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Altizer v. State

Superior Court of Delaware

January 11, 2017

WENDY S. ALTIZER, Defendant-Below, Appellant
v.
STATE OF DELAWARE, Plaintiff-Below, Appellee.

          Submitted: October 12, 2016

         Upon Appeal from the Court of Common Pleas of the State of Delaware in and for New Castle County Cr. A. Nos. MN 14-10-4136. AFFIRMED, IN PART; DISMISSED, IN PART.

          Ryan Bounds, Deputy Attorney General Tianna Bethune, Deputy Attorney General Joseph A. Hurley, Esquire.

          ORDER

          PAUL R. WALLACE, JUDGE

         This 11 day of January, 2017, upon consideration of the parties' briefs, the parties' oral arguments, the record on appeal, and the record below, it appears to the Court that:

         (1) The Court of Common Pleas denied Appellant Wendy S. Altizer's pretrial motion to suppress evidence derived from an investigation and arrest of her for Driving Under the Influence ("DUI") and other related traffic charges.[1] Following a May 2016 jury trial in the Court of Common Pleas, Altizer was found guilty of DUI and Improper Lane Change.[2] For the DUI conviction (her second), Altizer was sentenced to 18 months imprisonment, suspended after 60 days for a probated term with certain conditions that include payment of a fine and completion of the education and rehabilitation programs required by Delaware's motor vehicle code. For the improper lane change, Altizer received a $25 fine.[3]

         (2) Altizer timely appealed her convictions.[4] The sole remaining issue on Altizer's appeal is the Court of Common Pleas' denial of her suppression motion.[5]

         (3) This Court takes criminal appeals from the Court of Common Pleas.[6] And such appeals are reviewed on the record, not tried de novo.[7] "In fact, this Court functions in the same manner as the Supreme Court, in its position as an intermediate appellate court, when considering an appeal from the Court of Common Pleas."[8]

         (4) Here Altizer argues that the Court of Common Pleas erred when it found probable cause existed for her roadside arrest for DUI. The Court finds that the Court of Common Pleas did not abuse its discretion when it denied Altizer's motion to suppress. And thus, the Court affirms the judgment of the Court of Common Pleas.

         (5) This Court reviews the Court of Common Pleas' denial of a motion to suppress after an evidentiary hearing for abuse of discretion.[9] Whether probable cause exists is a mixed question of fact and law.[10] Findings of fact are reviewed to determine whether there is sufficient evidence in the record to support those findings.[11] And this Court "must adopt [the trial court's] factual findings and [the trial court's] reasonable inferences as long as there is sufficient evidence in the record to support them and the findings are not clearly erroneous.[12] Those "factual findings can be based upon physical evidence, documentary evidence, testimonial evidence, or inferences from those sources jointly or severally."[13] Also, under this deferential clearly erroneous standard of review, "[w]here there are two permissible views of the evidence, the factfmder's choice between them cannot be clearly erroneous."[14] Once the facts and reasonable inferences therefrom are properly established, "the issue is whether an undisputed rule of law is or is not violated."[15] The trial court's formulation and application of legal concepts are reviewed de novo.[16] And so, giving the proper deference to the Court of Common Pleas' factual findings, this Court reviews de novo whether there was probable cause for an arrest, as a matter of law.[17]

         (6) The State's evidence at the proceedings below fairly established the following version of events. In the early morning hours of September 18, 2014, Altizer was on Green Street in Middletown when she slammed her Jeep Grand Cherokee into a vehicle legally parked on the side of that street. The collision was of such force that it drove that other vehicle from its position parallel to a position perpendicular to the curb. Altizer continued down the road until her vehicle became disabled at the intersection of Green and Catherine Streets.[18] Sergeant Raymond Howard of the Middletown Police Department, a well-experienced police officer trained specifically in DUI investigation, arrived at the scene.[19] Sgt. Howard wore a body camera that recorded his roadside interaction with Altizer.[20]

         (7) Altizer was walking away from her disabled vehicle when Sgt. Howard first saw her; he had to call her back.[21] She returned, they began talking, and the sergeant detected a moderate odor of alcohol coming from Altizer's breath.[22] Sgt. Howard noticed also that Altizer's eyes were bloodshot.[23] When asked for her license, registration and insurance information, Altizer gave the sergeant the first two but needed to be reminded of and had difficulty producing the third - at one point, confusing a registration document for it.[24] During this initial interaction, Sgt. Howard had to ask Altizer three separate times how the accident happened. Altizer seemed either to avoid the question or to be too oblivious to answer.[25] When she did, Altizer told the sergeant that she had been in an argument at a friend's place, was upset, and that she was now coming from Lowe's.[26] Sgt. Howard told Altizer that it was about 1:30 a.m. and Lowe's had been closed for hours. Altizer said then that she was coming from Wawa[27]. Sgt. Howard recounted, "she was confused about where she was and what she was doing and performing that night."[28]

