DUI conviction upheld in Superior Court

DOVER — A felony fourth offense DUI conviction was affirmed Wednesday after a defendant questioned an intoxilyzer result referenced in opening statements but never presented during trial when later found to be faulty.

In a seven-page order, Kent County Superior Court Resident Judge William L. Witham Jr. maintained that prosecutors initially planned to use the result as trial evidence before testimony confirmed it was improperly administered. The Judge instructed the jury not to consider anything said about the Intoxilyzer, the ruling said.

Irvin C. Rothenberg, stopped on Del. 10 in Dover on Dec. 10, 2016, argued that the later refuted reference was “highly improper and unfairly prejudicial” and represented a “bell that simply can’t be unrung with curative instruction.”

A new trial was not warranted, Judge Witham found, because “a prosecutor, in an opening statement, may allude to evidence that he or she intends to offer and believes in good faith will be admissible at trial.

Rothenberg was convicted of DUI of alcohol and/or drugs and failure to yield to a vehicle or pedestrians in an intersection or crosswalk on June 14.

A bid for sentencing to be suspended due to Rothenberg’s supposed medical conditions was also denied. He claimed to suffer from anemia, benign essential hypertension, diabetes, alcoholic cirrhosis of the liver, aortic stenosis, sever degenerative joint disease and eye conditions that required frequent office visits.

A “substantial risk to the community” would arise if Rothenberg was not incarcerated, according to Judge Witham, who pointed to another drinking and driving case opinion to support the stance.

Also, according to the Court, “No evidence has been submitted to show that the Department of Correction could not insure that his medical needs will be met …”

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