Meanor v. State

WILNER, Judge. Petitioner, Glenn Meanor, was convicted 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, for which he was given a suspended jail sentence. Those judgments were affirmed by the Court of Special Appeals. Meanor v. State, 134 Md.App. 72 , 758 A.2d 1124 (2000).

We granted certiorari to consider whether (1) petitioner was effectively charged with driving while intoxicated per se, (2) the trial court erred in instructing the jury that petitioner was intoxicated if his blood alcohol content (BAC) was 0.10 or more, and (3) the results of a breath test that he opted to take were admissible in light of the arresting officer’s failure to inform him that, if he refused to take the test, the Motor Vehicle Administration (MVA) could modify an otherwise automatic suspension of his driver’s license and issue him a restrictive license if he participated in the Ignition Interlock System Program. Our responses to these questions, which we shall address in a slightly different order, will lead to a vacation of the Court of Special Appeals judgment. BACKGROUND The relevant facts are essentially undisputed. Meanor and a friend, Dixon, spent the evening of February 11, 1999, drinking at a nightclub.

When they left the club, they agreed that Meanor had too much to drink and that Dixon should drive Meanor’s car. They had not proceeded far when Dixon was stopped by Officer Mui, who had observed the car weaving between lanes. After failing several field sobriety tests, Dixon was arrested. Mui and Sergeant Christis, a backup ⁵¹⁴ officer who arrived at the scene, noted a strong odor of alcohol on Meanor’s breath and the fact that he had glassy eyes and slurred speech.

Believing that he, too, was intoxicated, the officers directed him not to drive. They offered to take him to the police station or to a public telephone and advised that they could arrange to have the car towed or he could wait on the shoulder for a ride home. Meanor declined their offer of assistance and said that he would use his cell phone to make the necessary arrangements. Officer Mui transported Dixon to the police station, and Sergeant Christis drove a short distance away and parked in the center median strip so that she could keep Meanor’s vehicle in view.

Some 20 minutes later, Christis observed Meanor pull onto the road and resume his journey. She began following the car, and, when it crossed the white line separating the road from the shoulder, she initiated a traffic stop. When Meanor performed poorly on three field sobriety tests, Christis placed him under arrest and seated him in the back of her police car. She then read him the Advice of Rights from the DR-15 form prepared by MVA regarding his right to take or refuse to take the breathalyzer test mandated by State law.

Meanor made no election at that time, and they proceeded to the police station, where he was directed to read for himself the Advice of Rights form. After doing so, he initially refused to take the test but later, upon learning that Dixon had been processed and released, he consented. The test was performed, and the results showed a BAC of 0.13. Meanor was issued two citations.

One, we presume, was for the traffic control violation. On the other, relevant here, Sergeant Christis circled Item 33, charging Meanor with violating “21-902 Driving While Intoxicated & Under Influence Alcohol & Under Influence of Drugs, & Drugs & Alcohol & Controlled Dangerous Substance.” Upon Meanor’s request for a jury trial, the case was transferred from the District Court to the Circuit Court for Howard County. At trial, Meanor said that, after the officers left, he made several calls on his cell phone to arrange a ride but succeeded in reaching only answering machines. "While waiting for someone to ⁵¹⁵ return his call, the battery in his cell phone went dead, and, fearing for his safety while parked on the side of the road, he decided to proceed to the next exit and find a pay phone.

At the commencement of trial, the State informed the court and Meanor that he was being charged generally under § 21-902 of the Transportation Article, and it asked that the case proceed under § 21-902(a) and (b). Meanor then moved, in limine, to exclude the results of the breath test on the ground that he was not properly advised of the consequences of refusing to take the test. Specifically, he pointed out that the advice of rights he was given stated that a refusal to take the test would result in a suspension of his driver’s license for 120 days, if this were a first offense, and that he would be ineligible for a modification of the suspension or the issuance of a restricted license. It did not, he complained, inform him that MVA could modify the suspension if he agreed to participate in the Ignition Interlock System Program authorized under § 16-404.1 of the Transportation Article.

The court denied the motion and, at the appropriate time, the results of the breath test were admitted. In its instructions to the jury, the court explained the offenses of driving while intoxicated and driving under the influence of alcohol. With respect to the former, it told the jury that a person is intoxicated when the alcohol that he has consumed has substantially impaired normal coordination and, over Meanor’s objection, added this language: “Now you’ve heard evidence in this case that the Defendant’s breath was tested for the purposes of determining the alcoholic content of the Defendant’s blood. The [ejffect of such results is as follows.

