HomeMy WebLinkAbout10-4848.:
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P. Richard Wagner, Esquire
PA Supreme Court LD. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 2347051
Fax (? 17) 2347080
Attorney For Petitioner
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JUL 2 7 20~u
BECKY A. SAWYER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v. No: Ib-y8y 8 ~1Vl~Te~
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
ORDER
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AND NOW, thisoZ~ y of viC,G! y ''~~~n Petition of Becky A. Sawyer, a hearing
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is set on the License Suspension Appeal for the~day of 010, at 3•'3 ~ o'clock
~.m. in Courtroom No. % of the Cumberland County Courthouse, Carlisle, Pennsylvania, all
proceedings to stay meanwhile.
Notice of said hearing shall be given by Petitioner's counsel to the Department of Transportation ~
Pursuant to § 1550(b) of the Pennsylvania Motor Vehicle Code, Petitioner's appeal shall act as an
automatic supersedeas, and Petitioner's operating privileges shall not be suspended pending final
determination in this matter.
BY OURT:
Distribution:
notary's Office
e of Chief Counsel, PennDOT, 1101 S. Front Street, Harrisburg, PA 17104-2516
nn. Richard Wagner, Esq., 2233 N. Frotrt Street, Harrisburg, PA 17110
7~~811(~
J.
BECKY A. SAWYER,
Petitioner
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
ORDER
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
CUMBERLAND COUNTY
NO. 4848 CIVIL 2010
AND NOW, this 4?RS day of _ kto-11? , 2010, upon
consideration of the Department's Motion to Continue, the Motion is hereby GRANTED, and
the Matter is Continued and rescheduled for hearing on the day of
2010 at 16+ A .m. in Courtroom No. 3, Cumberland County Courthouse, Carlisle,
Pennsylvania.
BY THE COURT
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co
J.
DISTRIBUTION:
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?. Richard Wagner, Esq., The LawaOffices of Mancke, Wagner & Spreha, 2233 North Front
Street, Harrisburg, PA 17110
?/
Philip Bricknell, Esq., PennDOT, Riverfront Office Center-3rd Floor, 1 101 South Front Street,
Harrisburg, PA 17104-2516
(2n t-F-S Mt2LLk--',1
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BECKY A. SAWYER, : IN THE COURT OF COMMON PLEAS OF
Petitioner: CUMBERLAND COUNTY, PENNSYLVANIA
VS NO. 4848 CIVIL 2010
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION:
BUREAU OF DRIVER LICENSING,
Respondent
IN RE: BRIEFS
ORDER OF COURT
AND NOW, this 14th day of September, 2010, the parties
are given until September 29, 2010, to file briefs in support of
their respective positions. I've indicated my findings of fact on
the record, and the parties should be guided accordingly.
-i P. Richard Wagner, Esquire
For the Petitioner
Philip Bricknell, Esquire
For PennDOT
Carl Connellan
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BECKY A. SAWYER, IN THE COURT OF COMMON PLEASE OF
Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF NO. 2010-4848 CIVIL TERM
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
ORDER OF COURT
1 LEO--O'.E1CE
O1= T`F HE PROTHONOTARY
2010 DEC -2 AM 11: 58
CUMBEIiLAND COUNTY
PENINSYLVANIA
AND NOW, this, IT day of DECEMBER, 2010, after hearing the evidence and having reviewed the
briefs filed by the parties in support of their respective positions, the Department's suspension of
Appellant's operating privileges for violation of Section 1547 of the Vehicle Code (CHEMICAL TEST
REFUSAL) is SUSTAINED and the appeal is DISMISSED.
By tbe Ctfurt
Edward E. Guido, J.
," P. Richard Wagner, Esquire
2233 North Front Street
Harrisburg, Pa. 17110
Philip Bricknell, Esquire
Riverfront Office Center
1101 South Front Street
Harrisburg, Pa. 17104-2516 C- C
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BECKY A. SAWYER, : IN THE COURT OF COMMON PLEAS OF
Petitioner: CUMBERLAND COUNTY, PENNSYLVANIA
VS : NO. 4848 CIVIL 2010
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU:
OF DRIVER LICENSING,
Respondent:
TRANSCRIPT OF PROCEEDINGS
IN RE: LICENSE SUSPENSION APPEAL
Proceedings held before the
HONORABLE EDWARD E. GUIDO, J.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on Tuesday, September 14, 2010, in Courtroom Number 3.
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APPEARANCES : ?? -T
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cz; P. Richard Wagner, Esquire Dc-) y' c
For the Petitioner ° Z
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Philip Bricknell, Esquire -C
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For the PennDOT
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INDEX TO WITNESS
FOR COMMONWEALTH DIRECT CROSS REDIRECT RECROSS
Trooper Timothy H. Rymer 6 11 -- --
Trooper Timothy H. Rymer, recalled
on rebuttal 24 27
EXAMINATION
Trooper Timothy H. Rymer, recalled
on rebuttal - by the Court 23, 25
FOR PETITIONER
Becky Ann Sawyer
DIRECT CROSS REDIRECT RECROSS
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INDEX TO EXHIBITS
ADMITTED
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13
FOR COMMONWEALTH IDENTIFIED
Ex. No. 1 - packet of documents 4
Ex. No. 2 - DVD 13
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Tuesday, September 14, 2010
Carlisle, Pennsylvania
(The following proceedings were held at 10:50 a.m.:)
THE
Mr. Bricknell, you
MR.
THE
MR.
Department has the
suspension appeals
COURT: The appeal of Becky Sawyer.
ready to proceed?
BRICKNELL: Yes, Your Honor.
COURT: Okay.
BRICKNELL: As you know, Your Honor, the
burden of proof in these license
THE COURT: I heard that.
MR. BRICKNELL: Yes. And so to -- to meet
that burden the Department has marked an Exhibit 1,
Commonwealth's Exhibit 1, which has already been given to
opposing counsel. And just for the record to talk through
the documents, simply this is a package of documents
relevant to this case.
The first page is a certification and
attestation that they are correct copies of the Department's
records and also just a catalog of the records, the
documents in this package. The first document in this
package is the 3-page notice of suspension sent by the
Department on July 1st, 2010, to the Petitioner here, Becky
A. Sawyer.
And this document -- this notice informs her
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that her operating privilege would be suspended for one year
due to her chemical test refusal on May 29th, 2010. After
the first page informing her of that, the next few pages
tell her about the administrative details of the suspension.
After that 3-page notice, we have a 1-page
document marked No. 2 in the lower right-hand corner. This
is the DL-26 that the Department received in this case
informing us that Becky A. Sawyer refused chemical testing
on May 29th, 2010, and is signed at the bottom State Trooper
Timothy H. Rymer.
Final document is a -- is a four-page copy of
Miss Sawyer's driving record. And then the last page is
just simply another attestation indicating that that's the
last page of the package.
MR. WAGNER: No objection to any of the
exhibits.
THE COURT: No. 1 is admitted.
MR. BRICKNELL: At this time, Your Honor, the
Department will like to call Trooper Rymer to the stand.
TROOPER TIMOTHY RYMER,
having been duly sworn, testified as follows:
MR. WAGNER: Judge, if it please the Court --
and I know counsel for PennDOT has marching orders -- we're
prepared to stipulate, a, the DL-26 was read to my client;
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b, he had a reasonable basis to stop her; c, that she was
placed under arrest; d, that he had a reasonable basis to
ask for her to take a blood test.
The crux of this has to do with the exact
conversation that occurred. There is a tape of it, and then
there will be a dialog between these two become the crux of
our issue if that expedites.
THE COURT: All right. The stipulation is
noted. Let's focus upon the issue.
MR. BRICKNELL: Right, Your Honor. And I
would just at the beginning disagree that the tape is a very
limited tape. But what is of significance is the testimony
we'll hear from Trooper Rymer regarding his interaction with
the Petitioner.
THE COURT: Good. Let's here it.
DIRECT EXAMINATION
BY MR. BRICKNELL:
Q Trooper Rymer, if you could please state your
full name and spell your last name for the record.
A Timothy H. Rymer, R-Y-M-E-R.
Q And Trooper Rymer, who is your employer?
A The Pennsylvania State Police.
Q And how long have you been with the State
Police?
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A Since May 17th of 1993.
Q And were you working for the State Police on
May 29th, 2010?
A I was.
Q And what were your duties that date?
A At that point, I was in a patrol car working
at a DUI checkpoint.
Q And did you come into contact with Becky
Sawyer that day?
A Yes, I did.
THE COURT: All of that has been agreed to.
Let's fast forward to what happened when he requested the
blood after he read the DL-26 to her.
BY MR. BRICKNELL:
Q If you could, we've already stipulated you
read the DL-26, all four paragraphs of the chemical test
warnings. Did you read those verbatim?
A Yes.
Q And you read them once. What happened after
that?
A She said she wanted to speak to a lawyer. I
then sort of paraphrased what it said saying you don't have
a right to an attorney at this point of the process. I
said, Are you or are you not going to give blood? She
basically said, I don't have a problem doing it; but I want
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to talk to an attorney first. That went on about three or
four different times.
