    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE              )
                               )
                               )
          v.                   )     ID No. 1307019559
                               )
ANTHONY CICIONE, JR.,          )
                               )
          Defendant.           )


                     MEMORANDUM OPINION


     On April 20, 2013, Defendant drove through a stop sign and

struck a vehicle in which Anthony McGuire was a passenger. Mr.

McGuire was pronounced dead at the scene.          According to the

State, analysis of blood drawn from Mr. Cicione shortly after the

accident revealed the presence of alcohol and traces of marijuana or

its active ingredient, THC.    It is the presence of the traces of

marijuana which give rise to the instant motion. A provision of the

Delaware Code makes it unlawful to operate a motor vehicle while

any amount, no matter how small, of a recreational or illicit drug is

in the driver’s bloodstream.   On the literal eve of trial Defendant

filed a motion seeking to have this court declare that statutory
provision unconstitutional because it ostensibly deprives him of

substantive due process.           He filed a second motion asking this

court to conduct an evidentiary hearing so that Defendant could

introduce scientific evidence that trace amounts of marijuana or its

metabolite in the bloodstream do not adversely affect an individual’s

ability to drive

     This    aged       case,   which   has    had   a   history   of   several

continuances (the defendant is free on bail), was recently specially

assigned to this judge. Defendant filed these motions the afternoon

before jury selection was scheduled to begin.             Defense counsel’s

explanation for the delay was that, although he had previously

contemplated        a    motion      seeking   to    declare    the     statute

unconstitutional, he had just “stumbled” across some information

about the affects of trace amounts of marijuana.               Defendant told

the court he did not expect the court to decide the issue until after

trial. The court concluded it would be unfair to wait because the

recreational-or-illicit-drug theory was only one of four theories the

State was advancing.            The court believes the State’s (if not the

defendant’s) trial strategy might depend in part on whether the

statute is constitutional. The court researched the issue after the

                                        2
conclusion of the first day of a two-day jury selection and concluded

that Defendant’s motion was meritless. Rather than delay matters

and thereby prolong any uncertainty, the court decided it need not

await reply from the State which likely would mirror what the

court’s own research had revealed.           Consequently the court

announced in open court that Defendant’s motions were denied and

that an explanation for that decision would follow.       This is that

explanation.

     Section 4177 (a)(6) of title 21 makes it unlawful to drive a

vehicle “[w]hen the person’s blood contains . . . any amount of an

illicit or recreational drug. . . or any amount of a substance or

compound that is the result of the unlawful use or consumption of

an illicit or recreational drug.” Defendant argues that there is no

scientific evidence that trace amounts of an illicit or recreation drug

(or metabolites thereof) in someone’s blood impairs someone’s

ability to drive safely. In other words, according to Defendant, there

is some minimal or threshold level below which it is safe to drive.

Defendant contends that because the statute makes it unlawful to

drive below that supposed threshold level (whatever that level might

be) it is an invalid exercise of the police power and therefore violates

                                   3
his right to substantive due process as set out in the United States

Constitution.

        Defendant offers little, if anything in the way of meaningful

analysis.       Citing only two older Maryland cases, a single federal

appellate opinion and a treatise – none of which are on point -- he

sweeps to the conclusion “the general constitutional requirement

[is] thus established . . .” But Defendant’s federal police powers

argument fails from the start because, as Defendant fails to note,

the police power limitation in the Federal Constitution (the

enumerated powers in Article I, section 8) applies only to Congress.

All remaining powers, according to the Constitution, are reserved to

the States.1             National Federation of Independent Business v.

Sebelius 2 has this to say about the relationship between the

enumerated powers of Congress and the states:

                The Federal Government has expanded
                dramatically over the past two centuries, but it
                still must show that a constitutional grant of
                power authorizes each of its actions.

                     The same does not apply to the States,
                because the Constitution is not the source of
                their power. The Constitution may restrict
                state governments—as it does, for example, by
1   U.S. Const., amend X.
2   ___ U.S. ___, 132 S.Ct. 2566 (2012).

                                           4
                   forbidding them to deny any person the equal
                   protection of the laws. But where such
                   prohibitions do not apply, state governments
                   do not need constitutional authorization to
                   act. 3


While many federal constitutional provisions limit the power of the

Delaware General Assembly, the First Amendment for example, the

enumerated powers section of the federal constitution is not one of

them.

         Defendant’s argument could be laid to rest here, but because

Defendant incants the phrase “due process,” the court will consider

the Due Process clause of the Fourteenth Amendment as well.

Once again Defendant offers no real analysis.          He does not even

address, much less satisfy, the threshold question inherent in any

due process analysis: whether he has been deprived of “life, liberty

or property.”

         Section 1 of the Fourteenth Amendment is familiar—it

provides in part that “nor shall any State deprive any person of life,

liberty or property, without due process of law.” In order to invoke

the Due Process clause, therefore, Defendant must first make the


3   Id. at 2578.

                                        5
initial showing that he has been deprived of “life, liberty, or

property.”        Not only that, he must also show that any liberty

interest involved here is “deeply rooted in this nation's history and

tradition . . . and implicit in the concept of ordered liberty.” 4 The

“absence of any claim by the plaintiff that an interest in liberty or

property has been impaired is a fatal defect in her substantive due

process       argument.” 5        The      Eighth       Circuit      Court       of   Appeals

summarized the law this way:

                  The Due Process Clause of the Fourteenth
               Amendment prohibits state governments from
               depriving “any person of life, liberty, or
               property, without due process of law....” This
               clause has two components: the procedural
               due process and the substantive due process
               components. Analysis of either a procedural or
               substantive due process claim must begin with
               an examination of the interest allegedly
               violated and the possession of a protected life,
               liberty, or property interest is a condition
               precedent to any due process claim. Where no
               such interest exists, there can be no due
               process violation.       Merely labeling a
               governmental     action   as    arbitrary   and
               capricious, in the absence of the deprivation of
               life, liberty or property will not support a
               substantive due process claim.6


4  Chavez v. Martinez, 538 U.S. 760, 774 (2003)(internal quotation marks omitted).
5 Jeffries v. Turkey Run Consol. Sch. Dist., 492 F.2d 1, 4 (7th Cir.1974) (opinion by Stevens, J.)
6
  Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999)(internal quotation marks and editing
omitted).

