State v. Patel ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
)
)
v. ) ID NO. 1909006286
)
ALOK PATEL, )
)
)
Decided: February 26, 2021
ORDER
Upon Defendant Alok Patel’s Motion in Limine to Exclude Blood Test Results
DENIED.
Jordan A. Braunsberg, Esquire, Department of Justice, Wilmington, Delaware,
Attorney for the State of Delaware.
Joseph A. Hurley, Esquire, Law Office of Joseph A. Hurley, Wilmington, Delaware,
Attorney for the Defendant.
SCOTT, J.
Before the Court is Defendant Alok Patel’s (“Mr. Patel”) Motion in Limine to
exclude his blood test results. For the following reasons, Mr. Patel’s Motion in
Limine is DENIED.
Relevant Facts
On September 11, 2019, an officer of the Newark Police Department, in an
incident involving traffic violations, arrested Mr. Patel and alleged he was driving
under the influence (“DUI”).1 Following his arrest, the Newark Police Department
obtained a blood search warrant.2 Approximately two hours after Mr. Patel was
initially stopped, a phlebotomist from Seascape Health Alliance (“Ms. Allen”)
procured a sample of Mr. Patel’s blood.
On October 27, 2020, after the parties’ second Final Case Review, Mr. Patel
requested the State to share the instructions that accompany the DSP Blood Kit. On
November 2, 2020, the State provided the DSP Blood Kit instructions (the “DSP
Instructions”) and provided a five-page instruction manual (the “Insert”) from the
manufacturer of the blood collection tube that is also included in the DSP Blood
Kit.3
1
State’s Answ. to Def.’s Mot. at ¶ 5.
2
Id. at ¶ 6.
3
Id. at ¶ 2.
1
The DSP Instructions state: “[i]mmediately after blood collection, assure
proper mixing of anticoagulant/preservative powder by slowly and completely
inverting the tube.”4
The Insert states, in pertinent part, that:
For proper additive performance, invert BD SSTTM Tubes or Plus Serum Tubes 5
times. Invert BD CAT Tubes 5-6 times. Invert BD SSTTM II Advance Tubes 6
times. Invert Citrate or CTAD tubes 3-4 times. Invert all other filled additive tubes
8-10 times. […]. Insufficient mixing or delayed mixing in serum tubes may result
in delayed clotting and incorrect test results. In tubes with anticoagulants,
inadequate mixing may result in platelet clumping, clotting and/or incorrect
test results.5
Additionally, the Insert provides a laboratory the authority to develop their
own collection procedures for the testing instruments:
Whenever changing any manufacturer’s blood collection tube types, size,
handling, processing, or storage condition for a particular laboratory assay,
the laboratory personnel should review the tube manufacturer’s data
and their own data to establish/verify the reference range for a specific
instrument/reagent system. Based on such information, the laboratory
can then decide if a change is appropriate.6
On November 13, 2020, Defendant filed his (1) Motion in Limine to Exclude
Blood Test Results of Defendant (“Motion”) and his (2) Memorandum in Support
of In Limine Motion to Exclude Blood Test Results (“Memorandum”). On
November 30, 2020, the State filed an Answer to Defendant’s Motion in Limine to
Exclude Blood Test Results.
4
Id. at ¶ 7.
5
Id., Ex. B. at p. 4 (Instruction 13) (emphasis added).
6
Id. at p. 4. (emphasis added).
2
Parties Assertions
A. The Defendant
In his Motion, Defendant argues that “a sufficient foundation will not be
presented by the State to permit admissibility of the instructions nor will there be
sufficient evidence of appropriate compliance therewith.” As a result, through his
motion, Defendant moves “to exclude the BAC calculation that was measured after
the collection of the Defendant’s blood.”7
In his Memorandum, Defendant clarifies his argument and states that
“[h]istorically, upon information and belief, the same manufacturer has required a
complete inversion of the collection tube no fewer than five times, post collection,
in order to bring into play the forces of gravity to assure proper distributions” and
“[t]he version anticipated to be proffered by the State offers no guidance,
quantitatively.”8 Moreover, the Defendant argues that “the testimony of the State
Chemist that proper distribution can be obtained by whatever method she advocates
is not a substitute, since she has no background in calibrating that particular phase
of collection albeit much experience in the laboratory analysis of the product,
whatever its constitution, that is tested.”9
7
Def.’s Mot. in Limine “to Exclude Blood Test Results of the Defendant” at p. 2.
