     IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE


CRISTIAN MENDEZ-GARCIA,                  )
                                         )
            Appellant,                   )
                                         )
            v.                           )       ID. No. 1903019680
                                         )
STATE OF DELAWARE,                       )
                                         )
            Appellee.
                                         )


                            Submitted: May 8, 2020
                            Decided: July 24, 2020


                 Upon Appeal from the Court of Common Pleas–
                                AFFIRMED.



                                  OPINION




Thomas A. Foley, Esquire, Attorney for Appellant.
Isaac A. Rank, Deputy Attorney General, Attorney for Appellee.

STREETT, J.
                                        Introduction

         Cristian Mendez-Garcia (the “Appellant”) was arrested for driving under the

influence (“DUI”) by Corporal Maura Schultz (“Corporal Schultz”) of the New

Castle County Police Department. Before his trial in the Court of Common Pleas

(the “Trial Court”), Appellant moved to suppress evidence, including his Intoxilyzer

test results, obtained by the police. Appellant argued that there was insufficient

probable cause to require him to submit to the Intoxilyzer test. The Trial Court

denied Appellant’s Motion to Suppress. At trial, the Trial Court found Appellant

guilty of DUI. Appellant now appeals the Trial Court’s decision to deny his Motion

to Suppress, contending that the Trial Court erred in ruling that the State established

probable cause. The State contends that the Trial Court did not err.

                                     Statement of Facts

         On March 30, 2019, Corporal Schultz was dispatched to the scene of a

vehicular accident in a residential area.1 Appellant was present upon arrival. The

officer’s body camera was turned on and recorded her interactions with Appellant.

         Appellant informed Corporal Schultz that his vehicle had struck the rear

bumper of an unoccupied vehicle (which was parked on the other side of the street)

as he backed out of a parking space.




1
    The accident occurred on Danbury Drive in the Wellington Woods development.
                                               1
         As to driving and vehicle documentation, Appellant’s driver’s license was

suspended for a prior DUI and he was unable to produce a valid driver’s license. He

provided a Delaware State ID card, a valid insurance card, car registration, and

paperwork from his prior DUI arrest.

         Corporal Schultz detected an odor of alcohol emanating from Appellant and

observed that Appellant’s eyes were bloodshot. Appellant admitted that he had been

drinking alcohol prior to the accident. Corporal Schultz noted that Appellant was

cooperative and pleasant, his balance and demeanor appeared to be normal, and his

clothing was orderly.

         Corporal Schultz then conducted field tests on Appellant and noted six clues

during the horizontal gaze nystagmus test (“HGN”) and two clues during the walk-

and-turn test. Corporal Schultz did not note any clues during Appellant’s one-leg-

stand test. Corporal Schultz also performed a PBT on Appellant.

         Corporal Schultz then arrested Appellant and transported him to the New

Castle County Police Headquarters to conduct an Intoxilyzer test. Before conducting

the test, Corporal Schultz waited 25 minutes, she continuously observed Appellant

during the period, she read Appellant his Miranda rights2, Appellant waived those

rights, and Corporal Schultz questioned Appellant about his whereabouts prior to the

accident. Appellant then blew into the Intoxilyzer machine and the Intoxilyzer


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                               2
results registered a .157 Blood Alcohol Count (“BAC”), which was higher than the

maximum allowable BAC for operating a motor vehicle in Delaware (.08 BAC).3

Corporal Schultz then cited Appellant for driving while under the influence of

alcohol.

                                    Procedural History

          On September 11, 2019, Appellant filed a Motion to Suppress all evidence,

including the results of the Intoxilyzer test. Appellant contended that probable cause

did not exist to take him into custody and that the field tests were unreliable and

inadmissible.

          On October 8, 2019, the Trial Court held a Suppression Hearing. Corporal

Schultz testified for the State and the body camera video was admitted, without

objection, into evidence.4 Appellant did not testify, call any witnesses, or present

any evidence.

          Corporal Schultz testified that she has worked for the New Castle County

Police Department for twelve years and that she currently works on patrol. 5 She

stated that she completed forty hours of DUI detection training at the New Castle


3
 Appellant stipulated that Corporal Schultz had training and experience operating the Intoxilyzer
machine and that the machine was properly calibrated. See Trial Transcript, at 7.
4
  Appellant’s counsel stated that the body camera video was the “best evidence” and did not object
to it being admitted and played during the hearing. Suppression Hearing Transcript, at 11.
5
    Id. at 7.


                                                3
County Police Academy.6 She also stated that she is ARIDE certified7 and is a DUI

instructor,8 and had made approximately fifteen prior DUI-related arrests.9

           Corporal Schultz testified that, on March 30, 2019, she began work at

approximately 5:30 a.m.10           She was called to the area of Danbury Drive in

Wellington Woods for a vehicle collision investigation at approximately 6:30 a.m.11

Upon arrival, she saw Appellant standing outside of his vehicle.12 The officer

observed damage to the rear bumper of Appellant’s vehicle, damage to the passenger

side of the other vehicle,13 and pieces of Appellant’s vehicle’s light on the ground




6
  Corporal Schultz explained that her DUI training consisted of classroom training (watching
videos and reviewing the standardized field sobriety tests), a wet lab (observing individuals who
are on different levels of intoxication), completing the field sobriety tests with test subjects, and
Intoxilyzer training. Id. 8-9.
7
  Although not elaborated upon by Corporal Schultz, Advanced Roadside Impaired Driving
Enforcement (ARIDE) is a certificate program administered by the National Highway Traffic
Safety Administration.
8
    Id. at 8.
9
    Id. at 14.
10
     Id. at 9.
11
     Id. at 32.
12
     Id. at 10.
13
     Id.


