Opinion
C.A. No. 01A-09-001
Date Submitted: January 2, 2002
March 6, 2002
Andre M. Beauregard, Esquire, Esquire Brown, Shiels, Beauregard Chasanov, Rehoboth Beach, DE.
James J. Hanley, Department of Justice, Wilmington, DE.
Dear Counsel:
This case comes before the Court on appeal from the Court of Common Pleas. The lower court's decision is affirmed for the reasons stated herein.
PROCEDURAL POSTURE
Appellant Stephen Fletcher ("Appellant") was arrested on June 26, 1998, for driving a motor vehicle while under the influence of alcohol in violation of 21 Del. C. § 4177. As a result of this arrest, the Division of Motor Vehicles ("DMV") notified Appellant that his driver's license would be revoked for a period of three months pursuant to 21 Del. C. § 2742(c). On November 24, 1998, DMV held an administrative hearing at Appellant's request. The hearing officer concluded that the arresting officer had probable cause to believe that Fletcher was driving under the influence of alcohol in violation of 21 Del. C. § 4177. The hearing officer was also satisfied by a preponderance of the evidence that Appellant had violated § 4177. Accordingly, DMV ordered the revocation of Appellant's driver's license for a period of three months.
Appellant filed a timely appeal with the Court of Common Pleas, which affirmed DMV's order on August 22, 2001. Appellant appeals to this Court for a reversal of that decision.
STATEMENT OF FACTS
On June 26, 1998, Appellant was involved in an automobile accident in Sussex County, Delaware. Upon arrival, Trooper First Class Callaway of Troop 7 ("Trooper Callaway") developed a suspicion that Appellant was under the influence of alcohol. Trooper Callaway conducted field tests to determine whether Appellant was indeed under the influence of alcohol. Subsequent to the administration of these tests, Trooper Callaway placed Appellant under arrest for driving under the influence of alcohol in violation of 21 Del. C. § 4177(a).
Appellant was not the party at fault in this accident.
Appellant went to trial before a jury in the Court of Common Pleas on November 4, 1998. The major issue at trial concerned whether Appellant had consumed alcohol before or after the accident. Appellant was acquitted of the driving under the influence charge.
On December 4, 1998, DMV notified Appellant that his license would be revoked for a period of three months as a result of the above incident. Pursuant to 21 Del. C. § 2742(d), Appellant requested a hearing, which was held before a hearing officer on November 24, 1998. At this hearing, Trooper Callaway testified that he was able to smell alcohol on Appellant's breath and that Appellant told Trooper Callaway that he had consumed alcohol prior to the accident. The hearing officer determined that Trooper Callaway had probable cause to believe that Appellant was in violation of 21 Del. C. § 4177. The hearing officer also concluded that he was satisfied by a preponderance of the evidence that Appellant had driven while under the influence of alcohol or drugs. DMV subsequently ordered Appellant's license revoked for a three month period.
ISSUES PRESENTED
Before this Court, Appellant argues:
1. The hearing officer erred in holding that the preponderance of the evidence supported the finding that Appellant had violated 21 Del. C. § 4177 because the State of Delaware ("the State") stipulated to the facts as found at trial; and
2. A foundation was not laid for the admission of the field tests upon which the hearing officer relied in deciding that Appellant had violated 21 Del. C. § 4177.
In his reply brief, Appellant raises the issue of whether Appellant was prejudiced by the time delay between the date the appeal in this case was filed with the Court of Common Pleas and the date the Court of Common Pleas rendered its decision. Also in his reply brief, Appellant argues the State failed to prove that Appellant operated a motor vehicle on the night in question. These arguments will be discussed in turn.
DISCUSSION I. Standard of Review
When reviewing an appeal from the Court of Common Pleas, this Court reviews the decision below as the Supreme Court would consider an appeal. Baker v. Connell, 488 A.2d 1303, 1309 (Del.Supr. 1985). A two-fold standard of review is employed. First, this Court reviews errors of law de novo. Downs v. State, 570 A.2d 1142 (Del.Supr. 1990). Second, this Court is bound by findings of fact made by the Court of Common Pleas which are supported by the record and which are the product of a logical and deductive process. Id. at 1144.
