State v. Gallagher, No. 0812009171 (Del.Gen.Sess. 10/15/2009), Case No. 0812009171.
| Decision Date | 15 October 2009 |
| Docket Number | Case No. 0812009171. |
| Parties | State of Delaware v. John F. Gallagher. |
| Court | Court of General Sessions of Delaware |
Michael Hendee, Esquire, Office of the Attorney General, Criminal Division, Wilmington, DE, Attorney for the State.
Louis B. Ferrara, Esquire, Ferrera, Haley & Collins, Wilmington, DE, Attorney for Defendant.
Dear Counsel,
Trial in the above captioned matter was held in the Court of Common Pleas, New Castle County Criminal Division on Wednesday, October 7, 2009.
The defendant was charged with two Counts of Traffic Violations filed by Information with the Clerk of the Court by the Attorney General. First, the defendant, John F. Gallagher, Jr., (the "defendant") was charged on or about the 13th day of December, 2008, in the County of New Castle with driving a vehicle upon Silverside Road, Wilmington, Delaware "while under the influence of alcohol or any drug or a combination of drugs and alcohol or with a prohibited alcohol content as set forth in Section 4177 of Title 21, or when said persons blood contains an illicit or recreational drug as set forth in Section 4177 of Title 21". Second, the defendant was charged "on or about the 13th day of December, 2008, in the County of New Castle, State of Delaware, did drive a motor vehicle upon a public roadway known as Silverside Road, Wilmington, Delaware and did fail to give full time and attention or maintain a proper lookout while operating the motor vehicle" in violation of 21 Del.C. §4176(b).
Defendant filed a Motion to Suppress.1 Following the receipt of all documentary evidence and sworn testimony, the Court reserved decision. This is the Court's Final Opinion and Order on Defendant's Motion.
Lauren Nicole Davis ("Davis") presented testimony at the Suppression Hearing. Davis resides in Wilmington, Delaware and on December 13, 2008 at 10:50 p.m. she was traveling on Marsh Road in New Castle County taking some friends home.2 Davis was making a left turn at Marsh Road and stopped at a T-intersection in New Castle County to enter the neighborhood in order to drop her friend off. There were three (3) passengers in her motor vehicle. She was waiting for approximately one (1) minute when she suddenly "got hit" and suddenly became a "little bit in shock." Davis was hit in the rear of her motor vehicle which shattered her rear window, and pushed her car forward into the other lane of traffic. Davis testified that her car was "totaled". Davis then sat in her motor vehicle with her passengers "for a couple of minutes" and then pushed her motor vehicle to the other side of the road. The other driver in the motor vehicle, the defendant, exited his motor vehicle. Davis observed him leave from the driver's side door. Davis spoke with him briefly and asked him if he was going to call the police. Defendant told her to just call a tow truck and "we can call the police tomorrow."
Davis then instructed her friends in her motor vehicle to call the police after she briefly spoke with her father.
Davis' observations of the defendant, after she observed his face, were that there were no marks and no blood. Davis did not detect an odor of alcohol from defendant's person.
On cross-examination, Davis indicated that she is eighteen (18) years old but was seventeen (17) years of age when the accident occurred on December 13, 2008. Davis was attempting to make a left turn and there were double yellow lines with a shoulder on one side of the road. Davis is a student at Concord High School. Davis moved her motor vehicle onto the shoulder in the opposite direction in order to avoid traffic. The lighting in the area, according to Davis, was one light pole for the entrance way, which was a "T-intersection". No airbags "popped" in Davis' motor vehicle when it was struck and totaled by defendant's motor vehicle. Davis testified the defendant did exit his motor vehicle and ask Davis "Are you okay?"
Delaware State Trooper Joshua S. Walther ("Trooper Walther") arrived and spoke to Davis on December 18, 2008 at the scene of the accident. Trooper Walther also spoke to the defendant. Davis reiterated her testimony that she observed no cuts, bruises and nothing unusual about the defendant.
Trooper Walther presented testimony at the hearing3. He is a Delaware State Police Trooper at Troop 1. His duties involve patrol, DUI enforcement, traffic accident, criminal summons and investigating crashes at traffic stops. Trooper Walther was present on the day in question, December 13, 2008 at 10:50 p.m. and was performing the same official duties.
