IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

C RISTIAN MENDEZ

- GARCIA ,

Appellant,

v. ID. No. 1903019680

STATE OF DELAWARE,

Appellee

.

Submitted: May 8, 2020

Decided: July 24, 2020

Upon Appeal from the Court of Common Pleas

–

AFFIRMED

.

OPINION

Thomas A. Foley, Esquire
, Attorney for Appellant

. Isaac A. Rank, Deputy Attorney General, Attorney for Appellee

. STREETT, J. ) ) ) ) ) ) ) ) )1 Introduction

C ristian Mendez

- Garcia (the “Appellant”) was arrested for driving under the
influence (“DUI”) by Corporal Maura Schultz (“Corporal Schultz”) of the New

Ca stle County Police Department. Before his trial in the Court of Common Pleas
(the “Trial Court”) , Appellant moved to suppress evidence , including his Intoxilyzer

test results, obtained by the police. Appellant argued that there was insufficient
probable c ause to require him to submit to the Intoxilyzer test . The Trial Court
denied Appellant’s Motion to Suppress . At trial, the Trial Court found Appellant
guilty of DUI. Appellant now appeals the Trial Court’s decision to deny his Motion

to Suppress, conte nding that the Trial Court erred in ruling that the State established

pro bable cause. The State contends that the Trial Court did not err.

Statement of Facts
On March 30, 2019, Corporal Schultz was disp atched to the scene of a

vehicular accident in a residential area

. 1 Appellant was present upon arrival . The

officer’s body camera was turned on and recorded her interaction s with Appellant.
Appellant informed Corporal Schultz that his vehicle had struck the rear
bumper of an unoccup ied vehicle (which was parked on the other side of the street)

as he backed out of a parking space

.

1 The accident occurred on Danbury Drive in the Wellington Woods development.2

As to driving and vehicle documentation, A ppellant’s driver’s license was

suspended for a prior DUI and he was unable to produce a valid dr iver’s license. H e
provide d a Delaware State ID card, a valid insurance card, car registration, and
paperwork from his prior DUI arrest.
Corporal Schultz detected an odor of alcohol emanating from Appellant and
observed that Appellant’s eyes were bloodshot. Appellant admitted that he had been
drinking alcohol prior to the accident. Corporal Schultz noted that Appellant was
cooperative and pleasant, his balance and demeanor appeared to be normal, and his
clothing was orderly.
Corporal Schultz then condu cted field tests on Appellant and noted six clues
during the horizontal gaze nystagmus test (“HGN”) and two clues during the walk

and

- turn test

. Corporal Schultz did not note any clues during Appellant’s one

- leg

stand test. Corporal Schultz also performed a PBT on Appellant.
Corporal Schultz then arrested Appellant and transported him to the New
Castle County Police Headquarters to conduct an Intoxilyzer test. Before conducting

the test, Corporal Schultz waited 25 minutes, she continuously observed Appellan t
during the period , she read Appellant his Miranda rights 2 , Appellant waived t hose
rights, and Corporal Schultz questioned Appellant about his wher eabouts prior to the

accident

. Appellant then blew into the Intoxilyzer machine and the Intoxilyzer

2 Miranda v. Arizona
, 384 U.S. 436 (1966).3

results registered a .157 Blood Alcohol Count (“BAC”), which was higher than the
maximum allowable BAC for operating a motor vehicle in Delaware (.08 BAC). 3

Corporal Schultz then cited Appellant for driving while under the influence of

alcohol.

Procedural History
On September 11, 2019, Appellant filed a Motion to Suppre ss all evidence
, including the results of the Intoxilyzer test. Appell ant contended that probable cause

did not exist to take him into custody and that the field tests were unreliable and

inadmissible.

On October 8, 2019, the Trial Court held a Suppression Hearing . Corporal

Schultz testified for the State and the body camera video was admitted, without
objection, into evidence. 4 Appellant did not testify, call any witnesses , or present
any evidence

. Corporal Schultz testified that she has worked for the New Castle County
Police Department for twelve years and that she currently works on patrol. 5 She
stated that she completed forty hours of DUI detection training at the New Castle

3 Appellant stip ulated that Corporal Schultz had training and experience operating the Intoxilyzer machine and that the machine was properly calibrated. See Trial Transcript, at 7.

4 Appellant’s counsel stated that the body camera video was the “best evidence” and did not object to it being admitted and played during the hearing. Suppression Hearing Transcript, at 11.

5 Id. at 7.4

County Police Academy. 6 She also stated that she is ARIDE certified 7 and is a DUI

instructor, 8 and had made approximately fifteen prior DUI

- related arrests. 9

Corporal Schultz testified that, o n March 30, 2019, she began work at
approximately 5:30 a.m

. 10 She was called to the area of Danbury Drive in
Wellington Woods for a v ehicle collision investigation at approximately 6:30 a.m. 11

Upon arrival, s he saw Appellant standing outside of his vehicle. 12 The officer

observed damage to the rear bumper of Appellant’s vehicle , damage to the pass enger
side of the other vehicle, 13 and pieces of Appellant’s vehicle ’s light on the ground

6 Corporal Schultz explained that her DUI training consisted of classroom training (watching videos and reviewing the standardized field sobriety tests), a wet lab (observing individuals who are on different levels of intoxication), completing the field sobr iety tests with test subjects, and Intoxilyzer training. Id . 8

- 9.

7 Although not elaborated upon by Corporal Schultz, Advanced Roadside Impaired Driving Enforcement (ARIDE) is a certificate program administered by the National Highway Traffic Safety Admi nistration.

