State v. Rothenberg

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. N0. 1612006969
v. : Kent County
IRVIN C. ROTHENBERG,
Defendant.
Submitted: May 16, 2017
Decided: May 22, 2017
ORDER
Upon Defendant’s Motion to Suppress.

Deniea'.

Dennis Kelleher, Esquire, Department of Justice, Dover, Delaware; attorney for the

State of Delaware.

J ames M. Stiller, Jr., Esquire of Schwartz & Schwartz, Dover, Delaware; attorney for
the Defendant.

WITHAM, R.J.

State v. lrvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

Before the Court are a Motion to Suppress filed by Defendant Irvin C.
Rothenberg and a Response filed by the State. Mr. Rothenberg is charged With
driving a vehicle While under the influence of alcohol and/or drugs (DUI), in
violation of 21 Del. C. § 4177, and failure to yield to a vehicle in an intersection.
Defendant seeks to suppress all evidence. The parties presented evidence on May 16,
2017.

The Court finds that the State met its burden to show that the agent had a
reasonable and articulable suspicion of DUI When Mr. Rothenberg Was arrested.
There Was probable cause to support the administration of a portable breathalyzer and
later Intoxilyzer test. Mr. Rothenberg’s motion to suppress is DENIED.

FACTS

Mr. Rothenberg Was driving his car Westbound on Route 10 in Dover,
Delaware on December 10, 2016, around 4:30 in the aHemoon. He entered the left-
tum lane to make a left turn on Pine Cabin Road.

While Mr. Rothenberg Was in the left-turn lane heading Westbound, Agent
Bonniwell of the Delaware Division of Alcohol and Tobacco Enforcement Was
driving eastbound in his patrol vehicle, not equipped With a motor vehicle recording

(MVR) device.l He had a green light and Was entering the intersection With Pine

l Agent Bonniwell testified initially that he Was on his way in to Work at the time of the
incident, but later clarified that he Was on-duty from the moment he left his home in his uniform and
marked patrol car. Because the Court accepts Agent Bonniwell’s testimony that he Was on-duty
When the incident occurred, it will not reach Mr. Rothenberg’s argument, raised for the first time at
the hearing, that the agent lacked statutory authority to detain him for a traffic violation because the
agent Was off-duty at the time.

State v. Irvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

Cabin Road when Mr. Rothenberg began to execute a left turn across Agent
Bonniwell’s lane of traffic. Mr. Rothenberg’s left turn caused Agent Bonniwell to
“slam on [his] brakes and swerve to the left to avoid colliding with” Mr. Rothenberg’ s
car. Agent Bonniwell was able to see Mr. Rothenberg driving the car as he executed
his turn and continued southbound onto Pine Cabin Road. Agent Bonniwell made a
U-turn and then followed Mr. Rothenberg until he was able to activate his emergency
lights and stop him on Lemay Lane just south of Pine Cabin Road.

Initially, Mr. Rothenberg tried to get out of his car. Agent Bonniwell ordered
him to remain in the car, and Mr. Rothenberg complied. When he came up to the car,
Agent Bonniwell was able to smell a “strong odor” of alcohol. He noted that Mr.
Rothenberg’s eyes were constricted2 and that he was slurring his words. Mr.
Rothenberg said he was coming from Dover Downs and had one drink while there.

The agent asked Mr. Rothenberg to complete pre-exit tests. The first was the
Alphabet Test, which Mr. Rothenberg completed successfully except that he
continued listing a letter beyond those that the agent instructed him to recite. He then
successfully completed the Counting Test. He Was unable to complete the Finger-to-
Thumb test despite the agent demonstrating it to him several times.

The agent then asked Mr. Rothenberg to step out of the car to complete field
sobriety tests. Mr. Rothenberg immediately had difficulty stepping out of the car and
steadied himself with both arms. He maintained his balance by holding onto the car.

When the agent asked him to step away from the car, Mr. Rothenberg did so slowly

2 The agent’s police report indicated that Mr. Rothenberg’ s pupils were dilated, but the Court
credits Agent Bonniwell’s testimony at the hearing that his pupils were constricted.

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State v. Irvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

and kept his left hand close to the side of the car.

