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

STATE OF DELAWARE )
)
Vv. ) Case No. 1903019680
)
CRISTIAN MENDEZ-GARCIA )
)
Defendant. )
Submitted: | October 8, 2019
Decided: October 16, 2019
Isaac Rank, Esquire Thomas A. Foley, Esquire
Deputy Attorney General 1905 Delaware 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 EVIDENCE
Defendant Cristian Mendez-Garcia was arrested and charged for Driving Under the
Influence (“DUI”) in violation of 21 Del. C. § 4177(a)(1). Defendant timely filed the present
Motion to Suppress Evidence (“Motion”) in which he seeks to suppress all evidence gathered by
the New Castle County Police, including the results of the intoxilyzer test administered to
Defendant. Defendant alleges that the field sobriety tests conducted by the officer were not
consistent with National Highway Transportation Safety Administration (“NHTSA”) standards
and that the officer did not have probable cause to arrest Defendant. The State opposes

Defendant’s Motion, arguing that the field sobriety tests were administered in compliance with
NHTSA. Alternatively, the State argues that absent the field sobriety tests, the officer had probable
cause to arrest Defendant based on the officer’s observations of the Defendant.

On October 8, 2019, the Court held a suppression hearing. At the conclusion of the hearing,
the Court took the matter under advisement. This is the Final Decision of the Court on Defendant’s
Motion.

FACTS AND PROCEDURAL HISTORY

On October 8, 2019, the Court held a hearing on Defendant’s Motion. At the hearing, State
witness and arresting officer Corporal Shultz testified as to her training and experience with DUI
cases, as well as the certification process for DUI training.! She testified that at approximately
6:30 a.m. on the moming of March 30, 2019, she was on patrol duty and wearing a body camera
when she was called out to the area of Danbury Drive in New Castle County, Delaware, for a
vehicle collision investigation. Upon arriving at the scene, she approached Defendant, who was
standing outside of the vehicle in question.

Corporal Shultz asked Defendant for his registration and insurance card, but Defendant
was unable to produce his physical driver’s license. While Defendant gathers his registration and
insurance information, Defendant admitted to Corporal Shultz that his license was suspended due
to entering a guilty plea and being sentenced on a prior DUI. At this time, she observed Defendant
smelled of alcohol and had bloodshot eyes. Additionally, Defendant admitted to drinking alcohol
on the day in question. Corporal Shultz determined that a collision involving Defendant did occur

and testified that pieces of the car light from Defendant’s car were found near the victim’s car.

 

' See Def.’s Mot. to Suppress Hr’g (Corporal Shultz testified that she took part in approximately thirty-two hours of
DUI detection classroom training, approximately eight hours of wet-lab training and approximately four hours of
intoxilyzer training).
Corporal Shultz testified Defendant was willing to cooperate with field sobriety tests.
Corporal Shultz proceeded to conduct three field sobriety tests including, the horizontal gaze
nystagmus test (““HGN”), the walk-and-turn test, and the one-leg-stand test. Corporal Shultz
testified that Defendant exhibited all six clues for HGN, two clue for the walk-and-turn test and
zero clues for the one-leg-stand test. Ultimately, as a result of the field sobriety tests, Corporal
Shultz administered a portable breathalyzer test (“PBT”) on Defendant.

During the October 8, 2019, suppression hearing, Corporal Shultz testified that she was
wearing a body camera during the March 30, 2019, encounter with Defendant, and that the video
fairly and accurately reflected her recollection of the incident. The body camera footage was
played during the October 8, 2019, suppression hearing and admitted into evidence. Through this
video and audio footage, the Court observed the accident scene and the Defendant’s conduct.

Defendant’s recorded statements, while perhaps not admissions per say, certainly weigh
against Defendant under the totality of the circumstances. The Defendant admitted to backing up
too quickly and striking a parked car. On numerous occasions. Defendant made statements using
expletive language describing how bad he messed up; that he should have taken an Uber or Lift,
and that he had ruined his life. While Corporal Shultz was attempting to administer the HGN,
Defendant was having difficulty keeping his head still and struggled to follow the stimulus with
only his eyes. Corporal Shultz repeatedly advised Defendant to stop moving his head, and
suggested he stop talking and focus on the stimulus. Even after this warning, Defendant continued
to make profanity laced quasi-admissions.

