Meanor v. State

WENNER, Judge. Appellant, Glenn Lydell Meanor, was convicted by a jury in the Circuit Court for Howard County of driving while intoxicated, driving under the influence of alcohol, and failure to obey a traffic control device, and was sentenced to a term of ⁷⁴ 90 days, of which all was suspended in favor of two years supervised probation with special conditions. On appeal, appellant presents us with the following questions: 1. Did the trial court err in instructing the jury, “If you find that at the time of testing, the Defendant had .10 percent or more by weight of alcohol in the blood, the Defendant was intoxicated,” where Mr. Meanor was not charged with the offense of driving while intoxicated per se? 2.

Did the trial court err in denying the motion to suppress the results of the breath test? Finding no error, we shall affirm the judgments of the circuit court. Facts On 11 February 1999, appellant and a friend, Charles Dixon, enjoyed numerous alcoholic beverages at the Silver Shadows nightclub in Columbia, Maryland. As they were leaving the club at about 2:30 a.m., it was decided that Dixon would drive because appellant had had “too much to drink.” Shortly thereafter, Officer Mui of the Howard County Police Department observed a car being driven erratically on Route 29, and stopped it.

Both Officer Mui and Sgt. Christis, who arrived on the scene as Officer Mui’s back-up, noticed an odor of an alcoholic beverage emanating from Dixon’s breath, and that his speech was slurred. After Dixon had performed rather poorly on several field sobriety tests and had blown into the tube, he was arrested, charged with driving while intoxicated, and taken to the police station. Before leaving the scene, the officers several times warned appellant not to drive, and offered to transport him either to a pay phone or to the police station to call for a ride.

In addition, the officers offered to arrange to have the car towed. Appellant insisted on remaining with the car, however, and said that he would use his cellular phone to call for a ride. Although Officer Mui left the scene, Sgt. Christis drove a short distance and pulled off onto the shoulder in order to keep appellant and the car in view.

Just as Sgt. Christis expected, in no more than twenty min ⁷⁵ utes, the car pulled onto the traveled portion of Route 29 driven by appellant. Sgt. Christis followed and stopped the car, after observing that it had crossed over the center line.

After appellant had gotten out of the car and performed poorly on several field sobriety tests, he was arrested and issued a Maryland Uniform Complaint and Citation form, for violating “21-902 Driving While Intoxicated & Under Influence Alcohol & Under Influence of Drugs and & Drugs & Alcohol & Controlled Dangerous Substance.” Not only was appellant offered a breathalyzer test, he was read his rights from a “DR-15 Advice of Rights form.” Appellant first refused to take the test, but later changed his mind and took the test. The test result was “[p]oint one three grams of alcohol per two hundred ten liters of breath.” After being convicted by a jury of driving while intoxicated, driving under the influence of alcohol, and failure to obey a traffic control device, appellant was sentenced to a term of ninety days in the county jail for driving while intoxicated, after the remaining charges were merged for sentencing purposes. As we have noted, the term of ninety days was suspended in favor of two years supervised probation with special conditions, and this appeal followed. Discussion The questions with which we are presented appear to be questions of first impression in Maryland.

We have not been directed to, nor have we found a reported Maryland case that involves driving while intoxicated per se, or one that involves the failure of the 1994 DR-15 Advice of Rights form to mention the Ignition Interlock System Program. Although there have been several cases involving the advice required to be given concerning the consequences of refusing to submit to a chemical test for intoxication, prescribed by § 16-205.1 of the Transportation Article, we are concerned only, in the case at hand, with use of the 1994 DR-15 form. We now turn to these issues. ⁷⁶ I. Driving While Intoxicated Per Se Appellant first contends that, as he was not charged with driving while intoxicated per se, the trial court erred in instructing the jury, “If you find that at the time of testing, the defendant had .10% or more by weight of alcohol in the blood, the defendant was intoxicated.” We do not agree. Before beginning our discussion, we shall first review the offenses with which appellant was charged.

