PER CURIAM.
On September 3, 1998, petitioner, Mariellen Lowry, was pulled over by Officer Douglass F. Catherman, of the Howard County Police Department, and charged generally with “driving while intoxicated” and related charges.1 At the police station, after the traffic stop, petitioner consented to a breath test for alcohol concentration and made several attempts, all but one of which were unsuccessful, to provide samples which could be analyzed by to the Howard County Police.2 In a bench trial before the District Court of Maryland, sitting in Howard County, petitioner was convicted of the lesser charge of “driving under the influence of alcohol” and the remaining traffic offenses.
Petitioner appealed to the Circuit Court for Howard County. Petitioner argued, in a motion to that court, that once she consented to the administration of a test for alcohol concentration and the breath test did not provide a percentage reading, [360] the State had a mandatory duty, upon her request, to administer a blood test to determine alcohol concentration, and the State’s failure to administer the blood test warranted, at the very least, a missing evidence instruction to the jury. The Circuit Court denied the request for the instruction, but did allow defense counsel to argue during closing arguments that because the State failed to produce a test result in evidence, an inference could be made that if the test had produced results, those results would have been favorable to petitioner. The jury convicted her of “driving under the influence of alcohol” and failure to display a registration card on demand.3 Petitioner presented two questions in her Petition for Certio-rari4:
I. Does Maryland’s implied consent statute, Transportation Article [section] 16-205.1, impose a mandatory duty upon officers to obtain a test for alcohol concentration when a detained person consents to the taking of a test?
II. If the court finds a duty exists, what is the appropriate remedy when an officer fails to obtain an evidentiary test for alcohol concentration?
We shall answer the second question, assuming that a duty exists, and hold that the appropriate remedy, in that event, would be the remedy afforded by the trial court in this case — permitting petitioner to argue appropriate inferences to the jury. It is, therefore, not necessary to address the first question. The appropriate remedy, under the circumstances here present, would be to allow defense counsel to argue an inference that had a blood test been subsequently adminis[361] tered, its results would have been favorable to petitioner. Defense counsel was afforded the opportunity, during closing argument, to argue an inference that had a blood test been administered, its results would have been favorable to petitioner. That is all to which she was entitled.
I. Facts
Petitioner testified5 that between 7:00 and 8:30 p.m. on September 3, 1998, she attended a wine and cheese reception in the office building in which she works. She further testified that at this reception she drank two glasses of Chardonnay. At approximately 8:30 p.m., she left the reception and went upstairs to her office in order to prepare for a contract presentation she was planning to give the following morning. She worked in her office until approximately 10:15 p.m. and was in her car driving home by 10:25 p.m. She testified that she was very tired from a long day at work and even tried to stop for a cup of coffee but the store was closed. At some point while driving home, she was utilizing her cellular telephone to talk with her husband. The phone disconnected and she was attempting to redial her husband’s telephone number when she looked into her rearview mirror and saw a police car with its flashing lights behind her. She initially thought that the officer was trying to pass her, but then realized that he wanted her to stop. She pulled over to the side of the road, put her car in park, and turned on her emergency flashers.
Officer Catherman testified that at approximately 11:15 p.m. while on the ramp from Route 108 to eastbound Route 32, he observed Ms. Lowry’s motor vehicle “swerve, crooked to the right, crossing the right side lane marker, the painted lane marker by a half a vehicle width. The vehicle then quickly swerved back into the center of the lane.” Officer Catherman then initiated his emergency lighting equipment and siren on [362] his police vehicle. The two vehicles traveled at approximately 50 miles per hour for another 0.2 miles before petitioner pulled over to the side of the road, put the car in park and turned on her four-way flashers.
Officer Catherman testified that when he approached the vehicle, the driver’s window was rolled down and he “detected a strong fruity odor of an alcoholic beverage emitting from the car, from the driver’s window. [He] observed her eyes were bloodshot and watery.” When he asked petitioner for her driver’s license and registration, petitioner provided him with her license, however, she could not locate the vehicle’s registration. He “then asked her about the smell of the alcoholic beverage in her vehicle,” to which she replied “that she had not been drinking, she was just very tired.” Officer Cather-man also noted that petitioner’s speech was “slow and slurred.” At this point, he asked petitioner to exit her motor vehicle to perform several standardized field sobriety tests. Officer Catherman administered three field sobriety tests6 and subsequently informed petitioner that her performance on these tests was consistent with the presence of alcohol in the body. He further testified that petitioner responded by stating “okay, I’ll tell you the truth, I’ve had two drinks, but I’m really just tired.” At this point he determined that he had probable cause to place petitioner under arrest and had her transported to the Howard County Southern District Police Station. He further testified that her demeanor from the time of initial contact until she took the breath test was polite and cooperative.
