Warren v. State

BARBERA, J. This appeal requires us to interpret Maryland Code (1977, 2002 RepLVol.), § 21-801 of the Transportation Article. 1 We focus our attention in particular upon subsection (a) of § 21-801, which provides that “[a] person may not drive a vehicle on a highway at a speed that, with regard to the actual and potential dangers existing, is more than that which is reasonable and prudent under the conditions.” A jury in the Circuit Court for Montgomery County convicted appellant, Jon Patrick Warren, of violating § 21-801(a), and of driving while impaired (“DWI”), in violation of § 21-902(b). The State sought to prove that appellant had violated § 21-801 (a) by establishing that he drove 55 miles per hour (“mph”) in a 40-mph zone. The State sought to prove that appellant drove while impaired by relying on the lay opinion testimony of three police officers that he was “drunk,” “driving under the influence of alcohol,” and “highly impaired by alcohol.” Appellant attacks his conviction under § 21-801 (a), arguing that excessive speed does not come within the purview of that section, and that the State provided no evidence of the conduct that § 21-801 (a) does cover, %.e., failure to drive at a speed that is reasonable and prudent in light of existing conditions that create “actual and potential dangers.” Appellant attacks his DWI conviction on the ground that the court should not have permitted the officers’ lay opinion testimony. ¹⁵⁷ Because we agree with appellant that the evidence was legally insufficient to establish a violation of § 21-801(a), we shall reverse that conviction. We shall affirm appellant’s DWI conviction, finding no merit in his argument that the officers’ opinion testimony was inadmissible.

FACTS ' At approximately 10:30 p.m. on May 5, 2003, Officer John Kennedy, a ten-year veteran of the Montgomery County Police Department, was sitting in his marked patrol vehicle in the parking lot of the “On the Border” restaurant on Rockville Pike. The officer saw a man, later identified as appellant, approximately twenty yards away, walking away from the officer and heading toward a Ford Thunderbird. Officer Kennedy described appellant as “staggering across the parking lot with his shoulders slouched over, swaying, wobbly knees, you know, just very unsteady on his feet[.]” Although he fumbled with the keys, appellant eventually unlocked the driver’s side door. He got into the car, sat in the driver’s seat for about ten minutes, and repeatedly looked over at Officer Kennedy.

Appellant then got out of the car and “staggered, stumbling ... back into the bar[.]” Officer Kennedy left the area to perform his “regular patrol duties.” When he returned to the parking lot about two hours later, he noticed that the Thunderbird was still parked where he had last seen it. Because he thought that appellant had not looked “like he was in any condition ... to drive,” and had seemed “very intoxicated,” Officer Kennedy set up surveillance about 100 yards away from the car, on the opposite side of the street. Shortly thereafter, Officer Kennedy saw appellant drive the Thunderbird onto Rockville Pike. Officer Kennedy followed the car and a second officer, Officer Craig Cupiello, followed behind him.

Appellant made “a very wide turn” off of Rockville Pike onto Edmonston Drive, a two-lane road with parking on each side. He drove a little more than one-tenth of a mile “using ¹⁵⁸ the full width of the road[,] ... going from side to side, up the road.” Appellant then turned right onto Veirs Mill Road and rapidly accelerated, still drifting between lanes. Officer Kennedy “paced” appellant for approximately two-tenths of a mile, and determined that he was traveling 55 mph in a 40-mph zone. The officer activated his emergency lights, and appellant stopped his car.

Officer Kennedy approached the driver’s side door of the car, and “detected a strong odor of an alcoholic beverage.” The officer also noticed that appellant’s eyes were watery and bloodshot. When the officer asked appellant for his driver’s license, appellant removed his wallet from his pocket and fumbled through it, passing over the license several times. Appellant was mumbling and his speech was so “extremely slurred” that the officer could not understand what he was saying. At that time, Officer Kennedy told appellant to turn off the ignition and exit the car.

Appellant did not respond to the officer’s request. The officer asked him three more times and, each time, appellant failed to respond. Officer Kennedy testified that he feared for the safety of the citizens present in the area should appellant drive off. He therefore took out his Taser, pointed it at appellant, and told him that if he did not get out of the car, he was going to “get stunned.” Appellant still did not respond.

