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

STATE OF DELAWARE,

v. Cr. A. No. 1503()18070

MICHAEL W. DURHAM,

VVV\/\/\/VVVV

Defendant.
Erik C. Towne, Esquire Joe Hurley, Esquire
Department of Justice 1215 King Street
820 N. French Street, 7th Fl. Wilmington, DE 19801
Wilmington, DE 19801 Attorneyfor Defena'ant

Attorney for the State ofDelaware

MEMORANDUM OPINION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS

RENNIE, J.

On November l, 2016, the Court heard testimony and argument on Defendant’s Motion

to Suppress (the “Motion”) in this case. This is the C0urt’s Decision on the Motion.

I. Facts

On March 28, 2015, New Castle County Police Officer Zachery Sherwood (“Officer
Sherwood”) responded to a single vehicle accident at the intersection of Jaymar Boulevard and
Aspen Drive. Officer Sherwood arrived at the scene and observed an unoccupied vehicle
wedged between two trees which were growing on the backyard property line in-between two
residential homes. A second New Castle County Police Officer then administered field sobriety
tests and a Portable Breath Test to Defendant. Based on the testing results and Officer
Sherwood’s observations, Defendant was placed under arrest and transported to the New Castle
County Police Station.

The parties adamantly dispute the sequence of events that occur after Defendant was
transported to the police station. Specifically, the parties disagree on whether Officer Sherwood
read Defendant the penalty provision in the Implied Consent and Probable Cause Forrn (“Implied
Consent Form”) before Defendant’s blood was drawn by a phlebotomist. Of`ficer Sherwood
testified that he is unable to recall whether he even read the provision to Defendant.

According to the initial testimony of Officer Sherwood, Defendant was placed in a
holding cell, the officer drafted the search warrant for the blood draw in another room, and the
officer did not ask Defendant for a breath sample. After the officer’s search warrant was
approved, a phlebotomist drew Defendant’s blood at the police station. Officer Sherwood placed
Defendant back in his holding cell and filled out the necessary paperwork, including the Implied

Consent Form. Defendant was released after all the paperwork was completed.

On Cross-examination, Officer Sherwood acknowledged that while he did not recall
asking Defendant to submit to the intoxilyzer. He, however, stood by his police report and
conceded that he placed Defendant in the intoxilyzer room and requested Defendant to provide a
breath sample, which Defendant refilsed.

According to Defendant, Officer Sherwood brought him back to the police station and
asked him to consent to the intoxilyzer test, which Defendant refused. Officer Sherwood then
read Defendant the penalty provision of the Implied Consent Form, yet Defendant still refused.
The officer then prepared the blood Search warrant and submitted it to Justice of the Peace Court
ll. Court ll signed the warrant, at which point a phlebotomist collected Defendant’S blood
sample at the police station.

During his testimony at the Motion hearing, Officer Sherwood was unable to recall
whether he read the penalty provision to Defendant, and whether he filled out the Implied
Consent Form in Defendant’s presence. On the Implied Consent Form, however, both the
Implied Consent box and Probable Cause box were checked.l The Officer also acknowledged
that he checked the Implied Consent box because Defendant refused to submit to the
“intoxilyzer.”

II. Legal Standard

On a motion to suppress, the State must establish, by a preponderance of the evidence,
that Defendant’s arrest was supported by probable cause.2 To satisfy the probable cause standard
for a DUI arrest, police “must 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

 

l By checking the Implied Consent box, the officer is expressly admitting that he “advised the defendant that [his]
driving privilege would be revoked for refusal to submit to a chemical test.”
2 State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010).

‘C¢

DUI offense.”3 This totality consideration is based on the factual and practical considerations
of everyday life on which reasonable and prudent men, not legal technicians, act.”’4 “A probable
cause determination may be made based upon ‘either the police officer’s direct observations or []

hearsay.”’5

III. Discussion

In this case, the sole basis for Defendant’s Motion to Suppress is his contention that Officer
Sherwood violated 21 Del. C. § 2742 when the officer read Defendant the penalty provision of
the implied consent statute and proceeded with chemical testing, even after Defendant refused
testing.

