Nicole S. Macklin v. Jennifer Cohan, Division of Motor Vehicles ( 2015 )

IN THE COURT OF COMMON PLEAS OF THE STATE OF
DELAWARE IN AND FOR SUSSEX COUNTY
DIVISION OF MOTOR VEHICLES
NICOLE S. MACKLIN )
)
Appellant, )
)
V. ) CA. No. CPU6-14~000452
)
)
JENNIFER CDHAN‘, )
)
)
)
Appellate,
Submitted: April 22, 2015
Decided: June 2, 2015
Eric Mommy, Esqnire, Afi‘ameyfbr Appellant
Mary Page Bailey, Esquire, A £170??ny far Appellee.
DECISION ON APPEAL
Beauregard, I.
For the reasons diSCUSSCd below, Appellant’s Appeal from Commissioner’s
Report and Recommendation is DENIED, The March “1?, 2015, Report and
Rummmcndation 0f Commissimwr Adams On appeal is, therefore, affirmed.
Procedural History
On March 31, 2(114, Defendant, Nicole S. Macklin ("Macklin"), appeared before
the Delaware Department of Public Safety Division of Motor Vehicles ("Dix/IV") for a
hearing to determine, a) whether there was probable cause to believe she was in
Violation of 21 Del. Ci {:3 4177; and b) whether by a preponderance of the evidence she
was in violation of Section 4177. On April 15, 2014, the hearing officer issued a written
decision that held that the arresting officer had probable cause to arrest Macklin for
driving under the influence, and that a preponderance of the evidence showed that
Macklin violated Section 417?. The decision by the hearing officer revoked Macklin’s
driver’s license {or three months pursuant to 21 Del. C. § 27£‘l.—2(c){1)." On May ‘15, 2014,
Mscklin filed an appeal of the decision to this Court. On lune 5, 2014, Commissioner
Adams granted a motion to stay the suspension of Macklin’s driver’s license.
On March 17, 2015,. the Commissioner published a Report and Recenimendation
(“Commissioner’s Report“) in which she recommended this Court affirm the findings
and conclusions of the hearing officer and to lift the stay on Macklin‘s license
suspension. On March 30,. 2015, Macklin filed an appeal of the Commissioner’s Report.
The State filed a response to Macklin’s motion on April 22, 2015.
1 "Upon certification by the police officer that there existed probable cause to believe that the person was
in violation of § 4177 of this title or a local ordinance substantially conformng thereto and the person was
arrested on that occasion for a violation of g. 4177 of this title. ..the Secretary shall revoke the person's
driver's license andg’or driving, privilege for a period of 3 months tor a first time DUI offender..."
21 Uri, iii §2742{c}(l}.
2
Facts
At approximately 12:11 a.m. on November 3, 2GB, Corporal Roland Mills was
alerted via SUSCOM to a possible drunk driver exhibiting erratic driving in the area of
Kendale Road and Plantations Road in Lewes, Sussex County", Delaware. The
anonymous call described the vehicle as a Black Jeep Cherokee and gave the license
plate number. Corporal Mills responded to the call and positioned his vehicle at the
intersection of John J. Williams Highway and Plantations Road facing westbound. After
the vehicle passed through the intersection heading south on Plantations Road toward
Old Landing Road, Corporal Mills made a U~turn in pursuit of the vehicle. Corporal
Mills got behind the vehicle and activated his emergency overhead equipment after the
vehicle had made a left—hand turn on Old Landing Road. The vehicle came to a stop on
Old Landing Road at a “slight 45-degree angle, partially in the roadway and partially
on the shoulder.”
Upon contact with Macklin, Corporal Mills smelled an odor of alcohol and asked
Macklin whether she had been drinking. Macklin responded. that she had “one glass of
rum and coke” which was ingested at approximately 10:30 pm. that night. Corporal
Mills, who is National Highway Traffic Safety Administration (“NHTSA”) certified,
administered the following field sobriety tests: the walla—and—turn test, the horizontal
gaze nystagmus test (“HEN”), the one=legged stand balance test, the finger count test,
the alphabet test, and the counting test.
LJ
Mills. explained to Maeklin that he was looking for clues while administering the
test for alcohol induced nystagmns. Macklin provided six "clues" during the HGN test.