A. As we have, noted, appellant was charged with having violated § 21-902 of the Transportation Article. 1 In filling out the Maryland Uniform Complaint and Citation form, Sgt. Christis circled violation number 33, which read, “ § 21-902 Driving While Intoxicated & Under Influence Alcohol & Under Influence of Drugs, & Drugs & Alcohol & Controlled Dangerous Substance.” According to appellant, violation number 33 does not encompass driving while intoxicated per se. We disagree. Section 21-902 of the Transportation Article is titled “Driving while intoxicated, while intoxicated per se, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance,” and includes the following four subsections: (a) Driving while intoxicated or intoxicated per se. — (1) A person may not drive or attempt to drive any vehicle while intoxicated.

(2) A person may not drive or attempt to drive any vehicle while the person is intoxicated per se. (b) Driving while under the influence of alcohol. — A person may not drive or attempt to drive any vehicle while under the influence of alcohol. (c) Driving while under influence of drugs or drugs and alcohol. — (1) A person may not drive or attempt to drive ⁷⁷ any vehicle while he is so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that he cannot drive a vehicle safely. (d) Driving while under influence of controlled dangerous substance. — A person may not drive or attempt to drive any vehicle while he is under the influence of any controlled dangerous substance, as that term is defined in article 27, § 279 of the Code, if the person is not entitled to use the controlled dangerous substance under the laws of this State.

According to appellant, although the citation he was issued charged him with violating §§ 21-902(a)(l), (b), (c) and (d), he was not charged with violating § 21-902(a)(2). Appellant insists that driving or attempting to drive any vehicle while the person is intoxicated per se constitutes a separate offense from driving while intoxicated, and must be written on the citation in the section titled: “VIOLATION NOT LISTED ABOVE CHARGE.” In the State’s view, however, “the definition of ‘intoxicated per se’ sets forth an evidentiary standard and does not create a crime distinct from driving while intoxicated; it is the same crime proven by a scientific test of evidence.” We agree. The legislative history of § 21-902(a)(2) demonstrates that what once was “prima facie evidence of intoxication,” 2 is now legally intoxicated. Prior to October 1995, § 21-902(a) provided “Driving while intoxicated. — A person may not drive or attempt to drive any vehicle while intoxicated.” Courts and Judicial Proceedings Article, § 10-807 also provided in relevant part: (e) Prima facie evidence of intoxication. — If at the time of testing a person has an alcohol concentration of 0.10 or more, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the defendant was driving while intoxicated. ⁷⁸ In October of 1995, subsection (e) of § 10-307 was repealed, and § 21-902(a) was amended to read as follows: (a)(1) A person may not drive or attempt to drive any vehicle while intoxicated.

(2) A person may not drive or attempt to drive any vehicle while the person has an alcohol concentration of 0.10 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath as determined at the time of testing. 1995 Md. Laws, Chap. 498. During the following term, the General Assembly amended § 21-902(a)(2) to read, as it now reads, “(2) A person may not drive or attempt to drive any vehicle while the person is intoxicated per se,” and enacted § 11-127.1 which defines intoxicated per se as “having an alcohol concentration at the time of testing of 0.10 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” 1996 Md. Laws, Chap. 652. This 1996 amendment substituted “is driving while intoxicated per se” for “has an alcohol concentration of 0.10 or more as measured by grams of alcohol per 100 millimeters of blood or grams of alcohol per 210 liters of breath as determined at the time of testing.” 1995 Md. Laws, Chap. 652. Thus, the General Assembly chose to add the language, “A person may not drive or attempt to drive while the person is intoxicated per se” to § 21-902(a) to define a person who was driving a vehicle while intoxicated.

The terms “driving while intoxicated and intoxicated per se” are treated consistently throughout the Transportation Article. For example, § 27-101 provides that “It is a misdemean- or to violate any of the provisions of the Maryland Vehicle Law ...” and refers only to § 21-902(a),(b),(c), and (d). Section 27-101(k) provides: (k) Violation of § 21-902(a). — (1) Except as provided in subsection (q) of this section, any person who is convicted of a violation of any of the provisions of § 21-902(a) of this article (“Driving while intoxicated or intoxicated per se”): ⁷⁹ (i) For a first offense, shall be subject to a fíne of not more than $1,000, or imprisonment for not more than 1 year, or both ... (2) For the purpose of second or subsequent offender penalties for violation of § 21-902(a) of this article provided under this subsection, a prior conviction of § 21 — 902(b), (c), or (d) of this article, within 5 years of the conviction for a violation of § 21-902(a) of this article, shall be considered a conviction of § 21-902(a) of this article.