8
Def.’s Mem. In Supp. of In Limine Motion to Exclude Blood Test Results at p. 2.
9
Id.
3
As a result, Defendant moves “to exclude the written manufacturer’s
instruction and/or the ultimate test results based upon a failure to comply with DRE
702 in presenting, by a preponderance of the evidence, the reliable marker to guide
the collection process.”10
Defendant argues that the Insert, not the DSP Instructions, set the foundational
requirements for entering Defendant’s blood test results (“BAC Results”) into
evidence. Additionally, Defendant argues that the State Chemist’s testimony is not
sufficient because she has no background in the collection of blood. 11 As a result,
Defendant moves to exclude the Insert and Defendant’s BAC Results based on the
State’s inability to comply with Delaware Rule of Evidence 702 in presenting the
State’s compliance with collection of Defendant’s blood.
B. The State
The State disagrees that the Insert sets the foundational requirements for entry
of Defendant’s BAC Results. The State claims that they only need to show
compliance with the DSP Instructions.12 However, even if compliance with the Insert
is the proper foundational requirement, the State argues that they have complied with
the Insert because the Insert provides authority for a lab to establish its own
10
Id. at pp. 2-3.
11
Id. at p. 2.
12
State’s Answ. to Def.’s Mot. at ¶ 12.
4
protocols.13 The State asserts that the DSP Instructions are authorized by Julie Willey
(“Director Willey”), the Director of the Delaware State Police Crime Lab
(“DSPCL”).14 Director Willey’s role as Directors of the DSPCL is to “oversee the
blood and breath DUI program and to also personally perform headspace gas
chromatograph testing,” (“HSGC”) which includes the testing of the Defendant’s
blood in the instant matter.15
Moreover, the State argues that, even if the preservative failed to mix
properly, the failure to properly mix the preservative does not prejudice the
Defendant because it would actually lower the final BAC level.16
Finally, regarding expert testimony, the State contends that Ms. Allen will
testify about the collection process and that she inverted the tube “2-3 times.”17
Standard of Review
“A motion in limine typically concerns the admissibility of evidence and is a
preliminary motion directed at establishing the ‘ground rules applicable at trial.’”18
“The admissibility of intoxilyzer test results center on the State providing an
13
Id.
14
Id. at ¶ 7.
15
Id. (see fn. 6).
16
Id. at ¶ 21.
17
Id. at ¶ 6.
18
Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 500 (citing to 3 Moore's Federal
Practice § 16.77[4][d] (3d ed.1997)).
5
adequate evidentiary foundation for the test result’s admission.”19 Compliance with
an intoxilyzer test’s instructions or requirements is the guarantee of reliability and
accuracy that is the foundational cornerstone to the admissibility of the results of a
blood test.20
Delaware Rule of Evidence 702 (“D.R.E. 702”) governs the admissibility of
expert testimony and provides as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) The expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) The testimony is based upon sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts
of the case.21
The Delaware Supreme Court created a five-prong test in determining the
admissibility of scientific or technical expert's testimony.22 Therefore, this Court
must also determine whether:
1. The witness is qualified;23
2. The evidence is otherwise admissible, relevant, and reliable;24
19
Clawson v. State, 867 A.2d 187, 192-93 (Del. 2005).
20
Hunter v. State, 55 A.3d 360, 364-66; see also Clawson, 867 A.2d at 191 (Del.
2005).
21
D.R.E. 702.
22
Williams v. Desperito, 2011 WL 7452803, at *3 (Del. Super. Ct. Oct. 24, 2011)
(citing Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del.
2006); Tolson v. State, 900 A.2d 639, 645 (Del. 2006)).
23
See D.R.E. 702.
24
See D.R.E. 401; D.R.E. 402.
