State v. Bender

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
v. )
)
LAUREN BENDER, ) I.D. No. 2201003902
)
Defendant. )
)
)
)
)
Date Submitted: July 21, 2023
Date Decided: August 11, 2023
Upon Defendant’s Motion to Suppress. DENIED.
ORDER
Alexandra L. LeRoy, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.
Joseph A. Hurley, Esquire, Wilmington, Delaware, Attorney for Defendant.
SCOTT, J.
1
Introduction
Before the Court is Defendant Lauren Bender’s (“Defendant”) Motion to
Suppress, brought by counsel. Defendant Lauren Bender was indicted for driving
under the influence (“DUI”) under 21 Del. C. § 4177(a).1 Presently before the Court,
Defendant has moved to suppress the results of a portable breathalyzer test (“PBT”)
and all evidence collected after her arrest, arguing that the arresting officer lacked
probable cause. The Court has reviewed the motion and the State’s response and
held a suppression hearing. For the following reasons, the Defendant’s Motion is
DENIED.
Findings of Fact
On January 12, 2022, a Newark Police Officer (“Arresting Officer”) observed
Defendant’s vehicle run a red light at the intersection of Veterans Drive and South
Main St. in Newark, Delaware. Subsequently, Arresting Officer initiated a traffic
stop on Defendant. The incident was recorded on video through Arresting Officer’s
motor vehicle recorder and body worn camera, such video footage of the stop and
subsequent investigation has been submitted and reviewed by this Court. Upon
speaking with Defendant after initiating the stop, Arresting Officer observed
Defendant’s eyes were bloodshot and glassy, and her face flushed. In addition,
Arresting Officer maintained Defendant’s speech was slurred, and she was “talkative
1
See Indictment, State v. Bender, ID No. 2201003902 (D.I. 2).
2
and giggly.” Further, Arresting Officer observed what he believed to be the top of
a liquor bottle under a dog bed on the backseat floorboard of the vehicle.
Upon the above observations, Arresting Officer directed Defendant to recite
a portion of the alphabet and count backwards from 76-61. Defendant failed to
perform tests as instructed. After Defendant stepped out of the vehicle, Arresting
Officer administered a Horizontal Gaze Nystagmus (“HGN”) test. Arresting Officer
observed 6 of 6 clues that were indicative of impairment.
Next, Arresting Officer instructed Defendant to perform a Walk and Turn and
One Leg Stand test. When asked whether she had any physical or medical condition
that would prevent her from completing the tests, Defendant informed Arresting
Officer that she had numbness in her feet. Defendant performed the Walk and Turn
test, and Arresting Officer observed 7 clues, which, according to the National
Highway Traffic Safety Administration (“NHSTA”), suggests impairment. When
asked to perform the One Leg Stand test, Defendant initially declined. Defendant,
however, eventually complied and failed that test as well.
After failing both the Walk and Turn and One Leg Stand tests, Arresting
Officer administered a PBT which resulted in a .189% blood alcohol content. A
subsequent search of Defendant’s vehicle revealed an empty bottle of vodka under
the passenger seat and a half-empty bottle of vodka underneath a dog bed on the
3
backseat floor. Arresting Officer placed Defendant under arrest and transported her
to Newark Police Department, where Defendant failed an intoxilyzer test.
Defendant filed her motion to suppress on April 11, 2023, to which the State
responded on May 5, 2023. Hearing on this issue was held on July 21, 2023.
Discussion
Defendant moves to suppress the PBT results and all evidence recovered after
her arrest (including the intoxilyzer results) on the ground that Arresting Officer
lacked probable cause to administer the PBT. To support her contention, Defendant
challenges the validity or administration of four sobriety tests conducted by
Arresting Officer. First, Defendant contends that the alphabet and counting test lack
scientific merit to accurately evaluate impairment by drugs or alcohol. Second,
Defendant claims that Arresting Officer improperly required a Walk and Turn and
One Leg Stand test because Defendant’s physical and medical conditions prevented
her from adequately completing either test.
A breath test is a search and thus, triggers “Fourth Amendment requirements
and protections.”2 Subject to those constitutional protections, a police officer must
have probable cause to believe a person is driving under the influence “before
requiring the person submit to chemical testing.”3
2
Bease v. State, 884 A.2d 495, 498 n.4 (Del. 2005).
3
Lefebvre v. State, 19 A.3d 287, 292 (Del. 2011).
4
Probable cause is determined by the totality of the circumstances and requires
a showing of a probability that criminal activity is occurring or has occurred. 4
Probable cause exists where the facts and circumstances within the police officer's
knowledge, and of which the police officer had reasonably trustworthy information,
are sufficient in themselves to warrant a person of reasonable caution to believe that
an offense has been or is being committed.5 In the context of a DUI arrest, probable
cause “exists when an officer possesses ‘information which would warrant a
reasonable man in believing that [such] a crime ha[s] been committed.’”6 This
standard is satisfied upon a factual showing, when viewed under the totality of the
circumstances, suggesting “a fair probability that the defendant has committed a DUI
offense.”7 Stated differently, the arresting officer must “possess a quantum of
trustworthy factual information” to suggest that the driver is under the influence.8
Here, Defendant challenges the validity or use of the (1) alphabet test; (2)
counting test; (3) Walk and Turn test; and (4) One Leg Stand test. Setting aside all
4
State v. Maxwell, 624 A.2d 926, 928 (Del.1993).
5
Id. at 930 (citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302,
93 L.Ed. 1879 (1949)).
6
Lefebvre, 19 A.3d at 292 (quoting Clendaniel v. Voshell, 562 A.2d 1167, 1170
(Del. 1989)).
7
Id. at 292-93 (internal quotation marks omitted).
8
Id. at 293.
5
other purported observations made by Arresting Officer suggesting that Defendant
was impaired, Defendant’s arguments lack merit.
To the extent Defendant challenges the scientific reliability of the alphabet or
counting test, those tests have been routinely used by police and routinely recognized
by Delaware courts as permissible to establish probable cause for a DUI offense.
Defendant argument references no authority—scientific, legal, or otherwise—to
contest the validity of these sobriety tests.
Similarly, Defendant’s challenge to Arresting Officer’s use of the Walk and
Turn and One Leg Stand test is unavailing. Defendant claims that police officers are
not permitted to administer such tests when a suspect provides a limiting physical or
medical condition. Despite claiming that “NHTSA [guidelines] and Delaware case
law” support her position, Defendant again fails to provide any supporting
authority.9
Contrary to Defendant’s categorical position, this Court, in Slaney v. State,
rejected a “blanket rule” excluding results from a Walk and Turn and One Leg Stand
test whenever a suspect discloses a physical or medical condition allegedly
preventing them from completing either test.10 Instead, trial courts are afforded
9
Def.’s Mot. to Suppress ¶ 9.
10
Slaney v. State, 2016 WL 5946485, at *4 n.65 (Del. Super. Ct. Oct. 7, 2016) (“The
Court does not accept this blanket rule, for such a policy would inevitably encourage
those suspected of DUI to disclose any injury that he or she has ever incurred to
prevent an officer from administrating field tests regardless of whether the injury
6
discretion to weigh the evidentiary value of the sobriety tests based on the record
presented.11 “Failed sobriety tests may be held to be unsupportive of probable cause
when proper instructions are not given, the test is administered in a rushed manner,
the defendant is not physically amenable to the test, or the officer otherwise fails to
observe the NHTSA standards of administration.”12
Here, Defendant claims that she suffered from numbness in her feet and was
unable to perform either test. A determination of the underlying facts and how much
weight to give the Walk and Turn and One Leg Stand test would ordinarily be a
factual determination made the suppression hearing. However, even accepting
Defendant’s reasoning for her inability to perform the Walk and Turn and One Leg
Stand tests, probable cause to conduct the DUI arrest exists. Defendant does not
contest that she ran a red light and failed the HGN test. The alphabet and counting
tests were credible and there were additional observations made by Arresting
Officer, including: (1) bloodshot and glassy eyes; (2) flushed face; (3) talkative and
was presently disabling.”). Notably, Defense counsel in the instant case also
represented the defendant in Slaney.
11
Id. at *4 (“…it is within the appropriate discretion of the trial court to determine
what weight to give sobriety tests, and so long as there is evidence in the record to
support the trial court’s decision, this Court is not in a position to overturn that
assessment.”) (internal quotation marks omitted); see also Miller v. State, 4 A.3d
371, 374 (Del. 2010) (affording trial court latitude to weigh evidentiary value of
sobriety tests in light of evidence); State v. Ministero, 2006 WL 3844201, at *4 (Del.
Super. Ct. Dec. 21, 2006) (same).
12
State v. Iubatti, 2017 WL 3396493, at *2 (Del. Super. Ct. Aug. 7, 2017) (citing
Miller, 4 A.3d at 374).
7
giggly demeanor; (4) slurred speech; and (5) the top of what Arresting Officer
believed to be a liquor bottle, suggesting that Defendant was impaired. The State has
established that Arresting Officer had probable cause to arrest Defendant, even if
this Court were to exclude the Walk and Turn and One Leg Stand test results.
Considering all these factors, this Court finds there was probable cause to support
Arresting Officer arresting Defendant for DUI. There is no reason for this Court to
consider the weight of the evidence of the Walk and Turn and One Leg Stand test in
the determination for probable cause because even without those tests, probable
cause exists.
CONCLUSION
For the aforementioned reasons, Defendant’s Motion to Suppress is hereby
DENIED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
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