Summary
describing elements under 21 Del. C. § 4177—Delaware's DUI's per se alcohol content provision—with previous legal limit of .10
Summary of this case from Selby v. StateOpinion
ID. No. 0308006360.
Submitted: February 2, 2004.
Decided: May 26, 2004.
Upon Consideration of Defendant's Appeal From Decision of Court of Common Pleas
AFFIRMEDJoseph A. Hurley, Esq., Wilmington, Delaware. Attorney for Appellant.
Gregory Babowal, Esq., Department of Justice, Wilmington, Delaware. Attorney for Appellee.
OPINION
The defendant appeals his conviction for Driving Under the Influence after a bench trial in the Court of Common Pleas.
THE FACTS
On August 9, 2003, at approximately 5:00 a.m., Delaware State Police Trooper David M. Hanich responded to the scene of a one car accident at a Route 1 on or off-ramp in Dover, Delaware. The record appears to indicate that it was an on-ramp but is not entirely clear on that point. The vehicle, operated by the defendant, Frank V. Fiori, had come to rest in a wooded area near the ramp. Another officer, who had been in the process of transporting a prisoner northbound, was already there, holding the scene for Officer Hanich. It had rained the previous evening, but the roadway was dry when Officer Hanich arrived. The defendant informed the officer that at the time of the accident the roadway was wet, he lost control, and ran off the road. He further stated that he had been in Ruddertown, Dewey Beach at a restaurant/bar with friends and was driving home. Officer Hanich informed the defendant that he smelled an odor of an alcoholic beverage emitting from him. Initially the defendant stated that he had not been drinking but a beer spilled on him at the bar. After further questioning, he stated that he had been drinking four hours ago. After further questioning, he stated that he had been drinking two hours ago. The officer observed that Fiori's eyes were bloodshot, watery, and glassy. It appeared to the officer that the defendant was slurring his words.
At some point Trooper Hanich felt the hood of the defendant's car and determined that the engine was warm. The officer had the defendant perform field sobriety tests including the alphabet test, counting test, walk and turn, and one-legged stand He also administered the Horizontal Gaze Nystagmus test, which yielded six clues, and gave the defendant a portable breath test, which he failed. Following the performance of these tests, the defendant was taken into custody. An Intoxilyzer test administered at Troop 3 at 6:37 a.m. gave a reading of .122.
THE DEFENDANT'S CONTENTIONS
The defendant contends that (1) the trial court committed error by admitting the Intoxilyzer result into evidence because the State failed to establish that the defendant drove within four hours prior to the administration of the test and (2) absent the Intoxilyzer results, there was insufficient evidence for the trial court to find the defendant guilty beyond a reasonable doubt.
The State contends that the Intoxilyzer result was properly admitted. It also contends that, even if it was not properly admitted, the remaining evidence is sufficient to sustain the conviction.
STANDARD OF REVIEW
When addressing appeals from the Court of Common Pleas, the court sits as an intermediate appellate court. As such, its function is the same as that of the Supreme Court. The court's role is to "correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process." If substantial evidence exists for a finding of fact, this Court must accept that ruling, as it must not make its own factual conclusions, weigh evidence, or make credibility determinations. "In reaching its conclusions, the Superior Court may make findings of fact that contradict those of the trial judge only when the record below indicates that the trial judge's findings are `clearly wrong' and this Court `is convinced that a mistake has been made which, in justice, must be corrected." The Supreme Court has set forth the standard of review as follows:
State v. Richards, 1998 Del. Super. LEXIS 454.
Baker v. Connell, 488 A.2d 1303 (Del. 1985).
State v. Huss, 1993 Del. Super. LEXIS 481, at *2 citing Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).
Johnson v. Chrysler, 213 A.2d 64 (Del. 1965).
Bracy v. State, 1994 Del. Super. LEXIS 384 at * 4 ( citing State v. Cagle, 332 A.2d 140, 142-43 (Del. 1974).
An appeal from a decision of the Court of Common Pleas . . ., sitting without a jury, is upon both the law and the facts. In such appeal, the Superior Court has the authority to review the entire record and to make its own findings of fact in a proper case. However, in exercising that power of review, the Superior Court may not ignore the findings made by the Trial Judge. The Superior Court has the duty to review the sufficiency and to test the propriety of the findings below. If such findings are sufficiently supported by the record and are the product of an orderly and logical deductive process, the Superior Court must accept them, even though independently it might have reached opposite conclusions. The Superior Court is only free to make findings of fact that contradict those of the Trial Judge when the record reveals that the findings below are clearly wrong and the Appellate Judge is convinced that a mistake has been made which, in justice, must be corrected. Findings of fact will be approved upon review when such findings are based on the exercise of the Trial Judge's judicial discretion in accepting or rejecting "live" testimony. See Barks v. Herzberg, Del. Supr., 58 Del. 162, 206 A.2d 507 (1965). If there is sufficient evidence to support the findings of the Trial Judge, the Superior Court sitting in its appellate capacity must affirm, unless the findings are clearly wrong. (citation omitted).
