1 1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of Jaroslaw : Engelbardt, Notice of : Case No. 07-1141-TR-CVF 4 Apparent Violation and : Intent to Assess Forfeiture : 5 - - - 6 PROCEEDINGS 7 Before James M. Lynn, Esq., Hearing Examiner, at the 8 Public Utilities Commission of Ohio, 180 East Broad 9 Street, Room 11-G, Columbus, Ohio, called at 10:10 a.m. 10 on Monday, April 7, 2008. 11 - - - 12 13 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 Marc Dann, Ohio Attorney General By John H. Jones, Esq. 3 Sarah J. Parrot, Esq. Assistant Attorney Generals 4 180 East Broad Street, 9th Floor Columbus, Ohio 43215-3793 5 On behalf of the Staff of the PUCO. 6 Jaroslaw Engelbardt 7 2608 Ramon Drive Blakeslee, Pennsylvania 18610 8 Pro se. 9 - - - 10 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 WITNESSES PAGE 4 OFFICER FRANK BENETT Direct Examination by Mr. Jones 5 5 Examination by The Hearing Examiner 31 Redirect Examination by Mr. Jones 32 6 JOHN J. CANTY 7 Direct Examination by Mr. Jones 34 8 JAROSLAW ENGELBARDT Direct Testimony by Mr. Engelbardt 43 9 Cross-Examination by Mr. Jones 45 Examination by The Hearing Examiner 56 10 - - - 11 STAFF EXHIBITS ID'D REC'D 12 1 - Driver/Vehicle Examination Report, 8 30 13 OH0775002893 14 2 - Driver/Vehicle Examination Report, 23 30 OH0775002894 15 3 - Fine Schedule 36 43 16 4 - Notice of Apparent Violation and 40 43 17 Intent to Assess Forfeiture, 12/8/06 18 5 - Notice of Preliminary Determination, 41 43 7/20/07 19 20 21 22 23 24 Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 4 1 Monday Morning Session, 2 April 7, 2008. 3 - - - 4 THE HEARING EXAMINER: Let's go on the 5 record, please. The Public Utilities Commission of 6 Ohio has assigned for hearing at this time and place 7 Case No. 07-1141-TR-CVF in the matter of Jaroslaw 8 Engelbardt, Notice of Apparent Violation and Intent to 9 Assess Forfeiture. At this time, we'll have 10 appearances of counsel on behalf of the Ohio Attorney 11 General's Office. 12 MR. JONES: Thank you, Your Honor. Good 13 morning. On behalf of the Transportation Staff of the 14 Public Utilities Commission of Ohio, Ohio Attorney 15 General Marc Dann, Sarah Parrot, John Jones, Assistant 16 Attorney General, 180 East Broad Street, Columbus, Ohio 17 43215. 18 THE HEARING EXAMINER: Thank you. And 19 representing Mr. Engelbardt, if you'd like to stand and 20 state your name and address and so forth. If you'd 21 state your name, please. 22 MR. ENGELBARDT: Jaroslaw Engelbardt. 23 THE HEARING EXAMINER: And your address, 24 sir? Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 5 1 MR. ENGELBARDT: 2608 Ramon Drive, 2 Blakeslee, Pennsylvania. 3 THE HEARING EXAMINER: Thank you very 4 much. Take your seat. 5 Mr. Jones, are you ready to proceed? 6 MR. JONES: Yes, Your Honor. We'd like to 7 call Officer Frank Benett to the stand, please. 8 THE HEARING EXAMINER: Officer Benett, 9 raise your right hand. 10 OFFICER FRANK BENETT, 11 being by The Hearing Examiner first duly sworn, as 12 hereinafter certified, testifies and says as follows: 13 THE HEARING EXAMINER: Thank you. Please 14 take your seat. 15 DIRECT EXAMINATION 16 By Mr. Jones: 17 Q. Could you please state your name for the 18 record, please. 19 A. Frank Benett, B-e-n-e-t-t. 20 Q. And where are you employed? 21 A. I'm employed with the State of Ohio, 22 Department of Public Safety Division, State Highway 23 Patrol. 24 Q. What is your job title and your job Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 6 1 duties? 2 A. I'm a motor carrier trooper assigned to 3 licensing and commercial standards out of the Berea 4 district. 5 Q. How long have you been so employed? 6 A. I've been a state trooper for 28 years, 7 and I've been in Licensing and Commercial Standards for 8 approximately 10 years. 9 Q. What training and certifications have you 10 received to hold your position? 11 A. Original training out of Patrol Academy to 12 become a trooper was in 1980, thirteen and a half weeks 13 to become a state trooper, then every year in-service 14 training, sometimes a week, sometimes two days, 15 sometimes three. For motor carrier officer, I went 16 through six weeks of training, and then we have our 17 monthly training that we go through, and, again, once a 18 year we come down to Columbus for an in-service. 19 Q. And is part of that training concerning 20 the Federal Motor Carrier Safety Regulations, being 21 familiar with the code of regulations? 22 A. Yes, sir. 23 Q. And your area that you're responsible for 24 patrolling in your capacity as an officer with the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 7 1 State Highway Patrol, what district are you assigned 2 to? 3 A. I'm assigned to the 10th District out of 4 Berea, and the area that I patrol is from Cuyahoga 5 County on the Ohio Turnpike east to the Pennsylvania 6 state line, and it encompasses about seven different 7 counties. 8 Q. What equipment is issued to you to perform 9 your duties? 10 A. Obviously, the uniform that I'm wearing 11 now. They also give me a patrol cruiser that is 12 marked, and it has the lights, and the highway patrol 13 insignia is on there, a laptop computer that is 14 programed for the ASPEN inspection, which is the 15 program that we use, as well as the MARKS radio system 16 so we have access to people's driver's license and 17 records. 18 Q. When you do an inspection of a commercial 19 motor vehicle, do you generate any reports as a result 20 of those inspections? 21 A. Yes, sir. There is a computer program 22 that we have, and everything is typed into the 23 computer. Then a report is printed out. 24 Q. I have what's before you marked as Staff Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 8 1 Exhibit 1. Would you please identify that document for 2 the record, please? 3 A. Yes, sir. This is a copy of the motor 4 carrier inspection that I did on the day in question. 5 Q. Okay. On the date of October 25th, 2006, 6 did you have contact with the driver by the name of 7 Jaroslaw Engelbardt? 8 A. Yes, sir. I was working that day six in 9 the morning till two p.m., in the afternoon. I was 10 patrolling on the Ohio Turnpike and doing my functions 11 for the Highway Patrol, and I did come in contact with 12 the gentleman. 13 Q. Do you remember the nature of why that 14 vehicle came to your attention for this inspection? 15 A. Originally I stopped the vehicle for 16 violating the speed limit and also for following too 17 closely, two traffic violations. That was the original 18 reason why I stopped him. 19 Q. Could you walk us through, then, at the 20 time after you stopped this driver and commercial motor 21 vehicle, what transpired from that point? 22 A. Yes, sir. If I may, I will be referring 23 to my notes to just keep my memory refreshed. 24 Q. Sure. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 9 1 A. I stopped the vehicle for the two traffic 2 violations. It was at Mile Post 190 westbound on 3 Interstate 80, which is in Portage County, activated 4 the emergency lights, pulled the vehicle over in a safe 5 location, and we do cautiously approach the vehicle to 6 converse with the driver. On conversing with the 7 driver, we tell him why he was stopped, ask for 8 identification, I'll need a driver's license, medical 9 card, so we then can identify the driver, compare the 10 picture, ask the information that is on the driver's 11 license, just so I can make sure that this is the same 12 person. I was satisfied that the person who presented 13 me the driver's license was, in fact, the person that I 14 had. 15 Q. Okay. Very good. Now, I want to direct 16 your attention to the top of Staff Exhibit 1 and have 17 you tell us where that report number came from that's 18 listed in the right-hand corner. 19 A. The report numbers are generated by the 20 ASPEN program, the computer system itself. The number 21 is my number that's been assigned to me by Licensing 22 and Commercial Standards. The OH is for Ohio. The 23 0775 is what we call a unit number. That's how the 24 Highway Patrol identifies me. Then the numbers to the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 10 1 right of that are the report numbers. Obviously, they 2 go up as each report I do. 3 Q. I see here the time started information. 