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GEORGE KABUSK
A~"I!iI.Jnl Cnunst.'l . Moler Vl'hich.' ~cUnn
OHlct.' of Chid Cnun~d
DEPARTMENT OF TRANSPORTATION
Commonwealth of Pennsylvania
103 Tr,1nsporlaUon & Salety BulldloR
HarrlsburR. rennsylvanla 17120
Fa., (717) 772-2741 Telephone: (717) 787-28311
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CHEMIC..I, TESTING WARNINGS AND REPORT 01' ~", L '
REFUSAL 11', SUBMIT TO CHEMICAL TESTING AS
AUTHORIZED BY OF THE VEHICLE CODE
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SECTION 1547
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Depoft/Mftl of Tllnlponlhon
Bura... of Driver Lanllng
P.O. Bo. 2253
H.rrilbu'll, PA 17105
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V"'llcle Code. and th.,. .." "llonlblu g,oundl 10 btl..ve that 1M AboVe rno1OnU had bMn drlwtng. Opeflbng Of 6n ac&u" phyllClll CiOfWoI or
Ihe movement 011 molot .etude "Me unde, "'Imnuanea 0' .Icohol 01 I aonlrOled lublllnce 01 bolh
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THIS FORM MAY BE DUPLICATED
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PATRICK F. lAUER. JR
Allorn.) a' 1..11
210M \I.r~tl Slfrcl
.\/th' Ih.llldlnr.
Camp Hill. 11,\ 17nll
,7171 76.1.UHlU
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION
,BUREAU OF DRIVER LICENSING,
APPELLEE
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vs.
LAWRENCE T. lfAMMOND,
APPELLANT
.
.
.
.
NO. tJ s - 388 2. e~~ 1:?~
Date:
I LL(4 -e o.t'/L.
7J "
ORDER OF COURT
AND NO.. thi. ~ "Y of ~. i'.5. b.... "00
Ap"".ot.. A....,. · ."rio. 'h." b. h.id on ".. d.y of
O'fi:t,c · I.... i. courtron'I-;::.t '1"uu 0'01"", .&. ..
at the Cumberland COunty COurthouse.
.hi. Ap"" 'h." eot .. . ....r...... of .oy ,u...o.ioo or
revocation of Appellant's license pending the hearing.
JUl ZJ II 14 PH '95
.,
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
APPELLEE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO.
LAWRENCE T. HAMMOND,
APPELLANT
.
.
.
NOTICE OF APPEAL
1. Appellant, Lawrence T. Hammond, is an adult individual whom
currently resides at the 203 West Main Street, Cumberland County,
Pennsylvania.
2. Appellee, Commonwealth of Pennsylvania, Pennsylvania Department
of Transportation, Bureau of Driver Licensing, Harrisburg, Dauphin
County, Pennsylvania, 17123, is a state agency.
3. Your Appellant was arrested for allegedly operating his motor
vehicle while Driving Under the Influence on May 28, 1995, at 1933
hours by Patrolman William A. Burger, Jr., of the Silver Springs
Township Police Department.
4. Your Appellant was arrested on Silver Spring Road, Cumberland
County, Pennsylvania.
5. Your Appellant was notified on or about June 21, 1995, that
his license was being suspended for a period of one year which
would go into effect July 26, 1995 at 12:01 a.m.
A true and
correct copy of the Notice is attached at Exhibit "A".
6. Your Appellant denies that he refused to submit to breath,
blood or urine testing and that said suspension is improper and
unwarranted.
L_
7. The police officer lacked probable cause to stop the
Defendant.
B. The police officer lacked probable cause to arrest the
Defendant.
9. The police officer failed to properly inform the Defendant of
his rights pursuant to the implied consent law.
WHEREFORE, your Appellant respectfully requests your Honorable
Court to grant him a hearing and deny the Commonwealth's request
that his license be suspended and your Honorable Court to stay any
and all suspensions.
Date:
)r
Patrick F. Lauer, Jr., Esquire
2l0B Market Street
Camp Hill, PA 17011
(717) 763-lBOO
Supreme Ct. ID' 46430
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the
foregoing Appeal upon the person and in the manner indicated
below, which service satisfies the requirements of the
Pennsylvania Rules of Criminal Procedure, by depositing a copy of
the same in the united States Camp Hill, Pennsylvania, through
first class certified mail, prepaid and addressed as follows:
Pennsylvania Department
Room 103
Transportation & Safety
Harrisburg, PA 17120
of Transportation
Building
/?f;cf;1 L:.
Patrick F. Lauer, Jr., Esquire
2108 Market Street
Camp Hill, PA 17011
(717) 763-1800
Supreme Ct. 10# 46430
Date: 1!; r 9' J-
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA l7l23
JUNE 21, 1995
LAWRENCE T HAMMOND
203 W MAIN Sf
MECHANICSBURG PA 17055
951528433001024 001
Ob/14/1995
15769198
09/21/1950
Dear Motorist:
As a result of your violation of Section 1547 of the Ve-
hicle Code. CHEMICAL TEST REFUSAL on OS/28/l995, your driving
privilege is being SUSPENDED for a period of 1 YEARCS).
In order to comply with this sanction yoU are required to
return any current driver's license, learner's permit and/or
temporary driver's license Ccamera card) in your possession
no later than the effective date listed. If yOU cannot com-
ply with the requirements stated above. yOU are required to
submit a DL16LC Form or a letter acknowledging the sanction
of your driving privilege. Failure to comply with this no-
tice shall result in this Bureau referring this matter to the
Pennsylvania State Police for prosecution under SECTION
l57lCa)C4) of the Vehicle Code.
Although the law mandates that your driving privilege is un-
der suspension even if you do not surrender your license,
Credit will not begin until all current driver's license
productCs). the DLl6LC Form. or a letter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE DR ACKNOWLEDGEMENT.
WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT
WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE.
YOU WILL NOT BE GIVEN CREDIT TOWARD SERVING THIS SANCTION.
Effective Date of Suspension: 07/26/l995. l2:0l a.m.
********************************************************************
IWARNING: If yoU are convicted for driving while your license is I
Isuspended, the penalties will be: not less than 90 days imprison-I
Iment and a $1,000 fine and an additional 1 year suspension. I
********************************************************************
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I \ EXHIBIT A
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PATRICK F. l.AUER. JR
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
APPELLEE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
NO. 95-3882 CIVIL TERM
LAWRENCE T. HAMMOND,
APPELLANT
.
.
.
.
AND NOW,
. ORDER OF COURT
this t 2 i day of (l ( t, L..-
, 1995, based upon the
Appellant's Motion for a Continuance, a Hearing shall be held on
)d day of .'c', <', ,,,/,_,~ , 1995, in Courtroomll ,', at 7.('~(.'
o'clock ft . m. at the Cumberland County Courthouse.
Date:,^,""1' /.cJ. /'i';~J'
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
APPELLEE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 95-3882 CIVIL TERM
LAWRENCE T. HAMMOND,
APPELLANT
MOTION FOR CONTINUANCE
1. Appellant, Lawrence T. Hammond, is currently scheduled for an
hearing in regard to the above matter on Monday, October 16, 1995,
at 9:00 a.m.
2. Due to a scheduling conflict, Appellant's defense counsel is
respectfully requesting a continuance of this hearing, and that a
hearing be rescheduled on this matter.
3. George Kabusk, Department of Transportation, has no objections
to a continuance.