State v. Cagle, 332 A.2d 140, 142-43 (Del. 1974).
DISCUSSION
21 Del. C. § 4177(a) sets forth five subsections under which a person may be guilty of driving under the influence. The information filed in this case alleges all five in the alternative. Although the Court of Common Pleas judge did not expressly state which subparagraph formed the basis for his decision, it is clear that the decision rested at least on subsection (a)(5), which reads as follows:
No person shall drive a vehicle: (5) When the person's alcohol concentration is, within 4 hours after the time of driving, .10 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person's alcohol concentration at the time of driving, if the person's alcohol concentration is, within 4 hours after the time of driving .10 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving.
The elements of the offense which the State must establish under this subsection are (1) defendant's driving; (2) a blood alcohol content of .10 or more within 4 hours after the time of driving; (3) based upon alcohol present in, or consumed by the defendant when he was driving.
The test result is relevant and admissible only if the sample of breath or blood tested is taken within four hours of driving. Compliance with the four hour limit is also an element of the offense under subsection (a)(5). Therefore, conceptually two questions are presented. The first is whether the trial judge should have admitted the Intoxilyzer result into evidence in the first place. If so, the second is whether the evidence is sufficient to establish that the test was administered within four hours of the defendant's driving as a matter of fact.
The admissibility of the test in this case is governed by Evidentiary Rule 104(b), which reads as follows:
Relevancy conditioned on fact. Whenever the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or in the court's discretion subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Since the preliminary question of fact for admissibility — whether the test was administered within four hours of driving — is also an element of the offense, the two questions merge into one: whether the evidence is sufficient to support the trial court's finding that the test was administered within four hours of the defendant's driving under the standard of review set forth above.
The trial court found that the evidence that the engine was still warm, the time of the reporting of the accident, and the admission by the defendant that he had been drinking two hours ago when he spoke with the officer, provided circumstantial evidence that the defendant was driving within four hours of the administration of the test.
The defendant argues that since the vehicle came to rest in a wooded area off a Route 1 ramp during early morning hours when traffic would have been light, the defendant's car may have been there a significant period of time before the accident was reported to the police. He also argues that the defendant's testimony was that the roadway was wet when the accident occurred, and Officer Hanich testified that it had rained the previous evening and that the roadway was dry by the time he arrived. He also argues that the record contains no evidence as to when the defendant left Dewey Beach. He also argues that the time of the investigating officer's arrival and the defendant's admission that he had consumed alcohol two hours ago have no contextual relationship with any other facts. Under these circumstances, the defendant argues, the evidence is insufficient to support a conclusion that the Intoxilyzer test was administered within four hours of driving.
The defendant cites three cases in support of his contention that the evidence is insufficient to support a finding that he drove his car within four hours prior to taking the Intoxilyzer test. Two are decisions by Court of Common Pleas' judges acting as triers of fact in non-jury trials. Both involved Driving Under the Influence arrests arising out of a one-car accident. In the first, State v. Morales, a state trooper was informed by an unidentified motorist that a car had left the roadway, skidded into a ditch, and overturned. The officer testified that he arrived at the scene just moments after the accident occurred, but after further questioning at trial stated that he believed it was no more than 40 to 45 minutes prior to his arrival, and then later that it was 15 minutes before his arrival. He also testified the defendant's car engine was warm and smoking when he arrived. When questioned at the scene, the defendant indicated he had two beers after the accident. A Shore Stop bag with seven cans of cold beer was found near the car. The defendant was taken to the troop, where after field tests, he was given a breath test which registered a reading in excess of .10. The case was tried on a different section of 21 Del. C. § 4177, (a)(4), which prohibits a person from driving a motor vehicle with a blood alcohol concentration of .10 or more at the time of driving. After noting that there was no direct testimony as to the time of the accident, and the defendant's testimony that he drank two beers after the accident, the trial court concluded that, based upon the facts of the case, the evidence failed to establish beyond a reasonable doubt that the defendant's blood alcohol level was in excess of the legal limit at the time of driving.