6
3. The bases for the opinion are those reasonably relied upon by experts in
the field;25
4. The specialized knowledge being offered will assist the trier of fact to
understand the evidence or determine a fact in issue;26 and
5. The evidence does not create unfair prejudice, confuse the issues, or
mislead the jury.27
“[T]he proponent of the proffered expert testimony bears the burden of
establishing the relevance, reliability, and admissibility by a preponderance of the
evidence.”28 However, the proponent must only demonstrate that the expert's
opinions are reliable.29 Thus, where an expert's opinion is challenged, “the trial judge
must decide if the expert's testimony ‘has a reliable basis in the knowledge and
experience of the relevant discipline.’”30
Discussion
A. Superior Court’s Review for Admission of BAC Results into Evidence
When faced with whether to admit into evidence BAC Results, the Court first
inquires into whether the instructions for that particular test were complied with.31
The Court should admit the evidence so long as the State provides a reasonable basis
25
See D.R.E. 703.
26
See D.R.E. 702.
27
See D.R.E. 403
28
Minner v. Am. Mortg. & Guar. Co., 791 A.2d 826, 843 (Del. Super. Ct. 2000).
29
Williams, 2011 WL 7452803, at *3 (citing In re Asbestos Litig., 911 A.2d 1176,
1201 (Del. Super. 2006)).
30
M.G. Bancorporation, 737 A.2d at 521 (citing Kumho, 526 U.S. at 138 (quoting
Daubert, 509 U.S. at 592)).
31
Clawson, 867 A.2d at 192-93 (Del. 2005).
7
for the Court to find that the instructions were followed.32 If the State does so, then
the burden shifts to the defendant to show that the instructions were not actually
followed or otherwise rendered the results scientifically inaccurate and unreliable.33
If the instructions were not followed, established either through expert
statements34 or witness testimony,35 or are otherwise somehow inaccurate and
unreliable,36 then the Court must exclude the BAC Results.
a. Foundational Requirements: DSP Instructions vs. Insert
The parties fight over which instructions to apply and whether the State has
complied with the relevant instructions. Here, the Insert provides a laboratory the
authority to develop their own collection procedures for the testing instruments.
Whenever changing any manufacturer’s blood collection tube types, size,
handling, processing, or storage condition for a particular laboratory assay,
the laboratory personnel should review the tube manufacturer’s data
and their own data to establish/verify the reference range for a specific
instrument/reagent system. Based on such information, the laboratory
can then decide if a change is appropriate.37
As this Court stated in Fountain, this language “anticipates end users
developing their own instructions and protocol.”38 Under this authority, the DSPCL
32
Ayala, 204 A.3d at 835-36 (Del. 2019).
33
Hunter, 55 A.3d at 366 (Del. 2012).
34
Fountain, 2016 WL 4542741, at *5 (Del. Super. 2016).
35
Hunter, 55 A.3d at 35-36(Del. 2012).
36
Id.
37
State’s Answ., Ex. B. at p. 4. (emphasis added).
38
Fountain, 2016 WL 4542741, at *5 (Del. Super. 2016).
8
established a collection and testing procedure: the DSP Instructions.39 As a result,
the State is required to show compliance with the DSP Instructions.
b. The State’s Duty under the DSP Instructions
The DSP Instructions require the blood drawer to, “[i]mmediately after blood
collection, assure proper mixing of anticoagulant/preservative powder by slowly and
completely inverting the tube.”
According to the State, Ms. Allen will testify that she inverts the blood tubes
to ensure the additive powders mix into the blood samples and she inverts the bloods
tubes roughly 2-3 times.40 This conduct is consistent with the instructions.
B. The Issue Concerning Inversion Requirements
Defendant argues that “the testimony of the State Chemist that proper
distribution can be obtained by whatever method she advocates is not a substitute,
since she has no background in calibrating that particular phase of collection albeit
much experience in the laboratory analysis of the product, whatever its constitution,
that is tested.”41 By distribution, the Defendant refers to the mixture of blood and
additive powders in the blood tube contained within the DSP Blood Kit.
