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State v. Rizzo

Court of Common Pleas of Delaware, New Castle

April 12, 2019

MARCO RIZZO Defendant.

          Submitted: February 15, 2019

          Anthony J. Hill, Esq. Deputy Attorney General Attorney for the State of Delaware

          Joseph Hurley, Esq. Attorney at Law Attorney for Defendant



         The defendant, Marco Rizzo (hereinafter the "Defendant"), brings this Motion to Suppress and Motion to Strike. Defendant was arrested for Driving Under the Influence ("DUI") and Failure to Remain in a Single Lane for which he now stands trial. Defendant alleges that the warrant affidavit used to obtain Defendant's blood was insufficient to establish probable cause, that the officer administering the Horizontal Gaze Nystagmus ("HGN") test is not credible and that Defendant's deficiencies in the English language negates probable cause. The State opposes Defendant's Motion arguing that the warrant for Defendant's blood collection contained probable cause and that the officer administering the HGN test is qualified and credible. Alternatively, the State argues that absent the HGN test, the officer's warrant still contained probable cause to believe Defendant was impaired based on his observations during the traffic stop.

         On November 27, 2018, the suppression hearing was held. At the conclusion of the hearing, the Court ordered supplemental briefing on the issues. This is the Final Decision and Order of the Court on Defendant's Motion to Suppress and Motion to Strike.


         On July 27, 2018, Defendant was arrested for DUI, in violation of 21 Del. C. §4177(a)(1), and Failure to Remain in a Single Lane, in violation of 21 Del. C. §4122(1). On the evening of July 27, 2018, Delaware State Trooper Duane Freeman (hereinafter "Trooper Freeman") was on patrol in Bear, Delaware, when he pulled behind a black Maserati Gran Turismo ("Maserati") in a lane on Route 40 turning left onto Frazier Road. The traffic signal to turn was green and Trooper Freeman observed the Maserati remaining stationary at the light for approximately eight seconds before proceeding through the turn. After the Maserati turned onto Frazier Road, Trooper Freeman witnessed the Maserati veering from the right lane of travel into the left lane. Trooper Freeman then proceeded to conduct a stop of the Maserati at which time Trooper Freeman made contact with Defendant. Trooper Freeman observed Defendant's eyes to be red and glassy and detected a strong odor of alcohol emanating from Defendant. Trooper Freeman proceeded to ask Defendant how much alcohol he had consumed which Defendant replied that he had one beer at a bar prior to the traffic stop. Trooper Freeman then asked Defendant to exit the vehicle for sobriety testing. Trooper Freeman conducted the HGN test but was unable to complete the Walk-and-Turn test and the One-Leg-Stand test due to a language barrier between Trooper Freeman and Defendant. Thereafter, a Portable Breathalyzer Test ("PBT") was refused by Defendant but Defendant stated that "he was not drunk but may be intoxicated." At that time, Defendant was arrested for DUI and transported to Troop 2 where a search warrant was executed to collect Defendant's blood for testing.

         On October 8, 2018, Defendant filed the instant Motion to Suppress. A motion hearing was held on November 27, 2018, at which time the Court ordered briefing.

         On December 20, 2018, the State filed an Opening Brief on the Motion to Suppress issue. On December 28, 2018, Defendant filed a Brief in Support of the Motion to Suppress. On January 15, 2019, Defendant filed a Motion to Strike and a Rebuttal Response. On February 15, 2019, the State filed a Response to Defendant's Rebuttal Response and Motion to Strike.


         Defendant argues the search warrant authorizing the collection of Defendant's blood does not contain probable cause to suspect alcohol impairment. Defendant contends that the Court should not consider the time it took Defendant to accelerate at the green light, the odor emanating from Defendant nor the appearance of Defendant's red, glassy eyes as factors amounting to probable cause. Further, Defendant argues the affiant failed to indicate any indicia of DUI training in conducting the ("HGN"). Defendant avers there is a "total absence" of any information regarding the training, education, experience or circumstances that would lend credibility to the affiant's statements. Defendant contends that it is insufficient for the affiant to merely state that he is a "TFC" with a Delaware Police agency.[1] Additionally, Defendant argues his abilities were compromised by a language barrier such that he could not understand the directions for various field sobriety tests. As a result, Defendant argues that his statement that "he was not drunk but may be intoxicated" is of little value to the probable cause analysis.[2] Therefore, Defendant moves to suppress all evidence obtained as a result of his arrest including the collection of Defendant's blood and the HGN results. Lastly, Defendant moves to strike certain language used by the State in its Opening Brief which Defendant alleges attempts to use verbiage as a "grooming" agent to support probable cause.[3]

         The State argues that the warrant possesses sufficient facts to establish probable cause under a totality of the circumstances analysis. Further, the State contends that the probable cause determination does not require any type of specialized training within the affidavit to indicate a fair probability that Defendant was under the influence of alcohol.[4] The State asserts that the affiant's notation that he is a trooper was sufficient to show that he possesses the necessary training and certifications to administer field sobriety tests. The State avers that the probable cause indicators include: 1) Defendant's failure to proceed through a green light for nearly eight seconds; 2) Defendant's inability to remain within one lane; 3) Defendant's red, glassy eyes and odor of alcohol; 4) Defendant's admission to having consumed an alcoholic beverage prior to driving; 5) Defendant's refusal of the PBT; and 6) Defendant's admission that he was not drunk, but that he may have been intoxicated.[5] As to the refusal of the PBT, the State argues that a refusal to submit to testing may be used to show consciousness of guilt and is to be considered when examining probable cause to arrest for DUI.[6] As to the Motion to ...

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