1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of: : 4 : Bobby Yates : Case No. 08-283-TR-CVF 5 : Notice of Apparent : 6 Violation and Intent to : Assess Forfeiture. : 7 8 - - - 9 PROCEEDINGS 10 before Mr. Kerry H. Sheets, Attorney Examiner, at the 11 Public Utilities Commission of Ohio, 180 East Broad 12 Street, Room 11-F, Columbus, Ohio, called at 10:00 13 a.m. on Wednesday, June 18, 2008. 14 - - - 15 16 17 18 19 20 21 ARMSTRONG & OKEY, INC. 185 South Fifth Street, Suite 101 22 Columbus, Ohio 43215-5201 (614) 224-9481 - (800) 223-9481 23 Fax - (614) 224-5724 24 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 2 1 APPEARANCES: 2 Mr. Bobby Yates 203 Vice Boulevard 3 Avilla, Ohio 46710 4 Pro Se 5 Mark Dann, Ohio Attorney General Duane W. Luckey, Senior Deputy 6 Attorney General Public Utilities Section 7 By Mr. Thomas Lindgren and Ms. Sarah Parrot 8 180 East Broad Street, 9th Floor Columbus, Ohio 43215-3793 9 On behalf of the Staff of the Public 10 Utilities Commission. 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 3 1 INDEX 2 - - - 3 WITNESS PAGE 4 Jonathan M. Holzworth Direct Examination by Mr. Lindgren 5 5 Cross-Examination by Mr. Yates 10 Redirect Examination by Mr. Lindgren 33 6 Recross-Examination by Mr. Yates 37 7 John Canty Direct Examination by Ms. Parrot 37 8 Cross-Examination by Mr. Yates 46 9 Bobby Yates Direct Testimony by Mr. Yates 48 10 11 - - - 12 INDEX 13 STAFF EXHIBITS IDFD ADMTD 14 1 - Driver/Vehicle Examination Report 7 48 15 2 - Civil Forfeiture Violations Chart 41 48 16 3 - Notice of Apparent Violation and 43 48 Intent to Assess Forfeiture 17 4 - Notice of Preliminary Determination 44 48 18 - - - 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 4 1 WEDNESDAY MORNING Session, 2 June 18, 2008. 3 - - - 4 THE ATTORNEY EXAMINER: The Public 5 Utilities Commission has set for hearing at this date 6 and time Case 08-283-TR-CVF, In the Matter of Bobby 7 Yates. 8 My name is Kerry Sheets. I am an 9 attorney-examiner for the Commission. I've been 10 assigned to hear this case. 11 May I now have the appearances of the 12 parties, please. 13 MR. LINDGREN: Your Honor, on behalf of 14 the staff of the Commission, Attorney General Nancy 15 Rogers, and Duane Luckey, section chief of the Public 16 Utilities Section, by Thomas Lindgren and Sarah 17 Parrot, assistant attorneys general, 180 East Broad 18 Street, Ninth Floor, Columbus, Ohio 43215. 19 THE ATTORNEY EXAMINER: Mr. Yates, your 20 name and address. 21 MR. YATES: My name is Bobby Yates. I 22 live at 203 Vice Boulevard in Avilla, Indiana. 23 THE ATTORNEY EXAMINER: Any preliminary 24 matters to take care of, Mr. Lindgren? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 5 1 MR. LINDGREN: No, your Honor. 2 THE ATTORNEY EXAMINER: Do you have 3 witnesses to call? 4 MR. LINDGREN: Yes. Shall I proceed? 5 THE ATTORNEY EXAMINER: Yes. 6 MR. LINDGREN: Thank you. The staff 7 calls J. M. Holzworth to the stand. 8 - - - 9 JONATHAN M. HOLZWORTH 10 being first duly sworn, as prescribed by law, was 11 examined and testified as follows: 12 DIRECT EXAMINATION 13 By Mr. Lindgren: 14 Q. Mr. Holzworth, will you state your name 15 for the record please? 16 A. Jonathan M. Holzworth. 17 Q. And what is your business address? 18 A. 3665 State Route 4, Bucyrus, Ohio. 19 44820. 20 Q. Where are you employed? 21 A. I'm employed for the State of Ohio, 22 Highway Patrol, at the Bucyrus District Headquarters. 23 Q. And what is your position with the State 24 Highway Patrol? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 6 1 A. Motor carrier enforcement inspector. 2 Q. How long have you been in that position? 3 A. Ten years. 4 Q. And what are your duties as a motor 5 carrier enforcement inspector? 6 A. We patrol the highways, inspect vehicles 7 for safety and drivers. 8 Q. Do you hold any certifications in 9 connection with your employment? 10 A. Yes, I do. I hold a Motor Coach, North 11 American Standard, HazMat, and I believe that's all. 12 Q. Thank you. Are you familiar with the 13 Federal Motor Carrier regulations pertaining to 14 driver's record of duty status? 15 A. Yes, sir. 16 Q. Thank you. Do you recall inspecting a 17 vehicle operated by Bobby Yates on March 21st of 18 2007? 19 A. After reviewing this inspection, yes, I 20 do. 21 Q. Thank you. 22 MR. LINDGREN: May I approach the 23 witness? 24 THE ATTORNEY EXAMINER: Yes, go ahead. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 7 1 (EXHIBIT MARKED FOR IDENTIFICATION.) 2 Q. Officer Holzworth, I have given you what 3 I have labeled for identification as Staff Exhibit 1. 4 Do you recognize that document? 5 A. I do. 6 Q. Did you prepare this document? 7 A. Yes, sir. 8 Q. Does everything appear to be the same as 9 when you originally prepared this document? 10 A. Yes. 11 Q. Thank you. Could you describe what this 12 document is? 13 A. This is a Vehicle/Driver Examination 14 Report that we print out after we actually do the 15 inspection on roadside. We enter all the information 16 and any violations collected upon the inspection and 17 then just give a brief description, cite to the 18 violation section code. 19 Q. Did you prepare this on the same date as 20 your inspection of the vehicle -- 21 A. Yes. 22 Q. -- stated here? 23 A. Yes, I did. 24 Q. Is this report a type regularly used in ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 8 1 connection with your employment? 2 A. Yes, sir. This is out of the Aspen 3 program of the federal government. 4 Q. Thank you. Does this report accurately 5 reflect the results of your inspection of the vehicle 6 stated here? 7 A. Yes, it does. 8 Q. And does the report note any violations 9 found in the course of your inspection? 10 A. Yes, sir. It states there's a driver 11 violation and two vehicle violations. 12 Q. Can you explain what the driver violation 13 is? 14 A. Driver violation is no record of duty 15 status or logbook when required to have one. 16 Q. Can you explain what prompted you to 17 enter this violation on the inspection report? 18 A. Yes, I can. When I stopped Mr. Yates, I 19 advised him I'd be doing a level 2 inspection, and at 20 the time of stop I always collect my documents that 21 I'm going to need, driver's license, bill of lading 22 registration, medical card and logbook. 23 Mr. Yates stated to me he couldn't find 24 the logbook. So I said -- I stood there for a second ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 9 1 and let him look for it. I said I would do the 2 inspection, and I did a walk-around, and I came up 3 and said: Any luck finding the logbook? He said, 4 no, he couldn't find it. He must have left it at the 5 truck stop where he showered. That is in my note 6 section. 7 Q. Did he offer you a logbook in the course 8 of your inspection? 9 A. I believe he came back probably 10, 10 approximately 10, 15 minutes after the initial stop 11 and said: I found my logbook. And through the 12 course of my duties, we don't honor that, just for 13 the simple fact that he could sit up there for 10 to 14 15 minutes and conceal an 11-hour violation 14-hour 15 violation, catch up his logbook up for seven days, 16 you know, not showing the previous seven days, which 17 are all out-of-service violations. 