HomeMy WebLinkAbout02-3029RANDALL CARL VATHIS,
Petitioner
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO.
COMMONWEALTH OF PA : DRIVERS LICENSE APPEAL
DEPARTMENT OF TRANSPORTATION,:
Respondent :
MOTION FOR HEARING
AND NOW, this / { ~ day of June 2002, the Petitioner, Randal Carl Vathis, by and
through his attorney, Austin F. Grogan, Esq., avers the following:
1. The Petitioner was served with a Notice of License Suspension dated May 30,
2002 arising out of an alleged refusal to chemical test on March 9, 2002 (copy of notice
attached);
2. The Petitioner disputes the suspension and requests a Hearing.
WHEREFORE, the Petitioner requests this Honorable Court to schedule a Hearing and
dismiss the Notice of License Suspension.
Respectfully submitted,
Austin F. Grog~n, FflqU'Lr~
24 North 32nd
Camp Hill, PA 17011
(717) 737-1956
Attorney for Petitioner
I.D. #59020
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
MaiI Date: MAY $0, 2002
RANDALL CARL VATHIS
1413 SILVERCREEK DR
MECHANICSBURG PA 17055
WID ~ 021436111850568 001
PROCESSING DATE 05/23/2002
DRIVER LICENSE ~ 15389992
DATE OF BIRTH 02/29/1952
Dear MR. VATHIS:
This is an Official Notice of the Suspension of your Driving
Privilege as authorized by Section 1547 of the Pennsylvania
Vehicle Code. As a result of your violation of Section 1547
of the Vehicle Code, CHEMICAL TEST REFUSAL, on 05/09/2002:
Your driving privilege is SUSPENDED for a peP~od of 1
YEAR(S) e~ect~ve 07/0q/2002 at 12:01 a.m.
WARNING: If you are convicted of driving while your
license is suspended/revoked the Penalties will be a
MINIMUM of 90 days imprisonment AND a $1,000 fine AND
your driving privilege will be suspended/revoked for
a MINIMUM 1 year period
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 07/04/2002. You may
surrender these items before, 07/04/2002, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU MAY NOT RETAZN YOUR DRZVER'S LZCENSE FOR ZDENTZFZCATZON
PURPOSES. However, you may apply for and obtain a photo
identification card at any Driver License Center for a cost
of $9.00. You must present two C2) 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 wlll not recelve credlt toward servlng
untlZ we receive your license(s). Complete
steps to acknowledge this suspension.
any suspension
the following
021~$61118~0568
i, Return all current Pennsyivania driver's licenses,
iearner's permits and/or camera cards to PennDOT. If
you do not have any of these items, send a sworn nora-
r/zed letter stating you are aware of the suspension of
Your driving privilege. You must specify in ~our letter
why you are unable to return your driver's license.
Remember: You may not retain your driver's license for
identification Purposes. Please send these items to:
Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8695
2. Upon receipt, review and acceptance of your Pennsylvania
driver's license(s), 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)(q)
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:
i. Return the enclosed Application for Restoration. The
amount due is listed on the application.
2. Write your driver's iicense 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.
021456111850568
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) w/thin 30 days of the mail
date, NAY 30, 2002, of this letter. X~ you file an appeal
in the County Court, the Court will give you a time-stamped
cePtl~ted copy o~ the appeal. In or=er for your appeal to
be valid, you must send this time-stamPed certified 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 OFFZCZAL NOTZCE OF SUSPENSZON. You
must return all current Pennsylvania driver license products
to PennDOT by 07/04/2002.
Sincerely,
Rebecca t. Bickley, Director
Bureau of Driver Licensing
INFORMATION 7:00 a.m. to 9:00 p.m.
IN STATE 1-800-932-4600 TDD IN STATE
OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE
WEB SITE ADDRESS www.dat.state.pa.us
1-800-228-0676
717-391-6191
RANDALL CARL VATHIS,
Petitioner
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v. : No.
COMMONWEALTH OF PA : DRIVERS LICENSE APPEAL
DEPARTMENT OF TRANSPORTATION,:
Respondent :
ORDER
AND NOW, this d~bCd day of ~ 2002, upon consideration of the
attached Motion, a hearing is scheduled~for the ,~L9 ~ day of ~ 2002, in
Courtroom ~ at~2td4.m, at the Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT
RANDALL CARL VATHIS,
Petitioner
VS.
COMMONWEALTH OF PA.
DEPT. OF TRANSPORTATION,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
: 02-3029 CIVIL
:
: CIVIL ACTION - LAW
:
: DRIVERS LICENSE APPEAL
ORDER
AND NOW, this /Os day of October, 2002, after hearing and careful
consideration of the testimony adduced, while we would find that, at the time of his alleged
refusal, the petitioner was in an altered mental state and thus did not knowingly refuse a blood
test, we do not believe, under the current state of the law, that the petitioner can meet his burden
of proof without medical testimony. See Com., Dept. of Transportation, Bureau of Driver
Licensing v. Derharnmer, 118 Pa. Cmwlth. 364, 544 A.2d 1132 (1988). The appeal of the
petitioner from the suspension of his driver's license is DENIED.
/Austin F. Grogan, Esquire
For the Petitioner
George Kabusk, Esquire
For PennDOT
:rim
BY THE COURT,
KyA. Hess, J.
RANDALL CARL VATHIS,
Petitioner
v. : NO. 02-3029
COMMONWEALTH OF PA
DEPARTMENT OF TRANSPORTATION,:
Respondent :
AND NOW, this
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DRIVERS LICENSE APPEAL
PETITION FOR RECONSIDERATION
I ~'7~ day of October 2002, the Petitioner, Randal Carl Vathis, by
and through his attorney, Austin F. Grogan, Esq., avers the following:
1. The Defendant was cited with DUI arising out of a car accident;
2. The Commonwealth alleges that the Defendant refused to submit to a blood test
while the Defendant was being treated at the hospital;
3. This Honorable Court issued an Order denying the Petitioner's request due to the
lack of medical testimony.
WHEREFORE, the Defendant respectfully requests this Honorable Court to schedule a
Re-Hearing on the matter to receive medical testimony as to the Defendant's medical state at the
time of the accidem.
Respectfully submitted,
Austin F. Grogan, EsqOire]
24 North 32nd Street
Camp Hill, PA 17011
(717) 737-1956
Attorney for Petitioner
I.D. #59020
RANDALL CARL VATHIS,
Petitioner
VS.
COMMONWEALTH OF PA.
DEPT. OF TRANSPORTATION,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
02-3029 CIVIL
:
: CIVIL ACTION - LAW
:
: DRIVERS LICENSE APPEAL
ORDER
AND NOW, this /O a day of October, 2002, after hearing and careful
consideration of the testimony adduced, while we would find that, at the time of his alleged
refusal, the petitioner was in an altered mental state and thus did not knowingly refuse a blood
test, we do not believe, under the current state of the law, that the petitioner can meet his burden
of proof without medical testimony. See Com., Dept. of Transportation, Bureau of Driver
Licensing v. Derhammer, 118 Pa. Cmwlth. 364, 544 A.2d 1132 (1988). The appeal of the
petitioner from the suspension of his driver's license is DENIED.
Austin F. Grogan, Esquire
For the Petitioner
BY THE COURT,
KC Hess,' J.
George Kabusk, Esquire
For PennDOT
:rim
RANDALL CARL VATHIS,
Petitioner
VS.
COMMONWEALTH OF PA.
DEPT. OF TRANSPORTATION,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
: 02-3029 CIVIL
:
: CIVIL ACTION - LAW
:
: DRIVERS LICENSE APPEAL
IN RE: PETITION FOR RECONSIDERATION
ORDER
AND NOW, this ~' 8' day of October, 2002, upon consideration of the attached
Petition for Reconsideration, our order of October 10, 2002, is VACATED, and further hearing
herein is set for the 13th day of January, 2003, at 10:30 a.m. in Courtroom Number 4,
Cumberland County Courthouse, Carlisle, PA.
BY THE COURT,
Austin F. Grogan, Esquire
For the Petitioner
George Kabusk, Esquire
For PennDOT
K~. Hess, J.
:rlm
RANDALL CARL VATHIS,
PETITIONER
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
1N THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. 02-3029
LICENSE SUSPENSION APPEAL
MOTION TO VACATE ORDER ISSUED ON OCTOBER 28~ 2002 IN WHICH THE
COURT UPON CONSIDERATION OF THE PETITIONER'S PETITION FOR
RECONDISERATION VACATED THE ORDER OF OCTOBER 11~ 2002 AND
SCHEDULED A HEARING FOR JANUARY 13~ 2003
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (Department), by and through its attorney, George H. Kabusk, Esquire, respectfully
represents as follows:
1. By official notice dated May 30, 2002, the Department of Transportation, Bureau of
Driver Licensing, notified Randall Carl Vathis, O.L.N. 15389992, that as a result of
his violation of Section 1547 of the Vehicle Code, relating to Chemical Test Refusal,
on March 9, 2002, his driving privilege was being suspended for a period of one year.
2. The petitioner filed an appeal of the above-mentioned suspension on or about June
24, 2002, in the Court of Common Pleas of Cumberland County.
3. A heating in the above-mentioned matter was held on September 30, 2002.
4. On October 10, 2002 this Honorable Court issued an Order that DENIED the
petitioner's appeal, which read as follows:
AND NOW, this l0th day of October, 2002, after hearing and
careful consideration of the testimony adduced, while we would find that,
at the time of his alleged refusal, the petitioner was in an altered mental
state and thus did not knowingly refuse a blood test, we do not believe,
under the current state of the law, that the petitioner can meet his burden
of proof without medical testimony. See Con,., Dept of Transportation,
Bureau of Driver Licensing v. 1)erhamtner, 118 Pa. Cmwlth. 364, 544
A.2d 1132 (1988). The appeal of the petitioner from the suspension of his
driver's license is DENIED.
5. The petitioner filed a PETITION FOR RECONSIDERATION with the Court on
October 23, 2002.
6. In his PETITION FOR RECONSIDERATION the petitioner requested this Honorable
Court to "schedule a Re-Hearing on the matter to receive medical testimony as to the
Defendant's medical state at the time of the accident."
7. The Department did not receive a copy of the petitioner's PETITION FOR
RECONSIDERATION.
8. The Department did not respond to the petitioner's PETITION FOR
RECONSIDERATION because the Department had no notice that the petitioner had
filed a PETITION FOR RECONSIDERATION.
9. The petitioner did not serve a copy of the PETITION FOR RECONSIDERATION
upon the Department.
I0. The petitioner did not attach a proof of service to the petitioner's PETITION FOR
RECONSIDERATION.
11. The petitioner was required to serve a copy of the PETITION FOR
RECONSIDERATION upon the Department. See Rule 440, Pa. R.C.P. See Pflugh
v. Pflugh, 457 A.2d 575 at 577 (Pa. Super. 1983) ("Serving a copy of the petition on
the opposing party was an elementary requirement of civil procedure and her failure
to do so cannot be excused.").
12. Because the petitioner failed to serve a copy of the PETITION FOR
RECONSIDERATION upon the Department, the Order issued on October 28, 2002
should be vacated. See Pflugh v. Pflugh, 457 A.2d 575 (Pa. Super. 1983); Keystone
Wire and Iron Works, Inc. v. Van Cot., Inc., 369 A.2d 758 (Pa. Super. 1976).
13. On October 28, 2002, this Honorable Court issued an Order which VACATED its
Order of October 10, 2002, and set further hearing for the 13th of January 2003.
14. The petitioner knew of the hearing held on September 20, 2002, the petitioner
attended the hearing, and in fact the petitioner testified at the hearing.
15. The petitioner admitted to consuming alcohol prior to his operation of a motor
vehicle.
16. The petitioner caused a four-vehicle crash in which the petitioner crashed into a line
of stopped traffic because he failed to stop for a stop light.
17. The petitioner was removed from his vehicle by an EMS crew and taken to the
hospital for treatment.
18. The petitioner was requested by Officer Sollenberger to submit to a chemical test of
his blood.
19. The petitioner was requested to submit to a chemical test, was informed of the
consequences of refusing, and was provided the required warnings.
20. The petition did not submit to the requested chemical[ test and Officer Sollenberger
deemed the petitioner's actions a refusal.
21. The petitioner exhibited no signs of serious injuries.
22. Once the Department establishes aprimafacie case, the burden shifts to the petitioner
to prove by competent evidence that the petitioner was unable to make a knowing and
conscious refusal to consent to the chemical test. Department of Transportation,
Bureau of Driver Licensing v. Holsten, 615 A.2d 113 (Pa. Cmwlth. 1992).
23. When the licensee claims that he was unable to make a knowing and conscious
refusal based upon injuries but does not suffer from an obvious inability to comply
with the requested test, the petitioner must present competent medical evidence.
Department of Transportation, Bureau of Driver Licensing v. Derhatntner, 544
A.2d 1132 (Pa. Cmwlth. 1988); Department of Transportation, Bureau of Driver
Licensing v. Holsten, 615 A.2d 113 (Pa. Cmwlth. 1992); Wright v. Department of
Transportation, Bureau of Driver Licensing, 788 A.2d 443 (Pa. Cmwlth. 2001).
24. The petitioner knew or should have known at the tirne of the heating or at the least
should have known at the conclusion of the heating when the Department presented
its legal argument that the petitioner was required to present competent medical
evidence.
25. The petitioner did not at any time during the hearing request leave to present further
testimony or that the record be left open to allow hirn to produce additional evidence.
26. The petitioner at the time of the hearing could have presented a competent medical
witness or witnesses but apparently made a conscious choice not to present such
witness(es).
27. The petitioner, after the Court issued an order denying his appeal, then requested
reconsideration, which was made without notice to the Department.
28. Having failed to properly present his affirmative defense at the first de novo hearing
in this matter and being dissatisfied with the result of said hearing, the petitioner is
seeking the proverbial "second bite at the apple."
29. The petitioner should not be granted a "second bite at the apple." See Weidel v.
Department of Transportation, Bureau of Driver Licensing, 01-1172, (Huntingdon
County 2002) (Department's motion to reopen the record denied based upon alleged
conscious choice by the Department not to present certain evidence at time of
hearing.) (See attached as attachment number 1); Department of Corrections v.
IVorkers Compensation Appeal Board, 744 A.2d 977 (Pa. Cmwlth. 2002) (Board did
not abuse its discretion by failing to hold a de novo hearing or remand the case for
rehearing, as to have done so would have given the employer the "proverbial second
bite at the apple."). See also S. Sponte, Esq., Warranty Work, Pennsylvania Lawyer,
September/October 2002. ("Why can't we, then, at ~the end of a trial that turned out
badly for our clients, simply have a do over?") (See .attached as attachment number 2).
30. The petitioner's blood, which was taken for medical purposes, indicated that the
petitioner's blood alcohol concentration (BAC) was 0.19%.
31. Even if the petitioner produces competent medical evidence, the expert medical
witness must testify to a reasonable degree of medical certainty that the licensee's
self-inflicted condition as a result of his voluntary consumption of alcohol was not a
factor that contributed to rendering him mentally incapable of making a knowing and
conscious refusal otherwise the defense fails. Hinkel v. Department of
Transportation, Bureau of Driver Licensing, 715 A.2d 556 (Pa. Cmwlth. 1998)
(Doctor could not testify to a degree of medical certainty that alcohol play no role in
suicidal depressed licensee's inability to make a knowing and conscious refusal.);
Department of Transportation, Bureau of Driver Licensing v. Holsten, 615 A.2d
Defense failed because licensee could not establish that alcohol ingestion played no
part in rendering him incapable of making a knowing and conscious refusal.)
32. The petitioner in all likelihood will not be able to able to present expert testimony that
his self-induced intoxication played no role in his alleged inability to make a knowing
and conscious refusal given the petitioner's medical injuries and his level of
intoxication.
33. The hearing scheduled for January 13, 2003 will in all likelihood be a drain on this
Court's valuable time, as well as that of the Department and the police officer who
reported the refusal.
WHEREFORE, the Department respectfully requests that this Honorable Court Vacate its
Order of October 28, 2002 and reinstate the Order of October 10, 2002 that denied the
petitioner's appeal.
Date: November 15, 2002
Respectfully submitted,
Assistant Counsel
Office of C]hief Counsel
Riverfront Office Center-3rd Floor
1101 South Front Street.
Harrisburg, PA 17104-2516
(717) 787-2830
RANDALL CARL VATHIS,
PETITIONER
Vo
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,
RESPONDENT
1N THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. 02-3029
LICENSE SUSPENSION APPEAL
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the Motion to Reconsider and Vacate
Order issued June 12, 2002 upon the person, and in the manner, indicated below, which satisfies
the requirements of the Pennsylvania Rules of Civil Procedure:
By first class mail, prepaid, addressed to:
Austin F. Grogan, Esquire
24 North 32na Street
Camp Hill, PA 17011
DATE: November 15, 2002
George H. Kabusk, I.D. # 58804
Assistant Counsel
Department of Transportation
Riverfront ()ffice Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
RANDALL CARL VATHIS,
PETITIONER
Vo
COMMONWEALTH OF PENNSYLVANIA,:
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
RESPONDENT :
IN THE C. OURT OF COMMON PLEAS
CUMBElq LAND COUNTY,
PENNSYLVANIA
No. 02-3029
LICENSE SUSPENSION APPEAL
VERIFICATION
I verify that the statements made in the MOTION TO VACATE ORDER ISSUED ON
OCTOBER 28, 2002 IN WHICH THE COURT UPON CONSIDERATION OF THE
PETITIONER'S PETITION FOR RECONDISERATION VACATED THE ORDER OF
OCTOBER 11, 2002 AND SCHEDULED A HEARING FOR JANUARY 13, 2002 are true and
correct. I understand that false statements are made subject to the penalties of 18 Pa. C. S.