The officer then pushed his Taser, set to stun, against appellant’s shoulder. 2 Appellant released his grip on the steering wheel and Officer Kennedy “help[ed] him get out of the car.” Because appellant was very wobbly and unsteady on his feet, the officer leaned him against the car. The officer asked appellant to perform field sobriety tests, but appellant refused. Officer Kennedy placed appellant under arrest and transported him to the Rockville District station for processing. ¹⁵⁹ Appellant collapsed while walking up the steps of the station. Sergeant Tim Falcinelli assisted Officer Kennedy in taking appellant the rest of the way to the processing room.

Once they arrived, the officers asked appellant to take a breath test to determine his blood alcohol level, but appellant refused. After sitting at the processing table for about fifteen minutes, appellant “vomited all over the processing [room] floor.” Officer Kennedy opined, based on his training and personal experience, that appellant was “highly impaired by alcohol.” Officer Cupiello testified that after Officer Kennedy stopped appellant’s vehicle, he, Officer Cupiello, walked to the passenger’s side of appellant’s car. When appellant finally exited the vehicle, Officer Cupiello saw that appellant had “bloodshot, watery eyes,” and “an odor of an alcoholic beverage.” The officer observed that appellant seemed confused and incoherent. He opined that appellant was “driving under the influence of alcohol.” Sergeant Falcinelli testified that appellant was “drunk” when he came into the station house.

Appellant could not walk, “reeked” of alcohol, slurred his words, had “watery, red, [bloodshot] eyes,” and acted confused. He opined that appellant was “under the influence of alcohol.” Appellant testified in his defense. He said that he was on his way home from work when he stopped at a restaurant with two friends. He had one beer at the bar.

He was not feeling well, so he went outside to get some fresh air. He was not walking normally because of a foot injury. He testified that he sat in his car “[t]o get away from all the crowd, the noise, the smoke[, and] ... to clear [his] head a little bit.” After about ten minutes, he returned to the bar and attempted to have a second drink, but was not feeling well enough to finish it. Appellant testified that his driving on the evening in question was not inhibited by alcohol or otherwise inappropriate.

According to appellant, when Officer Kennedy stopped and approached his car, the officer immediately asked him to get ¹⁶⁰ out of it. Appellant asked the officer several times whether he wanted to see appellant’s license and registration, but the officer simply repeated “a couple of’ times his request for appellant to get out of the car. The officer then used his Taser without warning. Appellant explained that his subsequent behavior was the result of the Taser stun.

The jury convicted appellant of driving while impaired and driving in excess of a reasonable and prudent speed, and acquitted him of the charge of driving under the influence of alcohol. 3 The court sentenced appellant to 60 days’ imprisonment for driving while impaired, suspending all but 30 days, with 18 months’ supervised probation upon release. The court imposed a $75.00 fine for appellant’s conviction for driving in excess of a reasonable and prudent speed. Appellant noted this timely appeal, presenting the following questions for our review: I. Was the evidence sufficient to sustain appellant’s conviction for driving in excess of a reasonable and prudent speed?

II

Did the trial court abuse its discretion in admitting lay opinion testimony that appellant was “drunk,” “under the influence of alcohol,” and “highly impaired by alcohol”? DISCUSSION I. Appellant argues that there was insufficient evidence to sustain his conviction, under § 21-801 (a), for driving in excess of a reasonable and prudent speed. He acknowledges that there was evidence that he exceeded the posted speed limit, a violation of § 21-801.1. 4 He insists, however, there was no evidence of any “special danger” on the road, which, he ¹⁶¹ maintains, is necessary to sustain his conviction under § 21-801(a). We agree with appellant, and hold that, because the State presented no evidence of “actual and potential dangers” requiring him to reduce his speed to a reasonable and prudent level, the conviction under § 21-801(a) must be reversed.

Section 21-801, entitled “Basic rule,” provides: (a) Reasonableness and prudence required,.• — A person may not drive a vehicle on a highway at a speed that, with regard to the actual and potential dangers existing, is more than that which is reasonable and prudent under the conditions. (b) Driver to control speed. — At all times, the driver of a vehicle on a highway shall control the speed of the vehicle as necessary to avoid colliding with any person or any vehicle or other conveyance that, in compliance with legal requirements and the duty of all persons to use due care, is on or entering the highway. (c) Drivers to reduce speed in ceriain circumstances.— Consistent with the requirements of this section, the driver of a vehicle shall drive at an appropriate, reduced speed when approaching and crossing an intersection at which cross traffic is not required to stop by a traffic control device. (d) Approaching and crossing railroad grade crossings. — Consistent with the requirements of this section, the driver of a vehicle shall drive at an appropriate, reduced speed when approaching and crossing a railroad grade crossing.