18 So for me to accept that, I was never 19 trained that way, and we just do not do it, and I 20 never have. That would just be giving him, you know 21 the right-of-way to conceal a violation to sit up 22 there and tell me he doesn't have one after I've 23 asked him a few times and then catch his logbook up 24 or change some of the driving, you know, show he had ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 10 1 sleeper berth time when he actually didn't so we 2 never honored that in the past and I wasn't trained 3 to honor that when he brings it back just for the 4 simple fact he can conceal a violation while he's 5 sitting up there. 6 Q. Thank you. Was that the only driver 7 violation noted on this inspection report? 8 A. Yes, sir. 9 MR. LINDGREN: The staff has no further 10 questions at this time. 11 THE ATTORNEY EXAMINER: Mr. Yates, do you 12 have any questions. 13 MR. YATES: Yes. 14 - - - 15 CROSS-EXAMINATION 16 By Mr. Yates: 17 Q. On the date in question when did you 18 start your shift for that day? 19 A. Probably 6:00 a.m., I would imagine. 20 Q. Okay. 21 A. My shift changed. 22 Q. And where do you normally come from, from 23 your home or from Bucyrus headquarters or -- 24 A. From my residence. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 11 1 Q. From your residence, which is -- well, is 2 it close to where on US 23 you pulled me over? 3 A. Is it close? No, it's not close. 4 Q. Okay. So on that particular day when you 5 started your workday, since it was fairly early in 6 the morning, did you go directly to US 23 south of 7 the rest area, or were you patrolling? Tell me why 8 you were sitting in the middle south of the rest area 9 on that day. 10 A. Because that's what my occupation is, to 11 observe commercial vehicles from the highway and stop 12 them, be it a random inspection or obvious 13 violations. 14 Q. Is it normally -- do you normally patrol 15 in that small area of US 23? 16 A. Yes, sir. 17 Q. So you on a daily basis, you sit either 18 on the north side or the south side of the rest area 19 on US 23. 20 A. No, not on a daily basis. 21 Q. Not on a daily basis? 22 A. No. 23 Q. Okay. On the day you pulled me over, can 24 you recall if it was light, dark? Was it still dark ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 12 1 or light? What prompted you to pull me over on this 2 particular day? 3 A. I stopped you on this date because you 4 had an obvious violation. I believe the report 5 states an obvious violation would have been your 6 lighting defects. 7 Q. So I had a couple lights out? 8 A. (Witness nods head.) 9 Q. Okay. As you stated earlier when you 10 approached, asked for all my documents, I gave you 11 everything except for my logbook. Do you recall any 12 other conversation at that point of where I had taken 13 my break or where I was going? 14 A. I don't believe I asked you if you did 15 take your break. 16 Q. So you don't recall stating that I had 17 going up to the Marion rail yard, which was a mile 18 and a half up the road? 19 A. Sir, verbal communication about a logbook 20 doesn't pertain to what we do. You have to show us. 21 Q. That's not the question I asked. I 22 asked do you recall any conversation pertaining to 23 the reason why I didn't have the logbook at that 24 specific moment when you asked it of me. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 13 1 A. If I asked you if you didn't have your 2 logbook, I think your answer is on the inspection 3 report under the note section. You said you must 4 have left it at the truck stop when you showered. 5 Q. Okay. You did your walk-around like you 6 stated, and you came back and you stated do I have it 7 yet. And I said: No, I haven't found it yet. And 8 then you proceeded to your vehicle to do up the 9 citation, correct? 10 A. That's not a citation. It's an 11 examination report, but, yes, at that point when I 12 asked you probably the third time. 13 Q. Okay. As you stated, in your experience 14 or the way you perform your duties, you assumed that 15 because I didn't have it, you had stated you don't -- 16 when you reapproached the car or my truck and I said 17 I did have it, you said, you stated: No, I'm not 18 going to accept it at this time because, in your 19 words, I could have altered documents or okee-dok my 20 logbook, for lack of a better term, and in your 21 duties you don't ever accept, after you initially ask 22 the driver for his logbook, you don't ever accept, 23 "Hey, here it is. I misplaced it" after that point 24 in the ten years you have been a state trooper. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 14 1 A. I'm not the a state trooper, sir. 2 Q. DOT officer. 3 A. Can you repeat the question? What's the 4 question? 5 Q. In your ten years of being an -- 6 A. Inspector. 7 Q. -- inspector, you have never when you 8 reapproached the vehicle, you have never when the 9 driver said, "Oh, here's my logbook," you have never 10 accepted it because in your opinion the driver is up 11 there falsifying documents. 12 A. Sir, you have to be ready with your 13 logbook -- 14 Q. That's not my question I asked you. 15 A. Are you going to let me finish, or do you 16 want to argue with me? 17 THE ATTORNEY EXAMINER: Let him finish 18 the answer. 19 A. I am trying to answer the question if you 20 stop interrupting me. You asked me in the ten years 21 of my occupation do I accept it? No, I never have. 22 That's not how I'm trained. This inspection is 36 23 minutes long. At the end of that if it took you 36 24 minutes to find it, that is highly unusual for any ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 15 1 stop. 2 Q. So you -- 3 A. Can I finish? 4 Q. Go ahead. 5 A. It is highly unusual for any stop. I 6 have never had a stop where anybody wants to hand me 7 a log book, in ten years, in ten years' time at the 8 end of it say, "Here it is," and actually think we 9 would accept it. 10 Q. In the state of Ohio when you pull over a 11 person, is it acceptable as far as a safety issue -- 12 if you pull over a person, whether it is in a vehicle 13 or a tractor-trailer, and you were back at your 14 vehicle and then the person starts approaching you, 15 would you consider that a potential risk if you seen 16 the individual approaching your vehicle at that time? 17 A. What's the relevance to that question? 18 Q. My point being, in the years that I've 19 been driving truck and even in my vehicle, and I have 20 law enforcement -- 21 MR. LINDGREN: Objection. Mr. Yates is 22 testifying. 23 MR. YATES: Okay. 24 Q. Is it normally acceptable for an ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 16 1 individual that you have pulled over to approach your 2 vehicle not knowing if that person, what his intent 3 is as he's coming towards your vehicle? What would 4 your response be at that point? 