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PER CURIAM.
On September 3, 1998, petitioner, Mariellen Lowry, was pulled over by Officer Douglass F. Catherman, of the Howard County Police Department, and charged generally with “driving while intoxicated” and related charges.1 At the police station, after the traffic stop, petitioner consented to a breath test for alcohol concentration and made several attempts, all but one of which were unsuccessful, to provide samples which could be analyzed by to the Howard County Police.2 In a bench trial before the District Court of Maryland, sitting in Howard County, petitioner was convicted of the lesser charge of “driving under the influence of alcohol” and the remaining traffic offenses.
Petitioner appealed to the Circuit Court for Howard County. Petitioner argued, in a motion to that court, that once she consented to the administration of a test for alcohol concentration and the breath test did not provide a percentage reading, [360] the State had a mandatory duty, upon her request, to administer a blood test to determine alcohol concentration, and the State’s failure to administer the blood test warranted, at the very least, a missing evidence instruction to the jury. The Circuit Court denied the request for the instruction, but did allow defense counsel to argue during closing arguments that because the State failed to produce a test result in evidence, an inference could be made that if the test had produced results, those results would have been favorable to petitioner. The jury convicted her of “driving under the influence of alcohol” and failure to display a registration card on demand.3 Petitioner presented two questions in her Petition for Certio-rari4:
I. Does Maryland’s implied consent statute, Transportation Article [section] 16-205.1, impose a mandatory duty upon officers to obtain a test for alcohol concentration when a detained person consents to the taking of a test?
II. If the court finds a duty exists, what is the appropriate remedy when an officer fails to obtain an evidentiary test for alcohol concentration?
We shall answer the second question, assuming that a duty exists, and hold that the appropriate remedy, in that event, would be the remedy afforded by the trial court in this case — permitting petitioner to argue appropriate inferences to the jury. It is, therefore, not necessary to address the first question. The appropriate remedy, under the circumstances here present, would be to allow defense counsel to argue an inference that had a blood test been subsequently adminis[361] tered, its results would have been favorable to petitioner. Defense counsel was afforded the opportunity, during closing argument, to argue an inference that had a blood test been administered, its results would have been favorable to petitioner. That is all to which she was entitled.
I. Facts
Petitioner testified5 that between 7:00 and 8:30 p.m. on September 3, 1998, she attended a wine and cheese reception in the office building in which she works. She further testified that at this reception she drank two glasses of Chardonnay. At approximately 8:30 p.m., she left the reception and went upstairs to her office in order to prepare for a contract presentation she was planning to give the following morning. She worked in her office until approximately 10:15 p.m. and was in her car driving home by 10:25 p.m. She testified that she was very tired from a long day at work and even tried to stop for a cup of coffee but the store was closed. At some point while driving home, she was utilizing her cellular telephone to talk with her husband. The phone disconnected and she was attempting to redial her husband’s telephone number when she looked into her rearview mirror and saw a police car with its flashing lights behind her. She initially thought that the officer was trying to pass her, but then realized that he wanted her to stop. She pulled over to the side of the road, put her car in park, and turned on her emergency flashers.
Officer Catherman testified that at approximately 11:15 p.m. while on the ramp from Route 108 to eastbound Route 32, he observed Ms. Lowry’s motor vehicle “swerve, crooked to the right, crossing the right side lane marker, the painted lane marker by a half a vehicle width. The vehicle then quickly swerved back into the center of the lane.” Officer Catherman then initiated his emergency lighting equipment and siren on [362] his police vehicle. The two vehicles traveled at approximately 50 miles per hour for another 0.2 miles before petitioner pulled over to the side of the road, put the car in park and turned on her four-way flashers.
Officer Catherman testified that when he approached the vehicle, the driver’s window was rolled down and he “detected a strong fruity odor of an alcoholic beverage emitting from the car, from the driver’s window. [He] observed her eyes were bloodshot and watery.” When he asked petitioner for her driver’s license and registration, petitioner provided him with her license, however, she could not locate the vehicle’s registration. He “then asked her about the smell of the alcoholic beverage in her vehicle,” to which she replied “that she had not been drinking, she was just very tired.” Officer Cather-man also noted that petitioner’s speech was “slow and slurred.” At this point, he asked petitioner to exit her motor vehicle to perform several standardized field sobriety tests. Officer Catherman administered three field sobriety tests6 and subsequently informed petitioner that her performance on these tests was consistent with the presence of alcohol in the body. He further testified that petitioner responded by stating “okay, I’ll tell you the truth, I’ve had two drinks, but I’m really just tired.” At this point he determined that he had probable cause to place petitioner under arrest and had her transported to the Howard County Southern District Police Station. He further testified that her demeanor from the time of initial contact until she took the breath test was polite and cooperative.
