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Home My WebLink About01-6027JAMES DOYLE, III COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. LICENSE SUSPENSION APPEAL 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 ddving privileges are to be suspended on October 26, 2001, at 12:01 a.m. for a pedod 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: 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 dght 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 [}1547 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". Date: Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY Da,~J~-E--Het~'h ey, Esquire I.D. #43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 VERIFICATION I vedfy 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. §4904 relating to unswom falsification to authorities. Date: 8g/24/2881 12~21 2159727040 SELF ~ERVICE STORAGE PA~ 82 CQHHGHWEALTH OF PENNSYLYAH[~ DEPARTHENT OF TRANSPORTATION ~ureau of Driver Llcensino Hell Date: SEPTEHBER 21, 2001 JARE$ fl DOYLE SOUTH tALNUT DALLASTOWN PA ~73~ WZD ! DIESTbl$2q~q~34 DD~ PROCESSING DATE 09/~/2DD1 DRIVER LZCE#S£ t ~6528999 DATE OF BIRTH 11/~315444 ]Dear. HR, .{TDYL~; This is an 0~tola1 Notlom o~ the RueDenRtofl of your Dr/v/no Privilege as author/zed by Sect/on 15~7 of the PennsyZvmnAm Vehicle Code. As a ~esult of Your violation of ~ect~on of the Vehicle Code, CHEH~CAL TEST REFUSAL, on*0~/10/2001~ " Your drLvin~ Privilege 1~ SUSP~DED ~0~ YE~(S) e~fectlve 1Q/26/~001 It 12:01 WARNZNG~ Zf you are convicted of drlvtng while your license ts suspended/revoked the Penalties w11! be a NINIHUN of gO days Imprisonment AND a 1,000 f/ne AND your driving privilege w/ll be susPended/revoked for I' a HZNZHUR I year Per/od I CONPLYZNG WITH THIS SUSPENSZ~: You must return all current Pennsylvania drtverms ltcenses~ laarfler*s permits, temporary driver's licenses (camera cords) in your possession on or before ]O/Z&/2001, You m~Ly 3u~rehoer t-~j'~' 2--~ --~'~ ~'" ' '- '~ §-~ ~ 0 01~ for larller credit) however, you may not drive after these /toms are Surrendered, YOU NAY NOT RETAIN YOUR DRIVER"8 LICENSE FOR ZDENT/FZCATZON PURPOSES. However, you may apply for and obtain a photo identlftcation card at any Driver License Center for · cost of 9.00. You must present two (2) forms of proper Aden- t~fJcstlon (e.g., b/rth certificate, valid U.S. passport; marriage certJf~cete~ etc,) in order to Obtain your photo ~dentificstton card. You bt111 ~ot reGetve Gredlt to~mrd ae~Vtng &fly auePenalon u~tll tdo re~alve your 11~enae(m). Complete the followln~ steps to acknowledge this suspension. 09/24/200~ ~2~1 2~59727040 SELF' ,.~:RVIC~ STORAGE PAGE 03 01267&112919154 You have the rlBht to appeal this act/on to the Court of. Common Pleas (CJvJ! PLy/s/on) w/th/n 30 days of the mat1 date; SEPTEHBER 21, 2001, o¢ this letter. Z~ You ~11a an' &Poma1 In the County coopt; tho Coopt wL11 gLvo .YOU a tlmo- stamped caPriOled copy o~ the appeal. In order for your BP~OB! to bo valid, You must send this time-stamped certl- f/od CoDY of the appea! by certified me~l tog Pennsylvania De0artment oF Transportation Office of Chief CoUnae~ Third Floor, R~y~.~r~.rp~t. Office Center Harrisburg; PA 17104-2516 Remembar~ thLs is an OFPZCZAL NOTZCE OF SUSPENgZOH. You must return 811 current Pennsylvania driver XJcense products to PennDOT by 10/2&/200Z. Sincerely) Rebecca L. B~ckley; Director Bureau of Dr~ver Licensing [NFDRRAT~ON ?zOO a.m. to.9~O0 o.~ ZN STATE 1-800-952-4&00 TOD I# STATE OUT-OF-STATE 717-$9~-61~D TOD OUT-OF-STATE ~E~ S~TE ,ADDRESS ~odot.stSteopS,us 1-ffOO-2Ea-O&T& 717-$91-6191 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 thelU) day of October, 2001, at the address listed below: George Kabusk, Esquire PA Department of Transportation Riverfront Office Center, Third Floor 1101 South Front Street Harrisburg, PA 17104-2516 MANCKE WAGNER HERSHEY & TULLY JAMES DOYLE, III COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. LICENSE SUSPENSION APPEAL ORDER OF.__COURT AND NOW, this 2_~day of O4-~ , 2001 upon Petition of James Doyle, III, a hearing is set on the License Suspension Appeal for the ~/'~ day of ~--~-/'-r, Zf~¢,/' ~__~,3'at/~: z~~' , o clockz~_.m, in Courtroom Number / , Cumberland County Courtho~use, One Courthouse Square, Carlisle, Cumberland County, Pennsylvania, all proceedings to stay meanwhile. Notice of said headng shall be given by Petitioner's counsel to the Department of Transportation at least sixty (60) days pdor 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. Distribution: Prothonotary's Office George Kabusk, Esquire, PennDOT BY THE COURT: 1101 South Front Street, Harrisburg, PA 17104-2516 David E. Hershey, Esquire 2233 North Front Street, Harrisburg, PA 17110 JAMES DOYLE, III COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6027 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 at 10:45 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 Memodal 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 time for Petitioner's expert witness to be deposed via telephonic deposition. 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. Date: 01/28/02 Respectfully submitted, MANCKE WAGNER HERSHEY & TULLY Da~rL{~. Hershey, Esquire I.D. ~43092 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 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 Tammy L. Kelly L~ MANCKE WAGNER HERSHEY & TULLY JAMES DOYLE, III V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6027 LICENSE SUSPENSION APPEAL ORDER AND NOW, this,~[$~ da' of w, w ~ 2002, u on mobon of Petitioner and not~n y -~_~. P .... g that the Department of Transportation, through coOnsel, George Kabusk, Esquire, has no objection and noting the reasons supporting same, said motion is hereby ~L.~z.~;-z~, . The above- mentioned appeal is hereby rescheduled for the~-~'-'day of March, 2002 at /;~Rd)~.m. in Courtroom #1. BY THE COURT: .G'~0rge Kabusk, Esq., PennDOT ~z-/~ov~id~ 110-1S.E. Hershey,Fr°nt St.,Esq.Harrisburg, PA 17104-2516 2233 N. Front St., Harrisburg, PA 17110 JAMES DOYLE, III, Plaintiff COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL 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 been identified or admitted. At the time of the second adjournment, the Commonwealth was preparing to call Agent Ralph Richwine as its second witness. By the Court, ~avid Hershey, Esquire For the Plaintiff eorge Kabusk, Esquire For the Defendant wcy MICHAEL T. CR, OFTCHECK, Plaintiff JULIE L. CROFTCHECK, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-6341 CIVIL TERM : IN DIVORCE AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on November 6, 2001. 