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HomeMy WebLinkAbout05-5805 v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. C>~- SFo5 Ct-ulL ~~ IAN H. LEREW Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent LICENSE SUSPENSION APPEAL AND NOW, this _ day of November, 2005, comes Petitioner Ian H. Lerew, through his attomeys, Mancke, Wagner & Spreha, who respectfully represent: 1. Petitioner Ian H. Lerew, is an adult individual residing in the Cumberland County Prison, Carlisle, Pennsylvania and is a licensed Pennsylvania motor vehicle operator. 2. The occurrences allegedly giving rise to the suspension hereinafter occurred on or about September 18, 2005 in Cumberland County. 3. Petitioner has received notice of an 18-month suspension and a copy of said license suspension notice is attached hereto and made a part hereof as Exhibit A. 4. The license suspension is illegal, unjust and improper for reasons which include, but are not limited to, the following: a. there was no valid, proper and/or timely request to take chemical testing; b. there was no valid, intelligent or knowing refusal to take a chemical test; c. the Petitioner agreed to take a chemical test; d. any wamings conceming a refusal to submit were inadequate and untimely; e. ~1547 and ~3802, facially and as applied to the Petitioner, are in violation of the State and Federal Constitutions; f. any alleged refusal would violate equal protection of the laws in violation of the State and Federal Constitutions; g. Petitioner was not properly advised and/or timely advised of his rights and/or obligations to submit to chemical testing; h. the statement of the officer(s) were confusing and/or misleading; i. the booking officer improperly advised the Petitioner concerning his rights and his requirements; j. the warnings failed to comply with Act 177 of 2004, 75 Pa.C.SA ~1547(b)(ii) and/or were inadequate to advise the Petitioner of his rights and/or obligations; 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 time of the request for testing; 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. ~1547 and/or ~3802 of the Pennsylvania Motor Vehicle Code constitutes: (i) Violation of substantive due process under the Pa. (Article I, ~9) and U.S. Constitutions (5th and 14th Amendments) as being vague and overbroad facially and as applied to the Petitioner and as impermissibly 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, ~9 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 differently and such different treatment is not rationally related to the protection of the public from intoxicated drivers. 2 (iv) Act 24 of 2003, ~3802 and/or ~1547 (suspension of 18 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 impermissible retroactive application. (v) If 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 Defendant's 6th Amendment (U.S. Constitution) and Article I, ~9 (Pa. Constitution) right to counsel, facially and as applied to the motorist. (vi) It is believe that the Petitioner may have been advised if he remained silent during the request process, his silence would be a refusal and it is believed that the refusal would be used against him in any subsequent criminal proceedings which statements were in violation of his right to remain silent as guaranteed by the 5th Amendment ofthe U.S. Constitution and Article I, ~9 of the Pa. Constitution. WHEREFORE, Your Petitioner prays Your Honorable Court to hold a hearing to determine the validity of the license suspension outlined in Exhibit A. submitted, Dated: November 8, 2005 John B. ancke, Esq., ID No. 07212 Mancke, Wagner & Spreha 2233 N. Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner 3 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 authorities. i I) ~ J;2.Cns:- Date [ / Ian H. Lerew COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: OCTOBER 13. 2005 IAN H LEREW 1003 DREXEL HILLS BLVD WID. 052796122749277 001 PROCESSING DATE 10/06/2005 DRIVER LICENSE' 27134854 DATE OF BIRTH 11/21/1984 NEW CUMBERLAND PA 17070 Dear MR. LEREW: This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1547BIII of the PennsYlvania Vehicle Code. As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL. on 09/18/2005: . Your driving privilege is SUSPENDED fo~ a pe~iod of 18 MONTH(S) effective 11/17/2005 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 11/17/2005. You may surrender these items before, 11/17/2005, 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~ license(s). Complete the following steps to acknowledge this suspension. 1. Return all current PennsYlvania driver's licenses, learner's permits and/or camera cards to PennDOT. 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 I s license. Remember: You may not retain your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation ~ " ~ ~ ~ A- l EXHIBIT 052796122749277 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 listed 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, OCTOBER 13, 2005, of this letter. If YOU file an ap- peal in the County Cou~t, the Cou~t will give you a time- stamped ce~tified 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 11/17/2005. 052796122749277 SincerelY, bre~ Janet L. Dolan. Acting Director Bureau of Driver Licensing IN STATE OUT-OF-STATE WEB SITE ADDRESS INFORMATION 7:00 a.m. to 9:00 p.m. 1-800-932-4600 TDD IN STATE 717-391-6190 TDD OUT-OF-STATE www.dmv.state.pa.us 1-800-228-0676 717-391-6191 ~ - ~ \) \l ..z r \.) "~ tv ~ C> ~ ~ \J( C> -d ~ ~ ./ '-'-- r-,? () o '::.;'~, -'f\ ( ,j. :-\ ....-. S: ~'.'.'~.'\. 1\ d:,' y:) \ (-...u \ :;,'.~, ~ -" cf! ~.;(:.:, 0 ...< .,p v. : IN THE COURT OF COMMON Pi: : CUMBERLAND COUNTY, PENNSYLVANIA : NO.DS- SJ'oS CiviL ~~ ! HECEIVF:D. 1/1 NOV 0 I,l 2005 : M IAN H. LEREW Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this ~ dayof 111!7N/JnA..I~, 2005, upon consideration ofthewithin Petition, it is hereby ordered and decreed that a hearing be held on the / $-t6day of '~.ud./J;!! , 200 ~ , at ~ ;~() o'clock in Courtroom~, Cumberland County Courthouse, 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: Prothonotary's Office An B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110 ~A Depl. of Transportation, Office of Chief Counsel, 1101 S. Front Street, Harrisburg, PA 17104 ~ /]) 11-ILj-(]5 SS :8 bPJ II '0" ""117 . 'I. ~ '''' L!. I' ( .~ JliVv ^tJ\ii-O,<'~^);-:;rj;:'ld :lHl :lO :;J!,~,~:,O-(1Jl\j I,. " v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-5805 CIVIL TERM IAN H. LEREW, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this 3~ day of FeJ.>..v, ' 2006, it is hereby ordered and decreed that the hearing scheduled for February 15, 2006 at 3:00 '" is continued to April 26, 2006 at1 :30 pm in Courtroom No.4, Cumberland County Courthouse, 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: Prothonotary's Office John B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110 George Kabusk, Esq., PA Department of Transportation, Office of Chief Counsel, 1101 S. Front Street, Harrisburg, PA 17104 /I) ~~ ;J . 03 tJ t.. cf.-., 'i:J 87 .!~ ILl 1 V .~..... '~Cl 8- 83.:l9DOZ l'"I'~''' r,b ~ .L\.~i,>::/ :kA t-L,,~:~Jd 3Hl :10 ~~.'