HomeMy WebLinkAbout03-5431LORRAINE JOAN COWMAN
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-
COMMONWEALTH OF PENNSYLVANIA:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, : APPEAL
Appellee :
APPEAl, FROM ~IISPEN~ION OF OPF, RATOR~,~ PRIVII,EGE
AND NOW, comes the Appellant, Lorraine J. Cowman, by and through her attorneys, the
Law Offices of Patrick F. Lauer, Jr., Esquire, LLC, respectfully avers the following:
1. Appellant resides at 50 South 22"a Street, Camp Hill, Cumberland County,
Pennsylvania 17011.
2. The Appellant received a Notice dated October 8, 2003, that as a result of his alleged
violation of Vehicle Code Section 1547, Chemical Test Refusal, her driving privileges were being
suspended for a period of one year, effective suspension date November 11, 2003, at 12:01 a.m.
A tree and correct copy of the Notice is attached as Exhibit "A."
3. The Appellant submits that the police officer lacked a reasonable basis to request
Appellant to submit to a chemical test.
4. The Appellant submits that she did not intelligently and voluntarily refuse to submit to
a chemical test.
5. The Appellant submits her actions did not constitute a refusal.
Wherefore, your Appellant respectfully requests your Honorable Court to schedule an
evidentiary hearing on the matter.
Respectfully submitted,
P 'cka '~g'tck~--~-. LF. Lauer, Jr., Esquire, LLC
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
LORRAINE JOAN COWMAN : IN THE COURT OF COMMON PLEAS OF
Appellant : CUMBERLAND COUNTY, PENNSYLVANIA
V. ~
: NO.
COMMONWEALTH OF PENNSYLVANIA:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, : APPEAL
Appellee :
2.
3.
his client;
4.
ATTORNF,¥ Vle. RIleIC ATION
The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that:
He is the attorney for the Appellant, Lorraine Joan Cowman;
He is authorized to make this verification on her behalf;
The facts set forth in the foregoing Appeal are known to him and not necessarily to
The facts set forth in the foregoing Appeal are tree and correct to the best of his
knowledge, information and beliefi
5. He is aware that false statements herein are made subject to the penalties of 18 Pa.
C.S. 4904, relating to unswom falsification to authorities.
Respectfully submitted,
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
LORRAINE JOAN COVV~iIAN
Appellant
COMMONWEALTH OF PENNSYLVANIA:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
: LICENSE SUSPENSION
: APPEAL
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Appeal upon the
person and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the Un/ted States
Camp Hill, Pennsylvania, through first class certified mail, prepaid and addressed as follows:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104
Respectfully submitted,
Date:
Camp Hill, Pennsylvania 17011-4706
ID# 84745 Tel. (717) 763-1800
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: OCTOBER 08, 2003
LORRAINE J COWMAN WID ~ 032746187056450 001
50 S 22ND ST PROCESSING DATE 10/01/2003
DRIVER LICENSE # 22044182
CAMP HILL PA 17011 DATE OF BIRTH 02/15/1963
Dear MS. COWMAN:
This is an O~flolal Notlce of the Suspension of your Driving
Privilege as authorized by Section 15q7 of the Pennsylvania
Vehicle Code. As a result of your violation of Section 15q7
of the Vehicle Code, CHEMICAL TEST REFUSAL, on 09/09/2003:
Your driving privilege is SUSPENDED for a period of 1
YEAR(S) effective 11/12/2003 at 12:01 a.m.
WARNING: If you are convicted of driving while your
lioense is suspended/revoked the penalties will be a
MINIMUM of 90 days imprisonment AND a 91,000 f/ne AND
your driving privilege will be suspended/revoked for
a MINIMUM I year period
COMPLYING WITH THIS SUSPENSION
You must return all current Pennsylvania driver's licenses,
learner's permits, temporary driver's licenses (camera
cards) in your po.~ession on or before 11/12/2003. You may
surrender these items before, 11/12/2003, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU HAY NOT RETAZN YOUR DRZVER"S LZCENSE FOR ZDEN?ZPZCATZON
PURPOSES. However, you may apply for and obtain a photo
identification card at any Driver License Center for a cost
of 910.00. 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 wtll
until we
steps to
not recelve credlt toward serving any suspension
reoelve your licensees). Complete the following
acknowledge this suspension.
03274&18705&qSO
1, Return all current Pennsylvania driver's licenses,
learner's perm/ts 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:
Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box 6B&93
Harrisburg, PA 17106-8693
2. Upon recelpt, review and acceptance of your Pennsylvania
driver's license(s), learner~s permit(s), and/or a sworn
notarized letter, PennDOT w111 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
a~e listed at the end of this letter.
[f 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. Wrlte your driver's license number (listed on the first
page) on the check or money order to ensure proper
credit.
Follow the payment and mailing instructions on the back
of the application.
0327~61870S6~B0
APPEAL
You have the rlght to appeal this action to the Court of
Common Pleas (Civil Division) ~ithin $0 days of the mail
date, OCTOBER 08, 2005, of this letter. If you ~tle an
appeal in the county Court, the Court wtll 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 1710~-2516
Remember, t~is is an OFFZCZAL NOTZCE OF SUSPENSZON. You
must return all current Pennsylvania driver license products
to PennDOT by 11/12/2005.
Sincerely,
Rebecca L. Bickle¥, D/rector
Bureau of Driver Licensing
INFORMATION 7:00 a.m. to 9:00 p.m.
IN STATE 1-800-952-~600 TDD IN STATE
OUT-OF-STATE 717-591-6190 TDD OUT-OF-STATE
WEB SITE ADDRESS www.dot.state.pa.us
1-800-228-0676
717-391-6191
LORRAINE JOAN COWMAN, : 1N THE COURT OF COMMON PLEAS OF
Appellant : CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA, :
DEPARTMENT OF :
TRANSPORTATION, BUREAU:
OF DRIVER LICENSING, :
Appellee
CIVIL ACTION - LAW
: NO. 03-5431 CIVIL TERM
ORDER OF COURT
AND NOW, this 16t~ day of October, 2003, upon consideration of Appellant's
Appeal from Suspension of Operator's Privilege, a hearing is scheduled for Thursday,
January 8, 2004, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse,
Carlisle, Pennsylvania.
vlfatrick F. Lauer, Jr., Esq., LLC
2108 Market Street, Aztec Building
Camp Hill, PA 17011-4706
Attorney for Appellant
George Kabusk, Esq.
Assistant Counsel
~lSepartment of Transportation
Motor Vehicle & Traffic
Safety Section
Office of Chief Counsel
3rd Floor, Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Appellee
BY THE COURT,
IO-II -03
:rc
LORRAINE JOAN COWMAN,
Plaintiff
Vo
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 03-5431 CIVIL TERM
ORDER OF COURT
AND NOW, this 8th day of January, 2004, after careful
consideration of Appellant's Appeal from Suspension of Operator's
Privilege, and following a hearing, the appeal is denied, and the
suspension of driving privilege imposed by the Pennsylvania
Department of Transportation by official notice having a mail date
of October 8, 2003, is affirmed.
By the Court,
~mp hi±±, PA 17011-4706
For the Appellant
~eorge Kabusk, Esquire Assistant Counsel
Department of Transportation
Motor Vehicle & Traffic
Safety Section
Office of Chief Counsel
3rd Floor, Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
For the Appellee
pcb
LORRAINE JOAN COWMAN,
Appellant
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
:
: NO. 03-5431 CIVIL TERM
TRANSCRIPT OF PROCEEDINGS
Proceedings held before the HONORABLE J. WESLEY OLER, JR.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on January 8, 2004, in Courtroom Number 1.
APPEARANCES:
Patrick F. Lauer, Jr., Esquire
Joseph D. Caraciolo, Esquire
For the Appellant
George H. Kabusk, Esquire
For the Appellee
FOR COMMONWEALTH
Douglas S. Hockenberry
Kevin Michael Myers
Douglas S. Hockenberry
(Recalled)
Kevin Michael Myers
(Recalled)
INDEX TO WITNESSES
DIRECT CROSS REDIRECT RECROSS
3 15 59 63
62
63 ......
82 88 92 --
95 96 103
INDEX TO EXHIBITS
FOR THE COMMONWEALTH
1 - Refusal
2 - Breath ticket
3 - Breath ticket
4 - Certificate
5 - Calibration
6 - Videotape
MARKED
ADMITTED
11 13
73 105
73 105
77 77
77 79
86 87
FOR THE APPELLANT
1 - Photo 19 105
2 - Photo 19 105
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January 8, 2004
Carlisle, Pennsylvania
THE COURT: This is the time and place for a
hearing on Appellant's Appeal from Suspension of Operator's
Privilege in the case of Lorraine Joan Cowman versus
Commonwealth of Pennsylvania, Department of Transportation, at
No. 03-5431 Civil Term. We will let the record indicate that
Appellant is present in court with her counsel, Patrick F.
Lauer, Jr., Esquire, and the Appellee is represented by George
Kabusk, Esquire. Mr. Kabusk.
MR. KABUSK: Yes, good morning, Your Honor.
THE COURT: Good morning.
MR. KABUSK: By official notice dated October 8,
2003, the Department notified Lorraine J. Cowman, Operator's
No. 22044182, that as a result of her violation of Section 1547
of the Vehicle Code, related to chemical test refusal on
9/9/2003, her driving privilege was suspended for a period of 1
year. The Department now calls Officer Hockenberry.
DOUGLAS S. HOCKENBERRY,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Hockenberry, please state your full name
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1 and spell your last name
2 A Officer Douglas S.
3 H-O-C-K-E-N-B-E-R-R-Y.
4 Where are you employed?
5
Q
had occasion to investigate
about September 9, 2003?
A Yes, I have.
for the record.
Hockenberry,
Q
incident?
hours,
Would you please tell the Court about that
A Yes. I worked the daylight shift from 0730 to 0715
to roughly 3:15 to 3:30. I am assigned to the school
detail at South 24th and Chestnut Street between the hours of
7:15 and 8:30, and again at approximately quarter to 3:00 to
3:30, 3:15. I direct traffic at the intersection of South 24th
and Chestnut Street to make sure the traffic flows properly and
crossing the children at that
school.
I was
about 1500 hours,
section,
doing that duty on September 9,
or a quarter to 3:00 I should say I
at my position on South 24th and Chestnut Street. We
sign that we place out on South 24th Street to advise
the kids from the
2003, roughly
arrived
have a
that that
is a one-way street from Chestnut Street to Yale Avenue so no
traffic can flow southbound. The sign is like an orange
I am a police officer for the Borough of Camp Hill.
During the course of your official duties, have you
an alleged incident of DUI on or
1 bi-fold sign that sets on the roadway in the crosswalk area and
2 it advices it is a one-way school zone area. That sign is
3 placed out so no traffic can go down that way, because parents
4 and teachers park on both sides of the roadways and the kids
5 cross the traffic, it is impassible to have two cars going
6 north and southbound.
7 I placed that sign out when I was standing on the
8 corner of the sidewalk, and at which time I observed a gray or
9 silver sedan that was traveling west on Chestnut Street. The
10 vehicle stopped at the stop sign and proceeded to turn left on
11 to South 24th Street. I noted that that is the intersection I
12 had blocked as one-way, so that vehicle would have been
13 traveling in the wrong way.
14 I noted that the vehicle crossed over and was
15 actually in the northbound lane, then over into the southbound
16 lane after the sign. I began to walk out on to the sidewalk --
17 or off the sidewalk on to the crosswalk area to stop the
18 vehicle. I noticed that the vehicle wasn't stopping. I
19 started to yell at the vehicle to stop.
20 As I walked out on to the roadway, the vehicle
21 continued to drive until it stopped in front of the main
22 entrance of the high school. I was walking down the middle of
23 the street yelling at the vehicle to stop. The vehicle did
24 pull over, as I stated, I approached the driver's side of the
25 vehicle, identified myself, and asked the driver for driver's
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1 license and registration and proof of insurance.
2 I advised her this is a one-way street, that she
3 was not allowed to go down during the school hours. She
4 advised me that she didn't know that. I asked her where she
5 was heading today. She advised she was
6 Elementary School which is located on ^
right down the
going to the Hoover
Dickinson Avenue and
street from there, to pick up
South 24th Street,
her daughter.
Again, I asked for her driver's
registration, proof of insurance.
THE COURT: You will have to slow down.
A I am sorry.
THE COURT:
A
license and
Thank you. Go ahead.
She began to search her pants pockets or shorts
pockets for her driver's license. I noted that she had to at
least twice to look for her driver's license in her shorts
pocket, and she advised that she must have left her license at
home.
I asked her for her registration and insurance
card. She began to search through her pants pockets again
which at the time she gave me a wallet with her Pennsylvania
driver's license in it. I asked her to take out the driver's
license from the wallet which this officer noted she had some
difficulty taking out the license. I asked her again for the
registration and insurance, she began to look in the glove box
1 and she provided me a packet of information, including the
2 registration and insurance card, but there was other documents
3 that were in it.
4 This officer could detect an odor of an alcoholic
5 beverage emanating from the vehicle as she spoke. I noted that
6 her eyes were glassy in appearance, and she appeared to have
7 like a gaze as she was speaking to this officer.
8 I asked her where she was coming from today and she
9 advised home. I asked her if she had anything to drink. First
10 she advised no. She advised that she was actually coming from
11 the Cafe On Market from a birthday party where she had
12 something to drink.
13 She was asked to step from the vehicle so I could
14 perform standardized field sobriety tests to her. She complied
15 with that. As she was walking from her vehicle to my parole
16 car, it was parked on the corner of 24th and Chestnut Street,
17 noticed she kind of had a stagger as she walked up the street.
