IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

v.
RONY L. ORTEZ-OLIVIA, ID NO. 1802000055

Defendant.

Date Submitted: Octc)ber 5, 2018
Date Decided: November 8, 2018

On Defendant Rony OrteZ-Olivia’S Motion to Suppress. DENIED.
ORDER

Colleen E. Durkin, Esquire, Deputy Attorney General, 820 N. French Street, 7th
F100r Wilmington, Delaware 19801. Attomey for the State.

James M. Stiller, Jr, Esquire, Schwartz & Schwartz, 1140 South State Street,
Dover, Delaware 19901. Attorney for Defendant.

Scott, J.

F indings of Fact

ln the early morning hours of February l, 2018 Trooper Gumbs received a
call to respond to a suspicious vehicle. Trooper Gumbs was at the Delaware State
Police Troop 9 barracks in Odessa at the time, and the location of the call was
approximately one quarter of a mile away. Trooper Gumbs arrived to the scene of
the suspicious vehicle a short time later. Trooper Gumbs upon arrival discovered a
white utility or Work van stationary in the left hand turning lane of the southbound
travel lanes of Route 13. The van was running and pointed in a northbound direction.

In the location where the vehicle was found, the north and southbound lanes
of the highway do not run directly parallel to one another, and are separated by some
distance. The van was discovered in the left hand turn lane which would customarily
be used by southbound traffic to access the Sunoco gas station that exists between
the north and southbound lanes of the highway. ln addition to Trooper Gumbs at
least 4 other officers responded to the scene.

Upon inspection Trooper Gumbs noticed the vehicle was occupied For his
safety Trooper Gumbs approached the vehicle from the passenger side to minimize
danger from oncoming traffic, and discovered Defendant asleep in the Driver’s seat
of the van. Trooper Gumbs attempted to wake Defendant both verbally and by
knocking on the window. After some time, Defendant woke up, appearing to be
shocked and confused, and reached for the gear selector of the van. Trooper Gumbs

opened the passenger door of the vehicle and removed Defendant’s hand from the
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selector. Trooper Gumbs noticed an odor of alcohol inside the vehicle while
preventing Defendant from attempting to shift the vehicle. Another trooper on scene
reached in the vehicle from the driver’s side and shut the vehicle off with the key.
Trooper Gumbs stated Defendant was asked to exit the vehicle and required
assistance from the other trooper on scene to do so.

After moving away from the van Trooper Gumbs began a dialogue with
Defendant suspecting he may have been under the influence of alcohol. Trooper
Gumbs inquired as to Defendant’s name, where he was traveling to and from, and if
he had consumed any alcohol. Trooper Gumbs noted Defendant had an odor of
alcohol about his person, and had bloodshot and glassy eyes.

lt became apparent that Defendant spoke English as a second language, with
an accent. Trooper Gumbs asked Defendant if he knew his ABCS and if he could
recite them starting with the letter E and continue through P. Defendant stated that
he knew his alphabet, but could not perform the test as requested by Trooper Gumbs.
Defendant stated he could recite his alphabct in Spanish, enunciating the letters A,
B, C as Ah, Bay, Say.

Trooper Gumbs then inquired if Defendant knew his numbers. Defendant
responded affirmatively. Trooper Gumbs requested Defendant to count backwards
from 68 to 53. Defendant began counting and stopped at 60 stating something about
knowing his measuring tape. After a brief interaction with Gumbs, Defendant

continued to count backwards to 53. Trooper Gumbs stated he uses this test as an
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initial indicator to determine if he should proceed with further field sobriety tests
Gumbs stated he looks to see if individuals transpose numbers pause or otherwise
fail to complete the task.

