By David Daggett

Legal Update: Timing and location of the detection of the odor of marijuana prior to conducting a vehicle search
State of Maryland v. Terrance Grant, No. 65, September Term 2015, Filed July 12, 2016.

In a case arising out of Frederick County, the Maryland Court of Appeals overruled the Court of Special Appeals and the Frederick County Circuit Court and held that a police officer must detect the odor of marijuana (ultimately forming the basis of an automobile search) before he inserts his head (or nose) inside the vehicle.

Grant involved a Frederick County deputy who stopped the defendant/Petitioner for speeding. As the deputy approached from the passenger side, the defendant rolled down the passenger window. Petitioner Terrance Grant was the driver and sole occupant of the vehicle. At the suppression hearing, the testimony on the record was unclear as to when the odor of marijuana was first detected and whether the deputy’s nose/head crossed the threshold of the window before or after he detected the odor of marijuana. After the odor was detected, a drug dog was requested and ultimately alerted on the vehicle. A subsequent search of the vehicle revealed 1.6 grams of marijuana, as well as a smoking device which contained burnt marijuana residue. This incident took place – and the case was heard – prior to the advent of the October 1, 2014 decriminalization of less than 10 grams of marijuana.

At the Suppression Hearing the defense moved to suppress the marijuana, arguing that an illegal search occurred in violation of the Fourth Amendment when the deputy inserted his head into the passenger window. The COA ultimately determined that because the evidence was unclear regarding the timing of the deputy’s detection of the odor of marijuana, and in the absence of a finding that the deputy detected the odor of marijuana before he inserted his head into the passenger window, the State did not satisfy its burden regarding the lawfulness of the search.

The Court of Appeals concluded that the search must be considered unreasonable if the deputy did not detect the odor of marijuana or observe suspicious behavior prior to inserting his head into the passenger compartment. The record did not reflect any suspicious activity, exigent circumstances, suspicion of flight, destruction of evidence, probable cause that the vehicle contained contraband or any other warrantless exception to the search warrant requirement. In other words, the officer must develop the probable cause for his search (or reasonable suspicion for further detainment) prior to entering the vehicle.

SYNOPSIS OF NEW LAW REGARDING THE DRAWING OF BLOOD BY HOSPITAL STAFF (From Kit)

During this past legislative session, the Maryland State’s Attorneys’ Association – thanks to the strong backing of Delegates Geraldine Valentino–Smith, Vanessa Atterbeary and Brett Wilson, Senator Bob Cassilly and many dedicated prosecutors and nurses – was successful in passing House Bill 773, Drunk and Drugged Driving – Evidence of Blood Test, otherwise known as the “Nurses Bill.” While from the outset it seemed like a long-shot to pass, beginning on October 1, 2016, that long-shot will become reality.

HB 773 amends § 10-304 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code and should make things much easier on the State when prosecuting blood kit cases.

In a nutshell, the significance of the amendment is that the nurse or other qualified medical person who drew the blood is no longer a required witness in the chain of custody.

The pertinent language reads as follows:

If a law enforcement officer testifies that the officer witnessed the taking of a blood specimen by a person who the officer reasonably believed was a qualified medical person, the officer’s testimony shall be sufficient evidence that the person was a qualified medical person and that the blood was obtained in compliance with this section, without testimony from the person who obtained the blood specimen.

The other slight alteration was the definition of “qualified medical person.” The previous statutory definition of “qualified medical person” was “any person permitted by law to withdraw blood from humans. That has been changed to, “a person permitted to withdraw blood from a human.” The removal of the words “by law” is significant in that no one has ever been able to point out anywhere where such a listing of persons permitted to withdraw blood could be found.

Finally, all the requirements regarding certified statements and notifying defense attorneys in writing, etc., have been removed and are no longer required of the State.

The chief advantage in this amendment is that the State no longer has to track down and subpoena the nurse or other qualified medical person who simply drew the blood and handed the tubes over to the officer. For all intents and purposes, the person drawing the blood has been removed from the chain of custody and the blood results can be admitted with the officer’s and analyst’s testimony.

Even though the burden on the State has become much more bearable, certain responsibilities remain, especially on law enforcement.

Responsibilities of Law Enforcement

The law enforcement officer responding to the hospital with the blood kit should make every effort to follow the guidelines listed below:

  1. Check that the blood kit has not reached its expiration date;
  2. Find a person at the hospital that appears to be a doctor or R.N (Looks like a duck? Walks like a duck? Quacks like a duck?);
  3. Ask that person what their job title is;
  4. Ask that person if they are permitted to draw blood as part of their regular duties;
  5. Get their name and contact information;
  6. If possible, take a picture of the person as well as of their name tag;
  7. Remain present and witness the blood being drawn;
  8. Observe that each tube was removed from the needle and holder prior to the needle being withdrawn from the arm. This phlebotomy protocol prevents any possible contamination from the skin when the needle is removed from the arm and circumvents any such defense arguments;
  9. Make sure the blood was drawn (and inverted) in compliance with the kit instructions;
  10. Receive the blood directly from the person who drew it;
  11. Make a note that the color of the tube stopper (top) was gray.
  12. Have the person drawing the blood complete the Blood Collector’s Report;
  13. Comply with the remainder of the Investigating Officer’s requirements as indicated by the instructions located in the kit;
  14. Remove the backing from the Kit Box Shipping Seal and affix it to the box where indicated;
  15. Fill out all the information requested on the box top, then mail or hand deliver the sealed kit for laboratory analysis. Do not leave it in the trunk of your cruiser.

