Handling Implied Consent and Administrative Per Se Hearings at the Motor Vehicle Administration

MVA Hearing Outline

DEFENDING MARYLAND DUI/DWI CASES OUTLINE
by Leonard R. Stamm
Goldstein & Stamm, P.A.
Capital Office Park
6301 Ivy Lane, Suite 504 – Greenbelt, Maryland 20770
301-345-0122 – (fax) 301-441-4652
lstamm@lstamm.com
www.lstamm.com
Copyright © 2007 – Leonard R. Stamm

The following is an outline of issues that frequently arise at Motor Vehicle Administration (MVA) hearings which are now held by the administrative law judges (ALJs) at the Office of Administrative Hearings (OAH). This outline is limited to driver’s license or privilege suspension hearings arising out of arrests for drunk and drugged driving for refusal to submit to a breath or blood test (known as implied consent or IC) and hearings for drivers who submit to testing but have a test result of .08 or more (known as administrative per se or APS). The penalty for refusal is 120 days for a first offense and one year for any subsequent offense. The penalty for a test result of over .08 but under .15 is a 45 day suspension for a first offense and a 90 day suspension for a subsequent offense. The penalty for a test result of .15 or more is 90 days for a first offense and 180 days for a subsequent offense. Under certain circumstances a licensee may be eligible for a restricted license allowing driving to and from employment, during the course of employment, and to and from an alcohol education or treatment program. In some cases, licensees will only be eligible for a restricted license if they agree to the installation of an interlock device in their car. There is no administrative penalty for having a blood test that is positive for drugs. Litigants should be aware of the applicable statutory and regulatory provisions which may affect these hearings:

Maryland Code Ann., Transp. Art., §§ 11-103.2, 11-127.1, 12-114, 12-201-209, 16-205.1, 16-205.2; Cts. & Jud. Proc. Art., § 10-302 et. seq.; State Govt. Art., § 9-1601 et. seq., 10-201 et. seq.; COMAR 11.11.02; & 03; 28.02.

The lawyer must beware, the Court of Appeals recently handed down an opinion in Motor Vehicle Admin. v. Jones, 380 Md. 164, 844 A.2d 388 (2004), that suggests only issues spelled out in Transp. Art. § 16-205.1(f)(7) may be raised in IC or APS hearings. There are many reasons why the Jones opinion should be strictly limited to its facts (a violation of the two hour rule). These are contained in an article published in the Maryland Criminal Defense Attorneys’ newsletter entitled, Is There Life After Jones? The article is essential reading for the defenses outlined below.

1. IC & APS PRE-HEARING DEFENSES
   1. Failure to properly provide the licensee with driving privileges prior to the hearing.
      1. The officer fails to issue a temporary license by failing to sign in the proper place on the Officer’s Certificate. This requirement is stated in mandatory terms (“shall”) in § 16-205.1(b)(3)(iii). Nonetheless, the licensee may be required to demonstrate prejudice by testifying under oath that they forewent driving during the period when they were without a license. Counsel should advise the licensee not to drive until obtaining a proper temporary license from the MVA. Clients should be advised to go to the Glen Burnie branch of the MVA to obtain the temporary permit. See, Motor Vehicle Admin. v. Shrader, 324 Md. 454, 597 A.2d 939 (1991).
      2. First hearing date is set more than 45 days (including date of arrest) after arrest and MVA fails to issue a temporary license which is effective before or on the 45th day. Dismissal is required pursuant to COMAR Dept. of Transportation Regulation 11.11.03.08.(A) where the driver had requested a hearing within ten days of the issuance of the order of suspension. See, Motor Vehicle Admin. v. Shrader, 324 Md. 454, 597 A.2d 939 (1991).
      3. The MVA or OAH has failed to properly reissue a temporary drivers permit during the pendency of a continued hearing. Sections 16-205.1 (f)(5)(iii) & (v), and (f)(6)(iii) & (v) may require the MVA or OAH to reissue a permit. Shrader requires dismissal where the driver has been prejudiced as a result of the failure of the MVA or OAH to issue a permit.