Q When you say three or four different times,
explain.
A Just as we were sitting there, I was trying
to explain to her if she didn't do it that she would
probably lose her license for a year according to these
warnings. And she said, I need to talk to a lawyer first.
Q Did you explain to her your understanding
that -- the specific that if she requested an attorney
rather than agreeing that would be grounds for refusal?
A No, I did not explain that to her.
Q Okay. What did you explain to to her?
A I just said that if she does not give blood
it's going to be considered a refusal and she would lose her
license for a year not just -- not so much that just because
she wanted to talk to an attorney first.
Q So you read the warnings to her once?
A Correct.
Q You said you talked about this point three or
four times?
A Correct.
Q What happened then?
THE COURT: At what point did you talk? Are
you telling me you told her three or four times that she has
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no right to talk to a lawyer before she gives blood?
THE WITNESS: That's correct.
THE COURT: Okay.
THE WITNESS: That's correct.
BY MR. BRICKNELL:
Q And was that particular point
three or four times?
A Right. As soon as I read the
Warnings, she said she understood but wanted
lawyer. And then I just sort of paraphrased
warnings were saying, look, you don't -- at
the arrest, you don't have the right to talk
yet.
that came up
O'Connell
to talk to a
what the
:his process of
to an attorney
Q And where did that conversation take place?
A At Cumberland County Prison in their Intake
Unit. That's where they draw blood at now.
Q Okay. And that was the first time you talked
to her at the particular point about speaking to an
attorney?
A Right. Right. She hadn't asked for one on
the ride over or anything. It hadn't come up.
THE COURT: Is that entire conversation on
tape?
THE WITNESS: No. It's outside of that.
It's just when you first walk into the intake room. You
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walk to the left. There's a couple benches there. We were
sitting there as I was reading this stuff to her.
THE COURT: Okay.
BY MR. BRICKNELL:
Q So you read the formal warnings. You
discussed and paraphrased, as you said, three or four times
about this issue. What happened then regarding that?
A That's when -- they're not called a nurse,
whoever draws the blood. I can't think of their medical
term -- came out and took her to the back room why they
actually draw blood. I advised them that she keeps asking
for an attorney. And they said, well, we'll get that all on
tape when they take her to the back room to draw the blood.
Q Now, were you in the back room?
A No, I wasn't. I was still filling out some
of the paperwork there at the prison.
Q So after the -- I think they're called
phlebotomists?
A Okay.
Q After the phlebotomist took Miss Sawyer into
the back room, what happened next?
A I was filling out the paperwork. The
phlebotomist came back out saying she's still asking for an
attorney before she gives blood. We consider that a
refusal. I'm like, okay. That's enough for me; and then I
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filled out the paperwork and left.
Q And right then that was the end of your
interaction?
A That was the end of it.
MR. BRICKNELL: Nothing further.
THE COURT: Cross-examine.
MR. WANGER: Thank you.
CROSS EXAMINATION
BY MR. WAGNER:
Q Trooper, aside from your affidavit of
probable cause that's attached to the original complaint,
did you have independent notes of the conversation in the
early morning hours of the 29th?
A No, because it only lasted 15 minutes maybe.
Q Did you make any kind of notes at any point
to help refresh your recollection?
A Not for the conversation, no.
Q Okay. Is there anything recorded regarding
-- notwithstanding the recording at the booking center --
but is there anything recorded that made at some point
setting out other than the affidavit of probable cause the
exact nature of the conversation you had with Miss Sawyer?
A Not the conversation, no. The traffic stop
was recorded but not the conversation.
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Q Now, is it my understanding that you're
indicating to the Court that you were not present when the
phlebotomist had an exchange with Miss Sawyer that's on the
tape?
A That's correct.
Q And was Miss Sawyer turned over to that
phlebotomist with the idea of the phlebotomist taking blood
from her?
A Correct.
Q Okay. So the idea of turning Miss Sawyer
over to the phlebotomist was to give her, Miss Sawyer, the
opportunity to give blood?
A Correct.
Q And you gave her that opportunity by turning
her over to the phlebotomist?
A Correct.
Q Now, was there some point in time that Miss
Sawyer indicated to you that she did not understand or she
did not hear the O'Connell Warnings when you read them to
her?
A She told me she understood them but she
wanted to talk to a lawyer.
Q Did you review the tape at the booking center
with the phlebotomist?
A No. That is the first time I've seen it.
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Q Did you listen to it when you were --
A A little bit. I was reading over my stuff
Q Just so we're clear, your conversation
occurred, then you turned her over to the phlebotomist, and
the phlebotomist -- you and the phlebotomist gave her the
opportunity to give blood?
A Yes.
MR. WAGNER: No further questions. Thank
you.
THE COURT: Any redirect?
MR. BRICKNELL: No, Your Honor.
THE COURT: Thank you, Corporal. You may
step down. Anything else, Mr. Bricknell?
MR. BRICKNELL: No, Your Honor. As we've
alluded to, there is a recording of the interaction between
Miss Sawyer and the phlebotomist. But we don't have anybody
who can lay a foundation for that for the Department.
MR. WAGNER: I'll stipulate to it.
THE COURT: Okay. Then mark it as Exhibit 2.
MR. BRICKNELL: Yes, Your Honor.
THE COURT: And it's admitted.
MR. BRICKNELL: Okay. Would -- should I play
that for the Court at this time, Your Honor?
THE COURT: Sure.
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(Exhibit No. 2, the DVD, is played for the Court.)
MR. BRICKNELL: That's the extent of the
tape, the recording, Your Honor.
THE COURT: Mr. Wagner.
MR. WAGNER: Call Miss Sawyer to the witness
stand, Your Honor.
BECKY ANN SAWYER,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. WAGNER:
Q Tell the Court your full name, please.
A My name is Becky Ann Sawyer.
Q Where do you live, Becky?
A 990 Pine Road, Carlisle.
Q And are you -- what is your job? Do you have
a j ob?
A I work for Gulley (phonetic) Consulting. I'm
an IT architect.
Q Military background?
A Been in the Army for over -- almost 16 years
now.
Q Recently discharged?
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A No, I'm still in. I just recently got back
from Iraq.
Q What did you get back from Iraq?
A Right at the beginning of this year.
Q 2010?
A Yes, sir.
Q How long were you there?
A I was called to active duty for 19 months and
ended up being in Iraq for a year.
Q And what was your responsibilities over
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A I was company commander of a company of
soldiers responsible for the IT and the communications of a
brigade.
Q Now, we've stipulated to certain things that
happened on the late night of the 28th of May and early
morning hours of the 29th of May. You came into contact
with this Trooper through a checkpoint; is that correct?
A Yes, sir.
Q And you were taken to a booking center here
in Carlisle as it relates to taking a blood test?
A Correct.
Q Now, do you have a recollection of the
conversation you had with the Trooper as it relates to
reading those rights to you and your responses to those?
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A I do.
Q Did you as a result of this incident keep
notes of what. happened?
MR. BRICKNELL: Objection. The whole form of
the questioning is a lot of leading questions, Your Honor.
THE COURT: Mr. Wagner, try not to lead.
MR. WAGNER: Okay.
BY MR. WAGNER:
Q Did -- did you in any way, shape, or form
attempt to record or keep notes of the incident of the early
morning hours of the 29th of May?
A Yes, I did. As soon as I had the
opportunity, I wrote them -- I made a list on the -- on the
29th. As soon as I got home, made a list of everything that
happened, typed that out as well then once I received the
details listing in the mail, I also made a second list just
rebutting some of the information on that. So I documented
everything.
Q I don't want to get into that -- that. I
just wanted to is assert -- indicate you maintained a
record --
A Yes, sir.
Q -- soon after the incident?
A Yes, I did, sir.
Q Now, Trooper indicated to you that he read
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you your rights, what's called a DL-26 form. And it has
been admitted as Exhibit No. 1 to the PennDOT's
presentation.
MR. WAGNER: May I approach, please?
THE COURT: You may.
BY MR. WAGNER:
Q There appears to be on the document marked at
the bottom No. 2 I have been advised of the above and there
appears to be a line for the signature of an operator. That
means you. Does your name appear anywhere on that document?
A No, sir, it does not.
Q Okay. Now, would you please tell me to the
best of your recollection when the Trooper indicated to you
what your rights were from this form what the dialog was
between you and the Trooper?
A Where we were located, sir, in the booking
center?
Q I'm sorry. In the booking center?
A In the booking center there where we were
located was right in foyer where they bring everybody in.
And it was kind of noisy as they were bringing people in.
It was a Friday night, and they were searching people and
talking to people. It was very hard to hear. And after 16
years of being in the military and gun shots and explosions
and flying helicopters, my hearing is not great anyway.
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So as I was trying to listen to what he was
saying, I couldn't focus because I couldn't hear very well.
And at the end -- when he got to the end of the reading, he
said, do you understand. And I said, no, I couldn't hear.