(e) Approaching and going around curves. — Consistent with the requirements of this section, the driver of a vehicle shall drive at an appropriate, reduced speed when approaching and going around a curve. (f) Approaching crests of grades. — Consistent with the requirements of this section, the driver of a vehicle shall drive at an appropriate, reduced speed when approaching the crest of a grade. ¹⁶² (g) Traveling on narrow or winding roadways. — Consistent with the requirements of this section, the driver of a vehicle shall drive at an appropriate, reduced speed when traveling on any narrow or winding roadway. (h) Special dangers as to pedestrians or other traffic.— Consistent with the requirements of this section, the driver of a vehicle shall drive at an appropriate, reduced speed when any special danger exists as to pedestrians or other traffic or because of weather or highway conditions. The primary rule of statutory interpretation is to ascertain and effectuate legislative intent.

See, e.g., Pete v. State, 384 Md. 47, 57 , 862 A.2d 419 (2004). We begin the analysis by examining the plain language of the statute, “for the legislative intent of a statute primarily reveals itself through the statute’s very, words.” Price v. State, 378 Md. 378, 387 , 835 A.2d 1221 (2003) (citations omitted). We are cautioned not to add or delete language in a way that indicates an intent not reflected by the plain and unambiguous language of the statute. Pete, 384 Md. at 57 , 862 A.2d 419 . “[N]or may [we] construe the statute with forced or subtle interpretations that limit or extend its application.” Id. “Statutes on the same subject are to be read together and harmonized to the extent possible[.]” Id. at 65 , 862 A.2d 419 (citations and quotation marks omitted). “If the words of a statute are clear and unambiguous, our inquiry ordinarily ends and we need investigate no further, but simply apply the statute as it reads.” Gillespie v. State, 370 Md. 219, 222 , 804 A.2d 426 (2002).

Section 21-801 is located in subtitle 8 of the Transportation Article and is entitled “Speed Restrictions.” Subsection (a) of § 21-801 prohibits driving at a speed that is “more than that which is reasonable and prudent” under the prevailing circumstances. (Emphasis added.) What is “reasonable and prudent” is dictated by existing “conditions.” Subsections (c) through (h) set forth specific conditions requiring a reduced speed: when there is special danger to pedestrians or other traffic, poor weather conditions, and when approaching any of the following: an intersection at which traffic is not controlled ¹⁶³ by a traffic control device; a railroad crossing; a curve; a crest of a hill; or when traveling on a narrow or winding road. Subsections (a) and (b) are more general. Nonetheless, both of those subsections apply only when certain driving conditions prevail.

Subsection (a) refers to “actual and potential dangers” and prohibits driving under those “conditions” at a speed that is unreasonable or imprudent. Subsection (b) requires the driver to control the vehicle’s speed when a collision with a person or vehicle might occur. Read in its entirety, § 21-801 plainly requires drivers to reduce speed, from what otherwise would be a lawful maximum speed, to that which is reasonable or prudent in light of existing conditions that present an “actual or potential danger.” This construction of § 21-801 makes sense in light of, and is in harmony with, § 21-801.1. The latter section prohibits speed over a specified maximum speed limit.

The specified speed is governed by highway type (divided or undivided) and location (business, residential, or “other locations”). 5 Section ¹⁶⁴ 21-801.1(a) includes the caveat that the statutory maximum designated speed pertains, “[u]nless there is a special danger that requires a lower speed to comply with § 21-801 [.]” The State argues that this quoted language from § 21-801.1(a) applies to subsections (c)-(h) of § 21-801, but not to subsections (a) and (b). We disagree. Nothing in § 21-801.1(a) suggests such a limited reading of it. Moreover, the narrow interpretation advanced by the State does not make common sense.

And, if indeed the Maryland General Assembly intended the language in § 21-801.1(a) to apply only to § 21-801(c)-(h), it certainly knew how to make that clear. The State argues that excessive speed (in this case, driving 55 mph in a 40-mph zone) can create the “actual or potential danger” under § 21-801(a). Though