18 As we were walking at the corner of my patrol
19 vehicle, again, Mrs. Cowman, who is sitting next to Mr. Lauer,
20 in the blue and green sweater, she was the operator of the
21 vehicle, she advised that she was going home. I said, well,
22 thought you were going to pick up your daughter at Hoover
23 Elementary School, and she was like, oh, yeah, I was.
24 I did perform the standardized field sobriety test
25 to her, and upon completion of that I offered her a preliminary
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breath test. At first she agreed to take the test, and then
she refused. At which time when I asked her to take the
preliminary breath test, she was seated in the rear of my
patrol vehicle. At which time after she refused the
preliminary breath test, I advised her that she was under
arrest for Driving under the Influence of alcohol to a degree
that she could not safely operate a motor vehicle and asked her
to step from the vehicle. At which time I started to bring out
my handcuffs. She advised that she was not going to be
handcuffed and she made her arms stiff and attempted to pull
away from this officer inside the vehicle.
I then got her outside the vehicle and I did
handcuff her in the front and transported her to the Carlisle
Booking Center here in Carlisle for a chemical test of her
breath.
BY MR. KABUSK:
tests?
Q Officer Hockenberry,
A
did you perform field sobriety
Yes, I did.
What was her performance on those tests?
I performed the one leg stand. I noted that she
raised her right leg during the test, and she placed her foot
down on counts 4 and 6, she swayed during the test. And when
she got to No. 13, she started counting 13, 14, and 15.
I also administered the walk and turn test, it was
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noted that
during the walking stage.
heel to toe, out and back,
the waist level.
test.
Q
she could not keep her balance. Started too soon
She missed every toe -- every step,
and raised her arms approximately to
I also performed the horizontal gaze nystagmus
What did you conclude after each of those field
sobriety tests that you performed?
A That I believed that she was under the influence of
alcohol or a controlled substance.
Q Her performance on each of those tests, was that
considered to indicate that she was under the influence?
A
Yes.
Then you stated that you told her she was under
She
Q
arrest?
A
Q
A
That's correct.
What did you tell her?
I offered her the preliminary breath test.
initially said she would take it, and then she sa-id that she
didn't want to take it, at which time I advised her she was
under arrest and I asked her to step from the police vehicle.
Q
on her?
Under arrest for what?
Driving under the influence of alcohol.
Then you stated you eventually placed the handcuffs
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1 A
2 Q
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4 Q
5 A
6 Michael Hoke, to come to
7 started the standardized
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Yes, I did.
In your police vehicle?
Yes, I did.
Then what happened?
At that point I notified my supervisor, Sergeant
the scene. It was right before I
field sobriety tests because of the
kids crossing. I had an assistant principal from the high
school stand by her vehicle because she had two other people in
there, a five-year-old and another male subject and after --
before I left, I made sure that those kids and her daughter was
to be picked up from the Hoover Elementary School. After I
made sure of all that, I transported her to the Carlisle
Booking Center.
Q Then what happened?
A We arrived at the Booking Center at approximately
13:31 hours or 3:31, and she was released in the custody of
Agents Kevin Myers and Tonya Rowe, R-O-W-E, both of the
Cumberland County District Attorney's Office.
A 20 minute observation period was done, and this
officer read to Ms. Cowman the DL26 implied consent form to her
on video advising her of the refusal.
MR. KABUSK: May I approach the witness, Your
Honor?
THE COURT: Certainly.
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(Cormnonwealth's Exhibit No.
identification.)
BY MR. KABUSK:
1 marked for
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4 Q I am going to show you what has been marked
5 Commonwealth's Exhibit 1, would you identify that?
6 A This is a chemical testing warning, the report of
7 refusal to submit to chemical testing as authorized by Section
8 1547 of the Vehicle Code. This is the form that I filled out
9 at the Carlisle Booking Center, which I read to her, and I
10 signed and she signed that she has been advised of this
warning.
Q
A
Would you read allowed what you read to her?
Yes. Please be advised that you are now under
arrest for driving under the influence of alcohol or controlled
substance prudent to Section 3731 of the Vehicle Code. I am
to a chemical test of your breath.
is too fast, you need to slow down.
From the very beginning, sir?
THE COURT: Yes.
Please be advised that you are now under arrest
requesting that you submit
THE COURT: It
Why don't you start again.
A
A
for
driving under the influence of alcohol or a controlled
substance prudent to Section 3731 of the Vehicle Code. I am
requesting that you submit to a chemical test of breath, which
I circled breath on this, it says it is the officer's choice
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for the chemical test. It is my duty as a police officer to
inform you that if you refuse to submit to the chemical test,
your operating privilege will be suspended for a period of 1
year.
The constitutional rights you have as a criminal
Defendant, commonly known as Miranda rights, including the
right to speak with a lawyer and the right to remain silent
apply only to criminal prosecution and do not apply to the
chemical testing procedure under the Pennsylvania Implied
Consent Law, which is a civil, not a criminal proceeding.
11 Ygu have no right to speak to a lawyer or anyone
12 else before taking the chemical test requested by the police
13 officer nor do you have a right to remain silent when asked by
14 the police officer to submit to the chemical test.
15 Unless you agree to submit to the test requested by
16 the police officer, your conduct will be deemed to be a refusal
17 and your operating privilege will be suspended for 1 year.
18 Your refusal to submit to the chemical testing
19 under the Implied Consent Law may be introduced into evidence
20 in a criminal prosecution for driving while under the influence
21 of alcohol or a controlled substance.
22 I verify that I have read the above warning to the
23 motorist regarding the suspension of their operating privilege
24 in giving the motorist an opportunity to submit to the chemical
25 testing. I signed the said form and dated it and had Ms.
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Cowman also sign it and date that she has been advised of this
warning.
Honor.
MR. KABUSK:
May I approach the witness, Your
THE COURT:
MR. KABUSK:
been marked Commonwealth Exhibit No.
the Petitioner's attorney.
MR. LAUER: No objection.
THE COURT:
admitted.
Certainly.
I move for the admission of what has
1. I provided a copy to
Ail right, Commonwealth Exhibit 1 is
BY MR. KABUSK:
Q
You stated that the Petitioner did sign the form?
Yes, she did.
Then after you read that DL26, then what happened?
Agent Myers of the Cumberland County District
Attorney's Office administered the DataMaster Intoxilyzer to
her. I was present during the test.
Q Do you know what the results were of the test?
A From my notes here, my report, the first test was
invalid. Agent Myers explained the test again to Ms. Cowman.
MR. LAUER: I am going to object unless he was
present and actually heard that.
A Yes, sir, I was present during this.
THE COURT: All right. Go ahead.
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1 A This test was invalid. Agent Myers explained the
2 test again to Ms. Cowman and at or about 1605 hours the test
3 was administered again, which was invalid.
4 Agent Myers explained the test again and advised
5 Ms. Cowman that if this test was invalid it would be a refusal.
6 The third test was given at or about 1611 hours,
7 which, again, was invalid. This officer advised Cowman about
8 the loss of her driver's license for 1 year if the test was a
9 refusal. A fourth test was given to Cowman at or about 1618
10 hours, which was invalid and deemed a refusal.
11 While in the Booking Center this officer requested
12 Ms. Cowman to go for blood as a second test. Cowman refused
13 the blood test and this officer advised that the breath test
14 would then be deemed a refusal.
15 This officer left the Booking Center and proceeded
16 back to the Camp Hill Borough and probably went as far as
17 McDonald's or Burger King, I am not sure what this road is, but
18 right outside the courthouse, turned around, came back to the
19 Booking Center and went back upstairs and asked Ms. Cowman
20 again, since the Carlisle Hospital was around the corner, if
21 she would be willing to go to the Carlisle Hospital for a blood
22 test for this, at which time she advised that she believed that
23 she did enough and that she wasn't going.
24 BY MR. KABUSK:
25 Q
When you returned to the Booking Center, why were
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you
requesting her to submit to a blood test?
A
Yes, I was.
Q Why were you doing that?
A Why, because she was offered four tests for the
DataMaster, they came up invalid. As I was standing there, I
was watching the DataMaster, the reading was going up, and it
went up to 0.223 percent, and I asked her to go for the blood
then.
say?
it.
Q Then after
MR. LAUER:
you asked for the blood, what did she
Objection, he has asked and answered
THE COURT: I am not sure I did hear the answer
exactly. Go ahead, Mr. Kabusk.
BY MR. KABUSK:
Q Do you recall what she said?
A Not verbatim, but I believe she said that she did
enough, that she wanted to go home, she wasn't taking it.
Q Do you know if that incident was on videotape?
A To the best of my knowledge, the Booking Centers
are videotaped during DUI and other incidents.
MR. KABUSK: No further questions.
THE COURT: Mr. Lauer.
CROSS-EXAMINATION
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BY MR. LAUER:
Q Sir,
correct, did you
A Yes,
you have looked at the DataMaster printouts,
look at the DataMaster printouts?
the day when I took Ms. Cowman up there, they
were all printed out,
and the originals in my packet.
Q Now, her appearance at the
was the same as it was at the scene,
For the most part.
A
and I did receive copies of them that day
Booking Center basically
correct?
Right, the way she looked physically and acted
hadn't really changed then, correct?
A
had more
Center.
No, I would have to change that, I believe that
of a gaze on the scene then she did at the Booking
she
Q
Other than that say?
I would have to say no.
Is everything in your affidavit of probable
cause
that you filed in the criminal case the same as what you
testified to here about what she said and did at the scene?
A I am not sure, I don't have my probable cause
affidavit with me.
BY MR.
MR. LAUER:
THE COURT:
LAUER:
May I approach,
Certainly.
judge?
A Can you be more specific on your question, Mr.
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Lauer.
Q
accurate
A
A
Regarding what she said at the scene, is that
in your report as to what she said in your affidavit?
THE COURT: In the affidavit?
MR. LAUER: Affidavit of probable cause.
Just give me a minute to read over that.
MR. LAUER: Sure.
There is one section
on here that I did not add in
the probable cause master, to submit to the preliminary breath
test. She at first initially said yes, and then she refused,
that is the first thing I noticed.
BY MR. LAUER:
Q That is not in there, is it?
A No, it is not, I don't add that in, in my criminal
complaint.
Q Anything else about her statements that is not
accurate in the affidavit of probable cause?
A The other thing that I note is at the very end when
I came back to ask her for the second blood test when she said
that she believed that she did enough and that she wasn't going
for blood. There could be other things I am not picking out
right now too.
Q Had you documented anywhere that she denied that
she was drinking at all that day? Because in your affidavit
you have nothing in there indicating that she denied drinking
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at all that day, correct? In fact, your affidavit says that
she told you she had been drinking earlier at Cafe On Market?
A No, I do not have that document, but I know that
she told me that.
Q
Is it documented anywhere that she denied drinking
A
of bi-fold indicating this was a one-way street,
A That is correct.
Q What you originally said is that
intersection, correct,
placed, correct?
No, it is not.
What you told the judge is that you had some kind
correct?
is placed in the
that is where it is supposed to be
24,
A In the intersection?
Q In the walkway?
A On the walkway is where I put it.
Q That is where it is supposed to be, right?
A Yes.
Q At the time that she is making a left-hand turn on
that sign was not in the walkway, correct?
A No,
Q Isn't it
A No, sir.
Q Where was
A I
it was in the walkway.
true, sir, it was on the sidewalk itself?
it in the walkway?
usually place it between the second and third,
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each time it varies, but it is in the walkway. It is on the --
it would be the southbound lane of 24th street.
Q I will show you some photographs. Can I approach,
judge?
THE COURT:
as exhibits?
Certainly.
Did you want these marked
MR. LAUER: Yes, Your Honor, if I could.
(Appellant's Exhibit Nos. 1 and 2 marked for
identification.)
(Discussion held off the record.)
THE COURT: We will take a recess in this case and
reconvene.
the
Commonwealth of Pennsylvania.
BY MR. LAUER:
(Recess.)
THE COURT: We will let the record indicate that
Court has now reconvened in the case of Cowman versus
Mr. Lauer.
Q
school zone,
Q
sign?
A
white and I
Q
Sir, what did the sign say?
I believe it says one-way school zone, to not enter
I believe one-way school zone.
One-way school zone, and what is the color of the
It is an orange folded sign, I believe the front
think it is orange in front.
So it is an orange sign with white letters?
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A No.
Tell me what color are the letters?
A That I am not sure.
Q What is the color of the background?
A I believe it is white.
Q A white background. You don't
of the letters were?
A I don't recall at this time.
Q Again, what does it say?
A I believe it says one-way school
Q There is only one sign, correct?
A That is correct.
Q Is there an arrow on it?
A No, sir.
Q
know what the color
zone.
At the time of this incident, you were standing on
the sidewalk talking to some people, correct?
A That is correct.
Q The only way I would know that is if my client told
me, because I wasn't there, correct?
A I am not sure how you --
Q Well,
agree with me?
that would be a proper assumption,
I am not sure.
A
would you
Okay. Now, how many people were in the vehicle?
I believe three.
Q
A
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Q
A
a female;
Q
A
Three people. Now, were they male or female?
Obviously, it was your client, Mrs. Cowman, who is
and I believe there was two other males.
Two other males.
A five-year old male -- it would have been by the
name of Michael Reed, and the five-year old would have been a
Patrick Cowman.
Q Okay. You did not see the vehicle Ms. Cowman was
in even actually come up to the stop sign, you only see it
after she made the left-hand turn into the intersection,
correct?
A
intersection of 24.
Q
attention,
A
Q
I seen it as it was turning left into the
As the vehicle was turning, that draws your
she is traveling, and then you yell, correct?
That is correct.
Okay. So you were not standing there with your
hand up telling her not to make the turn prior to her making
correct?
the turn,
A
Q
That is correct.
In fact, you weren't even looking at the vehicle
prior to its making this turn, correct?
A Correct.
Q When did you start using this sign at this
intersection?
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A
out there
correct?
A
Q
tell me what
A
Street at
Q
A
Q
That would be a couple years ago.
