MVA v. Lytle

• Decision Date: 08 April 2003
• Docket Number: No. 68,68
• Citation: 374 Md. 37,821 A.2d 62
• Parties: MOTOR VEHICLE ADMINISTRATION v. Michael Patrick LYTLE.
• Court: Maryland Court of Appeals

821 A.2d 62

374 Md. 37

MOTOR VEHICLE ADMINISTRATION v. Michael Patrick LYTLE.

No. 68, Sept. Term, 2002.

Court of Appeals of Maryland.

April 8, 2003.

Leight D. Collins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen of MD, on brief), Glen Burnie, for petitioner.

Michael Patrick Lytle, Pasadena, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ. HARRELL, Judge.

I.

Respondent in this case, Michael Patrick Lytle, was arrested for Driving While Intoxicated (DWI) and administered a breathalyzer test. The relevant statutory provisions establish a rebuttable presumption that the test results generated by certain breath test instruments administered by trained test technicians are accurate. That presumption may be rebutted at an administrative evidentiary hearing by a showing that the specific instrument used to measure the subject's breath was malfunctioning at the time of testing or that human error caused the test to generate an inaccurate result. Respondent offered no evidence or arguments on either score before an Administrative Law Judge ("ALJ") of the Maryland Office of Administrative Hearings ("OAH"). Instead, he claimed generally that the type of machine used, the Intox EC/IR, had a plus or minus 0.01 range of accuracy and that that margin of error must be applied to his case, yielding a blood alcohol content ("BAC") measurement below the then prevailing 0.10 benchmark for DWI. The specific issue before us is whether a general "margin of error" of the "accepted scientific range of accuracy" of the type of test instrument used must be applied to certified test results produced by a specific Intox EC/IR machine in a prima facie case of violating Maryland Code, Title 16, § 16-205.1(f)(8)(i)(4)(B).

A.

The Transportation Article of the Maryland Code, Title 16 (Vehicle Laws—Driver's Licenses), Subtitle 2 (Cancellation, Refusal, Suspension, or Revocation), §§ 16-201—213 (1977, 1999 Repl.Vol. and 2000 Supp.),¹ § 16-205.1(b)(2) provides that

... if a police officer stops or detains any person who the police officer has reasonable grounds to believe is or has been driving or attempting to drive under the influence of alcohol ... the police officer shall: (i) Detain the person; (ii) Request that the person permit a test to be taken; and (iii) Advise the person of the administrative sanctions that shall be imposed for refusal to take the test,....

The type of testing authorized under § 16-205.1 is a test of breath or, under limited exceptions, a blood test to determine alcohol concentration. § 16-205.1(a)(1)(iv). When the test is administered, the toxicologist's reporting protocol is to reduce the readings of the test instrument to a reported result. The "test result" is generated when the operator takes the lowest of two or three readings and records the lowest result after it is rounded down to the second decimal place. Regulations of the State Toxicologist, Amendment 1, Section C(5) (1999). When a test results in a BAC of 0.10 or more at the time of testing, the police officer administering the test "shall ... personally serve an order of suspension on the person." § 16-205.1(b)(3)(ii). The police officer then must send a sworn statement to the Motor Vehicle Administration (MVA) within seventy-two hours stating that the person submitted to the test and that the test indicated an alcohol concentration of 0.10 or more at the time of testing. § 16-205.1(b)(3)(vii)(2). Under the statute, the sworn statement of the test technician or analyst is prima facie evidence of a test result of 0.10 or more. § 16-205.1(f)(7)(ii). The Intox EC/IR test machine is a "reliable indicator of the alcohol concentration of a person," pursuant to the Code of Maryland Regulations ("COMAR") 11.11.03.08B(6).

