State v. Brown

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. No. 2403014753
)
)
LAMBERT A. BROWN, )
)
Defendant. )

Date Submitted: September 8, 2025
Date Decided: December 3, 2025

OPINION AND ORDER

Upon Defendant’s Motion to Suppress – Denied
Upon the State’s Motion in Limine – Granted

Barzilai K. Axelrod, Esquire, Nicoli Goncalves, Esquire, Department of Justice,
attorneys for the State.

Brain J. Chapman, Esquire, Law office of Brian J. Chapman, attorney for Lambert
A. Brown.

Miller, J.
I. Introduction

A. Motion to suppress

After his arrest and indictment for driving under the influence,1 Defendant

Lambert A. Brown (“Brown”) moves to suppress the results of his Intoxilyzer 9000

(or “I-9000”) breath test (“Brown’s Motion”). Brown argues that Corporal Agnor

(“Agnor”)—Brown’s arresting officer—did not have the requisite probable cause to

compel a chemical breath test, and accordingly, the results of the test must be

suppressed. The State argues that Agnor’s observations and the results of various

field tests are more than sufficient to establish probable cause.

The breath test followed Agnor observing Brown committing several driving

violations, interacting with Brown during the traffic stop, and Brown showing

indications of impairment during multiple roadside field tests. Under the totality of

the circumstances, the Court finds probable cause existed to administer the breath

test. Accordingly, Brown’s Motion is DENIED.

B. Motion in Limine

In January 2024, the Delaware State Police Crime Laboratory (the “DSPCL”)

deployed a new evidentiary breath testing device—the Intoxilyzer 9000. The State’s

Motion in Limine seeks two rulings on the admissibility of the Intoxilyzer 9000 test

1
D.I. 50.
2
results. First, the State contends that the Intoxilyzer 9000’s results are admissible

under Delaware Rule of Evidence 702 because the new device is scientifically

reliable. The I-9000 uses the same tested-technology used by its predecessor, the

Intoxilyzer 5000 (or “I-5000”) and thus the evidence is properly admissible under

Rule 702 and Daubert.

Second, the State seeks a ruling that the test results are admissible because the

device used to test Brown was in proper working order (as shown by the calibration

records), and Agnor was properly trained. The State bears the burden to establish

the admissibility of the test results.

Brown contends that the State has offered insufficient evidence to establish

such reliability and therefore, failed to satisfy its burden.

Guided by Daubert, the Court finds that the State has established the I-9000’s

reliability. The Intoxilyzer 9000 uses the same infrared spectrometry technology as

the I-5000, a device previously validated and used by the DSPCL for thirty-six years

before upgrading to the I-9000. The I-9000 provides enhanced features that further

ensure reliable results and provides a user-friendly, step-by-step process.

The Court finds that the State also satisfied its burden to admit Brown’s test

results. The State detailed Agnor’s training and provided evidence of the device’s

calibration certifications. Accordingly, the State’s Motion in Limine is GRANTED.

3
II. Factual background2

A. Agnor’s background and training3

Agnor is a 19-year veteran of the Delaware State Police.4 He was initially

trained and certified to serve as a Delaware State Trooper, then he worked in the K-

9 unit, and at the time of the events at issue, he served as a patrol officer.5 Agnor

estimates that he has conducted several thousand traffic stops,6 including over 100

driving under the influence (“DUI”) investigations.7

Agnor’s training began at the Delaware State Police academy—a full-time,

six-month, live-in academy.8 While at the academy, Agnor completed a 40-hour,

week-long DUI detection training class.9 This training included education on

observable driver behaviors that indicate an impaired physical or mental state, and

how to administer several tests to determine driver impairment.10

Agnor was trained to recognize clues the National Highway Transportation

Safety Administration (“NHTSA”) has deemed to be common effects of a driver’s

2
This decision cites to the evidentiary hearing transcript on March 25, 2025 (“Mar. 25 Tr.”) and
March 26, 2025 (“Mar. 26 Tr.”), the parties’ pre-evidentiary hearing briefing D.I. 21 (Mot. in
Limine), D.I. 28 (“Brown’s Mot.”), D.I. 30 (“State Resp.”), the parties’ post evidentiary hearing
briefing D.I. 36 (“State Op.”), D.I. 37 (“State Reply”), and D.I. 38 (“Brown’s Ans.”), and exhibits
submitted by the State during the evidentiary hearing (“State Ex.” number).
3
The facts are derived from Agnor’s testimony during the evidentiary hearing on March 25, 2025.
4
Mar. 25 Tr. at 8.
5
Id. at 8–9.
6
Id. at 10.
7
Id.
8
Id. at 11.
9
Id. at 11–12.
10
Id.
4
impaired physical or mental state.11 As Agnor explained, there are four NHTSA

categories: (1) failure to maintain lane; (2) speed and breaking issues, including

driving at a speed slower than 10 miles below the speed limit; (3) judgment issues;

and (4) vigilance problems.12

Agnor was trained in pre-exit or pre-arrest tests.13 Agnor utilizes these tests

at the outset of a DUI investigation to gain information about the possible impaired

state of the driver.14 The tests include the counting test, the finger dexterity test, and

the alphabet test.15

Similarly, Agnor was trained to administer Standardized Field Sobriety Tests

(“SFSTs”). SFSTs include the Horizontal Gaze Nystagmus (“HGN”), Walk and

Turn (“WAT”), and One Leg Stand test (“OLS”).16 Each of the SFSTs consist of

standardized procedures that help law enforcement identify validated indications of

impairment. Agnor also received a certification in Advance Roadside Impaired

Driving Enforcement (“ARIDE”), a federal program sponsored by NHTSA, which

consists of a two-day 16-hour course.17 During his ARIDE training, Agnor received

a refresher on SFSTs and training on the lack of convergence (“LOC”) test.18

11
Id. at 12.
12
Id. at 12–13.
13
Agnor used “pre-exit” and “pre-arrest” interchangeable when referring to these tests.
14
Id. at 14.
15
Id. at 14–15.
16
Id. at 15–16.
17
Id. at 17.
18
Id.
5
Additionally, Agnor received training and subsequent certification on the use

of two Intoxilyzer devices. At the academy, he was trained on the Intoxilyzer 5000

and in 2022, Agnor was trained on the now-deployed Intoxilyzer 9000.19 The

trainings consisted of instruction on use of the device and hands-on experience,

directed by a state chemist.20

B. Agnor observes Brown’s driving.

The State played Agnor’s motor vehicle recorder (“MVR”) and body-worn

camera (“BWC”) video recordings during the hearing, 21 with Agnor providing

additional commentary. The following facts are derived from the videos and

Agnor’s testimony.

Around 8:00 p.m. on March 28, 2024, Agnor was travelling southbound on

Route 13 when he noticed a car (operated by Brown), travelling approximately 37–

45 miles per hour (“MPH”) in a 55 MPH zone.22 This portion of Route 13 consists

of two lanes in the southbound direction, bounded with yellow lines and separated

by a dotted white line.23 There was very little traffic on the road.24

19
Id. at 19, 95.
20
Id.
21
State Ex. 1 (MVR recording); State Ex. 2 (BWC recording).
22
Mar. 25 Tr. at 24.
23
Id. at 24–25.
24
Id. at 25. Agnor testified that Brown was impeding traffic due to his slow driving. A review of
the MVR video reveals that any possible impediment created by Brown would be, at most, minimal
as there was very little traffic on the road.
6
Agnor continued to observe the vehicle, watching it change lanes from the

right lane to the left lane, without signaling.25 The driver had significant difficulty

maintaining the vehicle in one lane—the vehicle crossed the left yellow line, drifted

back across toward the center line, then touched or crossed the dotted lane line

several times, only to drift back over the yellow line.26

C. The traffic stop

After observing the vehicle for a period of time, Agnor activated the marked

police vehicle’s emergency lights to initiate a traffic stop.27 Despite the emergency

lights, the driver continued, making no indication that he was aware of the police

vehicle behind him.28 While some drivers continue driving in order to pull over in

a well-lit area, they usually signal this intent to the officer in some manner—such as

giving a wave or engaging the car’s hazard lights.29 Brown, however, failed to

acknowledge the need to stop his vehicle. Agnor followed the vehicle for

approximately half a mile before it signaled, pulled into a gas station, and came to a

stop.30

25
Id. at 27.
26
Id. at 27–28.
27
Id. at 28.
28
Id. at 29.
29
Id.
30
Id.
7
Upon contact with Brown, Agnor observed that Brown’s eyes were glassy,

watery, and bloodshot.31 As standard procedure, Agnor asked Brown for his license,

registration, and proof of insurance. Brown refused to provide these items.32 Agnor

then asked Brown to step out of the vehicle.