So I couldn't focus on what you were saying. And that was
the extent of the conversation on those rights. And from
that point, him and I had a discussion about his tattoo
because he had a tattoo on his arm from Iraq and having been
in Iraq, we just talked about that.
Q The Trooper indicated to this Court under
oath that he had a conversation with you at some point about
talking with a lawyer where you indicated you wanted to talk
to a lawyer and he told you you didn't have that right. Do
you recall that series of conversations with the Trooper?
A No, sir.
Q Did -- was there any conversation as he was
taking you to the booking center?
A No, not at all.
Q Was there at some point in time that you
mentioned talking with a lawyer?
A No. The first time I ever said anything
about it, sir, was on the tape.
Q You never said to him you wanted to talk to a
lawyer?
A No, not at all.
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Q Did you -- but you did indicate on the tape
that you didn't understand the rights without talking to a
lawyer?
A Correct.
Q Did you at any point in time ever indicate
that you would not take the test unless you had the right to
talk to a lawyer?
A No, not at all.
Q What was your recollection of the
circumstances under which you asked to talk with a lawyer?
A She was -- the lady at the booking center
that -- I'm not sure if she was the one going to give the
blood or if she was just reading a statement. I don't
really know because none of it was very clear. I mean, you
could see that on the tape that I didn't really have an
understanding of what was going on. So when she was reading
through those statements, I wasn't going to just blindly
say, yes, that I understood everything without having
understood. So I said what I said on the tape.
Q Your response was -- in relationship to the
question of do you understand what you're doing, your
response was not without talking to a lawyer?
A Correct.
Q Did she ever ask you on or off the tape will
you take this test?
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A No, not at all.
Q You heard the Trooper indicate that he had a
dialog where at least three occasions he mentioned about
taking a test or not taking a test and you made reference to
an attorney. Was there in your dialog with the Trooper
before you went to that booking center and had the -- the
dialog with the phlebotomist, was there ever mention of
talking with a lawyer or not taking the test until you talk
to lawyer?
A No, sir.
MR. BRICKNELL: Again, Your Honor, I object.
Just generally we're getting a lot of yes or no answers.
There is no real dialog. There is no explanation in the
witnesses own words as there is normally in the direct
testimony.
THE COURT: Mr. Wagner, are we going to swear
you in?
MR. WAGNER: I'm just trying to expedite the
process, Your Honor.
THE COURT: Well, let's -- let's get her
story.
MR. WAGNER: I understand. All right.
BY MR. WAGNER:
Q You saw the film at the booking center. You
saw it even before we could be in a court a few moments
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before you, did you not?
A Yes, sir.
Q Did that accurately represent your
recollection of what transpired there?
A Yes, indeed.
Q Where was the trooper. Was he in the room.
If he was, he was. Do you remember if he was in the room?
I want you to be honest about that.
A Yes, he was.
Q Okay. He told us he was not in the room.
You're telling this Court he was in the room?
A Yes, he was.
Q Did he speak at all on the tape if you know?
A I don't know if you can hear it on the tape,
but when she says, No, we're done, I mean, he also said,
no -- that's right when they shut off the tape. He said, No
they're done. Then after they shut off the tape is when I
protested and said no, I want to take the test. I wasn't --
I wasn't saying I was refusing the test.
I just didn't really understand it. I didn't
feel it was right to blindly say that I understood what was
going on when I didn't. But I absolutely wanted to take the
blood test because I didn't want any repercussions of what
occurs after that.
Q No question in your mind you were put in that
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room by the Trooper with the idea of taking that test?
A Yes, sir.
MR. WAGNER: Thank you. No further
questions.
MR. BRICKNELL: I don't have any questions on
cross. Really, there's not much to --
THE COURT: Thank you, ma'am you may step
down.
MR. BRICKNELL: But, Your Honor, I would like
to ask if I could call Trooper Rymer back to the stand. I
believe in the stipulation the testimony or what we just
heard went beyond the focus just on the question that you
articulated. And I think it's important to get more of the
color of the conversation between -- the earlier parts of
the conversation between Trooper Rymer and Miss Sawyer,
particularly that conversation they had at the booking
center in the foyer, some discussion there which is why we
have the policy of not really stipulating. We like to get
to the whole scenario and explain that. If I could have
Trooper Rymer back on the stand I would be grateful, Your
Honor.
TROOPER TIMOTHY H. RYMER, recalled.
THE COURT: Trooper, please be seated.
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EXAMINATION
BY THE COURT:
Q Were there field sobriety tests done in this
case?
A Yes, there was.
Q How did she do on them?
A Failed the one-legged stand, the walk and
turn. I brought another trooper up to administer the
horizontal gaze nystagmus. I've never gone through that
training and failed that also.
Q Did she indicate she had been drinking?
A She said she had a couple. If I am not
mistaken, she was coming from a band party or something.
Q And did you form an opinion as to whether or
not she was under the influence of alcohol to a degree that
rendered her incapable of safe driving?
A Yes, after the field sobriety tests, the
horizontal gaze nystagmus, and the PBT, that's when she was
placed under arrest and taken to the booking center.
Q Okay. You weren't drinking that night, were
you?
A No, sir.
THE COURT: All right.
MR. BRICKNELL: Your Honor.
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DIRECT EXAMINATION
BY MR. BRICKNELL:
Q Trooper, Rymer, what was the -- what was the
reading of the PBT?
MR. WAGNER: Objection.
THE COURT: Overruled.
BY MR. BRICKNELL:
Q It's overruled.
A Okay. If I'm into the mistaken, I think it
was a .14.
Q Okay. And so you did the field sobriety
tested, and I believe you just said she failed?
A Correct. The one legged stand she --
THE COURT: I got all of that.
BY MR. BRICKNELL:
Q So after you arrested her, what was the
nature of your interaction with her after she failed the
test and you said I'm placing you under arrest?
A She was actually angry with me at that point
saying she just got back from Iraq. I explained to her I
understood that. I served a year over there during when we
first took Baghdad, and so she was angry. I was like, look,
you know, it's not my call. You're over the limit. I have
to take you in.
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Q All right. And so she -- she was angry with
you. How did you know that she was angry with you?
A Not -- when we left the scene, there was
really no conversation in the car other than what's going to
happen once we get to the prison. When we got there, we
were talking and she was --
Q If we could just stop for a second. So she
asked what was going to happen when she gets to the prison?
A Right. Basically I was just saying we're
going to be asked to draw blood. I'll read the consent
warnings. If everything goes fine, you'll be released
tonight. She was worried about her car that we had pulled
off into the -- there was a parking lot there too.
EXAMINATION
BY THE COURT:
Q When you read the consent warnings, did she
indicate at any time she didn't hear what you were saying?
A No. There was only one other person at that
time being booked through the booking center which happened
to be from the DUI checkpoint from another trooper.
Q And what were her exact words after you
finished the warnings?
A She said she understood but she wanted to
talk to a lawyer. And I kept trying to explain to her, at
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this point, you don't have that opportunity do that. Once
all this stuff is done, then you need to contact one.
Q And then you passed her over to the booking
center personnel?
A Correct. And they took her into the back
room while I had to go fill out the booking slip and all of
that kind stuff in the front.
Q Had she indicated at that point she would not
give the blood test?
A I don't know what she said.
Q No to you? To you?
A No. She never said she wasn't going to take
the test. She just kept saying, I want to talk to a lawyer.
Q I saw what she said back there.
A Right. That's what she had told me, like,
three times outside. And I still gave her the opportunity
to go back with the phlebotomist -- I guess that's what
they're called -- back there and maybe she would give blood.
The phlebotomist came outside and said, She's still
requesting a lawyer. I'm like, Okay. I'm done.
DIRECT EXAMINATION, cont'd
BY MR. BRICKNELL:
Q And when you read the warnings to
Miss Sawyer, you read them verbatim; is that correct?
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A Yeah. That's our -- we have to read it word
for word.
THE COURT: All that was agreed upon.
BY MR. BRICKNELL:
Q Now, you said she was angry when you arrested
her. What was the nature of your conversation when you were
in the foyer at the booking center?
A She kept telling me she couldn't believe that
I was doing that to her being that with the tattoo on my arm
which says, Operation Iraqi Freedom, that I was doing that
to another solder.
MR. BRICKNELL: No further questions, Your
Honor.
THE COURT: Mr. Wagner.
MR. WAGNER: Just one or two.
CROSS EXAMINATION
BY MR. WAGNER:
Q The phlebotomist came out
said from a room she was in with Miss Sai
A Correct.
Q And the phlebotomist said
refusing to take the test?
A No. She said she's still
still requesting a lawyer and won't give
from the -- you
vyer?
to you, She's
-- she said she's
blood.
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Q Okay. Did she say that she wanted to talk to
a lawyer about understanding her rights or she wanted to
talk to a lawyer about whether to take the test or not? Did
she make the distinction?
A All the phlebotomist said was she still wants
to talk to a lawyer.
Q She didn't -- she didn't describe whether
talking to a lawyer was in relation to taking the test or
talking to a lawyer in relation to the confusion over the
reading of the rights?
