HomeMy WebLinkAbout05-0353
ROBERT E. WOLF, JR.
Petitioner
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNlY, PENNSYLVANIA
v.
: NO. 0.)-- 3S'.3
c,;;..L ,J.;lA--
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
Respondent
LICENSE SUSPENSION APPEAL
AND NOW, this ~ day of January, 2005, comes Petitioner Robert E. Wolf, Jr., through his
attorneys, Mancke, Wagner & Spreha, who respectfully represent
1. Petitioner Robert E. Wolf, Jr., is an adult individual residing at 300 Oxford Road, Gardners,
Pennsylvania and is a licensed Pennsylvania motor vehicle operator.
2. The occurrences allegedly giving rise to the suspension hereinafter occurred on or about
September 13, 2004 in Cumberland County.
3. Petitioner has received notice of an 18-month suspension as authorized by Section "1547BIII" and
a copy of said license suspension notice is attached hereto and made a part hereof as Exhibit A.
4. The Pennsylvania Motor Vehicle Code contains no such provision authorizing a license suspension
and such suspension is illegal, unjust and improper.
5. The suspension for an 18-month period is improper, illegal and unjust and further, the Petitioner
has no prior sentencings which would permit an 18-month suspension.
6. The Department has improperly and illegally used an ARD-DUI disposition against the Petitioner.
7. Further, the license suspension is illegal, unjust and improper for reasons which include, but are
not limited to, the following:
a. there was no valid or proper request to take chemical testing;
b. there was no valid, intelligent or knowing refusal to take a chemical test
c. the Petitioner submitted to a chemical test within two hours (see Exhibit
B);
d. ~1547 and ~3802, facially and as applied to the Petitioner, are in
violation of the State and Federal Constitutions;
e. any alleged refusal would violate equal protection ofthe laws in violation
of the State and Federal Constitutions;
f. Petitioner was not properly advised and/or timely advised of his rights
and/or obligations to submit to chemical testing;
g. the statement of the officer(s) were confusing and/or misleading;
h. Petitioner was videolaudio taped in violation of Pennsylvania law
entitling him to suppression of any alleged refusal and/or tape of such
refusal and entitling the Petitioner to an attorney because ofthe unlawful
act
i. the booking officer improperly advised the Petitioner concerning his
rights and his requirements and read a deficient legally erroneous, and
misleading DL-26/see. Garner v. Penn Dol ()4..1815 Civil, Cumbo Cty.,
Hess, J.) which resulted in an unknowing, unintelligent and coerced
decision concerning the taking of the breath test
j. the videotaping, audiotaping, request for chemical test and further
questioning of the Petitioner was done only after Petitioner was denied
his right to an attorney and mislead concerning his rights, obligations
and privileges;
k. Petitioner was misadvised about his right to a lawyer and further denied
the right to a lawyer as required by 6th Amendment of the U.S.
Constitution and Article I, ~9 of the Pa. Constitution;
I. the Petitioner's right to counsel, pursuant to 6th Amendment of the U.S.
Constitution and Article I, ~9 of the Pa. Constitution, were violated at the
booking center;
m. under the circumstances at the booking center, Petitioner had a right to
counsel under the State and Federal Constitutions before deciding to
take a chemical test
n. ~ 154 7 andlor ~3802 of the Pennsylvania Motor Vehicle Code
constitutes:
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(i) Violation of substantive due process under the Pa. (Article I, ~g)
and U.S. Constitutions (5th and 14th Amendments) as being
vague and overbroad facially and as applied to the Petitioner
and as impennissibly delegating a legislative function to the
judiciary in violation of the Pa. and U. S. Constitutions. See
Commonwealth v. Noel and Travis. 857 A.2d 1283 at 1288
(2004), concurring opinion.
(ii) Act 24 of 2003, Chapter 38, ~3802 and/or ~1547 and their
related provisions violate procedural due process under Article
I, ~g of the Pa. Constitution and the 5th and 14th Amendments
of the U.S. Constitution facially and as applied to the Petitioner.
(iii) Chapter 38 of Act 24 of 2003, ~3802 and/or ~1547 and their
related provisions violate equal protection guaranteed by the
State and Federal Constitutions, facially and as applied to the
Petitioner, in that they treat similarly situated persons differenUy
and such different treatment is not rationally related to the
protection of the public from intoxicated drivers.
(iv) Act 24 of 2003, ~3802 and/or~1547 (suspension of18 months)
violate the constitutional and due process protections against ex
post facto laws in violation of U.S. Constitution, Article I, ~10
and Pa. Constitution, Article I, ~ 17, facially and as applied to the
Petitioner and improperly provide for an impennissible
retroactive application.
(v) The Petitioner was advised that there was no right to an
attorney at the time of a request for the chemical test or refused
such right then such action violates the Defendanfs 6th
Amendment (U.S. Constitution) and Article I, ~g (Pa.
Constitution) right to counsel, facially and as applied to the
motorist.
(vi) The Petitioner was advised if he remained silent during the
request process, his silence would be a refusal which
statements were in violation of his right to remain silent as
guaranteed by the 5th Amendment of the U.S. Constitution and
Article I, ~g of the Pa. Constitution.
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WHEREFORE, Your Petitioner prays Your Honorable Courtto hold a hearing to determine the validity
of the license suspension outlined in Exhibit A.
