Verde v. Simpler, C.A. No. CPU6-20-000430

CourtCourt of Common Pleas of Delaware
Writing for the CourtThe Honorable Rae M. Mims
PartiesEDGAR A. VERDE, Defendant/Appellant v. JANA SIMPLER, Director, Plaintiff/Appellee
Docket NumberC.A. No. CPU6-20-000430
Decision Date15 September 2020

EDGAR A. VERDE, Defendant/Appellant
v.
JANA SIMPLER, Director, Plaintiff/Appellee

C.A. No. CPU6-20-000430

COURT OF COMMON PLEAS OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY

Submitted June 15, 2020
September 15, 2020


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.

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FACTS1

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

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fact and conclusions of law."2 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.

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
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