Brice v. State

MOYLAN, Judge. This appeal by Victor Chandler Brice, a convicted drunken driver, betrays a naive failure on his part to appreciate that the very laws he invokes were designed deliberately to facilitate his conviction, not to shield him from what is virtually an unrelenting search for truth in drunken driving cases. In coping with the social problem of the drunken driver, the judicial mood and the legislative mood are in total accord. From the vantage point of applying federal constitutional law to state criminal convictions for drunken driving, the Supreme Court set the prevailing tone in South Dakota v. Neville, 459 U.S. 553, 558 , 103 S.Ct. 916, 920 , 74 L.Ed.2d 748, 755 (1983). “The situation underlying this case — that of the drunk driver — occurs with tragic frequency on our Nation’s highways.

The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439 , 77 S.Ct. 408, 412 , 1 L.Ed.2d 448 (1957) (‘The increasing slaughter on our highways, most of which ⁵⁶⁷ should be avoidable, now reaches the astounding figures only heard of on the battlefield’); Tate v. Short, 401 U.S. 395, 401 , 91 S.Ct. 668, 672 , 28 L.Ed.2d 130 (1971) (Blackmun, J., concurring) (deploring ‘traffic irresponsibility and the frightful carnage it spews upon our highways’); Perez v. Campbell, 402 U.S. 637, 657, 672 , 91 S.Ct. 1704, 1715, 1722 , 29 L.Ed.2d 233 (1971) (Blackmun, J., concurring) (‘The slaughter on the highways of this Nation exceeds the death toll of all our wars’); Mackey v. Montrym, 443 U.S. 1, 17-19 , 99 S.Ct. 2612, 2620-2621 , 61 L.Ed.2d 321 (1979) (recognizing the ‘compelling interest in highway safety’).” The attitude of the Court of Appeals echoes that of the Supreme Court. In Little v. State, 300 Md. 485, 504 , 479 A.2d 903 (1984), Chief Judge Murphy expressed the controlling concern: “Clearly the State has a compelling interest in controlling drunk driving.

Indeed, as the record discloses, about sixty percent of the drivers killed in automobile accidents have elevated levels of alcohol in their blood; nationally, fifty-five percent of all traffic fatalities are alcohol related. The magnitude of the problem created by intoxicated motorists cannot be exaggerated.” The legislative response has been swift and sure. As Judge Cole pointed out for the Court of Appeals in Willis v. State, 302 Md. 363, 369-370 , 488 A.2d 171 (1985): “The General Assembly ... has attempted to meet the considerable challenge created by this problem by enacting a series of measures to rid our highways of the drunk driver menace. These measures, some of which are decades old, are primarily designed to enhance the ability of prosecutors to deal effectively with the drunk driver problem.” The “series of measures” referred to include prominently the laws dealing with the admissibility of chemical tests for intoxication, now codified in Md.Cts. & Jud.Proc.Code Ann. §§ 10-302 through 10-309, as well as a closely cognate provision dealing with implied consent to such a test, Md. ⁵⁶⁸ Transp.Code Ann. § 16-205.1.

It was with specific reference to §§ 10-302 through 10-309 of the Courts and Judicial Proceedings Article that Judge Cole spoke when he described the measures as “primarily designed to enhance the ability of prosecutors to deal effectively with the drunken driver problem” and as having the deliberate purpose “to rid our highways of the drunk driving menace.” Since all four appellate contentions go to the application of these laws to the appellant in this case, it is fitting to begin by recognizing the appropriate guidelines for statutory construction. In State v. Moon, 291 Md. 463, 477 , 436 A.2d 420 (1981), the Court of Appeals, through Judge Smith, expressly repudiated any notion that the laws here in question were enacted for the protection of the defendant. The legislative purpose, as interpreted by the Court of Appeals, was diametrically to the contrary: “Moon sees the sections here before the Court as having been enacted for the protection of an accused. We see them as concerned with the protection of the public.” In State v. Werkheiser, 299 Md. 529 , 474 A.2d 898 (1984), Judge Couch referred repeatedly to the unequivocal purpose behind § 16-205.1 of the Transportation Article: “The Maryland General Assembly has enacted laws to enhance the ability of prosecutors to deal effectively with the problem of drunken drivers on our highways.” 299 Md. at 533 , 474 A.2d 898 . “The statutory scheme ... illustrates that the particular section at issue here, § 16-205.1(d), was enacted ... to permit a chemical blood test in the absence of actual consent, where the officer had a reasonable basis to suspect the driver was intoxicated or under the influence of alcohol.