At the police station, Officer Karen Slack advised petitioner of her rights pursuant to Maryland Code (1974, 1998 Repl. [363] Vol., 2000 Cum.Supp.), section 10-309(a) of the Courts and Judicial Proceedings Article and section 16-205.1(b) of the Transportation Article7 to submit to or refuse to submit to a test to determine alcohol concentration.8 She elected to submit to the Breathalyzer test. Sergeant Mitchell, a State-certified toxicologist, administered the initial test at approximately 12:25 a.m. on September 4, 19989 by utilizing an Intoximeter 3000. As Sergeant Mitchell testified, under the regulations of the toxicologist for the State of Maryland, a test actually consists of two breath samples in order to compare the samples to ensure that the instrument is in proper working order. See Regulations of the Toxicologist Post Mortem Examiners Commission State of Maryland Regarding Tests of Breath and Blood far Alcohol (October 1, 1995) at 13-15.10 Petitioner’s first sample taken during the first test indicated a reading of 0.173, but her second sample in the first test read “insufficient breath.”11 Starting at approximately 12:44 a.m. [364] on September 4, 1998, Sergeant Mitchell administered the sampling procedure two more times and on each occasion the device read “interfering substance.”12 Petitioner testified that, at this point in time, she requested a blood test to prove that she was not under the influence of alcohol.13 Both Officer Catherman and Sergeant Mitchell testified that they did not recall her requesting a blood test.
Officer Catherman arrested and charged petitioner with “driving while intoxicated” on the basis of his prior observations of both her driving and her field sobriety tests. Both Officer Catherman and Sergeant Mitchell testified on direct examination that petitioner became upset and argumentative when she was told that she was being charged despite the absence of a result stated in percentages from the Intoxime-ter. When asked on direct examination whether petitioner made any statements to him as he was issuing her the citations, Officer Catherman testified, without any objection from petitioner:14
Yes, she did. She stated that she had only had two glasses of wine. As I was issuing the tickets, she stated to me, what you going to charge me? These results are not admissible in Court. She stated to me, don’t you think you should be out getting some real criminals? You ought to [365] get a new hobby. The result of 1 7 is not admissible in Court.
In a bench trial before the District Court of Maryland sitting in Howard County, petitioner argued that, pursuant to Maryland Code (1977, 1999 Repl.Vol., 2000 Cum.Supp.), section 16-205.1 of the Transportation Article and Maryland Code (1974, 1998 Repl.Vol., 2000 Cum.Supp.), sections 10-302 through 10-309 of the Courts and Judicial Proceedings Article,15 the State had a mandatory statutory duty to provide a test for alcohol concentration to petitioner. Petitioner further argued that pursuant to State v. Werkheiser, 299 Md. 529, 474 A.2d 898 (1984), she should be allowed an inference at trial that had a blood test for alcohol concentration been administered the result thereof would have been favorable to petitioner. After an argument by the State, the District Court granted petitioner’s request that a Werkheiser inference be made. Petitioner was, nonetheless, convicted of driving under the influence of alcohol, as well as failure to obey a proper traffic control device and failure to display a registration card on demand.
Petitioner appealed to the Circuit Court for Howard County. From the entries transcribed in the court docket it appears that petitioner submitted a motion requesting a Werkheiser inference on August 11, 1999, which was never forwarded to a circuit court judge. An almost identical motion was filed on December 21, 1999. Neither written motion included any request for an instruction as to the inference. It appears that rather than rule on the motion prior to trial, the trial judge waited until the close of all evidence to rule. At trial, on March 16, 2000, defense counsel argued for the first time that, in addition to being permitted to argue a Werkheiser inference to the jury, the inference should also be included as a jury [366] instruction. The jury instruction proposed by petitioner provided in relevant part:
When a person is detained on suspicion of driving while under the influence of alcohol, Maryland law places a mandatory duty upon the detaining officer to request the person submit to a test to determine alcohol concentration. This person can agree to submit to a test or refuse. (Transportation Article § 16-205.1). When a person consents to the administration of a test to determine alcohol concentration, Maryland law requires that the test to be administered shall be a test of breath unless the person is unconscious or otherwise incapable of refusing to take a test to determine alcohol concentration, or the person has injuries which require their removal to a medical facility, or the equipment to administer the breath test is unavailable. Under those circumstances Maryland law provides that a blood test shall be administered. (Courts & Judicial Proceedings § 10-305).
