       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                         :
                                           :         ID No. 1901016324
                v.                         :         In and For Kent County
                                           :
DARRYL J. COFIELD,                         :
                                           :
                Defendant.                 :




                                      ORDER

                             Submitted: January 21, 2020
                              Decided: January 27, 2020

      On this 27th day of January 2020, after considering the evidence presented at
a contested violation of probation hearing and the arguments of the parties, it appears
to the Court that:
      1.     Probation and Parole charged Probationer Darryl Cofield with violating
a condition of his probation imposed after a third offense driving under the influence
of alcohol conviction. The State alleges that he drank alcohol based on a drinking
event report from a transdermal continuous alcohol monitoring device (“TAD”).
Mr. Cofield contests the allegation. He denies that he drank alcohol and claims that
the December 19, 2019 positive result for alcohol use came from his use of Icy Hot
on the same ankle where Probation and Parole placed his TAD. At Mr. Cofield’s
request, the Court held a contested VOP hearing on January 13, 2020.
      2.     In the Court’s September 19, 2019 sentence, it sentenced Mr. Cofield
to one year of Level V, further suspended after three months pursuant to 21 Del. C.
§ 4177(d)(9), to be followed by three months of Level IV home confinement,
followed by one year of Level II probation. Section 4177(d)(9) of Title 21 permits
the Court to suspend what would otherwise have been a one-year minimum sentence
for ninety days incarceration.           That paragraph, however, provides the Court
discretion to do so only if a defendant meets certain statutory requirements. The
requirement relevant to Mr. Cofield’s case requires that “the offender maintain a
period of not less than 90 consecutive days of sobriety as measured by a TAD device
or through periodic breath or urine analysis[.]”1
       3.      After an evidentiary hearing, the Court finds the following facts to a
preponderance of the evidence. Kent County Probation and Parole’s TAD officer,
Officer Brower, fitted Mr. Cofield with a TAD device on December 11, 2019.
Thereafter, Probation and Parole requested Mr. Cofield to return to the office on
December 17 or 18, 2019 to exchange his TAD bracelet. On December 19, 2019,
Mr. Cofield’s TAD device alerted to a suspected alcohol event.                     When Officer
Brower next returned to the office, after the alert and after the weekend, he contacted
BI Inc. (“BI”), the third-party contractor who administers TAD devices for the State
of Delaware. A BI technician confirmed with Officer Brower by telephone that Mr.
Cofield’s TAD alert represented a drinking event. The BI telephonic confirmation
ruled out a false positive from any other event, such as the use of cough syrup or
mouthwash. Officer Brower then arrested Mr. Cofield for a violation of probation
and filed a report.
       4.      In a violation of probation hearing, the burden is on the State to prove
by a preponderance of the evidence that the defendant violated his probation.2
Hearsay is admissible at violation of probation hearings.3 However, the State cannot

1
  21 Del. C. § 4177(d)(9).
2
  Rossi v. State, 140 A.3d 1115, 1120 (Del. 2016) (citation omitted).
3
  Id. at 1117 (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006) to explain that the State must
prove by a preponderance of the evidence that the “conduct of the probationer has not been as
good as required by the conditions of probation”).
                                                 2
rely entirely upon hearsay.4 There must be “some competent evidence to prove the
violation asserted.”5 Competent evidence is “evidence that would be admissible in
a . . . trial and is proof that the defendant violated the terms of [his or her] probation.”6
Furthermore, “[i]nadmissible hearsay, without some corroborating admissible
evidence, is “a basis too untrustworthy [to terminate a person’s freedom].”7
       5.     Here, Mr. Cofield argues that the State’s case rests solely upon hearsay.
Namely, BI leases and monitors Delaware’s TAD devices. BI personnel also
confirm the results and relay the confirmations by email and telephone to Delaware
Probation and Parole. Mr. Cofield argues that because the officers responsible for
deploying the devices cannot explain the science behind the equipment or attest to
their calibration, the State cannot meet its burden by relying on the results alone.
The State counters that the relevant Delaware Code provision requires that a TAD
device monitor sobriety for a period of ninety days as a condition of probation. The
State argues that baked into that statutory requirement is a condition of probation
providing that a positive reading alone is sufficient to qualify as a violation.
       6.      The State correctly recognizes that the General Assembly permits the
Court to suspend a one-year minimum sentence after ninety days only if the
defendant meets certain conditions.8 The General Assembly’s decision to condition
a suspended sentence upon the monitoring of a particular scientific device—a
transdermal continuous alcohol monitoring device—demonstrates its policy
judgment that alcohol use during that period should constitute a violation of
probation.

