Defending Maryland DUI/DWI Cases Outline

DEFENDING MARYLAND DUI/DWI CASES OUTLINE
by Leonard R. Stamm
Goldstein & Stamm, P.A.
Capital Office Park
6301 Ivy Lane, Suite 504 – Greenbelt, Maryland 20770
301-345-0122 – (fax) 301-441-4652
lstamm@lstamm.com
www.lstamm.com
Copyright © 2007 – Leonard R. Stamm

1. ELEMENTS – TRANSPORTATION ARTICLE, § 21-902
   1. Driving
      1. Transportation Article, § 11-114
      2. Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993). “Accordingly, a person is in ‘actual physical control’ if the person is presently exercising or is imminently likely to exercise ‘restraining or directing influence’ over a motor vehicle while in an intoxicated condition.” If the person is totally passive and has not controlled the vehicle, criminal sanctions do not apply. The court should examine:
         1. “whether or not the vehicle’s engine is running, or the ignition on;
         2. where and in what position the person is found in the vehicle;
         3. whether the person is awake or asleep;
         4. where the vehicle’s ignition key is located;
         5. whether the vehicle’s headlights are on;
         6. whether the vehicle is located in the roadway or is legally parked.”
      3. Thomas v. State, 277 Md. 314, 353 A.2d 256 (1976)
      4. Gore v. State, 74 Md. App. 143, 536 A.2d 735 (1988)(officer felt engine to be warm – sufficient to show car had recently been driven)
      5. Rettig v. State, 334 Md. 419, 639 A.2d 670 (1994)
      6. Motor Vehicle Admin. v. Atterbeary, 368 Md. 480, 796 A.2d 75 (2002) held that a driver who was apparently awakened by a rescue squad, and who was then found by the police to be awake, behind the wheel, with the engine running, was capable of driving the car and therefore in actual physical control as used in the statutory definition of “to drive”.
   2. While under the influence of alcohol per se
      1. Transportation Article, § 21-902(a)(2)
         1. Transportation Article § 11-127.1 (“‘Under the influence per se’ means having an alcohol concentration at the time of testing of 0.08 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath”). Prior to October 1, 2001 this level was .10 and was called intoxicated per se.
         2. Brown v. State, 171 Md. App. 489, 910 A.2d 571 (2006)(.08 or higher test result creates a rebuttable presumption that the defendant was .08 or higher at the time of the offense).
   3. While under the influence of or impaired by alcohol (§ 21-902(a)(1); (b))
      1. Definition of driving while under the influence. (As of September 30, 2001). Legislation enacted in 2001 replaced the term “intoxicated” with the term “under the influence.” Since the legislature gave no definition, the definition for what was formerly called intoxicated remains applicable to under the influence.

         A person is intoxicated when a person’s mental and physical faculties are impaired to a substantial degree from the use of alcoholic beverages: that is, a person’s judgment and nervous system are affected from the use of alcohol to the extent that there is a substantial or significant impairment of coordination. [in relation to driving or operating a motor vehicle, a substantial or significant impairment of coordination exists when, as a result of the use of alcoholic beverages, a person lacks substantial capability to operate a vehicle in a manner that an ordinarily prudent and cautious person in full possession of his faculties, using reasonable care, would operate a vehicle under like conditions.

         Aronson, Maryland Criminal Jury Instructions and Commentary, Second Edition (Michie 1988).

      2. Definition of driving “while impaired by alcohol.”

         “Intoxication” and “impairment by alcohol” are two terms difficult to define with precision, yet not difficult to understand. Courts have been able to fashion interpretations of these terms. Instructive in this respect is the approach employed by an Oklahoma court in Synnott v. State where the appellant made an identical due process challenge. 515 p.2d 1154 (Okla.Cr.App.1973). The court, in upholding an analogous provision, held that the phrase “under the influence of intoxicating liquor” must be given its “commonly understood meaning which does not leave a person of ordinary intelligence in doubt.” Because the state is one of general knowledge, it must be given a sensible interpretation. Id. at 1157. Therefore, ascribing to the word “impaired” its common meaning, we believe it is generally viewed as a state less than intoxication where consumption of alcohol has affected one’s normal coordination.

         Brooks v. State , 41 Md.App. 123, 128, 395 A.2d 1224, 1227 (1979).

