Major v. State

Orth, C. J., delivered the opinion of the Court. The General Assembly, mindful of the safety of persons in this State and heedful of the general welfare, has acted to deter a person who has consumed alcohol from driving a vehicle on the highways of Maryland. There are criminal consequences and administrative consequences. In the two September Term, 1975 appeals which we decide in this opinion, John H. Major, Jr. v. State, No. 998, and James William Flanagan v. State, No. 1030, we are concerned with the criminal consequences of drunken driving.

The appeals pose, in different factual postures, a common question: may a person be convicted of driving a vehicle while under the influence of alcohol in the absence of evidence showing the ⁵⁹² alcoholic content in his body according to chemical analysis made pursuant to tests prescribed by statute? THE LAW Code, Art. 66Vz, § 11-902 (a) and (b) created two misdemeanors h “(a) It shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while he is in an intoxicated condition. (b) It shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while his driving ability is impaired by the consumption of alcohol.” Manifestly as an aid in the fact finding process, the Legislature has prescribed that “ [i]n a prosecution for a violation of a law concerning a person who is driving or attempting to drive a vehicle in violation of § 11-902 of Article 66V2 of the Code a chemical test of his breath, blood, urine, or other bodily substance may be administered to the person for the purpose of determining the alcoholic content in his body.” Courts Art. § 10-302. When such a test has been administered, the amount of alcohol in the person’s body as shown by the chemical analysis is admissible in evidence in the criminal proceedings.

Courts Art. § 10-307 (a). 1 2 ⁵⁹³ The vehicle laws attempt to insure that a chemical test be administered. An applicant for a license to operate a motor vehicle upon the highways of this State must, as a condition precedent to the issuance of such license, sign a statement under oath or affirmation consenting to take a chemical test should he be detained upon suspicion of operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor or while his ability is impaired by the consumption of alcohol. Code, Art. 66V2, § 6-205.1, subsection (a). Consent of non-residents and unlicensed persons is implied, subsection (b).

It is 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 detain such person, request that he take a chemical test to determine the alcoholic content of his blood, breath or urine and to advise the person of the administrative penalties which may be imposed for refusing to take a test. Subsection (c). If a detained person refuses to take a test, subsection (d) spells out a procedure leading to the suspension of his operator’s license. None of this means, however, that with respect to a criminal prosecution, evidence of the alcoholic content in the body of the accused according to chemical analysis made pursuant to a prescribed test is a prerequisite of a conviction of the crimes proscribed by Code, Art. 66V2, § 11-902.

That there be no chemical test administered may come about in several ways. “A person may not be compelled to submit to a chemical analysis. ... 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.” Courts Art. § 10-309 (a). These ⁵⁹⁴ provisions make perfectly clear that a criminal charge under Art. 66V2, § 11-902 may come to trial with no chemical test having been administered because the accused refused to submit to it, and that the refusal to submit shall have no adverse effect on the accused in a criminal proceeding. 3 Courts Art. § 10- 305 gives a defendant the right to select the type of test administered.

It mandates — “if facilities or equipment are not available for that test then none may be given.” Thus, there may have been no chemical test administered because there were no facilities or equipment for the test selected by an accused. 4 As in the case of a refusal to take the test, this “does not create an inference or presumption concerning either [the defendant’s] guilt or innocence by reason of his inability to take the test. The fact of his inability to take a test is not admissible in evidence at his trial. . . .” Courts Art. § 10-305. 5 A test may not have been adminstered because no test was offered or requested by the police officer, despite the provisions of Code, Art. 66V2, § 6-205.1 (c). Courts Art. § 10-304 (d) contemplates such an event. Not only is the person tested permitted to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer, but “in the event no test is offered or requested by the police officer, the person may request, and the officer shall have administered, one of the chemical tests provided for in this section.” Thus, if the officer has not offered a test and the defendant has not requested a test, none will have been given.

Another circumstance which may preclude the administering of a chemical test is that the specimen was ⁵⁹⁵ not timely taken. Courts Art. § 10-303 requires: “The specimen of breath, blood, or urine shall be taken within two hours after the person accused is apprehended.” It appears that if a chemical analysis is made from a specimen taken more than two hours after the person is apprehended, evidence thereof may be excluded at the criminal trial. Courts Art. § 10-309 (a) contains the provision: “Evidence of chemical analysis is not admissible if obtained contrary to [the provisions of subtitle 3, Title 10 of the Courts Art.].” In the light of these provisions, we are convinced that the Legislature did not intend that evidence of the alcoholic content of a person’s body, obtained through the prescribed chemical tests for intoxication, be a prerequisite of conviction for violation of the crime created by Art. 66V2, § 11-902. Had we any doubt, it would be removed by Courts Art. § 10-308: “The evidence of the chemical analysis does not limit the introduction of other evidence bearing upon whether the defendant was in an intoxicated condition, under the influence of intoxicating liquor, or his driving ability was impaired by the consumption of alcohol.” If evidence of the chemical analysis does not limit the introduction of other evidence bearing upon whether the defendant was in an intoxicated condition, under the influence of intoxicating liquor, or his driving ability was impaired by the consumption of alcohol, patently, reasonably and logically, such other evidence may be introduced when there is no evidence of a chemical analysis.