2. The marriage of Plaimiff and Defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date ~/~/~_~ ///~CHAELPT. CR(~I~TCHECK MICHAEL T. CROFTCHECK, Plaintiff JULIE L. CROFTCHECK, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 01-6341 CIVIL TERM : : IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sero to me immediately after it is filed with the Prothonotary. I verify that the statements made in this affidavit are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: ///j~iCtIAEL T. Ct~OFTCHECK JAMES DOYLE, III, Plaintiff COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL 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 INDEX TO WITNESSES FOR THE DEFENDANT Brian Staley DIRECT CROSS REDIRECT RECROSS 4 21 49 - - INDEX TO EXHIBITS FOR THE DEFENDANT MARKED ADMITTED No. 1 - DL-26 form 12 18 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 March 21, 2002 Divorce Master's Hearing Room 2:25 p.m. THE COURT: This is the time for a hearing in the case of James Doyle, III, versus Commonwealth of Pennsylvania. Department of Transportation. Bureau of Driver Licensinq, at No. 01-6027 CIVIL TERM. This is a license suspension appeal case. We will let the record indicate that the Appellant/Petitioner, James Doyle, III, is present with his counsel, David E. Hershey, Esquire. The Commonwealth is represented today by George Kabusk, Esquire. Did counsel wish to make opening statements or proceed directly to the evidence? statements. proceed, MR. HERSHEY: MR. KABUSK: Your Honor. THE COURT: MR. KABUSK: I don't have any opening The Department is ready to Ail right. Mr. Kabusk. By official notice dated September 21st, 2001, the Department notified James M. Doyle, III, driver's license number 16528999 that as a result of his violation of Section 1547 of the Vehicle Code, related to chemical test refusal on 8/10 of 2001, his driving privilege was being suspended for a period of one year. The Department now calls Officer Brian Staley. 3 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 Whereupon, BRIAN STALEY having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. KABUSK: Q Officer Staley, please state your name, spell your name for the record? A Brian Staley. S-t-a-l-e-y. Q Where are you employed? A New Cumberland Borough. Q During the course of your official duties, have you had occasion to investigate an alleged incident of DUI on or about August 10th of 20017 A Yes. Q Please tell the Court about that incident? A On this date, it was approximately 1:28 in the morning, I was operating a marked police cruiser in full uniform, conducting patrol activities. I had just turned south onto Poplar Avenue from Fourth Street and was traveling south on Poplar when I noticed a passenger car stopped at the intersection of Third and Poplar. This particular vehicle had a driver's side headlight out. As I continued through the 300 block of Poplar Avenue towards the Third Street intersection, the vehicle remained stopped at the stop sign. Once in the 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A emergency lights, side of the road. Q A intersection, the vehicle proceeded into the 300 block of Third Street. I initiated a traffic stop at the intersection of Fourth Street and Poplar Avenue for violation of Pennsylvania Vehicle Code pertaining to general lighting requirements. Q Prior to that, did you notice anything unusual about the stop? A At the time of the stop, the Defendant's vehicle was not pulled off the road but came to a stop at the intersection. How is that unusual? Well, generally when someone activates their a person will go off to the right-hand He stopped right at the intersection. Okay. Thank you. Please proceed. Upon walking up to the driver's side of the vehicle, I spoke with the operator of the vehicle who was identified later to be James Doyle who's seated here today beside defense counsel. At that time I explained the reason for the stop, and I had asked him if he was aware of it, and he indicated he was not aware of it. I indicated-- I asked him if he wanted to look at the violation that I had stopped him for. He indicated that he did. So we-- while we were speaking initially there at the window, from approximately a foot or 5 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 so, maybe two feet away, I could smell alcoholic beverages emitting from the Defendant. As we walked, moved to the front of the vehicle, I noticed Mr. Doyle stagger. Outside of the vehicle, I noticed that he was swaying and that his eyes were red and bloodshot. And I could from a distance of approximately three feet or so, I could again smell the odor of alcoholic beverages emitting from him. At that time I asked to see his driver's license, registration, insurance, and we moved back to the-- I'm sorry, the Defendant moved back to the vehicle, entered the vehicle again, and at that time he handed me his driver's license but did not give me the registration or the insurance. I asked the second time for the registration and insurance. At that time I noticed that Mr. Doyle had the registration card and the insurance card. He handed me the registration card and was fumbling with the insurance card but did not hand it to me and started to put it away. Then I asked the third time for the insurance card, and he proceeded to give it to me. These were some clues that I picked up on based on my training to perhaps that there might have been some type of cognitive impairment here. Thus, I asked, conversation with the Defendant coming from, I engaged in brief regarding where he was where he was headed. In speaking with him 6 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 could smell the odor of alcoholic beverages clues were stand? resulted in a maximum of four clues. THE COURT: Can you be specific as to which scored in the walk and turn and in the one-leg THE WITNESS: Sure. During the instruction stage of the walk and turn, I noticed that the Defendant's-- after he had been instructed to put his right foot directly in front of his left foot, heel-to-toe, that his feet broke apart and stepped out of that position. And I also noted that he started to walk too soon on another attempt after being instructed to remain in that position additionally, upon his breath. I had asked him if he had been drinking. Me indicated that he had, I believe, one beer earlier. At that point I asked him if he would be willing to submit to field sobriety tests. He indicated that he would. We-- as the Defendant exited the vehicle, I noticed that he used his hand and placed it on the door to exit the vehicle. As we moved back to the rear of the vehicle between his car and my patrol vehicle, again I noticed him to sway. I explained and demonstrated the field sobriety tests which included the walk and turn. The Defendant scored a six clues out of a possible eight clues on the walk and turn. And I demonstrated the one-leg stand. The one-leg stand 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 with his right foot directly in front of his left foot. Once he did begin the test, Mr. Doyle took steps not heel-to-toe, but rather, I would measure and estimate, about a foot apart, with his feet to the side of his lead