      3. Tereshuk v. State, 66 Md. App. 193, 503 A.2d 254 (1986)

   4. Of alcohol
      1. Odor of alcohol beverage on the defendant’s breath
      2. Open alcoholic beverages
      3. Blood or breath test
      4. Eyewitnesses
      5. Defendant’s statement
      6. Horizontal gaze nystagmus
   5. Impaired by drugs and alcohol (§ 21-902(c))
      1. Same as above
      2. Evidence of recent consumption of drugs
      3. Prescription
      4. Expert opinion
      5. Beckwith v. State, 78 Md.App. 358, 553 A.2d 259 (1989), reversed, 320 Md. 410, 578 A.2d 220 (1990)(§§ 21-902 (c) and (d) are not lesser included offenses of § 21-902(a)
         1. Section 21-902(c) also requires that the defendant be unable to drive safely as a result of the consumption of alcohol and drugs or drugs
      6. Cook v. State, 62 Md.App. 634, 490 A.2d 1311 (1985)(driving under the influence of CDS may be prosecuted under either § 21-902(c) or (d)
   6. Impaired by controlled dangerous substances (§ 21-902(d))
      1. Same as above
      2. Evidence of recent consumption of drugs
      3. Drug Recognition Expert (D.R.E.)
      4. Beckwith v. State, 78 Md.App. 358, 553 A.2d 259 (1989), reversed, 320 Md. 410, 578 A.2d 220 (1990)
      5. Cook v. State, 62 Md.App. 634, 490 A.2d 1311 (1985)
   7. DUI resulting in “life threatening injury”
      1. Todd v. State, 61 Md.App. 332, 868 A.2d 944 (2005) the Court of Special Appeals defined “life threatening injury” for purposes of what is now codified as Criminal Law Article § 3-211, drunk driving resulting in “life threatening injury.” The court rejected a vagueness challenge to the statute and instead defined “life threatening injury” as one that was “potentially fatal” or “very dangerous or serious with the possibility of death as an outcome.”
      
