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HomeMy WebLinkAbout04-4847 II IVO MARTINOVIC, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: C>I/ -4f>i17 ~'Ui I~ COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAL APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE AND NOW, comes the Appellant, Ivo Martinovic, Jr., by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., L.L.C., respectfully avers the following: 1. Appellant resides at 409 ~ Market Street, New Cumberland, Pennsylvania, 17070. 2. The Appellant received a Notice dated September 06, 2004, that as a result of his alleged violation of Vehicle Code Section 1547 (b) (II), Chemical Test Refusal, on June 26, 2004, his driving privileges were being suspended for a period of one year, effective suspension date October 11, 2004, at 12:01 a.m. A true and correct copy of the Notice is attached as Exhibit "A." 3. The Appellant submits that the police officer lacked a reasonable basis to request that Appellant submit to a chemical test. 4. The Appellant submits that he did not intelligently and voluntarily refuse to submit to a chemical test. 5. The Appellant submits that he unable to was intelligently and voluntarily refuse to submit to a chemical test \I due to his inability to understand and speak English. 6. The Appellant submits his actions did not constitute a refusal. WHEREFORE, your Appellant respectfully requests that this Honorable Court schedule an evidentiary hearing on the matter. Date: r-;<Jj-C'l Respectfully submitted, n p~k LE 1.(' ",quire 2108 Market street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 II IVO MARTINOVIC, Appellant v. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. : LICENSE SUSPENSION APPEAL ATTORNEY VERIFICATION The undersigned, Patrick F. Lauer, Jr., Esquire, hereby verifies and states that: 1. He is the attorney for the Appellant, Ivo Martinovic; 2. He is authorized to make this verification on his behalf; 3. The facts set forth in the foregoing Appeal are known to him and not necessarily to his client; 4. The facts set forth in the foregoing Appeal are true and correct to the best of his knowledge, information and belief; 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: ?- Ji./-D,/ Respectfully submitted, !i:11 LOf.: /&qu,,, 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 II IVO MARTINOVIC, Appellant v. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. : LICENSE SUSPENSION APPEAL CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Camp Hill, Pennsylvania, through first class certified mail, prepaid and addressed as follows: Pennsylvania Department Office of Chief Counsel Third Floor, Riverfront Harrisburg, PA 17104 of Transportation Office Center Da te: 1'-,;l '1-t 'I Respectfully submitted, \?~ ({ J/t- Patrick F. Lauer, Jr., Esquire 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 /, IVO MARTINOVIC 409 1/2 MARKET STREET COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATI9N Bureau Of~iver Licensing Mail Date: SEMBER 06, 2004 .' ~ WID' 042436117435611 001 PROCESSING DATE 08/30/2004 DRIVER LICENSE' 26099677 DATE OF BIRTH 04/08/1953 17070 NEW CUMBERLAND PA Dear MR. MARTINOVIC: This is an Official Notice of the Suspension of your Drivin9 Privilege as authorized by Section 1547BlI of the PennsYlvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 06/26/2004: . . Your driving privilege is SUSPENDED fo~ a pe~iod of 1 YEARCS) effective 10/11/2004 at 12:01 a.m. COMPLYING WITH THIS SUSPENSION You must return all current PennsYlvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 10/11/2004. You may surrender these items before, 10/11/2004, for earlier credit; however, YOU may not drive after these items are surrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, yoU may apply for and obtain a photo identification card at any Driver License Center for a cost of $10.00. You must present two (2) forms of proper iden- tification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.> in order to obtain your photo identification card. You will not ~eceive c~edit towa~d se~ving any suspension until we ~eceive you~ licensees). Complete the following steps to acknowledge this suspension. 1. Return all current PennsYlvania driver's licenses, learner's permits and/or camera cards to PennDDT. If YOU do not have any of these items, send a sworn nota- rized letter stating YOU are aware of the suspension of your driving privilege. You must specify in your letter whY you are unable to return your driver's license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation 042436117435611 Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your PennsYlvania driver's licensees), learner's permit(s), and/or a sworn notarized letter, PennDOT will send YOU a receipt con- firming the date that credit began. If you do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, you will not be given credit toward serving this suspension. PennDOT phone numbers are liste~ at the end of this letter. 3. If YOU do not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for prosecution under SECTION 1571 (a) (4) of the PennsYlvania Vehicle Code. ) PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the apPlication. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. APPEAL You have the right to appeal this-action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, SEPTEMBER 06, 2004, of this letter. If you file an appeal in the County Cou~t, the Cou~t-w1ll give you a t1me- stamped ce~t1f1ed copy of the appeal. In order for your appeal to be valid, YOU must send this time-stamped certi- fied COpy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 Remember, this is an OFFICIAl. NOTICE OF SUSPENSION. You must return all current Pennsylvania driver license products to PennDOT by 10/11/2004. . . 042436117435611 SincerelY, .~~.~ Rebecca l. Bickley, Director Bureau of Driver licensing INFORMATION 7:00 a.m. to 9:00 p.m. IN STATE 1-800-932-4600 TOO IN STATE 1-800-228-0676 OUT-OF-STATE 717-391-6190 TOO OUT-OF-STATE 717-391-6191 WEB SITE ADDRESS www.dmv.state.pa.us t( (.) ~ (") r-'> 0 t.-::::> V) (-- c:;:) -n i .r (/J ~ ~ ,'j' rn .., -n --0 PiP V, ,,~ ~gPJ - ~ ~s~j~,? ~ ~ C> ;,;":'1 C'J) -rJ :JC' ,,~ () /.,~";rn r- Ol ' --', ~ 0 p::- r~,) J..' G' .< f II SEP 2 9 2004 ~ 7 I 1 i :'i' , , IVO MARTINOVIC, Appellant IN THE: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: CJI./ ~4P1.{7 r!tCJlL'-rfJ'z..~ COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee LICENSE SUSPENSION APPEAl~ ORDER OF COUR! AND NOW, this JO{). day of A~ 2004, upon consideration of this APPEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE, it is hereby Ordered that a Hearing on the matter shall be held on /3&J-. day of ~_ 2004, at I:?o o'clock +. m. in Courtroom No. .2.. of the Cumberland County Courthouse. A supersedeas is granted pursuant to Vehicle Code Section 1550 (b) (1) until such time that this honorable court resolves this appeal. J. Distribution: PA Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburgr, PA 17104 Patrick F. Lauer, Jr., Esq., 2108 Market St., Camp Hill, Pa 17011 \r:~,,\,.jr f\\}t:~-..::;.\-=:d \ \~I"~" ..-.."",,, (\J..\ 'i.\ \'J.' -'~"C_', t~ h.J to :\1 ~!c1 QS d3S IjUUI /,/;1;.C:\}'\.\C:',d :.,-,L :-0 :()\::I,:\C.(]'jl\:\ IVO MARTINOVIC, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. 2004-4847 COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT LICENSE SUSPENSION APPEAL ORDER AND NOW, this 1& v~~ , 2004, and the Matter day of is Continued and rescheduled for hearing on the 7TH day of February, 2005 at 2:00 p.m. in Courtroom No. ~ ofthe Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT / J. Distribution: Aleorge H. Kabusk, Esquire, PennDOT, Riverfront Office Center-3rd Floor, 1101 South Front Street, Harrisburg, PAl 71 04-2516 ~trick F. Lauer, Jr., Esquire, 2108 Market Street, Camp Hill, PA. 17011 -j C/::"';J cz :11 t',! i': 'I 8' ~ON ~OUl .> .. ':~::<\~(t:~~~='Gd 3Hl :~'~;~ J~~~C,~~(ETY~~ ,,., ~~.1 IVO MARTINOVIC, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 04-4847 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL ORDER OF COURT AND NOW, this _, of-. day of February, 2005, the order of the Department of Transportation, Bureau of Driver Licensing, suspending the driving privilege of Ivo Martinovic for one year, IS REVERSED. By the~ourt, ,/ ~rge H. Kabusk, Esquire For the Department of Transportation '-l ('u~ Edgar B, Bayley, J . I :sal ~ePh D. Caraciolo, Esquire For Appellant O:1-/Q -05 I " {,,<~ :' 1 ! .~., "", I ":~:j i:. IVO MARTINOVIC, APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE 04-4847 CIVIL TERM IN RE: LICENSE SUSPENSION APPEAL OPINION AND ORDER OF COURT Bayley, J., February 10, 2005:-- Ivo Martinovic filed an appeal from the suspension of his driving privilege by the Department of Transportation for one year for refusing a chemical test following his arrest for driving under the influence on June 26, 2004. 75 Pa.C,S. Section 1547, A hearing was conducted on February 7,2005, As set forth in Balthazar v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 123 Pa. Commw, 435 (1989): An operator's driving privileges may be suspended for refusal to submit to alcohol testing where the Department proves that the driver involved: (1) was placed under arrest for driving while under the influence of alcohol, and the arresting officer had reasonable grounds to believe the driver was intoxicated; (2) was asked to submit to alcohol testing; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take the test 1m v. Department of Transportation, 108 Pa. Commonwealth Ct 206, 529 A.2d 94 (1987). Once the Department has shown that a motorist refused to submit to chE!mical testing, the burden shifts to the motorist to prove by competent evidence that he was unable to make a knowing and conscious refusal. 1m, (Footnote omitted.) The Commonwealth proved that in the early morning of June 26, 2004, appellant 04-4847 CIVIL TERM was stopped for speeding in the Borough of Lemoyne by Officer Timothy Hutchinson of the West Shore Regional Police Department. After conduGting an investigation at the scene, including field sobriety testing, Officer Hutchinson had reasonable grounds to believe that appellant was intoxicated, Officer Hutchinson testified that appellant answered, in broken English, "Yes" to many of his questions, said he had been fishing, and had not been drinking. The officer placed him under arrest for driving under the influence, and took him to a booking center. An attempt was made to obtain an interpreter for appellant, who speaks Serbo-Croatian, but one was not available. While being videotaped, Officer Hutchinson read Implied Consent warnings to appellant. He then said, "Will you submit to a chemical test of your breath, Will you blow into that machine?" Appellant looked at the machine, Hutchinson then blew into his hands and said, "blow into that machine - will you do that?" Appellant shook his head. Hutchinson said, "Will you do that?" Appellant shook his head and mumbled something, Hutchinson said, "Will you say it loud - yes - louder - yes -- are you going to do it?" Appellant mumbled something, blew into his hands, shrugged his shoulders, and mumbled some more. Hutchinson said, "Yes or no." Appellant mumbled something that is not decipherable on the videotape, Hutchinson said, That's yes." The booking agent agreed. A booking agent operated a BAC Data Master that was certified accurate, properly calibrated, and functioning properly. He gave appellant three opportunities to perform a breath test. During each opportunity appellant blew an insufficient amount of -2- 04-4847 CIVIL TERM air into the machine despite repeated instructions, and physical descriptions, to keep a tight seal around the mouthpiece, and to blow a steady flow of breath until told to stop, The operator stopped the testing and wrote up a refusal. He testified that appellant said he knew some English and had taught some English in Germany. Appellant testified through an interpreter at the hearing on his appeal. He is age 52, He states that he does not speak English. He was born in the former Yugoslavia, He immigrated to the United States from Bosnia, Herzegovina in 1997. He has never learned to speak English, He tried some lessons but quit. He is an electrician, but his attempts to keep such a job here have failed because he cannot speak English. Soon after he arrived in Pennsylvania he obtained a driver's license with the help of an interpreter. He works in a warehouse where there are some other employees who speak Serbo-Croatian. When he obtained his warehouse job, his sister, who emigrated from Bosnia, Herzegovina a year before appellant, and who now speaks English, went with him in order to explain the work he was required to perform, He has no idea how the Data Master operator could have ever thought that he taught English in Germany, or how Officer Hutchinson could ever have thought that he was fishing in the middle of the night. Appellant's sister testified and confirmed that her brother does not speak English. After listening to her and appellant and viewing and listening to the videotape, and despite Officer Hutchinson's testimony