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Davis v. State

Supreme Court of Delaware

January 23, 2019

WILLIE DAVIS, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: December 12, 2018

          Court Below-Superior Court of the State of Delaware Cr. ID. S1704010756

          Before STRINE, Chief Justice; VAUGHN and TRAYNOR, Justices.

          ORDER

          GARY F. TRAYNOR JUSTICE.

         This 23rd day of January 2019, after careful consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) Willie Davis was driving southbound on Sussex Highway in the early hours of April 15, 2017 when Seaford Police Department officer Michael Short observed Davis repeatedly crossing over the center line. Short pulled Davis over and arrested him for driving under the influence and making an improper lane change after he failed several field sobriety tests and refused others.

         (2) Short secured a search warrant to obtain a blood sample from Davis and drove him to Nanticoke Memorial Hospital. At Nanticoke, phlebotomist Gina Dickenson drew Davis's blood using a collection kit provided by Short. The kit included, among other things, instructions, a needle, and a vacuum tube to collect the blood. To protect the blood sample from contamination, the phlebotomist should insert the needle into the patient before attaching the vacuum tube to the needle.[1]

         (3) At trial, Dickenson testified that she withdrew Davis's blood "in accordance with the kit's instructions," i.e., "using normal procedures."[2] According to Dickenson, she (i) applied a tourniquet, (ii) looked for the best vein from which to draw blood, (iii) wiped down the area with iodine, (iv) dried the area with a gauze pad, (v) inserted the needle, (vi) drew Davis's blood, (vii) removed the tourniquet, and (viii) applied a bandage.[3] Davis's counsel's cross-examination of Dickenson was exceedingly brief and did not cover the sequence in which Dickenson inserted the needle and attached the vacuum tube.[4] After the cross-examination, Dickenson was excused and the trial was recessed until the following day.

         (4) When the trial was reconvened on the following day, the State called Delaware State Police Crime Laboratory analyst Whitney Smith, who testified that she examined Davis's blood sample and concluded that it was properly drawn and mixed and was neither tainted nor contaminated by other means.[5] Smith conducted a headspace gas chromatograph of the blood sample and issued a Certificate of Analysis and a Blood Alcohol Report ("BAC Certificate and Report") indicating that Davis's blood alcohol content at the time of his blood draw was 0.19% w/v.[6]

         (5) When the State attempted to admit Smith's BAC Certificate and Report into evidence, Davis objected, citing State v. Fountain. Davis claimed that the State had failed to lay a proper foundation for Smith's reports because Dickenson had not explicitly testified that she inserted the needle in his arm before she attached the vacuum tube.[7] The Superior Court then held a brief recess to allow the State to read Fountain and to contact Dickenson to recall her as a witness.[8]

         (6) Immediately after reconvening, however, the court decided to overrule Davis's objection and admit the BAC Certificate and Report without hearing further argument or testimony.[9]

         (7) Davis argues that Superior Court should not have admitted the BAC Certificate and Report because State failed to properly establish a foundation under Fountain. As Davis reads it, Fountain requires a phlebotomist to specifically testify that they inserted "the needle in the person's arm prior to puncturing the stopper on the [vacuum] tube."[10] We disagree.

         (8) In Clawson v. State, [11] we discussed the requirements for admitting BAC evidence gathered by machine. In Clawson, we stated that "the admissibility of intoxilyzer test results center on the State providing an adequate evidentiary foundation for the test result's admission."[12] We held that a "bright line" rule applied to compliance with manufacturer instructions when administering such tests, noting that such a standard gives the "benefit of [] clear guidance."[13]

         (9) In Fountain, the Superior Court ultimately suppressed the State's BAC evidence because the Fountain phlebotomist testified that, in contravention of proper procedure, she put the vacuum container on the needle before the needle was in the defendant's arm.[14] The Superior Court found that doing so would "degrade the vacuum prematurely [and] also compromise the tube's sterility."[15]Fountain held that the State is required to show, "by a preponderance [of the evidence, ] that the needle was first placed in Defendant's arm before the stopper on the ...


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