*1 (2) Adjustment parental of children to
separation;
(3) resolution and conflict man- Dispute
agement;
(4) visitation; Guidelines for
(5) children; in Stress reduction
(6) Cooperative parenting. litigant history
A who has a demonstrable
of domestic violence shall be ordered to
participate separate and more inten- include, which at a mini-
sive course shall
mum, topics required paragraphs
(h)(1) (6) through of this section and edu- violence, regarding pre-
cation domestic its
vention and effect upon its children.
Parties do not have to attend the same
course. LEFEBVRE,
Jennifer L. Defendant
Below, Appellant, Delaware,
STATE of Plaintiff
Below, Appellee. 623,
No. 2009.
Supreme of Delaware. 23,
Submitted: Feb. 2011. April
Decided: 2011.
Reargument May Denied *2 appellate her
preserve rights, Lefebvre trial, a stipulated consented to trial. At parties agreed to admit the evidence *3 produced during suppression hearing and that Lefebvre operating motor County vehicle in Sussex on the date and Mooney, Esquire (argued) Eric G. and time in the alleged indictment. Lefebvre’s Nutter, & Nut- Esquire, Mooney James D. result BAC test was also admitted as a P.A., Delaware, ter, Georgetown, ap- for State’s exhibit. pellant. evidence, stipulated Based on the Wallace, (argued) R. and Esquire Paul trial judge guilty found Lefebvre of the Esquire, Deputy Attorneys P. Lugg, Sean charge Driving Under the Influence of General, Delaware, appel- Wilmington, 21, in Alcohol violation of title section 4177 lee. of the Delaware judge Code. The trial immediately sentenced Lefebvre serve STEELE, Justice, Before Chief years 5, two of incarceration at Level to be HOLLAND, BERGER, JACOBS and suspended after Lefebvre served the nine- RIDGELY, Justices, constituting the ty-day mandatory jail required term for a Court en Banc. third offense. jail sentence was by eighteen followed months of Level 3 HOLLAND, Justice, majority: for the probation. The Le- defendant-appellant, Jennifer (“Lefebvre”), appeals Supe-
febvre from a by The sole issue raised in judgment rior Court of conviction for appeal Superior is that the Court errone- Driving the Influence of Alcohol.1 Under her ously suppress. denied motion to We Lefebvre’s conviction arises from an arrest argument have concluded that is without by Therefore, made Delawarе State Police officers on judgment merit. of the 12, February pre- 2009.2 Lefebvre filed a Superior Court must be affirmed.
trial motion to an suppress the results of Facts4
intoxilyzer test administered to determine (“BAC”). her breath alcohol concentration presented testimony The State at the support In of her to suppress, motion Le- hearing on the motion suppress from alia, argued, febvre inter that there was officers, the two Delaware State Police no cause to arrest her for a DUI Short”) Sergeant (“Sergeant Darren Short offense.3 Brian Page (“Trooper Page”), The Superior participated Court denied the motion to both who in Lefebvre’s arrest. suppress in a ruling. Sergeant bench order to Short testified that he had been 21, 4177(d)(3). argued § Ann. stopped by Del.Code tit. 3. Lefebvre also she was an off-duty police authority officer who lacked arrest, which, make the a contention based on 2. Lefebvre was cited at the time with same presented suppression the evidence at the (following title violations of section 4123 hearing, being is not advanced her in this closely) motor vehicle too and title section appeal. (failure to have insurance identification possession). pro- State entered nolle opinion 4. The recitation of facts in this sequi charges these as to are not at primarily opening taken from the brief that present appeal. issue in the appeal. Lefebvre filed in this signaling, 1 without northbound Route Police for sixteen by the State employed of a currently charge parking turned into the lot restaurant. and is years Force stationed County Drug Task Kent blocked-in the Mitsubishi Sergeant Short Cаmden, Ser- Delaware. 