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

STATE OF DELAWARE, )
)
v. )
) Case No.1904007960
GARY SEXTON, )
)
Defendant. )
Submitted: November 12, 2019
Decided: February 14, 2020
Brianna M. Mills, Esq. Thomas A. Foley, Esq.
Deputy Attorney General 1905 Delaware Ave
820 N. French Street, 8 Floor Wilmington, De 19806
Wilmington, DE 19801 Altorney for Defendant

Attorney for the State of Delaware

MEMORANDUM OPINION AND ORDER ON
DEFENDANT’S MOTION TO SUPPRESS

Defendant Gaty Sexton (“Sexton”) was atrested on April 10, 2019, and charged with
driving under the influence of alcohol in violation of 21 Del C. § 4177(a) and
ovettaking/passing on the right in violation of 21De/ C. § 4117(b). On September 10, 2019,
Sexton filed the present Motion to Suppress, seeking to suppress evidence obtained following
his arrest, including the results of an intoxilyzer test, on the grounds that the detention lacked
probable cause.

The Court held a heating on the Motion on November 12, 2019. At the hearing, the
Court heard testimony from one witness, Delawate State Trooper Joseph Joannides. At the

conclusion of the hearing, the Coutt reserved decision. After a review of the record evidence,
applicable law, and arguments presented by the parties, the Court GRANTS Defendant’s
Motion to Suppress.
FACTS

Officer Joannides, who has worked patrol for the Delaware State Police for 15 years,
was the sole witness to testify at the November 12, 2019, suppression hearing. He testified
that on the evening of April 10, 2019, he responded to a vehicle collision that had occurred at
the intersection of Grubb and Sherwood Roads in Wilmington, Delaware. He arrived at the
scene at 8:29 p.m., and found that the drivers involved had pulled off into a neatby shopping
center. Delaware State Trooper Fuscellaro was already at the scene and was communicating
with Sexton, who was standing outside of his vehicle.

While Officer Fuscellato was speaking with Sexton, Officer Joannides stood behind
him and observed their interactions from a distance of five to ten feet. Initially, Officer
Joannides could not detect an odor of alcohol, but when he was approximately one foot away
from Sexton and spoke with him directly, he detected a “moderate” odor of alcohol. He
described Sexton as polite and cooperative, and observed that Sexton’s face appeared
“normal,” his eyes were watery and glassy, his speech was “good,” his dress was not out of
otder, and he did not have any difficulty maintaining his balance. He noted that Sexton
admitted to consuming two glasses of wine, but he could not recall if Sexton specified when
he had consumed the wine in relation to the accident. At this stage, he had no knowledge as
to the cause of the car accident.

Sexton refused to perform field sobriety tests, but offered to “blow into the machine.”

Officer Joannides testified that he administered a portable breathalyzer test (“PBT”), and the
teading was above the legal limit. Regarding his administering the PBT, Officer Joannides
explained that he confirmed the PBT’ was “functioning properly,” but he did not offer any
testimony as to its calibration, and he conceded that he could not confirm that he waited the

requisite 15-minute observation period before administering the test to Sexton.
PARTIES’ POSITIONS

It is Sexton’s position that his arrest was not supported by probable cause. He atgues
that the Court should not consider the PBT results because the State failed to lay the proper
foundation in that Officer Joannides did not testify that the PBT was calibrated and did not
comply with the observation period requirement. Sexton contends that, absent the PBT
results, there was insufficient probable cause to support his arrest for DUI.

The State concedes the lack of foundation for the PBT, but maintains that even without
the PBT results, under the totality of circumstances—namely, the refusal to perform field
sobriety tests, cat accident, odor of alcohol, watery glassy eyes, and admission to drinking—
Officer Joannides had probable cause to arrest Sexton for DUI.

ANALYSIS

On a motion to suppress, the State is requited to provide facts to establish probable
cause by a preponderance of the evidence.! To meet this standard, the arresting officer must
atticulate facts when considered in the totality of the circumstances that suggest there is a fait

probability that the driver was impaired at the time the driver was operating the vehicle.’

 

| Id. (citations omitted).
2 Rybicki v. State, 119 A. 3d 663, 670 (citing Lefebure v. State, 19 A.3d 287, 292-293 (Del. 2011)).