   2. Notice issue date is less than 15 days before hearing date. Transportation Article, § 12-202 requires 10 days notice before a hearing and § 12-114 provides that when the notice is mailed it is effective on the fifth day after its deposit in the mail.
   3. The officer mailed the sworn statement to the MVA more than 72 hours after arrest. Transportation Article, § 16-205.1(b)(3)(vii).
   4. The order of suspension issued by the officer fails to contain an inception date. The DR-15A form, which contains an order of suspension and temporary driver’s license, as well as the sworn statement of the police officer used to contain a space at the top of the form indicating in red that the officer is required to complete. It says, “ORDER OF SUSPENSION – ISSUE DATE: (MONTH/DAY/YEAR)” Occasionally the officer will leave this space blank. The prior form contained language that said “Must Be Completed.” There should be no action taken because the officer has failed to “[a]cting on behalf of the Motor Vehicle Administration, personally serve an order of suspension on the person.” § 16-205.1(b)(3)(ii). By failing to fill in the date the officer has failed to issue and serve the order of suspension. There is no reason to hold a hearing to decide whether to give effect to the original order of suspension because there is no original order of suspension.

2. OFFICER’S SWORN CERTIFICATE LACKS MATERIAL ELEMENTS (§ 16-205, (a)(2) & (f)(7)). IC & APS.
   1. Police officer.
      1. Limited jurisdiction. County, municipal, park and University of Maryland police have limited territorial jurisdiction. These police officers should recite some factual basis to believe the stop was made in their jurisdiction. Otherwise there is no proof that the individual who made the stop was a police officer. Stevenson v. State, 287 Md. 504, 413 A.2d 1340 (1980); see also, Boston v. Baltimore County Police Department, 357 Md. 393, 744 A.2d 1062 (2000); Md. Ann. Code art. 27, §602B; Md. Code Ann., Educ. §13-201 (University of Maryland Police).
      2. Federal jurisdiction. Maryland contains a number of federal enclaves where federal jurisdiction is exclusive or concurrent. See, Dreos v. United States, 156 F.Supp. 200 (1957). In areas under the exclusive jurisdiction of the National Park Service, such as certain areas of the Baltimore-Washington Parkway, Maryland’s implied consent law does not apply and a United States Park Police officer would be unable to enforce it. In other areas, such as Fort Meade and Andrews Air Force base, applicability of the implied consent laws and enforcement by military police is an open question. United States v. Sauls, 981 F.Supp. 909 (D.Md. 1997)(dicta questioning the applicability of Maryland’s implied consent law on military bases located in Maryland); see, Roberts v. United States, 845 F.2d 226 (9th Cir. 1988)(holding that California’s implied consent provisions are not assimilated for prosecution on naval base and that breath test did not have to comply with California law); see also, infra (requirement of driving on a highway or other private property used by the public in general in Maryland).
   2. Stop or detention. The officer’s certificate should recite the factual basis for the stop or it may be defective. A driver may be required to show the officer acted in “bad faith.” COMAR, § 11.11.02.10H; Motor Vehicle Admin. v. Richards, 356 Md.356, 739 A2d. 58 (1999)(Fourth Amendment exclusionary rule inapplicable in MVA hearings); see, Sheetz v. City of Baltimore, 315 Md. 208, 553 A.2d 1281 (1989).