Trooper Gumbs then advised Defendant he was going to administer 3 tests;
the horizontal gaze nystagmus (HGN), the one leg stand (OLS), and the walk and
turn (WAT) tests Each of the tests was described before administering the tests

Trooper Gumbs described the HGN test as a vision test and inquired as to
whether Defendant had any issues with his vision or used glasses or contacts
Defendant stated he did use corrective lenses, but was not wearing them at the time.
Trooper Gumbs described the test correctly, and Defendant performed the test
according to the instructions Trooper Gumbs proceeded to administer the HGN test
and noted 4 clues to indicate intoxication. Trooper Gumbs administered the test in
72 seconds The National Highway Traffic Safety Administration (NHTSA)
guidelines do not specify how long the entirety of the test should take, but specifies
time of completion for individual components Trooper Gumbs administered the
HGN test more rapidly than specified in the guidelines

Trooper Gumbs then administered the OLS test. ln giving instructions Gumbs
asked Defendant to raise whichever leg he chose and count “One-one-thousand, two-
one-thousand, three-one-thousand. . .” This method of counting was repeated twice,
and Gumbs asked Defendant to count in this form “up to thirty.” The instructions in

the NHTSA guidelines suggest having an individual count 1001, 1002, 1003, ..., up
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to 1030. Defendant counted One-thousand, two-thousand, three-thousand, at
reaching ten-thousand Defendant kept his foot up and expressed confusion with how
to continue counting. After lowering his foot to the ground Defendant clarified,
asking “Can l just go, like, one, two, three?” to which he was told no. Defendant
raised his leg again and began counting from one-thousand as before. Trooper
Gumbs noted 2 clues during this test to indicate intoxication The two clues found
during this test were for when Defendant placed his foot on the ground, and for
keeping his arms slightly raised from his side to keep balance.

Trooper Gumbs then administered the WAT test. In providing instructions
for the test Trooper Gumbs instructed “you’re going to start with your feet shoulder
width apart, hands by your side.” He further instructed “You’re going to take nine
steps, heel-to-toe like so” then proceeded to demonstrate taking and counting out
loud ten steps Although Trooper Gumbs demonstrated the WAT test incorrectly,
Defendant performed the test correctly, and exhibited signs of intoxication.
Defendant performed the test as instructed, counting and taking nine steps Trooper
Gumbs indicated 2 clues observed for Defendant’s failure to touch heel-to-toe once
on the walk out and once on the walk back. These were the only two clues noted for

this test.
Trooper Gumbs then administered a portable breathalyzer test (PBT). Prior
to administering the PBT Trooper Gumbs had been in direct contact With Defendant

for 17 minutes Trooper Gumbs returned to his vehicle to retrieve the PBT and
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returned to Defendant in less than one minute. During this time another Trooper
was in direct contact with Defendant The results of the PBT returned a BAC of
0.151%, indicating Defendant was over the legal limit for driving under the
influence The PBT used for the test was calibrated on March 28th and was
functioning properly.

Trooper Gumbs, having established probable cause arrested Defendant and
transported him to Troop 9 headquarters where Defendant was subjected to the
lntoxilyzer 5000 breath test. The results of that test showed a BAC of 0.145%.

Discussion

Defendant asserts Trooper Gumbs administered the standardized field
sobriety tests incorrectly and as a result could not establish probable cause for the
arrest. Defendant moves to suppress all evidence of wrongdoing, or in the alternative
the results of the field sobriety tests and lntoxilyzer 5000 test.

Persons operating a vehicle in the State of Delaware are statutorily deemed to
have given consent to testing for the purpose of determining the presence of drugs
or alcohol.1 This testing constitutes a search of the person and as such the officer

seeking to submit the individual for testing must have probable cause to believe the

person was operating a vehicle in violation of the State’s impaired driving statutes2

 

1 21 De/. C. § 2740 (a).
2 1a

“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.”3 Probable cause is established when officers “present facts
which suggest, when those facts are viewed under the totality of the circumstances
that there is a fair probability that the defendant has committed a crime.”4

Probable cause sufficient to arrest an individual for a DUl offense is based
upon the arresting officer’s observations including, but not limited to, field sobriety
tests5 ln reviewing the totality of the circumstances surrounding a DUI arrest, an
officer need not rule out hypothetically innocent alternative explanations for a
driver’s conduct.6