                                                 4
next to the other vehicle.14 Corporal Schultz also spoke to a witness who said that

she heard the collision and then watched Appellant get out of his car.15

           Corporal Schultz suspected that Appellant was under the influence because

she detected an odor of alcohol “emanating from his person.”16 She noticed that

Appellant’s “eyes were bloodshot”17 and he was “very emotional [and] he seemed

very upset.”18 His clothes, however, were “very orderly”.19

           Corporal Schultz testified that she administered the HGN test on Appellant.

Corporal Schultz explained the procedure for administering the HGN test. She said

that there are six clues for determining impairment, and that the presence of two

clues indicates impairment.20 She testified that when she checked Appellant’s eyes




14
     Id.
15
     Id. at 16.
16
     Id. at 14.
17
     Id.
18
     Id. at 15.
19
     Id.
20
   Corporal Schultz stated that, prior to conducting a HGN test, the officer looks at the subject’s
eyes and verifies that the pupils are of equal size and that there is no resting nystagmus. The officer
then twice checks whether the subject’s pupils are tracking equally when going side to side starting
with the left side. She also testified that the officer then conducts the HGN test and checks for six
validated clues. She stated that the clues are equal tracking for each eye, distinct and sustained
nystagmus at maximum for each eye, and onset of nystagmus prior to 45 degrees for each eye. Id
at 18, 35-36.


                                                  5
for smooth pursuit, there was a clue in each eye.21 She observed nystagmus onset

before 45 degrees and vertical nystagmus in each of Appellant’s eyes.22 In total, she

noted six clues.23 Corporal Schultz testified that such a result on the HGN test

indicates an intoxication level higher than the legal limit of .08 BAC.24

           Corporal Schultz then testified that she administered the walk-and-turn test on

Appellant. She stated that there are eight clues to look for during the walk-and-turn

test.25 She noted that Appellant displayed two clues during the walk-and-turn test –

he started too soon and he missed a heel-to-toe.26 Corporal Schultz testified that a

finding of two clues on the walk-and-turn test indicates an intoxication level higher

than the legal limit of .08 BAC.27


21
  Id. at 19-20. Corporal Schultz testified that each of Appellant’s eyes displayed a stutter step
when performing the smooth pursuit portion of the test.
22
     Id. at 20-21.
23
     Id.
24
   Id. at 22. Although the HGN test does not determine BAC level, the State asked Corporal
Schultz “Did the results of the [HGN] test indicate to you that the defendant was above or below
a .08 BAC?” Corporal Schultz responded, “Yes… [t]hat he was above a .08 BAC.”
25
   Id. at 23-24. Corporal Schultz explained that the walk-and-turn test consists of an instruction
stage and then a walking stage. During the instruction stage, she looks for whether the subject
starts too soon or is unable to maintain his or her balance. The walking stage consists of heel-to-
toe stepping, stepping off the line, use of arms for balance, too many steps, wrong turns, or stops
while walking.
26
     Id. at 25.
27
  Id. at 26. Although the walk-and-turn test does not determine BAC level, the State asked
Corporal Schulz, “What do two clues indicate to you regarding an individual’s level of intoxication
on the walk-and-turn test?” She responded, “That the defendant would be… intoxicated.” The
                                                6
           Corporal Schultz testified that she then administered the one-legged test on

Appellant.28 She stated that there are four clues to look for in the one-legged test.

She observed zero clues during this test.29

           Corporal Schultz also said that she administered the portable breathalyzer test

(“PBT”) on Appellant.30 She testified that the standard for administering this test is

to wait at least fifteen minutes after initial contact with the subject before

administering the test and that she waited the required fifteen minutes.31

           Corporal Schultz testified that, after she completed her investigation at the

scene of the accident, she arrested Appellant, transported him to the New Castle

County Police Headquarters, and administered an Intoxilyzer test on him.32

           The State played Corporal Schultz’s body camera video of her investigation

and interactions with Appellant.33 Corporal Schultz testified that she wore the body

camera during her investigation, it recorded what she saw and heard, she reviewed


State followed up, “And what does that tell you regarding their BAC level?” Corporal Schultz
answered, “That it’s above a .08.”
28
     Id. at 27.
29
     Id.
30
     Id.
31
     Id. at 28. Corporal Schultz did not testify as to the results of the PBT.
32
     Id. at 30.
33
     Id. at 12.


                                                    7
the video, and the video accurately reflected her recollection of the investigation and

arrest.34

         The Trial Court then watched the video.35 It showed Corporal Schultz asking

Appellant for his driver’s license36 and Appellant responding that he has a DUI

pending and that his license was suspended.37                Corporal Schultz then asked

Appellant, “Have you been drinking this morning?”38 Appellant responded, “Uh

yes… it’s my birthday tonight.”39 Appellant also explained that he hit the other

vehicle as he was backing up40 because he “accidently pulled out way too hard.”41




34
     Id. at 11.
35
   In its Opinion, the Trial Court stated that “[t]hrough this video and audio footage, the Court
observed the accident scene and Defendant’s conduct.” Trial Court’s October 16, 2019 Opinion,
at 3.
36
     State’s Exhibit #1, at 1:22.
37
     Id. at 1:36-38.
38
     Id. at 1:40.
39
     Id. at 1:42.
40
     Id. at 4:32.
41
     Id. at 4:50.


