State v. Abdallah, Case No. 0810023856 (Del.Gen.Sess. 11/6/2009), Case No. 0810023856.
| Decision Date | 06 November 2009 |
| Docket Number | Case No. 0810023856. |
| Parties | State of Delaware v. Nabil Abdallah |
| Court | Court of General Sessions of Delaware |
Barzalia Axelrod, Esquire, Deputy Attorney General, Office of the Attorney General, Wilmington, DE, Counsel for the State.
Timothy Terranova, Esquire, Vining Associates, Wilmington, DE, Counsel for Defendant.
Dear Counsel:
A bifurcated trial in the above captioned matter took place on Monday, July 13, 2009 and continued to Monday, November 2, 2009 in the Court of Common Pleas, New Castle County, State of Delaware. Following the receipt of documentary evidence and sworn testimony the Court reserved decision. This is the Court's Final Decision and Order.
The defendant Nabil Abdullah (the "defendant") was charged with one Count Driving Under the Influence by Information in violation of 21 Del.C. §4177(a) filed with the Clerk of the Court by the Attorney General.1
Ms. Diane Mooney ("Mooney"), a civilian fact witness for the State, testified at trial. Mooney was at the Speedy Gas Station on October 30, 2008 and recently got off work. Mooney stopped to get gas and fill up her motor vehicle and she observed the defendant's car pull up to the gas station and back his motor vehicle up towards her motor vehicle. Mooney felt her car "move up" and was pushed sideways and heard an impact to her motor vehicle. She came around and pulled in front of defendant and asked him, "Do you realize you hit me?" Mooney then observed the dents in her motor vehicle. She identified the defendant in the courtroom. Defendant then moved his motor vehicle in front of the pump and pumped his gas. She spoke with the defendant about the accident and testified he "kept repeating himself". The defendant allegedly asked her, "Wouldn't your insurance cover it?"
Mooney testified the accident occurred at approximately 4:30 p.m. It cost $700.50 to repair her motor vehicle. According to Mooney, she did not make any observations about alcohol from defendant's person, but she is "100 percent sure" the defendant was the person who struck her motor vehicle in the courtroom.
Mooney identified the defendant's motor vehicle as a green Toyota 4-Runner.
Trooper First Class Daniel A. DeFlaviis ("Trooper DeFlaviis") presented testimony on behalf of the State at trial. He is employed at Troop 6 of the Delaware State Police since December 2006. He has performed 30 DUI related investigations and normally has uniformed patrol duties including enforcement of traffic laws and criminal complaints. He was dispatched to the location of 1205 Capital Trail Road in New Castle County on the date set forth in the Information. He interviewed Mooney and reiterated much of her sworn testimony.
Trooper DeFlaviis also identified the defendant in the courtroom. When he spoke with the defendant, the defendant's eyes were "glassy and watery". He also observed while the defendant was in the gas station speaking to the attendant he had significant balancing issues and was "leaning on the counter". Defendant was embroiled in an argument over $10.00 in fuel costs with the attendant. Trooper DeFlaviis described the defendant's demeanor as "disoriented" and "he had a problem understanding the officer's questions".
Trooper DeFlaviis described the defendant's speech as "mumbled, confused and slurred". Trooper DeFlaviis performed field sobriety tests on the defendant who had informed the officer that he had not been drinking that day. The officer did not observe an odor of alcoholic beverage.
The defendant was administered the Horizontal Gaze Nystagnus ("HGN") test without objection by defense counsel which met the foundational test for HGN in Zimmerman v. State, 693 A.2d 311 (Del. 1999). Defendant was also given the Alphabet and Counting Test. Defendant was instructed to recite the alphabet D through G which he failed to perform successfully. On the Counting Test defendant was instructed to repeat 79 through 59 which he could not perform successfully. On the Horizontal Gaze Nystagnus Test the officer testified that the defendant voluntarily performed the test and understood his instructions. The officer testified with all six (6) clues present there is a 77% correlation statistically that defendants BAC is .08. The defendant exhibited all six (6) clues of the HGN test.
