IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, :

 : ID No. 1901016324

 v. : In and For Kent County

 :

DARRYL J. COFIELD, :

 :

 Defendant. :

ORDER

Submitted: January 21, 2020

Decided: January 27, 2020

On this 27

th day of January 2020, after considering the evidence presented at 

a contested violation of probation hearing and the arguments of the parties, it appears 

to the Court that:

1. Probation and Parole charged Probationer Darryl Cofield with violating

a condition of his probation imposed after a third offense driving under the influence 

of alcohol conviction. The State alleges that he drank alcohol based on a drinking 

event report from a transdermal continuous alcohol monitoring device (“TAD”). 

Mr. Cofield contests the allegation. He denies that he drank alcohol and claims that 

the December 19, 2019 positive result for alcohol use came from his use of Icy Hot 

on the same ankle where Probation and Parole placed his TAD. At Mr. Cofield’s 

request, the Court held a contested VOP hearing on January 13, 2020.

2. In the Court’s September 19, 2019 sentence, it sentenced Mr. Cofield 

to one year of Level V, further suspended after three months pursuant to 21 Del. C.

§ 4177(d)(9), to be followed by three months of Level IV home confinement, 
2

followed by one year of Level II probation. Section 4177(d)(9) of Title 21 permits

the Court to suspend what would otherwise have been a one-year minimum sentence

for ninety days incarceration. That paragraph, however, provides the Court

discretion to do so only if a defendant meets certain statutory requirements. The 

requirement relevant to Mr. Cofield’s case requires that “the offender maintain a 

period of not less than 90 consecutive days of sobriety as measured by a TAD device

or through periodic breath or urine analysis[.]”

1

3. After an evidentiary hearing, the Court finds the following facts to a 

preponderance of the evidence. Kent County Probation and Parole’s TAD officer, 

Officer Brower, fitted Mr. Cofield with a TAD device on December 11, 2019. 

Thereafter, Probation and Parole requested Mr. Cofield to return to the office on 

December 17 or 18, 2019 to exchange his TAD bracelet. On December 19, 2019, 

Mr. Cofield’s TAD device alerted to a suspected alcohol event. When Officer 

Brower next returned to the office, after the alert and after the weekend, he contacted 

BI Inc. (“BI”), the third-party contractor who administers TAD devices for the State 

of Delaware. A BI technician confirmed with Officer Brower by telephone that Mr. 

Cofield’s TAD alert represented a drinking event. The BI telephonic confirmation 

ruled out a false positive from any other event, such as the use of cough syrup or 

mouthwash. Officer Brower then arrested Mr. Cofield for a violation of probation 

and filed a report.

4. In a violation of probation hearing, the burden is on the State to prove 

by a preponderance of the evidence that the defendant violated his probation.2 

Hearsay is admissible at violation of probation hearings.3 However, the State cannot 

 

1

21 Del. C. § 4177(d)(9). 

2 Rossi v. State, 140 A.3d 1115, 1120 (Del. 2016) (citation omitted).

3

Id. at 1117 (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006) to explain that the State must 

prove by a preponderance of the evidence that the “conduct of the probationer has not been as 

good as required by the conditions of probation”).
3

rely entirely upon hearsay.4 There must be “some competent evidence to prove the 

violation asserted.”5 Competent evidence is “evidence that would be admissible in 

a . . . trial and is proof that the defendant violated the terms of [his or her] probation.”6 

Furthermore, “[i]nadmissible hearsay, without some corroborating admissible 

evidence, is “a basis too untrustworthy [to terminate a person’s freedom].”7

5. Here, Mr. Cofield argues that the State’s case rests solely upon hearsay. 

Namely, BI leases and monitors Delaware’s TAD devices. BI personnel also 

confirm the results and relay the confirmations by email and telephone to Delaware 

Probation and Parole. Mr. Cofield argues that because the officers responsible for 

deploying the devices cannot explain the science behind the equipment or attest to 

their calibration, the State cannot meet its burden by relying on the results alone. 