Resp
neke, Esq., ID No. 07212
Maneke, agner & Spreha
2233 N. FrontStreel Harrisburg, PA 17110
717-234-7051, Attorney for Petitioner
Dated: January 19, 2005
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VERIFICATION
I hereby verify that the statements made in this document are true and correct I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn
falsification to authormes.
I ~ I O~
Date I
'y~f~/
Robert E. Wolf, Jr.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Mail Date: DECEMBER 21. 2004
ROBERT E WOLF JR
300 OXFORD RD
WID t 043496187472110 001
PROCESSING DATE 12/14/2004
DRIVER LICENSE * 24656320
DATE OF BIRTH 12/09/1977
GARDNERS PA 17324
LICENSE IN BUREAU
Dear MR. WOLF:
This is an Official Notice of the Suspension of your Driving
Privilege as authorized by Section 15478111 of the
PennsYlvania Vehicle Code. As a result of your violation
of Section 1547 of the Vehicle Code. CHEMICAL TEST REFUSAL,
on 09/13/2004:
. Your driving privilege is SUSPENDED for a period of 18
MONTHlS) effective 10/24/2005 at 12:01 a.m.
This suspension is in addition to any other suspensions al-
ready en your record.
APPEAL
You have the right to appeal this action to the Court of
Common Pleas lCivil Division) within 30 days of the mail
date, DECEMBER 21, 2004, of this letter. If yoU file an
appeal in the County Court, the Court will give you a time-
stamped certified 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.
~ EXHIBIT
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SincerelY,
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Rebecca L. Bickley, Director
Bureau of Driver Licensing
IN STATE
OUT-OF-STATE
WE B S IrE ADDRESS
INFORMATION 7:00 a.m. to 9:00 p.m.
1-800-932-4600 TOO IN STATE
717-391-6190 TOO OUT-OF-STATE
www.dmv.state.pa.us
1-800-228-0676
717-391-6191
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JAN 2 1 2005 f
ROBERT E. WOLF, JR.
Petitioner
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO.
OJ---./ J 5':J
(7tv,;
--
ferA
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
Respondent
ORDER
AND NOW, this '1tJ) dayof ,4JA1-U /I /1-'1 .2005, up,on consideration of the within Petition,
it is hereby ordered and decreed that a hearing be held on the / J -Mday of ~ ~ L , 2005,
at 9 :300'clock in Courtroom L Cumberland County CoUrthouSl~, Carlisle, Pennsylvania.
Notice of said hearing shall be sent by certified mail to the Department ofT ransportation by Petitioner's
attorney at least sixty days prior to the date of the hearing.
By the Court,
Distribution:
Prythonolary's Office
./.fOhn B. Mancke, Esq., 2233 N. Front Street Harrisburg, PA 17110
~ Dept ofTransportalion, Office of Chief Counsel, 1101 S. Front Street Harrisburg, PA 171 04
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-----
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ROBERT E. WOLF, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
NO. 05-353 CIVIL
COM. OF PENNSYLVANIA,
DEPT. OF TRANSPORTATION,
. BUREAU OF LICENSING,
Respondent
LICENSE SUSPENSION APPEAL
IN RE: LICENSE SUSPENSION APPEAL
ORDER
AND NOW, this .<. r day of April, 2005, the appeal of the petitioner, Robert E.
i.Wolf. Jr., from the suspension of his driver's license is SUSTAINED to the extent that it is
idirected that the period of said suspension be twelve (12) months and not eighteen (18) months.
[n any other regard, the appeal of the petitioner is DENIED.
BY THE COURT,
,
j.(eorge Kabusk, Esquire
ppr PennDOT
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A, lei
~ Mancke, Esquire
qJo; the Petitioner
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ROBERT E. WOLF, JR.,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
Respondent
NO. 05-353 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
Proceedings held before the
HONORABLE KEVIN A. HESS, J.
Cumberland County Courthouse, Carlisle, Pennsylvania
on Wednesday, April 13, 2005, commencing at 9:30 a.m.
in Courtroom Number Four
APPEARANCES:
John B. Mancke, Esquire
For the Petitioner
George H. Kabusk, Esquire
For the Respondent
e
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INDEX TO WITNESSES
FOR THE COMMONWEALTH
DIRECT
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CROSS
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REDIRECT
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EECROSS
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James Sollenberger
Gregory IckIer
INDEX TO EXHIBITS
FOR THE COMMONWEALTH MARKED ADMITTED
Ex. No. 1 notice of suspension 2 7
Ex. No. 2 - videotape 18 18
FOR THE PETITIONER
Ex. No. 1 - breath test ticket 9 24
Ex. No. 2 - criminal record 23 24
Ex. No. 3 - Penn DOT regulations 23 24
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e e
1 (Whereupon, Commonwealth's Exhibit No.1 was
marked for identification.)
MR. KABUSK: This is the case of Robert E.
Wolf, Jr. versus Commonwealth of Pennsylvania, Department of
Transportation, case number 05-353. By official notice
dated December 21st, 2004, the Department notified Mr. Wolf
that as a result of his violation of Section 1547 of the
Vehicle Code relating to chemical test refusal on 9/13/2004
his driving privilege was suspended for a period of 18
months. The Department now calls Officer Sollenberger.
MR. MANCKE: Your Honor, for the record, we
are conceding that the Department can prove reasonable
grounds to request the test, and we are conceding that an
arrest was made.
THE COURT: Okay.
Fine. That will help
facilitate the testimony I'm sure.
