Appendix — Maryland v. Moon

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C4 A425 J oFiiey"

No. a | SEP 17 (984

| ALEXANDER L. STEVag.

_..__—s- CLERK

In THE

Supreme Court of the United States

OctToBER TERM, 1984

STATE OF MARYLAND,

Petitioner,

V.

CRAIG W. MOON,

Respondent.

APPENDIX TO PETITION FOR WRIT

OF CERTIORARI

STEPHEN H. Sacus,

Attorney General of Maryland,

DexsoraH K. CHASANow,

Assistant Attorney General,

7 N. Calvert Street,

4th Floor,

Baltimore, Maryland 21202,

Telephone (301) 576-6422,

Attorneys for Petitioner.

The Daily Record Co., Baltimore, MD 21202

Retina nee

CONTENTS OF APPENDIX

Craig W. Moon v. State of Maryland,

300 Md. __, 478 A.2d 695 (1984),

Court of Appeals, No. 87, Sept. Term,

1982, filed July 19, 1084....ccccccees

Craig Wesley Moon v. State of Maryland,

Court of Special Appeals, unreported,

per curiam opinion, on remand, No. 154

Sept. Term, 1980, filed June 23, 1982.

Craig Wesley Moon v. State of Maryland,

Court of Appeals, 293 Md. 593,

445 A.2d 703 (1982) (per curiam order)

Craig Wesley Moon v. State of Maryland,

Court of Special Appeals, unreported

per curiam, No. 154, Sept. Term, 1980,

filed February 10, 1982. .cccccccccceccs

State of Maryland v. Craig Wesley Moon,

Court of Appeals, 291 Md. 463,

GOOG A. BE GES CEST) sccccvcvecs ccocecces

Craig Wesley Moon v. State of Maryland,

Court of Special Appeals, unreported,

per curiam opinion, No. 154, Sept.

Term, 1980, filed October 30, 1980....

Page

200

98

-119

CRAIG W. MOON * IN THE

Appellant * COURT OF APPEALS

v. * OF MARYLAND

STATE OF MARYLAND * Sept. Term, 1982

Appellee * No. 87

* July 19, 1984

Soe es SS Sa Se OS

OPINION

Cole, J. delivered the opinion of the Court. Smith, Rodowsky

and Menchine, J.J. dissent. Rodowsky, J. filed a dissenting

opinion in which Smith and Menchine, J.J. concur.

Once again Craig Wesley Moon has petitioned this

Court for relief. Moon's difficulties stem from his

involvement in an automobile accident of February 18, 1979,

on U.S. Route 140. Moon was travelling north when he

collided with a vehicle in the southbound lane killing the

driver and passenger of that vehicle. He was tried and

convicted of two counts of automobile manslaughter, two

counts of homicide by motor vehicle while intoxicated,

reckless driving, driving while intoxicated, negligent driving

and failing to drive on the right half of the road. The first

time this matter came to our attention the State requested

-App. 2-

our review of a per curiam opinion of the Court of Special

Appeals reversing Moon's conviction because that Court

determined that certain test results were received into

evidence in violation of Md. Code (1974, 1980 Repl. Vol.)

§310-302 to 10-309, Courts and Judicial Proceedings

Article. Moon v. State, No. 154, September Term, 1980, filed

October 30, 1980. This Court reversed the Court of Special

Appeals because we held that the blood taken from Moon and

the chemical test performed thereon were done to determine

treatment required rather than 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 curiam opinion filed February 10,

1982.

Thereafter this Court granted Moon's petition for

certiorari and issued its per curiam order

without affirmance or reversal,

with instructions to answer the

question “Were the results of

Petitioner's blood alcohol and

osmolality tests admitted into

evidence in violation of his

-App. 3-

constitutional right of

confrontation?" [Moon v. State, 293

Md. 593, 445 A.2d 703 (1982)]

On remand the Court of Special Appeals concluded that

because of their objective nature, "the admission of Moon's

blood alcohol and osmolality tests was not in violation of his

constitutional right of confrontation." Moon v. State, No.

154, September Term, 1980, per curiam opinion filed June 23,

1982, at 1.

Moon filed a petition for writ of certiorari which we

granted to consider the constitutional issue raised. Before us

Moon contends that his right of confrontation and cross-

examination was violated by admitting the hospital tests into

evidence without presenting the testimony of the technician

who performed the chemical tests. We shall recite such of

the facts as are necessary to place the issue in proper focus.

The accident occurred on February 18, 1979, at

approximately 12:30 a.m. Testimony at trial indicated that

prior to the accident Moon's car was seen proceeding

erratically at a high rate of speed. Persons arriving at the

scene noted an odor of alcohol in Moon's car. The medical

attendant accompanying Moon in a State Police helicopter to

-App. 4-

the University of Maryland Shock Trauma Unit detected an

odor of alcohol on Moon's breath. At the hospital the

attending physician ordered x-ray examinations and drug

screening tests to be performed. An osmolality test was

performed in the clinicial laboratory of the Shock Trauma

Unit and a blood alcohol test was performed in the hospital

laboratory. The osmolality reading was 347 and the blood

alcohol concentration was determined to be 0.165%. These

test results were a part of and included in Moon's hospital

records. The parties stipulated that the hospital records were

kept in the ordinary course of the hospital's business and it

was unnecessary to produce the custodian of the records to

authenticate the file as pertaining to Moon. However, the

stipulation did not extend to the admissibility of the

osmolality and blood alcohol test results. The defense

maintained that before the question of admissibility could be

resolved it had the right to confront and cross-examine the

laboratory technician who conducted the tests and obtained

the results. The State argued that these tests were routine

procedures followed by the hospital and were, therefore,

admissible under the statutory business records exception to

-App. 5-

the hearsay rule as provided in Maryland Code (1974, 1980

Repl. Vol.) $10-101, Courts and Judicial Proceedings

Article. Thus, the State persisted that the defendant's right

to confront the witnesses against him was outweighed by the

inherent trustworthiness of the records and the fact that the

laboratory technician was present and available in the

courtroom at the time of trial was of no significance. The

State, therefore, declined to call the technician. Because the

defense was unwilling to vouch for the technician's

credibility, it, too, refused to call him as a witness.

The trial court admitted the hospital records as

business records under the statute, and the State called Dr.

Yale H. Caplan, Chief Toxicologist of the State Medical

Examiner's Officer, over objection, to interpret the results of

the blood alcohol and osmolality tests. Dr. Caplan testified

that he was generally familiar with the blood testing

procedures used at University Hospital; that an osmolality

test is an objective test conducted prior to treatment to

indicate preliminarily if alcohol was involved in the condition

of the patient; that the osmolality test is not a definitive test

of alcohol but only an indicator; that a 347 osmolality reading

-App. 6-

is consistent with a blood alcohol concentration of 0.15 or

0.16%; that the blood analysis is very definitive with a high

degree of precision and accuracy; that a person with a blood

alcohol level of 0.165% will experience heightened self-

confidence, increased reaction time, decreased concentration

and impaired vision.

In addition to objecting to Dr. Caplan's testimony,

Moon claims he was denied the right to question the

authenticity of these tests because the State did not produce

the laboratory technician. Moon contends that the blood

alcohol test report is saddled with several significant

discrepancies. First, the report does not state his name but

rather contains the description "Male Doe 8515" in the blank

following the notation "patient." He admits that other

documents in the hospital report specify his name and also

contain the same number 8515. Moon further notes that the

toxicology report indicates the time of blood withdrawal as

"2-18-79 2:49 a.m."; however, the date of the report is

indicated as "2-21-79." Moon argues that without the

testimony of the technician, the trial court cannot be certain

that the report is about him or why the blood test and/or

-App. 7-

report was not made until three days after the test was

allegedly conducted. Ile maintains that the timeliness of a

report has direct bearing on its reliability. Thus, Moon

squarely poses before us the question of whether admitting

the hospital records into evidence without first producing the

laboratory technician as a witness violated his constitutional

right of confrontation.

The Sixth Amendment to the United States Consti-

tution requires that: "In all criminal prosecutions, the accused

shall enjoy the right ... to be confronted with the witnesses

against him. ..." Article 21 of the Maryland Declaration of

Rights requires that "in all orteninal prosecutions, every man

hath a right .. . to be confronted with the witnesses against

himm...." We note, therefore, that these provisions secure

"the same right." Crawford v. State, 282 Md. 210, 211, 383

A.2d 1097 (1978) (citing State v. Collins, 265 Md. 70, 288 A.2d

163 (1972)). Furthermore, because the Sixth Amendment

Confrontation Ciause has been held applicable to the states,

see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d

923 (1965), the Supreme Court's interpretation of the federal

right to confrontation is binding upon this State.

-App. 8-

Nevertheless, because the Maryland right has been a part of

our law since 1776, a brief review of both the major Maryland

and Supreme Court cases interpreting the confrontation right

where the hearsay rule has been involved is in order.

The first Maryland case in this area is Johns v. State,

55 Md. 350 (1881), in which the defendant was indicted as a

defaulter under the Act of 1872, ch. 325, providing that the

Comptroller's certificate showing the taxes due shall "be

received as prima facie evidence of such defalcation." Id. at

359. Johnson contended that admitting the certificate

violated his right to be confronted by the witnesses against

him. The Court, however, rejected this argument, noting that

this "provision of the Declaration of Rights is not to be

understood as excluding all other evidence except oral

evidence of witnesses produced in court." Id. at 360.

The Court of Appeais later discussed Johns in Jones v.

State, 205 Md. 528, 109 A.2d 732 (1954). In that case, the

defendant had been convicted of abortion. At trial, the

prosecuting witness’ testimony as to her pregnancy was

uncertain; therefore, the State sought to prove pregnancy

through the testimony of the head of the department of

-App. 9-

obstetrics and gynecology at the hospital in which the victim

had been treated after the "abortion." The doctor had never

seen the victim; however, he had examined her hospital

records and brought them to court. The defense objected to

admitting the hospital records, without referring to the right

of confrontation. Thereafter, the doctor testified about the

substance of what was contained in the records without any

reference to those records. The Court held that because the

doctor gave the impression of testifying from personal

knowledge as if he were her attending physician, permitting

such testimony was erroneous.

Even though the hospital record was neither offered in

evidence nor referred to in testimony and the defendant at

trial had failed to raise any objection based on Article 21 of

the Declaration of Rights, the Court indicated that the

hospital record would have been admissible under the business

records statute. The Court construed Johns as having "held

that the right of confrontation does not apply to documentary

evidence, and that the Legislature has the constitutional

power to change the common law rules of evidence as to what

documents are admissible and the weight to be attributed to

-App. 10-

them, even in criminal cases." Id. at 533. This sweeping

conclusion extended weil beyond the facts with which the

Court was faced in Jones. Subsequent cases have indicated

that a more thorough analysis is required in a confrontation

case than the sweeping deference to legislative alteration of

evidence law suggested in Jones.

In 1965, the Supreme Court in Pointer v. Texas, supra,

held that the Sixth Amendment right of confrontation is a

fundamental right made obligatory on the states by the

Fourteenth Amendment. In that case, Pointer and a co-

defendant were taken before a judge for a preliminary

hearing on a charge of robbery. The victim testified at this

hearing, identifying Pointer as the robber; however, neither

of the defendants was represented by counsel. The victim

moved to California and at trial the transcript of his

preliminary hearing testimony was introduced as evidence.

Pointer was convicted and the Supreme Court reversed,

holding that because the testimony was taken at a time when

Pointer was not afforded through counsel an adequate

opportunity to cross-examine the witness, he was denied his

privilege of confrontation.

-App. ll-

The Court in Pointer cited earlier cases dealing with

the Confrontation Clause to illustrate the Court's under-

standing of this constitutional guarantee. For instance, in

Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed.

409 (1895), the Court offered one of its earliest

interpretations of the Confrontation Clause:

The primary object of the

constitutional provision in question

was to prevent depositions on ex

parte affidavits such as were

sometimes admitted in civil cases,

being used against the prisoner in

lieu of a personal examination and

cross-examination of the witness in

which the accused has an oppor-

tunity, not oniy of testing the

recollection and sifting the

conscience of the witness, but of

compelling him to stand face to

face with the jury in order that

they may look at him, and judge by

his demeanor upon the stand and

the manner in which he gives his

testimony whether he is worthy of

belief. There is doubtless reason

for saying that the accused should

never lose the benefit of any of

these safeguards even by the death

of the witness; and that, if notes of

his testimony are permitted to be

read, he is deprived of ihe advan-

tage of that personal presence of

the witness before the jury which

the law has designed for his

protection. But general rules of

law of this kind, however bene-

-App. 12-

ficient in their operation and

valuable to the accused, must

occasionally give way to consid-

erations of public policy and the

necessities of the case. To say that

a criminal, after having once been

convicted by the testimony of a

certain witness, should go scot free

simply because death has closed the

mouth of that witness, would be

carrying his constitutional

protection to an unwarrantable

extent. The law in its wisdom

declares that the rights of the

public shall not be wholly sacrificed

in order that an incidental benefit

may be preserved to the accused.

(Id. at 242-43]

Thus, in Mattox where the witness had already given

testimony under oath and had been cross-examined, his prior

recorded testimony was admissible when he was unavailable

at a subsequent trial.

On several occasions following Pointer the Supreme

Court has further defined the confrontation right. In Douglas

v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934

(1965), and Bruton v. United States, 391 U.S. 123, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968), the Court found violations of the

defendant's confrontation rights because of an inability to

cross-examine an accomplice whose statement incriminating

the defendant was presented to the jury. In Barber v. Page,

-App. 13-

390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the Court

recognized that the confrontation requirement is not violated

when prior testimony that has been subject to cross-

examination is utilized because the witness has become

unavailable. However, in that case the Court noted that "a

witness is not ‘unavailable’ for the purposes of the foregoing

exception to the confrontation requirement unless the

prosecutorial authorities have made a good-faith effort tc

obtain his presence at trial." Id. at 724-25. In Barber, the

Court found that the witness was not "unavailable" because

the State made no effort to procure the witness' presence.

In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26

L.Ed.2d 489 (1970), the majority and a concurring opinion

addressed the basic relationship between the hearsay rule and

the right of confrontation. In that case the chief prosecution

witness was present at trial yet became evasive; therefore,

he was questioned regarding prior inconsistent statements

that inculpated the defendant. California law allowed the

substantive use of the statements to prove the truth of the

matters asserted therein. The defendant was convicted and

the California Supreme Court affirmed a lower court's

-App. 14-

reversal, reasoning that substantive use of a prior

inconsistent statement was precluded by the defendant's Sixth

Amendment right to confrontation. The Supreme Court

vacated this judgment concluding thet this alteration of

California's evidence law did not violate the defendant's

constitutional rights.