4 What's that refer to? 5 A. The start time is the time that I actually 6 started the inspection. The end time is the time that 7 the inspection was over with. 8 Q. So this inspection started at 7:20 and 9 ended at 8:20; is that correct? 10 A. That is correct, yes. 11 Q. Okay. Could you tell us about the 12 inspection level? 13 A. The first inspection was a Level 2 14 inspection. We have many different levels. The top 15 three that we use, no pun intended, is Level 1, Level 16 2, and Level 3. A Level 3 inspection is when you just 17 check the driver credentials, driver's license, medical 18 card, logbook, also check the vehicle credentials, 19 whether the vehicle is still actively registered with 20 the PUCO, with the DOT, registration, any insurance 21 cards that he or she may still need. A Level 2 22 inspection encompasses all of that, but includes a 23 walkaround of the vehicle. You're actually physically 24 inspecting the vehicle as you walk around it to make Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 11 1 sure that all the side marker lamps, rear tail lamps, 2 horn, wipes, it has a fire extinguisher, safety -- and 3 then, of course, the tires to make sure all of those do 4 function. A Level 1, that's what we call the big 5 inspection. That's when we actually pull out the 6 creeper. We get inside the trailers, get on top of the 7 trailer and get underneath the truck, check all the 8 brakes, all the suspension components, check the frame 9 of the vehicle, check the exhaust system very 10 carefully; so that's an inspection we actually do. 11 Q. Okay. Now, the next block of information 12 on the first page of Staff Exhibit 1 looks like there's 13 information there pertaining to a driver, to the 14 right-hand side, and then a business name and 15 information on the left-hand side. Could you tell us 16 where you got that information from? 17 A. What we do, we take the DOT or the MC 18 number, motor carrier number, on the side of the 19 commercial motor vehicle. We compare that to the 20 papers that the driver has in his possession for the 21 company. We type that into the computer, enter it into 22 the program, and it will tell us what the company's 23 name, address, and phone number is. We again compare 24 that to the information that the driver has and, in Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 12 1 fact, ask the driver who are you driving for. He or 2 she will tell us. If all three are the same, that's 3 secure. 4 Q. That's what you followed for gathering 5 this information for this report, for Staff Exhibit 1? 6 A. Yes, sir. 7 Q. Okay. And the next block of information, 8 that pertains to the location of the inspection; is 9 that correct? 10 A. Yes, sir, it is. 11 Q. Where did you get the information as to 12 origin and destination for this driver? 13 A. Part of the inspection when you check the 14 vehicle credentials is also you ask for any shipping 15 papers or manifest pertaining to the load. The 16 information that I got from this, the origin being 17 Buenos Aires, was on the shipping papers itself. It 18 was an intermodal container that came in from 19 overseas. 20 Q. Then the next block of information, you 21 have there vehicle identification. What information is 22 contained in that block? 23 A. It lists the -- this was a tractor and 24 trailer combination, meaning a semi vehicle. The Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 13 1 information there lists the type of vehicle it was. 2 Under type TT, it stands for tractor-trailer. Then it 3 gives the vehicle make. Obviously, that's an 4 abbreviation, the year, the plate -- I'm sorry, the 5 state that the license plate was registered to as well 6 as the plate number. The company number, there's a 7 unit number that the company has assigned to the 8 vehicle, then the vehicle identification number. 9 Q. Now, if you'll refer to the block that is 10 title violations and go through what's noted for that 11 part of the report? 12 A. Okay. What's noted there, you would list 13 any driver violations. Under unit, a D would indicate 14 driver violation. A one indicates Unit 1, which would 15 be the tractor-trailer, and -- I'm sorry, would be the 16 tractor, and No. 2 would be the trailer, if the tractor 17 was actually pulling something, which in this case it 18 was. That would be Unit No. 2. An OOS to the right of 19 that stands for out of service. If the violation 20 determined by the PUCO or the Federal Motor Carrier is 21 so serious that it is perceived to be an out-of-service 22 violation, there would be a Y there, indicating for 23 yes. If it's not a violation as determined by the 24 PUCO, there is an N there, indicating no. Skipping Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 14 1 back, if I may, and I apologize, where the section 2 codes are at, those are all the federal codes listed 3 for what the violations are numerically. 4 Q. Further, to the right, it has information 5 as to description of the violation, and there's notes 6 that are provided there as well corresponding to the 7 section codes? 8 A. Yes, sir. Where it says violation 9 discovered is you are actually listing, printing, if 10 you will, what the violation was. In this case, on 11 this particular report, one of the driver violations 12 was speeding; so that is listed there. The gentleman 13 was not issued any citation for that at this time. He 14 was just given a warning. The next driver violation on 15 this particular report was for following too closely. 16 I did issue him a traffic citation for that. It's 17 listed under the citation number, that he was given a 18 citation to appear in court on that. 19 Q. And all that information is contained 20 there? 21 A. Yes, sir, under violations discovered. 22 Q. Then further, from your inspection at this 23 time of this driver and the commercial motor vehicle, 24 what other violations were noted from the inspection? Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 15 1 A. One of the things that we always ask the 2 driver for after obtaining the shipping papers, et 3 cetera, is asking for his logbook. We ask him where he 4 picked up the load at, because I'm sure in this case 5 this gentleman did not pick it up from overseas, but he 6 picked it up from Maryland; so, in that case, anytime 7 it's over 100 air miles or 150 statute miles, the 8 gentleman is required to have a logbook. In this case 9 he was required to have a logbook. He did present me 10 with one when asked, and in checking his logbooks -- 11 you have to keep today's log and the previous seven 12 days. He did not have the previous seven days of logs. 13 He was missing logs for the 23rd, 24th, 25th of 14 October, 2006. 15 Q. And as a result of Mr. Engelbardt not 16 having those logs, was he placed out of service? 17 A. Yes, sir. I checked the out-of-service 18 criteria, which we do for any out-of-service violation, 19 and it says he was to be placed out of service, and so, 20 yes, I did place the gentleman out of service for ten 21 consecutive hours. 22 Q. Looking further down the form here, I see 23 that the report itself has two -- are there two pages 24 to the report? Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 16 1 A. Yes, sir. 2 Q. What other information is included for 3 this report? 4 A. The other information, it lists directions 5 for the driver. When a driver is placed out of 6 service, there are certain directions he or she has to 7 follow, plus with all the information we are giving to 8 the driver, it is very easy for people to forget; so 9 this way it's right in writing that I, as an officer, 10 placed, whatever the person's name is, out of service 11 and for how long they are placed out of service. Not 12 everyone is placed out of service for ten hours. It 13 depends on what violation has occurred. Sometimes it 14 could be two hours, sometimes four hours. In this 15 particular case it was ten; so it is typed right on 16 there that he is being placed out of service. He may 17 not drive any commercial motor vehicle for ten 18 consecutive hours. Then there's other information on 19 there, whoever repairs any motor vehicle out-of-service 20 violations that are strictly safety violations for the 21 vehicle and information for the driver and also for the 22 company, where they need to return the report to. 23 Q. I see where you had testified about the 24 ten consecutive hours off duty. That is printed on the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 17 1 first page near the bottom of the report; is that 2 correct? 