Brown v. State, 2273 September Term 2005.

Decision Date01 November 2006
Docket NumberNo. 2273 September Term 2005.,2273 September Term 2005.
Citation171 Md. App. 489,910 A.2d 571
PartiesMichael E. BROWN v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

C. William Michaels, Baltimore, David M. Williams, Chestertown, for appellant.

Brian S. Kleinbord (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.



This appeal presents us with the opportunity to decide, among other matters, the constitutional effect of the evidentiary "presumptions" concerning blood alcohol concentration, set forth in Maryland Code (2002 Repl.Vol., 2004 Cum Supp.), § 10-307 of the Courts and Judicial Proceedings Article ("CJ"). CJ § 10-307 provides, inter alia, that a specified level of alcohol concentration in an accused's breath or blood "shall be prima facie evidence" that the accused was driving while impaired by alcohol or under the influence of alcohol. The question we decide is whether that evidentiary device constitutes a mandatory presumption that violates the accused's due process right to be convicted only upon the State's proof of every element of the offense beyond a reasonable doubt, or whether, instead, the device is merely a permissive inference that allows, but does not require, the trier of fact to find the existence of an element that the State must prove. We shall hold that CJ § 10-307 sets forth a permissive inference and therefore does not offend due process.

Appellant Michael E. Brown stands convicted of driving while under the influence of alcohol, in violation of Maryland Code (1977, 2002 Repl.Vol., 2004 Cum.Supp.), § 21-902(a)(1) of the Transportation Article ("Transp.").1 He presents eight questions for our consideration, which we have consolidated and reordered:

I. Do the evidentiary presumptions set forth in CJ § 10-307 comport with due process?

II. Is CJ § 10-303(a)(3), which permits the use of a breath test within a certain time frame after being "apprehended," unconstitutionally vague?

III. Did the trial court correctly conclude that the police officer performed a lawful traffic stop of Mr. Brown?

IV. Did the trial court correctly conclude that the field sobriety tests conducted by the police officer comported with the Fourth Amendment and Article 26 of the Maryland Declaration of Rights?

V. Was the police officer who administered the field sobriety tests required to inform Mr. Brown of his Miranda rights under the Fifth Amendment and Article 22 of the Maryland Declaration of Rights?

For the reasons that follow, we affirm the judgment.


On the morning of May 15, 2005, at approximately 2:20 a.m., a Jeep Grand Cherokee collided with the rear of a vehicle that was stopped at a red traffic signal in a northbound lane at the intersection of 48th Street and Coastal Highway, in Ocean City, Maryland. Also stopped at the intersection, but in a southbound lane of Coastal Highway, was a marked police vehicle in which Officer Douglas Smith, a member of the traffic safety unit of the Ocean City Police Department, and Officer Dagstani were riding.

Officer Smith, who was driving the police vehicle, saw the collision and heard it cause a "loud" noise. He watched the drivers of the two vehicles leave their vehicles and speak briefly, then return to their vehicles when the light turned green and continue north on Coastal Highway.

Officer Smith made a U-turn and followed the two vehicles as they headed north. The Grand Cherokee turned east on 51st Street, while the other vehicle continued northbound. Officer Smith immediately activated his emergency lights and stopped the other vehicle at 52nd Street and Coastal Highway. Officer Smith left Officer Dagstani to speak with the driver of that vehicle. Officer Smith then turned off his emergency lights and drove back to 51st Street, where he found the Grand Cherokee parked with the engine still running.

As Officer Smith pulled behind the Grand Cherokee, the driver, Mr. Brown, turned off its engine. Officer Smith got out of his vehicle and approached the Grand Cherokee, asked Mr. Brown for his license and registration, and began questioning him about the collision. At that time, Officer Smith noted the "strong odor of an alcoholic beverage on [Mr. Brown's] breath and person," and saw that his "eyes were glassy and bloodshot." Evidently, at some point during that exchange, Mr. Brown handed Officer Smith his identification card, but not the vehicle's registration. When asked again for the registration, Mr. Brown handed Officer Smith his insurance card. Officer Smith returned the card to Mr. Brown and again asked him for the registration card. Officer Smith noticed that, as Mr. Brown was "flipping through papers, he had passed over his registration card a couple times."

