Forman v. Motor Vehicle Admin., 132

• Decision Date: 01 September 1992
• Docket Number: No. 132,132
• Citation: 630 A.2d 753,332 Md. 201
• Parties: Donna Michelle FORMAN v. MOTOR VEHICLE ADMINISTRATION. ,
• Court: Maryland Court of Appeals

Page 201

332 Md. 201

630 A.2d 753

Donna Michelle FORMAN v. MOTOR VEHICLE ADMINISTRATION.

No. 132, Sept. Term, 1992.

Court of Appeals of Maryland.

Sept. 16, 1993.

Robert C. Bonsib, Marcus & Bonsib, Greenbelt, all on brief, for appellant.

John R. Hargrove, Jr., Asst. Atty. Gen., Glen Burnie, J. Joseph Curran, Jr., Baltimore, both on brief, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

CHASANOW, Judge.

Before this Court is the propriety of an administrative law judge's 120-day suspension of the petitioner's driver's license under Maryland's implied consent statute, Maryland Code (1977, 1992 Repl.Vol.), Transportation Article, § 16-205.1. ¹ The statute provides that

"[a]ny 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 ... to take [an alcohol concentration] 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 [concerning commercial vehicles]."

§ 16-205.1(a)(2).

Section 16-205.1(b)(1)(i)(2)(A) imposes a mandatory 120-day suspension when a person who is detained for a first-time offense refuses to take a Breathalyzer test upon request of the detaining officer. Because this strict penalty is designed to encourage licensees to take, rather than to refuse, such alcohol tests, the statute also requires that the detaining officer advise the licensee of the mandatory suspension resulting from refusal so that the licensee can make a fully informed choice about taking the test. See § 16-205.1(b)(2) ("[T]he police officer shall ... (iii) [a]dvise the person of the administrative sanctions that shall be imposed for refusal to take the test....").

The petitioner, Donna Michelle Forman, who was detained upon suspicion of driving while intoxicated and subsequently given a 120-day suspension for refusing to take the test, makes three principal claims. Forman's first claim is that the detaining officer negated the required warnings by leading her to believe that the 120-day suspension was not mandatory, but in fact could be modified by the Motor Vehicle Administration (MVA) after a hearing. Forman's second claim is that the officer induced her to refuse the test by promising that upon her refusal he would take her to a friend's house, rather than to the police station, so that she might avoid telling her husband she had been charged with drinking and driving. Finally, Forman claims that the administrative law judge (ALJ) improperly refused her request to subpoena the detaining officer to testify at an administrative hearing about the conversation between the officer and Forman which Forman contends constituted both the negation and the inducement.

The issues which Forman raises are important and we will therefore discuss each one. In light of this discussion, we must remand the case for rehearing. A remand is necessary because the ALJ failed (1) to make adequate factual findings on the issues Forman raises, and (2) to explain his ultimate decision. Our basis for disposing of the case in this fashion will become apparent after an initial review of the facts and the proceedings below.

I.

On February 23, 1992, Officer John Jacobs of the Howard County Police Department stopped Forman on suspicion of driving while intoxicated. After stopping Forman's vehicle, Officer Jacobs detected an odor of alcohol and directed Forman to perform certain field sobriety tests. As a result of the way in which Forman performed these tests, Officer Jacobs placed her under arrest. Forman then signed the MVA's "Advice of Rights" form, the DR-15, certifying that she had "read or [had] been read the Advice of Rights for a test and [had] been advised of administrative sanctions that shall be imposed for refusal to take a test or for a test result indicating an alcohol concentration of 0.10 or more." She refused to take the Breathalyzer test. Pursuant to § 16-205.1(b)(3), Officer Jacobs confiscated her license, served Forman with an Order of Suspension, and issued a temporary license allowing her to drive for 45 days or until completion of an administrative hearing. ²

