IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE ) ) )
v. ) Case No. 1310011475 ) KIMBERLY S. MAUK , ) ) Defendant. )

OPINION

Date Submitted: June 27, 2014 Date Decided: September 29 , 2014 Upon Defendant’s Motion to Bar Statements Procured in Violation of Miranda : DENIED Upon Defendant’s Motion to Suppress : DENIED Edmund Daniel Lyons, Esquire , 1526 Gilpin Ave, Wilmington DE 19806, for Defendant. Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of Justice, Carvel State Office Building, 820 N. French Street, Wilmington , DE 19801, for the State of Delaware

JURDEN, J.1 I. INTRODUCTION
Defendant Kimberly Mauk is charged with Driving a Vehic le while Under
the Influence of A lcoho l (“DUI”) , two counts of Vehicular Assault First Degree,
two counts of Vehicular Ass ault Second Degree , and D riving a Vehicle While
License is Suspended or R evoked , relating to a two

- vehicle collision that occurred

on October 18, 2013

. M auk has filed a motion to suppress certain statements she
made to the chief investigating officer and a motion to suppress the results of a blood test taken at the hospital. For the reasons stated below, Mauk’s motion s to
suppress are DENIED.

II. FACTS
On October 18, 2013 , at approximately 6: 49 p.m. , Delaware State Trooper Cpl. Scott Mauchin (“Cpl. Mauchin”) was dispatched to a two

- vehicle collision at
the intersection of Concord Pike and Fairfax Boulevard in New Castle County
Delaware. 1 When Cpl. Mauchin arrived at the scene around 7:18 p.m. , emergency medical technicians, fire department personnel, and two other Delaware State Troopers were already at the scene. 2 Mauk was the only occupant in he r vehicle
and the second vehicle contained a family of four, including two adults and two

1 Transcript of March 14, 2014 Suppression Hearing at 9

– 10 (No. 43) (“Tran.”). 2 Id. at 11

– 12, 13

– 14.2 children. 3 All of the occupants of both vehicles were transported to Christiana Hospital by ambulance before Cpl. Mauchin had the chance to speak with any of
them. 4 According to three independent witnesses at the scene , the accident
occurred when Mauk made a left turn across oncoming traffic

. 5 A second trooper
at the scene advised Cpl. Mauchin that he had approached Mauk’s vehicle and could smell alcoholic beverages coming from the front compartment area of the
vehicle

. 6
Cpl. Mauchin left the accident sce ne and went to the hospital , where he
arrived between 8:05 p.m. and 8:10 p.m.
. 7 Upon arrival, after securing permission
from Mauk’s treating nurse, 8 Cpl. Mauchin made contact with Mauk to make his
own assessment of her and to determine what happened at the collision scene. 9
When Cpl. Mauchin entered Mauk’s hospital room , she was on a gurney with two
IV lines in her arm s
. 10 The only other person in the room was Nurse Mary Kathleen Fillingame (“Nurse Fillingame”)

. 11 Mauk had been administered 0 .5 milligrams of Dilaudid, a narcotic pain medication. 12 Nurse Fillingame , who

3 Id. at 18. 4 Id. at 14. 5 Id. at 16. 6 Id. at 15. 7 Id. at 16

– 17. 8 Id. at 65. 9 Id. at 19

– 20. 10 Id. at 20. 11 Id. 12 Id. at 113.3 administered the Dilaudid , testified that 0 .5 milligram s is a “very small [dose] for
an adult.” 13

When Cpl. Mauchin began to discuss the accident with Mauk , he noticed
that Mauk was groggy and her speech was slurred and slow , but her eyes were not dilated or glassy. 14 While talking to Mauk , Cpl. Mauchin also detected a moderate odor of alcoholic beverage on her breath from about two feet away. 15 When Cpl. Mauchin asked Mauk what happened , she stated that she was turning left on a green light and was hit. 16 Cpl Mauchin asked Mauk if she had consumed any alcohol prior to the collision and Mauk initially said “no

. ” 17 Upon being informed that he could smell an odor of alcohol on her breath, Mauk said “not recently,” and then said that she had two beers at Season s Pizza. 18 Cpl.
Mauchin w as familiar with the area, and knew that Seasons Pizza was a few miles
north of where the collision occurred. 19 At this point , Cpl. Mauchin informed Mauk that he suspected that she was driving under the influence and wanted to acquire a blood sample from her. 20 Cpl. Mauchin explained to Mauk that the hospital had a n Authorization For Specimen

