Opinion
Case No. 1508020637
11-30-2018
STATE OF DELAWARE, v. NEIL A. REILLY, Defendant.
Colleen E. Durkin, Esquire Deputy Attorney General 820 N. French Street, 7th Floor Wilmington, DE 19801 Attorney for the State of Delaware Joe Hurley, Esquire 1215 King Street Wilmington, DE 19801 Attorney for Defendant
Colleen E. Durkin, Esquire
Deputy Attorney General
820 N. French Street, 7th Floor
Wilmington, DE 19801
Attorney for the State of Delaware Joe Hurley, Esquire
1215 King Street
Wilmington, DE 19801
Attorney for Defendant MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
The defendant, Neil Reilly (hereinafter the "Defendant"), brings this Motion to Suppress Evidence. Defendant was arrested for Driving Under the Influence ("DUI") for which he now stands trial. Defendant alleges that field sobriety tests ("FSTs") were improperly administered and therefore, cannot be considered in the determination of probable cause. Defendant also calls into question the officer's jurisdiction to arrest Defendant, as well as the officer's credibility. The State opposes Defendant's Motion alleging that the FSTs were administered in compliance with the National Highway Transportation Safety Administration ("NHTSA") guidelines. Alternatively, the State argues that absent the FTSs, the officer had probable cause to arrest Defendant based on his observations during the traffic stop. The State also argues that the testifying officer is credible and had jurisdiction to arrest Defendant.
On January 16, 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 Evidence.
On April 18, 2018, in a request for an extension of time to submit supplemental briefs, defense counsel notified the Court of an intra-office mistake which resulted in supplemental briefs not being timely submitted to the Court. The Court granted the request for the extension of time for 30 days from receipt of the transcript from the motion hearing.
FACTS AND PROCEDURAL HISTORY
On August 26, 2015, Defendant was arrested for DUI, in violation of 21 Del. C. § 4177(a), Improper Passing, in violation of 21 Del. C. § 4119(a)(2), and Speed Exhibition, in violation of 21 Del. C. § 4172(a). On January 16, 2018, a motion hearing was held on the issue of suppression. At the hearing, State witness and arresting officer, Corporal Betsch, testified to the following alleged facts of the incident. Corporal Betsch testified that he is a police officer who was taking part in an "extra duty assignment" to patrol for DUI's and other traffic violations in the Town of Newport. On August 26, 2015, at approximately 10:15 p.m., Corporal Betsch was on patrol in Stanton where he witnessed Defendant driving his motorcycle at a rate of speed exceeding the limit of 40 mph. Corporal Betsch followed Defendant for approximately one mile on Route 7 and proceeded left through a green arrow onto Kirkwood Highway behind Defendant. Upon reaching a red light at the intersection of Kirkwood Highway and St. James Church Road, Defendant pulled along the left side of a vehicle positioned in the right lane, sharing the lane with the vehicle. Upon the light turning green, Corporal Betsch activated his emergency lights and Defendant proceeded to pull over. Corporal Betsch approached Defendant and requested his license, registration and insurance, but Defendant was unable to produce his physical driver's license. Corporal Betsch noted a "moderate odor of an alcoholic beverage" from approximately two feet away from Defendant and Defendant admitted that he was coming from a friend's house in Newport where he had consumed two beers. Corporal Betsch observed Defendant's eyes to be watery and glassy and his speech to be slurred. Corporal Betsch proceeded to conduct two FSTs, the walk-and-turn test and the one-leg-stand test. During said tests, Defendant allegedly missed one heel-to-toe step and raised his arms during the walk-and-turn test and put his foot down and raised his arms during the one-leg-stand test. Ultimately, as a result of the aforementioned facts, an intoxilyzer test was conducted.
As to the FSTs, Corporal Betsch testified during the hearing that he instructed Defendant to point his toes upward during the one-leg-stand test and also did not independently time the test. Additionally, Corporal Betsch testified that he did not instruct Defendant to look at his feet during the walk-and-turn test. Defendant requested for the Court to take judicial notice of the fact that the NHTSA guidelines require that the officer instruct Defendant to look at his feet during the walk-and-turn test and notice was so taken. Corporal Betsch testified that he was uncertain as to these NHTSA requirements.
On April 18, 2018, the Court received defense counsel's request for an extension of time to submit briefs. On June 4, 2018, Defendant submitted a Memorandum of Law Regarding Suppression. On September 24, 2018, the State submitted a Response to Defendant's Memorandum and on October 1, 2018, Defendant submitted a Reply Memorandum.
PARTIES' CONTENTIONS
In making his argument that Corporal Betsch did not have probable cause to arrest, Defendant alleges that the FSTs are inadmissible because the officer did not conduct instruction of the tests in compliance with NHTSA guidelines. As to the walk-and-turn test, Defendant argues that the officer never instructed him to look at his feet while he walked and since the "instructions and procedures are inflexible" for the purpose of maintaining the test's reliability, the inaccuracy of the officer's instruction diminishes such reliability, rendering the walk-and-turn test inadmissible. As to the one-leg-stand test, Defendant argues that the officer again deviated from the NHTSA instruction guidelines by advising Defendant to stand on one leg, keeping his hands at his side and pointing his toes upward, rather than parallel to the ground. Defendant further argues that the officer did not independently time the test, but instead relied on Defendant's count which is in direct violation of the NHTSA instructions. Defendant calls into question Corporal Betsch's credibility, alleging that there were "multiple deficiencies in the effort to prove the existence of probable cause." In Defendant's Reply Memorandum filed October 1, 2018, Defendant abandons his jurisdictional challenge based on a mistaken belief that Corporal Betsch was employed by a police department other than the Newport Police Department.
Tr. of Mot. to Suppress hr'g. at 72.
Def.'s Reply Mem. at 5.
The State opposes Defendant's Motion, arguing that the FTSs are admissible despite deviations from the NHTSA guidelines. The State also argues that regardless of the admission of the FSTs, the officer had probable cause to arrest Defendant for DUI based on other incriminating observations. Lastly, the State contends that the officer should not be found incompetent based solely on the following: "scrivener's errors" in the police report which Corporal Betsch clarified during his testimony; Corporal Betsch's reference to his report as his notes; and Corporal Betsch's occasional need to refer to his report for an incident that occurred approximately three years prior.
DISCUSSION
Probable cause is determined by a totality of the circumstances approach which takes into consideration all observations of, and facts known to, the police officer prior to effectuating an arrest. Probable cause requires "a showing of a probability that criminal activity is occurring or has occurred." The State bears the burden of establishing by preponderance of the evidence that the challenged police conduct was not in violation of the defendant's constitutional or statutory protections.
See State v. Maxwell, 624 A.2d 926, 928-29 (Del. 1993).
Bease v. State, 884 A.2d 495, 498 (Del. 2005).
Hunter v. State, 783 A.2d 558, 560 (Del. 2001).
Field Sobriety Tests
Defendant's contentions are correct regarding the walk-and-turn and one-leg-stand tests' inadmissibility. The NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide sets out, "If any one of the SFST [Standardized Field Sobriety Test] elements is changed, the validity may be compromised." "The Court's role is to take note of the deficiencies in the administration of the sobriety test when giving weight and value to the tests performed." It is one thing for an officer to omit or forget a factor or clue while under examination or to deviate from NHTSA standards in some insignificant manner. It is another matter to provide faulty instructions for the very test for which the State seeks to hold the defendant responsible. Corporal Betsch sufficiently deviated from the NHTSA instructions so as to diminish the tests' reliability. During the walk-and-turn test, Defendant was never instructed to look at his feet as he walked. The Court has no basis to determine the degree to which this affects one's performance of the test. Similarly, during the one-leg-stand, Defendant was advised to point his toes up, rather than parallel to the ground. The Court concludes these deviations from the NHTSA guidelines in the officer's instructions in this case were not insignificant and therefore, the FSTs are not admissible. Nonetheless, the Court need not rely solely on the validity of the FSTs in making its determination regarding the existence of probable cause.
National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing, Session VIII at 13 (Oct. 2015).
Id.
See State v. Hudgins, 2015 WL 511422, at *3 (Del. Super. Jan. 16, 2015). An insignificant failure to strictly comply with NHTSA found where police did not ask the defendant whether or not he had a disability that would affect performance of the test, but the defendant was not asserting that he had a disability.
Id.
Officer's Observations
Notwithstanding the invalidity of the FSTs, Corporal Betsch had sufficient probable cause to arrest Defendant for DUI. The Delaware Supreme Court in Bease v. State, held that probable cause existed in a case nearly identical to the instant matter before the Court. In Bease, the Delaware Supreme Court affirmed a Superior Court decision finding probable cause where: 1) the defendant was initially stopped for committing a traffic violation, 2) the officer observed upon subsequent contact with the defendant that the defendant smelled of an alcoholic beverage from an approximate distance of two feet, 3) the defendant stated that he consumed "chardonnay or beer the night before," 4) the defendant's eyes appeared bloodshot and glassy, and 5) the defendant was speaking rapidly. Like the instant case, the defendant in Bease was also unable to produce his driver's license. Decided on these factors alone, the Delaware Supreme Court went on to say,
884 A.2d 495, 500 (Del. 2005).
Id. at 499-500.
Id. at 499.
Based upon Trooper Penrod's observations and the rational inferences drawn therefrom, there existed "a quantum of trustworthy factual information, 'sufficient in themselves to warrant a [person] of reasonable caution' to conclude that probable cause existed" to believe Bease was driving under the influence of alcohol at the time Trooper Penrod stopped him. Accordingly, the Superior Court correctly concluded that the totality of circumstances was sufficient to establish probable cause to test Bease by an intoxilyzer. Consequently, Bease's motion to suppress those test results was properly denied.
Id. at 500. --------
The Court concludes probable cause existed based upon the following observations of Officer Betsch: 1) Defendant was observed speeding in excess of the posted limits; 2) Defendant was observed improperly passing another motorist; 3) Defendant was unable to produce his driver's license 4) at an approximate distance of two feet, Officer Betsch detected a moderate odor of alcohol emanating from Defendant; 5) Defendant admitted to drinking two beers; 5) Defendant's eyes appeared to be glassy and watery; and 7) Defendant's speech was slurred.
As to the credibility of Corporal Betsch's testimony, the Court finds that the officer's inconsistencies are ministerial and do not undermine his credibility so much as to negate probable cause. Officer Betsch testified that the observation times listed in his report were inaccurate because the times indicate that the observation time ended before it began. Officer Betsch also testified that he marked the wrong checkboxes in his report to indicate on which steps clues were observed during Defendant's walk-and-turn test. These factors go the weight of the testimony, not its admissibility.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED this 30th day of November, 2018, that Defendant's Motion to Suppress be GRANTED IN PART and DENIED IN PART. The matter will be scheduled for a Jury trial.
/s/
The Honorable Carl C. Danberg
Judge cc: Shawn Johnson, Judicial Case Manager