HomeMy WebLinkAbout04-1457Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:NO.:
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellee
i
: LICENSE SUSPENSION
: APPEAL
E/v.'l T/../o- I
chemical test.
5.
2. The Appellant received a Notice dated March 25, 2004, that as a result of his alleged
violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privilege were being
suspended for a period of one year, effective suspension date April 29, 2004, at 12:01 a.m. A true 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.
The Appellant submits that he did not intelligently and voluntarily refuse to submit to a
The Appellant submits his actions did not constitute a refusal.
Wherefore, your Appellant respectfully requests your Honorable Court to schedule an
evidentiary heating on the matter.
Respectfully submitted,
Law Offices of Patrick F. Lauer, Jr., LLC
2108 Market S~eet, Aztec Building
Camp Hill, Pennsylvania 17011-4706
II~46430 Tel. (717) 763-1800
17028.
$PPEAI, FROM ~ITNPEN~If)N O1~ OPF~ATfHi'~ PRIVII,EGE
AND NOW, comes the Appellant, W'flllam D. Trimble, by and through his attorneys, the Law
Offices of Patrick F. Lauer, Jr., LLC, respectfully avers the following:
1. Appellant resides at 111 Decatur Drive, Grantville, Dauphin County, Pennsylvania
WILLIAM D. TRIMBLE,
App~llam
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO.:
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT :
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, : APPEAL
Appellee
Date:
A'I'IORNI~Y VI~,RIIilC. A'IION
The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that:
He is the attorney for the Appellant, W'flliam D. Trimble;
He is authorized to make this verification on his beha~,
The facts set forth in the foregoing Appeal are known to him and not necessarily to his
client;
The facts set forth in the foregoing Appeal are tree and correct to the best of his
knowledge, information and beliefi
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,
~~rl~ Jr'a~"ckEk F~.uirI~uer, Jr., LLC
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID# 46430 Tel. (717) 763-1800
WILLIAM D. TRIMBLE,
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO.:
COMMONWEALTH OF PENNSYLVANIA,:
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, : APPEAL
Appellee
CE, II'FI I~'ICATE 01~ 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 United 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
Date:
Respectfully submitted,
2108 Market Street, Aztec Building
Camp I-Yfll, Pennsylvania 17011-4706
ID~46430 Tel. (717) 763-1800
COHMONNEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date= MARCH 25, 2004
WILLIAM D TRIMBLE
111 DECATUR DRIVE
GRANTVILLE PA 17028
WID # 040786194209331 001
PROCESSING DATE 03/18/2004
DRIVER LICENSE # 13858141
DATE OF BIRTH 12/05/1949
Dear MR. TRIMBLE=
This is an O~ft¢la! Notice of the Suspenslon of your Driving
Privilege as authorized by Section 1547BllI of the
Pennsylvania Vehicle Code. As a result of your violation
of Sect/on 15q7 of the Vehicle Code, CHEMICAL TEST REFUSAL,
on 02/01/200~:
Your drivin; privilege is SUSPENDED fop a pePlod of 18
MONTH(S) effective 04/29/2004 at 12:0! a.m.
COMPLYING NITH THIS SUSPENSION
You must return all current Pennsylvania driver's licenses,
learner's permits, temporary driver's licenses (camera
cards) in your possession on or before 0~/29/2004. You may
surrender these items before, 0~/29/200~, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU HAY NOT RETAIN YOUR DRZVERfS LICENSE FOR ZDENTZFZCATZON
PURPOSES. However, you may applv for and obtain a photo
identification card at any Driver License Center for a cost
of $10.00. You must present two (2) forms of proper iden-
tification (e.g., birth certificate, valid U.S. passport,
marriage certificate, etc.) in order to obtain your photo
identification card·
You Ntll not ~ecelve credt~ toNa,d serving any suspension
untll we recelve ¥ou~ 11cenee(e). Complete the following
steps to acknowledge this suspension.
Return oll current Pennsylvania driver"s licenses,
learner's permits and/or camera cards to PennDOT. If
you do not have any of these items, send a sworn nota-
rized 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 net retain your driverfs license for
identification purposes. Please send these items to:
Pennsylvania Department of Transportation
0~078619~20935!
3.
Bureau of Driver Licensing
P,0. Box 68695
Harrisburg, PA 17106-8695
Upon receipt, review and acceptance of your Pennsylvania
driver's license(s), learnerSs permit(s), and/or a sworn
notarized letter, PennDOT wil! send you a receipt con-
firming the date that credit began. If you do not re-
ceive a receipt from us within 5 weeks, please contact
our office. Otherwise, you will not be given credit
toward serving this suspension, PennDOT phone numbers
are listed at the end of this letter,
If you do not return all current driver license pro-
ducts, we must refer this matter to the Pennsylvania
State Police for prosecution under SECTION 1571(a)(~)
of the Pennsylvania Vehicle Code.
PAYINS 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. Nrite 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.
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within 50 days of the mail
date, MARCH 25, 200~, of this letter. Zf you flle an appeal
in the County Court, the Court ~111 glve you a time-stamped
certified copy cf the appeal. In order for Your appeal to
be valid, you must send this time-stamped certified copy of
the appea! by certified mail to:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 1710~-2516
Remember, this is an OFFZCZAL NOTZCE OF SUSPENSZON. You
must return all current Pennsylvania driver license products
to PennDOT by 04/29/200~.
0~078619q20933!
