Krauss v. State
| Decision Date | 01 April 1991 |
| Docket Number | No. 42,42 |
| Citation | 322 Md. 376,587 A.2d 1102 |
| Parties | Frank Leroy KRAUSS v. STATE of Maryland. Sept. Term 1990. |
| Court | Maryland Court of Appeals |
Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.
Argued Nov. 7, 1990 before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.
Reargued Feb. 4, 1991 before ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals of Maryland (Retired, Specially Assigned), MARVIN H. SMITH, Judge of the Court of Appeals of Maryland (Retired, Specially Assigned), and RAYMOND G. THIEME, Jr., Circuit Administrative Judge of the Fifth Judicial Circuit of Maryland (Specially Assigned).
More than 50 percent of all highway fatalities in Maryland and the entire United States are alcohol related. The number killed on our nation's highways annually is equal to all Americans, approximately 50,000, killed over a ten year period in Vietnam.
The National Safety Council conservatively estimates that the economic loss to society for a single highway fatality is $200,000. The human and economic impact of these fatalities is catastrophic and affects all of society. The drinking driver brings personal grief and hardship to families and loved ones and affects everyone through increased costs for law enforcement, medical, corrections, rehabilitation, and social services.
From the foreword by Colonel W.T. Travers, Jr., then Superintendent of the Maryland State Police, to the "Maryland Driving While Intoxicated Manual" prepared by the Chemical Test for Alcohol Unit of his organization (1985).
From time to time, the General Assembly has enacted legislation in an effort to cope with the problem of the driver whose faculties have been impaired by the ingestion of alcoholic beverages. It has forbidden a person to drive any vehicle while intoxicated or while under the influence of alcohol. Maryland Code (1977, 1987 Repl.Vol.) § 21-902(a) and (b) of the Transportation Article (TR). 1 TR § 27-101(a) made it a crime to violate § 21-902(a) or (b), and various subsections of § 27-101 authorized sanctions of imprisonment, fine, and suspension or revocation of the privilege of operating a vehicle.
The Legislature has attempted to facilitate the prosecution of drunk drivers. TR 16-205.1(a) declares:
Any person who drives ... a motor vehicle on a highway ... is deemed to have consented, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a chemical test to determine the alcohol content of his blood if he should be detained on suspicion of driving ... while intoxicated, [or] while under the influence of alcohol, or in violation of an alcohol restriction.
The Legislature has designated two types of chemical breath tests to determine the alcohol content of the blood of a suspected drunk driver: a "preliminary breath test," and a test hereinafter called a "Breathalyzer test." The tests are administered at different times, employ different equipment, and serve different purposes.
The preliminary breath test was established by TR § 16-205.2(a). It provided:
A police officer who has reasonable grounds to believe that an individual is or has been driving or attempting to drive a motor vehicle while intoxicated or while under the influence of alcohol may, without making an arrest and prior to the issuance of a citation, request the individual to submit to a preliminary breath test to be administered by the officer....
"The results of the preliminary breath test," subsection (c) explains, "shall be used as a guide for the police officer in deciding whether an arrest should be made...." Although the results of the test "may be used as evidence by a defendant in a court action," they "may not be used as evidence by the State in any court action." Id. And, "[t]he taking of or refusal to submit to a preliminary breath test is not admissible in evidence in any court action," nor may "[a]ny evidence pertaining to a preliminary breath test ... be used in a civil action." Id. Furthermore, "[r]efusal to submit to a preliminary breath test shall not constitute a violation of [TR] § 16-205.1 ... and the taking of a preliminary breath test shall not relieve the individual of the obligation to take the test required under [TR] § 16-205.1 ... if requested to do so by the police officer." Subsection (d). Subsection (b) declares:
[N]either a refusal to take the test nor the taking of the test shall prevent or require a subsequent chemical test pursuant to TR § 16-205.1....