1. The pre-arrest tests

After a brief escalation,33 during which Agnor detected a faint smell of alcohol

emanating from Brown’s breath,34 Agnor continued his investigation. Starting with

the pre-arrest tests, Agnor administered the alphabet test, directing Brown to recite

the alphabet starting with “E” and stopping at “R.”35 Brown transposed and missed

letters.36

Agnor then moved to the counting test, instructing Brown to count down from

57 to 43.37 Brown transposed a couple of numbers and continued counting to 40.38

31
Id. at 39.
32
Brown later provided the requested information.
33
When Brown exited the vehicle, Agnor asked Brown if he had any weapons on him. Brown
said nothing but turned to raise his shirt to show the officer that he had a work knife in his pocket.
Not knowing what Brown was intending, Agnor saw Brown’s move towards his waist as
threatening and placed Brown in handcuffs. After further discussion, the situation de-escalated
and Agnor removed the cuffs to continue the investigation. Brown was cooperative thereafter.
34
Id. at 41.
35
Id. at 52.
36
Id. at 54–55. Brown went from “H” directly to “R.”
37
Id. at 55.
38
Id. at 56.
8
Agnor next instructed Brown on the finger dexterity test, which requires the

subject to touch the tip of his thumb to the tip of each of his fingers in a 1, 2, 3, 4

then 4, 3, 2, 1 sequence.39 Brown correctly completed this test.40

2. The SFSTs

Agnor progressed to the SFSTs.41 Each of the SFSTs has a predetermined set

of clues. As Agnor explained, a display of two or more clues for any one of the

SFSTs indicates a high likelihood of impairment.42

Agnor began with the WAT test. For this test, Brown was to complete nine

heel-to-toe steps in a straight line, with his arms to his sides, turn, and repeat the

same sequence back.43 Of the eight possible clues, Brown exhibited seven.44 Due

to the position of the BWC on the center of the officer’s chest, some of the clues

Agnor observed are not visible on the recording.45

Agnor then administered the OLS. For this test, Brown was to raise one foot

roughly six inches off the ground, keep both legs straight, with arms to his side, and

count out loud until Agnor told him to stop.46 Agnor observed to see if Brown could

39
Id. at 56.
40
Id. at 57.
41
Id.
42
Id. at 61, 64, 94.
43
Id. at 59–60.
44
The seven clues exhibited were: (1) cannot keep balance while listening to instructions; (2) starts
to soon; (3) does not touch heel-to-toe; (4) steps off the line (5); uses arms to balance; (6) improper
turn; and (7) incorrect number of steps. Id. at 63.
45
Id. at 62.
46
Id. at 64.
9
hold the position for approximately 30 seconds. Brown exhibited all four possible

clues: Brown hopped, used his arms to balance, put his foot down, and swayed after

7 seconds.47

Finally, Agnor attempted the HGN test, but admitted during his testimony that

he failed to administer the test to the standards required by NHTSA.48

3. Additional roadside tests

As a final physical test, Agnor administered the LOC test. This test measures

the ability of a subject to focus on an object held in front of the person, then moving

it towards the subject’s eyes.49 It tests whether the eyes converge on the stimulus to

focus on it. Brown’s eyes did not converge, but Agnor did not provide any testimony

on how the test was administered.

Having finished the physical tests, Agnor asked Brown if he had anything to

drink recently. While previously indicating he had not drunk alcohol, Brown now

admitted that he had.50 With that admission, Agnor administered a preliminary

breath test (“PBT”) to gain an indication of Brown’s blood alcohol content (“BAC”)

through the use of the portable device.51 The device was Agnor’s on-scene partner’s,

47
Id. at 65.
48
Agnor asserted that he did observe nystagmus in Brown but cannot be sure of the exact amount
because he went through the test “really quickly.” Id. at 66–67.
49
Id. at 67.
50
Id. at 68.
51
Id. at 69.
10
but Agnor administered the test.52 Calibration records, admitted through Agnor,

show that the device was calibrated on March 10, 2024 (before Brown’s March 28

arrest) and again on April 7, 2024.53 Agnor was not present for the calibrations.

Both records show that the PBT was properly functioning.

To obtain a BAC measurement, Brown had to blow into the device through a

straw. It appeared to Agnor that Brown was attempting to avoid blowing into the

device.54 After some difficulty, Brown provided a proper exhale. Brown’s reading

was 0.13, above the 0.08 legal limit.55

D. Agnor’s inventory search

After the PBT result, Agnor detained Brown and began an inventory search

of his vehicle.56 Agnor discovered two open bottles of alcohol.57 Brown would later

admit that he recently purchased one of the bottles at a nearby liquor store. Other

than this admission, Agnor acknowledged he did not know how long the bottles had

been in the vehicle.58

52
Id. at 69, 72.
53
State Ex. 3 (PBT calibration log). Willey testified that the PBTs are calibrated monthly using a
dry gas standard. Id.at 12.
54
Brown was sucking in air instead of blowing into the straw.
55
Id. at 72–73.
56
Id. at 73
57
Id. at 73–74.
58
Id. at 74.
11
E. Brown’s Intoxilyzer 9000 test

Having determined that Brown exhibited numerous indications of a high

probability of impairment, Agnor transported Brown to Troop 9 for testing on the

Intoxilyzer 9000.59 Agnor started the I-9000, which began with internal diagnostics.

Agnor scanned the barcode on his certification card—which he obtained after

completing the Intoxilyzer 9000 training—and the barcode on Brown’s license.60

After Brown’s information was inputted through the license scan, the device’s

internal twenty-minute timer began.61

Agnor observed Brown62 for the twenty-minute period to ensure that the

results could not be skewed or contaminated by any extraneous factors.63 Agnor

then administered the test, following the step-by-step, on-screen instructions—

taking two samples, two minutes apart.64 Both samples registered a BAC of 0.122.65

Brown was arrested and charged with driving under the influence, a minimum speed

violation, failure to maintain lane, and failure to signal, among other charges.

59
Id. at 74–75.
60
Id. at 155.
61
Id.
62
The entire testing process was captured on Agnor’s BWC.
63
Mar. 25 Tr. at 156.
64
A more detailed description of the test is discussed below.
65
State Ex. 7 (Brown’s Intoxilyzer 9000 chemical test report).
12
III. Motion to Suppress

A. The parties’ contentions

Brown seeks to suppress the Intoxilyzer 9000 breath test results,66 arguing that

Agnor did not have the requisite probable cause to subject him to the chemical test.67

To support his contention, Brown asserts Agnor’s bases for the initial stop (the traffic

violations) are not indicative of impairment.68 Brown further asserts that the HGN

test results are insufficient to show probable cause due to an eye condition from

which he suffers. Thus, the test has no evidentiary value.69 He also argues his

deficiency on the other field tests, based on the totality of circumstances, does not

rise to the level of probable cause for two reasons. First, the pre-arrest tests are not

scientifically validated by NHTSA.70 Second, Agnor’s BWC did not capture the

entirety of the WAT test and therefore, he urges the Court to consider this in

weighing the evidence.71

66
See generally Brown’s Mot.; Brown’s Ans.
67
Brown’s Mot. ¶ 4; Brown’s Ans. ¶ 11.
68
Id.
69
Brown’s Mot. ¶ 4. Brown submits that he has a detached retina in his right eye that affected his
ability to follow the stimulus. The State argues that Brown has shown no evidence of such a
condition or that it would invalidate the test on both eyes. Id. In any event, the State does not rely
on the HGN test for a finding of probable cause. State Reply ¶ 29. The Court will not consider this
test in deciding Brown’s Motion.
70
Brown’s Ans. ¶ 12.
71
Id. ¶ 13.
13
Brown challenges the PBT results based on Agnor not personally calibrating

the device.72

Finally, Brown argues that the bottles of alcohol found during the inventory

search are not relevant because the search occurred after Brown’s arrest.73 And,

because the State did not establish when or if Brown consumed alcohol from these

bottles, the presence of the bottles did not tend to show that Brown was driving

impaired.74

The State responds that under the totality of the circumstances, Agnor had

probable cause to administer the Intoxilyzer test.75 The State points to Brown’s

driving violations, which Agnor was trained to recognize as clues of impaired

driving.76 The State contends that the results of the pre-arrest tests are valid for a

finding of probable cause, even though not scientifically validated by NHTSA.77

Further, that Agnor’s camera did not capture all aspects of the WAT test does not

invalidate the test or its results.78 Finally, the inventory search was conducted while

the investigation was still ongoing, so it is proper to consider the alcohol bottles in

72
Id. ¶ 7.
73
Id. ¶ 14.
74
Id.
75
State Reply ¶ 18.
76
Id. ¶¶ 21–26.
77
Id. ¶¶ 27–31.
78
Id. ¶ 31.
14
the totality of the circumstances. Even excluding the bottles, the State concludes,

there is sufficient evidence to support a finding of probable cause.79

B. Standard of review

An Intoxilyzer breath test is a search subject to Fourth Amendment

requirements and procedures.80 Accordingly, an officer must first have “probable

cause to believe that the person was driving under the influence of alcohol” before

administering the test.81 “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.”82

Probable cause is measured “not by precise standards, but rather by the totality of

the circumstances.”83 Fundamentally, probable cause is a “common-sense

determination”84 and allows officers to rely on “their training, experience, their

investigation, and rational inferences drawn therefrom[.]”85 It is the State’s burden

to establish probable cause.86

79
Id. ¶ 32.
80
State v. Wilson, 2024 WL 4719651, at *4 (Del. Super. Nov. 8, 2024); Bease v. State, 884 A.2d
495, 498 n.4 (Del. 2005).
81
Wilson, 2024 WL 4719651, at *4 (quoting Bease, 884 A.2d at 498).
82
Id.
83
State v. Speicher, 2022 WL 2339865, at *2 (Del. Super. June 9, 2022) (internal citations and
quotations omitted).
84
Id. (quoting Edwards v. State, 320 A.2d 701, 703 (Del. 1974)).
85
Speicher, 2022 WL 2339865, at *2 (quoting State v. Maxwell, 624 A.2d 926, 930 (Del. 1993)).
86
Wilson, 2024 WL 4719651, at *4.
15
In the context of a DUI, the relevant inquiry is whether the totality of

circumstances suggest “a fair probability that the driver is under the influence.” 87

