HomeMy WebLinkAbout01-2951DAVID M. FRANKLIN,
Petitioner
VS.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
Respondent
1N THE COl[JRT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
RIVER S LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this/fib(day of May, 2001, upon consideration of the Petition for Review
by David M. Franklin for review of an order by the Department of Transportation suspending
Petitioner's operating privilege, a hearing de novo is granted to determine whether the action of
the Department of Transportation in suspending Petitioner's operating privilege should be set
aside and the Department's order suspending Petitioner's license is stayed pending the hearing
on this matter.
Hearing on the above-captioned case is set for ~ ol ? 2001, at /o' aT///M, in
Courtroom No. ff Cumberland County Courthouse, Carlisle, Pennsylvania.
The Petitioner is directed forthwith to serve a notice of the appeal and copies of the
Petition for Review and order for hearing on the Department of Transportation at the address
shown in the Department's notice of entry of order, by certified mail, return receipt requested.
BY THE COURT:
DAVID M. FRANKLIN,
Petitioner
VS.
COMMONWEALTH OF PENNSYLVANIA '
DEPARTMENT OF TRANSPORTATION,
Respondent
IN THE COURT OF COMMON PLEAS
CUMBERL/~dND COUNTY, PENNSYLVANIA
DRIVER'S LICENSE SUSPENSION APPEAL
PETITION FOR REVIEW OF ORI)ER OF
DEPARTMENT OF TRANSPORTATION
SUSPENDING OPERA TING PRIVILEGE
Petitioner, David M. Franklin, by his attorney, Peter B. Foster, Esquire, respectfully
petitions the Court pursuant to 75 Pa. Cons. Stat. Ann. § 1550 for review of an order of the
Department of Transportation suspending Petitioner's operating privilege, and, in support
thereof, represents as follows:
1. Petitioner David M. Franklin is an adult individual residing at 1311 North 21st
Street, Harrisburg, PA 17109.
2. Petitioner currently possesses a valid driver's license which has not heretofore
been suspended, cancelled or revoked.
3. By letter dated April 19, 2001, Petitioner was notified in writing by the
Department of Transportation of the entry of an order snspending his driver's license for mfnsal
to submit to chemical testing upon arrest for driving while under the influence of alcohol. A
copy of said letter is attached as Exhibit "A".
4. The suspension is improper and unlawful for the following reasons:
A. The Police Officers who handled the administering
of the Breathalyzer Test failed to inform Petitioner that he did not
have the right to an attorney.
B. Petitioner blew into the Breathalyzer machine
correctly, but the machine did not function properly and failed to
register Petitioner's breath samples.
C. The Police Officer administering the test did not
instruct Petitioner properly in giving the breath test and did not
operate the Breathalyzer machine properly in giving the test.
WHEREFORE, Petitioner respectfully requests that the Court stay Petitioner's driver's
license suspension by the Department of Transportation until the hearing and that the Court set
this matter down forthwith for a de novo heating pursuant to 75 Pa. Cons. Stat. Ann. § 1550.
Respectfully yours,
May 15, 2001
Peter B. Foster, Esquire
Attorney for Petitioner
P1NSKEY & FOSTER
121 South Street
Harrisburg, PA 17101
Phone: (717) 234-9321
Fax: (717) 234-7832
mR,DM : Dq'J~D M FR~N~._~ PHONE NO. : 7172130722
Ha,a. 14 2001 11:05~ ~1
APRIL 19, 2001
DAVZ~ M~CHA~L FRANKLIN
~311 N 2~ST STREET
HARRISBURG PA $7~09
CDNNONOEALTN OF PENNSYL~iNZA
DEPARTMENT OF
BUreau of DrSver Licensing
Harrisburg, PA
OltO26102D6434&
04/],2/20D~
1716606?
~6/DB/~959
~ehJcle Code~ CNEH~CAL TEST REFUSAL
d~]vtng ~r~V~ege ~s ~eing SUSPENDED
YEAR(S).
Sect/on 15~7 Of the .................
on 05/$1/2001, YOUr
for a Parsed of I
In urger to comply with thJs sanction You are required to
no later than the effectiYe ~ate l~sted. If you cannot
comply ~ith the requireaents stated above, You are required
to submit a DL[6LC Form or a sworn affidavit stating that
you are aware of the sanction against Your dr~vtng
State Pol~ce for orosecution under SECTION 1572(a)(~) of the
Vehicle Co~e,
A/though the ~aw mandates that your dr~v~ng pr~v~lege
CPedlt wtz1 not beg/n unti! ell current driver's llcense
ProductCaT, the DL~LC Form or a letter acknowledging Your
HHEN THE DEPARTMENT RECEZVES YOUR' L]CENSE OR
ACKNDNLEDGENENT, HE HILL SEND YOU A RECE[P'To [F YOU DO NOT
RECEIVE TH;S RECE[PT N[TH[N 15 DAYS CDNTACT THE DEPARTHENT
~HNED~ATEL¥. QTHERN[SE~ YOU HZLL NOT BE G~VEN CREDIT TONARD
SERVING THZ$ SANCTZON.
The ef~ectLve data of aus=anelon 18 05/24/2001; 12:01 a.m.
~ARNZNG: IF you are convicted for driving wh~e your
of 90 days imprisonment AND a t,OOO f:Lfle AND vour I
EXHIBIT "A"
PXease see the enclosed application for restoration fee
~nfurmation.
You have the right to a~PeaX this action to the Court of
Common Pleas (Civil Division) within $0 days of the
tn the County GouPt, the Court will give ~ou a
~9 aDpea~ b~ certified mail to:
Pennsylvania DePartment of TransPortation
Office of Chief Counsel
Third Floor, Riverfro~t Office Center
Harrisburg, PA 1710&-2516
SEHD FEE/L[CENSE/DL-]&LC/TO~
Deaa~tment of TransPortation
aureau of Dr~ver Licensing
P.O, Box 6869~
Sincerely,
Rebacca L. ;BiOk]ey, Director
Jureau of Driver Licensing
:NFORHAT[ON (7;00 AM TO 9:00 PM)
ZN STATE
OUT-OF-STATE 717-391-&1 gO
TOD Xi~l STATE t-800-228-0676
TDD OUT-OF-STATE 717-~9~-6191
David M. Franklin, hereby states that he is the Petitioner in this action and that the
statements of fact made in the foregoing Petition are true and correct to the best of his
knowledge, information and belief. The undersigned further understands that the statements
herein made are subject to the penalties of 18 Pa~ Cons. Stat. ,aam. § 4904 relating to unswom
falsification to authorities.
May 15, 2001
DAVID M. FR3tNKLIN,
Petitioner
V.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND ,cOUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
01-2951 CIVIL TERM
LICENSE SUSPENSION APPEAL
IN RE: TR3kNSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Thursday, August 23, 2001,
in Courtroom Number 4.
APPEARANCES:
PETER B. FOSTER, Esquire
For the Petitioner
TERRENCE M. EDWARDS, Esquire
For PennDOT
INDEX TO WITNESSES
FOR THE RESPONDENT DIRECT CROSS
Ptl. Timothy J. Hutcheson 4 10
Ralph M. Richwine 13 19
REDIRECT
25
FOR THE PETITIONER
David M. Franklin
27 30
Ex. No. 1 - chemical testing
warnings
INDEX TO EXHIBITS
FOR THE RESPONDENT MARKED
7
Ex. No. 2
calibration &
accuracy Intoxilyzer 5000
Ex. Nos. 3 & 4 - breath
test tickets
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_A]DMITTED
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MR. EDWARDS: Good morning, Your Honor.
MR. FOSTER: Good morning.
THE COURT: Good morning.
MR. EDWARDS: May it please the Court, Your
Honor, I am Terrence Edwards, Office of General Counsel,
representing the Commonwealth of Pennsylvania, the
Department of Transportation, Bureau of Driver Licensing in
this matter. To my left is Theresa Kinsinger-Horvath, who
is a certified legal intern, who is working for the
Department of Transportation, and is currently awaiting the
results of the Bar exam. We are waiting with her. We hope
she will be joining us, Your Honor.
THE COURT: Been there, done that.
MR. EDWARDS: A thrilling time.
THE COURT: Yes, indeed.
will begin our
MR. EDWARDS: And with that, Your Honor, I
case.
THE COURT: Very well.
MR. EDWARDS: Thank you, Your Honor.
refusal
Anything you want to say before
THE COURT:
we get started?
MR. FOSTER: No, Your Honor.
THE COURT: Very well.
MR. EDWARDS: Your Honor, this is a chemical
case under Section 1547(b) (1) of the Vehicle Code.
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MR.
officer Timothy J.
THE COURT:
EDWARDS: May I
Hutcheson.
Whereupon, PTL.
having been duly sworn,
BY MR.
I read the petition.
call at this point
TIMOTHY J. HUTCHESON,
testified as
EDWARDS:
Q
A
Q
follows:
DIRECT EXAJ4INATION
Good morning, Officer Hutcheson?
Good morning, sir.
Please state your full name and spell
your
last name?
A
Q
A
Q
A
Q
A
Timothy Joseph Hutcheson, H-u-t-c-h-e-s-o-n-
And by whom are you employed?
West Shore Regional Police Department.
And how long have you been employed?
with West Shore it has been two years.
And did you have any experience before that?
Yes. I was employed width Middlesex Township
Police Department for three years.
Q And you are a police officer?
A Yes, sir.
Q Officer Hutcheson, do you recognize Mr.
Franklin?
A Yes, sir, I do.
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Q Would you please point him out for the
court?
A
dark suit.
He is seated to the left of counsel in the
reflect that
BY MR. EDWARDS:
Q On March 31st,
MR. EDWARDS: Your Honor, may the record
the witness has pointed to Mr. Franklin.
2001, March 31st of this
year,
Franklin?
A
Q
Q
Mr. Franklin?
