Dejarnette v. State

Alexander Dejarnette v. State of Maryland, No. 41, September Term, 2021 EVIDENTIARY TEST OF BREATH FOR ALCOHOL – CODE OF MARYLAND REGULATIONS 10.35.02.08G – TWENTY-MINUTE OBSERVATION PERIOD – COMPLIANCE – ADMISSIBILITY – Court of Appeals held that plain language of relevant statutes was clear and that statutes do not provide that breath test results are inadmissible as result of noncompliance with twenty-minute observation period set forth in Code of Maryland Regulations (“COMAR”) 10.35.02.08G. COMAR 10.35.02.08G does not contain exclusionary provision for alleged noncompliance with observation period. Court of Appeals held that alleged compliance or noncompliance with twenty- minute observation period goes to weight to be given to breath test results, not to admissibility of results. Court of Appeals concluded that record in case supported factual finding that officers complied with twenty-minute observation period before administration of breath test.

And, Court of Appeals determined that trial court made findings on record that officers complied with twenty-minute observation period set forth in COMAR 10.35.02.08G. Circuit Court for Somerset County Case No. C-19-CR-19-000156 Argued: February 8, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 41 September Term, 2021 ______________________________________ ALEXANDER DEJARNETTE v. STATE OF MARYLAND ______________________________________ Getty, C.J. *McDonald Watts Hotten Booth Biran Harrell, Jr., Glenn T. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: March 25, 2022 *McDonald, J., now a Senior Judge, participated in the hearing and conference of this case while Pursuant to Maryland Uniform Electronic Legal Materials Act an active member of this Court. After being (§§ 10-1601 et seq. of the State Government Article) this document is authentic. recalled pursuant to Md. Const., Art. IV, § 3A, 2022-03-25 he also participated in the decision and adoption 10:18-04:00 of this opinion.

Suzanne C. Johnson, Clerk In Maryland, when a law enforcement officer has reason to believe that the driver of a motor vehicle is under the influence of alcohol, the officer may ask the driver to take a breath test. Under Md. Code Ann., Transp. (1977, 2012 Repl. Vol., 2018 Supp.) (“TR”) § 16-205.1, sometimes called “the implied consent, administrative per se law[,]” a driver is deemed to have consented to take a breath test to determine alcohol concentration if stopped by a law enforcement officer with reasonable grounds to believe that the person has been driving under the influence of alcohol.

Motor Vehicle Admin. v. Deering, 438 Md. 611, 612, 615 , 92 A.3d 495, 496, 498 (2014) (internal quotation marks omitted). There are regulations governing the procedures for administering a breath test for alcohol. See Code of Maryland Regulations (“COMAR”) 10.35.02.08.1 Among other things, COMAR 10.35.02.08G provides that an individual who is to be given a breath test must be observed for at least twenty minutes before the sample is taken. The purpose of the observation period is to help ensure that the individual does not engage in behavior that could potentially skew the results of the test, either higher or lower than they should be.

In this case, the State, Respondent, charged Alexander Dejarnette, Petitioner, with four counts related to driving under the influence of alcohol—namely, negligent driving, driving under the influence of alcohol, driving under the influence of alcohol per se, and driving while impaired. Prior to trial in the Circuit Court for Somerset County, Dejarnette filed a motion in limine to exclude the results of a breath test, arguing that the twenty- 1 COMAR 10.35.02.08 became effective on October 4, 2010. See COMAR 10.35.02.9999. It is part of the “Postmortem Examiners Commission” subtitle of the Maryland Department of Health Title, located at Title 10 of COMAR. minute observation period set forth in COMAR 10.35.02.08G had not been complied with.

At the end of a motions hearing, the circuit court denied the motion. A jury acquitted Dejarnette of negligent driving and driving under the influence of alcohol, but convicted him of driving under the influence of alcohol per se and driving while impaired by alcohol. The circuit court sentenced Dejarnette to one year of imprisonment, with all but ten days suspended, and one year of supervised probation, and ordered him to pay a $250 fine and $145 in court costs. Dejarnette appealed, contending that the circuit court erred in admitting the results of the breath test.