The agent administered the Horizontal Gaze Nystagmus test, which Mr.
Rothenberg completed with his glasses on. Mr. Rothenberg displayed lack of smooth
pursuit, distinct and sustained nystagmus at maximum deviation, and onset of
nystagmus prior to 45 degrees in both eyes. Mr. Rothenberg did not complete the
walk-and-turn or one-leg-stand test, apparently because he had a double hip
replacement Nonetheless, he began trying to walk in a straight line without being
told to do so, and the agent asked him to stop and complete the walk-and-turn test.
Mr. Rothenberg was unable to complete either of the tests.

The agent then had Mr. Rothenberg complete the portable breathalyzer test
(PBT) at 4:50 p.m., which resulted in a PBT of .223. Mr. Rothenberg told the agent
that his blood-alcohol content was “probably going to be high” before he blew into
the PBT. The agent then arrested Mr. Rothenberg and transported him to Troop 3.
Before transporting him, the agent conducted an inventory search of Mr.
Rothenberg’s car and discovered mouthwash, which Mr. Rothenberg admitted to
drinking.

After arriving at Troop 3, the agent began a twenty-minute observation period
at 6: 15 p.m. and Mr. Rothenberg blew into the Intoxilyzer at 6:38, yielding a BAC of
.207.

Mr. Rothenberg was indicted on one charge of driving a vehicle while under
the influence of alcohol and/or drugs, and another charge of failure to yield. This is
the Court’s decision on his Motion to Suppress and the State’s Response in

opposition.

State v. Irvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

THE PARTIES’ CONTENTIONS

Mr. Rothenberg seeks the suppression of all the evidence against him or,
alternatively, of the results of various pre-exit tests, field sobriety tests (FSTs), the
PBT, and his Intoxilyzer test. He alleges that the agent did not have a reasonable and
articulable suspicion to initiate the investigation, failed to create an MVR of the
incident, used unreliable pre-exit test methods, improperly administered the tests, and
lacked probable cause for his arrest, PBT, and Intoxilyzer test.

The State responds that the lack of an MVR does not entitle Mr. Rothenberg
to suppression, the pre-exit tests are admissible and part of the probable cause
analysis, even imperfectly administered field sobriety tests can contribute to probable
cause, and there was thus sufficient probable cause for the PBT, arrest, and
subsequent Intoxilyzer test.

STANDARD OF REVIEW

When a defendant moves to suppress evidence collected in a warrantless
seizure, the State bears the burden of proving by a preponderance of the evidence
“that the challenged police conduct comported with the rights guaranteed [to the
defendant] by the United States Constitution, the Delaware Constitution and
Delaware statutory law.”3

DISCUSSION
Mr. Rothenberg’ s motion is denied. The agent had a reasonable and articulable

suspicion to engage in the pre-exit tests and field sobriety tests. That reasonable and

3 State v. Kang, 2001 WL 1729126, at *3 (Del. Super. Ct. Nov. 30, 2001).

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State v. Ir'vin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

articulable suspicion was based upon the observed traffic violation, the odor of
alcohol, Mr. Rothenberg’s slurred speech, his constricted pupils, and his admission
that he had recently consumed alcohol. Even when the incorrectly conducted HGN
test and problematic walk-and-turn and one-leg-stand tests are excluded, additional
statements by Mr. Rothenberg and observations by the agent provided probable cause
to support Mr. Rothenberg’s eventual PBT, arrest, and Intoxilyzer test, Mr.
Rothenberg waived his argument regarding the MVR by not raising the matter at the
hearing, particularly in light of the agent’s uncontroverted testimony that his vehicle
was not equipped with an MVR device.
Reasonable and Articulable Suspicion for the Agent’s Investigation

The agent had a reasonable and articulable suspicion of DUI, based upon the
traffic violation, the odor of alcohol, Mr, Rothenberg’ s slurred speech, his constricted
pupils, and his admission that he had recently consumed alcohol, to engage in further
investigation

An investigatory stop is a “seizure” for the purposes of the Fourth
Amendment.4 When such seizures are “unreasonable,” they violate the Fourth
Amendment.5 A Terry stop “is reasonable when a law enforcement officer conducts
a brief investigatory traffic stop based on reasonable and articulable suspicion of
criminal activity.”6 “Reasonable and articulable suspicion is a less stringent standard

than the probable cause standard and requires a quantum of proof that is less than

4 Wesr v_ sra¢e, 143 A.3d 712, 716 (Dei. 2016).
5 Id.
6 ld. (citing Tewy v. Ohio, 392 U.s. 1, 20_21 (1968)).

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State v. Irvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

preponderance of the evidence.”7

A court determining whether an officer’s actions were supported by a
reasonable and articulable suspicion “must examine the totality of the circumstances
‘as viewed through the eyes of a reasonable, trained police officer in the same or
similar circumstances, combining objective facts With such an officer’s subjective
interpretation of those facts.”’8 “Courts will defer to the experience and training of
police officers.”9

An odor of alcohol and the commission of a traffic offense are enough, on their
own, to constitute a reasonable and articulable suspicion that a DUI offense has been
committed and to “justify a request that the driver perform some field sobriety
tests.”m Based upon the driver’s performance on those tests, the officer may discover
“facts that either elevate what was only a suspicion into probable cause, or dispel the
suspicion and result in no DUI arrest.”ll

Before beginning the pre-exit tests, the agent observed that Mr. Rothenberg’s
car had a strong odor of alcohol and that Mr. Rothenberg had failed to yield to him

in an intersection. That alone would create a reasonable and articulable suspicion that

DUI had been committed. Mr. Rothenberg’s answer to the agent’s follow-up

7 Purnell v. State, 832 A.2d 714, 719 (Del. 2003) (citing Woody v. State, 765 A.2d 1257,
1263 (Del. 2001)).

8 Id. (quoting Woody, 75 A.2d at 1263).
9 Id. at 719-20 (quoting Woody, 75 A.2d at 1262).

10 Lefebvre v. State, 19 A.3d 287, 295 (Del. 2011) (citing Esham v. Voshell, 1987 WL 8277,
at *2 (Del. Super. Ct. Mar. 2, 1987)).

“ Ia'.

State v. Irvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

question, indicating that he had a drink while at Dover Downs, further bolstered that
suspicion. Finally, Mr. Rothenberg’ s slurred speech and constricted pupils suggested
that he may have been impaired. The agent’s investigation was thus supported by a
reasonable and articulable suspicion of` DUI.
Probable Causefor the PBT, Arrest, and Intoxilyzer Test

The PBT, later arrest, and Intoxilyzer test were supported by probable cause,
based in part on the same grounds that gave the agent a reasonable and articulable
suspicion of DUI. In addition, Mr. Rothenberg’s performance on the pre-exit tests
and his behavior during the investigation solidified the necessary probable cause for
a PBT, arrest, and Intoxilyzer test.

Delaware courts “determine probable cause by the totality of the circumstances,
as viewed by a reasonable police officer in the light of his or her training and
experience:”

To establish probable cause, the police need only present facts
suggesting, in the totality of the circumstances, that a fair probability
exists that the defendant has committed a crime. “A finding of probable
cause does not require the police to uncover information sufficient to
prove a suspect's guilt beyond a reasonable doubt or even to prove that
guilt is more likely than not.”12

As a threshold matter, there is no authority for Mr. Rothenberg’s contention
that pre-exit tests may not be used to establish probable cause. To the contrary, courts

have held such tests to be an appropriate part of a probable cause analysis and even

12 Miller v. State, 4 A.3d 371, 373-74 (Del. 2010) (citations omitted).

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State v. Irvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

permitted their use to establish guilt.13 Accordingly, the results of those tests are
relevant to a finding of probable cause and are also potentially admissible as evidence
of guilt.

As to the other field sobriety tests (the HGN, the walk-and-turn, and the one-
leg-stand tests), Mr. Rothenberg has raised issues with the way they were
administered, suggesting that those issues make the tests unusable in determining
probable cause. An incorrectly administered field sobriety test generally cannot be
used to establish probable cause.14 The State must lay a foundation for the NHTSA
standards and the officer’s compliance with those standards15

The issues with the HGN test merit disregarding the results for the purposes of

determining probable cause. The agent neglected to ask at any point if Mr.

13 E.g., Guilfoil v. State, 135 A.3d 78 (Table), 2016 WL 943760, at *5 (Del. Mar. ll, 2016)
(including among “overwhelming evidence . . . in favor of conviction” the defendant’s failure at the
alphabet and counting tests); Lefebvre, 19 A.3d at 293 (citing Bease v. State, 884 A.2d 495, 497-98
(Del. 2005)) (“[A]s this Court held in Bease, evidence of a traffic violation, odor of alcohol, rapid
speech, admission to drinking, bloodshot and glassy eyes and a failed alphabet test constituted
probable cause to arrest the driver for a DUI offense.”); State v. Lackford, 2014 WL 123 0765 , at *1,
*4 (Del. Super. Jan. 29, 2014) (poor performance on pre-exit field sobriety tests, including finger
dexterity test, is part of the totality of circumstances analysis for probable cause).

14 See Miller v. State, 4 A.3d 371 , 374 (Del. 2010) (“Because [the officer] did not testify as
to the NHTSA standards or compliance with those standards, the trial judge erred by considering
the results of these tests in his probable cause analysis.” (emphasis added)); State v. Mulhollana', No.
1108002781, 2013 WL 3131642, at *6 (Del. Ct. Com. Pl. June 14, 2013). But see State v. Murray,
No. 1306022016, 2014 WL 4178345, at *3 n.ll (Del. Ct. Com. Pl. Aug. 22, 2014) (failure to follow
NHTSA standards does not disqualify tests from consideration in probable cause determination);
State v. Lanouette, No. 0803028532, 2012 WL 4857820, at *8 (Del. Ct. Com. Pl. Aug. 27, 2012)
(same); State v. Ministero, No. 0306011221, 2006 WL 3844201, at *2 (Del. Ct. Com. Pl. Dec. 21,
2006) (same).

15 Miller, 4 A.3d at 374.

State v. Irvz`n C. Rothenberg
I.D. No. 1612006969
May 22, 2017

Rothenberg had eye issues, neglected to ask him to remove his glasses, and may not
have followed the NHTSA standards. Accordingly, the results of the HGN will not
be considered for the purpose of determining probable cause.

Similarly, the State has not shown that Mr. Rothenberg’s refusal to complete
the walk-and-turn and one-leg-stand tests was due to something other than his double
hip replacement The question of why he refused to complete the tests may be
relevant to the question of guilt, but the results as such do not contribute to the
determination of probable cause.

The facts show that the agent observed Mr. Rothenberg for more than fifteen
minutes prior to administering the PBT. There is no evidence that the PBT Was not
properly administered, nor is there anything to suggest that there was alcohol that
remained in Mr. Rothenberg’s mouth prior to the administration of the PBT. The
results of the PBT will be considered in determining whether there was probable
cause for arrest or the subsequent Intoxilyzer test,

The agent had ample probable cause for Mr. Rothenberg’s PBT, subsequent
arrest, and Intoxilyzer test. Beside the traffic violation, the odor of alcohol, Mr.
Rothenberg’s slurred speech, his constricted pupils, and his statement that he had
recently consumed alcohol, the agent also had the benefit of Mr. Rothenberg’s failed
performance on the pre-exit tests, and his observation of his behavior during the
investigation, including his difficulty maintaining his balance. In addition, before

submitting to the PBT, Mr. Rothenberg told the agent the result would be high.

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State v. [rvin C. Rothenberg
I.D. No. 1612006969
May 22, 2017

Under any precedential authority on the subject,16 the evidence available to the agent
constituted probable cause for Mr. Rothenberg’s arrest.
CONCLUSION
The investigation of Mr. Rothenberg was supported by a reasonable and
articulable suspicion of DUI. His PBT, arrest, and Intoxilyzer test were supported by
probable cause. His motion to suppress is thus DENIED.

IT IS SO ORDERED.
Hon. fgilliam L. Witham, Jr.

Resident Judge

WLW/dmh
oc: Prothonotary
xc: Dennis Kelleher, Esquire
J ames M. Stiller, Jr., Esquire

16 See, e.g., Bease v. State, 884 A.2d 495, 499-500 (Del. 2005) (probable cause existed
where defendant “spoke in a rapid manner . . . , smelled of alcohol, admitted that he consumed
alcoholic beverages the night before, had bloodshot and glassy eyes, and had just committed a traffic
violation . . .”); see generally ia'. at 498-99 (collecting cases).

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