A. Delaware Implied Consent Statutes

6 Under the Delaware

Each state has enacted a version of the Implied Consent Statutes.
implied consent statutes, if a person “drives, operates, or has in [his] actual physical control a
vehicle,” then the driver has implicitly consented to chemical testing.7 Thus, in a circumstance

where such a driver is subject to chemical testing, the officer can inform the driver of the

“penalty of revocation for such refusal” prior to having the chemical test performed or he can

 

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

4 State v. Cardona, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008) (quoting State v. Maxwell, 624 A.2d 926,
928 (Del. 1993)).

5 Id. (quoting Barnett v. Division of Motor Vehicles, 514 A.2d 1145, 1146 (Del. Super. 1986)).

6 See Christopher M. Peterson, Note, lrrevocable Implied Consent.' T he “Roach Motel " In Consent Search
Jurisprudence, 51 AM. CRIM. L. REV. 773, 784 (2014) (noting all fifty states have a version of an implied consent
statute).

7 21 Del. C. § 2740 (“Any person who drives, operates or has in actual physical control a vehicle, an off-highway
vehicle, or a moped within this State shall be deemed to have given consent, subject to this section and §§ 4177 and
4177L of this title to a chemical test or tests of that person's blood, breath and/or urine for the purpose of
determining the presence of alcohol or a drug or drugs.”). lt is important to note that Delaware’s Implied Consent
Statutes negate a defendant’s expectation of privacy under the Fourth Amendment in his breath, blood, or urine.
State v. Powell, 2002 WL 1308368, at *4 (Del. Super. June 4, 2002).

have chemical testing performed without the driver’s consent, provided the officer possesses
probable cause and “takes reasonable steps to conduct such chemical testing.”8

The language of Section 2742 provides that after being informed of the penalties for
refusal, if the driver still refuses chemical testing then the officer cannot proceed with chemical
testing.9 However, the language in Section 2750 of the Delaware Implied Consent Statutes
appears to override §2742 for purposes of admissibility in DUI prosecution. Specifically, the
language of §2750 provides that even if the officer proceeds to have the driver chemically tested
after the driver has been informed and refused, the chemical test results are still admissible in
prosecutions for violations of §4177.10 Hence, a plain reading of §2750 makes it clear that even
if the officer administers the chemical test after the penalty provision is read and refused, blood
results are admissible, as long as the officer does not violate search and seizure law under the
Fourth Amendment.ll In other words, the officer must have had probable cause to arrest and
cannot use excessive force to collect the sample for chemical testing.12 Importantly, when an

officer conducts an intoxilyzer test, Delaware search and seizure law and the Fourth Amendment

 

8 21 Del. C. § 2742(a) (“If a person refuses to permit chemical testing, after being informed of the penalty of
revocation for such refilsal, the test shall not be given but the police officer shall report the refusal to the
Department. The police officer may, however, take reasonable steps to conduct such chemical testing even without
the consent of the person if the officer seeks to conduct such test or tests without informing the person of the penalty
;)f revocation for such refusal and thereby invoking the implied consent law.”).

Id.
10 21 Del. C. § 2750 (“Nothing contained in this section shall be deemed to preclude the admissibility of such
evidence when such evidence would otherwise be admissible under the law relative to search and seizure law such
as when such evidence has been obtained by valid consent or other means making the obtaining of the evidence
legal under the Fourth Amendment.”).
ll In State v. Flonnory, the dissent noted that State v. Wolf_-where the drawing of an unconscious person’s blood
was held to be an illegal search_prompted the General Assembly’s adoption of the implied consent statutes, 21 Del.
C. § 2740 et seq. See State v. Flonnory, 109 A.3d 1060, 1067 (Del. 2015) (Strine, C.J., dissenting); see also State v.
Betts, 2009 WL 388952, at *8 (Del. Super. Feb. 3, 2009) (also noting the historical point that the implied consent
laws were adopted to solve the conundrum of performing chemical tests on unconscious suspects).
12 Seth v. State, 592 A.2d 436, 444 (Del. 1991). If the chemical test pertains to blood, then the person who draws the
blood must be “qualified to administer” the test. 21 Del. C. § 2748; see also State v. Hartman, 1984 WL 553534, at
*1 (Del. Super. Sep. 4, 1984) (noting that the “statute expressly authorizes medical technicians to withdraw blood,
and phlebotomists are medical technicians”).

require probable cause that the driver was driving under the influence, while a nonconsensual
blood draw requires both probable cause and a valid search warrant, or exigency.13

Because §2750 appears to override the bar to the admissibility of test results under §2742
in DUI prosecutions, where §2742 is violated, and there are no Fourth Amendment implications,
the Court must address the apparent paradox created by the language in these two sections. The

Court thus turns to recent case law for guidance on the intersection of §§ 2742 and 2750.

