SCOTT, J. 

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

)

)

 v. ) ID NO. 1909006286

)

ALOK PATEL, )

)

)

Decided: February 26, 2021

ORDER

Upon Defendant Alok Patel’s Motion in Limine to Exclude Blood Test Results

DENIED.

Jordan A. Braunsberg, Esquire, Department of Justice, Wilmington, Delaware, 

Attorney for the State of Delaware. 

Joseph A. Hurley, Esquire, Law Office of Joseph A. Hurley, Wilmington, Delaware, 

Attorney for the Defendant. 
1

Before the Court is Defendant Alok Patel’s (“Mr. Patel”) Motion in Limine to 

exclude his blood test results. For the following reasons, Mr. Patel’s Motion in 

Limine is DENIED. 

Relevant Facts

On September 11, 2019, an officer of the Newark Police Department, in an 

incident involving traffic violations, arrested Mr. Patel and alleged he was driving 

under the influence (“DUI”).

1 Following his arrest, the Newark Police Department 

obtained a blood search warrant.2 Approximately two hours after Mr. Patel was 

initially stopped, a phlebotomist from Seascape Health Alliance (“Ms. Allen”)

procured a sample of Mr. Patel’s blood. 

On October 27, 2020, after the parties’ second Final Case Review, Mr. Patel 

requested the State to share the instructions that accompany the DSP Blood Kit. On 

November 2, 2020, the State provided the DSP Blood Kit instructions (the “DSP 

Instructions”) and provided a five-page instruction manual (the “Insert”) from the 

manufacturer of the blood collection tube that is also included in the DSP Blood 

Kit.

3

1 State’s Answ. to Def.’s Mot. at ¶ 5. 

2

Id. at ¶ 6.

3

Id. at ¶ 2. 
2

The DSP Instructions state: “[i]mmediately after blood collection, assure 

proper mixing of anticoagulant/preservative powder by slowly and completely 

inverting the tube.”4

The Insert states, in pertinent part, that:

For proper additive performance, invert BD SSTTM Tubes or Plus Serum Tubes 5 

times. Invert BD CAT Tubes 5-6 times. Invert BD SSTTM II Advance Tubes 6 

times. Invert Citrate or CTAD tubes 3-4 times. Invert all other filled additive tubes 

8-10 times. [...]. Insufficient mixing or delayed mixing in serum tubes may result 

in delayed clotting and incorrect test results. In tubes with anticoagulants, 

inadequate mixing may result in platelet clumping, clotting and/or incorrect 

test results.5

Additionally, the Insert provides a laboratory the authority to develop their 

own collection procedures for the testing instruments:

Whenever changing any manufacturer’s blood collection tube types, size, 

handling, processing, or storage condition for a particular laboratory assay, 

the laboratory personnel should review the tube manufacturer’s data 

and their own data to establish/verify the reference range for a specific 

instrument/reagent system. Based on such information, the laboratory 

can then decide if a change is appropriate.

6

On November 13, 2020, Defendant filed his (1) Motion in Limine to Exclude 

Blood Test Results of Defendant (“Motion”) and his (2) Memorandum in Support 

of In Limine Motion to Exclude Blood Test Results (“Memorandum”). On 

November 30, 2020, the State filed an Answer to Defendant’s Motion in Limine to 

Exclude Blood Test Results.

4

Id. at ¶ 7.

5

Id., Ex. B. at p. 4 (Instruction 13) (emphasis added). 

6

Id. at p. 4. (emphasis added).
3

Parties Assertions

A. The Defendant

In his Motion, Defendant argues that “a sufficient foundation will not be 

presented by the State to permit admissibility of the instructions nor will there be 

sufficient evidence of appropriate compliance therewith.” As a result, through his 

motion, Defendant moves “to exclude the BAC calculation that was measured after 

the collection of the Defendant’s blood.”7

In his Memorandum, Defendant clarifies his argument and states that 

“[h]istorically, upon information and belief, the same manufacturer has required a 

complete inversion of the collection tube no fewer than five times, post collection, 

in order to bring into play the forces of gravity to assure proper distributions” and 

“[t]he version anticipated to be proffered by the State offers no guidance, 

quantitatively.”8 Moreover, the Defendant argues that “the testimony of the State 