(}-(13l\::! ~ .. LAW OFFICES MANCKE, WAGNER Be SPREHA 2233 NORTH FRONT STREET JOHN B. MANCKE P. RICHARD WAGNER EDWARD F. SPREHA. JR. HARRISBURG. PA 17110 PHONE (717) 234-7051 FAX (717) 234-7080 February 1, 2006 Hon. Kevin A. Hess Altn: Robbi Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Ian H. Lerew v. Comm. of PA, Dept. of Transportation No. 05-5805 Civil Term Dear Robbi: Per our conversation, please find enclosed Order relative to the above-{;aptioned hearing along with self-addressed, stamped envelopes for George Kabusk and for us. Thank you for your consideration. Very truly yours, ~ R. God- Holly R. Cook Secretary to John B. Mancke Enclosures ,. I IAN H. LEREW, Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VAN IA v. : NO. 05-5805 CIVIL TERM : (Judge Kevin A. Hess) :::':". o COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent c,,:, MOTION FOR CONTINUANCE -1-:-- r0 AND NOW, this 13th day of April 2006, comes Ian H. Lerew, through his attorneys, Mancke, Wagner & Spreha, who respectfully represent: 1. Your Petitioner is an adult individual residing at 1835 Creek View Drive, New Cumberland, Pennsylvania. 2. Petitioner filed a license suspension appeal on November 8, 2005 in response to a Notice of Suspension from Penn Dot dated October 13, 2005. 3. The license suspension appeal hearing is currently scheduled for April 26, 2006 at1 :30 pm in Courtroom No.4. 4. On April 12, 2006, Petitioner's attorney, John B. Mancke, Esq., received an Order scheduling him for a criminal trial on April 26, 2006 at 2:00 pm at the Dauphin County Courthouse before the Honorable Joseph Kleinfelter. 5. Petitioner's attorney, John B. Mancke, Esq., contacted, George Kabusk, Esq., attorney with the Department of Transportation, who has indicated he has no objection to the granting of the Motion for Continuance. () -1"1 -,-, r= ---I';'; " WHEREFORE, Your Petitioner prays Your Honorable Court to grant a continuance of the hearing scheduled for April 26, 2006 at 1 :30 pm in Courtroom NO,4. Respectfully submitted, \ L.-" John . Mancke, Esq., ID No. 07212 Manc ,Wagner & Spreha 2233 N. Front Street, Harrisburg, PA 17110 717-234-7051, Allorney for Petitioner Dated: April 13, 2006 , , IAN H. LEREW, Petitioner : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-5805 CIVIL TERM : (Judge Kevin A. Hess) v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent MOTION FOR CONTINUANCE AND NOW, this 13th day of April 2006, comes Ian H. Lerew, through his attorneys, Mancke, Wagner & Spreha, who respectfully represent: 1. Your Petitioner is an adult individual residing at 1835 Creek View Drive, New Cumberland, Pennsylvania. 2. Petitioner filed a license suspension appeal on November 8, 2005 in response to a Notice of Suspension from Penn Dot dated October 13, 2005. 3. The license suspension appeal hearing is currently scheduled for April 26, 2006 at 1 :30 pm in Courtroom NO.4. 4. On April 12, 2006, Petitioner's attorney, John B. Mancke, Esq., received an Order scheduling him for a criminal trial on April 26, 2006 at 2:00 pm at the Dauphin County Courthouse before the Honorable Joseph Kleinfelter. 5. Petitioner's attorney, John B. Mancke, Esq., contacted, George Kabusk, Esq., attorney with the Department of Transportation, who has indicated he has no objection to the granting of the Motion for Continuance. ,- WHEREFORE, Your Petitioner prays Your Honorable Court to grant a continuance of the hearing scheduled for April 26, 2006 at1 :30 pm in Courtroom NO.4. Respec John . ancke, Esq., ID No. 07212 Man e, Wagner & Spreha 2233 . Front Street, Harrisburg, PA 17110 717-234-7051, Attorney for Petitioner Dated: April 20, 2006 ) i-:..::' 1..L (-- ',) , , ~ '-REC;EIVlSI51 : APR 2 4 2006 i BY;__ __. IAN H. LEREW, Petitioner v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-5805 CIVIL TERM : (Judge Kevin A. Hess) COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING Respondent ORDER AND NOW, this 21f~ day of ~ ~..1, , 2006, it is hereby ordered and decreed that the hearing scheduled for April 26, 2006 at 1 :30 pm is continued to the .JLrrdayof ~. 2006 at J" W <lI;I/pm in Courtroom No.4, Cumberland County Courthouse, 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: P.!9thonotary's Office 00hn B. Mancke, Esq., 2233 N. Front Street, Harrisburg, PA 17110 ~orge Kabusk, Esq., PA Department of Transportation, Office of Chief Counsel, 1101 S. Front Street, Harrisburg, PA 17104 -/lL ~ ?~ t ~c,. ~Oi~ ~/ O~' 1". << <" . . IAN H. LEREW, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW COMMONWEALTH OF NO. 05-5805 CIVIL TERM PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU: OF DRIVER LICENSING, Respondent IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Wednesday, May 31, 2006, in Courtroom Number 4. APPEARANCES: GEORGE KABUSK, Esquire Office of Chief Counsel For Department of Transportation JOHN MANCKE, Esquire For the Respondent ,"-" ~ c: (' . I' 11'-/ 0.'" ..,.:J . i J ";jh .1(., e e INDEX TO WITNESSES FOR THE COMMONWEALTH DIRECT CROSS REDIRECT Officer James Stewart 4 17 21 Joshua Sheaffer 23 26 31 FOR THE DEFENDANT Ian H. Lerew 33 35 INDEX TO EXHIBITS FOR THE COMMONWEALTH MARKED ADMITTED Ex. No. 1 - certified driving record 3 33 FOR THE DEFENDANT Ex. No. 1 - DL-26 (2-05) 18 36 Ex. No. 2 - Intake & Chain of Evidence Form 29 36 2 e e 1 (Whereupon, Commonwealth's Exhibit No.1 2 was marked for identification.) 3 MR. KABUSK: Good afternoon, Your Honor. 4 MR. MANCKE: Good afternoon. 5 THE COURT: Good afternoon. Go ahead. 6 MR. KABUSK: This is the case of Ian H. Lerew 7 versus Commonwealth of Pennsylvania, Department of 8 Transportation, Bureau of Driver Licensing, Case No. 9 05-5805. This is an appeal from a notice of suspension 10 dated October 13th, 2005, in which the Department notified 11 the petitioner that as a result of his violation of Section 12 1547 of the Vehicle Code, relating to chemical test refusal 13 on 9/18/2005 his driving privilege was being suspended for a 14 period of eighteen months. The Department is ready to 15 proceed, Your Honor. 16 THE COURT: Anything you want to say before 17 we get started, Mr. Mancke? 18 MR. MANCKE: Your Honor, as it relates to the 19 arrest, we are conceding there was an arrest. And we are 20 conceding that there reasonable grounds to request a 21 chemical test. 22 THE COURT: Fine. 23 MR. KABUSK: With leave of Court though the 24 Department respectfully requests that the whole story be 25 told in order to get a better perspective of the refusal. 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 e e THE COURT: We will certainly let you do that, but it is conceded. MR. MANCKE: Your Honor, we would request, if the Commonwealth is going to have more than one witness, that the witnesses be sequestered. THE COURT: If you have witnesses on the same set of facts... MR. KABUSK: Yes, Your Honor. (Whereupon, the witness was sequestered.) MR. KABUSK: The Department now calls Officer James Swartz. Whereupon, OFFICER JAMES SWARTZ, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. KABUSK: Q Officer Swartz, please state your name and spell your last name for the record. A Officer James Daniel Swartz, S-w-a-r-t-z, sir. Q And where are you employed? A I am employed as a full-time police officer in the Borough of Newville, Cumberland County, and a part-time police officer in the Borough of Shiremanstown, Cumberland County. Q And do you have Act 120 certification I 4 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 e e believe it is? A Yes, sir. I completed the Police Academy last year. Q During the course of your official duties have you had occasion to investigate an alleged incident of DUI on or about September 18th, 2005? A Yes, sir. Q Could you please tell the Court about that incident. A Yes, sir. On the evening of September 18th, 2005, I was running a traffic control detail, specifically speed, at the intersection of Main Street and Railroad Avenue. At approximately 0033 hours I observed a silver Acura Integra traveling westbound on Main Street at a high rate of speed. I proceeded to follow the vehicle, activated the lights and siren. The vehicle continued out of my jurisdiction, into I believe it is -- West Pennsboro -- not West Pennsboro, it is Hampden Township. Q Did you get a clock on the speed? A I got a -- yes, sir. I got a very good clock, of approximately seventy-four miles an hour. Q And where did you initially see the vehicle? A At Railroad Avenue and Main Street, sir. Q Please proceed. 