by David Daggett

The Maryland Court of Special Appeals recently issued two new, reported traffic related opinions favorable to prosecutors. The cases were Harding v. State, September Term, 2014, No. 1715 (opinion by J. Moylan) and Easter v. State, September Term, 2013, No. 1178 (opinion by J. Graeff), addressing issues related to impaired driving, blood samples and Event Data Recorders.


Easter v. State was a horrific Auto Manslaughter case out of Prince George’s County, prosecuted by ASA Sam Danai. On June 5, 2011 the defendant drove his vehicle into the rear of another vehicle at a speed of close to 90 miles per hour, killing three people in the other vehicle (the driver, the driver’s wife and another female passenger.) The husband of the second female victim survived, but suffered serious injuries. The appellant (Easter) had a blood alcohol content of .24 grams per 100 ml of blood. He was convicted by a jury of three counts of Auto Manslaughter, one count of causing a life-threatening injury while under the influence of alcohol and other related offenses. The appellant was sentenced to a total of 30 years’ incarceration.

The appellant raised two issues on appeal:

1.) That the state failed to establish a proper chain of custody between the blood obtained from the appellant and the blood that was tested; and

2.) That the trial court erred in allowing the State’s collision reconstructionist (Cpl. Frank Carson) to testify regarding the data acquired from the air bag control module without first establishing the validity of the methodology used to acquire that data.

  1. Chain of Custody of blood.

Regarding the admission of the blood test results, the issue stemmed from the fact that the actual blood that was tested (and the kit in which it was packaged) had been destroyed prior to trial. The State offered testimony from the officer who transported Easter to the hospital; from Cpl. Stephen Fox, who supplied the phlebotomist with the blood collection kit, observed the blood being drawn, observed the vials being sealed, and then collected and re-packaged the vials and sent them off to the Chemical Test for Alcohol Unit of the Maryland State Police; as well as from the phlebotomist who confirmed that he used the blood collection kit supplied to him, drew the blood and verified his signature on the chain of custody form.

Wayne Shu, a forensic scientist with the MSP Crime Lab, performed the blood alcohol testing and testified on behalf of the State. The two problems related to the blood results appeared to be that the actual blood (and collection kit) was not produced in court and that the chain of custody Form 34 that Mr. Shu had was different from the one that had been entered into evidence. Apparently Mr. Shu had the complete Form 34 while the one that had been entered into evidence was missing the bottom part of the form. On the stand, Mr. Shu explained the procedures of the CTAU, including those for the testing of the blood, chain of custody and final report.

The appellant objected to the admission of the blood results, arguing that the State had not established chain of custody and that, without the actual blood kit, the State could not establish that the blood tested by Mr. Shu was in fact, the same blood that was drawn from appellant Easter by the phlebotomist. He argued that the blood kit was handled and transferred between numerous unknown people from the postal service through the CTAU, thus, creating a hole in the chain of custody.

The Court of Special Appeals did not spend much time discussing the missing “bottom half” of Form 34, as the chemist had the complete form, top and bottom. Regarding chain of custody, the CoSA opined that, “in most cases, an adequate chain of custody is established through the testimony of key witnesses who are responsible for the safekeeping of the evidence, i.e., those who can negate the possibility of tampering…” and that “what is necessary to negate the likelihood of tampering or of change of condition will vary from case to case.” p.9. They went on to state that the existence of gaps or weaknesses in the chain of custody generally go to the weight of the evidence and do not require exclusion of the evidence as a matter of law.” p.9. The Court ultimately held that the chain of custody evidence was sufficient to allow a rational fact finder to determine that the blood tested was the same blood that was collected from the appellant and turned over to Cpl. Fox and ultimately, to Mr. Shu.

  1. Air Bag Control Module Data.

The second issue argued in Easter was whether the circuit court erred in allowing the State to offer evidence obtained from the air bag control module. The appellant argued that, even though the collision reconstruction expert called by the State knew how to retrieve and analyze the crash data from the ABCM, he did not know the specific “engineering parameters” that the module used in determining whether to deploy the air bag. That was apparently a “trade secret.” The appellant argued that since the State had not established the reliability of the data, that Corporal Carson was merely saying what the computer or vehicle’s computer system showed, but that there was no indication that the computer system was reliable. Finally, the appellant alleged that the retrieval tool used to collect the data was version 4.0, while the newest software version was actually 10.3.

The circuit court ultimately allowed the testimony, ruling that the appellant’s argument went towards whatever weight the jury wanted to give it, but not to its admissibility. Corporal Carson was then permitted to tell the jury about the data retrieved, which indicated that one second prior to the crash, the appellant’s vehicle was going 89 miles per hour, the brake was not applied, and because the brake was not applied, the air bag did not deploy.

The appellant argued before the Court of Special Appeals that because the State offered no information about the reliability of the system used to record and relate the stored data, that the reconstructionist did not have a sufficient factual basis for his expert testimony.

The CoSA wasn’t buying what the appellant was selling. It ruled that the decision to admit or exclude expert testimony is a matter within the discretion of the trial court and that expert testimony may be admitted if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. The Court referred to prong (3) of Maryland Rule §5-702, that when deciding whether the testimony will assist the trier of fact, one factor the trial court should consider is whether a sufficient factual basis exists to support the expert testimony.