Whereupon,
JAMES SOLLENBERGER
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Sollenberger, please state your name
and spell your last name for the record.
A My name is James Sollenberger,
S-o-l-l-e-n-b-e-r-g-e-r.
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Q And where are you employed?
A I'm employed at Hampden Township in
Cumberland County, pennsylvania, sir.
Q During the course of your official duties
have you had the occasion to investigate an alleged incident
of DUI on or about September 13th, 2004?
A That's correct, sir.
Q Would you please tell the Court about that
incident?
A
Yes, sir.
I was in full uniform operating a
marked patrol vehicle on 9/13 of '04.
I was working from 6
12 a.m. to 2 p.m. The weather conditions were clear. The
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roadway was dry.
It was about 1222 hours when I was
dispatched to a motor vehicle accident at the Carlisle Pike
and Salem Church Road.
I began to respond to the accident. While I was
en route, county advised that it was reported one of the
vehicles may be fleeing the scene.
I arrived.
I didn't
find any vehicles at that intersection.
As I was looking around, I noticed -- it appeared
the vehicles had pulled into the Volvo parking lot, to the
rear area of the parking lot, which is off North Salem
Church Road.
I went to that area.
I got out of the vehicle.
The first two people I saw was Lieutenant Commander Gill and
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Ms. Cook.
I asked them if they were involved in the
accident. They stated they were. I asked them if they
needed medical attention. Both stated they did not.
I then asked them if anybody else was involved,
and they indicated the other gentleman standing at another
part of the parking lot. So I walked over to him. That
person was later identified as Mr. Wolf, the gentleman
seated there beside Mr. Mancke.
I spoke to him. I asked him if he was injured, if
he needed any medical attention. He stated he did not. As
I spoke with him I noticed an odor of alcoholic beverage
eminating from his person and also his eyes were bloodshot
and watery.
I asked him for his cards, meaning his driver's
license, vehicle registration, and proof of insurance. He
stated he did not have them. He had given them, I believe
he said, to the other guy, which I believe he meant
Lieutenant Commander Gill.
I then returned to the Lieutenant Commander and
Ms. Cook, spoke to them briefly, got their cards, got a real
quick idea of what happened in each of their opinions as far
as the accident and when it occurred.
Mr. Wolf and spoke to him again.
Excuse me, let me go back. I asked Lieutenant
Commander Gill if he had Mr. Wolf's cards. He stated that
I then returned to
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1 he did not. I then returned and spoke to Mr. Wolf again. I
2 asked him for his cards again. He stated he did not have
3 them, that the other guy had them.
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I said, well, I asked him, and Lieutenant
5 Commander told me that you had -- he did not have your
6 cards. So he checked his pockets, and he found a driver's
7 license and handed it to me.
8 I asked him for his other cards, vehicle
9 registration and proof of insurance. Mr. Wolf started to go
10 to his vehicle to look into, I assume, the glove box. As he
11 was doing this, I asked him where was the damage on your
12 vehicle.
13 I wanted to get an idea how much damage was done
14 to the vehicle, where it was on the vehicle. He took me to
15 the front of the vehicle, and he began to show me the front
16 bumper. He bent down. As he bent down, he lost his
17 balance, caught himself on the bumper, and steadied himself.
18 After that I went back to my patrol vehicle. I
19 requested another officer respond to the scene. I had Mr.
20 Wolf come to another area of the parking lot area that was
21 relatively even, and it was free of debris.
22 I then spoke to him a little bit more. I asked
23 him if he had been drinking. He stated that he had been. I
24 asked him if he would be willing to take a couple tests. He
25 said that he would.
6
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1 We did the test. He did not do very well on them.
2 At that time I placed him under arrest, told him I
3 explained to him what was going to be happening. I was
4 going to take him to booking, give him the opportunity to
5 blow into the Breathalyzer and give me a breath sample for
6 his blood alcohol content to determine what that was.
7 He was cuffed. I patted him down. He was
8 handcuffed and placed in my vehicle. By then the other
9 actually the other two officers arrived, Corporal Shissler
10 and Officer Speck, I believe. Corporal Shissler took over
11 the gathering of the information for the accident.
12 At that point I transported Mr. Wolf to booking.
13 In route to booking I remembered without any prompting from
14 me he said that he had drank one beer. A little bit later
15 he said that he drank two beers, and later he commented that
16 the beer must have been a sixteen ouncer.
17 We arrived at booking, at which time I turned him
18 over to the booking agents on duty, and a few minutes later
19 I read him the implied consent form and asked him if he
20 would take the test. He declined to take the test.
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MR. KABUSK: May I approach the witness, Your
22 Honor?
23 THE COURT: Of course.
24 BY MR. KABUSK:
25
Q
I'm going to show you what's been marked
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Commonwealth's Exhibit No.1, sub-exhibit No.2 or, excuse
me, sub-exhibit No.2. Would you identify that document,
please?
A That -- I'm sorry. That's the implied
consent form that I read to him, I filled out, read to him,
and then signed.
Q And then which portion of that did you read,
one, two, three, and four?
A Yes, sir.
Q And then did the Petitioner sign?
A Yes, sir.
Q Did he ever submit to your request?
A Not to my request, no, sir.
MR. KABUSK: Move for the admission of what's
been marked Commonwealth's Exhibit No.1.
THE COURT: Mr. Mancke, objection?
