IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
Plaintiff,
L.D.: 1911003426
eS
BARRY BINKLEY,
Newer Nome Nee Nee ree” ee ee” NL”
Defendants.
ORDER ON DEFENDANT’S MOTION TO SUPPRESS
Defendant Barry Binkley was arrested and charged with the offense of driving under the
influence (“DUI”) on November 6, 2019. Mr. Binkley thereafter filed a Motion to Suppress (the
“Motion”) all evidence at trial, including the results of a blood test taken from Mr. Binkley to
determine his blood alcohol concentration. The State opposed the Motion. For the reasons set
forth below, the Court finds that probable cause supported Corporal Duffy’s actions on November
6, 2019 and, therefore, the Motion to Suppress is DENIED.
At approximate 6:50 PM on November 6, 2019 Corporal Tracey Duffy of the New Castle
County Police, arrived at the scene of a two-car motor vehicle accident in New Castle County,
Delaware. The driver of a white sedan pulled out of her driveway into the path of Defendant’s
pickup truck. Defendant was injured in the accident and suffered broken ribs, a cracked sternum,
a crushed left pinky finger and a tendon injury on his right hand. Defendant was transported to
the hospital were his blood was drawn pursuant to a search warrant. Defendant’s blood test
showed that he had a blood alcohol concentration (“BAC”) of .18. This BAC represented more
than twice the legal threshold for a DUI offense in the state of Delaware.
Upon arriving at the scene Corporal Duffy observed two vehicles, a white sedan stopped
on the shoulder of the roadway and a pickup truck with severe front-end damage stopped in the
roadway. Corporal Duffy determined that the pickup belonged to Defendant. Corporal Duffy
observed that there was an opened can of Smirnoff’s Smash Cherry Lime beverage, one bottle of
Burnett’s vodka and a bottle of Budweiser beer inside the pickup truck. Corporal Duffy also
observed 2 opened bottles of Budweiser in the grassy area of the shoulder of the road located next
to the pickup truck.
Defendant spoke with Corporal Duffy at the scene of the accident. Defendant admitted to
Corporal Duffy that he had been drinking alcohol earlier in the day at approximately 3:00 p.m.
This was confirmed by a passenger in Duffy’s car. Corporal Duffy observed that Defendant’s eyes
were glassy, and she smelled an odor of alcoholic beverage. Corporal Duffy also observed that
Defendant had a 3 to 4 inch laceration to the center of his forehead close to his hairline. Despite
his injury, Defendant indicated that he was fine and that he did not want to go to the hospital.
Corporal Duffy asked the Defendant to submit a breath sample into a portable breath test (“PBT”)
machine. The Defendant refused.
Based upon this information, Corporal Duffy arrested Defendant for suspicion of Driving
Under the Influence. Corporal Duffy also applied for a warrant to draw blood from Mr. Binkley in
order to perform a BAC test. The Justice of the Peace Court granted the warrant.!
A person who operates a motor vehicle on a Delaware roadway is deemed by statute “to
have given consent to chemical tests, including a test of the breath to determine the presence of
alcohol or drugs.””? Since chemical testing constitutes a search, constitutional protections require
a police officer to have probable cause to believe a person was driving while under the influence
of alcohol or drugs before requiring the person submit to chemical testing.’ To meet this standard,
'While the Court has viewed the video recordings of the investigating police officer’s body camera taken during the
incident, which was provided at the Court’s request, it has decided this matter on the Four Corners of the Affidavit.
The Court’s review of the video evidence leads to the conclusion that it is consistent with and confirms the material
within the Affidavit.
221 Del. C. §2740(a).
3 Jennifer L. Lefebvre v. State of Delaware, 19 A.3d 287 (2011).
4 Id.
police must “present facts which suggest, when those facts are viewed under the totality of the
circumstances, that there is a fair probability that the defendant has committed a DUI offense. That
hypothetically innocent explanations may exist for facts learned during an investigation does not
preclude a finding of probable cause.” What is required is that the arresting police officer possess
a “quantum of trustworthy factual information” suffice to warrant a reasonable person in believing
a DUI offense has been committed.°
No precise formula exists for determining probable cause. Instead Delaware courts have
defined and refined, through a variety of factual contexts, the boundaries of what constitutes
probable cause for a DUI offense.’
