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...,Ix J. D.Gulllo
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A/ltJm'Y,t/I.LIIMI
lulle 1509, Uwytll Sulldln,
4" Forba Avenue
Pllltburlb, Pcnlllylvenlt 15219
(41:2) 241.1972
Fax (412) 232.3740
June 9, 1994
Clerk of Courts
Cumberland County courthouse
carlisle, PA 1701J
RE: Commonwealth of Pennsylvania vs. David P. Molinaro
No. 94-0665
Dear Sir or Madam:
please find enclosed for filing the originnl Brief of David
Peter Molinaro. I nm also enclosing a oOPY for Judge J. Wesley
oler, Jr. which I respeotfully request that you have delivered to
his Chambers.
Very tr~lY. ou s,
.....---7/, ,~ J-./
~~( ~,
Felix J. DeGuilio
FJDldjt
Enc.
oc: Honorable J. Wesley oler, Jr.
Matthew x. Haeokler, ~Bquire (w/enc.)
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103
COMMIINW':.unlllt' pt:NNsnVANJA
I)t;PAIUM.:NT nt'TMANIiPORTUJON
Offioe of Chief Counsel
Tran.portation and Safety BUildinq
Harrisburqi Pennsylvania 17120
Ju y 11, 1994
IN ...,u "'1'1" 10
Honorabla J. We.ley Oler, Jr.
1 Courthou.e Square
carli.le, Pennsylvania 17013
ReI David Peter Molinaro No. 94-0665
Dear Judqe Olerl
A hearing in the above referenced matter was held on May 9,
1994. At that hearing, the Department pre.ented evidenoe throuqh
the testimony of Officer. Kurtz and Beauduy that Mr. Molinaro had
been arr..t.d for driving under the influence, reque.ted to submit
to a chemical test, refused the chemical te.t and was warned that
hi. operadnq privUeqes would be suapended it h. refuaed the t.lat.
The motori.t pres.nted no evidenoe. At the conclueion of the
hearinq, a briefinq schedule wa. eatablished. Plea.e aocept thia
latter .. the Departments brilf in thia matter. This brief is
beinq filed late aa a reault of the fire in the Tranaportation and
Safety Buildinq. I respectfully apoloqiz. for the delay and
appreoiate the Court a patients.
In hi. brief, Molinaro raises the following iaauesl
1. Th. Department failed to prove the existence of a
con.titutional sobriety cheok point.
2. The Department fai~ed to prove that Molinaro
tailed to stop for a .obriety check point.
I
I I
I
I
I
3. Mr. Molinaro did not knowingly and conaoioualy refuaed to
.ubmit to ohemioal te.tinq.
The law clearly establiahe. that the Department'a burden ia to
t,
I
Ji......'.......--..------
...._ !!'Iklng II Hippen
- ~.... ---..---..---.---......-..---..
prove that the motorist wu arrested for drivinq under the
influence of alcohol or a oontrolled substanoe, he was requeeted to
eUbmit to ohemical t.sting, he refuled to submit to chemioal
testinq, and he was warned that hie oplrating privileges would be
euep~nded if he refused the chemical test. Department of
Tra~.por~a~io~t Bur.au ot Traffio sat.ty v. 0'Conn.11, 521 Pat 242,
5115 A.2d 873 (1989). The burden then shift. to the motoriet to
prove thet he wa. not capable of making a knowing and coneoious
refUsal. !d.
Motoriet's arqument, that the Department failed to prove the
exietence of the oonetitutional eobriety check point, are not
relevant to thie inqUiry and exceede the scope of the inqUiry of
thie proceeding. Thill iesue Wall addressed by the Penneylvania
Supreme Court in Department of TransDortation v. Wyeocki, 517 Pa.
175, 535 A.2d 77 (1987). In Wysocki, the motorillt appealed a
euepension whioh had reeulted from an alleged unconstitutional
road block. The Supreme Court upheld the suspension noting that
the conetitutionality of the road block had no bearing on the
resolution of a suspension based on a refusal to take a chemical
test. The proper in~~iry is whether there was an arreet and not
into the legality of the arrest. The Supreme Court held that even
if the initial stop wa. illegal, that would not neoesearily prevent
a euepeneion of a license where there Was a retueal to SUbmit to a
ohemical teet. The request to submit to a chemical teet would only
be improper if the offioer's requeet was not eupported by a
reaeonable belief that the person wae drivinq under the influence
of alcohol. !d. See aleo Glaee v. Department of Transportation.
Bureau ot Traffic Satety, 460 Pa. 362, 333 A,2d 768 (1975).
There can be no diepute that the of tic ere had reuonable
qrounde to believe that Mr. Molinaro Was driving under the
intluenoe ot aloohol. The reasonable grounde test is not very
demandinq. The te.t i. whether a reasonable per.on in the poeition
of the offioer, VieWing the facte and circumetanc:ee ae they
appeared at trial, could have conoluded that the motorist was in
aotual phy.ioal control of the movement of the v.hicle while under
the influence of aloohol. Department of Transportation, B~reau~
Driver Lioensinq y. Terreri, 114 Pa. oommonwlalth ct. 208, ~38 A.2d
639 (1988). The existence of other explanations doe. not negate
the reasonablene.s of the offioer's belief. Keane v. DeDartment o(
Traneportation, 127 Pa. Commonwealth ct. 220, ~61 A.2d 3~9 (1989).
Moreover, the arre.tinq officer's rea.onable ground. will not be
rendered void even if it is disoovered at a later time that hi.
belief wa. inoorreot. ~. The Officer'. belief mu.t merely be
objectively reasonable in light of the surrounding circumstance..
~.
In this case, the officer reaeivsd a report that a car
matchinq Mr. Molinaro's car had run a DUI check point. After the
vehicle wa. stopped, the officers ob.erved phy.ioal manifestations
indicating that the motori.t was under th", influenoe. Theee
physical manife.tations inoluded glassy eyes, an odor of alcohol,
and the motori.t staggering when he walked. Additionally, the
motorist refused to perform field sobriety test.. Under the
circumstances, it was more than reasonable that the officers
believe that Mr. Molinaro was driving under the influence of
alcohol.
Molinaro made a hearsay objection at the hearing and now
argues that the OBpartment faiied to prove that Mr. Molinaro failed
to .top at the sobriety check point. However, the Department does
not have the burden to prove that Mr. Molinaro did in fact fail to
stop at the SObriety check point. This evidence was offered as
evidence of the arre.ting officer's state of mind and to show the
rea.onablenes. of his actions. It is well .ettled law that an
offioer may testify to an out of oourt statement for the purpo.e of
proving the stat of mind of the offioer and to explain hi. conduct
in respon.e to the statement. patter.on v. commonwealth, 13B Pa.
Commonwealth ct. 292, IlB7 A.2d B97 (1991). Clearly this is
evidenoe that the offioer acted reasonable in pursuing Mr.
Molinaro'. vehicle and was a circumstanoe which the officer could
oonaid.r when he reaaonably ooncluded that Mr. Molinaro wa. drivinq
under the influenoe.
Nor can it be disputed that Mr. Molinaro wa. arrested. The
standard for an arre.t .et forth in g,partment ot TranlPortation.
Bureau ot Qriver Licen.inq v. McGlynn, 147 Pa. Commonwealth ct.
4114, 611 A.2d 770 (1992) and Department ot Tranlportation/ Burea~
ot Driver Li~eneinq v. Jonee, 120 fa. Commonwealth ct. 88, 547 A.2d
877 (1988). The otfioer. mu.t merely .how that there wa. custody
and control over the motori.t. Molinaro was hand cuffed, plaoed in
the back of the pOlice car, and transported baok to the road blook
site. It is clear that the motorist waa not free to leave. Such
aotion. are auetody and control sufficient to eetablish an arreet.
Furthermore, the motori.t wall expressly told that he was under
arreet after he arrived baok at the road block site.
The testimony of the Officera clearly eatabli.hed that the Mr.
Molinaro was repeatedly asked to submit to a chemical test. He wae
warned that his operating privilege. would be euspended if he
refu..d the te.t on numerous occalions. The officerl explained
that hie right to speak to an attorney and to remain silent did not
apply to the chemical testing procedure and that he had no right to
speak to a lawyer or anyone else prior to taking the ohemical teet.
The officers went to great paine to make aure that Mr. Molinaro
under.tood what wa. required of him and what would happen if he
refua.d the test. In apite of the officer'e laudable efforte to
explain the implied coneent law and to get Mr. Molinaro to take the
teet, Mr. Molinaro repeatedly refuled to take the test.
Inaemuoh as the Department carried its burden of prOOf, the
burden ehifted to the Motoriet to prove that he wa. not capable of
makinq a knowing and conaciou. refulal. ~'connell. In thia cas.,
coun..l for the motoriat haa suggeeted that Mr. Molinaro may have
b.en confueed beoause more than one pereon explained that Mr.
Molinaro would lose hie license if he did not take the test and
that h. had no right to epeak to an attorney ~r anyone else before
takinq the test. How.v.r, th.r. was no testimony that the motorist
was contus.d. In faot, both oftic.rs testifi.d that Mr. Molinaro
was not oonfue.d. Motorist additionally tail.d to present any
.vid.noe that havinq mon than on. penon explain the implied
cons.nt la"l would make him incapable of making a knowing and
oonscious refusal. Motorist provid.d no .xpert t.stimony that h.
could not und.r.tand the warnings. Nor was th.r. any testimony
that the warninqs qiv.n were confliotinq ,or could not b.
understood. Mor.ov.r, .v.n it the Motorist was contus.d, th.r. was
no .vid.nc. pr.s.nhd that alcohol did not contribute to his
cantu.ion. au O.part.m.nt at Tran.port.at.ion~ Buroau of Oriv.r
Licansinq v. Monsay, 142 Pa. Commonwealth ct. 163, 1196 A.2d 1269
(1991). Accordingly, the motorist failed to meet his burden.
Th. testimony clearly .atablished that the Department has met
ita burd.n of proof in this 0.... Mr. Molinaro ha,s fa.iled to
..tabli.h that he wa. incapable of making a knowinq and oonsoiouB
r.fusal. Accordingly, the D.partment re.pectfully submit. that the
appeal should b. denied.
Respectfully submitted,
7P~y~
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Matth.w X. Ha.ckl.r, Esquir.
Assistant Couns.l
Department of Tran.portation
001 '.li~ J. D.Ouilio, I.quire
suit. 11109, Lawy.r Building, 428 Forbes Avenue,
Pittsbur9h, PA 111219
, I
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103
COMMlINWMI,H1 (It' Pt:NN!i\'I,V ANIA
Dt:PA'HMt:NI lit' IRANSPOIUUION
ottice ot Chief Coun.el
Tran.portation and Safety Building
Harrisburg, Pennsylvania 17120
July 11, 1994
JUL 11 199.
Jf'-
. .
lls.a 'Hel
I~ "I'IY .."." TO
Honorable J. Wesley Oler, Jr.
1 courthou.e Square
Carli.le, penn.ylvania 17013
Rei David Peter Molinaro No. 94-0665
Dear Judqe Olerl
A hearinq in the above referenced matter was held on May 9,
1994. At that hearing, the Department presented evidence throuqh
the te.timony of Officer. Kurtz and Beauduy that Mr. Molinaro had
heen arrested for drivinq under the influence, requested to .ubmit
to a chemioal test, refused the ohemioal te.t and wa. warned that
his operatinq privileges would be .u.pended if he refu.ed the te.t.
The motorist preeented no evidenoe. At the conclullion of the
hearinq, a briefing schedule was established. Please aooept this
letter as the Department. brief in thi. matter. This brief ie
being filed late a. a result of the fire in the Transportation and
Safety Buildinq. I respectfully apologize for the delay and
appreciate the Court. patient..
In hi. brief, Molinaro raise. the following i..ue'l
1. The Department failed to prove the existeno. of a
con.titutional .obriety check point.
2. The Department failed to prove that Molinaro
failed to stop for a sobriety check point.
3. Mr. Molinaro did not knowinqly and con.ciou.ly refu.ed to
lubmit to chemioal te.tinq.
The law clearly ..tablishe. that the Department's burden i. to
:ft--~'~k~"g~!_~~IIP'~-:=-----
...
prove th.t the motori.t w.. arr..t.d for drivinq und.r thl
influ.no. of alcohol or . controlled .Ub.tanoe, hi was r.qu.st.d to
,ubmit to ch.mic.l tI.Unq, h. refu..d t,o .ubmi t to ch.mical
te.tinq, and he w.. warn.d that hi. op.ratinq privillq.. would b.
.u.p.nd.d if h. refu..d the ohemical t..t, D,Dartm.nt of
Tran~port.tton. ~Bur.au of Traffic sat.ty v. O'Cann.ll, e21 Pa. 242,
555 A.2d 873 (1989). Th. burden th.n .hift. to the motori.t to
prove that he wa. not cap.bl. of makinq a knowinq and con.oiou.
refu.al. 1Jl.
Motori.t'. arqument, that the Department failed to prove the
.xiateno. of thl con.titutional .obri.ty chick point, ar. not
r.lev.nt to thi. inquiry and .xoe.ds the scope ot. the inquiry of
thia proo.edinq. Thia ia.ue w.. addre...d by the P.nn.ylvania
Supr.m. Court in Department of Tran.~ortation v. Wy,ocki, 517 Pa.
1711, 1135 A.2d 77 (1987). In Wy.ooki, the motoriat app.aled a
.u.p.nlion which had r..ulted from an alleged unoon.UtuUonal
road block. Th. Supreme Court upheld the .u.p.n.ion noting that
the con.titutionality of the road block had no bearing on the
r..olution of a .U.pension bas.d on a rlfusal to take a ohemical
teat. Th. proplr inquiry i. wheth.r there was an arr..t and not
into the l.gality of the arrl.t. Th. Supr.me Court held that ev.n
if the initi.l .top w.. illeg.l, that would not n.oe...rily pr.v.nt
· .u.p.n.ion of a liu.n.. wh.re th.re wa. a r.fu.al to ,ubmit to a
oh.mioal t..t. Th. r.que.t to .ubmit to . chemical t..t would only
be improp.r it the offioer'. reque.t waa not supportld by a
r...on.bl. b.lief that the p.rson wa. driving under the influ.nc.
of .loohol. 1Jl. S.. al.o Gla.. v, D.Dartm.nt of Tran'Dortat~on.
Bur.au of Traftio saf.ty, 460 Pa. 362, 333 A.2d 768 (1975).
Th.re oan b. no diaputl that the offic.rs h.d r...onabh
qround. to beli.v. that Mr. Molinaro waa driving und.r the
influ.no. of alcohol. Th. r.a.onabl. groundl te.t i. not v.ry
d.manding. The t..t i. whlth.r . r.a.onable p.rlon in the poaition
of the offic.r, viawing thl teats and oircum.t.nc.s a. th.y
.pp.ar.d at trial, could have conolud.d that the motori.t wal in
aotual phy.ical control of tha movement of the vehicle while under
the influence of alochol. Dlpart~ant of Tr,napQrtation. Vureau of
Driver Lican.~y. Terrari, 114 Pa. oommonwealth ct. 208, 538 A.2d
6)9 (1988). The exi.tence of other expl~nation. does not neqate
the rea.onablene.. of the offioer'. beliet. Keane v. Department of
Transportation, 127 Pa. Commonwealth ct. 220, 561 A.2d )59 (1989).
Moreover, the arre.tinq officer's rea.o~able qround. will not be
rendered void even if it is di.covered at a later time that hi.
belief was inoorreot. ~. The officer'. b.lief mu.t merely be
objeotively rea.onable in liqht of the surrounding circumstance..
~.
In this cue, the officer received a l'eport that a car
matching Mr. Molinaro'. car had run a DUI check point. After the
vehicle wa. .topped, the officer. observed phy.ical manife.tation.
indioatinq that the motorist wu undar the intluence. The.e
phy.ical manifestation. included glas.y eye., an odor of atoohol,
and the motori.t staggering when he walked. Additionally, th$
motorht refu.lld to perform field sobriety te.t.. Under tha
circum.tance., it was more than rea.onable that the officer.
believe that Mr. Molinaro wu driving under the intluenoe of
alcohol.
Molinaro made a hearsay Objection at the hearing and now
argue. that the Dlpartment failed to prove that Mr. Molinaro failed
to .top at the sobriety check point. However, the Department doe.
not have the burden to prove that Mr. Molinaro did in fact fail to
stop at the ,obriety check point. This evidence wa. offered u
evidence of the arr~.ting officer's .tate of mind and to show the
r.aaonablene.. of hi. aotion.. It is well .ettled law that an
otfioer may t..tify to an out of court statement for the purpo.. of
proving the stat of mind of the officer and to explain hi. oonduct
in re.pon.e to the .tatement. patter.on v. commonwaalth, 138 Pa.
COll\lllonwealth ct. 292, 587 A.2d 897 (1991), Clearly thi. is
evidence that the officer acted rea.onable in pursuing Mr.
Molinaro'. vehicle and was a circum.tance which the Officer could
.
consider when he reasonably concluded that Mr. Molinaro was drivinq
under the intluence.
Nor can it be disputed that Mr. Molinaro was arrested. The
standard tor an au'est set forth in Department of Transportation.
Bureau of Driver Licen,inq v. McGlynn, 147 Pa. Commonwealth ct.
454, 611 A.2d 770 (1992) and DeDartment of Traneportation. Bureau
of Driver Licensi~a v. Jone" 120 Pa. Commonwealth ct. 88, 547 A.2d
877 (1988). The officers muet merely ahoW that there waa cuatody
and control over the motorist. Molinaro wa. hand cuffed, pleced in
the back of the pOlice car, and transported back to the road block
aite. It ia clear that the motorist was not free to leave. Such
aotions are custody and control aufficient to establiah an arrest.
Furthermore, the motorist was expressly told that he was under
arrest after he arrived back at the road block site.
The testimony of the Officers clearly establiahed that the Mr.
Molinaro waa repeatedly asked to submit to a chemical test. He was
warned that his operating privUegeu would be suspended if he
refusod the test on numerous occasions. The officers explained
that his right to speak to an attorney and to remain silent did not
apply to the ohemical testing procedure and that he had no right to
apeak to a lawyer or anyone else prior to taking the chemical test.
The officera went to great pains to make aure that Mr. Molinaro
understood what waa required of him and what would happen if he
refueed the teat. In spite of the officer'a laudable efforts to
explain the implied coneent law and to get Mr. Molinaro to take the
test, Mr. Molinaro repeatedly refused to take the test.
Inaamuch aa the Department carried its burden of proof, the
burden ehifted to the Motorist to prove that he waa not capable of
makin9 a knowing and conscioua refusal. O'Connell. In thia case,
Counsel for the motoriat has auggeated that Mr. Molinaro may have
been confuaed becauae more than one person explained that Mr.
Molinaro would loae his licenae if he did not take the teet and
that he had no right to apeak to an attorney or anyone else before
~
takinq the te.t. However, there was no te.timony that the motorist
wa. confused. In fact, both officer. te.tified that Mr. Molinaro
wa. not oQnfueed. Motorist additionally failed to pr..ent any
evidence that havinq more thai' one penon explain the implied
uon.ent law would make him incapable of making a knowin9 and
con.cioul refUlal. Motorist provided no expert testimony that he
could not understand the warningl. Nor wa. there any teltimony
that the warnin9. qiven were oonflictinq or oould not be
underetoed. Moreover, even if the Motori.t wae confused, there wa.
no evidence prelented that aloohol did not oontribute to hi.
oonfu.ion. 11.I Dal)artmant. of Tran.l)ortat.!on, Bur.au of Drivar
Licen.ing v. Monlay, 142 Pa. commonwealth ct. 163, 1196 A.2d 1269
(1991). Accordingly, the motorist failed to meet hi. burden.
The teetimony clearly e.tablished that the Department ha. met
it. burden of proof in thh case. Mr. Molinaro ha. failed to
e.tablish that he wa. incapable of makinq a knowing and con.ciau.
refu.al. Aocordingly, the Department respeotfully submit. that the
appeal shOUld be denied.
Re8peottully submitted,
~~y~
-
Mattnew X. Haeckler, I.quire
Assi.tant Counsel
Department of Transportation
COI
,.lix ~. DeOuilio, E.quire
Suit. 1509, Lawyer Building, 428 Forbes Avenue,
Pittsburqh, PA 111219
"
"
, '
Ii
COIOlOW.LATH or 'INNSYLVANIA, I IN THI COURT or COIOlON PLBS 0'
Pl.intiff/R..pond.nt I COMBI.LAND COUNTY, 'INNSYLVANIA
I
v. t 94-0665 CIVIL TIRN
I
DAVID PITI. MOLINARO, I PlTITION ON APPlAL PROM
D.fendant/Respond.nt I SUSPINSION ON OPlRATOR'S LICINSI
IN RII LICINSI SUSPINSION APPIAL
ORDI. Q' COURT
AND NOW, thi. 9th d.y of Nay, 1994, upon
con.id.r.tion of th. P.tition.r's App..l from Suspan.ion of
Oper.tor'. Lic.n.., and following. h..ring, the matter, .t the
r.que.t of the ,etition.r'. coun..l, i. tak.n under advi.em.nt.
At th. r.qu..t of P.titioner'. coun..l, th. .t.nogr.pher i.
directed to prep.re the notes of testi~ny in thi. c.... Th.
P.titioner'. brief .h.ll b. due within twenty day. of the filing
of the transcript, with the Commonwealth's bri.f b.ing due
fift.en d.y. th.reafter.
By the Court,
,-1 d{
/ JV W..ley 01
? /
Matth.w x. Ha.ckl.r, I.quir.
Coun..l for Pl.intiff/Respondent
P.lix J. DeGuilio, ..quire
Coun..l for D.f.ndant/p.tition.r
I.lr
',,1.\" I'll
,.IJI, ,r I..'t I.
I'll, ',II""
Jill I I
H
,"1'0'110
'I In
Ml ~/,' u?, 6 AVN
c~~
IN TH~ COURT OF COMMON PL~AS OF CUMB~RLAND COUNTY, PENNSVLVANI~
CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA,
Plaintiff I
Respondent,
No. 94-06611
Code I
Issue NOI
vs.
DAVID PET~R MOLINARO,
Defendantl
peti tioner.
TYPE OF PLEADINGI
Petitioner's Brief
Filed on behalf of Petitioner
David Peter Molinaro
Counsel of Record for
this Party:
Felix J. OeGuilio
PA 1.0. 110771
1&09 Lawyers Buildin9
Pittsburgh, PA 1&219
(412) 261-1972
,
I'
, ,
1'1
,
" " . -,.-
IN THE COURT OF COMMON PLEAs Of' CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL TERM
COMMONWEALTH OF PENNSYLVANIA,
Plaintiff/Respondent
v.
)
l
l
l
l
94-0665
DAVID PETER MOLINARO,
Defendant/petitioner
PETITIONER'S BRIEf
INTRODUCTION
By letter dated January 21, 1994, the Pennsylvania
Department of Transportation (DOT) informed David Peter Molinaro
(Molinaro) that his driving privileges were suspended for one
year effective February, 25, 1994, for assertedly refusing to
submit to chemical testing. Molinaro filed a timely appeal to
this Honorable Court and a bench trial wae conducted on May 9,
1994. At the close of DOT's case in chief Molinaro moved the
Court for a compulsory non-suit or for an order to sustain his
appeal from the DOT's order of suspension, The Court denied
Molinaro's motion. Molinaro rested and argued that DOT had
failed to prove the existence of a sobriety checkpoint for it to
demand that Molinaro submit to a chemical test and that DOT
failed to meet its burden of proof that Molinaro had voluntarily,
knowingly, and intentionallY refused to submit to chemical
testing.
1
f'AC'I'S
DOT produoed two witnesBeB, Officers Jeffery Dale Kurtz
(Kurtz) and Peter J. Reauduy (Beauduy).
Kurtz said that on Deoember lO, 1993, [at) "Approximately
2110 in the morning, I had observed a green Honda Accord Sedan
traveling north on South Market street. About that same time, I
reoeived notification over the radio that vehicle had just failed
to stop for a checkpoint. I then began to pursue after the
vehicle. We entered the Borough of Mechanicsburg, and a traffic
stop was finally initiated on the vehicle in the first block of
West Stouffer Alley (Tr,p.p.4,5). Molinaro interposed a hearsay
objection to Kurtz's statement that he had "...failed to stop for
a [sobriety] checkpoint>> (Tr.p.5), The Court Bustained
Molinaro's hearsay objection, stating for the record, "Well, I
won't oonsider it for the truth of the statement os to whether
he, in fact, went through the checkpoint. * * * That portion of
the testimony is stricken" (Tr.p.5). * * * The testimony as to
what he [Kurtz) heard from another officer will not be considered
by the Court for the truth of those out-of-court declarations
(Tr.p.7) .
In connection with the asserted checkpoint, Kurtz wos asked
if he or his partner had in their pOBBession any written
authority outhorizing 0 checkpoint to be set up for stopping
motor vehicles in the area he was patrolling. Kurtz testified,
"Establishing the right? 1 have no knowledge of that, sir.
Those arrangements would be handled by the DU1 coordinator who is
employed by the county (Tr.p.15)." Kurtz further testified that
2
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h. had no knowledge if the county UUI coordinator sent out
authority to set up a sobriety oheckpoint. Q. When you
conltantly say it would be handled by the DUX coordinator, can
you state for the record that you have no knowledge whether one
was sent out or not? Isn't ~hat true? A. one what wal lent
out? Q. Authority to set up a sobriety checkpoint. You have no
knowledge? A. That'. correct, sir (Tr.p.16).
Kurtz testified that he had not received the license plate
number of the vehicle whioh had ftssertedly driven through a
checkpoint nor had he seen Molinaro drive through any asserted
checkpoint, "Q. Officer, you testified earlier, and the counsel
for the Commonwealth asked you, no license plate of the vehicle
wal ~ver received by you, was it? A. No, there was not. * * *
You never rsceived the license plate number of the vehiole Mr.
Molinaro was driving, did you? A. No, I did not. You never saw
Mr. Molinaro drive through any asserted sobriety cheCkpoint? A.
'No, I did not (Tr.p.p.13,14).>>
on its own motion the Court questioned Kurtz as to whether
Kurtz witnessed Molinaro drive through any asserted checkpoint,
Q. So, did you see the checkpoint? A. I was in view of the
checkpoint, yes. Q. All right. Were you in view of the
cheokpoint at the time you got the radio transmission that
someone had gone through? A. Yes, I was, your Honor. Q. Did
you se~ the Defendant's vehicle go through it? A. No, I did not
.pecifioally see it go through it. (Tr.p.29).
:)
"
,~ -
After Molinaro was stopped in the first blook of West
Stouffer Alley Kurtz said, "As I approached the vehicle and beqan
to speak to him, I could deteot the odor of an alcoholic beveraqe
about his breath and also notioed that he had glassy eyes. * * *
I asked him if he would perform some sobriety tests. After
havinq him exit his vehiole, I noticed that he had a slight weave
about him as he walked and as he would stand still. He stated
that he would not perform any tests under those conditions
(Tr.p.p.8,9). Asked about the conditions, Kurtz said, "He made
reference to the fact that I had stopped him for no reason, that
he had went past a -- what he had stated was an acoident. He saw
polioe cars and lights, but he had stated that no one tried to
stop him. * * * After speaking to him a few more minutes and
asking him a second time if he would perform some sobriety tests/
at which time he again stated that he would not, I plaoed him in
handcuffs to transport him back to the checkpoint location in the
rear seat of my vehiole (Tr.p.9). Molinaro was not placed under
arrest until he arrived at the asserted checkpoint, "Upon arrival
back at the cheokpoint, he was removed from the rear seat of my
vehicle into an awaiting ambulanoe that we had at the oheokpoint
location. * * * I advised him that he was under arrest for
driving under the influence of alcohol or a controlled substance
(Tr.p.l0)." There is some question as to the length of time that
Molinaro was restrained of his liberty and then placed in
handcuffs before he waR plaoed under arrest. Kurtz said that the
"... traffio stop was at 2:19 and at 2140 I transported him --
4
, ~-
, I
~e9an to tranaport him baok to the cheokpoint looation. That'a
approximately twenty minutee (Tr.p.:Hl)." Kurtz said that "He
(Molinaro) wae in handcuff. approximately nine minutes
(Tr.p.p.26, ~6), Kurtz eaid that he eearched Molinaro'" vehicle
"...under both seats and along the console of the car (Tr.p.27)."
Back at the asserted oheckpoint Kurtz said that "(he) I
advieed him that he was under arrest for driving under the
influence of alcohol or a controlled substanoe. I asked him if
he would allow a blood sample to be drawn, He stated I refuse,
or something to that effect. I then advised him of the Implied
Coneent Law of the Pennsylvania Vehicle code, 1547. He again
stated that he refused (Tr.p.l0). Kurtz then said that he
"...read the sheet that we SUbmit to PennDOT for a refusal
(Tr.p.ll)." According to Kurtz he advised Molinaro, "Pleaso be
advised you are now under arrest for driving under the influence
of aloohol or a controlled substance pursuant to Section 3731 of
the Vehiole Code (Tr.p.12).>>
On cross examination Molinaro asked, "Q. So you read it to
him twice, not once but twice? A, That's correct, sir. Q. You
never gave him another opportunity to take the test, did you,
after roading the form? A. After reading that form and asking
him to sign, which he refused, I did not. Q. Doesn't it state
on your (form] statement, (reading): Officer note, the refusal
to eign this form is not a refusal to submit to the chemioal
teet. You must still give the motorist an opportunity to test
after revieWing this form. It states that, does it not? A.
!l
,~ -
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That'. correct, it does. Q. You testified, if I rocall
correotly, that you never gave him that opportunity? A. That's
correct (Tr.p.l8).
Questioned as to why he had searched Molinaro's vehicle
Kurtz said, >>1 smelled the odor of an alcoholic beverage while
securing his vehicle. I began to look through it for -- Q. what?
