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State v. Anderson

Court of Common Pleas of Delaware, New Castle

July 2, 2018


          Submitted: May 21, 2018

          William Raisis, Esquire, Deputy Attorney General Attorney for the State of Delaware

          Benjamin S. Gifford IV, Esquire Attorney At Law Attorney for Defendant


          Alex J. Smalls, Chief Judge


         The Defendant Brittany A. Anderson (hereinafter "Defendant"), was arrested on November 28, 2016, and charged with Driving Under the Influence ("DUI"), in violation of 21 Del. C. §4177, Failure to Remain Within a Single Lane, in violation of 21 Del. C. §4122(1), and Possession of Marijuana, in violation of 16 Del. C. § 4764(c). On May 4, 2017, as a sanction for the State's failure to provide discovery as required by Court of Common Pleas Criminal Rule 16, as ordered by the Court, I granted Defendant's motion to exclude all evidence related to Defendant's blood draw and the chemical analysis of Defendant's blood. On May 11, 2017, Defendant filed a motion for reargument of the Court decision denying his motion to exclude . all evidence which was denied.[1] Trial was scheduled for May 21, 2018. At trial, the Court heard testimony, reviewed the Motor Vehicle Recorder ("MVR") and all other evidence admitted. The case was taken under advisement for the Court to consider both the issue of probable cause and whether when all the evidence was considered, it proved the offenses beyond a reasonable doubt.

         Delaware State Trooper McKenna ("McKenna") testified that on November 28, 2016, he was the first responder to a 911 call involving an accident where a vehicle had gone off the main road and was stopped in the backyard of a residence. McKenna testified that the vehicle had hit some "boulders" or "large rocks" located in the residence's front yard which damaged the vehicle. McKenna further testified when he arrived on scene, Defendant was outside of the vehicle crying and confused regarding her location. In addition, McKenna testified he detected an odor of alcohol emitting from Defendant.

         On cross examination, McKenna testified that there were no photos taken of the accident. Furthermore, McKenna prepared his police report as an accident report and there was no language regarding the alcohol odor in said report. McKenna further testified he had not seen Defendant driving the vehicle and since he believed this to be a DUI investigation, he called another Trooper to assist with the investigation.

         Delaware State Trooper Kirchenbauer ("Kirchenbauer") arrived on scene and saw McKenna and Defendant standing outside of a vehicle. Kirchenbauer testified he immediately smelled an odor of alcohol and marijuana and there was a clear plastic cup outside of the vehicle and a second cup in the center console, which contained brown liquid inside. Kirchenbauer further testified that Defendant admitted to driving but was not sure how the accident occurred. Kirchenbauer testified that Defendant later admitted to drinking a couple beers. Furthermore, Defendant stated she did not know where she was and was crying with makeup running down her face. At that time, Kirchenbauer asked Defendant to perform field sobriety tests.

         During the Horizontal Gaze Nystagmus ("HGN") test, Kirchenbauer testified that Defendant had difficulty with her eyes following the pen without moving her head and prior to beginning the test, Defendant stuck out her tongue.[2] The State introduced the Motor Vehicle Recorder ("MVR")[3] and pointed out that Defendant was swaying back and forth during the HGN test. The second field test administered was the walk and turn test. Kirchenbauer testified that during the test Defendant exceeded the amount of steps she was instructed to take and failed to place her feet "heel to toe." The MVR failed to show how Defendant placed her steps. The third and final test was the balance test. During the balance test, Defendant was unable to keep her leg in the air for the required time allocated. The MVR showed Defendant struggling to keep her foot in the air and she stated to the Trooper, "I am really trying." Ultimately, Defendant was placed under arrest for DUI. While placed in the back seat of the police car Defendant was asked her age which she quickly responded nineteen (19), and then laughed and stated, "I mean, twenty-one (21)."

         On cross examination, Kirchenbauer testified that there were no photos taken of the accident and the alleged cups seen near and in Defendant's vehicle were thrown away. Furthermore, Kirchenbauer testified that Defendant's bloodshot, glassy, and watery eyes could have been caused by crying. During cross examination, defense counsel asked Kirchenbauer if he was aware that his vehicle headlights created a huge shadow that could have distracted Defendant during the walk and turn test. Defense counsel also asked Kirchenbauer if he was aware of the National Highway Traffic Safety Administration ("NHTSA") regulations that the officer should stay as still as possible so not to distract the Defendant. In addition, defense counsel pointed out on the MVR that Kirchenbauer failed to instruct Defendant to look at her feet during the walk and turn test; he only told her to look down at his feet during the instructions. Defense also questioned Kirchenbauer about the alleged accident and if he had inquired about any injuries Defendant may have sustained. Lastly, defense counsel inquired and stated to Kirchenbauer that this was a cold November night where Defendant seemed to be shivering when observed on the MVR and if this could affect her ability to balance on one leg.


         To establish probable cause 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."[4] This totality consideration is based on "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."[5] "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."'[6]

         Probable cause to arrest for DUI rests upon the observations of the arresting officer, which includes the driver's performance on field sobriety tests.[7] In order to determine if field tests are reliable, the Court must decide if the field tests were administered in accordance with the NHTSA standards.[8] When field tests are not administered as required by NHTSA guidelines, the reliability of such tests are subject to question when determining probable cause.[9] The facts as ...

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