Dejarnette v. State

• Decision Date: 25 March 2022
• Docket Number: 41-2021
• Parties: ALEXANDER DEJARNETTE v. STATE OF MARYLAND
• Court: Maryland Court of Appeals

ALEXANDER DEJARNETTE
v.
STATE OF MARYLAND

No. 41-2021

Court of Appeals of Maryland

March 25, 2022

Argued: February 8, 2022

Circuit Court for Somerset County Case No. C-19-CR-19-000156

Getty, C.J. ^[*] McDonald Watts Hotten Booth Biran Harrell, Jr., Glenn T. (Senior Judge, Specially Assigned), JJ.

OPINION

Watts, J.

In Maryland, when a law enforcement officer has reason to believe that the driver of a motor vehicle is under the influence of alcohol, the officer may ask the driver to take a breath test. Under Md. Code Ann., Transp. (1977, 2012 Repl. Vol., 2018 Supp.) ("TR") § 16-205.1, sometimes called "the implied consent, administrative per se law[, ]" a driver is deemed to have consented to take a breath test to determine alcohol concentration if stopped by a law enforcement officer with reasonable grounds to believe that the person has been driving under the influence of alcohol. Motor Vehicle Admin. v. Deering, 438 Md. 611, 612, 615, 92 A.3d 495, 496, 498 (2014) (internal quotation marks omitted). There are regulations governing the procedures for administering a breath test for alcohol. See Code of Maryland Regulations ("COMAR") 10.35.02.08.^[1] Among other things, COMAR 10.35.02.08G provides that an individual who is to be given a breath test must be observed for at least twenty minutes before the sample is taken. The purpose of the observation period is to help ensure that the individual does not engage in behavior that could potentially skew the results of the test, either higher or lower than they should be.

In this case, the State, Respondent, charged Alexander Dejarnette, Petitioner, with four counts related to driving under the influence of alcohol-namely, negligent driving, driving under the influence of alcohol, driving under the influence of alcohol per se, and driving while impaired. Prior to trial in the Circuit Court for Somerset County, Dejarnette filed a motion in limine to exclude the results of a breath test, arguing that the twenty-

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minute observation period set forth in COMAR 10.35.02.08G had not been complied with. At the end of a motions hearing, the circuit court denied the motion. A jury acquitted Dejarnette of negligent driving and driving under the influence of alcohol, but convicted him of driving under the influence of alcohol per se and driving while impaired by alcohol. The circuit court sentenced Dejarnette to one year of imprisonment, with all but ten days suspended, and one year of supervised probation, and ordered him to pay a $250 fine and $145 in court costs. Dejarnette appealed, contending that the circuit court erred in admitting the results of the breath test. The Court of Special Appeals held that the circuit court did not err and affirmed the circuit court's judgment. See Dejarnette v. State, 251 Md.App. 467, 469, 254 A.3d 524, 525 (2021). Dejarnette filed a petition for a writ of certiorari, which we granted. See Dejarnette v. State, 476 Md. 264, 261 A.3d 240 (2021).

In this case, we consider whether compliance with the twenty-minute observation period set forth in COMAR 10.35.02.08G is required for the results of a breath test to be admissible or whether alleged noncompliance with the observation period goes to the weight to be afforded the evidence by the trier of fact. We also consider whether the record in this case supports a finding that the officers complied with the observation period and whether the circuit court failed to make such a finding.

We hold that the plain language of the relevant statutes is clear and that the statutes do not provide that noncompliance with the twenty-minute observation period set forth in COMAR 10.35.02.08G results in the inadmissibility of evidence of breath test results. The COMAR regulation itself does not contain an exclusionary provision for alleged noncompliance with the observation period. We hold that the alleged compliance or

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noncompliance with the twenty-minute observation period goes to the weight to be given to breath test results, i.e., the weight of the evidence, not the admissibility. We also conclude that, in this case, the record supports a finding that the officers complied with the twenty-minute observation period. In addition, we determine that the circuit court made findings on the record that the officers complied with the twenty-minute observation period set forth in COMAR 10.35.02.08G.

BACKGROUND

In the early morning of April 6, 2019, Maryland State Police Trooper Derek Brown, who was on patrol, observed a vehicle move to the shoulder without using a signal and then jerk back into the lane in which it had been traveling. Trooper Brown saw the same vehicle again move completely onto the shoulder of the road and then jerk back into the lane in front of his car, which caused him to brake suddenly. At 1:59 a.m., Trooper Brown stopped the vehicle, which was being driven by Dejarnette. Immediately upon contact with Dejarnette, Trooper Brown smelled the odor of alcohol emanating from the vehicle and noticed that Dejarnette's eyes were bloodshot and glassy. Trooper Brown advised Dejarnette of the reason for the stop and asked him to step out of the vehicle to perform field sobriety tests. Trooper Brown smelled alcohol on Dejarnette's breath after he exited the vehicle. Dejarnette admitted to having had a couple of drinks hours earlier. Trooper Brown conducted field sobriety tests and determined that Dejarnette exhibited numerous signs of being under the influence of alcohol.

