Alexander Dejarnette v. State of Maryland
No. 41
Court of Appeals of Maryland
March 25, 2022
September Term, 2021; Circuit Court for Somerset County, Case No. C-19-CR-19-000156; Argued: February 8, 2022
Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Harrell, Jr., Glenn T. (Senior Judge, Specially Assigned), JJ. Opinion by Watts, J.
Court of Appeals concluded that record in case supported factual finding that officers complied with twenty-minute observation period before administration of breath test. And, Court of Appeals determined that trial court made findings on record that officers complied with twenty-minute observation period set forth in COMAR 10.35.02.08G.
In this case, the State, Respondent, charged Alexander Dejarnette, Petitioner, with four counts related to driving under the influence of alcohol—namely, negligent driving, driving under the influence of alcohol, driving under the influence of alcohol per se, and driving while impaired. Prior to trial in the Circuit Court for Somerset County, Dejarnette filed a motion in limine to exclude the results of a breath test, arguing that the twenty-minute observation period set forth in
In this case, we consider whether compliance with the twenty-minute observation period set forth in
We hold that the plain language of the relevant statutes is clear and that the statutes do not provide that noncompliance with the twenty-minute observation period set forth in
BACKGROUND
In the early morning of April 6, 2019, Maryland State Police Trooper Derek Brown, who was on patrol, observed a vehicle move to the shoulder without using a signal and then jerk back into the lane in which it had been traveling. Trooper Brown saw the same vehicle again move completely onto the shoulder of the road and then jerk back into the lane in front of his car, which caused him to brake suddenly. At 1:59 a.m., Trooper Brown stopped the vehicle, which was being driven by Dejarnette. Immediately upon contact with Dejarnette, Trooper Brown smelled the odor of alcohol emanating from the vehicle and noticed that Dejarnette’s eyes were bloodshot and glassy. Trooper Brown advised Dejarnette of the reason for the stop and asked him to step out of the vehicle to perform field sobriety tests. Trooper Brown smelled alcohol on Dejarnette’s breath after he exited the vehicle. Dejarnette admitted to having had a couple of drinks hours earlier. Trooper Brown conducted field sobriety tests and determined that Dejarnette exhibited numerous signs of being under the influence of alcohol.
At 2:12 a.m., Trooper Brown arrested Dejarnette and transported him to Maryland State Police Barrack X in Princess Anne. Trooper Brown read the DR-15 Advice of Rights
Motion in Limine and Motions Hearing
Prior to trial, Dejarnette filed a motion in limine, seeking to exclude the results of the breath test, arguing that the officers did not comply with
On December 18, 2019, the circuit court held a hearing on the motion. The State called two witnesses, Trooper Brown, who conducted the traffic stop, and Sergeant Todd, who conducted the breath test. Trooper Brown testified that on April 6, 2019, he was working the night shift and at 1:59 a.m., he conducted a traffic stop of a vehicle that Dejarnette was driving. At 2:12 a.m., Trooper Brown arrested Dejarnette for suspected driving under the influence of alcohol. After the arrest, Trooper Brown searched Dejarnette’s mouth and pockets. Trooper Brown cuffed Dejarnette’s hands behind his back and placed him in the front passenger seat of the police car.
Trooper Brown testified that he and Dejarnette arrived at the barrack at 2:21 a.m. The two were met by Sergeant Todd, the duty officer at the barrack. Trooper Brown conducted another search of Dejarnette in Sergeant Todd’s presence in the hallway of the barrack. Trooper Brown did not find anything in Dejarnette’s mouth, and Trooper Brown testified that he would have placed anything found in Dejarnette’s pockets in a bag. Trooper Brown then escorted Dejarnette to a processing room down the hall. Trooper Brown described the processing room as a small room, approximately eight or ten feet by twelve or fourteen feet, with a desk and two chairs.