                                               8
          The video then showed Corporal Schultz administering the field sobriety tests

on Appellant.42 While administering the HGN test, Corporal Schultz instructed

Appellant not to move his head.43 She had to repeat that instruction several times.44

          The video also showed Appellant performing the heel-to-toe test, the walk-

and turn test, the one-legged test, and undergoing the PBT.45 While waiting for the

administration of the PBT test, Appellant informed Corporal Schultz that his parents

were on vacation in Mexico46 and they then conversed about parents and Mexico.

After performing the PBT, Appellant twice asked the officer, “How bad is it?”47

          The video recorded Corporal Schultz informing Appellant that he was going

to be “coming” with her for “suspicion of DUI.”48 Appellant responded, “there’s no

suspicion, I like, I admitted to --.”49 Corporal Schultz then explained that she was

taking Appellant to police headquarters for him to blow into an Intoxilyzer.50


42
     Id. at 5:28.
43
     Id. at 616.
44
     Id. at 6:21; 6:33-36; 6:50; 7:13; 8:07.
45
     Id. at 10:15-14:12.
46
     Id. at 16:06.
47
     Id. at 20:14; 20:50.
48
     Id. at 21:07.
49
     Id. at 21:10.
50
     Id. at 21:24.
                                               9
           Throughout the duration of the video, Appellant made numerous profanity-

laced comments lamenting that he messed up, he should have stayed home, and he

should have used Uber or Lyft instead of driving.51

           On cross-examination, Corporal Schultz agreed that Appellant’s speech was

“good,” he was “cooperative,” and he “was pleasant to deal with.”52 She also

acknowledged that a lack of sleep, toxins, or cigarette smoke could cause bloodshot

eyes;53 confirmed that the damage caused by the accident was “[f]airly minor;” noted

that the street where the accident occurred was so narrow that two cars could not

pass at the same time;54 and said that Appellant’s “balance was pretty much

excellent.”55


51
     The video recorded Appellant making comments that include:

           “I really just fucked up my whole life, didn’t I?” Id. at 7:05.

           “I really just fucked up my life. I suck as a human. I should have just stayed home. I
           should have just stayed home… No, I fucked up. I know I did. And like my life is fucking
           ruined.” Id. 7:39.

           “I should have just Uber’d here.” Id. at 8:28.

           “I should have fucking just Lyft’d here.” Id. at 17:36.

           “I know I fucked up.” Id. at 18:53.
52
     Suppression Hearing Transcript, at 33.
53
     Id. at 34
54
     Id.
55
     Id. at 35.


                                                     10
           Corporal Schultz conceded that the body camera video did not capture

Appellant’s eyes during the HGN test56 and that Appellant “was good” on the first

nine steps of the heel-to-toe test57 (however, she noted that Appellant failed to touch

heel-to-toe on step 7/8 during the second nine steps).58 Corporal Schultz also stated

that Appellant started the heel-to-toe test too soon after she had instructed him not

to move.59 She confirmed that she observed no clues during the one-legged stand

test.60      In addition, she testified that, although she waited fifteen minutes to

administer the PBT, she left Appellant and went back to her patrol car at some point

while another officer observed Appellant.61

           After Corporal Schultz’s testimony, the Trial Court noted that there had been

no testimony or records submitted that the PBT was calibrated and working properly

as required by Delaware law.62               The State conceded that it had not met this




56
  Corporal Schultz explained that she is short in stature and that, as a result, her body camera is
not always positioned high enough to capture a person’s eyes. Id. at 43.
57
     Id. at 38.
58
     Id.
59
     Id. at 39.
60
     Id.
61
     Id. at 39-40. The record does not reflect the name of the other officer.
62
     Id. at 47-48.


                                                   11
requirement.63 The Trial Court also noted that Corporal Schultz did not testify as to

her training or the NHTSA requirements concerning the walk-and-turn test and the

one-legged stand test.64

           On October 16, 2019, the Trial Court issued a written Opinion wherein it

denied Appellant’s Motion to Suppress.65 In its finding of facts, the Trial Court

found that Appellant was unable to produce his driver’s license, admitted that his

license was suspended due to a prior DUI, smelled of alcohol, had bloodshot eyes,

and admitted to drinking alcohol on the day in question. The Trial Court also found

that Appellant “admitted to backing up too quickly and striking a parked car.”66

Additionally, it found that Appellant “made statements using expletive language

describing how bad he messed up; that he should have taken an Uber or Lyft, and

that he ruined his life.”67 The court also noted that Appellant had difficulty following

instructions during the HGN test.68



63
     Id.
64
     Id. at 51.
65
     Trial Court’s October 16, 2019 Opinion.
66
     Id. at 3.
67
     Id.
68
   In its fact-finding section, the Trial Court noted that during the administration of the HGN test
Appellant continued to speak and repeatedly moved his head after Corporal Schultz repeatedly
told him to remain silent and still. Id. at 3. Although the Trial Court disregarded the results of the
HGN test, it stated that Appellant’s non-cooperative conduct during the administration of the HGN
                                                 12
          The Trial Court, however, excluded the field sobriety tests and the PBT based

on the State’s failure to present evidence that those tests were administered in

compliance with the NHTSA standards69 and failure to lay the proper foundation to

establish that the PBT machine was calibrated and that Corporal Schultz was

properly trained on its operation.70

           Nevertheless, the Trial Court found probable cause because it “need not rely

on the validity of the field sobriety tests in making its determination regarding the

existence of probable cause.”71 The Trial Court held that probable cause existed

based on Corporal Schultz’s observations that:

           (1) Defendant was driving a motor vehicle under a suspended license
           and while doing so struck a parked car; (2) Defendant was unable to
           provide a valid driver’s license to Corporal Shultz [sic]; (3) Defendant
           admitted to Corporal Schultz he was drinking alcohol; (4) Corporal
           Shultz [sic] observed that Defendant smelled of alcohol; (5) Corporal
           Shultz [sic] observed Defendant’s eyes were bloodshot. In addition,
           Defendant’s inability to cooperate with Corporal Shultz’s [sic]
           administration of the HGN test, Defendant’s nervous chatter and
           numerous quasi-admissions weigh against Defendant in determining
           probable cause under the totality of the circumstances. Here, there was
           substantial basis for Corporal Shultz [sic] to conclude that probable
           cause existed to effectuate an arrest.72

test weighed against Appellant in a determination of probable cause under the totality of the
circumstances. Id. at 10.
69
     Id. at 7-9.
70
     Id. at 8-9.
71
     Id. at 9.
72
     Id. at 10, citing Bease v. State, 884 A.2d 495, 500 (Del. Sept. 29, 2005).
                                                   13
          On January 27, 2020, a trial was held and the Trial Court convicted Appellant.

Corporal Schultz again testified for the State. Appellant did not testify or call any

witnesses.

          At trial, Appellant did not contest that he operated a motor vehicle at .157

BAC.73 Also, Appellant stipulated, and Corporal Schultz testified, as to Corporal

Schultz’s training and experience on the Intoxilyzer machine, the Intoxilyzer’s

calibration records, the administration of the Intoxilyzer test, the results of the test,

and Appellant’s .157 BAC.74

          The Trial Court noted that Corporal Schultz was the only fact witness and that

there were “no credibility issues with Corporal Schultz, and in fact, her testimony

was largely confirmed by her body-worn camera.”75

          On January 30, 2020, a few days later, Appellant filed his Notice of Appeal

with this Court.

          On March 25, 2020, Appellant filed his Opening Brief.

          On April 23, 2020, the State filed its Answering Brief.

          On May 7, 2020, Appellant filed his Reply Brief.




73
     Trial Transcript, at 3-4.
74
     Id. at 7-8.
75
     Id. at 19.


                                            14
                                   The Parties’ Contentions

           Appellant asserts that the Trial Court’s determination of probable cause was

“unsupported by the totality of the circumstances.”76 Appellant contends that he was

in command of his actions, his quasi-admissions were ambiguous, and he was

cooperative.

           Appellant asserts that the totality of the circumstance reflect that he “had no

difficulty in presenting his documents to Corporal Schultz when she first approached

him;” “he was not confused as to what documents he provided;” “he did [not] fumble

or show a lack of dexterity;” and he “volunteered that he had a prior DUI and was

still suspended.”77 In addition, Appellant states that he “further volunteered that he

had a State I.D. card which he provided to Corporal Schultz, along with his valid

insurance card and car registration plus the paperwork from his prior DUI arrest.”78

           Moreover, Appellant argues, although Corporal Schultz’s body camera

recorded Appellant’s admission that he had been drinking, there was “no testimony

that [Appellant] admitted drinking alcohol”79 and that although the officer “testified

that she observed an odor of alcohol emanating from [Appellant’s] person, she did


76
     Appellant’s Opening Brief, at 7.
77
     Id. at 7-8.
78
     Id. at 8.
79
     Id.


                                              15
not testify that the odor was from his breath.”80 Appellant further contends that there

was no allegation that his eyes were glassy, watery, or dazed, his bloodshot eyes do

not appear to be extreme on the body camera footage, and the incident occurred in

the early morning.

          Additionally, Appellant disputes the conclusion that he was unable to

cooperate with Corporal Schultz’s administration of the HGN test because the

finding was based merely on Corporal Schultz’s “gently instructing [Appellant] to

keep his head still while he tracked her pen with his eyes [and that] [h]is head barely

moved on those occasions.”81 Furthermore, Appellant states that his “nervous

chatter and numerous quasi-admissions” are no more indicative of an impairment

than “any driver’s proclamation that he/she is perfectly fine to drive despite

overwhelming objective evidence to the contrary.”82 Appellant writes that his ability

to engage in a “very normal conversation" with Corporal Schultz (about his parents

and Mexico) means that Appellant was not impaired.83

          Appellant then cites a series of cases to support his claim that there was

insufficient probable cause under the totality of the circumstances (State v. Dale,


80
     Id. (internal quotation marks removed).
81
     Id. at 8.
82
     Id. at 8-9.
83
     Id. at 9.


                                               16
State v. Sexton, and State v. Beheler).84 Appellant writes that, in State v. Dale,85 the

Delaware Superior Court found insufficient probable cause where the defendant was

stopped for speeding, had a moderate odor of alcohol, bloodshot eyes at 5:30 a.m.,

flunked the alphabet test, and was wearing his sweatshirt inside-out, was not

engaging in erratic driving or fumbling, and was cooperative while exhibiting fair

speech and normal face color.