A couple years ago you Started~putting this sign
on a temporary basis just during school periods,
where my client made the left-hand turn,
A That's Correct.
During the school hours.
Showing you Appellant,s Exhibit No. 1. Can you
that photograph depicts?
This is the stop sign hitting westbound on Chestnut
South 24th Street.
In Camp Hill?
That is correct.
So the intersection where you are standing and
Correct?
Q How tall is this sign?
A Probably about maybe 2 to 3 feet. 2 feet.
Q 2 feet tall?
A Roughly.
Q 24 inches tall. How wide is this sign?
A To be honest with you, I am not sure.
Q How big are the letters?
A I don't know, I don't have the measurement for
that.
Q Do you have a photograph of the sign?
A No, I do not.
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Q Are you still using the same sign today as what you
were using on the time in question?
A Yes.
Q She made the
if she used a turn signal
actually do that?
left-hand turn, you couldn't even say
or not because you didn't see her
A I just seen her as she was entering the
intersection.
Q Nothing indicating that she was driving carelessly
by the way -- the speed of the vehicle, correct?
A That is Correct.
Q Nothing indicating that she was endangering anybody
by the way she was operating it, correct?
A
street --
Other than going down the wrong way on the one-way
Q From 3:00 to 3:15 --
THE COURT: Let him finish his answer or the record
will be confused. Go ahead and finish your answer.
A Other than her turning down the posted one-way
Street and traveling in the northbound lane of travel
southbound.
BY MR. LAUER:
Q Well, every day of the week -- this road is
two-way street basically 23 hours a day, Correct?
A No.
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Q How many hours a day is it blocked where you can't
go both ways on this street?
A
7:15. And depending on the traffic flow and the kids,
usually take it down by 8:00 or a quarter after 8:00.
in the afternoon I arrive there sometime between 2:30 and 10
minutes of 3:00 which it is up and it stays there until I leave
the school detail Sometime between 3:15 and 3:30.
Q So how many hours a day is this posted where you
can't go both ways up and down the street?
A How many hours a day is it posted --
Q Yeah?
I arrive at the school detail at approximately
I
And then
A -- that you cannot go --
Q Right.
A Roughly two hours --
Q Two hours?
A -- an hour and a half to two hours.
Q All right. So 22 hours a day you can go both ways
up and down the street, correct?
A That is correct.
Q At the time that she was traveling and made the
left-hand turn, there were no kids in the intersection,
correct?
A
There was no kids crossing the street --
Correct. In fact, there were no kids walking
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across the street in front of the school where her car actually
stopped, correct?
A
and made the
A
Q
A
A
school was letting out.
Q So right when she was
was letting out, correct?
I believe so.
I believe right as probably when I got her the
stopped is when the school
So at the time the vehicle was
turn, there were no people in the street,
I did not see any people --
Right.
-- in the street when she was driving.
So 22 out of 24 hours a day it
ways up and down the street, correct?
A It is a two-way street.
Q Right. Now, showing you photograph No. 2,
tell the judge what that depicts for the record?
A The same intersection, Chestnut Street
24th Street, looking southwest.
Q Isn't it true, sir, that
that this sign was, in fact,
vehicle made the turn?
in motion and moving
correct?
is safe to go both
can you
and South
you testified on direct
on the sidewalk at the time her
A No, I don't believe
Q Okay.
A I can show you where I
I stated that.
put the sign out, Mr. Lauer.
25
1 Q
2 A
3 Q
4 A
5 Q
6 the sign was?
7 A
8 Q
9 A
10
I am sure you can, in a minute I will ask that.
Okay.
Who were you talking to then?
I am not sure.
Please put an x on Appellant's Exhibit No.
where
I can only show where it is roughly at, I can't --
Right, I understand.
We usually place it between the second and third
crosswalk intersection there. See where I placed the X.
11 Q Okay. I asked you to put it on Appellant Exhibit
12 No. 1, not Appellant's Exhibit No. 2.
13 A I apologize. I can't do that.
14 Q Why not?
15 A Because the intersection that I placed the stop
16 sign is cut off by your photograph.
17 Q Okay.
18 A May I see Exhibit No. 2 where I placed the X at?
19 Q Yes, that is correct.
20 A Can I see that again?
21 Q Yes, sir.
22 A Yeah, this is the proper intersection because this
23 would have been Chestnut Street that is going east and west,
24 and South 24th Street is going north and south.
25 Q That is where you always put the sign?
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1 A I always put the sign on that because I mainly do
2 the school crossing Monday through Friday, I am scheduled
3 Monday through Friday, except one day a week that I am
4 scheduled at the fire house. And I am the person that is
5 assigned to that school detail.
6 Q So Appellant's Exhibit No. 2, put a Y on here where
7 you were standing.
8 A (Witness complies.)
Q The observations that you made or what you told the
judge here which led you to believe and what you said on direct
was either that she was either under the influence of alcohol
or a controlled substance, correct?
A That is correct.
Which one was it, alcohol or a controlled
Q
substance?
A
Q
alcohol or a
A
Q
I couldn't tell that.
So you don't know if she was under the influence of
controlled substance is what you are telling me?
She refused both tests, I couldn't tell you.
So is it your testimony then that you were going to
ask her to submit to a blood test to determine if she was under
the influence of a controlled substance?
A No, sir.
Q Well, a breath test will not determine if you are
under the influence of a controlled substance, correct?
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A That is correct, because as I stated, I could
detect an odor of an alcoholic beverage, she admitted to
drinking to me and she went for the breath test.
Q I will just ask you to answer my questions. If he
wants to ask you something additional, we will go from there,
okay.
A Okay, Mr. Lauer.
Q Follow those rules. So the answer to my question
is you don't know whether she was under the influence of
alcohol or a controlled substance, correct?
A I believe she was under the influence of alcohol.
Q Before you said it was either alcohol or a
controlled substance, correct?
A I was stating that from the Vehicle Code.
Q So what you said then was not accurate, correct?
A I was stating that I believe she was under the
influence of alcohol.
a controlled substance
Q
She may have been under the influence of
also.
So it may have been one or the other,
what
you are saying right now then, correct?
A Well, my conclusion at that date, she
alcohol.
Q
what you said as far as opinion.
was one or the other, correct?
according to
consumed
Okay, she consumed alcohol, but I am asking you
You have the opinion that it
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Q It may have been one
may have been the other, correct?
It could have been both.
or may not have been one, it
correct?
The way she spoke she showed no sign she was
A I am not sure.
Q Okay. Her speech was clear,
A That I can recall, yes.
Q
impaired to the point she couldn't drive by the way she spoke,
correct?
10 A I am not sure what you are asking on that.
11 Q You know how people talk when they may be impaired,
12 slurred words, incomprehension, mumble, thick tongue?
13 A I didn't detect any slurred speech on her.
14 Q You didn't detect a thick tongue either, right?
15 A I believe her speech was normal.
16 Q Normal?
17 A Well, normal as a regular person. I didn't detect
18 any irregulars in her voice or her speech.
19 Q But the way she spoke she showed no sign she was
20 impaired to the point she couldn't drive by the way she did
I don't think speech is -- there is a -- everything
totality of driving under the influence.
Totality, I am dealing with one, speech.
I can't determine that, Mr. Lauer.
21 that, correct?
22 A
23 you take in
24 Q
25 A
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okay?
Q
Ail right. Her eyes were not bloodshot, correct?
They were glassy in appearance as I stated.
The question was, they were not bloodshot though,
A No, they were not.
Q Okay. Remember the rule that we had,
question and you answer that one, okay?
A (Witness nods head affirmatively.)
yes, right?
Q You shook your head,
A Yes, I do.
Q Because if a person
I ask you a
10
11
12 test and they don't follow instructions, someone can say, well
13 you flunked the test or you are impaired because you didn't
14 follow instructions, right?
15 A That is correct.
16 Q Just because you don't follow instructions doesn't
17 mean you are impaired, correct, because we have done that a
18 couple times already today, right?
19 A Yes, I am not impaired.
20 Q I mean the instructions that I asked you to follow,
21 you didn't follow those, correct? Right?
22 A That is correct.
23 Q So she didn't follow instructions at the scene on
24 the coordination test may not mean she was impaired, correct?
25 A No, I believe that she was impaired at the scene.
is asked to do a coordination
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Q Okay. A person can make a mistake if they weren't
looking at the sign and go down that road, that wouldn't
necessarily mean they were impaired, correct? If 22 hours a
day they can go down that street and they don't see the sign
and they do it, that one chance wouldn't mean you are impaired
by doing that, correct?
MR. KABUSK:
and relevancy.
THE COURT:
BY MR.
Objection, Your Honor, hypothetical
I will permit the question.
LAUER:
Q Just because you go down this road where you have
sign on that one occasion would not necessarily mean you
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12 this
13 are impaired just by doing that, correct?
14 A No, but that was the reason that I stopped her.
15 Q I understand that is the reason you stopped her,
16 but that wouldn't mean you were impaired because you did that,
17 correct?
18 A I did not know she was impaired when she was making
19 a left-hand turn.
20 Q So the answer to the question would be a person can
21 do that and that wouldn't mean they are impaired, right?
22 A That is correct.
23 MR. KABUSK: I had made an objection to that
24 question regarding relevancy, and it is a hypothetical which is
25 not applicable to this matter.
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BY MR.
THE COURT:
MR. LAUER:
THE COURT:
LAUER:
Your objection is noted but
Court's indulgence.
Certainly.
Q
What type of vehicle was she in, sir?
It was a gray or silver sedan.
Approximately how wide is that vehicle,
not asking you exactly?
A I have no clue.
Q 6 or 8 feet wide probably?
A I don't know, sir.
Q You are a police officer,
police officer
Since 1996.
You are trained to observe things,
A
A That is correct.
Q You observed it,
A Yes, sir.
Q How wide is this
left-hand turn?
MR. KABUSK:
overruled.
and I am
how long have you ~een a
right?
you saw this vehicle, right?
road, sir,
where she made the
Your Honor,
of this questioning. It is persisting. We are dealing here
with reasonable grounds, not probable cause. I would ask for
an offer of proof of this line of questioning regarding how
wide the road is.
object to the relevancy
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THE COURT: Ail right, Mr. Lauer.
MR. LAUER: It goes to, judge, as to what he
observed, because there is a big dispute on the way she drove
the vehicle which goes to his reasonableness to believe that
she was impaired because that was part of his basis for asking
her to submit to a chemical test.
to license and registration, her
she appeared.
Her driving, her mannerisms
coordination test, and the way
THE COURT: You may ask the question.
BY MR. LAUER:
Q Now, the crosswalk --
THE COURT: Well, I don't think there was an answer
to the question.
BY MR. LAUER:
Q
A
MR. LAUER: Okay.
How wide is the road?
I am going to have to take a guesstimate on this,
because I am not real accurate on lengths, it is a two-lane
roadway with parking on -- it should be on the north side. I
am going to estimate it is somewhere between 20 and 25 yards.
I am estimating, I have no clue.
THE COURT: Yards or feet?
A I am going to have to estimate yards. As I said,
have no clue, Your Honor, either way, to say something that I
am not familiar with.
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BY MR. LAUER:
side
Q
So you don't know how wide it is?
I can't give you an estimate on that.
You walk across the sidewalk every day,
Yes,
Well,
right?
I do. I don't measure the distance --
how long does it take you to walk from one
of the street to the other, approximately?
A Again, I have no idea. I am not going to give you
an answer that I am not aware of.
Q You have been a police officer --
A Can I estimate, would that --
Q Yes.
A -- be okay with you? Is that okay,
Let's use this courtroom --
THE COURT: If you don't know how wide it is, I
think we should just move on to something else.
BY MR. LAUER:
judge?
the other?
A
Q
A
Q
jury would sit over,
Q For this courtroom as a reference,
from one wall to the other to get from one
would you say it
street side to
I don't believe so.
Okay, so it is shorter distance than that?
I would have to say yes.
At least, if I am walking from one galley where
I am walking 1, 2, 3, 4, 5, 6, 7, 8, 9,
the
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10, about 15 feet, correct?
A Roughly, yes.
Q So it is about 15
A As I stated,
feet or a yard estimate,
Mr. Lauer.
Q
question.
BY MR. LAUER:
Q
the school,
A
feet wide?
I am not aware. I can't give you a
yes, that is how high or wide it is,
Our best estimate is about 15 feet wide.
THE COURT: Well, he has done his best with that
Cars park on both sides of the street in front of
correct?
They are -- there is a section there that is
I placed the sign.
painted yellow and it goes from one corner to the another,
which there was usually no cars parked on that section at that
time.
Q Where the yellow is?
A That is correct.
Q But on that street other than where it is yellow,
cars park on both sides of the street?
A That is correct.
Q Okay. According to you on the date in time on
Appellant's Exhibit No. 2, you put an X and a Y, the X where
you put this marker, right?
A That is roughly where
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1 Q
2 so people
3 A
4 Q
5 evasive action when she made
6 sign, correct?
A No,
southbound.
Q
Pretty much here because you want to put it there
can't go down the street, correct?
That is correct.
Right. On the date and time she didn't take any
the left-hand turn to avoid the
she traveled in the northbound lane heading
So you are telling me that she did then?
No, if I can show you on this --
No, are you telling me that she dodged the
make the turn?
A No,
Q
A
that?
sign to
she cut the corner short.
How far was her vehicle from the sign when she did
A few feet.
Was there any traffic coming the other way?
No, sir. Not at the time she made the turn.
I
believe as she was going closer to the stop, there was a car
coming northbound.
Q Sir, isn't it true that -- in fact, I am going to
show you Appellant's Exhibit No. 1, where there is a little
blue barrel there, not saying that that is the sign -- that on
the date in question that is where your sign was and you are
mistaken on that?
