Meanor v. State

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HEADNOTE Meanor v. State , No. 2117, September Term, 1999. DRIVING WHILE INTOXICATED PER SE - DR-15 ADVICE OF RIGHTS FORM IGNITION INTERLOCK SYSTEM PROGRAM - When a Defendant is charged with violating §21-902 generally, driving while intoxicated per se is a lesser included offense. The 1994 DR-15 Advice of Rights form satisfies the requirements of Transportation Article, §16-205.1(b)(2)(iii). Statute does not require explanation of eligibility for the Ignition Interlock System Program. This program is available whether breathalyzer is taken or refused, therefore appellant suffered no prejudice. REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2117 September Term, 1999 GLENN LYDELL MEANOR v. STATE OF MARYLAND Wenner, Krauser, Fischer, Robert F., (retired, specially assigned) JJ. Opinion by Wenner, J. Filed: September 7, 2000 Appellant, Glenn Lydell Meanor, was convicted by a jury in the Circuit Court for Howard County of driving while intoxicated, driving under the influence of alcohol, and failure to obey a traffic control device, and was sentenced to a term of 90 days, of supervised which all probation was with suspended special in favor of conditions. two On years appeal, appellant presents us with the following questions: 1. Did the trial court err in instructing the jury, If you find that at the time of testing, the Defendant had .10 percent or more by weight of alcohol in the blood, the Defendant was intoxicated, where Mr. Meanor was not charged with the offense of driving while intoxicated per se? 2. Did the trial court err in denying the motion to suppress the results of the breath test? Finding no error, we shall affirm the judgments of the circuit court. Facts On 11 February 1999, appellant and a friend, Charles Dixon, enjoyed numerous alcoholic beverages nightclub in Columbia, Maryland. at about because 2:30 a.m., appellant it had was had the Silver Shadows As they were leaving the club decided too at that much to Dixon would drink. drive Shortly thereafter, Officer Mui of the Howard County Police Department observed a car being driven erratically on Route 29, and stopped -2it. Both Officer Mui and Sgt. Christis, who arrived on the scene as Officer Mui s back-up, noticed an odor of an alcoholic beverage emanating from Dixon s breath, and that his speech was slurred. field After Dixon had performed rather poorly on several sobriety tests and had blown into the tube, he was arrested, charged with driving while intoxicated, and taken to the police station. several times Before warned leaving appellant not the to scene, drive, the and officers offered to transport him either to a pay phone or to the police station to call for a ride. In addition, the officers offered to arrange to have the car towed. Appellant insisted on remaining with the car, however, and said that he would use his cellular phone to call for a ride. Although Officer Mui left the scene, Sgt. Christis drove a short distance and pulled off onto the shoulder in order to keep appellant and the car in view. Christis pulled expected, onto appellant. observing the in no traveled more than portion twenty of Just as Sgt. minutes, Route 29 the car driven by Sgt. Christis followed and stopped the car, after that it had crossed over the center line. After appellant had gotten out of the car and performed poorly on several field sobriety tests, he was arrested and Maryland Uniform Complaint and Citation form, for 21-902 issued a violating Driving While Intoxicated & Under Influence Alcohol & -3Under Influence of Drugs and & Drugs & Alcohol & Controlled Dangerous Substance. Not only was appellant offered a breathalyzer test, he was read his rights from a DR-15 Advice of Rights form. Appellant first refused to take the test, but later changed his mind and took the test. The test result was [p]oint one three grams of alcohol per two hundred ten liters of breath. After being convicted by a jury of driving while intoxicated, driving under the influence of alcohol, and failure to obey a traffic control device, appellant was sentenced to a term of ninety intoxicated, days after in sentencing purposes. the the county remaining jail charges for driving were while merged for As we have noted, the term of ninety days was suspended in favor of two years supervised probation with special conditions, and this appeal followed. Discussion The questions with which we are presented questions of first impression in Maryland. appear to be We have not been directed to, nor have we found a reported Maryland case that involves driving while intoxicated per se, or one that involves the failure of the 1994 DR-15 Advice of Rights form to mention the Ignition Interlock System Program. Although there have been several required cases involving the advice to be given -4concerning the consequences of refusing to submit to a chemical test for intoxication, prescribed by §16-205.1 of the Transportation Article, we are concerned only, in the case at hand, with use of the 1994 