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HomeMy WebLinkAbout01-2916CHARLES M. FOGARTY : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. · NO. o~- .~o ~_Z,~"~.- COMMONWEALTH OF PENNSYLVANIA: DEPARTMENT OF TRANSPORTATION LICENSE SUSPENSION APPEAL AND NOW, comes CHARLES M. FOGARTY, by and through her attorneys, MANCKE, WAGNER, HERSHEY & TULLY, and files the following license suspension appeal: 1. Petitioner, CHARLES M. FOGARTY, is an adult individual and a licensed driver within the Commonwealth of Pennsylvania with a residence address of 617 Gutshall Road, Boiling Springs, Cumberland County, Pennsylvania. 2. Respondent, Pennsylvania Department of Transportation, Bureau of Driver Licensing, has a mailing address at P.O. Box 68693, Harrisburg, Pennsylvania. 3. On or about January 28, 2001, in the Borough of Mechmficsburg, Cumberland County, Pennsylvania, the Petitioner herein was charged with allegedly violating 75 Pa.C.S.A. §3731(a)(1). 4. Petitioner herein is alleged to have violated §1547 of the Motor Vehicle Code (75 Pa.C.S.A. §1547). 5. As a result of the alleged violation of §1547, Petitioner received a notice of license suspension dated April 1 I, 2001, a copy of which is attached hereto, incorporated herein by reference, and marked as Exhibit A, for an alleged violation of Section 1547 of the Motor Vehicle Code, refusing to take a chemical test. 4. The suspension of the Petitioner's license is invalid, improper, and illegal for the following reasons: A. Petitioner was not properly advised of the consequences of violating § 1547 of the Motor Vehicle Code; B. Petitioner supplied sufficient samples of breath in order to have activate the equipment being utilized to test his breath; C. The equipment being utilized to test his breath malfunctioned or otherwise did not fi~nction properly; D. Petitioner did not refuse, and fully cooperated with the police in providing a sample of breath; -2- E. Petitioner supplied sufficient breath that provided a read out of his breath sample for purposes of use by the Commonwealth; F. Petitioner was not properly instructed on how to provide sufficient breath; and G. The booking center officials did not properly instruct the Petitioner on how to give a sufficient breath sample. 5. As a result of the above, the Petitioner believes that he did not violate §1547 of the Motor Vehicle Code and requests this Court to grant his appeal. WHEREFORE, Petitioner prays this Court to grant his appeal from the license suspension for allegedly violating § 1547 of the Motor Vehicle Code. Respectfully submitted, Mancke Wagner, Hershey & Tully By I.D. #23103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 DATE:~../q/~i Attorney for Petitioner 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. Section 4904, relating to unsworn falsification to authorities. DATE: COHNONNEALTH OF PENNSYLVANIA DEPARTNENT OF TRANSPORTATION .... Bureau of Driver Licensing Harrisburg, PA 17125 .... APRIL 18, 2001 .... CHARLES MATTHEW FOGARTY 011016t127q557S 001 617 GUTSHALL RD 04/11/2001 19671382 BOILING SPGS PA 17007 07/05/1962 Dear Netortst: As e result of your violation of Section 1547 of the Vehicle Cede, CHENICAL TEST REFUSAL on 01/2B/2001, your driving privilege is being SUSPENDED for a period ef 1 YEAR(S). In order to comply with this sanction you are required to return enY current driveres license, learner's permit and/or temporary driver's license (camera card) in your possession no later than the effective date listed. If you cannot comply with the requirements stated above, you are required to submit a DLI&LC Form or a sworn affidavit stating that you are aware of the sanction against your driving privi- lege. Failure to comply with this notice shall result in this Bureau referring this matter to the Pennsylvania State Police for prosecution under SECTION 1571(a)(4) of the Ve- hicle Code. Although the law mandates that your driving privilege is under suspension even if you do not surrender your ~icense, Credit will not begin un~il all current driver's license product(s), the DLi&LC Form, or a letter acknowledging your sanctiort is received in th~s Bureau. WHEN THE DEPARTNENT RECEIVES YOUR LICENSE OR ACKNOWLEDGE- HENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTNENT INNEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION. The effective date of auapenalon ia 05/23/2001, 12:01 a.m. WARNINS~ If you are convicted for driving while your license is suspended, the penalties will be= a NININUN of 90 days imprisonment AND a 1,000 fine AND your I license will be suspended for I year. 01101&112745575 Please see the enclosed application for restoration fee in- formation. APPEAL You have the right to appeal this action to the Court of Common Pleas (Civil Division) with/n SO days of the ma/1 date, APRZL 16, 2001, of this letter. Z~ you ~11e an appeal tn the County Court, the Court w111 give you a time-stamped certt~ted copy o~ the BppB81. Zn order for your appeal to be valid, ynu must send this time-stamped certif/ed copy of the appeal by certified mail to: Pennsylvania Department of Transportation Off/ce of Chief Counsel Th/rd Floor, Riverfront Office Center Harr/sburg, PA 17104-251& Sincerely, Rebecca L, Bickley, D/rector Bureau of Driver Licensing SEND FEE/LZCENSE/DL-I&LC/TO= [NFORHATZON (7=00 AH TO 9~00 PN) Department of Transportation ~N STATE 1-800-932-4&00 Bureau of Dr/ver L/censing OUT-OF-STATE 717-391-6190 P.O. Box 68695 TDD IN STATE 1-800-228-0676 Harrisburg, PA 1710&-B&95' TOD OUT-OF-STATE 717-$91-&191 WE DO HEREBY CERTIFY THAT THE WITHIN I"* TRUE ANO ~iNO~L ~.~w OF~:,CES ~.~ ~E~-~j~ ~ ~ CERTIFICATE OF SERVICE I, DEBRA K. sPINNER, Secretary in the law firm of MANCKE, WAGNER, HERSHEY & TULLY do hereby certify that I am this day serving a copy of the foregoing document to the following persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of civil Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: George Kabusk, Esuqire office of chief Counsel Department of Transportation ll01 South Front Street Harrisburg, PA 17104 Debra . Spinner, Secreta Y MANCKE, WAGNER, HERSHEY & TULLY 2233 North Front Street Harrisburg, PA ~7~0 p. Richard Wagner, Esquire Attorneys for Charles M. Fogarty : IN TIIE COURT OF COMMON PLEAS CHARLES M. FOGARTY : CUMBERLAND COUNTY, PENNSYLVANIA v. · NO. ~l COMMONWEALTH OF PENNSYLVANIa: LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION ORDER AND NOW, this "~,t ~day' of~' 2001, upon Petition of CHARLES M. FOGARTY, a hearing is set on the License Suspension Appeal ,'Lq day or___ .~,,_,_~,~y 2OOl, at__ ~ ~o'clock, for the~_ - -' {} .in., iii Courtroom No.~, of the Cumberland County Courthouse, One Vourthouse Square, Carlisle, Cumberland County, pennsylvania, all proceedings to stay meanwhile. Pursuant to Section 1550(b) of the Pennsylvania Motor Vehicle Code, and Petitioner's operating petitioner appeal shall act as an automatic supersedeas, privileges shall not be suspended pending final determination in this matter. COMMON PLEAS OF · . CUMBERLAND cOUN'~', PENNSYLVANIA CHARLES M. FOGER'I'Y, : IN THE COURT OF pETITIONER V. COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, 01-2916 CIVIL TERM RESPONDENT AND NOW, this ~_~_____~ day of August, 2001, following a hearing on the merits, the within license suspension appeal, IS DISMISSED. By .the' Cou~ Edgar B. Bayley, George Kabusk, Esquire For the Department of Transportation p. Richard Wagner, Esquire For Petitioner :sea /d.N~O.') ~g:ql~d ~ ~/FJIn ,~1¥1C'~,: :,"' '-' :: . '.' ..... :] ,.'l: ',.. ' ~., - : IN THE COURT OF COMMON PLEAS CHARLES M. FOGARTY, : CUMBERLAND COUNTY, PENNSYLVANIA Petitioner, : NO: 01-2916 CIVIL TERM V. : CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPAKTMENT OF TRANSPORTATION, Respondent. ORDER AND NOW,, this._-~-~day of~' 2001, upon Petition of Charles M. Fogarty, it is hereby ORDERED that a supersedeas be issued against the Respondent, Commonwealth of pennsylvania, Depa~imant of Transportation, . f e license of the Petitioj~er hereil~_pend.in~ "~ ~t.~,,n~ the imposition of suspen~on~ tl~ ~5~l~t ':''"-h° A. 'C..,4A~ t-aanqt~V~ J~ r'~ "'~' .