The Supreme Court began its analysis by reviewing the

relationship between the Confrontation Clause and the

hearsay rule. The Court noted:

While it may readily be conceded

that hearsay rules and _ the

Confrontation Clause are generally

designed to protect similar values,

it is quite a different thing to

suggest that the overlap is

complete and that the Confron-

tation Clause is nothing more or

less than a codification of the rules

of hearsay and their exceptions as

they existed historically at common

law. Our decisions have never

established such a congruence;

indeed, we have more than once

found a violation of confrontation

values even though the statements

in issue were admitted under an

arguably recognized hearsay

exception. See Barber v. Page, 390

U.S. 719 (1968): Pointer v. Texas,

380 U.S. 400 (1965). The converse

is equally true; merely because

evidence is admitted in violation of

a long-established hearsay rule does

-App. 15-

not lead to the automatic conclu-

sion that confrontation rights have

been denied. [Id. at 155-56

(footnote omitted)

The Court reasoned that because the literal right to

"confront" witnesses formed "the core of the values furthered

by the Confrontation Clause ... there is good reason to

conclude that the Confrontation Clause is not violated by

admitting a declarant's out-of-court statements, as long as

the declarant is testifying as a witness and subject to full and

effective cross-examination." Id. at 157-58. The Court then

evaluated the purposes of confrontation: (1) to insure that

statements are given under oath; (2) to force the witness to

submit to cross-examination; and (3) to permit the jury to

observe the witness' demeanor. Id. at 158. Thus, the Court

reasoned that even if an out-of-court statement is admitted,

as a practical matter most of the benefits of these

1 The Court of Special Appeals also has recognized that the

Confrontation Clause and hearsay rule are not synon[yj mous.

In Gregory v. State, 40 Md. App. 297, 309, 391 A.2d 437

(1978), 1521

dge Wilner engaged in a thorough analysis of this problem and

concluded: "The suggestion that the right of confrontation is

no more than a particular expression or emanation of the

hearsay rule does not find substantial support historially."

-App. 16-

protections are regained when that declarant is present and

testifying at trial. However, Justice Harlan's concurring

opinion argued that the Confrontation Clause simply requires

the prosecution to "produce any available witness whose

declarations it seeks to use in a criminal trial." Id. at 174

(Harlan, J., concurring). See generally Note, Confrontation

and the Hearsay Rule, 75 Yale L.J. 1434 (1966); Westen, The

Future of Confrontation, 77 Mich. L. Rev. 1185 (1979).

In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27

L.Ed.2d 213 (1970), a plurality opinion, the defendant (Evans)

was convicted of first-degree murder. At trial Shaw, an

inmate of the same institution as Williams (an accomplice to

the murders), testified that when Williams returned from his

arraignment he lamented that if it hadn't been for Evans "we

wouldn't be in this now." Shaw's testimony was admitted

under the Georgia co-conspirator exception to the hearsay

rule. The Court of Appeals for the Fifth Circuit reversed the

District Court's denial of Evans' petition for writ of habeas

corpus, concluding that he had been denied his Sixth

Amendment right to confrontation. The Supreme Court

reversed, but could not agree on the appropriate rationale.

-App. 17-

The plurality opinion reaffirmed the Court's refusal to

equate the Confrontation Clause and the hearsay rule. [n

concluding that admitting the statements did not deprive the

defendant of his constitutional right, the plurality focused on

two factors. First, it noted that the case did not involve

evidence that was "crucial" or "devastating," because there

were nineteen other prosecuting witnesses. Second, the

plurality noted that the statement was offered to identify

Evans and there were sufficient indicia of reliability in

connection with the use of this statement in that it was

spontaneous and against Williams' penal interest.

Justice Harlan concurred in the result, concluding that

due process of law really is the appropriate standard for

reviewing state rules of evidence. Harlan explained his

departure from the position he took in California v. Green,

supra, stating that certain types of evidence, notably business

records, were so _ intrinsically reliable that requiring

production of the declarant may be difficult, if not pointless.

Two Maryland cases followed Green and Dutton. In

State v. Collins, 265 Md. 70, 288 A.2d 163 (1972), this Court

concluded that the defendant's right to be confronted by his

-App. 18-

accusers was violated by admitting an unavailable witness'

deposition when the defendant received no notice of, and was

not present at, the deposition. Judge Digges observed that

traditionally there have been limited exceptions to the right

to confront and cross-examine witnesses. "But these

aberrations have only been permitted after close scrutiny has

disclosed that this type of evidence is both necessary and so

intrinsically reliable that it need not be subjected to the

rigors of cross-examination." Id. at 78 (footnote omitted)

(emphasis supplied).

In Crawford v. State, 282 Md. 210, 383 A.2d 1097

(1978), we concluded that the defendant's confrontation right

was not violated by using testimony elicited at a preliminary

hearing when the witness was unavailable for trial. In that

ease, the witness’ demonstrated unavailability obviously made

it necessary for the State to use her prior testimony. Thus,

Chief Judge Murphy focused on whether the testimony at the

prior judicial proceeding was sufficiently reliable. Citing the

test elucidated by the Supreme Court in Mancusi v. Stubbs,

408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), that there

must be sufficient "indicia of reliability" associated with the

-App. 19-

former testimony, the Court concluded that the test: mony

was basically reliable and thus admissible at trial.

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65

L.Ed.2d 597 (1980), represents the most recent Supreme

Court case in this area. Roberts had been arrested and

charged with forgery and possession of stolen credit cards

belonging to Bernard Isaacs and his wife. At a preliminary

hearing, Roberts called the Isaacs' daughter, Anita, and tried

to elicit an admission that she, in fact, had given him the

checks and credit cards; however, she denied this. At trial,

Anita did not appear although the State had issued several

subpoenas to her at her parents’ residence. Roberts testified

that Anita had given him the cards and checks to use, and the

State offered the transcript of Anita's testimony on rebuttal.

The trial court conducted a voir dire hearing after Roberts

asserted that use of the transcript violated his rights under

the Confrontation Clause. Mrs. Isaacs testified that Anita

had left home for Tuscon, Arizona, and later was in San

Francisco. She had only taked with Anita twice and knew of

no way to contact her. The trial court admitted the

transcript and the Court of Appeals of Ohio reversed,

-App. 20-

concluding that the State failed to show that it made a "good-

faith effort" to secure Anita's presence. The Supreme Court

of Ohio affirmed on other grounds, nonetheless holding the

transcript inadmissible.

The Supreme Court noted that it was "called upon to

consider once again the relationship between the

Confrontation Clause and the hearsay rule with its many

exceptions." Id. at 62. The Court acknowledged that it had

proceeded gradually in this area, but suggested that "a

general approach to the problem is discernible." Id. at 65.

The Court stated:

The Confrontation Clause

operates in two separate ways to

restrict the range of admissible

hearsay. First, in conformance

with the Framers’ preference for

face-to-face accusation, the Sixth

Amendment establishes a rule of

necessity. In the usual case

(including cases were prior cross-

examination has occurred), the

prosecution must either produce, or

demonstrate the unavailability of,

the declarant whose statement it

wishes to use against’ the

defendant. See Mancusi v. Stubb

408 U.S. 204 (1972); Barber v. Page,

390 U.S. 719 (1968). See also Motes

v. United Sta 178 U.S. 458

(1900); California v. Green, 399

U.S., at 161-162, 165, 167, n. 16.

-App. 21-

The second aspect operates once

a witness is shown to be

unavailable. Reflecting its

underlying purpose to augment

accuracy in the factfinding process

by ensuring the defendant an

effective means to test adverse

evidence, the Clause countenances

only hearsay marked with such

trustworthiness that "there is no

material departure from the reason

of the general rule." Snyder v.

Massachusetts, 291 U.S., at 107.

* *

The Court has applied this

"indicia of reliability" requirement

principally by concluding that

certain hearsay exceptions rest

upon such solid foundations that

adinission of virtually any evidence

within them comports with the

"substance of the constitutional

protection." Mattox v., United

States, 156 U.S., at 244.° This

reflects the truism that “hearsay

rules and the Confrontation Clause

are generally designed to protect

similar values," California _ vy.

Green, 399 U.S., at 155, and "stem

from the same roots," Dutton v.

Evans, 400 U.S. 74, 86 (1970). In

also responds to the need for

certainty in the workaday world of

conducting criminal trials.

In sum, when a hearsay declarant

is not. present for cross-

examination at trial, the

Confrontation Clause normally

-App. 22-

requires a showing that he is

unavailable. Even then, his

statement is admissible only if it

bears adequate "indicia of

reliability." Reliability can be

inferred without more in a case

where the evidence falls within a

firmly rooted hearsay exception. In

' other cases, the evidence must be

excluded, at least absent a showing

of particularized guarantees of

trustworthiness.” [Id. at 65-66]

In footnote 7, the Court indicated when "unavailability" might

not be required. Citing Dutton v. Evans, supra, the Court

suggested that if the utility of trial confrontation is "so

remote" the prosecution would not be required to produce a

seemingly available witness.

The Court then applied this analysis to the facts in

Roberts. The reliability aspect of the test was satisfied

because Roberts’ attorney effectively cross-examined the

witness at the preliminary hearing. Although she was called

by the defense, the form of her examination was "replete

with leading questions" and was the equivalent of significant

cross-examination. Thus, the defendant was able to test the

reliability of the testimony. Regarding availability, the

Court held that the triel court of Ohio correctly concluded

that the witness’ unavailability had been established.

-App. 23-

These cases make indelibly clear that the essence of

the Confrontation Clause is to secure the right of the

defendant to have the witness against him produced in

court. An exception is noted when the witness is unavailable

and has made an otherwise trustworthy out-of-court

statement. In such circumstances, unavailability may be

established when the State demonstrates a good-faith effort

to produce the witness but to no avail.

The cases also suggest circumstances where the courts

have found no confrontation violation because the evidence to

be offered is clothed with substantial indicia of reliability.

Such evidence is admitted without the declarant's testimony

when producing the witness would likely prove unavailing or

pointless. Business and hospital records fall within this

category and generally the hearsay exception which allows

their admission is expressed by statutory enactment.

The Maryland legislature has evidenced its approval of

a business records exception to the hearsay rule in Md. Code

(1974, 1984 Repl. Vol.) §10-101, Courts and Judicial

Proceedings Article. However, as to he admissibility of

records of alcohol test results in prosecutions for crimes

-App. 24-

growing out of drunk driving, Maryland seems to have made a

policy statement and expressed its deep com ern with the

preservation of a defendant's right of confrontation in

prosecutions under the statute. The legislature made clear

that aleohol test results are ordinarily reliable and generally

admissible as business records. See Md. Code (1974, 1984

Repl. Vol.) §310-302 to 10-309, Courts and Judicial

Proceedings Article (generally dealing with procuring and

using alcohol test results). Section 10-306 governs the

admissibility of the test results and provides:

(a) Subject to the provisions of

subsection (b), in any criminal trial

in which intoxication due to the

consumption of alcohol, or being

under the influence of alcohol, is an

issue, an official copy of the results

of a chemical test of breath or

blood administered by a person

authorized to administer the test,

is admissible as_ substantive

evidence without the presence or

testimony of the technician who

administered the test.

(b) If the State decides to offer

the test results without the testi-

mony of the technician, it shall, at

least 15 days before trial, notify

the defendant or his attorney in

writing of its intention and deliver

to the defendant or his attorney a

copy of the test results to be

-App. 25-

offered. If the defendant desires

the technician to be present and

testify at trial, he shall notify the

court and the State in writing no

later than 5 business days before

trial; and if such timely and proper

notice is given, the test results are

inadmissible without the testimony

of the technician. Failure to give

timely and proper notice

constitutes a waiver of the

defendant's right to the presence

and testimony of the technician."

It seems to us that $10-306(b) was designed to

subordinate the admissibility of alcohol test results to the

timely assertion of the defendant's right of confrontation.

The statute requires the tester to be produced, upon the

defendant's request, before the evidence may be admitted

despite its reliability, and the defendant does not have to

proffer what he intends to prove from this witness. In these

circumstances, the legislature has safeguarded’ the

defendant's Sixth Amendment right and elevated it over what

the statute has decleved to be reliable evidence. Moon, of

course, contends that the stricture of 10-306(b) pertains to

these proceedings since the charges he must answer emanate

from drunk driving. However, we held in State v. Moon, 291

Md. 463, 436 A.2d 420 (1981), that $$10-302 to 10-309 did not

-App. 26-

specifically apply to these proceedings where blood was taken

from Moon as part of his treatment rather than for prose-

cution under the statute. We do not retreat from that

position; nor is it necessary for us to go so far. Suffice it to

say that we believe that where the record of alcohol test

results, on its face, gives rise to a question as to the

reliability of the record and the tester is available and the

defendant interposes a seasonable objection, testimony of the

declarant is neither frivolous nor pointless. Rather, it is

error not to require the declarant to testify before the record

is admitted. We believe that this holding secures to the

defendant his right of confrontation and is consistent with the

legislative policy which accords alcohol test results less

deference than other business records.

Here, the witness was present in the courtroom when

Moon objected, pointing to a number of discrepancies on the

face of the report which raised a doubt as to its reliability.

Moon claimed that the hospital records were silent as to the

kind of blood aleohol test performed. Dr. Caplan had indi-

cated that while he was generally familiar with the tests

employed at University Hospital, he did not know which

-App. 27-

specific procedure of the many tests used in the hospital was

followed. As a matter of fact, when defense counsel sought

to have the Doctor explain how a blood test was performed,

the trial court cut off the cross-examination in response to

the State's objection. It is obvious to us that, under these

otreumstances, defense counsel had a sound basis for inquiring

what test was used and if the technician was qualified to

conduct the test.

Furthermore, the report indicated that it was

completed on February 21, and the blood was drawn from the

patient on February 18. These facts raise several potentially

serious questions counsel may have addressed on cross-

examination. Defense counsel in argument had told the trial

court that the test was performed on the 21st and the blood

drawn on the 18th. He did not know what happened to the

blood sample in the interim, that is, how or if it was properly

preserved. Cross-examination on whether chemical agents

were added to the blood to maintain its stability, if the blood

was deposited in a container to avoid evaporation, and if the

blood was properly refrigerated to prevent putrefaction was

germane to a determination of reliability. See generally

-App. 28-

American Medical Association, Committee on Medicolegal

Problems, Alcohol and the Impaired Driver, A Manual on the

Medicolegal Aspects of Chemicl Tests for Intoxication

(1968). A most important question was whether the blood

test was performed on the 21st as part of Moon's treatment.

Moon had been in the hospital three days, been operated on

and placed in casts for his injuries prior to February 21st. It

would be logical for counsel to inquire how blood drawn on

the 18th and tested on the 21st had any diagnostic value for

treatment already received. If counsel elicited from the

technician that the test was conducted on the 2Ist in

response to a police request, the trial judge may have

concluded that the test was not performed in conrection with

Moon's treatment and, therefore, was not pathologically

germane to the reason Moon was in the hospital. See Yellow

Cab Co. v. Hicks, 224 Md. 563, 168 A.2d 501 (1961); Shirks

Motor Express v. Oxenham, 204 Md. 626, 106 A.2d 46 (1954);

Lee v. Housing Authority of Baltimore, 203 Md. 453, 101 A.2d

834 (1954); Globe Indemnity Co. v. Reinhart, 152 Md. 439, 137

A. 43 (1927). Counsel may even have inquired as to how the

test, even if performed on the 18th, was pathologically

-App. 29-

germane to Moon's treatment if it were not transmitted to

the doctors until the 21st. Under these circumstances, the

trial court may have been persuaded that the test was

inadmissible.

