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

STATE OF DELAWARE, )
)
)
v, ) Cr. A. No. 14070022138
)
DANIEL SLANEY, )
)
Defendant. )
)
Submitted: December 23, 2015
Decided: January 20, 2016
William H. Leonard, Esquire Joe Hurley, Esquire
Deputy Attorney General 1215 King Street
Department of Justice Wilmington, DE 19801
820 N. French Street, 7th Floor Attorney for Defendant
Wilmington, DE 19801
Attorney for Plaintiff

MEMORANDUM OPINION AND ORDER
ON DEFENDANTE MOTION TO REARGUE

On July 27, 2014, Daniel Slaney (“Defendant”) was arrested and charged with Driving
Under the Inﬂuence of Alcohol, in violation of 21 Del. C. § 4177, and other related trafﬁc
offenses. On December 9, 2014, Defendant moved to suppress evidence obtained as a result of
his arrest. The Court heard the motion on December 1, 2015 and found that the arresting ofﬁcer
had probable cause to arrest Defendant for driving under the inﬂuence of alcohol (“DUI”). As a
result, the Court denied Defendant’s motion. On December 7, 2015, Defendant timely noticed

the present Motion to Reargue (the “Motion”), and moved for reconsideration by the Court. The

State ﬁled a response on December 23, 2015. This is the Court’s ﬁnal decision and order on the
Motion.
FACTS

At the suppression hearing, the State presented Corporal Troy Frey (“Corporal Frey”) and
Corporal Matthew Calio (“Corporal Calio”) as witnesses. Corporal Frey testiﬁed that, on July
27, 2014, at approximately 12:04 am, he was located at the intersection of Rt. 896 and Glasgow
Avenue when he saw Defendant driving a silver pickup truck, revving the engine loudly and
accelerating quickly, traveling southbound on Rt. 40. Defendant drove past Corporal Frey, and
began tailgating another vehicle. At that point, Corporal Frey began to pursue Defendant.
Corporal Frey observed Defendant swerving back and forth behind the car Defendant was
tailgating. Defendant then turned into a neighborhood, and Corporal Frey activated his
emergency equipment. Although Defendant slowed down while driving over speed bumps in the
neighborhood, he did not stop. Corporal Frey drove next to Defendant, rolled down his window,
and yelled at Defendant to pull over. At that point, Defendant pulled over.

When Corporal Frey made initial contact with Defendant, he observed that Defendant
had a dazed look on his face, and the odor of alcohol on his breath. Corporal Frey testiﬁed that
Defendant claimed that he was ‘gooﬁng’ around, but admitted that he should not have been
driving in that manner. At Corporal Frey’s request, Defendant turned off the vehicle, and handed
him the keys. Corporal Frey then called the dispatcher and informed Corporal Calio of the stop.

Following Corporal Frey’s testimony, the State presented Corporal Calio as its next
witness. Corporal Calio also saw Defendant traveling on Rt. 40, however, at the time, he was
ﬁnishing up another investigation. After that investigation concluded, he met with Corporal Frey

and continued the investigation of Defendant. Corporal Calio testiﬁed that upon his initial

contact with Defendant, he smelled a moderate odor of alcohol on Defendant’s breath, and
observed Defendant’s eyes to be glassy. Defendant apologized for his driving and acknowledged
that he had been driving about ﬁve feet behind the other vehicle. He, however, claimed that he
was joking around since he knew the other driver. Corporal Calio asked for the keys to
Defendant’s truck, but Defendant could not locate them because he had already given them to
Corporal Frey. Defendant also admitted to drinking three beers prior to driving.

Corporal Calio continued his investigation and administered three National Highway
Trafﬁc Safety Administration (“NHTSA”) ﬁeld sobriety tests: the horizontal gaze nystagmus
(“HGN”) test; the walk-and-tum test, and; the one-leg stand test.1 Corporal Calio also
administered a portable breathalyzer test, which showed that Defendant’s blood alcohol content
was over the legal limit. At the hearing, Defendant challenged Corporal Calio’s administration
of the ﬁeld sobriety tests, arguing that he failed to follow NHTSA guidelines.

In giving its ruling, the Court focused on the testimony of Corporal Calio because he was
the ofﬁcer who engaged with Defendant the most and made the arrest. On cross-examination,
Corporal Calio acknowledged that he did not conduct the HGN test in compliance with NHTSA
standards, and as a result, the Court suppressed evidence of the HGN test. The Court found that
Corporal Calio complied with the NHTSA standards in conducting the walk-and—turn and one—
leg stand tests, and relied on the evidence from those tests. Ultimately, the Court found that
Corporate Calio had probable cause to arrest Defendant under the totality of the circumstances.