   3. Reasonable grounds. The facts listed by the officer must amount to probable cause to arrest for 21-902 a, b, c, or d or no action can be taken. Although § 16-205.1 uses the term “reasonable grounds,” since it authorizes the officer to make a detention which is equivalent to an arrest the term should be construed to be the equivalent of “probable cause.” See, Hayes v. Florida, 470 U.S. 811 (1985) (probable cause required to transport suspect to police station for fingerprinting); Parker v. State, 66 Md.App. 1, 502 A.2d 510 (1986); cf. Graham v. State, 13 Md. App. 171, 282 A.2d 162 (1971), cert. den., 264 Md. 748 (1972). Sometimes field sobriety tests are omitted or the driver performed well. The odor of an alcoholic beverage should not justify an arrest in and of itself. E.g., Saucier v. State, 869 P.2d 483 (Ak.App. 1994); State v. Taylor, 444 N.E.2d 481 (Oh.App. 1981). In Motor Vehicle Admin. v. Richards, 356 Md. 356, 739 A.2d 58 (1999), the Court of Appeals held that the Fourth Amendment exclusionary rule does not apply in MVA implied consent hearings. Nonetheless, “reasonable grounds” is a recognized issue that may be raised at the hearing under Transp. Art., § 16-205.1(f)(7) and a required finding that must be made before taking action under § 16-205.1(f)(8). In Motor Vehicle Admin. v. McDorman , 364 Md. 253, 772 A.2d 309 (2001), the Court of Appeals expressly avoided deciding whether “reasonable grounds” is the equivalent of “probable cause” or some lesser standard. In Motor Vehicle Admin. v. Weller, 390 Md. 115, 887 A.2d 1042 (2005), the Court of Appeals held the MVA may consider a preliminary breath test (PBT) result in determining whether the officer had reasonable grounds.
   4. Driving. On occasion there will not be a sufficient basis to conclude from the sworn certificate that the defendant was driving while intoxicated or driving at all. Some ALJs may contend that reasonable grounds to believe the defendant was the driver is sufficient for a refusal, even if the defendant did not actually drive. However, under § 16-205.1(a)(2) the implied consent law only applies to drivers. For APS hearings, driving is indisputably an element under § 16-205.1(f)(7)(i)(5). See, Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993); Thomas v. State, 277 Md. 314, 353 A.2d 256 (1976); Gore v. State, 74 Md. App. 143, 536 A.2d 735 (1988). See also, Javed v. Dept. of Public Safety, 921 P.2d 620(Alaska 1996)(holding that statute that did not require actual driving for suspension would violate due process).
   5. Evidence of alcohol or drug consumption. This element is usually satisfied by an indication that there was an odor of an alcoholic beverage on the defendant’s breath or the odor of a drug that has been smoked. For other drugs a “drug recognition expert” may be required to assert the facts which support this element. The current form DR-15A used by arresting officers has check boxes for the officer to check if the odor of alcohol beverage is none, fair, moderate or strong. If none is checked or no box is checked and the officer fails to offer any evidence the driver was drinking, the MVA has failed to make a prima facie case.
   6. The person drove on a highway. Where the sworn certificate establishes that the person drove on private property not used by the public in general no action is required. See, Walmsley v. State, 35 Md. App. 148, 370 A.2d 107 (1977); Akins v. State, 35 Md. App. 155, 370 A.2d 111 (1977). In Motor Veh >icle Admin. v. Atterbeary, 368 Md. 480, 796 A.2d 75 (Md. 2002), the Court of Appeals found that a common road between multiple automotive dealerships, a car wash, and a one or more automotive service centers located along the thoroughfare met the requirements of §16.205.1.
   7. The person drove in Maryland. On occasion there is no indication at all where the offense occurred. The implied consent law only applies in the state of Maryland. § 16-205.1(a)(2). No action should be taken.
   8. A sworn certificate (Form DR-15A). In Motor Vehicle Admin. v. McDorman , 364 Md. 253, 772 A.2d 309 (2001), the Court of Appeals held that the sworn statement “is not limited to the first hand knowledge or observations of the officer and that a law enforcement officer may rely on the statements and observations of other officers.”
      1. Sometimes the form is not signed at all, also requiring no action.
      2. Sometimes the officer leaves blanks in the form and fills them in after signing and providing the form to the driver, i.e. after swearing to it.
   9. The police officer requested a test after the person was fully advised of the sanctions that shall be imposed. This information usually appears in the DR-15A Officer’s Sworn Certificate and the DR-15 Advice of Rights to a chemical test.
