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CHEMICAL TESTING WARNINGS AND REPORT OF
REfUSAL TO SUBMIT TO CHEMICAL TESTING AS
AUTHORI%ED BY OF THE VEHlCU! COPE
01257 6112
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67 g 77.24
DEPARTMENT OF TRANSPORTATION
Pt. I
(e) Instructions and curricula for Course B. Instruction shall be given by an
instructor approved jointly by the Department of Health and the Department
using a curriculum in compliance with Course B requirements.
(f) Certificates for Course B. Persons successfully completing Course B shall
be issued certificates as certified breath test operators qualified to operate only
Type B alcohol breath test equipment on which they actually received instruction
during the course of training.
(g) Exemption from Instruction.
(l) A person certified to administer alcohol breath tests with a particular
item of breath test equipment during the period between September 29, 1968,
and 'September 26, 1970, under the approved course of instruction certified by
the Secretary of the Department of Revenue, may continue to administer alco-
hol breath tests with the equipment without undergoing further instruction and
shall be considered a certified breath test operator under this subchapter.
(2) A person certified to administer alcohol breath tests with a particular
item of breath test equipment on November 5, 1977, under Equipment and
Instructions for Administering Chemical Tests and Making Chemical Analysis
for Alcoholic Content of Blood. I Pa.B. 288 (September 26, 1970) may con-
tinue to administer alcohol breath tests with the equipment without undergoing
further instruction and shall be considered a certified breath test operator under
this subchapter.
(3) A person certified by the Department or the State Police on December
22, 1984 to administer alcohol breath tests, conduct accuracy verifications or
inspections with a particular item of breath test equipment may continue to
perform the duties with the equipment without undergoing further instruction
and will be considered a certified breath test operator under this subchapter.
Source
The provisions of this ~ 77.23 adopted December 21, 1984, effective December 22, 1984, 14 Pa.B.
4599; readopted January 12, 1990, effective immediately and apply retroactively to December 22,
1989.20 Pa.B. 211. Immediately preceding text appears at serial pages (140060) to (140062).
g 77.24. Breath test procedures.
(a) Observation. The person to be tested with breath test equipment shall be
kept under observation by a police officer or certified breath test operator for at
least 20 consecutive minutes immediately prior to administration of the first alco-
hol breath test given to the person, during which time the person may not have
ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or
smoked. Custody of the person may be transferred to another officer or certified
breath test operator during the 20 consecutive minutes or longer period as long
as the person to be tested is under observation for at least 20 consecutive minutes
prior to initial administration of the alcohol breath test.
77-6
(216090) No.261 Aug. 96
Copyrighl e /996 Common...eu/lh of Pennsylvania
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Ch.77
ADMINISTERING CHEMICAL TESTS
67 ~ 77.24
(b) Procedures. Alcohol breath tests shall be conducted by a certified breath
test operator. Accuracy inspection tests and calibrations conducted using breath
test equipment shall be performed by a certified breath test operator. the manu-
facturer or its authorized representative or a person who has received comparable
training or instruction. Alcohol breath tests, accuracy inspection tests and calibra-
tions conducted using breath test equipment shall be performed in accordance
with accepted standard procedures for operation specified by the manufacturer of
the equipment or comparable procedures. The procedures for alcohol breath test~
ing shall include, at a minimum:
(I) Two consecutive actual breath tests, without a required waiting period
between the two tests.
(2) One simulator test using a simulator solution designed to give a read-
ing of .10%, to be conducted immediately after the second actual alcobol breath
test has been completed. The lower of the two actual breath test results will be
the result used for prosecution. The test results will be disregarded, and the
breath test device will be removed from service under ~ 77.25(b)(4) (relating
to accuracy inspection tests for Type A equipment) if one of the following
occurs:
(i) If the difference between the results of the two actual alcohol breath
tests is .02 or more, for machines read to the second decimal place, or .020
or more for machines read to the third decimal place.
(ii) If the simulator test yields a result less than, .09% or greater than
.I 0% when the breath test device is read to the second decimal place, or if
the simulator test yields a result less than .090% or greater than . I 09% when
the breath test device can be read to the third decimal place.
(c) Procedures for adjustment. Breath test equipment which fails the testing
under ~ 77.25(b) or subsection (b) shall be placed out of service and shall be
serviced, repaired and adjusted, as necessary, by the manufacturer or its autho-
rized representative or a person who has received comparable training or instruc-
tion prior to being placed back into service. In addition, the breath test device
shall be tested under subsection (b) prior to being placed back into service.
(d) Simulator solution certification. The manufacturer of simulator solution
shall certify to the test user that its simulator solution is of the proper concentra-
tion to produce the intended results when used for accuracy inspection tests or for
calibrating breath test devices. This certification shall be based on gas chromato-
graphic analysis by a laboratory independent of the manufacturer.
(e) Ampoule certification. The manufacturer of ampoules utilized in Type A
breath testing devices shall certify to the user that its ampoules will produce the
intended results when used for actual breath tests, accuracy inspection tests or for
calibrating breath test devices. The certification shall be based on laboratory test.
ing conducted by a laboratory independent of the manufacturer. The laboratory
testing shall employ generally accepted scientific methods sufficient to insure that
the ampoules conform to manufacturer specification.
77-7
(256717) No. 298 Sop. 99
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ORIGINAL
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
JAMES DOYLE, III
NO. 01-6027
vs.
COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION
BUREAU OF DRIVER
LICENSING
Oral deposition of DONALD
o
EDWARD RICHARDSON, taken on behalf of the
Plaintiff, in the Offices of Donald Edward
Richardson, Veterans Administration, Woodland
and university Avenue, Philadelphia,
Pennsyl vania, on Friday March 15, 2002
commencing at or about 10:00 a.m. before
Maureen Gallagher, Registered Professional
Reporter - Notary Public.
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B & R SERVICES FOR PROFESSIONALS, INC.
235 SOUTH 13th STREET
PHILADELPHIA, PENNSYLVANIA 19107
(215) 546-7400
B & R Services for Professionals, Inc.
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APPEARANCES:
MANCKE, WAGNER, HERSHEY & TULLY
BY: DAVID HERSHEY, ESQUIRE
2233 North Front Street
Harrisburg, pennsylvania 17110
(717) 234-7051
Counsel for Plaintiff
BY: GEORGE KABUSK, ESQUIRE
1101 South Front Street
Harrisburg, pennsylvania 17101
Counsel for Defendant, Department of
Transportation
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I..ND~X
WITNESS
DONALD EDWARD RICHARDSON
By Mr. Hershey
By Mr. Kada
~XHI..BI..T.s..
NO.
(NONE MARKED AT THIS TIME)
B & R Services for Professionals, Inc.
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DONALD RICHARDSON
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(It is stipulated and agreed
by and between counsel that the reading,
signing, sealing, filing and certification
of the within deposition be waived.)
DONALD EDWARD RICHARDSON,
having been duly sworn was examined and
testified as follows:
BY MR. HERSHEY,
Q.
Mr. Richardson, this is David Hershey
and I would like to ask you a few questions
regarding your diagnosis and treatment of
James Doyle, III.
Before we get to that I
would like to ask you some background
questions.
Could you state your name and your
professional address, please?
A.
Donald Edward Richardson, VA Medical
Center, University and Woodland Avenue
Philadelphia, Pennsylvania 19104.
Q.
Mr. Richardson, what is your title at
the Veterans Administration?
A.
Chief audiology and speech pathology
service.
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DONALD RICHARDSON
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Q.
How long have you held that position?
A.
Just under a year.
Q.
How long have you worked at the Veterans
Administration?
A.
Twenty-seven years.
Q.
Prior to the last year what was your
role at the Veterans Administration?
A.
I was acting chief of the service.
Q.
Of what service?
A.
Audiology and speech pathology services.
Q.
Can you give us just a very brief
description of your primary duties in your
current role at the Veterans Administration?
A.
I'm educated as a speech language
pathologist, and I'm heading up a clinic that
is a combination audiology and speech
pathology.
Q.
Did you complete high school?
A.
Yes.
Q.
Did you obtain any post high school
degrees?
A.
Yes.
Q.
Can you explain what those were?
A.
I have an under graduate degree,
a
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DONALD RICHARDSON
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bachelors degree in communication disorders
from the University of Vermont and a graduate
degree, a masters degree in communication
disorders from St. Louis University.
Q.
Do you have any professional
affiliations?
A.
I'm certified through the American
Speech Language Hearing Association and I hold
a Triple C which is a certification of
clinical competence.
And I'm licensed through
the State of Pennsylvania as a speech language
pathologist.
Q.
Do you actually see patients in your
role at the Veterans Administration?
A.
I do.
Q.
And is part of seeing patients treating
speech disorders?
A.
It's a combination of speech and!or
hearing disorders.
MR. HERSHEY:
For the record,
Your Honor, at this time we would offer
Donald Richardson as an expert witness in
the area of speech pathology and language.
BY MR. KADA:
B & R Services for Professionals, Inc.
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DONALD RICHARDSON
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Q. Mr. Richardson, this is George Kada.
I'm with the Department of Transportation.
What is a language pathologist?
A.
We're trained professionals in dealing
with communication disorders primarily as a
result of, I'm in the geriatric adult
population but as a result of stroke,
traumatic brain injury, acquired problems with
communications, stuttering.
So it is a full
gamut, in addition to training and speech
reading for the hearing impaired.
Q.
What is an audiologist?
A.
An audiologist is one who is trained in
assessing hearing status, hearing level,
hearing acuity.
So we work hand in hand
relative to communication disorders in
general.
Q.
Are you a medical doctor?
A.
No.
Q.
Do you make medical assessments?
A.
No.
Q.
Do you make
design treatment plans?
A.
Yes.
Q.
Would you do that under the authority of
B & R Services for Professionals, Inc.
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DONALD RICHARDSON
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a medical doctor?
A.
No.
Q.
Are you over seen by a medical doctor?
A.
No.
Q.
Do you work in conjunction with medical
doctors?
A.
Yes.
Q.
How is that, how do you work in
conjunction with medical doctors?
A.
We receive referrals either from ENT
specialists or primary care physicians.
MR. KADA:
No further questions.
BY MR. HERSHEY:
Q.
Mr. Richardson, did you have an
opportunity to meet and evaluate James Doyle,
III?
A.
Yes.
Q.
When was Mr. Doyle referred to you?
A.
April of 2000.
Q.
What were the circumstances surrounding
the referral?
A.
He had undergone a hearing aid
evaluation and had requested additional
training in aural rehabilitation.
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DONALD RICHARDSON
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Q.
When you say oral do you mean A-U-R-A-L?
A.
Yes.
Q.
When he was referred to you were you
provided with an audiogram?
A.
Yes.
Q.
What is an audiogram?
A.
It's a graphic representation of hearing
levels.
Q.
Who normally conducts that particular
test?
A.
The audiologist.
Q.
Is an audiogram something that you
routinely rely on for treating patients with
hearing disorders?
A.
Correct.
Q.
Did you have an opportunity to review
the audiogram for James Doyle?
A.
Yes.
Q.
Explain the findings of the audiogram
with both his left and right?
A.
The audio indicates for the left ear a
severe sensory neural hearing loss with zero
percent speech discrimination.
Audio for the
right ear indicates a mild to severe sensory
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DONALD RICHARDSON
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neural hearing loss, above one thousand Hertz
with a fair speech discrimination ability.
Q.
with respect to the left ear when you
indicate zero speech discrimination, can you
restate that in layman's term?
A.
Basically it's an assessment of the
ability to understand speech unaided, and a
zero percent there is no ability in that ear
that is measurable.
Q.
With respect to the right ear you made
some references to Hertz levels, correct?
A.
Yes.
Q.
Explain what that means?
A.
Basically what we are assessing where
the lost starts to change or the hearing
levels start to change.
In Mr. Doyle's case
it starts at one thousand and drops from that
point on.
So as the frequencies get higher he
has greater difficulty with hearing.
Q.
As far as normal conversational tones
between individuals is concerned, is that
measurable?
A.
It is generally measurable in a
subjective assessment.
It's kind of difficult
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DONALD RICHARDSON
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to measure it objective outside of the hearing
test booth.
Q.
Is there anything in the medical or
professional community that indicates what
level conversational speech usually falls in
terms of Hertz?
A.
Well, we generally look at
conversational speech in terms of decibels,
level loudness, which the average is between
50 and 60 DB.
Q.
How about in measuring that in terms of
frequency?
A.
In frequency we look at it as a cluster
of speech consonants and where they fall.
Q.
Is conversational speaking above or
below a thousand Hertz?
A.
For consonant sounds it's going to be,
the cluster is above, for vowel sounds it is
below.
Q.
When you saw Mr. Doyle in April of 2000
was he a hearing aid candidate?
A.
Yes.
Q.
Did he have a hearing aid in April of
2000.
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DONALD RICHARDSON
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A.
Yes, he did.
Q.
For which ear was that?
A.
It was for the right ear.
Q.
Did he have any hearing aids for the
5 left ear?
6 A. No.
7 Q. What was the reason for the referral of
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Mr. Doyle to you?
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A.
It was upon his request with concurrence
from the audiologist.
Q.
What was the audiologist trying to
achieve through this referral?
A.
In order to maximize the benefit of a
hearing aid speech reading augments the
reception process.
Q.
What is speech reading?
A.
Speech reading is a combination of lip
reading and use of contextual cues, facial
cues, environmental cues, intuition, guessing,
background knowledge.
Q.
Are all those items relevant then in
assisting someone to communicate?
A.
Yes.
Q.
Have you seen Mr. Doyle consistently
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DONALD RICHARDSON
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since April of 2000?
A. Yes.
Q.
How often have you been seeing him?
4 A. Probably been averaging maybe once every
5 6 to 8 weeks.
6
7
8
Q.
Mr. Richardson, directing your attention
to the summer of 2001, last summer, did you
have an opportunity to see Mr. Doyle?
9 A. Yes.
10 Q. Specifically did you have an opportunity
11 to see him on August 7?
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A.
I would have to look in my notes.
Q.
Do you have those handy?
A.
Yes.
Q.
Doctor, I'm directing your attention to
a progress note dated August 7, do you have
that?
A.
Yes, what I'm doing right now is pulling
up the electronic notation on the computer.
Q.
I said doctor, I apologize for that.
A.
The progress note is August 7.
Q.
Yes.
A.
2001.
Q.
Yes.
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A.
Okay, I have it pulled up.
Q.
Referring to the top of that page, Mr.
Richardson, where it indicates service
connected on SC veteran.
60, service
connected veteran, 60. Can you explain what
6 that means?
7 A. He has been rated by the VA adjudication
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board for service connection disability and he
is at 60 percent, which can either be a single
disorder or a combination thereof.
Q.
On a scale of zero to one hundred is one
hundred more disabled than zero?
A.
Well, it's not really viewed upon as
physical disability, it is a rating for
monitory compensation as well as medical
benefit eligibility.
Q.
The higher the number the greater the
eligibility for benefits?
A.
The higher number the more money, and
the more disabling relative to compensation
and medical treatment, the particular
disorders.
Q.
Moving on to the next line diagnosis,
can you explain what that means?
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A.
That is the communication diagnosis.
Q.
Hearing loss we talked about.
In
reference to the Meniere's disease, can you
explain that briefly?
A.
That is noted because it is relative to
the symptoms we need to be aware of, how it
effects his overall communication status.
Q.
What symptoms are those?
A.
Increased tinnitus, fluctuations of
hearing loss, vertigo, nausea, feeling of
fullness in the ears.
Q.
In the middle paragraph the next
paragraph down it starts FU.
Can you explain
what that means?
A.
Follow up.
Q.
Explain what the rest of that paragraph
pertains to?
A.
Okay.
What I have done is indicated the
follow up is to improve speech reading ability
and primarily to increase his use of
contextual cues to understand main ideas
during conversation.
Q.
From a physical standpoint how do you
accomplish that, what do you do?
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A.
We have structured activities where I
present cue words coupled with related
sentences and or topics and I give them at
varying degrees of loudness.
And then he
basically gives back what I have given him.
Q.
What kind of environment do you do those
exercises in?
A.
It's one on one single room,
relatively
free of noise, background distraction noise.
Q.
Is Mr. Doyle seated during these
exercises?
A.
Yes, he is.
Are you seated during these exercises?
Yes.
Are you facing Mr. Doyle during those
Q.
A.
Q.
exercises?
A.
Yes.
What is the approximate distance between
Q.
the two of you during these exercises?
A.
Q.
A.
Two and a half to three feet at the max.
Is that across a desk?
Across a table.
When you do these exercises does Mr.
Q.
Doyle have his hearing aid in?
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A.
Yes.
Is that consistent?
Yes.
Based upon your experience with Mr.
Q.
A.
Q.
Doyle if you were to remove his hearing aid
during these exercises would it increase or
decrease his
A.
Increase, you cut out any difficulty.
9 Q. How would his hearing aid not being in
10 effect the patient?
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It would increase the difficulty for him
to understand.
Q.
All things being equal, if you
introduced background noise into the room does
that increase or decrease the ability of Mr.
Doyle to communicate?
A.
It decreases his ability to communicate.
When you're conducting these exercises
Q.
in your office are you at eye level with Mr.
Doyle?
A.
Yes.
As part of the exercises you just
Q.
described does some of them involve lip
reading?
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DONALD RICHARDSON
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A.
They all do.
Q.
Do any of those exercises involve Mr.
Doyle reading from any written material and
then discussing same with you?
A.
No.
Q.
What was your assessment of James under
the clinical conditions that you presented on
August 7 of 2001?
A.
He required his performances reduced,
and requires a repetition to increase or
improve the performance.
And additional cue
words are needed at times.
Q.
For Mr. Doyle to engage in lip reading
does that require him to watch your face?
A.
Yes.
Q.
So if he were reading from something he
would not be able to see your lips move
presumably, correc t?
A.
Correct.
Q.
Mr. Richardson, I would like to ask you
the following hypothetical question:
I would
like to you assume certain facts before I ask
you to render an opinion.
I would like you to
assume that a person with Mr. Doyle's
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DONALD RICHARDSON
19
functional hearing capacity in the left and
right ears is engaged in conversation in a
room which contains some background noise. I
would further like you to assume that this
subject has been diagnosed with Meniere's
disease and further that this subject is
communicating with a third person while the
third person is standing and the subject
sitting.
I would like you to assume further
that the subject is without any hearing aid
devices.
Mr. Richardson, assuming those facts
can you give an opinion to a reasonable degree
of professional certainty whether or not that
subject would have difficulty in communicating
to that third person?
A.
Yes, he would have a great deal of
difficulty.
Q.
Is that your opinion to a reasonable
degree of professional certainty?
A.
Yes.
Q.
Mr. Richardson, in preparation for this
deposition did you have an opportunity to
review anything other than your progress
report and the audiogram for Mr. Doyle?
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A.
Yes.
Q.
What else did you have an opportunity to
review?
A.
I reviewed a video tape supplied by your
office.
Q.
Thank you.
Can you identify anyone
that appears on that video tape?
A.
Yes.
Q.
Did you have an opportunity to note the
present, that is the physical condition
present on the video tape?
A.
Yes.
Q.
Do you have an opinion as to -- let me
back up.
Was there an audio component to that
video tape that you were able to review?
A.
Yes.
Q.
Did you form any opinions regarding the
presence or lack of background noise on the
tape?
A.
Yes.
Q.
What was that opinion?
A.
I heard the train, som~ train whistles,
shuffling of objects and people.
Q.
The noise, the background noises that
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DONALD RICHARDSON
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you just described are those the type of
noises that are present during your exercises
with Mr. Doyle in your office?
A.
No.
Q.
Is that your opinion to a reasonable
degree of professional certainty?
A.
Yes.
Q.
Did you see Mr. Doyle again on August 21
of 2001?
A.
Yes.
Q.
And did you again evaluate him in your
office?
A.
It was a follow up session as opposed to
a formal evaluation.
Q.
During that follow up session did you
engage in any lip reading exercises with Mr.
Doyle?
A.
Yes, I did.
Q.
Is the lip reading exercises conducted
in the same setting as occurred on August 7?
A.
Yes.
Q.
Were there any background noises present
during your evaluation on August 21?
A.
No.
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Q.
Did you happen to notice from your
review of the video tape whether or not Mr.
Doyle was seated or standing?
A.
He was seated.
Q.
Are you aware from your review of the
video tape whether or not Mr. Doyle had his
hearing apparatus in?
A. No.
Q. No you were not aware or no he didn't
have it?
A.
No, I'm not aware.
Q.
Mr. Richardson, as a follow up to your
last hypothetical I would also like
let me
just go back over the facts again. I would
like you to assume that a person with Mr.
Doyle's functional hearing in the left and
right ear is engaged in conversation in a room
which contains background noise, and that the
subject has Meniere's disease.
I would also
ask you to assume further that the person who
is communicating with the subject is doing so
while that third person is standing and while
the subject is sitting.
I would also ask you
to assume that the subject does not have his
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DONALD RICHARDSON
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hearing aid in, and that the subject has been
presented with a form to read, which gives
rise to questions by the subject to that third
person.
I would also ask you to assume that
the third person and the subject are not at
eye level.
Can you give an opinion to a
reasonable degree of professional certainty
whether or not that subject would have
difficulty in communicating with that third
person under those circumstances?
A.
Yes.
Q.
What is that opinion?
A.
That he would have increasing difficulty
not being at eye level relative to
comprehending the main idea that is
verbalized.
MR. HERSHEY:
Thank you, Mr.
Richardson.
MR. KADA:
I have some questions
for you now.
BY MR. KADA:
Q.
Mr. Doyle is a patient with the
Department of Veterans Affairs;
is that
correct?
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DONALD RICHARDSON
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A.
Yes.
Q.
Where is he a patient?
A.
In the audiology and speech pathology
service.
Q.
Would that be in the Philadelphia
location?
A.
Correct.
Q.
Are you aware, is he also a patient at
the Coatsville location?
A.
I'm not sure about that.
Q.
Have you reviewed his medical records in
your course of treatment?
A.
Pardon me?
Q.
Have you reviewed his medical records in
the course of your treatment?
A.
Yes.
Q.
Have you reviewed any medical records
from the Coatsville area?
A.
No.
Q.
Have you reviewed any records produced
by a Andrea K. Hall, an audiologist?
A.
No.
Q.
Are you aware that Andrea Hall was at an
MACCA Audiological examination of Mr. Doyle at
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DONALD RICHARDSON
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the Coatsville Veterans facility?
A.
No.
Q.
The records that were provided to me for
this hearing indicates that you saw Mr. Doyle
five times; is that correct?
A.
During what period?
Q.
Well, I understand that you saw him five
times and it appears that you saw him on 5/22
of 01, 6/12 of 01, 6/26/01, 7/10/01, 8/7/01,
Clnd 7/21/01?
A.
That's correct.
Q.
That's six times, I'm sorry, it is not
five times; is that correct?
A.
Correct.
Q.
And so the last time you had seen him
was August 21 of '01; is that correct?
A.
No.
Q.
When did you last see him?
A.
March 14.
Q.
Of what year?
A.
2002.
Q.
Would you have produced the same type of
record as you produced for those two dates
that Mr. Hershey questioned you about?
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DONALD RICHARDSON
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A.
Yes, they're similar, the treatment is
similar.
3 Q. I have not been provided a copy of
4 those. I would ask that you provide me with
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all the documents relating to Mr. Doyle's
treatment.
I have only been provided with
selected copies.
So I note an objection for
the record and ask that I be provided all
copies.
What did you do during the
appointments with Mr. Doyle?
A.
Provided training and speech reading and
use some contextual cues.
Q.
Is that a normal course of treatment for
such a patient?
A.
Yes.
Q.
And a patient who has what, hearing loss
18 in one ear?
19 A. Correct.
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Q.
Do you recommend further treatment for
him?
A.
Yes.
Q.
What would that treatment be?
A.
Continue with speech reading
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DONALD RICHARDSON
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development.
Q.
Did Mr. Doyle tell you about any
incident that occurred on 8/10/01?
A.
What is that again?
Q.
Did Mr. Doyle tell you about an incident
that he was involved in which occurred on
8110/01?
A.
No.
Q.
Did he tell you that he was stopped for
DUI and refused a chemical test?
A.
No.
Q.
Now Mr. Doyle has hearing loss; is that
correct?
A.
Correct.
Q.
In the left ear it is severe, correct?
A.
Correct.
Q.
And he has basically zero percent
discrimination?
A.
Correct.
Q.
What does that mean?
A.
It means basically minimal, if any,
ability to understand speech.
Q.
In his right ear do you have the percent
of discrimination he has?
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DONALD RICHARDSON
A.
Yes.
Q.
What is that?
A.
76 percent.
Q.
What does that mean?
A.
It means it's a fair ability.
Q.
Fair ability to what, hear?
A.
No, to understand speech.
Q.
So Mr. Doyle has a fair ability to
understand speech?
A.
Correct.
Q.
As part of your treatment for him were
you the one who recommended that he have a
hearing aid?
A.
No.
Q.
Who recommended that?
A.
The audiologist who tested him.
Q.
Who was that audiologist?
A.
Beverly Caplan.
Q.
Would it be unusual for you not to be
aware of the prior audiologist's report that
happened in the year 2000 on 7/20 of 2000
conducted by Andrea Hall?
A.
Not unusual, atypical.
Q.
And the hearing aid is designed to
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DONALD RICHARDSON
29
assist Mr. Doyle's hearing; is that correct?
A.
Correct.
Q.
And even without the hearing aid Mr.
Doyle can hear; is that correct?
A.
Can you restate the question.
Q.
Even without the hearing aid Mr. Doyle
can hear; is that correct?
MR. HERSHEY:
Object to the form
of the question.
BY MR. KADA:
Q.
without the hearing aid Mr. Doyle, he
has a fair hearing ability; is that correct?
A.
No.
Q.
what does 76 percent discrimination
mean?
A.
It pertains only to the reception of
speech unaided.
Q.
So without the hearing aid he has a fair
reception of speech?
A.
On that one side.
Q.
So he can hear, is that correct, without
the hearing aid?
A.
He can hear?
Q.
Yes, is that correct?
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DONALD RICHARDSON
30
A.
He can hear sounds; that is correct.
Q.
Those sounds, if they're in conversation
he has a fair reception of them; is that
correct?
A.
It is looked upon as understanding,
comprehension, as opposed to the actual
reception.
Q.
So he has a fair understanding of it
unaided, of conversation unaided?
A.
Fair, within a quiet environment.
Q.
with a hearing aid in what is his
reception of speech?
A.
It improves through loudness.
Q.
Would that improve his understanding of
conversation?
A.
It is hard to say, it's difficult to say
yes or no relative to variables, it would
overall it should have some improvement.
Q.
Now, do your records indicate that Mr.
Doyle has difficulty in most situations with
the exception of face to face communication in
a quiet room?
A.
Yes.
Q.
And Mr. Doyle was indeed fitted for a
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DONALD RICHARDSON
31
hearing aid, correct?
A. Correct.
Q.
And the hearing aid did, in fact,
indicate -- it did benefit his hearing; is
5 that correct?
6 A. Correct.
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Q.
Now, you were instructing Mr. Doyle in
speech reading, correct?
A.
Correct.
Q.
Cognition of verbal communication is
increased when the hearer can see the
speaker's face and lips, correct?
A.
Correct.
Q.
That cognition is increased by the
addition of speech reading, correct?
Q.
And cognition can be effected by the
eyesight, correct?
A.
Correct.
Q.
And you have assisted or trained Mr.
Doyle with lip reading and/or speech reading,
correct?
A.
Correct.
Q.
Does Mr. Doyle see well to your
knowledge?
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DONALD RICHARDSON
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A.
Correct.
Q.
Have you recommended that he have his
eyesight checked?
A.
No.
Q.
Speech reading is best when the room is
quiet, well-lit and the hearer can see the
speaker, correct?
A.
Correct.
Q.
You have had the occasion to review the
video tape, correc t?
A.
Correct.
Q.
Now, assuming, I'm going to ask you to
assume the subject was seated in a chair, in a
well-lit area with somewhat, some background
noise, a few distractions and that he was in
the custody of a police officer who was
reading and speaking to him in plain view,
only a few feet away; would you agree that
those conditions would provide satisfactory
conditions for speech reading?
A.
No, I wouldn't agree.
Q.
But would you agree that a well-lit area
would provide satisfactory conditions for
speech reading?
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DONALD RICHARDSON
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A.
It would contribute towards it.
Q.
Do you agree that few distractions would
contribute to satisfactory speech reading?
A.
Yes.
Q.
Do you agree that a person being in the
custody of a police officer would increase the
person's speech reading ability?
A.
It's unquestionable.
Q.
Would you agree that if a police officer
was reading to him in plain view only a few
feet away that would increase satisfactory
speech reading?
A.
It would depend on the level of the
speaker.
Q.
You mean the level of volume or -
A.
The height of the policeman.
Q.
If the subject was seated and the
policeman was standing or crouching that
would, facing the subject that would increase
the speech reading, correct?
MR. HERSHEY:
Object to the form
of the question.
There is two competing
theories in your question.
BY MR. KADA:
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DONALD RICHARDSON
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Q.
Assuming that the subject was seated and
that the police officer was standing, and
facing the subject, would that increase speech
reading ability?
A.
No.
Q.
Would it be increased if he was sitting
face-to-face?
A.
Yes.
Q.
But it would not be impossible for a
person to speech read if the person was seated
and the speaker was standing, correct?
A.
It would be severely reduced.
Q.
Those same conditions would provide,
with the exception of background noise, would
provide optimum hearing for a hearing impaired
person, correct?
MR. HERSHEY:
Objection, what
same thing?
BY MR. KADA:
Q.
Those conditions of a well-lit area, of
some background noise, custody of a police
officer who was speaking to him in plain view,
facing him only a few feet away, would that
provide satisfactory conditions for a hearing
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DONALD RICHARDSON 35
impaired person?
A.
The background noise would decrease the
satisfaction.
Q.
Cognition is also increased when a
hearer has good command of the English
language, correct?
A.
Yes.
Q.
Are you aware of Mr. Doyle's command of
the English language?
A.
Yes.
Q.
What is that?
A.
It is adequate.
Can Mr. Doyle read and write?
Q.
A.
Yes.
Q.
Do you know at what level?
A.
High school, probably general high
school level.
Q.
Cognition also increases if the hearer
has heard the same words in a similar setting;
is that correct?
A.
What is that again?
Cognition increases if the hearer has,
Q.
in fact, heard the same words in a similar
setting?
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DONALD RICHARDSON
A.
Correct.
Q.
And cognition further then increases if
the hearer has, in fact, been in a similar
situation and has heard the exact same words,
correct?
A.
Possibly, correct.
Q.
If Mr. Doyle had been in a similar
setting in the past, heard the exact same
words by a -- and if the police officer was
reading what he was saying to Mr. Doyle that
would increase his cognition, correct?
A.
Correct.
Q.
Are you aware that Mr. Doyle had been
charged with a similar violation of 1547 of
vehicle code on 9/9 of 2000?
A.
No.
Q.
Would you expect that to have increased
his cognition of the communication involved in
the incident at issue?
A.
I have to have you restate that.
The
transmission is breaking up.
Q.
