Opinion
C.A. No. 01A-02-002
Date Submitted: June 19, 2001
Date of Decision: August 24, 2001
Edward C. Gill, Esquire, attorney for Defendant Below-Appellant;
James J. Hanley, Esquire, Department of Justice, attorney for Plaintiff Below-Appellee.
MEMORANDUM OPINION
This case presents an appeal from a decision of the Court of Common Pleas that affirmed the Department of Motor Vehicles' ("DMV") decision to revoke Robert Mooney's ("Mooney") license to drive. This Court concurs with the well-reasoned opinion of the Court of Common Pleas, and affirms its decision.
Statement of the Facts and Procedural History
On January 8, 2000, at approximately 3:45pm, Corporal Rebecca McKnatt ("McKnatt") of the Delaware State Police stopped Mooney on U.S. Route 113 after she observed him following another vehicle too closely and traveling on the shoulder of the road for some distance without making a turn. During the stop, McKnatt noticed a moderate odor of alcohol on Mooney's breath. Mooney admitted that he consumed one beer several hours earlier. McKnatt then proceeded to administer several field coordination tests to Mooney. McKnatt testified that Mooney failed to correctly state the alphabet from A-Z. She testified that he also failed the Horizontal Gaze Nystagmus ("HGN") test, the walk-and-turn test, the one leg stand, the finger-to-nose test, and the preliminary breath test. Chemical analysis showed Mooney's blood alcohol concentration was 0.12. Officer McKnatt testified that she took notes in her notebook regarding Mooney's performance on these tests, and transposed those notes into her report of the incident. When her notebook became full, she destroyed it.
At the hearing, Mooney admitted to consuming two beers several hours earlier.
On February 11, 2000, a flail hearing was held at the DMV to determine whether Mooney's driver's license would be revoked. The tape of this hearing apparently shut off for a portion of Mooney's testimony. The hearing officer found that probable cause existed for McKnatt to stop Mooney, and that the state had proved by a preponderance of the evidence that he was under the influence of alcohol in violation of 21 Del. C. § 4177. As a result of this ruling, Mooney's license was revoked for a period of three months.
21 Del. C. § 4177(a) reads in relevant part: (a) No person shall drive a vehicle: (1) When the person is under the influence of alcohol. . . . (4) When the person's alcohol concentration is .10 or more; or (5) When the person's alcohol concentration is, within 4 hours after the time of driving .10 or more. . . .
Mooney appealed the decision of the DMV to the Court of Common Pleas. The Court of Common Pleas affirmed the decision of the DMV. Mooney then timely appealed to this Court. He argues that McKnatt's destruction of her field notes violated his due process rights. He further argues that the DMV failed to record a portion of the hearing, thus leaving a hole in the record which prevents this Court from properly reviewing the matter. Mooney also claims that the DMV hearing officer improperly admitted McKnatt's testimony regarding the HGN test results and the intoxilyzer results without establishing the proper foundations for admission of such evidence.
Discussion
As set forth in Casey v. Delaware, [No number in original] Bradley, J. (Dec. 27, 2000), 2000 Del. Super. LEXIS 485 at 5-6:
When reviewing an appeal from the Court of Common Pleas, this Court assumes the same appeal posture as that of the Supreme Court. Baker v. Connell, Del. Supr., 488 A.2d 1303, 1309 (1985). In that role, a two-fold standard of review is employed. First, this Court may review any error of law de novo. Downs v. State, Del. Supr., 570 A.2d 1142 (1990). Second, the Superior Court is bound by findings of fact made by the lower court which are supported by the record and which are the product of a logical and deductive process. Id. at 1144.