A. Other alooholiQ beverages that may have been opened inside the
car (Tr.p.26). Kurtz said that he had searched Molinaro's
vehicle, "...undorneath both seats and along the console of the
car (Tr.p.27).It No alcoholic beverages wore found,
The testimony of Beauduy is at best equivocal, At one point
in cross examination he states, Q. Is it your testimony to His
Honor that you explained to Mr. Molinaro what I was asking your
partner (the difference between a civil proceeding and a criminal
prooeeding and the two suspensions that accompany each
proceeding)? A. What I testified to is what I do baaed on my
experiences working for the DUI center part time and probably
coming up with (sic) more refusals beoause I'm at the center and
all I deal with is DUIs. And I tell them -- this is my personal
disoretion so that there's no question and they can't say later
that they didn't understand -- I tell them the difference between
(a criminal prosecution and a civil prosecution) -- that
regardless if they're oonvicted, they lOBe their license for a
year if they refuse. Q. Do you also explain to them that there
is a suspension that acoompanies the DUI on the criminal side?
A. I do at the booking center, yes. Q. You explain that to
6
,~ - .....,.. -
them as well. Did you do that in this case? A. Not to this
Defendant.
At another point in cross examination Deauduy states, Q.
Now, with reference to Mr. Molinaro, I think, now, we have your
partner givinq him one varbal warning trom his card
(Tr.p.p.39,40)? A. Correot. Q. I understand that he also
writes -- not only is there one criminal card, now, he reads from
the DL-26, you testified? A. That's correct. Q. Do I
underetand that after your partner did that, that you, yourself,
went and then explained it a third time to him? A. I tried to
put it in -- letting him know that if he felt that the reason for
the etop was illsgal, for whatever reason, and he could get the
conviction for DUI refused, that he still was facinq a one-year
suspension. It's short sweet and simple. That's something that
I do, personally, so that there's no misunderstanding that if
they kick the DUI that they don't have to deal with PennDOT
either (Tr.p.41).
It is unclear from Beauduy's testimony what exactly he did
say to Molinaro, It is clear that what Kurtz and Beauduy did say
was overtly confusing as a matter of law. Beauduy thought that
Kurtz had confused Molinaro and Beauduy tried to eliminate the
confusion but only compounded the confusion.
1
. I
"
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8'1'A'l'UTORY ^U'rIlORl'l'Y ANI) CASE LAW
In 7~ Pa.C.S.A. seotion 6l0B(b) Pennsylvania permits a
nsystematic" check of motor vehicles by police offioers, say, at
sobriety cheokpointsl
Seotion 6308(b) statesl
Investigation by police officers
(b) Authority of police offioer.--Whenever a police
officer is engaged in 8 syotematio program of ohecking
vehicles or drivers or has articulable and reasonable
grounds to suspect a violation of this title he may
stop a vehicle, upon request or signal, for the purpose
of checking the vehicle's registration, proof of
finanoial responsibility, vehiole identification number
or engine number of the driver's license, or to secure
such other information as the offioer may reasonably
believe to be necessary to enforce the provisions of
this title,
The people of Pennsylvania do not lose all their rights as
Amerioan citizens simply beoause Pennsylvania delineates a
drivers license a privilege. Between thG right of Pennsylvania
to make its roads safe from drunk drivers and tha right of the
people to an expectation of privacy and to be freo from physical
and psychologioal intrusion from Pennsylvania lies a lair, a
midpoint so to speak, where the interests of Pennsylvania and the
people are balanced.
The Syllabus in Delaware v.~~, 99 a.ct. l391, 1393-94
(1979), states the facts and then delineates the lair that
balances the interests of a state and the peoplel
A patrolman in a police cruiser stopped an
automobile occupied by respondent and seized marijuana
in plain view on the car floor. . .. The patrolman
was not acting pursuant to any standards, guidelines,
or procedures pertaining to document spot ohecks,
8
.
,
'~ -
"'..... '"
promulguted by eithor his dopurtment or the state
Attorney General.
* * *
(b) The state's interest in discretionary spot
ohecks as a means of ensuring the safety of its
roadwars does, not outweigh the resulting intrusion on
the pr vaoy and security of the person detained. . . .
(c) An individual operating or traveling in an
automobile does not lose all reasonable expectation of
privaoy simply because the automobile and its use are
eubject to government regulation. Peopls are not shorn
of all Fourth Amendment protection when they step from
their home~ onto the public sidewalkl nor are they
shorn of those interests when they step from the
sidewalks into their automobiles. . . .
The Syllabus in Michigan Dept. of state Police v. sitz, 110 S.ct.
2481, 2482 (1990), states the necessary procedures for
establiShing a sobriety checkpoint I
Petitioners, the Michigan state Police Department
and its Di.rector, established a highway sobriety
checkpoint program with guidelines governing checkpoint
operations, site selection, and publicity.
In ~, 2487-88, the court statedl
In DelawLre v. Prouse, supra, we disapproved
random stop. made by Delaware Highway Patrol officers
in an effort to apprehend unlicensed drivers and unsafe
vehicles. . . . We observed that the random stops
involved the "kind of standardless and unconstrained
discretion [which] is the evil the Court has discerned
when in previous cases it has insisted that the
discretion of the official in the field be
circumscribed, at least to some extent.>> . . .
. . . During the operation of the Saginaw county
checkpoint, the detention of uach of the 126 vehicles
that enter.ed the cheokpoint resulted in the arrest of
two drunken drivers. stated as a percentage,
approximately 1.5 percent of the drivers passing
through the checkpoint were arrested for alcohol
impairment. In addition, an expert witness testified
at the trial that experience in other states
demonstrated that, on the whole, sobriety checkpoints
9
..... -
resulted in drunken driving nrrests of nround 1 percont
of all motorists atopped, . . .
In sum, the ba1anoe of the state's interest in
preventing drunken drivinq, the extent to which this
system can reasonably be said to advance that interest,
and the deqree of intrusion upon individual motorists
who are briefly stopped, weighs in favor of the state
proqrsm. . .
The question ot a knowinq and oonscious refusal to submit to
chemical testing was addressed in the Pennsylvania case of
Pollock v. com., Dept. oI-Transp., 634 A.2d 852, 854-855 (pa.
Cmwlth. 1993). The court statedl
On March 17, 1992, Pollook was arrested and
oharged with driving under the influence of alcohol.
DOT notified Pollock that her driver's license would be
suspended for refusing to submit to chemical testing
after her arrest and she appealed to the trial court
which held 0 hearing. DOT presented the arresting
offioer, Bruce E. Keffer, who t~stified that he
responded to a radio call of a man assaulting a woman
in a car. When the officer arrived at the parking lot
where the car was looated, Pol look was drivinq out of
the lot when he pulled her over. He further stated
that he smelled a strong odor. ot alcohol, noticed that
her eyes were glassy and her speech slurred, and that
she staggered when she got out of her oar and could not
otand in one place without loeing her balance.
Officer Keffer testified that after Pollock failed
three sobriety tests, he arrested her and read from a
standard implied oonsent warning form which informed
Pollock that her operating privileges would bo
suspended for one year if she refused to submit to
chemical testing and that she did not have the right to
oonsult with an attorner or anrone else before takinq
the chemical test. Pol ock to d Officer Keffer that
she understood the warnings but she refused to go to a
hospital for a blood test. Officer Keffer reminded
Pollock that she would lose her operating privileges
for one year if she did not oonsent to the blood test
and she again refused and then signed a chemical test
refusal form. . . .
. . .
10
,., '.............
t'
. . . When 0 licensee appeals a lioense suspension
un~er Section l647(b)(11 ot the Coda, DOT must
establish before tho tr al court that the driver was
arrested for ~riving under the influence of aloohol,
was asked to submit to a chemical test, refusod to do
so, and was specifioally warned that refusal would
result in h~s or her license being suspended.
qartw~iqbt v. Commonwealth, 138 Pa. Commonwealth ct.
3211, 1187 A.2d ~09, appeal denied, 628 Pa. 6411, 60 A.2d
196 (1991). If DOT presents SUfficient proof of the
legal elements required to sustain the suspension, the
burden shifts to the licensee to show that he or she
was physioally incapable of making a knowinq and
conscious refusal. . , .
. . . Here, the trial court implicitly found
credible the police officers' test~mony that Pollock
said that she understood her rights and that she never
told the offioers she did not understand the warnings
or that she was confused.
Our Pennsylvania Supreme Court, In ~m. v. Kohl, 615 A.2d
308, 309-10 (pa. 1992), held that 75 Pa.C.s.A. 1547 (a)(2) was
unoonstitutiona1, Justice Zappala writing for the court stated:
We hold that the chamical tests authorized br ~
1547(a)(2) violate the Fourth Amendment of the Un ted
states Constitution and Article I, ~ 8 of the
Pennsylvania Constitution.
The oourt articulated that a search or requirement to submit to a
chemical test bases upon the mere fact that a motor vehicle was
involved in a motor vehicle acoident violates both the
Pennsylvania and United states oonstitutions (KQhl p.313). rhe
incorporation of the Prouse principles tor balancing the
interests of Pennsylvania and its citizens but omitting reference
to aita impliedly rules that Prouse comports with Article I
section of the Pennsylvania Constitution but aita does not.
In KQhl, page 315, the oourt stated that 1547(a)(1) was
constitutional because it was not premised upon implied consent
11
--
alone but that a police oft.ioor must first have independent
probable caume to believe that a person was driving a vehiole
while under the influenQe of alcoholr
In Quarles, the Superior Court conoluded that the
oonstitutional basi~ for a blood, urine, or chemical
test under 8 1647(a)(l) was the existenoe of probable
cause to believe that the suspect had been driving
under the influenoe of alcohol or a controlled
substanoe. The superior Court specifically rejected an
interpretation of the provision that would premise the
constitutionality of the provision on the driver's
implied consent alone. In adopting the construction of
"reasonable grounds" to mean "prObable cause", the
Superior Court upheld 8 l647(a)(1) as constitutional.
section 3731 (a)(l), 76 pa.c.S.A., defines the offense
of Drivin9 under the influence ot alcohol or controlled BUb-
atano.1
(a) Offenslt defined. - A per'son shall not drive, operate or
be in actual physioal cqntrol of the movement of any vehiclel
(1) while under the influence of alcohol to a degree which
renders the person incapable of safe driving1
DISCUSSION
DOT FAILED TO PROVE THAT MOLINARO FAILED TO STOP FOR A SOBRIETY
CHECKPOINT
DOT failed to prove that Molinaro failed to stop for a
oheckpoint, if a constitutional checkpoint was in existenoe on
December 18, 1993. The Court questioned Kurtz as to whether he
was in view of the asserted checkpoint when he received the radio
transmission that someone had gone through. Kurtz answered yes
but testified that he did not see Molinaro's vehiole go through
the oheckpoint. The question then becomes whether the police can
12
.top a motorist without a legal basis and then demand that he
lubmit to ohemical testing or lose his lioense tor one year.
Some may argue yes and attempt to justify such a prooodure upon
the ground that Molinaro is not entitled to due prooosa
guarantees of the Fourth, Fifth, and fourteenth Amdndments to the
Federal Constitution or Article I Section I and Artiole I Section
8 of the Pennsylvania constitution because the instant matter i.
a civil proceeding. To aocept such an argument as the publio
polioy of Pennsylvania would be wrong and run counter to the
ordered concept of liberty understood to lie at the oore of a
free society.
DOT FAILED TO PROVE THE EXISTENCE OF A CONSTITUTIONAL SOBRIETY
CHECKPOINT
DOT tailed to prove that a "systematic" checkpoint within
the meaning of 75 Pa.C.S.A. 6308 and the gloss of Prouse and ~
was in place on Dec~mber 18, 1993, for anyone to be the SUbject
for state intrusion.
If the court finds that 8 constitutional sobriety cheokpoint
was in existence on December 18, 1993, and that Molinaro failed
to atop, as ordered by 8 police officer, the procedures employed
by DOT to demand chemical testing of Molinaro violate Pollock.
Under the holding of Pol look a person must be placed under arrest
for a violation of section 37)1 before a police officer may
demand chemical testing. Kurtz testified that he demanded that
Molinaro first submit to chemical testing and when Molinaro
>>refused" Kurtz placed Molinaro under arrest for a violation of
711 Pa.C.S.A. 373l. Therefore, Kurtz did not follow the procedure
13
.....t _'
'r'il""
of the statute or the qloss of ~DllDCk. Nor did Kurtz ever
t8lltity that in his opinion Molinaro was under the influence qf
alcohol to a degree whioh renderod him incapable of safe drivinq.
00'1' did not present sufficient proof of the leqal elements
required to sustllin the suepension of Molinaro's license.
Further, section 3731 requires that an arrest under slotion 3731
may be made only where a person is under the influenoe of alcohol
to a degree whioh rendere the person incapable of safe driving.
Kurtz only testified that Molinaro had an odor of alcohol on hia
breath, had glassy eyes, and had a sliqht weave when he walked
and etood. Kurtz, never gave an opinion that Molinaro was
intoxioated to a degree which rendered him incapable of safe
driving. In point of fact, Qccording to Kurtz, Molinaro did not
evidence any slurred speech, a behavioral pattern reoognized in
Polloc~ to constitute legal grounds for requesting a motorist to
eubmit to chemical testing.
MOLINARO DID NOT KNOWINGLY AND CONSCIOUSLY REFUSE TO SUBMIT ro
CHEMICAL TESTING
Molinaro's asserted refusal to submit to chemical testinq
was not a oonscious and knowing refusal under Pollook. Kurtz
testified that he read to Molinaro from a card that he carried in
his wallet that if Molinaro did not submit to chemical testinq
then his license would be suspended for one year. Kurtz then
testified that he read to Molinaro, from Department's form DL-26
(3-92), lines 1,2,3, and 4. DOT's form DL-26 (3-92) carries a
cautionary note to police officers, ~, that a refusal to sign
14
1.
,. -
the form is not a refusal to su~mit to the ohemioal test and the
officer mu~t give the ~otorist an opportunity to take the test
after reviewing the torm. ~urtz testified that he never gave
Molinaro the opportunity to take the chemical test after
reviewing the form (Tr.p.18). Further, Kurtz teatified that he
advised Molinaro that he must submit to chemical testing under
11147 of the vehicle oode (a oivil proceeding) or lose his lioen8e
for one year and then advised him that he was under arrest for
drunk driving under 1631 (a oriminal prooeeding) of the Code.
Beauduy testified that he was present when Kurtz qave Molinaro
the explanation of his rights. Notwithstanding the explanation
of rights givQn by Kurtz to Molinaro, Beauduy felt that a further
explanation was neoessary. Otherwise he would not have attempted
to remove the overt confusion created by Kurtz's explanation Of
rights and procedures employed in arresting Molinaro. If
Beauduy, a police officer, thought it was nooessary to attempt a
further explanatiorl to Molinaro of his rights it oan not be
gainsaid t~~: "urtz's explanation created an overt manifestation
of oonfusion as a matter of law. Beauduy'8 attempt to remove the
oonfusion caused by Kurtz added further overt oonfusion as a
matter of law for Molinaro. A reasonable person, simllarly
situated as Molinaro, hearing one explanation about his rights
from Kurtz and a second explanation from Beauduy would not have
the ~eans to discern who or what to believe concerning his
rights. Molinaro did not knowingly and consciously refuse
ohemical testing.
III
._-
"iiil'lt'Jwr,,^,~}/I'fhi
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVlL TERM
COMMONWEALTH OF PENNSYLVANIA, )
Plaintiff/Respondent
v.
94-06611
DAVID PETER MOLINARO,
Defendant/Petitioner
P~OOF OF SERVICE
I hereby certify that I am this day servin9 the foregoin9
document upon the following person and in the manner indioated
below whiQh service satisfies the requirements of Pa. N.A.P. 1211
FIRST CLASS HAIL POSTAGE PREPAID
1/
\
Mat,thew X. Haeokler, Esquire
Assistant Counsel
Room 103 Transportation
and Safety Building
Harrisburg, Pc>'~~"h:_ /:J If --'~
Datel June i, 1994 -----~ ~
Felix . DeGuilio
Attorney for Defendant
David Peter Molinaro
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Molinaro'. o.r h.d p....d through. cheokpoint without .topping ..
r.quired. Offioer ~urtz pur.ued Molinaro for three blocks into the
Borough of Meohaniosburg where . stop wa. initiated in the first
blook of W.st stouffer Alley.
While talking with MOlinaro, Officer ~urtz det.oted the
odor of an alooholio bev.rage on Molinaro'. breath .nd notioed th.t
Molinaro had glas.y eyes. Officer Kurtz a.ked Molinaro to perform
~ome field sobriety te.t.. As Molinaro exited his vehicle, Officer
Kurtz notic,ed that he weaved a. he walked and stood. Molinaro
refu..d to perform the field sobriety test., .tating that he had
been stopp.d for no reason, Aftor Molinaro refused the leoond
request by Officer ~urtz to perform field .obriety te.t., he wa.
plaoed in handcuffs and transported in the police car to the
checkpoint looation.
Molinaro was placed inside a waiting ambulance upon hi.
arrival at the checkpoint. Officer Kurtz then advi.ed Molinaro he
was under arrest for driving under the influence ot aloohol and wa.
a.ked to submit to a blood te.t. Molinaro retused to SUbmit to a
ohemical test for the purpose of determining blood aloohol content.
Officer Kurtz next advi.ed Molinaro of the implied con.ent
requirement. of the Code, indioating that Molinaro'. operatinq
privilege would be suspended for a year for refusal to submit to
the chemical t..t. Molinaro was also advised that hi.
oon.titution.l rights did not apply to chemiollll teating and that he
2
. \
\,\
had no ~lvht to sp.ak to an atto~n.y O~ anyone el.e p~ior to takinv
the ohe.ical t.et. Molinaro avain ~efused to ,ub~it to the blood
teat.
Officer ~urtl th.n r.ad Molinaro the ohe~lQal t.at
warninga oontained on the Department'. DL-26 form.2 Molinaro again
refused to aubmit to the blood t.at and alao refuaed to aiqn the
DL-26 form.
No ,.iranda' warnings were given.
A refuaal was
reportad to the Department. By notice dated January 21, 1994,
Molinaro'a operating privilege waa auapended fOl. one year a. a
reault of his refuaal to aubmit to ohemioal testing on Deoember 18,
11193.
Molinaro filed a timely appeal with the trial court on
February 14, 1994.
A 4a ~ hearing waa held before the trial court on May
9, 1994. At the hearing, the Department presented the teatimony of
two polioe officera, Officer Kurtz and Officer Peter J. Beauduy.
Both officera testified ae to the events aurrounding the refuaal
whioh occurred on December 18, 1993.
Molinaro preaentad no
evi4ence on hia behalf. By order dated Auguat 9, 1994, the trial
'The warnings contained on DL-26 forma have been held to be
aUfficient notice of auspenaion under D8tlartment of Transtlortation.
Bureau of Traffic Safety v. o'connell, 521 Pa. 242, 11511 A.2d 873
(Un) and ita progeny. See Leckenby v. DeDartment. of
TransDortation/ Bureau of Driver Licenaina, 160 Pa. Commonwealth
ct. 26, 634 A.2d 670 (1993), atlDeal denied, 536 Pa. 632, 637 A.2d
292 (1993) I Department of TranaDortation. Bureau of Driver
Liceneina v. Crowley, 160 Pa. Commonwealth ct. 324, 634 A.2d 826
(1993) .
'384 U.S. 436 (1966).
3
~
Qourt d.ni.d Molin.ro'. .tatutory .pp.al. Molin.ro now .ppeal.
th.t d.t.rmination to thi. Court.4
Of tha i..u.. pre.antad by Molin.ro in hi. bri.f to thi.
oourt, thr.. i..u.. .r. prop.rly rip. for our con.id.r.tion.' w.
.uD.ril. tha thr.e i..uee for our con.id.r.tion a. follow..
Fir.t, Molin.ro ....rt. that tha .xi.t.no. of . con.titution.lly
.uttioiant .obriety qh.ckpoint w.. not ..t.bUsh.d.
s.oond,
Molinaro Ar9u.. h. clid not knowingly and con.ciou.ly rafu.. to
.ubmit to oh.mioal t..ting. Finally, Molin.ro oont.nd. the triel
40ur .oope of r.viaw in operatin9 privilaga .u.p.n.ion c....
i. limit.d to d.termining whether the finding. of the trial court
.r. .upport.d by competent ev idence, whether there ha. b..n .n
.rroneou. conclusion of law or whether a manif..t .bu.. of
diaoretion wa. committed. Wheatl.y v. DlIlpartmant of
Tran.Dortation, 104 Pa. Commonwsalth ct. 171, e21 A.2d e07 (1987).
'In the .r9ument portion of hi. briaf, Molinaro pr...nt. tour
i..u.. including whether he knowingly and con.ciou.ly r.fu.ed to
.ubmit to qhemical testing, whether he wa. prop.rly plac.d und.r
arr..t prior to the request to .ubmit to chemic.l t..ting, whath.r
the Dapartm.nt tailed to prove Molinaro drove through a chaokpoint
without atopping .s required and wheth.r the D~partm.nt f.il.d to
prove the .xi.t.nce of a constitutionally valid ch.ckpoint. w.
will tr.at tha latter two issu.. a. ona, nam.ly of wh.th.r tha
axiMt.no. of a con.titutionally valid checkpoint w.. ..tabli.had
which i. the ie.u. pr..ent.d to the trial court and which i. the
i..ue prop.rly pr.served for our consideration. Se. P.. R.A.P. 302
(a) .
Molinaro pre.ents three is.u.. in hi. stat.m.nt of
Qu..tion. Involv.d including tha i.su. of knowing and con.ciou.
r.fu.al, an i..ue of wh.thar a penn.ylvania citill.n uainq tha
hiqhw.y. of Penn.ylvania lo... aU right. to an exp.ot.Uon of
privacy or qu.rant... of the constitution onc. he g.t. b.hind the
wh..l of hi. car, and an i.sua of wh.th.r an offic.r mu.t have
rea.on.bl. qround. to believe he wa. driving undar the influ.nc. to
. d.qr.. which r.nd.rad him incapabl. of driving .af.ly and to then
pl.o. him undar arr.st before raque.ting chamical ta.tinq. Th...
i..ua. will be vi.wed a. the .am. three i..u.. pr...nted in the
.rqum.nt ..ction and will be con.id.r.d thu.ly.
4
ClOUl't ened in detenainin9 he w.. "aue.ted" prior to the r:equeat
to allb.it to ohemioal te.tin9.
Initially, we note that in order to sustain a auspension
under the Co"., the Department mu.t e.tabli.h that the driver
involved I 1) was arrested for drivin9 under the influence of
aloohol a) wa. a.k.d to submit to a ohemical te.t 3) refu.ed to do
ao/ and 4) wa. .pecifically warned that a refu.al would re.ult in
the suspension of opentinq privlleqee. Bell v. Q,partment of
Transoortation. Bureau of Dr~var Licanainq, 147 Pa. commonwealth
Ct. 157, 607 A.ad 304 (1992). In this case, the requiaite elements
were establ1.hed.
As to the i.aue of the constitutionality of the
oheokpoint, aa noted by the trial court, the Supre.e Court of this
Commonwealth ~~a determined that tha legality of a checkpoint is
irrelevant for purposes of a license au.pension proce.dinq. The
proposition was eatabliahad. in Department of Tranallortation v.
Myaocki, 517 Pa. 175, 535 A.2d 77 (1987), that the leqality of .
licen.ee's initial traffic stop or arreet .is irrelevant for
purpose. of determining whether a licensee's operatinq privilege
ahould be suapended under Section 1547. Thus, the detenaination of
the trial court that the power of the Department to suapend a
driver'. lioense for a test refusal is not dependent on the
leqal1ty of the erreat, was pl'oper. 1.IL. See opinion of trial
oourt at p. 8.
II
,.
f'
R.qardinq Molinaro'. oontention th.t his r.fu..l to
aubmit to ghemio.l testinq wa. not knowinq and consoiou., the lt~
ia aa tollowa. Onoe the D.partment h.. ..tisfied ita initial
burd.n and eatablished a prima facie case to .upport an operatinq
pr1vileqe auspension, the burd.n of proof ahifta to the mutorist to
prove by gompetent evid.noe that the r.tuaal w.s not knowinq or
oonacious.
Dapartmant of Tran.portation. ,ur.,u of Driv.r
Lic.n.in~ v. Moaa, 146 Pa. COllllllonwealth ct. 330, 6015 A.2d 12711
(1992), apneal deni.d, 1532 Pa. 648, 614 A.2d 1144 (1992).
Herein, the record establiehe. that the trial court
properly d.termin.d that the Department met ita burden but that
Molinaro fail.d to satiBty his burden of proof. 6 Officer Kurtz
testifi.d that h. advised Molinaro h. was und.r arr..t for DUI .nd
a.ked him to submit to a blOOd teat on s.veral occ..ion.. Molinaro
clearly refused to submit to the blood te.t on eaoh occ.sion a
requ..t Was mad. by Officer Kurtiz:.
To the contrary, Molinaro
pre.ent.d no t..timonial or othar evid.no. on his own b.half.
MOlinaro's bare ....rtions of confusion are in.uffioient to m.ke
out hie burden of proving that his refusal was not knowinq or
con.cious. s.. D8nartment of Tran.portation. Bur..u of Driver
Licen.ina v. Tomcz.k, 132 Pa. commonwealth ct. 38, 1171 A.2dU04
(1990).
'The i.sue of whether a motorist met the requisite burden ot
proof i. fully reviewable by thi. Court. HQaa.
6
,
rinally, as to the issue of "an'e.t", un4er the Code it
i. .uffioient that a lioensee be under the custody and oontrol of
the arre.tinq officer in order to constitute an "arre.t". Weloome
v. D~par~m.nt of Trana9ortation. Bureau ot Driver Lic.~.ina,
Pa. COlDIDonwealth ct. _, 647 A.2d 971 (1994), Department of
Trananort.at.ion. Bureau of Driver L~a.n.in9 v. Jon.., 120 Pa.
cOlDIDonwealth ct. 88, 1147 A.2d 877 (1988), appeal denied, e22 Pa.
e7g, ell9 A.2d 40 (1989). The proper is.ue beoome. whether, under
the totality of the oircumstances, the reasonable impre.sion of the
lioen.ee .hould have been that he or she were subject to the
cu.tody and control of the officer at the time the chemioal te.t
wa. refused. Weloome, Jone~.
In this case, Officer Kurtz took Molinaro into oustody,
placed handcuffs on him, placed him in the polioe vehiole, then
transported him to thu DUI Checkpoint and escorted him to the
aJllbulance which wa. present for the purpose of taking blood
samples. The trial court correctly determined that otfioer Kurtz
exerci.ed suffioient custody and oontrol over Molinaro in
sufficient manner as to effectuate an >>arrest>> for all intents and
purpo..s.
Aocordinqly, on the
the trial court ls affirmed.
the order of
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COMMONWil^"TH COURT OF PIlNNSYI,vANIA
'l'Ill>: IIN/JI':U;;I\'dH.'ll, 111 'JI '/Iii!'!! .11 \' II! t !II' I'nllrl III ('qlllllll',1 P1.a:~IHi
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it. .allY, dlld tIll' doc\". l VI;! r I"~l III 1111' ',Jll()'.'''lllfjh,lIl','1 ~
No. 94-665 Civil Term, ~(). 2207 C./). 1994, )
, \.. ~....-
COMMONWBAl.TH Of' PBNNBYINAMtA
VB.
DAVID PETER MOl,INARO
.III '-'i1l1Irli{ltll.": \,i'li I'i, 1i,,\,I', 1'1\1 (,,),
'1111n dr,lclIllll'ntn ((\11;1)1.'1:' I :ltl I II.. i'l l'rlld llil'/rI bOOll tllllntHH'prl frQIII
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dC)(,\Hllont I tIlt.' tll'rJlLcr '.JI. /ldtJ' :' "()Itlpr \',-) i 11'1 IIj(l l!r)l'IlInlllll .
.rho dill,.' t'n ~.,hil'1J tllt~' It,,'r rd ~',l" 11""'11 I.ldlllWllll,-d III Illf'
"J'tJ,'llil\:U C,'lll'. i'-l Ollt()ber l7, 1994
(lie".!. of COIIl'I:)
I'1~1~~~
I
hn oddltirmnl cupy uf tldo ,:ort.lfirlill.u III "nl'lou",).
mId elate copy, I'he.rC!by llaltlll1\'/ lC~IJ$n!l r.wclpt 'i~'f t h 1 n
1'l.n<llH! n l!Jll
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PAGE 1<<>.
1 - 6
10 - 74
75 - 66
67 - 94
95 - 96
99 - 103
104 - 109
110
.~
1''''
^mona the Re~nrdl alld ')rn~~~dlnMI ~nrnll~d In the ~Illlrt "f ('U,",""" ')I~al In and fnr the
~nunty nf Cunber I and
No. 2207 C.P. 1994
tu Nu, 1)4 -66"> ~ivil
In the ('ummnnwealth uf pennlylvanla
T~rm, 19 ,_____ II ~untalned the fnllllwlna:
('OPY OF
AplJearmlee
_ l)OCKF.T ENTRY
COMMONWEALTH Of' I'ENNBYI.vANIA
VB.
DAVID PBTER MOI.INARO
9
Feb. 14, 1994, Petition on Appeal fron Suspension of Pivers [.ieense, filed.
March 7, 1994, Order of Court, filed, BYI ,J. Wesley Oler, Jr., J.
MIIy 9, 1994, Order of Court, filed. In Rei r.ieense Suspension Appeal
AND NaoI, t.his 9th day of May, 1994, upon consideration of t.he Petitionerls
Appeal fran Suspension of Opm"at.or's [,ieense, and following a hearing, the
mat.ter, at tho request of the Petitioner's counsel, is taken under advise-
ment. At the request of petitioner's counasl, the stenographer Is diret'terl
to prepare the notes of testimony in this case. The petitioner's brief
shall be due withIn twenty days of the f j,1J.I1\l of t.he tranocript, with the
Commonwelath's hrief being due fifteen days thereafter.
