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Police not required to give blood test for intoxication if Breathalyzer fails

A woman arrested for drunk driving and given a Breathalyzer test that failed to give a consistent reading was permitted to argue at trial that a blood test would have shown she wasn’t drunk — but she wasn’t entitled to a jury instruction from the judge, a divided Court of Appeals held yesterday.Nor did the state have a mandatory duty to provide a blood test after her alleged request for one, the opinion said, citing case law that held a chemical test is not required for prosecuting an alcohol-related offense.The majority, citing Maryland case law, affirmed the trial judge’s ruling not to include the inference in his instructions to the jury because it would create “the danger that the jury may give the inference undue weight.”“Generally, [the state] is not required to generate or find evidence favorable to a defendant,” the per curiam opinion said. “The position taken by the petitioner, that the State either conduct a blood test or that the Court instruct the jury that the failure of the State to conduct a blood test leads to an inference that it would be exculpatory, in effect, would impose a burden on the State to generate or find exculpatory evidence.“We have not yet placed such a burden on the State under conditions similar to those here present and are unwilling to do so under these circumstances,” the opinion continued.Judge Dale R. Cathell agreed with the majority in a concurring opinion.Chief Judge Robert M. Bell disagreed, noting in his dissent that when the Breathalyzer doesn’t produce a percentage result of alcohol concentration, “it is not working properly.”“In my view, the evidence in this case supports the petitioner’s theory of the case — the breathalyser [sic] machine was inoperable and thus unavailable, giving rise to her right to a blood test,” Bell wrote. “The court should have, at the petitioner’s request, so instructed the jury,” Bell added. “The failure to do so, even though allowing the petitioner to argue the matter, is tantamount to affording her no remedy at all, and may go so far as to penalize the petitioner for events beyond her control.”Wine, cheese and a stopMariellen Lowry, who testified she drank “two glasses of Chardonnay” at a wine and cheese reception after work in September 1998, was driving home late that evening when she was pulled over by a police officer in Howard County. The officer had observed her car “swerve” over the right-side lane marker by half a car-width.After flunking three field sobriety tests, Lowry was arrested and taken to the Howard County Southern District Police Station. After she was advised of her rights, Lowry elected to take a Breathalyzer test.The first of two required tests indicated a reading of 0.173 percent — which would indicate alcohol intoxication — but subsequent samples read “insufficient breath” and “interfering substance.”Lowry claimed she requested a blood test to prove she wasn’t drunk. Two officers testified they “did not recall” the request, the opinion noted.Lowry was convicted of driving under the influence of alcohol and other charges in district court and appealed to the Circuit Court for Howard County. At her trial last March, Lowry argued she should be allowed an inference that if the blood test had been given, it would have been favorable to her. Her lawyer also argued that the inference should be included as a jury instruction. The trial judge denied the request, but allowed the defense counsel to argue the inference during closing arguments. Lowry was convicted, sentenced to 60 days confinement (suspended), two years of unsupervised probation, a fine of $350 for the DUI and $30 for failing to display her car’s registration card. Yesterday’s opinion affirmed.Lowry’s attorney on appeal, Gill Cochran, said he was “disappointed” by the opinion.“The legislature and the court have allied themselves with the police,” Cochran said. “It’s difficult to have a level playing field with DWI’s. We didn’t in this case.”<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

Case: Mariellen Lowry v. State, CA No. 36, Sept. Term 2000. Reported. Per curiam opinion. Concurring opinion by Cathell, J. Dissenting opinion by Bell, C.J. Filed Mar. 12, 2001. Issue: In a drunk-driving case, when a Breathalyzer test does not produce a percentage reading for alcohol concentration, what is the appropriate remedy? Holding: Generally, the state is not required to generate or find evidence favorable to a defendant. Under the circumstances here present, the appropriate remedy would be to allow defense counsel to argue inference that had a blood test been subsequently administered, its results would have been favorable to Lowry. Counsel: Gill Cochran for petitioner; Asst. AG Celia A. Davis for respondent. RecordFax: #1-0312-20 (40 pages