      1. Occasionally, the officer will neglect to mail in the DR-15 form, requiring a no action.
      2. Any objection to the sufficiency of the DR-15 may be a basis for no action or for appeal. See, Krauss v. State, 322 Md. 376,587 A.2d 1102 (1991). In Wyatt v. State, 149 Md.App. 554, 817 A.2d 901 (2003), the Court of Special Appeals recognized that the refusal can be used as evidence of “consciousness of guilt.”
      3. Advice regarding options available to the ALJ for refusal, other than suspensions, e.g. eligibility for restrictive license, was deemed unnecessary by the Court of Appeals decisions in 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). However, effective January 1, 1994, the form was required to advise suspects that “a person who refuses to take the test is ineligible for modification of a suspension or issuance of a restrictive license.” Section 16-205.1(b)(2)(iii) has effectively overruled these decisions. In 1994, the MVA adopted a new DR-15 Advice of Rights form that incorporated the new language. The legislature made an additional change, effective on July 1, 1998, which also requires the phrase “under subsection (n)(1) or (2) of this section.” Subsection (n) which was adopted at the same time, allows an alternative sanction for some refusals: a modification of the suspension or a restrictive license if the licensee agrees to install of an interlock device in his vehicle for one year. As a result of this change, the 1994 DR-15 Form was argued to be defective in three respects: (1) it does not contain the advice of ineligibility under subsections (n)(1) and (n)(2); (2) it does not give advice that by clear implication must be given under the new law – that an interlock may be available under (n)(4); and (3) it falsely and misleadingly advises licensees that they are “ineligible” for a modification or restrictive license if they refuse the test. In Meanor v. State, 364 Md. 511, 774 A.2d 394 (2001), the Court of Appeals finally rejected these arguments. The DR-15 Form, effective July 1998, which contains the new language but failed to include the advice of the sanctions for a test result over .10 of 45 days for a first offense and 90 days for a second or subsequent offense, was agreed to be defective by most attorneys and judges. Use of that DR-15 Form not containing the required advice should result in a no action disposition under Transportation Article, §§ 16-205.1(f)(7), which indicates which issues can be raised at the administrative hearing, and (f)(8), which specifies the findings the ALJ must make before imposing a sanction. The latest DR-15 Form, effective 10/04, corrects errors in the earlier forms and contains advise of the criminal penalty for refusal. However, these forms do not advise licensees of their right to an independent test by their own physician. The Court of Special Appeals in State v. Weisbrod, 159 Md.App. 488, 859 A.2d 664 (2004), cert. den., 384 Md. 582, 865 A.2d 589 (2005), held that such advise is not required where the suspect refuses the State’s test.
      4. It is also clear as a result of Forman v. Motor Vehicle Admin., 332 Md. 201, 630 A.2d 753 (1993), that misleading, inaccurate or confusing advice may violate due process. It is important to note that after October 1, 2001, the refusal is admissible in the criminal case.
   1. (IC) The person did not refuse the test. Occasionally this defense will appear in the paperwork, such as where the officer or the driver checks the block on the DR-15 form indicating that they “agree to submit to an alcohol concentration test.”
   2. (APS) The person had an alcohol concentration of .08 or more at the time of testing, when the test result is only .08, no action can be taken if the driver demonstrates error which causes a false high reading. In Motor Vehicle Admin. v. Lytle, 374 Md. 37, 821 A.2d 62 (2003), the Court of Appeals rejected the argument that the ALJ must take into account the Regulations of the Toxicologist providing for a margin of error of .01 and rejected the reasoning of Haynes v. Dept. of Public Safety, 865 P.2d 753 (Alaska 1993).