5 A. I would get on my PA and advise him to 6 stay in his vehicle, is what I'd do. 7 Q. Okay. So when you had pulled me over, 8 you stated it was 36 minutes where you were back 9 there doing the inspection by the time you came back 10 up to the truck. So how could I have, knowing that 11 when you're pulled over by a state trooper, DOT 12 officer, you're not to get out of your truck to 13 approach his vehicle for any reason. Out of all the 14 states, it's not acceptable because of a safety issue 15 concerning the officer. They do not let people walk 16 back to their vehicle for whatever reason. Is that a 17 fair statement? 18 A. It's for your safety also, but I don't 19 understand the relevancy of what you're asking. 20 Q. Well, the question is, you said while you 21 were back there doing your document, that I could 22 have been up there falsifying documents, but at no 23 time after you initially left my truck, how was I 24 supposed to say, "Hey," you know, "here it is," and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 17 1 bring it back to you within a shorter time frame, 2 other than that 36 minutes? 3 A. Sir, when your occupation is driving a 4 truck, your second occupation should be running your 5 logbook. That's your hours. That's what you guys go 6 by. 7 Q. That's true. 8 A. You should have that at the ready. It 9 should be somewhere where you can reach at hand's 10 length and hand it to the officer and say: "Here. I 11 might be a little bit behind." I would look at it, 12 and if you are not too far behind, being yesterday, 13 if it is today I would hand it back and say: "Catch 14 up; bring it back." That's the way we operate. 15 Q. In your statement you didn't say that -- 16 A. I didn't ask that. It's not my 17 responsibility to ask it. You didn't provide a 18 logbook for me to look at, period. 19 Q. At that specific moment when you came up 20 to the truck. 21 A. When I asked for it. 22 Q. Correct. 23 A. More than once. 24 Q. So from that point on, okay, after I had ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 18 1 found my logbook, there was no opportunity to say, 2 "here it is" from that point on. There was no 3 opportunity to present that logbook to you. It could 4 have been eight minutes after the fact or -- 5 A. Where did you find your logbook at 6 anyway, sir? 7 Q. I'm asking you the questions. 8 A. I'm answering, but where did you find 9 your logbook? 10 Q. I'll do that when I do my statement. But 11 from the time you pulled me over to that 36 minutes, 12 it could be eight minutes after the fact that I found 13 my logbook, so when you came back to my vehicle, 14 there was no time within that time frame did I have 15 the opportunity to give you my logbook. 16 A. Let me reiterate, it wasn't clear on your 17 first question when you asked me, I thought you were 18 asking at the initial stop when somebody stops you, 19 do you get out and walk. That's what I thought you 20 were asking me, when I first stopped you. And I 21 thought you asked me should I get out and walk to 22 him, I would say no. I'd get on my PA and advise him 23 to stay until I come up and ask for the documents you 24 need after that. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 19 1 Q. That's not what I asked. 2 A. I didn't understand your question. 3 Q. You talked for five minutes after the 4 point I asked you the question. My question was, 5 after you left my truck with the documents that you 6 had -- 7 A. Did I advise you to stay in your truck 8 and not get out? 9 Q. No. That's not what I asked you. After 10 I left -- after you left the side of my truck, there 11 was no other time that I could have presented you 12 with that logbook until you came back to my truck. 13 A. Sure there was. Sure there was. 14 Q. And when would that have been? 15 A. The whole half hour, 35 minutes. 16 Q. Okay. And my question was as far as 17 safety concerns -- 18 A. You were in a rest area, sir. You 19 weren't along the side of the road. 20 Q. I'm not saying my safety. I'm talking 21 about the safety of the officer, which happens to be 22 you. 23 A. No. 24 Q. No time -- if I had gotten out of my ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 20 1 truck, which you stated you're trained, you know, 2 that's how you do it. You just assume the driver is 3 up there falsifying. I've been trained and told by 4 numerous state law enforcement once you're pulled 5 over, you don't get out of your truck to approach the 6 officer. 7 A. At the beginning of the stop I agree with 8 you. 9 Q. At any time of the stop. So from the 10 time you left my truck, I was to stay in my truck and 11 not come out. 12 A. Were you advised by me to stay in your 13 truck? 14 Q. I can't remember. It was 15 months ago 15 but normally the driver does not get out of the truck 16 unless he's told by the officer: Hey, I want you to 17 look at this back here. 18 A. I never advised you to stay in your 19 vehicle at all. 20 Q. But for a safety issue -- 21 MR. LINDGREN: Objection, it's been asked 22 and answered. 23 THE ATTORNEY EXAMINER: I believe we have 24 proceeded on this point long enough. Go on to the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 21 1 next question. 2 Q. When we initially talked, you don't 3 remember me stating I took a break in London or in -- 4 A. Not offhand, no. Like I stated earlier, 5 verbally you're telling me you had a break doesn't 6 make any difference. That's why they make you fill 7 out the logbook. 8 Q. Do you remember any other particulars of 9 the day, what kind of trailer I had or anything? 10 A. I think I'll -- 11 Q. Just what's stated on the sheet there, 12 that's all that you recall. 13 A. Pretty much, yeah. 14 Q. So when you were asked by I, believe -- 15 I'm not quite sure. I don't know if you had talked 16 to the officer in the last previous hearing to this 17 or who talked to him previous on the hearing before 18 this one when it was over the phone. 19 THE ATTORNEY EXAMINER: You're talking 20 about the prehearing conference? 21 THE WITNESS: Yes. Would that have been 22 you that talked to the officer? Somebody stated they 23 would contact the officer and get his side of the 24 story, for lack of a better term. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 22 1 THE ATTORNEY EXAMINER: No, it would not 2 have been me. 3 THE WITNESS: Okay. 4 Q. Do you recall when you were contacted by 5 the Commission at the previous hearing to this that 6 you had stated to them that at no time did I ever 7 present my logbook to you? 8 A. I don't recall being asked by the 9 Commission before today. I might have been asked by 10 my supervisor. 11 Q. So no one from the Utilities Commission 12 ever talked to you. 13 A. The way we work, we go through chain of 14 command, so if they called my supervisor, my 15 supervisor asks me about the inspection. I'll pull 16 it up on my computer and ask me about it, and what I 17 can remember of the inspection, I'll advise him, and 18 that's why we have a note section, because when we 19 actually get to these hearings, it's been about a 20 little over a year so it's kind of hard to remember. 