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A No, that is actually the northwest corner. I get
my sign from this doorway which is in at the school, it sits
right around the corner. I get it out in the morning. When I
am done with the morning, I set it outside, and when I come in
the afternoon, I pick it up from the outside and I bring it and
I put it on that spot. I usually wait in my car or on the
corner from where the kids come out. I never place the sign
where this blue bucket is on the northwest corner of 24th and
Chestnut, never.
Q Why weren't you standing in the intersection to
prohibit vehicles from doing what you didn't want them to do?
A Because I am there to direct traffic, I stand in
the center of the intersection. Once the kids come out or when
there is cars that back up on the intersection, to make the
traffic flow quickly to make sure the kids get across the
sidewalk safely.
Q How long did her vehicle stay in the northbound
lane when she made the turn?
A
breath test,
A
Q
Just a few seconds.
Then she came back into her lane?
That is correct.
You said that you asked her to submit to a portable
correct?
Preliminary breath test, yes.
The person doesn't have to do that, correct?
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A
No, they do not.
Did you tell her she didn't have to do it?
I didn't make her do it.
Did you tell her she didn't have to do it?
Yes, I said, will you submit to a preliminary
breath test, she said,
she didn't want to do it,
Q How long did
license?
A
Q
yes. I got the machine out. She said
and I said that was fine.
it take her to give you the driver's
A minute or so.
How long did it take her to get the registration
and insurance to you?
A From the time that I walked up to the vehicle --
Q Yes?
A -- or from the time that she gave --
Q From the time that you asked for the
and insurance?
the --
A
It was a few minutes.
One or two minutes?
registration
From the time I asked her for the first time for
Q
how long did it take for her to get it out and give it
Yes?
-- registration or the other times?
From the time that you asked for the registration,
to you?
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A
Q
A
Q
A
Q
right?
A
Q
A
her vehicle face to face, from the time that you started
talking to her and asking her, how long did it take you to get
the license and registration and insurance in your hands?
A few minutes.
Ail three of these things within a few minutes?
Yes.
Okay. She didn't drop any documents, correct?
None that I can recall.
You asked her to exit the vehicle, right?
Yes.
She didn't lean against the car when she got out,
The first time or the second time?
Let me come back, from the time that you came up to
she showed no signs
she couldn't drive by the way she
No, she did not.
The way she exited the vehicle,
she was impaired to the point
exited the vehicle, correct?
A She just got out of her vehicle. I did not note
anything out of the ordinary from her exit.
Q So the answer to the question would be the way she
exited she showed no signs she was impaired to the point she
couldn't drive, correct?
A I did not note anything.
Q So the answer would be yes. If you didn't note it
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and you are trained to observe those things, so you would agree
with me then she showed no signs she was impaired to the point
she couldn't drive by the way she exited?
A That is correct.
Q Now, then you asked her to walk over to your police
car, correct?
A That
to
car on
there,
Q
A
Q How long did
your car?
A A few seconds.
Q
A
is correct.
Were you to the right of her or to the left or her?
I don't recall.
it take her to walk from her car over
I can show you where she parked her
A few seconds?
Sure.
So it didn't take long to walk from her car to get
Q
so it is not a very wide street then, right?
When I say a few seconds, I mean probably
A
a minute.
Q Less than a minute to walk 15 feet?
A No, she wasn't stopped right there,
in front of the high school doors.
less than
she was stopped
Q When you asked her to do those coordination tests,
there were a lot of people around there, correct?
A Not where I was performing the test at, no.
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Q
Q
A
Hope was
Q
done?
A
Q
tests?
A
Q
There were people around, correct?
There were people on the opposite side of the
yes.
street and people crossing the roadway,
Watching her, correct?
I am not sure if they were watching her or not.
Were you the only officer present?
No, I was not.
Who was the other officer?
I believe by the time I got there Sergeant Michael
there.
Was Hope present when the coordination tests were
I believe he took over my school detail.
So he had nothing to do with the coordination
Not that I can recall.
He was watching that and wouldn't have been
watching you I guess, correct?
A I am not sure what he was doing.
Q Now, she didn't bump into you when
where her car was to get over to your police car,
she walked from
correct?
She didn't lose her balance when she walked across
correct?
What do you mean by lose her balance?
A No.
Q
the street,
A
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Q
Trip over anything?
She did not trip.
She didn't stumble, correct?
Stumble, meaning going forward?
Yes.
No, she did not.
She didn't stagger when she walked from one
side to
the other as well,
A
Q
A
Q
correct?
Yes, she did.
What do you mean by stagger?
She had a sway as she walked.
So rather than stagger, you mean her body movement
from left to right when she walked, correct?
A No, I believe that she -- it appeared to me that
she could not walk in a straight line as we were walking toward
the car.
Q So what she didn't do was walk in a perfectly
straight line from one side of the street to the other?
A No, I don't mean that, Mr. Lauer.
Q That is what you just told me, she didn't walk in a
straight manner.
A I mean as she walked she was kind of side to side
as she walking --
Q From the side --
THE COURT: You need to let the witness finish the
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answer
A
to cross
the corner, and I just noted that as she was walking,
of staggered as she walked from point A to point B.
BY MR. LAUER:
Q Now,
or the record will be confused. What is the answer?
I mean as she was walking from her vehicle, she had
the street to where my police vehicle was parked on
she kind
when I asked you what that meant and what you
said was she went
A
Q
A
Q
A
staggered.
Q
what she did.
right across
A
Q
little bit from right to left,
a
Are you demonstrating that or
No.
-- is that what you are asking?
No. Go ahead, sir.
As I stated, she was going towards --
correct?
she
I know you used the word staggered.
When she got out of the car, was
directly parallel to it?
No.
When she got out of her car, did she have to walk
I want to know
your police car
to her left or her right or straight to get to your police car?
A She walked sort of northeast from her car to my
patrol vehicle.
Would that been to her right or to her left?
From where she was parked at, depending how you are
If you are facing southbound, it would have been to
Q
A
standing.
43
1 her left or your north --
2 Q What would she be facing, the rear of your vehicle?
3 A Yes.
4 Q Okay. So when she got out, she would be walking
5 towards the left rear corner of your vehicle?
6 A Yes.
7 Q If she was starting from a straight line from where
8 she started, looking at the rear of your vehicle, if she was
9 starting from where she did from her vehicle, facing the left
10 rear of her vehicle, where did she end up when she got to the
11 end of walking?
12 A To my vehicle.
13 Q So she did go in a straight direction to your
14 vehicle, correct?
15 A Yes.
16 Q Okay. She walked the same speed as you did,
17 correct?
18 A I was walking with her.
19 Q Right. Now, you didn't ask her if she had any
20 medical or physical problems as far as asking her to do the
21 coordination test, correct?
22 THE STENOGRAPHER: Please, repeat the question.
23 THE COURT: We will take a short recess to give the
24 stenographer a rest. Please try to slow down. We are in
25 recess for about ten minutes. Mr. Lauer.
44
1 (Recess.)
2 BY MR. LAUER:
3 Q Officer Hockenberry, when you testified on direct
4 Mr. Kabusk asked you to read a form that you read to my client
5 on the night in question. Do you remember that?
6 A Yes.
7 Q The judge for the court reporter's sake asked you
8 to slow down, correct?
9 A Yes.
10 Q When you testified, you testified and read very
11 slowly, correct, so that you complied with the judge, do you
12 remember that?
13 A Yes.
14 Q Clearly that night when you read this to my client,
15 you read it about the same speed as what you originally were
16 testifying to, to my client, correct?
17 A I was just reading the form.
18 Q In the same speed that you originally read it or
19 approximately initially and then the judge asked you to slow
20 down, correct?
21 A Approximately, yes.
22 Q When you read her the form, the Section 1547 of
23 this form, chemical test warnings, what you said is I am
24 requesting that you submit to a chemical test of breath and
25 then you circled breath, correct?
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A
correct?
A
Q
correct?
A
Q
Yes.
That is the test that you were asking her to do,
Yes.
And she signed that and consented to take it,
Yes.
At no time did she ever say she would not take a
breath test,
A
Q
machines
A
correct?
That is correct.
that
Q
you have offered into evidence
Dealing with the samples, have you seen these
operate before, these breath test machines?
Yes, I have seen them in use.
Would you not agree with me that on the one test
it started at 1618 and
printed out a result,
A
anything.
printed out a ticket at 1620, correct?
I don't have the paperwork, I didn't introduce
MR. LAUER: These were offered.
KABUSK: Not yet.
MR.
BY MR. LAUER:
Q The Commonwealth's breath test tickets, the one
here starts at 1618 and it printed out at 1620, correct?
A To be honest with you, I have no working knowledge
of the machine. The only thing that I can verify off of this
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is that it says 1618 and it says invalid at 1620. Other than
that, I have no working knowledge of the machine.
Q You have no knowledge of how the machine works, you
are not an operator, you don't know what any of that means,
right?
A That is correct.
Q Did you do the field sobriety test in front of your
vehicle or behind your vehicle?
A It would actually be to the side of it.
Q She would have walked from the street up to the
sidewalk, correct?
A
Q
curb?
A
Q
correct?
A
Q
A
Q
A
Q
Yes.
She would have stepped up from the street to the
Yes.
She didn't lose her balance when she did that,
No.
Did no stagger?
No.
Did not raise her arms, correct?
Not that I noted.
What was the second test that you had asked her to
do on the sidewalk?
A I did all three tests on the
sidewalk.
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1 Q What was the second one you asked her to do?
2 A To be honest with you, I am not sure which order
3 they went in. I know that I did the horizontal gaze nystagmus
4 first, but I am not sure which is the second.
5 Q What was the third test?
6 A I am not sure, I didn't know what the second was.
7 Q So you don't know what the second or third test in
the order that they were given?
That's correct.
You weren't even taking notes about how she did on
A
that test,
A
Q
A
Q
A
correct, at the scene?
Yes, I was.
You were taking handwritten notes?
Yes, I believe I was.
On a piece of paper?
I believe so.
Was it a note pad?
MR. KABUSK: Your Honor, objection to this line.
THE COURT: I am going to sustain the objection.
Do you still have the notes?
A I have my blue card, Your Honor, I am not sure if I
have the note in my case file or not, I would have to check.
THE COURT: Ail right.
BY MR. LAUER:
Q
What you said was you believe you took notes. You
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can't say for certain that you, in fact -- you did take notes
at the specific time she was doing the test, correct?
A Your Honor, is that the objection that you
sustained --
Q Sir, you are not to talk to the judge.
object, okay? Those are the
Isn't it true,
notes, you can't, in fact,
that, correct?
A Yeah,
He can
rules that we have.
sir, you said you believe you took
say you did take notes when you did
I know I took notes when I did that.
Q On the walk and turn test,
for her to walk on, correct?
A Correct.
Q When she took her first nine steps, would she have
been going towards the front of your vehicle or towards the
rear of your vehicle?
A Towards the front.
Q Towards the front, so she would have been facing
24th Street?
That is correct.
Facing all the people that were up on the
things of that nature,
A
Officer Hope directing traffic,
there was no actual line
A
correct?
corner,
correct?
That is where 24th or Chestnut Street is.
Correct. Now, you asked her to take nine steps,
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A
A
Q
sidewalk,
A
Q
steps?
A
Q
Yes.
She took nine steps, correct?
Yes.
She actually did this test on the crack in the
correct?
That I am not sure.
She counted out loud when she walked the nine
Yes.
Which way did you tell her to turn when she got to
the ninth step, to the
A I told her
foot and take nine pivot steps back.
Q If she did that which way would she be turning, to
the left or to the right? Let the record reflect that the
officer is taking time to write on a piece of paper so he knows
which way it would be.
A Your Honor,
couldn't tell you.
THE COURT:
MR. LAUER:
THE COURT:
MR. LAUER:
THE COURT:
BY MR. LAUER:
left or the right?
on her ninth step to pivot on your lead
I don't know which way she turned, I
Any other questions, Mr. Lauer?
Do I have any other questions?
Yes.
Yes.
Ail right.
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1 Q So if she was
2 which way would she turn,
3 A I am not sure.
4 Q You are not sure?
5 A I told her to take nine heel
lead foot, pivot and take small steps around,
heel to toe steps back.
supposed to do it as you told her,
to the left or to the right?
to toe steps out her
and take nine
Q
her first?
heel
test.
Are you trained at giving this test?
Yes, I am.
Which foot did you tell her to put out in front of
A Place your right foot in front of your left foot
to toe and stay in that position until I instruct the
Q
A
right?
A
Q
A
Q
A
Q
A
Right foot in front of the left, right?
Yes, sir.
The first step would be with your left foot,
That is correct.
The second would be with your right?
Yes.
Third left?
Yes.
Fourth right?
(Witness nods head affirmatively.)
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Q Fifth left, sixth right,
right, ninth would be your left foot,
A Yes.
Q According to you,
should they turn then?
the ninth step.
A Pivot on you lead
in a circle.
Q
seventh left, eighth
right?
your instructions, which way
Left foot is in front of the right on
foot and take small steps around
How did you tell her to pivot?
THE COURT: Mr. Lauer, I am going to assume she
didn't do anything wrong other than what the officer said she
did, whether she turned to the right or to the left, I will
assume there is nothing wrong with the way she turned.
MR. LAUER: I understand that.
BY MR. LAUER:
Q Which way did she turn or which way was she
supposed to turn?
A I am not sure.
Q
Okay. You are trained how to give the test, but
supposed to turn to the right or to
Your Honor, this may be a relevant
your are not sure if she is
the left?
MR. KABUSK:
line of questioning for the DUI. We are in a refusal hearing,
the standard is not probable cause. We are dealing with
reasonable grounds. I will read to you a statement from the
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case of Dreisbach, 363 A.2d 870, what reasonable grounds is:
Quote, The test, however, is not very demanding. We note
initially that for reasonable grounds to exist, the police
officer, obviously, need not be correct in his belief that the
motorist had been driving while intoxicated, we are dealing
here with the authority to request the person to submit to a
chemical test and not with the admission into evidence of the
result of such a test. The only valid inquiry in this issue at
a de novo hearing is whether viewing the facts and the
circumstances as they appeared at the time, a reasonable person
in the position of the police officer could have concluded that
the motorist was operating the vehicle under the influence.
