Background
Around 11:30 p.m., a Lewes police officer, Sergeant Moyer, saw Henry Tang driving without his headlights on. The officer began following Tang’s vehicle, at which point the headlights turned on. Instead of initiating a stop, the officer continued to follow. He then observed Tang’s vehicle weave within its lane and drive onto a bike trail on the shoulder of the road. Sergeant Moyer still did not initiate a stop, following Tang beyond the city limits of Lewes.
Outside the city, Tang tailgated another car and then swerved across the double yellow lines into oncoming traffic, narrowly avoiding a collision. At this point, the officer activated his emergency equipment to conduct a traffic stop. This action also triggered his mobile video recorder (MVR), which saved the 30 seconds of footage prior to activation. Upon approaching the vehicle, the officer smelled alcohol, and Tang admitted to drinking. Tang performed poorly on several field sobriety tests and was arrested. At the police station, two breath tests registered his BAC at 0.166 and 0.162, both over the legal limit.
Before his bench trial, Tang moved to suppress all evidence from the stop, arguing that the officer lacked reasonable suspicion. He contended the court should not consider the initial violations in Lewes because the officer chose not to activate his MVR to record them. The trial court denied the motion and, after finding him guilty of DUI, Tang appealed.
The Court’s Holding
The Delaware Supreme Court affirmed the conviction, rejecting all three of Tang’s arguments on appeal. First, the Court held that Sergeant Moyer had no legal duty to activate his MVR when he first observed the traffic violations. Citing precedent, the Court confirmed that Delaware law does not impose an “affirmative duty to video record all driving under the influence investigations.” It rejected Tang’s assertion that the officer’s “conscious choice” not to record was equivalent to a failure to preserve evidence. The duty to preserve applies to existing exculpatory evidence, not a duty to create or seek out such evidence in the first place.
Second, the Court found that the officer clearly possessed reasonable articulable suspicion to stop Tang’s vehicle. The Court noted that even a single traffic violation is sufficient for a stop. Here, the officer witnessed multiple violations, including driving without headlights, driving on a bike path, tailgating, and swerving into oncoming traffic. The Court held that the trial court properly considered the officer’s testimony regarding the unrecorded violations that occurred inside Lewes.
Finally, the Court ruled that the trial court did not abuse its discretion by admitting the BAC test results. Tang argued the State failed to lay a proper foundation because it could not produce a manufacturer’s manual for the Intoxilyzer 9000 device. The Court found this argument unpersuasive, noting the State cannot produce a manual that does not exist. The State provided operator instruction sheets and the officer testified to his training and the machine’s calibration, which provided an adequate evidentiary foundation for the results’ admission.
Key Takeaways
- Police officers in Delaware do not have an affirmative duty to record all interactions with the public, including DUI investigations.
- An officer’s choice not to activate a dash-cam or body-cam at the outset of an encounter is not a failure to preserve exculpatory evidence. The duty to preserve does not include a duty to create evidence.
- A single traffic violation is sufficient grounds to establish reasonable articulable suspicion for a traffic stop.
- A court may rely on an officer’s testimony about observed traffic violations even if there is no video evidence of those violations.
- The absence of a manufacturer’s manual for a breathalyzer device does not automatically make BAC results inadmissible, as long as the state provides an otherwise adequate evidentiary foundation, such as officer training and certification records.
Why It Matters
This opinion reinforces law enforcement’s discretion regarding when to begin recording an encounter. For defense attorneys, it clarifies that “missing evidence” arguments are unlikely to succeed when the evidence in question was never created in the first place. The ruling makes it difficult to challenge the legality of a stop based on an officer’s failure to record the initial offense that drew their attention. The decision emphasizes that police investigations need only be “reasonably thorough,” not perfect.
Furthermore, the case provides guidance on challenging the admissibility of breathalyzer results. It indicates that the absence of a manufacturer’s manual is not a dispositive issue. Instead, legal challenges should focus on the specific foundation laid by the prosecution in each case, including the operator’s qualifications, the machine’s maintenance and calibration records, and the adherence to established operating procedures.