Opinion
ID. No. 0109006842
Submitted: May 9, 2002
Decided: June 20, 2002
Upon Defendant's Motion for New Trial. Denied.
Upon Defendant's Motion to Dismiss or Reduce the Felony Charge. Granted.
James J. Kriner, Esquire, Deputy Attorney General, Dover, Delaware, for the State.
John S. Malik, Esquire, Wilmington, Delaware, for the Defendant.
ORDER
This 20th day of June 2002, after consideration of Glen S. Rebarchak's State v. Glen S. Rebarchak I.D. No. 0109006842 June 20, 2002 ("defendant's") Motion for New Trial and Motion to Dismiss the Felony Charge, it appears to the Court that:
The Court notes that the State has not submitted a response to these motions.
Background
1. The defendant was indicted on one count of Driving a Vehicle While Under the Influence of Alcohol and/or Drugs ("DUI"), in violation of Title 21 Del. C. § 4177(a) of the Delaware Code.
2. A trial was held on these charges whereupon a jury found the defendant guilty as charged. At trial, the defendant moved in limine to preclude all testimony concerning the administration of, or results of, a Portable Breath Test ("PBT") conducted prior to defendant's arrest, for the reason that it was inadmissible on the issue of guilt. The Court granted defendant's motion in limine.
3. After the Court granted the defendant's motion in limine, during presentation of the State's case in chief, the prosecutor asked the arresting officer which field sobriety tests were administered to the defendant at the scene. The officer answered that one of the tests performed was the Portable Breath Test, or PBT.
4. Upon hearing this testimony, counsel for the defense requested a mistrial for the reason that the State violated this Court's Order excluding reference to the PBT test. The Court denied the motion for a mistrial and immediately instructed the jury to disregard the offending testimony regarding the PBT. The jury found the defendant guilty on the DUI charge.
5. The defendant now moves for a new trial, pursuant to Superior Court Criminal Rule 33, for the reason that a mistrial should have been granted because the State blatantly violated this Court's ruling on PBT evidence.
6. The defendant also submits a second motion asking this Court to dismiss the DUI felony charge or to reduce the charge to a misdemeanor. The defendant maintains that he cannot be charged or sentenced for a felony DUI because he does not have the necessary prior "convictions" under 21 Del. C. § 4177.
7. The defendant submits that he has a 1986 DUI adjudication of delinquency. In addition, the defendant has two DUI convictions which occurred in 1994 and 1995 respectively. It is defendant's position that an adjudication of delinquency on a charge of DUI cannot be considered a "conviction" for purposes of enhancing his sentence to a felony under 21 Del. C. § 4177(d). Moreover, because his 1994 and 1995 convictions are both in excess of five years these DUI's cannot be considered for enhancement purposes. For these reasons, the defendant submits that he cannot be charged or sentenced for a felony DUI.
Motion for New Trial
8. Superior Court Criminal Rule 33, governs the consideration of a motion for new trial, and provides that this Court "on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." The defendant must assert the grounds for a new trial during the original trial. A motion for a new trial is addressed to the sound discretion of the trial court and reversal is appropriate only where there is a clear abuse of discretion. In a criminal case, a motion for new trial will not be granted if there was some probative evidence upon which a verdict of guilty could reasonably be based. Thus, in considering a motion for new trial, this Court must exercise its discretion and refrain from granting the motion unless the jury issues a verdict which appears to be against the great weight of the evidence. The evidence is to be viewed in the light most favorable to the State.
State v. Halko, 193 A.2d 817 (Del.Super.Ct. 1963), aff'd, 204 A.2d 628 (Del. 1964).
Hutchins v. State, 153 A.2d 204 (Del. 1959).
State v. Biter, 119 A.2d 894 (Del.Super.Ct. 1955).
Storey v. Camper, 401 A.2d 458 (Del. 1979).
Price v. State, 1996 WL 526013 (Del.).
Mistrial
9. The Delaware Supreme Court has stated that it will review the Superior Court's decision to deny a motion for a mistrial under an abuse of discretion standard. "It is well settled in Delaware that a mistrial is mandated only where there are no meaningful and practical alternatives to that remedy." Moreover, "the trial judge is in the best position to assess whether a mistrial should be granted. Additionally, prejudice must be egregious when a curative instruction is deemed insufficient to cure prejudice to the defendant."Discussion
10. In the instant case, the defendant is not entitled to a new trial in the interest of justice, because there was some probative evidence upon which a verdict of guilty could reasonably be based. The verdict was not against the great weight of the evidence. Moreover, a mistrial was inappropriate because the prejudice here, if any, was not so egregious that a curative instruction was insufficient to cure any such prejudice to the defendant.11. The defendant argues that the PBT evidence improperly opened the door for the introduction of the intoxilizer results. The defendant states that given the extreme closeness of this case, coupled with the State's clear violation of the Court's Order excluding reference to the PBT test, it cannot be said with any degree of certainty that the reference to the PBT test did not unfairly prejudice the defendant by improperly placing another test (i.e. the intoxilizer results) before the jury.
