1 PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of Timothy Michael: Notice of Apparent Violation : Case No. 4 and Intent to Assess Forfeiture : 16-1860-TR-CVF 5 6 - - - 7 8 PROCEEDINGS 9 Before Jim Lynn, Attorney Examiner, held at the 10 Public Utilities Commission of Ohio, 180 East 11 Broad Street, Hearing Room 11-D, Columbus, Ohio, 12 on Monday, May 15, 2017, at 1:00 P.M. 13 14 - - - 15 16 17 18 19 20 21 22 Armstrong & Okey, Inc. 222 East Town Street, 2nd Floor 23 Columbus, Ohio 43215 (614) 224-9481 - (800) 223-9481 24 - - - 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 2 1 APPEARANCES: 2 The Maher Law Firm, LLC By Mr. Colin Maher 3 1335 Dublin Road, Suite 214A Columbus, Ohio 43215 4 On behalf of the Respondent. 5 6 Mr. Werner L. Margard Assistant Attorney General 7 30 East Broad Street 16th Floor 8 Columbus, Ohio 43215 9 On behalf of the Staff of the Public Utilities Commission 10 of Ohio. 11 12 13 14 15 - - - 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 3 1 INDEX TO WITNESSES 2 - - - DIRECT CROSS 3 STATE'S WITNESSES 4 Trooper Brian Hann 6/33 15 5 Rodney Mosher 16 6 RESPONDENT'S WITNESSES 7 Timothn Michael 22 30 8 - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 4 1 INDEX TO EXHIBITS 2 - - - 3 STATE'S EXHIBITS IDENTIFIED 4 1 Driver/Vehicle Examination 8 Report 5 2 Notice of Preliminary 20 6 Determination 7 8 9 10 - - - 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 5 1 Monday Afternoon, 2 May 15, 2017. 3 - - - 4 ATTORNEY EXAMINER: Let's go on the 5 record at this time. 6 The Public Utilities Commission of 7 Ohio has assigned for hearing at this time and 8 place Case No. 16-1860-TR-CVF in the Matter of 9 Timothy Michael Notice of Apparent Violation and 10 Intent to Assess Forfeiture. 11 I am Jim Lynn, I am the Attorney 12 Examiner assigned to hear this case. And at 13 this point in time we will have the appearances 14 of the parties. And we will begin with the Ohio 15 Attorney General's office. 16 MR. MARGARD: Thank you, Your Honor. 17 On behalf of the transportation staff of the 18 Public Utilities Commission of Ohio, Mike 19 DeWine, Ohio Attorney General; William Wright, 20 Section Chief of the Public Utilities Section; 21 by Assistant Attorney General Werner L. Margard, 22 30 East Broad Street, 16th Floor, Columbus, 23 Ohio. 24 ATTORNEY EXAMINER: Thank you, Mr. 25 Margard. On behalf of Mr. Michael. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 6 1 MR. MAHER: Thank you, Your Honor. 2 Colin Maher, Supreme Court No. 0084567 on behalf 3 of Mr. Michael 4 ATTORNEY EXAMINER: And your 5 address, please. 6 MR. MAHER: 1335 Dublin Road, Suite 7 214 A, Columbus, Ohio 43215. 8 ATTORNEY EXAMINER: Thank you. We 9 will begin with the Attorney General's office 10 and Mr. Margard. 11 MR. MARGARD: Thank you, Your Honor. 12 I would call Trooper Brain Hann to the stand, 13 please 14 (WITNESS SWORN) 15 - - - 16 TROOPER BRIAN HANN 17 called as a witness, being first duly sworn, 18 testified as follows: 19 DIRECT EXAMINATION 20 By Mr. Margard: 21 Q. State your name and your business 22 address, please. 23 A. My name is Trooper Brian Hann. I 24 work out of the Milan Patrol Post. I am 25 assigned out of the Licensing Commercial ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 7 1 Standards out of Bucyrus. I don't know what 2 their address is. The Milan Post is P.O. Box 3 524, Mile Post 118 of the Ohio Turnpike. 4 Q. And by whom are you employed and in 5 what capacity? 6 A. State of Ohio. I am a State 7 Trooper. I am also certified in doing 8 commercial inspections, Level 1, 2 and 3. 9 Q. Do you hold any other 10 certifications? 11 A. I am a field training officer. I 12 have technical crash training. 13 Q. How long have you been a State 14 Trooper, please? 15 A. About 23 and a half years. 16 Q. And how long have you been certified 17 in motor carrier safety? 18 A. A little over two years now. 19 Q. Thank you. Were you on duty on May 20 26, 2016? 21 A. Yes. 22 Q. And do you recall what your job 23 duties, what your job assignment was on that 24 date? 25 A. As probably any other day I am ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 8 1 looking for violations of the Federal Motor 2 Carrier regulations or traffic violations, 3 performing inspections on commercial motor 4 vehicles, or if I see a flagrant vehicle or a 5 flagrant violation on a car or something like 6 high speed I also can make stops on those. 