State v. Rucker, 297 A.2d 400 (Del. Super. Ct. 1972). · Go Syfert
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State v. Rucker, 297 A.2d 400 (Del. Super. Ct. 1972). Cases Citing This Book View Copy Cite
40 citation events (1 in the last 25 years) across 16 distinct courts.
Strongest positive: State v. Mark Scisney (tenncrimapp, 1997-10-16) · Strongest negative: Barcott v. State, Department of Public Safety (alaska, 1987-09-11)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited "but see" Barcott v. State, Department of Public Safety
Alaska · 1987 · signal: but see · confidence high
It is not unreasonable to require that the test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process.”); State v. Prestier, 7 Ohio Misc.2d 36 , 455 N.E.2d 24, 27 (1982) (“Every margin of error in a chemical test utilized for the purpose of determining the alcoholic content of the defendant’s blood as it addresses his guilt or lack of guilt in operating a motor vehicle while under the influence of alcohol must be strictly construed against the state and liberally construed in favor of the defendant.”); State v. Keller, 36 Wash.App. 110 …
discussed Cited "but see" Nugent v. Iowa Department of Transportation
Iowa · 1986 · signal: but see · confidence high
But see State v. Rucker, 297 A.2d 400, 402-03 (Del.Super.Cft.1972) (The court held that under the express terms of the statute, the test result reading was conclusive and the alleged margin of error need not be considered in determining whether the OWI charge was supported.).
discussed Cited as authority (rule) State v. Mark Scisney
Tenn. Crim. App. · 1997 · confidence medium
Rucker, 297 A.2d at 402-03 (emphasis added) Tennessee Code Annotated section 55-50-408 provides as follows: Driving under the influence -- For purposes of this chapter and § 55-10-401, any person who drives, operates or exercises physical control of a commercial motor vehicle with a blood alcohol concentration of point zero four (.04) or more commits the offense of driving while under the influence of alcohol, in violation of § 55- 50-405.
examined Cited as authority (rule) Haynes v. State, Department of Public Safety (4×) also: Cited "see"
Alaska · 1993 · confidence medium
Courts that interpret their DWI statutes to create an offense upon a test reading in excess of the statutory limit presume that the legislature considered the inherent risk of error in the chemical analysis and found it to be tolerably inaccurate; thus, the courts did not require the fact finder to consider the inherent margin of error of a particular testing device. 5 See State v. Rucker, 297 A.2d 400, 402-03 (Del.Super.Ct.1972); Nugent v. Iowa Dep’t of Tramp., 390 N.W.2d 125, 128 (Iowa 1986); Schildgen v. Comm’r of Pub.
discussed Cited as authority (rule) Nelson v. Commonwealth
Va. Ct. App. · 1993 · confidence medium
Although decisions from other states with analogous statutes vary, we find persuasive the decisions in Wieseler v. Prins, 805 P.2d 1044, 1047 (Ariz. Ct. App. 1990); State v. Rucker, 297 A.2d 400, 402-03 (Del. 1972); Nugent v. Iowa Dep’t of Transp., 390 N.W.2d 125, 128 (Iowa 1986); Loxtercamp v. Commissioner of Public Safety, 383 N.W.2d 335, 337 (Minn. Ct. App. 1986); State, Dep 't of Motor Vehicles & Public Safety v. Rowland, 814 P.2d 80, 83 (Nev. 1991).
discussed Cited as authority (rule) Hamann v. State
Del. · 1989 · confidence medium
The Superior Co'urt has held that while the possibility of variances in readings may reflect “an inherent weakness” in the statute, the legislation is drafted so as to “preclude these factors from being considered as issues of fact.” State v. Rucker, Del.Super., 297 A.2d 400, 403 (1972).
discussed Cited as authority (rule) People v. Lujan
Cal. App. Dep’t Super. Ct. · 1983 · confidence medium
See People v. McDonough (1972) 39 App.Div.2d 188 [ 333 N.Y.S.2d 128, 129 ]; State v. Hamza (Fla. 1977) 342 So.2d 80 ; State v. Carhartt (Fla. 1976) 335 So.2d 554 ; State v. Hill (1976) 31 N.C.App. 733 [ 230 S.E.2d 579 ]; State v. Torrey (1978) 32 Ore.App. 439 [ 574 P.2d 1138 ]; State v. Clark (1978) 35 Ore.App. 851 [ 583 P.2d 1142 ]; People v. Bradford (1978) 96 Misc.2d 298 [ 408 N.Y.S.2d 1013 ]; State v. Rucker (Del.Super. 1972) 297 A.2d 400, 402; People v. Weber (1975) 82 Misc.2d 593 [ 371 N.Y.S.2d 361, 363 ]; Slaughter v. State (Del.Super. 1974) 322 A.2d 15, 16 ; State v. Oyen (S.D. 1979) 2…
discussed Cited "see" Meehan v. Kansas Department of Revenue
Kan. Ct. App. · 1998 · signal: see · confidence high
See State v. Rucker, 297 A.2d 400 (Del. 1972) (possible variation in test results cannot be presented to trier of fact; issue is limited to whether test was administered according to approved protocol); State v. Garthe, 145 N.J. 1, 13 , 678 A.2d 153 (1996) (testing procedures adopted by administrative agency must be upheld absent evidence that the protocols are not scientifically reliable to establish that the breathalyzer machines are in proper operating order).
discussed Cited "see, e.g." Kalmakoff v. Municipality of Anchorage
Alaska Ct. App. · 1986 · signal: compare · confidence low
Compare State v. Boehmer, 1 Haw.App. 44 , 613 P.2d 916 (1980), State v. Bjornsen, 201 Neb. 709 , 271 N.W.2d 839 (1978), and State v. Clark, 286 Or. 33 , 593 P.2d 123 (1979), with State v. Rucker, 297 A.2d 400 (Del.1972), and State v. Shaping, 312 N.C. 421 , 323 S.E.2d 350 (1984).
Retrieving the full opinion text from the archive…
STATE of Delaware
v.
Billy L. RUCKER
Superior Court of Delaware.
Sep 13, 1972.
297 A.2d 400
H. Murray Sawyer, Jr., Deputy Atty. Gen., for the State., John M. Bader, of Bader, Dorsey & Kreshtool, Wilmington, for defendant.
Christie.
Cited by 30 opinions  |  Published

OPINION

CHRISTIE, Judge.

