 IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE

                      IN AND FOR NEW CASTLE COUNTY



STATE OF DELAWARE,                        )
                                          )
                                          )
              v.                          )      Cr.A. No. 1306018766
                                          )
                                          )
THOMAS J. SANSONE,                        )
                                          )
              Defendant.                  )


                              Submitted: February 25, 2014
                                 Decided: July 11, 2014


Danielle Brennan, Esquire                               Richard B. Ferrara, Esquire
Deputy Attorney General                                 Ferrara & Haley
Carvel State Office Building                            1716 Wawaset Street
820 N. French Street, 7th Floor                         Wilmington, DE 19806
Wilmington, DE 19801                                     Attorney for Defendant
 Attorney for State


            DECISION ON DEFENDANT’S MOTION TO SUPPRESS

       Thomas J. Sansone, (hereinafter “Defendant”) was arrested on June 20, 2013, by

the New Castle County Police and charged with Driving While Under the Influence of

Alcohol; three (3) offenses of Failure to Stop for a Stop Sign; Drinking While Driving;

Failure to Have Possession of Insurance and Registration Card; and Failure to Signal.

Sansone filed this motion to suppress the blood analysis on the basis that the warrant

obtained to draw the blood violates the implied consent provisions of 21 Del. C. 2740, et
al., and the holding in State v. Betts, 2009 WL 388952 (Del. Super. 2009). The Court

conducted a hearing and thereafter ordered post-hearing briefing on the matter.


                                             FACTS


       The facts which are not in dispute as testified to by Officer Shelhorst of the New

Castle County Police Department. He stated that on the afternoon of June 20, 2013, he

was working pro-active patrol and traffic management in the area of Richardson Park. At

approximately 6:40 p.m., he observed a vehicle make a right turn onto Glenrich Avenue

without using its turn signal. The vehicle also disregarded a stop sign at the same

intersection. Shelhorst followed the vehicle and observed several other traffic violations.

Shelhorst was operating an ATV without emergency lights, which created difficulty in

stopping the vehicle. He had to bang on the back of the defendant’s vehicle in order to

get his attention. Eventually, the defendant pulled his vehicle to the right side of the

roadway with both right tires resting on the lawn of the adjacent residence.

       Upon approach, Shelhorst observed an open container of beer in the defendant’s

cup holder. He also noticed that the defendant’s eyes were bloodshot and glassy and

detected an odor of alcohol.       During their interaction, the defendant admitted to

consuming between 6 and 10 beers that afternoon. Shelhorst attempted to conduct field

sobriety testing, however, the defendant refused such testing, allegedly stating, “I would

fail them.” The defendant was then offered a portable breath test, which he also refused.

Shelhorst advised the defendant that he was going to transport him back to police

headquarters to administer an Intoxilyzer test, to which the defendant allegedly replied “I


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would fail that test.” The defendant was then taken into custody. The defendant was

transported to New Castle County Police headquarters by Corporal Purse. At that time,

Shelhorst drafted a warrant and responded to Justice of the Peace Court 11, where the

warrant was signed by a Magistrate to draw blood. Shelhorst then returned to the New

Castle County Police Department where he again made contact with the defendant.

           During cross examination, Shelhorst confirmed that it was New Castle County

Police standard operating procedure, to read the implied consent paragraph to all subjects

who refuse the intoxilyzer test. Shelhorst testified that he did read the defendant the

implied consent paragraph, after he returned to the station after securing a warrant. The

defendant subsequently refused the intoxilyzer test. After defendant’s refusal, Shelhorst

had the phlebotomist draw his blood.




                                                   ANALYSIS


           Sansone brings this motion pursuant to Court of Common Pleas Civil Rule 12 to

suppress the blood results. Sansone argues that the blood extraction from his body and

subsequent analysis is not admissible because pursuant to 21 Del. C. § 2740 et al., and State

v. Betts1. He alleged that when Officer Shelhorst read him the implied consent provision

and he refused the test, such refusal was binding and the Officer could no longer proceed

with the blood extraction. He further argues that the prohibition created in the statute is

not changed or modified in any way because the Officer obtained a judicial search warrant

prior to the time he was read the implied consent provision.
1
    State v. Betts, 2009 WL 388952 (Del. Super.)

                                                    3
       The State argues that Betts does not apply and 21 Del. C. § 2740 is not applicable

under these facts because the Officer obtained the search warrant prior to Sansone’s

refusal under the statute.

