State v. Wilson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. No. 2212001161
)
TEDDY WILSON, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Submitted: November 4, 2024
Decided: November 8, 2024

Defendant’s Motion to Suppress – Denied.
Defendant’s Motion in Limine – Denied.

Thomas J. Williams, Esquire, Department of Justice, attorney for the State.

Alicea A. Brown, Esquire, Office of Defense Services, attorney for Teddy Wilson.

Miller, J.
I. Introduction

After being involved in a traffic accident, defendant Teddy Wilson (“Wilson”)

was detained for suspicion of driving under the influence of alcohol. He was

transported to the police station where Corporal Fiore (“Fiore”), of the Delaware

State Police, administered a Horizontal Gaze Nystagmus test, which resulted in six

clues that Wilson was under the influence. After a period of observation, Fiore

administered an Intoxilyzer test, which revealed Wilson’s blood alcohol content was

.124%. He was arrested for driving under the influence.

Wilson filed a Motion to Suppress, seeking to exclude the results of the test

because there was no probable cause to administer it. Wilson challenges Fiore’s

observations of Wilson and asserts that Fiore failed to properly administer field tests.

If probable cause is found, Wilson challenges the State’s evidentiary

foundation for the admission of the Intoxilyzer test results because Fiore failed to

follow the strict 20-minute observation period.

Due to the failure to follow the standardized procedures for the Horizontal

Gaze Nystagmus test, the Court gives no weight to the test results. Even without

that test, however, probable cause existed to administer the Intoxilyzer test.

Further, the evidence shows that Fiore satisfied the 20-minute observation

period before beginning the Intoxilyzer test. Therefore, the Motion to Suppress and

the Motion in Limine are DENIED.

2
II. Factual Background1

A. Fiore observes Wilson at the scene.

On December 3, 2022, Fiore was dispatched to Governor Printz Boulevard in

response to a reported two-car collision. Fiore determined that a Chevrolet Malibu

and a Mazda, operated by Wilson, had been in a collision. The driver of the Malibu

reported that she was traveling in the right lane of southbound Governor Printz

Boulevard when the Mazda hit her car on the right side. The Malibu came to a rest

in a ditch off the northbound lanes of the boulevard. Fiore observed physical damage

to the Malibu consistent with the driver’s version of events.

Fiore’s interaction with Wilson was captured on his Body Worn Camera

(“BWC”),2 which was played at the suppression hearing. Wilson said he was exiting

his driveway onto Governor Printz Boulevard when he pulled out and the collision

occurred. Wilson denied hitting the Malibu. He initially denied consuming alcohol,

but later admitted to drinking a beer, five to six hours before the accident.

When he approached Wilson, Fiore “immediately detected the distinct odor of

an alcohol beverage emanating from his breadth while he spoke.” Wilson’s “eyes

were blood-shot, watery, and glassy.” Fiore noted that Wilson “was slurring and

1
The facts are derived from the evidence and testimony at the suppression hearing.
2
The BWC videos from Fiore and Corporal Marley, who was first on the scene, were admitted
into evidence.
3
mumbling” his speech “to the point it was almost not understandable.” Based on

these observations, Fiore believed Wilson was impaired.

Fiore asked Wilson if he “would do any kind of testing to see how intoxicated”

he was.3 Wilson refused to perform any field tests, stating he was not intoxicated,

and he was not going to “do[] all of that.” Fiore then detained Wilson and transported

him to Troop 1.

During Fiore’s interaction with Wilson at the scene, Wilson was cooperative

and had no difficulty walking or maintaining his balance.

B. Fiore conducts tests at the station.

1. The HGN test

Fiore testified that he is trained in administering Standardized Field Sobriety

Tests (“SFSTs”). He completed his police academy training in 2011, which included

40 hours of classroom training on the basics of National Highway Transportation

Safety Administration (“NHTSA”) guidelines. Additionally, he received a

certification in Advance Roadside Impaired Driving Enforcement, a federal program

sponsored by NHTSA, in 2015. Fiore is trained to administer three SFSTs: the

Horizontal Gaze Nystagmus4 (“HGN”), Walk and Turn, and One Leg Stand. Fiore

has conducted hundreds of DUI investigations.

3
D.I. 14, ¶ 2.
4
Nystagmus “is an involuntary jerking of the eye that becomes noticeable to the naked eye.” Being
impaired by drugs or alcohol is one cause for nystagmus.
4
i. The Guide’s5 procedures for administering the HGN test.