- - CHARLES M. FOGARTY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Petitioner, i NO: 01-2916 CIVIL TERM V. CIVIL ACTION o LAW cOMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Respondent. _PETITION FOR SUPERSEDEAS AND NOW, comes your petitioner, Charles M. Fogarty, by and through his attorneys, Maneke, Wagner, Hershey & Tully, and files the following Petition for Supersedeas: 1. Your Petitioner, Charles M. Fogarty, is an adult individual residing at 617 Gutshall Road, Boiling Springs, Cumberland County, Pennsylvania. 2. The Respondent, Department of Transportation, is a state agency having as an address, 110 i South Front Street, Harrisburg, pennsylvania, 17104. 3. On or about August 8, 2001, the Court entered an Order dismissing the appeal of the Petitioner herein and reinstating the one (1) year suspension by the Deparicnent of Transportation. 4. Petitioner herein desires to file an appeal to the Commonwealth Court of Pennsylvania and believes that his appeal has merit. 5. Petitioner filed a license suspension appeal on the 17th day of May, 2001. 6. A hearing was set for the 23~ day of July, 2001, regarding his license suspension appeal. 7. On August 8, 2001, following a hearing, the Court dismissed the license suspension appeal without opinion. 8. Petitioner desires to file an appeal to the Commonwealth Court of Pennsylvania, however, is unaware of the basis upon which the initial license suspension appeal was dismissed. 9. Petitioner has surrendered his license as a result of ARD entrance on August 10, 2001, in Cumberland County and expects not to receive a return of that license for a six (6) month period of time or February 10, 2002. 10. Upon the return of his license on February 10, 2002, it is anticipated that this appeal to the above matter will be still pending in the Commonwealth Court. 11. Petitioner desires to retain his license pending appeal to the Commonwealth Court, particularly since no opinion was provided upon which the dismissal occurred. 12. Petitioner prays this Court to grant relief in granting him a stay of the license suspension that would otherwise take effect as a result of the August 8, 2001. Order. Respectfully submitted, Harrisburg, PA 17110 (717) 234-7051 Attorneys for Petitioner Date:~ 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. unsworn fa~~ Section 4904, relating to ....... '--i" DATE:~~~/ CHARLES M. FOGARTY, : IN THE COURT OF cOMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA i NO: 01-2916 CIVIL TERM ¥. · CIVIL ACTION - LAW COMMONWEALTH OF pENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, N__OTICE OF APPEAL NOTICE IS HEREBY GIVEN that CHARLES M. FOGARTY, above-named, hereby appeals to the Commonwealth Court of Pennsylvania from Judgement of Suspension enter in this matter on the 8'~ day of August, 2001, by the Honorable Edgar B. Bayley, Judge of the Court of Common Pleas Court, Cumberland County, pennsylvania. The Order has been reduced to judgment and entered in the docket as evidenced by the attached docket entry. Respectfully submitted, Manc~ully I.D. #23103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for Defendant CHARLEs M. FOGART¥, .:/N T/-~E COURT .'NO: 01-2916 Ci~,,, ~' TR ~ x~J ~ V ~l~, DEPA - : CIVIL ACTION. LA W '~8PORTATION, ~T~NT OF : A NOTICE OF APPEAL, having been filed in reporter is hereby Order to produce, this matter, the o~cial Court certify and cOnformity with Rule file the traoscript in this matter in 1922 of the Permsy/van/a Rules °f Appellate Procedure. Respectfully submitted, Mancke, Wagner, Hershey & Tully I.D. #23103 ', Esquire 2233 North Front Street Harn'sburg, PA (717) 234-7051 17110 e'~ Attorneys for Defendant /? CHARLEs M. FOGARTy, :/N THE COURT OF COMMoN PLEAs v. ': C~ERLAND COUNTy, · PENNsyL VAHIA : NO: 01-2916 CIVIL TERM COMMONWEALTH OF : CIVIL ACTION. LAW PENHSYi.. VAHiA, DEPARTMENT OF TRANSPORTATION, : I, Debra K. SPinner. lOIlowing '~e-- ~ nlzy that I a,- .L. . ,,,m th.n oF 'aonsandi..~ '"mlSdavs=-.. '~, ~uurg, Pennsvl~..:. ~pe~late Proof,,.. ~ -w, Winch se · ~mg aocume ~'-'",., with ~rst Clas. :::~' oy depositin. +'~ce saris.es the re..~? o Fustage, nr~.~'~ o ,.~ ~me in ~ · · · -~"" vments of ~ -~mu, and ~a._ '"~ united Stm~ ~. Z "'~ss~ ~ follows: ' fCounsel D~Pa~ment of T~nspo~atJon I01 South Front Ha~isburg, PA 17104 The HOnorable Bdgar B. a Court °fCommon pl~yley CUmberland County Cou~house Carlisle, PA ~ 7013 Court Reporter CUmberland County COUnhou C~lisle, PA 17013 se ~.233 North Fr~.. ~?(, HERSHEy ~ .... /'/an-/s ,, .... ?"'. otreet '~ JULLy b.,~, rA 17110 E: ~,/ P. ~chard Wagner, Esquire At~°~s for ApPellant "Y ' ~" MANCKE. WAGNER. HERSHEY & TtJLL ~ ~'~ ~ ^ ,,~,. Re~erence Ca~e Type ..... : APPEAL - LICENSE SUSP ~,,L= .......... Execution Date 0/00/0000 Judgment ...... .00 Jury Trial .... judge Assigned: BAYLEY EDGAR B Disposed Date 0/00/0000 Disposed Desc.: Higher Crt ~.: ............ Case Comments ............. Higher Crt 2.: ******************************************************************************** General Index Attorney Info FOGARTY CHARLES M APPELLANT WAGNER P RICHARD 17 GUTSHALL ROAD BOILING SPRINGS PA 17007 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION P 0 BOX 68693 HARRISBURG PA 17123 ******************************************************************************** * Date E~tries .......... *************************** ...... FIRST ENTRY ............ 5/15/2001 APPEAL FROM ~U~P~N~I~N-O~ DRIVERS LICENSE 5/21/2001 ORDER DAT Z / THE CUMBERLAND CO Y IS SET FOR 7/23 01 AT 2:00 PM_IN CR 2 OF COPIES MAILED 5U~21/01 PA - B~ THE COURT EDGAR B BAYLEY J ........ CARLISLE ............................... 8/08/2001 ER OF COURT - DATED 8/8/01 - LISCENSE SUSPENSIQN APPEAL IS ~,~n _ my ~nGAR S BAYLEY J - COPIES MAILED 8/9/01 ........ ~" .... ~___~Z_USi ......................................... S .... ,--- ED 8 30 01 - IN RE PETITION OF CHARLES M FOGARTY IT_I 8/31/2001 ORDER -DAT - ~--~ - o,,~n~mm E ISSUED AGAINST AGAINST THE HEREBY ORDERED Ttta~ ~ o ........... B RESPONDENT COMMONWFRkLTH OF PA DEPT OF TRANSPORTATION STAYING THE IMPOSITION OF SUPENSIONS OF THE LICENSE OF THE PETITION HEREIN ~,T~y~ _-_EY ~HE COURT ~DGAR .... ~-- - _ _ _ ~ .... ~---T ....... LAST ENTRY .......... ****************************************************************************** APPEAL LIC SUSP 35.00 35.00 .00 .50 .50 .00 TAX ON APPEAL 5.00 5.00 .00 SETTLEMENT .00 JCP FEE 5.00 5.00 ~5.5o -~- .oo Information * End of Case ......... ****************************** Commonwealth Court of Pennsylvania September 10, 2001 RE: Fogarty v. DOT No.: 2071 CD 2001 Agency Docket Number: No. 01-2916 Civil Term Filed Date: September 5, 2001 Notice of Docketing Appeal A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The docket number in the Commonwealth Court is endorsed on this notice. 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 forty (40) 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 Page 2 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 preecipe to withdrew 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 Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Pazty Type Attorney Name Party Name =' C Harold Cramer, Esq. Bureau of Driver Licensing Appellee 011y George H. Kabusk, Esq. Bureau of Driver Licensing Appellee ~1 ~ Paul Richard Wagner, Esq. Charles M. Fogarty Appellant CHARLEs M. FOGAR PETITIONER 73,, : IN 'THE COURT V. TI~v.~W ~, ~=NNSyi OF ~MMON~.. _. .VANIA · IN THE COURT OF COMMON PLEAS CHARLES M. FOGAKTY, ' CUMBERLAND COUNTY, PENNSYLVANIA Petitioner, : NO: 01-2916 CIVIL V. i CIVIL ACTION - LAW COMMONWEALTH OF PA DEPARTMENT OF TRANSPORTATION : Respondent· ~R COMPLAINED OF ON APPEAL ~S OF APPELLATE PROCEDURE AND NOW, comes the Petitioner, Charles M. Fogarty, by and through his attorneys, Mancke, Wagner, Hershey & Tully, and files the following concise Statement of Matters Complained of on Appeal: I. Petitioner (licensee) contends that the officer who administered the breath test failed to adequately instruct the Petitioner on how to complete the test. 2. The officer who administered the test did not explain to the licensee that the intoxilyzer required approximately ten (10) seconds of uninterrupted breath, and further, at several points, indicated "o.k." to the licensee while he was attempting to comply with the request for a breath test. 3. The Petitioner believes he made a conscious effort to supply sufficient breath (noting that one sample in fact was sufficiently supplied), that the operator failure in instruction cannot be considered a refusal. WHEREFORE, the above serves as the statement of matters Complained of on Appeal. Respectfully submitted, Mancke, Wagner, Hershey & Tully By~ .