4
  Id. at 1122.
5
  Brown v. State, 249 A.2d 269, 272 (Del. 1968).
6
  Rossi, 140 A.3d at 1119.
7
  Id. at 1119–20 (quoting Brown, 249 A.2d at 272). See also State v. Hopkins, 2016 WL 6958697,
at *2 (Del. Super. Nov. 23, 2016) (explaining in the context of a suppression hearing contesting
probable cause that hearsay alone is an insufficient basis for probable cause).
8
  21 Del. C. § 4177(d)(9).
                                               3
       7.     Due process requires another layer of analysis other than relying solely
upon a test result, however. A contested violation of probation hearing does not
hinge on the validity or appropriateness of including a condition in the Court’s order.
Rather, it involves the Court’s determination regarding whether the probationer
violated the condition. Notwithstanding the General Assembly’s choice to include
this condition permitting the suspension of mandatory time, the Court may revoke a
defendant’s probation only upon its finding of a violation of the condition. When
doing so, the Court’s function is the same as it is in any other contested violation of
probation hearing.
       8.     The Court recognizes at the outset that Probation and Parole may rely
upon hearsay from a third-party. In fact, it may rely primarily upon hearsay, such
as TAD results or urinalysis results, when proving violations of probation.
Nevertheless, some competent evidence must support the third-party’s report that
the probationer used alcohol.
       9.     In this regard, there is no meaningful distinction between this case and
cases involving probationer drug and alcohol urine testing. The Delaware Supreme
Court’s decision in Hester v. State9 is instructive regarding the quantum of
competent evidence necessary to corroborate a probationer’s positive drug or alcohol
test. There, the Court recognized that an out-of-office confirmation of a positive
urinalysis test was fully admissible in a violation of probation hearing.10
Nevertheless, in the face of a due process challenge, the Court in Hester recognized
that additional evidence of a violation was necessary to support a finding of
violation.11 The Court found that the testimony of a Treatment Access Center

9
  791 A.2d 750, 2002 WL 24332, at *1–2 (Del. 2006) (TABLE) (citing Brown, 249 A.2d at 272
when determining a urinalysis report and a case manager’s testimony were sufficient evidence to
show the defendant committed a violation of probation).
10
   Id. at *1.
11
   Id.
                                              4
counselor that administered the urinalysis was sufficient to constitute competent
evidence supporting the finding of violation.12 When so finding, the Court observed
that she “testified in detail regarding the procedures for the test and identified the
report from the toxicology laboratory reflecting that the sample . . . tested positive
for cocaine.”13
       10.    In the case at hand, the record contains insufficient competent evidence
to support a finding of violation. Here, to revoke probation, the Court would need
to do so based upon the testimony of a witness that had “no first-hand knowledge of
the events constituting the violation.”14 Here, Officer Brower testified credibly that
he initially fitted Mr. Cofield with an original TAD unit. He also confirmed that
Probation and Parole later fitted Mr. Cofield with a new TAD unit before the alert
on December 19, 2019. He cited calibration related concerns as the reason for
substituting the TADs. While Officer Brower testified that, by practice, he would
have expected to have been the one to substitute the unit, he qualified that by stating
“I think I put a new one on him.” Mr. Cofield testified contrarily that on December
17 or 18, 2019, a female officer called him to the Dover office to switch the unit
because of calibration issues.
       11.    Absent from the record is any evidence regarding calibration of the unit.
Here, the Court need not address to what extent, if any, evidence regarding the
device’s calibration is necessary for foundational purposes in a violation of
probation hearing. Apart from that issue, the record does not contain sufficiently
detailed evidence regarding the process for fitting the bracelet or the procedures