MR. MANCKE: No objection.
(Whereupon, Commonwealth's Exhibit No.1 was
admitted into evidence.)
MR. KABUSK: Your Honor, I have the officer
-- I have a videotape here with the officer reading the
DL-26 and the subsequent refusal.
THE COURT: Okay.
MR. KABUSK: It's very short, if I may play
25 that portion of the tape.
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1 THE COURT: Okay.
2 MR. KABUSK: Then there's another portion
3 that we'll skip over and then play that portion.
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THE COURT: That's fine.
5 (Whereupon, the videotape was played.)
6 BY MR. KABUSK:
7 Q Did that tape accurately portray the events
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as they occurred?
A Yes, sir.
Q Did he ever submit to your request to take
the test?
A No, sir.
Q And what did you consider his actions?
A A refusal, sir.
MR. KABUSK: No further questions for this
witness.
CROSS-EXAMINATION
BY MR. MANCKE:
Q What time do you indicate in your report that
this incident, the DUI incident occurred?
A About 22 or, I'm sorry, 1222 hours is when I
was dispatched there.
Q And as far as your paperwork as to the time
of the violation of the Defendant, you have used 1222 as the
time of the violation.
Is that correct?
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A That is correct, sir.
Q Now, you were asked whether my client ever
submitted to your request to take a chemical test. Did you,
in fact, receive test results of my client that occurred
within two hours of 1222?
A Yes, sir.
(Whereupon, Petitioner's Exhibit No.1 was
marked for identification.)
BY MR. MANCKE:
Q I'm going to show you what's been marked as
Petitioner's Exhibit No.1.
Is that a copy of the breath
test ticket that you did receive concerning Mr. Wolf?
Yes, sir.
And where -- when and how did you receive
A
Q
that?
A
Q
A
people do all
The ticket itself, sir?
Yes.
After we take someone to booking, the booking
their things, pictures, they run them through
the system to see if there's any warrants and everything,
and what we call a packet is built up.
The packet is eventually sent back to the
arresting officer for the case, to build the case to go
forward. When I received the packet, I noticed that the
ticket was there, the Breathalyzer ticket was in there, sir.
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MR. MANCKE: That's all I have.
REDIRECT EXAMINATION
BY MR. KABUSK:
Q Were you informed by the booking agent: that
the Petitioner did submit to a requested breath test?
A
No, sir.
I had no idea that that had
happened until I received the packet, sir, which was
probably at least a few days later.
MR. KABUSK: Okay. Thank you. No further
questions.
THE COURT: Meanwhile you had submitted the
refusal to PennDOT. Is that what happened?
THE WITNESS: I'm sorry, Your Honor?
THE COURT: In the meantime you had submitted
the refusal to PennDOT?
THE WITNESS:
I believe it was after that,
17 sir.
18 THE COURT: Even after you knew that he had
19 taken the test?
20 THE WITNESS: Well, I thought since he had
21 refused for me, sir, that it was -- that I was required to
22 send in the refusal paperwork, sir.
23 THE COURT: Okay. Thank you.
24 THE WITNESS: Yes, sir.
25 RECROSS-EXAMINATION
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BY MR. MANCKE:
Q Let me just see if I can clarify that. You
sent in the refusal prior to you learning there had been a
test?
A
Q
No, sir. Afterwards, sir.
So it was after you learned that he had
submitted to a chemical test that you sent in the refusal?
A Yes, sir.
Q Were you informed that the Petitioner
submitted to a valid breath test?
A
Not -- no one ever told me that, sir.
It
wasn't until I received the packet.
I wasn't exactly sure
why the ticket was there or what had happened. It took me
several days to call people and to determine -- I still
don't know for a fact, but what I believe was, well what
happened.
THE COURT:
prosecuted, the DUI?
MR. MANCKE: Yes, it was prosecuted.
So this case has not been
THE COURT: Was the test result used?
MR. MANCKE: What eventually happened with
it, and Mr. Wolf was before you about two weeks ago. And
the way the District Attorney resolved it, he entered a plea
of guilty to 3802(a) (I) with an accident, putting it in the
second tier.
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1 THE COURT: Which would have been consistent
2 with the .15?
3 MR. MANCKE: That is correct, Your Honor.
4 THE COURT: He pled guilty to what the test
5 said he did?
6 MR. MANCKE: That is correct, but they did it
7 under an (a) (1) accident.
8 THE COURT: Was the result used at the
9 preliminary hearing?
10 THE WITNESS: No, sir.
11 THE COURT: Did he waive it?
12 THE WITNESS: No, sir.
13 MR. MANCKE: No, there was a hearing. It was
14 at that time when we knew that the Commonwealth had the
15 breath test ticket.
16 THE COURT: Okay. Thank you, sir.
17 MR. KABUSK: No further questions for this
18 witness.
19 THE COURT: You may step down.
20 MR. KABUSK: The Department now calls Booking
21 Agent IckIer.
22 Whereupon,
23 GREGORY DAVID ICKLER
24 having been duly sworn, testified as follows:
25 DIRECT EXAMINATION
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BY MR. KABUSK:
Q Booking Agent IckIer, please state your name
and spell your last name for the record.
A Gregory David IckIer, I-c-k-I-e-r.
Q And where are you employed?
A Cumberland County District Attorney's Office,
Central Processing Department.
Q And during the course of your official
duties, were you involved in the investigation of an alleged
incident of DUI on or about September 13th, 2004?