5 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 e e A The vehicle proceeded west on Main Street, out of my jurisdiction, into, as I said, Hampden Township, I believe. It turned south on Wesley Drive and then made another left-hand turn into the Wesley Apartments -- I believe it is the Wesley Apartments. Q Did you notice anything unusual about the vehicle? A Other than the extreme speed, sir? Q Yes. A The vehicle had quite a substantial lead over me, until he made a hard break at the intersection of Wesley Drive and Simpson Ferry, at which point I closed the distance considerably. I observed him turning into the Wesley Apartments. And then whenever I turned into Wesley Apartments, the defendant, Mr. Lerew, seated there next to his attorney, was exiting his vehicle. Q And what did you notice then? A As Mr. Lerew was existing his vehicle, he was actually parked very close to an SUV. I believe he almost hit a trash dumpster that was not in the parking spot he was in. He was blocking traffic. As he was exiting his vehicle, he stumbled and fell, and placed his left hand on the fender of his vehicle and his right hand on the SUV and attempted to rise. At which point I exited my vehicle and assisted Mr. Lerew back into his vehicle. 6 e e 1 At that point I could smell an extremely 2 strong smell of alcohol -- of an alcoholic beverage coming 3 from Mr. Lerew. I requested that he reenter his vehicle for 4 his safety and remain there, to please close his door and 5 lower his window. It took him some time. He had some 6 slurred speech. He was very uncoordinated in his movements, 7 searching for the controls, as if he was unfamiliar with the 8 vehicle. 9 He did get his window lowered, get the door 10 shut. I requested the driver's license, registration and 11 proof of insurance from Mr. Lerew. He could not provide the 12 documentation. It took him several minutes to locate a 13 driver's license, at which point I took the driver's license 14 and instructed him to remain in his vehicle, not to exit his 15 vehicle. I returned to my vehicle and requested backup for 16 a DUI evaluation. 17 Q And then what happened? 18 A Upon arrival of two backup units, we both 19 reapproached the vehicle, removed Mr. Lerew from the vehicle 20 with assistance, brought him to the back of the SUV and sat 21 him on, sort of standing, half standing, half sitting on the 22 rear bumper of the SUV. We determined that with his level 23 of intoxication it would be unsafe for him to perform an 24 SFST, as he could not stand on his own. 25 We gave him a PBT at that point, myself and 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 e e one of the backup units, Unit 1830 I believe. He was a .22 on a PBT. MR. MANCKE: Your Honor, I am going to object to a specific number of a PBT, as it is not a calibrated or a certified number. THE COURT: I think we all understand that. Go ahead. THE WITNESS: Mr. Lerew attempted on two separate occasions to provide a breath sample. On both attempts he was not providing a sufficient sample. He was puffing his cheeks out as if he were attempted to blow but was holding his breath. BY MR. KABUSK: Q Are you referring to his performance of the PBT test? A Yes, sir. Q Please proceed. A Mr. Lerew was told if he did not stop interfering with the test and provide a sufficient breath sample, he would be taken into custody immediately for suspicion of DUI and transported to Holy Spirit Hospital for a blood test. At which point he did supply a sufficient breath, and we got the stated reading. Mr. Lerew was taken into custody. He was handcuffed, searched, placed in the back of my patrol 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 e e vehicle, transported to Cumberland County Booking for processing. Q Did you tell him why he was being handcuffed and transported? A Yes, sir. On the .22 reading on the PBT, he was immediately instructed, sir, at this point you are under arrest for suspicion of drunken driving, driving under the influence of alcohol, please place your hands behind your back. Q Please proceed. Then what happened? A Upon arrival at Booking, Mr. Lerew was escorted upstairs to the processing center. Q Did you have any conversations with him on the way to the Booking Center? A Yes, sir. On the way to the Booking Center Mr. Lerew was trying to negotiate his way out of being arrested. He stated several times that he used and was willing to set up in his words his suppliers of marijuana, if I would just pullover and let him walk home. Q Did he indicate to you whether he had been drinking alcohol or not? A Yes, sir. He did make the statement that, yes, I know I am -- excuse me, I believe the statement was okay, okay, I know I am drunk. Let me go, and I will set up some of my friends for you, something to that, very close to 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 e e that effect, sir. Q Okay. Then what happened? A Upon arrival at Booking, Mr. Lerew was escorted upstairs. He was read the implied consent form -- he was released to the custody of the Booking Center staff. They started the background checks on Mr. Lerew. Q Let me back you up. You said he was read the implied consent. Is that what you said? A Yes, sir. He was read the implied consent. He was first taken into the Booking Center, formally released to the custody or turned over to the custody of the Booking Center staff. They started the background investigation on him. They searched him again, secured his personal belongings. He was placed in the processing chair right inside the door. I read Mr. Lerew his DL-26. MR. KABUSK: May I approach the witness, Your Honor? THE COURT: Certainly. BY MR. KABUSK: Q I want to show you what has been marked Subexhibit No.2 in the State's Exhibit No.1. A Yes, sir. Q Would you identify that document, please? A Yes, sir. This is the DL-26 that I read to Mr. Lerew on the evening of 18 September. 