Substantial evidence must support findings of facts the Court of Common Pleas made. Shahan v. Landing, 643 A.2d 1357 (Del.Supr. 1994). Such evidence is that which a reasonable mind might accept to support a conclusion. Oceanport v. Wilmington Stevedores, 636 A.2d 892 (Del.Supr. 1994). Substantial evidence is more than a scintilla but less than a preponderance. Olney v. Cooch, 425 A.2d 610 (Del.Supr. 1981). If substantial evidence exists for a finding of fact, this Court must accept that ruling, as it must not make its own factual conclusions, weigh evidence, or make credibility determinations. Johnson v. Chrysler, 213 A.2d 64 (Del.Supr. 1965). That this Court may have reached a different conclusion with respect to a factual issue is not enough to overturn the Court of Common Pleas's findings; rather, the court below must have abused its discretion to warrant reversal. Mooney v. Shahan, Del. Super., C.A. No. 01A-02-002, Bradley, J. (Aug. 24, 2001).
II. Violation of 21 Del. C. § 4177(a)
The arrest of an individual for a violation of 21 Del. C. § 4177 results in two proceedings, one administrative and one criminal. Landing, 643 A.2d at 1359. 21 Del. C. § 2742 governs the administrative proceeding. In order for the State to prevail at the administrative hearing, the State must:
(1) prove that the police officer had probable cause to charge the defendant with the offense of operating a motor vehicle while intoxicated and (2) prove by a preponderance of the evidence that the defendant committed the offense.
Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del.Super. 1989).
A. Probable Cause
Probable cause exists when a police officer "possesses information which would warrant a reasonable man in believing that a crime had been committed." Clendaniel, 562 A.2d at 1170 (internal quotation marks and citation omitted). Because Appellant did not challenge the hearing officer's finding of probable cause before the Court of Common Pleas or this Court, he has waived the issue. See Murphy v. State, 632 A.2d 1150, 1152 (Del.Supr. 1993).
B. Preponderance of the Evidence
DMV also must make a determination that the State has proved by a preponderance of the evidence that Appellant did indeed violate 21 Del. C. § 4177. Appellant strongly challenges the hearing officer's conclusion that the State has met its burden. Specifically, Appellant argues that the State was unable to prove a violation by a preponderance of the evidence because (1) the State stipulated to facts found at trial; (2) the field tests were admitted without foundation and are therefore unreliable; and (3) the State failed to prove Appellant operated a motor vehicle on the night at issue.
The Supreme Court has summarized the preponderance of evidence standard:
The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists. Reynolds v. Reynolds, Del. Supr., 237 A.2d 708, 711 (1967). If the evidence is in even balance then the side having the burden of proving a fact by a preponderance of the evidence has failed to prove it by such preponderance. Guthridge v. Pen-Mod, Inc., Del. Super., 239 A.2d 709, 713 (1967).
Barnett v. Division of Motor Vehicles, 514 A.2d 1145, 1147 (Del. 1986).
Commonly, the State uses the results of an intoxilyzer test to meet the preponderance of the evidence standard. In this case, however, the hearing officer did not consider the results of the intoxilyzer test. The resolution of the issue therefore turned on the physical manifestations of the Appellant's condition. See Barnett, 541 A.2d at 1147.
The Court of Common Pleas concluded that "[t]he balance of the field coordination tests establishes that [Appellant] was intoxicated." Op. at 4. In support of its conclusion, the Court of Common Pleas referenced the hearing officer's finding that Appellant failed four of the five field coordination tests administered to Appellant. In addition, the Court of Common Pleas noted that Appellant admitted he had been drinking to the arresting officer and that the officer detected a strong odor of alcoholic beverage on Appellant's breath.
Appellant argues Trooper Callaway stipulated to the trial court's "finding of fact" that Appellant consumed alcohol after driving the car. The Court of Common Pleas found that Trooper Callaway did not state that he agreed with the finding of the jury, nor did he stipulate to the fact that Appellant was not under the influence of alcohol when he was driving. The Court of Common Pleas also noted that the jury's reason for a not guilty verdict is speculative. Substantial evidence in the record supports the Court of Common Pleas' findings. Trooper Callaway agreed with Appellant's attorney that the jury in the criminal proceeding stemming from Appellant's arrest "had to have some reasonable doubt [as to] the fact that he was drinking after the accident." Hr'g Tr. at 21. The officer did not testify with respect to his personal opinion on the matter. Furthermore, while it is likely that the jury had a reasonable doubt as to when Appellant consumed the alcohol that led to his intoxication, this "fact" has no relevance to the proceeding at issue. This Court has stated,
It should also be noted that because the required burden of proof for the administrative action here under [ 21 Del. C. § 2742] is different from that required in a criminal case, even if the appellant had obtained an acquittal, such acquittal would not bar a subsequent administrative proceeding on the same charge.