DR-15 form. We now turn to these issues. I. Driving While Intoxicated Per Se Appellant first contends that, as he was not charged with driving while intoxicated per se, the trial court erred in instructing the jury, If you find that at the time of testing, the defendant had .10% or more by weight of alcohol in the blood, the defendant was intoxicated. We do not agree. Before beginning our discussion, we shall first review the offenses with which appellant was charged. A. As we have noted, appellant was charged with having violated §21-902 of Maryland the Article.1 Transportation Uniform Complaint and In Citation filling form, Sgt. out the Christis circled violation number 33, which read, §21-902 Driving While Intoxicated Drugs, 1 & & Under Drugs & Influence Alcohol & Alcohol Controlled & Under Influence Dangerous of Substance. Unless otherwise noted, all statutory references will be to Md. Code (1977, 1999 Repl. Vol., 1999 Cum. Supp.) Transportation Article. -5According to appellant, violation number 33 does not encompass driving while intoxicated per se. Section 21-902 of the We disagree. Transportation Article is titled Driving while intoxicated, while intoxicated per se, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance, and includes the following four subsections: (a) Driving while intoxicated or intoxicated per se. - (1) A person may not drive or attempt to drive any vehicle while intoxicated. (2) A person may not drive or attempt to drive any vehicle while the person is intoxicated per se. (b) Driving while under the influence of alcohol. - A person may not drive or attempt to drive any vehicle while under the influence of alcohol. (c) Driving while under influence of drugs or drugs and alcohol. - (1) A person may not drive or attempt to drive any vehicle while he is so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that he cannot drive a vehicle safely. ... (d) Driving while under influence of controlled dangerous substance. - A person may not drive or attempt to drive any vehicle while he is under the influence of any controlled dangerous substance, as that term is defined in article 27, § 279 of the Code, if the person is not entitled to use -6the controlled dangerous substance under the laws of this State. According to appellant, although the citation he was issued charged him with violating §§ 21-902(a)(1), (b), (c) and (d), he was not charged with violating § 21-902(a)(2). Appellant insists that driving or attempting to drive any vehicle while the person is intoxicated per se constitutes a separate offense from driving while intoxicated, citation in the section titled: CHARGE. In the State s view, and must be written on the VIOLATION NOT LISTED ABOVE however, the definition of intoxicated per se sets forth an evidentiary standard and does not create a crime distinct from driving while intoxicated; it is the same crime proven by a scientific test of evidence. We agree. The legislative history of §21-902(a)(2) demonstrates that what once was prima facie evidence of intoxication, 2 is now legally intoxicated. Prior to October 1995, §21-902(a)provided Driving while intoxicated. A person may not drive or attempt to drive any vehicle while intoxicated. Courts and Judicial Proceedings Article, §10-307 also provided in relevant part: (e) Prima facie evidence of intoxication. If at the time of testing a person has an 2 §10-307. See Md. Code (1974, 1995 Repl. Vol., 1999 Cum. Supp.) Courts & Judicial Proceedings Article -7alcohol concentration of 0.10 or more, as determined by an analysis of the person s blood or breath, it shall be prima facie evidence that the defendant was driving while intoxicated. In October of 1995, subsection (e) of §10-307 was repealed, and §21-902(a) was amended to read as follows: (a)(1) A person may not drive or attempt to drive any vehicle while intoxicated. (2) A person may not drive or attempt drive any vehicle while the person has alcohol concentration of 0.10 or more measured by grams of alcohol per milliliters of blood or grams of alcohol 210 liters of breath as determined at time of testing. 1995 Md. Laws, Chap. 498. During the to an as 100 per the following term, the General Assembly amended §21-902(a)(2) to read, as it now reads, (2) A person may not drive or attempt to drive any vehicle while the person is intoxicated per se, and enacted §11-127.1 which defines intoxicated per se as having an alcohol concentration at the time of testing of 0.10 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. 1996 Md. Laws, Chap. 652. This 1996 amendment substituted is driving while intoxicated per se for has an alcohol concentration of 0.10 or more as measured by grams of alcohol per 100 millimeters of blood or grams of alcohol per 210 liters of breath as determined at the time of testing. 