~5~-. p.. Ri~hasd-W/igner, Esquire 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Attorneys for Petitioner Date: ~/,~'~/o ! CERTIFICATE OF SERVICE I, Debra K. Spinner, Secretary in the law firm of MANCKE, WAGNER, HERSHEY, & TULLY, do hereby certify that I am this day serving a copy of the foregoing document to the following person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Appellate Procedure, by depositing the same in the United States Mail, Harrisburg, Pennsylvania, with first class postage, prepaid, and addressed as follows: George Kabusk, Esquire office of Chief Counsel Department of Transportation 1101 South Front Street Harrisburg, PA 17104 Debra K. Spinner, Secretary MANCKE, WAGNER, HERSHEY & TULLY 2233 North Front Street Harrisburg, PA 17110 p. Richard Wagner, Esquire Attorneys for Appellant DATE: September ~ , 2001 CHARLES M. FOGARTY, : IN THE COURT OF COMMON PLEAS OF Petitioner : cUMBERLAND COUNTY, pENNSYLVANIA V. : CIVIL ACTION - LAW COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, : Respondent : 01-2916 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDGAR B. BAYLEY, J., cumberland County courthouse, Carlisle, Pennsylvania, on July 23, 2001, at 2:20 p.m. in Courtroom Number Two. APPEARANCES: GEORGE KABUSK, Esquire For the Department of Transportation p. RICHARD WAGNER, Esquire For the Petitioner INDEX TO w NESSES FOR THE DEPARTMENT ~ ~ ~ ~ 1. william R. Meneses 4 9 -- 2. Brandon D. Mitchem 12 16 19 22 ~NDEX TO EX~{IBITS FOR THE DEPARTMENT ~ ~ 21 22 1. DL-26 Form 2. Breath test ticket 21 21 14 21 3. Videotape July 23, 2001, 2:20 p.m. i Carlisle, pennsylvania 2 3 (Whereupon, the following proceedings were held:) 4 THE COURT: This one is the 2:00 one? 5 MR. KABUSK: Yes, Your Honor. 6 THE COURT: We will take it. Do you need an 7 8 order on the 1:30 one? MR. KABUSK: Yes, Your Honor. Maybe we want 9 10 to take care of that after this one. THE COURT: I will take care of it. Remind ll 12 me after we finish this one. Are we ready to go on this? MR. WAGNER: We are. 13 THE COURT: Proceed. 14 MR. KABUSK: Your Honor, this is the case of 15 16 Charles M. Fogarty versus Co~onwealth of pennsylvania, 17 Department of TransportatiOn, case number 2001-2916. This 18 is an appeal from a one year suspension as a result of the 19 motorist's failure -- or excuse me, a violation of Section 20 1547 of the vehicle code, a chemical test refusal on 1/28 21 of 2001. The Department now calls officer Meneses. Whereupon, 22 WILLIAM ROBERT MENESES, 23 24 having been duly sworn, testified as follows: MR. WAGNER: Judge, if it helps, we are 25 i prepared to stipulate to a lot of things. THE COURT: Well, whatever. 2 MR. KABUSK: Your Honor, if I may please put 3 4 on the case because it goes to certain things that I 5 believe Mr. Wagner is contesting. I will be brief. 6 THE COURT: If you wish to present your 7 case, go ahead. MR. WAGNER: That's fine. 8 9 THE COURT: Not all stipulations are 10 accepted. Okay. Proceed. 11 DIRECT EXAMINATION 12 BY MR. KABUSK: 13 Q Officer Meneses, please state your name. 14 A My name is william Robert Meneses, M-as in 15 Michael-e-n-e-s-e-s' I'm a police officer with the borough 16 of Mechanicsburg Police Department- 17 Q During the course of your official duties, 18 have you had occasion to investigate an alleged incident of 19 DUI on or about January 28th of 20017 20 A Yes. 21 Q Would you please tell the court about that 22 incident. 23 A Yes. On that date, I was assigned to a 24 uniformed patrol, and I was working from 10:00 at night 25 until 6:00 in the morning. At about 0230 or so, I was in i full uniform and patroling in a marked vehicle. I was on 2 West Main Street when I took notice that there was a parked 3 white jeep occupied bY the driver on the first block of 4 that street. Although this is con, non, it caught my 5 attention. 6 As I proceeded past the vehicle, I saw a 7 white male running from between parked -- or from between 8 buildings which occupy businesses and quickly enter the 9 passenger's side of that vehicle. That caused suspicion to 10 me, and I continued to watch this vehicle from my rear-view 11 mirror. At this time I'm driving westbound on Main Street. 12 Suddenly and without any required turn 13 signal usage, the white jeep pulled away from the curb very 14 quickly onto West Main Street heading westbound. Its 15 headlights were turned off. The vehicle then made a very 16 quick left-hand turn onto Lamont, it's Lamont Avenue. This 17 caused concern to me. 18 I viewed this activity as being extremely 19 suspicious, and my initial concern was that a burglary may 20 have occurred at one of these businesses where I saw the 21 white male coming out of. I also had two traffic 22 violations as well. 23 I circled the block, and I met the vehicle 24 at the intersection of Lamont and West Simpson Street. 25 When I saw the vehicle, the headlights were turned on, and 1 I imanediately put the emergency lighting on my police car 2 in order to stop this vehicle. It failed to stop. 3 The driver made a left-hand turn onto West 4 Simpson Street, and then made a right-hand turn onto South 5 Market Street, and another right-hand turn leading me to an 6 area behind a church in a parking lot. The total distance 7 was approximately one-tenth of a mile from when I initially 8 attempted to stop the vehicle. 9 I notified other officers of what I had and 10 awaited for their arrival before I approached the vehicle. 11 When I did approach the vehicle I spoke to the driver, whom 12 I recognized as Mr. Fogarty, sitting to the left of counsel 13 wearing a white shirt and a tie. 14 I asked the driver why he had pulled away 15 from the curb -- or, I'm sorry, I asked the driver what had 16 occurred when I saw the male entering the vehicle. He 17 denied this. 18 I could smell a very strong odor of 19 alcoholic beverage. I asked him if he had had very much to 20 drink, and he stated, no, not too much. I then asked him 21 if he was very intoxicated, and his response was, no, not 22 very. I'm sorry, it was, no, not too much, which he then 23 changed to, no, I'm not. 24 I asked him for his driver's license, 25 registration and insurance cards. Mr. Fogarty seemed very i confused in presenting the cards. In fact, he told me he 2 had presented the vehicle registration card to me, which he 3 never did. 4 The strong odor of alcoholic beverage, his 5 confusion and his -- and he admitting that he was -- he had 6 been drinking and was possibly intoxicated caused concern 7 to me that I was now investigating an active misdemeanor 8 level crime of DUI. 9 I asked Mr. Fogarty to step out of his 10 vehicle, and when he did so, I noticed his balance was very 11 poor. I asked Mr. Fogarty to submit to field sobriety 12 testing which is comprised of three tests. He completed 13 the first test, however, would not complete any other test. 14 He told me that there was no need for this, 15 that he was a businessman, that he had spent a considerable 16 amount of money that evening at a turkey dinner, that the 17 only beverage available to drink at this dinner was beer 18 and that he had consumed that, and if I felt that he was 19 intoxicated that I should then place him into custody, 20 which I did. 21 I advised Mr. Fogarty that he was under 22 arrest for suspicion of driving under the influence of 23 alcohol. When I handcuffed Mr. Fogarty as a standard 24 procedure, he protested that, again telling me that he was 25 a businessman, he shouldn't be treated as a conanon i criminal, that he knew several police officers, and that he 2 had a good attorney that would get him out of all of this. 3 I transported Mr. Fogarty to the West shore 4 Booking Center. At the booking center under video and 5 audio recording I explained to Mr. Fogarty that he had 6 rights under Pennsylvania's Implied Consent Law. I 7 explained to him that he was under arrest for the violation 8 indicated and that the waiver sheet was read to him. 9 I recall that I had to repeatedly read this 10 instructional sheet to Mr. Fogarty, specifically Section 11 4(b). Mr. Fogarty seemed confused, somewhat argumentative 12 and didn't fully understand the simple instructions and 13 rights that apply to this case. 14 Mr. Fogarty agreed to take -- or provide a 15 sample of breath for a breath test. After the first sample 16 was obtained which showed that it was above 10, Mr. Fogarty 17 then refused to take any other testing regarding his 18 arrest. 