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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
SCOTT MARX MATLOCK,
Appellant
95-6647 CIVIL TERM
ORDER OF COURT
AND NOW, this 12th day of February, 1996, upon
consideration of the Appellant's appeal from license suspension,
and following a hearing which has not yet been completed, the
Appellant's motion for a continuance of the hearing is granted,
without objection from the Department of Transportation, and
counsel are requested to consult with the Court's secretary for
a date convenient to the parties for the conclusion of the
hearing.
It is noted that, at the time of adjournment,
Silver Spring Township Police Officer Gerald Steigleman was
being cross-examined by Mr. Lauer, and that Comonwealth's
Exhibits 1, 2, and 3 had been admitted. It is noted further
that no other exhibits have been identified at this time.
MATTHEW X, HAECKLER, ESQUIRE
For the Appellee
ATRICK F. LAUER, JR" ESQUIRE
For the Appellant
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95 FEB 13 fil'l 9: III
, CUMI3El1u,;;D COUNlY
PEN~ISYLV,'\NlA
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COMMONWEALTH OF PENNSYLVANIA, I
DEPARTMENT OF TRANSPORTATION, I
BUREAU OF DRIVER LICENSING, I
Appellee I
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
SCOTT MARK MATLOCK,
Appellant
NO. 95-6647 CIVIL TERM
AND NOW, this
ORDER OF COURT
\ ~ t~ day of February,
1996, upon agreement of
counsel, the continuation of the hearing regarding Appellant' s
appeal from license suspension in the above-captioned matter is
SCHEDULED for Thursday, May 9, 1996, at ll30 p.m., in Courtroom No.
5, Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
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Matthew x. Haeckler, Esq.
Assistant Counsel
Traffic Safety Section
Department of Transportation
103 Transportation and Safety Bldg.
Harrisburg, PA 17120 .
Attorney for Appellee ~ t..ut.:", ~L. ,,-1/3/'1',
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Patrick F. Lauer, Jr.,
2108 Market Street
Aztec Building
Camp Hill, PA l7011
Attorney for Appellant
Esq.
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PENNSYLVN~IA
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COMMONWEALTH OF PENNSYLVANIA I IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA DEPARTMENT I CUMBERLAND COUNTY, PENNSYLVANIA
OF TRANSPORTATION I
BUREAU OF DRIVER LICENSING, I
APPELLEE I
I
vs, I NO. 0,5 _ <.9<'oy1 C:.u:..QT~(Y\
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SCOTT MARK MATLOCK, I
APPELLANT I
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If- ORDER O~T
AND NOW, this L;fi day of -1~C~~995' based upon
Appellant's Appeal, a Hearing shall be held on I~~ day of
!.lJlttLJI/ll.V , 19*, in Courtroom L at ItJ ~ d' o'clock L. m.
at the f_~~l~~o~~ty Courthouse,
This Appeal shall act as a supersedeas of any suspension or
r~~ation of Appallant<' lica]::1 tsa~...:/
Date,.1la-e 4 J fJt\ ~
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COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
APPELLEE
1
1
1
1
1
1
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
.
.
.
.
NO.
SCOTT MARK MATLOCK,
APPELLANT
1
NOTICE OP APPBAL
1. Appellant, Scott Mark Matlock, is an adult individual whom
currently resides at 4811 Virginia Road, Mechanicsburg,
Pennsylvania 17055.
2. Appellee, Commonwealth of Pennsylvania, Pennsylvania Department
of Transportation, Bureau of Driver Licensing, Harrisburg, Dauphin
County, Pennsylvania, l7l23, is a state agency.
3. Your Appellant was arrested for allegedly operating his motor
vehicle while Driving Under the Influence on September 3, 1995, at
0248 hours by Patrolman, Shaun A. Felty, of the Hampden Township
Police Department.
4. Your Appellant was arrested on Good Hope Road at Radabaugh Land
in Hampden Township, Cumberland County.
5. Your Appsllant was informed that he was going to be given a
blood test to determine his blood alcohol content.
6. Your Appellant was notified on or about October 19, 1995, that
his license was being suspended for a period of one year which
would go into effect November 23, 1995 at 12101 a.m. A true and
correct copy of the Notice is attached at Exhibit "A".
7. Your Appellant denies that he refused to Bubmit to breath,
blood or urine testing and that said suspension is improper and
unwarranted.
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.
Respectfully sUbmitted,
-
-~
Date: I ( -ZO~~
Patrick F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID' 46430 Tel. (717) 763-1800
1.,,"'-.;.; _;;" < ~._
CERTIFICATB OF SERVICB
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 Civil 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 l7120
Respectfully submitted,
Date: JJ -20 -7 (
r ck F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 1701l-4706
10# 46430 Tel. (717) 763-1800
VERIPICATION
I, Scott Mark Matlock, state that I am the Appellant in the
above-captioned case and that the facts set forth in the above
Appeal are true and correct to the best of my knowledge,
information, and belief. I realize that false statements herein
are subject to the penalties for unsworn falsification to
authorities under 18 Pa. c.S. S 4940.
" )rdAt,~
Scott Mark Matlock
Date:
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Harrisburg, PA 17125
OCTOBER 19, 1995
SCOTT nARK nATLOCK
4all VIRGINIA RD
nrCHANICSBURG PA 17055
'52b4a412000372 001
10/1211"5
1,a43"1
01/2b/l%3
Dear Motoristl
As a result of your violation of Section 1547 of the Ve-
hicle Code, CHEMICAL TEST REFUSAL on 09/03/1995, your driving
privilege is being SUSPENDED for a period of 1 YEAR(S).
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 (camera 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
1571(a)(4) 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 un lil all current drivar' s license
product(s), the DL16LC Form, or a letter acknowledging your
sanction is received in this Bureau.
WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR 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 I 11/23/1995, 12101 a.m.
....................................................................
IWARNINGI If yOU are convicted for driving while your license is I
Isuspended, the penalties will bel not less than 90 days imprison-I
Iment and a .1,000 fine and an additional 1 year suspension. I
....................................................................
'-------------
952648412000372
Please see the enclosed application far restoration fee in-
formation.
You have the right to appeal the Department's action to the
Court of Cammon Pleas tCivi1 Division) within 30 days of the
mail date tOCTOBER 19, 1995) of this noUce. PLEASE NOTE
that this Civil Appeal is in addition to any appeal you have
to file from the criminal conviction. You must fallow the
instructions listed below according to your individual situ-
ation:
1. PENNSYLVANIA RESIDENT If you are a resident of
Pennsylvania, you must file an appeal with the Court of Cam-
mon Pleas in the County of your residence. Sending a COpy
of the appeal which you filed with the Court, to the Depart-
ment, will postpone the Department's action pending a final
decision by the Court if the appeal was filed within the re-
quired 30 days. However, if your privilege to operate a
commercial motor vehicle has been DISQUALIFIED, a signed
supersedeas by the judge must accompany your appeal.
