State of Delaware v. Valmir Joseph

IN THE COURT OF COMMON PLEAS FOR THE STATE OF
DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )
)
V. ) Case No. 2109014922
)
VALMIR JOSEPH, )
)
Defendant. )
Decided: December 2, 2022
Bridget A. Fassano Joseph Hurley, Esq.
Assistant Deputy Attorney General 1215 North Street
Carvel State Office Building Wilmington, DE 19801
820 N. French Street, 7" Floor Attorney for Defendant

Wilmington, DE 19801
Attorney for the State of Delaware

MEMORANDUM OPINION AND ORDER

Manning, J.
FACTUAL AND PROCEDURAL HISTORY

On September 30, 2021, Valmir Joseph (“Defendant”) was arrested by
Corporal Keith Johnson of the Wilmington Police Department (“Corporal Johnson”)
for the offense of Driving a Vehicle Under the Influence of Alcohol (“DUT”) in
violation of 21 Del. C. § 4177 and Failure to Obey a Traffic Control Device in
violation of 21 Del. C. § 4122.

Defendant filed a motion to suppress, arguing that his arrest for DUI was not
supported by probable cause. A suppression hearing was held on August 4, 2022.
At the hearing, Corporal Johnson described the events surrounding Defendant’s
arrest as follows. Corporal Johnson testified that he was patrolling the Center City
area of Wilmington when he observed a black pickup truck on Martin Luther King
Boulevard that was “straddling both lanes” and “not clearly in one lane or another
and continued forward in both, failing to maintain its lane.” Corporal Johnson saw
the truck stop at a red light, and when the light turned green, the truck continued
forward still straddling both lanes. He testified that he first noticed the vehicle at
Martin Luther King Boulevard and Tatnall Street before it went “a block or two
southbound towards Market Street.” Corporal Johnson signaled the truck to pull over
and conducted a traffic stop.

The State presented video footage taken from Corporal Johnson’s body worn

camera of the traffic stop. After calling in the stop, Corporal Johnson approached
Defendant’s vehicle and informed Defendant that he was driving in two lanes. When
asked by Corporal Johnson whether he had anything to drink that night, Defendant
responds, “No.” When he first made contact with Defendant, Corporal Johnson
noticed that Defendant’s eyes were watery and bloodshot, and a strong odor of
alcohol was emanating from Defendant’s mouth. Corporal Johnson also noted that
Defendant’s speech was “low and slurred.”

Corporal Johnson asked Defendant to recite the alphabet starting from the
letter “E” ending with the letter “P.” Initially, Defendant skipped one letter and went
past another letter. Then, Defendant paused and asked Corporal Johnson, “starting
at E?” After instructing Defendant to start with the letter “E” and end with the letter
“P.” Defendant “started rattling off random letters that were not in alphabetical
order.” When Corporal Johnson asked Defendant if he could do the numerical test—
counting backwards starting at the number 68 and ending with the number 53—
Defendant responded in the negative. Subsequently, Corporal Johnson asked
Defendant to step out of the vehicle. When Defendant first stepped out of the vehicle,
“he swayed a little bit.” After leading Defendant towards the back of the vehicle,
Corporal Johnson again asked Defendant if he had been drinking. While Defendant
did not give a verbal response, “he nodded his head, yes.” But when asked how much
he had to drink, Defendant answered, “No, he had not been drinking.”

After effectuating Defendant’s arrest, Corporal Johnson found an open bottle
of tequila on the floorboard of the vehicle that appeared to be “approximately
halfway gone.”! Defendant refused to submit or provide a breath sample for an
intoxilyzer test.

At the hearing, the State presented the testimony of Corporal Johnson and
entered into evidence the video footage of the events leading up to, during, and after
Defendant’s traffic stop. Defendant did not present any testimony and did not enter
any exhibits into evidence. At the close of the hearing, the Court took the matter
under advisement and gave the State thirty days to provide the Court with
supplemental briefing on the issue of whether the finding of probable cause for the
initial arrest negates or invalidates the subsequent blood draw warrant. Defendant
would then have thirty days following the State’s submission to respond.

On September 23, 2022, the State filed its Supplemental Brief (“Brief”)
addressing the issue of whether a finding of no probable cause for the initial arrest
would negate or invalidates the subsequent blood draw warrant.” Defendant did not

file a subsequent response.

