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State v. Durham

Court of Common Pleas of Delaware, New Castle

January 17, 2017


          Erik C. Towne, Esquire Department of Justice, Attorney for the State of Delaware.

          Joe Hurley, Esquire, Attorney for Defendant.



         On November 1, 2016, the Court heard testimony and argument on Defendant's Motion to Suppress (the "Motion") in this case. This is the Court's Decision on the Motion.

         I. Facts

         On March 28, 2015, New Castle County Police Officer Zachery Sherwood ("Officer Sherwood") responded to a single vehicle accident at the intersection of Jaymar Boulevard and Aspen Drive. Officer Sherwood arrived at the scene and observed an unoccupied vehicle wedged between two trees which were growing on the backyard property line in-between two residential homes. A second New Castle County Police Officer then administered field sobriety tests and a Portable Breath Test to Defendant. Based on the testing results and Officer Sherwood's observations, Defendant was placed under arrest and transported to the New Castle County Police Station.

         The parties adamantly dispute the sequence of events that occur after Defendant was transported to the police station. Specifically, the parties disagree on whether Officer Sherwood read Defendant the penalty provision in the Implied Consent and Probable Cause Form ("Implied Consent Form") before Defendant's blood was drawn by a phlebotomist. Officer Sherwood testified that he is unable to recall whether he even read the provision to Defendant.

         According to the initial testimony of Officer Sherwood, Defendant was placed in a holding cell, the officer drafted the search warrant for the blood draw in another room, and the officer did not ask Defendant for a breath sample. After the officer's search warrant was approved, a phlebotomist drew Defendant's blood at the police station. Officer Sherwood placed Defendant back in his holding cell and filled out the necessary paperwork, including the Implied Consent Form. Defendant was released after all the paperwork was completed.

         On Cross-examination, Officer Sherwood acknowledged that while he did not recall asking Defendant to submit to the intoxilyzer. He, however, stood by his police report and conceded that he placed Defendant in the intoxilyzer room and requested Defendant to provide a breath sample, which Defendant refused.

         According to Defendant, Officer Sherwood brought him back to the police station and asked him to consent to the intoxilyzer test, which Defendant refused. Officer Sherwood then read Defendant the penalty provision of the Implied Consent Form, yet Defendant still refused. The officer then prepared the blood search warrant and submitted it to Justice of the Peace Court 11. Court 11 signed the warrant, at which point a phlebotomist collected Defendant's blood sample at the police station.

         During his testimony at the Motion hearing, Officer Sherwood was unable to recall whether he read the penalty provision to Defendant, and whether he filled out the Implied Consent Form in Defendant's presence. On the Implied Consent Form, however, both the Implied Consent box and Probable Cause box were checked.[1] The Officer also acknowledged that he checked the Implied Consent box because Defendant refused to submit to the "intoxilyzer."

         II. Legal Standard

         On a motion to suppress, the State must establish, by a preponderance of the evidence, that Defendant's arrest was supported by probable cause.[2] To satisfy the probable cause standard for a DUI arrest, police "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."[3] This totality consideration is based on '"the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'"[4] "A probable cause determination may be made based upon 'either the police officer's direct observations or [] hearsay.'"[5]

         III. Discussion

         In this case, the sole basis for Defendant's Motion to Suppress is his contention that Officer Sherwood violated 21 Del. C. § 2742 when the officer read Defendant the penalty provision of the implied consent statute and proceeded with chemical testing, even after Defendant refused testing.

         A. Delaware Implied Consent Statutes

         Each state has enacted a version of the Implied Consent Statutes.[6] Under the Delaware implied consent statutes, if a person "drives, operates, or has in [his] actual physical control a vehicle, " then the driver has implicitly consented to chemical testing.[7] Thus, in a circumstance where such a driver is subject to chemical testing, the officer can inform the driver of the "penalty of revocation for such refusal" prior to having the chemical test performed or he can have chemical testing performed without the driver's consent, provided the officer possesses probable cause and "takes reasonable steps to conduct such chemical testing."[8]

         The language of Section 2742 provides that after being informed of the penalties for refusal, if the driver still refuses chemical testing then the officer cannot proceed with chemical testing.[9] However, the language in Section 2750 of the Delaware Implied Consent Statutes appears to override §2742 for purposes of admissibility in DUI prosecution. Specifically, the language of §2750 provides that even if the officer proceeds to have the driver chemically tested after the driver has been informed and refused, the chemical test results are still admissible in prosecutions for violations of §4177.[10] Hence, a plain reading of §2750 makes it clear that even if the officer administers the chemical test after the penalty provision is read and refused, blood results are admissible, as long as the officer does not violate search and seizure law under the Fourth Amendment.''[11] In other words, the officer must have had probable cause to arrest and cannot use excessive force to collect the sample for chemical testing.[12] Importantly, when an officer conducts an intoxilyzer test, Delaware search and seizure law and the Fourth Amendment require probable cause that the driver was driving under the influence, while a nonconsensual blood draw requires both probable cause and a valid search warrant, or exigency.[13]

         Because §2750 appears to override the bar to the admissibility of test results under §2742 in DUI prosecutions, where §2742 is violated, and there are no Fourth Amendment implications, the Court must address the apparent paradox created by the language in these two sections. The Court thus turns to recent case law for guidance on the intersection of §§ 2742 and 2750.

         B. Key Delaware Precedent Concerning Implied Consent

         In 1991, the Delaware Supreme Court in Seth v. State held that collecting a defendant's breath sample against his consent did not violate the implied consent laws.[14] In Seth, there was disagreement about whether the officer had stated, prior to conducting the intoxilyzer test, '"[a]re you ready to take the test or do you want to go to jail?'"[15] Nevertheless, the parties agreed that the arresting officer failed to read defendant the implied consent law.[16] Defendant argued that the officer was required to read him the implied consent law and that his consent was involuntary because he was threatened with jail-time.[17]

         The Court found that Defendant misunderstood the implied consent statutes, as the 1982 and 1983 amendments removed the 1977 version's requirement that a suspect consent to the chemical tests.[18] Importantly, the Supreme Court noted that the amendments added a new section which would "eliminate any defense to the admissibility of the results of chemical tests based on a failure to inform the accused of the implied consent law, where Fourth ...

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