Maryland law places a mandatory duty upon a police officer to administer a test for alcohol concentration when a person consents to such a test. If the officer fails to comply with that statutory duty the courts in this state have held the person arrested is entitled to an inference at trial that had the test been administered, the results of that test would have been favorable to that person. ([State v. Werkheiser], 299 Md. 529, 474 A.2d 898 (19[8]4)).[16]
The trial judge denied the motion, stating:
All right. The Court has considered this issue and read the State versus Werkhei[s]er case at 299 Maryland 529, [474 A.2d 898] 1984, case. The way the Court reads the situation is that the conviction can be sustained without a test if there is other competent evidence with other appro-[367] priative evidence, if there is any competent evidence which is sufficient to establish the offense in the case and the Court does not believe that an instruction, such as the one requested by the Defendant is either necessary or appropriate in this case. The Defendant can certainly argue that defects in the test and the procedure that was utilized here and the lack of confirmatory testing that would have [in ] their view exonerated the Defendant, and that certainly is an argument that can be made, but the Court does not believe the instruction ... by the Defense is appropriate and the Court will therefore, not give the bracketed part of pages 10 and ll.[17] [Emphasis added.]
During closing argument, defense counsel was given the opportunity to argue to the jury that petitioner should have been given a blood test, implying that, had it been given, it would have proven her innocence. He argued:
Under Maryland law, the test to administer, at no cost to you, shall be the test of breath, however, a test of blood shall be administered if the equipment for administering the breath test is not available. That’s the law.... Now, what bothers me most in this case is when a person is taken into custody and they lose their liberty, and we allow the police to do that because we have laws, she is taken — she is arrested — she can’t say I want to go get a blood test or anything like that kind of stuff. She is in custody. She is handcuffed or whatever and down at the police station. She is taken down there and she goes and blows into a breath machine one time and remember what the police [sergeant] said, sitting back there, he said, hey, they’re only supposed to take it one time. But the police were being nice.... They had her a second time, whoopee, but this — you know, and then she tried it a third time. What was she trying to do? You’re darn right she was trying to give a breath sample, and you’re darn right this machine was malfunction[368] ing, and you’re dam right that the police didn’t follow the law, because what is the law when the machine — when the breath test operation is not available, now, look for the words here, right here in the statute____It says however, a test of blood shall be administered____ But this is very important words, shall, when the mandatory word, shall, comes, let’s make it a level playing field. Let’s make the police do what they are required to do. You take away a person’s liberty and make the police follow — follow their law____I submit, in this particular case, that no one knew what was happening. Police officer says, with certainty, ... in a thousand cases he’s given, he’s never seen one of these, interfering substances. Oh, boy, that sounds like somebody, there’s something about something happening here that I don’t know what happened here, but clearly, no one knew what was happening.... [W]e know that the police didn’t know what to do at that particular point. Read the rale of law. See what they should have done. They should have given her a blood test at that particular point. Now, that’s our defense. And, you know that’s our defense.... I’m going to say to use your common sense. Use your own experiences. Imagine you’re out there, in the middle of the night, and you get arrested for drunk driving, and you try three times to take a Breathalyzer and that thing fails. But by your implications, well, that’s not right, we all know that’s not right. What’s wrong in that? Because she was not given a chance to prove her innocen [c ]e. ... I don’t know what happens to justice, all I know is that my client was denied her right to be able to prove her innocence. [Emphasis added.]
II. Discussion
The controlling statutes are section 16-205.1 of the Transportation Article and section 10-305 of the Courts and Judicial Proceedings Article. We said in State v. Loscomb, 291 Md. 424, 435, 435 A.2d 764, 770 (1981) that “§ 10-302 through § 10-309 and § 16-205.1(c), like their predecessors, are in pari materia. They must be construed harmoniously in order [369] to give full effect to each enactment.” The current statutes are construed similarly; harmoniously. See Hyle v. Motor Vehicle Administration, 348 Md. 143, 149-50, 702 A.2d 760, 763 (1997).
Section 16-205.1 states in relevant part:
§ 16-205.1. Suspension or disqualification for refusal to submit to chemical tests for intoxication.
