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

STATE OF DELAWARE

v.
Case NO. 1402016580

DUEVORN D. HARRIS,

VVVV\/VV

Defendant.

Submitted: January 8, 2018

Decided: March 12, 2018
Matthew Hicks, Esquire joseph Hurley, Esquire
Deputy Attorney General Attorney At Law
820 N. French Stteet 1215 King Street
\X/ilmington, DE 19801 \X/ilrnington, DE 19801
Aftomej)for fhe 5hsz of 136/aware Atl‘omej/for Defendcm¢

DECISION AFTER TRIAL

sMALLS, C.J.

FACTUAL AND PROCEDURAL I-IISTORY

On February 25, 2014, Duevorn Harris (“Defendant”) was arrested and charged with
the offenses of Driving \X/hile Under the lnfluence of Alcohol (DUI) in violation of 21 De/.
C. §4177, Failure to Stop at a Red Light in violation of 21 De/. C. §4108(a)(3)(a), and Failure
to Obtain Residence License within Sixty (60) days in violation of 21 De/. C. §2704(a).
Defendant failed to appear for his arraignment on May 9, 2014, after which a warrant was
issued and subsequently returned on August 25, 2014. At the September 16, 2014
arraignment, the Defendant entered a plea of not guilty and the matter was scheduled for
case review on October 10, 2014, where Defendant elected a jury trial but afterward elected
to participate in the DUI Treatment Court Program, (“DUI Program”). Thereafter, the case
was rescheduled several times for jury trial.

On january 30, 2015, Defendant filed a Motion to Suppress which was withdrawn on
March 15, 2016. On May 19, 2017, Defendant entered a plea to DUI 2nd Offense and was
sentenced pursuant to 21 De/. C. §4177(d)(2), into the DUI Program in the Court of
Common Pleas. When Defendant was interviewed by the Probation Intake office it was
discovered that Defendant had relocated to Kent County. This change in residence
rendered him ineligible for the New Castle County DUI Program. On june 23, 2017,
Defendant filed a Motion to \X/ithdraw his Plea and Application for admission to the DUl
Program which was granted The case was restored to the jury trial calendar.

On November 14, 2017, before trial commenced, Defendant moved for
reconsideration of his decision for entry into the DUI Program which was denied.

Defendant waived his right to a trial by jury and the matter proceeded with a bench trial.

The facts which led to Defendant’s arrest are the following. Delaware State Trooper
Austin Andres (“Andres”) testified he was on patrol the night of February 25, 2014 in
Newark, Delaware when he observed a vehicle drive through a red light. Andres pulled the
vehicle over which was driven by Defendant Andres testified he detected an odor of
alcohol emanating from the vehicle, the Defendant’s eyes were bloodshot and glassy, and his
speech was slurred.

Based on these suspicions, Andres had Defendant perform field sobriety tests,
During the field sobriety tests, Defendant was unable to maintain his balance and continued
to drop his arms and foot. In accordance with his training and experience, Andres
concluded Defendant was under the influence of alcohol. Subsequently, Defendant was
taken into custody and transported to Troop 2 where Andres administered an Intoxilyzer
test. The test revealed a Blood Alcohol Content of .163. Thereafter, Defendant was
arrested and charged with the above offenses

At the beginning of trial, Defense counsel stipulated that the officer had reasonable
articulable suspicion to stop the vehicle, and that the officer had probable cause to arrest the
Defendant Defense counsel further stipulated the Intoxilyzer machine was properly
calibrated, the calibration logs were accurate, and the Intoxilyzer card was proper. During
trial, the State admitted three (3) EXhibits. Andres testified he is employed as a Trooper with
the Delaware State Police and received DUI training as part of his employment Andres
further testified that on February 25, 2014, he observed Defendant proceed through a red
light and when he pulled him over, he detected a strong odor of alcohol coming from

Defendant’s vehicle, his eyes were bloodshot and glassy and the Defendant’s speech was

slurred. In addition, Andres testified he administered the field tests according to the
National Highway Traffic Safety Association (NHTSA) standards and based on the results
and his observations, he arrested the Defendant for suspicion of DUI and transported him
to Troop 2.