21 I see a lot of faces and stop a lot of trucks. 22 Q. That's correct. You say you stopped a 23 lot of trucks. Do you remember how many times you 24 stopped me and did a DOT inspection? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 23 1 A. No, I do not. 2 Q. You just remember what is on your sheet 3 there. 4 A. That's why we have a note section, yes. 5 Q. Okay. So after all this time has passed, 6 you're just going by what you normally do in your ten 7 years of saying you never accept a logbook from that 8 point, and you can't sit here and honestly say did I 9 say: Here's my logbook. I found it in my -- 10 wherever in the truck, and here it is. You don't 11 recall any of the pertains to why I couldn't find it 12 at the particular time that you came to my truck. 13 A. I don't believe it's a reason of why you 14 couldn't find. I believe it's you didn't have it 15 when I asked for it three times. 16 Q. But once I did find it, okay, then you 17 just assumed that I was falsifying documents while I 18 was sitting up there waiting for you to come back to 19 my truck. 20 A. Like I said before, the assumptions are 21 not relevant. It's not an assumption that I'm 22 assuming that you are -- 23 Q. Wait a minute. You stated that earlier 24 in your testimony, that -- ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 24 1 A. What did I state? Can you recite what I 2 stated? Because I don't remember. 3 Q. In your years of experience you don't 4 accept a logbook after that because in your 5 experience it gives the time, the driver time, to 6 falsify his logbooks. 7 A. That's correct. 8 Q. So it could be safely said that's just 9 what you assume they're doing up there. 10 A. Like I stated before, if I ask for it, 11 you have to be at the ready and willing to show it to 12 me. If you don't want to show it to us or you can't 13 find it -- 14 Q. There's no leeway, no nothing in that out 15 of all the DOT officers in state of Ohio -- 16 A. After a half hour. 17 Q. Well, no now. But you're saying after a 18 half hour? 19 A. That's how long this inspection was 20 approximately. 21 Q. That's true. But you can't say when I 22 found my logbook in my truck, whether it was eight 23 minutes, six minutes, or 20 when you came back to the 24 truck. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 25 1 A. Do you have a question? 2 Q. That's what I'm asking. 3 THE ATTORNEY EXAMINER: You have to state 4 it in the form of the question. 5 THE WITNESS: Okay. 6 Q. So you can't say when I actually found 7 it. You're just assuming that because the inspection 8 took 36 minutes, that that's when I had my logbook 9 ready to give to you, was 36 minutes later. 10 A. Again, sir, when you're asked by an 11 officer for the logbook to show your hours of 12 service, you have to present it at the time. You 13 can't wait after I've asked for it three times and 14 when I go back to my car, you could be concealing 15 three days you haven't filled out, and that's an 16 out-of-service violation for us. 17 Q. Wait a minute. 18 THE ATTORNEY EXAMINER: Let me interrupt. 19 You have to state in the form of the question. You 20 can't make a statement and testify to it on the 21 record. You have to ask him a question. Let's go 22 back. Proceed. 23 Q. But was I falsifying my logbook during 24 the time frame that you were back at your vehicle ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 26 1 writing the citation up? 2 A. How would I know that? I would have no 3 idea. 4 Q. You don't know if I was legal or illegal 5 or what. All you know is I didn't give you the 6 logbook. 7 THE ATTORNEY EXAMINER: You want to make 8 that a question? 9 Q. You did not know if I was legal or 10 illegal. 11 A. Sir, when you hand me your documents to 12 review, you're right. 13 Q. You assume I'm illegal? 14 A. I don't assume anything. It's just you 15 didn't give me a logbook when I asked for it. I go 16 by fact not assumption. 17 Q. At the point when I give you my logbook, 18 how many hours had I been driving that day? 19 A. Again, when I have nothing to review, I 20 can't tell you the answer. 21 Q. How many hours had I been driving in the 22 week? 23 A. Like I said, if I have nothing to look 24 at, I can't tell you. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 27 1 Q. It's safe to say you don't know how many 2 hours I had been driving. 3 A. That's the whole point, you could have 80 4 hours in a week's time. How do I know? 5 Q. Okay. What is the state of Ohio rule? 6 A. It's a federal regulation. 7 Q. Federal regulation. If a driver is 8 pulled over, what determines the amount of time he's 9 put out of service? 10 A. Well, there's a couple things. You could 11 be in violation of the 14-hour rule, which means you 12 have been on duty at the time of the stop, you were 13 driving after your 14th hour on duty from when you 14 had the last ten hours off and on duty for more than 15 14 hours, or you could have been on after the last 16 ten hours driving more than 11 hours or at the time 17 of the stop and you could not show me your previous 18 seven days or you don't show me anything, no logbook. 19 Q. What determines how long a driver is put 20 out of service for? 21 A. Well, if you have -- there's a two/eight 22 split. If you were using sleeper berth time and you 23 were over the 11-hour rule, I would only put you out 24 of service for eight hours, if you actually had a ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 28 1 truck that had a sleeper berth. And you can combine 2 two and eight for the ten-hour break. Or if you have 3 nothing to show me, it would be a ten-hour 4 out-of-service If you didn't have the previous seven 5 days, it would be the ten-hour out-of-service 6 violation. 7 Q. So the most you can put a driver out of 8 service is for ten hours. 9 A. Well, it all depends. If you're over the 10 70-hour rule, it could be a couple days with a 11 34-hour new restart. You don't find those often. 12 Q. At the time that you pulled me over and I 13 didn't have my logbook to present to you, why didn't 14 you put me out of service for 34 hours since I had no 15 proof of any driving? 16 A. Because we have an out-of-service 17 criteria that advises us under what section that you 18 put somebody out of service for, and then the 19 out-of-service criteria, per out-of-service criteria 20 is ten hours. 21 Q. So I could have been illegal at the point 22 after I took my ten-hour break. 23 A. Do you have a question for me? 24 Q. That's what I'm saying, I could have ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 29 1 still been over my hours of service after I took my 2 ten-hour break. 3 THE ATTORNEY EXAMINER: Again, you have 4 to ask a question. 5 THE WITNESS: I asked a question. 6 Q. After the ten-hour break, I could have 7 still been out of hours to run since you didn't know 8 what I'd been running previously. 