IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, )

)

V. ) Case No.: 1704019023

)
_]EI""l-`"REY PE'I`ERSON, j

)

Defendant. _ )
Submitted: February 7, 2018
Decided: April 16, 2018

Jillian Schroeder, Esquire David JJ. Facciolo, Esquire
Delaware Department Of]ustice Minister & Facciolo LLC
Carvel State Building, 7fh Floor 521 North West Stteet
820 N. French Stteet Wihnington, DE 19801
Wilmington, DE 19801 Alfom@/for Defendam‘

Az'wmej/for the jfa¢e 0fDe/au/are

MEMORANDUM OPINION AND ORDER
ON DEFENDA.NT’S MOTION TO SUPPRESS

sMALLS, C.J.

FACTUAL AND PROCEDURAL HISTORY

On April 29, 2017, ]effrey Peterson (“Defen'dant”) Was arrested for the offenses of
Driving a Vehicle Under the lnfluence of Alcohol, (DUI), in violation of 21 De/. C. §4177;
Driving Vehicle at Unreasonable Speed or Imprudent Speed, in violation of 21 De/. C.
§4168(21); and Operating a Vchicle with lmproper Winclow 'I`int, in violation of 21 De!. C.
§4313(€). The facts Which gave rise to these proceedings indicate Defendant Was driving on
Naamans Road When Cpl. AndreW Pietlock (“Pietlock”) of the Delaware State Police pulled
him over for allegedly speeding Upon approaching Defendant’s vehicle, Pietlock detected a
moderate odor of alcohol and instructed Defendant to exit the vehicle in order to conduct
field sobriety testing. Subsequently, Pietlock arrested Defendant and charged him With the
above offenses

On October 24, 2017, Defendant filed this Motion to Suppress pursuant to Court of
Common Pleas Criminal Rule 12(b), to exclude field sobriety and breath test results.
Defendant argues Pietlock should not have administered the one leg stand field sobriety test
due to steel strut implants in his leg. Defendant avers the implants caused him to sway
during the test and he explained to Pietlock that he Was incapable of performing the test
properly. Furthermore, Defendant alleges the test Was administered on a Wet, uphill surface
Where severe fog Was beginning to accumulate

On February 7, 2018, a hearing Was held on Defendant’s Motion to Suppress.
During the motion hearing, Pietlock testified he Witnessed Defendant turn onto Naamans
Road, accelerate quickly, and continue traveling at a high rate of speed. Pietlock followed

Defendant’s vehicle and testified he had to reach a speed limit of eighty (80) miles per hour

to catch up to the vehicle. However, the speed recorded on the Motor Vehicle Recorder
(l\/IVR) in the police vehicle indicated his vehicle only reached a speed of fifty-two (52) miles
per hour, which is just above the fifty (50) mile per hour speed limit for roads in that
classification1 Pietlocl< also testified that once he initiated his overhead lights, Defendant
took longer than usual to pull oven Upon making contact with the Defendant, Pietlock
testified he detected a moderate odor of alcohol emanating from Defendants’ breath and
there was another person in the passenger side of the vehicle. Defendant stated he
consumed a couple beers and some Hennessey earlier that night Pietlock further testified
Defendants eyes appeared glassy and bloodshot. The other passenger was clearly intoxicated
and his behavior was erratic as detected by the MVR audio.

Pietlock instructed Defendant to exit his vehicle to perform field sobriety tests.
There was a discussion regarding Defendant’s ability to perform the field tests. Defendant
told Pietlock he had a fracture to his left leg and he was being treated for the injury. Pietlock
testified that Defendant advised him he could not perform the walk and turn test but,
voluntarily performed the balance test.

Notwithstanding this information, Pietlock administered the tests. He first
administered the balance test where he instructed the Defendant to lift his injured leg six (6)
inches off the ground for thirty (30) seconds Pietlock testified that Defendant failed the

one leg test by dropping his foot at seventeen (17) seconds and his arms moved away from

 

1 This difference in speed was not properly explained in testimony thus, there is a question regarding the
validity of the stop.

his body. Thereafter, Pietlock attempted to administer the walk and turn test. This test was
interrupted by the actions of the passenger.

Subsequently, Pietlock administered the finger dexterity test in which he testified
Defendant failed by not touching his fingertips. Ultimately, Defendant was given a Portable
Brcath "l"est (PB'[`), Which Pietlock testified he failed as well Based upon these test tesults,
Pietlock opined that Defendant was under the influence of alcohol and placed him into
custody. During cross-examination, Defense counsel questioned Pietlock regarding the
incline and fog conditions in the area where the field sobriety tests were administered

The Defense called Lynda Rae Kopishke, (“Kopishke”) a Forensic Nurse, to testify
on behalf of the Defendant in regards to his medical conditions.2 As a part of her testimony,
Kopishke referred to the medical records of Defendant which included an assessment of his
injuries3 Kopishke referred to the billing records in order to assess the amount of surgeries
he received. The Christiana Care Health Services report indicates the nature and extent of
surgeries and types of hardware that were implanted in Defendant’s leg Kopishl<e testified
this report indicates what is to be expected in terms of future disability. Kopishl<e also
referred to the Abbington jefferson Health document which indicated Defendant was
treated for Speech Therapy from August 2004 through October 2005.4 Furthermore,

Kopishke relied on an article from the American Academy of Orthopedic Surgeons to assess

 

2 Defendant’s Exhz`bz'z‘ 7, Kopishke’s resume.
3 Defendant’s Ex/Fz`bz'z‘ 2.
4 Id.

the nature of Defendant’s injuries.5 Kopishke also reviewed the MVR in preparation for her
testimony.

