Opinion
I.D. 0011015591
Submitted: May 8, 2002
Decided: May 30, 2002
On the State's Motion to Preclude Defendant from Requiring the Presence of the State Forensic Chemist
Pursuant to 21 Del. C. § 4177. Granted.
William L. George, Jr., Deputy Attorney General, Wilmington, Delaware, Attorney for the State.
Joseph A. Hurley, Wilmington, Delaware, Attorney for the Defendant.
MEMORANDUM OPINION
On September 11, 2000, Defendant, Christopher Grenier, struck and killed a three year-old child with his vehicle. It was determined that Defendant's blood alcohol content was .146 when tested after the accident. Subsequently, the State indicted Defendant on charges of Vehicular Homicide Second Degree and Driving Under the Influence of Alcohol.
After several reschedulings due to attorney unavailability, the Court set a trial date of May 2, 2002. On April 4, 2002, defense counsel contacted the State by telephone to ask whether the State intended to call as a trial witness the forensic chemist who had performed the blood alcohol analysis on Defendant. The State then informed defense counsel that the forensic chemist responsible for the blood analysis was no longer employed by the Medical Examiner's Office and may be out of state.
On April 22, 2002, the State filed a Memorandum of Law with the Court asking that the Court preclude Defendant from requiring the presence of the State forensic chemist pursuant to 21 Del. C. § 4177(h)(4). On April 24, 2002, the Court held a conference to consider the defendant's request and the State's motion. The Court asked the parties to submit additional memoranda on the issue. The Court also rescheduled the trial date indefinitely pending the outcome of the State's motion. This is the Court's decision on the State's motion
21 Del. C. § 4177(h)(4) provides, in pertinent part:
In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least 15 days prior to the trial, require the presence of the Forensic Toxicologist, Forensic Chemist, State Police Forensic Analytical Chemist, or any person necessary to establish the chain of custody as a witness in the proceeding.
At the time of the filing of the State's April 22, 2002 memorandum of law, the State pointed out that Defendant had not made a written demand on the State to require the presence of the forensic chemist as required by 21 Del. C. § 4177(h)(4). Defendant has attached to his memorandum a copy of a letter to the State dated May 6, 2002 making such a request.
Defendant's letter states:
This will notify [the State] of the election of my client, pursuant to 21 Del. C. § 4177(h)(4) to demand the presence of the toxicologist who reached a conclusion as to the blood alcohol content of the defendant's blood in the case at hand.
The sole issue pending before the Court, pursuant to the State's motion, is whether the State is compelled to secure the presence of the forensic chemist who performed the blood alcohol analysis on Defendant. The State argues that it is not required to do so except as required pursuant to § 4177(h)(4) to establish chain of custody. The State argues that Defendant waived his right to require the presence of the forensic chemist by failing to file a timely written demand with the State prior to the final rescheduling of the trial date due to the pendency of this motion. The State points out that Defendant made no written demand to the State before the first three reschedulings of the case and asserts that the State relied to its detriment that the forensic chemist would not be needed or required to appear.
The State also argues that, if the Court finds that Defendant made a timely written demand pursuant to § 4177(h)(4), the Defendant should be precluded from cross-examining the forensic chemist in order to obtain testimony regarding extrapolation of the blood analysis and the forensic chemist's opinion as to Defendant's blood alcohol content at the time of the accident. The State contends that such testimony would be irrelevant and outside the scope of cross examination.
Defendant argues that, notwithstanding the pertinent provisions of 21 Del. C. § 4177 governing admissibility of evidence in the context of a prosecution for Driving Under the Influence, evidence of Defendant's blood alcohol content at the time of the accident is material and relevant to the proceedings and admissible at trial for prosecution of Vehicular Homicide Second Degree. Defendant notes that the State is required to prove, in order to convict Defendant of Vehicular Homicide Second Degree, that Defendant acted negligently.
Defendant contends that Defendant's blood alcohol content at the time of the accident would be relevant evidence of Defendant's negligence or lack thereof, requiring testimony extrapolating the blood alcohol content to the time of the accident. Defendant also argues that he would be allowed, under the rules of evidence, to question the forensic chemist upon cross-examination about Defendant's blood alcohol content at the time of the accident and that such questions would not be outside the scope of cross-examination.
Finally, Defendant argues that the State is required to introduce the blood alcohol content evidence through the forensic chemist who conducted the analysis for purposes of proving the charge of Vehicular Homicide Second Degree. Defendant argues that the portions of 21 Del. C. § 4177 which allow such evidence to be submitted through a written report without the forensic chemist's testimony apply only to a prosecution for Driving Under the Influence. Defendant contends that, for purposes of proving Vehicular Homicide Second Degree, such a report would constitute inadmissible hearsay evidence.
