State of Delaware v. Grace Davis

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

STATE OF DELAWARE,
Plaintiff,
C.A. No.: 2504002261

V.

GRACE DAVIS,

Defendant.

Submitted: January 8, 2026
Decided: February 11, 2026

MEMORANDUM OPINION AND DECISION ON DEFENDANT’S
MOTION TO SUPPRESS (DUI CASE)

Joseph Lafferety, Esq. Deputy Attorney General.

John S. Malik, Esq. Defense Counsel—Grace Davis.

Manning, J.
Introduction

On Apri! 5, 2025, Grace Davis (Davis), was arrested for the offense of Driving
Under the Influence (“DUI”) and other traffic violations.' 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 Intoxilyzer 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.

' Failure to Obey an Authorized Person Directing Traffic in violation of 21 Del. C. § 4103;
Inattentive Driving in violation of 21 Del. C. § 4176; Failure to Obey Traffic Control Devices
Designating Lane in violation of 21 Del. C. § 4122; Failure to have Insurance Identification in
Possession in violation of 21 Del. C. § 2118; and Driving with Expired Registration in violation
of 21 Del. C. § 2115.
FACTS

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 before she was intercepted by DSP Sgt. Scarmazza and DSP Cpl. Link.
Set. 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 informed Davis that she had driven into a crime scene and instructed
her to back her vehicle up several feet. She then moved the car as instructed and
Cpl. Link had Davis exit the vehicle and follow him several feet behind the trunk of
the car, where he began to investigate her for a possible DUI. Cpl. Link explained
that because he smelled alcohol and observed Davis’s eyes to be “bloodshot” and
“glassy,” he felt it necessary to conduct further investigation into her ability to drive.

Cpl. Link asked Davis where she was coming from, and Davis responded that
she had been at Trolley 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) 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,

2 The National Highway Traffic Safety Administration (NHTSA)—part of the U.S. Department of
Transportation—utilizes a system where officers analyze a series of possible clues that indicate a
suspect’s level of impairment
Cpl. Link stated that Davis did not perform the Walk and Turn test as instructed, and
instead walked in what he described as a “normal” manner. Third, Davis performed
the One Leg Stand test, where Cpl. Link observed her to exhibit three of four possible
clues. Finally, Cpl. Link conducted the Preliminary Breath Test (“PBT”), where
Davis’s results indicated that her blood alcohol level was 0.164%. At this point, Cpl.
Link placed Davis under arrest and transported her to DSP Troop One to undergo
Intoxilyzer testing.

Just after 2:00 A.M. that same morning, Cpl. Link administered the
Intoxilyzer 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 alcoholic 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 Intoxilyzer test because she

“passed” two out of three of the field tests, spoke clearly, did not exhibit bloodshot
or glassy eyes on the BWC video, and was not involved in a vehicle collision or

serious moving violation prior to the traffic stop.

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.”? 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.”* “This totality consideration is based on ‘the factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act,’”> and the Court must review and analyze the facts of each
case based “upon what the arresting officer knew at the time the decision was made

to take the defendant into custody.”°

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. |

also ruled that the Intoxilyzer test performed on Davis was properly administered;

3 State v. Peterson, 2018 WL 1801260, at *3 (Del. C.P. Apr. 16, 2018) (citing State v.
Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010).

4 Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011).

> Id. (quoting State v. Cardona, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008)).

6 Lefebvre, 19 A.3d at 293.
meaning that the Intoxilyzer result is admissible on the condition that Davis’s arrest
was supported by probable cause. Accordingly, this decision will focus solely on
the issue of whether Cpl. Link had sufficient probable cause to arrest Davis after
conducting SFSTs.
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 standardized manner,” the combination of the
three tests boast accuracy ratings of between 86-95%’ in determining whether a
driver’s blood alcohol concentration is above 0.08% (“the legal limit’). 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.”” Courts in this jurisdiction have not

held that failure to strictly comply with NHTSA guidelines per se invalidates SFSTs,

7 For the three separate studies, the tests accuracy ratings were 86% in Colorado, 95% in Florida,
and 91% in San Diego. See National Highway Traffic Safety Administration, DWI Detection and
Standardized Field Sobriety Testing Refresher Instructor Guide (Revised 2023),
https://www.nhtsa.gov/sites/nhtsa.gov/files/2024-09/16412-

2023 SFST Refresher Instructor Guide-tag.pdf at 9.

8 Accuracy ratings based on NHTSA Field Validation Studies of Standardized Field Sobriety Tests
in Colorado, Florida, and San Diego. See Jd. At 9. On their own, the HGN test has an accuracy
rate of 88% in determining whether a driver’s BAC is above 0.08%; the Walk and Turn test 79%
accurate; and the One Leg Stand test 83% accurate. See Id. At 33; 43; and 50.

