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

STATE OF DELAWARE, )
)
v. °) Case No. 1605004863
)
JASON BILLINGS, )
)
Defendant )
Submitted: July 13, 2017
Decided: January 19, 2018
Erik ToWne, Esquire J ames M. Stiller, Jr., Esquire
Deputy Attorney General Schwartz & Schwartz
820 N. French Street, 7th Floor 1140 South State Street
Wilmington, DE 19801 Dover, DE 19901
Attorney for the State of Delaware Attorney for Defendant

MEMORANDUM OPINION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS

The defendant, Jason Billings (hereinafter the “Defendant”), brings this motion to suppress
evidence obtained in connection With a Driving Under the Influence (“DUI”) investigation The
Defendant raised two grounds for suppression: 1) the investigating officer lacked probable cause
to arrest the Defendant and 2) the officer failed to administer the intoxilyzer test in accordance
With Delaware State Police (hereinafter “DSP”) standard operating procedures and the instructions
of the intoxilyzer machine’s manufacturer.

On March 7, 2017, a hearing Was convened on the Motion. The Court heard testimony
f`rorn Trooper Daniel Myers (hereinafter “Trooper Myers”) of the DSP Troop 6. The Court issued

a bench ruling and found there Was sufficient probable cause to arrest the Defendant under

suspicion of DUI. The Court then scheduled the balance of the Defendant’s Motion to be heard at
a later date. On July 13, 2017, a hearing was convened on the balance of the Motion to Suppress,
at which time the Court heard testimony from Cynthia McCarthy (hereinafcer “Ms. McCarthy”).
During the hearing, the State informed the court that the legal issue presented had been addressed
by a ruling of the Superior Court. At the conclusion of the hearing, the Court determined the
Defendant’s Motion to Suppress would be best addressed by a written opinion after transcript from
the Superior Court case mentioned by the State has been obtained. This is the Final Decision and

Order of the Court on the balance of Defendant’s Motion to Suppress.

FACTS

During the first hearing, convened on March 7, 2017, the Court heard from Trooper Myers.
Trooper Myers had been a member of the DSP for over a year and a halfl and, at the time of the
events, had been a part of around 20 DUI investigations Trooper Myers stated he had DUI training
at the DSP Academy, for which he received a certification.2

The Court heard testimony about the events of May 8, 2016. On that date, Trooper Myers
was on routine patrol when he received a call from Corporal Collins regarding a possible DUI near
the intersection of Delaware Route 2 and Route 7, in front of Crossroads Restaurant. When he
arrived at the scene, Trooper Myers saw a vehicle stopped at the roadway with an open driver’s
side door, a person sitting in the driver’s seat, and a large puddle of vomit outside the driver’s side
door. Trooper Myers identified the Defendant as the person sitting in the driver’s seat. Trooper
Myers testified Defendant told him that he had just left the Bullseye Saloon where he had taken

two shots. Trooper Myers also testified that Defendant had blood-shot, glassy eyes. Trooper Myers

 

1 As of the date of the hearing.
2 Trooper Myers took an additional 40 hour DUI class before the May 8, 2016 incident.

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took the Defendant to the Crossroads parking lot where it would be safer to conduct a Field
Sobriety Test. At the parking lot, Trooper Myers administered the following tests: the Nine-Step
Walk and Turn Test; the One-Legged Stand Test; the Horizontal Gaze Nystagrnus Test; and the
Vertical Gaze Nystagmus Test.

Afcer performing the tests, Trooper Myers arrested Defendant on suspicion of DUI. Once
inside the police cruiser, Trooper Myers administered a Portable Breathalyzer Test (hereinafter
“PBT”). Defendant blew a 0.159% blood alcohol concentration (hereinafter “BAC”) on the PBT.
After performing the tests, Trooper Myers transported Defendant to Troop 6, where he would
administer an Intoxilyzer 5000EN Breathalyzer Test (hereinafter “Intoxilyzer”). Trooper Myers
testified that in the Impaired Driving Report (hereinafter “IDR”) the block indicating Defendant
was wearing dentures was checked, but that the block indicating Defendant removed his dentures
was not checked.

During the second hearing, on July 13, 2017, the Court heard from Ms. McCarthy, a
forensic chemist employed by the DSP since 2009. Ms. McCarthy testified she oversees the State’s
breath alcohol program, with her primary duties involving maintaining the State’s Intoxilyzer
machines and training police officers on the use of the machine. Ms. McCarthy has certified
approximately 900 officers while employed by the DSP.