Chemist that proper distribution can be obtained by whatever method she advocates 

is not a substitute, since she has no background in calibrating that particular phase 

of collection albeit much experience in the laboratory analysis of the product, 

whatever its constitution, that is tested.”9

7 Def.’s Mot. in Limine “to Exclude Blood Test Results of the Defendant” at p. 2.

8 Def.’s Mem. In Supp. of In Limine Motion to Exclude Blood Test Results at p. 2. 

9

Id. 
4

As a result, Defendant moves “to exclude the written manufacturer’s 

instruction and/or the ultimate test results based upon a failure to comply with DRE 

702 in presenting, by a preponderance of the evidence, the reliable marker to guide 

the collection process.”10

Defendant argues that the Insert, not the DSP Instructions, set the foundational 

requirements for entering Defendant’s blood test results (“BAC Results”) into 

evidence. Additionally, Defendant argues that the State Chemist’s testimony is not 

sufficient because she has no background in the collection of blood.11 As a result, 

Defendant moves to exclude the Insert and Defendant’s BAC Results based on the 

State’s inability to comply with Delaware Rule of Evidence 702 in presenting the 

State’s compliance with collection of Defendant’s blood.

B. The State

The State disagrees that the Insert sets the foundational requirements for entry 

of Defendant’s BAC Results. The State claims that they only need to show

compliance with the DSP Instructions.

12 However, even if compliance with the Insert 

is the proper foundational requirement, the State argues that they have complied with 

the Insert because the Insert provides authority for a lab to establish its own 

10 Id. at pp. 2-3. 

11 Id. at p. 2. 

12 State’s Answ. to Def.’s Mot. at ¶ 12. 
5

protocols.

13 The State asserts that the DSP Instructions are authorized by Julie Willey 

(“Director Willey”), the Director of the Delaware State Police Crime Lab 

(“DSPCL”).14 Director Willey’s role as Directors of the DSPCL is to “oversee the 

blood and breath DUI program and to also personally perform headspace gas 

chromatograph testing,” (“HSGC”) which includes the testing of the Defendant’s 

blood in the instant matter.15

Moreover, the State argues that, even if the preservative failed to mix 

properly, the failure to properly mix the preservative does not prejudice the 

Defendant because it would actually lower the final BAC level.16

Finally, regarding expert testimony, the State contends that Ms. Allen will 

testify about the collection process and that she inverted the tube “2-3 times.”17

Standard of Review

“A motion in limine typically concerns the admissibility of evidence and is a 

preliminary motion directed at establishing the ‘ground rules applicable at trial.’”

18

“The admissibility of intoxilyzer test results center on the State providing an 

13 Id. 

14 Id. at ¶ 7.

15 Id. (see fn. 6).

16 Id. at ¶ 21.

17 Id. at ¶ 6.

18 Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 500 (citing to 3 Moore's Federal 

Practice § 16.77[4][d] (3d ed.1997)).
6

adequate evidentiary foundation for the test result’s admission.”19 Compliance with 

an intoxilyzer test’s instructions or requirements is the guarantee of reliability and 

accuracy that is the foundational cornerstone to the admissibility of the results of a 

blood test.

20

Delaware Rule of Evidence 702 (“D.R.E. 702”) governs the admissibility of 

expert testimony and provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, 

or education may testify in the form of an opinion or otherwise if:

(a) The expert's scientific, technical, or other specialized knowledge will 

help the trier of fact to understand the evidence or to determine a fact in 

issue;

(b) The testimony is based upon sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts 

of the case.21

The Delaware Supreme Court created a five-prong test in determining the 

admissibility of scientific or technical expert's testimony.22 Therefore, this Court 

must also determine whether:

1. The witness is qualified;23

2. The evidence is otherwise admissible, relevant, and reliable;24

19 Clawson v. State, 867 A.2d 187, 192-93 (Del. 2005).

20 Hunter v. State, 55 A.3d 360, 364-66; see also Clawson, 867 A.2d at 191 (Del. 

2005). 

21 D.R.E. 702. 

22 Williams v. Desperito, 2011 WL 7452803, at *3 (Del. Super. Ct. Oct. 24, 2011) 

(citing Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 

2006); Tolson v. State, 900 A.2d 639, 645 (Del. 2006)).