21 Del. C. § 4177(h)(1) provides, in pertinent part:
For the purpose of introducing evidence of a person's alcohol concentration pursuant to this section, a report signed by the Forensic Toxicologist, Forensic Chemist or State Police Forensic Analytical Chemist who performed the test or tests as to its nature is prima facie evidence, without the necessity of the Forensic Toxicologist, Forensic Chemist or State Police Forensic Analytical Chemist personally appearing in court. . . .
Defendant has been charged with Vehicular Homicide Second Degree. Eleven Del. C. § 630(a)(2) sets forth the element of the relevant portion of the statute under which Defendant is charged:
While in the course of driving or operating a motor vehicle, under the influence of alcohol or drugs, as defined by § 21 Del. C. § 4177 of Title 21, the person's negligent driving or operation of said vehicle causes the death of another person.
As noted above, Defendant is also charged with Driving Under the Influence of Alcohol pursuant to 21 Del. C. § 4177.
Although Defendant is correct in stating that the two charges must be considered and proved separately, proof of Vehicular Homicide Second Degree under § 632(a)(2) requires proof of two elements: negligent driving or operation of a vehicle causing the death of another person and driving or operating a vehicle under the influence of alcohol or drugs. The relevant statute specifies that the latter element is defined by 21 Del. C. § 4177.
The Court finds that, given the language quoted above, proof of driving under the influence of alcohol as an element of Vehicular Homicide Second Degree is governed by 21 Del. C. § 4177, including the portions of the statute setting forth the admissibility of evidence. As quoted above, § 4177(h)(1) provides that evidence of a person's blood alcohol concentration may be provided by introduction of a report signed by the forensic chemist who conducted the test without the necessity of the forensic chemist appearing in court. Therefore, Defendant's argument that the report itself would constitute impermissible hearsay evidence is without merit.
Defendant is correct that § 4177(h)(4) provides an exception to § 4177(h)(1) where the defendant makes a written demand upon the State at least 15 days prior to trial to require the presence of the forensic chemist or toxicologist at trial. However, the exception is limited specifically to establish the chain of custody of the blood alcohol evidence. Defendant has never indicated that he seeks to compel the presence of the forensic chemist involved in his case to establish chain of custody. Defendant admits that his purpose for seeking the presence of the State forensic chemist is to elicit testimony regarding Defendant's blood alcohol content at the time of the accident. The Court finds that such a goal is not contemplated by 21 Del. C. § 4177(h)(4).
Also, the language of 4177 precludes such extrapolation for purposes of proving a charge of Driving Under the Influence. Section 4177(g) provides that, for purposes of a conviction for driving under the influence 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." (Emphasis added). The statute provides that such evidence may include:
the results taken within 4 hours after the time of driving or at some later time. In any proceeding, the resulting alcohol or drug concentration reported 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 synopsis of the House Bill enacting amendments to § 4177 indicates the legislative intent behind this language to specifically preclude the testimony Defendant seeks to elicit on cross examination of the forensic chemist. HB 89 of the 138th General Assembly (1995), states, in part:
This law clearly states that BAC at the time of the sample is the controlling factor and law allows a prosecution to proceed without the need for expert testimony and without any attempt at retrograde extrapolation of the later test results to the earlier time of driving.
The Court finds that the State is required to procure the presence of a forensic chemist or toxicologist in one instance as provided by 21 Del. C. § 4177(h)(4) in order to establish the chain of custody of the blood evidence involved in proving a charge of Driving Under the Influence. Defendant has made it clear that his purpose for invoking the requirement of this provision is so that he can cross-examine the forensic chemist as set forth in his proffered questions quoted above. The Court finds that such cross-examination is not only outside the scope of the permitted direct examination of a forensic chemist or toxicologist called to the stand pursuant to 21 Del. C. § 4177(h)(4), but is specifically precluded by Section 4177. Therefore, the Court will not require the State to produce the forensic chemist involved in Defendant's blood alcohol analysis.
The Court notes Defendant's argument that the State will use the evidence of Defendant's intoxication in order to prove the second element of Vehicular Homicide Second Degree, negligent driving or operation of a vehicle. Indeed, extrapolation of Defendant's blood alcohol content to the time of the accident may be relevant at trial, depending on the evidence presented by the State. The Court reiterates that this ruling only provides that the State need not secure the presence of the forensic chemist involved in the analysis of Defendant's blood. If such testimony otherwise complies with the rules of evidence, Defendant is not precluded from securing expert testimony involving such extrapolation as set forth in Defendant's proffered questions or from calling an expert witness qualified to offer such an opinion during the presentation of his defense.
Therefore, for the foregoing reasons, the State's motion to preclude Defendant from requiring the presence of the State forensic chemist at trial pursuant to 21 Del. C. § 4177(h)(4) is hereby GRANTED.
IT IS SO ORDERED.