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HomeMy WebLinkAbout07-5844BRIAN K. KUNKLEMAN, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. Dj 5€y`? COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION APPEAL OF OPERATOR'S, i.iCENSF, SUSPENSION AND COMMERICAL DRIVER'S LICENSE DISQUALIFICATION AND NOW, comes the Appellant, Brian K. Kunkleman, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., LLC and respectfully avers the following: 1. Appellant resides at 1295 Private Oak Lane, Cumberland County, Pennsylvania 17257. 2. The underlying violation that is alleged for this suspension and disqualification occurred in Cumberland County. 3. The Appellant received a notice dated September 6, 2007, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privileges were being suspended for a period of (18) eighteen months, effective suspension date October 11, 2007, at 12:01 a.m. A true and correct copy of the Notice is attached as Exhibit "A." 4. The Appellant received a notice dated September 6, 2007, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, that his commercial driving privileges is disqualified for a period of one (1) year, effective October 11, 2007, at 12:01 a.m. A true and correct copy of the Notice is attached as Exhibit "B." 5. The Appellant has a Preliminary Hearing scheduled before Magisterial District Judge Harold E. Bender on November 14, 2007 regarding his alleged violation on August 4, 2007. 6. The Appellant submits that there has not been a final disposition of his charges and that he would be unduly prejudiced if the suspension and disqualification were to be imposed at this time. 7. There was insufficient evidence to charge the Appellant. 8. The Appellant denies he committed the offenses. WHEREFORE, your Appellant respectfully requests your Honorable Court to schedule an evidentiary hearing on the matter and to reverse the Department's Order to suspend and disqualify his Pennsylvania operating privileges. Respectfully ra c&4?!L4er, Jr., Esquire La Offices of Patrick F. Lauer, Jr., LLC 21 8 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 Date: October 3, 2007 ID# 46430 Tel. (717) 763-1800 BRIAN K. KUNKLEMAN, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION I, Patrick F. Lauer, Jr., Esquire, undersigned counsel for Appellant, Brian K. Kunkleman, hereby verifies and states that: 1. I am the attorney for Appellant, Brian K. Kunkleman; 2. I am authorized to make this verification on my client's behalf; 3. The facts set forth in the foregoing Appeal are known to me and not necessarily to my client; 4. The facts set forth in the foregoing Appeal are true and correct to the best of my knowledge, information and belief; and 5. I am aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unworn falsification to authorities. Respectfully submitted, Fat - k F. Lauex, Jr., Esq. Law ffices of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 Date: October 3, 2007 ID# 46430 Tel. (717) 763-1800 BRIAN K. KUNKLEMAN, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION I hereby certify that I am this day serving a copy of the foregoing Appeal upon opposing counsel by depositing a copy of the same in the United States Mail, Camp Hill, Pennsylvania, through first class mail, certified, return receipt requested, postage paid and addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 y submitted, Date: October 3, 2007 Y trick/T. Lauer, Jr., Esq. aw Offices of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 ?x d„ 61 /? COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: SEPTEMBER 06, 2007 BRIAN KEITH KUNKLEMAN WID # 072426561302654 002 1295 PRIVATE OAK LANE PROCESSING DATE 08/30/2007 SHIPPENSBURG PA 17257 DRIVER LICENSE 5 21129024 DATE OF BIRTH 09/24/1966 Dear MR. KUNKLEMAN: This is an Official Notice of the Suspension of Your Driving Privilege as authorized by Section 1547BIII of the Pennsylvania Vehicle Code. As a result of your Section 1547 of the Vehicle Code, CHEMICAL TESTvREFUSAL, on 08/04/2007: ¦ Your driving privilege is SUSPENDED for a period of 18 MONTH(S) effective 10/11/2007 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current Pennsylvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 10/11/2007. You may surrender these items before, 10/11/2007, for earlier credit; however, you may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, you may apply for and obtain a photo identification card at any Driver License Center for a cost of 510.00. You must present two (2) forms of proper identification (e.g., birth certificate, valid U.S. Passport, marriage certificate, etc.) in order to obtain Your photo identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the following steps to acknowledge this suspension. I. Return all current Pennsylvania driver's licenses, learner's permits and/or camera cards to PennDOT. If you do not have any of these items, send a sworn notarized letter stating you are aware of the suspension of your driving privilege. You must specify in your letter why you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: 072426561302654 Sincerely, 9?0 ?-' - Z g.') Janet L. Dolan, Director Bureau of Driver Licensing INFORMATION 8:00 a.m. to 6:00 .m. IN STATE - 1-800-932-4600 TDD IN STATE OUT-OF-STATE 717-412-5300 TDD OUT-OF-STATE 1-700-412-5380 WEB SITE ADDRESS www.dmv.state -- .us COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 SEPTEMBER 06, 2007 BRIAN KEITH KUNKLEMAN WID # 072426561302654 002 1295 PRIVATE OAK LANE PROCESSING DATE 08/30/2007 SHIPPENSBURG PA 17257 DRIVER LICENSE # 21129024 DATE OF BIRTH 09/24/1966 Dear Motorist: This is an Official Notice of mercial driving privilege as the Pennsylvania Vehicle Code in Pennsylvania. Disqualification of your com- authorized by Section 1613 of as a result of your violation Your driving record reflects a violation on 08/04/2007 of 1547 of the Pennsylvania Vehicle Code, CHEMICAL TEST RE- FUSAL. Your commercial driving privilege is disqualified for a pe- riod of 1 YEAR(S) effective 10/11/2007 at 12:61 A.M. In order to comply with this sanction you are required to return any current driver's license, learner's permit and/or temporary driver's license (camera card) in your possession no later than the effective date listed. If you cannot comply with the requirements stated above, you are required to submit a DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Ve- hicle--Cu-de.- - ...._,,. ___.... _. Although the law mandates that your driving privilege is under disqualification even if you do not surrender license, Credit will not begin until all current driver's license product(s), the DL16LC Form, or a letter acknowl- edging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The above mentioned sanction is in addition to any pre- viously issued sanction(s). 072426561302654 Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving-this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation ofyour driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, SEPTEMBER 06, 2007, of this letter. If you file an appeal in the County Court, the Court will give you a time-stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certified copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 10/11/2007. 