On October 3, 1971, at about 1:30 A.M., a state police officer in the course of investigating an accident, found defendant standing beside one of two cars involved. Defendant admitted he had been driving the car next to which he was standing. An odor of alcohol was detected about the defendant’s breath and his clothes were disarranged. His speech slurred. One bottle of beer was found outside the car. Ten bottles of beer and a bottle of whiskey were found inside of the car. The defendant’s coordination was found to be only fair to poor and he had trouble walking. He had to be leaned against the police car “so he wouldn’t get out on the roadway and fall down”. It was a foggy night. No coordination tests were performed at the scene; the officer wanted the defendant to get in the police car “so he wouldn’t get hurt”.

At the police station at 2:10 A.M. a “Mob-at” breath test was administered by an officer trained and experienced in its administration. The state chemist examined the Mobat and found a reading of 0.104 indicated blood alcohol in defendant’s blood. He testified in the Court of Common Pleas on cross-examination that the reading from the breath alcohol test could have a variance of as much as 0.009 from a reading based on a test of the blood so that the reading could have been anywhere from 0.-095 to 0.113 if the blood rather than the breath had been tested.

At the close of the State’s case, defense counsel moved to dismiss the case contending that because of the possible variance between a breath test and a blood test reasonable doubt existed as to the actual blood alcohol reading, and that an additional pos[*402] sible variance existed because of the passage of time between the time the defendant drove and the time when the test was taken. The State took the position that the express language of 21 Del.C. § 4176 makes conviction mandatory when the reading is 0.100 or more and it is established that defendant was driving the car. The Court of Common Pleas ruled that:

“Since there is a possibility of error that could have reduced the reading beyond the .1 presumption I will grant the Defendant the benefit of the doubt and grant the motion to dismiss the action.’’

The appeal by the State followed under the provisions of 10 Del.C. § 9902 which grants the State the right to appeal when a lower court dismisses an information based on the construction of a statute.

The statute prohibits the driving of a motor vehicle while under the influence of intoxicating liquor and goes on to provide in pertinent part:

“Any person who drives, operates or has in actual physical control a motor vehicle while such person’s blood has reached a blood alcohol concentration of Vio of 1% or more, by weight, as shown by a chemical analysis of a blood, breath, or urine sample taken within 4 hours of the alleged offense, shall be guilty under this section.” 21 Del.C. § 4176(a).

In the instant case the undisputed evidence shows: (1) the defendant was operating the car; (2) a sample of the defendant’s breath was taken by an officer trained and experienced in its taking; (3) the taking was within the statutory time limit; and (4) a chemical analysis revealed as a fact a 0.104% reading of blood alcohol by weight.

The State is correct when it contends that the Court below had no choice but to apply the language of 21 Del.C. § 4176(a) and find the defendant guilty.

In the recent case of Coxe v. State, 281 A.2d 606 (Del.Supr.1971), Coxe was convicted in Superior Court of driving a motor vehicle while under the influence of alcohol. He challenged 21 Del.C. § 4176(a) as being unconstitutional in that it provided for a “conclusive presumption of guilt based upon a chemical reading”. 281 A.2d at 607. The Supreme Court rejected this argument stating:

“The statute provides for no presumption of guilt, but instead provides that any person having the specified blood alcohol concentration ‘shall be guilty.’ To establish guilt, the State must prove only that the defendant was in physical control of the vehicle, and that a proper and timely test showed the required percentage of alcohol concentrated in the defendant’s system”.

In dismissing this case, the Court of Common Pleas noted that the possible discrepancy in the reading could have lowered it below the “presumption”. The statute does not set up a presumption. It simply makes a blood alcohol concentration of 0.-100%, or more, as shown by specified types of tests, an element of the offense. If one has that concentration while driving, as determined by the test specified in the statute and if that test was administered within 4 hours after the alleged offense, 21 Del.C. § 4176 directs that such person “shall be guilty”.

The defendant argues that the essence of the offense is having a blood alcohol level of 0.100, or more, at the time of the driving and not at the time of the test. Defendant says the State failed to prove that the required percentage existed at the time he was driving. This argument fails to recognize that the statute in question spells out what shall constitute proof of the offense.

Under the terms of the statute the trier of fact must determine whether the test results show the required percentage of alcohol in the blood. The trier of fact is not free to disregard the mandate of the statute or to question the wisdom of the General Assembly in providing that test re-[*403] suits constitute proof of that element of the crime.

The possible variance in results between various types of tests and the possible variances in readings between tests taken while the accused was driving and those taken afterwards may be an inherent weakness of the statutory provisions. The General Assembly could have considered these possible variances when it enacted the legislation but the legislation is so worded as to preclude these factors from being considered as issues of fact.

If there had been evidence that the test was improperly administered, such evidence could cast such doubt on the result as could be considered by the trier of fact in determining whether the statutory requirements had been met. But, as indicated, evidence that the types of tests already approved by the General Assembly when properly conducted are still subject to -possible variations in results, is not a matter which is here left to the trier of facts.

The Court of Common Pleas made an error in its interpretation of the statute and in dismissing the case. The decision must be reversed. The State is requested to submit an appropriate order.