         Appellant also writes that in State v. Sexton,86 the Delaware Court of Common

Pleas “found insufficient probable cause in a two vehicle accident of undetermined

cause, odor of alcohol, glassy eyes, and admission to drinking at an unspecified time,

juxtaposed with the absence of any egregious driving, stumbling or trouble

balancing, behavioral abnormalities, disheveled appearance, slurred speech or

flushed face.”87

         Lastly, Appellant states that the Court of Common Pleas in State v. Beheler88

declined to find probable cause based on the facts that the defendant “took a wide

turn and drove on the wrong side of [the] road for 2/10 of a mile, exhibited a


84
     Citations are provided as discussed.
85
     State v. Dale, 2016 WL 691445 (Del. Super. Feb. 11, 2016).
86
     State v. Sexton, 2020 WL 755172 (Del. Com. Pl. Feb. 14, 2020).
87
     Appellant’s Opening Brief, at 10.
88
     State v. Beheler, 2010 WL 2195978 (Del. Com. Pl. Apr. 22, 2010).


                                                17
moderate odor of alcohol and watery eyes, slightly lost balance while exiting [the]

car on a dark night and slanted road, [and] passed the alphabet, finger dexterity and

counting backwards tests…”89

           Appellant additionally argues that the totality of the circumstances does not

constitute probable cause. He contends that the body camera video “dispels any

notion” that he was “an impaired driver, notwithstanding that he bumped a parked

car while backing out on [a] narrow residential street at dawn.”90 He contends that

there was “no indication that his consumption of alcohol the night prior was a

factor.”91 He also asserts that he exhibited “normal coherent speech; his eyes were

barely bloodshot; he was in full command of his faculties; his clothing was orderly;

his balance and coordination were normal; and he was pleasant and cooperative.”92

Appellant also notes that the Trial Court, after viewing the body camera video at the

Suppression Hearing, commented that Appellant held his arms at his sides without

swaying.

           The State argues that the Trial Court did not err in denying Appellant’s Motion

to Suppress. The State asserts that past decisions of Delaware Courts have found


89
     Appellant’s Opening Brief, at 10-11.
90
     Id. at 11.
91
     Id.
92
     Id.


                                              18
that a defendant’s involvement in a vehicular accident, a traffic violation, bloodshot

eyes, odor of alcohol, admission to drinking, nervous behavior, failure to comply

with instructions, and quasi-admissions were factors supportive of probable cause

for a DUI arrest.93 The State submits that these factors are present in the instant case

and the Trial Court properly relied on these factors in its determination of probable

cause.

         In addition, the State argues that the Trial Court’s finding was supported by

sufficient evidence. The State explains that Appellant admitted that he was at fault

in the accident, he admitted that he was driving while his license was suspended,

Corporal Schultz testified that she detected the odor of alcohol emanating from

Appellant, Appellant admitted that he had been drinking, he exhibited nervous

chatter, he repeatedly made profanity-laced statements, he was unable to keep his

head still, and he made quasi-admissions. The State contends that “there is no

authority to support Appellant’s claim that his balance and coordination observed on

the video during the tests should negate a finding of probable cause.”94

         In his reply, Appellant argues that the factors cited by the State are “either not

supported by the record or are de minimis, when juxtaposed against the totality of


93
  Citing Rybicki v. State, 119 A.3d 663, 669 (Del. July 20, 2015); Lefebvre v. State, A.3d 287, 293
(Del. Apr. 26, 2011); Jenkins v. State, 970 A.2d 154, 158-59 (Del. Apr. 6, 2009); State v. Cohan,
2013 WL 5494718, at *4 (Del. Com. Pl. Oct. 1, 2013).
94
     The State’s Answer, at 17.


                                                19
the circumstance that do not reflect impairment.”95 Appellant contends that the

accident was minor and occurred on a narrow residential street; there is no evidence

that Appellant’s decision to drive on a suspended license was linked to impaired

poor decision-making; Appellant was transparent to Corporal Schultz that he had a

prior DUI and that his license was suspended; Appellant provided his State I.D. card,

insurance card, car registration, and prior DUI paperwork; Appellant’s bloodshot

eyes were “negligible”96 and it was dawn; and Corporal Schultz acknowledged that

bloodshot eyes can be caused by reasons other than alcohol.

          Moreover, Appellant maintains that Corporal Schultz did not specify that she

detected alcohol odor from Appellant’s breath (just from his person) and, because

Appellant admitted to drinking “at some point prior to the accident, it would make

sense that his person and clothing would emit an odor of alcohol.”97 Appellant

further states that “an odor of alcohol, by itself, is insufficient, particularly when the

extent of consumption is unknown.”98 He also argues that the record is unclear




95
     Appellant’s Reply at 2.
96
     Id. at 3.
97
     Id. at 3.
98
  Id. Citing Esham v. Voshell, 1987 WL 8277 (Del. Super. Mar. 12, 1987); Lefebvre v. State, 19
A.3d 287, 293 (Del. 2011).


                                             20
whether Appellant’s admission to drinking meant that it occurred shortly before the

accident or hours earlier.

            Concerning his nervous behavior, Appellant argues that it was minimal and

pleasant in tone. He states that he was not fidgety, rambling, and was never off-

topic.        He says that he was “aware that he was detained, and aware of the

neighborhood residents milling about and watching the police administer field

tests.”99 Appellant asserts that the Court has held that it is not unusual for motorists

to exhibit nervousness when confronted by a police officer.100 Appellant also

contends that the body camera video is not supportive of the Trial Court’s finding

that Appellant was unable to comply with Corporal Schultz’s instructions and that

the State has not identified which instruction Appellant failed to follow.

            Lastly, Appellant states that his “quasi-admissions of poor judgment” are not

relevant because those remarks were not supported by objective evidence, such as

other indicators of impairment.101 Appellant states that he “may have been unfairly

harder on himself than necessary in an effort to curry favor with [Corporal]

Schultz.”102


99
     Id. at 4-5.
100
      Id. Citing State v. Chandler, 132 A.3d 133, 144-45 (Del. Super. 2015).
101
      Appellant’s Reply Brief, at 6.
102
      Id.


