IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WENDY S. ALTIZER, )
)
Defendant-Below, )
Appellant )
)
v. ) ID. No. 1409012918

)

STATE OF DELAWARE, ) Cr. A. Nos. MN 14-10-4136, etc.
)
Plaintiff-Below, )
Appellee. )

Submitted: October 12, 2016
Decided: January ll, 2017

ORDER

Upon Appeal from the Court of Common Pleas Of the State ofDelaware

in and for New Castle Counly,
AFFIRMED, IN PART; DISMISSED, IN PART.

This llth day of January, 2017, upon consideration of the parties’ briefs, the
parties’ oral arguments, the record on appeal, and the record beloW, it appears to
the Court that:

(l) The Court of Common Pleas denied Appellant Wendy S. Altizer’s

pretrial motion to suppress evidence derived from an investigation and arrest of her

for Driving Under the Influence (“DUI”) and other related traffic charges.l

 

l Del. Corn. Pl. Supp. Hrg. Tr. (Nov. 3, 2015) at 38-42.

Following a May 2016 jury trial in the Court of Common Pleas, Altizer Was found
guilty of DUI and Improper Lane Change.2 For the DUI conviction (her second),
Altizer Was sentenced to 18 months imprisonment, suspended after 60 days for a
probated term With certain conditions that include payment of a fine and
completion of the education and rehabilitation programs required by Delaware’s
motor vehicle code. For the improper lane change, Altizer received a $25 fine.3

(2) Altizer timely appealed her convictions4 The sole remaining issue on

Altizer’s appeal is the Court of Common Pleas’ denial of her suppression motion.5

 

2 Del. Com. Pl. Trial Tr. (May 10, 2016) at 162-63.

3 Sent. Order, Wendy S. Altizer v. State of Delaware, ID No. 1409012918 (Del. Com. Pl.
May 10, 2016).

4 Notice of Appeal, Wendy S. Altizer v. State of Delaware, ID No. 1409012918 (Del.
Super. Ct. filed May 16, 2016). Altizer included in her notice of appeal the convictions for both
the DUI and the improper lane change charges. But this Court lacks jurisdiction to consider her
appeal from the latter. See DEL. CODE. ANN. tit 11, § 5301(c) (2015) (granting right of appeal to
Superior Court from “any order, rule, decision, judgment or sentence of the Court [of Common
Pleas] in a criminal action . . . as provided in § 28, article IV of the Constitution of the State”);
Del. Const. art. IV, § 28 (appeals to Superior Court available Where the sentence includes
imprisonment exceeding a month or a fine exceeding $100); See also Reese v. State, 2014 WL
4059213, at *1 (Del. Aug. 15, 2014) (“In cases of multiple convictions, each sentence must be
evaluated individually in order to determine Whether it meets the constitutional threshold.”).

5 Appellant’s Opening Br. 5-19. At trial and through her briefing on appeal, Altizer
claimed also that her privilege against self-incrimination, derived from both the federal and state
constitutions, Was violated When the trial court admitted evidence of her refusal to submit to an
Intoxilyzer test. See Del. Com. Pl. Trial Tr. (May 9, 2016) at 48-52 (defense counsel objected to
the introduction of Altizer’s breath test refusal only as violating Miranda v. Arizona, 384 U.S.
436 (1966)); Appellant’s Opening Br. 20-28 (arguing that admission of the intoxilyzer refusal
violated her privilege against self-incrimination as granted by Article I, Section 7, of the
Delaware Constitution).

Altizer, as she should, has now abandoned the self-incrimination claim because it is contrary to
Well-settled federal and state constitutional laW. More than three decades ago, the United States

_2_

(3) This Court takes criminal appeals from the Court of Common Pleas.6
And such appeals are reviewed on the record, not tried de novo.7 “ln fact, this
Court functions in the same manner as the Supreme Court, in its position as an
intermediate appellate court, when considering an appeal from the Court of

Common Pleas.”8

(4) Here Altizer argues that the Court of Common Pleas erred when it
found probable cause existed for her roadside arrest for DUI. The Court finds that
the Court of Common Pleas did not abuse its discretion when it denied Altizer’s
motion to suppress. And thus, the Court affirms the judgment of the Court of

Common Pleas.

