Lowry v. State

BELL, Chief Judge,

dissenting.

Assuming that Maryland Code (1977, 1999 Repl.Vol., 2000 Cum.Supp.), § 16-205.1 of the Transportation Article generally imposes “a mandatory duty upon officers to obtain a test for alcohol concentration when a detained person consents to the taking of [the] test,” the majority holds nevertheless that the appropriate remedy to cure the error of failing to do so is, rather than a missing evidence instruction given by the court, solely to allow counsel to argue to the fact finder that, had the blood test been given, it would have produced a result favorable to the petitioner. 363 Md. 357, 360 , 768 A.2d 688, 689 (2001). The majority thus affirms the judgment of the Circuit Court for Howard County and, therefore, the petitioner’s conviction. The concurring opinion embraces this holding and goes one step further, opining that the mandated test itself *394 need not produce a percentage reading, ie., one that is evidence of intoxication or sobriety. Id. at 377 , 768 A.2d at 699 (Cathell, J., concurring). Consequently, the concurring opinion, reasoning that inadmissible results are not missing results, rejects the argument, proffered by the petitioner, Mariellen Lowry, that the failure of the police to obtain an admissible percentage reading in her case required the State then to administer a blood test for alcohol concentration. Id. at 377 , 768 A.2d at 699 . I disagree with both the holding of the majority opinion and with the reasoning of the concurrence.

Ordinarily, I would address the majority opinion and its contentions first and then those of the concurring opinion. In this case, however, logically, and for ease of reading, I will discuss the majority opinion and the concurring opinion in reverse order. Answering the concurring opinion allows for the development and explanation of the premise, ie., theory of the case, on which the jury instruction I contend is required to be given is built.

Though not compellable, see § 16-205.1(b)(l), any person who drives in this State and is stopped and detained under suspicion of driving under the influence or while intoxicated is deemed to have consented, subject to the provisions of Maryland Code (1974, 1998 Repl.Vol., 2000 Cum.Supp.), §§ 10-302 — 10-309 of the Courts and Judicial Proceedings Article, to take a test to determine alcohol concentration. § 16-205.1(a)(2). If the person consents, after advice of the consequences of refusal, § 16-205.1(b)(2)(iii), § 10-305 of the Courts Article prescribes the kind of test that will be given. It provides:

“(a) The type of test administered to the defendant to determine alcohol concentration shall be the test of breath except that the test of blood shall be the type of test administered if:

‘(1) The defendant is unconscious or otherwise incapable of refusing take a test to determine alcohol concentration;

*395 (2) Injuries to the defendant require removal of the defendant to a medical facility; or

(3) The equipment for administering the test of breath is not available.’

“(b) The type of specimen obtained from the defendant for the purpose of a test or tests to determine drug or controlled dangerous substance content shall be a blood specimen.

“(c) Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of test refusal shall be deemed not to have withdrawn consent.”

Thus, the preferred test for alcohol concentration is the breath test and it will be given unless the defendant is unable to refuse to take a test by reason of unconsciousness or other condition, his or her injuries require that he or she be taken to a medical facility, or the equipment for administering the test is unavailable. Section 10-307(b)-(f) of the Courts Article addresses the effect of the intoxication test results:

“(b) If at the time of testing a person has an alcohol concentration of 0.05 or less, as determined by an analysis of the person’s blood or breath, it shall be presumed that the defendant was not intoxicated and that the defendant was not driving while under the influence of alcohol.

“(c) If at the time of testing a person has an alcohol concentration of more than 0.05 but less than 0.07, as determined by an analysis of the person’s blood or breath, this fact may not give rise to any presumption that the defendant was or was not intoxicated or that the defendant was or was not driving while under the influence of alcohol, but this fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

“(d) If at the time of testing a person has an alcohol concentration of at least 0.07 but less than 0.10, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the defendant was driving while under the influence of alcohol.

*396 “(e) If at the time of testing a person has an alcohol concentration of 0.02 or more, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that the defendant was driving with alcohol in the defendant’s blood.

“(f) If at the time of testing a person has an alcohol concentration of 0.02 or more, as determined by an analysis of the person’s blood or breath, it shall be prima facie evidence that a defendant was driving in violation of an alcohol restriction under § 16-113 of the Transportation Article.” 1

To be sure, therefore, test results showing a high blood alcohol content would have been extremely prejudicial to the petitioner, but it was likewise altogether possible that the opposite result could have resulted in a reading most favorable to her.