Section 4904, relating to unsworn falsification to authorities.
DATE: November 15, 2002
George H. Ka~sk
Assistant Counsel
Departmen! of Transportation
Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
(717) 787-2830
IN THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY,
PENNSYLVANIA
CIVIL DIVISION
DAVID JOHN WEIDEL, :
Petitioner:
:
VS. :
:
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
Respondent:
NO.. 01-1172
ORDER
AND NOW, this 2nd day of ]Hay, A.D., 2002, for the
reasons set forth in a Memorandum filed this date,
It is the Order of this Court that:
1. The motion of the Department of Transportation to
reopen its case is denied.
2. The appeal of David John Weidel is sustained and
the order of the Department suspending Appellant's license
to operate a motor vehicle is set aside and vacated.
George Kabu: k, Esq.
James Himes Esq.
by cnk
BY THE COURT,
IN THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTy,
PENNSYLVANIA
CIVIL DIVISION
DAVID JOHN WEIDEL, :
Petitioner:
:
VS.
:
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION, :
BUREAU OF DRIVER LICENSING, :
Respondent:
NO. 01-1172
.MEMORANDUM
In this license suspension appeal, the following facts
frame the issues for our judgment.
1. By letter dated September ~5, 2001, the Department
of Transportation, Bureau of Driver's Licensing
(Department), notified David John Weidel (Licensee) that his
privilege to operate a motor vehicle in the Commonwealth
would be suspended effective October 11, 2001, pursuant to
Section 1581 of the Pennsylvania Vehicle Code. 75 Pa.C.S.A.
S 1581.
2. The reason assigned was a May 20, 2001, conviction
in North Carolina for a violation ,, similar to
violating Section 3731 of the Pennsylvania Vehicle Code,
Driving Under Influence".
3. Licensee appealed to this Court September 21, 2001,
and, we granted a supersedeas pending resolution of the
matter. 75 Pa.C.S.A. S 1550(a) (b).
4. A hearing was scheduled for December 7, 2001.
5. By opinion dated November 30, 2001, the Supreme
Court of Pennsylvania affirmed a judgment of the
Co~,~,onwealth Court of Pennsylvania that had determined that
". · North Carolina's impaired[ driving statute was
substantially similar to the Pennsylvania DUI statute". Roy
Hoenisch v. Commonwealth~ Department of Transportation,
Bureau of Driver Licensing, 785 A.2d 969, 971 (2001).
6. At hearing on December 7, 2001, the Department
offered into evidence a packet of documents that included a
statement of the case history from North Carolina. The
exhibit was certified by the Director, Bureau of Driver
Licensing for the Commonwealth of Pennsylvania.
7. Licensee objected to the documentary proffer but
this Court nonetheless accepted the exhibit.
8. Subsequently, in his Brief, Licensee argued that
the Department had failed to meet its burden of proof and
cited the decision of the Co~,onwealth Cou~t of Pennsylvania
in TriDson v. Commonwealth_~artment of Transportation,
773 A.2d 195 (2001), allowance of appeal denied 2002 WL
130254, in support of the argument.
9. The Department responded with a'Motion to Reopen
the Record, a pleading that acknowledged the truth of
Licensee's conclusion but alleged that the "Department did
not anticipate an issue regarding proof of the petitioner's
conviction of North Carolina driving while under the
influence".
10. We scheduled and heard argument on April 19, 2002.
Discussion
In this appeal the burden of proof upon the Department
at the December 7, 2001, hearing was to produce a record of
Licensee's North Carolina conviction in order to support the
suspension. Article III of the Driver's License Compact, 75
Pa.C.S.A. § 1581, mandates with respect to the conviction
that "~T]he licensing_ authority of a ~ shall
report each conviction of a person from another party state
occurring within its jurisdiction to the licensing authority
of the home state of the licensee" (emphasis added). In
TriDson v. Department of Transportations, 773 A.2d 195, 197
(May 25, 200]), appeal denied .. A.2d _ , 2002 WL 130254
(Feb. 1, 2002), a panel of the Co~,onwealth Court of
Pennsylvania ruled that the requirement of Article III was
mandatory, and that unless the documents proffered to prove
the conviction came from the other state's licensing
authority, they did not satisfy Article III. With this
legal backdrop we turn to the issue.
The Department without question failed to satisfy its
burden at hearing and therefore requests a second chance to
proffer evidence to meet its evidentiary obligation. It
argues that the ~ripson issue was not anticipated -- a
hollow plea in light of the Department,s duty in all cases
of this genre. In any event, we believe the facts are not
unlike the facts in Ebersole~ et al.~, v. Beistlinc, 368 Pa.
12, 82 A.2d 11 (1951) where the issue of a trial judge's
refusal to permit a Plaintiff to reopen his case was
reviewed.
would not question the efficacy of the proffered documents.
We see very little difference between a failure to call eye
witnesses at a jury trial and a failure to provide proper
documentation in license suspension appeal. Both failures
represent conscious
believe foreclose
Accordingly, since
permit a party to
motion in this case.
choices made at rial/hearing that we
t "
reversal when the strategy fails.
we have discretion in whether or not to
reopen, their case, we will deny the
DATED:
May 2, 2002
BY THE COURT,
WARRANTY WORK
By S. Sponte, Esq.
Recently I purchased a new car, a
really spiffy one, German, very
fast, very expensive. This spiffy
car came with a spiffy phone system,
built in and integrated with the radio. I
could store lots of numbers, dial them
with the push of a radio bntton, scroll
through all the names and numbers and
see them displayed on my radio and
even operate it by voice command. Of
course, I can't see the road while I'm
doing it, but that's a small price to pay
for so much technological wizardry.
It is really spiffy, or rather it would
have been really spiffy if it had worked.
You see, it didn't work.
I took the car back the next day and
the radio unit was replaced. That didn't
work. I took the car back a few days
later and this time the phone system
was replaced. That didn't work either. I
took the car back a few days later. This
time the factory authorized the dealer to
put in, for free, the CD player I didn't
order, figuring that somehow the CD
player was needed to make the whole
shebang work right. It didn't.
Well, to make a long story short,
after about five or six visits, one of
which required me to leave the car
overnight, the system was fixed. Tums
out the wrong radio had been installed
from the get-go and once the correct
model had been installed, the phone
worked flawlessly. I am now happy.
But as ! left the dealer on that last
occasion, it su'uck me as funny how
here I was, having purchased a very
expensive car, and yet I had to take the
thing back again and again until the
work was done in a satisfactory man-
ner, work that, quite honestly, should
have been done right the first time.
Now, generally, I have less
patience than a man who has just taken
his very last Viagra pill. But, when it
comes to the concept of wan'anty work,
I apparently readily acquiesce in this
wearisome and frustrating process. I
have, I guess, come to realize that some
things are fairly complex and thus may
take a while to get done properly. In
fact, all of us routinely accept the
notion that providers of goods and ser-
vices don't always get it right the first
time and we often patiently wait until
the work finally gets done correctly --
under warranty, of course.
How odd it is that our profession
has no such opportunity. When me-
chanics don't get a car repaired ]proper-
ly, we give them another chance. When
a manufacturer's product doesn't work,
we think nothing of returning it for a
new one. Whe? neurosurgeons acciden-
tally slip with the scalpel, we ... well,
maybe that's not a good example.
The poir~t here is simple. Some-
times, try though we may, we just don't
always do our best work. Why can't
we, then, at the end of a trial that turned
out badly for our clients, simply have a
do over? Why can't we simply replace
the product with one that works. ,M1 we
should have to do is advise the judge
that, OK, we didn't get it right that
time, but how about we come back in a
few days to give it another try?
It all brings to mind the very first
jury trial I ever tried, back about 1971.
It was a simple intersection accident. '
The defendant had failed to stop at a
stop sign and T-boned my clienlt who
had the right of way and was driving
along, minding his own business. The
litigants each blamed the other fi>r the
accident, but there was an independent
witness. My client had his name and
number and told me that this witness
could absolutely verify that the defen-
dant had mn the stop sign.
Now, I can't explain why, but I
never contacted that witness. I went to
trial with only one witness, my client.
Now, maybe it was because I was
young and inexperienced. Maybe it was
because I was timid and shy. Or maybe
it was because my client turned down a
really good offer of settlement and I
pretty much wrote him off as a greedy
pig. Whatever, the jury came back with
a verdict for the defense.
Now, I ask you, why couldn't [just
say to all those assembled, "Gee, I
don't think I did this the right way, but
what say we all meet here again next
Thursday at 9:30 and I'll have another
go at it?"
What would be the harm?
another judge would have to try the
case again, but judges' salaries are
fixed. It wouldn't cost the state a dime
to have them try the case again, and
with a second chance there's always an
enhanced possibility they might get it
right. It would be kind of like a new
trial but without the expensive and tire-
some need to trouble an appellate court.
And sure, another jury would have
to be assembled, but it does get the
jurors out of the house for the afternoon
and they can always tape their soap
operas for viewing at a later time.
I have given the matter mucl~
thought, and I can see no practical rea-
son why we lawyers shouldn't have the
same opportunities society so willingly
grants our mechanics, our manufactur-
ers and our dermatologists.
So that's my grand idea. I'm all for
instituting it at once. At the end of
every trial, if you aren't happy with the
outcome, simply stand up and say,
"Sorry, sorry, this didn't work. I have
time in my book to do this again next
week. Does that time work for every-
body else?"
Not convinced yet? Well, consider
this. If my plan gets put into effect, just
think of how it would nullify all those
pesky malpractice claims you're always
fretting about.
Now then, all those in favor, raise
your hands. ~
"To Wit' is satirical fiction and should not
be regarded as necessarily reflecting the
official views of the PBA. If, for any
inexplicable reason, anyone wants to
contact the author, he can be reached at
sponte @ aol. com. Copyright 2002,
S. Sponte, Esq.
THE PENNSYLVANIA LAWYER 64 SEPTEI'IBER., OCTOBEP, 2002
RANDALL CARL VATHIS,
Petitioner
Vo
COMMONWEALTH OF PA.,
DEPT. OF TRANSPORTATION, :
Respondent :
IN THE COURT OF COMMON PLEAS OF
:
CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: 02-3029 CIVIL TERM
DRIVERS LICENSE APPEAL
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
Monday, September 30, 2002,
in Courtroom Number 4.
APPEARANCES:
AUSTIN F. GROGAN, Esquire
For the Petitioner
GEORGE KABUSK, Esquire
For PennDOT
INDEX TO WITNESSES
FOR PENNDOT
Officer James Sollenberger 3
FOR THE PETITIONER
Randall Vathis 22
Paul Vathis 33
DIRECT
CROSS
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30
37
INDEX TO EXHIBITS
FOR PENNDOT MARKED
Ex. No. 1 - Chemical Testing
Warnings 3 14
Ex. No. 2 - receipt 6 14
Ex. No. 3 - Request for
testing 9 14
Ex. No. 4 - blood alcohol
result 21 22
ADMITTED
REDIRECT
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(Whereupon, Commonwealth's Exhibit No. 1
was marked for identification.)
THE COURT:
MR. KABUSK:
MR. GROGAN:
MR. KABUSK:
Good morning.
Good morning, Your Honor.
Good morning.
This is the case of Randall
Carl Vathis versus Commonwealth of Pennsylvania, Department
of Transportation, Case No. 02-3029. This is an appeal
from a one-year suspension as a result of the petitioner's
violation of Section 1547 of the Vehicle Code. That is
relating to chemical test refusal.
By official notice, dated May 30th, 2002,
the Department notified Randall Carl Vathis, operator's
number 15389992, that his operating privilege was being
suspended for a period of one year as a result of his
violation of Section 1547 of the Vehicle Code relating to
chemical refusal on 3/9 of 2002.
The Department now calls Officer James
Sollenberger.
Whereupon, OFFICER JAMES SOLLENBERGER,
having been duly sworn, testified as
follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q
Officer Sollenberger, please state your name
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and spell your last name for the record?
A My name is James L. Sollenberger,
S-o-l-l-e-n-b-e-r-g-e-r.
Q And where are you employed?
A Hampden Township Police Department.
Q During the course of your official duties
have you had occasion to investigate an alleged incident of
DUI on or about March 9th, 2002?
A Yes, sir.
Would you please tell the Court about that
Q
incident ?
A
I responded to a four car vehicle accident
at the intersection of Orrs Bridge and the Carlisle Pike.
It is right in front of the Hess station. Three vehicles
were sitting in traffic waiting for the light to change,
when a fourth vehicle, driven by Mr. Vathis, failed to stop
and struck vehicle three, which pushed three into two and
two into one.
Q
A
And then what happened?
Further investigation of one of the drivers
of the vehicle when I arrived came up to me and told me
that she had checked on the driver of the striking vehicle
and she thought she smelled alcohol on him. At that time
he was being removed from the vehicle by EMS and fire
personnel. So I continued with my investigation at the
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scene. As quickly as I could I wrapped that up and then
went to the hospital to follow-up on Mr. Vathis.
Q Did you examine Mr. Vathis' vehicle?
A Yes, sir, I did. Just before I left the
scene as we were getting ready to tow it. I went in to
check the glove box for registration and insurance
information that I needed for my accident investigation.
And I noticed a paper bag laying on the passenger side
floor boards. It is a long, thin type of paper bag that I
have only ever seen used at the state stores in
Pennsylvania. I did check the -- inside the bag was a
bottle of I believe it was Seagrams extra dry gin. It was
approximately three quarters empty. I checked the date.
The receipt was under the bottle inside the bag. I checked
the date. It was purchased on that date, just roughly two
hours before the accident.
Q
approximately?
A
Your Honor?
BY MR. KABUSK:
Q
A
What time did the accident occur
I believe it was 4:15 p.m.
MR. KABUSK: May I approach the witness,
THE COURT: Certainly.
Would you identify what I am showing you?
That is a copy of the receipt that I found
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in the bag inside the vehicle.
MR. KABUSK: Thank you. May I have that
marked as Commonwealth's Exhibit No. 2.
(Whereupon, Commonwealth's Exhibit No. 2
was marked for identification.)
MR. KABUSK: I would move for the admission
of what's been marked as Commonwealth's Exhibit No. 2.
THE COURT: We will admit it unless there is
an objection.
MR. GROGAN: No. No objection. We
stipulate that he was drinking that day.
BY MR. KABUSK:
Q
A
And then what happened?
At the hospital, sir, I filled out the form,
I don't know the designation for it, but it is the form for
a police officer to request blood to be drawn for a blood
alcohol content test.
MR. KABUSK: May I approach the witness,
Your Honor?
BY MR. KABUSK:
Q
A
sir.
THE COURT: Sure.
Will you identify that form, please?
That's the form that I filled out that day,
A copy of it I should say.
Q Now, you stated that you filled this form
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out?
hospital?
accident?
A
Yes, sir.
Now, did you transport Mr. Vathis to the
A
No, sir. I did not.
How was he transported to the hospital?
By ambulance, sir.
Did you see Mr. Vathis at the scene of the
A
Inside the vehicle, sir, yes, sir.
What did you notice about Mr. Vathis?
There was a lot of people gathered around
him. The EMS people were working on him. They were trying
to get him out. As I remember, there was some problem
getting the door open or something that they had difficulty
getting him out of the vehicle.
Q Okay. Did you notice any obvious injuries
at the scene of the accident?
hospital?
A
Not that I noticed, no, sir.
No blood?
No, sir.
Now, you stated that you went to the
A
Yes, sir.
What happened upon your arrival at the
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hospital?
A I asked where Mr. Vathis was. I identified
myself as a policeman and asked them where he was at, that
I needed to speak with him. I was directed to -- I don't
know what they call it, a curtained-off area, where Mr.
Vathis was laying on a table. I had filled out the form
that I spoke about earlier. And then I also filled --
Q Okay. That form that you are speaking of,
is that the form that I just handed to you?
A Yes, sir.
Q Would you describe that form?
A At the top it is Pinnacle Health System at
Harrisburg Hospital, a Certification of Request for Testing
to Determine Presence of Alcohol and/or Controlled
Substance under Pennsylvania Motor Vehicle Code. Note all
applicable sections of this form must be completely filled
in.
Q And when you arrived at the hospital, did
you fill this form out?
correct?
A
Yes, sir.
Was it prior to seeing Mr. Vathis?
Yes, sir. I believe it was.
But you didn't complete it in full, is that
A No, sir. You have to -- I did not know at
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the time if he would take the test or not.
So this is a form the hospital wants you to
Q
fill out?
A
Yes, sir.
MR. KABUSK: Thank you. I move for the
admission of what's -- may I approach the witness, Your
Honor?
THE COURT:
MR. KABUSK:
Certainly.
May I have this marked as
Commonwealth's Exhibit No. 3?
(Whereupon, Commonwealth's Exhibit No. 3
was marked for identification.)
MR. KABUSK: I move for the admission of
Commonwealth's Exhibit No. 3.
MR. GROGAN: No objection, Your Honor.
BY MR. KABUSK:
Q Then after you filled that form out, what
did you do?
A I went to where he was at.
consent warning out. I filled what I .could of that out.
And I don't remember why, but I did have to wait for a few
minutes for something. I don't know if they were doing
something or taking a test or something, but after a few
minutes I did get to speak with Mr. Vathis. In the time
that I was waiting I had asked for one of the hospital
I got my implied
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security staff to come to where I was at.