A Yes, sir.
Q Would you please tell the Court about that
incident?
A Approximately 1306 Officer SollenbergE,r from
Hampden Township brought Robert Wolf into the booking center
on DUI charges.
Q Then what happened?
A At that point Officer Sollenberger read the
implied consent to him, and he refused to take the test. He
signed the DL-26 stating he was not willing to take t:he
test, and then I began the rest of the DUI processing.
I advised Wolf of his audio/visual warnings, then
I offered him a chance, one more time, if he was willing to
take a breath test, and he refused to take a breath test.
At that point I read him his Miranda warnings, and he was
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willing to answer questions.
I asked him all of the
questions that we ask.
At that point we did the standardized field
sobriety tests, and then we concluded processing on the DUI.
At that point we put him in the holding cell because we got
another prisoner in, and then after we got the other
prisoners taken out, I took him out of the cell.
We had him fingerprinted and photographed, and
then he had requested that he -- he would just rather walk
out of here, so I told him that the District Attorney's
policy is for him to be released by himself, he has to be
below a .05. So he was willing to take a breath test for
that.
So I took him out, gave him a breath test, and those
are the results that we have in front of us today.
MR. KABUSK: May I approach the witness, Your
Honor?
BY MR. KABUSK:
Q When you say you gave him a breath test, I'm
going to show you what's been marked Petitioner's Exhibit
No.1. Would you identify that document?
A That's the breath test ticket that I
performed on Wolf.
Q And for what purpose did you perform that
breath test?
A This was solely just for his release. This
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had nothing to do with the refusal, because I took it as a
refusal because he stated to me and Officer Sollenberger
I made it
that he was not willing to take a breath test.
clear to him that it was for his release.
MR. KABUSK: Your Honor, we have a portion of
this on the videotape.
If I could show the initial portion
right when he's turned over to the booking agent, then
there's a long gap where the tape continues to run. I
believe we could just fast forward to that, and then the
last portion of the tape when he gives the breath test that
THE COURT: Fine.
MR. MANCKE: I would think, Your Honor, at
some point we would have to put in the record the times of
the tape that had been shown.
THE COURT: That would be fair. Sure. I
guess that can be read by someone right off the screen,
correct?
MR. MANCKE: Yes.
MR. KABUSK: The tape is showing 1329. Now,
Mr. Mancke, should we just
MR. MANCKE: The start time was 1327 5~). The
end time on that was 132910.
MR. KABUSK: And should we -- you agree to
fast forward through the next portion?
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MR. MANCKE: Yes.
THE COURT: During that time period, if you
would rather -- I don't want to tipify the testimony, but I
think we can agree, rather unequivocally, that he's not
going to take the test for the booking agent. That tape is
clear.
MR. KABUSK: Yes.
THE COURT: All right. Go ahead.
(Whereupon, the videotape was
fast-forwarded.)
THE COURT: Mr. Ickler, I assume you're the
man that he's talking to?
THE WITNESS: Yes, sir.
(Whereupon, the videotape was played.)
BY MR. KABUSK:
Q Booking Agent, could you repeat those words
that you said to him?
A I said, Do you want to see if you can walk
19 out of here.
20 Q What did he say?
21 A He said yes.
22 (Whereupon, the videotape was played.)
23 BY MR. KABUSK:
24 Q Booking Agent, what did you just tell him?
25 A I said he has to call to get a ride home
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because that was the purpose of that test to see if he could
walk out on his own or if he would need a ride.
(Whereupon, the videotape was played.)
MR. KABUSK: And the tape now is showing
1406.
BY MR. KABUSK:
Q Did that tape accurately represent the events
as they occurred?
A Yes, sir.
Q And did the Petitioner ever submit to your
request for him to take the breath test right after the
officer left?
A No, he refused that, too, as you saw on the
tape.
Q But he did submit to a later test, the one
that has been entered into evidence. Is that correct:?
A Yes, sir, that was to see if he could leave
on his own recognizance.
Q And is that the policy of the --
A Yes, that's the District Attorney's policy
that no one is allowed to leave on their own until they're
below a .05 BAC.
Q And is that why then you gave him the
telephone book so he could call someone to get a ride?
A Yes, and as on my report he was released to
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Keystone Taxi, so
Q Now, had he submitted to the request right
after the officer left, what would be the operating
procedures of the booking center in that particular type of
incident?
A
You mean if he would have submitted to the
test right after he -- it would have been taken as a valid
test, but since he refused to me and Officer Sollenberger,
it was taken as a refusal.
MR. KABUSK:
I move for t:he admission of the
videotape which will be marked Commonwealth's Exhibit: No.2.
THE COURT: Unless there's an objection.
MR. MANCKE: No.
THE COURT: All right.
(Whereupon, Commonwealth's Exhibit No.2 was
marked for identification and admitted into
evidence. )
MR. KABUSK: Was the inst:rument working
properly and properly calibrated?
THE WITNESS: Yes, sir.
MR. KABUSK: No further questions.
CROSS-EXAMINATION
BY MR. MANCKE:
Q As a follow-up to that question then, did you
perform the test that's indicated on Pet:itioner's Exhibit
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No. 1 in accordance with PennDOT regulations?
A What regulations are they?
Q The regulations concerning breath test:
procedures?