The Court of Special Appeals held that the circuit court did not err and affirmed the circuit court’s judgment. See Dejarnette v. State, 251 Md. App. 467 , 469, 254 A.3d 524 , 525 (2021). Dejarnette filed a petition for a writ of certiorari, which we granted. See Dejarnette v. State, 476 Md. 264 , 261 A.3d 240 (2021).

In this case, we consider whether compliance with the twenty-minute observation period set forth in COMAR 10.35.02.08G is required for the results of a breath test to be admissible or whether alleged noncompliance with the observation period goes to the weight to be afforded the evidence by the trier of fact. We also consider whether the record in this case supports a finding that the officers complied with the observation period and whether the circuit court failed to make such a finding. We hold that the plain language of the relevant statutes is clear and that the statutes do not provide that noncompliance with the twenty-minute observation period set forth in COMAR 10.35.02.08G results in the inadmissibility of evidence of breath test results. The COMAR regulation itself does not contain an exclusionary provision for alleged noncompliance with the observation period.

We hold that the alleged compliance or -2- noncompliance with the twenty-minute observation period goes to the weight to be given to breath test results, i.e., the weight of the evidence, not the admissibility. We also conclude that, in this case, the record supports a finding that the officers complied with the twenty-minute observation period. In addition, we determine that the circuit court made findings on the record that the officers complied with the twenty-minute observation period set forth in COMAR 10.35.02.08G. BACKGROUND In the early morning of April 6, 2019, Maryland State Police Trooper Derek Brown, who was on patrol, observed a vehicle move to the shoulder without using a signal and then jerk back into the lane in which it had been traveling.

Trooper Brown saw the same vehicle again move completely onto the shoulder of the road and then jerk back into the lane in front of his car, which caused him to brake suddenly. At 1:59 a.m., Trooper Brown stopped the vehicle, which was being driven by Dejarnette. Immediately upon contact with Dejarnette, Trooper Brown smelled the odor of alcohol emanating from the vehicle and noticed that Dejarnette’s eyes were bloodshot and glassy. Trooper Brown advised Dejarnette of the reason for the stop and asked him to step out of the vehicle to perform field sobriety tests.

Trooper Brown smelled alcohol on Dejarnette’s breath after he exited the vehicle. Dejarnette admitted to having had a couple of drinks hours earlier. Trooper Brown conducted field sobriety tests and determined that Dejarnette exhibited numerous signs of being under the influence of alcohol. At 2:12 a.m., Trooper Brown arrested Dejarnette and transported him to Maryland State Police Barrack X in Princess Anne.

Trooper Brown read the DR-15 Advice of Rights -3- form2 to Dejarnette and at approximately 2:37 a.m., Dejarnette agreed to submit to an alcohol concentration test, i.e., a breath test. Another officer, Sergeant George Todd, administered the breath test. Dejarnette blew into the breathalyzer twice, at 2:43 a.m. and 2:45 a.m., forty-four and forty-six minutes, respectively, after Trooper Brown stopped his vehicle and thirty-one and thirty-three minutes, respectively, after he was arrested. Both times, the breath test detected an alcohol concentration of .094.

Trooper Brown and Sergeant Todd signed and completed a “State of Maryland Notification to Defendant of Result of Test for Alcohol Concentration” form, which stated that Dejarnette was arrested at 2:12 a.m. on April 6, 2019, that the breath specimen was collected at 2:43 a.m. that morning, and that the breath specimen was found to contain an alcohol concentration of .09 grams of alcohol per 210 liters of breath.3 Motion in Limine and Motions Hearing Prior to trial, Dejarnette filed a motion in limine, seeking to exclude the results of the breath test, arguing that the officers did not comply with COMAR 10.35.02.08G, which requires a twenty-minute period of pre-test observation. Dejarnette argued that the failure to follow the requirements of the regulation called the validity of the breath test results into 2 The DR-15 Advice of Rights form is a form created by the Motor Vehicle Administration that officers use to advise detained drivers of options under the implied consent, administrative per se law and of possible administrative sanctions and consequences for the refusal to take a test or for test results that indicate certain levels of alcohol concentration. See Motor Vehicle Admin. v. Krafft, 452 Md. 589, 594 , 158 A.3d 539, 542 (2017). 3 Under Md. Code Ann., Cts. & Jud. Proc.