that he believed that appellant understood all of what he said to him, we are fully satisfied that appellant has proven that he does -3- 04-4847 CIVIL TERM not speak English sufficiently to have possibility understood the Implied Consent warnings. While he routinely answered "yes" to questions by Officer Hutchinson at the scene of the stop, that is of little significance given the fact that he speaks virtually no English, Therefore, unlike the facts in Balthazar, we find that because of appellant's lack of understanding of English, that Officer Hutchinson did not adequately warn him that his license would be suspended if he refused to take a test Accordingly, the following order is entered, ORDER OF COURT AND NOW, this --10+-- day of February, 2005, the order of the Department of Transportation, Bureau of Driver Licensing, suspending the driving privilege of Ivo Martinovic for one year, IS REVERSED. By t~ COUlt, George H, Kabusk, Esquire For the Department of Transportation / Joseph D, Caraciolo, Esquire For Appellant :sal -4- . . IVO MARTINOVIC, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent NO. 04-4847 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS LICENSE SUSPENSION APPEAL Proceedings held before the HONORABLE EDGAR B. BAYLEY, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on February 7, 2005, 2:09 p.m. in Courtroom Number Two. APPEARANCES: GEORGE H. KABUSK, Esquire For the Commonwealth JOSEPH D. CARACIOLO, Esquire For the Petitioner . . INDEX TO WITNESSES FOR THE COMMONWEALTH DIRECT CROSS REDIRECT RECROSS 1. Timothy Hutcheson 7 17 26 28 2 . Brandon Mitchem 29 36 40 FOR THE PETITIONER 1. B1anka Zborsky 41 44 47 2 . Ivo Martinovic 48 51 2 . . INDEX TO EXHIBITS FOR THE COMMONWEALTH IDENTIFIED ADMITTED 1. DL-26 27 40 2 . Test sample 15904 17 40 3. Test sample 15905 17 40 4. Test sample 15906 17 40 5. Videotape 31 40 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . February 7, 2005, 2:09 p.m. Carlisle, Pennsylvania (Whereupon, the following proceedings were held:) (Whereupon, Commonwealth's Exhibits 1 through 4 were marked previous to hearing.) THE COURT: You may proceed. MR. KABUSK: This is the case of Ivo Martinovic versus Commonwealth of pennsylvania, Department of Transportation, case number 04-4847. This is an appeal from a notice of suspension dated September 6, 2004, which informed the petitioner that as a result of his violation of Section 1547 of the Vehicle Code relating to chemical test refusal on 6/26/2004 his driving privilege was suspended for a period of one year. The Department now calls Officer Hutcheson. MR. CARACIOLO: Your Honor, I have preliminary matters. First of all, this is Blanka Zborsky. This is the defendant's sister. She'll be translating for him throughout the hearing. The Department said they have no objection to this. THE COURT: What language are we using? MR. CARACIOLO: Serbo-Croatian. MR. KABUSK: I would like some further qualifications regarding her qualification to translate. 4 . . 1 THE COURT: Is he going to testify? 2 MR. CARACIOLO: He will be testifying, Your 3 Honor. 4 THE COURT: Ma'am, what is your name? 5 THE INTERPRETER: My name is Blanka. 6 THE COURT: Are you married to the -- 7 THE INTERPRETER: No, that's my brother. 8 THE COURT: This is your brother? 9 THE INTERPRETER: Yes. 10 THE COURT: And your native language is? 11 THE INTERPRETER: Serbo-Croatian. 12 THE COURT: And is his? 13 THE INTERPRETER: Serbo-Croatian also. 14 THE COURT: Does he speak any English? 15 THE INTERPRETER: No. Really, really a 16 little bit, just little bit. He could not understand 17 nothing. 18 THE COURT: You speak fluent English? 19 THE INTERPRETER: Thank you. 20 THE COURT: Do you? 21 THE INTERPRETER: Yeah. My husband is 22 American. I learn from him. 23 THE COURT: All right. Have you always lived 24 here or did you live in Serbo-Croatia before? 25 THE INTERPRETER: I come -- eight years ago I 5 . . 1 come to the United States. 2 THE COURT: Did you know English before you 3 came? 4 THE INTERPRETER: No. 5 THE COURT: Do you feel that you can 6 adequately translate word for word all of the testimony in 7 this case? 8 THE INTERPRETER: I'm going to try my best. 9 THE COURT: I am going to allow her -- do you 10 wish to ask her any questions? 11 MR. KABUSK: No, Your Honor. 12 THE COURT: I am going to have you raise your 13 right hand. You swear that the translation you will make in 14 this case will be true and correct to the best of your 15 abilities? 16 THE INTERPRETER: Yes. 17 THE COURT: And do you also affirm that you 18 will let us know if you feel you can't translate anything? 19 THE INTERPRETER: Yes, I will. 20 THE COURT: All right. I will proceed. 21 MR. CARACIOLO: And, Your Honor, I would just 22 ask that if there are any additional witnesses here that 23 they be sequestered at this time. 24 THE COURT: I am not going to sequester 25 witnesses. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . MR. CARACIOLO: Thank you, Your Honor. THE COURT: Let's proceed. We will go very slow with the translator. MR. KABUSK: The Department calls Officer Hutcheson. Whereupon, TIMOTHY HUTCHESON, having been duly sworn, testified as follows: THE COURT: If he gets ahead of you or we get ahead of you, you stop us, okay. THE INTERPRETER: Okay. THE COURT: Nice and slow. DIRECT EXAMINATION BY MR. KABUSK: Q Officer Hutcheson, please state your name and spell your last name for the record. A My name is Timothy Hutcheson, H-u-t-c-h-e-s-o-n. Q Where are you employed? A I'm a patrolman with the West Shore Regional Police Department. Q During the course of your official duties, have you had occasion to investigate an alleged incident of DUI on or about January 26, 2004 -- excuse me, June 26, 2004? 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Yes, I did. Q Could you please tell the Court about that incident? A On that date and time as mentioned I was in full uniform and on duty operating a marked police vehicle. I timed a maroon sedan traveling 44.2 miles an hour in a 25 mile an hour zone. THE COURT: Forty-two? THE WITNESS: 44.2. THE COURT: In a? THE WITNESS: Twenty-five mile per hour zone. This occurred in the 300 block of South Third Street in the borough of Lemoyne. I activated my emergency lights and siren and stopped the vehicle in the 600 block of Market Street. At that time the defendant, who is seated to the left of counsel, exited his vehicle and started towards my patrol car. I advised him three times to stop. When he didn't, I drew my service weapon and then he quickly retreated back to his vehicle. I approached the operator -- THE COURT: Go a little slower. THE WITNESS: I approached the operator and asked him for his driver's license, registration and proof of insurance, at which time he did give me a Pennsylvania driver's license that identified him as the defendant. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . While speaking with him, I could detect a strong odor of an alcoholic beverage on his breath. While he spoke, his eyes were red and glassy and his broken English was slurred. I know this because I asked him where he was coming from, and he told me he was fishing down at the river. I then asked him if he had any alcoholic beverages to drink tonight, and he said no. I then asked him to perform standard field sobriety tests which he did. BY MR. KABUSK: Q Prior to that, what did you ask him? Such as, did you give him any instructions? A I did ask him if his driver's license -- the address on his driver's license was correct. Q What did he respond? A He said, yes, that he lived with his sister. Q He said that to you? A Yes. Every time I asked him a question I got an answer from him. Q What sort of questions did you ask him? A I asked him if it was his vehicle. He said yes. Again, I asked him if the address was correct, and he said yes. When I asked him if he understood each test that I asked him to perform, he said yes. Q Now, did you ask him to exit the vehicle? A Yes, I did. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q And how did you convey that information to him? A I asked him would you step out of the vehicle, please, and walk over to the sidewalk. He said yes. He got out and walked over to the sidewalk. Q Then what happened? A We performed the standard field sobriety tests on the sidewalk in the 600 block of Market Street. Q Did you give him instructions? A Yes, I did. Q And how did you give him instructions? A I demonstrated each test and I talked through each test. Q And how did he respond to you? A Every time I asked him if he understood he said yes. Q Then what happened? Would you tell us about the field sobriety tests? A Yes. The first test that was performed was the horizontal gaze nystagmus. It could not be performed due to the fact that the defendant could not follow the instructions I gave him. I told him several times to follow the object with his eyes, and he would keep moving his head. I would tell him to stop moving his head and asked him if he 10 . . 1 understood, and he said yes. But each time I would move the 2 object he would turn his head and follow it with his head 3 instead of his eyes as instructed. 4 Q Then what happened? 5 A The next test I administered was the 6 walk-and-turn test. 7 Q How did you convey the request to him? 8 A I spoke to him and demonstrated the test of 9 what I wanted him to do. I did score him as a six on the 10 walk-and-turn. He could not keep his balance during the 11 instruction stage. He started too soon. He missed 12 heel-to-toe on all steps. He just took regular steps. 13 He raised his arms past 6 inches, not at a 14 full flap but more than 6 inches past his waistline. He 15 took twelve steps on each set of nine. He performed an 16 improper turn by just turning around not as instructed. 17 The final test I administered was the 18 one-legged stand, which I did not attempt because I could 19 not keep him from standing still. He kept falling over, so 20 it was stopped for his safety. 21 Q Then what happened? 22 A I administered a preliminary breath test. 23 Q How did you convey that request to him? 24 A I asked him to take a deep breath and blow 25 into the tube, and I mimicked the blowing by going (witness 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . blew into microphone) and told him to blow until I told him to stop. Q What did he do? A He did what I asked him to do. Q What were the results of that preliminary breath test? MR. CARACIOLO: I'm going to object to that, Your Honor. I won't object if he's asking for a positive or negative reading, but if he's asking for a specific number I would object. THE COURT: Why? MR. CARACIOLO: The preliminary breath test is not a scientific measurement. It's only something to detect whether or not there is alcohol, not the extent of alcohol. So once again, if he's going to testify there is alcohol in the system, I will not have an objection, but if he's going to testify to the amount I would. MR. KABUSK: Your Honor, this goes to the reasonable grounds -- to the officer's state of mind to determine whether he has reasonable grounds to believe the petitioner operated the motor vehicle while under the influence. THE COURT: Sustained. Sustained. I won't allow the actual breath test in. Did it show he had alcohol in his system? 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . THE WITNESS: Yes, sir. BY MR. KABUSK: Q Did he have any problem performing that test? A No, sir, he did not. Q Then what happened? A Based on my observations, education, experience and training it was my opinion that the defendant was under the influence of alcohol to a degree that rendered him incapable of the safe operation of a motor vehicle. He was placed under arrest and then transported to the Carlisle Booking Center. Q How was he placed under arrest? A I turned him around. I placed handcuffs on his hands to the rear of his back. I explained to him that he was under arrest, and then I placed him in my vehicle. Q Did you have to forcibly do this or did he cooperate? A He cooperated. Q And did you convey the information through the use of English language? A Yes, sir, I did. Q What words did you use? A Sir, you're now under arrest for driving under the influence of alcohol or a controlled substance. Q What was his response? 