State v. Moon, 141

Citation291 Md. 463,436 A.2d 420
Decision Date14 October 1981
Docket NumberNo. 141,141
PartiesSTATE of Maryland v. Craig Wesley MOON.
CourtCourt of Appeals of Maryland

Maureen O'Ferrall, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

John L. Kopolow, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

We shall here hold that the exclusionary provisions of Maryland Code (1974, 1979 Cum.Supp.) § 10-309, Courts and Judicial Proceedings Article, are not applicable to evidence of the blood alcohol content of an accused where the blood was extracted for the purpose of treatment. Hence, we shall reverse the determination to the contrary by the Court of Special Appeals in its unreported opinion in this case.

Craig Wesley Moon was convicted in the nonjury trial in the Circuit Court for Carroll County on two counts of manslaughter by automobile (Code (1957, 1976 Repl. Vol.) Art. 27, § 388) and one count of driving while intoxicated (Code (1977) § 21-902(a), Transportation Article). On appeal the Court of Special Appeals relied on Loscomb v. State, 45 Md.App. 598, 612-13, 416 A.2d 1276 (1980), aff'd, --- Md. ---, 435 A.2d 764 (1981), a case involving analysis of blood extracted at a hospital by express direction of a police officer without the consent of the accused but while he was conscious. A citation had already been issued to him at that time charging him with operating a vehicle in violation of § 21-902, Transportation Article. The Court of Special Appeals reversed, holding that the evidence must be excluded because there had not been compliance with the statute in question. In the process of its opinion reference was made to Major v. State, 31 Md.App. 590, 358 A.2d 609, cert. denied sub nom. Flanagan v. State, 278 Md. 722 (1976), and the fact that the blood sample here was not obtained within the two hour limitation imposed by § 10-303. We granted the State's petition for the writ of certiorari.

The facts relevant to the contentions before us may be briefly stated. They are gleaned from the agreed statement of facts presented by the parties pursuant to Maryland Rule 828 g.

Moon was involved in an automobile accident in Carroll County, north of Westminster, at approximately 12:34 a.m. on February 18, 1979, on the road from Westminster to Gettysburg, Pennsylvania, via Littlestown, Pennsylvania, then known as U. S. Route 140, now Md. 97. Moon was traveling north. His car collided with a southbound vehicle. The driver and passenger in that car were both killed.

Moon was transported via State Police helicopter to the Shock Trauma Unit of University Hospital in Baltimore City. We do not know precisely when he arrived there, but we infer that it was prior to 1:30 a. m. since we note in the hospital record reference to an x-ray examination said to have been made at that hour.

At 2:30 a. m. an osmolality test was administered. At trial, Dr. Yale H. Caplan, Chief Toxicologist of the State Medical Examiner's office, testified that the value of 347 recorded on that test was "consistent with an alcohol concentration of approximately ... .15 or .16." He added, "But this is not as definitive a test of alcohol, this is really only an indicator. It's not really a definitive determination of alcohol, but it allows an early assessment of whether alcohol might be involved."

There is in the record an order from Moon's attending physician for a general drug screening test. The prepared form of report for such a test includes alcohol, amphetamines, barbiturates, dilantin, librium, methadone, opium alkaloids, salicylates, and valium, among others, for which tests are to be made. Items added to the form in longhand in this instance include quinine, acetaminophen, and placidyl. The physician's direction and the form of report effectively refute any suggestion that somehow there was a conspiracy between the State Police and University Hospital, another State agency, to obtain the information as to blood alcohol content in circumvention of the statute. The record indicates that the specimen of blood was taken at 2:49 a. m. on February 18. The report shows a blood alcohol content of 0.165%. 1

The trial judge in his opinion summarized, correctly, certain of the testimony of Dr. Caplan:

In the opinion of Doctor Caplan, a blood alcohol level of .165 represents a significant concentration of alcohol in the blood system. Doctor Caplan testified that at a level of .08 all people are affected by alcohol in the system, and as the level rises, as in this case twice the normal level as considered by Doctor Caplan, twice the minimal level, the person so affected tends to have increased self-confidence, decreased concentration, elements of impaired vision, which could possibly lead to double vision; and it causes the individual so affected by the use of alcohol to take a longer period of time to respond to certain situations leading to an increase in reaction time. 2

The controversy here concerns §§ 10-302 to -309, Courts and Judicial Proceedings Article, which were contained in Code (1957, 1971 Repl. Vol.) Art. 35, § 100 prior to its recodification by Chapter 2 of the Acts of the Special Session of 1973 as a part of the Courts and Judicial Proceedings Article.