' Because the open bottle of alcohol was found after Defendant was arrested for DUI, its
presence in the vehicle forms no part of my decision that probable cause to arrest existed.

? Ultimately, I do not find it necessary to reach this issue since I find that the initial arrest was
supported by probable cause.

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PARTIES CONTENTIONS

Defendant contends that the arrest of Defendant was not based upon a finding
of probable cause and argues that the State failed to provide sufficient evidence to
prove that Defendant was under the influence by a preponderance of the evidence.
Moreover, Defendant argues that the affidavit filed in support of the subsequent
search warrant also lacked probable cause.

In response, the State argues that based on the totality of the circumstances,
probable cause existed for Defendant’s arrest and probable cause existed for a
neutral magistrate to issue the search warrant for Defendant’s blood draw.
Alternatively, the State argues that if the Court finds that there was no probable cause
to arrest Defendant, the Court must turn to the search warrant for the subsequent
blood draw to determine if there was probable cause for the search.

LEGAL STANDARD

On a motion to suppress for a warrantless arrest, the State bears the burden of
establishing, by a preponderance of the evidence, that the challenged search or
seizure was valid under the rights guaranteed by the United States Constitution, the
Delaware Constitution, and Delaware statutory law. The Delaware Supreme Court

finds that “probable cause to arrest for a DUI offense exists when an officer

3 State v. Anderson, 2012 WL 4056130, at *3 (Del. Super. Oct. 14, 2010).
possesses information which would warrant a reasonable man in believing that
[such] a crime ha[s] been committed.” A police officer must present certain facts
that when viewed under the totality of the circumstances suggests that there is a fair
probability that the defendant has committed a DUI offense.°
DISCUSSION

The Delaware Supreme Court has held that “[W]hen a person operates a
motor vehicle in Delaware, he or she 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.”® However, these tests constitute a search, for which there are certain
constitutional protections. Therefore, “before a police officer can require a driver to
submit to any chemical test, the police officer must first establish that he had
probable cause to believe that the driver was under the influence of drugs or alcohol
while operating a motor vehicle.”’ To determine if that requirement was met, the
court looks at the totality of the circumstances. “A traffic violation along with an

odor of alcohol, standing alone, does not constitute probable cause to arrest the driver

4 Lefebvre v. State, 19 A.3d 287, 292-93 (Del. 2011); Bease v. State, 884 A.2d 495, 498 (Del.
2005).

5 Id.

6 Bease v. State, 884 A.2d 495, 497-98 (Del. 2005).

7 State v. Cruz, 2016 WL 3600205, at *3 (Del. Com. Apr. 27, 2016).

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for a DUI offense.”® However, if the evidence includes (1)a traffic violation, (2)
odor of alcohol, (3) rapid speech, (4) admission to drinking, (5) bloodshot and glassy
eyes and, (6) a failed alphabet test, this constitutes probable cause to arrest the driver
for a DUI offense.’

Here, Corporal Johnson testified that Defendant smelled of alcohol, had
slurred speech, had bloodshot and glassy eyes, had difficulty with a simple alphabet
test, and informed Corporal Johnson that he was unable to complete the counting
test.!° Additionally, the observation of Defendant’s improper driving is further
evidence of his possible impairment that the officer properly considered. Finally,
Corporal Johnson testified that although Defendant denied drinking alcohol, when
told that he smelled like alcohol, Defendant nodded his head in the affirmative.
Defendant refused to submit to standardized National Highway and Traffic Safety
Administration Standardized Field Sobriety Tests so the results of those tests cannot
be considered.

I recognize that these facts are not the strongest in support of probable cause,
however, under the totality of the circumstances, they amount to a fair probability

that Defendant was impaired and were thus sufficient for Corporal Johnson to arrest

8refebvre v. State, 19 A.3d 287, 293 (Del. 2011).

? Id.

'0 Tt is not totally clear from Defendant’s answer if he was unable to count for some reason or
was simply refusing to do the test.

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Defendant and subject him to further testing.
CONCLUSION
For the foregoing reasons, the Defendant’s Motion to Suppress is DENIED,
and the case shall proceed to trial as scheduled.

IT IS SO ORDERED.

Bradley¥¥-Manfing,
Judge