Corporal Shultz testified to both her specialized training and the NHTSA standards with

regard to the HGN test only. Corporal Shultz did not testify as to her specialized training or the
NHTSA standards for the walk-and-turn or one-leg-stand tests. Corporal Shultz did briefly discuss
the clues an officer looks for when conducting the walk-and-turn and the one-leg-stand tests.

Corporal Shultz testified that there are eight clues to the walk-and-turn test. According to
Corporal Shultz’s testimony, there are two stages to the walk-and-turn test. At the first stage, or
the instruction stage, there are two clues; (1) that Defendant does not start the test too early; and
(2) that Defendant can maintain balance. At the second stage of the test, or the walking stage,
there are six clues. The six clues are whether the Defendant; (1) missed a heel to toe; (2) steps off
the line; (3) uses their arms for balance; (4) raises arms;? (5) turns incorrectly; or (6) stops walking
prior to completion of the test.

As for the one-leg-stand test, Corporal Shutlz testified that there are four clues officers look
for while conducting the test. The four clues consist of whether Defendant; (1) puts their foot
down; (2) uses their arms for balance; (3) sways; or (4) hops.

Following the field sobriety tests, Corporal Shultz administered a PBT. Corporal Shultz
testified that it is standard practice to wait fifteen minutes after coming in contact with a defendant
to administer a PBT, and that she did wait fifteen minutes before administering the PBT to
Defendant. After conducting the PBT, Corporal Shultz arrested Defendant and transported
Defendant back to the New Castle County Police Station, where an intoxilyzer test was
administered on Defendant.

PARTIES’ CONTENTIONS
Defendant generally argues that Corporal Shultz’s administration of the field sobriety tests

were conducted in a manner not consistent with NHTSA standards. Defendant asserts that

 

2 See Def.’s Mot. to Suppress Hr’g (although Corporal Shultz testified that “raising arms” is a clue of the walk-and-
turn test, NHTSA does not provide for raising arms as a separate standard. In addition, the officer failed to mention
taking the wrong number of steps as a clue, which is included as part of NHTSA standards).
Corporal Shultz did not have probable cause to place Defendant under arrest after administering
the field sobriety tests. Defendant additionally argues that the length of detention constitutes an
arrest of Defendant as it was not “carefully tailored to its underlying justification,” and therefore,
probable cause for arrest was necessary.? Defendant argues the arresting officer did not have
probable cause for Defendant’s arrest and transportation to New Castle County Police
Department.* Defendant finally asserts that all evidence gathered in violation of the Fourth
Amendment is fruit of the poisonous tree.

The State opposes Defendant’s Motion, arguing that the field sobriety tests are admissible
and were administered according to NHTSA standards. In particular, the State argues that
Corporal Shultz’s observation of Defendant during the HGN test are admissible. The State asserts
that based on the totality of the circumstances test for probable cause, Defendant’s passing results
after conducting the walk-and-turn and the one-leg-stand tests do not negate Corporal Shultz’s
other observations of Defendant. The State also argues that regardless of the admission of the field
sobriety tests, the officer had probable cause to arrest Defendant for DUI based on other
incriminating observations.

DISCUSSION
At the heart of the Fourth Amendment to the United States Constitution ts the concept of

protecting persons from unreasonable governmental intrusions. In Terry v. Ohio, the United States

 

3 State v. Chandler, 132 A.3d 133, 143 (Del. Super. Ct. 2015) (“[o]nce Trooper Radcliffe asked Chandler if there was
any contraband in his vehicle, the traffic stop was extended into an investigative detention that exceeded the justifying
purpose of the stop (i.e. speeding). At this point, the traffic stop ended and it became a second detention that was
required to be based on specific and articulable facts which, taken together with all rational inferences, raise an
objective suspicion of criminal behavior.”).

