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ERIC TURKILL WASHINGTON v. STATE of MARYLAND
COURT OF SPECIAL APPEALS OF MARYLAND
January 28, 2010, Filed

Appellant told the officer that he had had two beers.  A second patrol officer, who responded as backup, administered one of the three standard field sobriety tests. Upon exiting his vehicle, appellant had a strong odor of alcohol on his breath, his speech was very slurred, he was swaying, using the car for balance, and his steps were uncoordinated.  He claimed that he had taken an Oxycodone six hours earlier, that he walked with a cane and that he did not feel comfortable performing the walk indicating a level of alcohol intoxication that was way over the limit.  Appellant was arrested and took an alcohol breath test at the police station, resulting in a blood alcohol content reading of .25 more than three times the legal threshold of .08.  Appellant was convicted in the Circuit Court for Anne Arundel County of driving while under the influence of alcohol and driving while under the influence of alcohol per se, and sentenced to consecutive terms of imprisonment.  He appealed his consecutive sentences.

Issue:

• Whether the imposition of consecutive sentences upon conviction of DUI and DUI per se is permitted?  Whether DUI per se sentence should have been merged into the DUI sentence?

The Court held that the two are separate offenses under the required evidence test because each has "an element not found in the other." In support of that interpretation,  the Court reviewed legislative history leading to enactment of the DUI per se provision in 1995, including materials from legislative committees, the Task Force on Drunk and Drugged Driving, and Mothers Against Drunk Driving (MADD). The Court concluded that the legislative history established that DUI per se was enacted as a separate offense in the statutory scheme to permit an intoxicated driving conviction based solely on blood alcohol content, as an alternative to the fact finder having to rely on the more subjective behavioral evidence necessary to prove intoxicated driving.  Because the two offenses are separate, the trial court was not required to merge appellant's convictions for DUI and DUI per se. Indeed, appellant's trial counsel acknowledged as much at sentencing, stating that "Count 3, the 21-902(a)(2), and the 21-902(a)(1), do not merge. They are distinct charges with separate elements." Nevertheless, whether appellant's DUI per se sentence must be merged into his DUI sentence is an analytically separate question. That is because, even when two offenses are separate under the required evidence test, in some circumstances multiple punishments may not be permitted in order to avoid a violation of the constitutional guarantee against double jeopardy.  In the instant case, we agree with appellant that his sentences for DUI and DUI per se should have been merged under the rule of lenity. Appellant's position presents an issue of first impression, because we have found no reported case addressing the propriety of consecutive sentences for DUI and DUI per se convictions arising out of a single act of driving.  In this case, the issue of sentencing merger is squarely presented by the trial court's imposition of consecutive sentences on the DUI conviction and the DUI per se conviction. We hold that, when a defendant is convicted of both DUI and DUI per se, arising out of the same act of driving, the lesser sentence, in this case the one for DUI per se, merges into the greater sentence, in this case the sentence for DUI, under the rule of lenity. Therefore, we shall vacate the DUI per se sentence imposed on appellant.

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