Submitted: April 20, 2015
Upon Defendant's Motion to Suppress. Denied.
Gregory R. Babowal, Esquire of the Department of Justice, Dover, Delaware; attorney for the State.
John R. Garey, Esquire of John R. Garey, P.A., Dover, Delaware; attorney for the Defendant.
WILLIAM L. WITHAM, JR, RESIDENT JUDGE.
Upon consideration of the Defendant's Motion to Suppress pursuant to Superior Court Criminal Rule 41(f), the State's Opposition, and the record of this case, it appears that:
1. On September 19, 2014, Titus Hobbs ("Defendant") moved to suppress evidence obtained at the scene of his arrest, and at the police station where he was detained. The Court heard oral argument concerning this motion on April 1, 2015. Following the argument, both the State and Defendant filed supplemental briefs in support of their respective positions concerning Defendant's motion.
2. Corporal Edwin H. Justiniano ("Corporal Justiniano") was dispatched to the Royal Farms on Route 10 in Dover, DE, on the early morning of March 21, 2014. There had been reports of a pickup truck parked near the store, whose occupant was asleep at the wheel. Upon arrival, Corporal Justiniano discovered Defendant in the parking lot, asleep in the front seat of his blue Ford F-150 truck, with the engine running. Attached to the truck was a camper. According to Corporal Justiniano, the door to the Defendant's truck was partially open. Defendant disputes this part of Corporal Justiniano's narrative, claiming that the door was closed. In any event, Corporal Justiniano roused the sleeping Defendant, finding that a strong odor of alcohol emanated from the truck's cabin. Corporal Justiniano further observed Defendant exiting the car with some difficulty, having to hold on to the side of the truck for support.
3. Defendant's behavior and overall demeanor led Corporal Justiniano to believe Defendant was under the influence of alcohol. Upon questioning, Defendant revealed he had been drinking the prior evening. Corporal Justiniano also noted Defendant's mumbled speech. These factors together, prompted Corporal Justiniano to conduct several field sobriety tests to determine Defendant's level of intoxication. Among these tests were: (1)an alphabet test; (2) a counting test; (3) a finger to nose test; (4) a Horizontal Gaze Nystagmus ("HGN") test; and (5) a Portable Breath Test ("PBT"). According to Corporal Justiniano, Defendant failed all five sobriety tests.
4. Following Defendant's deficient performance on the field tests, Corporal Justiniano transported the Defendant to Troop #3 Station. It was there that Defendant's blood was drawn in order to measure his blood alcohol level. The procedure was performed by Hal Blades ("Mr. Blades"), the Delaware State Police Phlebotomist. Although there is some dispute as to the events preceding the drawing of blood, the parties agree that Defendant singed a consent form relating to the procedure. Defendant claims he showed some reluctance to having his blood drawn, but acquiesced as he believed the police would force the procedure on him, if he were to refuse. Both Corporal Justiniano and Defendant, further agree that Defendant was not told he could refuse the test. However, inspection of the executed consent form reveals that the executor acknowledges his right to refuse.
5. Upon filing his motion to suppress the evidence obtained concerning his sobriety on the morning in question, Defendant was represented by prior counsel. At present, and during the oral argument, Defendant is/was represented by new counsel. The Court, therefore, considers solely the arguments put forward by Defendant's counsel during oral argument, as well as in the supplemental briefing. This is, also, the preference intimated by Defendant's current counsel at argument. Given this substitution of counsel in the midst of Defendant's pending motion, the Court will forgo consideration of the tardiness implicated by a motion whose argument was heard over six months from its filing. Moreover, the State points out that even the initial motion's filing was overdue. However, the Court does so in this situation singularly, and at its discretion, purposefully avoiding any precedential treatment of the motion.
6. Defendant's motion to suppress is premised upon the blood test constituting an unreasonable search and seizure, violating the U.S. and Delaware Constitutions. Defendant formulates his argument in two parts: (1) the field sobriety tests did not create probable cause, justifying the blood test; and (2) the consent form was invalid, thereby necessitating the issuance of a warrant, prior to blood being drawn.
7. As regards the first point, Defendant has failed to establish why the results of the field sobriety tests were insufficient to establish the probable cause required to conduct a blood test. Defendant's sole contention is that only the HGN test is certified by the NHTSA. The Court deems this of little consequence. In Delaware, "[p]robable cause to arrest for a DUI offense exists when an officer possesses information which would warrant a reasonable man in believing that [such] a crime ha[s] been committed." "[P]olice 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." Importantly this information or these facts, need not be "sufficient evidence to convict." Where Defendant failed five field sobriety tests– in addition to the equally egregious fact that Defendant was asleep at the wheel of a running car –an officer has established probable cause to investigate further, and order a blood test.
8. The second part of Defendant's argument necessitates consideration of the U.S. Supreme Court's holding in Missouri v. McNeely. In considering a Fourth Amendment unlawful search and seizure argument, the U.S. Supreme Court ruled that probable cause, in and of itself, was not enough to permit the involuntary drawing of a suspect's blood, without a warrant. With respect to the circumstances underlying the case at bar, the drawing of Defendant's blood would be contrary to McNeely and the Fourth Amendment, where it was: (1) involuntary; and (2) done in the absence of a warrant. Although there is no ...