CHAPTER 325

FORMERLY

HOUSE BILL NO. 466

AS AMENDED BY HOUSE AMENDMENT NO. 1 AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 35, TITLE 11 AND CHAPTER 41 OF TITLE 21 OF THE DELAWARE CODE RELATING TO CHAIN OF CUSTODY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 35, Title 11 of the Delaware Code by deleting Section 3505 in its entirety.

Section 2. Amend §4177 Subchapter IX, Chapter 41, Title 21 of the Delaware Code by creating a new subsection, to be designated as subsection (g), to read as follows:

"(g) In any proceeding for a violation of subsection (a) of this section, evidence may be admitted concerning the amount of alcohol in the blood, breath or urine of such person taken within four (4) hours of the alleged offense. Evidence that there was 0.05 of one percent, or less, by weight of alcohol in the blood, is prima facie evidence that the person was not under the Influence of alcohol liquor within the meaning of the statutory definition of the offense. Evidence that there was at the time more than 0.05 of one percent but less than 0.10 of one percent by weight of alcohol in the blood shall not give rise to any presumption that the person was or was not under the influence of alcohol liquor, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol liquor. Evidence that there was at the time 0.10 of one percent, or more, by weight of alcohol in the blood is prima facie evidence that the person was under the influence of alcohol liquor within the meaning of the statutory definition of the offense. A jury shall be instructed by the court in accordance with this subsection."

Section 3. Amend §4177 Subchapter IX, Chapter 41, Title 21 of the Delaware Code by creating a new subsection, to be designated as subsection (h), to read as follows:

"(a) For the purpose of introducing evidence as defined in subsection (g) of this section, a report signed by the Forensic Toxologist or Forensic Chemist who performed the test or tests as to its nature is prima facie evidence that the blood delivered was properly tested under procedures approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, that those procedures are legally reliable, that the blood was delivered by the officer or persons stated in the report, and that the blood contained the alcohol therein stated, without the necessity of the Forensic Toxologist or Forensic Chemist personally appearing in court, provided the report identifies the Forensic Toxologist or Forensic Chemist as an individual certified by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, or any county or municipal police department employing medical analysis of blood, as qualified under standards approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner to analyze the blood. The report must state that the chemist made an analysis of the blood under the procedures approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner and also state that the blood, in his or her opinion, contains the amount of alcohol liquor within the meaning of 21 al. C. §4177. Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumption raised by the report. For purposes of establishing the chain of physical custody or control of evidence defined by subsection (g) of this section, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement, in accordance with the same procedures outlined in 10 al C. §4331(c). In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least fifteen (15) days prior to the trial, require the presence of the Forensic Toxologist or Forensic Chemist, or any person in the chain of custody as a prosecution witness."

Approved July 8, 1994