When I got a chance to speak with Mr.
Vathis, I did read the Implied Consent Law from this form.
MR. KABUSK: May I approach the witness,
Your Honor?
THE COURT: Yes.
BY MR. KABUSK:
Q I am going to show you what's marked as
Commonwealth's Exhibit No. 1. Would you identify that
form?
A This is the form that Ii filled out that day,
sir, a copy of it.
Is that the implied consent form you
Q
referred to?
A
Q
Yes, sir, it is.
Now, after you filled this form out, what
did you do then?
A Whenever I had a chance to speak with Mr.
Vathis I read the four areas to Mr. Vathis, making sure
that the security personnel was watching me as a witness as
I did this.
Q Would you read aloud what you read to the
petitioner?
A Yes, sir. Please be advised you are now
under arrest for driving under the influence of alcohol or
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a controlled substance pursuant to Section 3731 of the
Vehicle Code. I am requesting that you submit to a
chemical test of blood. It is my duty as a police officer
to inform you that if you refuse to submit to the chemical
test your operating privileges will be suspended for a
period of one year.
Your Constitutional Rights you have as a
criminal defendant, commonly known as the Miranda Rights,
including the right to speak with a lawyer and the right to
remain silent, apply only in criminal prosecutions and do
not apply in chemical testing procedures under Pennsylvania
Implied Consent Law, which is a civil, not a criminal
proceeding.
You have no right to speak to a lawyer or
anyone else before taking the chemical test requested by
the police officer. Nor do you have the right to remain
silent when asked by the police officer to submit to a
chemical test unless you agree to submit to the test
requested by the police officer, your conduct will be
deemed a refusal and your operating privileges will be
suspended for one year. Your refusal to submit to chemical
testing under the Implied Consent Law may be introduced
into evidence in a criminal prosecution for driving while
under the influence of alcohol or a controlled substance.
Q You stated you read that: word for word?
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form.
A
Yes, sir, I did. I read it right from the
Q And then what happened?
A I got no response from Mr. Vathis. Then I
asked him three times to respond if he understood. In
fact, I made a point of holding my fingers up. I looked at
the security guy so I got his attention. And I asked him
once, then I asked him twice, and then a third time.
Q What did you specifically ask him, do you
recall?
A I can't remember word for word, but it was
basically do you understand what I have spoke to you, are
you going to agree to take the test. And if you do not
make any comment, it is going to be considered a refusal.
Q And you did that three times?
A Three times, yes, sir.
Q And what was Mr. Vathis doing while you were
reading and then requesting?
A He was laying on the table, on the gurney,
on his back. He had his arm draped over his eyes. And he
was sobbing and crying.
Q Did you notice any obvious injuries?
A No, sir. I did not.
Q Did he inform you of any physical or medical
conditions at that time?
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A
three times?
A
A No, sir. He did not.
Q Did he exhibit any symptoms that would
indicate the presence of a physical or medical condition?
Not that I noticed, sir.
And then what happened after you asked him
I got information like the security guard's
name and address from my report and made sure I had all my
paperwork. And then I believe I left the hospital, sir.
Q So you considered his actions a refusal?
A Yes, sir.
Q And, once again, what were his actions to
you that you considered it to be a refusal?
A When I was reading it, and then the point
where I asked him three times to respond, he laid on the
gurney on his back with his arm draped over his eyes crying
and sobbing, not responding other than that.
Q Were you close enough that he could hear
you?
MR. GROGAN: Objection, Your Honor. It
calls for speculation on what this officer thought Mr.
Vathis heard.
THE COURT: Well, we will not receive it for
that purpose. I am going to receive that as a lay opinion
that he was close enough to be heard. And I think a lay
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person can express an opinion about that.
BY MR. KABUSK:
Q
A
Approximately how close were you to him?
I was standing less than two feet from him,
sir, right beside him.
MR. KABUSK: I move for the admission of
Commonwealth's Exhibit No. 1, 2 and 3 if I haven't done so
already.
THE COURT:
MR. GROGAN:
objection, Your Honor.
THE COURT:
MR. KABUSK:
I think you. have.
Yes, I think so. I have no
Okay.
I have no further questions.
BY MR. GROGAN:
Q
CROSS EXAMINATION
Officer Sollenberger, just to back up to the
scene of the accident. When you arrived Mr. Vathis was
stuck in his car, is that correct?
A That's correct, sir.
Q And you did not interview Mr. Vathis at that
point?
A No, sir.
Q It is my understanding from the testimony
here today and from Mr. Vathis' recollection -- or from the
testimony here today, that he was stuck in the car, is that
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correct?
A Yes, sir.
Q And the EMS people were trying to attend to
him, is that correct?
A Yes, sir.
Q And when I say EMS, I mean the emergency
personnel that drive the ambulance to the scene of the
accident?
A Yes, sir.
Q You also indicated from testimony here today
that the fire department was there?
A Yes, sir.
Q And the fire department was actually trying
to somehow open up the car to get him out of the vehicle?
A Yes, sir.
Q And so when you were there, you had not
actually interacted with Mr. Vathis at all?
A That's correct, sir.
Q And the only interaction that you had with
Mr. Vathis was at the hospital?
A Yes, sir.
Q I am talking about March 9th. I realize
there may have been subsequent involvement.
A Yes, sir.
Q
After Mr. Vathis was taken to the hospital
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you went to speak with him, is that correct?
A Yes, sir.
Q But you had also spoken with I guess the
emergency personnel that treated him at the scene of the
accident, is that right?
A I don't believe I spoke with them. I spoke
with witnesses and other people at the scene, other people
that were involved in the accident.
Q I am looking at the search warrant that you
filed to get his blood test. Do you have a copy of your
search warrant?
A I have it, but it is...
Q I realize it is in all 'the paperwork on your
desk.
Why don't you just look down towards the
bottom two paragraphs when you relate to people you spoke
to.
A Yes, sir.
Q It talks about the fact that you had
interviewed the EMT personnel, is that correct?
A I believe it was. I talked to the emergency
room personnel. And they related that it was the same
thing, that the EMT's and the ambulance people told them,
sort of secondhand.
Q Now, Mr. Vathis was not responsive to any
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questions, is that correct?
A That's what they told me, yes, sir.
Q And that he was babbling and crying when
they were trying to tend to his needs?
A Yes, sir.
Q And you also confirmed that with the
emergency room personnel, that when they were trying to
treat him he was unresponsive to any questions by the
emergency room personnel?
A He would not answer questions, yes, sir.
Q And that even from your testimony he was
laying there crying with an arm over his eyes?
A That's correct, sir.
Q Did you hear him ask to be let alone to die
or any suicide statements?
A I did not hear that, sir, no, sir.
Q Did they tell you that he was asking to die
and to commit suicide?
A I found that out later, I believe through
reading the paperwork I got from the search warrant, sir,
yes, sir.
Q That he wanted to die and was crying to be
allowed to commit suicide?
A That he wanted to die.
Q Suicide was probably the wrong term. Now,
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when you interviewed Mr. Vathis, he did not even
acknowledge you were there, isn't that true?
A That's correct, yes.
Q He basically kept his eyes covered and
crying, is that your testimony?
A That is my testimony, sir.
Q Did he ever acknowledge that you were there?
A No, sir.
Q Did he ever even look at you and make either
eye contact or some type of contact that he saw you
standing there two feet from him?
A No, sir.
Q Did he ever respond to .any questions from
anybody in your presence on March 9th, 2002?
A No, sir.
Q Other than just crying there and sobbing,
did he ever speak to anybody?
Not that I heard, no, sir.
You were asked on direct if he told you of
But he never told you of anything, isn't
A
Q
any injuries.
that correct?
A
Q
That's correct, sir.
And other than just crying there, he just
laid there, is that true?
A Yes, sir.
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evening?
Q Did you speak with his father later that
A
At the emergency room, sir.
I am talking about at the --
At the hospital.
At Harrisburg Hospital.
Yes, sir, I did.
And did you relay to the fact that he was
just incoherent and babbling while you were interviewing
him?
A I don't remember that, sir.
Q Now, as a result of your investigation you
actually obtained a search warrant, isn't that correct?
That's correct, sir.
And you actually received his blood alcohol
A
test results?
A
Q
A
questions.
Yes, sir.
And from that you filed the DUI charges?
Yes, sir.
MR. GROGAN: Thank you. I have no further
BY MR. KABUSK:
Q
REDIRECT EXAMINATION
Yes, Officer, you were asked if you obtained
a search warrant, and then you were asked if you received
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the results.
A
Q
A
Did you indeed receive the results?
Yes, sir, I did.
And what were those results?
I believe they were 0.].9 percent blood
alcohol content, sir.
MR. KABUSK:
Your Honor?
Q
result is?
A
Q
May I approach the witness,
THE COURT: Yes.
BY MR. KABUSK:
Q
hospital?
A Yes, sir. Because I remember I asked -- I
told them I needed to know who performed the test and who
the, if I am pronouncing it correctly, phlebotomist was.
And where on there does it indicate what the
Is this a copy of what you received from the
Alcohol 0.19.
And then you were asked if you followed up
on paperwork from the hospital in regard to whether the
petitioner was coherent, is that correct?
A I am sorry. I am not sure I understand.
Q I believe there was a question that you were
asked regarding if the paperwork from the hospital
indicated whether the petitioner was essentially
nonresponsive. I believe that wa.s a question. And I would
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like to follow-up on that. AdditionaJLly in that paperwork,
did that paperwork indicate whether the petitioner was
intoxicated?
A
Q
The search warrant paperwork, sir?
Whatever paperwork you followed up on?
MR. GROGAN: If it helps, we will stipulate
that his BAC was .19, which is above the legal limit.
BY MR. KABUSK:
Q What I am saying is did the doctors -- do
you have any indication that the doctors indicated that he
was intoxicated and not cooperative?
A At the hospital that night, no, sir, I don't
think I ever actually spoke with doctors. I know I spoke
with a nurse.
Q
you, anything in that regard?
A Just that he has been nonresponsive.
don't remember her saying anything about alcohol or
Okay. And what did the nurse indicate to
anything else.
MR. KABUSK:
MR. GROGAN:
THE COURT:
No further questions.
No recross.
Thank you.
(Whereupon, Commonwealth's Exhibit No. 4
was marked for identification.)
MR. KABUSK: I would move for the admission
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of Commonwealth's Exhibit No. 4.
MR. GROGAN: No. 4 I think is the test
result from the hospital showing a BAC of .19.
MR. KABUSK: That's correct. And that is
the Department's case. And the Department reserves the
right to recall its witness.
THE COURT: Call Randy Vathis.
Whereupon, RANDALL VATHIS, having been
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q Randy, for the record, why don't you go
ahead and state your name and address?
A Randall Vathis. 1413 Silver Creek Drive,
Mechanicsburg, Pennsylvania.
Q
Is that in Hampden Township?
Yes, sir, it is.
How long have you lived there?
Approximately six years.
Is that your home?
Yes, it is.
And who do you live with?
I live alone.
Just for the record, what do you do for a
living?
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A
I am retired.
And who are you retired from?
The Commonwealth of Pennsylvania.
And how long have you been retired from the
Commonwealth of Pennsylvania?
A Since February.
Q Now, last March of 20021 were you living at
your current residence, or were you living somewhere else?
A I was living somewhere else.
Q And where were you living at?
A I was living at my parents' home.
Q What address is that?
A 5110 Inverness Drive.
Q And why were you residing at your parents'
residence last March of 2002?
A A few weeks before that my home had incurred
a fire.
Q And that home that had the fire is located
in Hampden Township?
A Yes.
Q Did fire result in an earlier DUI charge
being filed against you?
A Yes, it did.
Q And was that somewhat of a notorious fire
where there was a lot of police involvement?
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that day?
A
Yes, there was.
Now, on March 9th of 2002 were you drinking
A Yes, I was.
Q And you heard testimony about this gin
bottle. What do you remember drinking on March 9th, 2002?
A I remember drinking some gin that day.
Q And what caused you to be out on the road on
a Saturday afternoon, March 9th?
A I was going to get dinner for my parents and
myself.
Q
A
Q
afternoon?
A
Okay. And where were you planning to go?
To a fast food restaurant in Camp Hill.
And what do you remember of that Saturday
I remember walking out of the house and
getting in my car and backing out of tile driveway. And
that's all I remember.
Q Okay. Do you know what the distance from
your parents' driveway to where the accident occurred how
many miles that is or what the distance is?
A
three miles?
Approximately three miles.
Do you have any recollection of driving that
A No, I don't.
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A
the hospital?
A
gurney.
Q
Q After you got in your car -- what kind of
vehicle were you driving that day?
A It was a 1991 Oldsmobi]Le I believe.
Q And after you got in your car what's your
next recollection from March 9th, from this accident?
Waking up in the hospital.
And what do you remember about waking up in
I remember that I was strapped down to a
When you say you were strapped down, how
were you strapped down?
A My ankles and my wrists were tethered down
with straps. And I had a brace, which ran from the back of
my neck up around the back of my head.
Did you suffer injuries as a result of this
Q
accident?
A
Q
Yes, I did.
What kind of injuries did you sustain as a
result of the accident?
A
My head hit the windshield.
Go ahead.
I was thrown forward.
windshield -- my face.
the steering wheel.
N[y head hit the
My chest had a severe impact with
And through that whole process I also
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chipped my tooth.
Q
A
Q
For the record, which tooth did you chip?
My front.
Front center tooth?
A Front center tooth.
Q Now, you indicated you hit your head. Do
you have any recollection of hitting your head?
A No, sir.
Q Did you have any injuries or bruises
sustained afterwards?
A Yes, I did.
MR. KABUSK: Your Honor, I object to his
testimony. He testified as to what his injuries were. And
then he is testifying he doesn't have any recollection of
those injuries.
THE COURT: I am assuming this is all based
on his sense of himself after he woke up?
MR. GROGAN: I can establish that.
BY MR. GROGAN:
Q After you woke up, did you see injuries on
yourself?
A Yes.
Q Did you have those injuries before you got
in your vehicle on March 9th?
A No, I didn't.
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Q In addition to the chipped tooth, what type
of injuries did you have on your chest?
A My chest hurt very sew~rely.
Q Did you have the impression of the steering
wheel on your chest?
A Yes, sir.
Q Did you have any other head injuries?
A When I struck the windshield, it must have
been pretty severe, because I had black and blue marks
throughout my entire face and especially around my nose and
under my eyes.
Q Were those black and blue marks evidenced on
October 9th, or did they come up later on?
A Probably a day later.
Q Now, as a result of the accident were you
asked to be admitted to the hospital?
A Yes.
Q Was Crisis Intervention called?
A Yes.
Q Did they want you to submit or admit
yourself to the hospital for observations?
A
Yes.
Did you agree to do that.?
No.
Were you eventually discharged from the
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hospital?
A
Yes.
And who took you home?
My father.
And after that incident: did you have to be
processed and have your photograph taken?
A Yes.
Q Did the County take your picture?
A Yes.
Q Did the picture show these injuries on your
face?
A
DUI arrest?
A
Q
Yes.
Was that part of your processing for your
about two weeks before this incident.
'through other legal problems?
Yes.
Now, you indicated that you had a prior DUI
Were you going
MR. KABUSK: Your Honor, I object to this
regarding the relevance of this refusal.
MR. GROGAN: Well, it is to his knowledge of
what a refusal would have caused him. I think the issue is
whether or not --
THE COURT: That he had learned and he
realized the ramifications of the refusal. I will permit
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A
until today.
Q
it.
BY MR. GROGAN:
Q When you were arrested two weeks before that
for a DUI, did you submit to an analysis of your breath?
A I submitted to a blood test.
Q Excuse me, to a blood test. Were you
advised of what would happen if you had refused to submit
to a blood test two weeks before that?
A Yes. When I was at the Booking Center the
employee asked me if I would take a blood test. And I
asked him what the consequences would be if I didn't. And
he distinctly told me that I would lose my license for one
year because of that alone. And that if I was convicted of
the DUI, I would lose my license for an additional year.
Q And this was two weeks before this incident?
A That is correct.
Q And did you comply with that first request
back in February of 2002?
A Yes, I did.
Q Now, on March 9th, 2002, do you have any
recollection of meeting Officer Sollenberger?
No, sir. I have never seen Mr. Sollenberger
In the hospital do you have any recollection
of him interviewing you?
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A No, sir.
Q Do you have any recollection of him telling
you that he wanted you to submit to a blood test?
A No.
Q Do you have any recollection -- the first
time you remember seeing this officer is today?
A That is correct.
Q In the hospital were you aware of what was
going on while you were being treated by the doctor in the
emergency room?
A No, sir.
Q And your first recollection in the hospital
is sometime later when you wake up?
A Yes.
Q And just for the record., you described being
secured to the hospital bed?
A Yes.
MR. GROGAN: I have no other questions.
Thank you.
BY MR. KABUSK:
Q
CROSS-EXAMINATION
Mr. Vathis, you admit that you were drinking
prior to the incident?
A Yes.
Q And you admit that you have no recollection
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of the incident?
A That is correct.
Q And were you voluntarily consuming alcohol
prior to the incident?
A Yes.
Q And would you agree that the consumption of
alcohol could be a factor in you not recollecting the
events?
A
Q
of the events after you left your driveway, is that
correct?
A
Q
is it?
I don't know.
But you stated that you have no recollection
That is correct.
And that's not where the accident occurred,
A That is correct.
Q So you drove, and then you were involved in
an accident, correct?
