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View Case Details
 
STATE OF MARYLAND
vs.
CRAIG WESLEY MOON
 
Case:
No. 141 September Term 1980
 
Location:
Court of Appeals of Maryland
 
Date:
October 14, 1981, Decided
 
Attorneys:
Maureen O'Ferrall Assistant Counsel General with whom was Stephen H. Sachs Counsel General on the brief for appellant.
John L. Kopolow Assistant Public Defender with whom was Alan H. Murrell Public Defender on the brief for Appellees.
 
Court:
Murphy, C. J. and Smith Digges Eldridge Cole Davidson and Rodowsky JJ. Smith J. delivered the opinion of Court. Eldridge and Davidson JJ. dissent. Davidson J. filed a dissenting opinion at page 479 infra in which Eldridge J. concurs.
 
Author:
The Hon. Justice Smith
 

We shall here hold that the exclusionary provisions of Maryland Code (1974 1979 Cum. Supp.) SEC. 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 Court of Special Appeals in its unreported opinion in this case.

Craig Wesley Moon was convicted in a non jury trial in the Circuit Court for Carroll County on two counts of manslaughter by automobile (Code (1957 1976 Repl. Vol.) Art. 27 SEC. 388) and one count of driving while intoxicated (Code (1977) SEC. 21-902 (a) Transportation Article). On appeal 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 charging him with operating a vehicle in violation of SEC. 21-902 Transportation Article. Court of Special Appeals reversed holding that the evidence must be excluded because there had not been compliance with 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 SEC. 10-303. We granted the State's petition for the writ of certiorari.

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 precisely 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 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 alcohol 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 amphetamines barbiturates dilation Librium methadone opium alkaloids salicylates and valium among others for which tests are to be made. Items added to the form in longhand in this instance include quinine acetaminophen and placidly. 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 alcohol content in circumvention of the statute. The record indicates that the specimen of blood was taken at 2:49 a.m. on February 18. The report shows a blood alcohol content of 0.165%. *fn1

The trial Court in his opinion summarized correctly certain of the testimony of Dr. Caplan:

In the opinion of Doctor Caplan a blood alcohol level of .165 represents 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 possibly lead to double vision; and it causes the individual so affected by the use of alcohol to take a longer period of time to respond to certain situations leading to an increase in reaction time. *fn[2]

The controversy here concerns SEC.(s) 10-302 to -309 Courts and Judicial Proceedings Article which were contained in Code (1957 1971.Repl. Vol.) Art. 35 SEC. 100 prior to its rectification by Chapter 2 of the Acts of the Special Session of 1973 as a part of Court 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 drive a vehicle in violation of SEC. 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) SEC. 21-902 Transportation Article makes it unlawful for a person to drive or attempt to drive any vehicle while intoxicated; while his driving ability is impaired by the consumption of alcohol; 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 SEC. 279. With regard to the coverage of SEC. 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 SEC. 10-304. A defendant is given the right in SEC. 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 SEC. 10-306.

Section 10-307 states:

(a) In general. -- In a proceeding in which a person is charged with a violation of SEC. 388A of Article 27 or with driving or attempting to drive a vehicle in violation of SEC. 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 and that his driving ability was not impaired by the consumption of alcohol.

(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 alcohol 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 alcohol.

(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 analysis of his blood or breath it shall be prima facie evidence that the defendant was intoxicated. *fn[3]

We have already spelled out the scope of SEC. 21-902 of the Transportation Article. Code (1957 1976.Repl. Vol. 1978 Cum. Supp.) Art. 27 SEC. 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 SEC. 10-307 of Court Article regarding intoxication under the vehicle laws of this State." It is distinguishable from manslaughter by automobile Art. 27 SEC. 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:

(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 not 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 Motor Vehicle Laws of the State in 1956. *fn4 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 agree to it. The General Assembly enacted Chapter 769 of the Acts of 1959 as Code (1957 1959 Cum. Supp.) Art. 35 SEC. 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 SEC. 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 intoxicating liquor or narcotic drugs to drive or attempt to drive any vehicle streetcar or trackless trolley within this 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 July 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 breath (true breath or alveolar air having 5 1/2 percentum of carbon dioxide) . . . ." *fn5 The statute as originally 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 before the enactment of Art. 35 SEC. 100 in 1959. See e.g. Lilly v. State 212 Md. 436 440 129 A.2d 839 (1957) where 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 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). *fn6 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 Court 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 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 consent to a determination of the alcoholic content of his blood breath or urine.