As we have seen, the consent clause of TR § 16-205.1 is subject to the provisions of Maryland Code (1977, 1989 Repl.Vol.) §§ 10-302 through 10-309 of the Courts and Judicial Proceedings Article (CJ). Those sections contain comprehensive and carefully structured provisions which apply to the Breathalyzer test. Section 10-302 prescribes:
In a prosecution for a violation of a law concerning a person who is driving ... a vehicle in violation of § 21-902 of the Transportation Article ..., a chemical test of his breath or blood may be administered to the person for the purpose of determining the alcohol content of his blood.
Succeeding sections deal with the time within which the test must be taken; the qualifications of the person administering the test and the equipment to be used; the type of test administered; the admissibility of test results without the presence or testimony of the technician; the results of analysis and presumptions; limitations on other evidence of intoxication and driving under the influence; and refusal to submit to the test.
Ordinarily, a person "may not be compelled to submit to a chemical analysis," and, in any event, "[e]vidence of chemical analysis is not admissible in a prosecution for a violation of § 21-902 of the Transportation Article if obtained contrary to its provisions." CJ § 10-309(a).
The fact of refusal is admissible in evidence at the trial.
Id. But:
No inference or presumption concerning either guilt or innocence arises because of refusal to submit.
With respect to the person who may administer a preliminary breath test, TR § 16-205.2(a) speaks in terms of "the officer" who stops a driver. With respect to the Breathalyzer test, CJ § 10-304(b) requires that the test "be administered by a qualified person." CJ § 10-304(a)(3) explains that a "qualified person"
means a person who has received training in the use of the equipment in a training program approved by the toxicologist under the Postmortem Examiners Commission and who is either a police officer, a police employee, or an employee of the office of the Chief Medical Examiner. 2
The equipment used to administer both the preliminary breath test and the Breathalyzer test must be approved by the State toxicologist. See TR § 16-205.2(a) as to the preliminary breath test and CJ § 10-304(b) as to the Breathalyzer test.
The toxicologist, pursuant to the responsibility directed to him under CJ § 10-304, has issued regulations. The regulations address the training and certification of personnel performing tests of breath and blood for the purpose of determining the alcohol content in the body of drivers suspected of driving while under the influence of beverages containing alcohol and pertain to the approval and certification of equipment used in conducting such tests. See Regulations of the Toxicologist, Office of the Chief Medical Examiner, Post Mortem Examiners Commission, State of Maryland, Regarding [Tests of] Breath and Blood for Alcohol, effective 1 April 1983. The regulations are included as Appendix O to the Maryland DWI Manual, prepared by the Chemical Test for Alcohol Unit, Crime Laboratory Division of the Maryland State Police (1985). The 1983 regulations were revised effective 1 January 1990, superseding any previous regulations. The Maryland State Law Library has a copy of the 1983 and the 1990 regulations, but they are not otherwise published. The equipment approved to administer the preliminary breath test is the "Alco-Sensor" as described in the 1983 regulations, § III A 3 at 0-15. See the 1990 regulations, § V A 3 at 29. The equipment approved to administer the test called for in TR § 16-205.1(a) is the "Breathalyzer" as described in the 1983 regulations, § II A 1 at 0-4. See the 1990 regulations, § IV A at 19.
The regulations of the toxicologist permit only police officers who have received training in the use of preliminary breath test devices to conduct preliminary breath tests. Regulations (1983) § III B at 0-16; Regulations (1990) § V B at 30. The Breathalyzer operator must be "a full time police officer or a full time laboratory technician of a participating agency," who shall have successfully completed the Basic Breathalyzer Operator Course, and retake the course every 15 months. Regulations (1983) § II B 1; Regulations (1990) § IV E 1.
Frank Leroy Krauss was found by a jury in the Circuit Court for Cecil County to be guilty of driving a vehicle while under the influence of alcohol. 3 The Court of Special Appeals affirmed the judgment entered on his conviction. Krauss v. State, 82 Md.App. 1, 569 A.2d 1284 (1990). We ordered the issuance of a writ of certiorari on Krauss's petition. After the case was briefed and argued before us, we ordered that it be reargued. Having heard the reargument, we proceed to decision. The sole question before us is:
Whether the trial judge erred in admitting evidence of [Krauss's] refusal to take a breathalyzer test.
Before trial on the merits began, defense counsel moved "in limine to prevent the State from introducing any evidence concerning [K...
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