What did prosecutors have to prove before a Maryland court would admit a DUI blood or breath alcohol test result?

Plain-English summary

A State's Attorney asked the Attorney General what evidence the State had to introduce before a Maryland court would admit the results of a blood or breath alcohol test in a drunk-driving prosecution, particularly when the defendant had waived the right to have the testing technician testify in person. The opinion worked through Maryland's Courts and Judicial Proceedings Article and Transportation Article and concluded that the State had to establish, through testimony or documentary evidence, four things: that the test was administered by a person qualified under the statute, that the test equipment was approved by the toxicologist on the staff of the Postmortem Examiners Commission, that the breath or blood specimen was taken within two hours of the driver's apprehension, and, for a breathalyzer test, that the chemical solution used was likewise toxicologist-approved. The opinion found that none of these foundation elements required the technician's live testimony, since the statute allowed written reports and toxicologist certifications to substitute, and that a Miranda warning was not a prerequisite to test admissibility because the Supreme Court had already held that asking a suspect to take a blood-alcohol test is not an "interrogation" under Miranda.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

An editor's note appended to the opinion reports that the Court of Appeals addressed closely related issues the following year in Moon v. State, 300 Md. 354 (1984), and Sites v. State, 300 Md. 702 (1984), both bearing on a defendant's rights when the State seeks to introduce chemical test evidence. Maryland's DUI evidentiary statutes and the underlying constitutional case law have continued to develop since 1983 and 1984; verify the current Courts and Judicial Proceedings Article, Transportation Article, and controlling case law before relying on any specific foundation requirement described here.

Common questions

Did the State have to put the technician who ran a DUI blood or breath test on the witness stand?
Not necessarily, according to this opinion. If the defendant waived the right to require the technician's testimony, the required foundation, including the technician's qualifications, equipment approval, and timing of the sample, could instead be established through a written report of test results or other documentary evidence, such as a toxicologist's signed statement of equipment approval.

Did police have to read a driver their Miranda rights before a breath or blood alcohol test?
No. The opinion concluded that no Miranda warning was required before administering the test, relying on the U.S. Supreme Court's holding in South Dakota v. Neville that asking a detained driver to take a blood-alcohol test is not an "interrogation" within the meaning of Miranda v. Arizona.

What happened if the State could not show the equipment or chemical solution used in a test was approved?
The opinion explained that Maryland's evidentiary statute made only test results obtained in compliance with the statutory safeguards admissible, and that a resulting failure to show approval, if the defendant objected, could lead to exclusion of the test results, since the statute's foundation requirements used the mandatory word "shall."

Did the two-hour testing window matter even if the driver's blood alcohol level was clearly measured accurately?
Yes, under this opinion. The statute required the breath or blood specimen to be taken within two hours of the driver's apprehension, and the opinion cited a Court of Special Appeals case, Major v. State, indicating that the State's failure to establish this timing, if the defendant objected, would lead to exclusion of the test results regardless of the test's apparent accuracy.

Background and statutory framework

The opinion worked through Subtitle 3 of Title 10 of the Courts and Judicial Proceedings Article, which made chemical test results "admissible in evidence" under CJ §10-307(a) only when obtained in compliance with several statutory safeguards. CJ §10-303 required the breath or blood specimen to be "taken within two hours after the person accused is apprehended." CJ §10-304 required the test to be administered by a "qualified person," trained under a program approved by the toxicologist on the staff of the Postmortem Examiners Commission, using equipment likewise approved by that toxicologist, and CJ §10-304(e) allowed a signed toxicologist statement certifying equipment approval to serve as prima facie evidence of that fact without requiring the toxicologist to testify in person. CJ §10-306(a) permitted the State to introduce an "official copy of the results" of a chemical test as substantive evidence without the technician's presence, so long as the State gave the defendant 15 days' notice under CJ §10-306(b); a defendant's failure to timely object to that notice waived the right to demand the technician's testimony. CJ §10-309(a) then provided that evidence of a chemical analysis obtained "contrary to" these statutory provisions was not admissible in a prosecution for driving while intoxicated or under the influence.