S~ncerely,
Rebecca L. 8ickley, D/rector
Bureau of Driver Licensing
INFORMATION 7=00 a.m. to 9=00 p.m.
IN STATE 1-800-932-4600 TDD IN STATE
OUT-OF-STATE 717-$91-6190 TDD OUT-OF-STATE
WEE SITE ADDRESS www.dmv.state. Da.us
1-800-228-0676
717-$91-6191
APR 0 7 2004
Appellant
: IN THE COURT OF COMMON PLEAS OF
: CUMBEP. LAND COUNTY, PENNSYLVANIA
: NO.: 0('10- / ~/;~
COMMONWEALTH OF PENNSYLVANIA,:
PENN SYLVANIA DEPARTMENT
OF TRANSPORTATION, : LICENSE SUSPENSION
BUREAU OF DRIVER LICENSING, : APPEAL
Appellee
AND NOW, this t 5 ~ ~?
day of 20~, upon co~d~afion of
~s ~PE~ ~OM SUSP~SION OF OP~TOR'S P~.~GE, k is h~y ~d~ ~t a
the ~er ~ be hdd on ~ ~y of ~ 20~, at
H~g
on
~"~ o'clock ~ . m. ~ Corem No. ~ of~e C~b~d Co~ Comhou~.
A supers~ is ~t~ p~s~t to Ve~cle Code Scion 1550¢)(1) ~fl ~ch ~e ~ ~s
honorable court resolves this appeal.
Distribution:
-PA Dept. of Transportation, Office of Chief Counsel, Thh'd Floor, Riverffont Office Center,
Harrisburg PA 17104 -
-Patrick F. Lauer, Jr., Esq., 2108 Market St, Camp I-rdl, pA 17011 ~ ~-~/
WILLIAM D. TRIMBLE,
PETITIONER
· IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
RESPONDENT
: 04-1457 CIVIL TERM
Bayley, J., July 29, 2004:--
FINDINGS OF FACT
(1) Trooper Jeffrey D'Alessandro of the Pennsylvania State Police stopped
petitioner, William Trimble, on Interstate 81 in Cumberland County at approximately
2:10 a.m., on February 2, 2004, after observing his vehicle twice, over a period of
several miles, swerve completely onto the berm of the highway.
(2) After the stop, the trooper smelled an odor of alcohol on petitioner's breath.
(3) Petitioner had glassy, bloodshot eyes.
(4) Petitioner denied he had been drinking.
(5) Petitioner then stated that he had a couple of beers after playing in a band.
(6) Petitioner's speech was slurred.
(7) Petitioner was taken to a booking center where he refused to take a test of
his blood alcohol content·
CONCLUSIONS
(1) Trooper D'Alessandro had reasonable grounds to believe that petitioner
04-1457 CIVIL TERM
operated his motor vehicle while under the influence of alcohol.~
(2) Petitioner made a knowing and conscious refusal to submit to chemical
testing.
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this '~.(~ day of July, 2004, this appeal from the Department's
suspension of petitioner's operating privilege for eighteen months for a chemical test
refusal, IS DISMISSED. ~¥the C0~/
Edgar B. IBayley, J.
,x~'evedy Points, Esquire
For the Department of Transportation
~atrick F. Lauer, Jr., Esquire
For Petitioner
:sal
O?-X.? '0?/
~ See Commonwealth, Department of Transportation v. Martino, 162 Pa. Commw.
572 (1994).
-2-
AbYtONOH±O~8 =,Hi :~0
WILLIAM DANIEL TRIMBLE, :
Petitioner :
V. :
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION,:
BUREAU OF DRIVER LICENSING, :
Respondent :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-t~8-~ CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
Proceedings held before the
HONORABLE EDGAR B.
Cumberland County Courthouse,
on July 26,
BAYLEY, J.,
Carlisle, Pennsylvania,
2004,
in Courtroom Number Two.
APPEARANCES:
BEVERLY J. POINTS, Esquire
For the Department of Transportation
PATRICK F. LAUER, JR., Esquire
For Petitioner William Trimble
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and I don't.
(Whereupon,
were held:)
THE COURT:
MS. POINTS:
THE COURT:
MS. POINTS:
MR. LAUER:
THE COURT:
July 26, 2004, 1:39 p.m.
Carlisle, Pennsylvania
the following proceedings
Ready to proceed?
Yes, Your Honor.
This is Trimble?
Yes, Your Honor.
Yes.
And, I'm sorry, I should know your name
yOU.
Transportation.
THE COURT:
MS. POINTS:
THE COURT:
MS. POINTS:
THE COURT:
MS. POINTS:
D'Alessandro.
MS. POINTS: Not at all. I was just going to tell
Beverly Points on behalf of the Department of
Points?
Yes, sir.
P-o-i-n-t-s?
Yes, sir.
You may proceed.
Commonwealth calls Trooper
Whereupc, n,
TROOPER JEFFREY M. D'ALESSANDRO,
having been duly sworn, testified as follows:
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THE COURT:
refusal or not?
MS. POINTS:
THE COURT:
MR. LAUER:
THE COURT:
MR. LAUER:
THE COURT:
MR. LAUER:
THE COURT:
The issue here is whether
Yes.
That is the sole issue?
Well, reasonable suspicion,
You mean to --
To request a breath test.
To request it to begin with.
Yes, sir.
Proceed.