B. Key Delaware Precedem‘ Conceming Implied Consent

In 1991, the Delaware Supreme Court in Seth v. State held that collecting a defendant’s
breath sample against his consent did not violate the implied consent laws.]4 In Seth, there was
disagreement about whether the officer had stated, prior to conducting the intoxilyzer test, “‘[a]re
you ready to take the test or do you want to go to jail?”’15 Nevertheless, the parties agreed that
the arresting officer failed to read defendant the implied consent law.16 Defendant argued that
the officer was required to read him the implied consent law and that his consent was involuntary
because he was threatened with j ail-time.17

The Court found that Defendant misunderstood the implied consent statutes, as the 1982
and 1983 amendments removed the 1977 version’s requirement that a suspect consent to the

chemical tests.18 Importantly, the Supreme Court noted that the amendments added a new

section which would “eliminate any defense to the admissibility of the results of chemical tests

 

13 State v. Flonnory, 109 A.3d 1060, 1063-64 (Del. 2015). Delaware’s implied consent law also requires that the
blood be extracted by “qualified” medical personnel 21 Del. C. § 2746.

14 sezh, 592 A.2d at 438.

15 Id.

"’ ld.

" Id. at 443.

18 Id. at 443-44 (quoting 21 Del. C. §2742(a) (1977)) (removing the language that “the test ‘shall not be given”’ if
suspect refuses). The amendments also added language that the officer is allowed to conduct chemical testing
“without consen ” under §2742. Id. at 444.

based on a failure to inform the accused of the implied consent law, where Fourth Amendment
concerns are not implicated.”19 lnterpreting §§ 2740-42 of the statute, the Court stated:
The net effect of the amendments is an officer's ability to require a suspect to
submit to testing, without that person's consent or a reading of the implied consent
law, so long as the officer has probable cause and the degree of force used is not
excessive under the Fourth Amendment.20
The Court further interpreted §2750(a) in light of the above sections, and stated, “even if the
officer had violated the implied consent law, any argument to exclude the evidence is irrelevant.
Section 2750(a) eliminates any defense to admissibility not implicating the Fourth

9921

Amendment. Because the Delaware Supreme Court relied on the trial court’s determination

that the officer did not threaten the suspect, the Court found no Fourth Amendment violation.22
Thus, the intoxilyzer test results were admissible23

In State v. Powell, the Delaware Superior Court grappled with whether a police officer
was required to inform a suspect of his right to refuse chemical testing in order for the test to be
admissible.24 The Court began its analysis by stating that a chemical test, which did not violate
the Fourth Amendment, was admissible in a DUI prosecution under §2750(a).25 Relying on

Seth, the Superior Court dismissed defendant’s argument that the police officer failed to properly

read him the refusal provision according to §§ 2741 and 2742.26 First, the Court noted that

 

19 Id.

20 Id.

21 Id. at 445. This Court does not view the police officer’s omission of the penalty provision in Seth_versus an
admission_to render Seth inapplicable to this case. The Supreme C0urt’s pre-emptive language in Seth and
2§22750’s language of “informing or failure to inform” clearly applies in both situations

2313

24 See State v_ Powell, 2002 wL 1308368, at *3 (Del. super. June 4, 2002)

25 Id. (“defendant’s rights must be analyzed under Fourth Amendment search and seizure law, because when the
police have probable cause to arrest a defendant and a bodily sample is appropriated ‘[s]ection 2750(a) [of Title 21]
eliminates any defense to admissibility not implicating the Fourth Amendment.”’ (quoting Seth v. State, 592 A.2d
436, 445 (Del. 1991))).

26 1a at *4.