The standardized field sobriety tests outlined by the NHTSA are highly
accurate and reliable tests for detecting blood alcohol concentrations at or above
0.10%, above the legal limit in this State of 0.08%.7 ln order to achieve reliability
however, the tests must be administered in a standardized manner.8 Failure to do so

compromises the results." However, other field sobriety tests can be effectively used

 

3 Lefebvre v. State, 19 A.3d 287, 292 (Del. 2011) (internal quotations omitted).

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

5 Rybicki v. Stale, 119 A.3d 663, 671 (Del. 2015); citing Lefebvre, at 293.

6 Lefebvre, at 293.

7 National Highway Transportation Safety Administration, DVVI Detection and
Standardized Field Sobriety Testing, Instructor's Manual. Sess. 8 pg. 7. (hereinafter
cited as “NHTSA SFST lnst. l\/lan. at Sess. _.”).

3 ld.

9 See,' Lefebvre, at 291.

to assess impairment.10 Similarly, an officer’s inadequate instructions prior to
administering a test will not invalidate the results if the test is performed correctly
by the individual.11

The Supreme Court has stated that in DUI cases no precise formula exists as
to what constitutes probable cause, but that factual context matters In Esham v.
Voshell, the Court determined that a traffic violation in concert with an odor of
alcohol, by themselves does not constitute probable Cause.12 ln Bease v. State, the
Court determined a traffic violation, odor of alcohol, rapid speech, admission to
drinking earlier in the day, bloodshot and glassy eyes, and a failed alphabet test
allowed a determination of probable cause sufficient for an arrest for DUI.13

ln Perrera v. State, the Court determined other facts sufficient for probable
cause existed even when Defendant passed two of the field sobriety tests
administered.14 ln Perrera the other factors included a traffic violation, bloodshot
and glassy eyes, an odor of alcohol, an admission to drinking earlier in the day, and
beer cans on the floor of the vehicle.15 Perrera failed the alphabet and counting tests

as administered, as well as the portable breathalyzer test.16

 

10 NHTSA SFST Inst. Man. at Sess. 8 pg. 7.

11 State v. GFOV€S, 2016 WL 675997, at *1 (D€l. Sup€r. 2016).
12 ESham v. VOSh€ll, 1987 WL 8277 (D€l. Sup€r. 1987).

13 Bease v. State, 884 A.2d 495 (Del. Supr. 2005).

14 Perrera v. State, 19 A.3d 287 (Del. Supr. 2011).

15 Perrera, at 908.

16 ld.

Even excluding the results of the field sobriety tests as administered, the
totality of the circumstances shows there was probable cause for Defendant’s arrest.

Defendant was discovered asleep behind the wheel of his vehicle. The vehicle
was parked with the engine running, facing oncoming traffic in a turning lane. Upon
waking up Defendant seemed confused Defendant’s vehicle and person smelled of
alcohol, he had bloodshot and glassy eyes and he required assistance exiting the
vehicle. ln preliminary questions Defendant had difficulty explaining the origin and
destination of his travel, struggled to complete a counting test, and admitted to
having consumed alcohol.

Additionally, there is no evidence the PBT test was administered in a way so
as to invalidate its results At the time Trooper Gumbs administered the PBT
Defendant had been under direct observation of either Trooper Gumbs or another
Trooper on scene. The PBT device had recently been calibrated, and returned a
result indicating Defendant was intoxicated

Q<_>L§l_llSiM

When an officer is conducting a DUI investigation a Defendant’s impairment

is established through what the officer sees hears and smells17 The State has

presented facts suggesting, in the totality of the circumstances that a fair probability

 

17 NHTSA SFST Inst. Man. at Sess. 7 Pg. 27.
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existed that Defendant was operating his vehicle while under the influence of

alcohol.

For the foregoing reasons Defendant’s Motion to Suppress is DENIED.

IT IS SO ORDERED.

,/?/W?”

1 l/

Judge Calvir{L. Scott, Jr.

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