           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                          IN AND FOR KENT COUNTY

STATE OF DELAWARE,                    :
                                      :     I.D. No. 1403014647
      v.                              :
                                      :
TITUS W. HOBBS,                       :
                                      :
             Defendant.               :


                            Submitted: April 20, 2015
                             Decided: May 29, 2015

                                    ORDER

                     Upon Defendant’s Motion to Suppress.
                                  Denied.


Gregory R. Babowal, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State.

John R. Garey, Esquire of John R. Garey, P.A., Dover, Delaware; attorney for the
Defendant.




WITHAM, R.J.
State v. Titus W. Hobbs
I.D. No. 1403014647
May 29, 2015


      Upon consideration of the Defendant’s Motion to Suppress pursuant to
Superior Court Criminal Rule 41(f), the State’s Opposition, and the record of this
case, it appears that:
      1.     On September 19, 2014, Titus Hobbs (“Defendant”) moved to suppress
evidence obtained at the scene of his arrest, and at the police station where he was
detained. The Court heard oral argument concerning this motion on April 1, 2015.
Following the argument, both the State and Defendant filed supplemental briefs in
support of their respective positions concerning Defendant’s motion.
      2.     Corporal Edwin H. Justiniano (“Corporal Justiniano”) was dispatched
to the Royal Farms on Route 10 in Dover, DE, on the early morning of March 21,
2014. There had been reports of a pickup truck parked near the store, whose
occupant was asleep at the wheel. Upon arrival, Corporal Justiniano discovered
Defendant in the parking lot, asleep in the front seat of his blue Ford F-150 truck,
with the engine running. Attached to the truck was a camper. According to Corporal
Justiniano, the door to the Defendant’s truck was partially open. Defendant disputes
this part of Corporal Justiniano’s narrative, claiming that the door was closed. In any
event, Corporal Justiniano roused the sleeping Defendant, finding that a strong odor
of alcohol emanated from the truck’s cabin. Corporal Justiniano further observed
Defendant exiting the car with some difficulty, having to hold on to the side of the
truck for support.
      3.     Defendant’s behavior and overall demeanor led Corporal Justiniano to
believe Defendant was under the influence of alcohol. Upon questioning, Defendant

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State v. Titus W. Hobbs
I.D. No. 1403014647
May 29, 2015


revealed he had been drinking the prior evening. Corporal Justiniano also noted
Defendant’s mumbled speech. These factors together, prompted Corporal Justiniano
to conduct several field sobriety tests to determine Defendant’s level of intoxication.
Among these tests were: (1)an alphabet test; (2) a counting test; (3) a finger to nose
test; (4) a Horizontal Gaze Nystagmus (“HGN”) test; and (5) a Portable Breath Test
(“PBT”). According to Corporal Justiniano, Defendant failed all five sobriety tests.
      4.     Following Defendant’s deficient performance on the field tests, Corporal
Justiniano transported the Defendant to Troop #3 Station.           It was there that
Defendant’s blood was drawn in order to measure his blood alcohol level. The
procedure was performed by Hal Blades (“Mr. Blades”), the Delaware State Police
Phlebotomist. Although there is some dispute as to the events preceding the drawing
of blood, the parties agree that Defendant singed a consent form relating to the
procedure. Defendant claims he showed some reluctance to having his blood drawn,
but acquiesced as he believed the police would force the procedure on him, if he were
to refuse. Both Corporal Justiniano and Defendant, further agree that Defendant was
not told he could refuse the test. However, inspection of the executed consent form
reveals that the executor acknowledges his right to refuse.
      5.     Upon filing his motion to suppress the evidence obtained concerning his
sobriety on the morning in question, Defendant was represented by prior counsel. At
present, and during the oral argument, Defendant is/was represented by new counsel.
The Court, therefore, considers solely the arguments put forward by Defendant’s
counsel during oral argument, as well as in the supplemental briefing. This is, also,

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State v. Titus W. Hobbs
I.D. No. 1403014647
May 29, 2015


the preference intimated by Defendant’s current counsel at argument. Given this
substitution of counsel in the midst of Defendant’s pending motion, the Court will
forgo consideration of the tardiness implicated by a motion whose argument was
heard over six months from its filing. Moreover, the State points out that even the
initial motion’s filing was overdue. However, the Court does so in this situation
singularly, and at its discretion, purposefully avoiding any precedential treatment of
the motion.
      6.        Defendant’s motion to suppress is premised upon the blood test
constituting an unreasonable search and seizure, violating the U.S. and Delaware
Constitutions. Defendant formulates his argument in two parts: (1) the field sobriety
tests did not create probable cause, justifying the blood test; and (2) the consent form
was invalid, thereby necessitating the issuance of a warrant, prior to blood being
drawn.
      7.        As regards the first point, Defendant has failed to establish why the
results of the field sobriety tests were insufficient to establish the probable cause
required to conduct a blood test. Defendant’s sole contention is that only the HGN
test is certified by the NHTSA. The Court deems this of little consequence. In
Delaware, “[p]robable 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.”1 “[P]olice must present facts which suggest, when
those facts are viewed under the totality of the circumstances, that there is a fair