(1974, 2013 Repl. Vol., 2018 Supp.) § 10-307(g), a person with an alcohol concentration of .08 and above, as determined by a blood or breath test, “shall be considered under the influence of alcohol per se[.]” -4- question and that the admission of the breath test results into evidence would violate due process. On December 18, 2019, the circuit court held a hearing on the motion. The State called two witnesses, Trooper Brown, who conducted the traffic stop, and Sergeant Todd, who conducted the breath test.

Trooper Brown testified that on April 6, 2019, he was working the night shift and at 1:59 a.m., he conducted a traffic stop of a vehicle that Dejarnette was driving. At 2:12 a.m., Trooper Brown arrested Dejarnette for suspected driving under the influence of alcohol. After the arrest, Trooper Brown searched Dejarnette’s mouth and pockets. Trooper Brown cuffed Dejarnette’s hands behind his back and placed him in the front passenger seat of the police car.

Trooper Brown testified that he and Dejarnette arrived at the barrack at 2:21 a.m. The two were met by Sergeant Todd, the duty officer at the barrack. Trooper Brown conducted another search of Dejarnette in Sergeant Todd’s presence in the hallway of the barrack. Trooper Brown did not find anything in Dejarnette’s mouth, and Trooper Brown testified that he would have placed anything found in Dejarnette’s pockets in a bag.

Trooper Brown then escorted Dejarnette to a processing room down the hall. Trooper Brown described the processing room as a small room, approximately eight or ten feet by twelve or fourteen feet, with a desk and two chairs. Trooper Brown testified that, between 2:21 and 2:37 a.m., he and Dejarnette were together for the entire time. Dejarnette was not handcuffed while sitting in the processing room.

Trooper Brown read the DR-15 Advice of Rights form to Dejarnette, while Sergeant Todd was in and out of the processing room. At approximately 2:37 a.m., Dejarnette -5- agreed to submit to an alcohol concentration test. The breath test was given to Dejarnette by Sergeant Todd, in Trooper Brown’s presence. The first result was at 2:43 a.m. and the second result was at 2:45 a.m.

Trooper Brown testified that during the nine minutes between arresting Dejarnette and transporting him to the barrack, from 2:12 a.m. to 2:21 a.m., and while sitting “right next to” Dejarnette in the processing room at the barrack, Dejarnette did not have anything to eat or drink, did not put a mint in his mouth, and did not smoke, and that he did not hear or smell Dejarnette belch. Trooper Brown testified that he did not see Dejarnette make any hand movements while he was seated uncuffed in the processing room. Sergeant Todd testified that on April 6, 2019, he was the duty officer at the barrack and performed the breath test with the intoximeter. Sergeant Todd testified that Trooper Brown brought Dejarnette into the barrack through the back door, where he met them.

Sergeant Todd asked Dejarnette whether he had anything in his mouth and made Dejarnette open his mouth and stick out his tongue. Sergeant Todd looked in Dejarnette’s mouth and watched as Trooper Brown searched Dejarnette. According to Sergeant Todd, he was in and out of the processing room once Dejarnette was placed in the room and was being read the DR-15 Advice of Rights form in the room. Sergeant Todd testified that when he was in the processing room, he did not recall observing any problems with Dejarnette, such as vomit on him.