3 in Troop out of activated his vehicle’s using his vehicle and training in en- received DUI geant emergency equipment. police academy in the whilst forcement approached then Sergeant Short detection and field so- in DUI is certified Lefebvre, Mitsubishi, driver of the Sergeant Short estimated briety testing. identified himself. Short testi- arrests. more than 300 DUI he has made *4 strong of an fied that he noticed a odor 12, 2009, Sergeant Short February On beverage and that Lefebvre’s alcoholic investiga- of a federal working part as appeared Lefebvre speech was slurred. County. approximately At tion Sussex why and she had visibly flustered asked an operating Short was p.m., Sergeant 4:41 her li- stopped. produced been that was police SUV5 “unconventional” as al- registration requеsted, cense and light on Route south- stopped at a red reportedly she had to be asked for though Home area of Sea Air Mobile bound in the Sergeant than one time. her license more Beach. In the lane Park near Rehoboth eyes could not observe Lefebvre’s Short Short, a black Mitsubishi Sergeant next to wearing sunglasses. because she was Sergeant Short stopped. Lancer was from the Mitsubishi and ob- yelling heard Lefebvre, speaking Sergeant After with shouting bounc- occupants served police Short returned to his car and re- Sergeant inside. Short stated
ing around patrol respond that a unit to con- quested video. “girls gone like a wild” it looked Trooper Page duct field green, turned the Mitsu- light When the police was in his car when he heard the light “came accelerated frоm the bishi dispatch request patrol respond unit to Ac- up directly grey behind” a small car. Sergeant Short’s location to conduct Short, the of cording Sergeant driver Trooper responded and field tests. following grey car the Mitsubishi was Short, Sergeant met with who briefed close, between the too with a foot Trooper Page about his observations and vehicles, grey such that the car could that Lefebvre was under the influ- belief being hit from behind. slow down without Sergeant Trooper ence. Short advised tell if the Mitsu- Sergeant Short could not yet Page that he had not conducted According to Ser- speeding. bishi was field tests. Short, Mitsubishi did not swerve geant tailgated lane. The Mitsubishi within its Page had been a Delaware Trooper approximately one-half grey car for years. State Police officer fоr two Before grey abrupt car then made an mile. Police, joining Trooper Page the State apparently “get away from” change lane years. in the Air Force for thirteen served the Mitsubishi. Trooper training in Page received DUI academy in the enforcement actions, Sergeant observing
After these was certified in DUI detection and field stop to conduct a traffic decided sobriety testing. February Before Sergeant Short followed the Mitsubishi. he Trooper Page it a left turn across estimated had the Mitsubishi as made Sergeant ognized police car members of the Short’s vehicle as a 5. Lefebvre described general public. as a 2002 Chevrolet Avalanche with tinted commonly be rec- windows which would not approximately twenty Trooper Page made arrests then had Lеfebvre exit testing. Trooper her car for additional offenses. DUI Page testified that he is trained to observe Short, speaking After with suspects DUI exit their car for Page approached the Mitsubishi Trooper signs impairment, staggering such as spoke Trooper Page to Lefebvre. tes- using Trooper Page the car for balance. strong tified that he noticed a odor of an characterized Lefebvre’s exit as normal. face beverage alcoholic car, Once Lefebvre was outside of her was flushed. His entire interaction with Trooper Page administered the horizontal patrol Lefebvre was on his vehi- recorded (“HGN”). gaze nystagmus test camera, cle’s dashboard the video of which Page general principles testified about the played was admitted into evidence and at underlying training his to admin- suppression hearing. ister the test and the six clues for which he checks. Although Trooper Page testified Trooper Page asked Lefebvre when she clues, that Lefebvre exhibited all six *5 a responded last had drink. She an “hour Trooper did not conduct the test in accor- ago.” beverages and a half No alcoholic Highway dance with National Traffic Safe- were visible her vehicle. Lefebvre (“NHTSA”) ty Administration protocol. why asked several times she had been Therefore, Superior the Court found that Trooper Page characterized Le- stopped. the results compromised and did not being febvre argumentative, but not consider in determining them whether Although confused. the video reflects that probable cause existed. understandable, speech was test, After the HGN Trooper Page had Trooper Page testified that Lefebvre’s perform Lefebvre a finger dexterity test. speech questioned was slurred. When