      
2. PRELIMINARY (PRE-TRIAL) MOTIONS
   1. Discovery
      1. Purposes of discovery
         1. Prepare for defense
         2. To determine whether statutory and regulatory requirements have been met
         3. To determine whether there is an indicia of unreliability
         4. For review by an expert witness
         5. To obtain sanctions
            1. Dismissal of the case
            2. Exclusion of evidence
            3. Order compelling discovery
            4. State continuance
      2. Object of discovery
         1. What do they have to do?
         2. Did they do it?
         3. Is is scientifically accurate and reliable and legally valid?
      3. Maryland Rule 4-262 – District Court
         1. Maryland Rule 4-301(b)(same rules apply in circuit court where the defendant prays a jury trial)
      4. Maryland Rule 4-263 – Circuit Court
         1. Cole v. State, 378 Md. 42, 835 A.2d 600 (2003)(defendant was entitled to discovery of testing laboratory’s standard operating procedures, including quality assurance manual, calibration record for gas chromatograph/mass spectrometer (GCMS) used by chemist to test the substance)
         2. Warrick v. State, 302 Md. 162, 486 A.2d 189 (1985)(State required to produce all evidence relevant to suppression without a request)
         3. Coleman v. State, 321 Md. 586 583 A.2d 1044 (1991)
         4. Jennings v. State, 303 Md. 72, 492 A.2d 295 (1985)
         5. Blake v. State, 15 Md. App. 674, 292 A.2d 780, cert. denied, 266 Md. 734 (1972)
         6. Brown v. State, 85 Md. App. 523, 584 A.2d 164 (1991)
         7. Bailey v. State, 303 Md. 650, 496 A.2d 665 (1985)
         8. Patrick v. State, 329 Md. 24, 617 A.2d 215 (1992)(State required to produce polygraph results of potential witnesses even though results unfavorable to defendant and results themselves are inadmissible)
      5. Maryland Rule 4-261 – depositions
      6. Maryland Rules 4-265, 4-266, 4-267 – subpoena for witness
         1. White v. State, 89 Md. App. 590, 598 A.2d 1208 (1991)(State’s toxicologist may not be subpoenaed by defendant as free defense expert)
         2. Md. Cts. & Jud. Proc., § 10-304(d)(toxicologist may be subpoenaed 30 days before trial, and state attorney may represent toxicologist on a motion to quash the subpoena)
      7. Maryland Rule 4-264 – subpoena for tangible evidence
      8. Brady discovery
         1. Brady v. Maryland, 363 U.S. 83 (1963)
         2. Giles v. Maryland, 386 U.S. 66 (1967)
         3. Giglio v. United States, 405 U.S. 150 (1971)
         4. Davis v. Alaska, 415 U.S 308 (1974)
         5. United States v. Bagley, 473 U.S. 667 (1985) (impeachment evidence is exculpatory evidence and must be provided to the defendant)
         6. Kyles v. Whitley, 514 U.S. 419 (1995); Ware v. State, 348 Md. 19, 702 A.2d 699 (1997) (government responsible to produce evidence in possession of the police)
      9. Casper discovery
         1. Casper v. State, 70 Md. App. 576, 521 A.2d 1281 (1987)
         2. Moon v. State, 300 Md. 354, 478 A.2d 695, cert. denied, 469 U.S. 1207 (1985)
      10. Jencks discovery
          1. Jencks v. U.S., 353 U.S. 657 (1957)
          2. Carr v. State, 284 Md. 455, 397 A.2d 606 (1979)
          3. Leonard v. State, 46 Md. App. 63, 421 A.2d 85 (1980), aff’d, 290 Md. 295, 429 A.2d 538 (1981)
          4. Martinez v. State, 309 Md. 124, 522 A.2d 950 (1987)
          5. Kanaras v. State, 54 Md. App. 568, 460 A.2d 61 (1983)
          6. Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990)
   2. Speedy trial – Sixth Amendment, United States Constitution; Article 21, Maryland Declaration of Rights
      1. Barker v. Wingo, 407 U.S. 514 (1972)
      2. Divver v. State, 356 Md. 379, 739 A.2d 71 (1999)(delay of one year and sixteen days from date of arrest to first trial date in routine DWI case violated state constitutional right to a speedy trial)
   3. Continuance
      1. Md. Rule 4-271(b)
   4. Double jeopardy
      1. Prior acquittal/conviction
         1. Cameron v.State, 102 Md.App. 600, 650 A.2d 1376 (1994)
         2. Gianiny v. State, 320 Md. 337, 577 A.2d 795 (1990)
         3. Scrimsher v. State, 325 Md. 88, 599 A.2d 444 (1991)
         4. Huff v. State, 325 Md. 55, 599 A.2d 428 (1991)
         5. Farrell v. State, 364 Md. 499, 774 A.2d 387 (2001)(court found defendant not guilty of speeding and negligent driving after witnesses failed to appear, common law of double jeopardy precluded re-prosecution, citing, Daff v. State, 317 Md. 678, 566 A.2d 120 (1989)).
         6. In re Michael W., 367 Md. 181, 786 A.2d 684 (2001)(payment of driving in violation of alcohol restriction citation did not preclude prosecution for driving while intoxicated in juvenile court).
      2. Res judicata
         1. Cook v. State, 281 Md. 665, 381 A.2d 671 (1978)
         2. Beatty v. State, 56 Md. App. 627, 468 A.2d 663 (1983)
         3. State v. Ferrell, 67 Md. App. 631, 508 A.2d 1023 (1986), aff’d, 313 Md. 291, 545 A.2d 653 (1988)
      3. Collateral estoppel
         1. Ashe v. Swenson, 397 U.S. 436 (1970)(application of collateral estoppel in criminal cases is required by the Double Jeopardy Clause)
         2. Janes v. State, 350 Md. 283, 711 A.2d 1319 (1998)(administrative finding in MVA hearing does not have collateral estoppel effect on court prosecution)
         3. Butler v. State, 91 Md. App. 515, 605 A.2d 186 (1992)
         4. Transp. Art., § 16-205.1(l)
   5. Charging document
      1. Failure to state an offense
         1. Ayre v. State, 291 Md. 255, 433 A.2d 1150 (1981)(all elements of offense must be included in charging document)
         2. Pedzich v. State, 33 Md. App. 620, 365 A.2d 567 (1976)(charging documents filed in the District Court must conform with constitutional requirements)
      2. Duplicity and Disjunctivity
         1. State v. Beers, 21 Md. App. 39, 318 A.2d 525 (1974) When a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment [or other charging document] for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute.
         2. Ayre v. State, 21 Md. App. 61, 318 A.2d 528 (1974)
         3. Thompson v. State, 26 Md. App. 442, 338 A.2d 411 (1975)
         4. Crampton v. State, 71 Md. App. 375, 525 A.2d 1087 (1987), aff’d, 314 Md. 265, 550 A.2d 693 (1988)
         5. Beckwith v. State, 320 Md. 410, 578 A.2d 220 (1990), rev’g in part, 78 Md. App. 358, 553 A.2d 259 (1989)(charge of 21-902(a) does not allege 21-902(b))
         6. Morrissey v. State, 9 Md. App. 470, 265 A.2d 585 (1970)(when duplicitous charge includes separate offenses State must prove both)
      3. Venue
         1. Courts and Judicial Proceedings Article, § 4-201
         2. Acton v. State, 80 Md. 547, 31 A. 513 (1895)(venue must be alleged in charging document)
         3. McBurney v. State, 280 Md. 21, 371 A.2d 129 (1977)(allegation of venue may not be amended over the objection of the defendant)
      4. Charging using a § 21-902 “general” citation under § 26-405
         1. By charging § 21-902 “general” citation under § 26-405 the defendant may be found guilty of any lesser included offense
