Lowry v. State

• Decision Date: 12 March 2001
• Docket Number: No. 36,36
• Citation: 768 A.2d 688,363 Md. 357
• Parties: Mariellen LOWRY v. STATE of Maryland.
• Court: Maryland Court of Appeals

768 A.2d 688

363 Md. 357

Mariellen LOWRY v. STATE of Maryland.

No. 36, Sept. Term, 2000.

Court of Appeals of Maryland.

March 12, 2001.

Gill Cochran, Annapolis, for petitioner.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent. Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL and HARRELL, JJ.

PER CURIAM.

On September 3, 1998, petitioner, Mariellen Lowry, was pulled over by Officer Douglass F. Catherman, of the Howard County Police Department, and charged generally with "driving while intoxicated" and related charges.² At the police station, after the traffic stop, petitioner consented to a breath test for alcohol concentration and made several attempts, all but one of which were unsuccessful, to provide samples which could be analyzed by to the Howard County Police.³ In a bench trial before the District Court of Maryland, sitting in Howard County, petitioner was convicted of the lesser charge of "driving under the influence of alcohol" and the remaining traffic offenses.

Petitioner appealed to the Circuit Court for Howard County. Petitioner argued, in a motion to that court, that once she consented to the administration of a test for alcohol concentration and the breath test did not provide a percentage reading, the State had a mandatory duty, upon her request, to administer a blood test to determine alcohol concentration, and the State's failure to administer the blood test warranted, at the very least, a missing evidence instruction to the jury. The Circuit Court denied the request for the instruction, but did allow defense counsel to argue during closing arguments that because the State failed to produce a test result in evidence, an inference could be made that if the test had produced results, those results would have been favorable to petitioner. The jury convicted her of "driving under the influence of alcohol" and failure to display a registration card on demand.⁴ Petitioner presented two questions in her Petition for Certiorari⁵:

I. Does Maryland's implied consent statute, Transportation Article [section] 16-205.1, impose a mandatory duty upon officers to obtain a test for alcohol concentration when a detained person consents to the taking of a test?

II. If the court finds a duty exists, what is the appropriate remedy when an officer fails to obtain an evidentiary test for alcohol concentration?

We shall answer the second question, assuming that a duty exists, and hold that the appropriate remedy, in that event, would be the remedy afforded by the trial court in this case—permitting petitioner to argue appropriate inferences to the jury. It is, therefore, not necessary to address the first question. The appropriate remedy, under the circumstances here present, would be to allow defense counsel to argue an inference that had a blood test been subsequently administered, its results would have been favorable to petitioner. Defense counsel was afforded the opportunity, during closing argument, to argue an inference that had a blood test been administered, its results would have been favorable to petitioner. That is all to which she was entitled.

I. Facts

Petitioner testified⁶ that between 7:00 and 8:30 p.m. on September 3, 1998, she attended a wine and cheese reception in the office building in which she works. She further testified that at this reception she drank two glasses of Chardonnay. At approximately 8:30 p.m., she left the reception and went upstairs to her office in order to prepare for a contract presentation she was planning to give the following morning. She worked in her office until approximately 10:15 p.m. and was in her car driving home by 10:25 p.m. She testified that she was very tired from a long day at work and even tried to stop for a cup of coffee but the store was closed. At some point while driving home, she was utilizing her cellular telephone to talk with her husband. The phone disconnected and she was attempting to redial her husband's telephone number when she looked into her rearview mirror and saw a police car with its flashing lights behind her. She initially thought that the officer was trying to pass her, but then realized that he wanted her to stop. She pulled over to the side of the road, put her car in park, and turned on her emergency flashers.

Officer Catherman testified that at approximately 11:15 p.m. while on the ramp from Route 108 to eastbound Route 32, he observed Ms. Lowry's motor vehicle "swerve, crooked to the right, crossing the right side lane marker, the painted lane marker by a half a vehicle width. The vehicle then quickly swerved back into the center of the lane." Officer Catherman then initiated his emergency lighting equipment and siren on his police vehicle. The two vehicles traveled at approximately 50 miles per hour for another 0.2 miles before petitioner pulled over to the side of the road, put the car in park and turned on her four-way flashers.