Macklin also committed several errors during the walk-and-turn test and the one—
legged Stand test by not following instructions, misstepping, and turning and failing to
hold her leg up for the 30 count. In the counting test, Macklin did not follow
instructions by counting well beyond the instructed stop point of 53. Macklin
performed the finger count test correctly and recited the alphabet test correctly.
Corporal Mills then placed Macklin under arrest and transported her to Troop 7
in Lewes where he adminietered a blood alcohol test.2
A probable cause hearing was held on March 3t, 2014. Following the hearing, the
hearing officer found. that. Corporal Mills had probable cause to arrest Macklin for
driving under the influence pursuant to 12 Del. C. {:3 4177, and that the State had met its
burden by a preponderance of the evidence to find that Mzicklin had violated Section
4177. Macklin appealed the DMV’S decision to this Court.
Standard of Review
"The scope of review of an appeal from an adminietrative decision of the
Division of Motor Vehicles is limited to correcting errors of law and determining
3 The hearing officer did not consider the blood almhol test results in her ruling as the State could not
prove that the intoxilyzer’s reliability was certified prior to the reading.
4
whether substantial evidence of record exists to support the findings of fact and
conclusions of law."3
If substantial evidence exists, this Court "may not re—weigh and substitute
its own judgment for that of the Division of Motor Vehicles,” because "the
hearing officer is in the best position to evaluate the credibility of
witnesses and the probative value of real evidence.” Findings of the
hearing officer will not be Overturned so long as they are “sufficiently
supported by the record and [are] the productls] of an orderly and logical
deductive process.” However, “when the facts have been established, the
hearing officer's evaluation of their legal significance may be scrutinized
upon armeal.”4
When reviewing a Commissioner’s decision on a case—dispositive determination,
the judge of the Court reviews the decision d6 nova. A judge m 213! accept, reject, or
modify in whole or in part the findings or recommendations made by the
Commissioner.S
Discussion
Macklin sets forth several objectione to the Commissioner’s Report. First,
Macklin argues that the Commissioner’s Report improperly references her intoxilyzer
results. After stating the reading, the Commissioner’s Report immediately
acknowledges that the intoxilyzer results were not considered by the DMV in its
probable cause analysis as the proper foundation as to the reliability of the intoxilyzer
could not be eetablished. Because the reading was not a factor in either the hearing
‘ Eekricige 1'. Vnslmfl, 59.3 AQCI 589, 1991 WL 784371 (Del. 1991).
4 Spt’m‘vr ?-‘. Cohen, 20 [3 WI. Sflgilflti, *2 (Del. Com. l‘l. Oct. 1, 2013).
" Ct. Com. Pl. (Liv. l{.112(/"t]{4}(iu).
5
officer’s decision or the Commissioner’s Report, its inclusion in the report was harmless
HITCH”.
Second, Macklin argues that the traffic stop did not comport with the
requirements under Blowningdale o. 5:51th and thus there was no reasonable articulable
suspicion for the stop. Specifically, Macklin argues that Blow-ningdrzle requires an
anonymous caller to give information as to what the driver was doing or not doing to
cause the caller to label them a "possible drunk driver.” In addition to corroborative
details regarding description of the vehicle and its location, Bloomingdale requires that
the informant provide sufficient information to support the inference that it witnessed a
traffic violation that warrants an immediate stop. (emphasis added)? In the instant case,
the anonymous caller reported a “possible drunk driver." While the caller did not
report that the driver committed a specific traffic violation, DUI is a crime codified
under 21 Del. Ci § 417?. Furthermore, the testimony of Corporal Mills before the DMV
hearing officer was that he advised Macklin that he was stopping her because someone
behind her called 911 about her erratic driving. The caller’s detailed description of the
vehicle was confirmed and corroborated by Corporal Millsfi‘ In this instance, as in
Biooiiiingdalr’, Corporal Mills was permitted to give greater weight and credence to the
5 Bloomingdale ‘Z'. State, 842 A.2d 1212 (Del. 2004).
lid. at1222.
3 lil. ("To support reasonable suspicion for a 713W}; stop, anonymous tips ncu’n‘mlljyr should provide
sufficient information, such as an accurate description of the vehicle, its license plate number, its location
and direction of travel, or other details, to enable the officer to be certain {he} has identified the correct
vehicle”)
(3
anonymous tip of "erratic driving" and “possible DUI” based on the precise description
of the vehicle, Corporal Mills corroboration of the descriptive features of the vehicle and
the location of its travel in close temporal proximity to when the report was made.9
Thus, there was a sufficient inference that the caller witnessed a traffic violation.