                                                 21
                                       Standard of Review

          Under 11 Del. C. § 5301(c) a defendant may appeal a Court of Common Pleas

decision to this Court.103 The role of this Court is to correct errors of law and to

review the factual findings of the Trial Court to determine “if they are sufficiently

supported by the record and are the product of an orderly and logical deductive

process.”104 Errors of law will be reviewed de novo; findings of fact are given

deference and reviewed for clear error.105 “If substantial evidence exists for a finding

of fact, this Court must accept that ruling, as it must not make its own factual

conclusions, weigh evidence, or make credibility determinations.”106

          When reviewing a determination of probable cause, “the trial court’s findings

of historical fact [concerning the events leading up to the arrest] are reviewed under

the deferential clearly erroneous standard, but its conclusion as to probable cause, or




103
      11 Del. C. § 5301(c) states:

          From any order, rule, decision, judgment or sentence of the Court in a criminal
          action, the accused shall have the right of appeal to the Superior Court in and for
          the county wherein the information was filed as provided in § 28, article IV of the
          Constitution of the State. Such appeal to the Superior Court shall be reviewed on
          the record and shall not be tried de novo.
104
      Burris v. Beneficial Delaware, INC., 2011 WL 2420423, at *1 (Del. Super. June 9, 2011).
105
      Auwerda v. State, 2017 WL 2729561, at *6 (Del. Super. June 19, 2017).
106
   Klinedinst v. CACH, LLC, 2015 WL 3429941, at 3 (Del. Super. May 22, 2015), citing Fiori v.
State, 2004 WL 1284205, at *1 (Del. Super. May 26, 2004).

                                                  22
more specifically its application of the law of search and seizure to those historical

facts, is considered de novo.”107

                                            Discussion

            “Probable cause is determined by the totality of the circumstances and requires

a showing of a probability that criminal activity is occurring or has occurred.”108 The

Delaware Supreme Court has held:

            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.109

            Furthermore, the State bears the burden of “establishing that there was

probable cause of driving under the influence of alcohol” to require a DUI defendant

to submit to an Intoxilyzer test.110 To satisfy its burden, “the State must establish

only the probability, and not a prima facie showing of criminal activity.” 111 “Even


107
   State v. Iyer, 2011 WL 976480, at *6 (Del. Super. Feb. 23, 2011) (internal quotation marks
removed). See also Jenkins v. State, 970 A.2d 154, 157 (Del. Apr. 6, 2009) (“In reviewing a trial
court’s decision on a motion to suppress, we evaluate the court’s legal conclusions de novo. We
review factual findings to determine whether the trial judge abused his or her discretion in
determining whether there was sufficient evidence to support the findings and whether those
findings were clearly erroneous.”) (internal quotation marks removed).
108
      Bease v. State, 884 A.2d 495, 498 (Del. 2005).
109
      Id.
110
      Id.
111
      Iyer, 2011 WL 976480, at *6 (internal quotation marks removed).


                                                 23
when any one fact, considered in isolation is insufficient, if, under the totality of the

circumstances, the collective facts suggest a fair probability that the defendant has

committed a crime, then the State has established probable cause.”112

          Upon thorough review of the record, this Court concludes that the Trial

Court’s finding of probable cause to subject Appellant to the Intoxilyzer test is

proper. The Trial Court found that Appellant admitted to drinking, 113 smelled of

alcohol,114 had bloodshot eyes,115 was unable to provide a valid driver’s license,116

caused a vehicular accident while driving on a suspended license,117 and displayed




112
   Id. (internal brackets removed) (internal quotation marks removed). See also State v. Maxwell,
624 A.2d 926, 930 (Del. May 21, 1993) (“A finding of probable cause does not require the police
to uncover information sufficient to prove a suspect’s guilt beyond a reasonable doubt or even to
prove that guilt is more likely than not.”); State v. Hughes, 2003 WL 21213709, at *2 (Del. Super.
May 6, 2003) (“Although the facts considered in isolation may be insufficient to establish probable
cause, when viewing the facts in the totality of the circumstances it appears that the police
possessed enough trustworthy information to warrant a man of reasonable caution to conclude that
[the defendant] was driving under the influence...”).

  Appellant states that Corporal Schultz asked him, “Have you been drinking this morning?”
113

Appellant admits that he responded, “Yes… it’s my birthday tonight.” Appellant’s Reply, at 4.
114
    Appellant concedes that “[b]ecause [he] admitted drinking at some point prior to the accident,
it would make sense that his person and clothing would emit an odor of alcohol.” Id. at 3.
115
      Appellant does not deny that his eyes were bloodshot but argues that it was “negligible.” Id. at
3.
116
   Appellant admits that he informed Corporal Schultz that his driver’s license was suspended for
a prior DUI. Appellant’s Opening Brief, at 7-8.
117
      Appellant admits that he informed Corporal Schultz that he was at fault in the accident. Id. at
2.


                                                   24
nervous behavior.118 The Trial Court also found that Appellant’s numerous quasi-

admissions119 and difficulty in cooperating with Corporal Schultz weighed against

Appellant in determining probable cause under the totality of the circumstances.