The Court stated that an expert’s opinion “must be based on an adequate factual basis so that it does not amount to conjecture, speculation, or incompetent evidence.” p. 15. The Court then went on to discuss arguably the most important part of its opinion – the reliability of vehicle air bag control modules, a.k.a. event data recorders or ”black boxes.”

As discussed in the April, 2015 blog, Maryland does not have any cases addressing the reliability of air bag control modules. The Court of Special Appeals in Easter, while indicating the lack of precedent in Maryland, noted that other jurisdictions have concluded that “black box” data from a vehicle is reliable and admissible.

The Court of Special Appeals noted the cases of Com. v. Zimmerman, 873 N.E. 1215 (Mass. App. Ct. 2007) and People v. Christmann, 776 N.Y.S. 2d 437, (315 N.Y. Justice Ct. 2004) as allowing the admissibility of Event Data Recorder evidence. The CoSA ruled that Corporal Carson had extensive training in how to use the specialized equipment to retrieve data from the control modules; had been qualified as an expert in crash data retrieval from air bag modules on two prior occasions; had testified that the method he used to retrieve the data was accepted within the scientific community of reconstruction; that, in his experience the air bag control modules are very accurate; and that NHTSA studies have shown them to be accurate. The Court ultimately held that the circuit court did not abuse its discretion in determining that the air bag control module data was sufficiently reliable to support the reconstructionist’s testimony.

Easter now appears to be the first Maryland appellate decision addressing the admission of air bag control module data.


Harding v. State was an impaired driving case out of Baltimore City, tried by ASA Matt Pillion. The facts were as follows: On October 21, 2013 at approximately 1:20 a.m. an emergency call went out that an accident had just occurred and that it appeared that one or more persons might be trapped inside. Baltimore City firefighters were the first to arrive on the scene, with the police and ambulance arriving a short time later. The pick-up had apparently jumped a curb, crossed the sidewalk and gone into the bushes on the far side of the sidewalk. There was white steam coming from the vehicle’s engine compartment. Radiator fluid was coming from the truck and the engine was still running. According to one of the firefighters, the appellant was found “sitting…like at the driver’s wheel, slumped over…into the bench seat. The appellant seemed “out of it”, “wasn’t responsive” and “was intoxicated.” The appellant’s head appeared to be “laying up against the driver’s door.” The appellant woke up when a firefighter applied pressure to his chest. The appellant then got out of the pick-up and began walking away from it. According to one officer’s testimony, the appellant was “staggering down the sidewalk going back and forth,” apparently heading towards his house, which was just a short distance away. Naturally, the appellant refused to do any field sobriety tests and refused to submit to a breath test.

Apparently, the defense witnesses tried to convince the jury that the truck had been parked in that position all day long and that the defendant had previously gotten drunk inside his house and went to sleep in the truck after getting into an argument with his mother. The defendant’s girlfriend testified that the car had a faulty switch that caused the radiator to smoke even while the car was off. The jury saw through that drivel and the defendant received the maximum sentence of 4 years and 60 days.

  1. Admissibility of Breath Test Refusal as Consciousness of Guilt

The appellant’s refusal to submit to the breath test was admitted by the trial court into evidence, with no limitation placed on the significance or the weight it was to be given by the jury. Judge Moylan addressed this issue in a lengthy analysis of the legislative and statutory history of C & J §10-309(a)(2). Additional authorities cited were Wyatt v. State, 149 Md. App. 554 (2003), South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916 (1985), McCormick v. State, 211 Md. App. 261 (2013) and the Maryland Pattern Jury Instructions – Cr 4:10.5.

Judge Moylan opined that the appellant’s refusal to submit to a breath alcohol test permitted the State to argue – but did not require the jury to infer – that the appellant’s refusal to take the test evidenced a consciousness of guilt that he was both drunk and had been driving.

  1. Was there a reasonable likelihood that the appellant had been driving?

The remainder of Judge Moylan’s opinion in Harding focused on whether the State had established a reasonable likelihood to permit the jury to consider whether the appellant had been driving. To do this, the Court focused on the Maryland cases of Gore v. State, 74 Md. App. 143 (1988), Atkinson v. State, 331 Md. 199 (1993) and Dukes v. State, 178 Md. App. 38 (2008).

In Gore, the police found a man behind the wheel of a car in the parking lot of a 7-11 store. Mr. Gore was clearly drunk. The issue was whether the facts were legally sufficient to permit a finding that the sleeping man had actually been driving the car. While there was no testimony from the police or any other witnesses that they had seen the car move, that fact could be inferred from circumstantial evidence. That circumstantial evidence was that the officer had felt the hood of the car and the engine still seemed warm to the touch; the keys were in the ignition in the “on” position; the alternator/battery light glowed red; and the gear selector was in the “drive” position.