       On a motion to suppress, the burden is on the State to establish by the

preponderance of the evidence that the challenged search or seizure conformed to the

rights guaranteed by the United States Constitution, the Delaware Constitution and

Delaware statutory law. State v. Anderson, 2010 WL 4056130 (Del. Super. 2010).

       Under 21 Del. C. 4177(a)(1), “[n]o person shall drive a vehicle . . . [w]hen the

person is under the influence of alcohol.” Under 4177(c)(5), “under the influence’ shall

mean that the person is, because of alcohol . . . less able than the person would ordinarily

have been, either mentally or physically, to exercise clear judgment, sufficient physical

control, or due care n the driving of a vehicle.”

       Section 2740(a) of Title 21 provides that, “Any person who drives . . . within this

State shall be deemed to have given consent . . . to a chemical test or tests of that person’s

blood for the purpose of determining the presence of alcohol or a drug or drugs.” Such

testing shall be required of any person where the Officer has probable cause to believe the

person was driving a vehicle, in violation of 21 Del. C. § 4177. Under § 2741, a person

may refuse the test and under § 2742 where such person refuses, the test shall not be

given but such refusal shall be reported to the Division of Motor Vehicles.

       The Superior Court in State v. Betts, 2009 WL 388952 (Del. Super.) held that when

reading § 2741 and § 2742 together:

                       “The police have two routes they can choose when a
               driver refuses to submit to a chemical test. One route is for the

                                              4
                 officer to take the test and not discuss any penalties or
                 consequences for refusal found in § 2741(a). In the event the
                 driver has refused the officer’s request, the officer may still go
                 ahead and take the test by invoking the statute set out in the
                 second sentence of § 2742(a) and laid out in full by § 2740(a).
                 The officer is empowered to do this so long as he or she has
                 probable cause to suspect a DUI and has not mentioned the
                 penalties. In this scenario, the driver’s refusal is inconsequential
                 to the ability of the police to conduct chemical testing.

                 However, in the alternative, an officer can also choose to
                 inform a driver who refuses to submit to chemical testing of the
                 penalty of refusal. If, upon learning of the penalties the driver
                 allows chemical testing, the test may be taken. However, if the
                 driver still refuses to take the test after the officer recites the
                 penalties, that officer must not take the test and can no longer
                 use probable cause as a reason to do so. In sum, when penalties
                 are discussed by the police with the suspected impaired driver,
                 the driver is then empowered to refuse and that refusal becomes
                 binding upon the officer.

                 Whichever option the officer employs, taking the test upon
                 probable cause and no mention of the revocation consequences,
                 or not taking the test because the driver still refuses testing after
                 being informed of the revocation consequences, the officer,
                 must certify certain information to the Secretary of
                 Transportation. The information certified reflects the statutory
                 dichotomy between the two options available to the police.
                 That certification process also further demonstrates there is a
                 bright line separating the two options the police have when
                 confronted with a refusal to submit to a chemical test.”

        The facts here present a situation which is different than those present in Betts.

Here, Officer Shelhorst before the defendant’s refusal, applied for a search warrant to

take blood as required under Missouri v. McNeely.2                 Applying the Betts analysis to these

facts when the Officer made the application for the warrant, he elected to proceed with

2
  Missouri v. McNeely, 133 S. Ct. 1552, 2013 U.S. Lexis 3160 (Decided April 17, 2013) holding that a
warrantless search of a person, where the search involved a completed physical intrusion beneath the skin and
into the person’s skin and into the person’s veins to obtain a blood sample to use as evidence in a criminal
investigation is prohibited except where there exists exigent circumstances. Whether exigency exists is to be
determined case-by-case based upon the totality of the circumstances.

                                                       5
the forced blood draw. The second option was no longer available to the Officer nor the

defendant, because the application for the search warrant clearly indicates an intent by the

Officer to proceed with the forced chemical testing. In this instance, if the warrant is

granted, the Officer can proceed to extract the blood.          In the event the warrant

application is denied, the State is left to proceed on the facts they have developed at that

point, and the State is not permitted to go back to an alternative position which involves

the defendant’s refusal.

         Thus here, when the Officer had made application for the warrant, the Officer is

prevented from reading the impaired consent provision with penalties for refusal. Any

further discussion on this issue of refusal between the Officer and the defendant is not

relevant to the analysis of the election of refusal.

         Accordingly, the motion to suppress the blood draw and analysis is denied. Clerk

shall schedule the matter for trial.

                                              SO ORDERED



                                              ________________________________
                                              Alex J. Smalls
                                              Chief Judge
Sansone-DECISION July 2014




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