To adopt a contrary view would be unreasonable and inconsistent with common sense. See Height v. State, 225 Md. 251, 259 (1961); Nooe v. City of Baltimore, 28 Md. App. 348, 355 (1975). A person accused of committing the offenses proscribed by Code, Art. 66V2, § 11-902 could completely thwart any prosecution by refusing to submit to one of the prescribed tests. We conclude that a person may be convicted of driving a vehicle while in an intoxicated condition or while his driving ⁵⁹⁶ ability was impaired by the consumption of alcohol in the absence of evidence establishing the alcoholic content of his body according to chemical analysis made pursuant to tests prescribed by statute.

To put it another way, the introduction of evidence with respect to the alcoholic content in the accused’s body, as shown upon chemical analysis through tests pursuant to Courts Art. §§ 10-302 through 10-309, is not a prerequisite to a conviction of the crimes proscribed by Art. 66V2, § 11-902 (a) and (b). Conviction may be had on any competent evidence legally sufficient to establish the corpus delicti of the crimes and the criminal agency of the accused. THE CASES SUB JUDICE Major v. State, No. 998, September Term, 1975 On 2 December 1974 John H. Major, Jr. was issued four summonses charging him respectively with operating a motor vehicle while intoxicated by the consumption of an alcoholic beverage, with operating a motor vehicle when his license was “refused, canceled, surrendered or revoked”, with “failing to stop after a property damage accident”, and with failure to use reasonable care to prevent an accident. In the District Court he demanded a jury trial.

The cases were transferred to the Criminal Court of Baltimore where he was convicted of the first three offenses at a bench trial on 1 October 1975. He was sentenced to a total of two years 6 and appealed. He attacks only the judgment rendered upon his conviction of operating a motor vehicle while intoxicated. The State’s case consisted of a stipulation as to what certain witnesses would testify were they present and two exhibits admitted without objection — Major’s driving record and the arresting officer’s certification, on a form designated as DR 15, of Major’s refusal to submit to a chemical test.

The officer, responding to an accident, saw Major in physical control of a motor vehicle which had been ⁵⁹⁷ involved in an accident with another vehicle. Major had left the actual scene. According to the officer, Major had a strong odor of alcohol on his breath, his clothes were mussed, his attitude was indifferent and he staggered when he walked. He had no valid Maryland operator’s license.

The officer requested that Major submit to a breathalyzer test. The DR 15 form gave as the reasonable grounds for the officer’s belief that Major was in violation of Art. 66V2, § 11-902 (a) or (b): “Odor of alcohol about his breath, staggering, involved in accident, left scene.” The form originally indicated that Major desired “to take a chemical test to determine the alcoholic content of [his] blood.” Under the heading, “If consent given, which test . was administered”, “urine” is denoted. The check mark indicating that Major consented to take the test, however, is crossed out and the word “refused” is written next to it. According to the stipulation, Major was taken to the breathalyzer room, where “the performance test” was administered by the chemist, “which would indicate the balance was wobbling, walk was stumbling, turning hesitant, finger to nose test he completely missed, on the ability to understand instructions it is indicated fair.

He could have gotten good or poor. The officer who administered the test on remarks stated the subject refused to blow into the machine because T had been drinking all weekend and I don’t want to put all of that stuff in the machine’.” Major testified in his own behalf. He said he had driven from his job in Washington about 10 or 10:30 a.m. in a vehicle which was in his name but which he did not own. About 1:30 p.m. he drove from “Smallwood to the east side” to get a hair cut.

As he pulled away from the barber shop he struck another car. He tried to catch the other car but could not because the fender on his car was bent in. He pulled to the side and a police officer came up. He told the officer what happened.

The officer asked if he had been drinking. The transcript reads: “A. ... I told him no. He said, well, you have a ⁵⁹⁸ drinking problem.

I said yes. I said I am an alcoholic but my being an alcoholic doesn’t mean that I drink. Q. Did he ask you to take a breathalyzer test? A. He asked me to take a breathalyzer test.

Q. What did you tell him? A. I refused. Q. Did you tell him you would take any test at all? A. I told him I would take a urine test or blood test.

Q. Did he agree to that? A. He did. He told me, he say, I would have to pay $10.00 and he would have to take me to City Hospital. Q. Did you do that?

A. I pulled out the money. I said, well, I will pay it. Q. Did he ever take you to City Hospital? A. No, he say he didn’t have time.

Q. Did he take you to where you blow into the balloon? A. Yeah, that is where I was at first. Q. Did you blow into the balloon? A. No, I didn’t.

Q. Why didn’t you blow in the balloon? A. Because I have been stopped several times and all of those times I have been drinking and every time I blow in the balloon the thing comes up and say I