A That is correct.
Q And how do you know you were involved in an
accident?
A When I woke up in the hospital I overheard
somebody say that I had been in an accident.
Q And then you were discharged from the
hospital, is that correct?
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Q
experience?
A
I woke up.
before that.
Q
test?
A
A Yes, sir.
Q Do you know why you were secured to the
gurney while you were in the hospital?
A They had taken tests, x-rays, I believe an
EKG. I don't remember all the terminology. But I was told
they did a battery of tests on me. And I know they did
because I got the bill in the mail for it.
Were you cooperative throughout the hospital
BY MR. GROGAN:
Q
blood test?
A
Q
I don't recall the hospital experience until
And I believe the tests had already been done
Did you ever submit to 'the requested blood
NO.
MR. KABUSK: No further questions.
REDIRECT EXAMINATION
Do you remember being asked to submit to a
No.
Do you have any recollection of any
interview by any person on March 9th regarding your DUI
arrest?
A No.
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remember?
accident.
MR. GROGAN: No other questions.
THE COURT: When did you wake up, do you
THE WITNESS: It was several hours after the
I don't remember the exact time.
THE COURT: Thank you.
MR. GROGAN: Call Mr. Paul Vathis.
Whereupon, PAUL VATHIS, having been duly
sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q Mr. Vathis, just for the record, why don't
you state your name and where you live'?
A My name is Paul Vathis, V-a-t-h-i-s. I live
at 5101 Inverness Drive, Mechanicsburg..
Mr. Vathis, what is your relationship to
Q
Randy Vathis?
A
Q
He is my son.
Mr. Vathis, last March of 2002 was Randy
living at your house?
A Yes, he was.
Q And were you here during' his testimony this
morning?
A
Yes.
Now, on March 9th did he go out to buy
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dinner?
A
Q
about Randy?
A
about Randy.
Yes, he did.
And did you eventually get a phone call
I received a phone call from the hospital
They first asked me if I was Mr. Vathis, and
do I have a son named Randall. And I said yes. He says,
well, we have your son here in the emergency room of the
hospital. Come on down.
Q When you arrived at the hospital, was Randy
being treated by emergency room personnel?
A Yes. Yes. He was being completely -- it
was a doctor and several nurses. He was strapped on the
gurney. Believe me, when you see your son laying on a
gurney and strapped down and very incoherent yelling I want
to die --
Q
you see that?
there?
So when you say he was strapped down, did
Yes.
How was his demeanor, how was he acting
A He didn't recognize me. He did not
recognize me at all, and completely irrational, and just
yelling I want to die. I want to die. Get me out of here.
I want to die.
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Q And was the police officer there?
A I met the police officer afterwards, Mr.
Sollenberger, afterwards.
Q And did you have an opportunity to talk to
the police officer?
A Yeah. He was very kind by the way. I
thanked him for helping my son and so forth. And he gave
me his card. He says, he doesn't look too good. I said,
no, he doesn't. And he said, well, here is my card. And
if you have any other questions about the accident, please
call me. He was very helpful, this police officer was, Mr.
Sollenberger.
Q When you arrived at the hospital, was
Randy -- you said he did not recognize you, did not
recognize you. How do you know he didn't recognize you?
Did you try to talk to him?
A Yes. I tried to talk to him. I put my
hands on him to quiet him down. The doctor told me that's
not him. He said that's not him speaking. We gave him an
injection --
MR. KABUSK: Objection to the hearsay.
MR. GROGAN: Well, it is. not to the truth of
the matter asserted. It is just the impact of the father.
THE WITNESS: He did not recognize me at
all, even while trying to talk to him he didn't.
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BY MR. GROGAN:
Q
A
Q
A
Did you try to speak to your son?
Beg your pardon?
Did you try to speak to Randy?
Yes, I did. I leaned over and held his hand
and tried to speak to him.
Q Did he respond to any of your questions or
any of your statements?
A None whatever.
Q You described some irrational statements.
Just for the record, why don't you go ahead and repeat
those statements?
A Yes. He was very irrational. He wouldn't
even talk. He didn't recognize me.
Q
A
Q
March 9th at the hospital?
A Just the doctor and the nurse trying to
quiet him down.
Q
instructions?
A
Q
instructions?
Was he screaming or crying?
Yes.
Did you see anybody try to speak to Randy on
Did he respond to any of the doctor
NO.
Did he respond to any of the nurses'
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A
questions.
BY MR. KABUSK:
Q
NO.
MR. GROGAN: Thank you. I have no other
CROSS-EXAMINATION
Mr. Vathis, prior to the incident did you
see your son drinking alcohol?
A No. I did not. I didn't even know he drank
alcohol while he was in our house. I don't allow that.
Q You don't allow alcohol in your house?
A No. Maybe a beer. That's all. A light
beer, one or two beers. Very rare.
MR. KABUSK: No further questions.
THE COURT: So what were your observations
of him when he went out to get this fast food?
THE WITNESS: He seemed fairly normal, Your
Honor. He didn't seem drunk at all. I don't know...
THE COURT: What was his speech like?
THE WITNESS: Very clear, like you are
talking now, we are talking, very rational.
THE COURT: And he was walking fine?
THE WITNESS: Yes.
THE COURT: All right. Thank you.
MR. GROGAN: Petitioner Randy Vathis rests,
Your Honor.
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THE COURT: Okay. Anything else?
MR. KABUSK: Nothing further.
(Whereupon, Mr. Grogan .closed on
behalf of the Defendant.)
(Whereupon, Mr. Kabusk closed on
behalf of the Commonwealth.)
(End of proceedings)
38
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.
Barbara E. Graham
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
A. Hess, J.
Judicial District
39
RANDALL CARL VATHIS,
Petitioner
VS.
COMMONWEALTH OF PA.
DEPT. OF TRANSPORTATION,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
02-3029 CIVIL
CIVIL ACTION - LAW
DRIVERS LICENSE APPEAL
IN RE: PETITION FOR RECONSIDERATION
ORDER
AND NOW, this /¥v- day of February, 2003, following hearing, our order of
October 10, 2002, is REINSTATED and petitioner's appeal from the suspension of his driver's
license by notice of the Department of Transportation dated May 30, 2002, is DENIED.
~/~ustin F. Grogan, Esquire
For the Petitioner
George Kabusk, Esquire
For PennDOT
:rim
BY THE COURT,
Ke '
ess, J.
O,,?,-Iq-O--%
RANDALL CARL VATHIS,
Petitioner
V.
COMMONWEALTH OF PA.,
DEPT. OF TRANSPORTATION,
Respondent
RANDALL CARL VATHIS,
Petitioner
V.
COMMONWEALTH OF PA.,
DEPT. OF TRANSPORTATION,
Respondent
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
CIVIL ACTION - LAW
:
: 02-3029 CIVIL TERM
:
: DRIVERS LICENSE APPEAL
: IN THE COURT OF COMMON PLEAS OF
: CUMBERI..d~XlD COUNTY, PENlq'SYLVANIA
:
CIVIL ACTION - LAW
:
: NO. 02-5289 CIVIL TERM
DRIVERS LICENSE APPEAL
:
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Monday, January 13, 2003,
in Courtroom Number 4.
APPEARANCES:
GEORGE KABUSK, Esquire
For the Commonwealth
AUSTIN GROGAN, Esquire
For the Petitioner
INDEX TO EXHIBITS
FOR PENNDOT
Ex. No. 1 - certified driving record
FOR THE PETITIONER/DEFENDANT
Ex. No. 1 - court order
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THE COURT: I believe there are two matters
involving Mr. Vathis. The less complicated of the two is
the more recently filed case at 02-5289, so shall we start
with that?
MR. KABUSK:
MR. GROGAN:
MR. KABUSK:
Yes, Your Honor.
Yes, Judge.
What's been marked as
Commonwealth's Exhibit No. 1 is a packet of documents under
seal and certification.
Grogan.
I have provided a copy to Mr.
Sub-exhibit No. 1 is the official notice of
suspension dated and mailed 10/10/02, effective 9/24/03.
That notice to Mr. Vathis, operator's No. 15389992 informed
him that as a result of his 6/18/2002 conviction of
violating Section 3731 of the Vehicle Code relating to
Driving Under the Influence on 3/9/02 his driving privilege
was suspended for a period of one year. Additionally that
notice of suspension informed him of the Ignition Interlock
requirement.
Sub-exhibit No. 2 is report of Clerk of
Court of Cumberland County, convicted 6/18/02, seal
attached to the original. And you would note the Clerk of
Courts indicated a conviction on 6/18/02 of a violation of
DUI on 3/9/02. I would turn your attention to Box G, the
box no is checked in regard to Act 63 Ignition Interlock
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requirements. The other documents support the Department's
case. Additionally the driving record is attached.
I move for the admission of what's been
marked as Commonwealth's Exhibit No. 1.
THE COURT:
MR. GROGAN:
THE COURT:
MR. KABUSK:
THE COURT:
MR. GROGAN:
I assume there is no objection?
No objection, Your Honor.
Anything else on that?
No, Your Honor.
Okay. Mr. Grogan.
Thank you, Your Honor. On
behalf of Randy Vathis I have a copy of Judge Bayley's
court order dated 24 September 2002 when Judge Bayley
sentenced Mr. Vathis to one DUI charge docketed at 02-0661,
to forty-eight hours to twelve months, and a fine of
$300.00. And then at 0660 he sentenced him to an
additional two days to eleven months and a fine of $300.00.
Judge Bayley did not order any type of Guardian Interlock
system on his car. I will mark this as Defendant's Exhibit
No. 1. Your Honor, I am sorry, it is actually Petitioner's
Exhibit No. 1.
THE COURT: We will make that part of the
record. Anything else for the record of this case?
MR. GROGAN: No, Your Honor. Not from the
petitioner.
MR. KABUSK: Your Honor, if I may, I would
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just like a clarification. If the one-year suspension is
at issue, he was restored on the one year DUI suspension as
well as the Ignition Interlock, so I would ask the
petitioner if he is contesting the one-year suspension.
MR. GROGAN: Right. I think in hindsight I
probably should have been a little bit more articulate in
my motion. We were contesting the Guardian Interlock
aspect of this notice, not the one year suspension of
the - -
THE COURT:
So you are asking particularly
-- and I think that's true in these cases generally, right,
that you are asking that the language beginning with
Ignition Interlock underscored in that paragraph be
stricken?
MR. GROGAN: Yes, Your Honor. I apologize
for the inartful petition.
THE COURT: Okay. Now, in the other matter
I entered an order on the 10th of October, which I found
that the -- and I have reference to 3029 of 02, that the
defendant did not in my view make a knowing refusal of the
blood test but nonetheless felt that under the current
state of the law that he could not meet his burden of proof
without medical testimony and I denied his appeal.
There then followed a petition for
reconsideration, which was on the 20th, and I signed an
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order granting reconsideration and vacating the order of
October 10th, 2002, on the 28th of October. And I
distinctly recall then after that the Commonwealth,
Department of Transportation, filed a motion, because I
read it, asking that that order in turn be vacated and that
my prior order be reinstated and expressing opposition to
my earlier vacation of the order.
not find your motion in this file.
MR. KABUSK:
here, Your Honor.
basis for it.
the record.
MR. KABUSK:
the record, Your Honor.
THE COURT:
I see November 15th.
before you leave?
MR. KABUSK:
THE COURT:
But, Mr. Kabusk, I do
I should have an extra copy
THE COURT: I read it and I understand the
But that's not right, it should be part of
I would ask that it be part of
Okay. And this is time stamped
Will you need another copy of this
I have one, Your Honor.
Okay. And it is a motion in
turn to vacate my order of October 28th, 2002, which I did
not and have not yet signed, and which I understand you
would like to argue before we do anything else.
MR. KABUSK: Your Honor, I reiterate my
motion to vacate. Essentially there is three reasons. One
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is the Department was never served with a copy of the
petitioner's motion. Two, the matter was heard. There was
ample opportunity for the petitioner to present medical
evidence. Even at the conclusion of the hearing the
Department set forth a standard. And at that time the
petitioner did not ask leave to keep the record open.
Therefore, it is essentially asking for a second bite at
the apple.
And the third reason is the standards would
be that expert testimony would only overcome the defense if
alcohol played no role. Here there was testimony and even
a stipulation of the BAC level of .19. Based upon the case
law, and I cited I think seven cases in there, that
essentially having a second hearing would be a waste of the
Court's resources.
Once again, I reaffirm my motion to have the
Court vacate the order on October 28th.
THE COURT: The cases that you cite, you say
seven some cases, they don't actually deal with the
vacation of an order and the grant of a second hearing.
They address themselves to the merits as to why this would
be a fruitless gesture?
MR. KABUSK:
THE COURT:
be heard on that, Mr. Grogan.
Yes, Your Honor.
I don't know whether you want to
I intend not to vacate my
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order of October 28, 2002. I agree with the Commonwealth
that it is extraordinary to grant such a motion without
permitting the other side to be heard from. But I will
note for the record that I felt confident that I could
anticipate the Commonwealth's arguments that the result
would have been the vacation of the order in any event.
And I therefore for that reason felt it was not the highest
and best use of our time to argue whether or not the order
should be vacated.
I understand that the defendant does have
the opportunity and had the opportunity to adduce medical
testimony at the time of the hearing. And all appellants
are charged with the knowledge of the law. I would,
however, guess that the notion that one must have medical
testimony even though one is able to adduce credible
testimony of an altered mental state is probably not the
most well-known point of law and probably came to this
appellant as somewhat of a surprise.
I simply won't address the matter of Mr.
Grogan's opportunity to have requested the opportunity to
leave the record open. The point is he did file a motion
to vacate. It was filed within thirty days. And while we
certainly don't intend to make a habit of this, I am
satisfied that in the interests of justice that it was a
proper use of my discretion. And we will not grant the
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Commonwealth's motion, and my order of October 28, 2002,
remains in effect.
Now, I understand from our conference in
chambers, however, Mr. Grogan, that you do not have medical
testimony?
MR. GROGAN: That's correct, Your Honor.
Just for the record, I have attempted to contact the
doctor, the emergency room doctor, and have been unable to
locate him. I contacted Pinnacle Health on three
occasions. The first time they indicated he was still
aligned with Pinnacle. And the second and third time I
never got any information back from the hospital.
Furthermore, the only other witness that was present at the
time Mr. Vathis was being treated was Mr. Vathis' father,
who has since died about a month ago. So the medical
testimony that I was hoping to offer I have not been able
to secure. Mr. Vathis would like to present himself to the
Court and to express his thoughts if the Court would be
inclined to hear from Mr. Vathis.
THE COURT: Well, I have already found that
as a matter of fact that I believed that he was in such a
mental state that he did not knowingly refuse a blood test.
Is that what you would again say, Mr. Vathis?
MR. GROGAN: What do you want to tell the
Judge?
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MR. VATHIS:
THE COURT:
MR. VATHIS:
If I may?
Yes. Go ahead.
2002 was a very rough year for
me. As the record shows, I lost my career, my marriage, my
house. All of which was my fault I believe. And the
charges that were brought against me, including the two
DUI's, I pled to. I didn't fight them. I didn't waste the
Court's time on that. Including the pornography charge, I
did not waste the Court's time, because I knew I was wrong.
In this case I wanted to fight this, because
I know that I am right, that I had a head injury when my
head hit the windshield and knocked half of my tooth out in
the front. I was delirious in the hospital and did not
wake up until hours later when I was in restraints. I
don't remember this officer being there. I don't remember
doctors, nurses. And I don't believe it was because I was
intoxicated. I hit my head. And from the time they say
they put me in the ambulance -- well, from the time they
say they took me out of the car and put me in the
ambulance, I don't remember a thing until I woke up in
restraints.
THE COURT:
before?
MR. KABUSK:
in the first hearing.
Did he testify to this effect
Your Honor, this testimony was
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that it was.
that.
THE COURT: I just wanted to satisfy myself
MR. GROGAN: Right.
THE COURT: I do recall that he testified to
And you can simply explain to him I believe him.
MR. GROGAN: I know. I think even in your
order you find it as a matter of fact.
THE COURT: I find it as fact.
And I
continue to believe that it is so. But I think we know
what the outcome is going to be, at least at this level.
All right.
MR. GROGAN:
THE COURT:
Anything further?
No, Your Honor.
Thank you.
(End of proceedings)
11
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.
Barbara E. Graham
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
N~~h JA~d~ce~%{ DJistrict
12
RANDALL CARL VATHIS,
Petitioner
COMMONWEALTH OF PA.,
DEPT. OF TRANSPORTATION,
Respondent
: IN THE COURT OF COMMON PLEAS OF
:
: CUMBERED COUNTY, pENWSYLV_~NIA
:
: CIVIL ACTION - LAW
:
: 02-3029 CIVIL TERM
:
: DRIVERS LICENSE APPEAL
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
Monday, September 30, 2002,
in Courtroom Number 4.
APPEARANCES:
AUSTIN F. GROGAN, Esquire
For the Petitioner
GEORGE KABUSK, Esquire
For PennDOT
INDEX TO WITNESSES.
FOR PENNDO%
Officer James Sollenberger
FOR THE PETITIONER
Randall Vathis
Paul Vathis
DIRECT
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INDEX TO EXHIBITS
FOR PENNDOT
MARKED
Ex. No. 1 - Chemical Testing
Warnings
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6
Ex. No. 2 - receipt
Ex. No. 3 - Request for
testing
Ex. No. 4 - blood alcohol
result
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CROSS
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ADMITTED
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RED____!IRECT
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(Whereupon, Commonwealth's Exhibit No. 1
was marked for identification.)