10 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 e e Q Would you read aloud what you read to him? A Yes, sir. Mr. Lerew, my name is Officer Swartz of the Shiremanstown Police Department. Please be advised that you are under arrest for driving under the influence of alcohol or controlled substances in violation of Section 3802 of the Vehicle Code. I am requesting that you submit to a chemical test of breath. It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least one year. In addition, if you refuse to submit to the chemical test, and you are convicted of, plead guilty to, or adjudicated delinquent with respect to violating Section 3802(a) of the Pennsylvania Vehicle Code because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) of the Vehicle Code, which includes a minimum of seventy-two hours in jail and a minimum fine of $1,000.00. It is also my duty as a police officer to inform you that you have no right to speak with an attorney or anyone else before deciding whether to submit to testing. And any request to speak with an attorney or anyone else after being provided these warnings, or remaining silent when asked to submit to the chemical testing, will constitute a refusal, resulting in suspension of your operating privileges and other enhanced criminal sanctions 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 e e if you are convicted of violating Section 3802(a) of the Pennsylvania Vehicle Code. Q Thank you. And you read that to him word for word? A Yes, sir. MR. KABUSK: May I approach the witness, Your Honor? THE COURT: Sure. BY MR. KABUSK: Q Then what happened? A Mr. Lerew asked several questions about -- well, he kept interrupting me during the reading. I would have to back up and start each paragraph over again until I got through with that paragraph during these interruptions. After I completed reading it, I asked him if he understood. He said he did not understand certain portions of it, and I went back and clarified those portions for him, reading them again. After that was done, Mr. Lerew -- and I asked him again, Mr. Lerew, again, if he understood and was willing to sign the form. At that point he said he wished to examine it and read it for himself. I put the form on the desk and let Mr. Lerew read it for himself. He was given approximately five to ten minutes to examine the form. At which point he finally did submit and voluntarily signed 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 e e the form. Q Okay. Now, earlier you said when you were reading the DL-26 he kept on interrupting? A Yes, sir. Q What sort of interruptions was he -- how was he interrupting you? A Several times he tried to stand up. We would have to ask him to be seated in the chair again. He would just make -- I don't know if the word -- snide comments. He would just keep interrupting the reading of the form, sir. Q And what sort of questions was he asking? You said then he asked questions? A Yes, sir. He was asking what does that mean. How long will I get suspended for. Will this go to my PO. Will I go back in. Just other questions along that nature, sir. Q And how did you respond? A I kept trying to tell him to be patient. We will answer those questions as soon as I get done with this form. Q Then you stated he signed the form? A Yes, sir. Q Was that his signature on the form? A Yes, sir. Q Then what happened after he signed the form? 13 e e 1 A After I got done reading the form to him, one 2 of the Booking Center officers took custody of Mr. Lerew. 3 Mr. Lerew asked him if he could use the bathroom. The 4 officer escorted Mr. Lerew to the bathroom and told him 5 before he escorted him to the bathroom, he told him don't 6 shut the door. Don't flush the toilet. Don't put anything 7 in your mouth. Don't drink anything. He escorted him to 8 the bathroom. It was around the corner. 9 Myself and the other Booking Center officer 10 heard a commotion. We went around the corner and observed 11 the officer bringing Mr. Lerew out of the bathroom, stating 12 that Mr. Lerew was drinking from the faucet. 13 Mr. Lerew was brought back into the Booking 14 Center -- the booking area. He was sat in the booking 15 chair. The twenty minute wait period started again. Mr. 16 Lerew, after approximately ten to twelve minutes, tried to 17 make himself vomit, continuously burping, trying to make 18 himself vomit. We had to stop and check his mouth again, 19 restart the twenty minute wait period. 20 Mr. Lerew continued to burp, inducing 21 burping, not just naturally. Mr. Lerew was informed that if 22 he continued to interfere with the twenty minute wait 23 period, he would be taken to the hospital for a blood test. 24 Mr. Lerew calmed down, sat in the chair calmly for twenty 25 minutes. The processing continued. 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 e e When the twenty minute period was up, Mr. Lerew was asked if he was going to submit to the breath test at that point. And his statement I believe very closely it resembles, fuck you, I ain't taking no damn blood test. Q Was that you that asked that? A If he was ready to submit to the test? Q Yes. A Yes, sir. Q Okay. Then what happened? A Shortly after that we got the call back from Mr. Lerew's parole officer, who, when informed of the charges against him, lodged a detainer. Mr. Lerew became instantly very combative. He, I don't want to say jumped, but he tried to energetically leave his chair. He had to be restrained by all three members, myself and both members of the Booking Center staff. He was handcuffed, placed in a holding cell. We went back into the Booking Center to continue the paperwork. We heard a banging corning from the booking cell or from the holding cell rather. When we went around the corner to the holding cell, Mr. Lerew was banging his head against the bars, and made a statement to the effect that I am going to tell my lawyer you kicked the shit out of me. Mr. Lerew slipped his cuffs in the front. We 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 e e recuffed him in the rear and put him in leg shackles. And at that point I pointed out the camera on the wall to him, and actually read the warning on the wall, video and audio recordings are being made. And informed him that, yes, sir, you can see the camera right there, pointed to it. At which point he became docile, curled up in the booking cell and started to cry. Q Did he ever submit to the requested test? A No, sir. Q Now, when he told you something to the effect of f-u, I ain't taking no blank test, what did you do then? A I immediately stopped. During that process, as soon as the twenty minute wait period was successfully completed, one of the Booking Center officers was there to read him his Miranda Rights, read him another form. That officer was in the process of doing that when Mr. Lerew stated what he stated. That officer immediately stopped and looked at me, and asked me if we should continue. And my comment to the Booking Center officer was that's as clear-a-cut refusal as I have ever heard. Stop immediately. Put him in a booking cell. Q Okay. Once again, did he ever submit to the requested test? A No, sir. MR. KABUSK: No further questions. 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 e e CROSS-EXAMINATION BY MR. MANCKE: Q Officer, when you brought my client to the 'Booking Center, did he request to make telephone calls repeatedly? A Yes, sir, he did. Q And did he tell you who it was he wanted to call? A No, sir. He did not. Q What was the response by you to his request to make telephone calls? A He was informed that as soon as Booking was finished, he would be allowed to call anyone he chose. Q Was he told that he couldn't make a call at that time? A Yes, sir. He was told at this time you cannot make a call. We need to complete booking. When booking is completed, you will be allowed to call anyone you choose. Q Had you given him his Miranda warnings before he requested to make telephone calls? A No, sir. I did not. Q Now, at the point when you read him the DL-26, you were using a form DL-26 with parentheses 12-03 on it, is that correct? 