1 1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of : : 4 Andrew P. Walker : Case No. 16-2348-TR-CVF : 5 : 6 - - - 7 PROCEEDINGS 8 before Kerry Sheets, Attorney Examiner, at the 9 offices of the Public Utilities Commission of Ohio, 10 180 East Broad Street, Room 11-C, Columbus, Ohio, on 11 Thursday, June 29, 2017, at 1:30 p.m. 12 - - - 13 14 15 16 17 18 19 20 21 22 23 ARMSTRONG & OKEY, INC. 222 East Town Street, Second Floor 24 Columbus, Ohio 43215-4620 (614) 224-9481 - (800) 223-9481 25 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 2 1 APPEARANCES: 2 Michael DeWine, Ohio Attorney General By Thomas G. Lindgren, Esq. 3 Assistant Attorney General 30 East Broad Street, 16th Floor 4 Columbus, Ohio 43215 5 On behalf of the Staff of the Public Utilities Commission of Ohio. 6 Carpenter Lipps & Leland LLP 7 By Kimberly W. Bojko, Esq. and James D. Perko Jr., Esq. 8 280 North High Street, Suite 1300 Columbus, Ohio 43215 9 On behalf of the Respondent. 10 - - - 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 2 - - - 3 WITNESSES: PAGE 4 JONATHAN M. HOLZWORTH Direct Examination by Mr. Lindgren 5 5 Cross-Examination by Mr. Perko 11 Redirect Examination by Mr. Lindgren 35 6 Recross-Examination by Mr. Perko 36 7 ANDREW P. WALKER Direct Examination by Mr. Perko 41 8 Cross-Examination by Mr. Lindgren 53 Redirect Examination by Mr. Perko 55 9 - - - 10 STAFF EXHIBITS ID'D ADMT'D 11 1 - Driver/vehicle examination report 7 39 12 2 - Notice of preliminary determination 38 39 13 - - - 14 RESPONDENT'S EXHIBITS ID'D ADMT'D 15 WALKER 1 - Google Maps street view 20 57 16 WALKER 2 - Photograph 48 57 17 WALKER 3 - Photograph 48 57 18 - - - 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 4 1 Thursday afternoon, 2 June 29, 2017. 3 - - - 4 THE ATTORNEY EXAMINER: The Public 5 Utilities Commission of Ohio has set for hearing at 6 this time and place Case No. 16-2348-TR-CVF in the 7 matter of Andrew P. Walker, notice of apparent 8 violation and intent to assess forfeiture. My name 9 is Kerry Sheets. I'm the attorney examiner with the 10 Commission, and I've been assigned to hear this 11 case. 12 May I now have the appearances of the 13 parties, please, starting with Staff. 14 MR. LINDGREN: On behalf of the 15 Commission Staff, Ohio Attorney General Mike DeWine 16 by Thomas G. Lindgren, assistant attorney general, 17 30 East Broad Street, 16th Floor, Columbus, Ohio 18 43215. 19 THE ATTORNEY EXAMINER: Thank you. 20 For the respondent. 21 MR. PERKO: On behalf of the 22 respondent, Andrew P. Walker, James D. Perko Jr. and 23 Kimberly W. Bojko with the law firm of Carpenter 24 Lipps & Leland, 280 North High Street, Suite 1300, 25 Columbus, Ohio 43215. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 5 1 THE ATTORNEY EXAMINER: Very good. Do 2 we have any preliminary matters to take care of this 3 morning? 4 MR. LINDGREN: None, Your Honor. 5 THE ATTORNEY EXAMINER: None? We'll 6 start with Staff's witnesses, then. 7 MR. LINDGREN: Thank you, Your Honor. 8 The Staff calls to the stand Officer J.M. 9 Holzworth. 10 (Witness sworn.) 11 THE ATTORNEY EXAMINER: Be seated. 12 - - - 13 JONATHAN M. HOLZWORTH, 14 called as a witness, being first duly sworn, 15 testified as follows: 16 DIRECT EXAMINATION 17 BY MR. LINDGREN: 18 Q. Good afternoon, sir. 19 A. Good afternoon, sir. 20 Q. What is your full name for the record? 21 A. Jonathan M. Holzworth. 22 Q. And what is your business address? 23 A. 1653 Marion Road, Bucyrus, Ohio 44820. 24 Q. And where are you employed? 25 A. The Ohio State Highway Patrol. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 6 1 Q. And what is your position with the Ohio 2 State Highway Patrol? 3 A. Motor carrier enforcement inspector 4 supervisor. 5 Q. How long have you been in that 6 position? 7 A. I've been in motor carrier for 19 8 years, supervisor for approximately 5. 9 Q. Thank you. And what are your duties? 10 A. Patrol the highways, inspect commercial 11 trucks, trailers, and commercial drivers. 12 Q. Thank you. And what sort of training 13 have you received for your position? 14 A. North American Standard A and B, which 15 is driver/vehicle; hazmat; tanker; bulk; other bulk; 16 motorcoach; et cetera. Various other trainings and 17 in-services. 18 Q. Thank you. Do you hold any 19 certifications? 20 A. I'm certified in everything I just 21 mentioned. 22 Q. Thank you. And are you familiar with 23 the Federal Motor Carrier Safety regulations? 24 A. Yes, sir. 25 Q. And, in particular, are you familiar ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 7 1 with the regulations that cover the use of mobile 2 communication devices? 3 A. Yes, sir. 4 Q. Thank you. Do you recall inspecting a 5 vehicle driven by Andrew P. Walker, the respondent 6 in this case? 7 A. Somewhat. I mean, I see a lot of 8 different faces. So if I testify from my inspection 9 that you have in front of you -- I mean, I don't 10 recall the exact particulars, but once I read the 11 notes section -- that's why I'll refer to that. 12 MR. LINDGREN: Thank you. 13 May I approach the witness? 14 THE ATTORNEY EXAMINER: You may. 15 MR. LINDGREN: Let the record reflect 16 that I am handing the witness a document that I have 17 marked as Staff Exhibit 1. 18 BY MR. LINDGREN: 19 Q. Mr. Holzworth, do you recognize this 20 document? 21 A. Yes, sir. 22 Q. And what is it? 23 A. It's a driver/vehicle examination 24 report we generate after we complete a roadside 25 inspection. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 8 1 Q. And when did you prepare this report? 2 A. 9/6 of 2016, 7A in the morning -- 3 7:00 o'clock in the morning. 7:22 in the morning. 4 Q. And can you just briefly describe 5 what's contained in this report? 6 A. Sure. Formatted basically with the 7 carrier name up top, Baylor Trucking; location; what 8 type of inspection it is -- this one shows the 9 roadside, Interstate 71, Milepost 76 -- just the 10 vehicle information; tractor trailer information. 11 Scroll down a little bit. It's the 12 violation section code. There's a violation and 13 just a brief description of it; any hazmat that was 14 transported -- in this case, it doesn't look like 15 there was any on here -- then a notes section; 16 special study fields; locally defined fields; 17 driver's name; and my name. 18 Q. Thank you. And who was the driver in 19 this -- of this vehicle? 20 A. Andrew P. Walker. 21 Q. Thank you. And are there any 22 violations listed in this report? 23 A. Yes, sir. A driver violation, Federal 24 Code 392.82(a)(1), driver using a handheld cell 25 phone while operating a commercial motor vehicle. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 9 1 Q. Thank you. And did you observe the 2 driver, Andrew P. Walker, using a handheld mobile 3 telephone? 4 A. Yes, sir. 5 Q. And where were you in relation to the 6 vehicle when you made this observation? 7 A. Let me read here. Generally, I sit at 8 the 179, facing southbound traffic on I-71, Richland 9 County. And the stop occurred at the 176. 10 Q. So would you have been in the median? 11 A. Right. 