13 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A He did not give me a response. Q And then when you put him in handcuffs how did you do that? A I took one hand, put a handcuff on his right hand and then the other on his left hand. Q Did he follow any of your instructions at that period of time? I just told him to stand still while I did asked him to get in the back of my car which A it, and then I he did. Q A Q And you asked him in English? Yes, sir. Did you have to demonstrate or did he just do that on his own? A He did that on his own. Q And then, what, you placed him in the patrol vehicle? A Yes, sir. Q And then what happened? A We drove him up -- or I drove him up here to the Carlisle Booking Center on the third floor. Q Did you have any conversations in the vehicle while you were in route? A Not with him. Q Then what happened when you arrived at the 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . booking center? A We came up to the booking center, and I read him the Implied Consent Law on tape. And when asked if he would submit to a chemical test of his breath, he said yes. Q Then what happened? A I observed Agent Mitchem of the Cumberland County Booking Center instruct him on how to blow into the BAC DataMaster mouthpiece, and then I showed him twice how to provide a sample by blowing into a mouthpiece. Q And did he ever provide two consecutive sufficient samples? A There was three attempts at providing a sample. He did not blow long enough to obtain those samples. Q Did you stay for the entire test administration? A Yes, sir, I did. Q During this entire period, did he at all tell you that he could not understand what you were saying? A No, sir, at no time did he do that. Q What language did he respond to you in? A Broken English. Q Did he have any problems speaking to you? A No, sir, just the slurred speech. Q Did he have any unusual appearances? 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A The red and glassy eyes. Q What would you attribute the red and glassy eyes and the slurred speech to? A The overindulgence of alcohol. Q How would his behavior be compared to other people while under the influence? A About the same. Q After the administration of the breath test, what did you conclude? A Like I stated, based on my observations he was under the influence of an alcohol -- alcoholic beverage to a degree that rendered him incapable of the safe operation of a motor vehicle. Q And did he ever provide the requested breath samples? A No, sir. Q And did you obtain copies of the printouts from the DataMaster? A Yes, sir, I did. MR. KABUSK: May I approach the witness, Your Honor? THE COURT: Sure. BY MR. KABUSK: Q I'm going to show you what's been marked Commonwealth's Exhibit No.2. What does the last entry 16 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 indicate? A Under subject sample it says invalid. Q And the subject test number is -- what would that test number be? A 15904. Q And for Commonwealth's Exhibit No.3, what is that test sample number? 15905. A Q A Q number? A Q A Q signifies? A given. And what is the last entry? Subject sample invalid. And Commonwealth's Exhibit No.4, test 15906. And subject sample? Invalid. Thank you. Do you know what that invalid Yes, there was an invalid breath sample MR. KABUSK: I have no further questions. MR. CARACIOLO: Thank you, Your Honor. CROSS EXAMINATION BY MR. CARACIOLO: Q Officer, you have testified that you had to demonstrate each of the field sobriety tests, is that 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . correct? A Yes, sir. Q And you also testified that each time he answered you his answer was yes, is that correct? A Yes. Q So you asked him to step out of the car and he said yes? A Yes. Q You explained the field sobriety test and he said yes? A After each test, yes. Q You asked him if he understood what you were saying and he said yes? A Yes. Q You had asked him if he would provide to you a copy of his driver's license, registration and proof of insurance, correct? A Yes. Q And what did he actually provide to you? A His driver's license, his registration and his insurance card. Q Did he give you any answer other than yes? A I believe I testified to him saying about his sister living in New Cumberland and living with his sister in New Cumberland. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q So he provided you his address, correct? A Yes. Q At the field sobriety test you said the horizontal gaze nystagmus test he was having a hard time understanding your instructions, correct? A He couldn't keep his head still. Q How were you demonstrating to him that he should keep his head still? A I was telling him to look forward, keep his head still and follow the object with his eyes only. Q Along with telling him, were you also doing some type of demonstration? A No. Q You weren't saying don't move your head or making any indications? A No, I didn't do that. Q When you read to him the implied consent, did you read it to him in the same manner you would read it to any other person? A I read it -- yes, yes, I read it like I would -- Q You didn't read it slower than normal? A I do read it slow so everybody can understand. Q When you get to the part about blowing, do 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . you always put something to your mouth and go (counsel made blowing noise)? A I demonstrate that, yes. Q If someone comes in for a OUI that doesn't understand English, is there some protocol that you normally follow? A No. Q So what you do is you always just read the implied consent in English? A Yes. Q You never stop to determine whether or not they understand English? A No. Q So if someone does not understand English, you would read to them the implied consent with no regard to what their language actually is? A If I went through the whole thing like I did with him and they did not understand, I would ask for an interpreter like I did, but there wasn't one available. Q So you're saying you did ask for an interpreter? A Yes. Q And is that because based on your experience you thought that he was not understanding what you were saying? 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A I just wanted to cover all my bases. Q What I'm asking is, did you observe something that made you think that that base needed to be covered? A Just with his broken English. Q So his responses in broken English gave you the impression that he didn't understand what you were saying, is that correct? A No, no, that's not it. No, I knew he understood what I meant. Q Do you always ask for an interpreter? A This is the first time I had a case like this. Q And what do you mean by a case like this? A With somebody with broken English like this. Q So in all of your experience you never had another person with broken English? A Not Bosnian, no. Q But there have been other cases of broken English, correct? A Spanish, yes. Q So in other words, this is the first time you've ever had someone speaking Bosnian, correct? A Yes. Q Now, back to when you were reading the implied consent, what did you actually ask him just before 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . you asked him to assent, what actual language did you use to get his assent? A English. Q And did you read every word from the page and not add any other words? A I believe so. I believe I read it. Q So you didn't ask him if you would want to blow into the machine? A I believe I asked him if he would provide a breath sample. Q Did you paraphrase at all what 1547, the section of the implied consent says? A I don't believe so without looking at the tape. It's been so long. Q Do you normally paraphrase what the sections A No, sir. Q When you were reading him the implied consent, did you get the impression that he understood every word you were saying? A Yes. Q Did you get the impression that he was paying attention to every word you were saying? A Q Yes. At anytime did you have to get his attention 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . again because it appeared to you that he was wondering off? A I don't believe so. Q Now, you said that he had missed hee1-to-toe on all steps, is that correct? A Yes. Q And if he did not understand your instructions to walk heel-to-toe on all steps, wouldn't that be consistent with his response missing heel-to-toe on all steps? A Not based on my observations, no. Q If he did not understand you when you said walk heel-to-toe, he would not be walking heel-to-toe, correct? A I demonstrated it, what he needed to do, and he said yes he understood that. Q So you're demonstration is basically how he understood to walk heel-to-toe, correct? A Yes. Q In your demonstration, did you somehow demonstrate not to raise your arms? A I told him to keep them down at his side, and I demonstrated that. Q How did you demonstrate do not -- keep your arms down at your side? A I placed my hands across -- or alongside of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . my legs. Q Did you make it a point to place your hands down? A Yes, sir, I did. Q And do you make that a point to every person that does a field sobriety test? A Yes, I do. Q And you said that he had walked twelve steps instead of nine, is that correct? A That is correct. Q How many steps did you demonstrate? A I demonstrated four steps each way. Q So you demonstrated a total of eight steps? A That's correct. Q But you asked him to do nine? A Yes. Q And he actually did twelve? A Correct. Q Now, you said you were present throughout the entire time that he was giving a breath sample, correct? A That's correct. Q Were there any -- was there any occasion where you had to demonstrate to him visually how to blow into the machine? A Yes. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Is that because in your impression he did not understand what you were telling him to do? A No. Q So you demonstrated him blowing, and can you show us how you did that? A I just went (witness blew into microphone) and told him to keep blowing until he was told to stop. Q At anytime you were demonstrating that did you drop anything? A I don't know. Q Do you remember an occasion where he caught the mouthpiece that you were blowing in? A I don't know. I would have to look at the tape. Q Okay. Did you have any conversation with him other than about the DUI itself? A I did obtain a couple phone numbers and names from him. Q And when you first approached him -- or, excuse me, when he first approached you, you were drawing your weapon, is that correct? A Yes. Q Did he respond to that weapon? A Yes, he turned around and got back in his vehicle. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Did it seem apparent to you that he was responding to you as an authority figure each time you commanded him to do so? A No. Q When you wanted him to get into the back of the vehicle, he responded to your request, correct? A Yes, he did. MR. CARACIOLO: I have no further questions for this witness, Your Honor. THE COURT: Anything further? REDIRECT EXAMINATION BY MR. KABUSK: Q Your Honor -- excuse me. Officer, other responses to you that he gave in English didn't you earlier testify regarding -- did you ask him where he was? A Yes. Q And what did he respond? A He was fishing down at the river. Q Did he give you any other responses in English that you can recollect? A Yes, that he lives with his sister in New Cumberland when I asked him about the address, is this your correct address. Q And you testified that you knew he understood. How did you come to that conclusion? 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Because we kept going. If he didn't understand, we would still be stuck on the same question. Q And he did respond to you in broken English though, didn't he? A Yes, sir, he did. MR. KABUSK: Your Honor, we have a videotape for viewing. I didn't have the officer read the DL-26 word for word. That's on the tape. I was trying to save some time, but if I just may have him circle what he read. THE COURT: MR. KABUSK: THE COURT: Sure. May I approach the witness? Yes. BY MR. KABUSK: Q I'm going to show you what's marked Commonwealth's Exhibit No.1, sub-exhibit is number two. Would you circle what you read aloud? A Number one, two, three and four. MR. KABUSK: Thank you. I move for the admission of what's been marked Commonwealth Exhibit No.1, 2, 3 and 4. THE COURT: They are admitted. MR. KABUSK: That's all my questions. THE COURT: Anything else? MR. CARACIOLO: Yes, Your Honor. 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . RECROSS EXAMINATION BY MR. CARACIOLO: Q I want to direct your attention to where you said if he didn't understand you would be stuck on the same question. Isn't it true that he said yes to every answer of your question and therefore you moved on? A Correct. Q So if he didn't understand but answered affirmatively anyway, you would have moved past the same question, correct? A Yes. Q So there's nothing in the way that he answered the questions that made you understand that he didn't understand, correct? A Correct. Q But at the same time he may not have understood? A But he answered yes. Q And addressing the DL-26 form, once again isn't it true that you actually added some more to the end of numbers one, two, three and four? A I don't recall that, sir. We would have to watch the tape. Q So you could have added something onto the end? 