The petitioner agreed to take a test and breath tests were given. Unfortunately, the breathalyzer did not produce an analysis of the petitioner’s breath admissible in evidence. Although the test of the first of the petitioner’s breath samples produced an analysis that purported to measure the petitioner’s blood alcohol, subsequent tests of her breath samples either failed to corroborate the first analysis or failed to produce any analysis at all. To be effective, two breath samples must be analyzed and a reading must be obtained as to both. This is required, as the officer administering the test testified, to ensure that the breathalyzer is in proper working order. A reading was obtained only as to the first of the petitioner’s breath samples. The result from the second was *397 “insufficient breath” and from the next two, “interfering substance.” Contrary to the concurring opinion’s contention that the petitioner “failed to produce a sufficient quantity of breath to be tested,” 363 Md. at 381 , 768 A.2d at 701 , the State has not contended, and the record does not reflect, that the petitioner sabotaged the test, or was in any way at fault for the breathalyzer’s inability to register an admissible result.

Although aware that, at no time, did the breathalyzer produce results from two samples so as to be able to compare them for the purpose of insuring that the instrument was working properly, the concurring opinion rejects the petitioner’s argument that the breathalyzer was unavailable and, therefore, that she was entitled to have a blood test, asserting, to the contrary, that the breathalyzer “performed as it was designed to do.” Id. at 380 , 768 A.2d at 700 . More particularly, it says: “[t]he readings that the machine displayed were consistent with its programming and function — it merely was not providing percentage results as to the sobriety or intoxication of petitioner.” Id. at 382 , 768 A.2d at 701 .

To emphasize the point that inadmissible results are contemplated, the concurring opinion recalls that the second sample tested, following a test producing a reading of 0.173, produced a reading of “insufficient breath,’’and then quotes from the Regulations of the Toxicologist Post Mortem Examiners Commission State of Maryland Regarding Tests of Breath and Blood for Alcohol (October 1, 1995) at 15, as follows:

“ ‘The test sequence is now completed and the results are printed. If the subject fails to complete the required test sequence by either not providing sufficient breath samples as indicated by the instrument or failing to give samples when directed to do so by the Operator, then the test shall be considered incomplete and shall be recorded in the State of Maryland Alcohol Testing Log as a refusal.’ ”

Id. at 382-83 , 768 A.2d at 701-02 . The concurring opinion states that the petitioner did not produce sufficient breath to complete the test, thus, even though there is neither evidence *398 nor contention to support it, apparently blaming the petitioner for the failure of the machine to corroborate the first reading. It relies also on Hyle v. Motor Vehicle Admin., 348 Md. 143 , 702 A.2d 760 (1997).

The concurring opinion is simply wrong. Contrary to the concurring opinion’s assertion that the instrument has not been shown to be operating other than properly, the results of the breathalyzer’s operation with respect to the testing of the petitioner’s breath for alcohol concentration are proof positive that the breathalyzer in this case was not “in proper working order.” The purpose of a breathalyzer is to measure the alcohol content of a person’s breath. See § 10-302 of the Courts Article, which provides:

“In a prosecution for a violation of a law concerning a person who is driving or attempting to drive a vehicle in violation of § 16-113, § 16-813, or § 21-902 of the Transportation Article, or in violation of Article 27, § 388, § 388A, or § 388B of the Code, a test of the person’s breath or blood may be administered for the purpose of determining alcohol concentration and a test or tests of 1 specimen of the person’s blood may be administered for the purpose of determining the drug or controlled dangerous substance content of the person’s blood.”

In Borbon v. Motor Vehicle Admin., 345 Md. 267, 279 , 691 A.2d 1328, 1334 (1997), we stated that “[t]he General Assembly’s purpose for requiring approval of the test equipment was to gain some assurance that the equipment used would measure with reasonable accuracy the breath alcohol of licensees who were believed to have committed alcohol related driving violations.” See also § 10-307(a)(1) (“In a proceeding in which a person is charged with a violation of Article 27, § 388, § 388A, or § 388B of the Code, or with driving or attempting to drive a vehicle in violation of § 16-113, § 16-813, or § 21-902 of the Transportation Article, the amount of alcohol in the person’s breath or blood shown by analysis as provided in this subtitle is admissible in evidence and has the effect set forth in subsections (b) through (e) of this section.”).