12 Q. Thank you. Now, did you have a clear, 13 unobstructed view into the cab? 14 A. Yes, sir. 15 MR. PERKO: Objection. He's leading 16 the witness, and he doesn't recall. He stated 17 earlier that he doesn't recall the events, that he 18 needed his report. 19 THE ATTORNEY EXAMINER: I'm sorry? 20 You're going to have to speak up a little bit. 21 MR. PERKO: Excuse me, sir. He's 22 leading the witness, and the witness also testified 23 he doesn't recall the events, that he needs his 24 report. So now he's testifying as to the events 25 that occurred that day when he previously testified ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 10 1 that he doesn't recall those events. 2 THE ATTORNEY EXAMINER: I'm going to 3 overrule your objection. 4 Let him complete his testimony. 5 MR. LINDGREN: Thank you. 6 BY MR. LINDGREN: 7 Q. Did you prepare this report immediately 8 following your inspection and your interaction with 9 the driver? 10 A. Every report's generated in the car. 11 And then, once we get all the data entered, we print 12 it out and give the driver a copy of it. 13 Q. Thank you. Does anything in this 14 report appear to have been altered since you entered 15 the information? 16 A. The only thing that's different is the 17 header up top. Once we upload it to the server, it 18 changes from our header from "State Highway Patrol" 19 to the "Public Utilities Commission," but everything 20 else looks the same. 21 Q. Thank you. And is this a standard type 22 of report used in the regular course of your 23 business? 24 A. Yes. 25 Q. Thank you. Do you recall if the driver ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 11 1 made any statements to you during the course of the 2 inspection? 3 A. From reading the notes, I remember him 4 saying it was plugged in through his stereo and he 5 didn't need to hold it, but when he passed me, he 6 was holding it. 7 MR. LINDGREN: Thank you. 8 Thank you. I have no further questions at 9 this time. 10 THE ATTORNEY EXAMINER: Do you have any 11 questions for this witness? 12 MR. PERKO: Yes, Your Honor. 13 - - - 14 CROSS-EXAMINATION 15 BY MR. PERKO: 16 Q. Good afternoon, Officer Holzworth. 17 A. Good afternoon. 18 Q. Officer Holzworth, what city do you 19 live in? 20 A. I'm sorry? 21 Q. What city do you live in? 22 A. What city do I live in? Mansfield, 23 Ohio. 24 Q. And how long have you lived there? 25 A. On and off, approximately 30-plus ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 12 1 years. 2 Q. And you stated that your current 3 position is with the Ohio State Highway Patrol? 4 A. Correct. 5 Q. And how long, again, have you been 6 working for them? 7 A. 20 years. 8 Q. And who did you work for on 9 September 6, 2016? 10 A. The Ohio State Highway Patrol. 11 Q. What was your title at that time? 12 A. Motor carrier enforcement inspector 13 supervisor. 14 Q. Is it true that, as part of your job, 15 you would issue citations to commercial motor 16 vehicle operators? 17 A. No, that's not true. 18 Q. Is it true that that was one of your -- 19 A. We don't issue citations. We generate 20 reports. Troopers issue citations. 21 Q. And how are these reports issued? 22 A. When we make a commercial vehicle stop 23 for inspection, we gather information from the 24 driver and off the vehicle. We enter the 25 information into our Aspen program, which you see in ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 13 1 front of you, which is Staff Exhibit 1. This is -- 2 when all the information is entered, then it's 3 uploaded to the Public Utilities Commission's server 4 at the end of the day or right after the inspection. 5 Q. To whom do you issue these reports to? 6 A. We give a copy to the driver, and, like 7 I said, again, we upload our inspections at the end 8 of the workday. 9 Q. Does the driver get a copy -- 10 A. Absolutely. 11 Q. -- of the report after it's uploaded? 12 A. No. Before it's uploaded. 13 Q. Are there changes to the report before 14 it's -- from the version you give the driver to the 15 version that's uploaded? 16 A. No. There shouldn't be. If there's 17 any changes -- the only changes that I'm familiar 18 with is that the times are wrong because what 19 happens with some of us is we'll do our roadside 20 inspection, and then we'll open up our program and 21 start typing and the times aren't correct. So we go 22 by the time we actually initially stopped the 23 vehicle. So sometimes you're outside, talking to 24 the driver for 10, 15 minutes in the course of that 25 inspection. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 14 1 So the only thing I would change would be 2 the starting times. Sometimes they fall short. 3 Other than that, everything pretty much should be 4 the same. 5 Q. How frequently do you issue these 6 reports? 7 A. It all depends on what my duties are 8 for the day. Sometimes I have administrative stuff 9 I have to do in the office. Sometimes I do roadside 10 inspections. So ... 11 Q. In the example of the day in which your 12 duties are roadside, how many reports do you issue 13 on that day? 14 A. It all depends. You know, there's a 15 lot of variances. Generally, three to five. It 16 depends on if I have administrative duties or not. 17 Q. Are you provided a vehicle to conduct 18 these duties? 19 A. Yes, sir. 20 Q. What type of vehicle is it? 21 A. It's a Chevy Tahoe. 22 Q. And, Officer Holzworth, do you wear any 23 sort of corrective lenses? 24 A. I do not. 25 Q. Do you wear sunglasses? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 15 1 A. Occasionally. 2 Q. Do you wear sunglasses on duty? 3 A. Occasionally. 4 Q. Just to confirm, you have no 5 recollection of Mr. Walker, correct? 6 A. Do I have any recollection? I see the 7 stop. 8 See, what happens is we see so many faces, I 9 can't -- this is almost nine, ten months ago -- nine 10 months ago. So I see a lot of faces in the course 11 of my duties. To remember the exact circumstance of 12 each individual stop is kind of tough for me unless 13 I sit here and look at it. 14 Q. So your answer is no, correct? 15 A. Am I asking you? Try it again. 16 Q. Your answer is no, that you do not 17 recollect him, remember him. 18 A. No. I couldn't pick him out of a 19 lineup if you told me -- put him in a lineup. I 20 mean, I was with him -- seen him one time in my life 21 for 20 minutes, 30 minutes. 22 Q. So that would be a no, correct? 23 A. That would be correct. I don't. 24 Q. And you have no independent knowledge 25 of the event -- correct? -- other than your report? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 16 1 A. No, I remember -- I remember him 2 telling me that he had it plugged in through the 3 stereo. I mean, you don't come up on these 4 violations very often, especially ones that say they 5 talk through their stereo. That's the only one I've 6 ever had of that. 7 Q. When did you report for work on 8 September 6, 2016? 9 A. When did I report for work? The exact 10 time? Before 7:00 o'clock. I can't give you an 11 exact time. 12 Q. Do you recall how many stops you 13 made -- 14 A. That I made? 15 Q. -- on September 6, 2016? 