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State v. Rothenberg

Superior Court of Delaware, Kent

May 22, 2017

STATE OF DELAWARE,
v.
IRVIN C. ROTHENBERG, Defendant.

          Submitted: May 16, 2017

         Upon Defendant's Motion to Suppress. Denied.

          Dennis Kelleher, Esquire, Department of Justice, Dover, Delaware; attorney for the State of Delaware.

          James M. Stiller, Jr., Esquire of Schwartz & Schwartz, Dover, Delaware; attorney for the Defendant.

          ORDER

          Hon. William L. Witham, Jr. Resident Judge.

         Before 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.

         The 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.

         FACTS

         Mr. 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.

         While 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.[1] 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.

         Initially, 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[2] and that he was slurring his words. Mr. Rothenberg said he was coming from Dover Downs and had one drink while there.

         The 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.

         The 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.

         The 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 tests.

         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 to drinking.

         After 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.

         Mr. 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.

         THE ...


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