   3. (APS) The test complied with Courts and Judicial Proceedings Article §§ 10-302-309. All of the equipment used must be approved by the toxicologist. The form currently used only indicates that the intoximeter is approved. There is no proof that the simulator solution used is approved. Section 10-303 also requires the test to be administered within two hours of detention. (IC) The intoximeter printout states “INSUFFICIENT BREATH” but there is no other evidence to show a volitional refusal. No action is required according to the Court of Appeals opinion in Borbon v. Motor Vehicle Admin., 345 Md. 267, 691 A.2d 1328 (1997). The toxicologist exceeded his authority by providing in his regulations that failure to provide sufficient breath is automatically a refusal. However, where the arresting officer or breath test technician are summoned by the MVA to testify that the insufficient breath was volitional, the licensee may offer medical evidence that the defendant had a lung condition which may have prevented him from supplying the required amount of air. Additionally, it is possible with the Intoximeter 3000 to blow too hard and fast, and the instrument will not obtain a reading.

1. ISSUES GENERATED BY THE CLIENT’S TESTIMONY
   1. Where there is a dispute as to a material fact, the right of cross-examination of the adverse witness is protected by giving the driver the opportunity to subpoena the witness. See, Forman v. Motor Vehicle Admin., 332 Md. 201, 630 A.2d 753 (1993); Tron v. Prince George’s County, 69 Md. App. 256, 517 A.2d 113 (1986). The hearing should be postponed and the officer subpoenaed. Failure to attempt to subpoena to the adverse witness(es) prior to the hearing may be a waiver of cross-examination, allowing the ALJ to find against the licensee on a disputed issue of fact, even though the licensee has appeared and testified under oath and the officer has not. See, Tron; Motor Vehicle Admin. v. Karwacki, 340 Md. 271, 666 A.2d 511 (1995)(where no attempt is made to subpoena the witness, the ALJ may choose to accept the sworn statement as more credible than the licensee’s live testimony). Conversely, the ALJ may not both reject the licensee’s sworn testimony and a request for a subpoena under Fowler v. Motor Vehicle Admin., 394 Md. 331, 906 A.2d 347 (2006).
      1. There is a dispute with respect to any of the elements listed above.
      2. The client’s request to confer with counsel was denied. Sites v. State, 300 Md. 702, 481 A.2d 1292 (1984); Brosan v. Cochran, 307 Md. 662, 516 A.2d 970 (1986); MVA v. Atterbeary, 368 Md. 480, 796 A.2d 75 (2002)(determination of whether counsel was denied is decided on a case by case basis; consent to take test need not be in writing; requesting to talk to attorney, although did not have name of attorney was not a refusal; opportunity to consult counsel must be reasonable, considering all the facts and circumstances).
      3. The client was given an opportunity to talk to counsel but the officer would not allow a private conversation. Fowler v. State, 6 Md. App. 651, 253 A.2d 409 (1969), aff’d, 259 Md. 95, 267 A.2d 228 (1970).
      4. The client was allowed to attempt to call counsel, but was not given sufficient time to do so.
   2. The client changed his mind within the two hour limit (or three hour limit for a blood test for CDS) and the officer would not let him or her take a test. This issue might arise under § 16-205.1(g) which allows drivers who initially refuse to submit to the test to change their minds if the decision to submit to the test is “unequivocal,” and “does not substantially interfere with the timely and efficacious administration of the test.” The statute also places on the driver the burden of proving by a preponderance that the delay in testing would not materially affect the outcome of the test. Additionally, the ALJ may consider whether the test would have been administered properly; whether the technician to administer the test is available; whether the delay would have interfered with another person ‘s test; whether the delay would have interfered with the duties of the arresting officer or test technician; whether the subsequent consent was made in good faith; and whether the driver was still in custody.
   3. The officer gave misleading advice in addition to the DR-15 or coerced a decision. (E.g. “Your P.B.T. was .20, if I were you I wouldn’t blow,” or “If you don’t blow, you’re going to jail.”) See, Hare and Forman.