Would you expect that Mr. Doyle having
been charged with the violation of section
1547 of the vehicle code, that's related to
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DONALD RICHARDSON
37
chemical test refusal on 9/9 of 2000, with
that would you expect that having had a
similar situation and having the same words
read to him, would you expect that to increase
his cognition of the communication that was
involved at the incident at issue?
A.
Yes.
Q.
Are you aware of the effects of alcohol?
A.
Yes.
Q.
Is one of the short-term effects of
alcohol in that it effects vision?
A.
I'm unsure about that.
Q.
Well, do you know that alcohol narrows
the visual field?
A.
No, I don't know tha t .
Q.
Do you know that alcohol reduces
resistant to glare?
A.
No.
Q.
Do you know that alcohol interferes with
the ability to differentiate intensity of
light?
A.
I'm unsure about that.
Q.
Do you know that alcohol lessens
sensitivity to color?
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A.
I don't know about that.
Q.
Assuming that alcohol narrows the visual
field, assuming that alcohol reduces
resistance to glare, assuming alcohol
interferes with the ability to differentiate
intensity of lights, assuming alcohol lessens
sensitivity to color, would you agree that
alcohol would effect visual acuity?
MR. HERSHEY:
I'm going to
object just for the record to indicate these
are all facts not of record.
BY MR. KADA:
Q.
Mr. Richardson, I want you to assume the
facts of the hypothetical question. Would
visual acuity be effected by alcohol
consumption?
A.
I'm really not trained to answer that
question.
Q.
Assuming that alcohol consumption
effects visual acuity would cognition, the
spoken communications be decreased?
A.
I guess comprehension of the ideas could
be effected relative to speech reading.
Q.
Because the person cannot see as well,
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correct?
A.
Correct, right.
Q.
Now, cognition of spoken communication
would especially decrease if a hearing
impaired person who relies on speech reading
and/or lip reading to enhance cognition?
A.
Correct.
Q.
And that was negatively effected by the,
under the influence of alcohol, correct?
A.
Correct.
Q.
Now, I want you to -- also alcohol
effects the central nervous system, correct?
A.
Correct.
Q.
Alcohol is a depressant, correct?
A.
Correct.
Q.
And alcohol impairs a person's mental
facilities, correct?
A.
Correct.
Q.
Alcohol impairs a person's ability to
recall past events, correct?
A.
Correct.
Q.
Is it possible that because decreased
mental facility, as a result of alcohol
intoxication, a person's ability to speech
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DONALD RICHARDSON
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read would be decreased, correct?
A.
Correct.
Q.
Now, I want you to as sume that
hypothetically that when the police
encountered Mr. Doyle the policeman noticed
that Mr. Doyle was swaying and Mr. Doyle
smelled of alcohol, that Mr. Doyle had eyes
that were blood shot and glassy, that Mr.
Doyle fumbled with his documents, that Mr.
Doyle admitted drinking, that Mr. Doyle failed
3 field sobriety tests.
Now in your opinion
with all those indicators of self induced
intoxication, as a result of consuming
alcohol, that would impair his mental
facilities, correct?
A.
Correct.
Q.
Also assuming those factors it would
also impair Mr. Doyle's visual acuity,
correct?
MR. HERSHEY:
Objection, I
think that question was asked and answered.
BY MR. KADA:
Q.
I'm asking Mr. Richardson -
A.
The visual acuity question is really
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DONALD RICHARDSON
beyond my scope.
Q.
Now, what effect does alcohol have on
hearing?
A.
None that I'm aware of. It is the
processing that it affects.
Q.
Once again, assuming that the facts are
going to come out as Mr. Doyle was swaying,
when the officer encountered Mr. Doyle, Mr.
Doyle was swaying, smelling of alcohol, his
eyes were blood shot and glassy, he fumbled
with his documents, and he admitted drinking,
and he failed field sobriety tests, knowing
that are you able to rule out consumption of
alcohol as a factor in Mr. Doyle'S conduct
during the incident?
A.
No.
Q.
So, it would be fair to state that you
cannot rule out alcohol as a factor in Mr.
Doyle'S refusal to a chemical test?
MR. HERSHEY:
Objection to the
form of the question, assumes facts.
BY MR. KADA:
Q.
Mr. Richardson, wouJd it be fair to say
that assuming those facts that I just told you
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42
about how the officer encountered Mr. Doyle
you cannot rule out alcohol as playing a
factor in Mr. Doyle's behavior during that
incident, correct?
A.
Correct.
Q.
Once again, assuming those facts you
cannot rule out alcohol as a factor in Mr.
Doyle's choice whether to take or to refuse
the requested breath test, correct?
A.
Correct.
Q.
You cannot rule out as a factor,
assuming those facts you cannot rule out
alcohol as a factor in the communication
between Mr. Doyle and the police officer,
correct?
A.
Correct.
Q.
You cannot, assuming those facts you
cannot rule out as, the alcohol as a factor as
playing a, between Mr. Doyle and the breath
test instrument operator, correct?
A.
Correct.
Q.
In that video tape that you viewed it
was a very short tape, only lasting about two
minutes or so, wasn't it?
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A.
Correct.
Q.
And did not show a conversation between
the police officer and Mr. Doyle, correct?
A.
It showed a conversation between him and
another person.
Q.
And that other person appeared to be
involved in the breath test instrument
operation, correct?
A.
I was not clear about that, I only saw
the person who introduced the tape and Mr.
Doyle.
Q.
You did not see officer, a police
officer talking to Mr. Doyle about 20 minutes
or so, did you?
A.
Correct.
Q.
So you don't exactly know how loud the
officer was speaking, do you?
A.
I could hear the voice.
Q.
But during the portion of time when the
officer spoke to Mr. Doyle you couldn't hear
the level of volume that the police officer
was speaking to Mr. Doyle, could you?
A.
I could hear, there was another person
discussing things with Doyle.
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Q.
Did you hear the 20 minute conversation
between the police officer and Mr. Doyle?
A.
No.
Q.
So you don't know how loud the police
officer was talking to him, do you?
A.
Correct.
Q.
You don't know what level he was, do
you?
A.
Correct.
Q.
You don't know the other conditions that
existed at that time, do you?
A.
Correct.
Q.
The only thing you saw was basically the
breath test instrument operator saying, well,
saying basically that you have already
refused, correct?
A.
Is that the person who was standing in
front of a black board?
Q.
That was an introduction.
I'm talking
about when they moved the camera over?
A.
And then discussed his Miranda rights?
Q.
Yes.
A.
What is your question again?
Q.
You didn't see the -- that's the only
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DONALD RICHARDSON
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thing you saw, correct, and so, you don't know
the other conditions that existed that Officer
Daly was conversing with Mr. Doyle, do you?
A.
Correct.
Q.
You don't really know exactly what kind
of factors Mr. Doyle was operating under, do
you?
A.
Correct.
Q.
Other than the testing that you have
done you don't really know what type of
factors he was under in the evening in
question, do you?
A.
Correct.
MR. HERSHEY:
Objection to the
form of the question, I'm not sure what
factors mean.
BY MR. KADA:
Q.
You don't know the hearing levels, the
placement of bodies, the level of
intoxication, you don't know any of that, do
you?
A.
Correct.
Q.
Can you state with certainty whether Mr.
Doyle could hear and understand what the
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officer was asking him to do?
A.
No.
Q.
In your opinion to a degree of
certainty, a medical certainty can you rule
out alcohol as not playing a factor in Mr.
Doyle's ability to make a knowing and
conscious refusal?
A.
No.
Q.
Now Mr. Doyle has been diagnosed with
Meniere's disease, correct?
A.
Correct.
What are those symptoms?
Vertigo, feeling dizzy, nausea, a
Q.
A.
feeling of fullness in their ears.
Q.
A.
How is Meniere's disease treated?
Q.
By a medical doctor.
You are not treating him for Meniere's
disease, correct?
A.
Correct.
Are you aware whether drugs are
Q.
prescribed?
A.
Yes.
Q.
A.
That's so in Mr. Doyle's case?
Correct.
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DONALD RICHARDSON
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Q.
Has he been prescribed drugs?
According to him he has, yes.
Are you aware whether alcohol effects
A.
Q.
Meniere's disease?
A.
Yes.
It would aggravate the symptoms,
Q.
correct?
A.
Correct.
Q.
Would you have or did you tell Mr. Doyle
to avoid alcohol, the consumption of alcohol?
A.
No.
Q.
Would self-induced intoxication be
following the prescribed treatment orders for
Mr. Doyle?
A.
I can't comment on that.
Again, it's
beyond my scope.
Q.
What negative consequences would alcohol
intoxication have on Meniere's disease?
A.
It would exacerbate the symptoms.
Now, would wearing a hearing aid be
Q.
compliant with the treatment plan for Mr.
Doyle?
A.
Correct.
Assuming Mr. Doyle did not have that
Q.
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DONALD RICHARDSON
48
hearing aid in when he was stopped by the
police officer, then assuming that the police
officer provided him an opportunity to
retrieve his hearing aid and put it in, would
not putting in a hearing aid be consistent
with the treatment plan for a hearing impaired
person?
MR. HERSHEY:
I object, not
relevant.
BY MR. KADA:
Q.
Mr. Richardson, I would like you to
answer that question?
A.
Could you restate it please.
Q.
Assuming that when Mr. Doyle was stopped
by a police officer he did not have in his
hearing aid, assuming that the officer invited
him to place his hearing aid in his ear,
assuming Mr. Doyle did not do so, would that
be consistent with the treatment plan for a
hearing impaired person?
A. No.
Q. Would the declining of an offer to put
in a hearing aid effect negatively his
cognition of any speech reading and
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DONALD RICHARDSON
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communication that is going to occur after
that?
A.
Yes.
Q.
Generally a person who wears a hearing
aid, they do take them out occasionally,
correct?
A.
Correct.
Q.
And you would advise someone about to
have a conversation to put that hearing aid
back in, correct?
A.
Correct.
Q.
And so a person who declines to put in a
hearing aid is not fully complying with the
treatment plan, correct?
A.
Correct.
Q.
So, assuming that when the officer
encountered Mr. Doyle who was swaying, smelled
of alcohol and had glassy and blood shot eyes,
fumbled with his documents, admitted drinking,
failed field sobriety tests, would you rule
out to a degree of medical certainty that
alcohol did not effect his decision to place
in his, the hearing aid back into his ear?
A.
No.
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Q.
So by him declining to put in his
hearing aid he was, in fact, hampering his
ability to hear and understand the following
conversa tion, correct?
MR. HERSHEY:
Assumes facts not
in evidence.
THE WITNESS:
Do I answer that?
BY MR. KADA:
Q.
Yes, please?
A.
Yes.
Q.
So Mr. Doyle, by not putting in his
hearing aid actually hampered his ability,
cognitive ability for any subsequent
communication, correct?
A.
Correct.
Q.
How does Meniere's disease effect a
person's ability to function?
MR. HERSHEY:
Objection to the
form, that is not specific.
BY MR. KADA:
Q.
How does Meniere's disease effect a
person's ability to function?
A.
I can really only comment on its effects
on communication.
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Q.
Would I need to speak to a medical
doctor regarding a person's ability to
function with Meniere's disease?
A.
Yes, you should.
Q.
But you would agree Meniere's disease
has a negative impact on a person's ability to
function; is that correct?
A.
When it is -- yes, when it is occurring,
when the symptoms are occurring.
Q.
Now, has Mr. Doyle ever related to you
any attacks or bouts of Meniere's disease?
A.
Yes.
Q.
Now, in your position as, if someone
related to you they have episodes of some sort
of condition or disease which severely
effected their safety, their ability to safely
operate a motor vehicle would you be compelled
to report that to a medical authority that
worked with
A.
Yes, I would refer them to a physician.
Q.
Have you ever referred Mr. Doyle to a
physician?
A.
No.
Q.
But he has related to you the effects of
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52
Meniere's disease?
A.
Yes.
Q.
Is he under treatment for Meniere's
disease?
A.
Yes.
Q.
By whom?
A.
The ENT service here at the medical
center.
MR. KADA: No further questions.
BY MR. HERSHEY:
Q.
Mr. Richardson, I have a few follow ups.
Based upon your knowledge of Meniere's can one
experience the symptoms of that disease and
not be under the influence of alcohol?
A.
Yes.
Q.
I think you indicated, but I would like
you to clarify, it's your testimony that
Meniere's disease has an adverse effect on
communication skills?
A.
Yes.
Q.
Is that your opinion to a reasonable
degree of professional certainty?
A.
Correct.
Q.
You had mentioned vertigo as a symptom
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DONALD RICHARDSON
53
of Meniere's; is that correct?
A.
Correct.
Q.
And is vertigo sometimes manifested
through a person by swaying?
A.
Correct.
Q.
Is it also sometimes manifested by a
7 loss of balance?
8 A. Correc t.
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Q.
You were presented with evidence that
Mr. Doyle had been stopped for a headlight
violation as opposed to some other reason.
A.
Correct.
Q.
And further that he had experienced a
Meniere's attack and further that he was
administered field sobriety tests at the time
when he had a low back problem.
A.
Correct.
Q.
Under those circumstances would your
testimony be, would your opinion be that Mr.
Doyle had decreased his communication skills
because he was under the influence of alcohol?
A.
Correct.
Q.
Are you aware in any of your treatment
with Mr. Doyle that he has been diagnosed with
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DONALD RICHARDSON 54
low back problems?
A. Yes.
Q.
Do you know whether or not that was
through the VA?
A.
I'm not sure, it is only as he has
reported it.
Q.
If a trial court in this case, Mr.
Richardson, ultimately finds that Mr. Doyle
was not under the influence of alcohol would
it be your opinion based upon your previous
hypothetical that because of his other
conditions, other medical conditions, that
decreased his ability to communicate?
A.
Yes.
Q.
In your experience, Mr. Richardson, can
a person exhibit an odor of alcohol without
being cognitively impaired?
A.
Yes.
19 Q. Based upon your treatment of Mr. Doyle
20 thus far do you have any reservations about
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his ability to safely operate a motor vehicle
either due his hearing condition or his
Meniere's condition?
A.
No.
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DONALD RICHARDSON
55
Q.
Is that your opinion to a reasonable
degree of professional certainty?
A.
Yes.
MR. HERSHEY: No further
questions.
BY MR. KADA:
Q.
Mr. Richardson, assuming a person is
experiencing a severe attack of Meniere's
disease, that would include vertigo, correct?
A.
Correct.
Q.
It would also include possible nausea,
sweating, correct?
A.
Correct.
Q.
Would it be possible for a person to be
operating a motor vehicle at that time?
A.
Would it be?
Q.
Possible, for a person having a
Meniere's disease attack to be operating a
motor vehicle at that time?
A.
With limitations.
Q.
Could a person with a severe attack of
Meniere's disease safely operate a motor
vehicle?
A.
I would say no.
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DONALD RICHARDSON
56
Q.
Now, you had testified that in your
opinion, with the odor of alcohol, a person
cannot be cognitively impaired; is that
correct?
A.
Correct.
You testified earlier you didn't know if
Q.
the effects of alcohol effects the visual
system, correct?
A.
Correct.
So, on what basis are you forming that
Q.
opinion?
A.
Well, the cognitive is different from
the visual in terms of communication skills.
Q.
So, are you saying a person with an odor
of alcohol, say after one mouthful of alcohol,
is not cognitively impaired?
A.
It's hard to say, I can't say that with
certainty, it depends on the individual
system.
Q.
So in your experience, with the odor of
alcohol, you cannot determine if a person is
cognitively impaired?
A.
That's correct.
Q.
But that certainly would be a clue, an
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17
18
19
20
21
22
0 23
24
,"
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DONALD RICHARDSON
57
indicator that a person is cognitively
imp air ed, cor r e c t ?
A.
It is a red flag.
MR. KADA: Thank you.
No further
questions.
MR. HERSHEY: Mr. Richardson I thank
you for your time.
To the court reporter, I
would request an expedited transcript in
this matter.
I am going to need it in less
Thank you.
than a week.
(Witness excused.)
(Deposition concluded.)
B & R Services for Professionals, Inc.
'''3
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DONALD RICHARDSON
58
0 1
2
3
4
5
6
7
8
9
10
11
C 12
13
14
15
16
17
18
19
20
21
22
0 23
24
k.E R T l...E.l..k.A T l..Q.N
I, MAUREEN R. GALLAGHER,
hereby certify that the testimony and the
proceedings in the foregoing matter taken on
March 15, 2002, and pages 1 through 57 are
contained fully and accurately in the
stenographic notes taken by me of this
testimony are a true and correct transcript of
the same.
The foregoing certification of
this transcript does not apply to any
reproduction of the same by any means unless
under the direct control and!or direction of
the certifying shorthand reporter.
B & R Services for Professionals, Inc.
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JAMES DOYLE, III
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01 - /-0.;).7 C.,'u~L ~~
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPEAL
ORDER OF COURT
!d
AND NOW, this z.(d, day of 04 ,2001 upon Petition of James Doyle, III, a hearing
U,,~ ~ ':;;06.1 ,....-
is set on the License Suspension Appeal for the ~ day of ~' 208't, at / tI . L/5i
o'clockiLm. in Courtroom Number -/-' Cumberland County Courthouse, One Courthouse
Square, Carlisle, Cumberland County, Pennsylvania, all proceedings to stay meanwhile.
Notice of said hearing shall be given by Petitioner's counsel to the Department of
Transportation at least sixty (60) days prior to the date of said hearing.
Pursuant to Section 1550(b) of the Pennsylvania Motor Vehicle Code, Petitioner's appeal
shall act as an automatic supersedeas, and Petitioner's operating privileges shall not be suspended
pending a final determination in this matter.
BY THE COURT:
Distribution:
J.
Prothonotary's Office
George Kabusk, Esquire, Penn DOT
1101 South Front Street, Harrisburg, PA 17104-2516
David E. Hershey, Esquire
2233 North Front Street, Harrisburg, PA 17110
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JAMES DOYLE, III
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-l..cM7 Cw~lT~
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING :
LICENSE SUSPENSION APPEAL
AND NOW, comes Petitioner, James Doyle, III, by and through his attorneys, Mancke,
Wagner, Hershey & Tully, and makes the following averments in support of this License
Suspension Appeal:
1. Petitioner, James Doyle, III, is a Pennsylvania licensed driver with a residence
address of 312 South Walnut Street, Dallastown, Pennsylvania 17313.
2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver
Licensing, has a mailing address at Riverfront Office Center, Third Floor, 1101 South Front Street,
Harrisburg, Dauphin County, Pennsylvania 17104-2516.
3. Petitioner was arrested by New Cumberland Borough Police on August 10, 2001 for
an alleged violation of ~3731 of the Vehicle Code.
4. Petitioner received a notice of license suspension by way of letter dated September
21, 2001 from the Department of Transportation indicating that his Pennsylvania driving privileges
are to be suspended on October 26,2001, at 12:01 a.m. for a period of one (1) year for a violation
of Section 1547 of the Vehicle Code. See Exhibit "A" attached hereto and incorporated herein by
reference.
5. The proposed suspension is illegal, improper, and invalid for some or all of the
following reasons:
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a. The arresting officer did not have reasonable grounds to believe that
Petitioner was operating a motor vehicle while under the influence of
alcohol.
b. Petitioner requested the right to speak to counsel subsequent to his arrest
and was not adequately provided O'Connell warnings in response to same.
c. The proposed suspension is in violation of s1547 and case law.
WHEREFORE, Petitioner respectfully requests that this Court issue a supersedeas and
stay the proposed suspension as outlined in the Department's notice of September 21. 2001 and
schedule a hearing to determine the validity of the suspension proposed by the Department in
Exhibit "A".
Respectfully submitted,
MANCKE WAGNER HERSHEY & TULLY
BbaWd'~~;:
1.0. #43092
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
Date:
.
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VERIFICATION
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I verify that the statements made in the foregoing document are true and correct to the best
of my knowledge, information, and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. 34904 relating to unsworn falsification to authorities.
Date:
'0/
r fJouf- lIT
B9!24!2BB1 12:21
2159727B4B
,
SELF SERVICE STORAGE
PAGE B2
lit,;
COHMONWEAlTH OF fENNSVl~ANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Hail Date: SEPTEMBER 21, 2001
JAnES " DOYLE III
31c SOUTH WALNUT ST
DALLASTOWH PA 17313
WID. 01257bl12ql~134 001
PROCESSING lATE 0~/14/2DDl
DRIVER LICENSt. 1~S2a'"
DATE OF BIRTH 11/13/1~44
I)ear. ~DOYlE ,
ThiS is an Officlal Notice 01 the SusDenelon of your Driving
Privilege as authorized by Section lSQ7 of the PennsYlvania
Yehicle Code. As a result of your violation of Section 1547
at the Yehicle COde, CHEMICAL TEST REFUSAL, on'08/10/2001:
· Your driving privihlle is SUSPENDED for a p...iad of 1
YIAR{S) effective 10'26'2001 at 12:01 a...
~~...**.....**.....***.~.....~*.**.~..........**...........
I WARNING: If YOU are convicted of driving while YOUr I
I license 1s suspended/revoked the ~enalties will be. I
I MINIMUM of ~O days imprisonment AND. 1,000 fine AND I
r YOUr driving privilege will be suspended/revok.d for (-
I a MINIMUM 1 year period I
..~.******.*..*...*******..***.***.*~**~***...*..**~.****..
COMPLYING WITH THIS SUSPENSION
You must return all cu~rent PennSYlvania driver's licenses,
learner's permits, temporary driver's licens.s (camera
cards) in YOur possession on or befo~e 10/26/2001, You may
surrenoer tf\'i$e' Hen -liij'fiir.";' ''''-1 O/26-izifoi';' far ..rUer
creditJ howe'er, YOU may not drive after these items are
surrendered.
YOU MAY NeT RETAIN YOUR DRIV~R'S LIC!NSE FOR IDENTIFICATION
PUR.POSES. However, you may apPly for and obtain a photo
identificatian card at any Driver license Center far a cost
of 9.00. You must pres.nt two (2) formS of proper iden-
tification (e.g., birth certificate, 'alid U.S. passport,
..rriage certificate, etc.) in order to obtain your photo
identification card.
You will not rleelv. credit tDward ..r"ing any .uIPenalan
until w. receive your 1:I....n88(.). Complete the followinll
steps to acknowledge this susPension.
,
~ '~ ~
'--V~'i'l..a:~:-li
09!24!2001 1J'21
2159727040
SELF ~RVICE STORAGE
PAGE 03
012576112919134
APPEi\L
You have the right to apP.al this action to the Court of,
COlllllon Phas (Civil Division) within 30 days of the l1Ia11
lIah, SEPTEMBER 21. 2001. of thh lethr. 3:f YOU 1'118 an'
appeal 1n the county Court, the Court will give .YOU a time-
ata_ad cert11'led COpy 01' the appeel. In order for your
aPP..l to be va11d. You must send this tillle-stal1lped certi-
fied COPl! of the appeal by certified mail tOI
PennsYlvania nepartlllent of Transportation
Office of Chief Counsel
..-Bt.!!..!L.Fl_'!!!!:.L!!..tv.u.f./",pl:lt. OffiCe Cenhr ...,., __ _ _" _ 0.,__'_
HarrisburD, PI. 17104-2516
ReIIellber. this is an OFFICIAL NOTICE OF SUSPENSION. You
must return all current PennSYlvania driver license prodUcts
to PennDOT by 10/~6/2001.
, Sincerely.
.~'S,~
Rebecca L. Bickley, Director
Bureau of Driver licenSing
IN STATE
OUT-Of-STATE
WEB SITE ADDRESS
INFORMATION 7100 a.llI. to 9100 0....
1-800-932-4&00 TDD IN STATE
717-391-6190 TOD OUT-OF-STATE
www.dot.state.pa.us
1~800-22B-061'
717-391-&191
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CERTIFICATE OF SERVICE
I, Tammy L Kelly, an employee of the law firm of MANCKE WAGNER HERSHEY & TUllY,
hereby certify that I am this day serving a copy of the foregoing document to the attorneys or
parties of record in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
postage prepaid, at Harrisburg, Pennsylvania, on the tLP ~y of October, 2001, at the address
listed below:
George Kabusk, Esquire
PA Department of Transportation
Riverfront Office Center, Third Floor
11 01 South Front Street
Harrisburg, PA 17104-2516
B~ LI\ ld O^l 1
Tammy L Kelly c..:=='(J
MANCKE WAGNER HERSHEY & lUll Y
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JAMES DOYLE, III
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 01-6027
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this 3ls + day of -J.a..Tl~ 2002, upon motion of Petitioner and noting
that the Department of Transportation, through co~nsel, George Kabusk, Esquire, has no objection
and noting the reasons supporting same, said motion is hereby ~d . The above-
"'J~
mentioned appeal is hereby rescheduled for the~ day of March, 2002 at /!.3tJ f,m. in
Courtroom #1.
BY THE COURT:
c!/~
Distribution:
Oe".:::t')--.t"Cl
E5eC;;:~e Kabusk, Esq., PennDOT ." \
~ 11p;iS. FrontSt., Harrisburg, PA 17104-2516 LnY'>J'Rt:::J f'[~
~d E. Hershey, Esq. > -r-- v1
' 2233 N. Front St., Harrisburg, PA 17110 R .3
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JAMES DOYLE, III
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-6027
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPEAL
MOTION FOR CONTINUANCE
TO THE HONORABLE WESLEY J. OlER, JUDGE OF THE ABOVE-SAID COURT:
AND NOW, comes Petitioner, James Doyle, III, by and through his attorneys, Mancke,
Wagner, Hershey & Tully, and makes the following averments in support of this Motion for
Continuance:
1. A timely license suspension appeal was filed from the Department's notice of
chemical test refusal.
2. The hearing is presently scheduled for February 4, 2002 at1 0:45 in Courtroom #1.
3. Petitioner has an expert witness in the form of a speech therapist who is also his
treating specialist whose office is located at the Veteran's Memorial Building in
Philadelphia, Pennsylvania.
4. Petitioner's speech therapist is unavailable due to his schedule to travel to
Cumberland County to give testimony in this matter.
5. Counsel for the Department of Transportation, George Kabusk, Esquire, has been
consulted regarding this request for continuance and has indicated that he has no
objection to moving this case to March 23, 2002 to allow lime for Petitioner's expert
witness to be deposed via telephonic deposition.
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6. The above procedure has previously been utilized with the Department in license
suspension appeal cases.
7. It is believed and therefore averred that the continuance will allow sufficient time to
schedule the audio deposition with Donald Richardson, MACCC, Speech Language
Pathologist.
WHEREFORE, Petitioner prays Your Honorable Court continue the above-captioned matter
until March 23, 2002 for the reasons outlined above.
Respectfully submitted,
Date: 01/28/02
MANCKE WAGNER HERSHEY & TULLY
r
BY~
Da . Hershey, Esquire
1.0.#43092
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
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CERTIFICATE OF SERVICE
I, Tammy L. Kelly, an employee of the law firm of MANCKE WAGNER HERSHEY & TULLY,
hereby certify that I am this day serving a copy of the foregoing document to the attorneys or
parties of record in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
postage prepaid, at Harrisburg, Pennsylvania, on the 28th day of January, 2002 at the address
listed below:
George Kabusk, Esquire
PA Department of Transportation
Riverfront Office Center, Third Floor
1101 South Front Street
Harrisburg, PA 17104-2516
B}C ~ --hk-l\DO I A
Tammy L. Kelly ~C
MANCKE WAGNER HERSHEY & TULLY
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JAMES DOYLE, III,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Defendant
No. 01-6027 CIVIL TERM
ORDER OF COURT
AND NOW, this 21st day of March, 2002, upon
consideration of the appeal from license suspension filed
in the above-captioned matter, and following a second
period of hearing held on this date, and the hearing having
not yet been concluded, the record shall remain open, and a
further period of hearing is scheduled for Thursday, June
6, 2002, at 1:30 p.m., in Courtroom No.1, Cumberland
County Courthouse, Carlisle, Pennsylvania.
It is noted that, at the time of the second
adjournment on today's date, the Appellee/Respondent,
Commonwealth of Pennsylvania, Department of Transportation,
had completed presentation of the testimony of Officer
Brian Staley of the New Cumberland Borough Police
Department, and Defendant's counsel had completed the
cross-examination of Officer Staley.
It is further noted that at the time of the
second adjournment, Commonwealth's Exhibit 1 (DL-26 form)
had been identified and admitted. No further exhibits had
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been identified or admitted. At the time of the second
adjournment, the Commonwealth was preparing to call Agent
Ralph Richwine as its second witness.
~avid Hershey, Esquire
For the Plaintiff
~orge Kabusk, Esquire
For the Defendant
wcy
By the Court,
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...) 03-627-02 L ~3
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JAMES DOYLE, III,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Defendant
No. 01-6027 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
DAY ONE
Proceedings held before the Honorable
J. WESLEY OLER, JR., Judge,
on Thursday, March 21, 2002,
commencing in the Divorce Master's Hearing Room,
9 North Hanover Street, Carlisle, Pennsylvania,
at 2:25 p.m., and reconvening in Courtroom No.1,
Cumberland County Courthouse, Carlisle, Pennsylvania,
at 3:12 p.m.
APPEARANCES:
David Hershey, Esquire
For the Plaintiff
George Kabusk, Esquire
For the Defendant
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I N D E X TOW I T N E SSE S
FOR THE DEFENDANT
Brian Staley
DIRECT CROSS REDIRECT RECROSS
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I N D E X TOE X H I BIT S
FOR THE DEFENDANT
No. 1 - DL-26 form
MARKED
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3
March 21, 2002
Divorce Master's Hearing Room
2:25 p.m.
4 THE COURT: This is the time for a hearing
5 in the case of James Dovle. III. versus Commonwealth of
6 Pennsvlvania, DeDartment of TransDortation, Bureau of
7 Driver Licensinq, at No. 01-6027 CIVIL TERM. This is a
8 license suspension appeal case. We will let the record
9 indicate that the Appellant/Petitioner, James Doyle, III,
10 is present with his counsel, David E. Hershey, Esquire.
11 The Commonwealth is represented today by George Kabusk,
12 Esquire. Did counsel wish to make opening statements or
13 proceed directly to the evidence?
14 MR. HERSHEY: I don't have any opening
15 statements.
16
MR. KABUSK: The Department is ready to
17 proceed, Your Honor.
18
THE COURT: All right. Mr. Kabusk.
19 MR. KABUSK: By official notice dated
20 September 21st, 2001, the Department notified James M.
21 Doyle, III, driver's license number 16528999 that as a
22 result of his violation of Section 1547 of the Vehicle
23 Code, related to chemical test refusal on 8/10 of 2001, his
24 driving privilege was being suspended for a period of one
25 year. The Department now calls Officer Brian Staley.
3
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2
Whereupon,
BRIAN STALEY
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. KABUSK:
6 Q Officer Staley, please state your name,
7 spell your name for the record?
8 A Brian Staley. S-t-a-l-e-y.
9 Q Where are you employed?
10 A New Cumberland Borough.
11 Q During the course of your official duties,
12 have you had occasion to investigate an alleged incident of
13 DUI on or about August 10th of 2001?
14 A Yes.
15
16
Q
A
please tell the Court about that incident?