Probable cause to compel a breath test may be supported by a variety of factors

including, the “commission of a traffic offense, odor of alcohol,”88 bloodshot glassy

eyes, the defendant’s admission to drinking alcohol, rapid speech, a confused

demeanor, multiple traffic violations, trouble standing, a dazed appearance, evasive

answers, slurred speech, and failing field tests.89 In isolation, any one of these factors

may be insufficient, however, taken some of them together under the totality of

circumstances, may establish probable cause.90

The existence of probable cause sufficient to compel a chemical test “is

generally decided by the arresting officer’s observations.”91 Routinely, these

observations include the quality of the driver’s performance on NHTSA developed

SFSTs.92 While deviation from strict compliance with NHTSA standardized

procedures for administering the SFSTs does not automatically invalidate the

results,93 it is the role of the court “to take note of the deficiencies…when giving

weight and value to the tests performed.”94

87
Speicher, 2022 WL 2339865, at *2 (quoting Rybicki v. State, 119 A.3d 663, 670 (Del. 2015)).
88
Wilson, 2024 WL 4719651, at *4.
89
Speicher, 2022 WL 2339865, at *5 (collecting cases).
90
Wilson, 2024 WL 4719651, at *4.
91
Id. (quoting Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011)).
92
Lefebvre, 19 A.3d at 293.
93
Wilson, 2024 WL 4719651, at *5.
94
Id. (citation omitted).
16
C. Analysis

1. Sufficiency of the probable cause evidence

Brown’s argument focuses on a failure to change lanes without signaling and

traveling at a low speed. To be sure, a traffic violation (even with an odor of

alcohol), alone, is not sufficient to find probable cause.95 But the MVR shows

multiple traffic violations. Brown’s vehicle touched the yellow line at least eight

times and touched or crossed the dotted line at least three times. In the context of a

DUI, Delaware courts have repeatedly considered the commission of traffic offenses

among the factors that support a finding of probable cause.96 Brown’s traffic

offenses are properly considered in the totality of circumstances.

Further, after Agnor initiated the traffic stop, Brown continued driving for half

a mile, with no indication he was preparing to pullover. Brown may have had an

innocent justification for the delayed stop, but “[h]ypothetically innocent

explanations for facts learned during an investigation do not preclude probable

cause.”97 Agnor reasonably inferred that Brown’s inattentiveness indicated he was

impaired.

Brown next attacks the pre-arrest tests results because they are not

scientifically validated. The results of pre-arrest tests, however, “have been looked

95
Id. at *4.
96
See Bease, 884 A.2d at 499–500; see also Wilson, 2024 WL 4719651, at *6.
97
Stafford v. State, 59 A.3d 1223, 1229 (Del. 2012).
17
to for probable cause in countless decisions in Delaware and across the country.”98

While Brown passed the finger dexterity test, the counting and alphabet test left

several clues of impairment.99 Brown was unable to correctly recite the alphabet or

count as directed by Agnor. “[A]n inability to count [or recite the alphabet] hardly

needs scientific rigor to confirm the absence of one’s full attention to detail.”100

Because Agnor provided no explanation of how the LOC test was

administered and admitted that the HGN test was not properly administered, the

Court will not consider these tests in its probable cause analysis.

Brown’s attack on the SFSTs is not persuasive. The State bears the burden of

establishing probable cause by a fair probability; a prima facie showing is not

necessary.101 Simply because the BWC did not capture Brown’s feet during the

“heel-to-toe” portion of the WAT test does not require that the results be disregarded.

With Agnor’s testimony and the BWC video of the WAT test, there is a sufficient

basis to find that Agnor determined that 7 clues were present. Additionally, Agnor

found 4 clues on the OLS test.

Turning to the PBT, the calibration records show that the device was

calibrated both shortly before and shortly after Brown’s arrest. The records were

98
Speicher, 2022 WL 2339865, at *5; see, e.g., Perrera v. State, 852 A.2d 908, 2004 WL 1535815,
at *1 (Del. June. 25, 2004) (TABLE); State v. Iubatti, 2017 WL 3396493, at *2 (Del. Super. Aug.
7, 2017); State v. Lackford, 2014 WL 1230765, at *1, *4 (Del. Super. Jan. 29, 2014).
99
Perrera, 2004 WL 1535815, at *1.
100
Speicher, 2022 WL 2339865, at *5.
101
Stafford, 59 A.3d at 1229.
18
admitted into evidence without objection. Brown does not take issue with the

validity of the calibration tests, but argues that the Court should consider Agnor’s

lack of personal knowledge when weighing the evidence.102

“[B]efore admitting PBT results, the State must lay a proper foundation” that

the device was calibrated.103 With the proper foundation, the calibration records are

admitted as business records.104 Thus, the testifying officer need not personally

calibrate (or witness the calibration of) the device to properly admit the calibration

records.105 Here, Agnor’s testimony demonstrated familiarity with the calibration

logs and the procedures through which the logs were created,106 “which is all that is

necessary to be a qualified witness.”107 The calibration records are properly admitted

and the State has carried its burden to show that the PBT was properly functioning

when Brown was tested.

Contrary to Brown’s argument, the bottles of alcohol were located during the

inventory search before Brown was arrested. The Court, however, need not wrestle

102
Browns’s Ans.¶ 7.
103
Miller v. State, 4 A.3d 371, 374 (Del. 2010) (excluding PBT results because the officer was
unaware of the last time a PBT device had been calibrated).
104
McCoy v. State, 89 A.3d 477, 2014 WL 1357317, at *1 (Del. Apr. 3, 2014) (TABLE)
(calibration records “can be introduced through the business records exception to the hearsay
rule.”).
105
See Maulo v. State, 27 A.3d 551, 2011 WL 3849498, at *3 (Del. Aug. 30, 2011) (TABLE)
(holding a proper foundation laid for the admission of a PBT result when the officer testified “that
his department calibrated the PBT device ‘once a month.’”).
106
Mar. 25 Tr. at 70, 101 (Agnor describing his on-scene partner’s record keeping as
“meticulous”).
107
McCoy, 2014 WL 1377317, at *2.
19
any further with the import of the bottles. As explained below, probable cause

existed even if the bottles of alcohol are excluded from the analysis.

2. Agnor had probable cause to administer the Intoxilyzer test.

The admissible evidence, considered in the totality, establishes that Brown:

(1) drove erratically, committing multiple traffic violations; (2) failed to

immediately stop when Agnor activated the emergency lights or at least

acknowledge the need to stop; (3) had bloodshot, glassy, and watery eyes; (4) had a

faint smell of alcohol emanating from his breath; (5) exhibited multiple clues on the

pre-arrest tests; (6) exhibited multiple clues on two SFSTs—the OLS and WAT; (7)

had a BAC above the legal limit, as indicated on the PBT; and (8) admitted to

recently drinking.

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

observations that the defendant “spoke in a rapid manner…, smelled of alcohol,

admitted [to] consuming 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.”108

Similarly, in State v. Speicher, the court found probable cause where the

defendant “(1) violated two traffic laws…; (2) exuded an odor of alcohol; (3)

108
884 A.2d at 499–500.
20
[admitted he] had been drinking; (4) failed three [pre-arrest tests]; (5) had bloodshot

and glassy eyes; and (6) spoke with a slur.”109

Consistent with Bease and Speicher, the Court finds probable cause existed

here. In light of the numerous factors that indicated Brown was driving under the

influence, Agnor had sufficient trustworthy factual information to warrant a person

of reasonable caution to conclude probable cause of a DUI offense existed.

Accordingly, Brown’s Motion to Suppress is DENIED.

IV. Additional factual background110

A. Delaware transitions to the Intoxilyzer 9000

The DSPCL oversees both the breath and blood alcohol DUI testing programs

for all Delaware law enforcement agencies. Julie Willey (“Willey”) has been its

director since 2007. When the Intoxilyzer 5000 was nearing the end of its lifecycle,

Willey helped lead the selection of the new device.111

Since 1973 Delaware courts have recognized the scientific reliability of

infrared (“IR”) spectrometry Intoxilyzer devices for use in evidentiary breath testing

(“EBT”).112 In that same year, NHTSA established industry standards for EBT

109
2022 WL 2339865, at *3.
110
The following facts are taken from the testimony of Julie Willey, Jon Grantham, and Corporal
Agnor.
111
See 21 Del. C. § 4177(c)(4) (“‘Chemical test’…shall include any form or method of analysis
of a person’s…breath…for the purposes of determining alcohol concentration which is approved
by…the [DSPCL.]”).
112
State v. Moore, 307 A.2d 548, 550 (Del. Super. 1973).
21
devices and in 1974, began maintaining a corresponding Conforming Products List

(the “CPL”) of devices that meet those standards.113 NHTSA’s 1993 Model

Specifications provide the current Precision and Accuracy requirements for EBT

devices to be included on the CPL.114

For thirty-six years, beginning in 1988 until 2024, the Intoxilyzer 5000115 and

its enhanced version, the Intoxilyzer 5000EN,116 was Delaware law enforcement’s

choice EBT device.

In January 2024, the DSPCL deployed the Intoxilyzer 9000. The catalyst for

the transition came eleven years earlier, in 2013, when CMI, Inc. (“CMI”), the

manufacture of the Intoxilyzer series of devices, notified the DSPCL that the

Intoxilyzer 5000 was nearing its end-of-life due to unavailability of repair parts and

the inability to build new devices. In other words, the DSPCL would soon be unable

to rely on CMI when it needed replacement parts for its Intoxilyzer 5000s or to

purchase new devices—a successor was needed.

