272 A.3d 376
Md.2022Background
- Early morning stop of Alexander Dejarnette for unsafe driving; Trooper Brown arrested him at 2:12 a.m. on suspicion of DUI.
- At the barrack Dejarnette agreed to a breath test; breath samples at 2:43 a.m. and 2:45 a.m. both read .094.
- Dejarnette moved in limine to exclude breath results, arguing noncompliance with COMAR 10.35.02.08G’s 20‑minute pre‑test observation requirement.
- The circuit court denied the motion (finding officers observed the defendant and treating observation issues as going to weight), a jury convicted Dejarnette of DUI per se and driving while impaired, and the Court of Special Appeals affirmed.
- The Court of Appeals granted certiorari and held (1) COMAR’s 20‑minute observation noncompliance affects weight, not admissibility, and (2) the record supports the circuit court’s factual finding that officers complied with the observation period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to comply with COMAR 10.35.02.08G 20‑minute observation renders breath results inadmissible | Dejarnette: Noncompliance creates compelling indicia of unreliability and requires exclusion (admissibility) | State: Statutory admissibility prerequisites are in CJ Subtitle 3; COMAR contains no exclusionary rule, so observation noncompliance goes to weight | Court: Admissibility is governed by statute (CJ Subtitle 3); COMAR has no exclusionary provision for the observation period — noncompliance goes to weight, not admissibility |
| Whether the record supports a finding officers complied with the 20‑minute observation | Dejarnette: Officers did not continuously observe him; paperwork/reading rights interrupted observation, so finding of compliance is erroneous | State: Observation need not be continuous fixed visual attention; officers were in close proximity and used multiple senses; record shows searches and monitoring | Court: Record supports compliance (timing, searches, proximity, officer testimony); court properly found compliance |
| Whether trial court failed to make required findings concerning observation (preservation) | Dejarnette: Trial court did not make explicit factual findings; issue preserved and requires reversal | State: Issue not preserved as argued; in any event court made adequate findings and was not required to make more detailed findings | Court: Court of Special Appeals correctly concluded the trial court made factual findings on the record; preservation and merits fail for Dejarnette |
Key Cases Cited
- Motor Vehicle Admin. v. Deering, 92 A.3d 495 (Md. 2014) (describing implied‑consent/administrative‑per‑se framework)
- Casper v. State, 521 A.2d 1281 (Md. Ct. Spec. App. 1987) (discusses prima facie admissibility factors and notes extreme indicia of unreliability could affect admissibility)
- Brice v. State, 526 A.2d 647 (Md. Ct. Spec. App. 1987) (explains burden to impeach presumptive reliability of certified breath tests)
- Reed v. Hill, 770 S.E.2d 501 (W. Va. 2015) (excluded preliminary test for observation violation; recognized observation may use sight, smell, hearing)
- Vanderpool v. Dir. of Revenue, 226 S.W.3d 108 (Mo. 2007) (holding lack of uninterrupted observation alone, without evidence of smoking/vomiting/or other contamination, does not render test inadmissible)
- McFarlin v. State, 975 A.2d 862 (Md. 2009) (a violation of a state regulation does not automatically trigger suppression)
- King v. State, 76 A.3d 1035 (Md. 2013) (refusing to create suppression remedy where legislature provided alternate scheme)