On this date, it was approximately 1:28 in
17 the morning, I was operating a marked police cruiser in
18 full uniform, conducting patrol activities. I had just
19 turned south onto Poplar Avenue from Fourth Street and was
20 traveling south on Poplar when I noticed a passenger car
21 stopped at the intersection of Third and Poplar.
22 This particular vehicle had a driver's side
23 headlight out. As I continued through the 300 block of
24 Poplar Avenue towards the Third Street intersection, the
25 vehicle remained stopped at the stop sign. Once in the
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1 intersection, the vehicle proceeded into the 300 block of
2 Third Street. I initiated a traffic stop at the
3 intersection of Fourth Street and Poplar Avenue for
4 violation of Pennsylvania Vehicle Code pertaining to
5 general lighting requirements.
6 Q Prior to that, did you notice anything
7 unusual about the stop?
8 A At the time of the stop, the Defendant's
9 vehicle was not pulled off the road but came to a stop at
10 the intersection.
11
12
Q
A
How is that unusual?
Well, generally when someone activates their
13 emergency lights, a person will go off to the right-hand
14 side of the road. He stopped right at the intersection.
15 Q Okay. Thank you. Please proceed.
16
A
Upon walking up to the driver's side of the
17 vehicle, I spoke with the operator of the vehicle who was
18 identified later to be James Doyle who's seated here today
19 beside defense counsel. At that time I explained the
20 reason for the stop, and I had asked him if he was aware of
21 it, and he indicated he was not aware of it.
22 I indicated-- I asked him if he wanted to
23 look at the violation that I had stopped him for. He
24 indicated that he did. So we-- while we were speaking
25 initially there at the window, from approximately a foot or
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1 so, maybe two feet away, I could smell alcoholic beverages
2 emitting from the Defendant. As we walked, moved to the
3 front of the vehicle, I noticed Mr. Doyle stagger. Outside
4 of the vehicle, I noticed that he was swaying and that his
5 eyes were red and bloodshot.
6 And I could from a distance of approximately
7 three feet or so, I could again smell the odor of alcoholic
8 beverages emitting from him. At that time I asked to see
9 his driver's license, registration, insurance, and we moved
10 back to the-- I'm sorry, the Defendant moved back to the
11 vehicle, entered the vehicle again, and at that time he
12 handed me his driver's license but did not give me the
13 registration or the insurance.
14 I asked the second time for the registration
15 and insurance. At that time I noticed that Mr. Doyle had
16 the registration card and the insurance card. He handed me
17 the registration card and was fumbling with the insurance
18 card but did not hand it to me and started to put it away.
19 Then I asked the third time for the
20 insurance card, and he proceeded to give it to me. These
21 were some clues that I picked up on based on my training to
22 perhaps that there might have been some type of cognitive
23 impairment here. Thus, I asked, I engaged in brief
24 conversation with the Defendant regarding where he was
25 coming from, where he was headed. In speaking with him
6
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1 additionally, I could smell the odor of alcoholic beverages
2 upon his breath.
3 I had asked him if he had been drinking. He
4 indicated that he had, I believe, one beer earlier. At
5 that point I asked him if he would be willing to submit to
6 field sobriety tests. He indicated that he would. We-- as
7 the Defendant exited the vehicle, I noticed that he used
8 his hand and placed it on the door to exit the vehicle. As
9 we moved back to the rear of the vehicle between his car
10 and my patrol vehicle, again I noticed him to sway. I
11 explained and demonstrated the field sobriety tests which
12 included the walk and turn. The Defendant scored a six
13 clues out of a possible eight clues on the walk and turn.
14 And I demonstrated the one-leg stand. The one-leg stand
15 resulted in a maximum of four clues.
16
THE COURT: Can you be specific as to which
17 clues were scored in the walk and turn and in the one-leg
18 stand?
19
THE WITNESS: Sure. During the instruction
20 stage of the walk and turn, I noticed that the
21 Defendant's-- after he had been instructed to put his right
22 foot directly in front of his left foot, heel-to-toe, that
23 his feet broke apart and stepped out of that position. And
24 I also noted that he started to walk too soon on another
25 attempt after being instructed to remain in that position
7
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1 with his right foot directly in front of his left foot.
2 Once he did begin the test, Mr. Doyle took
3 steps not heel-to-toe, but rather, I would measure and
4 estimate, about a foot apart, with his feet to the side of
5 his lead foot, essentially walking a normal walk rather
6 than how it was instructed and demonstrated to him, which I
7 counted to be missing heel-to-toe and stepping off line.
8 As he did his first nine steps, I noticed
9 that he raised his arms. When he got to the end of nine
10 steps, rather than pivoting on his lead left foot and
11 taking a series of small steps with his right foot, he
12 lifted his pivot foot and a couple large steps with his
13 right foot, turned around quickly, began to walk nine steps
14 back, stumbled, put his right hand on the fender of his
15 vehicle on the passenger side, and continued his nine steps
16 then, again approximately a foot in between steps. The
17 steps were not in line, as far as directly in front of each
18 other, and he had his arms raised. That's how I came to
19 score six clues.
20 On the one-leg stand, what had happened was,
21 after giving the instructions, Mr. Doyle raised his leg or
22 extended his leg, and he put his-- I noticed that during
23 the initial ten second block, that he swayed that his torso
24 or his extended leg was swaying back and forth, that he
25 used his arms to balance himself in that he raised them
8
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from the sides about waist level, which would be
approximately 18 inches or so away from his body, and that
he put his foot down.
I again noticed the same clues during the
second block, 11 and 20 seconds. And then between the 20
and 30 second block, Mr. Doyle raised his leg from
extension, almost bent it upward toward his torso to hold
his leg up. And he put his foot down again during this
particular time block. Thus, I scored him a maximum of
four clues.
Based upon the training that I've had
12 regarding DUI investigation and detection, based upon my
13 experiences having made previous DUI arrests, signs that
14 there was impairment which would include muscle control,
15 some cognitive impairment, and based upon the fact that I
16 had the physical signs of alcohol use which would include
17 the bloodshot eyes which were glassy, the smell of
18 alcoholic beverages, and his admission to drinking at least
19 one beer, I made a decision at approximately 141 hours that
20 morning to arrest Mr. Doyle for DUI.
21 BY MR. KABUSK:
22 Q Officer Staley, how many field sobriety
23 tests did you conduct?
24 A There was the walk and turn, the one-leg
25 stand, and then the HGN.
9
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1
Q
Okay. And what did you determine regarding
2 the HGN test?
3
MR. HERSHEY: We have to object to that,
4 Your Honor, without a scientific foundation establishing
5 both general acceptance of that test in the scientific
6 community and the qualifications of a police officer to
7 render an opinion on the scientific issue correlating the
8 presence of eye gaze nystagmus with impairment due to
9 alcohol and further correlation of eye gaze nystagmus with
10 the ability of someone to safely operate a motor vehicle.
11 THE COURT: Mr. Kabusk, do you have a
12 response to that objection?
13 MR. KABUSK: Your Honor, I'm just asking the
14 officer the results of that in regard to reasonable
15 grounds. I'm not trying to prove the fact of the HGN. I'm
16 just asking if he passed or failed the HGN.
17 THE COURT: Do you have any cases on point
18
19
20
21
for this type of hearing?
MR. KABUSK:
THE COURT:
MR. HERSHEY:
No, I don't.
Do you, Mr. Hershey?
In the context of a DOT
22 license suspension appeal hearing, I'm not aware that there
23 are any cases, Your Honor.
24
THE COURT: All right. I'll err on the side
25 of caution and sustain the objection.
10
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1 BY MR. KABUSK:
2 Q Officer Staley, during the course of this
3 initial interaction with the Petitioner, did you notice
4 anything unusual about him in how he responded to your
5 commands and your conversations?
6 A Initially, when speaking with him there at
7 the window and at the front of the car, I did not notice
8 anything out of the ordinary. Once we had moved back to
9 the rear of the vehicle to do field sobriety, Mr. Doyle
10 indicated that he didn't have his hearing aid in, and I
11 offered to allow him the opportunity to retrieve it, put it
12 in. He chose not to. During field sobriety, there were a
13 couple of times where he would ask me to repeat, which I
14 did, in a louder voice.
15
16
17
18
19
20
21
22
Q
After you repeated it, what did you
determine in regard to the reception of that communication?
A Mr. Doyle appeared with his body language,
shaking of his head, that he understood and then we moved
on to the next instructions of the test itself.
Q Okay. Did he tell you of any other
conditions that he has?
A
After I had arrested him and I was in a
23 position, what we call a position of advantage, which was,
24 I had handcuffed him and was transporting him back to my
25 police vehicle, he indicated that he had, what I thought at
11
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1 the time he said, Myers disease, but as it turns out
2 apparently, it's Meniere's disease.
3 Q Well, I'll just ask you, after you
4 determined to place him under arrest, then what happened?
5 A I transported him to the West Shore Booking
6 Center, which we arrived at approximately 1:57 a.m. that
7
8
morning.
Q
It was during the transport that he told
9 you--
10 A It was actually after I advised him that he
11 was under arrest for DUI. I had handcuffed him and was
12 taking him back to my vehicle when he indicated that he had
13 some type of disease.
14
Q
Okay. Then what happened?
15 A We transported-- well, his vehicle was
16 secured. His friend was found a ride home, and then we
17 transported him to the West Shore Booking Center. At that
18 time when we arrived, I read Mr. Doyle PA PennDOT form
19 DL-26, the Implied Consent Law.
20
21
22
Q
A
Is this the form that you read to him?
Yes.
MR. KABUSK: I move to have this marked as
23 Commonwealth's Exhibit NO.1.
24 (Whereupon, Commonwealth's Exhibit 1
25 was marked for identification.)
12
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BY MR. KABUSK:
Q Please proceed.
A When I read the DL-26 form to Mr. Doyle, I
read sections or those items numbered one, two, three, and
four, and subsection letters a, b, and c to him.
6 Q Could you read aloud what you read to him?
7 A Yes.
8 THE COURT: Would you read slowly for the
9 stenographer?
10 THE WITNESS: I'll try, Your Honor.
11 THE COURT: Thank you.
12 THE WITNESS: Please be advised that you are
13 now under arrest for Driving under the Influence of alcohol
14 or a controlled substance pursuant to Section 3731 of the
15 Vehicle Code. I am requesting that you submit to a
16 chemical test of breath. It is my duty as a police officer
17 to inform you that you if you refuse to submit to the
18 chemical test, your operating privilege will be suspended
19 for a period of one year.
20 The constitutional rights you have as a
21 criminal Defendant, commonly known as the Miranda rights,
22 including the right to speak with a lawyer and the right to
23 remain silent, apply only to criminal prosecutions and do
24 not apply to the chemical testing procedure under
25 Pennsylvania's Implied Consent Law, which is a civil not a
13
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1 criminal proceeding.
2 You have no right to speak to a lawyer or
3 anyone else before taking the chemical test requested by
4 the police officer nor do you have a right to remain silent
5 when asked by the police officer to submit to the chemical
6 test. Unless you agree to submit to the test requested by
7 the police officer, your conduct will be deemed a refusal
8 and your operating privilege will be suspended for one
9 year. Your refusal to submit to chemical testing under the
10 Implied Consent Law may be introduced into evidence in a
11 criminal prosecution for driving while under the influence
12 of alcohol or a controlled substance.
13 BY MR. KABUSK:
14
Q
Then what happened?
15
A
After reading that to Mr. Doyle, I then
16 afforded Mr. Doyle the opportunity to review it on his own.
17 I placed it in front of him. He took it in his hands and
18 placed it in front of his body as if he was reading it or
19 reviewing the information. This lasted for several
20 minutes. In total, this review of the DL-26 lasted for
21 approximately 20 to 25 minutes.
22 During that time, he would-- he indicated
23 that he wanted to talk to a lawyer, and then I readvised
24 him that he had no right to speak to a lawyer or anyone
25 else before taking the chemical test, and I pointed out
14
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1 subsection letter b on the DL-26 form. He had other-- he
2 had indicated that he didn't understand. When I would ask
3 him if he wanted to take the test, he would respond by
4 saying he didn't understand or he wanted to speak to a
5 lawyer.
6 After, I would estimate, maybe three or four
7 times of asking Mr. Doyle if he was going to submit to the
8 breath test, his answer at approximately 2:25 or 2:22,
9 somewhere in that time frame, was, no, that he didn't
10 believe being arrested-- being-- excuse me, I'll have to
11 look at my report. He didn't believe that having a
12 headlight out warranted being arrested. And there or
13 shortly thereafter, I transferred custody to Booking Agents
14 Richwine, Lang, and Brandt, and I departed.
15 Q Now during this period of time when you're
16 at the Booking Center and going over the DL-26, how did Mr.
17 Doyle appear to respond to you?
18 A I would say, he was normal. It was normal
19 interaction. We would engage in conversation. He would
20 ask questions. I would answer it. He would then pick the
21 paper back up and look at it some more. I didn't detect
22 anything out of the ordinary there.
23 Q Did he appear to read the DL-26?
24 A Yes, he did.
25 Q Did he-- did you notice any physical or
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5
6
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medical disabilities?
A No.
Q Did he tell you of any physical or medical
disabilities?
A
Q
A
Not at the Booking Center.
Prior to that, what did he tell you?
He indicated that he had a-- he wore a
8 hearing aid, and then later he said that he had some type
9 of disease. Like I said, I thought it was Myers disease,
10 but it turns out, it was worded a little bit differently.
11 Q And regarding the hearing aid, did you offer
12 to allow him to put the hearing aid in?
13 A Yes, I did.
14
15
16
17
18
19
20
21
22
23
24
25
Q
A
Q
And what was his response?
No.
Did he tell you-- was that in response? He
said, no?
A He shrugged it off. I believe his body
language was, he shrugged it off, and he said, no, or he
shook his head, no, or he didn't need it-- I don't remember
exactly how he verbalized it, but it was a combination of
orally saying, no, and his body language were consistent
with each other.
Q So did he appear to be understanding what
you were telling him during this encounter?
.
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A I believe so, yes.
Q Did he ever submit to the requested test?
A No.
Q And why was that-- how did he-- how did you
take it to be a refusal?
A
After approximately 20 minutes of this
review, I had asked him, will you take the breath test or
submit to the breath test? His response was, no. He
verbally expressed, no, and then had a qualifying or an
additional statement, that having a headlight out didn't
warrant being arrested. At that time, based upon the time
frame that we were taking here, the fact that I had asked
him at least three or four times previous to this, this
time, and he didn't give me an answer at that point, I
deemed his conduct to be a refusal after he verbally said,
no.
Q Now when you were speaking to him in regard
to the DL-26 and requesting him to submit, you had
testified earlier that he what, asked for an attorney, and
what were his other responses?
A He would like to speak to a lawyer, and the
other ones were that he didn't understand.
Q
And is that what he said or did he ask you
24 other questions?
25
A
That's what I recall.
17
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1
Q
Okay. And you what, then turned him over to
2 the Booking Center?
3 A That's correct.
4
Q
Do you know what particular booking agent
5 was on duty?
6
A
Sure, it was Ralph Richwine, Agent Lang, and
7 I believe Agent Brandt.
8 MR. KABUSK: I move for the admission of
9 what's been marked as Commonwealth's Exhibit NO.1.
10 THE COURT: Mr. Hershey.
11 MR. HERSHEY: Which one did you mark,
12 George? If I could just take a look at it?
13 MR. KABUSK: Right there. I provided Mr.
14 Hershey with a copy of the DL-26.
15 MR. HERSHEY: I have no objection to the
16 admission of Exhibit 1.
17 THE COURT: Commonwealth's Exhibit 1 is
18 admitted.
19 (Whereupon, Commonwealth's Exhibit 1 was
20 admitted into evidence.)
21 MR. KABUSK: Okay. No further questions at
22 this time for this officer.
23 THE COURT: I just have one question, if I
24 might.
25 BY THE COURT:
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1 Q You mentioned that you had prior training in
2 detecting the offense of Driving under the Influence. Can
3 you be anymore specific about the training?
A
Sure, Your Honor. I've received the
certificate of instruction from the Cumberland County
District Attorney's office regarding the administering of
SFST's. I'm also certified by the state as an Intoxilyzer
5000 EN operator. I've participated in DUI checkpoints as
well as roving patrols. At this time, I believe,
approximately 30 to 35 DUI arrests.
Q By this time, do you mean the time of--
A Of August 10th.
Q All right. I think you said you had had
eight previous Driving under the Influence arrests. Did I
misunderstand?
A
Q
A
Q
I'm not sure.
You feel you had how many?
Oh, I would say, probably 30 or 35.
Okay. And your certificate from the
20 Cumberland County District Attorney's office represented
21 what in terms of training?
22 A That I had received training in the
23 administration of standardized field sobriety tests.
24
25
Q
A
And can you detail the training?
Sure. That is a course that is-- involves
19
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1 classroom instruction in what to look for in people who
2 have been drinking alcoholic beverages, what to look for in
3 people who are operating vehicles under the influence of
4 alcohol. It includes your practical examination or
5 practical in which you repeat the tests with other
6 participants in the class and review in front of
7 instructors.
8
How long a course is it?
Q
9
Twenty-four hours.
A
10
THE COURT: We will take a recess at this
11 point.
12 (Whereupon, a recess was taken at 2:45 p.m.)
13
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March 21, 2002
Courtroom No. 1
3:12 p.m.
THE COURT: We will let the record indicate
5 that the Court is again in session in the case of James
6 Dovle, III, versus Commonwealth of Pennsvlvania. DeDartment
7 of TransDortation. Bureau of Driver Licensinq, at No.
8 01-6027 CIVIL TERM. Earlier on this date, the Court had
9 adjourned with a view toward continuing the hearing on a
10 subsequent date.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
However, conditions are such that we are
able to continue the case on this date, and we will let the
record indicate that the Appellant/Petitioner is present in
court with his counsel, David Hershey, Esquire, and the
Commonwealth of Pennsylvania, Department of Transportation,
which is the Appellee/Respondent in the case is represented
by George Kabusk, Esquire.
Officer Staley, I believe you were about to
be cross-examined by Mr. Hershey. And you are still under
oath.
CROSS EXAMINATION
BY MR. HERSHEY:
Q Officer Staley, good afternoon. You didn't,
in your observations of Mr. Doyle's vehicle, observe any
erratic driving, is that correct?
21
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1 A Not what I would consider erratic, no.
2 Q Now you had originally indicated-- scratch
3 that. You've testified in other proceedings related to
4 this case, is that correct?
5 A Yes.
6 Q And you've prepared a criminal complaint
7 charging an alleged violation of Driving under the
8 Influence in conjunction with this case, is that correct?
A
Yes.
Q In your original criminal complaint, you had
indicated the time of the violation to be 1:49 a.m., is
that correct?
A On my report, it did appear to be 1:49. At
the preliminary hearing, we did make an amendment to that
to read 1: 41 .
Q
Okay. Acknowledging then that you made that
17 amendment at the preliminary hearing change in the time of
18 the stop, do you concede that you made an error in
19 reporting what time a particular event in Mr. Doyle's case
20 transpired?
21
A
In the affidavit, the time is accurate.
22 It's 1:41. On the front, on the criminal complaint itself,
23 it says 1:49. That was the time of transport.
24 Q Okay. Did you also previously testify that
25 the time that you arrested Mr. Doyle was 0121?
22
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A
Not to my recollection.
2 Q Okay. Do you recall testifying in a
3 preliminary hearing regarding this incident before District
4 Justice Clement?
5
6
7
8
A
Yes.
MR. HERSHEY: May I approach the witness,
Your Honor?
THE COURT: Certainly.
9 BY MR. HERSHEY:
10
Q
Officer Staley, I'm handing you a transcript
11 of preliminary hearing dated December 17th, 2001, before
12 District Justice Charles Clement. And I'm referring to
13 page 12, line 11. Could you read that to yourself, please?
14 A Okay.
15
16
17
Q
Did you have an opportunity to review that
transcript?
A
This is the first I've seen it.
18 Q Okay. Did you testify before District
19 Justice Clement that the time of arrest was 0121?
20
A
On the transcript, it says I did.
21 Q Okay. Now if I understood your original
22 testimony earlier today, you were traveling on Fourth
23 Street, is that correct? Is that your testimony today?
24
A
I was, but are you referring to when I first
25 observed Mr. Doyle's vehicle?
23
,
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Q
A
Yes.
That was on Poplar Avenue.
Okay. Which vehicle was on Poplar, yours or
Q
his?
A Both of us.
Q Okay. Do you recall, after the traffic
stop, observing Mr. Doyle's registration card to be inside
a plastic folder?
A No, I don't remember that.
Q
You don't remember either way, whether it
11 was true or not true?
12
A
I don't remember.
13 Q Okay. When you indicated to Mr. Doyle that
14 he had a headlight out, did you have him walk to the front
15 of his vehicle to view the headlight?
16 A I asked him if he wanted to look for
17 himself. He indicated that he did. So we moved to the
18
19
20
21
22
23
24
25
front of the vehicle.
Q Okay.
Did he lean over to look at the
headlight?
A
We moved far enough in front of the vehicle
that he could see it from standing upright.
Q Okay. Is it a correct statement that when
you stopped Mr. Doyle, he was not wearing his hearing aid
at that time when you stopped him?
24
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2
A
I don't know that.
Q
Okay. As you indicated earlier today, you
3 had been trained in the administration of standardized
4 field sobriety tests?
5
6
A
Yes.
Q
And that training was given through the
7 Cumberland County District Attorney's office, is that
8 correct?
9
10
A
Yes.
Q
And your instructors were Agent McLaughlin
11 and Officer Jeffrey Potteiger, is that correct?
12
13
A
Yes.
Q
And you received a training manual as part
14 of your course of instruction?
15
16
A
Yes.
Q
And as part of that course of instruction,
17 you were trained on the administration of the walk and turn
18 test?
19
20
A
Yes.
Q
And in your training, and more particularly
21 in your training manual, does that require that
22 individuals, does that state that individuals with back,
23 leg, or middle ear problems have difficulty performing the
24 walk and turn test?
25
A
Yes.
25
~ ~ .?" -
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(')
1 Q And your training, more particularly your
2 training manual, states that the test conditions for the
3 walk and turn test requires a designated straight line and
4 should be conducted on a reasonably dry, hard level,
5 non-slippery surface, is that correct?
6
7
A
Q
Not totally, no.
Okay. Which part is not-- which part don't
8 you agree with?
9 A As far as what's considered a straight line
10 or a straight line being present.
11
Q
Okay. What specifically was your training
12 on that issue?
13 A Ideally, you would have a line to use, a
14 straight line to use. However, out on the street, you're
15 going to run into situations where there are no lines
16 present such as in this particular instance. In that case,
17 the attempt to use landmarks available to you such as curbs
18 or even a reasonable person could say that they're walking
19 a straight line if they place one foot directly in front of
20 the other.
21
22
23
24
Q
So you're interpreting a landmark to be a
curb, for example?
A For example.
Q
You were also trained in the one-leg stand
25 field sobriety test, is that correct?
26
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1
A
Yes.
2 Q And in your training, more particularly in
3 your training manual, isn't it true that the one-leg stand
4 indicates that, or states that, persons with back, leg, or
5 middle ear problems or people who are overweight by 50 or
6 more pounds have difficulty performing the test?
7
8
A
Q
Yes.
There's also, isn't it true, Officer Staley,
9 that there is a section in your training manual pertaining
10 to note taking regarding your observations at a possible
11 DUI stop?
12
13
14
15
16
17
18
19
20
21.
22
23
A
Yes.
Q Okay. In particular, does your training
manual indicate that, because evidence of a DUI violation
is short lived, police officers need a system for recording
field notes at scenes of DUI investigations?
A Yes.
Q With respect to the walk and turn test,
would you agree that your training has taught you that
ideally there should be a line present?
A Ideally, under perfect conditions, there's a
line, yes.
Q
Okay. With respect to the landmarks that
24 you referred to as a guide for field sobriety tests, what
25 landmark did you use for Mr. Doyle in this particular case?
27
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o
A I attempted to apply the edge of the
pavement of the roadway there, although, again, if the
person would have-- if Mr. Doyle, as I demonstrated, would
have placed heel-to-toe, placed one foot directly in front
of the other, heel-to-toe, again, he would have been
walking the straight line between two points.
Q Okay. When you say, between two points, if
the curb is one landmark, what is the other?
A Well, we align them up along the pavement,
but in addition to that, again, it was my belief that as
long as he would place one foot directly in front of the
other one, he would be walking a straight line between two
points.
Q
In essence, two imaginary points, is that
what you mean?
A Essentially, yes.
Q Okay. The evening of this incident, Mr.
Doyle indicated to you that he had Meniere's disease, is
that correct?
A He indicated he had some type of disease.
I
didn't know what it was or I didn't hear him say Meniere's
disease.
Q You thought it was Myers disease?
A
Q
Yes.
In either event, you weren't familiar with
28
.~j
2
3
4
5
6
7
8
.' , " ,'~.' ~..' 4', .,.
l,,,, ~,' ~'\k:
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1 the condition at the time of the incident, is that correct?
A
That's correct.
Q Subsequent to this incident, you did some
investigating, is that correct?
A Yes.
Q
A
Q
Regarding Meniere's disease?
Yes.
And is it a fair statement that you
9 determined that it's an inner ear disorder which includes a
10 gradual loss of hearing, and that one of the symptoms will
11 be episodes for attacks where the person may have problems
12 with their balance?
13
14
15
16
LEFT1: Objection, Your Honor. He's not a
doctor.
THE COURT:
MR. HERSHEY:
Mr. Hershey.
Officer Staley has given
17 testimony to this effect in a prior proceeding, and that's
18 the reason why I'm going there.
THE COURT: Was there an objection at that
19
20 time?
21
22
23 sustained.
24 BY MR. HERSHEY:
25
MR. HERSHEY: No.
THE COURT: All right. The objection is
Q
You've prepared a score sheet, for lack of a
29
-
'"' v .o~k ,;Ji-:~,_
o
e
1 better word, entitled pre-arrest screening in this
2 particular case, is that correct?
3
A
Yes.
4 Q That pre-arrest screening sheet was-- became
5 part of your official file in this case, is that correct?
6 A Yes.
7
8
9
Q
A
Q
That wasn't prepared in the field, was it?
No.
That was prepared sometime later after Mr.
10 Doyle was taken back to the Booking Center?
11 A Yes, that was taken off of my field notes.
12 Q Okay. Are you indicating then that there
13 are field notes?
14
15
16
17
A
Q
A
Q
Yes.
You've maintained those field notes?
Yes.
You had used the Booking Center prior to
18 August the 10th, is that correct?
19
20
21
22
A
Yes.
Q When I say, August the 10th, I mean, August
the 10th of 2001?
A
I understand.
23 Q Okay. Were you aware prior to August the
24 lOth, that the Booking Center had video and audio taping
25 capability?
30
,
'- 1 ,,- -," ,[ 'j" ~r".\F,'
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1
2
A
Q
Yes.
Were you aware at the time of Mr. Doyle's
3 processing that the Booking Center had video and audio
4 taping capability? Were you aware on August the 10th that
5 there was video and audio taping capability available at
6 the Booking Center?
7
8
9
10
11
12
13
14
15
16
17
18
A
Yes.
Q At the time either prior to or during the
field sobriety tests, isn't it true that you did not ask
M~. Doyle whether he had any physical conditions that might
interfere with the administration of those tests?
A I did not, which I'm not required to do.
Q Your notice of chemical test refusal form,
DL-26, that's been marked as P-1 in this case?
A
Q
A
Q
Yes.
You've had a chance to review this?
Yes.
Okay. I note that there's a seal on the
19 bottom left-hand corner of what appears to be a notary
20 public, which is dated August 20th of 01, is that correct?
21 A Yes.
22 Q Did you take this form to a notary before
23 you submitted it to PennDOT?
24
25
A
Q
Yes.
Okay. So there was a lapse of time between
31
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o
o
1 the incident with Mr. Doyle of August the 10th and the date
2 you actually sent this form in to DOT, is that correct?
3
A
Yes.
4 Q Okay. Now before you sent the form into
5 DOT, was it your belief that Mr. Doyle had told you that he
6 had Meniere's disease?
7
MR. KABUSK: Objection, Your Honor. What's
8 the relevance?
9 THE COURT: Mr. Hershey.
10 MR. HERSHEY: Judge, there is-- it's
11 relevant for two reasons. One, the training for FST
12 indicates that, as indicated on cross, that some persons
13 with inner ear disorders may have difficulty performing
14 field sobriety tests, and we believe that Meniere's is
15 related to that, which would go to the reasonable grounds
16 to request the test. Those questions weren't asked of Mr.
17 Doyle until after this incident-- was either during or
18 after the time this incident was deemed to be a refusal.
19
THE COURT: Okay. What is the question that
20 you're asking now?
21
MR. HERSHEY: The question is, did you
22 become aware prior to notifying PennDOT of the alleged
23 chemical test refusal that Mr. Doyle had Meniere's disease?
24 THE COURT: Prior to notifying PennDOT, not
25 prior to administering the field sobriety tests?
32
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
"- ,,>,..,~ - t~J ~""~;,""";,
o
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1
MR. HERSHEY: Prior to notifying PennDOT,
2 Your Honor.
3 THE COURT: How would that be relevant to
4 this proceeding?
5 MR. HERSHEY: I'll withdraw the question.
6 THE COURT: All right.
7 BY MR. HERSHEY:
8
You became aware, Officer Staley, that Mr.
Q
9 Doyle wore a hearing aid, is that correct?
A
Yes. Well, that's what he indicated to me.
Q Okay. During the walk and turn test, you
acknowledged that there's-- there was no visible line for
Mr. Doyle to walk on, is that correct?
A That's correct.
Q Was there a sidewalk in the vicinity of
Fourth and Poplar where Mr. Doyle could have done the walk
and turn test?
A No.
Q After you determined Mr. Doyle failed to
complete the field sobriety test to your satisfaction, you
placed him under arrest, is that correct?
A That's correct.
Q And you put him in handcuffs at the scene,
is that correct?
A
Yes.
33
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,
,'~- .'k -, -li',~l~'~:i'
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1
Q
You transported Mr. Doyle to the West Shore
2 Booking Center, is that correct?
3
4
A
Yes.
How long did it take you to get from the
Q
5 intersection at Fourth and Poplar to the Booking Center?
6
7
A
Q
About 10 to 12 minutes.
Once at the Booking Center, was Mr. Doyle
8 still in handcuffs?
9 A I misspoke that last question. I don't
10 think it was that long. It was probably less than 10
11 minutes.
12
Q
That's in response to the question, how long
13 did it take for you to get from the intersection at Fourth
14 and Poplar to the Booking Center?
15
16
A
Yeah.
Once at the Booking Center, was Mr. Doyle
Q
17 still in handcuffs?
18
A
Once we arrived, yes. Then he was taken out
19 of the handcuffs and seated beside the Intoxilyzer and then
20 given Pennsylvania's Implied Consent Law.
21
Q
Did Booking Agent Lang take the cuffs off
22 Mr. Doyle?
23 A I don't remember.
24 Q Do you agree that Mr. Doyle as well--
25 scratch that. Isn't it true that Mr. Doyle had to be
34
'it
3
4
5
6
7
S
9
10
11
~'-~ -- ,~-,
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1 searched as part of standard procedure as well as having
2 the handcuffs removed?
