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State v. Oseguera-Avila

Superior Court of Delaware

November 2, 2018

THE STATE OF DELAWARE,
v.
FIDEL OSEGUERA-AVILA, Defendant.

          Submitted: August 16, 2018

         Upon Consideration of Defendant's Motion to Suppress - DENIED.

          Abolore J. Oshodi, Esquire, Deputy Attorney General, Delaware Department of Justice, Attorney for the State of Delaware.

          James M. Stiller, Jr., Esquire, Attorney for the Defendant.

          OPINION

          DIANE CLARKE STREETT, JUDGE

         Introduction

         Fidel Oseguera-Avila ("Defendant"), who was arrested for Driving Under the Influence, moves to suppress "all evidence of wrong doing;[1] or in the alternative, the results of the Horizontal Gaze Nystagmus Test ("HGN"), Vertical Gaze Nystagmus Test ("VGN"), Walk and Turn Test, One-legged Stand Test, and Intoxilyzer Test.[2]He contends that the field sobriety tests were not administered in accordance with the standardized guidelines of the National Highway Traffic and Safety Administration ("NHTSA") and, as such, the trooper was without probable cause to take Defendant into custody or administer the Intoxilyzer test on him.

         The State responds that the results of the HGN and Walk and Turn tests are admissible and that there was probable cause, even excluding the field sobriety tests, to arrest Defendant and to perform the Intoxilyzer test on him.[3]

         The Court denies Defendant's Motion to Suppress.[4]

         Factual and Procedural History

         On May 6, 2018, at approximately 2:09 a.m., Trooper Alyssa Santangelo ("Trooper Santangelo") of the Delaware State Police was travelling north on Basin Road. There are two left turn lanes at the intersection of East Commons Boulevard. Trooper Santangelo entered the far left turn lane and observed Defendant in the other left turn lane (to the right of Trooper Santangelo). Defendant was stopped at a green light with his right turn signal on. When the light turned red, Defendant, with his right turn signal still on, turned left in front of Trooper Santangelo. Defendant then drove the wrong way down a one-way road. Trooper Santangelo followed Defendant's car, turned on her emergency lights, and pulled Defendant over. Defendant stopped directly in front of a do-not-enter sign.

         Trooper Santangelo approached the open passenger side window[5] and smelled a strong odor of alcohol coming from the vehicle at a distance of approximately five feet. Defendant was the operator of the vehicle.[6] Trooper Santangelo testified that Defendant admitted to having had one beer. Trooper Santangelo observed that Defendant had a strong odor of alcohol; dazed, glassy, dilated, and watery eyes; and that he hesitated when answering questions. Trooper Santangelo asked Defendant to exit the vehicle. Defendant complied and put his hands on the vehicle.

         Trooper Santangelo next asked Defendant if he would consent to perform field sobriety tests. Defendant responded that he would do anything she wanted. Trooper Santangelo then administered the HGN, VGN, Walk and Turn, and One-legged Stand tests on Defendant. Trooper Santangelo completed the HGN test in 82 seconds. Trooper Santangelo testified that she observed all six HGN test clues for impairment. The HGN test was immediately followed by the VGN test in 13 seconds.[7] Trooper Santangelo then explained and demonstrated the Walk and Turn test to Defendant.[8] Trooper Santangelo testified that Defendant exhibited six clues that showed impairment during the Walk and Turn test. Trooper Santangelo then explained the One-legged Stand test to Defendant. Trooper Santangelo gave Defendant multiple opportunities to perform the test and Defendant attempted to perform the test but could not. Defendant appeared to be confused, had trouble keeping his balance, at first could not lift his foot off the ground, eventually lifted it off the ground for two seconds and put it back down, stated that he was 50 years old but gave no indication of a physical injury or disability, and stated that he was hot.

         A suppression hearing was held on October 26, 2018. Trooper Santangelo was the only witness. In addition to testifying to the above events, Trooper Santangelo testified that she formed the opinion that Defendant was impaired because he committed multiple traffic violations; had a strong odor of alcohol; and had dazed, watery, and dilated eyes. Also, his face was flushed and he had slurred speech, trouble keeping his balance, was confused, and failed the field sobriety tests.

         Trooper Santangelo then arrested Defendant for Driving Under the Influence of Alcohol and transported him to Troop 2 where she administered the Intoxilyzer test on him.[9] The Intoxilyzer test results showed a BAC reading of 0.142%.

         Parties Contentions

         Defendant contends that the results of the field sobriety tests ("the Tests") should be suppressed because the tests were not administered in accordance with NHTSA guidelines.[10] Defendant posits that there was insufficient evidence to arrest Defendant and to administer the Intoxilyzer test on him because the results of the field tests were improperly administered. As such, Defendant asserts that the results of the Intoxilyzer test should be suppressed.

