Wyatt v. State

• Decision Date: 27 February 2003
• Docket Number: No. 2138,2138
• Citation: 817 A.2d 901,149 Md. App. 554
• Parties: Kevin WYATT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

817 A.2d 901

149 Md. App. 554

Kevin WYATT v. STATE of Maryland.

No. 2138, Sept. Term 2001.

Court of Special Appeals of Maryland.

February 27, 2003.

Richard Winelander, Baltimore, for appellant.

Celia A. Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both of Baltimore, and Joseph I. Cassily, State's Attorney for Harford County of Bel Air, on the brief), for appellee.

Argued before MURPHY, C.J., JAMES R. EYLER, RAYMOND G. THIEME, JR., (Ret., specially assigned), JJ.

JAMES R. EYLER, Judge, Retired, specially assigned.

On November 21, 2001, Kevin Wyatt, appellant, was convicted by a jury in the Circuit Court for Harford County of driving while under the influence of alcohol, in violation of section 21-902(b) of the Maryland Code's Transportation Article, for an incident that occurred on December 14, 1999. See Md.Code, Transp. § 21-902(b) (1999 Repl.Vol.). The court sentenced appellant to one year imprisonment with all but four months suspended.

The State, over objection, introduced into evidence appellant's refusal to submit to a breathalyzer test and an Advice of Rights Form (DR-15), which was given to appellant at the time of the incident and explained the consequences of appellant's refusal to submit to the test. See Md. Code, Cts. & Jud. Proc. § 10-309 (1999 Repl.Vol.); Md.Code, Transp. § 16.205.1 (1999 Repl.Vol.). The court denied appellant's request that the jury be instructed that it could not draw an inference or presumption of guilt based on appellant's refusal to take a breathalyzer test. On appeal, appellant contends that the court erred in admitting the evidence described above and in refusing to give the requested instruction. Perceiving no error, we shall affirm the judgment of the circuit court.

Factual Background

At 1:30 in the morning on December 14, 1999, Officer Jeffrey Knight of the Bel Air Police Department observed a vehicle, operated by appellant, driving erratically. Officer Knight watched as the vehicle swerved between the right and left lanes, drove above the speed limit, and drove in the lane facing oncoming traffic. Officer Knight initiated a traffic stop because, based on his experience and his observations, he believed that the driver was under the influence of alcohol or drugs. Once he approached the vehicle, Officer Knight detected that the driver, appellant, emitted a strong odor of alcohol. The driver did not comprehend the officer's repeated request to produce his registration card, and when Officer Knight asked how much alcohol he had had to drink, appellant responded that he had had three or four beers.

Officer Knight then asked appellant to get out of the car to perform standardized field sobriety tests. He observed that appellant was unsteady on his feet, using the car door to keep his balance, and that appellant's eyes were bloodshot. When Officer Knight began to administer the horizontal gaze nystagmus test, appellant declared, "I refuse, I absolutely refuse to take any tests. Arrest me, whatever, but I am not taking any tests." Appellant was arrested, transported to the police station, and advised of his right to submit to a breath test for alcohol according to the standard form DR-15. After being informed of his rights, appellant refused to submit to the breathalyzer test.

On November 20, 2001, appellant appeared in the Circuit Court for Harford County to be tried for driving while intoxicated and driving under the influence of alcohol, in violation of section 21-902(a) and (b) of the Transportation Article. Md. Code, Transp. § 21-902(a)-(b) (1999 Repl. Vol.).¹ During the trial, appellant made a motion to exclude the testimony of his refusal to submit to a breathalyzer test. The court denied appellant's motion, reasoning that the new law was applicable because it did not create a new criminal act, but only established a new rule of evidence. Counsel renewed the objection prior to admission of this evidence and the introduction of the Advice of Rights Form DR-15. Appellant testified in his own defense, admitting that he had been speeding and weaving between lanes, that he had been at a bar for approximately six hours, and that he had been drinking, stating that he had two Bass Ales. Appellant also disputed Officer Knight's description of the weather as dry, denied that he was impaired by alcohol, and claimed that his bloodshot eyes were caused by smoke in the bar.

At the close of the case, appellant's counsel requested that the court instruct the jury that no inference or presumption of guilt arises because of appellant's refusal to submit to a breathalyzer test. When the court failed to include such an instruction, counsel took exception.