072426561302654 You have the right to appeal the Department's action to the Court of Common Pleas (Civil Division) within 30 days of the mail date (SEPTEMBER 06, 2007) of this notice. You must still send in your license before the effective date of disqualification unless you appear in person before a Judge and receive an order permitting you to continue to drive. PLEASE NOTE that this Civil Appeal is in addition to any appeal you have to file from the criminal conviction. AFTER THE APPEAL HAS BEEN FILED IN THE COUNTY COURT, A TIME-STAMPED CERTIFIED COPY OF THE APPEAL MUST BE SENT BY CERTIFIED MAIL TO: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL THIRD FLOOR, RIVERFRONT OFFICE CENTER HARRISBURG, PA. 17104 Sincerely, 'Xtti- - g Janet L. Dolan, Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/T0: INFORMATION (8:00 AM TO 6:00 PM) Department of Transportation IN STATE Bureau of Driver Licensing 1-800-932-4600 P.D. Box 68693 OUT-OF-STATE 717-412-5300 Harrisburg, PA 17106-8693 TOD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-412-5380 D ?b BRIAN K. KUNKLEMAN, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA y V. NO. 0.7, JP COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION EX PARTF RFO TTFST FOR STIPFRSFDFA4 OF ONE YFAR COMMFRiCAI DRiVFR'S LICENSE DISQUALIFICATION AND NOW, comes the Appellant, Brian K. Kunkleman, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., LLC and respectfully avers the following: 1. Appellant resides at 1295 Private Oak Lane, Shippensburg, Cumberland County, Pennsylvania 17257. 2. The Appellant received a notice dated September 6, 2007, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, that his commercial driving privileges is disqualified for a period of one (1) year, effective October 11, 2007, at 12:01 a.m. A true and correct copy of the Notice is attached as Exhibit "A." 3. Appellant filed his appeal of the suspension and disqualification with the Court of Common Pleas of Cumberland County with the filing of this request. 4. Appellant makes this request pursuant to 75 § 1550(b)(2). 5. Appellant respectfully requests a supersedeas until the conclusion of the hearing regarding Appellant's appeal of the suspension and disqualification. 6. Appellant avers that this disqualification is based solely upon his alleged violation. 7. Appellant avers that his appeal of operator's license suspension and commercial driver's license disqualification will be sustained. 8. If the appeal is denied the Commonwealth will not be prejudiced by the supersedeas being granted. WHEREFORE, your Appellant respectfully requests your Honorable Court to grant the request for supersedeas of his commercial driver's license disqualification. Respectfully submitted, 9 heck Fa/Lauer, Jr., Esquire aw Offices of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 Date: October 3, 2007 ID# 46430 Tel. (717) 763-1800 BRIAN K. KUNKLEMAN, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION I, Patrick F. Lauer, Jr., Esquire, undersigned counsel for Appellant, Brian K. Kunkleman, hereby verifies and states that: 1. I am the attorney for Appellant, Brian K. Kunkleman; 2. I am authorized to make this verification on my client's behalf; 3. The facts set forth in the foregoing Appeal are known to me and not necessarily to my client; 4. The facts set forth in the foregoing Appeal are true and correct to the best of my knowledge, information and belief, and 5. Lam aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unworn falsification to authorities. Date: October 3, 2007 Respectfully submitted, Ya ck F. Lauer, Jr., Esquire L Offices of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 BRIAN K. KUNKLEMAN, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION I hereby certify that I served a copy of the Ex parte Request for Supersedeas of One Year Commercial Driver's License Disqualification upon opposing counsel by depositing a copy of the same in the United States Mail, Camp Hill, Pennsylvania, through first class mail, certified, return receipt requested, postage paid and addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 submitted, Date: October 3, 2007 ?`{ck Lauer, Jr., Esquire /Law Offices of Patrick F. Lauer, Jr., LLC 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 JE? A-, ?, ? A COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Harrisburg, PA 17123 SEPTEMBER 06, 2007 BRIAN KEITH KUNKLEMAN WID # 072426561302654 002 1295 PRIVATE OAK LANE PROCESSING DATE 08/30/2007 SHIPPENSBURG PA 17257 DRIVER LICENSE # 21129024 DATE OF BIRTH 09/24/1966 Dear Motorist: This is an official Notice of mercial driving privilege as the Pennsylvania Vehicle Code in Pennsylvania. Disqualification of your com- authorized by Section 1613 of as a result of your violation Your driving record reflects a violation on 08/04/2007 of 1547 of the Pennsylvania Vehicle Code, CHEMICAL TEST RE- FUSAL. Your commercial driving privilege is disqualified for a pe- riod of 1 YEAR(S) effective 10/11/2007 at 12:61 A.M. In order to comply with this sanction you are required to return any current driver's license, learner's permit and/or temporary driver's license (camera card) in your possession no later than the effective date listed. If you cannot comply with the requirements stated above, you are required to submit a DL16LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Ve- hicle-Code : - _..v.._._._ .._ _._ Although the law mandates that your driving privilege is under disqualification even if you do not surrender your license, Credit will not begin until all current driver's license product(s), the DL16LC Form, or a letter acknowl- edging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- MENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The above mentioned sanction is in addition to any pre- viously issued sanction(s). 072426561302654 Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's permit(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit began. If you do not receive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving-this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If you do not return all current driver license products, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, SEPTEMBER 06, 2007, of this letter. If you file an appeal in the County Court, the Court will give you a time-stamped certified copy of the appeal. In order for your appeal to be valid, you must send this time-stamped certified copy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 10/11/2007. 