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

STATE OF DELAWARE,                             )
                                               )
                 v.                            )      Cr. ID No. 1208015186
                                               )
RANDALL T. HERNANDEZ,                          )
                                               )
                 Defendant.                    )

                                       Submitted: April 2, 2014
                                        *
                                          Decided: July 9, 2014

Danielle Brennan, Esquire                                             Louis B. Ferrara
Deputy Attorney General                                               1716 Wawaset Street
820 N. French Street, 8TH Floor                                       Wilmington, DE 19806
Wilmington, DE 19801                                                  Attorney for Defendant
Attorney for the State of Delaware

                        MEMORANDUM OPINION AND ORDER ON
                         DEFENDANT’S MOTION TO SUPPRESS

         Defendant Randall T. Hernandez (“Hernandez”) was arrested on August 18, 2012, and

charged with driving under the influence of alcohol in violation of 21 Del. C. § 4177(a) (the “DUI

Offense”) and speeding in excess of posted limits in violation of 21 Del C. § 4169. On January 23,

2013, Hernandez filed the present Motion to Suppress.

         A hearing on the motion was held on November 18, 2013. At the hearing, the Court heard

testimony from Corporal Clay Echevarria (“Corporal Echevarria”). At the conclusion of the

hearing, the Court reserved decision and ordered supplemental briefing on the issue of whether

probable cause existed when Hernandez was taken into custody for the DUI Offense. This is the

decision on Hernandez’s Motion to Suppress.




*
    This case was reassigned from a retired Judge.
                                                 Facts

       On August 18, 2012, at around 12:40 a.m., Corporal Echevarria, an employee of the

Delaware State Police for 17 years,1 was on patrol on Lancaster Pike in the area of Hampton Way,

when he observed a vehicle travelling in excess of the posted speed limit. Corporal Echevarria

activated his emergency lights and the vehicle pulled over.

       As Corporal Echevarria approached the vehicle, the driver, whom he identified as

Hernandez, opened the door and began to exit. Corporal Echevarria instructed Hernandez to

remain in the vehicle. After calling in the stop, Corporal Echevarria approached the vehicle, at

which point Hernandez again opened the door. Corporal Echevarria again directed Hernandez to

close the door. Corporal Echevarria identified himself and informed Hernandez that he was being

stopped for speeding. Upon approach, Corporal Echevarria observed that Hernandez’s eyes were

bloodshot and watery, and he noted an odor of alcohol on Hernandez’s breath. Corporal

Echevarria also noticed that Hernandez’s reactions were slow; Hernandez appeared to be in a daze,

and his movements were “in slow motion.”

       Corporal Echevarria requested that Hernandez produce his driver’s license, registration, and

proof of insurance. Hernandez proceeded to look for his driver’s license, however, Corporal

Echevarria observed that Hernandez had already passed his license while looking through his cards,

and advised him of the same. When questioned regarding where he was coming from, Hernandez

responded that he had been out with the boys.2


1
  Corporal Echevarria testified that, prior to being employed by the Delaware State Police, he
worked for the New Castle County Police for nearly five years.
2
  On direct examination, Corporal Echevarria testified that Hernandez responded that he was out
with “his boys.” On cross-examination, Corporal Echevarria conceded that his report indicated
that Hernandez responded that he was out with “the boys.” The Court finds this distinction to be
immaterial, and does not discount the credibility of Corporal Echevarria’s testimony.
                                                  2
        Corporal Echevarria asked Hernandez to exit the vehicle; this request was repeated when

Hernandez failed to respond. Hernandez eventually exited the vehicle, and Corporal Echevarria

asked him to walk to an area a few feet away. Hernandez did not respond and instead stared blankly

at Corporal Echevarria, prompting Corporal Echevarria to articulate the request three more times

before Hernandez walked to the requested area. Corporal Echevarria observed slowness in

Hernandez’s movements, as well as flushed face and difficulty speaking.3

        Corporal Echevarria asked Hernandez if he had any physical limitations, however,

Hernandez did not respond to the inquiry. Corporal Echevarria administered three field sobriety

tests: the Horizontal Gaze Nystagmus (“HGN”) test, the Walk-and-Turn Test, and the One-Leg-

Stand Test.

        On the Walk-and-Turn Test, Hernandez could not maintain the starting position. When he

performed the test he had poor balance; he failed to walk heel-to-toe as instructed; he stepped off

line; he did not count as instructed; and, he swayed when turning. Corporal Echevarria testified that

“all clues were indicated,” which he believed to be a total of six clues; however, Corporal Echevarria

could not confirm the exact number of clues exhibited. He described Hernandez’s performance as

“not a very good test.” Corporal Echevarria conceded that he did not know what number of clues

constitutes a failure and he did not know the correlating percentage of reliability.