We emphasize that § 27-101 refers only to “the provisions of § 21-902(a) of this article (Driving while intoxicated or intoxicated per se),” then specifically refers to prior convictions of § 21 — 902(b), (c) or (d) in providing penalties for subsequent convictions of violating § 21-902(a). Moreover, the penalties for “Driving while intoxicated or intoxicated per se” are precisely the same, further indicating that § 21-902(a) includes both driving while intoxicated and intoxicated per se. We look now to the violations lodged against appellant in order to determine whether those violations include driving while intoxicated per se. On the Uniform Complaint and Citation issued to appellant, he was simply charged with violating § 21-902.

Section 26^405 provides: Lesser included offenses under §§ 21-901.1 and 21-902 —If a person is charged with a violation of § 21-901.1 of this article (“Reckless and negligent driving”) or § 21-902 of this article (“Driving while intoxicated, while intoxicated per se, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance”), the court may find him guilty of any lesser included offense under any subsection of the respective section. (Emphasis added.) Moreover, § 26-405 permits one charged only with violating § 21-902 to be convicted of violating one or more of its subsections. As noted, these subsections include: “Driving while intoxicated, while intoxicated per se, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance.” ⁸⁰ Although appellant was simply charged with violating § 21-902, as trial began, the prosecutor said, “The State would ask the Court to proceed on § 21-902(a) and (b).” While the verdict sheet submitted to the jury listed driving while intoxicated and driving while under the influence of alcohol, driving while intoxicated per se was not listed. Accordingly, as appellant was convicted only of driving while intoxicated and driving while under the influence of alcohol, there was no need to refer to § 21-902(a)’s separate provisions.

Appellant relies on Beckwith v. State, 320 Md. 410 , 578 A.2d 220 (1990), to persuade us that he was not charged with § 21-902(a)(2). Beckwith was charged with violating § 21-902(a), but convicted of § 21-902(b) and the Court of Appeals explained: If the police officer had intended to charge the greater offense of driving while intoxicated so as to embrace the lesser offense of driving while under the influence, number 34 would have specifically covered that situation. The police officer, however, did not circle number 34. Instead, number 35, charging only the greater offense driving while intoxicated was circled, as well as underscored.

Under these circumstances, a reasonable defendant would conclude that he was being charged with the greater offense and only the greater offense. The charging document expressly and clearly showed how the greater offense of driving while intoxicated was to be charged so that it would include the lesser offense of driving while under the influence. The defendant was not charged in this manner. Instead, the State charged the defendant with driving while intoxicated in a way which clearly appeared to exclude the lesser charge.

Id. at 415, 578 A.2d 220 . Hence, Beckwith’s conviction of the lesser charge was reversed. Appellant’s reliance on Beckwith is misplaced. As noted, Sgt.

Christis circled violation number 33, which includes all of § 21-902’s lesser included offenses. We do not agree that driving while intoxicated per se was excluded. It was not ⁸¹ necessary for the officer to have specified that charge in the section of the citation entitled “VIOLATION NOT LISTED ABOVE.” We note that if appellant had been specifically charged with violating § 21-902(a)(2), driving while intoxicated per se, the State would have been limited to the “all or nothing” approach described in Insley v. State, 32 Md.App. 46, 48 , 358 A.2d 246, 247 (1976) (By specifically charging a defendant with § 21-902(a) Driving while intoxicated, the State “forwent the right to drop down to a lesser charge, should its proof fail to result in a conviction of the greater charge.”) The general charge is permitted because it would be impractical to require the arresting officer to make a roadside determination as to whether a suspected drunk driver is intoxicated or under the influence, that is above or below .10 alcohol concentration. Driving while intoxicated and driving under the influence of alcohol “differ only in the grade of proof required to support a conviction,” See Thompson v. State, 26 Md.App. 442, 450 ,