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McCoy v. State

Superior Court of Delaware

November 6, 2013

ERIN M. MCCOY, Defendant Below, Appellant
v.
STATE OF DELAWARE, Respondent.

Date Submitted: August 16, 2013

On Appeal from the Court of Common Pleas.

Louis B. Ferrara, Esq., Ferrara & Haley, Wilmington, Delaware, 19806. Attorney for Appellant.

Sean P. Lugg, Esq., Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for Respondent

ORDER

Calvin L. Scott, Jr., Judge

Introduction

Appellant Erin M. McCoy ("McCoy"), through counsel, appeals her conviction for violation of 21 Del. C. § 4177(a) from the Court of Common Pleas. McCoy argues that the court improperly admitted the results of an intoxilyzer test into evidence because the State failed to establish an uninterrupted twenty minute observation period, as required by Clawson v. State, 867 A.2d 187 (Del. 2005). The Court has reviewed the parties' submissions.[1] For the following reasons, the decision of the Court of Common Pleas is AFFIRMED.

Background

On September 13, 2009, at about 1:13 a.m., Officer Jerold M. Huber ("Officer Huber") observed McCoy cross the center line of the highway twice while driving on Philadelphia Pike in Wilmington. Officer Huber initiated a traffic stop and Field Sobriety Tests were eventually performed. Thereafter, McCoy was transported to Delaware State Police Troop 1, where she consented to an intoxilyzer test which resulted in a reading above the legal limit. Consequently, McCoy was arrested for driving under the influence of alcohol in violation of 21 Del. C. § 4177(a) and for Driving in the Wrong Direction in violation of 21 Del. C. § 4126(a)(3).

On January 12, 2010, McCoy filed a Motion to Suppress based on a lack of Reasonable Articulable Suspicion and Probable Cause in the Court of Common Pleas. After the court denied the motion, the State filed a motion in limine based on the admissibility of the intoxilyzer calibration sheets. The court ruled that that Officer Huber was not an "otherwise qualified witness" for the admission of the sheets as required by the business records exception, D.R. E. 803(6). The court then dismissed the information after the State certified that the evidence was essential to the prosecution of its case. Upon the State's appeal, this Court reversed and remanded the case for abuse of discretion.

When the trial resumed on May 17, 2012, the State provided a photocopy of the intoxilyzer card bearing the test results to Officer Huber before he began testifying.[2] The card contained handwritten notations showing that the twenty minute observation time began at 2:06 a.m. The card also contained a computer generated time of 2:30 a.m. for the first air blank, internal calibration tests, and when McCoy blew into the machine.[3] During direct examination, the following exchange took place:

Q. And what time was this card entered?
A. It was entered into the machine at 0230 hours.
Q. And what time was the defendant's test ...

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