A No. The phlebotomist didn't specify the
difference between the two.
Q And you in fact gave Miss Sawyer the
opportunity take that test by turning her over to that
phlebotomist?
A Yes, because I still went through the
process. Even though she said she wanted to talk to a
lawyer, I still sent her back to that back room to have
blood drawn.
MR. WAGNER: Thank you very much.
THE COURT: Thank you, Trooper. You may step
down.
MR. BRICKNELL: With that, Your Honor, the
Department rests.
THE COURT: Okay. Mr. Wagner?
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MR. WAGNER: Likewise.
THE COURT: We find the testimony of the
Trooper to be credible. That doesn't end the case. As I
saw the tape -- and I'll look at it again if you want me
to -- the only thing I saw was the phlebotomist giving a
half-hearted attempt to give her the O'Connell warnings and
asking her does she understand. And she says, no, not
without talking to my lawyer. She never refused to give
blood. She was never asked to give blood by the
phlebotomist. Do you see anything different than that on
the tape? Do you want to play it again?
MR. BRICKNELL: No. You're -- your depiction
of the recitation of what's on the tape is accurate, Your
Honor; but I think that's -- if you find the credibility --
the testimony of this officer --
THE COURT: I find that he was -- I find that
he was credible; but she never said to him, I'm not going to
give blood.
MR. BRICKNELL: She doesn't have to say that,J
Your Honor.
THE COURT: He made clear to her that she
didn't have the right to a lawyer.
MR. BRICKNELL: That's right, Your Honor.
THE COURT: Okay. He gave her to the
phlebotomist, and she agreed to go with the phlebotomist
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presumably to give blood. And innocuous question was asked,
Do you understand these rights? An honest answer was given,
No, I don't, not without talking to a lawyer. And nobody
asked her to give blood.
MR. BRICKNELL: It's actually in the
warnings, Your Honor. When he read -- the consent warnings
have the request to give blood.
THE COURT: I understand.
MR. BRICKNELL: So she was asked to give
blood.
THE COURT: We're chasing our tail.
MR. BRICKNELL: We are not, Your Honor. And
I disagree. And I believe the Commonwealth Court would
disagree with the position you're taking.
THE COURT: Well, give me the case.
MR. BRICKNELL: Okay. The cases. The first
one is the O'Connell case which is the ground -- groundwork
foundation for the warnings cases which is the Supreme Court
case at 555 --
THE COURT: Don't -- I know all of those
things Mr. Bricknell. This is a very specific issue. She
went back with the phlebotomist to give blood. She was
asked, Do you understand what's going on? Do you understand
the warnings? They didn't have to ask her if she understood
the warnings.
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She gave an honest response, I don't
understand the warnings without talk to go my lawyer. She
didn't say, I'm not going to give blood. They never asked
her to give blood. He did. She agreed by going back in
there. The phlebotomist dropped the ball.
Now give me a specific case on a finding of
fact where I find the phlebotomist asked a question that
didn't need to be asked, she answered it honestly, and the
phlebotomist threw up her arms, and said we're done. The
Trooper didn't witness that.
MR. BRICKNELL: Your Honor, I don't -- I
don't know of a specific case with the fact pattern of a
phlebotomist --
THE COURT: Do you need some time find it?
MR. BRICKNELL: No. But I do have cases
where the warnings were read as here, the request was made
to speak to an attorney, and that was considered refusal
because it isn't so much whether somebody specifically says
I refuse to take this test. There is case law -- I can't
recall that one case -- but there is case law that the
driver's actions can be taken to constitute a refusal.
THE COURT: I understand that.
MR. BRICKNELL: Right. And so that -- and,
well, that case, just to give you that is Hirsch,
H-I-R-S-C-H. And that is at 702 A.2d 375.
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THE COURT: 702 A.2d 375. Want to get that
MR. BRICKNELL: But there is -- there is
longstanding case law, of course, that this isn't a time for
hand holding or cajole the person or continue. It was very
clear.
THE COURT: And he didn't. He didn't. If it
was based upon -- if the Trooper had declared out there you
want a lawyer, that's a refusal, I'd probably uphold this.
But he didn't, and she went in to give the blood. And then
your phlebotomist screwed it up. When the phlebotomist
simply had to say, Do you understand?
MR. BRICKNELL: So you're saying if -- if
before she went to phlebotomist the Trooper said, This is a
refusal, you'd uphold that?
THE COURT: No. I'm saying she asked for a
lawyer, and the Trooper said you're not entitled to a
lawyer. Okay. And -- and --
MR. BRICKNELL: Even if the warnings said --
THE COURT: She agreed to go in and give
blood. She agreed at that point to go in and give blood.
She knew what she was doing. He put her in there to give
blood, and he didn't stay. And based upon what I saw there,
your phlebotomist dropped the ball. She did not ask her --
first of all, she didn't have to give her the O'Connell
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warnings.
She said, You're here to draw blood. Do you
understand? And she said, I don't without talking to my
lawyer. But she didn't say, I'm not going to give blood.
They never asked her to give blood. Why would she go in
there if she wasn't going to give blood.
MR. BRICKNELL: Well, for the same reason we
have people that go in for breath tests who don't actually
give breath when they actually are blowing into the machine.
THE COURT: Well, I can look at that and
understand that. But I'm looking at this; and she didn't
say -- she wasn't asked, Will you give blood? And she says,
No, I want to talk to my lawyer. She was asked, Do you
understand your rights or do you understand was the
question.
And she said, No, I don't, not without
talking to my lawyer. But that didn't mean she wasn't going
to give the blood. They didn't ask the next question. They
asked if she understood. Her going in there tells me that
she was going in at least with the intention of giving the
blood. And your phlebotomist --
MR. BRICKNELL: But the phlebotomist doesn't
have the duty to be asking specific questions. The police
officer does.
THE COURT: Correct. She doesn't, and she
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shouldn't have. She screwed it up. If she was silent and
went over and offered to draw the blood and she said, No,
I'd sustain your position in heartbeat. But she didn't.
She asked her, Do you understand your rights? Do you
understand this procedure? And she honestly answered that I
don't understand the procedure and I won't until I talk to
my lawyer. But she didn't say, I'm not going to give blood.
I'll read the Hirsch case. I'm willing to bet that I can --
that it's distinguishable because this seems to be an awful
Draconian result.
This is -- the Hirsch case that you just gave
me, the Defendant or the Appellant affirmatively refused to
submit to the test and requested to speak to an attorney.
And he kept interrupting the reading of the DL-26 saying
that he wanted to speak to a lawyer, and then he again
refused the test.
There was never a refusal in this case. At
the office -- at the Corporal's request -- and I believe
every word he said. He wasn't drinking. She was. At his
request, she went into the phlebotomist. She didn't say,
No, I'm not going in without having an attorney. She went
into the phlebotomist.
She was asked a -- a simple question to the
effect, Do you understand the procedure? And she answered,
Not without speaking to an attorney. She didn't say, I'm
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not going to give this blood test unless I get to talk to my
lawyer. She -- the phlebotomist just stopped it right
there. Okay. We're done.
MR. BRICKNELL: Well, there are a few
circumstances. One of them is the fact that Cumberland
County has recently switched over to a relatively new
booking center and is focussing on blood tests as opposed to
breath test. So perhaps they do need to work out their
procedure.
THE COURT: Seems to me that to be the case.
MR. BRICKNELL: I believe, Your Honor -- and
this just a final point. I believe this is analogous to
many of the drivers we've seen before in refusals where they
don't affirmatively say, I'm refusing. They agree; and when
there was a breath test involved, they would try and beat
the test while they are in there. Obviously, she is not --
we don't have any physically fighting off the needle here.
But what we do have is somebody who consistently articulated
a reason or an impediment to taking the test. As the case
law says, anything less than unequivocal, unqualified
agreement is a refusal.
THE COURT: I find as a fact that her walking
into that room with the phlebotomist was an unqualified
agreement to take to the test. Now, she could have vitiated
once she was in that room. But the question by the
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phlebotomist didn't show me any vitiation at all.
Now, those are the facts that I find. If
you've got -- you want the opportunity to write a brief to
point out some case law that -- that I have missed or that
would hold on these facts, that -- that this is a refusal, I
will be happy --
MR. BRICKNELL: I would be grateful for that
opportunity, Your Honor, if we could have a short briefing
schedule.
THE COURT: Okay. How much time do you need?
MR. BRICKNELL: A couple of weeks, two weeks
would be very good.
THE COURT: All right.
ORDER OF COURT
AND NOW, this 14th day of September, 2010, the parties
are given until September 29, 2010, to file briefs in
support of their respective positions. I've indicated my
findings of fact on the record, and the parties should be
guided accordingly.
THE COURT: I'll just note that if this holds
up your client is lucky. I didn't believe many of the words
that she had to say, and to attack the credibility of the
Officer didn't get her very far.
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MR. WAGNER: I understand that. Thank you.