16 A. Let's see. That's probably right 17 around the holiday reporting period, so I was 18 probably on the road the whole, entire day. So 19 anywhere from -- on a holiday reporting period, I'd 20 say anywhere from five to eight, nine. But exact 21 number? No, I don't recall. 22 Q. Do you recall what types of reports you 23 issued on that day? 24 A. The same one you have in front of you: 25 Level III inspection. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 17 1 Q. Do you recall the time when you first 2 observed the CMV operated by Mr. Walker? 3 A. Probably right before 7:22. It only 4 takes a couple seconds to stop them, maybe a few 5 minutes. 7:18. 6 Q. What was the reason you stopped him? 7 A. For using a cell phone while operating 8 a commercial motor vehicle. If you look in the 9 parentheses under the violation, it says "OBVI." 10 That stands for obvious violation. And that would 11 be my obvious violation. 12 Q. Other than this violation, could you 13 tell us what other violations you reported that day? 14 A. If there were more violations, it would 15 be noted on the report. So there's none. 16 Q. Of your other stops. You testified 17 that you had between five and nine stops. Do you 18 recall what -- 19 A. No, I don't remember -- 20 MR. LINDGREN: Objection. Relevancy. 21 THE WITNESS: I couldn't tell you. 22 BY MR. PERKO: 23 Q. You testified when you first observed 24 Mr. Walker's CMV you were sitting in the median, 25 correct? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 18 1 A. Correct. 2 Q. And you were in your vehicle when you 3 first observed him, correct? 4 A. Right. 5 Q. Was your vehicle parked, or were you 6 moving at the time you first observed him? 7 A. Sitting stationary at the 179. So I 8 would be parked. 9 Q. What direction were you facing? 10 A. Facing southbound traffic. 11 Q. Would that be the west? 12 A. It would be -- yeah, I was facing 13 southbound traffic. Are you asking me what traffic 14 I was observing? 15 Q. Let's first -- what lane -- what lane 16 of traffic were you observing? 17 A. Southbound. 18 Q. Southbound. And that would be the west 19 direction, correct? 20 A. Yes. 21 Q. And would you say your vehicle was 22 perpendicular to the lanes of traffic? 23 A. Sometimes I pull in kind of like this. 24 Sometimes I move a little bit. Depends on -- it's 25 kind of a tight crossover. It depends on how much ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 19 1 rain it is. And I'm kind of particular about my car 2 getting dirty and I don't like to sit in mud 3 puddles, so I don't pull into a puddle. 4 So sometimes I'll sit like this. Sometimes 5 I'll sit like that. It depends. 6 Q. So on the morning of -- 7 A. I don't recall. I don't know how I was 8 parked in the crossover that day. 9 Q. Let me finish my question. 10 A. I was facing southbound traffic. The 11 exact identity of how my car was parked, I couldn't 12 tell you. 13 Q. I'll finish my question; then I'll 14 allow you to answer to keep the record clear. 15 Was your vehicle perpendicular to the 16 direction of the lanes of traffic on September 6, 17 2016? 18 A. It could have been. 19 Q. And what were you doing immediately 20 prior to observing Mr. Walker's CMV? 21 A. Observing traffic -- commercial 22 traffic. 23 Q. At that time, were you wearing any 24 sunglasses or corrective lenses? 25 A. I don't wear corrective lenses. I ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 20 1 don't need them. And sunglasses on at 7:00 o'clock 2 in the morning? It's possible. I don't recall. 3 Q. How many lanes of traffic are there in 4 this section of I-71 where you observed Mr. Walker's 5 CMV? 6 A. How many lanes are there? There are 7 three on each side, north- and southbound. 8 MR. PERKO: Your Honor, at this time, 9 I'd like to mark as Walker Exhibit 1 a Google Map 10 photo of I-71. 11 (Respondent's Exhibit Walker 1 was marked 12 for identification.) 13 MR. PERKO: May I approach, Your Honor? 14 THE ATTORNEY EXAMINER: Very good. 15 BY MR. PERKO: 16 Q. Officer Holzworth, would you agree that 17 this is a photograph taken of southbound lanes on 18 I-71 near Milepost 176? 19 A. It's 71. In the photo, I can't discern 20 if it's north- or southbound. 21 Q. You were sitting at Milepost 179, 22 correct? 23 A. That's correct. 24 Q. And you testified that you pulled 25 Mr. Walker over around Milepost 176, correct? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 21 1 A. That's what's noted on the inspection 2 report, correct. 3 Q. Can I direct your attention to the 4 milepost marker in the photograph towards the 5 right-hand side? 6 A. 176. 7 Q. So it's true that the milepost 8 indicates Post 176 in the photograph, correct? 9 A. Yeah. That's what it looks like. 10 Q. And from the photograph, there's three 11 lanes of traffic, correct? 12 A. There's three lanes of travel, right. 13 Q. And although we cannot see directly the 14 median, you had been sitting in the median between 15 the northbound and southbound lanes, correct? 16 A. I would have been north of US 30. 17 Q. Just for orientation, from the 18 photograph, you would have been sitting in the 19 grassy area of the median. 20 A. Between the two lanes of travel. 21 Q. Between the two lanes. Thank you. 22 Isn't it true that Mr. Walker was traveling 23 in the rightmost lane at the time you first observed 24 his CMV? 25 A. I don't have it documented in my notes ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 22 1 section. Yeah, it's possible. He had to be in one 2 of the three lanes. 3 Q. So assuming Mr. Walker was in the 4 rightmost lane, if you were sitting in the median, 5 Mr. Walker's CMV would be in the lane furthest from 6 you, correct? 7 A. That would be correct. 8 Q. So at the point when Mr. Walker's CMV 9 passed directly in front of you, isn't it true that 10 you were at least four car lengths away from 11 Mr. Walker's CMV? 12 A. I would say it's approximately 35, 13 40 feet, somewhere in there. 14 Q. After you pulled Mr. Walker over, you 15 approached his CMV, correct? 16 A. That would be correct. 17 Q. And you approached the passenger side, 18 correct? 19 A. 90 percent of my stops are passenger 20 side. So I would say, yeah, that's probably 21 accurate. 22 Q. Do you have a specific recollection of 23 what side you approached from? 24 A. If I'm working 71, it's a passenger 25 side approach, period. There's no exceptions. But ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 23 1 if I'm on US 30, you know, it may depend on how they 2 stopped. 3 Q. But is that testimony based upon your 4 actual recollection of that morning? 5 A. Yes. I don't make driver's side 6 approaches on 71 ever. 7 Q. So that would be a no. It's based upon 8 your habits. 9 A. I made a passenger side approach on 10 this stop, yes, if that's what you're asking me. 11 Q. No, that wasn't what I was asking you. 12 I was asking you had -- 13 MR. LINDGREN: Objection. Asked and 14 answered. 