The opinion found each of the State's four required foundation elements, technician qualification, equipment approval, specimen timing, and, for breath tests, chemical solution approval, satisfied through documentary proof rather than live testimony, citing the North Carolina Court of Appeals' summary in State v. Mullis of the alternative ways a state could establish a technician's qualifications by stipulation, by the technician's permit, or by other evidence. On timing, the opinion cited Major v. State for the proposition that the State's failure to establish the two-hour window, if objected to, could result in exclusion. The opinion distinguished these statutory foundation requirements from any constitutional floor, noting that Schmerber v. California and State v. Moon established that the federal Constitution alone would not bar the State from compelling every detained driver to submit to a test, so the foundation requirements here were purely statutory creations that the General Assembly could also choose to relax. Finally, relying on South Dakota v. Neville, the opinion concluded that because a police request to take a blood-alcohol test is not custodial "interrogation" under Miranda v. Arizona, no Miranda warning had to be given or proven before the test results could be admitted.

Citations

Statutes:

• CJ §10-307(a) (chemical test results admissible if obtained under the subtitle)
• CJ §10-306(a) (official copy of test results admissible without technician testimony)
• CJ §10-306(b) (15-day notice procedure and waiver of right to technician's testimony)
• CJ §10-303 (specimen must be taken within two hours of apprehension)
• CJ §10-304(a)(3), (b), and (c) (qualified person and approved equipment requirements)
• CJ §10-304(e) (toxicologist's signed statement as prima facie evidence of equipment approval)
• CJ §10-309(a) (exclusion of test results obtained contrary to statutory requirements)
• CJ §10-309(c) (exclusionary rule limited to DWI/DUI prosecutions)
• CJ §10-101 (business record exception to the hearsay rule)
• Tr §16-205.1(b)(1) (procedure before a chemical test is requested)
• Tr §16-205.1(f)(4) (administrative license suspension for test refusal)
• §5-305(a)(2) of the Health-General Article (toxicologist approval authority)
• Chapter 289, Laws of Maryland 1983 (amending CJ §10-304(b) and §10-305)
• Chapters 93 and 100, Laws of Maryland 1982 (amending Tr §16-205.1 and CJ §10-309 after State v. Loscomb)

Cases:

• Miranda v. Arizona, 384 U.S. 436 (1966)
• Schmerber v. California, 384 U.S. 757 (1966)
• State v. Moon, 291 Md. 463, 477 (1981)
• State v. Griggy, 440 N.E.2d 74, 76 (Ohio Mun. Ct. 1982)
• Ahsogaek v. State, 652 P.2d 505 (Alaska App. 1982)
• State v. Loscomb, 291 Md. 424 (1981)
• State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977)
• State v. Mullis, 247 S.E.2d 265, 266 (N.C. Ct. App. 1978)
• Major v. State, 31 Md. App. 590, 594-95 (1976)
• Dietz v. Moore, 277 Md. 1, 7 (1976)
• Jones v. State, 205 Md. 528, 533 (1954)
• Johns v. State, 55 Md. 350, 362 (1881)
• State v. Baker, 355 P.2d 806, 809 (Wash. 1960)
• State v. DeVito, 311 A.2d 753 (N.J. Super. A.D. 1973)
• South Dakota v. Neville, 459 U.S. 553 [103 S.Ct. 916, 923 n. 15] (1983)
• Moon v. State, 300 Md. 354 (1984) (editor's note, post-dates the opinion)
• Sites v. State, 300 Md. 702 (1984) (editor's note, post-dates the opinion)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Vehicle Laws—Alcohol-Related Offenses—Alcohol Tests—Foundation Evidence—Review of Content and Form of Evidence Required as Foundation to Introduction of Test Results.