Trooper Page instructed Lefebvre to touch discrepancy, Trooper Page about this did tip tip her thumb with the of each agree accurately that the video depict- one, two, three, four, finger, counting, speech. ed Lefebvre’s four, three, two, going counting, then back Although Trooper Page believed Le- requires one. This test subject per- impaired febvre was before he conducted form (counting a total of sixteen actions tests, eight touching fingers aloud times and he nonetheless asked Le- times). eight Lefebvre was instructed to perform febvre to do this Trooper test twice with each hand. testifiеd, which Trooper Page designed are Page acknowledged that Lefebvre did well to person “show that is under the influ- [a] on the test. ence by having perform of alcohol them
multiple Trooper Page tasks.” first ad- Trooper Page next administered tests, pre-exit ministered two alphabet walk-and-turn test. Lefebvre was in- tests, counting while Lefebvre re- right structed to stand with her foot in performed mained seated her car. She front of her left. The video shows that correctly.6 both tests position Lefebvre held this without issue test, respect alphabet Trooper giving 6. With multiple to the them tasks to think about. Page alpha- performed correctly. instructed Lefebvre to recite the Lefebvre this beginning ending Trooper Page bet with the letter E and then instructed Lefebvre to purpose having beginning with the letter P. The count backwards with the number person ending start and end with a letter in the with the number 87. Lefebvre alphabet performed middle of the is to make the test second divided attention test by dividing person’s correctly. harder attention responded Page though.” Trooper minute while nearly a for drunk, I I could tell when “she’s saying: was instruct- Lefebvre test. explained Page then re- Trooper up there.” heel-to-toe, got steps forward nine ed to walk her under placed Lefebvre and turned to steps nine back and take pivot and then arrest DUI. Page concluded Trooper heel-to-toe. this test.
Lefebvre
Test
Before Chemical
Probable Cause
then administered
Page
Trooper
a motor
operates
person
A
who
was instruct-
test. Lefebvre
one-leg stand
roadway is deemed
on а Delaware
vehicle
side,
at her
her hands
stand with
ed to
consent to chemi
given
“to have
by statute
ground
off the
foot six inches
either
raise
of the breath to
including a test
cal
1,000 (1001,
thirty by
to
and then count
of alcohol or
presence
determine
etc.)
1003,
stop.
to
Before
until told
testing constitutes
Since that
drugs.”7
to
commented
Lefebvre
search,8
require
protections
constitutional
at this so-
good
“I’m not that
have
officer to
Lefebvre’s test
videotape of
The
ber.”
driving while under
person
believe
thirty
than
seconds
that more
shows
drugs
before
the influence of alcohol
sway.
began
Lefebvre
elapsed
chemical
person submit to
requiring the
fact
found as
Superior Court
the influence” is
“While under
testing.9
begin to lose balance
did not
4177(c)(5)
in title
section
defined
thirty
elapsed.
secоnds had
after
until
is, because of alco
mean that “the
*6
Thus,
this test.
passed
both, less
combination of
drugs
hol or
or a
have
ordinarily
a
would
Page
administered
able than the
Finally, Trooper
(“PBT”)
been,
to ex
mentally
physically,
to Lefebvre.
either
portable breath
judgment,
physical
sufficient
Le-
ercise clear
Page considered
Although Trooper
control,
driving
in the
of a
or due care
this
to have failed
febvre
vehicle.”10
protocol
proper
did not follow
if
and did not know
administering the test
proba
This
has described
been calibrated.
machine had ever
...
concept which
cause as “an elusive
ble
Superior Court held
Consequently,
suspicion and suf
lies somewhere between
compromised
the PBT results
Probable
ficient evidence to convict.”11
in deter-
consider the results
and did not
offense exists
cause to arrest for a DUI
cause had been
probable
whether
mining
“information
possesses
an officer
when
established.
man in
would warrant a reasonable
which
a crime
been
testing, Trooper
believing
ha[s]
finishing
[such]
the field
After
12
standard, po
meet this
back to her
committed.”
To
Lefebvre to walk
Page allowed
suggest,
which
“present
lice must
facts
car. He then went over
are viewed under
Short,
when those facts
him
failed PBT results
showed
circumstances, that there is
totality of
her
“she did well on
and said
21,
4177(c)(5).
495,
State,
(Del.