The State counters that the relevant Delaware Code provision requires that a TAD 

device monitor sobriety for a period of ninety days as a condition of probation. The 

State argues that baked into that statutory requirement is a condition of probation 

providing that a positive reading alone is sufficient to qualify as a violation. 

6. The State correctly recognizes that the General Assembly permits the 

Court to suspend a one-year minimum sentence after ninety days only if the 

defendant meets certain conditions.8 The General Assembly’s decision to condition

a suspended sentence upon the monitoring of a particular scientific device—a 

transdermal continuous alcohol monitoring device—demonstrates its policy 

judgment that alcohol use during that period should constitute a violation of 

probation.

 

4

Id. at 1122.

5 Brown v. State, 249 A.2d 269, 272 (Del. 1968).

6 Rossi, 140 A.3d at 1119.

7

Id. at 1119–20 (quoting Brown, 249 A.2d at 272). See also State v. Hopkins, 2016 WL 6958697, 

at *2 (Del. Super. Nov. 23, 2016) (explaining in the context of a suppression hearing contesting 

probable cause that hearsay alone is an insufficient basis for probable cause).

8

21 Del. C. § 4177(d)(9).
4

7. Due process requires another layer of analysis other than relying solely

upon a test result, however. A contested violation of probation hearing does not 

hinge on the validity or appropriateness of including a condition in the Court’s order. 

Rather, it involves the Court’s determination regarding whether the probationer 

violated the condition. Notwithstanding the General Assembly’s choice to include

this condition permitting the suspension of mandatory time, the Court may revoke a 

defendant’s probation only upon its finding of a violation of the condition. When 

doing so, the Court’s function is the same as it is in any other contested violation of 

probation hearing. 

8. The Court recognizes at the outset that Probation and Parole may rely 

upon hearsay from a third-party. In fact, it may rely primarily upon hearsay, such 

as TAD results or urinalysis results, when proving violations of probation. 

Nevertheless, some competent evidence must support the third-party’s report that

the probationer used alcohol. 

9. In this regard, there is no meaningful distinction between this case and 

cases involving probationer drug and alcohol urine testing. The Delaware Supreme 

Court’s decision in Hester v. State9is instructive regarding the quantum of 

competent evidence necessary to corroborate a probationer’s positive drug or alcohol 

test. There, the Court recognized that an out-of-office confirmation of a positive 

urinalysis test was fully admissible in a violation of probation hearing.10 

Nevertheless, in the face of a due process challenge, the Court in Hester recognized 

that additional evidence of a violation was necessary to support a finding of 

violation.11 The Court found that the testimony of a Treatment Access Center 

 

9

791 A.2d 750, 2002 WL 24332, at *1–2 (Del. 2006) (TABLE) (citing Brown, 249 A.2d at 272 

when determining a urinalysis report and a case manager’s testimony were sufficient evidence to 

show the defendant committed a violation of probation).

10 Id. at *1.

11 Id.
5

counselor that administered the urinalysis was sufficient to constitute competent

evidence supporting the finding of violation.12 When so finding, the Court observed 

that she “testified in detail regarding the procedures for the test and identified the 

report from the toxicology laboratory reflecting that the sample . . . tested positive 

for cocaine.”13

10. In the case at hand, the record contains insufficient competent evidence 

to support a finding of violation. Here, to revoke probation, the Court would need 

to do so based upon the testimony of a witness that had “no first-hand knowledge of 

the events constituting the violation.”14 Here, Officer Brower testified credibly that 

he initially fitted Mr. Cofield with an original TAD unit. He also confirmed that 

Probation and Parole later fitted Mr. Cofield with a new TAD unit before the alert 

on December 19, 2019. He cited calibration related concerns as the reason for 

substituting the TADs. While Officer Brower testified that, by practice, he would 

have expected to have been the one to substitute the unit, he qualified that by stating

“I think I put a new one on him.” Mr. Cofield testified contrarily that on December 

17 or 18, 2019, a female officer called him to the Dover office to switch the unit 

because of calibration issues. 

