State v. Clark

── State v. Clark ── Court: Superior Court of Delaware Date: May 20, 2026 Category: General SUPERIOR COURT of the STATE OF DELAWARE Jeffrey J Clark Kent County Courthouse Resident Judge 38 The Green Dover, DE 19901 Telephone (302)735-2111 Ms. Kathleen Dickerson, Esquire Mr. Christopher P. Gardner II, DAG Office of Defense Services Department of Justice 45 The Green 102 West Water St. Dover, DE 19901 Dover, DE 19901 Submitted: May 15, 2026 Decided: May 20, 2026 RE: State v. Clark, I.D. No. 2509003414 Counsel: Mr. Clark moves to compel the State to produce slides and other material used by the Delaware State Police Crime Lab (hereinafter, “Crime Lab”) to train police officers to operate the Intoxilizyer 9000 (hereinafter, “the 9000”). The 9000 is an updated and improved alcohol breath testing device used by police agencies around the State in driving under the influence investigations. Mr. Clark, charged with a felony DUI, contends that he belched during the twenty-minute observation period prior to his test. As a result, he contends that any written material or training guidelines in the State’s possession addressing the 9000’s operator instructions are material to the preparation of his defense. The State opposes producing the material. At the outset, it contends that the 9000’s manufacturer, CMI, Inc. (“CMI”), provided no operator or user manual for the device. Rather, the Crime Lab has prepared the only documents explaining these procedures. It has done so for the purpose of training the device’s officer-operators. Accordingly, the training slides are the only written documents in the State’s possession that provide operating procedures for the 9000. The State’s primary reason for resisting production is that it contends the materials are exempt from disclosure because of copyright protection due CMI.1 It relies on Superior Court Criminal Rule 16(b)(2)(A)’s exception to criminal discovery when doing so. The Court has reviewed the materials in camera to resolve the dispute. For the reasons to follow, these slides, which are the only existing written explanation of operator and usage procedures for the 9000, are material to the preparation of Mr. Clark’s defense. Furthermore, they do not fit within the exception to criminal discovery that the State relies upon. Accordingly, Mr. Clark’s motion to compel is granted. BACKGROUND The State charges Mr. Clark with a third offense DUI. CMI manufactured the 9000 and a Dover police officer used the machine to test Mr. Clark’s blood alcohol level after his arrest. Mr. Clark contends that he burped or belched within the twenty- minutes preceding his test. Thus, he argues that the operating guidelines contained in the slides are material to his defense because he believes they recognize a mandatory pre-test observation period. The question regarding whether the long-recognized twenty-minute observation period is (1) foundational for a 9000 result (given the 9000’s internal screenings for excess mouth alcohol), or (2) simply goes to the weight of the 1 At first, the State mistakenly contended that CMI created the training slides and materials. It later corrected that mistake by clarifying that the Crime Lab created them. It maintains, however, that the Crime Lab created them with the use of some information obtained from CMI. 2 evidence has not been addressed for the 9000 as it has been for the 5000.2 Today, the Court need not resolve whether a burp, belch, or regurgitation dur