 

Supreme Court held that the Fifth Amendment to the United States Constitution does not bar
admission of evidence of a driver’s refusal to submit to a chemical test. South Dakota v. Neville,
459 U.S. 553, 564 (1983) (“We hold, therefore, that a refusal to take a blood-alcohol test, after a
police officer has lawfully requested it, is not an act coerced by the officer, and thus is not
protected by the privilege against self-incrimination.”) And more than a half-century ago, our
supreme court held the same when ruling on a challenge to the admission of an intoxilyzer
refusal under Article 1, Section 7, of the Delaware Constitution. State v. Durrant, 188 A.2d 526,
514-15 (Del. 1963) (“. . . the provisions relating to privilege against self-incrimination under the
provisions of Article I, Section 7 of the Delaware Constitution . . . embrace only a prohibition by
compulsory oral examination” not “[t]he fact that [a] defendant declined to submit to a sobriety
test . . .”).

6 DEL. CODE. ANN. tit ll, § 5301(c) (2015).
7 Id.
8 Stevens v. State, 110 A.3d 1264, 1268 (Del. Super. Ct. 2015) (internal citations and

quotations omitted); see also Baker v. Connell, 488 A.2d 1303, 1309 (Del. 1985) (Superior
Court’S function as intermediate appellate court is basically the same as the Supreme Court’s).

_3_

(5) This Court reviews the Court of Common Pleas’ denial of a motion to
suppress after an evidentiary hearing for abuse of discretion.9 Whether probable
cause exists is a mixed question of fact and law.10 Findings of fact are reviewed to
determine whether there is sufficient evidence in the record to support those
findings." And this Court “must adopt [the trial court’s] factual findings and [the
trial court’s] reasonable inferences as long as there is sufficient evidence in the
record to support them and the findings are not clearly erroneous.”12 Those
“factual findings can be based upon physical evidence, documentary evidence,
testimonial evidence, or inferences from those sources jointly or severally.”13

Also, under this deferential clearly erroneous standard of review, “[w]here there

are two permissible views of the evidence, the factfinder’s choice between them

 

9 Lopez-Vasquez v. State, 956 A.2d 1280, 1284 (Del. 2008); Hunter v. State, 2008 WL
625566, at *2 (Del. Mar. 10, 2008); State v. Crespo, 2009 WL 1037732, at * 4 (Del. Super. Ct.
Apr. 17, 2009).

‘" Bmwn v. Szaze, 897 A.2d 748, 750 (Del. 2006).
ll Id

12 S¢are v. Abel, 68 A.3d 1228, 1232 (Dei. 2012); Cooke v. Sm¢e, 977 A.2d 803, 854 (Del.
2009)

13 Abel, 68 A.3d at 1232 (internal quotations and citations omitted); Lopez v. State, 861
A.2d 1245, 1248-49 (Del. 2004) (“This deferential standard applies not only to historical facts
that are based upon credibility determinations but also to findings of historical fact that are based
on physical or documentary evidence or inferences from other facts.”).

_4_

cannot be clearly erroneous.”14 Once the facts and reasonable inferences therefrom
are properly established, “the issue is whether an undisputed rule of law is or is not
violated.”15 The trial court’s formulation and application of legal concepts are
reviewed de nova16 And so, giving the proper deference to the Court of Common
Pleas’ factual findings, this Court reviews de novo whether there was probable
cause for an arrest, as a matter of law.17

(6) The State’s evidence at the proceedings below fairly established the
following version of events. In the early morning hours of September 18, 2014,
Altizer was on Green Street in Middletown when She slammed her Jeep Grand
Cherokee into a vehicle legally parked on the side of that street. The collision was
of such force that it drove that other vehicle from its position parallel to a position
perpendicular to the curb. Altizer continued down the road until her vehicle

became disabled at the intersection of Green and Catherine Streets.18 Sergeant

 

14 Lopez, 861 A.2d at 1249 (quoting Anderson v. Cin of Bessner, 470 U.S. 564, 574
(1985)).

'5 1a (citing omelas v. United Sm¢es, 527 U.s. 690, 696-97 (1996)).

16 Lopez- Vasquez v. State, 956 A.2d 1280, 1284-85 (Del. 2008); Donald v. State, 903 A.2d
315, 318 (Del. 2006).

17 Lopez, 861 A.2d at 1249 (citing Ornelas, 527 U.S. at 697).
18 Del. Com. Pl. Supp. Hrg. Tr. (Nov. 3, 2015) at 9, 29-30; id. at 9-11 (entry of police body
camera recording as State’s Suppression Exhibit 7 [referenced hereinafter as “Supp. Hrg. Ex. 7 at

_”]); Supp. Hrg. Ex. 7 at 05:55-50, 08:19-13:00, 17:09-19:55; Del. Com. Pl. Trial Tr. (May 9,
2016) at 35-46.