THE COURT: Mr. Lauer.
MR. LAUER: I agree with everything Mr. Kabusk just
said, but one thing Dreisbach doesn't say is that you can't
cross-examine an officer on what he testified to on direct, and
what Mr. Kabusk would agree with is that the reason he puts up
the field sobriety test which goes to the reasonableness of the
officer at the time.
the officer told her
direct, I would submit
THE COURT:
Now, the only thing I am asking is what
to do and what she did. He put it on
respectfully what she did is relevant.
I agree what she did is relevant, but
think we are belaboring this particular point.
MR. LAUER: Reasonableness to the officer at the
time, judge, if he doesn't even remember or know how she is
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1 supposed to do it,
2 officer to his opinion?
3 THE COURT:
4 objection.
5 BY MR. LAUER:
Q Sir, when she turned,
correct?
THE COURT:
how can that relate to reasonableness of the
Ail right. I am going to sustain the
she didn't raise her arms,
As I said, I will assume she did
nothing untoward or improper or indicating lack of coordination
other than what the officer testified she did do.
BY MR. LAUER:
Q Sir, without looking at your notes, you testified
on direct what she did wrong, right?
A That is correct.
Q You prepared to come in here to testify, correct?
A Correct.
Q You spent time going over this with the
Commonwealth, correct?
A I spoke to the attorney this morning.
Q You as an officer would want to be prepared, you
would know what
A
Q
That is the
she did wrong, right?
That is correct.
What did she do wrong on the field sobriety test?
last question on that issue.
MR. KABUSK: Your Honor, could we have the
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stenographer read back what he said?
MR. LAUER: If he can't remember it, she can.
THE COURT: Mr. Lauer indicated this is his last
question, so I will permit this question.
BY MR. LAUER:
Q I have your notes in front of me now.
testified you prepared to come here,
the walk and turn tests?
A She started too soon, she stepped out of stance,
she missed heel to toe steps every -- nine out, nine back,
she raised her arms to waist level.
Q How far were her heels from her toes?
A Further than a half an inch.
Q One centimeter over, a half inch?
A Oh, I couldn't tell you. I am estimating what
is, further than a half inch.
Q She didn't follow your instructions is
telling me, correct?
A That is correct.
Q Like you didn't
times, correct?
You
what did she do wrong on
going to be
and
it
what you are
follow instructions in here several
THE COURT: Now, Mr. Lauer, you indicated this was
your last question.
MR. LAUER: On the field sobriety test.
THE COURT: Ail right. What other questions do you
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have?
BY MR.
LAUER:
Q You took her to where to ask her to take a breath
test?
A
courthouse.
Q
To the Carlisle Booking Center here at the
To Carlisle. She got out of the police car and
walked into the Booking Center fine,
A
Q Fine, correct,
A Yes.
Q No staggering,
walking in there, correct?
correct?
She walked into the Booking Center.
right?
swaying, problems with coordination
A
that unless the officer
that she did not.
BY MR.
I did not note any.
You are trained to look at those things, right?
THE COURT: Again, Mr. Lauer, I am going to assume
said she did anything uncoordinated,
LAUER:
Q After you were done at the Booking Center, you took
her in the car,
right?
A
Q
A
you walked her back out to the police car,
No.
How did she get back out to the police car?
She didn't.
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Q
She never left the Booking Center with you?
No, she did not.
She kept asking you about her children before you
even left 'the scene in front of the school what was going to
happen to her son, correct?
6 A Yes.
7 Q You wouldn't tell her, correct?
8 A That is not true.
9 Q What did you tell her?
10 A That was my main concern was for the well-being of
11 her children, her child, and the other persons in the vehicle.
12 As I testified, I had an assistant principal stand by the car,
13 and I made sure that there was a phone call made to Hoover
14 Elementary School so her daughter was not standing outside
15 waiting for her and that somebody was coming to pick her up
16 that was responsible.
17 Q Did you tell that to my client?
18 A Yes, I did.
19 Q Where did you tell her that?
20 A I told her that at the scene.
21 Q At the scene. You told the judge you then wanted
22 her to go in for a blood test, correct?
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A
specifically were requesting her to take
That is correct, I offered her the blood test.
You never had her fill out a form where you
a blood test, correct?
57
1 A No, I did not.
2 Q You did not tell her when she told you she wouldn't
3 take a blood test, you never told her you don't have the right
4 to talk to a lawyer, correct?
5 A No, I did not.
6 Q You didn't tell her she didn't have the right to
7 talk to anybody else, correct?
8 A No, I did not.
9 Q You didn't tell her when she said I am not going to
10 take the blood test that that could be introduced, the blood
11 test section, not the breath test, that that could be used
12 against her in a criminal prosecution, correct?
13 A Yes, I did.
14 Q That part you did?
15 A I advised her -- I am going to paraphrase -- I told
16 her that she would lose her license for the 1 year, and it
17 would be deemed a refusal.
18 Q That is what you told her?
19 A Yes.
20 Q The question was: You didn't tell her that refusal
21 to submit to the blood, not the breath, that refusal to submit
22 to that blood test would be used against her in a criminal
23 prosecution,
24 A
25 Q apply
correct?
I don't believe I told her that.
Right. You didn't tell her Miranda warnings
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to the blood test section when you were
blood, correct?
A No,
MR.
asking her to go in for
I did not.
LAUER: That is all the questions
THE COURT: Mr. Kabusk.
I have.
BY MR. KABUSK:
Q Officer,
REDIRECT EXAMINATION
regarding the breath test, did you inform
her that her actions regarding the breath test constituted a
refusal?
A
Q
Yes.
What led you to that belief?
MR. LAUER: I object to that, judge, because,
number one, he has testified that he is not trained in this
machine, nor two, nor was he the operator of the machine and he
knows nothing about the workings of the machine.
THE COURT: Ail right, the objection is noted but
overruled.
A What was your question again?
BY MR. KABUSK:
Q What led you to the belief that her actions
regarding the breath test constituted a refusal?
A To the best of my knowledge, it was not an ample
breath sample taken from the machine which came up invalid.
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Q
Agent Myers was operating the instrument, correct?
That is correct.
Did you tell her, the Petitioner, that you were
waiving the refusal when you offered to take her for blood?
A .Yes, I believe I did. I believe that I told her
that I am offering her to go for blood.
Q Didn't you tell her also that you were extending a
courtesy --
MR. LAUER: Objection, leading, he can ask her what
he told her.
THE COURT: Sustained.
BY MR. KABUSK:
Q What did you tell her regarding your offer of the
blood test after she completed field sobriety tests in the
Booking Center? Didn't you come back in?
A I came back and I advised her that Carlisle
Hospital is right around the corner, that I could take her to
the blood -- for a blood test and she advised that I have done
enough, something to the effect, I have done enough, I want to
go home.
Q
A
Q
But you didn't need to do that, did you?
No, I don't believe so.
Did you tell her why you came back to do that?
MR. LAUER: Objection, irrelevant.
THE COURT: The objection is noted but overruled.
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1 A Yes, because of the invalid samples of the four
2 breath tests that she did, I offered her the breath for the
blood; and that I also noted that the
stated earlier,
MR.
a .223 percent.
LAUER: Objection,
instrument went to, as I
irrelevant.
THE COURT: The objection is overruled.
BY MR. KABUSK:
Q Did you consider her performance on the breath test
as a refusal?
A Yes, I did.
Q When you came back, was that merely a good,
gratuitous offer to take her for blood?
A Yes.
Q So when you left the Booking Center, you had
considered her performance to be a refusal, correct?
That is correct.
So when you came back for the blood it was merely
A
gratuitous?
A
Q
Yes.
Did you ever tell her that you were revoking her
initial performance and considering
A No, I don't believe so.
correctly back to -- I came
offer to take you for blood,
refused twice for blood.
it not to be a refusal?
If I can remember
in and said, listen, I am going to
and that is when she refused. She
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Q
So the second offer was merely of good faith?
Yes.
Not because you had any beliefs --
THE COURT: That is too much of a leading question.
MR. KABUSK: No further questions.
THE COURT: Anything further, Mr. Lauer.
MR. LAUER: Yes.
RECROSS EXAMINATION
BY MR. LAUER:
Q You said based upon the sample that you thought it
was gratuitous. Are you aware that invalid tests, according to
the operator's manual, could mean this, that the start test
button was pushed at the wrong time, the evidence card was
pulled from the printer, or the instrument's pump inadequately
purged the sample chamber, the instrument canceled the test,
are you aware if that is a possibility?
A I have no knowledge of the workings of the machine.
Q So the answer would be no. Were you aware that
when a card prints out invalid sample that it could be that the
subject's breath sample contains a residual amount of alcohol?
MR. KABUSK: Could I ask where he is getting this
information.
MR. LAUER: From the operator's manual, the
Intoxilyzer 5000.
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BY MR. KABUSK:
Q Do
test?
A
DataMaster.
REDIRECT EXAMINATION
you know what instrument was used for the breath
Yes, it was not the Intoxilyzer 5000, it was the
So
THE COURT:
MR. LAUER:
THE COURT:
MR. KABUSK:
it was DataMaster?
Are you done, Mr. Lauer?
Yes.
Okay. Mr. Kabusk.
I was pointing out that he was reading
from the Intoxilyzer manual, what was used was actually a
DataMaster, those are two different instruments, Your Honor.
THE COURT: Do you have any questions for the
witness?
A
MR. KABUSK: No, Your Honor.
THE COURT: Ail right. You may step down.
Thank you, judge, and I apologize for going fast.
THE COURT: That is all right. Mr. Kabusk, do you
have any further witnesses?
MR. KABUSK: Agent Myers.
THE COURT: Ail right.
KEVIN MICHAEL MYERS,
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having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Agent Myers, please state
last name for the record.
A Kevin Michael Myers, M-Y-E-R-S.
Q Had you been employed by the Cumberland County
District Attorney's Office?
A Yes, I had.
Q In what capacity?
A I was a processing agent for the District
Attorney's Office at the Central Processing Department.
Q During the course of your official duties on or
about
of an
Q
incident?
A
Q
A
Q
A
Q
administer
your name and spell your
September 9, 2003, were you involved in the investigation
alleged incident of DUI on about Septe~er 9, 2003?
A Yes, I was.
Were you the breath test operator involved in the
Yes, I was.
Are you a certified breath test operator?
Yes, I am.
Do you have your certification here with you?
They are on the file of the officer.
What breath test instrument were you using to
the chemical test?
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1 A
3 instrument
4 A
5 Q
A
Q
The BAC DataMaster.
At the time of the incident was the breath test
certified as accurate?
Yes, it was.
Is the certification on file here?
It is on file also, the calibration also.
At the time of the incident was the breath test
6
7
8 instrument calibrated?
9 A Yes, it was.
10 Q At the time of the incident issue was the breath
11 test instrument that was in service for use in this incident
12 functioning properly?
13 A Yes, it was.
14 MR. LAUER: I object to this as leading.
15 THE COURT: Well, was it operating properly, I am
16 not sure that is a leading question. I will overrule the
17 objection.
18 BY MR. KABUSK:
19 Q Did the Petitioner inform you of any physical or
20 medical conditions that may have prevented her from properly
21 performing the test?
22 A No, not that I recall.
23 Q Did the Petitioner exhibit any symptoms that would
24 indicate the presence of a physical or medical condition that
25 could have affected her ability to perform the test?
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1 A No.
2 Q Was the videotape made contemporaneously with the
3 requested breath test?
4 A Yes.
5 Q Could you tell the Court what happened when you --
6 regarding this incident?
7 A Officer Hockenberry brought her into the Processing
8 Center. I checked her mouth to make sure she had nothing in
9 her mouth. Then I began a 20 minute observation. During the
10 20 minute observation she asked to use the rest room. I had a
11 female agent as my partner, so I had Agent Rowe observe her as
12 she was going to the restroom.
13 Upon completion of the 20 minute observation,
14 Officer Hockenberry advised her and read her the implied
15 consent form. Upon completion of reading that, she had signed
16 and agreed to take the test. And then I entered all of her
17 information to the BAC DataMaster, let it run through its tests
18 and began to give her -- try to gain a breath sample from her.
19 During the first test she was stopping and
20 starting, stopping and starting while she was blowing. I
21 advised her that I needed one continuous long breath.
22 Actually, prior to me giving her the test, I explained
23 everything to her, how to take the test, and what would happen
24 if she could not perform the test.
25 Q What did you explain to her, what did you tell her?
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1 A I explained to her that she needed to place the
2 mouthpiece in her mouth, make a complete seal around the
3 mouthpiece with her lips and blow like she is blowing up a
4 balloon. I told her that she needs to blow until I tell her to
5 stop. And during the first test she stopped and started,
6 stopped and started, and the instrument printed out the ticket
7 as invalid sample, and it was due to her not blowing properly
8 into the instrument.
9 I then advised her again on how to take the test,
10 what was going to happen if she could not perform the test.
11 Q What did you say to her?
12 A I again advised her that she needed to make a
13 complete seal around the mouthpiece and blow like she is
14 blowing up a balloon until I tell her to stop.
15 Q Then what happened?
16 A As she was blowing this time she was not getting a
17 proper amount of breath into the instrument which caused an
18 invalid test again.
19 Q Then what happened?
20 A I advised her again that I would give her another
21 breath test. Explained to her how to take the test again. We
22 normally only give two tests, but I felt that I would give her
23 another test, another chance to take the test. So I explained
24 to her how to take the test again. I said, it needed a
25 complete seal around the mouthpiece. Blow like you are blowing
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1 up a balloon, blow until I tell you to stop. Again, she could
2 not perform the tests and could not gain adequate amount of air
3 and blow into the instrument correctly.