If you find that at the time of testing, the Defendant had point one zero percent or more by weight of alcohol in the blood, the Defendant was intoxicated.” The prosecutor stressed that point during closing argument and reminded the jury several times that the test results showed a BAC of 0.13. During its deliberations, the jury sent a note asking, “if we agree that the blood alcohol level was ⁵¹⁶ point one three, are we required to find the Defendant guilty of driving while intoxicated,” to which the court replied that all elements of the crime must be proved beyond a reasonable doubt and that the jury may review the court’s instructions. As noted, the jury convicted of both driving while intoxicated and driving under the influence of alcohol. DISCUSSION The issues raised by Meanor, centering on the challenged jury instruction and the reception into evidence of the BAC test results, can be understood only in the context of statutory changes made over the past decade to the laws relating to drunk driving.

We shall need, therefore, to examine those changes in some detail. Indeed, the changes are ongoing. Some of the substance and much of the terminology applicable in this case have been changed by legislation enacted in the 2001 Session of the General Assembly. See 2001 Md. Laws, ch. 5.

We shall note those recent changes where pertinent. The Jury Instruction (A) Whether Driving While Intoxicated Per Se Is A Separate Offense At the time relevant to this case, Maryland Code, § 21-902(a) and (b) of the Transportation Article, provided as follows: “(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.” Section 11-127.1 of the Transportation Article defined the term “intoxicated per se” as “having an alcohol concentration at the time of testing of 0.10 or more as measured by grams of ⁵¹⁷ alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” 1 Meanor regards § 21 — 902(a)(1) and (2) as creating two separate offenses. Though acknowledging that, by virtue of the definition in § 11-127.1, evidence of a BAC of 0.10 or more would suffice, on its own, to justify a conviction of driving while intoxicated per se under § 21-902(a)(2), he urges that such a BAC would not be conclusive with respect to § 21-902(a)(1) — that it is possible for a person to have a BAC of 0.10 or more and not have his normal coordination substantially impaired by alcohol. Because, in his view, he was never properly charged with a violation of § 21-902(a)(2), the court’s instruction informing the jury that a BAC of 0.10 or more would render him intoxicated created an impermissible per se test for the § 21-902(a)(l) offense and was therefore erroneous as a matter of law.

The State’s view is that § 21-902(a)(l) and (2) are not separate offenses. It contends that there was but one offense of driving (or attempting to drive) while intoxicated, which may be proved either by showing a BAC of 0.10 or more or by other evidence indicating coordination substantially impaired by alcohol. The Court of Special Appeals adopted the State’s view, holding that § 21-902(a)(2) simply “provide[s] a method of convicting an accused of driving while intoxicated by a reduced ‘grade of proof.’ ” Meanor v. State, supra, 134 Md.App. at 81 , 758 A.2d at 1129 . The legislative history of ⁵¹⁸ § 21-902(a)(2) establishes rather conclusively the fallacy in the State’s position.

Prior to 1995, § 21-902(a) prohibited a person from driving or attempting to drive a vehicle while intoxicated, and § 21-902(b) prohibited a person from driving or attempting to drive while under the influence of alcohol. Neither term — intoxicated or under the influence — was legislatively defined, and neither had been judicially defined by us for purposes of § 21-902. In Clay v. State, 211 Md. 577, 584 , 128 A.2d 634, 638 (1957), we defined “under the influence of alcohol,” for purposes of the manslaughter by automobile statute, as “drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication.” (Emphasis added). In Alston v. Forsythe, 226 Md. 121, 132 , 172 A.2d 474, 479 (1961), we applied that definition in a civil action for negligence arising out of an automobile accident.

The pattern jury instruction drafted by the Maryland State Bar Association Standing Committee on Pattern Jury Instructions (MPJI-Cr 4:10), which is often used by the trial courts and was used in this case, not only makes clear that the distinction between the two states is one of degree but provides what seems to us a better definition of “under the influence” and a workable and reasonable distinction between that and intoxication. It states: “The distinction between driving while intoxicated and driving under the influence of alcohol is one of degree. A person is under the influence of alcohol when the alcohol that [he][she] has consumed has impaired normal coordination, although not amounting to intoxication. Another way of saying this is that the person’s abilities have been reduced or weakened by the consumption of alcohol.