1995 Md. Laws, Chap. 652. Thus, the -8General Assembly chose to add the language, A person may not drive or attempt to drive while the person is intoxicated per se to §21-902(a) to define a person who was driving a vehicle while intoxicated. The terms driving while intoxicated and intoxicated per se are treated consistently throughout the Transportation Article. For example, §27-101 provides that It is a misdemeanor to violate any of the provisions of the Maryland Vehicle Law ... and refers only to §21-902 (a),(b),(c), and (d). Section 27- 101(k) provides: (k) Violation of §21-902(a). - (1) Except as provided in subsection (q) of this section, any person who is convicted of a violation of any of the provisions of §21-902(a) of this article ( Driving while intoxicated or intoxicated per se ): (i) For a first offense, shall be subject to a fine of not more than $1,000, or imprisonment for not more than 1 year, or both ... (2) For the purpose of second or subsequent offender penalties for violation of §21902(a) of this article provided under this subsection, a prior conviction of §21902(b), (c), or (d) of this article, within 5 years of the conviction for a violation of §21-902(a) of this article, shall be considered a conviction of §21-902(a) of this article. We emphasize that §27-101 refers only to the provisions of §21-902(a) of this article (Driving while intoxicated or -9intoxicated per se), then specifically refers to prior convictions of §21-902(b), (c) or (d) in providing penalties for subsequent convictions of violating §21-902(a). Moreover, the penalties for Driving while intoxicated or intoxicated per se are precisely the same, further indicating that §21-902(a) includes both driving while intoxicated and intoxicated per se. We look now to the violations lodged against appellant in order to determine whether while intoxicated per se. those violations include driving On the Uniform Complaint and Citation issued to appellant, he was simply charged with violating §21902. Section 26-405 provides: Lesser included offenses under §§21-901.1 and 21-902 - If a person is charged with a violation of §21-901.1 of this article (Reckless and negligent driving ) or §21-902 of this article ( Driving while intoxicated, while intoxicated per se, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance ), the court may find him guilty of any lesser included offense under any subsection of the respective section. (Emphasis added.) Moreover, § 26-405 permits one charged only with violating §21902 to be convicted of violating one or more of its subsections. As noted, these subsections include: Driving while intoxicated, while intoxicated per se, under the influence of alcohol, or -10under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance. Although appellant was simply charged with violating §21902, as trial began, the prosecutor said, The State would ask the Court to proceed on §21-902(a) and (b). While the verdict sheet submitted to the jury listed driving while intoxicated and driving while under the influence of intoxicated per se was not listed. was convicted only of driving while alcohol, driving while Accordingly, as appellant intoxicated and driving while under the influence of alcohol, there was no need to refer to §21-902(a) s separate provisions. Appellant relies on Beckwith v. State, 320 Md. 410, 578 A.2d 220 (1990), to persuade us that he was not charged with §21902(a)(2). Beckwith was charged with violating §21-902(a), but convicted of §21-902(b) and the Court of Appeals explained: If the police officer had intended to charge the greater offense of driving while intoxicated so as to embrace the lesser offense of driving while under the influence, number 34 would have specifically covered that situation. The police officer, however, did not circle number 34. Instead, number 35, charging only the greater offense driving while intoxicated was circled, as well as underscored. Under these circumstances, a reasonable defendant would conclude that he was being charged with the greater offense and only the greater offense. -11The charging document expressly and clearly showed how the greater offense of driving while intoxicated was to be charged so that it would include the lesser offense of driving while under the influence. The defendant was not charged in this manner. Instead, the State charged the defendant with driving while intoxicated in a way which clearly appeared to exclude the lesser charge. Id. at 415. Hence, Beckwith s conviction of the lesser charge was reversed. Appellant s reliance on Beckwith is misplaced. As noted, Sgt. Christis circled violation number 33, which includes all of §21-902's driving lesser while included intoxicated offenses. per se was We do not agree excluded. It that was not necessary for the officer to have specified that charge in the section of the citation entitled VIOLATION NOT LISTED ABOVE. We note that if appellant had been specifically charged with violating §21-902(a)(2), driving while intoxicated per se, the State would have been limited to the all or nothing approach described in Insley v. State, 32 Md. App. 46, 48, 358 A.2d 246, 247 (1976) (By specifically charging a defendant with §21-902(a) Driving while intoxicated, the State forwent the right to drop down to a lesser charge, should