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Bodner v. State5/30/2000
Submitted: March 21, 2000
Upon appeal from the Superior Court. REVERSED AND REMANDED.
This is an appeal by the defendant-appellant, Judy Bodner, from final judgments of the Superior Court. Bodner was charged with: Driving Under the Influence of Alcohol, Escape in the Third Degree, and Driving During Revocation. Following a jury trial, Bodner was found guilty of all counts.
Bodner has raised two issues in this direct appeal. First, she contends that the Superior Court erroneously denied her request for a jury instruction explaining the element of "actual physical control" with regard to the charge of Driving Under the Influence . Second, she submits that the Superior Court erroneously denied her request for a jury instruction on the affirmative defense of "justification/choice-of-evils," as set forth in 11 Del. C. § 463.
We have concluded that both of Bodner's contentions are meritorious. Consequently, the judgments of the Superior Court must be reversed. This matter will be remanded for a new trial.
Facts
On the evening of August 16, 1998, Bodner called the Delaware State Police to report that her car was stuck on a railroad track near Cheswold. She requested help in moving the car off the railroad track. Bodner was advised that a police officer would come to the scene to help. She was also asked to remain at the nearby home where she was using the telephone. Bodner replied that she would not remain as requested because the officers would charge her with Driving Under the Influence of Alcohol.
Corporal Donald Christie, Jr. of the Delaware State Police responded to the scene near Cheswold. He found the vehicle, which was owned by Bodner's boyfriend, lodged on the railroad tracks. He then drove his marked police car into a nearby mobile home park. Bodner walked up to the police vehicle and was taken into custody. She was obviously intoxicated.
Corporal Christie obtained the car keys from Bodner. He was able to move the car off the railroad tracks. Corporal Christie testified that when he moved the car from the railroad tracks "it wasn't a simple procedure." When he returned to his police vehicle, Bodner had escaped. He found her hiding in a nearby mobile home.
Bodner told Corporal Christie, and she testified at trial, that she was not driving the car when it became stuck on the railroad tracks. Bodner testified that she and her boyfriend had gone to a party near Cheswold. Her boyfriend left with other friends to go to a bar in Maryland. Bodner was extremely intoxicated and could not drive. According to Bodner, after asking several people for help in getting home, a man attending the party, previously unknown to Bodner, offered to drive her home in her boyfriend's vehicle.
Bodner testified that she was sick and slept during most of the ride until the unknown driver awakened her because the car had stalled on the railroad tracks. He then left the vehicle. Bodner testified that she then got behind the wheel and tried to move the car off the tracks, but she was unable to do so. She left the car and walked to a nearby home to call the police for help. She testified that because she was drunk and the driver had disappeared, she feared being arrested for Driving Under the Influence of Alcohol.
Corporal Christie testified that other police units "canvassed the area" to look for anyone meeting the description of the driver. Bodner also testified that she and her boyfriend had tried to locate the person who had driven her, but were unable to do so. No one interviewed the mobile home park residents or checked the homes in an attempt to locate the driver.
Bodner
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