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A I don't know what you're talking about, but I have no recollection of that. I'm sure the tape will show it. MR. CARACIOLO: No further questions, Your Honor. THE COURT: THE WITNESS: MR. KABUSK: Agent Brandon Mitchem. You may step down. Thank you. The Department calls Booking Whereupon, BRANDON MITCHEM, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. KABUSK: Q Please state your name and spell your last name for the record. A Brandon Mitchem, M-i-t-c-h-e-m. Q And where are you employed? A Cumberland County District Attorney's Office, Central Processing Department. Q During the course of your official duties, have you been involved in the investigation of an alleged incident of DUI on or about June 26, 2004? A Yes, I was. Q Were you the breath test operator involved in 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . the incident? A Yes, I was. Q Are you a certified breath test operator? A Yes, I am. Q What breath test instrument were you using? A The BAC DataMaster. Q At the time of the incident, was the breath test instrument certified as accurate? A Yes. Q Was the instrument properly calibrated? A Yes. Q At the time of the incident at issue was the breath test instrument that was in service for use in this incident functioning properly? A Yes, it was. Q Did the petitioner inform you of any physical or medical conditions that may have prevented him from properly performing the test? A No, he didn't. Q Did the petitioner exhibit any symptoms that would indicate the presence of a physical or medical condition that could have affected his ability to perform the test? A No, he didn't. Q Did the petitioner provide two consecutive 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . adequate breath samples? A No. Q Was a videotape made contemporaneously with the requested breath test? A Yes. Q And you were present when the videotape was made? A Yes, I was. MR. KABUSK: Your Honor, I have the videotape here. It's approximately 20 minutes. We can probably shave a little bit of time off of that in fast forwarding during the period of when he resets the instrument. If I may show this? THE COURT: MR. KABUSK: Yes. Have you marked it? I believe it's been marked Commonwealth Exhibit No.5. (Whereupon, Commonwealth's Exhibit No.5 was marked for identification.) (Whereupon, the videotape was played.) MR. KABUSK: I think there's just a period of time when the instrument is cycling. Would you like me to fast forward? THE COURT: Yes, as long as there is no discussion on it. MR. KABUSK: Your Honor, I think there is. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . (Whereupon, the videotape continued.) MR. KABUSK: There is another period where the instrument's resetting. Should I fast forward? THE COURT: Yes. (Whereupon, the videotape was continued and concluded.) BY MR. KABUSK: Q Agent Mitchem, did that videotape accurately represent the events as they occurred? A Yes, it did. MR. KABUSK: May I approach the witness, Your Honor? THE COURT: Yes. BY MR. KABUSK: Q I'm going to show you what's marked Commonwealth Exhibit No.2. Would you identify that document? A One of the breath test tickets from that night. Q There's two, there's three and there's four. Which breath test was the first one that was given? A 15904. Q And what were the results of that? A Invalid. THE COURT: What time was that? 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . THE WITNESS: 0332 hours. BY MR. KABUSK: Q And what does the entry invalid signify? A That the subject didn't supply a sufficient breath to obtain a sample. Q Would you identify the next breath test that was administered? A That would be number 15905. Q And that's exhibit number? A Three. Q What's the entry on that? A Invalid at 0338 hours. Q And once again, was that insufficient breath? A That's correct. Q And the third breath test that was administered? A Exhibit No. 4 is 15906, and that also was invalid at 0345. Q Thank you. Did the petitioner ever supply the two consecutive adequate breath samples as required? A No. Q During the administration of the tape, you were giving him various instructions, is that correct? A Yes. Q Was he following your instructions? 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A No. Q How so? A He would not keep a tight seal around the mouthpiece, and he wouldn't keep a steady breath, one continuous steady breath going. He would start and stop, start and stop. And how long have you been a breath test Q operator? A Q A Q thousands? A Q On the DataMaster or overall? Overall. Since January of 1997. And have you administered hundreds, Hundreds of breath tests. Have you ever had the occasion where you had someone not follow your instructions? A Yes. Q And what sort of things do those people do? A They won't make tight seals around the mouthpiece or they will not keep a steady breath going. Q So in your estimation, was what he was doing out of the ordinary? A No. I have run into it numerous times. Q And once again, was he following your instructions? 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A No. Q Did you have any other conversations with the petitioner? A Yes, I did. Q What did they involve? A Whenever he first arrived at the center, it was learned that he was from Bosnia, and throughout the discussion he was asked if he knew English. He stated that he did know some English and that he taught English over in Germany. Q He told you that? A Correct. Q And how did you find out that information? A Just through going through our intake procedure where we ask where they're from and all their pedigree information. Q Did he respond to you in English throughout the entire time? A Yes. Q And what did you conclude after the three tests that were administered? A That he would be taken as a refusal. MR. KABUSK: No further questions. THE COURT: Cross-examine. MR. CARACIOLO: Thank you, Your Honor. 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . CROSS EXAMINATION BY MR. CARACIOLO: Q Did you say that that was the BAC DataMaster 5000? A No, it's the BA DataMaster. Q Is there a difference between a 5000 and the DM-1? A The BAC DataMaster we have two of them. One's just sub1isted as DM-1 and one's sub1isted as DM-2. That way we can tell them apart. Q Okay. The exact model that you were using there was the DM-1, right? A It's the same model. Q Well, the exact machine that you were using. A Yes, the DM-1, correct. Q Have you ever had any problems with that machine in the past? A It's probably been out of service. I don't recall without seeing all of the records from it. Q Do you recall when it was last taken out of service? A No, I don't. Q Have you ever had to take it out of service for any reason? A I don't recall. I may have. 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Have you ever had anyone that did not speak English take one of the tests? A Yes. Q And is there some type of protocol that you normally follow? A We try and get an interpreter. Q And what does that entail? A Either contacting somebody through the county communications center or we have a little pamphlet down in the booking center that has different numbers that we can call. Q And what do the numbers represent? Do they represent languages? A No, phone numbers to call. Q And what are you calling for? Are you calling for an interpreter? A Correct. Q Was there an interpreter that spoke Bosnian -- excuse me, Serbo-Croatian? A I don't recall because I didn't get involved in that that night. Q But you're not aware if there's an interpreter that speaks Serbian? A No, I have no idea. Q You said that not following instructions is 37 1 2 3 4 5 6 7 . . something that you commonly see, is that correct? A Yes. Q Could not following instructions also indicate that the person did not understand the instructions? A That's possible. Q Because if someone doesn't understand the 8 instructions, isn't it true that they wouldn't be able to 9 follow it the way you want them to? 10 A That's possible. 11 Q Did you have to sort of coddle this 12 defendant? Did you have to read him the instructions more 13 than one time or in a sing-songy voice? 14 A Other than what you saw on the videotape, I 15 mean, that's basically what I did, and that's what I do with 16 all people that don't follow my instructions. 17 Q Have you ever witnessed Officer Hutcheson 18 read the implied consent to a person before? 19 A Yes. 20 Q In your opinion, did he read the implied 21 consent to the defendant in a different way than he reads it 22 to other people? 23 A Not that I recall. 24 Q In your opinion, did he read it in a 25 sing-songy voice? 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A From what I recall, that's the way he reads it to everybody. Q And does he read to everyone something in the end in addition to what the implied consent reads like we saw on the videotape? A I don't know what you would be referring. Q After the officer read the implied consent he said, are you going to submit, will you submit, will you blow, say yes louder, louder, please, please say yes. Does he say that to every defendant? A Well, once he's finished with the actual DL-26 itself he asks everybody if they're going to submit to the test. Q Does he do it in the same way that he asked this particular individual? A I don't recall. MR. CARACIOLO: I have no further questions, Your Honor. MR. KABUSK: No further questions, Your Honor. THE COURT: MR. KABUSK: THE COURT: MR. KABUSK: You may step down. One question. You have one question? Yeah. 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . REDIRECT EXAMINATION BY MR. KABUSK: Q Did you believe that the petitioner was understanding what you told him? A Yes, I did. MR. KABUSK: THE COURT: MR. KABUSK: No further questions. You may step down. That is the Department's case, Your Honor. I move for the admission of what's been marked Commonwealth's No.1 through 5. MR. CARACIOLO: No objection, Your Honor. THE COURT: Admitted. MR. KABUSK: And reserve the right to recall the Department's witnesses. THE COURT: Defendant. MR. CARACIOLO: Your Honor, I would like to call Blanka Zborsky to the stand. Whereupon, BLANKA ZBORSKY, having been duly sworn, testified as follows: MR. KABUSK: Could I have an offer of proof, Your Honor, for the relevance of the interpreter testifying. MR. CARACIOLO: Yes, Your Honor. Blanka has known Ivo for his entire life. She will be able to testify to some of the education that she has witnessed him 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . experience. She will be able to testify to some of thB things that he's learned in the past. He will also be taking the stand afterwards to verify some of this information. THE COURT: I will let her testify. How do you spell your name, ma'am? THE WITNESS: Blanka, B-l-a-n-k-a, Zborsky, Z-like a Zebra-b-o-r-s-k-y. DIRECT EXAMINATION BY MR. CARACIOLO: Q Blanka, what's your relationship to Ivo Martinovic? A I'm brother -- I'm sister to Ivo. He's my brother. Q And where were you born? A I'm born in Bosnia and Herzegovina. Q And where was Ivo born? A He's born in Bosnia and Herzegovina also, former Yugoslavia. Q And did you learn English in Bosnia Herzegovina? A No, I didn't. Q And to your knowledge did Ivo learn Enqlish in Bosnia Herzegovina? A No, he didn't. 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Why did you leave Bosnia Herzegovina? A Because we have a war, it was big conflict. Q And when did you leave? A I left 1996. Q And when did Ivo leave? A He came in the United States 1997. Q And while Ivo was there, did he have any experience with the current government or law enforcement? A Yes, he did. Q Can you tell me a little bit about that experience he may have had? A Everybody know how bad war was in Bosnia, and he was tortured from Muslim people over there. Five soldiers took him over there and put him in the woods and asking him do you want me to cut your nose or ears, and he was tooken from his house. He had a big, nice, beautiful house, a big, huge, old bricks. And he's electrician. He was supervisor. He had a qood job and 20 years experience like I also, but I don't have job riqht now. I have little boy. So, yes, he did. He was tortured and he have a bad experience. Q Is that why he came to the United States? A Yes. Q When he came to the United States, did he learn Enqlish? 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A He try. I think that's hard for him. Some people can't learn. I don't know. Q Tell me how he tried. A He have a couple hours in. I also go to that school that the Catholic Charities provides, and Tressler Lutheran Service provide a free English classes nighttime. So if you able to go, if you don't work nighttime, you can go like two times in the week for free. He try a couple times, but he was really below everybody, a really low level, and teacher said he cannot catch up to other people so he stop. Q Do you regularly have to translate for him? A Oh, yeah. I used to live in New Cumberland, and two years ago we move in Johnstown because my husband is in military. He's an instructor of Devon Gap, and, yeah, I even wrote a check for him and pay his bills and everything. Q And does he have any does he have any jobs while he was in the United States? A Yeah, he had actually good job. He was electrician, but two times the man who owned the company and he hire him but he say he cannot take him anymore because he don't speak English. He's good worker. He's good person and he's nice and polite, but he do not understand Enqlish to work that job. I mean, he work but not Q Is Ivo currently workinq? 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Q A Q Pardon me. Is Ivo currently working? Yes. And where he works now does he need to speak Enqlish? A Q No. What does he do? A He work in warehouse. Q A warehouse? A Yes. Q And does he often work at jobs where other people speak his languaqe? A Yeah, yeah. MR. CARACIOLO: Your Honor, I have no further questions for this witness. CROSS EXAMINATION BY MR. KABUSK: Q You stated that Ivo came here in, what, 1997? A Yes, I thinks. I think so. A year after I come he come. Q And has he lived here consistently since 1997? A Yes. Q So that's approximately eight years he's been in the United States? 