4 Q You are saying she could not perform the test, how
5 is that or how was she not performing the test?
A She was not blowing hard enough into the instrument
and not blowing until I told her to stop.
Q
stop.
A
Q
Was she following your directions?
No, because I told her to blow until I tell her to
A
going to be considered a refusal and I also did too.
What was she doing?
Stopping and starting, stopping and starting.
Then what happened?
Then Officer Hockenberry advised her that it was
And
Officer Hockenberry wanted to have another test, to give her
another chance to take a test. So on the fourth test I gave
her another test, but prior to that I explained how to take the
test again. I explained to her that she needed to make a
complete seal around the mouthpiece, blow like she is blowing
up a balloon and blow until I tell her to stop. Again she
stopped before I told her to stop.
Q As a result of her stopping before you told her to
stop, what happened?
A We gained the fourth invalid test on the
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instrument.
Q
A
What does invalid signify?
That there is not enough air,
getting enough air sample for the test.
to be a long continuous breath of air.
Q
A
be a test
Q
A
Then what happened?
that it is not
For the test it needs
That is when I advised her that this was going to
refusal.
Then what happened?
I advised her of her Miranda warnings and she began
answering -- she answered all the questions and then I -- upon
completion of the questioning, I gave her the standard field --
had her get a chance to take the standard field sobriety test.
Q Then what happened?
A She completed the standard field sobriety test.
Q Then what happened?
A And then she was fingerprinted, photographed and
completed the rest of the processing for the criminal charges
against her for DUI. Then she was released to West Shore Taxi
at 5:15 at night.
Q Do you recall Officer Hockenberry returning to the
Booking Center?
A Yes, that was on videotape.
Q Were you there at the time when he returned?
A Yes.
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Q
A
Hospital was close by and that he would take
Hospital for a blood test. She did not want
What happened when he returned?
He returned and stated to her that the Carlisle
her to Carlisle
to go.
Q Did the Petitioner ever provide two consecutive
6 adequate breath samples?
7 A Negative.
8 Q So she did not?
9 A She did not.
10 Q What is required for an adequate breath test?
11 A Two breath samples.
12 Q What did you conclude from her performance of the
13 breath test?
14 A That she could not provide an adequate sample of
15 breath into the instrument to complete the test.
16 THE COURT: When you say could not, that implies to
17 me that some physical problem was preventing her from doing it.
18 Is that what you are saying?
19 A I didn't find any physical problems about her. I
20 had her blow into the instrument one time where she was able to
21 give a good enough breath but then she stopped before I told
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her to stop.
THE COURT:
what do you mean exactly?
A I guess I should have
So when you say she could not do it,
said would not do it.
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THE COURT: Anything further, Mr. Kabusk?
BY MR. KABUSK:
Q Once again, did she exhibit any physical symptoms?
A No.
Q Was she following your directions?
A No.
Q What was she doing wrong?
A She was not -- I was telling her to make a nice
complete seal around the mouthpiece and blow until I tell her
to stop. She was stopping -- blowing before I was -- I told
so it was not getting enough air into the
her to stop,
instrument.
Q
A
Honor.
Did the instrument print out tickets?
Yes, it did.
MR. KABUSK: May I approach the witness,
Your
THE COURT: Certainly. Has Mr. Lauer seen those
two items?
MR.
BY MR. KABUSK:
LAUER: I have seen those.
Q I am going to show you the originals. Are these
fair representations of those originals?
THE COURT: You asked: Are these fair
representations of the originals and there was no answer.
A Yes.
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BY MR.
KABUSK:
Q Are they photocopies
A Yes.
Q
of those originals?
You gave her how many tests?
Four.
You number these tests, correct?
That would be on the times.
Which is the first test that you gave her?
The first test would be at 1557 I began the test.
What does the ticket indicate?
The ticket indicates that the internal standard was
verified and working properly, external standard,
through the simulator, the simulator was reading
which is run
.100, and it
runs through a blank test,
it came up invalid.
Q What does
A
and then I had the subject blow and
invalid indicate?
Invalid indicates that it was not getting enough
breath into the instrument, that it could not read the alcohol
or the breath of air.
Q
You gave her a second test, correct?
That's correct.
What would that ticket be?
That ticket would have been at 1605 hours.
What does that test indicate?
Same as the first.
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Q
A
the same.
Q
A
Q
A
A
Q
tickets,
A
You gave her a third test?
Yes.
What does that indicate?
That ticket was at 1611,
and the ticket indicates
1 Q
2 A
3
4
5
6 You gave her a fourth test?
7 That is correct.
8 What does that indicate?
9 Invalid also.
10 What time did that start and stop?
11 1618, and it stopped at 1620.
12 You say that is how you identified the various
13 by the times?
14 By the times, that is correct.
15 MR. KABUSK: Can I have these marked Commonwealth
16 Exhibit Nos. 2 and 3, please.
17 (Coramonwealth's Exhibit Nos. 2 and 3 marked for
18 identification.)
19 THE COURT: For the record, I believe two items
20 have been marked as exhibits, but the witness has not said what
21 they are by the number.
22 BY MR. KABUSK:
23 Q I am going to show you what has been marked
24 Commonwealth Exhibit No. 2, would you identify that?
25 A That is also the tickets.
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Q
A The first one and --
and the last ticket.
Q So on Exhibit No.
last test?
A
Q
A
What tickets would they be?
it would be the first ticket
2 you have the first test and the
The first and last.
On Commonwealth Exhibit No. 3 you have?
The second and the third.
MR. KABUSK: I move for the admission of what has
been marked Commonwealth Exhibit No. 2 and 3.
MR. LAUER: The breath test tickets, I am going to
object right now, judge, on the admission of those into
evidence on the basis that the Commonwealth has not provided me
any documentation, at least at this point, from a certificate
of operation nor have they laid any foundation on the accuracy
and calibration documents at this point in time.
THE COURT: Are you in agreement that at least the
tickets show an invalid test?
MR. LAUER:
THE COURT:
Right.
I will accept them for that purpose. I
wouldn't accept them for the readings that they show. They are
not accurate tests, so I don't think the readings mean
anything.
MR. KABUSK: Your Honor, I did have the
Petitioner -- the witness testify regarding the operation of
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the machine, and we do have those here, if there is a question
regarding that.
THE COURT: Do you want those particulars admitted
to show the alcohol content of her breath?
MR. KABUSK: No.
THE COURT: Because that is what Mr. Lauer is
objecting to, he doesn't want those results to come in because
they weren't valid tests and I think you are not submitting
them for that purpose anyway.
MR. LAUER: I think he is submitting them to show
that it says invalid test, and the reason they are invalid is
because she gave an insufficient sample. The objection is for
that purpose, I need a certificate of operation to show, number
one, that this machine -- that he is a certified operator, and
that two, the accuracy documentation and calibration to show
that this machine itself was a proper machine to be used.
THE COURT: Do the tickets say insufficient sample?
MR. KABUSK: No, they say invalid. The witness,
the booking agent testified invalid is as a result of her
not -- I will ask him once again.
THE COURT: Well, he said that they were invalid
because there was an insufficient sample given. I think all
you are introducing these for is to show the time of the tests
and the fact that the tickets say invalid result, not
insufficient sample.
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sample,
breath is a refusal, that is why I
THE COURT: Okay, well,
MR. KABUSK: Well, an invalid is an insufficient
therefore, they gave her four chances. Insufficient
am admitting those.
then you will have to have
the agent testify as to his qualifications and
certificate and so forth.
MR. YJ~BUSK:
Honor.
THE COURT:
BY MR. KABUSK:
Q Agent Myers,
certificate,
A This
operator, type A,
show the
May I approach the witness, Your
Certainly.
I am going to hand to you a
mentioned person
effective this
Kevin M. Myers.
THE COURT:
MR. KABUSK:
submit it?
Exhibit No.
would you please indicate what that is?
is a certificate, certified breath test
alcohol test equipment. It says the above
is qualified to operate the BAC DataMaster
19th day of July 2001. This is certifying that
That has been marked as an exhibit?
May I make a photocopy of that and
MR. LAUER:
MR.
4.
THE COURT:
don't we get that copy and get it marked and proceed
I have no objection to that later on.
KABUSK: That would be marked as Commonwealth
May I approach the witness, Your Honor.
Rather than get this all confused, why
from
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there.
We will take a short recess.
(Recess.)
(Commonwealth's
identification.)
THE COURT:
resume at 1:30.
BY MR. KABUSK:
Q
please?
A
Exhibit Nos. 4 and 5 marked for
We will continue on until noon and then
Commonwealth Exhibit No. 4, would you identify that
This is the certification as a certified breath
Myers is a
test operator, this is to certify that Kevin M.
certified breath test operator.
MR. KABUSK: I move for the admission of what has
been marked Commonwealth Exhibit No. 4.
Mr. Lauer.
I wanted to make sure we have the right
THE COURT:
LAUER:
No objection to that, Your Honor.
THE COURT: Ail right, Commonwealth Exhibit
MR.
serial number.
admitted.
BY MR.
4 is
KABUSK:
Q Then you were asked regarding the calibration and
Was the instrument
accuracy of the instrument that was used.
certified as accurate and calibrated?
A Yes.
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Q I am going to show you what has been marked
Commonwealth Exhibit No. 5. Is that a photocopy of the
original and does the
A Yes.
Q What does
A
original have a seal on it?
that indicate?
This indicates that the calibration was completed
on the 6/12 of '03,
Q
A
Q
A
the ticket,
and accuracy 8/25/03.
For the instrument in question?
That is correct.
How can you tell it is the same instrument?
Serial numbers 200217, it is printed at the top of
and it is also printed right here. This is a
certificate of breath test accuracy completed by Matthew
Stoner.
Q
calibration?
A
Q
A
Q
A
Are there two certificates there, one for
One for calibration, one for accuracy.
Were they, indeed, certified as accurate?
Yes.
And calibrated properly?
Yes.
MR. KABUSK: I move for the admission of what has
been marked Commonwealth Exhibit No. 5.
THE COURT: Mr. Lauer, is there any objection to
the admission of Commonwealth Exhibit 5?
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MR. LAUER: No, sir.
THE COURT: Ail right, Commonwealth Exhibit 5 is
admitted.
BY MR. KABUSK:
Q The videotape was made of the incident, correct?
A That is correct.
MR. KABUSK: Your Honor, I have the videotape here.
It is approximately 30 minutes. We can save a little bit of
time and fast forward to certain portions of it.
THE COURT: Is there any audio portion that is to
be taken into consideration by the court; and if so, has it
been transcribed?
MR. KABUSK: No, it hasn't been transcribed.
THE COURT: Is there any audio portion to be taken
into consideration?
MR. KABUSK: I was going to ask you to view it. It
is essentially going to reiterate the testimony of the two
witnesses.
THE COURT: Well,
audio that counsel want to make part of the record,
bring that out through a witness rather than through the
Mr. Lauer?
MR. LAUER: That is fine with me, Your Honor.
THE COURT:
MR. KABUSK:
if there is any portion of the
can you
tape?
Mr. Kabusk.
Yes, Your Honor. I would ask also
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that you make findings after viewing the tape regarding
findings of fact if that is appropriate.
THE COURT: I don't have time to do that, but I
will be glad to view the tape with the understanding that
counsel will bring out any audio portion of the tape that they
think is relevant. That way an appellate court will not have
to look at the tape to try to determine what was said on it,
and the stenographer will not have to attempt to transcribe the
notes of testimony from a tape. Is that satisfactory to both
counsel?
MR. LAUER: Yes, sir.
THE COURT: Mr. Kabusk.
MR. KABUSK: Yes, Your Honor.
THE COURT: Ail right, then the stenographer will
be excused from having to take down the audio portion of the
tape.
MR. LAUER: Judge, I have no objection to the
sitting down here if he wants because he is not going
witness
to be asking any questions if he wants to sit here.
THE COURT: Ail right. We will let the record
indicate that the Court is watching portions of the videotape.
Mr Kabusk, if you are not showing the entire tape, then you
will have to indicate for the record by the time shown on the
tape what portion is being made part of the record.
MR. KABUSK: Yes, Your Honor.
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THE COURT: It appears that the Court is looking at
the portion of the tape that begins 155150.
MR. KABUSK:
I can fast forward here for about a
minute.
THE COURT: You are stopping at 160213, and we will
take advantage of that to recess for lunch and resume at 1:30.
(Lunch recess.)
THE COURT: We will let the record indicate that
the Court has reconvened in the matter of Cowman versus
Commonwealth of Pennsylvania Department of Pennsylvania.
believe Mr. Lauer had to leave and his associate will be
continuing with the case. For the record, would you state
name for the stenographer.
your
MR. CARACIOLO: Joseph D. Caraciolo,
C-A-R-A-C-I-O-L-O.
THE COURT: Ail right. The Appellant for some
reason has not appeared and we waited about ten minutes beyond
the time scheduled for the reconvening of the case. Mr.
Caraciolo, do you have any objection to continuing without her
present?
MR. CARACIOLO: No, Your Honor.
THE COURT: Ail right. Mr. Kabusk,
were displaying a videotape.
I believe you
MR. KABUSK: Yes, Your Honor.
THE COURT: We are resuming at 160238 on the tape.
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160435.
MR. KABUSK:
THE COURT:
I can fast forward to 160345.
We are fast forwarding from 160254 to
MR. KABUSK: I missed it, 160338.
THE COURT: Ail right. We will let the record
indicate that the Appellant has appeared in court and is seated
with counsel now.
MR. KABUSK: I will try to save us about 2 minutes
to fast forward from here to 1240.
THE COURT: Well, we are changing moving ahead from
161016 to what?