Officer Catherman testified that when he approached the vehicle, the driver's window was rolled down and he "detected a strong fruity odor of an alcoholic beverage emitting from the car, from the driver's window. [He] observed her eyes were bloodshot and watery." When he asked petitioner for her driver's license and registration, petitioner provided him with her license, however, she could not locate the vehicle's registration. He "then asked her about the smell of the alcoholic beverage in her vehicle," to which she replied "that she had not been drinking, she was just very tired." Officer Catherman also noted that petitioner's speech was "slow and slurred." At this point, he asked petitioner to exit her motor vehicle to perform several standardized field sobriety tests. Officer Catherman administered three field sobriety tests⁷ and subsequently informed petitioner that her performance on these tests was consistent with the presence of alcohol in the body. He further testified that petitioner responded by stating "okay, I'll tell you the truth, I've had two drinks, but I'm really just tired." At this point he determined that he had probable cause to place petitioner under arrest and had her transported to the Howard County Southern District Police Station. He further testified that her demeanor from the time of initial contact until she took the breath test was polite and cooperative.

At the police station, Officer Karen Slack advised petitioner of her rights pursuant to Maryland Code (1974, 1998 Repl. Vol.,2000 Cum.Supp.), section 10-309(a) of the Courts and Judicial Proceedings Article and section 16-205.1(b) of the Transportation Article⁸ to submit to or refuse to submit to a test to determine alcohol concentration.⁹ She elected to submit to the Breathalyzer test. Sergeant Mitchell, a State-certified toxicologist, administered the initial test at approximately 12:25 a.m. on September 4, 1998¹⁰ by utilizing an Intoximeter 3000. As Sergeant Mitchell testified, under the regulations of the toxicologist for the State of Maryland, a test actually consists of two breath samples in order to compare the samples to ensure that the instrument is in proper working order. See Regulations of the Toxicologist Post Mortem Examiners Commission State of Maryland Regarding Tests of Breath and Blood for Alcohol (October 1, 1995) at 13-15.¹¹ Petitioner's first sample taken during the first test indicated a reading of 0.173, but her second sample in the first test read "insufficient breath."¹² Starting at approximately 12:44 a.m. on September 4, 1998, Sergeant Mitchell administered the sampling procedure two more times and on each occasion the device read "interfering substance."¹³ Petitioner testified that, at this point in time, she requested a blood test to prove that she was not under the influence of alcohol.¹⁴ Both Officer Catherman and Sergeant Mitchell testified that they did not recall her requesting a blood test.

Officer Catherman arrested and charged petitioner with "driving while intoxicated" on the basis of his prior observations of both her driving and her field sobriety tests. Both Officer Catherman and Sergeant Mitchell testified on direct examination that petitioner became upset and argumentative when she was told that she was being charged despite the absence of a result stated in percentages from the Intoximeter. When asked on direct examination whether petitioner made any statements to him as he was issuing her the citations, Officer Catherman testified, without any objection from petitioner:¹⁵

Yes, she did. She stated that she had only had two glasses of wine. As I was issuing the tickets, she stated to me, what you going to charge me? These results are not admissible in Court. She stated to me, don't you think you should be out getting some real criminals? You ought to get a new hobby. The result of 1 7 is not admissible in Court.

In a bench trial before the District Court of Maryland sitting in Howard County, petitioner argued that, pursuant to Maryland Code (1977, 1999 Repl.Vol., 2000 Cum.Supp.), section 16-205.1 of the Transportation Article and Maryland Code (1974, 1998 Repl.Vol., 2000 Cum.Supp.), sections 10-302 through 10-309 of the Courts and Judicial Proceedings Article,¹⁶ the State had a mandatory statutory duty to provide a test for alcohol concentration to petitioner. Petitioner further argued that pursuant to State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984), she should be allowed an inference at trial that had a blood test for alcohol concentration been administered the result thereof would have been favorable to petitioner. After an argument by the State, the District Court granted petitioner's request that a Werkheiser inference be made. Petitioner was, nonetheless, convicted of driving under the influence of alcohol, as well as failure to obey a proper traffic control device and failure to display a registration card on demand.

Petitioner appealed to the...