15 MR. PERKO: Your Honor, I'm trying to 16 develop whether, if he approached, it was based upon 17 his actual recollection of the event or if it was 18 out of habit and his normal way of doing things. 19 THE ATTORNEY EXAMINER: So what's your 20 objection? 21 MR. PERKO: I didn't make the 22 objection, Your Honor. 23 THE ATTORNEY EXAMINER: What are you 24 telling me now? 25 MR. PERKO: That it's -- I'm trying to ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 24 1 establish whether it's his actual recollection of 2 the events that morning or if he is testifying based 3 upon his habits of how he normally goes about 4 inspecting vehicles and approaching them. 5 THE ATTORNEY EXAMINER: But did you ask 6 him that question? 7 MR. PERKO: Yes, Your Honor. 8 THE ATTORNEY EXAMINER: Okay. So -- 9 MR. PERKO: He didn't answer. There 10 was an objection, Your Honor. 11 THE WITNESS: No, I did answer it. I 12 stated I never make passenger side -- I mean I never 13 make driver's side approaches on 71. So, yes, I 14 made a passenger side approach and I do remember 15 because I don't make driver's side approaches on 71 16 ever. 17 BY MR. PERKO: 18 Q. I'll ask it a different way. Do you 19 recall -- 20 A. Yes. 21 Q. -- that morning -- 22 A. Yes. 23 Q. -- approaching from the passenger side? 24 A. I do. 25 Q. If standing on the ground, isn't it ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 25 1 true that you would not be able to view into the 2 window of Mr. Walker's CMV? 3 A. I didn't stop him viewing on the 4 ground. I can see -- I always have door open. Then 5 I'll get on the side of it -- 6 MR. PERKO: Your Honor, I would request 7 that he would listen to the question and answer the 8 question as asked. 9 BY MR. PERKO: 10 Q. The question as asked was: If you were 11 standing on the ground, would you be -- you would 12 not be able to view inside the tractor; is that 13 correct? 14 A. To a certain extent, you can see in 15 there because I can look straight into the driver's 16 rearview mirror or side mirrors, and it reflects 17 right into the truck. I never walk up. I always 18 look in the mirror and see -- so I can see them, see 19 what they're doing before I get close to the door 20 and open it. 21 So, yeah, you can see in there. Can you see 22 the entire cab inside of it? No. 23 Q. When you approached the passenger side 24 of Mr. Walker's CMV, you opened the door to the 25 tractor to view inside, correct? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 26 1 A. Did I open the door to view inside? 2 Q. To view inside. 3 A. I opened the door to conversate with 4 him so I could see what he's doing, so can hear him. 5 Do you know how loud it is on 71 with a tractor on? 6 You can't hear. 7 Q. But you did open the door. 8 A. Right, I did. The passenger side door. 9 Q. And you would agree that Mr. Walker was 10 sitting at least 7 feet off the ground. 11 A. That would be accurate, I guess. 12 Q. In your vehicle, a person would sit 13 much closer to the ground because it's more akin to 14 a personal vehicle, correct? 15 A. Tahoes sit up pretty good. Are you 16 asking if I saw in his cab? 17 Q. No. I'm asking -- in your vehicle, you 18 sit much lower to the ground. 19 A. Than a tractor? Oh, absolutely. 20 Q. So, when seated in your vehicle, you 21 would have to look upwards to view Mr. Walker in his 22 CMV. 23 A. Yeah. They sit up pretty high. 24 They're not hard to see. 25 Q. What was the posted speed limit for ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 27 1 CMVs of Mr. Walker's tractor size and class when you 2 observed him? 3 A. 70 mile an hour. 4 Q. And how fast was Mr. Walker traveling 5 when you first observed him? 6 A. No idea. I don't remember -- 7 Q. Would you agree he was traveling at 8 least 55 miles an hour? 9 A. No idea. We don't have radar. We 10 don't measure speed. 11 Q. But wouldn't you -- 12 MR. LINDGREN: Objection. He's already 13 testified that he doesn't know the speed of the 14 vehicle. 15 THE ATTORNEY EXAMINER: Let that stand 16 as his answer. Go on. 17 BY MR. PERKO: 18 Q. Mr. Holzworth -- Officer Holzworth, 19 excuse me -- from your vantage point in the median, 20 a southbound driver's left side is closest to you, 21 correct? 22 A. The fast lane of travel, yes, the left. 23 It would be the closest. 24 Q. So when a vehicle is directly in front 25 of you, you would only be able to see the driver's ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 28 1 left side. 2 A. Well, when they come down -- where I 3 sit at, they come down a hill. 4 Q. The question is -- 5 A. So I can see, when they're coming in, 6 through the windshield and the side window. 7 Q. When a driver is directly in front of 8 you -- you previously testified that you were -- may 9 have been perpendicular to the traffic. And when a 10 vehicle is directly in front of you, you would only 11 be able to see his left side; is that correct? 12 A. No. It's not correct because if 13 they're coming down a hill -- I'll give you an 14 example. Say this is a southbound lane right here 15 and I'm parked in the crossover like this. When 16 they come down the hill, I can see in the windshield 17 and the side window as they pass. So sometimes I'll 18 park like this, viewing traffic this way. Sometimes 19 I'll park like that. Sometimes I'll park like that. 20 But if I'm looking for violations for cell 21 phones, that's how I sit -- just like this -- so I 22 can see in the windshield and in the cab as they 23 pass. And it's a pretty unobstructed view. I mean, 24 they're sitting up in the air. 25 MR. PERKO: Your Honor, I move to ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 29 1 strike everything after "no" because the question 2 was specific when he was directly in front of him, 3 and the witness is testifying when he's down the 4 road. That wasn't my question. 5 THE ATTORNEY EXAMINER: I think he's 6 provided an answer. Go on to another question. 7 MR. PERKO: Thank you, Your Honor. 8 BY MR. PERKO: 9 Q. Officer Holzworth, I'd like you to 10 direct your attention back to Staff Exhibit 1. Do 11 you have a copy of that in front of you? 12 A. Yes, sir. 13 Q. Did you prepare this report? 14 A. Yes. 15 Q. Did you prepare the inspection notes in 16 the report? 17 A. I did. 18 Q. Do your notes state that "Driver was 19 holding his cell phone in his right hand"? 20 A. Do you want me to read it to you? What 21 it says? 22 Q. No. Does it state, though, that the 23 driver was holding a cell phone in his right hand? 24 A. It does. 25 Q. Upon pulling Mr. Walker over and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 30 1 approaching the cab of his tractor, did you inform 2 him that you were performing a Level III inspection? 3 A. I inform everybody I stop of what level 4 inspection because there's different levels of 5 inspection that we perform. 6 Q. When you made this approach, you opened 7 the door of his vehicle, Mr. Walker was not 8 communicating on his mobile phone; is that correct? 9 A. Not at the time. 10 Q. And at that same time, Mr. Walker was 11 also not holding his mobile phone; is that correct? 