June 1, 1983

The Honorable Walter B. Dorsey
State's Attorney for St. Mary's County

You have requested our opinion as to the evidence that the State must introduce as a foundation to its introduction of the results of a blood alcohol test in a prosecution. Specifically, you inquire whether the State has a legal duty to introduce the following evidence, even if the defendant has waived the right to the presence and testimony of the technician who administered the test:

(i) evidence that the test was administered by a qualified person;
(ii) evidence that the test equipment was approved by the requisite toxicologist;
(iii) evidence that the test was administered within two hours after the defendant was apprehended;
(iv) if a breathalyzer test was used, evidence that the chemical solution used in the test was approved by the toxicologist; and
(v) evidence that, prior to the test, the defendant was given the notice of constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436 (1966).1

For the reasons given below, we have concluded as follows:

(1) The State must introduce, as a foundation to introduction of the results of a blood alcohol test, evidence that the test was administered by a person qualified to do so under the law. If the defendant has waived the right to require the testimony of the person who administered the test, these qualifications may be established by a written report of test results or otherwise by documentary evidence.

1 You state that at least one District Court Judge has required all of this evidence to be introduced by the State prior to introduction of the blood alcohol test results, even in cases where the defendant had waived the right to the presence and testimony of the technician who administered the test.

(2) The State must introduce evidence that the test equipment was approved by the toxicologist on the staff of the Postmortem Examiners Commission. This approval may be established by a written statement from the toxicologist or otherwise by documentary evidence.

(3) The State must introduce evidence that the specimen of breath or blood used for the test was taken within two hours after the driver's apprehension. In some circumstances, this fact may be established by documentary evidence.

(4) The State must introduce evidence that the chemical solution used in a breath test was approved by the toxicologist. This approval may be established by a written statement from the toxicologist or otherwise by documentary evidence.

(5) The State need not introduce evidence that the driver was given a Miranda warning prior to the test.

I
Statutory Requirements

A. Courts Article

The evidentiary use of chemical tests for blood alcohol content is provided for in Subtitle 3 of Title 10 of the Courts and Judicial Proceedings Article ("CJ" Article) of the Maryland Code.

Under CJ §10-307(a), "the amount of alcohol in the person's breath or blood shown in chemical analysis as provided in this subtitle is admissible in evidence" and may give rise to certain presumptions about the effect of alcohol in the defendant. See CJ §10-307(b) through (e).

Under CJ §10-306(a), the State may introduce "an official copy of the results of a chemical test of breath or blood administered by a person authorized to administer the test ... as substantive evidence without the presence or testimony of the technician who administered the test". To do so, however, the State must follow the procedure specified in CJ §10-306(b), that is, at least 15 days prior to trial, it must (i) notify the defendant of its intention to offer a written report of test results and (ii) provide the defendant with a copy of the report.

The defendant then has the right, on timely notice, to insist on the technician's testimony. CJ §10-306(b). However, the defendant's "[f]ailure to give timely and proper notice constitutes a waiver of the defendant's right to the presence and testimony of the technician." Id.

Subtitle 3 also requires that certain safeguards be followed to assure the accuracy of the tests. First, CJ §10-303 imposes a time limit on the taking of the test sample: "The specimen of breath or blood shall be taken within two hours after the person accused is apprehended." Second, under CJ §10-304, the person administering the test must be qualified and the equipment used must be approved:

"(a)(1) In this section the following words have the meanings indicated.
(2) 'Qualified medical person' means any person permitted by law to withdraw blood from humans.
(3) 'Qualified person' means a person who has received training in the use of the equipment in a training program approved by the toxicologist under the Postmortem Examiners Commission and who is either a police officer, a police employee, or an employee of the office of the Chief Medical Examiner.
(b) The chemical test of breath shall be administered by a qualified person with equipment approved by the toxicologist under the Postmortem Examiners Commission at the direction of a police officer.2
(c) 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. The chemical test of blood shall be conducted by a qualified person using equipment approved by the toxicologist under the Postmortem Examiners Commission in a laboratory approved by that toxicologist.

