Sheppard v. State

• Decision Date: 01 September 1996
• Docket Number: No. 10,10
• Citation: 344 Md. 143,685 A.2d 1176
• Parties: Frances Diana SHEPPARD v. STATE of Maryland
• Court: Maryland Court of Appeals

Page 143

344 Md. 143

685 A.2d 1176

Frances Diana SHEPPARD v. STATE of Maryland.

No. 10 Sept. Term, 1996.

Court of Appeals of Maryland.

Dec. 12, 1996.

Nancy S. Foster, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Appellant.

Kathryn Grill Graeff, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Appellee.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI and RAKER, JJ.

CHASANOW, Judge.

The issue in the instant case is whether the trial judge abused his discretion by requiring, as a condition of probation, that a defendant convicted of driving under the influence of alcohol not operate a motor vehicle for the full three-year term of probation, even if the Motor Vehicle Administration (MVA) restores her driver's license.

I.

The facts in the instant case are not in dispute. The appellant, Frances Diana Sheppard, was convicted pursuant to Maryland Code (1977, 1992 Repl.Vol.), Transportation Article, § 21-902(b) ¹ of two counts of driving under the influence of alcohol. One offense occurred on August 23, 1994 and the other on March 6, 1995. A sentencing hearing was held, and Sheppard's attorney proffered that Sheppard had recently undergone triple-bypass, open-heart surgery, that she was suffering from anxiety and stress as the result of the recent murder of her son by an unidentified drug dealer, and that she was now in a counseling and alcohol treatment program. In allocution Sheppard stated:

"I'm not working now. I have no driver's license. And I live in Ocean Pines. I just don't have access to public transportation. And I've been under so much stress that I've tried to get my life together. I want to go back to work [as a registered nurse] more than anything."

The trial judge was also informed that Sheppard had two prior offenses, each of which occurred over ten years before the two instant offenses. Those prior offenses resulted in a probation before judgment for driving under the influence in 1982 and a conviction for driving under the influence in 1983.

For each of her new driving under the influence convictions, the court imposed a one-year-concurrent sentence, with all but 60 days suspended and a five-hundred-dollar fine. The court also placed Sheppard on supervised probation for three years. In addition, the court imposed several conditions including "alcohol counselling as may be directed by her probation officer, ... mandatory attendance at AA at least four times weekly," random urinalysis, and the requirement that she "not ... possess or consume any alcoholic beverages." As an additional condition of probation, the court stated: "I'm going to order her to not operate a motor vehicle while on probation. * * * Even if the [M]otor [V]ehicle [A]dministration gives you back your license, you cannot drive, because my order says you can't."

Sheppard appealed her sentence to the Court of Special Appeals raising the single issue: "May a trial judge lawfully order a defendant, in a driving under the influence case, as a condition of probation, to abstain from driving a motor vehicle for the three year term of probation?" This Court, on its own motion, issued a writ of certiorari to review the case prior to decision by the Court of Special Appeals. We hold that, under the circumstances of the instant case, the trial judge abused his discretion in ordering, as a condition of probation, that Sheppard not operate a motor vehicle even if the MVA returns her driver's license.

II.

A judge has very broad discretion when imposing conditions of probation "and may make such orders and impose such terms as to ... conduct ... as may be deemed proper...." Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 639(a). A judge, however, does not have unlimited discretion in fashioning conditions of probation. A condition of probation may be found to be unduly restrictive and unreasonable. For example, the suspension of a sentence on the condition that the defendant, who had been found guilty of assault with intent to murder, return to Puerto Rico and remain there for at least a ten-year period has been held to be an abuse of discretion and void. Bird v. State, 231 Md. 432, 190 A.2d 804 (1963).