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 e e A Yes, sir. (Whereupon, Defendant's Exhibit No.1 was marked for identification.) Q At the time you read him that, were you aware of PennDOT form DL-26 with the dates (2-05)? A No, sir. I was not. Q Who supplied the DL-26 to you? A They are kept on file in processing packets at the Booking Center, sir. When we bring a suspected 3802 into the Booking Center, a manila envelope packet with all the relevant paperwork in it, we remove it from the file, and the paperwork included in that file is what is used to process them. Q And on the date of September 18th, '05, were you aware that there was a PennDOT form DL-26 dated February 'OS? A No, sir. I was not. Q Did you read to him anything other than what was on the DL-26, dated December '03, to Mr. Lerew concerning penalties that he might have if he refused? A No, sir. I read paragraphs one through four verbatim from the 1203 statement, sir -- or form, sir. Q Now, after he signed the DL-26, was he given a chance to take a chemical test? A Yes, sir. The twenty minute wait period was 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 e e started three or four times before it was successfully completed. At which point he was -- the last twenty minute wait period was completed. He was given an opportunity to take the test. At which point he made the statement previously stated. Q Now, did he ever agree to take the chemical test? A Yes, sir. After he was placed in the cell. After he became combative, he was placed in the cell, was informed of the camera, and finally calmed down, he started pleading to take the test. At which point he was informed, sir, you have already stated you do not wish to take the test. I am not allowed to let you take the test at this point. It would be a violation of your rights. Q And that's what you told him as to the reason why you wouldn't allow him to take the chemical test? A I am sorry, sir. Q Is that the reason why you told him you wouldn't allow him to take the chemical test? A After he stated the fuck you, I ain't taking the test, and became combative and was placed in the cell, yes, sir. It was my training in the -- it has been my experience in DUI training that once a defendant states they will not take the test, any further compelling to take the test or allowing to take the test after that is not allowed. 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 e e Q And was his agreement to take a chemical test within two hours of the time that he drove, operated or was in actual physical control of the movement of a motor vehicle? A Yes, sir. Q And do you know what time it was that he agreed to take the test? A No, sir. I do not. Q But you know it was within the two hours? A The initial request was within the two hours. Once he was in the booking cell and requested -- after he refused the second request, I am not aware of what time that was, no, sir. I cannot sit here and tell you that was within the two hour period. Q Do you have in your records there when it was you left the Booking Center? A It would be in my police report, sir. Do you have a copy of my report, sir? Q I have what the District Attorney's Office gave me, but I don't know that your log was in that. A I do not have the documentation with me, sir. Q Now, you had indicated that my client was being audiotaped and videotaped. Can you tell me what happened to the audiotape and the videotape? A The District Attorney's Office would have 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 e e that, sir. Q You know that there was one done, is that right? A Well, there is a camera on the wall and a sign there, sir. Q And you had told him that he was being audiotaped and videotaped, is that right? A Yes, sir. I read the statement -- the posted sign on the wall. I read that sign to him. The sign states warning, audio and video recordings are being made. Q And had he been read the warnings by the booking officer in your presence? A Miranda, sir? Q No. The audio and visual warnings. A Yes, sir. MR. MANCKE: That's all I have. REDIRECT EXAMINATION BY MR. KABUSK: Q Officer Swartz. A Yes, sir. Q After he told you f-u, he wasn't going to take the test, and after he became combative, you say he settled down? A Yes, sir. Q And that was in the holding cell? 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 e e A Initially, no, sir. He was in the Booking in the wooden chair directly inside the door of the old Booking Center. He became violent when his parole officer called back, earlier when we started the processing, we ran his background and determined that he was on parole. They called the on-call parole officer and had to leave a message. When the on-call parole officer called back, and stated Mr. Lerew was having a detainer lodged against him, that's when he became combative and had to be restrained and placed in the holding cell. Q Then he calmed down after that? A Temporarily, yes, sir. Q Now, is that the period of time where he requested to take the test? A Yes, sir. Q Did you ask him to take the test? A No, sir. Once he stated he wasn't taking the test, we stopped interaction as much as possible with Mr. Lerew. Q So you didn't ask him again after he calmed down would he take the test? A No, sir. Q He just asked you? A Yes, sir. Q And you told him.. . 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 e e A That, no, sir, once his initial statement of refusal was on record, we could not allow him to take the test after that. Q So you didn't ask him again if he would submit to the test? A No, sir. Q Now, regarding the audio visual tape, do you know if a recording exists of the incident? A I have no idea, sir. MR. KABUSK: MR. MANCKE: THE COURT: MR. KABUSK: No further questions. I have nothing further. Thank you. If I may get my other witness, Your Honor. Whereupon, JOSHUA SHEAFFER, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. KABUSK: Q Mr. Sheaffer, please state your name, and spell your last name for the record? A Joshua Sheaffer, S-h-e-a-f-f-e-r. Q Where are you employed? A Cumberland County Prison. Q What are your duties? A I work in the Records Department doing the 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 e e intakes for the prison and processing of persons arrested in Cumberland County. Q Were you involved in the investigation of an alleged incident of DUl on or about September 18th, 2005? A Yes. Q At that time where were you employed and what were your duties? A At that time I was employed by the Cumberland County Prison, working out of the Central Processing Department on the third floor of the courthouse. Q Could you please tell us your role in this incident? A I was the processing officer for the DUl. Q And are you a certified breath test operator? A Yes, sir. Q Did the petitioner inform you of any physical or medical conditions that may have prevented him from properly performing the test? A No. Q Did the petitioner exhibit any symptoms that would indicate the presence of a physical or medical condition that may have affected his ability to perform the test? A None that I know of. Q Would you please explain what happened once 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 e e he was brought into the Booking Center? A Once he was brought in, we did the mouth check to begin the twenty minute observation. During which time the defendant needed to use the bathroom. He was taken there and observed. After using the bathroom he did take several drinks of water. At which point a mouth check was conducted again. And the twenty minute observation was restarted. Sometime after that it appeared that the defendant was either trying to vomit or had vomited into the trash can. At which point we did another mouth check and restarted the twenty minute observation again. Q Then what happened? A At that point Officer Swartz began to read the defendant the implied consent. Q And what happened then? A During this the defendant was up and down in his behavior, from cooperative to being agitated. The longer that it went on with the reading of the implied consent, the more agitated the defendant became. And at one point he stated that I am not going to take the breath test. Q Then what happened? A Officer Swartz at that point deemed it a refusal. Q Did he ever submit to the requested test? 