Seth v. State

• Decision Date: 21 November 1990
• Docket Number: 1990,No. 203,203
• Citation: 592 A.2d 436
• Parties: Alen L. SETH, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 436

592 A.2d 436

Alen L. SETH, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 203, 1990

Supreme Court of Delaware.

Submitted: Nov. 21, 1990.

Decided: May 30, 1991.

Upon appeal from Superior Court. Affirmed.

Leo John Ramunno of Ramunno & Ramunno, Wilmington, for appellant.

Gary A. Myers, Deputy Atty. Gen., Dept. of Justice, Georgetown, for appellee.

Before CHRISTIE, C.J., HORSEY and WALSH, JJ.

HORSEY, Justice:

Alen L. Seth, Jr. appeals Superior Court's affirmance of his conviction in the Court of Common Pleas of Driving a Motor Vehicle While Under the Influence of Alcohol, 21 Del.C. § 4177. His appeal raises two issues. The first issue is whether the Attorney General is authorized under 29 Del.C. § 2505 to appoint a part-time prosecutor employed and compensated by a private law firm to prosecute criminal cases for the State, and if so, whether such practice violates the Delaware Lawyers' Rules of Professional Conduct. The second issue is whether the results of an intoxilyzer test were obtained in violation of Delaware's "implied consent" law, 21 Del.C., chapter 27, for failure of the arresting officer to read the statute to defendant or to fully inform defendant of his rights. On the first issue, we hold that the Attorney General, in creating the "Lend-A-Prosecutor" program, acted within the broad statutory power to act in the public interest. We further find, in the exercise of this Court's exclusive jurisdiction to regulate the practice of law in Delaware, that the "Lend-A-Prosecutor" program does not violate the Delaware Lawyers' Rules of Professional Conduct (hereinafter "the Rules"). On the second issue, we hold that under the Delaware statutory scheme, the failure of an arresting officer to inform defendant of the implied consent law and any right to refuse chemical testing provides no defense to the admissibility of the chemical test. Finding no merit in either of defendant's contentions, we affirm the conviction.

I

On the evening of July 12, 1989, a New Castle Police Department officer stopped Alen Seth when the officer observed Seth driving a Camaro, repeatedly drifting across a lane divider. As the officer approached the car, he detected an odor of alcohol and noticed that Seth's eyes were bloodshot. Seth told the officer that he was tired and had two beers prior to the stop. The officer then requested that Seth perform several field coordination tests, including walking heel to toe, touching the tip of the nose with a finger, and reciting the alphabet. The officer testified at trial that these routine tests were inadequately performed.

Consequently, the officer took Seth to the New Castle County Police Headquarters to obtain a breath sample to measure blood alcohol content. At the station, Seth requested an opportunity to speak to an attorney prior to taking the intoxilyzer test. The officer responded that "under Delaware Law [Seth] wasn't given an absolute right to speak to an attorney prior to taking the test. He was required by Delaware Law to submit to the test." Seth refused to take the test several times, and it is undisputed that the officer never read Seth the implied consent law. Seth testified that the officer asked, "Are you ready to take the test or do you want to go to jail?" The officer denied making the statement, but indicated that he gave Seth time to "think it over," and Seth relented and gave the breath sample after five to ten minutes. The test revealed a blood alcohol concentration of .19 percent.

Seth was tried in the Court of Common Pleas on September 5, 1989. The prosecutor on the day of Seth's trial was one in the first group of attorneys participating in a special Deputy Attorney General program. The so-called "Lend-A-Prosecutor" program was established by the Attorney General in cooperation with the law firm of Skadden, Arps, Slate, Meagher, and Flom ("Skadden, Arps"). Skadden, Arps allows its Delaware licensed attorneys to lend their services as prosecutors for the Department of Justice for periods of roughly two weeks. The attorneys are deputized by the Attorney General to prosecute criminal cases under supervision of the Department of Justice but, as "Special Deputy Attorneys General" ("SDAG's"), they continue to be paid by Skadden, Arps. During the period of their voluntary service, the SDAG's are required to devote their full time to their duties as Deputy Attorneys General, and are not permitted to do any substantial work for Skadden, Arps.

Seth moved to disqualify the prosecutor prior to trial, arguing that the Lend-A-Prosecutor program is impermissible in that the prosecutors are not full-time State employees compensated by the State. Seth further argued that the program had ethical defects in that the volunteer prosecutors sought to obtain trial experience, and not simply to "do justice." The Court of Common Pleas denied the disqualification motion, and the Superior Court affirmed this ruling.