13 Id. at 145. 14 Id. at 21

– 22. 15 Id. at 22

– 23. 16 Id. at 21. 17 Id. at 23. 18 Id. at 23

– 24. 19 Id. at 24. 20 Id. at 25.4 Acquisition form 21 (“ Consent F orm ”) that she “needed to sign . . . in order for one of the hospital staff to withdraw blood, but that she could refuse it.” 22 C pl.
Mauchin told Mauk that the “alternative to refusing” was that he would obtain a
search warrant. 23

W hile Cpl. Mauchin was discussing the C onsent F or m with Mauk , Chris Belair, Mauk’s significant other and father of her children, arrived along with their
two children. 24 According to Cpl. Mauchin, he and Belair discussed the situation
outside of Mauk’s hospital room. 25 During their conversation , Cpl. Mauchin stated that he “had every intention of leaving there with a blood sample .” 26 Contrary to Belair’s testimony, Cpl. Mauchin denied telling Belair that if Mauk did not

consent , “ the penalties would be higher. ” 27
Following his conversation with Cpl. Mauchin, Belair and Mauk’s children
went into Mauk’s hospital room and Cpl. Mauchin remained outside. 28 After a few minutes, Belair stepped out of Mauk’s hospital room and told Cpl. Mauchin that

“ she’ll give you consent.” 29 Cpl. Mauchin then entered the room, and Mauk

21 Joint Exhibit at 12

– 13. 22 Id. 23 Id. 24 Id. at 26

– 27. 25 Id. 26 Id. at 28. 27 Id. at 79. 28 Id. at 28

– 30. 29 Id. at 30.5 signed the Consent F orm at 8:51 p.m. 30 By signing the form, Mauk gave

“ permission to Christiana Ca re Health Services to take [blood]

. . . for police purposes.” 31 The Consent F orm provided that the test was “blood alcohol
determination” and the purpose was “driving under the influence.” 32 In addition to
Mauk , two hospital nurses signed the form as well. 33 At no point in this process

was Mauk handcuffed. 34

After she signed the Consent F orm but b efore her blood was draw n , Mauk
asked whether the driver of the second vehicle would be giving a blood sample. 35 Cpl. Mau chin responded in the negative and explained that the second driver was not suspected of driving under the influence

. 36 Upon hearing this, Mauk became
upset and agitated. 37 Cpl. Mauchin advised Mauk that he was aware of Mauk’s prior DUI’s and she yelled back , “they had nothing to do with this!” 38 At no time during or after this conversation did Mauk withdraw her consent. 39

30 Id. at 32

– 33. See Joint Exhibit at 12

– 13. 31 Id. at 31

– 32, 82

– 83

. See Joint Exhibit at 12

– 13. 32 Id. at 32. 33 Id. 34 Id. at 33. 35 Id. at 35

– 36. 36 Id. 37 Id. at 97. 38 Id

. 39 Id. at 56.6 W hen Nurse Fillingame was unable to draw Mauk’s blood, she c alled a phlebotomist who successfully drew Mauk’s blood at 9:10 p.m.
. 40 Cpl

. Mauchin
noted that Mauk’s demeanor and composure during the blood draw was the same as it had been prior to the blood draw

— Mauk was “ lying on the gurney and
seemed relaxed. ” 41 Nurse Fillingame testified that had Mauk not provided consent,
she would not have drawn blood. 42 According to Cpl. Mauchin, his interaction with
Mauk at the hospital lasted approximately 35 minutes from first contact to a few
minutes after the blood draw. 43

After the blood draw, Cpl. Mauchin spent approximately two hours checking

up on the occupants of the other vehicle . Cpl Mauchin said that the purpose of this part of his investigation was to assess the extent of their injuries and to determine their vantage point as to the events that had transpired. 44 Cpl. Mauchin noted that
the driver of the second vehicle was conscious, alert, and showed no signs of being under the influence of any type of alcohol or drug. 45