                                                6
         The Supreme Court requires the analysis here to begin with a

“careful description of the asserted fundamental liberty interest for

the purposes of substantive due process analysis; vague generalities

. . .     will not suffice.” 7 Because Defendant did not consider the

issue, the court can only surmise what sort of interest he claims

has been taken from him by the statute. Clearly Defendant’s life

has not been taken from him nor does has he mentioned the loss of

any “property” as envisioned by the Fourteenth Amendment. By

process of elimination the court is led to conclude Defendant

contends the statute has deprived him of a liberty interest.

         This is not the sort of case which involves a liberty interest

protected by the substantive due process clause. As the Supreme

Court has noted, “[t]he protections of substantive due process have

for the most part been accorded to matters relating to marriage,

family, procreation, and the right to bodily integrity.” 8 The Court

has expressed reluctance to expand the scope of substantive due

process beyond these “because guideposts for responsible decision

making in this unchartered area are scarce and open-ended.”9        In

7
    Chavez, 538 U.S. at 775-76.
8
    Albright v. Oliver, 510 U.S. 266, 272 (1994).
9
    Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

                                              7
the absence of an express assertion from Defendant logic dictates

there are only two possible candidates: (1) a right to drive a motor

vehicle, and/or (2) a right to consume illicit or recreational drugs.

Only the first warrants any discussion, and this need only be brief.

         There is little doubt there is a fundamental right in interstate

travel,10 but this does not extend to the right to drive. In Miller v.

Reed 11 the Ninth Circuit Court of Appeals rejected the notion that

the right to travel included the right to drive. 12 The state in that

case refused to renew the plaintiff’s driver’s license, and plaintiff

sued claiming that this deprived him of a fundamental right. 13 The

Ninth Circuit disagreed, pointing out that “burdens on a single

mode of transportation do not implicate the right to interstate

travel.”14 Even if one were to assume there is some sort of liberty

interest in driving, that interest would be far distant from the sort of

“deeply rooted in this nation's history and tradition . . . and implicit

in the concept of ordered liberty” protected by substantive due

process.



10    Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986).
11   Miller v. Reed, 176 F.3d 1202, 1206 (9th Cir. 1999).
12   Id.
13   Id.
14   Id.

                                                 8
         It bears mention that it is the specific interest taken by a

statute—not the penalty affixed for violation of the statute—which

must give rise to a protected liberty interest. The issue before the

United States Supreme Court in Lawrence v. Texas 15 was whether a

Texas statute making it a crime for two persons of the same sex to

engage in certain intimate sexual conduct deprived petitioner of a

liberty right and, therefore, his right to substantive due process. In

searching for a protected liberty interest, the Supreme Court did not

rely upon the penalty or stigma attached to a conviction. Rather

the Court looked to the underlying interest being taken by the

statute—in that case the right to privacy. If indeed the fact that Mr.

Cicione is subject to criminal penalties confers upon him a

protected liberty interest for purposes of substantive due process,

then virtually any substantive criminal statute would be subject to

substantive due process review. But as noted previously, the

Supreme Court has expressly stated that it is reluctant to find

liberty interests except in “matters relating to marriage, family,

procreation, and the right to bodily integrity.” 16



15
     539 U.S. 558 (2003).
16   Glucksberg, 521 U.S. at 720.

                                    9
       Defendant is asking the court to pass judgment on the wisdom

of the General Assembly’s decision to make it unlawful to drive for

persons with a trace amount of illicit or recreation drugs in their

system.        He goes so far as to ask the court to conduct an

evidentiary hearing to determine what effect, if any, a trace amount

of marijuana or its metabolite has on the ability to drive. It is not

up to the courts of this state to pass judgment on the wisdom of

enactments of the General Assembly. 17                      If legislation exceeds the

constitutional bounds on legislative enactments, the courts are

obligated to say so. But a court is not permitted, under the guise of

substantive due process, to review legislation to see if it has a better

idea.18 In Washington v. Glucksburg the Supreme Court wrote:

              By extending constitutional protection to an
              asserted right or liberty interest, we, to a great
              extent, place the matter outside the arena of
              public debate and legislative action. We must
              therefore exercise the utmost care whenever
              we are asked to break new ground in this field
              lest the liberty protected by the Due Process
              Clause be subtly transformed into the policy
              preferences of the Members of this Court. 19


17 Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1259 (De. 2011).
18 Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985) (“[T]he Court has no license to
invalidate legislation which it thinks merely arbitrary or unreasonable.”).
19
   Washington v. Glucksberg 521 U.S. 702, 720 (1997)(internal quotation marks omitted).



                                               10
The same holds true here.


      For the foregoing reasons, Defendant’s motion to declare

section 4177 unconstitutional is DENIED and Defendant’s motion

for a hearing is DENIED.



                                     ____________________________
Date: September 16, 2014                  John A. Parkins, Jr.
                                         Superior Court Judge



oc:   Prothonotary

cc:   Barzilai K. Axelrod, Esquire, Wilmington, Delaware - Attorney
      for the State
      Joseph A. Hurley, Esquire, Wilmington, Delaware – Attorney
      for the Defendant




                                11