WHEREFORE, Appellant's defense counsel respectfully requests
your Honorable Court to grant a continuance of this hearing.
Respectfully Submitted:
Date:
/ () FC1~ s: (~
;-:7 ---"r7
. - ---..
Patrick F. Lauer, Jr., Esquire
2108 Market Street
Camp Hill, PA 17011
(717) 763-1800
Supreme Ct. lOt 46430
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the
foregoing Appeal upon the person and in the manner indicated
below, which service satisfies the requirements of the
Pennsylvania Rules of Criminal Procedure, by depositing a copy of
the same in the united States Camp Hill, Pennsylvania, through
first class certified mail, prepaid and addressed as follows:
Pennsylvania Department of Transportation
Room 103
Transportation & Safety Building
Harrisburg, PA 17120
Date:
,/ -7'-75
/?'- - / ~'-~I
Patrick F. Lauer, Jr., Esquire
2108 Market Street
Camp Hill, PA 17011
(717) 763-1800
Supreme Ct. lOt 46430
By the court,
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING,
Appellee
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v.
.
.
CIVIL ACTION - LAW
LAWRENCE T. HAMMOND,
Appellant
.
.
95-3882 CIVIL TERM
ORDER OF COURT
AND NOW, this 7th day of December, 1995, upon
consideration of the Petitioner's appeal from license
suspension, and following a hearing, the Court finds that the
Petitioner validly and effectively refused to submit to a
chemical test to determine the alcohol content of his blood, and
the appeal is denied.
.1.
GEORGE KABUSK, ESQUIRE
For the Appellee
MATTHEW ESHELMAN, ESQUIRE
For the Appellant
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION, BUREAU OF
DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
v.
CIVIL ACTION - LAW
.
.
LAWRENCE T. HAMMOND,
Appellant
:
95-3882 CIVIL TERM
IN RE: LICENSE SUSPENSION APPEAL
proceedings held before the Honorable
J. WESLEY OLER, JR., Judge,
cumberland County courthouse, Carlisle, pennsylvania,
on December 7, 1995, commencing at 9:30 a.m.
in Courtroom No.2.
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APPEARANCES:
GEORGE KABUSK, ESQUIRE
For the Appellee
MATTHEW ESHELMAN, ESQUIRE
For the Appellant
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I N D E X TOW I T N E SSE S
FOR THE APPELLEE DIRECT CROSS
William Burger, Jr. 4 11
Gerald Steig1eman 23 27
FOR THE APPELLANT DIRECT CROSS
Lawrence Hammond 29 42
2
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1 December 7, 1995
2 Courtroom No. 2
3 9:30 a.m.
4 THE COURT: This is the time and place for a
5 hearing on the license suspension appeal of Lawrence T.
6 Hammond. We'll let the record indicate that Mr. Hammond is
7 present in court with his counsel, Matthew Eshelman,
8 Esquire, and the Commonwealth today is represented by George
9 Kabusk, Esquire. Are counsel ready to proceed?
10 MR. KABUSK: Yes, Your Honor.
11 MR. ESHELMAN: Yes, Your Honor.
12 THE COURT: Please go ahead.
13 MR. KABUSK: Your Honor, this is an appeal
14 from a section 1547 appeal. By official notice dated and
15 mailed June 21st, 1995, the Department notified the
16 motorist, Lawrence T. Hammond, operator's license number
17 15769198, that as a result of his violation of section 1547
18 of the Vehicle Code relating to chemical test refusal on
19 5/28/95, his driving privilege was being suspended for a
20 period of one year. The Commonwealth now calls Officer
21 Burger.
22 Whereupon,
23 WILLIAM A. BURGER, JR.
24 having been duly sworn, testified as follows:
25 DIRECT EXAMINATION
3
'.....
,,,....-..
1 BY MR. KABUSK:
2 0 Officer Burger, for the record, please state
3 your full name and spell your last name.
4 A My name is William A. Burger, Jr. spelling
5 of the last name is B-u-r-g-e-r.
6 0 Where are you employed?
7 A I'm employed by the Silver spring Township
8 Police Department. I serve with the rank of patrolman.
9 0 How long have you been so employed?
10 A I've been employed by Silver spring Township
11 approximately seven years. I've been a police officer for
12 nine plus years.
13 0 During the course of your official duties,
14 did you have occasion to investigate an alleged incident of
15 DUI on or about May 28th, 1995?
16
17
18
19
20
21 information from Sergeant Olsen of the Camp Hill Police
22 Department that there had been a hit-and-run accident and a
23 vehicle had fled the scene. The description was given as a
24 small red sports car that was traveling south on Routes 11
25 and 15 with damage to the front end.
A Yes, sir, I did.
0 Could you please tell the Court about that
incident?
A Yes, sir. On -- at a particular date on
5/28/95, at 725 hours, Cumberland county control related
4
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1 At 727 hours on this particular date,
2 Cumberland County Control notified Hampden Township Police
3 via the police radio that a fire chief was following a red
4 vehicle with front-end damage that had just turned on Route
5 11 south from Routes 11 and 15 in the area of where this
6 accident was reported.
7 At this particular time, county Control then
8 said that this fire chief had lost sight of the vehicle at
9 Route 11 south in the area of Orr's Bridge. At this
10 particular time, I was sitting on Route 11 at what is known
11 as the Tri-state Electric Building. Tri-state Electric is
12 no longer in there. However, that's where I was sitting.
13 I viewed a small red sports car that was
14 traveling south on Route 11, made a left-hand turn onto
15 silver Spring Road. This vehicle did, in fact, have
16 moderate front-end damage, the hood area and one headlight.
17 I activated my emergency lights, and I stopped the vehicle
18 at 733 hours in front of 524 silver Spring Road.
19
The car was a Toyota Celica. It was red in
20 color, and it displayed Pennsylvania registration ALD 7816.
21 I approached the driver, who was the sole vehicle occupant,
22 and requested his driver's license and vehicle registration.
23 During this contact with the operator, the odor of an
24 alcoholic beverage was clearly emanating from within the
25 vehicle.
5
,-.,
1 During this time, the male's movements were
2 slow and deliberate as he looked for his driver's license
3 and vehicle registration. I also noted red, glassy
4 bloodshot eyes and slurred speech. I had asked the male if
5 he had been in an accident to which he originally when I
6 asked that question, he hung his head and looked the other
7 direction away from me.
8 I again asked him the question, and the male
9 said, yes, in Harrisburg. I asked him how long ago this
10 accident occurred, and his reply was, a while. I further
11 asked the male if he was injured at all or if he had hit his
12 head in this accident. He answered, no. The male further
13 said the accident was in the parking lot of a bar; however,
14 he did not recount the name of this bar.
15 The individual did, in fact, produce a
16 driver's license to me, being one Lawrence T. Hammond, who's
17 the gentleman seated next to defense counsel. At
18 approximately that time, Sergeant steigleman arrived on the
19 scene. When sergeant steigleman arrived on the scene, I
20 went back to my patrol car and radioed sergeant Olsen from
21 camp Hill who advised me that he was unable at that
22 particular time to locate the other vehicle that was
23 involved in the accident.
24 He advised that he had told this vehicle to
25 go down the street, pullover, and he would go down after he
6
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1 looked for the fleeing vehicle. sergeant steigleman arrived
2
3
at the location and began field sobriety tests during which
time I also administered field sobriety tests to him.
During those tests, the individual displayed common signs of
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5 being under the influence of alcohol to a degree that he was
6 incapable of safe driving.