A report written by Kopishke opines that due to Defendant’s physical challenges,
Pietlock inadvertently set Defendant up for a probable failure of the standardized field
sobriety tests.6 'l`he report states on April 29, 2015, Defendant underwent surgery on his left
foot to repair his metatarsal bone in which a pin and a screw was internally placed in his
foot. Subsequently, Defendant was instructed to use an orthowedge shoe and no weight
bearing on his left foot. The anticipated recovery time was six (6) to eight (8) weeks,
including physical therapy.

The report further indicates that Defendant still wears a knee brace for support, uses
ice for swelling, and takes Ibuprofen for pain. In addition, Defendant continues to
experience pain in his left lower leg and was evaluated by an orthopedic surgeon The
medical documents submitted indicate Defendant was suffering from a chronic stress
fracture of the tibia and surgery was scheduled for june 3, 2016 to implant an intramedullary
nail fixation (rod and screws).7

Kopishke testified that Defendant walks with a wider base due to his injuries and has
a slight limp in his left leg Kopishke further testified that anytime a person is subject to
non-weight bearing on one leg for almost three (3) years, they will try to compensate on the
other leg, causing balance issues. Kopishke testified it would be difficult for Defendant to

exit the driver’s side of a vehicle because he would want to place weight on his right leg

 

5 Id.
6 Defendant’s Ex/yz`hz`t 3.
7 Id.

Kopishke observed on the MVR that when Defendant exited the vehicle and was standing
talking to the Officer, he was weight-bearing on his right side. Kopishke stated Defendant
continues to have balance issues and when asked to balance on one leg, Defendant will have
to1 place his leg down sooner than someone who did not have leg surgeries or implants.

f"urthermore, Kopishke set forth in her report that at the time of Defendant’s arrest,
he was dealing with multiple medical problems, including speech challenges Under stress,
Defendant would need additional time to formulate words and would seem less articulate.
Kopishke testified that this was evident in the MVR, which is reflected in the counting test
when Defendant counted slower in order to inhibit stuttering. Kopishke’s concluded that
Defendant was inadvertently set up for failure when performing field sobriety tests based on
his medical issues.

During cross-examination, the State pointed out and questioned Kopishke about the
fact that the arrest for DUI was over two (2) years after surgery on Defendants foot, and one
(1) year after the rod and screws were placed in his left leg. ln addition, Defendant
discontinued physical therapy in July of 2016. Moreover, Kopishke’s report indicated that
by ]une 15, 2016, Defendant was riding a stationary bike, stopped wearing his knee
immobilizer and played basketball at half speed. Kopishke responded by indicating that
though Defendant was improving he still had a pain level of three (3) and would require
additional surgeries. Kopishke further testified that after seventeen (17) seconds of the one
leg stand test, Defendant was wobbling and raising his arms due to his balance issues.
During re-direct, Kopishke testified that Defendant’s impairment is most likely permanent

At the conclusion of the Motion Hearing, the matter was taken under advisement

LEGAL STANDARD

To justify a vehicle stop, the officer must be able to point to objective facts which
would support “reasonable articulable suspicion, taken together with rational inferences
from those facts, which reasonably warrant the intrusion.”8 “The Court must examine the
totality of circumstances surrounding the situation as viewed through the ‘eyes of a
reasonable trained police officer in the same manner or similar circumstances, combining the
objective facts with such an officer's subjective interpretation to those facts' and determine
reasonable articulable suspicion.”9

On a motion to suppress, the State must establish, by a preponderance of the
evidence, that Defendant’s arrest was supported by probable cause.10 To satisfy the
probable cause standard for a DUI arrest, the state “must present facts which suggest, when
those facts are viewed under the totality of the circumstances, that there is a fair probability
that the defendant has committed a DUI offense.”11 This totality consideration is based on
“the factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.’712 ln reaching its decision, the Court must analyze the facts
based upon what the arresting officer knew at the time the decision was made to take the

Defendant into custody.

 

3 le‘e a sze, No. 1210019022, 2014 WL 12684290, at *4 (Del. Com. Pl. Feb. 12, 2014); .S`ee Woo@/ a .)"tate,
765 A.2d 1257, 1262-64 (Del. 2000).

9 Id.

10 jmte a Andermn, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010).

11 l.ej%bare z). .fz‘afe, 19 A._’>d 287, 293 (Del. 2011).

12 §z‘az‘€ v. C¢zm'omz, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008) (quoting Stal‘e a Mczxwe//, 624 A.2d 926,
928 (Del. 1993)).