        On the One-Leg-Stand Test, Hernandez failed to follow instructions, raising his right foot

when he was directed to raise his left foot. Hernandez dropped his foot to the ground numerous

times and raised his arms. Corporal Echevarria could not determine the number of clues exhibited

on the One-Leg-Stand Test; however, he described Hernandez’s performance as “bad.” Corporal


3
  On direct examination, Corporal Echevarria testified that Hernandez’s speech was slurred. On
cross-examination, he testified that he noted mumbled speech in his report. Corporal Echevarria
stated that the difference between slurred speech and mumbling is semantics; regardless of
classification, Hernandez had difficulty speaking.
                                                   3
Echevarria could not recall what number of clues constitutes a failure and he did not know the

correlating percentage of reliability.

        Finally, Corporal Echevarria conducted the Finger-to-Nose Test, which Corporal Echevarria

conceded is not a scientific test. After Corporal Echevarria gave directions and demonstration he

asked Hernandez to perform. Despite direction to the contrary, Hernandez kept his eyes open

through the duration of the test and he did not move as instructed, even when Corporal Echevarria

repeated directions.

        After completion of the field tests, Corporal Echevarria determined he had probable cause

to arrest Hernandez for DUI, and placed him in custody.

        On cross-examination, Corporal Echevarria acknowledged that he noted only a “moderate”

odor of alcohol in his report, whereas his testimony on direct examination was that he detected a

“strong” odor of alcohol. Corporal Echevarria explained that the degree of alcohol odor is a matter

of perspective and, while he was not referring to the report during direct examination, he did

remember the “distinct” smell of alcohol on Hernandez’s breath.

        Corporal Echevarria also conceded that in his report he indicated that Hernandez’s speech

was “mumbled,” while on direct examination he described Hernandez’s speech as “slurred.” When

questioned, Corporal Echevarria stated that he believes the difference between mumbled and slurred

is merely semantics, and that the point was difficulty in speaking.

                                           Parties Positions

        It is Hernandez’s position that his arrest was not supported by the requisite probable cause.

Hernandez argues that: (1) the HGN should not be considered by the Court because it was not

administered according to NHTSA standards; (2) the remaining field sobriety tests should not be

considered because they were not administered in accordance to NHTSA standards and Corporal

Echevarria did not know the percentage of reliability for either test, and; (3) little or no weight


                                                    4
should be given to Echevarria’s testimony regarding speech and odor of alcohol. Hernandez

maintains that, absent the HGN, field sobriety tests, odor of alcohol, and slurred speech, there was

insufficient probable cause to arrest Hernandez for either the DUI Offense or speeding.

         It is the State’s position that under the totality of the circumstances, Corporal Echevarria had

probable cause to arrest Hernandez for the DUI Offense. The State contends that probable cause

existed even if the Court assigns little or no weight to Hernandez’s performance on the field sobriety

tests.

                                              Discussion

         On a motion to suppress, the burden is on the State to prove, by a 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.4 An arrest for a DUI

offense must be supported by probable cause.5 “Probable cause to arrest for a DUI offense exists

when an officer possesses ‘information which would warrant a reasonable man in believing that

[such] a crime ha[s] been committed.’”6

         Assessment of probable cause is based on the “totality of the circumstances, as viewed by a

reasonable police officer in the light of his or her training and experience.”7 “Probable cause exists

where the facts and circumstances within the arresting officer’s knowledge, of which he has

trustworthy information, are sufficient in themselves to warrant a person of reasonable caution to

believe that an offense has been committed.”8 A finding of probable cause “requires less evidence



4
  State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010) (citation omitted).
5
  Lefebvre v. State, 19 A. 3d 287, 293 (Del. 2011).
6
  Id. (quoting Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del.1989)).
7
  Miller v. State, 4 A.3d 371, 373 (Del. 2010) (citing State v. Maxwell, 624 A.2d 926, 929-930
(Del. 1993)).
8
  Stafford v. State, 59 A.3d 1223, at 1229 (Del. 2012) (citing Tolson v. 900 A.2d 639, at 643
(Del. 2006)) (quoting Draper v. United States, 358 U.S. 307, 313 (1959)).
                                                    5
than would justify a conviction . . . [o]nly a fair probability . . . of criminal activity is the standard for

probable cause.”9

     A. The Field Sobriety Tests

            a. The HGN Results

        Hernandez contends that the HGN results should not be considered by the Court because

the proper foundation for its admissibility was not established. The State acquiesces that, because

the testimony presented at the hearing did not establish that the NHTSA requirements were

satisfied, the Court may disregard or give little weight to HGN results.

