Motor Vehicle Administration v. Shepard, No. 88, September Term, 2006 (Md. App. 5/15/2007)

• Decision Date: 15 May 2007
• Docket Number: No. 88, September Term, 2006.,88, September Term, 2006.
• Parties: MOTOR VEHICLE ADMINISTRATION v. SCOTT H. SHEPARD.
• Court: Court of Special Appeals of Maryland

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MOTOR VEHICLE ADMINISTRATION v. SCOTT H. SHEPARD.

No. 88, September Term, 2006.

Court of Appeals of Maryland.

Filed: May 15, 2007.

In the Circuit Court for Montgomery County, Case No. 269435.

Raker, Cathell, Harrell, Battaglia, Greene, Eldridge, John C. (Retired, specially assigned), Wilner, Alan M. (Retired, specially assigned), JJ.

Opinion by RAKER, J.

This case involves the suspension of a driver's licence pursuant to Md. Code (1977, 2006 Rep. Vol., 2006 Supp.) § 16-205.1 of the Transportation Article.¹ Respondent's license was suspended after he refused to take an alcohol concentration test following a traffic stop for speeding. Respondent challenged the suspension before the Office of Administrative Hearings. The Administrative Law Judge ("ALJ") found respondent to be in violation of § 16-205.1. The Circuit Court for Montgomery County vacated that ruling. Because we find that the administrative ruling was based on substantial evidence and was not rendered on the basis of an erroneous conclusion of law, we shall reverse.

I.

Section 16-205.1 of the Transportation Article, commonly known as Maryland's Implied Consent Law, provides the statutory structure for suspending the license of a driver who refuses to submit to testing for alcohol concentration. Section 16-205.1(a)(2) states as follows:

"Any 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, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol . . ." Section 16-205.1(b)(2) requires a police officer who has reasonable grounds to believe that a person has been driving or attempting to drive a motor vehicle while under the influence of alcohol to:

"(i) Detain the person;

(ii) Request that the person permit a test to be taken;

(iii) Advise the person of the administrative sanctions that shall be imposed for test results indicating an alcohol concentration of at least 0.08 but less than 0.15 at the time of testing;

(iv) Advise the person of the administrative sanctions, including ineligibility for modification of a suspension or issuance of a restrictive license unless the person participates in the Ignition Interlock System Program under § 16-404.1 of this title, that shall be imposed for refusal to take the test and for test results indicating an alcohol concentration of 0.15 or more at the time of testing; and

(v) Advise the person of the additional criminal penalties that may be imposed under § 27-101(x) of this article on conviction of a violation of § 21-902 of this article if the person knowingly refused to take a test arising out of the same circumstances as the violation."

Notwithstanding the implied consent to take a test, a driver is generally not compelled to submit to testing to determine alcohol concentration. § 16-205.1(b)(1). Section 16-205.1(b)(3), however, directs a police officer to respond to a driver's refusal to take a test by seizing the person's driver's license, serving a temporary order of suspension, issuing a temporary driver's license, and informing the driver of his or her right to a hearing and possible administrative sanctions.

Section 16-205.1(f)(8)(i) requires the Motor Vehicle Administration ("M VA") to suspend an individual's driver's license if the ALJ makes certain findings at an administrative hearing. The section states as follows:

"After a hearing, the Administration shall suspend the driver's license or privilege to drive of the person charged under subsection (b) or (c) of this section if:

1. The police officer who stopped or detained the person had reasonable grounds to believe the person was driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, while so far impaired by 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 impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title;

2. There was evidence of the use by the person of alcohol, any drug, any combination of drugs, a combination of one or more drugs and alcohol, or a controlled dangerous substance;

3. The police officer requested a test after the person was fully advised, as required under subsection (b)(2) of this section, of the administrative sanctions that shall be imposed; and

4. A. The person refused to take the test; or B. A test to determine alcohol concentration was taken and the test result indicated an alcohol concentration of 0.08 or more at the time of testing."

An aggrieved driver whose license has been suspended may seek judicial review of the administrative decision before a circuit court of this State. § 16-205.1(j).

II.

