Submitted: March 9, 2017
Towne, Esquire Deputy Attorney General Attorney for the State
Gregory Johnson, Esquire Attorney for Defendant
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S
MOTION TO SUPPRESS
C. Danberg, Judge
defendant, Nailah Grinnage (hereinafter the
"Defendant"), brings this motion to suppress
evidence in connection with a Driving Under the Influence
("DUI") investigation. The Defendant raised three
grounds for suppression: the arresting officer lacked
probable cause; the officer used two different timepieces to
establish the twenty-minute observation period for the
intoxilyzer test; and the presence of retainer devices in the
Defendant's mouth invalidated the intoxilyzer test. On
January 31, 2017, a hearing was convened on the matter, with
the balance of the testimony heard on March 9, 2017.
Following the hearing, the Court reserved decision. This is
the Final Decision of the Court on the Defendant's Motion
AND PROCEDURAL HISTORY
hearing on January 31, 2017, and at the continuation of the
hearing on March 9, 2017, the Court heard testimony from
three witnesses: Cynthia McCarthy, a forensic chemist with
the Delaware State Police; Master Corporal Anita McCloskey
(hereinafter "Trooper McCloskey"), a police officer
with the Delaware State Police, Troop 2; and the Defendant.
Based upon the testimony of the witnesses, the Court finds
the relevant facts as follows.
October 31, 2016, at approximately 11:55 p.m., Trooper
McCloskey was dispatched to the scene of a minor accident.
The accident occurred in the parking lot outside of the On
the Rocks bar on Old Baltimore Pike in Newark, when the
Defendant allegedly struck the side of another vehicle while
pulling out of a parking spot. When Trooper McCloskey
arrived, both of the vehicles were in parking spots, and the
Defendant was engaged in a loud telephone conversation.
approaching the Defendant, Trooper McCloskey asked what had
happened. The Defendant admitted she was at the On the Rocks
bar and had struck the other vehicle while pulling out of the
parking spot. Trooper McCloskey detected a faint to moderate
odor of alcohol and glassy eyes, while also noticing the
Defendant had difficulty producing her license. When asked
whether she had anything to drink, the Defendant reportedly
stated she had consumed an Absolut and vodka, which - based
upon the Defendant's gestures - Trooper McCloskey
estimated to be approximately sixteen ounces. Throughout the
encounter, the Defendant was combative, agitated, and loud.
The Defendant accused the driver of the other vehicle of
committing fraud and accused the On the Rocks bar of setting
the Defendant up. During this time, the Defendant also stated
she, the Defendant, was drunk.
McCloskey proceeded to conduct the alphabet test, asking the
Defendant to recite the alphabet from E to V. The Defendant
completed this test with only minor slurring. Moving to the
counting test, Trooper McCloskey instructed the Defendant to
count backward from 47 to 30. The Defendant counted from 47
to 41, paused, counted 40 and 39, repeated some numbers, went
to 26, and then mumbled down to 22.
Trooper McCloskey conducted the Walk and Turn test. According
to Trooper McCloskey, the Defendant demonstrated two of a
possible eight clues. On the One Leg Stand test, the
Defendant demonstrated three of four possible clues. While
describing the nature of the test and the clues, Trooper
McCloskey stated the One Leg Stand test consists of three
distinct ten-second periods, with a possibility of four clues
per period; accordingly, Trooper McCloskey counted the same
clue three times.
the field sobriety tests,  Trooper McCloskey placed the Defendant
under arrest and transported her to Troop 2. Trooper
McCloskey began the observation period at 12:44 a.m. on
November 1, 2017, with the time provided by Trooper
McCloskey's wristwatch. The observation period ended at
1:12 a.m., with the time provided by the intoxilyzer machine.
Trooper McCloskey admitted she did not know whether her watch
was calibrated. Prior to taking the breath test, the
Defendant stated she had retainer devices in her
mouth. The Defendant was ultimately charged with
driving under the influence.
Defendant raises three grounds for suppression. First, the
Defendant argues all evidence following the arrest must be
suppressed for lack of probable cause. Second, the Defendant
argues the State failed to prove the requisite twenty-minute
observation period before administering the intoxilyzer test.
Specifically, the Defendant argues the use of two timepieces,
without confirming the synchronicity of the two and without
verifying the calibration of the wristwatch, renders it
impossible to determine whether the observation period lasted
for twenty minutes. Third and finally, the Defendant argues
the presence of retainer devices invalidates the intoxilyzer
test. The Defendant points to both NHTSA ...