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State v. Peterson

Court of Common Pleas of Delaware, New Castle

April 16, 2018


          Submitted: February 7, 2018

          Jillian Schroeder, Esquire, Delaware Department of Justice Attorney for the State of Delaware.

          David JJ. Facciolo, Esquire, Minister & Facciolo LLC, Attorney for Defendant.




         On 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.

         On 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.

         On 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.[1] 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 MVR audio.

         Piedock 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.

         Notwithstanding 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 passenger.

         Subsequendy, 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.

         The Defense called Lynda Rae Kopishke, ("Kopishke") a Forensic Nurse, to testify on behalf of the Defendant in regards to his medical conditions.[2] As a part of her testimony, Kopishke referred to the medical records of Defendant which included an assessment of his injuries.[3] 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.[4] Furthermore, Kopishke relied on an article from the American Academy of Orthopedic Surgeons to assess the nature of Defendant's injuries.[5] Kopishke also reviewed the MVR in preparation for her testimony.

         A 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.[6] 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.

         The 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).[7]

         Kopishke 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.

         Furthermore, 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. Kopishke's ...

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