The process to identify a successor EBT device began with the CPL. CMI,

the State’s decades-long partner, offered two devices subsequent to the I-5000 that

met NHTSA’s standards for inclusion on the CPL; the newest device is the

113
NHTSA sets the minimum standards for approval for use in the United States. Mar. 26 Tr. at
15.
114
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58
Fed. Reg. 48705 (Sept. 17, 1993).
115
See State v. Malloy, 1988 WL 40021, at *1 (Del. Super. Apr. 22, 1988).
116
See State v. Valle, 2001 WL 34075421, at *2 (Del. Com. Pl. Dec. 5, 2001).
22
Intoxilyzer 9000.117 In addition, the DSPCL looked to other jurisdictions that

similarly needed to transition, such as Georgia.

Leading the transition process, the Georgia Bureau of Investigation (“GBI”),

identified three potential replacements, and concluded that the Intoxilyzer 9000 was

the best option.118 GBI later published its findings supporting its conclusion.119 The

DSPCL followed GBI’s lead and similarly selected the Intoxilyzer 9000 to replace

the Intoxilyzer 5000.

B. The Intoxilyzer 9000

1. Intoxilyzer devices and IR spectrometry

Jon Grantham, CMI’s engineering manager from 2014 until 2024, provided

testimony on the Intoxilyzer 9000.120

An Intoxilyzer device is designed to measure the level of ethanol in a subject’s

breath. To do so, the Intoxilyzer brand of devices utilizes a scientific methodology

called IR spectrometry.121 In simple terms, IR spectrometry measures the difference

117
The Intoxilyzer 8000 was also available. The I-9000 has been on the CPL since 2012.
118
Mar. 25 Tr. at 138.
119
Id.
120
As engineering manager, Grantham was responsible for all aspects of the hardware and software
of an instrument. Thus, Grantham had personal knowledge of “all aspects of the hardware and
software of the Intoxilyzer 9000 instrument.” Mar. 26 Tr. at 15.
121
Spectrometry is the measurements and spectroscopy is the science behind it. Id. at 13. The
terms are often used interchangeably.
23
between a known amount of IR light and the absorption of that light through the

introduction of matter.122

A subject tested on the Intoxilyzer 9000 blows through a breath tube where

the breath sample is cycled into an environment-controlled sample cell.123 At one

end of the cell is an IR light source and at the other end, an IR detector. If ethanol

is present in the subject’s breath, the IR light is absorbed, the IR detector measures

the resulting change in light frequency, and the amount of ethanol present is

calculated.124 The more IR light that is absorbed—because the amount of light

absorbed is directly proportional to the presence of ethanol in a subject’s breath

sample—the higher the subject’s BAC.125

122
NHTSA explains IR spectroscopy testing as follows:
[w]hen infra-red spectroscopy is used, the [] sample to be analyzed is passed into a
chamber through which infra-red radiation is transmitted. The wavelength of the
transmitted radiation is chosen so that some of it is absorbed by alcohol. According
to the Beer-Lambert Law of absorption of radiation, the amount of energy absorbed
by the sample in the chamber is proportional to the concentration of the alcohol in
the sample. By measuring the amount of radiation transmitted when the sample
chamber is empty and the amount transmitted when the sample is present, the
concentration of the alcohol in the sample can be determined.

NHTSA Model Specifications for Calibrating Units for Breath Alcohol Testers and Conforming
Products List of Calibrating Units for Breath Alcohol Testers, 72 Fed. Reg. 34742, at 34743 (June
25, 2007).
123
Mar. 26 Tr. at 13. The I-9000 is taking approximately 20 independent samples per second. Id.
at 28.
124
Id.
125
Id. at 25–26.
24
2. The Intoxilyzer 5000 versus the Intoxilyzer 9000

Both the Intoxilyzer 5000 and the Intoxilyzer 9000 use IR spectrometry to

measure a subject’s BAC—the science has not changed.126 There are, however,

notable differences between the two devices. First, the I-5000 utilized an IR light

bulb, with a single detector and a filter wheel that rotated between the IR source and

the detector to measure the difference in frequencies.127 The I-9000 uses a solid-

state IR source, not a filament bulb, with a detector package of four independent

detectors.128 Therefore, the I-9000 is able to measure four different points, whereas

the I-5000 could only measure one.129 Next, unlike the Intoxilyzer 5000, the I-9000

uses a dry gas calibration that runs with every test.130 This allows for regular

calibration checks against a known standard.131

Further, the Intoxilyzer 9000 allows for a built-in observation time clock,

effectively locking the device until a jurisdiction’s respective observation period is

completed.132 With the Intoxilyzer 5000, the start of an observation period had to be

determined by the officer and manually tracked, creating opportunities for timing

126
Id. at 33.
127
Id.
128
Id. This is also beneficial because there are fewer wearable parts in the machine.
129
“[T]his allows us excellent ethanol specificity in order to say that, yes, what I’m measuring in
this sample is ethanol and not some other compound, such as acetone…” Id. at 26.
130
The customer has a choice between a dry gas and a wet bath simulator for calibration checks.
Id. at 50. Delaware uses the dry gas standard.
131
Id. at 39.
132
Id. at 67–68.
25
errors.133 The I-9000 also comes equipped “with a user-friendly interface” that

requires the operator to complete a step-by-step process via a touch screen to test the

subject and has an external printer that uses standard copy paper. 134

Finally, with a Windows touch-screen operating system, the Intoxilyzer 9000

devices are networked, allowing for remote monitoring and testing of the devices.135

The technological upgrades also come with significant storage capacity, so an officer

can access previous Intoxilyzer 9000 test results performed on that device, at any

time.136 And because the I-9000s are networked, they can be accessed remotely by

state offices to add or delete operators, troubleshoot a device, or download its data,

among other things.137

3. NHTSA approves the Intoxilyzer 9000.

The Intoxilyzer 9000 gained entry on NHTSA’s CPL list in 2012 when it

satisfied certain minimum requirements (the “Model Specifications”).138 The Model

133
See id. at 68–70.
134
Id. at 71. The I-5000 had an internal printer that required a special card for printing. Id.
135
Id. at 52.
136
Id. at 71-72. Other differences include improvements in electronics that reduce the amount of
energy needed and greater flexibility of energy source, and the ability to interface with a barcode
scanner.
137
Id. at 73.
138
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)); Mar. 26 Tr. at 22–23.
26
Specifications require the EBT device to pass a series of eight tests. Failure of any

test precludes an EBT device from being included on the CPL.139

Test 1 - Accuracy and Precision.140 A variety of samples ranging from 0.02

BAC to 0.160 BAC were processed through the I-9000.141 Although a “passing”

tolerance range was 0.005,142 the I-9000’s standard deviation was only 0.003.143

Test 2 - Acetone Interference. This test measures the device’s susceptibility

to acetone interference.144 Acetone is an organic compound produced by the human

body that can be inadvertently measured as ethanol by some EBT devices, causing

139
NHTSA maintains an independent lab that tests instruments to ensure its standards are met
before the instrument may be placed on the CPL. Id. at 15–16. An instrument cannot be sold in
the United States unless it appears on the CPL. Id.
140
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)). Grantham explained:
Accuracy is used to define how close we are to hitting the target that we’re
aiming for. So, in the case of Test 1.1, they would introduce a sample of a 0.020
BAC into the instrument. And we would have to hit that target within a tolerance
range of .005, which they would consider a reading between 0.015 and 0.025 to be
accurate. That would be a single sample.
Precision is introducing a series of samples into that and assuming that all
of those samples are tightly grouped together, which they’ll calculate a standard
deviation for how close each of those samples are to each other. So accuracy is how
close we are to the target. Precision is how close we are to each repeatable sample.
In order to meet their requirements for accuracy and precision, we would
have to hit all of those targets across that entire test rank.
Mar. 26 Tr. at 17.
141
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)). The tested samples are 0.00 BAC, 0.02 BAC, 0.04 BAC, 0.08 BAC,
and 0.160 BAC.
142
For example, at the 0.02 BAC test, the device would have to measure a BAC between 0.015
and 0.025.
143
Mar. 26 Tr. at 45.
144
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)).
27
interference.145 To test that possibility, NHTSA takes “an ethanol standard, add[s]

acetone to it, and ensure[s] the reading is not affected or that the instrument can

detect that acetone or another interferent is present” and abort the test.146

Test 3 - Blank Reading.147 This test ensures that no residual sample is left in

the device that could affect a subsequent reading. For this test, an air blank—clean

air—is pumped through the breath hose, into the sample cell to clear the entire air

path, and exhausted out of the machine.148 The air blank must read 0.000 BAC.149

Test 4 - Breath Sampling. This tests both the volume and air flow.150 This

test ensures that the subject is blowing the minimum time, the minimum volume,

and at the minimum flow rate.151 As a subject exhales into a breath hose, often the

BAC reading will change over the course of the breath—lower at first when the air

comes from the mouth and then higher when the air comes from the lungs.152 For

this test, the simulated breath sample increases from 0.048, to 0.072, to 0.080 BAC.

