• Courts of Common Pleas
  • D66434

COURTS OF COMMON PLEAS

State v. Moon, DeFAX Case No. D66434 (C.P. New Castle July 9, 2014) Surles, J. (11 pages).

Counsel: Christina Kontis, Deputy Attorney General, attorney for State of Delaware; Louis Ferrara, attorney for defendant.

Admission of statistical data used in selection of sobriety checkpoint properly admitted through testimony of police officer who was involved in selection of checkpoint location. Defendant's motion to suppress evidence denied and defendant found guilty of driving under the influence.

Lieutenant Michael Wysock selected a location for a sobriety checkpoint based on a report compiled by a state statistician, based on ticket and crash data over a period of several years. The requested checkpoint was located at one of several grid locations that met state police guidelines. The checkpoint was approved and executed at the approved location.

At the location, a warning sign was posted, followed by a rumble strip, followed by a stop sign. The area was lighted and marked by cones with blinking lights. Officers at the checkpoint wore reflective vests.

Defendant was stopped at the checkpoint. Officer Haggarty identified himself and informed defendant as to why he was being stopped. He observed that defendant's eyes were bloodshot and glassy, and he noted a strong odor of alcohol. Defendant stated that he had consumed two or three shots of whisky but did not say when.

Defendant failed a counting test, an alphabet test, and field sobriety tests. Haggarty determined that defendant was impaired and moved him to another location for an intoxilyzer test. Defendant was charged with driving under the influence.

Defendant moved to suppress evidence, arguing specifically that testimony by Wysock regarding the selection of the checkpoint location was inadmissible under D.R.E. 902(11) because defendant did not receive adequate notice of the evidence the state intended to offer.

At trial, Haggarty's testimony did not provide an adequate foundation for admission of the intoxilyzer results. Accordingly, the prosecution proceeded on an impairment theory. The court of common pleas denied the suppression motion and determined that defendant was guilty of driving under the influence.

Regarding the use of the statistical data, defendant argued the state failed to provide adequate notice of intent, as required by Rule 902(11). However, the statistical data was admissible as a business record under Rule 803(6), through the testimony of Wysock, a qualified witness. Wysock testified he was familiar with the record-keeping system and the method by which the data was generated. His testimony demonstrated that the record was prepared in the regular course of business by the state statistician and that the reports were made on an annual basis contemporaneous to the data collection process.

Regarding impairment, the court observed that state was not required to prove defendant was drunk or intoxicated. State only had to establish his ability to drive safely was impaired.

State presented a plethora of factors demonstrating impairment, including: Moon's behavior in approaching—and nearly driving through—the checkpoint; his physical manifestations, including glassy bloodshot eyes and a strong odor of alcohol; his admission to consuming two or three shots of whisky and his failure on all the sobriety tests.

The court was not persuaded that defendant failed to slow down because he thought he was approaching a construction zone, that defendant's poor performance on memory tests was due to his Korean upbringing, or that his poor performance on the field sobriety tests was the result of miscommunication.

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