? Id. At 125.

but a sufficient deviation from NHTSA guidelines will diminish the reliability of the
SFSTs to the point of invalidation.'®

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 impairment and
are not a pass/fail test.”!! 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 indicates 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.'? Notably, NHTSA does not state what, if any, likelihood of

10 See State v. Dale, 2016 WL 691445, at *3 (Del. Super. Ct. Feb. 11, 2016) (“Although failure to
strictly adhere to NHTSA requirements does not necessarily invalidate the test, the deviation from
the fifteen-minute requirement in this case is so severe that the Court will not consider the PBT
results.”); see also State v. Solanki, 2019 WL 5858195, at *3 (Del. C.P. Nov. 8, 2019) (quoting
State v. Reilly, 2018 WL 7049372, at *3 (Del. C.P. Nov. 30, 2018) (“[S]ufficient deviation from
the NHTSA guidelines can diminish FSTs reliability.”).

'! National Highway Traffic Safety Administration, DWI Detection and Standardized Field

Sobriety Testing Instructor Guide, (revised 2/2023),
https://www.nhtsa.gov/sites/nhtsa.gov/files/2023-03/15911-SFST_ Instructor Guide_2023-
tag.pdf at 57.

'2 Td. At 329; 340; and 348.
impairment is present if a test subject displays /ess than the number of clues noted
above.

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,!? and therefore it appears that the proper scoring under the NHTSA guidelines

31d. At 266.
is only one out of eight clues. As with the HGN, because NHTSA does not state a
possible level or probability of impairment for a subject displaying only one clue, I
cannot give this test any weight.

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.'* In her motion, 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 a 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

4 Additionally, the NHTSA SFST Refresher Manual states that “based on research, if an
individual shows two or more clues or cannot complete the OLS, there is a good chance the BAC
is at or above 0.08%.” See Id. At 66.

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test.”'!> NHTSA operating procedures require trained officers to observe a suspect
for a period of at least 15 minutes before administering the PBT.'®
In the present matter, it is undisputed that Cpl. Link did not observe Davis for

coe

the full 15 minute period of time.'’ 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.’”!® 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 sample
comes from lung air, thus measuring actual blood alcohol concentration rather than
possible recent mouth alcohol contamination."

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

'S State v. Mendez-Garcia, 2019 WL 5295566, at *4 (Del. C.P. Oct. 16, 2019), aff'd, 2020 WL
4251760 (Del. Super. Ct. July 24, 2020) (quoting Miller v. State, 4 A.3d 371, 374 (Del. 2010)).

16 See Dale, 2016 WL 691445, at *3 (“Standard procedure for administering the PBT requires a
fifteen-minute observation period before the test is performed.”).

'7 Davis argues that the PBT results are “invalid and should not be considered in determining
probable cause;” and the State concedes that “the required time limit for the PBT was not
established . . . under this Court’s precedence, the results of the PBT is likely to be given ‘little
weight’ in the probable cause analysis.”’)

18 Syate v. Beheler, 2010 WL 2195978, at *4 (Del. C.P. Apr. 22, 2010) (quoting State v. Blake,
2009 WL 3043964 at *4 (Del. C.P. Sept. 14, 2009).

'9 See National Highway Traffic Safety Administration, DWI Detection and Standardized Field
Sobriety Testing Participant Manual, (Revised 2/2023),
https://www.nhtsa.gov/sites/nhtsa.gov/files/2023-03/15911-SFST_Participant_Manual_2023-
tag.pdf. At 21. (“It takes approximately 15 minutes for the residual alcohol to be eliminated from
the mouth. The only sure way to eliminate this factor is to make sure the subject does not consume
any alcohol for at least 15 to 20 minutes before conducting a breath test. . . do not permit the
subject to put anything in their mouth for at least 15 to 20 minutes prior to testing”).

