Casper v. State

⁵⁷⁹ ALPERT, Judge. This appeal concerns evidence that must be presented to assure the accuracy of results from a breathalyzer 1 test offered in a prosecution for drunk driving. Facts Appellant, John E. Casper, Sr. (Casper), was the unfortunate recipient of a chemical breath test the night of September 13-14, 1984. His predicament began when Corporal Andrew Mays, of the Maryland State Police, responded to a call that a blue station-wagon was being driven erratically on southbound Route 91 near Finksburg.

Mays located the vehicle, followed it for a short time, and signaled the driver to pull off of the road. That driver was Casper. Standard field tests supported Mays’ suspicion that Casper was not completely sober. Mays arrested Casper and transported him to the Westminster barrack.

At the barrack, Sergeant James Huber, a certified breathalyzer operator, conducted a chemical breath test examination upon Casper. Results from that test indicated Casper’s blood contained .21% alcohol by weight. Casper was then processed, released and driven home by his wife. On June 24, 1986, Casper was tried by a jury (Judge H. Chester Goudy presiding) in the Circuit Court for Carroll County upon charges of driving a motor vehicle while intoxicated and failing to drive in a single lane.

At that trial, the State established Sergeant Huber’s qualifications to administer chemical breath examinations. Through Huber, the State then introduced a written statement, signed by Yale H. Caplan, a toxicologist with the Maryland Department of Post Mortem Examiners, certifying that the breathalyzer used to test Casper was “approved for chemical analysis to determine blood alcohol concentrations.” The ⁵⁸⁰ statement certified further that the (1) Breath Alcohol Simulator; (2) Certified Breathalyzer Solution; and (3) Ampule Gauge, as manufactured and supplied by the breathalyzer’s maker, were approved for use in conjunction with the machine. Caplan’s statement, dated May 17, 1984, expired by its terms December 14 of that year, three months after Casper’s test. Sergeant Huber was then permitted to describe the procedures used in administering Casper’s breathalyzer test, which description we now paraphrase: (1) The breathalyzer was turned on and brought to proper operating temperature; (2) Huber placed a “test ampule” and a “standard ampule” containing sulphuric acid, potassium dichromate, silver nitrate and distilled water into holders in the breathalyzer; (3) Huber purged the breathalyzer with an infusion of alcohol-free air and set gauges used to measure the alcohol content of air in the apparatus to “0”; (4) Casper then blew into the breathalyzer until he had emptied his lungs in a single breath; (5) A short time later, the breathalyzer indicated and recorded Casper's blood alcohol content; 2 and ⁵⁸¹ (6) Huber then conducted a “simulator check” in which he again purged the breathalyzer and tested a “simulator fluid” containing .10% alcohol by weight.

Over objections of counsel, the trial court then admitted Casper’s test results into evidence. The jury convicted Casper of driving while intoxicated. 3 Judge Goudy sentenced appellant to 30 days incarceration (suspended), placed him on 3 years probation and assessed court costs against him. Casper noted this appeal. The specific issues presented by the appellant are these: 1.

Whether the failure of the State to produce expert testimony as to the reliability of simulator fluid used to cheek the working condition of the breathalyzer violated appellant’s constitutional right to confront the witnesses against him. 2. Whether procedures used to assure the reliability of chemical compounds used in appellant’s breathalyzer examination were of such “questionable accuracy” as to preclude the admissibility of that examination. We shall address these issues in the reverse of the order in which they were presented. Chemical Breath Tests It is a violation of Maryland’s Transportation Article to drive any vehicle while intoxicated.

Md. Transp. Code Ann. § 21-902(a) (1984). In a prosecution for such a violation, the State may administer a chemical test of the accused’s breath for the purpose of determining the alcohol content of his blood. Md.Cts. & Jud.Proc.

Code Ann. § 10-302 (1986 Cum.Supp.). If results from the test indicate the driver’s blood contains .13% by weight alcohol, that fact is prima ⁵⁸² facie evidence that he was driving while intoxicated. Id. § 10-307(e) (1984). The evidentiary use of chemical tests for blood alcohol content is provided for in Courts and Judicial Proceedings Article, Sections 10-302 through 10-307 (1984).

