Borbon v. Motor Vehicle Administration

RODOWSKY, Judge. This is an action for judicial review of the suspension by the Motor Vehicle Administration (MVA) under the implied consent law of the petitioner’s motor vehicle operator’s license. The issue is whether a result of “insufficient breath” reported by a breath alcohol testing device suffices, in and of itself, to prove that the motorist refused a breath test. Maryland Code (1977, 1992 Repl.Vol., 1996 Cum.Supp.), § 16-205.1 of the Transportation Article (TR) provides for suspensions of motor vehicle operators’ licenses for refusals to submit to chemical tests for intoxication.

TR § 16-205.1(f)(8)(i) lists the following four elements that must be present before the MVA may suspend the driver’s license or privilege: 1 “(i) After a hearing, the [MVA] 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 ... while intoxicated ...; ²⁷⁰ 2. There was evidence of the use by the person of alcohol ...; 3. The police officer requested a test after the person was fully advised 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 0.10 or more at the time of testing.” In this case, at the MVA hearing pursuant to TR §§ 16-205.1 and 12-206, neither the arresting officer, nor the breath test machine operator, nor the motorist testified. The factual record consists of the “ADVICE OF RIGHTS,” Form DR-15, the “OFFICER’S CERTIFICATION AND ORDER OF SUSPENSION,” Form DR-15A, the printout from the breath test machine, and the “NOTIFICATION TO DEFENDANT OF RESULT OF TEST FOR ALCOHOL CONCENTRATION,” DPSCS-MSP, Form 33. These documents reflect the following facts. On December 24, 1994, at about 4:00 a.m., Officer D. Dichoso of the Prince George’s County Police observed the petitioner, Jose Borbon (Borbon), driving on the wrong side of the road in the 8500 block of Indian Head Highway, Oxon Hill.

During the interview following the officer’s stop of Borbon’s vehicle, the officer observed “a strong odor of an alcoholic beverage on [Borbon’s] breath, his eyes very glassy, and slurred speech.” Borbon had difficulty standing, and he could not perform field sobriety tests. Borbon either read, or had read to him, the advice of rights, as evidenced by his signature on Form DR-15. A check in a block on that form indicated ‘YES—Agree to submit to an alcohol concentration test.” There was no mark in the block indicating “NO—Alcohol Concentration Test Refused.” Borbon was taken to Station IV of the Prince George’s County Police Department where Corporal K. McSwain undertook to perform a test for alcohol concentration utilizing an Intoximeter 3000 that bore the serial number 5081. The ²⁷¹ Intoximeter 3000 is computer controlled. 3 D.H. Nichols, Drinking/Driving Litigation, Criminal and Civil § 30:06, at Chap. 30—Page 24 (1995) (Nichols).

The computer printout for the test in the instant matter, excluding identifying information, reads as follows: “<TIME STARTED OBSERV 04:40 <SIM\ SOL. LOT # > 5081 TEST VALUE TIME BLK .000 04:48 EXTSTD .101 04:50 BLK .000 04:50 INSUFF. BREATH” The record further shows that, on Form DR-15A, Officer Dichoso checked the box reading, “You refused to take a test to determine alcohol concentration when requested by the Police Officer.” Officer Dichoso confiscated Borbon’s license and issued a temporary license. A portion of Form DR-15A is the “CERTIFICATION OF TEST TECHNICIAN OR ANALYST.” In part it reads: “I performed a test for alcohol concentration on the person described above and the test result was 0. [.]” Corporal McSwain inserted in the blank the word, “Refusal.” Form 33 was signed by Corporal McSwain, Officer Dichoso, and Borbon.

The form contains a certification that the testing equipment had been approved by the Toxicologist under the Post Mortem Examiners Commission. Form 33 also contains a certification by the analyst “that the result of the test for alcohol concentration is as stated above.... ” On the form in Borbon’s case the word “Refusal” was handwritten into the blank in the preprinted provision reading, “Breath specimen was found to contain an alcohol concentration of _ grams of alcohol per 210 liters of breath.” 2 ²⁷² Under TR § 12-207(a)(2) the MVA “may take judicial notice of technical and scientific facts within its specialized knowledge____” At Borbon’s suspension hearing before the MVA, the Administrative Law Judge (ALJ) interpreted the Intoximeter 3000 printout. He explained that between 4:48 and 4:50 a.m. the machine was performing an internal test or verification. The machine first established a zero baseline, then compared to the simulator solution, or external standard, and produced a proper reading of .10.

The next step, at 4:50 a.m., reflects that the machine had returned to the zero baseline and was beginning to test Borbon’s breath. The ALJ explained that “then the next line says ‘insufficient breath,’ when one actually tries to test the sample given from Mr. Borbon and [the machine] aborts at that point.” 3 ²⁷³ Borbon argued that the officer’s and technician’s conclusion of a test refusal was unsupported by the documents in evidence. The ALJ, however, decided that Borbon “gave [an] insufficient sample which was considered a refusal after [Borbon] was fully advised of the administrative sanctions for the refusal.” Borbon sought judicial review by the Circuit Court for Prince George’s County. That court affirmed the MVA on the ground that the record permitted the inference drawn by the ALJ.