its proof fail to result in a conviction permitted of the because greater it charge. ) would be The general impractical to charge require is the -12arresting officer to make a roadside determination as to whether a suspected drunk driver is intoxicated or under the influence, that is above or below .10 alcohol concentration. Driving while intoxicated and driving under the influence of alcohol differ only in the grade of proof required to support a conviction, See Thompson v. State, 26 Md. App. 442, 450, 338 A.2d 411 (1975) rev d on other grounds, 278 Md. 41, 359 A.2d 203 (1976). In enacting §21-902(a)(2), the General Assembly provided a method of convicting an accused of driving while intoxicated by a reduced grade of proof . Scientific evidence has been presented that the alcohol concentration in the blood of an accused is 0.10 or more, the State has established that the accused was driving while intoxicated per se. In sum, we hold that when an offender has simply been charged with violating §21-902, the offender may be convicted of violating §21-902 (a), (b), (c) or (d). B. Appellant next contends that instructing the jury as follows: the trial court erred in if you find that at the time of testing, the defendant had a point one zero percent or more by weight of intoxicated. alcohol in the blood, the defendant was As we have just noted, driving while intoxicated -13per se is a lesser included offense under §21-902. The meaning of intoxicated per se is having an alcohol concentration at the time of testing of 0.10 or more ... §11-127.1(a). As the State had presented evidence that appellant s breath test result revealed .13 grams of alcohol per 210 liters of breath, it was, therefore, proper for the jury to be instructed: Now you ve heard evidence in this case that the Defendant s breath was tested for the purposes of determining the alcoholic content of the Defendant s blood. The affect of such results is as follows. If you find that at the time of testing, the Defendant had point one zero percent or more by weight of alcohol in the blood, the defendant was intoxicated. See MARYLAND CRIMINAL PATTERN JURY INSTRUCTION (MCPJI) 4:10.2. The Notes on Use comments following MCPJI Cr 4:10.2 suggest: Use this instruction if the defendant is charged with ... driving while intoxicated and/or driving under the influence of alcohol under Maryland Transportation Code Ann. §21-902 (1992 & Supp. 1996), and the defendant took a blood or breath test. 3 Accordingly, there was no error. II. Appellant also DR-15 Advice of Rights Form urges that the trial court should have suppressed his breath test results because he was not properly 3 See Maryland State Bar Ass n, Inc., Maryland Criminal Pattern Jury Instructions, 4:10.2, at 175 (1997). There is no suggested pattern instruction for driving while intoxicated per se. -14advised of his rights from the form DR-15 used by the arresting officer. Form DR-15 was developed by the Motor Vehicle Administration ( MVA ) for use in giving a driver charged with driving while intoxicated and/or under the influence of alcohol the rights to which he or she is entitled concerning the possible suspension of his or her driver s license for refusal to take a breath test as provided for in §16-205.1(b) of the Transportation Article. Section 16-205.1(b) provides relevant part: (b)(2) Except as provided in subsection (c) of this section, if a police officer stops or detains any person who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while intoxicated ... the police officer shall: (i) Detain the person; (ii) Request that the person permit a test to be taken; and (iii) Advise the person of the administrative sanctions that shall be imposed for refusal to take the test, including ineligibility for modification of a suspension or issuance of a restrictive license under subsection (n)(1) or (2) of this section, and for test results indicating an alcohol concentration of 0.10 or more at the time of testing. Subsection (n) provides: Modification of suspension. (1) The Administration may modify a suspension under in -15this section or issue a restrictive license if: (i) The licensee did not refuse to take a test; (ii)The licensee has not had a license suspended under this section during the past 5 years; (iii) The licensee has not been convicted under §21-902 of this article during the past five years; and (iv) 1. The licensee is required drive a motor vehicle in the course employment; to of 2. The license is required for the purpose of attending an alcoholic prevention or treatment program; or 3. It finds that the licensee has no alternative means of transportation available to or from the licensee s place of employment and, without the license, the licensee s ability to earn a living would be severely impaired. (2) In addition to the authority to modify a suspension or issue a restrictive license under paragraph (1) or (4) of this subsection, the Administration may modify a suspension under this section or issue a restrictive license, including a restriction that