7 Q. In the course of your job that day 8 did you have an opportunity to inspect the 9 vehicle which was being operated by Mr. Michael? 10 A. Yes. 11 Q. And as a result of that stop did you 12 conduct an inspection? 13 A. Yes, I did. 14 Q. And as a result of that inspection 15 did you complete a report? 16 A. Yes. 17 MR. MARGARD: Your Honor, may I 18 approach? 19 ATTORNEY EXAMINER: Yes. 20 Q. Trooper, I have put in front of you 21 a document that has been marked for purposes of 22 identification as Staff Exhibit No. 1. Can you 23 identify that document for me, please? 24 A. This would be a copy of a driver's 25 vehicle examination report that I submitted on ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 9 1 5-26-16 around let's say 12:35. 2 Q. And this is prepared by you? 3 A. Yes. 4 Q. At the time of the inspection? 5 A. That's correct. 6 Q. Can you tell me what's involved in 7 the Level 3 inspection which you conducted on 8 that date? 9 A. Level 3 is basically just a driver's 10 inspection. You check the CDL, the company 11 credentials, make sure they have insurance and 12 paid their UCR fees, make sure the CDL is valid 13 and they have all their proper endorsements. 14 And check the paperwork for the load and stuff 15 like that. Check log books. 16 Q. What was your reason that you 17 happened to stop Mr. Michael and inspect him on 18 this date? 19 A. It has almost been over a year. 20 From my notes, I observed the driver holding up 21 and looking at his cell phone in his right hand 22 while he was operating a commercial motor 23 vehicle. 24 Q. Let me ask you, do you have any 25 independent recollection of that inspection ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 10 1 other than by your notes? 2 A. No, I don't. 3 Q. Do you recognize Mr. Michael who is 4 present today? 5 A. Assuming that's -- I mean, I am 6 assuming that is him, but I have had so many 7 inspections between then and now. 8 Q. You don't specifically recall? 9 A. No. 10 Q. Okay. Thank you. Based on your 11 notes, and you said looking at his cell phone in 12 his right hand, that is in the section labeled 13 Inspection Notes? 14 A. That's correct. 15 Q. Can you give us, if you recall, what 16 you mean by looking at cell phone? Do you 17 recall how he was holding or where he was 18 holding it? 19 A. Usually if I put that in my notes 20 that means I actually saw a device in their hand 21 and the person was looking over at it as they 22 were operating a commercial motor vehicle. 23 Q. You would not have noted it was a 24 cellular phone if you had not seen that it was a 25 cellular phone? ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 11 1 A. That's correct. 2 Q. Did you have a conversation with Mr. 3 Michael following or as part of your inspection? 4 A. Other than my notes here I don't 5 remember any specific conversation. 6 Q. And what do your notes indicate, 7 sir? 8 A. The driver stated he had an ear 9 piece and that he must have been looking at his 10 phone to see who was calling him. He also 11 advised that he gets load information over his 12 phone or on his phone. 13 Q. And do you recall seeing the phone 14 during your conversation with him? 15 A. I am assuming I must have because if 16 there wouldn't have been a phone in the truck I 17 wouldn't have continued on with the violation. 18 Q. Did you inspect the phone at all? 19 Did you actually physically inspect the phone? 20 Do you know? 21 A. Not that I remember. I mean, it's a 22 personal property thing. 23 Q. If you had would you have noted it 24 in your report? 25 A. Yes. If he would had said to me ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 12 1 look at it, check my call history, I would have 2 noted that in my report. 3 Q. Okay. In the violations section of 4 your report, do you see that, sir? 5 A. Yes. 6 Q. There is violation code that is 7 noted there. Is that something that you put 8 into this report yourself? 9 A. Yes. And we use what they call the 10 Aspen program. And the Aspen program that has 11 all the federal motor carrier regulations. And 12 I can pull them up and enter them, add notes and 13 stuff to them. 14 Q. So this would be something on a 15 computer that you would select? 