Motor Vehicle Admin. v. Shea, 133

Citation415 Md. 1,997 A.2d 768
Decision Date23 June 2010
Docket Number2008.,No. 133,133
CourtCourt of Appeals of Maryland

Leight D. Collins, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, of Glen Burnie, MD), on brief, for petitioner.

Lawrence S. Greenberg (Greenberg Law Office of Baltimore, MD), on brief, for respondent.

Leonard R. Stamm, Johanna Cohen Leshner, Goldstein & Stamm, P.A., Greenbelt, MD, for Amicus Curiae brief of the Maryland Criminal Defense Attorney's Association.



This appeal involves § 16-205.1 of the Transportation Article of the Maryland Code, often referred to as the “implied consent, administrative per se law” (hereinafter, “the Statute). See, e.g., Motor Vehicle Admin. v. Richards, 356 Md. 356, 362, 739 A.2d 58, 62 (1999). The Statute authorizes a police officer who has “reasonable grounds to believe” that a driver “is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol [or] while impaired by alcohol” to request the driver to submit to a test to determine the driver's blood alcohol concentration (“BAC”). See § 16.205.1(b)(2).1 If the driver agrees to the test and the test discloses a BAC of 0.15 or greater, then the Statute provides that the officer is to present to the driver an order of automatic suspension by the Motor Vehicle Administration (“MVA”). See § 16-205.1(b)(3)(i)-(ii). The Statute permits the driver to request a hearing at the Office of Administrative Hearings to show cause why the driver's license should not be suspended. At that hearing, the driver may challenge, among other matters, whether the officer had the requisite reasonable grounds to make the request for testing. See § 16-205.1(f)(7)(i)(1).

Adam Leigh Shea, Respondent, was stopped by a police officer who observed him driving while not wearing a seatbelt. During the stop, the officer smelled a moderate odor of alcohol emanating from Respondent's person. The officer conducted field sobriety tests (the results of which are not reflected in the record) and then arrested Respondent. At the police station, the officer advised Respondent of his rights and the potential penalties under the Statute, and asked him if he wished to take a breath test to ascertain his BAC. Respondent agreed to the test. The test result disclosed a BAC of 0.18. Pursuant to the Statute, the officer presented Respondent with an order of administrative suspension of his driver's license.

Thereafter, Respondent requested a show cause hearing. At the hearing he argued that: (1) the police officer who detained him lacked the requisite reasonable grounds to request the test; and (2) the test result was invalid. The Administrative Law Judge (ALJ) rejected the first argument and declined to consider the second, reasoning that the Statute did not permit Respondent to make the latter argument at a show cause hearing. The ALJ ordered the suspension of Respondent's driver's license for 90 days, and, as the Statute authorized the ALJ to do, promptly ordered the suspension stayed for one year, conditioned upon Respondent's participation in the Ignition Interlock Program. See § 16-205.1(n)(4)(ii).

Respondent sought judicial review of the ALJ's decision, raising in the petition the arguments he had presented to the ALJ.2 The Circuit Court for Baltimore County reversed the decision of the ALJ because, in the court's view, the record did not contain substantial evidence to support the ALJ's finding that the officer had reasonable grounds to request the test. In coming to that determination, the court decided, as a preliminary matter, that the officer did not have reasonable suspicion to conduct the field sobriety tests and, consequently, “all actions thereafter, [including, presumably, the test request and results,] are legally unsupportable.”

We granted the MVA's petition to review the judgment of the Circuit Court. For the reasons that follow, we reverse that judgment.


The facts leading to the suspension of Respondent's driver's license can be briefly stated. On the night of April 24, 2007, Officer William Phelps of the Baltimore City Police Department stopped the vehicle that Respondent was driving. Officer Phelps's description of the stop is contained on the MVA Form DR-15A he later completed.3 He wrote: “Driver observed operating vehicle w/o [meaning “without”] seat belt on. After being stopped a moderate odor of a(sic) alcohol beverage was emanating from his person-Driver was given SFST's [meaning “standard field sobriety tests”] and placed in custody.” We surmise from our reading of the transcript of the hearing before the ALJ that Respondent was charged with one or more alcohol-related driving offenses, and was found guilty of driving while impaired by alcohol. See Md.Code (1977, 2009 Repl. Vol), § 21-902 of the Transportation Article.