8 Id. at 8.

9 Id . at 14.

10 Id . at 9.

11 Id . at 32.

12 Id . at 10.

13 Id

.5

next to the other vehicle. 14 Corporal Schultz also spoke to a witness who said that

she heard the collision and then watched Appellant get out of his car. 15

Corp oral Schultz suspected that Appellant was under the influence because

she detected an odor of alcohol “emanating from his person.” 16 She noticed that
Appellant’s “eyes were bloodshot” 17 and he was “very emotional [and] he seemed

very upset. ” 18 His clothes, however, were “very orderly”. 19

Corporal Schultz testified that s he administered the HGN test on Appellant.
Corporal Schultz explained the procedure for administering the HGN test

. She said
that there are six clues for determining impairment, and that the presence of two
clues indicates impairment. 20 She testified that when she checked Appellant’s eyes

14 Id

.

15 Id . at 16.

16 Id. at 14.

17 Id.

18 Id . at 15.

19 Id.

20 Corporal Schultz stated that
, prior to conducting a HGN test
, the officer looks at the subject’s eyes and verifies that the pupils are of equal size and that there is no resting nystagmus. The officer then twice checks whether the subject’s pupils are tracking equally when going side to side starting wit h the left side . She also tes tified that the officer then conducts the HGN test and checks for six validated clues. She stated that the clues are equal tracking for each eye, distinct and sustained nystagmus at maximum for each eye, and onset of nystagmus prior to 45 degrees for each eye. Id at 18, 35

- 36.6

for smooth pursuit , there was a clue in each eye. 21 She observed nystagmus onset

before 45 degrees and vertical nystagmus in each of Appellant’s eyes

. 22 In total, she

noted six clues. 23 Corporal Schultz testified that such a result on the HGN test

indicate s an intoxication level higher than the legal limit of .08 BAC

. 24

Corporal Schultz then testified that she administered the walk

- and

- turn test on
Appellant. She stated that there are eight clues to look for during the walk

- and

- turn

test. 25 She noted that Appellant displayed two clues during the w alk

- and

- turn test

–

h e s ta r ted too soon and he missed a heel

- to

- toe. 26 Corporal Schultz testified that a
finding of two clues on the walk

- and

- turn test indicate s an intoxication level higher
than the legal limit of .08 BAC

. 27

21 Id . at 19

- 20. Corporal Schultz testified that each of Appellant’s eyes displayed a stutter step when performing the smooth pursuit portion of the test.

22 Id. at 20

- 21.

23 Id.

24 Id . at 22

. Although the HGN test does not determine BAC level, t he State ask ed Corporal Schultz “Did the results of the [HGN] test indicate to you that the defendant was above or below a .08 BAC?” Corporal Schultz responded
, “Yes... [t]hat he was above a .08 BAC.”

25 Id . at 23

- 24. Corporal Schultz explained that the wa lk

- and

- turn test consists of an instruction stage and the n a walking stage. During the instruction stage, she looks for whether the subject starts too soon or is unable to maint ain his or her balance. T he walking stage consists of heel

- to

toe stepping , step ping off the line, use of arms for balance, too many steps, wrong turns , or stops while walking.

26 Id . at 25.

27 Id . at 26. Although the walk

- and

- turn test does not determine BAC level, t he State asked Corporal Schulz, “What do two clues indicate to you regarding an individual’s level of intoxication on the walk

- and

- turn test?” She responded, “That the defendant would b e... intoxicated.” The7

Corporal Schultz testified that she then administered the one

- legged test on
Appellant. 28 She stated that there are four clues to look for in the one

- legged test.
She observed zero clues during this test. 29

Corporal Schultz also said that she administered the portable breathalyzer test
(“PBT”) on Appellant. 30 She testified that the standard for administering this test is
to wait at least fifteen minutes after initial contact with the subject before
administering the test and that she waited the required fifteen minutes. 31

Corporal Schultz testified that, after she completed her investigation at the
scene of the accident, she arrested Appellant, transported him to the New Castle
County Police Headquarters, and administered an I ntoxilyzer test on him. 32

T he State play ed Corporal Schultz’s body camera video of her investigation

a nd interaction s with Appellant. 33 Corporal Schultz testified that she wore the body
camera during her investigation, it recorded what she saw and heard, she reviewed

State followed up, “And what does that tell you regarding their BAC level?” Corporal Schultz answered, “That it ’ s above a . 08.”

28 Id. at 27.

29 Id.

30 Id.

31 Id . at 28. Corporal Schultz did not testify as to the results of the PBT.

32 Id

. at 30.

33 Id. at 12.8

the video, a nd the video accurately reflected her recollection of the investigation and

arrest

. 34

The Trial Court then watched the video

. 35 It s how ed Corporal Schultz asking
Appellant for his driver’s license 36 and Appellant responding that he has a DUI
pending and that his license was suspended. 37 Corporal Schultz then asked
Appellant, “ Have you been drinking this morning ?” 38 Appellant responded
, “ Uh

yes ... it’s my birthday tonight.” 39 Appellant also explained that he hit the oth er
vehicle as he was backing up 40 because he “accidently pulled out way too hard.” 41

34 Id. at 11.

35 In its Opinion, the Trial Court stated that “[t]hrough this video and audio footage, the Court ob served the accident scene and Defendant’s conduct.” Trial Court’s October 16, 2019 Opinion, at 3.

36 State’s Exhibit #1, at 1:22.

37 Id. at 1:36

- 38.

