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State v. Barbas

Court of Common Pleas of Delaware, New Castle

April 5, 2019


          Reserved: February 26, 2019

          Stephen McCloskey Deputy Attorney General Attorney for the State of Delaware

          Joseph Hurley, Esquire Attorney At Law Attorney for Defendant




         On November 18, 2017, Michael T. Barbas (hereinafter "Defendant") was arrested for the offenses of Driving a Vehicle Under the Influence of Alcohol, (DUI), in violation of 21 Del. C. §4177, and Following a Motor Vehicle Too Closely, in violation of 21 Del. C. §4123(a). The facts which gave rise to these proceedings indicate Defendant was operating his motor vehicle in a construction area where traffic was moving at a reduced speed.[1] Defendant rear-ended the vehicle in front of him resulting in police dispatch to the scene.

         On January 29, 2018, Defendant filed a Motion to Suppress all evidence obtained as a result of the above mentioned arrest. Defendant argues the suddenness of the vehicles actions in front of him were such that he was unable to stop because of the unexpected situation. Furthermore, Defendant stated to the police officers he was traveling from his workplace at a country club and had participated in a bourbon tasting .event immediately prior to leaving work. Defendant argues he was coherent, cognitively alert, prompt with his answers to police, had unimpaired speech and answered all questions asked of him. Lastly, there were no balance difficulties noted by the police officer in the manner that the Defendant stood, which is also captured on the Motor Vehicle Recorder, ("MVR").[2]

         On February 26, 2019, the Court held a hearing on Defendant's Motion to Suppress. Delaware State Trooper Owen Cocolin (hereinafter "Cocolin") testified he was dispatched to an accident on Route 141 around 11:00 p.m. where there had been prolonged construction. When Cocolin arrived, Defendant was outside of his vehicle. Cocolin testified he detected a strong odor of alcohol emitting from Defendant's breath, observed that Defendant had red, glassy eyes, and a flushed face. Further, Defendant admitted to participating in a bourbon tasting earlier that evening.

         Based on his observations, Cocolin testified he asked Defendant to complete a Horizontal Gaze Nystagmus Test (HGN). Cocolin testified he received his initial DUI training, which included HGN testing during his police academy in 2012 and also completed a NHTSA Standardized Field Sobriety Testing Refresher/Update Course in 2015.[3] Cocolin testified Defendant failed the HGN test and was unable to complete any further field sobriety tests due to known leg injuries.

         Lastly, Cocolin testified he asked Defendant to participate in a Portable Breath Test (PBT) to which Defendant questioned the procedure and its effects if he refused. This conversation continued with arguments back and forth on the possible outcomes of refusing the PBT. With no reconciliation or accepted answers on either side, Cocolin discontinued his attempt to administer the PBT and placed Defendant under arrest for DUI. Defendant was also issued a citation for following too close.

         Defense counsel cross-examined Cocolin referring to his HGN training and Defendants injuries. Cocolin testified Defendant did not appear to have any balance issues which was prevalent on the MVR.[4] Defendant also stood very still during the HGN test. Lastly, Defendant called three (3) witnesses to testify as to Defendant's injuries. All three (3) witnesses are co-workers of Defendant and testified to his leg and foot injuries stating that Defendant walked with a crutch and a boot during work hours and had issues standing for long periods of time.[5]

         On March 21, 2019, Defendant filed a Memorandum regarding the nature of specialized training required to qualify a police witness as an expert in HGN under D.R.E. 702. Defendant argues the eight (8) hour Refresher Course fails to provide an officer as an expert underlying the scientific basis of the HGN test. Defendant sets forth Montana State case law where police witness must have certain qualifications and credentials to testify as an expert in HGN.[6]


         On a "motion to suppress, the State must establish, by a preponderance of the evidence, that Defendant's arrest was supported by probable cause."[7] 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."[8] This totality consideration is based on "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."[9] "The Court must examine the totality of circumstances surrounding the situation as viewed through the 'eyes of a reasonable ...

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