Motor Vehicle Administration v. Vermeersch

PER CURIAM. The issue here presented is whether a person who refused to take a test of his breath to determine alcohol concentration may avoid the mandatory sanctions prescribed by Maryland’s Implied Consent Statute by subsequently tak ¹⁹⁰ ing a blood test and permitting the results of that test to be used against him at a trial for driving while intoxicated or under the influence of alcohol. We shall hold that he or she may not. Having stopped the respondent, James R. Vermeersch, on probable cause and having reasonable grounds to believe that he was driving while intoxicated or under the influence of alcohol, Maryland State Trooper Christopher E. Finn detained him and asked that he submit to a breath test for alcohol concentration.

Maryland Code (1977, 1992 Repl.Vol.) § 16-205.1(b)(2)(i) and (ii) of the Transportation Article. As he was required to do, the trooper also advised the respondent “of the administrative sanctions that shall be imposed for refusal to take the test and for test results indicating an alcohol concentration of 0.10 or more at the time of testing,” § 16-205.-l(b)(2)(iii); Motor Vehicle Administration v. Chamberlain, 326 Md. 306, 316-17 , 604 A.2d 919, 923-24 (1992), i.e., the consequences of refusal as enumerated in subsection (b)(1): for a refusal to take the test, the Administration shall suspend the driver’s license for 120 days or one year, depending upon whether it is a first or subsequent offense, and for failing the test, i.e., the results reflect an alcohol concentration of 0.10 or more, it shall suspend the driver’s license for 45 days or 90 days, again depending upon whether it is a first or subsequent offense. Id. at 316 , 604 A.2d at 923-924 . The respondent refused the test and requested a hearing to show cause why his license should not be suspended for doing so. 1 The respondent conceded at the show cause hearing that, when stopped by Trooper Finn, he had consumed alcohol, that ¹⁹¹ Trooper Finn advised him of the administrative sanctions for refusing to take a breath test, and that he refused to take the breath test.

See § 16-205.1(b)(7)(i). He maintained, nevertheless, that he substantially complied with the Maryland Implied Consent Statute. The respondent proffered, through counsel, that, after refusing the breath test, he subsequently took, within minutes after the expiration of the two hour time period prescribed for alcohol concentration testing, see Maryland Code (1974, 1989 Repl.Vol., 1992 Cum.Supp.) § 10-303(a)(2) of the Courts and Judicial Proceedings Article, 2 a blood test for alcohol concentration. The results of that test, the respondent points out, were used at his trial for driving while intoxicated or under the influence of alcohol and contributed to his conviction of the latter offense.

Neither at the administrative hearing nor at the circuit court were records of the blood test, including the results, offered in evidence. The administrative law judge rejected the substantial compliance argument and ordered the respondent’s driver’s license suspended for 120 days pursuant to section 16—205.1(b)(1). The Circuit Court for Cecil County reversed. It found that the respondent had substantially complied with the Implied Consent Statute, noting that “as a practical matter [the respondent] did what needed to be done, and it was used by the court to convict him, and in fairness he shouldn’t be punished for that.” The court also said: I may be wrong, technically wrong, but I think, just as an important part of my job up here is to see that the technical part of the law is obeyed, it’s important to see that something’s done that’s fair.

The State certainly was not prejudiced by this. The blood test, although not the way it was supposed to be done, is accurate. It comes within the exception, but it’s still accurate. The State was able to use it, and did use it in ¹⁹² rendering a fair decision in the District Court, and I think it’s just as fair that it’s going to be used with the other.

You know, every rule has its exceptions, and to me fairness is one of the exceptions, when it’s possible. I’m just going to rule that he complied, took the test. I’m going to reverse the decision of the DMV. The Motor Vehicle Administration filed a petition for certiorari, which we granted.

We now summarily reverse the judgment of the circuit court. What is penalized by section 16-205.1(b) of the Maryland Implied Consent Statute is the failure or refusal to take the test for alcohol concentration prescribed by section 10-305 of the Courts & Judicial Proceedings Article and regulated by sections 10-303 and 10-304 of that same article. See § 16-205.1(a)(2). Section 10-305 provides: (a) Alcohol content.—The type of test administered to the defendant to determine alcohol concentration shall be the test of breath except that the test of blood shall be the type of test administered if: (1) The defendant is unconscious or otherwise incapable of refusing to take a test to determine alcohol concentration; (2) Injuries to the defendant require removal of the defendant to a medical facility; or (3) The equipment for administering the test of breath is not available.

The specimen of breath or blood, for purposes of measuring alcohol concentration, is