38 Id . at 1:40.

39 Id . at 1:42.

40 Id . at 4:32.

41 Id . at 4:50.9

The video then showed Corporal Schultz administering the field sobriety tests
on Appellant. 42 While administering th e HGN test, Corporal Schultz instructed
Appellant not to move his head

. 43 She had to repeat that instruct ion several times. 44

The video also showed Appellant performing the heel

- to

- toe test, the walk

and turn test, the one

- legged test , and undergoing the PBT

. 45 While waiting for the
administration of the PBT test, Appellant informed Corporal Schultz that his par ents

were on vacation in Mexico 46 and they then conversed about parents and Mexico.
After performing the PBT, Appellant twice asked the officer , “How bad is it?” 47

The video recorded Corporal Schultz informing Appellant that he was going
to be “coming” with her for “suspicion of DUI.” 48 Appellant responded, “there’s no

suspicion, I like, I admitted to

- - .” 49 Corporal Schultz then explained that she was
taking Appellant to police headq uarters for him t o blow into an Intoxilyzer. 50

42 Id . at 5:28.

43 Id . at 616.

44 Id . at 6:21; 6:33

- 36; 6:50; 7:13; 8:07.

45 Id . at 10:15

- 14:12.

46 Id . at 16:06.

47 Id. at 20:14; 20:50.

48 Id . at 21:07.

49 Id . at 21:10.

50 Id . at 21:24.10

Throughout the duration of the video, Appellant made numerous profanit y

laced comments lamenting that he messed up, he should have stayed home, and he
should have used Uber or Lyft instead of driving

. 51

On cross

- examination, Corporal Schultz agreed that Appellant’s speech was
“good,” he was “cooperative,” and he “was pleasant to deal with.” 52 She also
acknowledged that a lack of sleep, toxins, or cigarette smoke could cause bloodshot

eyes ; 53 confirmed that the damage caused by the accident was “[f]airly minor ; ” noted

that the street where the acc ident occurred was so narrow that two cars could not
pass at the same time; 54 and said that Appellant’s “balance was pretty much

excellent.” 55

51 The video recorded Appellant making comments that include:
“I really just fu cked up my whole life, didn’t I ? ” Id . at 7:05.
“I really just fucked up my life. I suck as a human. I should have just stayed home. I should have just stayed home

... No, I fucked up. I know I did. And like my life is fucking ruined. ” Id

. 7:39.
“I should have just Uber’d here.” Id. at 8:2 8.
“I should have fucking just Lyft’d here.” Id . at 17:36.
“I know I fucked up.” Id . at 18:53.

52 Suppression Hearing Transcript
, at 33.

53 Id. at 34

54 Id.

55 Id . at 35.11

Corporal Schultz conceded that the body camera video did not capture
Appellant’s eyes during the HGN test 56 and that Appellant “was good” on the first

nine steps of the heel

- to

- toe test 57 (however, she note d that A ppellant failed to touch

heel

- to

- toe on step 7/8 during the second nine steps )

. 58 Corporal Schultz also stated
that Appellant started the heel

- to

- toe test too soon after she had instructed him not

to move. 59 She confirmed that she observed no clues during the one

- legged stand

test. 60 In addition, she testified that
, although she waited fifteen minutes to

administer the PBT, she left Appellant and went back to her patrol car at some point

while another officer obse rve d Appellant. 61

After Corporal Schultz’s testimony, the Trial Court noted that there had been
no testimony or records submitted that the PBT was calibrated and working properly
as required by Delaware law. 62 The State conceded that it had not m et this

56 Corporal Schultz explained that she is short in stature an d that, as a result, her body camera is not always position ed high enough to capture a person’s eyes. Id . at 43.

57 Id . at 38.

58 Id.

59 Id. at 39.

60 Id.

61 Id . at 39

- 40. The record does not reflect the name of the other officer.

62 Id . at 47

- 48.12

requirement

. 63 The Trial Court also noted that Corporal Schultz did not testify as to
her training or the N HTSA requirements concerning the walk

- and

- turn test and the

one

- legged stand test. 64

On October 16, 2019, the Trial Court issued a written Opinion wherein it

denied A ppellant’s Motion to Suppress. 65 In its finding of facts, the Trial Court
found that Appellant was unable to produce his driver’s license, admitted that his

license was suspended due to a prior DUI, smelled of alcohol, h ad bloodshot eyes,
and admitted to drinking alcohol on the day in question. The Trial Court also found
that Appellant “admitted to backing up too quickly and striking a parked car.” 66
Additionally, it found that Appellant “made statements using expletive language
describing how bad he messed up; that he should have taken an Uber or Lyft, and

that he ruined his life.” 67 The court also noted that Appellant had difficulty following
instructions during the HGN test. 68

63 Id

.

64 Id . at 51.

65 Trial Court’s October 16, 2019 Opinion.

66 Id. at 3.

67 Id

.