Trooper Walther was called by RECOM to a motor vehicle collision at 22:55 hours (10:55 p.m.) at Silverside Road and Grinnell Road. It took approximately nine (9) minutes to arrive at the scene where he found two (2) motor vehicles with damages at that location, which was in New Castle County.
Trooper Walther identified the defendant in the courtroom. Trooper Walther observed the defendant's SUV in the westbound traffic lane and a smaller Honda owned by Davis in the eastbound traffic lane facing westbound. He made contact with the defendant and Davis. Trooper Walther spoke with Davis first and inquired, "is everybody okay?" and/or "Do you need an ambulance?" Davis responded in the negative.
Trooper Walther next spoke to the defendant at the scene on December 13, 2008. He provided testimony that the defendant was "slurring his words" and that the defendant "smelled of an odor of alcoholic beverage from his person". Trooper Walther testified he performed approximately 100 DUI arrests. When he further spoke with the defendant he noticed the odor of alcoholic beverage was now "a strong odor of alcoholic beverages" coming from defendant's person.
The defendant told him "I misjudged" my motor vehicle while driving and struck Davis. The defendant told Trooper Walther he believed Davis was going to turn left, but misjudged the timing of Davis' turn and struck the right side of her motor vehicle. The defendant first told him that he was coming from work, but further clarified when questioned that he was coming from a Christmas party at work. The defendant then told the Trooper that he had a "little bit of alcoholic beverages at the party."
Trooper Walther presented testimony that the defendant's eyes were "glassy" and "blood-shot". On redirect, he testified his AAIR report, however, simply referred to the defendant's eyes as "glassy". According to his AAIR report, defendant's face was "flushed". The defendant's attitude was marked as "cooperative" on the AAIR Report. The defendant produced his driver's license and registration and insurance card with no difficulty.
Next, Trooper Walther had the defendant perform some NHTSA approved field coordination tests. A proper foundation was established under Zimmerman v State, 693 A.2d 311 (1977) Del. Supr. (See footnote) for the Horizontal Gaize Nystagnus Test. As a result of performing those tests, the defendant exhibited six clues. According to Trooper Walther, the statistical reliability as to 77% of reliability as to the defendant with a .10 BAC is 4 out of 6 clues. Trooper Walther testified he observed all six clues on the defendant.
The defendant was then administered by Trooper Walther the Walk-and-Turn Test. The defendant passed. According to Trooper Walther the defendant passed because he had exhibited "less than 2 clues". Next the defendant did the One-Legged Stand Test which Trooper Walther testified the defendant exhibited 0 clues and passed.
The defendant was then given the Portable Breath Test ("PBT"), which this Court finds was administered properly and a proper foundation was properly established in the Suppression hearing by the State. The Court finds based upon the further colloquy by the defendant's counsel and the prosecutions prima facie proffer that the PBT was established as working administered properly and according to the operating instructions. The PBT was serviced at Troop 1 and was new PBT then given to Trooper Walther eleven (11) months ago. There was no new temperature gauge on the new model as new models have eliminated that feature. The PBT was taken out of the heated Trooper's motor vehicle and administered promptly to the defendant. The PBT was tested and all zeros were present on the calibration record as working properly. According to Trooper Walther, the defendant failed the Portable Breath Test.4
On cross-examination Trooper Walther testified that RECOM called him and the actual location of the instant accident was Grinnell and Silverside Road, a T-intersection. Trooper Walther previous law enforcement experience was seven (7) years with the County and four (4) years as a State Trooper. He reiterated his testimony that the defendant told him he "misjudged going around Davis' motor vehicle" because the defendant thought Davis' motor vehicle was turning more quickly. The defendant told Trooper Walther he therefore struck her motor vehicle on the right side and Trooper Walther testified it was a "big hit". The damage to defendant's SUV vehicle was "heavy front-end damage." The defendant was out of the car when Trooper Walther arrived.
On cross-examination, Trooper Walther testified that the defendant was "slurring his words;" had "glassy eyes;" there was a "strong odor of alcohol beverages;" no balance difficulties, and that the defendant produced his driver's license and insurance card without difficulty. According to Trooper Walther, defendant did not appear to be mentally impaired when he spoke with him. The defendant was not given the Mental Acuity, Alphabet and Counting Test. According to Officer Walther, defendant answered questions with "appropriate responses".
When questioned by defense counsel whether the HGN reliability factor of 77% is affected when a defendant passes two other NHTSA approved field coordination tests, Trooper Walther indicated he was...
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