16 A. Yes. 17 Q. And then it would fill certain 18 fields? 19 A. Right. 20 Q. Which of these fields are filled out 21 automatically and which would be entered by 22 yourself? 23 A. I can enter like the 392.82A1 and it 24 will pop up using a hand-held mobile telephone 25 while operating a commercial motor vehicle. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 13 1 So, or there is a drop box I scan 2 for driver violations. So, I don't remember if 3 I just clicked on that or I just inserted X from 4 knowing it. But it did populate all that, 5 violation description, all that automatically. 6 Q. But you would have the opportunity 7 to change the violation description if it did 8 not comport with your findings at the time? 9 A. Not the actual violation, but over 10 on the right-hand thing there is a remark 11 section for officers. 12 Q. Okay. Was this information 13 contained in this report accurate at the time 14 you put it into the Aspen program? 15 A. Yes. 16 Q. And what do you do with this report 17 once you are done with your inspection? 18 A. I will print a copy off for the 19 driver of the commercial motor vehicle. I will 20 go over the report explaining what the violation 21 is, show him where he needs to sign it. Advise 22 him he needs to turn it into his company. And 23 then the company has 15 days to respond to the 24 Columbus PUCO. 25 And then I have an electronic ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 14 1 version which I upload to the database which you 2 guys have down here in Columbus. 3 Q. And it's your understanding that 4 this report is generated from the uploaded 5 version of the report? 6 A. Yes. 7 Q. But it is, as you review it today, 8 accurately reflects your recollection of this 9 inspection? 10 A. Yes. 11 MR. MARGARD: Thank you. Your 12 Honor, I have no further questions. Tender the 13 witness for cross-examination. 14 EXAMINATION 15 By the Attorney Examiner: 16 Q. Trooper Hann, can you tell me where 17 you were, I assume parked, and could observe Mr. 18 Michael? 19 A. Specifically on this one, no, I 20 don't. Sometimes it can be a cross-over, 21 sometimes I can pull up next to a person and 22 look up in the -- 23 Q. While you are driving? 24 A. Yes. 25 Q. But in this case you don't recall? ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 15 1 A. No. To be honest with you I don't 2 specifically remember 3 Q. And anything about say weather 4 conditions or -- I will state the question this 5 way. If weather conditions were such that it 6 was say raining or misty or something like that, 7 would you record that kind of thing? 8 You know, if you have an inspection 9 with a violation such as this one. 10 A. I usually don't record weather. 11 If I had any doubt what I thought I saw I would 12 not have taken enforcement on that. 13 Q. I see. Okay. Mr. Maher. 14 MR. MAHER: Thank you, Your Honor. 15 CROSS-EXAMINATION 16 By Mr. Maher: 17 Q. This took place on IR 80? 18 A. Ohio Turnpike. 19 Q. Do you know what the speed limit is 20 there? 21 A. 70 mile an hour. 22 Q. And you can't recall whether or not 23 you were stationary or inside your vehicle? 24 A. No. To be honest, no, I don't. 25 MR. MAHER: Nothing further. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 16 1 ATTORNEY EXAMINER: All right. No 2 further questions at this time. But you can 3 take your seat and I may have further questions. 4 Thank you. 5 Mr. Margard, your next witness, 6 please. 7 MR. MARGARD: I would like to call 8 Mr. Rod Mosher. 9 (WITNESS SWORN) 10 - - - 11 RODNEY ALLEN MOSHER 12 called as a witness, being first duly sworn, 13 testified as follows: 14 DIRECT EXAMINATION 15 By Mr. Margard: 16 Q. State your full name and business 17 address, if you would, please. 18 A. My name is Rodney Allen Mosher. My 19 business address is 180 East Broad Street, 4th 20 Floor, with the Public Utilities Commission of 21 Ohio building. 22 Q. And by whom are you employed and in 23 what capacity? 24 A. I am employed by the Public 25 Utilities Commission of Ohio. I am the Chief of ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 17 1 the compliance in the Transportation Department. 