68 In its fact

- finding section, the Trial Court noted that during the administration of the HGN test Appellant continued to speak and repeatedly moved his head after Corporal Schultz repeatedly told him to remain silent and still. Id . at 3. Although the Trial Court disregard ed the results of the HGN test, i t stated that Appellant’s non

- cooperative conduct during the administration of the HGN13

The Trial Cou rt, however, exclude d the field sobriety tests and the PBT based

on t he State ’s fail ure to present evidence that those tests were administered in

comp liance with the NHTSA standards 69 and failure to lay the proper foundation to

establish that the PBT machine was calibr ate d and that Corporal Schultz was
properly trained on its operat ion

. 70

Nevertheless, the Trial Court found probable cause because it “need not rely

on the validity of the field sobriety tests in making its determination regarding the
existence of probabl e cause.” 71 The Trial Court held that probable cause existed
based on Corporal Schultz’s observations that:

(1) Defendant was driving a motor vehicle under a suspended license and while doing so struck a parked car; (2) Defendant was unable to provide a valid driver’s license to Corporal Shultz [sic]; (3) Defendant admitted to Corporal Schultz he was drinking alcohol; (4) Corporal Shultz [sic] observed that Defendant smelled of alcohol; (5) Corporal Shultz [sic] observed Defendant’s eyes were bloodshot. In addition, Defendant’s inability to cooperate with Corporal Shultz’s [sic] administration of the HGN test, Defendant’s nervous chatter and numerous quasi

- admissions weigh against Defendant in determining probable cause under the totality of the circumsta nces. Here, there was substantial basis for Corporal Shultz [sic] to conclude that probable cause existed to effectuate an arrest. 72

test weighed against Appellant in a determination of probable cause under the totality of the circumstances. Id . at 10.

69 Id

. at 7

- 9.

70 Id. at 8

- 9.

71 Id . at 9.

72 Id. at 10, citing Bease v. State , 884 A.2d 495, 500 (Del. Sept. 29, 2005).14

On January 27, 2020, a trial was held and the Trial Court convicted Appellant

. Corporal Schultz again testified for the State. Appellant did not testify or call any

witnesses.

At trial, Appellant did not contest that he opera ted a motor vehicle at .157

BAC

. 73 Also, Appellant stipulated
, and Corporal Schultz testified , as to Corporal

Schultz’s training and experience on the Intoxilyzer machine , the Intoxilyzer’s

calibration records, the administration of the Intoxilyzer test, the results of the test
, and Appellant’s .157 BAC

. 74

The Trial Court noted that Corporal Schultz was the only fact witness and that
there were “no credibility issues with Corporal Schultz, and in fact, her testimony

was largely confirmed by her body

- worn camera.” 75

On January 30, 2020, a few days later, Appe llant filed his Notice of Appeal

with this Co urt

. On March 25, 2020, Appellant filed his Opening Brief.
On April 23, 2020, t he State filed its Answering Bri ef.
On May 7, 2020, Appellant filed his Reply Brief.

73 Trial Transcript, at 3

- 4.

74 Id . at 7

- 8.

75 Id . at 19.15 T he Parties’ Contentions
Appellant asserts that the Trial Court’s determination of probable cause was
“unsupported by the totality of the circumstances.” 76 Appellant contends that he was

in command o f his actions , his quasi

- admissions were ambiguous, and he was
cooperative.
Appellant asserts that the totality of the circumstance reflect that he “had no

difficulty in presenting his documents to Corporal Schultz when she first approached
him;” “he was not confused as to what documents he provided;” “he did [not] fumble

or show a lack of dexterity;” and he “volunteered that he had a prior DUI and was
still suspended.” 77 In addition, Appellant states that he “further volunteered that he

had a State I.D. card which he provided to Corporal Schultz, along with his valid

insurance car d and car registration plus the paperwork from his prior DUI arrest.” 78

Moreover, Appellant argues
, although Corporal Schultz’s body came ra
recorded Appellant ’s admission that he had been drinking, there was “no testimony

that [Appel lant] admitte d drinking alcohol ” 79 and that although the officer “testified
that she observed an odor of alcohol emanating from [Appellant’s] person, she did

76 Appellant’s Opening Brief, at 7.

77 Id. at 7

- 8.

78 Id. at 8.

79 Id.16

not testify that the odor was from his breath.” 80 Appellant further contends that there
was no allegation that his eye s were glassy, wa tery, or dazed, his bloodshot eyes do

not appear to be extreme on the body camera footage
, and the incident occurred in
the early morning.
Additionally, Appellant disputes the c onclusion that he was unable to
cooperate with Corporal Schultz’s administra tion of the HGN test because the
finding was based merely on Corporal Schultz’s “gently instructing [Appellant] to

keep his head still while he tracked her pen with his eyes [and t hat] [h]is head barely

moved on those occasions.” 81 Furthermore , Appellant states that his “nervous

chatter and numerous quasi

- admis sions” are no more indicative of an impairment

than “ any driver’s proclamation that he/she is perfectly fine to drive despit e
overwhelming objective evidence to the contrary.” 82 Appellant writes that his ability

to engage in a “very normal conversation" with Corporal Schultz ( about his parents

and Mexico) means that Appellant was not impaired. 83

Appellant then cites a series of cases to support his claim that there was

insufficient pr obable cause under the totality of the circumstances ( State v. Dale,

80 Id . (internal quotation marks removed).

81 Id. at 8.

82 Id. at 8

- 9.

83 Id . at 9.17

State v. Sexton, and State v. Beheler )

. 84 Appellant writes that, i n State v. Dale
, 85 the
Delaware Superior Court found insufficient probable cause where the defendant was
stopped for speeding, had a moderate odor of alcohol, bloodshot eyes at 5:30 a.m.
, flunked the alphabet test, and was wea ring his sweatshirt inside

- out , was not

eng aging in erratic driving or fumbling
, and was cooperative while exhibiting fair
speech and normal face color

