State of Delaware v. Grace DavisState of Delaware v. Grace Davis
Joseph Lafferety, Esq. Deputy Attorney General.
John S. Malik, Esq. Defense Counsel—Grace Davis.
Manning, J.
On Aрril 5, 2025, Grace Davis (Davis), was arrested for the offense of Driving Under the Influence (“DUI“) and other traffic violations.1 Davis has filed a Motoin to Suppress, pursuant to Court of Common Pleas Criminal Rules 12(b) and 41(f). Davis moves this Court to exclude Intoxylizer evidence obtained from her person, arguing that there was no reasonable suspicion to conduct a DUI investigation, there was no probable cause to arrest her, and ultimately, the Intoxylizer was administered improperly, invalidating its result.
On October 29, 2025, a hearing on the Motion was held. Following testimony from the arresting officer and a review of relevant Body Worn Camera (“BWC“) videos, I ruled on the record that there was reasonable suspicion for officers to conduct a DUI investigation, and that the Intoxylizer test, despite some difficulty, was properly administered and valid. I reserved decision as to whether there was probable cause to arrest to arrest Davis. At the conclusion of the hearing, the parties were given the opportunity to submit supplemental briefing on the issue.
Just after midnight on April 5, 2025, Delaware State Police (“DSP“) officers responded to a fatal hit-and-run accident on Augustine Cut Off, between Cantera Road and Alapocas Drive, in North Wilmington, Delaware. To preserve the crime scene and prevent traffic from interfering with its investigation, DSP positioned one of its marked vehicles diagonally, across both lanes of travel, with its emergency lights activated. However, the vehicle was oriented such that it only blocked the north-bound and south-bound lanes; it did not block either shoulder, and no DSP officers were positioned near the parked vehicle to direct approaching traffic away from the crime scene.
At approximately 12:43 A.M., Davis, who was operating a Kia sedan and traveling north bound on Augustine Cut Off towards Cantera Road, reached the DSP vehicle. According to all accounts and DSP BWC video, Davis—followed by two other vehicles unrelated to this case—slowly proceeded past the DSP vehicle on the shoulder of the north bound lane. Davis traveled approximately 50-75 feet past the DSP vehicle beforе she was intercepted by DSP Sgt. Scarmazza and DSP Cpl. Link. Sgt. Scarmazza ordered Davis to stop and directed the two vehicles behind Davis, which were also traveling on the shoulder, to turn around, while Cpl. Link began interacting with Davis, who had rolled her window down to speak with the officers.
Cpl. Link asked Davis where she was coming from, and Davis responded that she had been at Trоlley Tap House. Cpl. Link inquired about whether Davis had any drinks, and Davis stated that she had one drink, about an hour and a half to two hours prior. Cpl. Link then told Davis that he could smell the alcohol, and that he wanted to conduct several tests to ensure that Davis would be able to complete her drive home. Davis agreed to participate in the field testing.
Cpl. Link conducted the National Highway Traffic Safety Administration (NHTSA)2 Standardized Field Sobriety Tests (“SFSTs“) on Davis. First, he administered the Horizontal Gaze Nystagmus (“HGN“) test, during which he observed Davis to exhibit two of six possible clues. Next, Davis performed the Walk and Turn test, where Cpl. Link stated he observed Davis to exhibit, what he considered to be two of eight possible clues; and in addition to the clues observed,
Just after 2:00 A.M. that same morning, Cpl. Link administered the Intoxylizer 9000 test on Davis, which, after one failed attempt, indicated a blood alcohol concentration over 0.08%.
PARTIES’ CONTENTIONS
The State argues that under the totality of the circumstances, the facts obtained through Cpl. Link‘s investigation were sufficient to conclude that there was probable cause to arrest Davis for DUI. These facts included: Cpl. Link‘s observations that Davis drove past a marked DSP vehicle blocking the road, an admission to having consumed an alcoholiс beverage about an hour earlier, that Davis smelled of alcohol, had glassy and bloodshot eyes, and her performance on the field sobriety tests.