12 A. Not at the time, no. 13 Q. Isn't it true that, when you viewed 14 inside Mr. Walker's tractor, his phone was mounted 15 to the windshield by a docking device? 16 A. Well, anybody can take their phone it 17 and put it right up there. It only takes a second. 18 MR. PERKO: Move to strike. It's a yes 19 or no question, Your Honor. 20 THE WITNESS: I don't recall where it 21 was. 22 MR. PERKO: Your Honor, would you be 23 able to please just instruct the witness to speak up 24 a little louder so we can hear him better. 25 THE ATTORNEY EXAMINER: I need to speak ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 31 1 up? Is that what you -- 2 MR. PERKO: The witness. I'm pretty 3 far away. 4 THE ATTORNEY EXAMINER: Yeah. 5 Everybody's got to speak up in here. The acoustics 6 aren't real good. 7 THE WITNESS: Duly noted. 8 BY MR. PERKO: 9 Q. Is it also true that -- is it also true 10 that there was a charging cable plugged into 11 Mr. Walker's mobile phone mounted to his windshield? 12 A. There could have been. Like I said, I 13 don't recall the exact -- if he had it plugged into 14 an aux cord going to listen to the radio or if he 15 had a charger plugged into it. 16 Q. Officer Holzworth, are you familiar 17 with Bluetooth technology? 18 A. Absolutely. 19 Q. Are you aware that Bluetooth technology 20 permits certain devices to connect to a vehicle's 21 stereo? 22 A. Absolutely. 23 Q. And are you also aware that certain 24 vehicles utilize Bluetooth technology to wirelessly 25 connect to a mobile phone to allow users to ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 32 1 communicate on the phone without using their hands? 2 A. We have it in our vehicles. Yes, I'm 3 aware of it. And it doesn't work that great. 4 Q. Isn't it true that if -- 5 MR. PERKO: Your Honor, may I move to 6 strike the last comment that it does not work very 7 well from the record? 8 THE ATTORNEY EXAMINER: No. We'll let 9 it stand. 10 BY MR. PERKO: 11 Q. Isn't it true that if a phone is, in 12 fact, connected to a car stereo through the 13 Bluetooth, a person does not need to hold his phone 14 up to his or her face in order to hear and talk? 15 A. I'm not a Bluetooth professional. I 16 can't sit here and testify about Bluetooth 17 technology, but I've got the basics on it. Yeah, 18 that's how it operates. 19 Q. Have you ever used Bluetooth 20 technology? 21 A. Very -- not very often, but yeah. 22 Because it doesn't work that well. 23 Q. Have you ever used Bluetooth technology 24 to communicate on your mobile phone while driving 25 without holding your phone? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 33 1 A. I usually use the handheld phone 2 because I can't hear with the Bluetooth technology. 3 Q. Have you ever used the Bluetooth 4 technology in your vehicle? 5 A. Sitting stationary, yes. But if I'm 6 moving, no because I can't hear it. 7 Q. And when you are using it, are you 8 using it -- your mobile device -- excuse me. Let me 9 ask that question a different way. 10 When you're communicating on your mobile 11 phone through Bluetooth, are you able to do it 12 hands-free? 13 A. Yeah. That's -- that's part of the 14 technology so you don't have to hold it. 15 Q. Officer Holzworth, isn't it true that 16 Mr. Walker informed you that, while he was on the 17 phone prior to the traffic stop, the phone was 18 connected to his tractor stereo system? 19 A. I'm going to testify from what I wrote 20 down here. It stated that he was talking on his 21 phone when he passed me. It was plugged in through 22 his stereo system is what he said. 23 Q. Is it also true that Mr. Walker stated 24 that his phone was mounted to the windshield during 25 your conversation? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 34 1 A. He may have. I don't recall. 2 Q. Officer Holzworth, isn't it true that a 3 CMV operator is permitted to talk on his or her 4 phone while driving if they are not using their 5 hands to hold their phone? 6 A. That's correct. 7 Q. And isn't it true that the Commission 8 has also found -- in Case No. 16-846-TR-CVF, the 9 Commission found that conducting a conversation with 10 someone via a cell phone in a hands-free operating 11 mode is not listed as being prohibited under either 12 49 CFR 392.82, Section (a)(1), or 49 CFR 390.5? 13 MR. PERKO: Objection. The witness 14 isn't here to testify as to Commission precedent. 15 He hasn't testified that he's even familiar with the 16 Commission precedent. 17 THE ATTORNEY EXAMINER: Yeah, let's 18 limit our questions to this case. 19 BY MR. PERKO: 20 Q. Are you aware that the Commission 21 agrees with your prior understanding of the law that 22 it is okay to communicate on a mobile phone without 23 using your hands while driving? 24 A. Hands-free is -- yeah, it's permitted. 25 MR. PERKO: Your Honor, I have no ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 35 1 further questions. 2 THE ATTORNEY EXAMINER: Any? 3 MR. LINDGREN: Briefly, Your Honor. 4 - - - 5 REDIRECT EXAMINATION 6 BY MR. LINDGREN: 7 Q. Officer Holzworth, you testified that, 8 in your experience, the Bluetooth technology doesn't 9 work very well. Can you explain that? 10 A. We have Bluetooth in our patrol cars, 11 and we're encouraged to use it. But once you get on 12 the road, the wind sound muffles it. You can't 13 hear -- if somebody calls you from it and you're 14 moving, you can't hear them. You have to turn the 15 Bluetooth off and pick up your handheld phone. 16 Q. So is it still possible to pick up the 17 phone even though you have Bluetooth technology in 18 the vehicle? 19 A. Absolutely. 20 MR. LINDGREN: Thank you. I have no 21 further questions. 22 THE ATTORNEY EXAMINER: Any on recross? 23 MR. PERKO: Yes, Your Honor. One 24 moment, please. 25 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 36 1 RECROSS-EXAMINATION 2 BY MR. PERKO: 3 Q. Officer Holzworth, isn't it true, 4 though, that most people, when talking on their 5 phones -- or many people -- will use hands-free 6 mobile devices through Bluetooth technology? 7 A. I can't testify what many people do. 8 Q. And you cannot testify that, in those 9 same regards, that because it may be noisy, a person 10 would not use Bluetooth? That they would pull their 11 phone up? 12 A. Again, I can't testify whether other 13 people use Bluetooth technology or not. I can tell 14 you what I do. I can't tell you -- testify what 15 everybody else does with Bluetooth technology. 16 Q. And you're giving your personal opinion 17 from your personal experiences, not other people's 18 experiences, correct? 19 A. No. That would be everybody, mostly, 20 that we work with on Bluetooth technology that -- 21 MR. PERKO: Objection. It's hearsay. 22 He's speaking to what other people do, and they're 23 not here. He's -- 24 THE WITNESS: And you just asked me 25 what other people do. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 37 1 MR. LINDGREN: Yeah, he's asking about 2 other people's experiences. 3 THE ATTORNEY EXAMINER: We'll let his 4 testimony stand. 