19 Q Were you there the entire time the booking 20 agent was performing the breath test? 21 A Yes, I was. 22 MR. KABUSK: That is all the questions for 23 right now, Your Honor. 24 THE COURT: Okay. Cross. 25 1 CROSS EXAMINATION 2 BY MR. WAGNER: 3 Q officer, do you have a log sheet to show 4 when you arrived at the booking center with Mr. Fogarty? 5 A I have it on my written report, if I may -- 6 MR. WAGNER: May he be permitted to do that? 7 THE COURT: Sure. 8 MR. WAGNER: Thank you. 9 THE cOURT: You may refresh your 10 recollection. You may get it. 11 THE WITNESS: Thank you. 12 THE COURT: Just take it up with you. 13 THE WITNESS: Mr. Wagner, in reference to 14 your question, this isn't a log sheet per se. However, on 15 my written report, which would be the second page, I have a 16 listing of times. These are approximate times. At 0307, 17 or about, I arrived at the booking center and Booking Agent 18 Mitchem's 20 minute observation period of Fogarty began. 19 BY MR. WAGNER: 20 Q Did you remain there with Mr. Fogarty during 21 the entire 20 minute wait period? 22 A Yes. Yes, I did. 23 Q He was in your presence? 24 A Yes. 25 Q And was the booking officer, Mr. Mitchem, i also in your presence? 2 A I can't testify to that. 3 Q Do you recall approximately what time the 4 film began running at the booking center on Mr. Fogarty? 5 A I can't state with a high degree of 6 certainty. However, I indicated that at 0349 a.m., or 7 about, I read Mr. Fogarty his implied consent which would 8 indicate to me that the recording began at that time or 9 just shortly before that. 10 Q Up until the time you read the implied 11 consent, was there ever a period of time that the booking 12 officer and Mr. Fogarty were alone and you were not there? 13 A Not that I recall. 14 Q Was whatever the booking officer said to Mr 15 Fogarty during Mr. Fogarty's time at the booking center on 16 film? 17 A That I don't know. 18 Q Did you ever hear the booking officer give 19 Mr. Fogarty instructions on how to take the test when the 20 camera was not running? 21 A I don't recall. 22 Q At any rate, if there would have been 23 instructions given by the booking officer off of the tape, 24 would you have noted that as being something important? 25 A No. i Q Were the instructions to Mr. Fogarty given 2 after you read the Implied Consent Law to him? 3 A I'm sorry, the instructions? 4 Q The instructions on how to actually take the 5 test, were they given to him after you read the Implied 6 Consent Law? 7 A They generally are, I can't -- my 8 recollection just -- 9 Q In this case, is it your recollection that 10 they followed the general practice that they usually do, 11 and that is after you read the implied consent then they 12 tell them how to take the test? 13 A Yes. I noted nothing unusual in this 14 processing that I observed. 15 Q Now, just to be clear, you've indicated you 16 got one sufficient sample, is that correct? 17 A That'S correct. 18 Q And when you used the phrase he refused to 19 do any other testing, he actually tried to give samples on 20 many occasions, did he not? 21 A Going solely by what the report says -- like 22 I said, this was January. My recollection isn't very good 23 with details. After the first breath test, my recollection 24 is that he refused any other testing. However, the 25 videotape should show. 1 Q Finally, officer, did you instruct Mr. 2 Fogarty on how to take the intoxilyzer breath test or was 3 that strictly Mr. Mitchem? 4 A Primarily it would have been Mr. Mitchem. I 5 may have assisted. However, again, I don't recall. 6 HR. WAGNER: Thank you. I have no further 7 questions. 8 MR. KABUSK: Your Honor, we do have the tape 9 here. May I reserve the right to recall Officer Meneses? 10 THE COURT: You may. You may step down. 11 MR. KABUSK: The Department calls Booking 12 Agent Brandon Mitchem. 13 Whereupon, 14 BRANDON D. MITCHEM, 15 having been duly sworn, testified as follows: 16 DIRECT EXAMINATION 17 BY MR. KABUSK: 18 Q Agent Mitchem, please state your name and 19 spell your last name for the record. 20 A Brandon D. Mitchem, M-i-t-c-h-e-m. 21 Q Where are you employed? 22 A Cumberland County District Attorney's 23 office, Central Processing Department. 24 Q And what are your duties? 25 A My primary duties are to process any i criminals that are brought in for criminal and/or DUI 2 processing. 3 Q During the course of your official duties, 4 have you had occasion to be involved in the alleged -- 5 )lved in the investigation of an alleged incident of DUI 6 on or about January 28th, 20017 7 A Yes, I had. 8 Q With Mr. Charles M. Fogarty? 9 A That's correct. 10 Q In regard to that, are you a certified 11 breath test operator? 12 A Yes, I am. 13 Q Do you have the certification with you? 14 A My actual certification -- 15 MR. WAGNER: We will stipulate that he is 16 certified. 17 TEE COURT: So stipulated. 18 BY MR. KABUSK: 19 Q What breath test instrument were you using 20 to administer the chemical test? 21 A The intoxilyzer 5000. 22 Q Do you have the breath test instrument 23 certificate of accuracy for that instrument? 24 MR. WAGNER: We'll stipulate they have a 25 certificate of accuracy as well as calibration. 1 THE COURT: So stipulated. 2 BY MR. KABUSK: 3 Q At the time of the incident was the breath 4 test instrument that was in service for use in this 5 incident functioning properly? 6 A Yes, it was. 7 Q And did you run the instrument through a 8 self check? 9 A Yes. 10 Q Did the petitioner inform you of any 11 physical or medical conditions that may have prevented him 12 from properly performing the test? 13 A Not that I recall, no. 14 Q Did the petitioner exhibit any s~,~toms 15 which would indicate the presence of a physical or medical 16 condition that would have affected his ability to perform 17 the test? 18 A No. 19 Q Was a videotape made contemporaneously with 20 the requested breath test? 21 A I'm sorry, I don't understand. 22 Q Was a videotape made of the breath test? 23 A Yes. 24 Q And did you bring a copy of that along? 25 A Yes. 1 MR. KABUSK: Your Honor, I request that you 2 view the videotape, please. 3 THE COU~T: All right. Do you want me to do 4 it now? 5 MR. KABUSK: The tape is approximately 40 6 minutes long. However, the first portion of it consists of 7 Officer Meneses reading to Mr. Fogarty the DL-26, and this 8 happens four times. Then the last approximately 15 minutes 9 is the actual breath test. So I would request that you -- 10 we could go over the very first part, fast forward over the 11 first part, and just view the breath test itself. 12 THE COURT: Are you challenging the -- I see 13 here in the petition, the petitioner was not properly 14 advised of the consequences of violating 1547. 15 MR. WAGNER: There's some -- I've had a 16 chance to see the tape. There's some confusion at some 17 point concerning what he can and cannot do if he does or 18 does not take the test. I think that's important. 19 THE COURT: Okay. Hold on a second. 20 MR. WAGNER: Can we approach? 21 THE COURT: Yes, come on up. 22 (Whereupon, a brief discussion was held 23 off the record at sidebar.) 24 MR. WAGNER: Your Honor, if it please the 25 Court, as a result of the sidebar, petitioner's prepared to I be allowed to cross-examine Mr. Mitchem, and at the 2 conclusion we have no objection to the Court, when the 3 Court deems the time available, to see the tape in the 4 court's chambers. 5 THE COURT: And you have seen it? 6 MR. WAGNER: I have seen it. 7 THE COURT: Have you seen it, counselor? 8 MR. KABUSK: Yes, Your Honor. 9 THE COURT: Fine. That is excellent, and I 10 will watch the tape in its entirety. 11 MR. WAGNER: And I would note that Mr. 12 Fogarty was present with me when we both watched the tape. 13 Correct, sir? 14 MR. FOGARTY: Yes, sir. 15 THE COURT: That is an excellent way to do 16 it. You may proceed. 17 CROSS EXAMINATION 18 BY MR. WAGNER: 19 Q Officer, when the tape first begins, did you 20 prior to the beginning of the tape have any conversation 21 with my client? 22 A Not that I recall. 23 Q To the best of your knowledge, whatever 24 instructions were given to my client in taking the test 25 would be on this tape? 1 A That's correct. 