Clendaniel, 562 A.2d at 1171 (citation omitted). Appellant had an opportunity to argue his case to the hearing officer. Clearly, the hearing officer made an essential credibility determination and chose to accept Trooper Callaway's version of events over that of Appellant. The Court of Common Pleas implicitly upheld this assessment and this Court may not disturb it.
Appellant also argues that the field test results were admitted without the State laying a proper foundation and, therefore, the hearing officer improperly considered them when determining that the preponderance of the evidence standard had been satisfied. The Court of Common Pleas found that the hearing officer's conclusion that Appellant failed four out of five field tests together with Appellant's admission to the arresting officer that he had been drinking and the officer's testimony that Appellant had a strong odor of alcohol about him proved by a preponderance of the evidence that Appellant had violated 21 Del. C. § 4177.
Appellant argues for the reversal of DMV's order on the premise that the hearing officer improperly considered the HGN test. This assertion is without merit. As noted by the Court of Common Pleas, the hearing officer did not rely on the HGN test in reaching his conclusion that Appellant was under the influence of alcohol.
Appellant also ingeniously posits that Trooper Callaway did not testify as to the specific nature of Appellant's failure to pass the other field tests given weight by the hearing officer. With respect to Appellant's argument that the alphabet test was successfully completed, the Court suspects counsel has failed to carefully review the hearing officer's report and the Court of Common Pleas' decision. Both note that the Appellant passed the alphabet test and, in fact, the Court of Common Pleas observed that Appellant's performance on this test provides what little evidence there is on the record that he was not intoxicated. Appellant argues that the remaining tests should be dismissed for lack of foundation because Trooper Callaway did not specify how exactly Appellant failed these tests. The Court of Common Pleas quickly disposed of these allegations as unsupported by the record. Its decision to do so was well grounded in the record and absent legal error.
For example, Appellant argues that the results of the heel-to-toe test were unreliable because "Trooper Callaway did not provide any explanation of what he meant by missing heel to toe." Appellant's Opening Br. at 8.
Lastly, Appellant argues that the record does not support a finding that Appellant operated a motor vehicle on the night in question and, therefore, there is insufficient evidence to support a finding that Appellant violated 21 Del. C. § 4177. Because Appellant failed to raise this issue in his opening brief, the argument may not be considered on appeal.
C. Time Lag between Filing of Appeal and Final Decision
In his reply brief, Appellant alleges that the time delay between the filing of Appellant's appeal from DMV's order and the issuance of the Court of Common Pleas' decision caused him undue prejudice. Appellant filed an appeal with the Court of Common Pleas on December 15, 1998. The Court of Common Pleas rendered its decision on August 22, 2001. Appellant argues that this delay is attributable to the State, asserting, "None of the three year delay is accountable to the Appellant."
First, Appellant failed to raise this issue in a timely fashion and, therefore, the Court may consider it waived. See Murphy, 632 A.2d at 1152.
Second, while the large majority of the delay is accountable to Appellant, none of it is attributable to the State.
On March 31, 1999, the Court of Common Pleas set a briefing schedule. Appellant's opening brief was due on April 20, 1999. Appellant failed to file a brief. The Court of Common Pleas sent Appellant a delinquent notice dated June 1, 1999. Mr. Beauregard responded to this notice by letter, dated June 4, 1999, in which he stated that the responsibility for the opening brief belonged to another attorney in his office and that this attorney had failed to file the brief as required. Mr. Beauregard requested a new briefing schedule.
The Court of Common Pleas established a new briefing schedule. Appellant failed to comply with that schedule. By letter dated July 29, 1999, Mr. Beauregard once again blamed his associate for not following through with the matter. Mr. Beauregard expressed disgust with the situation and requested another briefing schedule.
Yet another briefing schedule was established. The opening and answering briefs were filed. However, Mr. Beauregard failed to file the reply brief which was due on October 9, 1999. Mr. Beauregard waited until he received a Rule 41(e) notice before notifying the Court of Common Pleas that he did not intend to file a reply brief.
Thus, a delay of one year and almost ten months is directly attributable to Appellant. The case was before the Court of Common Pleas for a total of two years and eight months. Accordingly, the matter was pending on appeal before the Court of Common Pleas for approximately one year. The State did not delay this matter in any manner whatsoever. Appellant's representations regarding the delay are incorrect.
Based on the foregoing, the decision of Court of Common Pleas rendered on August 22, 2001, is affirmed.
IT IS SO ORDERED.