3 A. The report that I have, sir, it is on the 4 second page, in the top third. I have my copy of the 5 report. I believe yours and mine are slightly 6 different. It contains the same information. I did 7 compare the two. 8 Q. Okay. Do you have Staff Exhibit 1 up 9 there? 10 A. No, sir. I just have my copies. 11 Q. Just for purposes of the record, again, 12 the information as to the notice of the ten consecutive 13 hours being in writing or typing on the report, for 14 this exhibit is that information contained on the 15 bottom of the first page? 16 A. Yes, sir, it certainly is. 17 Q. And can you read that information as -- 18 the way it appears? 19 A. Certainly. "I hereby declare" -- and I'm 20 sorry, I'll mispronounce the gentleman's name -- 21 "Jaroslaw Engelbardt out of service. This driver may 22 not drive any commercial motor vehicle nor may any 23 commercial carrier permit or require this driver to 24 drive any commercial motor vehicle until ten Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 18 1 consecutive hours off duty." 2 Q. And in addition to having this typed on 3 the report, was this verbally communicated to the 4 driver? 5 A. Yes, sir, explicitly. 6 Q. And for the status of being placed out of 7 service, is there anything physically done with any 8 information being placed on the vehicle itself or is it 9 just contained in the report? 10 A. If a driver, him or herself is placed out 11 of service, no, nothing is placed on the vehicle. If 12 the vehicle is placed out of service, we have a red 13 out-of-service sticker, if you will, a decal that is 14 placed on the vehicle. Before proceeding down the road 15 with Mr. Engelbardt, he did correct the out-of-service 16 violation that was on the vehicle; so it was safe to 17 continue down the road. 18 Q. Okay. So for being placed out of service 19 here, the driver, Mr. Engelbardt, you communicated that 20 to him orally and also provided that to him in 21 writing. Did you give him an opportunity to review the 22 report after you issued it to him and described what 23 the report was to him? 24 A. Yes, sir. I hand the person the report. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 19 1 I go step by step and explain everything to the person 2 that I have stopped. I give them an opportunity to ask 3 any questions if they don't understand something, and a 4 lot of times, too, folks won't ask, that they just 5 stare, so I will ask them "any questions." Sometimes 6 they're a little bit apprehensive. Again, you gotta 7 understand the stress that we're putting on them when 8 we stop them. He did not indicate that he had any 9 questions. When I place someone out of service, again, 10 I'm very explicit. I let them know what's going on so 11 there are no questions later. I tell them where we're 12 going to take them. I give them an opportunity to pick 13 a local place. I will give them several places to 14 choose from, because we don't want them sitting on the 15 side of the roadway without access to any food or rest 16 room facilities. 17 Q. And after you have -- well, let me ask you 18 this, when you complete this report, is this done 19 immediately after you're done physically doing the 20 inspection? 21 A. Yes, it is. I go back to the cruiser. 22 That's where the laptop computer is, and I type all the 23 information into the computer, print the report. Then 24 I reapproach the vehicle I have stopped, hand the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 20 1 driver his copy. After everything is explained to him 2 or her, their signature is required on the bottom just 3 to say that they have, in fact, received that copy, not 4 that they're agreeing to anything. 5 Q. And that was done in this case? 6 A. Yes, sir, it was. 7 Q. Now, Staff Exhibit 1, obviously this is 8 not the exact report that was handed to Mr. Engelbardt 9 that date of the inspection, but is this an accurate 10 representation of the report that you generated and 11 issued to Mr. Engelbardt back on October 25th, 2006? 12 A. Yes, sir, it is. 13 Q. Okay. Is this a record that's kept in the 14 ordinary course of business in the sense that this is a 15 form that's generated by your agency as a result of 16 doing inspections in the field? 17 A. Yes, sir, it is. 18 Q. And after such time as this report is 19 generated and issued, subsequently do you provide this 20 information to any agency? Is it reported to any 21 agency? 22 A. Yes, sir. What we do at the end of 23 business on that day, we upload all of the inspections 24 that we have done that day, and we upload them to the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 21 1 Website, so they are sent on to the Licensing and 2 Commercial Standards section and also the PUCO. 3 Q. And that was done in this case? 4 A. Yes, sir, it was. 5 Q. All right. Let me ask you, after you had 6 placed Mr. Engelbardt out of service here for a logbook 7 violation, did you escort him to an area? 8 A. Yes, sir, I did. Three miles from where 9 the inspection was concluded at is Exit 187 of the Ohio 10 Turnpike. At that particular time -- it's a very 11 populated area, very commercial area. There was a 12 pretty large truck stop at that time, a Pilot truck 13 stop, several hotels that are friendly to drivers, have 14 large parking lots, and a couple commercial properties 15 there that do allow truck drivers to leave their 16 vehicles there, as long as they're notified of it. 17 Q. So Mr. Engelbardt followed you there or 18 did you follow him there? 19 A. I followed him down to the exit. I had 20 asked him before he left where would he rather go. I'm 21 not going to tell someone you're going to this place. 22 I leave it up to them, where would you like to go. In 23 this case, Mr. Engelbardt could not make up his mind. 24 He wasn't sure which place he wanted to go to. It was Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 22 1 explained again several times that he was not permitted 2 to drive, he needs to choose a place that he needs to 3 go to for ten consecutive hours. In my notes it says I 4 took him to an area with these places available. When 5 I type that into my notes it's because I didn't 6 actually take the person right to the door of that 7 establishment they requested, it's because I did get 8 called from the scene, but I still make sure that the 9 person understands the circumstances, their options, 10 where they have to go and that they cannot drive. 11 Judging from my notes in this particular case, I must 12 have got called off approximately a half mile or a 13 quarter of a mile from where the truck stop was at to 14 respond to a different call. 15 Q. So this area you described, it's an area 16 that has facilities that provide lodging and food and 17 plenty of space to park his commercial motor vehicle? 18 A. Yes, sir. There was a large truck stop 19 there, also. 20 Q. All right. Now, after this was done, 21 after this inspection was concluded and you left Mr. 22 Engelbardt at the location you just described there at 23 that exit, where did you go from that point? 24 A. The call that I had, and I apologize, I do Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 23 1 not remember what the call was, was canceled; so I 2 proceeded west on the Ohio Turnpike to patrol the 3 Cuyahoga County, Summit County area, which was the area 4 I chose to work on that particular day. 5 Q. Did you have yet a second encounter with 6 Mr. Engelbardt that day that resulted in yet a second 7 inspection? 