IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
) ID No. 1702006809
v. ) In and For Kent County
)
ANGELA M. IUBATTI )
Defendant. )
ORDER

Submitted: July 21 , 2017
Decided: August 7, 2017

On this the 7th day of August 2017, having considered Defendant Angela
Iubatti’s (hereinafter “Ms. Iubatti”) motion to suppress and the State’s response, it

appears that:

l. Ms. lubatti seeks to suppress all evidence resulting from a police stop,
or in the altemative, the results of certain field sobriety tests administered to her by
Offrcer Mitchell on January 14, 2017. The facts cited herein are as they appear to
the Court following consideration of the parties’ submissions and argument at the
hearing on July 21, 2017.

2. On the date in question, the Dover police responded to a report that a
Woman Was sitting in a running vehicle on the side of the road and appeared to be ill
or impaired. Responding officers thereafter noticed Ms. lubatti in her vehicle near
the intersection of Clara Street and North Govemor’s Avenue in Dover, and

approached her, believing her to match the description of the Woman in the report.

Before making contact, the officers noticed Ms. lubatti was “nodding off” in her
vehicle. Upon contact with the police officers, Ms. lubatti stated that she believed
she was in Wilmington or Felton. The officers noticed that her eyes were bloodshot
and glassy and her pupils were enlarged. Her speech was slurred and slow. When
questioned about her condition, Ms. lubatti responded that she was simply very tired.

3. Believing Ms. lubatti to be impaired, Officer Mitchell directed Ms.
lubatti to perform a number of field sobriety tests. Ms. lubatti first performed finger
dexterity and alphabet tests, which she passed. She also performed a counting
backwards test which she did not perform correctly. She correctly performed a
horizontal gaze nystagmus test, but incorrectly performed a walk and turn
(hereinafter “WAT”) and one legged stand (hereinafter “OLS”) test, Before these
last tests, Ms. lubatti informed the officers that she had arthritis. A search warrant
was then prepared for her blood. When the warrant was approved, Ms. lubatti was
transported for a blood draw, and the results of the test revealed cocaine in her
system.

4. In her motion to suppress, Ms. lubatti contends that (l) the counting
test is not a standardized field sobriety test and therefore unsupportive of probable
cause, (2) the walk and turn and one legged stand tests were incorrectly administered
and unsupportive of probable cause because Ms. lubatti has arthritis and she
informed the officers of that fact, and (3) the officers lacked probable cause to arrest
Ms. lubatti for DUI or to administer a blood test on her.

5. The State replies that the tests were properly administered and that the
officers had probable cause to arrest Ms. lubatti and test her blood based on (l) her
bloodshot, glassy eyes and enlarged pupils; (2) her slowed and quiet speech; (3) the
failed counting test, (4) the failed walk and turn test, (5) the failed one legged stand

test, and (6) confusion as to location.

6. A police officer must have probable cause to believe a person was
driving while under the influence of` alcohol or drugs before requiring the person to
submit to chemical testing, such as a PBT.l 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.”2 The State
has the burden of presenting evidence that suggests “when those facts are viewed
under the totality of the circumstances, that there is a fair probability” that the
defendant has committed a DUI.3

7. While probable cause analyses are not subject to mathematical
precision, past decisions have enumerated certain factors supportive of a probable
cause determination, including: confusion as to whereabouts,4 failing a counting
test,5 bloodshot and glassy eyes, 6 irregular speech,7 and failing other validly

performed field sobriety tests.8 Successful performance on some field sobriety tests

 

l 21 Del. C. § 2740 (“The testing may be required of a person when an officer has probable cause
to believe the person was driving, operating or in physical control of a vehicle” while impaired.);
Bease v. State, 884 A.2d 495, 498 (Del. 2005).

2 Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del.1989) (citatiori omitted).

3 State v. Maxwell, 624 A.2d 926, 929 (Del.l993).
4 Maulo v. State, 27 A.3d 551 (Del. 2011).

5 State v. Ministero, 2006 WL 3844201 at *3 (Del. Super. Ct. Dec. 21, 2006) (“An individual's
performance on ‘memory’ type tests are factors an officer may use to determine whether
probable cause exists to arrest an intoxicated person, just like the officer's observations of the
defendant's driving or his personal appearance . . . . The defendant's ability to complete tests like
counting and alphabet word affiliation fully fall within this category.”).