(Additionally, a neighbor watched Appellant operate the offending vehicle). Pursuit

to Delaware case law, these factors were sufficient to establish probable cause to

administer an Intoxilyzer test on Appellant.120

               Furthermore, the Trial Court’s factual findings are supported by

substantial evidence. The Trial Court based its findings on the testimony of Corporal

Schultz and the body camera video that accurately reflected her recollection of the

incident.     Appellant does not challenge the credibility of Corporal Schultz’s

testimony or the accuracy of the body-cam video.121



118
   Appellant concedes that he engaged in “nervous chatter,” but he characterizes it as “minimal
and pleasant in tone.” Appellant’s Reply, at 4.
119
   Appellant acknowledges that he made “quasi-admissions of poor judgment” but he argues that
he “may have been unfairly harder on himself than necessary in an effort to curry favor with Cpl.
Schultz.” Id. at 6.
120
   See State v. Maxwell, 624 A.2d 926, 930-31 (Del. May 21, 1993) (In reversing and remanding,
the Delaware Supreme Court held that two witnesses informing the police that the defendant
admitted to drinking, one witness informing the police that the defendant appeared dazed, the
defendant being involved in a single-vehicle accident, and the overturned vehicle having a strong
odor of alcohol and several empty and full containers of beer was a sufficient set of facts to
establish probable cause for the purposes of obtaining a blood alcohol test of the defendant.).
121
    In fact, in his appeal, Appellant is satisfied that the video accurately shows his interactions with
Corporal Schultz. Appellant writes that “[t]he body camera footage dispels any notion that
[Appellant] was an impaired driver.” Appellant’s Opening Brief, at 6. He appears to assert, in an
attempt to support his argument, that the body camera accurately recorded that Appellant
maintained normal balance, exhibited normal coherent speech, was in full control of his faculties,
                                                  25
          In Bease v. State, the Delaware Supreme Court found probable cause where

the “record reflect[ed]” that the defendant in that case “spoke in a rapid manner [to

the officer], smelled of alcohol, admitted that he consumed alcoholic beverages the

night before, had bloodshot and glassy eyes, and had just committed a traffic

violation by making an improper lane change in an abrupt manner.”122 The Delaware

Supreme Court held that, based upon these facts, there existed “a quantum of

trustworthy factual information, ‘sufficient in themselves to warrant a man of

reasonable caution’ to conclude that probable cause existed to believe that [the

defendant] was driving under the influence of alcohol at the time [the officer]

stopped him.”123

          In State v. Iyer, a cooperative defendant’s watery and glassy eyes, moderate

odor of alcohol, involvement in a single-vehicle accident, and admission to drinking

hours before the accident established probable cause.124 This Court held that these


and was pleasant and cooperative. Id. at 6. He also states that the video shows that his bloodshot
eyes were “negligible.” Id. at 3.
122
   Bease v. State, 884 A.2d 495, 499-500 (Del. Sept. 29, 2005). Although Appellant notes that the
defendant in Bease failed an additional test - the alphabet test, the Delaware Supreme Court wrote
that “[i]n its analysis, the Superior Court considered: Bease’s abrupt driving movement, the odor
of alcohol on his breath, his glassy and bloodshot eyes, and his admission to having consumed
beer or chardonnay the night before.” Id. at 498. The Delaware Supreme Court then listed these
factors in its holding that the record reflected sufficient evidence “to establish probable cause for
administration of the intoxilyzer test…” Id.
123
      Id (internal quotation marks removed).
124
      State v. Iyer, 2011 WL 976480, at **1, 13 (Del. Super. Feb. 23, 2011).


                                                 26
facts were “sufficient in themselves to warrant a person of reasonable caution to

believe that [the defendant] was driving under the influence of alcohol at the time of

the accident.”125 This Court further stated that the totality of these circumstances

“undoubtedly established a fair probability, as a matter of law, the [the defendant]

was driving under the influence of alcohol separate and apart from the field tests and

the PBT.”126

          Moreover, the cases cited by Appellant in support of this appeal are

distinguishable from the instant case. In State v. Dale, this Court granted the

defendant’s motion to suppress when it found that a DUI defendant’s “bloodshot

eyes at 5:30 a.m.,…[an] inside out and backwards [shirt],… a moderate smell of

alcohol”, and failure to properly perform an alphabet test127 were insufficient to




125
      Id. (original brackets removed).
126
      Id. (internal quotation marks removed).
127
   In Dale, the Court noted that the defendant failed to properly perform the alphabet test. The
Court in Dale wrote that the defendant was asked by the officer to “say the alphabet starting with
C and ending with P.” State v. Dale, 2016 WL 691445, at *3 (Del. Super. Feb. 11, 2016). The
defendant simply stated “C and P.” Id. The Court concluded that the defendant “either
misunderstood the instructions or failed the alphabet test” but that he “completed the number
counting test with no issue.” Id.


                                                27
support a finding of probable cause.128 However, the Court noted that those facts

were “close” to being sufficient for a finding of probable cause.129

            Here, as previously discussed, in addition to having bloodshot eyes and

smelling of alcohol, Appellant readily admitted to drinking on the morning of the

incident, admitted to causing a vehicle accident, was driving on a suspended license,

was unable to produce a driver’s license,130 made incriminating statements, and

engaged in nervous chatter.

