State of Delaware P.O. Box North French Street Wilmington, DE Attorney for State DECISION AFTER TRIAL

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1 IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE ) ) v. ) Case No ) WESLEY Z. BUMPERS ) David R. Favata, Esquire Louis B. Ferrara, Esquire Deputy Attorney General Ferrara Haley Bevis & Solomon Department of Justice 1716 Wawaset Street State of Delaware P.O. Box North French Street Wilmington, DE Wilmington, DE Attorney for Defendant Attorney for State DECISION AFTER TRIAL Wesley Z. Bumpers (hereinafter Defendant ) is charged by Information with Driving Under the Influence of Alcohol, a violation of 21 Del. C. 4177(a), Leaving the Scene of an Accident Resulting in Injury, a violation of 21 Del. C. 4202(a), Removal of a Vehicle from the Scene of an Accident, a violation of 21 Del. C and Failure to Report an Accident Involving Alcohol, a violation of 21 Del. C. 4203(a)(3). Trial was held in the Court of Common Pleas on February 15, During the trial Defendant s Motion to Suppress for lack of probable cause 1

2 to arrest the defendant for driving under the influence of alcohol was heard, and denied. FACTS On February 26, 2000, at approximately 2:00 a.m. in New Castle County, Delaware, Amy Cope was driving southbound on Delaware Route 141 in the left hand lane, just south of the Exxon station located at the intersection of Route 141 and Faulkland Road. Ms. Cope testified that she heard brakes screeching and, a second or two later, she was rear ended by another vehicle. Ms. Cope s vehicle was turned 180 degrees from its soriginal position and pushed into the oncoming lane of traffic. Although her vehicle was moving when struck from behind, after the collision both vehicles temporarily came to rest. Ms. Cope believed that the driver of the vehicle that struck her was about to leave the scene. She then pulled her vehicle as close as possible to the other vehicle and observed a white male driving the vehicle. She testified she was as close as six feet from the driver when she observed him. Both persons were within their respective vehicles. As the vehicle fled the scene Ms. Cope observed a Delaware vanity tag, COWBYS. She identified the vehicle as a gold Mazda. Ms. Cope then drove to Christiana Hospital where she was treated for injuries sustained in 2

3 the collision. During the trial Ms. Cope positively identified the defendant, Wesley Z. Bumpers, as the driver of the vehicle that struck her from behind. At trial Corporal Jeffrey Smith, Delaware State Police, testified that, on February 26, 2000, he was dispatched to the Christiana Hospital regarding a motor vehicle accident. He testified that he arrived at approximately 2:29 a.m. and spoke with Amy Cope regarding the accident. From Ms. Cope he obtained the information that the driver of the vehicle that stuck her was a white male between 20 and 30 years of age, with dark hair, driving a gold Mazda with a Delaware vanity tag of COWBYS. The officer processed that information and obtained further information that the vehicle in question was owned by Wesley Z. Bumpers. The officer proceeded to the home of Wesley Bumpers, arriving at approximately 3:05 a.m.. He observed a gold Mazda 1999 Model 626, bearing the license plate COWBYS in the driveway. The vehicle had heavy front-end damage and the hood was warm to the touch. The vehicle was leaking fluid onto the driveway. The officer was met at the door of the Defendant s residence by Lisa Roark. When asked if she had been driving the Gold Mazda that evening, she replied no. When asked if the person who had been driving the vehicle that evening was in the residence, Ms. Roark admitted the officer to the residence and took him to a second floor bathroom. The officer 3

4 observed a white male, later identified as the Defendant, Wesley Z. Bumpers, slumped over the toilet, vomiting. The Defendant had the odor of alcohol coming from his breath. His eyes were very bloodshot, his speech was slurred. He staggered when attempting to walk and he needed to support himself. The officer took the Defendant to State Police Troop 6 where he asked the Defendant to perform certain field tests. The officer administered the Horizontal Gaze Nystamus test while Defendant was wearing soft contact lenses. He also administered the One Legged Stand test and the Walk and Turn test to Defendant. The officer rated all three Field Sobriety Tests as failures. Based on his observations, the accident, the description given by Ms. Cope of the car and driver, Ms. Roark s taking him to the second floor bathroom in response to his questions, together with failure of all three field sobriety tests, Cpl. Smith believed that probable cause existed to arrest Wesley Z. Bumpers for Driving Under the Influence. The Defendant was also charged with the three additional Motor Vehicle offenses mentioned earlier. The officer also testified that he observed no beer cans or liquor bottles in the Defendant s home. 4

5 The officer gave Defendant Bumpers his Miranda Warning and properly conducted the 20 minute waiting period. The calibration records of the Intoxilyzer 5000 used for the BAC test were admitted into evidence without objection. The first Intoxilyzer 5000 Test was performed at 4:05 a.m. and produced an Invalid Sample. The mouthpiece was changed and the procedure was properly restarted. The second test, performed at 4:10 a.m., produced a Blood Alcohol result of.15, the test result being admitted into evidence without objection. DISCUSSION AND CONCLUSIONS During closing argument counsel for Defendant raised the issue that, at no time during the State s case, did any witness give testimony that the Defendant had been drinking at, or prior to, the time of the accident. Amy Cope, the victim of the rear end collision, was able to identify the Defendant as the driver of the vehicle that struck her, but could provide no evidence that the Defendant was drinking at that time. The arresting officer testified that he did not ask the Defendant if he had been drinking prior to, or while driving, that night. He apparently relied on the description of the Defendant and his vehicle provided by Ms. Cope together with the actions of Lisa Roark, when Ms. Roark took the officer to the second floor bathroom in 5