5 BY MR. PERKO: 6 Q. Officer, I just have an additional 7 question. Are you speaking from your own, personal 8 experiences? 9 A. With Bluetooth technology, I'm speaking 10 from people that I know as well as my own that have 11 used it do not like it because they cannot hear once 12 the vehicle is moving. That's what I'm testifying 13 to. 14 MR. PERKO: Your Honor, again, I move 15 to strike the other people's opinions. They're not 16 here to testify. He's speaking on behalf of other 17 people -- what they would do and why they would do 18 it. 19 THE ATTORNEY EXAMINER: Motion denied. 20 Do you have any other questions? 21 BY MR. PERKO: 22 Q. Officer Holzworth, do you know if I use 23 Bluetooth technology? 24 A. Really? How do I know what you do? I 25 don't know you. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 38 1 Q. Is that a "yes" -- so that would be 2 "no"; is that correct? 3 A. Do you know if I use Bluetooth 4 technology? 5 Q. You just told me that you don't. The 6 question is -- 7 A. Sitting stationary, I told you that I 8 do. So I don't know. I don't know if you use 9 Bluetooth. 10 MR. PERKO: No further questions, Your 11 Honor. 12 THE ATTORNEY EXAMINER: You're excused. 13 (Witness excused.) 14 THE ATTORNEY EXAMINER: Do you have any 15 other witnesses? 16 MR. LINDGREN: Your Honor, Mr. Perko 17 and I have agreed to stipulate that, if the 18 Commission finds the violation occurred, that the 19 amount of forfeiture of $250 was correctly 20 calculated. 21 So in lieu of calling a witness, I will 22 just offer into evidence the notice of preliminary 23 determination issued to the respondent, Andrew P. 24 Walker. I have marked this document as Staff 25 Exhibit 2. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 39 1 Your Honor, at this time, I would move for 2 the admission of Staff Exhibits 1 and 2, and I rest 3 my case. 4 THE ATTORNEY EXAMINER: Very good. 5 I'll admit those exhibits into evidence. 6 MR. LINDGREN: No objections. 7 (Exhibits admitted into evidence.) 8 THE ATTORNEY EXAMINER: Are we done 9 with Staff? 10 MR. LINDGREN: No, Your Honor. I'm not 11 calling any further witnesses. I rest. 12 THE ATTORNEY EXAMINER: Okay. Let's go 13 to the respondent. 14 MR. PERKO: Your Honor, may we go off 15 the record for a minute, please. 16 THE ATTORNEY EXAMINER: We may. 17 (Discussion off the record.) 18 MR. PERKO: Your Honor, I'd just like 19 to clarify that the parties agree that the admission 20 of Staff Exhibit 2 is just for the forfeiture 21 amount, not an admission as to the violation, 22 CFR 392.82(a)(1). 23 THE ATTORNEY EXAMINER: Very good. 24 MR. LINDGREN: I would also like to 25 just add that -- can we also stipulate that this ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 40 1 notice was sent to the respondent, Mr. Walker? 2 MR. PERKO: We'll stipulate to it -- 3 that it was received. 4 MR. LINDGREN: Thank you. 5 MR. PERKO: Your Honor, may we call our 6 witness? 7 THE ATTORNEY EXAMINER: Yes. 8 MR. PERKO: We call Andrew P. Walker. 9 (Witness sworn.) 10 THE ATTORNEY EXAMINER: Be seated. 11 MR. PERKO: Your Honor, a preliminary 12 matter: May I move to admit Exhibit Walker 1 into 13 evidence? That was the photograph of I-71, the 14 Google Maps photo. 15 THE ATTORNEY EXAMINER: Do you have any 16 other exhibits? 17 MR. PERKO: Yes, Your Honor. There 18 will be additional exhibits for this witness but not 19 for Officer Holzworth. 20 THE ATTORNEY EXAMINER: Yeah, we can do 21 that. Go ahead. 22 - - - 23 ANDREW P. WALKER, 24 called as a witness, being first duly sworn, 25 testified as follows: ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 41 1 DIRECT EXAMINATION 2 BY MR. PERKO: 3 Q. Please state your name and address for 4 the record, please. 5 A. Andrew Perry Walker, 107 Robert Avenue, 6 White House, Tennessee 37188. 7 Q. What do you do for a living, 8 Mr. Walker? 9 A. Commercial truck driving. 10 Q. Do you have a commercial driver's 11 license? CDL license? 12 A. Yes. 13 Q. And who are you employed by? 14 A. I'm self-employed at Apex Connect, Inc. 15 We are leased contractors to Baylor Trucking, 16 Incorporated. 17 Q. What are your basic duties for Baylor 18 Trucking? 19 A. I pick up and deliver their freight. 20 Q. And how long have you been a CDL driver 21 for Baylor Trucking? 22 A. About four years. 23 Q. And what type of vehicle do you drive? 24 A. A 2016 Volvo 780, Class 8. 25 Q. What type of vehicle were you driving ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 42 1 on September 6, 2016? 2 A. A 2016 Volvo 780, Class 8. 3 Q. From here, I'll refer to that vehicle 4 as the "Volvo tractor." 5 A. Okay. 6 Q. Let's discuss the equipment in your 7 Volvo tractor's main cabin. What are some main 8 types of equipment or features that the tractor has? 9 A. CB radio, navigation, standard stereo, 10 AM/FM radio, XM radio, et cetera. 11 Q. Can you describe the features of the 12 radio? 13 A. It has a USB port for direct 14 connectivity. It also has Bluetooth for wireless 15 connectivity, XM radio, CD player. 16 Q. Can you describe the Bluetooth 17 technology in that stereo in the Volvo tractor's 18 main cabin? 19 A. You connect via Bluetooth once, and the 20 truck automatically will connect every time you get 21 in it and the connected device is within proximity 22 to the stereo. So I connected it when I got it, and 23 it connected every time I turned it on. 24 Q. What year is your -- is the tractor? 25 A. 2016. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 43 1 Q. What kind of communication devices, if 2 any, do you have with you while you operate your 3 Volvo tractor? 4 A. My cell phone is with me wherever I go, 5 and the CB radio is also in the truck. 6 Q. When you're in your Volvo tractor, 7 where is your mobile phone located? 8 A. On a dock that is mounted to the 9 windshield. 10 Q. And does the Volvo tractor's 11 Bluetooth-equipped stereo allow you to link your 12 mobile phone with the tractor's stereo system? 13 A. Yes. 14 Q. Can you please describe how you 15 specifically utilized Bluetooth technology in the 16 radio to communicate on your mobile phone? 17 A. If I receive a call, I typically will 18 push the button on the stereo that will accept the 19 call, and it will begin. If I need to place a call, 20 I can use Google Assistant to call anyone in my 21 phonebook or anyone that Google has on record. 22 Q. If I were talking with you and I end 23 the call, is there any function that you have to do? 24 A. No. 25 Q. So the call will end automatically. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 44 1 A. Correct. 2 Q. Does this system -- does Bluetooth 3 technology allow you to communicate on your mobile 4 phone hands-free? 5 A. Yes. 6 Q. Do you recall the events of 7 September 6, 2016, between approximately 7:20 and 8 8:00 a.m.? 9 A. Yes. 10 Q. Can you please describe those events? 