2 Q And specifically are there a set of 3 instructions that you give to a subject in order to have ~ that subject be able to take the test? 5 A There is a set of instructions that I 6 normally give with every test I do, yes. 7 Q Do you have any indication that you did it 8 in this case? 9 A No, I don't have any indication, but I do 10 the same instructions every time I process. 11 Q Those instructions include that a person is 12 supposed to give approximately ten seconds of uninterrupted 13 breath? 14 A The specific instructions I give? 15 Q Yes. 16 A No. 17 Q Tell us what they are. What are your 18 instructions? 19 A My instructions are take one good normal 20 breath, make a tight seal around the top part of the 21 mouthpiece, blow one steady, strong breath into the 22 mouthpiece until I tell you to stop blowing. 23 Q And you don't tell the person when they hear 24 the machine activate that they are supposed to sustain a 25 breath for any period of time? 1 A Yeah. Whenever I -- I will tell them 2 whenever the instrument starts to make a tone you have to 3 keep that tone going until I tell you to stop. 4 Q You tell them that as they are blowing and 5 as you hear the tone, you don't tell them ahead of time, 6 here's what I want you to do, I want you to make a tight 7 seal, I want you to blow, and I'm going to require you to 8 have that tone activated five to ten seconds? You don't 9 tell them that ahead of time, do you? 10 A No. 11 Q You tell them that as they are blowing and 12 you say things like okay, stop, no, while they are 13 attempting to blow, don't you? 14 A That's correct. 15 Q So you don't tell somebody ahead of time 16 that they should blow in the machine until you hear a beep, 17 that the machines require approximately ten seconds of 18 uninterrupted breath, and that the person should take a 19 deep breath and continue to blow for that time period, do 20 you? 21 A No. My only instructions are to blow one 22 steady breath until I tell you to stop. 23 MR. WAGNER: No further questions. Thank 24 you. 25 THE COURT: Anything else? 1 HR. KABUSK: Yes, Your Honor, if I may 2 proceed. 3 THE COURT: You may, sure. 4 REDIRECT EXAMINATION 5 BY MR. KABUSK: 6 Q Mr. Mitchem, as you understand the Judge is 7 going to view the videotape in his chambers. Did the 8 petitioner ever provide two consecutive adequate breath 9 samples without the required waiting period? 10 A No, he didn't. 11 Q Did he provide one adequate breath sample? 12 A Yes, he did. 13 Q Now, could you just very briefly 14 characterize Mr. Fogarty's breath test. Just very briefly 15 describe what happened in this matter. 16 A The first test he did provide a good sample, 17 but the second test he would not blow properly by not 18 supplying any air through the mouthpiece into the tube for 19 it to even register any kind of breath. 20 Q Now, if he was not blowing properly, what do 21 you recall telling him? 22 A I don't recall without -- it will be on the 23 tape. 24 Q What do you generally do? If someone is not 25 blowing properly, what do you generally do? 1 A I would have them take the mouthpiece out of 2 their mouth, re-explain to them what they are supposed to 3 do, tell them not to put their tongue in front of the 4 mouthpiece because a lot of people do that, that will stop 5 the air from going into the mouthpiece. I will then give 6 the tube back to them, have them try again, and give them 7 the instructions over, make a tight seal, blow one steady 8 strong breath until I tell you to stop. 9 Q If someone is not blowing, can you tell 10 that? 11 A Yes. 12 Q If you tell them you are not blowing, are 13 they not blowing? 14 A Yes. 15 Q Do they oftentimes puff their cheeks out and 16 not blow? 17 A Sometimes. 18 Q Do they oftentimes let the air out the side 19 of their mouth? 20 A Sometimes. 21 Q Do they oftentimes put their tongue over the 22 tip? 23 A Sometimes. 24 MR. KABUSK: May I approach the witness, 25 Your Honor? 1 THE COURT: Sure. 2 BY MR. KABUSK: 3 Q Does the machine print out a ticket 4 indicating the breath samples? 5 A Yes. 6 Q Would you identify what I just handed to 7 you? 8 A This is the breath test ticket from the time 9 in question. 10 Q And what does that indicate? Was there one 11 adequate breath test? 12 A Yes, the first one there at 4:01 hours. 13 Q What would that reading be? 14 A Point 181. 15 Q Was there ever a second adequate breath 16 test? 17 A No, there was not. 18 MI~. KABUSK: I move for the admission of -- 19 MR. WAGNER: No objection. 20 THE COURT: All of the exhibits are 21 admitted, including the tape. 22 MR. KABUSK: Additionally, I do have another 23 exhibit that's been marked Cor~nonwealth's Exhibit No. 1. 24 MR. WAGNER: That's the DL-26 form. We have 25 no objection to the entry of that form. I THE COURT: That is admitted too. 2 MR. KABUSK: So if I could have that Db-26 3 as number one, the breath test ticket as number two. 4 THE COURT: And the tape is? 5 MR. KABUSK: And the tape is number three. 6 THE COURT: They are all admitted. 7 MR. KABUSK: Now, oftentimes the District 8 Attorney will request that I provide the Court with a copy 9 of the tape so that they could use that original tape in 10 the criminal matter. I would just ask leave from the Court 11 that I may do so if the District Attorney requests that. 12 THE COURT: If the D.A. requests it, fine. 13 We won't lose it. 14 MR. WAGNER: There is no -- this is an ARD 15 case. 16 THE COURT: Okay. 17 MR. WAGNER: It's not going to be necessary 18 for criminal prosecution. 19 RECROSS EXAMINATION 20 BY MR. WAGNER: 21 Q One question, if I could, officer, on what 22 you just said. If a person supplied sufficient breath, the 23 machine is activated and you hear a tone, do you not? 24 A Correct. 25 Q If that tone is not sustained for a period i of seconds, the machine says deficient sample, does it not? 2 A No. 3 Q Was there a test given to Mr. Fogarty that's 4 on the tape where you hear the machine activated -- the 5 tone activated and you say, okay, stop? 6 A It would be on the tape, whatever. 7 Q And that was approximately 4:04? 8 A No, 4:04 would have been the deficient 9 sample, the second test. 10 Q Now, when we look at the tape, we're also 11 going to see the tape stops at 4:06 and picks up again at 12 4:37. Can you tell me what happened during that 31 minute 13 break that's not on the tape? 14 A Not offhand. 15 Q Nothing from your recollection material to 16 the Court's determination of this case, correct? 17 A No, nothing happened in reference to the 18 breath test, no. 19 MR. WAGNER: Thank you. No further 20 questions. 21 THE COURT: You may step down. Anything 22 further? 23 MR. KABUSK: Just I move that the documents 24 be admitted, and I understand they were. 25 THE COURT: I have. Do you wish to present any testimony? MR. WAGNER: We wish to present no 2 3 testimony. We would ask the court to respectfully in 4 considering the decision to review, if the court would, 5 please, 19(d) and (c) (4), page 523, a 1993 case, Barner 6 versus PennDOT, a decision written by president Judge 7 Kleinfelter in Dauphin County, noting that the appeal of 8 the Cor~nonwealth Court was withdrawn by pennDOT, and this 9 has to do with exactly the nature of the instructions 10 given. THE COURT: All right. I will figure it 11 12 out. I will watch the tape and have something down 13 shortly. MR. WAGNER: Thank you, Judge, very much. 14 15 (Whereupon, the hearing was concluded 16 at 2:47 p.m.) 17 18 19 20 21 22 23 24 25 2 I hereby certify that the proceedings are 3 contained fully and accurately in the notes taken by me on 4 the above cause and that this is a correct transcript of 5 same. pamela R. Sh official Court Reporter ~/~/ 8 9 10 The foregoing record of the proceedings on 11 the hearing of the within matter is hereby approved and 12 directed to be filed. . .... 