6 response to the question as who had been driving the damaged vehicle in the driveway. This helps establish that the Defendant was in fact the driver, but not that he had been drinking prior to, or while driving. The State argued that under 21 Del. C. 4177(a)(5), a person is guilty under the 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.10 or more. The State further argued that the Defendant had available an affirmative defense in Section 4177(b)(2)a, that is, when alcohol is consumed only after the person has ceased driving. The State takes the position that the defense presented no evidence to support the affirmative defense that Defendant consumed alcohol after driving. The state further contends that The State cannot prove a negative, therefore, it is presumed that there was no drinking after driving. However, the Defense correctly points out that the current statute, 4177(b)(2)(a), (effective date May 18, 1999) does not shift the burden of proof to the Defendant, as would be required by an affirmative defense. In fact, The Delaware Supreme Court found that the former 4177(b)(2) violated a defendant s due process rights by impermissibly shifting to the defendant the burden of disproving an element of the offense of Driving 6

7 While Under the Influence and, therefore, placed upon the defendant the affirmative obligation to negate an element of the offense. State v. Baker, Del. Supr., 720 A.2d 1139, 1151 (1998). The defense makes reference to Lewis v. State, Del. Supr. 626 A.2d 1350 (1993) holding, that the State must prove both of the following two elements beyond a reasonable doubt: that defendant drove a motor vehicle at or about the time and place charged and that the defendant was under the influence of alcohol while he drove the motor vehicle. Under the revised 1999 statute the question now becomes, is having a blood alcohol concentration, within 4 hours after the time of driving, sufficient to find a person guilty of Driving Under the Influence? 21 Del. C. 4177(a)(5), in totality reads as follows: (a) No person shall drive a vehicle: (5) When the person s alcohol concentration is, within 4 hours after the time of driving.10 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.10 or more and (emphasis added) that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving. 7

8 To apply a statute the fundamental rule is to ascertain and give effect to the intent of the legislature. (Citation omitted). If the statute as a whole is unambiguous there is no reasonable doubt as to the meaning of the words used and the Court s role is then limited to an application of the literal meaning of the words. Coastal Barge Corporation v. Coastal Zone Industrial Control Board Del. Supr., 492 A.2d 1242, 1246 (1985). The former subsection (a)(5), without an implied element connecting the consumption of alcohol with driving, was found to be unconstitutionally overbroad. Baker, 720 A.2d at It is very clear that the Legislature meant to establish a clear connection, or nexus, by merely reading the Synopsis attached to House Bill 44, as Amended by House Amendment 1 and Senate Amendment 1, which was enacted by the 140 th Delaware General Assembly, becoming the current 21 Del. C. 4177(a)(5). In pertinent part the synopsis states: Therefore, under the applicable provisions of the statute ( 4177(a)(5)) the elements of DUI are: (1) driving; and (2) alcohol concentration of.10 or above within four hours of driving if that reading was the result of alcohol consumption prior to or during driving. (emphasis added) H.R. 44, 140 th Gen. Assem. (DE 1999) And further states: The Act addresses the goals of effective DUI enforcement and the concerns of the Delaware 8

9 H.R. 44, courts by: (1) making a technical change to the catch line; (2) re-enacting the four-hour provisions with specific nexus elements which link alcohol content and driving; (emphasis added) (3) re-writing the defense of drinking after driving to make such a simple defense without the preponderance of evidence burden imposed upon a defendant but with notice guidelines to insure effective preparation of DUI cases. The testimony in this case clearly does not establish a required element of Section 4177 (a)(5) of Title 21, i.e., and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving. 4177(a)(5). The burden of producing such evidence is clearly on the State. In the absence of any such evidence the Court cannot find that the State has proven each and every element of the offense beyond a reasonable doubt. Accordingly, the Defendant, Wesley Z. Bumpers, as to the offense of Driving a Motor Vehicle While Under the Influence of Alcohol, a violation of 21 Del. C. 4177(a), is found NOT GUILTY. As to the additional charges of (1) Leaving the Scene of an Accident Resulting in Injury, a violation of 21 Del. C. 4202(a), and (2) Removal of a Vehicle from the Scene of an Accident, a violation of 21 Del. C. 4206, the Court finds that the State has proven each and every element of the offenses 9

10 beyond a reasonable doubt, and the Defendant, Wesley Z. Bumpers, as to each of these offenses, is found GUILTY. As to the charge of Failure to Report an Accident Involving Alcohol, a violation of 21 Del. C. 4203(a)(3), the necessary element of involvement of a driver whose physical ability was impaired as a result of the use of alcohol or drugs, as required under the specific subsection of the offense charged, has not been established. Therefore, the Court finds the Defendant, Wesley Z. Bumpers, NOT GUILTY of that offense. The Court hereby orders that a full Pre-Sentence Investigation be prepared and the matter be scheduled for Sentencing. IT IS SO ORDERED. Dated: December 9, 2002 Joseph F. Flickinger III, Judge 10

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