We just note when he offered that opportunity, that -- that
from our perspective created the circumstance that we must
look at as the Court did in what happened in that room. If
he would have never offered her the opportunity to walk into
the room, different story. But when he said, Go into that
room with the phlebotomist, that created the opportunity.
And then we must focus on what happened there.
THE COURT: I think that's my focus.
(The proceedings concluded at 11:27 a.m.)
37
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.
r
` f
L. ortez, RPR
fficial Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Id Lall d
Date
Edward E. Guido, J.
38
FILED-CFFiCI
yr?Pv
N17 THE PROW"
2 9 1:i 0 ro-C L M 2
,,U 1 i"EN a S ! t?'lj?a N
\
ti'\
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
V.
: NO: 4848 CIVIL 2010
: LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
ORDER
AND NOW, this 2 r day of , 20 10 , upon consideration of the within
Petition, a Supersedeas is granted during the pendency of the Petitioner's appeal to the
Commonwealth Court. Petitioner's license suspension is hereby enjoined pending the outcome
of the appeal to the Commonwealth Court.
BY THE COURT:
4
J.
Distribution:
P. Richard Wagner, Esq., 2233 N. Front St., Harrisburg, PA 110
Philip Bricknell, Esq., Riverfront Office Center, 1101 S. Front St., Harrisburg, PA 17104-2516
Cy-
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
V. NO: 4848 CIVIL 2010
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
PETITION FOR SUPERSEDEAS
AND NOW, comes the Petitioner, Becky A. Sawyer, by and through her attorneys,
Mancke, Wagner & Spreha, and files the following Petition For Supersedeas:
1. Petitioner, Becky A. Sawyer, is an adult individual residing at 990 Pine Road, Carlisle,
Cumberland County, Pennsylvania.
2. The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing, suspended the Petitioner's driving privileges for one (l) year by official notice mailed
on July 1, 2010, for an alleged failure to submit to a chemical test on May 29, 2010 (75
Pa.C.S.A. §1547).
3. Your Petitioner filed a timely license suspension appeal docketed to the above number
and term.
4. The issues raised by the Petitioner on appeal and at the time of the hearing including,
but were not limited to, the licensee not refusing to take a blood test, but merely answering a
question posed to her by the booking agent at the Cumberland County Booking Center.
5. A hearing on the appeal was held before the Honorable Judge Edward Guido on
December 14, 2010.
6. On December 1, 2010, the court entered an Order denying the appeal of the licensee.
7. Your Petitioner herein intends to file an appeal with the Commonwealth Court of the
court's ruling. (See Exhibit A)
8. Your Petitioner believes she will ultimately be successful in her appeal in that the
licensee answered a question of the booking agent but did not refize to take a blood test from the
booking officer.
9. On December 27, 2010, the undersigned counsel, P. Richard Wagner, Esquire,
contacted Philip Bricknell, Esquire, of the Department of Transportation, who did not concur in
the request for a supersedeas.
10. Unless this Court grants this Petition, Petitioner, Becky A. Sawyer, will suffer
irreparable injury while waiting for the Commonwealth Court to rule for the following reasons:
A. Petitioner is gainfully employed by the Deloitt Consulting Firm in Harrisburg,
Pennsylvania, for which she has to do client visits;
B. Petitioner/Licensee lives in Carlisle, Pennsylvania and her only means of
-2-
transportation back and forth from work as well as while at work is her license;
C. In addition to the above, the Petitioner/Licensee has an obligation to the military
having recently returned from Iraq and must go to Fort Indiantown Gap one
weekend per month; and
D. In addition to the above, Petitioner needs her license for her two week Summer
obligation to the military, and
E. Her operating privileges would be suspended pending the outcome of the appeal.
WHEREFORE, Petitioner, Becky A. Sawyer, prays this Court to enter a Supersedeas of
the Order of December 1, 2010, which dismisses the license suspension appeal and for such othe
relief as the Court deems appropriate.
Respectfully Submitted,
Mancke, Wagner & Spreha
P. agner, Esquire
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Petitioner
Date: /A R 8//v
-3-
VERIFICATION
I verify that the statements made in the foregoing document are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904,
relating to unsworn falsification to authorities.
Date: 21 DEC ZOO p
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
k1ancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
V.
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
NO: 4848 CIVIL 2010
LICENSE SUSPENSION APPEAL
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN that Petitioner above, Becky A. Sawyer hereby appeals to
the Commonwealth Court of Pennsylvania from the Order entered in this matter on the l' day of
December, 2010. This Order has been entered in the docket as evidenced by the attached copy of
the docket entry.
Respectfully Submitted,
P. Richard Wagner, Esquire
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Petitioner/Appellant
Date:
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
V. NO: 4848 CIVIL 2010
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
REQUEST FOR TRANSCRIPT
A notice of appeal having been filed in this matter, the official court reporter is hereby
requested to produce, certify and file the transcript in this matter in conformity with Pa.R.A.P.
1922.
A copy of the transcript is also being requested to be sent to the undersigned counsel for
Becky A. Sawyer.
Date:
Respectfully Submitted,
P. Richard Wagner, Esquire
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Petitioner/Appellant
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
V.
NO: 4848 CIVIL 2010
: LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
PROOF OF SERVICE
I hereby certify that I have on this day and date duly served a true and correct copy of the
foregoing document upon the persons and in the manner indicated below, which service satisfies
the requirements of Pa.R.A.P. 121:
HAND DELIVERY
Judge Edward E. Guido
Court Reporter
Melissa H. Calvanelli, Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
FIRST CLASS MAIL
By depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first
class postage, prepaid, and addressed as follows:
Philip Bricknell, Esquire
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
P. Richard Wagner, Esquire
Mancke, Wagner & Spreha
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Petitioner/Appellant
Date:
BECKY A. SAWYER,
Petitioner
V.
IN THE COURT OF COMMON PLEASE OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
NO. 2010-4848 CIVIL TERM
ORDER OF COURT
AND NOW, this, 1ST day of DECEMBER, 2010, after hearing the evidence and having reviewed the
briefs filed by the parties in support of their respective positions, the Department's suspension of
Appellant's operating privileges for violation of Section 1547 of the Vehicle Code (CHEMICAL TEST
REFUSAL) is SUSTAINED and the appeal is DISMISSED.
By the Court,
Edward E. Guido, 1.
P. Richard Wagner, Esquire
2233 North Front Street
Harrisburg, Pa. 17110
Philip Bricknell, Esquire
Riverfront Office Center
1101 South Front Street
Harrisburg, Pa. 17104-2516
:sld
PY
Cumberland County Prothonotary's Office
Civil Case Print
Page 1
2010-04848 DEPARTMENT OF TRANSPORTATION (vs) SAWYER BECKY A
Reference No..: Filed........: 7/23/2010
Case Type.....: CIVIL APPEALS - AGENCI Time........
Judgment......: 00 Execution Date 0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
PENNSYLVANIA COMMONWEALTH OF PLAINTIFF
TRANSPORATION BUREAU OF DRIVER
THIRD FLOOR
RIVERFRONT OFFICE CENTER
HARRISBURG PA 17104 2516
SAWYER BECKY A DEFENDANT WAGNER P RICHARD
990 PINE ROAD
CARLISLE PA 17015 9373
* Date Entries
********************************************************************************
7/23/2010 APPEAL FROM SUSPENSION OF DRIVERSELICENSE - BY P RICHARD WAGNER
ATTY FOR APPELLANT
------------------------
-------------------------------------------
7 28/2010 ORDER - DATED 07 27 2010 - /IN /RE LICENSE SUSPENSION APPEAL - DULE EDWARIDGEIGUIDOEJ - COPIESOMAILED007/2 8/3:20310
0 PM IN CR # 3 - BY
-------------------------- - _
8/23/2010 MOTION FOR CONTINUANCE - BY PHILIP M BR.ICKNELL ATTY FOR DEF
--------------------------------- _ _ _ _ _
8/26/2010 ORDER DATED 8-25-10 IN RE MOTION TO CONTINUE IS **GRANTED** -
HEARING RESCHEDULED FOR SEPTEMBER 14 2010 AT 10 30 AM IN CR 3 - BY
THE COURT EDWARD E GUIDO J - COPIES MAILED 8-26-10
-------------------------------------------- _____
9/16/2010 ORDER OF COURT DATED 9-14-10 IN RE BRIEFS- PARTIES HAVE UNTIL
9-29-10 TO FILE BRIEFS - BY THE COURT EDWARD J GUIDO J - COPIES
MAILED 9-16-10
------------------------- _ ________________
12/02/2010 TRANSCRIPT OF PROCEEDINGS - BY EDWARD E GUIDO J
------------------------------------------------------
12/02/2010 ORDER OF COURT - 12/1/10 - AFTER HEARING THE EVIDENCE AND HAVING
REVIEWED THE BRIEFS FILED BY THE PARTIES IN SUPPORT OF THEIR
RESPECITVE POSITIONS THE DEPARTMENTS SUSPENSION OF APPELLANTS
OPERATING PRIVILEGES FOR VIOLATION OF SECTION 1547 OF THE VEHICLE
CODE IS SUSTAINED AND THE APPEAL IS DISMISSED - BY EDWARD E GUIDO
J - COPIES MAILED 12/2/10
- - - - - - - - - - - LAST ENTRY - - - - - - - _
********************************************************************************
*
* Fees & Debits Escrow Information
******************************Beg?*Ba.****Pym**/Adj**?***E*d*Ba*******************
COMPLAINT 55.00 55.00 .00
TAX ON CMPLT
SETTLEMENT 'S0 •50 .00
AUTOMATION 8.00 8.00 .00
FEE 5.00 5.00 .00
JCP
23.50 23.50 .00
------------------------ ------------
92.00 92.00
*****7F*7k7k********?'?cFF*t7k7k***tkF*7FF***kic*Ficic*******thicF*F*it**.00
:F***k*?c**'***kFic******
* End of Case Information
t*******kt**t*********F*tt*****Ft***1'*********tF****?c****'kk*t?c;e*izi-*************
TRUE COPY FROM RECORD
M TeStimo ry whwad, i hen unto set my hand
and the seal of "W Cipt at Cartisle, Pa.