Davis argues that when considering the totality of the circumstances, no probable cause existed to arrest her and administer the Intoxylizer test because she “passed” two out of three of the field tests, spoke clearly, did not exhibit bloodshot
LEGAL STANDARD
To defeat a motion to suppress for a warrantless DUI arrest, “the State must establish, by a preponderance of the evidence, that a defendant‘s arrest was supported by probable cause.”3 To meet its burden and satisfy the probable cause standard for a DUI arrest, the State must present facts which suggest, when “viewed under the totality of the circumstances, there is a fair probability that the defendant committed a DUI offense.”4 “This totality consideration is based on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,‘” 5 and the Court must review and analyze the facts of each case based “upon what thе arresting officer knew at the time the decision was made to take the defendant into custody.”6
DISCUSSION
As noted above, I already ruled on the record that there was sufficient reasonable suspicion to detain Davis and ask her to perform field sobriety tests. I also ruled that the Intoxylizer test performed on Davis was properly administered;
A. Standardized Field Sobriety Tests
NHTSA‘s SFSTs are the proverbial “gold standard” and provide police officers with objective and scientifically validated criteria to utilize when evaluating a driver suspected of DUI. NHTSA claims that when the field tests are “administered in the prescribed and standаrdized manner,” the combination of the three tests boast accuracy ratings of between 86-95%7 in determining whether a driver‘s blood alcohol concentration is above 0.08% (“the legal limit“).8 However, this validation of the field tests applies only when “[t]he tests are administered in the prescribed, standardized manner . . . [i]f any one of the [SFSTs‘] elements are changed, the validity may be compromised.”9 Courts in this jurisdiction have not held that failure to strictly comply with NHTSA guidelines per se invalidates SFSTs,
It is worth noting that although counsel in the present case, and indeed many other courts, often use “pass/fail” language to refer to performance on SFSTs, NHTSA does not utilize such terminology. In fact, NHTSA specifically states that “the SFSTs are a tool to assist [officers] in seeing visible signs of imрairment and are not a pass/fail test.”11 NHTSA identifies a preset number of “clues” for each SFST that corresponds with a likelihood that a suspect‘s blood alcohol concentration is above the legal limit. Specifically, on the HGN test, four or more clues indicates a blood alcohol concentration at or above the legal limit with an 88% accuracy rate; on the Walk and Turn test, two or more clues indiсates a blood alcohol concentration at or above the legal limit with a 79% accuracy rate; on the One Leg Stand test, two or more clues indicates a blood alcohol concentration at or above the legal limit with an 83% accuracy rate.12 Notably, NHTSA does not state what, if any, likelihood of
In the present case, Davis exhibited only two clues on the HGN. Although it is incorrect to call this a “passing score,” it is significantly below the four or more clues that correspond with a high likelihood of intoxication. Because NHTSA does not state a possible level of intoxication nor a probability of impairment for a subject only displaying two clues, I cannot give the test any weight.
On the Walk and Turn test, Cpl. Link noted two out of eight clues. Specifically, Davis failed to touch heel-to-toe on both sets of nine steps (i.e. both the up and back) which he counted as two clues. However, NHTSA only recognizes the failure to touch heel-to-toe as one clue, no matter how many times it may occur. Thus, under NHTSA guidelines, Davis exhibited only one clue, which is below the NHTSA designated threshold for this test.
The State contends that although Davis scored only one (or two) clues out of eight, Cpl. Link noted in his report that Davis, “walked normally,” meaning she did not properly follow the “heal-to-toe” instructions, and therefore this test should weigh against Davis. However, I am not persuaded after reviewing the BWC video. The NHTSA guidelines specifically identify failing to touch heal-to-toe as one clue,13 and therefore it appears that the proper scoring under the NHTSA guidelines
Finally, as for the One Leg Stand test, Davis exhibited three out of four possible clues. This testimony is borne out by the BWC video which shows Davis hopping, swaying, and put her foot down prematurely.
As discussed above, NHTSA standards indicate that a score of two out of four clues corresponds with an 83% accuracy rate that a suspect‘s blood alcohol content will exceed the legal limit.14 In her mоtion, Davis opined that she did technically balance for a total of 30 seconds. However, I consider this contention irrelevant, because even if I were to assume arguendo that she had balanced for the full continuous 30 second period and not put her foot down prematurely, she still swayed and hopped multiple times; giving her two out of four clues, which equates to the NHTSA standard discussed above.