23 See D.R.E. 702.

24 See D.R.E. 401; D.R.E. 402.
7

3. The bases for the opinion are those reasonably relied upon by experts in 

the field;25

4. The specialized knowledge being offered will assist the trier of fact to 

understand the evidence or determine a fact in issue;26 and

5. The evidence does not create unfair prejudice, confuse the issues, or 

mislead the jury.27

“[T]he proponent of the proffered expert testimony bears the burden of 

establishing the relevance, reliability, and admissibility by a preponderance of the 

evidence.”28 However, the proponent must only demonstrate that the expert's 

opinions are reliable.29 Thus, where an expert's opinion is challenged, “the trial judge 

must decide if the expert's testimony ‘has a reliable basis in the knowledge and 

experience of the relevant discipline.’”30

Discussion

A. Superior Court’s Review for Admission of BAC Results into Evidence

When faced with whether to admit into evidence BAC Results, the Court first 

inquires into whether the instructions for that particular test were complied with.31

The Court should admit the evidence so long as the State provides a reasonable basis 

25 See D.R.E. 703.

26 See D.R.E. 702.

27 See D.R.E. 403

28 Minner v. Am. Mortg. & Guar. Co., 791 A.2d 826, 843 (Del. Super. Ct. 2000).

29 Williams, 2011 WL 7452803, at *3 (citing In re Asbestos Litig., 911 A.2d 1176, 

1201 (Del. Super. 2006)).

30 M.G. Bancorporation, 737 A.2d at 521 (citing Kumho, 526 U.S. at 138 (quoting 

Daubert, 509 U.S. at 592)).

31 Clawson, 867 A.2d at 192-93 (Del. 2005).
8

for the Court to find that the instructions were followed.

32 If the State does so, then 

the burden shifts to the defendant to show that the instructions were not actually

followed or otherwise rendered the results scientifically inaccurate and unreliable.33

If the instructions were not followed, established either through expert 

statements34 or witness testimony,35 or are otherwise somehow inaccurate and 

unreliable,36 then the Court must exclude the BAC Results.

a. Foundational Requirements: DSP Instructions vs. Insert

The parties fight over which instructions to apply and whether the State has 

complied with the relevant instructions. Here, the Insert provides a laboratory the 

authority to develop their own collection procedures for the testing instruments.

Whenever changing any manufacturer’s blood collection tube types, size, 

handling, processing, or storage condition for a particular laboratory assay, 

the laboratory personnel should review the tube manufacturer’s data 

and their own data to establish/verify the reference range for a specific 

instrument/reagent system. Based on such information, the laboratory 

can then decide if a change is appropriate.

37

As this Court stated in Fountain, this language “anticipates end users 

developing their own instructions and protocol.”38 Under this authority, the DSPCL

32 Ayala, 204 A.3d at 835-36 (Del. 2019).

33 Hunter, 55 A.3d at 366 (Del. 2012).

34 Fountain, 2016 WL 4542741, at *5 (Del. Super. 2016).

35 Hunter, 55 A.3d at 35-36(Del. 2012).

36 Id.

37 State’s Answ., Ex. B. at p. 4. (emphasis added).

38 Fountain, 2016 WL 4542741, at *5 (Del. Super. 2016).
9

established a collection and testing procedure: the DSP Instructions.39 As a result,

the State is required to show compliance with the DSP Instructions.

b. The State’s Duty under the DSP Instructions

The DSP Instructions require the blood drawer to, “[i]mmediately after blood 

collection, assure proper mixing of anticoagulant/preservative powder by slowly and 

completely inverting the tube.”

According to the State, Ms. Allen will testify that she inverts the blood tubes 

to ensure the additive powders mix into the blood samples and she inverts the bloods 

tubes roughly 2-3 times.40 This conduct is consistent with the instructions.

B. The Issue Concerning Inversion Requirements

Defendant argues that “the testimony of the State Chemist that proper 

distribution can be obtained by whatever method she advocates is not a substitute, 

since she has no background in calibrating that particular phase of collection albeit 

much experience in the laboratory analysis of the product, whatever its constitution, 

that is tested.”41 By distribution, the Defendant refers to the mixture of blood and 

additive powders in the blood tube contained within the DSP Blood Kit.

