IN THE COURT OF COMMON PLEAS F()R 'I`I~IE STATE OF DELAWARE
IN ANB FOR NEW CASTLE COUNTY

STATE OF DELAWARE,

Case No. 1212008999

DENISE R. MOORE

\_/\_/\_/\_/\_/\_/\_/\_/\_/

Defendant.

Submitted: April 16, 2014
Decided: june 30, 2014

Andrew Rahairn, Esquire
2055 Limestone Road

Allison J. Abessinio, Esquire
Deputy Attorney General

Delaware Departrnent of Justice Suite 211

820 N. French Street, 7“‘ Floor Wilmington, DE 19808
Wifmington, DE 19801 Attc)rneyfor Defendant

Ac‘torneyfor the Stat'e
DECISION AFTER TRIAL
INTRODUCTION

On Decernber 14, 2012, Denise R. Moore (hereinafter "Defendant") was charged with
Driving a Vehicle Under the Infiuence of Alcohol (hereinafter "DUI") in violation of 21 Del. C.
§ 4l77(a) and 2 Lighted Larnps Shall be Displayed, 1 on Each Side at the Front of Every Motor
Vehicie in viofation of 21 Del. C. § 4352(a). Defendant filed a motion to suppress evidence
obtained as a result of Defendant’s arrest. After a hearing, the Court found that probable cause
for Defendant’s arrest existed, and the case proceeded to trial. This is the Court’s decision in the

matter .

FACTUAL BACKGR()UND

The State’s only witness at trial was Corporal Michael Ripple (hereinafter "Corp.
Ripple") of the Delaware State Police. Corp, Ripple testified that on December 14, 2012, he was
on patrol near the intersection of Kirkwood Highway and Limestone Road in New Castle
County. Corp. Ripple parked his marked patrol vehicle in the parking lot of the Mill Creek
Shopping Center. At approximately 2145 a.m., Corp. Ripple observed two vehicles, one of
which had no headlights on, and which appeared to be following the other vehicle. Corp. Ripple
pulled out of the parking lot and followed the vehicle without headlights for approximately ’/4
mile, and then activated his emergency lights. The vehicle pulled over immediately and without
incident.l Corp, Ripple approached the vehicle, which was operated by Defendant, and
Defendant told him that her lights had failed while she was driving, which is why she was
following the other vehicle to ensure that she would arrive at her destination Corp. Ripple did
not personally check to see whether Defendant’s lights were inoperable, but he accepted
Defendant’s explanation as true.

Upon making contact with Defendant, Corp. Ripple detected a strong odor of alcohol
emanating from the passenger compartment, and he observed Defendant’s bloodshot, glassy
eyes. When Corp. Ripple asked if she had been drinking, Defendant responded that she had two
beers prior to driving and that she had been bartending that night. During this conversation,
Defendant did not slur her words, she was able to produce all requested documents quickly, and
she was cooperative

Corp. Ripple asked Defendant to perform some preliminary tests. Upon exiting her

vehicle, Defendant used her vehicle door for support Corp. Ripple also had Defendant perform

' Otlier than the inoperable lights, Corp. Ripple testified that he did not observe the Defendant drive
erratically or commit any traffic vioiations.

three NHTSA-approved field tests.z Following the completion of the field tests, Corp. Ripple
placed Defendant under arrest for DUI and transported her to Ti'oop 6, where Defendant
voluntarily submitted to an Intoxilyzer test.

The Court determined at the suppression hearing that Corp. Ripple had probable cause to
arrest Defeiidant for DUI. At trial, the State sought to enter into evidence the Intoxilyzer report
for Defendant through the testimony of Corp. Ripple. Defense counsel objected, arguing that
Ripple could not testify to the actual calibration process and to the contemporaneousness of the
testing and the signature. The Court concluded that it would reserve its decision to perform
further research on the issue. The Court noted that if Corp. Ripple is found to be a qualified
witness, then the Court will look at the lntoxilyzer report in its determination of the matter, but if
Corp. Ripple is not considered a qualified witness, the Court will exclude the lntoxilyzer report

from consideration.

