Langway v. State

⁴⁰⁹ GARRITY, Judge. In this case we shall address the question whether the trial judge erred by instructing the jury regarding statutory presumptions applicable to a blood test for alcohol when the test in question was properly admitted into evidence but was not taken and analyzed in conformity with the requirements set forth in Md.Cts. & Jud.Proc.Code Ann. §§ 10-302 through 10-306. STATEMENT OF THE FACTS On the morning of July 13, 1990, at approximately 12:40 a.m., appellant Michael Langway was the driver of a vehicle travelling south on Maryland Route 4. Appellant and the four passengers in the vehicle were returning home from a concert in the District of Columbia, where appellant had consumed four beers.

As appellant approached the intersection of Route 4 and Spaulding Drive at a speed of 60-65 miles an hour (5-10 mile per hour over the speed limit), appellant, after urgent warnings from his passengers of an approaching red traffic signal, sharply applied the vehicle’s brakes in an attempt to stop. Appellant’s vehicle slid on the wet roadway through the intersection and struck an oncoming vehicle operated by William Weaver. Mr. Weaver died from injuries sustained in the collision. Appellant, who was injured in the collision, was transported by emergency vehicle to the Prince George’s Hospital Center.

Sometime between 2:30 and 2:36 a.m. hospital personnel took a sample of Mr. Langway’s blood in order to perform an analysis for treatment purposes. Hospital laboratory personnel performed a serum blood analysis of appellant’s blood sample and the ethanol content of the blood was reported as .08 grams of alcohol per 100 milliliters of blood. Undisputed expert testimony revealed that the results produced by a serum blood alcohol analysis can be as much as 25 percent higher than a whole blood analysis performed on the same sample and that in this case the same blood ⁴¹⁰ sample could have tested as low as 0.6 grams of alcohol per milliliter of blood had the whole blood test been used. At approximately 3:45 a.m. the police officer investigating the accident interviewed appellant at the hospital and appellant acknowledged that he had consumed four beers at the concert.

At approximately 4:00 a.m. the officer read appellant an advice of rights form regarding submission to a chemical test of the breath or blood, which advised appellant that he had been detained and that reasonable grounds existed to believe that he had been driving while intoxicated, or while under the influence of alcohol. Appellant agreed to submit to a blood test. A second sample of appellant’s blood was collected at a 4:05 a.m. at the direction of the investigating officer. Using whole blood analysis (as opposed to the serum blood analysis used to test the first sample), this sample was tested at the Maryland Crime Laboratory with a result of .04 grams of alcohol per 100 milliliters of blood.

On November 9,1990 the Grand Jury for Prince George’s County returned a nine count indictment charging appellant as follows: Count 1: Motor vehicle manslaughter Count 2: Reckless driving Count 3: Negligent driving Count 4: Homicide while intoxicated Count 5: Driving while intoxicated Count 6: Driving under the influence Count 7: Speed greater than reasonable and prudent Count 8: Failure to control speed to avoid collision with another vehicle Count 9: Failure to stop at a red light The case proceeded to a jury trial on December 16, 1991. Over appellant’s objection the trial judge admitted into evidence the results of the serum blood test ordered by appellant’s treating physician. The blood test result was admitted as a business record, not as a test performed ⁴¹¹ pursuant to §§ 10-302 through 10-306 of the Md.Cts. & Jud.Proc.Code Ann. The trial court further ruled that the jury could be instructed to apply the presumptions set forth in Md.Cts. & Jud.Proc.Code Ann. § 10-307 to the results of the serum blood analysis performed at the direction of appellant’s treating physician. The defendant objected to this instruction, arguing that the statutory presumptions did not apply to the results of the first blood test.

The basis for appellant’s objection was that the hospital test was not performed in accordance with the requirements set forth in Md.Cts. & Jud.Proc.Code Ann. § 10-302 through 10-306. The trial judge, however, adopted the State’s argument and ruled that the presumptions were applicable with regard to the first test because that test had been given within two hours of the accident and had been performed by medical personnel. At the conclusion of the evidence the trial judge granted defendant’s motion for judgments of acquittal as to Counts 4 and 5. Prior to the submission of the case to the jury the State nolle prossed Counts 2 and 8 without objection.

The jury subsequently returned a verdict of guilty on each of the remaining