STANDARD OF REVIEW
The Court of Common Pleas Criminal Rules do not speciﬁcally address motions for

reargument, however, pursuant to CCP Criminal Rule 57(b), “[i]f no procedure is speciﬁcally

' The State presented evidence establishing that Corporal Calio was trained and certiﬁed to conduct all three tests.
State Exs. 1 and 2.

prescribed by Rule, the Court may proceed in any lawful manner not inconsistent with these

9,

Rules or with any applicable statute. Thus, when presented with a motion to reargue in the

criminal context, this Court relies on the authority of Court of Common Pleas Civil Rule 59(6),

which governs motions for reargument in civil matters.2

Under Court of Common Pleas Civil Rule 59(e), “[a] motion for reargument is the proper
device for seeking reconsideration by the [ ] Court of its ﬁndings of fact, conclusions or law[,] or
judgment.”3 A motion for reargument, however, does not entitle the moving party to merely
reiterate arguments that were previously presented to the Court,4 nor does it provide the moving
party with an opportunity to present new arguments not raised in the original proceeding.5 The
Court will deny the motion to reargue unless the moving party shows that the Court either has
overlooked a controlling precedent or legal principle, or has misapprehended the law or facts in a
manner that would change the outcome of its decision had it been correctly or fully informed.6 A
party seeking reargument “must demonstrate newly discovered evidence, a change in the law[,]

or manifest injustice.”7

DISCUSSION
In his Motion, Defendant asserts a number of reasons why he should be entitled to
reargument. Many of these assertions, however, are arguments previously presented to and
denied by the Court. First, Defendant rehashes his argument that Corporal Calio failed to inquire
about Defendant’s understanding of the walk-and-tum test. At the suppression hearing, the

Court addressed this argument and found Corporal Calio’s inquiry of the Defendant about

2 See Parisan v. Cohan, 2012 WL 1066506, at *1 (Del. Com. Pl. Mar. 29, 2012); see also State v. Munzer, 2009 WL
206088, at *1 (Del. Com. Pl. Jan. 9, 2009). _ _
3 imam, 2012 WL 1.0 ' _ '0, at *1 (quoting wager; Inc. v. ﬁrewall, 260 A.2d 701, 702 (Del. 1969)).
4 ﬁ'ég'mm, LLC v. 3053.13, ezig‘irrmance Indus., {1?ng 1,3313 WL $503-$311, at *1 (Del. Com. Pl. Oct. 2, 2013) (citing
Strong v. Wells Fargo Bank, 2013 WL 1228028, at *1 (Del. Super. Jam. 3, 2013)).
5 Umphenour v. O‘Connor, 2011 WL 2671916, at *1 (Del. Com. Pl. July 1, 2011).
: Parisan, 2012 WL 1066506, at *1 (citing Beatty v. Smedley, 2003 WL 23353497 (Del. Super. Mar. 12, 2003)).
Id.

 

whether he had any questions about the walk-and-turn test to be sufﬁcient given the totality of
the circumstances. The Court noted that, Defendant had previously asked Corporal Calio
questions during the stop. Thus, Defendant’s afﬁrmative statement that he did not have any
questions about the walk-and-turn test demonstrated that he understood what was required of
him to perform the test. Therefore, Defendant’s argument on this point fails.

Second, in his Motion, Defendant presents his previously raised argument that his
performance on the ﬁeld sobriety tests was insufﬁcient to support a ﬁnding of probable cause.
Speciﬁcally, Defendant argues that, because Corporal Calio told Defendant that his performance
on the ﬁeld sobriety tests was ‘borderline’ at the time he administered the tests, “it seems, on its
face, incongruent for the [C]ourt to decide that the defendant has failed [the sobriety tests].”8
The Court, however, places little weight on Corporal Calio’s ‘borderline’ comment to Defendant
because Corporal Calio found that Defendant was impaired based on Defendant’s performance.
Corporal Calio testiﬁed that during the walk-and—turn test, Defendant showed two out of the
eight possible clues. Corporal Calio also testiﬁed that during the one-leg stand tests, Defendant
showed three out of the four possible clues. Based on Corporal Calio’s testimony, the Court

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found that Defendant’s performance on the ﬁeld tests was poor. Thus, coupled with the other

indicators observed by the ofﬁcers, a ﬁnding of probable cause was warranted. Hence, Corporal
Calio’s description of Defendant’s performance on the ﬁeld sobriety tests as ‘borderline’ does
not preclude the State from being able to rely on the ﬁeld sobriety tests to establish probable

cause.

8 Deft. Mot. to Reargue, 11 6.

9 According to NHTSA’s guidelines, two or more clues on the walk-and-turn test suggests a 68% probability that the
defendant has a BAC of 0. 10 or higher. In addition, two or more clues on the one-leg stand test suggests a 65%
probability that the defendant has a BAC of 0.10 or higher?