Moon also complained that the report did not bear his

name but rather a number. We do not speculate as to what

Moon's counsel would seek to prove by cross-examining the

witness on this point. We do take note that trial counsel is

often resourceful and ingenious in making use of the right of

cross-examination. Suffice it to say here that the areas we

single out are important enough to indicate that cross-

examination would not have been frivolous or pointless.

While we recognize that ordinarily hospital (business)

records are regarded as reliable, here, because Moon was

denied the right to be confronted with the technician, it is

questionable whether the report was properly admitted under

the business records statute. Section 10-101(c) of the Courts

Article requires that business records be made “at the time

they are done or within a reasonable time afterwards."

[Emphasis supplied] No testimony was presented at trial

regarding standard hospital procedure and there was no

-App. 30-

explanation for the three-day delay if it is assumed the test

was made on the 18th. Timeliness in preparing a business

record is logically related to the reliability of the record

itself. Here, we can make no accurate assessment of the

document's reliability because the means of testing its

trustworthiness were withheld from the defendant.

In short, we conclude that although $10-306 of the

Courts Article has no application to the facts in this case, the

policy set forth therein buttresses the conclusion we have

reached through constitutional analysis — that Moon's right of

confrontation guaranteed by Article 21 of the Maryland

Declaration of Rights and the Sixth Amendment to the United

States Constitution was denied when the trial court did not

require the testimony of the technician before admitting the

alcohol test results.

JUDGMENT OF THE COURT OF SPECIAL

APPEALS REVERSED AND CASE REMANDED

TO THAT COURT TO REVERSE THE

JUDGMENT OF THE CIRCUIT COURT FOR

CARROLL COUNTY AND REMAND TO THAT

COURT FOR A NEW TRIAL. CARROLL

COUNTY TO PAY THE COSTS.

-App. 31l-

CRAIG W. MOON * IN THE

Appellant * COURT OF APPEALS

Vv. * OF MARYLAND

STATE OF MARYLAND * Sept. Term, 1982

Appellee * No. 87

* July 19, 1984

* *

* * * © *

OPINION

Dissenting opinion by Rodowsky, J., in which Smith and

Menchine, JJ., concur.

I respectfully dissent.

The issue is whether admitting Moon's hospital record

into evidence, including particularly the results of the blood

alcohol test, violated Moon's right "to be confronted with the

witnesses against him." U.S. Const. Amendment VI. Here the

business records statute was the exclusive basis for evi-

dentiary competency. But the Confrontation Clause does not

prohibit a court in a criminal case from receiving into

evidence a hospital record reporting the objective results of a

scientific test which was ordered for purposes of treatment

and which was conducted by a technician who is independent

of the police. In my view the conclusion of the majority is

-App. 32-

not only legally incorrect but, by placing its holding on

constitutional grounds, the Court needlessly brings into

question the use in Maryland criminal cases of the most trust-

wor thy exceptions to the hearsay rule.

Moon's file from University Hospital came _ into

evidence as a business record under Md. Code (1974, 1984

Repl. Vol.), $10-101 of the Courts and Judicial Proceedings

Article. The foundation for admission was by a stipulation,

the effect of which was as if a mere custodian of the records

who had no personal knowledge had testified. Moon's trial

counsel, in arguing against admissibility of the laboratory

report, at times made statements somewhat inconsistent with

his having stipulated a foundation for $10-101 admissibility. I

take it that the majority has concluded that Moon's counsel

did stipulate to a sufficient foundation for admitting the

exhibit under the statute. Obviously, if the State failed to

lay a proper foundation, this case should be resolved under

Maryland evidence law and the Court should not address the

constitutional issue.

At the constitutional level, the Supreme Court “has

not sought to 'map out a theory of the Confrontation Clause

-App. 33-

that would determine the validity of all . . . hearsay

"exceptions."" Ohio v. Roberts, 448 U.S. 56, 64-65, 100 S.Ct.

2531, 65 L.Ed.2d 597 (1980) (quoting California v. Green, 399

U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). Roberts

is the most recent opinion of the Court on the Confrontation

Clause. In footnote 9 to Roberts, id. at 66-68, the Court

reviewed the outpouring of scholarly commentary triggered

by "[tihe complexity of reconciling the Confrontation Clause

and the hearsay rules" but refused to adopt any one theory as

controlling.

Roberts does, however, advise that "a general

approach to the problem is discernible." Id. at 65.

The Confrontation Clause

operates in two separate ways to

restrict the range of admissible

hearsay. First, in conformance

with the Framers’ preference for

face-to-face accusation, the Sixth

Amendment establishes a rule of

necessity. In the usual case... the

prosecution must either produce, or

demonstrate the unavailability of,

the declarant whose statement it

wishes to use against’ the

defendant. [Id]

That statement is immediately qualified by footnote 7 in

Roberts which in part reads (id.):

-App. 34-

7A demonstration of

unavailability, however, is not

always required. In Dutton v.

Evans, 400 U.S. 74 (1970), for

example, the Court found the

utility of trial confrontation so

remote that it did not require the

prosecution to produce a seemingly

available witness.

The Supreme Court in Roberts then described the

second aspect of confrontation which

operates once a witness is shown to

be unavailable. Reflecting its

underlying purpose to augment

accuracy in the factfinding process

by ensuring the defendant an

effective means to test adverse

evidence, the Clause countenances

only hearsay marked with such

trustworthiness that "there is no

material departure from the reason

of the general rule." Snyder v.

yeasts, 291 U.S., at 107.

Roberts approved the State's placing in evidence during its

rebuttal case the transcript of testimony which an unavail-

able witness had given at a preliminary hearing. The case

before us deals with a business record. Nevertheless, dicta in

1 Dutton approved, on its facts, use against the accused of an

oral admission made by a coconspirator of the accused to the

witness, e fellow prisoner of the cocongpirator.

-App. 35-

Roberts answers the Sixth Amendment question presented

here.

The Court has applied this

"indicia of reliability" requirement

principally by concluding that

certain hearsay exceptions rest

upon such solid foundations that

admission of virtually any evidence

within them comports with the

"substance of the constitutional

protection." Mattox _v.. United

States, 156 U.S., at 244° This

reflects the truism that “hearsay

rules and the Confrontation Clause

are generally designed to protect

similar values," California v.

Green, 399 U.S., at 155, and "stem

from the same roots," Dutton v.

Evans, 490 U.S, 74, 86 (1970). It

also responds to the need for

certainty in the workaday world of

= criminal trials. [Id. at

66

Footnote 8 (omitted from the majority's discussion of

Roberts) tells us:

8see, eg., Pointer v. Texas, 380

U.S., at 407 (dying declarations);

Mattox v. United States, 156 U.S.,

at 243-244 (same; Mancusi_v.

Stubbs, 408 U.S. 204, 213-216

l (cross-examined prior-trial

testimony); Comment, 30 La. L.

Rev. 651, 668 (1970) ("Properly

dministered the business and

public ecards exceptions would

seem to be among the safest of the

-App. 36-

hearsay exceptions"). [Emphasis

added

And see Dutton v. Evans, 400 U.S. 74, 95-96, 91S. Ct. 210, 27

L.Ed.2d 213 (1970) (Harlan, J., concurring).

Here the fact which the State seeks to prove by the

introduction of the laboratory report is that the ethyl alcohol

concentration of Moon's blood sample was 165 milligrams per

deciliter. In the language of the hearsay rule the "declarant"

is the laboratory technician who performed the test which

yielded that measurement. From the standpoint of the first

aspect of the Confrontation Clause-hearsay exceptions

relationship as disecused in Roberts, the declarant is in effect

unavailable because it would be pointless for the State to call

him as an accuser. Experience teaches us that the

technician, even if called to the stand, would have to rely on

the hospital's record of the test result in order to testify

accurately, or at all. From the trustworthiness standpoint,

Roberts tells us that the business records exception to the

hearsay rule is like a dying declaration, or like cross-

examined prior-trial testimony, so that virtually any evidence

within the business record exception comports with the

substance of the Confrontation Clause protection.

-App. 37-

Likely because these conclusions are so well-

established in practice, the United States Supreme Court

appears never substantially to have addressed a Confrontation

Clause objection to business records evidence. The point was,

however, a minor issue in Heike v. United States, 227 U.S.

131, 33 S.Ct. 226, 57 L.Ed. 450 (1913). That was a.

prosecution for customs fraud accomplished by the secret

insertion of springs into some of the scales used by tax

collectors so that imported sugar was underweighed. The

Goverment sought to prove that the actual weights were

higher than those recorded by customs agents. To do this the

Government offered business records, called "pink books," of

other weighings of the same cargoes made by persons called

the "city weighers" whose measurements were used by the

defendant company to compute how much it was to pay for

the sugar. Persons who made the entries in the pink books

identified them. Cross-examination revealed that often those

persons did not see the reading on the scale but simply wrote

down what a city weigher told them. Hearsay! The

declarants are the city weighers. In answer to a

Confrontation Clause argument the Second Circuit had said

-App. 38-

simply that "the witnesses whose testimony made the records

admissible testified before the jury, and were cross-

examined, or opportunity given for cross-examination. .. ."

Heike v. United States, 192 F. 83, 97 (2d Cir. 1911). On

certiorari the Supreme Court, through Justice Holmes,

recognized that the city weighers had not been called as

witnesses but found no error for the reason, among others,

that the pink books had been accepted by the defendant

company. 227 U.S. at 145. In the present case the Sixth

Amendment imposes no greater requirement on the State to

call the University Hospital laboratory technician than it

imposed on the federal government to call the city weighers

in Heike.

Moon has not referred to, the majority has not cited,

and my research has not disclosed any decision holding that

the admission of a hospital rece”? containing an independent

observer's report of scientifically objective findings made in

the course of treatment violates the Confrontation Clause

when the record is admitted through a custodian who is not

the declarant. In the following cases caurts held that the

introduction of hospital records as business records did not

-App. 39-

offend the Sixth Amendment: United States ex rel. Henson v.

Redman, 419 F.Supp. 678 (D. Del. 1976) (emergency room

record noting lacerated vagina and bleeding hymen of rape

victim); United States ex rel. Lurry v. Johnson, 378 F.Supp.

818 (E.D. Pa. 1974), aff'd, 510 F.2d 971 (3d Cir. 1975) (same;

also presence of spermatozoa); Pickett v. State, No. 3, Div.

504 (Ala. Crim. App. November 23, 1982), reh'g denied,

December 28, 1982 (description of vaginal trauma of rape

victim); Henson v. State, 332 A.2d 773 (Del. Super. 1975)

(emergency room record describing injuries of rape victim);

State v. Torres, 60 Hawaii 271, 589 P.2d 83 (1978) (X-rays of

accused showing lodged near the spine an object later

identified by expert witness as a .22 caliber bullet); State v.

Simpson, 625 S.W.2d 957 (Mo. App. 1981) (description of rape

victim's hysteria and bruises); State v. Spikes, 67 Ohio St. 2d

405, 423 N.E.2d 1122 (1981), appeal dismissed sub nom. Spikes

v. Ohio, 454 U.S. 1131, 102 S.Ct. 986, 71 L.Ed.2d 284 (1982)

(description of victim's injuries in aggravated robbery case);

Hagenkord v. State, 100 Wis. 2d 452, 302 N.W.2d 421 (1981)

(finding of sperm in vagina of rape victim and vaginal

injuries); State v. Olson, 75 Wis. 24575, 250 N.W.2d 12 (1977)

-App. 40-

(description of injuries of victim where charge was

"endangering safety by conduct regardless of life... .").

There is another class of criminal. case in which

accused persons have argued that the introduction of business

or public records violated the Confrontation Clause. Those

cases arise when the record placed in evidence is the report

by a scientist employed by the state to determine whether

the matter tested is evidence of crime. Frequently the

report is introduced through a custodian, or through a

supervisor, or pursuant to a statute authorizing authenti-

cation by a certificate. The majority rule in those cases is

that there is no Confrontation Clause violation. See

Imwinkelried, The Constitutionality of Introducing Evaluative

Laboratory Reports Against Criminal Defendants, 30 Hastings

L.J. 621(1979). The majority taking this no-violation position

appears to be substantial. See, eg., Kay v. United States,

255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct.

42, 3 L.Ed.2d 65 (1958) (blood aleohol report admitted under

certificate in drunk driving case); Montgomery v. Fogg, 479

F.Supp. 363 (S.C.N.Y. 1979) (autopsy report in murder case);

State v. Huggins, 659 P.2d 613 (Alaska App. 1982) (admission

-App. 41-

under certificate of foundation evidence, such as calibration,

for admission of breathalyzer examination results); State v.

Cosgrove, 181 Conn. 562, 436 A.2d 33 (1980) (state

toxicologist's report that substance is marijuana); Howard v.

United States, 473 A.2d 835 (D.C. 1984) (Drug Enforcement

Agency chemist's certified report that substance is heroin);

State v. Rhone, 555 S.W.2d 839 (Mo. 1977) (admission through

custodian of police laboratory microscopic and spectrographic

comparison of fibers in accused's clothing to materials on

roof of burglarized building); State v. Malsbury, 186 N.J.

Super. 91, 451 A.2d 421 (1982) (report from county forensic

science laboratory that substance is marijuana); People v.

Porter, 46 A.D.2d 307, 362 N.Y.S.2d 249 (1974) (blood aleohol

test in drunk driving case conducted by private laboratory

hired by police; lab notes of chemist, who was deceased at

time of trial, identified by coworker); Burleson v. State, 585

S.W.2d 711 (Tex. Crim. App. 1979) (autopsy admitted in

murder case through secretary who transcribed notes of the

medical examiner; latter attending professional meeting in

California at time of trial); Robertson v. Commonwealth, 211

Va. 62, 175 S.E.2d 260 (1970) (attested report by medical

-App. 42-

examiner that vaginal swabs from victims in rape case

contain seminal fluid); State v. Kreck, 86 Wash. 2d 112, 542

P.2d 782 (1975) (en banc) (report by state chemis. in murder

ease that victim's blood contains chloroform; chemist in

Germany).

If the reports in the foregoing cases are sufficiently

trustworthy as not to offend the Confrontation Clause, then

the laboratory report of the results of an objective test

conducted on Moon's blood by an independent technician

acting at the request of attending physicians at University

Hospital cannot violate the Confrontation Clause.

The minority view in this second class of case is

illustrated by Reardon v. Manson, 491 F.Supp. 982 (D. Conn.

1980), cause remanded, 644 F.2d 122 (2d Cir. 1981) and by

State v. Henderson, 554 S.W.2d 117 (Tenn. 1977). Reardon

involved two federal habeas corpus cases. The Second Circuit

reversed and remanded both cases for reconsideration under

28 U.S.C. $2254(d) and Sumner v. Mata, 449 U.S. 539, 101

S.Ct. 764, 66 L.Ed.2d 722 (1981) in light of the contrary

factual findings which had been made in the same cases by

-App. 43-

the Supreme Court of Connecticut. See Reardon v. Manson,

644 F.2d 122 (2d Cir. 1981).

Henderson, supra, excluded a state toxicologist's

report identifying substances to be LSD and marijuana. The

Supreme Court of Tennessee distinguished the case before it

from a case like that before this Court when it said:

"Yet it must also be noted that the

records in this case, while they may

satisfy the technical requirements

of [the Tennessee business records

as evidence statutd , do not fit the

classic business records mold, i.e.