To be accurate, the slope of the reading must ultimately level out.153

145
Mar. 26 Tr. at 18.
146
Id. When the I-9000 detects an interferent, like acetone, an audible alert is triggered and a
message appears on the display screen to notify the operator and the test is aborted. Id. at 27.
147
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)).
148
Mar. 26 Tr. at 19.
149
Id.
150
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)); Mar. 26 Tr. at 21.
151
Mar. 26 Tr. at 21.
152
Id. at 29–30.
153
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)); Mar. 26 Tr. at 21.
28
Test 5 Power Input. The I-9000 is designed to be both a stationary and mobile

platform, meaning it can be used in a police vehicle. This test ensures that the

Intoxilyzer 9000 can function properly under both provided options of power—110

volt AC (for stationary) and 12 volt DC (for mobile platforms).154

Test 6 - Ambient Temperature. Because the I-9000 can be deployed in various

environmental conditions (extreme heat or cold), this test exposes the device to a

variety of temperatures to ensure that temperature does not have a measurable effect

on its reading.155

Test 7 - Vibration Stability.156 Because the I-9000 can be deployed in a mobile

application, this test ensures that vibrations from the vehicle do not affect the

accuracy and precision of the instrument.157

Test 8 - Electrical Safety Inspection. This test is to ensure that the operator

and the subject are safe and protected from an electrical shock.158

154
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)).
155
Id.; Mar. 26 Tr. at 20.
156
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)).
157
Mar. 26 Tr. at 22.
158
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)); Mar. 26 Tr. at 22.
29
As evidenced by its placement on the CPL in 2012,159 the Intoxilyzer 9000

performed satisfactorily on each of the eight tests and was ultimately approved by

NHTSA.160

Once approved and placed on the CPL, CMI was able to market and sell the

Intoxilyzer 9000 to law enforcement agencies.161 Currently, at least 25 states and

multiple countries have approved its use as an EBT device, including: 162 Georgia,

Arizona, Colorado, Hawaii, Pennsylvania, Kansas, New York, Montana, Rhode

Island, Texas, and Canada.163

4. Customization of the Intoxilyzer 9000

CMI works with state program offices to tailor the Intoxilyzer 9000 to the

needs of the jurisdiction. The flexibility offered by CMI, however, is not without

limits. The customer-controlled functions do not extend to the Model Specifications

set by NHTSA.

While a customer may request modifications of certain parameters to match

the procedures and protocols established by that jurisdiction, CMI controls the

159
State Ex. 9 (Conforming Products List of Evidentiary Breath Alcohol Measurement Devices,
82 Fed. Reg. 50940 (Nov. 2, 2017)).
160
CMI submits the I-9000 to NHTSA every few years to ensure that any changes have not affected
the minimum approval requirements. Mar. 26 Tr. at 24. At the time of the hearing in March 2025,
another NHTSA review was underway. Id. at 63. The typical review schedule was impacted by
the NHTSA being shut down during Covid. Id. Grantham could not recall the date of the last
NHTSA approval. Id.
161
Id. at 55-56.
162
This list is not exhaustive.
163
Mot. in Limine ¶ 37 (collecting cases, statutes, and regulations).
30
software of the Intoxilyzer 9000.164 That is, the I-9000’s source code can only be

changed by CMI.165 Some of the customizable features include setting the minimum

volume of air required for a completed breath sample, defining the scope of the

subject’s information to input, requiring one or two breath samples (and if the two

do not “agree”, requiring a third sample), running self-diagnostics before each test,

or having a built-in observation period.166 But a customer cannot change the method

by which the I-9000 calculates a subject’s BAC—through IR spectrometry.

C. The DSPCL deploys the Intoxilyzer 9000

1. Willey is trained on the Intoxilyzer 9000

As head of the DSPCL, Willey received extensive instruction on the

Intoxilyzer 9000, starting in 2015, when CMI provided training for three days onsite

at the DSPCL.167 CMI provided Willey and her team with training on using the

software, how to calibrate and maintain the device, and troubleshooting issues that

may arise.168 Upon completion of this training, Willey became a qualified

Intoxilyzer 9000 trainer.169

164
Grantham cross: Q: “CMI is not willing to in any way alter something that affects the NHTSA
minimal requirements, correct?” A. “That is correct.” Mar. 26 Tr. at 57.
165
Id. at 62.
166
Id. at 50-51.
167
Mar. 25 Tr. at 134–35.
168
Id.
169
State Ex. 11 (Willey’s Intoxilyzer 9000 certificate); Mar. 25 Tr. at 134–35.
31
In 2024, Willey attended CMI’s annual Intoxilyzer user group meeting.

During this three-day meeting, CMI makes presentations and provides training

sessions.170 In addition to receiving additional training, Willey interacted with

officials from other jurisdictions and learned of procedures and practices

implemented by them.171 Willey used this knowledge to tailor procedures and

practices to meet Delaware’s needs.172

2. Delaware’s Intoxilyzer 9000 features

The replacement EBT device process began in 2013 and the DSPCL’s final

approval of the I-9000 came in 2020.173 During this period, approximately 15

revisions were made to Delaware’s version of the software.174 Delaware’s

customization included imbedding a mandatory twenty-minute observation

period.175 Mouth alcohol typically dissipates in 9 to 11 minutes and therefore, the

general recommendation is to wait 15 minutes before starting the test. 176 Delaware

takes a more cautious approach and requires a twenty-minute observation period.177

170
Mar. 26 Tr. at 44; Mar. 25 Tr. at 135–36.
171
Id.
172
See Mar. 25 Tr. at 135–36.
173
Mar. 26 Tr. at 67.
174
Id. During her testimony, Willey discussed these customizations, why they were important to
Delaware, and Grantham testified as to CMI’s involvement in those customizations.
175
Id.at 68–69. Willey testified to the modifications Delaware required.
176
Id. at 68.
177
Id.
32
Delaware’s I-9000s cannot begin the breath test until the internally timed twenty-

minute observation period is completed.178

Taking advantage of the operating platform, the DSPCL also required that the

I-9000 be programmed so that the operator had to proceed step-by-step through the

test, acknowledging compliance on the touch-screen before the device would

advance to the next step.179

The DSPCL also opted to have the I-9000 require an operator card to gain

access to the program via a bar code scanner180 to ensure the operator was

certified.181 The bar code scanner also inputs the subject’s information.182

Additionally, the DSPCL selected the networking option,183 including the storage

feature to allow test results to be printed at a later time.

The DSPCL selected the two breath samples184 option and elected to utilize a

dry gas external standard, set to 0.08 BAC.185 The instrument conducts two air gas

tests with the dry gas standard during testing on each breath sample to verify that it

178
Id. at 70.
179
Id. at 70.
180
The officer can also manually input his or her credentials.
181
Id. at 71.
182
Id.
183
DSPCL can remotely ensure all instruments’ software is up to date. Id. at 74. Since the software
was “locked” with final approval in 2020, DSPCL has not requested any software updates. Id. at
67, 74.
184
More than 75% of states use a two-breath test. Id. at 125.
185
The dry gas has an expiration date. With the networking option, the DSPCL can monitor the
dry gas standard inventory. Delaware’s I-9000 is programmed to inactivate the instrument if the
dry gas runs out or expires. Id. at 73–75.
33
is accurately reading 0.08 BAC at the time of the subject’s test.186 And the two

samples produced by the subject are required to be within 0.02 BAC of each other,

giving further confidence in the results.187

While Delaware’s Intoxilyzer 9000 has the capability of collecting two

samples, Willey testified that two samples are not required by Delaware law or the

DSPCL.188 Thus, a test on a single breath is still a valid result.189

3. Training and testing on the Intoxilyzer 9000

In anticipation of fielding the I-9000, in 2022 the DSPCL started training

Delaware law enforcement officers on the device. I-9000 training became part of

the curriculum at the police academy.190 Officers previously trained on the I-5000

received in-service training on the I-9000, which included hands-on experience and

instruction on the changed procedures.191 Trained officers are certified for a three-

year period.192

To begin the testing process, the officer must scan his/her operator card using

the 2D barcode scanner, which allows the officer to move to the next step—scanning

186
Id. at 74–75.
187
Id. at 76.
188
Id. at 76.
189
Id. A single breath sample is a valid result because it is surrounded by the air blanks, the
diagnostics, and calibrations. Id.
190
Mar. 25 Tr at 136, 146–47.
191
Id. at 136, 145–46.
192
Id. at 148.
34
the subject’s driver’s license or inputting the information manually.193 Next, the

Intoxilyzer 9000 runs internal diagnostics,194 and after successful completion, the

twenty-minute observation period begins.

During the observation period, the officer observes the subject to ensure the

elimination of mouth alcohol and that no contaminates are introduced.195 Before

taking a breath sample, the officer is to ask if the subject is wearing dentures and if

so, the DSPCL recommends removal before administering the test.196 Failure to

remove dentures does not, however, invalidate test results.197

After the observation, the device prompts the officer to place a mouthpiece198

on the I-9000’s breath hose and the officer instructs the subject on how to perform a

193
Requiring a barcode scan ensures that only certified operators can perform the test. Mar. 26 Tr.
at 49.
194
The diagnostics check the power supply, the temperature of the cell and breath hose, the
electronic components, and conducts an internal test procedure which simulates a test reading. “So
it’s checking the full IR pass before it will even go into a ready mode before it allows an operator
to run a test.” Id. at 37.
The I-9000 is designed to avoid radio frequency interference (“RFI”), which is an electrical energy
generated by electronics in the vicinity. The I-9000 contains a detection circuit, which will send
an alarm and displace a message if RFI is detected and the test will be aborted. Id. at 31.
195
As mentioned, the twenty-minute observation period is to ensure mouth ethanol dissipates.
When mouth alcohol is present, the slope rises very rapidly as the mouth ethanol vapors pass
through the cell and then drops as lung air reaches the sample cell. In a test with no mouth alcohol,
the slope will rise and then level off. If mouth alcohol is present in a sample, the I-9000 will send
an audible signal and a message would appear on the screen. Id. at 30.
196
Id. at 118.
197
Id. The concern with dentures is that mouth alcohol could be trapped in the dentures. But, I-
9000 is programmed to detect mouth alcohol so otherwise valid test resulted are not invalidated
for failure to remove dentures. Id. at 119-21. The State also introduced into evidence peer
reviewed articles that conclude that dentures do not impact the validity of the test. Id. at 120–23.
198
The mouthpieces are individually wrapped. The I-9000 requests a new mouthpiece be used for
each breath sample. Id. at 117–18.
35
satisfactory test.199 The breath sample must meet a certain threshold of time, airflow,

and volume.200 If the subject does not meet that threshold, the device will not accept

the sample.201 If the sample is valid, the I-9000 continues with the reading.