Thus the defendant raises the introduction of PBT evidence within the framework of its use to establish probable cause. The defendant states that his arrest involved no erratic driving (a fact often considered in the establishment of probable cause). Here the defendant was rear-ended by an inattentive driver who had been traveling behind him, and it was the defendant who called the police and brought the accident to their attention. Furthermore, the defendant passed a substantial portion of the field sobriety tests (tests normally used to establish probable cause). Given these facts, the defendant argues that this was a close case, and the PBT test may have tipped the balance so as to improperly place the intoxilizer results before the jury. The propriety of the introduction of PBT evidence in this context concerns the propriety of its use to establish probable cause for the introduction of intoxilizer results.
12. This argument is inconsistent with Delaware law (which permits the use of PBT results to establish probable cause), and with this Court's ruling on the defendant's motion in limine (prohibiting evidence on the administration of the PBT results on the ultimate issue of guilt). "[W]hile the prohibition on the use of the PBT as a determinant on the issue of guilt constitutes current law, no such prohibition has been expressed as to its use as an indicium of probable cause." This Court prohibited the introduction of PBT evidence on the ultimate issue of guilt.
Price v. Voshell, 1991 WL 89866 at *4 (Del.Super.Ct.).
Id.
13. The State's evidence on the issue of guilt, exclusive of evidence concerning the administration of the PBT, was "sufficient to sustain a conviction." A conviction was mandatory once the State showed that the defendant had control of a motor vehicle, and a proper, timely intoxilizer test showed a blood alcohol level over .10. Any mention of the administration of the PBT was irrelevant to these elements and to the ultimate issue of guilt.
Ashley, 2002 WL 431973 at *2.
State v. Rucker, 297 A.2d 400 (Del. 1972).
14. For this reason, the limited testimony that a PBT was administered was harmless error on the ultimate issue of guilt. Moreover, the jury was immediately instructed to disregard the testimony. On the other hand, evidence regarding the PBT was relevant and admissible on the issue of probable cause to administer the intoxilizer. The Court does not find that the prejudice to the defendant was egregious and will not order a mistrial. Nor, does the Court find that the verdict was against the great weight of the evidence, and the Court will not order a new trial.
Zimmerman v. State, 693 A.2d 311, 315 (Del. 1997) (internal citations omitted) (noting that "[a]n error in admitting evidence may be deemed `harmless' when the evidence exclusive of the improperly admitted evidence is sufficient to sustain a conviction").
See e.g. Price v. Voshell, 1991 WL 89866; Blanchard v. State, 2001 WL 487916 at *1 (Del.Super.Ct.) (finding PBT test results admissible to determine probable cause).
Motion to Dismiss or Reduce the Felony Charge
15. The defendant has filed a motion to dismiss or reduce the felony DUI charge to a misdemeanor. Obviously, since the Court will not order a new trial, the defendant's motion must be considered in terms of sentencing.
16. It does not appear to the Court that the State has filed a motion to enhance the defendant's sentence to a felony under 21 Del. C. § 4177(d)(3) or (4). Should the State pursue such a course, however, the Court wishes to make it clear that juvenile adjudications of delinquency for DUI under § 4177 do not qualify as "convictions" for sentence enhancement purposes under § 4177.
17. Under 10 Del. C. § 1009 (h) and (i):
No adjudication upon the status of a child shall be deemed a conviction . . . . Neither the adjudication nor any evidence given in any case shall be admissible against such child in any further civil or criminal proceeding in any court for any purpose other than a presentence investigation ordered by [Family Court] or any other court.
Note that this statutory language existed at the time of the defendant's adjudication of delinquency in 1986. At that time it was denominated as 10 Del. C. § 937(e). See 58 Del. Laws, c. 114, § 1; 60 Del. Laws, c. 657, § 1; 63 Del. Laws, c. 87, § 1.
18. The punishments under § 4177(d) "may be inflicted only after a judgment of conviction" under § 4177(a). Because the defendant's 1986 juvenile adjudication of delinquency for DUI under § 4177 cannot be considered a "conviction," the State may not use that adjudication to enhance the defendant's sentence for his current DUI conviction.
Zimmerman v. State, 693 A.2d at 317.
Since the Court rules that the 1986 juvenile adjudication of delinquency is not a conviction that can be used to enhance punishment under § 4177(d), the Court does not reach the waiver of counsel issue with respect to this juvenile adjudication.
Conclusion
19. For these reasons, I find that, viewing the evidence in the light most favorable to the State, the jury verdict on the DUI charge was reasonably based upon probative evidence and, as such, is not against the great weight of the evidence. Consequently, there is nothing which requires this Court in the interest of justice to set aside the aforementioned verdict. Nevertheless, the State may not use juvenile adjudications of delinquency for DUI under § 4177 to enhance the defendant's sentence for his current conviction.WHEREFORE, defendant's Motion For New Trial is DENIED, and defendant's Motion to Dismiss or Reduce the Felony Charge is GRANTED to the extent that juvenile adjudications of delinquency for DUI under 21 Del. C. § 4177(a) may not be used to enhance the defendant's sentence to a felony under 21 Del. C. § 4177.
IT IS SO ORDERED.