Mauk was arrested on October 20, 2013, upon her release from the hospi tal. 46

40 Id. at 53. 41 Id. at 36. 42 Id. at 138

– 39. 43 Id. at 37. 44 Id. at 40

– 42. 45 Id. 46 Id. at 38.7 III. STANDARD OF REVIEW
On a motion to suppress evidence seized during a warrantless search or seizure, the State bears the burden of “establishing that the challenged search or seizure comported with the rights guaranteed to . . . [the defendant] by the United States Constitution, t he Delaware Constitution, and Delaware Statutory law.” 47 “The burden of proof on a motion to suppress is proof by a preponderance of the
evidence.” 48
IV. PARTIES’ CONTENTIONS
Mauk filed two motions in connection with her October 20, 2013 arrest.
First , Mauk filed a motion to exclude the statements she made to Cpl. Mauchin at the hospital. Mauk argues that these statements were obtained in violation of
Mir anda 49 because she was subject to custodial interrogation but was never
advised of her Miranda rights. The State argues that Mauk was not in custody at the hospital because routine accident investigation at the scene or at the hospital
does not constitute custodial interrogation

. Second , Mauk move d to suppress the results of Mauk’s blood testing
conducted at the hospital , arguing that t he blood draw was an impermissible search in violation of the Fourth Amendment of the U.S. Constitution, and Article 1,

47 State v. Iverson , 2011 WL 1205242, at *3 (Del. Super. 2011) (citing Hunter v. State , 783 A.2d 558, 560

– 61 (Del. 2001)). 48 Id

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

.8 Sections 6 and 7 of the Delaware Constitution because there was no warrant or probable cause

. Mauk argue s that her consent w as not voluntarily given because
she was under the influence of both alcohol and pain medication at the time she signed the Consent F orm and during the blood draw itself

. Mauk also argues that Cpl. Mauchin coerced her into consenting to the blood draw by threatening to get a

warrant if she did not consent.

V. DISCUSSION
1. Admissibility O f Mauk’s Statements
Miranda warnings are only required when a suspect is both in custody and subject to interrogation by a State agent. 50 A law enforcement officer becomes obligated to administer Miranda warnings “only where there has been such a restriction on a person's freedom as to render him in custody. ” 51 The legal standard used to determine custody is “ whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” 52 “When
determini ng whether an interrogation has occurred in a custodial setting . . . the court must review the totality of the circumstances surrounding the interrogation by applying an objective, reasonable person standard.” 53

50 Illinois v. Perkins , 496 U.S. 292, 297 (1990). 51 Stansbury v. California, 511 U.S. 318, 322 (1994). 52 California v. Beheler , 463 U.S. 1121, 1125 (1983). 53 DeJesus v. State , 655 A.2d 1180, 1190 (Del. 1995) (citing Marine v. State , 607 A.2d 1185, 1193 (Del. 1992)). See also Stansbury , 511 U.S. at 323 (“Our decisions make clear that the initial9 Here, the Court must examine the totality of the circumstances to determine
whether Mauk was subject to custodial interrogation at the hospital. This Court has held that, “[i]nvestigation at the scene immediately following an accident is considered routine, initial investigation, even where questioning occurs at the hospital .” 54 However, t here is no per se “hospital rule” in a custody inquiry
because each case must be determined on a case

- by

- case basis. 55

In DeJesus v. State , investigating officers went to the emergency room to speak to the defendant who was being treated for a stab wound. 56 The defendant was “lying on a hospital gurney and appeared to be in great pain,” when an investigating officer asked the defendant what had happened. 57 After eliciting an incriminating statement , the defendant was then provided an incomplete recitation
of h is Miranda rights. The defendant contended that he was in custody during the interview at the hospital because he was not free to leave the hospital at any time. 58 The Delaware Supreme Court concluded that:

determination of custody depends on the objective circumstances of the interrogatio n, not on the subjective views harbored by either the interrogating officers or the person being questioned.”). 54 Fuentes v. State , 2002 WL 32071656, *2 (Del. Super. 2002); Hammond v. State , 569 A.2d 81 (Del. 1989) ; Laury v. State, 260 A.2d 907, 908 (Del. 1969). In Hammond , on an appeal following a conviction of vehicular homicide, the Delaware Supreme Court held that statements made by a hospitalized defendant to police who were primarily concerned with identifying the victims were not custodial in nature. Hammond , 569 A.2d at 94. 55 DeJesus , 655 A.2d at 1191. 56 Id. at 1186

– 87. 57 Id. at 1187. 58 Id. at 1190.10 [w]hile [the defendant’s] freedom of movement was undoubtedly restricted throughout his hospitalization, his confinement was caused by his own physical incapacity