A
I don't remember Mr. Doyle being searched,
but that is generally the procedure that is followed, yes.
Q Okay. Do you agree that there was no
discussion regarding either implied consent or O'Connell
prior to you reaching the Booking Center?
A During transport, I advised him that where
we were going, Lower Allen Township building, and I advised
him that he would be asked to take a breath test.
Q
Did you get any further explanation, other
12 than what you just stated, en route to the Booking Center?
13
14
15
16
17
lS
19
20
21
22
A
No.
Q Okay. When you got to the Booking Center
and you had the handcuffs taken off, didn't you have to
walk into another area to retrieve the DL-26 form?
A No.
Q
Where was the DL-26 form?
A They're right there above the Intoxilyzer.
Q Okay. Would you agree that there was some
period of time that Mr. Doyle would have been searched
before being placed next to the Intoxilyzer?
23 MR. KABUSK: Objection, Your Honor. What's
24 the relevance of this line of questioning?
25
THE COURT: Mr. Hershey.
35
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1
MR. HERSHEY: Judge, as I understood the
2 direct testimony, at least a portion of the Commonwealth's
3 theory, if not the entire theory, is that this was a
4 refusal by delay. And I'm trying to establish exactly how
5 much time Mr. Doyle spent with the DL-26, and I think that
6 any time that he was delayed, as is part of protocol,
7 that's going to whittle away the time that he spent with
8 the DL-26 form that would be relevant in determining
9 whether or not he was delaying or stalling.
10
THE COURT: Mr. Kabusk.
11
MR. KABUSK: Your Honor, I believe that
12 there was testimony that Officer Staley spent 20 to 25
13 minutes going over the DL-26, and the Petitioner replied,
14 nO,he wasn't taking a test. I'm not at all implying it's
15 a delay case.
16
THE COURT: All right. I think the officer
17 did say that one of the considerations in his mind was, he
18 had spent a considerable amount of time with Appellant, and
19 in spite of all that time, it simply ended up as a no. So
20 I'll permit the question.
21 BY MR. HERSHEY:
22
Q
Officer Staley, is it true that there was
23 some period of time that Mr. Doyle had to be searched
24 before he would be seated next to the Intoxilyzer?
25
A
Generally, that's what happens. I can't
36
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o
o
1
2
3
4
5
6
remember whether that happened in this particular case or
not. If it would have been, if it was done, it would have
been just a matter of minutes.
Q Okay.
MR. HERSHEY: Judge, I didn't see Agent
Richwine come in. Before I proceed further with
7 cross-examination, can we have the sequestration?
8
9
10
THE COURT: Mr. Kabusk.
MR. KABUSK: No objection, Your Honor.
THE COURT: All right. Agent Richwine, I'll
11 ask you to step out for a moment. Thank you.
12 At 3:45, I need to recess for about 10
13 minutes to conduct a pretrial conference, and then we can
14 resume.
15 BY MR. HERSHEY:
16 Q Officer Staley, who escorted Mr. Doyle to
17 the area where the chair was located for purposes of
18 implied consent?
19 A From where?
20
21
22
Q
A
Q
From where you entered the Booking Center?
I believe that would have been myself.
Okay. Were there three other booking agents
23 present when that occurred?
24
25
A
Q
Yes.
And would they be Agents Lang, Richwine, and
I
37
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5
6
7
8
9
10
11
12
13
14
15
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1
2
Brandt?
A
Yes.
3 Q Do you know which one of those three agents
4 was responsible for manning the videotape equipment?
A
No.
Q Did you make a verbal request to have the
videotape equipment activated once Mr. Doyle was taken into
the room with the Intoxilyzer?
A No.
Q As you were discussing implied consent with
Mr. Doyle, were you seated or were you standing?
A I was standing.
Q Was he seated?
A Yes.
Q
During that discussion you had with Mr.
16 Doyle, do you know where Mr.-- where Agent Lang was?
17 A At some points, he was in the room with us.
18 I don't know whether he was there the entire time or not.
19
20
21
22
Q
Okay. With respect to either Agent Richwine
or Agent Brandt, were either of those two gentlemen in the
room while you were discussing implied consent?
A I believe Agent Richwine was off to my right
23 seated. I believe so, but I'm not certain about that.
24 Q With respect to your incident report which
25 I've had an opportunity to review, does that indicate that
38
- ~ .~
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',,,
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o
1 you gave Mr. Doyle the opportunity to read implied consent,
2 specifically the DL-26, and that he responded to you that
3 he did not understand what you had read?
4 A I provided him with the form to read. I
5 allowed him the opportunity to read it. He reviewed it for
6 several minutes. And that's when some of the questions
7 started being asked after having a chance to review it.
8
9
10
11
All right.
Q
A Or statements being made, I should say, that
he wanted a lawyer.
Q
Your incident report also indicates, does it
12 not, that Doyle indicated that he did not understand what
13 was being asked?
14
A
Yes.
15 THE COURT: Not understand what?
16 MR. HERSHEY: What was being asked.
17 THE WITNESS: There were questions along
18 that line. He made those statements, yes.
19 BY MR. HERSHEY:
20
Again, referring to your report which I've
Q
21 seen, the first two pages of your report are dated August
22 the 10th, is that correct, in the top right-hand corner?
23 Do you have that with you?
24 A Yes.
25
Okay. The remaining four pages of your
Q
39
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. ~ . ~ ,. .',-, ' ;j _l i fftld"N~~;-::
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1 report, including the narrative in this case, are dated
2 September the 26th, is that correct?
3
4
A
Q
Do you want me to explain that?
Please, if you would?
5 A I believe that is the time that I pulled
6 them off of our computer system and not the time that I
7 wrote the report. On my pages, I have the top being the
8 10th of August. But I believe the September 26th is when I
9 pulled it off of the computer, printed a copy out for
10 myself.
11 Q Did I understand you correctly on your
12 direct exam that there were portions during the field
13 sobriety testing where Mr. Doyle asked you to repeat
14 things?
15 A During the-- there was that two or three
16 times, I believe it was, that he had asked me to repeat.
17
18
19
20
21
22
23
24
25
Q
And I don't know how much-- I don't think
you got into it in great detail, but as part of the field
sobriety tests, you were giving the subject instructions as
well as demonstrating the physical part, at least a
portion, of each of those tests, is that correct?
A Yes.
Q So in order for the subject to perform the
test in the optimum manner, they would both have to hear
you and see you?
40
.of
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
I
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0....
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A
That's correct.
Q
Your first-- the first time that you advised
Mr. Doyle of any implied consent warnings was 0157 hours,
is that correct?
A Approximately, yes.
Q And you've indicated you gave Mr. Doyle an
opportunity to review PennDOT form DL-26, is that correct?
A Yes.
Q There were different points during the time
that he was reviewing that form that he would ask questions
about the individual O'Connell warnings, is that correct?
A Other than making a statement about wanting
a lawyer, I don't remember any-- I don't remember any other
specific questions that your client had regarding the
warnings. I think at some point I read him the bottom line
there about this refusal being entered into evidence
against him in a criminal trial at some point.
Q Didn't he also ask you about what was the
penalty for not taking the test?
A That's what I'm referring to. I believe
it's tbat-- without having the form in front of me now, I
believe it's the line in subsection letter c, I believe,
and I repeated that to him. It's the very last line, I
believe.
Q Okay. So do we agree that there are at
41
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,
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1 least two aspects of the form that he had questions about,
2 his right to an attorney and the penalty for not taking the
3 test?
4
A
Yes.
5
THE COURT: Did you respond to those
6 questions?
7
THE WITNESS: I attempted to, Your Honor, by
8 using the DL-26 as my guidelines to answer his questions.
9
THE COURT: All right. I'm sorry to
10 interrupt, but I need to conduct a pretrial conference in
11 another case for a few moments, and we will resume after
12 that.
13 (Whereupon, a recess was taken at 3:44 p.m.
14 and proceedings reconvened at 4:05 p.m.)
15
THE COURT: Officer Staley, I believe you
16 are still under oath and are still testifying. We do need
17 to adjourn at about 4:30. It would be nice if we could get
18 the officer's testimony in today so he wouldn't have to
19 come back. Mr. Hershey.
20
MR. HERSHEY: Thank you, Your Honor.
21 Could I ask the court reporter to read back
22 my last question?
23
THE COURT: Sure.
24
(Whereupon, the court reporter read back the
25
last question.)
I
42
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6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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,~ 0
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o
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1 THE COURT: I think I had then asked, did
2 you respond to those questions, and he indicated he had.
3 MR. HERSHEY: Okay.
4 BY MR. HERSHEY:
Q Officer Staley, the exact statement that Mr.
Doyle made that you've interpreted as being a refusal, that
wasn't recorded contemporaneously with your conversation
with him, is that correct?
A I'm sorry. I don't understand the question.
Q Okay. Let me ask it another way. We agree
that or do we agree that there's no video and audio tape of
the moment of truth when you decided that what Mr. Doyle
had done was a refusal?
A I'm not aware of any videotape.
Q Okay. Do we agree that there is no notation
in a writing that you would have made contemporaneously
with that event that indicates that Mr. Doyle said he was
not going to take a test?
A I'm not sure if I put that in my field notes
or not.
Q Okay.
A I don't remember that.
Q Do you have those with you?
A I do.
Q Do you want to refer to them?
43
~'.^" " "li1JfilL4':'
~
'-'
40
1
2
3
4
5
6
A
I can, sure.
Q
Would it help refresh your recollection?
A
I didn't put it in my field notes.
Q
Okay.
A
What you had asked.
Q
Okay. So the answer to the last question
7 then would be, there is no written memorialization of what
8 he said?
9
A
Other than when I went back to the office,
10 cleared from the Booking Center, returned to the office,
11 and did my dispatch report, my initial report. I believe I
12 put it in that report, but I'm not certain about that.
13
Q
Okay. All right. I'm looking at DOT's
14 Exhibit P-1, and I also note, at least from my copy,
15 there's no time recorded on these warnings, is that
16 correct?
17
18
A
NO, I did not.
Q
Okay. And I also note from DOT form DL-26
19 the provision that says, I've been advised of the above,
20 signature of motorist. That appears to be blank, is that
21 correct?
22
23
24 Your Honor?
25
A
I'm sorry. Can I see that?
MR. HERSHEY: Can I approach the witness,
THE COURT: Certainly.
44
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1 BY MR. HERSHEY:
2
3
4
I'm handing the witness my copy of DOT's
Q
Exhibit P-1.
A
Are you talking--
5 THE COURT: Actually, I think it's
6 Commonwealth's Exhibit 1, if I'm not mistaken.
7
MR. HERSHEY: I stand corrected.
8 Commonwealth's Exhibit 1.
9 THE WITNESS: Your question again, please?
10 BY MR. HERSHEY:
11
12
13
14
15
16
17
18
19
20
21
22
23
Q Officer Staley, there's a provision on this
form, DL-26, about halfway down the page, that says, I have
been advised of the above, signature of motorist, and then
there is a signature line and the date. Do you see that?
A I do, yes.
Q Those two-- the signature line and the date
are blank, is that correct?
A
Yes.
Q Does that mean Mr. Doyle did not sign off
acknowledging the warnings?
A Yes.
Q
Okay.
THE COURT: Did you ask him to sign off or
24 don't you recall?
25
THE WITNESS: I don't recall.
45
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1 THE COURT: Okay.
2 BY MR. HERSHEY:
3 Q Well, as a follow-up question to that
4 question, did you take this form out of Mr. Doyle's hands
5 and indicate that you were treating this as a refusal?
6 A I don't recall. I believe it was laying on
7 the counter or the desk there. I don't think I grabbed it
8 and took it out of his hands with any force or any anger or
9 in any way upset. I think it was on the table, and I
10 picked it off the table, advised him this was a refusal,
11 and that was about it.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Okay. Do you know whether or not Officer
Richwine was preparing the Intoxilyzer for a test during
the implied consent and O'Connell discussion?
A I don't recall that.
Q Do we agree that this chair that Mr. Doyle
was sitting in was right next to the Intoxilyzer?
A
Yes, a couple feet probably-- well, a couple
feet.
Q Was Agent Richwine the person who ultimately
was responsible for the breathalyzer or no?
A He was seated in the position as generally
he would be the person administering it. He was seated at
the desk beside the Intoxilyzer, and then Mr. Doyle would
sit on the other side of the Intoxilyzer. So I'm assuming
46
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
.
.' ~
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1 that he was going to administer the test, but I don't know
2 that for a fact.
3
Q
You're also a test operator, if I understood
4 your direct?
A
Q
That's correct.
Are you qualified to run that particular
device?
A
No, not that model.
Q Did you take Mr. Doyle to the rest room that
evening?
A No.
Q You gave-- again, you gave testimony in a
preliminary hearing relevant to your O'Connell discussion
with Mr. Doyle, is that correct?
A
Yes.
Q Do you agree-- I'll give you an opportunity
to review your preliminary hearing testimony. Officer
Staley, I'm showing you an excerpt from a preliminary
hearing transcript at page 33, lines 3 through 10, and ask
if you could read that to yourself.
Have you had an opportunity to review that?
A Yes.
Q Would you agree that you don't recall
exactly what Mr. Doyle's words were regarding whether or
not to take the test?
47
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1
A
I recall him saying, no, and that was the
2 word that he used, no. And then there was-- in the same
3 breath, there was the additional sentence, which it was to
4 the effect of, I can't say it was word for word, but to the
5 effect of that having that headlight out didn't warrant
6 being arrested.
7
Q
Okay. But in your testimony previously,
8 didn't you testify his answer was, no, that he didn't
9 believe the light was out?
10
A
If that's what it says there.
11
Is that your testimony?
Q
12
A
Yeah.
13
Q
And do you agree at the previous hearing
14 that you indicate that he-- you thought he said, I don't
15 think the light being out was a reason to be arrested?
16
I'm sorry. Rephrase that-- could you ask
A
17 that again?
18
Do you agree you testified at the
Q
19 preliminary hearing that, quote, that he said in your
20 presence, quote, I don't think the light being out was a
21 reason to be arrested?
22
A
Yes.
23
Okay.
Q
24
MR. HERSHEY: I have no further questions.
25
THE COURT: Mr. Kabusk.
,
48
'11
,
,
'= '- .~'-'.
-1" '"-.',,11
o
o
1
2 BY MR. KABUSK:
3 Q Officer Staley, what was the time of the
4 initial stop?
5 A The initial stop was at approximately 1--
6 0128 hours.
7
8
9
10
11 custody.
12
13
REDIRECT EXAMINATION
Q
A
Q
A
Then what was the next time that you noted?
Would have been the time of 0141 hours.
And what was that time?
That was the time that Mr. Doyle was in
Q
A
Okay. What was the next noteworthy time?
The next noteworthy time would have been at
14 0149 hours when I began my transport of Mr. Doyle from
15 Poplar Avenue to the Booking Center.
16 Q And do you have noted when you arrived at
17 the Booking Center?
18
19
20
21
22
23
24
25
A
It's been documented that I arrived at
approximately 0157 hours.
Q Okay. And did you-- do you have noted the
time that-- of refusal?
A Yes, by looking at my personal watch that I
was wearing that particular night, I recall the time being
0222 hours.
Q
And previously, you stated 2:22 or 2:25.
49
iff
'~ "'-
''''-' ,,-,.',
":-lIlt~l#i,,'
o
o
1
2
3
4
5
6
7
Why did you say those two numbers?
A The Booking Center time is 2:25.
Q Okay. At the initial stop when Mr. Doyle
explained or said that he had Meniere's disease, did you
ask him what that meant?
A I asked him-- yes.
Q What did he respond?
8 A He shook his head back and forth consistent
9 with being, no. And he-- and that's-- he said something
10 about, but I don't remember what that was. It was a real
11 quick-- I believe he said-- I don't remember what he said.
12 Q Did he tell you that he had any physical or
13 medical limitations that affected or would affect his
14 ability to perform the field sobriety tests?
15 A No.
16 Q So he didn't tell you that he was-- he had a
17 condition which would have prevented him from taking the
18
19
20
21
22
23
test?
A
No.
Q And when you asked him to explain Meniere's
disease, he didn't explain that?
A No.
Q
And when you asked him to-- or gave him the
24 opportunity to put in the hearing aid, he didn't take you
25 up on that offer, did he?
50
"'
1
2
3
4
5
6
7
8
9
10
11
12
13
14
lS
16
17
18
19
20
21
22
." -r_ ~ -"
'",'''; . - l<' _C.'~~~.\,.'
o
o
A
No, he didn't.
Q Now earlier, you were asked about the
questions you had regarding the DL-26,. And he kept
on
having questions. Was it your impression that he was
confused over the meaning of the words or that he did not
hear those words?
A My impression was that he did not understand
the meaning of the words.
Q And in your experience dealing with alcohol
impaired people, is that unusual that an intoxicated person
wouldn't understand what you're telling them?
A That has happened before.
Q And then after spending approximately what,
20 minutes, 25 minutes going over the DL-26, he-- how did
he respond to you when you asked him to submit to the test?
A Again, it was clearly, no, followed up by
the statement that the headlight being out didn't warrant
him being arrested.
Q And this portion of time was not videotaped,
are you aware of that?
A
Q
I am.
And there's a videotape, very brief
23 videotape, are you aware of that?
24
2S
A
Q
Yes.
And was a Booking Agent Richwine present
51
,- ,
o
.,.
"V
1 during your conversation and request of Mr. Doyle to
2 suomi t ?
3
A
Yes.
4
MR. KABUSK: No further questions of this
5 witness.
6
THE COURT: Mr. Hershey.
7
MR. HERSHEY: Nothing further, Your Honor.
8
THE COURT: All right. You may step down.
9 Thank you. Mr. Officer Staley be excused?
10
MR. KABUSK: I'm going to need him here for
11 rebuttal, Your Honor.
12
THE COURT: We will adjourn at this point,
13 and Mr. Hershey--
14
MR. HERSHEY: I'm sorry. Is it possible
15 that we could do Agent Richwine?
16
THE COURT: I don't think so. I have an
17 appointment outside the office at five.
18
MR. HERSHEY: Very good. Very good.
19
THE COURT: We'll enter this order.
20 (Whereupon, the following Order of Court was
21 entered:)
22 ORDER OF COURT
23 AND NOW, this 21st day of March, 2002, upon
24 consideration of the appeal from license suspension filed
25 in the above-captioned matter, and following a second
52
"';'
.~ '~"~V
, -, -.."..; ,~~ - -',
'" ..'"
-;.,-b,;.-~;k~It"
o
o
1 period of hearing held on this date, and the hearing having
2 not yet been concluded, the record shall remain open, and a
3 further period of hearing is scheduled for Thursday, June
4 6, 2002, at 1:30 p.m., in Courtroom No.1, Cumberland
5 County Courthouse, Carlisle, Pennsylvania.
6 It is noted that, at the time of the second
7 adjournment on today's date, the Appellee/Respondent,
8 Commonwealth of Pennsylvania, Department of Transportation,
9 had completed presentation of the testimony of Officer
10 Brian Staley of the New Cumberland Borough Police
11 Department, and Defendant's counsel had completed the
12 cross-examination of Officer Staley.
13 It is further noted that at the time of the
14 second adjournment, Commonwealth's Exhibit 1 (DL-26 form)
15 had been identified and admitted. No further exhibits had
16 been identified or admitted. At the time of the second
17 adjournment, the Commonwealth was preparing to call Agent
18 Ralph Richwine as its second witness.
19 By the Court,
20 Isl J. Weslev Oler. Jr.
J.
21
22
23
THE COURT: Is that order satisfactory to
24 counsel?
25
MR. KABUSK: Yes.
53
,.,,",
,~,-~~ .'
, l""1i.. ~:;
o
o
1
2
3
4
5
6 2002, at 1:30 p.m. Court is adjourned.
7 (Whereupon, the proceeding adjourned at
8 4:25 p.m.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. HERSHEY: Yes, Your Honor.
THE COURT: Okay. Thank you.
MR. KABUSK: Could you repeat the date and
the time, please?
THE COURT: Sure, it's Thursday, June 6,
54
0
01
1>, 31:20
01-6027
'" 3:721:8
0121
'" " :25 " ,19
0128
''I 49:6
0141
''I 49:8
0149
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0157
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0222
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1
1
[12J 12:23_2418:9,16_17,1921:245:
6,849.553:4,14
10
14134:6,1031:1247:19
10th
[10] 4:1319::1-230:18,20-21,2431:4
32:1 39 22 40:8
11
[2] 9:523:13
12
(2] 23:13 34:&
141
[IJ 9:19
1547
[1] 3:22
16528999
[IJ 3:21
17th
[1] 23:11
18
[1] 9:2
1,28
1114:16
1,30
12153:454:6
1,41
[2] 22:15,22
1,49
(3) 22:11,13,23
1,57
[lJ 12:6
2
20
[519:514:2117:636:1251:14
2001
[SJ 3:20,23 4:13 23:11 30:21
2002
[5] 3:121:152:2353:454:6
20th
[1] 31: 20
21
{2] 3:121:1
21st
[2J 3:2052:23
25
[3] 14:21 36:12 51:14
26th
[2J 402,6
2,22
(2] 15:849:25
2,25
[4J 3:315:8492550:2
2,45
(1] 20:12
3
3
[lJ 47:19
30
[3] 9:619:10,18
300
[21 'L23 5,1
33
[1] 47:19
35
[2] 19-10,18
3731
[1] 13:14
3,12
\1121:3
3,44
[11 42:13
...-.
3.~ 4 5
137:12
4
4,05
[lJ 42:14
4.25
[lJ 54:8
4,30
142:17
5
50
[I] 27:5
5000
'1 19:6
6
~,
53:4 54:5
8
8/10
7{1 3:23
A
A
[154] 3:4,7,21,244:17,20,225:2,9,
13,256:57:12-13,158:4-5,11-12,16
9:9,1910:4,6,10-11,2111:12,14,22-
2312:1613:5,14-16,19-20,22,2514:
2,4,7,10,12,23-2415:4,1116:7,10,
2117:5,9-10,15,2118:12,1419:25
20:8,10,12 21:9 22:6,19 23:2,10 24:
8,14,23 25:13 26:3-4,9-10,13,18-19,
21 27:9-10,14-15,20-21,24 28:12 29:
8-9,13,17,25 31:16,18-19,22,25 32:
18 33:9,15 35:10 36:2-3,14-15,18-19
37:3,11,1338:639:7,1040:9,2041:
12-13,11 42:10-11,13 43:6,13,16,18
44:3,945:11,14 46:3,5,10,13,18 41:
2-3,12,1848:15,2050:10,1651:22,
2552:2553:2
A.m.
[1] 12:6
Ability
[2] 10:1050:14
Able
[1] 21:12
About
[22] 4:13,155:78:49:111:419:3
21:18 34:6 37:12 38:23 41:11-12,16,
18 42:1,17 44:12 45:12 46:11 50:10
51:2
Above
[3] 35:1944:1945:13
Above-captioned
[1] 52:25
Acceptance
[1] 10:5
Accurate
[1] 22:21
Acknowledged
[1] 33:12
Acknowledging
[2] 22:1645:20
Activated
[1] 38:7
Activates
[1] 5:12
Activities
[1] 4:18
Actually
[3] 12:1032:245:5
Addition
[1] 28:10
Additional
[2] 17:1048:3
Additionally
[1] 1:1
Adjourn
[2J 42:1752:12
Adjourned
[3] 21:954:6-7
Adjournment
[3J 53:7,14,17
Administer
[1] 47:1
Administering
[3J 19:632:2546:23
Administration
[4J 19:2325:3,1731:11
Admission
[3] 9:1818:8,16
Admitted
[4J 18:18,2053:15-16
Advantage
[1] 11:23
- L ~
Advised
(8) 12:1013:1235:8-941:244:19
45:13 46:10
Affect
[1] 50:13
Affected
[I] 50:13
Affidavit
[1] 22:21
Afforded
[I] 14:16
After
[19] 7:21,258:2111:15,2212:3,10
14:1515:617:6,1524:630:932:17-
18 33:19 39:7 42:11 51:13
Afternoon
[IJ 21:23
Again
{IS] 6:7,11 7:10 8:16 9:4,8 21:5 28:
2,5,10 39:20 45:9 47:12 48:17 51:16
Against
[:..14:..on
Agent
[15] 18:4,6-725:1034:2137:5,10
38:16,19-20,2246:2051:2552:1553:
"
Agents
[4] 15:133722,2538:3
Agree
[15] 14:626:827:19342435:5,20
41:2543:10-11,1546:1647.16,2348:
13,18
Aid
[7J 11:10 16:8,11-12 24:24 33:9 50:
"
Alcohol
[6] 9:1610:913:1314:1220:451:9
Alcoholic
{51 6'.1,77:1. 9:1l!. 20,2
Align
[1] 28:9
All
[13] 3:1810:2419:13 29:22 33:6 36:
14,16,1937:1039:842:944:1352:8
Alleged
[3J 4:1222:732:22
Allen
[I] 35:9
Allow
[2] 11:1116:12
Allowed
[1] 39:5
Almost
[IJ 9:7
Along
[2] 28:939:17
Aloud
[1] 13:6
Also
[10] 7:2419:72224. 26'24 27:8 39:
1141:1844:14,1847:3
Although
[1128:2
Am
[3] 13:1522:1151:21
Amendment
[2] 22:14,17
Amount
[1] 36:18
An
120} 4,:"210:1 :..7:9,H,,19 19 7227,
14,1823:1529:9,1938:25416422
47:16,18,2151:1052:16
And
[185] 4:19,215:3,20-:116:4-6,9,11,
15-18,207:8,10-14,17,20,238:3,6-7,
10,12,15,18,22,249:2,5-6,8,12,15,
18,24-2510:1,6,9,2511:5,7,10,18,
22,2412:11,1613:4-5,22-2314:8,17,
23,2515:12,14,16,2116:8,11,14,19,
2217:4,9,14,18-19,21,23 ll!.:1,6 19,
19,2420:621:12,14,1922:623:12
25:6,10-11,13,16-17,20,2426:1,3 27:
2,1829:8,10,1730:2431:3,532:1,
1433:11,16-17,2334:5,14,1935:9,
1536:4-5,13,1837:13,2539:2,640:
6,17,2541:6,2342:2,11,14,1643:2,
1144:11,14,1845:13-14,1646,5,8-9,
11,14,2447:1948:1-2,1349:9,16,20,
2550,8-9,20,2351,3,9,13,19,22,25
52:1,13,23,25 53:1-2,11,15 54:3
Anger
[1] 46:8
Another
[4.] 7:2435:1642:1143:10
Answer
[6] 15,8,20 17:14 42,8 44:6 48:8
Any
\18] :'.,14 10,11,:B 11:20 15.25 16::'.
21:24 31:10 :'.5:11 36:6 41:3,1:'. 43:
14 46:8-9 50:12
t,l,clilllill,!lirllllili:it.--ln' '~~ ~,
1<< ..,;.;..k''''m; ;i"'J~'
.'"