After taking Respondent into custody, Officer Phelps drove him to the police station. There, Officer Phelps asked Respondent to submit to a breath test to determine his BAC.4 As is required by the Statute, Respondent either read, or had read to him, MVA Form DR-15 “Advice of Rights” and agreed to take the test.5 A test technician for the Baltimore City Police Department performed the test and certified that the test produced a result of 0.18 BAC.

When a test registers a BAC higher than .08, subsection (b)(3) of the Statute provides, in part, that

the police officer shall: (i) Confiscate the person's driver's license issued by this State; (ii) Acting on behalf of the [Motor Vehicle] Administration, personally serve an order of suspension on the person; (iii) Issue a temporary license to drive; [and] (iv) Inform the person that the temporary license allows the person to continue driving for 45 days if the person is licensed under this title [Vehicle Laws-Drivers' Licenses].

The Statute further requires the officer to inform the person of his or her right to challenge the license suspension at an administrative “show cause” hearing, and to inform the person of the sanctions that “shall be imposed in the event of failure to request a hearing, failure to attend a requested hearing, or upon an adverse finding by the hearing officer[.] § 16-205.1(b)(3)(v)-(vi).

Subsection (b)(3)(viii)(1)-(3) of the Statute also requires the police officer to send, within 72 hours, a sworn statement to the MVA, setting forth the certification of the officer's “reasonable grounds to believe that the person had been driving or attempting to drive a motor vehicle ... while under the influence of alcohol.” The officer must also state if “the person submitted to the test which indicated an alcohol concentration of 0.08 or more at the time of testing,” and that [t]he person was fully advised of the administrative sanctions that shall be imposed, including the fact that a person who ... takes a test that indicates an alcohol concentration of 0.15 or more at the time of testing is ineligible for modification of a suspension or issuance of a restrictive license under subsection (n)(1) or (2) of this section.” 6 The DR-15A Form contained in the record reflects compliance with those statutory requirements.

The show cause hearing

Respondent exercised his right to request a hearing at the Office of Administrative Hearings, at which he had the opportunity to show cause why his license should not be suspended. He was represented by counsel at that hearing. The ALJ received, without objection from Respondent, the MVA forms that were generated in this case: Form DR-15 “Advice of Rights”; Form DR-15A “Certification and Order of Suspension”; and Form MSP-33 “Notification to Defendant of Result of Test Alcohol Concentration.” The ALJ found, based on those documents, a prima facie case for suspension of Respondent's license. 7 See § 16-205.1(f)(7)(ii) (providing that [t]he sworn statement of the police officer and of the test technician or analyst shall be prima facie evidence of ... a test result indicating an alcohol concentration of 0.15 or more at the time of testing”); § 16-205.1(b)(1)(i)(2)(A) (providing for the sanction of a 90-day suspension for a first-time offender with a BAC test result of 0.15 or greater).

Respondent called Officer Phelps to testify solely about the test procedure. Officer Phelps testified that the test technician spent “ten or fifteen minutes at most” observing Respondent before administering the breath test. Following that testimony, and with Respondent's agreement that the officer was no longer needed, the ALJ released the officer from the hearing. Respondent then made a motion that no action be taken because, according to the officer's testimony, the technician did not follow the procedure set forth in the Regulations of the Toxicologist requiring the tester, before administering the test, to observe for twenty minutes the person who is to be given the breathalyzer test. 8 The ALJ responded that [t]he only thing I've got in the file is a certification from [the testing technician] that the test result was a .18” and [t]here is no direct evidence that the individual ate or drank anything or did anything at all. He was brought in and he took the test and it was a .18 and it's confirmed by the report and the test strip.” The ALJ thereafter denied the motion, explaining that § 16-205.1(f)(7)(i) sets forth the only issues to be determined at a hearing and a challenge to the test technician's failure to follow the proper procedure does not appear among them. 9

Respondent then argued that due, in part, to the lack of information in the record concerning the results of the field sobriety tests, Officer Phelps failed to state reasonable grounds to request Respondent to submit to the breath test. The ALJ rejected that argument, deciding that Officer Phelps had set forth in Form DR-15A reasonable grounds to believe that Respondent was driving under the...

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