By the Court., J. Wesley Oler, Jr., ,J.
MIIy 27, 1994, Transcript, filed.
Aug. 9, 1994, Opinion and Oroer of Court, fHed.
AND N<l'I, this 9th day of August, 1<J94, upon consideration of Appellant's
Petit1.on on Appeal, frCJ11 Suopens.i.on of Operatorls l.icense, and following a
hearing on the matter, the pet.1.tion is DENtED.
By the Court, ,1. Wesley 01er, ,Jr., ,J.
Aug. 24, 1994, Petition for Stay and Order, f!led.
ANP NaoI, this 27th day of August, ]()<J4, up:m considerat1.on of the Defendan B
Petition for Stay, a RUl.E IS ISSUED upon the commonwcalth to ahow rause, J.f
any it has, why the reUef requeated in the Petition should not be grllnted.
RULE returnable within 20 days of service.
By the Court, ,J. Wesley OJer, ,Jr., ,J.
Sept. 1, 1994, Notice of Appeal, filed.
Notice is hereby given t~1t David Peter Molinaro, defendant above named,
hereby appeals to the C,mmnwcalth Court of Pennsylvania fran Oroer entered
on the 9th day of August, 1<J94. ThIs order Ims been entered in the docket
as evidenced by the attached copy of the docket entry.
By FeUx ,). tJeGulHo, Esq.
&.!pt. 14, 1994, No. 2207 C,D. 1<J<J4 assigned by C,mnonwcal.th Court. of PA.
Bet1t. 1.9, 1994, The Dep..1rtment of Tl'Unsp:>rtntion's Answcr to MoJJ.narols
Application for Superacdeas, fi led.
Sept. 22. 1994, Oroer of Court, HIed. In ReI Petition for Htay
AND NaoI,,:his 22nd day of Septembor, 1994, after careful roml1derat:.lon of
Defendflnt. 's Petition for Stay, and Plainitff's Answcr therto, the PetJ.tion
is DENIED.
III - 137 Brief find MIsc.
By thCl Court', ,J. Wealey O1or, ,Jr., ,J.
r'I
r-.
Commonweulth of l'enn.~lvunlu
Count~ of Cllmherlund
\ '1'
I, _l1Th'!'ence F.. Welk~r ,Prothonolur~
uf Ihe Court of Common Plfu' III und for .uid
Count~. do hereb~ eerllf~ Ihut Ihe fnreMo'nM I. u
full. true ulld eorreel eop~ ufthe whole record oflhe
eu.e therein ~tuted, wherein
No. 1.207 C.D. 1994
~nwealtQ of Penn8yIvan~
Plulnllff. und
~J[1d Peter Molinaro
llefendunl _, u, the .ume remulnN of reeurd
hefore Ihe Naid COllrt Ul No, 94-ill_ of
Civil Tenn. A.l>, 1'1_,
I have hereulllo .ct m~ hund and ufflxed Ihe Keal of .uld COUrl
do 0 tobe A, 0.. 1'1 ,
In TESTIMONY WHEREOF,
thl. __ Seventeenth
l)rlul1l)nlllllr~
I. _ Htlmld E. She<liY. "rcoldent Judge of Ihe ~nth
Judielallllmlcl, mmpoKed of the ('oullt~ of Cllmberlund, do eertlf~ Ihat Ltlwrence E. Welker.
Prothonotarv , h~ whom the annexed record. eerllneale and
alle.tatlun were mode alld Mlven, and whu, In hl~ UWII prllper handwrltina, thereunto .ul"erlbed hi. IIame
and affixed Ihe .ealuf the Courluf Cummun I'lellN of .ald ('ount~. waN, all he lime ohu dolna, und now i.
l'rolhunutar~ III und for Naid ('uunt~ of ClII1berIand In
the Commollweulth uf l'enn.~lvanla, dal~ cOlnml..luned and 4ualifled 10 all ofwhooe ael. a. sueh full faith
and credit ure and ought tu be given 0' well In ('1)Url, of jlldlcalure a, elsewhere, and thatlhe .ald reeord,
eertlfleale and alleOlallon arc In due fnrm uf Inw bnd 7ate, b~ Ihe pro e!ofneer" t? 1t,
-Wa. <.-,r-" ,. ,jtLl:'.t'.,)"
'}rc!lilh~ . ml.c
Commonwenltb uf l'enn,~lvnnla
Count~ uf Cumberlnnd
}..
I. Lawrens;.B E. Welker _, I'ruthollutar~ uf Ihe Cuurt of Common Pleas in
alld for Ihe Nald ('uunl~, du eertlf~ Ihntlhe lIonllrable _. Hllrold F. Shee]'!
b~ whllm Ihe foreglllng ntleOlalillll wn, made, and whll ha, thereunlll ,ub,eribed his nume, wa.. allhe time
of mnklng Iherellf, and .liII i.l're.ldenl Judge Ilf Ihe ('ourlllfCllmmon Plea., Orphan' Courl and ('IlUr! of
Quurler Se..lon.uf Ihe I'cu,,'ln nlld fllr .nld CUllllt~, dlll~ ('omml..lllned and 4ualifled; to all whose aels
u. .uch full fulth und credit urc und oughl tll he given, '" well In Courl. of Judicature a. el.ewhere,
l'tllllhltltll;\t\
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.IN THf. COURT OF COl'lMON PI.EAII OF CUMBti:HI.AND COUNTY, PENNSYl.VANIA
cIUMI NAI. III V IS ION
COMMONWEAI.TH elF Pf:NN/lYINAN 1 A,
No, t.',' c....~ 119 'f
Is",ue No,
vs,
PETITION ON APPEAl. FROM
SUSPti:NS ION Of' OPERA'fOR' Ii
J. I Cf:NSf:
DAVID PETER MOI.INARO
DefendRnt,
Code
Filed on behalf of
Defendant
Counsel of record for
this PartYI
Feiix J, DeOuilio, Esquire
PA I.D. 110771
"
loll
1509 LRwyerS BUlldin.
Pittsbur.h, PA 15219
I.
(412 )
261-1972
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IN 'l'H.: COUH'I' l)~' COMMON 1'1,~:MI O~' CUMBti:JH,ANIl COUNTY. P~:NNSV',VANIA
CRIMINAl" .HVIHION
COMMONW~:A1"I'/1 ()~' P.:NNtlY..vAN lA,
va,
'" S {'..0,J~ 119.,.
No,
IlAV III 1'~:'n:R MOld NAlW,
l'f;T 1 Tl.IJN.mJ. .tU)l'EA1hfIWMJ)!J~1)};Nlll,ON .. OL,OP.ERA'r.QR~.llL.wlili.u
1'0 'I'/I~ /I0NORA81,ti:, TIn: JU()OEH OF SAID COURT,
The peli lion of ()nvld Petel' Mol1nllro by hh attorney,
Felix J, De(]ulJio, l'eapectfUlly ropreRenta:
I, Petitioner is Dllvld Peter Mollnal'o a person who
resides at 12 Weal, 'locuSt Streot, Mechanic:aburll, Pennllylvania
17066.
2, Respondont Ifl till! Commonwolllth of PennsYlvania,
Ilepartment of Tranflpol'tBtl.on, Ilurollu of Drivel' Lic:enslnll, Room 103
Tl'8nsportatlon llnd Hafet.y llulIdln!!. IIBrrlRblll'g, Pennsylvania 17120.
3, On or about. JllnuBI'y 21, 1994, Petlt.loner was
notified by ReRpondent that hlR dl'lvlng privilege to operate a
motor vehicle waR bein!! HlIRpended for I year, effective 2/26/1994,
12101 a,m" for nn RHBel'ted vlolal.lon of Section 1547 of the
Vehicle Code, Chemical Test RefusRI on 12/18/1994, and directed
Potit.loner t.o comply with t.hl!l suspension or revocation of his
rlrlvlnll privilege by B return of his Operator's Llconse to the
DepRI'tment of 'I'ran!lportatlon, See ti:xhlb1t, "A" attached hereto and
made II pArt hereof,
,I. Petl tloner Is aggrieved by the Rctlon of Respondent
1
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In thllt. t.ho IId,lon of Ilt'/iJ)()lJdnnl. 11'1 llnlllwflll 1'01' t.ho folLowlnil
realionlll
(a) /:Illld suspension lH' I'evocllt.lon vloLlll.os t.he due
proceRII "Llllllle of Arl.\(,le J, I:Icctlon II, of thl'!
Pl'!IIIISY L van III, IInd t.he lith 1I,,,j 14 t.h Amendments to
the PedorllL Conlltll.utlon in that. Petitioner'.
operatln~ rl~htH lire belnil I.lIken from him wLthout
fL/'st IIffordlnll him the bflneflt. of Il due process
hellrinhl t,o dot.e/'mlne II' Rellpondent's action III
LlIwflll IInd Petitioner Iii MuLLt.y of a violation of
the Vehicle Codol
(b) Raid Buapenl'lion or revocatlon violates the due
proeeall clRuHe 01' ArUcle I, Section 9, of t,he
PennHylvllnla ConHtll.uUon, Rnd the 6t.h and 14th
Amendment.1I to t.he FederaL Conatitutlon in that
Petlt.loner haa yet t.o be found hluilty of a
vloJlltiun 01' thl> Vohlcle Codo th,It would havo given
Respondent tho I' i hlht to sUHpend 0/' revoke
Potltioner'li rlhlht t.o operat.e a mot.or vehlclel I
(e) SlIill f.luaporHlion 01' revocation violates the due
procells "LIlIUHt of ArUc,le J, Iloctlon 9, of the
PennayLvllnla ConlltLt.ution, line! the 6th Ilnd 14th
Amenllment,H 1.0 t.he Fodel'/I,I ConaU tution in that
Petitioner WIIS deprived of HubHtllntlve due process
by the conduct. 01' RnHpondent. 's lIllent in stoppinl,
ar/'esUnll, lllleatlonllll;l, IInd then lIubmitting an
lIffldAvlt. chllrgln~ that Pet.ltioner refused to
suhmit. 1.,0 chomlclll t.e"Un!l, where Petitioner did
not. volullt.lldly, knowln!(ly, Ilnd Int.ent.1onlllly
rofuae 1.0 !I'lbmll 1.0 chemical t.eatln!l,
(d) The aet.ioll of HOHpolldont ill sU!lpending or revokin.
Pet.lt.ionol"" OIHlI'IlUn!l privilege Is Arbitrary Ilnd
cnprlclollH,
5, Pelltioner humbly I'equesta the Court, pursuant to
t.he Act of 1978, aR amllJlIllld, April 28 Pol.. 202, No, 53, Section
(13)(7), effect.lve .1une 27, IlI7R, 76 P'l,C.R,A. S~\<)t1on 1660 to
~rAnt a hoarln!l to tAke tesl.lmollY IInd oXllmlllo into the filets of the
e/lRP to det.er'mln.' whllt.hel' t.ho Op'n'lIt.ol"S LlconRe of the Pet.itloner
Is 8uh,j""t. to r"c/iLl, cllllcellat.ion, RURponHlon 01' revocat.ion by
Respoll,lent. .
2
" .! " 'I' ,.,."",". ..
wall"l'fo
W/l~:IH:FUIH:, I'otit.iolltl" hllmldy Jl/'IlYOi I.hill /lolll)f'llhl.. Court
to llrUnt. him 11 he'lrlnll 011 I.hu within Appunl II/HI thlll. I.hiOi l'..tltlOIl
alld App..ul Ilhnll he n 1l1lpUVlledenll 1.0 the offlcilll Ilotlce of tha
Respondent,
The hearinll of this Appelll IIhall he hold 011 tho
day of _,_",..".__,,_____,..........,.,. lIH/4, atO' ell/ck,
~"lj,~;.Ca-.~lr:5t~ -
Attorney ~~ Petit.ioner
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COHHDHWiALTH 0' PIHH'VLVAHIA
UiPAftTHINT 0' TftAHIPO"TATION
Durllu of Driver Llqln.ing
Hlrri.burg, PA 171il
JANUARY U, 1"4
.....
lOt....""
--."",
-.-.
JAYIJ PETER "OLINARO
~I WEST LOCUST S'
"ECHANICSIURG PA ~1055
'~0~el'30001~?' OO~
011'lfl1"I'~
1111'151'
Oll/lln,l,
Dur Hotoriat I
A. I rllu1t ot your ViOI.tion of Section 1147 Of the Ve-
hicl, eo~e, CHIH1CAL .~w, Hh~UHAL on 12/11/1"1, vour driving
privilege 1. being SUSpeNDED tor. Plr10d ot 1 YIAft(S).
In order h COlltph' wUh thh ..notion YOU .re rellui,.ed
to r.turn In'" cur"ent rJ,'h.,.' I Hun.., l""ne,.,. plrlllU
.nd/or tl.porl,.v driy,r'. 11cln., (cI..ra clrd) in your po.-
....ion no lataI' thin ttll e"lctive dati li.ted b'low.
,.ilur. to COIIIP1Y with thi. notice 'hlll "e.u1t in thi. Bu-
r.lu r.t.rr1nl thi. ..tter to the P.nn.Vlv.nl. Stlt, Pollee
rur pru.toution under &.ct1on l~/il')I~) of the Vehicle Cod..
If yoU c.nnot COMplY With the requi,.e",.ntl .tlted Iboye, yOU
.Ult contlet the Bur'lu Clel in'or",.tion bllow) for further
dirlctionl on how to rlcelv, credit towlrd. your 'Inction.
When the dep.rt""nt r'Ceive. Vour l1c,n., or IcknOWl-
tdllllllulIIt, it w111 linG YOu a rlOUpt. it vou dO not rIce he
thit r.c.!pt With1n 115 d,u contlct the dep.rt..nt illlll'-
di,t,lV. Oth,rw1.., VOU .IV not b' D1ven crldit tOwlrd se,.v- /
in/l thh .."~Uon. . _... ____. , .~_
Cr.dit w111 not bellin untU III drher'l licen,........
productcs) are receivld 1n thil Bur.eu.
.rf,otty. nit. or SU".naion, 02/25/1"4, 12101 ....
....................................................................
IWARN1NII If YOU are COnVloted 'or driving while vour 11c.na. 1s ,
luaplnded, thl 'In.lt1.. will bll not 1"1 than '0 d.ys 1M,ri.on-/
IMent 'nd a .1,000 fine .nd en additional 1 y.ar lus"n.ion.
....................................................................
'le..e a,e the .neloaed 'PP11c,tion for r,.to,.atlon r..
~nr.)""'lIUon,
EXHIBIT "A"
s-
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1,/", d,jf'
VERIFICATIO~
I verify that the statements made in the within Petition
on Appeal are true and correct. I understand that false statements
herein are made subject to the penaltiee of 18 Pa,c.S. Seotion 4904
relating to unsworn falsification to authorities.
Dater I,
"J/U/tIL
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David Peter Molinaro
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CJlIlTJfICATE Or.._~m\Wa:
I, FeliK J. DeOuilio, Esquire, do hereby certify that on
the -1~ day of ~~~~~_ 1994, I served a true and correct
oopy of the within Petition on Appeal from suspension of Operator's
Liosnse upon the following person in manner and form followingl
CERTIfIED ~IL, PosTAa~ PREPAIQ
~ POll 3?4 850
Department of Transportation
aureau of Driver Licensing
citation Processing Division
Room 103
Transportation and Safety auilding
Harrisburg, PA 17120
!,/ r/ ,) . /1
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,f' (r_-.. .'C"vt '. '. I.
FeliK ~; DeGu!lio
Attorney for Petitioner
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ClOIOlONWlLATH 0' 'INNIIYLVAHrA, I IN THI ClOQRT 0' eOIOlON 'LIA. 0'
'l.intiff/a..pondent CUMI..LAND COUNTY, 'INN.YLVANXA
v. 14-0115 CIVIL T....
DAVID 'IT.. MOLINARO, 'ITITION ON A"IAL '10M
D.fendant/a..pondent 8UI'IN8ION ON O'IIATO.'1 LICIN..
IN .1. LIeIN.. IU8'INIION A"IAL
QII1I1 0' COURT
AND NOW, thi. 'th d.y of M.y, 1"., upon
oon.id.r.tion of the 'etitioner'. Appe.l from 8u.p.n.ion of
qp.r.tor'. Lio.n.., .nd following. h..ring, the matt.r, .t the
r.que.t of the P.tition.r'. ooun..l, i. t.k.n und.r .dvi....nt.
At the r.que.t of 'etition.r'. ooun.el, the .tenographer i.
direot.d to prep.re the note. of te.timony in thi. 0.... Th.
,.tition.r'. bri.f .h.ll be due within twenty day. Qf the filing
of the tr.n.oript, with the Commonwealth'. bri.r b.ing due
fift.en day. th.r..fter.
By the Court,
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Jd W..ley 01
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M.tth.w X. Ha.okl.r, ..quire
Coun..l for Pl.intiff/a..pondent
'.lix J. DIGuilio, I.quire
Coun..l for D.fend.nt/Petition.r
..1r
(I & rf u' o~ nIL",..], J
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TNI COURT. Tbi. i. the ti.e and plao. for a
hearing in the oa.e of Commonwealth of '.nn.ylvania v. David
'.t.r Molinaro. It i. . lioen.. .u.pen.ipn app..l. We'll
let the r.oord indicate that the 'etition.r i. pre.ent witb
hi. ooun.el, .n4 the Commonwe.lth i. r.prft.ent.4 by it.
ooun.el. Are botb ooun..l re.dy to prooeed?
HR. DeOUILIO. We ar..
HR. HAICKLIR. We .r., Your Honor.
TNI COURT. '1.... go .h.ad. Mr. I.eokl.r?
HR. HAICKLIR. Your Honor, we have two
witn...... The fir.t witn... i. Offic.r Kurt.. We oal1
Offioer Kurt. at thi. ti.e.
Whereupon,
JI"RIY DALI KURTZ
h.ving been duly .worn, te.tified .. follow..
DIRICT IXAMINATION
BY HR. HAICKLII.
Q Offic.r Kurt., would you pl.... .tet. your
full name for the reoord .nd .pell your la.t name.
A Offioer Jeffrey D.le Kurt., K-u-r-t-I.
Q By whom .r. you employed?
A By the upper Allen Town.hip 'olioe
D.partment.
Q How long have you b.en employed ther.?
A Two year..
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1 Q We~e you on duty on Deoembe~ 11th, 1..3?
2 A Y.., I wa..
3 Q Po you reoall what .hift you were working?
4 A I wa. working a .peoial a.lignment .hilt for
5 th. Cumberland County PUI Department.
, 0 What were you doing on that evening?
7 A I wa. wo~king from 2200 at night on ,riday,
8 the 17th, until 0300 in the mo~ning of Saturday, the 18th of
, peoember. I wa. a..igned a. a roving patrol for a DUX
10 oheokpoint that wa. in the 21 -- oorreotion, yeah, the 2100
11 blook of South Market St~eet -- oorreotion, the 1200 bloak
12 of South Market Street.
13 0 Did you have re..on to inv..tigate a DUI on
14 that evening?
15 A Ye., I did.
16 0 And did it involve Mr. Molinaro?
17 A Ye., it did.
18 0 Would you briefly tell u. how you beoame
l' aware of the .ituation?
20 A Ye., I will. Approximately 2118 in the
21 morning, I had ob.erved a green Honda Aooo~d ledan traveling
22 north on South Market Street. About that ._e time, I
23 reoeived notifioation over the radio that that vehiole had
24 ju.t failed to .top for a cheokpoint. I then began to
25 pur.ue after the vehiole. We entered the Borough of
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1 Meohanio.burg, and a t~affio .top w.. finally initiat.d on
3 the vehiole in the fir.t blook of We.t Stouff.~ Alley.
3 Q What i. the di.tano. b.tw..n wh.n you .tarted
. to pur.u. the vehiol. .nd wh.n you finally got it .topp.d?
5 MR. O.OI1ILIO. Ixou,.e me a minute, Your
, Honor. N.y I .nter an obj.otion? I'd like to a.k, will you
7 introduo. the offioer who h.. .t.ted h. ..w the v.hiole?
8 Oth.rwi.., I'd h.v. to impo.. a h..r..y objeotion, b.o.u..
, he ha. giv.n t..tiDQny for the truth of .om.thing th.t
10 ooourr.d for whioh he do.. not have p.r.onal knowledge. So,
11 if you're going to
13 MR. HAICItLIR. Wh.t a~e you r.hrdng to?
13 MR. OeOI1ILIO. W.ll, h.'. ..ying that -- the
14 .t.t.m.nt, Your Honor, th.t the offio.r made h that a green
15 automobile p....d th~ou;h . oheokpointl .0 th.t thi.
l' .tat.m.nt impli.. that, on., the oheokpoint w.. leg.lly
17 v.lid, in oomplianoe with the P.nnoOT r.gulation., and --
18 THI COURT I Oh, I don't think it me.n. th.t
l' at all. H. didn't .ay th.t. H. ju.t ..id it p....d through
30 a oh.okpoint.
31 MR. O.GI1ILIO. I know, Your Honor, but .ven
33 that i. a hear..y .t.tement if off.r.d for the truth that he
33 did p... through the oh.okpoint. 'or th.t ~e..on, I'd ju.t
24 a.k the Oi.triot Atto~n.y -- if h.'. goin; to h.v. the
25 polioe offio.~ t..tify, I'll withd~.w my obj.otion. If h.'.
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1 not going to have the polioe offioer te.tify, well, then, I
2 mu.t pre.. the ob~eotion for the benefit of my olient.
3 THI COURT. Hr. Haeokler?
4 MR. HAICKLI.. You~ Honor, thi. i. part of
5 the evidenoe th.t goe. to the .tate of mind of the offioer,
1 whether thi. motori.t wa. driving under the influenoe of
7 aloohol.
8 THI COURT. Do you have the offioer h.re that
, .aw the oa~ go through the oheokpoint?
10 HR. KAICKLI.1 No, Your Honor, but b.oau.. it
11 go.. to the offio.r'. .tat. of mind, it'. admi..ible
12 evidenoe.
13 THI COURT. Well, I won't oon.ider it for the
14 truth of the .tat..ent a. to wheth.r he, in faot, went
15 through the oheokpoint.
11 HR. DeGUILIOI But, Your Honor --
17 THI COURT. The objeotion i. .u.tained. 00
18 ahead, Mr, Haeokler. That portion of the te.timony i.
l' .trioken.
20 MR. KAICKLII. Your Honor, for that, we would
21 ju.t like to oita the oa.. of Commonwealth v. 'atter.on,
22 noting that evidenoe that goe. to the .tate of mind of the
23 offioer i. admi..ible for that pu~po.e if it goe. to the
24 offioer'. rea.onable ground. to believe that the motori.t
25 wa. DUX, not for the truth that it, in faot, happened, but
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ju.t for the purpo.e of evideno. whioh he oould oon.ider in
det.rmining whether thi. motori.t w.. driving under th.
influenoe of .loohol. C.rt.inly, if he wa. told th.t
.omeone drove through a oh.okpoint, th.t would be .videnoe
th.t he oould oon.ider in determining wheth.r thi. per.on
wa., in f.ot, driving und.r the influ.noe of .loohol, the
intent to .void the oh.okpoint.
THI COURT. Wh.t i. the oite for '.tt.r.on?
HR. HAICKLI.. 138 Pa. Commw. Ct. 2'2, 587
A.2d 8'7. It'.. 1991 0....
THI COURT. W.'ll t.k. . .hort r.oe.., .nd
I'll look .t thet 0....
(Wh.reupon, a brief r.o... wa. taken.)
THI COURT. W.'ll l.t the reoord indioate
th.t the Court h.. met in ohamb.r. with ooun..l and h..
r.vi.wed the o..e of Commonw..lth v. p.tter.on oit.d by Mr.
H..okler. On the ba.i. of that r.view and the oonf.r.nce in
ohamb.r., the Court i. in .gr.em.nt with Mr. H.eokl.r that,
for a limit.d purpo.e, the information whioh the offioer
r.oeived from .nother offio.r i. .dmi..ible. Th.t limited
purpo.e i. to .how what h. kn.w at the time h. oomm.noed
pur.uit of the D.fendant -- .trik. that, of the Petitioner
in thi. 0.... The t..timony a. to what h. h.ard from
enother offio.r will not b. oon.ider.d by the Court for tb.
truth of tho.. out-of-oourt deolar.tion..
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1 I. that .ati.factory to both ooun.e17
2 HI. DeOUILIQI It i., Your Honor.
3 HI. HAICKLI.. Ye., Your Honor.
4 THI COURT I Thank you.
5 BY HI. HAlCKLIRI
. Q How long from the time you pulled out and
7 .tarted oha.ing the motori.t -- how far wa. the di.tanoe
e between when you .tarted to oha.e the motori.t and when you
, pulled him over?
10 A I wa. able to -- by the time I wa. two blook.
11 behind the vehiole, ju.t e. I entered the Borough of
12 Meohan10.burg, I e.t1mate the di.tanoe to be olo.e to three
13 tenth. of a mile, at whioh time I wa. behind the vehiole
14 with my emergenoy light. aotivated. I'd .ay briefly over a
15 tenth of a mile wa. the total di.tanoe that my .iren wa.
1. aotivated, al.o.
17 Q What happened whe" you pulled him over?
18 A When the vehiole wa. .topped, a. I wa. .till
l' advi.ing my di.patoher of the vehiole regi.tration and my
20 looation, the driver of the vehicle, who i. .eated to the
21 right of hi. ooun.el, .tepped out of the vehiole and began
22 to walk baok t~ward. my oar. I advi.ed him over the 'A
23 .y.tem to remain with hi. vehiole, at whioh time he went
24 baok and had a .eat in. ide hi. vehiole.
2S A. I approaohed the vehiole end began to
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1 .paak to him, I oould deteQt the odor of an alooholio
2 beverage about hi. breath and al.o notioed that he had
3 gla..y eye.. I briefly interaQted with the Def.ndant. I
4 a.ked him if he would perform .ome .obriety te.t.. After
5 having him exit hi. vehiol., I notioed that he had a .light
1 weave about him a. h. walked and a. he would .tand .till.
7 He .tated that he wo~ld not perform any te.t. under tho.e
. oondition..
, Q What oondition. were thay?
10 A He had made r.fereno. to the faot that I had
11 .topped him for no r.a.on, that he had went pa.t a what
12 he had .tated wa. an aooident. He .aw polioe oar. and
13 light., but he had .tated no one had tried to .top him. He
14 .aw no one in the area. After .peaking to him a f.w more
15 minute. and a.king him a ..oond time if he would perform
11 .ome .obriety te.t., at whioh time he again .tated that he
17 would not, I plaoed him in handQuff. to tran.port him baok
1. to the oheokpoint looation in the rear .eat of my vehiole.
l' Q What phy.ioal menife.tation. of being under
20 the influence did he manif..t?
21 A Again, the odor of an alooholio beverage wa.
22 detuoted about hi. breath. I notioed a .light weave a. he
23 would walk and a. he would .tand. I al.o notioed that he
24 had gla..y eye..
25 Q What happened when you tran.ported him baok to
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the oheokpoint?
A Upon arrival baok at the oheokpoint, he wa.
removed from the rear .eat of my vehiole into an awaiting
ambulanoe that we had at the oheokpoint looation. The
ambulanoe wa. the~e for the purpo.e of drawing blood
direotly at the .o.ne of the oheokpoint. H. wa. plaoe4
in. ide the ambulanoe. I a4vi..d him that h. wa. under
arre.t for driving un4er the influenoe of aloohol or a
oontroll.d .ub.tano.. I a.ked him if he would allow a blood
...ple to be 4rawn. He .tated, I refu.e, or .omething to
that effe~t. I then advi.ed him of the Implie4 Con..nt Law
of the '.nn.ylvania V.hiole Code, 1547. He again .tated
that he refu..4.
Q When you .ay you informed him of the implied
oon.ent, did you read him anything?
A Ye., I did. I oarry a oard with m. at all
tim.. in my uniform, It ha. the .eotion that applie. to the
Vehiole Code.
Q Would you read what you read to him?
THI COURT. Wou14 you read it .lowly for the
. tanographer.
A What'. that?
THI COURT. You'll have to read it .lowly for
the .tenograph.r.
A Y.., Your Honor. (leading). Any per.on who
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d~ive., operate. or i. in aotual phy.ioal oontrol of the
movemant of a motor vehiole in thi. Commonwealth ha. given
oon.ent to one or more oh..ioal te.t. fQr the purpo.e of
determining a blood aloohol oontent. The oon.tit~tional
right. you have a. a oriminal defendant, oommonly known a.
the Miranda right., inoluding the right to .peak with a
lawyer and the right to remain .ilent, apply only to
oriminal pro.ecution. and do not apply to ohemioal te.ting
prooedure under the Pa.'. Implied Con.ent Law, whioh i. a
oivil, not a oriminal, prooeeding.
You have no right to .peak to a lawyer or
anyone el.e before taking the ohemioal te.t, nor do you have
the right to remain .ilent when a.ked to .ubmit to the
ohemical te.t, Unle.. you agree to .ubmit to the ohemioal
te.t, your oonduot will be deemed to be a refu.al, and your
operating privilege will be .u.pended for one year. Your
refu.al to .ubmit to the ohemioal te.ting under the Implied
Con.ent Law may be introduoed into evidenoe in a oriminal
pro.ecution for driving under the influenoe of alcohol or a
oontrolled .ub.tanoe.
BY HR. HAICILIII
Q Did you read him anything el.e?
A After he had .tated that he had refu.ed and I
had read that oard to him, I then read the .heet that we
.ubmit to 'ennDOT for a refu.al. The .heet'. laying back
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1 tb.r. on tb. d..k. Aft.~ I had r.ad him that .b..t, be bad
2 .tated tbat h. had refu..d, .gain. I tben a.k.d him to
3 .ign, .nd be r.fu..d to .ign the .be.t, a. well.