2. NON-RESIDENT - If you are not a resident of Pennsylvania,
you must file an appeal with the Court of Cammon Pleas in the
Pennsylvania County where the violation occurred. Sending a
COpy of the appeal which you filed with the Court, to the
Department , will postpone the Department's action pending a
final decision by the Court if the appeal was filed within
the required 30 days.
THE APPEAL MUST BE SENT BY CERTIFIED MAIL TO:
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
OFFICE OF CHIEF COUNSEL
ROOM 103, TRANSPORTATION 6 SAFETY BUILDING
HARRISBURG, PA. 17120
Sincerely,
~~\~
Rebecca L. Bickley, Director
Bureau of Driver Licensing
COMMONWEALTH OF PENNSYLVANIA . IN THE COURT OF COMMON PLEAS OF
.
DEPARTMENT OF TRANSPORTATION . CUMBERLAND COUNTY, PENNSYLVANIA
.
BURFAU OF DRIVER LICENSING, ,
.
Appellee
.
,
v. . CIVIL ACTION - LAW
.
SCOTT MARK MATLOCK, .
.
Appellant . 95-6647 CIVIL TERM
.
ORDER OF COURT
AND NOW, this 9th day of May, 1996, upon
consideration of Appellant's appeal from license suspension
dated October 19, 1995, and following a hearing at which
Appellant conceded the validity of his arrest for Driving under
the Influence, the Court finds that the Appellant's words and
conduct fell far short of an unqualified, unequivocal assent to
a chemical test, and further notes that the appeal in this case
was filed on November 2l, 1995, which is more than 30 days from
the date of the notice of suspension. Accordingly, the
Appellant's appeal is DISMISSED.
By the Court,
J
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eP'.:', tiJ.- PATRICK F, LAUER,
~\qlt. For the Appellant
51\~ JDJ.AY
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MATTHEW X. HAECKLER, ESQUIRE
For the Appellee
JR., ESQUIRE
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COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
SCOTT MARK MATLOCK,
Appellant
95-6647 CIVIL TERM
IN RE: TESTIMONY OF PTL. SRAUN ALLEN FELTY
Proceedings held before the Honorable
J. WESLEY OLER, JR., Judge,
on February l2, 1996, commencing at 1l:10 a.m.
cumberland County courthouse, carlisle, Pennsylvania,
in Courtroom No, 3.
APPEARANCES:
MATTHEW X. HAECKLER, ESQUIRE
For the Appellee
PATRICK F. LAUER, JR., ESQUIRE
For the Appellant
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February 12, 1996
Courtroolll No. 3
11110 a.lII.
MR. HAECKLERI The Departlllent calls Officer
6 Whereupon,
7 SHAUN ALLEN FELTY
8 having been duly sworn, testified as followsl
9 DIRECT EXAMINATION
10 BY MR. HAECKLER:
11
12 full name for the record and spell your last name?
Q
Officer Felty, would you please state your
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A
Shaun Allen Felty, F-e-l-t-y.
By whom are you employed?
Hampden Township police Department.
And how long have you been so employed?
Five years.
Were you on duty on september 3rd, 1995?
Yes.
Q
A
Q
A
Q
A
Q
Do you recall what shift you were working?
I was on the midnight shift. I started on
A
22 the 2nd and went into the morning of the 3rd.
23
Okay. And during that shift, did you have
Q
24 reason to investigate an incident of driving under the
25 influence of alcohol?
2
A
Q
A
Q
A
blue shirt.
Q
A
Center.
Q
A
Q
booking center?
A
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1 (Whereupon,
2 commonwealth's Exhibit No. 1
3 was marked for identification.)
4 BY MR, HAECKLER:
5 Q I'm qoinq to hand you Commonwealth's Exhibit
6 No.1. Would you tell us what that is?
7 A It's the PennDOT chemical testinq warninqs
8 and report of refusal to submit to chemical testinq form.
9 Q Is that the form that you were attemptinq to
10 read to Mr. Felty?
11 A To Mr, Matlock.
12 Q Mr. Matlock?
13 A Yes, I read the chemical testinq warninqs to
14 Mr. Matlock.
15 Q And what was qoinq on while he was -- you
16 were readinq the warninqs to him?
l7 A Mr, Matlock continued -- tried to -- was
18 speakinq, sayinq that clearly he was not refusinq. I had to
19 continually talk over him. He could not just listen to what
20 I was sayinq, He had to be talkinq himself.
21 Q Okay, Do you have a pen with you?
22 A No, I do not.
23 (Whereupon, Judqe Oler handed him a pen.)
24 BY MR. HAECKLER:
25 Q Would you circle the paraqraph that you read
4
1 to Mr. Matlock?
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A
(Witness complied.)
And you have circled it with a blue pen?
Q
A
That's correct.
Q
Was a videotape made of this incident?
A
Yes.
Q
And your reading of the warnings on the DL 26
8 form, which is Commonwealth's Exhibit No, 1, is that on the
9 tape?
10
1l
A
Yes.
l2 going to play the tape at this time.
MR. HAECKLER: If you have no objection, I'm
13
MR, LAUER: Well, Your Honor, my only
l4 objection is from a foundation standpoint, that he's not the
15 person who -- I mean, I have no objection to it being played
16 later on, but at this point --
17
18 BY MR. HAECKLER:
19
MR. HAECKLER: All right.
Q
Did Mr. Matlock -- what kind of test was he
2l
20 requested to take?
Breath test,
22
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24
A
Q
A
Did he ever submit to any breath samples?
No,
Q
What we're about to see on the tape, is that
25 the extent of the request to submit to the chemical test?
5
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1 A Yes.
2 Q He wasn't asked to take the test after the
3 videotape goes off?
4 A No, he was not.
5 Q okay. So all the requests and, if you will,
6 refusal occur on the tape?
7 A Yes.
8 Q Okay.
9 MR. HAECKLER: I move for the admission of
10 Commonwealth's Exhibit No, 1,
11 MR. LAUER: No objection to that admission.
l2 THE COURT: All right. Commonwealth's
13 Exhibit 1 is admitted.
14 (Whereupon,
l5 Commonwealth's Exhibit No, 1
16 was admitted into evidence.)