‘shop books’ or hospital records.

Entries in such records are

considered reliable because they

are made in the course of business

and are routinely relied upon by

others in carrying on the affairs of

the business. In the case of

hospital records, medical personnel

make life and death decisions as a

result of reports and_ record

entries. Such documents are true

‘ousiness records,' and __ their

trustworthiness stems from the

fact that they are ‘prepared for

other use and only _ incidentally

found pertinent to litigation.” [554

S.W.2d at 120 _—* lower court's

opinion) J

Under confrontation principles applied by the United

States Supreme Court, and by state and federal courts,

Moon's hospital record was admissible. Nevertheless the

-App. 44-

majority says that the admission of this particular record as a

business record violated Moon's right of confrontation

because the record on its face raised possible questions as to

its trustworthiness.

Before addressing the majority's analysis some

additional background facts should be stated. After the State

Police helicopter had flown Moon from the death scene to

University Hospital, he was admitted into the shock trauma

unit at 2:06 a.m. His injuries included internal abdominal

bleeding, a broken left arm, through and through lacerations

of the cheek and a head injury. The admitting note describes

Moon as "combative, agitated, moving all extremeties,

verbalizing in incoherent manner." By 2:15 a.m. six "blood

gas" tests had been performed. By 2:30 a.m. 14 additional

tests had been performed on Moon, including the osmolalia ty

test which was indicative of high blood alcohol. By 2:49 a.m.

orders had been directed to various laboratories by means of

preprinted forms designed to permit the attending physician

merely to check the type of test or screening desired. For

the patient then identified as "Male Doe 8515," ie. Moon,

the doctors directed such orders to the "microbiology" lab,

-App. 45-

the "chemisty-24 hour lab," the "hematology II-stat 24 hour

lab," the "chemistry automated" lab, the "chemistry-

immunoassay" lab and the "toxicology" lab. This latter order

resulted in the report on which the issue in this case

principally focuses. The report came into evidence as part of

State's Ex. 4, the complete University Hospital record on

Moon. This one-page report, which includes the blood alcohol

result, was also separately marked as State's Ex. 4A.

The parties stipulated that State's Ex. 4 is the original

hospital record. There is no question about the authenticity

of Exs. 4 or 4A. What the majority really holds is that Ex. 4A

is not trustworthy. One reason given is that the "hospital

records were silent as to the kind of blood alcohol test

performed." Doctor Yale H. Caplan, the chief toxicologist

for the State of Maryland in the Medical Examiner's Office,

testified that, while a blood test for alcohol can be done in

several ways, "it is basically an objective chemical analysis of

blood for a specific substance." From the trustworthiness

standpoint it makes no difference which of several

"objective" methods was used. The majority says that Moon's

counsel "had a sound basis for inquiring . . . if the technician

-App. 46-

was qualified to conduct the test." It was stipulated that the

hospital record was made in the ordinary course of business.

In the face of this stipulation the majority says that, unless

the technician testifies as to his qualifications and is subject

to cross-examination, admitting a University Hospital lab

report into evidence as a business record violates constitu-

tional safeguards. This is really holding, out of thin air, that

laboratory tests are presumed to be conducted by unqualified

technicians in ordinary course at University Hospital, so that

the State must explicitly prove the contrary.

The majority emphasizes that Ex. 4A is dated February

21, 1979, while space on that report headed, "Time," is

completed "2-18-79 249 AM." Ata pretrial hearing on Moon's

motion to suppress the toxicology report, defense counsel

informed the court that, based upon counsel's interview with

249 AM refers to the time when the

the attending phiysician,

attending staff took the specimens tobe tested. The order to

the toxicology lab reflects that the physician initially

checked a preprinted block to request a "drug abuse screen,"

then marked that order "void" and by longhand requested a

"General Drug Screen." State's Ex. 4A, reporting on the

-App . 47-

"general screen," is a form reflecting that tests were

conducted for three types of alcohol and for 15 other

substances. The alcohol tests and two others utilized blood

while the remaining tests were performed on a urine

specimen. All tests other than that for ethyl aleohol were

negative. I fail to see how Ex. 4A on its face demonstrates

that its admission into evidence is an unconstitutional

application of the Maryland business records statute.

Because the parties stipulated that Ex. 4, which includes 4A,

was prepared in the ordinary course of business, for purposes

of this appeal the conclusion should be that a general drug

screen to test blood and urine for 18 substances can take

three days from request to written report. The conclusion

should not be that the report is untrustworthy.

Nevertheless, the majority creates a constitutional

right out of the possibility that "counsel may have addressed

on eross-examination" whether "chemical agents were added

to the blood to maintain its stability, if the blood was

deposited in a container to avoid evaporation, and if the blood

was properly refrigerated to prevent putrefaction." In other

words, the risk of University Hospital personnel in the

-App. 48-

ordinary course of business altering, adulterating or

contaminating a specimen preserved for laboratory analysis is

considered by the majority to be so great, and the report of

the laboratory analysis therefore so untrustworthy, that the

Vaneepernatenpigns?

ordinary application of the business records statute must be

constitutionally restricted. In this respect the majority's

rhetoric ignores the appellate record. At the hearing on the

suppression motion defense counsel, with the acquiesence of

the State, advised the court what the testimony of the

attending physician would be were he called to testify.

In conversations with Doctor

Millitello, he indicated that the

bottom line where it has the time,

is when the blood was drawn. But

this particular test, this analysis of

the blood alcohol, was not done

until February the 21st, 1979, and

that's .. . the reason for that other

date that appears on there —

apparently, they take a number of

samples during the course of the

treatment and they're put in the

freezer-refrigerator or some such

thing. And then when it comes _

time to do the analyses, they just

analyze all of the samples at one

time, whether that be for economy

or whatever. Doctor Millitello

himself wasm't sure as to why it's

done that way, but apparently

that's the way it is done.... I

think that those are the facts. [The

-App. 49-

State's Attorney) may have some

others to add when it comes to his

turn.

This representation by defendant's counsel furnished part of

the basis for the circuit court's ruling that the toxicology

report was admissible. Moon does not attempt to retreat

from those representations in his brief to this Court, and

indeed would not be permitted to do so. Yet the majority

reverses Moon's conviction by speculating that the facts

might be contrary to Moon's own representations to the trial

court.

Curiously, another factor which is said to comprise the

constitutional violation is that cross-examination might have

“elicited from the technician that the test was conducted on

the 21st in response to a police request. ..." State v. Moon,

291 Md. 463, 436 A.2d 420 (1981) (Moon I) arose on the

identical appellate record now before us. There we said that

the "order from Moon's attending physician for a general drug

screening test" and the form of report "effectively refute any

suggestion that somehow there was a conspiracy between the

State Police and University Hospital ... to obtain the...

-App. 50-

blood aleohol content in circumvention of the statute." Id. at

466, 436 A.2d at 421.

Next we are told that "[i] t would be logical for counsel

to inquire how blood drawn on the 18th and tested on the 21st

had any diagnostic value for treatment already received." In

this respect the majority presupposes that treatment ceased

by February 21 although Moon remained hospitalized until

March 6. In my view, the fact that an attending physician, as

part of the immediate and total response in the shock trauma

unit, ordered a general drug screen makes the report of the

test results sufficiently pathologically germane to be beyond

constitutional objections.” In any event Moon could not

conceivably have a right of confrontation to cross-examine

the hearsay declarant concerning the medical reasons for

ordering the general drug screen. The hearsay declarant is

the laboratory technician, a Dennis Seabolt, who made a

blood alcohol finding and recorded the result. Why the tests

‘

2 Because Moon was incoherent and violent and also had a

head injury, the physicians in the shock trauma unit may well

have been looking for any help they could get to determine

whether Moon's behavior resulted from his injuries or from

some other cause, eg., drugs.

-App. 51-

were ordered by Doctor Millitello was a medical decision.

Ordinarily a laboratory technician is not qualified to give

expert testimony concerning the reasons underlying a medical

decision.

As I see it, the fundamental error in the majority's

rationale is the elevation of speculation above evidentiary

fact and common experience. The majority uses the subjunc-

tive mood to present its discussion of the untrustworthiness

of Moon’s University Hospital record. What Moon's counsel

"might" have asked is the sole concern. Under this analysis it

is immaterial that the centuries of experience dating from

adoption of the shop book rule make it most unlikely that the

questions conjured by the majority would produce any answers

evidencing a lack of trustworthiness in the hospital record.

Thus, the standard for passing constitutional muster moves

from the generally accepted reliability of the record to

whether defense counsel "might" want to ask some

questions. Only such a Kafkaesque standard could convert

the admission of reports on which life or death decisions are

regularly based into a constitutional violation.

-App. 52-

When Moon's new trial is held, and Dennis Seabolt

testifies on cross-examination that all he knows is that his

report accurately recorded his observations, what will the

majority have accomplished?

Judges Smith and Menchine have authorized me to

state that they join in the views expressed in this dissenting

opinion.

CRAIG WESLEY MOON

Appellant

Vv.

STATE OF MARYLAND

Appellee

-App. 53-

OPINION

Gibert, C.J., Morton, Moore, JJ.

June 23

<>

IN THE

COURT OF

SPECIAL APPEALS

OF MARYLAND

Sept. Term, 1980

No. 154

9

1982

t *

The Court of Appeals granted certiorari in the case of

Craig Wesley Moon v. State of Maryland, No. 33, September

Term, 1982, and issued the following "Per Curiam Order" on

June 8, 1982:

"ORDERED, by the Court of

Appeals of

Maryland,

that the

above entitled case be, and it is

hereby, remanded to the Court of

Special

affirmance

Appeals,

or

reversal,

without

with

instructions to answer the question

'Were the results of Petitioner's

blood alcohol and osmolality tests

admitted into evidence in violation

of his constitutional right of

confrontation?’ and that said case

be advanced on the Court's docket

for consideration and disposition."

-App. 54-

It is our view that the admission of Moon's blood

alcohol and osmolality tests was not in violation of his

constitutional right of confrontation.

The record shows that prior to offering the blood

alcohol and osmolality tests into evidence at his trial, the

State called Dr. Yale H. Caplan, Chief Toxicologist for the

State of Maryland, who testified as follows:

"BY MR. LOVE [Deputy State's

Attorney]:

Q. Doctor Caplan, the osmolality,

the test that shows

osmolality, is that an

Objective or subjective test?

A. Oh, it's an objective test.

Q. It'sa scientific test?

A. Yes.

Q. And is the level of osmolality,

is that a matter of opinion

or is that a matter of a test

result?

A. No, it's a matter of a test

result.”

Prior to this testimony Dr. Caplan, in response to a

question by the prosecuting attorney, stated:

"That means that as the osmolality

increases, it increases in a fixed

-App. 55-

relationship with the blood alcohol

concentration. Although we should

point out that this is much more

variable a situation than is the

actual blood alcohol analysis, which

is a very definitive type of test,

with a high degree of precision and

accuracy."

Thus, the record shows that we are dealing with

Objective tests the results of which are achieved by

technicians whose personal or professional opinions in no way

contribute to or affect the results. The process is

comparable to adding a column of figures. The result of the

addition is never altered by any personal opinion that may be

held by the individual performing the addition.

In Grover v. State, 41 Md. App. 705 (1979), this Court

was confronted with an issue similar to the one we are here

directed to resolve. In Grover the appellant contended that

the admission of an autopsy report into evidence was in

violation of his constitutional right of confrontation because

it contained a statement by Dr. Biagio Azzarelli, a neuro-

pathologist, who did not testify. Dr. Azzarelli's statement

was entitled "Brain Note" which gave a rather elaborate

description of his findings after examining the deceased's

brain. Judge Thompson, who authored the Grover opinion,

-App. 56-

referred to and quoted from the opinion of this Court in

Gregory v. State, 40 Md. App. 297 (1978). He stated:

"In Gregory v. State, supra, we

noted that the field of forensic

psychiatry was an inexact science

and that differences of opinion

frequently existed between experts

in the field. This being so, we

concluded that the opportunity to

cross-examine a witness giving such

opinion evidence could be of crucial

importance. It should not be

supposed that Gregory stands for

the proposition that the confronta-

tion clause of the constitution

precludes the admission of all

evidence under exceptions to the

hearsay rule. Dr. Azzarelli's

statement in the autopsy report did

not express any opinion. It merely

stated his findings of the physical

condition of the decedent's brain.

As such it falls under the category

of a ‘fact or condition objectively

ascertained,’ and was probably

admissible as a business record as

provided by the Md. Code, Courts

and Judicial Proceedings Article,

Section 10-101. It was clearly

admissible under Md. Code, Article

22, $8 which has been construed by

Benjamin v. Woodring, 268 Md. 593,

608, 303 A.2d 779 (1973) to make

autopsy reports admissible as to

facts, but not as to opinions."

(Footnote omitted.) 41 Md. App.

710-711.

-App. 57-

We are of the opinion that the results of the blood

alcohol and osmolality tests administered to Moon fall in the

category of a "fact or condition objectively ascertained.

. » y" since they involved no opinion or subjective viewpoint of

the individual administering the tests. Thus, the admission of

the tests into evidence did not violate Moon's constitutional

right of confrontation.

In any event, there was nothing to prevent Moon's trial

counsel from calling the technician who performed the

respective tests as his witness and conducting an interro-

gation concerning the details of the procedures followed in

performing the tests.

JUDGMENTS AFFIRMED;

COSTS TO BE PAID BY APPELLANT.

-App. 58-

CRAIG WESLEY MOON * IN THE

Appellant * COURT OF APPEALS

Vv. * OF MARYLAND

STATE OF MARYLAND * Sept. Term, 1982

Appellce ° Ne. 33

* dune 8, 1982

. *

PER CURIAM ORDER

Murphy, C.J., Smith, Eldridge, Cole, Davidson, Rodowsky,

Couch, JJ.

It is this $th day of June, 1982

ORDERED, by the Court of Appeals of Maryland, that

the above entitled case be, and it is hereby, remanded to the

Court of Special Appeals, without affirmance or reversal,

with instructions to answer the question "Were the results of

Petitioner's blood aleohol and osmolality tests admitted into

evidence in violation of his constitutional right of

confrontation?" and that said case be advanced on the Court's

.

docket for consideration and disposition.

/s/ Robert C. Murphy

Chief Judge

-App. 59-

Judge Eldridge would have decided the question presented.

-App. 60-

CRAIG WESLEY MOON * IN THE

Appellant * COURT OF

Vv. * SPECIAL APPEALS

STATE OF MARYLAND * OF MARYLAND

Appellee * Sept. Term, 1980

* No. 154

a February 10, 1982

. . . - * *

OPINION

Gibert, C.J., Morton, Moore, JJ.

In State v. Moon, 291 Md. 463 (1981), the Court of

Appeals reversed the holding of this Court in Moon vy. State,

No. 154, September Term, 1980, per curiam opinion filed

October 30, 1980.

Moon had been convicted in the Circuit Court for

Carroll County on two counts of manslaughter by automobile

(Md. Ann. Code, art. 27, $388) and one count of driving while

intoxicated (Md. Transp. Code Ann. $21-902). This Court held

that a test administered to Moon to determine the alcoholic

content of his blood was improperly admitted at his trial and

reversed his conviction. The Court of Appeals. in a split

decision, held the test was admissible. It reversed the

-App. 61-

decision of this Court and remanded the case for

consideration of issues raised by Moon which we had found

unnecessary to decide. We now proceed to consider those

issues.