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“Probable cause exists where the facts and circumstances within the police ofﬁcer’s
knowledge, and of which the police ofﬁcer had reasonably trustworthy information, are
sufﬁcient in themselves to warrant a person of reasonable caution to believe that an offense has
been or is being committed.”10 In establishing probable cause, a police ofﬁcer must be able to
show that under the totality of the circumstances, there is a fair probability that criminal activity
is occurring or has occurred.11 While certain factors alone might not establish probable cause, in
considering the totality of the circumstances, multiple factors, when coupled together, may
establish probable cause.12 Thus, the State was able to establish its burden of probable cause
based on Defendant’s performance on the ﬁeld sobriety tests in addition to the other evidence it
presented—Le. Corporal Calio’s observations of moderate odor of alcohol, admission to drinking
three beers prior to driving, glassy eyes, Corporal Frey’s observations of Defendant swerving
and speeding while driving, and the result of the PBT test. Thus, Defendant’s argument on this
point also fails.

Third, Defendant rehashes his argument that the Court improperly considered the results
of the walk-and-turn and one-leg stand ﬁeld sobriety tests, because Corporal Calio failed to
administer the ﬁeld tests in compliance with NHTSA. In making this argument, Defendant
claims that the Court overlooked the controlling precedent of State v. Ministero” and Powers v.

4

State.1 Defendant claims that Corporal Calio should not have administered the tests after

Defendant informed him of a previous knee injury. The Court addressed this argument at the
suppression hearing. The Court acknowledged that under Ministero, it can disregard the results

of a ﬁeld test when an investigating ofﬁcer administered the test knowing that the defendant had

‘0 Bease v. State, 884 A.2d 495, 498 (Del. 2005).
” Miller v. State, 4 A.3d 371, 373 (Del. 2010).

12 State v. Breza, 2011 WL 6946980 at *5 (Del. Com. Pl. Dec. 20, 2011).
‘3 2006 WL 844201 (Del. super. May 30, 2006).
‘4 1999 WL 1847353 (Del. Com. P1. Jun. 17, 1999).

 

been injured. The injury, however, must present some physical disability that would prevent the

15 Based on the

defendant from being able to appropriately perform the physical ﬁeld tests.
uncontroverted evidence in the record, the Court found that Defendant’s previous injury did not
constitute a disability that would affect his ability to perform the ﬁeld tests. Although Defendant
speciﬁed that he had a prior knee injury, his responses to Corporal Calio’s follow-up inquiry on
his ability to perform the tests all indicated that Defendant would be able to perform the test
appropriately.16 In fact, Corporal Calio asked Defendant whether he was “okay” both before and
after administering the walk-and-turn test, and Defendant stated that he was ﬁne. Moreover,
during the one—leg stand test, Corporal Calio asked Defendant if he wished to use his leg that had
not been previously injured, and Defendant declined, opting to use the leg with his previous
injury. Hence, the Court did not overlook the controlling precedent of Ministero and Powers;
instead, the Court found that Defendant’s previous injury did not constitute a disability that
would hinder him from being able to perform the ﬁeld tests. Therefore, Defendant’s argument—
which was previously presented to the Court—that the Court improperly considered the results
of the walk-and-turn and one-leg stand ﬁeld sobriety tests fails.

Finally, Defendant argues that the Court erred in failing to speciﬁcally address certain
evidence produced by Defendant. That is inaccurate. The Court considered all of the evidence
presented and based its decision on the totality of the record before it. Although the Court did
not speciﬁcally list all of the evidence that the parties presented, the Court summarized the
evidence pertinent to the ﬁnding of probable cause. Indeed, the Court noted Defendant’s

admission to drinking alcohol prior to driving, his poor performance on the one-leg stand and

walk-and-turn tests, and the result on the PET test as its basis for denying Defendant’s motion to

‘5 Ministero, 2006 WL 844201, at *4; Powers, 1999 WL 1847353, at *2 n. 2.
16 Speciﬁcally, Corporal Calio asked Defendant how his knee injury currently affected him, whether he was in
therapy and whether he would still be able to perform the test.

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suppress. Under the totality of circumstances—which encompasses all of the facts and evidence
presented—the Court found that Corporal Calio had probable cause to arrest Defendant for

DUI.17 Therefore, Defendant’s argument on this point fails.
CONCLUSION

For the foregoing reasons, Defendant’s Motion to Reargue is DENIED and the matter

will be scheduled for trial.

   

IT IS SO ORDERED this 20th day of January,

 

Judge

17 The Court notes that while it did not address all of the evidence presented by Defendant, it also did not address all
of the evidence presented by the State. Defendant claims that the Court should have addressed Defendant’s
openness, honesty, cooperation and demeanor; awareness of his actions and explanation of ‘gooﬁng off;’ normalcy
in exiting his vehicle; unaffected speech, and; balance and posture. Even if the Court did address those facts
speciﬁcally in its ruling, the Court’s ﬁnding of probable cause would not have changed. The State presented
evidence of Defendant’s speeding and swerving while driving, as well as his initial reluctance to stop his vehicle
while Corporal Frey’s emergency equipment was activated. The State also presented evidence that Defendant
exhibited a moderate odor of alcohol on his breath, glassy eyes, and a dazed look on his face. This evidence, coupled
with the evidence that the Court highlighted in its ruling, properly supports a ﬁnding of probable cause.

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