17 MR. HAECKLER: Nothing further.
18 CROSS EXAMINATION
19 BY MR. LAUER:
20 Q Sir, you weren't present during the whole
21 period of time which my client was being videotaped, is that
22 fair to say?
23 A That's correct,
24 Q And what time did you walk into the room and
25 read Commonwealth's Exhibit No. 1 to my client?
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A I did not know the exact time.
a All right. Now you were requested to walk
into the room and speak to my client after he had already
been speaking to the processing officer, correct?
A Correct.
a Prior to my client even coming into the room
at this time? I mean, you previously already read him his
Miranda warnings, isn't that true?
A No.
a You hadn't discussed with him his Miranda
warnings at all?
A I did not read him his Miranda rights.
a It's clear he had already been under arrest,
right?
A Correct.
a He had been handcuffed?
A Correct.
Q And -- the arrest occurred at approximately
2:48 in the morning, correct?
A Approximately, yes.
Q The video shows you coming in at
approximately 3:44 in the morning?
A That's maybe what's on the video, but I think
we arrived a little earlier,
Q How much time would you have been sitting
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1 there earlier to the video being shown?
2
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5
6 15 minutes?
7
A
Maybe 15 minutes,
Fifteen minutes?
It would be hard for me to say at this point.
So he had been handcuffed outside there for
Q
A
Q
A
No. When I arrived at the booking, I brought
8 him inside. At that time Agent Akers took Mr. Matlock in,
9 and they generally get general information from him as to
10 where they live, things like that.
11
Q
The other officer, isn't it true that the
l2 other officer already told Mr. Matlock that he supposedly
l3 was considered to be a refusal at the time that you were
l4 asked to come in?
l5
16
A
Repeat the question, please.
Isn't it true that Mr. Matlock was told by
Q
l7 the processing officer, your actions constitute a refusal,
l8 and then you were requested to come in and read this paper
19 again?
20
A
I don't have -- I don't recall that. I'm not
21 saying it didn't happen. I just don't recall it.
22
23 this to him?
24
25
Q
Do you recall why you were called in to read
A
Yes, Mr. Matlock was uncooperative.
He was uncooperative. How was he
Q
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A
Q
the officers?
A
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officers?
A
Q
Exhibit 1?
A
1.
Q
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1 asked to read this betore it was even going to be orally
2 read to him, isn't that true?
3
4
A
That's correct.
Q
Okay. Now what did you actually see ot my
5 client personally that you used the word ot uncooperative?
6 What did he physically do?
7
8
9
10
11 uncooperative?
12
A
Physically?
Q
A
Yes.
Q
Nothing physically.
Okay. What did he verbally do that was
A
He would not let other people speak. He
13 would continually try to talk over myselt as I was reading
14 the implied consent.
15
16 uncooperative with?
Q
Who was the other person that he was
17
18
19
20
A
Agent Akers.
He's the only other person, agree?
For the time I was in there, yes.
Now how much time did this other otticer
Q
A
Q
21 spend with Mr. Matlock prior to you coming in there?
22
23
A
I would estimate ten minutes.
Ten minutes. Well, all we have is the
Q
24 videotape, is that tair to say?
25
A
That's correct.
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Q And the videotape would be accurate
presumably rrom the time that he's being explained the
implied consent law and being provided written material,
agree?
A Correct.
A Now you would agree with me that ir you were
going to take some type or chemical test which could artect
your privilege to drive, you would take that very seriously,
do you agree with me?
A Yes.
Q You would want to take time to actually
understand what was going on, agree?
A Yes.
Q And you would agree with me that on here it
even says he could lose his license up to 12 months, agree?
A Correct.
Q It also says on here that you have no right
to speak to a lawyer or anyone else, agree?
A Yes.
Q Nor does he have the right to remain silent,
agree?
A That's correct.
Q But it also says on here that constitutional
rights you have as a criminal defendant, commonly known as
Miranda rights, don't apply, agree?
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A
That's correct.
Q
So at least from a standpoint of, it's
3 tellinq the person that there are Miranda riqhtM and under
4 certain circumstances you have a riqht to a lawyer, aqree?
5
A
That's correct.
6
Q
Yet on the other hand, it says on this same
7 form that on this test, in which you are qoinq to qive
8 physical evidence, that that doesn't apply, aqree?
9
lO
A
That's what the form says, yes.
Riqht. Now it also talks about on here is
Q
1l he's beinq under arrest for drivinq under the influence of
12 alcohol or a controlled substance. Was he under arrest for
13 a controlled substance at that time, under the influence of
l4 a controlled substance?
l5
A
No.
l6
Q
Okay. Why wasn't that crossed off prior to
l7 qivinq this to him to read or explaininq it to him?
l8
A
Say it aqain.
Why wasn't that little section about beinq
19
Q
20 under arrest -- beinq under the influence of a controlled
2l substance crossed out if that's not a reason for his arrest?
22
A
There was some reason due to the fact of the
23 marijuana pipe I found in his vehicle.
24
Q
But he wasn't under arrest for beinq under
25 the influence of a controlled substance, aqree?
l2
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1 A At that time we were there to determine his
2 alcohol content, correct.
3 Q The answer to my question is, no, he was not
4 under arrest for drivinq under the influence of a controlled
5 substance, aqree?
6 A That's not true.
7 Q Well, you surely can't determine if a person
8 is under the influence of a controlled substance for
9 marijuana by a breath test?
10 A I can take him for a urine test afterwards.
11 Q You were qoinq to do that?
12 A He was beinq uncooperative at that time.
13 Q You were qoinq to take him?
14 A Yes, in fact, it was discussed.
15 Q With my client?
16 A No.
17 Q okay. So there's other issues here about
18 thinqs which my client may have been takinq into
19 consideration about an alleqed marijuana pipe that was found
20 in his vehicle, aqree? That's another important factor that
21 he should be takinq into consideration?
22 A If he was taking that into consideration.
23 Q That would show somebody who wanted some time
24 to think about this, agree?
25 A Agree.
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Q And you would aqree with me that if you've
never read one of these forms before that a person may need
four or five minutes to digest this at a minimum if you're
not a lawyer, aqree?
A No.
Q You don't agree with that?
A No, because I read that portion of the form
myself and timed myself --
Q Well, you read
THE COURT: Wait. Let the officer finish his
question.
THE WITNESS: -- and timed myself, and it
took me less than the four minutes that I gave him.
BY MR. LAUER:
Q How many times have you read this, sir, prior
to the night in question?