On the Walk and Turn Test, the second field coordination test, Trooper DeFlaviis testified two (2) clues constitute a failure and there is a 68% statistical correlation that defendant has a greater than .08 BAC. When two (2) clues exist, according to Trooper DeFlaviis, there is an 80% correlation when combined with the Horizontal Gaze Nystagnus Test according to Trooper DeFlaviis. The defendant also failed the Walk and Turn Test. On Steps 1 through 9. He missed step 1, he missed heel-to-toe on 2, 3 and 4; he stepped off the line on steps 2, 3 and 4 and raised his arms on step 5. Defendant also did the spin around counter circular turn contrary to Trooper DeFlaviis' instructions. On the second 9 steps back he raised his arms on steps 3, 4, 5 and 6 and a total of four (4) clues was exhibited by defendant and was constituted a failure.
The defendant was also given the One-Legged Stand Test. The officer testified that two (2) clues is a failure and there is a statistical correlation of 60% that the defendant has a BAC of .08 or greater. The defendant failed that NHTSA Field coordination test with four (4) clues.
Based upon this record and the performance on the tests the officer believed the defendant was under the influence and was taken to Omega Medical Facility for a blood draw.2,3
The defendant took the stand and testified he has a high school education and "wasn't sure if he was involved in an accident", but otherwise understood all the officer's instructions. The defendant admits that he became embroiled in a dispute with the attendant over $10.00 worth of gas. Defendant testified he didn't smoke marijuana that day and did not have any alcohol in his system.
Sec. 4177. Driving a vehicle while under the influence or with a prohibited alcohol content; evidence; arrests; and penalties
(1) When the person is under the influence of alcohol;
(2) When the person is under the influence of any drug;
(3) When the person is under the influence of a combination of alcohol and any drug;
(4) When the person's alcohol concentration is .08 or more; or
(5) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person's alcohol concentration at the time of driving, if the person's alcohol concentration is, within 4 hours after the time of driving .08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving.
(1) The fact that any person charged with violating this section is, or has been, legally entitled to use alcohol or a drug shall not constitute a defense.
(2) a. No person shall be guilty under subsection (a)(5) of this section when the person has not consumed alcohol prior to or during driving but has only consumed alcohol after the person has ceased driving and only such consumption after driving caused the person to have an alcohol concentration of .08 or more within 4 hours after the time of driving b. No person shall be guilty under subsection (a)(5) of this section when the person's alcohol concentration was .08 or more at the time of testing only as a result of the consumption of a sufficient quantity of alcohol that occurred after the person ceased driving and before any sampling which raised the person's alcohol concentration to.08 or more within 4 hours after the time of driving.
(3) The charging document may allege a violation of subsection (a) without specifying any particular subparagraph of subsection (a) and the prosecution may seek conviction under any of the subparagraphs of subsection (a).
(1) "Alcohol concentration of .08 or more" shall mean:
a. An amount of alcohol in a sample of a person's blood equivalent to .08 or more grams of alcohol per hundred milliliters of blood; or
b. An amount of alcohol in a sample of a person's breath equivalent to .08 or more grams per two hundred ten liters of breath.
(2) "Chemical test" or "test" shall include any form or method of analysis of a person's blood, breath or urine for the purposes of determining alcohol concentration or the presence of drugs which is approved for use by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, the Delaware State Police Crime Laboratory, any state or federal law enforcement agency, or any hospital or medical laboratory. It shall not, however, include a preliminary screening test of breath performed in order to estimate the alcohol concentration of a person at the scene of a stop or other initial encounter between an officer and the person.
(3) "Drive" shall include driving, operating, or having actual physical control of a vehicle.
(4) "Vehicle" shall include any vehicle as defined in §101(80) of this title, any off-highway vehicle as defined in § 101(39) of this title and any moped as defined in §101(31) of this title.
(5) "While under the influence" shall mean that the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle.
(6) "Alcohol concentration of .16 or more" shall mean:
a....
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