In his original appeal to this Court, Moon had

contended that the trial court should have excluded evidence

of his erratic driving "at distances more than one mile and

one-half from the scene of the accident." The testimony of a

witness at the trial as to Moon's erratic driving prior to the

accident was admitted over objection. The short answer to

Moon's contention is found in Reid v. Humphreys, 210 Md. 178

(1956), where it was said, at 185:

"Generally, the admissibility of

testimony as to the speed or reck-

less operation of a motor vehicle at

some distance from the place

where it afterwerds collided with

another vehicle is discretionary

with the trial court, and a ruling

admitting such evidence will not be

disturbed on appeal in the absence

of a clear abuse of discretion."

Here we find no clear abuse of the trial judge's

discretion in admitting the testimony.

Appellant finally contended that the court below was

"“elearly in error in finding the defendant guilty of man-

-App. 62-

slaughter" because "[flhere was no evidence of impairment or

intoxication at the time of accident"; and "[fhere was no

evidence of gross negligence or wanton and reckless

indifference to human life." We disagree.

As a result of the miling of the Court of Apeals in this

case, there was properly before the court below evidence that

when a blood test was administered to the appellant some

hours after the accident, it showed the existence of .165

percent of alcohol in his bloodstream which, of course, is

prima facie evidence of intoxication. Md. Courts & Jud.

Proc., §$10-307. We simply cannot subscribe to appellant's

contention that this evidence "standing by itself ... is no

evidence of impairment or intoxication at the time of the

accident." This evidence, however, did not stand by itself.

There was evidence from witnesses who extricated appellant

from his car and who transported him by helicopter to the

hospital that they detected alcohol on his breath and that he

was combative during the entire trip to the hospital.

The trial judge foind, and we cannot say he was

clearly erroneous (Maryland Rule 1086), that the accident

occurred in the victims’ lane of traffic. There was evidence

-App. 63-

of appellant's erratic driving just prior to the accident.

Moreover, there was no evidence of skid marks which would

indicate that appeliant made no effort to apply his brakes or

swerve to avoid the accident.

The crime of manslaughter by automobile is a

statutory misdemeanor. Code, art. 27, $388. As Judge Moore

said for this Court in Boyd v. State, 22 Md. App. 539, 549.

(1974): "The gist of the crime is causing the death of another

by driving in a ‘grossly negligent manner.™ Gross negligence

has been defined as conduct amounting to a wanton or reck-

less disregard for human life. Boyd, supra, at 550.

From our review of the record, we are satisfied that

there was sufficient evidence to sustain the trial judge's

finding that appellant's conduct amounted to wanton or

reckless disregard for human life and that the court was not

clearly erroneous in holding that appellant was guilty of

violating the provisions of Code, art. 27, $388.

JUDGMENTS AFFIRMED;

COSTS TO BE PAID BY APPELLANT.

-App. 64-

STATE OF MARYLAND * IN THE

Appellant ” COURT OF APPEALS

Vv. ° OF MARYLAND

CRAIG WESLEY MOON * Sept. Term, 1980

Appellee ° No. 141

OPINION

SMITH, J., delivered the Opinion of the Court.

ELDRIDGE and DAVIDSON, J.J., dissent. DAVIDSON, J.,

filed a dissenting opinion in which ELDRIDGE, J., concurs.

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.

-App. 65-

Craig Wesley Moon was convicted in a 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, 291 Md.

424, 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 changing 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 - 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.

-App. 66-

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 precis.ly 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

-App. 67-

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

alochol, 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, ampheta-

mines, barbiturates, dilantin, librium, methadone, opium

alkaloids, salicylates, and valium, among others, for which

tests are tobe 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 alcchol

content in circumvention of the statute. The record indicates

that the specimen of blood was taken at 2:49 a.m. on

-App. 68-

February 18. The report shows a blood alcohol content of

0.165%.)

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 repre-

sents 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

1 The agreed statement of facts says, "[A]n analysis of the

blood for aleohol content was not performed until February

21, 1979." It is true that the report bears that date. We

strongly suspect that the parties have drawn an erroneous

inference, the date being when the results of the tests were

written up, not when they were performed, just as, for

instance, certain x-ray reports show the examination as

having been done on February 18 but indicate that the written

report was prepared or transcribed on February 27. An

obvious purpose for the drug test would be for the attending

physician to be certain that anything he prescribed would not

run counter to that already in his patient's system, just as

some pharmacies monitor prescriptions to be certain that the

consumer is not using antagonistic drugs. See Md. Bd. of

Pharmacy v. Sav-A-Lot, 270 Md. 103, 109, 311 A.2d 242

(1973). The purpose of the test would not be served were it

not available to the physician until three days leter.

-App. 69-

possibly lead to double vision; and

it eauses the individual so affected

by the use of alcohol to take a

longer period of time to respond to

eertain situations leadi to an

increase in reaction time.

2 The agreed statement of facts says, "Dr. Caplan also stated

that he did not agree with the provisions contained in Courts

Article $10-307." In his testimony he indicated that efforts

in Maryland to lower the amount of blood alcohol concen-

tration required for prima facie evidence that one was

intoxicated had not been successful. He stated that there

was more scientific evidence available today than when the

standard was originally adopted. His view that the then

Maryland standard was too lenient is shared by others. See,

e.., H. Campbell, Courts and Prosecutors Are the Weak Link

in Preventing Drunken Driving, 46 A.B.A.J. 43, 45 (1960), and

R. Forney, Sr., and R. Forney, Jr., Prosecution of Drivers

Impaired by Ethanol or Other Chemicals, Legal Medicine

Annual: 1975, 85, 89-90 (1976). Dr. Campbell was at that

time Chairman of the Automotive Safety Subcommittee of

the Colorado State Medical Society and Vice-Chairman of the

American Medical Association's Committee on Medical

Aspects of Automobile Injuries and Deaths. R. Turner, H.

Heise, and C. Muehlberger, Interpretation of Tests for

Intoxication, Chemical Tests for Intoxication Manual,

Committee on Medicolegal Problems, American Medical

Association 57, 60 (1959), state, "In the countries of Western

Europe the limiting values are more stringent. Norway and

Sweden have adopted 0.05% as the blood alcohol limit which

may not be exceeded by motorists. In Denmark, Germany,

and France, the limit is one part per thousand or 0.10%. So

the ceiling value of 0.15%, recommended in the Uniform

Vehicle Code and adopted into the statutes of 28 of our

states, is in keeping with our American tradition of

permitting the maximum freedom for the individual which

does not interfere materially with public safety.

-App. 70-

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 c ive 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 unlaw-

ful for a person to drive or attempt to drive any vehicle while

intoxicated; while his driving ability is impaired by the

consumption of aleohol; 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,

-App. 71-

$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

-App. 72-

and that his driving ability was not

impaired by the consumption of

aleohol.

(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

aleohol, 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

aleohol.

(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

-App. 73-

analysis of his blood or breath, it

shall be prima facie evidence fnat

the defendant was intoxicated.

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 auto-

mobile, 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:

3 Chapter 242 of the Acts of 1981 significantly reduced the

applicable percentages of this section effective July 1, 19381.

-App. 74-

(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 noi admissible

in evidence at the trial.

(b) Consequences of refusal. -

This subsection does not limit the

provisions of the vehicle laws

regarding the consequences of

refusal to submit to a chemical test

or tests.

Maryland's statute relative to chemical tests to

determine blood alcohol content was proposed by the

Legislative Council Committee on the Revision of the \ otor

Vehicle Laws of the State in 1956.4 The committee renewed

its recommendation in its report to the 1959 session of the

General Assembly with an additional proviso that chemical

tests could not be given if the suspected person would not

4 It is of interest to note that the chairman of the committee

was Edgar P. Silver, now a judge of the Eighth Judicial

Circuit, and that committee members included Harry A.

Cole, currently a judge of this Court, and George B. Rasin,

Jr.. now Chief Judge of the Second Judicial Circuit of

Maryland.

-App. 75-

agree to it. The General Assembly enacted Chapter 769 of

the Acts of 1959 as Code (1957, 1959 Cum. Supp.) Art. 35,

§100. The form in which it was enacted closely followed the

1957 committee recommendation with the addition of the

provisions that no person should be compelled to submit to

such tests, that no inference or presumption concerning

either his guilt or innocence might arise by reason of his

refusal to submit to such a test, and that the fact of his

refusal to so submit should not be admissible into evidence at

his trial. During the statute's trip through the General

Assembly, there was added the provision that the specimen of

blood, breath or urine must have been taken within two hours

after the person being prosecuted was first apprehended by

the arresting officer. The statute was applicable to any

criminal prosecution for a violation of Code (1957) Art. 66

1/2, $206 "as amended from time to time," the latter being

the then section making it unlawful "for any person who is an

habitual user of narcotic drugs or any person who is under the

influence of drugs or any person who is under the influence of

intoxicating liquor or narcotic drugs to drive or attempt to

drive any vehicle, streetcar or trackless trolley within this

-App. 76-

State." Section 100 was also applicable to a prosecution "for

a violation of any other law of this State concerning a person

who is under the influence of intoxicating liquor driving or

attempting to drive any vehicle as specified in such other

laws. ..." That statute provided basically as did the present

prior to “ly 1, 1981, as to the percentages. However, as to

breath it required that the amount being measured must be

"two thousand cubic centimeters of his brea*h (true breath or

alveolar air having 5 1/2 percentum of carbon dioxide)... ns

oR. Donigan, Chemical Tests and the Law (2d ed. 1966)

explains:

The concentration of alcohol in

the exhaled (alveolar) breath

coming from deep in the lungs is

due to absorption from the blood as

it circulates through the capillary

vessels which line the air sacs of

the lungs. Thus it will be propor-

tional to the alcoholic content of

the blood circulating through the

lungs. This ratio is about 2,100:1.

Thus, 2,100 volume units (cubic

centimeters or volume ounces) of

alveolar breath wiil contain the

same quantity of alcohol as will one

volume unit of circulating blood.

(id. at 13 (emphasis in original]

To similar effect see R. Burgee, A Study of Chemical Tests

for Alcoholic Intoxication, 17 Md.L.Rev. 193, 198-99 (1957),

Cont'd.

-App. 77-

The statute as orginally enacted also permitted analysis of

urine. Both the requirement of a given amount of air and the

provision for urinalysis have been eliminated.

Instances of Maryland prosecutions using chemical

analysis of blood alcohol content were known Lefore the

enactment of Art. 35, $100 in 1959. See, eg., Lilly v. State,

212 Md. 436, 440, 129 A.2d 839 (1957), where the Court

quoted from the testimony on April 16, 1956, of Dr. Henry C.

Freimuth, then the Chief State Toxicologist, as to the result

of the blood analysis of an individual prosecuted for

manslaughter by automobile and “other testimony .. . that

the intoxication point is 0.15%."

The standards contained in the original Maryland

enactment and those which have remained in Maryland up

until July 1 of this current year stemmed from the

recommendations in 1938 of a joint committee of the

National Safety Council and the American Medical

and T. Friedemann and K. Dubowski, Chemical Testing

Procedures for the Determination of Ethyl Alcohol, Chemcial

Tests for Intoxication Manual, Committee on Medicolegal

Problems, American Medical Association 20, 30 (1959). Thus,

the 2,000 cc. of breath originally required in Maryland was

close to the equivalent of 1 ec. of blood.

~App. 78-

Association. H. Campbell, Courts and Prosecutors Are the

Weak Link in Preventing Drunken Driving, 46 A.B.A.J. 43, 44

(1960); R. Donigan, Chemical Tests and the Law 23 (2d ed.

1966); and H. Porter, Value and Purpose of Chemical Tests,

Chemical Tests for Intoxication Manual, Committee on

Medicolegal Problems, American Medical Association 2, 3

(1959). Those recommendations found themselves embodied

in the Uniform Vehicle Code. Campbell, op. cit.

Minor changes were made in the statute. A major

change came after the submission of the report in 1968 of the

Committee to Study Revision of the Motor Vehicle Laws

appointed by the Legislative Council under the chairmanship

of Judge S. Ralph Warnken. It recommended an implied

consent law "which provides, with many safeguards, for the

suspension of driving privileges of a person who refuses to

submit to breath or urine tests for blood alcohol content upon

6 It is-of-interest-to-note that of the eight physicians who

were members of the American Medical Association

Committee on Medicolegal Problems, two were from

Maryland: Dr. Russell S. Fisher, then and now Chief Medical

Examiner of Maryland, and Dr. Manfred S. Guttmachiner,

then Medical Adviser to the Supreme Bench of Baltimore

City.

-App. 79-

arrest for offenses involving the driving of an automobile

after consumption of alcohol.” Id. at v. Immediately

thereafter, the statute was revised into basically the present

form which closely parallels the Uniform Vehicle Code and

Model Traffic Ordinance. It is to be noted, however, that

although the wording of the original statute was changed, its

basic concepts remained unchanged. The revision of this

section was by Chapter 157 of the Acts of 1969. By Chapter

158 the General Assembly adopted a provision which requires

each applicant for a motor vehicle license expressly to

eonsent to a determination. of the alcoholic content of his

blood, breath, or urine.

We note the: Moon makes no contentions here on

constitutional grounds. Indeed, he could not after the

decision of the Supreme Court in Schmerber v. California,

384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). There an

individual charged with driving an automobile while under the

influence of intoxicating liquor was arrested at a hospital

while receiving treatment for the injuries sustained in an

accident. Upon the advice of counsel, he refused to consent

to the withdrawal of blood for analysis. Nevertheless, a blood

-App. 80-

sample was withdrawn by a physician at the direction of a

police officer. Justice Brennan said for the Court, "that the

privilege [against self-incrimination protects an accused only

from being compelled to testify against himself, or otherwise

provide the State with evidence of a testimonial or communi-

cative nature, and ... the withdrawal of blood and use of the

analysis in question in this case did not involve compulsion to

those ends.” Id. at 761. The Court also rejected contentions

"that the chemical analysis should be excluded from evidence

as the product of an unlawful search and seizure in violation

of the Fourth and Fourteenth Amendments." Id. at 766. It

pointed out, "We are told that the percentage of alcohol in

the blood begins to diminish shortly after drinking stops, as

the body functions to eliminate it from the system." Id. at

770. Accordingly, the Court "concludeld that the attempt to

secure evidence of blood-alcohol content in thlafl case was an

appropriate incident to [Schmerber'd arrest." Id. at 771.

Justice Brennana said the Court "concludeld that the...

record showled no violation of petitioner's right under the

Fourth and Fourteenth Amendments to be free of unreason-

able searches and seizures." Id. at 772.

-App. 81-

Moon has in no way been prejudiced by the fact that

the sample here was withdrawn more than two hours efter the

incident in question. If the statute in question were appli-

eable to the case at bar, his contentions that this delay should

bar the evidence would fail for three reasons, anything in

Major v. State, 31 Md. App. 590, to the contrary notwith-

standing. The statute, $10-303, specifies, "The specimen of

breath or blood shall be taken within two hours after the

person accused is apprehended." Moon was not arrested at

the time. It was some days after the incident in question

before charges were preferred. Secondly, an analysis such as

was done here reflects the amount of alcohol in the blood at

the time it was withdrawn, not at the time of the incident.