44 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q A Q A Q A now. Q A Q Pennsylvania? A Q A Q been here? A Q A Three and five, eight, yeah, that's right. And has he lived in Pennsylvania? Yes. He live in New Cumberland all the time. And you stated he is now working? Yes. And what type of work is he doing now? Labor in warehouse. How long has he been doinq that? Oh, he work for months in this company right How did he obtain that job? My brother-in-law work there. And what prior work did he do while in Yes. What sort of work did he do? Labor, warehouse. So he's been working consistently since he's Yes. But he's also worked as an electrician? Yeah, he work like electrician a couple I don't keep track of that. Q Do you know all of the people that employed months. him? 45 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Most of them, not all of them. Q Were they friends or relatives of yours? A No. Q Could they all speak Bosnian? A No. Q But he was able to work in those jobs even though the employer couldn't speak Bosnian? Warehouse work, I mean, you can pull and A work. Q A Q A just go there And are you there with him all the time? Oh, yeah, I try to translate every time. While he's at work? No, not at I don't work for warehouse. I and translate and explain to him what he's supposed to do. And, I mean, other people, Bosnian people, don't speak -- most of them doesn't speak English either. We learn. We try. Q And he's had a driver's license? A Yes. Q And do you know how long he's had that? A I believe first year when he came he get a driver license. He had a translator to take driver MR. KABUSK: No further questions. MR. CARACIOLO: Your Honor, I have some license. 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . redirect. REDIRECT EXAMINATION BY MR. CARACIOLO: Q You said that he's lived and worked in Pennsylvania. Does he have other family that lives here? A My younger sister and her family, yes. Q So there are other people that also interpret for him, correct? A Oh, yeah. Q And at his job in the warehouse there are people that speak his language, correct? A Yes. Q So even though the employers may not speak Bosnian or Serbo-Croatian there are people there? A Yes, yes. Q And I just wanted to clarify, when he had his driver's license -- when he took his test, there was a translator there for him, is that correct? A Correct. MR. CARACIOLO: No further questions, Your Honor. THE COURT: MR. KABUSK: THE COURT: Anything else? No. I want to be sure I got the riqht name of the language here. Is it Bosnian or Serbo-Croatian? 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . THE WITNESS: I call it Serbo-Croatian because Bosnian language doesn't exist. The Bosnian people -- I mean, you were Bosnian paid for country make Bosnian language now by Serbo-Croatian. I mean, he speak some 1anguaqe, a little bit like dialect, but it's sad. We can understand each other. THE COURT: You may step down. THE WITNESS: Thank you. MR. CARACIOLO: Your Honor, at this time I would like to call Ivo Martinovic to the stand. I would ask that Blanka be allowed to accompany him to translate. THE COURT: You may. Whereupon, IVO MARTINOVIC, having been duly sworn, testified through a Serbo-Croatian speaking interpreter as follows: MR. KABUSK: I didn't hear a response. THE COURT: He said yes. DIRECT EXAMINATION BY MR. CARACIOLO: Q Ivo, could you state your name and spell it for the record. A Ivo Martinovic. He say he don't know how to spell. I can spell for you. I-v-o, M-a-r-t-i-n-o-v-i-c. Q Ivo, do you understand the English lanquaqe? 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A He said very little. I do not understand English. Q What languaqe do you speak? A Serbo-Croatian. I speak Serbo-Croatian. Q Did you ever learn any Enqlish? A He said no. He speak German in school. Q Where were you born? A In Bosnia. Q Did they teach you any English in Bosnia? A No. Q Ivo, I'm qoing to direct you to June 26, 2004. A Excuse me, what year? Q 2004. Do you remember beinq arrested for DUI that day? A He remember. Q And do you remember an officer readinq somethinq to you? A I do remember he was reading, but I didn't understand nothing. Q Do you remember taking a breath test? A He do remember. Q And why did you take that breath test? A He say he thouqht it because alcohol. He do remember. He assume. 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Ivo, in your experience, do you follow what the authorities tell you to do? A He say I didn't understand nothing, but I was tryinq to figure out what he's asking me with his hands and -- he didn't understand he said. Q Were you doing what he told you, what you thouqht he told you to do? A He say I was tryinq to do my best how I can understand. Q Ivo, how long have you lived in Bosnia? A He say 45 year. He's trying to count how old he is. THE COURT: How old are you now? THE WITNESS: Fifty-two. BY MR. CARACIOLO: Q And in Bosnia what happens when you do not listen to the authorities? A He don't understand the question. What do you mean? Are you askinq when it was war or before that? THE COURT: Ask the question again. BY MR. CARACIOLO: Q In Bosnia, what happens when you do not follow what the authorities tell you to do? A He said the same, if you arrested for whatever, drivinq or whatever, he thinks he's goinq to be 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 . . set. Q And did any officer ever pull a firearm or gun on you, a weapon? A In Bosnia? Q No, here. I'm sorry. A Yeah. Yes, this officer pulled a pistol on him and he was scared. He was tryin'l to get his gun. Q Ivo, when you were pulled over, why did you 'let out of your vehicle? A He said his window doesn't work because car is automatic, and he try to open his door to see what officer want from him. And he was far away from him, and he said he was behind him. He was far away. MR. CARACIOLO: Your Honor, I have no further questions for this witness. CROSS EXAMINATION 17 BY MR. KABUSK: 18 Q Mr. Martinovic, how lonq have you lived in 19 Pennsylvania? 20 A Eight years. 21 Q What is your occupation? 22 23 24 25 A Q Worker he said. And did you obtain a Pennsylvania driver's license? A Yes. 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q And do you recall being stopped by Officer Hutcheson on June 26, 2004? A Yes. Q And do you recall tellin'l the officer that you were fishing at the river? A He said he probably misunderstood me because what is the reason fish at 3:00 after midnight. Because I don't speak English maybe he didn't understood. Q Did he tell the officer that he was fishinq? A He say he don't remember. Q Did he tell the officer -- THE COURT: Wait. Wait. THE WITNESS: He said I have -- he have too many, I don't know how to call it, fishinq rope, fishing rods in his car. He have so many and he still have in his car. BY MR. KABUSK: Q Did he tell the officer he lived with his sister? A No, he said he didn't say. He was askin'l to call his sister. Q Does he recall bein'l asked for his driver's license, reqistration and insurance? A Yes, he did ask him, but he said even if I do not understand if a police officer stop you you 'lot to show 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . your driving license. He know that even from -- he know that he said. Q So does he recall beinq asked for his driver's license? A Yes, he ask him. Q Does he recall beinq arrested for drivin'l under the influence? A Can you Q Does he recall bein'l told that he was arrested for driving while under the influence of alcohol? A I don't know what THE COURT: You don't know what arrest is? What don't you know? THE INTERPRETER: I know what is arrest, but what is recall? MR. KABUSK: Do you recall? Does he remember -- THE INTERPRETER: Oh, remember. Okay. I'm sorry. THE COURT: Does he remember being arrested? THE WITNESS: Oh, yes, he said. Oh, yes. He remember both faces. BY MR. KABUSK: Q And was he drinkin'l prior to when he was stopped? Had he been drinking? Had you been drinkinq that 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . before you were stopped? MR. CARACIOLO: I'm qoing to object to that question, Your Honor. THE COURT: Overruled. THE WITNESS: He say, yes, he did. He drink two beer, one, two beer. Yes, he did. BY MR. KABUSK: Q And does he remember being requested to submit to various tests at the site of the stop? A He said, yes, he saw police officer, but he didn't stop because he didn't realize he want him to stop, that he want him to stop. He say I start a little bit and I stop after that. I realize he want me to stop. Q Does he recall performinq a walk-and-turn test? A Yes, he did. Q Does he recall being taken to the booking center? A Excuse me? Q Does he recall bein'l taken to the booking center? A Yes, he do remember. Q Does he recall being requested to blow into an instrument? A Yes, he do remember. 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Did he indeed blow into the instrument? A Yes, he did blow. Q Did you understand what you were beinq requested to do? In other words, do you understand you were requested to blow into the instrument? A He say he understand he need to blow but really instruction he didn't know. Q Does he understand the word stop in English? A Yeah, he say yes he do because it's same word like my lan'luage, stop. Actually it's a little bit different. Q Does he recall conversing, speaking Enqlish, to the officer and to the booking agent? A Do he remember? Q Does he recall any words of Enqlish either to the officer or to the booking agent? A He say he trying to ask for translator and qive the number to somebody call me or somebody. Q While in the United States he took some English classes, correct, you took some English classes? A He said one time he go to that one hour. Q And then do you recall telling the bookinq a'lent that you did know En'l1ish or you knew some En'llish? A He said how am I 'loing to say that? I don't speak English. He say if I know English I work. I do my 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . job like electrician for $30.00. Q Does he recall telling the booking agent that he actually taught English while in Germany? A He said, no, that's wrong. He didn't say to nobody. Q Did you try with a good faith effort to provide a satisfactory breath sample? A Yes, I did how much I can understand. Q Do you recall being told that that was a refusal to submit, that his performance of the test was considered a refusal? THE INTERPRETER: That's trouble for me to translate. THE COURT: Reword it. See if you can reword it. THE INTERPRETER: I'm sorry. BY MR. KABUSK: Q Did the officers tell you you did not comply with the request? A He say he don't know nothinq. He didn't understand. MR. KABUSK: No further questions. THE COURT: Anythin'l else? MR. CARACIOLO: Nothinq else. THE COURT: You may step down. Anythin'l 56 . . 1 else? 2 MR. CARACIOLO: No further testimony, Your 3 Honor. 4 THE COURT: You rest? 5 MR. CARACIOLO: Yes, Your Honor. 6 THE COURT: Anything else, Commonwealth? 7 MR. KABUSK: No, Your Honor. 8 THE COURT: Off the record. 9 (Whereupon, argument was held off the 10 record.) 11 THE COURT: I understand. Well presented, 12 qentlemen. You did a nice job translatinq. Tell your 13 client I will have somethin'l down in a few days. Thank you. 14 (Whereupon, the hearing was concluded 15 at 3:37 p.m.) 16 17 18 19 20 21 22 23 24 25 57 . 1 CERTIFICATION 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. 6 7 8 9 10 11 12 ') 1<- /' c~ . \ "-'._\, c\~ k. . Pamela R. Sheaffer Official Court Reporter )\ " \ I ------------------------------ The foregoing record of the proceedings on directed to be filed. 13 the hearin'l of the within matte~,is 14 15 16 17 18 19 20 21 22 23 24 25 / / / Edgar B. Bayley, J. Ninth Judicial Distri~ 58 .