Maryland DUI Lawyer Blog
In legislation enacted last year, the legislature amended statutes governing breath testing in Maryland, effective October 1, 2022. Previously, relevant statutes delegated to the toxicologist under the Post-Mortem Examiner’s Commission in Baltimore, the responsibility for approving equipment used for blood and breath testing in Maryland. The new law transfers that authority to “the toxicologist in the Department of State Police Forensic Sciences Division.”
At this point it is unknown how this shift will affect the admissibility of breath tests conducted after October 1, 2022, as these cases are just starting to get litigated. The toxicologist under the Post-Mortem Examiner’s Commission drafted regulations and procedures governing the approval of equipment for use in breath and blood testing in DUI cases. For tests occurring between October 1 and December 31, 2022, the new toxicologist simply wrote a letter extending the approvals previously issued by the former toxicologist. Whether this passes muster in court is yet to be determined. Arguably, once the legislature made the change, the new toxicologist could do anything except that as the legislature determined that the former toxicologist in charge of testing not make those decisions. Rather, the new toxicologist needs to develop procedures the assure the reliability and accuracy of breath and blood testing. Time will tell whether the new toxicologist will take the independent action to approve the equipment being used the legislature arguably requires.
For now, it is critical that defense lawyers request all available discovery from the State to evaluate whether the State has complied with the new laws requiring the toxicologist in the Department of State Police Forensic Sciences division to approve the equipment used in breath and blood testing in Maryland.
If you are charged with DUI in Maryland, call 301-345-0122 for a free consultation by phone, zoom or in person.