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

STATE OF DELAWARE,

v.
Case N0.1611018151

BRITTANY A. ANDERSON,

\./\_/\/\_/\_/\/\/

Defendant‘.
Subrnitted: May 2], 2018
Decided: July 2, 2018
\X/illiam Raisis, Esquire Benjamin S. Gifford IV, Esquire
Deputy Attorrley General Attorrley At LaW
820 N. French Street, 7‘*‘ Floot 14 Ashley Place
Wilmington, DE 19801 Wilrnington, DE 19804
Afz‘omgyfor f/ye chzfe ofDe/aware Afz‘om@)for Déy@nd¢znf

DECISION AFTER TRIAL

SMALLS, C.J.

FACTS & PROCEDURAL HISTORY

The Defendant Brittany A. Anderson (hereinafter “Defendant”), Was arrested on
November 28, 2016, and charged With Driving Under the lnfluence (“DUI”), in violation of
21 De/. C. §4177, Failure to Remain Within a Single Lane, in violation of 21 De/. C. §4122(1),
and Possession of l\/[arijuana, in violation of 16 De/. C. § 4764(c). On l\/Iay 4, 2017, as a sanction
for the State’s failure to provide discovery as required by Court of Common Pleas Criminal
Rule 16, as ordered by the Court, l granted Defendant’s motion to exclude all evidence related
to Defendant’s blood draw and the chemical analysis of Defendant’s blood. On May 11, 2017,
Defendant filed a motion for reargument of the Court decision denying his motion to exclude
all evidence Which Was denied.1 Trial Was scheduled for l\/[ay 21, 2018. At trial, the Court
heard testimony, reviewed the l\/lotor Vehicle Recorder (“MVR”) and all other evidence
admitted. The case Was taken under advisement for the Court to consider both the issue of
probable cause and Whether When all the evidence Was considered, it proved the offenses
beyond a reasonable doubt

Delaware State Trooper McKenna (“McKenna”) testified that on November 28, 2016,
he Was the first responder to a 911 call involving an accident Where a vehicle had gone off the
main road and Was stopped in the backyard of a residence. McKenna testified that the vehicle
had hit some “boulders” or “large rocks” located in the residence’s front yard Which damaged
the vehicle. McKenna further testified When he arrived on scene, Defendant Was outside of
the vehicle crying and confused regarding her location. In addition, McKenna testified he

detected an odor of alcohol emitting from Defendant.

 

1 596 Opinion. §Zale 1/. Andemon, No. 1611018151, 2017 WL 3412157 (Del. Com. Pl. Aug. 9, 2017), C. J. Smalls.
2

On cross examination, McKenna testified that there were no photos taken of the
accident Furthermore, McKenna prepared his police report as an accident report and there
was no language regarding the alcohol odor in said report McKenna further testified he had
not seen Defendant driving the vehicle and since he believed this to be a DUI investigation,
he called another Trooper to assist with the investigation

Delaware State Trooper Kirchenbauer (“Kirchenbauer”) arrived on scene and saw
McKenna and Defendant standing outside of a vehicle. Kirchenbauer testified he immediately
smelled an odor of alcohol and marijuana and there was a clear plastic cup outside of the
vehicle and a second cup in the center console, which contained brown liquid inside.
Kirchenbauer further testified that Defendant admitted to driving but was not sure how the
accident occurred. Kirchenbauer testified that Defendant later admitted to drinking a couple
beers. Furthermore, Defendant stated she did not know where she was and was crying with
makeup running down her face. At that time, Kirchenbauer asked Defendant to perform field
sobriety tests.

During the Horizontal Gaze Nystagmus (“HGN”) test, Kirchenbauer testified that
Defendant had difficulty with her eyes following the pen without moving her head and prior
to beginning the test, Defendant stuck out her tongue.2 The State introduced the l\/lotor
Vehicle Recorder (“l\/IVR”)3 and pointed out that Defendant was swaying back and forth
during the HGN test. The second field test administered was the walk and turn test

Kirchenbauer testified that during the test Defendant exceeded the amount of steps she was

 

2 The State is not relying on the HGN test since the Trooper was not qualified to administer it.
3 State’s Ex/az'/az'z‘ 7.

instructed to take and failed to place her feet “heel to toe.” The MVR failed to show how
Defendant placed her steps. The third and final test was the balance test During the balance
test, Defendant was unable to keep her leg in the air for the required time allocated. The MVR
showed Defendant struggling to keep her foot in the air and she stated to the Trooper, “l am
really trying.” Ultimately, Defendant was placed under arrest for DUI. While placed in the
back seat of the police car Defendant was asked her age which she quickly responded nineteen
(19), and then laughed and stated, “I mean, twenty-one (21).’7