During cross-examination, Defense counsel questioned Andres regarding his
recollection of the Defendant since the arrest occurred around three-and-a-half years ago.
Defense counsel also questioned Andres as to his procedure in administering the field
sobriety tests of Defendant On redirect, Andres testified that Defendant was swaying and
held onto the door as he exited his vehicle. Andres further testified that Defendant stated he
understood the instructions of the field sobriety tests, though he started the tests before
instructed Andres also testified during the field sobriety tests, Defendant was unable to
keep his balance.

\X/hile at Troop 2, Andres testified the Defendant was observed for twenty (20)
minutes before he administered the Intoxilyzer test which indicated a Blood Alcohol
Content of .163.1 Andres testified he used his cell phone for the time to start the twenty (20)
minute observation period, which began at 0312 hours, and used the Intoxilyzer machine to
indicate the time to end the observation period, which was at 0346 hours. Andres further
testified the Defendant was subjected to the IntoXilyzer test within one (1) hour after the
Defendant was seen in control of his vehicle. Moreover, the State admitted calibration

checks of the Intoxilyzer machine before and after the Defendant’s test.2 Defense counsel

 

l State’s Exhz'bz`z‘ 3.
2 State’s Ex/az`bz'z 7 and Exhz'bz'z 2.

objected to Andres testifying to the procedure of how the Intoxilyzer calibrations were
conducted

During closing arguments, the Court questioned the defense’s position since at the
beginning of the trial, Defendant stipulated to the IntoXilyzer test and is subsequently
arguing the test involved an invalid protocol. Defendant contended that the stipulation to
the lntoxilyzer calibrations does not include the procedures of how the testing was
performed The Court stated that stipulating to the lntoXilyzer card indicates you stipulate
to the procedure and the results, therefore, questioning the subsequent results is
inconsistent Lastly, Defense counsel stated he would never stipulate to an Intoxilyzer
procedure before the officer testifies because he does not know the process behind the
results. At the conclusion of trial, the matter was taken under advisement

On November 27, 2017, Defendant filed post-trial submissions requesting
permission to supplement closing arguments ln its submission, Defendant’s counsel admits
to have overlooked a vital component of the foundational requirements that must be
established in this case.3 Defendant asks the Court to disregard the Intoxilyzer tests results
and enter a verdict of not guilty on the basis that the IntoXilyzer results do not provide a
proper foundation for proof beyond a reasonable doubt.

Onjanuary 22, 2018, the Court wrote a letter to the State inquiring if they had a
response to Defendant’s post-trial submissions. The State replied they did not wish to have

a hearing on the post-trial submission and for the Court to rule on the case as it stands.

 

3 Defendant’s Post-Trial Arguments, pg. 4.

DISCUSSION

At the commencement of trial on November 14, 2017, the State and Defendant
stipulated to the admission of the Intoxilyzer calibration records4 and the test results of the
Intoxilyzer test, which indicated a blood and alcohol content of .163.5 Afterwards, the Court
inquired what issue remained for trial, to which defense counsel responded, “guilt or
innocence.” The Court had previously ruled the officer had probable cause to take the
Defendant into custody.

Title 11 De/. C. § 4177(a)(1) provides that, “[n]o person shall drive a vehicle . . . when
the person is under the influence of alcohol.” Section (a)(4) adds, “. , .that no person shall
operate a motor vehicle when the person's alcohol concentration is .08 or more.”6 In order
for a person to be found guilty under §4177, the State must prove, beyond a reasonable
doubt, that the defendant was driving and that he was under the influence of alcohol or
drugs while he was driving.7