As time passes the alcohol in the blood disappears as Justice

Brennan noted for the Court in Schmerber. This process is

explained in lay terms in 2 Am.dur. Proof of Facts, Blood

Tests (1959):

Tests show that five minutes after

a single glass of beer, alcohol is

found in the blood stream which

was not there before. It is more

than half absorbed within fifteen

minutes, eighty per cent or so in

one halfhour, and all within two

hours. Being absorbed it immedi-

-App. 82-

ately goes into the transportation

system of the body, the blood

stream, and is carried all over the

body and is deposited in the brain,

liver, kidneys, and muscles in every

part of the body that contains

water. Immediately after absorp-

tion in the brain, liver, etc., the

level of alcohol is about the same

as that in the blood at all times.

At the conclusion of the absorption

process the alcohol is simply

distributed throughout the whole

body in proportion to the water

content. [Id. at 587]

To like effect see generally R. Donigan, Chemical Tests and

the Law 44-46 (2d ed. 1966); R. Forney, Sr., and R. Forney,

Jr., Prosecution of Drivers Impaired by Ethanol or Other

Chemicals, Legal Medicine Annual: 1975, 85, 86-88 (1976); 3

R. Gray, Attorneys’ Textbook of Medicine para. 59A.31-.32

(3d ed. 1981); 4 R. Gray, op. cit., para. 133.23-.24; and

address of Lewis F. Gundry, M.D., as set forth in The

Compulsory Use of Chemical Tests for Alcoholic Intoxication

- A Symposium, 14 Md. L. Rev. 111, 115 (1954). Thus, a

eat as to the alcohol content of Moon's blood at a time

more than two hours after the incident would not be less

favorable to Moon than a report as to the alechol content at a

time within the two haur period. The third reason, as

— Pees cee

-App. 83-

explained by the Ohio court in a similar case, Barber v.

Curry, 40 Ohio App.2d 346, 349-51, 319 N.E.2d 367 (1974), is

the time lag would relate not to admissibility of evidence but

as to the presumptions arising from the evidence.

Courts in other states have approached problems

similar to that before the Court in various ways, often

depending upon the statute of the individual state. For

instance, in State v. Robarge, 35 ConnSupp. 511, 391 A.2d

184 (1977), the defendant was convicted of negligent

homicide with a motor vehicle. The blood sample in question

was taken in the hospital emergency room in the presence of

two police officers after the accused was urder arrest, but

without her consent. Her claim that this violated the

Connecticut statute similar to the Maryland statute was said

by the Court to be "wholly unsound" since its provisions

"pertainled only to prosecutions for the operation of a motor

vehicle while under the influence of intoxicating liquor or

drugs. . . .£" 391 A.2d at 185. A short time later the

Connecticut Supreme Court in State v. Singleton, 174 Conn.

112, 384 A.2d 334 (1977), had before it a case where the

defendant was found guilty of misconduct with a motor

-App. 84-

vehicle "in that he 'with criminal negligence in the operation

of a motor vehicle or in consequence of his intoxication while

operating a motor vehicle, .. . cause[d the death of another

person.” The blood sample in that instance was taken with

his consent. To his contention, however, that the evidence

should be suppressed because there had not been compliance

with all of the procedural requirements of the section

relative to blood samples, the court said that the statute by

its express terms applied to a criminal prosecution for the

offense of operating a motor vehicle while under the

influence of intoxicating liquor or drugs or both and that the

Legislature had not made it applicable to the offense with

which the defendant was charged. 384 A.2d at 336. Its

position was in contrast with that of the court in People v.

Keen, 396 Mich. 573, 242 N.W.2d 405 (1976). There the court

held that the result of a blood alcohol test was not admissible

in evidence in a prosecution for manslaughter. Consent to

the test had been duly given. The statute was similar to that

of Maryland. The court said, "It would exceed the scope of

the consent given to allow test results obtained on the

representation that they will be used in prosecutions where

-App. 85-

the maximum penalty for a first offender is 90 days

imprisonment to be used in prosecutions for a felony with a

maximum penalty of 15 years." 242 N.W.2d at 411-12.

By dicta or by way of express holding, courts in

Colorado, Georgia, Idaho, Minnesota, Montana, Nebraska,

New York, Damnapianies South Dakota, and Wyoming have

held statutes similar to that in Maryland do not bar admission

of evidence of blood aleohol content in prosecutions for an

offense such as our manslaughter by automobile. See, eg.,

People v. Duemig, 620 P.2d 240, 244 (Colo. 1980), cert.

denied, 101 S.Ct. 2048 (1981); Strong v. State, 231 Ga. 514,

516, 202 S.E.2d 428 (1973), cert. denied, 416 U.S. 994 (1974);

State v. Fisk, 92 Idaho 675, 680, 448 P.2d 768 (1968); State v.

Capelle, 285 Minn. 205, 172 N.W.2d 556, 559 (1969); State v.

Campbell, 615 P.2d 190 (Mont. 1930); Hoffman v. State, 160

Neb. 375, 384, 70 N.W.2d 314 (1955); People v. Leis, 13

A.D.2d 22, 24, 213 N.Y.S.2d 138 (1961); Commonwealth v.

Trefry, 249 Pa. Super. Ct. 117, 375 A.2d 786, 792-93 (1977);

State v. Aarhus, 80 S.D. 569, 572, 128 N.W.2d 881 (1964); Van

Order v. State, 600 P.2d 1056, 1058 (Wyo. 1979); and State v.

Chastain, 594 P.2d 458, 461 n.4 (Wyo. 1979).

-App. 86-

Other cases, usuaily under the peculiar wording of the

statutes involved, have rejected admission of evidence in

circumstances similar to the case at bar. See, e.g., People v.

Todd, 59 Ill. 2d 534, 544, 322 N.E.2d 447 (1975); State v.

Hitchens, 294 N.W.2d 686, 689 (Iowa 1980); and State v.

Bellino, 390 A.2d 1014, 1023 (Me. 1978).

A little bit different situation was before the courts in

Morrow v. State, 303 A.2d 633 (Del. 1973), and Murray v.

United States, 358 A.2d 314 (D.C. 1976). Morrow was

convicted of operating a motor vehicle while under the

influence of intoxicating liquor. A blood sample was taken

from him while he was admittedly incapable of refusing to

submit to it. The Delaware statute is to the effect that any

person who is unconscious or otherwise in a condition

rendering him incapable of refusal to consent shall not be

deemed to have withdrawn that consent. Morrow contended

that upon regaining the full exercise of his faculties he should

be allowed to withdraw his implied consent, notwithstanding

the statutory provision. In rejecting Morrow's contention,

Viee Chancellor Marvel said for the Delaware Supreme Court

that to grant such a privilege "would give to the severely

-App. 87-

intoxicated . . . an advantage over the less inebriated, the

latter being required, when capable of making a choice, to

decide whether or not to refuse to take the test... ." Id. at

635. A virtually identical contention was made in Murray.

He had been convicted by a jury of two counts of negligent

homicide and driving under the influence of intoxicating

liquor. The court there said, "To interpret the Act to provide

that unconscious motorists involved in serious accidents later

could object successfully to the introduction of scientific

evidence against them, while conscious motorists would be

denied that right in similar circumstances, would lead to an

absurd result." Id. at 319.

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. We read the

several sections together, they having been originally enacted

as one section. The blood sample here simply was not taken

for the purpose of prosecution. The provisions of $$10-302 to

-309 are applicable to testing done for a prosecution. They

are an authorization for evidence so withdrawn to be received

as prima facie evidence. As we have previously indicated,

-App. 88-

before the passage of the predecessor to §$10-302 to -309,

evidence of blood alcohol content had been received in

Maryland. The statute in no way provides that in no other

circumstance shall evidence of blood alcohol content be

received. The blood here not having been withdrawn under

the provisions of that statute, its requirements as to consent

simply are not applicable. Moon was not under arrest nor had

he been charged. The record indicates that the blood was

withdrawn as a part of routine hospital procedures. There are

understandable reasons in connection with the treatment of

Moon for the various tests that were made, tests that were by

no means confined to alcohol but covered a broad spectrum of

drugs. The evidence here is in no different position from that

of any other evidence which the State might subpoena as, for

instance, documentary evidence to prove that an individual

had submitted a forged birth certificate to make the proof of

age required by $1-106(d), Transportation Article, in

connection with an original driver's license application, or

that which would establish that a person had altered the

odometer of a motor vehicle in violation of $22-415.

-App. 89-

Moon would have us hold that the conviction is void

because the trial judge referred in his decision to the

presumptions contained in $10-307. If this reference was in

error, then it was harmless beyond a reasonable doubt since in

the very next paragraph he referred to the testimony of Dr.

Caplan which clearly spelled out the effects of a blood

alcohol concentration such as Moon had.

Because of the theory upon which the Court of Special

Appeals determined Moon's appeal, it was not obliged to

address certain of his contentions. Therefore, those questions

must be considered on the remand.

Judgment of the Court of

ecial als reversed and

case remanded to that court

for consideration of

undecided issues; appellee to

pay the costs.

Davidson, J., dissenting:

The first question this case presents is whether the

exclusionary rule contained in Md. Code (1974, 1980 Repl.

Vol.) $10-309 of the Courts and Judicial Proceedings Article,

which, under certain circumstances, renders the results of

chemical tests for alcohol inadmissible in evidence, is

-App. 90-

applicable to chemical test results administered initially for

the purpose of medical treatment of the accused. The

majority concludes that the exclusionary rule applies to the

results of chemical tests administered by, or at the direction

of, a police officer initially for the purpose of prosecution but

is inapplicable to tests administered by, or at the direction

of, a physician for initial purpose of medical treatment. In

my view, the plain meaning of the statute and its legislative

history support the conclusion that the exclusionary rule

contained in $10-309 is applicable to evidence of chemical

test results, regardless of the purpose for which they were

initially administered.

The legislative history of Md. Code (1974, 1980 Repl.

Vol. & 1980 Supp.) 510-302 through $10-309 of the Courts and

Cudicial Proceedings Article, effective 1 January 1974, shows

that these sections were preceded by Md. Code (1957, 1859

Repl. Vol.), Art. 35, $100 of the Evidence Title, effective 1

June 1959. An examination of the legislative history of Art.

35, $100 shows that as long ago as 1954, the Maryland

Legislature was concerned with the problem of promoting

safety on the highways through the successful prosecution of

|

‘

.

|

vere

F

-App. 91-

drunk drivers. One means considered was to make the results

of chemical tests for alcohol admissible in evidence. For

several years, the Legislature debated whether such tests for

alcohol were sufficiently reliable to be admissible. See

Burgee, A Study of Chemical Tests for Alcoholic Intoxication,

17 Md.L.Rev. 193 (1957); The Compulsory Use of Chemical

Tests for Alcoholic Intoxication - A Symposium, 14 Md.L.Rev.

111 (1954). Ultimately, it decided that such tests could be

admitted under certain limited conditions designed to protect

the accused, the primary one being that the accused affirma-

tively consent to the administration of the test. By creating

statutory protections for the individual, the Legislature

established that while its purpose was to protect the societal

interest in successful prosecution of drunk drivers, that

purpose was not to be accomplished at the expense of

individuel rights which the Legislature deemed to be

essen tial.

In 1954, in the House of Delegates (House), House Bill

(HB) No. 94 was introduced as an amendment to the Motor

-App. 92-

Vehicles Title.! House Bill No. 94 authorized the admission

of chemical test results in evidence in prosecutions for a

violation of a specified section of the Motor Vehicles Title?

that made it unlawful for anyone under the influence of

intoxicating liquor to drive or attempt to drive any vehicle.

1 HB No. 94, introduced 12 February 1954, ist reading,

Committee on Judiciary, 1954 House Journal of Proceedings,

pp. 198, 223, proposed an amendment to

", . . Section 171 of Article 66 1/2

of the Annotated Code of Maryland

(1951 Edition), title ‘Motor

Vehicles,’ sub-title ‘Persons Under

the Influence of Intoxicating Liquor

or Narcotic Drugs,’ authorizing the

admission into evidence of the

findings of chemical tests for

intoxication, and relating generally

to the provisions applying to such

tests."

2 Md. Code (1951), Art. 66 1/2, $171 provided in pertinent

part:

“Persons Under the Influence of

Intoxicating Liquor or Narcotic

Drugs.) It shall be unlawful for any

person who is an habitual user of

narcotic drugs or any person who is

under the influence of intoxicating

liquor or narcotic drugs to drive or

attempt to drive any vehicle, street

ear or trackless trolley within this

State."

-App. 93-

It also established certain presumptions to be applied in

determining whether an accused was under the influence of

intoxicating liquor. House Bill No. 94 contained no

protections for the accused in the form of conditions relating

to the circumstances under which chemical tests must be

administered. In the absence of any prescribed conditions,

there was no basis for an exclusionary rule and none was

provided. This Bill was not enacted.

In 1955, HB No. 41 was introduced, not as an amend-

ment to the Motor Vehicles Title, but rather as an amend-

ment to the Evidence Title, adding $100 to Art. 35 of the

Annotated Code of Maryland.? House Bill No. 41 broadened

.3 WB No. 41, introduced 12 January 1955, passed in House,

1955 House Journal of Proceedings, pp. 58, 246, 259, Ist

reading in Senate, Committee on Judicial Proceedings, 1955

Senate Journal of Proceedings, p. 240-41, proposed an

amendment

"to add Section 100 to Article 35 of

the Annotated Code of Maryland

(1951 Edition and 1954 Supple-

ment), title 'Evidence', . . . to be

under the new sub-title 'Cherical

Tests for Intoxication’, establishing

certain tests for the amount of

alcohol in the defendant's blood in

any criminal prosecution for a

violation of the laws concerning

Cont'd.

-App. 94-

the scope of its 1954 predecessor, HB No. 94, by authorizing

the admission of chemical test results in evidence in any

criminal prosecution for a violation of any law concerning a

person driving or attempting to drive while under the

influence of intoxicating liquor. Like HB No. 94, it also

established certain presumptions; it contained no express

protections for the accused in the form of conditions

governing the administration of the tests; and it contained no

exclusionary rule. House Bill No. 41 was, however, amended

to provide that

"no person shall be compelled to

submit ... to the chemical analysis

provided for in this section; and no

inference or presumption concern-

ing either his guilt or innocence

shall be made by reason of his

refusal to so submit to such

chemical analysis." House Journal

of Proceedings, at 246 (1955).

This amendment was the initial indication of a legislative

intent to create statutory protections deemed to be essential

for an accused. It was also the initial indication of a

driving or attempting to drive

certain vehicles while under the

influence of intoxicating liquor and

establishing the evidential effect of

such tests." (Emphasis added.)

-App. 95-

legislative intent that test results be admissible only upon the

condition that the accused not be compelled to submit to the

test. Because the first condition created to protect an

accused was that an accused not be compelled to submit to a

chemical test, it is apparent that the protection of that right

was deemed by the House to be essential and of paramount

importance. House Bill No. 41, as amended, was passed by

the House but not the Senate.