39
In Fountain, the Court noted that Director Willey stated that she did not create
the instructions, but rather someone had done so before she joined the DSPCL.
40
State’s Answ. at ¶ 6.
41
Id.9
Based on this Court’s experience with the same prosecutor and defense
counsel as in State v. Dyron Green, the Defendant is challenging Director Willey’s
authority to change the DSP instructions. In Dyron Green, Director Willey stated
that the instructions had required, pre-2014, the tube to be inverted five times.42
However, after concluding that there was no documentation that verified the
inversion requirement of five times,43 Director Willey stated that she removed this
requirement and instead required the phlebotomist to “[i]mmediately after
collection, assure proper mixing of anticoagulant/preservative powder by slowly and
completely inverting the tube.”44
The issue before the Court is better summarized as whether Director Willey
possessed the authority to change the DSP Instructions and whether the additive
powders were mixed sufficiently here to provide a reliable sample. For the reasons
that follow, Director Willey had the requisite authority, knowledge, and experience
to change the DSP Instructions.
a. Director Willey’s Authority
Director Willey, the Director of the DSPCL, “oversees the blood and breath
DUI program and [] also personally perform[s] headspace gas chromatograph
42
State v. Dyron Green, I.D. 1804014579, July 9, 2019 Trial Tr. at p. 120 (lns. 18-
19).
43
Id. at p. 129, lns. 11-13.
44
State’s Answ. at ¶ 7.
10
testing[.]”45 According to the State, Director Willey has authorized the use of the
DSP Instructions,46 which informs phlebotomists, like Ms. Allen here, as to the
specific requirements of an individual’s blood draw. Director Willey, having the
responsibility and oversight over the blood and breath DUI program in Delaware, is
authorized to make changes to the blood and breath DUI program – which includes
changes to established protocols in collecting blood samples. Thus, there is no
dispute that Director Willey had the authority to change the DSP Instructions.
b. Reliable Sample
The issue of whether Mr. Patel’s sample was collected and processed in a
manner that produced a reliable and accurate test result is at issue here.
i. Proposed Testimony
Director Willey will testify as to the reliability of the collection procedures
and Defendant’s sample at trial. According to the State, Director Willey will testify
that: (1) the failure to mix the additive powders properly will result in the blood
sample coagulating; (2) coagulated blood cannot be tested via the HSGC test; (3) a
visual inspection of a blood sample would reveal whether the blood sample was
coagulated; (4) DSPCL inspects all blood samples for coagulation and for any other
irregularities, such as odor or discoloration, prior to any testing; (5) she personally
45
Id. at p. 4 (fn. 6).
46
Id. at ¶ 7.
11
inspected Defendant’s blood sample and determined that no coagulation occurred;
(6) the HSGC test results indicated a blood alcohol content of .16; and (7) prior
scientific evidence from the past three decades conclude that the presence or absence
of a preservative does not impact the integrity of the blood sample relative to its
alcohol content.47 In light of Defendant’s arguments here, and as she did in Green,
Director Willey will likely also testify that (8) there is no requirement that the blood
tube must be inverted a specific number of times to ensure a reliable sample.
ii. Delaware Supreme Court’s Five Factor Test48
The Court, in determining the admissibility of scientific or technical expert
testimony, must analyze whether:
1. The witness is qualified;
2. The evidence is otherwise admissible, relevant, and reliable;
3. The bases for the opinion are those reasonably relied upon by experts in
the field;
4. The specialized knowledge being offered will assist the trier of fact to
understand the evidence or determine a fact in issue; and
5. The evidence does not create unfair prejudice, confuse the issues, or
mislead the jury.
On the first day of trial in State v. Dyron Green, Director Willey stated that:
(1) she has been employed at the DSPCL for the last twenty-seven (27) years;49 (2)
47
State’s Answ. at ¶¶ 8-10.
48
Williams v. Desperito, 2011 WL 7452803, at *3 (Del. Super. Ct. Oct. 24, 2011)
(citing Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del.
2006); Tolson v. State, 900 A.2d 639, 645 (Del. 2006)).