MR. KABUSK: Maybe I shouldn,t do it, because the
times on the tickets don't COrrespond to the time on the
videotape. The time on the tickets don't Correspond to the
time on the videotape, if I could just pause it there.
THE COURT: At 162051.
MR. KABUSK: If I can recall Officer Hockenberry,
there is a portion of this audio that I would like to have him
reiterate.
THE COURT: Ail right. You are still under oath,
Officer Hockenberry.
DOUGLAS S. HOCKENBERRY,
having been recalled as a witness,
testified as follows:
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BY MR. KABUSK:
Q
A
sample.
DIRECT EXAMINATION
Was that your voice on the tape?
That is correct. I voiced that it was an invalid
THE COURT: That is at 162035.
BY MR. KABUSK:
Q Was
A Yes,
blood test. She
that your voice?
it was, I asked her if she would go for a
said, no, I will do this. I advised her that
this wasn't working out, she wasn't blowing properly.
Q Was that your voice once again?
A Yes, it was.
Q What was --
A I advised her that this test was still deemed a
refusal, and that I was still charging her with driving under
the influence of alcohol and she would be receiving paperwork
in the mail from me.
A
THE COURT: That is at 162105 approximately.
08 I believe, Your Honor.
THE COURT:
MR. KABUSK:
other side, I don't know, I didn't ask him this, but this next
portion is the Miranda and then the field sobriety test in the
Booking Center. In the interest of time, I will fast forward
Ail right.
Your Honor, without objection from the
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over that and then come to
comes back on to the tape.
MR. CARACIOLO:
the part where Officer Hockenberry
Any objection?
I don't have any objection to you
1
2
3
4 fast forwarding to the field sobriety test.
5 THE COURT: All right, then we will disregard what
6 is being fast forwarded through and we are starting to fast
7 forward at 162142. We will start the tape up again, the tape
8 is marked I believe 163326.
9 MR. KABUSK: Then it will jump to I believe 1643 --
10 here it is, 1642. If I could rewind some of that.
BY MR. KABUSK:
11
12 Q Officer, was that your voice?
13 A Yes, it was. As I testified earlier, I left the
14 Booking Center and was going back towards Camp Hill, stopped,
15 turned back around and came back to the Carlisle Booking Center
16 and advised her that she did do four samples and that they were
17 invalid and asked her to go to the Carlisle Hospital for a
18 blood sample for a BAC. I advised her if she did not, then it
19 would be deemed a refusal.
20 Q What did you just say there?
21 A I said I would like to take her for a blood sample
22 to give her the benefit of the doubt, and she advised me, what
23 would my lawyer say, and I told her I cannot answer that.
24 Q What did you say there?
25 A I advised her that I was offering to take her to
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A
A
that and she said,
and to paraphrase,
Q
A
no, that she would rather do that,
the DataMaster breathalyzer,
that.
1 the Carlisle Hospital to give her a blood test. I advised that
2 I read her the DL26 form, and that it was the officer's choice
3 to do blood, breath or urine or all three; and I was extending
4 the courtesy to her to take her to the Carlisle Hospital.
$ Q Let me rewind that to get her response after you
6 said that. What was her reply?
7 She said, No, I am not going to do that.
8 What did you just say there?
9 I advised her that I would offer to take her for
10 no, she volunteered to do the breath test
she wasn't going for the blood test.
What did you just say there?
I offered to take her for the blood and she said,
at which time she pointed to
and she said she would rather do
A
and she
Q What happened there?
I asked her, again, if she was going to take
advised that she believed that she did enough.
it,
Q
A
and she said, no, I have done enough.
Q Then what just happened there,
conversation?
A
What was your question and what was her response?
I asked her if she was going to do the blood test
what was the
I advised her that the blood result would be deemed
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a refusal and she advised that my rights are my rights.
THE COURT: You advised her that the blood results
would be deemed a refusal did you say?
A Yes.
THE COURT:
A Well,
the blood sample,
since
also.
The blood results, what did that mean?
I offered to take her for the blood test, for
and she refused to go for the blood test and
she refused to go for that, I deemed that as a refusal
THE COURT: Ail right. Let the record indicate
that the Court has completed looking at the videotape. Has
that been marked as an exhibit?
MR. KABUSK: No, that would be marked Commonwealth
Exhibit No. 6.
(Commonwealth Exhibit No.
identification.)
and I
tape.
objection,
place.
6 marked for
THE COURT: Ail right. We will get that marked,
have to see whether it is going to be admitted.
MR. KABUSK: Your Honor, I have a copy of this
That tape is the District Attorney's tape. Without
I would request that a copy be admitted in its
THE COURT: Mr. Caraciolo, do you have any
objection to marking this copy as an exhibit?
MR. CARACIOLO: I don't have any objection to the
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copy. I do have an objection to admitting the audio part of
the tape. If it is just th~ video, then I have no objection.
THE COURT: All right. Commonwealth Exhibit 6 is
admitted with the understanding that the audio portion is to be
disregarded, except to the extent that it has been supported by
direct testimony in court.
MR. CARACIOLO:
MR. KABUSK: Your Honor,
take into consideration the audio.
Is that satisfactory to Appellant?
Yes, Your Honor.
I would ask that you do
It has been a case in
(phonetic) Cleona Karns where the Commonwealth Court actually
11 did view the videotape, so I would ask the videotape be
12 admitted with the video and the audio.
13 THE COURT: Well, I have run into this problem
14 before. I certainly will admit these tapes when there is a
15 transcript with the submission, but expecting the stenographer
16 to try to take what is down on the tape of this sort is
17 expecting too much, and to me it is sending up an incomplete
18 record to the appellate court when I admit it without a
19 transcript, so I will not do that. But it is admitted in terms
20 of the video portion of the tape, and the audio portion is
21 admitted to the extent supported by testimony.
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MR. KABUSK:
Myers was on the stand,
THE COURT:
I believe prior
I have a few more
Okay.
MR. CARACIOLO: Your Honor,
to the officer, Agent
questions for him.
I would like to
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cross-examine
with.
this witness if possible.
THE COURT: Why don't you do that.
MR. CARACIOLO: On the issues that we just dealt
THE COURT: Ail right.
BY MR.
Q
CROSS-EXAMINATION
CARACIOLO:
Q Officer Hockenberry,
you had told her once again that if she
video,
test it would be deemed a refusal, is that correct?
A That is correct.
Q But that wasn't the first time you told her
would be deemed a refusal, correct?
A For the breath test or the blood test, sir?
At all that day.
No, that is correct.
So at least three other times
that if you don't
correct?
on that last part of the
denied the blood
it
on the video you said
do something it will be deemed a refusal,
A
correct?
That is correct.
But each time you let her have another chance,
A
the doubt.
That is correct, I was giving her the benefit of
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Q
something a
A
Q
So it was pretty unclear when you actually deemed
refusal since you said it at least four times?
I am not sure of your question, sir.
My question is, it seems very unclear when you
actually deemed it a refusal since you said the word refusal at
least four times.
THE COURT: Are you asking whether he thinks it was
unfair?
MR. CARACioLO: Yes.
A I don't believe it was unfair. I know that the
Booking Center and myself did the breath test. I gave her the
benefit of the doubt or the opportunity to give an ample sample
of breath, she did not do it, it was deemed a refusal. At that
time she was offered to give it again, she said that she would.
So I believe it wasn't out of the ordinary for that, no.
BY MR. CARACIOLO:
Q Just before you offered her the blood test, you
told her that you had previously read her a DL26 form, correct?
A Yes.
Q
did you?
But you didn't remind her what that DL26 form was,
A I am not sure during that if I advised her that she
would lose her license again or not. I know I advised her of
the DL26 form.
Q But DL26 isn't something that a common person would
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know, right?
A No, I did not read her the whole form again as I
did initially at the Booking Center.
Q The initial time at the Booking Center when you
read her the DL26 form, you specifically said breath, isn't
that correct?
A That is correct. I remember the second time when
told her, I told her it was the officer's choice to go for
breath, blood or urine or all three, it was the officer's
choice.
Q Again, you never actually submitted another DL26
with blood circled or written anywhere, did you?
A No, I did not.
Q Finally, you kept telling her that it was up to you
if you want to take the test again, right?
A I asked her -- I am not going to drag her from the
Booking Center to take her to the hospital if she was going to
refuse the test. I asked her if she would go for the blood
test, she said, no. I said, if you don't want to go, I am not
going to drag you out of the Booking Center.
Q You didn't make clear to her that she would lose
her license if she decided not to take the blood test?
A Well, I advised her that on the breath test. I
then told her again on the blood test. I am not sure if I told
her for the blood if she would lose her license for a year or
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not.
Q But she did seem confused about the whole thing,
she asked about her attorney?
A She asked for her attorney. I am not sure if she
was confused or not or if she wanted legal representation at
this point.
Q
At what point did you actually deem it a refusal?
THE COURT: Did she ask for an attorney or did she
just say, what would my attorney advise me?
10 A I believe at the first part of the video, Your
11 Honor, that she did say what would my attorney want and I
12 believe I said I can't answer that. The next time I think at
13 the very end she said about her legal rights.
14 THE COURT: Ail right.
15 BY MR. CARACIOLO:
16 Q
17 A
18 and after the blood, everything was a refusal.
19 Q
20 in the end,
21 refusal?
22 A
23 no.
24
25
At what point did you actually deem this a refusal?
Well, I guess the whole situation after the breath
So in other words, if she had taken the blood test
you would not have deemed that breath test a
I would have to say no, if she gave a blood sample,
MR. CARACIOLO: No further questions.
THE COURT: Mr. Kabusk.
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MR. KABUSK: Yes.
BY MR. KABUSK:
REDIRECT EXAMINATION
Q Officer Hockenberry, regarding the breath test,
was given four tests, is that
correct?
A That is correct.
Q The first test she didn't complete because of
insufficient breath, correct?
A That is correct.
Q Did you deem that to be a satisfaction of your
she
request for a breath test or do you deem that as a refusal?
A Sorry, repeat your question.
Q Did you deem her performance on the first test to
be satisfactory in complying with your request
test or did you deem that to be a refusal?
MR. CARACIOLO: Your Honor,
that question as a mischaracterization.
for a breath
established that this
And the actual test results as invalid, it
referred to a bad sample or invalid sample.
not mean what this witness thinks it means.
BY MR.
I have to object to
We have already
witness isn't trained in the DataMaster.
doesn't say, as you
So invalid might
THE COURT: The objection is noted but overruled.
KABUSK:
Q Did you deem her performance on the first test to
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be
in compliance with your request for a breath test?
No.
You considered that to be a refusal?
It could have been, yes.
But then she was given a second chance, correct?
Yes.
Did you deem her performance on the second test to
be in
compliance with your request
A
Q
A
Q
for a breath test?
No, it was not.
Did you deem that to be a refusal?
No, I gave her the third chance.
So the third chance, was that merely as a generous,
gratuitous offer?
A Yes.
Q On the third try, did you deem her performance
be in satisfaction of your request?
A No.
Q Did you deem that to be a refusal?
A It was all in one scope of it, yes.
Q After the third test, then you gave her a fourth
try, is that correct?
A
compliance with
A No.
That is correct.
Was her performance on the fourth test in
your request?
to
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Q
blood test
A
And then you told her that was a refusal, correct?
That is correct.
Then you gave her,
right after the fourth test,
That is correct.
MR. CARACIOLO: I
leading question.
THE COURT:
BY MR. KABUSK:
I believe, another request for a
is that correct?
have to object to that as a
Sustained.
Q
Then you returned?
Yes, I did, and I asked her to go for blood again.
Did you tell her you were revoking your earlier,
deeming her performance to be a refusal?
MR. CARACIOLO:
as a leading'question.
THE COURT:
Your Honor, again, I object to that
Well, I think we have been Over these
grounds. I understand what happened pretty well. I have
another hearing at 2:30, and we are scheduling now in June and
July of this year for the next portions of the hearing. So do
you have any other questions?
MR. KABUSK: No further questions.
THE COURT: Mr. Caraciolo, anything further of this
witness?
MR. CARACIOLO: Nothing further of this witness.
THE COURT: You may step down, thank you. Mr.
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Kabusk.
MR. KABUSK: Agent Myers again, please.
KEVIN MICHAEL MYERS,
having been duly sworn, recalled as a witness,
testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Agent Myers, did that videotape accurately portray
the events as they occurred at the time?
A Yes, they did.
Q You considered her performance on the four tests to
be a refusal, is that correct?
A That is correct.
Q Why so?
A Because she was not providing an adequate sample of
breath into the instrument.
Q How do you know that?
A For one, the tone wasn't going off; and if she was,
it would allow me to gain a second sample of breath from her so
I could complete the test.
Q You gave her numerous instructions, is that
correct?
A That is correct.
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Q
Was she following your instructions?
No, she was not.
Q Was she providing a steady breath into the machine?
A No, she was not.
Q Is that why the instrument deemed it to be an
If you not provide that
then it will clock out.
No further questions.
Mr. Caraciolo.
invalid --
A That is correct.
continuous breath of air,
MR. KABUSK:
THE COURT:
long
BY MR. CARACIOLO:
Q
come up?
A
Q
A
Q
would come up?
A Air pump
-- technical.
CROSS-EXAMINATION
Are there other reasons that an invalid sign might
I am sure there are.
You are trained in the DataMaster, right?
Yes, I am.
What are some other reasons that an invalid sign
reasons. It could be reasons because of
Q You said air pump reasons.
pump in between each?
A I am not a technician,
Did you check the air
I do not do that.
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Q
pump?
So there could have been a problem with the air
A It would not have been able
it would not be able to come up that the
all right.
to -- for the next test
internal standard was
Q But for this test there could have been some kind
of problem with the air pump, right? And if there was a
problem with the air pump, it would have read out an invalid
sample?
A That is one of the reasons it could have.
would have to take a technician to learn that one.