Sergeant Todd testified that Dejarnette “didn’t have anything to drink the whole time [he] was with him or have anything in his mouth.” Sergeant Todd explained that, “[e]ach time we do the breath test, I do the breath test twice, before he blows in the intoximeter, I have him open his mouth just so I can see if there’s anything in his mouth.” -6- Sergeant Todd testified that, if an individual belches or vomits and is given a breath test within twenty minutes, “it would show mouth alcohol and would void the test.” Sergeant Todd testified that Dejarnette’s breath test produced two results, at 2:43 a.m. and 2:45 a.m., and that both results were .094. Dejarnette did not testify or call any witnesses. Dejarnette’s counsel argued that “filling out paperwork” and reading the DR-15 Advice of Rights form should not count as “observation time” because the officer is not looking at the individual. The circuit court responded: “Well, wouldn’t you agree . . . the officer at that time was from you to your client, and, certainly, he would have smelled vomit, smelled a burp, would have heard a burp, would have heard candy wrappers or something of that ilk and would have looked up?” The prosecutor argued: I think we’re okay because we know he didn’t have anything to eat or drink, we know he didn’t have any foreign substance in the mouth, and we know that he didn’t smoke, and that is what COMAR requires for the breath test.

It doesn’t say anything about belching. It doesn’t say anything about burping. In addition, the prosecutor argued that Dejarnette could raise issues concerning the observation period allegedly being lacking to the jury, but that the test should not be barred from admission into evidence. The circuit court stated that there was no “evidence that anyone observed [Dejarnette] belch or vomit or there was vomit on his clothes or that he had a stick of Trident that they missed[.]” The circuit court found that Trooper Brown was able to observe Dejarnette during the drive to the barrack and while advising Dejarnette, stating: -7- [F]ollowing what COMAR intends, is that it’s a 20-minute period before the test starts.

That’s clear. And, quite frankly, when you’re arresting somebody, and you’re putting them in the car, and you’re driving, and you’re taking them out of the car, and you search them again, and you are taking them down to the room, you know, presumably, they’re in close proximity to you, they’re not away from you, and you can observe whether they’ve belched or vomited, the same as you can in a room. But, quite frankly, I think best practices is that, you’re in a room with them, as the trooper said, from as close as you were today with your client, and you’re able to be close enough to smell, to touch, if necessary, if you suspect there’s something in their mouth, to see, all of your tactile senses are in such a close range, that you can make those observations. The circuit court determined: Trooper Brown, no dispute whatsoever, was with him the entire time between 2:21 and 2:43.

Sergeant Todd was in there. And he’s as honest as the day is long, and he said, I can’t remember whether I was on the desk more than I was in the room. . . . But we do not have just one person observing during the 22 minutes, we’ve got two people, a combination of the two people, that are making observations. And neither one observed a belch, a vomit, a stick of gum, a cigarette, anything to the contrary that would invalidate the test, at least for the testimony I’ve heard under 10.35.02.08G.

The circuit court concluded that the requirements of the regulation went to weight rather than the admissibility of the breath test, and referred to the pattern jury instruction that allows the jury to “disregard” the test result if it believes that the test was not administered properly, stating: Because, obviously, the jury instruction for the test is that they can disregard the test if they believe that it was not administered properly. And I think that’s why it’s in the jury instruction specifically about weight. Because the jury can say, you know, no offense to Trooper Brown and [Sergeant] Todd, but I just don’t think they did it right. And, therefore, I’m not going to give the test any weight under the jury instruction.

The circuit court denied the motion in limine. -8- Trial A jury trial occurred on January 7, 2020. At trial, Dejarnette’s counsel raised the issue of the observation time and the accuracy of the breath test results on several occasions. During opening statements, Dejarnette’s counsel stated: “I’m going to ask you to pay careful attention to the testimony you’re going to hear with regards to the procedures and policies that need to be followed in order to ensure that that test result is accurate.” When Trooper Brown testified that the DR-15 Advice of Rights form advises an individual about “[t]he periods of suspension on his license and whether or not he wants to take a breath test[,]” Dejarnette’s counsel objected on the “[g]rounds previously registered[.]” The circuit court overruled the objection and granted the defense a continuing objection. During Sergeant Todd’s testimony, the State moved to admit into evidence the intoximeter test strip from the breath test administered to Dejarnette and the State of Maryland Notification to Defendant of Result of Test for Alcohol Concentration form, which Sergeant Todd filled out with the test results.

