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Commonwealth v. Mickley3/25/2004
1 This is an appeal from the judgment of sentence entered after Appellant was convicted by a judge sitting without a jury of two counts of driving under the influence of alcohol and one count of careless driving. For the reasons that follow, we affirm.
2 The trial court ably summarized the facts and procedural history as follows:
Trooper John Yunk of the Pennsylvania State Police encountered [Appellant's] vehicle at approximately 2:56 a.m. on the morning of November 4, 2001. [Appellant] was traveling south on tate Route 34. The trooper was traveling directly behind her. His attention was drawn to her vehicle because she was weaving from side to side within her own lane of travel.
As they approached the intersection with tate Route 174, [Appellant] crossed the fog line onto the berm of the road. The berm is approximately three feet wide and is paved. Her entire rear wheel crossed over the line. While she was still on the paved portion of the berm, she was "well over" the fog line. During the next three-quarters of a mile, she crossed the fog line three more times. Each crossing was similar to the first[,] i.e., her entire rear wheel was over the fog line onto the paved berm. It is also noteworthy that the crossings occurred on a relatively straight stretch of road.
Route 34 is a two lane highway. [Appellant] and the trooper encountered several vehicles traveling in the opposite direction. Two of the fog lane crossings were in response to that vehicular traffic. The officer testified that in his training and experience this is an "indicator for driving under the influence ." In any event, after she crossed the fog line for the fourth time, the officer initiated a traffic stop in order to issue a citation for violation of Section 3309(1) of the Vehicle Code. [Trooper Yunk followed Appellant for a distance of approximately seven miles before effectuating the traffic stop.]
As the officer approached [Appellant's] vehicle, he noted the classic indicia of intoxication. There was a strong odor of alcohol, her speech was slurred, and she had a bloodshot and glassy eye. [Appellant has an unspecified problem with her other eye that did not allow the trooper to make a reliable observation of it.] The officer asked her to get out of the vehicle. When she did, he noticed that the strong odor of alcohol was coming from her breath. As she was standing outside the vehicle, she also had a very difficult time finding her documents. While she was looking for the documents, the officer asked her whether she had been drinking. She responded that she had consumed four beers.
After having failed the field sobriety tests, [Appellant] was placed under arrest and transported to the central booking center. Before her processing began, she was advised that her words and actions were being recorded. Additionally, the booking center contains five prominently displayed signs advising all occupants that audio and visual recording is taking place. [The video camera was pointed out to her at the time her processing began.]
[Appellant] was advised of her O'Connell warnings [Dep't. of Transportation v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989)] and she agreed to submit to a breath test. The booking center personnel explained the operation of the Intoxilyzer 5000. During the first test, she did not blow any air into the instrument. As a result, the machine timed out and shut down. It printed out a test ticket indicating "invalid test." Trooper unk advised [Appellant] that she could submit to a blood test, or have her failure to provide breath be considered a refusal. [He again advised her of the O'Connell warnings]. [Appellant] indicated that s
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