-5_

Raymond Howard of the Middletown Police Department, a well-experienced
police officer trained specifically in DUI investigation, arrived at the scene.19 Sgt.
Howard wore a body camera that recorded his roadside interaction with Altizer.ZO
(7) Altizer was walking away from her disabled vehicle when Sgt.
Howard first saw her; he had to call her back.21 She retumed, they began talking,
and the sergeant detected a moderate odor of alcohol coming from Altizer’s
breath.22 Sgt. Howard noticed also that Altizer’s eyes were bloodshot.23 When
asked for her license, registration and insurance information, Altizer gave the
sergeant the first two but needed to be reminded of and had difficulty producing
the third - at one point, confusing a registration document for it.24 During this
initial interaction, Sgt. Howard had to ask Altizer three separate times how the

accident happened. Altizer seemed either to avoid the question or to be too

 

‘2 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015)ar6-9;De1. Com. P1. Triai Tr. (May 9, 2016)
ar 31-32.

20 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 9-11; Del. Com. P1. Triai Tr. (May 9,
2016) at 32 - 34.

21 Dei. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 11-12; supp. Hrg. Ex. 7 at 00;57.

22 Dei. com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 12;1:)@1. com. P1. Trial Tr. (May 9, 2016)
at 37.

23 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) ar 12; Dei. Com. P1. Trial Tr. (May 9, 2016)
at 37.

24 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 12; supp. Hrg. Ex. 7 at 01;03, 01;48-
02:48.

_6_

oblivious to answer.25 When she did, Altizer told the sergeant that she had been in
an argument at a friend’s place, was upset, and that she was now coming from
Lowe’s.26 Sgt. Howard told Altizer that it was about 1130 a.m. and Lowe’s had
been closed for hours. Altizer said then that she was coming from Wawa.27 Sgt.
Howard recounted, “she was confused about Where she Was and what she was
doing and performing that night.”28

(8) Altizer was twice asked how much she had to drink. Twice she
denied drinking at all.29 When confronted with the fact that Sgt. Howard could
smell alcohol on her, Altizer then said “maybe I had a few beers.”30 At this point,
Sgt. Howard attempted to begin field sobriety testing with the horizontal gaze

nystagmus (HGN) test. Altizer did not perform well on that test.31 She suddenly

became emotional, claimed she was unable to perform the HGN test because she

 

25 Del. Com. Pl. Supp. Hrg. Tr. (Nov. 3, 2015) at 26; Supp. Hrg. Ex. 7 at 01:04, 01:35,
02:52-54.

26 Del. com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 15; supp. Hrg. Ex. 7 3102;54-03;44.
22 Dei. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 15; supp. Hrg. Ex. 7 at 03:34-03:49.
28 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 15.

22 supp. Hrg. Ex. 7 at 03:52-04:12.

20 ld. 3103;52-04;12.

3' Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 15-16; supp. Hrg. Ex. 7 at 04:21-05:20_

_7_

was upset, and refused to perform any more field sobriety testing.32 Sgt. Howard
then placed her under arrest for suspicion of driving under the influence.33

(9) At the police station, Altizer refused to take an Intoxilyzer breath test.
So Sgt. Howard sought a seizure warrant to collect a sample of her blood. After
the warrant was obtained, Altizer’s blood was drawn.34 The result of her blood test
revealed Altizer had a blood alcohol content of .15 grams of alcohol per 100
milliliters of blood _ almost twice the legal limit.35

(10) The legal principles involved here are Well-established. Probable
cause exists when a police officer possesses information Which would warrant a
reasonable man into believing that a crime has been committed36 The wrongdoing
at question here is the offense of driving under the influence as defined by
Delaware’s motor vehicle code. “While under the influence” is defined in Title 21,
section 4177(c)(5) to mean that “the person is, because of alcohol or drugs or a
combination of both, less able than the person would ordinarily have been, either

mentally or physically, to exercise clear judgment, sufficient physical control, or

 

22 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 15-17; supp. Hrg. Ex. 7 a104:21-05:25.
22 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 17; supp. Hrg. Ex. 7 ar 05:25-05;45.

24 Del. Com. P1. Trial Tr. (May 9, 2016) at 52-53.

22 De1. com. P1. Trial Tr. (May 10, 2016)@1147.

26 cramer v. Srare, 314 A.2d 908, 910 (Del. 1973). See also Carrer v. Smre, 814 A.2d 443,
445 (Del. 2002) (“For an arresting officer to have probable cause, the officer’s knowledge must

be sufficient for a prudent person to believe that an individual had committed or was committing
an offense.”).