Anymore
[lJ 19:3
Anyone
[2] 14:3,24
Anything
[4] 5:611:4,815:22
Apart
[2] 7:238:4
Apparently
[1] 12:2
Appeal
(3) 3:8102252:24
Appear
[4] 15:17,2316'2422:13
Appeared
[1] 11: 17
Appears
[2] 31:1944:20
Appellant
[1] 36:18
Appellant/Petitioner
[2] 3:921:13
Appellee/Respondent
[2] 21:1653:7
Apply
(3) 13:23-2428'1
Appointment
[1] 52:17
Approach
[2] 23:644:23
Approximately
[15J 4'165:256:68:169:2,1912:6
14:2115:8 17:6 19:10 41:5 49:5,19
51:13
Are
[22] 4:910:2313:1220:321:11,19
23:24 26:15 27:5 30:12-13 39:21 40:
141.:2542,1645.4,1747:651-.20,23
Area
[2] 35:1637:17
Arms
[3] 8:9,18,25
Around
[1] 8:13
Arrest
[8] 9:2111.2_4,1:" 13,13 23:19 :'.C,I,4
33:21
Arrested
[9] 11:2215,10,1217:1122:2548:6,
15,2151:18
Arrests
[3] 9:13 19:10,14
Arrived
[5] 12:6,1834:1849:16,18
As
150] 3:21 4:3,23 6:2 7:6,8,16 8:8,
1712:1,2213:16,20-2114:1618'9
19:7-925:2,13,1626:9,16-17 27:24
28:3,10-1131:1432:1234:2435:1
36:1,6,1938:1040:18-2042:843:6
46:3,5,2253:18
Ask
[15J 11:13 12:3 15:2,20 17:23 31:9
37:1141:10,1842:2143:10 45:23 47:
1948:1650:5
Asked
[27] 5:20,226:8,14,19,2373,514:
5 17:7,12,19 24:16 32:16 35:10 39:7,
13,1640:13,1643:144:550.6,20,23
51:2,15
Asking
[4] 10:13,16 15:7 32:20
Aspects
[1] 42:1
Assuming
[1] 46:25
At
[82] 3:74:21,255:2,8-9,14,19,23,
25 6:8,11,15 7:4 9:18-19 11:6-7,25
12:6,1715:8,11,16,2116:517:11,13-
1418:12,2119:920:10,1221:722:
13,1724:19,2527:10,1629:1,1931:
2,5,833:2334:5,7,13,1636:2,1437:
1238:1740:2041:15,17,2542:13-14,
1744:13-14 46:23 47:19 48:13,18 49:
5,13,16.18,2250352:12,1753:4.6,
13,16546-7
Attacks
[1] 29:11
Attempt
[2] 7:2526:17
Attempted
[2] 28:142:7
Attorney
[2] 17:1942:2
Attorney.s
[3] 19:6.2025:7
Audio
[4] 30:2431'3,543 11
August
''9'
[11] 4:1:l19:12 30:18,20,23 31:4,20
32;1 39:;<1 40:8
Available
[2J 26:1'131:5
Avenue
[5] 4:19,245:324249:15
Aware
[11) 5:20-2110:2230:2331:2,432:
22 33: 8 ,13.14 51: 20, ~3
Away
[4] 6:1,J.8 9:2 36:7
B
B
[2] 13,515:1
Back
[17] 6:107:98:14,2411:8,2412:12
15:21 25:22 27:4 30:10 42,19,21,24
44:950:a
Balance
[2] 8:2529:12
Based
[5] 6,219,11-12,1517:11
Be
[39] 5:187:5,168:79,113,12,18
14,7-B,lQ 16,2417:5,1519:3 21,19
22:11,1324:726:4,2127:2028:12
29:11 31:19 32:18 33:3 34:25 35:10
36:8,23-24 37:25 42:17 44:7,20 46:
23 48:15,21 52:9
Became:
[2] 30:433:8
Because
[1] 27:14
Become:
[1] 32:22
Been
[211 4,3 6:22 7:3,21 18:9 20:2 25,3
28:5 31:14 35:21 37:2-3,21 44:19 45:
13 49:8,13,18 53:2,15-16
Beer
[2] 7:49:19
Before
(Ill 14,3,25 23:3,11,18 31:22 32,4
35,22 36:24 37 6 51:12
Began
[2) 8:13 49:14
Begin
(1] 8:2
Being
[23] 3:247:2515:10,1217:1126:10
35:3,2239,7,9,13,1640,741:1643:
6 48:6,15,20 49:23 50:9 51:17-18
Belief
[2J 28:1032:5
Believe
[25) 7'415:10-1116:1817:118:7
19:9 21:18 32:14 36:11 37:21 38:22-
2340:5,6,16 41:20,22,24 42:15 44:
11 46:6 48:9 50,11
Bent
[119,7
Beside
[3] 5:19 )4:19 46:24
Better
[1] 30,1
Between
[7] 7:9 8:16 9:5 28:6-7,12 31:25
Beverages
[5J 6:1,87:19:1820:2
Bit
[1) 16:10
Blank
[2) 44:2045:17
Block
[6) 4:23 ;;:18:23 9:5-6,9
Bloodshot
[2) 6:59117
Body
[5] 9:2 li:17 14:18 16:18,22
Booking
[28) 12,5,1715:13,1616:518:2,4
30:10,17,:1431:3,634:2,5,7,14,16,
2135:7,1;1,14 37:20,22 44:10 49:15,
1750:25:\.:25
Borough
[2] 4:10 ;;3:10
Both
[3J 10:5 H:5 40 24
Bottom
[2] 31:1941:15
Brandt
[4] 15:14 18,738:1,20
Breath
[7] 7:2 IJ:16 15:8 17:7-8 ]5:10 48:3
Breathalyzer
[1) 46:21
Brian
[4) 3:25,1:2,8 53:1Q
-
Brie
[2] 6:2351:22
Broke
(1) 7:23
Building
[1] 35:9
Bureau
[2] 3:621:7
But
[19] 5:96:12,188:312:116:10,21
23:24 28:10 35:4 38:23 40:8,18 42:
10 44:12 47:1 48:4,7 50:10
By
[34J 3:11,194:59:2111:113:114:
3,5-6,13 15:3 18:25 19:7,1121:17,
19,22 23:9 27:5 29:24 33:7 36:4,21
37:1539:1942:743:445:1,1046:2
49:2,2251:165]:19
c
C
(2) 13:541:22
Call
[2] 11:2353:17
Calls
[1\ 3:25
Came
[2] 5:98:18
Can
[8) 7:1619:2,2437:7,13 44;1,22-23
Canlt
[2] 36;2548:4
Capabi~ity
[3) 30:2531:4-5
Car
[3) 4:207:911:7
Card
[6] 6;16-18,2024;7
Carlisle
[1) 53:5
Case
[17) ]:5,821:5,1:6,16 22:4,8,i9 26;
16 27:25 30:2,5 31,14 35,15 37:1 40:
142;11
Cases
[2] 10:17,23
Caution
[1] 10:25
Center
(23) 12:6,1715;1516:518:230:10,
17,2431:3,634;2,5,7,14,16]57,12,
14 37:20 44:10 49:15,17 50:2
Certain
[2] 38:2344:12
Certainly
[2) 23:844:25
Certificate
[2) 19:5,19
Certified
II) 19:7
Chair
[2] 37:1746:16
Chance
[2) 31:1639:7
Change
ll) 22:17
Charging
(1) 22:7
Charles
(1123:12
Checkpoints
(1) 19:8
Chemical
[10] .3:2313:16,18,2414:3,5,9,25
]1:13 32:23
Chose
[1] 11: 12
Civil
[3] 3;713:2521:8
Class
[1] 20:5
Classroom
[1] 20:1
Cleared
[1) 44:10
Clearly
[1) 51:16
Clement
[J) 2.3:4,12,19
Client
[1) 41:14
Clues
(8] 6,217:13,15,178:199'4,10
Code
(3) 3,235:413:15
Cognitive
,1"
[2] 6:229:15
Combination
(1116:21
Come
[2] 37:642:19
Coming
fl) 5:25
Commands
[1] 11:5
Commonly
[1) 13:21
Commonwealth
[6J 3;5,1121;6,1553:8,11
Commonwealthls
[9] 12:23-2418:9,17,1936:245:5,8
53:14
Communication
[1] 11: 16
Community
al10:6
Complaint
[3J 22:6,10,22
Complete
[1] 33:20
Completed
(2) 53:9,11
Computer
[2] 40:6,9
Concede
[l) 22:18
Concluded
[1] 53:2
Condition
[2) 29:150:17
Conditions
[5) 11,2121:1126227:2131:10
Conduct
[5] 9:2314:717:1537:13 42,10
Conducted
ll) 25:4
Conducting
(1] 4,18
Conference
[2] 37:13 42:10
Confused
[1) 51:5
Conjunction
[1) 22:8
Consent
[11] 12:1913:2514:1034:2035:6
]7:18 38:10,21 39:1 41.3 46:14
Consider
[1] 22:1
Considerable
[1) 36:18
Consideration
[1) 52:24
Considerations
[1] 36:17
Considered
[1] 26:9
Consistent
[2) 16:2250:8
Constitutional
[1) 13,20
Contemporaneously
(2) 43:7,16
Context
[I] 10:21
Continue
[1] 21:12
Continued
[2] 4:238:15
Continuing
(1] 21:9
Control
[1] 9:14
Controlled
[2] 13:14 14:12
Conversation
[4] 5:2415:1943:752:1
Conversations
[1] 11:5
Copy
[4] 18:14 40.9 44:14 45:2
Corner
[2] 31:1939:22
Correct
[40] 18:321:2522:4,8,1223:2324:
2325:8,1126:5,2528:1929:1-2,4
30:2,5,1831:20 ]2:2 33:9,0.3-14,21-
22,2434:239:2240:2,2141:1,4,7,
11 43:8 44:16,21 45:17 47:S,14
Corrected
[1) 45:7
Correctly
:MiJllllilllllil!i:i~" -" ...-..wJ"
,-, ~" ~"'M: iVor"
[1] 40:11
Correlating
(1110,7
Correlation
[1) 10:9
Could
[16) 6:1,6-77:113:6 18:12 23:1]
24:22 26:0.8 33:16 42:17,21 47:20 48:
1652:1554:]
Counsel
[6] 3:10,125:1921:1453:11,24
Counted
[1) 8:7
Counter
[1] 46:7
County
[4] 19:5,2025753:5
Couple
[4) 8:1211:13 46:18
Course
[5] 4:1111:219:2520,825:14,16
Court
[58) 3:4,184:157:1610:11,17,20,
24 13:8,1118:1Q,17,23,25 20:10 21:
4-581423:829:15,19,2232:9,19,
24 ;3:3,6 35:25 36:10,16 ]7:8,10 39:
15 42:5,9,15,21,23-24 43:1 44:25 45:
5,23 46:1 48:25 52,6,8,12,16,19-20,
2253:19,2354:2,5-6
Courthouse
[1] 53:5
Courtroom
[2] 21:253:4
Criminal
[8] 13:21,23 14:1,11 22:6,10,22 41'
"
Cross
[4] 21:2132:1237:753:12
Cross-examination
[2) ]7:753:12
Cross-examined
[1] 21:19
Cruiser
[114,17
Cuffs
[1] 34:21
Cumberland
[6] 4:10 19;5,20 25:7 5]:4,10
Curb
[2] 26:2228:8
Curbs
[1) 26:17
Custody
[2J 15:13 49:11
D
Date
[10] 4:1521:8,10,1232:145:14,16
53:1,754:3
Dated
[5) 3:19 23:11 31:20 39:21 40:1
David
[2] ]:1021.14
Day
[1] 52:23
Dealing
[1] 51:9
December
[1] 23:11
Decided
[1] 43:12
Decision
[11 9:19
Deemed
(3) 14:717,1532,18
Defendant
\5] 6:2,10,247:71.213:21.
Defendant's
[3] 5:87:2153:11
Defense
[1] 5:19
Delay
[2) 36:4,15
Delayed
[1) 36:6
Delaying
[lJ 36:9
Demonstrated
(4) 7:11,148:628:3
Demonstrating
(l) 40:20
Departed
[1) 1514
Department
18) ]: 6 , 16, 20, 2 5 21: 6, 15 5.3 ~,_
Designated
[1] 26:3
Desk
[2J 46:7,24
Detail
[2] 19:2440:18
Detect
[1] 15:21
Detecting
[1] 19:2
Detection
[IJ 9:12
Determine
[:2J 10:111:16
Determ.ined
[3] 12: 4 ~9, 9 33: 19
Determining
[lJ 36:8
Device
[1] 47:7
Did
[72) 3:125:6,246:12,18 8:2,8 9,23
10:111:3,7,14-15,20 lS,16,23-25 16:
3,6,11,13,16,2417,2,4,2318,1119'
14 22:13-).4,24 23,15,18,20 24;14,17,
19 27:25 j9,3 31:9,12,22 32:21 34:4,
13,21 35:).1 36:17 38:6 39:3,12 40,
11 42, 5 4~: 1 44: II, 17 45: 19,23 46,4
47,9 49:20 50:1,4,7,12,25 51:5,7,14
Didn1t
[25] 11:1015:2,4,9,11,2116:2017:
10,14,2221:23282135:1537:541:
18 44,3 48:5,8 50:16,21,24 51:1,17
Different
[1] 41:9
Differently
[1] 16:10
Difficulty
[3] 25:2327,632:13
Direct
[4] 4:436:240:1247:4
Directly
[7] 3:13 7'22 8,1,17 26,19 28;4,11
Disabilities
[2] 16;1,4
Discussing
[2] 38:10,21
Discussion
[4J 35:6 38:15 46:14 47.13
Disease
[14] 12:1-2,13 16:928:18,20,22-23
29:6 32.6,23 50 4,21
Disorder
[1] 29:9
Disorders
[1] 32:13
Dispatch
[1] 44:11
Distance
[1] 6,6
District
[6] 19:6,2023:3,12,1825,7
Divorce
[1] 3:2
DL-26
[22] 12.1913:314:2015:1,16,2317:
18 18:14 31:14 35,16,18 36:5,8,13
3'3:241:71.2,8 44,HI 4S,12 51,3,14
53:14
Do
[35] 10;11,17,2011,913:2314:418:
419:1122:1823,224;631;1234:24
35,538:3,1639'2340,341,2542:16
43: 11, 15, 2~ 25 45: 14-15 46,12,16 47:
16 4S:13.18 49,16,20 52:15
Doctor
[1] 29:14
Documented
[1] 49,18
Does
[6] 25,21_22 27:13 38 25 39:11 45:19
Donlt
[30] 3;1410:1916:2024:9-10,1225:
1 26:7 34:9,23 35:3 38,18 40:17 41:
13 43:9,22 45,24-25 46:6-7,15 47:1,
23 48:14,20 50:10-11 52:16
Done
DJ 33:1531:243,1.3
Door
[1] 7:8
DOT
[4] 10:2132:2,544:18
DOT's
[2J 44: 13 ~S: 2
Down
[4] 9:3,8451252:8
Doyle
(66] 3'5,9,215,186:3,158:2,219,
6,2011,9,1712,1813'314:15-1615'
1,11 21,6 22,25 24:13,24 27:25 28:3,
18 30,10 31:10 32:1,5,17,23 33:9,13,
16,193 ,16,22,24-2535:3,2136,
5,23 37,lb 38:7,11,16 39:1,12 40 13
41;3,643:6,12,1745:1946:16,2447:
9,14 49:10,14 50:3 52:1
Doylels
[7] 21:2422,1923,25 :24:7 31:2 46:
447:24
Drinki.ng
[3] 7:3 9:18 20:2
Driver
1213:721,7
Driverls
[5] 3:214:225:166,9,12
Driving
[7] 3:2413,13 14:1119:2,14 21:26
22:7
Dry
[IJ 26'4
Due
[1] 10:8
Dill
(10) 4,13 9,12-13,20 12:1119:8,10
27:11,14,16
Duly
[1] 4:3
During
{21] 4:11 7,19 8
12:814:2215:15
33:11 35:8 38:15
13 52:1
,229:4,8
16:2531,
40,12,15
11:2,12
832;17
41:9 46,
Duties
[1] 4:11
Duty
{2J 13,1618,5
E
E
{I] 3:10
Each
[3] 8:1716,234021
Ear
[4] 25:2327:529932:13
Earlier
(6] 7:417:1921:823:2225251:2
Edge
[IJ 28:1
Effect
\3J 29:1748:4-5
Eight
[2J 7:13 19:14
Either
[7] 24:1028:2531:832:1735:638:
19-20
Else
(2J 14:3,25
Emergency
[1) 5:13
Emitting
[2] 6:2,8
Employed
[1] 4;9
En
[2] 19:835:12
Encounter
{I] 16:25
End
0] 8:9
Ended
{I] 36:19
Engage
(1] 15:19
Engaged
[lJ 6:23
Enough
[lJ 24,21
En ter
{I] 52:19
Entered
[4] 6:1137:2041:1652:21
Entire
[2] 36:338:18
Entitled
[1] 30:1
Episodes
[1] 29: 11
Equipment
[2] 38:4,7
Err
[1] 10,24
Erratic
[2] 21:2522:1
Error
[1] 22;18
Escorted
{I] 37:16
Esquire
[4] 3:10,1221:14,17
Essence
!I] 28:14
Essentially
[2J 8:528,16
Establish
{l] 36:4
Establishing
[1] 10:4
Estimate
[2] 8:415:6
Even
[1] 26:18
Evening
(2] 28:1747,10
Event
[3] 22:19282543:17
Ever
(1] 17:2
Evidence
[5J 3:13 14:10 18:20 21:14 41;16
Exact
(I] 43:5
Exactly
[3J 16:2136:447:24
Exam
[1] 40:12
Examination
[6J 4:420:421:2137:749:153:12
Example
[2] 26: 22~23
Excerpt
[1] 47:18
Excuse
[1] 16,10
Excused
[1] 52:9
Exhibit
[11] 12:2.'1-2418:9,16-17,1944:14
45:3,6,853:14
Exhibits
[1] 53:15
Exit
[1] 7:8
Exited
[1) 7:7
Experience
[1] 51:9
Experiences
[1] 9:13
Explain
[3] 40:3 50:20-21
Explained
[3] 5:197:1150:4
Explanation
[1] 35:11
Expressed
[1] 17:9
Extended
[2] 8:22,24
Extension
(lJ 9:7
Eye
[2J 10:8-9
Eyes
[2] 6:59:17
F
Fact
[4] 9:1510,1.5171247:2
Failed
[2] 10:1633:19
Fair
[1] 29:8
Familiar
\1J 28:25
Far
[3] 8:17242126:9
Feel
{I] 19:17
Feet
\6\ 6:1.,77,238,446,:1.1>-19
Fender
[1] 8:14
Few
[1] 42:11
Field
\231 7:6,11 9,22 11.,9,12 1.9,23 25,4
26:2527:16,2430:7,11,13,1531:9
32:14,25 33:20 40:12,18 43:19 44:3
50:14
File
[1] 30:5
Filed
\1152:24
.,dli!t/!I'_"".,.~_
-,<<...'
-~',
~.k !!IIiJ!J-.'i_I,,"ii,
First
[6] 8:823.11,2439:2141:2
Five
[I] 52:17
Folder
[1] 24:8
Follow-up
[1] 46:3
Followed
[2] 35:451:16
Following
[2] 52,20,25
Follows
[1] 4:3
Foot
!I7] 6:257;228:1,4-5,10-13,169:3,
826:1928:4,11
For
[53] 3:4,244:75:3,20,236:14,199,
2010:1812;11,2513:8,13,1914:8,
11,19-2017:1918:8,2220:1-224:16
26:2,22-23 27:15,24-25 29 11,25 32,
1133:1234:13 37,11-12,17 38:4 39:
5 40:9,23 41:19 42:2,11 46:13,21 47,
:< 48:4 52:10 53:3
Force
[lJ 46:8
Form
{2D] 12,18,2013:315:131;13,2232:
2,435:16,1836:839:441:7,10,21
42:144:1645:1246:453:14
Forth
[2] 8:2450:8
Found
[lJ 12:16
Foundation
[I] 10:4
Four
[6] 7:15 9:10 13:6 15:6 17:13 39 25
Fourth
[6] 4:195:323:2233:1634:5,13
Frame
(2J 15:917:12
Friend
[1] 12:16
From
[23] 4:195:256:2,6,8,259:1-2,6
19:5,19 24:22 34:4,13 37:19-20 44,
10,14,1847:1849:1460:1752:24
Front
[16] 6:37228:1,1711:714:17-18
20:622:2224:14,18,2126:1928:4,
1141:21
FST
[lJ 32:11
Full
[1] 4:18
Fumbling
[1] 6:17
Further
[lQllO:91.8:2136,1137:05 48:2.4 52,'
4,753:3,13,15
G
Gave
[5] 39:141:647:1250,23
Gaze
[2] 10:8-9
General
[2] 5:510:5
Generally
[4] 5:1235:436.2546:22
Gentlemen
[1] 38:20 I
George
[3] 3:1119:1221:17
Get
1<1 34:4,13 35: n 42: "
Give
1<1 , 12,20 " :14 47: "
Given
I" 25:6 29: " " :20
Giving
I" 8:21 ,", "
Glassy
[1] 9:17
Go
[2] 51332;15
Going
[11] 16: 7 ,16 26: 15 29: 1 B 3" ~ 1 ~
1343,1841:151,1462:10
Good
[3] 21:2352:18
Got
[3] 893514 4D'18
Grabbed
[I] 46:7
Gradual
[1) 29,10
Great
[1] 40:18
Grounds
[2J 10:1532:15
Guide
HI2.1:24
Guidelines
[lJ 42:8
H
Had
[721 4: 12,18, 22 ~: 20,23 6: 15 7: 3-4,
216:18,209:11,1.611:6,22,24-2512,
11-12 14: 24 15: 1~2 16: 7-8 17,7,9,12,
1819'1,13,17,2.221:822:2,1024:14
25:328:18,2030,17,24 31:3,10,16
32:5-6,23 34:25 ~5:15 36:18,23 38,
15,25 39:3 40:16 41:14 42:1 43:1-2,
13 44:5 47:21 50:4.12,16 51:3 53:9,
11,15
Halfway
[1] 45:12
Hand
[3] 6:187:88:14
Handcuffed
[2] 11:2412:11
Handcuffs
[6) 33:2334:8,17,1935:2,15
Handed
[2J 6:12,16
Handing
[2] 23'1045:2
Hands
[3] 14:17464,8
Happened
[6J 8:2012:4,1414:1437:151:12
Happens
[lJ 36:25
Hard
{I] 26:4
Has
[4] 11:2127:1929:16 51:12
Have
[48] 3:144:126:2210:3,11,1711:
10 12.22 13:20 14:2,4 15:10 16:15,
23 20:2 23:15 24:14 25:23 26:13 27:
6 28:3-5 29,11 32,13 33:16 35:15,21
37:2,7,2136:639:2340:7,2442:18
43:16,23 45:12 47:21 46:24 49:6,13,
16,2050:1752:16
Having
[10] 4:39:1315:1117:1035:139:7
41:21 46:5 51.4 53:1
He
[171] 5:14,20-246,4,11,16,20,24-25
7,3-7,21,246:2,8-9,11,18,22-259:3,
8 10:16 11:4,10,12-13,16,20-21,25
12:1,6,10,1214:17-18,22-2415:1-4,
7,9, 11, 16~20, 23-25 16: 3,6- 8,16,18-
21,2417:2,4,8,14-15,19,21-2324:14,
16-17,19,22,2428:5,11-12,18,2031:
10 32:5 33:10 34:18 35:10 36:6-7,9,
14,17,2438:13,17-1839:2-3,5,10,12,
1840:1641:10,1842:1,1843:2,17
44:846:22-2347:148:2,8,14,1950:
4,7-9,11-12,16,21,24-2551:1,3-5,7,
14-15
Kels
[1] 29:13
Head
[JJ 11:1816:2050:8
Headed
[lJ 6:25
Headlight
[8J 4:2315:1217:1024:14-15,2048:
5 51:17
Hear
[3J 28:2140:245:1-:6
Hearing
[25] 3:2,410:18,:2211:1016:8,11-
1221:922:14,17 :23:3,1124:24 29:
10 33:9 47:13,17,19 48:13,19 50:24
53:1,3
Heel
['I} 7:228:326:4,5
Heel-to-toe
[5] 7:226:3,726:4-5
Held
[1) 53:1
Help
[1] 44:2
Here
[4] 5:186:2317:1252:10
Hershey
[47J 3:10,14 10:3,20-2118:10-11,14-
15 21.14 19 22 23:6,9 29:15-16,21,
24 32:9-io i1 33-1,5,7 35:25 36:1,
.21 37;5,15'39:16;19 42:19-20 43:3-4
44:23 45:1,7,10 41:2 48:24 52:6-7,
13-14,1654:1
HGN
[4J 9:2510:2,15-16
-
Him
[61J 5:20,22-236'8,257:3,5,106:6
9:911:4,6,11,22,2412:4-5,10_12,17,
20 13:5-6 14:17,24 15:3 16:12,25 17:
7,13,17-1818:124:14,16,25.28:21
33:.21,2335:8,1039:4-541:15,17,23
43:6 45:23 46:10 48:1 50:5-6,17,20,
21 51,15,18 52,10
Himself
[2] 8:2524:17
His
[66} 3:10,22-236:4,9,127:2,8-9,21_
23 6:1,4-5,8-12,14-15,16,21-25 9:2-
3,6-6,1611:10,17-1812:15-1614:16-
1615:816:14,18,20..2.2 17:8,15,20
21:1424:4,15,2436,1742:2,646:8
48:650:8,13
Hold
[1] 9,7
Home
[lJ 12,16
Honor
[19J 3:1710:4,13,2313'1019:423:
7 29:13 32:7 33:2 35:23 36,11 37:9
42:7,20 44:24 52,7,11 54:1
Hours
[8J 9:1920,941:349:6,8,14,19,24
How
[17} 5:118:6,189:2211:415:1616:
2117:419:1720:833:334.4,1236:
440:1751:14
However
[2J 21:1126,14
I
I
[203J 3:14 4:17-16,20,23 5:2,17,19-
20.22-23 6:1,3-4,6-6,14-15,19,21.23
7:1,3-5,7,10,14,20,248:3,6,6.16,22
9:4,9,15.1910:1911:7,10,13,22,24-
2512:5,10-11,18,.2213:3,1514:15,
17,23,2515:2,6,13-14,18,20-2116:9,
13,18.2017:1,7,12,14,2518:7-8,12-
13,15.2319,9,13-14,18,2221:1822:
123:6,20-21.2424:9,12,1625:126:
1.3,20-21 30:20,22 31:12,18 34:9.23
35:3,6-936:1,5,11,16,2537:5-6,12,
2138:12,18,22-23 39:4,9 40:5-8,11.
16-1741:13,15,20-2342:7,10,15,21
43:1,9,19.22,2444:1,3,9,11,14,17-
18,22-2345:5,7,12,15,2546:6-7,9,
1547:1,348:1.4,14,20,2449:14,18,
22-23 50:6.10-11 51:21 52:16
Illl
[8J 10:2412:313:1015:1033:536:
20 37:10 47:16
I'm
[29J 6:1010:13.15,2219:7,1623:10,
1229:1831:1236:4.1438:2341:20
42,9 43:9,14,19 44,12-13,22 45:2,6
46:2547,1846:165.2:10,14
Ilve
[7] 9:11194,8.23:1738:2539:20
44:19
Ideally
[3J 26:1327:20-21
Identification
[lJ 12:25
Identified
[3J 5:1853,15-16
If
[27} 5:20,227:3,510:1613:1714:
16 15:3.7 16:12,23 23:21 24:16 26:
1928:.2-3,736:337:240:442:1743:
19 45:6 47:3,20 46:10
III
[4J 3:5,9,2121:6
Imaginary
U\ 28:14
Impaired
[lJ 51:10
Impairment
[4J 6:239:14-1510:8
Implied
[11J 1.2:19 13:25 14:10 34:20 35:6
37:16 38:10,21 39:1 41:3 46:14
Implying
[lJ 36:14
Impression
[2\ 51:4,7
In
[120} 3:54:16-17,256:23,257:15,
1722256:1,16-17,2510:5,14,2111:
4,io,i2,14,16,22 14:10,17-16,20 15:
9,1916:12.1617:1719:1,8,21-2220:
1_2,5_621:5,13,16.2422:3,8,10,17_
19 21 23:2 24:21 25:3,20-21 26:16,
19:2427:2.9,13,2526:4,10-11.14,25
29:1730.1,5,731:14 32:2 33:15,23
34:6.12,1736:8,17,1937:1,638:17,
20 39:22 40:1,18.23-24 41:17,21-22
42:10,1843:16,1944:3.1246:9.17,
2247'1248:2,7.1949:1050:2451:9
52:2553:4
Inches
[lJ 9:2
Incident
'"
-
[11] 4:12,15 23:3 26E;~:1,3 3.2,1,
17-16 38:24 39:11 ~
Include
[2J 9:14,16
Included
[1] 7:12
Includes
[2] 20:429:9
InclUding
[2} 13:2240,1
Indicate
[7J 3:9 21:4,13 27:14 36:25 46:5 46:
H
Indicated
[23} 5:21-22,247:4,611:10,2512:
12 14:22 15:2 16:7 22:2,11 24:13,17
25;.2 28:16,20 32:12 33:10 39:12 41:
6 43:2
Indicates
[4} 27'432:12391143:17
Indicating
[lJ 30:12
Individual
[lJ 41:11
Individuals
\2125'22
Influence
[6J 13:13 14:1119:2,14 20,3 22:8
Inform
[I} 13:17
Information
[lJ 14:19
Initial
[6] 8:2311:344:1149:4-550:3
Initially
[2] 5:2511:6
Initiated
!1\ 5:2
Inner
[2J 29:932:13
Inside
[I} 24:7
Instance
[1\ 26:16
Instructed
[]J 7:21,256:6
Instruction
[5] 7:1919:520:125:14,16
Instructions
[3] 6:2111:1940:19
Instructors
[2\ 20:725:10
Insurance
[6J 6:9,13,15-17,20
Interaction
[2J 11:315:19
Interfere
[lJ 31: 11
Interpreted
[I} 43:6
Interpreting
[I} 26:21
Interrupt
[1\ 42:10
Intersection
[8J 4'21,245:1,3,10,1434:5,13
Into
[9J 5:114:1018:2026:1532:435:
16 36:7 40:18 41,16
Intoxicated
[lJ 51:10
Intoxilyzer
[10] 19:7 34:19 35:19,22 36:24 38,8
46:13,17,24-25
Introduced
[1] 14:10
Investigate
[I} 4:12
Investigating
[I} 29:4
Investigation
[1] 9:12
Investigations
[I] 27:16
Involves
[lJ 19:25
Is
[87J 3:4,7,10-11,165:1112:2013:
16,25 17,23 16:17 19:25 20:8 21:5,
13,16,2522:4,8,11,2123.17,2324'
2325:7.1126:5,7,.2527:9,1528:8,
14,1829,1,4,6.2230:2,5,1831:20
32:2,10,14,19,2133:9.13,21.2434:2
35:43603,6,2239:2240:2,5,6,2141:
4.7,1143:8,1544:7,15,2045:14,17
47:14 46:11 50:2 51:10 52:14 53:3,6.