Q Did you ever check inside
anything was blocking it?
A No, I did not.
Q Do you replace
one of her tests?
A
Q
the mouthpiece?
A Yes, I did.
Q If there was something inside the mouthpiece
inside that hose,
test?
You
that hose to see if
the mouthpiece at the end of each
Yes.
Did you make sure that there was nothing blocking
or
would that have affected the results of this
A
I am sure it could have.
If there was something inside the mouthpiece or in
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2 A I am guessing yes,
3 Q You said that she
4 she was blowing?
5 A Yes, you could hear the breath.
6 Q When we watched the video, it did look like
7 blowing in the machine.
8 THE COURT: Wait, you have to ask questions,
9 make statements. Is there a question there?
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but I cannot answer that.
was starting and stopping when
she was
not
BY MR. CARACIOLO:
Q
machine?
Did it look like to you she was blowing into the
A
beside her, you can tell and you can hear a lot better than the
On the video, yes. But when you are sitting right
video portrayed it.
Q
would have
A
Could there have been a hole
allowed air to leak out?
I don't believe so.
inside that tube that
But could there have been one?
there could have been, there could have
Q
A I am sure
been a lot of things.
Q If there was a hole in there and she was blowing,
would there be an invalid result?
A I am sure the internal standard would not have
checked out correctly then.
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Q At the end of each one of the times that she blew
into that tube there was some type of loud noise, what was that
noise?
A
of breath whenever that was going off.
Q At least two times when that noise happened,
only a few seconds after she started blowing,
situation?
That was saying she was giving an adequate sample
it was
is that a normal
THE COURT: Wait, you can ask a question but not
make a statement.
MR. CARACIOLO: Sorry, Your Honor, I was asking the
question at the end of a statement.
THE COURT: I know, but you premised the question
with a statement of fact which may or may not be correct.
MR. CARACIOLO: Okay.
BY MR. CARACIOLO:
Q I was asking about that noise at the end. Does
noise always happen?
A Whenever I am getting an adequate sample of breath,
the noise goes off.
that
yes,
heard,
it is
Q
A
So it goes off at the end of an adequate sample?
It is supposed to have a long continuous noise.
THE COURT: I am confused. The noise that we
which I guess is not really of record, that goes off --
of record because it is on the tape, that goes off when
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there is an adequate or inadequate sample?
A Whenever she blows into the mouthpiece and there is
enough air going in, it will go off.
A
THE COURT: You are talking about a whistle sound?
It is kind of like a tone.
THE COURT: Is that what you are talking about?
MR. CARACIOLO: No, I am talking about a popping,
like a crack sound.
off.
that.
A Oh, the popping? That is the internal stuff going
Like I said, you need a technician to tell you all about
BY MR. CARACIOLO:
Q That popping Sound, that doesn't indicate whether
it is a valid or invalid sample?
A No, that is a normal thing.
Q Could that popping sound indicate something was
wrong with the machine?
A
No, I don't believe so.
Was the machine ever taken out of service?
For what?
Q For anything.
A Like I said, you would have to ask the technician
for that, I have no clue. There was nothing wrong with it that
day, so no, it was not taken out.
Q You have never had problems with that machine, you
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personally?
A
that, no.
Myself?
I have had an 02 deviation,
other than
Q
A
do not know.
How long have you been using that machine?
Whenever they first came in the Booking Center,
I
know.
Q
That specific machine, how long were you using it?
I work at two different Booking Centers, I do not
Q Did you fill out any type of report in connection
with this test?
A I filled out a lot of paperwork.
Q Do you have any today?
A That is on DA stuff.
THE COURT: When you say you filled out a lot of
paperwork, you filled out a lot of paperwork because the
machine was not operating properly or you just filled out your
normal paperwork.
A The normal paperwork.
THE COURT: Did you fill out any paperwork in terms
of reporting the machine as not operating properly?
A No, because it was operating properly.
THE COURT: All right.
BY MR. CARACIOLO:
Q On the video and that day, did she appear nervious
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to you?
A
Q
any way?
A
She was fidgety, yes.
Could that nervousness have affected the results in
to blow up a balloon, even though she is
tube.
No, I don't believe so. She still should be able
-- or blow into a
Q
sample?
A
How long does it normally take to get a valid
Probably 10 to 15 seconds.
Q Do you know how close she was in any one of the
four tries to getting a valid sample?
A I would say probably the third one she was pretty
close. I think it was the third test. Normally, we only give
two and then it is a refusal. We were giving her the benefit
of the doubt.
Q Is it your decision to deem it a refusal or is it
the arresting officer's?
A It is my decision to deem the breath test a
refusal.
Q
At what point did you deem it a refusal?
After the fourth test.
In between the second and third test, I heard a
conversation between you and Officer Hockenberry regarding
another breath test machine. Can you tell us about that
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Q Was there ever a
another breath test machine?
conversation?
I don't recall that conversation.
consideration about bringing in
A I do not recall that because I do believe the only
other -- there was only one other breath test instrument in the
center and I am not an operator of that one. So I don't see
how we would have brought in another one. But I mean I can't
be positive on that.
MR. CARACIOLO: Your Honor, no further questions.
THE COURT: Mr. Kabusk.
BY MR.
Q
could make
A
Q
REDIRECT EXAMINATION
KABUSK:
Agent Myers, you said something about an air pump
it invalid?
Yes, I was...
If that is the case, could you have started the
instrument up to give another breath test?
A Not to give another one, no.
Q So if it was invalid after the
have allowed you to give out the second,
A
Q
A
first, it wouldn't
third and fourth?
That is correct.
So you are not saying that the air pump was bad --
Not that day, no, I am just saying that might have
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been the reason.
Q You were also asked about a popping sound.
is
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3 a printer that prints out the tickets, is that correct?
4 A That is correct.
5 Q Could that, quote sound, have been the printer?
6 A I don't believe the popping sound would have been
7 the printer. I mean the printer makes a noise too, but also
8 the internal mechanisms also make the popping sounds. And the
9 popping sounds are normal, they happen every time.
10 Q You were asked was the machine operating properly.
11 Was it operating properly?
12 A Yes, it was. All those tickets, the internal
13 standard is verified.
14 Q That subject sample -- that was invalid, once
15 again, why did you conclude it was invalid?
16 A Insufficient breath.
Q So the insufficient breath resulted in the
instrument determining it to be invalid?
A That is correct.
Q Did you then determine that to be a refusal?
A That is correct.
MR. KABUSK:
THE COURT:
MR. CARACIOLO:
THE COURT: Ail
No further questions.
Anything further?
No, Your Honor.
right. You may step down, thank
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you. Mr. Kabusk.
MR. KABUSK: That is the Department's case, Your
Honor, the Department reserves the right to recall any
witnesses.
THE COURT: There were two Commonwealth exhibits
that did not yet get admitted, Commonwealth Exhibits 2 and 3.
Are you moving for their admission?
MR. KABUSK: I am, Your Honor, actually moving for
blank admission of 1 through 6, specifically 2 and 3.
THE COURT: Mr. Caraciolo, do you have any
Commonwealth Exhibits 2 and 3,
objection to the admission of
which were those tickets?
MR. CARACIOLO:
THE COURT: All right.
3 are admitted.
MR.
today, we
No objection, Your Honor.
Commonwealth Exhibits 2 and
we have no testimony
Mr. Caraciolo.
CARACIOLO: Your Honor,
just have argument.
THE COURT: Did you want to move the admission of
Appellant's Exhibits 1 and 2?
1 and 2
MR. CARACIOLO: Mr. Kabusk, do you have any
objection to the admission of Appellant Exhibit 1 and 2?
MR. KABUSK: No, Your Honor.
THE COURT: Ail right, Appellant's Exhibits
are admitted. Did counsel wish to make brief closing
arguments?
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MR. CARACIOLO: Yes,
THE COURT: Ail right.
MR. KABUSK: Your Honor,
Your Honor.
Mr. Kabusk.
in these matters,
the
Department's burden is to prove the motorist was arrested by a
police officer who had reasonable grounds to believe that the
motorist operated or was in actual physical control of a motor
vehicle while under the influence of alcohol or controlled
substance. Second, motorist was arrested for violation of
Section 3731. The motorist was requested to submit to a
chemical test. The motorist was warned of the consequences of
refusing the chemical test. The motorist was provided the
O'Connell, and the motorist refused to submit. Your Honor,
regarding some of these issues, regarding the warnings,
Commonwealth Re: Scott at 684 A.2d 539 indicates what warnings
are required. Those warnings were provided. If there is any
sort of argument that the warnings were required to be given
before the request for blood tests, all that is required is one
warning.
I would direct the Court's attention to (phonetic)
Books 530 A.2d 972 and Trobovic 553 A.2d 531.
that last
THE COURT:
name.
MR. KABUSK:
THE COURT:
MR. KABUSK:
For the stenographer, would you spell
T-R-O-B-O-V-I-C.
Thank you.
Regarding the requirement of
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reasonable grounds,
regarding the
this is ample
I cited the Dreisbach case earlier
reasonable grounds standard, and I would argue
reasonable grounds here. And additionally, the
legality of the arrest is irrelevant in the refusal
proceedings, and that would be Wysocki, 535 A.2d 77.
Regarding the insufficient breath issue, providing
an insufficient breath is a refusal. And once the Commonwealth
proves that there has been a refusal regarding the insufficient
breath, the operability of the instrument is irrelevant, and I
would cite to you Spera, 817 A.2d 1236, as well as Postgate,
which is 781 A.2d 276, P-O-S-T-G-A-T-E, and Papas 669 A.2d 504,
P-A-P-A-S.
And it has been well established that there is no
good faith exception in these insufficient breath cases and
that would be Kilrain, 993 A.2d 932, K-I-L-R-A-I-N, Sweeney,
S-W-E-E-N-E-Y, 804 A.2d 685, and Berta, 549 A.2d, B-E-R-T-A.
And finally, regarding the refusals, the police
officer I would argue was more than generous in this case. He
gave the Petitioner numerous chances and the just by offering
the second chance, they were a matter of grace, that doesn't
revoke any prior refusal.
Geonnoti,
A.2d 397.
this
G-E-O-N-N-O-T-I,
I would cite to you two cases,
at 588 A.2d 1343, and Olbrish, 618
Your Honor, the officer was more than reasonable in
case. I would respectfully request the appeal be
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dismissed.
1
2 THE COURT: Thank you, Mr. Caraciolo.
3 MR. CARACIOLO: Thank you. Your Honor, the
4 Commonwealth established the four elements that it had to
5 establish to meet its burden, and the Appellant submits that it
6 didn't establish those four elements.
7 The first element for reasonable grounds. The
8 officer has to have reasonable grounds to ask for the blood
9 alcohol testing. In this case you had a questionable stop on a
10 two-way street in all but two hours of a day. During these two
11 hours there is a little tiny sign put on the side of a tree
12 that is not even in the middle and kind of hard to see. After
13 that once stopped, the officer detected an odor of alcohol and
14 glassy eyes, no slurred speech, none of the other types of
15 indicators that there be alcoholic beverage involved.
16 She was able to hand her information within one to
17 two minutes, which is not unreasonable, and she was able to
18 walk from the car from where she was stopped to the police
19 officer's car to perform the field sobriety tests. She was
20 able to answer the officer's questions, he didn't have any
21 problems understanding her or communicating with her. So at
22 that point he didn't have the reasonable grounds to ask her to
23 perform the blood alcohol test, but he did anyway, he asked her
24 if she would perform two preliminary breath tests. He asked
25 her twice and she refused both times.
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1 Then he placed her under arrest for the DUI, took
2 her down to the station, and no less than 6 times asked her if
3 she would perform a blood alcohol test. At the end of each one
4 of those tests he said, if you don't say yes, this will be
5 deemed a refusal. And then, if you don't have another one,
6 this will be deemed a refusal, each one of those times telling
7 her that the refusal would come at the end, but then giving her
8 another chance, all the way until that sixth time.
9 Before he started with the breath test, he told her
10 specifically that she doesn't have the right to speak to an
11 attorney, she will lose her license for 1 year, and that she
12 must submit to this breath test or lose her license or those
13 consequences of what happened. Gave her four chances at that,
14 and then he started talking about blood tests and didn't tell
15 her again that she would lose her license, didn't tell her
16 again that she didn't have a right to speak with an attorney,
17 and didn't tell her, again, that she basically already allowed
18 for these tests when she implied and consented to them.
19 The officer had provided the O'Connell warnings the
20 first time, but Officer Hockenberry said that he didn't deem it
21 a refusal until after that last blood test request. He didn't
22 provide those O'Connell warnings again, he just told her, oh,
23 we read you the DL26, you remember what that was.
24 She didn't refuse, actually refuse to submit to any
25 of the tests. You saw the video, she was trying to blow.
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1 There seemed to be something wrong with the machine, there was
2 some noises going on, there was some confusion about what she
3 was supposed to be doing. But she did give a good faith effort
4 in blowing into the machine. It seemed like there was
5 something wrong with the machine, and not with the way she was
6 performing on it.
7 Based on those things, the Appellant submits that
8 the Commonwealth did not establish those four elements and did
9 not establish its burden, and we ask that this appeal be
10 granted, thank you, Your Honor.
11 THE COURT: Thank you. We will take a couple
12 minute of recess and I will look at the exhibits. May I see
13 counsel for the next case in chambers.
14 THE COURT: We will enter this order, and now, this
15 8th day of January, 2004, after careful consideration of
16 Appellant's Appeal from Suspension of Operator's Privilege, and
17 following a hearing, the appeal is denied, and the suspension
18 of driving privilege imposed by the Pennsylvania Department of
19 Transportation by official notice having a mail date of October
20 8, 2003, is affirmed. Thank you. Court is adjourned.
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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.
Patricia--C. ~-~rrett
Official Stenographer
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed to
be filed.
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