THE COURT:
MR. KABUSK:
MR. GROGAN:
MR. KABUSK:
Good morning.
Good morning, Your Honor.
Good morning.
This is the case of Randall
Carl Vathis versus Commonwealth of Pennsylvania, Department
of Transportation, Case No. 02-3029. This is an appeal
from a one-year suspension as a result of the petitioner's
violation of Section 1547 of the Vehicle Code. That is
relating to chemical test refusal.
By official notice, dated May 30th, 2002,
the Department notified Randall Carl Vathis, operator's
number 15389992, that his operating privilege was being
suspended for a period of one year as a result of his
violation of Section 1547 of the Vehicle Code relating to
chemical refusal on 3/9 of 2002.
The Department now calls Officer James
Sollenberger.
Whereupon, OFFICER JAMES SOLLENBERGER,
having been duly sworn, testified as
BY MR. KABUSK:
Q
follows:
DIRECT EXAMINATION
Officer Sollenberger, please state your name
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and spell your last name for the record'?
A My name is James L. Sollenberger,
S-o-l-l-e-n-b-e-r-g-e-r-
Q And where are you employed?
A Hampden Township Police Department.
Q During the course of your official duties
have you had occasion to investigate an. alleged incident of
DUI on or about March 9th, 2002?
A Yes, sir.
Q Would you please tell the Court about that
incident ?
A I responded to a four car vehicle accident
at the intersection of Orrs Bridge and the Carlisle Pike.
It is right in front of the Hess station. Three vehicles
were sitting in traffic waiting for the light to change,
when a fourth vehicle, driven by Mr. Vathis, failed to stop
and struck vehicle three, which pushed three into two and
two into one.
Q
A
And then what happened?
Further investigation of one of the drivers
of the vehicle when I arrived came up to me and told me
that she had checked on the driver of the striking vehicle
and she thought she smelled alcohol on him. At that time
he was being removed from the vehicle by EMS and fire
personnel. So I continued with my investigation at the
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scene. As quickly as I could I wrapped that up and then
went to the hospital to follow-up on Mr. Vathis.
Q Did you examine Mr. Vathis' vehicle?
A Yes, sir, I did. Just before I left the
scene as we were getting ready to tow it. I went in to
check the glove box for registration and insurance
information that I needed for my accident investigation.
And I noticed a paper bag laying on the passenger side
floor boards. It is a long, thin type of paper bag that I
have only ever seen used at the state stores in
Pennsylvania. I did check the -- inside the bag was a
bottle of I believe it was Seagrams extra dry gin. It was
approximately three quarters empty. I checked the date.
The receipt was under the bottle inside the bag. I checked
the date. It was purchased on that da're, just roughly two
hours before the accident.
Q
approximately?
A
Your Honor?
BY MR. KABUSK:
Q
A
What time did the accident occur
I believe it was 4:15 p.m.
MR. KABUSK: May I approach the witness,
THE COURT: Certainly.
Would you identify what I am showing you?
That is a copy of the receipt that I found
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in the bag inside the vehicle.
MR. KABUSK: Thank you. May I have that
marked as Commonwealth's Exhibit No. 2.
(Whereupon, Commonwealth's Exhibit No. 2
was marked for identification.)
MR. KABUSK: I would move for the admission
of what's been marked as Commonwealth's Exhibit No. 2.
THE COURT: We will admit it unless there is
an objection.
MR. GROGAN: No. No objection. We
stipulate that he was drinking that day.
BY MR. KABUSK:
Q And then what happened?
A At the hospital, sir, I filled out the form,
I don't know the designation for it, but it is the form for
a police officer to request blood to be drawn for a blood
alcohol content test.
MR. KABUSK: May I approach the witness,
Your Honor?
BY MR. KABUSK:
Q
A
sir.
THE COURT: Sure.
Will you identify that form, please?
That's the form that I filled out that day,
A copy of it I should say.
Q Now, you stated that you filled this form
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out?
A
Q
hospital?
A
Q
A
Q
accident?
A
Q
him.
Yes, sir.
Now, did you transport Mr. Vathis to the
No, sir. I did not.
How was he transported to the hospital?
By ambulance, sir.
Did you see Mr. Vathis at the scene of the
Inside the vehicle, sir, yes, sir.
What did you notice about Mr. Vathis?
A There was a lot of peopZLe gathered around
The EMS people were working on him. They were trying
to get him out. As I remember, there was some problem
getting the door open or something tha~5 they had difficulty
getting him out of the vehicle.
Q Okay. Did you notice any obvious injuries
at the scene of the accident?
hospital?
A
Not that I noticed, no, sir.
No blood?
No, sir.
Now, you stated that you went to the
A
Yes, sir.
What happened upon your arrival at the
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hospital?
A I asked where Mr. Vathis was. I identified
myself as a policeman and asked them wh.ere he was at, that
I needed to speak with him. I was directed to -- I don't
know what they call it, a curtained-off area, where Mr.
Vathis was laying on a table. I had filled out the form
that I spoke about earlier. And then I also filled --
Q Okay. That form that you are speaking of,
is that the form that I just handed to you?
A Yes, sir.
Q Would you describe that form?
A At the top it is Pinnac[~e Health System at
Harrisburg Hospital, a Certification of Request for Testing
to Determine Presence of Alcohol and/or Controlled
Substance under Pennsylvania Motor Vehicle Code. Note all
applicable sections of this form must [be completely filled
in.
Q And when you arrived at the hospital, did
you fill this form out?
correct?
A
Yes, sir.
Was it prior to seeing Mr. Vathis?
Yes, sir. I believe it. was.
But you didn't complete it in full, is that
A No, sir. You have to --- I did not know at
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the time if he would take the test or not.
So this is a form the hospital wants you to
Q
fill out?
A
Yes, sir.
MR. KABUSK: Thank you. I move for the
admission of what's -- may I approach the witness, Your
Honor?
THE COURT:
MR. KABUSK:
Certainly.
May I have this marked as
Commonwealth's Exhibit No. 3?
(Whereupon, Commonwealth's Exhibit No. 3
was marked for identification.)
MR. KABUSK: I move for the admission of
Commonwealth's Exhibit No. 3.
MR. GROGAN: No objection, Your Honor.
BY MR. KABUSK:
Q
did you do?
A
Then after you filled tlhat form out, what
I went to where he was at. I got my implied
consent warning out. I filled what I could of that out.
And I don't remember why, but I did have to wait for a few
minutes for something. I don't know if they were doing
something or taking a test or something, but after a few
minutes I did get to speak with Mr. Vathis. In the time
that I was waiting I had asked for one of the hospital
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security staff to come to where I was at.
When I got a chance to speak with Mr.
Vathis, I did read the Implied Consent Law from this form.
MR. KABUSK: May I approach the witness,
Your Honor?
BY MR. KABUSK:
THE COURT: Yes.
Q I am going to show you what's marked as
Commonwealth's Exhibit No. 1. Would you identify that
form?
A
sir, a copy of it.
Is that the implied consent form you
Q
referred to?
A
Q
This is the form that I filled out that day,
Yes, sir, it is.
Now, after you filled tlhis form out, what
did you do then?
A Whenever I had a chance to speak with Mr.
Vathis I read the four areas to Mr. Vathis, making sure
that the security personnel was watching me as a witness as
I did this.
Q Would you read aloud what you read to the
petitioner?
A Yes, sir. Please be advised you are now
under arrest for driving under the influence of alcohol or
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a controlled substance pursuant to Section 3731 of the
Vehicle Code. I am requesting that you submit to a
chemical test of blood. It is my duty as a police officer
to inform you that if you refuse to submit to the chemical
test your operating privileges will be suspended for a
period of one year.
Your Constitutional Rigkts you have as a
criminal defendant, commonly known as the Miranda Rights,
including the right to speak with a la~er and the right to
remain silent, apply only in criminal prosecutions and do
not apply in chemical testing procedures under Pennsylvania
Implied Consent Law, which is a civil, not a criminal
proceeding.
You have no right to speak to a lawyer or
anyone else before taking the chemical test requested by
the police officer. Nor do you have tlhe right to remain
silent when asked by the police officer to submit to a
chemical test unless you agree to submit to the test
requested by the police officer, your conduct will be
deemed a refusal and your operating privileges will be
suspended for one year. Your refusal to submit to chemical
testing under the Implied Consent Law may be introduced
into evidence in a criminal prosecution for driving while
under the influence of alcohol or a controlled substance.
Q You stated you read that word for word?
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form.
A Yes, sir, I did. I read it right from the
Q And then what happened?
A I got no response from Mr. Vathis. Then I
asked him three times to respond if he understood. In
fact, I made a point of holding my fingers up. I looked at
the security guy so I got his attention.. And I asked him
once, then I asked him twice, and then a third time.
What did you specifically ask him, do you
Q
recall?
A
I can't remember word for word, but it was
basically do you understand what I have spoke to you, are
you going to agree to take the test. And if you do not
make any comment, it is going to be considered a refusal.
Q And you did that three lzimes?
A Three times, yes, sir.
Q And what was Mr. Vathis doing while you were
reading and then requesting?
A He was laying on the table, on the gurney,
on his back. He had his arm draped over his eyes. And he
was sobbing and crying.
Q Did you notice any obvious injuries?
A No, sir. I did not.
Q
Did he inform you of any physical or medical
conditions at that time?
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A No, sir. He did not.
Q Did he exhibit any symptoms that would
indicate the presence of a physical or 'medical condition?
Not that I noticed, sir.
And then what happened after you asked him
A
three times?
A
I got information like the security guard's
name and address from my report and made sure I had all my
paperwork. And then I believe I left the hospital, sir.
Q So you considered his actions a refusal?
A Yes, sir.
Q And, once again, what were his actions to
you that you considered it to be a refusal?
A When I was reading it, and then the point
where I asked him three times to respond, he laid on the
gurney on his back with his arm draped over his eyes crying
and sobbing, not responding other than that.
Q Were you close enough that he could hear
you?
MR. GROGAN: Objection, Your Honor. It
calls for speculation on what this officer thought Mr.
Vathis heard.
THE COURT: Well, we will not receive it for
I am going to receive that as a lay opinion
And I think a lay
that purpose.
that he was close enough to be heard.
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person can express an opinion about that.
BY MR. KABUSK:
Q
A
Approximately how close 'were you to him?
I was standing less than two feet from him,
sir, right beside him.
MR. KABUSK: I move for the admission of
Commonwealth's Exhibit No. 1, 2 and 3 if I haven't done so
already.
THE COURT:
MR. GROGAN:
objection, Your Honor.
THE COURT:
MR. KABUSK:
BY MR. GROGAN:
Q
I think you have.
Yes, I think so.
I have no
Okay.
I have no further questions.
CROSS EXAMINATION
Officer Sollenberger, just to back up to the
scene of the accident. When you arrived Mr. Vathis was
stuck in his car, is that correct?
A That's correct, sir.
Q And you did not interview Mr. Vathis at that
point?
A No, sir.
Q It is my understanding from the testimony
here today and from Mr. Vathis' recol].ection -- or from the
testimony here today, that he was stuck in the car, is that
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correct?
A Yes, sir.
Q And the EMS people were trying to attend to
him, is that correct?
A Yes, sir.
Q And when I say EMS, I mean the emergency
personnel that drive the ambulance to the scene of the
accident?
A
Q
Yes, sir.
You also indicated from testimony here today
that the fire department was there?
A Yes, sir.
Q And the fire department was actually trying
to somehow open up the car to get him out of the vehicle?
A Yes, sir.
Q And so when you were there, you had not
actually interacted with Mr. Vathis at all?
A That's correct, sir.
Q And the only interaction that you had with
Mr. Vathis was at the hospital?
A Yes, sir.
Q I am talking about March 9th. I realize
there may have been subsequent involvement.
A Yes, sir.
Q After Mr. Vathis was taken tO the hospital
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you went to speak with him, is that correct?
A Yes, sir.
Q But you had also spoken 'with I guess the
emergency personnel that treated him at the scene of the
accident, is that right?
A I don't believe I spoke with them. I spoke
with witnesses and other people at the scene, other people
that were involved in the accident.
Q I am looking at the search warrant that you
filed to get his blood test.
search warrant?
A
Q
desk.
Do you have a copy of your
I have it, but it is...
I realize it is in all the paperwork on your
Why don't you just look down towards the
bottom two paragraphs when you relate to people you spoke
to.
Yes, sir.
It talks about the fact that you had
interviewed the EMT personnel, is that correct?
A I believe it was. I talked to the emergency
room personnel. And they related that it was the same
thing, that the EMT's and the ambulance people told them,
sort of secondhand.
Q Now, Mr. Vathis was not responsive to any
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questions, is that correct?
A That's what they told me, yes, sir.
Q And that he was babbling and crying when
they were trying to tend to his needs?
A Yes, sir.
Q And you also confirmed that with the
emergency room personnel, that when they were trying to
treat him he was unresponsive to any questions by the
emergency room personnel?
A He would not answer questions, yes, sir.
Q And that even from your testimony he was
laying there crying with an arm over his eyes?
A That's correct, sir.
Q Did you hear him ask to be let alone to die
or any suicide statements?
A I did not hear that, sir, no, sir.
Q Did they tell you that he was asking to die
and to commit suicide?
A I found that out later, I believe through
reading the paperwork I got from the search warrant, sir,
yes, sir.
Q That he wanted to die and was crying to be
allowed to commit suicide?
A That he wanted to die.
Q Suicide was probably the wrong term. Now,
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when you interviewed Mr. Vathis, he did not even
acknowledge you were there, isn't that ~zrue?
A That's correct, yes.
Q He basically kept his eyes covered and
crying, is that your testimony?
A That is my testimony, sir.
Q Did he ever acknowledge that you were there?
A No, sir.
Q Did he ever even look at. you and make either
eye contact or some type of contact that he saw you
standing there two feet from him?
A No, sir.
Q Did he ever respond to any questions from
anybody in your presence on March 9th, 2002?
A No, sir.
Q Other than just crying 'there and sobbing,
did he ever speak to anybody?
Not that I heard, no, sir.
You were asked on direct if he told you of
But he never told you of anything, isn't
A
Q
any injuries.
that correct?
A
Q
That's correct, sir.
And other than just crying there, he just
laid there, is that true?
A Yes, sir.
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evening?
Q Did you speak with his father later that
A
At the emergency room, sir.
I am talking about at the --
At the hospital.
At Harrisburg Hospital.
Yes, sir, I did.
And did you relay to the fact that he was
just incoherent and babbling while you were interviewing
him?
A
Q
I don't remember that, sir.
Now, as a result of your investigation you
actually obtained a search warrant, isn't that correct?
That's correct, sir.
And you actually received his blood alcohol
A
test results?
A
Q
A
questions.
Yes, sir.
And from that you filed the DUI charges?
Yes, sir.
MR. GROGAN: Thank you. I have no further
REDIRECT EXAMINATION
BY MR. KABUSK:
Q Yes, Officer, you were asked if you obtained
a search warrant, and then you were asked if you received
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the results.
A
Q
A
alcohol content, sir.
MR. KABUSK:
Your Honor?
BY MR. KABUSK:
Q
hospital?
A
Did you indeed receive the results?
Yes, sir, I did.
And what were those results?
I believe they were 0.19 percent blood
May I approach the witness,
THE COURT: Yes.
Is this a copy of what you received from the
Yes, sir. Because I remember I asked -- I
told them I needed to know who performed the test and who
the, if I am pronouncing it correctly, phlebotomist was.
And where on there does it indicate what the
Q
result is?
A
Q
Alcohol 0.19.
And then you were asked if you followed up
on paperwork from the hospital in regard to whether the
petitioner was coherent, is that correct?
A I am sorry. I am not sure I understand.
Q I believe there was a question that you were
asked regarding if the paperwork from the hospital
indicated whether the petitioner was essentially
nonresponsive. I believe that was a question. And I would
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like to follow-up on that. Additionally in that paperwork,
did that paperwork indicate whether the petitioner was
intoxicated?
A
Q
The search warrant paperwork, sir?
Whatever paperwork you followed up on?
MR. GROGAN: If it helps, we will stipulate
that his BAC was .19, which is above the legal limit.
BY MR. KABUSK:
Q What I am saying is did the doctors -- do
you have any indication that the doctors indicated that he
was intoxicated and not cooperative?
A At the hospital that night, no, sir, I don't
think I ever actually spoke with doctors. I know I spoke
with a nurse.
Q Okay.
you, anything in that regard?
A Just that he has been nonresponsive.
don't remember her saying anything about alcohol or
anything else.
And what did the nurse indicate to
MR. KABUSK:
MR. GROGAN:
THE COURT:
No further questions.
No recross.
Thank you.
(Whereupon, Commonwealth's Exhibit No. 4
was marked for identification.)
MR. KABUSK: I would move for the admission
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of Commonwealth's Exhibit No. 4.
MR. GROGAN: No. 4 I think is the test
result from the hospital showing a BAC of .19.
MR. KABUSK: That's correct. And that is
the Department's case. And the Department reserves the
right to recall its witness.
THE COURT: Call Randy Vathis.
Whereupon, RANDALL VATHIS, having been
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q Randy, for the record, why don't you go
ahead and state your name and address?
A Randall Vathis. 1413 Silver Creek Drive,
Mechanicsburg, Pennsylvania.
Q
Is that in Hampden Township?
Yes, sir, it is.
How long have you lived there?
Approximately six years.
Is that your home?
Yes, it is.
And who do you live with?
I live alone.
