Tereshuk v. State

WILNER, Judge. In 1981, the Legislature made substantial changes in the drunk driving laws. In so doing, it changed some of the terminology used in Transportation article, §§ 21-902(b) and 27-101(f). Prior to the change, § 21-902(b) read as follows: “A person may not drive or attempt to drive any vehicle while his driving ability is impaired by the consumption of alcohol.” (Emphasis added.) Section 27-101(f) provided a fine of up to $500, imprisonment up to one year, or both “for any person who [was] convicted of a second or subsequent violation of ... § 21-902(b) of this article [‘Driving while ability impaired by alcohol’]____” The 1981 legislation repealed and reenacted with amendments those provisions — §§ 21-902 and 27-101.

See 1981 Laws of Maryland, ch. 242. As a result, § 21-902(b) was changed to provide that “[a] person may not drive or attempt to drive any vehicle while under the influence of alcohol.” (Emphasis added.) Consistent with this change, § 27-101(f) was amended to provide the enhanced penalty for “[a]ny person who is convicted of ... a second or subsequent violation of ... § 21-902(b) of this article (‘Driving while under the influence of alcohol’)....” The only change in § 27-101(f) was the inclusion of the new terminology used in § 21-902(b). ¹⁹⁵ In this appeal, we consider the issue mentioned but not addressed in Kursch v. State, 55 Md.App. 103, 106 , 460 A.2d 639 (1983): Whether a person convicted of “Driving while under the influence of alcohol,” Transp. art., § 21-902(b), can be sentenced as a “second or subsequent offender” under § 27-101(f) when the repeat offender treatment is based on prior convictions for “Driving while ability impaired by alcohol” (former § 21-902(b)). On July 4, 1984, appellant was arrested for “Driving while intoxicated.” Transp. art., § 21-902(a). He submitted to a breathalyzer test, which measures an individual’s blood alcohol content, and registered a .15 — two percentage points above the blood alcohol content level considered prima facie evidence of intoxication.

Courts art., § 10-307(e). Appellant initially requested a jury trial, and as a result his case was removed from the District Court for Montgomery County and docketed in the Circuit Court. In a letter dated August 20, 1984, the State informed appellant that it intended to treat him as a “subsequent offender” pursuant to Transp. art., § 27 — 101(f) because of his two prior convictions for driving while impaired — December 13, 1977 and July 6, 1978. Before the scheduled trial date, the State and appellant reached a plea arrangement: the State among other things agreed to amend its charging document to allege “Driving while under the influence of alcohol” (Transp. art., § 21-902(b)) — a lesser offense than “Driving while intoxicated” (§ 21-902(a)) — and, appellant, for his part, agreed to plead guilty to the amended charge.

During a hearing on January 2, 1985, in which the court provisionally accepted appellant’s guilty plea on the agreed-upon conditions, appellant argued that he could not be sentenced as a “subsequent offender” under § 27-101(f) because he had not been previously convicted of “Driving while under the influence of alcohol. ” (Emphasis added.) On May 9, 1985, the court held that his prior convictions for driving “while his driving ability [was] impaired by the ¹⁹⁶ consumption of alcohol” brought him within the purview of the “subsequent offender” provision (§ 27 — 101(f)). It sentenced him to one year but suspended execution of all except 60 days of the sentence, in favor of two years’ supervised probation. Pursuant to Courts art., § 12-302(e) and Rule 1096, appellant made application for leave to appeal the judgment entered upon his guilty plea, which we granted. He presses his claim that he cannot be treated as a subsequent offender based on his prior convictions for driving while “impaired,” arguing that: (1) The “subsequent offender” statute (§ 27-101(f)) expressly provides that a second or subsequent conviction for “Driving while under the influence of alcohol” is required and because that offense has only existed since July 1, 1981, his prior convictions for driving while impaired cannot serve as the predicate offense; (2) The legislative history demonstrates that “Driving while under the influence of alcohol” and “Driving while ability impaired by alcohol” are not interchangeable terms; (3) The plain language and due process considerations preclude subsequent offender treatment; and (4) A review of comparable statutes demonstrates that the Legislature knows how to provide enhanced punishment in a variety of situations but did not do so here.

We hold that appellant was properly sentenced as a subsequent offender under § 27-101(f) and therefore shall affirm. The cardinal rule of statutory construction is to ascertain and effectuate the actual legislative intent. Reid v. State, 302 Md. 811, 816 , 490 A.2d 1289 (1985); Willis v. State, 302 Md. 363, 374 , 488 A.2d 171 (1985); Hawkins v. State, 302 Md. 143, 147 , 486 A.2d 179 (1985). In this pursuit, the principal source for determining that intent is the language ¹⁹⁷ of the statute itself.

If that language is unambiguous,