--..' -'. .l\ -- ---------------- --- IN THE COMMONWEALTH COURT OF PENNSYLVANIA v. : ~D L(~ 4<i;<.f, : No. 406 C.D. 2005 : Submitted: July 22, 2005 Ivo Martinovic Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge OPINION BY JUDGE PELLEGRINI FILED: August 17,2005 The Department of Transportation, Bureau of Driver Licensing (Bureau) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) sustaining the statutory appeal of Ivo Martinovic (Licensee) from a one-year license suspension issued by the Department for refusing to submit to chemical testing pursuant to Pennsylvania's Implied Consent Law (Implied Consent Law).! :';..;-"". On or about 3:00 a.m. on June 26, 2004, Licensee was arrested for driving under the influence of alcohol. By official notice dated September 6, 2004, the Bureau notified Licensee that his operating privilege was being suspended for a ! Pennsylvania's "Implied Consent Law," 75 Pa. C.S. 91547(b), provides generally that when a licensee is placed under arrest for driving under the influence (DUI) and is asked to submit to a chemical test, a refusal to submit to the test will result in a l2-month license suspension. period of one year, effective October 11, 2004, for failing to submit to a chemical test on June 26, 2004 in violation of Section 1547 of the Vehicle Code, 75 Pa. C.S. S1547. On September 27, Licensee appealed that determination to the trial court. At the de novo hearing, counsel for Licensee requested that Licensee's sister translate for Licensee because he spoke Serbo-Croatian and did not speak or understand English. The Bureau then called Officer Timothy Hutcheson (Officer Hutcheson), who testified that on June 26, 2004, he was on duty when he timed Licensee's van traveling 44 mph in a 25 mph zone. Officer Hutcheson testified that after turning on his lights and siren to stop the van, Licensee pulled over and exited the vehicle. After three warnings to get back into the van, Officer Hutcheson drew his weapon and ordered Licensee back into the car, and Licensee complied. Officer Hutcheson then asked Licensee for his license, registration, and proof of insurance. Officer Hutcheson stated that Licensee's eyes were red and glassy, that he detected alcohol on Licensee's breath, and in the course of his questioning, Officer Hutcheson noticed that Licensee's "broken English was slurred." (Reproduced Record at 19a). Officer Hutcheson asked Licensee where he was coming from, and Licensee stated that he was fishing down at the river. When asked whether he had been drinking, Licensee said he had not. Officer Hutcheson then asked Licensee to perform standard field sobriety tests, and Licensee agreed. Additionally, Officer Hutcheson testified that he asked where Licensee lived, and Licensee responded that he lived with his sister; he asked Licensee if the address on the license was correct, and Licensee responded "yes"; he asked whether Licensee understood each sobriety test that Officer Hutcheson asked him to perform (by demonstrating each and talking Licensee through each test), and Licensee responded 2 "yes." Officer Hutcheson testified that Licensee unsatisfactorily performed the field sobriety tests. Officer Hutcheson also administered a pre-arrest breath test,2 which indicated that Licensee was under the influence of alcohol. Thereafter, Officer Hutcheson arrested Licensee for driving under the influence pursuant to Section 3802(a)(I) of the Vehicle Code, 75 Pa. C.S. s3802(a)(1).3 Officer Hutcheson testified that Licensee cooperated with the arrest. 2 Section I 547(k) provides as follows: (k) Prearrest breath test authorized.--A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e). 75 Pa. C.S. 91547(k). 3 That section provides as follows: (a) General impairment.-- (1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. 75 Pa. C.S. 93802(a)(1). 3 Officer Hutcheson further testified that he took Licensee to the booking center and read him his O'Connell warnings.4 The reading was taped. He testified that he asked Licensee to submit to chemical testing, and Officer Hutcheson testified that Licensee said "yes." As summarized by the trial court, the videotape showed the colloquy between Officer Hutcheson and Licensee as follows: While being videotaped, Officer Hutcheson read Implied Consent warnings to [Licensee]. He then said, "Will you submit to a chemical test of your breath. Will you blow into that machine?" [Licensee] looked at the machine. Hutcheson then blew into his hands and said, "blow into that machine-will you do that?" [Licensee] shook his head. Hutcheson said, "Will you do that?" [Licensee] shook his head and mumbled something. Hutcheson said, "Will you say it loud - yes - louder - yes - are you going to do it?" [Licensee] mumbled something, blew into his hands, shrugged his shoulders, and mumbled some more. Hutcheson said, "Yes or no." [Licensee] mumbled something that is not decipherable on the videotape. Hutcheson said, "That's a yes." The booking agent agreed. (Trial Court Opinion at 2). Officer Hutcheson testified that he and another booking agent explained in English how to take the chemical test and also showed him how to blow into the mouthpiece by demonstrating. Officer Hutcheson then observed Licensee attempt to blow into the mouthpiece three times; each attempt was unsuccessful. 4 See Department of Transportation, Bureau of Traffic Safety v. 0 'Connell, 521 Pa. 242, 555 A.2d 873 (1989) (requiring officers requesting chemical testing of licensees arrested for DOl to advise licensees that Miranda rights to counsel do not apply under the Implied Consent Law). 4 On cross-examination, Officer Hutcheson testified that there is no protocol that he follows if someone suspected of driving under the influence does not speak English, and he reads warnings only in English. He also testified that he does not stop to determine whether the driver understands English, stating that "[i]fI went through the whole thing like I did with [Licensee] and they did not understand, I would ask for an interpreter like I did, but there wasn't one available." (Reproduced Record at 30a). Officer Hutcheson also stated that he knew Licensee knew what the officers were saying and that he asked for an interpreter to "cover all [his] bases." Id. Officer Hutcheson stated that he got the impression that Licensee knew and understood every word he was saying from the vehicle stop to the chemical test. The Bureau also called Booking Agent Brandon Mitchem (Agent Mitchem), a certified breath test operator. It was Agent Mitchem's understanding that Licensee spoke English and actually taught English in Germany before coming to the United States. Agent Mitchem testified that he gave Licensee three opportunities to perform the breath test, but each opportunity yielded an insufficient amount of air into the machine despite the agent's repeated instructions and physical demonstrations about forming a tight seal around the mouthpiece and blowing continuously into the machine. Agent Mitchem testified that he wrote Licensee up as refusing to submit to the chemical testing based on the three unsuccessful attempts to retrieve a sample.s S A licensee's failure to provide a sufficient breath to complete a breathalyzer test constitutes a refusal, whether or not licensee made good faith effort to supply sufficient breath. Department of Transportation. Bureau of Driver Licensing. v. Morris, 621 A.2d 1170 (Pa. Cmwlth.1993). 5 Licensee presented the testimony of his sister Blanka Zborsky (Zborsky), who testified that both she and her brother were born in Bosnia, Herzegovina. She testified that Licensee attempted to learn to speak English, but he had been unable to do so. She stated that she acts as a translator for him. She also testified that Licensee was an electrician and had a good job in this country but lost it because he did not speak English. Zborsky testified that Licensee now works at a warehouse where he does not need to speak English. She also stated that Licensee was able to obtain a driver's license because he had a translator when he took the test. Licensee testified through his translator that he is 52 and does not speak English and has never learned to do so, taking lessons in the past but ultimately quitting. He stated that he speaks Serbo-Croatian and spoke some German while in school; he was confused why Agent Mitchem stated that he actually taught English while in Germany. He testified that he recalled the arrest for DUI, the officer reading something to him, and taking a breath test. Licensee stated that he did not understand anything the officers were saying to him but he was trying to figure out what they were asking him with to do with his hands. Licensee also clarified that he exited the vehicle at the traffic stop because his window did not work and he opened the door to see what Officer Hutcheson wanted. On cross-examination, Licensee testified that Officer Hutcheson misunderstood him because he was not fishing at 3 :00 a.m., and he did not tell the officer that he lived with his sister but wanted to call her. Licensee stated that he drank one or two beers that night and that he understood that he needed to blow into the breathalyzer. 6 Accepting the testimony of Licensee and Zborsky as credible, and based on the videotape, the trial court held that Licensee met his burden of proving that he did not speak or understand English sufficiently to have possibly understood the 0 'Connell warnings. The trial court reasoned that while Licensee answered "yes" to many questions posed by Officer Hutcheson and Agent Mitchem, it did not matter because he spoke and understood virtually no English. Finally, the trial court found that because Licensee did not understand English, Officer Hutcheson did not adequately warn him that his license would be suspended if he refused to take the test. Accordingly, the trial court sustained Licensee's appeal and reversed the one- year suspension issued by the Department. This appeal followed.6 The fundamental argument the Department poses is that the trial court erred as a matter of law by holding that Licensee satisfied his burden of proving that his language barrier prevented a knowing and conscious refusal to submit to chemical testing. To issue a one-year suspension of Licensee's operating privilege under Section 1547(b)(I) of the Vehicle Code, the Department has the burden of proving that (1) Licensee was arrested for violating Section 3802 of the Vehicle Code by a police officer who had "reasonable grounds to believe" that Licensee was operating or was in actual physical control of the movement of a vehicle while in 6 Our scope of review of a license suspension case under the Implied Consent Law is limited to determining whether necessary findings of the trial court are supported by substantial evidence and whether the trial court committed an error of law or abused its discretion. Mueller v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa. Cmwlth.), petition for allowance of appeal denied, 542 Pa. 637, 665 A.2d 471 (1995). Whether a licensee refuses to submit to chemical testing is a question of law for this Court's review. Stump v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 664 A.2d 1102 (Pa. Cmwlth. 1995). 7 violation of Section 3802 (i.e., while driving under the influence); (2) Licensee was asked to submit to a chemical test; (3) Licensee refused to do so; and (4) Licensee was specifically warned that a refusal would result in the suspension of his operating privileges and would result in enhanced penalties if he was later convicted of violating Section 3802(a)(I). Once that burden is met, the licensee has the burden to prove that (1) he was physically incapable of completing the breath test or (2) his refusal was not knowing and conscious. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997). Because Licensee agrees that the Department satisfied its burden, the sole issue is whether Licensee met his burden of proving that his refusal (i.e., his failure to register a sufficient breath sample) was not knowing and conscious. Although some circumstances such as a language barrier might affect a licensee's ability to make a knowing and conscious refusal, see, e.g., Department of Transportation, Bureau of Motor Vehicles v. Kyong Rok Yi, 562 A.2d 1008 (Pa. Cmwlth. 1989) (upholding a finding by the trial court that licensee's inability to understand English prevented a knowing and conscious refusal), most cases hold that a failure to understand English provides no foundation for an argument that the licensee was unable to make a knowing and conscious refusal. See Balthazar v. Department of Transportation, Bureau of Driver Licensing, 553 A.2d 1053 (Pa. Cmwlth. 1989), appeal denied, 525 Pa. 586, 575 A.2d 116 (1990); 1m v. Commonwealth Department of Transportation, 529 A.2d 94 (Pa. Cmwlth. 1987).7 7 In Balthazar, for example, the licensee's testimony before the trial court consisted of approximately seven pages of transcript without the assistance of interpreters, and there was never any indication in that the licensee had any difficulty comprehending the questions addressed to him. The licensee in that case also responded to officers at the traffic stop in English and even used foul language in English directed toward the officers. Similarly, in 1m, a motorist failed to (Footnote continued on next page...) 8 Although the trial court found that Licensee did not speak English sufficiently to have possibly understood the 0 'Connell warnings, whether Licensee understands the O'Connell warnings or not is inconsequential. An officer's sole duty is to inform motorists of the implied consent warnings; once they have done so, they have satisfied their obligation. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). Additionally, and not without significance in this case, officers have no duty to make sure that licensees understand the 0 'Connell warnings or the consequences of refusing a chemical test. As our Superior Court has stated: The implied consent law contained in Section 1547 of the Vehicle Code states that "[i]t shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing." 75 Pa. C.S. SI547(b)(2). The implied consent law imposes the duty upon the officer only to apprise the motorist of the consequences of a refusal to take the breath test. No where does the law require the officer to make certain that the motorist understands that he could exercise a right to refuse a breathalyzer test[.] Commonwealth v. Mordan, 615 A.2d 102, 108-09 (Pa. Super. Ct. 1992). It is equally not the officer's duty to enlist the assistance of an interpreter to make sure a motorist understands implied consent warnings. See, e.g., Commonwealth v. (continued...) show that he was unable to make a knowing and conscious refusal based on a language barrier simply because he did not understand the warnings. The licensee responded to questions in court, unassisted by an interpreter. He also spoke to the arresting officer several times without any problems. In both cases, we held that the language barrier presented in those cases did not prevent the licensees from making knowing and conscious refusals to submit to chemical testing. 9 Robinson, 834 A.2d 1160, 1164 (Pa. Super. Ct. 2003) ("Requiring certified interpreters for every driver who may have difficulty understanding a police officer, whether due to a hearing impairment, language barrier or learning disability, is not only not required by the implied consent law, it is simply not feasible, particularly in the case ofDUI investigations where temporal concerns are paramount.") (emphasis added). Second, although the trial court concluded that because Licensee lacked an understanding of the English language, Officer Hutcheson did not adequately warn him that his license would be suspended ifhe refused the test, Licensee did not "refuse" the test in the ordinary sense of the word, such as explicitly saying "no" to a request to submit to chemical testing or saying anything short of "yes, I will take the test." Instead, the refusal in this case is predicated on the fact that Licensee agreed to take the test and attempted three different times to register a breath sample butfailed to do so, which is deemed a refusal despite the good faith attempts of the licensee. Supra note 5. Accordingly, Licensee had the burden of proving that something impeded him from making a knowing and conscious failure to register a proper breath sample. However, Licensee made no attempt to establish that he was unable to complete the test because he did not understand what to do, only that he did not understand English. The record (including the videotape) reveals that Licensee took the breathalyzer test based on the physical demonstrations from Agent Mitchem; and Agent Mitchem physically demonstrated to blow harder into the breathalyzer and make a seal with his lips after each failed attempt. Licensee attempted to follow Agent Mitchem's instructions each time. Based on these facts, Licensee could not have met his burden of proving that his limited understanding of English prevented him from making a knowing and conscious refusal. 10 In any event, whether Licensee fails to understand English is not automatically outcome determinative. As Balthazar, 1m, and Robinson demonstrate, simply because Licensee spoke Serbo-Croatian and did not speak English does not mean that he cannot act knowingly and consciously. When motorists are unconscious from drinking, thereby allegedly preventing them from "consciously" refusing the test, we still hold that those motorists "consciously" refused the test absent some other verifiable impediment. Department of Transportation, Bureau of Traffic Safety v. Potter, 545 A.2d 979 (Pa. Cmwlth. 1988). The same is true for language barriers; when motorists are limited by their understanding of the English language, thereby allegedly preventing them from "knowingly" refusing the test, we still hold that those motorists "knowingly" refused the test absent some other verifiable impediment. 1m; Balthazar. Otherwise, anyone who speaks little to no English can automatically claim that he or she did not understand the 0 'Connell warnings and avoid the consequences of refusing a chemical test, just as anyone who is drunk could automatically claim that he or she was too drunk to understand the 0 'Connell warnings and avoid the consequences of refusing a chemical test. 8 8 We also note that while the trial court concluded that Licensee spoke virtually no English and that his inability to speak or understand English prevented him from making a knowing and conscious refusal to submit to chemical testing, it is clear that Licensee answered all of Officer Hutcheson's questions regarding the vehicle stop, the sobriety tests, and the chemical testing. Licensee even answered "yes" on many occasions when asked if he understood what he was being told, and he never communicated-verbally or otherwise-to either Officer Hutcheson or Agent Mitchem that he did not understand what they were telling him regarding the chemical test. Moreover, Officer Hutcheson and Agent Mitchem testified that they had no doubt that Licensee understood what they asked of him because of his response to their questions. Most telling of Licensee's understanding of the O'Connell warnings and the instructions on giving breath samples is the fact that he actually took the chemical test three different times, albeit ultimately yielding insufficient samples. In short, Licensee understood quite enough to make a knowing and conscious refusal of the chemical test despite his limited understanding of the English language. 11 For these reasons, the order of the trial court is reversed. ~).-?~~ DAN PELLEGRINI UDGE Judge Simpson concurs in the result only. 12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ivo Martinovic v. : No. 406 C.D. 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 17th day of August, 2005, the order of the trial court in the above-captioned matter is reversed. ~?~ DAN PELLEG , JUDGE ee..... ""Ied from the ReoonJ ~172005 811dOltterExft , c;. :;"1 ':::""": -c ...... ~ .' <,) -' q.. 9-;!} 'f1,"'\r.... ~lb :.0 "_'j C)\(:'~il. ~,- .-1) ~-<;;'r, \cT '-f!, .-\ <~ 'g .~ o ~,~. ," ,...' ~ ,f" - c.: G' .- cP " IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ivo Martinovic v. : No. 406 C.D. 2005 : Submitted: July 22, 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant 4- Ql--l-- Lf ~ Lf, ~ BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge OPINION BY JUDGE PELLEGRINI FILED: August 17, 2005 The Department of Transportation, Bureau of Driver Licensing (Bureau) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) sustaining the statutory appeal of Ivo Martinovic (Licensee) from a one-year license suspension issued by the Department for refusing to submit to chemical testing pursuant to Pennsylvania's Implied Consent Law (Implied Consent LawV On or about 3 :00 a.m. on June 26, 2004, Licensee was arrested for driving under the influence of alcohol. By official notice dated September 6, 2004, the Bureau notified Licensee that his operating privilege was being suspended for a ! Pennsylvania's "Implied Consent Law," 75 Pa. C.S. gI547(b), provides generally that when a licensee is placed under arrest for driving under the influence (DUI) and is asked to submit to a chemical test, a refusal to submit to the test will result in a 12-month license suspension. period of one year, effective October 11, 2004, for failing to submit to a chemical test on June 26, 2004 in violation of Section 1547 of the Vehicle Code, 75 Pa. C.S. S1547. On September 27, Licensee appealed that determination to the trial court. At the de novo hearing, counsel for Licensee requested that Licensee's sister translate for Licensee because he spoke Serbo-Croatian and did not speak or understand English. The Bureau then called Officer Timothy Hutcheson (Officer Hutcheson), who testified that on June 26, 2004, he was on duty when he timed Licensee's van traveling 44 mph in a 25 mph zone. Officer Hutcheson testified that after turning on his lights and siren to stop the van, Licensee pulled over and exited the vehicle. After three warnings to get back into the van, Officer Hutcheson drew his weapon and ordered Licensee back into the car, and Licensee complied. Officer Hutcheson then asked Licensee for his license, registration, and proof of insurance. Officer Hutcheson stated that Licensee's eyes were red and glassy, that he detected alcohol on Licensee's breath, and in the course of his questioning, Officer Hutcheson noticed that Licensee's "broken English was slurred." (Reproduced Record at 19a). Officer Hutcheson asked Licensee where he was coming from, and Licensee stated that he was fishing down at the river. When asked whether he had been drinking, Licensee said he had not. Officer Hutcheson then asked Licensee to perform standard field sobriety tests, and Licensee agreed. Additionally, Officer Hutcheson testified that he asked where Licensee lived, and Licensee responded that he lived with his sister; he asked Licensee if the address on the license was correct, and Licensee responded "yes"; he asked whether Licensee understood each sobriety test that Officer Hutcheson asked him to perform (by demonstrating each and talking Licensee through each test), and Licensee responded 2 "yes." Officer Hutcheson testified that Licensee unsatisfactorily performed the field sobriety tests. Officer Hutcheson also administered a pre-arrest breath test,2 which indicated that Licensee was under the influence of alcohol. Thereafter, Officer Hutcheson arrested Licensee for driving under the influence pursuant to Section 3802(a)(1) of the Vehicle Code, 75 Pa. C.S. s3802(a)(1).3 Officer Hutcheson testified that Licensee cooperated with the arrest. 2 Section I 547(k) provides as follows: (k) Prearrest breath test authorized.--A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest. The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e). 75 Pa. C.S. gI547(k). 3 That section provides as follows: (a) General impairment.-- (1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. 75 Pa. C.S. g3802(a)(l). 3 Officer Hutcheson further testified that he took Licensee to the booking center and read him his 0 'Connell wamings.4 The reading was taped. He testified that he asked Licensee to submit to chemical testing, and Officer Hutcheson testified that Licensee said "yes." As summarized by the trial court, the videotape showed the colloquy between Officer Hutcheson and Licensee as follows: While being videotaped, Officer Hutcheson read Implied Consent warnings to [Licensee]. He then said, "Will you submit to a chemical test of your breath. Will you blow into that machine?" [Licensee] looked at the machine. Hutcheson then blew into his hands and said, "blow into that machine-will you do that?" [Licensee] shook his head. Hutcheson said, "Will you do that?" [Licensee] shook his head and mumbled something. Hutcheson said, "Will you say it loud - yes - louder - yes - are you going to do it?" [Licensee] mumbled something, blew into his hands, shrugged his shoulders, and mumbled some more. Hutcheson said, "Yes or no." [Licensee] mumbled something that is not decipherable on the videotape. Hutcheson said, "That's a yes." The booking agent agreed. (Trial Court Opinion at 2). Officer Hutcheson testified that he and another booking agent explained in English how to take the chemical test and also showed him how to blow into the mouthpiece by demonstrating. Officer Hutcheson then observed Licensee attempt to blow into the mouthpiece three times; each attempt was unsuccessful. 4 See Department of Transportation, Bureau of Traffic Safety v. 0 'Connell, 521 Pa. 242, 555 A.2d 873 (1989) (requiring officers requesting chemical testing of licensees arrested for DUl to advise licensees that Miranda rights to counsel do not apply under the Implied Consent Law). 4 , On cross-examination, Officer Hutcheson testified that there is no protocol that he follows if someone suspected of driving under the influence does not speak English, and he reads warnings only in English. He also testified that he does not stop to determine whether the driver understands English, stating that "[i]fI went through the whole thing like I did with [Licensee] and they did not understand, I would ask for an interpreter like I did, but there wasn't one available." (Reproduced Record at 30a). Officer Hutcheson also stated that he knew Licensee knew what the officers were saying and that he asked for an interpreter to "cover all [his] bases." Id. Officer Hutcheson stated that he got the impression that Licensee knew and understood every word he was saying from the vehicle stop to the chemical test. The Bureau also called Booking Agent Brandon Mitchem (Agent Mitchem), a certified breath test operator. It was Agent Mitchem's understanding that Licensee spoke English and actually taught English in Germany before coming to the United States. Agent Mitchem testified that he gave Licensee three opportunities to perform the breath test, but each opportunity yielded an insufficient amount of air into the machine despite the agent's repeated instructions and physical demonstrations about forming a tight seal around the mouthpiece and blowing continuously into the machine. Agent Mitchem testified that he wrote Licensee up as refusing to submit to the chemical testing based on the three unsuccessful attempts to retrieve a sample.s 5 A licensee's failure to provide a sufficient breath to complete a breathalyzer test constitutes a refusal, whether or not licensee made good faith effort to supply sufficient breath. Department of Transportation, Bureau of Driver Licensing. v. Morris, 621 A.2d 1170 (Pa. Cmwlth. 