A I followed my guidelines of how we were
taught by the Traffic Institute of Police Safety, and they
go along with the Penn DOT , so how they taught us how we
perform the test, so it would be down to the dots of how
PennDOT prefers the tests.
Q And then your answer would be that it was
done in accordance with PennDOT regulations?
A Yes.
Q And in addition you had indicated that: the
unit was properly calibrated. Was it also properly
cert:ified?
A Yes, it's certified from CMI, the
manufact:urer, and every mont:h we do an accuracy t:est and
yearly it: gets a calibrat:ion t:est on it.
Q And that was done for t:his part:icular dat:e,
correct?
A The accuracy test or --
Q The accuracy test was done wit:hin thirty days
of t:he dat:e of t:his incident, prior to this incident. Is
that correct?
A
Yes, sir, I'm the technician on it.
I went
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to t:echnician school at t:he manufacturer of this instrument:
for it.
Q
And it was properly calibrated as well.
Is
that correct?
A Yes, sir.
Q Now, you indicated that: the test: t:hat was
done on my client: was done in accordance with t:he Dist:rict
Attorney's policy.
Is that right?
A Yes, sir.
Q And did you t:hen in accordance with t:he
District At:t:orney's policy keep a copy of Petitioner's
Exhibit No. 1 and then submit either a copy or the original
to the Dist:rict Attorney?
A Yes.
Q Why did you do that:?
A Because every piece of evidence we get
t:hrough the booking center we submit:. We don't t:hrow
anyt:hing away.
Q And you considered that a piece of evidence.
Is that correct?
A Well, anything we get with their name on it
we submit.
Q And why was it given to the police officer?
A The same with the police officer, anything
with the Defendant's name on it we give it to him, too,
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because it:'s his prisoner.
Q Now, prior t:o t:he t:ape being turned on at: I
guess it: was 1400 hours, was t:here a conversation wit:h my
client in the hallway that caused him to come back in to
have the breath test performed?
A Yes.
Q And that conversation I couldn't hear on the
tape. Do you recall what t:hat: conversation was?
A I don't know word-for-word what: it: said, but:
any t:ime a prisoner asks -- if they want: to -- a first: time
prisoner says, I just want to walk home, I always state to
them you have t:o be below a .05 BAC level, and we can give
you a breat:h test if you want to, just for your release.
Q And so t:hen he said t:hat: he would submit to
the breath test?
A Yes, t:o see if he could walk out: on his own.
Q
I noticed t:hat:
what: I t:hought: I heard on
the tape, and correct me if I'm wrong, that after the first
sample was given, and you got a read out, my client asked
you specifically can I do it again. Do you recall t:hat?
A No, I do not, sir.
Q Did you ask him to blow into it: the second
time to give a second sample?
A I don't recall that.
THE COURT: Well, if it helps, I do recall.
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1 THE WITNESS: Okay.
2 THE COURT: He blew a 157 and then he asked
3 whether he could do it again.
4 MR. MANCKE: That was my understanding.
5 THE COURT: And if t:hat's not Mr. Kabusk's
6 recollection, we will be happy t:o play it: again, but I think
7 it: was rat:her clear what happened. He might: not remember at
8 t:he moment, but that is clearly what happened.
9 MR. KABUSK: I'm sorry. I was looking away.
10 You say when he asked --
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THE COURT: When he blew the first result, he
blew a 157, and it: was he t:hat: t:hen said, can I do it: again.
MR. KABUSK: He meaning the Petitioner?
THE COURT: Yes.
MR. KABUSK: Yes.
THE COURT: Okay. We're agreed on that?
MR. KABUSK: That's my recollection also.
THE COURT: Okay.
BY MR. MANCKE:
Q And then after he gave the second sample, did
my client again ask you, can I get: another one?
A I don't: recall that.
MR. MANCKE: That's all I have.
MR. KABUSK: No furt:her questions.
THE COURT: Okay. Thank you.
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1 MR. KABUSK: That is the Depart:ment:'s case,
2 Your Honor.
3 THE COURT: Okay. Mr. Mancke, do you want to
4 offer any testimony or --
5 MR. MANCKE: We have some exhibit:s we would
6 offer, Your Honor.
7 (Whereupon, Pet:itioner's Exhibit: Nos. 2 and 3
8 were marked for identification.)
9 MR. MANCKE: Your Honor, we would move for
10 the admission of Petitioner's Exhibit 1, which is the breath
11 test ticket.
12 MR. KABUSK: No objection.
13 THE COURT: Okay.
14 MR. MANCKE: And then we would move for the
15 admission of a copy of a certified criminal record of my
16 client:, and t:hat:'s been marked as Petitioner's Exhibit 2.
17 THE COURT: And does that indicate your
18 client's ARD disposition?
19 MR. MANCKE: No, the Penn DOT record shows the
20 ARD disposition. The criminal history was expunged, but it
21 does show a conviction which occurred t:wo days aft:er this
22 incident, and I'm not: sure what PennDOT is relying upon t:o
23 enhance it to eighteen months, so I'm introducing it to show
24 that: there was a DUI conviction but that occurred two days
25 after the refusal.
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THE COURT: Okay.
MR. MANCKE: And then t:he next would be
Petit:ioner's Exhibit No.3, which is t:he PennDOT regulations
on breath test procedures.
THE COURT: Okay. Any objection t:o any of
t:he exhibit:s, Mr. Kabusk?
MR. KABUSK: No objection.
THE COURT: All right. Very well. They're
admitted.