        The HGN test is a reliable indicator of impairment and may be used in assessing probable

cause, providing the proper foundation is laid.10 To establish the proper foundation, the State must

show that the officer was trained to administer the test and that he did administer the test in

accordance with his training.11 Here, Corporal Echevarria testified that he received specialized

training and certification in administering the HGN test. However, the State concedes that the

testimony does not establish that the test was administered in accordance with NHTSA standards.

Specifically, Corporal Echevarria did not determine whether Hernandez was wearing hard or soft

contact lenses at the time the test was administered, as set forth in the NHTSA guidelines.

Accordingly, no weight is given to the HGN results.

            b. The Walk-and-Turn Test and the One-Leg Stand Test

        Secondly, Hernandez argues that the remaining field sobriety tests (the Walk-and-Turn Test

and the One-Leg Stand Test) should be excluded because they were not administered in accordance

with NHTSA standards. Hernandez suggests that Corporal Echevarria did not administer the test in

a standardized manner as required by the NHTSA guidelines. Hernandez maintains that Corporal

9
   Id. (citations omitted).
10
   See Mooney v. Shahan, 2001 WL 1079040, at *3-4 (Del. Super. Aug. 24, 2001).
11
   State v. Ministero, 2006 WL 3844201, at *5 (Del. Super. Dec. 21, 2006).
                                                      6
Echevarria’s lack of knowledge concerning the percentage of reliability for either test and his lack of

knowledge concerning the number of clues exhibited by Hernandez renders the field sobriety tests

inadmissible.

        Field sobriety tests will be considered reliable and admissible if conducted in accordance

with NHTSA Standards.12 Corporal Echevarria testified that he received training and is certified by

the Delaware State Police in NHTSA field sobriety testing. There is nothing in the record to

indicate that Corporal Echevarria’s administration of the field sobriety tests deviated from his

training or the NHTSA guidelines. Accordingly, the field sobriety tests may be properly considered,

and the deficiencies in Corporal Echevarria’s testimony regarding the percentage of reliability shall

go towards the weight of the evidence, not its admissibility.13

            c. Odor of Alcohol & Speech Difficulties

        Hernandez claims that Corporal Echevarria’s testimony regarding the observed odor of

alcohol and speech deficiencies were inconsistent and therefore should be given little or no weight

by the Court.

        The Court finds Corporal Echevarria’s testimony regarding the odor of alcohol to be

credible. The existence of an odor of alcohol in any degree is relevant to a determination of

probable cause. Corporal Echevarria unequivocally stated that he recalled smelling an odor of

alcohol on Hernandez’s breath, and while the Court finds that the discrepancy in the degree of that

odor to be relevant, however, it is not sufficient for the Court to disregard the testimony.

        The Court also finds Corporal Echevarria’s testimony regarding Hernandez’s speech to be

credible. Despite the incongruity between his categorization of the speech as “slurred” and

“mumbled,” Corporal Echevarria consistently described Hernandez’s as having difficulty speaking.

12
 See Id. at * 4.
13
 State v. Davis, 2012 WL 3794286, at *4 (Del. Com. Pl. July 9, 2012) (citing Ministero, 2006
WL 3844201, at *5).
                                                   7
Corporal Echevarria’s testimony clearly established that, whether mumbled or slurred, Hernandez’s

speech was not clear.

    B. Probable Cause Existed

        Considering the totality of the facts, I find probable cause existed to arrest Hernandez for

DUI. Corporal Echevarria testified that he stopped Hernandez for a traffic violation and before

initiating contact, Hernandez failed to follow the officer’s instruction by attempting to exit the

vehicle. When asked for his driver’s license, Hernandez skipped over it while searching through his

cards; it was not until Corporal Echevarria rendered assistance that the license was produced.

Corporal Echevarria made the following observations of Hernandez: unintelligible speech, odor of

alcohol, watery bloodshot eyes, delayed responses, slow movement, and difficulty following

direction. During the field tests which I consider, Hernandez appeared dazed, he failed to follow

instructions, and his performance was poor. Corporal Echevarria’s observations based on his

training and experience led him to believe that Hernandez was under the influence of alcohol.

        The Court finds that the State proved by a preponderance of the evidence that Corporal

Echevarria had probable cause to arrest Hernandez for DUI. The testimony presented at the

hearing is sufficient to establish that there was a fair probability that Hernandez was driving under

the influence.

                                               Conclusion

    For the foregoing reasons, the Court finds that the arrest of Hernandez was supported by

probable cause. Accordingly, Hernandez’s Motion to Suppress is DENIED. The matter shall be

scheduled for trial before this Judicial Officer.

    IT IS SO ORDERED.

                                                    __________________________________
                                                    The Honorable Alex J. Smalls
                                                    Chief Judge


                                                      8