Dejarnette’s counsel objected, and the circuit court overruled the objection and admitted the exhibits into evidence. In instructing the jury, the circuit court gave the pattern instruction on driving under the influence of alcohol per se, see MPJI-Cr 4:10.3 (Driving Under the Influence of Alcohol Per Se), which included the following: “When deciding what weight, if any, to give to the test result, you may consider all of the evidence in the case, including evidence that tends to show the test result was inaccurate or unreliable.”4 4 In closing argument, Dejarnette’s counsel argued that the twenty-minute -9- Opinion of the Court of Special Appeals After being convicted, Dejarnette appealed. On July 6, 2021, the Court of Special Appeals affirmed the circuit court’s judgment. See Dejarnette, 251 Md. App. at 469, 254 A.3d at 525.

The Court of Special Appeals held that the relevant statutes are “unambiguous” and do not “require compliance with the COMAR regulation twenty- minute observation period as a condition to the admissibility of evidence[.]” Id. at 471, 254 A.3d at 526. The Court of Special Appeals stated that, “[t]he COMAR regulation does not provide requirements for how an individual is to be observed, nor does it define ‘observe.’” Id. at 473, 254 A.3d at 527. The Court of Special Appeals concluded that there is no exclusionary rule for a violation of a regulation, i.e., “that the violation of a State regulation does not trigger the exclusionary rule.” Id. at 475, 254 A.3d at 528 (cleaned up). The Court of Special Appeals held that compliance with the twenty-minute observation period goes to the weight of the breath test evidence, not admissibility.

See id. at 480, 254 A.3d at 532. The Court of Special Appeals determined that compliance with the twenty-minute observation period requirement does not mean that an officer must look continuously at a suspected drunk driver for twenty minutes and instead an officer “may use numerous senses to observe an individual to ensure they do not eat, drink, smoke, or put something in their mouth.” Id. at 478, 254 A.3d at 530-31. The Court of Special Appeals concluded that Dejarnette had failed to preserve the issue of whether the circuit court failed to find that observation time was “important[,]” and he urged the jury to acquit because of, among other reasons, “the noncompliance with the procedures for the breathalyzer[.]” - 10 - the officers complied with the COMAR regulations by failing to object or raise the issue in the circuit court. Nonetheless, the Court of Special Appeals determined that the circuit court made explicit findings on the record that the officers adhered to the twenty-minute observation period.

See id. at 479-80, 254 A.3d at 531. The Court of Special Appeals noted that “Dejarnette failed to offer any competent evidence that he drank, smoked, ate, or regurgitated during the observation period[,]” and explained that “[s]peculation that something could have occurred that would compromise the test is not compelling evidence that the test was unreliable.” Id. at 481, 254 A.3d at 532. Petition for a Writ of Certiorari On August 20, 2021, Dejarnette petitioned for a writ of certiorari, raising the following three issues: 1. Where Petitioner challenged the admissibility of a breath test on the grounds that the police failed to sufficiently observe him for the requisite period preceding the test, does the failure to comply with the observation period go to the admissibility of the breath test results rather than their weight? a.

Does the statutory and regulatory scheme necessitate excluding breath tests where the police fail to comply with the observation period? b. Do principles of evidentiary law—and overwhelming out-of-state authority—necessitate excluding breath tests where the police fail to comply with the observation period? 2. Did the Court of Special Appeals err in holding that the officers’ testimony supported a finding of compliance with the observation period? 3. Did the Court of Special Appeals err in holding that the argument—that the trial court failed to make any finding regarding compliance—was not preserved and also failed on the merits? - 11 - On October 12, 2021, we granted the petition.