§
10. Del.Code Ann. tit.
497-98
7. Bease v.
884 A.2d
21,
2005)
(citing
tit.
Del.Code Ann.
2740(a)).
§
926,
(Del.
929
v.
624 A.2d
11. State
1993).
757, 767,
California,
384 U.S.
8. Schmerber
(1966).
L.Ed.2d 908
86 S.Ct.
Voshell, 562 A.2d
Clendaniel v.
omitted).
1989) (citation
State,
(Del.
Whether
gener
arrest a driver for a DUI offense is
supporting probable
evidence
ally
arresting
decided
officer’s ob
present appeal,
in the
light
most
servations,
frequently
State,
which
include the
favorable to the
can be summa-
quality
performance
of the driver’s
on field
rized
follows: Lefebvre committed a
offense,
Although
precise
no
traffic
strong
for
exhibited a
odor of
exists,
alcohol,
mula
the boundaries of what consti
had
flushed face and blood-
shot,
glassy eyes, admitted drinking
tutes
cause for a DUI offense
an
have
hour and a half before the
variety
stop,
been defined and refined
somewhat
argumentative
flustered and
example,
factual contexts. For
a traffic
officer,
with
alcohol,
prior
and stated
violation combined with an odor of
to the
“I’m
alone,
one-leg
good
stand
not that
at this
standing
do not constitute
sober.”
Were
evidence in
causе to arrest
the driver for a
off
DUI
case,
or if Lefebvre had refused to
ense.16 Conversely, as this Court held in
perform field
Bease,
defendant
violation,
concedes
of a
evidence
traffic
odor
*7
that probable cause would have existed.
alcohol, rapid speech,
admission to
more,
anything
present
Without
the
case
drinking,
glassy eyes
bloodshot and
and a
would be almost identical to Bease.
alphabet
failed
test constituted
cause to arrest
the
driver
a DUI off
agree
acknowledgment
We
with Lefebvre’s
ense.17
that,
in accordance with our holding in
Bease, there
was
cause to arrest
State,
In Perrera v.
the driver passed
her
prior
for a DUI offense
to the admin-
tests, finger-to-nose
two field
and one-leg
any
sobriety
istration of
field
tests.
stand, but had committed a trаffic viola-
tion,
alcohol,
Nevertheless,
smelled of
had bloodshot
argues
Lefebvre
that
glassy eyes,
the alphabet
by
failed
and count-
the observations made
Sergeant Short
ing
failed two PBT
Trooper Page
tests and failed and
by
statements
the HGN test.18
We held
Perrera that Lefebvre
be
together
must
considered
State,
(Del.
13. State v.
16. WL Esham v. 8277 Id. 2, 1987). per.Ct. Mar. State,
17. Bease v.
A.2d
at 499-500.
by
studies
principles
tifie
and validation
“overwhelming evidence of non-
the
with
gener
developed.
subsequently
was
which
tests
that
impairment”
field tests.
on the
by
performance
her
ated
argues
having passed
that her
Lefebvre
her
*8
tests,
ety
pertain
insofar as those results
only
probable
relevant
in a
tests are
legal
“totality
to the
of the circumstances”
person
when a
fails them.
anаlysis
cause
determining probable cause
not
standard for
interpretation
Such an
of the tests is
a
by Delaware law or the scien-
to arrest for DUI offense.