            In State v. Sexton,131 the Court of Common Pleas found that probable cause

did not exist when there was a two-vehicle accident of undetermined cause, an odor

of alcohol, glassy eyes, and admission to drinking at an unspecified time. 132

Particularly important to the court in Sexton was the fact that there were two parties

involved in the accident and there was no evidence that the defendant “caused the

accident or otherwise committed a traffic offense.”133 In addition, the court noted


128
   In the fact section, the Court in Dale noted that the defendant initially denied drinking but “later
stated that he had been.” Id. at *1. When discussing whether the facts were sufficient for probable
cause, the Court did not include the defendant’s admission to drinking.
129
      Id. at *4.
130
   In Dale, the Court noted that the defendant was able to produce his driver’s license and he was
not driving erratically or aggressively. Id. at *1.
131
      State v. Sexton, 2020 WL 755172, at *4 (Del. Comm. Pl. Feb. 14, 2020).
132
      Id.
133
      Id. at *3.


                                                  28
that there was no evidence indicating the proximity in time of the drinking to the

accident, and the court found that “[a]bsent a time marker of when alcohol was

consumed, no rational inference can be drawn regarding intoxication.”134

            In contrast, Appellant was involved in a single-vehicle accident where he

admitted fault. Moreover, he committed a traffic offense at the time of the accident

(driving with a suspended license). Furthermore, Appellant’s disclosure that he had

been drinking on the morning of the incident served as a time marker as to when

alcohol was consumed, which allowed for a rational inference regarding Appellant’s

intoxication.135

            Similarly, State v. Beheler is also not helpful to Appellant’s case.136 In

Beheler, the Court of Common Pleas held that the moderate smell of alcohol on the

breath, watery eyes, and admission of alcohol consumption was insufficient to

establish probable cause.137 However, the factors in the instant case, as discussed

above, are significantly more than those presented in Beheler.138


134
      Id.
135
      See footnote 113.
136
      State v. Beheler, 2010 WL 2195978, at *4 (Del. Comm. Pl. Apr. 22, 2010).
137
   The Court of Common Pleas also noted that the defendant was not driving erratically and that
the defendant’s loss of balance while exiting his truck occurred when it was dark and that the road
was slanted and the truck was elevated. Id.
138
  Appellant caused a vehicle accident, drove on a suspended license, behaved nervously, and
made incriminating statements.


                                                29
          In addition, Appellant’s contention that the totality of the evidence precludes

a determination of probable cause is without merit. Appellant appears to argue that

his presentation of relevant documents without difficulty; appropriateness of the

documents provided; volunteering his driving transgressions; his ability to engage

in a “normal conversation”;139 the absence of disheveled clothing; normal balance

and coordination; and a non-combative demeanor should tip the balance against a

finding of probable cause.”140

          However, the determination as to the existence of probable cause must be

based on a consideration of the totality of the circumstances and not only on the facts

that are favorable to a defendant.141 In Lefebvre v. State, the Delaware Supreme

Court held that probable cause existed under the totality of the circumstances despite

the fact that the defendant had fair speech and passed the field sobriety tests.142

Similarly, in Slaney v. State, this Court rejected a DUI defendant’s argument that

“probable cause would not have been established” had the trial court considered the

defendant’s “cognitive clarity, demeanor, speech fluency, memory, balance,




139
      Appellant’s Opening Brief, at 7-9.
140
      Id. at 11.
141
      Miller v. State, 4 A.3d 371, 373-74 (Del. June 7, 2010).
142
      Lefebvre v. State, 19 A.3d 287 (Del. Apr. 26, 2011).


                                                  30
explanation for consumption of alcohol [and] circumstances of consumption.”143

The Court in Slaney held that the fact that the defendant “was cognitively aware of

the situation and able to balance does not negate a finding of probable cause.”144

            So too, here, in light of the numerous facts indicating that Appellant was

driving under the influence, other facts that arguably show that Appellant had a

degree of control over his faculties and was aware of the situation do not negate

probable cause.

            Lastly, Appellant’s suggestion that there could have been innocent

explanations for some of the facts considered to establish probable cause (including

bloodshot eyes,145 the single-vehicle accident,146 and his quasi-admissions)147 does

not negate probable cause.148 The law is clear that “[h]ypothetically innocent

explanations for facts learned during an investigation do not preclude a finding of




143
      Slaney v. State, 2016 WL 5946485, at *6 (Del. Super. Oct. 7, 2016).
144
      Id.
145
      It was early in the morning.
146
      The street was narrow.
147
      Appellant was hard on himself to curry favor with Corporal Schultz.
148
   State v. Hughes, 2003 WL 21213709, at *2 (Del. Super. May 6, 2003) (“[T]he fact that there
may be an innocent explanation for some of those facts… does not negate the officers finding of
probable cause.”).


                                                 31
probable cause.”149 As such, the officer was not required to “rule out potentially

innocent, alternative explanations” for Appellant’s incriminating conduct and

appearance before subjecting Appellant to the Intoxilyzer test.150

                                            Conclusion

          Accordingly, for the foregoing reasons, the decision of the Court of Common

Pleas is AFFIRMED.


                                                       /s/Diane Clarke Streett
                                                       Diane Clarke Streett, Judge




149
    Stafford v. State, 59 A.3d 1223, 1229 (Del. Dec. 4, 2012); Lefebvre v. State, 19 A.3d 287, 293
(Del. Apr. 26, 2011) (“That hypothetically innocent explanations may exist for facts learned during
an investigation does not preclude a finding of probable cause.”); State v. Iyer, 2011 WL 976480,
at *13 (Del. Super. Ct. Feb. 23, 2011) (“The police investigation of an automobile accident is not
required to eliminate possible innocent explanations for facts that militate towards the existence
of probable cause.”).
150
      Rybicki v. State, 119 A.3d 663, 671 (Del. July 20, 2015).
                                                  32
