State v. Werkheiser

Decision Date09 May 1984
Docket NumberNo. 93,93
Citation299 Md. 529,474 A.2d 898
PartiesSTATE of Maryland v. Robert Buck WERKHEISER. Sept. Term 1983.
CourtMaryland Court of Appeals

Ann E. Singleton, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Arthur M. Wright, Chestertown (Rasin & Wright, Chestertown, on the brief), for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ., and CHARLES E. ORTH, Jr., Retired, Specially Assigned Judge.

COUCH, Judge.

In this instance we are presented with the question whether dismissal is the appropriate sanction, in a criminal case involving driving while intoxicated or under the influence of alcohol, where the provisions of Maryland Code (1977, 1983 Cum.Supp.), Transportation Article, § 16-205.1(d)(1)(iii), 1 were not complied with. We conclude dismissal not to have been appropriate and therefore reverse.

Pursuant to Maryland Rule 828g, the parties agreed to a Statement of Facts.

On October 22, 1982, appellee, Robert Buck Werkheiser, was involved in a single car accident on State Route 305 in Queen Anne's County, Maryland. Maryland State Trooper Frank Ford investigated the accident. He had reasonable grounds to believe that Werkheiser was driving or attempting to drive while intoxicated or under the influence of alcohol due to the odor of alcohol on Werkheiser and in his car.

Werkheiser was transported to a hospital in Easton for medical treatment for a gash in his head. He was accompanied by Trooper Ford.

Werkheiser was subsequently charged in the Circuit Court for Queen Anne's County with driving or attempting to drive while under the influence of alcohol in violation of § 21-902(b) of the Transportation Article. On June 30, 1983, Werkheiser filed a motion in limine seeking dismissal of the charges because of the state's failure to comply with the terms of Transportation Article, § 16-205.1(d)(1), and obtain a blood chemical test from Werkheiser while he was unconscious. A hearing was held on Werkheiser's motion on July 5, 1983; the parties stipulated to certain facts.

It was stipulated that Werkheiser was 'unconscious or otherwise incapable of refusing to take a chemical test' under § 16-205.1(d)(1). It was further stipulated that blood was not drawn because Trooper Ford was 'not aware that he was required to do so; that he felt that he was doing everything that he was required to do under the law.' Ford would have testified that he contacted his sergeant who told him that 'if the hospital takes a test of his blood as part of treating him, you can later summons that, otherwise, that's the only thing you can do.' It was further stipulated that Trooper Ford 'did not direct a qualified medical person to withdraw blood for a chemical test to determine the alcohol content' of Werkheiser's blood, a procedure which 'would not have jeopardized' his health or well being.

The trial judge observed that the issue was one of first impression in Maryland and ruled that because the state failed to comply with the mandatory requirements of § 16-205.1(d)(1) the state had violated Werkheiser's constitutional right to due process, and that the only appropriate sanction was dismissal of the charging document. In accordance with this ruling, Judge Carter dismissed the charges against Werkheiser on July 5, 1983.

The state poses a single question for our consideration, "Whether dismissal of the charging document was the appropriate sanction for [its] non-compliance with Transportation Article[,] § 16-205.1(d)(1)(iii)."

The state argues that the duty imposed on police officers by this section is not mandatory but, rather, is only directory. Alternatively, the state argues that, in any event, the sanction of dismissal, for non-compliance, was inappropriate. Not surprisingly, the appellee argues that the duty is mandatory and dismissal is the proper sanction. All parties agree, as they must, that there is no sanction provided for in the statute.

We agree with the trial court that the use of the word "shall" in this statute imposes a mandatory duty upon police officers. As we have stated repeatedly: "Under settled principles of statutory construction, the word 'shall' is ordinarily presumed to have a mandatory meaning." State v. Hicks, 285 Md. 310, 334, 403 A.2d 356, 369 (1979). However, the mandatory nature of the language does not indicate the sanction to be applied for violation of the statute. Therefore, the Court must consider the purpose and policy of the statute in order to determine the appropriate sanction, if any, to be applied. The legislative purpose of this statute will not be advanced by holding dismissal as the appropriate sanction.

The Maryland General Assembly has enacted laws to enhance the ability of prosecutors to deal effectively with the problem of drunk drivers on our state highways. The provisions relating to prosecutions for driving while intoxicated or under the influence of alcohol, and alcohol related accidents, are contained in Maryland Code (1977, 1983 Cum.Supp.), Transportation Article, §§ 16-205--205.2 [hereinafter cited as Transp. Art.], as well as Maryland Code (1973, 1980 Repl.Vol., 1983 Cum.Supp.), Courts & Judicial Proceedings, §§ 10-302--309 [hereinafter cited as Courts Art.]. 2 Because a blood alcohol test is a widely accepted method of proof in prosecutions for alcohol related offenses, and because of drivers' resistance to such tests, states have adopted "implied consent" laws. Annot. 72 A.L.R.3d 325. The aforementioned statutes contain Maryland's "implied consent" provisions. 3

The Transp. Art., § 16-205.1(a), provides:

"Implied consent to chemical test.--Any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State is deemed to have consented, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a chemical test to determine the alcohol content of his blood if he should be detained on suspicion of driving or attempting to drive while intoxicated or while under the influence of alcohol."