39 In Fountain, the Court noted that Director Willey stated that she did not create 

the instructions, but rather someone had done so before she joined the DSPCL. 

40 State’s Answ. at ¶ 6. 

41 Id. 
10

Based on this Court’s experience with the same prosecutor and defense 

counsel as in State v. Dyron Green, the Defendant is challenging Director Willey’s 

authority to change the DSP instructions. In Dyron Green, Director Willey stated

that the instructions had required, pre-2014, the tube to be inverted five times.

42

However, after concluding that there was no documentation that verified the 

inversion requirement of five times,43 Director Willey stated that she removed this 

requirement and instead required the phlebotomist to “[i]mmediately after 

collection, assure proper mixing of anticoagulant/preservative powder by slowly and 

completely inverting the tube.”44

The issue before the Court is better summarized as whether Director Willey 

possessed the authority to change the DSP Instructions and whether the additive 

powders were mixed sufficiently here to provide a reliable sample. For the reasons 

that follow, Director Willey had the requisite authority, knowledge, and experience 

to change the DSP Instructions.

a. Director Willey’s Authority

Director Willey, the Director of the DSPCL, “oversees the blood and breath

DUI program and [] also personally perform[s] headspace gas chromatograph 

42 State v. Dyron Green, I.D. 1804014579, July 9, 2019 Trial Tr. at p. 120 (lns. 18-

19). 

43 Id. at p. 129, lns. 11-13. 

44 State’s Answ. at ¶ 7.
11

testing[.]”45 According to the State, Director Willey has authorized the use of the 

DSP Instructions,46 which informs phlebotomists, like Ms. Allen here, as to the 

specific requirements of an individual’s blood draw. Director Willey, having the 

responsibility and oversight over the blood and breath DUI program in Delaware, is 

authorized to make changes to the blood and breath DUI program – which includes 

changes to established protocols in collecting blood samples. Thus, there is no 

dispute that Director Willey had the authority to change the DSP Instructions. 

b. Reliable Sample

The issue of whether Mr. Patel’s sample was collected and processed in a 

manner that produced a reliable and accurate test result is at issue here.

i. Proposed Testimony

Director Willey will testify as to the reliability of the collection procedures 

and Defendant’s sample at trial. According to the State, Director Willey will testify 

that: (1) the failure to mix the additive powders properly will result in the blood 

sample coagulating; (2) coagulated blood cannot be tested via the HSGC test; (3) a 

visual inspection of a blood sample would reveal whether the blood sample was 

coagulated; (4) DSPCL inspects all blood samples for coagulation and for any other 

irregularities, such as odor or discoloration, prior to any testing; (5) she personally 

45 Id. at p. 4 (fn. 6). 

46 Id. at ¶ 7. 
12

inspected Defendant’s blood sample and determined that no coagulation occurred; 

(6) the HSGC test results indicated a blood alcohol content of .16; and (7) prior 

scientific evidence from the past three decades conclude that the presence or absence 

of a preservative does not impact the integrity of the blood sample relative to its 

alcohol content.47 In light of Defendant’s arguments here, and as she did in Green, 

Director Willey will likely also testify that (8) there is no requirement that the blood 

tube must be inverted a specific number of times to ensure a reliable sample.

ii. Delaware Supreme Court’s Five Factor Test48

The Court, in determining the admissibility of scientific or technical expert 

testimony, must analyze whether:

1. The witness is qualified; 

2. The evidence is otherwise admissible, relevant, and reliable; 

3. The bases for the opinion are those reasonably relied upon by experts in 

the field; 

4. The specialized knowledge being offered will assist the trier of fact to 

understand the evidence or determine a fact in issue; and

5. The evidence does not create unfair prejudice, confuse the issues, or 

mislead the jury.

On the first day of trial in State v. Dyron Green, Director Willey stated that: 

(1) she has been employed at the DSPCL for the last twenty-seven (27) years;49 (2) 

47 State’s Answ. at ¶¶ 8-10. 

48 Williams v. Desperito, 2011 WL 7452803, at *3 (Del. Super. Ct. Oct. 24, 2011) 

(citing Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 

2006); Tolson v. State, 900 A.2d 639, 645 (Del. 2006)).

