New problems with breath test operators in Maryland after October 1, 2022

It has recently come to our attention that the approval required for breath test operators in Maryland changed with the below statute, Courts and Judicial Proceedings Article, § 10-304, effective on October 1, 2022.

“Qualified person” means a person who has received training in the use of the equipment in a training program approved by the toxicologist in the Department of State Police Forensic Sciences Division and who is either a police officer, a police employee, or a person authorized by the toxicologist in the Department of State Police Forensic Sciences Division.

Only a “qualified person” is allowed to conduct a breathalyzer test in Maryland.

Before October 1, the statute required breath test operators to have taken a training class approved by the toxicologist under the Post Mortem Examiner’s Commission, i.e. the Medical Examiner in Baltimore.  What this means is that arguably, on October 1, 2022, all breath test operators trained in a program approved by the prior toxicologists needed to renew their certifications.  In the absence of proof that that was done, and where the breath test occurred after October 1, 2022, it is highly unlikely the breath test operator could be found to be a “qualified person” as defined by the statute.

As a result, unless the State can prove the breath test operator was approved by the toxicologist after October 1, 2022, the breath test conducted by this person should be excluded from evidence.


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