Stated simply — this section ‘implies’ the necessary consent.” 299 Md. at 535 , 474 A.2d 898 . “The legislature has evidenced a strong interest in providing prosecutors with scientific evidence of blood alcohol levels.” 299 Md. at 536 , 474 A.2d 898 . “[T]he general intent of the applicable legislation is for the protection of the public____” 299 Md. at 537 , 474 A.2d 898 . “In our view it would do violence to ⁵⁶⁹ the intent of these statutes to read Transp. Art. § 16-205.-l(d)(l)(iii), in isolation and to construe it in a way that would thwart successful prosecution of motorists. It would frustrate the clear legislative intent to provide the state ‘with an easily administered, reliable method of proving intoxication’____ The consent statute and the presumptions a factfinder can draw from the amount of alcohol in the person’s breath or blood ... clearly reflect an intent to aid in the factfinding process.” 299 Md. at 539 , 474 A.2d 898 . With this philosophical imperative firmly in mind, we turn to the case at hand.

The appellant, Victor Chandler Brice, was convicted in the Circuit Court for Somerset County by Judge Alfred T. Truitt, Jr., sitting without a jury, of driving while impaired. He was fined $300 and ordered to pay court costs. Upon this appeal, he mounts four contentions: 1) That under the guidelines of Schmerber v. California read in conjunction with § 16-205.1(d) of the Transportation Article, the taking of blood from him, in his seriously injured condition, was so “shocking to the conscience” as to be a violation of due process of law; 2) That the State was erroneously relieved of its burden of proving that any medication administered did not adversely affect the blood alcohol reading and that the court erroneously allocated to the appellant the burden of proving such adverse impact; 3) That the appellant was not competent to consent to the blood alcohol test; and 4) That the results of the test should not have been admitted because the “Two Hour” Rule was violated. The case against the appellant was overwhelming.

The appellant, a sixty-year-old man, had been employed for 22 years by the Delmarva Power and Light Company. On December 5, 1985, he drove his employer’s large “cherry-picker truck” in the course of employment as a “troubleshooter.” He began work at 8:00 a.m. and drove the truck, making service calls, all day until the accident occurred at ⁵⁷⁰ 4:00 p.m. The appellant acknowledged having consumed four ounces of liquor before going to work that morning. Another driver, travelling behind the appellant on Route 667, observed the appellant weave to the right side of the road initially and then swerve suddenly to the left, crossing the road completely, going into a ditch and overturning his vehicle in an adjacent field.

When Maryland State Trooper Robert Lankford arrived at the scene at 4:05 p.m., he observed the overturned truck in a field and observed the appellant walking in the roadway. The appellant was limping and complaining of pain. Trooper Lankford smelled an “extremely strong odor of alcoholic beverage” upon the appellant’s breath. The trooper also noticed that the appellant’s eyes were bloodshot and his speech was slurred.

The appellant initially told the trooper that the accident had been caused by three deer that had darted in front of his truck. He subsequently changed his story and said that a small car had run him off the road just before the deer ran out in front of him. Trooper Lankford gave the appellant a preliminary breath test and determined that he was a suspect for driving while intoxicated. On cross-examination, the appellant acknowledged that he had been told that he had gone through “withdrawal” in the hospital.

He acknowledged that he had not worked since the accident but had spent 30 days at a treatment center for alcoholism and had attended 154 meetings of Alcoholics Anonymous. The test results on the appellant’s blood showed a blood alcohol content of 0.24 per cent. In that the blood was withdrawn approximately two hours after the accident, the blood alcohol level had inevitably been even higher at the time of the accident. Even at the lower figure of 0.24 per cent, it was almost twice the amount necessary under Md.Cts. & Jud.Proc.Code Ann. § 10-307(e) (0.13 per cent) to give rise to the prima facie inference that the appellant was intoxicated.

Under all of the circumstances, he received quite a break to have been found guilty only of ⁵⁷¹ driving while impaired under § 21-902(b) of the Transportation Article. A New Schmerber Exception The appellant weaves a web of plausible chagrin out of diverse strands. He begins with the Supreme Court decision of Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), in which the Supreme Court found the nonconsensual taking of blood to have been constitutional under the facts of that case. The Supreme Court rejected the idea that the extraction of blood violated the Due Process Clause of the Fourteenth Amendment, citing Breithaupt v. Abram, 352 U.S. 432 , 77 S.Ct. 408 , 1 L.Ed.2d 448 (1957).

It rejected the notion that the extraction of blood violated the Fifth Amendment privilege against compelled self-incrimination, reasoning that the privilege dealt only with testimonial evidence. It rejected the notion that the extraction of blood violated the Sixth Amendment right to the assistance of counsel, because counsel could do no more than inform him that he had no right to resist the extraction. Most significantly, the Supreme Court rejected the notion that the extraction offended the Fourth Amendment. The heart of the holding was that no warrant is required because of the “highly evanescent” nature of the evidence itself.

In discussing the Fourth Amendment issue, the Court observed that the extraction of blood for a blood alcohol analysis is reasonable because it is “a highly effective means of determining the degree to which a person is under the influence of alcohol,” 384 U.S. at 771 , 86 S.Ct. at 1836 , and noting that such “tests are a commonplace in these days of periodic physical examinations.” Id. In describing further why the extraction in the Schmerber case itself did not violate Fourth Amendment principles of reasonableness, the Court made the following observation, upon which the appellant here heavily relies: “Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by ⁵⁷² a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse.