Trooper Brown testified that, between 2:21 and 2:37 a.m., he and Dejarnette were together for the entire time. Dejarnette was not handcuffed while sitting in the processing room. Trooper Brown read the DR-15 Advice of Rights form to Dejarnette, while Sergeant Todd was in and out of the processing room. At approximately 2:37 a.m., Dejarnette
Sergeant Todd testified that on April 6, 2019, he was the duty officer at the barrack and performed the breath test with the intoximeter. Sergeant Todd testified that Trooper Brown brought Dejarnette into the barrack through the back door, where he met them. Sergeant Todd asked Dejarnette whether he had anything in his mouth and made Dejarnette open his mouth and stick out his tongue. Sergeant Todd looked in Dejarnette’s mouth and watched as Trooper Brown searched Dejarnette. According to Sergeant Todd, he was in and out of the processing room once Dejarnette was placed in the room and was being read the DR-15 Advice of Rights form in the room. Sergeant Todd testified that when he was in the processing room, he did not recall observing any problems with Dejarnette, such as vomit on him. Sergeant Todd testified that Dejarnette “didn’t have anything to drink the whole time [he] was with him or have anything in his mouth.” Sergeant Todd explained that, “[e]ach time we do the breath test, I do the breath test twice, before he blows in the intoximeter, I have him open his mouth just so I can see if there’s anything in his mouth.”
Dejarnette did not testify or call any witnesses. Dejarnette’s counsel argued that “filling out paperwork” and reading the DR-15 Advice of Rights form should not count as “observation time” because the officer is not looking at the individual. The circuit court responded: “Well, wouldn’t you agree . . . the officer at that time was from you to your client, and, certainly, he would have smelled vomit, smelled a burp, would have heard a burp, would have heard candy wrappers or something of that ilk and would have looked up?”
The prosecutor argued:
I think we’re okay because we know he didn’t have anything to eat or drink, we know he didn’t have any foreign substance in the mouth, and we know that he didn’t smoke, and that is what COMAR requires for the breath test. It doesn’t say anything about belching. It doesn’t say anything about burping.
In addition, the prosecutor argued that Dejarnette could raise issues concerning the observation period allegedly being lacking to the jury, but that the test should not be barred from admission into evidence. The circuit court stated that there was no “evidence that anyone observed [Dejarnette] belch or vomit or there was vomit on his clothes or that he had a stick of Trident that they missed[.]”
The circuit court found that Trooper Brown was able to observe Dejarnette during the drive to the barrack and while advising Dejarnette, stating:
[F]ollowing what COMAR intends, is that it’s a 20-minute period before the test starts. That’s clear. And, quite frankly, when you’re arresting somebody, and you’re putting them in the car, and you’re driving, and you’re taking them out of the car, and you search them again, and you are taking them down to the room, you know, presumably, they’re in close proximity to you, they’re not away from you, and you can observe whether they’ve belched or vomited, the same as you can in a room. But, quite frankly, I think best practices is that, you’re in a room with them, as the trooper said, from as close as you were today with your client, and you’re able to be close enough to smell, to touch, if necessary, if you suspect there’s something in their mouth, to see, all of your tactile senses are in such a close range, that you can make those observations.
The circuit court determined:
Trooper Brown, no dispute whatsoever, was with him the entire time between 2:21 and 2:43. Sergeant Todd was in there. And he’s as honest as the day is long, and he said, I can’t remember whether I was on the desk more than I was in the room. . . . But we do not have just one person observing during the 22 minutes, we’ve got two people, a combination of the two people, that are making observations. And neither one observed a belch, a vomit, a stick of gum, a cigarette, anything to the contrary that would invalidate the test, at least for the testimony I’ve heard under 10.35.02.08G.
The circuit court concluded that the requirements of the regulation went to weight rather than the admissibility of the breath test, and referred to the pattern jury instruction that allows the jury to “disregard” the test result if it believes that the test was not administered properly, stating:
Because, obviously, the jury instruction for the test is that they can disregard the test if they believe that it was not administered properly. And I think that’s why it’s in the jury instruction specifically about weight. Because the jury can say, you know, no offense to Trooper Brown and [Sergeant] Todd, but I just don’t think they did it right. And, therefore, I’m not going to give the test any weight under the jury instruction.
