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


STATE OF DELAWARE,                              )
                                                )
                                                )
              v.                                )          Cr.A. No. 1506005389
                                                )
DIANE LEONE,                                    )
                                                )
       Defendant.                               )
                                                )


                                 Submitted: February 22, 2016
                                   Decided: June 13, 2016


Katherine C. Butler, Esquire                               Jason R. Antoine, Esquire
Office of the Attorney General                             1526 Gilpin Avenue
820 North French Street                                    Wilmington, DE 19806
Wilmington, DE 19801                                         Attorney for Defendant
  Attorney for the State of Delaware


                        MEMORANDUM OPINION AND ORDER
                       ON DEFENDANT’S MOTION TO SUPPRESS



       On June 7, 2015, following the investigation of a two-car motor vehicle accident,

Defendant Diane Leone (“Leone”) was arrested for Driving Under the Influence (“DUI”) in

violation of 21 Del. C. § 4177(a)(2). On December 30, 2015, Leone noticed the present Motion

to Suppress Evidence (the “Motion”), challenging whether the arresting officer had probable

cause to believe Leone was driving under the influence of drugs. Leone contends that the officer

lacked probable cause to arrest because he could not specifically identify the drug or drugs

Leone was allegedly under the influence of and therefore, lacked sufficient knowledge to form a

basis as to which crime Leone committed.
        On January 28, 2016, the Court heard argument on the Motion from both Leone and the

State. The Court then reserved decision and ordered supplemental briefing. Leone’s sole

contention is that at the moment of Leone’s arrest, Seitz did not possess “knowledge of facts”

sufficient to constitute probable cause.1 Leone argues that according to the statutory definition

of “drug” it is only illegal to drive under the influence of a controlled substance. Simply put,

Leone contends that unless an officer of the law can identify prior to arrest, as controlled

substances, the drug or drugs impairing a would-be defendant’s driving, reasonable suspicion

could never blossom into probable cause to arrest for DUI.


                                                 FACTS

        On June 7, 2015, Brenda Santoyo-Benicio (“Benicio”) stopped her vehicle to pay a toll

on southbound Interstate 95. While Benicio waited to pay the toll, Leone’s vehicle rear-ended

Benicio’s. After the collision, Benicio and Leone moved their vehicles to the side of the road.

        At the side of the Interstate, Benicio attempted to exchange insurance information with

Leone, however, observing that Leone was “slurring her words and stumbling,” decided to

contact the police.2 In speaking to Benicio, Leone seemed incoherent and required Benicio’s

assistance to stand.3

        Dispatch sent Corporal Seitz of the Delaware State Police (“Seitz”) to the scene. Upon

arrival, Seitz observed Leone seated in her vehicle leaning on the door frame. Seitz reported that

Leone was unable to maintain her balance and that her pupils were extremely constricted and

watery. Leone indicated that she was having problems with her eyes caused by prescription eye

drops which impaired her vision. Leone did not provide Seitz with an eye drop prescription, but


1
  Def.’s Mot. p 3 (citing State v. Cooley, 457 A.2d 352, 355 – 56 (Del. 1983)).
2
  State Mot. ¶ 2.
3
  Id.
                                                     2
did provide Seitz a bottle of what appeared to be generic eye drops used to treat bloodshot eyes.4

Seitz did observe multiple prescription pill bottles containing unidentified pills inside Leone’s

vehicle and her purse. Some of these bottles had observable warnings that they were for sleep or

may cause dizziness. Leone indicated that she was driving to Florida and planned on sleeping at

the side of the road “until everything got better.”5

        When Seitz requested that Leone exit the vehicle Leone used the door for balance. As a

precautionary measure Seitz asked Leone to walk to the rear of her vehicle but Leone was unable

to keep her balance and Seitz had to catch and stabilize her.6 Seitz asked Leone multiple times to

stand up straight but Leone continued to lean on her vehicle.7 Seitz placed Leone under arrest

for suspicion of driving under the influence of drugs, whereupon Leone was taken to Delaware

State Police Troop 6 Barracks and administered a blood test.

                                       LEGAL STANDARD

    A. “Drug” Statutory Definition

    “The goal of statutory construction is to determine and give legal effect to legislative

intent.”8 Where a statute is unambiguous, the Court applies the literal meaning of the statutory

language.9    A statute is ambiguous if the statute “is reasonably susceptible of different

conclusions or interpretations.”10

    Pursuant to 21 Del C. § 4177(c)(6) a “drug” is defined as any “substance or preparation

defined as such by Titles 11 or 16 [of the Delaware Code][,] or which has been placed in the



4
  Mot. Tr. p. 49.
5
  Mot. Tr. p. 50.
6
  Mot. Tr. p. 52.
7
  Id.
8 Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999).
9
  Dennis v. State, 41 A.3d 391, 393 (Del. 2012).
10 Id. (internal citations omitted).


                                                   3
schedules of controlled substances.”11 According to 16 Del. C. § 4701(15) a “drug” is defined in

part, as a “. . . substance[ ] intended for use in the diagnosis, cure, mitigation, treatment or

prevention of disease in man . . . [or] intended to affect the structure or any function of the

body.” Similarly, 11 Del. C. § 222(8) defines a “drug” as “any substance or preparation capable

of producing any alteration of the physical, mental or emotional condition of a person.”

