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State v. Szczerba

Court of Common Pleas of Delaware

May 21, 2019


          Reserved: January 14, 2019

          Louis F. D'Onofrio, Esquire Deputy Attorney General Attorney Attorney for the State of Delaware

          Michael W. Modica, Esquire at Law N. King Street, Suite Attorney for Defendant


          Bradley V. Manning, Judge


         On March 25, 2018, Edward Szczerba (hereinafter "Defendant") was arrested by Master Corporal Grajewski (hereinafter "Grajewski") for the offense of Driving a Vehicle Under the Influence of Alcohol (DUI) in violation of 21 Del. C. § 4177. The facts which gave rise to these proceedings indicate that Patrolwoman Simmons (hereinafter "Simmons") of the Kennett Township Police Department observed Defendant traveling at a "speed [that] was higher than the [posted] 45mph limit." Simmons began to follow Defendant whereupon she observed that the rear registration tag was not properly illuminated. Simmons activated her emergency lights and pursued Defendant. The traffic stop and all relevant events were recorded on MVR and body camera, both of which were entered into evidence.[1] Defendant failed to comply with the lights and sirens and continued to drive, and at one point, for no obvious reason, applied his breaks and a very sudden and hard manner. After following Defendant for about a mile, Defendant was forced to come to a stop in a Wawa parking lot in Hockessin, Delaware. Upon approaching Defendant's vehicle and speaking with him, Simmons detected a strong odor of alcohol coming from Defendant's breath and person. Simmons testified that Defendant's speech was slurred and that he "was having a hard time forming words [and] sentences." Defendant's eyes were also bloodshot. Defendant had a difficult time responding to Simmons' request that he produce his license and registration. Additionally, Simmons observed several Miller Light beer cans in the rear of Defendant's vehicle cabin.

         Based on her training and experience, Simmons testified that she believed Defendant was driving under the influence of alcohol. However, rather than pursue the investigation herself, Simmons contacted Delaware police to respond to the scene. Grajewski arrived on scene and Simmons "advised him of the incident." Grajewski took over the investigation and upon making contact with Defendant, detected a "moderate" odor of alcohol, observed his eyes to be red and bloodshot, and that his speech was slurred. Grajewski asked Defendant his full date of birth which he was only able to answer correctly on his third attempt. Upon exiting his vehicle, Defendant was observed to have issues with his balance and staggered somewhat. Based on his training and experience, Grajewski testified that he believed Defendant was driving under the influence of alcohol.

         Grajewski then had Defendant walk over to the side of the Wawa to conduct field sobriety tests. Grajewski first attempted to administer the Horizontal Gaze Nystagmus test. Body camera footage shows Defendant swaying and rocking during the tests and was unable to comply with Grajewski's instructions, despite multiple attempts. More specifically, Defendant was unable to keep his head still and use only his eyes to follow the tip of the stimulus Grajewski's was using to administer the test. Defendant became visibly frustrated when Grajewski repeatedly instructed Defendant to keep his head still, and at one point pleaded with Grajewski to "work with me." The test was discontinued because Defendant could not comply with the basic instructions.

         Grajewski then attempted to administer the Walk and Turn test. Again, Defendant was unable to comply with the test instructions. Defendant was swaying back and forth and had a difficult time standing. Ultimately, Grajewski was concerned that Defendant was going to fall over and injure himself so he made the decision to stop the test. Grajewski then took Defendant into custody and had him sit in the back of his vehicle while waiting on a tow truck to remove his vehicle.

         On December 17, 2018, Defendant filed a Motion to Suppress. The Court held a hearing on the motion to suppress in conjunction with a bench trial January 14, 2019. Upon conclusion of the hearing, the trial was adjourned and the Court took the suppression motion under advisement. At the request of the Court, the State and Defendant both filed supplemental briefs following the hearing.


         On a "motion to suppress, the State must establish, by a preponderance of the evidence, that Defendant's arrest was supported by probable cause." [2] 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." [3] This totality consideration is based on "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." [4] "The Court must examine the totality of circumstances surrounding the situation as viewed through the 'eyes of a reasonable trained police officer in similar circumstances, combining the objective facts with the officer's subjective interpretation of those facts.'" [5]


         Defendant moves to suppress the evidence gathered as a result of his extended detention and ultimate arrest by Grajewski.[6] Defendant argues that Simmons failed to sufficiently communicate her reasonable suspicion of Defendant's impairment to Grajewski, and therefore, Grajewski lacked the required reasonable suspicion to conduct the DUI investigation or probable cause to arrest.[7] Defendant relies on State v. Cooley,457 A.2d 352, 355 (Del. 1983), which stated if "no officer connected to the arrest knows the facts which might justify it, no officer exercises the judgment required as a substitute for judicial approval." [8] Further, in Cooley, the Court found that the only officer who knew enough facts to reach a conclusion as to probable cause did not communicate them to the actual arresting officer.[9] Thus, the absence of communication between the officers resulted in a lack of probable cause to arrest.[10] Defendant also relies on State v. Holmes, ...

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