The HGN test is a standardized procedure that helps law enforcement evaluate

whether a person is under the influence of alcohol. The test has three components,

or “clues”: (1) Lack of Smooth Pursuit; (2) Sustained Nystagmus at Maximum

Deviation; and (3) Onset of Nystagmus Prior to 45 Degrees.

Under the NHTSA standards, officers are required to conduct a “pre-test,”

which evaluates pupil size, resting nystagmus, and equal tracking.6 If abnormal

findings are observed during the pre-test checks, the officer “may choose not to

continue with the testing [and] if HGN testing is continued, officers are reminded

this does not follow the standardized protocol and should acknowledge such in any

report.”7 The Guide also states that “[t]here should be a clear, distinguishable break

between the check for Equal Tracking and Lack of Smooth Pursuit,” the first

component of the test.8

Once the pre-check is complete, the officer preforms the test to check each

eye for each of the three clues, for a total of six possible clues: each eye must be

checked for each clue twice. The Guide states that observation of four or more clues

5
Wilson Ex. 1: DWI Detection and Standardized Field Sobriety Testing Instructor Guide,
published by NHTSA (the “Guide”), at p. 29.
6
Id.
7
Id.
8
Id.
5
indicates a likelihood that the subject’s blood alcohol content (“BAC”) is at or above

0.08 and if the procedures are followed, the test is 88% accurate.

ii. Fiore administers the HGN test.

Upon arrival at Troop 1, Wilson agreed to perform SFSTs. Fiore administered

the HGN test in a well-lit hallway. Fiore recounted how he conducted the HGN test,

which he testified he administered according to NHSTA standards. He instructed

Wilson on how to perform the test correctly9 and asked about glasses/contacts and

head injuries.10 Wilson complied with the instructions. Fiore looked for six clues

(three for each eye): Lack of Smooth Pursuit, Horizontal Gaze Nystagmus at

Maximum Deviation, and Onset Nystagmus Prior to 45 Degrees, testifying “if [the

clue is] there, it’s there. If it’s not, it’s not.” Four or more clues indicated

impairment. Fiore observed six clues and ruled out false positives, which confirmed

his suspicion that the Wilson was impaired. With the result of this test and what

Fiore observed of Wilson, Fiore believed he had probable cause to administer the

Intoxilyzer test.

9
Fiore instructed Wilson to stand with his feet together with his hands at his side, and informed
him that Fiore would be using a pen as the stimulus to track his eyes, and not to move his head
while he was doing so.
10
These questions are required by the NHTSA standards as they could impact the results of the
test. Wilson denied any head injuries and stated he was not wearing contacts. He was not wearing
glasses at the time of the test.
6
Fiore administered the Vertical Gaze Nystagmus (“VGN”) but did not observe

any clues. Fiore did not administer any other SFSTs, the “ABC Test,” or the

“Counting Test.”11

On cross-examination, Fiore was unable to recall whether four or more clues

indicated an 88% testing accuracy. He testified that he held the stimulus (a pen)

about 12-15 inches away from Wilson at eye level and moved it back and forth,

starting at center and moving to the far right, back to center, then to the far left and

back to center again.12 In the first two passes, Fiore was checking for both Equal

Tracking and Lack of Smooth Pursuit. He testified that this is “the way I’ve done

it.” Upon review of the Guide, Fiore admitted that one pass is required for Equal

Tracking, followed by two passes for the Lack of Smooth Pursuit clue. Each eye

must be checked twice for each clue, so a total of six full passes are required. With

the separate Equal Tracking pass, a total of seven passes are required. Fiore admitted

that he completed only six passes.

2. Fiore administers the Intoxilyzer test.

After the HGN and VGN tests were completed, Fiore asked Wilson if he was

suffering from any injuries to his legs that would prevent him from walking a straight

11
Fiore did not administer the finger-to-nose test. He was not trained on that test.
12
This is one pass as Fiore testified. Defense counsel counted a movement from center to the far
right and back to center as one pass and the movement to the left and back to center was a second
pass. While Fiore and counsel counted in a different manner, in practical terms, the count was the
same.
7
line. Wilson responded that his left knee was “bothering” him. Fiore told Wilson

that, for his safety, no further tests would be administered, including the Walk and

Turn test. Fiore then asked Wilson if he would blow into the machine (which was

in the room next to where they were standing). Wilson said he would but, he wanted

Fiore to administer the walk test, asserting he was not intoxicated. Wilson continued

to request the walk test, and Fiore explained that it could not be administered due to

the leg injury.13

Wilson walked into the room where the Intoxilyzer machine was located and

sat in a chair. Fiore sat with Wilson. After an observation period, Fiore administered

the Intoxilyzer test, which recorded a BAC of .124%. Wilson was arrested.