See Dejarnette, 476 Md. 264 , 261 A.3d 240 . STANDARD OF REVIEW In Brooks v. State, 439 Md. 698, 708 , 98 A.3d 236, 241-42 (2014), we explained that the standard of review of an evidentiary ruling depends on whether the trial court’s “ruling was based on a pure question of law, on a finding of fact, or on an evaluation of the admissibility of relevant evidence.” “Questions of law are reviewed without according the trial [court] any special deference; findings of fact are assessed under a ‘clearly erroneous’ standard; and an assessment of the admissibility of relevant evidence is reviewed under an abuse of discretion standard.” Id. at 708 , 98 A.3d at 242 (citations omitted). “The interpretation of a statute is a question of law that this Court reviews de novo.” Johnson v. State, 467 Md. 362, 371 , 225 A.3d 44, 49 (2020). We assume that the General Assembly’s “intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly.” Id. at 371 , 225 A.3d at 49-50 (cleaned up). “If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Rogers v. State, 468 Md. 1, 14 , 226 A.3d 261, 269 (2020), cert. denied, ___ U.S. ___, 141 S. Ct. 1052 (2021) (citation omitted). “In addition, we neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Id. at 14, 226 A.3d at 269 (citation omitted). - 12 - DISCUSSION5 I. The Parties’ Contentions Dejarnette contends that, for the results of a breath test to be admissible, the State must establish that law enforcement officers complied with the twenty-minute observation period set forth in COMAR 10.35.02.08G. Dejarnette argues that the failure to comply with the twenty-minute observation period constitutes “compelling indicia of unreliability” of the results of a breath test and that lack of compliance with the observation period goes to the admissibility of the results.

Dejarnette asserts that, under Maryland Rule 5-403 and out-of-State authority, breath test results must be excluded where there is a failure to comply with the observation period. The State responds that the Court of Special Appeals was correct in holding that compliance with COMAR 10.35.02.08G’s requirement of a twenty-minute observation period before administration of a breath test goes to the weight to be afforded to the results of a test, not admissibility. The State points out that, although the relevant statutes condition admissibility on compliance with statutory requirements, the statutes neither expressly nor impliedly require exclusion of breath test results for failure to comply with COMAR 10.35.02.08G. The State advises that COMAR 10.25.02.08G does not contain an exclusionary rule and that there is no exclusionary rule for violation of a regulation.

The State maintains that a majority of other jurisdictions treat the issue as one of weight, not 5 We consolidate into one issue the second and third questions raised by Dejarnette. - 13 - admissibility, and that the cases cited by Dejarnette have little or no analysis or are based on statutory schemes different from Maryland’s and thus are not persuasive. Analysis We begin by examining the relevant statutes. Dejarnette was charged with violations of TR §§ 21-901.1(b) (negligent driving), 21-902(a)(1)(i) (driving under the influence of alcohol), 21-902(a)(1)(ii) (driving under the influence of alcohol per se), and 21-902(b)(1)(i) (driving while impaired by alcohol), and convicted of the latter two offenses. Subtitle 3 of Title 10 of the Courts and Judicial Proceedings Article of the Code of Maryland governs the use of breath and blood tests to determine alcohol concentration, drugs, or controlled substances for certain offenses.

Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl. Vol., 2018 Supp.) (“CJ”) § 10-302 provides that, “[i]n a prosecution for a violation of law concerning a person who is driving . . . a vehicle in violation of . . . § 21- 902 of the Transportation Article . . . , a test of the person’s breath or blood may be administered for the purpose of determining alcohol concentration[.]” CJ § 10-303(a)(2) requires that, “[f]or the purpose of a test for determining alcohol concentration, the specimen of breath or blood shall be taken within 2 hours after the person accused is apprehended.”6 CJ § 10-304(b)(1) requires that “[t]he test of breath shall be administered by a qualified person with equipment approved by the toxicologist under the Postmortem Examiners Commission at the direction of a police officer.” As a precaution, 6 In cases of determining the drug or controlled dangerous substance content of a person’s blood, CJ § 10-303(b)(2) requires that “the specimen of blood shall be taken within 4 hours after the person accused is apprehended.” - 14 - “[t]he officer arresting the individual may not administer the test of breath.” CJ § 10- 304(b)(2).