Section 10-307(a) provides that a person’s blood alcohol content “shown in chemical analysis as provided in this subtitle is admissible in evidence____” (Emphasis added). The subtitle provides that a chemical breath test must be conducted within two hours after the driver is apprehended, § 10-303, and must be administered by a “qualified person with equipment approved by a toxicologist under the Postmortem Examiners Commission at the direction of a police officer,” § 10-304(b). “Qualified person” means: a person who has received training in the use of the equipment in a training program approved by the toxicologist under the Postmortem Examiners Commission and who is either a police officer, a police employee, or an employee of the office of the Chief Medical Examiner. § 10-304(a)(3). Thus, before results from a chemical breath test are admissible, the State must establish that the test was conducted within two hours of the driver’s apprehension by a “qualified person” using test equipment approved by the State toxicologist. See 68 Op.

Att’y Gen. 446, 456-57 (1983). To establish this last point, Section 10-304(e) specifically provides: [f]or the purpose of establishing that the test was administered with equipment approved by the toxicologist under the Postmortem Examiners Commission, a statement signed by the toxicologist certifying that the equipment used in the test has been approved by him shall be prima facie evidence of the approval, and the statement is admissible in evidence without the necessity of the toxicologist personally appearing in court. Those, then, are the three elements of the foundation that must be laid before chemical breath test results are admissible. ⁵⁸³ Test results produced by a qualified person using certified equipment in a timely manner are prima facie reliable. See Moon v. State, 300 Md. 354, 370 , 478 A.2d 695 (1984).

The assurance of reliability provided by this evidence is particularly important because of the dispositive nature of blood alcohol content evidence. An alcohol level of .13% or more constitutes prima facie proof of intoxication. 4 Md.Cts. & Jud.Proc. Code Ann. § 10-307(e) (1984). Factfinders are likely to attach great weight to the objective, scientific assessment of intoxication presented by this evidence.

A cautious insistence that the State produce proof required by the statutes ensures that this weight is not misplaced. 1. Ampules Casper argues that his unfavorable breath test results should have been excluded because “the ampules used were of questionable accuracy.” 5 The premises put forth by Casper to support his challenge to the ampules’ accuracy are these: the ampules were taken from a lot of 2,500 ampules of which only 25 were examined for chemical accuracy; and police received the ampules nine months before Casper’s chemical breath test. Casper contends that the particular ampules used in his test should have been examined and that the State should have demonstrated that the ampules remained effective after nine months. ⁵⁸⁴ We must first determine whether the State has any obligation to demonstrate the chemical accuracy of ampules. If it does, we must then resolve what form that proof must take.

Chemical breath test results are inadmissible absent a showing that the test was administered with equipment approved by the State toxicologist. Md.Cts. & Jud.Proc. Code Ann. § 10-304(b) (1984). The term “equipment” is not defined in statutes controlling the evidentiary use of test results.

Thus, we visit the first rule of statutory construction and attribute to “equipment” its ordinary and generally understood meaning. See In re Criminal Investigation No. 1-162, 307 Md. 674, 685 , 516 A.2d 976 (1986). Webster reads equipment to mean implements used in an operation or activity. 6 Ampules play a central role in the activity of determining a defendant’s blood alcohol content. See, supra, note 2.

There can be no breathalyzer test without an ampule. Improperly constituted ampules produce inaccurate test results. See Watts, Some Observations on Police Administered Tests for Intoxication, 45 N.C.L.Rev. 34 n. 92 (1966); Note, Defendant’s Right to Independent Analysis of the Breathalyzer Ampoule: The Probable Virginia Response, 21 Wm. & Mary L.Rev. 219, 227-228 (1979). Were the toxicologist’s approval not to encompass this very central implement of a breath test, the assurance of reliability provided by that approval would be shallow indeed.