§2741 does not require a defendant to be notified of his right to refuse.27 Second, similar to the
present case, the Superior Court was unconcerned with the record’s ambiguity as to whether the
defendant was informed of the penalty provision orally or in writing because §2750 rendered the
issue moot when Fourth Amendment concerns were not implicated.28

In State v. Bajfone, this Court held that evidence from a blood draw was admissible in a
DUl prosecution despite the officer administering the chemical test after he recently received
informed refusal from the defendant.29 This Court refused to read §2742(a) in a vacuum,
especially when §2750(a) patently contravenes the former section.30 Section 2750 was
interpreted as “clearly provid[ing] that the results of a chemical test are admissible at trial if the
normal rules of search and seizure permit admissibility.”3 1
IV. Analysis

Regardless of whether Officer Sherwood informed Defendant of the penalty provision
prior to conducting the chemical test, the chemical blood results are admissible at trial under
§2750. The Delaware Supreme Court established clear precedent in Seth v. State. Seth states
that under §2750, the chemical test is admissible if the Fourth Amendment is not violated,

regardless of whether the officer informs the suspect of the penalty provision before

administering the test.32

 

21 1a at *4.

28 ld. ar *4 & n.12.

29 See State v. Bajjfone, 2008 WL 4726436, at *1-3 (Del. Com. Pl. Oct. 23, 2008). This Court has addressed the
implied consent statutes more recently, but those opinions do not address the intersection between §§ 2742 and
2750. See, e.g., State v. Sansone, Cr.A. No. 1306018766, at *6 (Del. Com. Pl. July 11, 2014) (denying a
suppression motion because the reading of the implied consent form was void post search warrant application).
30 Id. at *1.

31 Id. at *2.

32 Seth, 592 A.2d at 445 (“even if the officer had violated the implied consent law, any argument to exclude the
evidence is irrelevant. Section 2750(a) eliminates any defense to admissibility not implicating the Fourth
Amendment”).

The briefs before this Court rely heavily on State v. Cara'ona and State v. Betts.33 If
Cara'ona and Betts were the extent of precedent available to this Court, then the officer’s
inability to recall the sequence of events would potentially be problematic. However, these cases
are inapposite since neither case addresses the intersection of §2742(a) and §2750.34 lndeed,
§2750 renders any version of events regarding the sequence of the reading of the penalty
provision and blood draw irrelevant. Thus, whether Officer Sherwood read the penalty provision
prior to requesting the intoxilyzer and had Defendant’s blood drawn after Defendant refused, or
the officer filled out the Implied Consent Form when he completed the paperwork post-blood
draw, the law does not necessitate a finding of fact. Whichever version is accurate, 21 Del. C. §
2750(a) deems the Officer’s mistake immaterial to this C0urt’s present determination.

The parties’ failure to defer to Seth is understandable since precedent has generally

ignored the hierarchy of §§ 2742(a) and 2750(a). Perhaps the General Assembly could resolve

 

33 Defendant also reads the Delaware Supreme C0urt’s analysis in Flormory as supporting the proposition that once
a suspect is informed of the penalty provision, the chemical test cannot be performed. Defendant 's Memorana’um of
Law In Considering the Inaa'missibility of Chemical T est Results When the Arresting Policeman Has Instructed the
Arrestee Regarding the Impact of Refusal Pursuant to 21 Del. C. §2 740 at 5. Defendant candidly admits that the
decision does not expressly support his conclusion. Id. at 5 n.5. Flonnory is not cited in the State’s Response to
Defendant ’s Motion to Suppress and Memorana'um of Law.

In State v. Flonnory, the Delaware Supreme Court addressed a different issue than the present case. There,
the issue was whether a warrantless blood draw was reasonable under the Fourth Amendment, and the Court
interpreted Missouri v. McNeely to require a trial court to apply a totality of the circumstances test when there was
neither warrant nor exigency. See State v. Flonnory, 109 A.3d 1060, 1062-64 (Del. 2015); see also Missouri v.
McNeely, 133 S. Ct. 1552, 1558 (2013) (confronting the question of whether “the natural dissipation of alcohol in
the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant
requirement for nonconsensual blood testing in drunk-driving investigations”).