On November 21, 2001, the jury convicted appellant of driving while under the influence of alcohol and acquitted him of driving while intoxicated. Appellant noted a timely appeal to this Court.

Questions Presented

On appeal, appellant presents two main questions for our review, one of which is subdivided into four parts. First, appellant argues that the trial court erred in admitting evidence of appellant's refusal to submit to a breathalyzer test. More specifically, appellant contends that the evidence should have been excluded because (1) the amended version of section 10-309 of the Courts and Judicial Proceedings Article, which expressly permitted the admission of such evidence, is rendered unconstitutional by the ex post facto provisions of the Maryland and federal constitutions when applied to an event that occurred prior to its effective date, (2) the amended version of section 10-309 violates the self-incrimination provision of the Maryland Declaration of Rights, (3) it was not relevant to any issue in the case, and (4) its probative value was outweighed by the danger of unfair prejudice. Finally, appellant claims that the court erred in failing to instruct the jury that no inference or presumption of guilt arises because of a refusal to submit to a breathalyzer test.

Appellee argues that the court properly admitted the evidence based on its application of the amended version of section 10-309, and even if admitting such evidence was error, it constituted harmless error. In addition, appellee contends that appellant's argument pertaining to inadequate jury instructions was not preserved, and if preserved, the trial court did not err in refusing to give appellant's instruction because it did not accurately reflect the law at the time of the trial.

Discussion

Because resolution of this case depends on our determination of whether the amended version of section 10-309 was properly applied during appellant's trial, we begin by reviewing the relevant provisions prior and subsequent to the 2001 amendments. We must also review relevant case law interpreting the former version of 10-309 in order to demonstrate its meaning at the time that appellant was arrested.

In 1999, section 10-309 of the Maryland Code's Courts and Judicial Proceedings Article provided in pertinent part:

(a) Test not compulsory.—

(1) Except as provided in § 16-205.1(c) of the Transportation Article, a person may not be compelled to submit to a test or tests provided for in this subtitle. Evidence of a test or analysis is not admissible in a prosecution for violation of § 21-902 of the Transportation Article if obtained contrary to its provisions.

(2) No inference or presumption concerning either guilt or innocence arises because of refusal to submit. The fact of refusal to submit is admissible in evidence at the trial.

Md.Code, Cts. & Jud. Proc. § 10-309(a) (1999 Repl.Vol.) (emphasis added). Although the language appears to suggest that the fact of refusal was admissible, the Court of Appeals, in Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991), interpreted the two sentences of subsection (b) as permitting the admission of such evidence only where it was relevant to a material issue other than the guilt of the accused. Id. at 386-88, 587 A.2d 1102 (emphasis added). The Krauss Court reasoned that:

From the provisions of the statute, it is obvious that the Legislature recognized that the mere fact of refusal to take the Breathalyzer test was collateral to the issue of whether a driver was intoxicated or under the influence of alcohol. In other words, the refusal was not material or relevant to the issue of guilt or innocence. But, the Legislature also appreciated that in certain circumstances the fact of refusal to submit to the test may be material and relevant to collateral matters, that is, issues other than guilt or innocence, as, for example, when a defendant claims the enforcement authorities did not properly afford an opportunity to take the test. Thus, it made the refusal admissible, but subjected the admission to the restriction.

Id. at 386-87, 587 A.2d 1102. Because the defendant in Krauss did not challenge that he was properly informed as to the taking of the test and that he refused to take it, the Court concluded that his refusal had no probative value to establish guilt and was, therefore, irrelevant. Id. at 388, 587 A.2d 1102.

Between the time that the offense was committed and the time that appellant was tried, two amendments to section 10-309 took effect. The first, which became effective on October 1, 2000, simply rewrote subsection (a)(1), dividing it further into (a)(1)(i) and (a)(1)(ii), without changing any of the provision's substance. See H.B. 676, 2000 Leg., 414th Sess. (Md.2000). The 2000 amendment also divided subsection (a)(2) into (a)(2)(i) and (a)(2)(ii), making no changes to the provision's language. Id. In 2001, the General Assembly passed legislation that deleted the language "[n]o inference or presumption concerning either guilt or innocence arises because of refusal to submit." See H.B. 338 and S.B. 4, 2001 Leg., 415th Sess. (Md.2001). The preamble to the bills state:

FOR the purpose of repealing a prohibition against an inference or presumption concerning guilt or

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