. Appellant also writes that in State v. Sexton
, 86 the Delaware Court of Common
Pleas “found insufficient probable cause in a two vehicle accident of undetermined

cause, odor of alcohol, glassy eyes, and admission to drinking at an unspecified time,
juxtaposed with the absence of any egregious driving, st umbling or trouble
balancing, behavioral abnormalities, disheveled appearance, slurred speech or

flushed face.” 87

Lastly, Appellant states that the Court of Common Pleas in State v. Beheler 88

declined to find probable cause based on the facts tha t the defendant “took a wide

turn and drove on the wrong side of [the] road for 2/10 of a mile, exhibited a

84 Citations are provided as discussed.

85 State v. Dale , 2016 WL 691445 (Del. Super. Feb. 11, 2016).

86 State v. Sexton , 2020 WL 755172 (Del. Com. Pl. Feb. 14, 2020).

87 Appellant’s Opening Brief, at 10.

88 State v. Beheler , 2010 WL 2195978 (Del. Com. Pl. Apr. 22, 2010).18

moderate odor of alcohol and watery eyes, slightly lost balance while exiting [the]
car on a dark night and slanted road, [and] passed the alphabet, finger dexterity and
counting backwards tests...” 89

Appellant additionally argues that the to tality of the circumstances do es not
constitute probable cause. He contends that the body camera video “dispels any
notion” that he was “an impaired driver , notwithstanding that he bumped a parked
car while backing out on [a] narrow residential street at dawn.” 90 He contends that
there was “no indication that his consumption of alcohol the night prior was a

factor .” 91 He also asserts that he exhibited “normal coherent speech; his eyes were

barely bloodshot; he was in full command of his faculties; his clothing was orderly;
his balance and coordination were normal; and he was pleasant and cooperative.” 92

Appellant also notes that the Trial Court , after viewing the body camera video at the
Suppression Hearing , commented that Appellant held his arms at his sides without
swaying.
The State argues that the Trial Court did not err in denying Appellant’s Motion

to S uppress. The State assert s that past decisions of Delaware Courts have found

89 Appellant’s Opening Brief, at 10

- 11.

90 Id . at 11.

91 Id

.

92 Id.19

that a defen dant’s involvement in a vehicular accident, a traffic violation, bloodshot
eyes, odor of alcohol, admission to drinking, nervous behavior, failure to comply

with inst ructions, and quasi

- ad missions were factors supportive of probable cause

for a DUI arr est. 93 The State submits that the se factors are present in the instant case
and the Trial Court properly relied on these factors in its determination of probable

cause.
In addition, the State argues that the Trial Court’s finding was supported by

sufficient evidence. The State explains that Appellant admitted that he was at fault
in the accident, he admitted that he was driving while his license was suspended,
Corporal Schultz testified that she detected the odor of alcohol emanating from
Appellant, Appellant admitted that he had been drinking, he exhibited nervous
chatter, he repeatedly made profanity

- laced statement s , he was unable to keep his

head still, and he made quasi

- admissions. The State contends that “there is no
authority to support Appellant’s claim that his balance and coordination observed on
the video during the tests should negate a finding of probable cause.” 94
In his reply, Appellant argues that the factors cited by the State are “either not

supported by the record or are de minimis , when juxtaposed against the totality of

93 Citing Rybicki v. State, 119 A.3d 663, 669 (Del. July 20, 2015); Lefebvre v. State , A.3d 287, 293 (Del. Apr. 26, 2011); Jenkins v. State , 970 A.2d 154, 158

- 59 (Del. Apr. 6, 2009); State v. Cohan
, 2013 WL 5494718, at * 4 (Del. Com. Pl. Oct. 1, 2013).

94 The State’s Answer, at 17.20

the circumstance that do not reflect impairment.” 95 Appellant contends that the

accident was minor and occurred on a narrow residential street; there is no evidence
that Appellant’s decision to drive on a suspended license was linked to impaired

poor decision

- making; Appellant was transparent to Corporal Schultz that he had a
prior DU I and that his license was suspended; Appellant provided his State I.D. card,
insurance card, car registration, and prior DUI paperwork ; Appellant’s bloodshot

eyes were “ negligible ” 96 and it was dawn; and Corporal Schultz acknowledged that
bloodshot eyes ca n be caused by reasons other than alcohol.
Moreover, Appellant maintains that Corporal Schultz did not specify that she
detected alcohol odor from Appellant’ s breath (just from his person) and, because
Appellant admitted to drinking “at some poin t prior to the accident, it would make
sense that his person and clothing would emit an odor of alcohol. ” 97 Appellant
further states that “an odor of alcohol, by itself, is insufficient, particularly when the
extent of consumption is unknown.” 98 He also arg u es that the record is unclear

95 Appellant’s Reply at 2.

96 Id. at 3.

97 Id . at 3.

98 Id

. Citing Esham v. Voshell , 1987 WL 8277 (Del. Super. Mar. 12, 1987); Lefebvre v. State , 19 A.3d 287, 293 (Del. 2011).21

whether Appellant’s admission to drinking meant that it occurred shortly before the

accident or hours earlier.
Concerning his nervous behavior, Appellant argues that it was minimal and
pleasant in tone . He states that he was not fidgety, rambling, and was never off

topic. He says that he was “aware that he was detained, and aware of the

neighborhood residents milling about and watching the police administer field

tests.” 99 Appellant assert s that the C ourt has held that it is not unusual for motorists
to exhibit nervousness when confronted by a police officer. 100 Appellant also
contends that the body camera video is not supportive of the Trial Court’s finding

that Appellant was unable to comply with Corp oral Schultz’s instructions and that

the State has not identified which instruction Appellant failed to follow.
Lastly, Appellant states that his “quasi

- admissions of poor judgment” are not

relevant because those remarks were not supported by ob jective evidence, such as
other indicators of impairment. 101 Appellant states that he “may have been unfairly

harder on himself than necessary in an effort to curry favor with [Corporal]

Schultz.” 102

99 Id . at 4

- 5.

