Opinion
C.A. No. CPU6-20-000430
09-15-2020
EDGAR A. VERDE, Defendant/Appellant v. JANA SIMPLER, Director, Plaintiff/Appellee
Michael R. Abram, Esq., Attorney for Defendant/Appellant Ann C. Cordo, Esq., Attorney for Plaintiff/Appellee
Michael R. Abram, Esq., Attorney for Defendant/Appellant
Ann C. Cordo, Esq., Attorney for Plaintiff/Appellee DECISION ON APPEAL
The Appellant, defendant-below, Edgar A. Verde ("Verde") filed an appeal from a decision of the Division of Motor Vehicles (hereinafter "DMV") Hearing Officer's Order revoking his license pursuant to 21 Del. C. § 2742. After a thorough and careful review of the hearing officer's decision and the record for this matter, the DMV's decision is AFFIRMED.
PROCEDURAL HISTORY
On February 11, 2020, Verde appeared before the DMV for a hearing to determine, (1) with respect to 21 Del. C. § 2742, whether there was probable cause to believe Verde was driving, operating or had physical control of a vehicle while under the influence in violation of 21 Del. C. § 4177; and (2) whether Verde refused to permit chemical testing after being informed of the revocation penalty under 21 Del. C. § 2742. On February 21, 2020, the Hearing Officer, based on a preponderance of the evidence, ruled in favor of the State, finding that there was probable cause to believe Verde was driving under the influence and that Verde refused to permit chemical testing after being informed of the revocation penalty under 21 Del. C. § 2742. The Hearing Officer revoked Verde's driver'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, Verde appealed the DMV's decision to this Court pursuant to Court of Common Pleas Civil Rule 72 and 21 Del. C. 2744. Additionally, on March 10, 2020, Verde filed a Motion to Stay the Suspension of his driver's license to which the DMV did not oppose.
FACTS
The Court's findings of relevant facts are based upon evidence provided in the record of the DMV hearing.
On July 20, 2019, Corporal Langdon, a sworn member of the Delaware State Police ("DSP") was on patrol on the Millsboro-Harbeson area, on State Route 5, in Sussex County. Cpl. Langdon observed Verde traveling northbound along Indian Mission Road with both passenger tires within the solid white fog line on the shoulder. Cpl. Langdon turned around and began to follow Verde. He observed Verde cross over the white fog line again with both passenger side tires. Verde 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 lane before veering over the double-yellow center-line again. Verde returned to the travel lane before again drifting across the lane and over the fog line with both passenger tires. Verde drifted across the fog lines four more times, including one time where Verde straddled the fog line for a short distance before correcting himself. Verde failed to stop at the intersection of State Route 5 and Forest Road at the four-way stop sign with flashing red lights. Verde slowed and turned on his right turn signal but failed to come to a complete stop.
Cpl. Langdon activated his emergency lights and conducted a traffic stop. Cpl. Langdon approached Verde, the only occupant of the vehicle, and detected a strong odor of alcohol emanating from Verde and his vehicle. Cpl. Langdon observed Verde exhibiting bloodshot and glassy eyes. Verde admitted to consuming two beers at his friend's house. Verde failed to make eye contact with Cpl. Langdon. Cpl. Langdon requested Verde perform a series of field sobriety tests. Verde exited the vehicle without any difficulty and had fair speech. Verde refused to complete any tests at the scene and asked to have them conducted back at Troop 7. Verde stated the road was not level. Cpl. Langdon observed no difficulty with the road or any issue with unevenness. Cpl. Langdon requested Verde submit to a portable breathalyzer test ("PBT") and Verde again refused. Cpl. Langdon transported Verde back to Troop 7 and placed him in the Intoxilyzer room. Cpl. Langdon read Verde the implied consent form at 1:28 a.m. and Cpl. Langdon read the contents of the form into the record. Verde refused to give the sample and gave no reason for his refusal. Verde signed the implied consent form that was entered into the record. Verde was 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. On October 1, 2019, Verde entered a guilty plea in this Court to the charge of Failing to Stop at a Stop Sign. The Driving Under the Influence charge was dismissed.
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 substantial evidence of record exists to support the findings of fact and conclusions of law." In Eskridge v. Voshell, the Delaware Supreme Court further established that "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." Id.
Eskridge v. Voshell, 593 A.2d 589, 1991 WL 78471 at *2 (Del. 1991) (citing Levitt v. Bouvier, 287 A.2d 671 (Del. 1972)).
If substantial evidence exists, this 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."Spencer v. Cohan, 2013 WL 5494718, at *2 (Del. Com. Pl. Oct. 2, 2013)
DISCUSSION
I. Substantial Evidence Exists to Support the Hearing Officer's Finding of Probable Cause
Verde 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 Verde to be in violation of 21 Del. C. § 4177, driving while under the influence and whether substantial 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.
Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del. 1989).
Verde raises several objections. First, he argues the Hearing Officer failed to explicitly state driving was a factor in her ruling. Verde admits the Hearing Officer does note Cpl. Langdon's testimony that Verde crossed the while fog lines on the passenger side and the double-yellow center-line on the driver's side in her disposition. However, Verde 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 rise to a traffic stop. Second, the Hearing Officer failed to note there were no comprehension issues, balance issues while exiting the vehicle, or slurred speech exhibited by Verde. Third, the Hearing Officer does not address Verde's request to conduct the standard field sobriety tests away from the scene, rather than a straight refusal to complete them as described in the disposition. Fourth, the Hearing Officer does not take into account the answers on cross-examination made by Cpl. Langdon by Verde.
Verde acknowledges the Hearing Officer's hearing disposition contains sections: issues covered during the scope of the hearing, findings of fact with numbered subsection including boxes to be checked and space for narrative, defense questions/testimony and conclusion with boxes to be checked and space for narrative. The Hearing Officer explicitly detailed Verde's driving over the white fog line and the double-yellow center-line numerous times as well as his straddling of both for a short period of time in great detail in her findings of fact. Clearly, the Hearing Officer made a determination the erratic driving occurred and concluded it is part of the basis for her ruling there was probable cause. While Cpl. Langdon did not issue a traffic citation to Verde for this behavior, that is not required as part of probable cause. As stated in the standard, it is the totality of the facts and circumstances. Cpl. Langdon clearly observed erratic driving that warranted him to turn around and follow Verde. Cpl. Langdon conducted a traffic stop for Verde's failure to make a full stop at a four-way stop giving Cpl. Langdon reasonable suspicion to stop the vehicle - a fact not disputed by Verde.
According to the Hearing Officer's findings of fact, upon contact with Verde, Corporal Langdon smelled a strong odor of alcohol on Verde's breath and observed that he had bloodshot, glassy eyes. Moreover, Verde admitted to just leaving a friend's home where he consumed alcohol. Corporal Langdon also noted that Verde would not make eye contact with him and kept his head down. The Hearing officer noted Verde refused to perform any field sobriety tests under her findings of facts and later under defendant's question/testimony she addresses Verde's request to conduct the field tests away from the scene. Verde cites to case law in support of his position that is strikingly similar to facts in the instant case and where the courts found probable cause existed.
In State v. Cruz, the Court held probable cause existed where there was a traffic violation combined with odor as well as other factors indicating a person is drinking. In Bease v. State, the Court found probable cause when the defendant committed a traffic violation, spoke in a rapid manner, smelled of alcohol, glassy bloodshot eyes and an admission of drinking. In Verde's case, there is the erratic driving totaling nine times crossing the fog and double-yellow center-line, a traffic violation, odor of alcohol, glassy bloodshot eyes, failure to make eye contact and an admission to drinking shortly before the stop. These facts are distinguishable from State v. Mulholland as there were only two incidents of weaving/erratic driving, compared to Verde's nine, and an admission of drinking earlier in the day with a wait to drive home, compared to Verde's immediately leaving a friend's home where he consumed alcohol prior to driving.
2016 Del. CP. LEXIS 34, * 8-9
884 A.2d 495, 498 (Del. 2005)
2013 WL 3131642, at *2 (Del. Com. Pl. June 14, 2013) --------
The Hearing Officer checked the appropriate boxes for those behaviors observed by Cpl. Langdon. Verde alleged the Hearing Officer failed to take into account there were no balance issues while he was exiting his vehicle, no slurred speech and no comprehension issues. The Hearing Officer did take those issues into consideration when she failed to check those boxes and provided the information under the defendant question/testimony section. Unlike Verde's assertion, not all behaviors are required to be observed in order to establish probable cause. In addition, Verde provided no evidence there was any issues with the ground area at the stop that would render it difficult for him to conduct the standard field sobriety tests. Cpl. Langdon testified he saw no issue with the area and therefore refused the request to conduct the tests back at Troop 7 as that is not preferred by his command. An officer is under no compulsion to perform the standard field sobriety tests at another location upon request unless they feel it is necessary. "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" but which are not necessary to prove impairment. Rybicki v. State, 119 A.3d 663, 671 (Del. 2015); Stevens v. State, 129 A.3d 206, 210 (Del. 2015). Verde asserts there could be other reasons for his erratic driving including cell phone use and distraction. "An officer need not rule out potentially innocent, alternative explanation for a driver's conduct." Rybicki, 119 A.3d at 671. "Determining whether a person is impaired under § 4177 is within the realm of common knowledge." Stevens, 129 A.3d at 2010 (citation omitted).
The Court finds that the facts relied upon by the hearing officer supported a finding of probable cause that Verde was driving under the influence in violation of 21 Del. C. § 4177.
II. Substantial Evidence Exists to Support the Hearing Officer's Finding that Verde Refused Chemical Testing after being informed of the Revocation Penalty under 21 Del. C. § 2472
It is undisputed Verde refused to complete a portable breathalyzer test ("PBT") at the scene. Upon being transported back to Troop 7, it is undisputed Cpl. Langdon read Verde the implied consent form and Verde refused to complete the Intoxilyzer test. Verde signed the implied consent form notifying him of the possible consequences for failing complete chemical testing. Cpl. Langdon entered a copy of the signed form into evidence and it is part of the record. Verde gave no reason for his refusal to complete chemical testing. The Court finds there was substantial evidence to support a finding that Verde refused to permit chemical testing under 21 Del. C. § 2472.
CONCLUSION
In conclusion, the DMV Hearing Officer's findings that (1) probable cause existed to believe that Verde was driving under the influence in violation of 21 Del. C. § 4177 and (2) Verde refused to permit chemical testing as required under 21 Del. C. § 2742 were sufficiently supported by the record and is the product of a logical and deductive process. The decision of the Order of the Department of Motor Vehicles is AFFIRMED and the stay on Appellant's driver's license suspension is lifted.
IT IS SO ORDERED this 15th day of September, 2020.
/s/_________
The Honorable Rae M. Mims