2 Q. And what are your duties and 3 responsibilities as the chief of compliance? 4 A. To ensure that hearings are 5 scheduled properly, to ensure that fines are 6 assessed according to the guidelines. 7 Q. And how long have you been in that 8 position? 9 A. I have been employed by the PUCO 10 since March 20th of this year. 11 Q. Since that was fairly recent I trust 12 that you were not the person responsible for 13 determining the initial forfeiture assessment 14 value in this case; is that correct? 15 A. Yes. 16 Q. Have you had an opportunity to 17 review the Commission's records with respect to 18 this case? 19 A. Yes, I have. 20 Q. Before we get to specifics of the 21 case let me ask you about your experience. 22 Could you give us an idea about what your 23 background was prior to taking the position? 24 A. Most recently I was employed by the 25 State Highway Patrol. I was there for almost 30 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 18 1 years. 2 Q. And in what capacity? 3 A. Well, several different capacities. 4 Most recently working in licensing commercial 5 standards as the commercial enforcement 6 coordinator for the District 6, Columbus region. 7 Q. Would you please describe for us how 8 a civil forfeiture is calculated and determined 9 in cases like this? 10 A. It's determined by we have four 11 groups of violations. The groups are determined 12 by the violation itself. Some are equipment 13 violations, some are driver related violations. 14 This is a group 4 violation which is 15 kind of a -- it's not a mechanical-type 16 violation, it's a driver, something the driver 17 did or something the company did and created a 18 violation. 19 So the assessments for group 4 20 aren't necessarily the same as they are in group 21 1, 2, 3. Group 4 each violation is assessed 22 independently of the others. 23 Q. Now, these groupings, they are part 24 of some sort of a schedule that is maintained? 25 A. Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 19 1 Q. And who create this schedule? 2 A. What they are based on is the 3 recommendations from the Commercial Vehicle 4 Safety Alliance, CVSA. 5 Q. And there are dollar amounts 6 associated with the different groups and 7 different violations within each group? 8 A. Yes, sir. 9 Q. And are those dollar amounts 10 consistent with those recommended by the CVSA? 11 A. Yes, they are. 12 Q. And is the procedure that you have 13 just described for me the same procedure that 14 you use in all violations where assessments are 15 made? 16 A. Yes, sir. 17 Q. And in your inspection or in your 18 review of the Commission's records in this case 19 what did -- you concluded that this was a group 20 4 violation; correct? 21 A. That's correct. 22 Q. And can you tell me what the 23 forfeiture assessment was in this case? 24 A. The assessment was $250 is 25 the correct amount. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 20 1 Q. And based on the schedule and based 2 on the CVSA recommended forfeiture amount? 3 A. That's correct. 4 MR. MARGARD: Your Honor, may I 5 approach? 6 ATTORNEY EXAMINER: Yes. 7 (EXHIBIT MARKED FOR PURPOSES OF 8 IDENTIFICATION) 9 Q. Mr. Mosher, I have handed you a 10 document that I have marked for purposes of 11 identification as Staff Exhibit No. 2. Do you 12 recognize this document? 13 A. Yes, sir. It's a copy of a letter 14 that was sent to Mr. Michael. 15 Q. And this is one of the documents 16 that is maintained in the Commission's records 17 with respect to this matter? 18 A. Yes, it is. 19 Q. And what specifically is this 20 letter? 21 A. This is called a Notice of 22 Preliminary Determination. This would be sent 23 to Respondent after the Respondent had an 24 opportunity to speak with one of the compliance 25 officers to settle the case in some manner other ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 21 1 than hearing. 2 Q. And this notice reflects the $250 3 forfeiture that you testified to earlier; 4 correct? 5 A. Yes, it does. 6 Q. In your review of the Commission's 7 records is it your opinion that Mr. Michael 8 received all of the notices to which he was 9 entitled by law? 10 A. Yes, he did. 11 Q. And in yor opinion was this 12 forfeiture accurately assessed in this matter? 