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Krauss v. Maryland4/1/1991
ehension exists in the mind of the average juror today concerning chemical tests for intoxication, I would suggest it is the mistaken belief that a suspect has no right to refuse the test. Thus, it is reasonable to assume that jurors are apt to speculate about the absence of chemical test results when a defendant is charged with driving while intoxicated or under the influence of alcohol.
Ordinarily, when a court seeks to determine whether a rational basis exists to support a legislative action, the court will consider all of the possible facts that the legislature might reasonably have found to exist, without the necessity of finding that the legislature actually considered those facts. Here, however, we know that the legislature considered at least one basis upon which I suggest it ultimately may have acted. In the Summary of Committee Report prepared for the Senate Judicial Proceedings Committee for Senate Bill 85, by which this amendment was accomplished, the following statement appears:
The Maryland Department of Public Safety and Correctional Services points out that during jury trials for alcohol-related offenses, when the State fails to introduce the results of a chemical test, members of the jury feel that the State is withholding the results because they were too low. This bill would end that perception. Senate
Bill 85 would improve the enforcement of Maryland's transportation laws.
Equally likely, I suggest, is the possibility that jurors faced with the unexplained absence of test results will conclude that the police improperly refused to offer a test to the accused.
The majority opines that "the Legislature recognized that . . . the refusal [to take the chemical test] was not material or relevant to the issue of guilt or innocence." Majority opinion at 386. Again, I disagree. The Supreme Court recognized, in South Dakota v. Neville, that the refusal to submit to a chemical test is a fact having evidentiary value that may be used against a defendant. I think it is clear that a defendant's refusal to take a chemical test may give rise to an inference of consciousness of guilt, which may properly be used against the defendant. I think it is also clear that the legislature understood this, but simply made the decision to prohibit the State from using an otherwise admissible inference.
At the same time, however, the legislature did not wish to confer a further benefit on the defendant who refused a test by having the jury draw an unwarranted inference that the State was withholding important evidence. Thus, the legislature amended the statute to allow the trier of fact to be told why test results were not produced, but prohibited the use of that information as a foundation for any inference. In my judgment, the legislature had a rational basis for amending the statute in the manner it did, and its action should be upheld. Judges Chasanow and Smith join in this opinion.
MARVIN H. SMITH, Judge of the Court of Appeals of Maryland, dissenting.
I join in the dissent of Judge McAuliffe. However, I would go further. Given the instruction to the jury by the trial judge, I would hold that if there is error, it is harmless beyond a reasonable doubt.
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