After the first test, a new mouthpiece is installed and the device performs an

air blank to purge any residual ethanol.202 Then, after a two minute-wait period, a

second sample is taken.203

The Delaware I-9000’s sequencing after the observation period is as follows:

Air blank
Diagnostic check
Air blank
Dry Gas Standard
Air blank
Subject Sample 1
Air blank
Two Minute Wait
Air blank
Subject Sample 2
Air blank
Dry Gas Standard
Air blank
Diagnostic check
Air blank204

At the completion of the test, the results are printed.205

199
Id. at 146.
200
Id. at 40, 146.
201
Id. at 146.
202
Id. at 140.
203
Id. at 133, 136.
204
State Ex. 7; Mar. 26. Tr. at 101.
205
See State Exs. 7, 15–17.
36
The I-9000 also indicates when a test cannot be completed. For example, if a

subject refuses a second breath sample, the instrument will run the remainder of the

sequence and the printout will show an asterisk in the Sample 2 line and explain the

event:206

If the subject refuses the first sample, the I-9000 will continue with the air

blanks, dry gas standard and diagnostics, but will not proceed to the second

sample:207

206
State Ex. 15.
207
State Ex. 16.
37
When two breaths are properly sampled, for results to be valid the samples

must be within 0.02 BAC. If they are not, the printed report shows an asterisk for

the samples and explains the event:208

If the samples are within 0.02 and no asterisks appear, the lower reading is

recorded at the bottom of the printout as the valid result:209

208
State Ex. 17. The I-9000 will similarly indicate when an air blank fails to properly purge.
When this occurs, the instrument will send another air blank to attempt to resolve the issue. If not
resolved, the test will be aborted. Mar. 26 Tr. at 110-12. The same process would occur if the dry
gas standard was out of tolerance. Id. at 113.
209
State Ex. 7; Mar. 26 Tr. at 97.
38
4. Calibration procedures

A DSPCL chemists perform calibration tests on each I-9000 every six to seven

weeks.210 The calibration check uses three certified solutions, 0.05 BAC, 0.10 BAC,

and an acetone solution.211 Thus, the check is ensuring that the instrument is reading

the correct BAC level and detecting the presence of acetone.212 Additionally, the

chemist provides two breath samples (which are processed through the sequencing

shown above) to ensure the instrument is operating properly. 213 At the completion

of the calibration check, a Calibration Check Report is generated, which reflects the

raw data from the check and is signed by the chemist performing the check.214 A

CMI Intoxilyzer 9000 Certification Sheet is also generated, which reflects the date,

time, and results, and certifies that the instrument is properly calibrated.215 The

chemist performing the check signs the sheet certifying and attesting that the

document was made by a person with knowledge and in the ordinary course of

business.216

210
CMI does not have a recommended calibration schedule. When to conduct calibrations is left
to the customer. Mar. 26 Tr. at 61. On a set date in each county, all I-9000 instruments are brought
to the designated troop for calibration testing. Id. at 90.
211
Id. at 79–80, 85. The results must be within .005 of the target value. Id. at 92.
212
Id.
213
Id. at 80–84.
214
State Ex. 5; Mar. 26 Tr. at 78. The I-9000 prints three documents: the test results, the raw data,
and the certification of calibration. Mar. 26 Tr. at 78.
215
State Ex. 5.
216
Id.
39
In addition to its own calibration checks, the DSPCL participates in a

“proficiency testing program” with Intoximeters—an external vendor.217 As

participants in the program, the DSPCL is sent an unknown sample of a dry gas tank.

Using the I-9000, the DSPCL analyzes the blind sample and reports their results to

Intoximeters. Intoximeters then grades DSPCL’s performance—the DSPCL has

passed all proficiency tests.

D. Brown’s Intoxilyzer 9000 test.218

Brown was taken to Troop 9’s Intoxilyzer room on March 28, 2024. Agnor

followed the procedures outlined above: he scanned his operator card and Brown’s

driver’s license;219 Agnor sat with Brown and observed him during the twenty-

minute period to ensure Brown did not drink, smoke, throw up, burp, or introduce

anything into his oral cavity that could interfere with the test sample; 220 after the

observation period, a mouthpiece was placed on the breath hose;221 Brown was

instructed on how to provide the breath sample; an adequate first breath sample was

collected; after a two-minute wait period, a fresh mouthpiece was placed on the

breath hose; and Brown provided an acceptable second sample.

217
Mar. 25 Tr at 114–15.
218
The following facts are derived from Agnor’s BWC and his accompanying testimony.
219
Id. at 160.
220
Id. at 156.
221
Id.
40
Both samples measured 0.122, with no asterisked line-items, reporting a valid

test.222

Brown was tested on the Intoxilyzer 9000 bearing serial number 90-

001862.223 This instrument was calibration tested by Willey on March 4, 2024,224

and April 22, 2024.225 The Calibration Check Reports reflect that it was properly

functioning.

V. Motion in Limine

A. The parties’ contentions

Brown argues that the State has failed to establish the admissibility of the

Intoxilyzer 9000’s results as required by Delaware Uniform Rules of Evidence

(“DRE”) 702. Brown asserts that the State’s failure to produce the I-9000’s source

code and documentation relating to the DSPCL’s customizations preclude the Court

from finding the device reliable.226

The State responds first that DRE 702 does not require an examination of the

I-9000’s source code to meet admissibility requirements. It argues that seeking an

inspection of the source code now amounts only to a “procedural fishing expedition”

that ignores the I-9000’s independent verification.227 Next, the State argues that the

222
State Ex. 7 (Brown’s Intoxilyzer 9000’s DUI chemical test results).
223
Id.
224
State Ex. 5 (March 4, 2024, calibration report and certification).
225
State Ex. 6 (April 22, 2024, calibration report and certification).
226
Brown’s Ans. ¶¶ 30–37.
227
State Reply ¶¶ 38–39.
41
customizations made by the DSPCL are unrelated to the I-9000’s scientific

reliability. This is because the customizations offered are available only to help

jurisdictions meet its breath testing program requirements, but they cannot change

the scientific methodology of the I-9000 or alter an aspect of the I-9000 that would

compromise its ability to meet the Model Specifications.228

B. Standard of review

DRE 702 and Daubert govern the admissibility of scientific evidence.229 The

trial court is to act as a gatekeeper to ensure scientific evidence is both relevant and

reliable.230 The proponent of the evidence bears the burden of proving relevance and

reliability.231 The court must preclude evidence if it is either irrelevant or

unreliable.232

To be relevant, the evidence must relate to an issue in the case and “assist the

trier of fact to understand the evidence or to determine a fact issue.”233

“To determine reliability under Daubert, a trial court may consider a non-

exhaustive list of factors, including:”234

228
Id. ¶¶ 42–43.
229
In re Zantac (Ranitidine) Litig., 342 A.3d 1131, 1143–44 (Del. 2025); see also United States v.
Gissantaner, 990 F.3d 457, 463 (6th Cir. 2011) (“Rule 702…sets the framework for determining
whether to admit scientific and other technical evidence…in…criminal cases.”).
230
In re Zantac (Ranitidine) Litig., 342 A.3d at 1143–44.
231
Id. at 1147.
232
Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1268 (Del. 2013).
233
Id. (citation omitted).
234
In re Zantac (Ranitidine) Litig., 342 A.3d at 1144.
42
(1) whether a theory or technique has been tested; (2) whether it has
been subject to peer review; (3) whether a technique had a known or
potential rate of error and whether there are standards controlling its
operation; and (4) whether the theory or technique enjoys general
acceptance within a relevant scientific community.235

The inquiry into reliability is flexible236 and “must be tied to the facts of a particular

case.”237

C. Discussion

1. Daubert factors

a. Is the Intoxilyzer 9000 testable?

Testability is of particular significance to reliability “because testing a

hypothesis separates science from other fields of human inquiry.’”238 And “if there

is no way to show whether a technology is testable, there is no way to demonstrate

whether it works or to accord it scientific status.”239

NHTSA sets the standards for EBTs in the United States. Before an EBT can

be sold, it must appear on the CPL, which means it meets NHTSA’s Model

Specifications. The Intoxilyzer 9000 was added to the CPL in 2012, thereby

satisfying the eight tests that examined the I-9000’s ability to accurately measure

235
Bowen v. E.I DuPont de Nemours & Co., Inc., 906 A.2d 787, 794 (Del. 2006) (citing Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 590–94 (1993)); see also in re Zantac (Ranitidine)
Litig., 342 A.3d 1131, 1144 (Del. 2025).
236
In re Zantac (Ranitidine) Litig., 342 A.3d at 1144.
237
Bowen, 906 A.2d at 794.
238
Hudson v. State, 312 A.2d 615, 626 (Del. 2024) (internal citations and quotations omitted).
239
Id.
43
BAC across a spectrum of known standards and under various scenarios. Since the

I-9000’s inclusion on the CPL, CMI has resubmitted the instrument to NHTSA to

confirm it continues to satisfy the Model Specifications.