foot, essentially walking a normal walk rather than how it was instructed and demonstrated to him, which I counted to be missing heel-to-toe and stepping off line. As he did his first nine steps, I noticed that he raised his arms. When he got to the end of nine steps, rather than pivoting on his lead left foot and taking a series of small steps with his right foot, he lifted his pivot foot and a couple large steps with his right foot, turned around quickly, began to walk nine steps back, stumbled, put his right hand on the fender of his vehicle on the passenger side, and continued his nine steps then, again approximately a foot in between steps. The steps were not in line, as other, and he had his arms score six clues. far as directly in front of each raised. That's how I came to On the one-leg stand, what had happened was, after giving the instructions, Mr. Doyle raised his leg or extended his leg, and he put his-- I noticed that during the initial ten second block, that he swayed that his torso or his extended leg was swaying back and forth, that he used his arms to balance himself in that he raised them 8 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 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 regarding DUI investigation and detection, based upon my experiences having made previous DUI arrests, signs that there was impairment which would include muscle control, some cognitive impairment, and based upon the fact that I had the physical signs of alcohol use which would include the bloodshot eyes which were glassy, the smell of alcoholic beverages, and his admission to drinking at least one beer, I made a decision at approximately 141 hours that morning to arrest Mr. Doyle BY MR. KABUSK: Q Officer Staley, tests did you conduct? A for DUI. how many field sobriety There was the walk and turn, the one-leg stand, and then the HGN. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q the HGN test? Your Honor, Okay. And what did you determine regarding MR. HERSHEY: We have to object to that, without a scientific foundation establishing both general acceptance of that test in the scientific community and the qualifications of a police officer to render an opinion on the scientific issue correlating the presence of eye gaze nystagmus with impairment due to alcohol and further correlation of eye gaze nystagmus with the ability of someone to safely operate a motor vehicle. THE COURT: Mr. Kabusk, do you have a response to that objection? MR. KABUSK: Your Honor, I'm just asking the officer the results of that in regard to reasonable grounds. I'm not trying to prove the fact of the HGN. I'm just asking if he passed or failed the HGN. THE COURT: Do you have any cases on point for this type of hearing? MR. KABUSK: No, I don't. license are any cases, THE COURT: Do you, Mr. Hershey? MR. HERSHEY: In the context of a DOT suspension appeal hearing, I'm not aware Your Honor. THE COURT: Ail right. of caution and sustain the objection. that there I'll err on the side 10 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 BY MR. KABUSK: Q Officer Staley, during the course of this initial interaction with the Petitioner, did you notice anything unusual about him in how he responded to your commands and your conversations? A Initially, when speaking with him there at the window and at the front of the car, I did not notice anything out of the ordinary. Once we had moved back to the rear of the vehicle to do field sobriety, Mr. Doyle indicated that he didn't have his hearing aid in, and I offered to allow him the opportunity to retrieve it, put it in. He chose not to. During field sobriety, there were a couple of times where he would ask me to repeat, which I did, in a louder voice. 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 position, what we call a position of advantage, which was, I had handcuffed him and was transporting him back to my police vehicle, he indicated that he had, what I thought at 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the time he said, Myers disease, but as it turns out apparently, it's Meniere's disease. Q Well, I'll just ask you, after you determined to place him under arrest, then what happened? A I transported him to the West Shore Booking which we arrived at approximately 1:57 a.m. that Center, morning. Q you-- A It was during the transport that he told It was actually after I advised him that he was under arrest for DUI. I had handcuffed him and was taking him back to my vehicle when he indicated that he had some type of disease. Q Okay. Then what happened? A We transported-- well, his vehicle was secured. His friend was found a ride home, and then we transported him to the West Shore Booking Center. At that time when we arrived, I read Mr. Doyle PA PennDOT form DL-26, the Implied Consent Law. Q Is this the form that you read to him? A Yes. MR. KABUSK: Commonwealth's Exhibit No. (Whereupon, I move to have this marked as 1. Commonwealth's Exhibit 1 was marked for identification.) 12 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 BY MR. KABUSK: Q A Please proceed. When I read the DL-26 form to Mr. Doyle, read sections or those items numbered one, two, three, four, and subsection letters a, b, and c to him. Q Could you read aloud what you read to him? A Yes. THE COURT: Would you read slowly for the stenographer? I and THE WITNESS: I'll try, Your Honor. THE COURT: Thank you. THE WITNESS: 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. I am requesting that you submit to a chemical test of breath. It is my duty as a police officer to inform you that you if you refuse to submit to the chemical test, your operating privilege will be suspended for a period of one year. 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 Implied Consent Law, which is a civil not a 13 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 criminal proceeding. 