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

STATE OF DELAWARE, ) ) ) v. ) Case No. 1208018377 ) PERRY A. VENEY, ) ) Defendant. )

Submitted: January 28, 2014 Decided: April 30, 2014

Zachary Rosen, Esq. James A. Natalie, Jr., Esq. Deputy Attorney General Woloshin, Lynch, Natal ie Delaware Department of Justice & Gagne, P.A. 820 N. French Street, 7 th Floor 3200 Concord Pike Wilmington, DE 19801 Wilmington, DE 19803-7329 Attorney for the State Attorney for Defendant

MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS

On August 22, 2012, Defendant Perry Veney (hereina fter “Defendant”) was arrested and charged with the following offenses: ( 1) Driving Under the Influence of Drugs in violation of 21 Del. C. § 4177(a)(2); (2) Failure to Signal in violation o f 21

Del. C. §4155(a); (3) Driving off the Roadway or Main Trave l Lanes in violation of 21

Del. C. § 4117(a); (4) Driving a Vehicle at an Unsafe spee d in violation of 21 Del. C. §2

4168(a); (5) Reckless Driving in violation of 21 Del. C. § 4175(a); and (6) Aggressive Driving in violation of 21 Del. C. § 4175A. Prior to trial, Defendant filed a motion to suppress the results of a blood test on the basis t hat he is shielded from conviction under the Delaware Medical Marijuana Act (hereinaft er “DMMA”), and the arresting officer lacked probable cause for the arrest and se izure of blood. After a review of the submitted briefs and applicable law, the Court DENIES Defendant’s motion to

suppress.

FACTS On August 27, 2012, Trooper Patrick Wenk (hereinaf ter “Trooper Wenk”) of the Delaware State Police was traveling east on Old Baltimore Pike in a marked patrol vehicle. Trooper Wenk observed Defendant travel di rectly behind another vehicle, then enter the wide right shoulder, accelerate, and pass the vehicle in front of him at a rate of speed above the posted speed limit of 45 mi les per hour. After passing the vehicle, Defendant returned his vehicle to the east bound travel lane. Trooper Wenk then passed the slower-moving vehicle, and followed Defendant as he turned into a neighborhood. Trooper Wenk activated his vehicle’s emergency lights. Defendant slowed, activated his right turn signal, and stoppe d on the right side of the road. Trooper Wenk approached Defendant’s vehicle, and o bserved Defendant

slouched in the driver’s seat with the seat recline d. Defendant was not wearing his seatbelt, and Trooper Wenk detected a very strong o dor of marijuana emanating from3

the Defendant and his vehicle. 1 Trooper Wenk also observed ash on Defendant’s shoulder and particles of a leafy green substance o n Defendant’s shirt. 2 Trooper Wenk questioned Defendant, who acknowledge d that he should not have sped past the other motorist, but that he was “trying to hurry up and get home.” When questioned about the marijuana odor, Defendant stated that there was no marijuana in the car, but that he smoked in the veh icle “earlier,” on his way to Delaware from New Jersey. Defendant stated that he smoked a joint while driving the car, and that he had finished it “hours ago.” 3 In his report, Trooper Wenk noted that Defendant appeared sleepy, his speech was “mum bled/fair,” and Defendant was polite and cooperative. 4 A pat-down search revealed $2,000 in cash in Defe ndant’s pockets. Trooper Wenk asked Defendant to perform a variety of tests, including the alphabet test, the counting test, the walk and turn test, one-leg stand test, a horizontal gaze nystagmus (hereinafter “HGN”) test, and a port able breathalyzer test (hereinafter “PBT”). Prior to administering the tests, Defendan t advised Trooper Wenk that he had no physical defects, and that he understood and felt comfortable with the field tests. Defendant performed the alphabet test corre ctly. On the counting test, Trooper Wenk told Defendant to start at 68 and coun t backwards to 53. Defendant