         (8) Altizer was twice asked how much she had to drink. Twice she denied drinking at all.[29] When confronted with the fact that Sgt. Howard could smell alcohol on her, Altizer then said "maybe I had a few beers."[30] At this point, Sgt. Howard attempted to begin field sobriety testing with the horizontal gaze nystagmus (HGN) test.[31] Altizer did not perform well on that test. She suddenly became emotional, claimed she was unable to perform the HGN test because she was upset, and refused to perform any more field sobriety testing.[32] Sgt. Howard then placed her under arrest for suspicion of driving under the influence.[33]

         (9) At the police station, Altizer refused to take an Intoxilyzer breath test. So Sgt. Howard sought a seizure warrant to collect a sample of her blood. After the warrant was obtained, Altizer's blood was drawn.[34] The result of her blood test revealed Altizer had a blood alcohol content of .15 grams of alcohol per 100 milliliters of blood - almost twice the legal limit.[35]

         (10) The legal principles involved here are well-established. Probable cause exists when a police officer possesses information which would warrant a reasonable man into believing that a crime has been committed.[36] The wrongdoing at question here is the offense of driving under the influence as defined by Delaware's motor vehicle code. "While under the influence" is defined in Title 21, section 4177(c)(5) to mean that "the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle."[37] The evidence need not establish that the person is "drunk" or "intoxicated."[38]

         (11) Probable cause is measured, not by precise standards, but by the totality of the circumstances through a case-by-case review of '"the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."'[39] In turn, our courts have long-recognized that "[p]robable cause is an elusive concept which avoids precise definition, lying somewhere between suspicion and sufficient evidence to convict."[40] "Probable cause does not require the police to uncover information sufficient to prove a suspect's guilt beyond a reasonable doubt or even to prove that guilt is more likely than not."[41]Rather, probable cause merely requires the State to present facts which are sufficient to show that "there is a fair probability that the defendant has committed a crime."[42] "That hypothetically innocent explanations may exist for facts learned during an investigation does not preclude a finding of probable cause."[43] When determining whether a particular arrest was supported by probable cause, the facts must be viewed under the totality of the circumstances then facing the investigating officer.[44] Under the totality of the circumstances standard, facts are not viewed in isolation to assess the establishment of probable cause.[45] And the totality of the circumstances standard takes into account a police officer's training, experience, observations, investigation, and any rational inferences drawn therefrom.[46] At bottom, "[w]hat is required is that the arresting police officer possess a 'quantum of trustworthy factual information' sufficient to warrant a man of reasonable caution in believing a DUI offense has been committed."[47]

         (12) As a general rule, the burden of proof is on the defendant who seeks to suppress evidence.[48] But once the defendant has established a basis for her motion, i.e., the seizure was conducted without a warrant, the burden shifts to the State to show that the warrantless seizure was reasonable.[49] And the burden the State must carry on such a motion to suppress is proof by a preponderance of the evidence.[50]

         (13) There is no doubt that the Court of Common Pleas understood, properly formulated, and properly applied each of the legal principles explained above when it considered and denied Altizer's motion to suppress.[51]

         (14) Applying the deferential clearly erroneous standard of review, this Court finds no err in the Court of Common Pleas' factual findings that: Altizer inexplicably struck a parked vehicle; smelled of alcohol; had bloodshot eyes; was unresponsive to certain questions about how the accident occurred; did not follow directions properly during the HGN test; and initially denied any drinking until confronted.[52] There is sufficient evidence in the record to support those findings.[53]

         (15) Applying the deferential clearly erroneous standard of review, the record reflects that the Court of Common Pleas, as the trier of fact, was within its discretion to further find as fact or draw as reasonable inferences: that Altizer was "not very responsive" at certain points of her interaction with Sgt. Howard; that she "was foggy and was confused" at other points; that she was "very mixed up about where she was coming from"; that her emotional upset was in response to being asked to perform field sobriety tests; and that her refusal to take those tests was "a consciousness of guilt indicator."[54] Again, there is sufficient evidence in the record to support those findings. And, while Altizer strongly urges other views of the evidence, the Court of Common Pleas' choice of permissible alternatives cannot be clearly erroneous.[55]

         (16) It then becomes this Court's duty is to determine whether these facts along with the reasonable inferences flowing from those facts were sufficient to conclude that there was "a fair probability"[56] that Altizer was driving when "because of alcohol or drugs or a combination of both, [she was] less able than [she] would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of [her] vehicle."[57] Applying the de novo standard of review, this Court concludes that, under the totality of circumstances, the established facts constituted probable cause for Altizer's DUI arrest as a matter of law.[58] The Court of Common Pleas Court properly denied her motion to suppress.

         (17) The Court of Common Pleas' judgment of conviction on the DUI charge is, therefore, AFFIRMED. Because the sentence for the lane change violation does not meet the jurisdiction requirement, the appeal as to that conviction must be DISMISSED without review.[59]

         IT IS SO ORDERED.

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