*399 The breathalyzer is working properly, therefore, when it produces a percentage result that measures the defendant’s breath alcohol concentration. When it does not produce such a result, it is not working properly. In this context, as the petitioner submits, “ ‘available’ means ‘capable of producing meaningful results from the breath of the defendant.’ ” In short, therefore, a machine that does not produce, or is incapable of producing, the results it was designed to produce serves no useful purpose and is, thereby, rendered unavailable for purposes of § 10-305. That is simply a matter of common sense and logic.

The logic is even more compelling when it is recalled that the General Assembly deemed alcohol concentration tests extremely important, so much so that it sought by the statutory scheme devised to “encourage! ] drivers to take the test and, consequently, facilitate[ ] their prosecution.” Motor Vehicle Admin. v. Chamberlain, 326 Md. 306, 313 , 604 A.2d 919, 922 (1992), citing Motor Vehicle Admin. v. Shrader, 324 Md. 454, 464 , 597 A.2d 939, 944 (1991). Additional support is provided by the fact that, in addition to refusal to take the test, the statute sanctions failing the test with a reading of 0.10 or better. See § 16-205.1(b). 2

*401 As indicated, to be admissible, a first reading must be corroborated by a second reading. A result of “insufficient breath” does not corroborate a reading of 0.173, such that one would have confidence in the operation of the breathalyzer. Nor do two “interfering substances” readings suggest that the machine is working properly. When a machine designed to measure alcohol content of the breath requires corroboration and even though the defendant is cooperating and not sabotaging the test, the corroboration cannot be achieved, that machine is not working properly. That its instructions and operation contemplate those instances when the machine may not operate properly does not mean that those instances of improper operation are, or should be treated as, a normal occurrence. Indeed, following the concurring opinion’s reasoning to its logical conclusion, a breathalyzer that gives some reading, even though the reading does not, consistent with its purpose, measure the alcohol content of the breath of the person being tested, is working properly and is therefore available; there never could be an inoperable machine. That is absurd. 3 Furthermore, it renders § 10-305(a)(3), the statutory allowance for a blood test, absolutely meaningless.

The passage from the Regulations of Toxicologists is not at all reflective of what occurred in this case. The situation addressed in the Regulations is one in which the defendant *402 fails to cooperate and, in fact, sabotages the test. 4 In that situation, there is no question of whether the test has been given properly or whether the machine is working properly; because of the defendant’s actions, the test is treated as if it was refused. By contrast, here the petitioner cooperated and the State does not even contend that she did anything to cause the machine to produce the results that it did. Certainly, there has not been a determination that the petitioner refused the test. 5

Even in the case in which there is an allegation that the defendant refused to cooperate and, in fact, sabotaged the test, more than a bald allegation to that effect or a mere machine reading of “insufficient breath” is required to establish the fact. In Borbon, supra, the issue was “whether a result of ‘insufficient breath’ reported by a breath alcohol testing device suffices, in and of itself, to prove that the motorist refused a breath test.” 345 Md. at 269 , 691 A.2d at 1329 . We held that it did not. Noting, “at least theoretically, that a person does not violate an implied consent law if that person is unable to produce a sufficient breath specimen for testing purposes due to physical disability or other cause not involving the volition of the person being tested,” id. at 278 , *403 691 A.2d at 1333 -34 (citing R.G. Donaldson, Annotation, Sufficiency of Showing of Physical Inability to Take Tests for Driving While Intoxicated to Justify Refusal, 68 A.L.R.4th 776 (1989); Nichols § 20:29, at Chap. 20—Pages 94-97), we concluded:

“In the instant matter the printout reporting insufficient breath does not indicate whether Borbon was unwilling or unable to produce the required volume of deep lung air. Absent any other evidence in the record bearing on the point, and, absent a shifting of the burden of proof by a statute or authorized regulation, the ordinary rule applies, i.e., the MVA, as the proponent of suspending Borbon’s license, had the burden of establishing that there had been a refusal by conduct.”