1 Trooper Wenk noted in his Impaired Driving Report that he “could actually begin to detect the odor of marijuana as [he] approached the suspect vehicle on foot for the first time.” 2 According to the Impaired Driving Report at page 3 , the particles later tested positive for marijuana

. 3 Trooper Wenk noted that Defendant had only been dr iving for 1-2 hours when he was stopped. 4 Impaired Driving Report at p. 3.4

performed as he was told, but stopped at 50 rather than 53, and told Trooper Wenk that he “[could] keep going, [he] just [didn’t] rem ember what [Trooper Wenk] said.” 5 On the walk and turn test, Defendant broke stance d uring the instructional stage and held his arms awkwardly in front of his body, but w as able to take 10 steps. Prior to turning, Defendant raised his arms and stepped off the imaginary line. Defendant then took 9 steps while holding his arms awkwardly in front of his body. Trooper Wenk stated in his report that he observed six of e ight clues of impairment on this test. On the one-leg stand test, Defendant swayed twice and raised his arms three times. Finally, Defendant passed both the HGN test and PBT.

PARTIES’ CONTENTIONS Defendant alleges that he is protected from convic tion under the DMMA. 6 The DMMA seeks to protect individuals with debilita ting illnesses from arrest and prosecution as a result of engaging in the use of m arijuana for medicinal purposes. 7 However, the DMMA only protects individuals who ha ve registered with the state and are considered registered qualifying pati ents. 8 Defendant alleges that he qualifies as a visiting qualifying patient, 9 and therefore, under 16 Del. C. § 4904A(4), he

5 Id. 6 16 Del. C. §§ 4901A-26A. 7 16 Del. C. § 4901A(g). 8 16 Del. C. § 4903A(a). A “qualifying patient” is an individu al “who has been diagnosed by a physician as having a debilitating medical condition.” 16 Del. C . § 4902A(11). 9 “‘Visiting qualifying patient’ means a person who: a. Has been diagnosed with a debilitating medical condition; b. Possesses a valid registry identification card...that was issued pursuant to the laws of another state...t hat allows the person to use marijuana for medical purposes in the jurisdiction of issuance; and c. Is not a resident of Delaware or who5

is protected from the imposition of civil and crimi nal penalties for “operating, navigating, or being in actual physical control of any motor vehicle...under the influence of marijuana” if the sole indication of b eing under the influence is the “presence of metabolites or components of marijuana .” 10 Defendant alleges that Trooper Wenk did not have p robable cause to arrest Defendant, and therefore Defendant is protected fro m conviction under the DMMA

because he could not be considered “under the influ ence” solely due to the presence of metabolites or components of marijuana. Defenda nt argues that the results of the field sobriety tests, the odor of marijuana, and th e traffic violation, did not give rise to the requisite probable cause for an arrest. Defend ant relies upon three cases in which Delaware courts found probable cause, Bease v. State , 11 Lefebvre v. State , 12 and Perrera v.

State , 13 to prove that because the same factors were not pr esent in this matter, probable cause did not exist. Defendant also argue s that because he was cooperative, polite, and complied with Trooper Wenk’s requests, probable cause did not exist. Defendant cites to the Michigan Supreme Court deci sion in People v. Koon , in which that court held that driving under the influe nce of marijuana requires more than the existence of marijuana in an individual’s system, and “requires some effect on

has been a resident of Delaware for less than 30 da ys.” 16 Del. C. § 4904A(18). Defendant alleges that he meets all requirements because he has been diagnosed with a m edical condition; he possesses a valid registry ide ntification card; and he was not a resident of Delaware when he was a rrested. 10 16 Del. C