A “qualified person” is an individual 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, an employee of the office of the Chief Medical Examiner, or a person authorized by the toxicologist under the Postmortem Examiners Commission. CJ § 10-304(a)(3). Under CJ § 10-306(a)(1)(i), where an individual is charged with violating TR § 21- 902, a copy of alcohol breath test results “signed by the technician or analyst who performed the test[] is admissible as substantive evidence without the presence or testimony of the technician or analyst who performed the test.” To be admissible, though, the breath test report must “[i]dentify the technician or analyst as a ‘qualified person,’ as defined in [CJ] § 10-304[,]” “[s]tate that the test was performed with equipment approved by the toxicologist under the Postmortem Examiners Commission at the direction of a police officer[,]” and “[s]tate that the result of the test is as stated in the report.” CJ § 10- 306(a)(2). Significantly, CJ § 10-309(a)(1)(ii) provides that “[e]vidence of a test or analysis provided for in this subtitle is not admissible in a prosecution for a violation of [TR] § 21-902 . . . if obtained contrary to the provisions of this subtitle.” COMAR 10.35.02.08G7—at issue in this case—sets forth the method for administering a breath test and provides in its entirety: 7 The Secretary of Health and Mental Hygiene adopted COMAR 10.35.02.01 through 10.35.02.09.

See 37:20 Maryland Register 1394 (Sept. 24, 2010), available at https://msa.maryland.gov/megafile/msa/speccol/sc5300/sc5339/000113/013000/013104/u nrestricted/20100980e.pdf [https://perma.cc/R67L-2WE7]. - 15 - (1) For at least 20 minutes before a breath sample is taken, an individual may not: (a) Eat or drink; (b) Have any foreign substance in the individual’s mouth or respiratory tract; or (c) Smoke. (2) The individual shall be observed and mouth checked. (3) Observation of the individual shall be performed by: (a) A breath test operator; (b) Other uniformed or civilian law enforcement personnel; or (c) Any combination of a breath test operator and uniformed or civilian law enforcement personnel. (4) The testing procedure shall begin with a blank test to ensure that no alcohol is present in the breath path of the breath testing instrument.

(5) A validation test shall be run before the individual begins the testing process. (6) If the breath testing instrument fails to obtain a reading plus or minus 10 percent of the stated alcohol concentration on the validation test, then the subject test shall be discontinued. (7) The individual shall be instructed to take a breath and then deliver a breath sample into the instrument by blowing into the mouthpiece and breath tube until instructed to stop. (8) After each subject breath sample, a blank check shall be performed to ensure that no alcohol is present in the breath path.

(9) Two breath samples shall be collected and analyzed by the breath testing instrument. (10) A third breath sample shall be collected only if the absolute difference between the results of the first and second samples exceeds 0.020 g/210L. - 16 - (11) A validation test of known alcohol concentration shall be run after the individual has given the required number of breath samples. (12) If the instrument fails to obtain a reading plus or minus 10 percent of the stated concentration on the validation test, then the subject test is invalid. (13) The lower of the two or lowest of the three results of the subject test shall be truncated to the second decimal place and reported as the result of the breath test.

COMAR 10.35.02.08G does not define “observation” or set forth parameters or requirements for how an individual is to be observed for the twenty minutes before administration of a breath test. Nor does COMAR 10.35.02.08G provide that a breath test is invalid if the observation period is not complied with. From the plain language of the statutes in Subtitle 3 of Title 10 of the Courts and Judicial Proceedings Article, it is clear that CJ § 10-309(a)(1)(ii) operates as a statutory exclusionary rule, pursuant to which evidence of a breath test or analysis in a prosecution for violation of TR § 21-902 must be excluded where such evidence is “obtained contrary to the provisions of th[e] subtitle.” Stated differently, breath test results are not admissible if obtained contrary to the provisions in Subtitle 3 of Title 10 of the Courts and Judicial Proceedings Article. As such, for evidence of a breath test to be admissible, among other things, the specimen of breath must be taken within two hours after the person accused is apprehended, see CJ § 10-303(a)(2), the breath test must be administered by a qualified person, see CJ § 10-304(b)(1), and the report of the breath test results must include three specified pieces of information, including that the result of the test is as stated in the report, see CJ § 10-306(a)(2).

