Summary
finding PBT test results admissible to determine probable cause
Summary of this case from State v. RebarchakOpinion
I.D. No. 0002014089
Date Submitted: April 26, 2001
Date Decided: May 4, 2001
On Appeal from the Court of Common Pleas. Affirmed. On Counsel's Motion to Withdraw as Counsel. Moot.
Katluyn van Amerongen, Assistant Public Defender, Wilmington, Delaware, Attorney for Appellant.
Valerie A. Hall, Deputy Attorney General, Wilmington, Delaware, Attorney for the State.
ORDER
This 4th day of May, 2001, upon consideration of the motion filed by the Appellant in this case and the record, it appears that:
(1) On August 24, 2000, the Court of Common Pleas convicted Defendant, Melvin H. Blanchard, of Driving Under the Influence of Alcohol after a non-jury trial. The court sentenced Blanchard on the same date.
(2) Blanchard's counsel has now filed an appeal and a motion to withdraw pursuant to Supreme Court Rule 26(c), incorporated by Superior Court Criminal Rule 39(c). Blanchard's counsel asserts that, based upon a conscientious examination of the record and the law, the appeal is wholly without merit. Blanchard's counsel states that she informed Blanchard of the provisions of Rule 26(c) by mailing to him on January 12, 2001 a copy of the motion to withdraw, a copy of the appellate brief and trial transcript, and a letter explaining the Rule 26(c) brief with a request that Blanchard reply in writing to counsel within thirty days concerning any points he wished the Court to consider on appeal. Blanchard's counsel avers that Blanchard did not respond to her request.
(3) The State has responded that, in the absence of any issues presented for the Court's consideration, the judgment of the Court of Common Pleas should be affirmed without further proceedings.
(4) In considering a motion to withdraw as counsel and an accompanying brief under Rule 26(c), the Court must make two determinations. First, the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal. The Court must also conduct its own review of the record to determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation. Leacock v. State, Del. Supr., 690 A.2d 926, 927-28 (1996) (citing Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 783, 744 (1967)).
(5) Blanchard's counsel submitted the following issues on appeal: first, whether Officer Trudeau had probable cause to arrest Blanchard for DUT, and second, whether the admission of the portable breath test results were improper. At trial, the court concluded that the police had probable cause to arrest Blanchard for DUI based upon the fact that there was an accident, the odor of alcohol on Blanchard's breath, Blanchard's glassy, watery eyes, Blanchard's admission to Officer Trudeau that he had been drinking, and the results of the portable breath test. The court also concluded that the Blanchard had failed to present evidence to show that the portable breath test had been administered incorrectly so that the results were admissible.
(6) This Court has reviewed the record carefully and finds that the decisions of the Court of Common Pleas are without error and that Blanchard's appeal is devoid of any arguably appealable issue. The Court is also satisfied that Blanchard's counsel has made a conscientious effort to examine the record and law and has properly determined that Blanchard could not raise a meritorious claim in this appeal.
Therefore, the Court hereby AFFIRMS the judgment of the Court of Common Pleas. The Motion to Withdraw As Counsel is therefore MOOT.
IT IS SO ORDERED.