DISCUSSION

ADMISSIBIL:TY or THE INTOXILYZER REsULTs

Under Delaware law, the results of an Intoxilyzer test may only be admitted if the State
can show that the machine was in proper working order on the date it was used on a defendant.3
To prove that the machine was working, the State may enter into evidence the calibration logs
for the specific Intoxilyzer used in a matter through the business records exception to the hearsay
rule, D.R.E. Rule 803(6). "To meet the exception requirement under the rule, the party which
proffers the evidence must show that it was: (l) prepared in the regular course of business; (2)

made at or near the time of the event; (3) trustworthy; and (4) testified to by custodian of the

2 Corp. Ripple administered the horizontal gaze iiystaginus (HGN), wall<~aiid-turn, and one-leg stand
tests. Defendant did not state to Corp. Ripple that she had any injuries that would prevent her from
performing the tests, nor did Defendant say she was cold at time, both issues that could have impacted the
results of the tests.

3 Stare v. Vickers, 2010 WL 2299001, at *3 (Del. Com. Pl. June 9, 2010).

3

record or other qualified person."4 The "other qualified person" may testify so long as he or she
"can attest that: (l) the declarant had knowledge to make the entries in the document; (2) that the
declarant’s recording of the statements were contemporaneous with his or her actions; (3) that
the declarant made the record in the regular course of business activity; and (4) that such records
were regularly kept."§ ""l`he witness ‘need only have knowledge of procedures under which the
records were created."’é Indeed, the witness does "not need to personally observe the state
chemist conduct a calibration of the lntoxilyzer machine in order to admit the calibration log into
evidence.’”

Corp. Ripple, although he had not personally witnessed a calibration performed by the
state chemist, Cynthia l\/IcCarthy (hereinafter "McCarthy") testified that she made the calibration
records in the regular course of business; that McCarthy signed the records at or near the time
she completed the calibration checks; and that she is trustworthy.s Corp. Ripple also noted that
he was aware that the state chemist ealibrates the Intoxilyzer machine at three separate levels-
0.00, 0.05, and 0.10, that the readings are printed out from the machine, and placed into the
calibration log books.

'1`0 show that he was an "other qualified witness"g who may testify to the aforementioned

factors, Corp. Ripple testified that the state chemist, as the individual trained to perform the

4 Ia'., citing Talfey v. State, 841 A.Zd 308 (Del. 2003).

5 Vickers, 2010 WL 2299001, at *3, citing Trawz`ck v. Stare, 845 A.Zd 505 (Del. 2004); Stcrte v. Boyer,
2006 WL 2666207 (Del. Com. Pl. Sept. 18, 2006).

6 Palontino v. State, 2011 WL 2552603, at *3 (Del. Super. Apr. 4, 2011), quoting U.S. v. Wables, 731
F.2d 440, 449 ('/'th Cii‘. 1984).

l Palomino, 2011 WL 2252603, at *3.

8 ln Delaware, there is a presumption that the source of the information is trustworthy "There is a well
established presumption that, in the absence of evidence to the contrary, those responsible for service to
the public will carry out their duties in a proper, careful, and prudent manner.” State v. McCoy, 2012 WL
1415698, at *5 (Del. Super. Feb. 21, 2012), quoting Jadah v. State, 234 A.2d 910, 911 (Del. 1967)).

9 "As stated in US v. Console {sic], an ‘other qualified witness’ is to be construed broadly." State v.
McCoy, 2012 WL 1415698, at *5 (citing US. v. Console, 13 F.Bd 641, 657 (3d Cir. 1993)).

4

calibrations, had first-hand knowledge of the numbers she entered into the calibration logs; that
the chemist made the records in the regular course of business approximately every 30-45 days;
that the calibration logs were regularly kept at the troops until they were taken to 'l`roop 2 for
testing; and that the chemist signed the logs contemporaneously with the completion of the
calibration checks. Corp. Ripple testified, after looking at the calibration log itself, that the state
chemist signed the log related to this matter thirty two minutes after she performed the
calibration checks on the Intoxilyzer machine used on Defendant.w In State v. Vi'ckers, the Court
accepted testimony as sufficient to meet the contemporaneous factor when there was testimony
that the calibration logs were signed fifty seven minutes after the chemist performed the

11 'l`he Court is therefore satisfied that Corp. Ripple’s testimony, for which he

calibration tests.
relied on the certification log itself, is sufficient to meet the contemporaneous requirement, and
also sufficient to consider him an "other qualified witness" to testify to the business records
exception to the hearsay rule.

ln McCoy v. Srate, the Supreme Court determined that an officer was familiar with the
procedures involved in creating the records, even though he had never observed a calibration.‘z
In Sfare v. McCoy, the Superior Court noted that the officer "was not familiar with the process of
calibrating the Intoxilyzer machine; ...was not familiar with how the lntoxilyzer machines are
calibrated generally; ...[had] not observed anyone perform a calibration on an lntoxilyzer
machine and; ...could not recall whether he observed a calibration at the DUI acaderny."m Corp.

