Briscoe v. State

ADKINS, Judge. In a four count information, appellant Joseph Austin Briscoe was charged with manslaughter by motor vehicle (Count 1), homicide by motor vehicle while intoxicated (Count 2), driving while intoxicated (Count 3), and driving while license revoked (Count 4). A jury in the Circuit Court for Charles County (Bowling, J., presiding) convicted Briscoe under counts 1, 3 and 4. According to the docket, it merged count 2 into count 1.

Judge Bowling sentenced Briscoe to confinement for five years on the count 1 conviction, to one year concurrent on the count 3 conviction, and to one year on the count 4 conviction, to be served consecutively to the count 3 sentence but concurrently with the count 1 sentence. The sole error alleged on appeal is that the trial judge should not have instructed the jury as to the statutory inferences of intoxication established by § 10-307 of the Courts and Judicial Proceedings Article. The State concedes that this instruction should not have been given, but argues that the error was harmless. We conclude that Briscoe’s argument on this point is more persuasive.

Therefore, we reverse the manslaughter (count 1) and driving while intoxicated (count 3) convictions. Sections 10-302 — 10-306 of the Courts Article provide for the administration of a chemical test of breath or blood to determine its alcoholic content. These sections also establish certain conditions under which these tests must be ⁴⁵ performed. There is no question that in this case all the conditions were not met. 1 Section 10-307 sets forth inferences as to intoxication or lack thereof, based on the alcoholic content of the blood analyzed by the tests.

The results of a test not performed under the §§ 10-302 — 10-306 rules may be admitted in evidence. State v. Moon, supra. But the statutory inferences of intoxication contained in § 10-307 are not available under those circumstances. See Fouche v. Masters, 47 Md.App. 11, 21 , 420 A.2d 1279 (1980).

In the case before us, there was evidence that Briscoe’s blood, tested as a result of standard medical procedures and not pursuant to §§ 10-302 — 10-306, had an alcohol content of .27. A doctor testified that a person with that much alcohol in his blood would be “pretty drunk.” There was other evidence tending to show Briscoe’s intoxication. Had this evidence and other evidence presented gone to the jury under normal instructions, Briscoe would have little to argue on appeal. That, however, did not occur.

In the face of a timely objection, the trial judge read to the jury § 10-307, including subsection (e) which provides If at the time of testing there was in the person’s blood 0.13 percent or more by weight of alcohol, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the defendant was intoxicated. This instruction, which the State concedes should not have been given, plainly told the jury that they could indulge in a prima facie inference that Briscoe was intoxicated. The statutory “prima facie evidence” language is, of ⁴⁶ course, addressed to the trial judge. It tells him, in effect, that if certain evidence has been introduced (after compliance with the statutory preconditions) there is a case sufficient to go to