072426561302654 You have the right to appeal the Department's action to the Court of Common Pleas (Civil Division) within 30 days of the mail date (SEPTEMBER 06, 2007) of this notice. You must still send in, your license before the effective date of disqualification unless you appear in and receive an order permitting you toe cont n eorto adrive. PLEASE NOTE that this Civil Appeal is in addition to any appeal you have to file from the criminal conviction. AFTER THE APPEAL HAS BEEN FILED IN THE COUNTY COURT, A TIME-STAMPED CERTIFIED COPY OF THE APPEAL MUST BE SENT BY CERTIFIED MAIL TO PENNSYLVANIA DEPARTMENT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL THIRD FLOOR, RIVERFRONT OFFICE CENTER HARRISBURG, PA. 17104 Sincerely, ':D?- zg."? Janet L. Dolan, Director Bureau of Driver Licensing SEND FEE/LICENSE/DL-16LC/T0: Department of Transportation Bureau of Driver Licensing P.D. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (8:00 AM TO 6:00 PM) IN STATE 1-800-932-4600 OUT-OF-STATE 717-412-5300 TDD IN STATE 1-800-228-0676 TDD OUT-OF-STATE 717-412-5380 . R OCT 0 52007 BRIAN K. KUNKLEMAN, Appellant V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5Q y COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION AND NOW this 40"' day of Q dXy 2007, upon consideration of the within APPEAL OF OPERATORS LICENSE SUSPENSION and COMMERICAL DRIVER'S LICENSE DISQUALIFICATION, it is hereby ordered that a hearing shall be held regarding this matter at on the day of iLUAIM116t- , at 3 • 36 -am./p.m. in Courtroom No. O? of the Cumberland County Courthouse, Carlisle, Pennsylvania. A supersedeas is granted pursuant to Vehicle Code Section's 1550(b)(1) until such time that this Honorable Court resolves this appeal. Distribution: Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfront Harrisburg, PA 17104 V-11'atrick F. Lauer, Jr., Esq., 2108 Market Street, Camp Hill, PA 17011 ` V ? Z ? f1 Center, i A C%j - r+ CCT 0 5 20070-d BRIAN K. KUNKLEMAN, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 19 y COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, APPEAL OF OPERATOR'S LICENSE Appellee SUSPENSION ORDER OF COURT AND NOW this day of 2007, upon consideration of the EX PARTE REQUEST FOR SUPERSEDEAS OF ONE YEAR COMMERCIAL DRIVER'S LICENSE DISQUALIFICATION is granted until such time that this Honorable Court resolves this appeal. A supersedeas of Appellant's disqualification of commercial driver's license is granted pursuant to Vehicle Code Section 1550(b)(2). PA Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104 Patrick F. Lauer, Jr., Esq., 2108 Market Street, Camp Hill, PA 17011 - C?P-> 7 LLI L d BRIAN K. KUNKLEMAN, PETITIONER V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5844 COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, LICENSE SUSPENSION APPEAL BUREAU OF DRIVER LICENSING, RESPONDENT ORDER AND NOW, this day of co-, V , 2007, upon request for a continuance by Attorney George H. Kabusk, attorney for the Department, and with no objection by Attorney Patrick F. Lauer, Jr., attorney for the Petitioner, the hearing in the above referenced appeal is continued and rescheduled for the 13th day of February, 2008 at 9:15 a.m. in Courtroom Number 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: J. Distribution: ,deorge H. Kabusk, Esquire, Department of Transportation, Riverfront Office Center- 3rd Floor, 1101 South Front Street, Harrisburg, Pennsylvania 17104-2516 ,,fatrick F. Lauer, Jr., Esquire, 2108 Market Street, Camp Hill, PA 17011 &-Iz? '?? 4 Lr) E!_ Az r d µ"? BRIAN K. KUNKLEMAN V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING 07-5844 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE ORDER OF COURT AND NOW, this day of February, 2008, the within appeal, IS DISMISSED. ZGeorge Kabusk, Esquire For the Department of Transportation V- Patrick F. Lauer, Jr., Esquire For Petitioner sal By the Edgar B. Bayley, J. a/r4?dg Ooptts' ?- ~) C ?? V BRIAN K. KUNKLEMAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING 07-5844 CIVIL TERM IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGE OPINION AND ORDER OF COURT Bayley, J., February 19, 2008:-- PennDOT suspended the driving privilege of Brian Keith Kunkleman for eighteen months and his commercial driving privilege for one year for refusing to submit to a chemical test of his blood alcohol content following his arrest for driving under the influence. Kunkleman filed this appeal upon which a hearing was conducted on February 13, 2008. We find the following facts. On August 4, 2007, at 1:31 a.m., Trooper Michael Burns of the Pennsylvania State Police observed a vehicle being operated in front of him on Fayette Street in Southampton Township, Cumberland County. On three separate occasions within one- eighth of a mile the vehicle swerved over the fog line, the last time almost striking a bridge abutment. Trooper Burns activated his lights and sirens on his patrol car, but the vehicle did not stop. The trooper activated his audio system and told the driver to stop. The vehicle continued over at least three miles before it turned into a driveway and stopped. The driver was Brian K. Kunkleman and the driveway led to his home. Trooper Burns and his partner Trooper Barker went up to the vehicle where Burns ordered Kunkleman to get out. Kunkleman refused. Burns opened the front door and 07-5844 CIVIL TERM Kunkleman grabbed the steering wheel. Trooper Burns smelled a strong odor of alcohol. A struggle ensued with Kunkleman continuing to hold onto the steering wheel while Burns tried to get him out of the vehicle. Burns maced him and dragged him out. Kunkleman's resistance continued. He was maced again and finally the troopers were able to get him handcuffed and into custody and under arrest for driving under the influence and speeding and eluding a police officer. Kunkleman was punched during this melee, he was hit with a truncheon, and he suffered some abrasions on his face. The troopers drove him to the Chambersburg Hospital. On the way, Kunkleman made an unsolicited statement that he had injured his ribs while cutting firewood on a previous date. At the hospital, at 2:33 a.m., Trooper Burns read the Implied Consent warnings to Kunkleman and asked to take a blood test. Kunkleman said he did not understand the warnings. He complained of pain in his abdominal area and ribs and asked for painkillers. The medical staff wanted Kunkleman to take a shower to dissipate the effects of the mace. He took a shower. At 3:12 a.m., he was again read his Implied Consent warnings. He answered the same way, and he would not consent to a blood test. Kunkleman raises one issue, maintaining that the extent of the injuries he had when he was asked to undertake a blood test were so obvious that we should find that he was not capable of making a knowing and conscious refusal to take the test. In Lemon v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 763 A.2d 534 (Pa. Commw. 