— not police compulsion. At no time did the police attempt to physically restrain [the defendant] : he was not handcuffed, nor did the police gua rd his hospital room to prevent his escape. Further, the detectives did not impede [the defendant’s] release from the hospital. Rather, [the defendant ] left on his own accord. 59
In State v. Pustolski , a vehicular fatality case, the defendant was transported to the hospital by ambulance. 60 At the hospital and after the defendant was prescribed pain medication, the investigating officer spoke to the defendant
without a recitation of the defendant’s Miranda rights

. 61 T he treating nurse also obtained a sample of t he defendant’s blood after the defendant signed a hospital
consent form that noted that the defendant was under arrest. 62 The Court held that the defendant was not subject to custodial interrogation because the defendant was not restrained in handcuffs, the defendant was unable to leave as a result of her medical condition and not police custody, and the officers’ conversation was part of the reconstruction unit’s investigation. 63 Additionally, the Court concluded that the language on the hospital consent for m stating that the defendant was under

59 Id. at 1191. 60 State v. Pustolski , No. 0903005777, slip op. at 2 (Del. Super. Ct. Nov. 30, 2009). 61 Id. at 7. 62 Id. at 9

– 10. 63 Id. at 16

– 18.11 arrest was not determinative of custody status, but merely “a fact that the totality of circumstances suggest s the contrary.” 64
Here, similar to DeJesus and Pustolski , the totality of the circumstances
indicates that Mauk was not formally arrested and any confinement was caused by her own physical incapacity, not police compulsion. Cpl. Mauchin was unable to
obtain statements at the collision scene because all of the persons involved were being treated by medical personnel and were transported to the hospital by ambulance. Upon arriving at the hospital, after first securing permission from
Mauk’s treating nurse, Cpl. Mauchin made contact with Mauk to make his own
assessment of Mauk and to determine what happened a t the collision scene

. Cpl. Mauchin was the only trooper present in the hospital room and Mauk’s significant other and children freely moved throughout the area

. There were times when Cpl.
Mauchin left the Mauk’s vicinity and did not stand on gu ard at Mauk ’s door

. Mauk’s freedom was only restricted by her medical condition, and not by handcuffs or any other police restraint.
Mauk argues that Cpl. Mauchin ’s testimony that if Mauk had attempted to leave the hospital he probably would not have let her leave before he obtained her blood sample , demonstrates that Mauk was subject to custodial interrogation

. 65 A determination of custody depends on objective circumstances of the interrogation,

64 Id. at 16. 65 Tran. at 54.12 not the subjective views harbored by the police officer. 66 There is no evidence that
Mauk could reasonably believe her freedom or action or movement was restricted during Mauk’s limited questioning with Cpl. Mauchin.
2. Admissibility Of The Results Of Mauk’s Blood Test
Mauk claims that the blood draw violated the Fourth Amendment because there was no probable cause or warrant.

The Fourth Amendment of the United States Constitution and Delaware
Constitution protects against “unreasonable searches and seizures.” 67 A warrantless
search is deemed unreasonable unless that search falls within a recognized exception. 68 If a search proceeds without a warrant, the State must prove by a preponderance of evidence that the search fell within an established exception to
the w arrant requirement. 69 A compelled physical intrusion beneath the skin to obtain a blood sample for use as evidence in a criminal investigation is considered
a search .” 70

66 Stansbury , 511 U.S. at 323. 67 U.S. C ONST

. amend. IV ; Del

. C ONST . art. I, § 6

. 68 Katz v. United States , 389 U.S. 347, 357 (1967); Schneckloth v. Bustamonte , 412 U.S. 218, 219 (1973); Higgins v. State , 89 A.3d 477, *2 (Del. 2014)

. 69 Missouri v. McNeely , 133 S.Ct. 1552, 1558 (2013); Schneckloth , 412 U.S. at 222; Scott v. State , 672 A.2d 550, 552 (Del. 1996). 70 McNeely , 133 S. Ct. at 1558.13 One recognized exception to a warrantless search is a search conducted with a person's voluntary consent. 71 “To be deemed ‘ voluntary, ’ consent need not be