The Court heard testimony on Ms. McCarthy’s qualifications and professional training.
Ms. McCarthy received a Bachelor of Science in Biology from University of Pittsburgh. Ms.
McCarthy’s career history includes several positions as laboratory technologist, technician, and
manager, as well as teaching positions in Delaware schools. Ms. McCarthy is a member of the
International Association for Chemical Testing (hereinafter the “IACT”), and has attended

numerous courses on continuing education. These courses include, inter alia, the Robert F.

Borkenstein Course on Alcohol and Highway Safety: Testing, Research, and Litigation; the CMI
Intoxilyzer Operation, Maintenance, and Calibration Course;3 and the Quality Assurance for
Forensic Alcohol Testing Programs Workshop, hosted by the IACT.

On March 18, 2010, Ms. McCarthy received a Certificate of Completion and Competency
on the Intoxilyzer from CMI, Inc. (hereinafter “CMI”). According to the Certificate, “CMI
qualifies [Ms. McCarthy] to perform those covered maintenance procedures [and] instruct others
on the operation of the Intoxilyzer [.]” Ms. McCarthy testified she is certified to perform routine
maintenance on the Intoxilyzer. Ms. McCarthy’s primary responsibility is in verifying each
intoxilyzer machine remains calibrated and then certifying the continued calibration. Ms.
McCarthy testified she performs this function approximately once every forty-five days. However,
it is Delaware’s policy to send the unit back to CMI to perform many repairs, including calibration.

Ms. McCarthy also provided testimony on the basic principles underlying how the
intoxilyzer functions, the effects of residual mouth alcohol on the intoxilyzer, the effects of
dentures in retaining mouth alcohol, and related matters. The fundamental principle of breath
alcohol detection involves the application of Henry’s Law, which Ms. McCarthy described as a
fundamental law providing a constant and known amount of gas dissipation within a closed system
at a known temperature. The intoxilyzer detects gas particles contained within the subject’s
alveolar breath and applies a mathematical formula to calculate the corresponding BAC of the
subject. According to Ms. McCarthy, this calculation is conservative, and it invariably reports the
BAC as equal to or lower, and never higher, than the subject’s actual BAC.

Residual mouth alcohol, as described by Ms. McCarthy, is alcohol retained - but not

absorbed - within the mouth of the subject. The presence of mouth alcohol increases the amount

 

3 CMI Inc. is the manufacturer of the intoxilyzer machines used in Delaware.

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of alcohol detected by the intoxilyzer, potentially leading to a false positive or an erroneous
reported BAC. The Intoxilyzer includes a slope detection device, which is capable of detecting
mouth alcohol. When mouth alcohol is detected, the intoxilyzer reports the sample as invalid; the
printout of the result contains “XXX” in place of a numerical BAC value. Ms. McCarthy testified
the slope detector is not entirely reliable at detecting residual mouth alcohol. The requisite twenty-
minute observation period4 is intended to accommodate for this deficiency, as Ms. McCarthy
testified mouth alcohol dissipates within nine to eleven minutes.

Ms. McCarthy discussed an article titled “The Effect of Dentures and Denture Adhesives
on Mouth Alcohol Retention” (hereinafter the “Article”).5 The Article was originally published
in the July, 1992 volume of the Journal of Forensic Sciences, a peer-reviewed journal accepted
within the scientific community of forensic chemists. The study discussed in the Article utilized
twenty-four6 participants described as “alcohol-free” and “denture-wearing,” with three tests
performed on each participant across a span of approximately eight months. At each test, the
participant would swish thirty milliliters of 80-proof brandy in his or her mouth for two minutes,
without swallowing the brandy, and would then spit the brandy out. The participant would then
be tested utilizing an intoxilyzer machine to determine how long it took the reading to return to
negative for the presence of alcohol. The test was performed under three conditions: without

dentures; with dentures but without denture adhesive; and with dentures and denture adhesive.

 

4 Ms. McCarthy testified CMI only requires a fifteen-minute observation period, while Delaware requires twenty
minutes. In the event the intoxilyzer detects mouth alcohol, officers are trained to wait an additional twenty minutes
or to obtain a sample of the subject’s blood.

5 The Article was authored by Patrick M. Harding, B.S.; Mary C. McMurray, B.S.; Ronald H. Laessig, Ph.D.; Donald
O. Simley II, D.D.S.; Paul J. Correll, D.D.S.; and John K. Tsunehiro, D.D.S. The Article was also provisionally
admitted, over the Defendant’s objection, pending the Court’s ruling as to whether Ms. McCarthy is properly an
expert.

6 There were originally twenty-five participants, but one participant was disqualified during the course of the study
for consuming rather than spiting put the brandy.