Most of the items listed above are merely carryover requirements from the previous wording of the statute, though the new language makes the officer slightly more responsible for items to which the nurse would have previously testified.

Prosecutors Beware

  1. Establishing a “reasonable belief” that the person drawing blood was a qualified medical person:
    The prosecutor should be allowed to question the officer about his discussions with the person who ended up drawing the blood. It is admissible hearsay in that it doesn’t go to the truth of the matter asserted but rather, to the effect that statements had on the listener. After all, how else can you establish that the officer’s belief was reasonable? The person was dressed like a nurse. She had a name tag with the letters RN after her name. She said she was a registered nurse. She said that part of her job description was to draw blood from patients. These facts are necessary to establish a “reasonable belief” on the part of the officer.
  1. Defense attorneys summonsing the nurse:
    The main impetus behind this bill was to ensure that nurses weren’t made to be summonsed to court simply with the hope that they wouldn’t appear and that the blood results would therefore be suppressed. Another reason behind the amendment to the statute was that nurses were being drawn away from their rounds, causing a burden to hospitals in scheduling, as well as possible safety issues to patients. Rarely do defense attorneys have a legitimate issue with the actual drawing of the blood. Almost inevitably, once the nurse appeared in court, he/she was excused and their testimony stipulated to. The defense should not be permitted to attempt an end-around this new statute by summonsing the nurse and then seeking a postponement of the trial (or worse yet, a body attachment) if the nurse doesn’t appear. One way to avoid this is to request that a Motion’s Hearing be set prior to trial and require the defense to proffer to the court why the nurse’s presence is required.
  1. The defense argument that the swab used to cleanse the skin prior to the blood draw contained alcohol and contaminated the sample:
    This defense argument is about the silliest I’ve heard and this claim is potentially only useful in attacking DUI alcohol cases. Swab alcohol will not negatively affect the blood analysis in DUI drug cases.

    The gist of this argument is that alcohol used on the disinfectant swab can enter the tube and raise the BAC level. Please! To even remotely have the possibility of affecting the test results, a significant amount of liquid alcohol from the swab would have to enter the needle and contaminate the sample as a result of the draw sight not being completely dry. In addition, the substance on the swab would have to consist of ethyl alcohol, which is never used. This is not the old west, where cheap Rye Whiskey is poured over a wound and knife for sterilization by grizzled Doc Adams before removing a bullet from Matt Dillon, as our hero chomps down on a mesquite branch.

    The swabs that are used in the blood kits are non-alcohol swabs. The actual antiseptic swabs in the kits are treated with povidone-iodine (Betadine) and don’t contain alcohol. The officer who observed the blood draw can testify what type of swab was used to cleanse the skin. If necessary, have him bring along an unopened kit and produce an unopened swab.

    Chemists from the Crime Lab can testify that if there ever were the rare occasion in which a different swab from the one in the kit were used, that swab would be treated with isopropyl alcohol and not ethyl alcohol The type of alcohol consumed by a drinker – and ultimately measured and reported in a blood test – is ethyl alcohol. The Maryland State Police Crime Lab uses gas chromatography to determine blood alcohol concentrations. When used in blood alcohol testing, it detects and reports isopropyl alcohol separately from ethyl alcohol. Only ethyl alcohol is reported. Your Crime Lab chemist will testify to this.

    Even if, by some bizarre chain of events, an ethyl alcohol swab were used, the idea that the amount of swab alcohol that might be present on the minute spot on the skin where the needle enters the body would somehow contaminate up to 20 ml of blood is just plain ludicrous. One need only google “Alcohol Swabs and BAC Results” to find studies concluding there is in imperceptible effect between the two.

  1. The defense argument that the presence of clots in the blood sample can artificially increase the reported alcohol concentration:
    In DUI alcohol cases, blood collection tubes with gray stoppers are commonly used because they contain both an anti-coagulant and a preservative. These gray top tubes are specifically recommended for DUI blood draws and are found in the blood kits.

    Have the officer testify that the blood was collected in gray top tubes and the tube contained a white powdery substance, which indicates the presence of an anti-coagulant. The officer can testify that after the blood draw the tubes were subsequently inverted as recommended by the kit instructions to ensure the anticoagulant mixed with the blood. Again, having an unopened blood kit will allow the officer to produce a sample tube showing the gray top and white powdery substance. The Crime Lab technician can also testify that upon inspection before testing, it was verified that there was no undissolved powder and no clots present.

Conclusion

HB 773 (amending TR § 10-304) takes effect on October 1, 2016 and will apply to blood tests occurring on or after that date. While the amendment should certainly make it easier on the State to go forward with blood kit cases, it is also incumbent upon police and prosecutors to do our best to show that the blood was drawn without issue and according to statute. The crash scene/investigating officer must make every effort to ensure that the blood collection process was above reproach. The prosecutor must make sure that the defense isn’t able to manipulate the statute and be allowed to summons the nurse when there is no legitimate issue as to the blood draw. Prosecutors should reach out to the officer and Crime Lab staff prior to trial in order to adequately prepare them for testimony.

And don’t forget those warrants! Whenever possible, make a concerted effort to obtain a warrant, especially in those cases involving fatalities and/or life-threatening injuries.

AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE WITH ANY SPECIFIC QUESTIONS REGRDING THIS SUBJECT MATTER.