THROUGH THE STATE’S LOOKING GLASS

When I use a word, it means just what I choose it to mean — neither more not less” – Humpty Dumpty, Through the Looking Glass, Lewis Carroll (1872).Courts and Judicial Proceedings Article, §10-306(b)(1) states:

Test results . . . are admissible as substantive evidence without the presence or testimony of the technician who administered the test. However, if the State decides to offer the test results without the testimony of the technician it shall, at least 30 days before trial, notify the Defendant or his attorney in writing of its intention and deliver to the Defendant or his attorney a copy of the test results to be offered. (Emphasis added).

     Obviously, unless “the State” provides notification to the defendant or his attorney of its intention to introduce the test results into evidence without the presence of the breath technician, Courts and Judicial Proceedings Article, §10-306 states that the breath test results cannot be admitted into evidence without the live testimony of the chemical technician. But the issue is: who is “the State”? Is “the State” the Office of the State’s Attorney or the arresting officer who provides the notice to the defendant? This is important because the breath test results which contain language attempting to comply with this statute is frequently the only notification received by the Defendant or his attorney regarding the presence of the chemical technician. Of course, it is only after receipt of notice from “the State”, that the defense obligation is triggered to request the presence of the breath technician at trial to prevent the test results from being admitted without the technician’s presence.

     Of course, at the time of trial, the Assistant State’s Attorney will take the position that the arresting officer is “the State” for purposes of providing notice under this statutory section. And the breath test results does contain language stating:

The above named defendant is hereby notified that the results of the test for alcohol will be presented as evidence at the criminal trial without the presence or testimony of the technician or analyst who performed the test unless the defendant or defense attorney notifies the State’s Attorney and the court in writing no later than twenty (20) days before trial that the defendant desires the technician or analyst to be present in court.

     However, this “notice” is signed only by the arresting officer, the chemical technician and the defendant. There is no signature from anyone authorized or licensed to practice law. The defendant has received a piece of paper signed by two police officers declaring what witnesses will or will not be called at trial. Is this practice intended by Maryland law? (Interestingly enough, although the statute requires the “the State” to notify the defendant or his attorney, the breath test notice received from the police officer requires the defense to notify “the State’s Attorney”. If the State’s Attorney is “the State” for receiving notice from the defense, is it not “the State” for purposes of providing the initial notice to the defendant as well?)

     In attempting to define who is intended to be “the State” for purposes of this statute, Courts and Judicial Proceedings Article, §10-306 must be reviewed as part of a statutory scheme regarding breath test evidence and the appellate courts have made it clear that Sections 10-302 through 10-306 must be interpreted together to understand the meaning of the language contained therein.

Sections 10-302 - 306 of the Courts Article provide for the administration of a chemical test of breath or blood to determine its alcoholic content. These sections also establish certain conditions under which these tests must be performed.

Briscoe v. State

, 71 Md.App. 563, 526 A.2d 647 (1987).

     A review of the statutory scheme of which §10-306 is a part, makes it clear that the term “the State” is intended to mean “the State’s Attorney”. After all, the decision regarding which witnesses to call at a trial is a decision which must be made by an attorney in the exercise of his authority to practice law in the State of Maryland. Decisions regarding evidence to be produced at trial and witnesses to be called in court are discretionary legal decisions which constitute the essence of the practice of law.

     Indeed, the very language of Sections 10-302 through 10-306 of the Courts and Judicial Proceedings Article make it clear that “the State” is intended to mean the State acting through the Office of the State’s Attorney. Whenever any action is required of the police in this statutory scheme, the statute specifically refers to the police as “the police officer” or “the officer”. This is shown by the language contained in §10-304 of the Courts Article. Section 10-304(e) states:

The person tested is permitted to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer, and in the event no test is offered or requested by the police officer, the person may request and the officer shall have administered one of the chemical tests provided for in this section. [emphasis added.]

     Clearly, where police involvement is anticipated, the officer, who is a State’s witness, is referred to as “the police officer”. This argument is further buttressed by the language contained in §10-304(c)(1)(I):

The blood shall be obtained by a qualified medical person using equipment approved by the toxicologist under the Postmortem Examiners commission acting at the request of a police officer. [Emphasis added.]

     Section 10-306 does not indicate that the police officer may provide notice to the Defendant of the State’s intention not to call the technician as a witness. This section requires “the State” to “notify the Defendant or his attorney” of its intention. The most reasonable interpretation for the statutory requirement that the Defendant or his attorney be notified is that it is anticipated that the State’s Attorney’s Office will review the matter prior to trial and make an election as to whether or not to call the technician in a given case. Since most criminal defendants are represented by counsel, the statute provides for the Defendant’s attorney to be notified. Obviously, the Defendant is not able to retain counsel until he has been released by the police after his arrest.

     Section 10-306 contemplates that notice regarding whether or not evidence will be introduced without a particular witness will be provided from the Office of the State’s Attorney.

     Another indication as to the meaning of the term “the State” lies in the Maryland District Court Criminal Rules. For example, Rule 4-221(d) (Preliminary Hearing in District Court) states: “. . . The Court shall receive relevant evidence presented by the State and evidence may not be excluded on the ground that it was acquired by unlawful means.” It is obvious from the reading of this rule and other criminal rules, that the term “the State” contemplates action to be taken by the Office of the State’s Attorney on behalf of he State of Maryland. Section 10-306 of the Courts & Judicial Proceedings Article, like the Maryland Criminal Rules, govern the introduction of evidence and trial procedure. These are matters which lie within the discretion of the Office of the State’s Attorney. A police officer in a criminal case is a witness. A police officer is not a party in the proceedings nor is he a lawyer who has been licensed to practice law and make trial court evidentiary decisions.

     Therefore, since the police officer is not “the State” for purposes of Section 10-306, when the Office of the State’s Attorney fails to provide notice to the Defendant or his attorney, the State has failed to provide notice to the Defendant of its intention not to call the technician at the trial as a witness of this case in accordance with the mandate of §10-306 of the Courts and Judicial Proceedings Article. Accordingly, the defense obligation to provide notice to the State’s Attorney requesting the presence of the breath technician has not yet been triggered and the breath test should not come into evidence without the testimony of the breath technician.

     Left for another day is this question: When your client receives the breath tech notice from the arresting officer can you send your notice demanding the presence of the technician at trail to the arresting officer? If the officer is “the State” for purposes of giving notice, is he not also “the State” for purposes of receiving notice from the defense?

    Lastly, while this issue has been successfully ruled upon many times by District Court judges orally from the bench, there is a written opinion on this issue from former District Court Judge Theresa Nolan decided this issue in a written opinion in State v. Adwell, Case No. G622919-21, (1989). Judge Nolan held that the police officer is not “the State” for purposes of giving notice to the Defendant pursuant to Section 10-306 of the State’s intention whether to offer the chemical test results into evidence without the presence of the technician. A copy can be obtained from the author of this article.