When Corporal Duffy arrived at the scene of the accident at approximately 6:50 p.m., she
observed a damaged pickup that belonged to the Defendant. Containers of alcohol and beer were
located in and around Defendant’s pickup truck. When he was questioned by Corporal Duffy, Mr.
Binkley admitted to drinking alcohol several hours earlier, at around 3 PM. This fact was
confirmed by a passenger in Binkley’s car. Corporal Duffy observed that the Defendant’s eyes
were glassy and that there was an odor of alcohol about the defendant. Binkley also refused consent
to submit a breath sample. Given all of these facts, Corporal Duffy had probable cause to believe
that Defendant had been driving under the influence of alcohol and that a blood test to determine
Defendant’s BAC was appropriate under a totality of the circumstances.®
I now turn to the blood draw, which was taken after Corporal Duffy obtained a search
warrant. The Defendant bears the burden of establishing that the challenged search or seizure was
unlawful on a motion to suppress challenging the validity of a search warrant.’ Delaware law
5 Id.
8 Jennifer Lefebvre v. State of Delaware, 19 A.3d 287, 292 (Del. 2011); State of Delaware v. Conrad Kamwani 2018
WL 2448110 (May 31, 2018).
Td.
8 Roosevelt H. Bease v State of Delaware, 884 A.2d 495 (Del Supr., 2005).
8 State of Delaware v. Sean M. Sisson, 883 A.2d 868 (Del. Supr. 2005).
contemplates a “four corners” test for determining whether the warrant was issued upon probable
cause.!° The factual showing in the an affidavit necessary to establish probable cause is dependent
on two factors (1) probable cause that a crimes was committed, and (2) probable cause to believe
that evidence of the crime can be found at the place to be searched.'! Delaware courts reviewing
a magistrate’s probable cause determination must consider whether the affidavit sets forth facts
“permitting an impartial judicial officer to reasonably conclude that the items sought would be
found at the location [to be searched.]”!* A magistrate’s finding of probable cause in this situation
should be based on the totality of the circumstances.'? Therefore, a reviewing court must ensure
that the magistrate had a “substantial basis’ for concluding that probable cause existed, while in
the process giving “great deference” to the issuing magistrate’s probable cause determination.“
The totality of the circumstances outlined in the warrant point to a fair probability that the
Defendant drove under the influence of alcohol. Corporal Duffy stated in her affidavit that when
she arrived at the scene of this two-vehicle accident she observed a pickup that belonged to the
Defendant. In and around that pick up were bottles of alcohol and beer. When questioned, Mr.
Binkley admitted to drinking earlier in the day at around 3 p.m. This fact was confirmed by a
passenger in Binkley’s car. Corporal Duffy observed that the Defendant’s eyes were glassy and
that there was an odor of alcoholic about the defendant. Based on the information provided in the
Affidavit of Probable Cause, the magistrate had probable cause to find that the Defendant had been
driving under the influence of alcohol, and that a blood draw and test to determine the Defendant’s
was appropriate under a totality of the circumstances. Accordingly, the Court holds that the
warrant to draw blood is valid. Therefore, the Motion to Suppress is DENIED.
10 Joe Louis Pierson v. State of Delaware, 338 A.2d 571 (Del. Supr., 1975), State of Delaware v. Conrad Kamwani,
2018 WL2448110 (May 31, 2018).
11 Thomas Legrande v. State of Delaware, 947 A.2d 1103 (Del. Supr., 2008)
12 Id
13 Id
14 State of Delaware v. Michael A. Holden v. Lauren N. Lusby, 60 A.3d 1110 (Del. Supr., 2013)
Defendant has also moved to suppress the blood test on the grounds that the phlebotomist
who administered the test, Ms. Stokes from Omega, did not follow the instructions of the
manufacturer of the DUI Blood test when drawing the Defendant’s blood. If this is the case, then
the blood test must be suppressed.!° The parties have not provided any evidence on this issue at
this point. The Court will defer ruling on this issue until the voir dire of the phlebotomist occurs
at trial. As to phlebotomist issue, the Motion to Suppress is DENIED without prejudice.
IT IS SO ORDERED this 21“ day of December 2020.
Francis J . Jones, Judge
/jb
Original to the Prothonotary
cc: Matthew Hicks, Deputy Attorney General
James M. Stiller, Jr., Esquire
18 Cookie A. Hunter v. State of Delaware, 55 A.3d 360,365-66 (Del. Supr., 2012).