A Five times.
Q How many years have you been a police
officer?
A Five years.
Q How many people have you arrested for DUI?
A At least 20.
Q At least 20?
A I don't remember.
Q So you have substantially more experience in
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the knowledge of the law than what my client has, agree?
A That's correct.
Q And it took you what, four minutes to read
this yourself?
A No.
Q Well, reading it and understanding it are ~o
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7 different things, you would agree with me, wouldn't you?
8 Have you ever read a piece of paper that took you less than
9 four minutes yet still not understand it when you were done
10 reading it?
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That's correct.
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Q
All right. Was he, in fact, told that he had
13 to sign this?
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A
No.
Q
Now you did not specifically tell him that
16 his license would be suspended for one year for not taking
17 the test, isn't that true?
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A
Yes, I did. It's on the videotape.
That's on the videotape?
Yes, it is.
Okay. Now when you went in to see him
19
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20
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21
Q
22 though, after he spent one minute with the other officer or
23 a total of four minutes with the other officer, you did not
24 tell him, look, let's start this thing over again, what the
25 other officer told you about refusing does not apply, and
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1 we're going to take our time and go over this, did you?
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Q
No.
All right. So at the time that you had come
4 in, he had already been told -- back up. You've already
5 looked at this video, haven't you?
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A
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Q
Yes.
It's fair to say from the video that the
8 first officer made a statement that he refused after only
9 looking at this piece of paper for one minute, isn't that
10 true?
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I think he said, your actions will be
12 determined as a refusal.
Right. That's what he was told after one
13
14 minute, agree?
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Q
A
I believe that's what's on the videotape.
Right. When you came back in, you never told
17 him, look, what the other officer told you does not apply,
18 we're going to start this over, and I'm going to do the best
19 I can do to make sure you understand this, agree?
20
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Q
A
No, I did not tell him that.
All right. So all intents and purposes, he
Q
22 had no knowledge as to whether or not the first officer's
23 statement about a refusal was still in effect, agree?
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(No response.)
You have to agree with that, wouldn't you?
Q
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A I agree.
MR. LAUER: No further questions. Thank you,
sir.
THE COURT: Mr. Haeckler.
REDIRECT EXAMINATION
BY MR. HAECXLER:
Q The warnings that he would lose his license
for a year if he didn't take the test, that was read right
from the DL 26 form?
A That was read directly from that, and I
specifically said that while I was in his presence, if he
did not take the test, his license would be suspended for
one year.
Q Was that prior to reading the DL -- the
Commonwealth's Exhibit No.1?
A I believe that was after I read that.
MR. HAECKLER: Okay. Nothing else.
RECROSS EXAMINATION
BY MR. LAUER:
Q Well, sir, what would it matter if you came
in and read it a second time if you didn't clarify it with
him and tell him the first officer's opinion and statement
of his refusal is no longer applicable if the other officer
had already concluded that he refused?
A The other officer did not conclude. He said,
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your actions would be deemed a refusal. He did not say,
this is a refusal.
Q Well, what did he mean when he said that?
A His uncooperative nature.
Q What did he mean when he said, your actions
are deemed a refusal, that you are, in fact, refusing,
agree?
A That he wouldn't take the test. He was given
several more opportunities to take the test.
a Several more opportunities? Isn't it true,
sir, what had happened, the tube was just stuck out there
and said, go ahead, blow into it, after which, in fact, he
said, look, I don't understand what the implications are
here. Isn't that what happened?
A No.
o Okay. Now from a time standpoint, you told
him you were going to give him four minutes to look at this?
A That's correct.
a And you didn't even give him a full four
minutes?
A Yes, I did.
o That's your testimony?
A By my watch, it was four minutes.
o But from the tape?
A I said from my watch, it was four minutes.
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a Okay. So if the tape was different than your
watch, we don't know which one is accurate, I guess?
A I went four minutes by my watch.
a All right. So basically you gave him a total
of four minutes to -- let me ask you a question. You came
back in. Did you ever ask the specific question, what is it
that you don't understand about the form?
A I asked him if he was finished with the form.
o Did you ask him, what is it that you don't
understand about the form?
A No.
MR. LAUER: No further questions.
THE COURT: Mr. Haeckler.
MR. HAECKLER: No further questions.
THE COURT: All right. I have a couple, if I
might.
BY THE COURT:
o I realize some of this will be on the tape,
but the tape won't be transcribed, so when did you arrest
the Defendant?
A I stopped the Defendant at 2:48, and I would
say maybe 15 minutes later I actually arrested him at the
scene.
o And that's 2:48 a.m.?
A That's correct.
19
3 stationed at the Lower Allen Township Police Department.
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Q
And you drove him where then?
To the West Shore Booking center, which is
A
Q
And tell me what happened when you got there?
I took Mr. Matlock in. I secured my weapon.
A
6 At that time Agent Akers took him into the next room.
13 not stay in view of him the whole time. I just wanted to
14 see what was going on, and I walked back out, but I was not
15 in the room the whole time.
16 Q And you said that you felt that he was being
17 uncooperative. What did you see that led you to believe
18 that?
20 Matlock, he would talk and say, clearly I'm not refusing.
21 He would repeat things like that over and over again as if
22 he was playing to the camera, and he would actually look at
23 the camera, and he would even talk about, I'm stating for
24 the camera. When I went to read him the implied consent, he
25 continued to talk. He asked to read it. I didn't believe I
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8 center?
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Agent Akers is an employee of the booking
Q
A
That's correct.
Q
And so at that point Mr. Matlock was out of
A
I walked in and out maybe twice, but I did
A
Every time we would try to talk to Mr.
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1 was going to be able to read the whole implied consent
2 without interruption, and I thought I'd let him have the
3 opportunity to read it afterwards.
4 So I read it, but he continued to talk the
5 whole time, not listening to anything I said. And I gave
6 him the opportunity to read the implied consent. I said,
7 you will have four minutes. I will time you. You will have
8 four minutes. I gave the paper to him. I walked out. I
9 walked outside of the camera, but I can see into the room.
10 I was looking in the next room into the doorway and I timed
11 it four minutes.
12 I walked back in. I asked him if he was
13 done. He said that he wouldn't -- he wouldn't tell me -- he
14 didn't say if he was done or not. I asked him where he was
15 at. He didn't point to where he was at. And then I took
16 the form from him. I felt at this time he was just trying
17 to stall the whole time, and I still feel that way.
18 THE COURT: All right. Any further
19 questions?