(Whereupon, Petitioner's Exhibit Nos. 1, 2,
and 3 were admitted int:o evidence.)
MR. KABUSK: Yes, I had moved for the
admission of what:'s been marked Commonwealth's Exhibit No.
1, which includes --
THE COURT: Contains the DL-26.
MR. KABUSK: Yes, Your Honor.
THE COURT: Okay. Fine.
MR. KABUSK: And I assume, if I recall,
that's been admitt:ed.
THE COURT: Um-hum.
MR. MANCKE: Then we would rest, Your Honor.
THE COURT: Okay. Well, how do you want to
go from here? There are a couple of issues. There are
numerous issues.
It: would be helpful for me to get
something in writing as to some of this st:uff.
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There may even be some quest:ions here like the
right to counsel and so forth that I think have already been
resolved in this count:y adversely to the Petitioner, but I'm
not sure.
MR. MANCKE: Yes, Your Honor, we had sent to
the Court -- and maybe the Court did not receive it. We had
sent it on Friday, a memorandum dealing with the issue of
the eighteen months.
THE COURT:
MR. MANCKE:
Oh, okay.
And I have a copy here I could
give t:o you.
THE COURT: You're saying t:hat even if it: is
a refusal, it should be a year?
MR. MANCKE: Correct.
THE COURT: Okay.
16 MR. MANCKE: And that's why we int:roduced the
17 criminal history and PennDOT history also.
18 THE COURT: I'm not facile enough with what
19 t:riggers an eight:een months. I'll have to read your
20 memorandum on that.
21 MR. MANCKE: Then also, Your Honor, what
22 we've indicated in a foot:not:e to that memorandum is t:hat the
23 Garner case that you had written also controls this case
24 because even though it is not an eighteen mont:h refusal,
25 because the prior can't be used in the refusal section, the
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prior can be used -- the ARD can be used t:o enhance t:he
criminal penalty. So, therefore, we say the Garner case
that you had written would also be controlling here. So
that:'s, as we see it, the second issue.
THE COURT: At least one year is a lot: closer
6 to eighteen months than 72 hours is to 90 days, but that:'s
7 anot:her matter.
8 MR. MANCKE: As it relat:es to the issue of
9 t:he subsequent test being taken, we suggest t:hat under 1547,
10 especially Subsect:ion I, t:here can be a request by a
11 motorist on his own to take it.
12 Since the test was done within two hours, it's our
13 position under the new law t:hat both the officer has t:he
14 right to request the test: and the motorist has the right to
15 request the t:est.
16 THE COURT: Since you're proceeding by oral
17 argument, I'll t:ake advantage of this situat:ion and do what
18 I normally do, and that's t:o ask you to respond to some
19 things.
20 Doesn't that put the Commonwealt:h t:hough on
21 somet:hing of a catch 22 because can't you also hear yourself
22 arguing at the t:rial of this case or pret:rial of t:his case
23 that the only reason why he took the second test was to see
24 if he could leave, and that that: was t:he limit of his
25 consent, and that he strongly objects to the admission of
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the test as proof of his guilt because he t:ook it for a
limited purpose? I don't think the Defendant: can have it
bot:h ways.
MR. MANCKE: We actually didn't argue that
with the District Attorney. We actually argued --
THE COURT: Vicariously enough you chose to
plead guilty t:o a section where that was not implicated, so
in a way you did. You did not concede -- not: that that's
the issue, but I'm talking about: in the hypothetical.
You could do exactly what you did, and t:hat: is to
say the blood test: apart:, we're not going to concede t:he
admissibility of the 157 result: against us because we took
the test for a limit:ed purpose.
MR. MANCKE: Act:ually we did say we would
plead to the 157, but: the District At:torney's office want:ed
to do it for whatever reason they did not want to use
that. They said we'll get the same result because he had
originally been charged only with the (a) (1) .
THE COURT:
I guess what: I mean to be saying
is couldn't: one see the average Defendant, not: your client,
but: t:he average Defendant arguing I only t:ook this t:est so I
could get out of the police station. I did not mean it: to
be used against me in a court of law. Wouldn't that: be a
valid argument?
MR. MANCKE:
It could be an argument.
I'm
28
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1 not: willing to concede it would be a valid argument: because
2 I think they can get it under the (al (1). Because people go
3 into the hospital, and they say I'm t:aking blood for medical
4 purposes only, and that doesn't prohibit: t:he Commonwealt:h
5 from subpoenaing those medical records and t:hen using that:
6 test: result against the person. They've done that on a
7 regular basis. So I don't: know here that that would have
8 meant it: was inadmissable against: t:he Defendant.
9 But we raise that as an issue. Perhaps the old
10 law t:here were cases, as I recall, suggesting t:hat
11 subsequently agreeing t:o t:ake the t:est: doesn't: negate the
12 refusal. However, under the new law now we're talking about
13 within two hours.
14 So if t:he officer has the right: t:o det:ermine when
15 within two hours he's going to do it, we think the equal
16 protection clause of both the federal and state Const:it:ution
17 would allow the Defendant to make that: same choice, and in
18 t:his case he did. It was within two hours, and it was in
19 conformity with the Penn DOT regulations.
20 As it relates to t:he right t:o an attorney and t:he
21 rest of the Constitutional issues that were raised in our
22 petition, we renew those. We're not waiving those.