(a) Definitions; implied consent to chemical test. — (l)(i) In this section, the following words have the meanings indicated.
(iii) “Test” means:
1. A test of a person’s breath or of 1 specimen of a person’s blood to determine alcohol concentration;
(2) Any person who drives or attempts to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State is deemed to have consented, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while intoxicated, while under the influence of alcohol, while so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title.
(b) No compulsion to take chemical test; consequences of refusal. — (1) Except as provided in subsection (c) of this section, a person may not be compelled to take a test____
(2) Except as provided in subsection (c)[18] of this section, if a police officer stops or detains any person who the police [370] officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while intoxicated, while under the influence of alcohol, while so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title, and who is not unconscious or otherwise incapable of refusing to take a test, 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)(l) or (2) of this section, and for test results indicating an alcohol concentration of 0.10 or more at the time of testing.
Section 10-305 provides:
§ 10-305. Same — Type of test administered.
(a) Alcohol content. — The type of test administered to the defendant to determine alcohol concentration shall be the test of breath except that the test of blood shall be the type of test administered if:
(1) The defendant is unconscious or otherwise incapable of refusing to take a test to determine alcohol concentration;
(2) Injuries to the defendant require removal of the defendant to a medical facility; or
(3) The equipment for administering the test of breath is not available.
(b) Drug or controlled dangerous substance content.— The type of specimen obtained from the defendant for the [371] purpose of a test or tests to determine drug or controlled dangerous substance content shall be a blood specimen.
(c) Person incapable of test refusal. — Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of test refusal shall be deemed not to have withdrawn consent.
Arguing for an Inference, not an Instruction, was the Appropriate Remedy
Petitioner contends that the appropriate remedy when the State does not produce an alcohol concentration test result in terms of percentages, as opposed to producing such a result, is for the trial court to give an instruction to the jury stating, as a matter of law, that the accused is entitled to an inference that, had a blood test been administered, the results would have been favorable to petitioner. We disagree.
In Werkheiser, 299 Md. 529, 474 A.2d 898 (1984), we analyzed the same statutory scheme as we do in the case sub judice. In that case, Werkheiser was involved in a single car accident and rendered unconscious. The police officer who arrived on the scene had reasonable grounds to believe that Werkheiser was driving while intoxicated or under the influence of alcohol based on the smell of alcohol on Werkheiser and in his car. An unconscious Werkheiser was transported to a hospital and subsequently charged with a violation of section 21-902(b). The different statutory provision there involved mandated that, under the circumstances then existing, a police officer must procure a sampling of the blood of the driver.19 The police officer failed to direct that a blood test be administered because he was unaware of the statutory requirement, under the facts of that case, that he procure such a test. We held that the provisions of sections 16-205.1(d) and 10-305(b) made such a test mandatory. We held that “the appropriate remedy available ... [under the circumstances present in Werkheiser ] would be to allow an inference that [372] had the test been administered, the result thereof would have been favorable to him, to be weighed by the trier of fact along with all the other evidence presented, including the officer’s reasons for not directing that the test be administered.” Id. at 538, 474 A.2d at 903.
We noted additionally:
However, there is no indication, and the legislature obviously intended none, to suggest that in any prosecution for an alcohol related offense the chemical test is a prerequisite to a prosecution.
Id. at 536, 474 A.2d at 902.
In Werkheiser, quoting favorably from People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975) (en banc), we noted:
“... We quote from [State v.] Reyna, [92 Idaho 669, 448 P.2d 762 (1968) ] and adopt the Idaho Supreme Court’s disposition of this argument:
‘... the right to due process of law does not include the right to be given a blood test in all circumstances. To hold otherwise would be to transform the accused’s right to due process into a power to compel the State to gather in the accused’s behalf what might be exculpatory evi-dence____ [The State] had no obligation to obtain for appellant what he speculates might have been more scientific evidence of sobriety----
Id. at 537-38, 474 A.2d at 903. We agreed with the Colorado Court, stating further: “We ... find the situation analogous to other forms of evidence which the [S]tate may not have available for trial.” Id. at 538, 474 A.2d at 903. We then noted our holding in Eley v. State, 288 Md. 548, 419 A.2d 384 (1980), involving the absence of fingerprint evidence. Quoting from Eley in respect to what may be appropriate when such evidence is absent, we stated “it is not unreasonable to allow the defendant to call attention to [the State’s] failure to do so.” Id. at 538, 474 A.2d at 903.