2000), the Commonwealth Court of Pennsylvania stated: -2- 07-5844 CIVIL TERM .. . [w]here a licensee suffers from a medical condition that affects his ability to perform the test and that condition is not obvious, the finding that a driver was unable to take the test for medical reasons must be supported by competent medical evidence. In Barbour v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driving Licensing, 732 A.2d 1157 (Pa. 1999), the Supreme Court of Pennsylvania stated: In a license suspension case, the burden of proof is placed first on the Commonwealth. In order to meet its burden, "the Commonwealth must establish that the driver involved: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to chemical testing; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his driver's license." Commonwealth, Dept. of Transportation v. Ingram, 538 Pa. 236, 648 A.2d 285, 293 (1994). If the Commonwealth meets its burden on all four of these prongs, then the burden shifts to the licensee to prove that he was not capable of making a knowing and conscious refusal to take the test. Id. The determination of whether a licensee was able to make a knowing and conscious refusal is a factual one which is to be made by the trial court. O'Connell, 555 A.2d at 876. The Commonwealth Court has held that where the Commonwealth has established the four Ingram factors that a licensee may prevent his license from being suspended only if he can establish by "competent medical evidence" that a medical condition, unrelated to the consumption of alcohol, rendered his refusal unknowing. See Commonwealth, Dept of Transportation v. Peck, 132 Pa.Cmwlth. 509, 573 A.2d 645, 647 (1990). Over the years, the Commonwealth Court has refined its interpretation of what constitutes "competent medical evidence" in this arena so that it now requires that the expert medical testimony must be certain and essentially without doubt in order for it to be sufficient to establish that the licensee's refusal was unconscious and unknowing. See, e.g., Plotts v. Commonwealth, Dept of Transportation, 660 A.2d 133 (Pa. Commw.Ct. 1995) and Commonwealth, Dept of Transportation v. Monsay, 142 Pa.Cmwlth. 163, 596 A.2d 1269 (1991). The Supreme Court then defined this test by holding that a reasonable degree of -3- 07-5844 CIVIL TERM medical certainty standard is applicable in the license revocation arena. At the hearing in the case sub judice, Kunkleman did not call a medical expert to offer any opinion as to whether he suffered from injuries at the time he was asked to take the blood test such that he was not capable of making a knowing and conscious refusal. From the evidence presented at the hearing, the extent of any injuries to Kunkleman were not so obvious that we could conclude that he was not capable of making a knowing and conscious refusal to take a blood test. Therefore, the following order is entered. ORDER OF COURT AND NOW, this Iok day of February, 2008, the within appeal, IS DISMISSED. By the George Kabusk, Esquire For the Department of Transportation Patrick F. Lauer, Jr., Esquire For Petitioner :sal -4- Edgar B. Bayley, J. ?% BRIAN K. KUNKLEMAN, Petitioner V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 07-5844 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDGAR B. BAYLEY, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on February 13, 2008, in Courtroom Number Two. APPEARANCES: GEORGE H. KABUSK, Esquire For the Department of Transportation PATRICK F. LAUER, JR., Esquire For the Petitioner INDEX TO WITNESSES FOR THE COMMONWEALTH Michael William Burns DIRECT CROSS 13 1 INDEX TO EXHIBITS FOR THE COMMONWEALTH IDENTIFIED ADMITTED 1. Notice of suspension of 4 13 driving privilege dated September 6, 2007 2. Notice of suspension of 4 13 commercial driving privilege dated September 6, 2007 3. Arrest processing sheet with 8 13 Implied Consent Warnings and O'Connell Warnings FOR THE PETITIONER 1. Four photographs of petitioner 21 35 3 ti + 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 February 13, 2008, 8:55 a.m. Carlisle, Pennsylvania (Whereupon, the following proceedings were held:) THE COURT: Which case is this? MR. KABUSK: This is the case of Brian Kunkleman versus Department of Transportation, Bureau of Driver Licensing, 07-5844. THE COURT: You may proceed. MR. KABUSK: This is an appeal from a notice of suspension dated September 6, 2007, in which the Department notified the petitioner, Brian Kunkleman, operator's number 211290241 that as a result of his violation of Section 1547 of the Vehicle Code relating to chemical test refusal on 8/4 of 2007 his driving privilege was being suspended for a period of 18 months. Additionally, by notice dated September 6, 2007, the Department notified the petitioner, Mr. Kunkleman, that as a result of his violation of Section 1547 of the Vehicle Code on 8/4 of 2007 his commercial driving privileges were being disqualified for a period of one year. The Department now calls Trooper Burns. Whereupon, MICHAEL WILLIAM BURNS, having been duly sworn, testified as follows: 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 DIRECT EXAMINATION BY MR. KABUSK: Q Trooper Burns, please state your name and spell your last name for the record. A My name is Trooper Michael William Burns, B-u-r-n-s. Q And where are you employed? A I'm currently employed by the Pennsylvania State Police out of the Troop H Carlisle Barracks. Q During the course of your official duties, have you had occasion to investigate an alleged incident of DUI on or about August 4th, 2007? A Yes. Q Would you please tell the Court about that incident. A On Saturday, August 4th, 2007, I was performing patrol activities within the Cumberland County area. At that time I was operating a fully marked Pennsylvania State Police patrol vehicle and attired in full uniform. At approximately 1:31 a.m., I was traveling south on South Fayette Street in Southampton Township, Cumberland County. At that time I was following a maroon Oldsmobile '88 sedan. On two occasions I observed the operator of the vehicle and the vehicle itself drift to the 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 right and cross the white fog line of South Fayette Street and actually exit and cross over the edge of the roadway. On a third occasion, I observed the vehicle to again drift to the right, cross the fog line and this time nearly strike a concrete railroad bridge abutment. At that time I activated my emergency lights and sirens and attempted to conduct a stop of that vehicle. The operator of the vehicle initially refuse to yield continuing south on South Fayette Street. Verbal commands were issued over the vehicle PA system, additionally the siren was acted throughout the time, and the lights of my vehicle -- the emergency lights of my vehicle were active. After making several turns, the operator continued to drive without stopping. He drove down the middle of the roadway straddling the double yellow line accelerating to a speed between 50 and 55 miles per hour throughout. Q What was the speed limit on that road? A We were on multiple roadways. I can't tell you the speed limit exactly on each roadway we were on. Again, the driver drove straddling the double yellow line crossing into the opposing lane of traffic and driving with careless disregard for any persons or property. The operator did finally pull into a gravel 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 driveway -- the beginning of a driveway off of, I believe it is, Mainsville Road. At