Opinion
ID. No. 1009010399.
April 11, 2011.
ORDER
AND NOW, TO WIT, this 11th day of April, 2011, IT IS HEREBY ORDERED as follows:
Statement of Facts
The Delaware State Police operated a sobriety checkpoint on southbound Route 141, south of Kirkwood Highway from September 11, 2010 into September 12, 2010. Brian Butler ("Defendant") came upon the checkpoint at approximately 1:45 a.m. on September 12, 2010. He was driving a white Mitsubishi Montero Sport. There was no one else in the vehicle. Trooper Conway of Delaware State Police Troop 6 ("DSP") identified himself as a member of the DSP. While standing approximately three feet from the Defendant, Trooper Conway noticed he had glassy eyes, a strong odor of alcohol on his breath, his face was flushed, and he had a fatigued appearance. Trooper Conway then asked the Defendant where he had been earlier in the evening and if he had been drinking. The Defendant responded that he had been working at the Brandywine Brewing Company and that he had consumed a few beers after work. Based on his observations, and the Defendant's admission that he had been drinking prior to driving, Trooper Conway asked the Defendant to pull to the side of the road to perform field sobriety tests.
Trooper Conway noted the Defendant's speech was normal and understandable. The Defendant correctly performed the "counting" field sobriety test by counting backwards from 69 to 54.
The Defendant failed the "alphabet" test by transposing letters and not stopping when directed. At the hearing, Trooper Conway testified the Defendant was to recite the alphabet from D to M. The Defendant actually recited: "D, E, F, G, H, I, J, K, L, M, N, O, P, W, T, R, S, T, V." Therefore, he failed the test.
The Defendant failed the "finger dexterity test" after receiving two sets of instructions; the second set at his request. He was supposed to start the test by touching his thumb to pointer finger and counting from one to four as he descended down his hand. Instead, the Defendant began the test by touching his thumb to middle finger and ending on his ring finger. However, the Defendant did complete the second half of the test correctly by beginning with his thumb touching his pinky finger and counting from one to four as he ascended toward his pointer finger.
The Defendant failed the "walk and turn" test. After being instructed on the test and watching Trooper Conway perform it correctly, the Defendant raised his arms on steps 1 and 2 of the first nine steps when his arms were to remain at his side. He stopped at step 9 without completing the turn as instructed. He removed his left foot from the line and pivoted on his right foot. On the second set of nine steps, he stopped walking on steps 5 and 7. He raised his arms on steps 7 and 9. He also stepped on his toes with his heel, rather than just touching heel to toe.
He also failed the "one leg stand" test after Trooper Conway explained and demonstrated the test to the Defendant. On counts 15, 18, and 21, the Defendant swayed and put his foot down. The Defendant was instructed to count for 30 seconds, to 30. Instead, he counted to 21. Trooper Conway testified at the hearing that he timed the Defendant for 30 seconds and in those 30 seconds, the Defendant only counted to 21 seconds. The Defendant stopped counting when he put his foot down.
The Defendant also failed the Horizontal Gaze Nystagmus ("HGN") test by exhibiting 6 out of a possible 6 clues for intoxication. Based on his appearance, the strong odor of alcohol coming from him and his vehicle, his admission of drinking alcohol earlier that evening, and his poor performance on the field sobriety tests, Trooper Conway concluded that the Defendant was under the influence of alcohol.
Within one hour of driving, the Defendant's blood alcohol concentration was 0.189%. The Defendant was arrested for driving under the influence of alcohol in violation of 21 Del. C. § 4177.
The Defendant has filed this motion to suppress alleging the State failed to demonstrate the cars that were stopped during the sobriety checkpoint were not random, Trooper Conway lacked reasonable articulable suspicion to question the Defendant after the initial seizure, and there was no probable cause to arrest the Defendant.
Discussion
I. The Sobriety Checkpoint Was Conducted Pursuant to Delaware State Police Procedures, Requiring All Vehicles Traveling Through the Checkpoint Be Stopped.
The State has demonstrated by a preponderance of the evidence that the sobriety checkpoint was in substantial compliance with the standards promulgated by the DSP. The only portion of the procedures challenged by the Defendant is the stop of every vehicle traveling through the checkpoint. To be constitutional, the officers operating the checkpoint cannot have discretion over which vehicles to stop. The DSP procedure mandates every vehicle be stopped, unless traffic becomes congested, in which case all vehicles waiting to enter the checkpoint are released and once the congestion clears, the officers are required to resume stopping all vehicles.