We then noted that a sufficient remedy was to “allow an inference.” Id. We ultimately held that when a chemical analysis is not offered by the State, it may “attempt to meet [373] its burden of proof with other probative evidence.” Id. at 540, 474 A.2d at 904.
The State, in many circumstances, is compelled to preserve evidence in its possession and to produce it upon proper request and/or to produce it without request if it tends to exculpate a defendant. Generally, it is not required to generate or find evidence favorable to a defendant. The position taken by the petitioner, that the State either conduct a blood test or that the Court instruct the jury that the failure of the State to conduct a blood test leads to an inference that it would be exculpatory, in effect, would impose a burden on the State to generate or find exculpatory evidence. We have not yet placed such a burden on the State under conditions similar to those here present and are unwilling to do so under these circumstances.
We recently had the opportunity to again evaluate the law concerning missing evidence instructions in Maryland in Patterson v. State, 356 Md. 677, 685, 741 A.2d 1119, 1123 (1999).20 In Patterson, the defendant was charged with possession with intent to distribute cocaine found in a jacket in an automobile he was driving. The defense theory of the case was that the jacket belonged to someone else and Patterson claimed that if the jacket was produced and he were to try it on, the jacket would not fit him. The police officers who arrested Patterson had photographed the jacket but did not retain it as evidence. Defense counsel requested that an instruction be given to the jury stating that because the State failed to produce the jacket, “you may decide that the evidence would have been unfavorable to the State.” Id. at 682, 741 A.2d at 1121. The trial court refused to deliver the instruction. Instead the trial judge allowed defense counsel to argue the inference to the jury during closing argument. When considering the weight that should be given to missing evidence we said:
[374] An evidentiary inference, such as a missing evidence or missing witness inference ... is not based on a legal standard but on the individual facts from which inferences can be drawn and, in many instances, several inferences may be made from the same set of facts. A determination as to the presence of such inferences does not normally support a jury instruction. While supported instructions in respect to matters of law are required upon request, instructions as to evidentiary inferences normally are not.
... When evidence is missing, apparently due to the act or omission of one of the parties, an inference that the evidence would have been unfavorable to that party may be appropriate. That is all that is required---- We now further refíne the issue in the case sub judice by holding that, regardless of the evidence, a missing evidence instruction generally need not be given; the failure to give such an instruction is neither error nor an abuse of discretion.
Id. at 685, 688, 741 A.2d at 1123, 1124. We also noted in Patterson that:
Maryland Rule 4-325(c) imposes a requirement that instructions be given in respect to the applicable law in a case. It does not apply to factual matters or inferences of fact.
Id. at 684, 741 A.2d at 1122. Although it was not the holding in the case, we opined that instructions that inferences not be made, might be appropriate where there is no evidentiary support for the inference. Davis v. State, 333 Md. 27, 49, 633 A.2d 867, 879-80 (1993). We quoted from Robinson v. State, 315 Md. 309, 318, 554 A.2d 395, 399 (1989):
Only if, as a matter of law, the unfavorable [or favorable] inference could not have been drawn by the jurors would the trial judge have been authorized to prohibit the prosecutor from posing that same question in argument.
Davis, 333 Md. at 49, 633 A.2d at 878. It might be argued that an instruction to the same effect would not be error under such circumstances. We, however, emphasized that the better practice is to permit the party to argue for the drawing of [375] inferences rather than to have the court instruct the jury. Speaking of inferences, we said:
Where a party raises the missing witness rule during closing argument, its use is just that — an argument.... Furthermore, the opposing side also has an opportunity to refute the argument and counter with reasons why the inference is inappropriate.
In contrast to the argument context is the trial judge’s instruction to the jury. In the latter case, the inference is communicated to the jury as part of the judge’s binding jury instructions, creating the danger that the jury may give the inference undue weight.... A trial judge has discretion to deny a missing witness instruction, leaving the matter to closing arguments, even when the facts would support the inference.
Davis, 333 Md. at 52, 633 A.2d at 879-80; see also Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990).
In accordance with Patterson and Werkheiser, even if the State had a duty to administer a blood test to determine alcohol concentration after the “0.173%,” “insufficient breath,” and “interfering substance” readings were produced by the breath tests, the appropriate remedy to cure the alleged error was to allow an inference to be argued to the jury during closing argument. The circuit court judge informed petitioner that an inference was appropriate and defense counsel had the opportunity to, and did, argue for an inference to the jury during closing argument. That is all to which petitioner was entitled. Accordingly, we affirm the ruling of the Circuit Court for Howard County.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED; COSTS TO BE PAID BY PETITIONER.