On cross-examination, Fiore testified that a subject must be observed for 20

minutes before an Intoxilyzer test can be administered. He usually waits 24 minutes

to be sure he has satisfied the wait period. He thought he observed Wilson “four

minutes after the 20 minute-ish” period.” But he was “not entirely sure. [He]

thought it was 24.”

Fiore was asked when the observation period began. He first testified that the

observation period started when Wilson was walking into the Intoxilyzer room.

When asked if the period started when Wilson sat in the chair, Fiore testified “He

13
Fiore testified that NHSTA cautions against doing such tests when there is an injury to avoid false
positive results.
8
doesn’t have to sit down. I could watch him while doing the tests … I mean, once

the tests were stopped, he couldn’t do the tests anymore, I can continue to watch him

at that point.” When asked if the observation period started when he was in the hall

talking with Wilson after the HGN test was completed, Fiore responded: “I assume

it would.”

Fiore’s report reflected that the Intoxilyzer test ended at 22:54 (the time stamp

on his BWC). Fiore then subtracted 24 minutes to determine that the observation

period began at 22:30. Under further questioning on cross-examination, Fiore

testified that he “began the observation period” when he told Wilson that he (Fiore)

was not administering the Walk and Turn test, which was at 22:30.

Wilson entered the Intoxilyzer room at 22:31, with Fiore following behind. Fiore

turned on the Intoxilyzer machine, took a seat next to Wilson, wrote notes, used the

computer for about a minute, and conversed with Wilson from time to time. At 22:51

Fiore inserted the Intoxilyzer card into the machine.

III. Motion to Suppress

A. The parties’ contentions

Wilson filed a Motion to Suppress the Intoxilyzer test for lack of probable

cause because Fiore failed to administer SFSTs in strict compliance with NHTSA

guidelines.14 First, Fiore administered only the HGN test and did not administer the

14
D.I. 15.
9
Walk and Turn test or the One Leg Stand test, despite Wilson’s willingness to

undergo such SFSTs. Second, Fiore failed to follow the NHTSA guidelines when

he conducted the HGN test.15 Without any properly administered SFSTs, and no

other factors (demeanor, speech, ability to walk) indicating that Wilson was

intoxicated, he argues Fiore did not have probable cause to administer the

Intoxilyzer.

The State responds that probable cause existed based on the strong odor of

alcohol, Wilson admitting he had consumed a beer, his glassy/watery/bloodshot

eyes, his mumbled and slurred speech, his having committed a traffic violation, and

the results of the HGN test. The State further argues that even if the HGN test was

not administered in strict compliance with the NHTSA guidelines, the results are not

to be excluded. Rather, any deviations from the guidelines go to the weight the

evidence is given by the Court.

B. Standard of review

An Intoxilyzer test is a search, and therefore, it is subject to Fourth

Amendment protections.16 Accordingly, an officer cannot administer an Intoxilyzer

test without “probable cause to believe that the person was driving while under the

15
D.I. 21.
16
State v. Speicher, 2022 WL 2339865, at *2 (Del. Super. June 29, 2022), citing Schmerber v.
California, 384 U.S. 757, 767 (1996) and Bease v. State, 884 A.2d 495, 498 n.4 (Del. 2005).
10
influence of alcohol...”17 “Probable cause exists where the facts and circumstances

within the police officer’s knowledge, and of which the police officer had reasonably

trustworthy information, are sufficient in themselves to warrant a person of

reasonable caution to believe that an offense has been or is being committed.”18

“The finding of probable cause does not require proof beyond a reasonable doubt,

or even that the defendant’s guilt is more likely than not.”19 Rather, it is measured

by the totality of the circumstances;20 it is a “common-sense determination.”21 The