   4. The client had some drinks after the accident.
   5. The officer failed to observe the driver for twenty minutes prior to the test.
   6. The client submitted to a PBT but was not given the advice required by Transportation Article § 16-205.2.
   7. The client submitted to a PBT and was not given the result.
   8. Miranda confusion. The officer gave the client Miranda warnings before the client decided whether to take or refuse the breathalyzer test and the client exercised his or her right to remain silent and refused the test. Dept. of Transportation v. O’Connell, 555 A.2d 873 (Pa. 1989); Dept. of Highways v. Beckey, 192 N.W.2d 441 (Minn. 1971); State v. Severino, 537 P.2d 1187 (Haw. 1975); Graham v. State, 633 P.2d 211 (1981); see, Forman.
   9. Type of test. The licensee was offered a blood test because the operator of the Intoximeter was not available. However, Courts and Judicial Proceedings Art., § 10-305(a)(3) only provides for a blood test if the equipment is unavailable. The Court of Appeals reversed the suspension for refusal to take a blood test in Hyle v. Motor Vehicle Admin., 348 Md. 143, 702 A.2d 760 (1997).
   10. Alibi. Somebody else said they were your client.
   11. Collateral Estoppel. Under the Court of Appeals decision in Janes v. State, 350 Md. 283, 711 A.2d 1319 (1998), collateral estoppel may not be raised as a defense in court after a favorable decision at the MVA. Although § 16-205.1(l) also provides that the determination of issues at the MVA is independent of the determination of issues in court, the ALJs should give court rulings great weight in light of the fact that the issue was probably more fully litigated at the trial than at the MVA.

1. REFUSAL TO SUBMIT TO A BLOOD TEST FOR CDS OR DRUGS
   Transportation Article 16-205(i) allows police, under limited circumstances, to request an individual to submit to a blood test to determine the presence of controlled dangerous substances (CDS) or drugs. A refusal carries the same penalties as a refusal to submit to a breath or blood test for alcohol. Unlike an alcohol test, which is quantitative, the blood test for drugs or CDS is qualitative. In other words, the blood test will only confirm the presence of absence of certain drugs, no level is obtained. Submission to a test indicating the presence of CDS or drugs carries no administrative per se penalty. Most of the issues outlined above also apply to refusals to submit to a blood test for drugs or CDS. In addition, the following issues may be raised in defense of a refusal to submit to a blood test.
   1. The test was not offered within four hours of detention. Cts. & Jud. Proc. Art., § 10-303.
   2. The officer requesting the test is not a member of a police department authorized to request blood tests for CDS or drugs. Transp. Art., § 16-205.1(i).
   3. The officer is not a drug recognition expert. Transp. Art., § 16-205.1(i).
   4. There are no reasonable grounds to believe the driver was under the influence of CDS or drugs. The drug recognition evaluation should be carefully reviewed.

2. MITIGATION
   1. A driver is generally only eligible for a modification or a restrictive license for purposes of work, alcohol education, or postsecondary education if:
      1. the driver submitted to a test;
      2. the driver has not had a prior §16-205.1 suspension or § 21-902 conviction within the past 5 years; and
      3. the driver needs the license to drive to and from employment, during the course of employment, to attend an alcohol program, or to attend classes..
   2. As a result of legislation that became effective on July 1, 1998, licensees who refuse or fail the test may be eligible for a license with an ignition interlock restriction for at least one year.
   3. The driver is required to submit a letter “from the employer on the employer’s letterhead” if the driver needs a license to drive during the course of employment, needs “satisfactory documentation from program officials” to support a restriction for alcohol education, and otherwise needs to submit “appropriate documentation” to justify a restrictive license or modification. COMAR, 11.11.03.09.
   4. Previously, only a licensee under 21 years of age was eligible for a permit that allows driving to postsecondary education under Transp. Art., § 16-205.1 (n)(2). However, as a result of legislative action, since October 1, 1998, all postsecondary students, otherwise eligible for a restricted permit, may obtain a permit to drive to and from school. They may also be required to install an interlock.
   5. The failure to provide a work restricted license to a housewife, on the ground that that occupation does not constitute “employment” may violate Maryland’s Equal Rights Amendment. Article 46 of the Maryland Declaration of Rights provides that “Equality of rights under the law shall not be abridged or denied because of sex.”