DIRECT EXAMINATION
BY MS. POINTS:
Q Trooper, will you state
last name for the record, please.
your name
A Trooper Jeffrey M. D'Alessandro.
spelled D, as in David, apostrophe,, capital
A-l-e-s-s-a-n-d-r-o.
Q
this was a
Judge.
and spell your
Last name is
opportunity to come into contact with the petitioner,
Trimble?
A Yes, I did.
And by whom are you e~Dloyed?
I'm employed by the Pennsylvania State Police.
Were you so employed on February 1st of 2004?
Yes, I was.
And in the course of your duties, did you have the
Mr.
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Q Would you describe the events of that night,
please.
A
morning,
Yes. Approximately ten minutes after 2:00 in the
the date was February 1st, 2004, I was traveling
northbound on Interstate 81. While traveling northbound on
Interstate 81, I observed a gold colored Lincoln Continental
bearing Pennsylvania registration --
MR. LAUER: Judge, I'm going to object to him
reading from the report unless he has no recollection of that
night.
THE WITNESS: I was just going to read the
registration plate from it.
from it.
THE COURT:
THE WITNESS:
fox trot, J, John, J,
BY MS. POINTS:
Q Trooper,
completed regarding this
A Yes.
You may read the registration plate
Bearing Pennsylvania registration F,
John, 2608.
are you referring to the report that you
incident?
Q Do you have an independent recollection of
events of that night?
A Yes.
Q Are
memory?
the
you just using the report to refresh your
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A
Yes, I am.
Proceed.
While traveling northbound I observed that gold
colored Lincoln to be traveling in the right lane. When
following it, the vehicle had left its lane on two separate
occasions, completely leaving the lane to the berm of the road.
Both times the vehicle made an abrupt swerve back into its
lane.
At that time in February the shoulders of the
roadway were snow covered, ice covered. The weather conditions
were obviously cold. The vehicle swerved abruptly back into
its lane. There was traffic on the roadway on the interstate.
I continued to follow it until I could find a safe
place to initiate a traffic stop, which I did so. When I
initiated the traffic stop, I approached the vehicle. The
operator was William Trimble who is seated here in the
courtroom today.
Q When you spoke with Mr.. Trimble, did you detect
anything about his person?
A Yes, I did. I detected an odor of an alcoholic
beverage emanating from his breath. I noticed he had glassy,
bloodshot eyes.
Q
license,
And what did you do at that point?
I spoke with him, asked him for required documents,
registration, insurance. He did give those to me.
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Q Did you ask him to step out of the vehicle?
A Not immediately. I was still making conversation
with him. Afterwards I did ask him to step from the vehicle.
Prior to that, I had asked him if he had been drinking any
alcoholic beverages. He related that he does not drink, said
he was working. He was tired and was playing in a band.
From there I had asked him to step to the rear of
the vehicle. He then made a statement to me that this is
stupid. I'm just trying to get home. I'm tired. I only had a
couple beers after my band was playing.
Q Did you ask him to perform any field sobriety
tests?
A No, I did not.
Q Why not?
A I felt that his condition from the odor, with the
bloodshot eyes, being on the interstate, I did not feel that it
was safe to have him perform those or it would put him in
danger.
Q
A
Q
What did you do at that point then?
I administered a preliminary breath test.
And without discussing the results of that test,
since they are not admissible in court, did the results
contribute to an opinion that you may have been forming?
A Yes, it did.
Q What opinion was that?
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A I formed the opinion that Mr. Trimble was under the
influence of alcohol to a degree that rendered him incapable of
safe driving.
Q Did you believe that he was operating the vehicle
in violation of Section 3802 of the Vehicle Code and that if he
had submitted to a breath test that his blood alcohol reading
would be above a .08?
A Yes.
Q What did you do at that point then?
A He was taken into custody, transported to the
Carlisle Booking Center.
Q Did you advise him that he was under arrest?
A Yes, I did.
Q Did you put handcuffs on him?
A Yes, I did.
Q was there any discussion during the transport to
the booking center?
A Not that I can recall. I would have to refer to my
report.
Q That's fine.
A No.
Q At the booking center what happened?
A At the booking center he was taken to the third
floor. The handcuffs were taken off of him. He had a seat. I
read him the chemical test warning.
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Q Officer, I'm showing yeu a document that has been
marked Commonwealth Exhibit 1. I would ask this be admitted.
I provided a copy to Mr. Trimble's counsel.
form contained within this packet.
document?
A That is the chemical test form that I read to him
and that he signed.
Q What portion of the form did you read? Is it
I'm showing you a
Would you identify that
numbered paragraphs one, two, three, four?
A One, two, three, four, that's correct.
That's what you read to him?
Yes.
And is that your signature below that portion of
Yes, it is.
And then Mr. Trimble sLgned underneath your name?
Yes, he did.
Did he ask you any questions?
No, he did not, not that I recall.
How did he respond after you finished reading the
Q
the form?
A
Q
A
Q
A
Q
form to him?
When he
I had asked him are yeu sure this
and he thought about it and he said yes.
Q
told me that he did not want to give a
is what you want
Yes, that he did not want to give the test?
A
breath test,
to do,
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A Yes, that's correct, yes.
Q Was there anymore discussion
consequences of a refusal would be?
A I explained everything that was on the
There was no other questions about that.
Q Did he seem confused or like he didn't
what was going on?
A
about what the
form to him.
understand
He didn't seem confused to not understand what I
read him. I felt that he was able to make a decision.
MS. POINTS: Thank you.. That's all.