A
did you have occasion to come into contact with Mr.
Yes, I did.
Can you please describe the circumstances
under which you came into contact with him?
A Yes, sir. It was during a traffic stop
after a violation of a failure to stop for a red light in
the Borough of Wormleysburg.
About what time was this?
This was at approximately 0330 hours.
And that was on the 31st of March?
Yes, sir.
What if anything happened after you stopped
I spoke to Mr. Franklin, obtained his
Pennsylvania driver's license, detected a strong odor of an
alcoholic beverage on his breath when he spoke, saw his
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eyes were red and glassy, asked him to perform standard
field sobriety tests.
Q When you first observed the odor of alcohol
and the glassy eyes, was he still in the vehicle?
A Yes, sir, he was.
Q was he operating the vehicle?
A Yes, sir, he was.
Q Was anyone with him?
A No, sir.
Q Did you ask him to exit
perform the field sobriety test?
the vehicle then to
Q
arrest?
A
Q
He failed to perform the test. And he was
placed under arrest for driving under the influence.
Did you tell him you were placing him under
Q
A
Processing -- well,
Yes, sir, I did.
And what did you tell him you were placing
him under arrest for?
A For driving under the influence of alcohol
or a controlled substance.
What if anything happened after that?
He was taken to the Central
the West Shore Booking Center in Lower
A Yes, sir, I did.
Q What if anything happened after that?
A
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Allen Township.
Q And who took him there?
A I took him there.
Q What if anything happened after you arrived?
A I read to him the standard refusal form
supplied by PennDOT. I read that on video. And then I
released him to Agent Richwine for further breath testing.
witness?
MR. EDWARDS: Your Honor, may I approach the
THE COURT:
Certainly.
MR. EDWARDS: Your Honor,
Officer Hutcheson what's been marked as
1, and ask you just
BY MR. EDWARDS:
Q Are you familiar with that
A Yes, sir, I am.
Q And what does that
A
I am handing
State's Exhibit No.
to review that for a second.
understood it.
Q
A
it was a,
And which warnings did you read to him?
I read to him Sections 1, 2, 3, 4. Under 4
b and c.
Q And you read all of those to him?
A Yes, sir, I did.
This is the Chemical Testing Warnings that I
read to the defendant and had him sign on that date that he
appear to you to be?
document?
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Q
What was his response?
He understood, and he said he would comply.
And he did sign it then?
Yes, sir, he did.
What if anything happened after that?
Agent Richwine attempted to give him the
breath test, which he failed to give two samples --
MR. FOSTER: I am going to object unless
this officer was present during that.
THE COURT: I am assuming he was.
MR. EDWARDS: He was present, Your Honor.
THE WITNESS: Yes, sir. I was present.
MR. EDWARDS: Unless the objection is
sustained, I was going to ask what your observations were.
THE COURT: No. Go ahead.
THE WITNESS: I observed, the defendant to
give -- attemp~ to give, two breath samples. When he did
he would blow into the machine after Agent Richwine
specifically told him how to do it. I saw him blow into
the machine. And his cheeks would puff out. And he would
strain to blow. There was not a constant tone, which means
there was air going into the machine. The machine timed
out. There wasn't a significant amount of air for a
sample.
BY MR. EDWARDS:
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Q
MR. FOSTER: I am going
that that testimony be stricken unless
foundation that he is an expert in how to give this test.
Have you had occasion to observe --
to object and ask
there is a
THE COURT:
saying what he observed.
MR. EDWARDS:
BY MR. EDWARDS:
That's overruled. He is just
Overruled.
Thank you,. Your Honor.
Have you had occasion to observe the giving
iike this to other
Q
of breath tests under circumstances
people?
A Yes, sir.
Q Are you familiar with how one properly
completes one of
A
Q
have watched this?
at
these breath tests?
Yes, sir, I am.
And do you have any idea how many times you
A Oh, since the two years I have been there,
least twenty times.
Q And you had occasion then to see people
complete the test properly?
A Yes, sir.
Q Based upon your observations, did it appear
to you that Mr. Franklin was trying to complete the test
properly?
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MR. FOSTER:
THE COURT:
BY MR. EDWARDS:
I am going to object to that.
Overruled.
complete
Honor.
BY MR. FOSTER:
Q
Q Did he appear to be trying to give -- to
the test properly?
A No, sir.
MR. EDWARDS: No further questions, Your
CROSS-EXAMINATION
Officer, did Mr. Franklin cooperate in
giving the field tests?
A The standard field
Q Yes.
A Yes, sir.
Q Now, when you say that his
sobriety tests?
cheeks puffed up
a sign that he
when he blew into the machine, isn't that
was in good faith trying to blow into the machine following
the operator's instructions? In other words, when you are
for your
that has
it properly, to see the cheeks blow out like they
I have never seen that. I have seen people when
You see
blowing into the machine, wouldn't it ]De normal
cheeks to puff up?
A I have never seen anybody do that,
done
were.
they blow you don't see their checks puff out.
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them strain,
Q
puffing out that he was not in good faith blowing
machine?
A
but you don't see big cheeks puff out.
It is your testimony beeause his cheeks were
into the
Plus there was not a steady tone of air
coming through. You couldn't hear the steady tone that you
hear when people blow through the machine. It makes a
tone. It would blow just a little bit and then it would
stop. And then he would sit there with his mouth over it,
and just his cheeks were just puffed out.
Q How far away from the machine were you
located when he was blowing into it?
A I would say a desk two or length. The
machine was on a desk. And then there was a little bit of
space and then another desk, and I was behind that. So two
desks widths,
Q
A
Q
A
ten feet
What is
It is a tone.
What kind of a tone?
A beep -- a steady tone.
you blow into the machine.
Q Did you hear that
into the machine?
A
he would stop.
at the most.
the noise that this machine makes?
B-e-e-e-e-e-p when
tone when he was blowing
When he first started to blow, yes, and then
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Q Then he would stop?
A The tone would stop, yes. And you could
tell he wasn't blowing.
Q How could you tell that?
a Because there was no tone.
Q You don't know whether the machine was
defective or not, do you?
A No, sir, I don't.
Q Okay. And there was nc, verbal refusal to
blow into the machine, was there?
No, sir.
And when he was instructed by the operator
the machine, he blew into the machine, didn't
A
to blow into
he?
A
Q
operator?
A
Honor.
Yes, but not correctly.
Are you certified as a Breathalyzer
No, sir.
MR. FOSTER:
THE COURT:
MR. EDWARDS:
That's all I have.
Anything else?
No further questions,
Your
Your Honor, at this time we call booking
agent Ralph Richwine.
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Whereupon, RALPH M. RICHWINE, III, having
been duly sworn, testified as follows:
MR. EDWD~RDS: Your Honor, before I start
with Agent Richwine, I would like to offer State's Exhibit
1 into evidence. That's the chemical refusal form.
THE COURT: Unless there is objection, we
will admit it.
DIRECT EXAMINATION
BY MR. EDWARDS:
Q Good morning, Agent Richwine.
A Good morning.
Q Please state your full name and spell your
last name?
A Ralph Maurice Richwine, III. It is
R-i-c-h-w-i-n-e.
Q And by whom are you employed?
A Cumberland County District Attorney's
Office, Central Processing Department.
Q How long have you been employed in that
position?
bring
DUI's.
A
A
in off the street,
One year and two months.
What generally are your duties?
Processing criminals that police officers
the arrests they make, processing
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Q
that involve?
A
field sobriety tests, entering informa~sion
computer, photographing and fingerprinting.
Q Do you recognize Mr. Franklin?
A Yes, sir, I do.
Q Could you point him out,
A Right over there.
MR. EDWARDS: Your Honor,
reflect that Agent Richwine has pointed to Mr.
BY MR. EDWARDS:
Q On March 31st,
to come into contact with Mr.
When you say processing DUI's, what does
I give them a breath test, their standard
into the
please?
let the record
Franklin.
2001, di~ you have occasion
Franklin?
A
contact with him?
Officer Hutcheson had brought him in
Yes, I did.
Under what circumstances did you come into
for a
Have you had any training in the use of an
A
DUI arrest.
Q
Yes, sir, I have.
And what training was that?
Officer Meiss was our trainer. And that
July -- or July a year ago, July 13th.
Intoxilyzer machine?
A
Q
A
took place last
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A
5000 machine?
A
have a certificate here.
Q Have you been properly certified to operate
the Intoxilyzer machine?
Yes.
A_nd which model of Intoxilyzer machine?
Intoxilyzer 5000.
That evening were you using an Intoxilyzer
witness?
Yes, sir, I was.
MR. EDWARDS: Your Honor, may I approach the
THE COURT:
MR. EDWARDS:
that I am going to need back.
Yes.
Your Honor, I have an original
I made copies of it, but
this has been marked as State's Exhibit No.
BY MR. EDWARDS:
Q And I ask the witness
that for a second. Agent Richwine,
that document?
A
Q
A
instrument.
Q And this
using that night?
2 on the copy.
just to take a look at
are you familiar with
Yes, sir.
What does that purport to be?
This is the calibration and accuracy of the
is the same instrument you were
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A
that's on the
Q
Yes. That's what's on the serial number
tickets.
In other words, the serial number on the
Mr.
tickets coordinates to the certificate you have there?
A Yes, sir.
Q Was that machine properly calibrated?
A Yes, sir, it was.
Q Was it properly certified for its accuracy?
A Yes, sir.
Q At the time you administered the breath test
Franklin, was the machine operating properly?
A Yes, sir.
MR. EDWARDS: Your Honor, I would like to
approach again.
BY MR. EDWARDS:
Q
documents.
I am going to hand the witness two
And they are both originals again, Your Honor.
I have copies. One will be marked as State's Exhibit 3,
and one is State's Exhibit 4. I am going to give him 3 and
leave 4 right there.
