Submitted: October 5, 2018
Defendant Rony Ortez-Olivia's Motion to Suppress. DENIED.
Colleen E. Durkin, Esquire, Deputy Attorney General, Attorney
for the State.
M. Stiller, Jr, Esquire, Schwartz & Schwartz, Attorney
L. SCOTT, JR. JUDGE
early morning hours of February 1, 2018 Trooper Gumbs
received a call to respond to a suspicious vehicle. Trooper
Gumbs was at the Delaware State Police Troop 9 barracks in
Odessa at the time, and the location of the call was
approximately one quarter of a mile away. Trooper Gumbs
arrived to the scene of the suspicious vehicle a short time
later. Trooper Gumbs upon arrival discovered a white utility
or work van stationary in the left hand turning lane of the
southbound travel lanes of Route 13. The van was running and
pointed in a northbound direction.
location where the vehicle was found, the north and
southbound lanes of the highway do not run directly parallel
to one another, and are separated by some distance. The van
was discovered in the left hand turn lane which would
customarily be used by southbound traffic to access the
Sunoco gas station that exists between the north and
southbound lanes of the highway. In addition to Trooper Gumbs
at least 4 other officers responded to the scene.
inspection Trooper Gumbs noticed the vehicle was occupied.
For his safety Trooper Gumbs approached the vehicle from the
passenger side to minimize danger from oncoming traffic, and
discovered Defendant asleep in the Driver's seat of the
van. Trooper Gumbs attempted to wake Defendant both verbally
and by knocking on the window. After some time, Defendant
woke up, appearing to be shocked and confused, and reached
for the gear selector of the van. Trooper Gumbs opened the
passenger door of the vehicle and removed Defendant's
hand from the selector. Trooper Gumbs noticed an odor of
alcohol inside the vehicle while preventing Defendant from
attempting to shift the vehicle. Another trooper on scene
reached in the vehicle from the driver's side and shut
the vehicle off with the key. Trooper Gumbs stated Defendant
was asked to exit the vehicle and required assistance from
the other trooper on scene to do so.
moving away from the van Trooper Gumbs began a dialogue with
Defendant suspecting he may have been under the influence of
alcohol. Trooper Gumbs inquired as to Defendant's name,
where he was traveling to and from, and if he had consumed
any alcohol. Trooper Gumbs noted Defendant had an odor of
alcohol about his person, and had bloodshot and glassy eyes.
became apparent that Defendant spoke English as a second
language, with an accent. Trooper Gumbs asked Defendant if he
knew his ABCs and if he could recite them starting with the
letter E and continue through P. Defendant stated that he
knew his alphabet, but could not perform the test as
requested by Trooper Gumbs. Defendant stated he could recite
his alphabet in Spanish, enunciating the letters A, B, C as
Ah, Bay, Say.
Gumbs then inquired if Defendant knew his numbers. Defendant
responded affirmatively. Trooper Gumbs requested Defendant to
count backwards from 68 to 53. Defendant began counting and
stopped at 60 stating something about knowing his measuring
tape. After a brief interaction with Gumbs, Defendant
continued to count backwards to 53. Trooper Gumbs stated he
uses this test as an initial indicator to determine if he
should proceed with further field sobriety tests. Gumbs
stated he looks to see if individuals transpose numbers,
pause or otherwise fail to complete the task.
Gumbs then advised Defendant he was going to administer 3
tests; the horizontal gaze nystagmus (HGN), the one leg stand
(OLS), and the walk and turn (WAT) tests. Each of the tests
was described before administering the tests.
Gumbs described the HGN test as a vision test and inquired as
to whether Defendant had any issues with his vision or used
glasses or contacts. Defendant stated he did use corrective
lenses, but was not wearing them at the time. Trooper Gumbs
described the test correctly, and Defendant performed the
test according to the instructions. Trooper Gumbs proceeded
to administer the HGN test and noted 4 clues to indicate
intoxication. Trooper Gumbs administered the test in 72
seconds. The National Highway Traffic Safety Administration
(NHTSA) guidelines do not specify how long the entirety of
the test should take, but specifies time of completion for
individual components. Trooper Gumbs administered the HGN
test more rapidly than specified in the guidelines.
Gumbs then administered the OLS test. In giving instructions
Gumbs asked Defendant to raise whichever leg he chose and
count "One-one-thousand, two-one-thousand,
three-one-thousand..." This method of counting was
repeated twice, and Gumbs asked Defendant to count in this
form "up to thirty." The instructions in the NHTSA
guidelines suggest having an individual count 1001, 1002,
1003, ..., up to 1030. Defendant counted One-thousand,
two-thousand, three-thousand, at reaching ten-thousand
Defendant kept his foot up and expressed confusion with how
to continue counting. After lowering his foot to the ground
Defendant clarified, asking "Can I just go, like, one,
two, three?" to which he was told no. Defendant raised
his leg again and began counting from one-thousand as before.
Trooper Gumbs noted 2 clues during this ...