SHAMOKIN - Saying he's accustomed to DUI cases with "a lot more evidence," Magisterial District Judge John Gembic III nonetheless bound Dr. Raymond Kraynak's case to court following an hour-long preliminary hearing Tuesday.
Gembic made the distinction between the "prima facia" - enough evidence - requirement of the preliminary hearing and that of proof beyond a reasonable doubt that a jury would have to determine.
Kraynak, a practicing physician with offices in Ashland, Mount Carmel and Shamokin and a member of the Mount Carmel Area School Board, was defended by Shamokin attorney James Zurick, who said police had little evidence to charge his client other than he took 12 steps instead of nine and left two-inch gaps when doing a heel-to-toe field sobriety test.
Kraynak was charged by Coal Township Patrolman Matthew Henrich with one count of driving under the influence of alcohol in connection with a May 26 DUI checkpoint on Route 61 near Sam Bressi Motors just east of Shamokin.
Kraynak told police he stopped at the checkpoint around 11 p.m. to offer medical assistance because he thought there was an accident. But police said his speech was slurred, he was staggering and that he failed field sobriety tests. Also, Kraynak that night refused to take a chemical blood test.
Three cops testify
Northumberland County Assistant District Attorney Michael Toomey called three witnesses, the first being Coal Township Police Officer Terry Ketchem, checkpoint coordinator.
Ketchem testified that when checkpoints are set up, signs measuring 4-feet square that say "Sobriety Checkpoint" and "Be Prepared to Stop" in reflective markings are erected.
Ketchem testified that he saw Kraynak being escorted to him by Sunbury police officer Stephen Bennick.
"I did detect an odor of alcohol on his breath and he was swaying as he was walking," Ketchem testified.
He said Kraynak asked him to show him some professional courtesy since he was there to render aid for the accident.
During cross-examination by Zurick, Ketchem admitted he did not see Kraynak drive his vehicle that night.
Zurick also asked how Kraynak got from the northbound lane where he parked to the southbound lane where the tests were conducted.
"He was escorted over by Officer Bennick, and had to go over the barrier to do so," Ketchem said about a concrete highway divider. Ketchem said he didn't know if Kraynak got over the barrier unassisted.
Officer: He was staggering
Bennick testified that he was the first officer to encounter Kraynak.
"As he approached me, he was staggering and I detected an odor of an alcoholic beverage on his breath," Bennick testified.
He said when he later moved Kraynak's vehicle out of the line of traffic, it was still running with its headlights on and the manual transmission in his green Mustang convertible was in neutral with no parking brake engaged.
Asked about escorting Kraynak to Ketchem, Bennick said he did assist him because "I felt he was intoxicated and did not want him to hurt himself."
During cross-examination, Zurick questioned Bennick about a statement he made to Kraynak while escorting him.
"Did you say, 'We are going to consider you to be under the influence?'" Zurick asked.
"Yes," Bennick answered.
"Then if you made the determination, why didn't you conduct the field sobriety tests?"
"He was handed over to the officers who had the jurisdiction at the checkpoint," Bennick answered. "If the checkpoint was in Sunbury, I could have."
Bennick also testified under cross-examination that although he did see Kraynak drive, he was not driving in a dangerous or erratic manner. He said he did not witness the field sobriety tests.
Heinrich, who administered the tests, testified about the extra spacing in Kraynak's heel-to-toe test and that he took too many steps. He said he bent his leg instead of keeping it straight in a one-legged standing test.
During Zurick's cross-examination, Henrich said there was no video of the field sobriety tests.
Zurick asked Henrich if Kraynak informed them of any medical conditions.
"He mentioned that he had a bad back, but he consented to taking the tests," Henrich said.
Evidence 'truly lacking'
During his summation, Zurick told the court there is a lack of evidence.
"There was no evidence of any erratic driving," Zurick said. "There was no swaying when he did the tests, but he mentioned that he had a bad back, so the tests shouldn't have been conducted anyway. There was also no evidence that Dr. Kraynak was given a preliminary breath test.
"The charges were filed because he took 12 steps instead of nine and because of two-inch spaces in between steps," he continued. "The evidence is truly lacking."
"There is plenty of evidence to bind the matter over to court," Toomey replied. "There were four-foot high reflective signs that are marked for a DUI checkpoint. The defendant came over to an officer, staggering and slurring his speech. He couldn't follow the instruction of the tests he consented to take and would not take the blood test."
Kraynak remains free on his own recognizance and was ordered to appear for plea court on Oct. 1, in Sunbury, at which time he could either plead guilty or no contest, or seek a trial by pleading not guilty. Zurick said that it is the client's decision if the case goes to trial.
(8/21/12)