100 Id

. Citing State v. Chandler , 132 A.3d 133, 144

- 45 (Del. Super. 2015).

101 Appellant’s Reply Brief, at 6.

102 Id

.22 Standard of Review

Under 11 Del. C. § 5301(c) a defendant may appeal a Court of Common Pleas

decision to this Court. 103 Th e role of thi s Court is to correct errors of law and to
review the factual findings of the Trial Court to determine “if they are sufficiently

supported by the record and are the pr oduct of an orderly and logical deductive
process.” 104 Errors of law will be reviewed de novo ; findings of fact are given

deference and reviewed for clear error. 105 “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.” 106

When reviewing a determination of probable cause, “the trial court’s findings

of historical fact [concerning the events leading up to the arrest] are reviewed under
the deferential clearly erroneous standard, but its conclusion as to probable cause, or

103 11 Del. C. § 5301(c) states:
From any order, rule, decision, judgment or sentence of the Court in a criminal action, the accused shall have the right of appeal to the Superior Court in and for the county wherein the information was filed as provided in § 28, article IV of the Co nstitution of the State . Such appeal to the Superior Court shall be reviewed on the record and shall not be tried de novo.

104 Burris v. Beneficial Delaware, INC. , 2011 WL 2420423, at *1 (Del. Super. June 9, 2011).

105 Auwerda v. State , 2017 WL 2729561, at *6 (Del. Super. June 19, 2017).

106 Klinedinst v. CACH, LLC , 2015 WL 3429941, at 3 (Del. Super. May 22, 2015), citing Fiori v

. State, 2004 WL 1284205, at *1 (Del. Super. May 26, 2004)

.23

more specifically its application of the law of search and seizure to those historical

facts, is considered de novo .” 107

Discussion
“Probable cause is determined by the totality of the circumstances and requires
a showing of a probability that criminal activi ty is occurring or has occurred.” 108 The
Delaware Supreme Court has held:

P robable cause exists where the facts and circumstances within the police officer's knowledge, and of which the police officer had reasonably trustworthy information, are sufficient in themselves to warrant a person of rea sonable caution to believe that an offense has been or is being committed. 109

Furthermore, t he State bears the burden of “establishing that there was

probable cause of driving under the influence of alcohol ” to require a DUI defendant
to submit to an Intoxilyzer test. 110 To satisfy its burden, “the State must establish
only the probability, and not a prima facie showing of criminal activity.” 111 “Even

107 State v. Iyer , 2011 WL 976480, at *6 (Del. Super. Feb. 23, 2011) (internal quo tation marks removed). See also Jenkins v. State , 970 A.2d 154, 157 (Del. Apr. 6, 2009) (“In reviewing a trial

cou rt’s decision on a motion to suppress, we evaluate the court’s legal conclusions de novo . We review factual findings to determine whether the trial judge abused his or her discretion in determining whether there was sufficient evidence to support the find ings and whether those findings were clearly erroneous.”) (internal quotation marks removed).

108 Bease v. State , 884 A.2d 495, 498 (Del. 2005).

109 Id

.

110 Id.

111 Iyer , 2011 WL 976480, at *6 (internal quotation marks removed).24

when any one fact, considered in isolation is insufficient, if, under the totality of the
circumstances, the collective facts suggest a fair probability that the defendant has
committed a crime, then the State has established probable cause.” 112

Upon thorough review of the record, t his Court conclude s that the Trial

Court’s finding of p robable cause to subject Appellant to the Intoxilyzer test i s

proper

. The Trial Court found that Appellant admitted to drinking, 113 smelled of

alcohol, 114 had bloodshot eyes, 115 was unable to provide a valid driver’s license, 116

caused a vehicular accident while driving on a suspended license, 117 and displayed

112 Id . (internal brackets removed) (internal quotation marks removed). See also State v. Maxwell
, 624 A.2d 926, 930 (Del. May 21, 1993) (“A finding of probable cause does not require the police to uncover information sufficient to prove a suspect’s guilt beyon d a reasonable doubt or even to prove that guilt is more likely than not.”); State v. Hughes , 2003 WL 21213709, at *2 (Del. Super. May 6, 2003) ( “Although the facts considered in isolation may be insufficient to establish probable cause, when viewing the f acts in the totality of the circumstances it appears that the police possessed enough trustworthy information to warrant a man of reasonable caution to conclude that [the defendant] was driving under the influence...”).

113 Appellant states that Corporal Schultz asked him, “Have you been drinking this morning? ” Appellant admits that he responded, “Yes... it’s my birthday tonight.” Appellant’s Reply, at 4.

114 Appellant conce des that “[b]ecause [he] admitted drinking at some point prior to the accident, it w ould make sense that his person and clothing would emit an odor of alcohol.” Id. at 3.

115 Appellant does not deny that his eyes were bloodshot but argues that it was “negligible.” Id . at 3.

116 Appellant admits that he informed Corporal Schultz that his d river’s license was suspended for a prior DUI. Appellant’s Opening Brief, at 7

- 8.

