Opinion
C.A. No. 589, 2002.
Submitted: April 15, 2003.
Decided: May 16, 2003.
Court Below: Superior Court of the State of Delaware in and for Kent County Cr. ID. No. 0109006842
Before VEASEY, Chief Justice, BERGER, and STEELE, Justices.
Appeal dismissed.
Unpublished opinion is below.
GLEN S. REBARCHAK, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. C.A. No. 589, 2002. Supreme Court of Delaware. Submitted: April 15, 2003. Decided: May 16, 2003.
ORDER
This 16th day of May 2003, upon consideration of the briefs of the parties, it appears to the Court as follows:
1. Appellant, Glen S. Rebarchak, appeals his Superior Court jury conviction for driving under the influence in violation of the provisions of 21 Del. C. § 4177(a), and his felony sentence as a fourth offender under 21 Del. C. § 4177(d)(4). Rebarchak argues that the trial judge erred by precluding his argument regarding the margin of error of the Intoxilyzer 5000. Rebarchak also argues that the trial judge abused his discretion by failing to grant a mistrial when the police officer's testimony contradicted a pretrial ruling. We find no merit to Rebarchak's arguments and affirm.
2. The State filed a Motion in Limine to preclude the defense from arguing the margin of error of the Intoxilyzer 5000. The trial judge, after hearing argument, ruleD that "it would be improper to argue that the result of the alcohol concentration is within [an] acceptable margin of error . . . permitted by the statute, 4177(g), [and] that [therefore] the reading is inaccurate. That cannot be questioned."
Appendix to Appellant's Op. Br. at 21.
3. As rewritten in 1999, 21 Del. C. § 4177(g) states:
For purposes of a conviction premised upon subsection (a) of this section, or any proceeding pursuant to this Code in which an issue is whether a person was driving a vehicle while under the influence, evidence establishing the presence and concentration of alcohol or drugs in the person's blood, breath or urine shall be relevant and admissible. Such evidence may include the results from tests of samples of the person's blood, breath or urine taken within 4 hours after the time of driving or at some later time. In any proceeding, the resulting alcohol or drug concentration when a test, as defined in subsection (c)(2) of this section, is performed shall be deemed to be the actual alcohol or drug concentration in the person's blood breath or urine without regard to any margin of error or tolerance factor inherent in such tests.
The Delaware General Assembly added the last sentence of this statutory provision referring to "any margin of error or tolerance factor" when it amended the Delaware DUI statute in 1999.
72 Del. Laws, c. 36.
4. On February 27, 2002, the New Castle County Superior Court construed the 1999 amendments to the Delaware DUI statute and stated that "[t]he clear language of the statute also provides that laboratory test results measuring alcohol concentration in a person's blood, breath or urine `shall be deemed to be deemed to be the actual alcohol or drug concentration . . . without regard to any margin of error or tolerance factor inherent in such tests.'" In Disabatino, the defendant appealed her Court of Common Pleas DUI conviction to the Superior Court and argued that "because her BAC result was .10, and the Intoxilyzer 5000 had a five percent margin of error, her actual BAC could have been between .095 and .105. Therefore she reasoned, the State failed to prove beyond a reasonable doubt that her BAC was .10 or greater." The trial judge held that argument had no merit because 21 Del. C. § 4177 makes no allowance for a margin of error with the Intoxilyzer 5000 test.
Disabatino v. State, 808 A.2d 1216, 1223 (Del.Super. 2002), aff'd, 2002 WL 31546525 (Del.Supr.) (ORDER) (emphasis in original).
Id. at 1124.
Id.
5. We conclude that Disabatino v. State is a correct statement of the law.
21 Del. C. § 4177 precludes an argument that the Intoxilyzer 5000 has a margin of error that could create a reasonable doubt about the accuracy of a defendant's test result. Therefore, the trial judge correctly ruled that Rebarchak could not present a margin of error argument regardless of the accuracy of the breathalyzer.
4. The defense then moved before trial to preclude any reference by the State to the administration or result of the portable breath test given to the defendant. The trial judge granted the motion. Nevertheless, the prosecutor asked the officer if he conducted any field sobriety tests and the officer referred to the PBT in his response. The defense objected and requested a mistrial. The trial judge immediately instructed the jury to disregard any reference to the PBT. The defense renewed the request for a mistrial following a guilty verdict. The trial judge denied the request.
5. Under the four-part analysis of Taylor v. State, there is no manifest injustice resulting from this testimony. The officer did not state the result of the PBT and the trial judge immediately cautioned the jury to disregard the statement.
Taylor v. State, 690 A.2d 933, 935 (Del. 1997) (The first consideration is the nature, persistency, and frequency of the witness' outburst; the second consideration is whether the witness' outburst created a likelihood that the jury would be misled or prejudiced; the third factor to be considered is the closeness of the case; and the final consideration is the curative or mitigating action taken by the trial judge).
Zimmerman v. State, 628 A.2d 62, 66 (Del. 1993) (As a general rule, a curative instruction is usually sufficient to remedy any prejudice which might result from inadmissible evidence admitted through oversight).
Furthermore, any arguable error is harmless because there was sufficient evidence other than the incautiously solicited evidence of the PBT to establish the defendant's guilt.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.