The Transportation Article authorizes tests "subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article." § 16-205.1(f)(8)(i)(4)(B). Sections 10-304(a)(3) and (b) of the Courts and Judicial Proceedings Article of the Maryland Code require tests to be administered with "equipment approved by the toxicologist under the Postmortem Examiners Commission" and by a "qualified person" who "has received training in the use of the equipment in a training program approved by the toxicologist." The protocols for testing procedures and the equipment approved by the toxicologist are contained in the Regulations of the Toxicologist ("Toxicologist's Regulations").² The accuracy of the breath test instruments is monitored both through diagnostic maintenance performed at least monthly on the Intox EC/IR test machine and through an internal standard test that is run before and after the administration of each test. Toxicologist's Regulations, Sections IIE, IIIC(3), Amendment 1, Section C(3). The monthly diagnostic test is conducted using a test solution that is 0.10% alcohol content. The results of the test must be between 0.095% and 0.105% or the test instruments must be removed from use until they are repaired to meet the required tolerance. Toxicologist's Regulations, Section IIA(7). The test instrument itself runs an internal standard test, generating an "STD" reading, at the beginning and end of each test. A valid test yields an STD reading between 0.090 and 0.110 pursuant to the regulations. Toxicologist's Regulations, Amendment 1, Section C(3).

The person subject to detention may request an administrative hearing at the time his license is suspended or within a specified period thereafter. § 16-205.1(b)(3)(v).³ If the person does not request an administrative hearing, then a sanction is imposed on the forty-sixth day after issuance of the order of suspension. A test result indicating an alcohol concentration of 0.10 or more at the time of testing requires imposition of a forty-five or ninety day suspension of the driver's license, depending on the number of prior offenses. § 16-205.1(b)(1)(i) and (ii). If there is an administrative hearing, the issues to be adjudicated are circumscribed by § 16-205.1(f)(7)(i):

1. Whether the police officer who stops or detains a person had reasonable grounds to believe the person was driving or attempting to drive while intoxicated, while under the influence of alcohol, while so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title;

2. Whether there was evidence of the use by the person of alcohol, any drug, any combination of drugs, a combination of one or more drugs and alcohol, or a controlled dangerous substance;

3. Whether the police officer requested a test after the person was fully advised of the administrative sanctions that shall be imposed, including the fact that a person who refuses to take the test is ineligible for modification of a suspension or issuance of a restrictive license under subsection (n)(1) and (2) of this section;

4. Whether the person refused to take the test;

5. Whether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of 0.10 or more at the time of testing; or

6. If the hearing involves disqualification of a commercial driver's license, whether the person was operating a commercial motor vehicle.

(Emphasis added.) The sworn statement of the test technician is prima facie evidence of a test result of 0.10 BAC or more. The person contesting the test instrument reading may submit evidence that the test instrument used to measure his or her breath was "malfunctioning at the time of testing, or that human error caused the test to be inaccurate." COMAR 11.11.03.08B(7). The Code of Maryland Regulations, 11.11.03.08B(5)-(7) (Hearings, Evidence), promulgated pursuant to § 12-104(b), provided in relevant part:

(5) For the purpose of determining the accuracy of the test result indicating the alcohol concentration of the licensee, the following breath testing instruments shall be deemed reliable indicators of the alcohol concentration of a person:

(a) Breathalyzer Model 900;

(b) Breathalyzer Model 900A;

(c) Intoximeter 3000; and

(d) Intox EC/IR.

(6) There shall be a rebuttable presumption that the test result of a test of blood or breath indicating the alcohol concentration of the licensee is accurate.

(7) The reliability of breath testing instruments approved in § B(5) of this regulation and the presumption established in § B(6) of this regulation may not preclude a licensee from demonstrating that the specific breath testing instrument used to test the alcohol concentration of the licensee was malfunctioning at the time of testing, or that human error caused the test result to be inaccurate.

B.

Lytle was stopped by Officer Dickey of the Anne Arundel County Police Department at approximately 10:50 p.m. on 11 March 2001 after the officer paced him traveling 70 m.p.h. in a posted 55 m.p.h. zone and watched him cross the shoulder lane marker five times and the center line four times. After stopping Lytle's vehicle, Officer Dickey noticed the smell of alcohol emanating from Lytle's breath. The officer administered the Horizontal Gaze Nystagmus test to Lytle who displayed six clues of intoxication. Officer Dickey then administered two additional field sobriety tests to Lytle who displayed four signs of intoxication on the walk and turn test and three signs of intoxication on the one leg stand test. A preliminary breath test was administered and Lytle was arrested for driving while intoxicated and driving under the influence of alcohol.

After arresting Lytle, Officer Dickey requested another breathalyzer test which resulted in a reading of 0.101 grams of alcohol per 210 liters of breath. A second test administered by the officer...