117 Appellant admits that he informed Corporal Schultz that he was at fault in the accident. Id . at 2.25

nerv ous behavior. 118 The Tria l Court also found that Appellant’s numerous quasi

admissions 119 and difficulty in cooperating with Corporal Schultz weigh ed against
Appellant in determining probable cause under the totality of the circumstances.
(Additionally, a neighbor watched Appellant operate the offending vehicle). Pursuit

to Delaware case law, these factors were sufficient to establish probable cause to
administer an Intoxilyzer test on Appellant. 120

Furthermore, the Trial Court’s factual findings are supp orted by
substantial evidence. The Trial Court based its findings on the testimony of Corporal

Schultz and the body camera video that accurately reflected her recollection of the

i ncident. Appellant does not challenge the credibility of Corporal Schultz’s

testimony or the accuracy of the body

- cam video

. 121

118 Appellant concedes that he engaged in “nervous chatter,” but he char acterizes it as “minimal and pleasant in tone.” Appellant’s Reply, at 4.

119 Appellant acknowledges that he made “quasi

- admissions of poor judgment” but he argues that he “may have been unfairly harder on himself than necessary in an effort to curry favor with Cpl. Schultz.” Id . at 6.

120 See State v. Maxwell , 624 A.2d 926, 930

- 31 (Del. May 21, 1993) (In reversing and remanding, the Delaware Supreme Court held that two witnesses informing the police that the defendant admitted to drinking, one witness info rming the police that the defendant appeared dazed, the defendant being involved in a single

- vehicle accident, and the overturned vehicle having a strong odor of alcohol and several empty and full containers of beer was a sufficient set of facts to establi sh probable cause for the purposes of obtaining a blood alcohol test of the defendant.).

121 In fact, in his appeal, Appe llant is satisfied that the video accurately shows his interaction s with Corporal Schultz. Appellant writes that “[t]he body camera fo otage dispels any notion that [Appellant] was an impaired driver.” Appellant’s Opening Brief, at 6. He appears to assert , in an attempt to support his argument, that the body camera accurately recorded that Appellant maintained normal balance, exhibited normal coherent speech, was in full control of his faculties,26

In Bease v. State , the Delaware Supreme Court found probable cause where
the “record reflect[ed]” that the defendant in that case “spoke in a rapid manner [to

the officer], smelled of alcohol, admitted th at he consumed alcoholic beverages the
night before, had bloodshot and glassy eyes, and had just committed a traffic
violation by making an improper lane change in an abrupt manner.” 122 The Delaware
Supreme Court held that, based upon these facts, there exi sted “a quantum of
trustworthy factual information, ‘sufficient in themselves to warrant a man of
reasonable caution’ to conclude that probable cause existed to believe that [the

defendant] was driving under the influence of alcohol at the time [the office r]
stopped him.” 123

In State v. Iyer
, a cooperative defendant’s watery and glassy eyes, moderat e
odor of alcohol, involvement i n a single

- vehicle accident, and admission to drinking
hours before the accident established probable cause. 124 This Court held that these

and was pleasant and cooperative. Id. at 6. He also states that the video shows that his bloodshot eyes were “negligible.” Id . at 3.

122 Be ase v. State , 884 A.2d 495, 499

- 500 (Del. Sept. 29, 2005). Although Appellant notes that the defendant in Bease failed an additional test

- the alphabet test, t he Delaware Supreme Court wrote that “[i]n its analysis, the Superior Court considered: Bease’s abrupt driving movement, the odor of alcohol on his breath, his glassy and bloodshot eyes, and his admission to having consumed beer or chardonnay the night before.” Id . at 498. The Delaware Supreme Court then listed these factors in its holding that the record reflected sufficient evidence “to establish probable cause for administration of the intoxilyzer test...” Id

.

123 Id (internal quotation marks removed).

124 State v. Iyer , 2011 WL 976480, at * *1, 13 (Del. Super. Feb. 23, 2011).27

facts were “sufficient in themselves to warrant a person of reasonable caution to

believe that [the defendant] was driving under the influence of alcohol at the time of

the accident.” 125 This Court further stated that the totalit y of these circumstances
“undoubtedly established a fair probability, as a matter of law, the [the defendant]

was driving under the influence of alcohol separate and apart from the field tests and

the PBT.” 126

Moreover, t he cases cited by Appellant in support of t his appeal are
distinguishable from the instant case. I n State v. Dale , this Court granted the
defendant’s motion to suppress when it found that a DUI defendant’s “bloodshot

eyes at 5:30 a.m.,...[an] inside out and backwards [shirt] ,... a moderate smell of

alcohol ”
, and failure to properly perform an alphabet test 127 were insufficient to

125 Id . (original brackets removed).

126 Id . (internal quotation marks removed).

127 In Dale , the Court noted that the defendant failed to properly perform the alphabet test. The Court in Dale wrote that the defendant was asked by the officer to “say the alphabet starting with C and ending with P.” State v. Dale , 2016 WL 691445, at *3 (Del. Super. Feb. 11, 2016). The defendant simply stated “C and P.” Id. The Court concluded that the defendant “either misunderstood the instr uctions or failed the alphabet test” but that he “completed the number counting test with no issue.” Id

.28

suppo rt a findi ng of probable cause. 128 However, the Court noted that those facts

were “close” to being sufficient for a finding of probable cause. 129

Here, a s previously discussed, i n ad dition to having bloodshot eyes and
smelling of alcohol, Appellant readily admitted to drinking on the morning of the

incident
, admitted to causing a vehicle accident, was driving on a suspended license,

was unable to produce a driver’s license
, 130 made incriminating statements, and
engaged in nervous chatter

.

I n State v. Sexton
, 131 the Court of Common Pleas found that proba ble cause

did not exist when there was a two

- vehicle accident of undetermined cause, an odor
of alcohol, glassy eyes, and admission to drinking at an unspecified time. 132

Particularly important to t he court in Sexton was the fact that there were two parties

involved in the accident and there was no evidence that the defendant “caused the

accident or otherwise committed a traffic offense.” 133 In addition, the court noted

128 In the fact section, the Court in Dale noted that the defendant initially denied drinking but “later stated that he had been.” Id . at *1. When discussing whether the facts were sufficient for probable cause, the Court did not include the defendant’s admission to drinking.

