Loscomb v. State

Gilbert, C. J., delivered the opinion of the Court. —PREFACE— This case was argued before the Court on December 10, 1979. We issued an opinion on January 10, 1980. Appellant filed a motion for reconsideration. We granted that motion and recalled the opinion as filed on January 10, 1980.

As a result of our reconsideration, we modify our original opinion. —THE LAW— Whenever an operator of a motor vehicle is believed, while "intoxicated,” 1 to have caused the death of another person as a result of the manner in which he or she drove his or her ⁶⁰⁰ motor vehicle, the operator is subject to being charged with either or both of two distinct violations of the Criminal Law. Md. Ann. Code art. 27, § 388 provides: "Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as 'manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle,’ and the person so convicted shall be sentenced to jail or the house of correction for not more than three years, or be fined not more than $1,000.00 or be both fined and imprisoned. In any indictment or warrant for manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle, it shall not be necessary to set forth the manner and means of death. It shall be sufficient to use a formula substantially to the following effect: 'That A-B on the........day of........, nineteen hundred and........at the County (City) aforesaid, unlawfully, in a grossly negligent manner did kill and slay C-D.’ ” [2] Cognizant of the degree of difficulty confronting State’s Attorneys’ efforts to prove "gross negligence” in order to establish guilt under section 388, 3 the Legislature enacted a new substantive offense that contained many of the elements of manslaughter by motor vehicle, but added the additional factor of "intoxication,” and reduced the "gross ⁶⁰¹ negligence” standard of section 388 to "negligence.” Md. Ann. Code art. 27, § 388A.

The title to Laws 1978, ch. 454, declares that: "FOR the purpose of providing that any person causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor; specifying a name for the misdemeanor; setting the penalties for the misdemeanor; specifying that an indictment for the crime need not contain certain information; providing a form for the indictment; [and] defining intoxicated as it relates to this crime.. ..” (Emphasis supplied.) Immediately thereafter, the crime of "Homicide by motor vehicle while intoxicated,” section 388A was added to Article 27 of the Maryland Code. Section 388A provides in pertinent part: "(a) In this section 'intoxicated’ has the same meaning as indicated in and is subject to the same presumptions and evidentiary rules of § 10-307 of the Courts Article regarding intoxication under the vehicle laws of this State. (b) Any person causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor to be known as 'homicide by motor vehicle while intoxicated,’ and the person so convicted shall be punished by imprisonment for not more than two years, or by fine of not more than $1,000 or both fine and imprisonment. In any indictment, information, or warrant for homicide by motor vehicle while intoxicated, it is not necessary to set forth the manner and means of death.

(c) It shall be sufficient to use a formula substantially to the following effect: 'That A-B on ⁶⁰² the.......day of.......nineteen hundred and .......at the County (City) aforesaid, unlawfully, while intoxicated did kill C-D, against the peace, government, and dignity of the State.’ ” [4] A critical part of any prosecution under section 388A is the establishment by the State of the fact that the accused was intoxicated within the meaning "of § 10-307 of the Courts Article.” Consequently, when the State endeavors to prove a charge of "Homicide by motor vehicle while intoxicated” it must rely upon Md. Cts. & Jud. Proc. Code Ann. (1974) § 10-307, in order to demonstrate to the trier of fact that the accused was intoxicated. Courts Art. § 10-307 provides: "(a) In general. — In a proceeding in which a person is charged with a violation of § 388A of Article 27 [5] or with driving or attempting to drive a vehicle in violation of § 21-902 of the Transportation Article, [6] the amount of alcohol in the person’s breath or blood shown in chemical analysis as provided in this subtitle is admissible in evidence and has the effect set forth in subsections (b) through (e) of this section.

(b) No intoxication presumed. — If there was in his blood at the time of testing 0.05 percent or less, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be presumed that the defendant was not intoxicated and that his driving ability was not impaired by the consumption of alcohol. (c) No presumption. — If there was in his blood at the time of testing more than 0.05 percent, but less ⁶⁰³ than 0.10 percent, by weight, of alcohol, as determined by an analysis of his blood or breath, this fact may not give rise to any presumption that the defendant was or was not intoxicated or that his driving ability was or was not impaired by the consumption of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. (d) Prima facie evidence of impairment. — If there was in his blood at the time of testing 0.10 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be prima facie evidence that the defendant’s driving ability was impaired by the consumption of alcohol. (e) Prima facie evidence of intoxication. — If there was in his blood at the time of testing 0.15 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be prima facie evidence that the defendant was intoxicated.” (Emphasis supplied.) The General Assembly did not expressly amend Courts Art. § 10-302 which provides: "In a prosecution for a violation of a law concerning a person who is driving or attempting to drive a vehicle in violation of § 21-902 of the Transportation Article, a chemical test of his breath or blood may be administered to the person for the purpose of determining the alcoholic content of his blood.” (Emphasis supplied.) The net effect of section 10-302, however, is to permit a chemical test whenever there is a violation of any law that involves driving while intoxicated or impaired.