According to the Article, participants were selected by referral from two of the authors, an
article in the State Laboratory of Hygiene employee newsletter, and by word of mouth.7 The
participants supplied their own dentures,8 while the authors provided fifteen different denture
adhesives - comprised of powders, creams, liquids, and pads by various manufacturers - and
assigned to specific participants, Some adhesives were only assigned to a single participant, and
no single adhesive exceeded use by three participants, Prior to each session, the participants
answered questions pertaining to their denture usage and were then familiarized with the test
parameters Prior to testing, each participant submitted to an intoxilyzer test to verify there was
no prior alcohol content within the participant’s system.

Each participant swished thirty milliliters of brandy, at approximately 40% alcohol by
volume, for two minutes before expectorating. The participants then provided three breath samples
at intervals of four minutes; if a participant continued to provide a positive BAC reading, then
breath tests were administered every two minutes. For the test involving dentures but no denture
adhesive, participants were instructed to keep the dentures loose in their mouths. For the test
involving dentures with denture adhesive, the adhesive was applied per manufacturer instructions
and given at least one minute for the adhesive to set prior to dosing.

As per the data referenced in the Article, the mean time for BAC to return to zero was
thirteen minutes for no dentures or denture adhesives, fourteen minutes for dentures with no
denture adhesives, and fifteen minutes for dentures with denture adhesives. Only two subjects
showed any residual mouth alcohol after twenty minutes, with the amount of alcohol being less

than 0.01 grams per 210 liters. One of those subjects was retested, as the subject had partial

 

7 Each participant was paid $30.00 for their participation
8 The participants were required to have a full upper denture, while some participants also had lower dentures and/or
retainer devices.

dentures that did not sit properly with the denture adhesive pad used during the study; removing
the pad from the lower partial denture eliminated the abnormal time to zero.

The study conditions were selected by the authors to represent a worst-case scenario of
residual mouth alcohol. The Article concluded as follows: “The use of dentures, either with or
without the concurrent use of denture adhesives, does not significantly affect mouth alcohol
retention time and contribute to [BAC] readings beyond twenty minutes.” lt Went on to state
“[d]entures need not be treated as foreign objects in the mouth and removed prior to conducting a
[BAC] test[.]” According to Ms. McCarthy, the Article used a small sample size. Ms. McCarthy
also stated the Article was the only scientific test, to her knowledge, on the effects of dentures in
relation to residual mouth alcohol. Ms. McCarthy did opine the Article contained valid and reliable
conclusions as to the lack of need to remove dentures prior to testing for breath alcohol.

Lastly, Ms. McCarthy discussed the standard operating procedures of both the Intoxilyzer
and the DSP. Ms. McCarthy reported CMI’s manufacturer recommendations for the Intoxilyzer
do not contain any reference to having subjects remove dentures prior to administering a breath
test. However, the DSP standard operating procedures for administering a breath test require
officers to ask a defendant whether the defendant wears dentures and, if so, to remove the dentures
prior to testing. Ms. McCarthy described this requirement as originating from an abundance of
caution and as an added safety measure for the reliability of the test, rather than due to some
scientific basis suggesting a need to remove dentures prior to testing. However, Ms. McCarthy
testified that the DSP had not performed or commissioned any research or studies that would

justify removing the requirement from its standard operating procedures

PARTIES’ CONTENTIONS

The Defendant argues the intoxilyzer test was administered in violation of the DSP
requirement of having a defendant remove dentures prior to administration of a breath test.9
Furthermore, the Defendant argues the presence of dentures renders the intoxilyzer results
scientifically unreliable. Therefore, the Defendant seeks suppression of the intoxilyzer results
Furthermore, during the hearing, the Defendant objected to the Court accepting Ms. McCarthy as
an expert on the subject of residual mouth alcohol and related matters The Defendant argued Ms.
McCarthy lacked adequate education, training, and experience in this specific field and, therefore,
lacked the requisite expertise to testify as an expert.

The State’s argument is threefold. First, the DSP standard operating procedure of having
a defendant remove his or her dentures prior to a breath test is an additional step that is not required
to establish the validity of the test results Second, the existing relevant case law focuses on
complying with manufacturer requirements _ requirements that do not include removal of
dentures Third, the study was scientifically valid and reliable, thereby negating any concern
regarding the reliability of the intoxilyzer results. Concerning Ms. McCarthy’s qualifications as
an expert, the State pointed to Ms. McCarthy’s extensive experience with breath alcohol testing,

education, and training, as well as her familiarity with the subject matter.