prohibits the licensee from driving or attempting to drive a motor vehicle unless the licensee is a participant in the Ignition Interlock System Program established under §16-404.1 of this title, if: (i) The licensee did not refuse to take a test; (ii) The licensee has not been convicted under §21-902 of this article; and -16(iii) The license is required for the purpose of attending: 1. A noncollegiate educational institution ... or, 2. A regular program at an institution of postsecondary education. (3) If the licensee refused to take a test, the Administration may not modify a suspension under this section or issue a restrictive license except as provided under paragraph (4) of this subsection. (4) In addition to the authority to modify a suspension or issue a restrictive license under paragraph (1) or (2) of this subsection, the Administration may modify a suspension under this section or issue a restrictive license to a licensee who participates in the Ignition Interlock System Program ... for at least 1 year. In the instant case, Sgt. Christis read the following to appellant from the 1994 DR-15 form: You have the right to refuse to submit to the test. Your refusal shall result in an administrative suspension of your Maryland driver s license or your driving privilege if you are a non-resident. The suspension by the Motor Vehicle Administration shall be 120 days for a first offense and one year for a second or subsequent offense. If you refuse to submit to the test, you will be ineligible for a modification of a suspension or issuance of a restrictive license. (Emphasis added.) Appellant inaccurate, believes because this to be both §16-205.1(b)(2)(iii) inadequate requires that and an accused be advised that, even if the test is refused, MVA may -17modify suspension of the driver s license or issue a restrictive license if the offender agrees to a one year participation in the Ignition Interlock System Program. In other words, appellant believes the Form DR-15 used by the arresting officer should have included an explanation of §16-205.1(n)(4). addition, appellant believes §16-205(n)(4) renders In inaccurate the final emphasized sentence on Form DR-15. After closely reviewing §16-205.1 together with the Form DR15 used by the provisions of 205.1 requires sanctions for arresting officer, (n)(1) and conclude §16-205.1(b)(2)(iii) were satisfied. appellant refusing to the be advised test. It inclusion of subsection (n)(4). of we (2). Since of does that the Section 16- administrative not require the It requires only the inclusion the latter subsections describe options unavailable to one who refuses the breath test, the DR15 form includes such sanctions. As the State correctly points out, the mere possibility that an offender might qualify to participate in the Ignition Interlock System Program is a privilege or a bonus, not a sanction. Our conclusion is supported by §16-205.1's legislative history, as well as the cases that interpreted §16-205.1 prior to being amended in 1993 and 1998. Prior to being amended in 1993, §16-205.1(b)(2)(iii) required an arresting officer to: -18Advise the person of the administrative sanctions that shall be imposed for refusal to take the test and for test results indicating an alcohol concentration of 0.10 or more at the time of testing. In 1993, §16-205.1(b)(2)(iii) was amended to require that an arresting officer: Advise the person of the administrative sanctions that shall be imposed for refusal to take the test, including ineligibility for modification of a suspension or issuance of a restrictive license, and for test results indicating an alcohol concentration of 0.10 or more at the time of testing. (Emphasis added.) 1993 Md. Laws, Chap. 407. This amendment was in response to Hare v. Motor Vehicle Admin., 326 Md. 296, 604 A.2d 914 (1992), and Motor Vehicle Admin. v. Chamberlain, 326 Md. 306, 604 A.2d 919 (1992), in which the Court of Appeals considered the advice intended by the legislature to be given a driver by an arresting officer. In Hare, the appellant insisted that he was required to be advised by the arresting officer that if he refused to take the test, he would not be entitled to modification of suspension of his license or to a restrictive license. Court concluded that [a] driver need 326 Md. at 300. not be told of The every conceivable incentive for taking a chemical test[.] Id. at 304. In Chamberlain, the Court said: -19Aside from §16-205.1(b)(1), the critical provisions of the statute refer to administrative sanctions that shall be imposed; it is only those of which a driver is required to be informed. Mere potential eligibility for modification of suspension or for a restrictive license is not an administrative sanction that shall be imposed. Eligibility for modification of suspension or for a restrictive license becomes reality only if the driver meets the statutory prerequisites, see §16-205.1(m) [now subsection n] and , then, only if the ALJ, in the exercise of discretion, finds modification of suspension or issuance of a restrictive license appropriate. 