13 A. Yes, it is. 14 MR. MARGARD: Your Honor, I tender 15 the witness fo cross-examination. 16 HEARING OFFICER: All right. Mr. 17 Maher. 18 MR. MAHER: No questions. 19 ATTORNEY EXAMINER: No questions. 20 Mr. Margard, will you be making a motion to move 21 the exhibits into evidence? 22 MR. MARGARD: I have no further 23 witnesses, Your Honor, and I would respectfully 24 move for the admission of Staff Exhibits 1 and 25 2. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 22 1 ATTORNEY EXAMINER: Thank you. Mr. 2 Maher, any objections? 3 MR. MAHER: No objections 4 ATTORNEY EXAMINER; Thank you. Then 5 Staff Exhibits 1 and 2 will be admitted. 6 (EXHIBITS ADMITTED INTO 7 EVIDENCE) 8 ATTORNEY EXAMINER: Mr. Maher, now 9 it is your opportunity to present your witness. 10 MR. MAHER: Yes. We will be 11 calling Mr. Michael to the stand. 12 (WITNESS SWORN) 13 - - - 14 TIMOTHY MICHAEL 15 called as a witness, being first duly sworn, 16 testified as follows: 17 DIRECT EXAMINATION 18 By Mr. Maher: 19 Q. Mr. Michael, can you please state 20 your name? 21 A. Timothy L. Michael. 22 Q. And what is your business address? 23 A. 12046 County Road 44, Millersburg, 24 Indiana. 25 Q. I want to call your recollection ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 23 1 back to May 26th of last year. Do you recall 2 that day? 3 A. Yes. 4 Q. What was that day like? 5 A. Not a rainy day, sunny day. 6 Q. And you were on the Ohio Turnpike? 7 A. Yes. 8 Q. What was the speed limit on that 9 road? 10 A. 70 miles an hour. 11 Q. And were you traveling with the flow 12 of traffic that day? 13 A. Yes. 14 Q. Do you recall seeing the officer 15 that day? 16 A. Yes. 17 Q. And where was he? 18 A. Behind me. 19 Q. How far behind you? 20 A. You know, I don't know until I 21 noticed his lights. He was behind me the entire 22 time. He never came up on the left side of me, 23 he was not in the median. He just pulled me 24 over and walked up the side of my door on the 25 passenger side and opened it. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 24 1 Q. Let me stop you there real quick. 2 When he is behind you is he in your lane, is he 3 in another lane? 4 A. Yes. He was in, yes. 5 Q. How many other lanes are there? 6 A. Two. 7 ATTORNEY EXAMINER: He was in your 8 lane then? 9 A. Yes, when I saw him. 10 ATTORNEY EXAMINER: Okay. 11 Q. And then he executed a traffic stop? 12 A. Yes. 13 Q. And he came up to your door? 14 A. Correct. 15 Q. And then what happened? 16 A. I asked him why he pulled me over. 17 Q. And what did he say? 18 A. He said I will tell you when you 19 give me your registration, your driver's license 20 and so forth, which I did. 21 Q. Did you comply and give him your 22 registration? 23 A. Yes, I did. 24 Q. And did he proceed with an 25 inspection? ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 25 1 A. Yes. 2 Q. Were there any other violations? 3 A. No. 4 Q. A clean inspection? 5 A. Correct. 6 Q. At what point did he tell you that 7 he thought you were using your phone? 8 A. When I was being pretty persistent 9 as to why he pulled me over, because officers 10 can pull you over for any particular reason, a 11 random pull over for CDL drivers. That is what 12 I thought he was pulling me over for. 13 And then he insisted that I was 14 using my hand-held devise and he saw me on it. 15 I disagreed with him. I even -- I carry a dog 16 normally, I haul the dog and I didn't have the 17 dog with me that day. And I put the phone, I 18 picked it up and I put it over on his seat to 19 even show him that he could look at it which, he 20 declined to do at that time. 21 Q. So when you say on his seat, where 22 the dog would normally sit? 23 A. Correct. Yes. 24 Q. Where was the phone prior to that? 25 A. On the dash. I have a mounting ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 26 1 bracket, a sticky -- I have two devices. I have 2 one that sits in like a saddle, which I can see 3 it from the driver's seat. 4 Then I have a sticky thing that just 5 kind of keeps it from sliding around. And it 6 sits on the dash as well. 7 Q. Was it on the saddle or the sticky 8 thing? 9 A. On the sticky thing. 10 Q. So you had to physically remove it 11 from that location to produce it to the officer? 