On cross examination, Kirchenbauer testified that there were no photos taken of the
accident and the alleged cups seen near and in Defendant’s vehicle were thrown away.
Furthermore, Kirchenbauer testified that Defendant’s bloodshot, glassy, and watery eyes could
have been caused by crying. During cross examination, defense counsel asked Kirchenbauer
if he was aware that his vehicle headlights created a huge shadow that could have distracted
Defendant during the walk and turn test Defense counsel also asked Kirchenbauer if he was
aware of the National Highway Traffic Safety Administration (“NHTSA”) regulations that the
officer should stay as still as possible so not to distract the Defendant ln addition, defense
counsel pointed out on the MVR that Kirchenbauer failed to instruct Defendant to look at
her feet during the walk and turn test; he only told her to look down at his feet during the
instructions Defense also questioned Kirchenbauer about the alleged accident and if he had
inquired about any injuries Defendant may have sustained Lastly, defense counsel inquired
and stated to Kirchenbauer that this was a cold November night where Defendant seemed to

be shivering when observed on the MVR and if this could affect her ability to balance on one

leg.

LEGAL STANDARD

To establish probable cause for a DUl arrest, the state “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 DUI offense.”4 This totality
consideration is based on “the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.”5 “The Court must examine the
totality of circumstances surrounding the situation as viewed through the ‘eyes of a
reasonable trained police officer in the same manner or similar circumstances, combining the
objective facts with such an officer's subjective interpretation to those facts.”’6

Probable cause to arrest for DUI rests upon the observations of the arresting officer,
which includes the driver's performance on field sobriety tests.7 ln order to determine if field
tests are reliable, the Court must decide if the field tests were administered in accordance with
the NHTSA standards.8 When field tests are not administered as required by NHTSA
guidelines, the reliability of such tests are subject to question when determining probable

cause.9 The facts as established by the State are sufficient to support a finding of probable

cause to take the Defendant into custody for further testing.

 

4 l.ej%hyre y. .Slaz‘e, 19 A.3d 287, 293 (Del. 2011).

5 §`Zaie a C¢zmbm, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008) (quoting Sz‘afe a Maxu)e//, 624 A.2d 926,
928 (Del. 1993)).

6 §L‘az‘e v. Kane, No. 1210019022, 2014 WL 12684290, at *4 (Del. Com. Pl. Feb. 12, 2014); fee Woo@) y. Sz‘az‘e,
765 A.2d 1257, 1262-64 (Del. 2000).

7 St¢zl‘e y. Mu/ho//and, 2013 WL 3131642, at *4 (Del. Com. Pl. June 14, 2013) ¢z'z'z'n<g Lefebw”e at 293.

8 Mu//Jo//and at *5, rating Slm‘e a Mz`m`rterr, 2006 WL 3844201, *5 (Del.Super.Dec.Zl, 2006).

9 Id.

However, when determining the issue of guilt, the burden of proving each and every
element of the offense beyond a reasonable doubt rests on the State.10 A reasonable doubt is
not a vague, impulsive or imaginable doubt, “but such a doubt as intelligent, reasonable and
impartial men may honestly entertain after a conscience consideration of the case.”11 Thus, a
reasonable doubt is a “substantial doubt.”12 That is, a reasonable doubt “means a substantial
well-founded doubt arising from a candid and impartial consideration of all the evidence or
want of evidence.”13 When a defendant argues that the evidence is insufficient to support the
verdict, the relevant inquiry is whether, considering the evidence, including all reasonable
inferences to be drawn therefrom, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.14

As trier of fact, the Court is to assess the credibility of the witnesses and, where there
is a conflict in the testimony, to reconcile these conflicts, “if reasonably possible[,] so as to
make one harmonious story.”15 In doing so, the Court takes into consideration the demeanor
of the witnesses, their apparent fairness in giving their testimony, their opportunities in hearing
and knowing the facts about which they testified, and any bias or interest they may have

concerning the nature of the case.16

 

10 11 De/. C. § 301; Flm‘e v. M¢zl‘m/%yfr/éze, 215 A.2d 443, 449 (Del. Super. 1965).