         2. Driving while intoxicated per se under § 21-902(a)(2) is not a lesser included offense of driving while intoxicated under § 21-902(a)(1). Meanor v. State, 364 Md. 511, 774 A.2d 394 (2001) .
   6. Statute of limitations
      1. Md. Cts. & Jud. Proc., § 5-106
         1. Massey v. State, 320 Md. 605, 579 A.2d 265 (1990)
   7. Service of process
      1. Maryland Rule 4-212(h)
      2. State v. Preissman, 22 Md. App. 454, 323 A.2d 637 (1974)(a District Court commissioner is a judicial officer and may not serve process in a criminal case)
      3. Darrikhuma v. State, 81 Md. App. 560, 568 A.2d 1150 (1990)(where traffic citation was issued by the proper person, the police officer, but served by the commissioner, denial of a motion to dismiss could be considered harmless error)
   8. Right to a jury trial
      1. District Court
         1. The defendant may pray a jury trial from the District Court for any offense that permits imprisonment in excess of 90 days. Md. Cts. & Jud. Proc., § 4-302(e)(2).
         2. Fisher v. State, 305 Md. 357, 506 A.2d 626 (1986)(driving while intoxicated, which carries a year imprisonment carries the right to a jury trial; driving while under the influence of alcohol with a 60 day maximum penalty does not)
      2. Circuit Court
         1. Kleberg v. State, 318 Md. 411, 568 A.2d 1123 (1990)(by statute, in the circuit court, the defendant may elect a jury trial for any incarcerable offense)
3. STATE’S DIRECT EXAMINATION
   1. Arresting officer
      1. Evidentiary objections
         1. Relevance
         2. Hearsay
         3. Narrative
         4. Leading
         5. Calls for a conclusion
         6. Compound question
         7. Not responsive
         8. Reading the testimony – not proper refreshment of recollection (officer may be just reading report)
         9. Argumentative
         10. Assumes facts not in evidence
         11. Question is vague or ambiguous
         12. Answer is vague or ambiguous
         13. No personal knowledge
         14. Asked and answered
         15. Authentication
         16. Not the best evidence
         17. Calls for speculation
         18. Violation of federal/state constitutional rights (4th, 5th, 6th amendments)
         19. Statutory or rule violation
         20. Fruit of the poisonous leading question
         21. Lack of an adequate foundation
      2. Discovery (District court)
         1. Rule 4-262(a)(2)
            1. The State must furnish exculpatory evidence
            2. Statements of defendant to a State agent
            3. Expert opinions
         2. Court-ordered
      3. Suppress stop/search/arrest
         1. Fourth Amendment
            1. Stop
               1. Goode v. State, 41 Md.App. 623, 398 A.2d 801 (1979)(articulable reasonable suspicion that crime has been, is, or is about to be committed).
               2. Speeding – Fitzwater v. State, 57 Md.App. 274, 469 A.2d 909 (1984)
               3. Brie f weave over a line – Rowe v. State, 363 Md. 424, 769 A.2d 879 (2001)(brief momentary drift and hits rumble strip); but see, Edwards v. State, 143 Md.App. 155, 792 A.2d 1197 (2002)(vehicle crosses center line a number of times); Dowdy v. State, 144 Md.App. 325, 798 A.2d 1 (2002)(vehicle partially in left lane 2 times for 1/10 mile)
               4. Stop permitted even though officer did not see defendant drive, Bryant v. State, 142 Md.App. 604, 791 A.2d 161 (2002).
            2. Continued detention – Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999); Blasi v. State, 167 Md. App. 483, 893 A.2d 1152 (2006), cert. denied, 900 A.2d 751 (2006).
            3. Field tests
            4. Arrest – Berkemer v. McCarty, 468 U.S. 420 (1984)(Miranda is required once a reasonable person would believe they are no longer free to leave)
            5. Intoximeter
            6. Roadblocks – Little v. State, 300 Md. 485, 479 A.2d 903 (1984); Michigan State Dept. of Police v. Sitz, 110 S.Ct. 2481 (1990)(three part balancing – the State’s interest, the effectiveness of the roadblock in accomplishing the State’s interest, and the level of intrusion in the particular roadblock)
            7. Entry into the home – Welsh v. Wisconsin, 466 U.S. 740 (1984)(police may not enter the home to arrest for a misdemeanor without a warrant); Smith v. State, 72 Md. App. 450, 531 A.2d 302 (1987)(answering a police knock at the door does not waive the right of privacy recognized in Welsh)
         2. Officer’s jurisdiction
            1. Boston v. Baltimore County Police Department, 357 Md. 393, 744 A.2d 1062 (2000)(police may not enforce traffic laws outside of their own jurisdiction as a result of Article 27, § 594B(1)) (now Crim. Pro. Art. § 2-102)
            2. Seip v. State, 153 Md.App. 83, 835 A.2d 187 (2003)(exception to Boston is where officer is in hot pursuit out of his own jurisdiction)(hot pursuit not abrogated by Md.Code Ann., Crim. Pro. Art., §§ 2-102(b)(2), (e)(1), 2-301)
            3. Stevenson v. State, 287 Md. 504, 413 A.2d 1340 (1980)(where officer acts out of his jurisdiction under color of law, the Fourth Amendment may apply)
            4. United States v. Atwell, 470 F. Supp. 2d 554 (D. Md. 2007)(thorough discussion of extraterritorial arrests)
            5. Local police
            6. MNCPPC (Maryland National Capitol Park and Planning Police)
               1. Md. Code Ann., Crim. Pro. Art., § 2-105
               2. Memorandum of Understanding
            7. United States Park Police
               1. Federal property – United States v. Dreos, 156 F. Supp. 200 (1957)
            8. University of Maryland Police
               1. Md. Code Ann., Educ. Art., §13-601
               2. Memorandum of Understanding
      4. Standardized field sobriety tests
         1. Crampton v. State (field sobriety tests are not “scientific” tests requiring consensus of reliability in the relevant scientific community)
         2. NHTSA Guidelines
         3. Frye v. United States, 293 F. 1013 (1923)(once a new scientific technique has gained general acceptance within the relevant scientific field test results may be admitted in evidence)
         4. Reed v. State, 283 Md. 374, 391 A.2d 364 (1978)(adopting Frye general acceptance test in Maryland)
         5. Horizontal gaze nystagmus
            1. Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995)(State must show officer properly trained, test administered properly, and only allowed to show the defendant had consumed alcohol)
            2. Wilson v. State, 124 Md.App. 543, 723 A.2d 494 (1999) (HGN testing may not be used to establish a specific blood alcohol level)
         6. United States v. Horn, 185 F.Supp.2d 530 (D.Md 2002). Federal Magistrate Paul Grimm analyzed the admissibility of the standardized field sobriety tests in federal court under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Judge Grimm concluded, among other things that the standardized field sobriety tests may be used as circumstantial evidence of impairment, and for probable cause. However, the Government may not use them as “tests” that may be passed” or “failed” and the officer may not offer an opinion that includes reliance on “clues.”