9 A. Sir, I don't write the out-of-service 10 criteria. That's what we get to go by. You can make 11 statements how many hours you have worked or 12 whatever, per the federal government that's how we do 13 it. 14 Q. My question, you told me what put you out 15 of service for ten hours. What would put you out of 16 service for 34 hours, and you said that -- 17 A. There's a 34 hour restart. You have this 18 34 hour restart. It starts -- 19 Q. That's not I'm asking. I'm asking what 20 would determine a driver to be put out of service for 21 at least 34 hours? 22 MR. LINDGREN: I object to the relevancy 23 of this question. 24 THE ATTORNEY EXAMINER: What is the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 30 1 relevance? 2 MR. YATES: Your Honor, my whole 3 contention is that the officer stated here today and 4 to whomever I talked to previous to at the previous 5 meeting on the telephone that at no time did I 6 present my logbook to him. My question on the 7 34 hour, why didn't he put me out of service for 8 34 hours if I didn't have a logbook at all? He had 9 no idea how long I'd been driving for if indeed I 10 didn't have my logbook there to show him, hey, this 11 is what I'd done. So for him to only put me out of 12 service for ten hours, this officer had no idea how 13 long I'd been driving for, and since it was 6:30 in 14 the morning, or around that time frame, even if I had 15 taken the ten-hour out-of-service break, I wouldn't 16 have gained any hours back until that midnight, so if 17 I was out of hours in my logbook, I'm just trying to 18 say, why didn't he put me out of service for 19 34 hours? 20 THE WITNESS: I answered that question. 21 THE ATTORNEY EXAMINER: That doesn't 22 relate to why you didn't give him the logbook in the 23 first place. 24 MR. YATES: But my reason for my question ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 31 1 is in the statement to the people before, you guys 2 over the phone, he said that I never gave him my 3 logbook, never presented my logbook to him. That's 4 why the previous committee or whatever said, no, he 5 said I never presented my logbook to him, at no time. 6 That's why we're here today. 7 THE ATTORNEY EXAMINER: Ask him that 8 question instead of proceeding off on why he didn't 9 put it out of service for a certain amount of time. 10 It doesn't relate to you not giving him a logbook. 11 Ask him if he said that, and go ahead and frame the 12 question that way. 13 MR. YATES: As far as why he put me out 14 of service for just the ten hours? 15 THE ATTORNEY EXAMINER: No. On the 16 logbook, why you didn't come up with the logbook when 17 he asked for that. That's a simple question. Let's 18 go back and ask him that question. 19 Q. (By Mr. Yates) So when I did say: Here's 20 my logbook, do you remember your statement at that 21 time? 22 A. Do I remember my statement? Not word for 23 word, but I can assure you I probably said I don't 24 want to look at it now because you've had it for a ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 32 1 half hour. Who knows what you could put in there. 2 We just never, we don't accept it. 3 Q. Never, in your ten years you never have. 4 A. When I ask for a logbook more than twice, 5 which I did, and you can't find it, and then you said 6 you left it in the showers at the truck stop, and 7 then all of the sudden it appears, no, we don't do 8 it, never, not in ten years. 9 Q. No trooper ever does that? 10 A. I don't know what troopers do, sir. 11 Q. Well, DOT inspectors. 12 A. In our district we never have. I wasn't 13 trained that way. My supervisor would advise us not 14 to do it, not in my district. 15 THE ATTORNEY EXAMINER: Okay. We have an 16 answer to that question. Let's proceed to another 17 point. 18 Q. Like I asked you earlier, you don't 19 recall how many times you have given me a DOT 20 inspection? 21 A. No, I do not. 22 Q. So if you had given me another DOT 23 inspection, you would have naturally asked for all 24 the documents. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 33 1 A. I have a routine, yes. 2 Q. Pertaining to an inspection. 3 A. Uh-huh. 4 Q. But my question is how after 15 months 5 from this citation, when you were either asked by 6 your superior or, as you said, you were asked by your 7 superior, that you could so vividly recall this day 8 in question, no, he never presented this logbook to 9 you. You're just going boy your notes in the ticket. 10 A. Well, sir, like I said, I would have to 11 pull this up and look at it. Do I remember word for 12 wood or step by step? No, I do not. That's why we 13 have a note section, for that simple fact. 14 MR. YATES: I'm finished. 15 THE ATTORNEY EXAMINER: Any redirect? 16 MR. LINDGREN: Thank you. 17 - - - 18 REDIRECT EXAMINATION 19 By Mr. Lindgren: 20 Q. Mr. Holzworth, after you had initially 21 approached the vehicle and Mr. Yates was not able to 22 produce a logbook initially, you give him a second 23 opportunity to produce that logbook. 24 A. I gave Mr. Yates three opportunities. I ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 34 1 asked him three times, and he advised me he couldn't 2 find it. I'm still looking for it, can't find it, 3 and then at the end he must have left it in the truck 4 stop where he showered. That's was what he stated to 5 me. 6 MR. LINDGREN: Thank you. No further 7 questions. 8 THE ATTORNEY EXAMINER: Okay. I'll give 9 you a chance on recross. 10 MR. YATES: Yes. 11 - - - 12 RECROSS-EXAMINATION 13 By Mr. Yates: 14 Q. You stated you asked me three times. You 15 initially came to the truck and asked for the 16 documentation, correct? 17 A. I asked for your logbook at the 18 initiation of the stop. 19 Q. Okay. Then you came back shortly 20 thereafter and said, "Did you find it?" Correct? 21 A. I think I asked you at least three or 22 four times. You got a logbook? You can't find. 23 Q. You stated it was three times, so it was 24 three separate instances or was it -- ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 35 1 A. Three times would be three separate 2 instances. 3 Q. You initially came to the truck and asked 4 for the logbook. Then you came back shortly 5 thereafter. 6 A. And did the walk-around. 7 Q. Then you went to the patrol car to do the 8 citation. 9 A. No. When I came back around, I remember 10 you somewhat thumbing through your truck looking for 11 something, looking for whatever it was you were 12 looking for. Obviously you couldn't find anything. 13 I know I asked you twice after I did my walk-around: 14 You can't find it? Are you sure you can't find it? 15 I always ask three times, always. 16 Q. But I was looking for -- as you say, I 17 was looking for it in the truck. Then you went back 18 to your patrol car. 19 A. Uh-huh. 20 Q. And did the citation. 21 A. I filled out my report, yes. 22 Q. Okay. So there's two of the times. So 23 the third time? 24 A. The third time was after I have did my ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 36 1 walk-around. I asked once when I initially stopped. 