‘ knowing and intelligent, ’ but it cannot be the product of coercion by threat or
force. ” 72 To determine whether consent was given voluntarily, the Court must
examine “the totality of the circumstances surrounding the consent ” including: (1) knowledge of the constitutional right to refuse consent; (2) age, intelligence, education, and language ability; (3) the degree to which the individual cooperates with police; and (4) the length of detention and the nature of questioning, including the use of physical punishment or other coercive police behavior. 73
It is undisputed that Mauk signed the Consent F orm to have her blood
drawn. Mauk argues that her ability to consent was hampered because was under
the influence of both alcohol and the pain medication at the time the Consent F orm was signed and during the blood draw . She further claims that Cpl. Mauchin coerced her into consenting to the blo od draw by threatening to get a warrant i f she
did not consent. Here, the totality of the circumstances establishe s that Mauk voluntarily
consented to the blood draw. Cpl. Mauchin explained to Mauk that she could either

71 Schneckloth , 412 U.S. at 221

– 22; Scott , 672 A.2d at 552; Higgins , 89 A.3d at *2. 72 Higgins , 89 A.3d at *2 (quoting Schneckloth , 412 U.S. at 241, 233). 73 Cooke v. State , 977 A.2d 803, 855 (Del.2009).14 consent to the blood draw or he could obtain a search warrant to do so. Outside the presence of Cpl. Mauchin, Mauk had the opportunity to discuss the Consent F orm with her significant other. The language o f the Consent Form makes clear that she was providi ng consent for police purposes. Neither Mauk’s age, intelligence, n or education precluded h er voluntary consent. In fact, given Mauk’s previous DUI convictions, she was not “an ignorant newcomer to the law.” 74 During Cpl. Mauchin’s discussions with Mauk , she was cooperative. Although Mauk became upset when she learned that the other vehicle driver was not going to have his blood drawn, Mauk never withdrew consent and remained relaxed during the blood draw

. 75 Cpl. Mauchin estimated that his interaction with
Mauk lasted approximately 35 minutes from first contact to a few minutes after the blood draw. During this time, Mauk was not handcuffed and Cpl. Mauchin was the only trooper present. Under Delaware law, “ ‘ [t] he mere fact that one has taken drugs does not render consent involuntary,’ nor does intoxication ‘render a confession involuntary.’” 76 “[ T ] he use of drugs is just one factor the court must consider while looking at the totality of the circumstanc es to decide if a statement is ‘ the product

74 See Higgins , 89 A.3d at *2 (explaining that the defendant who had previously been arrested for a similar offense was not a newcomer to the law). 75 Id. 76 Pustolski , No. 0903005777, slip op. at 19 (quoting State v. Caldwell , 2007 WL 1748663 , *3 (Del. Super. May 17, 2007) ).15 of an essentially free and unconstrained choice .’” 77 The relevant inquiry is whether
th e person consenting “knew what she wa s doing and ha d a reasonable appreciation of the nature and significance of his or her actions. ” 78

The record indicates that Mauk “seemed to be groggy,” but understood and was able to answer the questions posed to her. Cpl. Mauchin asked Mauk a series of questions relating to the collision and Mauk was able to tell Cpl. Mauchin that she was turning left on a solid green light and was hit. Mauk also recalled the events leading up to the collision. The fact that she was concerned that the other driver’s blood was not being drawn indicates that she understood the meaning and implications of her own consent. With regard to Mauk’s argument that Cpl. Mauchin coerced her into consenting to the blood draw , while t his Court has in invalidated consent when officers unlawfully claimed to possess a warrant , 79 “Fourth Amendment jurisprudence does not forbid a law enfo rcement officer from attempting to persuade an individual to consent to a search.” 80 In this case , Cpl. Mauchin did not dishonestly claim to possess a warrant, but only informed Mauk of his lawful
intentions if she refuse d to consen t.

77 Id. 78 Id. 79 Cooke v. State , 977 A.2d 803, 857 (Del. 2009) (distinguishing cases in which consent to search was invalidated when searching officers represented they had a warrant, when in fact, none exist). 80 Higgins , 89 A.3d at *3 (citing Schneckloth , 412 U.S. at 233 )

.16 Because the Court has found that Mauk voluntarily consented to the blood draw, the Court will not address the question of whether probable cause or exigent
circumstances existed. 81

VI. CONCLUSION
For the foregoing reasons , D efendant’s Motion s to Suppress are DENIED

.
IT IS SO ORDERED.

____________________________ Jan R. Jurden, Judge

81 See Missouri v. McNeely , 133 S.Ct. 1552 (2013); Schmerber v. California , 384 U.S. 757 (1966).