8 A. Yes, sir, unfortunately, I did. I was 9 sitting well off the roadway, still in plain view of 10 all the traffic, in a nice, safe area, when I saw Mr. 11 Engelbardt drive by me going westbound. 12 Q. Did that result in a second Driver Vehicle 13 Examination Report being generated and an inspection 14 being done on Mr. Engelbardt? 15 A. Yes, sir. I was curious as to why he was 16 operating down the road when I had just placed him out 17 of service; so, yes, I activated my emergency lights 18 for my cruiser and again pulled Mr. Engelbardt over to 19 see what the circumstances were. 20 Q. Okay. If you would refer now to what's 21 marked as Staff Exhibit 2 for identification, can you 22 please identify that document for the record, please? 23 A. Yes, sir. This is the Public Utilities 24 Commission, copy of the examination inspection report Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 24 1 that I did on October 25, 2006. 2 Q. And what does that report tell us as to 3 the time, then, that you would have conducted the 4 second inspection of Mr. Engelbardt? 5 A. That this inspection started at 0845 6 hours. 7 Q. And I see, then, on Staff Exhibit 2 there 8 is another report number that's provided for this 9 report? 10 A. Yes, sir. This is, again, sequential 11 numbers. Each time you do a report the numbers do go 12 up. This is a -- it's a new report, so it's a new 13 report number. Just as the first, the OH is for the 14 State of Ohio. The next four numbers are my 15 identification number with the patrol, and the last six 16 numbers would be the report number. 17 Q. Okay. And provided there is the 18 inspection date as well? 19 A. Yes, sir. 20 Q. Of course, it's the same date? 21 A. Yes, sir, October 25, 2006. 22 Q. Now, the inspection level appears to be 23 different than the first inspection that was done in 24 this case? Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 25 1 A. Yes, sir. This was a Level 3 inspection, 2 a driver and vehicle credential only inspection, where 3 I just again check the registrations and in this case 4 checked the driver's logbook and see why he's out there 5 driving. 6 Q. So what brought your attention to this 7 vehicle for purposes of stopping and inspecting it was 8 due to your first inspection that was done within an 9 hour before that time? 10 A. Yes, sir. I had known that I had placed 11 Mr. Engelbardt out of service for ten consecutive 12 hours, and here he is driving the vehicle again; so it 13 was an obvious violation. That's the reason that I 14 stopped him. 15 Q. And, again, the information contained in 16 Staff Exhibit 2 is information that you had previously 17 obtained from the driver, information from the vehicle 18 itself, and inserted into your report; is that correct? 19 A. That is correct, sir. 20 Q. Okay. Moving down to the violations for 21 Staff Exhibit 2 vehicle report, what information is 22 contained there for the violations for the second 23 inspection? 24 A. Under violations, for the section code, Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 26 1 obviously it gives a Federal Motor Carrier section 2 number, numerical section for what the violation is. 3 The unit indicates a D, which is driver violation. OS 4 again stands for out of service. Nothing was verified 5 that was repaired. That's what the verified is for. 6 There was no motor vehicle crash, and then violation 7 description shows the violations that I discovered, and 8 in this case, again, Mr. Engelbardt was missing three 9 days of his logbook. He had not gotten those caught up 10 yet, and he was also violated for driving while being 11 out of service. 12 Q. You have notes there. Could you read the 13 notes that are provided there for the violation 14 description? 15 A. Yes, sir. For the first or the second 16 violation? 17 Q. You can read both. 18 A. Okay. For the first violation, "Driver 19 failing to retain previous seven days logs. Logs end 20 10/22 end of day off-duty status. No logs for 10/23, 21 10/24, 10/25." Then the second violation is for 22 driving after being declared out of service. "INSP," 23 which is an abbreviation for inspection, I give the 24 previous inspection number, "OH0775002893, 10/25, 7:20A Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 27 1 placed driver out of service 10 consecutive hours. 25 2 minutes later observed driver operating CMV," which 3 again is our abbreviation for commercial motor vehicle. 4 Q. Okay. So the notes there that you just 5 read are notes that reference the first inspection 6 report. The report number was from the first 7 inspection, and then you indicate the amount of time 8 that elapsed between the first inspection and the 9 second inspection; is that correct? 10 A. That is correct, sir. 11 Q. Again, it contains -- this report contains 12 the same other additional information that would give 13 direction to the driver as to notifications, et cetera; 14 is that correct? 15 A. That is correct, sir. 16 Q. And this report also has a signature area 17 for yourself and the driver; is that correct? 18 A. That is correct, sir. 19 Q. As a result of the second inspection, you 20 generated this report and issued it to the driver? 21 A. Yes, sir. After I print off the report, I 22 walk up to the driver. I explain everything to the 23 driver, again ask if they have any questions, and in 24 this particular case I'm sure I would have asked the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 28 1 gentleman why are you driving, you were just placed out 2 of service, and wait for any response, if they have any 3 response. 4 Q. Do you remember any other communication 5 that would have taken place between you and Mr. 6 Engelbardt at that time for the second inspection? 7 A. If anything is out of the ordinary, 8 extenuating circumstances, the person is, you know, 9 very ill, problems at home, you know, pressure from the 10 company, whatever, I always note it in my notes. There 11 was nothing in my notes to indicate that, so nothing 12 that I would consider out of the ordinary that I would 13 deem necessary to place in my notes; so, no, I cannot 14 honestly say there was any other communication between 15 us. 16 Q. Again, this is not the actual report that 17 was given to Mr. Engelbardt at that time, but is this 18 Staff Exhibit 2 an accurate representation of a report 19 that you generated and issued to Mr. Engelbardt on that 20 day? 21 A. Yes, sir. I visibly inspected Staff 22 Exhibit 2 with my copy, the actual report I issued to 23 the gentleman, and they are very close and contain all 24 the same information. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 29 1 Q. Again, this is a record that's kept in the 2 ordinary course of business for you to execute your 3 duties as an officer? 4 A. Yes, sir, it is. 5 MR. JONES: Your Honor, if I can just have 6 one second? 7 THE HEARING EXAMINER: Yes. 8 (Discussion off the record.) 9 By Mr. Jones: 10 Q. Officer Benett, would you please read your 11 inspection notes from the second inspection, Staff 12 Exhibit 2, for the record, please? 13 A. Those are not contained in the copy that I 14 have of the report. 15 Q. If you look at Staff Exhibit 2 -- 16 A. Yes, sir. I'm sorry, they are. It's just 17 in a different location. I apologize. That's my 18 fault. Inspection is, "Carrier and driver 19 credentials. Query Central not available." That is 20 one of the Websites that we go to to check the company 21 and driver credentials. "Safer okay." Again, that is 22 another Website that we go to check the company and 23 carrier credentials. "When placed OOS" -- which stands 24 for out of service -- "from prior inspection, the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 30 1 driver was followed to an area that had access to five 2 different hotels and a truck plaza." 3 Q. That's noted in typing right on the 4 report? 5 A. Yes, sir, it is. 6 MR. JONES: Your Honor, I have no other 7 questions and, obviously, offer the witness and, 8 subject to cross-examination, would like to move for 9 the admission of Staff Exhibits 1 and 2 into the record 10 as evidence in this case. 11 THE HEARING EXAMINER: Those exhibits will 12 be admitted into the record. 