1993). 5 Licensee presented the testimony of his sister Blanka Zborsky (Zborsky), who testified that both she and her brother were born in Bosnia, Herzegovina. She testified that Licensee attempted to learn to speak English, but he had been unable to do so. She stated that she acts as a translator for him. She also testified that Licensee was an electrician and had a good job in this country but lost it because he did not speak English. Zborsky testified that Licensee now works at a warehouse where he does not need to speak English. She also stated that Licensee was able to obtain a driver's license because he had a translator when he took the test. Licensee testified through his translator that he is 52 and does not speak English and has never learned to do so, taking lessons in the past but ultimately quitting. He stated that he speaks Serbo-Croatian and spoke some German while in school; he was confused why Agent Mitchem stated that he actually taught English while in Germany. He testified that he recalled the arrest for DUI, the officer reading something to him, and taking a breath test. Licensee stated that he did not understand anything the officers were saying to him but he was trying to figure out what they were asking him with to do with his hands. Licensee also clarified that he exited the vehicle at the traffic stop because his window did not work and he opened the door to see what Officer Hutcheson wanted. On cross-examination, Licensee testified that Officer Hutcheson misunderstood him because he was not fishing at 3:00 a.m., and he did not tell the officer that he lived with his sister but wanted to call her. Licensee stated that he drank one or two beers that night and that he understood that he needed to blow into the breathalyzer. 6 Accepting the testimony of Licensee and Zborsky as credible, and based on the videotape, the trial court held that Licensee met his burden of proving that he did not speak or understand English sufficiently to have possibly understood the 0 'Connell warnings. The trial court reasoned that while Licensee answered "yes" to many questions posed by Officer Hutcheson and Agent Mitchem, it did not matter because he spoke and understood virtually no English. Finally, the trial court found that because Licensee did not understand English, Officer Hutcheson did not adequately warn him that his license would be suspended if he refused to take the test. Accordingly, the trial court sustained Licensee's appeal and reversed the one- year suspension issued by the Department. This appeal followed.6 The fundamental argument the Department poses is that the trial court erred as a matter oflaw by holding that Licensee satisfied his burden of proving that his language barrier prevented a knowing and conscious refusal to submit to chemical testing. To issue a one-year suspension of Licensee's operating privilege under Section 1547(b)(I) of the Vehicle Code, the Department has the burden of proving that (1) Licensee was arrested for violating Section 3802 of the Vehicle Code by a police officer who had "reasonable grounds to believe" that Licensee was operating or was in actual physical control of the movement of a vehicle while in 6 Our scope of review of a license suspension case under the Implied Consent Law is limited to determining whether necessary findings of the trial court are supported by substantial evidence and whether the trial court committed an error oflaw or abused its discretion. Mueller v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 657 A.2d 90 (Pa. Cmwlth.), petition for allowance of appeal denied, 542 Pa. 637, 665 A.2d 471 (1995). Whether a licensee refuses to submit to chemical testing is a question of law for this Court's review. Stump v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 664 A.2d ] 102 (Pa. Cmwlth. 1995). 7 violation of Section 3802 (i.e., while driving under the influence); (2) Licensee was asked to submit to a chemical test; (3) Licensee refused to do so; and (4) Licensee was specifically warned that a refusal would result in the suspension of his operating privileges and would result in enhanced penalties if he was later convicted of violating Section 3802(a)(1). Once that burden is met, the licensee has the burden to prove that (I) he was physically incapable of completing the breath test or (2) his refusal was not knowing and conscious. Department of Transportation, Bureau of Driver Licensing v. Boucher, 547 Pa. 440, 691 A.2d 450 (1997). Because Licensee agrees that the Department satisfied its burden, the sole issue is whether Licensee met his burden of proving that his refusal (i.e., his failure to register a sufficient breath sample) was not knowing and conscious. Although some circumstances such as a language barrier might affect a licensee's ability to make a knowing and conscious refusal, see, e.g., Department of Transportation, Bureau of Motor Vehicles v. Kyong Rok Yi, 562 A.2d 1008 (Pa. Cmwlth. 1989) (upholding a finding by the trial court that licensee's inability to understand English prevented a knowing and conscious refusal), most cases hold that a failure to understand English provides no foundation for an argument that the licensee was unable to make a knowing and conscious refusal. See Balthazar v. Department of Transportation. Bureau of Driver Licensing, 553 A.2d 1053 (Pa. Cmwlth. 1989), appeal denied, 525 Pa. 586, 575 A.2d 116 (1990); 1m v. Commonwealth Department of Transportation. 529 A.2d 94 (Pa. Cmwlth. 1987).7 7 In Balthazar, for example, the licensee's testimony before the trial court consisted of approximately seven pages of transcript without the assistance of interpreters, and there was never any indication in that the licensee had any difficulty comprehending the questions addressed to him. The licensee in that case also responded to officers at the traffic stop in English and even used foul language in English directed toward the officers. Similarly, in 1m, a motorist failed to (Footnote continued on next page...) 8 Although the trial court found that Licensee did not speak English sufficiently to have possibly understood the 0 'Connell warnings, whether Licensee understands the O'Connell warnings or not is inconsequential. An officer's sole duty is to inform motorists of the implied consent warnings; once they have done so, they have satisfied their obligation. Department of Transportation, Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539 (1996). Additionally, and not without significance in this case, officers have no duty to make sure that licensees understand the 0 'Connell warnings or the consequences of refusing a chemical test. As our Superior Court has stated: The implied consent law contained in Section 1547 of the Vehicle Code states that "[i]t shall be the duty of the police officer to inform the person that the person's operating privilege will be suspended upon refusal to submit to chemical testing." 75 Pa. C.S. SI547(b)(2). The implied consent law imposes the duty upon the officer only to apprise the motorist of the consequences of a refusal to take the breath test. No where does the law require the officer to make certain that the motorist understands that he could exercise a right to refuse a breathalyzer test[.] Commonwealth v. Mordan, 615 A.2d 102, 108-09 (Pa. Super. Ct. 1992). It is equally not the officer's duty to enlist the assistance of an interpreter to make sure a motorist understands implied consent warnings. See, e.g., Commonwealth v. (continued...) show that he was unable to make a knowing and conscious refusal based on a language barrier simply because he did not understand the warnings. The licensee responded to questions in court, unassisted by an interpreter. He also spoke to the arresting officer several times without any problems. In both cases, we held that the language barrier presented in those cases did not prevent the licensees from making knowing and conscious refusals to submit to chemical testing. 9 Robinson, 834 A.2d 1160, 1164 (Pa. Super. Ct. 2003) ("Requiring certified interpreters for every driver who may have difficulty understanding a police officer, whether due to a hearing impairment, language barrier or learning disability, is not only not required by the implied consent law, it is simply not feasible, particularly in the case ofDUI investigations where temporal concerns are paramount.") (emphasis added). Second, although the trial court concluded that because Licensee lacked an understanding of the English language, Officer Hutcheson did not adequately warn him that his license would be suspended if he refused the test, Licensee did not "refuse" the test in the ordinary sense of the word, such as eXplicitly saying "no" to a request to submit to chemical testing or saying anything short of "yes, I will take the test." Instead, the refusal in this case is predicated on the fact that Licensee agreed to take the test and attempted three different times to register a breath sample butfailed to do so, which is deemed a refusal despite the good faith attempts of the licensee. Supra note 5. Accordingly, Licensee had the burden of proving that something impeded him from making a knowing and conscious failure to register a proper breath sample. However, Licensee made no attempt to establish that he was unable to complete the test because he did not understand what to do, only that he did not understand English. The record (including the videotape) reveals that Licensee took the breathalyzer test based on the physical demonstrations from Agent Mitchem; and Agent Mitchem physically demonstrated to blow harder into the breathalyzer and make a seal with his lips after each failed attempt. Licensee attempted to follow Agent Mitchem's instructions each time. Based on these facts, Licensee could not have met his burden of proving that his limited understanding of English prevented him from making a knowing and conscious refusal. 10 In any event, whether Licensee fails to understand English is not automatically outcome determinative. As Balthazar, 1m, and Robinson demonstrate, simply because Licensee spoke Serbo-Croatian and did not speak English does not mean that he cannot act knowingly and consciously. When motorists are unconscious from drinking, thereby allegedly preventing them from "consciously" refusing the test, we still hold that those motorists "consciously" refused the test absent some other verifiable impediment. Department of Transportation, Bureau of Traffic Safety v. Potter, 545 A.2d 979 (Pa. Cmwlth. 1988). The same is true for language barriers; when motorists are limited by their understanding of the English language, thereby allegedly preventing them from "knowingly" refusing the test, we still hold that those motorists "knowingly" refused the test absent some other verifiable impediment. 1m; Balthazar. Otherwise, anyone who speaks little to no English can automatically claim that he or she did not understand the 0 'Connell warnings and avoid the consequences of refusing a chemical test, just as anyone who is drunk could automatically claim that he or she was too drunk to understand the O'Connell warnings and avoid the consequences of refusing a chemical test.8 8 We also note that while the trial court concluded that Licensee spoke virtually no English and that his inability to speak or understand English prevented him from making a knowing and conscious refusal to submit to chemical testing, it is clear that Licensee answered all of Officer Hutcheson's questions regarding the vehicle stop, the sobriety tests, and the chemical testing. Licensee even answered "yes" on many occasions when asked if he understood what he was being told, and he never communicated~verbally or otherwise~to either Officer Hutcheson or Agent Mitchem that he did not understand what they were telling him regarding the chemical test. Moreover, Officer Hutcheson and Agent Mitchem testified that they had no doubt that Licensee understood what they asked of him because of his response to their questions. Most telling of Licensee's understanding of the 0 'Connell warnings and the instructions on giving breath samples is the fact that he actually took the chemical test three different times, albeit ultimately yielding insufficient samples. In short, Licensee understood quite enough to make a knowing and conscious refusal of the chemical test despite his limited understanding of the English language. 11 For these reasons, the order of the trial court is reversed. r- J. ?~ ~~ DAN PELLEGRINI UDGE Judge Simpson concurs in the result only. 12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ivo Martinovic v. : No. 406 C.D. 2005 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant ORDER AND NOW, this 1 th day of August, 2005, the order of the trial court in the above-captioned matter is reversed. _. , ,..-.:, .-\ -i-. .---i , " ",-I. ----