11 A. I was traveling southbound on 12 Interstate 70 [sic]. I received a call. The call 13 was connected via Bluetooth. The phone was mounted 14 in the windshield. I saw Officer Holzman [sic] -- 15 or I saw his vehicle in the median a good distance 16 before I crossed his path. 17 After I passed him, he pulled out into the 18 median -- or he pulled out onto the southbound side, 19 which is common for me to see. And when he 20 approached my vehicle, I was surprised that I was 21 the one he was pulling over. And I then pulled 22 over, came to a complete stop. 23 He approached the vehicle on the passenger 24 side. He opened the door and informed me that he 25 was going to perform a Level III inspection and ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 45 1 asked for the appropriate documents, and I gave them 2 to him. After that, he informed me that he stopped 3 me because he saw me holding my cell phone in my 4 hand. 5 Q. And just for clarification, what road 6 were you traveling on? 7 A. Interstate 71 south. 8 Q. At approximately what time did you see 9 Officer Holzworth? 10 A. Approximately 7:20. 11 Q. Did you see Officer Holzworth in the 12 median prior to him pulling you over? 13 A. Yes. 14 Q. Mr. Walker, how many lanes of traffic 15 are there in this section of I-71 when you were 16 pulled over? 17 A. On the southbound side, there are three 18 lanes. 19 Q. In what lane of travel were you 20 traveling in? 21 A. The far right lane. 22 Q. Where is this lane in relation to the 23 median? 24 A. It would be the furthest lane from the 25 median. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 46 1 Q. At any time shortly before or after 2 seeing Officer Holzworth, did you switch lanes? 3 A. No. 4 Q. And what were you doing when you saw 5 Officer Holzworth? 6 A. Driving, and I was on a phone call. 7 Q. As you previously described your Volvo 8 tractor's Bluetooth equipment, was your phone 9 connected to your tractor's stereo using Bluetooth 10 technology at that time? 11 A. Yes. 12 Q. Just for clarification, on the morning 13 of September 6, 2016, between 7:20 and 8:00 a.m.? 14 A. Yes. 15 Q. Was your mobile phone physically -- 16 excuse me. 17 Where was your mobile phone physically 18 located in the cab of the Volvo tractor at that 19 time? 20 A. In the dock attached to the windshield. 21 Q. Was anything connected to your mobile 22 phone when it was docked and attached to the 23 tractor's windshield? 24 A. The power cord that keeps it 25 100 percent. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 47 1 Q. After Officer Holzworth pulled you over 2 and approached your tractor, what happened after 3 that? 4 A. He opened the passenger door, informed 5 me he was performing a Level III inspection, took my 6 paperwork. Then he informed me that he stopped me 7 for holding a handheld device. 8 I told him I wasn't holding the device. I 9 didn't need to hold the device. It was connected to 10 the stereo, and there was no point for me to hold 11 it. 12 He then asked me if he -- if what I meant 13 was that I was using speakerphone. 14 And I clarified that, no, the phone is 15 connected to the stereo in the truck. The audio 16 comes through the speakers of the truck, and there's 17 a microphone that hears me which is also part of the 18 truck. 19 He then took my paperwork back to his patrol 20 vehicle, completed the inspection, and returned to 21 give me the violation report which documented the 22 violation of holding the handheld device. 23 MR. PERKO: Your Honor, I'd like to 24 mark two exhibits as Walker Exhibit 2 and Walker 25 Exhibit 3. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 48 1 (Respondent's Exhibits Walker 2 and 2 Walker 3 were marked for identification.) 3 MR. PERKO: Your Honor, may I approach? 4 THE ATTORNEY EXAMINER: You may. 5 MR. PERKO: Your Honor, these are 6 pictures exhibiting the inside of the 2016 Volvo. 7 Exhibit 2 -- for the record, Exhibit 2 is a 8 photograph of the inside of the 2016 tractor, and 9 Exhibit 3 is a different perspective of the view of 10 the inside of the 2016 Volvo tractor. 11 BY MR. PERKO: 12 Q. Mr. Walker, can you identify these 13 exhibits? 14 A. Yes. What do you want me -- 15 Q. Mr. Walker, what do these images 16 depict? 17 Let me clarify. Let's start with Walker 18 Exhibit 2 -- 19 A. That one? 20 Q. -- which is a picture of the inside of 21 the tractor. 22 A. Okay. 23 Q. Can you explain what this image 24 depicts? 25 A. Specifically, it depicts the phone ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 49 1 being mounted in the window and the power cord 2 running to the plug, which is hard to see because 3 it's black, but it's feeding into a DC port 4 underneath the cup holder to the far right. 5 Q. And can you describe what Image 3 6 depicts? 7 A. The relation of the phone on the mount 8 and me holding the wheel. 9 Q. Do these pictures adequately depict the 10 inside of the cab of the Volvo tractor you were 11 driving on September 6, 2016? 12 A. Yes. 13 Q. And going back to that date, prior to 14 being pulled over by Officer Holzworth, you stated 15 that you were on the phone, correct? 16 A. Yes. 17 Q. And that mobile phone was mounted to 18 the windshield of your tractor, correct? 19 A. Yes. 20 Q. Was it mounted in substantially the 21 same manner as depicted in Walker Exhibit 3 and 22 Walker Exhibit 2? 23 A. Yes. 24 Q. And on that same date, was the power 25 cord also plugged into your mobile phone in ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 50 1 substantially the same manner as depicted in Walker 2 Exhibit 2 and Walker Exhibit 3? 3 A. Yes. 4 MR. PERKO: Your Honor, may I approach 5 to give the witness a copy of Staff Exhibit 1? 6 THE ATTORNEY EXAMINER: You may. 7 BY MR. PERKO: 8 Q. Did you inform Officer Holzworth that 9 your tractor was equipped with Bluetooth technology? 10 A. Yes. 11 Q. And just to be clear, where was your 12 phone before being pulled over by Officer Holzworth? 13 A. On the dock -- in the dock mounted to 14 the windshield. 15 Q. So you were not holding it. 16 A. Correct. 17 Q. Could you please read on Staff 18 Exhibit 1, under the inspection notes, the last 19 sentence, please. 20 A. "Driver stated he was talking on his 21 phone when he passed me. It was plugged in through 22 his stereo system." 23 Q. Is that correct that you informed him? 24 A. I did inform him, although there is 25 some confusion about how it was connected. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 51 1 Q. Could you please explain that 2 confusion? 3 A. Bluetooth is a wireless connection. I 4 don't need to plug it into the stereo, and it's 5 stated on the report that it's plugged in. It 6 wasn't plugged into the stereo. It was plugged into 7 a power supply, which is the cigarette lighter. 8 Q. And around the time that you first saw 9 Officer Holzworth, you were communicating on the 10 phone using the Volvo tractor's Bluetooth equipment? 11 A. Yes. 12 Q. And did this allow to you communicate 13 on your phone hands-free? 14 A. Yes. 15 Q. When you saw Officer Holzworth pull out 16 into the median and indicate to pull you over, what 17 did you do regarding the phone call you were on? 18 A. I informed them that I was being 19 stopped and that I would need to end the call. They 20 hung up, and the call disconnected. 