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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

v.

LAUREN BENDER,

Defendant.

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) I.D. No. 2201003902

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Date Submitted: July 21, 2023

Date Decided: August 11, 2023

Upon Defendant’s Motion to Suppress. DENIED.

ORDER

Alexandra L. LeRoy, Esquire, Deputy Attorney General, Department of Justice, 

Wilmington, Delaware, Attorney for the State of Delaware.

Joseph A. Hurley, Esquire, Wilmington, Delaware, Attorney for Defendant. 

SCOTT, J.
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Introduction

Before the Court is Defendant Lauren Bender’s (“Defendant”) Motion to 

Suppress, brought by counsel. Defendant Lauren Bender was indicted for driving 

under the influence (“DUI”) under 21 Del. C. § 4177(a).1 Presently before the Court, 

Defendant has moved to suppress the results of a portable breathalyzer test (“PBT”) 

and all evidence collected after her arrest, arguing that the arresting officer lacked 

probable cause. The Court has reviewed the motion and the State’s response and 

held a suppression hearing. For the following reasons, the Defendant’s Motion is

DENIED.

Findings of Fact

On January 12, 2022, a Newark Police Officer (“Arresting Officer”) observed 

Defendant’s vehicle run a red light at the intersection of Veterans Drive and South 

Main St. in Newark, Delaware. Subsequently, Arresting Officer initiated a traffic 

stop on Defendant. The incident was recorded on video through Arresting Officer’s 

motor vehicle recorder and body worn camera, such video footage of the stop and 

subsequent investigation has been submitted and reviewed by this Court. Upon 

speaking with Defendant after initiating the stop, Arresting Officer observed

Defendant’s eyes were bloodshot and glassy, and her face flushed. In addition, 

Arresting Officer maintained Defendant’s speech was slurred, and she was “talkative 

1 See Indictment, State v. Bender, ID No. 2201003902 (D.I. 2).
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and giggly.” Further, Arresting Officer observed what he believed to be the top of 

a liquor bottle under a dog bed on the backseat floorboard of the vehicle. 

Upon the above observations, Arresting Officer directed Defendant to recite 

a portion of the alphabet and count backwards from 76-61. Defendant failed to 

perform tests as instructed. After Defendant stepped out of the vehicle, Arresting 

Officer administered a Horizontal Gaze Nystagmus (“HGN”) test. Arresting Officer

observed 6 of 6 clues that were indicative of impairment. 

Next, Arresting Officer instructed Defendant to perform a Walk and Turn and 

One Leg Stand test. When asked whether she had any physical or medical condition 

that would prevent her from completing the tests, Defendant informed Arresting 

Officer that she had numbness in her feet. Defendant performed the Walk and Turn 

test, and Arresting Officer observed 7 clues, which, according to the National 

Highway Traffic Safety Administration (“NHSTA”), suggests impairment. When 

asked to perform the One Leg Stand test, Defendant initially declined. Defendant, 

however, eventually complied and failed that test as well. 

After failing both the Walk and Turn and One Leg Stand tests, Arresting 

Officer administered a PBT which resulted in a .189% blood alcohol content. A 

subsequent search of Defendant’s vehicle revealed an empty bottle of vodka under 

the passenger seat and a half-empty bottle of vodka underneath a dog bed on the 
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backseat floor. Arresting Officer placed Defendant under arrest and transported her 

to Newark Police Department, where Defendant failed an intoxilyzer test. 

Defendant filed her motion to suppress on April 11, 2023, to which the State 

responded on May 5, 2023. Hearing on this issue was held on July 21, 2023.

Discussion

Defendant moves to suppress the PBT results and all evidence recovered after 

her arrest (including the intoxilyzer results) on the ground that Arresting Officer

lacked probable cause to administer the PBT. To support her contention, Defendant 

challenges the validity or administration of four sobriety tests conducted by 

Arresting Officer. First, Defendant contends that the alphabet and counting test lack 

scientific merit to accurately evaluate impairment by drugs or alcohol. Second, 

Defendant claims that Arresting Officer improperly required a Walk and Turn and 

One Leg Stand test because Defendant’s physical and medical conditions prevented 

her from adequately completing either test.

A breath test is a search and thus, triggers “Fourth Amendment requirements 

and protections.”2 Subject to those constitutional protections, a police officer must 

have probable cause to believe a person is driving under the influence “before 

requiring the person submit to chemical testing.”3

2 Bease v. State, 884 A.2d 495, 498 n.4 (Del. 2005).

3 Lefebvre v. State, 19 A.3d 287, 292 (Del. 2011).
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Probable cause is determined by the totality of the circumstances and requires 

a showing of a probability that criminal activity is occurring or has occurred.4

Probable 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 reasonable caution to believe that 

an offense has been or is being committed.5In the context of a DUI arrest, probable 

cause “exists when an officer possesses ‘information which would warrant a 

reasonable man in believing that [such] a crime ha[s] been committed.’”6 This 

standard is satisfied upon a factual showing, when viewed under the totality of the 

circumstances, suggesting “a fair probability that the defendant has committed a DUI 

offense.”7 Stated differently, the arresting officer must “possess a quantum of 

trustworthy factual information” to suggest that the driver is under the influence.8