34 In State v. Cardona, defendant argued that a blood draw at a police station_instead of a hospital_was a per se
unreasonable search and seizure under the Fourth Amendment, despite not objecting when his blood was drawn by a
phlebotomist. See State v. Cardona, 2008 WL 5206771, at *1-2 (Del. Super. Dec. 3, 2008); see also State v.
Crespo, 2009 WL 1037732 (Del. Super. Apr. 17, 2009). The Court disagreed Cara'ona, 2008 WL 5206771, at *7-
9. In the C0urt’s analysis, it reiterated Seth’s interpretation of §§ 2740-2742, but did not mention §2750(a). Id. at
*3-4. State v. Betts concerned whether a police officer could inform the suspect of his right to refuse a blood draw
and still administer the chemical test. See State v. Betts, 2009 WL 388952, at *3-4 (Del. Super. Feb. 3, 2009). The
officer had checked the probable cause box on the Implied Consent Form, which indicated the officer would simply
proceed with the chemical test and would not inform the suspect of the penalty provision; however, the officer
testified at trial that he did read the penalty provision to the defendant before having the defendant’s blood drawn.
Id. at *3. Because the defendant did not resist the blood test, the Court found the search and seizure to be reasonable
under the Fourth Amendment. Id. at *7. The court again focused solely on §2742. Ia'. at *8-10. The Betts Court
did express the historical point that the implied consent laws were adopted to solve the conundrum of performing
chemical tests on unconscious suspects. Id. at *8.

the fog in the precedent’s narrative. The State did mention §2750 briefly toward the end of the
State ’s Response T 0 Defendant’s Motion to Suppress Ana' Memorandum of Law; however, the
State failed to discuss §2750’s Fourth Amendment considerations after arguing that Officer
Sherwood had probable cause to arrest Defendant. The State also briefly mentioned §2750 in its
closing argument at the Motion hearing, and defense counsel retorted that the section was
inapplicable, yet §2750 remained an afterthought in the parties’ arguments.

lronically, the language of §2750 is dispositive in the present case. Tuming to Fourth
Amendment considerations,35 Defendant makes no argument and, indeed, the record is clear that
Officer Sherwood had probable cause to arrest Defendant for suspicion of driving under the
influence.36 Likewise, Defendant postulates no argument, and there are no facts to suggest, that
Officer Sherwood physically forced Defendant to submit to the blood draw after Defendant
refused, which would trigger a totality of the circumstances analysis into whether Defendant’s
consent was voluntary.37 Finally, Defendant does not dispute that a qualified medical personnel
drew his blood.38 Therefore, because the implied consent law and the Fourth Amendment were
followed in administering the blood test, the test results are admissible at trial under 21 Del. C. §

2750.

 

35 See State v. Hobbs, 2015 WL 3507963, at *3 (Del. Super. May 29, 2015) (“the Delaware Supreme Court reads §
2750 as adding that, even if the right to refusal is not revealed, the evidence is, nonetheless, admissible, so long as
Fourth Amendment concerns are not implicated. The U.S. Supreme Court has clarified that Fourth Amendment
considerations are relevant where there is no probable cause, and the drawing of blood is not consensual.” (footnotes
omitted) (citing Missouri v. McNeely, 133 S. Ct. 1552 (2013))); see also State v. Powell, 2002 WL 1308368, at *3
(Del. Super. June 4, 2002) (“defendant’s rights must be analyzed under Fourth Amendment search and seizure law,
because when the police have probable cause to arrest a defendant and a bodily sample is appropriated ‘[s]ection
2750(a) [of Title 21] eliminates any defense to admissibility not implicating the Fourth Amendment.”’ (quoting Seth
v. State, 592 A.2d 436, 445 (Del. 1991))).

36 See generally State v. Maxwell, 624 A.2d 926 (Del. 1993) (blood draw and probable cause analysis); State v.
Pratt, 1984 WL 560777 (Del. Com. Pl. Aug. 15, 1984) (blood draw and probable cause analysis).

37 See State v. Cullen, 2016 WL 520997, at *3 (Del. Super. Feb. 9, 2016) (finding defendant coerced into giving his
consent for the blood draw and following a totality of the circumstances analysis).

38 See State v. Hartman, 1984 WL 553534, at *1 (Del. Super. Sep. 4, 1984) (“[§2746] expressly authorizes medical
technicians to withdraw blood, and phlebotomists are medical technicians”).

10

V. Conclusion

For the foregoing reasons, Defendant’s Motion to Suppress _is DENIED with prejudice.
/
IT IS SO ORDERED this 17th day of January, ZV. Trial in this matter will be

scheduled forthwith.

 

Shel@ermie,
Judge

11