However, the test is not compulsory and under certain circumstances a driver may refuse. Courts Art., § 10-309; Transp. Art., § 16-205.1(b). As a consequence of refusing to submit to a chemical test, the driver is subject to administrative sanctions. Id. The driver is to be advised of these administrative penalties by the detaining officer. Transp. Art., § 16-205.1(b).

In a case, such as the one before this Court, where the driver is unconscious, the police have authority to direct that the test be administered. Courts Art., § 10-305(b); Transp. Art., § 16-205.1(d)(1)(iii). The statutes permit the test to be administered by appropriate medical personnel because the driver is deemed not to have withdrawn his consent. Subsection (d)(2) underscores that the unique feature of (d)(1)(iii) is the continuing implied consent while the driver is unconscious, as it provides that an individual who "regains consciousness or otherwise becomes capable of refusing" the test, before it is administered, may then refuse the test, Transp. Art., § 16-205.1(d)(2), unless subsection (c) is applicable, in which case the chemical test is required. 4 Those persons involved in an accident resulting in the death of another are not given the option of refusing to submit to testing.

The statutory scheme, as set forth, illustrates that the particular section at issue here, § 16-205.1(d), was enacted to ensure that an injured driver would receive immediate medical treatment; 5 and to permit a chemical blood test in the absence of actual consent, where the officer had a reasonable basis to suspect the driver was intoxicated or under the influence of alcohol. Stated simply--this section "implies" the necessary consent. See also Courts Art., § 10-305(b). The only section that requires a chemical test is subsection (c), and that requirement is focused on the driver; the driver is required to submit to a test. Moreover, subsection (d) does not mandate that the test be administered, it merely requires the police officer to "direct" a qualified person to withdraw blood for the purpose of administering the test. There is no requirement that the person so directed act; whereas subsection (c) directs the medical personnel to perform the test where the death of another is involved, and provides liability protection for those who do perform the test. We compare these two subsections of Transp. Art., § 16-205.1, to illustrate the intended operation of the statute. The legislature has evidenced a strong interest in providing prosecutors with scientific evidence of blood alcohol levels. This is especially true in cases where an accident results in death. However, there is no indication, and the legislature obviously intended none, to suggest that in any prosecution for an alcohol related offense the chemical test is a prerequisite to a prosecution.

In the instant case the officer had reasonable suspicion that the driver was intoxicated or under the influence of alcohol. The driver was unconscious or incapable of refusing the test. However, the police officer did not direct the medical personnel to administer the test. Appellee contends this is fatal to a prosecution for driving while intoxicated. This may be true insofar as a successful prosecution is concerned, as where the prosecutor has no other relevant evidence to present to a trier of fact, which may result in an acquittal or a finding of not guilty. However, in this case the charges were dismissed improperly.

In the recent past, we have had occasion to consider cases involving the effect of Transp. Art., § 16-205.1, and Courts Art., §§ 10-302--309, on prosecutions for alcohol related automobile accidents. See State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981), and State v. Moon, 291 Md. 463, 436 A.2d 420 (1981). Both of...

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31 cases
  • Kendall v. State
    • United States
    • Maryland Court of Appeals
    • November 27, 2012
    ...drug or controlled dangerous substance content shall be a blood specimen.” CJ § 10–305(b). Defense counsel cited State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984), to support her motion for a judgment of acquittal because the State failed to obtain a blood test from Petitioner. Werkheis......
  • Parren v. State
    • United States
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    • September 1, 1986
    ...considering the consequences of the violation of a statute which does not by its terms state those consequences. In State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984), a police officer had failed to obtain a blood chemical test within a statutorily prescribed time limit from a person who......
  • Lowry v. State
    • United States
    • Maryland Court of Appeals
    • March 12, 2001
    ...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 resul......
  • Montgomery County v. McDonald
    • United States
    • Maryland Court of Appeals
    • October 16, 1989
    ...A., 312 Md. at 490-493, 540 A.2d at 814-815; In re Keith W., 310 Md. 99, 102-107, 527 A.2d 35, 37-39 (1987); State v. Werkheiser, 299 Md. 529, 533-536, 474 A.2d 898, 900-902 (1984). In the absence of an express sanction, the purpose of the statute is determinative of the sanction, if any, t......
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1 books & journal articles
  • Offenses
    • United States
    • Maryland State Bar Association Practice Manual for the Maryland Lawyer (MSBA) Chapter Fifteen Traffic Law
    • Invalid date
    ...State, 348 Md. 104, 702 A.2d 741(1997), overruled in part by Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005).[171] State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984).[172] 363 Md. 357, 768 A.2d 688 (2001). [173] Toney v. State, 140 Md. App. 690, 782 A.2d 383 (2001). [174] Md. Rule 4-3......

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