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 e e A No. Q What happened after that? A The defendant continued with his agitated state, became aggressive, at which point for safety of the officers working in the center he was placed in restraints and placed into a holding cell. Q Did he ever submit to the requested test? A No. Q Do you know if there is a audio visual recording of the incident? A Not that I know of. MR. KABUSK: No further questions. CROSS-EXAMINATION BY MR. MANCKE: Q When my client was brought to the Booking Center, was there a check to find out whether or not he was on probation? A Yes. Q And what did that check reveal? A It revealed that the defendant was on probation through Cumberland County. Q And did it reveal what it was for? A It should have. At this time I cannot recall what it was for. Q Do you recall whether it was for a DUI? 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 e e A It may have been. Like I said before, at this time I cannot recall what he was on probation for. Q And when he was brought to the Booking Center, did he request repeatedly to make a telephone call? A Yes. Q And do you know who it was that he wanted to call? A I cannot recall who he wanted to call. Q And when he made that request, what was he told? A He was told that not at this point you cannot make a phone call. Q Now, we have heard testimony that the Booking Center supplies the DL-26 forms to the police officers when they arrive, is that correct? A There are DL-26 forms there if needed for the officers. Q And in this particular case did you supply the DL-26 form to the officer? A I believe I did. Q Now, the DL-26 that was used in this case is form DL-26 (12-03). Is that the form as you recall was given to my client? A It looks like the forms that we had in the Center at the time. 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 e e Q Now, were you aware of what we have marked as Defendant's Exhibit No.1, and that being a DL-26 dated February '05? A I knew that there was a new February '05 version. I did not know at that time which form we had in the center. Q Well, on the date this incident occurred, 9/18/2005, were you aware of the DL-26, dated February '05? A I should have been. Q Why should you have been aware of that? A Because we were originally made aware of updates to the forms through the supervisors of the department at the time. Q So if the form came out in February '05, you would have been made aware of that form by your supervisors at that time? A Yes. Q Why was it then that the February '05 form was not used? A I do not know, sir. I am not the one that made the copies of the forms to be put out for use by the officers. Q But you knew that there was such a form? A Yes. Q Now, as it relates to this audio and visual 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 e e form -- or audio visual tape, and you said that you weren't aware whether there was one or not, is that correct? A As far as I know there was not one done because of the security cameras that recorded the Center that are not the dedicated DUI tape are recycled -- were recycled at a time that I think at approximately every thirty days. Q Well, was there one done? A There was not a DUI processing tape done. Q Did you prepare the Cumberland County District Attorney's Office Central Processing Intake and Chain of Evidence form in this case? A I am not exactly sure if I know what you are referring to, sir. Q You are not aware of an intake and chain of custody form? A That's what the front sheet of the DUI processing packet is. That's why I want to make sure exactly what you are referring to, sir. (Whereupon, Defendant's Exhibit No.2 was marked for identification.) Q I am going to show you what we have marked as Defendant's Exhibit No.2, and ask you whether you can identify that form? A Okay. The front page of the DUI packet, 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 e e which would be the intake form, yes. Q Who prepared that? A That would have been me, sir. Q Well, I am going to look at where it says video. What indicates whether there was a video or not? A Q It is marked yes there. Would that refresh your recollection that there was a videotape? A That would have been an oversight on mine going through the paperwork, because there was not a DUI videotape that was done. Q Well, doesn't it even show that that was placed into custody? A The evidence custody part there on the bottom is for the whole packet of information, not just a videotape. Q And here on video where it says yes, you are saying that that's wrong? A That was a mistake made on my part, sir. Q Why wasn't an audiotape and videotape done? A At the time before we were able to -- we were not able to move the defendant to the location where we do the audio and video recording for the DUI processing due to his agitated and aggressive behavior. Q Was he ever placed next to the breath test 30 1 2 3 device? e e 4 chemical test? 5 6 A Q Not that I recall. Now, did my client ever agree to take the A After Officer Swartz had deemed it as a I believe there was a point where the defendant 7 said that he would take a breath test. 8 Q Was he given the opportunity to take the 9 breath test? 10 A No. 11 MR. MANCKE: That's all I have. 12 REDIRECT EXAMINATION 13 BY MR. KABUSK: refusal, 14 15 16 17 18 19 20 21 22 23 24 25 Q Regarding the DL-26 form that was read, are you familiar with the form? A Yes. Q Did Officer Swartz read the form paragraphs one through four in their entirety? He read them to him, however, during the he was interrupted several times by the A process of it defendant. Q A Q But did he read the form? Yes. Has it ever happened that the operator, the videotape operator, or the equipment malfunctioned that the 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 e e operator made a mistake or that the equipment malfunctioned? A Yes. Q Could that potentially be an explanation for -- MR. MANCKE: Your Honor, I don't know that he can answer that question. It assumes facts which the officer has already said he doesn't know. THE COURT: Well, I understand the question is whether it is a possibility. I don't know what weight I will give that. BY MR. KABUSK: Q When do you generally start taping the procedure? A After the twenty minute observation has expired, right before the performance of the breath test. Q So you would tape the