            If offered as circumstantial evidence of alcohol intoxication or impairment, the probative value of the SFSTs derives from their basic nature as observations of human behavior, which is not scientific, technical or specialized knowledge. To interject into this essentially descriptive process technical terminology regarding the number of “standardized clues” that should be looked for or opinions of the officer that the subject “failed” the “test,” especially when such testimony cannot be shown to have resulted from reliable methodology, unfairly cloaks it with unearned credibility. Any probative value these terms may have is substantially outweighed by the danger of unfair prejudice resulting from words that imply reliability. I therefore hold that when testifying about the SFSTs a police officer must be limited to describing the procedure administered and the observations of how the defendant performed it, without resort to terms such as “test,” “standardized clues,” “pass” or “fail,” unless the government first has established a foundation that satisfies Rule 702 and the Daubert/Kumho Tire factors regarding the reliability and validity of the scientific or technical underpinnings of the NHTSA assertions that there are a stated number of clues that support an opinion that the suspect has “failed” the test.
            This is not to say that a police officer may not express an opinion as a lay witness that the defendant was intoxicated or impaired, if otherwise admissible under Rule 701. As recently amended, Rule 701 permits lay opinion testimony if: (a) rationally based upon the perception of the witness, (b) helpful to the fact finder and (c) if the opinion does not involve scientific, technical or specialized information.
            * * *
            In DWI/DUI cases, however, the third requirement of Rule 701, that the lay opinion is “not based on scientific, technical, or other specialized knowledge,” will take on great importance. A police officer certainly may testify about his or her observations of a defendant’s appearance, coordination, mood, ability to follow instructions, balance, the presence of the smell of an alcoholic beverage, as well as the presence of exaggerated HGN, and the observations of the defendant’s performance of the SFSTs__consistent with the limitations discussed above. The officer should not, however, be permitted to interject technical or specialized comments to embellish the opinion based on any special train ing or experience he or she has in investigating DWI/DUI cases. Just where the line should be drawn must be left to the discretion of the trial judge, but the officer’s testimony under Rule 701 must not be allowed to creep from that of a layperson to that of an expert__and the line of demarcation is crossed if the opinion ceases to be based on observation and becomes one founded on scientific, specialized or technological knowledge.