Officer Jacobs thereafter certified to the MVA on its form DR-15A that he had reasonable grounds to stop Forman, that she had refused the test, and that she had been "fully advised of the administrative sanctions" that would be imposed for her refusal. See § 16-205.1(b)(3)(vii). ³ Pursuant to § 16-205.1(f), Forman timely requested an administrative hearing from the MVA regarding the suspension of her driver's license. Prior to the hearing, she requested that the MVA, pursuant to its powers under § 12-108 of the Transportation Article, issue a subpoena to require Officer Jacobs to appear and testify at the hearing. Subpoena requests must contain "a proffer of the expected testimony and its relevance to the proceeding." Code of Maryland Regulations (COMAR) 11.11.03.07A(5). In her subpoena request, Forman proffered that Officer Jacobs would testify, in relevant part, as follows:

"That the officer did not have reasonable grounds to detain the licensee and further, did not fully advise the licensee of the administrative sanction for refusal to take the test or for test results in excess of 0.10.

In addition, this officer made the refusal involuntary and not a knowing and/or intelligent decision and induced the licensee to refuse the test by offering to allow her to be released at the scene and then driven to a friend[']s home....

This officer misadvised the licensee of the consequences of refusal, both in court and at the MVA hearing."

The MVA advised Forman that her request would be deferred until the administrative hearing, at which time the ALJ would decide whether to issue the subpoena. ⁴

Forman's hearing was held on May 15, 1992 before an administrative law judge. The crux of Forman's argument at the hearing was that, although she read and signed the DR-15 Advice of Rights form, in subsequent conversation at the scene of the arrest Officer Jacobs negated the warnings contained in the form and also induced her to refuse the alcohol concentration test, thereby affecting her ability to make a knowing and voluntary decision about whether to take or refuse the test. She testified that, after failing the pocket Breathalyzer and field sobriety tests, she was handcuffed and placed in the police cruiser. She then testified as follows:

"[FORMAN'S ATTORNEY]: When you got back in the police cruiser, was there any conversation about whether you would take another Breathalyzer test?

MS. FORMAN: He said we could go to the station and take the test out there at the police station.

[FORMAN'S ATTORNEY]: Okay. And did he tell you what happened if you decided to take that test?

MS. FORMAN: He said that my husband would have to come pick me up at the police station.

[FORMAN'S ATTORNEY]: You had discussions with him about that?

MS. FORMAN: Yes, I told him I did not want my husband to come pick me up at the police station. I asked him if he could just take me to my friend's house. He says, no, he couldn't do that, but then he would think about it. And I said, well, I can't, I don't want my husband to find out about this and I said I don't know what to do and then we started talking about refusing the test and I said, I just don't know what the right answer is. I said if I go to the police station, I said I don't want my husband to pick me up. I said he's going to kill me. My husband doesn't drink, you know, wake him up out of bed, you know, I just don't want that to happen. I don't want him to find out about this and he said that I could have all the papers sent to my employer and I just said, well, can you take me back to my friend's house and he said well, I'll think about it.

And then later on he said well, keep going back about whether or not to take the test or whether to refuse and he said, well, if you want to take the test I'll take you to the police station. He said, if you want to refuse, I'll take you back to your friend's house.

[FORMAN'S ATTORNEY]: Now, when you were talking to him about the test, did you ever, did he have a conversation with you about what would happen in terms of your license privileges if you refused the test?

MS. FORMAN: No. I asked him about that and I said if I go to the station, I said they may take it for 45 days, I said if I refuse it they may take it for 120. He said they may. He said I don't know what they're going to do. He said that he came and testified in one case; he said he didn't know if the guy got his license back or not. He said, what can you tell them, it's your first offense, that you were scared, you were confused, you just wanted to go back to your friend's house, what else can you say. That's what was going on.

[FORMAN'S ATTORNEY]: After all these, this discussion with the officer, did you, did you know at the time that you told him that you wanted to go back to your friend's house, that you didn't want to take the test, what was your thought as to what was going to happen here today in terms of certainty or probability of whether your license would be suspended or not?

MS. FORMAN: I thought, what I got out of it, that I would come here and I thought with people that I know that have had DWI's, I've known people that have got three of them and they are still driving on the road; whether or not they refused the test or took the test, I don't know, but I just thought I would come in here. I certainly didn't think that it was going to be a...