supported
argument
on the walk-
ertheless, may give those two facts rise to Response to the Dissent suspicion justify a reasonable of DUI and Lefebvre concedes that there was proba- request perform the driver some ble cause to arrest her for any DUI before sobriety perform field tests. driver’s field test was administered. The may on those give ance tests rise facts dissent asserts that by “‘concession’ Le- that either elevate what was a suspi fact, febvre is not a and that it should have cause, probable dispel cion into bearing probable no on the cause determi- in suspicion and result no DUI arrest. nation.” To the extent that Lefebvre’s distinguish Lefebvre’s case is is simply acknowledgement concession an able because she that there was concedes that is “in holding accordance with our in merely suspicion not Bease,” field agree. we The record facts in this began, but actual cause to cause, case support finding arrest her for a offense. There are DUI prior any to the administration field many factual scenarios where test, that holding is controlled our in cause to arrest for a DUI offense is so Bease and without any regard to Le- per clear that the driver is not asked to febvre’s unsurprising concession. The dis- (as But, any form field even where sent does take issue with either the here) police officer has cause to record or the holding facts Bease. arrest before testing, the officer The dissent asserts that after Lefebvre precluded developing is not from addition properly administered field so- al through testing. evidence When briety Trooper Page appealed to pre-existed, and the field Sergeant guidance Short for and “without performance tests and the results are ei elaboration, much replied she’s mixed, ther favorable to the driver or ...,” drunk implying should ar- is available for a evidence reasonable rest Lefebvre. Short’s state- trial, argument doubt to the trier of fact at ments must be considered the context of *9 requested a BAC test is and if refused. the fact that Lefebvre a portable failed (PBT).
Field tests results that are ei breath test The dissent asserts mixed, ther favorable to the driver or the portable do that failed breath test results not, however, negate upon cause to should not be relied because it was arrest that existed the field from improp- before tests excluded evidence due to its words, began. performance rely upon In other er administration. We do not it Voshell, Esham WL 1987 8277 at *2. Similarly, the to be 68% accurate.26 results found of the excluded truth now for the itself, test, re- to rather, by Short’s was found but, put one-leg stand words, context which is complete each into In other marks be 65% accurate.27 of facts in the statement accurately related that margin of error of those tests had appeal. brief opening in Lefebvre’s or 35%. was either 32% testing, Page finishing the field After majority’s between the The difference her to walk back to allowed cause proposed probablе the dissent’s Short, walked over vehicle. He then by the analysis clearly is most illustrated PBT and said him the [failed] showed that majority case. The holds facts of this though.” on her “she did well to arrest Le- there was cause by saying: “she’s responded before the field febvre for a DUI offense drunk, got up I there.” could tell when I pre- that tests were conducted and over to Lefebvre and then walked extin- cause was not existing probable arrest for DUI. placed her under by completion her successful guished majority The between difference (as majority those tests. Therefore what the dissent describes the dissent on holds), correctly adminis- the results of question of turns on the “segmenting” intoxilyzer properly admit- tered either sobriety tests that are whether prove that Lefebvre’s ted into evidence mixed, negate to the drivеr favorable .185.28 alcohol concentration was blood that existed cause to arrest Le- following concludes that majority The The dissent began. the field tests they do not and dissent performance holds that on the febvre’s successful support can. of its argues tests, cause to there was no notes that Lefebvre position, the dissent offense. We arrest Lefebvre for DUI “successfully passed the walk-and-turn agree. cannot This case demonstrates— wearing high- while one-leg stand tests findings— with NHTSA’s own consistent that successful heels.” The dissent asserts may pass that an individual field tests sobriety tests is of performance on field the influence of alcohol. Le- still be under evidentiary weight that it can great such blood alcohol concentration was febvre’s preceded defeat legal greаter more than two times than the of those tests. That the administration (.08). probable cause exists limit Where supported by NHTSA’s assertion is not of field tests which a independently NHTSA research has own materials. may pass, proba- under the influence many impaired suspects demonstrated that by the suc- extinguished ble cause is performing balance while can maintain performance cessful of the tests. a few one-leg for 20-25 seconds and stand it takes to can do so for the full 30 seconds Conclusion part of NHTSA’s complete the test.25 As judgment Superior the standardized field validation studies of itself, affirmed. the walk-and-turn Safety § VIII at A.5. Highway Adminis- 27. Session 25. National Traffic tration, DWI and. Field Detection Standardized Manual, Sobriety Testing, Instructor’s Session intoxilyzer properly adminis- 28. The test was VII, § WL at E.7. separate apart statiоn tered at *10 portable improperly administered from the at that was conducted the scene. § breath test 26. Session VIII at A.5. BERGER, STEELE, Justice, probable person and cause to believe the Chief “was Justice, while dissenting: driving under the influence” as de- fined above. prob- that there was majority
The
holds
“totality
believe that Lefebvre was
The
able cause to
circumstances”
by
majority acknowledges,
the influence. It does so
as the
is the
driving
prop-
under
concession,
probable
and
er test to decide whether
cause
relying on
said,
dividing
“totality
ap-
the
of the circumstances”
That
the test must be
exists.31
plied
the
is
in a manner that
all
parts.