345 Md. at 279-80 , 691 A.2d at 1334 . We pointed out that in that case, there was no such other evidence, stating:

“In the matter before us, the statements of the arresting officer and of the technician do not include any facts observed by them that tend to support the conclusion of a test refusal. For example, if Borbon had no apparent health problems, a statement to that effect might well have been enough to tip from equipoise and require Borbon to go forward with evidence.”

Id. at 281 , 691 A.2d at 1335 . We declined, in short, to “confer on the machine the AL J’s function of determining whether the MVA has made out enough of a case of refusal to require the licensee to produce evidence.” Id. at 283 , 691 A.2d at 1336 .

The concurring opinion’s reliance on Hyle is also misplaced. There, the defendant, having agreed to take a breath test, refused to take a blood test when it was determined that, although the equipment was physically present and, therefore, available, there was no qualified technician available to administer the breath test. As a result, the defendant’s license was suspended. We granted certiorari to “determine whether it is proper to suspend a licensee’s driver’s license for refusing to take a blood test for alcohol concentration pursuant to ... § 16-205.1(b)(1)(i)2.A, where the licensee agrees to take a *404 breath test and the apparatus for administering the test is available, but no qualified person is available to administer the breath test.” 348 Md. at 145 , 702 A.2d at 761 . Construing “equipment” as used in § 10-305(a)(3), we reversed, holding that a qualified person is not encompassed within the definition of that term. Id. at 156, 702 A.2d at 766 . No issue of the operability of the equipment — the issue in this case, was raised and, so, we did not address it. In fact, because there was no one present to operate the machine, we were not able to determine whether the machine would have produced an alcohol concentration reading. Thus, it is impossible to know what the result would have been if, as here, the equipment could not or, at least, did not, produce a result that measured the defendant’s percentage of alcohol concentration. I submit that, in that event, a totally different case, with a potentially much closer result, would have been presented.

There is, however, a similarity between Hyle and this case — Hyle was not responsible for the condition that made administration of the breath test impossible. And it was not a case where circumstances not within the control of either of the parties prevented the test from being performed. As here, the responsibility for providing a machine, and one that operates properly, was the State’s.

I conclude that the breathalyzer was inoperable and thus unavailable. Consequently, the petitioner’s request for a blood test should have been honored. The question we must now face is, what is the remedy when it is not?

The majority rejects, as the remedy for breach, a jury instruction that the petitioner is entitled to the inference that, if the blood test had been conducted, the result would have been favorable to her. While it applies Patterson v. State, 356 Md. 677 , 741 A.2d 1119 (1999), id. at 373, 768 A.2d at 697 , it does so based on premises which, I have demonstrated, are false. The breath tests are inadmissible, they are the product of an improperly operating machine. Thus, the fact that the first reading indicated a high alcohol percentage concentration is meaningless without corroboration of the machine’s proper *405 functioning, corroboration that has yet to be supplied. There is no evidence that the petitioner did anything but cooperate with the officer administering the test. In any event, had there been such evidence, the State’s remedy was to declare a refusal, pursuant to the Regulations. That was not done here.

There is a difference between this case and Patterson . To be sure, the General Assembly has expressed a preference for a breath test to measure alcohol concentration. It has also recognized that, when the breath test equipment is unavailable, a blood test should be given. That is the situation with which we are presented in this case. Surely, the jury is entitled to be apprised of the situation, to be told that the State, pursuant to legislative mandate, should have tested the petitioner’s breath, but did not due to the breathalyzer failing to produce a breath alcohol analysis and of the circumstances in which a blood test must be given instead.

Maryland Rule 4-325(c) provides in pertinent part: “[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.... The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Thus, the general rule regarding instructions to the jury has two aspects: (1) the instruction must correctly state the law, and (2) that law must be applicable in light of the evidence before the jury. We have said that “ ‘[a] litigant is entitled to have his theory of the case presented to the jury, but only if that theory of the case is a correct exposition of the law and there is testimony in the case which supports it.’ ” Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651, 655 (1979), quoting Levine v. Rendler, 272 Md. 1, 13 , 320 A.2d 258, 265 (1974); Fowler v. Benton, 245 Md. 540, 548-549 , 226 A.2d 556, 562 , cert. denied, 389 U.S. 851 , 88 S.Ct. 42 , 19 L.Ed.2d 119 (1967); Dorough v. Lockman, 224 Md. 168, 171 , 167 A.2d 129, 131 (1961).

