piece in his
25 mouth.
25
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1
2
3
4
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A
Q
A
Q
Yes.
Is that common?
No. That's why I --
Usually the persons blows into the -- the
5 way you get it into the tube is to have the little end in
6 your mouth --
7
8
9
10
11
A
That's what I was trying to tell him.
Q With the bulb outside of your mouth.
how you get the air in the machine.
A Right.
That's
Q
You didn't explain that to him?
12 A Yes. I did try to tell him that. It is on
13 the tape. I tried to tell him to pull it out further.
14 Q But he didn't?
15
16
17
18
A No.
Q Why didn't you pull it out and show him how
far it had to be out?
19 explained.
20
21
A
I explained everything to him. It was
THE COURT:
MR. EDWARDS:
Thank you. You can step down.
Your Honor, at this time I
22 would like to offer State's Exhibits 2, 3 and 4 into
23 evidence.
24
25
THE COURT: We will admit them.
MR. EDWARDS: And with your permission, Your
26
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1 Honor, I am going to substitute copies for them.
2
3
4 Your Honor.
5
6
7 Honor.
8
9
THE COURT: Yes, of course.
MR. EDWARDS: I believe 1 is already in,
THE COURT: Yes.
MR. EDWARDS: The Commonwealth rests, Your
THE COURT:
MR. FOSTER:
Very well.
We would like to call Mr.
10 Franklin, Your Honor.
11 Whereupon, DAVID M. FRANKLIN, having been
12 duly sworn, testified as follows:
13 DIRECT EXAMINATION
14 BY MR. FOSTER:
15
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25
Q
A
Q
A
Q
A
Q
A
Q
A
Q
State your full name for the record, please?
David Michael Franklin, F-r-a-n-k-l-i-n.
How old are you, Mr. Franklin?
Excuse me, sir?
What is your age, sir?
Forty-two.
And where do you work?
prudential Financial.
And what do you do for them?
I am an agent.
Now, on this date, March 31st of this year,
27
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1 do you recall being stopped by Officer Hutcheson?
5
6
7
8
9
10
11
12
13
14
15
16
17
2
3
4 tests?
A
Q
Yes, sir.
Did you cooperate fully in giving the field
A
Q
Yes, sir.
You were then taken to the Booking Center?
A Yes, sir.
Q And at the Booking Center did you agree to
take the Breathalyzer 5000 test?
A
Q
A
Yes, sir.
Did you fail to cooperate in anyway?
No, sir.
Q Are you used to receiving orders and taking
orders, Mr. Franklin?
A
Q
A
Yes, sir.
Why is that?
I am retired from the Marine Corps, where I
18 spent twenty years, six months.
19 Q Do you need your motor vehicle to perform
20 your job for Prudential?
21
22
A
Q
Yes, sir.
Why is that?
23 A Well, everything we do is outside of the
24 office basically. Whereas, I would have to go see all
25 clients in the normal routine of my duties.
28
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1
2
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5
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7
8
9
Q All right. Now, you have heard the
testimony of Mr. Richwine, is that correct?
A Yes, sir.
Q
Okay. Did you try to blow into the machine
as hard as you could?
A Yes, sir.
Q Did you make any attempt to cheat the
machine or falsify the test?
A
No, sir.
10 Q Do you recall Officer Richwine telling you
11 not to place the whole mouth piece in your mouth but to
12 just blow into the tip of it, the end of it?
13
14
15
16
17
18
19
20
21
22
A
Well, I was following his instructions at
the time
Q What were his instructions?
A To place the plastic piece in my mouth and
blow through the tube.
Q The entire piece? What did he tell you
regarding that mouth piece?
A Just to place it in my mouth and blow into
it.
Q
What part of it, if any?
23 A Well, if I remember right, the plastic was
24 round, and it had like a straw-like cylinder sticking out
25 at one end. So what I did was place my mouth down on the
29
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1 cylinder and then blew through the tube.
2
Q
Did he ever tell you just to blow into the
3 straw portion of it?
4
A
He just said try to force the air through
5 that portion.
6
Q
Were you ever told anytime during this test,
7 and you had an opportunity to see it on tape, just to blow
8 into the tip of it, the straw portion of it, rather than
9 place the entire mouth piece in your mouth? Were you ever
10 told that?
11
A
Not that I recall, sir, but, no.
12
Q
Were you following his instructions?
13
A
Yes, sir.
14
Q
Did you blow into the machine as hard as you
15 could?
16
A
Yes, sir.
17
MR. FOSTER: Cross-examine.
18
MR. EDWARDS: Thank you.
19 CROSS-EXAMINATION
20 BY MR. EDWARDS:
21
Q
Mr. Franklin, you have heard Officer
22 Hutcheson testify that when he stopped you for the traffic
23 violation and you approached your vehicle, he smelled a
24 strong odor of alcohol on your breath?
25
A
Yes, sir.
30
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1
Q
You were drinking that night, is that
2 correct?
3
4
A
Yes, sir.
MR. EDWARDS: Thank you. No further
5 questions.
6
MR. FOSTER: Does the Court have any
7 questions of this witness?
8 THE COURT: No. Thank you.
9
10
11
12
MR. FOSTER:
THE COURT:
MR. EDWARDS:
You may step down.
Anything further?
Nothing from the Commonwealth,
Your Honor.
13 THE COURT: Okay. Care to make any
14 statements? I know there are some cases that deal with the
15 assessment of whether or not the person has made a good
16 faith effort to blow into the machine and talks about I
17 think the necessity to prove evidence of some sort of
18 illness or something if you claim not to be able to produce
19 a sample, but I don't sense that that's what Mr. Franklin
20 is telling me. I think he is telling me that he tried to
21 blow into the machine and it didn't go in. I think I know
22 why. Anything else?
23
24
25
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(Whereupon, Mr. Foster closed on
behalf of the Defendant.)
(Whereupon, Mr. Edwards closed on
behalf of the Commonwealth.)
THE COURT: Okay. We will take it under
6 advisement. Thank you.
7
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MR. EDWARDS: Thank you, Your Honor.
(End of proceedings.)
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CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the abovecause and that this is a correct transcript of
same.
~t~
Barbara E. Graham
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Od- I' Z4a I
Date
~
A. Hess, J.
Judicial District
33