that time the vehicle stopped. The operator stopped the vehicle. Trooper Barbour, my partner for that evening, and I approached the vehicle immediately and initiated contact with the operator. I opened the driver's door and ordered the operator to exit the vehicle. He refused. While in contact with the operator at that time, I observed a strong odor of an alcoholic beverage about his person. Again, I continued to order him to exit the vehicle, and he did refuse. I attempted to extract him from the vehicle physically, and additionally used pepper mace while he was seated in the vehicle to extract him. Following a physical confrontation with the operator of the vehicle that lasted approximately ten minutes both inside the vehicle and outside the vehicle, he was finally handcuffed and taken into custody. After being secured and taken into custody, wallet was retrieved from his back pocket, and a driver's license identifying the operator of the vehicle as Brian Keith Kunkleman was retrieved from the wallet. Mr. Kunkleman was placed in the rear of my cage equipped patrol vehicle and transported to the Chambersburg Hospital for chemical testing. Mr. Kunkleman was taken into the triage section of the emergency room of 7 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 Chambersburg Hospital where I requested that he submit to a chemical test of blood. At 2:33 a.m. Mr. Kunkleman was read both the Implied Consent and O'Connell Warnings and requested to submit to a chemical test, at which time he refused. This was done in the company of Trooper Barbour, Trooper William Dubbs, and Trooper James Long of the PSP Chambersburg Barracks. MR. KABUSK: May I approach the witness, You Honor? THE COURT: Yes. BY MR. KABUSK: Q I'm going to show you what's marked Commonwealth's Exhibit No. 3. Would you identify that document? A This is a copy of the arrest processing sheet that I had made up. On the top of it has Implied Consent Warnings written out with a timeline; additionally, O'Connell Warnings under that with a timeline indicating both the Implied Consent and O'Connell Warnings in full. Q And you stated you gave him the Implied Consent and O'Connell Warnings? A Yes. He was actually read the Implied Consent and O'Connell before the chemical test was requested. 8 V 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 Would you read aloud what you read to him? A Section 1547 of the Vehicle Code in part reads as follows: Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle. Please be advised you are now under arrest for driving under the influence of alcohol or controlled substance in violation of Section 3802 of the Vehicle Code. I am requesting that you submit to a chemical test of blood. 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 at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence. In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(1), relating to impaired driving, of the Vehicle Code, because of your refusal, you will be subject to more severe penalties set forth in Section 9 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 3804(c), relating to penalties, of the Vehicle Code, the same as if you would be convicted of driving with the highest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.00. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing and any request to speak with an attorney or anyone else after being provided these warnings or remaining silent when asked to submit to chemical testing will constitute a refusal, resulting in the suspension of your operating privilege and other enhanced criminal sanctions if you are convicted of violating Section 3802(a) of the Vehicle Code. MR. KABUSK: May I approach the witness, Your Honor? THE COURT: Yes. BY MR. KABUSK: Q And you read that to him word for word? A Yes, I did. Q And how did he respond? A Mr. Kunkleman stated that he didn't understand, and he would not take any test until he understood. 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 Q Then what happened? A Mr. Kunkleman was allowed to go and shower and change clothes in the hospital, at which point he was returned to the triage room of the emergency room. Q Why was he allowed to shower and change clothes? A Because he had been exposed to pepper spray, pepper mace. Q And so what was the purpose of his showering and changing clothes? A The emergency room staff requested that he take a shower and decontaminate from the pepper mace. Q And did he do so? A Yes, he did. Q Then what happened? A He was returned to the triage room where again at 3:12 a.m. I again read him Implied Consent and O'Connell Warnings for a second time prior to requesting a blood test or chemical testing, and again he did refuse to take that test. Q And how did he refuse? A Again, he stated that he didn't understand, and he would not take any test. Q Did he have any apparent injuries? A He had abrasions to his face, along with 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 black and blue marks developing, and to his hands also I believe. He was complaining of pain to the ribs, pain in his abdominal area. Q Did you take his response as a refusal? A His response said he would not take the test, yes, as a refusal. Q Was he treated for injuries? A Yes. Mr. Kunkleman complained of pain to his ribs and demanded that the hospital issue him pain killers. Prior to doing that, they related to him that they were required to do a blood test to check for blood alcohol and any other drugs to make sure that there was no interaction possible. Q When did this happen? A Following the refusal, after the second refusal. Q Then was he treated? A He was seen by the hospital. He was taken for x-rays, and blood was drawn from him for testing. Q And that blood -- A That was medical blood drawn by the hospital for the purposes of a communicable disease screening and also for the testing of alcohol and drugs to make sure there was no interaction with the pain killers he was requesting. Q Did he ever submit to your request to a bloo 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 test? A No. MR. KABUSK: No further questions. THE COURT: Cross-examine. MR. KABUSK: I would move for the admission of what's been marked Commonwealth Exhibit No. 1, No. 2, and No. 3. THE COURT: They are admitted. MR. LAUER: Thank you, Your Honor. CROSS EXAMINATION BY MR. LAUER: Q Sir, when you talk about blood being drawn from Mr. Kunkleman for a communicable disease and to make sure that there was no interaction with any prescribed medication, you were one of the troopers who was actually holding his arm down? A Yes. The hospital ordered that he be restrained and he was. Q Ordered that he -- so you were holding him down so they could actually take blood from him at that time, correct? A Myself, Trooper Barbour, and two hospital security staff. Q When he originally talked about asking for medication and then there was talk about -- from the 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 hospital that they would need his blood, did someone from the hospital tell him, well, we're