7 At 750 hours, he was placed under arrest for
8 Driving under the Influence of alcohol based on all the
9 information. The individual was handcuffed and searched at
10 which time a brass marijuana smoking device and film
11 canister were found in the left front pants pocket of the
12 individual.
13 He was placed in the rear of my patrol car at
14 which time I requested him to submit to a chemical test to
15 determine his blood alcohol concentration. The Implied
16 Consent Law was read to the actor, being Mr. Hammond. At
17 that time he told me he was not going to take any test.
18 Prior to leaving the scene of the accident, several of the
19 witnesses from the incident that occurred in Camp Hill did,
20 in fact, show up at the scene of my traffic stop.
21 I transported him to my police department,
22 and he was again requested to submit to a test to determine
23 his blood alcohol concentration on what's known as a BAC
24 Data Master machine. Sergeant Steigleman accompanied me to
25 that location. He is a certified operator.
7
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1 sergeant steigleman gave the male his Miranda
2 warnings and attempted to have simple booking questions
3 answered. During this time period, the male said that he
4 was not going to do anything until he made a phone call. I
5 personally read the Implied Consent Law to him from the
6 sheet of paper three times and in the presence of both
7 sergeant steigleman and Patrolman Bingham of the camp Hill
8 Borough police Department.
9 Q Do you have that sheet here?
10 A I have a copy of it.
11 Q okay. Would that be the DL 26 form?
12 A That's correct, sir.
13 Q Would you -- now did you say you read off of
14 this form?
15 A That is correct, sir.
16 Q Would you read for the court what you read
17 off of that form, please?
18 A certainly. okay. This is the chemical
19 testing warning and report refusal to submit to a chemical
20 testing as authorized by section 1547 of the Vehicle Code.
21 Please be advised that you have you are now under arrest
22 for Driving under the Influence of alcohol or a controlled
23 substance pursuant to section 3731 of the Vehicle Code. I
24 am requesting that you submit to a chemical test of breath.
25 MR. ESHELMAN: If I may, Your Honor, I'd be
B
.'"
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1 willing to waive the reading of this.
2 THE COURT: All right. May we make this item
3 an exhibit?
4 MR. KABUSK: Yes, Your Honor, please. This
5 is -- if I could just have the officer identify this as a
6 copy of the form he read.
7 THE COURT: Why don't we get it marked first.
S (Whereupon,
9 Commonwealth's Exhibit No.1
10 was marked for identification.)
11 BY MR. KABUSK:
12 Q Officer Burger, is this a copy of the DL 26,
13 the form that you read?
14 A That's a copy of the form that I read, and my
15 signature appears on that.
16 THE COURT: How is that marked? What kind of
17 exhibit?
18 THE WITNESS: Commonwealth's Exhibit No.1,
19 sir.
20 THE COURT: Thank you.
21 MR. KABUSK: Thank you. I move for the
22 admission of what's been marked Commonwealth's Exhibit No.
23 1.
24 MR. ESHELMAN: No objection.
25 THE COURT: All right. Commonwealth's
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Exhibit 1 is admitted.
(Whereupon,
Commonwealth's Exhibit No. 1
was admitted into evidence.)
, '
BY MR. KABUSK:
Q Officer Burger, after you read the DL 26 to
him, and you said you read all three -- excuse me, all four
questions?
A Correct.
Q What happened next?
A Well, the individual stated he was not going
to take any tests, and at this particular time I obtained a
phone number of a person to pick Mr. Hammond up at the
police department, and I proceeded upstairs and called this
individual.
Q When you say Mr. Hammond refused to take the
test, did you warn him of any consequence for refusing to
take the test?
A Absolutely. He was told that he would lose
his operating privileges for a period of not less than one
year.
Q Did Mr. Hammond make any attempt to take the
test?
A No, sir, none whatsoever.
MR. KABUSK: No further questions.
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THE COURT: Mr. Eshelman.
CROSS EXAMINATION
BY MR. ESHELMAN:
Q When you said you made the stop and your
words were, you noticed an odor of alcohol clearly emanating
from the vehicle, can you tell the Court what type of
alcohol it was you smelled?
THE COURT: I think he said he noticed an
odor of an alcoholic beverage emanating from the car.
THE WITNESS: That was my response.
MR. ESHELMAN: Okay.
BY MR. ESHELMAN:
Q Are you able to tell what sort of alcoholic
beverage? Did it smell like beer? certain alcoholic
beverages, would you agree, have a different odor of
alcohol?
..
A In what state?
Q Well, in particular, let's keep it focused to
what's involved, after someone has consumed them?
A Yes, people do emanate smells of alcoholic
beverages.
Q My question was, do you agree that certain
alcoholic beverages have a different odor than other
alcoholic beverages, either post-consumption or if they had
been spilled on a shirt?
11
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1 A Yes, they would have different smells.
2 Q Can you tell the Court what type of alcoholic
3 beverage you thought you identified when you approached the
4 vehicle?
5 A No, I cannot.
6 Q When you were speaking with the Defendant and
7 he was attempting to identify to you where he was coming
S from, where he was going to, can you remember his exact
9 words regarding his origination point or his destination?
10 A He gave me no origination point. He said he
11 was involved in an accident in a parking lot of the bar;
12 however, he did not name the name of the bar.
13 Q Didn't he tell you that he was coming from
14 Harrisburg, a bar in Harrisburg?
15 A Yes, but I would assume that there's multiple
16 bars in Harrisburg.
17 Q Okay. Did he, in fact, tell you that he was
18 involved in an accident, and it occurred while he was coming
19 from Harrisburg?
20 A As I had testified, sir, he told me that he
21 was involved in an accident in a parking lot in a bar in
22 Harrisburg.
23 Q So did you ever see the other vehicle that
24 was involved in the accident?
25 A No, sir, I did not.
12
1 Q Do you know if it was ever recovered? To
2 your personal knowledge, was that other driver found?
3 A Yes, he was.
4 Q And did he ever report having any damage to
5 his vehicle?
6 A Yes, he did.
7 Q Do you know what that damage was?
8 A You're asking my opinion of what the damage
9 was or do I know?
10 Q If you don't know and you have an opinion?
11 A Well, I have an opinion it would have been
12 rear damage to the vehicle.
13 Q Do you know -- okay. Understandable. Do you
14 know the extent of any damage?
15 A To the other parties'
16 Q Yeah.
17 A I believe he testified at the preliminary
1B hearing that there was some rear bumper damage, but it was
19 mostly under carriage. That's my recollection at this
20 point.
21 Q Understood. That's my recollection, too,
22 from reading the file. Anyway, can you describe for the
23 Court some of the specific details of what you described as
24 the common signs of influence of alcohol that were exhibited
25 by the Defendant according to your testimony, and if you
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would describe the tests?
A What was your last comment?
Q The field sobriety tests?
A Certainly, sir. I did not personally see
what we know as the HGN test or the horizontal gaze
nystagmus. However, as I was speaking to Sergeant Olsen on
the radio, I saw Sergeant Steigleman beginning that field
sobriety test, and Mr. Hammond got out of the car and was
leaning against his car while Sergeant steigleman was
talking to him.
During the walk and turn phase of the field
sobriety tests, he was unable to maintain any sort of
balance. He did miss heel-to-toe on each step, and he
stopped walking to maintain his balance, and he nearly fell
when he made his turn. The one-leg stand portion of the
test, Mr. Hammond put his foot down multiple times. And
what I mean by multiple is more than five, and he nearly
fell out on the street.