Are you familiar with that document?
A Yes, sir.
Q ~-nd what does that purport to be?
A This is the ticket that [prints out of the
Intoxilyzer.
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Q And how did that ticket come into existence?
A This comes out from the first time we asked
Mr. Franklin to give us a breath test, in which he failed
to give us a proper breath test. So we ended up with an
invalid test.
Q Now, the other ticket that I have there,
which is State's Exhibit 4, can you take a moment to review
that as well? And what does that purport to be?
A We offered him to take the test the second
time, to give him a chance to re-do it. He still failed to
blow properly. And we come out with a deficient sample.
Q I see on there that there are some numbers.
Can you explain what those numbers mean?
A Okay. The first one, the subject test, was
a .144.
That
that
But if you see, it has as an asterisk beside it.
asterisk means that it was a deficient sample. What
is he didn't blow long enough. You have to keep the
tone going until a fourth digit comes ~p. And then I tell
the individual to stop blowing. Then we have the
sufficient sample. In this particular case he didn't keep
the tone going.
Q
with a sufficient
How about the number beneath that?
That's the same thing, same as the first --
Again, didn't blow long enough to come up
sample?
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A Right.
MR. EDWARDS: Your Honor, I have a
videotape. It is about twenty minutes long. And if Your
Honor would permit me, I will go ahead and play it.
THE COURT: That's fine. Though I think the
germane portion would be where he was attempting to take
the breath test, am I right?
MR. EDWARDS: And that's what most of it is.
The beginning of the tape is just the reading of the
warnings that Officer Hutcheson has testified to. And as
Agent Richwine has just testified, there were two tests,
Your Honor.
videotape.
THE COURT:
MR. EDWARDS:
Okay.
That's why it is such a long
(Whereupon, the videotape was played.)
BY MR. EDWARDS:
Q Agent Richwine,
camera who was speaking to Mr.
that was?
there was somebody off
Franklin. Do you know who
A
Q
do the test.
A
Q
Officer Hutcheson was back there.
There was someone who was telling him how to
Do you know who that was?
Oh, that was me, yes.
You videotape. Is that a fair and accurate
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representation of the testing process that you administered
that night to Mr. Franklin?
A Yes, it was.
Q Did Mr. Franklin ever properly complete a
breath test that evening?
A
Honor.
No.
MR. EDWARDS: No further questions, Your
BY MR. FOSTER:
Q
A
Q
February 16th,
A
Hutcheson --
Q Exhibit
Katherine L. Shrauder?
A
Q
February 16th,
A
Q
March 31st,
A
CROSS-EXAMINATION
Officer, may I see your certification?
These are the two for the Intoxilyzer 5000.
Officer, this calibration test was given on
is that right, of this year?
You mean for the certificate that Officer
2, which says calibration, signed by
Yeah. Whatever date is on there.
Is Exhibit 2, and it says calibration
'01 --
Right.
This testing of Mr. Franklin was given on
wasn't it?
Right.
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Q So the calibration test was not given within
thirty days of Mr. Franklin's testing?
A The calibration only needs to be done once a
year. It is the accuracy that has to be done within thirty
days. And you will see that's the one to the right.
Q Let me ask you this. Do you have a
simulator solution certificate from the manufacturer for
this machine?
A
technician.
Q
I don't. That's the responsibility of the
I am just a trained operator.
Do you know if there is a simulator solution
certificate for this machine?
Not the solution certificate. I don't know
A
of that, no.
Q Do you know if there is
certification for this machine?
an ampule
A No. I don't know. That's all taken care of
by the technician.
Q Did you test this machine within twenty-four
hours of giving Mr. Franklin his test?
A The instrument is tested everyday at the
beginning of the shift.
Q By whom?
A For that particular day I done it myself.
Q What was the result of that test within that
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twenty-four hour period that you gave, that you conducted?
A I don't recall, but that would show on the
second ticket. The calibration check was a .094, which
means it was good.
Q Was there
of Mr.
defective,
reading?
A
supposed to.
Q
any test given before the testing
Franklin within the twenty-four hour period?
A I don't recall that.
Q Isn't it possible that this machine was
and that's why it didn't give an accurate
The instrument was operating the way it was
Was there a waiting period of twenty minutes
before the test was given?
A Yes, sir, there was.
Q Now, you couldn't tell if he was giving a
good faith effort to blow into the machine or not,
you?
A I see enough of these done to know that you
don't -- it is very simple to blow into this instrument.
Q Well, let me ask you this. Apart from the
could
sounds of the machine, didn't it appear as if Mr. Franklin
was making a good faith effort to blow into the machine?
A No. It appeared to me he was keeping all
the air in his mouth. If you are blowing into the machine
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correctly,
Your
into
it is going to be like blowing up a balloon.
cheeks will come in, and the air is all concentrated
the tube. His air was concentrat,ed into his mouth.
That's why it was puffed out. And any little bit of air
that was coming out was coming around the corner. It is
very easy to blow into this instrument unless you have got
severe, severe health problems.
Q Didn't you say on the tape that he was
trying too hard to blow into the machine?
A What I meant by that was by his checks being
puffed out.
Q Has this machine ever proven to be defective
since you have been operating it?
A I couldn't say that on ~his particular
machine. We have had some that have been defective. And
what we do is put them out of service immediately and call
the technician.
Q You don't know whether or not this machine
has been defective before or after this test was given?
A No, sir. I do not. BuZz I just know at that
time it was not defective.
Q
machine?
A
Q
How long have you been operating this
I have been operating Intoxilyzers for --
This particular machine --
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of that,
work at
center.
was
A Well, I have no idea. We don't keep track
because one time I work at one center, one time I
another center. There is two Intoxilyzers at each
Q Would it be fair to say that Mr. Franklin
fully cooperative during this testing procedure?
A He was cooperative in some respects, but I
don't think he was cooperative as far as blowing into the
instrument. He did not follow the instructions.
Q And what you are saying is you travel
between various booking centers?
A Yes, sir.
And this is a machine that you use
Q
occasionally?
A
Q
I don't know, no.
Yes, sir.
And you are unable to say whether it has
been defective on other occasions or not?
A That particular instrument
But whether it was, it is serviced, it would not be -- it
would not have been in the center in service if it were
defective, because we have a technician that takes care of
that.
Q These ampule tests and simulator solution
tests, wouldn't they show whether or not it was defective?
A When we give the test at the beginning of
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the shift,
to change the
Q
if we have a low reading, that means it is time
simulator solution.
As I understand it, you didn't give a test
at the beginning of
it after the test?
A No,
shift.
Q
test?
the testing of Mr. Franklin? You gave
no. I gave one at the beginning of the
I see. And what was the results of that
A I don't know. I would have to look on
my -- we have what's called a daily activity log. That's
where I record that, but, like I said, it would be similar
to what's on the ticket here, the .094.
Q You don't have that log here with you today?
A No, sir, I don't.
Q Are you able to remember whether or not the
machine passed the test or not?
A If it would not have passed, I would have
changed the solution. That's the idea of doing the test.
So regardless, if it would have passed or not, I would have
put new solution on.
right calibration.
MR.
MR.
That would have brought it up to the
FOSTER: That's all I have.
EDWARDS: Very briefly, Your Honor.
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REDIRECT EXAMINATION
BY MR. EDWARDS:
Q On page three of what's been marked as
State's Exhibit 2, and that's the certificate of accuracy,
do you have that in front of you?
A No, I don't.
Q What is page three?
A That's the accuracy certification that our
technician does every month.
Q And does that show that this machine was
certified properly on the 12th of March, 20017
A Yes.
Q And was that within thirty days of the date
on which you administered the test to Mr. Franklin?
A Yes, sir.
Q Thank you.
MR. EDWARDS:
Honor.
BY THE COURT:
Q
MR. FOSTER:
Agent Richwine,
No further questions, Your
Nothing further, Your Honor.
I noticed in this particular
case, I have watched some of these training sessions, and I
have watched more than one of these videotapes. But I
noticed that he had virtually the entire mouth piece in his
mouth.
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A
way you get it
your mouth --
A
Q
Yes.
Is that common?
No. That's why I --
Usually the persons blows into the --
into the tube is to have the little
That's what I was tryinsl to tell him.
With the bulb outside of your mouth.
the
end in
That's
how you get the air in the machine.
A Right.
Q You didn't explain that to him?
A Yes. I did try to tell him that. It is on
the tape. I tried to tell him to pull it out further.
Q But he didn't?
A No.
Q Why didn't you pull
far it had to be out?
A I explained everything to him. It was
explained.
THE COURT: Thank you.
MR. EDWARDS: Your Honor,
would like to offer State's Exhibits 2,
evidence.
THE COURT: We will admit them.
MR. EDWARDS: And with your permission, Your
it out and show him how
You can step down.
at this time I
3 and 4 into
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Honor, I
am going to substitute copies for them.
THE COURT: Yes, of course.
MR. EDWARDS: I believe 1 is already in,
Your Honor.
Honor.
Franklin,
THE COURT: Yes.
MR. EDWARDS: The Commonwealth rests, Your
THE COURT:
MR. FOSTER:
Your Honor.
Whereupon,
duly sworn,
BY MR. FOSTER:
Q
A
Q
A
A
Q
A
Q
A
Q
Very well.
We would like to call Mr.
DAVID M. FRANKLIN, having been
testified as follows:
DIRECT EXAMINATION
State your full name for the record, please?
David Michael Franklin, F-r-a-n-k-l-i-n.
How old are you, Mr. Franklin?
Excuse me, sir?
What is your age, sir?
Forty-two.
And where do you work?
Prudential Financial.
And what do you do for them?
I am an agent.
Now, on this date, March 31st of this year,
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do you recall being stopped by Officer Hutcheson?
A Yes, sir.
Q Did you cooperate fully in giving the
tests?
field
take
Q
orders, Mr. Franklin?
