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Failure To Signal Under The Influence

The defendants were issued motor vehicle citations on November 29, 2000 for the offenses of Failing to Signal, in violation of 21 Del. C. § 4176; and Operating a Motor Vehicle While the Influence of Alcohol, in violation of 21 Del. C. § 4177(a).

Trooper of the Delaware State Police testified he stopped the vehicle driven by defendant because he failed to signal before changing lanes.

After the stop, he detected an odor of alcohol and decided to administer field coordination tests. A total of six tests were administered.

As a result of the defendant's performance on these tests, he had probable cause to take the defendant into custody and require him to submit to an intoxilizer test.

The defendant was taken to Troop 6 and the test was administered at 0:47 hours. The defendant was arrested at 0218 hours.

The sole issue before the Court at the conclusion of the evidentiary phase involves the question regarding the reliability of the certification documents admitted as State's Exhibit 2 and 3.

The defense moves to exclude the results of the intoxilizer reading on the basis that the machine certification documents refer to the testing machine as an intoxilizer 5000EN.

In addition, the test result documents also identifies the machine as an intoxilizer 5000 EN.

The defense therefore argues that the machine is unreliable because the "EN" designation changes the reliability of the machine.

As a result of this questioned reliability, the defense argues the results must be excluded.

The State and the defense were given an opportunity to submit in writing any evidence which bears upon the reliability of the testing and whether there is significant difference between 5000 EN and a 5000 intoxilizer machine.

This is the Court's decision after written submission.

The State introduced and the Court admitted into evidence copies of the "CMI Intoxilizer Model 5000 EN Certification tests."

These documents admitted as State's Exhibit # 2 and # 3 contain the testing dates of the machine.

State's Exhibit # 2 indicates that the machine was tested on December 7, 2000.

On that date, David X, the State's Forensic Analytical Chemist certified the machine was working properly and accurately.

State's Exhibit # 3 indicates the machine was tested on January 5, 2001 and was similarly certified as working properly and accurately.

To reach the conclusion set forth in the two State's exhibits, X tested the machine by using simulated stock solutions.

On both occasions, the test results were within the target values of plus or minus five percent.

Thus, X certifies the machine was functioning properly before the test of defendant was administered and after the test was administered.

The defense does not challenge the testing or the procedure.

He argues that the case law which approved the use of the intoxilizer 5000 as a reliable method for breath testing to measure alcohol blood content does not apply to a machine designed as an intoxilizer "5000EN".

The State in its written response relies upon a letter opinion of the Superior Court in State v. Workman, C.A. 00050228, Graves, J. (July 12, 2001).

In that case, the defense attacked the reliability of the intoxilizer test on the basis that the use of one sample or a single breath test was unreliable and that a two-breath test system should be adopted.

In rejecting the challenge, the Court stated "the State's system and present protocol produced reliable and accurate results, and furthermore, there was no due process violations in having the trier-of-fact consider a test reading produced by the present practice."

The documents relied upon by the State as Exhibits # 2 and # 3 indicate the machine used to measure the defendant's blood alcohol content was functioning properly on both dates when tested.

The individual performing the test has been previously held to be qualified to certify these test results. There is nothing in the record nor has their been any testimony to suggest the "EN" designation on the machine changes its operation or test reliability.

The mere fact that there is such a designation is not sufficient for me to conclude that the test result is unreliable. Therefore, the defense's motion to exclude the intoxilizer test is denied.

At the conclusion of the evidentiary phase, I indicated I would only admit the test if I found there was no material issue of reliability regarding the "EN" designation.

Because I conclude such does not in and of itself affect the test reliability, the results are admissible.

The intoxilizer blood content test reading of the defendant was .17. Under the provisions of 21 Del. C. § 4177, a person is guilty if his alcohol blood concentration is .10 or more.

Accordingly, defendant is adjudged "Guilty" of both offenses.

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