1999 WL 1847371 (Del. Com. Pl.).
The second Court of Common Pleas case cited is State v. Rohrbaugh. In that case the officer received a report of an accident at approximately 7:39 p.m. He arrived at the scene at approximately 7:45 p.m. The car in that case had struck a utility pole. The officer testified that he noticed the car engine was still warm and fluid was coming out of the engine. In cross-examination, however, the officer admitted that these observations were not recorded in his police report. The officer testified that he did not know when the accident took place, but that he arrived when the emergency personnel were still there. After the investigation at the scene, the officer suspected the defendant was Driving Under the Influence. A blood sample was taken which showed an alcohol concentration of .18. After noting that there was no direct evidence of the time of the defendant's driving, that the defendant had been given an intravenous injection before the blood sample was taken, and that the State was required to prove the alcohol content at the time of driving, the trial court concluded that the evidence failed to establish a violation of 21 Del. C. § 4177.
1999 WL 1847353 (Del. Com. Pl.).
Neither Morales nor Rorhbaugh is very helpful in deciding this case. They were not decided under the appellate standard of review which applies here. They were decisions of trial judges sitting as triers of fact. They acted within their discretion to conclude that the evidence did not establish guilt beyond a reasonable doubt. In addition, there are factual differences between those cases and this one. In Morales there was evidence that the defendant had been drinking after the accident. In Rorhbaugh there was evidence the defendant had received an injection into her blood before a blood sample was taken for testing. The trial court in those cases seemed to attach significant weight to the absence of direct evidence regarding the time that the defendant last drove. It may be permissible for a trier of fact, whether judge or jury, to do so in a particular case in its discretion, but it is also well established that a conviction may be based upon circumstantial evidence.
Cannon v. State, 1994 Del. LEXIS 48 (Del. 1994); Henry v. State, 298 A.2d 327, 330 (Del. 1972).
The third case relied upon by the defendant is Kane v. State. That case was a Superior Court decision on appeal from the Court of Common Pleas. In the trial court the defendant was convicted of Driving Under the Influence. The issue on appeal was whether the State had established at trial that an Intoxilyzer test, which registered .24, was given within four hours of when the defendant drove. The Superior Court held that the evidence did not establish that the test was given within four hours of driving and vacated the defendant's conviction. The facts, briefly, are that the defendant was driving in the area of Elsmere. An officer observed his driving and became suspicious that the defendant may be driving under the influence. The officer pulled him over, checked out the defendant's license and registration, and had him do some field tests. The officer transported the defendant to Delaware State Police Troop 6 where, after a 30 minute observation period which began at 12:55 a.m., he administered the Intoxilyzer test at 1:31 a.m.
1999 Del. Super. LEXIS 238.
Another issue in the case was whether the officer had probable cause to stop the defendant. Since the Superior Court vacated the defendant's conviction on the grounds the Intoxilyzer test was not given within four hours of driving, it did not address that issue.
The Superior Court vacated the conviction on the grounds that there was no "direct or circumstantiated" evidence that the Intoxilyzer test was administered within four hours of when the officer pulled the defendant over. The Court's apparent reasoning was that the officer failed to testify as to the time that he "began to observe the Appellant's driving." The brief facts set forth in the decision, however, do not seem to indicate that there was any unusual delay between the time that the officer pulled the defendant over and the time the test was given. While the burden of proving that a test is administered within four hours of driving is upon the State, the decision does not address why the trial court could not properly infer, circumstantially, from the progression of events, one after the other, that the cumulative total of time comprising the events was less than four hours beyond a reasonable doubt. For this reason, I am not persuaded that Kane v. State should be followed in this case.
In this case, the Intoxilyzer test was administered at 6:37 a.m. The State was required to establish, therefore, that the defendant drove after 2:37 a.m. There was evidence that after the officer arrived at the scene at approximately 5:00 a.m., and, before the officer administered field tests, the defendant admitted that he had been drinking "two hours ago." The trier of fact was entitled to accept this evidence as fact. Given these facts, it would logically seem to follow that either (1) the accident occurred after 3:00 a.m. or (2) if it occurred before 2:37 a.m., the defendant was drinking at the scene of the accident after it occurred. The evidence that the record does contain of the defendant's drinking points to drinking before the accident, not after. The defendant did not say at the scene that he had been drinking after the accident, and, if that were the case, one might reasonably expect that he would have said so. There was no mention in the record of any evidence of alcoholic beverage containers being found in the area of the accident scene. Based upon this circumstantial evidence and the fact that the engine was still warm, I find that the trial judge's finding that the Intoxilyzer test was administered within four hours of the defendant's driving is sufficiently supported by the record, is the product of a logical and orderly deductive process, and is not clearly wrong. As the judge of the credibility of the witnesses, the trial court was not obligated to accept at face value the defendant's testimony that the highway was wet when the accident occurred.
Since I find that the trial judge's finding that the Intoxilyzer test was administered within four hours of driving is supported by the evidence, I need not address the question of whether sufficient evidence of the defendant's guilt exists without the test.
Accordingly, the decision of the Court of Common Pleas is affirmed.