State v. Hughes, 2003 WL 21213709 (Del. Super. Ct.).
Bradley v. State, 858 A.2d 960 (Del. 2004) (TABLE).
State v. Stroman, 1984 WL 547841 (Del. Super. Ct.).
State's Ex. 2 ¶ 8.
Here, the Defendant contends Trooper Conway failed to establish that every vehicle is stopped at the checkpoint even though Trooper Conway said all vehicles were stopped. On direct examination, Trooper Conway also stated the traffic entering the checkpoint became congested about three or four times that evening and all cars were released until the congestion cleared. He also testified there was no congestion when the Defendant entered the checkpoint and there were either one or two cars in front of him. That would imply Trooper Conway had time to observe the Defendant approach the checkpoint because the one or two cars in front of him were stopped. The State has met its burden that the cars were stopped in accordance with DSP procedure, by a preponderance of the evidence.
II. Trooper Conway Had Reasonable Articulable Suspicion to Question the Defendant After the Initial Stop Because He Detected A Strong Odor of Alcohol Coming From the Defendant and His Vehicle, His Eyes Were Glassy, and He Appeared Fatigued.
Trooper Conway had reasonable articulable suspicion to believe the Defendant was driving under the influence of alcohol based on his observations during the thirty second stop of the Defendant's vehicle. An officer has reasonable articulable suspicion based on the totality of the circumstances. "Reasonable suspicion exists where . . . the officer had a particularized and objective basis for suspecting legal wrongdoing."
Lopez-Vazquez v. State, 956 A.2d 1280, 1289 (Del. 2008).
Jacklin v. State, 2011 WL 809684 (Del. 2011) (internal quotations and citations omitted).
Under the totality of the circumstances, Trooper Conway had reasonable articulable suspicion to question the Defendant after the initial stop at the sobriety checkpoint because, while standing approximately three feet away, he smelled a strong odor of alcohol coming from both the car and the Defendant. Trooper Conway also noticed the Defendant had glassy eyes, a pale face, and he appeared to be tired. Based on his observations, Trooper Conway had reasonable articulable suspicion to believe the Defendant was driving under the influence of alcohol and it was proper to detain him for questioning after the initial stop.
The Defendant argues a pale face is not indicia of someone who is intoxicated. Even if his pale face was not considered, reasonable articulable suspicion still existed because Trooper Conway smelled alcohol coming from both the Defendant and his vehicle.
III. Trooper Conway Had Probable Cause to Arrest the Defendant for Driving Under the Influence of Alcohol in Violation of 21 Del. C. § 4177 Because the Defendant Admitted to Consuming Alcohol that Evening and He Failed Several Field Sobriety Tests.
Trooper Conway had probable cause to believe the Defendant was driving under the influence, in violation of 21 Del. C. § 4177, when he admitted to consuming beer that evening and failed several field sobriety tests. Under the totality of the circumstances, probable cause exists when the police have sufficient information that would allow a reasonable man to believe a crime has been committed. In order to establish probable cause, the police only need to present facts demonstrating "a fair probability that the defendant has committed a crime."
State v. Maxwell, 624 A.2d 926, 930 (Del. 1993) (citations omitted).
Id. (citations omitted and emphasis in original).
The facts of this case are similar to those in Miller. Probable cause existed in Miller when the officer, standing two or three feet away, observed the defendant's glassy, watery eyes. Miller also failed the walk and turn and one leg tests and admitted she consumed two beers approximately two hours before her automobile accident. Probable cause existed even though "Miller spoke clearly, appeared orderly, and cooperated politely throughout [the] interaction."
Miller v. State, 4 A.3d 371 (Del. 2010).
Id. at 372.
As in Miller, probable cause existed to arrest the Defendant. Trooper Conway was standing approximately three feet away from the Defendant when he detected a strong odor of alcohol coming from the Defendant's breath, noticed his glassy eyes, and he admitted he had consumed a couple of beers prior to driving that evening. Probable cause existed even though the Defendant's speech appeared to be normal and understandable, similar to Miller. Additionally, the Defendant failed the "alphabet" test, the "finger dexterity" test, the "walk and turn" test, the "one leg stand" test, and the Horizontal Gaze Nystagmus test by exhibiting six out of a possible six clues of intoxication. Therefore, Trooper Conway had probable cause to arrest the Defendant for driving under the influence of alcohol.