A
Q
A
A Yes, sir.
Q You were then taken to the Booking Center?
A Yes, sir.
Q And at the Booking Center did you agree to
the Breathalyzer 5000 test?
A Yes, sir.
Q Did you fail to cooperate in anyway?
A No, sir.
Are you used to receiving orders and taking
Yes, sir.
Why is that?
I am retired from the Marine Corps,
where I
spent twenty years, six months.
Q Do you need your motor vehicle to perform
your job for Prudential?
A Yes, sir.
Q Why is that?
A Well, everything we do is outside of the
office basically. Whereas, I would have to go see all
clients in the normal routine of my duties.
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Q Ail right.
testimony of Mr. Richwine,
A Yes, sir.
Q Okay.
as hard as you could?
A Yes, sir.
Q
Now, you have heard the
is that correct?
Did you try to blow into the machine
Did you make any attempt to cheat the
machine or falsify the test?
A No, sir.
Q Do you recall Officer Richwine telling you
not to place the whole mouth piece in your mouth but to
just blow into the tip of it, the end of it?
Well, I was following his instructions at
A
the time --
Q
A
What were his instructions?
To place the plastic piece in my mouth and
blow through the tube.
Q The entire piece? What did he tell you
regarding that mouth piece?
Just to place it in my mouth and blow into
A
it.
Q
A
What part of it, if any?
Well, if I remember right, the plastic was
round, and it had like a straw-like cylinder sticking out
at one end. So what I did was place my' mouth down on the
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cylinder and then blew through the tube.
Q Did he ever tell you just to blow into the
straw portion of it?
He just said try to force the air through
A
that portion.
Q
Were you ever told anytime during this test,
and you had an opportunity to see it on tape, just to blow
into the tip of it, the straw portion of it, rather than
place the entire mouth piece in your mouth? Were you ever
told that?
A
Q
A
Q
could?
BY MR.
Not that I recall, sir,
Were you following his
Yes, sir.
Did you blow into the machine as hard as you
but, no.
instructions?
A
EDWARDS:
Q Mr.
Yes, sir.
MR. FOSTER:
MR.
Cross-examine.
EDWARDS: Thank you.
CROSS-EXAMINATION
Franklin, you have heard Officer
Hutcheson testify that when he stopped you for the traffic
violation and you approached your vehicle, he smelled a
strong odor of alcohol on your breath?
A Yes, sir.
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Q You were drinking that night, is that
correct?
A
questions.
Yes, sir.
MR. EDWARDS: Thank you. No further
MR. FOSTER: Does the Court have any
questions of this witness?
THE COURT:
MR. FOSTER:
THE COURT:
No. Thank you.
You may step down.
Anything further?
Your Honor.
MR. EDWARDS: Nothing from the Commonwealth,
THE COURT: Okay. Care to make any
statements? I know there are some cases that deal with the
assessment of whether or not the person has made a good
faith effort to blow into the machine and talks about I
think the necessity to prove evidence of some sort of
illness or something if you claim not to be able to produce
a sample, but I don't sense that that's what Mr. Franklin
is telling me. I think he is telling me that he tried to
blow into the machine and it didn't go in. I think I know
why. Anything else?
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advisement.
(Whereupon, Mr. Foster closed on
behalf of the Defendant.)
(Whereupon, Mr. Edwards closed on
behalf of the Commonwealth.)
THE COURT: Okay. We will take it under
Thank you.
MR. EDWARDS: Thank you, Your Honor.
(End of proceedings.)
32
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the abovecause and that this is a correct transcript of
same.
Barbara E. Graham
Official Stencgrapher
the hearing of
directed to be
The foregoing record of the proceedings on
the within matter is hereby approved and
filed.
Date
Kevin A. Hess, J.
Ninth Judicial District
33
DAVID M. FRANKLIN,
Petitioner
VS.
COM. OF PA., DEPT. OF
TRANS., BUREAU OF DRIVER
LICENSING,
Respondent
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-2951 CIVIL
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this Z > '~ day of August, 2001, after hearing, the court finding the
testimony of the petitioner to be credible and finding, further, that adequate measures were not
taken to explain to him the proper method of taking the breathalyzer test, the appeal of David M.
Franklin from the suspension of his driver's license is SUSTAINED and the suspension of his
driver's license is VACATED.
Peter B. Foster, Esquire
For the Petitioner
Terrence M. Edwards, Esquire
For PennDOT
:rim
BY THE COURT,
n/A. Hess, J.
FOrward to:
D. aparlmenl o! Transporlatlon
BUreau of Driver Licensing
P.O. Box 2253
Harrisburg, PA 17105
OH--- IOAL YE,,RTIN WAlaNfi - AND REPORT OF ....... ,
~ REFUSAL TO SUBMIT TO CHEMICAL TESTING AS --
AUTHORIZEDBY~OFTHEVEHiCLECODEo,~ ~O~ ~ ~/x~. -- '
[ w~uam~moo or urine. 0 ~r choo~e= ~e chemical te~l.) ·
3. It Il my du~; al a poll~ Miler. to IMorm you that you
~rl~ al one year.
4. ,) The ~nstilu,ona, rights you have asa c, mna dafendanL commonly known ,, the Mirand' Rights. ;;clu'ding ,he right to ,p'.k withe lawyer and
Se righl Io remain silenL apply only to ¢rimina prosecu ions and do not apply to the ¢hsmica lesling pro~dure under Pennsylv~ia's Implied
Consent Law, which is a civil, not a criminal proceeding.
b) You have no rlghl to speak o a awyer, or anyone else, ~fore taking Ihe chemical test requeslod by tho police ollloer nordo you have ~ H ht to
remain silent when asked by the poli~e oilicer Io submil lo the chore ~1 le~/ Unless au ac rea to u g
eml~ res ina under the implied Consent Law ma b .
I. The a~ve malarial wa~ plaid under ,lresl for driving ~nder
Vehicle Co~. and lhero wore roasona~e.grounds to betieve Ihal Ihe above molorlsl had been dr v rig.
· e m~ement al a molar vehicle whilo under tho inll,en~ al al~hol or a ~n ro ed subslanca or bolh. In actual physl~l ~ntrol of
Thal Ihe ,~ve named molonsl was involved in an a~ident In which th~ro-er
tree,ertl al a medial lacili~ or was
~. ~e above moloriil was ~quetled Io s,bmtl Io chenlal le~lin~ al aulhotlzed bI Seclion lS47 al Ih. Vehicle Code.
3. The above molofl=l wal Inlotmed by a police olllcer al ~e &em al losl warnings conlalned In parag~ph ~ and 4 above.
4. The above named malarial relised o subm I Io chemical lasting. '
n/ly lo take the chem ~1 leal .flor reviewing this 1cfm If ihs Individual WIIo eralln i pportu-
Ilcohol or I ~nlrolled ~u ' P g commercial motor vehicle wh · having any
r' . balance In Ihelr ly*lom, you must
THI~i FORM MAY BE D
Nolo: Any pertinent facts riel covered by the affidavit should be ,ubmilled on a
soperale Iheel and altec, hod hereto. That shoal ~hould Include the nlmal of
additional witnesses nscessary lo prove tho elements to which you have attested.
ADDITIONAL SUPPLIES OF Tills FORM MAY BE SECURED BY COMPLETINO FORM O$-$11A
coMMONWEALTH OF pENNsYLVANIA )
) SS:
coUNTY OF cUMBERLAND
I certify that the attached copies of the Calibration & Accuracy Certificates
AcCuRACY and complete
CALIBP-,-ATIOlq 3/12/03- ~_.areatrue, correct,
2/3-6/03- /
dated.
copy of the original Calibration & Accuracy Certificates.
In witness whereof, I hereunto set my hand and official seal.
~t Kath~yn L. Shrauder
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF HEALTH
AND
DEPARTMENT OF TRANSPORTATION
OF
Breathtesting Device Calibration
This is to certify that on February 16, 2001
Date
an INTOXILYZER 5000, serial number 64-001274
was calibration tested, and the degree of accuracy is within the range specifi.ed in thc
Department of Health and DePartment of Transportation Regulations promulgated
under Section 1547 (c) of the "Vehicle Code", the Act of June, 17, 1976 (P.L~ 162,
No. 81)(75 Pa. C.S. 1547(c), as amended.
CUMBERLAND COUNTY DUI DEPARTMENT
CO.URTHOUSE
CARLISLE, PA 17013
Daniel A. Lutz
February 16, 2001
Type Name Here
Date
LOT //,
00160
Certified Date:
Certified By:
Type Name Here
CALIBRATION TEST
Absolute
Test Results Const,~nt Difference
A. , 051 % .05% 001 %
B. . DS1 % .05% 001 %
C, . 050 % .05% ~:000
D.. 050 % .05% 000
m. 048 ~o .o5% 6~2 %
TOTAL .004
AVERAGE DEVIATION - Tolat
.004 '000
5,0
.%
LOT #
LOT #.
Absolute
Test Resulls Constant Difference
't' A. . Q97. % .10% . . 003
B, . 099 % .10% 001
C. · Oq8 % .10% 002
D. 099 % .10% 001
E. . 098 % .10% 002 %
TOTAL ;009
00190
AVERAGE I)EYIATION = 'Fetal .009 % *= 001
Absolute
Test Results Constant* Difference
A. ,151 % .15% 001
B. 151 % .15% 001
C. 150 % .15% 000
D.. ~S~ % .15% 001
TOTAL .003
00060
AVERAGE DEVIATION =, Tolal .003 %
$.0
NOTE: ALL ENTRIES IVlUST BE TYPED.
