IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWAR E IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE , ) ) )

v. ) Cr.A. No. 1306018766 ) ) THOMAS J. SANSONE, ) )

Defendant. )

Submitted: February 25, 2014 Decided: July 11, 2014
Danielle Brennan, Esquire Richard B. Ferrara, Esquir e Deputy Attorney General Ferrara & Haley Carvel State Office Building 1716 Wawaset Street 820 N. French Street, 7 th Floor Wilmington, DE 19806 Wilmington, DE 19801 Attorney for Defendant Attorney for State

DECISION ON DEFENDANT’S MOTION TO SUPPRESS Thomas J. Sansone, (hereinafter “Defendant”) was arrested on June 20, 2013, by the New Castle County Police and charged with Driving While Under the Influence of Alcohol; three (3) offenses of Failure to Stop for a Stop Sig n; Drinking While Driving; Failure to Have Possession of Insurance and Registration Card; and Failure to Signal. Sansone filed this motion to suppress the blood analysis on the basi s that the warrant obtained to draw the blood violates the implied consent provisions of 21 Del. C. 2740 , et2

al., and the holding in State v. Betts , 2009 WL 388952 (Del. Super. 2009). The Court conducted a hearing and thereafter ordered post-hearing bri efing on the matter.

FACTS
The facts which are not in dispute as testified to by Offic er Shelhorst of the New Castle County Police Department. He stated that on the af ternoon of June 20, 2013, he was working pro-active patrol and traffic management in the area of Richardson Park. At approximately 6:40 p.m., he observed a vehicle make a right turn onto Glenrich Avenue without using its turn signal. The vehicle also disregar ded a stop sign at the same
intersection. Shelhorst followed the vehicle and observed se veral other traffic violations. Shelhorst was operating an ATV without emergency lights, whic h created difficulty in stopping the vehicle. He had to bang on the back of the defendant ’s vehicle in order to get his attention. Eventually, the defendant pulled his vehic le to the right side of the roadway with both right tires resting on the lawn of the adja cent residence. Upon approach, Shelhorst observed an open container of beer in the defend ant’s cup holder. He also noticed that the defendant’s eyes were bl oodshot and glassy and detected an odor of alcohol. During their interaction, the defe ndant admitted to consuming between 6 and 10 beers that afternoon. Shelhorst attem pted to conduct field sobriety testing, however, the defendant refused such test ing, allegedly stating, “I would fail them.” The defendant was then offered a portable breath test, which he also refused. Shelhorst advised the defendant that he was going to transport hi m back to police headquarters to administer an Intoxilyzer test, to which the defendant allegedly replied “I3

would fail that test.” The defendant was then taken into custody. The defendant was transported to New Castle County Police headquarters by Cor poral Purse. At that time, Shelhorst drafted a warrant and responded to Justice of the Pe ace Court 11, where the warrant was signed by a Magistrate to draw blood. Shelhorst then returned to the New Castle County Police Department where he again made contact with the defendant. During cross examination, Shelhorst confirmed that it was N ew Castle County Police standard operating procedure, to read the implied conse nt paragraph to all subjects who refuse the intoxilyzer test. Shelhorst testified tha t he did read the defendant the implied consent paragraph, after he returned to the station after securing a warrant. The defendant subsequently refused the intoxilyzer test. A fter defendant’s refusal, Shelhorst had the phlebotomist draw his blood.

ANALYSIS
Sansone brings this motion pursuant to Court of Common Pleas Civil Rule 12 to suppress the blood results. Sansone argues that the blood extra ction from his body and subsequent analysis is not admissible because pursuant t o 21 Del. C. § 2740 et al., and State
v. Betts 1 . He alleged that when Officer Shelhorst read him the im plied consent provision and he refused the test, such refusal was binding and the O fficer could no longer proceed with the blood extraction. He further argues that the prohibi tion created in the statute is not changed or modified in any way because the Officer obtained a judicial search warrant prior to the time he was read the implied consent provision.