In 1956, the Legislative Council Committee on the

Revision of the Motor Vehicle Laws of the State of Maryland

drafted HB No. 13, introduced in 1957 as an amendment to

Art. 35, the Evidence Title.* House Bill No. 13 as originally

4 HB No. 13, introduced 2 January 1957, passed in House,

1957 House Journal of Proceedings, pp. 298-99, Ist reading in

Senate, Committee on Judicial Proceedings, 1957 Senate

Journal of Proceedings, p. 241, proposed

"to add Section 108 to Article 35 of

the Annotated Code of Maryland

(1951 Edition and 1956 Supple-

ment), title 'Evidence' . . . to be

under the new sub-title ‘Chemical

Tests for Intoxication’, establishing

certain tests for the amount of

alcohol in the defendant's blood in

any criminal prosecution for a

violation of the laws concerning

driving or attempting to drive

Cont'd.

-App. 96-

introduced, authorized the admission of chemical test results

PS AAR EYL TEE ES

in evidence in any criminal prosecution for violation of any

law concerning driving or attempting to drive while under the

influence or intoxicating liquor. Like its 1955 predecessor,

HB No. 41, it established certain presumptions; it contained |

no express protections for the accused in the form of

conditions governing the administration of tests; and it

contained no exclusionary rule. More specifically, it did not

contain a provision expressly stating that no person be

compelled to submit to a chemical test. Notwithstanding the

absence of such an express provision, the Committee, in its

Report to the General Assembly of 1957, stated at 382:

", . . The proposed legislation does

not require any involuntary taking

of a person's blood to determine the

percentage of alcohol therin. It

merely establishes the evidential

effect of such tests based on the

percentage of alcohol found in the

blood." (Emphasis added.)

House Bill No. 13, like its 1955 predecessor HB No. 41, was

amended to provide expressly for certain protections for the

certain vehicles while under the

influence of intoxicating liquor, and

establishing the evidential effect of

such tests."

-App. 97-

accused. It expressly stated that no person shall be

compelled to submit to a chemical test and that inference of

guilt or innocence should not arise because he refused to

submit to the test. More significantly, HB No. 13 was further

amended to provide that

“evidence of the said chemical

analysis shall not be deemed

admissible if obtained contrary to

the provisions of this sub-section. .

. -" House Journal of Proceedings,

at 272 (1957).

This amendment established for the first time an exclusionary

rule that prohibited the admission of chemical test results in

evidence unless certain corditions designed to protect the

accused were satisfied. It indicated an intensification of a

legislative intent to protect the accused by providing a

method of enforcement for the statutory rights the amend-

ment created. House Bill No. 13, as amended, was passed by

the House but not by the Senate.

In 1958, Senate Bill (SB) No. 38 authorized the

admission of chemical test results in evidence in any criminal

prosecution for a violation of any law concerning driving or

attempting to drive while under the influence of intoxicating

-App. 98-

liquor.° It also established certain presumptions, and it

expressly protected the accused from being compelled to

submit to such tests by making inadmissible evidence which

violated that statutorily created right. The Legislative

Council Committee on the Revision of the Motor Vehicle

Laws, in its Report to the General Assembly of 1959, stated

at 208:

"It is recognized by the Committee

that indiscriminate use of chemical

tests may abridge the rights of

innocent persons. To mitigate this

fear the Committee views favor-

ably the provision of Senate Bill

No. 38 of the 1958 regular session

which stipulated that the chemical

tests could not be given if the

suspected person would not agree

to it. With this qualifying proviso,

the Committee would view favor-

ably legislation introduced to

provide chemical tests." (Emphasis

added.)

Thus, the Committee expressed the view that the provision

that no person shall be compelled to submit to a test meant

° SB No. 38, introduced 6 February 1958, 2nd reading,

Judicial Proceedings Committee, 1958 Senate Journal of

Proceedings, pp. 64, 70.

Tiel oA cam wey eeethaas Rati ste RTE ihe ah OYE EE AER NN

-App. 99-

that the test could not be administered unless the accused

affirmatively consented.

Although SB No. 38 was not enacted, in 1959, HB No.

132 was introduced to amend the Evidence Title adding

"Section 100 to Article 35 of the Annotated Code of Maryland

(1957 Edition). .. an House Bill No. 132, as originally

introduced, was similar to its 1958 predecessor, SB No. 38, in

that it authorized the admission of the results of chemical

tests in evidence in any criminal prosecution for a violation

of any law concerning driving or attempting to drive while

under the influence of intoxicating liquor. It established

certain presumptions, and it expressly protected the accused

from being compelled to submit to the test by making

inadmissible evidence which violated that statutory right. In

addition, HB No. 132 as originally proposed, added three

additional protections for the accused by imposirg three

additicnal conditions governing the administration of the

tests. Only certain qualified medical personnel were

-App. 100-

6 The accused was permitted

authorized to perform the test.

to have a physician of his own choosing perform an additional

test.’ The accused was entitled to the results of the test

before trial.® Moreover, two amendments providing

additional protections for an accused were passed. The first

6 Art. 35, $100(d) provided:

"Only a physician, or qualified

medical personnel, acting at the

request of a police officer, or a

person acting at the request of a

physician, can withdraw blood for

the purpose of determining the

alcoholic content therein. This

limitation does not apply to the

taking of a breath test or a urine

specimen."

7 art. 35, $100(e) provided:

"The person tested shall be per-

mitted to have a physician of his

own choosing administer a chemical

test in addition to the one

adm‘nistered at the directiion of

the police officer."

8 Art. 35, $100(f), as amended, provided:

"Upon the request of the person

who was tested, the results of the

test will be made available to him

before trial by an official

certificate which shall be

admissible in evidence."

-Aep e 10 l-

amendment provided that a specimen of blood must be taken

within two haurs after the accused was apprehended by an

9 The second amendment reinforced the

arresting officer.

exclusionary rule by making the fact that an accused refused

to submit to a blood test inadmissible in evidence. !9 House

9 Art. 35, $100(a), as amended, provided in pertinent part:

"In any criminal prosecution for a

violation of Section 206 of Article

66 1/2 of this Code (1957 Edition,

as amended from time to time) or

for a violation of any other law of

this State concerning a person who

is under the influence of intoxi-

eating liquor dr‘ving or attempting

to drive any vehicle as specified in

other laws, the amount of alcohol

in the defendant's blood at the time

alleged as shown by chemical

analysis of the defendant's blood,

urine, breath or other bodily

substance, shall be admitted as

evidence, provided, however, that

the specimen of blood, breath, or

urine must have been taken within

two hours after the person being

prosecuted was first apprehended

py the arrest officer. . . ."

mphasis added.

10 art, 35, $100(c), as amended, provided in pertinent part:

" . . nor shall the fact of his

refusal to so submit be admissible

into evidence at his trial."

-App. 1902-

Bill No. 132 was enacted and became Art. 35, $100 of the

Evidence Title, effective 1 June 1959.

The legislative history of Art. 35, $100, the

predecessor of §10-302 through $10-309 of the Courts and

Judicial Proceedings Article, embodied the Legislature's

initial determination that certain chemical test results for

alcohol were sufficiently reliable to permit their admission in

evidence under certain limited conditions. Those conditions

embodied statutorily created rights, deemed to be essential

for the protection of the accused, and were made enforceable

by an exclusionary rule, rending chemical test results

inadmissible if obtained in violation of those express

conditions. Of primary importance in the established

statutory scheme was the express right of the accused not to

be compelled to submit to a test and, as interpreted by the

Legislative Council Committee, the right to have the

chemical test results excluded unless the accused had

affirmatively consented.

Thus, the legislative history of Art. 35, $100

establishes that while the Legislature's purpose was to

protect the societal interest in successful prosecution of

-App. 103-

drunk drivers, that purpose was not to be accomplished at the

expense of rights of an accused deemed to be essential.

There is nothing to indicate that the applicability of the

exclusionary rule depended upon whether chemical test

results used in a prosecution were administered initially for

the purpose of prosecution or initially for the purpose of

medical treatment. The conclusion that whenever chemical

test results are used for the purpose of criminal prosecution,

the exclusionary rule applies regardless of the initial purpose

for which the test was administered, is further supported by

an examination of the subsequent development of the

statutory scheme.

In 1968, after four years of intensive study and

consideration, the Committee to Study the Revision of the

Motor Vehicle Laws, under the chairmanship of Hon. S. Ralph

Warnken, submitted a "Proposed Revision of the Motor

Vehicle Laws of the State of Maryland" to the Legislative

Council of Maryland. The Committee's proposals were based

upon the Uniform Vehicle Code, adopted in whole or in part

by many other states. The proposed draft followed "very

closely the organization of the parallel provisions of the

-App. 104-

Uniform Vehicle Code."!! Included among the proposed

improvements was a recommendation for the adoption of an

implied consent law, which would have provided, "with many

safeguards," for the suspension of driving privileges of a

person who refused to submit to chemical tests for aleohol. !2

Unlike many other states, the Maryland Legislature

rejected the proposed implied consent law. Instead, on 23

April 1969, it enacted Chapter 158, Art. 66 1/2, $92A,

effective 1 July 1969, which required Maryland residents to

consent expressly to the administration of a chemical test as

1 See Warnken Committee to Study the Revision of the

Motor Vehicle Laws, "Proposed Revision of the Motor Vehicle

Laws" (1968), p. iii.

12 See Warnken Committee Report at p. v. The proposed

text of the implied consent provision provided at p. 82:

"Any person who operates or

attempts to operate a motor

vehicle upon the public highways of

this State shall be deemed to have

given consent . .. to a chemical

test or tests of his breath or urine,

for the purpose of determining the

alcoholic content of his blood. . . ."

(Emphasis added.)

-App. 105-

a condition to obtaining a driver's license. !8 By requiring the

13 The preamble to Art. 66 1/2, $92A states that the purpose

of the Act is

"to provide as a condition to

obtaining or renewing a motor

vehicle driver's license, the

applicant shall ressly consent to

the taking of a chemical test... ."

(Emphasis added.)

Art. 66 1/2, §92A(a) and (b) provided in pertinent part:

a) Prior to the issuance of any

license or renewal thereof to exer-

cise the privilege of operating a

motor vehicle upon the highways of

this State, the applicant, as a

condition precedent to the issuance

or renewal of said license, shall be

required by the Department to sign

a statement, under oath or affirma-

tion, containing the following

language:

l_ hereby consent to take a

chemical test to determine the

alcoholic content of my blood,

breath, or urine... .™

b) In return for the privilege of

operating a motor vehicle on the

highways of this State given to a

nonresident under this Article, any

nonresident who operates. or

attempts to operate a motor

vehicle upon the highways of this

State, shall be deemed to have

given consent to take a chemical

Cont'd.

-App. 106-

express consent of an accused before administering a

chemical test, the Maryland Legislature reiterated its intent

test for alcohol." (Emphasis added.)

_The successor to Art. 66 1/2, $92A, Md. Code (1977,

1980 Cum. Supp.) $16-205.1 of the Transportation Article,

effective 1 July 1977, was amended, by Chapter 244 of the

1981 Laws of Maryland, effective 1 July 1981, and therefore,

not applicable here, to provide an implied consent provision

applicable to Maryland residents. That Chapter states in

pertinent part:

™a) 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."

“b) A person may not be

compelled to take a chemical test

for alcohol... ."

-App. 107-

and purpose to protect rights of an accused deemed to be

essential. !4

On the same day the Legislature enacted Art. 66 1/2,

§92A, it also repealed and reenacted Art. 35, $100.

Subsection (c) was amended to provide an additional

protection to an accused by establishing the right to select

the type of test to be administered.!® More important, Art.

14 in light of the Maryland Legislature's rejection of the

implied consent provisions contained in the Uniform Motor

Vehicle Code, cases from jurisdictions other than Maryland,

relied upon by the majority, are not persuasive.

15 Art, 35, $100(c), as amenced, provided in pertinent part:

"In any event, the defendant shall

have the right to select the type of

test administered, and if facilities

or equipment are not available for

such test then none shall be given,

and this fact shall not create any

inference or presumption concern-

ing either his guilt or innocence by

reason of his inability to take a

test, nor shall the fact of his

inability to take such a test be

admissible in evidence at his trial,

nor shall this fact be considered a

refusal to take a test under Section

92A of this Article."

Chapter 240 of the 1981 Laws of Maryland, effective 1

July 1981, not here applicable, amended $10-305 of the

Courts and Judicial Proceedings Article, the successor to Art.

Cont'd.

-App. 108-

35, $100(g), which then provided that an officer advise an

accused that he "may, but need not" submit to a chemical

test, and had been interpreted by this Court in dicta in

Mauldin v. State, 239 Md. 592,595, 212 A.2d 502, 504 (1965),

as not requiring that an accused affirmatively consent to a

test, was deleted from the Evidence Title. A requirement

that an officer request that the person take a chemical test

and file a report if that person refused, was enacted in Art.

66 1/2, $92A of the Motor Vehicles Title.!® By creating an

35, $100(c), to provide that under certain circumstances a

police officer, rather than an accused, may select the type of

test to be administered and that persons incapable of re fusing

to take a test shall be deemed not to have withdrawn

consent. More specifically, $10-305(c) provides:

"Any person who is dead, uncon-

scious, or otherwise in a condition

rendering him incapable of test

refusal shall be deemed not to have

withdrawn consent."

16 art. 66 1 /2, §92A(c) provided in pertinent part:

‘“c) It shall be the duty of any

police officer who stops or detains

any person who he has reasnable

grounds to believe is or has been

operating or attempting to operate

a motor vehicle under the influence

of alcohol, or who is or has been

operating or attempting to operate

a motor vehicle while his ability

Cont'd.

-App. 109-

additional statutory right and by explicitly providing that

affirmative consent of the accused be obtained, the

Legislature once again reiterated its determination to protect

the rights of the accused.

in 1973, Art. 35, $100 was revised and reenacted as

$10-302 through $10-309 of the Courts and Judicial

Proceedings Article. The Revisor's Notes accompanying §10-

302 through $10-309 indicate that those sections contained

new language derived from Art. 35, §100 and that the changes

made were changes in style and language. While the Revisor's

Notes are not law and may not be considered to have been

enacted as part of the Act, ch. 2, $19, 1973 Laws of

MdSpecSess., they are entitled to weight. See Rentals

Unlimited, Inc. v. Administrator, Motor Vehicle Admin., 286

was impaired by the consumption of

alcohol to do all the following

things:

"2. Request that he take a

chemical test or tests of his blood.

"4. File with the Department of

Motor Vehicles . . . a sworn report

... that said person refused to take

the chemical test for alcohol... ."

(Emphasis added.)

-App. 110-

Md. 104, 109, 405 A.2d 744, 748 (1979). These Notes establish

that the language revisions in $10-302 through $10-309 were

not intended to produce substantive changes in the law or its

purpose.

Only one other relevant change occurred when, in

1977, Art. 66 1/2, $6-205.1, the successor to Art. 66 1/2,

§92A, was revised and reenacted as §16-205.1 of the

Transportation Article. While Art. 66 1/2, $6-205.1(c)(2)

required that officers request persons to submit to chemical

tests, $16-205.1(c)(2) requires that officers request such

persons to permit chemical tests to be administered. The

Revisor's Note accompanying $16-205.1 establishes that this

language change is one of style, thus clarifying the previous

language and establishing that the affirmative consent of an

accused is required before a chemical test is administered by

or at the direction of a police officer.