13 (EXHIBITS ADMITTED INTO EVIDENCE.) 14 THE HEARING EXAMINER: Mr. Engelbardt, do 15 you have any questions for the officer? 16 MR. ENGELBARDT: Actually, the second 17 time, if the officer can say, because this is true, the 18 officer not stop me. I just stop myself when I saw the 19 officer, and I ask the officer, I want to go very first 20 rest area. I don't know -- 21 MR. JONES: Mr. Engelbardt, you have to do 22 it in the form of a question. You'll have a chance to 23 testify, but you need to ask a question. 24 THE HEARING EXAMINER: Do you have any Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 31 1 questions for the officer right now? 2 MR. ENGELBARDT: No. 3 THE HEARING EXAMINER: All right. Thank 4 you, then. You may have your seat. 5 EXAMINATION 6 By The Hearing Examiner: 7 Q. Officer Benett, I have a question for you. 8 A. Yes, sir. 9 Q. The notes in Staff Exhibit 2, this says 10 that the driver was followed to an area that had access 11 to five different hotels and a truck plaza. So after 12 you had done the initial inspection and informed Mr. 13 Engelbardt that he was out of service, if I'm 14 understanding correctly, you also informed him of where 15 he could go to -- where he could go and park for the 16 ten hours? Am I correct? 17 A. Yes, sir. What I had done -- it's a toll 18 exit, a toll interchange, if you will. We actually 19 physically stopped. I exited my cruiser. I went back 20 to Mr. Engelbardt and was talking with him and again 21 asked him, this is what your choices are, where would 22 you like to go to, this place is right here, just north 23 of us, just take the ramp and go north, same thing with 24 south; so, yes, I did have a conversation with him and Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 32 1 was very explicit in explaining it. He could not make 2 up his mind, so I left it up to him, because I did 3 explain to him I had to go. 4 Q. You followed him for a point, and then you 5 had to respond to another call? 6 A. I followed him for three miles, yes, sir. 7 Q. Thank you. I have no other questions. 8 MR. JONES: Your Honor, if I can clarify 9 one thing. 10 REDIRECT EXAMINATION 11 By Mr. Jones: 12 Q. Officer Benett, it was after the first 13 inspection that you had escorted Mr. Engelbardt to the 14 area where there was five hotels and the truck plaza; 15 is that correct? 16 A. That is correct, sir. 17 Q. Was that done the second time, after the 18 second inspection as well? 19 A. The second time I had him follow me down 20 the road a few miles where there was a large service 21 plaza on the Ohio Turnpike, and I followed him into a 22 parking space there where he parked. 23 Q. So the second location, after the second 24 inspection, was a different location than the first Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 33 1 location where you -- excuse me. After the first 2 inspection, you escorted him to an exit that had hotels 3 and a truck plaza, et cetera; is that correct? 4 A. That is correct, sir. 5 Q. And that area is not the same exit that 6 you escorted him to after the second inspection; is 7 that correct? 8 A. That is correct. I stopped him several 9 miles down the road for the second inspection, and the 10 service plaza I took him to then was another six miles 11 down the road. Down the road, I mean west from where 12 we were originally. 13 Q. Right. Thank you. That's all I have. 14 A. Thank you, sir. 15 (Witness excused.) 16 MR. JONES: Your Honor, with that, we have 17 a second witness to call to the stand, John Canty. 18 THE HEARING EXAMINER: Mr. Canty, raise 19 your right hand. 20 JOHN J. CANTY, 21 being by The Hearing Examiner first duly sworn, as 22 hereinafter certified, testifies and says as follows: 23 THE HEARING EXAMINER: Please take a 24 seat. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 34 1 DIRECT EXAMINATION 2 By Mr. Jones: 3 Q. Would you state your name for the record, 4 please. 5 A. John J. Canty, C-a-n-t-y. 6 Q. Where are you employed? 7 A. The Public Utilities Commission of Ohio. 8 Q. What is your job title and duties? 9 A. I'm the Assistant Chief of the Compliance 10 Division. I oversee the employees who assess the 11 violations that are discovered during commercial motor 12 vehicle inspections. We send out notices to 13 responsible parties in the form of a Notice of Apparent 14 Violation which essentially informs them that they can 15 pay the fine or they can request a conference. 16 Q. How long have you been in that department? 17 A. About 14 years now. 18 Q. Have you had an opportunity to review the 19 Examination Reports in this case, in the file for this 20 case? 21 A. Yes. 22 Q. So if you see -- I believe there's a 23 packet of information up there, Staff Exhibit 1 and 24 Staff Exhibit 2. Are those reports that you reviewed Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 35 1 for your preparation today? 2 A. Yes. 3 Q. Could you please tell us how these reports 4 were received by your department? 5 A. Yes. After an investigator completes an 6 inspection in the field on his laptop computer, he then 7 uploads that inspection electronically from his 8 computer to the computers here at the Public Utilities 9 Commission. 10 Q. And that was properly done in this case? 11 A. Yes. 12 Q. After these reports were received by your 13 department, what was done with this information? 14 A. They are reviewed, either manually 15 reviewed by the compliance officers or reviewed by a 16 computer program which checks them for violations, 17 compares them to a table of violations that we normally 18 assess forfeiture against. 19 Q. Okay. What violations in this case does 20 your department assess the forfeiture for? 21 A. This particular Examination Report, we 22 assessed the out-of-service violation, 395.8K -- I'm 23 sorry. 395.13D, driver being declared out of service, 24 that was a $1,000 forfeiture for that. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 36 1 Q. Okay. How about the second violation of 2 the logbook violation? 3 A. That normally would have been assessed a 4 $100 forfeiture, but we have a statutory cap of a 5 $1,000 for inspection, so it was set at a $1,000 6 instead of $1,100. 7 Q. In making the determination of what the 8 forfeiture would be for a particular case, do you have 9 any fine schedules that you apply to these cases to 10 determine what would be the appropriate amount for a 11 case? 12 A. Yes. We have a written fine schedule of 13 out-of-service violations and other assessable 14 violations. It's basically a list of all the 15 violations that we assess and the dollar amount for 16 each one of them. 17 Q. And if you would refer to that packet of 18 information up there and look at Staff Exhibit 3, and 19 if you could, identify that document for the record, 20 please? 21 A. Yes. That is the fine schedule I was just 22 referring to. 23 (Discussion off the record.) 24 Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 37 1 By Mr. Jones: 2 Q. Could you give us a general overview of 3 what's contained in the fine schedule out-of-service 4 violations? 5 A. Yes. The first two pages list the 6 violations by group, Group 1, 2, 3, or 4, which is 7 roughly grouped by the severity of the violation. The 8 higher the group number, roughly, the higher the 9 violation, the severity of the violation. For 10 instance, the logbook violation that we did not assess 11 is contained as a Group 1 violation. That's a $100 12 fine for one violation. There's also a separate note 13 at the bottom of Group 2 violations on Page 1. It 14 says, "Violation of out of service notice," $1,000. 15 That's where we came up with the dollar amount. We had 16 a cap at a $1,000. 17 Q. So, according to Staff Exhibit 3, the 18 out-of-service violation here involving Mr. Engelbardt, 19 that would be classified as a Group 2 violation? 20 A. Correct. 21 Q. And the amount that shows for a fine for 22 that particular violation would be a $1,000, according 23 to this exhibit? 24 A. Correct. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 38 1 Q. And I see there's additional pages 2 attached to this exhibit. What do those pages show? 3 A. The additional pages list each violation 4 code sequentially and also contain the dollar amount 5 for each of those violations. 6 Q. And so this violation, out-of-service 7 violation, appears again on the last page of this 8 exhibit, is that correct, under Economic Violations? 9 A. Yes. Yes, it is. 10 Q. Okay. And the amount shown there is 11 consistent with a Group 2 violation? 12 A. Yes, it is. 13 Q. So was this chart which is Staff Exhibit 14 3, was it used by your department to calculate and to 15 apply the assessment in this case for an out-of-service 16 violation for Mr. Engelbardt? 17 A. Yes. 18 Q. And this chart is maintained by your 19 department? 20 A. Yes, it is. 21 Q. I see the -- and that department being the 22 Compliance Division; is that correct? 23 A. That's correct. 24 Q. I see at the top of the first page of Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 39 1 Staff Exhibit 3 the effective date for this chart. 2 What date is shown there? 3 A. At the top of Exhibit 3, effective date, 4 October 26, 2005. 5 Q. Okay. And so, then, this chart would 6 apply to any violations that would have occurred from 7 any inspections on that same date, October 25th, 2006; 8 is that correct? 9 A. Yes, on or after October 25th, 2006. 10 Q. All right. How is this chart -- is it in 11 compliance with the Commercial Vehicle Safety Alliance? 12 A. Yes, it is. 13 Q. And so the fine that's being recommended 14 here by the Transportation Staff of the Public 15 Utilities Commission, this calculation, this 16 application was done consistent with the Commercial 17 Vehicle Safety Alliance procedures? 18 A. Yes, that's correct. 19 Q. And this is the amount that you would be 20 recommending to the Commission to adopt if the 21 Commission were to find Mr. Engelbardt guilty of this 22 violation? 23 A. Yes. 24 Q. Now, after your department determines what Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 40 1 will be the assessment that will be recommended here 2 for a violation, what's the next step taken by your 3 department? 4 A. We are required to notify the responsible 5 party by mail. We call it a Notice of Apparent 6 Violation and Intent to Assess Civil Forfeiture. It is 7 a letter or notice which informs the responsible party 8 that we intend to assess them or fine them the dollar 9 amount of the violations discovered. There's also an 10 inspection sheet that is enclosed with that letter, 11 directs them to either pay the forfeiture amount or 12 they can request a conference. 13 Q. And is that the document that appears in 14 Staff Exhibit 4? 15 A. Yes, dated December 8, 2006, addressed to 16 Mr. Engelbardt, Notice of Apparent Violation and Intent 17 to Assess Forfeiture. 18 Q. What's cross-referenced there from Staff 19 Exhibits 1 and 2 to your letter, the notice in Exhibit 20 4? What information correlates? 21 A. There are many items that correlate. The 22 most important one, I presume, would be the inspection 23 number, OH0775002894, which was the same inspection 24 number as Exhibit 2. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 41 1 Q. Okay. Any other information that's 2 provided there that documents any information provided 3 from Staff Exhibits 1 and 2? 4 A. Yes. It identifies the responsible 5 person, the driver, with his address and states the 6 date of the inspection, the vehicle numbers, the name 7 of the carrier, BBT Logistics. I believe that's all 8 that is carryover from the inspection report. 9 Q. As well as the -- 10 A. As well as -- yes, I'm sorry, as well as 11 the violation code and the violation description, yes. 12 Q. All right. Further, then, on Staff 13 Exhibit 5, would you please identify that document, 14 please? 15 A. Yes. That's another notice or letter we 16 refer to as a Notice of Preliminary Determination. 17 It's dated July 20th, 2007, referencing the same 18 inspection number, addressed to Mr. Engelbardt. This 19 letter was sent out to him following a telephone 20 conference that was conducted by our staff with Mr. 21 Engelbardt, and the Notice of Preliminary Determination 22 is the normal document that we would send out to advise 23 the party of our decision from the conference, and in 24 this case, this decision from our conference was to Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 42 1 maintain the forfeiture amount of $1,000. He was also 2 directed at that time to either pay the forfeiture 3 amount or request an administrative hearing. 4 Q. And so these are -- Staff Exhibits 4 and 5 5, these are form notices that are generated by your 6 department and contain case specific information as to 7 violation and assessment; is that correct? 8 A. That is correct. 9 Q. And these records are kept in the course 10 of business for your department? 11 A. Yes. 12 Q. Generated by your department? 13 A. Yes. 14 (Discussion off the record.) 15 MR. JONES: Your Honor, I have no further 16 questions for this witness. Again, subject to 17 cross-examination, I'd like to move for the admission 18 of Staff Exhibits 3 and 4 -- excuse me, 3, 4, and 5. 19 Thank you. 20 THE HEARING EXAMINER: All right. Mr. 21 Engelbardt, do you have any questions for Mr. Canty 22 concerning how the fine was calculated? 23 MR. ENGELBARDT: No. 24 THE HEARING EXAMINER: Thank you. Staff Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 43 1 Exhibits 3, 4, and 5 will be admitted into evidence as 2 well. 3 (EXHIBITS ADMITTED INTO EVIDENCE.) 4 THE HEARING EXAMINER: Is there anything 5 else that you will be presenting, Mr. Jones? 6 MR. JONES: Nothing else, no other witness 7 to present on behalf of the Staff. 8 THE HEARING EXAMINER: Thank you, Mr. 9 Canty. 10 (Witness excused.) 11 THE HEARING EXAMINER: Mr. Engelbardt, if 12 you'd like to take the stand, please. 13 JAROSLAW ENGELBARDT, 14 being by The Hearing Examiner first duly sworn, as 15 hereinafter certified, testifies and says as follows: 16 THE HEARING EXAMINER: Thank you, sir. 17 Please take a seat. Mr. Engelbardt, what would you 18 like to tell us as far as your side of what happened, 19 your position? 20 DIRECT TESTIMONY 21 THE WITNESS: From the beginning, before I 22 start driving, I have same-day surgery. The doctor -- 23 (Discussion off the record.) 24 THE WITNESS: Before I start driving, I Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 44 1 have same-day surgery. I know I have to fill out of my 2 logbook. My dispatcher ask me to make a delivery, so I 3 not fill out my logbook and start driving. I go to 4 rest area, you know, to sleep. Actually, I sleep 5 almost all night, and in the morning, I just leaving 6 from rest area, I late for my appointment, take out 7 from the rest area, and state trooper stopped me; all 8 the paperwork, driver's license, medical card, 9 everything. And I have one pin open, and I use the 10 hammer, I close it, everything, and state trooper sent 11 me to a motel. Actually, I have two bed in my truck, 12 everything, food, everything. I go -- I believe 13 there's a -- I don't remember what the name of the 14 hotel. I ask for parking there. He says no way to 15 park 18 wheeler with noisy genset. I have a reefer 16 this time and with generator. He said no way to park 17 over there with noisy genset, so I look at the map. I 18 had two choice, travel different way or come back to 19 the Turnpike and take very first next rest area. I 20 come back to Ohio Turnpike, and couple mile down I saw 21 the officer in the median between east and west. I 22 just pull over on the side. Any second the officer 23 follow me, and I told officer, listen, I want to go to 24 very first rest area and I gonna stay ten hours, for Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 45 1 the first report says I out of service for ten hours, 2 and I tried to explain everything. The officer asked 3 me for the paperwork, what he give me the first time. 4 I just give the paperwork, officer. Then he go to his 5 car, bring me another paperwork, you follow me to rest 6 area, and in that rest area I stay at least ten and a 7 half hours, because I fall asleep. After ten hours I 8 fill out of my logbook and go to make a delivery. 