This.., d LVA 201.
6a- ?. ", 4?p%? Prothonotary
FILED-OFFICE
OF TtjE PROTHONOTARY
2010 [??C 3 0 ?.R•i t l? 5 ?+
CU 1BERLr^ND coulsTY
nw 11A,
NSYLVP,
P. Richard Wagner, Esquire
?A Supreme Court I.D. #23103
Mawke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
V. NO: 4848 CIVIL 2010
LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN that Petitioner above, Becky A. Sawyer hereby appeals to
the Commonwealth Court of Pennsylvania from the Order entered in this matter on the 1 ' day of
December, 2010. This Order has been entered in the docket as evidenced by the attached copy of
the docket entry.
Respectfully Submitted,
agner, Esquire
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Petitioner/Appellant
Date: m, 'A9 m
?p OXj
tIA8 L, -?
cV1* a?q
eater
C"? ?1!,M.cNU? ..k
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER
Petitioner,
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: NO: 4848 CIVIL 2010
: LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
REQUEST FOR TRANSCRIPT
A notice of appeal having been filed in this matter, the official court reporter is hereby
requested to produce, certify and file the transcript in this matter in conformity with Pa.R.A.P.
1922.
A copy of the transcript is also being requested to be sent to the undersigned counsel for
Becky A. Sawyer.
A ti D
Date: /
'J41 I
Respect ly Submitted,
// :: ?
P. AWw&Wa-igner, Esquire
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Petitioner/Appellant
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Petitioner
BECKY A. SAWYER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Petitioner,
V.
NO: 4848 CIVIL 2010
: LICENSE SUSPENSION APPEAL
COMMONWEALTH OF PENNSYLVANIA:
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING
Respondent.
PROOF OF SERVICE
I hereby certify that I have on this day and date duly served a true and correct copy of the
foregoing document upon the persons listed below by depositing the same in the United States
Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows,
which service satisfies the requirements of Pa.R.A.P. 121:
The Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Court Reporter
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Melissa H. Calvanelli, Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Date: /-;? d y
Philip Bricknell, Esquire
Riverfront Office Center
1101 South Front Street
Harrisburg, P,A 17104-2516
P. Richard , Esquire
Mancke, Wagner & Spreha
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Petitioner/Appellant
BECKY A. SAWYER,
Petitioner
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
IN THE COURT OF COMMON PLEASE OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2010-4848 CIVIL TERM
ORDER OF COURT
AND NOW, this, 1ST day of DECEMBER, 2010, after hearing the evidence and having reviewed the
briefs filed by the parties in support of their respective positions, the Department's suspension of
Appellant's operating privileges for violation of Section 1547 of the Vehicle Code (CHEMICAL TEST
REFUSAL) is SUSTAINED and the appeal is DISMISSED.
By the Court,
Edward E. Guido, J.
P. Richard Wagner, Esquire
2233 North Front Street
Harrisburg, Pa. 17110
Philip Bricknell, Esquire
Riverfront Office Center
1101 South Front Street
Harrisburg, Pa. 17104-2516
sld
f'YS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2010-04848 DEPARTMENT OF TRANSPORTATION (vs) SAWYER BECKY A
Reference No... Filed......... 7/23/2010
Case Type.....: CIVIL APPEALS - AGENCI
Judgment..... 00 Time........
Execution Date 2:36
0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date.
t 1
i
h
C 0/00/0000
------------ Case Comments ------------- r
.:
H
g
er
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
PENNSYLVANIA COMMONWEALTH OF PLAINTIFF
TRANSPORATION BUREAU OF DRIVER
THIRD FLOOR
RIVERFRONT OFFICE CENTER
HARRISBURG PA 17104 2516
SAWYER BECKY A DEFENDANT WAGNER P RICHARD
990 PINE ROAD
CARLISLE PA 17015 9373
********************************************************************************
* Date Entries
********************************************************************************
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
7/23/2010 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - BY P RICHARD WAGNER
ATTY FOR APPELLANT
----------------//---//------------------------------------------------
3:30SUSPENSION CR #APPEAL - BY
7/28/2010 HORDER - EARING DATED CHE07 DULED2FOR %01/R2010LICENSE
EDWARD E GUIDO J - COPIES MAILED 07/28/2010
-------------------------------------------------------------------
8/23/2010 MOTION FOR CONTINUANCE - BY PHILIP M BRICKNELL ATTY FOR DEF
-------------------------------------------------------------------
8/26/2010 ORDER DATED 8-25-10 IN RE MOTION TO CONTINUE IS **GRANTED** -
HEARING RESCHEDULED FOR SEPTEMBER 14 2010 AT 10 30 AM IN CR 3 - BY
THE COURT EDWARD E GUIDO J - COPIES MAILED 8-26-10
-------------------------------------------------------------------
9/16/2010 ORDER OF COURT DATED 9-14-10 IN RE BRIEFS- PARTIES HAVE UNTIL
9-29-10 TO FILE BRIEFS - BY THE COURT EDWARD J GUIDO J - COPIES
MAILED 9-16-10
-------------------------------------------------------------------
12/02/2010 TRANSCRIPT OF PROCEEDINGS - BY EDWARD E GUIDO J
-------------------------------------------------------------------
12/02/2010 ORDER OF COURT - 12/1L10 - AFTER HEARING THE EVIDENCE AND HAVING
REVIEWED THE BRIEFS FILLED BY THE PARTIES IN SUPPORT OF THEIR
RESPECITVE POSITIONS THE DEPARTMENTS SUSPENSION OF APPELLANTS
OPERATING PRIVILEGES FOR VIOLATION OF SECTION 1547 OF THE VEHICLE
CODE IS SUSTAINED AND THE APPEAL IS DISMISSED - BY EDWARD E GUIDO
J - COPIES MAILED 12/2/10
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Be*q*Bal*** mts/Adl End Bal
******************************** ****P ****** *******************************
COMPLAINT 55.00 55.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 8-.00 8.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 23.50 23.50 .00
------------------------ ------------
92.00 92.00 .00
* End of Case Information
TROE COPY FROM RECORD
In Teg&wny whei$4 t hsn unto W my hand
and tha "d of 6" CWA at CarI". Pa-
ct 1
ThM ..9??: f PnAhonotwY
j?E?pcA k . of
BECKY A. SAWYER,
Plaintiff
V.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
w
rnm
NO. 4848 CIVIL 2010 W?
C__
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-MK -tom
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LICENSE SUSPENSION APPEAL c
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ORDER OF COURT
AND NOW, this 3`d day of JANUARY, 2011, plaintiff's counsel P. Richard
Wagner, Esquire, shall file of record and serve on this judge within twenty-one (21) days of this
date, a concise statement of errors complained of on appeal. Any issue not properly included in
the concise statement timely filed and served pursuant to Rule 1925 (b) shall be deemed waived.
By the ,
Edward E. Guido, J.
,/ P. Richard Wagner, Esquire
/ Philip Bricknell, Esquire
cDP18s 00
if
:sld
-ft
Colmttonb cattf; Court of VPnnop[banfa
Kristen W. Brown
Prothonotary
Michael Krimmel, Esq.
Chief Clerk of Commonwealth Court
January 5, 2011
NOTICE OF DOCKETING APPEAL
RE: Sawyer v. DOT
2753 CD 2010
Filed Date: December 30, 2010
Trial Court Docket No: 4848 CIVIL 2010
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 2100
P.O. Bog 69185
HarL1urg,T 1714-9185
vQKW.Pac0t+ts.us
rn ?
r !.
p
`-c
`_:
A Notice of Appeal from an order of your court has been docketed in the Commonwealth
Court of Pennsylvania. The Commonwealth Court docket number must be on all
correspondence and documents filed with the court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal
has the effect of directing the Court to transmit the certified record in the matter to the
Prothonotary of the Commonwealth Court.
