Maryland Montgomery County Driving Intoxicated Breathalyzer Test Blood Alcohol Content Lawyers Attorneys

James Edward TERESHUK v

James Edward TERESHUK v. STATE of Maryland

Court of Special Appeals of Maryland

January 17, 1986

On July 4, 1984, appellant was arrested for "Driving while intoxicated. He submitted to a breathalyzer test, which measures an individual's blood alcohol content, and registered a .15 two percentage points above the blood alcohol content level considered prima facie evidence of intoxication.

Appellant initially requested a jury trial, and as a result his case was removed from the District Court for Montgomery County and docketed in the Circuit Court. In a letter dated August 20, 1984, the State informed appellant that it intended to treat him as a "subsequent offender" pursuant to Transp. art., 27-101(f) because of his two prior convictions for driving while impaired, December 13, 1977 and July 6, 1978. Before the scheduled trial date, the State and appellant reached a plea arrangement: the State among other things agreed to amend its charging document to allege "Driving while under the influence of alcohol" (Transp. art., 21-902(b)) -- a lesser offense than "Driving while intoxicated" ( 21-902(a)) -- and, appellant, for his part, agreed to pleadguilty to the amended charge. On May 9, 1985, the court held that his prior convictions for driving "while his driving ability was impaired by the consumption of alcohol" brought him within the purview of the "subsequent offender" provision ( 27-101(f)). It sentenced him to one year but suspended execution of all except 60 days of the sentence, in favor of two years' supervised probation. Defendant challenged a decision from the Circuit Court for Montgomery County (Maryland), which convicted defendant of driving while under the influence of alcohol.

Issue:

Whether a person convicted of Driving while under the influence of alcohol can be sentenced as a second or subsequent offender under 27-101(f) when the repeat offender treatment is based on prior convictions for Drivingwhile ability impaired by alcohol?

Discussion:

The Court held that former 21-902(a) and (b) were not unconstitutionally vague, and in so doing commented that, "It remains ultimately a question for the jury whether an accused was intoxicated, impaired, or under the influence of alcohol in accordance with the common meaning of those terms." Brooks, of course, pre-dated the 1981 legislation. That fact alone would discount any value that might be placed on appellant's construction of Brooks. More important, the passage relied on by appellant, when read in context, in no way recognizes "impaired" and "under the influence" as different offenses. To the contrary, immediately before the passage, we noted, while ascribing a "common meaning" to the word "impaired," that "the caselaw seems to indicate that the phrases 'under the influence of alcohol' and 'ability impaired by alcohol' are synonymous." Brooks, 41 Md.App. at 128 n. 2, 395 A.2d 1224. Thus, Brooks provides no support for his position. Appellant's claim is apparently and necessarily based on the notion that the only public notice of the law is that provided by the Annotated Code. But that is not the case. The actual law is that set forth in the bill enacted by the Legislature, which is published in the annual session laws and is generally available to the public. With this fundamental concept in mind, it is clear that appellant's "fair notice" claim under the guise of due process is unfounded. As we noted, 2, ch. 242 of the 1981 Laws of Maryland is explicit: "Driving under the influence of alcohol" shall have the "same meaning and effect" as its precursor, "Driving while ability impaired by alcohol." That is the law and since its enactment has been a matter of public record. This Court affirmed the defendant's conviction and sentence.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

Maryland Montgomery County Driving Intoxicated Breathalyzer Test Blood Alcohol Content Lawyers Attorneys

By: Atchuthan Sriskandarajah

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