Colbert v. State

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2332
September Term, 2014
_________________________
ROBIN VERA COLBERT
v.
STATE OF MARYLAND
_________________________
Woodward,
Wright,
Friedman,
JJ.
_________________________
Opinion by Friedman, J.
_________________________
Filed: July 28, 2016
The sole question in this case is the constitutionality of §16-205.1(c) of the
Transportation (“TR”) Article of the Maryland Code, which allows a warrantless breath or
blood alcohol test of a driver who is (1) “involved in a motor vehicle accident”; that
(2) results in “death … or a life threatening injury”; and (3) that law enforcement has
“reasonable grounds to believe” that the driver is under the influence of drugs or alcohol.
TR §16-205.1(c). If the law is constitutional, then Colbert’s conviction stands. If the law
is unconstitutional, her conviction must be reversed. Because we find that this law is
precisely the kind envisioned by Justice Kennedy in his controlling concurrence to
Missouri v. McNeeley, 569 U.S. ----, 133 S. Ct. 1552 (2013), we find that the law is
constitutional with respect to breath tests and therefore affirm Colbert’s conviction.1
1
After this case was briefed and argued, the United States Supreme Court issued its
Opinion in Birchfield v. North Dakota, in which it approved of a per se rule allowing
warrantless breath (but not blood) tests incident to drunk driving arrests. 579 U.S. ----, 136
S. Ct. 2160, 2185 (2016) (“Because breath tests are significantly less intrusive than blood
tests and in most cases amply serve law enforcement interests, we conclude that a breath
test, but not a blood test, may be administered as a search incident to a lawful arrest for
drunk driving.”). While not controlling of the instant case, Birchfield compels us to add
two caveats to our decision.
First, Birchfield analyzed a different exception to the warrant requirement than we
are concerned with here. In Birchfield, the Supreme Court analyzed the exception
pertaining to searches incident to arrest. Although at the motions hearing there was a
dispute about whether Colbert was under arrest at the time she was subjected to the breath
test, that issue was not resolved below, and we cannot reach it on appeal. Instead, the parties
have argued and we address this case solely pursuant to the exigent circumstances
exception to the warrant requirement.
Second, Birchfield places great emphasis on a distinction it draws between the
bodily intrusion involved in a breath test and that involved in a blood test. Birchfield, 579
U.S. ----, 136 S. Ct. at 2176-78. We take no position on the constitutionality of the
administration of a blood alcohol test pursuant to TR §16-205.1(c).
FACTS
Robin Vera Colbert was driving a grey Nissan along Route 50. She took an exit
ramp toward Ritchie Highway but missed and ended up on the Baltimore & Annapolis
(“B&A”) Bicycle Trail instead. There she struck two cyclists from behind: Katie Pohler
and Todd Green. Bystanders called 911 and applied pressure to a bleeding wound to
Pohler’s neck. Paramedics arrived quickly and summoned helicopters to transport Pohler
and Green to Shock Trauma. Later Pohler would be diagnosed as suffering from a broken
fibula, ulna, collarbone, shoulder blade, and vertebrae. She also suffered a lacerated carotid
artery and a crushed trachea.
When Officer Eric Trumbauer of the Anne Arundel County Police Department
arrived at the scene, Colbert identified herself as the driver of the grey Nissan. Officer
Trumbauer smelled alcohol from Colbert, noted that she was slurring her speech and was
unable to keep her balance. Officer Trumbauer performed a field sobriety test on Colbert,
which she failed. Officer Trumbauer then instructed Corporal Doyle to take Colbert to the
Eastern District Police Station for a breath test, which resulted in a reading of .15 blood-
alcohol content, well above the legal limit of .08.
Colbert was charged with eleven criminal counts related to the incident. Colbert
moved to suppress the breath test results because they had been obtained without a warrant.
After the trial court denied that motion, Colbert proceeded by way of a Not Guilty Agreed
Statement of Facts as to two of the counts. She was found guilty of those two counts and
the State nolle prossed the remaining counts. The two counts on which Colbert was
-2-
convicted were merged for sentencing and the trial court sentenced Colbert to three years
incarceration with all but eighteen months suspended and five years of supervised
probation. This appeal followed.
ANALYSIS
The Fourth Amendment to the U.S. Constitution provides that
[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const., Amend. IV. Compelled breath and blood alcohol tests are searches and are
thus subject to a Fourth Amendment analysis. Schmerber v. California, 384 U.S. 757
(1966). In Schmerber, however, the U.S. Supreme Court affirmed a warrantless blood test
of an individual arrested for driving under the influence of alcohol, reasoning that the
natural metabolization of alcohol in the bloodstream creates an exigency justifying an
exception to the warrant requirement. More recently, courts split on the question of
“whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency
that suffices on its own to justify an exception to the warrant requirement.” McNeely, 569
U.S. at ----, 133 S. Ct. at 1558. In trying to resolve that split, the Supreme Court, as it so
often does, fractured, leaving readers to puzzle out the meaning of the various Opinions.