performance of the test, is that correct? A Yes. Q But he never took a test, is that correct? A That's correct. Q Now, regarding the question of whether -- I believe you were asked whether the petitioner asked if he could take -- did the petitioner then ask if he could take a test? A As I recall, the defendant stated that, after 32 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 e e 1 it was deemed a refusal, that he would take the breath test. 2 Q But did either you or Officer Swartz ask him 3 if he would submit to the test after the initial refusal? A Not that I recall. MR. KABUSK: MR. MANCKE: THE COURT: MR. KABUSK: No further questions. Nothing further, Your Honor. Thank you. I move for the admission of what's been marked Commonwealth's Exhibit No.1. And additionally I would refer the Court to the driving record, to show that there is a prior offense, a DUI offense, explaining the suspension for eighteen months. THE COURT: Okay. Any objection to the exhibit? MR. MANCKE: No objection. THE COURT: We will make it part of the record. MR. MANCKE: Mr. Lerew. Whereupon, IAN H. LEREW, having been duly sworn, testified as follows: 21 DIRECT EXAMINATION 22 BY MR. MANCKE: 23 Q Will you state your full name, please? 24 A Ian Lerew, L-e-r-e-w. 25 Q And your residence address? 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 e e A 1835 Creekview Drive, New Cumberland, Pennsylvania. Q And when you were taken to the Booking Center, did you make repeated requests to make a phone call? A Yes, I did. Q And what was the response to your request? A I was not allowed to make any phone calls. Q Did they tell you why at that point? A No. Q Now, it has been introduced, the DL-26, and I think you saw a copy of it. Is that your signature on the DL-26? A Yes, it is. Q And can you tell the Court what you recall as to when you signed the DL-26? A I signed the DL-26 after it was deemed a refusal. Q After you had signed it, were you given an opportunity to take the test? A No. I was not. Q Now, there has been testimony that you had in the cell indicated that would you take the breath test? A That is correct. Q And how many times did you say that you would take the breath test? 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 e e A I had made a few requests. Q And was that within two hours after you drove, operated or were in actual physical control of the movement of a motor vehicle? A That was within two hours. Q Now, what was the response that the officer gave you to your request to take the chemical test? A I was not allowed to take the test. MR. MANCKE: That's all I have. CROSS-EXAMINATION BY MR. KABUSK: Q Mr. Lerew, do you recall being arrested by Officer Swartz? A Yes, I do. Q Do you recall being handcuffed and transported to the Booking Center? A Yes. Q Do you recall Officer Swartz reading to you the PennDOT form DL-26? A Yes, I do. Q Do you recall being warned of the consequences of refusing? A I was not told of any consequences. Q Do you recall Officer Swartz requesting you to submit to the breath test? 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 e e A Yes. Q And do you recall what your response was? A I did not want to take the breath test at first. Q Do you recall what you told him? A No. I do not recall my exact words. Q Did you ever submit to the test as requested by Officer Swartz? A Not at the time. MR. KABUSK: No further questions. THE COURT: Anything else? MR. MANCKE: I have nothing further, Your Honor, other than to move for the admissibility of our two documents, Exhibits 1 and 2. MR. KABUSK: No objection. THE COURT: They are admitted. Do you have any rebuttal testimony, Mr. Kabusk? MR. KABUSK: No, Your Honor. THE COURT: Where would you like to go from here? Do you have anything you would like to say? MR. MANCKE: Yes, Your Honor. I just wanted to indicate to the Court that we are preserving all of the issues that were raised in our petition, and note that the issue concerning whether Miranda warnings are required 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 e e before PennDOT can suspend for a refusal, that issue is pending before the Supreme Court in the Whitmer (phonetic) versus Penn DOT at 880 A.2d THE COURT: Tell you what. Back up. Which numbered paragraph is it, and I may just go ahead and mark this in pencil. The right to counsel issue? MR. MANCKE: THE COURT: Yes. That's L? MR. MANCKE: Yes. THE COURT: MR. MANCKE: Among others. And K. And then as it relates to the constitutionality in N, the overall constitutionality of Act 24. THE COURT: In terms of the 5th amendment in particular. And that's before the Supreme Court? MR. MANCKE: That is correct. The Commonwealth Court ruled adversely to the position that we are taking in this case in the Whitmer versus PennDOT case. To my knowledge -- THE COURT: You were about to give me the cite on that. MR. MANCKE: Yes. 880 A.2d 716, 2005, of Commonwealth Court. The Commonwealth Court then in a subsequent opinion granted a supersedeas in that case for the Supreme Court to consider the issue. And that 37 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 e e supersedeas opinion is at 889 A.2d 638, also 2005, Commonwealth Court. THE COURT: And the underlying argument, as I understand it to be, is that because the new DUI law results in enhanced penalties -- MR. MANCKE: THE COURT: The criminal penalties. The criminal penalties, that there would be arguably a right to speak to a lawyer about whether or not to refuse or not because of the penalties. MR. MANCKE: That is correct. And, in addition, as it relates to multiple offenders, it may affect a person's right to a jury trial as well. Because in the second offense, tier one and two, it is an ungraded misdemeanor, no right to a jury trial. And tier three, second offense, has a right to a jury trial, and is graded as an M-l, up to five years as a criminal penalty. So it is not only the penalty issue, it also affects a person's right to a trial by jury. THE COURT: Which would be an argument facially, but as applied to this petitioner, does that also have significant application? MR. MANCKE: Well, we would say that it would in the sense that they have put him into the refusal setting which automatically gave him a jury trial. If he wanted a nonjury trial, then he should have taken the test and then 38 e e 1 taken his chances that he would have ended up in one or two 2 tier. 3 THE COURT: Oh, I see, he is now highest rate 4 because he refused? 5 MR. MANCKE: Correct. 6 THE COURT: I see. I follow. 7 MR. MANCKE: And we don't have the right to 8 waive a jury trial now unless the District Attorney agrees 9 to it. So there is implications even beyond the penalty. 10 THE COURT: I am so glad this DUI law has 11 been clarified and simplified for all of us, a great piece 12 of legislation. 13 MR. MANCKE: And then as it relates to the 14 DL-26 and the sufficiency, and the reason why we introduced 15 -- well, they introduced the one, we introduced the other, 16 there are differences between the two as it relates to 17 telling a motorist about the enhanced penalties for multiple 18 offenders. And the issue 19 THE COURT: Surely not as a result of the 20 opinion that I wrote on the matter? 21 MR. MANCKE: It may have everything to do 22 with that, Your Honor, but I will let Mr. Kabusk address 23 that. 24 THE COURT: I will read the February '05 25 version with great interest. 