Background
Mr. Clark was charged with felony DUI (his third offense). A Dover police officer used the Intoxilyzer 9000—a newer breath-testing device deployed across Delaware—to measure his blood alcohol level after his arrest. Clark contended that he belched during the mandatory twenty-minute observation period before the test, which could have affected the accuracy of the result. He sought discovery of the training slides and other materials used by the Delaware State Police Crime Lab to teach officers how to operate the Intoxilyzer 9000.
The State resisted production. It first claimed, mistakenly, that the device’s manufacturer, CMI, Inc., had created the training slides. After correcting itself to acknowledge the Crime Lab authored them, the State nevertheless argued the materials were exempt from criminal discovery under Superior Court Criminal Rule 16(b)(2)(A) because they contained information protected by CMI’s copyrights. Notably, CMI provided no operator or user manual for the Intoxilyzer 9000; the Crime Lab’s training slides were the only written operating procedures in existence for the device in Delaware.
After the State refused to produce the slides, the court ordered an in camera review—meaning the judge personally reviewed the materials in private to decide whether they should be disclosed.
The Court’s Holding
Judge Clark granted the motion to compel on every ground. First, the court found the training slides were discoverable under Rule 16(b)(1)(E), which requires disclosure of documents in the State’s custody or control that are material to the preparation of the defendant’s defense. The Crime Lab, a state law enforcement agency, plainly possessed and controlled the slides—regardless of who originally created them. As for materiality, the court found the documents were essential to Clark’s defense in two ways: they referenced the twenty-minute observation period that Clark alleges was compromised, and they were the only written standards against which a defendant could measure whether an officer properly operated the machine. The court emphasized that due process requires a defendant to be able to confirm and challenge whether the administering officer followed proper procedures.
Second, the court rejected the State’s claim that the slides were shielded from disclosure. The Rule 16(b)(2)(A) exception protects work-product and privileged internal documents prepared “in connection with the investigation or prosecution of a case.” The training slides were created to teach officers how to use the device long before Clark’s case ever arose, so the work-product doctrine simply did not apply. The court further held that a third party’s alleged copyright cannot be invoked by the State to withhold material evidence, noting both a standing problem and the fundamental point that factual operating instructions for a scientific device are not the kind of creative expression copyright protects.
The court also declined to issue a protective order limiting dissemination of the materials, finding the State offered no justification for one.
Key Takeaways
- When a breath-testing device’s only written operating procedures exist in State-created training materials, those materials are discoverable in a DUI prosecution. Due process demands that defendants have access to the standards against which an officer’s performance can be measured.
- The work-product exception to criminal discovery applies only to documents prepared in connection with a specific investigation or prosecution—not to general training materials created well in advance of any case.
- The State cannot invoke a third party’s copyright to shield otherwise discoverable evidence. Factual operating instructions are not protectable expression, and the State lacks standing to assert someone else’s intellectual property rights as a discovery shield.
Why It Matters
This decision has immediate practical significance for DUI defense in Delaware and potentially beyond. With the Intoxilyzer 9000 replacing older devices statewide, and with no manufacturer-provided operator manual in existence, the training slides are the only written guide to how the machine should be used. By ordering full production, the court ensures that defendants can meaningfully challenge breath-test results—a cornerstone of DUI prosecution. Defense attorneys handling cases involving the Intoxilyzer 9000 now have clear authority to demand these materials.
The ruling also sends a broader signal about the limits of creative discovery objections. Prosecutors who resist disclosure based on novel privilege theories—here, a manufacturer’s unspecified copyrights—can expect skepticism when the materials at issue are plainly factual and directly relevant to a defendant’s right to a fair trial. For manufacturers of forensic equipment, the opinion is a reminder that selling devices to government agencies without providing written operating manuals does not eliminate the obligation to disclose how the devices work in criminal proceedings.