Even if such were not the situation, it is patent that the chemical test may be administered to a person charged with a violation of section 388A because in order to violate that section of the criminal code, a violation of Transportation Art. § 21-902 must also occur. Stated more simply, to be guilty of ⁶⁰⁴ "Homicide by motor vehicle while intoxicated” requires, of necessity, that the operator of the vehicle be intoxicated within the scope of Transportation Art. § 21-902. An integral part of the legislative scheme to detect and punish the operator of a motor vehicle while intoxicated 7 is that the person accused of violating Transportation Art. § 21-902 or Md. Ann. Code art. 27, § 388A, is not compelled to submit to a chemical analysis, notwithstanding that he or she signed a statement of consent as a prerequisite to obtaining a driver’s license, or renewal thereof, to submit to a chemical test of his or her blood or breath if he or she is " 'detained on suspicion of driving or attempting to drive .. . while intoxicated or ... impaired by consumption of alcohol.’ ” Transportation Art. § 16-205.1 (a) (l). 8 Courts Art. § 10-309 provides: "(a) Test not compulsory. — A person may not be compelled to submit to a chemical analysis provided for in this subtitle. Evidence of chemical analysis is not admissible if obtained contrary to its provisions.

No inference or presumption concerning either guilt or innocence arises because of refusal to submit. The fact of refusal to submit is not admissible in evidence at the trial. (b) Consequences of refusal. — This subsection does not limit the provisions of the vehicle laws regarding the consequences of refusal to submit to a chemical test or tests.” The predecessor to Courts Art. § 10-309 was interpreted by the Court of Appeals in Mauldin v. State, 239 Md. 592 , 212 A.2d 502 (1965). In that case, the Court observed that former Md. Ann. Code art. 35 (Evidence), § 100 (c) provided that " 'no person shall be compelled to submit himself * * * for the purpose of chemical analysis * * * and no inference * * * concerning his guilt or innocence arises by reason of his re ⁶⁰⁵ fusal to submit * * ” The Court went on to state that "the failure to affirmatively or validly agree to .. . [the chemical analysis] does not bar the presentation of its results into evidence.” Mauldin argued that even though he had been advised of his rights, Md. Ann. Code art. 35, § 100 (g), and had consented to the test, his intoxicated state negated the consent.

The Court disagreed. Although in Mauldin the Court did not expressly incorporate then Article 35, § 100 (g) into Md. Ann. Code art. 27, § 388, they at least required its application. We do not read Mauldin as holding that the detained person need not be advised of his right to select the type of test, if any, to which he will submit for purposes of analysis, nor do we read it as sanctioning any type of trickery so as to obtain from the detained person a blood or breath sampling for analysis. Effective July 1,1969, Md. Ann. Code art. 66V2, § 92A was enacted by Laws 1969, ch. 158.

Section 92A was subsequently redesignated as section 6-205.1 9 and now appears as Transportation Art. § 16-205.1. Former section 92A provided in pertinent part: "(c) It shall be the duty of any police officer who stops or detains any person who he has reasonable grounds to believe is or has been operating or attempting to operate a motor vehicle under the influence of alcohol, or who is or has been operating or attempting to operate a motor vehicle while his ability was impaired by the consumption of alcohol to do all the following things: 1. Detain such person. 2. Request that he take a chemical test or tests of his blood, breath or urine, for the purpose of determining the alcoholic content of his blood, to be administered by a person examined and certified as sufficiently equipped and trained to administer such tests by the Department of Maryland State Police, which is authorized to promulgate rules and regulations for the examination and certification, if ⁶⁰⁶ detained by a member of the Department of Maryland State Police or by a member of a local police agency which has a member examined and certified to administer the tests. 3.