4 MR. HAlCItLI.1 M.y I .pproaoh tb. witn...,
5 Your Honor?
IS THI COQRT. c.rtainly. Do you want to mark
7 tbat.. an exhib1t?
. MR. HAICltLlI. I'm ju.t going to have bim
9 read it into the .videno..
:/.0 THI COURT. Th. whole .beet?
11 MR. HAICltLlR. No, ju.t what h. ~.ad to tbe
12 motorbt.
13 BY MR. HAlCltLIR.
14 Q Would you pl.... re.d into the reoord what
15 you r.ad to th. motori.t on that .vening?
16 A Ye., I will. The ..otion I r.ad to him
17 .tate... follow. (r.ading). Pl.... be adv1.ed you are noW
18 und.r arr..t fo~ driving und.r th. influ.noe of aloohol or a
19 oontrol1ed .ub.tanoe pur.u.nt to I.otion 3731 of tb. Vehiol.
20 Code. I am r.que.ting tbat you .ubmit to the ohamio.l te.t
21 of blood. It i. my duty a. a polio. offioer to inform you
22 tb.t if you r.fu.. to .ubmit to oh.mioal te.t., your driving
23 privil.g. will b. .u.pended for a period of one year.
24 A. a polioe offio.r, it 11 my duty to .xplain
25 to you that the oonltitutional right. due you in a oriminal
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1 pro.eoutiqn a. .et forth in the Mir.nda deoi.ion do not
2 apply to the chemioal te.ting under the Implied Con.ent L.w.
) 'peoifio.lly, you do not have a right to oon.ult with.
4 l.wyer or anyone el.. prior to taking the ohemioal te.t, nor
5 do you have the right to remain .ilent when a polioe offioer
. a.k. you to .ubmit to the chemioal te.t. Your oontinued
7 r.que.t to .peak with . lawyer or .nyone el.e .fter thi.
8 .xplan.tion i. given or your .ilenoe when a.ked to .ubmit to
, the ohemio.l te.t will be con.idered a. . refu.al of the
10 oh..ioal te.t .ubjeoting you to the .u.pen.ion of your
11 driving privil.ge.
12 Q What happened after you a.ked him to -- or
1) after you read th.t form to him?
14 A He ag.in .t.ted th.t he wa. refu.ing, at
3.5 which time I a.ked him if he would .ign the form, .nd he
1. refu..d to .ign the form, a. well.
17 Q Whvn you .ay h. refu..d, how did he manife.t
18 hi. refu..l to t.ke the te.t?
l' A To take the te.t? He would ju.t .t.te th.t
20 he would r.fu.e.
21 MR. HA.CKLIR. Nothing furth.r.
22 TH. COURT. Cro....x..in.tion.
2) CR088-.XAMINATION
24 IY HI. DeOUILIOI
25 Q Offioer, you te.tified e.rlier, .nd the
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ooun.el for the Commonwealth ..ked you, no lioen.e pl.te of
the vehiole w.. ever r.oeived by you, w.. it?
A No, there wa. not.
THI COURT. I'. .orry, I didn't hear th.t.
No lioen.. plate wa. r.oeived?
MR. DeQUILIO. Lio.n.. plate number. I'll
..k the que.tion again to olarify it for the reoord.
ay HI. DeQUILIOI
Q You never r.o.iv.d the lioen.. plat. number
of the vehiol. Mr. Molinaro wa. driving, did you?
A No, I did not.
Q You nev.r .aw Mr. Molinaro drive through any
....rt.d .obri.ty oheokpoint?
A No, I did not.
Q Now, wh.n you follow.d Mr. Molinaro, w..n't
th.r. a o.r b.tween your oar and Mr. Molin.ro'. o.r?
A A vehiol. pull.d out fro. the int.r.eotion of
Keller and M.rket Itr.et, at whioh time I aotivated my
.iren. My ..ergency light. w.re alr.ady aotiv.t.d. upon
...ing that, the v.hiol. had no .ooner pull.d out onto louth
M.rket Str.et than it'did pUllover onto the .ide of the
road. At no time did I have -- or .t no ti.. did I 10..
.ight of the vehiole whioh I wa. following.
Q Th. ti.e wa. 2.00 in the morning, wa. it not?
A Shortly .ft.r 2.00, Y...
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o And dark ou~?
A Maohanio.burg ha. .treetlight., Your Honor --
or Coun.el.
o Can we .tate for tha reoord that it wa.
4ark -- I mean it wa. nighttima? Let'. .ay it that way. It
w.. nighttime?
A It wa. nighttime.
o Ye.. You oould .ay that it wa. dark except
for the .treetlight.?
AYe..
o Now, you're familiar, ara you not, with the
guideline. that .et up .obriety oheokpoint.?
A I am .omewhat familiar with th...
o Do you have any written authority on you, or
doe. your partner have any written authority a.tabli.hing
the right to .et up a oheokpoint there?
A ..tabli.hing the right? I have no knowledge
of that, .ir. Tho.e arrangement. would be handled by the
DUI ooordinator who i. ..ployed by the oounty.
o That'. right. And they .tate that you DlU.t
.how, .tati.tioally, a number of a .tati.tioal number of
aooident. that oocur in the area or a .tati.tioal numbar of
DUI arr..t. iu the area for authority to .et thi. up, i.
that right?
A Again, .i~, I have no knowledge of that, and
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1 tho.e range. would have been handled by the nUl ooordinator.
a Q You have no knowledge of any of tho.e, do
J you?
, 4 A I know, a. thllt being my ::jud.diotion, that
5 we do have aooident. in that area and that we have mad.
S arre.t. from that looation.
7 Q But you do not have the .tathtioal ba.h
8 under the federal guideline., do you?
, A Again, eir, that would be handled by the nUl
10 ooordinator.
11 Q Nor do you have any information a. to
12 PennDOT'. guideline. on that, do you?
13 A Again, that would b. handled by the nUl
14 ooordinator, .ir.
15 0 ;.then you oon.tantly ..y it would be handled
lS by the nUl ooordinator, oan you .tate for the reoord that
17 you have no knowledge whether on. wa. ..nt out or not?
18 I.n't that true?
19 A One what wa. ..nt out?
20 0 Authority to .et up a .obriety oheokpoint.
21 You have no knowledg.?
22 A That'. oorreot, .ir.
23 0 You al.o are awar. that under the PennDOT
24 guidelin.. that they have regulation. a. to .i.e and
25 di.tano. for guidelin.. to b. .- for the .obriety cheokpoint
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1 to be .et up, don't you? You know that, don't you?
a A No, I do not, .ir.
3 0 You do not know that. Now, on direot
4 .xamination, I think I i. it your te.timony that you read
5 from the oard you have in your pooket fir.t to Mr. Molinaro?
. A That i. oo~~.ot.
7 0 Wh.re did that ooour?
. A That ooou~~.d while in.id. the ambulanoe.
, 0 Did anyone witn... you do that oth.r than Mr.
10 Molinaro?
11 A Th.re were ..v.ral oth.r p.opl. in. ide the
13 ambulano., a. w.ll.
13 0 I. th.re any polio. offio.r pr...nt in the
14 oourtroom who witn....d you?
15 AYe., there i..
1. 0 And what'. hi. nam.?
17 A Offio.r 'et.r Beauduy.
18 0 Now, you th.n w.nt through the .ntire, I
11 think, r.ading from the oard that you --
30 A Ye., I r.ad the --
21 0 -- took out of YQur wallet, right?
22 A That'. co~reot.
23 0 I. it al.o your te.timony that you read from
24 what the Commonwealth'. attorney .how.d you, that you al.o
25 r.ad from thi. partioular oh.mioal t..ting ..otion, 15477
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A That i. oorreot. I rea4 Line. 1, 2, 3 and 4
to bi..
o '0, you r.ad it to hi. twioe, not onoe but
twioe'
A That'. oorreot, .ir.
o You never gave hi. another opportunity to
take the te.t, did you, .fter reading the fo~'
A After reading that form and a.king hi. to
.ign, whioh he refu.ed, I did not.
o Doe.n't it .tate on your .tate.ent,
(re.ding). Offioer note, the ~efu.al to .ign thi. form i.
not a ~efu.al to .ub.it to the oh..ioal te.t. You .u.t
.till give the motori.t an opportunity to te.t after
reviewing thi. form.
It .tate. that, doe. it not?
A That'. oorreot, it doe..
o You te.tified, if I reoall oo~reotly, that
you did not give hi. that oppo~tunity?
A That'. oorreot.
o I.n't it al.o t~ue, Offioer, that where you
.topped Mr. Molinaro, Mr. Molinaro had arrive. at hi. hqme'
I.n't that true?
A He wa. .till in the alleyway behind hi. home.
However, at the ti.. of the .top, that knowledge wa. not
known to .e.
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1 0 He told you that, didn' the?
:I A Sir, a lot of people teU lie that they're
3 hOlle. Whether or not they are, I have no way of knowing.
4 0 I'll try to uke IIY"U olear. Mr. Molinaro
5 told you that that wa. hi. hOlle'
1 A Again, .ir, .everal people have told that to
7 lie, and I have no knowledge of that.
. Q On the partioular evening in que.tion when
, you .topped Mr. Molinaro, he told you that wa. hi. hOlle'
10 A That i. oornot.
11 <) Thank YOl\. And he ..ked you for the
1:1 permi..ion to go in. ide and talk to hi. wife beoau.e bi.
13 in-law. were there, i.n't that true?
14 A No, that h not.
15 a Didn't you tell Mr. Molinaro when you .topped
11 hill that he would lo.e hi. lioen.e for thirty day. if he did
17 not .ubllit to your te.ting that you required of hill?
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24 A That i. oorreot. I advi.ed hill he wa. under
25 arre.t within five lIinute..
A No, I diet not.
a You never told hill that?
A No, I did not.
a Did you .tate for the reoord here that you
plaoed Mr. Moli~aro in ouff. without telling him that he wa.
plaoed under anut?
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1 0 You advieed hill that you wen placing hill
a under arre.t afte~ you had taken hill baak to where the
3 &llbulanoe. were, that'. when you told hill he wa. under
. arre.t, i.n't that true?
5 A That h oorreot, dr.
S 0 Now, let lie a.k you thi. que.tion. Do you
7 rellellber appearing at the -- at a p~elillinary hearing when I
1 a.ked you .olle que.tion.?
, A Ye., I do.
10 0 I.n' t it a faot that at that preUllinary
11 hearing you te.tified that you neve~ told Mr. Molinaro you
la plaoed hill under arre.t?
13 A I had plaoed hill under arre.t at the
14 oheokpoint .ite, and I did te.tify to that in IIY direot
15 examination, if IIY lIellO~y .e~ve. lie oorreot.
lS 0 Now, did I a.k you there if you had given hill
17 any Miranda warning., and you told lie you did not? You
11 rellember that, don't you?
l' A That h oorreot.
a 0 0 You neve~ gave hill eny Miranda warning.,
21 right?
aa A That'. oorreot.
a3 0 And in oonjunotion with that, you .tated that
a4 you never plaoed hill under arre.t and that wa. the rea.on
a5 you didn't have to give hill the Mi~anda wa~ning', i.n't that
ao
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1 what you te.tified to?
2 A I don't rem.aber my exaot word., .ir.
J Q Iven though you don't ~..ember your exaot
4 word., wa. that the oontent of what you .aid?
5 A Sir, I advi.ed you that he wa. plaoed under
~ arre.t at . later time. If memory .erve. me oorreot, I wa.
7 not a.king him any queation.. That wa. the rea.on I did not
8 a.k him or advi.e him of hi. Miranda right..
, Q Now, you .tated, if I reoall, when the
10 Commonwealth'. attorney a.ked you .ome que.tion. a. to
11 objeotive oriteria of plaoing him under arre.t or beliaving
12 that he wa. -. I .trike that .- believing that he wa. under
13 the influenoe of aloohol, you .aid, if I reoall oorreotly,
14 that he had .lurred .peeoh, gla..y eye. and an odor of
15 aloohol?
1~ A I don't remember .aying .lurred .pe.oh today,
17 .ir. I remember gla..y ey.., the odor of an alooholio
18 beverage and a alight weave a. he would .tand .till and
19 walk.
20 Q Let me a.k you what .peoifio aloohol you
21 .melled on hi. br.ath?
22 A I have no i4ea, .ir. It wa. the odor of an
23 alooholio beverage.
24 Q When you ..y the .odor of an alooholio
25 bev.rage. and I have to pre.. thi., Your Honor, and J
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1 hop. YOU'll allow me.
3 BY MI. DeGUILIO.
"
THI COURT. There'. b.en no obj.otion.
.
5 beverage you .mell.d?
o
Will you pl.... tell me whioh alooholio
A
I believe thi. que.tion wa. a.ked at the
7 preliminary hearing, .ir. I don't know whioh alooholio
. b.verage I .melled, It w.. the odor of an alooholio
, b.verage about hi. breath.
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o Now, with ref.reno. to hi. .tate of mind a.
to oonfu.ion about your direotion. . '. now, we're here today
12 on what i. oal1ed an app.al from an order of the
13 Commonwealth to .u.p.nd hi. lioen.. for one year, right?
14
15
A
That'. oorreot.
1. .ide, probably, a criminal oomplaint for DUI driving, right?
17 I. that oorreot?
18
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19 ye..
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o
And then he mu.t al.o faoe, on the criminal
A
The orimin.l oomplaint wa. already filed,
o
A
o
You filed the oriminal oomplaint your.elf?
That'. oorreot.
Did you explain to him the oon.equenoe. of
24
23 tho.e two prooeeding.?
A
Ixpl.ined to him the oon.equenoe. of refu.ing
2S the te.t, that hi. operating priVilege would be .u.pended
r
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1 for a period of on. y..r.
2 Q Did you t.l1 him that hi. r.fu.a1 oould be
3 u..d in a oriminal pro.eoution .gain.t him'
. A It wa. .dvi..d on both thi. form h.r., a.
S w.ll.. the o.rd that I had r.ad him, that it oould b.
. introduo.d into .vid.noe in a oriminal pro..oution for
7 driving under the influenoe of .loohol or a oontroll.d
It .ub.tano..
9 Q It oould b. introduo.d again.t him?
10 A Th.t'. oorreot.
11 Q Then did you think it proper at that time to
12 .dvi.. him of hi. Mir.nd. right.?
13 A No, I did not.
14 Q Now, did h. exhibit .ny oonfu.ion, obj.otiv.
15 oonfu.ion, wh.n you att.mpted to expl.in to him that he had
1. a orimin.l pro..oution pending and a oivil pro.eoution for a
17 .u.p.n.ion of hi. op.r.ting privileg.. for on. year? Did
11 you .xpl.in th.t to him?
19 A Could you rep.at the que.tion, pl.....
20 HR. D.QUILIO. Would you read it baok,
21 pl.....
22 THI COURT. No, no. You rep.at it. I'll
23 in.truot the .t.nograph.r wh.n to r.ad thing. baok.
24 NIt. D.QUILIO. I'm .orry.
25 THI COURT. 00 .he.d. You..k the que.tion
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IY HI. D.OUILIO.
o Now, i. it not . faot th.t he will 10.. hi.
lio.n.. for thirteen month. and not tw.lv.?
A
8ir, it .ay. on. y.ar.
lut on the oriminal .ide, if h. 10'.., h.'ll
o
7 10.. it there for thirty d.y., won't h.? You know th.t to
. b.. faot, don't you?
A
lir, th.r.'. num.rou. d.al. work.d out. I am
not familiar with the partiou'.at. of all of them.
o
80 that h. fao.. . thirt..n-month .u.pen.ion,
12 i. that oorr.ot?
13
14
A
Sir, I know h. faoe. .u.p.n.ion for on. y..r
for refu.ing hi.
for r.fu.ing to .ubmit to the t..t.
1&
15 What.ver el.. i. don., I h.v. no knowl.dg. of.
17 ju.t on. mom.nt?
MR. D.GUILIO. Will Your Honor .xou.. m. for
1.
19
TNI COURT. C.rt.inly.
MR. DeGUILIO. Will Your Honor give m. on.
20 minut., pl...., to look through thi. tran.oript?
,,'
21
22
23
THI COURT. Certainly.
(Bri.f p.u...)
MR. D.OUILIO. Thank Your Honor for hi.
25
24 p.ti.noe. I n..d .noth.r f.w minute..
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THI COURT. W.'ll taka . fiv.-minute. r.c....
24
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MI. DeOUILIO. Thank you, Your Honor.
(Whereupon, a brief ~.oe.. wa. taken.)
IY HI. DeOUILIOI
o Offioer, at the time you .topped Molinaro
wben he pulled into the alleyway where he live. near the
.tar Lumber Company -. i. it the Itar Lumber Company that'.
there?
A It'. a hardware .tore. I believe it'. a
Servi.tar.
o Servi.tar?
A Servi.tar or True Value. It'. one or the
other.
o Now, you were .topped there, and you oalled
other polioe offioer., and you .tayed in the alley for
approximately thirty minute., didn't you?
A Approximately thirty minute.?
o um-hum.
A I don't believe .0, .ir. I did oall for
other offioer.. The traffio .top wa. at 211', and at 2.40,
I tran.ported him .. began to tran.port him baok to the
oheokpoint location. That'. approximately twenty minute..
o Twenty minute. you .tayed in the alley?
A That'. oorreot.
o And h. wa. in handouff.?
A No, he w.. not in handouff.. He we. in
25
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1 bandouff. approxiDltaly nine .inute..
2
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A
Nina minute.?
While we Dlde arrange.ant. to have hi. oar
. parked.
5
o
I.n't the rea.on that you wera there in the
& alleyway talking to tha othar polioa offioer. that you were
7 not .ure you .topped the right man?
8
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o
A
No, it i. not, .ir.
You didn't have a lioen.e plate number?
I had a da.oription of th. oar, .ir, and
11 there wa. no othar traffic on the roadway at that ti.e.
12
o
Wa.n't thare a oar direotly behind Mr.
13 MoUnaro?
u
A
That wa. in tha Borough of Maohanio.burg.
15 Thera wa. no other vehiole that prooaedad pa.t .Y looation
1& bafore I reoeivad tha oall.
17
o
Can you axplain to the Court and .e and your
18 attornay why you .earohed hi. vehiole, why you .earohed Mr.
19 Molinaro" vehiole?
20
A
I .melled the odor of an alooholio beverage
21 while .eouring hi. vehiole. I began to look through it
22 for--
23
2.
o
A
What?
Other alooholio baverage. that may have been
25 opaned in. ide the oar.
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o II that why you wlnt into the glove
oOlllPal'talnt'l
A I did not go in~o the glove oompartaent.
o Wher. did you ..aroh the vlhiole?
A I .earohed und.rneath both .eata and along
the oon.ole of the oar.
MR. DeOUILIO. I have no other que.t!on.,
Your Honor, Thank you.
THI COURT. Mr. H.eokler?
MR. HAICKLIR. Very briefly.
alDIalCT llAMINATION
BY HI. HAICKLla I .
o At the traffio .top, you .ub.lqulntly
tran.ported him baak to the roadblook -- or, I'm .orry, tbe
DUI oheokpoint, i. that correot?
A That i. oorrect.
o Did you drive him baak?
A Y.., I did.
o Did you handouff him before you drove him
baok?
A Y... He wa. handouffed b.for. he wa. plaoed
in the rear .eat of my vehiole.
Q After he wa. read the Department'. form, the
DL-2' form, after that form wa. read to him, did h. at any
time agree to tate the oh..ioal te.t?
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No, he dl.d nol:o
HI. HAICK~IR. Thank you. Nothing .1...
HR. DeQUILIO. Your Honor, I move to .trike.
4 He wa. never a.ked .- h. wa. nave~ a.ked to take it
5 afterward., and the ooun.el for the Commonwealth i. trying
6 tQ imply that the qu..tion wa. a.ked on diraot examination.
7 The offioer .tated, aooording to the rule., that he mu.t,
8 neverthele.., a.k him to take it. Now what he'. trying to
, do i. trying to put the burden on my olient. I move that
10 tha te.timony be .triokan.
11
MR. HAICKLIR. I'm not trying to imply
12 anything, Your Honor. All I'm a.king i. whethar he did, in
13 faot, agree to taka the ta.t after the form wa. read to him.
14 I'm not implying that he wa. reque.ted. I believe ooun.al
15 a.kad him whather he a.ked him to take the te.t after he
16 read the form. I'm ju.t a.king whether, in faot, he agreed
17 to take the ta.t.
18
THI COURT. Okay. The objeotion i.
19 overruled.
20
21
Mk. HAICKLIR. I have nothing further.
THI COURT. I ju.t have a oouple of
22 qu..tion..
23 BY THI COURT.
24
You were detailed to the area, I take it',of
Q
25 thi. oheokpoint?
28
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(-,
A
Q
through it?
A
it.
Q
A
2'
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1 on the o~her .ide of the oheokpoint.
2 0 Did you .ee hi. vehiole a. it approaohed the
:I oheokpoint?
.. A No, I did not.
5 0 Did you .e. hi. vehiole a. it left the
. oheokpoint?
7 A I .aw the vehiole ju.t prior to it going pa.t
. my looation.
, 0 Where, again, wa. your looation in relation
10 to the oheokpoint?
11 A It wa. approximately a tenth of a mile.
12 0 A tenth of a mile where?
13 A It would be we.t or on the north .ide, toward
14 Meohanio.burg Borough. I wa. pulled off on the northbound
15 .ide of roadway, baak in a road to a farm.
1. 0 Ipeoifioally, what tran.mi..ion did you
17 reo.ive?
18 A It wa. a very broken tran.mi..ion. However,
l' I reoeived that a green Honda Aooord had ~u.t went through
20 the roadblook and wa. traveling in the northbound lane and
21 it .hould be approaohing my looation.
22 0 How long after that tranlmi..ion did you .~e
23 a vehiole matohing that de.oription?
24 A The vehiole had ju.t went pa.t my 100ation,
25 Your Honor. It wa. a matter of no more than a few .eoond.
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that th. tran..i..ion wa. mad..
o Th.n did you have it in .ight at all ti...
until you .topp.d it?
A That i. oorreot, I did.
o Were there any other vehiol.. that p....d y~u
after you reoeived the tran..i..ion?
A There w.re no other v.hiole. that pa~..d .e
after, And the only vehiole. that had b.en in my ar.a w.re
ooming out of the Borough of Meohanio.burg at that time. I
would .ay no vehiole. had gone out of that
or were on the
northbound .ide for at lea.t two to thr.. minut.. before the
tran.mi..ion wa. r.oeived.
o Can you de.orib. the oheokpoint that wa. in
operation?
A It wa. looat.d on South Market Itr..t or
Itat. Rout. 114. It wa. betwe.n the inter.eotion of Juniper
Driv. and the 'enn.ylvania Turnpike overpa.., directly in
front of the Book-Of-The-Month Club. Ther. wa. a polioe oar
on both end. of the oheokpoint. Th.re wa. a DUI ven 100at.d
in the oenter. All of tho.e vehiol.. had th.ir ..erg.noy
light. aotivated, a. well a. the van. There w.re numerou.
barrioade. plao.d in the center of the road, the ...11
folding kind. Th.re wa. a -- I believ. the .ign .tat.d, b.
prepar.d to .top, DUI cheokpoint ahead, .om.thing .imilar to
that.
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1 'urth.r on up, there wa. a .top .ign, a
2 po~table etop .ign that wa. plaoed, again, in the middle of
J the road on the double yellow line.. Thi. area wa. lit by,
4 I believe, two or three portable ..ergenoy light. that you
5 would .ee fire department. .et up. They were looated on
I both .ide. of the DUI van in the area wh.re the vehiole.
7 would be .topped.
. 0 How long of a di.tanoe did you pureue the oar
, you were fo~lowing before it .topped?
10 A It wa. approximately three tenth. of a mile,
11 You~ Honor. A. we entered the Borough of Meohanio.burg, we
12 oontinued in the northbound lane of South Market Street.
13 Juet prior to Main Itrftet in the Borough of Meohanic.burg,
14 the vehiole made a left turn into We.t Stouffer Alley.
15 Q And .topped?
11 A That'. oorreot. It .topped ju.t behind or
17 be~ore the -. there'. a bu.ine.. there. There'. a bu.ine..
1. parking lot that rune from Main Itreet to the alley.
19 0 And you wen in unUOI"lll?
20 A Yee, I wa., Your Honor.
21 Q And your oar wa. a marked oar or unmarked?
22 A It wa. a fully marked police oar.
23 Q When did you put your light. on?
24 A A. I entered into the Borough of
25 Meoha"io.burg, and that would have been .hortly over a tenth
32
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1 of a aile from the looation that I wa. .itting in.
2 0 And did you u.e your .iren?
3 A I u.ed ~y .iren wh.n the vehiole m.rged or
4 entered the roadway from the left-hand .ide, from Keller
5 Itreet. I aotivated my .iren from there and the re.t of the
. way through until the vehiole wa. .topped.
7 THI COURT. Any further que.tion. by ooun.el
8 a. a re.ult of tho.e que.tion.?
, MR. HAIClLIR. None, Your Honor.
10 MR. DeOUILIO. I do have one, Your Honor.
11 THI COURT. Sure.
12 RICR081-IXANINATION
13 BY KI. DeOUILIO.
14 0 Are you .aying that you only followed Mr.
15 Molinaro for three tenth. of a mile?
1. A Ih~rtly a di.tanoe over three tenth. of a
17 mile, approximately.
18 MR. DeOUILIO. I a.k Your Honor to take
l' jUdioial notioe of the area.
20 THI COURT. I oan't take judioial notioe of
21 an area. You'll have to put .ome te.tiaony in if you want
22 the area explained.
23 BY KI. DeOUILIO.
24 0 'rom the overpa.. on the turnpike to
25 Meohanio.burg, you .ay it'. three tenth. of a mile?
33
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1 A No. That wa. after I had entered bhe lo~ough
2 of Meohanio.burg until the vehiole wa. .toppe4.
3 0 Oh, aft.r you entered into it. 10, that'.
4 threa tenth. of a mile after you entered Meohanio.burg?
5 A That 18 oorrect.
, 0 So, therefore, at the oheokpoint -. now, do
7 you know the di.tanoe from the oheckpoint to the Borough of
8 Meohanio.burg?
, A I would .ay approximately three tenth. of a
10 mile. I'm not really certain.
11 0 So, than, it'. at lea.t .ix tanth. of a mile,
12 aooording to your te.timony?
13 A rrQm the looation of the oheokpoint ~~til the
14 vehiole wa. .topped?
15 0 y...
l' A It would ba about .ix tenth. of a mile, to
17 the be.t of my knowledge.
18 MR. DeGUILIO. Thank you, Your Honor.
19 THI COURT. Mr. Huokhr?
20 MR. HAICKLIRI Nothing further.
21 THI COURT. You may .tap down. Thank you,
22 dr.
23 MR. HAICKLIRI The Department call. Offioer
24 .eauduy.
25
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~ Wh.r.upon,
2 'ITI. J. .IAUDUY
3 h.ving been duly .worn, t..tUhd a. follow..
4 DI.ICT llAMINATION
5 'Y MR. HAICKLI.I
. Q Offio.r B..uduy, will you pl.... .tat. your
7 full n... for the r.oord .nd .pell your la.t n....
8 A ,.trolman ,.ter J. Be.uduy, B....-u.d-u-y.
J Q By whom '1'8 you elllploy.d?
10 A upper Allen Town.hip 'olioe Department.
11 Q How long h.v. you b.en .0 employ.d?
12 It. rour y.an.
13 Q Wer. you on duty on Deo.mber 18th, 1"3?
14 A Ye., I w...
15 Q Do YQU reo.ll wh.t .bift you w.re working?
1. A I wa. working on a .p.oi.l detail for the
17 oounty" DUI oheokpoint. I wa. in the pul1-off .on. in the
18 p.rking lot of the Book-Of.The.Month.Club. The pull-off
l' son. i. where the o.r. th.t w.re .u.p.ot.d of eith.r .
20 v.hiol. violation or .omeon. .u.peoted under the influ.no.
21 of aloohol would b. ..nt in, and I wa. one of the oUio.r.
22 th.t would .ither .or.en the all.g.d aloohol peopl. or taka
23 oare of the v.hiol. probl.m..
24 Q Wer.e you involv.d with the inv..tig.tion for
25 Mr. Molinaro that .v.ning?
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A Y.., I wa.,
o Would you briefly t.ll u. how you b.a...
involved?
A I believe it wa. Corporal Adam. of our
d.partm.nt reque.ted that I aooompany Offioer Kurt. into the
ambulanoe, whioh wa. in that .ame area, with the Defendant.
He wa. a little bit un~uly at the time, and he a.k.d for m.
to go in and accompany him in the ambulano. fo~ the purpo.e.
of drawing blood.
Q What wa. going on wh.n you arrived at the
lite?
A We got in.ide. The Defendant wa. .eat.d on,
I think, a b.noh in the~e, and he wa. given the opportunity
more than onoe to .ubmit to a blQod te.t.
MR. DeOUILIO. Your Honor, I don't like to
.ubmit to thi. objeotion, but you know what happen.? H.'.
attempting to aooredit hi. fir.t witne.. by hi. ..oond
witne.. when, I think, mo.t of everything i. .tated for the
reoord. I ju.t want to put that on the reoord a. an
objeotion. H.'. attempting to aooredit hi. own witn....
TNI COURT. I. your objeotion that thi.
evidenoe i. cumulative"
MR. DeOUILIO. It'. oumulative, Your Honor,
THI COURT. The objeotion i. not~- ~ut
ovelrrul.d,
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1 IY MI. BAIOKLlla
2 0 Ju.t briefly, what happened? What did you
J ob.erve"
4 A I ob.erved Offioer Kurt. give t~e Defendant
5 two warning., one off of our department-i..ued oard that we
fread, al.o one off the .tandard form. I do remember Offioer
7 Kurt. unouffing ~im to .ign t~e form, a.king ~im whio~ hand
8 he write. with, He .till refu.ed to .ign the form. I al.o
, tell everybody and interjeoted, at that point, that
10 MR. DeOUILIO. Your Hono~, I'm going to
11 objeot to what he tell. people.
