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

STATE OF DELAWARE,
Case No. 1510000036

V.

DEREK C. DIVER,

\_/\/\,/\/\_/\/\_/

Defendant.
Submitted: April 18, 2017
Decided: ]une 13, 2017
William Raisis, Esquire Joe I-lurley, Esquire
Deputy Attorney General 1215 King Street
820 N. French Street, 7th Floor Wilmington, DE 19801
\X/ilrnington, DE 19801 Az‘fome))for Defendant

A!tome}for fhe Ftate of De/au/are
GPINION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS
The defendant, Derek C. Diver (“Defendant”), Was charged by Inforrnation With
Driving Under the Influence (“DUI”), in violation of 27 De/. C. § 4777(a), Driving While
Suspended, in violation of 27 De/. C. § 2756(a), Failure to Have Insurance Identif`ication, in
violation of 27 De/. C. § 2788@>)(7), and Spe eding, in violation of 27 De/. C. § 4769(b)
following an arrest on October 1, 2015. The Defendant filed a motion to suppress the initial

stop and subsequent arrest. On April 18, 2017, the Court held a hearing on Defendant’s

Motion, and heard testimony from Corporal Michael Cahall1 (“Corporal Cahall”), the
arresting officer. The State introduced a Moror Vehicle Recording (“MVR”) of the initial
stop. The Defendant introduced several photographs of the area where he was stopped. At
the conclusion of the hearing, the Court reserved decision. For the reasons stated below,
Defendant’s Motion to Suppress is hereby DENIED.

FACTS

Corporal Cahall testified that on October 1, 2015, while stopped behind Defendant at
a red light on Kirkwood Highway, he observed Defendant accelerate from the light at a high
rate of speed once it turned green. Corporal Cahall testified that he followed the Defendant
westbound on Kirkwood Highway, and observed Defendant slightly sway within his lane of
travel. Corporal Cahall testified that he paced Defendant with his marked police vehicle, and
measured his speed at 55 mph in a 45 mph posted speed zone. At approximately 1:21 a.m.,
when Defendant made a left onto Delaware Park Drive, Corporal Cahall activated his lights
and initiated a traffic stop.

Corporal Cahall testified that when he approached Defendant’s vehicle, he noticed
Defendant’s eyes were extremely bloodshot and glassy. Corporal Cahall also detected a
moderate odor of alcohol emanating from Defendant’s breath. Corporal Cahall requested
Defendant’s registration, driver’s license, and proof of insurance Defendant stated he did

not have his driver’s license, but was able to provide Corporal Cahall with his passport

 

‘ Corporal Cahall has been employed with the Delaware State Police Department since 2004, and is
responsible for enforcing traffic regulations Corporal Cahall has received training in DUI detection and is
certified by the National I-lighway Traffic Safety Adrninistration (“NI-ITSA”) to administer field sobriety tests.

Defendant also stated the vehicle belonged to his father, and he was unable to locate the
vehicle’s insurance.

After Corporal Cahall checked Defendant’s identification, he asked Defendant to step
out of the vehicle in order to conduct field sobriety tests. Defendant was able to exit the
Vehicle with no difficulty Defendant told Corporal Cahall that he was coming from work,
and had one beer prior to leaving. Corporal Cahall testified that Defendant’s speech was
mumbled. Corporal Cahall then escorted Defendant to a nearby parking lot2 to conduct the
field sobriety tests, outside the view of the MVR. Corporal Cahall testified that he decided
to conduct the field sobriety tests in the parking lot because it was a flatter surface, and the
roadway where Defendant was stopped was slanted with a downhill decline.

After escorting Defendant to the parking lot, Corporal Cahall administered the
alphabet test. Corporal Cahall asked Defendant to recite the alphabet from the letter G to
the letter T, which Defendant completed as directed. Corporal Cahall then administered a
counting test, and asked Defendant to count backwards from 65 to 42. Defendant was
unable to complete this test in that he missed the number 49 and stopped counting After
the counting test, Corporal Cahall administered the Horizontal Gaze Nystagmus (“HGN”)
test. Corporal Cahall testified that he detected six clues out of a possible six, which indicated
impairment

Next, Corporal Cahall administered the Walk-and-Turn test. Corporal Cahall

testified that during the test Defendant: (1) lost his balance during the instructional phase; (2)

 

2 The parking lot where Corporal Cahall escorted Defendant is adjacent to Delaware Park Drive, near the area
where the traffic stop occurred fee Defendant’s Exhibit 1, 2, and 4.

started the test too soon; (3) failed to walk heel-to-toe; (4) stepped off the line; and (5) took
the incorrect amount of steps. Corporal Cahall testified that, thereafter, he administered the
Gne-Leg Stand Test. Corporal Cahall testified that Defendant failed the test in that he: (1)
swayed throughout the test; (2) used his arms for balance; (3) hopped during the test; and (4)
put his foot on the ground before the test was complete Thereafter, Corporal Cahall
administered the Portable Breathalyzer Test (“PBT”) at 1:34 a.m. Corporal Cahall testified
that Defendant failed the PBT. Based upon the results of these tests and observations,
Defendant was arrested for driving under the influence of alcohol.