In my view, the evidence in this case supports the petitioner’s theory of the case — the breathalyzer machine was inoperable and thus unavailable, giving rise to her right to a blood *406 test pursuant to § 10-305(a)(3). Moreover, I believe that the petitioner’s requested instruction accurately stated the law. 6 The court should have, at the petitioner’s request, so instructed the jury. The failure to do so, even though allowing the petitioner to argue the matter, is tantamount to affording her no remedy at all, and may go so far as to penalize the petitioner for events beyond her control.

In Maryland, arguments of counsel are not evidence, a fact of which juries regularly are reminded by pointed jury instructions to that effect. On the other hand, it is at least as well settled in this State that the focal point — the most important personality — in a jury trial is the trial judge, to whom the jury more likely than not will defer. See State v. *407 Hutchinson, 287 Md. 198, 206 , 411 A.2d 1035, 1040 (1980) (“The trial judge is the central figure at trial, having the chief responsibility of steering the jury through the maze of evidence. In such role, the trial judge may influence the jury by the inflection of his voice, his words, his conduct and his assessment of the evidence, if known.”). Consequently, it is axiomatic that the jury will pay greater attention to what the trial judge instructs than to any of the arguments a defendant’s counsel might make. It is not surprising, therefore, that this Court has held that arguments of counsel cannot effectively substitute for instructions by the court. Williams v. State, 322 Md. 35, 47 , 585 A.2d 209, 215 (1991) (quoting Taylor v. Kentucky, 436 U.S. 478, 488-89 , 98 S.Ct. 1930, 1936 , 56 L.Ed.2d 468, 477 (1978)). See also Simmons v. South Carolina, 512 U.S. 154, 173 , 114 S.Ct. 2187, 2198-99 , 129 L.Ed.2d 133, 141 (1994) (Souter and Stevens, JJ, concurring) (quoting Boyde v. California, 494 U.S. 370, 384 , 110 S.Ct. 1190, 1200 , 108 L.Ed.2d 316, 331 ); Johnson v. State, 325 Md. 511, 519 , 601 A.2d 1093, 1096-97 (1992).

I dissent.

. Maryland Code (1974, 1998 Repl.Vol., 2000 Cum.Supp.), § 10-308 makes clear that other evidence, in addition to breath tests, are admissible to prove a defendant's intoxication or being under the influence of alcohol:

"(a) The evidence of the analysis does not limit the introduction of other evidence bearing upon whether the defendant was intoxicated or whether the defendant was driving 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 cannot drive a vehicle safely, or while under the influence of a controlled dangerous substance.”

. That section provides, as relevant:

“(b)(1) Except as provided in subsection (c) of this section, a person may not be compelled to take a test. However, the detaining officer shall advise the person that, on receipt of a sworn statement from the officer that the person was so charged and refused to take a test, or was tested and the result indicated an alcohol concentration of 0.10 or more, the Administration shall:

'(i) In the case of a person licensed under this title:

1. For a test result indicating an alcohol concentration of 0.10 or more at the time of testing:

A. For a first offense, suspend the driver's license for 45 days; or

B. For a second or subsequent offense, suspend the driver’s license for 90 days; or

“(2) Except as provided in subsection (c) of this section, 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 a motor vehicle while intoxica! ed, while under the influence of alcohol, while so far under the influence of any drug, any combination of *400 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, and who is not unconscious or otherwise incapable of refusing to take a test, 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, including ineligibility for modification of a suspension or issuance of a restrictive license under subsection (n)(l) or (2) of this section, and for test results indicating an alcohol concentration of 0.10 or more at the time of testing.'