15 Edgar B. Ba ~1 ,i~. Date Ninth Judicia .strict 16 % 17 18 19 20 21 22 23 24 25 CHARLES M. FOGARTY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. COMMONWEALTH OF PENNSLYVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU : OF DRIVER LICENSING : 01-2916 CIVIL TERM Bayley, J., October 3, 200t :- Petitioner, Charles Matthew Fogarty, filed this appeal from an order of Respondent, Commonwealth of Pennsylvania, Department of Transportation, suspending his operator's license for one year for failure to complete a test of his breath following his arrest for operating a motor vehicle while under the influence of alcohol. Following a hearing, an order was entered on August 8, 200t, dismissing the appeal. Petitioner filed a direct appeal from that order to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, petitioner avers: 1. Petitioner (licensee) contends that the officer who administered the breath test failed to adequately instruct the Petitioner on how to complete the test. 2. The officer who administered the test did not explain to the licensee that the intoxilyzer required approximately ten (10) seconds of uninterrupted breath, and further, at several points, indicated ~o.k." to the licensee while he was attempting to comply with the request for a breath test. 3. The Petitioner believes he made a conscious effort to supply 01-2916 CIVIL TERM sufficient breath (noting that one sample in fact was sufficiently supplied), that the operator failure in instruction cannot be considered a refusal. We find the following facts. On January 28, 2001, at approximately 2:30 a.m., Officer William Meneses of the Mechanicsburg Police stopped petitioner in the Borough of Mechanicsburg for summary violations. Following an investigation at the scene, Officer Meneses arrested petitioner for operating a motor vehicle while under the influence of alcohol. Petitioner was taken to a booking center. He was advised of his rights under the Implied Consent law. After considerable hesitation, the visibly, acutely intoxicated petitioner agreed to undertake a test of his breath on an Intoxilyzer 5000. A booking agent told petitioner to make a tight seal around the mouthpiece and blow one steady, strong breath into it until he was told to stop. Petitioner hardly put any breath into the machine. The Agent repeatedly told him to blow, blow, blow, blow, and that he is not blowing enough air into the machine. The constantly argumentative petitioner maintained that he was blowing air into the machine. It is obvious he is hardly blowing any.' The Agent told petitioner that it was a constant beep of the machine that he was looking for, and to keep blowing air into the machine until he was told to stop. Petitioner was told several times to take a deep breath and make a tight seal around the mouthpiece. As petitioner continued to blow insufficient amounts of air into the machine, the Agent took another mouthpiece and blew into it to show petitioner how to blow enough air into the machine. The Agent told petitioner to take a deep breath, "like ; All of this is memorialized on a videotape that was admitted into evidence. -2- 01-2916 CIVIL TERM you ara forcing up a balloon." On the seventh try, petitioner finally blew enough air into the machine to register a valid test. The Agent then told him to do it one mora time. He gave petitioner six separate opportunities to do what he had alraady done. Petitioner blew virtually no air into the machine on any of those occasions. The Agent then deemed that petitioner rafused to perform a valid second test. The Intoxilyzer was properly calibrated, certified as accurate, and working properly. Section 1547(b)(1) of the Vehicle Code, provides: If any person placed under arrest for a violation of section 373t (relating to driving under infiuence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the depa,:..ent shall suspend the operating privilege of the person for a period of 12 months. (Emphasis added.) The ragulations of the Department of Transportation at 67 Pa. Code § 77.24(b) include: The proceduras for alcohol braath testing shall include, at a minimum: (1) Two consecutive actual braath tests, without mquirad waiting period between the two tests. The failura to perform two tests as raquirad by this ragulation warrants the suspension of an operator's driving privilege under Section 1547(b)(1) of the Vehicle Code. Commonwealth, Department of Tranaportafion v. $chraf, 135 Pa. Commw. 246 (1990). In Pappaa v. Commonwealth Department of Tranaportation, 669 A.2d 504 (Pa. Commw. 1996), the Commonwealth Court of Pennsylvania stated: -3- 01-2916 CIVIL TERM In order to establish a prima facie case in support of a Section 1647(b) license suspension, DOT must prove inter alia, that the licensee refused to submit to chemical testing. DOT need not establish that the licensee objected to taking the test. Yi v. Department of Transportation, Bureau of Drfver Licensing, 164 Pa. Cmwlth. 275, 642 A.2d 625 (1995). 'It · ell established law that where a defendant, when taking a is w ..... _, ..... · -xert a total conscious effort, and thereby reatnalvzer TEST, o~= .~ ,~ . b. ' ..... · ~---'~- sam-la, auch la tantamount to a to eu I a eul1101.11[ u~w.-, r falls PP Y , - .... ~ o= ~'- Cmwith 314, 442 A 2d refusal to take the taat. Appeal or =uuu, ~, ,-o. · ' 404, 406 (1982). Even a licensee's good faith attempt to comply with the test constitutes a refusal where the licensee fails to supply a sufficient breath sample. ¥i. A refusal is aupportad b.y. substantial evidence where the . athal zer administrator testifies that the licensee did not prey,de bm_a Y .... ~,,, U,,ller v Department of Transportation, Bureau aumctant I~ream. ,,,, ............. of Dtfver Licensing, 657 A.2d 90 (Pa. Cmwith.), petition for allowance of appeal denied, 542 Pa. 637, 665 A.2d 471 (1995) (officer's testimony that licensee did not make a 'proper effort' was sufficient to meet DOT's burden regarding refusal); Books v. Department of Transportation, Bureau of Drfver Licensing, 109 Pa. Cmwith. 25, 530 A.2d 972 (1987) (officer's · - .... -':-' ---- -rovide sufficient breath and stopped testimony mat iloenaes gig .u~ Ia . . . Iowin as soon aa he saw the machine register was aufficlant to Budd (offico a taatimo,y tha.t. Ii.ca,aes fa,ad to '"'.'.' --..' .....~-,, ,k- ,,,,,uthnleca of the breamalyzer was R~811 Ills lipa ilr~u.u -,~ ,,.~. r . · · · gufficiant to prove refuaal). If DOT establishes refusal by utilizing the testimony of the administering officer, it need not prove that the machine was in proper working condition at the time of the test. Books; Burial. That is, once DOT establishes refusal, the operability or suitability of the breathalyzer is not at issue· Books; Budd. Alternatively, DOT may establish refusal under these circumstances by presenting a printout form from a properly calibrated breathalyzer indicating a 'deficient sample·' Department of Transportation, Bureau of D~fver Licensing v. Lohner, 155 Pa. Cmwith. 185,824 A.2d 702 (1093); Pestock. In this situation, proper calibration may be proven by either documentarY or testimonial evidence. See Lohner (calibration established by stipulation); Pestock (calibration established by testimony of administering officer); see also 87 Pa. Code§ 77.25(c) ('The certificate of accuracY shall be the presumptive evidence of accuracY referred to in 75 Pa.C.S. § 1547 (relating to chemical testing to determine amount of alcohol or controlled substance).'). Once DOT has presented evidence that the Iicenase failed to 01-2916 CIVIL TERM umcient breath eamplee, refusal is preeu .re. ed and the provide ~ . L...._ ._ ,~...,... ee to establish by competent burden of proof then $R1~1~ ~ u,-- ,,----,? ....... ~;;;~ical evidence that he or she was pnyalca,y the test. Pestock. (Emphasis added.) In a brief, petitioner cites Baroer v. Commonwealth of Pennsylvania, Department of Transportation, 19 D. & C.4~ 523 (Dauph. 1993), in support of his contention that he made a conscious effort to perform a valid second breath test, and due to operator error his license cannot be suspended. In Bamar, the Dauphin County trial court stated: In a studied review of the videotape, counsel and the court attempted to record the results of five attempted tests. The number of seconds during which the tone was activated in each test is as follows: Test 1, three seconds; test 2, nine seconds; test 3, four seconds; test 4, three seconds; test 5, six seconds. During one of these tests the machine provided a momentarY reading of .215. Banner also explained that the machine emits a beep when a sufficient sample has been received. In this case, Mr. Banner conceded that he did not instruct the defendant to blow into the machine until she heard a beep. He did not explain to her that the machine required approximately ten seconds of uninterrupted breath or that she would have to take a deep breath before beginning to blow. At one point, the defendant stopped blowing after the erator said 'okay' even before the beep had sounded. We find that .o.p . ~ - -,--:,-. :- "'- Banner's Instructions was a primary cause TJle laCK .O. 1' ~;~a,~;X ,,, ,.