Ripple did not have to personally observe a calibration of the Intoxilyzer in order to be

considered a qualified witness, but he only had to demonstrate some familiarity with the

m Corp. Ripple noted that he was familiar with the chemist’s signature, as lt was distributed to him at the
Police Academy.

" Vrcke»~s, 2010 wL 2299001, ar *5.

12 M'c€oy v. State, 2014 WL 135'7337, at *2 (Del. Supr. Apr. 3, 2014).

" stare ~,». Mccay, 2012 wL i4i569s, at *2.

procedure employed in creating the records.m Corp. Ripple testified that the chemist would put a
card into the machine, calibrate the machine to get the three readouts (0.00, 0.05, and 0.10), and
then staple the card to the calibration logs. This testimony is "sufficient knowledge of the
procedure by which the Intoxilyzer records were created,"l$ and therefore the Court will admit

the lntoxilyzer report generated for Defendant into evidence.

PROOF BEYOND A REASONABLE DOUBT 'I`HAT MS. MOORE WAS DRIVING UNDER THE
INFLUENCE oF ALConoL
Under 21 Del. C. § 4l77(a)(1), "[n]o person shall drive a vehicle [w]hen the person is
under the influence of alcohol." The Court looks to the totality of the circumstances when
determining whether the State has proven beyond a reasonable doubt that an individual was
driving under the inf`luence.lé The State must prove that the defendant was in control or driving
a vehicle while also under the influence of alcohol. w "”l`he evidence must show that the person
has consumed a sufficient amount of alcohol to cause the driver to be less able to exercise the
judgment and control that a reasonably careful person in full possession of his or her faculties

would exercise under like circumstances."lg

m An officer "must merely have knowledge of the record keeping system and not the calibration process
itself. Witnessiiig a calibration is one way to have knowledge of the record keeping system, but is not an
actual requirement under D.R.E. 803(6)." Icf. at *4.

‘5 rue-cay v. srare, 2014 WL 1357337, a *2.

16 Si‘ai‘e v. Snzallwood, 2012 WL 5869624 (Com. Pl. Nov. 9, 2012).

" rewa- v. sierra 626 A.zd 1350, 1355(1)@1. 1993).

18 State v. Mealy, 2010 WL 175623 (Com. Pl. Jan. 20, 2010) (quoting Lewi's v. Srate, 626 A.2d 1350,
1355 (Del. 1993)); see 21 Del. C. § 4l77'(c)(5) (stating, "‘While under the influence’ shall mean that the
person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily
have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due

care in the driving of a vehicle").

Corp. Ripple activated his emergency lights after observing the Defendant driving
without headlights Upon reaching Defendant’s vehicle, Corp. Ripple detected a strong odor of
alcohol and observed Defendant’s bloodshot and glassy eyes. Defendant admitted that she had
been drinking prior to driving. Defendant agreed to submit to field sobriety tests, which she
subsequently failed, causing Corp. Ripple to transport Defendant to Troop 6 for more testing.

The results of the Intoxilyzer show that Defendant’s BAC at the time of her test was
0.ll8, which was above the legal limit of 0.08. The State has therefore proven beyond a
reasonable doubt that Defendant was driving under the influence of alcohol.

PRooF BEYoNI) A Rl;AsoNABLE DouBT THAT Ms. Moolut FAILED 'ro HAvE Two Llc;lrrt:l)
HEAoLAMPs AT THE FR0NT oF HER VEHICLE

Under 21 Def. C. § 4352(a), "at least 2 lighted lamps shall be displayed, l on each side at
the front of every motor vehicle other than a motorcycle or motor-driven cycle, except when
such vehicle is parked subject to the regulations governing lights on parked vehicles." Corp.
Ripple testified that he initially pulled Defendant over because neither one of her headlights were
lit as she drove during the early morning, while it was dark outside. After Corp. Ripple reached
her vehicle, Defendant admitted to him that her lights were not working, and he accepted her
explanation without further inquiry. Corp. Ripple could not recall if Defendant’s rear lights were
working, but did note that her brake lights were functional.

The State has proven beyond a reasonable doubt that Defendant violated 21 Del. C. §

4352(a) by driving at night without functional headlights