13,2354:6
Isnlt
~ ',1 "," ,,~
i...,;."'-:lk.lit.iil "'"
[4] 27:3,831:934:25
Issue
[2] 10:726:12
It
[92J 4,16 5:21 6:16,20 7:8 8:6 9:7
11:11,1512:1,6,1013:1614:16_16
15'18.20-21 16,9-1Q,16-21 17,5 13:n,
1220:4,822:13,2323:17,2024:10,
22-23 27:3,6 28:10,21,23 29:8 30:7
31:9,2332:534:4,10,13.2536'19,22
37:2 39:5,7,11 40:9,16,18 42:17 43:
1044:2-3,1246:6-11,2346:3-4,10
50:1051:4,1652.1453:6,13
It's
[11\ 12:2 22:22 29:9 32:10 36:14 41:
21-23 45:5 49:16 54:5
Items
\1) 13:4
Its
[I} 53:18
Itself
[2) 11:1922:22
J
J
[2J 53:20
James
[5J 3:5,9,205:1621:5
Jeffrey
[1] 25:11
Jr
[lJ 53:20
Judge
[3] 32:1036:13"7,5
June
\2153,354:5
Just
[8J 4:1610:13,16 12:3 18:12,23 35:
1237:3
Justice
[3} 23:4,12,19
K
Kabusk
[2913:11,16,111-1-94:59'2110:11,
13,1911:112:2213:114:13 16:8,13,
21 21:17 32:7 35:23 36:10-11 37:8-9
48:25 49:2 52:4,10 53:25 54:3
Kept
[lJ 51:3
Know
[$I! 16:4 25:1 28:21 36:3,16,16 40,
1746:1247:1
Known
[1] 13,21
L
Lack
[1\ 29:25
Landmark
[3J 26:2127:2526:8
Landmarks
[2J 26:1727:23
Lang
[5] 15:14 18:6 34:21 37:25 38:16
Language
[3] 11:1716:19,22
Lapse
[I} 31:25
Large
[1] 6:12
Last
[51 34,g 4:"'2:> 42:22.25 4<!.:6
Lasted
[2\ 14:19-20
Later
13J 5<1816:830:9
Law
{4J 12:1913:2514:1034:20
Lawyer
[8) 13:22 14:2,23-24 15:5 17:21 39:
1041:13
Laying
OJ 46:6
Lead
[2J 8:5,10
Lean
[1} 24:19
Least
[6} 9,1617,13 36-2 40:20 42;1 44,14
Left
[3} 7:228:1,10
Left-hand
[1] 31:19
LEFTl
[lJ 29:13
Leg
[7J 8:21_22,249:6,825:23274
Less
[1] 34:10
Let
[4] 3:821.4,1243:10
Letter
[2] 15:14122
Letters
[IJ 13:5
Level
[2] 9:126:4
License
[6] 3:8,216:9,:!-2 10:22 52,24
Licensing
[2] 3:721:7
Lifted
[1] 8:12
Light
[3] 48:9,15,20
Lighting
[1] 5:5
Lights
[1] 5:13
Like
[2] Hi:$I 17:21
Limitations
[1] 50:13
Line
[21J 8:7,1723:1326:3,9-10,13-14,
19 27:20,22 28:6,12 33:12 35:24 39:
18 41:15,22-23 45:14,16
Lines
[2] 26:1547:19
Little
[1] 16:10
Lived
[1] 27:15
Located
[1] 37:17
Long
[5] 20:8 28:11 34:4,10,12
Look
Ill] 5:231511,21.1.8:1.220.1-224:
16,19
Looking
[2] 44:13 49,22
Loss
[1] 29:10
Louder
[1] 11:14
Lower
[I} 35:9
M
M
[1] 3:20
Made
[8] 9:13,1922:16,18 39:9,"L8 43:6,16
Maintained
[1130:15
Make
[3] 3: 12 22: 14 3~: 6
Making
[1] 41: 12
Manner
[1] 40:24
Manning
[1] 38:4
Manual
[6] 25:13,2126:;! 27:3,9,14
Many
(2] 9:2219:17
March
[3] 3:121:152;!3
Mark
[1] 18: 11
Marked
[5] 4: 17 12: 22, 2~ 18: 9 31: 14
Master's
[1] 3:2
Matter
[2] 37:352:25
Maximum
(2] 7:159:9
May
151 14: 10 23: 6 2~: 11 32: 13 52: 8
Maybe
[2] 6:115:6
McLaughlin
[1) 25:10
Me
(13] 6:12,16,18,;!0 11:13 15:10 17:
14 33:10 40:3,16 41:21 43:10
Mean
[4] 19,1128:15 ='0:20 45:19
Meanino
~
[2] 51:'
Meant
[1] 50:5
Measure
[1] 8:3
Medical
[3] 16:1,350:13
Memorialization
[1] 44:7
Meniere'S
[9] 12:228:18,2129:632,6,14,23
50:4,20
Mentioned
[IJ 19:1
Middle
[2] 25:2327:5
Might
[3] 6:22 18:24 31:10
Mind
[1] 36:17
Minutes
(11114:20-2117:634:6,1136:13 37:
3,13 ]9,6 51:14
Miranda
[1] 13:21
Missing
(IJ 8:7
Misspoke
[1] 34:9
Mistaken
[1] 45:6
Misunderstand
[1] 19,15
Model
[IJ 47:8
Moment
(2] 37:1143:12
Moments
[1] 42: 11
More
[5] 15:2125:2026:127:2,6
Morning
(3] 4:179:2012:7
Motor
[1] 10:10
Motorist
[2J 44:2045:13
Move
[2] 12:2218:8
Moved
[8J 6:2,9-107:911:8,1824:17,21
Mr
[141] 3:14,16,18-194:56:3,158:2,
219:6,20-2110:3,11,13,19-2111:1,
9,1712:18,2213:1,314:13,15-1615:
7,1618:8,10-11,13,15,2121:19,22,
2422:19,2523:6,9,2524:7,13,2427:
25 28:3,17 29:15-16,21,24 30:9 31:2,
10 32:1,5,7,9-10,16,21,23 33:1,5,7-
8,13,16,1934:1,7,16,22,24-2535:3,
21,23,2536:1,5,10-11,21,2337:5,8-
9,15-1638:7,11,15-1639:1,16,1940:
13 41:3,6 42:19-20 43:3-5,12,17 44:
2345:1,7,10,1946:2,4,16,2447:9,
14,2448:24-2549:2,10,1450:352:1,
4,6-7,9-10,13-14,1853:2554:1,3
Much
[2] 36:540:17
Muscle
[1] 9:14
My
[24] 6:217,109:1211:2412:1213:
16 15:11 22,13 23:1 28:10 30:11 38:
2240:742:8,2243:19'44:3,11,1445:
249:14,2251:7
Myers
[3] 12,116:928:23
Myself
[2] 37:2140:10
N
Name
[2] 4:6-7
Narrative
[1] 40:1
Need
[6] 16:2027:1537:1242:10,1652:10
New
[2] 4:1053:10
Next
[7] 11:1935:2236:2446:1749:7,12-
U
Nice
[1] 42:17
Night
[1] 49:23
Nine
[4] 8:8-9,13,15
No
[58] 3,710,1912:23 ,2415,9
16:2,15,17,19-20,221 ,8-9,1618:
9,15,21 21:2,7 22:1 24:9 26:6,15 29:
2130:833:12,1835:5,13,1736:14,
1937:938:5,943:11,1544:7,15,17
46:21 .7:8,11 48:1-2,8,24 50:9,15,
19,2251:1,1652:453:4,15
Non. slippery
[1] 26:5
Nor
[1] 14:4
Normal
[3] 8,515:18
Not
[53] 5:9,216:12,188:3,1710:15,22
11:7,1213:24-2516:519:1622:123:
1 24:11,24 26:6-7 29,13 31:9,12 32:
24 36:3,9,14 37:2 38:18,23 39:3,12,
15 40:6 41:19 42:2 43:14,18-20 44:
12,1745:6,1946:1247:8,2551:5,7,
1953:2
Notary
[2] 31:19,22
Notation
[1] 43:15
Note
[4J 27:1031:1844:14,18
Noted
[6J 7:24 49:7,16,20 53:6,13
Notes
[6] 27:1630:11,13,1543:1944:3
Noteworthy
[2] 49,12-13
Nothing
(1] 52:7
Notice
[6] 3:19 5:6 11:3,7 15:25 31:13
Noticed
[10] 4:206:34,157:7,10,208:8,22
9:4
Notified
[1] 3:20
Notifying
[3] 32:22,2433:1
Now
[11] 3:2513:13 15:15 17:17 22:2 23:
21 32:4,20 41,21 51:2 52 23
Number
[1] 3:21
Numbered
[1] 13:4
Numbers
[1] 50:1
Nystagmus
[2] 10:8-9
o
O'Connell
[4] 35:641:1146:1447:13
Oath
[2] 21:2042:16
Object
[1] 10:3
Objection
[9) 10:12,2518:1529:13,19,2232:7
35:2337,9
Observations
[2] 21:2427:10
Observe
[1] 21:24
Observed
[1] 23:25
Observing
[1] 24:7
Occasion
[1] 4:12
Occurred
[1] 37:23
Odor
[2] 6:77:1
Of
[208] 3:5_6,22_244:11_13,21,235:1,
3-4,8,14,16_17,20_216:3_4,6_7,227:
1,9,13,15,20,22-23 8:1,4,9,11,14,17
9:9,16-17 10:5-6,8-10,14-15,18,21,
2511:2,7-9,13,16,18-20,2312:1313:
13 _ 14, 16, 19 14: 12, 1 7 ~ 18, 20 15: 7 , IS,
22 16:3,9,21 17:6 18:8.14,16 19:2,5-
6,11-12,21,2320:3,621:5-7,15,24
22:7,11,17,2323:11,1924:5,15,18,
2125:3,14,16-1726:1927:14,1628:
1-2,5,11,17,2029:1,10,2530:5,11,
21 31:2,11,13,19-20,25 32,1.16,22
33:1534:1935:1,21,2436:2,6,17-19,
2337:3,1738:3,2039:6,21,2540:6,
8_9,18,2141:3,2142:143:11_12,14
44:7,19-20 45:2,13 46:4,8,25 48:4-5
49:3,8,14,2151:5,8,19-20,2352:1,4,
20,22-2453:1,3,6,8-10,12-13,16
Off
[14J 5:9,138:716:18-1930:1134:
2135:15 38:22 40:6,9 45:19,23 46:10
'lUllilhl>!'"""'~ .,
li =,,,."-'~ '<"-..~" :I~>
Offense
[1] 19:2
Offer
[2] 16:115025
Offered
[11 11: 1~
Office
[6] 19:6,2025:744:91052:17
Officer
131J 3,254:69:2210:6,1411:213:
16 14:4-5,7 18:22 21:18,23 23:10 25:
1127:829:1633:836:12,16,2237,
16 42:15 43:5 45:11 46:12 47:17 49:
352:953:9,12
Officer's
11142,:18
Officers
[1] 27:15
Official
(3] 3:194:1130:5
Oh
[1] 19:18
Okay
[57] 5:1510:111:2012:1418:1.21
:19:1922:16,2423:2,14,18,2124:3,6,
13,19,23 25:2 26:7,11 27:13,23 28:7,
17 30:12,23 31:18,25 32:4,19 33:11
35:5,14,2037:4,2238,1939:2541,
2543:3,10,15,2144:4,6,13,1845:22
46:1,1248:7,2349:12,2050:354:2
Oler
[1] 53:20
On
(49] 3'234:13,16,206':217:8,13,24
8:10,14-15,20 10:7,17,24 11:19 14:
16 15:1 18:5 21:8-9,12 22:13,22 23:
20,22 24:2-] 25:17 26:4,12,14 31:4,
1832:1233:1340:7,1144:1545:11
46:6,9,2550:25 51:3 53:1,7
Once
{7] 4:258:211:834:7,16,1838:7
One
[17] 3:24 7:4 9:19 13:4,19 14:8 18:
11,23 26:19 28:4,8,11-12 29:10 32:
1136:1738:3
One-leg
[7] 7:14,178:209:2426:2427:3
Ones
{IJ 17:22
Only
[1] 13:23
Onto
[1} 4:19
Open
[1] 53:2
Opening
[2] 3:12,14
Operate
[1] 10:10
Operating
[4] 4:1713:1814:820:3
Operator
13] 5:1719,847:3
Opinion
[1] 10:7
Opportunity
[10] 11:1114:1623:1538:2539,1,5
41:747:16,2150:24
Optimum
[IJ 40:24
Or
166l 3:124:1.35:256:7,'138:21,24
9:210:1613:4,1414:2,12,18,2415:
4,6,8,12,2516:3,19-2017:7,9,13,23
19:1820:424:3,1125:2326:10,18
27:4-5 28:21 31:8 32:17 35:6 36:9
37:1 38:11,18,20 39:9 40:15 43:11,
2045:2346:7-8,12,2147:2449:25
50:4,12-13,2351:553:16
Orally
[1] 16:22
Order
[5J 40:2352:19-20,2253:23
Ordinary
[2] 11:815:22
Original
[2] 22:1023:21
Originally
[IJ 22,2
Other
(l9113.:16 11:20 15:116 23 17 20.22,
2420:522:326:2028:5,8,1235:11
37:22 41:12-13 44:9 46:25
Our
[1) 40:6
Out
[22] 4:237:13,2311:612:114 25
15:12,2216:1017:1024:1426:1434:
1837:1140:946:4,848:5,9,15,20
51:17
Outside
[2J 6:352:17
Over
{oS! ~S:1-oS U,:~ 24.'~<l 36:1:< 51:5,14
Overweight
[1] 27:S
Own
[lJ 14:16
p
P-l
[3] 31:1444:1445.3
P.m.
[413:321:342:13 54:6
PA
[1] 12:18
Page
[3] 23:1345:1247:19
Pages
[3] 39:21,2540:7
Paper
[1] 15:21
Part
[9] 25:13,1626:730:535:136:640:
18,20
Participants
[lJ 20:6
Participated
[1] 19:8
Particular
[11] 4:2'29:918:422:1926:1627:
13,25 30:2 37:1 47:6 49:23
Particularly
[3] 25:2026:127:2
Passed
[lJ 10:16
passe:ager
[2] 4:208:15
Patrol
[2] 4:187:10
Patrols
[1] 19:9
Pavement
[2] 28:2,9
Penalty
[2141:1942:2
PennDOT
[6J 12:11> 31:23 32:22,24 33:141:7
Pennsylvania
[6] 3:6 !5:4 21:6,15 53:5,8
Pennsylvania's
[2] 13:2!5 34:20
People
[4] 20:1,327:551:10
Perfect
[1] 27:2l-
Perfo:J:m
[21 40:2j 50:14
Perfo:J:ming
(3] 25: 2~ 27: 6 32: 13
Perhaps
[116:22
Period
[7] 3:24 13:19 15:15 35:21 36:23 53:
',;
Permit
[1] 36:20
PersoIl
[7] 5:13 26:18 28:3 29:1146:20,23
51:10
PersoIlal
[lJ 49:22
PersoIlS
[2] 27:432:12
Pertaining
[2] 5:427:9
Petitioner
t2111:136:13
physical
[6] 9:1615:2516:331:1040:20 so:
"
Pick
[1] 15:2(1
Pickeci
[2] 6:2146:10
Pivot
[1] 8:12
Pivoting
[11 ll:10
Place
[3] 12:426:1928:11
Placed
[7) 7:8 l4:17 18 28:4 33:21 35:22
Plastic
[lJ 24:8
Please.
"&_..-
-
[9) 4:
45:954:
PM
[4] 20:1242:14 53:4 54:8
Point
[7] 7:510:1717:1420:1141:15,17
52:12
Pointed
[1] 14:25
Points
[6] 28:6-7,13 14 38:17 41:9
Police
[9] 4:1710:6112513:1614:4-5,7
27,1553:10
Poplar
[11] 4:19-21,245:324:2-333:1634:
5,14 49:15
Portion
[3] 36:240:2151:19
Portions
[1] 40:12
position
[5] 7:23,25112346:22
Possible
[3] 7,1127:1052.14.
Potteiger
[1) 25: 11
Pounds
[1] 27:6
Practical
[2) 20:4-5
Pre
:15 13:2,12 23:13 40:4
[2] 30,1,4
Pre-arrest
[2] 30:1,4
Preliminary
[8) 22:14,1723:3,1147:13,17-1848:
"
Prepared
[4] 22:629:25307,9
Preparing
[2] 46:1353:17
Presence
[2] 10:848:20
Present
[7] 3:1021:13 26:10,16 27:20 37:23
51:25
Presentation
[1] 53:9
Pretrial
[2] 37:13 42:10
Prevented
[1] 50:17
Previous
[4] 9:13 17:13 19:14 413:13
Previously
[3122:2448,74925
Printed
[1] 40:9
Prior
[12] 5:6 16:6 19:1 29:17 30:17,23
31:8 32:22,24-25 33:1 35 7
Privilege
[3) 3:24 13,18 14:8
Probably
13] 19:1834:1046:18
Problems
13] 25:2327:52911
Procedure
[3] 13:2435:1,4
Proceed
[5] 3:13,17 5:15 13,2 37:6
Proceeded
[2] 5:16:20
Proceeding
[4] 14:129:1733:454:7
Proceedings
[2J 22:342:14
Processing
[lJ 31:3
Prosecution
[lJ 14: 11
Prosecutions
[lJ 13:23
Protocol
[1) 36:6
Prove
[1] 10:15
Provided
[2] 18:1339:4
Provision
[2J 44:1945:11
Public
(I] 31:20
Pulleci
(3) 5:940:5,9
-
--
v
Purposes
[1) 37:17
Pursuant
[1] 13:14
Put
[13] 6,187218:14,229:3,811'11
16:12 33:23 43:19 44:3,12 50'24
Q
",-,bIi!il-~
~'ill~lilllil~'mt -1,,""^'
[lJ 44:2
Refusal
\l5J 3:2314:7,917:5,1531:1332:
18,2336:441,1643:6,13 46:5,10 49,
"
Refuse
(1) 13:17
Regard
[3] 10:14 11:16 17:17
Regarding
[12] 6:249:1210:116:1119:623:3
27,1029:635:641:1447'2451:3
Registration
[61 6,9,13-1.4,16-1724,7
Related
[3J 3:2322:332'15
Relevance
[2] 32:835:24
Relevant
[4] 32:1133:336'847:13
Remain
[4J 7:2513:2314:453:2
Remained
[1] 4:25
Remaining
[lJ 39:25
Remember
[12] 16:2024.9_10,1234:2335:337:
1 41,13 43:22 50;10-11
Removed
[lJ 35:2
Render
[1] 10;7
Repeat
[5] 11:13 20 5 40:13,16 54:3
Repeated
[2] 11:1541:23
Rephrase
[1) 48,16
Replieci
[1] 36:11
Report
(11] 15:1122:13 38:24 39,11,20-21
40:1,744,11-12
Reporter
[2] 42:21,24
Reporting
[1] 22:19
Represented
[3J 3:1119:2021:16
Request
[3] 32:1638:652:1
Requested
[3] 14:3,617:2
Requesting
[2] 13,1517:18
Require
(1) 25:21
Required
[lJ 31:12
Requirements
[1] 5:5
Requires
[1] 26:3
Respect
[4] 27:18,2338:19,24
Respond
[6] 15:3,1742:543:250:751:15
Responded
[2J 11:439:2
Response
[5] 10:1216:14,1617:834:12
Responses
[1] 17:20
Responsible
{2] 38:446:21
Rest
{1! 47:9
Result
[1] 3:22
Resulted
[1] 7:15
Resul ts
[1] 10:14
Resume
[2] 37:1442:11
Retrieve
[2] 11'1135:16
Returned
[1] 44:10
Review
[11] 14: 16,20 17,7 20,6 23 15 J ~ 16
38:25 39:7 41,7 47:17,21
Reviewed
[1] 39:5
Reviewing
Q
[2] 11:2039:20
Qualifications
[1] 10:6
Qualified
[1] 47:6
Quali fying
[1] 17:9
Question
{14J 18:2332:19,2133'534:9,1236:
2042:22,2543:944:645,946:3-4
Questioning
[1] 35:24
Questions
(16] 15:2017:2418:2132:1639:6,
17 41:10,14 42:1,6,8 43:2 413.24 51:
3-452:4
Quick
[1] 50:11
Quickly
\ll B:ll
Quote
['2148:19_20
R
Raised
[5] 8:9,18,21,259:6
Ralph
[2] 18:653:18
Rather
[3J 8:3,5,10
Reaching
[1] 35:7
Read
[18] 12:18,2013:3-4,6,815:2322:
1523:13 39:1,3 5 41:15 42:21,24 47:
"
Reading
[2] 14:15,18
Readvised
[1] 14:23
Ready
[1] 3:16
Real
[1] 50:10
Rear
[2] 7:911:9
Reason
[4) 5:2029:1848:15,21
Reasonable
[3] 10:1426:1832.15
Reasonably
[1126,4-
Reasons
[1] 32:11
Rebuttal
[1] 52:11
Recall
[10] 17:2523224:645:24-2546:6,
15 47:23 413:1 49:23
Received
[3) 19:4,2225,13
Reception
\1] 11:16
Recess
[4] 20:10,1237:1242:13
Recollection
[2] 23:144:2
Reconvened
[lJ 42:14
Record
[5] 3:84:721:4,1353:2
Recorded
[2] 43:744:15
Recording
[lJ 27:15
Reci
[1] 6:5
REDIRECT
[lJ 49,1
Refer
(1] 43:25
Referred
[1) 27:24
Referring
[4] 23:12,2439:2041:20
Refresh
[:2] 14:1941:10
Richwine
[l:2J 15:14 18:6 37,6,10,:25 38,19,22
46,13,20 51:25 ~2:15 53:18
Ride
[1] 12:16
Right
{27J 3:185:141:218,1,11,13_1410:
24 13:22 14:2,4,24 18:13 19:13 29:
22 33,5 35:19 36:15 37:10 38:22 39:
842:2,944:13 4.5:17 52:8
Right-hand
[2] 5:13 39:22
Rights
(2] 13:20-21
Road
[2] 5:9,14
Roadway
(I] 28:2
Room
[5] 3:238:8,17,2147:9
Route
[lJ 35,12
Roving
[1\ 19,,,
Run
[2] 26,1547:6
s
S
[1] 53:20
S-t-a-l-e-y
I1J 4:8
Safely
[lJ 10:10
Said
[15] 12:116:8_9,17,1917:15,2319:
1343:1744:848:14,19504,9,11
Same
(2] 9:448:2
Satisfaction
[lJ 33:20
Satisfactory
[1] 53:23
Say
[10] 15:1819,1826:18287,2130:
20 36:17 39,9 48 4 50:1
Saying
[J] 15,41622 4il:l
Says
(5] 22:2323:20014:1945:1248:10
Scene
[lJ 33:23
Scenes
[1] 27:16
Scheduled
{I] 53:3
Scientific
[J] 10,4-5,7
Score
[2] 8:192925
Scored
13] 7:12,179:9
Scratch
[2] 22:234:25
Screening
[2] 30:1,4
Seal
[1] 31: 18
Searched
[4] 35:1,3,2136:23
Seated
[8] 5:1834:1938:2438:11,13,2346:
22-23
Second
[9] 6: 14 8: 23 9: ~-6 52: 25 53: 5,14,
16,18
Seconds
[1] 9:5
Section
[3] 3:2213:14 21:9
Sections
[1] 13:4
Secured
(1] 12,16
See
[6J 6:824'2237:540:2544:2245:14
Seen
[2J 23:1739:21
Sent
[2J 32:2,4
Sentence
(ll48:3
September
[3] 3:2040:2,8
Sequestration
-
[lJ 37:'
Series
[I] 8:11
Session
[1] 21:5
Several
[2] 14:1939:6
SFST's
[I] 19:7
Shaking
[1] 11: 18
Shall
[1] 53:2
Sheet
[2] 29:2530:4
Shook
[2J 16:2050:8
Shore
[3] 12:5,1734:1
Short
[lJ 27:15
Shortly
[1] 15:13
Should
[3] 26:427:2039:9
Showing
[1] 47:18
Shrugged
(2] 16:18-19
Side
[7] 4:225:14,168:4,1510:2446:25
Sides
[1.] 9:1
Sidewalk
[I] 33:15
Sign
[3] 4:2545:19,23
Signature
[4] 44:2045:13-14,16
Signs
[2] 9:13,16
Silent
[2J 13:2314,4
Simply
[1] 36:19
Sit
[lJ 46:25
Sitting
(I] 46:17
Situations
[1] 26:15
Six
[2] 7:128:19
Slowly
(I] 13:8 -
Small
[1] 8:11
Smell
[4] 6:1,77:19:17
So
[18] 5:246:1,79:216:2417:124:
17 26:21 31:25 36,19 38:23 40:23 41:
25 42:16 44:6 46:25 50:16 52:16
Sobriety
(15J 7:6,119:2211:9,1219:2325:4
25:25 27:24 31:9 32:14,25 33:20 40:
13,1950:14
Some
[15] 6:21-229,1512:1315:2115:8
28:2029:332:1235:2036:2338,17
39:641:15,17
Someone
[2] 5:1210:10
Something
[1] 50:9
Sometime
[1] 30:9
Somewhere
[I] 15:9
Soon
[11 7:24
Sorry
[6] 6:10 42:9 43,9 44:22 48:16 52:14
South
[2J 4:19-20
Speak
(5] 13:2214:2,2415:417:21
Speaking
[4J 5:246:2511:617:17
Specific
[3] 7:1619:341:14
SpeCifically
[2] 26:1139:2
Spell
[1] 4:7
Spending
~"
[I] 51:13
Spent
[4] 36:5,7,12,16
Spite
[1] 36:19
Spoke
[I] 5:17
Stage
(lJ 7:20
Stagger
[I] 5,3
Staley
(23] 3:254:2,6,89:2211'221:18,
23 23:10 27 8 29:16 33,8 36:12,22
37,16 42:15 43:5 45:11 47:18 49:3
52:953:10,12
Stalling
[lJ 36:9
Stand
[8] 7:14,18 6:20 9:25 26:24 27:3 45:
,
Standard
[1] 35:1
Standardized
\2119'2325,)
Standing
[3] 24:2238:1112
Started
[3] 6:1872439:7
State
[3] 4,519,725:22
Stated
[2J 35:1249:25
Statement
[6J 17:1024:2329:841:1243:551:
"
Statements
[4J 3:12,1539:9,18
States
[2] 26:227:4
Stenographer
(lJ 13:9
Step
[2] 37,1152:6
Stepped
[I] 7:23
Stepping
(1] 8:7
Steps
[9] 8:3,8,10-13,15-17
Still
[5J 21:1934:8,1742:16
Stop
(12] 4:255:2,79,2022:1824:727:
1149:4-550:3
Stopped
[6] 4:21,255:14,2324:24-25
Straight
[7] 26:3,9-10,14,1928:6,12
Street
(5J 4:19,245:2-323'2326:14
Stumbled
(1] 8:14
Subject
[2] 40:19,23
Submit
[12] 7:513:15,1714:5-6,915:717:
2,8,1851:1552:2
Submitted
[IJ 31:23
Subsection
[3] 13:5 15:1 41 22
Subsequent
[2] 21:1029:3
Substance
[2J 13:14 14:12
Such
\2\ 21,11 26.E-n
Sure
[9J 7:1918:619:4,16,2542:2343:
1944:154:5
Surface
(1] 26:5
Suspended
(3] 3:2413:1814:8
Suspension
[31 3,81-'J'22 52:24
Sustain
[1] 10:25
Sustained
[I] 29:23
Sway
[1] 7:10
Swayed
[I] 8:23
Swaying
,-,A~~
, ~'"~,~
c ,~~'.,
L_;,;__J>'_~'
{2] 6:48,24
Sworn
(lJ 4:3
Symptoms
[1] 29:10
System
(.2) 27:1540:6
T
Table
[2] 46,9-10
Take
(15J 15:317:5,718:1220:1031:22
34:4,13,21 35:10 43,18 46 4 47:9,25
5C:24
Taken
[7] 2C:12 3C:10-11 34:18 35:15 38:7
42:13
Taking
[10J 8:1112,1214:3,2517:1227:10
35:14 41:19 42:2 50:17
Talk
[lJ 14:23
Talking
(1145:4
Tape
[1] 43:11
Taping
!3] 30:2431:4-5
Taught
[1] 27:19
Tell
[7J 4:1511:2016:3,6,1650:12,15
Telling
[2] 15:2551:11
Ten
[1] 8:23
TERM
!2] 3:721:8
Terms
(lJ 19:21
Test
[41] 3:238:210:2,511:1913:16,18
14:3,5,2515:3,817:2,7825:18,24
26:2-3,25 27:6,18 31:13 32:16,23 33:
11,17,2035:1035:14 40 24 41:19 42:
3 43:18 46:13 47:1,3,25 50:18 51:15
Testified
[4J 4:317:1922:348:18
Testify
[3] 22:2423:1848:8
Testifying
[2] 23:242,16
Testimony
(11] 23:22-2329,1136:2,1242:18
47:12,1748:7,1153:9
Testing
[3] 13:2414:940:13
Tests
[l4J 7:6,119.2319.2320:525427:
24 31:9,11 32:14,25 40:19,21 50;14
Than
[6J 8:6,1034:1035:1241:12 44:9
Thank
[6] 5:15 13:11 37:11 42:20 52 9 54:2
That
[314] 3:9,214;15 5:6,11,19,23-24 6:
4,8,11,15,21-221:4-7,20,22-2589,
22-259:2,11,13,15,1910:3,5,12,14,
2211:10,16,18,21,2512:6,8,10.12,
17,2013:12,15,1714:15,22-2415;2,
9,1116:6-8,1517:4,10-12,14,19,22-
2319:1,22,25 2L5,11,13,25 22:3-4,
8,12,14,16,18,23-2523:13,15,19,23 I
24:2,9,13,17,22-23,2525:1,6-7,11, I
16,21-2226:2,5,12,16,18,25273-4,
9,14,19,2328:10,14,18-1929:1.4,8-
10,1930:2,4-5,7,9,11-12,18,2431:3-
4,9-10,18,2032:2,5,12,14-15,19,23
33:3,8-9,12-13,21,24 34:2,9-10,24'
2535:4-5,8,10,20-2136:3,5-8,11-12,
11,19,22-23 37,1,21.23 38:15,23,25
39:2,9,12,18,22-2340:2-3,5-6,12,15-
16, 21 41: 2,4, 7, 1 0 ~ 11, 14 , 21, 23 , 2 5 42:
1,1243:5-6,8,11-12,15-17,19,2244
12,15,19-20,2245:12,14,17,19463,
5,11,15-1647:1-2,6,8-9,14,20'21.23
48: 1-2, 5,8,11. 14, 16-17, 19 49 7, 9 - ~O,
18,21-2350:4-5,10,12-13,16,21,25
51: 4 _5,7,10,12,1'1,20,23 52 ~5 ~ J ~,
13,23
That's
[18\ 8:1817:25 :8:3 29 2,17 3' ,',
33:10,14,22 34:12 36:7,25 J9 4_
2047:548:10509
The
[532] 3: 4- 5,8 -9, ~1, 13,16, 1C, Z:' 22
254:7,11,15,17,21,23-25 5 I
13 - 14, 16 - 17 , 19 - 2 ~ , 23 , 25 6
14,16-17,19,2471,7-9,11<4
19-2082,4,9,14-16,20-21,2:1
5 , 11, 15 - 17 , 2 4 - 2 5 10: 2 , 5 - 7 , ~ I)
17,20-21,24-25 11 2-3,7-9,::
U"l,5,B,l7,19-2:; 13:3.,'3,11'-
20-22,2'114:3-7,J,11,16 19
1,3,7,3-6,20,22-23 16:5,11-12 17,2,7-
8,11-1:1,18,2118:2,8,10,14_15,17,23,
2519::1-7,11,14,19,22,2420,3,5-6,
1021:4-5,8-9,12-14,1622:7,11.14,
17-18,21-23,25 23:6,8,17,19-20 24:6,
14-15,17-19,2125:3,6,17,2326:2,14,
17,20,2427:3,6,18,2328:1-2,5-6,8_
9,11,1729:1,10-11,15,18-19,2230,7,
10,17-18,20-21,23-2431:2-4,6,8,11,
18 32:1,4,8-9,11,15-16,18-19,21-22,
24-2533:3,5-6,11,15-16,20,2334:1,
4-5,7,12-14,16,19,2135:2,4,7,12,14_
16,18-19,22,24-2536:1-3,5,7-8,10,
13,16-17,20,2437:7-8,10,17,2038:4,
6,8,17-18,2039:1-2,4-6,15,17,21-22,
2540:1-2,5-9,12,15,18-20,23_2441:
2,9,11,14-15,18-19,21-23 42:1-2,5,7-
9,15,18,21,23-2443:1,5,9,1244:6,9-
10,19,23,2545:2,5,9,12-14,16,20,23,
2546:1.7,9-10,13-14,17,20-2547:1,
9,2548:1-4,9,13,15,16,20,2549:3,5,
7-8,10,12-13,15,17,20,2350:2-3,14,
17,23-2451:2-3,5,8,14-15,1752:6,8,
12,16-17,19-20,24-2553:1-2,6_7,9_
11,13,16-17,19,2354:2-5,7
Their
(2J 5:1;l29:12
Them
[5] 8:2528.940643:25571.:1:1
Then
(27J 6:198,169:5,2511:1812:4,14,
16 14: 1~ -15,23 15: 20 16: 8 17,9 18: 1
22:16 3il:12 34:18-19 37:13 43:144:
7 45:13 46:24 48:2 49:7 51:13
Theory
[2J 36,3
TherE!