(e) For the purpose of establishing that the test was administered with equipment approved by the toxicologist under the Postmortem Examiners Commission, a statement signed by the toxicologist certifying that the equipment used in the test has been approved by him shall be prima facie evidence of the approval, and the statement is admissible in evidence without the necessity of the toxicologist personally appearing in court."

2 Chapter 289, Laws of Maryland 1983, effective July 1, 1983, will amend CJ §10-304(b) to require, in addition, that: "The officer arresting the individual may not administer the chemical test of breath." This act also will amend CJ §10-305 to require that breath tests be administered to all detained drivers except in specified, limited circumstances.

Finally, in a prosecution for driving while intoxicated or while under the influence of alcohol, CJ §10-309(a) requires that test results be excluded if they are obtained "contrary to" the statutory requirements. It provides, in relevant part: "Except as provided in §16-205.1(c) of the Transportation Article, [pertaining to accidents that result in the death of another person,] a person may not be compelled to submit to a chemical analysis provided for in this subtitle. Evidence of chemical analysis is not admissible in a prosecution for a violation of §21-902 of the Transportation Article [i.e., a prosecution for driving while intoxicated or under the influence of alcohol,] if obtained contrary to its provisions."

B. Maryland Vehicle Law

Under §16-205.1 of the Transportation Article ("Tr" Article) of the Maryland Code, a police officer must follow certain procedures prior to having a chemical test administered to a driver who is detained on suspicion of driving or attempting to drive while intoxicated or under the influence of alcohol:

"(b)(1) Except as provided in subsection (c) of this section, [pertaining to accidents that result in the death of another person,] a person may not be compelled to take a chemical test for alcohol. However, the detaining officer shall advise him that on receipt of a sworn statement from the officer that the driver was so charged and refused to take a chemical test for alcohol, the [Motor Vehicle] Administration shall . . . suspend his driver's license for a period of not less than 60 days nor more than 6 months ....
(2) ... [T]he police officer shall:
(i) Detain the individual;
(ii) Request that the individual permit a chemical test to be taken of the individual's blood or breath to determine the alcoholic content of the individual's blood; [and]
(iii) Advise the individual of the administrative penalties that shall be imposed for refusal to take the test[.]"

As a general rule, then, a driver in Maryland has the right to refuse to take a chemical test for alcohol. That refusal will result in administrative penalties [Tr §16-205.1(f)(4)], but is not admissible in a prosecution for driving while intoxicated or while under the influence of alcohol [CJ §10-309(a)].

II
The State's Burden of Proof Concerning Foundation Evidence

At the outset, we note that restrictions on, or prerequisites to, the evidentiary use of blood test results are generally a matter of statutory requirement. The Constitution would not, for example, prevent the State from compelling every detained driver to submit to a chemical test and then introducing the results in evidence. Schmerber v. California, 384 U.S. 757 (1966); State v. Moon, 291 Md. 463, 473 (1981).3

3 We do not mean to suggest that constitutional violations could never occur. For example, the State's knowing use of inaccurate test equipment would undoubtedly be a violation of due process. But your inquiry does not require consideration of such extreme situations.

However, the current statute does impose a duty of compliance on the State. Only a "chemical analysis as provided in this subtitle is admissible in evidence". CJ §10-307(a). All of the provisions regarding test accuracy and required notice, set out in Part I above, use the mandatory term "shall". Most importantly, CJ §10-309(a) provides for the exclusion from evidence of test results obtained contrary to the specified requirements.4

Therefore, the results of a chemical test are not admissible if (i) the State fails to show that it complied substantially with the statutory requirements, and (ii) the defendant objects to the introduction of the test results. See, e.g., State v. Griggy, 440 N.E.2d 74, 76 (Ohio Mun. Ct. 1982) (results inadmissible if prosecution does not meet foundation requirements of statute, "unless the defendant fails to object"). Cf. Ahsogaek v. State, 652 P.2d 505 (Alaska App. 1982) (substantial compliance sufficient).