Just for the record, what do you do for a
living?
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A
I am retired.
And who are you retired from?
The Commonwealth of Pennsylvania.
And how long have you been retired from the
Commonwealth of Pennsylvania?
A Since February.
Q Now, last March of 2002 were you living at
your current residence, or were you living somewhere else?
A I was living somewhere else.
Q And where were you living at?
A I was living at my parents' home.
Q What address is that?
A 5110 Inverness Drive.
Q And why were you residing at your parents'
residence last March of 2002?
A A few weeks before that my home had incurred
a fire.
Q And that home that had the fire is located
in Hampden Township?
A Yes.
Q Did fire result in an earlier DUI charge
being filed against you?
A Yes, it did.
Q And was that somewhat of a notorious fire
where there was a lot of police involvement?
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that day?
bottle.
A
Yes, there was.
Now, on March 9th of 2002 were you drinking
A Yes, I was.
Q And you heard testimony about this gin
What do you remember drinking on March 9th, 2002?
A I remember drinking some gin that day.
Q And what caused you to be out on the road on
a Saturday afternoon, March 9th?
A I was going to get dinner for my parents and
myself.
Q Okay. And where were you planning to go?
A To a fast food restaurant in Camp Hill.
Q And what do you remember of that Saturday
afternoon?
A I remember walking out of the house and
getting in my car and backing out of the driveway. And
that's all I remember.
Q Okay. Do you know what the distance from
your parents' driveway to where the accident occurred how
many miles that is or what the distance is?
A Approximately three miles.
Q Do you have any recollection of driving that
three miles?
A No, I don't.
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Q After you got in your car -- what kind of
vehicle were you driving that day?
A It was a 1991 Oldsmobile I believe.
Q And after you got in your car what's your
next recollection from March 9th, from this accident?
Waking up in the hospital.
And what do you remember about waking up in
A
the hospital?
A
gurney.
Q
I remember that I was strapped down to a
When you say you were strapped down, how
were you strapped down?
A My ankles and my wrists were tethered down
with straps. And I had a brace, which ran from the back of
my neck up around the back of my head.
Did you suffer injuries as a result of this
Q
accident?
A
Q
Yes, I did.
What kind of injuries did you sustain as a
result of the accident?
A My head hit the windshield.
Q Go ahead.
A I was thrown forward. My head hit the
windshield -- my face. My chest had a severe impact with
the steering wheel. And through that whole process I also
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chipped my tooth.
Q For the record, which tooth did you chip?
A My front.
Q Front center tooth?
A Front center tooth.
Q Now, you indicated you hit your head. Do
you have any recollection of hitting your head?
A No, sir.
Q Did you have any injuries or bruises
sustained afterwards?
A Yes, I did.
MR. KABUSK: Your Honor,. I object to his
testimony. He testified as to what his injuries were. And
then he is testifying he doesn't have any recollection of
those injuries.
THE COURT: I am assuming this is all based
on his sense of himself after he woke 'up?
MR. GROGAN: I can establish that.
BY MR. GROGAN:
Q After you woke up, did you see injuries on
yourself?
A Yes.
Q Did you have those injuries before you got
in your vehicle on March 9th?
A No, I didn't.
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Q In addition to the chipp,ed tooth, what type
of injuries did you have on your chest?
A My chest hurt very severely.
Q Did you have the impression of the steering
wheel on your chest?
A Yes, sir.
Q Did you have any other head injuries?
A When I struck the windshield, it must have
been pretty severe, because I had black and blue marks
throughout my entire face and especial].y around my nose and
under my eyes.
Q Were those black and blue marks evidenced on
October 9th, or did they come up later on?
A Probably a day later.
Q Now, as a result of the accident were you
asked to be admitted to the hospital?
A Yes.
Q Was Crisis Intervention called?
A Yes.
Q Did they want you to submit or admit
yourself to the hospital for observations?
A
Yes.
Did you agree to do that?
No.
Were you eventually discharged from the
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hospital?
A
Yes.
And who took you home?
My father.
And after that incident did you have to be
processed and have your photograph taken?
Yes.
Did the County take your picture?
Yes.
Did the picture show these injuries on your
A
face?
A
Q
DUI arrest?
A
Q
Yes.
Was that part of your p~ocessing for your
Yes.
Now, you indicated that you had a prior DUI
about two weeks before this incident. Were you going
through other legal problems?
MR. KABUSK: Your Honor, I object to this
regarding the relevance of this refusal.
MR. GROGAN: Well, it is to his knowledge of
what a refusal would have caused him. I think the issue is
whether or not --
THE COURT: That he had learned and he
realized the ramifications of the refusal. I will permit
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it.
BY MR. GROGAN:
Q When you were arrested two weeks before that
for a DUI, did you submit to an analysis of your breath?
A I submitted to a blood test.
Q Excuse me, to a blood test. Were you
advised of what would happen if you had[ refused to submit
to a blood test two weeks before that?
A Yes. When I was at the Booking center the
employee asked me if I would take a blood test. And I
asked him what the consequences would be if I didn't. And
he distinctly told me that I would lose my license for one
year because of that alone. And that if I was convicted of
the DUI, I would lose my license for an additional year.
Q And this was two weeks before this incident?
A That is correct.
Q And did you comply with that first request
back in February of 2002?
A Yes, I did.
Q Now, on March 9th, 2002, do you have any
recollection of meeting Officer Sollenberger?
A No, sir. I have never seen Mr. Sollenberger
until today.
Q
In the hospital do you have any recollection
of him interviewing you?
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A No, sir.
Q Do you have any recollection of him telling
you that he wanted you to submit to a blood test?
A No.
Q Do you have any recollection -- the first
time you remember seeing this officer is today?
A That is correct.
Q In the hospital were you aware of what was
going on while you were being treated by the doctor in the
emergency room?
A No, sir.
Q And your first recollection in the hospital
is sometime later when you wake up?
A Yes.
Q And just for the record, you described being
secured to the hospital bed?
A Yes.
MR. GROGAN: I have no other questions.
Thank you.
CROSS-EXAMINATION
BY MR. KABUSK:
Q Mr. Vathis, you admit that you were drinking
prior to the incident?
A Yes.
Q And you admit that you have no recollection
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of the incident?
A That is correct.
Q And were you voluntarily consuming alcohol
prior to the incident?
A Yes.
Q And would you agree that the consumption of
alcohol could be a factor in you not recollecting the
events?
A
Q
of the events after you left your driveway, is that
correct?
A
Q
is it?
I don't know.
But you stated that you have no recollection
That is correct.
And that's not where the accident occurred,
A That is correct.
Q So you drove, and then you were involved in
an accident, correct?
A That is correct.
Q And how do you know you were involved in an
accident?
A When I woke up in the hospital I overheard
somebody say that I had been in an accident.
Q And then you were disckarged from the
hospital, is that correct?
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A Yes, sir.
Q Do you know why you were secured to the
gurney while you were in the hospital?
A They had taken tests, x-rays, I believe an
EKG. I don't remember all the terminology. But I was told
they did a battery of tests on me. And. I know they did
because I got the bill in the mail for it.
Q
experience?
A
I woke up.
before that.
Q
test?
A
BY MR. GROGAN:
Q
blood test?
A
Q
Were you cooperative throughout the hospital
I don't recall the hospital experience until
And I believe the tests had already been done
Did you ever submit to the requested blood
No.
MR. KABUSK: No further questions.
REDIRECT EXAMINATION
Do you remember being asked to submit to a
No.
Do you have any recollection of any
interview by any person on March 9th regarding your DUI
arrest?
A No.
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remember?
accident.
MR. GROGAN: No other questions.
THE COURT: When did you wake up, do you
THE WITNESS: It was several hours after the
I don't remember the exact time.
THE COURT: Thank you.
MR. GROGAN: Call Mr. Paul Vathis.
Whereupon, PAUL VATHIS, having been duly
sworn, testified as follows:
DIRECT EXAMINAT][ON
BY MR. GROGAN:
Q Mr. Vathis, just for the record, why don't
you state your name and where you live?
A My name is Paul Vathis, V-a-t-h-i-s. I live
at 5101 Inverness Drive, Mechanicsburg.
Q Mr. Vathis, what is your relationship to
Randy Vathis?
A He is my son.
Q Mr. Vathis, last March of 2002 was Randy
living at your house?
A Yes, he was.
Q And were you here during his testimony this
morning?
A
Yes.
Now, on March 9th did he go out to buy
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dinner?
A
Q
about Randy?
A
about Randy.
Yes, he did.
And did you eventually get a phone call
I received a phone call from the hospital
They first asked me if I was Mr. Vathis, and
do I have a son named Randall. And I said yes. He says,
well, we have your son here in the emergency room of the
hospital. Come on down.
Q When you arrived at the hospital, was Randy
being treated by emergency room personnel?
A Yes. Yes. He was bein~ completely -- it
was a doctor and several nurses. He was strapped on the
gurney. Believe me, when you see your son laying on a
gurney and strapped down and very incoherent yelling I want
to die --
Q
you see that?
A
Q
there?
A
So when you say he was strapped down, did
Yes.
How was his demeanor, how was he acting
He didn't recognize me. He did not
recognize me at all, and completely irrational, and just
yelling I want to die. I want to die. Get me out of here.
I want to die.
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Q And was the police officer there?
A I met the police officer afterwards, Mr.
Sollenberger, afterwards.
Q And did you have an opportunity to talk to
the police officer?
A Yeah. He was very kind by the way. I
thanked him for helping my son and so forth. And he gave
me his card. He says, he doesn't look too good. I said,
no, he doesn't. And he said, well, here is my card. And
if you have any other questions about the accident, please
call me. He was very helpful, this police officer was, Mr.
Sollenberger.
Q When you arrived at the hospital, was
Randy -- you said he did not recognize you, did not
recognize you. How do you know he didn't recognize you?
Did you try to talk to him?
A Yes. I tried to talk to him. I put my
hands on him to quiet him down. The doctor told me that's
We gave him an
not him. He said that's not him speaking.
injection --
MR. KABUSK: Objection to the hearsay.
MR. GROGAN: Well, it is not to the truth of
the matter asserted. It is just the impact of the father.
THE WITNESS: He did not recognize me at
all, even while trying to talk to him he didn't.
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BY MR. GROGAN:
Q
A
Q
A
Did you try to speak to your son?
Beg your pardon?
Did you try to speak to Randy?
Yes, I did. I leaned over and held his hand
and tried to speak to him.
Q Did he respond to any of your questions or
any of your statements?
A None whatever.
Q You described some irrational statements.
Just for the record, why don't you go ahead and repeat
those statements?
A
even talk. He didn't recognize me.
Q
A
Q
Yes. He was very irrational. He wouldn't
Was he screaming or crying?
Yes.
Did you see anybody try to speak to Randy on
March 9th at the hospital?
A Just the doctor and the nurse trying to
quiet him down.
Q
instructions?
A
Q
instructions?
Did he respond to any of the doctor
No.
Did he respond to any of the nurses'
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A
questions.
No.
MR. GROGAN:
Thank you.
CROSS-EXAMINATION
I have no other
BY MR. KABUSK:
Q
see your son drinking alcohol?
A No. I did not.
Mr. Vathis, prior to the incident did you
I didn't even know he drank
alcohol while he was in our house.
Q
A
beer, one or two beers. Very rare.
No. Maybe a beer. That's all.
I don't allow that.
You don't allow alcohol in your house?
A light
MR. KABUSK: No further questions.
THE COURT: So what were your observations
of him when he went out to get this fast food?
THE WITNESS: He seemed fairly normal, Your
Honor. He didn't seem drunk at all. I don't know...
THE COURT: What was his speech like?
THE WITNESS: Very clear, like you are
talking now, we are talking, very rational.
THE COURT: And he was walking fine?
THE WITNESS: Yes.
THE COURT: All right.
MR. GROGAN:
Thank you.
Petitioner Randy Vathis rests,
Your Honor.
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THE COURT: Okay. Anything else?
MR. KABUSK: Nothing further.
(Whereupon, Mr. Grogan closed on
behalf of the Defendant.)
(Whereupon, Mr. Kabusk closed on
behalf of the Commonwealth.)
(End of proceedings)
38
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.
Barbara E. Graham
official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
~.d~ec%%{ JDistrict
39
RANDALL CARL VATHIS,
Petitioner
COMMONWEALTH OF PA.,
DEPT. OF TRANSPORTATION,
Respondent
RANDALL CARL VATHIS,
Petitioner
Vo
COMMONWEALTH OF PA.,
DEPT. OF TRANSPORTATION,
Respondent
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
CIVIL ACTION - LAW
:
: 02-3029 CIVIL TERM
:
: DRIVERS LICENSE APPEAL
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: NO. 02-5289 CIVIL TERM
:
: DRIVERS LICENSE APPEAL
:
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Monday, January 13, 2003,
in Courtroom Number 4.
APPEARANCES:
GEORGE KABUSK, Esquire
For the Commonwealth
AUSTIN GROGAN, Esquire
For the Petitioner
INDEX TO EXHIBITS
FOR PENNDOT
Ex. No. 1 - certified driving record
FOR THE PETITIONER/DEFENDANT
Ex. No. 1 - court order
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THE COURT: I believe there are two matters
involving Mr. Vathis. The less complicated of the two is
the more recently filed case at 02-5289, so shall we start
with that?
MR. KABUSK:
MR. GROGAN:
MR. KABUSK:
Yes, Your Honor.
Yes, Judge.
What's been marked as
Commonwealth's Exhibit No. 1 is a packet of documents under
seal and certification.
Grogan.
I have provided a copy to Mr.
Sub-exhibit No. 1 is the official notice of
suspension dated and mailed 10/10/02, effective 9/24/03.
That notice to Mr. Vathis, operator's No. 15389992 informed
him that as a result of his 6/18/2002 conviction of
violating Section 3731 of the Vehicle Code relating to
Driving Under the Influence on 3/9/02 his driving privilege
was suspended for a period of one year. Additionally that
notice of suspension informed him of the Ignition Interlock
requirement.
Sub-exhibit No. 2 is report of Clerk of
Court of Cumberland County, convicted 6/18/02, seal
attached to the original. And you would note the Clerk of
Courts indicated a conviction on 6/18/02 of a violation of
DUI on 3/9/02. I would turn your attention to Box G, the
box no is checked in regard to Act 63 Ignition Interlock
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requirements. The other documents support the Department's
case. Additionally the driving record is attached.
I move for the admission of what's been
marked as Commonwealth's Exhibit No. 1.
THE COURT:
MR. GROGAN:
THE COURT:
MR. KABUSK:
THE COURT:
MR. GROGAN:
I assume there is no objection?
No objection, Your Honor.
Anything else on that?
No, Your Honor.
Okay. Mr. Grogan.
Thank you, Your Honor. On
behalf of Randy Vathis I have a copy of Judge Bayley's
court order dated 24 September 2002 when Judge Bayley
sentenced Mr. Vathis to one DUI charge docketed at 02-0661,
to forty-eight hours to twelve months, and a fine of
$300.00. And then at 0660 he sentenced him to an
additional two days to eleven months and a fine of $300.00.
Judge Bayley did not order any type of Guardian Interlock
system on his car. I will mark this as Defendant's Exhibit
No. 1. Your Honor, I am sorry, it is actually Petitioner's
Exhibit No. 1.
THE COURT: We will make that part of the
record. Anything else for the record of this case?
MR. GROGAN: No, Your Honor. Not from the
petitioner.
MR. KABUSK: Your Honor, if I may, I would
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just like a clarification. If the one-year suspension is
at issue, he was restored on the one year DUI suspension as
well as the Ignition Interlock, so I would ask the
petitioner if he is contesting the one-year suspension.
MR. GROGAN: Right. I think in hindsight I
probably should have been a little bit more articulate in
my motion. We were contesting the Guardian Interlock
aspect of this notice, not the one year suspension of
the --
THE COURT: So you are asking particularly
-- and I think that's true in these cases generally, right,
that you are asking that the language beginning with
Ignition Interlock underscored in that paragraph be
stricken?
MR. GROGAN: Yes, Your Honor. I apologize
for the inartful petition.
THE COURT: Okay. Now, in the other matter
I entered an order on the 10th of October, which I found
that the -- and I have reference to 3029 of 02, that the
defendant did not in my view make a knowing refusal of the
blood test but nonetheless felt that under the current
state of the law that he could not meet his burden of proof
without medical testimony and I denied his appeal.
There then followed a petition for
reconsideration, which was on the 20th, and I signed an
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order granting reconsideration and vacating the order of
October 10th, 2002, on the 28th of October. And I
distinctly recall then after that the Commonwealth,
Department of Transportation, filed a motion, because I
read it, asking that that order in turn be vacated and that
my prior order be reinstated and expressing opposition to
my earlier vacation of the order. But, Mr. Kabusk, I do
not find your motion in this file.
MR. KABUSK: I should have an extra copy
here, Your Honor.
THE COURT: I read it and I understand the
basis for it. But that's not right, it should be part of
the record.
MR. KABUSK: I would ask that it be part of
the record, Your Honor.
THE COURT: Okay. And this is time stamped
I see November 15th. Will you need another copy of this
before you leave?
MR. KABUSK: I have one, Your Honor.
THE COURT: Okay. And it is a motion in
turn to vacate my order of October 28th, 2002, which I did
not and have not yet signed, and which I understand you
would like to argue before we do anything else.
MR. KABUSK: Your Honor, I reiterate my
motion to vacate. Essentially there is three reasons. One
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is the Department was never served with a copy of the
petitioner's motion. Two, the matter was heard. There was
ample opportunity for the petitioner to present medical
evidence. Even at the conclusion of the hearing the
Department set forth a standard. And at that time the
petitioner did not ask leave to keep the record open.