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 a refusal and your operating privilege will be suspended for one year. Your refusal to submit to chemical testing under the Implied Consent Law may be introduced into evidence in a criminal prosecution for driving while under the influence of alcohol or a controlled substance. BY MR. KABUSK: Q A Then what happened? After reading that to Mr. Doyle, I then afforded Mr. Doyle the opportunity to review it on his own. I placed it in front of him. He took it in his hands and placed it in front of his body as if he was reading it or reviewing the information. This lasted for several minutes. In total, this review of the DL-26 lasted for approximately 20 to 25 minutes. During that time, he would-- he indicated that he wanted to talk to a lawyer, and then I readvised him that he had no right to speak to a lawyer or anyone else before taking the chemical test, and I pointed out 14 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 subsection letter b on the DL-26 form. He had other-- he had indicated that he didn't understand. When I would ask him if he wanted to take the test, he would respond by saying he didn't understand or he wanted to speak to a lawyer. After, I would estimate, maybe three or four times of asking Mr. Doyle if he was going to submit to the breath test, his answer at approximately 2:25 or 2:22, somewhere in that time frame, was, no, that he didn't believe being arrested-- being-- excuse me, I'll have to look at my report. He didn't believe that having a headlight out warranted being arrested. And there or shortly thereafter, I transferred custody to Booking Agents Richwine, Lang, and Brandt, and I departed. Q Now during this period of time when you're at the Booking Center and going over the DL-26, how did Mr. Doyle appear to respond to you? A I would say, he was normal. It was normal interaction. We would engage in conversation. He would ask questions. I would answer it. He would then pick the paper back up and look at it some more. I didn't detect anything out of the ordinary there. Q Did he appear to read the DL-267 Yes, he did. Did he-- did you notice any physical or 15 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 medical disabilities? A No. Q Did he disabilities? A Q A hearing aid, of disease. tell you of any physical or medical Not at the Booking Center. Prior to that, what did he tell you? He indicated that he had a-- he wore a and then later he said that he had some type Like I said, I thought it was Myers disease, but it turns out, it was worded a little bit Q And regarding the hearing aid, to allow him to put the hearing aid in? Yes, I did. And what was his response? No. A said, no? A language was, differently. did you offer Did he tell you-- was that in response? He He shrugged it off. I believe his body 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? 16 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 take A I believe so, yes. Q Did he ever submit to the requested test? A No. Q And why was it to be a refusal? that-- how did he-- how did you 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 other questions? A That's what I recall. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And you what, then turned him over to the Booking Center? A That's correct. Q Do you know what particular booking agent was on duty? A Sure, it was Ralph Richwine, Agent Lang, and I believe Agent Brandt. MR. KABUSK: I move for the admission of what's been marked as Commonwealth's Exhibit No. 1. THE COURT: Mr. Hershey. MR. HERSHEY: Which one did you mark, George? If I could just take a look at it? MR. KABUSK: Right there. I provided Mr. Hershey with a copy of the DL-26. MR. HERSHEY: I have no objection to the admission of Exhibit 1. THE COURT: Commonwealth's Exhibit 1 is admitted. this time (Whereupon, Commonwealth's Exhibit 1 was admitted into evidence.) MR. KABUSK: Okay. No further questions at for this officer. THE COURT: I just have one question, if I might. BY THE COURT: 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q detecting the offense of Driving under the Influence. You mentioned that you had prior training in Can 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 Q Ail right. eight previous Driving under the Influence arrests. 10th. I think you said you had had 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 Cumberland County District Attorney's office represented what in terms of training? A That I had received training in the administration of standardized field sobriety tests. Q And can you detail the training? A Sure. That is a course that is-- involves 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 classroom instruction in what to look for in people who have been drinking alcoholic beverages, what to look for in people who are operating vehicles under the influence of alcohol. It includes your practical examination or practical in which you repeat the tests with other participants instructors. Q A point. in the class and review in front of How long a course is it? Twenty-four hours. THE COURT: We will take a recess at this (Whereupon, a recess was taken at 2:45 p.m.) 20 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 March 21, 2002 Courtroom No. 1 3:12 p.m. THE COURT: We will let the record indicate that the Court is again in session in the case of James Doyle, III, versus Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, at No. 01-6027 CIVIL TERM. Earlier on this date, the Court had adjourned with a view toward continuing the hearing on a subsequent date. 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. oath. BY MR. HERSHEY: Hershey. And you are still under CROSS EXAMINATION Q officer Staley, good afternoon. You didn't, in your observations of Mr. Doyle's vehicle, observe any erratic driving, is that correct? 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A that. You've testified in other proceedings this case, is that correct? A Yes. Q And you've prepared a criminal complaint charging an alleged violation of Driving under the Not what I would consider erratic, no. Now you had originally indicated-- scratch related to Influence in conjunction with this case, A Yes. Q In your original criminal indicated the time of the violation to be 1:49 a.m., is that correct? complaint, you had is that correct? A Okay. Acknowledging then that you made that 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 amendment at the preliminary hearing change in the time of the stop, do you concede that you made an error in reporting what time a particular event in Mr. Doyle's case transpired? A It's 1:41. it says 1:49. Q the time that you arrested Mr. In the affidavit, the time is accurate. On the front, on the criminal complaint itself, That was the time of transport. Okay. Did you also previously testify that Doyle was 01217 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Not to my recollection. Q Okay. Do you recall testifying in a preliminary hearing regarding this incident before District Justice Clement? A Yes. MR. HERSHEY: May I approach the witness, Your Honor? THE COURT: Certainly. BY MR. HERSHEY: Q Officer Staley, I'm handing you a transcript of preliminary hearing dated December 17th, 2001, before District Justice Charles Clement. And I'm referring to page 12, line 11. Could you read that to yourself, please? A Okay. Did you have an opportunity to review that Q transcript? A This is Q Okay. Justice Clement that the first I've seen it. Did you testify before District the time of arrest was 01217 A On the transcript, it says I did. Q Okay. Now if I understood your original testimony earlier today, you were traveling on Fourth Street, is that correct? Is that your testimony today? A I was, but are you referring to when I first observed Mr. Doyle's vehicle? 