The complete record, including the opinion of the trial judge, should be forwarded to the
Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not
transmit a partial record.
Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission
of the record.
The address to which the Court is to transmit the record is set forth on the next page of this
notice.
NOTICE TO COUNSEL
A copy of this notice is being sent to all parties or their counsel indicated on the proof of
service accompanying the Notice of Appeal. The appearance of all counsel has been entered on
the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of
the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa.R.A.P. 907
(b).
Appellant or Appellant's attorney should review the record of the trial court, in order to insure
that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance
must accompany records in Zoning Appeal cases).
The addresses to which you are to transmit documents to this Court are set forth on the next
page of this Notice.
If you have special needs, please contact this court in writing as soon as possible.
Attorney Name Participant Name Participant Type
Paul Richard Wagner, Esq. Becky A. Sawyer Appellant
Philip Murray Bricknell, Esq. Bureau of Driver Licensing Appellee
Address all written communications to:
Office of the Chief Clerk
Commonwealth Court of Pennsylvania
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 2100
P.O. Box 69185
Harrisburg, PA 17106-9185
(717) 255-1650
Filings may be made in person at the following address (except on Saturdays, Sundays and
holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m.
Office of the Chief Clerk
Commonwealth Court of Pennsylvania
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 2100
P.O. Box 69185
Harrisburg, PA 17106-9185
(717) 255-1650
Pleadings and similar papers (but not paperbooks or certified records) may also be filed in
person only at:
Office of the Chief Clerk
Commonwealth Court of Pennsylvania
Filing Office
Suite 990
The Widener Building
1339 Chestnut Street
Philadelphia, PA 19107
(215) 496-4980
The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m.
Under Pa.R.A.P. 3702, writs or other process issuing out of the Commonwealth Court shall exit
only from the Harrisburg Office.
_ r ILED-O Vi'i` r?_
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T t 1. E. j ( r
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P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner, & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax(717)234-7080
Attorney For Plaintiff/Appellant/Licensee
BECKY A. SAWYER, IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Appellant,
V. NO: 4848 CIVIL 2010
CIVIL ACTION - LAW
COMMONWEALTH OF PA
DEPARTMENT OF TRANSPORTATION LICENSE SUSPENSION APPEAL
BUREAU OF DRIVER LICENSING,
Appellee.
CONCISE STATEMENT OF MATTERS COMPLAINED OF
AND NOW, comes the Appellant/Licensee, Becky A. Sawyer, by and through her
attorneys, Mancke, Wagner & Spreha, and files the following Concise Statement of Matters
Complained Of pursuant to Rule 1925(b), as Ordered by the Court of Common Pleas of
Cumberland County on January 3, 2011:
1. The lower court erred in concluding that the Licensee refused to take a test, when she
honestly answered a question of the booking agent (phlebotomist), which said question, asked the
Appellant/Licensee if she understood what was going on.
2. The lower court erred in concluding that the Appellant/Licensee refused to take a
blood test when the Appellant/Licensee answered the question:
Do you understand your rights or do you understand what is going
on?
See, Pg. 23 of Transcript.
3. The lower court erred in concluding that the Appellant/Licensee refused to take a test
when answering the following questions:
Do you understand your rights? Do you understand this procedure?
and then answering, "not until I talk to a lawyer."
4. Did the lower court err in concluding the Appellant/Licensee refused to take a test
when she answered the questions of the phlebotomist, who never offered her a blood test?
Respectfully Submitted,
Mancke, Wegner & Spreha
agner, Esquire
I.D. #23103
2233 North Front Street
Harrisburg, PA 17110
Attorneys For Appellant/Licensee
Date: /- / 7 //
-2-
'`-t
CERTIFICATE OF SERVICE
I, Debra K. Spinner, secretary in the law firm of Mancke, Wagner & Spreha, do hereby
certify that I am this day serving a copy of the foregoing document upon the following persons
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Appellate Procedure, by first class mail, postage prepaid, and addressed as follows:
The Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Phillip Bricknell, Esq.
Bureau of Driver Licensing
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
By/C vhli r??
Debra K. Spinner, ecretary
Mancke, Wagner & Spreha
2233 North Front Street
Harrisburg, PA 17110
P. Richard Wagner, Esquire
Attorney for Appellant/Licensee
Date: / /7 I
46 t
BECKY A. SAWYER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF o
„_
..i
PENNSYLVANIA, DEPARTMENT NO. 4848 CIVIL 2010 zrn s rni=
OF TRANSPORTATION, BUREAU -vm
OF DRIVER LICENSING, r ?
Defendant ?a Q-n
=C qt a
T> C=
X tV --f rte
tU
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., March , 2011
Petitioner has filed the instant appeal from our order of December 1, 2010 which
sustained the Department's suspension of her operating privileges as a result of her refusal to
submit to a blood test. (75 Pa. C.S.A. § 1547). Specifically she contends that her interaction
with the phlebotomist did not constitute a refusal. We agree. However, her responses to the
Trooper's request for her to submit to a blood test did constitute a refusal.
We held an evidentiary hearing on September 10, 2010. The parties stipulated that the
only issue in dispute was whether petitioner refused the blood test.' As part of the hearing we
viewed the videotape of petitioner's encounter with the phlebotomist. We made the following
observation at the end of the hearing:
We find the testimony of the Trooper to be credible. That doesn't end the case.
As I saw the tape - - and I'll look at it again if you want me to - - the only thing I
saw was the phlebotomist giving a half-hearted attempt to give her the
O'Connell warnings and asking her does she understand. And she says, no, not
without talking to my lawyer. She never refused to give blood. She was never
asked to give blood by the phlebotomist.z
1 Transcript of Proceedings, September 14, 2010, pp. 5, 6.
2 Transcript of Proceedings, September 14, 2010, p. 29.
Counsel for the Department argued that the trooper's testimony was enough to establish the
refusal. We were inclined to disagree. However, at the Department's request we reserved our
ruling to allow the parties to submit briefs on the issue. After reviewing those briefs we were
persuaded that the Department's position was correct.
Factual Background
On May 29, 2010 Pennsylvania State Police Trooper Timothy Rymer arrested the
defendant for driving under the influence of alcohol. He transported her to the Cumberland
County Central Booking Center for processing. The Trooper went on to explain what happened
next:
Q. If you could, we've already stipulated you read the DL-26, all four paragraphs of
the chemical test warnings. Did you read those verbatim?
A. Yes.
Q. And you read them once. What happened after that?
A. She said she wanted to speak to a lawyer. I then sort of paraphrased what it said
saying you don't have a right to an attorney at this point of the process. I said,
Are you or are you not going to give blood? She basically said, I don't have a
problem doing it; but I want to talk to an attorney first. That went on about
three or four different times.
Q. When you say three or four different times, explain.
A. Just as we were sitting there, I was trying to explain to her if she didn't do it that
she would probably lose her license for a year according to these warnings. And
she said, I need to talk to a lawyer first.
Q. So you read the formal warnings. You discussed and paraphrased, as you said,
three or four times about this issue. What happened then regarding that?
A. That's when - - they're not called a nurse, whoever draws the blood. I can't think
of their medical term - - came out and took her to the back room (where) they
actually draw blood. I advised them that she keeps asking for an attorney. And
they said, well, we'll get that all on tape when they take her to the back room to
draw the blood.3
Thereafter they took her into another room to draw blood. While on videotape the
phlebotomist again went over form DL-26. After the warnings were read, petitioner was asked
if she understood. She responded "No, I don't. Not without speaking to my lawyer. n4 The
phlebotomist immediately stopped the processing and returned petitioner to the Trooper.
DISCUSSION
At the conclusion of the evidentiary hearing we were improperly focused upon
Petitioner's interaction with the phlebotomist. As we stated:
I find as a fact that her walking into that room with the phlebotomist was an
unqualified agreement to take to the test. Now, she could have vitiated once
she was in that room. But the question by the phlebotomist didn't show me any
vitiation at a11.5
We were mistaken.
The trooper read the chemical test warnings from form DL-26 verbatim. Paragraph 4
provides in relevant part as follows:
It is also my duty as a police officer to inform you that you have no right to
speak with an attorney or anyone else before deciding whether to submit to
testing and any request to speak with an attorney or anyone else after being
provided these warnings ... will constitute a refusal...
3 Transcript of Proceedings, September 14, 2010, pp. 7, 8, 10.
4 Commonwealth Exhibit 2.
5 Transcript of Proceedings, pp. 35, 36.
r
(emphasis added). 6 Petitioner's continued insistence upon conferring with counsel before
agreeing to submit to a blood test amounted to a refusal. Department of Transportation v.
O'Connell, 521 Pa. 242, 252, 555 A.2d 873, 878 (1989). Giving her the chance to submit to the
test by turning her over to the phlebotomist was merely gratuitous. Olbish v. Commonwealth
Dept. of Transportation, 619 A.2d 397 (Pa. Comwlth. 1992). It conferred no "property right to
have a test administered after the initial refusal...." Id. at 399. Absent a properly
administered test, her refusal could not be considered to have been waived. Id.