      1
          Lefebvre v. State, 19 A.3d 287, 292 (Del. 2011) (internal quotations omitted).

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State v. Titus W. Hobbs
I.D. No. 1403014647
May 29, 2015


probability that the defendant has committed a DUI offense.”2 Importantly this
information or these facts, need not be “sufficient evidence to convict.”3 Where
Defendant failed five field sobriety tests– in addition to the equally egregious fact that
Defendant was asleep at the wheel of a running car –an officer has established
probable cause to investigate further, and order a blood test.
      8.        The second part of Defendant’s argument necessitates consideration of
the U.S. Supreme Court’s holding in Missouri v. McNeely.4 In considering a Fourth
Amendment unlawful search and seizure argument, the U.S. Supreme Court ruled that
probable cause, in and of itself, was not enough to permit the involuntary drawing of
a suspect’s blood, without a warrant.5 With respect to the circumstances underlying
the case at bar, the drawing of Defendant’s blood would be contrary to McNeely and
the Fourth Amendment, where it was: (1) involuntary; and (2) done in the absence of
a warrant. Although there is no dispute that Corporal Justiniano did not obtain a
warrant, McNeely is, nonetheless, inapplicable as this Court finds Defendant to have
consented to the blood work.
      9.        Defendant argues that the blood test was administered without his
approval, as the consent form he signed was invalid. Therefore, under McNeely,


      2
          Id., at 292-293 (internal quotations omitted).
      3
          Id., at 292.
      4
          133 S.Ct. 1552 (2013).
      5
          Id.

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State v. Titus W. Hobbs
I.D. No. 1403014647
May 29, 2015


even if probable cause existed, Corporal Justiniano could not order Defendant’s blood
to be drawn, sans warrant. Defendant bases his invalidity argument on the fact that
the form was a boilerplate printout, which Defendant argues, was not intended for
consenting to blood being drawn. The form is, instead, said to be for searches of
premises and of physical persons. Further, reading the language of the form in a
highly technical manner, Defendant avers that the blood had to be drawn by an
“officer.” As per Defendant, Mr. Blades, the phlebotomist, was not an officer.
Lastly, Defendant takes issue with the fact that Corporal Justiniano did not inform
him of his right to refuse the blood test, and that a warrant would have to be issued,
in the event of such a refusal.
       10.     The Court finds Defendant’s position with regard to the opaqueness of
the consent form to be unpersuasive.                Rather than strengthening Defendant’s
argument, the Court deems the broadness of the form’s language to bolster the claim
that consent to blood work may be effectuated by the form. The Court sees the form
as intentionally indefinite, so as to encompass the various types of searches police
officers conduct. Therefore, Defendant’s zeroing in on the term “officer,” where Mr.
Blades is a phlebotomist employed by the Delaware State Police, strikes this Court
as precisely the type of argument the breadth of the form’s language was meant to
avoid.6 More importantly, as this is Defendant’s motion, the burden of proof is on


       6
         In addition, the Court recognizes the State’s citation to Black’s Law Dictionary, defining
“officer” broadly as a “[p]erson holding office of trust, command or authority in...government...or
other institution or organization.” Black’s Law Dictionary 1085 (6th Ed. 1990).

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State v. Titus W. Hobbs
I.D. No. 1403014647
May 29, 2015


him to provide support for the contention that “officer” is strictly limited to police
officers. Defendant has failed to do so.
      10.       Lastly, the Court addresses the argument that Defendant’s execution of
the consent form had no effect, as Corporal Justiniano did not inform him of his right
to refuse the blood test. As mentioned previously, although Corporal Justiniano
admits he did not inform Defendant of the necessity of a warrant, were Defendant to
not comply, the form executed by Defendant acknowledges the right to refuse a
search. Indeed, Defendant’s signature is directly below text to that effect. However,
of even greater significance is the fact that both the Legislature and the Delaware
Supreme Court have determined that “[a]n arresting officer is not required to advise
a suspect of any right to refuse testing...”7 The Delaware Supreme Court in Seth v.
State, reasoned that the Legislature did away with the requirement of consent to
testing by enacting 21 Del. C. § 2740 and § 2750.8 § 2740(a) provides that “any
person who drives, operates or has in actual physical control a vehicle...within the
State shall have been deemed to have given consent...to a chemical test or tests of that
person’s blood...”9 To this, the Delaware Supreme Court reads § 2750 as adding that,
even if the right to refusal is not revealed, the evidence is, nonetheless, admissible,




      7
          Seth v. State, 592 A.2d 436, 445 (Del. 1991) (emphasis added).
      8
          Id., at 436.
      9
          21 Del. C. § 2740(a).

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State v. Titus W. Hobbs
I.D. No. 1403014647
May 29, 2015


so long as Fourth Amendment concerns are not implicated.10 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.11 Such is not the
case here. Therefore, whether Defendant was informed of his right to refusal has no
bearing on the admissibility of the blood test evidence.
       11.       For the foregoing reasons, Defendant’s Motion to Suppress is DENIED.
       IT IS SO ORDERED.




                                           /s/ William L. Witham, Jr,
                                           Resident Judge


oc:    Prothonotary
cc:    Gregory R. Babowal, Esquire
       John R. Garey, Esquire




       10
          Seth, 592 A.2d at 445 (“[s]ection 2570(a) eliminates any defense to admissibility not
implicating the Fourth Amendment”).
       11
            McNeely, 133 S.Ct. 1552.

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