DISCUSSION
The subject matter of the instant Motion to Suppress is the admissibility of the intoxilyzer
results when the Officer failed to ask the Defendant to remove his dentures before the

administration of the test. The Court will first consider whether Ms. McCarthy may testify as an

 

9 The Court has accepted the Defendant was wearing dentures at the time of his arrest.

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expert, followed by a discussion of the merits of the Defendant’s arguments in favor of
suppression.
I. Requirements for Testifying as an Expert

Delaware Uniform Rule of Evidence 702 controls the admissibility of expert testimony,
while Daubert and its progeny provide guidance on whether a purported expert is suitable to testify
as such. “When considering the admissibility of expert testimony, the Court is to act as a
‘gatekeeper’ to determine whether the ‘expert's opinion [is] based upon proper factual foundation
and sound methodology.’ ”10 “The Court further has ‘broad latitude’ in making such rulings.”ll
As stated by our Supreme Court, this Court

must determine whether: (1) the witness is qualified as an expert by knowledge,

skill experience, training or education; (2) the evidence is relevant and reliable; (3)

the expert's opinion is based upon information reasonably relied upon by experts in

the particular field; (4) the expert testimony will assist the trier of fact to understand

the evidence or to determine a fact in issue; and (5) the expert testimony will not

create unfair prejudice or confuse or mislead the jury.12

Rule 702 provides, in relevant part, “a witness qualified as an expert . . . may testify . . . in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” The Superior Court has provided a
succinct summary of the appropriate considerations under Rule 702:

Addressing the “proper factual foundation” part of the analysis, . . . an expert's

opinion must be based on “facts” of the case rather than “suppositions.” The “sound

methodology” aspect of the test focuses upon the techniques used by the expert in

formulating his opinion. The reliability of the opinion is determined by inquiring

into such factors as: “(1) whether the technique or scientific knowledge has been

tested or can be tested; (2) whether the theory or technique has been subject to peer
review and publication; (3) the known or potential rate of error and the control

 

'° Hynson v. Dover Downs, Inc., 2015 WL 5168353, at *3 (Del. Super. Sept. 2, 2015) (internal citations omitted).
11 Russum v. IPM Development Partnership LLC, 2015 WL 2438599, at *2 (Del. Super. May 21, 2015) (intemal

citations omitted).
12 Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1253-54 (Del. 2011) (internal citations omitted).

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standards for the technique's operation; and (4) whether the technique has gained

general acceptance.” Importantly, the expert's method must be based in science and

not “subjective belief or speculation.” Courts are to review expert opinions to

ensure they are “derived from supportable facts.”13

Concerning the precise qualifications of an expert, Delaware courts have recognized that,
while “at times an expert may be qualified by criteria outside of his [or her] formal training or
designated specialty, [the Court] must scrutinize an expert’s qualifications with ‘due regard for the
specialization of modern science.’ ”14 Individuals have been rejected as experts when their
education, training, and experience does not align with the subject matter of the anticipated
testimony.15 The United States Supreme Court has emphasized the trial judge’s gatekeeping
function as requiring a judge to “make certain that an expert, Whether basing testimony upon
professional studies or experience, employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.”16

The Court recognizes while Ms. McCarthy lacks formal degrees in chemistry, her expertise
comes from professional studies and personal experience, The first factor requires the Court to
determine whether “the witness is qualified as an expert by knowledge, skill, experience, training
or education.” Formal education and degrees are not a definitive requirement to testify as an
expert. The Court must examine the totality of the purported expert’s qualifications to determine
if he or she is qualified by any combination of knowledge, skill, experience, training, or education.

The Court finds Ms. McCarthy has a significant and specialized background in the study

of breath alcohol and residual mouth alcohol. This background includes extensive training by

CMI, including training in excess of that which the DSP requires for Ms. McCarthy’s job

 

13 Arroyo v. Regal Builders, LLC, 2015 WL 6000464, at *2 (Del. Super. Sept. 29, 2015) (internal citations omitted).
14 Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 796 (Del. 2006) (internal citations omitted).

15 Spencer v. Wal-Mart Stores East, LP, 930 A.2d 881, 888-89 (Del. 2007).

16 Kumho Tire CO., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

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functions Ms. McCarthy has been a member of IACT for five years and has pursued continuing
education on the broader subject of alcohol testing.

