Motor Vehicle Admin. v. Gonce

• Decision Date: 22 January 2016
• Docket Number: No. 38, Sept. Term, 2015.,38, Sept. Term, 2015.
• Citation: 446 Md. 100,130 A.3d 436
• Parties: MOTOR VEHICLE ADMINISTRATION v. Jeffrey Thomas GONCE.
• Court: Court of Special Appeals of Maryland

446 Md. 100

130 A.3d 436

MOTOR VEHICLE ADMINISTRATION

v.Jeffrey Thomas GONCE.

No. 38, Sept. Term, 2015.

Court of Appeals of Maryland.

Jan. 22, 2016.

Leight D. Collins, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Glen Burnie, MD), on brief, for Petitioner.

Raymond M. Atkins, Jr. (Towson, MD), on brief, for Respondent.

Argued before: BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS and GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.

WATTS, J.

In this case, we interpret Md.Code Ann., Transp. (1977, 2012 Repl.Vol., 2015 Supp.) ("TR") § 16–205.1,¹ commonly known as the "implied consent, administrative per se law," which provides a basis for the automatic suspension of the licenses of drivers who refuse to submit to testing for alcohol and drugs. Motor Vehicle Admin. v. Deering, 438 Md. 611, 615, 92 A.3d 495, 498 (2014). In Deering, id. at 612–13, 92 A.3d at 496–97, this Court explained the labels "implied consent" and "administrative per se" as follows:

[TR § 16–205.1 ] incorporates "implied consent" in that [TR § 16–205.1 ] provides that any individual who drives a vehicle in Maryland is deemed to have consented to take a chemical test—usually, a breath test—to measure [ ] alcohol concentration, if stopped by a [law enforcement] officer with reasonable grounds to believe that the person has been driving under the influence of alcohol. Despite [TR § 16–205.1 ]'s declaration of implied consent by all drivers, [TR § 16–205.1 ] recognizes that a driver detained by a[ law enforcement] officer may refuse to take the [ ] test. But the time for making that decision is limited—[ ] alcohol concentration is transient[,] and any test must be conducted within two hours of the stop.

The phrase "administrative per se" refers to the administrative consequences of a refusal to take the [ ] test, or of test results that reveal that the driver has a[n] alcohol concentration above certain levels (regardless of whether the driver otherwise appears to be impaired). In both cases, [TR § 16–205.1 ] provides for an automatic suspension of the driver's license for specified periods. The license suspension is an administrative sanction that is distinct from any criminal prosecution of the driver that might also ensue.

Under [TR § 16–205.1 ], a detained driver thus has a choice to make—a choice with legal consequences. On the one hand, refusing the test carries a sure suspension; on the other, taking the test may result in no sanction at all[,] or in a significant suspension plus an increased potential for criminal prosecution, depending on the test result.

Here, we decide the following question: Under TR § 16–205.1(b)(2) and (3), is a driver subject to an automatic license suspension for a refusal to take a drug test where the driver has taken an alcohol concentration test and a law enforcement officer has reasonable grounds to believe that the driver was driving while impaired by drugs? TR § 16–205.1's plain language, purpose, and legislative history lead us to the inescapable conclusion that the answer to this question is "yes"; under TR § 16–205.1(b)(2) and (3), a law enforcement officer with reasonable grounds to suspect impairment may request that a driver take both an alcohol concentration test and a drug test, and the driver is subject to an automatic license suspension for a refusal to take the second test.

BACKGROUND

On June 29, 2014, Trooper G. Stambaugh ("Trooper Stambaugh")² of the Maryland State Police issued to Jeffrey Thomas Gonce ("Gonce"), Respondent, an "Officer's Certification and Order of Suspension" that contained the following facts, which we summarize. At 5:00 p.m. on June 29, 2014, Gonce was driving west on U.S. Route 50 near the intersection with Castle Marina Road in Queen Anne's County. Trooper Stambaugh stopped Gonce for failure to securely fasten a registration plate. Upon seeing Gonce, Trooper Stambaugh observed what he believed to be indications of impairment, and, thus, administered the three-part Standardized Field Sobriety Test.³ The " horizontal gaze nystagmus" test indicated zero out of a possible six clues of impairment. The "walk and turn" test indicated seven out of a possible eight clues of impairment. The "one-leg stand" test indicated three out of a possible four clues of impairment.

