IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
V. ) Case No.: 1704019023
)
_]EI""l-`"REY PE'I`ERSON, j
)
Defendant. _ )
Submitted: February 7, 2018
Decided: April 16, 2018
Jillian Schroeder, Esquire David JJ. Facciolo, Esquire
Delaware Department Of]ustice Minister & Facciolo LLC
Carvel State Building, 7fh Floor 521 North West Stteet
820 N. French Stteet Wihnington, DE 19801
Wilmington, DE 19801 Alfom@/for Defendam‘
Az'wmej/for the jfa¢e 0fDe/au/are
MEMORANDUM OPINION AND ORDER
ON DEFENDA.NT’S MOTION TO SUPPRESS
sMALLS, C.J.
FACTUAL AND PROCEDURAL HISTORY
On April 29, 2017, ]effrey Peterson (“Defen'dant”) Was arrested for the offenses of
Driving a Vehicle Under the lnfluence of Alcohol, (DUI), in violation of 21 De/. C. §4177;
Driving Vehicle at Unreasonable Speed or Imprudent Speed, in violation of 21 De/. C.
§4168(21); and Operating a Vchicle with lmproper Winclow 'I`int, in violation of 21 De!. C.
§4313(€). The facts Which gave rise to these proceedings indicate Defendant Was driving on
Naamans Road When Cpl. AndreW Pietlock (“Pietlock”) of the Delaware State Police pulled
him over for allegedly speeding Upon approaching Defendant’s vehicle, Pietlock detected a
moderate odor of alcohol and instructed Defendant to exit the vehicle in order to conduct
field sobriety testing. Subsequently, Pietlock arrested Defendant and charged him With the
above offenses
On October 24, 2017, Defendant filed this Motion to Suppress pursuant to Court of
Common Pleas Criminal Rule 12(b), to exclude field sobriety and breath test results.
Defendant argues Pietlock should not have administered the one leg stand field sobriety test
due to steel strut implants in his leg. Defendant avers the implants caused him to sway
during the test and he explained to Pietlock that he Was incapable of performing the test
properly. Furthermore, Defendant alleges the test Was administered on a Wet, uphill surface
Where severe fog Was beginning to accumulate
On February 7, 2018, a hearing Was held on Defendant’s Motion to Suppress.
During the motion hearing, Pietlock testified he Witnessed Defendant turn onto Naamans
Road, accelerate quickly, and continue traveling at a high rate of speed. Pietlock followed
Defendant’s vehicle and testified he had to reach a speed limit of eighty (80) miles per hour
to catch up to the vehicle. However, the speed recorded on the Motor Vehicle Recorder
(l\/IVR) in the police vehicle indicated his vehicle only reached a speed of fifty-two (52) miles
per hour, which is just above the fifty (50) mile per hour speed limit for roads in that
classification1 Pietlocl< also testified that once he initiated his overhead lights, Defendant
took longer than usual to pull oven Upon making contact with the Defendant, Pietlock
testified he detected a moderate odor of alcohol emanating from Defendants’ breath and
there was another person in the passenger side of the vehicle. Defendant stated he
consumed a couple beers and some Hennessey earlier that night Pietlock further testified
Defendants eyes appeared glassy and bloodshot. The other passenger was clearly intoxicated
and his behavior was erratic as detected by the MVR audio.
Pietlock instructed Defendant to exit his vehicle to perform field sobriety tests.
There was a discussion regarding Defendant’s ability to perform the field tests. Defendant
told Pietlock he had a fracture to his left leg and he was being treated for the injury. Pietlock
testified that Defendant advised him he could not perform the walk and turn test but,
voluntarily performed the balance test.
Notwithstanding this information, Pietlock administered the tests. He first
administered the balance test where he instructed the Defendant to lift his injured leg six (6)
inches off the ground for thirty (30) seconds Pietlock testified that Defendant failed the
one leg test by dropping his foot at seventeen (17) seconds and his arms moved away from
1 This difference in speed was not properly explained in testimony thus, there is a question regarding the
validity of the stop.
his body. Thereafter, Pietlock attempted to administer the walk and turn test. This test was
interrupted by the actions of the passenger.
Subsequently, Pietlock administered the finger dexterity test in which he testified
Defendant failed by not touching his fingertips. Ultimately, Defendant was given a Portable
Brcath "l"est (PB'[`), Which Pietlock testified he failed as well Based upon these test tesults,
Pietlock opined that Defendant was under the influence of alcohol and placed him into
custody. During cross-examination, Defense counsel questioned Pietlock regarding the
incline and fog conditions in the area where the field sobriety tests were administered
The Defense called Lynda Rae Kopishke, (“Kopishke”) a Forensic Nurse, to testify
on behalf of the Defendant in regards to his medical conditions.2 As a part of her testimony,
Kopishke referred to the medical records of Defendant which included an assessment of his
injuries3 Kopishke referred to the billing records in order to assess the amount of surgeries
he received. The Christiana Care Health Services report indicates the nature and extent of
surgeries and types of hardware that were implanted in Defendant’s leg Kopishld 287, 293 (Del. 2011).
12 §z‘az‘€ v. C¢zm'omz, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008) (quoting Stal‘e a Mczxwe//, 624 A.2d 926,
928 (Del. 1993)).
The factors here include the Defendant was pulled over for allegedly speeding, the
officer detected a moderate odor of alcohol emanating from the Defendant's person, he had
glassy eyes, and his speech was slurred. Therefore, the officer had sufficient facts to request
the Defendant to perform field sobriety tests.
DISCUSSION
Defendant argues the manner in which the field sobriety tests were administered by
Pietlock did not take into consideration the serious physical injuries of Defendant and the
road and weather conditions. Defendant also argues the injury to his leg affects his stability
to maintain his balance and his history of stuttering inhibits his speech. In addition, the area
where the field sobriety tests were performed was on an incline and there was an increasing
amount of fog Therefore, Defendant argues the field sobriety tests must be suppressed; the
basis of the stop is questionable because of being only pulled over for speeding; and there
was an insufficient basis to administer a PBT.
The State argues Defendant admitted to Pietlock that he had consumed beer and
Hennessey earlier that night In addition, Defendant failed the finger dexterity and PBT test
Furthermore, the State alleges the one leg stand test was properly administered by Pietlock.
The State argues standard field sobriety tests are not required for a finding of probable cause
under Lej%bwe a 5!¢1!€.13 The State alleges that there is more than enough here for probable
cause when excluding the one leg stand test This includes the traffic violation, (Speeding),
the moderate odor of alcohol, admission to drinking, bloodshot glassy eyes, the finger
dexterity test and failed PBT. The State argues the facts under the totality of the
13 19 A.zd 287 (Dei.super 2011).
circumstances support a basis to find probable cause to place Defendant under arrest for
DUI.
In mee a Mz`nz'i'z‘ero, the Court excluded the field sobriety tests because the officer
failed to comply with the National Highway Traffic Safety Administration (NHTSA)
, ,,,,guidelines,in,that,lwhere,therefs,an,indication,of,some,physical,disability,,that,test,is,not,to,_,i,
be performed.”14 In julie a Degmng`z'i, the Court did not consider the results of . .. the one-
leg stand test because [the officer] had Defendant perform the tests even though he
informed her of physical injuries.15 Furthermore, in italia a I