The circuit court denied the motion in limine.
A jury trial occurred on January 7, 2020. At trial, Dejarnette’s counsel raised the issue of the observation time and the accuracy of the breath test results on several occasions. During opening statements, Dejarnette’s counsel stated: “I’m going to ask you to pay careful attention to the testimony you’re going to hear with regards to the procedures and policies that need to be followed in order to ensure that that test result is accurate.” When Trooper Brown testified that the DR-15 Advice of Rights form advises an individual about “[t]he periods of suspension on his license and whether or not he wants to take a breath test[,]” Dejarnette’s counsel objected on the “[g]rounds previously registered[.]” The circuit court overruled the objection and granted the defense a continuing objection. During Sergeant Todd’s testimony, the State moved to admit into evidence the intoximeter test strip from the breath test administered to Dejarnette and the State of Maryland Notification to Defendant of Result of Test for Alcohol Concentration form, which Sergeant Todd filled out with the test results. Dejarnette’s counsel objected, and the circuit court overruled the objection and admitted the exhibits into evidence.
In instructing the jury, the circuit court gave the pattern instruction on driving under the influence of alcohol per se, see MPJI-Cr 4:10.3 (Driving Under the Influence of Alcohol Per Se), which included the following: “When deciding what weight, if any, to give to the test result, you may consider all of the evidence in the case, including evidence that tends to show the test result was inaccurate or unreliable.”4
After being convicted, Dejarnette appealed. On July 6, 2021, the Court of Special Appeals affirmed the circuit court’s judgment. See Dejarnette, 251 Md. App. at 469, 254 A.3d at 525. The Court of Special Appeals held that the relevant statutes are “unambiguous” and do not “require compliance with the COMAR regulation twenty-minute observation period as a condition to the admissibility of evidence[.]” Id. at 471, 254 A.3d at 526. The Court of Special Appeals stated that, “[t]he COMAR regulation does not provide requirements for how an individual is to be observed, nor does it define ‘observe.’” Id. at 473, 254 A.3d at 527. The Court of Special Appeals concluded that there is no exclusionary rule for a violation of a regulation, i.e., “that the violation of a State regulation does not trigger the exclusionary rule.” Id. at 475, 254 A.3d at 528 (cleaned up). The Court of Special Appeals held that compliance with the twenty-minute observation period goes to the weight of the breath test evidence, not admissibility. See id. at 480, 254 A.3d at 532.
The Court of Special Appeals determined that compliance with the twenty-minute observation period requirement does not mean that an officer must look continuously at a suspected drunk driver for twenty minutes and instead an officer “may use numerous senses to observe an individual to ensure they do not eat, drink, smoke, or put something in their mouth.” Id. at 478, 254 A.3d at 530-31. The Court of Special Appeals concluded that Dejarnette had failed to preserve the issue of whether the circuit court failed to find that
Petition for a Writ of Certiorari
On August 20, 2021, Dejarnette petitioned for a writ of certiorari, raising the following three issues:
- Where Petitioner challenged the admissibility of a breath test on the grounds that the police failed to sufficiently observe him for the requisite period preceding the test, does the failure to comply with the observation period go to the admissibility of the breath test results rather than their weight?
- Does the statutory and regulatory scheme necessitate excluding breath tests where the police fail to comply with the observation period?
- Do principles of evidentiary law—and overwhelming out-of-state authority necessitate excluding breath tests where the police fail to comply with the observation period?
- Did the Court of Special Appeals err in holding that the officers’ testimony supported a finding of compliance with the observation period?
- Did the Court of Special Appeals err in holding that the argument—that the trial court failed to make any finding regarding compliance—was not preserved and also failed on the merits?