11 Matui‘/i¢y{r/ée, 215 A.2d at 449.

12 M_

13 Sl‘az‘e v. De]s.r;r.r»f\'i'wz‘z`ne:;, 2014 WL 7671040, at *4 (Del. Com. Pl. Dec. 5, 2014) (quoting Siate a Wn<'g/yz‘, 79 A.
399, 400 (Ct. Gen. Sess. 1911)) (internal quotation marks omitted).

14 C/azm'/J v. jfaz‘e, 11 A.3d 226 (Table) (Del. 2010) 2010 \X/L 5342963 at *1; cf£f;{g Dz`xon y. Sl‘afe, 567 A.2d 854,
857 (Del.1989) (citing]a¢'kyon a Vz');gz`m'a, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

15 N¢zi’/ Gr¢zn<ge Mu!. Im. Co. 0. Ne!ron F. Daw`r, ]r., ez‘. a/., 2000 \X/L 33275030, at *4 (Del. Com. Pl. Feb. 9, 2000).
16 See Stm‘e a W€rng//, 2008 WL 2855030, at *3 (Del. Com. Pl. Apr. 22, 2008).

Title 21 De/. C. § 4177(a)(1) provides that, “[n]o person shall drive a vehicle . . . when
the person is under the influence of alcohol,” and Section (a)(4) provides that “such person
shall not drive a motor vehicle when the person's alcohol concentration is .08 or more.”17
Therefore, in order for a person to be found guilty under Section 4177, the State must prove,
beyond a reasonable doubt, that the defendant was under the influence of alcohol or drugs
at the time of driving.18

DISCUSSION

For the forgoing reasons, l find there was probable cause to take the Defendant into
custody for DUI, but under the totality of the evidence, when considering all the testimony
and other evidence, l find that such evidence fails to prove beyond a reasonable doubt the
Defendant’s guilt of the offenses charged. In reaching this conclusion l observed that this
Court excluded the results of the chemical analysis of Defendant’s blood in a prior opinion
because of a discovery violation.

The only evidence provided at trial of the accident is that the Trooper came upon the
Defendants vehicle in a personal resident’s yard. There is no testimony or reconstruction
analysis of how the accident occurred. There is evidence that there were cups present at the
accident scene but there is no testimony regarding the contents of the cups or if their
contents contained an alcohol beverage The testimony indicates that the field tests were

administered on a cold November night The State does not rely upon the HGN test

 

17 Del. Code Ann. tit 21, § 4177 (\X/est).
18 Lewz'r a Szale, 626 A.2d 1350, 1355 (Del. 1993).

because the Trooper did not qualify as a person who could administer such test, which
leaves only the walk and turn and balance tests.

During the walk and turn test, Kirchenbauer failed to instruct the Defendant to look
down at her feet throughout the test and when he moved to the side to get a better view of
her footing, his movement appears to cast a large shadow in Defendant’s path. Defense
argues this shadow is significant but I find little weight in this argument While there was a
shadow of the Trooper, l fail to see how that could have altered Defendant’s performance
on the walk and turn test However, the NHTSA instructions provide that the instruction
given to the Defendant is a vital part of the test evaluation Therefore, l give little weight to
this test because while the testimony indicates the Trooper told the Defendant to look down,
it is not clear whether he complied with the NHTSA instructions.

Defendant’s performance on the balance test indicate that she swayed during
instructions, put her foot down, and the test was terminated early for her safety. However,
Kirchenbauer failed to inquire if Defendant believed she sustained any injuries from the
alleged car accident prior to administering this test This is a factor which the Trooper
should have inquired prior to the test to rule out any related injury. Because of this
unknown issue, the value of the test results, while considered, must be evaluated in light of
this fact which could affect its reliability.

ln sum, the evidence of alleged intoxication including the accident, confusion,
admission of drinking alcohol, and trouble with balance were enough to arrest Defendant for
DUI. However thereafter, the evidence becomes murky as to when the Defendant had

recently consumed alcohol. There is no testimony about the time of day Defendant admits

to drinking There is no evidence to the alleged cups or their contents. In the l\/IVR,
Defendant does not appear to be slurring her words or swaying while standing.
Consequently, based upon the evidence in the record, the State has failed to prove beyond a
reasonable doubt, the offenses charged on Defendant

THEREFORE, Defendant is found NOT GUILTY of Count 1; Driving Under the
Influence of Alcohol and NOT GUILTY of Count 2; Failure to Remain within a Single
Lane. The State entered a Nolle Prosequi to the Possession of l\/larijuana charge prior to
trial.

IT IS SO ORDERED.

z ex J. Smf\]ls,
Jl'lir:f]udge