Atkinson, on the other hand, held that the evidence was not legally sufficient to support a conviction for driving while intoxicated. The appellant in that case was intoxicated and asleep behind the wheel of his vehicle, parked along the side of the road. At issue in Atkinson was whether the appellant was in “actual physical control” of his vehicle. The CoSA determined that these type cases need take into account a number of factors, including: 1) whether or not the vehicle’s engine was running, or if the ignition was in the “on” position; 2) where and in what position the person is found in the vehicle; 3) whether the person is awake or asleep; 4) where the vehicle’s ignition key is located; 5) whether the vehicle’s headlights are on; 6) whether the vehicle is located in the roadway or is legally parked. The Atkinson Court determined that no one factor alone will necessarily be dispositive of whether the defendant was in “actual physical control” of the vehicle. It held that each factor must be considered “with an eye towards whether there was present or imminent exercise of control over the vehicle or whether the vehicle is merely being used as a stationary shelter.”

The main problem with Atkinson, was that the case proceeded on a Not Guilty Statement of Charges and the legal arguments centered on whether or not Atkinson was “in actual physical control” of his vehicle. While TR §21-902 provides that a person may not “drive or attempt to drive” a vehicle while under the influence or impaired by alcohol, drugs or combination thereof, the term “drive” has several meanings, including drive, operate, move, or be in actual physical control of the vehicle. The statement of facts that was read into the record and subsequently argued was void of any facts that indicated that Atkinson “drove, operated or moved” his vehicle. Thus, the appellate court limited its analysis strictly on the meaning of “actual physical control.”

In Dukes v State, by contrast, the Court of Special Appeals held that the evidence was legally sufficient to support a finding that the defendant had been driving the car. Dukes was found asleep in the driver’s seat, with the vehicle keys on the floor mat below the steering wheel. The vehicle was sitting in the travel portion of a road and in a turn lane. The Court pointed out that location was the key factor giving rise to the permitted inference that the defendant had recently driven the car to the location.

In Harding, Judge Moylan indicated that the key factor distinguishing Atkinson from Dukes was that in Atkinson, the defendant’s vehicle was “legally parked on the shoulder of the road” and that the defendant “could well have been sleeping it off.” p. 14. I’m a little concerned that these statements might oversimplify the matter and that defense attorneys will misconstrue them and argue that as long as a vehicle is “legally parked” on the side of the road with the engine turned off that the driver cannot be convicted of DUI. That is not the law and that is not what Atkinson stands for.

First, I’m not sure that a vehicle can be “legally parked” on the shoulder of the road, unless that area is designated for parking. I would argue that it might be legally “stopped on the shoulder” if, for example, it had broken down, had a flat tire or run out of gas, but a driver cannot just pull over onto the shoulder of a highway and “sleep it off.” In fact, the Court in Atkinson addressed that very issue in head note 16:

It is important to bear in mind that a defendant who is not in “actual physical control” of the vehicle at the time of apprehension will not necessarily escape arrest and prosecution for a drunk driving offense. A person may also be convicted under §21-902 if it can be determined beyond a reasonable doubt that before being apprehended he or she has actually driven, operated, or moved the vehicle while under the influence…Thus, our construction of “actual physical control” as permitting motorists to “sleep it off” should not be misconstrued as encouraging motorists to try their luck on the roadways, knowing they can escape arrest by subsequently placing their vehicles “away from the road pavement, outside regular traffic lanes, and…turning off the ignition so that the vehicle’s engine is not running. While we wish to discourage intoxicated individuals from first testing their drunk driving skills before deciding to pull over, this should not prevent us from allowing people too drunk to drive, and prudent enough not to try, to seek shelter in their cars within the parameters we have described above.

In the instant case, had there been evidence to establish that Atkinson had driven prior to his apprehension, he might properly have been convicted – not because of what he was doing when the officer arrived on the scene, but because of what the factfinder could have inferred he had done previously, i.e. actually drive, operate or move his vehicle while intoxicated. While many forms of circumstantial evidence could have led to this conclusion, no such evidence was adduced in Atkinson’s case. There is no evidence that Atkinson did anything but climb into his vehicle, put the keep in the ignition and go to sleep. pp. 32, 33

Again, the holding in Atkinson is limited to its facts. It was an agreed statement of facts and there was nothing in the statement that allowed the Court to reach a reasonable inference that Atkinson had driven prior to being found in his car. As such, the CoSA was limited to determining whether the appellant was in “actual physical control of his vehicle. The more typical “Atkinson” case would be a situation in which an intoxicated person came out of a bar or restaurant, realized that he or she had had too much to drink, and elected to use their vehicle as a shelter or waiting area until they had sobered up, without moving driving or moving their vehicle. In that scenario, they more than likely wouldn’t be convicted.

When coming upon an intoxicated individual in a vehicle, law enforcement should take note of the surrounding circumstances; check to see if the engine is warm; where are the keys; are there any empty alcohol containers in or around the vehicle; if so, do they appear “fresh” or recently consumed; ask the suspect where he is coming from and where he is going; when he’d had his last drink; and anything else that will help you establish that he had driven drunk to that location. Make sure to document all those findings in your report.


As usual, please consult with your local State’s Attorney’s Office for any legal advice related to this subject.