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State v. Diorio

Court of Common Pleas of Delaware, New Castle

November 18, 2013


Date Submitted: October 28, 2013

Zachary Rosen, Esquire Deputy Attorney General Attorney for the State

Thomas A. Foley, Esquire Attorney for Defendant


Alfred Fraczkowski, Associate Judge [33]


Defendant, Melissa A. DiOrio, was charged with five offenses under the Motor Vehicle Code when operating a vehicle in New Castle County, Delaware, on August 20, 2011: driving under the influence of alcohol, 21 Del. C. § 4177(a)(1); speeding, 21 Del. C. § 4169(b); following a vehicle too closely, 21 Del. C. § 4123(a); making an improper lane change, 21 Del. C. §4122(1); and turning without proper signal, 21 Del. C. §4155(a). Defendant filed a motion to suppress evidence seized in a blood draw. After a hearing, the State did not contest suppression of the results of a blood draw. The State and Defendant then stipulated that the record of the suppression hearing would be a trial of the issues before the Court. The parties submitted written arguments, and this is the Court's decision in the matter.

On August 20, 2011, at approximately 9:00 pm, Delaware State Trooper Yeldell (hereinafter "Yeldell") was driving northbound on Shipley Road in a marked police car when he observed the Defendant, Melissa DiOrio (hereinafter "DiOrio"), allegedly speeding in the opposite direction.[1] Yeldell performed a U-turn and began driving behind Ms. DiOrio. During the time he was following Ms. DiOrio, Yeldell observed the following traffic violations: speeding, following too closely, improper lane change, and failure to use a turn signal when changing lanes.[2] After Yeldell activated his lights, Ms. DiOrio pulled over and parked her vehicle in the middle of a parking lot. Upon making contact with Ms. DiOrio, Yeldell noted a strong smell of alcohol emanating from her breath, and observed her bloodshot eyes.[3] Yeldell asked Ms. DiOrio for her license, registration, and insurance card. Prior to providing only her driver's license, Ms. DiOrio paused, stared at Yeldell for a period of time, and stated that she was not speeding.[4] Yeldell asked Ms. DiOrio if she had been drinking, to which she initially replied no, then stated later that she had consumed a vodka and lemonade "earlier" that day.[5]Yeldell requested that Ms. DiOrio recite the alphabet from E to P. Ms. DiOrio responded with "E E F G H L M O."[6] According to Yeldell, Ms. DiOrio did not complete the finger dexterity test. Next, Yeldell asked Ms. DiOrio to exit her vehicle. Upon exiting, Ms. DiOrio placed her left hand upon the door of the vehicle, and kept it there as she walked to the rear of the vehicle.[7] Trooper Yeldell testified that during his interaction with Ms. Yeldell, she was insulting and combative, and used profanity.[8]

Trooper Yeldell administered three NHTSA tests. The first was the Horizontal Gaze Nystagmus test (hereinafter "HGN"). According to Yeldell's testimony, Ms. DiOrio exhibited four of the six clues for that test.[9] Next, Ms. DiOrio performed the walk and turn test, during which she did not kiss her heel to her toe during each step, but she did maintain a two- to three-inch gap with each step. Yeldell testified that Ms. DiOrio did step off the line[10] for steps one through three, but had no additional problems with the test. Ms. DiOrio exhibited four out of eight clues for that test.[11] Finally, Yeldell administered the one-leg stand test. Ms. DiOrio placed her foot down after the count of three, and exhibited four out of four clues.[12] Yeldell testified that DiOrio did maintain her balance and kept her arms to her side while he instructed her on each test.[13]

Following the administration of these tests, Yeldell asked Ms. DiOrio to undergo a portable breathalyzer test (hereinafter "PBT"), which she failed.[14] As a result, Yeldell took Ms. DiOrio to Troop 1 for further testing. At the station, Ms. DiOrio refused the intoxilyzer test and Yeldell called a phlebotomist to perform a blood draw on Ms. DiOrio. As the phlebotomist prepared to perform the test, Ms. DiOrio became combative and verbally abusive. As a result, three troopers held her down to prevent harm to the phlebotomist.

On June 6, 2013, the Court held a suppression hearing, as Ms. DiOrio challenged the results of the blood draw performed on August 20, 2011. On July 5, 2013, the State advised the Court that it no longer contested the suppression of the blood test results. Accordingly, this case involves only a question of impairment.

Trial was scheduled for August 29, 2013. In lieu of further testimony, the Defense and State stipulated that the record of the suppression hearing would constitute the record of the trial. Defendant tacitly admitted that the record showed no defense to the four charges other than the driving under the influence charge.

Decision was reserved and the parties submitted arguments on the following two issues:

1. Whether or not the results of the Horizontal Gaze Nystagmus should be admitted as part of the trial record.
2. Whether or not the State proved beyond a reasonable doubt that Ms. DiOrio was driving under ...

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