State bears the burden to prove the existence of probable cause.22

In a DUI case, “‘the arresting officer must articulate facts considered in the

totality of the circumstances that suggest there is a fair probability that the driver is

under the influence.’”23 Probable cause may be based on a number of factors, such

as: “commission of a traffic offense, odor of alcohol, ... rapid speech, ... admission

to drinking alcohol, dazed appearance[,]”24 “commit[ing] multiple traffic

violations…; …detect[ing] a strong odor of alcohol emanating from Defendant…;

… glassy, watery, and dazed [eyes]…; … [a] confused [demeanor]…; … evasive

answers…; trouble standing…; admitt[ing] to drinking…; [a] flushed face, …

17
Id., at 498.
18
Id.
19
State v. Dale, 2016 WL 691445, at *2 (Del. Super. Feb, 11, 2026).
20
State v. Maxwell, 624 A.2d 926, 928 (Del. 1993).
21
Speicher, 2022 WL 2339865, at *2, quoting Edwards v. State, 320 A.2d 701, 703 (Del. 1974).
22
State v. Kang, 2001 WL 1729126, at *3 (Del. Super. Nov. 30, 2001).
23
Speicher, 2022 WL 2339865, at *2, quoting Rybicki v. State, 119 A.3d 663, 670 (Del. 2015).
24
Miller v. State, 4 A.3d 371, 375 (Del. 2010).
11
slurred speech, and stagger[ing].”25 Although any one of these factors “considered

in isolation, may be insufficient to establish probable cause[,]”26 combined, they may

establish probable cause in the totality of the circumstances. A traffic violation and

an odor of alcohol alone, however, are insufficient to establish probable cause.27

“Whether probable cause exists to arrest a driver for a DUI offense is generally

decided by the arresting officer’s observations, which frequently include the quality

of the driver’s performance on field sobriety tests.”28 NHTSA developed

standardized methods for conducting field tests. While strict compliance with the

standard procedures is required, failure to strictly comply with the standards does

not necessarily invalidate the test results. Rather, “‘[t]he Court’s role is to take note

of the deficiencies in the administration of the sobriety test when giving weight and

value to the tests performed.’”29 Significant deviations from the standard

procedures, however, may result in the test being disregarded.30

25
State v. Oseguera-Avila, 197 A.3d 1050, 1058-59 (Del. Super. 2018) (emphasis in original).
26
Speicher, 2022 WL 2339865, at *3, quoting Maxwell, 624 A.2d at, 931.
27
Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011) (“[A] traffic violation combined with an odor of
alcohol, standing alone, do not constitute probable cause to arrest the driver for a DUI offense.”)
28
Id., 19 A.3d at 293.
29
State v. Dale, 2016 WL 691445, at *3 (Del. Super. Feb, 11, 2016) (citation omitted).
30
Id., at *2 (the court disregarded HGN test where it was conducted in 60% of the time required
and in poor lighting); Oseguera-Avila, 197 A.3d at 1056 (suppressing VGN test because it was not
administered for the minimum required four seconds).
12
C. Discussion

When conducting the HGN test, the NHTSA standards require a pre-test,

during which the officer evaluates pupil size to see if they are the same, looks for

resting nystagmus, and determines whether the eyes are tracking the stimulus, i.e.,

Equal Tracking.31 The pre-test is sufficiently important that if abnormal findings are

observed and the test is continued, the officer is reminded in the Guide that this does

not follow standardized protocol, which should be acknowledged in the officer’s

report.32 Also, there is to be a clear, distinguishable break between the Equal

Tracking pre-test and the start of the test to look for clues.33

In response to Fiore’s admission that he did not follow the standardized

procedure for the HGN test, the State argues that the Court should just disregard the

Lack of Smooth Pursuit clue, which leaves four clues; sufficient for an indication

that Wilson’s BAC was likely over the legal limit. This, however, ignores the

importance of the pre-test, as established by the Guide. Indeed, if any abnormality

in the pre-test is found, the remainder of the test is not in compliance with the

standardized procedures. Thus, skipping over this validation impacts the results of

the remainder of the test that looks for clues.

31
Guide, at p. 29.
32
Id. (emphasis added).
33
Id.
13
Combining or “doubling up” on the pre-test and the Lack of Smooth Pursuit

test, as the State argues, is a significant deviation from the standardized procedures.

Due to the failure to follow the pre-test procedures and a lack of clear,

distinguishable break between the pre-test and first test, the Court gives no weight

to the HGN test results.