12 THI COURTl In thi. oa.., did you tell the
13 Defendant .omething?
14 AYe..
15 THI COUITl You may t..tify a. to what you
If aotually .aid, not what you u.ually do.
17 A I tell everybody I arre.t -- and for the
18 purpo.e. of Offioer Kurt., while I wa. .tanding there in the
l' ambulanoe, not to interfere with hi. oa.e, but I tell people
20 in oa.e, for whatever re..on, they don't under.tand the
21 form, even though they .ay they do, I tell them that
22 regardle.. of oriminal pro.eoution, even if a DUI get.
23 kicked, they .till have to faoe a one-year .u.pen.ion with
24 PennoOT. I try and .pell that out with them. I al.o work
25 part time for the DUI booking oenter in the evening.. I get
37
,......,
r-
1 a lot of r.fu.al., and it'. ju.t .om.thing I do, p.r.onal1y.
3 IY HI. HAICKLIR.
3 Q Did you do it in thh oa..7
4 A Y...
5 Q How did the motori.t r..pond to that, th.n?
, A All h. k.pt .ay~,ng w.. h. r.fu..IS. H. wa.
7 giv.n more than ample opportunity to give the t..t, r.p.at.d
. opportunity to give a blood t..t. H. ju.t kapt .aying h.
, nfu..d.
10 Q Wh.n you .aid the warning. that w.r. r.ad to
11 him, w.r. th.y the warning. on the Departm.nt'. DL-2' fo~?
12 A Th. laminat.d oard that we hav., whioh i.
13 ba.ioally the .... v.rbiag. a. the wording on the fo~.
14 Th.n h. r.alS him the fOl~, al.o.
15 MR. HAICKLIR. Okay. Nothing furth.r.
l' MR. D.OUILIOI With Your Honor'. p.~i..ion?
17 THI COURT. Certainly.
11 MR. D.QUILIO. Thank you.
l' CROII-IIAMINATION
20 BY MR. D.QUILIO.
21 Q You w.r. in the oourtroom, wer. you not,
22 wh.n -. I did not a.k for a ..que.tration of the witn......
33 I did not a.k for a ..qu..tration of witn...... You w.r. in
24 the oourtroom. You h.ard my que.tioning, th.n, of your
25 partn.r, and you h.ard m. .tate to him that th.r. i. a gr.at
38
I""'t
^
1 deal of oonfu.ion involved in the.e matter. involving the 00
2 when the one .ide of the oa.e i. a oivil matter, for
3 purpo.e. of the 10.. of lioen.e for one year, and there'.
. al.o the oriminal matter on the other .ide, right?
5 A I h.ard that, that'. oornot.
CS 0 Now, you heard me a.k him, and the ofUoer
7 te.tified -- he didn't an.wer that que.tion at all. He
8 didn't under.tand it. 80, then, I withdrew the que.tion.
9 But you under.tand that que.tion, don't you?
10 A I under.tand what you're .aying, ye..
11 0 That'. why you te.tified that you made .ure
12 that you attempted to explain that to Mr. Molinaro?
13 A You're implying that I'm te.tifying .-
14 0 Let me .ay thi. to you. You were pre.ent in
15 the oourtroom, weren't yOU?
111 A That'. oorreot.
17 0 I. it your te.timony to Hi. Honor that you
18 explained to Mr. Molinaro what I wa. a.king your partner?
19 A What I te.tified to i. what I do ba.ed on my
20 experienoe. working for the DUI oenter part time and
21 probably ooming up with more refu.al. beoau.e I'm at the
22 oenter and all I deal with i. DUI.. And I tell them -- thi.
23 i. my per.onal di.aretion .0 that there'. no que.tion and
24 they oan't .ay later that they didn't under.tand .- I tell
25 them the differenoe between -- that re;ardle.. if theY're
39
'-fP.;'
,~
r-.
1 oonvioted, they lq.e their lioen.. for a year i. they
2 rdu.e.
3 0 Do you al.o .xplain to th.. that there i. a
4 .u.pen.ion that aooompanie. the DUI on the criainal .ide?
5
,
7
.
II
10
11
12 polioe offioer, did he explain that to hi., and h. .aid that
13 he did not either?
14 A That'. oorreot.
15 Q The point i., you do thi. for purpo.e. of
16 olarifioation, i. that not oorreot, to make .ure ther.'. no
17 ai.under.tanding?
18 A 'or my own per.onal prefer.noe, ye..
l' Q Now, did it ooour to you that your attempt to
20 help might injure and might oreate .ven more oonfu.ion?
21 A I don't believe. The way I .tate it, it
22 doe.n't.
23 Q Now, with ref.renoe to Mr. Molinaro, I think,
24 now, we have your partner giving him one verbal warning froa
25 hie oard?
A I do at the booking oenter, ye..
Q You explein that to th_, a. well. Did you
do that in thie oua?
A Not to thb Dehndant.
Q You did not do tha t?
A No.
Q Now, you heard ae a.k your partner, the
40
!""\
"...,
1 A Correot.
2 0 I under.tand that he al.o writa. ~~ not only
3 i. tbere one oriminal oar4, now, he than read. from tbe
. D~.2', you te.tified?
5 A That'. oorreot.
, Q Do I under.tand that after your partner did
7 that, that you, your.elf, went and then explain.d it a third
1 time to him?
, A I tried to put it in -- letting him know that
10 if h. felt that the ra..on for tha .top wa. illagal, for
11 whatever rea.on, and he could get the oonviotion for DUI
12 refu.ed, that he .till wa. faoing a one-year .u.pen.ion.
13 It'. .hort, .weet and .imple. That'. .omething that I do,
14 per.onally,.o that there'. no mi.undar.tanding that if they
15 kiok tha DUI that they don't have to deal with 'ennDOT
11 either.
17 Q So, then, you explainad to him that if he
11 kioked the DUI he wouldn't have to deal with PennDOT, i.
l' that what you're .aying?
20 A No.
21 Q X'm .orry. 00 ahead.
22 A What I'm .aying i. that .0 that thay don't
23 think, defendant. that are arre.ted, that if they don't get
2. convioted of DUX that they don't have to deal with PennDOT.
25 Q So, you're .aying that if theY're aoquitted
41
r '
" ..""\
not guilty of the DUI, they .till have to deal with 'ennDOT'
A If they r.fu.. .
Q If they r.fu..'
A That'. oorr.ot.
Q In thi. partioular oa.e, it w.. your
undentandilllg that thi. partioular Defendant had be.n
1
2
:5
4
5
&
7 oonfu.ed by the information that w.. given by your partner,
1 that he wa. ounfu..d7
, A No, that'. not what I .aid. I .aid in
10 praoUe.
11 Q I'. a.king the que.tion. I'. a.king the
12 qu..tion. 10 that .veryone who oo.e. down there .. thi.
1:5 partioular Defendant wa. oonfronted by tWQ people, now, one
14 polioe offio.r who told him one thing, and another polioe
15 offioer who told him anoth.r thing. 80, he wa.n't told what
1& hi. right., obligation. and dutie. were under the Implied
17 Con.ent Law by one p.r.on. TWo per.on. oonverged on thi.
11 man and told hi. what he hed to do or didn't have to do. I.
11 that your te.tiaonY7
20 A We didn't oonverge on hi..
21 0 okay, Will. you w.re pre..nt with hi., then?
22 A Th.t i. uorr.ot.
23 HI. DeOUILIO. No .or. que.tion., Your Honor.
24 THI COURT. Mr. Ha.okler?
25 .IDI.ICT lXAHINATION
42
.
~
(""\
1 IY HI. HAlCKLII.
2 0 Did Mr. Molinaro exhibit any manife.tation.
3 of being oonfu.ed?
4 A No. Not in rAY per.onal opinion, no.
5 NIt. HAICKLIRI Nothing furthu.
1 THI COURT. Anything further?
7 NIt. DeOUILIO I Nothing further, Your Honor.
8 THI COURT. You may .tep clown. Thank you,
, dr.
10 MR. HAICKLIRI The Dapartment n.t., Your
11 Honor.
12 THI COURT. Ara we .orAahow going to have
13 admitted a. an exhibit the notioe of .u.pan.ion?
14 HR. HAICKLIRI I don't balieve it w..
15 identified. Wa oan, if it would ba ea.ier for the Court.
11 THI COURT I It faoilitate. the drafting of
17 the opinion, baoau.e, otherwi.a, I hava nothing to refer to
18 a. to what'. being appealed from.
19 NIt. DeOUILIOI I have no idea, Your Honor.
20 MR. HAICJtLla. There 11 a oopy attachad to
21 the petition for appeal.
22 THI COURTI Why don' t we taka two rAinute.,
23 and. I'll Xerox thi. oOPY. What I'm intere.tad in i. a oopY
24 of the notic. frorA the Depertment of Tran.portation
25 .u.pending the lioen.e.
u
.
~
~
1 (Whereupon, Commonwealth'~ Ixhibit No. 1 wa.
2 marked for identifioation.)
J THI COURT. M~. DeOuilio, i. there any
4 objeotion to the admi..ion of commonwealth'. Ixhibit NO.1,
5 wbioh i. the notioe of .u.p.n.ion that wa. .ent to the
6 motori.t dated January 21, 1"4?
7 MR. DeOUILIOI I have no objeotion.
8 THI COURT I Okay. Commonwealth'. Ixbibit 1
, i. admittad without objeotion.
10 (Whor.upon, Commonwealth'. Ixhibit No.1 wa.
11 admitted.)
12 THI COURT I The Commonwealth re.t.?
13 MR. KAICKLIRI Ya., You~ Honor, the
14 commonwealth r..t..
15 THI COURT. M~. DwOuilio?
16 MR. DeOUILIO. I have a motion to make, a
17 motion that the app.al be g~anted. I would like to .tate my
18 rea. on. for the reoord. You~ Honor, in thi. partioular
l' oa.e, I think that Petitione~'. appeal .hould be granted for
20 the.e rea.on..
21 one, the te.timony of the police offioer
22 him.elf, that i., tha fir.t witne.., .ay. that he did not
23 ... the vehiole Mr. Molina~o wa. driving either drive into
24 the oheokpoint or oome out -- in the oheokpoint or even oome
25 out of the oheckpoint. The~e i. no te.timony. The offioer
44
53
,
~
~
1 neve~ te.tified to tho.e oruoi.l faot., nor did the
2 Commonwe.lth .ver introduoe into evid.no. any of the 'ennDOT
3 ~.gul.tion. whioh require the manner in whioh a oheokpoint
4 i. to be .et up legally. They never .tat.d th.t for
5 pu~po.e. of the reoo~d. There i. nothing in the r.oord to
. .upport that po.ition that thi. wa. .v.n . valid oheokpoint
7 or that it wa. a oheokpoint. You oould either h.ve a v.lid
8 oh.okpoint o~ an invalid oh.okpoint.
, Moro importantly, th.r. i. no .videnoe in the
10 reoord wh.t.oever a. to the S~preme Co~~t oa.. -- thi. i. .
11 united State. Supreme Court oa.e -- whioh allow. oheokpoint.
12 at different plaoe.. Under the p~opo.ition that -- even
13 though under the 'ourth Amendment people have . right to b.
14 free from un~ea.onable .e.~ohe. and .eilu~e., beoau.e
15 balanoing the inter..t. of the individual again.t the
1. individual in the .ooiety at large, the individu.l oan be
17 required to give up, for the oommon good, hi. right to b.
18 fr.e from unre..onable ...~oh .nd .ei.u~e. if and only if
l' the .obriety oh.okpoint ha. a .tandard .0 th.t it oannot be
20 .xeroi..d 0.prioiou.1y by the polioe offioer. on duty.
21 ror example, Your Honor, to .et up a v.lid
22 and leg.lly binding .obri.ty oh.okpoint, there mu.t be a
23 .tand.rd in operation to oomply with the rourth Amendment to
24 the unit.d Stat.. Con.titution -- and, al.o, if I
25 und.r.tand, the 'enn.ylv.nia Con.titution -- that th.y mu.t
45
5~
.
~
~
1 .eleot every fourth oar, every third oar, every tenth oar o~
3 .very oar. How do we know wh.t, in faot, wa. dQn. he~e?
3 There i. no evidenoe in the ~eoord. The Commonwealth h..
4 oom. before the Court and a.ked the Court, here it i., you
5 figure it out, Judg., you give u. the v.rdiot W.'re looking
6 for.
7 THI COURT. Wh.t'. the next point?
1 HR. DeGUILIOI The next point, Your Honor, i.
, one of the polioe offioer. -- one Qf the real diffioult
10 probl... I h.ve with thi. p.~tioul.r oa.e i. the polioe
11 offioer in que.tion, fir.t of all, .aid it w.. three
12 .ixteenth. of a mile, and then he ohanged it to maybe half a
13 mile, and .0 on, .. to whether he followed thi. partioular
14 oar.
15 If eve~ything he .ay. i. true .nd the oar
1& tr.vel. that long . di.tanoe, one mile, half a mile, no
17 probl..., no diffioulty, pull. into an alley .nd .top. .-
11 wh.t doe. the polioe office~ do .t that p.rtioular time? He
l' ouff. the Defendant. He t.ke. him, cuff. him, never plaoe.
20 him under arre.t. Hi. own te.timony i. th.t he ouffed him
31 and did not plao. him under arre.t. Then he .earohe. the
23 oar. He te.tified that he .earohed the oar. What b..i. i.
23 there to .earoh the oar? He te.tifie. that he wanted to
34 look for open bottle. of aloohol, but he didn't know yet.
25 ~II COURT. Let'. a..uae that he didn't have
4&
~
~
1 ground. to .earoh the o.r, how would that ben.fit your
2 oli.nt in term. of thi. p.~tioular 0..e7
3 HR. D.aUXLIO. It goe. to or.dibility, Your
4 Honor, a. to proper prooedure. throuqhout. It .how.
5 equality. It .how. equality of the polioe offioer. in thi.
1 partioular .ituation, their equality. One, they bring no
7 te.timony in .. to the oheckpoint. They don't .ee the o.r
8 ooming out of the oheokpoint. Your Honor, they nev.r even
, get a de.oription of the oar. Thi. i. at 2.00 in the
10 morning. The polio. offioer him.elf, when I a.ked him,
11 well, wa.n't there a o.r between you two, he .ay., ye., but
12 the oar only o..e in from a different ro.dw.y, but I never
13 lo.t view of the oar.
14 Your Honor, the te.timony i. .uoh that -- you
15 know, we're at night here. We oannot identify a oar by
11 licen.. plate number. We've got to be able to identify the
17 oar by the lioen.e plate number. How do we know we have the
18 right per.on? Then you pull the oar over, you take the man
l' out of the oar, you handouff him, .nd you treat him -- you
20 treat him like he'. a oriminal. You ouff the man, and you
21 never plaoe him under .rr..t. You keep him there -- we
22 thought it wa. thirty minute.. You k.pt him there twenty
23 minute., by hi. own t..timony. They keep the man ouffed for
24 twenty minute.. Then you tran.port him.
25 THI COURT. All right. I think I under.tand
47
~
~
1 tbat point. What'. the next point?
a HI. PeGUXLIO. Then we get to the obeokpoint.
3 One polioe offioer te.tifie., well, he read. him bi.
4 oomplete right., but he'. not .ati.fied with that. He then
5 read. him another right. But the pol!~e offioer who made
. the arre.t and who wa. in oharge of the inve.tigation in
7 tbi. oa.e admitted that he did not follow hi. own
8 requir..ent. under hi. .tatement., whioh .ay (reading).
, Offioer note, the refu.al to .ign this form i. not a refu.al
10 to .ubmit to the ohemioal te.t, not a refu.al, the refu.al
11 to .ign thi. form.
12 THI COURT. I agree it'. not a refu.al. But
13 aooording to the offioer'. te.timony, the 'etitioner refu.ed
14 .everal time. verbally.
15 MR. OeGUILIOr Your Honor, from wbat I
1. under.tand, the par.tioular point involved here, and the idea
17 that we're trying to get aoro.., i. there i. a oonfu.ion
18 here, a oonfu.ion in my olient. Now, you .ee, Your Honor,
l' the other polioe offioer picked up the oonfu.ion, the otber
20 polioe offioer who te.tified, who.e name i.
21 THI COURT. Offioer Beauduy. Thi. i.
22 .ounding a bit like a olo.ing argument.
23 MR. OeGUILIO. No, no. Your Honor, I ju.t
24 want to make .ure that I get the point acro.. here that we
25 have a oonfu.ion here, but when we have -- even though be
48
~ S
,-,
"'"
1 refu.e. the verbal te.t, okay
2 THI COURT. He didn't reru.. the verbal teet.
3 He verbally refu.ed to take the te.t.
4 MR. DeCJI1ILIOI 'int, and reru.ed to dgn
5 thi., but he never a.ked him again to take the te.t. You
. mu.t .till give the motori.t an opportunity to take the
7 ohemioal te.t after he read. the form. He te.tified, on
8 direot examination, that wa. never given the Defendant -- I
9 mean the 'etitioner in thi. oa.e, never. That'. olearly on
10 the reoord.
11 THI COURT I What'. the next point?
12 MR. DeCJUILIO. Now, the next point ie that
13 Offioer Beauduy then reoogni.e. thi. problem. He oome.
14 forward, and he .tate., out of nowhere, after .itting in the
15 oourtroom, that he wanted to make .ure that there wa. no
1. oonfu.ion here. In faot, when I a.ked the fir.t polioe
17 offioer the point on direot examination -- on
18 oro..-examination, that i., well, you know, when you get a
19 per.on off the .treet, you tell him, well, on thi. one
20 partioular point, thi. i. going to be a oa.e on the oivil
21 .ide, and thi. i. going to be a ca.e on the oriminal .ide.
22 The entire prooedure ~.. oonfu.ing from the "I'ord "go." The
23 polioe offioer
24 MR. HAICJl:LIRI Your Honor, thb i. not a
25 olo.ing argument, or not .uppo.ed to be a olo.ing argument.
u
1'"& .....
........
......\
1 I think the que.tion her. i. whather the Department ha. put
2 evideno. in the reoo~d to meet it. bu~den.
3 HR. DeOUILIO. And I .aid it'. not.
4 HR. HAIC~L.I. You're going far bayond the
5 fou~ ~equirement. that the Department mu.t put on.
_ TH. COURT. I don't want to tell you how to
7 pra.ent you~ olo.ing a~gument. You may go on. But what'.
. the next point? It'. not a clo.ing a~qument. I don't want
, to tell you how to p~e'ant your a~gument on the demurrar or
10 oompul.ory non.uit o~ whatever thi. motion i..
11 HR. DeOUILIO. The idea i. that he mu.t
12 .ince the atto~ney fo~ the Commonwealth brought it up, the
13 drive~ wa. ar~e.tad fo~ driving under the influeno. of
14 aloohol. That'. the fir.t point the Commonwealth mu.t maka.
15 They have not damonlt~at.d that, Your Honor.
15 TH. COURT. Thay haven't damon.trated b. wa.
17 unde~ arre.t, okay. What'. tha next point?
18 MR. DeOUILIO. H. wa. a.ked to lubmit to a
l' ohemioal te.t, r.fu.ed to do '0, and wa. .paoifioally warned
20 that a r.fulal would ~e.ult in hi. or ber lioen.. bein~
21 .u.pendod. We .ugge.t that one or more of tho.e four
22 ~aquirement. hava not be.n complied with. Th. fir.t one wa.
23 not. H. wa. never plaoed under a~re.t at tha .oena an4
24 arre.tad for drunk d~iving. H. wa. naver arrelted. That
25 ta.timony i. right in the record.
!So
S1
r'\
,......
1 How, Your Honor, that'. my point. I will not
2 b. pre.enting any other .videno., Ny oli.nt will not ta~e
) the .tand, Your Honor.
4 THI COURT. Okay. ThIn I gue.. w. are ready
5 for olo.ing argument.. L.t'. .... R.ally, Mr. Ha.okl.r
. ought to go .eoond on the olo.ing argument.. So, if you
7 have anything further in the nature of a olo.ing argument,
8 I'll be glad to h.1I' that, aleo,
9 MR. O.OUILIO. Ju.t on. la.t point for the
10 olo.ing argument.
11 THI COURT. Certainly.
12 MR. OeOUILIO. My olo.ing argument i. that
13 und.r the law
14
THI COURT. Ixou.e m.. ,ir.t I'd better rule
15 on your motion.
U MR. OeOl1ILIO. I'm lorry.
17 THI COURT. That'. all right. That'. my
18 mi.tak.. The motion made by the Petitioner at the
l' oonolu.ion of the Commonwealth', o..e that the appeal be
20 .u.tained i. deni.d.
21 Now, a. I under.tand it, Mr. Oeouilio, you're
2~ not going to pre.ent any evidenoe for your .ide?
23 MR. DeOUILIO. No .videnc., Your Honor.
24
THI COURT. Now we're ready for olo.ing
:25 argum.nt..
51
60
~
~
1 HR. DeOUILIO. I ju.t w.nt to mak. .ur. that
2 it'. und.rltood. Th.r.'. a que.tion a. to wh.th.r the
3 point. have b.en rai.ed, a. the Commonwealth ha. point.d
4 out, and, ..oond, ther.'. a burden of per.ua.ion. 10,
5 that'. the i..ue that we're to now, the burden of
, p.r.u..ion, wh.ther the evid.no. p.r.uad...
7 I oit. Your Honor to the o..e of Commonw.alth
8 v. Kohl v. D.nforth. It'. at '15 A.2d 308, 19'2. It'. a
, oa.e p.nned by our di.tingui.hed Ju.tioe St.phen Z.ppa1a.
10 It bring. to the point the law a. it appli.. to the Implied
11 Con.ent L.w. In thi. oa.e, 1547(a) (2) wa. d.ol.red
12 unoon.titutional, b.oau.e, Ju.tio. Z.ppala wrot., that th.re
13 mu.t be a wrongdoing, a wrong don. b.for. the
14 Commonwealth -- b.for. the Impli.d Con..nt Law oom.. into
15 op.r.tion in a partioular 0.... My di.tingui.h.d ooll.agu.
l' look. .urpri..d at that point, but that i. the law in
17 penn.ylvania. Th. ~.re driving of a oar doe. not give the
18 State the right to invoke the Impli.d Con.ent Law. That ha.
l' n.v.r been the law .nd nev.r will be the law .0 long .. w.
20 have a 'ourth Am.ndment.
21 Before the State'. right to invoke the
22 Implied Con.ent Law aome. into b.ing, b.fore it ari...,
23 th.re mu.t b. . wrong done by a 'etitioner or . D.f.ndant,
24 oth.rwi.. we have an .rbitrary law that anybody oan b.
25 .topp.d at any tim., anyplaoe, anywher., and .imply b.oau..
52
~I
I""<
r,
1 they h.v. a driv.r'. lio.n.e, .ny polioe offio.r o.n .rre.t
3 .nyone, .top .nyone .nd ..k .nyone for hi. or her to t.ke
3 the te.t. I .ugge.t that ha. nev.r be.n the l.w, .lthough
4 my ooll.ague will be able to oite many 0.... on th.t point.
5 Th.t'. not the law in 'enn.ylv.nia. It never h.. been.
6 Ju.tio. Z.pp.la make. that point ole.r.
7 Th. only diffioulty we h.ve in the o..e with
8 the .t.tute, it ..y. re..onable. Now, the que.tion i., do..
, the word "rea.on.ble" c.rry an in.tability with it th.t many
10 word. do? 'or example, i. the in.tability on the oivil .ide
11 one of rea.on.bl.n... .nd b.lief, but i. it on the orimin.l
13 .id. prob.ble o.u.e to .rre.t, .0 th.t you re.lly h.ve the
13 underlying propo.ition of the ,ifth Amendm.nt, rourth
14 Amendment and rourteenth Am.ndment, the right of liberty?
15 So, therefor., I believe that the Implied Con..nt L.w h.. to
16 be interpr.ted under the prinoipl.. of the right of liberty,
17 the right to b. fr.e from unre..onable .e.roh and .eilure
18 .nd unre..onable .top.
l' In thi. partioul.r ca.e, my .rll\llllent i., one,
30 there w.. no valid oheokpoint ev.r ..t.bli.h.d by the
31 Commonwe.lth in thi. 0.... They n.ver d.mon.tr.ted to the
33 Court that any of the .igne w.r. a. required by the 'ennDOT
33 regul.tion.. And my ooll.agu. ha. them. H. know. th...
34 Ther. w.. n.ver .ny authority that demon.trated her. th.t
35 thi. p.rtioul.r place wa. authori..d to be . oheokpoint.
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I 1 Thel'e h no evidenoe then. Without that, without that ..
2 ~.oau.e that'. the ~a.i. that the polioe offioer olaimed he
~ pulled my olient over. That wa. the ba.i.. And there i. no
4 evidenoe to .upport that propo.ition, none in thi. reoord.
5 Now, not only that, w. go over, and we
, prooeed forward. Ke follow., .uppo.edly, my olient for at
7 lea.t a half a mile, aooording to hi. tentimony. If my
8 olient were drunk, he oertainly could not have driven that
, fa.t, that far, and pulled in the alley and had no
10 diffioulty. But ono. he pull. into the alley and he'.
11 pulled over, the polioe offioer doe. not arre.t him for
12 drunk driving. At the cheokpoint .- all he'. allowed to do
13 at the oheokpoint i. make an ob.ervation, but here he goe.
14 further. He ouff. my oli.nt, doe.n't put him under arre.t,
15 ouU. him.
U THI COURT I Wouldn' t you .ay that putting
17 .om.body in handouff. would be, in effeot, putting th..
18 under arre.t?
l' HR. DeGUILIOI Your Honor, you oannot be put
20 under ar~e.t impliedly, beoau.e that would impute to my
21 olient knowledge of the law. Ny olient i. not a lawyer. He
22 may be phy.ioal1y re.t~ained, a. in a fal.e impri.onment,
23 but he would not be under arr..t unle.. word. aooompanying
24 that .ay you're under arre.t. The two thing. mu.t go
25 together. There mu.t be a phy.ioal re.traint and a
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.tat..ent you're under arre.t. That never Qoollrred here.
THI COURT. Do you have a oite for that
propo.ition?
propo.ition.
frightened.
with the aan.
HR. DeOUILIO. Your Honor, that i. a Hornbook
If that were not the law, I would be
Not only that, he .tand. there in the alley
The humiliation. We're near the man'. hou...
The humiliation thi. aan goe. through, the rage in.ide, to
believe that a per.on i. pre.umed innocent, learning that
fro. the ti.e we're young children, that the oon.titution
protect. everyone of u.. We're wrapped within the oloak of
the 'ourth Amendment. We believe that we are free.
Th. outrage of plaoing a per.on in ouff.,
then taking a p.r.on at lea.t another half a .ile away and
putting th.. into .ome type of a van. Then the polioe
offioer te.tifie. on the .tand -- and, Your Honor, the
oredibility i. with you -- he te.tifie. on the .tand, one
and it .urpri... .e how the polioe offioer. te.tify .0 well.
He te.tified .0 well. One, not only doe. he read what h.
u.ually carrie. with him, take. out hi. oard and read. it
into the reoord, then he take. out the other one and .aid,
her., I a.ked him to .ign thi., and he refu.ed to .ign it,
but he admitted, though -- and I give hi. oredit for it --
he admitted that he never allowed him the opportunity to
take the te.t after that diffioulty wa. there. He te.tified
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1 to that. That i. not a refu.al. Ivery thing .topped there.
2 He wa. teken, thin, .omewhere el.e, but he never refu.ed
) after he we. reed that.
4 THI COURT. He neve~ refu.ed after he wa.
5 re.d what? I thought he wa. read hi. warning., then be
, refu.ed, and then he refu.ed to .ign the fo~.
7 MR. VeGUILIO. Ye.. But the fo~ al.o .ay.,
8 Your Honor if Your Honor will ju.t bear with me for a
, minute. I made .ure that I a.ked him that .peoifio
10 que.tion. I .peoifioally a.ke4 him that after he refu.e4 to
11 .ign the fo~, he .aid .. and I ..id (~ea4ing)1 Offioer.
12 note, the refu.al to .ign thi. form i. not a refu.al to
13 .ubmit to the ohemioal te.t. You mu.t .till give the
14 motori.t an opportunity to take the ohemioal te.t after
15 reviewing thi. fo~. That wa. never given. He te.tified to
l' that. The reoord i. olear on that.
17 THI COURT. He did review the fo~. By
18 reading t~e form to him, he a.ked him if he wanted to take
l' the te.t. He .aid, no, I 4on't, and he refu.ed to .ign the
20 fo~. You're .aying that even after that, he had to a.k him
21 again?
22 MR. DeaUILIO. No, I'm not .aying that.
23 THI COURT. No?
24 MR. DeGUILIO. What I'm .aying i. he ..ked
25 bim to take the te.t. See, the .equenoe ha. to be oorreot.
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The .equene., a. l reoall it from the t..timony in the
r.oo~d, i., one, the polioe offioer te.tified that he a.ked
him to take the t..t, he refu.ed the te.t, he read the
right., he a.ked him to .ign the fo~. H. did not. After
that, nothing wa. ever .aid. That'. my under. tanding of the
reoord. I think the reoord will bear .e out on that point.
Now, the other polioe offioer, while the
verbal oommunioation. are going along, oome. in and .ay., he
under.tand. the oonfu.ion that prooeed. in the.e matter. and
how a layman oould be oonfu.ed by the -- not under. tanding
that in -- you have two criminal aotion. -- you have two
aotion. in tbi., Your Honor. To be perfeotly frank with
you, I have diffioulty under. tanding it. We have two
aotion. in one aotion. You oan imagine the layper.on. In
faot, the layper.on, him.elf or h.r..lf, would have
diffioulty und.r.tanding. How oan there be two aotion. in
one aotion? How oan we .plit it? You know, on. on one
.ide, one on the other .ide.
