Verde v. Simpler

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

EDGAR VERDE, Appellant Below, :
Appellant, : Case No. S20A-12-007 CAK
v. :
JANA SIMPLER, in her capacity as :
Director of the Division of Motor :
Vehicles, Appellee Below, :

Appellee. :

Submitted: June 14, 2021
Decided: June 25, 2021

Appeal from Court of Common Pleas Decision
Affirming Administrative Ruling of
Delaware Division of Motor Vehicles

AFFIRMED

MEMORANDUM OPINION AND ORDER

Michael Abram, Esquire, 120 S. Bedford Street, Georgetown, DE 19947, Attorney
for Appellant.

Ann C. Cordo, Esquire, Deputy Attorney General, 800 North French Street, 6th
Floor, Wilmington, DE 19801, Attorney for Appellee Jana Simpler, Director,
Division of Motor Vehicles, Delaware Department of Transportation.

KARSNITZ, J.
 PROCEDURAL HISTORY

On February 11, 2020, Appellant, Edgar A. Verde (“Appellant”) appeared

before a D e l a w a r e Division of Motor Vehicles ("DMV") Hearing Officer

in a hearing to determine the following: (1) with respect to 21 Del. C. § 2742,

whether there was probable cause to believe A p p e l l a n t was driving, operating

or had physical control of a vehicle while under the influence in violation of 21

Del. C. § 4177; and, (2) whether A p p e l l a n t refused to permit chemical testing

after being informed of the revocation penalty under 21 Del. C. § 2742. On

February 21, 2020, the D M V Hearing Officer, based on a preponderance of the

evidence, issued a Hearing Disposition (the “DMV Decision”) in favor of

Appellee, Jana Simpler, in her capacity as the Director of the DMV

(“Appellee”), finding that there was probable cause to believe A p p e l l a n t was

driving under the influence and that Appellant refused to permit chemical

t e s t i n g a fter being informed of the revocation penalty under 21 Del. C. § 2742.

The Hearing Officer revoked A p p e l l a n t ’ s d river's license for a period of 12

months pursuant to § 2742(b). The DMV issued a notice of revocation, dated

March 4, 2020, with an effective date of March 7, 2020.

On March 10,2020, Appellant appealed the DMV's decision to the Court

of Common Pleas pursuant to 21 Del. C. 2744 and Court of Common Pleas Civil

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Rule 72. Additionally, on March 10,2020, Appellant filed a Motion to Stay the

Suspension of his driver's license pending a decision by the Court of Common

Pleas, which A p p e l l e e did not oppose. On September 15, 2020, the Court

of Common Pleas issued a Decision on Appeal (the “CCP Opinion”) which

affirmed the DMV Decision and lifted the stay on the suspension of

Appellant’s driver’s license.

Appellant now appeals the CCP Opinion affirming the DMV Decision

to this Court pursuant to 10 Del. C. § 1326 and S u p e ri or C o u rt C i vi l R ul e

7 2 , asking me to reverse the DMV Decision that there was probable cause to

believe that Appellant (1) was driving while under the influence in violation of

21 Del. C. § 4177 and (2) refused to permit chemical t e s t i n g a fter being

informed of the revocation penalty under 21 Del. C. § 2742. Unfortunately for

Appellant, he focuses primarily on what evidence the DMV Hearing Officer did not

consider, rather than the significant evidence which the Hearing Officer did

consider. Based on that latter evidence, I affirm the Hearing Officer’s findings, as

affirmed below by the Court of Common Pleas.

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 FACTS1

On July 20, 2019, D e l a w a r e State Police Corporal Langdon

(“Langdon”) observed A p p e l l a n t driving a veh icle with both passenger tires

within the solid white fog line on the shoulder. Langdon subsequently observed

Appellant cross over the white fog line again with both passenger side tires.

Appellant returned to the travel lane before crossing over the double yellow

center line with both driver side tires and remaining over the center line for a

short distance. The vehicle then returned to the t r a v e l lane before veering over

the double yellow center line again. Appellant returned to the travel lane before

drifting across that lane and over the fog line again with both passenger tires.

Appellant drifted across the fog line four more times, including one time where

Appellant straddled the fog line for a short distance before correcting himself.

Appellant t h en failed to stop at an intersection with a four-way stop sign with

flashing red lights. Appellant slowed and turned on his right turn signal but

failed to come to a complete stop.

Langdon activated his emergency lights and conducted a traffic stop.

Langdon approached Appellant, the only occupant of the vehicle, and detected a

strong odor of alcohol emanating from Appellant and his vehicle. Langdon

observed Appellant exhibiting bloodshot and glassy eyes. Appellant admitted to

1
My findings of relevant facts are based upon evidence provided in the record of the DMV hearing.
4
consuming two beers at his friend's house. Appellant did not make eye contact

with Langdon. Langdon asked Appellant to perform a series of field sobriety

tests. Appellant exited the vehicle without any difficulty and had average speech.

Appellant refused to complete any tests at the scene and asked to have them

conducted back at the Troop. Appellant stated that the road was not level,

although Langdon observed no issue with the road. Langdon asked Appellant to

submit to a portable breathalyzer test and Appellant again refused. Langdon

transported Appellant back to the Troop and placed him in the breathalyzer room.

