State v. Weisbrod

• Decision Date: 12 October 2004
• Docket Number: No. 1925,1925
• Citation: 859 A.2d 664,159 Md. App. 488
• Parties: STATE of Maryland v. Timothy WEISBROD.
• Court: Court of Special Appeals of Maryland

859 A.2d 664

159 Md. App. 488

STATE of Maryland v. Timothy WEISBROD.

No. 1925, Sept. Term, 2003.

Court of Special Appeals of Maryland.

October 12, 2004.

Celia Anderson Davis (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellant.

Leonard R. Stamm (Andrea Hayduk, Goldstein & Stamm, P.A., on the brief), Baltimore, for Appellee.

Panel: DEBORAH S. EYLER, KRAUSER, CHARLES E. MOYLAN, Jr. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned).

In dismissing two alcohol-related charges against a defendant, the trial judge vastly expanded the rights, statutory and constitutional, enjoyed by one charged with such offenses. On this appeal, we agree with the State that, at three separate levels of analysis, the dismissal was erroneous.

The Motion to Dismiss

The appellee, Timothy Weisbrod, was charged with five offenses: 1) driving under the influence of alcohol; 2) driving while impaired by alcohol; 3) driving on a suspended license; 4) failure to display a driver's license on demand; and 5) exceeding the speed limit. In the Circuit Court for Prince George's County, the appellee waived his right to trial by jury. Following a court trial on three of those five charges, he was found not guilty of driving on a suspended license, but guilty of both 1) failure to display a driver's license on demand and 2) exceeding the speed limit. This appeal does not concern any of those three verdicts.

Immediately prior to trial, however, the appellee moved to dismiss the two charges of 1) driving under the influence of alcohol and 2) driving while impaired by alcohol. The circuit court granted the motion. The State appeals that dismissal. Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(1).

The appellee was arrested by the Maryland State Police at 2:48 A.M. on May 17, 2002, for driving at 65 miles per hour in a 50 mile per hour zone. He failed to present a driver's license when requested by the trooper to do so. He was also suspected of driving under the influence of alcohol. After being taken into custody, he was read the standardized DR-15 Advice of Rights. He refused to consent to a breath test for alcohol. According to the police, the appellee did not exhibit any difficulty in understanding the advice nor did he request an attorney. In arguing for a dismissal of the two alcohol-related charges, the appellee claimed that the troopers had failed to advise him of his alleged right, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 10-304(e), to have his own physician conduct a test on him for blood alcohol content.

The Trial Court's Ruling

The trial judge 1) accepted the defense argument that there was such a right, 2) concluded that due process of law demanded that the police affirmatively advise a suspect of such a right but that they failed to do so, and 3) determined that the appropriate sanction for such a due process violation was the dismissal of the charges.

Our appraisal of the dismissal will be made at three different levels of inquiry. Our ground level inquiry will be whether the appellee even possessed the statutory right to an independent test, with respect to which the police failed to inform him. Our second level of inquiry will assume, purely arguendo, the existence of such a right and then inquire whether, positing such a right, there is an affirmative obligation on the police, either statutory or constitutional, to inform a defendant about such a right. Our third level of inquiry will assume, again purely arguendo, both 1) the existence of the right and 2) the affirmative obligation to inform, and then inquire whether, positing a failure to inform, the appropriate sanction should be the dismissal of the charges.

A. The Existence of the Right

The trial court, in rendering its opinion, essentially assumed the existence of such a right.

Defense Exhibit 3 is the advice of rights form pursuant to Transportation Article 16-205.1. It bears the signature of the defendant along with the officer, Trooper Tupper, Maryland State Police. There are several rights that are set forth in that exhibit which were presented to the defendant at the time in question.

Arguments have been presented relative to the defendant's right to have an independent chemical test, as set forth under Courts and Judicial Proceedings Article 10-304(e). The argument that has been presented by defense counsel is, one, that the defendant had a right to secure an independent blood test; two, based upon the exigency of circumstances surrounding an arrest for a stop for driving under the influence of alcohol, that there is a time element in terms of the dissipation of that alcohol from the system, which obviously is recognized by the state and which gives rise to the reason why they wish to administer the test under those circumstances within a specific time period.