Therefore, it is essentially asking for a second bite at
the apple.
And the third reason is the standards would
be that expert testimony would only overcome the defense if
alcohol played no role. Here there was testimony and even
a stipulation of the BAC level of .19. Based upon the case
law, and I cited I think seven cases in there, that
essentially having a second hearing would be a waste of the
Court's resources.
Once again, I reaffirm my motion to have the
Court vacate the order on October 28th.
THE COURT: The cases that you cite, you say
seven some cases, they don't actually deal with the
vacation of an order and the grant of a second hearing.
They address themselves to the merits as to why this would
be a fruitless gesture?
MR. KABUSK:
THE COURT:
be heard on that, Mr. Grogan.
Yes, Your Honor.
I don't know whether you want to
I intend not to vacate my
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order of October 28, 2002. I agree with the Commonwealth
that it is extraordinary to grant such a motion without
permitting the other side to be heard from. But I will
note for the record that I felt confident that I could
anticipate the Commonwealth's arguments that the result
would have been the vacation of the order in any event.
And I therefore for that reason felt it was not the highest
and best use of our time to argue whether or not the order
should be vacated.
I understand that the defendant does have
the opportunity and had the opportunity to adduce medical
testimony at the time of the hearing. And all appellants
are charged with the knowledge of the law. I would,
however, guess that the notion that one must have medical
testimony even though one is able to adduce credible
testimony of an altered mental state is probably not the
most well-known point of law and probably came to this
appellant as somewhat of a surprise.
I simply won't address the matter of Mr.
Grogan's opportunity to have requested the opportunity to
leave the record open. The point is he did file a motion
to vacate. It was filed within thirty days. And while we
certainly don't intend to make a habit of this, I am
satisfied that in the interests of justice that it was a
proper use of my discretion. And we will not grant the
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Commonwealth's motion, and my order of October 28, 2002,
remains in effect.
Now, I understand from our conference in
chambers, however, Mr. Grogan, that you do not have medical
testimony?
MR. GROGAN: That's correct, Your Honor.
Just for the record, I have attempted to contact the
doctor, the emergency room doctor, and have been unable to
locate him. I contacted Pinnacle Health on three
occasions. The first time they indicated he was still
aligned with Pinnacle. And the second and third time I
never got any information back from the hospital.
Furthermore, the only other witness that was present at the
time Mr. Vathis was being treated was Mr. Vathis' father,
who has since died about a month ago. So the medical
testimony that I was hoping to offer I have not been able
to secure. Mr. Vathis would like to present himself to the
Court and to express his thoughts if the Court would be
inclined to hear from Mr. Vathis.
THE COURT: Well, I have already found that
as a matter of fact that I believed that he was in such a
mental state that he did not knowingly refuse a blood test.
Is that what you would again say, Mr. Vathis?
MR. GROGAN: What do you want to tell the
Judge?
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MR. VATHIS:
THE COURT:
MR. VATHIS:
If I may?
Yes. Go ahead.
2002 was a very rough year for
me. As the record shows, I lost my career, my marriage, my
house. All of which was my fault I believe. And the
charges that were brought against me, including the two
DUI's, I pled to. I didn't fight them. I didn't waste the
Court's time on that. Including the pornography charge, I
did not waste the Court's time, because I knew I was wrong.
In this case I wanted to fight this, because
I know that I am right, that I had a head injury when my
head hit the windshield and knocked half of my tooth out in
the front. I was delirious in the hospital and did not
wake up until hours later when I was in restraints. I
don't remember this officer being there. I don't remember
doctors, nurses. And I don't believe it was because I was
intoxicated. I hit my head. And from the time they say
they put me in the ambulance -- well, from the time they
say they took me out of the car and put me in the
ambulance, I don't remember a thing until I woke up in
restraints.
THE COURT:
before?
MR. KABUSK:
in the first hearing.
Did he testify to this effect
Your Honor, this testimony was
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that it was.
that.
THE COURT: I just wanted to satisfy myself
MR. GROGAN: Right.
THE COURT: I do recall that he testified to
And you can simply explain to him I believe him.
MR. GROGAN: I know. I think even in your
order you find it as a matter of fact.
THE COURT: I find it as fact.
And I
continue to believe that it is so. But I think we know
what the outcome is going to be, at least at this level.
Ail right.
MR. GROGAN:
THE COURT:
Anything further?
No, Your Honor.
Thank you.
(End of proceedings)
11
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.
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.
Dat~
Kev~n A. Hess, J.
N~hth Judicial District
/
12
RANDALL CARL VATHIS,
Petitioner
Vo
COMMONWEALTH OF PA.,
DEPT. OF TRANSPORTATION,
Respondent
IN THE COURT OF COMMON PLEAS OF
:
CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION - LAW
:
: 02-3029 CIVIL TERM
:
: DRIVERS LICENSE APPEAL
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
Monday, September 30, 2002,
in Courtroom Number 4.
APPEARANCES:
AUSTIN F. GROGAN, Esquire
For the Petitioner
GEORGE KABUSK, Esquire
For PennDOT
INDEX TO WITNESSES
FOR PENNDOT
Officer James Sollenberger
FOR THE PETITIONER
Randall Vathis
Paul Vathis
DIRECT CROSS
REDIRECT
3 14 19
22 30
33 37
32
INDEX TO EXHIBITS
FOR PENNDOT MARKED
Ex. No. 1 - Chemical Testing
Warnings 3 14
Ex. No. 2 - receipt 6 14
Ex. No. 3 - Request for
testing 9 14
Ex. No. 4 - blood alcohol
result 21 22
ADMITTED
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(Whereupon, Commonwealth's Exhibit No. 1
was marked for identification.)
THE COURT:
MR. KABUSK:
MR. GROGAN:
MR. KABUSK:
Good morning.
Good morning, Your Honor.
Good morning.
This is the case of Randall
Carl Vathis versus Commonwealth of Pennsylvania, Department
of Transportation, Case No. 02-3029. This is an appeal
from a one-year suspension as a result of the petitioner's
violation of Section 1547 of the Vehicle Code. That is
relating to chemical test refusal.
By official notice, dated May 30th, 2002,
the Department notified Randall Carl Vathis, operator's
number 15389992, that his operating privilege was being
suspended for a period of one year as a result of his
violation of Section 1547 of the Vehicle Code relating to
chemical refusal on 3/9 of 2002.
The Department now calls Officer James
Sollenberger.
Whereupon, OFFICER JAMES SOLLENBERGER,
having been duly sworn, testified as
follows:
BY MR. KABUSK:
Q
DIRECT EXAMINATION
Officer Sollenberger, please state your name
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and spell your last name for the record?
A My name is James L. Sollenberger,
S-o-l-l-e-n-b-e-r-g-e-r.
Q And where are you employed?
A Hampden Township Police Department.
Q During the course of your official duties
have you had occasion to investigate an alleged incident of
DUI on or about March 9th, 2002?
A Yes, sir.
Q Would you please tell the Court about that
incident?
A I responded to a four car vehicle accident
at the intersection of Orrs Bridge and the Carlisle Pike.
It is right in front of the Hess station. Three vehicles
were sitting in traffic waiting for the light to change,
when a fourth vehicle, driven by Mr. Vathis, failed to stop
and struck vehicle three, which pushed three into two and
two into one.
Q
A
And then what happened?
Further investigation of one of the drivers
of the vehicle when I arrived came up to me and told me
that she had checked on the driver of the striking vehicle
and she thought she smelled alcohol on him. At that time
he was being removed from the vehicle by EMS and fire
personnel. So I continued with my investigation at the
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scene. As quickly as I could I wrapped that up and then
went to the hospital to follow-up on Mr. Vathis.
Q Did you examine Mr. Vathis' vehicle?
A Yes, sir, I did. Just before I left the
scene as we were getting ready to tow it. I went in to
check the glove box for registration and insurance
information that I needed for my accident investigation.
And I noticed a paper bag laying on the passenger side
floor boards. It is a long, thin type of paper bag that I
have only ever seen used at the state stores in
Pennsylvania. I did check the -- inside the bag was a
bottle of I believe it was Seagrams extra dry gin. It was
approximately three quarters empty. I checked the date.
The receipt was under the bottle inside the bag. I checked
the date. It was purchased on that date, just roughly two
hours before the accident.
Q
approximately?
A
Your Honor?
BY MR. KABUSK:
Q
A
What time did the accident occur
I believe it was 4:15 p.m.
MR. KABUSK: May I approach the witness,
THE COURT: Certainly.
Would you identify what I am showing you?
That is a copy of the receipt that I found
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in the bag inside the vehicle.
MR. KABUSK: Thank you. May I have that
marked as Commonwealth,s Exhibit No. 2.
(Whereupon, Commonwealth,s Exhibit No. 2
was marked for identification.)
MR. KABUSK: I would move for the admission
of what's been marked as Commonwealth's Exhibit No. 2.
THE COURT:
an objection.
MR. GROGAN: No. No objection. We
stipulate that he was drinking that day.
BY MR. KABUSK:
Q And then what happened?
A At the hospital, sir, I filled out the form,
I don't know the designation for it, but it is the form for
a police officer to request blood to be drawn for a blood
alcohol content test.
MR. KABUSK:
Your Honor?
We will admit it unless there is
BY MR. KABUSK:
Q
A
sir.
May I approach the witness,
THE COURT: Sure.
Will you identify that form, please?
That's the form that I filled out that day,
A copy of it I should say.
Q Now, you stated that you filled this form
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out?
hospital?
accident?
A
Yes, sir.
Now, did you transport Mr. Vathis to the
A
No, sir. I did not.
How was he transported to the hospital?
By ambulance, sir.
Did you see Mr. Vathis at the scene of the
A
Inside the vehicle, sir, yes, sir.
What did you notice about Mr. Vathis?
There was a lot of people gathered around
him. The EMS people were working on him. They were trying
to get him out. As I remember, there was some problem
getting the door open or something that they had difficulty
getting him out of the vehicle.
Q Okay. Did you notice any obvious injuries
at the scene of the accident?
hospital?
A
Not that I noticed, no, sir.
No blood?
No, sir.
Now, you stated that you went to the
A
Yes, sir.
What happened upon your arrival at the
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hospital?
A I asked where Mr. Vathis was. I identified
myself as a policeman and asked them where he was at, that
I needed to speak with him. I was directed to -- I don't
know what they call it, a curtained-off area, where Mr.
Vathis was laying on a table. I had filled out the form
that I spoke about earlier. And then I also filled --
Q Okay. That form that you are speaking of,
is that the form that I just handed to you?
A Yes, sir.
Q Would you describe that form?
A At the top it is Pinnacle Health System at
Harrisburg Hospital, a Certification of Request for Testing
to Determine Presence of Alcohol and/or Controlled
Substance under Pennsylvania Motor Vehicle Code. Note all
applicable sections of this form must be completely filled
in.
Q And when you arrived at the hospital, did
you fill this form out?
correct?
A
Yes, sir.
Was it prior to seeing Mr. Vathis?
Yes, sir. I believe it was.
But you didn't complete it in full, is that
A No, sir. You have to -- I did not know at
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the time if he would take the test or not.
So this is a form the hospital wants you to
Q
fill out?
A
Yes, sir.
MR. KABUSK: Thank you. I move for the
admission of what's -- may I approach the witness, Your
Honor?
THE COURT:
MR. KABUSK:
Certainly.
May I have this marked as
Commonwealth's Exhibit No. 3?
(Whereupon, Commonwealth's Exhibit No. 3
was marked for identification.)
MR. KABUSK: I move for the admission of
Commonwealth's Exhibit No. 3.
MR. GROGAN: No objection, Your Honor.
BY MR. KABUSK:
Q Then after you filled that form out, what
did you do?
A I went to where he was at.
consent warning out. I filled what I could of that out.
And I don't remember why, but I did have to wait for a few
minutes for something. I don't know if they were doing
something or taking a test or something, but after a few
minutes I did get to speak with Mr. Vathis. In the time
that I was waiting I had asked for one of the hospital
I got my implied
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Q
referred to?
A
Q
security staff to come to where I was at.
When I got a chance to speak with Mr.
Vathis, I did read the Implied Consent Law from this form.
MR. KABUSK: May I approach the witness,
Your Honor?
THE COURT: Yes.
BY MR. KABUSK:
Q I am going to show you what's marked as
Commonwealth's Exhibit No. 1. Would you identify that
form?
A This is the form that I filled out that day,
sir, a copy of it.
Is that the implied consent form you
Yes, sir, it is.
Now, after you filled this form out, what
did you do then?
A Whenever I had a chance to speak with Mr.
Vathis I read the four areas to Mr. Vathis, making sure
that the security personnel was watching me as a witness as
I did this.
Q Would you read aloud what you read to the
petitioner?
A Yes, sir. Please be advised you are now
under arrest for driving under the influence of alcohol or
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a controlled substance pursuant to Section 3731 of the
Vehicle Code. I am requesting that you submit to a
chemical test of blood. It is my duty as a police officer
to inform you that if you refuse to submit to the chemical
test your operating privileges will be suspended for a
period of one year.
Your Constitutional Rights you have as a
criminal defendant, commonly known as the Miranda Rights,
including the right to speak with a lawyer and the right to
remain silent, apply only in criminal prosecutions and do
not apply in chemical testing procedures under Pennsylvania
Implied Consent Law, which is a civil, not a criminal
proceeding.
You have no right to speak to a lawyer or
anyone else before taking the chemical test requested by
the police officer. Nor do you have the right to remain
silent when asked by the police officer to submit to a
chemical test unless you agree to submit to the test
requested by the police officer, your conduct will be
deemed a refusal and your operating privileges will be
suspended for one year. Your refusal to submit to chemical
testing under the Implied Consent Law may be introduced
into evidence in a criminal prosecution for driving while
under the influence of alcohol or a controlled substance.
Q You stated you read that word for word?
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form.
A Yes, sir, I did. I read it right from the
Q And then what happened?
A I got no response from Mr. Vathis. Then I
asked him three times to respond if he understood. In
fact, I made a point of holding my fingers up. I looked at
the security guy so I got his attention. And I asked him
once, then I asked him twice, and then a third time.
Q What did you specifically ask him, do you
recall?
A I can't remember word for word, but it was
basically do you understand what I have spoke to you, are
you going to agree to take the test. And if you do not
make any comment, it is going to be considered a refusal.
Q And you did that three times?
A Three times, yes, sir.
Q And what was Mr. Vathis doing while you were
reading and then requesting?
A He was laying on the table, on the gurney,
on his back. He had his arm draped over his eyes. And he
was sobbing and crying.
Q Did you notice any obvious injuries?
A No, sir. I did not.
Q Did he inform you of any physical or medical
conditions at that time?
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Q
three times?
A
A No, sir. He did not.
Q Did he exhibit any symptoms that would
indicate the presence of a physical or medical condition?
A Not that I noticed, sir.
And then what happened after you asked him
I got information like the security guard's
name and address from my report and made sure I had all my
paperwork. And then I believe I left the hospital, sir.
Q So you considered his actions a refusal?
A Yes, sir.
Q And, once again, what were his actions to
you that you considered it to be a refusal?
A When I was reading it, and then the point
where I asked him three times to respond, he laid on the
gurney on his back with his arm draped over his eyes crying
and sobbing, not responding other than that.
Q Were you close enough that he could hear
you?
MR. GROGAN: Objection, Your Honor. It
calls for speculation on what this officer thought Mr.
Vathis heard.
THE COURT: Well, we will not receive it for
I am going to receive that as a lay opinion
And I think a lay
that purpose.
that he was close enough to be heard.
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person can express an opinion about that.
BY MR. KABUSK:
Q
A
Approximately how close were you to him?
I was standing less than two feet from him,
sir, right beside him.
MR. KABUSK: I move for the admission of
Commonwealth's Exhibit No. 1, 2 and 3 if I haven't done so
already.
THE COURT:
MR. GROGAN:
objection, Your Honor.
THE COURT:
MR. KABUSK:
BY MR. GROGAN:
Q
I think you have.
Yes, I think so.
I have no
Okay.
I have no further questions.
CROSS EXAMINATION
Officer Sollenberger, just to back up to the
scene of the accident. When you arrived Mr. Vathis was
stuck in his car, is that correct?
A That's correct, sir.
Q And you did not interview Mr. Vathis at that
point?
A No, sir.
Q It is my understanding from the testimony
here today and from Mr. Vathis' recollection -- or from the
testimony here today, that he was stuck in the car, is that
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correct?
A Yes, sir.
Q And the EMS people were trying to attend to
him, is that correct?
A Yes, sir.
Q And when I say EMS, I mean the emergency
personnel that drive the ambulance to the scene of the
accident?
A
Q
Yes, sir.
You also indicated from testimony here today
that the fire department was there?
A Yes, sir.
Q And the fire department was actually trying
to somehow open up the car to get him out of the vehicle?
A Yes, sir.
Q And so when you were there, you had not
actually interacted with Mr. Vathis at all?
A That's correct, sir.
Q And the only interaction that you had with
Mr. Vathis was at the hospital?
A Yes, sir.
Q I am talking about March 9th. I realize
there may have been subsequent involvement.
A Yes, sir.
Q
After Mr. Vathis was taken to the hospital
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you went to speak with him, is that correct?
A Yes, sir.
Q But you had also spoken with I guess the
emergency personnel that treated him at the scene of the
accident, is that right?
