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State v. Ortez-Olivia

Superior Court of Delaware

November 8, 2018


          Date Submitted: October 5, 2018

         On Defendant Rony Ortez-Olivia's Motion to Suppress. DENIED.

          Colleen E. Durkin, Esquire, Deputy Attorney General, Attorney for the State.

          James M. Stiller, Jr, Esquire, Schwartz & Schwartz, Attorney for Defendant.



         Findings of Fact

         In the 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.

         In the 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.

         Upon 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.

         After 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.

         It 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.

         Trooper 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.

         Trooper 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.

         Trooper 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.

         Trooper 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 ...

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