The time period would also hold true based upon common sense should a defendant wish to have an independent test. And in fact the Courts and Judicial Proceedings section allows an individual to have an independent test.

The Court has heard argument from the State relative to this point. The State's assertion is that the defendant did not make a request for that independent test and, as such, there is, in essence, a waiver of that particular right.

(Emphasis supplied).

B. The Obligation to Advise

The core of the trial court's opinion was that, assuming such a right to exist, an appropriately expansive application of the due process clause would then require the police affirmatively to advise a suspect of the existence of such a right.

The Court believes that you cannot exercise a right unless you are made aware of that right in some form, either directly or circumstantially. Clearly, Defense Exhibit 3, the Advice of Rights form, could provide a provision that is consistent with the aforementioned Courts and Judicial Proceedings Article. This particular one does not.

There has been argument presented by defense counsel that language consistent with that provision appeared on the form at some point, but certainly it is not reflected on the form that is before the Court, which is the form that was presented to the defendant. Having said that, this Court does not believe that you can exercise a right intelligently unless you are made aware of that right.

The Court believes, consistent with Brosan [v. Cochran], that the due process right or the contours of a due process right are in fact flexible. The Court believes that the defendant-there has been nothing presented to suggest that the defendant was aware in some form that he had a right to that independent test.

There is nothing that has been presented relative to the argument that he was advised either directly or indirectly of that right. And if he was not, then he can't possibly exercise the appropriate intelligent right whether to submit to the chemical test that is—that was presented to him through the officer or not to submit to the test consistent with his constitutional right.

(Emphasis supplied).

C. The Sanction of Dismissal of Charges

After finding that there was no evidence to show that the appellee had been advised by the police with respect to the alleged right now being debated, the trial court uncritically applied the sanction of dismissing the charges.

The Court believes that in the absence of such evidence, that it is appropriate that the defendant's motion to dismiss be granted.

(Emphasis supplied).

Level I Analysis:

The Existence of the Right in Question

The right or rights on which the appellee builds his argument are to be found, he claims, in Maryland Code, Courts and Judicial Proceedings Article (1992 Repl. Vol.), § 10-304(e), which provides:

(e) Physician of accused's choosing; accused may request test.—The person tested is permitted to have a physician of the person's own choosing administer tests in addition to the one administered at the direction of the police officer, and in the event no test is offered or requested by the police officer, the person may request, and the officer shall have administered, one or more of the tests provided for in this section.

(Emphasis supplied).

A. Interpretive Guidelines for Reading the Section

That section is a part of a comprehensive scheme, §§ 10-301.1 through 10-309, enacted originally in 1959, to provide chemical tests of both blood and breath to determine blood alcohol content. Before turning to the meaning of § 10-304 specifically, it behooves us to get into the appropriate interpretative mindset. In State v. Moon, 291 Md. 463, 477, 436 A.2d 420 (1981), Judge Smith announced with respect to all of these sections:

Moon sees the sections here before the Court as having been enacted for the protection of an accused. We see them as concerned with the protection of the public.

(Emphasis supplied).

With specific reference to §§ 10-303 through 10-309, Judge Cole, in Willis v. State, 302 Md. 363, 369-70, 488 A.2d 171 (1985), was even more emphatic about the prosecutorial purpose of this law, facilitating the chemical testing for blood alcohol content.

The tragic circumstances of this case are a grim but graphic reminder of the terrible toll exacted by automobile accidents. The carnage caused by drunk drivers on American highways is a national problem that does not require detailed documentation. See South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 920, 74 L.Ed.2d 748, 755 (1983)

. This case glaringly demonstrates that Maryland enjoys no immunity from this lamentable problem, "[t]he magnitude of [which] ... cannot be exaggerated." Little v. State, 300 Md. 485, 504, 479 A.2d 903, 912 (1984). The General Assembly, however, has attempted to meet the considerable challenge created by this problem by enacting a series of measures to rid our highways of the drunk driver menace. These measures, some of which are decades old, are primarily designed to enhance...