Submitted: May 16, 2017
Defendant's Motion to Suppress. Denied.
Kelleher, Esquire, Department of Justice, Dover, Delaware;
attorney for the State of Delaware.
M. Stiller, Jr., Esquire of Schwartz & Schwartz, Dover,
Delaware; attorney for the Defendant.
William L. Witham, Jr. Resident Judge.
the Court are a Motion to Suppress filed by Defendant Irvin
C. Rothenberg and a Response filed by the State. Mr.
Rothenberg is charged with driving a vehicle while under the
influence of alcohol and/or drugs (DUI), in violation of 21
Del. C. § 4177, and failure to yield to a
vehicle in an intersection. Defendant seeks to suppress all
evidence. The parties presented evidence on May 16, 2017.
Court finds that the State met its burden to show that the
agent had a reasonable and articulable suspicion of DUI when
Mr. Rothenberg was arrested. There was probable cause to
support the administration of a portable breathalyzer and
later Intoxilyzer test. Mr. Rothenberg's motion to
suppress is DENIED.
Rothenberg was driving his car westbound on Route 10 in
Dover, Delaware on December 10, 2016, around 4:30 in the
afternoon. He entered the left-turn lane to make a left turn
on Pine Cabin Road.
Mr. Rothenberg was in the left-turn lane heading westbound,
Agent Bonniwell of the Delaware Division of Alcohol and
Tobacco Enforcement was driving eastbound in his patrol
vehicle, not equipped with a motor vehicle recording (MVR)
device. He had a green light and was entering the
intersection with Pine Cabin Road when Mr. Rothenberg began
to execute a left turn across Agent Bonniwell's lane of
traffic. Mr. Rothenberg's left turn caused Agent
Bonniwell to "slam on [his] brakes and swerve to the
left to avoid colliding with" Mr. Rothenberg's car.
Agent Bonniwell was able to see Mr. Rothenberg driving the
car as he executed his turn and continued southbound onto
Pine Cabin Road. Agent Bonniwell made a U-turn and then
followed Mr. Rothenberg until he was able to activate his
emergency lights and stop him on Lemay Lane just south of
Pine Cabin Road.
Mr. Rothenberg tried to get out of his car. Agent Bonniwell
ordered him to remain in the car, and Mr. Rothenberg
complied. When he came up to the car, Agent Bonniwell was
able to smell a "strong odor" of alcohol. He noted
that Mr. Rothenberg's eyes were constricted and that he was
slurring his words. Mr. Rothenberg said he was coming from
Dover Downs and had one drink while there.
agent asked Mr. Rothenberg to complete pre-exit tests. The
first was the Alphabet Test, which Mr. Rothenberg completed
successfully except that he continued listing a letter beyond
those that the agent instructed him to recite. He then
successfully completed the Counting Test. He was unable to
complete the Finger-to-Thumb test despite the agent
demonstrating it to him several times.
agent then asked Mr. Rothenberg to step out of the car to
complete field sobriety tests. Mr. Rothenberg immediately had
difficulty stepping out of the car and steadied himself with
both arms. He maintained his balance by holding onto the car.
When the agent asked him to step away from the car, Mr.
Rothenberg did so slowly and kept his left hand close to the
side of the car.
agent administered the Horizontal Gaze Nystagmus test, which
Mr. Rothenberg completed with his glasses on. Mr. Rothenberg
displayed lack of smooth pursuit, distinct and sustained
nystagmus at maximum deviation, and onset of nystagmus prior
to 45 degrees in both eyes. Mr. Rothenberg did not complete
the walk-and-turn or one-leg-stand test, apparently because
he had a double hip replacement. Nonetheless, he began trying
to walk in a straight line without being told to do so, and
the agent asked him to stop and complete the walk-and-turn
test. Mr. Rothenberg was unable to complete either of the
agent then had Mr. Rothenberg complete the portable
breathalyzer test (PBT) at 4:50 p.m., which resulted in a PBT
of .223. Mr. Rothenberg told the agent that his blood-alcohol
content was "probably going to be high" before he
blew into the PBT. The agent then arrested Mr. Rothenberg and
transported him to Troop 3. Before transporting him, the
agent conducted an inventory search of Mr. Rothenberg's
car and discovered mouthwash, which Mr. Rothenberg admitted
arriving at Troop 3, the agent began a twenty-minute
observation period at 6:15 p.m. and Mr. Rothenberg blew into
the Intoxilyzer at 6:38, yielding a BAC of .207.
Rothenberg was indicted on one charge of driving a vehicle
while under the influence of alcohol and/or drugs, and
another charge of failure to yield. This is the Court's
decision on his Motion to Suppress and the State's
Response in opposition.