test
into
But
“concession”
considers
the
fact,
bearing
fairly
it
have no
on information
and then
and should
available
as-
agree
the
cause determination. More-
sesses that information. We
with
over, by compartmentalizing
majority
approach,
the
the
on the fundamental
analysis,
majority
disagree
majority’s
cause
uses a test
but we
with the
novel
properly
application
that does not
consider the “totali-
of the test. The majority nev-
ty
disagree
er
all
of the circumstances.” We
considers
the admissible evidence in
issues,
Instead,
majority’s analysis
of
it segments probable
with
these
toto.
cause
respectfully
temporal compartments
and we
dissent.
into
based on the
series of events that
culminated
Le-
The
have a principled
Court must
basis
febvre’s arrest.
segment-
We believe this
whether,
majority
determining
notable,
unwarranted,
approach
ed
is a
it,
puts
presumably
an
the officer
officer—
departure from our precedent.32
who
the breath test
offers
to
defen-
which
“possesses
majority suggests
information
would
passed
that
dant —
warrant a
man in believing
reasonable
tests can be ignored under the
if,
“totality”
testing,
crime has been committed.”29
police
[such]
information,
course,
That
designed
might
have had sufficient alternative evi-
determine whether a
is “less
person
able dence to constitute
cause.
so,
than
ordinarily
doing
majority
would
have
discounts the fact
been,
mentally
physically,
experts specifically
either
to ex-
designed the field
judgment,
physical
provide objective
ercise clear
sufficient
tests to
evidence of one’s
control,
driving
ability
or due care
of a
which is
reliable
multitask,33
out,
majority points
As the
no indicator of impairment, or lack thereof.
vehicle.”30
one can
requirеd
majority
be
to submit to chemical But the
sugges-
would balk at the
testing
police
breath
unless a
officer has
tion that those same field tests should be
Voshell,
1167,
determination,
(1)
including
29. Clendaniel v.
562 A.2d
Bease’s
(Del. 1989).
(2)
alcohol, (3)
speech,
manner of
smell of
(4)
consumption,
admission of
bloodshot
4177(c)(5).
(4)
glassy eyes, along
§
30. 21
with
Del. C.
his commis-
offense,
(5)
sion of a traffic
his failure of
alphabet
Gates,
213, 230-31,
test—the
NHTSA test the
31. See Illinois v.
462 U.S.
police
2317,
properly);
(1983);
administered
Perrera v.
103 S.Ct.
First,
while both officers testified
alcohol,”
readily apparent becomes clear when the
the “odor of
Delaware
smelled
Short,
perplexed Page appealed to
who
driving
law does not forbid
with an “odor
Besides,
originally ordered him to conduct the de-
one’s
of alcohol” on
breath.
those
multitasking
guid-
experts’
familiar with
views know that eth-
finitive
actually
ance
the defendant
anol itself is odorless and that
nature
because
37.Indeed,
mаjority explains,
34.
299
impairment
passed
no
when she
favorable to the
any stage
showed
State at
Instead,
tests. Without
expertly designed
probable
finding.
cause fact
for
elaboration,
replied,
much
“she’s
exist,
probable cause to
as the majority
...,”
implied
Page
drunk
that
should quotes
precedent, police
our
“present
must
arrest Lefebvre.38 Short ordered the tests
which suggest,
facts
when those facts are
did
expecting Lefebvre to fail. When she
totality
viewed under the
of the circum-
not,
disregarded
he
them.
stances, that there is a fair probability that
the defendant
committed a
of-
DUI
Although
judge
majori-
the trial
and the
39
fense.”
ty give
hypothetically
no credence to
inno-
music,
explanations
bouncing
cent
for
to
support,
Without record
the majority as-
momentarily tailgating,
failing
to use a
serts that
many
“there are
factual scenar-
signal, they
unexpect-
turn
brush aside the
ios
where
cause to arrest
for
passing
ed
of an entire series of multitask-
DUI offense is so clear that the driver is
ing
specially designed
objec-
field tests
to
perform any
not asked to
field tests.”
