Insley v. State

Powers, J., delivered the opinion of the Court. Joseph Walton Insley was convicted by a jury in St. Mary’s County of driving a vehicle while he was in an ⁴⁷ intoxicated condition. He complains in this appeal that the trial judge, Joseph A. Mattingly, erred in declining to instruct the jury that it may consider the lesser crime of driving while his ability to drive was impaired by the consumption of alcohol. Appellant bases his contention upon the provisions of Code, Art. 66V2, § 11-902, read together with § 16-104.

Section 11-902 at that time 1 defined different offenses, making it unlawful for any person to drive or to attempt to drive or to be in actual physical control of any vehicle: (a) While he is in an intoxicated condition. (b) While his driving ability is impaired by the consumption of alcohol. (c) While he is under the influence of any narcotic drug. Section 16-104, in words which appear to be permissive, provides: “It shall be sufficient to charge any person with a violation of § 11-901 (reckless and negligent driving) and § 11-902 (driving while intoxicated, impaired or under the influence of drugs) and the court is empowered to make a finding under any subsection of either § 11-901 or § 11-902.” The charging document, a Maryland Uniform Complaint and Citation, issued by a Maryland State Trooper, charged that on Sunday, March 2, 1975, at 8:58 P.M., the defendant did unlawfully violate Article 66V2 § 11-902, Subsection (a), by operating a motor vehicle while under the influence of alcohol, at State Route 235, Hollywood, St. Mary’s County.

See Maryland District Rules 702, 706. Cf. State v. Dodd, 17 Md. App. 693 , 304 A. 2d 846 (1973). In the District Court Insley filed a notice exercising his right to trial by jury. 2 The papers were transmitted to the ⁴⁸ Circuit Court for St. Mary’s County.

See Wilson v. State, 21 Md. App. 557 , 321 A. 2d 549 (1974). At the beginning of the jury trial in the Circuit Court the Assistant State’s Attorney moved for and was granted leave to amend the charging document “by striking the words, ‘under the influence of alcohol,’ and inserting in lieu thereof, ‘in an intoxicated condition,’ so as to conform to