Third, Macklin argues that the hearing officer’s finding that she was drinking
was not supported by the evidence. Macklin argues that her admission that she had one
drink was not an admission to drinking, but merely an admission to having one drink
prior to being stopped. Based on the testimony of Corporal Mills, it is clear that Macklin
admitted to drinking alcohol that evening.
Fourth, Macklin argues that several factual findings by the hearing officer
regarding the field tests were in error leading to a conclusion that substantial evidence
did not exist to support the hearing officer’s conclusion. In her report, the
Commissioner points to several well-grounded factual conclusions made by the hearing,r
officer that supported a determination that substantial evidence existed. The
Commissioner’s Report detailed the numerous problems Macklin had while performing
the walk—and-turn test. The Commissioner’s Report described Macklin’s poor
performance in the counting test. The Commissioner’s Report also described how
‘5 l'a'~ at 1221 ("lam officer‘..should be permitted to give greater credence to an anonymous report of
unsafe driving when it is supported by: (a) the precise description of the vehicle; and (b) the officer's;
corroboration of the descriptive featu res of the vehicle and the location of its travel in close temporal
proximity to when the report was made").
'7
l'
Macklin provided Six clues for the HGN test and swayed, put her foot clown, and raised
her arms on the one-legged stand test. Thus, despite minor immaterial factual errors in
the hearing officer’s findings, the sum of the evidence regarding the field tests supports
a finding of substantial evidence.
Fifth, Macklin argues that there was no probable cause for the arrest by citing to
a recent unpublished Superior Court decision that held that evidence of impaired
driving is "very important” in determining probable cause for DUI (.iffenseei‘” This
argument ignores the evidence of the 911 call reporting a possible drunk driver and
Corporal Mills’ testimony that he told Macklin there was a report of erratic driving.
Furthermore, Macklin admitted to drinking that evening, had. a strong odor of alcohol
on her breath, droopy, bloorishot eyes, and exhibited poor performance on the four field
sobriety tests. Viewing the evidence in the totality of the circumstances, there was
substantial evidence that the officer had probable cause to arrest Macklin for driving
under the influence.“
Sixth, Macklin argues that the hearing officer, who is untrained in NHTSA, erred
by characterizing her performances on certain DUI tests as “pass” or "fail." However,
the hearing officer’s characterizations came directly from Corporal Mills’ testimony.
During his testimony, Corporal Mills detailed Macklin’s poor performance on the HGN
1” State it. 'I‘immmm, Case No. l_3»~f}9~ii973, 2, J. Bradley (Del. Super. April 1?, 2014).
‘1 Lift-brim v. Shifts, 19 Afid 28?, 292-93 (Del. 20H).
8
test, the walk—and-turn test, the one-legged stand test, and the counting test. Corporal
Mills summarized Macklin’s performance on the field tests by stating she "performed
well on some tests and failed numerous other 0111255”? The hearing officer's report refers
only to those four tests as failures. The hearing officer’s conclusion that the tests were
failures was not a product of her own independent determination but was based on a
logical inference from Corporal Mills’ testimony.
Finally, Macklin argues that the hearing officer’s finding that Macklin violated
Section 4177 by a preponderance of the evidence was incorrect. Given the numerous
legitimate factual findings in the hearing officer’s report ~ the anonymous tip of a
possible DUI and erratic driving, parking the vehicle at a 45-degree angle partially in
the roadway, the poor performance on various field tests, the odor of alcohol and
bloodshot, droopy eyes, and the admission to drinking — it is clear there was substantial
evidence to support the finding of a violation of Section 41??
Conclusion
The Commissioner’s Report and Recommendation correctly found that
substantial evidence existed to support the DMV’S conclusion that Appellant was
driving under the influence of alcohol. Appellant’s appeal of the Commissioner’s
Report and Recommendation is DENIED and the stay on. Appellant’s driverts license
suspension is lifted.
'31” Re :‘v‘lm‘klm, Hearng 'I'ranseripl, at 27 {March 31, 20M).
9
IT IS SO ORDERED this 2“d day Of June, 2015.
.1
‘ e onorable‘ osem ry Beaurega d a
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