State v. Hannon

STATE OF DELAWARE, v. JOHN M. HANNON, Defendant.

Cr.A. No. 1412007625

COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Submitted: December 3, 2015

January 19, 2016

Rebecca Song, Esquire

Office of the Attorney General

820 North French Street

Wilmington, DE 19801

Attorney for the State of Delaware

James M. Stiller, Jr., Esquire

Schwartz & Schwartz

1140 South State Street

Dover, DE 19901

Attorney for Defendant

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION IN LIMINE

On December 12, 2014, following a police investigation of a two-car motor vehicle accident, Defendant John M. Harmon ("Harmon") was arrested for Driving Under the Influence ("DUI") in violation of 21 Del. C. § 4177(a)(1).¹ On April 28, 2015, Harmon noticed the present Motion in Limine (the "Motion"), challenging the admissibility of the results of a blood test performed on Harmon. Defendant asserts that the results are "relevant and admissible only if the sample of breath or blood is taken within four hours of driving."²

On December 3, 2015, the Court held a hearing on the Motion. During the hearing, Harmon argued that the language of 21 Del. C. § 4177(g) is unconstitutionally vague, and that allowing the State to admit into evidence the results of a blood test taken more than four hours after a defendant is allegedly known to have driven a vehicle while under the influence of alcohol violates a defendant's due process rights and contradicts the prohibitory language of 21 Del. C. §§ 4177(a)(5) and (g). At the conclusion of the hearing, the Court reserved decision.³

Harmon's constitutional arguments notwithstanding, a Motion in Limine is distinguishable from a Motion to Suppress in that the latter is "grounded in constitutional right."⁴ Therefore, the Court will only address Harmon's arguments with respect to the admissibility of the blood test as it relates to the Delaware Rules of Evidence ("D.R.E.") and the DUI statute.⁵ This is the Court's Decision on Hannon's Motion in Limine.

FACTS

On December 12, 2014, Trooper A. Johnson ("Trooper Johnson") of Troop 6 of the Delaware State Police was dispatched to a reported motor vehicle accident in the vicinity of the intersection of Limestone and Paper Mill Roads in New Castle County. Upon arrival, Trooper Johnson made contact with Hannon, who informed Trooper Johnson that the driver of a second vehicle drove onto the right shoulder of the road, and that when the second driver returned to the right-hand lane, his vehicle clipped the front end of Hannon's vehicle. During his initialinteraction with Hannon, Trooper Johnson detected an odor of alcohol coming from Harmon's vehicle.

After clearing the accident scene, Trooper Johnson began investigating Hannon for a suspected DUI. As part of the investigation, Hannon performed and failed various standardized field sobriety tests. Trooper Johnson also administered a portable breath test, which indicated the presence of alcohol, at which point Trooper Johnson arrested Hannon for suspicion of DUI. Initially, Hannon consented to a blood draw, but later withdrew his consent. After Hannon withdrew his consent, Trooper Johnson acquired a warrant so that he could obtain a blood sample from Hannon. Ultimately, Trooper Johnson obtained a blood sample four hours and thirty-nine minutes after Hannon had driven his vehicle.

LEGAL STANDARD

Pursuant to D.R.E. 401, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."⁶ "All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State."⁷

A. Delaware's DUI Statute

Pursuant to Section 4177(g) of Title 21 of the Delaware Code, in prosecutions for a violation of section 4177(a):

[E]vidence establishing the presence and concentration of alcohol or drugs in the person's blood . . . shall be relevant and admissible. Such evidence may include the results from tests of samples of the person's blood . . . taken within 4 hours after the time of driving or at some later time.⁸

In part, Section 4177(a) states that no person shall drive a vehicle:⁹

(1) When the person is under the influence of alcohol; [or]

(5) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more[.] . . . [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 .08 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.¹⁰

Section 4177(a)(5) provides that proof of a BAC of .08 or greater within four hours of driving is sufficient evidence to establish that the driver was guilty of a DUI. This provision is commonly referred to as a DUI per se provision. In contrast, section 4177(a)(1) allows the State to pursue a DUI conviction on evidence other than a BAC of .08 or greater within four hours of driving. This is commonly referenced as a DUI general impairment provision.

