IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY
STATE OF DELAWARE * Case No. 1308025330
* Cr.A. No. 13090315 & 13090316
v. *
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SHAWN ELLIOTT, *
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Defendant. *

Upon Defendant ’s Motion to Suppress
Submitted: January 15, 2014
Motion Denied: February 2, 2014
Motion to Reargue: February 3, 2014
Submitted: February 12, 2014
Decision: April 1, 2014

Defendant ’s Motion is Dem`ed

Zachary George, Esquire, Department of Justice, 102 West Water Street, Dover,
Delaware, 19904, Deputy Attorney General for the State of Delaware.

John R. Garey, Esquire, 48 The Green, Dover, Delaware 19901, Attorney for the
Defendant.

Reigle, J

The defendant, Shawn M. Elliott, was charged with Driving a Vehicle under the
Influence of Alcohol ("DUI")I and lnattentive Driving.z Mr. Elliott, through counsel,
moved to suppress two pieces of evidence collected after a police officer responded to the
scene of a motor vehicle accident. A hearing was held on January 7, 2014. First, Mr.
Elliott moved to suppress the results of a Portable Breath Test ("PBT") on the grounds
that there was insufficient reason to collect this evidence from him. During the hearing,
the State agreed that the PBT results should not be introduced at the hearing or trial, on
other grounds.

Next, Mr. Elliott moved to suppress the results of the intoxilyzer test, which was
conducted after he was removed from the scene on the grounds that the officer failed to
have "probable cause" to seize him on the belief that he was driving under the influence
of alcohol. The Court reserved decision and additional argument was submitted in
writing by counsel on January 15, 2014. The Court denied the Motion to Suppress on
February 2, 2014.

The matter was scheduled for trial on February 3, 2014. On that date, the
defendant made an oral motion to reargue, which the Court heard and additional time was
given for counsel to submit further written argument. The trial was continued. More
letters were submitted on February 10, 2014 and February 12, 2014 by both counsel.
This is the Court’s final decision denying the Motion to Suppress.

Facts
Trooper Daniel Blomquist of the Delaware State Police Department testified at

the suppression hearing that he had been an officer for three years. He testified that on

‘ Dei.code Ann. m. 21 § 4177(a)(i)
2 Dei.code Ann. tit 21 § 4176(1>).

August 30, 20l3, sometime after 8:00 p.m., he responded to the scene of a motor vehicle
accident near the intersection of South State Street and Rising Sun Road in Kent County,
Delaware. Upon arrival, he saw both motor vehicles off of the roadway and both drivers.
Mr. Elliott was standing next to his Jeep on his cellular phone and Ms. Davis was near
her passenger vehicle. Trooper Blomquist identified both drivers during his testimony.
He stated that he checked with Mr. Elliott and learned that he was not injured and moved
on to Ms. Davis. She reported that Mr. Elliott had rear-ended her vehicle at a yield sign.
She also told the officer that Mr. Elliott smelled of alcohol. Trooper Blomquist had not
smelled alcohol during his initial contact with Mr. Elliott but returned to him and testified
that he smelled a faint odor of alcohol while he stood twelve inches away. Upon inquiry
by the officer, Mr. Elliott admitted to his consumption of alcohol, specifically scotch and
water, during a time frame that began at five o’clock and ended prior to him driving the
vehicle shortly before the accident, or around eight o’clock. He did not report an amount
consumed. In addition, Trooper Blomquist testified that Mr. Elliott’s appearance was
orderly, his face and speech were normal, but that his eyes were bloodshot and glassy.

At this point, Trooper Blomquist had the defendant perform several field sobriety
tests. First, he asked him to say the alphabet starting with the letter "E" and ending with
the letter "P." Mr. Elliott performed this test correctly. Second, he asked him to count
from the number "63" to the number "47" backwards. Mr. Elliott counted backward
correctly until he skipped "‘48" and went to "49", at which time he went back and
correctly stated "48" and "49." During cross-examination, Trooper Blomquist testified
that he failed to complete the test perfectly, but admitted that it was the only mistake

made during this test. He also testified that during his training, he was taught to look for

incorrect starts, stops and transposed numbers during a counting test. He agreed that Mr.
Elliott made none of those mistakes; nevertheless he missed a number and he considered
this one of the factors of impairment.

Trooper Blomquist testified that he was trained on the use of the horizontal gaze
nystagmus test ("HGN") at the Delaware State Police Academy and that he was certified
to perform such tests. He testified that Mr. Elliott exhibited no clues during this test that
indicated impairment and that he passed this test. No explanation was provided by the
Trooper for Mr. Elliott’s lack of clues on the HGN test.

Trooper Blomquist had Mr. Elliott perform a walk and turn test. He used an
imaginary line because there was no line painted on the roadway where the test was
perforined, which was South State Street. He could not recall if the road had a slope, but
on cross-examination, agreed that there was a crest of a hill nearby. He asked Mr. Elliott
to take nine steps, turn and walk nine steps back. Trooper Blomquist testified, that
walking heel to toe, Mr. Elliott missed one step. He also testified that he turned the
wrong direction and did not maintain his pivotal foot on the ground because he lost his
balance. Trooper Blomquist characterized his performance on the test as a failure
because, although he substantially completed it, he exhibited three out of eight clues.