12
   Id.
13
   Id.
14
   See Collins v. State, 897 A.2d 159, 160–61 (Del. 2016) (citation omitted) (confirming this
principle in a case where hearsay regarding an alleged victim’s accusation of a crime was
insufficient, notwithstanding broken items and property damage consistent with the fact that a
crime was committed, but not that the defendant was the one who committed it).
                                              5
regarding what measures, if any, are used to insure that the equipment would produce
an accurate result. Nor did the State present any evidence of record corroborating
the test report, such as an admission of violation, testimony regarding an odor of
alcohol about the defendant, a beer can or bottle, or observations regarding Mr.
Cofield’s demeanor close in time to the TAD reading. While the Court finds Officer
Brower’s testimony credible in all respects, he candidly did not have a specific
recollection of being the one who fitted the new (and relevant) bracelet on Mr.
Cofield on December 17 or 18. The positive test report came within two days of this
fitting. In contrast, Mr. Cofield’s sworn testimony provided that (1) he did not drink
alcohol, and (2) that a female officer—who did not testify—performed the “swap.”
The Court declines to disregard Mr. Cofield’s testimony. After observing his
demeanor, and evaluating his testimony in conjunction with the other evidence, the
Court accepts his testimony on this issue.
      12.    After the hearing, at the Court’s request, the parties addressed the issue
of what is the least amount of competent evidence necessary to corroborate a TAD
report. The Court requested that the parties focus on the potentially corroborative
facts in this case—Officer Brower’s initial installation of the TAD—and whether
that constituted sufficient competent evidence.
      13.    Mr. Cofield cited the Delaware Supreme Court’s decision in Grandelli
v. State,15 which is helpful for context but is not controlling. As in the case at hand,
in its Grandelli decision, the Court examined what was sufficient competent
evidence to support a TAD drinking event report.16 The State, in that case, presented
a BI engineer’s expert testimony in the hearing.17 His testimony included that BI
calibrated the TAD every six months and he identified the date that BI had last


15
   2014 WL 4670860 (Del. 2014) (TABLE).
16
   Id. at *3.
17
   Id. at *2.
                                           6
calibrated that probationer’s TAD.18 The engineer further testified regarding how
the TAD worked from a scientific perspective and that, in his opinion, the TAD
worked properly on the day of the alleged violation.19 Given that testimony, in
conjunction with the test report, the Delaware Supreme Court found sufficient
evidence to support the Superior Court’s finding of violation.20
       14.    In the Grandelli decision, the Delaware Supreme Court did not set the
floor for the quantum of competent evidence necessary to support a finding of
violation in the TAD context. Significantly less facts than those present in Grandelli
would be necessary. Here, this Court’s finding does not hinge on a lack of expert
testimony, calibration records, or testimony from a BI representative. Rather, in this
case, the quantum of evidence presented did not meet the floor set in Hester v.
State.21 Third-party testing is a necessary mechanism to enforce drug and alcohol
related conditions of probation. However, to corroborate a third-party generated
TAD result, the proponent must at a minimum still testify in detail regarding the
procedures available to Probation and Parole to ensure the device is accurate. Here,
the State need not have offered evidence as strong as in the Grandelli matter. It did
not, however, meet its burden as recognized in the Hester case.
       15.    In conclusion, Mr. Cofield did not violate a condition of his probation.
He remains on Level IV Home Confinement until successful completion of the
ninety-day Intensive Outpatient Treatment Program required by 21 Del. C. §
4177(d)(9). All other conditions of his probation, including the ninety-day TAD
monitoring requirement, also remain in effect.




18
   Id.
19
   Id.
20
   Id. at *3.
21
   Hester, 2002 WL 24332, at *1–2.
                                          7
      WHEREFORE, the Court finds that Mr. Cofield did not violate the
conditions of his probation on December 19, 2019.
      IT IS SO ORDERED.
                                                    Jeffrey J Clark
                                                        Judge




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