Submitted: January 8, 2014
Upon Appeal from the Court of Common.
John S. Malik, Esquire, Attorney for the Appellant.
Zachary Rosen, Esquire, Department of Justice, Attorney for the Appellee.
Before the Court is an appeal filed by Defendant Raul Zarco ("Zarco") from a decision of the Court of Common Pleas following a one-day bench trial on April 17, 2013. For the reasons set forth below, the decision of the Court of Common Pleas is AFFIRMED.
II. NATURE OF THE PROCEEDINGS
On October 7, 2010, Zarco was arrested for Driving under the Influence of Alcohol in violation of 21 Del. C. § 4177(a), Inattentive Driving in Violation of 21 Del. C. § 4176(b), Driving without a Valid License in violation of 21 Del. C. § 2701(a), and Failure to Possess Proof of Insurance in violation of 21 Del. C. § 2118(p). On March 2, 2011, Zarco pled not guilty to all charges. Before trial, the State entered a nolle prosequi on the Failure to Possess Proof of Insurance charge. After a one-day bench trial on April, 17, 2013, Zarco was found guilty of Driving Under the Influence and Driving without a Valid License, and not guilty of Inattentive Driving. Zarco timely filed this appeal. On appeal, Zarco argues that the trial court abused its discretion in admitting the Intoxilyzer test result into evidence and that the evidence adduced at trial was insufficient to support a finding that Zarco was in actual physical control of the vehicle in which the police found him.
On October 7, 2010, Corporal ("Cpl.") Conway of the Delaware State Police responded to a call that led him to Salem Church Road. Upon responding to Salem Church Road, Cpl. Conway found Zarco in the driver's seat of his vehicle, stopped in the right lane of traffic. Cpl. Conway smelled a "strong odor" of alcohol coming from Zarco. Although Cpl. Conway was unable to speak with Zarco (Zarco did not speak English), Cpl. Conway noticed that Zarco "had all the signs of somebody that had been intoxicated. He had bloodshot eyes, glassy eyes, appeared very tired, fatigued, very lethargic in his movements." Using a visual aid, Cpl. Conway asked Zarco for his license, registration, and valid proof of insurance, and Zarco was unable to produce them. Cpl. Conway saw empty bottles of Miller Genuine Draft in Zarco's vehicle. Cpl. Conway assisted Zarco out of the driver's seat and walked with him over to Cpl. Conway's patrol car. Cpl. Conway noticed on the way to the patrol car that Zarco "was moving very lethargic." Cpl. Conway, using hand gestures, asked Zarco whether he had been sleeping, and Zarco nodded his head in the affirmative. After observing Zarco for approximately fifteen minutes, Cpl. Conway administered a preliminary breathalyzer test ("PBT"). Cpl. Conway testified that the standard operating procedure for administrating a PBT test is to observe the subject for fifteen minutes. He also testified that the PBT was functioning properly, and the calibration log at Troop 6 indicated the same. Zarco failed the PBT test. At that point, Cpl. Conway arrested Zarco for suspicion of DUI, and transported him to Delaware State Police Troop 6.
At the time of Zarco's arrest, Cpl. Conway had made about 50 DUI arrests.Cpl. Conway is NHTSA certified and went through a six-month training regimen, one week of which was dedicated to DUI enforcement. He is certified to use an Intoxilyzer machine. The Intoxilyzer machine used to measure Zarco's breath alcohol concentration was found to be in proper working order.
Zarco performed the Intoxilyzer test at Delaware State Police Troop 6 at 22:40 hours (10:40 p.m.) Prior to administering the test to Zarco, Cpl. Conway observed him for a continuous 20 minute period, during which Zarco did not eat, smoke, drink, belch, or regurgitate. He started the 20 minute observation period at 2220 hours (10:20 p.m.) and the Intoxilyzer card was entered into the machine at 2240 hours (10:40 p.m.). Over Zarco's objection, the Intoxilyzer card was admitted into evidence. Zarco's BAC was determined to be .194. The trial court concluded that the documents established an uninterrupted observation period ...