The Legislature's initial determination to protect the

rights of an accused by requiring that an accused not be

compelled to submit to a chemical test, its adoption of an

exclusionary rule to enforce that right, its subsequent

repeated determinations to provide additional protections for

-App. lll-

an accused, its rejection of an implied consent statute and its

adoption of an express consent statute, its requirement that

an accused affirmatively consent to a test administered by or

at the direction of a police officer, and the Leglislative

Council Committee's repeated statements that there be no

"involuntary taking of a person's blood” and that chemical

tests could not be administered if an accused "would not

agree to it,” all lead to a single conclusion. In my view, this

history establishes a legislative purpose to protect the rights

of an accused, particularly the right not to be compelled to

submit to a_ test, whenever chemical test results are

ultimately used for the purpose of criminal prosecution.

Sections 10-302 through 10-309 expressly state that

chemical test results are admissible in evidence under certain

limited conditions in any criminal prosecution for a violation

of any state law concerning a person accused of driving while

intoxicated. More specifically, the exclusionary rule

contained in $10-309 expressly states that such test results

are inadmissible in such prosecutions if obtained contrary to

the requirements set forth in the subtitle. In my view, the

plain and unambiguous language of the statute establishes

-App. 112-

that the exclusionary rule applies whenever test results are

utlimately used for the purpose of criminal prosecution. Such

an interpretation is manifestly consonant with the

Legislature's broad purpose.

Moreover, there is no express language in $10-302

through §10-309 that states that the exclusionary rule does

not apply when results of a chemical test, administered by or

at the direction of a physician initially for the purpose of

medical treatment are subsequently used for the purpose of

prosecution. In addition, there is nothing in the legislative

history to indicate a legislative intent to make the

applicability of the exclusionary rule dependent upon whether

chemical test results used in a prosecution were administered

initially for the purpose of prosecution or initially for the

purpose of medical treatment. I cannot, as does the majority,

insert words creating an exception to the applicability of the

exclusionary rule that makes the statute express an intention

different from its clear meaning. See Holy Cross Hosp. of

Silver Spring, Inc. v. Maryland Employment Sec. Admin., 288

Md. 685, 698, 421 A.2d 944, 950 (1980); In re: James S., 286

Md. 702, 705, 410 A.2d 586, 591 (1980).

-App. 113-

The majority's reliance on the case of Lilly v. State,

212 Md. 436, 129 A.2d 839 (1956), to support its conclusion

that chemical test results administered for the purpose of

medical treatment are admissible in evidence, is misplaced.

In Lilly, a case involving a prosecution for a violation of the

predecessor to Md. Code (1957, 1976 Repl. Vol.), Art. 27,

$388, the State was not contending that the accused was

operating a motor vehicle under the influence of liquor.

Nevertheless, the results of a chemical test were admitted in

evidence. The facts show, however, that the chemical test

was administered at the direction of a police officer after he

had obtained the affirmative consent of the accused. Under

these circumstances, Lilly can lend no support to the

majority's conclusion that the results of chemical tests

administered at the direction of a physician for the purpose

of medical treatment are admissible in evidence. Rather, in

my view, the plain language of the statute, the Legislature's

broad purpose, and its insistence on protecting the rights of

an accused lead to the conclusion that whenever chemical

test results are used for the purpose of criminal prosecution,

the exclusionary rule applies regardless of the initial purpose

-App. 114-

for which the test was administered.

The remaining question this case presents is whether

$i. -309 is violated when an accused does not affirmatively

consent to a chemical test, administered by or at the

direction of a physician, initially for the purpose of medical

treatment.

Section 10-309 of the Courts and Judicial Proceedings

Article provides in pertinent part:

"A person may not be compelled to

submit to e& chemical analysis

provided for in this subtitle.

Evidence of chemical analysis is

not admissible if obtained contrary

to its provisions."

The plain language of this section establishes that chemical

test results are inadmissible in a prosecution if the accused is

compelled to submit to the test.

In State v. Loscomb, 291 Md. 424, 435, 435 A.2d 764,

770 (1981), this Court unanimously agreed!” that $16-205.1 of

the Transportation Article and $10-302 through $10-309 of

the Courts and Judicial Proceedings Article are in pari

materia and must be construed harmoniously. Therefore,

17 Eldridge, J., did not participate.

-App. 115-

$16-205.1 is significant in determining the meaning of the

word "compelled." Section 16-205.1 provides in pertinent

part:

“e) ... If a police officer stops

or detains any individual who the

police officer has reasonable

grounds to believe is or has been

driving or attempting to drive a

motor vehicle while intoxicated or

while his driving ability is impaired

by the consumption of alcohol, the

police officer shall:

(2) Request that the individual

permit a chemical test to be taken

of his blood. ee (Eriphasis added.)

In Loscomb, we determined that when a chemical test

is administered by or at the direction of a police officer

initially for the purpose of prosecution, the affirmative

consent of an accused must be obtained and that the

exclusionary rule of $10-309 applies when there has been a

failure to obtain such affirmative consent. This conclusion

was based upon the rationale that under such circumstances

the accused was compelled to submit to the test.

I recognize that there is no express statutory provision

requiring affirmative consent when a chemical test is

administered by or at the direction of a physician for the

-App. 116-

initial purpose of medical treatment. However, the

Legislature's initial determination to protect the rights of an

accused by requiring that an accused not be compelled to

sub mit to a chemical test, its adoption of an exclusionary rule

to enforce that right, its rejection of an implied consent

statute and its adoption of an express consent statute, its

requirement that an accused affirmatively consent to a test

administered by or at the direction of a police officer, and

the Legislative Council Committee's repeated statements

that there be no "involuntary taking of a person's blood," and

that chemical tests could not be administered if an accused

"would not agree to it,” all lead to a single conclusion. In my

view, this history establishes a legislative purpose to prctect

the rights of an accused by requiring affirmative consent to a

chemical test whenever chemical test results are ultimately

used for the purpose of criminal prosecution. I cannot

conclude, as does the majority, that the Legislature intended

the definition of the word "compelled" to include a person

who has not given affirmative consent to a chemical test

administered by or at the direction of a police officer

initially for the purpose of prosecution, but not to include a

ee

-App. 117-

person who has not given affirmative consent to such a test

administered by or at the direction of a physician initially for

the purpose of medical treatment. In the final analysis, a

person who has not affirmatively consented to the admini-

stration of a chemical test is equally compelled to submit to

that test whether administered by a physician for the initial

purpose of medical treatment or administered by a police

officer for the initial purpose of prosecution. In addition,

such a person is equally prejudiced when such chemical test

results are admitted in evidence, whether the test was

administered for the initial purpose of medical treatment or

for the initial purpose of prosecution.

In view of the plain language of the statute, the

Legislature's broad purpose and its insistence on protecting

the rights of an accused, I would hold that the exclusionary

rule applies to and prohibits the admission in evidence of

chemical test results administered by a physician initially for

the purpose of medical treatment without the affirmative

consent of the accused.

Here the record shows that the chemical test results

admitted in evidence were administered at the direction of a

-App. 118-

physician for the purpose of medical treatment withaut

obtaining the effirmative consent of the accused. Under

these circumstances, the accused was compelled to submit to

the chemical test in violation of $10-309. Moreover, the

record shows that the accused did not have the right to select

the type of test administered as required by $10-305. In my

view, the exclusionary rule contained in $10-309 prohibited

the edmission of such evidence. The trial court committed

prejudicial error when it admitted the chemical test results.

Given the majority's view expressed in Loscomb, that the

exclusionary rule contained in $10-309 is applicable in

prosecutions for violations of Art. 27, $388 as well as in

prosecutions for violations of Md. Code (1977) $21-902 of the

Transportation Article, effective 1 July 1977, I would affirm

the judgment of the Court of Special Appeals, reversing the

trial court's judzment.

Judge Eldridge authorizes me to say that he concurs in

the views herein expressed.

-App. 119-

CRAIG WESLEY MOON * IN THE

Appellant * COURT OF

Vv. * SPECIAL APPEALS

STATE OF MARYLAND * OF MARYLAND

Appellee * Sept. Term, 1980

* No. 154

* October 30, 1980

~*~ * * * * * *

OPINION

Gibert, C.J., Morton, Moore, JJ.

In a non-jury trial in the Circuit Court for Carroll

County, the appellant was convicted on two counts of man-

slaughter by automobile (Md. Ann. Code, art. 27, $388) and

one count of driving while intoxicated (Md. Transp. Ann.

Code, $21-902). He was given concurrent three yea:

sentences on the manslaugher convictions and a one year

concurrent sentence on the driving while intoxicated

conviction.

The record indicates that in the early morning hours of

February 18, 1979, the appellant was driving his car north on

the road leading from Westminster, Maryland, to the

Pennsylvania line when he collided with a car being driven

-App. 120-

south on that same road. As a result of the accident the

driver and passenger in the southbound car were killed.

There was evidence produced by the State that the

accident occurred in the southbound lane and was caused by

the appellant's vehicle being driven across the center line into

the southbound lane. The appellant produced evidence that

the frontal collision occurred just over the center line in the

nor thb ound lane.

There was testimony from the driver of a car which

had been following appellant's car at some distance.

Although he did not see the accident take place, he arrived

immediately afterward. He found appellant wedged into the

driver's seat of his car. He was unable to open the doors of

appellant's car and detected a strong odor of alcohol.

According to State Trooper Jack L. Hinkle, he arrived

at the accident scene at 12:34 a.m., some thirty to forty-five

seconds after it occurred. He went to appellant's wrecked

ear and realized he could not move appellant because he was

trapped behind the steering wheel. It was necessary to cut

the roof off the car to release him. The trooper noticed the

odor of alcohol emanating from appellant's car.

——————$———

-App. 121-

After appellant was extricated from his car he was

placed aboard a State police helicopter which took him to the

Shock Trauma Unit of the University Hospital. The hospital

toxology report indicated that a blood test was administered

to appellant at 2:49 a.m. The specimen indicated that

appellant's blood contained .165 of methyl alcohol (drinking

aleoho)).

Appellant first contends that the blood test should

have been excluded because the blood sample was not

extracted within two hours after the appellant was taken by

the police from the scene of the accident.

Md. Cts. & Jud. Proc. Ann. Code $10-302 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 $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

alcohol content of his blood."

Section 10-303 of the Cts. & Jud. Proc. article

provides:

"The specimen of breath or blood

shall be taken within two hours

after the person accused is appre-

hended."

-App. 122-

Section 10-307(e) of Cts. & Jud. Proc. article provides:

"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 shali be prima

facie evidence that the defendant

was intoxicated."

The appellant was found guilty on two counts of

violating Md. Ann. Code, art. 27, $388, manslaughter by

automobile, motorboat, etc., as distinguished from conviction

under art. 27, §388A, homicide by motor vehicle while

intoxicated. This Court held in Losecomb v. State, 45 Md.

App. 598, 612-13 (1980),! "that the blood-breath test that is

articulated in Courts Art. §10-307, along with Transportation

Art. §16-205.1(c) is as much a part of Article 27, $388 as it is

Article 27, §388A, if and when the basis of the charge under

section 388 is that the accused was intoxicated. We hold,

therefore, that whenever a person is charged under Md. Ann.

Code art. 27, $388 (Manslaughter by motor vehicle), and the

basis of the charge is the alleged intoxication of the accused

while operating a motor vehicle, no evidence derived from

1 The Court of Appeals granted certiorari and the case has

been assigned No. 38, September Term, 1980.

-App. 123-

any chemical analysis administered or caused to be

administered by the police, is admissible in evidence unless

there has been compliance with Courts Art. $10-305. The

burden, of course, is on the State to satisfy the court that

compliance has occurred."

Here there can be no question that the appellant's

alleged intoxication formed a substantial basis of the charge

of manslaughter by automobile for the trial judge so found in

the course of articulating his reasons for finding appellant

guilty of that offense. Moreover, he went on to find him

guilty of the separate charge of driving while intoxicated in

violation of Transportation article, §21-902.

Chief Judge Gibert, who authored Loscomb, set forth

the steps to be followed by the police:

"To avoid future difficulty

surrounding either a blood or breath

test, irrespective of whether the

charge be laid under Article 27,

§388 or 388A, or under the

Transportation Article, the better

practice for the detaining officer

to follow is:

1) request the person to submit

to a chemical test to

determine the alcoholic

content of that person's

blood;

-App. 124-

2) if the person is a licensed

Maryland operator, furnish

a copy of the consent form

that is required of all

Maryland licensed

opera tors;

3) inform the person of his or

her right to elect whether

to submit to a breath test

or a blood test or to refuse

to submit to either;

4) advise the person that if he

or she elects to submit to a

chemical test that he or

she has the privilege of

choosing a physician to

administer the test, but the

physician is in addition to

the physician designated by

the officer;

5) inform the person detained

that if he or she refuses to

submit to a chemical test,

no inference or presump-

tion concerning guilt or

innocence arises because of

the refusal;

6) apprise the person that the

results of a chemical test

give rise to the presump-

tions specified in Courts

Art. $10-307;

7) advise the person that he or

She is subject to admini-

strative penalties for

failure to submit to the

test." 45 Md. App. 612.

Not one of these steps was followed by the police.

Moreover, there was evidence that the blood test was not

-App. 125-

administered to the appellant within the two hour time

limitation imposed by Cts. & Jud. Pro. art. $10-303. See

Major v. State, 31 Md. App. 590 (1976), cert. denied, 278 Md.

722.

The State argues that $10-303 has no application to

the present case because the appellant was not an "accused"

who had been "apprehended" at the time the blood test was

taken and he was not charged until some ten days later. We

think the State reads the statute too narrowly. The police

had reason to believe that the appellant had been drinking

because of the odor of aleohol emitting from him at the scene

of the accident and during the helicopter trip to the

hospital. They knew that one of the occupants of the other

car was dead at the scene of the accident and the other had

sustained critical injuries.

It is certainly understandable that because of the

serious injuries which appellant had received at the accident

the police found it inappropriate, if not impossible, to follow

the steps outlined in Loscomb. The fact remains, however,

that the steps were not pursued. In our opinion, this failure

to follow the mandates of the statutes relating to tests for

-App. 126-

alcohol content of appellant's blood made inadmissible the

toxology report containing the notation that appellant's blood

contained .165 percent alcohol. Likewise it made

inadmissible the testimony of Dr. Yale H. Caplan, Chief

Toxologist of the Medical Examiner's Office, with respect to

the meaning of the figure .165 set forth in the toxology

report. It also precluded the judge from employing the

presumption as to intoxication set forth in Cts. & Jud. Proc.

art., $10-307.

We are not persuaded, as the State argues in its brief,

that if this Court's holding "that the trial court's reference to

§10-307 was error, such error should be considered harmless

in view of the exhaustive expert. testimony on the

significance of Appellant's blood alcohol level of .165

percent."

In view of our holding, we do not reach the appellant's

remaining contentions.

JUDGMENTS REVERSED;

CASE REMANDED FOR A NEW TRIAL;

COSTS NOT REALLOCATED AS PART

OF THE JUDGMENTS OF THIS COURT

PURSUANT TO MARYLAND RULE

1082f.