We note that 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 sample was withdrawn by a physician at the direction of a police officer. Justice Brennan said for 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 communicative nature and . . . the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends." Id. at 761. 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 Court "conclude[d] that the attempt to secure evidence of blood-alcohol content in th[at] case was an appropriate incident to [Schmerber's] arrest." Id. at 771. Justice Brennan said Court "conclude[d] that the . . . record show[ed] no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures." Id. at 772.

Moon has in no way been prejudiced by the fact that the sample here was withdrawn more than two hours after the incident in question. If the statute in question were applicable 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 notwithstanding. The statute SEC. 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 Court in Schmerber. This process is explained in lay terms in 2 Am. Jur. 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 half hour and all within two hours. Being absorbed it immediately 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 absorption 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 Counsels' Textbook of Medicine para.59A.31-.32 (3d ed. 1981); 4 R. Gray op. cit. para.133.23-.24; and address of Lewis P. 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 report 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 alcohol content at a time within the two hour period. The third reason as 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 Court in various ways often depending upon the statute of the individual state. For instance in State v. Robarge 35 Conn. Supp.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 under arrest but without her consent. Her claim that this violated the Connecticut statute similar to the Maryland statute was said by Court to be "wholly unsound" since its provisions "pertain[ed] 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 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 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. 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 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 Pennsylvania South Dakota and Wyoming have held statutes similar to that in Maryland do not bar admission of evidence of blood alcohol content in prosecutions for an offense such as our manslaughter by automobile. See e.g. 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. 1980); 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).

Other cases usually 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 Court 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 Vice Chancellor Marvel said for the Delaware Supreme Court that to grant such a privilege "would give to the severely 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. 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 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 SEC.(s) 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 before the passage of the predecessor to SEC.(s) 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 SEC. 16-106 (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 SEC. 22-415.

Moon would have us hold that the conviction is void because the trial Court referred in his decision to the presumptions contained in SEC. 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 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 Court of Special Appeals reversed and case remanded to that court for consideration of undecided issues; Appellees to pay the costs.

Dissenting: The Hon. Justice Davidson

The first question this case presents is whether the exclusionary rule contained in Md. Code (1974 1980.Repl. Vol.) SEC. 10-309 of Court and Judicial Proceedings Article which under certain circumstances renders the results of chemical tests for alcohol inadmissible in evidence is 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 the 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 SEC. 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.) SEC. 10-302 through SEC. 10-309 of Court and Judicial Proceedings Article effective 1 January 1974 shows that these sections were preceded by Md. Code (1957 1959.Repl. Vol.) Art. 35 SEC. 100 of the Evidence Title effective 1 June 1959. An examination of the legislative history of Art. 35 SEC. 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 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 affirmatively 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 individual rights which the Legislature deemed to be essential.

In 1954 in the House of Delegates (House) House Bill (HB) No. 94 was introduced as an amendment to the Motor Vehicles Title. *fn1 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 *fn2 that made it unlawful for anyone under the influence of intoxicating liquor to drive or attempt to drive any vehicle. 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

 
Notes:

*fn1 The agreed statement of facts says "[A]n analysis of the blood for alcohol 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 later.

*fn2 The agreed statement of facts says "Dr. Caplan also stated that he did not agree with the provisions contained in Courts Article SEC. 10-307." In his testimony he indicated that efforts in Maryland to lower the amount of blood alcohol concentration 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.g. 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."

*fn3 Chapter 242 of the Acts of 1981 significantly reduced the applicable percentages of this section effective July 1 1981.

*fn4 It is of interest to note that the chairman of the committee was Edgar P. Silver now a Court of the Eighth Judicial Circuit and that committee members included Harry A. Cole currently a Court of this Court and George B. Rasin Jr. now Chief Court of the Second Judicial Circuit of Maryland.

*fn5 R. 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 proportional 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 will 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) and T. Friedemann and K. Dubowski Chemical Testing Procedures for the Determination of Ethyl Alcohol Chemical 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 cc. of blood.

*fn6 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. Guttmacher then Medical Adviser to the Supreme Bench of Baltimore City.

---------------------------------------------------DISSENTING NOTES, DAVIDSON-----------------------------------------

*fn1

*fn2