During cross-examination, Defendant introduced several photographs of the
adjoining area where Defendant’s vehicle was pulled over by Corporal Cahall. The area
depicted in the photographs is a hill going from the roadway to the flat surface where the
field sobriety tests were administered Corporal Cahall testified that the Defendant walked
up the hill area without difficulty

DISCUSSION
I. Reasonable and Articulable Suspicion

Defendant brings this motion to suppress challenging both the initial stop and
subsequent arrest With regard to the initial stop, Defendant contends Corporal Cahall did
not have reasonable and articulable suspicion to believe Defendant had committed a crime.
The Fourth Amendment to the United States Constitution, which applies to the states
through the Fourteenth Amendment, protects people against unreasonable searches and
seizures. The Delaware Supreme Court has held, “[w]hen law enforcement directs a driver

to stop [their] car, the State has ‘seized’ the car and its occupants, and the protections of the

Fourth Amendment apply.”3 The State bears the burden of demonstrating that the stop was
reasonable under the circumstances, and the officer conducting the stop had reasonable
articulable suspicion that a crime had occurred, is occurring, or is about to occur.4

In the instant matter, Corporal Cahall testified that while he was stopped behind
Defendant at a red light on Kirkwood Highway, he observed Defendant accelerate from the
light at a high rate of speed once it turned green.5 Corporal Cahall further testified that he
paced Defendant’s vehicle, and determined Defendant was exceeding the posted speed limit.
In Delaware, a traffic violation such as speeding constitutes a basis for a stop.6 Accordingly,
l find that the State has met its burden to justify the initial stop, and Corporal Cahall had
reasonable and articulable suspicion to believe Defendant had committed a traffic offense,
i.e. speeding

II. Probable Cause

Defendant also brings this motion challenging his subsequent arrest. In support of
this position, Defendant argues his behavior, including his driving, physical condition, and
responsiveness to Corporal Cahall’s instructions, failed to provide the probable cause that he
was impaired Defendant also contends the field sobriety tests should be suppressed as they
were not administered in accordance with NHTSA standards Likewise, Defendant argues
the Court should suppress the PBT results because Corporal Cahall administered the test

prior to the required fifteen minute observation period Furthermore, Defendant maintains

 

3 We.tt 1/. _fmte, 143 A.3d 712, 716 (Del. 2016).

4 julie 1/. Mu//)o//a)zd, 2013 WL 3131642, at *3 (Del, Com. Pl. june 14, 2013).

5According to the NH TSA manual, unnecessary acceleration is a “common and reliable” indicator of
impairment 2013 NHTSA Participant Manual, Session 5, Page 8.

6 fee Slate 0. Dmmmond, 2000 \X/L 703250, at *2 (Del. Super. Apr. 25, 2000).

the fact that Corporal Cahall failed to include in his report any comment on Defendant’s
ability or inability to walk uphill when escorted to the adjacent parking lot is a strong
indicator that he was not impaired Therefore, Defendant argues that, based upon the
totality of the circumstances, Corporal Cahall did not have probable cause to arrest him for
driving under the influence, and moves to suppress all evidence obtained as a result of the
unlawful arrest

Delaware Courts have held that probable cause is an “elusive concept which . . . lies
somewhere between suspicion and sufficient evidence to convict.”7 Probable cause exists
when “an officer possesses information which would warrant a reasonable man in believing
that such a crime has been committed.”8 In the context of DUI offenses, the arresting
officer must possess facts which, when viewed in the totality of the circumstances, suggest a
fair probability that the defendant was driving under the influence9 In essence, the State has
to establish that the arresting officer “possess[ed] a quantum of trustworthy factual
information sufficient to warrant a man of reasonable caution in believing a DUI offense
ha[d] been committed.”‘0 The State does not have to establish that the defendant was
“drunk” or “intoxicated.”11 Instead, a person will be deemed under the influence when he is

“because of alcohol or drugs or a combination of both, less able than the person would

 

7 I_.ej%bz)re 1/. State, 19 A.3d 287, 292 (Del. 2011).

3 A/Iz'zer v. Stafe, 2017 WL 111729, at * 4 (Del. Super. Jan. 11, 2017).
9 Xee Rj/bz'¢'kz` 1/. State, 119 A.3d 663, 670 (Del. 2015).

10 I_.efebm, 19 A.3d 287 at 293.

ll Stevem" 1). State, 110 A.3d 1264, 1271 (Del. Super. 2015).

ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient
physical control, or due care in the driving of a vehicle.”12

Generally, probable cause to arrest a driver for a DUI offense is measured by the
arresting officer’s observations of the defendant, including the defendant’s performance on
field sobriety tests.13 In the instant matter, Defendant has raised several challenges to the
field sobriety tests. First, Defendant argues the results of the HGN rest should not be
considered when assessing whether probable cause exist. In support of this position,
Defendant contends the test was not administered according to NHTSA standards, because
Corporal Cahall could not testify to the exact time parameters of the test.