12 A. That's correct. 13 Q. And that was on the passenger side 14 of the vehicle? 15 A. No. It's within arm reach of my 16 driver's seat. It's just right, to the right of 17 my steering wheel. 18 Q. Okay. 19 A. Everything is within reaching 20 distance so I wouldn't have to get out of my 21 seat. 22 Q. After you produced the phone and 23 insisted that you were not on it did he look at 24 your phone at all? 25 A. Nope. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 27 1 Q. Did he check the call logs? 2 A. No. 3 Q. Check your text messages? 4 A. No. 5 Q. Did you tell him that he could look 6 at that? 7 A. Yes. 8 Q. And he did not? 9 A. Did not. 10 Q. Is there anything else you want to 11 tell us about that day? 12 A. No. I am not going to argue with 13 officers when they pull you over. That is 14 the No. 1 thing you don't do, you know, because 15 it just exacerbates the situation and escalates 16 it into worse. So, no, I did not argue, I just 17 went on. 18 Q. You maintain that you were not on 19 your phone? 20 A. Absolutely. 21 Q. You were not holding it? 22 A. No. 23 Q. Until he approached and you produced 24 the phone? 25 A. That's right. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 28 1 MR. MAHER: Nothing further. 2 EXAMINATION 3 By the Attorney Examiner: 4 Q. Mr. Michael, you were indicating 5 that you offered Trooper Hann to take a look at 6 your hand-held telephone and he declined. 7 A. That's correct. 8 Q. And there is something in the 9 inspection notes that refer to an ear piece and 10 looking at the phone to see who called. What 11 are your thoughts on that? 12 A. I wear an ear piece all the time, 13 not all the time, but most of the time when I am 14 in the truck if I ever use it, I have it right 15 there. That is the phone that I use right there 16 (indicating). I am used to driving with it over 17 here. I do it all the time. It's just a habit 18 for me. I am a CDL driver. 19 Q. The ear piece then is so you can do 20 hands free talking while talking on the phone. 21 A. Right. I can answer it, I can 22 disconnect the phone and everything from the ear 23 piece itself. 24 Q. Okay. 25 A. So when I heard like a beep tone a ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 29 1 little bit ago that is my notebook, or if my 2 phone would have rang I could of just went like 3 there (indicating) and it would have answered. 4 Q. And the comment in the notes about 5 getting load information on the telephone, what 6 are your thoughts on that? 7 A. Well, e-mail, naturally e-mails is 8 probably one thing everybody gets load boards. 9 When I pull over, when I am in a stopped 10 position, yes, I will look at my e-mail. 11 Q. And getting load information like 12 where you will pick up the next load or 13 something? 14 A. No. Dispatch loads. The 15 dispatchers out here e-mail, so there will be a 16 constant barrage of e-mails coming over. And 17 this is my typical operation. When I go out I 18 am fully loaded with the outgoing bound and the 19 return bound. So I really don't have a desire 20 to get on the phone, but they still come. You 21 know, we still get notifications on the phone. 22 Q. You are indicating at any rate you 23 were not on your -- you were not using your 24 mobile phone that day, be it hand-held or even 25 using your ear piece? ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 30 1 A. Correct. 2 ATTORNEY EXAMINER: Mr. Margard. 3 MR. MARGARD: Just a couple 4 questions. Thank you, Your Honor. 5 CROSS-EXAMINATION 6 By Mr. Margard: 7 Q. When did you first notice the 8 Trooper? 9 A. When I looked at my rear view 10 mirror, which I randomly do all the time. 11 Q. How long prior to the stop, if you 12 recall, was it when you first noticed the 13 Trooper? 14 A. He wasn't -- prior to the stop? 15 Q. Yes, sir. 16 A. I don't know. When I saw the 17 flashing lights behind my truck and I pulled 18 over. 19 Q. Did you notice the Trooper prior to 20 his lights flashing? 21 A. No. He was not on the side of me, 22 to the left of me, in the left lane. I was in 23 the right bound lane, on the right lane going 24 eastbound toward Cleveland. And he did not come 25 up beside me, nor was he sitting in the median. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 31 1 ATTORNEY EXAMINER: Apparently he 2 was also not sitting on the side of the road 3 either? 4 A. No. 5 Q. Was he in the direction you were 6 driving? 7 A. I did not see him there. 8 ATTORNEY EXAMINER: Okay. 9 MR. MARGARD: I don't have any 10 further questions. Thank you, Your Honor. 11 ATTORNEY EXAMINER: All right. Mr. 12 Maher, any follow-up comments? 13 MR. MAHER: Just briefly 14 REDIRECT EXAMINATION 15 By Mr. Maher: 16 Q. What type of vehicle was he in? 17 A. I think he was in I think an SUV. 18 Q. And how tall would you say that SUV 19 is? 20 A. They are not very tall. Maybe about 21 60 inches, 50, 60 inches tall. 22 Q. Had he pulled up beside you would he 23 even have view to be able to see that you had a 24 hand-held device in your hand? 25 MR. MARGARD: I will object, Your ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 32 1 Honor. This could have been covered in the 2 direct. This is beyond my cross. 3 ATTORNEY EXAMINER: Well, I will 4 agree to that objection, but actually I will ask 5 this of Trooper Hann even though you are not on 6 the witness stand. What kind of vehicle did you 7 have? 8 TROOPER HANN: Chevy Tahoe. 9 ATTORNEY EXAMINER: Okay. And just 10 for my own knowledge, you indicated in your 11 report, I can't recall exactly where you were 12 positioned, or where you were located when you 13 saw Mr. Michael today, on that day I should say. 14 Nonetheless I will ask this question 15 to help me. You indicated in your opinion when 16 you are driving the Tahoe you can actually see 17 in, when you are alongside of a commercial 18 vehicle, you can actually see into it. 19 TROOPER HANN: Yes. You can 20 actually look up and lean a little bit and look 21 up into the windows. 22 ATTORNEY EXAMINER: On this you 23 can't recall -- 24 TROOPER HANN: I do not recall. 25 ATTORNEY EXAMINER: All right. Mr. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 33 1 Margard, anything additional. 2 MR. MARGARD: Not for this witness, 3 Your Honor. 4 ATTORNEY EXAMINER: All right. 5 Gentlemen, do either of you care to submit 6 briefs in this case? 7 MR. MARGARD: Your Honor, I would 8 like to recall Trooper Hann. 9 ATTORNEY EXAMINER: Fine, Mr. 10 Michael, you can take your seat. Trooper Hann, 11 you can come back up here then. Mr. Margard, 12 please continue. 13 MR. MARGARD: Thank you, Your Honor. 14 TROOPER BRIAN HANN 15 recalled as a witness, being previously duly 16 sworn, testified further as follows: 17 REDIRECT EXAMINATION 18 By Mr. Margard: 19 Q. Trooper Hann, you were present 20 during Mr. Michael's testimony; is that correct? 21 A. Yes, sir. 22 Q. In the course of his testimony he 23 described how you conducted your inspection. 24 Do you recall that description? 25 A. From beginning of the traffic stop? ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 34 1 Q. Yes, sir. 2 A. Yes. 3 Q. Did that actually reflect how you 4 typically conduct an inspection? 5 A. Typically not. 6 Q. And tell me what your usual course 7 of conduct is when you conduct an inspection? 8 A. Before I make a stop I do go up to 9 the passenger side of the commercial motor 10 vehicle, it's safer because I am on the Ohio 11 Turnpike. 12 You knock on the door, I will ask 13 the driver to open the door. Once I open them I 14 don't hold them -- I will tell them the 15 violation once they give me their information. 16 I always tell people this is the reason I 17 stopped you. I am a DOT officer and I am going 18 to conduct, I want to conduct an inspection. 19 Q. You will tell them the reason for 20 the stop before you would request any 21 documentation? 22 A. Yes. 23 Q. Okay. 24 A. I certainly wouldn't say I am not 25 going to tell you the reason I stopped you until ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 35 1 you give me the information I requested. I 2 don't operate that way. 3 Q. Now, there was also a line of 4 questioning from the Judge with respect to what 5 you can see from your vehicle. Have you made 6 other stops where you have been able to observe 7 the use of a device? 8 A. Absolutely. 9 Q. And that has happened when you 10 pulled up next to the cab? 11 A. Yes. I have had people with lane 12 violations -- 13 MR. MAHER: I want to object at this 14 point. 15 ATTORNEY EXAMINER: We will let him 16 continue with the questions. Go ahead. 