STANDARD OF REVIEW
In Brooks v. State, 439 Md. 698, 708, 98 A.3d 236, 241-42 (2014), we explained that the standard of review of an evidentiary ruling depends on whether the trial court’s “ruling was based on a pure question of law, on a finding of fact, or on an evaluation of the admissibility of relevant evidence.” “Questions of law are reviewed without according the trial [court] any special deference; findings of fact are assessed under a ‘clearly erroneous’ standard; and an assessment of the admissibility of relevant evidence is reviewed under an abuse of discretion standard.” Id. at 708, 98 A.3d at 242 (citations omitted).
“The interpretation of a statute is a question of law that this Court reviews de novo.” Johnson v. State, 467 Md. 362, 371, 225 A.3d 44, 49 (2020). We assume that the General Assembly’s “intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly.” Id. at 371, 225 A.3d at 49-50 (cleaned up). “If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Rogers v. State, 468 Md. 1, 14, 226 A.3d 261, 269 (2020), cert. denied, ___ U.S. ___, 141 S. Ct. 1052 (2021) (citation omitted). “In addition, we neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Id. at 14, 226 A.3d at 269 (citation omitted).
I.
The Parties’ Contentions
Dejarnette contends that, for the results of a breath test to be admissible, the State must establish that law enforcement officers complied with the twenty-minute observation period set forth in
The State responds that the Court of Special Appeals was correct in holding that compliance with
Analysis
We begin by examining the relevant statutes. Dejarnette was charged with violations of
who has received training in the use of the equipment in a training program approved by the toxicologist under the Postmortem Examiners Commission and who is either a police officer, a police employee, an employee of the office of the Chief Medical Examiner, or a person authorized by the toxicologist under the Postmortem Examiners Commission.
Under
(1) For at least 20 minutes before a breath sample is taken, an individual may not:
- Eat or drink;
- Have any foreign substance in the individual’s mouth or respiratory tract; or
- Smoke.
(2) The individual shall be observed and mouth checked.
(3) Observation of the individual shall be performed by:
- A breath test operator;
- Other uniformed or civilian law enforcement personnel; or
- Any combination of a breath test operator and uniformed or civilian law enforcement personnel.
(4) The testing procedure shall begin with a blank test to ensure that no alcohol is present in the breath path of the breath testing instrument.
(5) A validation test shall be run before the individual begins the testing process.
(6) If the breath testing instrument fails to obtain a reading plus or minus 10 percent of the stated alcohol concentration on the validation test, then the subject test shall be discontinued.
(7) The individual shall be instructed to take a breath and then deliver a breath sample into the instrument by blowing into the mouthpiece and breath tube until instructed to stop.
(8) After each subject breath sample, a blank check shall be performed to ensure that no alcohol is present in the breath path.
(9) Two breath samples shall be collected and analyzed by the breath testing instrument.
(10) A third breath sample shall be collected only if the absolute difference between the results of the first and second samples exceeds 0.020 g/210L.
(11) A validation test of known alcohol concentration shall be run after the individual has given the required number of breath samples.
(12) If the instrument fails to obtain a reading plus or minus 10 percent of the stated concentration on the validation test, then the subject test is invalid.
(13) The lower of the two or lowest of the three results of the subject test shall be truncated to the second decimal place and reported as the result of the breath test.
