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State v. Billings

Court of Common Pleas of Delaware, Castle

January 19, 2018


          Submitted: July 13, 2017

          Erik Towne, Esquire Deputy Attorney General Attorney for the State of Delaware

          James M. Stiller, Jr., Esquire Schwartz & Schwartz Attorney for Defendant


          Carl C. Danberg, Judge

         The defendant, Jason Billings (hereinafter the "Defendant"), brings this motion to suppress evidence obtained in connection with a Driving Under the Influence ("DUI") investigation. The Defendant raised two grounds for suppression: 1) the investigating officer lacked probable cause to arrest the Defendant and 2) the officer failed to administer the intoxilyzer test in accordance with Delaware State Police (hereinafter "DSP") standard operating procedures and the instructions of the intoxilyzer machine's manufacturer.

         On March 7, 2017, a hearing was convened on the Motion. The Court heard testimony from Trooper Daniel Myers (hereinafter "Trooper Myers") of the DSP Troop 6. The Court issued a bench ruling and found there was sufficient probable cause to arrest the Defendant under suspicion of DUI. The Court then scheduled the balance of the Defendant's Motion to be heard at a later date. On July 13, 2017, a hearing was convened on the balance of the Motion to Suppress, at which time the Court heard testimony from Cynthia McCarthy (hereinafter "Ms. McCarthy"). During the hearing, the State informed the court that the legal issue presented had been addressed by a ruling of the Superior Court. At the conclusion of the hearing, the Court determined the Defendant's Motion to Suppress would be best addressed by a written opinion after transcript from the Superior Court case mentioned by the State has been obtained. This is the Final Decision and Order of the Court on the balance of Defendant's Motion to Suppress.


         During the first hearing, convened on March 7, 2017, the Court heard from Trooper Myers. Trooper Myers had been a member of the DSP for over a year and a half[1] and, at the time of the events, had been a part of around 20 DUI investigations. Trooper Myers stated he had DUI training at the DSP Academy, for which he received a certification.[2]

         The Court heard testimony about the events of May 8, 2016. On that date, Trooper Myers was on routine patrol when he received a call from Corporal Collins regarding a possible DUI near the intersection of Delaware Route 2 and Route 7, in front of Crossroads Restaurant. When he arrived at the scene, Trooper Myers saw a vehicle stopped at the roadway with an open driver's side door, a person sitting in the driver's seat, and a large puddle of vomit outside the driver's side door. Trooper Myers identified the Defendant as the person sitting in the driver's seat. Trooper Myers testified Defendant told him that he had just left the Bullseye Saloon where he had taken two shots. Trooper Myers also testified that Defendant had blood-shot, glassy eyes. Trooper Myers took the Defendant to the Crossroads parking lot where it would be safer to conduct a Field Sobriety Test. At the parking lot, Trooper Myers administered the following tests: the Nine-Step Walk and Turn Test; the One-Legged Stand Test; the Horizontal Gaze Nystagmus Test; and the Vertical Gaze Nystagmus Test.

         After performing the tests, Trooper Myers arrested Defendant on suspicion of DUI. Once inside the police cruiser, Trooper Myers administered a Portable Breathalyzer Test (hereinafter "PBT"). Defendant blew a 0.159% blood alcohol concentration (hereinafter "BAC") on the PBT. After performing the tests, Trooper Myers transported Defendant to Troop 6, where he would administer an Intoxilyzer 5000EN Breathalyzer Test (hereinafter "Intoxilyzer"). Trooper Myers testified that in the Impaired Driving Report (hereinafter "IDR") the block indicating Defendant was wearing dentures was checked, but that the block indicating Defendant removed his dentures was not checked.

         During the second hearing, on July 13, 2017, the Court heard from Ms. McCarthy, a forensic chemist employed by the DSP since 2009. Ms. McCarthy testified she oversees the State's breath alcohol program, with her primary duties involving maintaining the State's Intoxilyzer machines and training police officers on the use of the machine. Ms. McCarthy has certified approximately 900 officers while employed by the DSP.

         The Court heard testimony on Ms. McCarthy's qualifications and professional training. Ms. McCarthy received a Bachelor of Science in Biology from University of Pittsburgh. Ms. McCarthy's career history includes several positions as laboratory technologist, technician, and manager, as well as teaching positions in Delaware schools. Ms. McCarthy is a member of the International Association for Chemical Testing (hereinafter the "IACT"), and has attended numerous courses on continuing education. These courses include, inter alia, the Robert F. Borkenstein Course on Alcohol and Highway Safety: Testing, Research, and Litigation; the CMI Intoxilyzer Operation, Maintenance, and Calibration Course;[3] and the Quality Assurance for Forensic Alcohol Testing Programs Workshop, hosted by the IACT.

         On March 18, 2010, Ms. McCarthy received a Certificate of Completion and Competency on the Intoxilyzer from CMI, Inc. (hereinafter "CMI"). According to the Certificate, "CMI qualifies [Ms. McCarthy] to perform those covered maintenance procedures [and] instruct others on the operation of the Intoxilyzer [.]" Ms. McCarthy testified she is certified to perform routine maintenance on the Intoxilyzer. Ms. McCarthy's primary responsibility is in verifying each intoxilyzer machine remains calibrated and then certifying the continued calibration. Ms. McCarthy testified she performs this function approximately once every forty-five days. However, it is Delaware's policy to send the unit back to CMI to perform many repairs, including calibration.