17 A. I would want to know why this person 18 is driving off the side of the road or 19 something. So, if it's safe enough I will go 20 off to the side to see if the driver is dozing 21 off. 22 I have had people that are looking 23 down to the right like this (indicating) but I 24 can't see what they are doing, and there is not 25 much I can do. ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 36 1 But, I have had people that as clear 2 as day I can see them manipulating a hand-held 3 device. Yes, yes, you can get a view of the 4 inside of the driver's side of a commercial 5 vehicle from the driver's seat of a Tahoe. 6 Q. Is that ever something that you 7 could observe in the driver's rear view mirror, 8 side view mirror? 9 A. Yes. 10 Q. It's possible to be behind a vehicle 11 and still observe a driver holding a device in 12 his hand even from behind the vehicle? 13 A. I would say It would be a little bit 14 more difficult. It depends on the mirro and how 15 it's tilted towards, you know, what view of the 16 driver you would get. 17 Q. But, it's possible? 18 A. It's possible. 19 MR. MARGARD: I have nothing 20 further. Thank you, Your Honor. 21 ATTORNEY EXAMINER: Mr. Maher. 22 MR. MAHER: No, Your Honor. 23 ATTORNEY EXAMINER: All right. 24 Thank you. You can take your seat. 25 MR. MARGARD: Can we go off the ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 37 1 record? 2 ATTORNEY EXAMINER: Go off the 3 record for just a minute. 4 (DISCUSSION OFF THE RECORD) 5 ATTORNEY EXAMINER: Do either 6 counsel have any additional questions or 7 comments? 8 MR. MARGARD: None, Your Honor. 9 ATTORNEY EXAMINER: Mr. Maher. 10 MR. MAHER: Just a brief closing 11 statement. 12 ATTORNEY EXAMINER: You can make 13 that. Go ahead. 14 MR. MAHER: On May 26th, at the 15 time in question, 2016, Mr. Michael was going 16 down IR 80 approximately 70 miles an hour. 17 Trooper Hann cannot recall what the weather was 18 like that day, can't recall that this is Mr. 19 Michael sitting here, can't recall what he looks 20 like, can't recall where he was positioned 21 during that time. 22 He testified as to what his typical 23 action would be, but that does not apply in this 24 case on that day. 25 Mr. Michael testified he clearly ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 38 1 recalled that day, was not on his hand-held 2 devise, was not holding it, was not even on his 3 Bluetooth ear piece. 4 We maintain that he did not commit 5 this violation. Nothing further. 6 ATTORNEY EXAMINER: Mr. Margard, do 7 you wish to make a closing comment as well? 8 MR. MARGARD: Well, thank you, Your 9 Honor, for that opportunity. I will say that 10 the Trooper indicated that he reflects in his 11 report the observations and findings at the 12 time. 13 He indicates his usual course of 14 conduct and how he conducts inspections, which 15 is at odds with that indicated by the Respondent 16 in this matter. 17 He indicated that he saw a device in 18 his hand, that that is something he is capable 19 of seeing, even in the right circumstances from 20 behind the vehicle. 21 Your Honor, we will maintain that 22 the incident report in this case, Staff Exhibit 23 1, accurately reflects the findings at the time 24 and the observations made by Trooper Hann, and 25 would respectfully request that the forfeiture ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 39 1 assessment be upheld by the Commission. 2 ATTORNEY EXAMINER: Thank you. And, 3 Mr. Maher, anything further? 4 MR. MAHER: Nothing further. 5 MR. MARGARD: No, Your Honor. 6 ATTORNEY EXAMINER: I want to thank 7 everyone for attending today, and I believe that 8 wraps up the proceedings. Thank you. And have 9 a good trip home, or wherevery your destination 10 is. 11 (At 1:25 P.M. the hearing was 12 concluded). 13 - - - 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481 40 1 CERTIFICATE 2 I do hereby certify that the foregoing is a true and correct transcript of the 3 proceedings taken by me in this matter on May 15, 2017, and carefully compared with my 4 original stenographic notes. 5 __________________________ 6 Michael O. Spencer, Registered Professional 7 Reporter. 8 - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614)224-9481