Davis v. State

Murphy, C.J., delivered the opinion of the Court. Appellant was charged by summons with having on ³²⁸ January 28, 1968, driven his motor vehicle under the influence of intoxicating liquor in violation of Maryland Code, Article 66%, Section 206. He was tried and convicted in the Magistrate’s Court for Queen Anne’s County and from that judgment he appealed to the Circuit Court. The case was tried by that court without a jury on November 6, 1968. .During .the course of the arresting officer’s testimony, he was asked by the trial judge whether appellant “wanted to take a breathalizer test or if he would take a breathalizer test.” Appellant vigorously objected to the court’s question.

The objection was promptly overruled and the arresting officer stated that appellant had refused to take the test. Appellant was convicted of the charge and thereafter petitioned for a writ of certiorari pursuant to Code, Article 5, Section 21. We granted the petition, limited to the question whether, in view of the provisions of Section 100 of Article 35 of the Code, the trial judge erred when he inquired, sua sponte, whether appellant had refused to take the breathalizer test. The statute in question makes provision for the administration of chemical tests for alcohol in the blood of individuals charged with driving under the influence of intoxicating liquor. 1 Subsection (c) thereof, in effect at the time of appellant’s trial, provided: “No person shall be compelled to submit himself or any part of his body or bodily substance for the purpose of a chemical analysis provided for in this section and evidence of chemical analysis shall not be deemed admissible if obtained contrary to the provisions of this subsection; and no inference or presumption concerning either his guilt or innocence arises by reason of his refusal to submit as hereinbefore set forth, nor shall the fact of his refusal to so ³²⁹ submit be admissible into evidence at his trial.” (Emphasis supplied.) 2 In view of the plain provisions of the statute, it was obvious error for the trial judge to admit the challenged evidence.

See People v. Reeder, 121 N.W.2d 840 (Mich.) ; People v. Stratton, 143 N.Y.S.2d 362 , aff'd. 133 N.E.2d 516 (N.Y.) ; State v. Gillis, 199 A. 2d 192 (Me.). The State urges, however, that the error was harmless, first because appellant, by his own testimony on direct examination, acknowledged the fact that he refused to take the breathalizer test; and, second, because there was abundant evidence apart from that now challenged to show that appellant had been driving under the influence of intoxicating liquor. We agree with the State