2 I did my walk-around. "Did you find anything yet?" 3 "No." 4 "Are you sure you can't find nothing at 5 all?" I always ask three times. 6 Q. That's the second time. 7 THE ATTORNEY EXAMINER: Okay. We had the 8 answer to the question, he asked three times. 9 MR. YATES: I'm trying to pinpoint was 10 the second and third time when he first came back to 11 the truck. I'm confused of when the third time was, 12 your Honor. 13 THE ATTORNEY EXAMINER: He said three 14 times. We will take that as the answer. 15 Q. So after you did your walk-around to 16 check the truck even more, you said, "You got it?" I 17 said, "No," and then your statement -- 18 THE ATTORNEY EXAMINER: Let's now move 19 on. Do you have another question? 20 MR. YATES: No. It's just vague when the 21 actual three times was. 22 THE ATTORNEY EXAMINER: The answer was 23 three times. 24 No other questions. You're excused. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 37 1 Do you have another witness? 2 MR. LINDGREN: Yes, your Honor. 3 Ms. Parrot will call the next witness. 4 MS. PARROT: Your Honor, staff calls as 5 the next witness Mr. John Canty. 6 - - - 7 JOHN CANTY 8 being first duly sworn, as prescribed by law, was 9 examined and testified as follows: 10 DIRECT EXAMINATION 11 By Ms. Parrot: 12 Q. Good morning, Mr. Canty. Would you 13 please state your name for the record. 14 A. John J. Canty, C-A-N-T-Y. 15 Q. And your business address, please? 16 A. My address is 180 East Broad Street, 17 Columbus, Ohio 43215. 18 Q. Public Utilities Commission, is that your 19 employer? 20 A. Yes, it is. 21 Q. And in what capacity are you employed 22 with the Public Utilities Commission? 23 A. I am the assistant chief of the 24 Compliance Division. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 38 1 Q. What are your duties and responsibilities 2 as the assistant chief of the Compliance Division? 3 A. I am responsible for overseeing the 4 employees who review the inspection reports that we 5 receive, and we assess forfeitures for the violations 6 that are found. They send those notices out to the 7 responsible party. If they request a conference, we 8 conduct a conference, usually a telephone conference, 9 with that person. 10 Q. Do you hold any certifications, or have 11 you received any special training to perform your 12 job? 13 A. Over the two years I have received North 14 American Standard, HazMat, cargo tank, radioactive 15 training, various courses we have taken -- that I've 16 taken over the years, yes. 17 Q. And how long have you worked for the 18 Public Utilities Commission? 19 A. Nineteen years. 20 Q. And how many of those 19 years have you 21 been in your current position? 22 A. About 15 or 16. 23 Q. Thank you. In the course of your duties 24 as assistant chief of the Compliance Division, have ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 39 1 you ever had the opportunity to review the staff's 2 file for this case? 3 A. Yes, I have. 4 MR. LINDGREN: May I approach the 5 witness, your Honor? 6 MR. YATES: You may. 7 (EXHIBIT MARKED FOR IDENTIFICATION.) 8 Q. Mr. Canty, I hand you what has been 9 marked as Staff Exhibit 1. Can you identify? 10 A. Yes. This is the Driver/Vehicle 11 Examination Report for inspection No. 0H3291004567. 12 Q. Is this document part of the file you 13 reviewed for this case? 14 A. Yes, it is. 15 Q. And is this document regularly maintained 16 by the Commission staff in the ordinary course of 17 business? 18 A. Yes. 19 Q. Would you please tell us how that report 20 reaches the Public Utilities Commission? 21 A. After an inspector conducts an 22 investigation, the data is contained in his laptop 23 computer on a program, I believe it's callid Aspen is 24 the program that they use. The data is then uploaded ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 40 1 electronically over the telephone line to our 2 computer here at the PUCO, and then we can review 3 that information here. 4 Q. And then what happens at that point? 5 A. At that point any inspection that has an 6 out-of-service violation will receive an 7 automatically assessed penalty according to our fine 8 schedule, and then that letter will be printed and 9 mailed out to the respondent. 10 Q. And what violations were noted in this 11 particular case? 12 A. There are three violations, one against 13 the driver and two against the carrier. Would you 14 like me to -- the one against the driver is no record 15 of duty status when required. Then there's carrier 16 violations, inoperable ID lights on rear, center and 17 right of trailer, and inoperable license plate light 18 on trailer. 19 Q. Did any of these violations result in 20 assessments by your staff of a civil forfeiture? 21 A. Yes. The first one against the driver 22 did. 23 Q. Would you please tell us why a forfeiture 24 is assessed for some violations and not for others? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 41 1 A. Most violations, not all, but most have 2 to be considered out of service by the CVSA standard. 3 There's actually four categories for groups of 4 violations, and I believe the fourth category 5 contains some violations that are not out of service 6 that we do assess. The first three categories, all 7 of those must be out-of-service violations. This is 8 a driver record of duty status violation against the 9 driver that is in category 1. That's a $100 fine, 10 and that's what we assessed in this case. 11 MR. LINDGREN: May I approach, your 12 Honor? 13 THE ATTORNEY EXAMINER: You may. 14 (EXHIBIT MARKED FOR IDENTIFICATION.) 15 Q. Mr. Canty, I have given you what has been 16 marked for identification purposes as Staff 17 Exhibit 2. Do you recognize the document? 18 A. Yes. 19 Q. Would you please identify it for us? 20 A. Yes. This is the document I was 21 referring to, the fine schedule for out-of-service 22 violations. It has group 1, group 2, group 3 and 23 group 4 violations. Under group 1 violation it lists 24 several, many violations. One of them is the record ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 42 1 of duty status. That is a $100 fine, and that is the 2 forfeiture we assessed in this case. 3 Q. And you're looking on the first page of 4 Staff Exhibit 2 at the group 1 section of violations; 5 is that correct? 6 A. Yes, that's correct. 7 Q. Based on that, because the record of duty 8 status -- the violation of not having a record of 9 duty status falls within group one; is that correct? 10 A. That is correct. 11 Q. And based on that, you determine the 12 amount of forfeiture assessed should be $100? 13 A. Yes. 14 Q. Is this document regularly maintained by 15 the Commission staff in the ordinary course of its 16 business? 17 A. Yes. 18 Q. Was this fine schedule in effect at the 19 time of the inspection in this case? 20 A. Yes, it was. 21 Q. Is the procedure you just described for 22 us, is that consistent with the recommended civil 23 penalty procedure adopted by the Commercial Vehicle 24 Safety Alliance? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 43 1 A. Yes, it is. 2 Q. And is the dollar amount, the $100, is 3 that consistent with the recommended fine adopted by 4 the Commercial Vehicle Safety Alliance? 5 A. Yes, it is. 6 Q. And is this fine schedule used 7 consistently by you and your staff for all carriers 8 and drivers? 9 A. Yes. This is the same fine schedule 10 that's used for every inspection, thousands that come 11 through this system every year. 12 Q. In your opinion was the civil forfeiture 13 assessed correctly based on your standard practices 14 and procedures? 15 A. Yes. 16 Q. And in your opinion is the civil 17 forfeiture assessed properly determined and 18 reasonable? 19 A. Yes. 20 Q. Thank you. 21 MS. PARROT: May I approach, your Honor? 22 THE ATTORNEY EXAMINER: You may. 23 (EXHIBIT MARKED FOR IDENTIFICATION.) 24 Q. Would you please identify this document? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 44 1 A. Yes. This was what I was referring to 2 earlier when I said we notify the responsible party 3 of the violations. This what is called the Notice of 4 Apparent Violation and Intent to Assess Forfeiture 5 letter. It's dated May 28, 2007 addressed to Bobby 6 Yates regarding the same inspection number, which I 7 read before. It is a notice that is normally sent to 8 the person responsible for the violation. On the 9 this letter it notes no record of duty status when 10 required. The violation code is 395.8A and the 11 amount of the forfeiture is $100. 12 Q. Is this notice regularly maintained by 13 the Commission staff in the ordinary course of its 14 business? 15 A. Yes. 16 MS. PARROT: May I approach again, your 17 Honor? 18 THE ATTORNEY EXAMINER: You may. 19 (EXHIBIT MARKED FOR IDENTIFICATION.) 20 Q. I have given you what has been marked for 21 identification purposes as Staff Exhibit 4. Do you 22 recognize this document? 23 A. Yes. 24 Q. Would you please identify it for me? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 45 1 A. Yes. This is what we refer to as the 2 Notice of Preliminary Determination. This is the 3 letter dated February 25, 2008 addressed to Mr. Bobby 4 Yates regarding the same case. This is the letter 5 that is always sent following the conference that is 6 conducted with the person responsible in this case, 7 Mr. Yates. It advises him that the initial amount of 8 the fine, the forfeiture was $100, and as a result of 9 the conference the staff has made a preliminary 10 determination the Commission should maintain that 11 fine at $100. 12 Q. Is this the notice regularly maintained 13 by the Commission staff in the ordinary course of 14 business? 15 A. Yes, it is. 16 Q. Mr. Canty, based on your review of the 17 file of this case, was Mr. Yates served with all 18 notices required under Ohio law? 19 A. Yes. 20 MS. PARROT: Thank you. I have no 21 further questions for the witness, your Honor. 22 THE ATTORNEY EXAMINER: Do you have any 23 questions? 24 MR. YATES: Just a couple, your Honor. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 46 1 - - - 2 CROSS-EXAMINATION 3 By Mr. Yates: 4 Q. Is there any time frame once you receive 5 a ticket in Ohio that it's to be processed? 6 A. We have to notify you of the forfeiture 7 amount within 90 days of the inspection. 8 Q. Okay. And then after the initial I guess 9 conference when you talked to the first lady, is 10 there a time frame, is there a specified limit, time 11 frame of when that happens to progress further? 12 A. No. 13 Q. It's just indefinite. 14 A. There is no specified time period, no. 15 Q. No specified time period of time, okay. 16 On Exhibit 2 under group 1 it just says record of 17 duty violation. Where is it maintained that it 18 states when a driver is to present his logbook? Is 19 that in DOT or -- 20 A. That's US. 21 Q. -- federal? 22 A. That's Federal Motor Carrier Safety 23 regulations. I believe that would be in section 395. 24 Q. Are you familiar with what it states as ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 47 1 far as presenting a logbook? 2 A. Off the top of my head I couldn't recite 3 it, no. 4 Q. So I'm just curious. So it's not to say 5 when you were asked by the officer you have to 6 present it right there or you can't do it? 7 MR. LINDGREN: Objection, your Honor. 8 Mr. Canty is testifying solely based on assessment of 9 the forfeiture. He's not working in the field. He 10 does not actually cite drivers or carriers under the 11 regulations. 12 THE ATTORNEY EXAMINER: Yes, I agree, he 13 said he doesn't know what it says. 14 MR. YATES: Okay. 15 Q. It's pretty much up to the officer what 16 he writes on the ticket. As to how you assess 17 forfeitures when you get it to your office, when you 18 get any out of service or anything like that, then he 19 looks at it and say, "Okay, here's the fine," and 20 notify the person that was put out of service. 21 A. That's correct. 22 MR. YATES: Thanks. That's all I have. 23 THE ATTORNEY EXAMINER: Any redirect? 24 MS. PARROT: Nothing further for this ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 48 1 witness. 2 THE ATTORNEY EXAMINER: You're excused. 3 All right. Do you have any more witnesses? 4 MR. LINDGREN: Your Honor, the staff 5 rests its case. We would like to move the admission 6 of the staff exhibits. 7 THE ATTORNEY EXAMINER: I'll admit those 8 into evidence at this time. 9 (EXHIBITS ADMITTED INTO EVIDENCE.) 10 THE ATTORNEY EXAMINER: Mr. Yates. 11 MR. YATES: Yes, thank you. 12 - - - 13 BOBBY YATES 14 being first duly sworn, as prescribed by law, was 15 examined and testified as follows: 16 DIRECT TESTIMONY 17 - - - 18 THE ATTORNEY EXAMINER: Okay. Go ahead 19 and present your testimony in a narrative style. 20 MR. YATES: On the day in question when I 21 was pulled over by the inspector, he asked me for all 22 the documents, and at that time I gave him the 23 registration and all that, and I said I couldn't find 24 my logbook because I had just taken a break. I had ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 49 1 took a break in London, Ohio, and that I was going to 2 Marion, and, as he stated, I was fumbling through the 3 truck, in his words, looking for my logbook, Normally 4 I keep my logbook right above my head in the reach of 5 when I'm sitting in my truck, and it wasn't there. 6 So he was doing his inspection and 7 everything, and I was looking around my truck for it 8 because normally that's where it stays. That's where 9 it's always at, along with my permit book and 10 everything else. 11 Like I said, I took my break in London 12 and I remembered that my supervisor needed some 13 trailer numbers from me, so I took my logbook into 14 the truck stop to give him that information, and I 15 threw it in my duffle bag, which normally I don't do. 16 That's why when the inspector asked for it and I 17 looked up there, I wasn't quite sure where it was at 18 because that's not something I normally do. 19 So I found it, and when he reapproached 20 the truck, I told him: Here's my logbook. It was in 21 my duffle bag that I took into the truck, stopped to 22 give the information to my supervisor, at which time 23 he was, you know, quite -- I won't get too 24 discredit -- rude. He said: No, I don't want to see ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 50 1 it. You had your chance. 