CROSS EXAMINATION
BY MR. LAUER:
Q Sir,
Ms. Points asked you if at the time on the
night in question if you felt that he was in violation of and
she specifically said 3802. Did you hear her ask that
question?
A Yes, she just asked me that question.
Q Did you, in fact, even know that the DUI code was
listed under Subsection 3802 that night?
A Yes, I did.
Q Now, on the day of this arrest, how much training
and education and experience had you had at that time as an
officer?
A My training and experience in the State Police
Academy?
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Q Right. It was about seven months, right?
A Yes, sir.
Q And how much training did you have specifically
dealing with field sobriety tests in approximate hours?
A I couldn't answer that. I would have
the State Police Academy.
Q You don't recall if it was eight hours?
A I honestly don't recall, sir.
Q Well, how long ago was it that you went through
that training on the field sobriety tests?
to contact
A
I would say May of 20021,
MR. LAUER: Your Honor,
THE COURT: Yes.
maybe April of 2003.
can I approach the witness?
(Whereupon, Petitioner's Exhibit No. 1 was
marked for identification.)
BY MR. LAUER:
Q I'll show you Petitioner's Exhibit No. 1.
the affidavit of probable cause that you filled out?
A Yes, it is.
Q And did you not sign the bottom of
everything there was true and correct?
Is this
that saying that
A Yes,
Q Now,
client at on Interstate 81 where you
A Mile marker 47.
I did.
what was the mile marker where you stopped my
stopped him?
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Q Mile marker 47. And how
mile marker 47?
MS. POINTS: Your Honor,
far is mile marker 42 from
I object to the relevance
of this to whether or not Mr. Trimble refused the test.
THE COURT: Well, he is challenging the
reasonableness of the stop I thought.
MR. LAUER: Yes, sir.
THE COURT: The reasonableness of the request for a
test. Overruled.
BY MR. LAUER:
Q What is the distance between mile marker 42 and
mile marker 47, approximately?
A Five miles.
Q On your affidavit of probable cause, did you not
indicate on there that you began following him at mile marker
42?
A
Q
what it was
A
Q
On my affidavit, yes.
Dealing with this, sir, so the Judge has an idea
like, was it not extremely windy that night?
There was wind.
And was it not, according to your prior testimony,
high winds that night?
A If that's what I said.
Q Now, also the distance,, sir, from the time -- the
first time that you're saying his tires went over the white fog
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line,
A
Q
testimony,
how far were you behind his vehicle at that time?
Maybe five car lengths.
And is it not true, according to your prior
that across that fog line it only occurred for about
two seconds?
A Sir, if that's what I said in my prior testimony.
Q Can you tell me, if you don't recall, from what
appeared in seconds that it crossed the fog line for? And if
you can't, you can't.
A Two or three seconds sounds appropriate.
Q Now, when you asked Mr..
gave that to you without a problem,
A That's correct.
Trimble for his license, he
correct?
Q
insurance,
A
Q
them to you,
When you asked him for his registration and
he had no problems doing that, correct?
That's correct.
The way that he retrieved those items and handed
would you agree he showed no signs of impairment
by the way he did those actions?
A Yes.
Q
A
Q
Would you agree with that?
A Yes.
Yes, you agree no signs he was impaired, right?
He handed me the documents.
And no signs of impairment by the way he did that.
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Q
when he was in his vehicle,
A
Q
Okay. How much time did you spend talking to him
face-to-face?
specifically,
Two to three minutes.
Did you stay there two to three minutes or was some
of that period of time when you went back to your vehicle to
call some information or review some things?
A Standing at the window for two to three minutes.
Q Now, you asked him to exit the vehicle, correct?
A Yes.
Q Prior to asking him to exit the vehicle, would you
not agree with me that you had formed no opinion at that point
and time specifically that he was incapable of safe driving
specifically at that time?
A Are you saying from talking to him?
Q Talking to him before getting out of the car I'm
saying. Prior to him getting out of the car, isn't it true
that you had not formed the specific intent that he was
impaired to the point that he couldn't drive specifically on
I thought that he was incapable of safe driving.
But had you formed an ()pinion that he was incapable
from alcohol?
POINTS: Objection.. I think he's answered
that issue?
A
Q
of safe driving
MS.
that.
THE COURT: Sustained, he has.
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BY MR.
Q
driving.
A
roadway,
LAUER:
You said that you felt he was incapable of safe
Why was that?
The way he was driving his vehicle, leaving the
abrupt swerve back into his lane, the odor of alcohol
on his breath,
Q
traveling?
A
hour.
Q
A
particular area,
occurred.
Q
A
Q
glassy, bloodshot eyes.
What was his approximate speed that he was
He was traveling approximately 65 to 70 miles per
What was the speed limit?
You know, we just had a speed limit change in that
and I'm not exactly sure when that change
So you're telling me you don't know what the --
I believe it was 65.
What was the distance, sir, from the time that it
supposedly crossed this fog line the first time until the time
it occurred the second time?
A How much distance did we
again?
Q
A
Q
between the
travel before it occurred
Yes.
Maybe a mile.
And in that mile, in between that period of time,
first time or the second time, he stayed within his
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lane,
lane,
correct?
A Still drifting but, yes, he stayed.
Q Just a specific question. He stayed within his
correct?
A Yes.
On a night when there was high winds, right?
Yes.
You said that when he crossed the fog line,
Q
according to you, you said maybe three seconds?
THE COURT: Two to three seconds.
