Important Maryland Cases: State v. Werkheiser, 299 Md. 529 (1984)

The Court of Appeals of Maryland decided in State v. Werkheiser, 299 Md. 529 (1984), that the failure by the police to administer an alcohol test properly as mandated by statute in a drunk driving case did not mandate the dismissal of the charges, but did justify to the motorist a favorable inference about what the results would have been.

In Werkheiser, the office responding to a one-car accident did not direct a qualified medical person to administer to the unconscious driver/defendant a blood alcohol test as required by Maryland statute.  At trial in Queen Anne’s County, the presiding judge dismissed the charges, holding that the State had denied the defendant due process by violating its own mandatory requirements.  On appeal to the Court of Special Appeals, the Court of Appeals (Maryland’s highest court, for visitors to this site from out-of-state) intervened and took the case.

The Court noted that the mandatory language of the blood alcohol test statute did not provide a remedy in the event of a breach of the statute, and looked to the intent and purpose of the statute overall in determining a remedy.  The Court noted that the purpose of the statute was to facilitate the prosecution of drunk driving charges and the protection of the public, and that no provision of the law made administering the test a prerequisite of any prosecution.  It noted further that the General Assembly provided for the exclusion from evidence at a drunk driving trial of a refusal to take a breath test and of the results of a preliminary breath test (PBT) administered in the field, drawing from those provisions that had the General Assembly wanted to preclude prosecutions when a blood alcohol test was not administered properly, it could have done so and did in fact make similar provisions in other areas of criminal law.

The Court cited with approval a Colorado case that noted that “the State must not suppress evidence, but it need not gather evidence for the accused.”  The Court indicated that the best remedy was a favorable inference to the defendant regarding what the result of the test might have been had it been administered properly, to be weighed with all other evidence including the intention of the law enforcement officer who failed to administer the test.  The Court noted that other provisions of the law did not bar the introduction of other evidence when a alcohol test result was introduced, and that it was logical not to bar other evidence when such a test was not introduced.  Reversing the dismissal. the Court of Appeals remanded the matter for trial back to the Queen Anne’s County Circuit Court.

This case has practical applications for the more common DUI alcohol breath test.  If an officer fails to offer a breath test, or induces a motorist per State v. Forman into refusing the test through a deviation from the DR-15 Advice of Rights “script”, Werkheiser may allow a favorable inference.  There is no constitutional right of a defendant to a breath test or a breath test result.  Werkheiser should be read in harmony with State v. Forman (inducement by an officer deviation from the DR-15 “script” may result in a “no action” at a license suspension hearing) and Brosan v. Cochran (defendant has a right to counsel, though not a right to be notified of that right, before deciding to take or not to take the breath test.)  Case notes on these two cases will appear later in this Important Maryland Cases series on this blog.

Posted by Bruce Godfrey

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