129 Id . at *4.

130 In Dale , the Court noted that the defendant was able to produce his driver’s license and he was not driving erratically or aggressively. Id . at *1.

131 State v. Sexton , 2020 WL 755172, at *4 ( Del. Comm. Pl. Feb. 14, 2020).

132 Id.

133 Id . at *3.29

that there was no evidence indicating the proximity in time of the drinking to the

accident, and the court found that “ [a]bsent a time marker of when alcohol was
consumed, no rational inference can be drawn regarding intoxication.” 134

In contrast , Appellant was involved i n a single

- vehicle accident where he

admitted fault. Moreover , he committed a traffic offense at the time of the accident
(driving with a suspended license) . Furthermore
, Appellant ’s disclosure that he had
been drinking on the morn ing of the incident served as a time ma r ker as to when

alcohol was consumed, which allowed for a rational inference regarding Appellant’s

intoxication. 135

Similarly, State v. Beheler is also not helpful to Appellant’s case. 136 In

Beheler , the Court of Common Pleas held that the moderate smell of alcohol on the
breath, watery e yes, and admission of alcohol consumption was insufficient to
establish probable cause. 137 However, the factors in the instant case, as discussed

above, are significantly more than those present ed in Beheler

. 138

134 Id

.

135 See footnote 113

.

136 State v. Beheler , 2010 WL 2195978, at *4 (Del. Comm. Pl. Apr. 22, 2010).

137 The Court of Common Pleas also noted that the defendant was not driving erratically and that the defendant’s loss of balance while exiting his truck occurred when it was dark and that the road was slanted and the truck was elevated. Id

.

138 Appellant cau sed a vehicle accident, dr ove on a suspended license, behaved nervously, and made incriminating statements.30

In addition , Appellant’s contention that the totality of the evidence precludes

a determination of probable cause is without merit. Appellant appea rs to argue that
his presentation of relevant documents without difficulty; appropriateness of the

documents provided; volunteer ing his driving transgressions; his ability to engage

in a “normal conversation”; 139 the absence of disheveled clothing ; normal balance

and coordination; and a non

- combative d emeanor should tip the balance against a
finding of probable cause .” 140

However, the determination as to the existence of probable cause must be

based on a consider ation of the totality of the circumstances and not only on the facts

that are favorable to a defendant. 141 I n Lefebvre v. State , the Delaware Supreme

Court held that probable cause existed under the totality of the circumstances despite
the fact that the defendant had fair speech and passed the field sobriety tests. 142

Similarly, in Slaney v. State , this Court rejected a DUI defendant’s argument that
“probable cause would not have been established” had the trial court considered the
defendant’s “cognitive clarity, demeanor, speech fluency, memory, balance,

139 Appellant’s Opening Brief, at 7

- 9.

140 Id . at 11.

141 Miller v. State , 4 A.3d 371, 373

- 74 (Del. June 7, 2010).

142 Lefebvre v. State , 19 A.3d 287 (Del. Apr. 26, 2011).31

explanation for consumption of alcohol [and] circumstances of consumption.” 143

The Court in Slaney held that the fact that the defendant “was cognitively aware of
the situation and able to balance does not negate a finding of probable cause.” 144

So too, here, in light of the numerous facts indicating that Appellant was
driving under the influ ence, other facts that arguably show that Appellant had a
degree of control over his faculties and was aware of the situation do not negate
probable cause.
Lastly, Appellant’s suggestion that there could have been innocent
explanation s fo r some of the facts considered to establish probable cause ( including
bloodshot eyes, 145 the single

- vehicle accident, 146 and his quasi

- admissions ) 147 does
not negate probable cause. 148 T he law is clear that “[h]ypothetically innocent
explanations for facts learned during an investigation do not preclude a finding of

143 Slaney v. State , 2016 WL 5946485, at *6 (Del. Super. Oct. 7, 2016).

144 Id

.

145 It was early in the morning.

146 The street was narrow.

147 Appellant was hard on himself to curry favor with Corporal Schultz.

148 State v. Hughes , 20 03 WL 21213709, at *2 (Del. Super. May 6, 2003) (“[T]he fact that there may be an innocent explanation for some of those facts... does not negate the officers finding of probable cause.”).32

probable cause.” 149 As such
, the officer was not required to “rule out potentially
innocent, alternative explanations” for Appellant’s incriminating conduct and

ap pearance before subjecting Appellant to the Intoxilyzer test

. 150

Conclusion
Accordingly, for the foregoing reasons, the decision of the Court of Common

Pleas is AFFIRMED.

/s/Diane Clarke Streett Diane Clarke Streett, Judge

149 Stafford v. State , 59 A.3d 1223, 1229 (Del. Dec. 4, 2012); Lefebvre v. State , 19 A.3d 287, 293 (Del. Apr. 26, 2011) ( “That hypothetically innocent explanations may exist for facts learned during an investigation does not preclude a finding of probable cause.”); State v. Iyer , 2011 WL 976480, at *13 (Del. Super. Ct . Feb. 23, 2011) (“The police investigation of an automobile accident is not required to eliminate possible innocent explanations for facts that militate towards the existence of probable cause.”).

150 Rybicki v. State , 119 A.3d 663, 671 (Del. July 20, 2015 ).