[42J 5,:<56:229:14,2410:2211:6,
1215:1:<,2218:1326:1527:9,2028:
2 29:18,19 30:12 31:5,25 32:10 33,
12, 15 3~: 5, 19-20 36: 12,22 37,22 38:
1839:1./40:12,1541:9,16,2543:15
44:7 45114 46:7 48:2-3,10
There's
(8J 27:S,21 31:18 33:12 43:11 44:15
45:1153-:22
Thereafter
[1J 15:3-3
These
(2] 6:2044:15
They
[3] 26:1937:2540:24
They're
[2] 26:1835:19
Things
(lJ 40:14
Think
(13] 19:1334:1036:5,1640:1741:
15 43:1 45:5 46:7,9 48:15,20 52:16
Third
[4J 4:21.245:26:19
This
[57] 3:4,74:16,229:810:1811:2
~;:~~;~~ ~:~~~~~02~~~~52~~~~~21~;\,
823:3,1726:1627:2528:1729:3,17
30:1,5 31:14,16,22 32:2,17-18 33,4
35:2436:331:140::14:1:71.645:1146:
4-5,10,16 51:19 52:4,12,19,23 53:1
Those
[loll 13:4 30:15 31:11 32:16 38.3,20
39:18 40:21 42:5 43:2,23 45:16 50:1
51:6
Thought
[4] 11:2516:9282348:14
Three
(11 6:1 13:4 15:6 11:13 37:22 38:3
40:15
Through
(3J 4:2325:647:19
Thursday
(2J 53:354:5
Thus
12] 6:239:9
Time
[63J 3:45:8,196:8,11,14-15,199:9
12:1,16 14:22 15:9,15 17:11,14 18:
2219,9,1122:11,11,19,21,23,2523:
19 24:25 29:1,20 31:2,8,25 32:18 35:
21 36:5_1,18_19,23 38:18 40:5-6 41:
2,9 44:15 49:3,7-10,12-13,21,23 50:
251:1953:6,13,1654:4
Times
[4] 11:1315:717:13 40:16
To
[269J 3:12-13,16,234:125:4,6,9,13,
16,18,226:2,8,10,18,20-211:5,8-10,
~~;~~~~~02~~~;,~:;~~o~~;:~~:~~1~~~=,
~;9 ~~~; 1~:~~ ~~= ~~~ 1;~ ;~=;4 1~4 ~;: ~~6,
9 15_is'21,23_24 15:3-4,1,10,13,11,
2316:6:12,2417:2,5,6,13,15,11-18,
2118.11519:1020:1-221:12,1822:
311 i3:15 23:1,12-13,15,24 24:7,13-
1; 19 26:13-15,17,2127:10,18,23-24
28:14_5,10,1829:3,1730:10,17,23
31:8'1216,19,22-2332:2,15-16,18,
22:2~-2; 33:1,3,10,13,19-20 34:1,4-
6,12 1 5: 1,10, 12, 14~16, 22 36: 4,
1,12,23 _ 37:11-13,1638:6,19,22,
24-2539,1-2,4-5,7,2040:3,13,16,23_
2441:7,20,2342:2,5,7-10,11-18,21
43:2,18,2544:6,9-10,2045'2346:3,
1741:1,6,9,13,17,20-21,2548:3-4,
15,21 49:15 50:14,20,23-24 51:15 52:
1,1053:17,23
Today
[6] 3:11 5:18 23:22-23 25:2 42:18
Today's
[lJ 53:7
Toe
[4J 7:228:326:4-5
Told
[2] 12:832:5
Too
[lJ 7:24
Took
[3J 8:214:1146:8
Top
[2J 39:2240:7
Torso
(2! 6:239:7
Total
[1] 14:20
Totally
(ll26:6
Toward
[2] 9:721:9
Towards
(ll4'24
Township
(1] 35:9
Traffic
[2J 5:224:6
Trained
[3] 25:3,1726:24
Training
{20j 6:21 9:11 19:1,3,21-22,24 25.6,
13,20-2126:1-2,1127:2-3,9,13,19
32:11
Transcript
[4] 23:10,16,2047:19
Transferred
(1] 15:13
Transpired
[1] 22:20
Transport
(4J 12:822:2335:849:14
Transportation
(4] 3:621:7,1553:8
Transported
[4J 12:5,15,1734:1
Transporting
{lJ 11:24
Traveling
(2J 4,2023:22
Treating
(1] 46:5
Trial
[1] 41:17
True
[7J 24:11 27:3,8 31:9 34:25 36:22
Truth
(lJ 43:12
Try
(lJ 13:10
Trying
[2] 10:1536:4
Turn
[Ll] 7:12-13,17,209:2425:17,2426:
327:1833:11,17
Turned
(3J 4:198.13 18:1
Turns
[2] 12:116:10
Twenty-four
[lJ 20:9
Two
U3\ 6,11.3.421:1:6-7,12,1.4 12,11 38,
20 39:21 40:15 42:1 45:16 50:1
Type
[5.1 6:22 10:la 12:13 16:8 28:20
u
ultimately
(1] 46:20
Under
(lS] 12:4,1113:13,2414:9,1119:2,
14 20:3 21:19 22:1 27 21 33:21 42:16
Understand
(11] 15:2,411:2230:2239:3,12,15
40:1143:951,7,11
Understanding
[1] 16:24
Understood
.
-
~~i1~~~;3 21 36:1"
(1] 4:18
Unless
(lJ 14:6
Until
{lJ 32:11
Unusual
(4J 5:7,1111,451,10
Up
[BJ 5:16 6:21 9:8 15:21 28:9 36:19
50:2551:16
Upon
[7] 5:167:29:11-12,1517:1152:23
Upright
(IJ 24:22
Upset
[1] 46:9
Upward
[lJ 9:7
Us
[2] 24:53811
Use
{5J 9:1626:13 14,17 27 25
Used
(4] 7:782530:1748:2
Using
[lJ 42:8
v
Vehicle
[29] 3:224'22,255:1,4,9,176:3-4,
11 7:1-10 8:15 10;10 11:9,25 12:12,
1513:1521:2423:2524:3,15,16,21
Vehicles
[lJ 20:3
Verbal
(1] 38:6
Verbalized
[lJ 16:21
Verbally
(2] 17:9,15
Versus
[2] 3,521:6
Very
(4J 41:2351:2252:18
Vicinity
(1] 33:15
Video
[4J 30:2431:3,543:11
Videotape
(5J 38:4,143:145122-23
Videotaped
(1] 51:19
View
[2] 21:924:15
Violation
[6J 3:225:4,2322:7,1127:14
Visible
(IJ 33:12
Voice
(lJ 11: 14
w
Waist
[1) 9:1
Walk
[11J 7:12-13,17,20,246:5,13 9:24
24,14 25:11,24 26:) 27,18 33.11,13,
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C E R T I F I CAT ION
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.
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and
directed to be filed.
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Date '\
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JAMES DOYLE, III
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-6027
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
PETITIONER'S TRIAL BRIEF
TO THE HONORABLE J. WESLEY OLER, JR., JUDGE OF THE ABOVE-SAID COURT:
I. FACTS
Petitioner, James Doyle, III, was stopped while operating a motor vehicle by Officer Staley
of the New Cumberland Borough Police Department on or about August 10, 2001. The reason for
the stop was that Petitioner's vehicle had a headlight out. Officer Staley observed no erratic driving
exhibited by Petitioner's vehicle. Subsequent to the vehicle stop, Petitioner was asked to submit
to standardized field sobriety tests in an area near 4th & Poplar Streets in the Borough of New
Cumberland where the pavement is uneven and irregular. Petitioner was not questioned as to
whether or not he had any physical defects that may interfere with his ability to take the walk-and-
turn and one leg stand test.
Officer Staley received training in standardized field sobriety testing before the above-
mentioned incident and was provided with a training manual outlining the test conditions for both
the walk-and-turn and the one leg stand test.
Petitioner was subsequently transported to the West Shore Booking Center for processing.
Upon arrival at the Booking Center, his handcuffs were removed, he was searched and frisked, and
placed in an open area equipped with video and audio taping equipment as well as an Intoxilyzer
machine. Petitioner was handed PennDOT form DL-26 and asked to review same. Petitioner, who
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has a medically diagnosed hearing disorder as well as Meniere's Disease, had questions regarding
his rights outlined in Penn DOT Form DL-26. Officer Staley was standing over Petitioner and not
at eye level while Petitioner was attempting to question Officer Staley regarding his rights,
Petitioner was not wearing a hearing aid at the time of this discussion.
Petitioner has been under the care and treatment of Donald Richardson, a speech therapist
with the Veterans Administration in Philadelphia since July 2000. Mr. Richardson's deposition was
conducted telephonically with the consent of PennDOT's counsel and will be offered as an exhibit
as part of these proceedings.
No chemical test was conducted and Officer Staley reported this incident to the Department
of Transportation as an alleged refusal of chemical testing pursuant to ~1547 of the Vehicle Code.
II. ISSUES
1. Did Officer Staley have reasonable grounds to request a chemical test
when he failed to follow his training protocol which cautions police
officers froni administering the walk-and-turn and one leg stand test
to persons with inner ear disorders and/or difficulty in maintaining
balance?
(a) Did Officer Staley have reasonable grounds to believe that
Petitioner had failed field sobriety tests when they were not
administered at a location considered acceptable based upon
his training?
2. Under the facts of this case, did Petitioner's actions in questioning his
rights via PennDOT Form DL-26 constitute a refusal as a matter of fact
when Petitioner at no time stalled, played games, or indicated that he
was refusing chemical testing while the booking agent was satisfying
the 20 minute waiting period under PennDOT regulations at 67
Pa.Code ~77.24(a) which require that the subject be kept under
observation for at least 20 consecutive minutes prior to taking the first
breath sample?
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3. In the event the court finds that Petitioner's conduct was a refusal as
a matter of fact, has Petitioner presented competent medical evidence
to indicate that the delay was based on his inability to understand
visual cues without the benefit of his hearing aid and while Officer
Staley was not at eye level and while there was background noise
present in the booking station?
III. RULES
1. Whether a pOlice officer has reasonable grounds to request a chemical
test under~1547 is a mixed question of law and fact. Administration
of field sobriety tests on an uneven surface can prohibit a police
officer from having reasonable grounds to request a chemical test.
See Commonwealth. Department of Transportation. Bureau .of Driver
Licensina v; Dixon, _ Pa.Cmwlth. _,596 A.2d 286 (1991).
2. Where there is no refusal as a matter of fact and no stalling tactics
present,. the mere lapse of time does not constitute a refusal under
~1547 ofthe Vehicle Code where there is a reasonable explanation for
the lapse of time. See aenerallv. Todd v. Commonwealth. Department
of Transportation. Bureau of Driver Licensina, _ Pa. _, 723 A.2d
655(1999);
A motorist must be allowed a reasonable and sufficient opportunity to complete chemical
alcohol testing. See Todd v. Commonwealth, supra at A.2d 658. It is conceded that a refusal to
test need not be manifested overtly or verbally. See Todd. supra at A.2d 658.
Unlike the line of cases where the motorist is exhibiting signs of stalling, see Mashuda v.
Commonwealth. Department of Transportation. Bureau of Driver Licensina, _ Pa.Cmwlth. _'
701 A.2d 301 (1997) and McCloskey v. Commonwealth. Department of Transportation. Bureau of
Driver Licensina, _ Pa.Cmwlth. _,722 A.2d 1159 (1999), the evidence in the case at bar will
reveal that the relevant time period which was utilized in part to explain the provisions of Penn DOT
Form DL-26 was concurrent with the required waiting period for warming up and pre-qualifying the
Intoxilyzer 5000 for an actual test sample. See 67 Pa.Code 77.24 - Breath Test Procedures which
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reads, in pertinent part:
(a) Observation. The person to be tested with breath test equipment shall be kept
under observation by a police officer or a certified breath test operator for at least
20 consecutive minutes immediately prior to administration of the first alcohol breath
test to be given to the person, during which time the person may not have ingested
alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.
Custody of the person may be transferred to another officer or certified breath test
operator during the 20 consecutive minutes or longer, as long as the person to be
tested is under observation for at least 20 consecutive minutes prior to initial
administration of the alcohol breath test.
The undisputed factual evidence in this case will indicate that there was no discussion
regarding implied consent at the site of the arrest. There was no discussion of implied consent on
route to the West Shore Booking Center. In fact, Officer Staley did not have possession of
Penn DOT Form DL-26 until such time as he retrieved a copy from the Booking Center after
Petitioner arrived and was being frisked and searched for weapons. The process of searching and
frisking Petitioner preceded him being placed in the vicinity of the Intoxilyzer 5000 which was being
administered by Officer Reichwein, not Officer Staley.
Evidence in the Commonwealth's possession will indicate that the observation period for
purposes of breath test procedures under PennDOT regulations was not initiated until such time
as Petitioner arrived at the Booking Center.
Petitioner acknowledges that in the Todd case, supra, the Supreme Court of Pennsylvania
indicated that once a faulty or inadequate breath sample was presented'~ a motorist and he was
subsequently wamed that a failure to supply a sufficient sample would constitute a refusal, did not
entitle~ Todd to the full period of time for the breath test machine to cycle internally. See Todd v.
Commonwealth. Department of Transportation. Bureau of Driver Licensina, supra at A.2d 658, 659.
Todd was decided predominately on the fact that the motorist failed to supply a sufficient sample
4
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of breath. See Todd, supra at A.2d 659.
While it is acknowledged that ~1547 does not contain a time requirement before a motorist
can be deemed to have refused chemical testing by conduct, it cannot be said in the case at bar
that the lapse of 15-20 minutes was unreasonable as a matter of fact and as a matter of law when
the breath test device was not able to receive a breath test sample until the 20 minute waiting
period was satisfied under 67 Pa.Code ~77.24.
3. Hearing impairment can prevent a licensee from knowingly and
consciously refusing to submit to chemical testing. See Department
of Transportation. Bureau of Driver Licensina v. Gaertner, _
Pa.Cmwlth. _, 589 A.2d 272 (1991). A question of whether a
motorist's decision to refusal chemical testing was knowing and
conscious is a question of fact for the trial court. See Gaertner, supra
at A.2d 274; see also Commonwealth. Department of Transportation,
Bureau .of Driver Licensina v. Zeltins, _ Pa.Cmwlth. _, 614 A.2d
349,350 (1992).
The deposition of Mr. Richardson establishes that Petitioner has a pre-existing hearing
disability and has been diagnosed with Meniere's Disease. His hearing disability is severe enough
to qualify him for a hearing aid in his right ear. His left ear is functionally inoperable. Mr.
Richardson had an opportunity to view the videotape at issue in this case as well as his treatment
notes both prior to and after August 10, 2001. Mr. Richardson was offered as an expert witness
in the area of speech therapy. The Department of Transportation did not challenge as a matter of
record his qualifications as an expert in that field and Mr. Richardson rendered an opinion
consistent with a person of Petitioner's functional hearing capacity, ability to lip read, and situational
factors consistent with those presented to him at the Booking Center and has indicated to a
reasonable degree of professional certainty that Petitioner would have difficulty in understanding
5
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an explanation by a police officer regarding questions he had relative to written text.
IV. CONCLUSION
WHEREFORE, Petitioner prays Your Honorable Court make the following findings of fact:
1. Officer Staley did not have reasonable grounds to believe that Petitioner was under
the influence of alcohol due to his failure to comply with his own training protocol in
field sobriety testing;
2. Under the facts of this case, Petitioner never refused chemical testing as a lapse
of time was reasonable given the circumstances of his case, including the fact that
implied consent did not come up until he was frisked and searched at the Booking
Center; and
3. The Court further finds that Petitioner has presented sufficient credible evidence
indicating that his hearing was impaired and that his hearing aid was not in at the
time of his communication with Officer Staley regarding his O'Connell warnings.
Petitioner asks that Your Honorable Court make the following conclusions of law:
1. That Officer Staley did not have reasonable grounds to request Petitioner to submit
to a chemical test under 31547;
2. That Petitioner did not refuse as a matter of law;
3. Petitioner has presented competent medical testimony to establish that any delay
in his decision over whether or not to take a chemical test was reasonable and
established by competent medical evidence presented to the court by a qualified
expert witness; and
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4. Petitioner's alleged refusal was not knowing and intelligent due to a pre-existing
medical condition.
Respectfully submitted,
MANCKE WAGNER HERSHEY & TULLY
Date: 03/21/02
Bb"L~re
1.0. #43092
2233 North Front Street
Harrisburg, PA 17110
(717) 234-7051
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CERTIFICATE OF SERVICE
I, David E. Hershey, Esquire, of the law firm of MANCKE WAGNER HERSHEY & TULLY,
hereby certify that I am this day serving a copy of the foregoing document to the attorneys or
parties of record in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by hand delivery, on the 21st day of March, 2002 at the
address listed below:
George Kabusk, Esquire
PA Department of Transportation
Riverfront Office Center, Third Floor
1101 South Front Street
Harrisburg, PA 17104-2516
~.~..
Davi . ershey
MANCKE WAGNER HERSHEY & TULLY
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
RlVERFRON,T OFFICE CENTER-THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
TELEPHONE: (717) 787-2830
FAX: (717) 705-1122
June 6, 2002
The Honorable J. Wesley Oler, Jr.
Court of Common Pleas, Cumberland County
Cumberland County Courthouse
I Courthouse Square
Carlisle, Pa. 17013
Re: James M. Doyle, III v. Commw. ofPa., DOT, BDL, No. 2001-6027, License
Suspension Appeal
Dear Judge Oler:
Please accept this letter as the Department of Transportation's brief in the above-mentioned
matter. Hearings were held in the above-mentioned matter on March 21, 2002 and June 6, 2002.
By official notice dated September 21, 200 I the Department of Transportation notified the
petitioner, James M. Doyle, III, O.L.N. 16528999, that as a result of his violation of Section 1547
ofthe Vehicle Code, relating to Chemical Test to Determine Amount of Alcohol or Controlled
Substance, on August 10, 2001, his operating privilege was being suspended for one year. The
petitioner appealed the one-year suspension of his operating privilege.
Officer Brian Staley of the New Cumberland Police Department stopped the petitioner on
August 10, 2001 at approximately 1 :28 a.m. for an equipment violation- the vehicle's headlight
was out. Officer Staley explained the reason for the stop to the petitioner. While he did so,
Officer Staley smelled an odor of an alcoholic beverage emanating from the petitioner.
Additionally, the officer noticed that the motorist staggered and swayed and that his eyes were
red, bloodshot and glassy. The officer asked the motorist for his driver's license and registration.
The motorist at first only produced the driver's license and then after being asked for his
registration for a second time, after fumbling for it, eventually produced that document. The
motorist admitted to Officer Staley that he had indeed been drinking.
The motorist told Officer Staley that he was not wearing his hearing aid. Officer Staley
provided the motorist an opportunity to retrieve and insert his hearing aid. The petitioner
declined the invitation to do so. Officer Staley testified that the petitioner did not have any
apparent difficulty in hearing. Officer Staley, however, testified that the petitioner did
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occasionally ask the officer to repeat what he said, the officer did so in a louder voice.
Additionally, the officer indicated that the petitioner appeared to understand and follow
directions. The petitioner did not indicate to Officer Staley that had the inability to hear the
officer's verbal communications.
Officer Staley asked the motorist to submit to several field sobriety tests. The petitioner
did not inform Officer Staley of any physical or medical limitations that would have affected his
ability to perform the field sobriety tests. The motorist failed the field sobriety tests. Based upon
the officer's observations, Officer Staley informed the motorist that he was under arrest for
violation of Section 3731 of the Vehicle Code, relating to Driving Under the Influence of
Alcohol. At approximately I :41 a.m. Officer Staley placed the motorist in custody. He then
handcuffed and place the petitioner in his police vehicle and transported him to the West Shore
Booking Center. They arrived at the booking center at approximately I :57 a.m.
After the petitioner had been arrested for violation of Section 3731 of the Vehicle Code,
relating to Driving Under the Influence of Alcohol, and secured by the police officer, the
petitioner told Officer Staley that he had Meniere's Disease. When Officer Staley asked the
motorist what that was, the petitioner did not provide any explanation, he only shook his head as
in the negative.
After they arrived at the West Shore Booking Center, Officer Staley requested the
petitioner to submit to a breath test and read word-for-word the Pennsylvania Department of
Transportation DL-26 form to the petitioner. Additionally, Officer Staley provided the petitioner
with the form so that the petitioner could read the form. According to Officer Staley, the
petitioner appeared to read the form. Rather than agreeing to submit to the requested breath test,
the petitioner kept on asking questions and asked to speak to his lawyer.
Officer Staley explained the contents of the DL-26 form to the petitioner and explained to
the petitioner that he did not have a right speak to an attorney or anyone else before submitting to
the chemical test. Finally after about 20 minutes of explaining, Officer Staley asked the
petitioner ifhe would submit to the requested breath test. The petitioner said ''NO'' and added
that he did not believe that having a headlight out warranted his arrest.
DEPARTMENT'S BURDEN
The Department bears the burden to establish the facts supporting the one year suspension
pursuant to Section 1547 of the Vehicle Code. Department of Transportation, Bureau of
Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989). The Department must establish
the following:
(I) that the motorist was arrested for a violation of75 Pa.C.S. ~ 3731 by a police officer
who had reasonable grounds to believe that the motorist was operating or in actual
physical control of a motor vehicle while under the influence of alcohol or a controlled
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substance;
(2) that the motorist was requested to submit to a chemical test;
(3) the motorist refused to submit to that test; and
(4) the motorist was warned of the consequences of refusing the chemical test.
Banner v. Department of Transportanon, Bureau of Driver Licensing, 737 A.2d 1203
(Pa. 1999); Vinansky v. Department of Transportanon, Bureau of Driver Licensing, 665 A.2d
860 (Pa. Cmwlth. 1995); Department of Transportanon, Bureau of Driver Licensing v.
Ingram, 538 Pa. 236, 648 A.2d 285 {I 994); Department of Transportanon, Bureau of Traffic
Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989); Ostrander v. Department of
Transportanon, Bureau of Drive Licensing, 116 Pa. Cmwlth. Ct. 243, 541 A.2d 441 (1988).
Once the Department has established its prima facie case, the burden of proof then shifts to
the petitioner to prove that he was not capable of making a knowing and conscious refusal to take
the test or to establish any other affinnative defenses. Department of Transportanon, Bureau of
Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 282 (1994).
REASONABLE GROUNDS
In this case, the petitioner argues that there was no reasonable grounds to request the
chemical test. In the context of implied consent law, the test for reasonable grounds is a lesser
standard than probable cause. Vinansky v. Department of Transportanon, Bureau of Driver
Licensing, 665 A.2d 860 (Pa. Cmwlth. 1995).
The test for reasonable grounds is not very demanding. Vinansky v. Department of
Transportanon, Bureau of Driver Licensing, 665 A.2d 860 (pa. Cmwlth. 1995). The test for
reasonable grounds is: if a reasonable person in the position of the arresting officer. viewing the
facts and circumstances as thev appeared to the arresting officer at the time. could have
concluded that the motorist had operated the vehicle while under the influence. such reasonable
grounds are established. Department of Transportanon, Bureau of Traffic Safety v. Dreisbach,
26 Pa. Cmwlth. 201, 363 A.2d 870 (1976). See also Banner v. Department of Transportanon,
Bureau of Driver Licensing, 737 A.2d 1203 (Pa. 1999); Keane v. Department of
Transportanon, 127 Pa. Cmwlth. 220, 561 A.2d 359 (1989).
In fact, an officer's reasonable grounds is not rendered void even iflater it is determined
that the officer was incorrect. Department of Transportanon, Bureau of Traffic Safety v.
Dreisbach, 26 Pa. Cmwlth. 201, 363 A.2d 870 (1976). Additionally, in the context of implied
consent, the legality of the stop is immaterial. Department of Transportanon, Bureau of Driver
Licensing v. Wysocki, 517 Pa. 175,535 A.2d 77 (1988).
In determining reasonable grounds, the court is to look at the totality of the circumstances.
Banner v. Department of Transportanon, Bureau of Driver Licensing, 737 A.2d 1203 (pa.
1999). There is no need for the officer to have the reasonable grounds to believe that the
3
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motorist operated the vehicle while under the influence before the officer made the stop. See
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
v. Stewart, 527 A.2d 1119 (Pa. Cmwlth. 1985). What is required for determining reasonable
grounds is whether a reasonable officer, viewing the facts and circumstances as they appeared, at
any time during the course of interaction between the officer and the motorist could have
concluded that the motorist had operated the vehicle while under the influence. Commonwealth
of Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Stewart, 527
A.2d 1119 (Pa. Cmwlth. 1985).
Officer Staley testified that after he stopped the vehicle that the petitioner was driving, he
detected an odor of an alcoholic beverage emanating from the petitioner, that the petitioner
swayed, that the petitioner had bloodshot and glassy eyes, that the petitioner fumbled for his
documents, that the petitioner failed the requested field sobriety tests, and that the petitioner
admitted that he had been drinking. Clearly, ample reasonable grounds existed for the police
officer to believe that the motorist operated the vehicle while under the influence of alcohol.
The petitioner argues that the officer failed to follow training protocol relating to the field
sobriety tests and, therefore, argues that there was no reasonable grounds to believe that the
petitioner operated a motor vehicle while under the influence of alcohol.
As stated earlier, the test for reasonable grounds is not very demanding, that is if a
reasonable person in the position of the arresting officer, viewing the facts and circumstances as
they appeared to the arresting officer at the time, could have concluded that the motorist had
operated the vehicle while under the influence, such reasonable grounds are established.
Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa. Cmwlth. 201, 363
A.2d 870 (1976). The officer had ample reasonable grounds in this matter.
Once again, clearly ample reasonable grounds existed for the police officer to believe that
the motorist operated the vehicle while under the influence of alcohol. Officer Staley testified
that after he stopped the vehicle that the petitioner was driving, he detected an odor of an
alcoholic beverage emanating from the petitioner, that the petitioner swayed, that the petitioner
had bloodshot and glassy eyes, that the petitioner fumbled for his documents, that the petitioner
failed the requested field sobriety tests, and that the petitioner admitted that he had been drinking.
REFUSAL
The petitioner may argue that the petitioner's actions did not constitute a refused but that
the petitioner was merely trying to clarify his rights citing cases such as Mashuda v. Department
of Transportation, Bureau of Driver Licensing, 701 A.2d 301 (Pa. Cmwlth. 1997) and
McCloskey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 1159 (pa.
Cmwlth. 1999).
4
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The officer testified that he read the DL-26 word-for-word to the petitioner, that he
provided the petitioner with the form to read and that he explained the DL-26 to the petitioner.
This took about 20 minutes. The petitioner never agreed to submit to the test. The petitioner
rather than agreeing to submit to the test, kept on asking questions and asking for an attorney.
Finally, the officer asked him ifhe would submit to the test and the petitioner replied: "NO."
The law is well settled that any response from a driver that is substantially short of an
unqualified, unequivocal assent to submit to a chemical test constitutes a refusal, subjecting the
driver to the one-year suspension mandated by 75 Pa.C.S. S 1547 as a consequence of such
refusal. Department of Transportation v. Renwick, 669 A.2d 934 (Pa. 1996); Finney v.
Department of Transportation, Bureau of Driver Licensing, 721 A.2d 420 (Pa. Cmwlth. 1998).
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 this case, the petitioner never agreed to submit to the requested breath test. In fact, the
petitioner verbally indicated by a "NO" that he was not going to submit to the requested chemical
test. Clearly, the petitioner refused to submit to the requested chemical test.
Additionally, the petitioner states that the petitioner had not been observed for the 20
minutes as required by the breath test regulations as found as 67 Pa. Code S 77.24 and as a result
there was no refusal.
The Department's regulations require a person to be observed for 20 minutes prior to the
initial administration of the alcohol breath test. 67 Pa. Code S 77.24. In this case, the breath test
was never administered to the petitioner. The petitioner's refused to submit to the requested
breath test, therefore, the 20 minute waiting period was irrelevant.
KNOWING AND CONSCIOUS REFUSAL
The motorist may argue that he did not refuse to take the test because he was physically
incapable of making a knowing and conscious refusal or that the refusal of the test was not
knowing and conscious. In either case, the burden of proof is upon the petitioner to establish the
defense. Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242,
555 A.2d 873 (1989).
If the motorist argues that his refusal was because he was physically incapable of
performing the requested chemical test, the driver must establish that fact by competent,
unequivocal medical evidence. Bridges v. Department of Transportation, Bureau of Driver
Licensing, 752 A.2d 456 (Pa. Cmwlth. 2000); Department of Transportation, Bureau of Driver
Licensing v. Wilhelm, 626 A.2d 660 (pa. Cmwlth. 1993). Expert testimony is required except
where the driver's inability to perform the test is obvious to a layperson. Carlin v. Department
of Transportation, Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999)(en bane),
5
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appeal denied, 759 A.2d 924 (Pa. 2000).
Additionally, when the physical inability is based upon a medical condition, the driver must
also notifY the test administrator of the medical condition so that the test administrator had the
opportunity to offer another type of chemical test. Landsberger v. Department of
Transportation, Bureau of Driver Licensing, 717 A.2d 1121 (Pa. Cmwlth 1998); Hatalski v.
Department of Transportation, Bureau of Driver Licensing, 666 A.2d 386 (Pa. Cmwlth. 1995);
Larkin v. Commonwealth, 53 I A.2d 844 (Pa. CmwIth. 1987).
In this case, the Department does not anticipate that the petitioner will be able to produce
any competent medical evidence that either a hearing deficiency or Meniere's disease prevented
the petitioner from providing sufficient breath as required by the breath test instrument.
Furthennore, the petitioner merely told the officer that he had Meniere's disease without any
further explanation. The petitioner did not tell the officer that he could not hear. Therefore, any
defense relying on a supposed medical condition which rendered the petitioner medically
incapable of performing the test should fail because the petitioner did not properly inform the
officer of the same.
If the motorist argues that the he was physically incapable of making a knowing and
conscious refusal, then the motorist must establish that fact by competent, unequivocal medical
evidence. Wright v. Department of Transportation, Bureau of Driver Licensing, 788 A.2d 443
(Pa. Cmwlth. 2001), appeal denied, _ Pa. _, _ A.2d _ (2002); Department of Transportation,
Bureau ofTrafJic Safety v. Holsten, 150 Pa. Cmwlth. 1,615 A.2d 113 (1992); Zubic v.
Department of Transportation, Bureau of TrafJic Safety, 93 Pa. Cmwlth. 221, 500 A.2d 1288
(1985). Only when the driver's physical incapacity is obviously incapactating or the injuries
debilitating effect so obvious will the driver be excused from presenting competence medical
evidence. McQuaide v. Department of Transportation, Bureau of Driver Licensing, 647 A.2d
299 (Pa. CwmIth. 1994);Department of Transportation, Bureau of Driver Licensing v.
GrijJith, 541 A.2d 66 (Pa. CmwIth. 1988); Department of Transportation, Bureau ofTrafJic
Safety v. Day, 500 A.2d 2 I 4 (Pa. CmwIth. 1985).
In this case, there was no obvious physical condition or injury which rendered the motorist
incapable of making a knowing and conscious refusal. Therefore, the defense must fail.
Furthennore, motorist must present competent medical evidence by a medical expert who
must be able to state within a reasonable degree of medical certainty that the motorist's medical
condition or injury degraded the motorist's cognitive abilities to the extent that the motorist was
incapable of making a knowing and conscious decision regarding the chemical test. DiGiovanni
v. Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1125 (Pa. Cmwlth.
1998); Barbour v. Department of Transportation, Bureau of Driver Licensing, 701 A.2d 990
(pa. Cmwlth. 1997).
In this case, the petitioner presented no competent medical evidence proving any alleged
incapacity to make a knowing and conscious refusal. He did, however, presented the testimony
of a Mr. Donald Edward Richardson. Mr. Richardson is a speech language pathologist. Dep.
6
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pages 5, lines 14 - 17. Mr. Richardson is not a medical doctor nor does he make medical
assessments. Dep. page 7, lines 18 - 21. The petitioner did not establish by competent medical
evidence that he was incapable of performing the test or incapable of making a knowing and
conscious refusal.
Mr. Richardson, a speech language pathologist, testified that he saw the petitioner so as to
maximize the benefit of the petitioner's hearing aid with the benefit of speech reading. Dep.
page 12, lines 13 - 15; page 15, lines 18 - 22; page 26, lines 12 - 13. Mr. Richardson is
competent to testifY only to those matters related to training the petitioner in speech reading.
Mr. Richardson acknowledged that the petitioner has a hearing problem and the hearing aid
is designed to assist the petitioner in his hearing. Dep. pages 28, line 24 - page 29, lines 1 - 2.