BY MR. LAUER:
Q Showing you page 23 of your prelim testimony.
showing you page 23. Can you just read to yourself lines
through 7, please.
A (Witness complied)
THE COURT: Question.
BY MR. LAUER:
Q Have you had a chance to review that,
just showed you?
A Yes.
Q
two seconds,
A
said.
Q
I'm
4
sir, what I
Isn't it true there you testified that it was maybe
you never even used the word three seconds?
If this is what it says, sir, then that's what I
And that's what it says, two seconds, maybe, right?
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sir.
BY MR.
you~
THE COURT: Is that what it says?
THE WITNESS: I'm trying to find the place here,
MR. LAUER: Lines 4 through 6.
THE WITNESS: Yes.
THE COURT:
LAUER:
Q Now,
correct?
A
Q
correct?
A
Q
A
Next question.
you understood Mr. Trimble when he spoke to
That's correct.
He appeared to be coherent when he spoke to you,
I noticed that his speech was slurred.
Did he appear to be coherent when he spoke to you?
Yes.
MS. POINTS: I think he's answered the question.
BY MR. LAUER:
Q And you did understand him the whole time, correct?
A Yes.
Q In fact, when you did speak to him and ask him
questions, you never had to ask him a question twice because
you understood it clearly the first time, correct?
A I believe so.
Q In fact, you heard him speak out in the hallway
here, did you not?
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A
was that
A
Q
A
Q
Yes.
And his speech in the hallway was the same as
night. Would you not agree with that?
No.
Okay.
No, I would not agree with that.
Okay. You asked him to exit the vehicle.
it
When he
stepped out of the
A
Q
correct?
BY MR.
car, he got out of the car fine, correct?
To my recollection, yes.
He didn't put his hand on the car for balance,
THE COURT: He got out
LAUER:
Q When he got out of the
of the car fine.
car, he never put his hand
on the car for --
THE COURT:
fine, he wouldn't have put his hand on
Next question. Come on.
BY MR. LAUER:
Q
to the rear
A
Q
signs
Well, no. If he got out of the car
the car for balance.
When he walked to the rear of the vehicle, walking
of the vehicle there was no staggering, correct?
Not that I can recall, no.
And the way he walked back there he didn't show any
he was impaired by the way he walked, correct?
A Not that I can recall.
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BY MR.
meaning your testimony regarding high winds,
it says. Do you not say on page 5, line 25,
MR. LAUER: Court's indulgence.
LAUER:
Q You had said earlier that if this is what it said,
that that's what
and page 6, line
MS. POINTS: Your Honor, again,
over this already.
BY MR.
that in fact there were high winds? Did you not say that?
I think we've gone
THE COURT: Did you say that? Line 217
MR. LAUER: Line 25.
THE COURT: Did you say that there?
THE WITNESS: It does say high winds.
THE COURT:
LAUER:
Q
Next question.
NOW, sir, you just testified here a second ago that
you had formed an opinion --
after he got out of the car,
A Yes.
Q Are
let me back up. The PBT was given
correct?
you telling the Judge here that you formed an
opinion that he was incapable of
A Yes.
Q Please look at page 6,
A (Witness complied)
THE COURT: Question.
safe driving before the PBT?
lines 8 through 12.
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BY MR. LAUER:
Q Did you not, sir, testify there that you had not
formed an opinion regarding any impairment until after the PBT?
A The way it's worded it says preliminary breath test
was administered, and then it says at
opinion.
Q Okay. So isn't it true, sir,
had not formed an opinion until after the
A
said that,
I felt that he was under the
that point it was my
really, in fact,
PBT?
influence.
you
Are you telling me that you were mistaken when you
that you formed an opinion after the PBT?
MS. POINTS: Objection, Your Honor.
THE COURT: Overruled. It is cross examination.
He can answer. It is an easy, understandable question.
THE WITNESS: Repeat the question.
BY MR. LAUER:
Q Are you telling me that you were mistaken when you
testified under oath at the last hearing that you did not form
an opinion until after the PBT? Because what you're saying
today is you formed an opinion prior to the PBT.
don't necessarily see that I formed that opinion
It says at that poJ_nt. That's how I worded it,
A I
after the PBT.
at that point.
Q Well, let's -- in fact,, you said on page 6,
line 6, excuse me, after I had asked him to submit to the
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preliminary breath test he did so.
opinion that Mr.
MS.
At that point it was my
Trimble was under the influence of alcohol.
POINTS: Objection to Mr. Lauer providing
emphasis and trying to explain.
he meant.
THE COURT:
the trade is practiced.
The trooper has explained what
Lawyers providing emphasis is the way
Just read the question and read me the
answer.
your total
said.
Then I will know what you said, sir. Give it to him.
MR. LAUER:
THE COURT:
answer, and
Yes, sir.
Read the q~estion,
and then tell me
I'll have the knowledge of what you
MR. LAUER: Judge, just for the record, this was
direct examination. It wasn't even in response to a question.
You can start at page --
THE COURT: Well, start with the question, and then
read me the answer that preceded that business about the PBT.
MR. LAUER: That's what I was getting to. There
was no questioning from me, Judge. He was just testifying on
direct.
question.
BY MR.
not?
THE COURT: Now I know what you said. Okay. Next
LAUER:
Q Sir, did you ask him to do field sobriety tests or
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A No.
Q Did you not testify there initially that you did
ask him to do field sobriety tests on page --
BY MR.