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It is well-established under Delaware law that for the Court to consider the PBT results
when determining whether the officer had probable cause, the State must lay a proper
foundation for the PBT. This includes establishing that the PBT was properly calibrated and
that the officer followed standard operating procedure in administering the test.>_ In this case,
the State failed to introduce any evidence regarding the calibration of the PBT’, a deficiency
which the State does not contest. Further, the State failed to establish that Officer Joannides
waited the required time period before administering the test. Officer Joannides testified he
could not recall whether he observed Sexton for the required 15-minute period before the test
was administered.4 Therefore, because a basis was not established, I give little weight to the
results of the PBT.

The State contends that the Court should consider Sexton’s refusal to perform field
sobriety tests as consciousness of his guilt. In support of this argument, the State points to
Church v. State, a case in which the Delawate Supreme Court held that “{a] defendant's refusal
to submit to testing may be used for any relevant purpose, including to show consciousness
of guilt.”5 However, this case is distinguish from Church because there the defendant refused

to take any test, including field sobriety tests and chemical tests.°

 

3 See Miller v. State, 4 A.3d 371, 374 (Del. 2010); State v. Beheler, 2010 WL 2195978, at *4 (Del. Com. Pl. April
22, 2010); State v. Pasawicz, 2012 WL 1392564 (Del. Com. Pl. March 16, 2012); State v. Aldossary, 2014 WL
12684303 (Del. Com. Pl. April 10, 2014).

4 In addition to Officer Joannides’ concession that he could not confirm whether he waited the required 15-
minute period before administering the PBT, Officer Joannides’ testimony established that in total, his
entite involvement at the scene lasted seventeen minutes; he arrived at 8:29 p.m., and Sexton’s arrest
occurred at 8:46 p.m.

5 2010 WL 5342963, at *2 (Del. Dec. 22, 2010).

6 Id at *1.
The facts of the present case differ from Church in that Sexton did not completely refuse
all available tests. ‘his case is more like State v. Smallwood, where this Court declined to find
consciousness of guilt where there was no “outright refusal” of alcohol tests.’ In Smallwood,
the police officer presented the defendant with three options: (1) field sobriety tests; (2)
Intoxilyzer test; or, (3) refusal of all tests. The defendant selected the third option, refusal of
all tests.2 This Court found that because the defendant chose one of the three options
presented to him, his refusal did not constitute an “outright refusal,” therefore the
“consciousness of guilt” described in Church was not applicable.'©

Here, Sexton’s conduct cannot be categorized as an outright refusal to submit to
alcohol-related tests. Although Sexton refused to participate in field sobriety tests, he
affirmatively offered to submit to an alternative testing procedure. Upon indicating that he
would “blow into the machine,” Sexton was offered—and complied with—the PBT test. I
find that Sexton’s refusal as to the field sobriety tests cannot under the facts constitute
consciousness of guilt.

When analyzing the facts in a DUI proceeding, probable cause generally rests on the
observations of the arresting officer, thus the Court must determine whether, under the totality
of the citcumstances, the officer had probable cause to arrest the defendant for DUI.'! The
Delaware Supreme Coutt has held that a traffic violation and odor of alcohol alone is not

sufficient to support a finding of probable cause for a DUI arrest.12 On the other hand,

 

7 State v. Smallwood, 2012 WL 5869624 (Del. Com. Pl. Nov. 9, 2012).

8 Id. at *1.
9 Id.
10 Td. at *8.

1 Lefeburev. State, 19 A.3d 287, 292-293 (Del. 2011).
12 See Rybicki v. State, 119 A. 3d at 671 (citations omitted).

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probable cause does exist when a traffic violation and odor of alcohol ate accompanied by
“rapid speech, admission to drinking, bloodshot and glassy eyes and a failed alphabet test.””!
Further, as the State correctly points out, the absence of a PBT reading does not inherently
preclude a finding of probable cause.'*

The State argues that the present case is similar to State v. Maxwell, where the Delaware
Supreme Court found that, under the totality of the circumstances, probable cause existed to
take the defendant into custody.!5 In Maxwell, the defendant was involved in a single-vehicle
accident.’6 At the scene of the accident, he told witnesses “we were drinking,” and the police
officer discovered numerous opened and unopened beer containers in and around the
defendant’s overturned vehicle.!7 One officer also testified that the defendant’s eyes appeared
glassy, and he presented with a “strong odor of alcohol.’”’® There, the Court concluded that
these factors, considered as a whole, wete sufficient to establish probable cause.”