23 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 his? Q Yes. That was on Poplar Avenue. Okay. Which vehicle was on Poplar, yours or 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 was true or not true? A I don't remember. Q Okay. When you indicated to Mr. Doyle that he had a headlight out, did you have him walk to the front of his vehicle to view the headlight? A I asked him if he wanted to look for himself. He indicated that he did. So we moved to the front of the vehicle. Okay. Did he lean over to look at the Q headlight ? that he A We moved far enough in front of the vehicle could see it from standing upright. Q Okay. you stopped Mr. Doyle, at that Is it a correct statement that when he was not wearing his hearing aid time when you stopped him? 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A had been trained in the administration of field sobriety tests? A Yes. Q And that Cumberland County District Attorney's office, correct? A Q I don't know that. Okay. As you indicated earlier today, you standardized training was given through the is that Yes. And your instructors were Agent McLaughlin and Officer Jeffrey Potteiger, A Q is that correct? Yes. And you received a training manual as part of your course of instruction? A Yes. Q And as part of that course of instruction, you were trained on the administration of the walk and turn test? A Q Yes. And in your training, and more particularly in your training manual, does that require that individuals, does that state that individuals with back, leg, or middle ear problems have difficulty performing the walk and turn test? A Yes. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And your training, more particularly your training manual, states that the test conditions for the walk and turn test requires a designated straight line and should be conducted on a reasonably dry, hard level, non-slippery surface, is that correct? A Not totally, no. Q Okay. Which part is not-- which part don't you agree with? A As far as what's considered a straight line or a straight line being present. Q on that issue? A Okay. What Ideally, specifically was your training you would have a line to use, a straight line to use. However, out on the street, you're going to run into situations where there are no lines present such as in this particular instance. In that case, the attempt to use landmarks available to you such as curbs or even a reasonable person could say that they're walking a straight line if they place one foot directly in front of the other. 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 field sobriety test, is that correct? 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A your training manual, isn't it indicates that, or states that, Yes. A~d in your training, more particularly in true that the one-leg stand persons with back, leg, or middle ear problems or people who are overweight by 50 or more pounds have difficulty performing the test? A Yes. Q There's also, isn't it true, Officer Staley, that there is a section in your training manual pertaining to note taking regarding your observations at a possible DUI stop? A Q manual Yes. Okay. indicate that, In particular, does your training 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? Ideally, under perfect conditions, there's a A line, yes. Q Okay. With respect to the landmarks that you referred to as a guide for field sobriety tests, what landmark did you use for Mr. Doyle in this particular case? 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A 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 he would be walking a straight line between two other one, points. Q what you mean? A Q In essence, two imaginary points, is that Essentially, yes. Okay. The evening of this incident, Mr. Doyle indicated to you that he had Meniere's disease, is that correct? A didn't know what it was or I didn't hear him say Meniere's disease. Q A Q He indicated he had some type of disease. I You thought it was Myers disease? Yes. In either event, you weren't familiar with 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the condition at the time of the incident, A That's correct. Q Subsequent to this incident, investigating, is that correct? A Yes. Q Regarding Meniere's disease? A Yes. Q And is it a fair statement that you is that correct? you did some determined that it's an inner ear disorder which includes a gradual loss of hearing, and that one of the symptoms will be episodes for attacks where the person may have problems with their balance? LEFTi: doctor. THE COURT: MR. HERSHEY: Objection, Your Honor. He's not a Mr. Hershey. Officer Staley has given testimony to this effect in a prior proceeding, and that's the reason why I'm going there. THE COURT: Was there an objection at that MR. HERSHEY: No. THE COURT: Ail right. The objection is You've prepared a score sheet, for lack of a time? sustained. BY MR. HERSHEY: Q 29 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 better word, entitled pre-arrest particular case, is that A Yes. screening in this correct? Q part of your official file in this case, That pre-arrest screening sheet was-- became is that correct? A Yes. Q A Q That wasn't prepared in the field, was it? No. That was prepared sometime later after Mr. Doyle was taken back to the Booking Center? A Yes, that was taken off of my field notes. Q Okay. Are you indicating then that there are field notes? A Yes. Q You've maintained those field notes? A Yes. Q You had used the Booking Center prior to August the 10th, is that correct? A Yes. Q When I say, August the 10th, I mean, August the 10th of 20017 A I understand. Q Okay. Were you aware prior to August the 10th, that the Booking Center had video and audio taping capability? 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Were you aware at the time of Mr. Doyle's processing that the Booking Center had video and audio taping capability? Were you aware on August the 10th that there was video and audio taping capability available at the Booking Center? A Yes. Q At the time either prior to or during the field sobriety tests, isn't it true that you did not ask Mr. 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 Yes. Q You've had a chance to review this? A Yes. Q Okay. I note that there's a seal on the bottom left-hand corner of what appears to be a notary public, which is dated August 20th of 01, is that correct? A you submitted it to PennDOT? A Yes. Q Okay. So there was Yes. Did you take this form to a notary before a lapse of time between 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the incident with Mr. Doyle of August the 10th and the date you actually sent this form in to DOT, is that correct? A Yes. Q Okay. Now before you sent the form into DOT, was it your belief that Mr. Doyle had told you that he had Meniere's disease? MR. KABUSK: Objection, Your Honor. What's the relevance? THE COURT: Mr. Hershey. MR. HERSHEY: Judge, there is-- it's relevant for two reasons. One, the training for FST indicates that, as indicated on cross, that some persons with inner ear disorders may have difficulty performing field sobriety tests, and we believe that Meniere's is related to that, which would go to the reasonable grounds to request the test. Those questions weren't asked of Mr. Doyle until after this incident-- was either during or after the time this incident was deemed to be a refusal. THE COURT: Okay. What is the question that you're asking now? MR. HERSHEY: The question is, did you become aware prior to notifying PennDOT of the alleged chemical test refusal that Mr. Doyle had Meniere's disease? THE COURT: Prior to notifying PennDOT, not prior to administering the field sobriety tests? 