             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-