Respondent's license was suspended pursuant to § 16-205.1(f)(8)(i) following a hearing before the Office of Administrative Hearings. At the hearing, the ALJ issued an opinion and order based upon a form DR-15A² filed by the arresting officer and the testimony of respondent. The DR-15A indicated that at 1:03 a.m., on October 7, 2005, Gaithersburg City Police Officer Finch saw respondent driving in excess of 132 miles per hour, that he stopped the vehicle, there was a strong odor of alcohol on respondent's breath, respondent had bloodshot and watery eyes, respondent blew a preliminary breath test of 0.10, and respondent admitted drinking two beers. Based on this evidence, the ALJ made the following findings of facts.

On October 7, 2005, at 1:03 a.m., Officer Finch observed a Porsche Boxster traveling at a speed in excess of 132 miles per hour on Route I-270 in Montgomery County, Maryland. The officer initiated a traffic stop, at which time he identified respondent as the driver of the Porsche. Respondent had a strong odor of alcohol on his breath, as well as watery and bloodshot eyes. Officer Finch asked respondent if he had been drinking, and respondent stated that he had two beers earlier that evening. After the officer administered a preliminary breath test, respondent performed a standard field sobriety test, which included a horizontal gaze nystagmus test, a walk and turn test, and a one leg stand test. Officer Finch arrested respondent for driving under the influence of alcohol, and indicated in his report that respondent failed the field sobriety test.

Back at the police station, Officer Finch requested that respondent take a breathalyzer test to determine his alcohol concentration level. The officer advised respondent of administrative and criminal sanctions he would face for either refusing to submit to testing or submitting to testing where the results showed an alcohol concentration level above the legal limit. Respondent signed a form DR-15,³ thus acknowledging that the officer advised him of the possible sanction she would face for refusing the test. Respondent refused the breath test. Pursuant to the statute, and acting on behalf of the MVA, Officer Finch served an order of suspension of respondent's driver's license.

At the administrative hearing, the ALJ determined that Officer Finch had reasonable grounds to believe respondent had been driving under the influence of alcohol on the night in question. The ALJ ruled orally as follows:

"I've considered the evidence and the testimony presented in this case, and I find by a preponderance of the evidence the following facts. The police officer who stopped or detained you, Mr. Shepard, did have reasonable grounds to believe that you were driving or attempting to drive a motor vehicle while under the influence of alcohol because when he first came upon you, you were speeding 132 miles per hour, and there was further evidence of the use of a lcohol based upon the fact that it was early morning hours, you had an odor of alcohol, you had bloodshot, watery eyes, the standard field sobriety tests were performed unsatisfactorily, and you admitted drinking.

***

The issue was alcohol in this case pretty clearly. And in any event the issue is not probable cause. That is the issue in a criminal proceeding . The issue in this case is reasonable grounds. The reasonable grounds as stated by the officer are much more than sufficient. He has stated more than sufficient reasonable grounds to request that you take a test. That's what he was doing here. The standard field sobriety tests are identified contrary to counsel's statement. Horizontal gaze nystagmus, walk and turn, one leg stand, he says that those tests were done. He said based on the results arrested. There is also a reasonable inference that I am going to draw that based upon that language that the tests were done not to his satisfaction which is why he arrested you for driving while under the influence of alcohol. The officer did fully advise you of the sanctions to be imposed, requested that you take a test which you refused. Therefore, you are in violation of § 16-205.1"

The ALJ filed written findings of fact and conclusions of law, in which she stated § 16-205.1 was violated based upon the following: "early A.M. hours, odor a lcohol, bloodshot, watery eyes, SFSTS [standard field sobriety tests] performed unsatisfactorily, admitted drinking." The ALJ imposed a one year suspension of respondent's driver's license, stayed on the condition that he participate in the Ignition Interlock Program for a period of eighteen months.

Respondent filed a petition for judicial review in the Circuit Court for Montgomery County. Before the Circuit Court, respondent argued as follows:

"[T]he operative allegations upon which the administrative law judge premised his decision were, `standard field sobriety tests, the nystagmus gaze, walk and turn, one leg stand were done, based on...