DATE Edward E. Guido, J.
P. Richard Wagner, Esquire
2233 North Front Street
Harrisburg, Pa. 17110
Philip M. Bricknell, Esquire 00P
Department of Transportation 40
`U
Riverfront Office Center Q?
1101 South Front Street
Harrisburg, Pa. 17104-2516
:sld
e Commonwealth Exhibit 1 (2).
4
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of Pennsylvania
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
Becky A. Sawyer
Vs.
Commonwealth of PA Department of Transportation
Bureau of Driver Licensing
10-4848 Civil
2753 CD 2010
The documents comprising the record have been numbered from No.1 to 81, and attached
hereto as Exhibit A is a list of the documents correspondingly numbered and identified
with reasonable definiteness, including with respect to each document, the number of
pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 03/31/2011
Regina Lebo, Deputy
An additional cony of this certificate is enclosed. Please sign and date copy, thereby
acknowledzina receipt of this record.
Date
Signature & Title
Commonwealth of Pennsvivania
County of Cumberland ss:
1, David D. Buell , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
Becky A. Sawer
Plaintiff, and Comm of PA Dept of Trans
Bureau of Driver Licensing
Defendant, as the same remains of record
before the said Court at No. 10-4848 of
Civil Term.
In TESTIMONY WHEREOF, I have hereunto set my h and affixed the seal of said Court
this 31 day of t 03 ,f A. D., 2011
Prothonotary
1, Kevin A. Hess President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
David D. Buell , by whom the annexed record, certificate and
attestation were made and given. and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania, duty commissioned and qualified to all of whose acts as such full faith
and credit. are and ought to be given as well in Courts of judicature as elsewhere, and that the said record,
certificate and attestation are in due form of law and made by proper officer
Pre,idcm .tud_e
Commonwealth of Pennsylvania
County of Cumberland ss.
I, David D. Buell , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable Kevin A. Hess
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is President.ludge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN 'TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of said Court this
No. Term 19
No 10-4848 Civil Term
Becky A Sawyer
Versus
Commonwealth of PA Department
of Transportation Bureau of Driver
Licensing
EXEMPLIFIED RECORD
From Cumberland County
Debt, S Int.
from
Costs
Entered and Filed
Prothonotary.
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
Cumberland
county ( in the Commonwealth of Pennsylvania
to No. 10-4848 Term, 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
Becky A Sawyer
vs.
Commonwealth of PA Department of Transportation Bureau of Driver Licensing
**SEE CERTIFIED COPY OF DOCKET ENTERIES**
PYS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2010-04848 DEPARTMENT OF TRANSPORTATION (vs) SAWYER BECKY A
Reference No... Filed......... 7/23/2010
Case Type.....: CIVIL APPEALS - AGENCI
d Time........ 2:36
gment......: 00
Ju Execution Date 0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 2753 CD 2010
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
PENNSYLVANIA COMMONWEALTH OF PLAINTIFF
TRANSPORATION BUREAU OF DRIVER
THIRD FLOOR
RIVERFRONT OFFICE CENTER
HARRISBURG PA 17104 2516
SAWYER BECKY A DEFENDANT WAGNER P RICHARD
990 PINE ROAD
CARLISLE PA 17015 9373
********************************************************************************
* Date Entries
********************************************************************************
FIRST ENTRY
7/23/2010 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - BY P RICHARD WAGNER
ATTY FOR APPELLANT
-------------------------------------------------------------------
7/28/2010 ORDER - DATED 07/27/2010 - IN RE LICENSE SUSPENSION APPEAL -
HEARING IS SCHEDULED FOR 09/01/2010 @ 3:30 PM IN CR # 3 - BY
EDWARD E GUIDO J - COPIES MAILED 07/28/2010
---------------------------------------------------------
10-/ 8/23/2010 MOTION-FOR CONTINUANCE - BY PHILIP M BRICKNELL ATTY FOR-DEF - - - - - - - -
-------------------------------------------------------------------
R 8/26/2010 ORDER DATED 8-25-10 IN RE MOTION TO CONTINUE IS **GRANTED** -
HEARING RESCHEDULED FOR SEPTEMBER 14 2010 AT 10 30 AM IN CR 3 - BY
THE COURT EDWARD E GUIDO J - COPIES MAILED 8-26-10
/
,/ ---------------------------------------------------
`7 9/16/2010 ORDER-OF-COURT-DATED-9-14-10-IN-RE-BRIEFS--PARTIES-HAVE-UNTIL - - - - - -
9-29-10 TO FILE BRIEFS - BY THE COURT EDWARD J GUIDO J - COPIES
MAILED 9-16-10
-------------------
---------- --------------- ------------ ------ -
15_ 12/02/2010 TRANSCRIPT OF PROCEEDINGS - BY EDWARD-E-GUIDO-J -
-------------------------------------------------------------------
53 12/02/2010 ORDER OF COURT - 12/1/10 - AFTER HEARING THE EVIDENCE AND HAVING
REVIEWED THE BRIEFS FILED BY THE PARTIES IN SUPPORT OF THEIR
RESPECITVE POSITIONS THE DEPARTMENTS SUSPENSION OF APPELLANTS
OPERATING PRIVILEGES FOR VIOLATION OF SECTION 1547 OF THE VEHICLE
CODE IS SUSTAINED AND THE APPEAL IS DISMISSED - BY EDWARD E GUIDO
J - COPIES MAILED 12/2/10
-------------------------------------------------------------------
Lf- 6 12/28/2010 ORDER -
HESSTPON-FCOPIESEPERSONALLYTGIVENP12/28/10
-------------------------------------------------------------------
;rj - 6 9 12/30/2010 NOTICE OF APPEAL TO COMMONWEALTH COURT - BY P RICHARD WAGNER ATTY
FOR PETITIONER
-------------------------------------------------------------------COURT 70 1/06/2011 ORDERDOF GU DO J 1/C/PIESNMRE: LICENSE SUSPENSION APPEAL - BY
-71-73 1/10/2011 NOTICE OF-APPEAL TO COMMONWEALTH COURT-TO 42753 CD 2010
-----
-------------------------------------------------------------------
1/19/2011 CONCISE STATEMENT OF MATTERS COMPLAINED OF - BY P RICHARD WAGNER
74 r 7 6 ATTY FOR APPELLANT
---------------------------------------------
-----------------------
7 7 " go 3/28/2011 IN RE: OEIGUIDOPURSUANTT TO PPAAIRAP 3/28/113/28/11 - BY THE COURT
--------------------------------------------------------------------
3/31/2011 NOTICE OF DOCKET ENTRIES MAILED TO P. RICHARD WAGNER ESQ PHILIP M
BRICKNELL ESQ
E?s - - - LAST ENTRY
91 r'c3?ST3K? - - - - - - - - - - - - -
?
************ ****************************************************************
PYS511 Cumberland County Prothonotary's Office Page 2
Civil Case Print
2010-04848 DEPARTMENT OF TRANSPORTATION (vs) SAWYER BECKY A
Reference No... Filed......... 7/23/2010
Case T e.....:
nt CIVIL APPEALS - AGENCI Time.........: 2:36
Judgme
......: 00 Execution Date 0/00/0000
Judge Assigned: GUIDO EDWARD E Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ----------- -- Higher Crt 1.: 2753 CD 2010
Higher Crt 2.:
* Escrow Information
* Fees & Debits Beq
Bal Pymts/Adl End Bal
******************************** ***
*
** * ****** ****
* *************** ************
COMPLAINT 55.00 55.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 8.00 8.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 23.50 23.50 .00
APPEAL HIGH CT 48.00 48.00 .00
--------------
140.00 ---------- ---
140.00 ---------
.00
********************************************************************************
* End of Case Information
********************************************************************************
TRUE COPY FROM RECORD
M Testimony whereof. t here unto set my hand
and the seal of said Court at Cw#We. Pa.
Ibis-2 day of 20 //
Prothonotary
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Commonwealth Court of Pennsylvania
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
Becky A Sawyer
Vs.
Commonwealth of PA Department of Transportation
Bureau of Driver Licensing
2010-4848 Civil
2753 CD 2010
The documents comprising the record have been numbered from No.1 to 81, and attached
hereto as Exhibit A is a list of the documents correspondingly numbered and identified
with reasonable definiteness, including with respect to each document, the number of
pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 03/31/2011
. T)?
D . Buell, Prothon tary
Regina Lebo, Deputy
An additional cony of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date
Signature & Title
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Commonwealth Court of Pennsylvania
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
Becky A Sawyer
Vs.
Commonwealth of PA Department of Transportation
Bureau of Driver Licensing
2010-4848 Civil
2753 CD 2010
The documents comprising the record have been numbered from No.1 to 81, and attached
hereto as Exhibit A is a list of the documents correspondingly numbered and identified
with reasonable definiteness, including with respect to each document, the number of
pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 03/31/2011
Da . Buell, Prothonotary
Regina Lebo, Deputy
An additional coal of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date Signature & Title
. J0