4 See State v. Maxwell, 624 A.2d 926, 930 (Del. 1993) (“[t]o establish probable cause, the police are only required to
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 crime.”).
Supreme Court explained, “what the Constitution forbids is not all searches and seizures, but
unreasonable searches and seizures.”° As noted in Terry:
[t]he scheme of the Fourth Amendment becomes meaningful only when it is
assured that at some point the conduct of those charged with enforcing the laws can
be subjected to the more detached, neutral scrutiny of a judge who must evaluate
the reasonableness of a particular search or seizure in light of the particular
circumstances.°
Delaware case law follows that probable cause shall be viewed under a totality of

7 Probable cause

circumstances standard based upon the police officers training and experience.
exists where the facts and circumstances with in 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.® The State
bears the burden of establishing by preponderance of the evidence that the challenged police
conduct was not in violation of the defendant’s constitutional or statutory protections.? On a
“motion to suppress, the State must establish, by a preponderance of the evidence, that Defendant’s
arrest was supported by probable cause.”'° To establish probable cause for a DUI arrest, the state
“must present facts which suggest, when those facts are viewed under the totality of the

circumstances, that there is a fair probability that the defendant has committed a DUI offense.”!!

 

> Terry v. Ohio, 391 U.S. 1, 9 (1968).

® Id. at 21.

T See State v. Wise, 2016 WL 7468058, at *4 (Del. Super. Ct. Dec. 22, 2016); see also State v. Reilly, 2018 WL
7049372, at *3 (Del. Com. Nov. 30, 2018) (Court of Common Pleas found probable cause existed based on officer’s
observations alone).

8 See Bease v. State, 884 A.2d 495, 498 (Del. 2005) citing State v. Maxwell, 624 A.2d 926, 928 (Del. 1993); see also
Brinegar v. United States, 338 U.S. 160, 175-76 (1949).

? See Hunter v. State, 783 A.2d 558, 560 (Del. 2001).

'° State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Ct. Oct. 14, 2010).

'l Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011).
As the trier of fact, the Court is in the best position to determine witness credibility.!* The
Supreme Court of Delaware in Taylor v. State, asserts that a “fundamental tenet of American
Jurisprudence .. . [is that the] trier of fact [is] responsible for determining witness credibility,
resolving conflicts in testimony and for drawing any inferences from the proven facts.”

The credibility of Corporal Shultz is not a significant factor in this case as much of her
testimony is confirmed by video. At the suppression hearing, the defense questioned her
observations regarding the HGN, as the movement of the Defendant’s eyes were not observable
on video; however, due to the Court’s ruling on HGN, this is not material. The Corporal’s
testimony from the witness stand, and the Court’s observations of the Corporal on video, provide
the Court no basis to question the witness’ credibility.

A. Field Sobriety Tests

The Delaware Supreme Court has held that “prior to the admission of HGN evidence the
State must provide [a] proper foundation . . . by presenting testimony from an expert with
specialized knowledge and training in HGN testing and its underlying principles... .”!* In Miller,
the Court further explained that “the trial judge abused his discretion by admitting HGN results
when the administering officer ‘did not testify about the standards set forth in the NHTSA training
manual’ or ‘that the [administered] test was performed in accordance with NHTSA standards.’”!>

Here, Corporal Shultz was given the opportunity to testify about the standards set forth by

NHTSA and whether the HGN test was performed in accordance with NHTSA standards. This

 

2 See Bethard v. State, 28 A.3d 395, 399 (Del. 2011) citing Knight v. State, 690 A.2d 929, 932 (Del. 1996) (noting
“the trier of fact is ‘the sole judge of credibility of the witnesses and is responsible for resolving conflicts in
testimony.’”’).

'3. 679 A.2d 448, 452 (Del. 1996); see also Newman v. State, 942 A.2d 588, 595 (Del. 2008) (finding “it is the sole
province of the fact finder to determine witness credibility, resolve conflicts in testimony and draw inferences from
the proven facts.”).

4 Miller v. State, 4 A.3d 371, 374 (Del. 2010) (citing Zimmerman v. State, 693 A.2d 311, 314 (Del.1997)); see also
State v. Ruthardt, 680 A.2d 349, 351-52 (Del. Super. Ct. 1996).

'S Id. at 374.
Court finds Corporal Shultz’s testimony based on the NHTSA standards of the HGN insufficient
to establish a proper foundation. Corporal Shultz did not testify regarding a number of NHTSA
standards. By way of example, Corporal Shultz did not testify as to the position of the stimulus.
The officer failed to testify regarding the potential false positives an officer may encounter when
administering the HGN test, or her ability to rule them out in this case. Here, an accident occurred,
which while minor, required the officer to rule out whether the Defendant sustained a head injury.
Therefore, the Court finds that the officer’s testimony regarding the NHTSA standards for the
HGN fail to establish a proper foundation and will not factor into the Court’s determination of
probable cause.