The factors here include the Defendant was pulled over for allegedly speeding, the
officer detected a moderate odor of alcohol emanating from the Defendant's person, he had
glassy eyes, and his speech was slurred. Therefore, the officer had sufficient facts to request
the Defendant to perform field sobriety tests.

DISCUSSION

Defendant argues the manner in which the field sobriety tests were administered by
Pietlock did not take into consideration the serious physical injuries of Defendant and the
road and weather conditions. Defendant also argues the injury to his leg affects his stability
to maintain his balance and his history of stuttering inhibits his speech. In addition, the area
where the field sobriety tests were performed was on an incline and there was an increasing
amount of fog Therefore, Defendant argues the field sobriety tests must be suppressed; the
basis of the stop is questionable because of being only pulled over for speeding; and there
was an insufficient basis to administer a PBT.

The State argues Defendant admitted to Pietlock that he had consumed beer and
Hennessey earlier that night In addition, Defendant failed the finger dexterity and PBT test
Furthermore, the State alleges the one leg stand test was properly administered by Pietlock.
The State argues standard field sobriety tests are not required for a finding of probable cause
under Lej%bwe a 5!¢1!€.13 The State alleges that there is more than enough here for probable
cause when excluding the one leg stand test This includes the traffic violation, (Speeding),
the moderate odor of alcohol, admission to drinking, bloodshot glassy eyes, the finger

dexterity test and failed PBT. The State argues the facts under the totality of the

 

13 19 A.zd 287 (Dei.super 2011).

circumstances support a basis to find probable cause to place Defendant under arrest for
DUI.

In mee a Mz`nz'i'z‘ero, the Court excluded the field sobriety tests because the officer
failed to comply with the National Highway Traffic Safety Administration (NHTSA)
, ,,,,guidelines,in,that,lwhere,therefs,an,indication,of,some,physical,disability,,that,test,is,not,to,_,i,
be performed.”14 In julie a Degmng`z'i, the Court did not consider the results of . .. the one-
leg stand test because [the officer] had Defendant perform the tests even though he
informed her of physical injuries.15 Furthermore, in italia a I<z`ng, the Defendant informed
the officer he suffered from a back injury prior to the officer conducting the field tests, in
which the Court disregarded [the one leg stand] test when assessing whether probable cause
existed to arrest Mr. King for DUI.16 Finally, in Szzzfe a Am{ermn the Court held, “Given that
Mr. Anderson's knee injuries confound the results of the ‘walk and turn’ and the ‘one leg
stand’ tests, the Court will not consider them in its probable cause analysis.”17

The NHTSA 2015 Manual states that the one leg stand test is sixty-five percent
accurate and requires a reasonably dry, hard, level, and non-slippery surface. In addition, the
NHTSA Manual states that recent field validation studies have indicated that varying
environmental conditions have not affected a subject’s ability to perform this test

Defendant has undergone two (2) surgeries and has rods and screws placed inside his

left leg During the years of 2013 through 2016, Defendant was unable to place full weight

 

14 firm v. Mz'nz`n‘em, 2006 WL 3844201, at *4 (Del. Super. Ct. Dec. 21, 2006).

15 Sl‘czfe w. Deg:t’gorz`z`r, No. 1305007734, 2014 WL 3805799, at *fn. 2 (`Del. Com. Pl. Aug. 1, 2014).
16 cftaz‘e a Kz'n<g, 2007 WL 1153058, at *3 (Del. Super. Ct. Mar. 30, 2007).

17 fine a Ami€rwn, 2010 WL 4056130, at *4 (Del. Super. Ct. Oct. 14, 2010).

8

bearing on his left leg and suffered a subsequent bone fracture. Due to Defendants left leg
injury, he was unable to maintain balance during the one leg stand test. It is clear from the
facts that Defendant explained to Pietlock he had a leg injury and may not be able to
properly stand on one leg This is supported by testimony and the MVR18. Therefore, the
one leg stand field sobriety test is excluded in the probable cause analysis

The final issue is whether the PBT is sufficient standing alone. The Defendant’s
observation on the MVR was steady and his speech was clear and concise. When these
factors are considered with the other facts, there is no basis to support the officer’s decision
to administer the PBT, and its results are excluded ln addition, there is no statistical
correlation between the finger dexterity test and impairment The officer’s reliance on this
test is misplaced

There is an issue if the Defendant was speeding due to conflicting testimony and the
speedometer on the MVR. While the validity of the arrest is clearly an issue, l need not
address that issue because of my conclusion that probable cause did not exist for the arrest

CONCLUSION

For the reasons discussed above, l find the administration of the one leg stand field
test to be unreasonable due to the Defendant’s injuries and it is not considered in the
analysis of probable cause. There is no weight given to the finger dexterity test and little
weight given to the Defendant’s stuttering. Under the totality of the circumstances, l find

that the officer lacked probable cause to arrest Defendant for DUI.

 

18 State’s EX/yz`bz`f 7.

ACCORDINGLY, the Defendant’s Motion to Suppress is GRANTED. The Clerk

shall schedule these matters for trial.

n 18 80 s %6/ I&%

Ale _j. Smallsv
%;hief]udge

10