Trooper Stambaugh did not detect any odor of alcohol on Gonce's breath. Trooper Stambaugh asked to perform a preliminary breath test, to which Gonce consented. The preliminary breath test indicated a breath alcohol concentration of 0.003 grams of alcohol per 210 liters of breath. Trooper Stambaugh arrested Gonce and provided him with an Advice of Rights form, seeking permission pursuant to TR § 16–205.1 to perform an alcohol concentration test.⁴

Gonce agreed to take an alcohol concentration test. Specifically, at 5:30 p.m., Gonce checked a box next to the words "Yes—Agree to submit to an alcohol concentration test" and signed the Advice of Rights form. According to a "State of Maryland Notification to Defendant of Result of Test for Alcohol Concentration" (bolding and some capitalization omitted) and a printout from the equipment that tested breath alcohol concentration, between 6:07 p.m. and 6:13 p.m., Gonce took a breath alcohol concentration test, which indicated a breath alcohol concentration of 0.000 grams of alcohol per 210 liters of breath. In other words, Gonce passed the alcohol concentration test.

Knowing that Gonce had passed the breath alcohol concentration test, but having observed indications of Gonce's impairment, Trooper Stambaugh referred Gonce to Trooper First Class M. Miller ("Trooper Miller"),⁵ a drug recognition expert. Trooper Miller completed a "Drug Recognition Expert's Certification Form." At 7:05 p.m., Trooper Miller evaluated Gonce. In the Drug Recognition Expert's Certification Form, Trooper Miller stated:

I had reasonable grounds, which I have set forth below on this form, to believe that [Gonce] was driving ... a motor vehicle while so far under the influence of any drug, any combination of drugs[,] or a combination of one or more drugs and alcohol, that [Gonce] could not drive a vehicle safely, or while under the influence of a Controlled Dangerous Substance.

REASONABLE GROUNDS: [Horizontal gaze nystagmus ], [Lack of convergence⁶ ], Droopy eyelids on the nod, Low raspy slow speech, Facial itching, Little reaction to light[, P]sychophysical impairment,^[7] 0.00 [0 Breath alcohol concentration], Slurred speech[,] Dry mouth, [C]onfused[.]

Trooper Miller asked Gonce to take a blood test for drugs or controlled dangerous substances, and Gonce refused to take the drug test.

Specifically, at 8:15 p.m., Gonce signed a second Advice of Rights form, on which he checked a box next to the words "No–Drug or [Controlled Dangerous Substances] test refused ( [Drug Recognition Expert] must complete & submit [Drug Recognition Expert] Certification Form)[.]" Afterward, Trooper Stambaugh confiscated Gonce's driver's license, served an order of suspension on Gonce, and issued him a temporary driver's license.

Gonce requested an administrative hearing to show cause why the Motor Vehicle Administration ("the MVA"), Petitioner, should not suspend his driver's license. On September 23, 2014, an administrative law judge ("the ALJ") of the Office of Administrative Hearings conducted an administrative hearing. The ALJ admitted into evidence the Officer's Certification and Order of Suspension, the State of Maryland Notification to Defendant of Result of Test for Alcohol Concentration, the Drug Recognition Expert's Certification Form, the printout from the equipment that tested breath alcohol concentration, and both Advice of Rights forms.

At the administrative hearing, Gonce did not dispute the accuracy of any facts in any document, including Trooper Stambaugh's observations, Trooper Miller's observations, or the results of the three-part Standardized Field Sobriety Test.⁸ Nor did Gonce dispute that Trooper Stambaugh had reasonable grounds to believe that he had been driving while under the influence of a drug or controlled dangerous substance. Instead, at the administrative hearing, Gonce asserted that, under TR § 16–205.1, he was not subject to an automatic license suspension for his refusal to take a drug test because he had taken and passed the alcohol concentration test. More broadly, Gonce argued that, under TR § 16–205.1, a driver is subject to an automatic license suspension for a refusal to take either an alcohol concentration test or a drug test, but not for a refusal to take a second test after the driver took one test. The ALJ rejected Gonce's contention, concluding that:

The way [that TR § 16–205.1 ] is written, it's a test for alcohol concentration and/or a test for drug detection[, or] for [controlled dangerous substances]. Here, [Trooper Stambaugh] would not have had reasonable grounds to request [Gonce] to take a [controlled dangerous substances] test until after he was seen by [Trooper Miller].^{[9 ]}

(Emphasis added). The ALJ determined that Trooper Stambaugh had reasonable grounds to believe that Gonce had been driving while under the influence of a controlled dangerous substance; concluded that Gonce violated TR § 16–205.1 by refusing to take the drug test; and ordered that Gonce's driver's license be suspended for one hundred and twenty days.

Gonce petitioned for judicial review. On March 17, 2015, the Circuit Court for Baltimore County¹⁰ ("the circuit court") conducted a hearing. In an oral ruling, the circuit court reversed the ALJ's decision and concluded that, after Gonce passed the alcohol concentration test, Gonce "was not required ... to submit to a blood test in order to avoid suspension." In an order dated April 14, 2015, the circuit court reversed the ALJ's decision.

On April 24, 2015, the MVA filed in this Court a petition for a writ of certiorari, raising the following issue:

Was a drunken or drugged driving suspect, who agreed to take an alcohol concentration test, which

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