"(3) If the person refuses to take the test or takes a test which results in an alcohol concentration of 0.10 or more at the time of testing, the police officer shall:

‘(i) Confiscate the person’s driver’s license issued by this State;

(ii) Acting on behalf of the Administration, personally serve an order of suspension on the person;

(iii) Issue a temporary license to drive;

(iv) Inform the person that the temporary license allows the person to continue driving for 45 days if the person is licensed under this title;

(v) Inform the person that:

1. The person has a right to request, at that time or within 10 days, a hearing to show cause why the driver’s license should not be suspended concerning the refusal to take the test or for test results indicating an alcohol concentration of 0.10 or more at the time of testing, and the hearing will be scheduled within 45 days; and

2. If a hearing request is not made at that time or within 10 days, but within 30 days the person requests a hearing, a hearing to show cause why the driver’s license should not be suspended concerning the refusal to take the test or for test results indicating an alcohol concentration of 0.10 or more at the time of testing will be scheduled, but a request made after 10 days does not extend a temporary license issued by the police officer that allows the person to continue driving for 45 days;

(vi) Advise the person of the administrative sanctions that shall be imposed in the event of failure to request a hearing, failure to attend a requested hearing, or upon an adverse finding by the hearing officer; and

(vii) Within 72 hours after the issuance of the order of suspension, send any confiscated driver’s license, copy of the suspension order, and a sworn statement to the Administration, that states:

1. The officer had reasonable grounds to believe that the person had been driving or attempting to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State 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 *401 influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title;

2. The person refused to take a test when requested by the police officer or the person submitted to the test which indicated an alcohol concentration of 0.10 or more at the time of testing; and

3. 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)(l) or (2) of this section.' ”

. It is equally, or more, absurd if, as it may be construed, the concurring opinion is saying that mere physical presence of the machine is enough, whether or not it is operable or even capable of operating. As the petitioner points out, "[s]urely, even the State would not urge that an Intoximeter 3000, [physically] present but inoperative due to a power outage ... was 'available' within the meaning of the statute.”

. The concurring opinion suggests that, if a blood test is mandated whenever a breathalyzer is inoperable, rather than simply not available physically, there would be provided an incentive for the defendant to be less than cooperative. See 363 Md. 379 , 768 A.2d 700 (2001). It is precisely this concern that the passage quoted from the Toxicologist manual addresses and for which it provides a clear and decisive answer. That is not, however, this case.

. Section III.C.3 of the Regulations of the Toxicologist Post Mortem Examiners Commission State of Maryland Regarding Tests of Breath and Blood for Alcohol (October I, 1995) states in relevant part:

"The instrument will only accept a proper deep lung sample. If the sample is insufficient, the instrument automatically aborts the sample, goes into a purge cycle, then a blank cycle and requests another breath sample. The instrument will allow 3 attempts, with 3 minutes per attempt; otherwise, it is an incomplete test and the instrument will discontinue any further testing.”

Thus, it is quite clear that there could not have been a refusal under the facts of this case.

. The petitioner requested an instruction as follows:

"When a person is detained on suspicion of driving while under the influence of alcohol, Maryland law places a mandatory duty upon the detaining officer to request the person submit to a test to determine alcohol concentration. This person can agree to submit to a test or refuse. (Transportation Article § 16-205.1). When a person consents to the administration of a test to determine alcohol concentration, Maryland law requires that the test to be administered shall be a test of breath unless the person is unconscious or otherwise incapable of refusing to take a test to determine alcohol concentration, or the person has injuries which require their removal to a medical facility, or the equipment to administer the breath test is unavailable. Under those circumstances Maryland law provides that a blood test shall be administered. (Courts & Judicial Proceedings § 10-305).

"Maryland law places a mandatory duty upon a police officer to administer a test for alcohol concentration when a person consents to such a test. If the officer fails to comply with that statutory duty the courts in this state have held the person arrested is entitled to an inference at trial that had the test been administered, the results of that test would have been favorable to that person. ([State v. Werkheiser], 299 Md. 529 , 474 A.2d 898 (19[8]4))."

The second paragraph of the requested instruction addresses the proper inference to be drawn from the failure of the State to provide the petitioner with a blood test. Thus, under Patterson v. State, 356 Md. 677 , 741 A.2d 1119 (1999), it might go too far. No matter, that portion of the instruction that presented the petitioner's theory of the case and informed the jury as to the applicable law should have been given. It is implicit in the petitioner’s theory that the breathalyzer, by being inoperable, was unavailable. At the very least, it seems to me, the jury was entitled to consider in its deliberations whether the breathalyzer was in fact operable. It could not do so, obviously, unless it was apprised of the issue.