COMMONWEALTII OF PENNSYLVANIA
DEPARTMENT OF 1 IEALTH
AND
DEPARTMENT OF TRANSPORTATION
.OF
Breathtesting Device Accurac'Y
This is to certify t~at on March 12,2001
-". Date ~
al, INTOXILYZER 5000, serial number ~64=05L[2_7_4_~
was tested for accuracy, and the degree of accuracy is within the range specified Ju
the Department of Health and Department or Transportation Regulations
promulgated under Seclion 1547 (e) of the "Vehicle Code", the Act of June 17, 1976
(P.L. 162, No. 81)(75 Pa. C.S. 1547(c), as amended.
CUMBERLAND COUNTY DUI DEPARTMENT
COURTHOUSE
CARLISLE, PA 17013
(717) 240-6222
Type Name Hele
__~_~rch 12,2001
Certified Date:
Certified By:
Mar~ch 12,2001
Sisnamr¢
Geor e Cha oak
ACCURACY INSPECTION TEST
LOT #_00 ~50
Tcst Rcsulta
100 . %
102 , %
C. . 100
099 _ %.
D.
E. _101 - %
Constant
,10%
.10%
.10%
.10%
.10%
TOTAL
AbsoJttte
Difference
· 000
· .002
000
001
001
004
AVERAGE DEVIATION = Total,004
5.0
= . ann %
NOTE: ALL ENTRIES MUST BE TYPED.
SUBJECT'S NAME
ADDITIONAL INFORMATION AND/OR REMARKS
[f;.I"i'Ci::.::ZL."~'ZE~ '- ¢ILC ~-,3L ANAL" ZEF::
PA F~ODEL 50C~i S?..i 6~i--DS].27k~
T'EST ;': F3A C
r~17 BLANK
~SUELJECT TEST ,
PlIR ~LRN~ .08D 0~;25
..... ~E;UD.JE CJT 'TE :~ T
AiR DLRNP ,C~OD ~H.~BB
CAL, CHECK .09¢.4 0q,:29 ......
ADDITIONAL INFORMATION AND/OR REMARKS
CUMBERLAND COUNTY DUI DEPT. -- CUMBERLAND COUNTY DUI DEPT.
DAVID M. FRANKLIN,
PETITIONER
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
: NO. 01-2951
LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this 9~ day of ~ ,2001, the
Department having requested that the above-mentioned matter be continued because Agent
Ralph Richwine, a necessary witness for the Department, is unavailable to testify on July 27,
2001, and without objection of the continuance by the petitioner, the hearing in the above
referenced matter is CONTINUED and RESCHEDULED for the ~ day of
~i/t4~~ ,200~1, at 62 J f/O Ox.m, in Courtroom Number 4 in the Cumberland
County Courthouse, Carlisle, PA.
BY THECOURT
DISTRIBUTION:
George Kabusk, Esquire, Commw. of Penna., Dept. of Trans., Office of Chief Counsel,
Riverfi'ont Office Center-3ra Floor, 1101 South Front Street, Harrisburg, PA 17104-2516
Peter B. Foster., Esquire, 121 South Street, Harrisburg, PA 17101
IN THE COMMONWEAl_TH COURT OF PENNSYLVANIA
DAVID M. FRANKLIN,
Appellant
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING
No. 2242 C.D. 2001
ORDER
NOW, October 3, 2001, it appearincl that the trial court's decision
was entered August 24, 2001, the last day to appeal therefrom was
September 24, 2001, and that the notice of appeal in this matter was filed
September 26, 2001, the above appeal is hereby dismissed as untimely filed.
See Pa. R.A.P. 903(a).
BY THE COURT:
Oe~t~ied trom the ReCO~
OCT 0
PYS510
2001-02951
Reference No..:
Case Tv]De ..... : APPEAL - LICENSE SUSP
Ju~gmeh% ....... 00
Judge Assigned:
Disposed Desc.:
............ Case Comments .............
Cumberland County Prothonotary's Office
Civil Case Inquiry
FR3~NKLIN DAVID M (rs) PENNSYLVANIA COMMONWEALTH OF
Filed ........ :
Time ......... :
Execution Date
Jury Trial ....
DisDosed Date.
Higher Crt 1.:
Higher Crt 2.:
Page 1
s/15/2ooi
2:39
o/oo/oooo
o/oo/oooo
General Index Attorney Info
APPELLANT FOSTER PETER B
APPELLEE
FR3uNKLIN DAVID M
1311 NORTH 21ST STREET
HARRISBURG PA 17109
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
P 0 BOX 68693
HARRISBURG PA 17106 8693
* Date Entries ,
............. FIRST ENTRY ..............
5/15/2001 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - PETITION FOR REVIEW OF
ORDER OF DEPARTMENT OF TP3~NSPORTATION SUSPENDING OPERATING
PRIVILEGE
5/18/2001 g~DER DATED 5/18/01 - IN RE PETITION ]FOR REVIEW OF SUSPENSION OF
ERATING PRIVILEGES - HEAING DE NOVO IS GRANTED AND SET FOR 7/17/0
!L~7/01 AT 10 A~, IN COURTROOM 4 - BY THE COURT
KEVIN
A
HESS
J
COP
IES MAILED 5/18/01 RKS
7/09/2001
ORDER - DATED 7/9/01 - THE DEPT HAVING REQUEST THAT THE ABOVE
MENTIONED MATTER BE CONTINUED BECAUSE AGENT RALPH RICHAWINE A
NECESSARY WITNESS FOR THE DEPT IS UNAVAILABLE TO TESTIFY ON 7/27/01
AND WITHOUT OBJECTION OF THE CONTINUANCE BY THE PETITIONER THE
~R~_~_THE ABOVE REFERENCE MATTER IS CONTINUED AND RESCHEDULED
~{~/~ AT 9:00 AM IN CR 4 IN THE,CUMBERLAND COUNTY COURTHOUSE
?~_~_:_~_~_~?~_~y~_~_~![~_~_~?~IES MAILED 7/10/01
8/24/2001 ~_2.~ATED 8Z23/01 - AFTER HEARING ~THE COU~-~-~ ........
Y~T±MON~ OF THE PETITIONER BE CEDIBLE AND FINDING FURHTER THAT
AEQUATE MEASURES WERE NOT TAKEN TO EXPLAIN TO HIM THE PROPER
METHOD OF TAKING THE BREATHALYZER TEST THE APPEAL OF DAVID M
FRANKLIN IN THE SUSPENSION OF THE DRIVERS LICENSE IS SUSTAINED
AND THE SUSPENSION OF THIS DRIVERS LICENSE IS VACATED - BYTHE COURT
KEVIN A HESS J COPIES MAILED 8/24/01
OF COURT THAT WAS FILED ON 8/23/01 - BY TIMOTHY P WILE ESQ
.............. I~tST ENTRY - .............
Escrow Information .
* Fees & Debits Beg Bal Pymts/Adj End Bal *
APPEAL LIC SUSP 35.00 35.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEMENT 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
APPEAL 30.00 30.00 .00
75.50 75.50 .00
* End of Case Information ,
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY P. WILE
ASSISTANT COUNSEL 1N-CHARGE
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 30397
R1VERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
DAVID M. FRANKLIN,
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 0][-2951 Civil
Notice of Appeal
Notice is hereby given that the Commonwealth of Pem~sylvania, Department of Transportation,
Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that
was filed in this matter on August 23, 2001. This order is from a statutory appeal and cannot be reduced to
judgment. The order has been entered in the docket and notice of ils entry has been given under Pa. R.C.P.
236. A copy of the docket entries are attached hereto.
TIMOTHY F. W1LE
Assistant Counsel In-Charge
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
PYS510 Cumberland County Pr0thonota~/,s Office Page 1
Civil Case Inquiry
2001-02951 FRANKLIN DAVID M (rs) PENNSYLVANIA CO~4ONWEALTH OF
Reference No..: Filed ........ : 5/15/2001
Case T~De ..... : APPEAL ~ LICENSE SUSP Time ......... : 2:39
Ju~gme5% ....... 00 Execution Date 0/00/0000
Juage Assigned: Jury Trial ....
Disposed Desc.: DisDosed Date. 0/00/000%
............ Case Comments ............. Higher Crt 1.:
Higher Crt 2.:
General Index Attorney Info
FRANKLIN DAVID M APPELLANT FOSTER PETER B
1311 NORTH 21ST STREET
HARRISBURG PA 17109
PENNSYLVANIA COMMONWEALTH OF APPELLEE
DEPARTMENT OF TRANSPORTATION
P O BOX 68693
HARRISBURG PA 17106 8693
* Date Entries ,
********************************************************************************
............. FIRST ENTRY ..............
5/15/2001 APPEAL FROM SUSPENSION OF DRIVERS LICENSE - PETITION FOR REVIEW OF
ORDER OF DEPARTMENT OF TRANSPORTATION SUSPENDING OPERATING
PRIVILEGE
5/18/2001 ORDER DATED 5/18/01 - I~ RE PETITION FOR REVIEW OF SUSPENSION OF
OPER3~TING PRIVILEGES - HEAING DE NOVO IS GR3LNTED D-ND SET FOR 7/17/0
7/17/Ol AT 10 ~ I~ COURTROOM 4 - BY TEE COURT KEVIN A HESS J
cOPIES MAILED 5/18/Ol RKs
7/o9/2OOl $~5~-:-~5~5-52~-:-5~-~-:~5~&-~fi¢~5-~-5~-.~$~ ......