The factors observed and testified to by Officer Joannides are manifestly less than
those described in Maxwell. First, in Maxwell, the defendant was involved in a single-car
accident, attributable to his failure to negotiate a left turn.2° In the present case, the traffic
accident was not a single-vehicle collision, and there was no evidence that Sexton caused the
accident or otherwise committed a traffic offense. Second, the Maxwe// defendant’s admission

to drinking was augmented by the presence of opened beer containets in and around his

 

13 Td. (quoting citing Lefebvre, 19 A.3d at 293).
14 See Miller, 4 A.3d at 371; Bease v. State, 884 A.2d 495 (Del. 2005).
15 624 A.2d 926 (Del. 1993).

16 Id. at 927.

17 Id at 927-928.
18 Id

19 Td. at 931.

20 Td. at 927.
vehicle.2! Here, although Sexton admitted to drinking two glasses of wine, Officer Joannides
could not testify as to when that consumption occurred, nor did he point to any evidence that
could otherwise indicate temporal proximity to the accident. Absent a time marker of when
alcohol was consumed, no rational inference can be drawn regarding intoxication.2? Third, in
Maxwell, the defendant’s interaction with police prior to his blood being tested was relatively
limited, but a witness reported that he “appeared dazed.”?3 Here, Officer Joannides did not
identify any behavioral abnormalities indicative of intoxication. To the contrary, he described
Sexton as “polite and cooperative,” with a “normal face” and “good speech.”

Excluding the results of the PBT and Sexton’s refusal to perform field sobriety tests,
Officer Joanides articulated the following observations: the two-vehicle accident of
undetermined cause, odor of alcohol, glassy eyes, and admission to drinking at an unspecified
time. Consistent with well-established Delaware law, this Court finds those factors alone to
be insufficient to support a finding of probable cause.2* The insufficiency is further
pronounced viewed under the backdrop of what is absent in this case: there was no evidence

of any traffic violation, much less erratic or egregious driving;?> stumbling;?° trouble

 

21 Jd. at 927-928.

22 See Bease, 884 A.2d at 500 (finding probable cause existed based on the officer’s “observations and the
rational inferences drawn therefrom”).

23 Td

4 See, e.g., State v. Beheler, 2010 WL 2195978 (Del. Com. Pl. April 22, 2010)(no probable cause where the
defendant committed a traffic violation but was not driving erratically, admitted alcohol consumption, eyes
were watery, and breath smelled of alcohol); State v. Mulholland, 2013 WL. 3131642 (Del. Com. Pl. June 14,
2013)(no probable cause where defendant committed traffic violation, failed one field sobriety test,
admitted alcohol consumption, had bloodshot eyes, and odor of alcohol).

25 See Bease, 884 A.2d. 495; Miller, 4 A. 3d 371; State v. Rothenberg, 2017 WL 2257381 (Del. Super. May 22,
2017); State v. Dopirak, 2017 WL 3129234 (Del. Super. July 4, 2017).

26 See Stevens v. State, 129 A.3d 206 (Del. 2015); State v. Zambini, 2012 WL 4789764 (Del. Com. PI. Feb. 22,

2012).
balancing;2” behavioral abnormalities;?* disheveled appearance; slurred or altered speech;*?

ot, flushed oor face.*!

CONCLUSION

For the foregoing reasons, I find that the State failed to prove by the preponderance

of the evidence that Officer Joannides had probable cause to arrest Sexton for DUI.

Accotdingly, Sexton’s Motion to Suppress is GRANTED.

IT ISSO ORDERED.

Abi Upwd-

Ale a Smalls,
Chie if) sms

 

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See Guilfoil v. State, 135 A.3d 78 (Del. 2016)(TABLE); State v. Oseguera-Avila, 197 A.3d 1050 (Del. Super.
2018).

See Church v. State, 11 A.3d 226 (Del. 2010) (TABLE); See Bease, 884 A.2d. 495; State v. Blood, 2009 WL
2859047 (Del. Com. Pl. May 13, 2009).

See Glass v. State, 1988 WL 61582 (Del. Super. June 13, 1988).

See Bease, 884 A.2d. 495.

See Lefebvre, 19 A.3d 287 (Del. 2011); State v. Ford, 2013 WL 2245006 (Del. Com. Pl. May 22, 2013).

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