Findings of fact made by the trial court must be supported by substantial evidence. Shahan v. Landing, Del. Supr., 643 A.2d 1357 (1994). Such evidence is that which a reasonable mind might accept to support a proposition. Oceanport v. Wilmington Stevedores, Del. Supr., 636 A.2d 892 (1994). Substantial evidence is more than a scintilla, but less than a preponderance. Olney v. Cooch, Del. Supr., 425 A.2d 610 (1981). If substantial evidence exists for a finding of fact, this Court must accept that ruling, as it must not make its own conclusions of fact, weigh evidence or make crediblity determinations. Johnson v. Chrysler, Del. Supr., 213 A.2d 64 (1965). That this Court may have decided an issue of fact differently is not enough to overturn the lower court's findings. The Court below must have abused its discretion in making such findings.
I. May this Court review the decision of the DMV when a portion of the hearing apparently was not recorded?
Mooney argues that because the DMV failed to properly record the entire hearing, the Court lacks a complete record for review. A notation in the transcript states, "The first side of tape shut off. Apparently, the remainder of Mr. Gill's questions were not answered." Mooney claims that this deficiency should result in a reversal of the decision of the DMV.
This Court may review the matter sub judice. The Court has the authority to reconstruct the record from the evidence presented. State v. Willey, Del. Super., Cr.A. Nos. 95-10-0325, Graves, J. (February 27, 1996); State v. Pusey, Cr.A. No. 89-11-0000A, Graves, J. (March 19, 1992). In this case, the Court can sufficiently decide the issues by looking at the 62 page transcript, the briefs of the parties, and the forms and letters presented to the DMV.
In Morris v. Unemployment Insurance Appeal Board, Del. Super. C.A. No. 86A-FE2, Chandler, J. (March 2, 1987) aff'd sub nom. Morris v. Southern Metals Processing, Del. Supr., 530 A.2d 673 (1987), the claimant argued that an incomplete tape recording of his hearing violated his due process rights. The Court held that a claimant must show that the defects in the record were prejudicial, and not simply inconsequential inaccuracies or omissions. Id. at 3. "The missing record must be vital to a proper review and there must be no practicable way of reconstruction or sufficient substitution before a new trial or new hearing can be granted." Id.
Mooney has not alleged what prejudice, if any, he has suffered as a result of the missing portion of tape. The record contains a substantial transcript with detailed cross-examination and voir dire of McKnatt. Furthermore, each issue that is contested by Mooney is addressed in the record. This Court finds that the Court of Common Pleas correctly held that the lost portion of testimony was not vital to the proper decision of the matter, and was merely cumulative of evidence currently present in the record. As a result, the incomplete transcript did not impede a fair decision of the merits of Mooney's arguments on appeal.
II. Did McKnatt's destruction of her field notes deprive Mooney of due process?
The Courts have consistently characterized driver's license revocation hearings as civil administration proceedings, and not as criminal proceedings. State v. Kamalski, Del. Super., 429 A.2d 1315, 1318-1319 (1981). However, Mooney was entitled to due process before his license was revoked. One who is suspected of violating the motor vehicle laws is entitled to proper notice and a hearing before he loses his license, and the suspected offender must be given an opportunity to be heard. Carter v. Dept. of Public Safety, Del. Super., 290 A.2d 652 (1972).
Mooney argues that there was a violation of due process when McKnatt destroyed the notes which detailed the results of his field coordination tests. He argues that McKnatt had a duty to preserve the notes, and cites Deberry v. State, Del. Supr., 457 A.2d 744 (1983) (" Deberry"), as authority for this proposition. Deberry places a burden on the prosecution to protect evidence in a criminal proceeding. This Court agrees with the finding of the Court of Common Pleas that because DMV hearings are civil proceedings, Deberry is inapplicable to the instant matter.
McKnatt testified that she transposed her field notes onto the alcoholic influence report. This report was presented at the hearing, and McKnatt was thoroughly cross-examined on the details of Mooney's performance on the field coordination tests. Furthermore, Mooney made no objection to McKnatt's testimony based on the absence of the notes, and as a result, he cannot now raise the issue for the first time on appeal. Gregory v. State, Del. Supr., 616 A.2d 1198, 1200 (1992). Mooney has not suffered prejudice from the absence of the notes. Any doubts as to the results of the field coordination tests were explored during Mooney's cross-examination of McKnatt. Consequently, this Court finds that the Court of Common Pleas was correct in holding that the absence of McKnatt's field notes did not deprive Mooney of due process.