The testimony from CMI’s former engineering manager establishes that the I-

9000 is testable. Grantham testified not only to NHTSA’s standards but the

sequencing of the I-9000, which ensures that the reading is accurate, through self-

diagnostics and air purges, among other things.

Additionally, Delaware’s Intoxilyzer 9000s are subjected to the DSPCL’s

routine calibration checks. Every six to seven weeks each I-9000 undergoes a

calibration check performed by a DSPCL chemists. And, independent of their own

calibration checks, the DSPCL participates in an independent proficiency testing

program.240 Through the program, the DSPCL runs tests on a certified, but

unknown, sample of a dry gas tank and submits the results to the vendor.241 The

vendor then grades the DSPCL’s analysis of the unknown sample.242 Simply stated,

the Intoxilyzer 9000 has been tested.

240
Mar. 25 Tr. at 114–15.
241
Id.
242
Id.
44
b. Scrutiny of the scientific community

The key inquiry here is whether “the theory and procedures have been

submitted to the scrutiny of the scientific community.”243 The Intoxilyzer 9000 was

scrutinized by NHTSA, resulting in inclusion on the CPL since 2012.

Further, before Delaware selected the I-9000 as its EBT device, Georgia

conducted an in-depth analysis and published its findings. GBI’s report, Evaluation

of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, issued

September 2012, details the evaluation plan, which was scored according to

predefined, objective criteria.244 The GBI concluded that the I-9000 “will accurately

and reliably measure subjects’ breath alcohol concentration when properly operated

and maintained.”245

Additionally, the Intoxilyzer 9000 is approved as an EBT device in 25-30

states and 20 countries.246 In each case, the respective jurisdiction reviews and

validates the Intoxilyzer 9000.247

243
United States v. Gissantaner, 990 F.3d 457, 464 (6th Cir. 2021).
244
https://dofs-gbi.georgia.gov/sites/dofs-
gbi.georgia.gov/files/intoxilyzer%20Evaluation%20Report.pdf
245
Id. at p. 3.
246
Mar. 26 Tr. at 12, 44, 59.
247
See Mar 25. Tr. at 138–39 (Willey discussing GBI’s shared research).
45
Finally, IR spectrometry has also been subject to extensive peer review and

publication.248 [P]ublication in a peer-reviewed journal alone typically satisfies [the

second] Daubert inquiry.”249

The I-9000 has been subjected to scrutiny of the scientific community.

c. Error rate

The third factor “looks to the error rate of the technology and to whether the

scientific community has established standards that…scientists can use to mitigate

the risk of error.”250 NHTSA’s Model Specifications and CPL inclusion required

the I-9000 to test four separate BAC samples—0.02, 0.04, 0.08, and 0.160—to a

tolerance of 0.005.251 The I-9000 held a tighter tolerance of 0.003, exceeding the

minimum requirements set forth by NHTSA, resulting in a very low error rate. In

addition, standards controlling the testing operation are built into the I-9000. The

testing sequence begins with an internal diagnostics check, then the instrument

ensures its calibration through the use of a 0.08 dry gas standard.

Finally, the device is designed to abort or invalidate a test should an interferent

impact the breath sample or its procedures were not followed.

248
State Ex. 24 (A.W. Jones, Lars Andersson, Karin Berglund, Interfering Substances Identified
in the Breath of Drinking Drivers with Intoxilyzer 5000S, 20 J. of Analytical Toxicology 522
(1996)).
249
Hudson, 312 A.3d at 627 (quoting Gissantaner, 990 F.3d at 464).
250
Hudson, 312 A.3d at 627 (quoting Gissantaner, 990 F.3d 457, 464 (citing Daubert, 509 U.S. at
594 (1993))).
251
State Ex. 8 (Model Specifications for Evidential Breath Alcohol Measurement Devices 58 Fed.
Reg. 48705 (Sept. 17, 1993)).
46
The Intoxilyzer 9000 has a low error rate and designed protections against

tests that fall outside the standards.

d. General acceptance

“This inquiry focuses on whether the relevant scientific community accepts

the [device].” The I-9000 was first fielded in 2012, and since then it has become an

approved EBT device in several states and countries. And, its underlying scientific

process, IR spectrometry, has received widespread use in EBT devices for decades.

Such consistent and widespread use of the Intoxilyzer 9000 is indicative of general

acceptance.252

2. Delaware’s procedures ensure reliable application.

The DSPCL oversees the breath alcohol testing program for the State’s law

enforcement agencies. Therefore, it is responsible for training officers to use the I-

9000 and ensuring its reliability. Before being able to access an I-9000, the officer

must complete the required training course and obtain a certified operator card.

Under the supervision of a state chemist, officers are instructed on the testing

procedures, including hands-on experience with the device. The DSPCL requires

officers be recertified every three years.

252
See Hudson, 312 A.2d at 628 (reasoning that the fourth reliability factor was satisfied when the
technology was “widespread in labs at the local, state, and international levels.”).
47
Delaware’s I-9000s are configured so that an officer conducting the test must

follow the step-by-step procedures. The I-9000 cannot move to the next step unless

and until the officer confirmed that the prior step was completed. Further, the

twenty-minute observation period is built into the software and it cannot be

overridden during the test.

The DSPCL calibrates each I-9000 every 6 to 7 weeks, generating calibration

reports. The calibration process runs tests against certified solutions. The DSPCL

chemist conducting the calibration certifies that the device is working properly and

accurately.253 In addition, because of the technological upgrades to the Intoxilyzer

9000, as compared to its 5000 predecessor, the DSPCL is able to monitor aspects of

each device and troubleshoot remotely.

The DSPCL’s oversight and training ensures that the devices are working

properly and that the officers are operating them correctly.

253
Anderson v. State, 675 A.2d 943 (Del. 1996) (rejecting bright-line monthly testing criteria and
finding that “the trial court may consider the frequency of calibration as a factor bearing on
admissibility only if the offer of proof is found to be unreliable because the temporal proximity of
the calibration is too remote to be reasonable under the circumstances of the case.”).
48
3. Delaware’s customizations do not affect the I-9000’s reliability.

Grantham testified to the Intoxilyzer 9000’s IR technology, the rigors of the

certification testing, and its systems of accuracy checks. He also testified to the

customization features offered for the I-9000.

Delaware took advantage of the offered customization. The DSPCL

selections are geared towards a user-friendly operation, such as the touch-screen

step-by-step requirement and built-in twenty-minute waiting period. The DSPCL

selected to use dry gas samples and two-breath testing. Importantly, CMI owns the

source code and it does not allow customers to make changes once the software is

“locked,” meaning final customization. CMI will not make requested

customizations if they would impact the device’s ability to satisfy NHTSA

standards. None of the DSPCL chosen features impacted the science or accuracy of

the testing.

Relying on Clawson v. State and Hunter v. State, Brown argues that the State

cannot satisfy its burden to prove reliability because it did not produce the I-9000’s

source code or documentation of the DSPCL’s customization selections.254

254
Brown’s Ans. ¶¶ 30–37. Brown also argues that the lack of resubmission of the I-9000 for
NHTSA testing in the previous few years creates a further need for source code and customization
documentation. Id. ¶ 33. NHTSA requires resubmission only when the manufacturer makes a
change to the hardware, or it makes a change to the Model Specifications. State Reply ¶ 41; see
Mar. 26 Tr at 23–24 (Grantham discussing the I-9000’s resubmission process). Accordingly, the
I-9000 need not be resubmitted.
49
The State bears the burden of establishing the admissibility of the I-9000

results by “providing an adequate evidentiary foundation.”255 For example, an

adequate foundation has been found when the manufacturer’s use requirements are

followed, which “ensures the reliability of the scientific test.”256 There is, however,

no set manner in which the State must proceed to meet its burden. Each case must

be evaluated by considering all of the evidence presented.257 Thus, in addition to

establishing that the manufacturer’s requirements were followed, adequate

evidentiary foundation may be found through expert testimony.258

A source code is a set of instructions a programmer writes to create

software.259 Brown did not ask for the source code during discovery. He has

provided no reason why the lack of a source code, alone, raises an appearance of

unreliability.

255
Clawson v. State, 867 A.2d 187, 191 (Del. 2005); Ayala v. State, 204 A.3d 829, 837 (Del. 2019)
(“[A]s a gatekeeper, the trial court is looking for reliability, not infallibility.”)
256
Hunter v. State, 55 A.3d 360, 365 (Del. 2012).
257
See id.(finding the State failed to meet its evidentiary burden because the phlebotomist deviated
from the manufacturer’s required protocols when handling the blood sample); Clawson, 867 A.2d
at 191 (finding the State failed to meet its evidentiary burden because the officer did not wait the
manufacturer-required 20 minutes before administering the Intoxilyzer test); Ayala, 204 A.3d at
837 (finding the State met its evidentiary burden even though chemist deviated from the
manufacturer’s non-binding guidelines).
258
See Malloy, 1988 WL 40021, at *1 (finding Intoxilyzer 5000 was scientifically reliable based
on expert testimony and general acceptance in the scientific community).
259
In re Source Code Evidentiary Hearings in Complied Consent Matters, 816 N.W.2d 525, 527
n.1 (Minn. 2012) (“[S]ource code is a human-readable set of instructions that are performed by a
computer.”).
50
Grantham provided credible expert testimony on the IR spectrometry used in

the I-9000 and how it satisfies the minimum requirements established by NHTSA.