         Ms. McCarthy also provided testimony on the basic principles underlying how the intoxilyzer functions, the effects of residual mouth alcohol on the intoxilyzer, the effects of dentures in retaining mouth alcohol, and related matters. The fundamental principle of breath alcohol detection involves the application of Henry's Law, which Ms. McCarthy described as a fundamental law providing a constant and known amount of gas dissipation within a closed system at a known temperature. The intoxilyzer detects gas particles contained within the subject's alveolar breath and applies a mathematical formula to calculate the corresponding BAC of the subject. According to Ms. McCarthy, this calculation is conservative, and it invariably reports the BAC as equal to or lower, and never higher, than the subject's actual BAC.

         Residual mouth alcohol, as described by Ms. McCarthy, is alcohol retained - but not absorbed - within the mouth of the subject. The presence of mouth alcohol increases the amount of alcohol detected by the intoxilyzer, potentially leading to a false positive or an erroneous reported BAC. The Intoxilyzer includes a slope detection device, which is capable of detecting mouth alcohol. When mouth alcohol is detected, the intoxilyzer reports the sample as invalid; the printout of the result contains "XXX" in place of a numerical BAC value. Ms. McCarthy testified the slope detector is not entirely reliable at detecting residual mouth alcohol. The requisite twenty-minute observation period[4] is intended to accommodate for this deficiency, as Ms. McCarthy testified mouth alcohol dissipates within nine to eleven minutes.

         Ms. McCarthy discussed an article titled "The Effect of Dentures and Denture Adhesives on Mouth Alcohol Retention" (hereinafter the "Article").[5] The Article was originally published in the July, 1992 volume of the Journal of Forensic Sciences, a peer-reviewed journal accepted within the scientific community of forensic chemists. The study discussed in the Article utilized twenty-four[6] participants described as "alcohol-free" and "denture-wearing, " with three tests performed on each participant across a span of approximately eight months. At each test, the participant would swish thirty milliliters of 80-proof brandy in his or her mouth for two minutes, without swallowing the brandy, and would then spit the brandy out. The participant would then be tested utilizing an intoxilyzer machine to determine how long it took the reading to return to negative for the presence of alcohol. The test was performed under three conditions: without dentures; with dentures but without denture adhesive; and with dentures and denture adhesive.

          According to the Article, participants were selected by referral from two of the authors, an article in the State Laboratory of Hygiene employee newsletter, and by word of mouth.[7] The participants supplied their own dentures, [8] while the authors provided fifteen different denture adhesives - comprised of powders, creams, liquids, and pads by various manufacturers - and assigned to specific participants. Some adhesives were only assigned to a single participant, and no single adhesive exceeded use by three participants. Prior to each session, the participants answered questions pertaining to their denture usage and were then familiarized with the test parameters. Prior to testing, each participant submitted to an intoxilyzer test to verify there was no prior alcohol content within the participant's system.

         Each participant swished thirty milliliters of brandy, at approximately 40% alcohol by volume, for two minutes before expectorating. The participants then provided three breath samples at intervals of four minutes; if a participant continued to provide a positive BAC reading, then breath tests were administered every two minutes. For the test involving dentures but no denture adhesive, participants were instructed to keep the dentures loose in their mouths. For the test involving dentures with denture adhesive, the adhesive was applied per manufacturer instructions and given at least one minute for the adhesive to set prior to dosing.

         As per the data referenced in the Article, the mean time for BAC to return to zero was thirteen minutes for no dentures or denture adhesives, fourteen minutes for dentures with no denture adhesives, and fifteen minutes for dentures with denture adhesives. Only two subjects showed any residual mouth alcohol after twenty minutes, with the amount of alcohol being less than 0.01 grams per 210 liters. One of those subjects was retested, as the subject had partial dentures that did not sit properly with the denture adhesive pad used during the study; removing the pad from the lower partial denture eliminated the abnormal time to zero.

         The study conditions were selected by the authors to represent a worst-case scenario of residual mouth alcohol. The Article concluded as follows: "The use of dentures, either with or without the concurrent use of denture adhesives, does not significantly affect mouth alcohol retention time and contribute to [BAC] readings beyond twenty minutes." It went on to state "[d]entures need not be treated as foreign objects in the mouth and removed prior to conducting a [BAC] test[.]" According to Ms. McCarthy, the Article used a small sample size. Ms. McCarthy also stated the Article was the only scientific test, to her knowledge, on the effects of dentures in relation to residual mouth alcohol. Ms. McCarthy did opine the Article contained valid and reliable conclusions as to the lack of need to remove dentures prior to testing for breath alcohol.

         Lastly, Ms. McCarthy discussed the standard operating procedures of both the Intoxilyzer and the DSP. Ms. McCarthy reported CMFs manufacturer recommendations for the Intoxilyzer do not contain any reference to having subjects remove dentures prior to administering a breath test. However, the DSP standard operating procedures for administering a breath test require officers to ask a defendant whether the defendant wears dentures and, if so, to remove the dentures prior to testing. Ms. McCarthy described this requirement as originating from an abundance of caution and as an added safety measure for the reliability of the test, rather than due to some scientific basis suggesting a need to remove dentures prior to ...

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