32 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 Your Honor. this proceeding? BY MR. MR. HERSHEY: Prior to notifying PennDOT, THE COURT: How would that be relevant to MR. THE COURT: HERSHEY: Q You became aware, HERSHEY: I'll withdraw the question. Ail right. Officer Staley, that Mr. Doyle wore a hearing aid, A Yes. Q Okay. is that correct? Well, that's what he indicated to me. 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 Q No. After you determined Mr. Doyle failed to complete the field sobriety test to your satisfaction, you placed him under arrest, is that correct? A is that That's correct. A~d you put him in handcuffs at the correct? A Yes. scene, 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q You transported Mr. Doyle Booking Center, is that correct? A Q to the West Shore Yes. How long did it take you to get from the intersection at Fourth and Poplar to the Booking Center? A About 10 to 12 minutes. Q Once at the Booking Center, was Mr. Doyle still in handcuffs? A I misspoke that last question. I don't think it was that long. It was probably less than 10 minutes. Q That's in response to the question, how long did it take for you to get from the intersection at Fourth and Poplar to the Booking Center? A Yeah. Q Once at the Booking Center, was Mr. Doyle still in handcuffs? A Once we arrived, yes. Then he was taken out of the handcuffs and seated beside the Intoxilyzer and then given Pennsylvania's Implied Consent Law. Q Mr. Doyle? A Q scratch that. Did Booking Agent Lang take the cuffs off I don't remember. Do you agree that Mr. Doyle as well-- Isn't it true that Mr. Doyle had to be 34 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 searched as part of standard procedure as well as having 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 than what you just stated, en route to the Booking Center? 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? MR. KABUSK: Objection, Your Honor. What's the relevance of this line of questioning? THE COURT: Mr. Hershey. 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HERSHEY: Judge, as I understood the direct testimony, at least a portion of the Commonwealth's theory, if not the entire theory, is that this was a refusal by delay. And I'm trying to establish exactly how much time Mr. Doyle spent with the DL-26, and I think that any time that he was delayed, as is part of protocol, that's going to whittle away the time that he spent with the DL-26 form that would be relevant in determining whether or not he was delaying or stalling. THE COURT: Mr. Kabusk. MR. KABUSK: Your Honor, I believe that there was testimony that Officer Staley spent 20 to 25 minutes going over the DL-26, and the Petitioner replied, I'm not at all implying it's no, he wasn't taking a test. a delay case. had spent a in spite of I'll permit the BY MR. HERSHEY: THE COURT: Ail right. I think the officer did say that one of the considerations in his mind was, considerable amount of time with Appellant all that time, it simply ended up as a no. question. Q Officer Staley, is it true that there was some period of time that Mr. Doyle had to be searched before he would be seated next to the Intoxilyzer? A Generally, that's what happens. I can't he and So 36 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 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 cross-examination, can we have the sequestration? THE COURT: Mr. Kabusk. MR. KABUSK: No objection, Your Honor. THE COURT: All right. Agent Richwine, I'll ask you to step out for a moment. Thank you. At 3:45, I need to recess for about 10 minutes to conduct a pretrial conference, and then we can resume. BY MR. HERSHEY: Q Officer Staley, who escorted Mr. Doyle to the area where the chair was located for purposes of implied consent? A From where? Q A Q present when that occurred? A Yes. Q And would they be Agents Lang, Richwine, and From where you entered the Booking Center? I believe that would have been myself. Okay. Were there three other booking agents 37 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Brandt? A Yes. Q Do you know which one of those three agents 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. Doyle, do you know where Mr.-- where Agent Lang was? A At some points, he was in the room with us. I don't know whether he was there the entire time or not. 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 seated. I believe so, but I'm not certain about that. Q With respect to your incident report which I've had an opportunity to review, does that indicate that 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you gave Mr. Doyle the opportunity to read implied consent, specifically the DL-26, and that he responded to you that he did not understand what you had read? A I provided him with the form to read. I allowed him the opportunity to read it. He reviewed it for several minutes. And that's when some of the questions started being asked after having a chance to review it. Q All right. A Or statements being made, I should say, that he wanted a lawyer. Q Your incident report also indicates, does it not, that Doyle indicated that he did not understand what was being asked? A Yes. THE COURT: Not understand what? MR. HERSHEY: What was being asked. THE WITNESS: There were questions along that line. He made those statements, yes. BY MR. HERSHEY: Q Again, referring to your report which I've seen, the first two pages of your report are dated August the 10th, is that correct, in the top right-hand corner? Do you have that with you? A Yes. Q Okay. The remaining four pages of your 39 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 are dated report, including the narrative in this case, September the 26th, is that correct? A Do you want me to explain that? Q Please, if you would? A I believe that is the time that I pulled them off wrote the report. 10th of August. of our computer system and not the time that I On my pages, I have the top being the But I believe the September 26th is when I pulled it off of the computer, printed a copy out for myself. Q Did I understand you correctly on your direct exam that there were portions during the field sobriety testing where Mr. Doyle asked you to repeat things? A During the-- there was that two or three times, I believe it was, that he had asked me to repeat. 