To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.” 384 U.S. at 771-772 , 86 S.Ct. at 1836-1837 . Building upon that reasoning from Schmerber , we struck down the extraction of blood from a suspect in Robinson v. State, 18 Md.App. 678 , 308 A.2d 734 (1973). Before us in Robinson was the type of circumstance directly condemned by the Supreme Court. Taking the blood from the suspect in the Robinson case was not a physician or other medical personnel but Corporal Summers of the Prince George’s County Police Department.

Judge Gilbert (now Chief Judge) pointed out for us, at 18 Md.App. 694 , 308 A.2d 734 : “It appears on the record before us that Summers, unassisted by a physician or other medical personnel, removed the blood from the appellant. There was no testimony as to any qualification possessed by Summers to withdraw blood from the body of another. There is nothing that would indicate that the blood was withdrawn in the ‘hospital environment’ suggested by Schmerber . A clear inference may be drawn from the testimony to the effect that appellant’s blood sample was taken while he was in the county detention center.” The situation at hand does not remotely approach that discussed in Schmerber or dealt with in Robinson .

Here, the blood was drawn by a nurse and in a hospital. Since a qualified nurse withdrew the blood under appropriately antiseptic conditions, there was obviously not the threat that might be posed by a medically untrained policeman operating in a stationhouse of “personal risk of infection and pain.” ⁵⁷³ The appellant recognizes that his situation is not on all fours with the holding of Robinson or the dicta of Schmerber . He seeks rather to spell out a new set of circumstances wherein the taking of blood may be unreasonable. Section 16-205.1(d) of the Transportation Article provides that where an officer reasonably suspects drunken driving and where the suspect is incapable of refusing consent, the officer may direct a qualified medical person to withdraw blood for a chemical test “[i]f a chemical test for alcohol would not jeopardize the health or well-being of the individual.” It is the appellant’s argument that his health and well-being were jeopardized in this case.

He points out that he was in the hospital with nine broken ribs, a punctured lung, and a dislocated right shoulder. He points out that he had been given medication and was, in the judgment of his wife, incapable of giving valid consent to a blood test even though he was conscious and apparently coherent. Although the appellate argument cites evidence that the appellant was in shock and that his blood pressure was dropping, that evidence came only from the appellant’s wife, who is neither a physician nor a nurse. Even though the trooper’s direction to take the blood was to the nurse, in the momentary absence of the attending physician, we see nothing in these circumstances that offends either Schmerber or Robinson .

Indeed, the decision of State v. Werkheiser, 299 Md. 529 , 474 A.2d 898 (1984), goes strongly against the appellant’s argument here. In that case, the defendant had been transported from the accident scene to a hospital in Easton. He was being treated for a gash in his head. It was stipulated in that case that the defendant was “ ‘unconscious or otherwise incapable of refusing to take a chemical test.’ ” Id. at 582 , 474 A.2d 898 .

In that case, the trooper did not direct a qualified medical person to withdraw blood for a chemical test. The trial judge ruled that Md.Transp. Code Ann. § 16.205.1(d) is mandatory and that the police officer was under a legal obligation to order that the test be made. The Court of Appeals agreed with the trial court in ⁵⁷⁴ that regard and held that “this statute imposes a mandatory duty upon police officers.” Id. at 533, 474 A.2d 898 .

The officer in this case did what the statute and State v. Werkheiser indicate he was obligated to do. Under the circumstances, we cannot agree with the appellant that “the conduct of the trooper was repugnant to generally accepted standards of fair behavior, even police behavior.” The appellant’s case in this regard reduces itself to little more than innuendo. He does not claim to have been in a life-threatening situation; he simply makes the ad hominem argument that “so far as the trooper knew, this might well have been a life-threatening situation.” With no support in the evidence, the appellant goes on to insinuate, “The trooper apparently believed nevertheless that it was his duty to use any means in order to make (or fake?) a case against the appellant.” As the case law discussed earlier makes clear, Society imposes upon the trooper the obligation to move with all possible diligence against drunken drivers. The appellant’s final insinuation goes only to the credibility of the trooper and is, therefore, beyond our concern: “That he endeavored to prosecute at all in the context of this case casts suspicion upon all such reported timings and on the animus of the trooper.” The blood alcohol content of 0.24 per cent indicates that the trooper did precisely what Society expects him to do.

Allocation of Burden of Proof As To Possible Influence of Medication On Blood Alcohol Test Results The appellant’s second contention is one of first impression. It is conceded that the appellant consumed no alcoholic beverages between the time of the accident and the time his blood was withdrawn for a blood alcohol content analysis. His blood alcohol content was 0.24 per cent. It is the appellant’s claim that medication possibly administered to him by ambulance personnel or hospital personnel may have contained alcohol and may, therefore, have been the causative factor for the high blood alcohol content. ⁵⁷⁵ The appellant offered no evidence that any medication was administered that contained alcohol.

The State offered no evidence that