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State v. Grinnage

Court of Common Pleas of Delaware, New Castle

March 16, 2017

STATE OF DELAWARE,
v.
NAILAH GRINNAGE, Defendant

          Submitted: March 9, 2017

          Erik Towne, Esquire Deputy Attorney General Attorney for the State of Delaware

          Gregory Johnson, Esquire Attorney for Defendant

          MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

          Carl C. Danberg, Judge

         The 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 to Suppress.

         FACTS AND PROCEDURAL HISTORY

         At the 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.

         On 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.

         Upon 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.

         Trooper 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.

         Next, 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.

         Following the field sobriety tests, [1] 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.[2] The Defendant was ultimately charged with driving under the influence.

          PARTIES' CONTENTIONS

         The 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 ...


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