THE COURT:
LAUER:
Q Page 6,
Show it to him.
lines 3 through 5.
A This doesn't
Q It doesn't?
A No. I believe
I corrected myself.
Q Well, what did you
say that I asked him to submit.
I started to say something and then
start to say?
A Do you want me to read it?
Q Yes.
A Prior to the stop, there was
another
trooper behind
me, and there was some traffic on the roadway. After I had
asked him to submit to field sobriety -- or, I'm sorry, excuse
me, I had asked him to submit to the preliminary breath test.
Q So there you originally were starting to testify
that you did ask him to do field sobriety tests?
THE COURT: It says exactly what it says. He
started to say something and then he corrected it.
BY MR. LAUER:
Q When you activated your lights, he used his turn
signal and pulled the vehicle over, correct?
A Sir, I don't recall that.
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Q
He pulled his vehicle over safely,
Yes.
He was in control of it, correct?
THE COURT: He pulled it over safely.
question.
BY MR. LAUER:
Q Now,
snow embankments
correct?
Next
according to your testimony, there was snow,
on the berm. Is that not true?
A
crossed the fog line,
the first time?
Here and there, yes.
Well, the point where you're saying his tires
was there snow on the embankments there
A Sir, there was snow throughout the interstate. I
can't specifically say where.
Q So you can't say if there was snow embankments at
either of the locations where this supposedly occurred,
crossing the line?
A I couldn't answer that..
Q You never saw snow fly up or slush fly from the
rear of his vehicle as it was supposedly going into an area
where there was
A No.
MR.
yOU.
snow embankments on the right, correct?
LAUER: That's all the questions I have. Thank
THE COURT: Any redirect?
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MS. POINTS: Very briefly.
REDIRECT EXAMINATION
BY MS. POINTS:
Q Trooper, you testified, I believe, that there were
other vehicles traveling on the interstate that night?
A Yes, ma'am.
Q Was the high wind having an effect on their
driving?
MR. LAUER: Objection, it's irrelevant.
THE COURT: Sustained.
BY MS. POINTS:
Q Mr. Lauer questioned Trooper D'Alessandro about the
high winds with respect to its impact on Mr. Trimble and my
question is --
THE COURT: He didn't ask him about impacting Mr.
Trimble. He said were there high winds, and he said yes.
That's all that came in. Next question.
BY MS. POINTS:
Q Was there something that called your attention to
Mr. Trimble's driving?
MR. LAUER: Objection. It's been asked and
answered.
THE COURT:
MS. POINTS:
THE COURT:
Sustained.
Thank you. That's all.
You may step down. Anything else?
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MS. POINTS: Your Honor, if I did not request that
my exhibit be admitted, at this point I would ask to do so.
Also the Commonwealth --
THE COURT: It is admitted. That is the --
MS. POINTS: The combination of documents. Looking
at the time, Ms. Roe is here. She's prepared to testify.
However, I don't know if her testimony is relevant. I'll leave
that up to Mr. Lauer.
THE COURT: It is your case. Do you want to call
her or not? You make the judgment.
MS. POINTS: Just in the interest of moving the
case along, I'll call her briefly.
Whereupon,
TANYA ROE,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. POINTS:
Q Ms. Roe, just state your name and by whom you're
employed.
A Tanya Roe. I'm employed by the Cumberland County
District Attorney's Office.
Q You heard Trooper D'Alessandro testify --
THE COURT:
THE WITNESS:
THE COURT:
Is that R-o-w?
R-o-e.
R-o-e. I'm sorry.
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BY MS. POINTS:
Q You heard Trooper D'Alessandro testify regarding
the events of the February
correct?
A Yes.
Q
incident?
A Yes.
Q
let arrest of Mr. Trimble, is that
Were you the booking agent involved in the
Were you present when Trooper D'Alessandro read the
chemical test warnings to Mr. Trimble?
A i was in the room, but I was
getting ready and
getting prepared to begin the taping of Mr. Trimble.
Q Did you prepare a report of the events that
evening?
A
Q
events?
A
Q
I did.
Do you have an independent recollection of the
I do remember them, yes.
Would it be helpful to refer to the report while
you testify?
MR. LAUER:
THE COURT:
question.
BY MS. POINTS:
Q
Do you remember
She said she remembers it, Judge.
She said she remembers it. Ask another
any response that Mr. Trimble made
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when Trooper D'Alessandro read the warnings to him?
I don't remember him saying anything. I don't
A
recall.
Q
Did you
evening as far as whether or not he would submit
test?
A
Q
A
ever have a conversation with him that
to the breath
Yes.
What did you say?
I asked him because
test, and he said it was stupid,
he was only tired.
I had to perform the breath
and he wasn't going to because
Q Did you have anymore conversations with him as
as what would happen if he didn't take the test?
No. I did -- I don't know if this matters or
THE COURT: You have answered the question. Next
A
not but --
question.
BY MS.
far
POINTS:
Q Did you notice anything about him as far as his
characteristics or anything about his person?
A Very clean, very nice. He was, you know, pleasant.
So that kind of sticks out. But being so close to him when I'm
doing the interview, I could smell the odor of an alcoholic
beverage on him, and he did tell me that he had been drinking.
Q Did you notice anything else about him as far as
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his eyes,
notice?
his speech?
MR. LAUER:
THE COURT:
Objection, leading.
Sustained. What, if anything, did you
THE WITNESS: I noticed that -- can I give my
personal opinion?