20 RECROSS EXAMINATION
21 BY MR. LAUER:
22 Q Well, sir, you mean if he had taken four
23 minutes and ten seconds that he was stalling?
24 A If he was concerned about his rights, he
25 would have listened to what I was explaining in the first
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place.
Q He was also reading?
A I don't know if he was reading. I doubt he
was.
Q Well, you have no knowledge of that? You
weren't there, right?
A I didn't see his eyes moving on the
videotape.
Q That night though you didn't know if he was
reading or not?
A That's correct.
Q In fact -- no questions, sir. No questions.
THE COURT: Mr. Haeckler, any further
questions?
MR. HAECKLER: No further questions.
THE COURT: Okay. You may step down. Thank
you.
(Whereupon, the testimony of Ptl. Shaun Allen
Felty concluded.)
22
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CERTIFICATION
I hereby certify that the proceedings are contained
fully and accurately in the notes taken by me on the above cause
and that this is a correct transcript of same.
-----------------------------
The foregoing record of the proceedings on the hearing
of the within matter is hereby approved and directed to be
filed.
u,
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.,.......,
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVER LICENSING,
Appellee
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
SCOTT MARK MATLOCK,
Appellant
.
.
.
.
: 95-6647 CIVIL TERM
IN RE: TESTIMONY OF PTL. SHAUN ALLEN FELTY
Proceedings held before the Honorable
J. WESLEY OLER, JR., Judge,
on May 9, 1996, commencing at 1:34 p.m.
Cumberland County Courthouse, CarliSle, Pennsylvania,
in Courtroom No.4.
APPEARANCES:
MATTHEW X. HAECKLER, ESQUIRE
For the Appellee
PATRICK F. LAUER, JR., ESQUIRE
For the Appellant
",:_".~.,(,n::q .~'~
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May 9, 1996
Courtroom 4
1:34 p.m.
MR. LAUER: I call Officer Feltry.
Whereupon,
SHAUN ALLEN FELTY
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LAUER:
Q Officer Feltry, isn't it true that on the
night in question here, during the videotaping, that
THE COURT: Wait. Could we get his full
name?
BY MR. LAUER:
Q
sir?
A
Q
record?
A
Q
with?
A
Q
MR. LAUER: I'm sorry.
Could you state your name for the record,
Shaun Allen F6lty.
Would you spell your last name for the
F-e-l-t-y.
And, Officer Felty, which department are you
Hampden Township Police.
Okay. Isn't it fair to say, Officer, that
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during the time of the videotaping, that my client did not
have -- Scott Matlock didn't have slurred speech, isn't that
true?
A That's true.
Q Prior to videotaping, even at the scene, he
didn't have any slurred speech there, isn't that true?
A That's true.
Q And is it not also true that he did not have
bloodshot eyes?
A That's true.
Q Okay. He was cooperative with you completely
at the scene, isn't that true?
A That's correct.
Q And based on your probable cause that
requested him to take the breath test, you based this upon
what you allegedly observed at the scene, agree?
A Yes.
Q Okay.
THE COURT: May I just interrupt for one
moment? I think we had a stipulation to the effect that the
arrest in this case was proper.
MR. HAECKLER: I believe we had a stipulation
as to the officer having reasonable grounds to believe that
he was driving under the influence and that he was arrested.
THE COURT: I certainly won't stop you from
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1 asking the questions, but that's my recollection also, Mr.
2 Lauer.
3 MR. LAUER: Yes. Your Honor, just for the
4 record, that was for purposes only of because there is a
5 difference in burden for this as opposed to the contest in
6 the case of trial on the basis for arrest, the lawfulness of
7 the arrest.
8 THE COURT: okay. And these questions are
9 going toward what issue now?
10 MR. LAUER: To the issue of my client's
11 willful refusal. We intend to show that through his
12 actions, that he was competent and that he wasn't given an
13 opportunity to fully understand, and that he, in fact, did
14 show all signs of being not impaired from the alcohol which
15 would go to why he -- they deemed it a refusal and he wasn't
16 given an opportunity to even take the test.
17 THE COURT: All right.
18 BY MR. LAUER:
19 Q Dealing with this situation, you had only
20 given him from the videotape -- you were present during the
21 videotaping, agree?
22 A portions of it, yes.
23 Q Isn't it true, sir, that he wasn't even given
24 four minutes or even three minutes to read the documents
25 that were given to him?
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1 A He was given four minutes.
2 Q Exactly?
3 A By my watch, yes.
4 Q Now you didn't tell him that if you do not
5 consent and blow into this machine on the fourth minute,
6 that that will be a refusal, agree?
7 A Agreed.
8 Q All right. Now you would also agree with me,
9 sir, that at the scene, when you asked him to exit his
10 vehicle, he had no difficulty exiting the vehicle, agree?
11 A That's correct.
12 Q He didn't lean or sway or stumble when he
13 exited the vehicle, agree?
14 A That's correct.
15 Q And when you asked him certain questions at
16 the scene, he appeared to understand what you were asking
17 him, agree?
18 A Not initially.
19 Q okay. Well, you asked him to do certain
20 coordination tests, agree?
21 A That's correct.
22 Q And like, for instance, on the walk and turn
23 test, you asked him to take nine steps, agree?
24 A That's correct.
25 Q And he didn't sway or wobble when he walked
5
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1 the first nine steps, isn't that true?
2 A I believe my testimony was earlier that he
3 stepped off the line.
4 Q Well, I'm asking you today. Isn't it true --
5 the question is, isn't it true, he did not swsy or wobble
6 when he walked the first nine steps going down?
7 A He stepped off the line.
8 Q So your answer is, no, he didn't sway or
9 wobble then, agree?
10 A Correct.
11 Q All right. And isn't it true, sir, you asked
12 him to count out loud, and he did that, agree?
13 A Agreed.
14 Q And he also kept his arms at hi. side as you
15 instructed him, agree?
16 A Agreed.
17 Q And you would also agree with me, sir, that
18 during the instruction stage of the walk and turn test, he
19 did not sway from left to right when you were giving him the
20 instructions, agree?
21 A Agreed.
22 Q Okay. And when you're aSking him to do the
23 instructions, his feet are in a locked position, left leg
24 out and his right leg locked in front of that, agree?
25 A I don't recall.
6
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1 Q You don't recall what position you asked him
2 to stand in in the instruction stage of the walk and turn?
3 A I know what position I asked him to stand in.
4 I do it all the time. I don't recall without looking at my
5 notes or my report whether he lost his balance or not.
6 Q Do you have those reports with you?
7 A Yes.
8 Q Please take a look at those.
9 THE COURT: We will let the record indicate
10 that the witness is reviewing his report.