Intoxication means more than being under the influence of alcohol. A person is intoxicated when the alcohol that ⁵¹⁹ [he] [she] has consumed has substantially impaired normal coordination.” Under the pre-1995 law, evidence regarding the existence of either state came predominantly from the observations of arresting officers or other witnesses regarding the defendant’s appearance and conduct, how well he or she performed on field sobriety tests, and presumptions established by § 10-307 of the Courts and Judicial Proceedings Article. That section, which was part of the law dealing with chemical tests for BAC, provided that (1) if the test showed a BAC of 0.05 or less, it was to be presumed in a prosecution under § 21-902 that the person was not driving under the influence of alcohol; (2) if the test showed a BAC of more than 0.05 but less than 0.07, that fact gave rise to no presumption, one way or the other, of driving under the influence or while intoxicated but could be considered along with other evidence; (3) a BAC test result of 0.07 or more constituted prima facie evidence that the defendant was driving under the influence of alcohol; and (4) a BAC test result of 0.10 or more was prima facie evidence that the defendant was intoxicated. It was also the case under that regime, pursuant to § 16-205.1 of the Transportation Article, that MVA was required to suspend a person’s driver’s license for certain periods of time — 60 days to 6 months for a first offense, 120 days to one year for a subsequent offense — if the defendant refused to take the test, unless the defendant was required to drive a vehicle in his/her employment, needed a license to attend an alcoholic treatment or prevention program, or because of an unavailability of alternative means of transportation, the lack of a license would severely impair the defendant’s ability to earn a living.

In those circumstances, MVA could modify the otherwise mandated suspension. Although MVA could revoke a driver’s license upon the licensee’s conviction for driving while intoxicated or under the influence of alcohol, there was no provision for an administrative sanction based solely on a BAC test result. In 1988, concerned over the carnage caused by drunk and ⁵²⁰ drugged drivers, 2 the General Assembly, by House Joint Resolution 53 (1988), created a Task Force on Drunk and Drugged Driving, for the purpose, among others, of examining methods of increasing the remedies then available for combating drunk and drugged driving and recommending changes in the laws and regulations dealing with that problem. At its first meeting, the Task Force placed at the top of the list of issues to be considered two forms of per se remedies — an administrative per se law that would provide for the suspension of the license of a driver whose BAC exceeded a certain standard, and a criminal per se law that would establish a certain BAC level and make a breath test result in excess of that level “dispositive of guilt.” See Task Force on Drunk and Drugged Driving Minutes, September 13,1988, at 1.

Those issues tended to predominate much of the work of the Task Force during the Fall of 1988, in part, perhaps, because of incentives/sanctions from the Federal Government. 23 U.S.C. § 408 authorized Federal grants to the States for alcohol safety programs provided the State met certain conditions set forth in the statute, one of which was that any person with a BAC of 0.10 or greater when driving a motor vehicle “shall be deemed to be driving while intoxicated.” § 408(e)(1)(C). Evidence was presented that 44 States and the District of Columbia had enacted a criminal per se law with 0.10 or less as the standard and 23 States had enacted an administrative per se law. Although most of the discussion centered on the administrative per se recommendation and how such a law would be implemented, a question was raised about how a criminal per se law would operate in relation to the existing offenses. Judge Garmer, a member of the Task Force who was then a District Court judge, asked whether, “under an illegal per se law, a person would be charged under both the per se and DWI offense,” and the reply, from the State’s Attorney member of the Task Force, was that “this ⁵²¹ would be the case.” See Task Force on Drunk and Drugged Driving Minutes, October 25,1988 at 4.

This view — that a criminal per se law would be a new, separate offense that could be charged in addition to the existing driving while intoxicated or driving under the influence offenses — was made crystal clear in the Task Force’s 1988 Interim Report to the General Assembly. Although the Task Force urged the immediate enactment of an administrative per se law and recommended deferring consideration of a criminal per se law until after the antiquated breathalyzer machines then being used were replaced by more modern and reliable equipment, 3 it described the criminal per se proposal thusly: “An illegal per se statute would establish a new criminal offense of operating a motor vehicle with an alcohol concentration in the driver’s blood that meets or exceeds a certain statutorily defined limit. It is not necessary under an illegal per se law to prove that a driver was intoxicated or under the influence of alcohol. All that is necessary is to prove that the individual was operating a motor vehicle with more than a certain amount of alcohol in the individual’s blood.