Since Hannon has been charged only with violating section 4177(a)(1) for general impairment, the sole issue before the Court is whether the language of section 4177(g)—when considered in conjunction with DUI per se section 4177(a)(5)'s language—prohibits the admission into evidence, to prove general impairment, the results of a blood test obtained outside the statutorily-created four-hour window. This issue is largely one of first impression; therefore, the Court will look to other jurisdictions with similar statutes for guidance.¹¹

B. Foreign Jurisdictions 'DUI Case Law

Pursuant to North Dakota's DUI statute, a person "may not drive or be in actual physical control of any vehicle"¹² if: (a) that person has a .08 BAC within two hours of driving (the "North Dakota DUI per se statute"); or (b) "that person is under the influence of intoxicatingliquor" (the "North Dakota general impairment statute").¹³ Courts in North Dakota have consistently permitted the use of blood tests taken beyond the two-hour window set forth in North Dakota's DUI per se statute as evidence to prove a violation of North Dakota's general impairment statute.¹⁴

In City of Grand Forks v. Soli, a defendant appealed his DUI conviction for violation of North Dakota's general impairment statute, arguing that the trial court erred by admitting into evidence, in contravention of the applicable DUI per se statute's two-hour rule, the results of a blood test taken more than two hours after the defendant drove.¹⁵ The defendant contended that N.D. Cent. Code Ann. § 39-20-07(5) (the "North Dakota fair administration statute"), which conditions chemical test admissibility on the prosecution demonstrating that chemical tests were "properly obtained" and "fairly administered," impliedly incorporates into its "fairly administered" criterion a requirement of strict compliance with the two-hour rule.¹⁶ The defendant reasoned that since the North Dakota DUI per se statute imposed a two-hour rule, the North Dakota fair administration statute adopts that rule and incorporates it into North Dakota's general impairment statute.¹⁷ The Supreme Court of North Dakota disagreed, and affirmed the conviction, holding that the test results were admissible.¹⁸ Although the test was inadmissible to prove a violation of the North Dakota DUI per se statute, the court found that the test results "may be sufficient evidence for the trier of fact to convict a defendant for violating [the NorthDakota general impairment statute]."¹⁹ Furthermore, the court decided that it "will not incorporate a time limit that the Legislature has not chosen to require."²⁰

Similarly, in North Dakota v. Miller, in an appeal from a general impairment conviction, the Supreme Court of North Dakota deemed the results of a blood test taken approximately nine hours after a defendant drove his vehicle to be relevant and admissible.²¹ The court affirmed the general impairment conviction, echoing its reasoning in Soli; the court noted that although inadmissible to prove a violation of the North Dakota DUI per se statute, a blood test taken later than the two hour time period after which a defendant drove still may be used "to convict a defendant for violating [the North Dakota general impairment statute]."²²

Generally, in assessing whether a delay in chemical testing was reasonable, courts will look to the causes of the delay.²³ In Montana v. Hala, a defendant who appealed his DUI conviction argued that a blood draw conducted over eight hours after the act of driving was not in accord with a statutorily imposed reasonableness requirement.²⁴ The Montana DUI statute provided that chemical test results will give rise to certain presumptions so long as a chemical test is "taken within a reasonable time after the alleged act."²⁵ The Supreme Court of Montana held that a blood test, taken approximately eight hours after a defendant allegedly drove his vehicle under the influence of alcohol, was administered within a reasonable time and therefore was admissible.²⁶ In making this determination, the court considered it significant that the circumstances surrounding the accident (and not the investigating officer) precipitated the nine-hour delay.²⁷ Other courts have also looked to specific facts of the accident or DUI investigation when determining whether chemical test results are admissible.²⁸ Indeed, courts have often held that the results of chemical tests administered outside a statutorily mandated timeframe are nonetheless admissible, albeit as evidence to be given diminished weight proportionate to the degree of delay.²⁹

After a diligent search of case law from foreign jurisdictions, this Court was unable to locate an instance where, because of delay alone, a court has...