From the plain language of the statutes in Subtitle 3 of Title 10 of the Courts and Judicial Proceedings Article, it is clear that
Exclusion of breath test results is tied to compliance with statutory requirements, not regulatory requirements. The statutes, and in particular
The plain language of the statutes in Subtitle 3 is clear and unambiguous as to the
Where neither the controlling statutes nor the relevant COMAR regulation contains
Given the absence of an applicable exclusionary rule, we, like the Court of Special Appeals, hold that an alleged lack of compliance with the twenty-minute observation period set forth in
Dejarnette relies on the 35-year-old case of Casper v. State, 70 Md. App. 576, 521 A.2d 1281, cert. denied, 310 Md. 129, 527 A.2d 50 (1987), and argues that the “[f]ailure to comply with the twenty-minute observation period constitutes compelling indicia of unreliability” and thus such a failure raises an issue as to the admissibility of the evidence. In Casper, 70 Md. App. at 579, 521 A.2d at 1283, a breath test was administered to a defendant after standard field sobriety tests suggested that the defendant was not sober. The breath test indicated that the defendant‘s “blood contained .21% alcohol by weight.” Id. at 579, 521 A.2d at 1283. At trial, the State established the officer‘s qualifications to administer the breath test and introduced a written statement from a toxicologist with the Maryland Department of Post Mortem Examiners certifying that the breathalyzer used to test the defendant was “approved for chemical analysis to determine blood alcohol concentrations.” Id. at 579, 521 A.2d at 1283. In addition, the statement from the toxicologist certified that the “(1) Breath Alcohol Simulator; (2) Certified Breathalyzer Solution; and (3) Ampule Gauge, as manufactured and supplied by the breathalyzer‘s maker, were approved for use in conjunction with the machine.” Id. at 579-80, 521 A.2d at 1283. Ampules “are sealed glass containers of a specific chemical compound made by the company that manufactures the breathalyzer apparatus.” Id. at 583 n.5, 521 A.3d at 1285 n.5. The officer who administered the breath test testified as to the procedures used
On appeal, the defendant asserted, among other things, that the “ampules used in his test should have been examined and that the State should have demonstrated that the ampules remained effective after nine months.” Id. at 583, 521 A.2d at 1285. The Court of Special Appeals rejected the defendant‘s argument, holding “that the State toxicologist‘s approval of ampules certified by an independent laboratory using random testing [met] the requirements of [CJ §] 10-304(b) and constitute[d] prima facie evidence that any ampule in the lot [was] chemically accurate.” Id. at 585-86, 521 A.2d at 1286 (footnote omitted). The Court was unpersuaded by the “assertion that the age of [the] ampules made [the defendant‘s] test results unreliable and, therefore, inadmissible.” Id. at 586, 521 A.2d at 1286. The Court pointed out that the defendant “was free to challenge that reliability with evidence tending to show that the ampules had changed since being certified.” Id. at 586, 521 A.2d at 1286 (citation omitted).
The Court of Special Appeals held:
Before results from a chemical breath test are admissible into evidence, the State must demonstrate that: (1) the test was administered within two hours of defendant‘s apprehension; (2) a qualified person administered the test; and (3) the State toxicologist approved the equipment (including ampules) used to determine defendant‘s blood alcohol content. Once these three points are proven, the State has demonstrated the prima facie reliability of the results and they may come into evidence subject to [two] caveats[.]
Id. at 591, 521 A.2d at 1289. In describing the first caveat, the Court of Special Appeals stated that, notwithstanding proof of the three facts, “a defendant must be given an opportunity to offer competent evidence challenging the reliability of his test results.” Id. at 591, 521 A.2d at 1289. Where a defendant presents evidence that “so compromises the reliability of the results that to admit them would deprive the defendant of a fair trial or due process, the results must be excluded.” Id. at 591-92, 521 A.2d at 1289. Although the Court of Special Appeals rejected the claim that the test results were unreliable and, therefore, inadmissible, the Court remarked: “While much of this kind of proof goes to the weight to be given to the test results, at some point best discerned by trial courts, indicia of unreliability quickly create an issue of admissibility.” Id. at 592, 521 A.2d at 1289.