The State argues that probable cause exists even without the HGN test. It

argues that Fiore’s observations of Wilson, including the odor of alcohol, the

admission to consuming alcohol, Wilson’s slurred speech, and his traffic violation

are sufficient probable cause to administer the Intoxilyzer test. The State relies on

Bease v. State,34 where the court found probable cause based on the officer’s

observations and rational inferences drawn therefrom, that the defendant “spoke in

a rapid manner…, smelled of alcohol, admitted [to] consum[ing] alcoholic beverages

the night before, had bloodshot and glassy eyes, and had just committed a traffic

violation by making an improper lane change in an abrupt manner.”35

Wilson responds that he was cooperative and had no issue with his balance.

He disputes that he spoke with slurred speech. Wilson asks the Court to compare

his speech in the BWC with his speech in the courtroom during a colloquy before

the suppression hearing started. He suggests to the Court that his speech was the

34
884 A.2d 495 (Del. 2005).
35
Id., at 499-500.
14
same, thus, his typical speech pattern is not an indication of intoxication. Further,

without any properly performed SFSTs, the State did not have probable cause.

Consistent with Bease,36 the Court finds that probable cause existed to

administer the Intoxilyzer test. Fiore testified credibly about his observation of

Wilson. Fiore noted a “distinct odor” of alcohol coming from Wilson as Fiore

approached Wilson. Wilson’s eyes were bloodshot, watery, and glassy. Fiore

described Wilson’s speech as being slurred. Even if the Court were to find that

Wilson’s speech typically sounds a bit slurred, as the defense suggests, that does not

negate the officer’s assessment of his observations of Wilson, under the totality of

the circumstances.37 Finally, Wilson committed a traffic violation by failing to yield

to the Malibu before he entered the roadway. Accordingly, the Motion to Suppress

is DENIED.

IV. Motion in Limine

During the suppression hearing, Wilson made an oral motion in limine to

exclude the results of the Intoxilyzer test for failure to provide a proper foundation

for the admissibility of the test results due to a failure to conduct a 20-minute

observation period. The Court allowed the parties to develop evidence relating to

36
See also Higgins v. Shahan, 1995 WL 108699 (Del. Super. Jan. 18, 1995); Silverman v. Shahan,
2002 WL 31999363, at *2 (Del. Com. Pl. Jan. 2, 2002).
37
Negative or mixed field test results do not negate probable cause based on other factors.
Lefebvre, 19 A.2d at 295. So Wilson’s argument that Fiore should have performed more tests, as
Wilson was requesting, does not impact the conclusion that probable cause existed.
15
the observation period. After the hearing, the Court directed the parties to file written

submissions addressing the motion in limine.38

The State objected to the Court considering the motion in limine because the

hearing was to determine whether probable cause existed and therefore, the

observation period was irrelevant. The State identified no prejudice by the Court

considering the motion prior to trial.

The Supreme Court made clear in Clawson v. State that an objection

concerning the 20-minute observation period is an evidentiary issue that may be

raised “either by pretrial motion or by an objection at trial.” 39 Because the parties

were provided a full opportunity to develop an evidentiary record and argue the

motion, and to avoid delay at trial (which is scheduled to being in a few days), the

Court will address the motion in limine.

A. The parties’ contentions

Wilson seeks to exclude the results of the Intoxilyzer test because the State

failed to satisfy the bright-line rule established in Clawson, that a subject must be

observed for 20 uninterrupted minutes before the test can be administered. The

Clawson court made clear that the Intoxilyzer test starts when the officer puts the

card into the machine.

38
D.I. 27, 28, 30.
39
867 A.2d 187, 191-92 (Del. 2005) (citation omitted).
16
Wilson argues that Fiore “could not point to the exact time that his observation

period of Mr. Wilson began, but instead claimed that his observation was continuous

from the field sobriety tests through the administration of the Intoxilyzer test.”40 It

is undisputed that Fiore inserted the Intoxilyzer card into the machine at 22:51.

Thus, Wilson asserts the observation period began at 22:31 “at the very latest.”41

But, after Fiore sat next to Wilson in the Intoxilyzer room, he started the machine

and took notes. At 22:32 Fiore turned his attention to observing Wilson, however,

about thirty seconds later, he used the computer for approximately 57 seconds.

Wilson concludes that because requisite 20-minute observation period was not met,

and the quality of Fiore’s observation was inadequate, the results of the Intoxilyzer

test should be inadmissible.