23 But Commonwealth versus Lucas that was decided by
24 Judge Bayley, which I've noted in the footnote, addresses
25 each of the issues that we have raised in our petition
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including that, and I just note that t:hat is contrary t:o
what our position is on the Constitutional issues, but we're
preserving that Constitutional issue. If the Court wants to
see a brief on the Constitutional issue, I'll be happy to
prepare it.
THE COURT: If that's already been laid to
rest: by Judge Bayley, I'll simply incorporate his opinion by
reference. So this is going to focus then for me on this
whole issue of the Defendant then ending up at t:he end of
the day having taken the test: wit:hin two hours. And I think
the circumstances under which that happened have got t:o be
very important I would think, but we'll see.
MR. MANCKE: And then, of course, t:he issue
of t:he eighteen months, which --
THE COURT:
I'm sorry, the eighteen months,
yes. Very well. Which I have not figured out how they got
to that. Maybe you want to start: there, if you don't mind,
on the eighteen months.
MR. KABUSK: Your Honor, I would just point
out the words of the st:at:ute which says t:he person who has
prior to the refusal under this paragraph been sent:enced for
-- and then it talks about: an offense under 3802
THE COURT: And that was prior to the
refusal? Prior to that day, 9/13/04, he had been sentenced
for something?
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MR. KABUSK: My understanding is he had been
sentenced for the DUI two days after the refusal.
THE COURT: But that's after, so it's not
prior.
MR. KABUSK: Yes.
THE COURT: So it:'s clearly not: an
eight:een-month suspension. Do you agree?
MR. KABUSK: I would not argue that it should
be an eighteen-month suspension.
THE COURT: Well, that's good. We're getting
closer.
MR. KABUSK:
I hate to concede, but
THE COURT: Well, sometimes we have to do
that. So we're probably, at the most, looking then at
twelve months.
MR. MANCKE: Yes, Your Honor.
MR. KABUSK: And then regarding t:he refusal,
the law is clear that: only an unqualified unequivocal assent
is satisfactory. That's Renwick, 669 Atlantic Second 934.
In regard -- regarding whether the test has to be
done within two hours, I would point you to the Williams
case, 755 Atlantic Second 727, which states -- of course
this was under the old law.
MR. MANCKE: But the two hours has nothing to
do with the civil sanction.
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1 THE COURT: Well, but I mean let: me bounce a
2 hypothetical off of you. Let's suppose he had gone out. He
3 knew all about the law, and a quarter of two he said, Agent
4 Ickler, I've been thinking about: this refusal stuff.
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And he told t:he officer no, and he said no t:o you,
but it's within two hours, and I really, really, really want
to t:ake this test. Now, surely Agent Ickler would have
administered t:he test, and we would have had no refusal.
So it's really the provisional question. I will
take it to leave the station -- isn't that: really the issue
-- or do you really argue that if he said no twice and then
changed his mind wit:hin the two hours and said I really
understand I made a mistake. I want to take this test. I
don't want: t:o lose my license.
I'm watching t:hat on the
videotape, and it's still within the two hours.
think this would be a valid refusal?
MR. KABUSK: Yes, the first response
Do you
controls.
THE COURT: Oh my goodness gracious.
MR. KABUSK: Any second chances are under 619
Atlantic Second 397. This particular case I would point you
t:o the Lane case, 556 Atlantic Second 12, which I would
argue is very similar to this particular scenario.
THE COURT:
Atlantic Second 12.
Similar to this scenario,
556
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MR. KABUSK:
In Lane there was a refusal.
The Defendant walked out: of the station, came back, and was
curious t:o know what: his BAC level was. They gave him the
test. The refusal still stood.
I would argue that's very
similar.
THE COURT: That's after he went out in the
parking lot and drank a fift:h of whiskey, and that's what he
said at trial, but this guy hadn't left the station.
MR. KABUSK: And then just: what you were
speaking about earlier in this part:icular case, the t:ables
are turned. Mr. Mancke now is arguing for the admission of
the ticket and otherwise, I mean, he would be waving around
the Eisenhart case saying the test can't be used, so he
can't have it both ways. The Department would argue that it
is a refusal.
THE COURT: Well, I t:hink that:'s exactly what
this may turn on.
MR. MANCKE: Well, just to make sure, he
mentioned Mr. Mancke.
I did not: argue that with the DA's
I didn't argue one way or the other.
MR. KABUSK: No aspersions against him.
THE COURT: Understand. This is one of these
rare cases where I not only would like to have it
office.
t:ranscribed -- and I hear the stenographer clanking around
down there. Normally we don't transcribe oral argument, but
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1 I'm glad she is taking this.
2 So with that: we can probably dispense with briefs
3 or any other memo as long as -- I've got to make sure that I
4 have the copy of your memo on the eighteen months, but that
5 seems almost like a non-issue here.
6 MR. MANCKE: I handed one up.
7 THE COURT: Anyt:hing else, gentlemen?
8 MR. MANCKE: Nothing further, Your Honor.
9 MR. KABUSK: Nothing, Your Honor.
10 (Whereupon, t:he above proceeding was
11 concluded.)
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CERTIFICATION
I hereby certify that the proceedings are
cont:ained fully and accurat:ely in the notes taken by me on
the above cause and that this is a correct transcript of
the same.
f~ur~ (~(~n.dI.JC~
Laura F. Handley
Official Court Reporter
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and
directed to be filed.
/117/
Date
.JC
.e,pOS
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