Q Did Mr. Hammond inform you prior to the
one-leg stand that he was unable to perform that test?
A Not to my knowledge or recollection, sir.
Q Did you administer the one-leg stand test?
A Well, kind of both of us did really. We both
explained and demonstrated the test.
Q Did you speak with -- did you ask him about
14
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1 any injuries to his leg or to his balance or any sorts of
2 things? Did you ask him any questions about his physical
3 ability to perform a test prior to administering it?
4 A I don't recall that, sir.
5 Q Isn't it true that he actually explained to
6 you ahead of time he would be unable to perform this test
7 under any circumstances?
B A Not to my recollection he did not say that,
9 sir.
10 Q Isn't it true that he informed you that he
11 was under medication at the time?
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20 A No, sir, not to the best of my recollection.
21 Q Isn't it true that the paraphernalia which
22 you indicated was recovered was actually in the glove box of
23 the vehicle?
24 A No, sir, that is not true.
25 Q Did you find any matches, lighters, or any
A No, sir, he did not say that.
Q Did he ever mention any difficulties with
sinus or with sneezing?
A No, sir, he did not say that.
Q Are you sure of that or
A I am positive of that.
Q Did you ever ask him whether he was under any
medication at all?
15
1 other forms of ignition anywhere about the Defendant's
2 person or in the vehicle?
3 A By ignition, I assume that you mean lighters
4 and/or matches?
5 Q Yeah, lighter or matches?
6 A I don't recall lighters. I don't recall.
7 Lighters or matches are not an illegal substance.
S Q Aren't they considered paraphernalia if you
9 found them in conjunction with a pipe or a method of
10 ingesting a controlled substance?
11 A They could be a tool utilized to enhance the
12 inhailing capabilities of that, but would I say that's
13 paraphernalia? No, because you can get cigarettes or
14 lighters anywhere.
15 Q Did you find any cigarettes on the Defendant?
16 A I don't recall. I didn't make note of that.
17 Cigarettes aren't illegal.
18 Q Wouldn't you think it unusual if, say, all of
19 the items that are typical in a profile for the ingestion of
20 a controlled substances, if all were there except for one
21 necessary ingredient, in this case it was a controlled
22 substance?
23 A Could you say that again?
24 Q Sure. Certainly. Wouldn't it be remarkable
25 to you where a necessary implement in the ingestion of a
16
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1 controlled substance was not present when the remainder of
2 what you suggest here was, I believe, an empty vial and a
3 pipe were present?
4 A sir, nothing in this world surprises me
5 anymore. No, I am not surprised. I have found marijuana
6 and/or paraphernalia in the last nine years in various forms
7 and stages. Whether it was lit or not is not the issue
8 here.
9 Q Let's forward then to the first time you
10 asked him questions regarding his submission to a blood
11 alcohol content test. I believe in your direct testimony,
12 you stated that the first time would have been at the scene
13 of the arrest, am I correct?
14 A That's correct, sir.
15 Q Can you repeat his exact words to you?
16 A Excuse me, Your Honor.
17 THE COURT: certainly.
18 THE WITNESS: Yeah, he stated to me he's not
19 going to take any tests.
20 BY MR. ESHELMAN:
21 Q Not going to take any tests?
22 A That's correct.
23 Q How soon after the walk and turn test did he
24 make this statement to you?
25 A I would have to give an approximation of
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1 three to five minutes.
2 Q Isn't it true that he said he wasn't going to
3 take anymore tests?
4 A No, he told me he wasn't going to take any
5 tests. I guess that would assume he's not going to take
6 anymore tests, yeah.
7 Q And isn't it true that he was frustrated with
8 the walk and turn test -- excuse me, the one-leg test was
9 the third one. Excuse me. Isn't it true of his frustration
10 to the one-leg test after he had informed you of his
11 inability to successfully complete a test like that under
12 any circumstances, yet you continued to administer the test
13 over his objection? Isn't it true that the reason for his
14 statement of, he's not going to take any tests or anymore
15 tests, was actually based upon the statements or at least
16 the administration of the tests?
17 MR. KABUSK: Objection, Your Honor. Can he
18 rephrase that question?
19 MR. ESHELMAN: certainly.
20 BY MR. ESHELMAN:
21 Q Isn't it true that the -- that his statement
22 to you that he would not take anymore tests was actually in
23 reference to the field sobriety tests which you had
24 administered upon him over his objection from the context of
25 his situation?
18
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1 A Well, I'll try to answer that the best way I
2 can. Number one, at the time he was requested to take the
3 blood alcohol concentration test, the man was already in
4 handcuffs and placed under arrest. I cannot testify to
5 whether your client was frustrated or not. However, I'm a
6 reasonable person. I would agree that people do not like it
7 when their freedom is taken away from them. Whether or not
8 your client was frustrated or not, I don't know.
9 Q What about the context of the situation?
10 Isn't it true that he was referring to the field sobriety
11 tests?
12 A I couldn't answer what he was referring to.
13 That's not -- I didn't ask him to take any further field
14 sobriety tests.
15 Q You asked him to take another test. Did you
16 describe for him the difference between the two?
17 A I think when a police officer is sitting in a
18 car, and your client is sitting behind me in handcuffs, he
19 has already been told that he is under arrest, and I
20 excuse me, Your Honor. I requested him to submit to a
21 chemical test to determine his blood alcohol concentration.
22 I wasn't asking him to take anymore field sobriety tests.
23 Q Okay. And did he state that he was aware of
24 the difference between those two tests? Did he indicate to
25 you he understood the difference?
19
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1 A At the scene?
2 Q Yeah, that first time?
3 A I didn't ask him if he knew what the
4 difference was to my knowledge.
5 Q okay. Okay. At the hospital then you
6 stated oh, the station, I believe is where the DL 26
7 was -- where the blood alcohol content was offered at least
8 under the context of the DL 26. Am I correct about that?
9 That was at the station?
10 A That's correct, sir.
11 Q Let me forward to there then. Do you
12 remember well, let's try it this way. Isn't it true that
13 the Defendant stated that he wanted to make a phone call?
14 A During this time, your client said he was not
15 going to do anything until he made a phone call.
16 Q Okay. So -- and did -- just to recap on
17 Commonwealth's Exhibit No.1, did Mr. Hammond ever sign the
18 DL 26?
19 A No, sir.
20 Q Did he ever sign anything that indicated his
21 formal refusal to ever take a blood alcohol test?
22 A He signed nothing.
23 Q Did he ever say he would not take a blood
24 alcohol test under any circumstances?
25 A To my knowledge, yes, he did. He was given
20
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part of your answer.
THE WITNESS: What
MR. ESHELMAN: I'm sorry.
THE WITNESS: What I'm saying is, I read this
to him three times, and he said he wasn't going to take the
test. I don't know what else to tell you, sir.
A
Q
A
Q
telephone call?
A
Q
him?
A
Q
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number __ well, I withdraw the question. Isn't it true that
he offered the phone number to you and the name of the
individual he wished to call rather than you soliciting that
information from him?
A No, I think I had to tell him who he
wanted __ I had to ask him who he wanted me to call.
Q Did you hand him the phone or did someone
let's see. Did you hand Mr. Hammond the telephone?
A I don't recall, but Mr. Hammond spoke on the
telephone. I don't recall the sequence of the events at
that particular time.