If any of these provisions, or any other provision of Subtitle 3, is - 17 - not complied with, then breath test results are not admissible pursuant to CJ § 10- 309(a)(1)(ii). Exclusion of breath test results is tied to compliance with statutory requirements, not regulatory requirements. The statutes, and in particular CJ § 10-309(a)(1)(ii), the provision which sets forth the exclusionary rule, make no reference whatsoever to COMAR regulations or any compliance with them. Nothing in the statutory scheme indicates that the breath test results are not admissible for lack of strict compliance with the regulations.

CJ § 10-309(a)(1)(ii) refers only to compliance with “the provisions of this subtitle[,]” not compliance with regulations or anything else that may be required outside of the provisions of the subtitle. CJ § 10-309(a)(1)(ii) does not reference compliance with the COMAR regulations generally or with the twenty-minute observation time set forth in COMAR 10.35.02.08G specifically. In fact, nothing in any of the statutes in Subtitle 3 includes a requirement of strict compliance with COMAR regulations for admissibility of breath test results or a requirement of a twenty-minute observation period prior to the administration of a breath test. This is telling because the statutes demonstrate that the General Assembly knows how to impose, and has imposed, a time requirement related to the admissibility of breath test results—namely, that the breath specimen used for determining alcohol concentration must be taken within two hours after apprehension of the person accused.

See CJ § 10-303(a)(2). The General Assembly did not impose, in the statutes in Subtitle 3, the requirement of an observation period or a time requirement for the observation period set forth in COMAR 10.35.02.08G. The plain language of the statutes in Subtitle 3 is clear and unambiguous as to the - 18 - requirements for admissibility of breath test results and the statutes do not provide that breath test results are inadmissible as a result of noncompliance with the twenty-minute observation period set forth in COMAR 10.35.02.08G. By its plain language, the exclusionary rule set forth in CJ § 10-309(a)(1)(ii) does not operate to exclude evidence of a breath test that may have been obtained contrary to the provisions of the COMAR regulations.

We decline to read into CJ § 10-309(a)(1)(ii) the requirement that breath test results are not admissible if obtained contrary to the provisions of COMAR regulations. COMAR 10.35.02.08G sets forth the method for administering a breath test, but does not include an exclusionary rule that applies where strict compliance with the prescribed method is lacking. COMAR 10.35.02.08G contains thirteen subsections, but only one subsection provides for the invalidity of a breath test. To be exact, COMAR 10.35.02.08G(12) provides that “[i]f the instrument fails to obtain a reading plus or minus 10 percent of the stated concentration on the validation test, then the subject test is invalid.” In other words, the results of a breath test would be invalid, and hence inadmissible, only under the circumstance set forth in COMAR 10.35.02.08G(12).

Nothing in COMAR 10.35.02.08G(1), (2), or (3), the provisions relating to the twenty-minute observation period, mentions the invalidity or inadmissibility of breath test results where the provisions are not complied with. In the absence of any exclusionary provision in the statutes or COMAR 10.35.02.08G pertaining to noncompliance with the twenty-minute observation period, we decline to read such an exclusionary provision into either the regulations or statutes. Where neither the controlling statutes nor the relevant COMAR regulation contains - 19 - an exclusionary rule and where the Fourth Amendment exclusionary rule is not applicable,8 there is no general exclusionary rule in Maryland that would provide for the suppression of evidence in a criminal case for a violation of the Maryland laws that are at issue in this matter (driving under the influence of alcohol, driving under the influence of alcohol per se, and driving while impaired by alcohol). For instance, in King v. State, 434 Md. 472, 495 , 76 A.3d 1035, 1048 (2013), we declined to conclude that a suppression remedy existed “[b]ecause