9 That's it. End of story. 10 THE HEARING EXAMINER: Mr. Jones, do you 11 have any questions for Mr. Engelbardt? 12 CROSS-EXAMINATION 13 By Mr. Jones: 14 Q. Mr. Engelbardt, you're saying that you 15 were stopped twice for two different inspections on 16 October 25th, 2006; is that correct? 17 A. When I leaving from first rest area and 18 officer stopped me, I asked him what the reason. 19 Speeding. This is impossible to go from rest area more 20 than 65 mile per hour, from the first, and, okay, maybe 21 I too close with somebody, which morning traffic, rush 22 hour, everybody drive close. I work in this company 11 23 years already. I don't have any accident. So, okay, 24 my logbook is not correct. I know I'm guilty for the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 46 1 logbook, and the second time there's no inspection, 2 just officer take the paperwork to car, make a copy. 3 And the inspection says leaks, steering axle, 4 whatever. How officer know I have any leaks? 5 Q. Mr. Engelbardt, let me ask you this, 6 you're not denying the logbook violation? You're 7 saying you're guilty of that violation; correct? 8 A. Yes. For the logbook, yes, I'm guilty. 9 Q. Okay. And as a result of the logbook 10 violation, Officer Benett here, he did place you out of 11 service for that violation after the first inspection; 12 is that correct? 13 A. Yes. 14 Q. Okay. So he communicated that to you, 15 that you could not drive the vehicle again for ten 16 hours; is that correct? 17 A. Yes. So I go the first stop, and I can't 18 stay over there, so -- 19 Q. And he escorted to you an exit where there 20 were these hotels in the truck plaza? 21 A. No, no. Before pay toll, the booth, the 22 officer make a U-turn, go different way. I pay the 23 toll. I see across the intersection motel. I just 24 park over there, and I go inside, ask only for Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 47 1 parking. I didn't want a hotel because I have two bed 2 in my truck, and I don't need any hotel, spend the 3 money for hotel, so I just ask for parking place. He 4 said no way to park with genset. Eighteen wheeler, I 5 can't park 18 wheeler over there. 6 Q. I'm talking about the first inspection. 7 After he stopped you the first time and issued you the 8 report for the logbook violation and communicated to 9 you that you were out of service for that violation, he 10 then escorted you, he followed you to an area where you 11 could safely stay for ten hours; is that correct? 12 A. No. Just what I say, before I pay toll, 13 officer make a U-turn and left me before I pay the 14 toll. I pay toll, and I go maybe quarter mile down to 15 first motel. I ask for place to stay. So before I pay 16 toll, the officer make a U-turn and go to -- west, 17 because -- westbound. Then I see the officer a second 18 time. 19 Q. Let me see if I can understand this. It's 20 your testimony that you -- after you were told that you 21 were out of service, you did move your vehicle again; 22 right? 23 A. Actually, I not pull over for sure. So, I 24 mean -- after first inspection, I just moving all the Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 48 1 time, step by step, till I park the next area, where 2 officer escort me for the next rest area. I don't 3 remember the mile marker, whatever. After first 4 inspection, I go step by step to I finally stop for ten 5 hours. Maybe I explain -- 6 Q. I'm still talking about after the first 7 inspection; okay? 8 A. Yes. 9 Q. What is your testimony as to after you 10 were told you were out of service for ten hours and 11 that you couldn't move the truck for ten hours, where 12 did things go from where you and the officer were done 13 after he communicated that to you? 14 A. Actually, I go to my truck, and officer 15 drive, follow me. I have to park my truck somewhere 16 safe place and stay for ten hours. 17 Q. That was done here; right? That was done? 18 A. Yeah. 19 Q. So he escorted you to an exit ramp? 20 A. Exit ramp, yes. 21 Q. Okay. And so then you were told that you 22 had to stay there for ten hours? 23 A. I have to find someplace. The officer 24 says go to some hotel, truck stop, whatever. I don't Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 49 1 know the truck stop. I don't know it. I ask in the 2 front desk in the motel, Holiday Inn, whatever. I not 3 remember what kind of hotel. There's plenty of hotels 4 there. They said no parking for 18 wheeler. When I 5 look on the map, a couple miles down is a rest area, 6 big rest area; so I decide to go to rest area and stay 7 there. I understand. I driving over 20 years. I know 8 what this mean, out of service, and I decide go to next 9 rest area. The officer can say -- I just pull over. 10 First, what I said, I want to go to rest 11 area; right? 12 Q. You can't ask him. You're testifying to 13 my questions. 14 A. Okay. I decide to go to next rest area 15 and stay for ten hours. 16 Q. Just so I understand your testimony, Mr. 17 Engelbardt, you're saying that the exit that Officer 18 Benett escorted you to, there was a motel or something 19 there that you went to? 20 A. Yes. 21 Q. And parked, and then you went inside and 22 had that discussion with somebody? 23 A. Yeah. The person working the motel says 24 no 18 wheeler, no, I can't park there. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 50 1 Q. Mr. Engelbardt, isn't it true that there 2 were other facilities there at that same exit, 3 including a truck stop? 4 A. I don't know about the truck stop, and 5 other motel is also for regular car parking lot; so I 6 not even try to next, next, next. I go out to 7 traveling west to the next rest area, because I know 8 for sure rest area I can park. 9 Q. All right. 10 (Discussion off the record.) 11 By Mr. Jones: 12 Q. Mr. Engelbardt, did you actually look at 13 other places at that exit to be able to park your 14 truck? 15 A. I really don't know. I know there's some 16 motels, but when I make a U-turn, just -- I don't see 17 anyplace where I can park 18 wheeler. 18 Q. And you're saying there is not a truck 19 plaza at that exit? 20 A. No. I don't know the truck plaza up 21 there. 22 THE HEARING EXAMINER: When you say you 23 don't know it, you didn't see one? 24 THE WITNESS: I don't see anyone. I don't Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 51 1 see anyplace where I can park 18 wheeler. I got 2 40-foot container and noisy genset, and if I know the 3 truck plaza over there, I can go there and not be here 4 today. 5 THE HEARING EXAMINER: So you did not see 6 anywhere at that exit -- 7 THE WITNESS: No. 8 THE HEARING EXAMINER: -- that would 9 accommodate your vehicle? 10 THE WITNESS: No. 11 THE HEARING EXAMINER: And you're saying 12 that the first -- the hotel you did stop at, they would 13 not let you stay there? 14 THE WITNESS: No. What I see is a bigger 15 place where I can park, so I park the trailer, truck. 16 The next one is smaller parking lot, so I even can't go 17 in with trailer. 18 THE HEARING EXAMINER: The first hotel 19 said it's too noisy? 20 THE WITNESS: No way. Too noisy and no 21 place for 18 wheeler. 22 THE HEARING EXAMINER: Then when you left, 23 you didn't see any other places? 24 THE WITNESS: No. I open my map, and I Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 52 1 figure out six, seven miles down is a rest area, so I 2 can stay over there. I travel to next rest area. 3 Three, four miles before the rest area I saw the 4 officer. I just right away pull over and go out the 5 truck, and I ask -- I tell the officer I want to go 6 just only to this rest area. That's all I want to do. 7 THE HEARING EXAMINER: Sorry I stepped in, 8 Mr. Jones. You can continue. 9 By Mr. Jones: 10 Q. It's your testimony, Mr. Engelbardt, that 11 there was no open space for you to park at that exit? 12 A. No. I don't know the truck stop. I just 13 ask in the motel. The next motel got smaller parking 14 lot, so I don't see anyplace to stay. 15 Q. So then you got back on the freeway? 16 A. Yes. I go back to Ohio Turnpike and 17 travel to the very next rest area, where the officer 18 escort me for parking. 