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established for the reliability of the PBT reading and therefore will not consider the
results in making this ruling. 7°
C. Cpl. Link’s Observations

Davis told Cpl. Link prior to participating 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-definition
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 appears to be white and free of

any redness typically associated with being “bloodshot.” Therefore, my analysis

20 See Dale, 2016 WL 691445, at *3 (Where the officer observed the suspect for a period of
approximately eight minutes, the Court stated: “[a]lthough failure to strictly adhere to NHTSA
requirements does not necessarily invalidate the test, the deviation from the fifteen minute
requirement in this case is so severe that the Court will not consider the PBT results”); see also
State v. Bell, 2015 WL 1880591, at *2 (Del. C.P. Apr. 23, 2015) (“[The] Court found that, because
Corporal Martinez could not have properly observed Bell for the required fifteen-minute
observation period, the PBT was inadmissible.”).

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will only consider as fact Davis’s admission that she had consumed an alcoholic
beverage earlier in the night, smelled of alcohol, and had glassy eyes.

Totality of the Circumstances Analysis

The State argues that I should consider the present matter analogous to Miller
v. State.) 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.” The court in that case did not consider the defendant’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,
failed”? walk-and-turn and one-legged standing tests, and Miller's admission of
having consumed two beers about two hours before sufficiently supported probable

cause that Miller drove under the influence of alcohol.””*

2I Miller v. State, 4 A.3d 371 (Del. 2010).

22 Miller 4 A.3d 371 at 372-74.

3 Though I disagree with the terminology used, I will maintain the integrity of the quote.
4 Td. 374-75.

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However, in coming to this conclusion, the Supreme Court cited both Bease
v. State? and State v. Maxwell,’° both of which involved elements absent from this
case. In Bease, the Supreme Court “held that the commission of a traffic offense,
odor of alcohol, bloodshot glassy eyes, rapid speech, and the defendants’ admission
to drinking alcohol were sufficient to establish probable cause,””’ In Maxwell, the
‘Supreme Court “held that an accident, alcoholic odor, admitted alcohol
consumption, and the Defendant's dazed appearance constituted probable cause.””®

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 DUD) are not, in my
opinion necessarily indicative of impairment.’? 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

5 Bease v. State, 884 A.2d 495 (Del. 2005).

26 State v. Maxwell, 624 A.2d 926 (Del. 1993).

27 Miller 4 A.3d 371 at 375 (Del. 2010) (citing Bease, 884 A.2d 495) (emphasis added).

28 Miller 4 A.3d 371 at 375 (Del. 2010) (citing Maxwell, 624 A.2d 926) (emphasis added).

2° In Bease, where the Court ruled there was sufficient trustworthy information to conclude that
probable cause to arrest existed, the arresting officer observed the defendant “abruptly travel from
the right straight lane into the turn lane for Interstate 95, forcing multiple vehicles that were already
in that lane to rapidly decelerate,” and then cross “the solid white line, which is not designated for
lane deviation, and into the right travel lane for Interstate 95.” Bease 884 A.2d at 496-97.

14
decision after some hesitation. I am therefore not convinced that Davis’s actions in
the present case are akin to a traffic offense indicative of impairment or causing an
accident, and therefore I do not find this case analogous to Miller.

The Defense argues that I should find the present case analogous to State v.
Mulholland3® 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.*! 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 admission to drinking at funeral earlier in the day” were
insufficient to establish probable cause that she was driving under the influence of
alcohol.°?

Nevertheless, because no two DUI cases are exactly alike, each will turn on

its specific facts, making comparisons instructive, but not determinative.

30 State v. Mulholland, 2013 WL 3131642 (Del. C.P. June 14, 2013).
31 Id at *6.
32 Td. at *5,

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CONCLUSION

This is a decidedly close call as to probable cause. Considerable evidence
mitigates in Davis’s favor. However, 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 11" Day of February 2026.

Bradley V. Manning,
Judge

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