Q I'll leave it at that. Did you notice when
you searched Mr. Hammond around booking, did you find any
medications for sinus or for anything of this sort, any
other medications?
A I don't recall.
Q Tylenol sinus, Tavist D?
A I don't recall that, sir.
MR. ESHELMAN: I have no further questions on
cross examination.
THE COURT:
MR. KABUSK:
Mr. Kabusk.
Nothing, Your Honor.
BY THE COURT:
Q When you asked him to take a chemical test at
the time of the arrest on the scene, what did you tell him?
22
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1 A Your Honor, I have a small card that is
2 laminated that has section 1547 on it. I keep that in my
3 clip board, and I pull that out, and I read it.
4 Q Does that have the same information that is
5 on Commonwealth's Exhibit 1?
6 A That's correct, Your Honor.
7 Q Is it verbatim or is it different?
8 A I would say it's verbatim.
9 THE COURT: okay. Anything further?
10 MR. KABUSK: No, sir. Well, one more
11 nothing with Officer Burger, Your Honor.
12 THE COURT: okay. You may step down. Thank
13 you.
14 MR. KABUSK: Your Honor, Commonwealth calls
15 sergeant steigleman -- Officer Steigleman.
16 Whereupon,
17 GERALD R. STEIGLEMAN
18 having been duly sworn, testified as follows:
19 DIRECT EXAMINATION
20 BY MR. KABUSK:
21 Q Officer steigleman, for the record, please
22 state your full name, and spell your last name?
23 A My name is Gerald R. steig leman,
24 s-t-e-i-g-I-e-m-a-n.
25 Q And where are you employed?
23
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1 A Silver spring Township Police Department.
2 Q During the course of your official duties,
3 have you had occasion to investigate an alleged incident of
4 DUI on or about May 28th, 1995?
5 A Yes.
6 Q Could you tell the Court about what incident?
7 A We had received a call, as Officer Burger
8 stated, by our police radio of the hit and run. I heard the
9 radio transmission. Officer Burger had a suspect vehicle
10 pulled over on Silver spring Road. I proceeded to that
11 location and arrived behind Officer Burger's patrol car. At
12 that time I got out of the vehicle, approached the vehicle
13 in which Mr. Hammond was in, and Officer Burger went back to
14 the patrol car to have radio communications with Camp Hill
15 Police Department.
16 At that time I asked Mr. Hammond if he would
17 step out of the vehicle. He got out of the vehicle and
1B started walking to the rear of the vehicle. He was leaning
19 against the vehicle holding controlling his balance until
20 he got to the rear of the vehicle. At that time I asked him
21 if he would submit to some field sobriety tests. He said he
22 would.
23 I proceeded to do the field sobriety tests on
24 Mr. Hammond. I did the HGN, which he failed, and at that
25 time Officer Burger came up, and I explained the walk and
24
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1 turn to Mr. Hammond. He indicated that he understood the
2 instructions, and he proceeded to do the walk and turn. He
3 failed that test also. The third test was a one-leg stand.
4 I explained the one-leg stand several times to Mr. Hammond.
5 At that time Officer Burger had said, I will
6 go and also demonstrate it to you. Officer Burger
7 demonstrated the one-leg stand also. At that time he
8 started to do the one-leg stand. He started losing his
9 balance, and we stopped that test for the safety of Mr.
10 Hammond because he was falling back into traffic. At that
11 time we placed him under arrest, and Officer Burger, after
12 searching him, placed him in his patrol car.
13 We proceeded then to our station, our police
14 station, and at that time I explained to Mr. Hammond the
15 breathalyzer instrument which was the BAC Data Master. At
16 that time he said he did -- he would not take the test, that
17 he wanted to make a phone call.
18 I explained to him under the law that at this
19 time, you know, he did not have the right to make a phone
20 call, that he must take the test or face the consequences as
21 far as what the law says there on the form. At that time
22 Officer Burger did explain the or did read the implied
23 consent form again to him. And he also refused it again.
24 Q Do you recall Officer Burger reading the DL
25 26 to the motorist?
25
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1 A Yes.
2 Q And did the motorist even attempt to blow
3 into the breathalyzer?
4 A No, he did not.
5 Q What did he say when he was asked to take the
6 test?
7 A He said he would not take the test until he
B made a phone call.
9 Q And you recall Officer Burger reading all
10 four of these statements on the DL form?
11 MR. ESHELMAN: Objection. It was asked and
12 answered. He already said that, yes, he remembers.
13 THE COURT: Do you concede that point, Mr.
14 Eshelman?
15 MR. ESHELMAN: Yeah, it's asked and answered.
16 His answer was, yes, he saw Officer Burger read the DL 26.
17 THE COURT: Several times.
18 MR. ESHELMAN: Was it several times or was it
19 all four questions?
20 THE COURT: Oh, I'm sorry. What was the
21 question, Mr. Kabusk?
22 BY MR. KABUSK:
23 Q Did Mr. steigleman recall Officer Burger read
24 all four of these questions on the DL 26 several times?
25 A Yes.
26
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1 THE COURT: You may ask the question.
2 MR. KABUSK: No further questions.
3 THE COURT: Mr. Eshelman
4 CROSS EXAMINATION
5 BY MR. ESHELMAN:
6 Q Isn't it true that Mr. Hammond also informed
7 you at the scene of the accident prior to taking the one-leg
8 stand or prior to the field sobriety tests that he -- well,
9 particularly the one-leg stand after it was demonstrated to
10 him, that he would not be able to take that test under any
11 circumstances?
12 A No.
13 Q And do you remember anything specifically
14 that he stated prior to taking the one-leg stand?
15 A I'm sorry. Your question again?
16 Q Do you remember any of Mr. Hammond's words
17 specifically prior to administering the one-leg stand test?
18 A No, I don't.
19 Q Do you remember him talking through that time
20 period?
21 A When I was giving him the instructions, I
22 asked him if he understood the instructions, and he
23 indicated he did understand the instructions.
24 Q Did you notice Mr. Hammond progressively
25 becoming less balanced, more disoriented, or less able to
27
1 take field sobriety tests?
2 A Less able to?
3 Q Progressively, that's correct?
4 A I performed each -- I explained each field
5 sObriety test to him at which time he failed all three field
6 sobriety tests.
7 Q In your opinion?
8 A That's right, in my opinion.
9 Q Did you notice any progressive -- did you
10 notice any change -- I'll be more specific or more direct
11 about it. Did you notice any change in Mr. Hammond's
12 behavior at the time you arrived at the scene through until
13 the end of the evening, which I understand was closer to
14 10:00 when you finally made your telephone call?
15 A I don't believe it was 10:00, no, sir, and he
16 was agitated to the point where he was refusing at the
17 station until he made a phone call.
1B Q After he made the phone call, did anyone ask
19 him to take a field sobriety test?
20 A No, sir.
21 Q You heard the responses offered by Patrolman
22 Burger to those questions, the answers to which you have
23 personal knowledge. Do you agree with his answers
24 substantially? In other words, I'm trying to avoid from
25 asking all the same questions I asked him. You heard his
2B
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answers. To the ones that you could honestly answer because
you knew specific information, do you agree with his
answers?
A Yes.
MR. ESHELMAN: I have nothing further.
THE COURT: Mr. Kabusk.
MR. KABUSK: No further questions, Your
Honor.
THE COURT: Is this in the morning or in the
evening?
THE WITNESS: This was in the evening. It
was p.m.