I a.ked the polioe offioer, w.ll, didn't you
tell him that th.re i. the thirty-day .u.pen.ion? He .aid
no. Thi. polioe offio.r te.tified on the .tand, y.ab,
there'. a .u.p.n.ion on the criminal .ide and on the civil
.ide. There'. .u.pen.ion. on both .ide..
TH. COURT. Are you .ugge.ting that tbe
r.oord .how. that your olient wa. oonfu.ed?
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1 HR. DaOUILIO. Ixaotly. Y.., it .how. that
2 ha wa. oonfu..d, ju.t not only by the proo.dure it..lf, but
3 the polioe offioer. th....lv.., in trying to h.lp, oonfu..d
4 him ev.n furth.r. Our t..timony i. that the polio. offio.~
5 told him -- w.ll, not t..timony, my qu..tion i. that there
S wa. thirty day.. Th. othe~ polio. offio.r, Mr. I.auduy,
7 ta.tifi.d on the .tand, ya., th.r. i.. Th.re i. a
. .u.p.n.ion on the oriminal .ida and a .u.p.n.ion on the
9 oivil .ide, .0 w. have h.ra two .u.p.n.ion..
10 THI COURT. W.ll, that'. tru.. That'. tru..
11 Th.re are. If a p.~.on g.t. oonvioted of driving under the
12 influenoe and refu.e. to taka the te.t, th.re ar. two
13 .u.pen.ion..
14 MR. D.OUILIO. Ixaotly. lut oan a layman
15 undar.tand thi. wh.n you'~. axplaining thi. to him? Can a
lS layman und.r.tand the oonfu.ion? I agree with Your Honor.
17 I have diffioulty und.r.tanding it, but I oan und.~.tand it.
18 But the diffioulty i. you have another per.on -- h.r.'. ona
l' per.on who .ay. that h. t..tified, y.ah, you're going to
20 have a on.-yaar .u.p.n.ion. You're not allow.d to have an
21 attorn.y. You're not allowed thi.. You're not allow.d
22 that. Th.n the oth.r polio. offio.r mak.. .ure h.
23 und.r.tand. it, but he do..n't tell u. wheth.r thi. wa.
24 aftar thi. wa. pra.anted to him o~ before. He never t.l1.
25 u. that, and no one know.. W. don't have that in the
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:I. ...ooreS, )'1)\1 .e.. No one tell. ". that.
a 10, therefore, under thi. one, if everything
J they .ay i. true, everything, they have not ~omplied with
4 DL-a., their own form. They have not oomplied with it,
5 beoau.e they never gave him the chanoe after thi. went into
. hi. mind to oon.ent. They never gave him the ohanoe again.
7 It wa. I'ea.onable to believe there wa. oomplete oonfu.ion
8 and he did not know.
9 rol' that rea.on, YOUI' Honor, I think, under
10 the faot. of thi. ca.e, and under the Supreme Court oa.e
11 authored by Ju.tioe Zappala, that we .hould gl'ant the
la appeal. Thank you.
13 THI COURT I Thank you very muoh. Mr.
14 Haeokler?
15 MR. HAICKLIRI Your Honor, a. you're aware,
1. the Department'. fir.t obligation i. to pre.ent evidenoe
17 that the offioel' had rea.onable ground. to believe that the
18 motori.t wa. driving under the influenoe. He pulled thi.
l' driver over, and, therefore, he knew he wa. the dl'iver of
20 the vehiole. And the I'ea.onable gl'ound. to believe that he
21 wa., in faot, under the influenoe i. olear by the offioer'.
22 te.timony.
23 Here we have a motol'i.t who the offioer
24 believed ran a cheokpoint, a DUI oheokpoint, who exhibited
25 phy.ioal manife.tation. of being under the influenoe, an
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~ odor of a~oohol on hi. breath, gla..y eye., .taggere4 wben
a be mqved. Thi. i. more tban .uffioient to meet the
J rea.onable-ground. .tandard, whioh i. a very low .tandard.
4 Al.o, the arre.t, the offioer indioated that
5 he read the Department'. fo~, whioh, in the fir.t
6 paragrapb, indioate. that he i. -- the motori.t ha. been put
7 under arre.t for driving under tbe influenoe of aloohol.
8 However, that i. not the te.t. The te~t i. a
, rea.onable-ground. .tandard, whether, under the
~O oiroum.tanoe., the motori.t would know that he i. under
~1 arre.t. Clearly, whan be wa. ouffe4 and put in tbe vehiole,
~a the offioer had .hown ou.tody and oontrol, and that'. all
13 that'. required. But, olearly, the Department'. fo~, wbioh
14 wa. read to the motori.t, indioated that he had been under
15 arra.t,.o the motori.t wa. aware that he wa. under arre.t
16 for driving under tha influenoe.
17 The next elamant that tha Department wa.
18 required to .how wa. that he wa. requa.ted to taka a
l' ohemioal te.t, and there wa. a plethora of te.timony that he
ao wa. givan numerou. opportunitie. to take the te.t and wa.
al reque.tad to take the te.t on numeroue opportunitie.. Ha
aa refu.ed the te.t, and ha wa. read the warning. that ha would
23 lo.e hi. operating privilage for one year if he refu.ed the
24 ohemioal ta.t.
a5 Tha motori.t ha. made a number of objeotion.
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1 beoau.e there wa. no te.tiaony put on with regard to the
3 legality of the oheokpoint. We note th.t thi. motori.t wa.
3 not .topped at the oheokpointl therefore, thie evidenoe
4 would have been irrelevant. It'. irrelev.nt anyway, beoau.e
5 the lupr..e Court, in the wy.ooki deoi.ion, .aid that it did
. not matter whether thi. wa. . oheokpoint o..e, whether the
7 oheokpoint wa. legal or not.
8 THI COURT. Do you have the oite for that
9 oa.e?
10 HR. HAlCKLIRI 517 'a. 175, 535 A.2d 77. It
11 wa. a 1987 0.... Nor i. the legality of the arre.t. of
12 partioular relev.noe. The que.tion i. whether there wa. an
13 arre.t, not wheth.r it wa. . legal arre.t. I note the
14 Commonwealth Court'. deoi.ion of Department of
15 Tr.n.port.tion, Bureau of Driver Lioen.ing, v. Weiohey.
1. That'. W-e-i-o-h-e-y. That'. found at 143 'a. Commw. Ct.
17 1', 5'8 A.2d
18 THI COURT. Nineteen wa. the page number of
l' the Commonwealth Court oite?
30 MR. HAICKLIRI That'. oorr.ot.
21 THI COURT. And the Atl.ntio oite wa.?
32 HR. HAICKLIRI I'm .orry. 598 A.3d 575.
33 It'. a 1'91 deoi.ion.
24 THI COUR~I You're .aying that that deoi.ion
35 hold. th.t the lagaHty of the an..t 11 not an i..u. in a
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1 lio.n.. .u.pen.ion o...?
2 HR. HAICKLI., Th.t'. oorr.ot. I b.li.v. in
3 th.t o..e thay l.ft the mw\ioipality in whioh the .rr..t
4 ooourred, tbair own munioip.lity, and mov.d to . differ.nt
5 one. The Commonwe.lth Court ..id th.t it'. not r.l.v.nt
. wh.ther thi. w.. a legal arre.t. Th. que.tion i. wheth.r it
7 w.. an arre.t. We nota that .inoe the Department h..
. pre..ntad evid.no. on the four .lemant., the burd.n .hift.
9 to the motori.t to .how that thara wa. oonfu.ion, and h.re
10 there ha. been no evidenoe of oonfu.ion.
11 THI COURT. Do you have a oite for the .hift
12 of burdan?
13 MR. HAICKLIR, The burd.n .hift. to the
14 motorht.
15 THI COURT, Do you have a oite fQr that?
l' MR. HAICKLIR, I believe the O'Connell
17 d.oi.ion from the Supreme Court. Th.re are numerouD 0....,
18 but in the Dep.rtment of Tran.portation, the Bureau of
l' Tr.ffio Saf.ty v. O'Connell, 521 Pa. 242, 555 A.2d 73 --
20 it'.. 1'8' oa.e .- the burden then .hift. to the motori.t
21 to .how that the refu.al wa. not knowing and oon.oiou., th.t
22 th.re wa. oonfu.ion.
23 In thi. oa.e, the motori.t ha. pre..nted no
24 .videnoe that h. wa., in faot, oonfu.ed, and the offio.r.
25 h.v. indioated th.t h. manife.ted no indioation of
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Gonfu.10n. Th.ir r.p..t.d warning. w.r. ..r.ly .n .ttempt
to g.t hi. to t.ke the te.t and to fully .xpl.in hi. right..
Wh.t we have her. i. . very oomm.ndabl. job by the polio.
offio.r. in trying to enoou~age .o..on. to take the t..t.
In .pite of .11 of thei~ r.qu..t. and explan.tion, h.r. th.
.otori.t oho.. not to take the t..t, whioh i. hi. right, b~t
h. .u.t ..rve a on.-y.ar .u.p.n.ion a. a ~..ult of hi.
ohoio.. Aooordingly, we r.que.t that the appeal be d.ni.d,
Your Hono~.
TH. COURT. Thank you. Do ooun.el want to
r.qu..t th.t th. tran.orlpt be made of the not.. of
te.tiaony .nd brief. .ub.itted be for. the Court mak.. .
dloidon?
MR. DeOUILIO.
MR. HAICItLlR.
We think '0.
I have no n..d for tha not..
of t..timony, Your Honor.
TH. COURT. But you would like them?
MR. D.OUILIO. Y.., .1r.
TH. COURT. We'll ente~ thi. O~derl
AND NOW, thi. ,th d.y of May, 1"4, upon
oon.ideration of the Petition.r'. App.al fro. Bu.p.n.ion of
Oper.tor" Lioen.e, and following a h.aring, the matter, .t
the reque.t of Petition.r'. ooun.el, 1. t.ken under
.dvi....nt. At the requ..t of Petition.r'. ooun.el, the
.tenographer i. dir.oted to prepare the note. of t..tiaony
u
.
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1 in tbi. oa.l, and brief. .hall be provided to the Cou~t
2 within -- off tbe reoord.
3 (Wherlupon, a di.ou..ion wa. held off the
4 reoord.)
5
THI COURT. Brief. .hall be .ubmitted witbin
& twenty day. of the filing of the tran.oript.
7 Now, Mr. DeOuilio, do you want to frame tbe
e i..ue.?
,
MR. DIOUILIOI I would rather look at tbe
10 tran.oript fir.t, Your Honor, rathlr than rely on my memory.
11 I'd rather look at the note. of te.timony and then frame the
12 i..ue.. But I think that thl i..ue. will be a. 'I .tated in
13 my olo.ing argument and a. well a. my motion for oompul.ory
14 non.uit.
15
THI COURT. I gue.., from Mr. Haeokler'.
1& .tandpoint, tbe probl.. i. if be doe.n't know what the
17 i..ue. are, he doe.n't know what to put in hi. bri'f, .0
18 we'll ohange tbe briefing .chedule a. follow..
l' The Petitioner'. brilf .hall be due within
, ,
20 twenty day. of thl filing of the tran.oript, with the
21 Commonwealth', brief being due fifteen day. thereafter.
22
Okay. Thank you very muoh. Court i.
23 adjourned.
24 (Whereupon, the procllding. were oonoluded.)
25
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C..T1f!C:~ION
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I be~eby o.rtify that the proo..ding. .re
oont.ined fully .nd aoourat.ly in the not.. t.ken by.. on
the above c.u.e .nd th.t thi. i. a oorreot tr.n.oript of
r
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Offici.l Stenograph.r
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The lor.going r.oo~d of the prooeeding. on the
h..~lng or the within matter i. h.reby approv.d and dir.ot.d
to be rU.d.
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COHHONWlALTH or PINNSYLVANIA, .
Plaintiff I
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V. .
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DAVID PITIR MOLINARO, I
D_fendant .
IN THI COURT or COMMON PLIAS or
CUMBIRLAND COUNTY, PINNSYLVAHIA
CIVIL ACTION - LAW
94-0665 CIVIL TIRM
IN RB. APPB~'RO~ LICBNSB SUSPBNSIQN
BEFORB OLBR. J,
QJ\PBR OF COURT
AND NOW, thi. 1~day of Augu.t, 1994, upon con.ideration of
Appellant'. Petition on Appeal from Su.pen.ion of Operator'.
Lioen.e, and followinq a h.aring on the matter, the petition i.
DINIID.
BY THB COURT,
/l
, ,
,
Matthew x. Haeckler, I.q.
A.~i.tant Counsel
TraUioSahty Section
Department of Tran.portation
-, 103 TraneportaUon and Safety
I Harri.burq, PA 17120
t \ Attorney for COllllllonwealth
e jJJ
, ~Felix J. DoGuilio, B.q.
, ,~l~ Suite 1509, Lawyer. Building
r ~ 428 Forbe. Avenue
'b Pitt.burgh, PA 15219
~ Attorney for Defendant
Bldq.
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Of I", "",~HOil';ri\~Y
CUMhf '..At,C CI)UfHY
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COMMONWBATH or PBNNSYtVANIA, I
Plaintiff I
.
v. .
I
DAVID 'BTBR MOtINARO, .
Defendant .
IN THB COURT or COMMON PtBAi or
CUMBBRLAND COUNTY, PBNNsnVANIA
CIVIt ACTION - tAW
94-0665 CIVIt TBRM
IN RB. APPBAL FROM LICBNSB SUSPBNSION
BlfaR! CLBR. J.
OPINION AND ORDER OF COURT
Olar, J.
The pre.ent aa.e wa. aommeno~d in thi. Court by a petition for
appeal from lioen... eu.peneion filed by Defendant, David Peter
Molinaro (Appellant). The au.pen.ion wa. impos.d by Plaintiff,
Commonwealth of penn.ylvania, Department of Tran.portation, Bureau
of Driver Liaen.ing (Appellee), pureuant to Seotion 1547 of the
Vehiale Code.1 A hearing on Appellant'~ petition wa. held before
the undenigned judge on May 9, 1994. Ba..d upon the evidenoe
preeented at the hearing, the followinq Finding. of Faat,
Di.ou..ion and Order of Court are mad. and entered.
FINDINGS OF FACT
1. Appellant b David Peter Molinaro, neiding at 12 w..t
toou.t street, Meohanio.burg, Cumberland County, penn.ylvania.
2. Appellee i. the Commonwealth of penn.ylvania, Department
of Tran.portation, Bureau of Driver Lioeneing, Room 103,
Tran.portation and Safety Building, Harri.burg, Dauphin County,
penn.ylvania.
1 Aat of June 17, 1976, P.L. 162, 11, .. amended, 75 Pa.
C.S.A. 11547 (1994 supp.) (provi.ion for liaen.e .u.pen.ion in
evant of blood aloohol te.t refu.el).
'"
,...
94-0665 CIVIL TIRM
3. At approxilll&tely 2118 on the morning of Saturday, Deoember
18, 1993, OUioer JeUrey D. Kurtz of the Upper Allen Town.hip
Polioe Department had podtioned him.elf in the vioinity of a
d.u.i. oheokpoint, he ob.erved Appellant operating a motor vehiole
in a northerly direotion on south Market Street.
4. Offioer Kurtz reoeived a radio oommunioation that
Appellant had paned through the oheokpoint without .topping u
required.
5. OUioer Kurtz began to punue Appellant and eventually
.topped him in the firet blook of We.t Stouffer Alley,
Meohanio.burg, Cumberland County, penn.ylvania.
6. A. Offioer Kurtz approaohed the vehiole and began to .peak
with Appellant, he deteoted the odor of an alcoholio beverage and
notioed that Appellant'e eyee were gla..y.
7. OUioer Kurtz a.ked Appellant to perform .ome field
.obriety teet..
a. After Appellant had exited hie vehiole, OUioer Kurtz
notioed that Appellant "had a .light weave about him u he walked
and a. he would .tand etill.,,2
9. Appellant .tatad that he would not perform any te.t.
beoau.e he had been .topped for no reaeon.
10. Offioer Kurtz .poke with Appellant for a few more minute.
2 N.T. 9, Hearing, May 9, 1994, Commonwealth v. HOlinaro, 94-
0665 Civil Term (Cumberland County).
2
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94-066~ CIVIL TURM
and then a.ked Appdlant a Iloond tilll8 to perform .011I8 field
.obriety tenh.
11. Appellant again refu.ed and Offioer ~urtz plaoed
Appellant in handoufh to tun.port him back to the oheokpoint
looatlon.
12. Upon hi. arrival at the oheokpoint, Appellant wa. plaoed
in. ide a waiting ambulanoe.
13. Officer ~urtz advi.ed Appellant that he wa. under arre.t
for driving under the intluenoe of aloohol or a oontrolled
.ub.tance.
d
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14. Offioer ~urtz a.ked Appellant if he would allow a blood
.ample to be drawn and Appellant refu.ed.
15. OfHoer ~urtz then advhed Appellant of the implied
oon.ent lawJ by reading the following to him..
Any perlon who drive., operate. or i. in
aotual phy.ical control of the movement of a
motor vehicle in thil Commonwealth ha. given
oon.ent to one or more chemical te.t. for the
purpo.e of determining a blood aloohol
content. The con.titutional right. you have
a. a criminal defendant, commonly known a. the
Miranda right., includ1ng the right to .peak
with a lAwyer and the right to remain .ilent
apply only to criminal pro.eoution. and do not
apply to ohemical teeting procedure under the
Pa.'. Implied Con.ent Law, whioh i. a oivil,
not a oriminal, proceeding.
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J Aot of June 17, 1976, P.L. 162, '1, .. ..mended, 7~ Pa.
C.S.A. 11547 (1994 Supp.).
· Offioer Rurtz read thie from a card whioh he carried in hi.
uniform at all time..
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94-0665 CIVIL TRaM
You hav8 no right to .p.ak to a lawyer or
anyone el.e before taking the chemioal te.t,
nor do you have the right to reub dlent
when a.ked to .ubmit to the chemical t..t.
Unle.. you "gree to .ubmit to the ohemical
te.t, your oonduct will be d.emed to be a
refu.al, and your operating privilege will be
.u.pended for one year. Your refu.al to
.ubmit to the ohemioal te.ting under the
Implied Con.ent Law may be introduoed into
evidenoe in a oriminal pro.eoution for driving
under the influenoe of alcohol or a controlled
.ubetance.
16. Appellant again refu.ed to .ubmit to a ohemical te.t for
the purpo.e of determining blood aloohol content.
17. Offioer 'Iurtz then read to Appellant another implied
con.ent werning.&
Pleage be advi.ed you are now under
arre.t for driving under the influence of
aloohol or a controlled .ubetanoe pur.uant to
Seotion 3731' of the Vehio le Code. I IllII
reque.dng that you .ubmit to the chemioal
te.t of blood. It ie my duty AI a police
officer to inform you that if you refu.e to
.ubmit to chemical te.t., your driving
privilege will be .u.pended for a period of
cne year.
A. a polioe offioer, it ie my duty to
explain to you that the conetitutional right.
due you in a criminal pro.ecution ae .et forth
in the Miranda decieion do not afplY to the
ohemioal teeting under the Impl ed Coneent
Law. Speoifically, you do not have a right to
& Officer Kurtz read thi. warning from a form that i.
.ubmitted to the penn.ylvania Department of Tran.portation after
eomeone ha. refund to .ubmit to chemical te.Ung to determine
blood alcohol oontent.
, Act of June 17, 1976, P.L. 162, 51, .. amended, 75 Pa.
e.S.A. 13731 (1994 Supp.).
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94-0665 CIVIL TERM
con.ult with a lawyer or anyone el.. prior to
taking the chemical te.t, nor do rou have the
right to remain .ilent when a po ioe officer
a.k. you to .ubmit to the chemioal te.t. Your
oontinued reque.t to .peak with a lawyer or
anyone el.e after thi. eKplanation i. given or
your .Uenoe when uked to .ubmit to the
ohemioal te.t will be oon.idered a. a refu.al
of the ohemioal t..t ,ubjeoUng you to the
.u.pen.ion of your driving privilege.
18. Appellant again refu.ed to .ubmit to ohemioal te.ting
and, in addition, refu.ed to .ign the form.
19. aa.ed upon the foregoing, the penn.ylvania Department of
Tran.portaUon WI., notUied of a te.t refu.al, and Appellant'.
licen.e WI., .u.pended.
20. Miranda warning. were not admini.tered to Appellant, and
he did not di.play any oonfusion with re.peat to hi. right to an
attorney in oonneotion with the ohemioal te.t.'
21. Appellant wa. manUe.Uy under and subject to the cu.tody
and control of Officer Kurtz at the time that Appellant WI., a.ked
to .ubmit to chemioal t..ting.
22. AppeUant mad.. a voluntary, knowing and oon.oiou. refu...l
to ,ubmit to the te.t.
, Although Appellant was not given Miranda warning. and did
not diephy any confueion u to hie right to an attorney in
oonnection with ohemical te.ting of hi. blood, he WI., neverthele..
intormed that the right. guaranteed by Miranda were inapplioable to
the ohemical te.t and that he did not have the right to oon.ult
with an attorney. See Finding. of Fact 15, 17, cf. Commonwealth,
Dept. of Tran8p. v. O'Connell, ~21 Pa. 242, 252, 555 A.2d 873, 876
(1989) .
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DISCUSSION
Cqntention. o~ ~ppellant. In thi. appeal, Appellant oont.nd.
the following. (1) that Offioer ~urtl failed to plaoe him unde~
art..t befo~e a.king him to .ubmit to chemical te.ting, (2) that
Appellant did not knowingly and oon.oiou.ly ~efu.e to .ubmit to
chemical t..Ung, and (3) that Appellee faUed to prove the
exi.tenoe of a con.titutionally .uffioient .obriety oheokpoint.'
Statem.nt of L~. The p.rtinent po~tion. of Section 1547 of
the V.hicle Code provide a. follow.1
(a) General rule. - Any p.r.on who driv.. ...
A motor vehiole ip thi. Co~onw.alth .hall be
deem.d to have qiv.n oonunt to one or more
ohemioal t..t. of br.ath, blood or urine for
the purpo.e of determining the alcoholio
oontent of blood or the pre.ence of a
controlled .ub.tano.....
(b) au.pen.ion for refueal. -
( 1) I f any penon plaoed und.r
arre.t for a violation of Section
3731 (r.latinq to drivinq under the
influ.nce of alcohol or controlled
.ub.tance) i. requeetad to .ubmit to
chemioal te.tinq and refu.e. to do
eo, the t..Unq .hall not be
conduoted but upon notice by the
police officer, the department .hall
.uepend the operaUnq privileqe of
the per.on for a period of 12
month..
(2) It .hall be the duty of the
police officer to inform the per.on
, Appellant'e Brief, paqe. 12-15.
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~4-0665 CIVIL TIRH
that the penon" operating
privilege will b. .u.pended upon
refu.a1 to .ubmit to ohemioal
te.Ung.
Act of June 17, 1976, P.L. 162, 11, as .mend.d, 75 Pa. C.I. '1547
(1994 Supp.).
'1'0 .u.tain a licen.e .u.pen.ion under thh .ection of the
Vehicle Code, the Department of Tran.portation mu.t prove that the
driver (1) Will arre.ted for driving under the influence of aloohol,
(2) wa. a.ked to .ubmit to a chemical te.t, (3) refu.ed to do .0,
and (4) wae .pecifioally warned that a refu.al would re.ult in a
licen.e .u.pen.ion. Commonweal th, D.pt. of 'l'ranllp. v. lei tin., 150
I,
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fa. Commw. 44, 50-51, 614 A.2d 349, 353 (1992).
The que.tion of whether or not a driver ha.
been "placed under arre.t" for purpo.e. of
Section 1547(b) of the Vehicle Code i. a
factual, rather than a legal determination,
and all that i. nece..ary i. that the driver
be under the cu.tody and oontrol of the per.on
effecting the ane.t...... A formal declaration
of arre.t i. not req;)irad to uti.fy the
requirement for lu.pending a driver'. licen.e
for refu.al to .ubmit to a chemical te.t, the
relevant inquiry i. whether the driver, at the
time he Will a.ked to .ubmit to the chemical
te.t, .hould have inferred from the totality
of t.he ciroum.tance. that he wa. under t.he
control and ou.tody of the offioer.
COllllllon...ealth, Dept. of 'l'ranllp, v. MoGlynn, 147 Pa. COJlllllW. 454, 458-
59, 611 A.2d 770, 772-73 (1992).
Onoe the Department haa e.tablbhed t.he.. element., t.he burden
.hitt.. to t.he driver "to prove t.hat he wae not capable of making a
knowing and con.ciou. refu.al t.o take the t.e.t. Thi. i. a factual
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94-0665 CIVIL TRRM
determination whioh i. to be made by the trial oourt."
Commonwealth, Dept. at rran.p. v. O'Connell, 521 Pa. 242, 252, 555
A.2d 873, 876 (19891.
With relpeot to the driver'. burden of proving that he wa. not
oapable of making a knowing and con.oioue refu.al to take the te.t,
it ha. been held that "when the oornot warningl are given, and
when a licen.ee h phydoally and mentally c.p.ble of
under. tanding them, a licenlee h pre.umed to under.tand." Bell v.
Commonwealth, Dept. ot Tran.p., 147 Pa. Commw. 157, 165, 607 A.2d
304, 309, allooatur denied, 532 Pa. 666, 618 A.2d 403 (1992). A
lioen.ee may rebut the pre.umption by a .howing of incapacity, and,
in the ab.enoe of an obvioue medical infirmity, competent medioal
evidence may be required to overcome thh pre.umption. Ab.ent .uch
evidence, "'bare a...rtion.' of phYlicd inoapacity are
in.uffioient." Commonwealth, Dept. of Tran.p. v. Oro.oo.t, 142 Pa.
COD\DIW. 36, 41, 596 A.2d 1217, 1220 (1991).
On the i..ue of wh.ther the conltitutionality of a .obriety
cheokpoint i. pex'tinent to a licen.. .u.pandon ca.e, the Supreme
Court of penn.ylvania ha. held that the legality of a oheokpoint i.
irrelevant for purpo... of a licen.e lu.pen.ion proceeding.
Commonwealth, Dept. of rran.p. v. Wy.ooki, 517 Pa. 175, 179, 535
A.2d 77, 79 (1987). Furthermore, the power of the Department of
Tran.portation to ,ulpend a driver'. licen.e for a te.t refu.al i.
not dependent on the legality of the arr..t. rd. Rather, the
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94-0665 CIVIL TIRN
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p~opri.ty of the .u.p.n.ion for .uoh ~efu.al depend. upon wh.ther
I
the offioer had rea.onable ground. to believe that the liaen.ee wa.
op.rating hi. vehiol. under the influenoe of aloohol.
Commonwealth, Dept. of fran.p. v. Doyle, 103 Pa. Commw. 490, 493,
520 A.2d 917, 918 (1987).
Application of law to fach. On the i..ue of wh.the~
Appellllnt wa. plaoed unde~ arre.t, the Cou~t ha. found that
Appellant wee lII&nUe.tly under and .ubjeot to the ou.tody and
oontrol of Offioer Kurtz at the time that Appellant wa. a.ked to
.ubmit to t..ting. pur.uant to COlMlonwealth, Department of
fran.port.tion v. leitin.,' the prerequi.ite of arre.t for a valid
reque.t to .ubmit to chemioal te.tinq ha. been .hown.
In reviewinq the implied con.ent warning. read to Appellant by
Offioer Kurtz, the Court h of the opinion that the.. warning.
info~d App.llant of the oon.equenoe. of . refu..l to .ubmit to
te.tinq and .ati.fied the requirement. of O'Connell.lo APpell.nt'.
contention th.t he w.. oonfu.ed about the con.equence. of hi.
refu..l to .ubmit to ohemioal te.t!ng for blood alcohol oontent i.
not .upported by evidenoe other than Appell.nt'. b.re ....~tion..
The p~..umption th.t Appellant under.tood wh.t wa. expl.ined to him
by Offio.r Kurtz h.. not been rebutted.
· 150 P.. Commw. 44, 614 A.2d 249 (1992).
10 COlMlonwe.lth, Dept. of fran.p. v. O'Connell, 521 'a. 242,
555 A.2d 873 (1989).
9
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With nlpect to the l_gality of th_ .obriety oheckpoint, a
determination in thh regard would not advance the inquiry into the
propriety of Appellant'. licen.. .uependcn ba..d on a teet
refu.al. Given what Officer Kurtl had been told and had ob.erved,
the Court belbv.. that the oUicer had reaeon.ble qround. to
believe that Appellant wa. operatinq hi. vehiole while under the
influence of alcohol. In the context of a licen.. au.penaion
appeal, thia i. the relevant factor.
For th..e reaeon., the following Order of Court will be
entered I
ORDBR OF COURT
AND NOW, thia 9Yl day of Auguat, 1994, upon oon.ideration of
Appellant'. Petition on Appeal from su.pendon of Operator' a
Licen.e, and following a hearing on the matter, the Petition i.
DJ!lNIIBD.
BY THB COURT,
J.
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.ley Oler,(; r., J.
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Matthew x. Haeokler, B.q.
Aa.i.tant Coun.el
Traffic Safety Section
Department of Tranaportation
103 Tran.portation and Safety Bldg.
Harrilburq, PA ].1120
Attorney for Commonwealth
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AUG 23 19S.
IN THil COURT OF COMMON PJ,.ilAS or CUMBERLAND COUNTY, PENN.SYLVANIA
CIVIL ACTION LAW
COMMONWEALTH OF PENNSYLVANIA,
Plaintiff,
vs.
DAVID PETER MOLINARO,
Defendant.
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No. 94-0665 Civil Term
Issue No.
PETITION FOR STAY
Code_
Filed on behalf of Defendant
David Peter Molinaro
Counsol of record for
this Party:
FeliK J. DeGuilio, Esquire
PA I.D. #10771
1509 Lawyers Building
pittsburgh, PA 15219
(412) 261-1972
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IN 'rilE COUll'!' Of' COMMON PLEAS (W CUMBERLAND COUN'ry, PENNSYLVANIA
CIVIL ACTION LAW
COMMONWEAL'1'II OF' PENNSYLVANIA,
)
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No. 94-0665 civil Term
vs.