III. Did the hearing officer improperly admit evidence of a HGN test without the proper foundation first being laid?
Mooney argues that the results of the HGN test should not have been considered by the hearing officer because the proper foundation was not laid for its admission into evidence. He cites Ruthard v. State, Del. Super., 680 A.2d 349 (1996) (" Ruthard"), and Zimmerman v. State, Del. Supr., 693 A.2d 311 (1997) (" Zimmerman"), as support for his argument that the State must prove a proper foundation through evidence from an expert with specialized knowledge and training in HGN and its underlying principles before the results of the test may be admitted.
This Court affirms the reasoning of the Court of Common Pleas regarding this issue:
[Mooney's] contention is incorrect. HGN is admissible for determining probable cause. State v. Ruthard, Del. Super., 680 A.2d 349, 362 (1996). A less stringent evidentiary determination applies to a probable cause determination. State v. Baldwin, Del. Super., Cr.A. No. K94-11-0016, Terry, J. (May 12, 1995). Although expert testimony is required for the admission of the HGN test at trial, such testimony is not necessary to establish probable cause. State v. Ruthard, supra.
In the instant case, [McKnatt] presented her certificate for administering the HGN tests and she testified concerning the administration of such a test to [Mooney]. The requisite foundation was established for the introduction of such evidence and the hearing officer did not err in admitting HGN evidence for the purpose of determining probable cause.Mooney v. Shahan, Del. CCP, C.A. No. 00-02-090, Trader, J. (February 9, 2001) at 4-5.
IV. Did the hearing officer err when he did not require McKnatt to reveal the underlying basis for her opinion that Mooney's permanent false tooth would not effect the intoxilyzer reading?
Mooney argues that the hearing officer should not have allowed McKnatt to testify regarding her opinion that his false tooth would not skew the intoxilyzer results. He maintains that this testimony was expert testimony, and thus McKnatt was required to provide the facts and data upon which she based her opinion. Citing Fensterer v. State, Del. Supr., 509 A.2d 1106 (1986) (" Fensterer"), Mooney further contends that McKnatt's failure to provide this information renders her testimony inadmissible.
This Court upholds the finding of the Court of Common Pleas that McKnatt's testimony was admissible. In Fensterer, the Court held that an expert must establish the facts and data upon which his opinion is based before the opinion may be admitted into evidence. McKnatt testified at the hearing that it was her understanding, based on information given to her at the police academy, that a permanently implanted false tooth would not skew intoxilyzer results. Administrative hearings are not constrained by the rigid evidentiary rules which govern jury trials, but should hear all evidence which could conceivably throw light on the controversy. Ridings v. Unemployment Ins. Appeals Bd., Del. Super., 407 A.2d 238, 240 (1979). Furthermore, hearsay evidence is admissible at such hearings. Barnett v. Division of Motor Vehicles, Del. Super., 514 A.2d 1145 (1986). McKnatt was not testifying as an expert, but was merely relating what had been taught to her at the police academy.
As a result, this Court finds that the Court of Common Pleas correctly ruled that McKnatt's testimony was admissible, and, taken together with the results of the field coordination tests, provided a sufficient basis for the hearing officer to find by a preponderance of the evidence that Mooney was operating a vehicle while under the influence of alcohol.
Conclusion
This Court affirms the decision of the Court of Common Pleas which upheld the findings of the DMV hearing officer. Administrative hearings are not subject to the same strict evidentiary requirements that must be observed at a jury trial. Substantial evidence was presented to the hearing officer to support his findings, and no legal errors have been established. Consequently, this Court affirms the decision of the Court of Common Pleas.
IT IS SO ORDERED.