THE COURT:
down. Thank you.
MR. KABUSK:
Honor.
THE COURT:
Okay. Thank you. You may step
No further witnesses, Your
I.
Mr. Eshelman.
MR. ESHELMAN: I'd like to call to the stand
the Defendant, Mr. Larry Hammond.
Whereupon,
LAWRENCE T. HAMMOND
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. ESHELMAN:
Q Mr. Hammond, could you state and spell your
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answers. To the ones that you could honestly answer because
you knew specific information, do you agree with his
answers?
A Yes.
MR. ESHELMAN: I have nothing further.
THE COURT: Mr. Kabusk.
MR. KABUSK: No further questions, Your
Honor.
THE COURT: Is this in the morning or in the
evening?
THE WITNESS: This was in the evening. It
was p.m.
THE COURT:
down. Thank you.
MR. KABUSK:
Honor.
THE COURT:
Okay. Thank you. You may step
No further witnesses, Your
\
Mr. Eshelman.
MR. ESHELMAN: I'd like to call to the stand
the Defendant, Mr. Larry Hammond.
Whereupon,
LAWRENCE T. HAMMOND
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. ESHELMAN:
Q Mr. Hammond, could you state and spell your
29
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1 full name for the record, please, and middle initial?
2 A Lawrence T. Hammond, H-a-m-m-o-n-d.
3 Q Your current address is on Main street,
4 Mechanicsburg?
5 A 203 West Main street.
6 Q And how long have you been a resident?
7 A Twenty-three years.
8 Q You understand that today's proceeding is
9 regarding an alleged refusal to submit to a blood alcohol
10 content test in May of 1995?
11 A Yes, I do.
12 Q okay. Can you describe for the Court briefly
13 some of the incidents starting with the time you left from
14 work in your own words, but try to make it succinct of what
15 occurred that evening?
16 A It was a sunday. It was a holiday weekend.
17 I left the house at approximately 5:30. I arrived in
18 Harrisburg about ten minutes after six. I rode around for a
19 while looking for a friend of mine. I stopped at a bar on
20 North street in Harrisburg and was looking for a friend of
21 mine. I ordered a drink. I walked around to the other side
22 of the bar. The drink was vodka and orange juice.
23 I ordered the drink, took the drink to the
24 other side of the bar. I couldn't find the person I was
25 looking for, but I found another friend of mine, and we went
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back and started playing pinball on the pinball machine. I
drank one drink. He had ordered me or somebody had ordered
me a second drink, and I took maybe two or three sips out of
it, maybe an inch off the top of the glass, not even half.
Q This was what kind of a drink?
A Vodka and orange juice. It's Absolute Vodka.
It's tasteless and odorless. I took a few sips out of the
second drink, and I had a sinus attack, which I frequently
have.
Q What's involved with a sinus attack?
A My head goes shut, my ears go shut. My eyes
tear. They get very bloodshot because I'm crying most of
the time. I sneeze profusely. I sneezed approximately 14
times, and I excused myself, went into the men's room, blew
my nose, and tried to clean up my act to go back out into
the public area of the bar. I went back to the pinball
machine, and I kept sneezing. I sat the drink down. I took
two pills out of my pocket and took the pills and washed it
down with a little bit of the drink.
Q Do you know what type of pills they were --
what type of pills did you think they were?
A I thought they were Tylenol Sinus medication
pills.
Q What did they turn out to be?
A Tavist D's.
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17
18
19
20
21
22
23
24
25
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Q Are they both non-prescription drugs?
A Both over-the-counter.
Q And do you typically carry those in your
pocket because of your sinus condition?
A Yes.
Q Do you keep the whole wrapper?
A No, I usually just stick a couple pills in my
pocket if I'm going out for a couple hours or so.
Q okay. All right. So you took two of these
medications?
A Washed it down with a littlo bit of the
drink, sat the drink down and said, I can't stop sneezing,
I'm leaving.
Q Did you finish the drink?
A No, I didn't. I sat the drink down. I gave
it to my friend and told him to finish it. It was more than
half a drink, and he recalls finishing the drink. He was a
witness at the district justice hearing, and he testified to
that. I left the bar on North street, headed across the
river through Harrisburg into Camp Hill, and in Camp Hill,
when I approached the intersection of -- I'm trying to think
of the name of the road. I know it like the back of my
hand. I can't think of the name of the road.
Q Near the bend?
A It's at the top of the hill right -- I can't
32
1 think of the name of it, but it's off of 11 and 15.
2 THE COURT: Is it poplar Church Road?
3 THE WITNESS: No, sir, it's before that.
4 It's right in Camp Hill. It's before you get to Market
5 Street.
6 THE COURT: Okay.
7 THE WITNESS: And I either sneezed or I went
8 to do something with the stereo, I don't recall.
9 BY MR. ESHELMAN:
10 Q How much time was there between the time you
11 left the pinball machine and bar or whatever to this
12 particular intersection?
13 A I got to the bar approximately about 6:15,
14 6:20, and I left the bar approximately about 7:15.
15 Q How much time was between the time you left
16 the bar and the scene of the accident?
17 A About five, seven minutes because that's
18 usually all it takes to travel.
19 Q It's not a long time, okay. I guess I should
20 also ask this. About how long does it normally take for the
21 Tylenol Sinus, and about how long does it take -- excuse the
22 compound question -- for a Tavist D to kick in?
23 A About half hour, 45 minutes usually.
24 Q For each of the medications?
25 A Tavist D the Tylenol doesn't really do
33
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,....
1 much for me. It will stop the sinus drainage that I have in
2 my nose, and it might stop the tearing, but it doesn't do
3 much of anything else.
4 Q It doesn' t kick?
5 A Right. It takes about a half an hour to kick
6 in.
7 Q Tylenol Sinus have a strong effect when mixed
8 with alcohol?
9 A I don't know. I never took it with alcohol.
10 MR. KABUSK: Your Honor, I object. Mr.
11 Hammond is not qualified to testify regarding the chemical
12 effects on a body that a drug has. We would need a doctor
13 or a qualified physician here.
14 THE WITNESS: But all drugs affect people
15 differently.
16 THE COURT: I suppose he can say how it
17 affects him.
18 MR. ESHELMAN: You can -- well, actually,
19 should I repeat the question, Your Honor?
20 THE COURT: All right.
21 BY MR. ESHELMAN:
22 Q Do you know whether sinus -- Tylenol Sinus
23 has a particular effect on you when mixed with alcohol or
24 anything like that?
25 A I don't know that.
34
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Q Okay. And what about Tavist D?
A I didn't know that until that day.
Q Okay. So after there was an accident?
A I was proceeding through 11 and 15, and I
don't know whether I sneezed or if I bent down to change
something on the stereo, but there was a car in front of me
at a red light that had just stopped, and I just bumped it
in the rear end. It was a fender bender. All the damage
appeared to be to my car. There was no apparent damage to
the other vehicle whatsoever.
Q Could you see the other car?
A I could see clearly the other car. The hood
of my car waG shaped like a tent, and I had about a two-foot
clearance, maybe a foot and a half, that I could see between
the dashboard and the bend of the hood, and I could see the
rear end of the car perfectly.
What kind of car was the other one?
It was an Oldsmobile. I think it was a '94.
Q
A
It was new.
Q
A
Q
A
Q
A
""
,....,.
r
.
Do you remember the color?
Dark.
And you were driving a?
Red Celica.