21 Q. Did you have to do anything to end the 22 call? 23 A. No, not physically, other than tell 24 them I needed to. 25 Q. You heard Officer Holzworth testify ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 52 1 that his Bluetooth does not work very well. Does 2 yours work well? 3 A. Excellent. It's the perfect mechanism 4 to allow drivers to communicate and operate the 5 vehicle safely. 6 Q. Do you have any problem hearing and 7 talking through the Bluetooth connectivity on the 8 highway? 9 A. No. It's as loud as any music. I can 10 crank it all the way up. It can become -- it can 11 drown me out if I turn it up loud enough. 12 Q. Do you use the Bluetooth technology in 13 your personal vehicle? 14 A. As rarely as I get to drive it, yeah. 15 Q. Does it also work well in your personal 16 vehicle? 17 A. Yes. 18 Q. Can you hear and speak clearly using 19 the Bluetooth technology in your personal vehicle? 20 A. Yes. I'm quite fond of the technology. 21 I use it whenever I can. 22 Q. And for just clarification, in your 23 personal vehicle, it does not require you to use 24 your hands to talk and communicate. 25 A. Correct. It operates the same way. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 53 1 Q. So do you agree with Officer Holzworth 2 that the technology is not useful? 3 A. I do not agree. It's integral to 4 operating the vehicle safely and communicating with 5 people. 6 MR. PERKO: I have no further 7 questions, Your Honor. 8 THE ATTORNEY EXAMINER: Does Staff have 9 any questions? 10 MR. LINDGREN: Briefly, Your Honor. 11 - - - 12 CROSS-EXAMINATION 13 BY MR. LINDGREN: 14 Q. Mr. Walker, as shown on these 15 Exhibits 2 and 3, the phone was within reach while 16 you were behind the wheel; is that correct? 17 A. If I leaned forward, I could reach it, 18 yes. 19 Q. And it is possible for you to pick up 20 the phone and use it even though your vehicle is 21 equipped with Bluetooth technology, isn't it? 22 A. It is possible. 23 Q. Thank you. And you testified that you 24 were on a phone call immediately prior to being 25 pulled over by Officer Holzworth; isn't that true? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 54 1 A. Yes. 2 Q. Thank you. When you're operating your 3 vehicle at interstate speed, there's a lot of noise 4 in the cab, isn't there? 5 A. Volvo is very good at eliminating that 6 excess noise. It's my favorite truck. 7 Q. Well, it's not as quiet as it is in 8 this room, though, is it? 9 A. With the sirens going on outside? It's 10 not that different. I mean, Volvo's the best. 11 They're good at that. They make life comfortable 12 for people who live on the road. 13 Q. Thank you. Mr. Walker, does your 14 employer have any disciplinary policy for safety 15 violations? 16 A. I mean, there's a wide range of them, 17 and the disciplines vary. 18 Q. If you were to be found to have 19 committed this violation, could you potentially face 20 disciplinary action from your employer? 21 MR. PERKO: Objection for relevance, 22 the grounds of these questions as they lead to the 23 facts in this case -- whether he would or not be 24 disciplined. 25 MR. LINDGREN: It goes to credibility. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 55 1 THE ATTORNEY EXAMINER: Let him answer 2 the question. 3 THE RESPONDENT: Can you repeat the 4 question? 5 BY MR. LINDGREN: 6 Q. If you were to be found to have 7 committed this violation, would you possibly face 8 disciplinary action from your employer? 9 A. They haven't expressed to me what the 10 disciplinary action would be, but there is a 11 consequence to them for me getting this violation, 12 which they would not be happy with. What their 13 discipline would be, I do not know. 14 MR. LINDGREN: Thank you. 15 I have no further questions. 16 THE ATTORNEY EXAMINER: Do you have any 17 on redirect? 18 MR. PERKO: A few follow-up questions, 19 Your Honor. 20 - - - 21 REDIRECT EXAMINATION 22 BY MR. PERKO: 23 Q. Prior to being pulled over by Officer 24 Holzworth, was your phone mounted to its docking 25 station in substantially the same manner as Walker ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 56 1 Exhibit 2 and Walker Exhibit 3? 2 A. Yes. 3 Q. At any time prior to being pulled over 4 and viewing Mr. Holzworth, did you ever pick up your 5 phone? 6 A. No. 7 Q. Mr. Walker, are you aware that the 8 Public Utilities Commission, in Case 9 No. 16-846-TR-CVF, has found that it is lawful to 10 use a cell phone in a hands-free operating mode and 11 it is not in violation of 49 CFR 392.82, 12 Section (a)(1), or 49 CFR 390.5? 13 MR. LINDGREN: Objection. This calls 14 for a legal conclusion. 15 THE ATTORNEY EXAMINER: Didn't we have 16 this question before? 17 MR. PERKO: I just asked if he's aware 18 of it, Your Honor. 19 THE ATTORNEY EXAMINER: Are you aware 20 of any previous cases from this Commission? 21 THE RESPONDENT: Yes. 22 THE ATTORNEY EXAMINER: Okay. So 23 you're aware of what he said? 24 THE RESPONDENT: Yes. 25 THE ATTORNEY EXAMINER: There's your ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 57 1 answer. 2 BY MR. PERKO: 3 Q. And it's your understanding that you 4 are allowed to talk hands-free on your mobile phone 5 while driving? 6 A. Yes. 7 MR. PERKO: I have no further 8 questions, Your Honor. 9 THE ATTORNEY EXAMINER: Do you have any 10 on recross? 11 MR. LINDGREN: None, Your Honor. 12 THE ATTORNEY EXAMINER: You're excused. 13 (Witness excused.) 14 MR. PERKO: Your Honor, at this time, 15 I'd like to move to admit exhibits Walker Exhibit 2 16 and Walker Exhibit 3. 17 THE ATTORNEY EXAMINER: Very good. 18 I'll admit those into evidence at this time. 19 MR. PERKO: And if there's any 20 confusion, Walker Exhibit 1. 21 THE ATTORNEY EXAMINER: As well as 22 Walker Exhibit 1. 23 (Exhibits admitted into evidence.) 24 MR. PERKO: Thank you, Your Honor. 25 THE ATTORNEY EXAMINER: Is there ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 58 1 anything else today? 2 MR. PERKO: Nothing further, Your 3 Honor. 4 THE ATTORNEY EXAMINER: Let's go off 5 the record briefly. 6 (Discussion off the record.) 7 THE ATTORNEY EXAMINER: Back on the 8 record. 9 Is there anything else to add today from 10 either side? Nothing? 11 MR. LINDGREN: Nothing, Your Honor. 12 MR. PERKO: I don't believe so, Your 13 Honor. 14 THE ATTORNEY EXAMINER: Okay. I'll 15 consider this case submitted on the record, then. 16 Thank you. 17 (Thereupon, the hearing was concluded at 18 2:30 p.m.) 19 - - - 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 59 1 CERTIFICATE 2 I do hereby certify that the foregoing 3 is a true and correct transcript of the proceedings 4 taken by me in this matter on Thursday, June 29, 5 2017, and carefully compared with my original 6 stenographic notes. 7 8 ___________________________ 9 Heather A. Piper, Registered Professional Reporter and 10 Notary Public in and for the State of Ohio. 11 12 13 My commission expires October 29, 2020. 14 15 16 17 18 19 20 21 22 23 24 25 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481