An illegal per se law would not replace the current prohibitions, but would supplement them. For example, if an individual’s BAC test revealed a BAC level at or above 0.10, the individual could be charged with 2 separate violations; i.e., driving while intoxicated/under the influence, and the separate per se offense. If intoxication or being under the influence cannot be proved, for example, due to insufficient physical and behavioral evidence, the objective result of the BAC test alone, unless successfully challenged (e.g., lack of ⁵²² probable cause, testing error, etc.) would be sufficient to convict the individual of the per se offense.” 1988 Interim Report of the Task Force on Drunk and Drugged Driving at 15,16-17 (emphasis added). In furtherance of the Task Force’s recommendation, the General Assembly enacted an administrative per se law at its next session.

See 1989 Md. Laws, ch. 284. Bills to create a criminal per se law failed in the 1993 and 1994 sessions but one finally was enacted in 1995. See 1995 Md. Laws, ch. 498, enacting Senate Bill 256. Both the manner in which the law was drafted and the reports issued by the Senate and House Committees that considered the bill confirm beyond cavil that the new per se offense was intended to be a separate criminal offense and not merely an easier way of proving the existing offenses.

If all that was intended was an easier way of proving intoxication or driving under the influence, as the State posits, the Legislature could simply have added that provision to § 10-307 of the Courts and Judicial Proceedings Article, which already set forth the evidentiary effects of BAC test results. Indeed, it did amend § 10-307 in the same bill, but only to conform it to the new offense. It repealed that part of § 10-307 that made a test result of 0.10 or more “prima facie evidence” that the defendant was driving while intoxicated. Instead of addressing the issue in § 10-307, the Legislature split § 21-902(a), which created the offense of driving while intoxicated, to establish a separate prohibition against driving with a BAC of 0.10 or more. 4 The Committee and Floor Reports well document the legislative intent.

Both the Senate ⁵²³ Judicial Proceedings Committee and the House Judiciary Committee Bill Analysis state, at the outset, that “[t]he bill makes it a misdemeanor for a person to drive or attempt to drive any vehicle while the person has an alcohol concentration of 0.10 or more,” and that it “imposes the same penalties for this offense as are currently imposed on a person who is convicted of driving while intoxicated.” See Senate Judicial Proceedings Committee Bill Analysis and House Judiciary Committee Bill Analysis on Senate Bill 256 (1995) at 1. 5 Further evidence that the General Assembly intended driving while intoxicated per se to be a separate offense is found in the fact that, in other sections of the Transportation Article that refer to, or use as a base, violations of § 21-902, it has stated the intoxication and intoxication per se offenses separately. See, for example, § 16-205(a)(1), permitting MVA to revoke the driver’s license of any person who “[i]s convicted under § 21-902(a) or (d) of this article of driving or attempting to drive a motor vehicle while intoxicated, while intoxicated per se, or while under the influence of a controlled dangerous substance.” See also § 26-405, providing that, if a person is charged “with a violation of ... § 21-902 of this article (‘Driving while intoxicated, while intoxicated per se, under the influence of alcohol . . . ), the court may find him guilty of any lesser included offense under any subsection of the respective section.” Finally, it is clear from the elements of the offenses themselves that they are not the same. Driving while intoxi ⁵²⁴ cated does not require proof of any particular BAC, but it does require proof of a substantial impairment of normal coordination; driving while intoxicated per se, on the other hand, requires proof of a BAC of at least 0.10 (now 0.08) but does not require proof of any impairment of normal coordination. Ignoring all of this clear and abundant evidence of legislative intent, which is dispositive of the issue, the State looks to decisions in some other States to support its view that § 21-902(a)(2) creates no more than a reduced evidentiary burden for proving intoxication.

Not only do the cases it cites not support its position, but the predominant view around the country is exactly to the contrary. State v. Gonzales, 26 S.W.3d 919 (Tex.App.2000) is cited for the proposition that the State may prove intoxication “by reason of loss of faculties or by reason of alcohol concentration (intoxication per se),” and State v. Edmondson, 125 Idaho 132 , 867 P.2d 1006 (App.1994) is cited for a similar proposition. What the State omits to mention, however, is that the Texas and Idaho statutes, unlike that of Maryland, appeared to define intoxication in that alternative manner. As the Gonzales court pointed out, the statute defined “intoxicated” as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol or other proscribed substance into the body, or as having an alcohol concentration of 0.10 or more.” Gonzales, 26 S.W.3d at 920 (emphasis added).

When the trial court dismissed a prosecution because the BAC was less than 0.10, the appellate court reversed, holding that the State could also prove intoxication by showing the impairment of mental or physical faculties. In Edmondson , the State expressly limited the prosecution to a showing that the defendant drove with a BAC in excess of 0.10, which, under the Idaho statute, was one of two alternative methods of proving the offense of driving under the influence of