Submitted: February 7, 2018
Jillian Schroeder, Esquire, Delaware Department of Justice
Attorney for the State of Delaware.
JJ. Facciolo, Esquire, Minister & Facciolo LLC, Attorney
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S
MOTION TO SUPPRESS
J. SMALLS, CHIEF JUDGE.
AND PROCEDURAL HISTORY
April 29, 2017, Jeffrey Peterson ("Defendant") was
arrested for the offenses of Driving a Vehicle Under the
Influence of Alcohol, (DUI), in violation of 21 Del.
C. §4177; Driving Vehicle at Unreasonable Speed or
Imprudent Speed, in violation of 21 Del. C.
§4168(a); and Operating a Vehicle with Improper Window
Tint, in violation of 21 Del. C. §4313(c). The
facts which gave rise to these proceedings indicate Defendant
was driving on Naamans Road when Cpl. Andrew Pietlock
("Pietlock") of the Delaware State Police pulled
him over for allegedly speeding. Upon approaching
Defendant's vehicle, Piedock detected a moderate odor of
alcohol and instructed Defendant to exit the vehicle in order
to conduct field sobriety testing. Subsequentiy, Piedock
arrested Defendant and charged him with the above offenses.
October 24, 2017, Defendant filed this Motion to Suppress
pursuant to Court of Common Pleas Criminal Rule 12(b), to
exclude field sobriety and breath test results. Defendant
argues Piedock should not have administered the one leg stand
field sobriety test due to steel strut implants in his leg.
Defendant avers the implants caused him to sway during the
test and he explained to Piedock that he was incapable of
performing the test properly. Furthermore, Defendant alleges
the test was administered on a wet, uphill surface where
severe fog was beginning to accumulate.
February 7, 2018, a hearing was held on Defendant's
Motion to Suppress. During the motion hearing, Piedock
testified he witnessed Defendant turn onto Naamans Road,
accelerate quickly, and continue traveling at a high rate of
speed. Piedock followed Defendant's vehicle and testified
he had to reach a speed limit of eighty (80) miles per hour
to catch up to the vehicle. However, the speed recorded on
the Motor Vehicle Recorder (MVR) in the police vehicle
indicated his vehicle only reached a speed of fifty-two (52)
miles per hour, which is just above the fifty (50) mile per
hour speed limit for roads in that
classification. Piedock also testified that once he
initiated his overhead lights, Defendant took longer than
usual to pull over. Upon making contact with the Defendant,
Piedock testified he detected a moderate odor of alcohol
emanating from Defendants' breath and there was another
person in the passenger side of the vehicle. Defendant stated
he consumed a couple beers and some Hennessey earlier that
night. Piedock further testified Defendants eyes appeared
glassy and bloodshot. The other passenger was clearly
intoxicated and his behavior was erratic as detected by the
instructed Defendant to exit his vehicle to perform field
sobriety tests. There was a discussion regarding
Defendant's ability to perform the field tests. Defendant
told Piedock he had a fracture to his left leg and he was
being treated for the injury. Pietlock testified that
Defendant advised him he could not perform the walk and turn
test but, voluntarily performed the balance test.
this information, Pietlock administered the tests. He first
administered the balance test where he instructed the
Defendant to lift his injured leg six (6) inches off the
ground for thirty (30) seconds. Piedock testified that
Defendant failed the one leg test by dropping his foot at
seventeen (17) seconds and his arms moved away from his body.
Thereafter, Pietlock attempted to administer the walk and
turn test. This test was interrupted by the actions of the
Piedock administered the finger dexterity test in which he
testified Defendant failed by not touching his fingertips.
Ultimately, Defendant was given a Portable Breath Test (PBT),
which Piedock testified he failed as well. Based upon these
test results, Piedock opined that Defendant was under the
influence of alcohol and placed him into custody. During
cross-examination, Defense counsel questioned Piedock
regarding the incline and fog conditions in the area where
the field sobriety tests were administered.
Defense called Lynda Rae Kopishke, ("Kopishke") a
Forensic Nurse, to testify on behalf of the Defendant in
regards to his medical conditions. As a part of her testimony,
Kopishke referred to the medical records of Defendant which
included an assessment of his injuries. Kopishke referred
to the billing records in order to assess the amount of
surgeries he received. The Christiana Care Health Services
report indicates the nature and extent of surgeries and types
of hardware that were implanted in Defendant's leg.
Kopishke testified this report indicates what is to be
expected in terms of future disability. Kopishke also
referred to the Abbington Jefferson Health document which
indicated Defendant was treated for Speech Therapy from
August 2004 through October 2005. Furthermore, Kopishke relied
on an article from the American Academy of Orthopedic
Surgeons to assess the nature of Defendant's
injuries. Kopishke also reviewed the MVR in
preparation for her testimony.
report written by Kopishke opines that due to Defendant's
physical challenges, Piedock inadvertendy set Defendant up
for a probable failure of the standardi2ed field sobriety
tests. The report states on April 29,
2015, Defendant underwent surgery on his left foot to repair
his metatarsal bone in which a pin and a screw was internally
placed in his foot. Subsequendy, Defendant was instructed to
use an orthowedge shoe and no weight bearing on his left
foot. The anticipated recovery time was six (6) to eight (8)
weeks, including physical therapy.
report further indicates that Defendant still wears a knee
brace for support, uses ice for swelling, and takes Ibuprofen
for pain. In addition, Defendant continues to experience pain
in his left lower leg and was evaluated by an orthopedic
surgeon. The medical documents submitted indicate Defendant
was suffering from a chronic stress fracture of the tibia and
surgery was scheduled for June 3, 2016 to implant an
intramedullary nail fixation (rod and screws).
testified that Defendant walks with a wider base due to his
injuries and has a slight limp in his left leg. Kopishke
further testified that anytime a person is subject to
non-weight bearing on one leg for almost three (3) years,
they will try to compensate on the other leg, causing balance
issues. Kopishke testified it would be difficult for
Defendant to exit the driver's side of a vehicle because
he would want to place weight on his right leg. Kopishke
observed on the MVR that when Defendant exited the vehicle
and was standing talking to the Officer, he was
weight-bearing on his right side. Kopishke stated Defendant
continues to have balance issues and when asked to balance on
one leg, Defendant will have to place his leg down sooner
than someone who did not have leg surgeries or implants.
Kopishke set forth in her report that at the time of
Defendant's arrest, he was dealing with multiple medical
problems, including speech challenges. Under stress,
Defendant would need additional time to formulate words and
would seem less articulate. Kopishke testified that this was
evident in the MVR, which is reflected in the counting test
when Defendant counted slower in order to inhibit stuttering.