 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Dunalp v. State12/13/2002
Submitted: October 24, 2002
ORDER
This 13th day of December 2002, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Samuel M. Dunlap, was found guilty by a Superior Court judge of Driving Under the Influence of Alcohol ("DUI"), Driving While License is Suspended or Revoked and Driving After Judgment Prohibited. Dunlap was sentenced to a total of 8 years incarceration at Level V, to be suspended after 15 months and successful completion of the Key Program for decreasing levels of probation. This is Dunlap's direct appeal.
(2) Dunlap's trial counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.
(3) Dunlap's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Dunlap's counsel informed Dunlap of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcript. Dunlap was also informed of his right to supplement his attorney's presentation. Dunlap responded with a brief that raises two issues for this Court's consideration. The State has responded to the position taken by Dunlap's counsel as well as the issues raised by Dunlap and has moved to affirm the Superior Court's judgment.
(4) Dunlap raises two issues for this Court's consideration. He claims that: a) the breath test result indicating a blood alcohol level of .194 should have been suppressed because the arresting officer did not have reasonable suspicion to stop him for DUI; and b) the testimony of the arresting officer at the suppression hearing was not credible and should not have been allowed.
(5) In February 2002, Dunlap's counsel filed a pre-trial motion to suppress the breath test result on the ground that the arresting officer did not have reasonable suspicion to stop Dunlap for DUI. At the suppression hearing, the evidence established that Jason Bergman, a patrolman with the Millsboro police department, was on patrol the evening of November 4, 2001. At around 10:00 p.m., Bergman's attention was drawn to a green Ford Ranger driven by Dunlap. Bergman ran a registration check using the computer in his vehicle and cross checked that with the driver's license. That check revealed that the driver's license had been suspended and that the holder of the license had a history of DUI charges. The driver of the Ranger also matched a description of the driver with the suspended license. Bergman noted that the Ranger was traveling under 10 mph in a 25 mile per hour zone and that it was weaving as it traveled westbound on Old Landing Road and crossed over Route 113. Bergman activated his emergency lights and siren and followed the Ranger to the intersection of Old Landing Road and Delaware Avenue, where it stopped.
(6) After getting out of the police car, Bergman approached the Ranger and asked Dunlap for his registration, driver's license and proof of insurance. Dunlap angrily replied that Bergman was "stup
Page 1 2 Delaware DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|