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 well as demonstrating the physical part, at 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? instructions as least a 40 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 that-- 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 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 least two aspects of the form that he had questions about, his right to an attorney and the penalty for not taking the test? A questions? Yes. THE COURT: Did you respond to those THE WITNESS: I attempted to, Your Honor, by using the DL-26 as my guidelines to answer his questions. THE COURT: All right. I'm sorry to interrupt, but I need to conduct a pretrial conference in another case for a few moments, and we will resume after that. (Whereupon, a recess was taken at 3:44 p.m. and proceedings reconvened at 4:05 p.m.) THE COURT: Officer Staley, I believe you are still under oath and are still testifying. We do need to adjourn at about 4:30. It would be nice if we could get the officer's testimony in today so he wouldn't have to come back. Mr. Hershey. MR. HERSHEY: Thank you, Your Honor. Could I ask the court reporter to read back my last question? THE COURT: (Whereupon, last question.) Sure. the court reporter read back the 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: you respond to those questions, and he MR. HERSHEY: Okay. BY MR. HERSHEY: Q Officer Staley, I think I had then asked, did indicated he had. 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? I'm not sure if I put that in my field notes Okay. I don't remember that. Do you have those with you? I do. A or not. Q A Q A Q Do you want to refer to them? 43 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A then would be, he said? A Other than when I cleared from the Booking Center, I can, sure. Would it help refresh your recollection? I didn't put it in my field notes. Okay. What you had asked. Okay. So the answer to the last question there is no written memorialization of what went back to the office, returned to the office, and did my dispatch report, my initial report. I believe put it in that report, but I'm not certain about that. Q Okay. All right. I'm looking at DOT's Exhibit P-l, and I also note, at least from my copy, there's no time recorded on these warnings, is that correct? A No, I did not. Q Okay. And I also note from DOT form DL-26 the provision that says, I've been advised of the above, signature of motorist. correct? A Your Honor? I'm sorry. MR. That appears to be blank, is that Can I see that? HERSHEY: Can I approach the witness, THE COURT: Certainly. 44 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 BY MR. HERSHEY: Q Exhibit P-1. A I'm handing the witness my copy of DOT's Are you talking-- THE COURT: Actually, I think it's Commonwealth's Exhibit 1, if I'm not mistaken. MR. HERSHEY: I stand corrected. Commonwealth's Exhibit 1. THE WITNESS: BY MR. HERSHEY: Q Officer Staley, Your question again, please? 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 don't you recall? THE WITNESS: I don't recall. 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: BY MR. HERSHEY: question, and indicate A the counter or the desk there. Okay. Q Well, as a follow-up question to that did you take this form out of Mr. Doyle's hands that you were treating this as a refusal? I don't recall. I believe it was laying on I don't think I grabbed it and took it out of his hands with any force or any anger or in any way upset. I think it was on the table, and I picked it off the table, advised him this was a refusal, and that was about it. 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 feet. Yes, a couple feet probably-- well, a couple 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 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 that he was going to administer the test, that for a fact. Q You're also a test operator, your direct? A device? A Q evening? A Q but I don't know if I understood That's correct. Are you qualified to run that particular No, not that model. Did you take Mr. Doyle to the rest room that No. You gave-- again, you gave testimony in a preliminary hearing relevant to your O'Connell with Mr. Doyle, is that correct? A Yes. Q Do you agree-- I'll give you an opportunity discussion 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I recall him saying, no, and that was the word that he used, no. And then there was-- in the same breath, there was the additional sentence, which it was to the effect of, I can't say it was word for word, but to the effect of that having that headlight out didn't warrant being arrested. Q Okay. But in your testimony previously, didn't you testify his answer was, no, that he didn't believe the light was out? A If that's what it says there. Q Is that your testimony? A Yeah. Q And do you agree at the previous hearing that you indicate that he-- you thought he said, I don't think the light being out was a reason to be arrested? I'm sorry. Rephrase that-- could you ask A that again? Q Do you agree you testified at the preliminary hearing that, quote, that he said in your presence, quote, I don't think the light being out was a reason to be arrested? A Yes. Q Okay. MR. HERSHEY: THE COURT: I have no further questions. Mr. Kabusk. 48 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 BY MR. KABUSK: Q initial stop? A 0128 hours. Q A Q A custody. Q A REDIRECT EXAMINATION Officer Staley, what was the time of the The initial stop was at approximately 1-- Then what was the next time Would have been the time of And what was that time? That was the time that Mr. that you noted? 0141 hours. Doyle was in Okay. What was the next noteworthy time? The next noteworthy time would have been at 0149 hours when I began my transport of Mr. Doyle from Poplar Avenue to the Booking Center. Q And do you have noted when you arrived at the Booking Center? 