Langdon read Appellant the implied consent and read the contents of the form

into the record. Appellant refused to give the sample and gave no reason for his

refusal. Appellant signed the implied consent form that was entered into the

record. Appellant was t h e n arrested and charged with driving a motor vehicle

under the influence of alcohol in violation of 21 Del. C. § 4177 and failure to

stop at a stop sign in violation of 21 Del. C. § 4164.2

STANDARD OF REVIEW

The Delaware Supreme Court has long established that "the scope of

review of an appeal from an administrative decision of the Division of Motor

Vehicles is limited to correcting errors of law and determining whether

2
On October 1, 2019, Appellant entered a guilty plea in the Court of Common Pleas to the
charge of Failing to Stop at a Stop Sign. The Driving Under the Influence charge was
dismissed.
5
substantial evidence of record exists to support the findings of fact and

conclusions of law."3 Moreover, "findings of fact will not be overturned on

appeal as long as they are sufficiently supported by the record and are the product

of an orderly and logical deductive process." 4

If substantial evidence exists, [ t h e ] Court "may not re-weigh and
substitute its own judgement for that of the Division of Motor
Vehicles," because "the hearing officer is in the best position to
evaluate the credibility of the 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 products[s] of an orderly and deductive
process." However, "when the facts have been established, the
hearing officer's evaluation of their legal significance may be
scrutinized upon appeal."5

ANALYSIS
Substantial Evidence Exists to Support the Hearing Officer's Finding of
Probable Cause
Appellant appealed the decision of the DMV Hearing Officer on the

grounds that the Hearing Officer erred as a matter of law in her determination

that the arresting officer had probable cause to believe Appellant was in violation

of 21 Del. C. § 4177, driving while under the influence, and whether substantial

3
Eskridge v. Voshell, 593 A.2d 589, 1991 WL 78471 at *2 (Del. 1991) (citing Levitt v. Bouvier,
287 A.2d 671 (Del. 1972)).
4
Id.
5
Spencer v. Cohan, 2013 WL 5494718, at *2 (Del. Com. Pl. Oct. 2, 2013) (citations
omitted).

6
evidence supports the Hearing Officer's factual findings and conclusions of

law. Pursuant to 21 Del. C. § 2742(f), the DMV may only revoke the driver's

license of a person charged with driving a motor vehicle while under the

influence of alcohol if, in addition, to finding probable cause, the Hearing Officer

finds, by a preponderance of the evidence, that the person was in violation of

21 Del. C. § 4177.6

The following seven (7) facts were considered by the DMV Hearing Officer

in making her determination:

(1) Appellant crossed the solid white fog line seven times, at one point

traveling for a short distance before it was corrected, and he crossed the

solid yellow center line two times, at one point traveling for a short

distance before it was corrected. (Tr. at 4:4-24, 5:1-20) DMV Op. at ¶1;

Conclusion; Op. at 6);

(2) Appellant failed to come to a complete stop at a four way stop sign prior

to making a right turn. (Tr. at 6:1-4; Hr. Disp. at ¶ Conclusion; Op. at 6);

(3) Langdon testified that he “detected a strong odor of alcohol, alcoholic

beverages coming from [Appellant]” (Tr. at 6:12-14, Hr. Disp. at ¶ 3,

Conclusion; Op. at 6);

6
Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del.1989).

7
 (4) Appellant had “bloodshot and watery eyes” (Tr. at 6:15-16; DMV Op. at

¶ 3; Op. at 6);

(5) Appellant told Corporal Langdon that he had had “two beers at his friend’s

house.” (Tr. at 7:1-2; Hr. Disp. at ¶2; Op. at 6);

(6) Appellant looked down and would not make direct eye contact with

Corporal Langdon. (Tr. at 7:3-6; Hr. Disp. at ¶2; Op. at 6); and,

(7) Langdon is an experienced police officer. (Tr. at 3:13-17).

Appellant raises the following four (4) objections to the DMV Hearing

Officer’s determination:

(1) The Hearing Officer failed to explicitly state that erratic driving

was a factor in her ruling. Appellant admits the Hearing Officer does note

Langdon's testimony that Appellant crossed the while fog lines on the

passenger side and the double yellow center line on the driver's side in her

disposition. However, Appellant argues there is no analysis as to the degree

she relied on this testimony, as there was no accident and no drifting back

and forth between the two. In addition, this driving did not result in a traffic

stop.

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 (2) The Hearing Officer failed to note t h a t there were no

comprehension issues, balance issues while exiting the vehicle, or slurred

speech exhibited by Appellant.

(3) The Hearing Officer treated Appellant's request to conduct the

standard field sobriety tests away from the scene as an outright refusal to

complete them.

(4) The Hearing Officer did not take into account the answers given by

Langdon on cross-examination by Appellant.