B. Portable Breath Test
To admit а PBT into evidence at a suppression hearing, Delaware law requires the State to “lay a proper foundation, by establishing that the police officer properly calibrated the PBT machine, and that the officer had been trained to operate the
In the present matter, it is undisputed that Cpl. Link did not observe Davis for the full 15 minute period of time.17 As this Court has previously held, “‘any question as to the PBT‘s proper foundation may only go to the weight placed on the test result, rather than its admissibility.‘” 18 The 15 minute observation period is necessary for a reliable BAC reading because it allows time for any residual alcohol in the mouth (from drinking, burping, or vomiting) to dissipate, ensuring that a breath samрle comes from lung air, thus measuring actual blood alcohol concentration rather than possible recent mouth alcohol contamination.19
Because it is undisputed that Cpl. Link did not continuously observe Davis for the requisite 15-minute period, I am not satisfied that a proper foundation was
C. Cpl. Link‘s Observations
Davis told Cpl. Link prior to particiрating in the SFSTs that she had consumed an alcoholic beverage about an hour and a half to two hours prior. Cpl. Link testified at the hearing that he could smell alcohol on Davis‘s person and noted her eyes as “bloodshot and glassy.” These factors went into his analysis and the State asserts that I should also consider them in my totality of the circumstances analysis.
The BWC video captured this entire investigation in near high-definitiоn clarity. The BWC shows that Davis was cooperative, polite and did not appear to stagger, stumble or fall while walking and otherwise engaging with the officers that night. If Davis exhibited “glassy eyes” cannot be discerned in the BWC, however, the testimony that she has “bloodshot eyes” is not supported by the BWC video. During administration of the HGN test Davis‘s eye are clearly visible. Upon my review of the BWC video, the sclera of Davis‘s eyes apрears to be white and free of any redness typically associated with being “bloodshot.” Therefore, my analysis
Totality of the Circumstances Analysis
The State argues that I should consider the present matter analogous to Miller v. State.21 In Miller, the defendant had (1) driven her car into another car stopped at a red light, (2) appeared to have glassy eyes and a strong odor of alcohol on her breath, (3) admitted to consuming two beers approximately two hours earlier, (4) performed on the field tests in such a way as to score at or above the number of clues which would indicate a high likelihood of intoxication on all three tests, and (5) blew above a 0.08 on the PBT.22 The court in that case did not consider the dеfendant‘s performance on the HGN test or the PBT because proper procedure was not followed, however, it stated that even when excluding the results from the PBT and the HGN, “the alcoholic odor from two or three feet away, glassy watery eyes, failed23 walk-and-turn and one-legged standing tests, and Miller‘s admission of having consumed two beers about two hours before sufficiently supported probable causе that Miller drove under the influence of alcohol.”24
The present matter is missing an element that was present in Miller, Bease, and Maxwell—a serious traffic offense or accident. Here, Davis did not cause an accident and the traffic offenses she was cited for (excluding the DUI) are not, in my opinion necessarily indicative of impairment.29 The traffic offenses Davis was cited for involve her slowly driving past the DSP vehicle on the shoulder of the road in an attempt to get to her neighborhood which was a very short distance up the road. Given a similar roadblock (notably one without any DSP officers actually directing traffic), it is probable that most reasonable people would have made the same
The Defense argues that I should find the present case analogous to State v. Mulholland.30 However, I find Mulholland inapplicable in light of the fact that this Court excluded or gave no weight to all three SFSTs because they were improperly administered. In Mulholland, the only evidence of the defendant‘s intoxication (other than the SFSTs) consisted of a minor traffic violation, admission to drinking earlier in the day, odor of alcohol, and bloodshot eyes.31 This Court held that considering the defendant‘s “coherent appearance, good speech, passing alphabet test, and other actions,” her “minor weaving within lanes, odor of alcohol, bloodshot eyes at midnight, and admissiоn to drinking at funeral earlier in the day” were insufficient to establish probable cause that she was driving under the influence of alcohol.32
Nevertheless, because no two DUI cases are exactly alike, each will turn on its specific facts, making comparisons instructive, but not determinative.
This is a decidedly close call as to probable cause. Considerable evidence mitigates in Davis‘s favor. Howevеr, there is undeniable evidence that Davis consumed alcohol, and a fair probability existed that it impaired her ability to drive or put her over a BAC of 0.08%. But for her performance on the One Leg Stand Test, I would not find probable cause. However, when viewing the totality of the evidence, I find the facts established that there was probable cause to arrest Davis for DUI by a preponderance of the evidence.
Accordingly, Davis‘s Motion to Suppress is hereby DENIED and the matter shall proceed to trial.
It is so ordered, this 11th Day of February 2026.
Bradley V. Manning,
Judge