going to need to take your blood -- excuse me, Your Honor -- take your blood, Mr. Kunkleman, to check it for a communicable disease and to see if there's any adverse interaction? Did they tell him that? A I can't testify as to what they spoke to him about. Q Well, did you hear them say that to him when you're holding his arm down taking his blood? A He did not ask for medication. He demanded it, and they told him they would require a blood test prior to issuing him any medication. Q Where was that conversation? A In the triage room. Q And then what happened? A He was restrained and blood was drawn. Q Okay. So he didn't want his blood drawn at that time for medical purposes, correct? A Correct. Q Well, when he's saying -- when he said he didn't want his blood drawn for medical purposes, then why were they doing it because clearly the assumption would be then he's not going to get his pain medication? A He continued to demand pain medication. Q And so then you continued to hold his arm 14 a 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 down so that they could draw blood? A I didn't continue. I did when they requested, yes. Q Who else was holding his arm down? A Trooper Barbour and two hospital security staff. Q Now, the night of the arrest he was wearing shorts, correct? A Correct. Q Isn't it true, sir -- first of all, you approached his vehicle after the stop, correct? You were on the driver's side? A Yes. Q Who was on the passenger's side? A Initially Trooper Barbour was also on the driver's side, and then she went to the passenger's side. Q So both of you approached the driver's side. Were your guns drawn at that point? A No. Q Was this being videotaped, all this driving? A Yes. Q Now, you approach the door, you open up his door, correct? A Yes. Q You didn't ask him to get out, you 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 immediately grabbed him, correct? A He was ordered to exit the vehicle. Q So you open up the door, and you immediately grab him and say get out, correct? A He was told to get out of the vehicle and -- Q And before -- THE COURT: Stop. Slow down. You slow down, and you slow down. THE WITNESS: Yes, sir. BY MR. LAUER: Q You open the door. You grab him, and at the same time you are ordering him to get out? A He was ordered to get out of the vehicle first. He did not comply. I continued to order him to get out of the vehicle, at which time I grabbed him, and we began a physical struggle to extricate him from the vehicle. Q You opened the door. Do you say get out of the car? A Yes. Q What did he say? A He did not say anything at that point. He locked his hands on his steering wheel. Q Then what happened? A He was again ordered to get out of the car, and that's when the physical struggle to extricate him from 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 the vehicle began. Q How much time went by from the first order to get out of the vehicle until you get into a physical struggle where you're trying to extract him? A It was fairly quickly. Q A second or two? A Yes. Q So it's within a second or two that you open the door that your hands are on his body, correct? A No, a second or two of ordering him to get out of the vehicle. Q Your hands are then on him? A After he was ordered to get out of the vehicle and he did not comply. Q Sir, I just want to get this correct. It was within like two or three seconds tops of that door being open where your hands were on his body? A No. It was two or three seconds after him being ordered the first time to exit the vehicle which he did not even make an inkling to do. Q Let's be clear then. From the time you opened up the door, how much time went by approximately until your hands were on his body and you're grabbing him to try to pull him out? A I couldn't state for positive what the exact 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 time frame was, sir. Q Approximately. A It's on video, and it would be available to say. I can't state exactly what the time frame was. Q Wouldn't it be fair to say, sir, he had no time, no time at all, reasonable time, to get out of the car from the time that you opened up the door because your hands were on his body trying to pull him out? A No. The reasonable time would have been when the stop was first attempted to be initiated. Q I'm not talking about that time. I'm talking about the time that his vehicle stopped in motion, stopped, he had no time to even do anything from the time you opened up the door because you were pulling him out immediately, correct? A Not immediately. He was ordered to exit. did not. Q He never punched you, correct? A No. He pushed and parried away and locked his hands on the steering wheel. Q Isn't it true, sir, that you, yourself, punched him in the face or the temple at least 15 times out there? A No, it's not true. Q Isn't it true that you punched him in the 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 face or the temple quite a few times? A He was punched once in the car. When he was on the ground, I believe he was struck again possibly three times if that. Q So you think no more than three times that you punched him when he's outside of the car? A Again, I can't say for certain. It's reflected -- Q Your best recollection of that night, sir -- A Yes. Q -- is you didn't punch him more than three times when he's outside of the vehicle? A Myself, no. Q How many other people punched him then? A Nobody that I'm aware of as far as at that point when we were interacting. I can't testify what other troopers were doing while I was attempting to subdue him. Q Well, did you see other hands being thrown or fists being thrown at his head? A There was people everywhere. I mean, he was on the ground rolling around. He had his arms locked underneath himself. Q In fact, sir, when he got out of the car, he was pulled out of the car, he was immediately to the ground, correct? 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 A No. Q How much time went by from the time he's out of the car until the time he's on the ground? A Probably a few minutes because he braced himself in the fold of the door and the car. He locked himself there grasping the door frame and the door. He actually had to be pepper sprayed a second time. An ASP baton was used. He was struck in the arm to be pulled out away from the car, at which point he walked away from the car dragging both Trooper Barbour and myself. He was tripped, taken to the ground, and again the struggle ensued to have him handcuffed and taken into custody. Every time we were interacting with him, the whole time, he was ordered to stop resisting. Q He was maced in the vehicle before he even got out of the car, correct? A That's correct. Q So his reaction about trying to hold onto the door could have very well been as a result of being maced within seconds of you approaching and opening the door, correct? A No. Q How much time went by from the time you opened up the door -- THE COURT: Now, you beat this into the 20 y ? s 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 ground. He answered the question a couple times, more than a couple times. Get something new. MR. LAUER: Okay. BY MR. LAUER: Q Did you or any trooper have a taser gun there? A No. Q At all? A No. Q Did you or any trooper put something to his neck when he was in the vehicle threatening to hurt him at all? A Q correct? A Honor? photographs. No. And the video was running all this time, Yes. MR. LAUER: May I approach the witness, Your THE COURT: Yes. Show counsel. MR. LAUER: I'm just showing you some THE COURT: Are you going to mark them first? MR. LAUER: Yes, Your Honor. (Whereupon, Petitioner's Exhibit No. 1 was marked for identification.) 