MENTIONED MATTER BE CONTII~JED BECAUSE hGENT R~LPH RICHAWINE A
NECESSARY ~ITNESS FOR THE DEPT IS IJNAVAII.u~BLE TO TESTIFY ON 7/27/01
~ ~ITHOI. JT OBJECTION OF THE CONTINUANCE BY THE PETITIONER THE
HEARING ~N THE ABOVE REFERENCE MATTER IS CONTINUED AND RESCHEDULED
~_~g2~/01 AT 9:O0 ~ IN CR 4 IN THE COMBER~m CO~TY COURTHOUSE
~SLE PA - BY THE COURT ~VIN A HESS J COPIES MAInED ?/10~01
TESTIMONY OF THE PETITIONER BE CEDIBLE AND FINDING FURHTER THAT
AEQUATE MEASURES WERE NOT TAKEN TO EXPlaIN TO HIM THE PROPER
METHOD OF TAKING THE BR~ATHALYgER TEST THE APPEg~ OF DAVID M
FRANKLIN IN THE SUSPENSION OF THE DRIVERS ~ICENSE IS SUSTAINED
J~XlD THE SUSPENSION OF THIS DRIVERS LICENSE IS VACATED - BYTHE COURT
KEVIN A HESS J COPIES MAILED 8/24/01
.............. LAST ENTRY ..............
* Escrow Information *
Fees & Debits Be Bal P ts/Ad' End Bal *
APPEAL LIC SUSP 35.00 35.00 .00
TAX ON APPEAL .50 .50 .00
SETTLEMENT 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
.....................................
45.50 45.50 .00
* End of Case Information ,
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHiEF COUNSEL
VEHICLE & TRAFFIC LAW DiVISION
BY: TIMOTHY p. WILE
ASSISTANT COUNSEL 1N-CHARGE
APPELLATE SECTION
ATTORNEY 1DENTiEICATION NO. 30397
RiVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
DAVID M. FRANKLIN,
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRiVER LICENSING,
Appellant
1N THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 01-2951 Civil
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.
Prepare only the original for inclusion in the record as thc Appellant, Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the
transcript.
Assistant Counsel In-Charge
Appellate Section
Riverside Office Center - Third Floor
1101 South Front Street
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT O F TRANSPORTATION
OFFICE OF CHIEF COUNSEL
VEHICLE & TRAFFIC LAW DIVISION
BY: TIMOTHY p. WILE
ASSISTANT COUNSEL 1N-CHARGE
APPELLATE SECTION
ATTORNEY IDENTIFICATION NO. 30397
RIVERFRONT OFFICE CENTER - THIRD FLOOR
1101 SOUTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17104-2516
(717) 787-2830
DAVID M. FRANKLIN,
Appellee
VS.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Appellant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 01-2951 Civil
Proof of Service
I hereby certify that I have on this day and date duly served a true and correct copy of the
foregoing documents upon the persons and in the manner indicated below, which service satisfies the
requirements of Pa. R.A.P. 121:
First Class Mail; Postage Pre-Paid;
Addressed as Follows:
Judge Kevin A. Hess
Cumberland County Comthouse
1 Courthouse Square
Carlisle, PA 17013
Court Reporter
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Attorney for Department of Transportation
Date: September 10, 2001
Peter B. Foster, Esquire
Att. for Appellee Franklin
121 South Street
Harrisburg, PA 17101
DAVID M. FRANKLIN,
Petitioner
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION,
BUREAU OF DRIVER
LICENSING,
Respondent
IN THE COURT OF COMMON PLEAS OF
:
CUMBERLAND COUNTY, PENNSYLVANIA
:
CIVIL ACTION - L~W
:
: 01-2951 CIVIL TERM
:
: LICENSE SUSPENSION APPEAL
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONOR3tBLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Thursday, August 23, 2001,
in Courtroom Nurmber 4.
APPEA_P3kNCES:
PETER B. FOSTER, Esquire
For the Petitioner
TERRENCE M. EDWARDS, Esquire
For PennDOT
INDEX TO WITNESSES
FOR THE RESPONDENT DIRECT
Ptl. Timothy J. Hutcheson 4
Ralph Mo Richwine 13
CROSS
10
19
REDIRECT
25
FOR THE PETITIONER
David M. Franklin
27 30
INDEX TO EXHIBITS
FOR THE RESPONDENT
MARKED
Ex. No. 1
warnings
chemical testing
7
15
Ex. No. 2 calibration &
accuracy Intoxilyzer 5000
Ex. Nos. 3 & 4 breath
test tickets
16
ADMITTED
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MR. EDWARDS:
MR. FOSTER:
THE COURT:
Good morning,
Good morning.
Good morning.
Your Honor.
MR. EDWARDS: May it please the Court, Your
Honor, I am Terrence Edwards, Office of General Counsel,
representing the Commonwealth of Pennsylvania, the
Department of Transportation, Bureau of Driver Licensing in
this matter. To my left is Theresa Kinsinger-Horvath, who
is a certified legal intern, who is working for the
Department of Transportation, and is currently awaiting the
results of the Bar exam. We are waiting with her. We hope
she will be
joining us, Your Honor.
THE COURT: Been there,
MR. EDWARDS: A thrilling
THE COURT: Yes, indeed..
done that.
time.
MR.
will begin our case.
THE COURT:
MR. EDWARDS:
EDWARDS: And with that, Your Honor, I
Very well.
Thank you,
Your Honor.
we get
refusal
Anything yo'~ want to say before
THE COURT:
started?
MR. FOSTER: No, Your Honor.
THE COURT: Very well.
MR. EDWARDS: Your Honor,
case under Section 1547(b) (1)
this is a chemical
of the Vehicle Code.
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THE COURT: I read the petition.
MR. EDWARDS: May I call at this point
Officer Timothy J. Hutcheson.
Whereupon, PTL. TIMOTHY ,3. HUTCHESON,
having been duly sworn, testified as
follows:
DIRECT EXAMINATION
BY MR. EDWARDS:
Q
A
last name?
A
Q
A
Q
A
Q
A
Good morning, officer Hutcheson?
Good morning, sir.
Please state your full name and spell your
Timothy Joseph Hutcheson, H-u-t-c-h-e-s-o-n-
And by whom are you employed?
West Shore Regional Police Department.
And how long have you been employed?
with West Shore it has ibeen two years.
And did you have any experience before that?
Yes. I was employed with Middlesex Township
Police Department for three years.
Q
And you are a police officer?
Yes, sir.
Officer Hutcheson, do you recognize Mr.
Franklin?
A Yes, sir, I do.
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Q Would you please point him out for the
court?
A
dark suit.
He is seated to the left of counsel in the
reflect that
BY MR. EDWARDS:
Q On March 31st, 2001, March 31st of
MR. EDWARDS: Your Honor, may the record
the witness has pointed to Mr. Franklin.
this
year, did you have occasion to come into contact with Mr.
Franklin?
A Yes, I did.
Q Can you please describe the circumstances
under which you came into contact with him?
A Yes, sir. It was during[ a traffic stop
after a violation of a failure to stop for a red light in
the Borough of Wormleysburg.
Q About what time was this?
This was at approximately 0330 hours.
And that was on the 31st of March?
A
Mr. Franklin?
A
Yes, sir.
What if anything happened after you stopped
I spoke to Mr. Franklin., obtained his
Pennsylvania driver's license, detected a strong odor of an
alcoholic beverage on his breath when he spoke, saw his
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eyes were red and glassy, asked him to perform standard
field sobriety tests.
Q When you first observed 'the odor of alcohol
and the glassy eyes, was he still in the vehicle?
A Yes, sir, he was.
Q Was he operating the vehicle?
A Yes, sir, he was.
Q Was anyone with him?
A No, sir.
Q Did you ask him to exit the vehicle then to
perform the field sobriety test?
A Yes, sir, I did.
Q What if anything happened after that?
A He failed to perform the test. And he was
placed under arrest for driving under the influence.
Did you tell him you were placing him under
Q
arrest?
A
Q
Q
A
Processing -- well,
Yes, sir, I did.
And what did you tell him you were placing
him under arrest for?
A For driving under the influence of alcohol
or a controlled substance.
What if anything happened after that?
He was taken to the Central
the West Shore Booking Center in Lower
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Allen Township.
Q
A
Q
A
And who took him there?
I took him there.
What if anything happened after you arrived?
I read to him the standard refusal form
supplied by PennDOT. I read that on video. And then I
released him to Agent Richwine for further breath testing.
MR. EDWARDS: Your Honor, may I approach the
witness?
THE COURT: Certainly.
MR. EDWARDS: Your Honor, I am handing
Officer Hutcheson what's been marked as State's Exhibit No.
1, and ask you just to review that for a second.
BY MR. EDWARDS:
Q Are you familiar with that document?
A Yes, sir, I am.
Q And what does that appear to you to be?
A This is the Chemical Testing Warnings that I
read to the defendant and had him sign on that date that he
understood it.
it was a,
Q And which warnings did you read to him?
A I read to him Sections 1, 2, 3, 4. Under 4
b and c.
Q And you read all of thc, se to him?
A Yes, sir, I did.
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Q
A
breath test,
What was his response?
He understood, and he said he would comply.
And he did sign it then?
Yes, sir, he did.
What if anything happened after that?
Agent Richwine attempted, to give him the
which he failed to give two samples --
MR. FOSTER: I am going to object unless
this officer was present during that.
THE COURT:
MR. EDWARDS:
THE WITNESS:
MR. EDWARDS:
am assuming he was.
He was present, Your Honor.
Yes, sir. I was present.
Unless the objection is
sustained, I was going to ask what your observations were.
THE COURT: No. Go ahead.
THE WITNESS: I observed the defendant to
give -- attempt to give, two breath samples. When he did
he would blow into the machine after Agent Richwine
specifically told him how to do it. I saw him blow into
the machine. And his cheeks would puff out. And he would
strain to blow. There was not a constant tone, which means
there was air going into the machine. The machine timed
out. There wasn't a significant amount of air for a
sample.
BY MR. EDWARDS:
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Q Have you had occasion to observe --
MR. FOSTER: I am going to object and ask
that that testimony be stricken unless there is a
foundation that he is an expert in how to give this test.
THE COURT:
saying what he observed.
MR. EDWARDS:
BY MR. EDWARDS:
That's overruled. He is just
Overruled.
Thank you, Your Honor.
Q Have you had occasion to observe the giving
of breath tests under circumstances like this to other
people?