_8_

due care in the driving of a vehicle.”37 The evidence need not establish that the
person is “drunk” or “intoxicated.”38

(11) Probable cause is measured, not by precise standards, but by the
totality of the circumstances through a case-by-case review of “‘the factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.”’39 In turn, our courts have long-recognized that “[p]robable
cause is an elusive concept which avoids precise definition, lying somewhere
between suspicion and sufficient evidence to convict.”40 “Probable cause does not
require the police to uncover information sufficient to prove a suspect’s guilt
beyond a reasonable doubt or even to prove that guilt is more likely than not.”4'
Rather, probable cause merely requires the State to present facts which are

sufficient to show that “there is a fair probability that the defendant has committed

a crime.”42 “That hypothetically innocent explanations may exist for facts learned

 

37 DEL. CODE ANN. tit. 21, § 4177(c)(5)(2014); Lefebvre v. State, 19 A.3d 287, 292 (Del.
2011), reargument denied (May 26, 2011) (citing Bease v. State, 884 A.2d 495,498 (Del.2005)).

22 stevens v. sze, 110 A.3d 1264, 1271 (Del. super ct. 2015).

39 Schramm v. State, 366 A.2d 1185, 1192 (Del. 1976) (quoting United States v. Harris, 403
U.S. 573, 582-83 (1971)).

40 Stewart v. State, 2008 WL 482310, at *2 (Del. Feb. 22, 2008); State v. Cochran, 372
A.2d 193, 195 (Del. 1977).

4‘ Sm¢e v. Maxwell, 624 A.2d 926, 930 (Del. 1993).

42 lay

during an investigation does not preclude a finding of probable cause.”43 When
determining whether a particular arrest was supported by probable cause, the facts
must be viewed under the totality of the circumstances then facing the
investigating officer.44 Under the totality of the circumstances standard, facts are
not viewed in isolation to assess the establishment of probable cause.45 And the
totality of the circumstances standard takes into account a police officer’s training,
experience, observations, investigation, and any rational inferences drawn
therefrom.46 At bottom, “[w]hat is required is that the arresting police officer
possess a ‘quantum of trustworthy factual information’ sufficient to warrant a man
of reasonable caution in believing a DUI offense has been committed.”47

(12) As a general rule, the burden of proof is on the defendant who seeks
to Suppress evidence.48 But once the defendant has established a basis for her

motion, i.e., the seizure was conducted without a warrant, the burden shifts to the

 

42 Lefebvre, 19 A.3d 287, 293 (Del. 2011).

44 Maxwell, 624 A.2d at 930.

42 ld. ar 931.

46 Id

47 Lefebvre, 19 A.3d at 293 (quoting Maxwell, 624 A.2d at 931).

48 United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995); State v. Babb, 2012 WL
2152080, at *2 (Del. Super. Ct. June 13, 2012).

_10_

State to show that the warrantless seizure was reasonable49 And the burden the
State must carry on such a motion to suppress is proof by a preponderance of the
evidence.50

(13) There is no doubt that the Court of Common Pleas understood,
properly formulated, and properly applied each of the legal principles explained
above when it considered and denied Altizer’s motion to suppress.51

(14) Applying the deferential clearly erroneous standard of review, this
Court finds no err in the Court of Common Pleas’ factual findings that: Altizer
inexplicably Struck a parked vehicle; smelled of alcohol; had bloodshot eyes; was
unresponsive to certain questions about how the accident occurred; did not follow
directions properly during the HGN test; and initially denied any drinking until
confronted.52 There is sufficient evidence in the record to support those findings.53

(15) Applying the deferential clearly erroneous standard of review, the

record reflects that the Court of Common Pleas, as the trier of fact, was within its

 

49 Johnson, 63 F.3d at 245; Hunter v. State, 783 A.2d 558, 560 (Del. 2001) (Regarding
“which party bears the burden of proof on a motion to suppress evidence Seized during a
warrantless search, the rule in Delaware should now be clear. The State bears the burden of
proof.”).

211 State v. henson 2011 WL 1205242, at *3 (Del. super ct. Mar. 31, 2011).

21 Del. Com. P1. supp. Hrg. Tr. (Nov. 3, 2015) at 38-42 (court Of Common Pleas’
suppression ruling).

52 Del. Com. Pl. Supp. Hrg. Tr. (Nov. 3, 2015) at 40-42.

22 see Brown v. s¢a¢e, 897 A.2d 748, 750 (Del. 2006).