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 BY MR. LAUER: Q I'm showing you, sir, four photographs which we will mark as Petitioner's Exhibit 1. Do they reflect my client's face, Mr. Kunkleman? A That's Mr. Kunkleman, yes. Q In fact, his face looked like that after you and the other troopers had punched him, correct? A After he was taken into custody. Q Right. That's what he looked like, correct? A He had injuries. I can't -- there's no foundation for these photos. I don't know if these are from that incident or not. But he did have injuries to his face, yes. Q Well, when you walked up to his door, his face didn't have any bruises on it, correct? A Again, I couldn't testify to that because he was in the car. It's 1:30 in the morning, sir. Q Okay. Now, he had shorts on, correct? A Yes. Q Did you, sir, beat him in the arm with a billy club? A No. He was struck once in the arm with an ASP baton when he was holding himself, bracing himself, in the fold of the door in the car. Q So he's only struck one time with a baton? 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 He was struck one time in the arm with the baton, yes. Q Who did that? A I did that. Q So you punched him in his temple inside the vehicle one time, correct? A Yes. Q And then he's outside of his vehicle and you have a baton of which you slam into or hit forcibly to his arm, correct? A He was struck center mass of the arm, yes. Q All right. And he wasn't doing anything physical towards you at that point. He was just holding onto the door when you hit him with the baton, correct? A He was not complying. He had not been searched. His vehicle had not been secured. We didn't know if he had weapons still at that point. Q What did he do physically towards you that caused you to strike him violently with the baton to his arm when he's standing outside of the vehicle? THE COURT: The question is did he hit you? THE WITNESS: No, he did not strike me. BY MR. LAUER: Q Why did you hit him with the baton specifically? 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 THE COURT: He just told you. Next question. BY MR. LAUER: Q Did any other trooper hit him with the baton? A No. Q Now, the actual place where his vehicle came to a stop was at his residence, correct? A It was the beginning of a driveway that leads back to his residence, yes. Q What was the approximate distance that you followed this vehicle from the time that you first observed an alleged infraction of the Motor Vehicle Code to the location of the stop? A From the time I observed an infraction of the Vehicle Code, it was approximately three to six miles, somewhere in that neighborhood. Q Three to six miles? A I cannot be specific. Q Anywhere from three to six miles? A Approximate, yes. Q And the first time you observed it you're saying you're behind the vehicle and you saw his tires drift to the right of the fog line, correct? A The entire vehicle drifted to the right. Q How much of his tires actually went over the fog line the first time? 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 roadway. Q the roadway? A the roadway. Enough that the car exited the edge of the What do you mean the car exited the edge of The right side tires crossed off the edge of Q Okay. And how far were you behind the vehicle at that point? A My best recollection is probably 20, 30 yards, somewhere in that neighborhood. Q And that only occurred for about a second that this occurred the first time, correct? A On the two occasions he drifted to the right. Q Skip the first time, sir. That only occurred for about a second, correct? A Duration for him to drift over, cross, exit the roadway and drift back into his lane. Q It was about a second? A The time it takes him to do that, one to two seconds, two seconds. Q Okay. Now, I take it that's on video as well, correct? A Yes. Q And how much time went by from the time that 25 t -a e 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 this occurred the first time to the time of the second time? A Mr. Lauer, I can't state for certain what the exact time was. Q Approximately. A I observed two violations and then a third violation on top of that. I can't state for sure what the time frame was. Q Do you remember how far they were apart approximately, a mile or two miles apart? A Less than an eighth of a mile he did this. Q What was the speed limit at that location? A I believe it's 35 back through there. Q And he was doing about 35, correct? A I couldn't testify to his speed at that time because it was unremarkable. It wasn't a violation that I would have stopped him for. Q Now, was this around a curve where this occurred the first time? A No. Q How about the second time? A No. Q The lighting ...(inaudible) A I didn't hear you. Sorry, sir. Q The lighting conditions aren't very good, correct, where this occurred? 26 L s 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 don't believe there's street lights posted in that area. Q From the time where this occurred the second time, what occurred next that led you to activate your lights? A He drifted off the edge the third time nearly striking a bridge abutment. Q Well, there was construction going on at that point, correct? A No. Q Well, when you say nearly struck an embankment, what do you mean by that? A Not an embankment, an abutment. Q What do you mean by that? A His vehicle nearly collided with a concrete bridge abutment. He swerved back to the left to avoid it. Q But he never left his lane? A Mr. Lauer, he crossed the fog line, the right side tires off the edge of the roadway again nearly striking the bridge abutment. Unless they post bridge abutments in the middle of the travel lanes, yes, he had to leave his lane to do that. Q Well, how far was he from this abutment when you're saying that he nearly struck it? A Inches. 27 y s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What was his speed there at that point? A Again, it was unremarkable. It was not a violation that I would have stopped him for. Q And then you activate your lights? A Yes. After clearing the intersection of South Fayette and Old Scotland Road, I activated my emergency lights and siren. THE COURT: What township is this in again? THE WITNESS: Southampton. THE COURT: Go ahead. BY MR. LAUER: Q At no time, sir, is he exceeding the speed limit in an area where it's marked a designated speed limit, correct, even when your lights -- THE COURT: He said it was an unremarkable speed. MR. LAUER: Well, I'm talking about -- THE COURT: At any point did you see him speed? THE WITNESS: He was not cited for speeding. He accelerated to a speed of 50 to 55, but because of the conditions I'm not aware of what the speed was on the roadways that we went on. MR. LAUER: I wanted to make sure that was for the entire course of conduct. 