11. Absent from the record is any evidence regarding calibration of the unit. 

Here, the Court need not address to what extent, if any, evidence regarding the 

device’s calibration is necessary for foundational purposes in a violation of 

probation hearing. Apart from that issue, the record does not contain sufficiently 

detailed evidence regarding the process for fitting the bracelet or the procedures 

 

12 Id.

13 Id.

14 See Collins v. State, 897 A.2d 159, 160–61 (Del. 2016) (citation omitted) (confirming this 

principle in a case where hearsay regarding an alleged victim’s accusation of a crime was 

insufficient, notwithstanding broken items and property damage consistent with the fact that a

crime was committed, but not that the defendant was the one who committed it).
6

regarding what measures, if any, are used to insure that the equipment would produce 

an accurate result. Nor did the State present any evidence of record corroborating 

the test report, such as an admission of violation, testimony regarding an odor of 

alcohol about the defendant, a beer can or bottle, or observations regarding Mr. 

Cofield’s demeanor close in time to the TAD reading. While the Court finds Officer 

Brower’s testimony credible in all respects, he candidly did not have a specific 

recollection of being the one who fitted the new (and relevant) bracelet on Mr. 

Cofield on December 17 or 18. The positive test report came within two days of this 

fitting. In contrast, Mr. Cofield’s sworn testimony provided that (1) he did not drink 

alcohol, and (2) that a female officer—who did not testify—performed the “swap.” 

The Court declines to disregard Mr. Cofield’s testimony. After observing his 

demeanor, and evaluating his testimony in conjunction with the other evidence, the 

Court accepts his testimony on this issue. 

12. After the hearing, at the Court’s request, the parties addressed the issue 

of what is the least amount of competent evidence necessary to corroborate a TAD 

report. The Court requested that the parties focus on the potentially corroborative

facts in this case—Officer Brower’s initial installation of the TAD—and whether 

that constituted sufficient competent evidence. 

13. Mr. Cofield cited the Delaware Supreme Court’s decision in Grandelli 

v. State,

15 which is helpful for context but is not controlling. As in the case at hand, 

in its Grandelli decision, the Court examined what was sufficient competent 

evidence to support a TAD drinking event report.

16

 The State, in that case, presented 

a BI engineer’s expert testimony in the hearing.17 His testimony included that BI 

calibrated the TAD every six months and he identified the date that BI had last 

 

15 2014 WL 4670860 (Del. 2014) (TABLE).

16 Id. at *3.

17 Id. at *2.
7

calibrated that probationer’s TAD.18 The engineer further testified regarding how 

the TAD worked from a scientific perspective and that, in his opinion, the TAD 

worked properly on the day of the alleged violation.19 Given that testimony, in 

conjunction with the test report, the Delaware Supreme Court found sufficient 

evidence to support the Superior Court’s finding of violation.20

14. In the Grandelli decision, the Delaware Supreme Court did not set the 

floor for the quantum of competent evidence necessary to support a finding of 

violation in the TAD context. Significantly less facts than those present in Grandelli

would be necessary. Here, this Court’s finding does not hinge on a lack of expert 

testimony, calibration records, or testimony from a BI representative. Rather, in this 

case, the quantum of evidence presented did not meet the floor set in Hester v. 

State.

21

 Third-party testing is a necessary mechanism to enforce drug and alcohol 

related conditions of probation. However, to corroborate a third-party generated 

TAD result, the proponent must at a minimum still testify in detail regarding the 

procedures available to Probation and Parole to ensure the device is accurate. Here, 

the State need not have offered evidence as strong as in the Grandelli matter. It did 

not, however, meet its burden as recognized in the Hester case. 

15. In conclusion, Mr. Cofield did not violate a condition of his probation. 

He remains on Level IV Home Confinement until successful completion of the 

ninety-day Intensive Outpatient Treatment Program required by 21 Del. C. § 

4177(d)(9). All other conditions of his probation, including the ninety-day TAD 

monitoring requirement, also remain in effect.

 

18 Id.

19 Id.

20 Id. at *3.

21 Hester, 2002 WL 24332, at *1–2.
8

WHEREFORE, the Court finds that Mr. Cofield did not violate the 

conditions of his probation on December 19, 2019.

IT IS SO ORDERED.

Jeffrey J Clark

 Judge