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State v. Weisbrod10/12/2004
In dismissing two alcohol-related charges against a defendant, the trial judge vastly expanded the rights, statutory and constitutional, enjoyed by one charged with such offenses. On this appeal, we agree with the State that, at three separate levels of analysis, the dismissal was erroneous.
The Motion to Dismiss
The appellee, Timothy Weisbrod, was charged with five offenses: 1) driving under the influence of alcohol; 2) driving while impaired by alcohol; 3) driving on a suspended license; 4) failure to display a driver's license on demand; and 5) exceeding the speed limit. In the Circuit Court for Prince George's County, the appellee waived his right to trial by jury. Following a court trial on three of those five charges, he was found not guilty of driving on a suspended license, but guilty of both 1) failure to display a driver's license on demand and 2) exceeding the speed limit. This appeal does not concern any of those three verdicts.
Immediately prior to trial, however, the appellee moved to dismiss the two charges of 1) driving under the influence of alcohol and 2) driving while impaired by alcohol. The circuit *491 court granted the motion. The State appeals that dismissal. Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c)(1).
The appellee was arrested by the Maryland State Police at 2:48 A.M. on May 17, 2002, for driving at 65 miles per hour in a 50 mile per hour zone. He failed to present a driver's license when requested by the trooper to do so. He was also suspected of driving under the influence of alcohol. After being taken into custody, he was read the standardized DR-15 Advice of Rights. He refused to consent to a breath test for alcohol. According to the police, the appellee did not exhibit any difficulty in understanding the advice nor did he request an attorney.
**666 In arguing for a dismissal of the two alcohol-related charges, the appellee claimed that the troopers had failed to advise him of his alleged right, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 10-304(e), to have his own physician conduct a test on him for blood alcohol content.
The Trial Court's Ruling
The trial judge 1) accepted the defense argument that there was such a right, 2) concluded that due process of law demanded that the police affirmatively advise a suspect of such a right but that they failed to do so, and 3) determined that the appropriate sanction for such a due process violation was the dismissal of the charges.
Our appraisal of the dismissal will be made at three different levels of inquiry. Our ground level inquiry will be whether the appellee even possessed the statutory right to an independent test, with respect to which the police failed to inform him. Our second level of inquiry will assume, purely arguendo, the existence of such a right and then inquire whether, positing such a right, there is an affirmative obligation on the police, either statutory or constitutional, to inform a defendant about such a right. Our third level of inquiry will assume, again purely arguendo, both 1) the existence *492 of the right and 2) the affirmative obligation to inform, and then inquire whether, positing a failure to inform, the appropriate sanction should be the dismissal of the charges.
A. The Existence of the Right
The trial court, in rendering its opinion, essentially assumed the existence of such a right.
Defense Exhibit 3 is the advice of rights form pursuant to Transportation Article 16-205.1. It bears the signature of the defendant along with the officer, Trooper Tupper, Maryland State Police. There are several rights that are set forth in that exhibit which were presented to the defendant at the time in question.
Arguments have been presented relative to the defendant'
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