11 THE WITNESS: Repeat your question.
12 BY MR. LAUER:
13 Q You asked him in the instruction stage of the
14 walk and turn test to put his left leg out and put his right
15 foot in a heel-to-toe position, is that true?
16 A That's correct.
17 Q When you asked him to do that, he did not
18 sway from left to right during that whole period of time,
19 agree?
20 A That's correct.
21 Q How long was it that you -- how long was he
22 standing in that position for you to complete the
23 instructions approximately?
24 A I would say less than 30 seconds.
25 Q Okay. So now you say less than 30 seconds,
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1 so it could have been anywhere from 20 to 30?
2 A Could be.
3 Q Okay. Now when you also asked him to turn
4 and pivot in a certain manner, he did that correctly, isn't
5 that true?
6 A That's correct.
7 Q And he didn't sway or lose his balance when
8 he did that, agree?
9 A I don't -- the turn sometimes is confusing to
10 an individual who is not intoxicated, and I don't always pay
11 particular attention to the turn itself. It's the nine
12 steps down and nine steps back.
13 Q So when you're -- but isn't it true, sir,
14 you're certified in giving this test, agree?
15 A That's correct.
16 Q And a turn is something in which a person is
17 judged on, agree?
18 A That's right.
19 Q So what you're telling me is, a person could
20 actually do something wrong --
21 A If the person
22 Q Please let me finish. A person could do
23 something wrong with what they're being judged on and not be
24 impaired, according to what you're telling me, agree?
25 A One item, that's true.
8
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Q
whole thing.
turn, right?
A
Q
right?
A
Q
agree?
A
Q
A
Q
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Please answer my question.
That's losing your balance from what I
Q
A
understand.
Q That's what you understand. A person --
THE COURT: I'm a little confused about these
questions. Is there some dispute as to his competency to
understand what was said about the implied consent law?
MR. LAUER: Yes, Your Honor, it's because
they told him he only had four minutes, and our position
through the testimony will be that they just never even gave
him an opportunity to understand. If they're going to argue
that he was so impaired, that's why he intentionally tried
to avoid and buy time, he'll testify that's not the case,
that he was able to do all these things correctly that
night, and he was competent, but they just never gave him a
chance to do it. I won't be on this real long.
THE COURT: All right. Go ahead.
BY MR. LAUER:
Q He did keep his arms at his side coming back
the nine steps, agree?
A Agreed.
Q And what color was the line that you asked
him to walk on anyways?
A It's white.
Q How wide was the line?
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A I would estimate five inches.
Q You would agree with me that a person could,
just as on a turn, not do a turn properly, and not be
impaired? A pereon could step off of a line and not be
impaired, agree?
A I disagree with that.
Q All right. Did you give him a chance to
practice this?
A No.
Q Did you ask him if he had any physical
problems prior to asking him to do it?
A No.
Q Okay. A person can step off of a line
because of a physical problem if you didn't know it, that
could be why he did it as opposed to being impaired from
alcohol, agree?
A Agreed.
Q So as far as his stepping off the line, you
don't knoW what that was from, agree, other than it
happened?
A He didn't say anything.
Q You didn't ask him either, did you?
A No.
Q You didn't ask him why it occurred, right?
A That's right.
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1 Q Now when he supposedly stepped off the line
2 on the second nine steps coming back, which step did that
3 supposedly occur on?
4 A Permission to review my notes, Judge?
5 MR. LAUER: Please.
6 THE COURT: certainly.
7 THE WITNESS: I didn't I indicated that he
8 stepped off the line one time, and I did not indicate which
9 step.
10 BY MR. LAUER:
11 Q So it could have been on the first step, the
12 third, the eighth, you just don't even know?
13 A I do not know which step he stepped off the
14 line, that's correct.
15 Q Okay. Now dealing back at the scene -- back
16 at the booking station, isn't it true, sir, that Mr. Matlock
17 did not begin to even speak out or speak over anyone's voice
18 until after you told him this was a refusal?
19 A No.
20 Q Your testimony is that he was talking and
21 interrupting people prior to the time in which he was told
22 he would be a refusal?
23 A He would not even let us begin to read the
24 refusal. He would not let us even talk to him.
25 Q He would not let you begin to read him the
12
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1 refusal?
2 A I would read, and he would talk louder as I
3 was reading the refusal.
4 Q What is the refusal? What are you talking
5 about?
6 A The form.
7 Q The refusal form?
8 A Yes.
9 Q But that's after you had already told him you
10 considered it a refusal, agree?
11 A No.
12 Q Well, you told him it was a refusal, right?
13 A We told him it would be considered a refusal.
14 We didn't tell him it was a refusal.
15 Q What's the difference between telling someone
16 their actions are considered a refusal or telling him,
17 that's a refusal? What's the difference?
18 A The difference is, at that point it would be
19 over. It would be a refusal. At that point we were
20 considering it as being a refusal, and we were trying to
21 seek his cooperation.
22 Q My point being is, when you told him his
23 actions are considered a refusal, you had deemed it a
24 refusal, agree?
25 A No.
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Q
Well, you're telling me that if he said,
okay, I'll take the test right now, you would have given him
another chance?
A He was given the opportunity to read the
form. He was given the opportunity to listen to me read the
form. He did not indicate that. Continuously during the
reading of the form, he continuously tried to talk over as I
was reading. After all that, that's when he was told that
his actions would be deemed a refusal.
Q Did you ask him what he didn't understand
about the form before you told him it constituted a refusal?
A I asked him where he was at on the form.
Q Specific question. Did you ask him what he
did not understand about the form?
A No.
Q Why didn't you ask him that?
A Somebody who has a question or a
misunderstanding would obviously ask that question.
Q Now dealing with -- you had also earlier had
read him his Miranda warnings, isn't that true?
A No.
Q Isn't it true, sir, you told him earlier at
the scene that he was placed under arrest?
A Yes.
Q And when a person is placed under arrest,
14
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1 basically they're entitled to a lawyer, isn't that true?
2
A
Q
If there's further questioning.
And you questioned him at the scene, isn't
3
4 that true?
Not after he was placed under arrest, no.
5
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Did you ask him how much he had to drink
7 after he was handcuffed?
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A No.
9
Q In the car?
A No.
10
Q Didn't you ask him if he had been at Wanda's
prior to his arrest?
A That was initially when he was in the
11
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vehicle.
15
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Q
A
When he was in the vehicle?
His personal vehicle, when I stopped him.