Foundation evidence is especially important to establish the accuracy of the test, for test results based on faulty equipment or procedures are of little value:

4 Prior to 1982, CJ §10-309(a) read, in pertinent part, as follows: "A person may not be compelled to submit to a chemical analysis provided for in this subtitle. Evidence of chemical analysis is not admissible if obtained contrary to its provisions." In State v. Loscomb, 291 Md. 424 (1981), the Court of Appeals held that this exclusionary rule was applicable, in a prosecution for manslaughter by automobile and homicide by motor vehicle while intoxicated, "if there has been a failure to comply with the procedural requirements of §16-205.1[(b) of the Maryland Vehicle Law]". 291 Md. at 435. In so holding, the Court observed that "the legislative history of §10-302 through §10-309 and §16-205.1 shows that these sections are integrally interrelated". 291 Md. at 432. At its next session, the General Assembly amended both Tr §16-205.1 and CJ §10-309 to assure that blood alcohol test results would be available in prosecutions for crimes involving the death of a person. Chapters 93 and 100, Laws of Maryland 1982. Tr §16-205.1(c) now requires the driver to submit to a test if an accident has resulted in death. Moreover, the exclusionary rule in CJ §10-309(a) is now limited to prosecutions for driving while intoxicated or while under the influence of alcohol. See CJ §10-309(c). However, we do not understand the General Assembly to have altered the Court's conclusion that the exclusionary rule in CJ §10-309(a) applies if the requirements of either Subtitle 3 of Title 10 of the Courts Article or Tr §16-205.1 were violated.

"The proponent of a chemical or scientific test must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability .. . . Without a foundation guaranteeing the test's reliability, the test result is not probative as a measurement and hence is irrelevant." State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).5

Against this background, we now examine whether the statute requires the particular elements of proof about which you inquire.

III
Required Elements of Proof

A. Qualifications of Technician

If the State intends to introduce the results of a breath or blood test, it must first establish that the test was administered or conducted by "a qualified person", i.e., "a person who has received training in the use of the equipment in a training program approved by the toxicologist under the Postmortem Examiners Commission and who is either a police officer, a police employee, or an employee of the chief Medical Examiner". CJ §10-304(a)(3), (b), and (c).

This fact can, of course, be established through the testimony of the technician who ran the test, with supporting evidence. But, if the defendant has waived the right to require the technician to testify, proof of qualification can properly be offered by other means. For example, the fact of qualification

5 We note that the State toxicologist has issued detailed regulations concerning personnel and equipment, with the purpose of assuring accurate test results. See Regulations of the Toxicologist, Office of the Chief Medical Examiner, Post Mortem Examiners Commission, State of Maryland, Regarding Tests of Breath and Blood for Alcohol (1983).

may be proved through its inclusion in the "official copy of the results of [the] chemical test" permitted by CJ §10-306(a).6

In interpreting a North Carolina statute that required the test to be performed "by an individual possessing a valid permit issued by the Department of Human Resources", the North Carolina Court of Appeals summarized the alternative means of compliance as follows: "The mandate of the statute can be met in one of three ways: (1) by stipulation between the defendant and the State that the individual who administers the test holds a valid permit issued by the Department of Human Resources; or (2) by offering the permit of the individual who administers the test into evidence ... ; or (3) by presenting any other evidence which shows that the individual who administered the test holds a valid permit issued by the Department of Human Resources." State v. Mullis, 247 S.E.2d 265, 266 (N.C. Ct. App. 1978).

The comparable Maryland requirement can likewise be met in these ways.