DAVID PE'!'EH M01.lNAllO,
1'1::'1'l'1'10ILfQR-STAY.
'ro 'rilE 1l0NOHABLE, 'I'lIE JUDGES OF TilE SAID COUR'r I
The Petition for stay of David Peter Molinaro (Molinaro)
respectfully repreaentsl
1. 'rhe Court by or.der entered August 9, 1994, denied
Molinaro'a appeal and sUf1tained the Department of 'rransportation's
(DO'r) one year sU13pension of his license for refusing chemioal
testing.
2. DOT's case against Molinaro is predicated and founded
upon an out of court assertion that he rofueed to stop for a
sobriety checkpoint and on inference that he refused to stop
because he was under the influence of alcohol.
3. DOl"s proof ag.'inat Molinaro was an asserted out of oourt
radio communication that a green car had driven through a sobriety
checkpoint.
4. Of ticer Kurtz testif ied that he did not see Molinaro
drive through the asserted sobrJ.ety checkpoint.
5. No oft icer test! tied to the existence of a sobriety
checkpoint or that Molinaro was seen driving through a checkpoint.
6. DOT claims the asserted radio communication falls within
an eKception to tho hearsay rule, as a state of mind eKception, and
oomes in to prove Officer Kurtz's asserted state of mind or belief
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that MoUnaro refused to stop for a SQbriety checkpoint because he
was under the influence of alcohol.
7. In support of its asserted proposition DOT cited the case
of fAtto~n v. Qgmmgnw~Altb, 138 Pa. Commonwealth ct. 292, ~87
A.2d 897 (1991).
8. The Court accepted the proposition of nOT and found as
finding of fact number 4, "Officer Kurtz received a radio
communioation that Appellant had passed through the checkpoint
without stopping as required."
9. In PatterliQJ1, a woman claimed that a motorist had
followed her at a slow rate of speed a8 she was walking in Centre
Avenue, and in the 1800 block of Centre Avenue, the motoriut pulled
up alongside her, parked his car and began to follow h~r on foot.
The woman returned home and called the police. When the polioe
officer arrived, she informed him tnat the car was parked in the
1800 block of centre Avenue and they went there immediately. While
the police officer was talking to the woman, the defendant arrived
at the scene and the woman identified defendant as the man who had
been following her. The identification of defendant in fAtterson
as the person who followed the woman in his car was not hearsay,
~, they were offered to prove the identity of the qefendant and
were made in the presence of the defendant, who did not deny the
allegation.
10. In the instant case, no identification of Molinaro, as
the driver of the "green car" was ever made in or out of court! no
one testi f ied as to the existence of a checkpoint or as to the
identity of Molinaro as to the person who had driven through a
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Whether a Pennsylvania citizen loses all his riqhts to an
eKpectation of privaoy once he gets behind the wheel of a car?
11. The court's order denying Molinaro's appeal holds that
he lost all his rights to privacy once he got behind the wheel of
his car. Finding of fact number 4, "Officer Kurtz received a radio
communication that Appellant had passed through the checkpoint
without stopping as required." is not supported by competent
evidence. patterson above.
'fhe Court has not made a proper
distinction between a perception and a proposition, A judgment on
a proposition requires that the court independently judge the truth
or falsehood as to whether a sobriety checkpoint was in existenoe,
a person driving a car was ordered to stop, the person did not stop
as ordered, the person did not stop because he was under the
influence of alcohol, and the person was Molinaro. No evidence
exists in the record to support finding of fact number 4.
The court writes that inquiry into the eKistence, yel non, of a
sobriety checkpoint "would not advallce inquiry into the propr.iety
of Appellant's license suspension based on a test refusal"l end"
, . . the power of the Department of Transportation to suspend a
driver's license for a test refusal is not dependant on the
legality of the arrest."
12. The legal consequence of the court's order is to give
the police of cumberlanct county legal authority to stop care
arbitrarily and demand that drivers submit to chemical testing or
lose their license for one year. The court's proposition directly
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violates the holding of ~Dl.L-.'L,--.~, 615 ,",2d 308 CPa. 1992).
lUlMl.QtfiLfiJ1UllWi'J.'..lH(LJl.'l'A1
A. Molinaro has raiaed aiqnificant legal issues involving
the rights of a Pennsylvania oitizen to un eKpectation of privacy
when driving a car.
a. Wi thout a stay, the harm to Molinaro will be great in
that he will lose hiB right to drive a car for one year and be
without tho liberty to move about at will with the use of a oar.
C. The harm, if any, to DOT is slight when balanced against
the harm Molinaro will suffer from an erroneous order.
D. Further, both DOT and the public have an interest in
having the substantial legal issues raised by Molinaro'a appeal
decided correctly on the merits. EA...~Util. c.Q.llIDL.. v. Process
Gas consumers, 467 A.2d 805 CPa. 1983).
WHEREl!'ORE, David Peter Molinaro prays thIs Honorable Court to
grant a stay from the order of August 9, 1994 pending disposition
Of his appeal to the Commonwealth Court.
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IN TH2 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
No, 2-2-07 e.f). 11'l'f
COMMONWEALT/l OF PENN::lYLVANIA, No. 94-0665 civil Term
Plaintiff,
Issue No.
vs.
NOTICE OF' APPEAL
DAVID PETER MOLINARO,
Defendant.
Code_____________
Filed on behalf of Defendant
David Peter Molinaro
, i
Counsel of record for
this Party:
FeliK J. DeGuilio, Esquir.e
PA 1.D. #10771
1509 Lawyers Building
Pittsburgh, PA 15219
(412) 261-1972
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cumb.rl~9d ~o~nt~ Prathonotary'. ottiae "9M
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supedol: C"
J:lCeCluUon O.te
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JU~Y Tdal....
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u,ner.l lnd.~ Attorney Into
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JudV' Alli9nedl
Judvm.ntl
OLIR J WEa~!Y JR
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~al.~At~l.l! IIIIU ~~,~~PI6L r.~8V 'UIEI~ltO~ QE ~RIVE~S LICENSE
Sl,~', ~ ~~ t ~OU~T iNJKEI Llc N . sul~iRsloN APPEA~ BY JUDG! J WISLEY
~1~~i~lt I~ IlA~r~~!if I~ REI APPEA~ fROM ~ICENSE SUSPENSION - SY
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IN ~ COMMONW2ALTH COURT or P~___YLVANIA
NOTICE OF DOC~ETING APP2AL
Dooket NOI 2207 C.D. 1994 riled Datel 09/01/'4
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Re, MOLINARO v. D.O.T.
Lower Court No.1 94-066~
A Notio. ot Appeal a oopy Qf whioh i. enoloeed, from an ord.r of
your oourt ha. be.n dook.ted in the Commonwealth Court of Penn.ylvania.
The dooket number in the Commonw.alth Court i. .ndor.ed on thie notioe.
The commonwealth Court dooket number mu.t b. on all corre.pond.noe
and dooument. filed with the Court.
Under Chapter 19 of the PenneYlvania RUlee of Appellate Prooedure,
the Notioe of Appeal ha. the eft.ct ot direoting the Court to tran8mit
the oertified reoord in the matter to the Prothonotary of the
Commonwealth Court.
The oomple~e record, inclUding tho opinion of the trial jUdge,
.hould be torwarded to the Commonwealth Court within torty (40) daY8
ot the date of filing of the Notice of Appeal. Do not tranemie a
partial record.
Pa. R.A.P. 1921 to 1933 provide. the .tandard8 tor preparation,
o.rtification and tran8mi8sicn of the record.
The addreu8 to which the Court i8 to tran.mit the record ie .et
forth on page 2 of this notice.
NOTICE TO COUNSEL
A copy of this notioe is being 8ent to all parties or counsel
indicated On the proof of eervice accompanying the Notice of Appeal.
The appearance of all couneel has been entered on the r.oord in the
commonwealth Court. Counsel hae thirty (30) day. from the date of
filing Of the Notice of Appeal to file a praecipe to withdraw their
appearanoe pur.uant to Pa. R.A,P, 907(b).
Appellant or Appellant'e attorner ehould r.view the record of the
trial oourt, in ord.r to insure that t is complete prior to
certifioation to thi. Court. (Not., A oopy Of the Zoning ordinance
mu.t aocompany records in Zoning Appeal cases).
The addr..... to which you are to tranemit documents to thie Court
are ..t forth on pag. 2 of this Notioe.
It you have epeoial needs, pl.a.. contact thi. court in writing as
eoon a8 pos.ible.
Lower Court Judgel Honorable J, Wesley Oler Jr.
Attorney' F.liK J. DeGuilio Esq.
Attorney, Matthew X. Haeckler
Notioee !Kit, 09/12/94
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Prothonotary
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Addr... 811 ..i~.'A oommunioation. to'
Offioe of the Prothonotary
Commonwealth Court of penn.ylvania
P. O. Box 11730
Harri.burq, PA 17108
rilinq. may be made iD p..'DD at the following addre.. (exoept on
laturday., Sunday. and leqll Holiday. ob.ervld by Penn.ylvania
Court.) betw.en 9100 ft.m. and 4.00 p.m. '
Offioe of the Chief Clerk
commonwealth Court of Penn.ylvlnia
Room 6:24
SiKth Floor
South otfioe Building
Harri.burg, PA 17120
Pleadinq. and e1milar pa:ren (but not paperbook. or oertified
reoord.) may al.o b. till iD pe..DD DDly at.
ottice of the Prothonotary
Commonwlalth Court of penn.ylvania
Filing otfioe
Suite 990
The Widener Building
One South Pann Square
Philadelphia, PA 19107
(2115) 1560-15742
The hour. of the Philadelphia Filing OfficI arl 9.00 e,m. to 4.00
p.m.
under PA. R.A.P. 3703, write or other prooe.. i.suing out of the
Commonwealth Court .hall eKi.t only trom the Harri.burq Offioe and
.hall ba returnable thereto.
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IN THE COURT or COMMON PLEAS OF CUMaERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
COMMONWEALTH OF PENNSYLVANIA,
Plaintiff,
No. 94.066~ civil Term
Issue No.
VB.
NOTICE OF APPEAL
DAVID PETER MOLINARO,
Defendant.
Code
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Filed on behalf of Defendant
David Peter Molinaro
Counsel of record for
this Party I
Felix J. DeGuilio, Esquire
PA 1.0. #10771
1509 Lawyers auilding
Pittsburgh, PA 15219
(412) 261-1972
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The Commonw.alth Court i. in.tituting a new .ervio. in order
to .peed oopie. of order. .nd opinion. to .ttorney. litigating
c.... 'in thi. Court. W. will FAX copie. ot .11 order. and opinion.
in a giv.n ca.. to coun..l upon written requ.et and the pa~.nt of
a .50.00 ..rvic. ch.rg..
It you wi.h to .vail youre.lt to thi. .ervico, pl.... till out
and return the information b.low and att.ch a ch.ck mad. payable to
the commonwealth Court ot P.nn.ylvani. in the amount ot '50.00.
81 SURI TO INCLUDE THE DOCRET NUMBER OF THE CASE.
---------------------------------------.---------------------------
I de.ir. to have all order. or opinions in the below oaption.d'
oa.. taxed to me.
Nam.
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IN THE COVRT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
Plaintiff
v.
NO. 94-0665 CIVIL TERM
DAVID PETER MOLINARO,
Defendant
THE DEPARTMENT OF TRANSPORTATION'S ANSWER
TO MOLINARO'S APPLICATION FOR SUPERSEDEAS
AND NOW, the Department of Transportation, Bureau of
Driver LicenSing, by and through its attorney, Matthew X. Haeckler,
Esquire, respectfully represent. a. followsl
1. Admi t ted.
2. Denied as stated. While the reason that Officer
Kurtz .topped Molinaro is because he received a radio message that
Molinaro'. vehicle had passed through a sobriety check point
without stopping, this statement was admitted to explain the basis
of Officer Kurtz's actions. ~~,~, patteraon v. Commonwealth,
138 Pa. Commonwealth Ct. 292, 299, 587 A.2d 897, 901(1991). A
police officer could reasonably rely upon another police officer's
radio communication concerning a motorist's actions in formulating
his reasonable grounds, , especially since a motorist'. actions in
proceeding through a sobriety check point without stopping tends to
show the motorist I s consciousness of gull t. au,.!L..IL.,
Commonwealth v. Ruttle, 388 Pa. Superior Ct. 262, 565 A.2d
477(1989)/ Commonwealth v. Monahan, 378 Pa. Superior ct. 623, 549
A.2d 2.11(1988), aDDed denied, 522 Pa. 574, 559 A.2d 36(1989).
In any event, the radio communication merely shows why
, ~, ~, DeDartment of TransDortation. Bureau of Driver
Lioensing v. Webs~, 104 fa. Commonwealth Ct. 214, 521 A.2d
519( 1987).
~
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Officer Kurtz .topped Molinaro'. vehicle. patter.on. Even ab.ent
the radio communication, the undi.puted facts show Officer Kurtz
had rea.onable grounds to believe Molinaro wa. driving a vehicle
under the influence of aloohol. au,~, Department of
Transportation. Bureau of Traffic safety v. s~e~, 107 Pa.
Commonwealth Ct. 200, 527 A.2d 1119 (1987). The radio
communioation is simply not material to the issues in this ca.e,
given that the legality of the motorist's arrest is irrelevant in
a refusal case. Department of Tra~sportation v. Wysocki, 517 Pa.
175, 535 A.2d 77(1987)1 ala.. v. Department of Transportation.
Bureau of Traffic Safety, 460 Pa. 362, 333 A.2d 768(1975).
3. Denied for the reason stated in paragraph 2.
4. Admitted.
~. Admitted.
6. Admitted.
7. Admitted.
8. AdmJ. t ted.
9. Admitted insofar a. it describe. the fact. of
Patterson v. commonwealth, 138 Pa, commonwealth ct. 292, ~87 A.2d
897(1991), but denied insofar as it attempts to explain why Officer
Ragland's testimony concerning Ms. Howard's identification of
Patterson was not hearsay. Heo1rsay is "an out of court declaration
if it is offered for the purpose of proving the truth of the matter
contained in the declaration." Semieraro v. Commonwealth Utility
EauiDment CorD., 518 Pa. 454, 457, 544 A.2d 46, 47(1988).
Molinaro's explanation that Officer Ragland's testimony concerning
Howard's identification of Patterson is not hearsay ie speciou.,
.ince if the statement was used to prove Patterson's identity, it
i8 clearly hearsay. Rather, Officer Ragland's testimony concerning
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Howard'a identification of Patterson was used to prove why Officer
Ra9land QIlieved that patteraon had been driving a vehicle. iaI
tlatterJJUl, 138 Pa. Commonwealth Ct. at 299, 587 A.2d at 901.
Officer Kurtz had no reaaon to doubt that Molinaro waa drivin9 a
vehicle since he saw Molinaro's driving.
10. Admitted except that Molinaro'a argument that th8re
waa no testimony that a sobriety checkpoint existed ia denied.
Officer Kurtz testified that he was stationed near a aobriety
checkpoint which prove a he knew such a checkpoint existed.
11. Denied. Molinaro claims that this court'a finding
of fact number four, which states that Officer Kurtz received a
radio mesaage that Molinaro had driven through a aobriety
checkpoint without stopping, is not supported by the evidence.
However, the challenged finding is suppo~ted by Officer Kurtz's
testimony. Moreover, the trial court's finding correctly did not
pasy on whether the substance of the radio communication was true.
The testimony concerning the radio communication was used merely to
explain the reasons for Officer Kurtz's actions and what he
believed. Patterson, 138 Pa. commonwealth Ct. at 299, 587 A.2d at
901. However, a police officer's reasonable grounds are not
vitiated even where the information relied on by the pollee
officer in determining that reasonable grounds exist is ultimately
found to be untrue. ~,~, Keane v. DeDartment of
TranaDortation, 121 Pa. Commonwealth Ct. 220, 561 A.2d 359(1989).
In any event, the truth (or untruth) of why Officer Kurtz atopped
Molinaro's vehicle has no relevance in a refu8lll proceeding.
Wysocki; alasa. There were suff J.cient facts, even about the radio
communication, here to show that Officer Kurtz had relllonabl.
grounds to believe Molinaro was driving a vehicle while under the
influence of alcohol. ~,~, DeDartment of TranSDortation.
Bureau of Traffic Safetv v. Stewart, 107 Pa. Commonwealth Ct. 200,
527 A.2d 1119(1987).
12. Denied. This court' s decision is almost on all
/06
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COMMOtooIALTH
IN THB COURT 0' COMMON PLIAB 0'
CUMBBRLAND COUNTY, PBNNSYLVANIA
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94-0665 CIVIL TRRM
v.
DAVID PITRR MOLINARO,
Defendant
IN RBI PBTITION fOR STAY
ORDBR OF COURT
AND NOW, thia ~:l'1..l day of September, 1994, atter careful
condderatioll of Defendant'a Petition for Stay, and Plaintiff'l
anawer thereto, the Petition ia DINIID.
BY THB COURT,
/l
Matthew x. Haeckler, laq.
Aaailtant Counael
./ Traffic Sahty Section
~ Depart..nt of Tranaportation
~ 103 Tranlportation and Safety Bldg.
u1~' Harriaburg, PA 17120
1'~l\o..~ Attorney for CODlDlonwea1th
c\: "',eUx J. DeOuUio, .aq.
1509 Lawyera Building
Pittlburgh, PA l5219
Attorney for Defendant
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IN TilE ,COURT OF COMMoN VLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL 'fERM
COMMONWEALTII OF' PENNSYLVANIA,
I'laintiftl
Respondent,
No. 94~0665
Coder
Iasue NOI
VS.
DAVID PETER MOLINARO,
Defendantl
peti tioner.
'I'YPE OF PLEADING I
Petitioner's Brief
Filed on behalf of Petitioner
David Peter Molinaro
counsel of Record for'
this Party:
Felix J. DeGuilio
p,," 1.0. #10771
15Q9 Lawyors Building
pittsburgh, PA 15219
(412) 261-1972
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IN '1'tl1': l:OUH'!' Ot' l:OHHON l'L1':MI Of' l:UHllEHLAND COIIN'!'Y / PENNSYLVANIA
CIVIL 'l'ERM
COMMONWEAL'rII OF' PENNS'/LVANIA,
Plaintiff/Respondent
v.
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94~066~
DAVID PETER MOLINARO/
Defendant/Petitioner
l'.iI.'l'l'1'lQlim~. BijIEF'
IN'1'RODUC'1'lON
By letter dated January 21/ 1994, the pennsylva~ia
Department of Traneportation (DOT) informed Oavid Peter Molinaro
(Molinaro) that his driving privileges were suspended for one
year effeotive February, 25, 1994, for assertedly refusing to
submit to chemical testing. Molinaro filed a timely appeal to
this Honorable Court and a bench trial was conducted on May 9,
1994. At the close of DOT's case in chief Molinaro moved the
Court for a compulsory non-suit or for an order to sustain his
appeal from the DOT's order of suspension. The Court denied
Molinaro's motion. Molinaro rested and argued that DOT had
failed to prove the existence of a sobrioty checkpoint for it to
demand that Molinaro submit to a chemical test and that DOT
failed to meet its burden of proof that Molinaro had voluntarily,
knowingly, and intentionally refused to submit to chemioal
testing.
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DOT produoed two witneases, Officers Jeffery Dale Kurtz
(Kurtz) and Peter J. Beauduy (Beauduy).
Kurtz said that on December 16, 1993, [at] "Approximately
2118 in the morning, I had observed a graen lIonda Acoord Bedan
traveling north on South Market street. About that same time, I
received notification over the radio that vehicle had just failed
to stop for a oheokpoint. 1 then began to pursue after the
vehicle. We entered the Borough of Meohaniosburg, and a traffio
stop was finally initiated on the vehicle in the first block of
West Stouffer Alley (Tr.p.p.4,5). Mclinaro interposed a hearsay
objeotion to Kurtz's statement that he had "... failed to stop tor
a [sobriety] checkpoint" (Tr.p.5). The Court sustained
Molinaro'S hearsay objection, stating for the record, "Well, I
won't consider it for the truth of the statement as to whether
he, in fact, went through the checkpoint. * * * That portion of
the testimony is stricken" (Tr.p.5). * * * The testimony as to
what he [Kurtz] heard from another officer will not be oonsidered
by the Court for the truth of thoso out-of-court decJ.arations
(Tr.p.7) .
In connection with the asserted checkpoint, Kurtz was asked
if he or his partner had in their possession any written
authority authorizing a cheokpoint to be set up for stopping
motor vehicles in the area he wae p~trolling. Kurtz testified,
"Establishing the right? I have no knowledge of that, sir.
Those arrangements would be handled by the OUI coordinator who is
employed by the county (Tr.p.15)." Kurtz further testified that
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he had no knowledge it the oounty UUl coordinator Bent out
authority to Bet up a sobriety checkpoint. Q. When you
constantly say it would be handled by the OUl coordinator, can
you state for the record that you have no knowledgo whethor one
was sent out or not? lsn't ~hnt true? A. One what was sent
out? Q. Authority to set up n sobriety checkpoint. You have no
knowledge? A. That's correct, sir (Tr.p.16).
Rurtz testified that he had not received the licenso plate
number of the vehicle which had assertedly driven through a
checkpoint nor had he seen Molinaro drive through any asserted
checkpoint, "Q. Officer, you testified earlier, and the oounael
for the Commonwealth asked you, no lioense plate of the vehicle
was ever received by you, was it? A. No, there was not. * * .
You never received the license plate number of the vehiole Mr.
Molinaro was driving, did you? A. No, I did not. You never saw
Mr. Molinaro drive through any asserted sobriety Checkpoint? A.
No, I did not (Tr.p.p.1J,14)."
on its own motion the Court questioned Rurtz as to whether
Rurtz witnessed Molinaro drive through any asserted cheokpoint,
Q. so, did you see the checkpoint? A. I was in view of the
oheokpoint, yes. Q. All right. Were you in view of the
oheckpoint at the time you got the radio transmission that
someone had gone through? A. Yes, I was, your Honor. Q. Did
you see the Defendant's vehiole go through it? A. NO, I did not
speoifically see it go through it. (Tr.p.29).
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After Molinaro was stopped in the first block of West
Stouffer Alley Kurtz said, "As I approached the vehicle and beqan
to speak to him, I could detect the odor of an alooholic beveraqe
about his broath and alao noticed that he had glassy eyes. . . .
I asked him if he would perform some sobriety testa. After
having him exit his vehiole, I noticed that he had a slight weave
about him as he walked and as he would stand still. He stated
that he would not perform any tests under those conditions
(Tr.p.p.B,9). Asked about the conditions, Kurtz said, "tie made
reference to the foct that I had stopped him for no reason, that
he had went past 0 -- what he had stated was an accident. He saw
police carB and lights, but he had stated that no one tried to
stop him. ... After speaking to him a few more minutes and
asking him a second time if he would perform some sobriety tests,
at which time he again stated that he would not, I plaoed him in
handcuffs to transport him back to the checkpoint location in the
rear seat of my vehicle (Tr.p.9). Molinaro was not placed under
arrest until he arrived at the asserted checkpoint, tlUpon arrival
back at the checkpoint, he was removed from the roar seat of my
vehicle into an awaiting ambulanoe that we had at the checkpoint
location. · · · I advised him that he was under arrest for
driving under the influence of alcohol or a controlled substance
(Tr.p.10).tI There is some question as to the length of time that
Molinaro was restrained of his liberty and then placed in
handouffs before he was placed under arrest. Kurtz said that the
"... traffic stop was at 2119 and at 2140 I transported him --
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began to transport him baok to the oheokpoint location. 'I'hat'lI
approximately twenty minutes (Tr.p.25).H Kurtz said that "He
[Molinaro] was in handcuffs approximately nine minutes
('l'r.p.p.25, 26). Kurtz said that he searched Mol1naro'lI vehiole
"...under both seats and along the console of the oar (Tr.p.27)."
Back at the asserted cheokpoint Kurtz said that "[he] I
advised him that he was under arrest for driving under the
influence of alcohol or a controlled substanoe. I aRked him if
he would allow a blood sample to be drawn. He stated I refuse,
or something to that effect. I then advised him of the Implied
Consent Law of the Pennsylvania Vehicle code, 1547. He again
stated that he refused (Tr.p.lQ). Kurtz then said that he
"...read the sheet that we submit to PennDOT for a refusal
('l'r.p.ll)." According to Kurtz he advised Molinaro, "I:"lease be
advised you are now under arrest for driving under the influenoe
of alcohol or 11 controlled Bubstance pursuant to Section 3731 ot
the Vehicle Code (Tr.p.12)."
On cross examination Molinaro asked, "Q. SO you read it to
him twice, not once but twice? A. That's correct, sir. Q. You
never gave him another opportunity to take the test, did you,
after reading the form? A. After reading that form and asking
him to sign, which he refused, I did not. Q. Doesn't it state
on your [form] statement, (reading): Officer note, the refusal
to sign this form is not a refusal to submit to the chemical
test. You must stiil give the motorist an opportunity to test
after reviewing this form. It states that, does it not? A.
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That's correct, it doep. Q. You tootitLed, it X recall
correctly, that you never gave him that opportunity? A. 'fhat's
correct (Tr.p.16).
Questioned as to why he had searched Molinaro's vehicle
I<urtz said / "X smelled the odor of an alcoholic beverage while
securing his vehicle. I began to look through it for -- Q. what?
A. other alcoholic bevorages that may have been opened inside the
oar (Tr.p.26). I<urtz sRid that he had searched Molinaro's
vehicle, "...underneath both seats and along the console of the
oar (Tr.p.27)." No alcoholic beverages were found.
The testimony of Beauduy is at best equivocal. At one point
in cross examination he states, Q. Is it your testimony to His
Honor that you explained to Mr. Molinaro what I was asking your
partner (the difference between a civil proceeding and a criminal
proceeding and the two suspensions that accompany each
proceeding)? A. What X testified to is what I do based on my
experiences working for the DUX center part time and probably
coming up with (sic) more refusals because I'm at the center and
all I deal with is Durs. And r tell them -- this is my personal
discretion so that there's no question and they can't say later
that they didn't understand -- X tell them the difference between
(a criminal prosecution and a civil prosecution) -- that
regardless if they're convicted, they lose their license for a
year if they retuse. Q. Do you also explain to them that there
is a suspension that accompanies the DUI on the criminal side?
A. I do at the booking center, yes. Q. You explain that to
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the~ as well. uid you do that in this case? A. Not to this
Uefendart;.
At another point in cross examination ijeauduy states, Q.
Now, with reference to Mr. MOlinaro, 1 think, now, we have your
partner giving hiln one verbal warning fr.om his card
(Tr.p.p.39,40)? A. Correct. Q. I understand that he also
writes -- not only is there one criminal card, now, he read8 fr~m
the DL-26, you testified? A. That's correct. Q. Do I
understand that after your partner did that, that you, yourself,
went and then explained it a third time to hJm? A. I tried to
put it in -- letting him know that if he felt that the reason for
the stop was illegal, for whatever reason, and he could get the
conviction for OUI refused, that he still was facing a one-year
suspension. It's short sweet and simple. That's something that
I do, personally, so that there's no misunderstanding that if
they kick the OUI that they don't have to deal with PennOOT
either (Tr.p.41).
It is unclear from Beauduy's te6timony what exactly he did
say to Molinaro. It is clear that what Kurtz and Beauduy did say
was overtly confusing as a matter of law. Beauduy thought that
Kurtz had oonfused Molinaro and Beauduy tried to eliminate the
confusion but only compounded the contusion.
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ti'!'A'!'U'!'\lHY AU'!'1I01l !'!'Y ANU CMl!:; LAW
In 1b Pa.C.H.A. tiootion 6JOU(b) Pennsylvania permits a
"systematic" oheck of motor vehioles by police officers, say, at
sobriety checkpoints I
Seotion 6JOU(b) states I
Investigation by polico offioors
(b) Authority of police officer.--Whenever n police
offioer is engaged in a systematic program of checking
vehicles or drivers or hus artioulable and reasonable
grounds to suspect a violation of this title, he may
stop a ',ehicle, upon request or signal, for. the purpose
of checking the vehicle's registration, proof of
tinancial responsibility, vehicle identification number
or engine number of the driver's license, or to secure
such other information os the officer may reasonably
believe to be necessary to enforce the provisions ot
this title.
The people of Penrsylvania do not lose all their rights as
American citizens simply because Pennsylvania delineates a
drivers license a privilege. Batween the right of Pennsylvania
to make its roads safe from drunk drivers and the right of the
people to nn expectation of privacy and to be free from physical
and psychologioal intrusion from Pennsylvania lies a lair, a
midpoint so to speak, where the interests of Pennsylvania and the
people are balanced.
The SyllabUS in D~Ar~_~Prouse, 99 a.ct. 1391, 1393-94
(1979), states the facts and then delineates the lair that
balances the interests of a state and the peoplel
A patrolman in a pOlice cruiser stopped an
automobile occupied by respondent and seized marijuana
in plain view on the car floor. . . . The patrolman
was not acting pursuant to any standards, guidelines,
or procedures pertaining to document spot checks,
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promulgnted by oither hia deportment or the Htate
Attorney General.
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(b) The state'a interest in discretionary spot
checks as a means of ensuring the safety of its
roadWftrS does not outweigh the resulting intrusion on
the pr vacy and socurity of the person detained. . . .
(c) An individual operating or traveling in an
autoMobile does not lose all reasonable expectation of
privaoy simply beoause the automobile and its use are
subject to government regulation. People are not shorn
of all Fourth Amendment protection when they step from
their homes onto the public sidewalkl nor are they
shorn of those interests when they step from the
sidewalks into their automobiles. . . .