Toyota?
Toyota.
35
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Q Does that sound like a Toyota-oldsmobile
fender bender?
A Well, it was a deal where I ran into the back
of the car. I wasn't going fast enough to ignite my
driver's air bag, and I didn't realize it until after, but
the front end of my car was low, and it went underneath of
the Oldsmobile, and there was no bumper damage. There was
no fender damage. There was no trunk damage to the vehicle,
and there was no apparent damage to the vehicle whatsoever
until the driver went to pull the car away. Then he
realized that there was damage underneath of the car. By
then, I had already left the scene.
Q Did you talk with the other driver?
A The driver got out and asked me if I was all
right. I said, yes. I said, are you all right? He said,
yes. And he looked at his car, and I was sitting there
looking at my hood, and he looked at his car, and I heard
the driver say, well, I'm going. But as he said, I'm going,
he turned his head and started walking away from me. I
didn't find out until the district justice hearing that he
said, I'm going back to my car. I assumed since there was
no damage to his car that he was leaving the scene. I put
on my turn signal, pulled into the lane, and did the same
thing. I left the scene.
Q How did you drive away from the scene?
36
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A I put on my signal, got into the lane. I
proceeded down the road. I wasn't speeding. I wasn't
weaving. They had witnesses saw me leave the scene. They
had witnesses watching me go down the Carlisle Pike. A fire
chief from Hampden Township witnessed me going down the
Carlisle Pike and said I didn't weave, I didn't cross the
line, I didn't speed.
Q But you wouldn't characterize it as fleeing
!:rom the scene?
A I didn't even know that I was involved in an
accident with damage until the next day. I did not know
that there was any damage to the man's vehicle until the
next day when I proceeded to call -- when I received a call
from his insurance company.
Q What about when you were pulled over on Route
.
11?
,.
A I didn't know at the time that they had a
bulletin to stop my car. I was proceeding down the Carlisle
Pike. I wasn't speeding. I wasn't fleeing.
Q Okay.
A I wasn't trying to run and hide. I was
traveling in my normal route home. I usually take the
Carlisle Pike because I usually stop at Taco Bell. And I
turned onto silver Spring. I didn't do Taco Bell that
night. I turned onto Silver spring Road, and I saw the
37
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1 lights flashing in back and stopped.
2 Q Did you have any problem pulling over when
3 you saw lights behind you?
4 A To my knowledge, no. I signaled and pulled
5 off the side of the road.
6 Q Did you ever tell the police officers -- how
7 about this? What did you tell the police officers?
8 A I didn't know what was happening at the time,
9 so I didn't tell the police officer that I had any problem
10 with prescription drug -- over-the-counter drug and an
11 alcohol reaction at the same time. I didn't know that at
12 the time, so I didn't tell the officer at the time.
13 Q But how much time would have passed since you
14 took the what turned out to be the Tavist D?
15 A About 40, 45 minutes at that point.
16 Q I mean, from the time he pulled you over?
17 A No, I had taken the Tavist D probably at
18 about 7:00, 7:10.
19 Q Okay.
20 A Then I just left the bar, and then he stopped
21 me at 7:27 or 7:26.
22 Q About 7: 30?
23 A About then.
24 Q okay. And before or during the time they
25 were administering the field sobriety tests, did you mention
38
'.'-.
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1 anything did you tell anything to the police officer?
2 A No, there was a loud buzzing in my ears, and
3 there was traffic going up and down the roadway, and it was
4 a little difficult to hear, but there was a loud buzzing in
5 my ears. And, no, I didn't tell the officer anything
6 because I didn't know anything to tell him.
7 Q Not so much about -- well, let's keep going.
8 When did you begin to notice the buzzing in your ears?
9 A When I got out of the car, when I was asked
10 to get out of my car.
11 Q Did that continue to get worse?
12 A It got louder. It was a buzzing. It just
13 got louder.
14 Q Did you continue to hear that buzzing at the
15 station?
16 A Yes, at the station it was not only a
17 buzzing, it was -- all I saw was bright lights. All I could
1B hear was a buzzing and see bright fluorescent lights. It
19 was like in a great big room with nothing but bright lights.
20 Q How did you feel? I don't want to put words
21 in your mouth. Just try to describe to the Court so he can
22 understand and I can understand more about what you were
23 going through at the time.
24 A I had never had a reaction to prescription
25 drugs -- over-the-counter drugs and alcohol before, so I
39
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don't know. It's hard to describe. It was just when I
was doing the field sobriety tests, it was like, or when I
got out of the car, it was like I was trying to walk but I
wasn't getting anywhere. It just felt awkward. It's like I
could feel my feet moving, but I wasn't getting anywhere.
Q Do you remember the police officers reading
the DL 26?
A Not at the scene I do not.
Q Do you remember them reading things like that
to you at the station?
A The only time I remember anything at the
station, except that I was there for a long period of time
and the bright lights and the buzzing, I remember Officer
Burger coming over to me, and I was sitting there with my
head similar to this (witness indicated), and all I could
picture was bright lights and a buzzing in my ears. And I
heard the officer in a very sharp tone voice, sort of nasty,
not nasty, but sharp voice, is it my understanding you
refuse to take the chemical test? And I looked at him, and
it's when things came back, and I looked at him, I said, no,
I just thought I was entitled to a phone call. After being
there for two and a half hours, I thought I was.
Q About what time was it that you made this
phone call?
A
.
I called my neighbor, Thomas J. Gross at 207
40
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1 Main street. He said I called him at approximately 9:47.
2 Q Do you remember -- he said about that time.
3 Do you remember the time?
4 A No, I don't remember the time.
5 Q Do you remember specifics?
6 A He picked me up about 10 after 10. The next
7 thing I remember after Officer Burger handed me the phone, I
8 remember telling my neighbor to come pick me up, and the
9 last thing I remember after that is there was a short -- it
10 seemed like a long wait, but I know it wasn't that long
11 because of the time span at about 10 after 10, quarter after
12 10, my neighbor picked me up, and I was standing outside
13 with Officer Burger, and Officer Burger looked at me and
14 said, do me a favor and don't drink anymore tonight, or
15 something so that effect. I just kind of looked at him
16 funny and I said, I won't.
17 Q And was this before or just about before you
18 were picked up by your neighbor?
19 A That was like seconds he must have saw my
20 neighbor's car pulling up in the lot or something because he
21 said it as my neighbor pUlled up and I was starting to walk
22 away.
23 Q Which turned out to be how many hours after
24 you had taken the Tavist D?
25 A About two, two and a half.
41
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Q
Did anybody ask you after you made the phone
2 call to submit to take a blood alcohol test?
No.
3
4
5 direct.
6
A
MR. ESHELMAN: I have no further questions on
7 CROSS EXAMINATION
THE COURT: Mr. Kabusk.
8 BY MR. KABUSK:
9
Q
Mr. Hammond, do you recall being arrested for
10 a violation of 3731, in other words, DUI, on that evening?
11
12
13 evening?
14
15
Yes, sir.
A
Q
Do you recall driving your motor vehicle that
A
Yes, sir.
Q
And you admit that you were drinking prior to
16 driving your vehicle that evening?
17
I had one plus drink that I'll admit to. I
A
18 know I did not have anymore than that. I had just left the
19 house. I had just finished feeding the cats at 5:30.
20
21
22
Q
So you admit to drinking?
Yes, to one and partially of another drink.