During the trial, Seth objected to the introduction of the results of the intoxilyzer test on the basis that the arresting officer had not followed the implied consent law and had improperly ignored Seth's initial refusals to give a breath sample. The Court of Common Pleas ruled this evidence admissible, and the Superior Court upheld this ruling.

II

Seth maintains that the trial court erred in denying his motion to disqualify the prosecutor, a private attorney acting under the Lend-A-Prosecutor program. In support of his position that the program is "illegal," defendant relies In Re Ridgely, Del.Supr., 106 A.2d 527 (1954), in which this Court addressed the problems and potential conflicts created when a part-time public prosecutor engages in private practice. Defendant further contends that the program is prohibited by the Department of Justice Act, 29 Del.C., chapter 25. Specifically, defendant argues that 29 Del.C. § 2505 prohibits prosecutors from engaging in private practice and requires that prosecutors remain under the supervision and control of the Attorney General. Defendant maintains that these statutory requirements cannot be met where prosecutors are employed and compensated from private sources.

At trial, the Court of Common Pleas accepted the prosecutor as being a deputy designated by the Attorney General, and therefore denied defendant's motion to disqualify the prosecutor. On direct appeal, the Superior Court ruled that the broad language of 29 Del.C. § 2505 may be construed to impliedly authorize the Attorney General to appoint a prosecutor for a two-week period even though that prosecutor is engaged in private practice and compensated by the law firm. The Superior Court further ruled that a prosecuting attorney may engage in private practice, where not prohibited by statute, in the absence of an existing conflict between public duty and private practice. The Superior Court found no indication of such a conflict in the case before it.

The questions of whether the Attorney General had statutory authority to adopt the Lend-A-Prosecutor program and whether that program otherwise violates the Delaware Lawyer's Rules of Professional Conduct involve issues of law requiring the exercise of de novo review. In Re Appeal of Infotechnology, Inc., Del.Supr., 582 A.2d 215, 218 (1990); In Re Berl, Del.Supr., 540 A.2d 410, 413 (1988). We review these questions in the exercise of this Court's exclusive jurisdiction over the regulation of the Bar and the practice of law in Delaware. Infotechnology, 582 A.2d at 218; In Re Green, Del.Supr., 464 A.2d 881, 885 (1983). "[T]he interest of this State in matters pertaining to the admission and regulation of lawyers practicing before our courts is essential to the primary governmental function of administering justice, and in meeting our obligation to protect the public by assuring and maintaining high standards of conduct of persons admitted to this Bar." In Re Green, 464 A.2d at 885.

Before examining the authority of the Attorney General to establish the Lend-A-Prosecutor program pursuant to 29 Del.C., chapter 25, we briefly examine the nature of the office of Attorney General. The Attorney General is a constitutional officer vested with the broad authority to exercise numerous and varied powers. Absent legislative restriction, the Attorney General "may exercise all such power and authority as the public interests may from time to time require." Darling Apartment Co. v. Springer, Del.Supr., 22 A.2d 397, 403 (1941). The powers and duties of the chief law officer of the State can be modified by the General Assembly, which

can add to or subtract from the common law powers of the Attorney General.... In the absence of legislation the authority and the duty of the Attorney General to appear in Court for the State or its immediate agencies has, I think, been universally recognized. If this authority is to be lessened or changed in any manner it should be done by express legislative action.

Darling Apartment, 22 A.2d at 408 (Rodney, J., concurring). In the exercise of his official powers, the Attorney General has discretion in determining who shall be prosecuted and in what manner that prosecution shall take place. O'Neal v. State, Del.Supr. 247 A.2d 207, 209 (1968); State v. Dennington, Del.Super., 145 A.2d 80, 84 (1958). Given the broad authority of the Attorney General, we must determine whether the Lend-A-Prosecutor program contravenes any clear legislative proscription of 29 Del.C. § 2505. Cf. In Re Blue Hen Country Network, Inc., Del.Super., 314 A.2d 197, 200 (1973) (Attorney General's investigative powers are broad, but Attorney General's subpoena powers limited by statute).

In construing 29 Del.C., chapter 25, we note that when statutory language is both clear and consistent with other provisions of the same legislation and with legislative purpose and intent, a court must give effect to that intent because it is for the legislature, and not the courts, to...