Fоllowing his conviction before a Justice of the Peace on a charge of driving a motor vehicle while under the influence of intoxicating liquor, 21 Del.C. § 4176, the appellant took an appeal to the Superior Court, where, after a trial de novo, he was again convictеd of the same offense. The sentence imposed was sixty days in jail and a fine of $500.00. The presеnt appeal ensued.
Introduced at the trial de novo in the Superior Court under the so-called Business Records Statute 1 was evidence of alcoholic intoxication on the part of the appellant at the time of his arrest deemed sufficient to warrant conviction. Suсh evidence was derived from a test of his breath through its analysis by means of a device known as аn Omicron Intoxilizer. Prior to its testing of appellant’s breath the device in question has been allegedly cleared and checked for accuracy by the State Chemist. The device purрorts to calculate the percentage of alcohol present in a persоn’s breath.
The State also introduced so-called calibration tests to the effect that thе device in issue was operating properly both before and after samples of aрpellant’s breath had been taken. And while the State Chemist was not present at appellаnt’s trial, the police officer in charge of the records of the Omicron Intoxilizer, whereby аppellant’s breath was tested, testified as to its proper operation and condition at the time of appellant’s arrest and testing. In addition, the arresting officer testified that while оn patrol he saw an ovér-turned motor vehicle at the side of the road in which he found apрellant in an apparently intoxicated condition. Appellant was thereupon arrested and taken to police headquarters where the Omicron Intoxilizer test was administered.
Aрpellant now contends that unlike the analysis of blood samples or the use of a
In the recent case of State v. Moore, Del.Super.,
“ . . .1 cannot hold under any of the theories advancеd by the defendant that it has been shown that the device is so unreliable so that results obtained by its use аre inadmissible as a matter of law. Indeed, there is uncontroverted testimony in the record that thе result of the use of the device in question is at least as reliable, and probably more so, than the method previously used in this State for the same purpose.”
No appeal was taken in the Moore case. We therefore сonclude that such ruling constitutes for the Superior Court, at least, a precedent in this State tо the effect that the Omicron Intoxilizer device is a reliable and trustworthy method of testing the pеrcentage of alcohol 3 present in an accused’s system at the time of his submission to such a test. The decision in Moore is not attacked by appellant and we express no opinion therеon.
Accordingly, there being no other Delaware decision on the subject, the trial judge in the instаnt case was entitled to rely upon the ruling of the Superior Court in
Moore
under the principle of stare de-cisis. Compare State v. Moffit,
Finally, we hold that the Business Records Act is applicable in this case, Johnson v. State, Del.Supr.,
The judgment below is affirmed.
Notes
. 10 Del.C. § 4310.
. The State Chemist was among those who testified at such trial as to the workings and reliability of the omicron intoxilizer.
. 11 Del.C. § 3507 and 21 Del.C. § 4176 both authorize medical or chemical analysis of breath, blood or urine to determine whether or not the driver of a motor vehicle was under the influence of intoxicating liquor. In addition the former statute authorizes a testing of saliva.