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Testerman v. Shahan8/4/2004
This is an appeal by defendant Allan D. Testerman from the Division of Motor Vehicles' revocation of his license pursuant to 21 Del. C. § 2742.
BACKGROUND
On March 12, 2003, Allan D. Testerman ("Testerman") was arrested and charged with driving a motor vehicle under the influence of alcohol in violation of 21 Del. C. § 4177, and an improper lane change. He refused to take an intoxilizer test after the arresting officer explained that refusal to take the test would result in the automatic one-year suspension of his license under the implied consent provisions of Delaware law. The Division of Motor Vehicles ("DMV") revoked defendant's driver's license pursuant to 21 Del C. § 2742. Testerman subsequently requested a DMV hearing to contest the revocation. A DMV hearing was held on September 11, 2003. At the conclusion of the hearing, the hearing officer revoked Testerman's license pursuant to 21 Del. C. § 2742. The hearing officer held: (1) the police officer had probable cause to believe Testerman violated 21 Del. C. § 4177; (2) the State proved by a preponderance of the evidence that Testerman violated 21 Del. C. § 4177; and (3) Testerman refused to submit to an intoxilizer test after being informed of the penalty of revocation for such a refusal. Testerman appealed DMV's ruling to this Court.
STANDARD OF REVIEW OF DMV ORDER
Appeals from orders issued by the DMV are reviewed by this Court on the record. Civil Rules Governing the Court of Common Pleas, 72.1(a) and 72.1(g); Shahan v. Landing, 643 A.2d 1357, 1359 (Del.1994). As a result, the appropriate scope of review is limited to correcting errors of law and determining whether the record below supports the lower court's findings of fact and conclusions of law. Mills v. Voshell, 1993 WL 543997 (Del.Super.Ct.) citing Eskridge v. Voshell, 593 A.2d 589 (Del.1991).
THIS COURT'S EARLIER FINDINGS
On December 8, 2003, in the criminal proceedings regarding this same incident, this Court heard Testerman's motion to suppress the officer's testimony subsequent to the stop. At the suppression hearing, the Court ruled that the police officer had reasonable articulable suspicion to stop the defendant's vehicle, and the requisite probable cause to arrest Testerman for driving under the influence of alcohol. The Court also ruled that the police had the authority to stop Testerman even though they were out of their jurisdiction at the time of the stop. The Court then denied the motion to suppress, and a jury trial followed. Testerman was found guilty of the illegal lane change charge but the jury was hung on the DUI charge, and the Court declared a mistrial. Testerman subsequently pled to an amended charge of reckless driving.
ISSUES ON APPEAL
Testerman raises five issues in this appeal. The first three question the legitimacy of the actual stop of Testerman's car and the subsequent arrest. The last two issues are regarding the DMV's handling of Testerman's appeal.
A. Legitimacy of the stop and subsequent arrest
*2 At the DMV hearing, and again in the present appeal, Testerman raised the following issues: (1) Did the officer have the authority to make a stop of Defendant's vehicle when he was outside of his jurisdiction from the time he observed Testerman's vehicle until the time he pulled him over and eventually arrested him? (2) Did the officer have reasonable articulable suspicion to pull Defendant's vehicle over for driving two feet over the fog line and then overcorrecting and going six inches over the center line? (3) Did the officer have the necessary probable cause to arrest Defendant for DUI?
Testerman raised and argued each of these issues at the suppression hearing before this Court on December 8, 2003. This Court found that the officer did have the authority to stop
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