49 State v. Dyron Green, July 9, 2019 Trial Tr. at p. 91 (ln. 10). This statement was 

made in 2019. Since it is now 2021, it can be assumed that Director Willey has 

been employed at DSPCL for roughly 28-29 years. 
13

among other responsibilities, she “analyzes alcohol or blood alcohols for cases from 

within New Castle County;”50 (3) she holds a Bachelor of Science degree in genetic 

engineering, a second Bachelor of Science degree in biology, and a minor degree in 

chemistry;51 (4) she has completed additional on-the-job courses that she had the 

opportunity to attend through her employment in forensics with the State of 

Delaware;52 and (5) she has analyzed blood samples for the past eleven (11) years.53

Director Willey is qualified as an expert concerning blood alcohol analysis, in both 

collection and testing, by knowledge, skill, experience, training, and education.54

All of the statements above involve Director Willey’s personal experience in 

testing Defendant’s blood sample here or are otherwise based on both her extensive 

education and professional experience in performing HSGC testing. These 

statements are relevant, reliable, and helpful to the jury in understanding the facts in 

this case. Also, these statements would not create unfair prejudice to the Defendant, 

or otherwise confuse or mislead the jury. These statements would also be helpful in 

resolving, in light of Defendant’s issue concerning whether the blood tube was 

inverted adequately to prevent coagulation, whether Defendant’s sample was 

50 Id. (lns. 13-19).

51 Id. at p. 92 (lns. 1-3).

52 Id. (lns. 4-6). 

53 Id. (lns. 14-15). 

54 Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del.2006); 

Tolson v. State, 900 A.2d 639, 645 (Del.2006).
14

adequately mixed and thus whether the Defendant’s HSGC test was conducted 

properly. 

There is no evidence that there is a minimum number of inversions required 

to ensure an adequate mixture of the additive powders with the blood sample. Mr. 

Patel has not proffered any evidence to support his contention. Director Willey has 

previously stated there is no scientific evidence that a tube must be turned a specific 

number of times to ensure mixture.55 The State supplies scientific studies in their 

Answer;

56 however, those “studies do not proscribe a specified number of inversions 

and instead focus on the presence of absence of the preservatives.”57

Notably, the studies are relevant here. This body of scientific literature 

demonstrates that the presence or absence of preservatives in blood alcohol 

specimens either does not affect blood alcohol content or shows a slight decrease 

over time.

The literature is persuasive as it shows that the absence of the preservative 

would cause the BAC level in any given blood sample to either remain the same or 

decrease over time. Most relevant here is, attached as State’s Exhibit G, the 

Inferences and Legal Considerations Following a Blood Collection Tube Recall (the 

55 State v. Dyron Green, July 9, 2019 Trial Tr. at p. 129 (lns. 11-13).

56 See State’s Answ., Ex. A-G. 

57 State’s Answ. at ¶ 21.
15

“2020 Study”).

59 The 2020 Study addressed the impact of a 2019 recall of BD 

Collection Tubes, the same tubes used here, used in criminal prosecutions because 

they did not contain preservatives or anticoagulant powder. After a review of 

historical scientific studies on the subject, some of which is provided by the State, 

the 2020 Study concluded that the “possibility of reporting falsely high blood ethanol 

concentrations in gray-top tubes without anticoagulant and preservative is 

overwhelmingly low when samples are taken from living persons.”60 Moreover, that 

study also determined that, in the absence of a preservative, “[c]oncentrations of 

ethanol, and many other drugs, actually decrease during storage.”61

The 2020 Study provides persuasive scientific evidence that the absence of a 

preservative or anticoagulant in a given blood sample has little effect on the outcome 

of the BAC level. 

The relevant inquiry here is whether the sample is reliable. This inquiry is 

resolved if it is determined that the sample is adequately mixed. The number of 

inversions, as stated above, is not relevant here. 

59 State’s Answ., Ex. G. 

60 Id. at p. 3.

61 Id.
16

Conclusion

Director Willey is qualified in blood collection and testing, and therefore is 

the proper person to authorize changes to the State’s collection procedures, the DSP 

Instructions, in accordance with the Insert. For the reasons stated above, Mr. Patel’s

Motion in Limine is DENIED. 

IT IS SO ORDERED.

______________________________

Judge Calvin L. Scott