Mva v. Delawter, 63, September Term, 2007.

• Citation: 403 Md. 243,941 A.2d 1067
• Decision Date: 13 February 2008
• Docket Number: No. 63, September Term, 2007.,63, September Term, 2007.
• Parties: MOTOR VEHICLE ADMINISTRATION v. Lianne Marie DELAWTER.
• Court: Court of Special Appeals of Maryland

941 A.2d 1067

403 Md. 243

MOTOR VEHICLE ADMINISTRATION v. Lianne Marie DELAWTER.

No. 63, September Term, 2007.

Court of Appeals of Maryland.

February 13, 2008.

Leight D. Collins, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland of Glen Burnie, MD), on brief, for Petitioner.

Norman C. Usiak (Law Offices of Norman C. Usiak, P.C. of Frederick, MD), on brief, for Respondent

Argued Before BELL, C.J., and RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned) and DALE R. CATHELL (Retired, specially assigned), JJ.

BATTAGLIA, J.

Following a hearing¹ before the Motor Vehicle Administration ("MVA") on November 8, 2006, Administrative Law Judge C. Hooker Davis reduced the duration of the suspension of the driver's license of Respondent, Lianne Marie Delawter, to twenty-five days and referred Ms. Delawter to the Medical Advisory Board ("MAB" or the "Board")² for alcohol evaluation. After a judicial review hearing, the Circuit Court for Frederick County affirmed the twenty-five day suspension, but reversed the referral to the MAB because Ms. Delawter did not receive notice on the DR-15 Advice of Rights form "that by exercising her right to a hearing she was facing a possible referral to the MAB." Petitioner, the MVA, now presents us with the following question for review:

In the course of an administrative hearing under Md.Code Ann., Transp. § 16-205.1(f)(7), where the evidence established that a driver had been cited for drunk driving on multiple occasions, including a single-car crash, was the ALJ precluded from requesting that the MVA review the driver's medical fitness to drive, because the driver was not advised of the potential "MAB referral" in' the DR-15 Advice of Rights form?

MVA v. Delawter, 401 Md. 172, 931 A.2d 1095 (2007). We shall reverse the Circuit Court and hold that notice of a potential MAB referral need not be included in the DR-15 Advice of Rights form.

I. Introduction

On May 6, 2006, at approximately 2:30 in the morning, Ms. Delawter was involved in a single motor vehicle crash on Potomac and Main Streets in Boonsboro, Washington County, Maryland. Deputy First Class J. Garrett Mills of the Washington County Sheriffs Office arrived at the scene, determined that Ms. Delawter was the driver of the vehicle, and upon approaching her, detected a strong odor of alcohol about her person and noticed that her eyes appeared red and glassy. Deputy Sheriff Mills arrested Ms. Delawter for driving under the influence and provided her with a DR-15 Advice of Rights form,³ which advised her of the potential administrative sanctions she faced. Ms. Delawter was not subjected to field sobriety tests due to her injuries, but subsequently she had a blood sample taken, which indicated an alcohol concentration of .17. Four months later, on September 5, 2006, Deputy Sheriff Mills confiscated Ms. Delawter's driver's license, served her with an order of suspension", and issued her a temporary license.

Ms. Delawter requested a hearing before an administrative law judge, who convened it on November 8, 2006. Administrative Law Judge C. Hooker Davis admitted the DR-15 Advice of Rights Form signed by Deputy, Sheriff Mills and Ms. Delawter, the DR-15A Order of Suspension,⁴ the MSP-33 Result of Test Alcohol Concentration Form,⁵ and Ms. Delawter's driving record. Although her counsel argued that the Order of Suspension should be dismissed because of the delay between the accident and the issuance of the suspension, the ALJ disagreed. Ms. Delawter also contended that she should be granted a restricted license, arguing that she was enrolled at Mountain Manor treatment program for alcohol dependency and that she was employed in two different positions which required her to travel to various sites, which the ALJ also rejected. At the conclusion of the hearing, the ALJ determined that Deputy Sheriff Mills had reasonable grounds to believe that Ms. Delawter was driving while under the influence of or impaired by alcohol, that the Deputy believed that. Ms. Delawter had consumed alcohol, that he had advised her of the administrative sanctions to be imposed and had requested that an alcohol concentration test be performed, that the test was performed, and that the test results reflected an alcohol concentration of .17. The ALJ reduced the suspension to twenty-five days and also referred Ms. Delawter to the Medical Advisory Board:

After considering the evidence presented in this case, I find by a preponderance of the evidence the following facts. The officer who stopped or detained the Licensee had reasonable grounds to believe that the Licensee was driving or attempting to drive a motor vehicle while under the influence of or impaired by alcohol based on the following. The Licensee was the driver of a motor vehicle involved in an accident. The evidence of the use of alcohol was based on the following, a strong odor of an alcoholic beverage was on her person. The officer fully advised the Licensee of the administrative sanctions to be imposed. The officer requested that the Licensee take a test as defined in Maryland Code Annotated Transportation Section 16-205.1. The Licensee drove a motor vehicle and took the test as requested which indicated an alcohol concentration of 0.17 grams of alcohol per 100 milliliters of blood at the time of testing. The Licensee did not refuse the test. The Licensee was not driving a commercial motor vehicle. I find the Licensee did not present any evidence to refute the evidence presented by the MVA. I further find the Licensee was not prejudiced by the Administration regarding the delay in issuing the order of suspension. The Licensee is employed by CVS # 1484 as a pharmacy technician and by a private patient as a health care provider. The Licensee drives to work sites. The Licensee is under the supervision of the Division of Parole and Probation. She attends alcohol education at Mountain Manor where she was diagnosed as alcohol dependent on June 23, 06. Based upon the, foregoing, I conclude that the Licensee is subject to sanction under Section 16-205.1.

* * *

The Maryland driving record reflects two prior alcohol-related driving incidents, January 10, 1989, probation before judgment granted under 21-902(a), June 16, 1992, cited DUI, convicted Licensee has not had a license suspended under Section 16-205.1 in the past five years nor has the Licensee been convicted under 21-902 in the past five years. The Licensee has presented evidence in the form of testimonial evidence as well as documentary evidence regarding the need of a license for commuting for employment and for alcohol education. While the Licensee meets the criteria for the issuance of a restricted license in view of the prior two alcohol-related driving incidents I will not issue a restricted license. However, will modify the 45-day suspension to a suspension for a period of 25 days.

* * *

Under Section 16-118(c), COMAR 11.17.03, I'm referring this matter to the Medical Advisory Board for an alcohol evaluation.

Ms. Delawter filed a Petition for Judicial Review in the Circuit Court for Frederick County where she argued that the order of suspension should be dismissed because of the delay between the accident and service of the order, that the evidence did not support the ALJ's findings and that the ALJ exceeded his authority when he referred her to the MAB. The Circuit Court judge rejected Ms. Delawter's first two arguments and affirmed the suspension order, concluding that the ALJ's findings were supported by substantial evidence and that the delay in the service of the suspension order was not unreasonable or prejudicial. The judge reversed the referral to the MAB, however, noting that if. Ms. Delawter had not requested a hearing, she would not have been referred to the Board by the ALJ and that she "was not given notice that her exercise of her right to a hearing may have subjected herself to a possible referral to the MAB":

Petitioner further argues that under COMAR 11.17.03, the ALJ exceeded his authority by referring her to the MAB.

The MVA argues that the MAB is created pursuant to TR § 16-118. The nature of a referral is to report to the MAB a person who may be unfit to drive. The MVA argues it is within the discretion of the MAB, based on the referral they receive, to take action. Additionally, the MVA states that the referral to the MAB was warranted based on two related offenses; one in 1988, and the other in 1992. Further, the MVA argues that anyone (including an officer, ALJ or private citizen) can make a referral to the MAB.

However, the Assistant Attorney General candidly admitted that if Petitioner had not requested a hearing, Petitioner would not have been subjected to a possible referral to the MAB.

The Advise of Rights form given to Petitioner failed to inform her that by exercising her right to a hearing she was facing a possible referral to the MAB. This additional sanction inflicted upon Petitioner did in fact prejudice her.

CONCLUSION

For the reasons set forth herein, it is this 12th day of June, 2007, that this Court finds that there was substantial evidence before the Motor Vehicle Administration to support its findings and conclusions of the law regarding the suspension of 25 days and this Court AFFIRMS the MVA decision concerning the suspension. However, this Court REVERSES the referral to the MAB. Petitioner was not given notice that her exercise of her right to a hearing may have subjected herself to a possible referral to the MAB.

We granted the MVA's petition for writ of certiorari. Delawter, 401 Md. at 172, 931 A.2d at 1095.

II. Discussion

The MVA argues that the DR-15 Advice of Rights form is not required to include notice that an administrative law judge, after'conducting a hearing requested by a driver of a motor vehicle to modify the suspension of the driver's license, could refer the driver to the MAB, because the referral does not...