-,-. . . of the fa,lure to obtain a vahd test. If the I~censee makes a conscIous effort to comply but is unsuccessful because of operator failure, there can be no refusal. See e.g., PennDot v. Marion, 109 Pa. Commw. 299, 530 A.2d 1053 (1987). (Emphasis added.) The regulations of the Department of Transportation at 67 Pa. Code § 77.24(b), include: Procedures ... Alcohol and breath tests ... shall be performed in accordance with accepted etandard proce.duree for operation specified by the manufacturer of the equ,pment or comparable -5- 01-2916 CIVIL TERM procedures. (Emphasis added.) In Lackman v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licenaing, __ Cumberland L.J. (opinion filed September 27, 2001), the same claim was made that is being made in the present case. We stated: The Operator's Manual of the manufacturer of the Intoxilyzer 5000, Federal Signal Corporation of Minturn, Colorado, sets forth an operating procedure for the administration of a breath test. The manual includes the following: Request subject to blow into the mouthpiece until the tone stops; the subject has three minutes to provide an adequate breath sample. To insure a delivery of a sufficient sample, the display command requests the subject to blow into the mouthpiece until the tone stops. The tone, however, does not actually stop until the subject stops blowing .... If the subject stops blowing before providing a sufficient sample, then 'PLEASE BLOW' flashes on the display and beep sounds every five seconds. If this occurs, request the subject to blow into the mouthpiece until the tone stops. IA]gent Mitchem never told petitioner to blow into the mouthpiece until the tone on the machine stopped. However, he did tell petitioner to make a tight seal around the mouthpiece, to blow harder, and to blow in one sustained breath. He repeatedly told petitioner to make one steady, strong breath until he was told to stop. In Barnar, the Dauphin County court reversed a license suspension because, on the facts of that case, the court concluded that "the licensee did make a conscious effort to comply with the testing but was unsuccessful because of operator fa lu . Here, in contrast, we know, despite petitioner's testimony to the contrary, that he knew how to perform a valid test because he blew a valid .202% on his third try. On his next sixteen efforts, he failed to do the same thing that he had just done. When Agent Mitchem repeatedly told him to make one steady, strong breath, with a tight seal on the mouthpiece until he was told to stop, something he did -6- 01-2916 CIVIL TERM the rocedure was comparable to that set forth in the not do., ~ _P .... , The Drocedura uaed by the Agent complied operators muHu=, ..... ' 7 Pa. Code § 77.24(b). As long aa petitioner was. with 6 _ L _. ...... ---fully complete the teat, which he informeo on now ~u =-.,.,.--~_~_ ..,.__, --,,,, h imparted to him. was, there ara no magic woru- real ,,,--- _e r Our review of the videotape setisfes us that the Agent was correct in that petitioner did not exert a total conscious effort to complete a second valid breath test, which he was told how to perform, and which he knew how to perform. There was no operator error. (Emphasis added.) In the case sub judice, the booking agent told petitioner to make a tight seal around the mouthpiece of the Intoxilyzer 5000, and blow one steady, strong breath into it until he was told to stop. The Agent repeatedly told petitioner that he was not blowing enough air into the machine. The Agent blew air into another mouthpiece to show petitioner exactly how to perform the teat.2 He explained to petitioner that he should take a deep breath, "like you are forcing up a balloon." The Agent explained to petitioner that it was a constant beep of the machine that he was looking for, and to keep blowing air into the machine until he was told to stop.~ W1nen petitioner finally blew a valid test on his seventh try, the Agent told him to do it one more time. Despite six separate opportunities, petitioner blew virtually no air into the machine. Our review of the videotape setisfes us that the Agent was correct in his conclusion that petitioner did not exert a conscious effort to complete a second valid breath test, which he was factor not present in Lackman. factor not present in Lackman. 01-2916 CIVIL TERM told how to perform, and which he knew how to perform having just blown a valid test. There was no operator error. The order of August 8, 2001, dismissing petitioner's appeal from the suspension of his operator's license for one year pursuant ~.jSection 1547(b)(1) of the Vehicle Code, was properly entered. ' Edgar B. Bayley, J. (Date) George Kabusk, Esquire For the Department of Transportation p. Richard Wagner, Esquire For Petitioner :saa -8- ~a~"'* C"~C~.TEST,Ne WARN,,,oO AND nBPOnTOF ~ ..... ."._m_~?OU'U''Oa~,KA,.TEr, UmAO V" AUV~OF~GD BY ~~ ~E V~ ~ INTOXI. LYZER..- ~'L"'COHI~'ANALYZER PA MODEL 5000 SN ~-00~6~ 01/~B/00 TEST' ' ~ ~BAC TIME DIAGNosTIc OK 03:58 AIR BLANK .000 03:58 SUBJECT TEST 181 0q:01 AIR BLANK 000 0q:01 ~SUBJECT TEST 900 ~"~q:O~ I' AIR BLANK 009 CAL. CHECK 096 0q:05 AIR BLANK 909 "~:05 ~ DEFICIENT S~HPLE - VALUE PRIHTEO UAS ?IGHEST OBTAINED. .I NO RFI DETECTED CUMBERLAND COUNTY DUI DEPT. I MITTAL OF RECORDS UNDER I-~12TI~[ TE AND TRANS .... PENNSYLVA~t~ ~LE OF Art ~ To the pmthono~ of the Apollate Cou~ to which the within matter hm been ~peal~: ~ALTH coURT OF undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, The court of record, do hereby certify that annexed hereto is a true and the said court being a including an opinion of the court as required correct copy of the whole and entire record, by PA K.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: c~RI,~S ~4. FOGARTY COMMONWEALTH OF pi~NN~YLVANIA DI~PARTMfI~NT OF TRAN'~PIORTATION 01-2916 CIVIL TERM 2017 CD 2001 The do~zum~nts comprising the record have be~n numbered from No. ! to 62 , ~ atmohed hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with resp~t to e~h document, the number of pages comprising the document. The date on which the re~ord has been transmitted to the Appellate CouI'~ is 10-4-01 · Jane H. Sparling, Dpty. ~d Please ~i n~nd a__~*~ ~EY, there~by .ok__ .~inR receipt of thi~ss record. _ - S~ggn'ature & Title Date Among the Records nnd Proceedin~ enrolled in the court of Common Pleas in and for the CUMBERLAND in the Commonwealth of Pennsylvania county of 2071 CD 2001 01-2916 civil TermTcrm, 19 _ _is contained thc following: lo No. ~ DOCKET ENTRY COMPLETE COPY OF o MICHAEL M. FOGARTY v. cOMMONWEWALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SEE ATTACHED CERTIFIED DOCKET ENTRIES~ Commonwealth of Pennsylvania / ss: County of Cumberland I. Curtis R. LonCJ ..Prothonotary of the Court of Common Picas 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 Michael M. Fo art Plaintiff. and ~ Co of Pennn lvan~a · on Defendant ~, as th~ same remains of record before the said Court at No.O-]~~ of ~fvi~ . Term, A.D. 19~. In TESTIMONY WHEREOF. I have hereunto set my hand and affixed the seat of said Court this -- ~-h daynA. D.. ~: .... ~ ~/ prothonotarY Ninth George E. Hoffer _ PresidcntJudgeoftbe -- l, .~. ...... scd of thc County of Cm,berland. do certify that -- ~ertiflcate and Judicial District. comfy Loft Curtis R. g _. by whom the annexed record, attestation were made and given, and who. in his c-.n proper hsndwriting, thereuntO subscribed his urt of Common pleas of said County, waS. at the time of so doing, and now is andaffixedthesealoftbeC.o~. .... r ~ ~'~'~a-nd ' ~_..m in and for sara t. oumy ,,- ~ that the said record. Commonwealth of Pennsylvania. duly 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 judkature as&lsewhere, and certificate and attestation are in due form of law · Commonwealth of Pennsylvania ss: County of Cumberland Pleas in P.J. I. _ Curtis R. LOnq ~ Prothonotary bf the Court of Common and for the said County, do certify that the Hon6mble G,G~_~eoroe E. Holler. by whom the foregoing attestation was made, and who has thereunto subscribed his name was at the tm of making thereof, nnd still is president Judge of the Court of Common pleas. Orphan' Court and Court of Quarter Sessions of the Peace in nnd for said County. duly Commissioned and quali~ed: to all whose acts as such full faith and credit are nnd ought to be given, as well in Courts of judicature ns elSewhere. IN TESTIMONY WHEREOF, I have hereunto --- of-- -- ' ' -- Page 1 cumberland County prothonotary'S office pyS510 civil Case Inquiry 2001-02916 FOGARTY cHARLES M (vs) pENNSYLVANIA CoMMON-WEALTH OF 5/15/2001 Filed ........ : 8:06 Time ......... : 0/00/0000 fer~nC~ No..: P~A LICENSE sUSP Execution Date Re ..: AP---L - ~n Jury Trial .... Case ~IF~ .... -~ B Disposed Date. 0/00/0000 Ju~gme~'~L~i~. BAYLEY Eu~-~ Higher Crt 1.: 207~ CD 2001 Disposed DeSC.: Higher Crt 2.: Attorney InfO General Index WAGNER P RICHARD APPELLANT BOILING SPRINGS PA 17007 , IA coMMON-WEALTH OFAPPESLEE ENNSYLVAN RTATION ~=,~ENT OF TRANSPO u= .... ~-68693 P O Bg_._. uA 17123 ******************************************************************************** ORDER 0E AT 2: B ma~ ..... E ......... 1 5/2i/2001 ts sET FOR 7~!l ... coURT EDGA~_g IMPOSITIO ioN ANDAPP BAYLEY J C ............. INGS PERFECT URT EDGAR B ....... LL~ OF pEND - BY THE CO ......... JUDMENT sUBSEQUENT ........... rS-~i- ~u oIIRT .OF P~ [R.~O~ BAYLEY J - - susPENSIQ~_= .... ESQ FOR D~ BY P RICHARD WAGNER ~EALTH coURT OF PA NOTICE OF APPEAL PocKETING # 2071 CD 2001 ~-IS JI]DGE A Co~_C.~ BRIEF wITHIN 14 DA RunES~yTH AN ACCO~P.A?~%~ ~ COPIES ............. 54- 61 ~o/o3/2oo~ · ~ 03 200~ ~i~T FILED .... ~ST ENTR~ ........*****~ 29 - 53 lu/ / .... ~.,~S-~TS _~ ************************** - EscrOW Inf959~ End 99~***************** Fees ~. *********~ .... .00 35.00 .00 35.00 .50 .00 AppEAL LIC SUSP .50 5.00 .00 TAX ON APPEAL 5.00 5.00 .00 sETTLEMENT 5.00 JCP FEE 30.00 30.00 APPEAL PYS510 Cumberland County Prothonotary's Office Page 2 - Civil Case Inquiry !001-02916 FOGARTY CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF Filed .... : 5/15/2001 .... 8:06 Reference No..: Time ......... : Case Type ..... : APPEAL - LICENSE SUSP Execution Date 0/00/0000 Ju~gme~t.,...~ .00 Jury Juage Ass~gnea: BAYLEY EDGAR B DisDose~ ~a~e 0/00/0000 Disposed Desc.: Higher qrt 1.. 2071 CD 2001 ............ Case Comments ............. Higner crt 2. 75.50 75.50 .00 Information * End of Case ......... ***************************** CHARLES M. FOGARTY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO: 01-2916 CIVIL TERM COMMONWEALTH OF : CIVIL ACTION - LAW PENNSYLVANIA, DEPARTMENT OF : TRANSPORTATION NOTICE Ob' APPEAI. "' NOTICE IS HEREBY GIVEN that CHARLES M. FOGARTY, above-named, hereby appeals to the Commonwealth Court of Pennsylvania from Judgement of Suspension enter in this matter on the 8'~ day of August, 2001, by the Honorable Edgar B. Bayley, Judge of the Court of Common Pleas Court, Cumberland County, Pennsylvania. The Order has been reduced to judgment and entered in the docket as evidenced by the attached docket entry. Respectfully submitted, I.D. #23103 2233 North Front Sl~eet Harrisburg, PA 17110 (717) 234-7051 Attorneys for Defendant Date: PYS510 Cumberland County ~rot~onotary,s Office Page Civil Case ~nqu~ry 2001-02916 FOGARTY CHARLES M (vs) PENNSYLVANIA COMMONWEALTH OF Reference No..: Case TYPe ..... : APPEAL - LICENSE°SUSP. Filed ........ : 5/15/200] qu~gmeh% ...... .00 Time ..... :...~ . 8:06 ouage Assigned: BAYLEY EDGAR B Execution Date 0/00/000,], Disposed Desc.: Jury Trial .... ............ Case Comments ............. DisDosed Date. 0/00/000... ~$gber Crt 1.: nigher Crt 2.: General Index Attorney Info FOGARTY CHARLES M 17 GUTSHALL ROAD APPELLANT WAGNER p RICHARD BOILING SPRINGS PA 17007 PENNSYLVANIA COMMONWEALTH OF APPELLEE DEPARTMENT OF TRANSPORTATION P O BOX 68693 HARRISBURG PA 17123 * Date Entries ************************************* FIRST ENTRY .............. 5/15/2001 U P IGN-O D IVERS LIC SE 5/21/2OOl & IS SET FOR 7~23 01 AT 2:00 PM IN CR 2 OF THE CARLISLE PA - B CUMBERLAND CO ' ......... ~ THE COURT EDGAR B BAYLEY J COPIES MA Y .......................... ILED 1/Ol 8/08/2001 ORDER OF COURT - DATED 8 8 01 - LIS6~ .................... DISMISSED '- BY EDGAR __ SUSPENSI N.APPEAL B ~Y~EY J - COPIes MAILED 8~9/01 S EDEAS BE ISSUED AGAINST AGAINST THE RESPONDENT COMMONWEALTH OF PA DEPT OF TRANSPORTATION STAYING THE IMPOSITION OF SUPENSIONS OF THE LICENSE OF THE PETITION HEREIN .............. LAST ENTRY .............. * Fees & Debits Escrow Information *********************************_*** Pymts/Adj End B~ · APPEAL LIC SUSP 35 00 35 00 TAX ON APPF2%L ' · .00 SETTLEMENT .50 .50 .00 JCP FEE 5.00 5.00 .00 5.00 5.00 .00 45.50 45.50 .00 * End of Case Information ************************************* *************************************** , ***************************************** Commonwealth Cou~ of Pennsylvania ~.o. so, ,7~0 l-hnisbm'~. PA 17108 717-255-1650 Charles R. Hostutler D~,~.~o.o.o./O~ c~,~ November 1, 2001 Notice of Discontinuence of Action RE: Fogarty v. DOT Appeal of: Charles M. Fogarty Type of Action: Notice of Appeal No. 2071 CD 2001 Cumberland County Court of Common Pleas Agency Docket Number: No. 01-2916 Civil Term The above-captioned matter has been marked ,,Discontinued" with this court. Certification is being sent to the lower court. Party Type Party Name Attorney Name Appellee Harold Cramer, Esq. Bureau of Driver Licensing George H. Kabusk, Esq. Bureau of Driver Licensing Appellee Appellant Paul Richard Wagner, Esq. Chades M. Fogarty Oemlkd fmm~ Reoord NOV - ). ZOO1 File Cnpy Commonwealth Court of pennsylvania P.O. Bo~ 117~0 ~bu~. PA t7108 717-255-1650 Ct~rtcS R. Hostufie£ November 1, 2001 Notice of Discontinuance of Action RE: Fogarty v. DOT Appeal of: Charles M. Fogarty Type of Action: Notice of Appeal No. 2071 CD 2001 Cumberland County Court of Common Pleas No. 01-2916 Civil Term Agency Docket Number: The above-captioned matter has been marked .Discontinued" with this court. Certification is being sent to the lower court. Party Type Party Name Attorney Name Harold Cramer, Esq. Bureau of Driver Licensing Appellee Appellee George H. Kabusk, Esq. Bureau of Driver Licensing Appellant Paul Richard Wagner, Esq. Charles M. Fogarty 200! File Copy Commonwealth Court of Pennsylvania Charles R. Hestutler November 1, 2001 7~?.25s-~s~ TO: RE: Fogarty v. DOT No.2071 CD 2001 01-2916 Civil Term Trial Court/Agency Dkt. Number: . , · I~i°'C_~Z -_f C; .... D,~o~ _ Trial Court/Agency Name~ 8... ,.,,~, ,=, ,,, -, .... · Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above roarer. Contents of Original Record: Filed Date Description Original Record Item October 9, 2001 1 Trial Court Record October 9, 2001 1 Video Tape Date of Remand of Record: November 26, 2001 Enclosed is an additional coPY of the certificate. Please acknowledge receipt by signing, , Office ¢ 'the Chief Clerk's office. dating, and returning the enclosed cogliple,~ll~tho~,~,ta.?_,: ~..~. -- Commonwealth Court Filing Office  L~:~jO;teT. ~/. P~ted Name AL OF RECORDS UNDER CETIFICATE .AND TRAN~~ pENNSYLVANIA RULE OF To the prothonotary of the Apellate Court to which the within matter has been appealed: COt~lOt~l. Ttl COOg~ OF p~ono~ of ~e Co~ of Co~°n PIc~ of c~b~l~ Co--U, Thc ~d~i~, of r~, ~ h~eby ce~i~ t~t ~ex~ h~eto is a ~e ~d ~e s~d co~ being a eo~ o inion of the ~ whole ~d ~tim r~o~, including ~ P file, ~e ~fipt of the ~t cop)' of ~e _ ._:-.~ ,nne~ ~d e~ibi~, il ~Y on ~PA R.A.P. 1925, ~e on,tn-, vw following mawr: precedings, if ~Y, ~d ~e docka entri~ in the ~ ~ M CO~EAL~H OF .... :' spIORTATIO~ r'~ .~ 01-2916 CIviL TERM ~a~ 2~ CD 20~1 ~e ~ ~m~sing the ~ h~ve b~ n~b~ ~m ~. 1 a~h~ h~to ~ E~ibil A is a list of the d~~ ~es~nd~gly id~fifi~ wi~ ~ble definiteneas, inelufling with r~p~t to e~h ~= ~te on ~high ~ ~ h~ b~n ~i~ ~o ~ A99ollate Cou~ 3~e H. Spmling, Dpty. --- addit~onnl co~ of this ~ ~wle~~rd* ~& Title Date Among the Records and Proceedings enrolled in the court of Common Pleas in and for the CUMBERLAND in the Commonwealth o! pennsylvania county of-- 2071 CD 2001 01-2916 civil TermTerm. 19 _ _is contained thc following: to No. DOCKET ENTRY COMPLETE COPY OF CHARLES M. FOGARTY V. COMMONWEWALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION SEE ATTACHED CERTIFIED DOCKET ENTRIES.