19 Q. So you traveled a few miles, and then 20 that's when you noticed the officer in the berm? 21 A. Yes. I saw the officer couple miles down 22 from the exit. I just pull over, and after the second 23 paper, the officer give it to me, I go five mile maybe 24 down, park in the rest area. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 53 1 Q. So it's your testimony you stopped before 2 the officer stopped you? 3 A. Yes, sir. 4 Q. And then, at the time of that second stop, 5 there was a second inspection; is that correct? 6 A. There's no inspection. Officer take the 7 paperwork, what he give me the first time, go to his 8 car, and give me other paperwork. 9 Q. So you were told, though, that you were 10 driving while placed out of service; correct? 11 A. Yes. 12 Q. You understood that? 13 A. Yes, I understood perfectly, and I tried 14 to explain I go only to the rest area. 15 Q. Did you tell that to the officer, that 16 that's why you moved the truck? 17 A. Yes, I told the officer, and I showed the 18 officer the patch. I have a patch from the hospital 19 where I have same-day surgery, and, actually, I start 20 crying, because my life is -- and officer told me, give 21 me the paperwork and men don't cry, and end of story. 22 I not talk anymore to the officer. 23 Q. You were escorted then to another exit; is 24 that correct? Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 54 1 A. Not exit. It's a rest area. It's not an 2 exit. It's a rest area in Ohio Turnpike. I park truck 3 in line, and I stay more than ten hours. 4 (Discussion off the record.) 5 By Mr. Jones: 6 Q. Mr. Engelbardt, isn't it true that Officer 7 Benett communicated to you that that exit that he 8 escorted you to, that you had a choice on either side, 9 that one side of that exit there were motels and on the 10 other side there was a truck stop that was clearly 11 marked with signage, and, obviously, it was visible 12 there from the exit? Do you remember that? 13 A. I remember he asked me for stop at that 14 exit where he escort me, and I see motels. I don't see 15 any truck stop. If I see the truck stop, I stop there. 16 Q. Isn't it true that Officer Benett had a 17 conversation with you about your choices at that exit? 18 A. Yeah. He told me about that exit is many 19 motels, I can find someplace to stay for ten hours. 20 Q. Many motels and a truck stop? 21 A. I don't know any truck stop. 22 Q. You don't remember him telling you about a 23 truck stop being there? 24 A. No, no. I just look around, and I don't Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 55 1 see any truck stop. 2 (Discussion off the record.) 3 By Mr. Jones: 4 Q. Did you try driving in both directions at 5 that exit to see if there were any other facilities 6 like a truck stop? 7 A. Actually, it's very hard to drive with 18 8 wheeler around when I don't know the area, to make a 9 U-turn, whatever, is very hard to find. In the first 10 place, I just ask to stay and I can't stay there, and 11 so I make a U-turn. I find on the map the next rest 12 area. I don't find any other place, so I just -- I 13 know for sure the rest area, so I travel to the rest 14 area. 15 Q. Well, the rest area from that -- the 16 distance of that rest area from that exit that you were 17 stationed was quite a distance away; isn't that 18 correct? 19 A. It's maybe six, seven miles down. 20 (Discussion off the record.) 21 MR. JONES: Your Honor, that's all the 22 questions I have. 23 THE HEARING EXAMINER: Thank you. 24 Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 56 1 EXAMINATION 2 By The Hearing Examiner: 3 Q. Mr. Engelbardt, there are a couple of 4 questions in my mind, some remarks you made earlier in 5 your testimony. You made some remark about surgery and 6 being late for an appointment and so forth? 7 A. Yes. 8 Q. Same-day surgery, could you explain a 9 little bit of that? I'm not sure why you brought that 10 up. 11 A. I have one-half inch kidney stone, and 12 before those stones, going to break it, the doctor 13 install stent between kidney and bleeder. 14 Q. Did you mention this was surgery you were 15 scheduled to have that day or something? 16 A. This is Friday before -- before the 17 weekend, and after weekend I start driving; so the day 18 where I have surgery, I completely, you know, dizzy and 19 I can't use any -- 20 Q. So this was like a day or so before you 21 were -- before the inspection or -- 22 A. Three or four days before the inspection, 23 yes. 24 Q. You made some remark that when you started Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 57 1 driving that day, you admitted you didn't fill out your 2 logbook? 3 A. Yes. My dispatcher knows my situation and 4 many times call my home and ask me for a favor, quick 5 deliver, and he says I got this Michigan for you, if 6 you interested. I said, yes, okay, I take it; so I 7 take my truck, go pick up the load. 8 Q. So when you mentioned you were late for an 9 appointment, you mean the delivery to Michigan or 10 something? 11 A. Actually, I go to sleep in the rest area, 12 and when I wake up, I'm late; so I just -- I not fill 13 out, because, truly, I'm so lazy for that day to fill 14 out those logbooks. I just don't even -- 15 Q. So, basically, you realized you were 16 running late, you didn't fill out the log -- 17 A. Yes. 18 Q. -- and you hit the road and that was 19 the -- when you say late for the appointment, that was 20 the delivery you were supposed to make for that day? 21 A. Yeah. 22 Q. I see. All right. I have no other 23 questions either. 24 Mr. Jones, do you have any? Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 58 1 MR. JONES: None, Your Honor. 2 THE HEARING EXAMINER: Thank you, Mr. 3 Engelbardt. You can take your seat, please. 4 (Witness excused.) 5 THE HEARING EXAMINER: I believe the only 6 other thing remaining would be any filings of briefs. 7 Mr. Engelbardt, we do allow each side an opportunity to 8 file something in writing about the case. That would 9 typically be done several weeks from now, because it 10 takes some time to get the transcript from the court 11 reporter about everything that was said. 12 Mr. Jones, are you interested in filing 13 any briefs in this case? 14 MR. JONES: Your Honor, you know, 15 depending on what Mr. Engelbardt's response is here, we 16 view this as a factual dispute, and we believe that the 17 record is clear and we would be willing to rely on that 18 record for the Commission's decision in this case and 19 feel that briefing would not add any more to the record 20 than what's already been provided, but if Mr. 21 Engelbardt decides to brief the issue, we would like to 22 have the same opportunity, but if he waives, we would 23 waive as well. 24 THE HEARING EXAMINER: All right. Mr. Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 59 1 Engelbardt, did you want to file anything, any comments 2 in writing about your situation? 3 MR. ENGELBARDT: My situation is I can't 4 lose my driver's license. That's all I ask. I can 5 afforded some fine by monthly, because it's impossible 6 for me to lose the driver's license. I support my 7 family. Only I work. 8 THE HEARING EXAMINER: So those are really 9 the only additional comments you wanted to make? 10 MR. ENGELBARDT: Yes. Only thing I ask, 11 just not losing driver's license. 12 THE HEARING EXAMINER: Okay. Thank you. 13 If there's nothing else that either side needs to 14 present or state, then this proceeding is closed. 15 Thank you both for attending. 16 (Thereupon, the hearing was concluded at 17 11:27 a.m.) 18 19 20 21 22 23 24 Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481 60 1 CERTIFICATE 2 I do hereby certify that the foregoing is 3 a true and correct transcript of the proceedings taken 4 by me in this matter on Monday, April 7, 2008, and 5 carefully compared with my original stenographic notes. 6 7 ____________________________ 8 Valerie J. Sloas, Registered Professional Reporter and Notary 9 Public in and for the State of Ohio. 10 11 My commission expires June 8, 2011. 12 (VJS-410) 13 14 15 16 17 18 19 20 21 22 23 24 Armstrong & Okey, Inc. Columbus, Ohio (614) 224-9481