In Brice v. State, 71 Md. App. 563, 576, 526 A.2d 647, 654 (1987), the Court of Special Appeals cited Casper and stated that the burden is on “the defendant to impeach the presumptive reliability of a test that satisfied the legislatively established requirements” because “test results produced by a qualified person using certified equipment in a timely manner are prima facie reliable.” (Cleaned up). The Court of Special Appeals reiterated that, in Casper, 70 Md. App. at 586, 521 A.2d at 1286, it had explained “that the burden was on the defendant to challenge reliability and [] that the challenge, in any event, would go only to weight and not to admissibility[.]” Brice, 71 Md. App. at 576-77, 526 A.2d at 654. In Brice, id. at 577, 526 A.2d at 654, the Court of Special Appeals held that the State did not bear the burden of negating speculation that medication given to the defendant in the case may have adversely affected the test result. In Brice, the Court of Special Appeals did not interpret Casper to stand for the proposition that challenges to the reliability of test results create an issue as to admissibility.
Given the holdings in Casper and Brice, we are unpersuaded by Dejarnette‘s reliance on Casper for the argument that noncompliance with the twenty-minute
We are unpersuaded by Dejarnette‘s argument that the breath test results were inadmissible under
In any event,
We are also not convinced that case law from other jurisdictions relied on by Dejarnette compels a contrary result where the Maryland statutes and regulation at issue are clear and unambiguous and no case requires suppression or non-admission of breath
One of the cases that Dejarnette cites for the proposition that courts have excluded breath test results where the State failed to establish compliance with an observation period is Reed v. Hill, 770 S.E.2d 501 (W. Va. 2015). In Reed, id. at 505, 508, the breath test results that were held to be properly excluded were those of a preliminary breath test, taken only eight minutes after a law enforcement officer‘s initial contact with the defendant and ten minutes before the defendant‘s arrest, thus not satisfying a fifteen-minute observation period prior to administration of a preliminary breath test as required by an applicable legislative rule. In discussing a secondary chemical breath test that occurred after the defendant was arrested and transported to the police station, the Supreme Court of Appeals of West Virginia observed that, “[t]o be admissible into evidence and give rise to a presumption of DUI, a secondary chemical test must be performed in accordance with methods and standards approved by the Bureau for Public Health[,]” and the Bureau had
In discussing the phrase “constant observation” used in the legislative rule, the Court stated:
[T]he circuit court has interpreted the legislative rule to require that a law enforcement officer may never divert his or her eyes from the person to be tested, even when the person is in close proximity to the officer. We disagree. The regulation does not limit the period of constant observation to “constant visual observation,” and a law enforcement officer can ensure that a person has nothing in his or her mouth without fixedly staring at the person for the entire twenty-minute period. In addition to visually observing, an officer who is in close proximity may rely on his other senses, including hearing and smell, to maintain a constant observation of the test subject.
Id. at 512 (referencing W. Va. Code St. R. § 64-10-7.2(a)). The Court explained:
Accordingly, we now hold that the requirement in West Virginia C.S.R. § 64-10-7.2(a) (2005) that a law enforcement officer shall keep the person being tested under constant observation for a period of twenty minutes before administering a secondary chemical breath test does not require uninterrupted visual monitoring. The observation may be accomplished by the officer‘s use of his or her visual, auditory, and olfactory senses. The manner in which the officer conducts the observation period must serve the purpose of ensuring that the person being tested has nothing in his or her mouth at the time of the test and has had no food, drink, or foreign matter in his or her mouth during the observation period. If the officer diverts his eyes from the person being observed, the officer must be in close enough proximity to be able to constantly detect with his other senses whether the person has food, drink, or foreign matter in his or her mouth.