At 2:12 a.m., Trooper Brown arrested Dejarnette and transported him to Maryland State Police Barrack X in Princess Anne. Trooper Brown read the DR-15 Advice of Rights

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form^[2] to Dejarnette and at approximately 2:37 a.m., Dejarnette agreed to submit to an alcohol concentration test, i.e., a breath test. Another officer, Sergeant George Todd, administered the breath test. Dejarnette blew into the breathalyzer twice, at 2:43 a.m. and 2:45 a.m., forty-four and forty-six minutes, respectively, after Trooper Brown stopped his vehicle and thirty-one and thirty-three minutes, respectively, after he was arrested. Both times, the breath test detected an alcohol concentration of .094. Trooper Brown and Sergeant Todd signed and completed a "State of Maryland Notification to Defendant of Result of Test for Alcohol Concentration" form, which stated that Dejarnette was arrested at 2:12 a.m. on April 6, 2019, that the breath specimen was collected at 2:43 a.m. that morning, and that the breath specimen was found to contain an alcohol concentration of .09 grams of alcohol per 210 liters of breath.^[3]

Motion in Limine and Motions Hearing

Prior to trial, Dejarnette filed a motion in limine, seeking to exclude the results of the breath test, arguing that the officers did not comply with COMAR 10.35.02.08G, which requires a twenty-minute period of pre-test observation. Dejarnette argued that the failure to follow the requirements of the regulation called the validity of the breath test results into

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question and that the admission of the breath test results into evidence would violate due process.

On December 18, 2019, the circuit court held a hearing on the motion. The State called two witnesses, Trooper Brown, who conducted the traffic stop, and Sergeant Todd, who conducted the breath test. Trooper Brown testified that on April 6, 2019, he was working the night shift and at 1:59 a.m., he conducted a traffic stop of a vehicle that Dejarnette was driving. At 2:12 a.m., Trooper Brown arrested Dejarnette for suspected driving under the influence of alcohol. After the arrest, Trooper Brown searched Dejarnette's mouth and pockets. Trooper Brown cuffed Dejarnette's hands behind his back and placed him in the front passenger seat of the police car.

Trooper Brown testified that he and Dejarnette arrived at the barrack at 2:21 a.m. The two were met by Sergeant Todd, the duty officer at the barrack. Trooper Brown conducted another search of Dejarnette in Sergeant Todd's presence in the hallway of the barrack. Trooper Brown did not find anything in Dejarnette's mouth, and Trooper Brown testified that he would have placed anything found in Dejarnette's pockets in a bag. Trooper Brown then escorted Dejarnette to a processing room down the hall. Trooper Brown described the processing room as a small room, approximately eight or ten feet by twelve or fourteen feet, with a desk and two chairs.

Trooper Brown testified that, between 2:21 and 2:37 a.m., he and Dejarnette were together for the entire time. Dejarnette was not handcuffed while sitting in the processing room. Trooper Brown read the DR-15 Advice of Rights form to Dejarnette, while Sergeant Todd was in and out of the processing room. At approximately 2:37 a.m., Dejarnette

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agreed to submit to an alcohol concentration test. The breath test was given to Dejarnette by Sergeant Todd, in Trooper Brown's presence. The first result was at 2:43 a.m. and the second result was at 2:45 a.m. Trooper Brown testified that during the nine minutes between arresting Dejarnette and transporting him to the barrack, from 2:12 a.m. to 2:21 a.m., and while sitting "right next to" Dejarnette in the processing room at the barrack, Dejarnette did not have anything to eat or drink, did not put a mint in his mouth, and did not smoke, and that he did not hear or smell Dejarnette belch. Trooper Brown testified that he did not see Dejarnette make any hand movements while he was seated uncuffed in the processing room.

Sergeant Todd testified that on April 6, 2019, he was the duty officer at the barrack and performed the breath test with the intoximeter. Sergeant Todd testified that Trooper Brown brought Dejarnette into the barrack through the back door, where he met them. Sergeant Todd asked Dejarnette whether he had anything in his mouth and made Dejarnette open his mouth and stick out his tongue. Sergeant Todd looked in Dejarnette's mouth and watched as...