B. Evidence of Equipment Approval

The equipment used to test breath or blood must be "approved by the toxicologist [on the staff of] the Postmortem Examiners Commission". CJ §10-304(b) and (c). See §5-305(a)(2) of the Health-General Article of the Maryland Code.

This section goes on to specify the form of proof that will establish this fact: "[A] statement signed by the toxicologist certifying that the equipment used in the test has been approved by him shall be prima facie evidence of the approval, and the statement is admissible in evidence without the necessity of the toxicologist personally appearing in court." CJ

6 We do not think that the term "results" is limited simply to the numerical outcome (i.e., the percentage of alcohol in the defendant's blood). Some account of testing procedures, including proof of the qualifications of the technician (e.g., by reference to his or her current certification number), may certainly be a part of any report of test "results" and would be sufficient to meet the statutory requirement.

§10-304(e). This written statement is plainly sufficient to establish equipment approval, whether or not the person who administered the test testifies.7

C. Evidence of Timely Testing

The "specimen of breath or blood" on which the test is performed must have been "taken within two hours after the person accused is apprehended". CJ §10-303. The State's failure to so establish would, on the defendant's objection, lead to exclusion of the test results. See Major v. State, 31 Md. App. 590, 594-95 (1976).

The evidence required to make this showing would ordinarily consist of two elements: the testimony of the detaining officer as to the time of apprehension, and the testimony of the person who took the sample as to the time of its taking. For a breath test, in which the taking of the sample and the administration of the test are essentially simultaneous, the time can be included in the report of test results that may be admitted under CJ §10-306(a). With respect to blood tests, if the "qualified medical person" who draws the blood sample states the time in a hospital or similar record, that record would itself be admissible under the business record exception to the hearsay rule, contained in CJ §10-101. See, e.g., Dietz v. Moore, 277 Md. 1, 7 (1976).

D. Evidence of Approved Solution

In a breathalyzer test, breath from deep in the driver's lungs passes through a chemical solution that extracts any alcohol from the breath sample. Because the ratio of alcohol in the

7 Whatever the evidentiary status of such written materials under the common law rules of evidence, the General Assembly has the power to prescribe new rules similar to that contained in CJ §10-304(e). Jones v. State, 205 Md. 528, 533 (1954). As long ago as 1881, the Court of Appeals observed that "there can be no question of the power of the Legislature to change the common law rules of evidence, or to prescribe new rules, altogether different from those known to the common law; and it may declare what proof shall be deemed or taken as prima facie sufficient to establish any particular fact, even in criminal cases." Johns v. State, 55 Md. 350, 362 (1881).

breath to alcohol in the blood is constant, this chemical measurement can readily be converted into the percentage of alcohol in the driver's blood.8 Of course, if the chemical solution is incorrectly formulated, then the test results will be inaccurate.

In our view, the ampoules containing the chemical solution are an integral element of the test equipment. Therefore, they must be "approved by the toxicologist [on the staff of] the Postmortem Examiners Commission". CJ §10-304(b). As to evidence of such approval, see Part III B above.9

E. Evidence of Miranda Warning

Under Miranda v. Arizona, 384 U.S. 436 (1966), "when an individual is taken into custody . . . and is subjected to questioning . . . [h]e must be warned prior to any questioning that