A Yes, sir.
Q Are you familiar with how one properly
completes one of these breath tests?
Yes, sir, I am.
And do you have any idea how many times you
A
have watched this?
A Oh,
A
to you that Mr.
since the two years I have been there,
at least twenty times.
Q And you had occasion then to see people
complete the test properly?
Yes, sir.
Based upon your observations, did it appear
Franklin was trying to complete the test
properly?
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BY MR.
MR. FOSTER:
THE COURT:
EDWARDS:
I am going to object to that.
Overruled.
Q Did he appear to be
complete the test properly?
A No, sir.
MR. EDWARDS:
Honor.
trying to give -- to
No further questions, Your
CROSS-EXAMINATION
BY MR. FOSTER:
Q Officer,
giving the field tests?
A
Q Yes.
A Yes,
Q Now,
did Mr. Franklin cooperate in
The standard field sobriety tests?
sir.
when you say that ibis cheeks puffed up
when he blew into the machine, isn't tlhat a sign that he
was in good faith trying to blow into the machine following
the operator's instructions? In other words, when you are
blowing into the machine, wouldn't it be normal for your
cheeks to puff up?
A I have never seen anybody do that, that has
done it properly, to see the cheeks blow out like they
were. I have never seen that. I have: seen people when
they blow you don't see their checks puff out. You see
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them strain, but you don't see big cheeks puff out.
Q It is your testimony because his cheeks were
puffing out that he was not in good faith blowing into the
machine?
A
Plus there was not a steady tone of air
coming through. You couldn't hear the steady tone that you
hear when people blow through the machine. It makes a
tone. It would blow just a little bit and then it would
stop. And then he would sit there with his mouth over it,
and just his cheeks were just puffed out.
Q How far away from the machine were you
located when he was blowing into it?
A I would say a desk two or length. The
machine was on a desk. And then there was a little bit of
space and then another desk, and I was behind that. So two
desks widths, ten feet at the most.
Q What is the noise that this machine makes?
A It is a tone.
Q What kind of a tone?
A A beep -- a steady tone. B-e-e-e-e-e-p when
you blow into the machine.
Q Did you hear that tone when he was blowing
into the machine?
A When he first started to blow, yes, and then
he would stop.
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tell
Q
A
Q
Q Then he would stop?
A The tone would stop, yes. And you could
he wasn't blowing.
How could you tell that?
Because there was no tone.
You don't know whether the machine was
defective or not, do you?
A No, sir, I don't.
Q Okay. And there was no verbal refusal to
blow into the machine, was there?
A No, sir.
Q And when he was instructed by the operator
to blow into the machine, he blew into the machine, didn't
he?
A Yes, but not correctly.
Q Are you certified as a iBreathalyzer
operator?
Honor.
A
NO, sir.
MR. FOSTER:
THE COURT:
MR. EDWARDS:
That's all I have.
Anything else?
No further questions, Your
Your Honor, at this time we call booking
agent Ralph Richwine.
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Whereupon, RALPH M. RICBiWINE, III, having
been duly sworn, testified as follows:
MR. EDWARDS: Your Honor, before I start
with Agent Richwine, I would like to offer State's Exhibit
1 into evidence. That's the chemical refusal form.
THE COURT: Unless there is objection, we
will admit it.
DIRECT EXAMINATION
BY MR. EDWARDS:
Q Good morning, Agent Richwine.
A Good morning.
Q Please state your full name and spell your
last name?
A Ralph Maurice Richwine, III. It is
R-i-c-h-w-i-n-e.
Q And by whom are you employed?
A Cumberland County District Attorney's
Office, Central Processing Department.
Q How long have you been employed in that
position?
A One year and two months.
Q What generally are your duties?
A Processing criminals tkat police officers
bring in off the street, the arrests they make, processing
DUI's.
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Q
that involve?
A
When you say processing DUI's, what does
I give them a breath test, their standard
field sobriety tests, entering information into the
computer, photographing and fingerprinting.
Q Do you recognize Mr. Franklin?
A Yes, sir, I do.
Q Could you point him out, please?
A Right over there.
MR. EDWARDS: Your Honor, let the record
reflect that Agent Richwine has pointed to Mr. Franklin.
BY MR. EDWARDS:
Q On March 31st, 2001, did you have occasion
to come into contact with Mr. Franklin?
A Yes, I did.
Q Under what circumstance:~ did you come into
contact with him?
Officer Hutcheson had brought him in for a
A
DUI arrest.
Q
Have you had any training in the use of an
Intoxilyzer machine?
A Yes, sir, I have.
Q And what training was that?
A Officer Meiss was our trainer. And that
took place last July -- or July a year ago, July 13th. I
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have a certificate here.
Q Have you been properly certified to operate
the Intoxilyzer machine?
A Yes.
Q And which model of Intoxilyzer machine?
Intoxilyzer 5000.
That evening were you using an Intoxilyzer
A
5000 machine?
A
Yes, sir, I was.
MR. EDWARDS: Your Honor, may I approach the
witness?
THE COURT: Yes.
MR. EDWARDS: Your Honor, I have an original
that I am going to need back. I made copies of it, but
this has been marked as State's Exhibit No. 2 on the copy.
BY MR. EDWARDS:
Q And I ask the witness just to take a look at
that for a second.
that document?
A
Q
A
instrument.
Q
using that
Agent Richwine, are you familiar with
Yes, sir.
What does that purport to be?
This is the calibration, and accuracy of the
And this is the same instrument you were
night?
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A
that's on the
Q
Yes. That's what's on the serial number
tickets.
In other words, the serial number on the
tickets coordinates to the certificate you have there?
A Yes, sir.
Q Was that machine properly calibrated?
A Yes, sir, it was.
Q Was it properly certified for its accuracy?
A Yes, sir.
Q At the time you administered the breath test
to Mr. Franklin, was the machine opera~ing properly?
A Yes, sir.
MR. EDWARDS: Your Honor, I would like to
approach again.
BY MR. EDWARDS:
Q
documents.
I am going to hand the witness two
And they are both originals again, Your Honor.
I have copies. One will be marked as State's Exhibit 3,
and one is State's Exhibit 4. I am going to give him 3 and
leave 4 right there.
Are you familiar with that document?
A Yes, sir.
Q And what does that purport to be?
A This is the ticket that prints out of the
Intoxilyzer.
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Q And how did that ticket come into existence?
A This comes out from the first time we asked
Mr. Franklin to give us a breath test, in which he failed
to give us a proper breath test. So we ended up with an
invalid test.
Q Now, the other ticket that I have there,
which is State's Exhibit 4, can you take a moment to review
that as well? And what does that purport to be?
A We offered him to take the test the second
time, to give him a chance to re-do it. He still failed to
blow properly. And we come out with a deficient sample.
Q I see on there that there are some numbers.
Can you explain what those numbers mean?
A Okay. The first one, the subject test, was
a .144. But if you see, it has as an asterisk beside it.
That asterisk means that it was a deficient sample. What
that is he didn't blow long enough. You have to keep the
tone going until a fourth digit comes up. And then I tell
the individual to stop blowing. Then we have the
sufficient sample. In this particulaz case he didn't keep
the tone going.
Q How about the number beneath that?
A That's the same thing, same as the first --
Q Again, didn't blow long enough to come up
with a sufficient sample?
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A Right.
MR. EDWARDS: Your Honor, I have a
videotape. It is about twenty minutes long. Amd if Your
Honor would permit me, I will go ahead and play it.
THE COURT: That's fine. Though I think the
germane portion would be where he was attempting to take
the breath test, am I right?
MR. EDWARDS: And that's what most of it is.
The beginning of the tape is just the reading of the
warnings that Officer Hutcheson has testified to. And as
Agent Richwine has just testified, there were two tests,
Your Honor.
videotape.
THE COURT: Okay.
MR. EDWARDS: That's why it is such a long
(Whereupon, the videotape was played.)
BY MR. EDWARDS:
Q Agent Richwine,
camera who was speaking to Mr.
that was?
A
Q
do the
there was somebody off
Franklin. Do you know who
test.
A
Q
Officer Hutcheson was back there.
There was someone who was telling him how to
Do you know who that was?
Oh, that was me, yes.
You videotape. Is that a fair and accurate
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representation of the testing process that you administered
that night to Mr. Franklin?
A Yes, it was.
Q Did Mr. Franklin ever properly complete a
breath test that evening?
A
Honor.
BY MR. FOSTER:
Q
A
No.
MR. EDWARDS: No further questions, Your
CROSS-EXAMINATION
Q
February 16th,
A
Hutcheson --
Q
Katherine L.
A
Q
February 16th,
A
Q
March 31st,
A
Officer, may I see your certification?
These are the two for the Intoxilyzer 5000.
Officer, this calibration test was given on
is that right, of this year?
You mean for the certificate that Officer
Exhibit 2, which says calibration, signed by
Shrauder?
Yeah. Whatever date is on there.
Is Exhibit 2, and it says calibration
'01 --
Right.
This testing of Mr. Franklin was given on
wasn't it?
Right.
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Q
thirty days
A
So the calibration test was not given within
of Mr. Franklin's testing?
The calibration only needs to be done once a
year.
days.
It is the accuracy that has to be done within thirty
And you will see that's the one to the right.
Q Let me ask you this. Do you have a
simulator solution certificate
this machine?
A
technician. I
Q
from tke manufacturer for
I don't. That's the responsibility of the
am just a trained operator.
Do you know if there is a simulator solution
certificate for this machine?
A Not the solution certificate. I don't know
of that, no.
Q Do you know if there is an ampule
certification for this machine?
A No. I don't know. That's all taken care of
by the technician,
Q Did you test this machine within twenty-four
hours of giving Mr. Franklin his test?
A The instrument is tested everyday at the
beginning of the shift.
Q By whom?