     B. Probable Cause

     For a motion to suppress, the State must establish, by a preponderance of the evidence, that

Leone’s arrest was supported by probable cause.12 Probable cause is “an elusive concept which

avoids precise definition . . . [i]t lies somewhere between suspicion and sufficient evidence to

convict.”13 Probable cause requires that the arresting police officer “possess a quantum of

trustworthy factual information sufficient to warrant a [person] of reasonable caution in believing

that a DUI offense has been committed.”14 To satisfy this standard, 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 DUI offense.”15                 “That hypothetically

innocent explanations may exist for facts learned during an investigation does not preclude a

finding of probable cause.”16

        Pursuant to 21 Del. C. § 4177(a)(2), it is prohibited to drive a vehicle while one is “under

the influence of any drug.”17 An individual is under the influence when that person, due to

alcohol or drugs, is “less able than a person would ordinarily have been, either mentally or


11
   21 Del. C. § 4177(c)(6). Inexplicably, Leone omitted this portion of the definition from her brief in
support of this Motion.
12
   State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct 14, 2010).
13
   Hovington v. State, 616 A.2d 829 (Del. Super. 1992).
14
   Lefebvre v. State, 14 A.3d 287, 293 (Del. 2011).
15
   Id.
16
   Id.
17
   21 Del. C. § 4177(a)(2).
                                                     4
physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a

vehicle.”18

                                           DISCUSSION

      A. “Drug” Statutory Definition

      Leone failed to consider in its entirety, Section 4177’s definition of “drug.” This omission

undercuts Leone’s argument that it is only illegal to drive under the influence of an identified

controlled substance since the ambit of the definition reaches far beyond the realm of controlled

substances and prescription medications.

      Theoretically, the State may charge an individual for a drug-related DUI in a broad range of

circumstances. Pursuant to Section 4177 and Title 16’s definition of a drug, an individual may

be charged who is impaired by substances intended for the diagnosis, cure, mitigation, treatment

or prevention of disease or substances intended to affect the structure or any function of the

body; according to Title 11’s definition, an individual is proscribed from driving while impaired

by a substance capable of producing any alteration of the physical, mental or emotional condition

of a person. These definitions are exceptionally broad, and likely so, to account for the myriad

substances regularly developed, distributed, and consumed which affect the human body. Since

it is not illegal to drive under the influence of only a substance classified as “controlled,”

Leone’s argument is meritless.

      That Seitz did not know the identity of the drug or drugs impairing Leone is of no moment,

because Section 4177 does not limit its proscription to controlled substances. Seitz could readily

observe behavior and facts indicative of impairment without researching the identity of the

impairment-causing substance. To conclude that before arrest, discovery, and even trial, a police

officer must precisely identify each substance impairing a defendant suspected of DUI, so as to
18
     21 Del. C. § 4177(c)(11).
                                                 5
ensure the substance is statutorily defined as a “drug,” is effectively putting the cart before the

horse. Probable cause is an evidentiary baseline, built upon a police officer’s observations

within a totality of the circumstances framework; this standard is satisfied well before evidence

accumulates which would sustain guilt beyond a reasonable doubt. Leone has failed to present,

and indeed this Court has failed to discover, any binding case law supporting Leone’s position.

   B. Probable Cause

       Seitz had probable cause to believe Leone committed a DUI offense. In considering the

totality of the circumstances, as observed by Seitz, Leone appeared less able than a person would

ordinarily have been to exercise clear judgment or sufficient physical control and due care while

driving her vehicle. Leone, during daylight hours and while controlling her vehicle, collided

with a stationary vehicle at a toll booth on a busy interstate highway. Leone told Seitz that at the

time of the collision she was having problems with her eyes. Seitz observed Leone’s eyes to be

watery and with constricted pupils. Shortly after the collision, Seitz found Leone in possession

of numerous prescription pills in orange pill bottles; some of these bottles with warnings that the

drugs “may cause dizziness” and should be used for sleep. Furthermore, Seitz observed Leone to

have substantial trouble maintaining her balance, so much so that Seitz had to catch Leone to

prevent her from falling. Whether seated or standing, Leone used her vehicle’s door for balance.

Additionally, Leone could not follow Seitz’ basic instruction to stand up straight. Considering

Leone’s abnormal behavior, instability, and inability to follow rudimentary instructions, coupled

with Seitz’ observing Leone’s possession of numerous unidentified substances, the Court finds

there was a fair probability that Leone was driving while impaired by a drug or drugs.

       The facts above, considered in the totality of the circumstances extant, prior to, and at the

time of arrest, are sufficient for a finding of probable cause.



                                                  6
                                         CONCLUSION

       For the foregoing reasons, the Defendant’s Motion to Suppress is DENIED with

prejudice. The matter will be scheduled for trial. This Judicial Officer retains jurisdiction.

IT IS SO ORDERED.




                                                              The Honorable Carl C. Danberg,
                                                                          Judge




cc:    Evette Mosley, Judicial Case Manager




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