1 State v. Betts , 2009 WL 388952 (Del. Super.)4

The State argues that Betts does not apply and 21 Del. C. § 2740 is not applicable
under these facts because the Officer obtained the searc h warrant prior to Sansone’s
refusal under the statute. On a motion to suppress, the burden is on the State to establis h by the preponderance of the evidence that the challenged search or seiz ure conformed to the rights guaranteed by the United States Constitution, the Del aware Constitution and Delaware statutory law. State v. Anderson , 2010 WL 4056130 (Del. Super. 2010).
Under 21 Del. C. 4177(a)(1) , “[n]o person shall drive a vehicle . . . [w]hen the person is under the influence of alcohol.” Under 4177(c)(5) , “under the influence’ shall mean that the person is, because of alcohol . . . less able than the person would ordinarily have been, either mentally or physically, to exercise cle ar judgment, sufficient physical control, or due care n the driving of a vehicle.” Section 2740(a) of Title 21 provides that, “Any person who drives . . . wi thin this State shall be deemed to have given consent . . . to a che mical test or tests of that person’s blood for the purpose of determining the presence of alcohol or a drug or drugs.” Such testing shall be required of any person where the Officer has probable cause to believe the person was driving a vehicle, in violation of 21 Del. C. § 4177 . Under § 2741 , a person may refuse the test and under § 2742 where such person refuses, the test shall not be given but such refusal shall be reported to the Division of Motor Vehicles. The Superior Court in State v. Betts , 2009 WL 388952 (Del. Super.) held that when reading § 2741 and § 2742 together:

“The police have two routes they can choose when a driver refuses to submit to a chemical test. One route is for the5 officer to take the test and not discuss any penalties or consequences for refusal found in § 2741(a) . In the event the driver has refused the officer’s request, the officer m ay still go ahead and take the test by invoking the statute set out in t he second sentence of § 2742(a) and laid out in full by § 2740(a)

. The officer is empowered to do this so long as he or she has probable cause to suspect a DUI and has not mentioned the penalties. In this scenario, the driver’s refusal is inconse quential to the ability of the police to conduct chemical testing. However, in the alternative, an officer can also choose to inform a driver who refuses to submit to chemical testing of the penalty of refusal. If, upon learning of the penalties the dr iver allows chemical testing, the test may be taken. However , if the driver still refuses to take the test after the officer recites the penalties, that officer must not take the test and can no long er use probable cause as a reason to do so. In sum, when penalties are discussed by the police with the suspected impaired driver, the driver is then empowered to refuse and that refusal be comes binding upon the officer. Whichever option the officer employs, taking the test upon probable cause and no mention of the revocation consequences, or not taking the test because the driver still refuses te sting after being informed of the revocation consequences, the officer, must certify certain information to the Secretary of Transportation. The information certified reflects the sta tutory dichotomy between the two options available to the police. That certification process also further demonstrates there i s a bright line separating the two options the police have when confronted with a refusal to submit to a chemical test.” The facts here present a situation which is different than thos e present in Betts

. Here, Officer Shelhorst before the defendant’s refusal, applied for a search warrant to take blood as required under Missouri v. McNeely

. 2 Applying the Betts analysis to these facts when the Officer made the application for the warrant , he elected to proceed with

2 Missouri v. McNeely , 133 S. Ct. 1552, 2013 U.S. Lexis 3160 (Decided Ap ril 17, 2013) holding that a warrantless search of a person, where the search in volved a completed physical intrusion beneath the s kin and into the person’s skin and into the person’s veins to obtain a blood sample to use as evidence in a cr iminal investigation is prohibited except where there exis ts exigent circumstances. Whether exigency exists is to be determined case-by-case based upon the totality of the circumstances.6

the forced blood draw. The second option was no longer available to the Officer nor the defendant, because the application for the search warrant cl early indicates an intent by the Officer to proceed with the forced chemical testing. In thi s instance, if the warrant is granted, the Officer can proceed to extract the blood. In the event the warrant application is denied, the State is left to proceed on the fac ts they have developed at that point, and the State is not permitted to go back to an alternati ve position which involves
the defendant’s refusal. Thus here, when the Officer had made application for the warra nt, the Officer is prevented from reading the impaired consent provision with pena lties for refusal. Any
further discussion on this issue of refusal between the Offic er and the defendant is not relevant to the analysis of the election of refusal. Accordingly, the motion to suppress the blood draw and analysi s is denied. Clerk
shall schedule the matter for trial.
SO ORDERED

________________________________ Alex J. Smalls Chief Judge

Sansone-DECISION July 2014