_11_

discretion to further find as fact or draw as reasonable inferences: that Altizer was
“not very responsive” at certain points of her interaction with Sgt. Howard; that
she “was foggy and was confused” at other points; that she was “very mixed up
about where she was coming from”; that her emotional upset was in response to
being asked to perform field sobriety tests; and that her refusal to take those tests

54

was “a consciousness of guilt indicator.” Again, there is sufficient evidence in

the record to support those findings. And, while Altizer strongly urges other views
of the evidence, the Court of Common Pleas’ choice of permissible alternatives
cannot be clearly erroneous.55

(16) lt then becomes this Court’s duty is to determine whether these facts
along with the reasonable inferences flowing from those facts were sufficient to

9956

conclude that there was “a fair probability that Altizer was driving when

“because of alcohol or drugs or a combination of both, [she was] less able than
[she] would ordinarily have been, either mentally or physically, to exercise clear

judgment, sufficient physical control, or due care in the driving of [her] vehicle.” 57

 

54 Del. Com. Pl. Supp. Hrg. Tr. (Nov. 3, 2015) at 40-42.
22 Lopez v. smze, 861 A.2d 1245, 1249 (Del. 2004).

56 State v. Maxwell, 624 A.2d 926, 930 (Del. 1993); State v. Iyer, 2011 WL 976480, at *1
(Del. Super. Ct. Feb. 23, 2011) (“The standard for probable cause continues to require only a fair
probability, under the totality of the circumstances, that a crime has been committed.”).

22 DEL. CODE ANN. tit. 21, § 4177(6)(5) (2014); Lefebvre v. Smre, 19 A.3d 287, 292 (Del.
2011).

_12_

Applying the a’e novo standard of review, this Court concludes that, under the
totality of circumstances, the established facts constituted probable cause for
Altizer’s DUI arrest as a matter of law.58 The Court of Common Pleas Court
properly denied her motion to suppress.

(17) The Court of Common Pleas’ judgment of conviction on the DUI
charge is, therefore, AFFIRMED. Because the sentence for the lane change
violation does not meet the jurisdiction requirement, the appeal as to that

conviction must be DISMISSED without review.59

 

58 See, e.g. Lefebvre, 19 A.3d at 292-93 (probable cause to arrest driver for DUI without any
field sobriety tests, Where driver committed a traffic offense, exhibited a strong odor of alcohol,
had a flushed face, admitted drinking, and Was somewhat flustered and argumentative with the
officer); Bease v. State, 884 A.2d 495,498 (Del. 2005) (evidence of a traffic violation, odor of
alcohol, rapid speech, admission to drinking, bloodshot and glassy eyes and a failed alphabet test
constituted probable to arrest the driver for DUI); Maxwell, 624 A.2d at 929-31 (Probable cause
to believe defendant violated DUI statute when there was a one-car accident, odor of alcohol at
scene of accident, several containers of beer in vehicle and no field tests); Iyer, 2011 WL
976480, at **11-14 (in the absence of admissible field test results, eyes that were “maybe a little
bit bloodshot”, odor of alcohol, admission to consuming alcohol prior to the accident, and
involvement in a single-vehicle accident were facts sufficient to establish probable cause to take
defendant into custody for the completion of the Intoxilyzer test). See also Charch v. State, 11
A.3d 226, at n. 11 (Del. 2010) (“[A] defendant’s refusal to submit to testing can be used for any
relevant purpose, including showing consciousness of guilt” in DUI case); State v. Trager, 2006
WL 2194764, at *6 (Del. Super. Ct. July 28, 2006) (“A police officer may consider irrational,
erratic, or belligerent behavior in making his or her probable cause determination.”).

22 see Reese v. s¢a¢e, 2014 WL 4059213, at *1 (Del. Aug. 15, 2014) (supreme Court must
dismiss appeal of any individual sentence that fails to meet the constitutional threshold for
appealable sentences); Castura v. State, 2009 WL 2365558, at *2 (Del. July 16, 2009) (when
appeal is to the Supreme Court, “each sentence [imposed] must be evaluated individually in
order to determine whether it meets the constitutional threshold” and for those sentences that do
not “meet the jurisdictional requirement . . . appeal as to those convictions must be dismissed
without review”); Stevens v. State, 110 A.3d 1264, 1272 (Del. Super. Ct. 2015) (citing Johnson

_13_

IT IS SO ORDERED.

IZ»QJQ

Paul R. Wallace, Judge
Original to Prothonotary

cc: Ryan Bounds, Deputy Attorney General
Tianna Bethune, Deputy Attorney General
Joseph A. Hurley, Esquire

 

v. State, 2008 WL 2721698, at *1 (Del. July 14, 2008)) (same for appeals to this Court from the
Court of Common Pleas).

_14_