2 I said: Look, I just took my break in 3 London. Here it is. I'm going one exit up. That's 4 where I'm headed to. 5 And he didn't want no part of it. And he 6 goes: I'm putting you out of service. And, you 7 know, I didn't want to get into an arguing match with 8 him that: Here's my logbook. You didn't even look 9 at it. If you looked at it, you would see that I 10 just come off my ten-hour break. I've only been 11 driving for an hour and a half for today. 12 And he just didn't want no part of that. 13 And at that time I told him that, you know, that 14 isn't very professional to not even give me the 15 opportunity, but now I can see since I've heard his 16 testimony that he assumed I was up there falsifying 17 documents. That's what he thinks of truck drivers, 18 that we're up there falsifying documents when we 19 can't present the documents to him, which I'm not 20 saying that all truck drivers are. You know, there 21 are some out there that are like that that run 22 illegal. 23 But I run a 250 radius north of Marion, 24 Ohio. I have been stopped by the inspector twice for ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 51 1 DOT inspections. The second time I was stopped I was 2 bobtailing. He stopped me because they set on the 3 north side and south side of the rest area on US 23, 4 and when a truck goes by and a light out, they 5 automatically get pulled over into the rest area and 6 do a DOT inspection, which the second time: Here's 7 all my information. He wrote me a ticket for having 8 a light out. 9 So, like I said, I didn't want to argue 10 with him right then and there. "Here's my logbook." 11 He's the law enforcement officer, and at that point I 12 didn't have any recourse, you know, and that's been 13 my whole contention with this, is that I did have my 14 logbook at the time. You know, I didn't have it 15 right then and there when he asked me for it because 16 of an unusual circumstance that I took it into the 17 truck stop to give information to my supervisor that 18 he needed. 19 But then when I did find it, I sit there 20 because, like I said, you know, I was asking the 21 inspector earlier, I've been told by every law 22 enforcement officer that I've ever been stopped by, 23 whether it be in my vehicle or truck, that you do not 24 get out of your vehicle when you are stopped by a law ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 52 1 enforcement officer. 2 It's just safety for them. They don't 3 know what you're coming towards them for at that 4 point, so you just stay in your truck or vehicle no 5 matter what on the fear of getting shot because of 6 the way it is out there now. You stay in your truck. 7 You sit there and wait until the officer reapproaches 8 your vehicle and then you talk to him about it, so 9 that's what I did. And, you know, it's not like, if 10 I may, your Honor gets pulled over and the officer 11 says: "Where is your license at?" 12 You reach for your billfold, and "I don't 13 have it with me." He goes back to his car, writes up 14 a ticket, and meanwhile your wife is looking in her 15 purse: "Oh, honey, here's your wallet. You gave it 16 to me when you were at the hardware store." 17 When the officer comes back, "Here's my 18 wallet, officer. My wife had it." 19 "Nope, I don't want to see it. You're 20 getting a ticket." 21 That's the same scenario what happened to 22 me, is what could have happened in the second 23 scenario, but I can see now the officer thinks we're 24 up there falsifying documents, and he doesn't have ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 53 1 any view of the truck drivers. If they don't have 2 it, then they're falsifying their documents, they're 3 all running illegal, which that's not the case. 4 You know, over the eight years I've been 5 driving, I've never had an accident, nothing. I have 6 well over a million miles of safe driving, and I just 7 don't think it was fair that he did not, once I said 8 "Oh, here's my logbook," you know, that he did not 9 say: Okay, you know, let me look at it." Like the 10 inspector stated, you know, yes, they will if you're 11 not right up to date, you know, current, you say, "I 12 made a stop previously, and oh, I didn't log it". 13 "Okay, here, log it. Get it caught up to 14 date, wherever you're at. See you later. You got 15 two lights out." That could easily have been the 16 scenario in this case. If I was able to present my 17 logbook to him, you know, he would have seen I went 18 on duty that morning, did my pretrip, you know, from 19 London, Ohio, and that's where I was at right there. 20 So I just don't, you know, feel in this 21 case, you know, it was a fair decision, you know, by 22 the trooper. Like I said, I've had dealings with 23 lots of other troopers, and, you know, I've never 24 been in court with one of them to see what their ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 54 1 frame of mind is when they pull over a trucker, but 2 for the most part they're cordial individuals. Here 3 you are. Here's your whatever. See you later on the 4 road, where this case it's not. 5 Like I said, I had another DOT inspection 6 by this officer, and everything went fine. He wrote 7 me up for the brake light that was out on my tractor, 8 and I'm sure, you know, we'll run into each other 9 again because I run out of that yard all the time and 10 everything. I just don't think it was very fair in 11 this case. That's what I've told the previous 12 people. 13 THE ATTORNEY EXAMINER: Does that 14 conclude your testimony? 15 MR. YATES: That's all. 16 THE ATTORNEY EXAMINER: Do you have any 17 questions? 18 MR. LINDGREN: The staff has no 19 questions, your Honor. 20 THE ATTORNEY EXAMINER: Very well, you're 21 excused. 22 Let's go off the record. 23 (Discussion off record.) 24 THE ATTORNEY EXAMINER: We have discussed ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 55 1 a briefing schedule, and parties will file 2 simultaneous briefs on September 5. With that said, 3 I thank you all for coming and will consider the 4 matter submitted on the record. Thank you. 5 (The hearing concluded at 11:07 a.m.) 6 - - - 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 56 1 CERTIFICATE 2 I do hereby certify that the foregoing is a 3 true and correct transcript of the proceedings taken 4 by me in this matter on Wednesday, June 18, 2008, and 5 carefully compared with my original stenographic 6 notes. 7 _______________________________ Rosemary Foster Anderson, 8 Professional Reporter and Notary Public in and for 9 the State of Ohio. 10 My commission expires April 5, 2009. 11 (RFA-8159) 12 - - - 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481