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Reed v. Maryland9/6/1978
d. Intoxication
Chemical intoxication tests are now well established as an aid to law enforcement. "For a number of years, chemical intoxication tests have been routinely used to establish that a defendant had been driving a motor vehicle while under the influence of intoxicating liquor. In most states, statutes provide for the admissibility of the results of chemical tests for intoxication." Moenssens et al., supra, § 6.39 at 291 (footnote omitted). See, e.g., Maryland Code (1974, 1977 Cum. Supp.) §§ 10-302 to -309, Courts and Judicial Proceedings Article.
The tests were not always so readily recognized. Writing in 1964, one commentator stated, " here is no unanimity of scientific opinion as to the accuracy of the tests which have been developed, especially in regard to the accuracy of the breath tests." Kaplan, supra, 10 Wayne L. Rev. at 405-06. In People v. Bobczyk, 343 Ill. App. 504, 99 N.E.2d 567 (1951), the defendant "contend that the trial court erred in permitting the introduction of evidence concerning the [Harger] drunkometer test and the result shown thereby, on the ground that the drunkometer ha not received general scientific recognition as an accurate index of the amount of alcohol in the blood." Id. at 507. The court was urged to follow People v. Morse, 325 Mich. 270, 38 N.W.2d 322 (1949), which held the admission of evidence based on this instrument to be reversible error, citing only lie-detector cases. In that case the Michigan court applied the Frye standard, and said the evidence of the breath test should have been excluded after five doctors called by the defense testified that most of the medical profession did not consider the drunkometer reliable. The Illinois court ruled that disagreement as to reliability goes to the weight, not the admissibility of the evidence:
"Defendant argues that there is a lack of unanimity in the medical profession as to whether intoxication can be determined by breath. Even so we think this objection goes to the weight of the testimony and does not destroy its admissibility. The evidence in this case shows that the experts called
by the State are eminently qualified in the field in question. In our view the opinion in the case of McKay v. State (Tex. Crim. App.), 235 S.W.(2d) 173 [(1951)], is best reasoned and most analogous to the present case." 343 Ill. App. 510-11.
The Supreme Court of Arizona considered the issue of the admissibility of evidence based on the Harger drunkometer in State v. Olivas, 77 Ariz. 118, 267 P. 2d 893 (1954). The court noted that there was some disagreement among scientists as to the accuracy of the test. Referring to Bobczyk, the Arizona court said:
"In this last mentioned case, Illinois refused to follow People v. Morse, supra, and held that where there is a lack of unanimity in the medical profession whether intoxication can be determined by breath, the scientific disagreement affects only the weight and not the admissibility of evidence. We think this is the correct rule in tests of this character." Id. at 119.
But cf. Rivers v. Black, 259 Ala. 528, 68 So. 2d 2 (1953) (approving Frye test in dictum).
In Kallnbach v. People, 125 Colo. 144, 242 P. 2d 222 (1952), it was determined by analysis of the defendant's blood using the Nicloux method that he was driving while intoxicated. The court concluded that the defendant's objections to the accuracy of the Nicloux method went to the weight of the evidence rather than to its admissibility:
"There was testimony introduced on defendant's behalf regarding the Nicloux method of blood analysis and questioning the accuracy thereof. Aside from any blood analysis, there
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