. § 4904A(4). 11 884 A.2d 495 (Del. 2005). 12 19 A.3d 287 (Del. 2011). 13 852 A.2d 908 (Table) (Del. 2004).6

the person.” 14 Defendant alleges that although he admitted to us ing marijuana, committed a traffic violation, and Trooper Wenk det ected the odor of marijuana in his vehicle, Trooper Wenk possessed no evidence of impairment which would create the necessary probable cause for an arrest. Defend ant argues that he is protected from prosecution under the DMMA, and requests that the Court suppress the results

of the blood test. The State alleges that even if Defendant could pro tect himself under the

DMMA as related to 16 Del. C. § 4904A(4), Defendant has no protection under the DMMA for his violation of § 4904(3), which states, “This chapter does not authorize any person to engage in, and does not prevent the i mposition of any civil, criminal, or other penalties for engaging in ... (3) Smoking marij uana: a. In any form of transportation.” The State notes that Defendant ad mitted to smoking marijuana while driving a car, and therefore he is not protected by the DMMA. With respect to the probable cause issue, the Stat e argues that, under the totality of the circumstances, probable cause did e xist for Trooper Wenk to arrest Defendant. The State argues that Defendant’s traff ic violations, coupled with the discovery of both smoked and unsmoked marijuana, De fendant’s admission to smoking while driving, and his performances on the counting test, walk and turn test, and one leg stand, all when considered, under the totality of the circumstances, there existed a fair probability that Defendant committed a crime.

14 People v. Koon , 832 N.W.2d 724, 726 (Mich. 2013).7

The State also alleges that Defendant’s argument t hat probable cause did not exist because factors present in Bease , Lefebvre , and Perrera were not present in his arrest, is baseless. The State argues that “more t han three sets of circumstances” are “sufficient under Delaware law to establish probabl e cause,” and that Defendant failed to provide case law proving that the factors present in this matter are insufficient to form the basis of probable cause. The State moved the Court to deny Defendant’s motion to suppress.

ANALYSIS In a motion to suppress, the State must establish probable cause by a preponderance of the evidence. 15 “No precise formula exists for determining probable cause. Instead, Delaware courts have defi ned and refined, through a variety of factual contexts, the boundaries of what constit utes probable cause for a DUI

offense.” 16 The Court must give specific weight to each factor considered within the totality of the circumstances and determine if such factors suggest, when viewed by a reasonable police officer, that “that there is a fa ir probability that the defendant

committed the offense.” 17

In State v. Flonnery , the Superior Court found that the following facto rs were sufficient to support a finding of probable cause: 1) traffic violation; 2) bloodshot, glassy eyes; 3) 2/3 full beer bottle in the driver’ s side door; 4) odor of alcohol; 5)

15 Bease , 884 A.2d at 498; State v. Mulholland , 2013 WL 3131642, at *3 (Del. Com. Pl. June 14, 20 13). 16 State v. Lanouette , 2012 WL 4857820 (Del. Com. Pl. Aug. 27, 2012) (ci tations omitted). 17 Miller v. State , 4 A.3d 371 (Del. 2010).8

defendant’s admission to drinking; and 6) failed fi eld tests and a failed PBT. The Court determined that probable cause existed even t hough the defendant was cooperative, sat normally in the vehicle, did not s lur his words, and promptly provided his documents, as “such evidence does not automatic ally defeat probable cause,” 18 and must be weighed along with evidence of impairme nt when determining whether probable cause existed. 19 Similarly, in State v. Lanouette , this Court found that probable cause existed afte r consideration of the following factors: 1) traffic violation; 2) bloodshot, glassy eyes; 3) odor of alcohol; 4) admission to drinking; and 5) f ailed field tests and HGN test. While the defendant in Lanouette did pass one field test, had clear speech, and was cooperative, the Court nonetheless determined that probable cause existed for his

arrest. 20

Defendant cited to Bease v. State in his argument against a finding of probable cause, as the factors present in his arrest did not match the factors present in the Bease

case. In Bease , the Superior Court determined that the following factors were sufficient to establish probable cause: 1) abrupt v ehicular movement; 2) odor of alcohol; 3) bloodshot, glassy eyes; 4) admission to drinking; 5) rapid speech; and 6) his inability to produce his driver’s license. 21 Delaware courts do not decide whether probable cause existed by relying upon a single cas e to compare factors present in a