Lastly, Ms. McCarthy proved to the Court’s satisfaction a degree of competence and
comfort with the subject matter matching or exceeding that which the Court would expect an expert
to possess Therefore, the Court accepts Ms. McCarthy as an expert in breath alcohol, residual
mouth alcohol, and related matters

II. Admissibility of the Intoxilyzer Results

Defendant argues the results of the intoxilyzer test should be suppressed because Trooper
Myers violated DSP standard operating procedures by failing to ask Defendant to remove his
dentures The State concedes the standard operating procedures in place for utilizing an intoxilyzer
machine require the officer to have the subject remove his or her dentures prior to testing and those
procedures were violated during the administration of the intoxilyzer test. However, the State
argues the standard operating procedure is merely an added, and unnecessary, precaution, and the
existing case law only requires the State to prove compliance with manufacturer procedures

At the close of the July 13 hearing, the State noted the Superior Court had recently decided
a motion to suppress in a similar case involving a defendant wearing dentures The Court
obtained17 and reviewed a transcript of the Superior Court decision in State v. Hayes.18 In Hayes,
before performing the intoxilyzer test, the arresting officer asked the Defendant whether he had
dentures and the Defendant responded in the affirmative. The officer then asked Defendant to take
the dentures out, but Defendant stated they were permanent. After being charged with a DUI, the
Defendant moved to suppress the results of the intoxilyzer test because the presence of dentures in

Defendant’ s mouth invalidates the test results The Court denied Defendant’ s motion. The holding

 

17 The transcript was received on September 14, 2017.
18 CR ID NO.Z 1609021474.

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of the Court was two-fold. First, the Court held that the officer followed procedure. Second, the
Court held that the failure to remove dentures may go to the weight of the evidence, but does not
go to the admissibility of the intoxilyzer test because studies refute the theory that dentures prolong
mouth alcohol retention.19 After the Court’s ruling on the Motion to Suppress, Defendant’s
counsel informed the Court that Defendant may actually have had nonpermanent dentures The
Court noted the officer followed standard operating procedure because he asked the Defendant to
remove his dentures20

The Delaware Supreme Court has held that “the admissibility of intoxilyzer test results
center on the State providing an adequate evidentiary foundation for the test result’s admission.”21
Following the manufacturer’s use requirements guarantees reliability and accuracy “that is the
foundational cornerstone to the admissibility of the results of a scientific test.”22 In Clawson, the
Supreme Court held that it was an error for the trial court to admit into evidence the results of an
intoxilyzer test after it was determined that the intoxilyzer manufacturer’s protocol was not
complied with by the State Police before administering the test.23 When a police officer performs
a scientific test, “any deviations from protocol threaten the test’s validity where the results
determine a central issue, i.e., a BAC above the legal limit, and it cannot be based upon unreliable

evidence.”24

 

19 The study that the Court in Hayes alludes to is the same study that Ms. McCarthy, who was also an expert witness
in Hayes, testified to in this instant case.

20 Hayes, CR ID No.: 1609021474 (citing Clawson v. State, 867 A.2d 187, 192-93 (Del. 2005)).

21 Clawson, 867 A.2d at 191.

22 Hunter v. State, 55 A.3d 360, 365-66 (Del. 2012).

23 Clawson, 867 A.2d at 191-92. In Clawson, the Court held that the State failed to lay an adequate evidentiary
foundation because it did not show that there was an uninterrupted twenty-minute observation period of the Defendant
prior to the testing. Id. at 192. The twenty-minute observation period was part of the manufacturer’s protocol and of
DSP standard operating procedures Ia'. at 191.

24 State v. Fountain, 2016 WL 4542741, at *3 (Del. Super. Aug. 30, 2016).

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Here, the IDR reflects that Trooper Myers administer the Intoxilyzer upon Defendant
Billings without first instructing Defendant to remove his dentures This violates DSP standard
operating procedures for administering the breathalyzer test. However, Ms. McCarthy testified
that this requirement originates from an abundance of caution and is not part of the manufacturer’s
recommended procedures Furthermore, Ms. McCarthy testified as to a study that refutes the
theory that dentures prolong mouth alcohol retention.

The State argues that because CMI does not require operators of its Intoxilyzer to have
subjects remove dentures prior to testing, it is not required for an officer to do so. The Court
agrees Delaware courts only require full compliance with a manufacturer’s recommendations to

t.25 There is no case law that indicates this requirement

ensure the reliability of the intoxilyzer tes
extends to DSP standard operating procedures Thus, Trooper Myers’s failure to ask Defendant

to remove the dentures does not warrant suppression of the Intoxilyzer test. As noted in Hayes,

the failure to remove the dentures will go to weight.

CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED this 19th day of J anuary 2018, that

Defendant’s Motion to Suppress is DENIED. The case will be set for trial.

 

cc: Diane Healy, J udicial Case Management Supervisor

 

25 See Hunter, 55 A.3d at 366; Clawson, 867 A.2d at 192.
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