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 was wearing that particular night, I recall 0222 hours. Q And previously, you stated 2:22 or 2:25. watch that I the time being 49 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 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? A He shook his head back and forth consistent with being, no. And he-- and that's-- he said something about, but I don't remember what that was. It was a real quick-- I believe he said-- I don't remember what he said. Q Did he tell you that he had any physical or medical limitations that affected or would affect his ability to perform the field sobriety tests? A No. Q So he didn't tell you that he was-- he had a condition which would have prevented him from taking the test? A Q disease, A opportunity to put in the hearing aid, up on that offer, did he? No. And when you asked him to explain Meniere's he didn't explain that? No. And when you asked him to-- or gave him the he didn't take you 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A NO, 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 I am. Q And there's a videotape, very brief are you aware of that? Yes. And was a Booking Agent Richwine present videotape, A Q 51 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 during your conversation and request submit? A witness. Thank you. of Mr. Doyle to Yes. MR. KABUSK: No further questions of this THE COURT: Mr. Hershey. MR. HERSHEY: Nothing further, Your Honor. THE COURT: All right. You may step down. Mr. Officer Staley be excused? rebuttal, and Mr. MR. KABUSK: Your Honor. THE COURT: Hershey-- MR. HERSHEY: I'm going to need him here for We will adjourn at this point, I'm sorry. Is it possible that we could do Agent Richwine? THE COURT: I don't think so. I have an appointment outside the office at five. MR. HERSHEY: Very good. Very good. THE COURT: We'll enter this order. (Whereupon, the following Order of Court was entered:) 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 52 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 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 been identified or admitted. At the time of the second adjournment, the Commonwealth was preparing to call Agent Ralph Richwine as its second witness. By the Court, /S/ J. Wesley Oler, Jr. counsel? THE COURT: Is that order satisfactory to MR. KABUSK: Yes. 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the time, 2002, at MR. HERSHEY: THE COURT: MR. KABUSK: please? THE COURT: Yes, Your Honor. Okay. Thank you. Could you repeat the date and Sure, it's Thursday, June 6, 1:30 p.m. Court is adjourned. (Whereupon, the proceeding adjourned at 4:25 p.m.) 54 01-6027 0141 0149 0157 0222 1 10th 11 12 141 1547 L6528999 20 2001 2002 20th 300 33 35 3731 3z12 3:44 3:45 4z05 4*25 4~30 5 5O 5000 6 6 8/10 A A Ability Able About Above Above-captioned Acceptance Accurate Acknowledged Acknowledging Activated Activates Activities Actually Addition Additional Additionally Adjourn Adjourned Adjournment Administer Administering Administration Admission Admitted Advantage Advised Affect Affected Affidavit Afforded After Afternoon Again Against Agent Agree Aid Alcohol Alcoholic Align All Alleged Allowed Almost Along Aloud Also A1 though Am Amendment Amount An And Anger Another Answer Anything Apart Apparently Appenl Appear Appeared Appears Appellant Appellant/Petitioner Appellee/Respondent Apply Appointment Approach Approximately Around Arrest Arrested Arrived AS Ask Asked Asking Aspects Assuming At Attacks Attempt Attempted Attorney Attorney,s Audio August Available Avenue Aware Away B B Back Balance Based Be Became Before Began Begin Being Belief Believe Bent Beside Better Beverages Bit Blank Block Bloodshot Body Booking Borough Both Bottom Brandt Breath Breathelyzer Brian Broke Building But C C Call Calls Came Can Can't Capability Car Card Carlisle Case Caution Center Certain Certainly Certificate Certified Chair Chance Change Charging Charles Checkpoints Chemical Chose Civil Class Cleared Clearly Clement Client Clues Code Cognitive Combination Come Coming Commands Commonly Commonweal th Co~onweal th ' s Co~ununt cat ton Communi ty Complaint Complete Completed Computer Concede Concluded Condition Conditions Conduct Conducted Conducting Conference Confused Conjunction Consent Consider Considerable Consideration Considerations Constitutional Contemporaneous ly Context Continue Continuing Control Controlled Conversation Conversations Copy Correct Corrected Correctl~ Correlating Correlation Could Counsel Counted Counter County Cours~ Court Courthouse Courtroom Criminal Cross Cross-examination Cross-examined Cruiser Cuffs Cumberland Curb Curbs Custody D Date David Day Dealing December Decided Decision Deemed Defendant Defendant,s Defense Delay Delayed Delaying Demonstrated Demonstrating Departed Department Designated Desk Detail Detect Detecting Detection Determining Did Difficulty Discussing Discussion Disease Disorder Doyle ' s Drinking Driver Driver, · Driving Du'r During E Each [3] 8:17 16:23 40:21 Ear Earlier Essentially Establish Establishing Estimate Evening Evidence Exact Example Excerpt Excused Exhibit Exited Experience Explain Explained Explanation Expressed Extended Eyes F Fact [4] 9:lS 10:1~ 17:12 47:2 Failed First Five Folder Follow-uD Followed Following Follows Foot For Forth Found Foundation Fourth Friend Front FST Full Fumbling Further Gaze General generally gentlemen George Get Give Given Giving Glassy GO Going Good Got Grabbed Gradual ~reat ~rounds Ouidelines H Had Halfway Hand Handcuffed Handcuffs Handed Handing Hands Happens Has Have He's Head Headed Headlight Hearing Heel Heel-to-toe Held Help Hershey Him [61] 5:20,22-23 6:8,25 7:3,5,10 8:6 Himsel£ His Hold Home How I I've Ideally Identified If Imaginary Impaired Impairment Implied Implying Inches Incident Included Includes Including Indicate Indicated Indicates Indicating Individual Individuals Influence Inform Information Initial Initially Initiated Inside Instructions Instructors Interrupt Into Intoxilyzer Investigating It's Items Its Itself J J Jeffrey Jr Judge Just Justice K Kabusk [29] 3:11.16,18-19 4~5 9:21 10:11, 13,19 11:1 12:22 13:1 14:1~ 18:8,13, 21 21:17 32:7 35:23 36:10-11 37:8-9 Kept Know L Lack Landmark Landmarks Language Lapse Large Last Lasted Later Law Lawyer Laying Lead Lean Least Let Letter Letters Level Licensing Lighting Lights Like Limitations Line Lines Little Lived Located Long Look hooking bower M Maintained Making Manner Manual March Mark Marked Matter Maximum ~cLaughlin Meant Medical Memorialization Mentioned Middle Might Minutes Miranda Missing Mtsspoke Mistaken Misunderstand Model Moment Moments Morning Motor Motorist Move Moved Mr Much Muscle Myers Myself N Narrative Need New Next Nice Night Nine NO Non-slippery No r Normal Notary Note Noted Notes Noteworthy Nothing Notice Notified Notifying Now Number Numbers 0 0' Corms11 Oath Object Objection Observations Observe Observed Observing Occasion Occurred Odor of off Offense offer Offered office Officer Officer,s Officers Official Oh Okay 01er On Once One One - 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The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date~ ~ Jr/Wesley Ole~J~., ~ 55 JAIVIES DOYLE, III, Appellant/Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-6027 CIVIL TERM ORDER OF COURT AND NOW, this l0th 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 i¢~Vesley Oler,cJ, K.~ I7.- kl. VIlW^'IA$~ l~'lO~ut-t.~O~ :~., ..40 ~eOrge 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 :rc JAMES DOYLE, III, Appellant/Petitioner Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 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. ,~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 By the Court, Wesley 0~, Jr., pcb ~NVA]ASNN3d I '1 ;~ Nd I I Ni'tl~