Is that information you were going to use him
Q
18 against him in court, isn't that true, anything he said?
19 A At that time I was detaining him.
20 Q You were going to use it against him in
21 court, agree? Anything he said at that point you intended
22 to use?
23
24
A
That's correct.
Agree?
Q
A
That's correct.
25
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Q
So if he thought he had a prior right to a
2 lawyer after being handcuffed -- and most people are
3 entitled to a lawyer?
4
A
He wasn't handcuffed at that point.
Well, he was under arrest, agree?
No, he was under arrest when I told him he
5
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6
A
7 was under arrest.
8
When was that?
That was after I asked him several questions
9
Q
A
10 while he was in his vehicle. That was after I asked him
11 several questions as I was standing there during the field
12 sobriety and after he conducted the field sobriety. Then he
13 was placed under arrest and placed in the patrol car. There
14 were no questions asked by me relating to the offense itself
15 afterwards.
16
Well, there were no questions at all asked of
Q
17 him after he was handcuffed?
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I said, in reference to the offense.
But wasn't he questioned back at the station?
Personal information only.
Well, that was going to be used against him,
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22 agree?
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Booking information.
MR. HAECKLER: Your Honor, I'm going to
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MR. LAUER: I'll move on, Judge.
MR. HAECKLER: I'm not sure what r.levance it
has here.
THE COURT: All right.
BY MR. LAUER:
Q Now the other coordination tests that you had
given him was a one leg stand, agree?
A Yes.
Q And you asked him to stand on one foot and
count to 30, isn't that true?
A That's true.
stone-cold sober.
Q He did stand on one leg and count to 30,
isn't that true?
A He said, I couldn't do this test when I was
Q So if a person couldn't do that test,
wouldn't that mean they were impaired as well, agree?
A That in itself, no.
Q Right. There were no other coordination
tests done at the scene, agree?
A The walk and turn.
Q Right, other than that one, agree? other
than the walk and turn, there were no other coordination
tests done?
A That's correct.
17
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1 Q And when you asked him to walk from hi. car,
2 you asked him to walk to a certain location to do the
3 coordination tests, agree?
4 A That's correct.
5 Q How far did you ask him to walk?
6 A Maybe 30 to 40 feet.
7 Q Right. In that 30 to 40 feet, he had no
8 problems with his balance walking from one location to the
9 other?
10 A I did not notice any problems.
11 Q So your answer to the question is, you didn't
12 notice he walked without any problems like a sober person
13 would, agree?
14 A Agree.
15 Q All right. And he didn't show any signs of
16 being impaired from alcohol at all from the time you asked
17 him to walk from his car to that location or where you asked
18 him to do the coordination tests, agree?
19 A Not true. His speech was slow.
20 Q Slow?
21 A Right. At times he couldn't or wouldn't
22 answer questions.
23 Q Well, so my point being is this though, a
24 person is not required to answer your questions, agree?
25 A It was certain questions he was answering and
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certain questions he wasn't.
Q My point is, he had no obligation to answer
any of your questions other than to give you a license or
registration? The fact that he chose not to answer any of
your questions or some and not others, that doesn't mean
he's impaired because he had a right not to do it, agree?
A Agreed.
Q All right. And as far as you say, when you
asked him for his license and registration, he handed that
information to you without any difficulty at all, agree?
A That's correct.
Q All right. And people who are slow with
their movements, that's usually a sign of a person impaired?
So as far as his movements go, and when he's sitting in his
car, he didn't show any signs of being impaired, agree?
A No.
Q No meaning that he didn't show any signs of
being impaired, agree?
A I didn't indicate anything -- nothing he did
would indicate in his movements. They weren't slow, they
weren't fast.
Q He did it like a normal sober person, agree?
A Some of his information was already -- he
had --
Q My point being, from what you could see of
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his movements, he moved like a sober normal person, agree,
when he's in his car?
A He was just sitting there.
Q Right. When he was sitting there, he gave
you information, and appeared to be cognizant and appeared
to you like a sober person would, agree?
A Well, no.
Q Okay. What did he do?
A Most people look to me when they talk to me.
He didn't look at me.
Q Did he tell -- did you tell him he had to
look at you?
A No.
Q How long was he sitting in his car not
looking at you prior to asking him to exit?
A I would say approximately 45 seconds.
Actually, a little bit longer. It would be longer than
that.
Q Well, you looked at his eyes if you were
looking in his car?
A He wouldn't look at me.
Q You looked in his eyes though, isn't that
true?
A At one point he may have looked at me, yes.
Q So he did look at you at a point in time when
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1 he was sitting in his car among the 45 seconds?
2 A He was looking straight ahead. Once or twice
3 he might have looked up at me.
4 Q My point is, the fact that he did that, that
5 doesn't mean he's impaired, agree?
6 A That alone, no.
7 Q So the 45 seconds there, he may have looked
8 at you one or two times when he was sitting in the car,
9 agree?
10 A One.
11 Q Didn't you just testify it was one or two
12 times a second ago?
13 A Did I?
14 Q Yes.
15 A He stared straight ahead most of the time I
16 was there at the vehicle.
17 Q Well, you didn't ask him to look at you,
18 agree?
19 A Yes, that's right. I did not.
20 Q So if you didn't ask him to do it, he wasn't
21 refusing or being uncooperative, agree?
22 A That's correct.
23 Q You weren't basing your arrest on the fact
24 that he looked straight ahead for 45 seconds, agree?
25 A That's correct.
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Q And that doesn't show any signs of impairment
by doing that, agree?
A That in itself, no.
Q Now when he walked the 40, 30 feet or
whatever it was back for the coordination test, he walked
that distance like a normal sober person, agree?
A I didn't recall anything out of the ordinary.
Q So you would agree with me that he did walk
like a normal sober person, agree?
A Agreed.
Q sir, from the time that you read him the
original implied consent law, less than four minutes went by
before you deemed it a refusal, isn't that true?
A No.
Q Do you think that that's reasonable only to
give a person?
A I timed myself, and it only took me two and a
half minutes.
Q Of course. How many times have you read the
implied consent law to other people?
A I would say less than 10.
Q You've only arrested 10 people?
A I've only had three people refuse.
Q How many times have you read the implied
consent law to people since you've been a police officer?
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LesS than 10.
How long have you been a police officer?
Five years.
You've only made that amount of arrests?
I usuallY take an individual for blood, and
.......
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from the very start, they are cooperative.
That's not my question. Every time you make
8 a DUI arrest, you got to read them the implied consent law,
9 agree?