The SyUabus in HichiQl1n...DJlP~._.oL..e.tne Police v. sitz, 110 S.ct.
2481, 2482 (1990), states the necessary procedures for
establishing a sobriety checkpoint I
Petitioners, the Michigan state Police Department
and its Director, established a highway sobriety
checkpoint program with guidelines governing checkpoint
operations, site selection, and publicity.
In ~, 2487-88, the court stated:
In Qglaware v. Prouse, ~PIA, we disapproved
random stops made by Delawar.e Highway Patrol offioers
in an effort to apprehend unlicensed drivers and unsafe
vehicles. . . . We observed that the random stops
involved the "kind of standard less and unconstrained
discretion [which] is the evil the Court has discerned
when in previous casas it has insisted that the
discretion of the official in the field be
circumscribed, at le~st to some extent." . . .
. . . During the operation of the Saginaw county
""leckpoint, the detention of each of the 126 vehicles
that entered the checkpoint resulted in the arrest of
two drunken drivers. Stated as a percentage,
approximately 1.5 percent of the drivers passing
through the checkpoint were arrested for alcohol
impairment. In addition, an expert witness testified
at the trial that experience in other states
demonstrated that, on the whole, sobriety checkpoints
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resulted in drunkon driving Brroata ot Braund 1 percent
ot all motorista stopped. . . .
In Bum, the baLancoot tho stato's interest in
preventing drunken driving, the extent to which this
system can reasonably ~8 said to advance that interest,
and the dograe of intrusion upon individual motorists
who are brietly stopred, weighs in favor of the state
program. . . .
'1'he question of II knowing and oonsoiouB refusal to submit to
chemical testing was IIddressed in the Pennsylvania case of
l'.ollgs;L'l..-.c.gm.._.-1l_e~..-OI..-'1'rjmllll-L/ 634 A.2d 852, 854-855 (PII.
Cmwlth. 1993). 'rhe court statedl
On March 17, 1992, Pollock wau arrested and
oharged with driving under the influence of alcohol.
DOT notified Pollock that her driver's license would be
suspended for refusing to submlt to chemical testing
after her arrest and ahe appealed to the trial court
which held a hearing. DOT presented the arresting
officer, Bruce E. Keffor, who testified that he
responded to a radio call of a man aesaulting a woman
in a car. When the officer arrived at the parking lot
where the car was located, Pollock was driving out of
the lot when he pulled her over. He further stated
that he smelled a strong odor of alcohol, noticed that
her eyes were glassy and her apeech slurred, and that
she staggerod when she got out of her car and could not
stand in one place without losing her balanoe.
Officer Keffer testified that after Pollock failed
three sobriety tests, he arrested her and read from a
standard implied consent warning form which informed
POllock that her operating privileges would be
SUspended for one year if she refused to submit to
chemical testing and that she did not have the right to
consult with an attorney or anrone else before taking
the chemical test. Pollock to d Officer Keffer that
ahe understood the warnings but she refused to go to a
hospital for a blood test. Officer Keffer reminded
Pollock that she would lose her operating privileges
for one year if she did not consent to the blood test
and she again refused and the" signed a chomical test
rofusal form. . . .
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. . . When u licensoe appeals a license suspension
under section 1b41(b)(1) of the code, Uu~ must
establish before the trial court that the driver was
arrested tor driving under the influence of alcohol,
was asked to submit to a chemical teut, refused to do
so, and was specifically warned that refusal would
result in his or hsr lioense being suspended.
cartwri9ht v. Commonwealth, 138 Pa. Commonwealth ct.
325, 587 A.2d 909, appeal diniea, 528 Pa. 645, 60 A.2d
196 (1991). If POT presents sutfioient proof of the
legal elements required to sustain the suspension, the
burden shifts to the licensee to ehow that he or she
was physically incapable of making a knowing and
conscious refusal. . . .
. . . Here, the trial court implicitly found
credible the police offiaers' testimony that Pollock
said that she understood her rights and that she never
told the officers she did not understand the warnings
or that she was oonfused.
Our Pennsylvania supreme court, In Com. ~~, 615 A.2d
308, 309-10 (Pa. 1992), held that 75 Pa.C.S.A. 1547 (a)(2) was
unconstitutional, Justice Zappala writing for the oourt stated:
We hold that the chemical tests authorized br s
1547(a)(2) violate the Fourth Amendment of the Un ted
states constitutlon and Article I, S e of the
Pennsylvania constitution.
The court articulated that a search or requirement to submit to a
chemical test bases upon the mere fact that a motor vehicle was
involved in a motor vehicle aocident violates both the
Pennsylvania and United states constitutions (KQhl p.3l3). The
inoorporation of the Prouse principles for balanoing the
interests of Pennsylvania and its oitizens but omitting r.eference
to aita impliedly rules that fr~ comports with Article I
Section of the Pennsylvania constitution but ~ does not.
In KQbl, page 315, the court stated that 1547(a)(1) was
constitutional because it was not premised upon implied consent
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alone but that a pollee officer muat first have independent
probable oause to believe that a peraon was drivinq a Vflhiole
while under the influence of alcohol 1
In Quarlea, the superior Court oonoluded that the
oonlltitutional basie for a blood, urine, or ohemioal
test under ~ 1547(a)(1) was the existence of probablo
cause to believe that the suspect had been driving
under the influence of alcohol or a controlled
substance. The superior Court specifically rejected an
interpretation of the provision that would premise the
conlltitutionality of the provision on the driver's
implied consent alone. In adopting the construction of
"reasonable grounde" to mean "probable cause", tho
superior Court upheld ~ 1547(a)(1) as constitutional.
Section 3731 (a)(l), 75 Pa.c.s.A., defines the offense
of Q[iving under the influence of alcohol or controlled sub-
stance I
(a) Offense defined.- A person shall not drive, operate or
be in actual physical control of the movement of any vehicle 1
(1) while undor the influence of aloohol to a degree which
renders the person incapable of safe drivingl
DISCUSSION
DOT FAILtD TO PROVE THAT MOLINARO FAILED TO STOP FOR A SOBRIETY
CHECKPOINT
DOT failed to prove that Molinaro failed to stop for a
checkpoint, if a constitutional checkpoint was in existence on
December 18, 1993. 'rho COUI.t questioned Kurtz as to whether he
was in view of the assorted checkpoint when he received the radio
transmission that someone had gone through. Kurtz answered yes
but testified that he did not see Molinaro's vehicle go through
the checkpoint. The question then becomes whether the police oan
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stop n motorist without n leqRl basls and then demand thnt he
submit to chemioal testlnq or loso his liconse for ono year.
Borne mny nrgue yes and attempt to)ustify such a procedure upon
the ground that Molinaro 1s not entitled to due process
guarantees of the Fourth, Fifth, and Fourteenth Amendments to the
Federal constitution or Article I section I and Article I section
8 ot the Pel1nsylvania constitution because the instant matter is
a civil proceeding. To accept such an argument as the pUblIc
policy of Pennsylvania would be wrong and run counter to the
ordered concept of liberty understood to lie at the core of a
free society.
DOT FAILED TO PROVE TilE EXIS'l'ENCE OF A CONSTITUTIONAL SOBRIETY
CHECKPOINT
DOT fal led to prove that a "systematic" checkpoint wi thin
the meaning of 75 Pa.C.B.A. 630B and the gloss of Prouse and ~
was in place on December IB, 1993, for anyone to be the subject
for state intrusion.
If the court finds that a constitutional sobriety checkpoint
was in existence on December IB, 1993, and that Molinaro failed
to stop, as ordored by a police officer, the procedures employed
by DOT to demand chemical testinq of Molinaro violate Pollock.
Under the hOlding of EQllo&k a person must be placed under arrest
for a violation of section 3731 before a police officer may
demand chemical testing. Kurtz testif1ed that he deJllanded that
Molinaro first submit to chemlcal tosting and when Molinaro
"refused" Kurtz placed Molinaro under arrest for a violation of
75 Fa.C.B.A. 3731. Therefore, Kurtz did not follow the procedure
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of the atatute or the gloau of !',QH.QCK. Nor did Xurt~ ever
testify that in hia opinion Molinaro was under the influence of
aloohol to a degreo which rendered him incapable of aafe driving,
00'1' did not present sufficient proof of the legal elements
required to sustain tho suspension of Molinaro's lioense.
Further, section 3731 requires that an arrest under section 3731
may be made only where a person is undor the influence of alcohol
to a degree which renders the person incapable of safe driving.
~urtz only testified that Molinaro had an odor of alcohol on his
breath, had glassy eyes, and had a slight weave when he walked
and stood. ~urtz, never gave an opinion that Molinaro was
intoxicated to a degree which rendered him incapable of safe
driving. In point of fact, according to ~urtz, Molinaro did not
evidence any slurred speech, a behavioral pattern recoqnized in
pOllock to constitute legal grounds for requesting a motorist to
submit to chemical testing,
MOLINARO DID NOT ~NOWINGLY AND CONSCIOUSLY REFUSE TO SUBMIT TO
CHEMICAL TESTING
Molinaro's assorted fAfusal to submit to chemical testing
wap not a conscious and knowing refusal under Eollock. Kurtz
testified that he read to Molinaro from a card that he carried in
his wallet that if Molinaro did not submit to chemical testing
then his license would be suspended for one year. Kurtz then
testified that he read to Molinaro, from Department's form DL-26
(3-92), lines 1,2,3, and 4. DOT's form DL-26 (3-92) carries a
cautionary note to police officers, ~,' that a refusal tQ sign
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the torm is not a refusal to aubmit to the chemical test and the
officer must give the motorist nn opportunity to take the teet
after reviewing the form. Kurtz teBtitied that he never gave
Molinaro the opportunity to take the chemical test after
reviewing the torm (Tr.p.16). Further, Kurtz testitied that he
advised MoUnllro that he must submit to chemical testing under
1547 of the vehicle code (a civil proceeding) or lose his license
for one year and then advised him that he was under arrest for
drunk driving under 1531 (a criminal proceeding) of the code.
Beauduy testified that he was present when Kurtz gave Molinaro
the explanation of his rights. Notwithstanding the explanation
of rights given by Kurtz to Molinaro, Beauduy felt that a further
explanation was necessary. otherwJ.se he would not have attempted
to remove the overt confusion created by Kurtz's explanation of
rights and procedures employed in arresting Molinaro. If
Beauduy, a police officer, thought it was necessary to attempt a
further explanation to Molinaro of his rights it can not be
gainsaid that Kurtz's explanation created an overt manifestation
of confusion as a matter of law. Beauduy's attempt to remove the
contusion caused by Kurtz added further overt confusion as a
matter of law for Molinaro. ^ reasonable person, simJ.larly
situated as Molinaro, hearing one explanation about his rights
from Kurtz and a second explanation from Beauduy would not have
the means to discern who or what to believe concerning his
rights. Molinaro did not knowingly and consciously refuse
chemical testing.
15
CUNCLUtiWN
f'Ol' the rOBBonB q i von above tho Court should sUBtain
Molinaro's appeal trom DOT'B order of suspension.
Respectfully SUbmitted,
r~~" 17 1--/
\,~ ~
Felix J. DeGuilio
^ttorney tor Defendant
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JUL 11
COMMONWt:.uTtI ()t' ,t:NN!lnV ANIA
m:PAIUMt:N'r ()t' THAN!lPOH'fATION
Office of Chief Counael
103 Tranaportation and Safety Buildinq
Harriaburq, Pennsylvania 17120
July 11, 1994
I'" ..I'U "'rI" ro
Honorable J. Wealey Oler, Jr.
1 Courthouse Square
Carliale, Pennaylvania 17013
Rei David Peter Molinaro No. 94-0665
Dear JUdge Olerl
A hearinq in the above referenced matter was held on May 9,
1994. At that hearing, the Department presented evidence throuqh
the testimony of Officers Kurtz and Beauduy that Mr. Molinaro had
been arreated for drivinq under the influence, requested to 1I1bmit
to a chemical test, refused the chemical teat and was warned that
hia operatinq priviloges would be suspended if he refused the test.
The motorist presented no evidence. At the conclusion of the
hearinq, a briefing schedule was established. Please accept this
letter aa the Departments brief in this matter. This brief is
beinq filed late as a result of the fire in the Transportation and
Safety Bulldinq. I respectfully apologize for the delay and
appreciate the Courts patients.
In his brief, Molinaro raiaes the followinq issuesl
1. The Department failed to prove the existence of a
constitutional aobriety check point.
2. The Dep&rtment failed to prove that Molinaro
failed to stop for a sobriety check point.
3. Mr. Molinaro di,d not knowinqly and consciously refused to
lubmit to chemical testing.
The law clearly establishes that the Department's burden i. to
II.. Mlklno IIH'PPI~ ...
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prove that the motoriat Will arreated tor dr1v~ng under the
influenoe of alcohol or a oontrolled aubatance, he waa reque.ted to
aubmi t to ohemioal tlating, he refuaed to submit to chemical
teating, and he waa warned that hia operating privilege. would be
IUlpended if he ~.tused the chemical teat. papartment of
Tran.pQrtation. Bureau of Traffic Safety v. Oleann.ll, ~21 Pa. 242,
SS5 A.ad 873 (1989.. The burden then shifta to the 1lI0toriat to
prove that he waa not capable ot making a knowing and conscioua
re tuad . llS .
Motoriat'a argument, that the Department tailed to prove the
exiatence ot the conatitutional sobriety check point, are not
relevant to thia inquiry and exceeds the acope of the inquiry of
thia proc.eding. This issue was addressed by the Pennsylvania
supreme Court in Department of Tranaportation v. Wyaocki, S17 Pa.
17S, S35 A.2d 77 (1987). In Wysocki, the motorist appealed a
auapenaion which had reaulted from an alleged unconstitutional
i'oad blook. The Supreme Court upheld the suspension noting that
the conatitutionality of the road block had no bearing on the
reaolution of a auapension based on a refusal to take a chemical
teet. The proper inquiry is whether there was an arrest and not
into the legality of the arrest. The supreme Court held that even
if the initial atop was illegal, that would not necessarily prevent
. auapenaion of . license where there was a refusal to submit to a
chemical teat. The request to submit to a chemical test would only
be improper if the officer's request was not supported by a
reaaonable beliet that the person was driving under the influence
of alcohol. llS. See also Glass v. DeDartment of Transportation.
Bureau ot Traffio Safety, 460 Pa. 362, 333 A.2d 768 (197S).
There oan be no dispute that the Officer. had reasonable
grounde to believe that Mr. Molinaro Will driVing under the
influenoe of alcohol. The reasonable grounds teat is not very
demanding. The test is whether a reasonable person in the position
of the offioer, viewing the facts and circumstances as they
appeared at trial, could have concluded that the motorist was in
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actual phyaical control of the movement of the vehicle while under
the influence of alcohol. Department of Transportation. Bureau of
,
Qriver Licenaina v. Terreri, 114 Pa. commonwealth ct. 208, a38 A.2d
639 (1988). The eKistence of other eKplanations does not negate
the reaaonablenes. of the officer'. belief. Keane v. Department of
Tranaportation, 127 Pa. Commonwealth ct. 220, a61 A.2d 3a9 (1989).
Moreover, the arreating officer's reaaonable grounds will not be
rendered void even if it ia discovered at a later time that hia
belief waa incorrect. ~. The officer's belief muat merely be
objectively reaaonable in light of the surrounding circumstancea.
~.
In this case, the officer received a report that a oar
matching Mr. Molinaro'S car had run a DUI check point. After the
vehicle was atopped, the officers observed physical manifeatationa
indicating that the motorist was under the influence. Theae
physical manifeatations included glassy eyes, an odor of alcohol,
and the motorist staggering when he walked. Additionally, the
motorist refused to perform field sobriety tests. Under the
circumstances, it was more than reasonable that the officera
believe that Mr. Molinaro was driving under the influence of
alcohol.
Molinaro made a hearsay objection at the hearing and now
argues that the Department failed to prove that Mr. Molinaro failed
to stop at the sobriety check point. However, the Department doea
not have the burden to prove that Mr. Molinaro did in fact fail to
stop at the sobriety check point. This evidence was offered as
evidence of the arresting officer's state of mind and to show the
reasonableness of his actions. It is well settled law that an
officer may teatify to an out of court statement for the purpoae of
proving the atat of mind of the officer and to eKplain hia conduct
in response to the statement. Patterson v. commonwealth, 138 Pa.
Commonwealth ct. 292, 587 A.2d 897 (1991). Clearly this ill
evidence that the offioer acted reasonable in pursuing Mr.
Molinaro's vehiole and was a circumstanoe which the offioer oould
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oon.ider when he reasonably concluded that Mr. Molinaro was drivin9
under the intluence.
Nor can it be diaputed that Mr. Molinaro was arrested. The
etandard tor an arreat aet forth in Department of TranaDortation.
Bureau of Driver Licenainq v. McGlynn, 147 Pa. Commor.wealth ct.
4~4, 611 A.2d 770 (1992) and Department of Tran.portation. Bur~
QL. priver Lioeneina v. Jonea, 120 Pa. Commonwealth ct. 88, 547 A.2d
877 (1988.. The officera must merely ahow that there was ouatody
and oontrol over the motoriat. Molinaro was hand cuffed, plaoed in
the back ot the police oar, and transported baok to the road block
aite. It ia olear that the motorist was not free to leave. Such
aotiona are oustody and control suffioient to establish an arrest.
Furthermore, the motorist was expressly told that he was under
erreat efter he arrived back at the road block site.
The testimony ot the ofticers clearly established that the Mr.
Molinaro waa repeatedly asked to submit to a chemical test. He waa
warned that hia operating privileges would be suspended if he
retused the teat on numerous occasions. The offioers explained
that hia right to speak to an attorney and to remain silent did not
apply to the ohemical testing procedure and that he had no right to
.peak to a lawyer or anyone else prior to taking th. chemioal test.
The otficera went to great pains to make sure that Mr. Molinaro
underatood what was required of him and what would happen if he
refu.ed the teat. In spite of the oftioer'. laudable etforts to
explain the implied consent law and to get Mr. Molinaro to take the
teat, Mr. Molinaro repeatedly refused to take the test.
Inasmuch as the Department carried its burden of proof, the
burden ahifted to the MotoriQt to prove that he was not capable of
making a knowing and conscious refusaL 0' conneU . In this case,
Coun..l for the motoriat has suggested that Mr. Molinaro may have
b.en confua.d because more than one person explained that Mr.
Molinaro would lose his license if he did not take the test and
that h. had no right to speak to an attorney or anyone else before
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Pa. Reporter, 481-634 1..2d l)Qoulllent.
Results only
Query I "liQense .uapension" and "oheokpoint"
CITATION COURT/YEAR TITLE
~18 A.2d 1254 CPa.cmwlth. 1992) Com. v. Lutz
19 A.2d 984 CPa.super. 1986) COlli. v. Leninaky
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Molinaro'a o.r had p....d throu9h . checkpoint without .toPpin9 a.
requir.d. OfUcer Kurtz pur.ued Molinaro for thr.. block. into the
lorou9h of M.ohanic.burq where a .top waa initiat.d in the fir.t
blook of W.at stouffer Alley.
While talkinq with Molinaro, Offic.r Kurtz detected the
odor of an .lcoholio b.v.raqe on Molinaro" breath and noticed that
Molin.ro had qlaaay ey.a. Ofticer Kurtz aaked Molinaro to p.rform
aome fi.ld aobriety teata. Aa Molinaro .xited hia v.hicle, Officar
Kurtz noticed that he weaved aa he walked and 8tood. Molinaro
refu8ed to p.rform the field aohriety teats, atatinq that he had
been atopped for no reason. After Molinaro r.fuaed the aecond
requeat by Officer Kurtz to perform field aobriety teata, h. waa
placed in handcuffs and tranaported in the police car to the
checkpoint location.
Molinaro was placed inside a waitinq ambulance upon hia
arrival at the checkpoint. offic~r Kurtz then advi.ed Molinaro h.
waa under arrest for driving under the influence of alcohol and waa
aaked to submit to a blood test. Molinaro r.fus.d to submit to a
chemical teat for the purpose of determininq blood alcohol cont.nt.
Otfic.r Kurtz n.xt advised Molinaro of the implied con.ant
r.quirementa ot the Code, indicating that Molinaro'a operatinq
privileqe would be suspended for a year tor refu8al to .ubmit to
the ch.mical teat. Molinaro was a180 advi.ed that hi.
con.titutional riqht. did not apply to ohemical te8tinq and that h.
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had no ~19ht to .peak to an attorney or anyone elee prior to tak1n9
the chemical te.t. Molinaro aga1n refuaed to aubmit to t~e blood
teat.
Offlcllr I(urtlll then read Molinaro the chemical teet
warninga ccntained on the Department'a DL-2~ fcrm.2 Molinaro aga1n
refuaed to aubmit to the blood teat and alao refuaed to Dign the
DL-2~ f011ll.
No Miranda' warninga were given.
A refuaal waa
reported to the Department.
By notice dated January 21, 1994,
Molinaro'a operatinq pt'ivllege wall auapended for one year aa a
reault of hia retusal to submit to chemical teatinq on December 18,
1993.
Molinaro filed a timely appeal with the trial court on
February 14, 1994.
A ds ~ hearing was held betore the trial court on May
9, 1994. At the hearinq, the Department preaented the teatimony of
two police cfficers, Officer I(urtz and Officer Peter J. Beauduy.
Both officera testified as to the eventa surroundinq the refuaal
Which occurred on December 18, 1993.
Molinaro preaented no
evidence on his behalf. By order dated Auquat 9, 1994, the trial
2The warninqs ccntained on DL-26 torms have been held to be
aufflc1ent notice of suapension under DeDartment of Tranallortation.
Bureau of Traffic Safety v. o'Connell, ~21 Pa. 242, ~5~ A.2d 873
(1989) and ita proqeny. See Leckenbv v. Dellartment of
Tranallortation. Bureau ot Driver Licenaina, 160 Pa. commonwealth
Ct. 26, ~34 A.2d 670 (1993), aDpeal denied, ~36 Pa. 632, 637 A.2d
292 (1993) 1 Department of Transllortation. Bureau of Driver
Licenaina v. Crowley, 160 Pa. Commonwealth ct. 324, 634 A.2d 826
(1993) .
'384 U.S. 436 (1966).
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court denied Molin.ro'. .t.tutory appe.l. Molinaro now appe.la
that d.te~in.tion to this Court.4
Of the i..ue. pre.ented by Molin.ro in hi. brief to this
court, three i..ue. .re properly ripe for our con.ideration.' We
,uD.rlze the three i.sue. for our conaideration .. tollows.
Fir.t, Molin.ro a..ert. th.t the existence of a constitutionally
,uff1cient .obriety oheckpoint w.. not e.tabl1.hed.
Ssoond,
Molinaro argue. he did not knowingly and consoiously refu.e to
.ubmit to chemioal testing. Finally, Molinaro oontend. the trial
40ur .oope of review in operating privilege .u.pen.ion 0....
i. limited to determining wheth.r the finding. ot the trial court
are .upported by oompetent ev idenoe, whether there h.. be.n .n
erroneou. oonclusion of law or whether a manife.t .bu.e of
di.oretion wa. oommitted. Wheat1ev v. DeDartment Df
Tran'DortatiDn, 104 Pa. Commonwealth ct. 171, ~21 A.2d ~07 (1987..
'In the argument portion of his brief, Molinaro pre..nt. four
i..ue. inclUding whether he knowingly and oon.oiou.ly r.fused to
.ub~it to ohemical testing, whether he wa. properly placed under
arre.t prior to the request to SUbmit to ohemioal te.ting, wheth.r
the Department failed to prove Molinaro drove through a cheokpoint
without .topping a. required and whether the Department tailed to
prove the existenoe of a constitutionally valid Checkpoint. We
will treat the latter two i..ues a. one, namely of wh.ther the
exi.tenoe of a oon.titutional1y valid oheckpoint wa. e.tabli.hed
whioh is the i..ue pre.ented to the trial oourt and which ie the
i..ue properly preserved for our oonsideration. See Pa. R.A.P. 302
(a) .
Molinaro pre.ents three issues in hie Stat.~ent of
Que.tion. Involved including the is.ue of knowing and con.ciou.
refu.al, an ie.ue of whether a penn.ylvania oitirllen u.ing the
highway. of Pennsylvania losee all right. to an expectation of
privacy or guarantee. of the Con.titution once he get. behind the
wheel of hi. c.r, and an i..u~ of whether an officer mu.t have
rea.onable ground. to believe he Will driving under the influence to
a degree whioh rendered him inoapable of driving .afely .nd to then
place him under arre.t before requesting ohemioal te.ting. Th..e
i..ue. will be viewed a. the same three i..ue. pre.ented in the
argument .ection and will be considered thu.ly.
4
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oourt erred in detel'lllininv he wa. "arre.ted" pl'1or to the reque.t
to .ub.it to ohemioal teatin9.
Initially, we note that in order to auatain a .u.penaion
under the COde, the Department muat eatabHah that the dl'1ver
involved I 1. Will arreated for drivinv under the influenoe of
aloohol 2. wa. aaked to aubmit to ft chemical teat 3) refu.ed to do
.0/ and 4) wa. .peoifically warned that a refuaal would reault in
the auapenlion of operating pl'1vUege.. Bell v. DlIlpartment of
'franaportation. Bureau of Driver Licen.inq, 147 Pa. Commonwealth
ct. 157, 607 A.2d 304 (1992). In thia case, the requiaite elementa
were eatabli.hed.
A. to the isaue ot the constitutionality of the
checkpoint, a. noted by the trial court, the Supreme Court of this
commonwealth haa determined that the leqa1ity of ft checkpoint i.
j.rrelevant for purposes ot a license suspension proceeding. The
propoeitlon Will estllbHahed in Department of TranaDorhtlon v.
Wvaocki, 517 Pa. 175, 535 A.ad 77 (1987), that tho legality of a
licen.ee'a initial traffic atop or arrest i. irrelevant for
purpo.ea of determin~ng whether a licenaee's operating privilege
.hould be auspended under Section 1547. ThUS, the determination of
the trial court that the power of the Department to auapend a
driver'a Hcenae tor Il test refu8Ill is not dependent on the
1llgaHty ot the Ilrrest, was proper. 1.lL. See opinion ot trial
court at p. 8.
5
,
,
Revudin9 Molinaro'a oontention thet hie refuaal to
,ubmit to ohemioal teatinq waa not knowin9 and oonaoiou., the law
ia a. followa. Once the Department haa .atiafied ita initbl
burden and e.tabliahed a prima faoie oa.e to aupport an operMtinq
privUeve au.penaion, the burden of proof ahitta to the motoriet to
prove by oompetent evidenoe that the refuaal waa not knowin9 or
aon.c1ou.. ~,rtm.nt of Tranaportat!on. Bur_au of Qriv.r
Lioendna v. Moaa, 146 Pa. COD\lllonwealth Ct. 330, 6015 A.2d 12711
(1992., apDea1 denied, 532 Pa. ~48, 614 A.2d 1144 (1992).
Herein, the reoord eatabU.hea that the trial oourt
properly determined that the Department met ita burden but that
Molinaro failed to aatiafy hiB burden of proof. 6 Offioer Kurtz
te.tified that he advised Molinaro he was under arreat for DUl and
aaked him to aubmit to a blood test on several ooca.ions. Molinaro
clearly refused to aubmi t to the blood teat on eaoh oocaaion a
requeat waa made by Offioer Kurtz. To the oontrary, Molinaro
preaented no te.timonial or other evidenoe on hie own behalf.
Molinaro'a bare aasertiona of confu.ion are insuffioient to make
out hi. burden of proving that hia refusal Will not knowinq or
conacioua.
See DeDartment of TransDortation. Bureau of Driver
Lioenaina v. Tomczak, 132 Pa. commonwealth ct. 38, 1571 A.2d 1104
(1990).
'The i.aue of whether a motoriat met. the requi.ite burden of
proof i. fully reviewable by this Court. HQaa.
6
.
,
rinally, a. to the b.u. of "erre.t", under the Code it
i. .uttioi.nt that . lio.nsee b. under the ou.tody and oontrol ot
the arr..Ung offioer in order to oon.Utute an "arre.t". Welcome
v. n.partm.nt of Tran,oortatiDn. Bur.au of Driv.r Lic.n.i~9, __
Pa. COllllDonw.alth ct. _, 647 A.2d 971 (11194.,
D..p.rt.lIl,n~ of
~ran.port..t.io~. BUJ"..u at Driv.r Lic.naina v. Jqn.., 120 P..
Cummonwealth ct. 88, ~47 A.2d 877 (1988), ~~p,.l d.ni~d, ~22 Pa.
~79, 5~9 A.2d 40 (1989). The proper i..ue b.com.. wh.ther, und.r
the totality of the oiroumstances, the re8l0nable impression of the
lic.n.ee .hould have been that h. or .he were ,ubj.ot to the
ou.tody and oontrol of the officer at the time the chemioal te.t
wa. refu.ed. We100mel Jone..
In this oase, Officer Kurtz took Molinaro into ou.tody,
plaoed handoutt. on him, placed him in the polio. vehiole, then
tran.ported him to the DUI cheokpoint and e.corted him to the
ambulanoe whioh was pre.ent for the purpo.. ot taking blood
.ample.. The trial oourt correotly determined that Offioer Kurtz
.x.roi.ed .ufficient custody and oontrol over Molinaro in
.utfioient manner as to effectuate an "arre.t" for all intent. and
purpo....
Aocordingly, on the bad. of
the trial oourt i. affirmed.
the ord.r ot
IN THE COMMONWEAurH COURT or PENNSYLVANIA
DAVID PITIR HO~INAROi.
Appel ant
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v.
No. 2207 C.D. 1"4
COMMONWIALTH or PENNSYLVANIA,
DIPARTHINT or TRANSPORTATION,
IUREAU or DRIVER LICENSING
ORDER
AND NOW, th1.
6th
day of
Marah
, U'5,
County ia
the order ot the Court of COllllllon Plea. of Culll1:lerland
atUmed.
Senior JUdge
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