The State responds that Fiore did observe Wilson for the requisite 20-minute

period. The State contends that the observation period began at 22:26, before Fiore

started the HGN test and thus, more than 20 minutes elapsed before the card was

inserted into the machine.42 The State also argues that while the duration of the

observation period is subject to a bright-line rule, the quality of the observation is

not, and Fiore was not required to have a “fixed gaze” on Wilson. Therefore, the

proper foundation has been laid, and the test is admissible.

40
D.I. 28, ¶ 7.
41
Id. ¶ 8.
42
D.I. 30, ¶ 10.
17
B. Standard or review

The Clawson court addressed whether failure to meet the manufacturer’s

requirement of an uninterrupted 20-minute observation period before administering

an Intoxilyzer test was a foundational perquisite to the admissibility of the test

results. The Clawson court found the rationale of Holland v. Voshell and State v.

Subrick to be persuasive.

The 20-minute rule was first articulated in Holland, where the court held that

a “‘failure to demonstrate that there was a period of twenty minutes when [a]

defendant [is] observed by the officer is a failure by the officer to follow the

procedure required in the manufacturer’s instructions.’”43 Subrick held “the twenty

minute observation period established in Holland must be completed prior to

inserting the [I]ntoxilyzer card, which begins testing.”44

The Supreme Court in Clawson held that “in order for the result of the

[I]ntoxilyzer test to be admitted, the State must lay an adequate evidentiary

foundation showing that there was an uninterrupted twenty minute observation of

the defendant prior to testing [and] that testing commenced when the officer inserts

the [I]ntoxilyzer card into the machine.”45 The purpose of the 20-minute observation

43
Clawson, 867 A.2d at 192, quoting Holland, C.A. No. 86A-AP2, slip op. at 1 (Del. Super. Sept.
3, 1986) (modification in original).
44
Id., citing Subrick, C.A. No. 93-12-0496, Slip. Op. at 3 (Del. Com. Pl. Feb. 8, 1994).
45
Id.
18
period is to ensure “that the mouth cavity is cleared of residual alcohol or other

contaminates that may enter the mouth via smoking, eating, or drinking, or through

regurgitation of material already in the body.”46

While the quantitative demand of the observation period is subject to a bright-

line test, the qualitative is not. The officer is not required to have a “fixed gaze” on

the subject during the observation period. However, “the observation requirement

cannot be satisfied where there is a lapse in an officer’s visual or aural monitoring

significant enough that the officer could miss the occurrence of eating, drinking,

smoking, or regurgitation.”47

C. Discussion

It is important to know when the observation period started to ensure that the

Intoxilyzer test is not started before the expiration of the full 20-minute observation

period. Fiore was not clear on when the observation period started. He testified

when the period “could” have started and that he waited about four minutes after the

“20-ish” minute period. He testified that in his report he indicated the period started

at 22:30, which he derived from subtracting 24 minutes from when the test was

completed. “Backing into” the start time in this manner is insufficient.

46
Webb-Buckingham v. State, 2009 WL 147020, at *3 (Del. Super. Jan. 22, 2009).
47
Id., at *5 (Del. Super. Jan. 22, 2009); see also State v. Sullivan, 2017 WL 2256622 (Del. Com.
Pl. May 23, 2017) (20-minute observation period not satisfied where it was interrupted when the
defendant went into a private room to talk with his lawyer).
19
However, with the benefit of the BWC, we know the Intoxilyzer test started

at 22:51. Therefore, to satisfy the bright-line test, the observation period had to start

by 22:31. At 22:31, the HGN and VGN tests were complete and Wilson was facing

Fiore as they continued to discuss why other SFSTs were not being administered.

Wilson’s back was to Fiore briefly as they walked into the room. Fiore sat a few feet

from Wilson for the duration. During this period, there was no lapse in Fiore’s visual

or aural monitoring of Wilson.

While Fiore wrote some notes and worked on the computer for approximately

57 seconds, this is not a sufficient disruption in the observation period. Fiore would

have been able to observe if Wilson smoked, drank, ate, or regurgitated and there is

no suggestion that he did.

The Court finds that the 20-minute observation period is satisfied and the State

has carried its burden to lay a foundation for the admissibility of the Intoxilyzer

results. The Motion in Limine is DENIED.

IT IS SO ORDERED.

/s/Kathleen M. Miller
Kathleen M. Miller, Judge

20