18 2013 WL 3327526, at *4 (Del. Super. June 12, 2013)

. 19 Id. 20 212 WL 4857820, at *9 (Del. Com. Pl. Aug. 27, 2012 ). 21 884 A.2d at 498.9

totality of the circumstances situation. Instead, the courts compare decisions to all

factors and circumstances of individual cases to de termine whether probable cause

existed. 22 Here, Defendant committed multiple traffic violatio ns prior to Trooper Wenk pulling him over. Once Trooper Wenk made contact w ith Defendant, he observed a strong odor of marijuana, ash on Defendant’s should er and a leafy green substance on his shirt, and Defendant admitted to smoking a join t approximately one to two hours prior to his contact with Trooper Wenk. Trooper We nk noted that Defendant appeared sleepy, his seat was reclined, and he was slouched in the seat. Trooper Wenk also stated that Defendant was polite and coop erative during their contact, that Defendant passed the alphabet test, displayed zero total clues on the HGN test, and followed nearly all directions on the counting test . However, Defendant’s performance on the walk and turn and one leg stand tests demonstrated that he may be impaired.

The Court finds that the aforementioned factors do support a finding of probable cause for arrest in this matter. Defendan t, like the defendants in the cited case law, committed traffic violations, which led t o contact with Trooper Wenk. Trooper Wenk detected the odor of marijuana, saw re mnants of marijuana on Defendant’s shoulder and shirt, and Defendant expre ssly admitted to smoking a joint

22 Lanouette , 212 WL 4857820, at *8.10

while driving the vehicle. 23 This admission would thus allow for the impositio n of penalties under 16 Del. C. § 4904A(3), which prohibits smoking marijuana in “ any form of transportation,” regardless of any protecti ons provided by the DMMA. Defendant here, like the defendants in Flonnery and Lanouette , also failed multiple field tests. Trooper Wenk also noted that Defendant’s po sition in the vehicle, slouched down and reclined, was suspicious, and that Defenda nt appeared sleepy during the

contact. 24 The Court does consider Defendant’s cooperative a nd polite demeanor throughout his interaction with Trooper Wenk, and a lso took into account his completed field tests. These factors however, when were weighed along with the factors does not prevent the Court from finding pro bable cause. Defendant argued that the results of his blood dra w must be suppressed

because he cannot be “considered... under the influen ce of marijuana solely because of the presence of metabolites or components of mar ijuana.” 25 Defendant also argued that his demeanor and completed field tests negated any basis for probable

cause of his arrest. The Court finds that these ar guments do not overcome the other factors present in this matter that support probabl e cause for the arrest. Defendant was aware that he was prohibited from smoking marij uana while driving a vehicle,

23 In Defendant’s motion, he attached his certificati on for the medical use of marijuana. The certifica tion expressly states, “My patient has been informed that cannabis can affect the judgment and reaction time and not to operate motor vehicles...while using it.” 24 Defendant raised the argument that the sleepiness arose from the time of the contact, which was aroun d 2 a.m. However, the State does not need to prove that Defe ndant’s sleepy demeanor was directly caused by his marijuana consumption, but only that a reasonable officer cou ld find sleepiness to be an indicator of impairment enough to consider it a factor in the totality of the circums tances/probable cause analysis. See Miller , 4 A.3d at 371. 25 16 Del. C. § 4904A(4).11

under the act. With the presence of remnants of ma rijuana on his person and the admission of smoking, the DMMA affords no protectio n for the defendant. Accordingly, IT IS HEREBY ORDERED this 30 th day of April 2014 , that Defendant’s motion to suppress, is DENIED

.

__________________________________ The Honorable Alex J. Smalls Chief Judge

Veney-OP April 2014