12 to take blood, and then you only read the implied consent
13 law if they tell you they're not going to?
15 doing, that they're under arrest, that I believe they're
16 driving under the influence, that I'm taking them to
17 whatever hospital it is, okay. At that time I'm going to
18 ask them to submit to a blood test for a determiner of
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No.
Q
So you just tell people, come in, we're going
A
I explain to the person exactly what I'm
19 alcohol content. I tell them that if they were to refuse,
20 it will __ it could be a one year suspension. And I ask
21 them if they will take the test or not, and I've only had
22 two people refuse, and two of them were breath.
23
My point is, how many DUI arrests have you
Q
24 made since you've been a police officer?
I would say approximatelY 20.
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A
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law to him?
A
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A
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Q Okay. So orally you told him that he didn't
have the right to a lawyer?
A I read from the form that this was a civil
proceeding. He has no right to an attorney in reference to
the test.
Q And then basically, at the very most,
according to your testimony, six minutes went by. You
deemed that a refusal, agree?
A No. I know he was given four minutes to read
the form at that time. I asked him where he was at. He
just sat there. He wouldn't indicate where he was at on the
form. I do not know how much time it was between the time
that I was talking with him.
Q Well --
A I can't say it was six minutes. I know I
gave him four minutes to read the form.
Q Is there a policy that says you are given a
certain period of time, and if you don't do it within that
period of time, that that constitutes a refusal?
MR. HAECKLER: I object. That's really a
question of law. It's not a question of fact. This witness
shouldn't be required to answer.
MR. LAUER: Well, Your Honor, it would go to
how this officer treats other -- or their department treats
other individuals, and if they give another person eight
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minutes and they give my client four minutes, that would be
discriminatory.
TilE COURT: You may answer the question, if
you have an answer.
THE WITNESS: I could not even answer that
because I was only called in to read the refusal on the tape
because it was in the experience of the booking agents that
this is how the event was leading, to a refusal, and I've
only been to booking for breath with maybe three
individuals. I do not know what their policy is.
BY MR. LAUER:
Q You searched my client's vehicle that night,
correct?
A That's correct.
Q Where were you -- where was he at the time
you searched his vehicle?
A In my patrol car.
Q Now after you arrested him though, you took
him back to the station, agree?
A I took him to the booking center.
Q Right. And when you asked him to exit the
car to go into the booking center, he had no problems?
A I had his arm.
Q That's standard because you had the person in
custody?
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A Not nec.ssarily.
Q You didn't ask him if he needed any help,
agree?
A I didn't ask him, no.
Q You just did that yourself?
A That's correct.
Q But when he walked into the station, he
walked in without any difficulty, agree?
A I was obviously supporting him.
Q Well, not because he needed it though, but
because you just did it independently?
A How can I answer your question? If I'm
supporting him, how do I know if he had any difficulty?
Q Where did you have your hand on his body?
A His arm.
Q With what hand?
A One of my hands. I don't know which side.
Q You don't remember if you were on his right
side or his left side?
A No.
Q Okay. He walked though, he didn't stumble
when he walked in?
A He didn't fall to the ground, no.
Q He didn't sway from left to right either?
A Not that I noticed.
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1 Q You never felt his body pulling away froM
2 your body when you supposedly had your hand on his arm or
3 elbow, agree?
4 A No.
5 Q Sir, just -- getting to this reason for
6 asking him to take this test, you didn't smell the odor of
7 alcohol on his breath when you were at the booking station,
8 agree?
9 A For the brief time that I was with him, no.
10 Q All right. So at the booking center you
11 didn't even smell the odor of alcohol, right?
12 A That's correct.
13 Q And you would agree with me that even if you
14 smelled alcohol on someone, that wouldn't necessarily mean
15 that they were impaired from it, agree?
16 A We know that impairment starts with the first
17 drink.
18 Q Well, we don't know that. My point being, I
19 could drink a drink right now and have the odor on my breath
20 and be able to practice law and drive a car, depending on
21 how much I had, agree? Correct?
22 A Yes.
23 Q My point being, just because you sMell it
24 doesn't mean you're impaired from it?
25 A That's correct.
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1 Q He was very respectful of you that night
2 though, isn't that true? He didn't swear at you or curse
3 you?
4 A No.
5 Q Right?
6 A That's right.
7 Q He never was uncooperative with you other
8 than saying he needed time to read this document at the
9 booking center, agree?
10 A No, that's not true.
11 Q Well, how was he supposedly uncooperative
12 that night?
13 A As the booking agents and myself are trying
14 to speak to him, he consistently would talk over us. He
15 would talk louder than we were.
16 Q other than that?
17 A He wouldn't answer some questions.
18 Q Well, he had a right not to do that. You
19 consider that if a person chooses not to answer you, that to
20 be uncooperative?
21 A That's an indication.
22 Q No, I'm saying uncooperative. I mean, he had
23 a right not to talk, right?
24 A That's true.
25 Q So if you told someone they had a right to
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1 remain silent, that was part of their rights, and they say,
2 well, okay, I'm going to elect those rights, that wouldn't
3 mean they wouldn't cooperate?
4
A
He would elect those rights onlY at specific
5 timeD.
That doesn't mean he was uncooperative, that
6
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7 just means he chose not to answer them?
8
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No, he was uncooperative.
He was surely cooperative about giving you
9
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10 the license and --
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That was prior to him knowing he was under
12
arrest.
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Q He went back with you to the booking center
and was cooperative doing that, right?
A correct.
14
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Q He was only uncooperative after you told him
he had four minutes?
16
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No.
19
20 to that?
Q
You're telling me he was uncooperative prior
21
A
Yes.
22
MR. LAUER: No further questions, Your Honor.
THE COURT: Mr. Haeckler.
23
24 CROSS EXAMINATION
25 BY MR. HAECKLER:
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Q Just to clarify that. Your reasonable
grounds to believe that he was under the influence, that
didn't -- that wasn't relying upon one thing, was it?
A No, it wasn't.
Q And you included the manner in which he was
driving his vehicle?
A That's correct.
Q As well as his conduct, is that correct?
A That's correct.
Q What he said and what he didn't say?
A That's correct.
MR. HAECKLER: Nothing further.
THE COURT: Mr. Lauer, anything further?
MR. LAUER: No, sir.
THE COURT: All right. You may step down.
Thank you.
(Whereupon, the testimony of Ptl. Shaun Allen
Felty concluded.)
31
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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.
'--
The foregoing record of the proceedings on the hearing
of the within matter is hereby approved and directed to be
filed.
Date
{,
32