49
State v. Dyron Green, July 9, 2019 Trial Tr. at p. 91 (ln. 10). This statement was
made in 2019. Since it is now 2021, it can be assumed that Director Willey has
been employed at DSPCL for roughly 28-29 years.
12
among other responsibilities, she “analyzes alcohol or blood alcohols for cases from
within New Castle County;”50 (3) she holds a Bachelor of Science degree in genetic
engineering, a second Bachelor of Science degree in biology, and a minor degree in
chemistry;51 (4) she has completed additional on-the-job courses that she had the
opportunity to attend through her employment in forensics with the State of
Delaware;52 and (5) she has analyzed blood samples for the past eleven (11) years.53
Director Willey is qualified as an expert concerning blood alcohol analysis, in both
collection and testing, by knowledge, skill, experience, training, and education.54
All of the statements above involve Director Willey’s personal experience in
testing Defendant’s blood sample here or are otherwise based on both her extensive
education and professional experience in performing HSGC testing. These
statements are relevant, reliable, and helpful to the jury in understanding the facts in
this case. Also, these statements would not create unfair prejudice to the Defendant,
or otherwise confuse or mislead the jury. These statements would also be helpful in
resolving, in light of Defendant’s issue concerning whether the blood tube was
inverted adequately to prevent coagulation, whether Defendant’s sample was
50
Id. (lns. 13-19).
51
Id. at p. 92 (lns. 1-3).
52
Id. (lns. 4-6).
53
Id. (lns. 14-15).
54
Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del.2006);
Tolson v. State, 900 A.2d 639, 645 (Del.2006).
13
adequately mixed and thus whether the Defendant’s HSGC test was conducted
properly.
There is no evidence that there is a minimum number of inversions required
to ensure an adequate mixture of the additive powders with the blood sample. Mr.
Patel has not proffered any evidence to support his contention. Director Willey has
previously stated there is no scientific evidence that a tube must be turned a specific
number of times to ensure mixture.55 The State supplies scientific studies in their
Answer;56 however, those “studies do not proscribe a specified number of inversions
and instead focus on the presence of absence of the preservatives.”57
Notably, the studies are relevant here. This body of scientific literature
demonstrates that the presence or absence of preservatives in blood alcohol
specimens either does not affect blood alcohol content or shows a slight decrease
over time.
The literature is persuasive as it shows that the absence of the preservative
would cause the BAC level in any given blood sample to either remain the same or
decrease over time. Most relevant here is, attached as State’s Exhibit G, the
Inferences and Legal Considerations Following a Blood Collection Tube Recall (the
55
State v. Dyron Green, July 9, 2019 Trial Tr. at p. 129 (lns. 11-13).
56
See State’s Answ., Ex. A-G.
57
State’s Answ. at ¶ 21.
14
“2020 Study”).59 The 2020 Study addressed the impact of a 2019 recall of BD
Collection Tubes, the same tubes used here, used in criminal prosecutions because
they did not contain preservatives or anticoagulant powder. After a review of
historical scientific studies on the subject, some of which is provided by the State,
the 2020 Study concluded that the “possibility of reporting falsely high blood ethanol
concentrations in gray-top tubes without anticoagulant and preservative is
overwhelmingly low when samples are taken from living persons.”60 Moreover, that
study also determined that, in the absence of a preservative, “[c]oncentrations of
ethanol, and many other drugs, actually decrease during storage.”61
The 2020 Study provides persuasive scientific evidence that the absence of a
preservative or anticoagulant in a given blood sample has little effect on the outcome
of the BAC level.
The relevant inquiry here is whether the sample is reliable. This inquiry is
resolved if it is determined that the sample is adequately mixed. The number of
inversions, as stated above, is not relevant here.
59
State’s Answ., Ex. G.
60
Id. at p. 3.
61
Id.
15
Conclusion
Director Willey is qualified in blood collection and testing, and therefore is
the proper person to authorize changes to the State’s collection procedures, the DSP
Instructions, in accordance with the Insert. For the reasons stated above, Mr. Patel’s
Motion in Limine is DENIED.
IT IS SO ORDERED.
______________________________
Judge Calvin L. Scott
16