We agree with the many states that include ampules among the equipment that must be certified as a condition to admissibility of breath test results. See, e.g., State v. Ghylin, 222 N.W.2d 864, 869 (N.D.1974); State, City of St. Louis Park ⁵⁸⁵ v. Quinn, 289 Minn. 184 , 182 N.W.2d 843, 845 (1971); State v. Baker, 56 Wash.2d 846 , 355 P.2d 806, 809-810 (1960). We move now to determine whether methods used in this case to assure the accuracy of Casper’s ampules were sufficient. In the case at bar Sergeant Huber testified that Casper’s ampules were taken from lot 92 which, he indicated, contained about 1,200 ampules.

The State toxicologist’s certification, introduced through Huber, stated: The Certified Breathalyzer Solution as distributed by Smith and Wesson and certified by ... Galbraith Laboratories, Inc. is approved for use in conjunction with the above Breathalyzer. 7 Galbraith’s “Certification of Analysis,” also produced and admitted into evidence, indicated that a chemical analysis conducted on 25 ampules from lot 92 produced results well within the manufacturer’s tolerance range. The certificate, signed by a Galbraith representative and dated December 2, 1983, represented: The above report indicated that this batch of ampuls complies within established tolerances for Breathalyzer solution as specified by the manufacture, for use in all Breathalyzers. Thus, the State toxicologist relied on Galbraith’s random testing procedure in approving this equipment.

Random testing of ampules is widely accepted as reliable prima facie proof that the chemical compound of any one ampule in a lot is the correct kind in proper proportion. See, e.g., Ghylin, supra, 222 N.W.2d at 869 ; Baker, supra, 355 P.2d at 811 ; State v. DeVito, 125 N.J.Super. 478 , 311 A.2d 753, 754 (1973). Therefore, we hold that the State toxicologist’s approval of ampules certified by an independent laboratory using random testing meets the requirements of section ⁵⁸⁶ 10-304(b) and constitutes prima facie evidence that any ampule in the lot is chemically accurate. 8 On the basis of this holding, we reject Casper’s assertion that the age of his ampules made his test results unreliable and, therefore, inadmissible. Proof of random testing provides sufficient indicia of an ampule’s chemical integrity.

Coupled with the evidence that his test was performed by a qualified person in a timely manner with approved equipment, Casper’s results were prima facie reliable. Casper was free to challenge that reliability with evidence tending to show that the ampules had changed since being certified. Md.Cts. & Jud.Proc. Code Ann. § 10-304(f) (1984).

The fact that his ampules were 9 months old, without more, however, went to the weight, not to the admissibility of Casper’s test results. Consequently, the State was not required to offer further proof of the chemical accuracy of these ampules. See State v. Ghylin, 248 N.W.2d 825, 831-832 (N.D.1976). 2. Simulator Fluid Sergeant Huber testified that immediately after determining Casper’s blood alcohol content, he ran a “simulator check” on the breathalyzer “to make sure it was operating properly.” Huber explained that the check is conducted with a “known solution” of .10% alcohol.

Huber indicated that he did not mix the simulator fluid. That job was performed by Sergeant Mastrino who, though available to testify, was not called by either party. On the basis of the resulting reading of “.10” Sgt. Huber concluded, “the breathalyzer instrument that I was using on [the night of appellant’s arrest] was functioning properly.” ⁵⁸⁷ Casper argues that Sgt.

Huber’s conclusion was based on the hearsay representation of Sgt. Mastrino that the simulator fluid contained .10% alcohol. 9 Relying on Moon v. State, 300 Md. 354 , 478 A.2d 695 , cert. denied, 469 U.S. 1207 , 105 S.Ct. 1170 , 84 L.Ed.2d 320 (1985), Casper contends that his constitutionally protected right of confrontation was violated when he was denied the opportunity to cross-examine Mastrino as to simulator checks and the mixing of the fluid used in his test. Scientific and medical experts are frequently allowed to express an opinion based, in part, on objective data provided by others. See Watts v. State, 223 Md. 268, 271-272 , 164 A.2d 334 (1960); Swain v. State, 50 Md.App. 29, 45-46 , 435 A.2d 805 (1981).

In Fitzwater v. State, 57 Md.App. 274 , 469 A.2d 909 (1984), we held that a trial court had not abused its discretion in