Reed, 770 S.E.2d at 513 (footnote omitted). In Reed, id. at 514, although preliminary
Vanderpool v. Dir. of Revenue, 226 S.W.3d 108 (Mo. 2007) (en banc), is among the cases that Dejarnette cites for the proposition that courts have determined that compliance with an observation period goes to admissibility of breath test results, not weight.12 Dejarnette‘s description of the holding in Vanderpool—that the Supreme Court of Missouri held that a breath test is not admissible “where an officer failed to conduct fifteen minutes of continual observation and the driver presented some evidence of contamination“—is not quite accurate. Rather, in Vanderpool, id. at 110, the Court held that, under its case law, the trial court had erred in determining “that the blood alcohol test results were inadmissible solely because the trooper did not maintain an uninterrupted 15-minute observation while transporting [the driver] to the Sheriff‘s Department for administration of the test.” In other words, in Vanderpool, the Court did not hold that the
established the analytical framework for assessing claims that blood alcohol test results are inadmissible due to an alleged failure to abide by the 15-minute observation requirements. This Court held that a blood alcohol test is not rendered inadmissible when a driver establishes that the officer did not conduct an uninterrupted, 15-minute visual observation of the driver. In addition to the lack of continuous observation, the driver must also present some evidence that he or she smoked, vomited or orally ingested some other materials during the 15 minute period, or present evidence showing, by expert testimony or otherwise, that the driver did something or was subject to some factor other than smoke, oral intake of any material, or vomiting that affects the validity of the blood alcohol results. The lack of observation, without more, does not provide a basis to question the validity of the blood alcohol test results.
Id. (cleaned up). In addition, as the Court of Special Appeals observed in this case, the circumstance that “[t]here are other jurisdictions that require less than a twenty-minute observation period,” such as Missouri, suggests that “a shorter period of observation is sufficient for the purpose of administering a valid breath test.” Dejarnette, 251 Md. App. at 476, 254 A.3d at 529 (citations omitted).
In our view, that other jurisdictions have different statutory or regulatory requirements and that courts in those jurisdictions may address alleged noncompliance with an observation period differently does not compel the result that Dejarnette seeks in this case—that alleged noncompliance with the twenty-minute observation period set forth in
II.
The Parties’ Contentions
Dejarnette contends that the record in this case does not support a finding that Trooper Brown and Sergeant Todd complied with the twenty-minute observation period. Dejarnette argues that, to the extent that the circuit court made such a finding, the finding was clearly erroneous. Dejarnette asserts that the State bears the burden of establishing that officers sufficiently observed a driver for the duration of the observation period and that continuous observation for at least twenty minutes occurred. Dejarnette maintains that the observation period in this case was deficient because Trooper Brown spent time reading the Advice of Rights form and filling out paperwork, thus impeding his ability to observe, and because testimony did not establish that either officer continuously observed him for the entire twenty minutes. Dejarnette asserts that the argument that the circuit court failed to make a finding concerning compliance with the observation period is preserved for appellate review and reversal is warranted because the circuit court did not make such a finding.
The State responds that, evidence of the results of a breath test may not be excluded for lack of compliance with the twenty-minute observation period and even if that were the case, the Court of Special Appeals correctly determined that the record in this case showed compliance. The State contends that the purpose of the observation requirement, as demonstrated by the plain language of the regulation, is “to ensure that nothing enters the mouth by external means that could interfere with the test.” According to the State,
The State asserts that Dejarnette‘s argument that the circuit court failed to make an explicit factual finding of compliance is not preserved for appellate review and that this Court should decline to address the matter. The State maintains that Dejarnette failed to preserve the issue because he did not object on the ground that the circuit court‘s factual findings were not sufficient. The State contends that, even if the issue is preserved, the circuit court was not required to make explicit factual findings concerning compliance with the observation period.
Analysis
As an initial matter, we note that, because we hold that alleged noncompliance with the twenty-minute observation period goes to the weight of the evidence rather than to the admissibility of breath test results and Dejarnette has raised no meaningful allegation as to any irregularity having occurred during the observation period, we need not necessarily address whether the record in this case demonstrates that the officers complied with the observation period. Even so, we conclude that the record supports a finding that the officers complied with the twenty-minute observation period. And, we determine that the circuit court found on the record that the officers complied with the requirements of the applicable COMAR regulation.
