Submitted: January 5, 2015.
Case Closed February 13, 2015.
Court Below: Superior Court of the State of Delaware in and for New Castle County. ID No. 12909005937.
Patrick J. Collins, Esquire, Wilmington, Delaware, Albert J. Roop, Esquire (argued), Wilmington, Delaware, for Appellant.
Karen V. Sullivan, Esquire (argued), Department of Justice, Wilmington, Delaware, for Appellee.
Before STRINE, Chief Justice, HOLLAND, RIDGELY, VALIHURA, and VAUGHN, Justices.
RIDGELY, Justice, for the Majority:
Defendant-below/Appellant Freddie Flonnory (" Flonnory" ) appeals from a conviction in the Superior Court of felony Driving Under the Influence of Alcohol (" DUI" ), under 21 Del. C. § 4177(a) and (d)(3). Specifically, Flonnory challenges the Superior Court's denial of his motion to suppress the results of a blood draw. Flonnory raises two claims on appeal. First, Flonnory contends that the trial court erred in holding that Delaware's implied consent statute, 21 Del. C. § 2740(a), exempted the blood draw from the Fourth Amendment's warrant requirement. Second, Flonnory contends that there was no voluntary consent, and that the trial court erred when it did not perform a Fourth Amendment
totality of the circumstances analysis to determine whether Flonnory had in fact consented to the blood draw.
By its very nature, a blood draw is an intrusion into the human body that is fundamentally different from a breath sample. The General Assembly has acknowledged that the " normal rules of search and seizure law" apply in this context. And the normal rules require a search warrant for a blood draw absent a recognized exception to the warrant requirement.
When the State relies upon the consent exception to the warrant requirement to admit a chemical test of a blood draw, a Fourth Amendment totality of the circumstances analysis applies. Such an analysis was not applied in this case by the Superior Court. Accordingly, we remand this matter for further proceedings consistent with this Opinion.
I. Facts and Procedural History
On September 8, 2012, Delaware State Police Corporal Andrew Pietlock (" Cpl. Pietlock" ) pulled over Flonnory's automobile after he observed Flonnory twice fail to signal during a turn. Cpl. Pietlock approached the driver's side of Flonnory's vehicle, where he immediately noticed that Flonnory's eyes were glassy and bloodshot. Cpl. Pietlock also observed an open beer bottle in the vehicle, and smelled the odor of alcohol on Flonnory's breath. When Cpl. Pietlock asked Flonnory how much he had to drink that night, Flonnory admitted to having one beer in addition to the beer seen in his vehicle.
Based on his observations, Cpl. Pietlock suspected Flonnory was intoxicated, and administered several field sobriety tests. Flonnory failed the field sobriety tests he was asked to perform. Cpl. Pietlock then requested that Flonnory take a Portable Breath Test (" PBT" ). When Flonnory asked whether he had to take the PBT, Cpl. Pietlock informed Flonnory that he did not have to take " any test," but that if he did not take the PBT, he would be arrested for DUI. Despite being informed of his right to refuse, Flonnory took the PBT. The PBT was administered at 10:02 p.m., at which time the device indicated that Flonnory's blood alcohol concentration was 0.163, over twice the legal limit. Cpl. Pietlock arrested Flonnory for suspicion of DUI.
Flonnory was transported to the police station, where he was advised that a phlebotomist was going to conduct a blood draw. Cpl. Pietlock did not ask Flonnory for permission nor did he request a search warrant for authority to draw Flonnory's blood. At 11:36 p.m., Flonnory's blood
was drawn by the phlebotomist. During the blood draw, Flonnory told the phlebotomist " that's a good vein, don't miss it."  Flonnory's blood was analyzed by the Delaware State Police Crime Lab, which found a blood alcohol concentration of 0.14.
On October 22, 2012, Flonnory was indicted on one count for DUI and one count for Failure to Use Turn Signal. In December 2012, Flonnory filed a motion to suppress the results of the blood draw, claiming that the blood draw violated his rights under the Fourth Amendment. The trial court held a suppression hearing, but reserved its decision pending the United States Supreme Court's decision in Missouri v. McNeely. After McNeely was decided, the trial court determined that McNeely's holding was inapplicable to Delaware's implied consent statute. Accordingly, the trial court denied Flonnory's motion, and found that Flonnory provided consent under Delaware's implied consent statute simply by driving his vehicle. After a two-day jury trial, Flonnory was convicted of DUI. This appeal followed.
A trial court's decision to grant or deny a motion to suppress evidence is reviewed for an abuse of discretion. A trial court's legal decisions are reviewed de novo. " 'To the extent the trial judge's decision is based on factual findings, we review for 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.'" 
The United States and Delaware Constitutions protect the right of persons to be secure from " unreasonable searches and seizures."  Generally, " [s]earches and seizures are per se unreasonable, in the absence of exigent circumstances, unless authorized by a warrant supported by probable cause."  In addition to exigent circumstances, a recognized exception to the warrant requirement is for searches that are conducted pursuant to a valid consent. " Consent may be express or implied, but this waiver of Fourth Amendment rights need not be knowing and intelligent." 
A blood draw is fundamentally different from a breath test because it involves an intrusion into the human body. As the United States Supreme Court explained nearly five decades ago:
Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that inferences to support the search be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
More recently, the Supreme Court has stated that " [s]uch an invasion of bodily integrity implicates an individual's 'most personal and deep-rooted expectations of privacy.'"  This is why a search warrant is required in the absence of exigent circumstances or consent. In order to determine whether consent was given voluntarily, courts examine the totality of the circumstances surrounding the consent, including:
(1) defendant's knowledge of the constitutional right to refuse consent; (2) defendant's age, intelligence, education, and language ability; (3) the degree to which the individual cooperates with police; and (4) the length of detention and the nature of questioning, including ...