A I don't believe I spoke with them. I spoke
with witnesses and other people at the scene, other people
that were involved in the accident.
Q I am looking at the search warrant that you
filed to get his blood test.
search warrant?
A
Q
desk.
Do you have a copy of your
I have it, but it is...
I realize it is in all the paperwork on your
Why don't you just look down towards the
bottom two paragraphs when you relate to people you spoke
to.
Yes, sir.
It talks about the fact that you had
interviewed the EMT personnel, is that correct?
A I believe it was. I talked to the emergency
room personnel. And they related that it was the same
thing, that the EMT's and the ambulance people told them,
sort of secondhand.
Q Now, Mr. Vathis was not responsive to any
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questions, is that correct?
A That's what they told me, yes, sir.
Q And that he was babbling and crying when
they were trying to tend to his needs?
A Yes, sir.
Q And you also confirmed that with the
emergency room personnel, that when they were trying to
treat him he was unresponsive to any questions by the
emergency room personnel?
A He would not answer questions, yes, sir.
Q And that even from your testimony he was
laying there crying with an arm over his eyes?
A That's correct, sir.
Q Did you hear him ask to be let alone to die
or any suicide statements?
A I did not hear that, sir, no, sir.
Q Did they tell you that he was asking to die
and to commit suicide?
A I found that out later, I believe through
reading the paperwork I got from the search warrant, sir,
yes, sir.
Q That he wanted to die and was crying to be
allowed to commit suicide?
A That he wanted to die.
Q Suicide was probably the wrong term.
Now,
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when you interviewed Mr. Vathis, he did not even
acknowledge you were there, isn't that true?
A That's correct, yes.
Q He basically kept his eyes covered and
crying, is that your testimony?
A That is my testimony, sir.
Q Did he ever acknowledge that you were there?
A No, sir.
Q Did he ever even look at you and make either
eye contact or some type of contact that he saw you
standing there two feet from him?
A No, sir.
Q Did he ever respond to any questions from
anybody in your presence on March 9th, 2002?
A No, sir.
Q Other than just crying there and sobbing,
did he ever speak to anybody?
Not that I heard, no, sir.
You were asked on direct if he told you of
But he never told you of anything, isn't
A
Q
any injuries.
that correct?
A
Q
That's correct, sir.
And other than just crying there, he just
laid there, is that true?
A Yes, sir.
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evening?
Q Did you speak with his father later that
A
At the emergency room, sir.
I am talking about at the --
At the hospital.
At Harrisburg Hospital.
Yes, sir, I did.
And did you relay to the fact that he was
just incoherent and babbling while you were interviewing
him?
A
Q
I don't remember that, sir.
Now, as a result of your investigation you
actually obtained a search warrant, isn't that correct?
That's correct, sir.
And you actually received his blood alcohol
A
test results?
A
Q
A
questions.
Yes, sir.
And from that you filed the DUI charges?
Yes, sir.
MR. GROGAN: Thank you. I have no further
BY MR. KABUSK:
Q
REDIRECT EXAMINATION
Yes, Officer, you were asked if you obtained
a search warrant, and then you were asked if you received
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the results.
A
Q
A
Did you indeed receive the results?
Yes, sir, I did.
And what were those results?
I believe they were 0.19 percent blood
alcohol content, sir.
MR. KABUSK:
Your Honor?
THE COURT: Yes.
May I approach the witness,
BY MR. KABUSK:
Q
hospital?
A Yes, sir.
Is this a copy of what you received from the
Because I remember I asked -- I
told them I needed to know who performed the test and who
the, if I am pronouncing it correctly, phlebotomist was.
And where on there does it indicate what the
Q
result is?
A
Q
Alcohol 0.19.
And then you were asked if you followed up
on paperwork from the hospital in regard to whether the
petitioner was coherent, is that correct?
A I am sorry. I am not sure I understand.
Q I believe there was a question that you were
asked regarding if the paperwork from the hospital
indicated whether the petitioner was essentially
nonresponsive. I believe that was a question. And I would
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like to follow-up on that. Additionally in that paperwork,
did that paperwork indicate whether the petitioner was
intoxicated?
A
Q
The search warrant paperwork, sir?
Whatever paperwork you followed up on?
MR. GROGAN: If it helps, we will stipulate
that his BAC was .19, which is above the legal limit.
BY MR. KABUSK:
Q What I am saying is did the doctors -- do
you have any indication that the doctors indicated that he
was intoxicated and not cooperative?
A At the hospital that night, no, sir, I don't
think I ever actually spoke with doctors. I know I spoke
with a nurse.
Q Okay. And what did the nurse indicate to
you, anything in that regard?
A Just that he has been nonresponsive.
don't remember her saying anything about alcohol or
anything else.
MR. KABUSK:
MR. GROGAN:
THE COURT:
No further questions.
No recross.
Thank you.
(Whereupon, Commonwealth's Exhibit No. 4
was marked for identification.)
MR. KABUSK: I would move for the admission
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of Commonwealth's Exhibit No. 4.
MR. GROGAN: No. 4 I think is the test
result from the hospital showing a BAC of .19.
MR. KABUSK: That's correct. And that is
the Department's case. And the Department reserves the
right to recall its witness.
THE COURT: Call Randy Vathis.
Whereupon, RANDALL VATHIS, having been
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q Randy, for the record, why don't you go
ahead and state your name and address?
A Randall Vathis. 1413 Silver Creek Drive,
Mechanicsburg, Pennsylvania.
Q
Is that in Hampden Township?
Yes, sir, it is.
How long have you lived there?
Approximately six years.
Is that your home?
Yes, it is.
And who do you live with?
I live alone.
Just for the record, what do you do for a
living?
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A
I am retired.
And who are you retired from?
The Commonwealth of Pennsylvania.
And how long have you been retired from the
Commonwealth of Pennsylvania?
A Since February.
Q Now, last March of 2002 were you living at
your current residence, or were you living somewhere else?
A I was living somewhere else.
Q And where were you living at?
A I was living at my parents' home.
Q What address is that?
A 5110 Inverness Drive.
Q And why were you residing at your parents'
residence last March of 2002?
A A few weeks before that my home had incurred
a fire.
Q And that home that had the fire is located
in Hampden Township?
A Yes.
Q Did fire result in an earlier DUI charge
being filed against you?
A Yes, it did.
Q And was that somewhat of a notorious fire
where there was a lot of police involvement?
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that day?
bottle.
A
Yes, there was.
Now, on March 9th of 2002 were you drinking
A Yes, I was.
Q And you heard testimony about this gin
What do you remember drinking on March 9th, 2002?
A I remember drinking some gin that day.
Q And what caused you to be out on the road on
a Saturday afternoon, March 9th?
A I was going to get dinner for my parents and
myself.
Q
afternoon?
A
Okay. And where were you planning to go?
To a fast food restaurant in Camp Hill.
And what do you remember of that Saturday
I remember walking out of the house and
getting in my car and backing out of the driveway. And
that's all I remember.
Q Okay. Do you know what the distance from
your parents' driveway to where the accident occurred how
many miles that is or what the distance is?
A
three miles?
A
Approximately three miles.
Do you have any recollection of driving that
No, I don't.
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Q After you got in your car -- what kind of
vehicle were you driving that day?
A It was a 1991 Oldsmobile I believe.
Q And after you got in your car what's your
next recollection from March 9th, from this accident?
Waking up in the hospital.
And what do you remember about waking up in
A
the hospital?
A
gurney.
Q
I remember that I was strapped down to a
When you say you were strapped down, how
were you strapped down?
A My ankles and my wrists were tethered down
with straps. And I had a brace, which ran from the back of
my neck up around the back of my head.
Did you suffer injuries as a result of this
Q
accident?
A
Q
Yes, I did.
What kind of injuries did you sustain as a
result of the accident?
A My head hit the windshield.
Q Go ahead.
A I was thrown forward. My head hit the
windshield -- my face. My chest had a severe impact with
the steering wheel. And through that whole process I also
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chipped my tooth.
Q For the record, which tooth did you chip?
A My front.
Q Front center tooth?
A Front center tooth.
Q Now, you indicated you hit your head. Do
you have any recollection of hitting your head?
A No, sir.
Q Did you have any injuries or bruises
sustained afterwards?
A Yes, I did.
MR. KABUSK: Your Honor, I object to his
testimony. He testified as to what his injuries were.
then he is testifying he doesn't have any recollection of
those injuries.
THE COURT:
on his sense of himself after he woke up?
MR. GROGAN: I can establish that.
BY MR. GROGAN:
Q
yourself?
A Yes.
Q Did you have those injuries before you got
in your vehicle on March 9th?
A No, I didn't.
And
I am assuming this is all based
After you woke up, did you see injuries on
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Q In addition to the chipped tooth, what type
of injuries did you have on your chest?
A My chest hurt very severely.
Q Did you have the impression of the steering
wheel on your chest?
A Yes, sir.
Q Did you have any other head injuries?
A When I struck the windshield, it must have
been pretty severe, because I had black and blue marks
throughout my entire face and especially around my nose and
under my eyes.
Q
October 9th, or did they come up later on?
A Probably a day later.
Q Now, as a result of the accident were you
asked to be admitted to the hospital?
A Yes.
Q Was Crisis Intervention called?
A Yes.
Q Did they want you to submit or admit
yourself to the hospital for observations?
A
Were those black and blue marks evidenced on
Yes.
Did you agree to do that?
No.
Were you eventually discharged from the
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hospital?
A
Yes.
And who took you home?
My father.
And after that incident did you have to be
A
face?
A
Q
DUI arrest?
A
Q
processed and have your photograph taken?
Yes.
Did the County take your picture?
Yes.
Did the picture show these injuries on your
Yes.
Was that part of your processing for your
Yes.
Now, you indicated that you had a prior DUI
about two weeks before this incident. Were you going
through other legal problems?
MR. KABUSK: Your Honor, I object to this
regarding the relevance of this refusal.
MR. GROGAN: Well, it is to his knowledge of
what a refusal would have caused him. I think the issue is
whether or not --
THE COURT: That he had learned and he
realized the ramifications of the refusal. I will permit
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it.
BY MR. GROGAI~:
Q When you were arrested two weeks before that
for a DUI, did you submit to an analysis of your breath?
A I submitted to a blood test.
Q Excuse me, to a blood test. Were you
advised of what would happen if you had refused to submit
to a blood test two weeks before that?
A Yes. When I was at the Booking Center the
employee asked me if I would take a blood test. And I
asked him what the consequences would be if I didn't. And
he distinctly told me that I would lose my license for one
year because of that alone. And that if I was convicted of
the DUI, I would lose my license for an additional year.
Q And this was two weeks before this incident?
A That is correct.
Q And did you comply with that first request
back in February of 2002?
A Yes, I did.
Q Now, on March 9th, 2002, do you have any
recollection of meeting Officer Sollenberger?
A No, sir. I have never seen Mr. Sollenberger
until today.
Q In the hospital do you have any recollection
of him interviewing you?
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A No, sir.
Q Do you have any recollection of him telling
you that he wanted you to submit to a blood test?
A No.
Q Do you have any recollection -- the first
time you remember seeing this officer is today?
A That is correct.
Q In the hospital were you aware of what was
going on while you were being treated by the doctor in the
emergency room?
A No, sir.
Q And your first recollection in the hospital
is sometime later when you wake up?
A Yes.
Q And just for the record, you described being
secured to the hospital bed?
A Yes.
MR. GROGAN:
Thank you.
I have no other questions.
CROSS-EXAMINATION
BY MR. KABUSK:
Q Mr. Vathis, you admit that you were drinking
prior to the incident?
A Yes.
Q And you admit that you have no recollection
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of the incident?
A That is correct.
Q And were you voluntarily consuming alcohol
prior to the incident?
A Yes.
Q And would you agree that the consumption of
alcohol could be a factor in you not recollecting the
events?
A
Q
of the events after you left your driveway, is that
correct?
A
Q
is it?
I don't know.
But you stated that you have no recollection
That is correct.
And that's not where the accident occurred,
A That is correct.
Q So you drove, and then you were involved in
an accident, correct?
A That is correct.
Q And how do you know you were involved in an
accident?
A When I woke up in the hospital I overheard
somebody say that I had been in an accident.
Q And then you were discharged from the
hospital, is that correct?
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A Yes, sir.
Q Do you know why you were secured to the
gurney while you were in the hospital?
A They had taken tests, x-rays, I believe an
EKG. I don't remember all the terminology. But I was told
they did a battery of tests on me. And I know they did
because I got the bill in the mail for it.
Were you cooperative throughout the hospital
Q
experience?
A
I woke up.
before that.
Q
test?
A
BY MR. GROGAN:
Q
blood test?
A
Q
I don't recall the hospital experience until
And I believe the tests had already been done
Did you ever submit to the requested blood
No.
MR. KABUSK: No further questions.
REDIRECT EXAMINATION
Do you remember being asked to submit to a
No.
Do you have any recollection of any
interview by any person on March 9th regarding your DUI
arrest?
A No.
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remember?
accident.
MR. GROGAN: No other questions.
THE COURT: When did you wake up, do you
THE WITNESS: It was several hours after the
I don't remember the exact time.
THE COURT: Thank you.
MR. GROGAN: Call Mr. Paul Vathis.
Whereupon, PAUL VATHIS, having been duly
sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q Mr. Vathis, just for the record, why don't
you state your name and where you live?
A My name is Paul Vathis, V-a-t-h-i-s. I live
at 5101 Inverness Drive, Mechanicsburg.
Mr. Vathis, what is your relationship to
Q
Randy Vathis?
A
Q
He is my son.
Mr. Vathis, last March of 2002 was Randy
living at your house?
A Yes, he was.
Q And were you here during his testimony this
morning?
A
Yes.
Now, on March 9th did he go out to buy
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dinner?
A Yes, he did.
Q And did you eventually get a phone call
about Randy?
A I received a phone call from the hospital
about Randy. They first asked me if I was Mr. Vathis, and
do I have a son named Randall. And I said yes. He says,
well, we have your son here in the emergency room of the
hospital. Come on down.
Q When you arrived at the hospital, was Randy
being treated by emergency room personnel?
A Yes. Yes. He was being completely -- it
was a doctor and several nurses. He was strapped on the
gurney. Believe me, when you see your son laying on a
gurney and strapped down and very incoherent yelling I want
to die --
Q
you see that?
there?
A
Q
So when you say he was strapped down, did
Yes.
How was his demeanor, how was he acting
A He didn't recognize me. He did not
recognize me at all, and completely irrational, and just
yelling I want to die. I want to die. Get me out of here.
I want to die.
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Q And was the police officer there?
A I met the police officer afterwards, Mr.
Sollenberger, afterwards.
Q And did you have an opportunity to talk to
the police officer?
A Yeah. He was very kind by the way. I
thanked him for helping my son and so forth. And he gave
me his card. He says, he doesn't look too good. I said,
no, he doesn't. And he said, well, here is my card. And
if you have any other questions about the accident, please
call me. He was very helpful, this police officer was, Mr.
Sollenberger.
Q When you arrived at the hospital, was
Randy -- you said he did not recognize you, did not
recognize you. How do you know he didn't recognize you?
Did you try to talk to him?
A Yes. I tried to talk to him. I put my
hands on him to quiet him down. The doctor told me that's
not him. He said that's not him speaking. We gave him an
injection --
MR. KABUSK: Objection to the hearsay.
MR. GROGAN: Well, it is not to the truth of
the matter asserted. It is just the impact of the father.
THE WITNESS: He did not recognize me at
all, even while trying to talk to him he didn't.
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BY MR. GROGAN:
Q
A
Q
A Yes, I did.
and tried to speak to him.
Did you try to speak to your son?
Beg your pardon?
Did you try to speak to Randy?
I leaned over and held his hand
Q Did he respond to any of your questions or
any of your statements?
A None whatever.
Q You described some irrational statements.
Just for the record, why don't you go ahead and repeat
those statements?
even talk.
A Yes. He was very irrational. He wouldn't
He didn't recognize me.
Q
Was he screaming or crying?
Yes.
Did you see anybody try to speak to Randy on
March 9th at the hospital?
A Just the doctor and the nurse trying to
quiet him down.
Q
instructions?
A
Q
instructions?
Did he respond to any of the doctor
No.
Did he respond to any of the nurses'
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A
questions.
BY MR. KABUSK:
Q
NO.
MR. GROGAN:
Thank you.
I have no other
CROSS-EXAMINATION
Mr. Vathis, prior to the incident did you
see your son drinking alcohol?
A No. I did not. I didn't even know he drank
alcohol while he was in our house. I don't allow that.
Q You don't allow alcohol in your house?
A No. Maybe a beer. That's all.
beer, one or two beers.
MR. KABUSK:
THE COURT:
of him when he went out to get this fast food?
THE WITNESS: He seemed fairly normal, Your
Honor. He didn't seem drunk at all. I don't know...
A light
Very rare.
No further questions.
So what were your observations
THE COURT: What was his speech like?
THE WITNESS: Very clear, like you are
Thank you.
Petitioner Randy Vathis rests,
talking now, we are talking, very rational.
THE COURT: And he was walking fine?
THE WITNESS: Yes.
THE COURT: All right.
MR. GROGAN:
Your Honor.
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THE COURT: Okay. Anything else?
MR. KABUSK: Nothing further.
(Whereupon, Mr. Grogan closed on
behalf of the Defendant.)
(Whereupon, Mr. Kabusk closed on
behalf of the Commonwealth.)
(End of proceedings)
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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.
Barbara E. Graham
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
th ~d~%%{ JDistrict
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