Sometime during the stop (it is not clear from the record precisely when), Officer Smith attempted to run a license check but received no response from the Delaware Motor Vehicle Administration. He asked Mr. Brown the status of his license and Mr. Brown stated that "he had lost his license for a DWI" two years prior. Also sometime during the stop, Officer Dagstani radioed Officer Smith to advise that the driver of the other vehicle did not wish to file an accident report.

Officer Smith asked Mr. Brown to exit the vehicle. Mr. Brown "staggered out of the vehicle" whereupon Officer Smith asked him about his consumption of alcohol during that evening. He responded that "he had two mixed alcoholic beverages while at Seacrets," a bar located at 49th Street in Ocean City. Mr. Brown told Officer Smith that he had gone to Seacrets at 10:30 p.m. and had his last drink at 1:00 a.m.

Based upon his observations, Officer Smith administered several field sobriety tests. He asked Mr. Brown to count backward from seventy-five to fifty-seven and to recite the alphabet from "D to T." Officer Smith noted that Mr. Brown's speech was slurred as he performed the latter test. Officer Smith then administered the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. Officer Smith found that Mr. Brown displayed a "lack of smooth pursuit in both his left and right eye," was unable to maintain heel-to-toe position, and was unable to follow all of the instructions.

Officer Smith then placed Mr. Brown under arrest for driving under the influence of alcohol. He was transported to the police station on 65th Street and Coastal Highway, where he was advised of his chemical test rights under form DR-15.2 He agreed to take a breathalyzer test, the results of which showed his blood alcohol concentration ("BAC") to be 0.18 at the time of testing. The record does not reflect when the test was conducted.

Before trial, Mr. Brown filed a motion to suppress the evidence that the police obtained as a result of the stop. He argued that there were no articulable facts to support the stop; the field sobriety tests were unlawful because (1) the officer did not have probable cause to believe that he had operated the motor vehicle while under the influence or impaired by alcohol and (2) he was not advised of and did not waive his Miranda3 rights; and his arrest was not supported by probable cause.4

Because the case proceeded as a bench trial, the court took evidence on the motion to suppress during the State's case in chief. Upon hearing Officer Smith's testimony, the substance of which we have recounted above, the court heard Mr. Brown's argument on the motion and denied it. The court ruled that the initial stop was supported not merely by reasonable suspicion but by full probable cause that Mr. Brown had committed one or more traffic offenses. The court ruled, in pertinent part:

Well, there's more than an abundance of probable cause for him to stop this vehicle. The officer saw the accident occur. Whether the other person that was involved, the other — the other person in the other vehicle that was involved wanted to pursue it or not civilly has no bearing whatsoever. It could have some bearing, but the fact that he didn't wouldn't preclude the officer from stopping the vehicle. He saw the accident happen. He certainly would have charged him with numerous charges including negligent driving, failure to reduce speed to avoid a collision. So he, certainly on those grounds, had the reason to approach him.

And the officer, testified that he had his lights on. The — your client pulled off the highway onto a side street once the officer put his lights on. And he'd just had an accident at the time that the bars are closing, so he was concerned about whether in fact he'd had too much to drink. So there's certainly probable cause based on those facts also.

The court also found that "there was more than sufficient probable cause for . . . the officer to ask him to do the [field sobriety] tests, and upon his performance on the tests, there was probable cause to arrest." Finally, with respect to Mr. Brown's claim that Miranda warnings were required to be given and the rights thereunder waived before the field sobriety tests could be conducted, the court found that Officer Smith was "performing a traffic investigation" and "there's an abundance of authority that he does have the right to ask him questions without Miranda warnings."

Also before trial, Mr. Brown filed a "Motion in Limine to Preclude the Government From Relying on Unconstitutional Evidentiary Presumption Contained in Courts and Judicial Proceedings Article § 10-307." He argued that the statute allowed the State to rely upon evidentiary presumptions that relieved the State of its burden to prove every element of the offense beyond a reasonable doubt, in violation of due process. He also challenged CJ § 10-303(a)(2), which provides that, "[f]or the purpose of a test for determining alcohol concentration, the specimen of breath or...

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