Submitted: December 8, 2014
Upon Defendant's Motion to Suppress Evidence.
Gregory R. Babowal, Esquire, Department of Justice, Dover, Delaware; attorney for the State of Delaware.
P. Scott Wilson, Esquire, Dover, Delaware; attorney for the Defendant. WITHAM, R.J.
Honorable William L. Witham, Jr. Resident Judge
The issue before the Court is whether the Court should grant Defendant's Motion to Suppress all evidence pertaining to his DUI arrest. Defendant's motion argues that the arresting officer lacked reasonable suspicion to pull Defendant over in the first place, and that the officer also lacked probable cause to arrest Defendant because the officer's field sobriety tests were either improperly administered or adequately passed by Defendant. A suppression hearing was held November 19, 2014. After considering the evidence presented at the suppression hearing, and the arguments of counsel, Defendant's Motion to Suppress is denied.
FACTS AND PROCEDURE
The Defendant was arrested on November 18, 2013 and charged with Driving a Vehicle Under the Influence of Alcohol (21 Del. C. § 4177(a)(1)). At the suppression hearing, the State called Officer Robert Cassidy ("Officer Cassidy") of the Delaware State Police as its only witness. Officer Cassidy testified that he has been employed by the Delaware State Police for eight (8) years and prior to that worked for the Wilmington Police for ten (10) years. He is certified in DUI enforcement, DUI detection and field sobriety testing. Officer Cassidy testified that he was patrolling Route 13 in Dover on November 18, 2013, in an unmarked state police vehicle. His attention was drawn to the Defendant's vehicle because the Defendant passed the Officer on his right-hand side at a high rate of speed (higher than the posted limit, estimated by Officer Cassidy to be about 75 miles per hour). Officer Cassidy observed the Defendant nearly rear-ending another vehicle while in the right lane, and then moving onto the shoulder and either skimming the curb or actually hitting it.
At this point, the Officer pulled the vehicle over. Upon contact with the Defendant, Officer Cassidy noticed the smell of alcohol and the Defendant's bloodshot eyes. Officer Cassidy asked the Defendant for his driver's license, registration, and insurance. The Defendant was unable to provide any of the requested information. At the suppression hearing, Officer Cassidy testified that the Defendant admitted to having two (2) beers. The Officer also observed the Defendant speaking in a very fast and slurred manner. These observations prompted Officer Cassidy to administer three (3) field sobriety tests. Prior to administering the test, Officer Cassidy performed the test himself in order to show the Defendant how to do so.
First the Officer asked the Defendant to count backwards from fifty-two (52) to thirty-four (34). The Defendant instead counted backwards from fifty-one (51) to thirty-four (34), missing the first number. Officer Cassidy then asked the Defendant to perform the walk and turn test, whereby the Defendant had his arms up and was swaying. The third test was the one-leg stand test, which the was unable to keep his foot off the ground for the duration of the test, and kept putting his foot down and hopped around in order to maintain balance. Lastly, Officer Cassidy attempted to administer a PBT, or Portable Breath Test (hereinafter "PBT") which was unsuccessful because it was not functioning properly. The Defendant was then sent back to his car to wait for another officer to bring a replacement test. Officer Cassidy then asked the Defendant about his DUI history and subsequently took him into custody, prior to the other PBT test arriving.
STANDARD OF REVIEW
When presented with a motion to suppress, Delaware courts have repeatedly stated that the Defendant bears the burden of establishing that the challenged search and seizure violated his rights under the United States Constitution, the Delaware Constitution, or the Delaware Code. The Defendant must demonstrate, by a preponderance of the evidence, that he is entitled to the relief requested. At a suppression hearing, the trial judge sits as the trier of fact, and determines the credibility of witnesses.
The Defendant alleges that the arresting officer lacked the probable cause and/or reasonable suspicion required to pull the Defendant over due to any motor vehicle violation. The Defendant also alleges that the arresting officer lacked the probable cause and/or reasonable suspicion to believe the Defendant was operating his vehicle while under the influence of alcohol and/or drugs. The Defendant alleges that officer violated the Defendant's Constitutional rights under the 4th and 14thAmendments (based on lack of ...