            Significantly, Judge Grimm in his opinion also summarized the testimony of the expert witnesses who testified and/or supplied affidavits supporting his conclusions. Dr. Spurgeon Cole’s testimony was summarized as follows:

            In his testimony and published writings, Dr. Cole was highly critical of the reliability of the SFSTs if used to prove the precise level of a suspect’s alcohol intoxication or impairment. His 1994 article “Field Sobriety Tests: Are They Designed for Failure?,” published in the journal Perceptual and Motor Skills, analyzed the 1977 Report, the 1981 Final Report, and the 1983 Field Evaluation report published by NHTSA regarding the SFSTs. (Def’s.Memo, Ex. C.).

            Dr. Cole observed the following:

            (1) 47% of the subjects tested in the 1977 NHTSA laboratory study who would have been arrested by the testing officers for driving while intoxicated (BAC of 0.10 or greater) actually had BACs below 0.10;

            (2) in the 1981 Final Report, 32% of the participants in the lab study were incorrectly judged by the testing officers as having BACs of 0.10 or greater; and

            (3) the accepted reliability coefficient for standardized clinical tests is . 85 or higher, yet the reliability coefficients for the SFSTs, as reported in the NHTSA studies, ranged from .61 to .72 for the individual tests and .77 for individuals that were tested on two different occasions while dosed to the exact same BAC. More alarmingly, inter-rater reliability rates (where different officers score each subject) ranged from .34 to .60, with an over-all rate of . 57.

            Id. at 100.

            Dr. Cole theorized that the SFSTs, particularly the WAT and OLS tests, required subjects to perform unfamiliar, unpracticed motions and noted that a very few miscues result in a conclusion that the subject failed and had a BAC in excess of 0.10. Id. His hypothesis was that individuals could be classified as intoxicated/impaired as a result of unfamiliarity with the test, rather than actual BAC. Id. He tested this hypothesis by videotaping twenty_ one completely sober individuals performing either “normal-abilities tests” (such as reciting their addresses or phone numbers or walking in a normal manner) or the WAT and OLS tests. Id. at 99_102. The results of the study were that 46% of the officers that viewed the videotape of the sober individuals performing the SFSTs rated the subjects as having had too much to drink, as compared to only 15% reaching this decision after seeing the videotape of the subjects performing the normal-abilities tests. Id. at 102. Dr. Cole concluded:

            [The SFSTs] must be held to the same standards the scientific community would expect of any reliable and valid test of behavior. This study brings the validity of field sobriety tests into question. If law enforcement officials and the courts wish to continue to use field sobriety tests as evidence of driving impairment, then further study needs to be conducted addressing the direct relationship of performance on these and other tests with driving. To date, research has concentrated on the relationship between test performance and BAC and officers’ perception of impairment. This study indicates that these perceptions may be faulty.

            Id. at 103.

            During his testimony at the Rule 104(a) hearing, Dr. Cole repeated his criticism of the reliability of the 1977, 1981 and 1983 studies but also testified about the Colorado, Florida and San Diego studies performed by Dr. Burns, styled as “field validation studies .” This testimony echoed Dr. Cole’s written criticisms about the SFSTs’ reliability as precise predictors of the level of alcohol intoxication and the SFST’s validity as a measure of driver impairment in his 1994 article, co-authored with Ronald H. Nowaczyk, titled “Separating Myth from Fact: A Review of Research on the Field Sobriety Tests” and published in the Champion journal of the South Carolina Bar Association. Def’s. Reply Memo, Exh. 1.

            Dr. Cole’s primary criticisms, as discussed in his 1994 article, include, first, that the 1981 Final Report published by NHTSA claims an 80% accuracy rate for users of the SFSTs. This is misleading because when the actual data is examined with respect to the success rate of using the SFSTs to differentiate between drivers with BACs above 0.10 and those without, the critical population, the officers had “a 50/50 chance of being correct just on the basis of guessing.” Id. at 539.