THE COURT: You were not asked that. All you have
been asked is did you notice anything further about his person?
THE WITNESS:
and that's
MS.
Okay.
what I noticed.
POINTS:
MR. LAUER:
odor,
Just the odor. I noticed the
Thank you. That's all.
I have some questions.
CROSS EXAMINATION
BY MR. LAUER:
Mr. Trimble was completely polite with you,
Yes.
And did he appear to be coherent and cognizant?
Yes.
And would you not agree with me that you've spoken
Q
correct?
A
Q
A
Q
to him out front here,
A Yes.
THE COURT:
correct?
You can't ask would you not agree with
is not a direct question.
MR. LAUER: Okay.
me. That
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BY MR. LAUER:
Q Wasn't his speech on the night
as what it is out here today, clear?
A I don't recall.
in question the same
there,
fine,
Q You recall nothing abnormal about his speech then?
A Not that I can recall.
Q Nothing slurred about his speech, correct?
A No, not that I can recall.
Q And you did talk to him that night for quite awhile
correct?
A Yes.
Q And when he walked into booking, he walked in there
correct?
A Yes. I didn't see him falling or anything.
Q No staggering, correct?
A Not
Q His
THE COURT:
ordinary.
BY MR.
that I can recall.
coordination was fine?
She didn't see anything out of the
MR.
LAUER:
Q Now,
LAUER: Okay.
how many people --- his eyes as well. You're
looking at him there, correct?
A Yes.
Q His eyes were not bloodshot,
right?
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A I can't remember,
report. So I don't recall if
not to put that in my report.
it could be from being tired. So
specifically, you know -- I don't
positive of what I'm writing.
and Ii didn't write that in my
they were or not because I tend
He said that he was tired. So
I didn't want to
do it unless I'm totally
Q Okay.
eyes, you would have written that down,
A Yes, if it's extreme, yes.
Q Did you write down in that
were bloodshot?
A No, I did not.
I mean, if you would have seen bloodshot
right?
report that his eyes
Q Did you write down anywhere that his speech was
slurred?
A No.
Q Those are two things that you would write down if
you saw them, right?
A If it was an extreme case, yes, yes.
Q Do you have that intoxication report here?
A I didn't bring it up here with me.
Q Have you used that to refresh your recollection
prior to taking the witness stand?
A
Saturday night.
So you did review that for preparation?
I read it. I wasn't sure if I needed to because
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remember him but
BY MR.
there,
I did.
Q Now, how many people have you seen --
THE COURT: No.
MR. LAUER: Okay.
LAUER:
Q Did you conduct a field sobriety test?
A I did.
Q He was able to stand on one leg for 30
correct?
A I would have to read my report
lot of those. I just can't quite remember.
Q Did he also tell you that he played in
entire night?
A
Q
car salesman?
A Yes.
MR.
Honor.
seconds
again because I do a
a band that
her
tests
Yes.
Did he also tell you he worked that entire day as
LAUER: That's all the questions I have, Your
THE COURT: Anything else?
a
MS. POINTS: Your Honor, may I just show Agent Roe
report to refresh her recollection about the field sobriety
since Mr. Lauer asked about them?
THE COURT: Yes.
MR. LAUER: Just let me see it if you're going to
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show it to her.
BY MS. POINTS:
Q
A
Q
REDIRECT EXAMINATION
Agent Roe, is this your report that you completed?
Yes, it is.
There's a portion that deals with the results of
the field sobriety tests. Do you see that portion?
A Yes.
Q Does that refresh your memory as far as how Mr.
Trimble performed that night?
A I do remember doing it. I mean, I would have
to -- you know, this is what I have to go off of because I do
so many of them. I don't remember --
MR. LAUER: Objection. That's non-responsive to
the question.
THE COURT: She is explaining it perfectly. Next
question.
BY MS. POINTS:
Q What were the results of the field sobriety tests?
A For the horizontal gaze nystagmus --
MR. LAUER: Objection to that.
THE COURT: Sustained on that. That is not
relevant.
BY MS. POINTS:
Q Go onto the next one.
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A
because he
line, and he scored a two on the one-leg stand, two clues,
swaying and putting his foot down.
Q Are those considered to be passing scores
He scored a two, two clues on the walk-and-turn
couldn't keep his balance and he stepped off the
for
on those
tests?
A Well,
us clues
Q
A
it's not a pass or a fail.
whether he was under the influence or not.
What do those clues tell you in this case?
Well, with everything else that we had seen, yes,
It's just to give
MR. LAUER:
THE COURT:
yes.
I'm going to object to that, Judge.
Sustained. Stricken.
THE WITNESS: Well, because of the --
THE COURT: Sustained. Next question.
MS. POINTS: That's all I have, Your Honor.
RECROSS EXAMINATION
Points asked you if that refreshed your
recollection so you say you have to go by that, right?
A Yes.
Q When you give instructions on the one-leg stand --
THE COURT: I am not going to let you go into all
that. Get to what she has testified to.
BY MR. LAUER:
Q MS.
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A
put his foot down?
BY MR. LAUER:
Q You can't tell the Judgle if he put his foot down at
thirty or the count of one according to that report, correct?
I'm sorry?
Where in your report does it say at what number he
A
Q
for 29 seconds
correct?
At what second?
Yes.
No, I didn't write that in.
Are you telling me you can't say he kept it up then
and then put it down at the 29th second,
A Correct. I would have to watch the tape.