Courts are divided on whether a judge may, as a condition of probation, prohibit a licensed driver from operating a motor vehicle during the period of probation. Some states have upheld such conditions of probation. For example, in City of Detroit v. Del Rio, 10 Mich.App. 617, 157 N.W.2d 324 (1968), the Court of Appeals of Michigan upheld a no-driving condition of probation and rejected the argument that the Michigan vehicle code provides the exclusive procedure for revocation and suspension of licenses. The court noted that the vehicle code did not specifically state that it would be the exclusive procedure for revocation and suspension of drivers' licenses and that, in any event, the purposes of the vehicle code were not intended to be identical to those of the criminal code. Del Rio, 157 N.W.2d at 326. The court explained that the purpose of suspension or revocation of licenses under the vehicle code is traffic safety. Id. The purposes of the criminal law, by contrast, "may coincide with the public aim of traffic safety," but there are other purposes as well. Id. Thus, the court rejected the argument that the vehicle code preempts a court's power to prohibit the operation of a motor vehicle as a condition of probation. Id.; accord Brock v. State, 165 Ga.App. 150, 299 S.E.2d 71, 72 (1983)(finding that statute giving Department of Public Safety authority to revoke or suspend drivers' licenses did "not purport to deprive a court ... of the authority to suspend a driver's license as a condition of probation"); see also Fearn v. Zolin, 9 Cal.App.4th 1756, 12 Cal.Rptr.2d 314, 316 (1992)(adopting view that administrative suspension of licenses, civil in nature, and licensure restriction pursuant to probation, criminal in nature, operate independently of each other).

The issue before this Court implicates both preemption and separation of powers. Did the legislature, although establishing detailed MVA administrative hearing procedures, detailed administrative license suspension and revocation penalties, and detailed procedures for restoration of driving privileges, intend that the courts also have virtually unrestricted authority over the driving privileges of those people on probation? Some states have upheld a condition of probation that a defendant not drive a motor vehicle by finding express legislative delegation of authority to a sentencing judge to restrict driving privileges. Clearly, if the legislature believed it was warranted, it could have empowered the trial courts to impose, as a condition of probation, suspension of driving privileges in cases involving motor vehicle violations. Cf. State v. Seaman, 237 Neb. 916, 468 N.W.2d 121, 122 (1991)(statute requires, as a condition of probation for third-offense of driving while intoxicated, that the court order a defendant not to drive for at least a period of one year); Blair v. State, 554 So.2d 1226 (Fla.Dist.Ct.App.1990)(Florida statute authorizes the sentencing court to direct the Department of Highway Safety and Motor Vehicles to revoke for a period of up to two years a driver's license of an individual convicted of possession of cocaine); but see People v. Goldberg, 45 Cal.App.3d 601, 119 Cal.Rptr. 616, 617 (1975)(Under the Vehicle Code, "a court cannot, even as a condition of probation, restrict a defendant's right to drive a motor vehicle for more than the period prescribed by the applicable sections of the ... Code.").

In Towers v. State, 92 Md.App. 183, 607 A.2d 105 (1992), a pharmacist who pled guilty to distributing Dilaudid was placed on probation with the special condition that the defendant not work in a pharmacy without the court's permission, even if the defendant's suspended pharmacy license was reinstated by the State Board of Pharmacy. The issue before the Court of Special Appeals was the validity of that condition of probation. Judge Wilner, writing for the court, identified the issue as follows:

"The issue here is essentially one of separation of powers--whether, in particular, the commitment of a specific area of regulation by the [l]egislature to an Executive Branch agency serves as an implied, but nonetheless effective, circumscription on an otherwise extensive Judicial power. We are dealing with overlapping circles of authority that are statutorily based, and it is therefore to the respective statutes that we must first turn.

Md.Code [A]rt. 27, § 641A(a) provides that, upon entering a judgment of conviction, the court may suspend the imposition or execution of sentence 'and place the defendant on probation upon such terms and conditions as the court deems proper.' This authority, as so expressed, is obviously very broad, but it is not unlimited. As we indicated in Watson v. State, 17 Md.App. 263, 274, 301 A.2d 26[, 31-32] (1973), '[w]hatever latitude the statutes repose in the trial judge, it remains, of course, fundamental that conditions of probation must be reasonable and have a rational basis.' See also Bird v. State, 231 Md. 432, 190 A.2d 804 (1963)...."

Towers, 92 Md.App. at 189-90, 607 A.2d at 108. In finding that the condition of probation violated the separation of powers, the Court of Special Appeals quoted from U.S. v. Sterber, 846 F.2d 842 (2d Cir.1988):

" '[B]ecause New York [law] sets forth well-defined procedures to determine whether revocation of Sterber's [ ] license is an appropriate sanction and provides Sterber with a meaningful opportunity to contest the imposition of such a sanction, we hold that the special condition of probation was improper....' "

Towers, 92 Md.App. at 193, 607 A.2d at 110 (quoting Sterber, 846 F.2d at 842-43). Because the licensing and regulation of pharmacists is committed to the State Board of...