tively
impairment
as if
reflect
Clearly, this case is not one of them.40
consequence.
of no
If one
all
accounts for
Nevertheless,
majority publishes
hypothetically innocent
appropriate
expla-
holding that will
proposition
stand for the
nations,
only
and considers
the admissible
tests, designed
given
evidence,
view,
then in our
there was little
prove impairment,
passed,
when
are irrele-
basis to believe Lefebvre drove while im-
vant to probable cause determinations as
paired
being given
before
the chemical
long
police already
as the
have other evi-
and,
breath
practically,
prob-
more
no
which,
isolation,
dence
when
in
considered
ability that Short himself believed so when
may
constitute
cause. On the
give
he ordered
the field tests.
hand,
other
presumably may
State
majority
bolsters its conclusion
continue to use unfavorable field test re-
relying on the
assertion
Lefebvre’s brief
in building
sults
its case
cause existed
the ad-
“heads-I-win,
cause. We find this
tails-
But,
fact,
ministration of field tests.
you-lose” framework inappropriate under
premised
she
expressly
“concession”
existing law.
viewing
on
all
up
point
the evidence
to that
“in
light
any precedent
support
most favorable to the State.” We cannot find
argument
majority’s
Neither the oral
nor the record
segmented approach to the
suggests
requires
“totality
law that
the evi-
of the circumstances”
light
dence to be considered in the
most
majority
cites
In nearly
none.41
all of
majority
evidence,
explains
38. The
part
this interaction be-
with all other available
of its
"totality
by saying
analysis.
tween the
of the
two officers
that Lefebvre
circumstances”
Con-
trolling precedent very clearly
failed the breath test. But a court cannot
considers
part
"tоtality
failed field test as
of its
consider inadmissible evidence. The breath
analysis,
supra
circumstances”
see
note
improperly.
test was administered
a re-
As
sult,
similarly.
we should consider
field test
meaningless.
the test results are
Maxwell,
supra
41. See
note
4. See also
able cause. majority’s approach new
We believe the message po- to the
sends an unmistakable to achieve
lice order balance,
cause, not consider a they need cause, suggestion police determining is no that the administered "a series of field which included tests, at all. performed which Clendaniel [all of] poorly.”). Perrera, 2004 WL at *1. exception supra 42. See note 12. sole appears and in that case there to be notes Lefebvre Specifically, sobriety field every administered properly she and that was understandable speech (other PBT, which than the HGN and test, the count alphabet passed passed were not Superior Court determined issue, her car without exited ing administered) constitutes “over- properly test, passed finger-dexterity passed that she was not im- whelming evidence” the one- passed test and the walk-and-turn by urges alcohol. Lefebvre paired emphasizеs leg stand test.' “success” on the to hold that her where the field tests a case this is not the facts that sobriety negated field tests she “mixed” because results were proba- otherwise established she concedes by administered properly field test every to arrest her for DUI ble cause before determine whether she Page to To hold field tests were administered. impaired. otherwise, argues, ignore she would characterized Le- Superior Court “totality of the circumstances” element of performance on febvre’s successful standard, and render “inno- sobriety hypothetically tests as sobriety proba- relevant in a testing acknowl- cent The State explanations.”21 fails analysis only ble cause when one-leg edges that the walk-and-turn the tests.23 sobriety tests which have stand are field rеiterate, Lefebvre concedes that To through been standardized validated circumstances, based on the facts and by sponsored research studies extensive cause to arrest Trooper Page had employ concept NHTSA.22 Both offense the field tests her for DUI argues of divided attention. Lefebvre Lefebvre, however, began. According to passing two NHTSA certified field tests established, cause, may once be explanation” “innocent but was not an negated “overwhelming evidence proof non-impairment. of her summar- non-impairment produced through” Lefebvre states: non- izing argument, her failing performance on standardized field successfully performing If two NHTSA argument mis- nothing certified field tests constitutes evidentiary weight of non- construes hypothetically more than “innocent ex- on field sobri- failing results standardized then in the NHTSA planations”, effect