The Hearing Officer explicitly noted Appellant's driving over the white fog

line and the double-yellow center line, as well as his straddling of both for a short

period of time, in her findings of fact. Clearly the Hearing Officer made a

determination that erratic driving occurred and was a part of the basis for her

probable cause ruling. While Langdon did not issue a traffic citation to Appellant

for this behavior, that is not required as part of a probable cause finding; rather I

look at the totality of the facts and circumstances. Langdon clearly observed erratic

driving that caused him to turn around and follow Appellant. Langdon conducted

a traffic stop for Appellant's failure to make a full stop at a four way stop

i n t e r s e c t i o n , giving Langdon reasonable suspicion to stop the vehicle.

According to the Hearing Officer's findings of fact, upon contact with

Appellant, Langdon smelled a strong odor of alcohol on Appellant's breath and

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observed that he had bloodshot, glassy eyes. Moreover, Appellant admitted to

just leaving a friend's home where he had consumed alcohol. Langdon also noted

that Appellant would not make eye contact with him and kept his head down. The

Hearing Officer noted that Appellant refused to perform any field sobriety tests at

the scene under her findings of fact, and later, under the section on Appellant’s

testimony, she addressed Appellant's request to conduct the field tests at the Troop.

There are numerous cases with facts similar to those in the instant case where

the courts have found a basis for probable cause. For example, where the defendant

committed a traffic violation, spoke in a rapid manner, smelled of alcohol, h a d

glassy bloodshot eyes and made an admission to drinking, the Court found probable

cause. 7 In Appellant's case, there is erratic driving ( nine times crossing the fog

and double yellow center line), a traffic violation (failure to stop at a four way stop

sign), the odor of alcohol, glassy bloodshot eyes, failure to make eye contact, and

an admission of drinking shortly before the stop. These facts distinguish this case

from State v. Mulholland8, on which Appellant heavily relies. In

Mulholland, there were only two incidents of erratic driving and an admission

t o drinking earlier in the day with a wait to drive home, compared to Appellant's

immediately leaving a friend's home where he consumed alcohol prior to driving.9

7
Bease v. State, 884 A.2d 495, 498 (Del. 2005)
8
2013 WL 3131642 (Del. Com. Pl. June 14, 2013).
9
Id., at *2.
10
The Hearing Officer checked the appropriate boxes on the disposition form

for these behaviors observed by Langdon.

This case is also distinguishable from State v. Sexton.10 In that case, while

many of the same facts were present, there was no evidence of a traffic violation.

Here there is undisputed testimony that Appellant weaved between the yellow and

white lines nine times and failed to stop completely at a four way stop sign.

Appellant emphasizes certain behaviors by Appellant that were not noted by

the Hearing Officer: no balance issues, no slurred speech, and no comprehension

issues. But by not checking the boxes for these behaviors, the Hearing Officer was

not ignoring those behaviors – she was simply stating that they were not observed.

Not all behaviors are required to be observed in order to establish probable

cause. In addition, Appellant provided no evidence there were any issues at the

place of the stop that would render it difficult for him to provide the field

sobriety tests. Langdon testified he saw no issues at the place of the stop and

therefore refused the request to conduct the tests back at the Troop. In any event,

field sobriety tests are not required to prove impairment:

In the context of DUI arrests, probable cause is generally based on the
arresting officer's observations of the arrestee, which may include field
sobriety tests.11

10
2020 WL 755172, at *4 (Del. Com. Pl. Feb. 14, 2020).
11
Rybicki v. State, 119 A.3d 663, 671 (Del. 2015); Stevens v. State, 129 A.3d 206, 210 (Del.
2015).
11
 Appellant further speculates that there could be other reasons for his erratic

driving, including cell phone usage and distraction. But “[a]n officer need not rule

out potentially innocent, alternative explanations for a driver's conduct."12

I find that the facts relied upon by the D M V Hearing Officer and the Court

of Common Pleas below support a finding of probable cause that Appellant was

driving under the influence in violation of 21 Del. C. § 4177.

Substantial Evidence Exists to Support the Hearing Officer's Finding that
Appellant Refused Chemical Testing after being informed of the
Revocation Penalty under 21 Del. C. § 2472
It is undisputed Appellant refused to complete a portable breathalyzer test at

the scene. Upon being transported back to t h e Troop, it is undisputed t h a t

Langdon read Appellant the implied consent form and Appellant refused to

complete the Intoxilyzer test. Appellant signed the implied consent form notifying

him of the potential consequences of failing to complete chemical testing.

Langdon entered a copy of the signed implied consent form into evidence, and it

is a part of the record. Appellant gave no reason for his refusal to complete

chemical testing. On these facts, I find that there is substantial evidence relied upon

by the D M V Hearing Officer and the Court of Common Pleas below to support a

finding that Appellant refused to permit chemical testing under 21 Del. C. §2472.

12
Rybicki, at 671.
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 CONCLUSION

I find that the DMV Hearing Officer's findings that (1) probable cause

existed to believe that Appellant was driving under the influence in violation of

21 Del. C. § 4177 and (2) Appellant refused to permit chemical testing as

required under 21 Del. C. § 2742 are sufficiently supported by the record and

are the product of a logical and deductive process. Both the DMV Decision

and the CCP Opinion below affirming that decision are AFFIRMED.

IT IS SO ORDERED.

/s/Craig A. Karsnitz

cc: Prothonotary

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