A
Q
For that particular day I done it myself,
What was the result of that test within that
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twenty-four hour period that you gave,
A
second ticket.
that you conducted?
I don't recall, but that would show on the
The calibration check was a .094, which
means
of Mr.
defective,
reading?
A
supposed to.
Q Was there a waiting period of
before the test was given?
A Yes, sir, there was.
it was good.
Q Was there any test given before the testing
Franklin within the twenty-four hour period?
A I don't recall that.
Q Isn't it possible that this machine was
and that's why it didn't give an accurate
The instrument was operating the way it was
twenty minutes
good
you?
Q Now, you couldn't tell if he was giving a
faith effort to blow into the machine or not, could
A I see enough of these d[one to know that you
don't -- it is very simple to blow into this instrument.
Q Well, let me ask you this. Apart from the
sounds of the machine, didn't it appear as if Mr. Franklin
was making a good faith effort to blow into the machine?
A No. It appeared to me he was keeping all
the air in his mouth. If you are blowing into the machine
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correctly, it is going to be like blowing up a balloon.
Your cheeks will come in, and the air is all concentrated
into the tube. His air was concentrated into his mouth.
That's why it was puffed out. And any little bit of air
that was coming out was coming around the corner. It is
very easy to blow into this instrument unless you have got
severe, severe health problems.
Q Didn't you say on the tape that he was
trying too hard to blow into the machine?
A What I meant by that was by his checks being
puffed out.
Q Has this machine ever proven to be defective
since you have been operating it?
A I couldn't say that on this particular
machine. We have had some that have been defective. And
what we do is put them out of service immediately and call
the technician.
Q You don't know whether or not this machine
has been defective before or after this test was given?
A No, sir. I do not. But I just know at that
time it was not defective.
Q How long have you been operating this
machine?
A
I have been operating Intoxilyzers for
This particular machine--
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of that,
A Well, I have no idea. We don't keep
because one time I work at one center, one
There is two Intoxilyzers at
track
time I
each
work at another center.
center.
Q
Would it be fair to say that Mr. Franklin
was fully cooperative during this
A He was cooperative
don't think he was cooperative as
testing procedure?
in some respects, but I
far as blowing into the
instrument. He did not follow the instructions.
Q And what you are saying is you travel
between various booking centers?
Yes, sir.
And this is a machine that you use
no.
A
occasionally?
A
Q
Yes, sir.
And you are unable to say whether it has
been defective on other occasions or not?
A That particular instrument I don't know,
But whether it was, it is serviced, it would not be --
would not have been in the center in service
defective, because we have a technician that
that.
tests,
it
if it were
takes care of
Q These ampule tests and simulator solution
wouldn't they show whether or not it was defective?
A When we give the test at the beginning of
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the shift,
to change
at the beginning of the testing of Mr. Franklin?
it after the test?
A No, no. I gave one at the beginning of
shift.
test?
if we have a low reading, that means it is time
the simulator solution.
Q As I understand it, you didn't give a test
You gave
Q
I see. And what was the results of that
the
A I don't know. I would have to look on
my -- we have what's
where I record that, but,
to what's on the ticket here,
Q
A No, sir, I don't.
Q
called a daily activity log. That's
like I it would be similar
the
You don't have that
said,
.094:.
log here with you today?
Are you able to remember whether or not the
machine passed the test or not?
A If it would not have passed, I would have
changed the solution. That's the idea of doing the test.
So regardless, if it would have passed[ or not, I would have
put new solution on.
right calibration.
MR.
MR.
That would have brought it up to the
FOSTER: That's ali. I have.
EDWARDS: Very briefly, Your Honor.
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BY MR.
State's Exhibit 2, and that's the
do you have that in front of you?
A
Q
A
REDIRECT EX3%MINATION
EDWARDS:
Q On page three of what's been marked as
certificate of accuracy,
No, I don't.
What is page three?
That's the accuracy certification that our
technician does every month.
Q And does that show that this machine was
certified properly on the 12th of March, 20017
A Yes.
Q
on which you administered the test
A Yes, sir.
Q Thank you.
MR. EDWARDS: No
Honor.
And was that within thirty days of the date
to Mr. Franklin?
further questions, Your
BY THE COURT:
MR. FOSTER: Nothing further, Your Honor.
Q Agent Richwine, I noticed in this particular
case, I have watched some of these training sessions, and I
have watched more than one of these videotapes. But I
noticed that he had virtually the entire mouth piece in his
mouth.
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A
way you get
your mouth --
A
Q
Yes.
Is that common?
No. That's why I --
Usually the persons blows into the -- the
it into the tube is to have the little end in
That's what I was trying to tell him.
With the bulb outside of your mouth.
That's
how you get the air in the machine.
A Right.
Q You didn't explain that to him?
A Yes. I did try to tell him that. It is on
the tape. I tried to tell him to pull it out further.
But he didn't?
No.
Why didn't you pull it out and show him how
out?
explained everything to him.
It was
Q
far it had to be
A I
explained.
You can step down.
Your Honor, at this time I
into
THE COURT: Thank you.
MR. EDWARDS:
would like to offer State's Exhibits 2, 3 and 4
evidence.
THE COURT: We will admit them.
MR. EDWARDS: And with your permission,
Your
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Honor,
I am going to substitute copies for them.
THE COURT: Yes, of course.
MR. EDWARDS: I believe 1 is already in,
Your Honor.
Honor.
Franklin,
THE COURT: Yes.
MR. EDWARDS: The Commonwealth rests, Your
THE COURT:
MR. FOSTER:
Your Honor.
Whereupon,
duly sworn,
BY MR. FOSTER:
Q
A
Q
A
Q
A
Q
A
Q
A
Q
Very well.
We would like to call Mr.
DAVID M. FRANKLIN, having been
testified as follows:
DIRECT EXA-M I NAT I ON
State your full name for the record, please?
David Michael Franklin, F-r-a-n-k-l-i-n.
How old are you, Mr. Franklin?
Excuse me, sir?
What is your age, sir?
Forty-two.
And where do you work?
Prudential Financial.
And what do you do for them?
I am an agent.
Now, on this date, March 31st of this year,
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do you recall being stopped by Officer Hutcheson?
A Yes, sir.
Q Did you cooperate fully in giving the field
tests?
A
Yes, sir.
You were then taken to the Booking Center?
Yes, sir.
And at the Booking Center did you agree to
take the Breathalyzer 5000 test?
A Yes, sir.
Q Did you fail to cooperate in anyway?
A No, sir.
Q Are you used to receiving orders and taking
orders, Mr. Franklin?
A Yes, sir.
Q Why is that?
A I am retired from the Marine Corps, where I
spent twenty years, six months.
Q Do you need your motor vehicle to perform
your job for Prudential?
A Yes, sir.
Q Why is that?
A Well, everything we do is outside of the
office basically. Whereas, I would have to go see all
clients in the normal routine of my duties.
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Q Ail right.
testimony of Mr. Richwine,
A Yes, sir.
Q Okay.
as hard as you could?
A Yes, sir.
machine
Now, you have heard the
is that correct?
Did you try to blow into the machine
Q Did you make any attempt to
or falsify the test?
A No, sir.
Q Do you recall
not to place
cheat the
Officer Richwine telling you
the whole mouth piece in your mouth but to
just blow into the tip of it, the end of it?
A Well, I was following his instructions at
the time --
Q
A
blow through the tube.
Q The entire piece?
regarding that mouth piece?
A Just to place
it.
What were his instructions?
To place the plastic piece in my mouth and
What did he tell you
it in my mouth and blow into
Q What part of it, if any?
A Well, if I remember right, the plastic was
round, and it had like a straw-like cylinder sticking out
at one end. So what I did was place my ]mouth down on the
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A
could?
A
cylinder and then blew through the tube.
Q Did he ever tell you just to blow into the
straw portion of it?
A He just said try to force the air through
that portion.
Q Were you ever told anytime during this test,
and you had an opportunity to see it on tape, just to blow
into the tip of it, the straw portion of it, rather than
place the entire mouth piece in your mouth? Were you ever
told that?
Not that I recall, sir, but, no.
Were you following his instructions?
Yes, sir.
Did you blow into the machine as hard as you
Yes, sir.
MR. FOSTER:
MR. EDWARDS:
BY MR. EDWARDS:
Q Mr.
Cross-examine.
Thank you.
CROSS-EXAMINATION
Franklin, you have heard Officer
Hutcheson testify that when he stopped you for the traffic
violation and you approached your vehicle, he smelled a
strong odor of alcohol on your breath?
A Yes, sir.
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Q
Correct?
A
questions.
You were drinking that night, is that
Yes, sir.
MR. EDWARDS: Thank you. No further
MR. FOSTER: Does the Court have any
questions of this witness?
Your Honor.
THE COURT:
MR. FOSTER:
THE COURT:
MR.
No. Thank you.
You may step down.
Anything further?
EDWARDS: Nothing from the Commonwealth,
THE COURT: Okay. Care to make any
statements? I know there are some cases that deal with the
assessment of whether or not the person has made a good
faith effort to blow into the machine and talks about I
think the necessity to prove evidence of some sort of
illness or something if you claim not to be able to produce
a sample, but I don't sense that that's what Mr. Franklin
is telling me. I think he is telling me that he tried to
blow into the machine and it didn't go in. I think I know
why. Anything else?
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(Whereupon, Mr. Foster closed on
behalf of the Defendant.)
(Whereupon, Mr. Edwards closed on
behalf of the Commonwealth.)
THE COURT: Okay. We will take it under
advisement. Thank you.
MR. EDWARDS: Thank you,. Your Honor.
(End of proceedings.)
32
CERTIFICATION
I hereby certify that tihe proceedings are
contained fully and accurately in the notes taken by me on
the abovecause and that this is a correct transcript of
same.
Barbara E. Graham
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
A. Hess, J.
/inth Judicial District
33