         Specifically, Defendant claims that the HGN test was not administered correctly because Trooper Santangelo "never asked Defendant about eye problems or eye abnormalities" and she administered the HGN in approximately 80 seconds when "the HGN cannot be administered in less than 96 seconds."[11] Defendant asserts that the VGN test results are not valid because Trooper Santangelo "did not hold the stimulus in a maximum elevated position for at least four seconds as required by NHTSA."[12] ;

         Defendant claims that the Walk and Turn test also was not correctly administered because Trooper Santangelo "never asked Defendant whether or not he had any physical problems or disability" and "never instructed Defendant not to start the test until he was told to do so - [both] NHTS A requirement[]."[13]

         Lastly, Defendant argues that the One-legged Stand test was not administered correctly because Trooper Santangelo never asked Defendant if he had any physical problems or disabilities, did not instruct Defendant to hold his foot six inches off the ground, did not instruct Defendant to hold his foot parallel with the ground, and did not instruct Defendant to keep his eyes on his foot - as outlined by NHTSA.

         The State responds that the results of the HGN test and the Walk and Turn test should not be suppressed.[14] The State argues that the HGN test was administered in accordance with NHTSA. It points out that "as reflected in the motor vehicle recording (MVR), Tpr. Sanatangelo [sic] asks Defendant if he wears contacts or has eye problems prior to beginning the Nystagmus tests."[15] The State further explains that the NHTSA manual does not provide an exact 96 second requirement.[16]

         The State also argues that although the trooper did not ask Defendant whether he had any physical problems or disabilities prior to administering the Walk and Turn test, the Delaware Superior Court has held that such an omission does not invalidate the test. Citing State v. Hudgins, [17] the State writes that the Delaware Superior Court did not disqualify similar field tests even though the police failed to ask whether the defendant had a physical injury. The Court stated that:

[A]lthough Defense raises the issue of the Officer's failure to ask Defendant if he had any disabilities that would preclude him from successfully completing the test, the Defense is not asserting that the Defendant actually had any disability, nor any reason to improperly perform. . . . Here, the Court does not find that any deficiency in the testing of the Defendant is enough to disqualify the tests entirely.[18]

         As to the claim that Trooper Santangelo failed to notify Defendant to wait until instructed before attempting the Walk and Turn test, the State explains that Trooper Santangelo is seen and heard on the MVR "instructing Defendant to remain stationary as she explains and demonstrates how to complete the test."[19] The State then notes that "[a]fter asking Defendant if he understood her instructions, Trooper Santangelo then switches positions with Defendant and instructs him to begin the test."[20] Thus, the State argues, "[t]here is no question that Defendant clearly understood Trooper's instruction to wait to begin the test, he did not begin prematurely, and he exhibited 6 clues [of impairment] after he began the test, none of which were related to when he began the test."[21]

         Lastly, the State contends that, even without considering the results of the field tests, there was ample evidence for "probable cause to arrest Defendant and to believe that further evidence of DUI would be detected by an Intoxilyzer Test."[22] The State cites Bease v. State[23] to support its claim that there was probable cause to arrest Defendant on evidence other than that obtained through the field sobriety tests. In Bease v. State, the Delaware Supreme Court found probable cause to arrest the defendant where he "spoke in a rapid manner ..., smelled of alcohol, admitted that he consumed alcoholic beverages the night before, had bloodshot and glassy eyes, and had just committed a traffic violation by making an improper lane change in an abrupt manner."[24] The State argues that the facts in the instant case are similar to those in Bease v. State.

         Standard of Review

         On a motion to suppress, the defendant bears the burden of establishing that the challenged search or seizure violated his rights under the United States Constitution, the Delaware Constitution, or the Delaware Code.[25] If the defendant establishes a basis for the motion, the State must then prove, by a preponderance of the evidence, that "the challenged search or seizure comported with the rights guaranteed by the United States Constitution, the Delaware Constitution, and Delaware statutory law."[26] As the trier of fact at a suppression hearing, the Court determines the credibility of the witnesses.[27]

         Discussion

         For the following reasons, the Court denies Defendant's Motion to Suppress the results of the HGN, Walk and Turn, and Intoxylizer tests even though the Court finds that the results of the VGN and One-legged Stand tests were improperly administered.

         As to the HGN test, Defendant first contends that the HGN test was incorrectly administered because the trooper did not ask "Defendant about eye problems or eye abnormalities."[28] Defendant asserts that this question is "a NHTSA requirement."[29]Here, the trooper can be heard on the MVR asking Defendant "do you have any... um ... contacts or anything, any like eye issues, anything like that?"[30] An inquiry concerning "eye issues" encompasses eye problems or abnormalities. Furthermore, there is nothing in the record supporting an argument that the manual states that exact language is required.

         Defendant also argues that the HGN test was invalid because the entire test must not be conducted in less than 96 seconds. Although the manual does not state how long the entire HGN test should take, the Defense claims that the sum of the individual time measurements provided in the instructions for each of the four sequences of the HGN test (Equal Tracking, Smooth Pursuit, Distinct and Sustained Nystagmus at Maximum Deviation, and Onset of Nystagmus Prior to 45 Degrees) must be at least 96 seconds.

         However, a thorough and accurate reading of the NHTSA instructions shows that there is no standard minimum time limit. Indeed, three of the four sequences reference approximate time measurements.[31] As such, when the word "approximately"[32] is used to qualify several time measurements in the instructions for different phases of the HGN test, it is not possible to establish a strict minimum time for ...


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