Trooper Blomquist had Mr. Elliott perform a one leg stand by instructing him to
hold his foot six inches above the ground and to count. He testified that Mr. Elliott did
not keep his leg high enough and that he put his foot down early, but that he otherwise
substantially completed this test.

On cross-examination, Trooper Blomquist characterized the one leg stand and

walk and turn as good but not perfect, and the HGN tests as passed and he agreed that

these three tests were recommended by the National Highway Traffic Safety Association
("NHTSA").
Arguments

Defense counsel argued that there was insufficient "probable cause" for Trooper
Blomquist to take Mr. Elliott into custody. He asserted that there was insufficient basis
for the officer to believe that the defendant was under the influence of alcohol while
driving. He argued that the smell of alcohol was faint, the one leg stand and walk and
turn tests were either passed or performed very close to correctly or administered
improperly and that the HGN test resulted in no clues indicating impairment. He argued
that under State v. Pratt, 3 an odor of alcohol on the breath of a motorist plus the mere
existence of an accident did not provide probable cause to an officer. He also argued that
the motor vehicle accident should not be considered because the officer did not testify
that he considered this factor in his determination of probable cause.

The State responded there were sufficient factors for a finding of "probable
cause" by the officer under the "totality of the circumstances" test set forth in State v.
Maxwell. 4 The State submitted that Mr. Elliott was involved in a motor vehicle accident,
had bloodshot and glassy eyes, an odor of alcohol, an admission of drinking alcohol and
mistakes on the counting test. The State submitted that mistakes were made on the one
leg stand and the walk and turn tests. The State also cited State v. Bease§ to support its

position that probable cause existed in a similar factual scenario.

3 C.A. 84-07-0l37 (J. Trader, August l5, l984)(submitted as part of the re-ai'gu_inent).
4 624 A.2d. 926, 928 (Del. 1993).
5 884 A.2d. 496 (i)ei. 2005)

Additionally, the Court heard argument regarding the recent Delaware Supreme

Court case, L'efebvre v. State,6 which was familiar to both counsel.
Discussi0n

An officer must possess "probable cause" that an offense of Driving under the
Influence has been committed to remove a defendant from the scene to conduct further
tests.7 The determination of "probable cause" is a legal question for the Court to
determine and it is not limited nor embellished by a police officer’s testimony regarding
the factors that he considered to form his belief that probable cause existed.s

A police officer has "probable cause" to believe a defendant has driven under the
influence of alcohol when he possesses information which would warrant a reasonable
man to believe that such a crime was committed. In order to establish probable cause, the
State must present facts which viewed under the "totality of the circumstances"
demonstrate that there is a fair probability that the defendant has committed a crime.9

In Lefebvre, the Court discussed an evaluation of field sobriety tests performed
correctly by a defendant in a Driving under the Influence case in the overall "totality of
the circumstances." The Court used a chronological approach and essentially held that
the determination that probable cause existed could not be undone by later field sobriety
tests that were successfully performed by the defendant. 10 The logic is essentially that
once the milk is spilled; it cannot be undone.

The Trooper’s report of no clues on the HGN test is perplexing. This is a test that

is frequently used by police officers and touted by NITSA as a valid and verified test.

‘ 19 A.zd. 287 (Del. 2011).

7 See generally Del.Code Ann. tit. 21 § 2740.
8 See generally Maxwell.

9 State v. Maxwell at 930 (citatz`ons omittea§.
‘° Lefebvre ar 295.

The defense argues that the lack of clues on the HGN test and the successfully completed
field sobriety tests outweigh the other factors and under the "totality of the
circumstances" test; there was no showing of probable cause. This is a good argument.
However, it appears that under the holding in Lefebvre, the Court must go back and view
the "totality of the circumstances" prior to the field sobriety tests to see if the officer
possessed probable cause, at that poinl‘. If he did, then further field tests are essentially
irrelevant for consideration in a probable cause hearing.“

In this case, the officer testified to several factors that he possessed, prior to the
field sobriety tests. Trooper Blomquist observed a driver, who reportedly rear-ended
another driver at a yield sign on a clear day, when it was not yet dark. He charged him
with inattentive driving. In addition to the inattentive driving and resulting motor vehicle
accident, he also possessed indicia of alcohol use by smell and appearance and admission
of alcohol consumption shortly before driving. In Bease, 12 the Court held that an odor of
alcohol, bloodshot and glassy eyes, rapid speech and a motor vehicle violation was
sufficient to find "probable cause." In Pratt, 13 the Court held that an odor of alcohol and
a motor vehicle accident which showed impaired driving was sufficient to find "probable
cause." F or these reasons, this Court finds that there was sufficient "probable cause" to
believe that Mr. Elliott had driven under the influence of alcohol.

Decision
The Court concludes that there was sufficient "probable cause" under the "totality
of the circumstances" test for the police officer to seize the defendant for driving under

the influence of alcohol prior to the completion of any field sobriety tests. Therefore, the

n Lefebvre at 295.
12 Bease at 499.
13 Prarr at 3.

9

field sobriety tests are not to be considered as a part of the "totality of the circumstances’
analysis in determining probable cause, but may be used during trial. The defendant’s
motion to suppress any evidence as a result of his seizure by the officer, including the

results of an intoxilyer, on the grounds of lack of probable cause to arrest is DENIED.

iris so oRi)ERED.   
l al

The Honorable Anne Hartnett ci ile