            Second, the SFSTs have a combined test-retest reliability rates of .77, while the scientific community “expects reliability coefficients to be in the upper . 80s or .90 for a test to be scientifically reliable.” Id. at 540. When different officers tested the same subjects at the same BAC dose level on different days the reliability was only .59 – a 41% error rate. Dr. Cole contrasted these substandard reliability coefficients with that of the BAC machine, which is .96 or 96% reliable. Id. at 540-41.

            Third, Dr. Cole argued that in order for the SFSTs to be valid predictors of BAC they must “not only identify individuals above a BAC level of 0.10 as ‘failing’, but also identify individuals below .10 as ‘passing’.” Id. at 541. The data from the NHTSA 1977 Report, however, shows that the validity of the HGN, OLS and WAT SFSTs was “.67, .48, and .55, respectively, with a combined validity coefficient of .67.” Id. This means that use of the SFSTs results in an unacceptably high erroneous arrest rate, if the tests are used by the officer to make arrest decisions based on BAC levels being in excess of . 10.

            Fourth, Dr. Cole was particularly critical of claims that the NHTSA SFSTs have been “validated” in a “field setting.” In this regard, he stated that the 1977 and 1981 NHTSA studies were done in a laboratory setting, and the difference in conditions in a controlled lab are dramatically dissimilar from field conditions that can be expected when officers employ SFSTs at all times of day and night in widely disparate weather and traffic conditions and where issues of officer safety may influence how the test is performed. [FN20] Id. at 542. Dr. Cole stated that the NHTSA 1983 Field Evaluation purported to be a field validation study, but it failed to meet the recommendations of the authors of the NHTSA 1981 Final Report that the SFSTs be validated in the field for eighteen months in locations across the country. Id. Dr. Cole also stated that Dr. Burns herself has testified that the SFSTs adequately have not been field tested [FN21] Id.

            Finally, Dr. Cole disputed the claims of proponents of the SFSTs that the studies regarding them have been published in peer review journals. The 1977 and 1981 field studies were published in technical reports by NHTSA, but those reports excluded the “methods and results” sections because they were thought to be too lengthy. Id. at 543. Cole concluded “[i]t is difficult to see how the NHTSA could claim that the FST is accepted in the scientific community, when results of studies on the validation of the FST have never appeared in a scientific peer reviewed journal, which is a basic requirement for acceptance by the scientific community.” Id . Cole concluded:

            Because of its widespread use, the FST battery has been assumed to be a reliable and valid predictor of driving impairment. NHTSA has done little to dispel that assumption. Law enforcement cannot be blamed for its use of the FST battery. Training documents refer to NHTSA reports and provide what appears to be supporting evidence for the validity of the FST battery. In addition, there is little doubt that individuals who have high BAC levels will have difficulty in performing the FST battery. However, what the law enforcement community and the courts fail to realize is that the FST battery may mislead the officer on the road to incorrectly judge individuals who are not impaired. The FST battery to be valid must discriminate accurately between the impaired and non-impaired driver. NHTSA’s own research on that issue … has not been subjected to peer review by the scientific community. In addition, a careful reading of the reports themselves provides support for the inadequacy of the FST battery. The reports include low reliability estimates for the tests, false arrest rates between 32 and 46.5 percent, and a field test of the FST that was flawed because the officers in many cases had breathalyzer results at the time of the arrest. NHTSA clearly ignored the printed recommendations of its own researchers in conducting that field study.

            Id. at 546. (Emphasis in original).