Mr. Richardson acknowledged that the petitioner can hear without the hearing aid. Dep. pages
29, lines 18 - 24 - page 30, lines 1 - 14.
The petitioner in his brief argues that Mr. Richardson indicated to a reasonable degree of
certainty that the petitioner would have difficulty in understanding any explanation by a police
officer regarding questions he had relative to written text.
Mr. Richardson, however, indicated that the very conditions surrounding the request for
chemical test, reading of the DL-26 and explanation of the DL-26 in a well-lit area with few
distractions while being in custody of a police officer who was reading and speaking to him in
plain view only a few feet away face to face increases a person's ability of speech reading. Dep.
pages 32, lines 12 - 24 - page 34, lines 1-24 - page 35, lines 1 - 3. Moreover, Mr. Richardson
acknowledged that the petitioner can hear without the hearing aid. Dep. pages 29, lines 18 - 24 -
page 30, lines 1 - 14.
Mr. Richardson testified that he did not know how loud the officer was speaking to the
petitioner and that he did not know any of the conditions that existed at the time of the refusal.l
l.
Dep. page 44, lines I - 12.
Q. Did you hear the 20 minute conversation between the police officer and Mr. Doyle?
A. No.
Q. SO you don't know how loud the police officer was talking to him, do you?
A. Correct.
Q. You don't know what level he was, do you?
A. Correct.
Dep. page 45, lines 9 - 22. .
Q. Other than the testing that you have done you don't really know what type off actors he was under m
the evening in question, do you?
A. Correct.
Mr. Hershey: Objection to the form of the question, I'm not sure what factors mean.
Q. You don't know the hearing levels, the placement of the bodies, the level of intoxication, you don't
know any of that, do yon?
A. Correct.
7
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Dep. pages 43, lines 12 - 24 - page 44, lines I - 24 - page 45, lines I - 22. Mr. Richardson's lack
of first hand information prevents him from rendering an opinion to a reasonable certainty. See
Landsberger v. Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1121,
1124-1125, (Pa. Cmwlth. 1998).
In Landsberger, the petitioner attempted to present a knowing and conscious defense
based upon his deafness and presented the testimony of an audiologist. Landsberger v.
Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1121, 1124-1125, (Pa.
Cmwlth. 1998). The defense failed in that case because the licensee failed to inform the officer
of the condition. Additionally in Landsberber, the licensee argued that he met his burden with
the testimony of the audiologist. Id. As in this case, the audiologist testified that he did not have
first hand knowledge of the factors involved in the interaction between the licensee and the
officer. Because the audiologist did not have first hand knowledge of the exact factors of the
interaction between the officer and motorist, the court ruled that the testimony did not provide
the substantial evidence needed to meet the licensee's burden of proof. 2 Id.
As in Landsberger, the audiologist in this case testified that he did not know the exact
factors in the communication between the petitioner and the police officer. Because he does not
have first hand knowledge, his testimony fails to meet the petitioner's burden of proof in an
attempt to prove that the petitioner was unable to make a knowing and conscious refusal.
Even if a knowing and conscious defense is presented, the defense fails when the
incapacity is caused, in whole or in part, by the motorist's voluntary consumption of alcohol or
drugs. Hinkel v. Department of Transportation, Bureau of Driver Licensing, 715 A.2d 556
(Pa. Cmwlth. 1988); Plotts v. Department of Transportation, Bureau of Driver Licensing, 660
A.2d 133 (pa. Cmwlth. 1995) (en banc); Department of Transportation, Bureau of Driver
Licensing v. Holsten, 150 Pa. Cmwlth. 1,615 A.2d 113 (1992); Department of Transportation,
Bureau of Driver Licensing v.Moss, 146 Pa. Cmwlth. 330, 605 A.2d 1279 (1992), appeal
denied, 532 Pa. 648, 614 A.2d 1144 (1992). Of course, voluntary intoxication is no defense.
Department of Transportation, Bureau of Driver Licensingv. Monsay, 142 Pa. Cmwlth. 163,
596 A.2d 1269 (1991).
Mr. Richardson testified that he could not rule out alcohol as a factor in Mr. Doyle's
2.
Landsberger v. Department of Transportation, Bureau of Driver Licensing, 717 A.2d 1121 at 1124-1125:
Q. Mr. Peterson, you really don't know exactly what kind off actors Mr. Landsberger was operating under
on the evening in question. Other than the testing you have done two months after the event, you really
don't know what type of factors he was under on the evening in question, do you?
A. No. . ... ,.
Q. SO can you really state with certamty that on the evenmg m question, on January 27 - and I am not ,
talking about possibilities, I am talking about with certainty - on January 27" whether Mr. Landsberger
could hear and understand what the trooper was asking him to do?
A. I could not due to unawareness at the level which the trooper was speaking and any other conditions
that were involved.
8
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ability to make a knowing and conscious refusal. 3
3.
Deposition page 41, lines 6 - 24 -page 42, lines 1-16:
Q. Once again, assuming that the facts are going to come out as Mr. Doyle was swaying, when the officer
encounter Mr. Doyle, Mr. Doyle was swayjng, smelling of alcohol, his eyes were blood shot and glassy,
he fumbled with his documents, and he admitted drinking, and he failed field sobriety test, knowing
that are you able to rule out consumption of alcohol as a factor in Mr. Doyle's conduct during the
incident?
A. No.
Q. SO, it would be fair to state that you cannot rule out alcohol as a factor in Mr. Doyle's refusal to a
chemical test?
Mr. Hershey: Objection to the form of the question, assumes facts.
Q. Mr. Richardson, would it be fair to say that assuming those facts that I just told you about how the
officer encountered Mr. Doyle you cannot rule out alcohol as playjng a factor in Mr. Doyle's behavior
during the incident, correct?
A. Correct.
Q. Once again, assuming those facts you cannot rule out alcohol as a factor in Mr. Doyle's choice whether
to take or to refusal the requested breath test, correct?
A. Correct.
Q. You cannot rule out as a factor, assuming those facts you cannot rule out alcohol as a factor in the
communication between Mr. Doyle and the police officer, correct?
A. Correct.
Deposition page 46, lines 3 - 8:
Q. In your opinion to a degree of certainty, a medical certainty can you rule out alcohol as not playing a
factor in Mr. Doyle's ability to make a knowing and conscious refusal?
A. No.
See the following in Hinkel v. Department of Transportation, Bureau of Driver Licensing, 715 A.2d 556 (Fa.
Cwm1th. 1998):
Q. Can you say, with a degree of reasonable medical certainty, that any incapacity that this individual had
in making a knowing and conscious refusal was entirely due to his depression and not at least partially
due to his alcohol consumption?
A. No one can say that. However, based on July, I would have to say the depression alone, in my opinion,
based on my findings, would have affected his mental capacity enough to make an informed decision
about a blood -alcohol test invalid.
Q. Can you say that the alcohol played no role in his inability back in April, though?
A. I can't say it played no role. But I can tell you that in the visit in July I would not have accepted an
advanced directive from the patient. ...I still think that depression would have, alone, affected his
mental capacity.
The incapacity defense failed in Hinkel because the testimony by the doctor could not rule out the
possibility that the licensee's incapacity may not have been due in part to his alcohol consumption. Hinkel v.
Department of Transportation, Bureau of Driver Licensing. See also Appeal of Cravener, 135 Pa. Commw. Ct.
480,580 A.2d 1196 (1990) (defense to the license suspension failed based upon licensee's inability to make a
knowing and conscious refusal because doctor's opinion that licensee's behavior resulted from a combination of
alcohol consumption and head injuries.). The court in Cravener held that if a licensee's self-inflicted condition due
to his voluntary consumption of alcohol is a factor which contributes to rendering him mentally incapable of making
a knowing and conscious refusal to submit to chemical testing, the defense must fail. See also Department of
Transportation, Bureau of Driver Lkensingv. Monsay, 142 Pa. Commw. Ct. 163,596 A.2d 1269 (1991) (defense
failed because doctor testified that alcohol could have been a contributing factor to licensee's behavior.).
9
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Moreover, not only could Mr. Richardson not rule out that alcohol did not playa factor in
Mr. Doyle's ability to make a knowing and conscious refusal, Mr. Richardson testified that
alcohol consumption impairs a person's ability to speech read. The effects of alcohol are well
established, including the fact that alcohol impairs a person's vision and acts as a central nervous
system depressant.4 Mr. Richardson testified that a person's ability to speech read would be
decreased if the person's vision was impaired. Dep. pages 38, lines 13 - 24 - page 39, lines I -
10. Mr. Richardson testified that a person's ability to speech read would be decreased if the
person's mental facilities were impaired.5 Dep. pages 40, lines 13 - 24 - page 41, lines I - 2.
Mr. Richardson testified that he could not rule out alcohol as a factor in the communication
between the petitioner and the police officer. Dep. page 42, lines 11 - 16.
Once again, a knowing and conscious defense fails when the incapacity is caused, in
whole or in part, by the motorist's voluntary consumption of alcohol or drugs. Hinkel v.
4. See Commw. v. Leninsky, 519 A.2d 984 (pa. Super. 1986) at footnote 6 wherein the court took judicial notice of
the following symptoms or signs of alcohol intoxication: I) odor of breath; 2) flushed appearance; 3) lack of
muscular coordination; 4) speech difficulties; 5) disorderly or unusual conduct; 6) mental or visual difficulties; 7)
sleepiness; 8) dizziness; and 9) nausea. See also Pennsylvania Driving Under the Influence Association article on
Alcohol and the Human Body available on their web site at www.padui.org.
5.
Deposition page 38, lines 19 - 24 page 39, lines I - 24 - page 40, lines I - 2:
Q. Assuming that alcohol consumption effects visual acuity would cognition, the spoken communications
be decreased?
A. I guess comprehension of ideas could be effected relative to speech reading.
Q. Because the person cannot see as well, correct?
A. Correct, right.
Q. Now, cognition of spoken communication would especially decrease if a hearing impaired person who
relies on speech reading and/or lip reading to enhance cognition?
A. Correct.
Q. And that was negatively effected by the, under the influence of alcohol, correct?
A. Correct
Q. Now, I want you to - also alcohol effects the. central nervous system, correct?
A. Correct.
Q. Alcohol is a depressant, correct?
A. Correct.
Q. Alcohol impairs a persons' ability to recall past eveilts, correct?
A. Correct.
Q. Is it possible that because decreased mental facility, as a result of alcohol intoxication, a person's
ability to speech read would be deceased? Correct?
A. Correct.
Deposition page 53, lines 9 - 22:
Q. by Hershey: You were presented with evidence that Mr. Doyle had been stopped for a headlight
violation as opposed to some other reason.
A. Correct.
Q. An further that he had experienced a Meniere's attack and further that he was administered field
sobriety tests at the time when he had a low back problem.
A. Correct.
Q. Under those circumstances would your testimony be, would your opinion be that Mr. Doyle had
decreased his communication skill because he was under the influence of alcohol
A. Correct.
10
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Department of Transportation, Bureau of Driver Licensing, 715 A.2d 556 (Pa. Cmwlth. 1988);
See also Dailey v. Department of Transportation, Bureau of Driver Licensing, 722 A.2d 772
(Pa. Cmwlth. 1999), Department of Transportation, Bureau of Traffic Safety v. Andrews, 505
A.2d412 (pa. Cmwlth 1986).
Additionally, Mr. Richardson, testified that Mr. Doyle's decision to not wear his hearing
aid would not be compliant with Mr. Doyle's treatment plan. Dep. page 47, lines 20 - 23; page
48, lines 12 - 15. By declining the police officer's offer to the petitioner for the petitioner to put
in his hearing aid the petitioner negatively effected his cognition of spoken communication. Dep.
pages 48, line 22 - 24 - page 49, line 1 - 3. Mr. Doyle impaired his ability to hear and impaired
his cognition of any communication because he did not put in his hearing aid. Dep. page 50,
lines 11 - 15.
The petitioner should not now be able to rely on his hearing impairment when he himself
could have mitigated his hearing impainnent by inserting his hearing aid. Just as when a
knowing and conscious defense fails based upon the motorist's voluntary decision to drink so
should the petitioner's knowing and conscious defense fail based upon the motorist's decision to
not wear his hearing aid. See Commonwealth of Pennsylvania, Bureau of Driver Licensing v.
Andrews, 95 Pa. Cmwlth. 338, 505 A.2d 412 (1986).
CONFUSION OVER MIRANDA RIGHTS
A motorist may also argue he was unable to make a knowing and conscious refusal
because he was confused over his Miranda rights. Again, once the Commonwealth meets its
prima facie burden, it is the motorist's burden to prove that because of his confusion over his
Miranda rights he was not capable of making a knowing and conscious refusal. Department of
Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).
Whenever a motorist is arrested for DUI and requested to submit to a chemical test, he
must be provided with the 0 'Connell warning. Department of Transportation, Bureau of
Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). Any defense based upon the
motorist's confusion of the Miranda and O'Connell warnings is a type of knowing and conscious
defense and the burden of proof is upon the petitioner. Department of Transportation, Bureau
of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994).
A proper 0 'Connell warning must inform the motorist that his operating privilege will be
suspended for one year ifhe refuses a chemical test and that his Miranda rights do not apply to
chemical testing. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa.
241,684 A.2d 539 (1996); Department of Transportation, Bureau of Driver Licensing v.
Ingram, 538 Pa. 236, 648 A.2d 285 (1994).
Officer Staley testified that he read, word-for-word, to the petitioner from the
Department's DL-26 form. Department's exhibit 1. The portion of the DL-26 form that the
11
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officer read to the motorist reads as follows:
I. Please be advised that you are now under arrest for driving under the influence
of alcohol or a controlled substance pursuant to section 3731 of the Vehicle
Code.
2. I arn requesting that you submit to a chemical test ofbloodJurine.
3. It is my duty, as a police officer, to inform you that if you refuse to submit to
the chemical test your operating privilege will be suspended for a period of
one year.
4. a) The constitutional rights you have as a criminal defendant, commonly
known as the Miranda Rights, including the right to speak with a lawyer and
the right to remain silent, apply only to criminal prosecutions and do not apply
to the chemical testing procedure under Pennsylvania's hnplied Consent Law,
which is a civil, not a criminal proceeding.
b ) You have no right to speak to a lawyer, or anyone else, before taking the
chemical test requested by the police officer nor do you have a right to remain
silent when asked by the police officer to submit to the chemical test. Unless
you agree to submit to the test requested by the police officer your conduct
will be deemed to be refusal and your operating privilege will be suspended
for one year.
c) Your refusal to submit to chemical testing under the hnplied Consent Law
may be introduced into evidence in a criminal prosecution for driving while
under the influence of alcohol or a controlled substance.
See Department's exhibit 1.
The language on the DL-26 form has been held to be an acceptable warning. Department
of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994);
Crowley v. Department of Transportation, Bureau of Driver Licensing, 540 Pa. 21, 655 A.2d
491 (1994), aft" g per curiarn sub nom., Department of Transportation, Bureau of Driver
Licensing v. Crowley, 160 Pa. Cmwlth. 324, 634 A.2d 826 (1993). There is no requirement that
the form be read to the motorist, merely that the motorist was provided with the proper warnings.
Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539
(1996); Department of Transportation, Bureau of Driver Licensing v. Ingram, 538 Pa. 236,
648 A.2d 285 (1994).
The petitioner was clearly provided the proper O'Connell warning. Once the police
officer has provided the 0 'Connell warning to the motorist, then the officer has done all that is
legally required to ensure that the motorist has been fully advised of the consequences of refusing
to submit to the chemical test. Department of Transportation, Bureau of Driver Licensing v.
Scott, 546 Pa. 241, 684 A.2d 539 (1996). Once the motorist has been properly advised of the
o 'Connell warning, a refusal to submit to a chemical test will not be excused as unknowing on
the basis of the motorist's subjective belief regarding the application of Miranda and 0 'Connell.
Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d
539 (1996).
12
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.
As stated earlier, after a police officer has requested a motorist to submit to a chemical
test, there is only one acceptable response; that is, an unqualified, unequivocal assent to submit to
the requested test. Department of Transportation v. Renwick, 543 Pa. 122,669 A.2d 934
(1996). A police officer is not required to explain everything which may confuse a motorist. See
Keenan v. Department of Transportation, Bureau of Driver Licensing, 657 A.2d 134 (pa.
Cmwlth. 1995).
The DL-26 clearly states that "",if you refuse to submit to the chemical test your
operating privilege will be suspended for a period of one year" and "Unless you agree to submit
to the test requested by the police officer your conduct will be deemed a refusal your operating
privilege will be suspended for one year." See Department's exhibit 1. The motorist was clearly
warned of the consequences of refusing the requested chemical test.
In this case, the police officer did all he was required to do. As stated earlier, once the
police officer has provided the 0 'Connell warning to the motorist, then the officer has done all
that is legally required to ensure that the motorist has been fully advised of the consequences of
refusing to submit to the chemical test. Department of Transportation, Bureau of Driver
Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). Once the motorist has been properly
advised of the O'Connell warning, a refusal to submit to a chemical test will not be excused as
unknowing on the basis of the motorist's sjlbjective belief regarding the application of Miranda
and O'Connell. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa.
241,684 A.2d 539 (1996); Hirsch v. Department of Transportation, Bureau of Driver
Licensing, 702 A.2d 375 (pa. Cmwlth. 1997).
Based on the aforementioned and the testimony, I respectfully request that the court dismiss
the motorist's appeal and reinstate the suspension.
Sincerely,
! ~L
George ~ Kabusk
Assistant Counsel
GK/gk
cc: David E. Hershey, Esquire, 1 South Baltimore Street, Dillsburg, PA 17019
Francis P. Bach, Assistant Counsel in Charge, Traffic Safety Section
13
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IN TilE COURT OF COMl\:lON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA
JAMES DOYLE, III.
CIVIL ACTION - LAW
LICENSE SUSPENSION
APPEAL
VS.
NO: 01-6207
COMMONWEALTH DEPARTMENT OF
TRANSPORTATION BUREAU OF DRIVER
LICENSING
CIVIL TERM
..................................................................................................................
..................................................................................................................
TO TilE HONORABLE J. WESLEY OLER, JR., JUDGE OF SAID COURT:
MEMORANDUM
These are Petitioner's proposed findings offact and conclusions oflaw:
I. PROPOSED FINDINGS OF FACT
1. Petitioner, James Doyle, III, (hereinafter Petitioner), was placed under arrest by
Officer Brian Staley of the New Cumberland Borough Police Department on August 10, 2001.
2. Petitioner has a pre-existing medical condition related to hearing loss and
menieres disease.
3. Petitioner did not have his hearing aid in during field sobriety testing by Officer
Staley.
4. Petitioner had difficulty understanding Officer Staley's verbal instructions during
the walk and turn and one-leg stand field sobriety test.
5. Petitioner was transported to the West Shore Booking Center by Officer Staley
and arrived at the Booking Center at 0157 hours.
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6. Prior to Petitioner's arrival at the Booking Center, there was no discussion of
Pennsylvania's implied consent provisions nor was Petitioner provided with his DL-26 warnings.
7. Upon arrival at the Booking Center, Petitioner had his handcuffs removed, had his
personal effects inventoried and was asked a few preliminary biographical questions, all of which
took approximately 10 minutes.
8. Petitioner was read PennDOT Form DL-26 while he was seated and Officer Staley
was standing during which time Petitioner did not have his hearing aid in.
9. Petitioner was not advised that he could put his hearing aid in until such time as
he arrived at the Booking Center.
10. Petitioner, while reading PennDOT Form DL-26 had questions regarding the
rights outlined in Paragraphs 4(a) and 4(c) of that Form. Petitioner had some difficulty in
understanding the warnings outlined in Paragraph 4 ofPennDOT Form DL-26.
11. Petitioner had indicated that he wanted a lawyer.
12. Petitioner had questions regarding the refusal being entered into evidence against
him in a criminal trial.
13. The statement that Officer Staley attributed as being a refusal of chemical testing
was not recorded contemporaneously with the Officer's determination that a refusal had
occurred.
14. Petitioner's signature does not appear on PennDOT Form DL-26 acknowledging
that he was advised of his warnings.
15. Petitioner was advised upon arrival of the Booking Center that he was being audio
and videotaped.
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16. There is a audio and videotape of Petitioner, however, it does not include any of
the relevant exchanges between Officer Staley and the Petitioner regarding PennDOT Form DL-
26. No time of warning or refusal is recorded on PennDOT Form DL-26 marked as
Commonwealth Exhibit 1.
17. Officer Staley has no recollection of whether or not he requested Petitioner to
sigu-off on the DL-26 warnings. The time that Officer Staley recorded a refusal was
approximately 0222 hours.
18. Officer Staley does not recall the exact words that Petitioner used which were
interpreted as a refusal of chemical testing. Officer Staley gave testimony under oath at a
previous proceeding which he acknowledged in the case at bar as quoting Petitioner as saying "I
don't think the light being out was a reason to be arrested."
19. Petitioner advised Agent~"h,"t11hat he did not refuse a chemical test.
20. The actual time spent discussing the DL-26 Form was approximately 10 to 15
minutes after Petitioner was done with the preliminary Booking Center intake procedure.
21. As a factual matter, Petitioner did not refuse a chemical test of breath.
22. Factors that would interfere with Petitioner's ability to communicate with another
person include the presence of background noise, the relationship between Petitioner and the
party Petitioner is attempting to communicate with, and whether or not Petitioner has his hearing
aid in.
23. At the time of Petitioner' s processing at the Lower Allen Township Booking
Center, there was background noise present. Petitioner was not at eye-level with the Officer
Staley and Petitioner did not have his hearing aid in.
3
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II. CONCLUSIONS OF LAW
A.. PennDOT regulations regarding pre-test procedures for breath test equipment at
67 P A Code Section 77.1 et seq require an observation period of at least 20 minutes before an
actual test sarnple is taken.
B. Driver's questions to Officer Staley for 10 to 15 minutes about implied consent
form were not indicative of a refusal to submit to blood alcohol test but were merely an attempt
to clarify the motorist's rights. See McDonald v. Commonwealth Department of Transportation.
Bureau of Driver Licensing-
Pa. Commonwealth _ 708, A.2d 154 (1998). See also
Frengel v. Commonwealth Department of Transportation. Bureau of Driver Licensing- _ Pa.
Commonwealth _ 666 A.2d 785 (1995) holding that driver licenses could not be suspended for
failure to submit to chemical test, where driver's inquiries about his right to an attorney before
taking tests indicated confusion rather than wilful and deliberate refusal to submit to tests.
C. If the court [mds that the department has made out it's case including that
petitioner refused to submit to a chemical test, there is substantial evidence to support this court's
determination that refusal of hearing impaired motorist was not product of knowing and
conscious decision based upon competent medical evidence. See Commonwealth v. Gaertner,
_Pa. Commonwealth_, 589 A.2d272 (1991).
III. ARGUMENT
A. Our appellate courts have consistently held that even if the police provide a
sufficient O'Connell warning, a license suspension imposed on a licensee for refusing to submit
to chemical testing, must be reversed, if the fact finder determines that the circumstances
4
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surrounding the police request for chemical testing are confusing and prevent a licensee from
understanding the warning. See Frengel v. Commonwealth Department of Transportation.
Bureau of Driver Licensing, supra at A.2d 785. Moreover, our appellate courts have held that 10
to 15 minutes of questioning concerning a licensee's rights when confused does not constitute a
refusal as a matter oflaw. See McDonald supra A.2d at Page 154. Ifthe trial court makes a
finding that Petitioner's testimony is credible regarding his confusion, and further that Petitioner
did not refuse to take a test, these credibility findings will not be disturbed on appeal. See
McDonald supra at A.2d 154.
In support of Petitioner's argument that the department has not established that
Petitioner refused, as a matter of fact, the videotape in the Commonwealth's care, custody, and
control, does not document the exchange between Petitioner and Officer Staley, the DL-26 Form
does not contain Petitioner's signature confirming that Petitioner was advised of his warnings,
the alleged statement made by Petitioner that Officer Staley has treated as a refusal was not
recorded contemporaneously with the event and does not appear in Officer Staley's field notes
and Officer Staley has confirmed during cross-examination that Petitioner had questions about
both his right to an attorney and the issue of whether a refusal to submit to chemical testing may
be introduced into evidence in a criminal proceeding.
The time-line for this incident also suggests that Officer Staley's conclusion that
the DL-26 Form was reviewed for a period of20 to 25 minutes is in error. Specifically, there
was competent uncontradicted testimony that Petitioner had to have his handcuffs removed, had
to have his personal belonging inventoried and was asked some preliminary questions before he
was seated next to the breathalyzer device to listen to Officer Staley's warnings. This
5
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preliminary process took approximately 10 minutes, thereby reducing the time Petitioner had
with his DL-26 Form to between 10 and 15 m0utes. Moreover, there was competent testimony
that Petitioner stated to Booking Agenlfi~'trt~ho was the intoxilyzer operator that he did not
refuse immediately after Officer Staley said he was deeming Petitioner's conduct at refusal. The
Commonwealth Court will not overturn unchallenged findings of fact based upon credible
testimony of the licensee. See McDonald supra at A.2d 154. Moreover, the transcript of Officer
Staley's direct and cross-examination reveals inconsistencies in his testimony regarding what
Petitioner actually said to him during the event in question. In the event that the department cites
McCloskey v. Commonwealth Department of Transportation. Bureau of Driver Licensing, _
Pa. Commonwealth _, 722 A.2d 1159 (1999), the McCloskey decision is distinguishable on its
facts from the present case. Specifically, the trial court found in McCloskey that although the
licensee asked a few questions about Form DL-26 the licensee continued to press the police
officer for more time to make a decision. See McCloskey supra at A.2d 1159. Moreover, the
trial court, after reviewing a videotape of the exchange in McCloskey, supra concluded that the
licensee's conduct belied his claim that he was confused by the implied consent warnings and
that he was more likely than not stalling for time. See McCloskey supra at A.2d 1159.
For the above-mentioned reasons, Petitioner believes that the McCloskey decision
is distinguishable.
Although the implied consent provisions do not outline a time within which a
motorist will be afforded an opportunity to submit to a chemical test, at no time did Officer
Staley advise Petitioner that there would be any time limitations after which the conduct would
be considered a refusal. Moreover, PennDOT regulations for breath test procedures at 67 Pa.
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Codes 77 0 I et seq require as a matter of law that the motorist be observed for 20 consecutive
minutes before a test sample can be obtained. Accordingly, the 10 to IS minutes involved with
Petitioner questioning his rights on DOT Form DL-26 did nothing to impede the efficient
administration of a breath test. In the event that the department cites the Todd decision in
response to this argument, Petitioner argues that Todd is distinguishable on its facts as Todd was
based upon a motorist's failure to provide necessary breath samples after being afforded three
opportunities to blow into a breath test device. See Todd v. Commonwealth Department of
Transportation. Bureau of Driver Licensing, _ Pa. _ 723 A.2d 655, 656, 659. In dicta Todd
stated that "While clearly a motorist must be allowed a reasonable and sufficient opportunity to
complete chemical alcohol testing, a refusal to test need not be manifested overtly or verbally".
See Todd vs. Commonwealth Department of Transportation. Bureau of Driver Licensing, supra
at A.2d 658. Petitioner argues herein that he has not been provided a reasonable and sufficient
opportunity to complete alcohol testing.
With respect to the third issue, in the event that the court finds that the Petitioner
refuses a matter of fact, which is specifically denied, the court may find that the Petitioner was
unable to knowingly and volumarily assent to chemical testing due to a medical condition
involving his lack of hearing capacity which was substantiated by competent medical evidence
provided through the Deposition for use at trial by Doctor Donald Richards. In Commonwealth
v. Gaertner, the Commonwealth Court held that where a hearing impaired motorist had difficulty
understanding several words contained in a chemical test warnings form which was substantiated
by expert testimony, substantial evidence supported the trial court's determination that the refusal
of the hearing impaired motorist was not the product of a knowing and conscious decision. See
7
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Commonwealth v. Gaertner, supra at A.2d 274. Additionally, in Gaertner, the Commonwealth
Court noted that "perhaps the most compelling reason in this case, which leads us to affIrm the
trial court, bears on our standard of review. Whether one has made a knowing and intelligent
refusal to submit to chemical testing is a question offact for the trial court." See Gaertner, supra
at A.2d 275.
IV. CONCLUSION
For the above-mentioned reasons, Petitioner requests This Honorable Court to
adopt a proposed findings of fact and conclusions of law and find in the first instance that the
Petitioner did not refuse chemical testing both as a matter of fact and as a matter oflaw.
Respectfully submitted,
WILEY, LENOX, COLGAN & MARZZACCO, P.C.
Date: June 5, 2002
By:
D,L~;re
Supreme Court ID No. 43092
1 South Baltimore Street
Dillsburg, PA 17019
(717) 432-9666
8
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IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
JAMES DOYLE, III.
CIVIL ACTION - LAW
LICENSE SUSPENSION
APPEAL
VS.
NO: 01-6207
COMMONWEALTH DEPARTMENT OF
TRANSPORTATION BUREAU OF DRIVER
LICENSING
CIVIL TERM
..................................................................................................................
..................................................................................................................
CERTIFICATE OF SERVICE
On the 5th day of June, 2002, I certify that a copy of the foregoing petition was served
upon the following attorney for the Commonwealth of Pennsylvania by Hand-Delivery on
Thursday, June 6, 2002, at the address as follows:
Pennsylvania Department of Transportation
George Kabusk, Esquire
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, P A 17104-2516
Date: June 5, 2002
Respectfully submitted,
:~LEY'LE~CO'PC
Dav' . Hershey, Esquire
Supreme Court 10 No. 43092
1 South Baltimore Street
Dillsburg, PA 17019
(717) 432-9666
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JAMES DOYLE, III,
Appellant/Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
COMMONWEALTH OF
PENNSYL VANIA,
DEPARTMENT OF
TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Appellee/Respondent
NO. 01-6027 CIVIL TERM
ORDER OF COURT
AND NOW, this 10th day of June, 2002, upon consideration of
Appellant/Petitioner's License Suspension Appeal, and following a hearing held on
March 21, 2002, and June 6, 2002, the appeal is denied and the action of
Appellee/Respondent Commonwealth of Pennsylvania, Department of Transportation, in
suspending the driving privileges of Appellant/Petitioner by notice dated September 21,
2001, is affirmed.
BY THE COURT,
/ David E. Hershey, Esq.
1 South Baltimore Street
Dillsburg, PA 17019
Attorney for Appellant/Petitioner
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40rge Kabusk, Esq.
Assistant Counsel
Department of Transportation
Motor Vehicle & Traffic Safety Section
3rd Floor, Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
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JAMES DOYLE, III,
Appellant/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,
Appellee/Respondent
01-6027 CIVIL TERM
ORDER OF COURT
AND NOW, this 6th day of June, 2002, upon
consideration of Appellant/Petitioner's License Suspension Appeal,
and following a hearing held on March 21, 2002, and June 6, 2002,
the record is declared closed and the matter is taken under
advisement.
By the Court,
~avid E. Hershey, Esquire
1 South Baltimore Street
Dillsburg, PA 17019
For the Appellant/Petitioner
~eorge H. Kabusk, Esquire
Office of Chief Counsel
1101 South Front Street - 3rd Fl.
Harrisburg, PA 17104-2516
For the Appellee/Respondent
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