Meanor v. State

• Decision Date: 22 June 2001
• Docket Number: No. 106,106
• Citation: 364 Md. 511,774 A.2d 394
• Parties: Glenn Lydell MEANOR, v. STATE of Maryland.
• Court: Maryland Court of Appeals

774 A.2d 394

364 Md. 511

Glenn Lydell MEANOR, v.STATE of Maryland.

No. 106, Sept. Term, 2000.

Court of Appeals of Maryland.

June 22, 2001.

Mark Colvin, Assistant Public Defender(Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Celia Anderson Davis, Assistant Attorney General(J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.

WILNER, Judge.

Petitioner, Glenn Meanor, was convicted in the Circuit Court for Howard County of driving while intoxicated, driving under the influence of alcohol, and failure to obey a traffic control device, for which he was given a suspended jail sentence.Those judgments were affirmed by the Court of Special Appeals.Meanor v. State,134 Md.App. 72, 758 A.2d 1124(2000).

We granted certiorari to consider whether (1)petitioner was effectively charged with driving while intoxicated per se, (2)the trial court erred in instructing the jury that petitioner was intoxicated if his blood alcohol content (BAC) was 0.10 or more, and (3) the results of a breath test that he opted to take were admissible in light of the arresting officer's failure to inform him that, if he refused to take the test, the Motor Vehicle Administration (MVA) could modify an otherwise automatic suspension of his driver's license and issue him a restrictive license if he participated in the Ignition Interlock System Program.Our responses to these questions, which we shall address in a slightly different order, will lead to a vacation of the Court of Special Appeals judgment.

BACKGROUND

The relevant facts are essentially undisputed.Meanor and a friend, Dixon, spent the evening of February 11, 1999, drinking at a nightclub.When they left the club, they agreed that Meanor had too much to drink and that Dixon should drive Meanor's car.They had not proceeded far when Dixon was stopped by Officer Mui, who had observed the car weaving between lanes.After failing several field sobriety tests, Dixon was arrested.Mui and Sergeant Christis, a backup officer who arrived at the scene, noted a strong odor of alcohol on Meanor's breath and the fact that he had glassy eyes and slurred speech.Believing that he, too, was intoxicated, the officers directed him not to drive.They offered to take him to the police station or to a public telephone and advised that they could arrange to have the car towed or he could wait on the shoulder for a ride home.Meanor declined their offer of assistance and said that he would use his cell phone to make the necessary arrangements.Officer Mui transported Dixon to the police station, and Sergeant Christis drove a short distance away and parked in the center median strip so that she could keep Meanor's vehicle in view.

Some 20 minutes later, Christis observed Meanor pull onto the road and resume his journey.She began following the car, and, when it crossed the white line separating the road from the shoulder, she initiated a traffic stop.When Meanor performed poorly on three field sobriety tests, Christis placed him under arrest and seated him in the back of her police car.She then read him the Advice of Rights from the DR-15 form prepared by MVA regarding his right to take or refuse to take the breathalyzer test mandated by State law.Meanor made no election at that time, and they proceeded to the police station, where he was directed to read for himself the Advice of Rights form.After doing so, he initially refused to take the test but later, upon learning that Dixon had been processed and released, he consented.The test was performed, and the results showed a BAC of 0.13.

Meanor was issued two citations.One, we presume, was for the traffic control violation.On the other, relevant here, Sergeant Christis circled Item 33, charging Meanor with violating "21-902 Driving While Intoxicated & Under Influence Alcohol & Under Influence of Drugs, & Drugs & Alcohol & Controlled Dangerous Substance."Upon Meanor's request for a jury trial, the case was transferred from the District Court to the Circuit Court for Howard County.At trial, Meanor said that, after the officers left, he made several calls on his cell phone to arrange a ride but succeeded in reaching only answering machines.While waiting for someone to return his call, the battery in his cell phone went dead, and, fearing for his safety while parked on the side of the road, he decided to proceed to the next exit and find a pay phone.