6 Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011); Bease, 884 A.2d at 499-500.

71d.

8 Clena'aniel v. Voshell, 562 A.2d 1167, 1170 (De1.1989)

does not vitiate a finding of probable cause where other valid sources of probable
cause exist.9

8. Failed sobriety tests may be held to be unsupportive of probable cause
when proper instructions are not given, the test is administered in a rushed manner,
the defendant is not physically amenable to the test, or the officer otherwise fails to
observe the NHTSA standards of administration10

9. Officers who administer field sobriety tests may testify as to their
methods and observations as well as whether they followed the recognized standard
of procedure regarding these tests.ll Naturally, these witnesses may be cross
examined regarding any failure to observe proper procedures or applicable standards
during administration of the tests.12

10. Here, the Court finds the officer’s testimony credible that Ms. lubatti
was nodding off, that she was confused as to her location, that her eyes were
bloodshot and glassy and her pupils enlarged, that her speech was irregular, and that
she failed the counting test. The Court counts these factors towards a finding of
probable cause. While Ms. lubatti argues there are potential innocent explanations

of her eyes, irregular speech, and sense of confusion, the Court finds these

 

9 Perrera v. State, 852 A.2d 908 (Del. 2004) (“Mixed results in field sobriety tests do not
extinguish probable cause if other sufficient factors are present.”). See Lefebvre, 19 A.3d at 293
(reaffirming probable cause not extinguished despite defendant’s success on certain field tests).

10 Miller v. State, 4 A.3d 371, 374 (Del. 2010) (“Because [the officer] did not testify as to the
NHTSA standards or compliance with those standards, the trial judge erred by considering the
results of these tests in his probable cause analysis.”). See State v. Mulholland, 2013 WL
3131642 at *5 (Del. Com. Pl. 2013).

11King, 2007 WL 1153058, at *6.

12 Id.

explanations unconvincing, and potential innocent explanations do not require the
Court to disregard factors supportive of probable cause.13

1 l. The Court finds the WAT and OLS tests unreliable, due to Ms. lubatti’s
claimed arthritis in her legs, a disability that could have prevented her from
performing the tests correctly. lt appears that when Ms. lubatti informed the officer
of her disability and the officer nonetheless chose to administer the tests, this was
not in conformity with NHTSA standards, and therefore the Court does not give the
results any weight in its determination of probable cause.14 lt further appears from
the record that NHTSA standards require the surface on which the tests are
performed to be level if possible. The Court finds that the surface on which Ms.
lubatti performed the tests was not sufficiently level, and that level alternatives were
available. For this reason also, the Court gives no weight to any potential failure of
the WAT and OLS tests.15

12. Therefore, based on the above factors, the Court determines that the
totality of the circumstances, including Ms. lubatti’s extreme confusion as to
whereabouts, nodding off, bloodshot and glassy eyes and enlarged pupils, irregular

speech, and failed counting test are sufficient to warrant a finding of probable cause.

 

13 State v. Maxwell, 624 A.2d 926, 930 (Del.1993).

14 State v. King, 2007 WL 1153058, at *6 (Del. Super. Ct. Mar. 30, 2007); see State v. Mz`nistero,
2006 WL 3844201 at *4 (Del. Super. Ct. Dec. 21, 2006) (affirming that the results of a walk and
turn test and balance test should be excluded where the defendant “stated he had surgery on his
neck and back”).

15 See State v. Fernandes, 2015 WL 3793339, at *3 (Del. Com. Pl. June 2, 2015) (suggesting that
results of WAT tests performed on an incline may be unreliable unless special instructions are
given to remedy interference with the test results).

WHEREFORE, Ms. lubatti’s Motion to Suppress is DENIED.

IT IS SO ORDERED.

/s/ Noel Eason Primos

 

Judge
NEP/sz