Here, Defendant challenges the validity or use of the (1) alphabet test; (2) 

counting test; (3) Walk and Turn test; and (4) One Leg Stand test. Setting aside all 

4 State v. Maxwell, 624 A.2d 926, 928 (Del.1993).

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Id. at 930 (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 

93 L.Ed. 1879 (1949)).

6 Lefebvre, 19 A.3d at 292 (quoting Clendaniel v. Voshell, 562 A.2d 1167, 1170 

(Del. 1989)).

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Id. at 292-93 (internal quotation marks omitted).

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Id. at 293.
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other purported observations made by Arresting Officer suggesting that Defendant 

was impaired, Defendant’s arguments lack merit. 

To the extent Defendant challenges the scientific reliability of the alphabet or 

counting test, those tests have been routinely used by police and routinely recognized 

by Delaware courts as permissible to establish probable cause for a DUI offense. 

Defendant argument references no authority—scientific, legal, or otherwise—to 

contest the validity of these sobriety tests.

Similarly, Defendant’s challenge to Arresting Officer’s use of the Walk and 

Turn and One Leg Stand test is unavailing. Defendant claims that police officers are 

not permitted to administer such tests when a suspect provides a limiting physical or 

medical condition. Despite claiming that “NHTSA [guidelines] and Delaware case 

law” support her position, Defendant again fails to provide any supporting 

authority.9

Contrary to Defendant’s categorical position, this Court, in Slaney v. State, 

rejected a “blanket rule” excluding results from a Walk and Turn and One Leg Stand 

test whenever a suspect discloses a physical or medical condition allegedly 

preventing them from completing either test.10 Instead, trial courts are afforded 

9 Def.’s Mot. to Suppress ¶ 9.

10 Slaney v. State, 2016 WL 5946485, at *4 n.65 (Del. Super. Ct. Oct. 7, 2016) (“The 

Court does not accept this blanket rule, for such a policy would inevitably encourage 

those suspected of DUI to disclose any injury that he or she has ever incurred to 

prevent an officer from administrating field tests regardless of whether the injury 
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discretion to weigh the evidentiary value of the sobriety tests based on the record 

presented.11 “Failed sobriety tests may be held to be unsupportive of probable cause 

when proper instructions are not given, the test is administered in a rushed manner, 

the defendant is not physically amenable to the test, or the officer otherwise fails to 

observe the NHTSA standards of administration.”12

Here, Defendant claims that she suffered from numbness in her feet and was 

unable to perform either test. A determination of the underlying facts and how much 

weight to give the Walk and Turn and One Leg Stand test would ordinarily be a 

factual determination made the suppression hearing. However, even accepting 

Defendant’s reasoning for her inability to perform the Walk and Turn and One Leg 

Stand tests, probable cause to conduct the DUI arrest exists. Defendant does not 

contest that she ran a red light and failed the HGN test. The alphabet and counting 

tests were credible and there were additional observations made by Arresting 

Officer, including: (1) bloodshot and glassy eyes; (2) flushed face; (3) talkative and 

was presently disabling.”). Notably, Defense counsel in the instant case also 

represented the defendant in Slaney. 

11 Id. at *4 (“...it is within the appropriate discretion of the trial court to determine 

what weight to give sobriety tests, and so long as there is evidence in the record to 

support the trial court’s decision, this Court is not in a position to overturn that 

assessment.”) (internal quotation marks omitted); see also Miller v. State, 4 A.3d 

371, 374 (Del. 2010) (affording trial court latitude to weigh evidentiary value of 

sobriety tests in light of evidence); State v. Ministero, 2006 WL 3844201, at *4 (Del. 

Super. Ct. Dec. 21, 2006) (same).

12 State v. Iubatti, 2017 WL 3396493, at *2 (Del. Super. Ct. Aug. 7, 2017) (citing 

Miller, 4 A.3d at 374).
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giggly demeanor; (4) slurred speech; and (5) the top of what Arresting Officer

believed to be a liquor bottle, suggesting that Defendant was impaired. The State has 

established that Arresting Officer had probable cause to arrest Defendant, even if 

this Court were to exclude the Walk and Turn and One Leg Stand test results.

Considering all these factors, this Court finds there was probable cause to support 

Arresting Officer arresting Defendant for DUI. There is no reason for this Court to 

consider the weight of the evidence of the Walk and Turn and One Leg Stand test in 

the determination for probable cause because even without those tests, probable 

cause exists.

CONCLUSION

For the aforementioned reasons, Defendant’s Motion to Suppress is hereby 

DENIED.

/s/ Calvin L. Scott

Judge Calvin L. Scott, Jr.