Presence of the State Chemist In Court
The applicable statute that governs these proceedings is 21 Del. C. 4177(h)(1), (2), (3) and (4), which provides as follows:
(h)(1) for the purpose of introducing evidence of a person's alcohol concentration pursuant to this section, a report signed by the Forensic Toxologist, 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 Toxologist, Forensic Chemist or State Police Forensic Analytical Chemist personally appearing in court:
a. That the blood delivered was properly tested under procedures approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, or the Delaware State Police Crime Laboratory;
b. That those procedures are legally reliable
c. That the blood was delivered by the officer or persons stated in the report; and
d. That the blood contained the alcohol therein stated;
(2) Any report introduced under paragraph (1) of this subsection must:
a. Identify the Forensic Toxologist, Forensic Chemist or State Police Forensic Analytical Chemist as an individual certified by the forensic Sciences Laboratory, Office of the Chief Medical Examiner, the Delaware State Police Crime Laboratory or any county or municipal police department employing scientific analysis of blood, as qualified under standards approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner or the Delaware State Police Crime Laboratory to analyze the blood;
b. State that the person made an analysis of the blood under the procedure approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner or the Delaware State Police Crime Laboratory; and
c. State that the blood, in that person's opinion, contains the resulting alcohol concentration within the meaning of this section.
Nothing in this subsection precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in the report entered pursuant to paragraphs (1) and (2) of this subsection.
(3) for purposes of establishing the chain of physical custody or control of evidence defined in this section which is necessary to admit such evidence in any proceeding, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery stated, without the necessity of a personal appearance in court by the person signing the statement, in accordance with the same procedures outlined in 4331(3) of Title 10.
(4) 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. the chain of custody or control of evidence defined in this section is established when there is evidence sufficient to eliminate any reasonable probability that such evidence has been tampered with, altered or misidentified. (Emphasis supplied)
(c) for purposes of subchapter III of Chapter 27 of this title, this section and 4177B of this title, the following definitions shall apply
(1) "Alcohol concentration of .10 or more" shall mean
a. An amount of alcohol in a sample of a person's blood equivalent to .10 or more grams of alcohol per hundred milliliters of blood; or
b. An amount of alcohol in a sample of a person's breath equivalent to .10 or more grams per two hundred ten liters of breath.
(2) "Chemical test" or "test" shall include any form or method of analysis of a person's blood, breath or urine for the purposes of determining alcohol concentration or the presence of drugs which is approved for use by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, the Delaware State Police Crime Laboratory, any state or federal law enforcement agency, or any hospital or medical laboratory. It shall not, however, include a preliminary screening test of breath performed in order to estimate the alcohol concentration of a person at the scene of a stop or other initial encounter between an officer and the person.
The Superior Court in State v. Robert D. Croce (1997) addressed whether a phlebotomist was a "person in the chain of custody" pursuant to 21 Del. C. 4177(h)(4) in a driving under the influence case when the chemical test administered was blood drawn by the State phlebotomist.
The issue in the instant case is whether the State Chemist is a person in the chain of custody as set forth in 21 Del. C. 4177(h)(4) as it presently exists, when blood is not withdrawn, but an Intoxilyzer 5000 is used for purposes of administering the chemical test. 21 Del. C. 4177(c)(2).