Do you recall being asked to submit to a
A
23 chemical test to determine your blood alcohol level?
Q
24
2S
A
At what point, sir?
Either at the scene of the stop or at the
I.
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,
;
Q
42
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1 station?
2 A At the scene, no. The only thing I remember
3 in the police station is that Officer Burger said he already
4 recited it three times, I had never heard it the first two
5 times. He said he had recited it three times or something.
6 That's when I said that I heard in a sharp tone voice, is it
7 my understanding that you refuse to take the chemical test?
B I said, no, I just thought I was entitled to a phone call.
9 Q Do you recall refusing to submit to the test?
10 A Not an outright downright refusal, no, I
11 don't.
12 Q Okay. Do you recall being warned of the
13 consequences for refusing?
14 A I knew the consequences of refusing to take a
15 breath test prior. I do not recall hearing that I would
16 lose my license for a year if I refused.
17 MR. KABUSK: No further questions.
18 THE COURT: Mr. Eshelman.
19 MR. ESHELMAN: No redirect.
20 THE COURT: I just have one question, if I
21 might. In Commonwealth's Exhibit 1, which is the form that
22 the officer testified he read to you from, there's a place
23 for the signature of the motorist, and the form indicates
24 that you refused to sign that. Do you recall that?
2S THE WITNESS: I do not recall ever seeing
43
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1 that form before in my life until I saw it next to the
2
3
attorney at the table.
THE COURT: All right. Anything further?
~.
4
MR. ESHELMAN: Not from the defense.
S
MR. KABUSK: No.
6
THE COURT: Okay. You may step down. Thank
7 you.
8
THE COURT: Mr. Eshelman.
9
MR. ESHELMAN: Your Honor, we respectfully
10 request ask that this Court grant our motion to -- I'm not
11 sure exactly procedurally how to say this, whether it was
12 originally the Commonwealth's motion to suspend his license
13 or that we asked that it was our motion for the Court __
14 okay. It was the Commonwealth's request, that's true.
15 We would ask that the Court deny the
16 Commonwealth's request that his license be suspended
17 primarily on the grounds of whether Mr. Hammond was ever
18 actually informed of the consequences of refusing to submit
19 to a blood test, and, secondly, on the grounds that he never
20 actually or knowingly refused.
21 It's clear from the testimony both of the
22 officers and of the Defendant that he had a reaction to an
23 over-the-counter drug under a minimal amount of alcohol
24
where that truly became a problem only after he was stopped
2S for what is termed fleeing the scene of an accident or what
44
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1 Mr. Hammond calls leaving the scene of an accident. It is
2 apparent from his testimony that he was clear and coherent
3 as of the time of the accident, but that things
4 progressively became worse.
5 The description offered to the Court of what
6 took place at the station was based -- can show that any
7 consent or that let me rephrase that. That Mr.
8 Hammond was unable to consent to a blood alcohol content at
9 that time. By the time he recovered substantially, which
10 there is some discrepency as to what time this was -_ the
11 defense submits it was approximately 10:00 p.m. By the time
12 the Defendant was able to recover from the effects of the
13 medication substantially enough to recognize his
14 surroundings, they no longer offered him the opportunity to
15 submit to the same blood test.
16 In the officer's testimony, their reading it
17 to him four times, I SUppose I can understand that, and I'm
18 not laying fault with the Commonwealth for continuing to
19 offer him to submit to these tests, but I would submit that
20 Mr. Hammond's condition at the time and his inability to
21 understand the consequences of refusing to submit or to
22 actually and voluntarily and knowingly submit to such a test
23 would grant reason for this Court to deny the Commonwealth's
24 request for suspension of his license, a punishment which is
25 unwarranted in this case because the Defendant's actions do
45
1 not fall within the intent of the law which is to ensure
2 that people who are driving do indeed submit to any kind of
3 blood alcohol testing if a situation such as this would come
4 up or a situation like this without the Tavist D.
5 THE COURT: Thank you. Mr. Kabusk.
6 MR. KABUSK: Yes, Your Honor. The
7 commonwealth has the burden to establish the facts in a 1547
8 matter. The commonwealth must prove that the motorist was
9 arrested for a violation of section 3731. There was
10 testimony by the officers that the motorist was, in fact,
11 arrested. In other words, he was put in handcuffs in the
12 police cruisBr and then taken to the station. So the
13 motorist was arrested.
14 Second of all, the commonwealth must prove
15 that the motorist was arrested by a police officer who had
16 reasonable grounds to believe that the motorist operated or
17 was in actual physical control of a motor vehicle while
18 under the influence of alcohol or a controlled substance.
19 Your Honor, there is testimony that the officers testified
20 that the motorist exhibited the classic signs of
21 intoxication, the smell of alcohol and he failed the field
22 sobriety tests. So the Commonwealth met that burden.
23 Next the Commonwealth must prove that the
24 motorist was requested to submit to a chemical test. The
25 officers testified that they read the DL 26, which is a
. -~
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46
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1 request to take a chemical test, to him four -- three times
2 at the station and one time at the stop. So the
3 Commonwealth met its burden there.
4 Fourth, the Commonwealth must prove that the
5 motorist refused to submit to the test. The officers
6 testified that the motorist refused to take the test. The
7 Commonwealth met its burden there.
8 And finally, the motorist must be warned of
9 the consequences for refusing to take the chemical test.
10 The officers testified that they read the DL 26 to him and
11 question 4(b) states, unless you agree to submit to the test
12 requested by the police officer, your conduct will be deemed
13 a refusal, and your operating privilege will be suspended
14 for one year. Your Honor, the Commonwealth met its burden
15 there.
16 Once the Commonwealth meets its prima facie
17 case, then the burden shifts to the motorist to prove the
18 motorist was incapable of making a knowing and conscience
19 refusal or any other sorts of affirmative defense. Your
20 Honor, it seems the motorist is arguing that he was the
21 refusal was not knowing and conscience because he was
22 incapable of performing the tests.
23 The Courts have repeatedly held that the
24
motorist must establish that by competent medical evidence.
,
.
25 Your Honor, there has been no competent medical evidence
47
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1 offered in the matter regarding his incapacity to perform
2
the test. Further, Your Honor, the motorist -- the officer
"
3 testified he asked if the motorist was injured.
4 The officer testified that the motorist
5 indeed said he was not injured and he was not told of any
6 particular reasons why he was incapable of performing the
7 test. Based on that, I would respectfully request that the
8 appeal be denied and the suspension reinstated.
9
THE COURT: okay. We'll enter this Order.
10 (Whereupon, the following Order of Court was
11 entered. )
12 ORDER OF COURT
13 AND NOW, this 7th day of December, 1995, upon
14 consideration of the Petitioner'S appeal from license
15 suspension, and fOllowing a hearing, the Court finds that
16 the Petitioner validly and effectively refused to submit to
17 a chemical test to determine the alcohol content of his
"
18 blood, and the appeal is denied.
19 By the court,
20
Isl J. Weslev Oler. Jr.
J.
21
22
THE COURT: So that's the Order.
~
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23
(Whereupon, the proceedings concluded at
24
10:35 a.m.)
25
48
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".....,
C E R T I F I CAT ION
I hereby certify that the proceedings are contained
fully and accurately in the notes taken by me on the above cause
and that this is a correct transcript of same.
I
The foregoing record of the proceedings on the hearing
of the within matter is hereby approved and directed to be
filed.
..:;l~"h"111 30 ltU..
Date l I
J
49