         7. State v. Homan, 732 N.E.2d 952 (Oh. 2000)(standardized field sobriety tests inadmissible for probable cause unless conducted in strict compliance with NHTSA guidelines)(the Ohio legislature has since modified this rule)
         8. Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005) (“Expert opinion testimony” is testimony that is based on specialized knowledge, skill, experience, training, or education)
      5. Suppress statement
         1. Miranda v. Arizona, 384 U.S. 436 (1966)
            1. Berkemer v. McCarty, 468 U.S. 420 (1984)(arrest occurs when reasonable person would not believe he is free to leave)
            2. Pennsylvania v. Muniz, 496 U.S. 582 (1990)(asking suspect date of six birthday was testimonial and required Miranda warnings, rest of videotaped interview held admissible without Miranda)
            3. Pennsylvania v. Bruder, 488 U.S. 9 (1988)(whether recitation of alphabet is testimonial so as to require Miranda warnings not decided)
         2. Voluntariness
            1. Mincey v. Arizona, 437 U.S. 385 (1978)
         3. Corroboration of corpus delicti
            1. Hadder v. State, 238 Md. 341, 209 A.2d 70 (1965)
      6. Refusal
         1. In 2001, the legislature amended Cts. & Jud. Proc. Art., § 10-309 to allow evidence of the refusal in evidence, (in effect overruling Krauss v. State, 322 Md. 376, 587 A.2d 1102 (1991)(so long as the defendant is not claiming the police improperly caused a refusal to submit to a blood or breath test for alcohol the State may not introduce the refusal in evidence). A Fifth Amendment challenge to the admissibility of the refusal in light of this legislation was rejected by the Court of Special Appeals in Wyatt v. State, 149 Md.App. 554, 817 A.2d 901 (2003). Wyatt relied heavily on the Supreme Court decision in South Dakota v. Neville, 459 U.S. 553 (1983).
         2. As of September 30, 2005, if the state provides notice 15 days prior to trial in Circuit Court and 5 days prior to trial in District Court, knowing refusal, found beyond a reasonable doubt by the fact finder, subjects the defendant to a sentencing enhancement of 2 months and $500.
      7. Independent test
         1. State v. Weisbrod, 159 Md.App. 488, 859 A.2d 664 (2004), cert. den., 384 Md. 582, 865 A.2d 589 (2005)(police do not have to advise defendant who refuses the State’s breath test of the right to an independent medical test under Cts. & Jud. Proc. Art., § 10-304(f))(but an early draft of the opinion suggests police might have to advise defendants who do submit to the test of the right).
      8. Opinion of officer
         1. Warren v. State, 164 Md. App. 153, 882 A.2d 934 (2005) (officers may give lay opinion that defendant was “driving under the influence of alcohol,” “drunk,” and “highly impaired by alcohol”); but see, Ragland v. State , 385 Md. 706, 870 A.2d 609 (2005)(officers relying on specialized training, knowledge, or experience must be qualified as experts to give opinions)
   2. Intoximeter or blood test technician
      1. Transportation Article, §§ 16-205.1, 16-205.2
         1. State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981)(Courts & Judicial Proceedings Art., §§ 10-302-309 and Transp. Art., § 16-205.1 are in pari materia and should be construed harmoniously)
      2. Courts and Judicial Proceedings Article, §§ 10-302-1 0-309
         1. Willis v. State, 302 Md. 363, 488 A.2d 171 (1985)(“apprehension” occurs when a defendant, not in custody, is offered the blood test)
         2. Brice v. State, 71 Md. App. 563, 526 A.2d 647 (1987)
         3. Hasselhoff v. State, 67 Md. App. 645, 508 A.2d 1030 (1986)
         4. Hyle v. Motor Veh. Admin., 348 Md. 143, 702 A.2d 760 (1997)(a blood test may be required if the test equipment for a breath test is unavailable, however, if the operator is unavailable, the State is not excused from obtaining a breath test, and the driver will not have his license suspended for refusing a blood test)
      3. Regulations of the Toxicologist, Post Mortem Examiners Commission, State of Maryland, Regarding Tests of Breath and Blood for Alcohol, adopted September 30, 2001 and amendments
      4. Right to counsel
         1. Sites v. State, 300 Md. 702, 481 A.2d 192 (1984)(a detainee has a due process right to telephonically consult with counsel on request to decide whether to submit to the breath test so long as the consultation does not interfere with the State’s effort to timely and efficaciously obtain the breath test result)
         2. Brosan v. Cochran, 307 Md. 662, 516 A.2d 970 (1986)(the due process right recognized in Sites includes the right to an in-person consultation in the jail and the attorney may administer a private portable breath test)
         3. McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989)(the right recognized by Sites depends upon a request and the police need not give advice of Sites to detainees.
         4. MVA v. Atterbeary, 368 Md. 480, 796 A.2d 75 (2002)
            1. determination of whether counsel was denied is decided on a case by case basis
            2. consent to take test need not be in writing
            3. requesting to talk to attorney, although did not have name of attorney was not a refusal
            4. opportunity to consult counsel must be reasonable, considering all the facts and circumstances
      5. Hospital blood test
         1. Moon v. State, 300 Md. 354, 478 A.2d 695 (1984)(since the statutory inferences do not apply, a hospital test must be interpreted by an expert to be relevant to the trier of fact)
         2. Garlick v. State, 313 Md. 209, 545 A.2d 27 (1988)(the State may introduce a hospital test if it is “pathologically germaine” to treatment)
         3. Bryant v. State, 361 Md. 420, 761 A.2d 925 (2000)(hospital record that does not comply with Maryland Rule 5-902 should not have been admitted in evidence)
      6. Voir dire the witness