“Prior to the admission of HGN evidence the State must provide [a] proper
foundation . . . by presenting testimony from an expert with specialized knowledge and
training in I-IGN testing and its underlying principles . . . .”14 Moreover, for HGN evidence
to be used for a probable cause determination, the HGN test must possess some indicia of
reliability such that a reasonable person could conclude from the results that there is a fair
probability the driver is “under the infiuence.”15

In the instant matter, Corporal Cahall testified that he was certified by NHTSA to
administer the HGN test, but could not testify to the exact time parameters of the test.
Corporal Cahall did testify that he administered the test in accordance with his training;
however, there are gaps in his testimony. Although Corporal Cahall was able to testify about

the underlying principles of the HGN test, he failed to testify about the time limits NI-ITSA

 

12 21 Del. C. § 4177(11).

13 566 R}hz`¢'k.z', 119 A.3d at 671.

14 Mz'//er v. State, 4 A.3d 371, 374 (`Del. 2010).

15 State y. Ru!bardt, 680 A.2d 349, 354 (Del. Super. 1996).

imposes for the test or that he complied with those time limits. This testimony is
insufficient to establish the reliability of the HGN and as such the test is excluded

Defendant also contends the Walk-and-Turn test was not administered according to
NHTSA standards, because Corporal Cahall did not instruct Defendant to look at his feet
while walking Nevertheless, “no Court in this jurisdiction has concluded that a failure to
strictly comply with NI-ITSA standards [will] invalidate[] the test.”16 Instead, the Court will
consider the deficiencies, and give the test its proper weight in the probable cause analysis.17
In this matter, I do not find Corporal Cahall’s failure to instruct Defendant to look at his
feet a significant deficiency that would warrant disregarding the test completely
Accordingly, I will afford proper weight to the Walk-and-Turn test in the probable cause
analysis.

Lastly, Defendant contends the Court should disregard the PBT results because the
State failed to lay a proper foundation for its admissibility Specifically, Defendant contends
Corporal Cahall administered the test prior to the required fifteen minute observation
period In Delaware, “the standard procedure for administering the PBT requires a fifteen
minute observation period before the test is performed.”18 However, while, “any questions

as to the PBT’s proper foundation may only go to the weight placed on the test result, rather

 

16 itate v. Da/e, 2016 \X/'L 691445, at *3 (Del. Super. Feb. 11, 2016).
17 .S`tal‘e 1/. Pamu/z`cz, 2012 WL 1392564, at *5 (Del. Com. Pl. Mar. 16, 2012).
111 Da/e, 2016 WL 691445, at *3.

than its admissibility,”19 this Court has refused to admit a PBT when the officer failed to
establish the requisite observation period20

In the case rubjudz`¢‘e, the MVR shows that Corporal Cahall first stopped Defendant’s
vehicle at 1:21 a.m. The MVR later shows Corporal Cahall administering the PBT at
approximately 1:34 a.m. At most, Corporal Cahall would have observed Defendant for
thirteen minutes prior to administering the PBT. As a result, Corporal Cahall deviated from
the standard observation period for administering a PBT. Therefore, the results of the PBT
are excluded

In considering the totality of the evidence in this matter_even excluding the results
of the I-IGN test and the PBT-I find that the State has met its burden of establishing that
Corporal Cahall had probable cause to believe Defendant was driving under the infiuence.
The case of Beare 1). 51¢1!€21 is illustrative in determining probable cause. In Beare, the
Delaware Supreme Court held that probable cause exists when the evidence establishes that:
(1) the defendant spoke in a rapid manner; (2) smelled of alcohol; (3) admitted to consuming
alcohol; (4) had bloodshot and glassy eyes; and (5) had committed a traffic violation.22

The instant matter before the Court is similar to the factors in Bea.te, and includes
another relevant factor_'two failed field sobriety tests. Based upon the foregoing, I find the
following factors relevant under the “totality of the circumstances” analysis: (1) Defendant

committed a traffic violation, i.e. speeding; (2) Defendant accelerated at a high rate of speed

 

19 State 1/. Be/aeler, 2010 WL 2195978, at *4 (Del. Com. Pl. Apr. 22, 2010) (quoting State v. B/ake, 2009 WL
3043964, at *4 (Del. Com. Pl. Sept. 14, 2009)).

211 See State v. Be//, 2015 WL 1880591, fn. 6 (Del. Corn. Pl. Apr. 23, 2015).

21 884 A.2d 495 (Del. 2005).

22 fee z'd. at 499-500.

after the light turned green; (3) Corporal Cahall detected a moderate odor of alcohol; (4)
Defendant’s eyes were extremely bloodshot and glassy; (5) Defendant admitted to drinking
prior to leaving work; (6) Defendant’s speech was mumbled; and (7) Defendant’s poor
performance on the Walk-and-Turn and One-Legged Stand tests.

Accordingly, based upon the totality of the evidence, which includes consideration of
the photographs and Defendant’s ability to walk uphill, I find that the State has established
that Corporal Cahall had probable cause to take the Defendant into custody Consequently,

Defendant’s Motion to Suppress is hereby DENIED.

IT IS SO ORDERED.

hief]udge

10