39 e e 1 MR. MANCKE: So that case is Weaver versus 2 PennDOT. And that's -- 3 THE COURT: What paragraph are you talking 4 about? 5 MR. MANCKE: That relates to the sufficiency 6 of the warnings under 0, as to whether they were adequate. 7 THE COURT: That's DL-26? 8 MR. MANCKE: That's correct. And G also, and 9 I, and J. And the issue on the adequacy of a DL-26 in a 10 multiple offender situation was decided adversely to our 11 position by the Commonwealth Court in Weaver versus PennDOT 12 at 873 A.2d, page 1, Pa. Commonwealth 2005. The appeal, 13 however, was granted by the Supreme Court at 890 A.2d 1061 14 Pennsylvania Superior Court, 2005. 15 THE COURT: That's Superior Court? 16 MR. MANCKE: That's Pennsylvania Supreme 17 Court. If I said Superior, I meant Supreme, 2005. And it 18 is my understanding that was actually argued but not decided 19 at this point. 20 21 22 23 24 25 THE COURT: Did you argue it, Mr. Kabusk? MR. KABUSK: No, Your Honor. THE COURT: They don't let you do that? MR. KABUSK: No. THE COURT: You are stuck with us. MR. MANCKE: And then as it relates to the 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 e e overall constitutionality of Act 24 of 2003, the case of Commonwealth versus McCoy (phonetic) , which was decided by the Superior Court THE COURT: Which argument are you talking about? MR. MANCKE: Those would be items N, small i, ii, iii, iv, v and vi. THE COURT: Those you said, I am sorry, are covered by what? MR. MANCKE: The case of Commonwealth versus McCoy by the Superior Court, and I don't have that cite, which is embarrassing since I was the one that lost that case, and maybe that's why I don't want to give the cite. THE COURT: MR. MANCKE: THE COURT: But it is Superior Court? Superior Court. It had to do with the prosecution of a DUI case and not a license suspension? MR. MANCKE: That is correct. But we raised those items that are listed in this appeal. THE COURT: Do you want to just send that to me in a letter or call my secretary? MR. MANCKE: Yes, sir. THE COURT: That would be helpful. MR. MANCKE: And as it relates to that case, we have filed the petition for allowance of appeal. And 41 e e 1 that has not been acted upon by the Supreme Court. 2 THE COURT: That's pending. 3 MR. MANCKE: Having said that, we would 4 request the Court to leave the record open in this case 5 pending the decisions by the Supreme Court in those pending 6 cases, so that my client is not faced with having to also 7 file an appeal to the Commonwealth Court and a supersedeas 8 because of the costs involved. 9 THE COURT: Can we go down then a few of 10 these other paragraphs just to see what is not well, you 11 say you have waived nothing, but taking a look at some of 12 the things in paragraph four the issues that you have 13 just alluded to are the issues, right? 14 MR. MANCKE: Yes. With the addition -- 15 THE COURT: I mean, for example, no valid 16 timely request to take a chemical test, the officer 17 requested the test within two hours. 18 MR. MANCKE: It would be a case of whether or 19 not in terms of my client's testimony, he says that he 20 was read the DL-26 and signed that later in time. And, 21 therefore, it is our position that he should have been given 22 the opportunity after he signed it to take a chemical test. 23 The officer has said that it was a different 24 set of facts, that he requested it, and that my client 25 refused. Our position is that if the Court believes my 42 . e 1 client's version, then he should have been given an 2 opportunity to submit to the chemical test after he signed 3 it, because the form itself indicates that. 4 THE COURT: In what regard? In the very end 5 it says and now I am going to ask you whether you take the 6 test or not... 7 MR. MANCKE: It says on it in capital letters 8 underlined officer note. I don't think that's changed, but 9 I want to be accurate on this. Officer Note: The refusal 10 to sign this form is not a refusal to submit to the chemical 11 test. You must still give the motorist an opportunity to 12 take the chemical test after reviewing this form. So the 13 Court would have to decide that factual issue as to the 14 timing of the request to take the chemical test and the 15 refusal. 16 THE COURT: Are you conceding if he signs the 17 form and then refuses the test, he can't change his mind and 18 say I decide to take the test? 19 MR. MANCKE: No. I am not conceding that, 20 because my client's indication was that he was willing to 21 take it within two hours. And we say that under the new law 22 two hours is critical, that my client should be given the 23 opportunity if he consents as long as it was within two 24 hours. 25 THE COURT: Well, that raises an interesting 43 e e 1 question then, because it could be that within two hours the 2 person would refuse and then leave the Booking Center and be 3 halfway to jail and then change his mind. 4 MR. MANCKE: But that didn't happen in this 5 case. 6 THE COURT: I know. In this case the 7 Breathalyzer was in the next room. 8 MR. MANCKE: And there is no indication that 9 he had consumed any alcohol in the interim period. 10 THE COURT: But there are no cases on 11 changing their mind, I wouldn't think? 12 MR. MANCKE: Not under the new law and not 13 under the two hour rule. There are cases in the past that 14 clearly indicated that if a person changed their mind later 15 that that would not negate the refusal. But under the new 16 law there is not a case yet where the agreement was within 17 the two hours to take the chemical test. 18 THE COURT: And then that's why you say in C, 19 the petitioner agreed to take the test? 20 MR. MANCKE: That's correct. 21 THE COURT: I think I understand how all 22 these paragraphs relate. Okay. Mr. Kabusk, do you want to 23 say anything on this? 24 MR. KABUSK: I guess just very briefly 25 regarding -- 44 e . 1 THE COURT: Yes. Mr. Mancke really pointed 2 to the authorities, at least for today, to support your 3 position. 4 MR. KABUSK: And that's what I would point 5 to, Your Honor. I would say that the Commonwealth Court or 6 the Superior Court has spoken and the law has settled 7 somewhat -- 8 THE COURT: And what about holding my 9 decision in abeyance for the record? 10 MR. KABUSK: That's 11 THE COURT: And see if I retire before he 12 gets his license suspended. 13 MR. KABUSK: That's why I could not concur 14 THE COURT: Could not concur. You have 15 chosen your words very carefully. In other words, you are 16 leaving this to me? 17 MR. KABUSK: Yes, Your Honor. 18 THE COURT: Very well. Okay. I understand. 19 Thank you, gentlemen. Unless there is anything else? 20 MR. MANCKE: Nothing further. 21 (End of proceedings) 22 23 24 25 45 e . CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. ~~t~ Barbara E. Graham Official Stenographer ----------------------------- The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. :(v- I ~ D te '2f11O C, J. District 46 - IAN H. LEREW vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-5805 CIVIL COMMONWEALTH OF P A DEPARTMENT OF BUREAU LICENSING AND NOW, this APPEAL FROM LICENSE SUSPENSION ORDER z tt. day of December; 2006, the appeal ofIan H. Lerew from the suspension of his driver's license is DISMISSED. ~ Mancke, Esquire For the Appellant BY THE COURT, AIL t'1 \1 .C' 'l ., Iii..) 6l J3G %ml ).,' I' " " ". ....'.ILL '0 1"'\<' I' "..C' " -,\",{ ._"(_~~.~)d i~<' ,...J.J. 32':\.:'C:--Cy:nH