The State is also required to offer testimony regarding the NHTSA standards for the walk-
and-turn test and for the one-leg-stand test and testimony that those standards were in fact
followed. The State failed to offer testimony regarding the standards of the walk-and-turn and the
one-leg stand tests or testimony regarding Corporal Shultz’s training in administering each test.
Therefore, Corporal Shultz’s administration of the walk-and-turn test and the one-leg-stand test do
not weigh as factors in the Court’s determination of probable cause. Moreover, the Defendant
successfully completed the one-leg-stand test. As for the walk-and-turn test, Corporal Shultz
testified to two clues; however, these clues are not evident on the body camera footage.

The Court will not consider the results of Defendant’s PBT. Pursuant to well established
Delaware law, to admit the results of a PBT test into evidence the “State must lay a proper
foundation, by establishing that the police officer properly calibrated the PBT machine, and that

the officer had been trained to operate the test.”'® In State v. Clay, the Delaware Superior Court

 

'6 Miller v. State, 4 A.3d 371, 374 (Del. 2010); see also State v. Caputo, 1999 WL 1847363, at *2 (Del. Com. PI. June
10, 1999) (finding “a proper foundation was laid that the [PBT] machine was calibrated correctly; the Officer was
trained to operate the test” prior to giving its results weight).
refused to consider a PBT because the “officer was unable to testify that the unit had been
calibrated at all. ...”!’ Here, the State failed to provide testimony or records regarding Corporal
Shultz’s PBT calibration. Therefore, the PBT test administered to the Defendant by Corporal
Shultz will not weigh as a factor in the Court’s determination of probable cause.
Nonetheless, the Court need not rely on the validity of the field sobriety tests in making its
determination regarding the existence of probable cause.
B. Officer’s Observations
Notwithstanding the invalid field sobriety tests, Corporal Shultz had sufficient probable
cause to arrest Defendant for DUI. The Delaware Supreme Court in Bease v. State,'® held that
probable cause existed in a case nearly identical to the instant matter before the Court. In Bease,
the Delaware Supreme Court affirmed a Superior Court decision finding probable cause where:
(1) the defendant was initially stopped for committing a traffic violation; (2) the officer observed
upon subsequent contact with the defendant that the defendant smelled of an alcoholic beverage
from an approximate distance of two feet; (3) the defendant stated that he consumed “chardonnay
or beer the night before;” (4) the defendant’s eyes appeared bloodshot and glassy; and (5) the
defendant was speaking rapidly.'? Like the instant case, the defendant in Bease was also unable

2° Decided on these factors alone, the Delaware Supreme Court

to produce his driver’s license.
went on to say;
[b]ased upon Trooper Penrod’s observations and the rational inferences drawn

therefrom, there existed “a quantum of trustworthy factual information, ‘sufficient

in themselves to warrant a [person] of reasonable caution’ to conclude that probable

 

"" State v. Clay, 2002 WL 1162300, at *3 (Del. Super. Ct. May 28, 2002).
8 884 A.2d 495, 500 (Del. 2005).

'9 Td. at 499-500.

2° Id at 499,
cause existed” to believe Bease was driving under the influence of alcohol at the

time Trooper Penrod stopped him. Accordingly, the Superior Court correctly

concluded that the totality of circumstances was sufficient to establish probable

cause to test Bease by an intoxilyzer. Consequently, Bease’s motion to suppress

those test results was properly denied.”!

The Court concludes probable cause existed based upon the following observations of
Corporal Shultz: (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; (3) Defendant admitted to Corporal Shultz he was drinking alcohol; (4) Corporal
Shultz observed that Defendant smelled of alcohol; (5) Corporal Shultz observed Defendant’s eyes
were bloodshot. In addition, Defendant’s inability to cooperate with Corporal Shultz’s
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 a substantial basis for Corporal Shultz to conclude that probable cause existed to
effectuate an arrest.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED this 16" day of October, 2019,

that Defendant’s Motion to Suppress Evidence be DENIED. The matter is scheduled for trial on

October 22, 2019.

 

cc: Dianaja A. Brown, Judicial Case Manage

 

2! Id. at 500.

10