Thus, Grantham’s testimony established that the CMI manufactured Intoxilyzer

9000 is scientifically reliable. Willey also provided credible testimony on the

customizations selected by the DSPCL. Once these selections were finalized,

Grantham was clear that the customer (the DSPCL) could not make any changes to

the software. Further, CMI would not make any changes to the I-9000 that would

cause it to fall out of compliance with NHTSA’s Model Specifications.260

The Intoxilyzer 9000 also has functions that are not a NHTSA requirement.

These features meet other standards, such as the OIML specifications for breath

testing.261 Grantham testified that if a customer requested a modification below a

CMI recommended standard, such as flow rate, CMI “would have to have a

discussion that [CMI does not] recommend that…[and] warn them that it could

adversely affect the accuracy and/or precision of the instrument.”262

There was no testimony to suggest that any of the DSPCL’s customization

selections fell below CMI’s recommendations. As discussed below, the source code

and documentation of the DSPCL’s selections are not necessary for the State to

260
Mar. 26 Tr. at 57.
261
The OIML is the International Metrology Lab. This standard checks for acetone and other
interferents. Id. at 46–47.
262
Id. at 53.
51
satisfy its evidentiary burden. Brown’s speculation about the State’s alleged failures

does not overcome the significant evidentiary weight of reliability presented by the

State.263

4. The Intoxilyzer 9000 is relevant.

To be admissible, the I-9000 test must be relevant to an “issue in the case”

and “assist the trier of fact to understand the evidence or to determine an issue of

fact.”264 There is no dispute here that the I-9000 test and its results are relevant to

Brown’s charge of driving under the influence.265

5. The Intoxilyzer 9000 is a validated technology.

As discussed above, the State presented credible testimony and evidence that

the Intoxilyzer 9000 is reliable. In addition to Grantham’s thorough explanation of

the technology, NHTSA’s requirements and standards, and upgrades to the I-9000

and Willey’s testimony on the Delaware-specific features, the State introduced

263
See McNair v. State, 990 A.2d 398, 404 (Del. 2010) (“[M]ere suggestion, without more, is too
speculative to warrant…evidentiary value.”).
264
Council of the Village of Fountainview Condo. v. Corrozi-Fountain View LLC, 2022 WL
18865191, at *1 (Del. Super. Nov. 21, 2022) (cleaned up).
265
21 Del. C. § 4177 provides in relevant part:
(a) No person shall drive a vehicle:
***
(4) When the person’s alcohol concentration is .08 or more; or
(5) When the person’s alcohol concentration is, within 4 hours after the time of
driving .08 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 .08 or more and that alcohol concentration is the
result of an amount of alcohol present in, or consumed by the person when that
person was driving;
52
evidence that shows that Delaware’s version of the I-9000 has a number of built-in

safeguards to ensure the device is functioning correctly and will indicate when an

error occurs.266

The Intoxilyzer 9000 has been deployed in several states and for over twelve

years before Delaware moved to this device. Just as when Delaware moved from

the Intoxilyzer 4011AS to the Intoxilyzer 5000 in the 1980s, the Court finds that the

I-9000 is a more sophisticated version of the I-5000. 267 The I-9000’s improvements

make the test more uniform and user-friendly. The Court is convinced that the

Intoxilyzer 9000 is the “product of reliable principles and methods.”268

D. Intoxilyzer 9000 - SN 90-001862

With the Intoxilyzer 9000 results admissible under Daubert, for Brown’s test

results to be admissible, the State must show that “the [Intoxilyzer] was operating

properly”269 and that the test was properly administered.270

266
See State Exs. 15–20.
267
Mar. 25 Tr. at 116; Mar. 26 Tr. at 14 (Grantham describing IR spectrometry as “very-well
established” and discussing the previous Intoxilyzer models that utilized IR spectrometry); see
Moore, 307 A.2d at 550 (holding that the Intoxilyzer 4011, the I-5000’s predecessor, is reliable);
see also State v. Vickers, 2010 WL 2299001 (Del. Ct. Com. P. June 9, 2010) (finding the
Intoxilyzer 5000EN is a reliable method to detect alcohol content).
268
DRE 702(c); see also Hudson, 312 A.3d at 628 (“In answering ‘yes’ to…Daubert’s four
inquiries as related to reliability, we conclude that the Superior Court properly admitted the
evidence.”).
269
Cedeno v. State, 2023 WL 6323598, at *2 (Del. Super. 2023).
270
See Clawson, 867 A.2d at 192–93.
53
1. Was the Intoxilyzer 9000 SN 90-001862 functioning properly?

“[T]he prerequisite to introducing the result of an [I]ntoxilyzer test into

evidence is to present the certifications of the State Chemist that the [I]ntoxilyzer

machine was operating accurately before and after testing the breath of the

defendant[.]”271 There is no bright-line test that an EBT must be calibrated monthly

or every 30 days.272 Rather, the court must analyze this issue on a case-by-case basis,

evaluating the evidence under Rule 403.273 “Failure to test the device for an

unreasonably extended period of time would render the evidence unduly prejudicial

as compared to its probative value.”274 However, “[i]n the absence of evidence to

the contrary there is a presumption that the State Chemist acted carefully and in a

prudent manner[]” when calibrating an Intoxilyzer device.275

Calibration records may be admissible as an exception to the hearsay rule as

a business record, under Rule 803(6). The party offering the evidence must show:

“(a) the record was prepared in the regular course of business, (b) it was made ‘at or

near the time of the event,’ (c) the information and circumstances of recordation are

trustworthy, and (d) a custodian or other qualified witness is available to testify.”276

271
McConnell v. State, 639 A.2d 74, 1994 WL 43751 (Del. Feb. 3, 1994) (TABLE).
272
Anderson, 675 A.2d 943 at 944.
273
Id.
274
Id.
275
McConnell, 1994 WL 43751, at *1.
276
Talley v. State, 841 A.2d 308, 2003 WL 23104202 (Del. Dec. 29, 2003) (TABLE) (citations
omitted) (“[A] qualified witness may testify regarding the records, if such witness can attest that:
(1) the declarant had knowledge to make the entries in the document; (2) that the declarant's
54
The purpose of the exception “is to broaden the area of admissibility of relevant

evidence where there is necessity and sufficient guarantee of trustworthiness.”277

“The term ‘other qualified witness’ should be construed broadly.”278 “[A] qualified

witness only need “have familiarity with the record-keeping system” and the ability

to attest to the foundational requirements of Rule 803(6).279

CMI does not have a recommended calibration schedule.280 It leaves that

determination to the customer. Willey testified at length on the calibration program

implemented by the DSPCL.281 She is trained and certified by CMI to calibrate

Intoxilyzer 9000s, as are the DSPCL chemists. The DSPCL calibrates the devices

by testing three different certified solutions and using two breath samples provided

by the chemist conducting the calibration. Willey personally calibrated Intoxilyzer

9000 SN 90-001862 on March 4, 2024282 and April 22, 2024.283 The results show

the Intoxilyzer device accurately reported the BAC of the certified solutions,

detected acetone interference, and was functioning properly.284 Accordingly, Willey

recording of the statements were contemporaneous with his or her actions; (3) that the declarant
made the record in the regular course of business activity; and (4) that such records were regularly
kept.”); Vickers, 2010 WL 2299001, at *3 (citing Trawick v. State, 845 A.2d 595 (Del. 2004)).
277
State v. McCoy, 2012 WL 1415698, at *3 (Del. Super. Feb. 12, 2012).
278
Id. (citing U.S. v. Console, 13 F.3d 641, 657 (3d. Cir. 1993)).
279
Console, 13 F.3d at 657.
280
Mar. 26 Tr. at 61.
281
Id. at 82–90.
282
State Ex. 5.
283
State Ex. 6.
284
State Exs. 5–6.
55
executed a CMI Intoxilyzer Model 9000 Certification Sheet, certifying that this

device was “working properly and accurately.”

Additionally, during Brown’s test, Agnor noted no issues with the

functionality of the device and there were no error messages generated.

The Court is satisfied that the State has established that the Intoxilyzer 9000

SN 90-001862 was functioning properly at the time of Brown’s test.

2. Was the test properly administered?

To satisfy its burden, the State must show two things. First, that the operator

was certified to conduct a test on the Intoxilyzer 9000. Second, that the operator

properly administered the test. Agnor was trained and certified to operate the I-

9000, after which he received an operator card valid for three years. The I-9000

does not permit a test to begin until the operator confirms his or her credentials by

scanning an operator card. Thus, Agnor was certified at the time of Brown’s test.

And as discussed above, Agnor properly administered the test on Brown.

Accordingly, the Court finds that the State has carried its burden to lay

foundation for the admissibility of the Intoxilyzer 9000’s results. The Motion in

Limine is GRANTED.

56
VI. Conclusion

Compelling Brown to submit to a chemical breath test is subject to Fourth

Amendment protections. It is the State’s burden to prove probable cause existed to

compel the test. Under the totality of the circumstances, through Agnor’s

observations and the result of various field tests, the State has shown that probable

cause existed. Therefore, Brown’s Motion is DENIED.

The Intoxilyzer 9000 is Delaware’s newly deployed EBT device. It uses the

same IR technology as its predecessors, the Intoxilyzer 4011AS, 5000, and 5000EN.

This technology satisfies the rigors of DRE 702 and Daubert. The I-9000 is an

upgraded version of the I-5000 and none of the new features or customizations

implemented by the DSPCL impact the reliability of the technology. The State

satisfied its burden to demonstrate that the Intoxilyzer 9000 is reliable and relevant.

The State also satisfied its burden to show that the particular Intoxilyzer 9000

used to test Brown was working properly and that Agnor was properly trained on the

device. Accordingly, the State’s Motion in Limine is GRANTED.

IT IS SO ORDERED.

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

57