Q And if you do the tape as instructed, you do it to
30 or until you tell them to stop, correct?
A Correct.
Q So he could have been at count 32 and then put it
down, from what you're telling me here today, correct?
MS. POINTS: Your Honor,
available.
THE COURT: Sustained.
BY MR. LAUER:
Q The walk-and-turn --
I do have the tape
Next question.
MS. POINTS: Again, Your Honor, I have the tape
We can watch the results.
available.
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THE COURT:
cross-examining the lady.
up. Next question.
BY MR. LAUER:
Q
correct?
BY MR.
Wait a minute. Don't tell me. He is
You are the one that brought this
The walk-and-turn, he took nine steps up the line,
You have the report right in front of you.
MS. POINTS: No,
MR. LAUER: I'll
THE WITNESS:
LAUER:
Q
of what
she doesn't. I have it.
give it to her.
Can you repeat?
Q
records.
Q
A
Q
to say that
He took nine steps
I'm unsure because
up straight, correct?
I don't have my particular paper
I graded him at what step he stepped off.
Where is that paper?
I guess that would be in the D.A.'s office in their
Because we don't keep that.
I just want to be correct here.
really this paper does not refresh
recollection?
A Well, I write this so
Q
what you're
A
Would it be fair
your
I know what he did.
You're telling me this paper tells you what he did,
just saying right now, right?
I write what he did.
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Q Okay.
A Yes. But my other paper scores and what step he
stepped off.
Q So he took nine up. Which way did he turn when he
got to the ninth step, to the left or to the right?
A Well, he did not do an incorrect turn, so that
would make -- you're asking me a question. Do you want me to
answer it or not?
Q Which way did he turn, left --
THE COURT: Do you know?
BY MR. LAUER:
Q Left or right?
A Yes, because he would ?lave turned to his -- it
doesn't say he did an incorrect turn. So he would have turned
with his right foot pivoting around. So that would mean he
would turn to the left.
Q Okay. He didn't lose his balance when he turned,
correct?
A Correct.
Q He did stay on the line for every step of the first
nine?
one.
THE COURT:
She told you what they were.
did right.
Now, wait. She had two clues in each
Let's not go into what he
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BY MR. LAUER:
Q Where did the clue come
you count the clue for stepping off' the
first nine or the second nine?
line?
right.
BY MR.
calls
don't
BY MR.
A
into? On which step did
line? Was that on the
A
I don't have that in front of me.
Do you recall?
No.
Do you remember how far his foot came off of the
No.
He didn't start the test too soon though?
THE COURT: Let's not get into the things he did
You're telling me you don't grade a person if they
out loud?
THE COURT: That is what she said. Next question.
MR. LAUER: Ail right, sir.
LAUER:
Q Did he count out loud?
A I don't recall. We don't grade him on whether he
out.
Q
count
a person they --
Let's not get into that.
LAUER:
Q Do you tell
THE COURT:
I am not
You brought up
letting you completely ask this thing over.
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field sobriety tests. Therefore, it came in on redirect. Now
we're back to you. She said there are two clues. That is what
she put down in her report. It is so simple. Next question.
MR. LAUER: I need to see your report for a second.
If I could approach?
THE COURT: Yes.
BY MR. LAUER:
Q What clues did you give him for the one-leg stand?
THE COURT: She already testified to that. Next
question.
BY MR. LAUER:
Q How did he do something wrong? I know you told me
what he didn't do, but how did he do it wrong on the one-leg
stand?
A Can I see that again?
THE COURT: Yes. You may use that to refresh your
if it says.
recollection,
BY MR. LAUER:
Q
you telling --
COURT: Wait.
Are
THE
look and see now whether you can
answer that question, if you can.
down.
You asked a question. Take a
refresh your recollection and
THE WITNESS: For swaying and putting his foot
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BY MR. LAUER:
Q You just looked at that. no longer
ago and --
THE COURT: Mr. Lauer, do you see
sitting over there in that jury box?
than 30 seconds
any people
MR. LAUER: No, sir.
THE COURT: Do you see 12 people over there?
MR. LAUER: No, sir.
THE COURT: You are dealing with me. I have been
here 21 years. Come on.
MR. LAUER: Yes, sir.
THE COURT: Anymore questions?
MR. LAUER: No, sir.
THE COURT: Anymore questions?
MS. POINTS: No, Your Honor.
THE COURT: You may step down.
I would like to offer as Commonwealth
if the Court would like to review
It is not whether I would like or
Are you moving for the
MS. POINTS:
Exhibit 2 a copy of the tape,
this in chambers.
THE COURT:
whatever. You are the lawyer.
admission of the exhibit?
MS. POINTS:
THE COURT:
MR. LAUER:
Yes, sir.
Any objection?
I'm going to object
to that.
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defense,
take
THE COURT:
MR. LAUER:
THE COURT:
off the record.
(Whereupon,
THE COURT:
Sustained. Any testimony from defense?
No, sir.
The record is closed. Argument,
argument was held off the record.)
We are in recess on this case. I will
it under advisement.
(Whereupon, the hearing was
concluded at 2:25 p.m.)
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CERTIFICATION
I hereby certify that
contained fully and accurately in
the above cause and that this
same.
tlhe proceedings are
the notes taken by me on
is a correct transcript of
Pamela R. ShE. affer
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter~ is herTy approved and
directed to be filed. ~ ~
Ed~B ./WBayley, J.
Ninth Judicial District
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