8 A leading case on the admissibility of breathalyzer test results described the operation of the machine as follows: "To operate the machine, the subject blows into the machine through a mouthpiece until he has emptied his lungs in one breath. The machine is so designed that it traps only the last 52½ cubic centimeters of air that has been blown into it. This air is then forced, by weight of a piston, through a test ampoule containing a solution of sulphuric acid and potassium dichromate. This test solution has a yellow hue to it. As the breath sample bubbles through the test solution, the sulphuric acid extracts the alcohol, if any, therefrom, and the potassium dichromate then changes the alcohol to acetic acid, thereby causing the solution to lose some of its original yellow color. The greater the alcoholic content of the breath sample, the greater will be the loss in color of the test solution. By causing a light to pass through the test ampoule and through a standard ampoule containing the same chemical solution as the test ampoule (but through which no breath sample has passed), the amount of the change in color can be measured by photo-electric cells which are connected to a galvanometer. By balancing the galvanometer, a reading can be obtained from a gauge which has been calibrated in terms of percentage of alcohol in the blood." State v. Baker, 355 P.2d 806, 809 (Wash. 1960).
9 Checking the formulation of the chemical solution requires breaking a sealed ampoule. Obviously, therefore, not every ampoule can be checked. However, the toxicologist's approval can certainly be based on a spot check within a large batch or on a manufacturer's certification. See State v. DeVito, 311 A.2d 753 (N.J. Super. A.D. 1973).

he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires". 384 U.S. at 478-79. This warning is required by the Fifth Amendment "to dispel the compelling atmosphere of [in-custody] interrogation". 384 U.S. at 465.

However, "[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda". South Dakota v. Neville, 459 U.S. 553, n. 15 [103 S.Ct. 916, 923 n. 15] (1983). Therefore, no Miranda warning need be given nor evidence of it presented.10

IV
Conclusion

In summary, it is our opinion that:

(1) The State must introduce, as a foundation to introduction of the results of a blood alcohol test, evidence that the test was administered by a person qualified to do so under the law. If the defendant has waived the right to require the testimony of the person who administered the test, these qualifications may be established by a written report of test results or otherwise by documentary evidence.

(2) The State must introduce evidence that the test equipment was approved by the toxicologist on the staff of the Postmortem Examiners Commission. This approval may be established by a written statement from the toxicologist or otherwise by documentary evidence.

10 Under Tr §16-205.1, however, the detaining officer must advise the driver of the "administrative penalties" that are imposed if the driver refuses to submit to a test. See generally 68 Opinions of the Attorney General 432 (1983). If the officer fails to comply with the requirements of Tr §16-205.1, blood alcohol test results may be excluded from evidence in a prosecution for driving while intoxicated or while under the influence of alcohol. See note 4 above.

(3) The State must introduce evidence that the specimen of breath or blood used for the test was taken within two hours after the driver's apprehension. In some circumstances, this fact may be established by documentary evidence.

(4) The State must introduce evidence that the chemical solution used in a breath test was approved by the toxicologist. This approval may be established by a written statement from the toxicologist or otherwise by documentary evidence.

(5) The State need not introduce evidence that the driver was given a Miranda warning prior to the test.

In conclusion, we observe that the provisions construed in this Opinion were enacted, according to the Court of Appeals, for "the protection of the public". State v. Moon, 291 Md. 463, 477 (1981). They serve this end by requiring measures to assure the accuracy of chemical tests, so that prosecutions involving such tests will have fair outcomes. As we have discussed, the State must show its compliance with these requirements.

But just as importantly, these provisions streamline the form in which much of the State's foundation evidence may be presented, and a law that permits a written report instead of live testimony is one that permits law enforcement personnel to spend their time protecting the public, instead of sitting in a courtroom.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: Since the issuance of this Opinion, the Court of Appeals has addressed closely related issues in the following two cases:

Moon v. State, 300 Md. 354 (1984), defendant's right of confrontation denied when trial court failed to require testimony of hospital technician before admitting results of alcohol test, obtained as part of hospital treatment, where record of results, on its face, gave rise to question of record's reliability, technician was available to testify, and defendant introduced reasonable objection.

Sites v. State, 300 Md. 702 (1984), where defendant's consent to take sobriety test was obtained in accordance with statute, no statutory basis exists for suppression of test results based on claimed denial of opportunity to consult with counsel; under Sixth Amendment, sobriety test not "critical stage" of prosecution so as to entitle defendant to consult counsel before testing; due process requires reasonable opportunity to consult with counsel before testing, but only if communication does not substantially interfere with timely and efficacious administration of test.