At the commencement of trial, the State informed the court and Meanor that he was being charged generally under § 21-902 of the Transportation Article, and it asked that the case proceed under § 21-902(a) and (b).Meanor then moved, in limine, to exclude the results of the breath test on the ground that he was not properly advised of the consequences of refusing to take the test.Specifically, he pointed out that the advice of rights he was given stated that a refusal to take the test would result in a suspension of his driver's license for 120 days, if this were a first offense, and that he would be ineligible for a modification of the suspension or the issuance of a restricted license.It did not, he complained, inform him that MVA could modify the suspension if he agreed to participate in the Ignition Interlock System Program authorized under § 16-404.1 of the Transportation Article.The court denied the motion and, at the appropriate time, the results of the breath test were admitted.

In its instructions to the jury, the court explained the offenses of driving while intoxicated and driving under the influence of alcohol.With respect to the former, it told the jury that a person is intoxicated when the alcohol that he has consumed has substantially impaired normal coordination and, over Meanor's objection, added this language:

"Now you've heard evidence in this case that the Defendant's breath was tested for the purposes of determining the alcoholic content of the Defendant's blood.The [e]ffect of such results is as follows.If you find that at the time of testing, the Defendant had point one zero percent or more by weight of alcohol in the blood, the Defendant was intoxicated."

The prosecutor stressed that point during closing argument and reminded the jury several times that the test results showed a BAC of 0.13.During its deliberations, the jury sent a note asking, "if we agree that the blood alcohol level was point one three, are we required to find the Defendant guilty of driving while intoxicated," to which the court replied that all elements of the crime must be proved beyond a reasonable doubt and that the jury may review the court's instructions.As noted, the jury convicted of both driving while intoxicated and driving under the influence of alcohol.

DISCUSSION

The issues raised by Meanor, centering on the challenged jury instruction and the reception into evidence of the BAC test results, can be understood only in the context of statutory changes made over the past decade to the laws relating to drunk driving.We shall need, therefore, to examine those changes in some detail.Indeed, the changes are ongoing.Some of the substance and much of the terminology applicable in this case have been changed by legislation enacted in the 2001 Session of the General Assembly.See2001 Md. Laws, ch. 5.We shall note those recent changes where pertinent.

The Jury Instruction

(A)Whether Driving While Intoxicated Per Se Is A Separate Offense

At the time relevant to this case, Maryland Code, § 21-902(a) and (b) of the Transportation Article, provided as follows:

"(a)Driving while intoxicated or intoxicated per se.

(1) A person may not drive or attempt to drive any vehicle while intoxicated.

(2) A person may not drive or attempt to drive any vehicle while the person is intoxicated per se.

(b)Driving while under the influence of alcohol.

A person may not drive or attempt to drive any vehicle while under the influence of alcohol."

Section 11-127.1 of the Transportation Article defined the term "intoxicated per se" as "having an alcohol concentration at the time of testing of 0.10 or more as

measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath."¹

Meanor regards § 21-902(a)(1) and (2) as creating two separate offenses.Though acknowledging that, by virtue of the definition in § 11-127.1, evidence of a BAC of 0.10 or more would suffice, on its own, to justify a conviction of driving while intoxicated per se under § 21-902(a)(2), he urges that such a BAC would not be conclusive with respect to § 21-902(a)(1)—that it is possible for a person to have a BAC of 0.10 or more and not have his normal coordination substantially impaired by alcohol.Because, in his view, he was never properly charged with a violation of § 21-902(a)(2), the court's instruction informing the jury that a BAC of 0.10 or more would render him intoxicated created an impermissible per se test for the § 21-902(a)(1) offense and was therefore erroneous as a matter of law.

The State's view is that § 21-902(a)(1) and (2) are not separate offenses.It contends that there was but one offense of driving (or attempting to drive) while intoxicated, which may be proved either by showing a BAC of 0.10 or more or by other evidence indicating coordination substantially impaired by alcohol.The Court of Special Appeals adopted the State's view, holding that § 21-902(a)(2) simply "provide[s] a method of convicting an accused of driving while intoxicated by a reduced `grade of proof.'"Meanor v. State, supra,134 Md.App. at 81, 758 A.2d at 1129.The legislative history of § 21-902(a)(2) establishes rather conclusively the fallacy in the State's position.

Prior to 1995, § 21-902(a) prohibited a person from driving or attempting to drive a vehicle while intoxicated, and § 21-902(b) prohibited a person from driving or...