Loscomb v. State
| Decision Date | 19 May 1980 |
| Docket Number | No. 448,448 |
| Citation | 416 A.2d 1276,45 Md.App. 598 |
| Parties | Michael Lee LOSCOMB v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Bonnie A. Travieso, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Sidney S. Campen, Jr., State's Atty. for Talbot County, and Jane Tolar O'Connor, Asst. State's Atty. for Talbot County, on the brief, for appellee.
Argued before GILBERT, C. J., and MORTON and MacDANIEL, JJ.
This case was argued before the Court on December 10, 1979. We issued an opinion on January 10, 1980. Appellant filed a motion for reconsideration. We granted that motion and recalled the opinion as filed on January 10, 1980. As a result of our reconsideration, we modify our original opinion.
Whenever an operator of a motor vehicle is believed, while "intoxicated," 1 to have caused the death of another person as a result of the manner in which he or she drove his or her motor vehicle, the operator is subject to being charged with either or both of two distinct violations of the Criminal Law.
Md.Ann.Code art. 27, § 388 provides:
Cognizant of the degree of difficulty confronting State's Attorneys' efforts to prove "gross negligence" in order to establish guilt under section 388, 3 the Legislature enacted a new substantive offense that contained many of the elements of manslaughter by motor vehicle, but added the additional factor of "intoxication," and reduced the "gross negligence" standard of section 388 to "negligence." Md.Ann.Code art. 27, § 388A.
The title to Laws 1978, ch. 454, declares that:
"FOR the purpose of providing that any person causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor; specifying a name for the misdemeanor; setting the penalties for the misdemeanor; specifying that an indictment for the crime need not contain certain information; providing a form for the indictment; (and) defining intoxicated as it relates to this crime . . . ." (Emphasis supplied.)
Immediately thereafter, the crime of "Homicide by motor vehicle while intoxicated," section 388A was added to Article 27 of the Maryland Code. Section 388A provides in pertinent part:
"(a) In this section 'intoxicated' has the same meaning as indicated in and is subject to the same presumptions and evidentiary rules of § 10-307 of the Courts Article regarding intoxication under the vehicle laws of this State.
(b) Any person causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor to be known as 'homicide by motor vehicle while intoxicated,' and the person so convicted shall be punished by imprisonment for not more than two years, or by fine of not more than $1,000 or both fine and imprisonment.
In any indictment, information, or warrant for homicide by motor vehicle while intoxicated, it is not necessary to set forth the manner and means of death.
(c) It shall be sufficient to use a formula substantially to the following effect: 'That A-B on the ....... day of ....... nineteen hundred and ....... at the County (City) aforesaid, unlawfully, while intoxicated did kill C-D, against the peace, government, and dignity of the State.' " 4
A critical part of any prosecution under section 388A is the establishment by the State of the fact that the accused was intoxicated within the meaning "of § 10-307 of the Courts Article." Consequently, when the State endeavors to prove a charge of "Homicide by motor vehicle while intoxicated" it must rely upon Md.Cts. & Jud.Proc.Code Ann. (1974) § 10-307, in order to demonstrate to the trier of fact that the accused was intoxicated. Courts Art. § 10-307 provides:
"(a) In general. In a proceeding in which a person is charged with a violation of § 388A of Article 27 ( 5 or with driving or attempting to drive a vehicle in violation of § 21-902 of the Transportation Article, ( 6 the amount of alcohol in the person's breath or blood shown in chemical analysis as provided in this subtitle is admissible in evidence and has the effect set forth in subsections (b) through (e) of this section.
(b) No intoxication presumed. If there was in his blood at the time of testing 0.05 percent or less, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be presumed that the defendant was not intoxicated and that his driving ability was not impaired by the consumption of alcohol.
(c) No presumption. If there was in his blood at the time of testing more than 0.05 percent, but less than 0.10 percent, by weight, of alcohol, as determined by an analysis of his blood or breath, this fact may not give rise to any presumption that the defendant was or was not intoxicated or that his driving ability was or was not impaired by the consumption of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
(d) Prima facie evidence of impairment. If there was in his blood at the time of testing 0.10 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be prima facie evidence that the defendant's driving ability was impaired by the consumption of alcohol.
(e) Prima facie evidence of intoxication. If there was in his blood at the time of testing 0.15 percent, or more, by weight, of alcohol, as determined by an analysis of his blood or breath, it shall be prima facie evidence that the defendant was intoxicated." (Emphasis supplied.)
The General Assembly did not expressly amend Courts Art. § 10-302 which provides:
"In a prosecution for a violation of a law concerning a person who is driving or attempting to drive 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 alcoholic content of his blood." (Emphasis supplied.)
The net effect of section 10-302, however, is to permit a chemical test whenever there is a violation of any law that involves driving while intoxicated or impaired. Even if such were not the situation, it is patent that the chemical test may be administered to a person charged with a violation of section 388A because in order to violate that section of the criminal code, a violation of Transportation Art. § 21-902 must also occur. Stated more simply, to be guilty of "Homicide by motor vehicle while intoxicated" requires, of necessity, that the operator of the vehicle be intoxicated within the scope of Transportation Art. § 21-902.
An integral part of the legislative scheme to detect and punish the operator of a motor vehicle while intoxicated 7 is that the person accused of violating Transportation Art. § 21-902 or Md.Ann.Code art. 27, § 388A, is not compelled to submit to a chemical analysis, notwithstanding that he or she signed a statement of consent as a prerequisite to obtaining a driver's license, or renewal thereof, to submit to a chemical test of his or her blood or breath if he or she is " 'detained on suspicion of driving or attempting to drive . . . while intoxicated or . . . impaired by consumption of alcohol.' " Transportation Art. § 16-205.1(a)(1). 8
Courts Art. § 10-309 provides:
The predecessor to Courts Art. § 10-309 was interpreted by the Court of Appeals in Mauldin v. State, 239 Md. 592, 212 A.2d 502 (1965). In that case, the Court observed that former Md.Ann.Code art. 35 (Evidence), § 100(c) provided that " 'no person shall be compelled to submit himself * * * for the purpose of chemical analysis * * * and no inference * * * concerning his guilt or innocence arises by reason of his refusal to submit * * *.' " The Court went on to state that "the failure to affirmatively or validly agree to . . . (the chemical analysis) does not bar the presentation of its results into evidence." Mauldin argued that even though he had been advised of his rights, Md.Ann.Code art. 35, § 100(g), and had consented to the test, his intoxicated state negated the consent. The Court disagreed. Although in Mauldin the Court did not expressly incorporate then Article 35, § 100(g) into Md.Ann.Code art. 27, § 388, they at least required its application. We do...
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