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 BY MR. LAUER: Q After he's maced the first time in his vehicle and he's outside of his vehicle, he's maced a second time, correct? A After the physical struggle inside the vehicle, he was extricated, yes. He was pepper sprayed a second time outside of the vehicle. Q The extent of the physical struggle inside as he was holding his hands -- THE COURT: Wait. I have heard it. You have crossed him 34 times on it. I am not going to hear it again. MR. LAUER: Yes, sir. BY MR. LAUER: Q What did my client do physically outside of the vehicle to you or any trooper? A Again, he was not aggressive towards us. He just would not comply. Q So he was never aggressive? A No. He did not attempt to strike us or anything of that nature. Q What did he not comply with outside the vehicle that led him to being struck? A The orders to stop resisting, the attempts to take him into custody. 29 a ) a 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 To stop resisting. What was he doing as far as resisting when -- THE COURT: Now, he just told me over and over. You are not going to do that. You went and did that, and then you moved back to the driving. Now you are back to this and doing the same thing. No further questioning on that. He has answered your questions. MR. LAUER: Yes, sir. BY MR. LAUER: Q What were you placing him under arrest for, sir, after stopping the vehicle? After his vehicle was stopped, what were you going to place him under arrest for? A Well, the initial contact was a reasonable suspicion of driving under the influence for the careless way he was driving. Through my training and experience, it's my professional opinion after observing him, having a strong odor of an alcoholic beverage and observing his driving, that he had been incapable of safe driving, and then the fact that he was also fleeing and eluding, failing to yield to a police officer after activating both emergenc lights and siren. Q What were you going to place him under arres for, fleeing and eluding? Is that what he's being placed under arrest for? A That in combination with the fact that he ha 30 y a 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 odor of an alcoholic beverage about his person. Q Well, you really didn't even have but a second or two by the time you opened up the door to detect an odor of alcohol, correct? A Enough time to detect the odor of an alcoholic beverage. Q So you're saying as soon as you open up the door you detect the odor of alcohol? A Yes. The car had the very strong odor of alcohol and so did Mr. Kunkleman. Q The car did or he did? A The car and Mr. Kunkleman had the very strong odor of an alcoholic beverage. Q You didn't smell the odor coming from him? A Mr. Kunkleman was in the vehicle. I made contact with him. He had the strong odor of an alcoholic beverage about his person. Q No bloodshot eyes, correct? A In the time it took, I could not testify to that. It was 1:30 in the morning. We were on dark back roads, and I could not testify what his eyes looked like at that time. Q No slurred speech, correct? A Again, I could not testify to that. We beg a physical struggle very shortly after initiating contact 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 with him MR. LAUER: Court's indulgence. THE COURT: Yes. BY MR. LAUER: Q Did you ever ask him why he didn't stop for you over three to six miles? A I may have, but I never documented the reason if he did give one because he was in custody at that point. Q And I think you said from the time you -- is it from the time you get him out of his vehicle it's ten minutes before he's handcuffed? A No. The time that the physical struggle actually stops, the time of the traffic stop, until he's in custody with handcuffs on is approximately ten minutes, ten and a half minutes. Q How much time from the time you got him out of his vehicle until he's handcuffed? A I couldn't state for certain. Q He told you that he wouldn't take these chemical tests, blood tests, because he had been beaten up, correct? A No. He stated he refused because he didn't understand, and he would not take the test until he understood what was going on. Q And at least clearly, from what I have from 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 you, he was punched -- when you punched him in the temple, it was pretty hard. Would you agree with me? A I struck him in an attempt to get him out of the vehicle, yes. Q So you agree that you did -- you loaded up and hit him as hard -- THE COURT: Wait a minute. Now, wait a minute. He has told you how he punched him. Now, move on. BY MR. LAUER: Q How much force did you use -- THE COURT: He has told you. Next question. BY MR. LAUER: Q He was hurt. In fact, he suffered an injury to his head as a result of you punching him in the head, correct? A He made no complaints of pain about his head. His complaint of pain was from his ribs. Q Well, how would he have hurt his ribs out there? A Excuse me? Q How would he have hurt his ribs out there? A According to what I was told and what Mr. Kunkleman himself told us in the car during the transport, he had fractured his ribs cutting firewood on a previous incident. 33 a I. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did he talk about his ribs being hurt as a result of troopers kicking him out there? A He did not mention that. The thing that he stated in the car transported there, unsolicited from him, was that he had injured his ribs cutting firewood on a previous date. Q The previous day? A A previous date. MR. LAUER: Court's indulgence. No further questions of this witness, Your Honor. THE COURT: Anything else? MR. KABUSK: Nothing further, Your Honor. THE COURT: Sir, you may step down. THE WITNESS: Your Honor, do you need these? THE COURT: Yes, leave those. MR. KABUSK: That is the Department's case. The Department reserves the right to recall its witness. THE COURT: Any testimony? MR. LAUER: No, Your Honor. THE COURT: You rest? MR. LAUER: Yes, sir. THE COURT: Are you moving for the admission of your exhibits? MR. LAUER: Yes, sir. THE COURT: Any objection? 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 MR. KABUSK: No, Your Honor. THE COURT: They are admitted. Argument, defense, off the record. (Whereupon, argument was held off the record.) (Whereupon, the hearing was concluded at 9:45 a.m.) 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 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. 1 Q0.- C Pamela R. Sheaffer Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. __10101 Edgar B. Bayley, J Ninth Judicial Dis rict 36 c .? "' s ? ?'F ,- '_ ?,,? t- w?`?. ?- ?...• 4? _.;? LY- L"