Section 10-302 states:

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.

Code (1977) § 21-902, Transportation Article makes it unlawful for a person to drive or attempt to drive any vehicle while intoxicated; while his driving ability is impaired by the consumption of alcohol; while he is so far under the influence of any drug, any combination of drugs, or any combination of drugs and alcohol that he cannot drive a vehicle safely; and while he is under the influence of any controlled dangerous substance as the term is defined in Code (1957) Art. 27, § 279. With regard to the coverage of § 21-902, Transportation Article see State v. Loscomb, supra.

Section 10-303 states that the specimen of breath or blood shall be taken within two hours "after the person accused is apprehended." Qualifications of a person administering a test and of equipment to be used are set forth in § 10-304. A defendant is given the right in § 10-305 to select the type of test to be administered. Provision for admissibility of test results without the presence or testimony of a technician are set forth in § 10-306.

Section 10-307 states:

(a) In general.-In a proceeding in which a person is charged with a violation of § 388A of Article 27 or with driving or attempting to drive a vehicle in violation of § 21-902 of the Transportation Article, 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. 3

We have already spelled out the scope of § 21-902 of the Transportation Article. Code (1957, 1976 Repl. Vol., 1978 Cum. Supp.) Art. 27, § 388A pertains to a person "causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated," the word "intoxicated" being defined as having "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." It is distinguishable from manslaughter by automobile, Art. 27, § 388, which by its terms requires proof of gross negligence.

Section 10-308 provides that evidence of the chemical analysis does not limit the introduction of other evidence bearing upon whether an accused was intoxicated or whether his driving ability was impaired by the consumption of alcohol. Section 10-309, upon which Moon relies, states:

(a) Test not compulsory.-A person may not be compelled to submit to a chemical analysis provided for in this subtitle. Evidence of chemical analysis is not admissible if obtained contrary to its provisions. No inference or presumption concerning either guilt or innocence arises because of refusal to submit. The fact of refusal to submit is not admissible in evidence at the trial.

(b) Consequences of refusal.-This subsection...

To continue reading

Request your trial
31 cases
  • Albrecht v. State
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1992
    ...Willis v. State, 302 Md. 363, 369, 488 A.2d 171 (1985) (two convictions under § 388, total sentence of five years); State v. Moon, 291 Md. 463, 464-65, 436 A.2d 420 (1981) (two convictions and maximum sentences under § 388, sentences running concurrently); Boyd v. State, 22 Md.App. 539, 540......
  • U.S. v. Sauls
    • United States
    • U.S. District Court — District of Maryland
    • 8 Octubre 1997
    ...764 (1981). Rather than being an implied consent statute, it has been described as an express consent statute. State v. Moon, 291 Md. 463, 492-493, 436 A.2d 420, 435 (1981), Davidson J. dissenting. Furthermore, Form DR-15 utilized by the State of Maryland and by the military police in this ......
  • Moon v. State
    • United States
    • Court of Appeals of Maryland
    • 1 Septiembre 1982
    ...as evidence for criminal prosecution. We remanded this case to the court to consider the issues raised but not decided. State v. Moon, 291 Md. 463, 436 A.2d 420 (1981). On remand the Court of Special Appeals affirmed Moon's convictions. Moon v. State, No. 154, September Term, 1980, per curi......
  • Lowry v. State
    • United States
    • Court of Appeals of Maryland
    • 12 Marzo 2001
    ...see, e.g., Schmerber v. California, 384 U.S. 757, 771-72, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908, 920 (1966); State v. Moon, 291 Md. 463, 473, 436 A.2d 420, 425 (1981), the Supreme Court has recognized the invasiveness of administering a blood test. Such blood tests implicate the Fourth Amendm......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT