Submitted: December 8, 2017
Matthew Hicks, Esquire Attorney for the State of Delaware
Andrew
D. Rahaim, Esquire Rahaim & Saints, LLP Attorney for
Defendant
MEMORANDUM OPINIONAND ORDER ON DEFENDANT'S MOTION
TO SUPRESS
ALEX
J. SMALLS, C.J
FACTUAL
AND PROCEDURAL HISTORY
On
October 14, 2016, Tracey Carson ("Defendant") was
arrested for the offenses of Driving While Under the
Influence of Alcohol, (DUI) in violation of 21 Del
C. §4177; Failure to Have Insurance, in violation
of 21 Del. C. §2118(p)(1); and Driving a Motor
Vehicle at a Slow Speed as to Impede the Flow of Traffic in
violation of 21 Del. C. §4171 (b).
The
facts which gave rise to these proceedings indicate Defendant
was driving home from work traveling northbound on Interstate
495 when she was struck from the rear by another vehicle.
Cpl. Cassidy ("Cassidy") from the Delaware State
Police responded to the accident and attempted to make
contact with Defendant. Cassidy stated he smelled a strong
odor of alcohol coming from the Defendant, her eyes were
glossy and blood shot, and her speech was slurred. As a
result of the collision, Defendant was injured to the extent
that she was required to be transported by ambulance to
Christiana Hospital. After clearing the scene of the
accident, Cassidy responded to the hospital to continue his
DUI investigation. At the hospital, Cassidy obtained the
Defendant's blood by requesting her consent to take a
sample which Defendant allegedly responded "okay."
Subsequently, Cassidy had blood drawn by a phlebotomist.
Afterwards, Cassidy arrested Defendant and charged her with
the above offenses.
On
April 11, 2017, Defendant filed a Motion to Suppress.
Defendant seeks to suppress her arrest, detention, and the
blood test evidence on the basis that the police officer
lacked probable cause to arrest, an absence of exigency to
justify an exception to the warrant requirement in which a
warrant was required to draw blood, and any consent by
Defendant was not knowing and voluntary. Defendant avers that
due to the severe injuries she sustained as a result of the
accident, she was unable to fully appreciate the nature of
Cassidy's questioning, thus, it was impossible for her to
make an informed consent, and voluntarily give such consent
for Cassidy to take her blood.
On
September 28, 2017, a hearing was held on Defendant's
Motion to Suppress. During the Motion hearing, Cassidy
testified on October 14, 2016, he was dispatched to an
accident on Interstate 495 where both vehicles had sustained
serious damage. Cassidy testified when he attempted to make
contact with Defendant she was seated in the driver's
seat of the vehicle that had been struck from the rear. He
further testified that Defendant was extremely upset and
crying. Defendant's responses to Cassidy's questions
were difficult to comprehend and she repeatedly stated that
"she was having a bad day." Cassidy testified he
detected an odor of alcohol coming from the Defendant and her
eyes appeared glossy and blood shot. Cassidy further
testified that Defendant told him she works as a bartender
and was coming from work. In addition, Cassidy testified it
was his opinion that Defendant was under the influence of
alcohol. He further testified he did not administer the
standard field sobriety tests on Defendant due to her
injuries and the dangerous area of Interstate 495.
At the
scene of the accident, Paramedics placed Defendant in a neck
and back brace and transported her to Christiana Hospital
Emergency Room. Cassidy went to the hospital and was again
unable to conduct any meaningful conversation with the
Defendant. Cassidy testified he asked Defendant for her
consent to draw blood to which she replied "what
for?" Cassidy responded to Defendant, "to check if
there is alcohol and or drugs in your system." Defendant
alleges that after Cassidy told her the blood draw was for
the purpose of a DUI investigation, she did not respond
further. The State's reply brief argues Cassidy told the
Defendant the blood draw was "to check for drugs and
alcohol" and the Defendant then responded
"okay."
During
cross-examination, Cassidy testified he did not attempt to
remove Defendant from the vehicle due to the severe damage to
the car and the visible injuries to Defendant's face.
Cassidy further testified it was clear to him that Defendant
was severely injured. Defendant's counsel asked Cassidy
if he was aware that Defendant bit a hole through her mouth
during the accident and asked Cassidy how he makes the
distinction between an alcohol slurred speech and a
person's inability to speak due to severe injuries to the
mouth and face.
Cassidy
testified that his conversation with Defendant at the
hospital was very brief and he did not take any notes.
Accordingly, Defendant argues that Cassidy was required to
document the alleged consent from Defendant to withdraw her
blood using a standard consent form. Cassidy testified he is
unaware of a standard form used by the Delaware State Police
that document consent to blood withdraws. Defendants Opening
Brief cites Cassidy's police report stating
"operator agreed to have her blood drawn."
Defendant asserts that at the time of this alleged consent,
Defendant had been in a severe accident, sustained numerous
injuries, is unable to communicate due to pain, crying, and
also unable to sign her name on hospital documents.
On
redirect, Cassidy testified that upon approaching
Defendant's vehicle, he immediately smelled alcohol and
still smelled alcohol at the hospital. Cassidy testified that
at the hospital, Defendant was conscious, alert and gave
valid consent to withdraw her blood. Cassidy testified that
if Defendant had not consented, he would have obtained a
warrant.
The
defense called Defendant's friend, John Veccione
("Veccione") to testify. Veccione testified he was
shocked at Defendant's appearance at the hospital.
Veccione testified Defendant was unable to talk and she
continued going in and out of consciousness. Her eye was
swollen passed her nose and she was covered in blood.
Veccione further testified he was told by Doctors that
Defendant broke her neck and they were worried because she
kept flaring around the hospital bed. Veccione stated based
on his observation of Defendant in the hospital, he was
afraid she might die. Veccione testified he saw the police
going in and out of Defendant's hospital room but did not
observe any interaction between Cassidy and Defendant.
Veccione testified that Defendant was hospitalized for two
(2) weeks following the accident.
Lastly,
Defendant testified she does not recall talking to Cassidy at
the scene of the accident or at the hospital and only
remembers waking up crying in a hospital room. Defendant
testified her injuries from the accident included a fractured
neck, hip, and ribs crushed pelvis, punctured lung, serious
lacerations to her face and she bit her tongue such that she
was unable to close her mouth to speak and her tongue was
black for three (3) months. Due to the pain from her
injuries, Defendant testified she was unable to remember any
substantive conversation with anyone the night of the
accident. Defendant further testified that every airbag in
her vehicle deployed during the collision. On
cross-examination Defendant testified that she is a bartender
and the night of the accident, she may have had a drink
earlier that day but any odor of alcohol would be from her
tending bar.
At the
conclusion of the Motion Hearing, I concluded the officer had
probable cause to take Defendant into custody. The Court
ordered supplemental briefing on the issue of consent to draw
blood. On October 27, 2017, Defendant filed her Opening
Brief in Support of Defendant's Motion to Suppress
("Defendant's Brief). Successively, on November 21,
2017, the State filed their Brief in Opposition of
Defendant's Motion to Suppress ("States
Reply"). This is the Court's Final Decision and
Order on the Defendant's Motion to Suppress the blood
draw.
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.[1] To satisfy the probable
cause standard for a DUI arrest, the state "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."[2] This totality consideration is based on
'"the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act."'[3] "Law enforcement officers
must demonstrate reasonable articulable suspicion by pointing
to "specific and articulable facts, taken together with
rational inferences from those facts, reasonably warrant the
intrusion."[4] "The Court must examine the totality
of circumstances surrounding the situation as viewed through
the 'eyes of a reasonable trained police officer in the
same manner or similar circumstances, combining the objective
facts with such an officer's subjective interpretation to
those facts' and determine reasonable articulable
suspicion."[5] In reaching its decision, the Court must
analyze the facts based upon what the arresting officer knew
at the time the decision was made to take the Defendant into
custody. These factors here include the Defendant being
involved in a motor vehicle accident, there was a
"strong" odor of alcohol emanating from the
defendant's person, she had glossy eyes, and her speech
was slurred. Therefore, clearly the officer had sufficient
facts to take Defendant into custody.
Where
the State seeks to rely on the alcohol contents of the
Defendant's blood, the State must establish that a
warrant was obtained to draw blood, there were exigent
circumstances causing an exception to the warrant
requirement, or the Defendant voluntarily gave consent for
the blood extraction. The State has the burden to establish
the basis which it relies.[6] The Fourth Amendment of the United
States Constitution and Delaware Constitution protects
individuals against "unreasonable searches and
seizures."[7] The State has the burden to prove by a
preponderance of the evidence, that a warrantless search or
seizure is not in violation of the Fourth
Amendment.[8] "A compelled physical intrusion
beneath the skin to obtain a blood sample for use as evidence
in a criminal investigation is considered a
search."[9] "A warrantless search is deemed
perse unreasonable unless that search falls within a
recognized exception."[10]
One
recognized exception to the warrant requirement is a search
conducted pursuant to a person's voluntary
consent.[11] To be deemed voluntary, consent must be
knowing and intelligent, and may not be the product of
coercion by threat or force.[12] In order to determine whether
a defendant gave consent voluntarily, the Court must examine
"the totality of the circumstances surrounding the
consent" including: (1) the defendant's knowledge of
his constitutional right to refuse to consent; (2) the
defendant's age, intelligence, education, and language
ability; (3) the degree to which the defendant cooperates
with the police officer; and (4) the length of the detention
and the nature of questioning, including the use of physical
punishment ...