Advise the person of the administrative penalties that may be imposed for such refusal. 4. File with the Department of Motor Vehicles within 48 hours after such detention, a sworn report that he had reasonable grounds to believe that said person had been operating or attempting to operate a motor vehicle upon the highways of this State while under the influence of alcohol, or that said person operated or attempted to operate a motor vehicle upon the highways of this State, while his ability was impaired by the consumption of alcohol and that said person refused to take the chemical test for alcohol, upon the request of the police officer and after having been informed of the administrative penalties that may be imposed for said refusal.” [10] The current statute, Transportation Art. 16-205.1 (c) mandates: "Duty of police officer on stopping or detaining suspected person. — If a police officer stops or detains any individual who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while intoxicated or while his driving ability is impaired by the consumption of alcohol, the police officer shall: (1) Detain the individual; (2) Request that the individual permit a chemical test to be taken of his blood or breath to determine the alcoholic content of his blood; ⁶⁰⁷ (3) Advise the individual of the administrative penalties that may be imposed for refusal to take the test; (4) If the individual is licensed under this title, furnish him with a copy of the statement set forth in subsection (a) of this section and inform the individual that he signed this statement when applying for a license; and (5) If the individual refuses to take the test, file with the Administration, within 48 hours after detention, a sworn report that: (i) The officer had reasonable grounds to believe that the individual had been driving or attempting to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State while intoxicated or while his driving ability was impaired by the consumption of alcohol; and (ii) The individual refused to take the chemical test for alcohol when requested by the police officer and after being informed of the administrative penalties that may be imposed for refusal.” [11] Although an isolated reading of that code section would limit its application only to the offenses of "driving or attempting to drive a motor vehicle while intoxicated or ... driving ability is impaired by consumption of alcohol,” we discern that the legislative intent is clear that the dictates of the statute are not so confined. In the title to Laws 1969, ch. 158, the General Assembly stated: "AN ACT to add new Section 92A to Article 66V2 of the Annotated Code of Maryland (1967 Replacement Volume, 1968 Cumulative Supplement), title 'Motor Vehicles,’ subtitle 'Administration-Registration-Titling,’ to follow im ⁶⁰⁸ mediately after Section 92 thereof; and to add new Section 104A to the same Article to follow immediately after Section 104 thereof; and to repeal Section 206 of the same Article, subtitle 'Operating Vehicles upon Highways,’ and to enact new Section 206 to stand in the place and stead of the Section so repealed; to provide as a condition to obtaining or renewing a motor vehicle driver’s license, the applicant shall expressly consent to the taking of a chemical test of his blood, breath, or urine, and to provide that the operation or attempted operation of a motor vehicle on the public highways of this State by a validly licensed non-resident motor vehicle operator implies the consent of the operator to the taking of a chemical test of his blood, breath, or urine, if either the resident or non-resident motor vehicle operator is detained by the Maryland State Police or by certain qualified members of local police agencies, and the test is to be given by persons certified and qualified for any offense alleged to have been committed while operating a motor vehicle in an intoxicated condition or operating while his driving ability is impaired by the consumption of alcohol, relating to the presumption arising from a refusal to take a chemical test, and to the revocation, suspension or refusal of licensing, providing for hearing and appeal from suspension or refusal of licensing, and to notify other states in such cases, and relating generally to the licensing of motor vehicle operators and the operation of motor vehicles in this State.” (Emphasis supplied.) ⁶⁰⁹ The Legislature apparently meant that Transportation Art. § 16-205.1 (c) should be applied in all instances in which the operation of a motor vehicle in an intoxicated or impaired condition constitutes an element of an offense. In the preceding chapter of Laws 1969, i.e., Ch. 157, the Legislature enacted then Article 35, § 100 (a).

That section provided in pertinent part: "(a) In any criminal prosecution for a violation of Section 206 of Article 66 Va of this Code (1957 Edition, as amended from time to time) or for a violation of any other law of this State concerning a person who is under the inñuence of intoxicating liquor driving or attempting to drive any vehicle as specified in the other laws, the person may be given a chemical test of his breath, blood or urine or other bodily substance for the purpose of determining the alcoholic content of his blood; provided, that the specimen of blood, breath or urine must have been taken within two hours after the person being prosecuted was first apprehended by the arresting officer; and that the test is administered by qualified personnel with equipment approved by the toxicologist of the office of the chief medical examiner of the Department of Post-Mortem Examiners at the direction of a police officer having reasonable grounds to believe the person to have been