326 Md. at 318. As the General Assembly chose not to agree, an arresting officer is now required to inform an accused that the refusal to submit to the test will affect the driver s eligibility for a modification of suspension or a restrictive license. When Chapter 526 of the Acts of 1998 was enacted to expand the use of the Ignition Interlock System Program, 205.1(b)(2)(iii) was amended to its current language: Advise the person of the administrative sanction that shall be imposed for refusal to take the test, including ineligibility for modification of a suspension or issuance of a restrictive license under subsection (n)(1) or (2) of this section, and for test results ... (Emphasis added.) §16- -20This amendment arose from changes to subsection (n) concerning the Ignition Interlock System Program. The following emphasized language has been added to subsection (n): (2) In addition to the authority to modify a suspension or issue a restrictive license under paragraph (1) or (4) of this subsection, the Administration may modify a suspension under this section or issue a restrictive license, including a restriction that prohibits the licensee from driving or attempting to drive a motor vehicle unless the licensee is a participant in the Ignition Interlock System Program established under §16-404.1 of this title, if: ... (3) If the licensee refused to take a test, the Administration may not modify a suspension under this section or issue a restrictive license except as provided under paragraph (4) of this subsection. (4) In addition to the authority to modify a suspension or issue a restrictive license under paragraph (1) or (2) of this subsection, the Administration may modify a suspension under this section or issue a restrictive license to a licensee who participates in the Ignition Interlock System Program established under §16-404.1 of this title for at least 1 year. The MVA now has authority to modify a suspension or issue a restrictive license to a driver who has submitted to the test under subsection (n)(1), (2) or (4) and to a driver who has refused the test only under subsection (n)(4). In other words, -21a driver whose license is suspended pursuant to §16-205.1 is eligible for the Ignition Interlock System Program, even if the test is refused. Nevertheless, participation in the Ignition Interlock System Program depends on whether an Administrative Law Judge determines that the offender s participation is appropriate. As we see it, §16-205.1(b)(2)(iii) s affect the Form DR-15 advice. amendment did not An accused must still be advised by an arresting officer of the administrative sanctions for refusing to submit to the test, and not of the full panoply of possibilities left to the discretion of the MVA. The 1998 amendment to §16-205.1(b)(2)(iii) was the result of an amendment to subsection (n). An arresting officer is not required to explain an offender s System Program. eligibility for the Ignition Interlock If that had been the intent of the legislature, §16-205.1(b)(2)(iii) would refer to entire subsection (n), rather than to just two of its portions. We now turn to appellant s assertion that he was not given accurate officer. advice from the Form DR-15 used by the arresting We agree that §16-205.1(n)(4) renders inaccurate the following language: If you refuse to submit to the test, you will for be ineligible a modification of a suspension or -22issuance of a restrictive license, 4 but we do not agree that it requires suppression of the administered to appellant. suffered no prejudice, results of the breath test Under these circumstances, appellant nor does appellant claim that this inaccurate information in any way interfered with his decision to take the breath test. After having been given Form DR-15 advice, appellant first refused to take the breath test, then changed his mind and took it. The administrative sanctions that apply to an offender who refuses to take the breath test offender decides to take the test. apply no longer when the Since the Interlock Ignition System Program is now available to an accused whether or not the test is taken, appellant suffered no prejudice.5 JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT. 4 This would explain why Form DR-15 was amended by the MVA in February of 1999. The new Form DR-15 provides, You will be ineligible for modification of the suspension or issuance of a restrictive license; except in certain circumstances, a test refusal suspension may be modified and a restrictive license issued, if you agree to participate in the Ignition Interlock Program for at least 1 year. We do not agree that this change indicates that this information was required. It merely corrects an inaccurate statement following the enactment of subsection (n)(4). 5 Even had appellant shown prejudice, we question whether he would have been deprived of the process he was due. See Hare, supra, 326 Md. at 303, Darrikhuma v. State, 81 Md. App. 549, 568 A.2d 1150 (1990).

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