Justice Sotomayor wrote for a five-judge majority of the Court (Scalia, Kennedy,
Ginsburg, Sotomayor, and Kagan, JJ), holding that the metabolization of the alcohol in the
bloodstream does not create an automatic exception to the warrant requirement. McNeeley,
-3-
569 U.S. at ----, 133 S. Ct. at 1559. Her majority fell apart, however, when she suggested
that each case must be considered on its individual facts to determine whether a warrant
was required. Justice Kennedy wrote a separate concurrence, in which he took the position
that States and local governments may define categories of cases in which warrants are not
required:
The repeated insistence in Part III[ 2 ] that every case be
determined by its own circumstances is correct, of course, as a
general proposition; yet it ought not to be interpreted to
indicate this question is not susceptible of rules and guidelines
that can give important, practical instruction to arresting
officers, instruction that in any number of instances would
allow a warrantless blood test in order to preserve the critical
evidence. States and other governmental entities which enforce
the driving laws can adopt rules, procedures, and protocols that
meet the requirements of the Fourth Amendment and give
helpful guidance to law enforcement officials.
McNeely, 569 U.S. at ----, 133 S. Ct. at 1568-69 (Kennedy, J., concurring). Pursuant to the
so-called Marks rule governing the interpretation of plurality opinions, Justice Kennedy’s
concurrence states the governing rule of decision.3 Therefore, we read McNeely as holding
2
“Part III” refers to a section of Justice Sotomayor’s opinion that commanded the
support of only four justices and which Justice Kennedy declined to join.
3
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court
decides a case and no single rationale explaining the result enjoys the assent of five Justices,
‘the holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds’”).
-4-
that state and local governments may develop appropriate per se rules to help law
enforcement to decide when warrants will be required.4
In our judgment, TR §16-205.1(c) is precisely the type of per se rule that Justice
Kennedy was contemplating in his McNeely concurrence. Moreover, by utilizing a three-
part test, TR §16-205.1(c), helps law enforcement identify a category of cases in which it
is particularly reasonable to dispense with the warrant requirement. First, there must have
already been a “motor vehicle accident,” which eliminates the routine sobriety checkpoint
type cases at issue in McNeely. Second, the accident must have caused “death … or a life
threatening injury.” This requirement limits the warrant exception to the most serious
cases, in which the attention of law enforcement and first responders will necessarily be
divided between a variety of critical tasks, including providing medical attention to the
victim(s), crowd control, traffic control, detaining a suspect, investigation, and collecting
evidence. In such a circumstance, we cannot fault the General Assembly for assigning a
lower priority to swiftly obtaining a warrant before the evidence metabolizes. Third, there
must be “reasonable grounds to believe” that the driver is under the influence of alcohol,
which assures that this exception won’t be used on a generalized basis, but only when law
4
Although we believe ourselves bound by the Marks rule to follow Justice
Kennedy’s concurrence, we also believe that Justice Sotomayor and the members of her
plurality would also approve of the constitutionality of TR §16-205.1(c). See McNeely, 569
U.S. at ---- n.9, 133 S. Ct. at 1566 n.9 (citing, with apparent approval, State statutes
“plac[ing] significant restrictions on when police officers may obtain a blood sample
despite a suspect’s refusal (often limiting testing to cases involving an accident resulting
in death or serious bodily injury)” and citing as an example, among others, Maryland’s TR
§16-205.1(c).
-5-
enforcement has an articulable suspicion that the defendant is under the influence of drugs
or alcohol. Together, these three factors identify an appropriate category of cases in which
it is reasonable to automatically dispense with the warrant requirement. We hold, therefore,
that TR §16-205.1(c) is constitutional.
We also hold, if there was any doubt, that the trial court did not abuse its discretion
in finding that, at the time of the accident, all three conditions of TR §16-205.1(c) were
satisfied: there had been a motor vehicle accident, the victim had suffered a life threatening
injury,5 and Officer Trumbauer had reasonable grounds to believe that Colbert was under
the influence of alcohol. Thus, the statute applied, and it was appropriate to require Colbert
to submit to a breath test without need for a warrant.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
5
We note that at the hearing, Colbert contested whether the victims objectively
satisfied the standard of having suffered a “life threatening injury.” We don’t think that is
the right question. A law enforcement officer, in the field, in stressful circumstances,
should not be held to the same standard of diagnosis as a medical professional. Rather, the
correct question is whether the officer had a reasonable belief that the victim had suffered
a “life threatening injury.” Given Pohler’s blood loss, we don’t think it is possible to think
otherwise.
-6-