The record in this case amply demonstrates that the officers complied with the twenty-minute observation period. Forty-four minutes elapsed between the time that Dejarnette was stopped at 1:59 a.m. and the time at which the first test result occurred at 2:43 a.m. Thirty-one minutes elapsed between the time that Dejarnette was arrested at 2:12
The evidence established that for the sixteen minutes between 2:21 a.m. and 2:37 a.m., Dejarnette was in Trooper Brown‘s presence at the barrack. During that time, Trooper Brown took Dejarnette to the processing room, which he described as a small room of approximately eight or ten feet by twelve or fourteen feet containing a desk and two chairs. When asked whether he was sure that Dejarnette did not have something in his mouth in the police car and the processing room, Trooper Brown testified: “All I could say was, he had his hands behind his back, and they were handcuffed” and Dejarnette‘s mouth
In short, the record supports a finding of compliance with the twenty-minute observation period. From the time of Dejarnette‘s arrest at 2:12 a.m.—and even before—until when the first breath sample was taken and the test result occurred at 2:43 a.m., Trooper Brown was in close proximity to Dejarnette and able to observe him. While he was in the police car, Dejarnette was in the front passenger seat, just a short distance from Trooper Brown, with his hands cuffed behind his back, making it almost impossible for him to eat, drink, smoke, or place a foreign substance in his mouth without that action being detected by Trooper Brown. While he was at the barrack, Dejarnette was a short distance from Trooper Brown in a small room, after having been searched twice and having any items in his possession removed from his pockets. Trooper Brown testified that Dejarnette did not have anything in his mouth while in the processing room and Sergeant Todd also testified that was the case when he was in the processing room with Dejarnette. The evidence in this case was more than sufficient to demonstrate compliance with the twenty-minute observation period.
[DEJARNETTE‘S COUNSEL:] It‘s fair to say during the time that you were reading that, you were not looking at me; correct?
[TROOPER BROWN:] That‘s correct.13
[DEJARNETTE‘S COUNSEL:] Okay.
THE COURT: But Sergeant Todd would have presumably been looking at me, if you were reading it to me?
[TROOPER BROWN:] Yes.
[DEJARNETTE‘S COUNSEL:] Was Sergeant Todd in the room the entire time?
[TROOPER BROWN:] I don‘t recall if he was in the room the entire time.
Dejarnette‘s counsel attempted to suggest that Sergeant Todd may not have been in the room when the form was read. To the extent that Trooper Brown understood the circuit court to be asking about where Sergeant Todd would have been looking if he were in the room, Trooper Brown responded that Sergeant Todd would have been looking at the person
Finally, like the Court of Special Appeals, we conclude that the circuit court found that the officers complied with the twenty-minute observation period required by
[W]hen you‘re arresting somebody, and you‘re putting them in the car, and you‘re driving, and you‘re taking them out of the car, and you search them again, and you are taking them down to the room, you know, presumably, they‘re in close proximity to you, they‘re not away from you, and you can observe whether they‘ve belched or vomited, the same as you can in a room. But, quite frankly, I think best practices is that, you‘re in a room with them, as the trooper said, from as close as you were today with your client, and you‘re able to be close enough to smell, to touch, if necessary, if you suspect there‘s something in their mouth, to see, all of your tactile senses are in such a close range, that you can make those observations.
The circuit court specifically determined that, between 2:21 a.m. and 2:43 a.m., “during the 22 minutes, we‘ve got two people, a combination of the two people[, i.e., Trooper
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS.
Notes
In other words, under the Maryland Rules, suppression or inadmissibility of evidence is not the required consequence for noncompliance with a rule.These rules shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. When a rule, by the word “shall” or otherwise, mandates or prohibits conduct, the consequences of noncompliance are those prescribed by these rules or by statute. If no consequences are prescribed, the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.
Insofar as the applicability ofExpert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine
- whether the witness is qualified as an expert by knowledge, skill, experience, training, or education,
- the appropriateness of the expert testimony on the particular subject, and
- whether a sufficient factual basis exists to support the expert testimony.