In Defendant’s post-trial submission, he argues, the “fatal flaw” in the State’s case is
utilizing two separate, and not calibrated, time instruments to measure the observation
period Defendant reasons that this is a foundational defect which must preclude
admissibility of the blood alcohol test results.’78 Furthermore, Defendant argues that the use
of separate instrument to measure the observation period with reference to the Intoxilyzer,

officiates the requirement of a twenty (20) minute observation period Defendant argues

 

4 State’s Ex/yz`bz'tr 7 and EX/Fz`hz'l 2.

5 State’s Exhz`bz'i 3.

6 Del. Code Ann. tit. 21, § 4177 (\X/est).

7 Leu/z'i v. §fafe, 626 A.2d 1350, 1355 (Del. 1993).
3 Defendant’s Post-Trial Arguments, pg. 1.

because Andres used his cell phone to begin the twenty (20) minute observation period and
the lntoxilyzer machine to conclude the required time, the clocks are not synchronized and
do not provide proof that the Defendant was actually observed for twenty (20) minutes.9

Defendant’s post-trial arguments recognize the departure from orderly trial practice
in the interest of justice and rely on Manga/ a Slafe where the court held that “[T]here are
situations where the interest of justice require courts to be flexible with procedural
requirements before applicants suffer procedural default on substantial claims.”10 This
South Carolina case involved post-conviction relief proceedings Furthermore, Defendant
argues in a footnote that “this situation is not a requirement where the Court will expend
extra legal energy than would have been utilized in the initial analysis, but rather only the
sequence of consideration of arguments.”11 Defense counsel begs that “justice requires the
hapless client not pay the price by complete deprivation of his liberty because of an
attorney’s error.”]2

Defendant’s post-trial arguments seek to supplement and elaborate on the use of
instruments involved to determine the twenty (20) minute observation period since defense
counsel had no way of knowing that it would be now become an issue in this case.
Defendant cites this Courts opinion in ffaz‘e a Bar¢‘/zfz‘“ where the officer used his cell phone
to determine the beginning of the observation period and the Intoxilyzer machine clock as

the end time, The Court held “the use of different time insturments to determine the

 

9 Id.

“‘ Mang¢z/ 1). .)"Iaz‘e, 421 S.C. 85, 99, 805 S.E.Zd 568, 575 (2017).

" Defendant’s Post-Trial Arguments, pg. 3, fn. 3.

12 Id at pg. 4, (fn. 4; Defendant adds “sanctions should be directed at miscreant-attorney rather than the
victim-client>.

13 2011 \X/L 7563024 (Del. Corn. Plea, Aug. 19, 2011).

6

observation period failed to satisfy the twenty (20) minute observation requirement because
the clocks were not coordinated or syncronized.”14 Thus, the Court suppressed the results
of the Intoxilyzer.

Here, the fatal flaw in Defendant’s case is the fact that defense counsel stipulated to
all the State’s Exhibits prior to trial. Despite this, Defense counsel argues that he only
stipulated to the admission of the lntoxilyzer card Thus, he did not stipulate that it was the
result of a valid protocol The Court finds this disingenuous. Stipulating to the Intoxilyzer
card includes its admission to evidence and acceptance that the results were performed
properly. Defense counsel waived his right to argue this issue post-trial. Defendant’s
stipulation is conclusive on those issues in this case. In addition, Defense counsel stated that
the issue at trial was “guilt or innocence” in which the State has proved beyond a reasonable
doubt This proof is evident because the statute provides that where the persons’s alcohol
concentration is .08 or more, that person is guilty under the statute.

CONCLUSION

For the reasons discussed above, Defendant’s post-trial argument submission lacks
merit and is DENIED. l find that the facts in the record prove beyond a reasonable doubt
the Defendant disregarded the red light, failed to obtain a resident license within sixty (60)
days, and was operating his vehicle while under the influence of alcohol.

ACCORDINGLY, Defendant is found guilty on each offense. The Clerk shall

schedule these matters for sentencing

 

‘4 B¢m'/zj? at *2.

IT IS SO ORDERED. f

1 /, .-"\ -)t].§rfélls",f
hief]udge