Borbon then petitioned this Court for the writ of certiorari which we granted. Here, Borbon argues that “if a ‘refusal’ can occur after consent has been given, there must be evidence of, and a factual finding that, a defendant either changed his or her mind, or intentionally and purposefully refused to perform the test itself.” Brief of Appellant at 8. The MVA approaches the issue from the opposite direction. That agency argues that it was reasonable for the ALJ “to conclude Borbon refused the test by failing to complete it,” because “Borbon never testified as to the cause of his insufficient sample.” Thus, the MVA submits that the ALJ lacked any plausible evidence to the contrary of a refusal.

Brief of Appellee at 13. There is no dispute between the parties that a deliberate frustration by the driver of a breath alcohol test would be a refusal in fact to take the test, even if the driver previously had expressed a willingness to take the test. Here, where the machine aborted the test because of insufficient breath, the issue is whether the report by the machine supports the ALJ’s conclusion that Borbon refused testing. The question is whether, under the circumstances here, the MVA, in order to meet its burden as the proponent of license suspension, must produce some evidence that the driver intentionally frustrated the test and thus, by conduct, refused it, or whether proof that the machine reported insufficient breath raises a presumption ²⁷⁴ that the driver intentionally frustrated the testing device, so that the burden is on the driver to produce evidence of an innocent explanation for the reported insufficient breath.

I The MVA points out that the arresting officer and the Intoxhneter 3000 operator had been instructed to report an insufficient breath printout as a refusal by Regulations of the Toxicologist, Post Mortem Examiners Commission, State of Maryland, Regarding Tests of Breath and Blood for Alcohol adopted January 1, 1990, as amended February 1, 1992, and July 1, 1992 (the Regulations). 4 Section III.C.4, dealing with Intoximeter 3000 tests of breath for alcohol, reads: “If the subject-fails to complete the required test sequence by either not providing a sufficient breath sample as indicated by the instrument or failing to give a sample when directed to do so by the Operator, then the test shall be considered incomplete and shall be recorded in the State of Maryland Alcohol Testing Log as a refusal.” The role of the toxicologist under the Post Mortem Examiners Commission, as it relates to TR § 16-205.1, is found in subsection (a)(2) thereof. The consent implied from operating a motor vehicle in this State to a test for alcohol is “subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article” (CJ). Md.Code (1974, 1995 Repl.Vol.), CJ § 10-304(a)(3) defines a “qualified person” for the administration of a breath or blood alcohol test ²⁷⁵ as one “who has received training in the use of the equipment in a training program approved by the toxicologist....” Further, “[t]he test of breath shall be administered by a qualified person with equipment approved by the toxicologist----” CJ § 10-304(b). We have not been cited to, nor have we found, any statute that authorizes the toxicologist to establish evidentiary presumptions or to allocate the burdens of production and persuasion at an MVA suspension hearing involving an alleged violation of the implied consent law.

Regulation of those evidentiary matters is not implied from the authority to approve equipment and training programs. Thus, to the extent that § III.C.4 of the Regulations undertakes to establish a presumption of an intentional refusal to submit to a test based on a printout of insufficient breath, the Regulations exceed the authority statutorily conferred on the toxicologist. See Mayor of Baltimore v. William E. Koons, Inc., 270 Md. 231 , 310 A.2d 813 (1973); John McShain, Inc. v. Comptroller, 202 Md. 68 , 95 A.2d 473 (1953). II The MVA argues that TR § 16—205.1(f)(7)(ii) gives prima facie evidence effect to reports of test refusal made by the arresting officer and the test equipment operator on Forms DR-15A and 33.

That section reads: “The sworn statement of the police officer and of the test technician or analyst shall be prima facie evidence of a test refusal or a test resulting in an alcohol concentration of 0.10 or more at the time of testing.” In the context of subsection (f)(7)(ii), the “statement[s]” referred to do not embrace the type of test refusal that the ALJ found to have occurred in the instant matter. “The sworn statement of the police officer,” referred to in subsection (f)(7)(ii), is the statement referred to in § 16-205.1(b)(1). This latter provision deals with the advice of rights that the police officer is required to give to the motorist who has been detained on suspicion of an alcohol related ²⁷⁶ driving offense. “[T]he detaining officer shall advise the person that, on receipt of a sworn statement from the officer that the person was so charged and refused to take a test,” the MVA will, for a first offense test refusal, suspend the driver’s license for 120 days. TR § 16-205.1(b)(1)(i)2.A. Where the officer has reasonable grounds to believe that an alcohol related driving violation has occurred and “the person refuses to take the test,” the officer, inter alia, is to “[cjonfiscate the person’s driver’s license,” “personally serve an order of suspension on the person,” and “[i]ssue a temporary license to drive.” § 16—205.1(b)(8)(i) through (in). The sworn statement of the police officer that is referred to in subsection (f)(7)(ii) is also referred to in subsection (b)(3)(vii) which provides that “[wjithin 72 hours after the issuance of the order of suspension” the police officer is to “send any confiscated driver’s license, copy of the suspension order, and a sworn statement to the [MVA].” Subsection (b)(3)(vii)2 states that the sworn statement should indicate that “[t]he person refused to take a test when requested by the police officer.... ” In addition, the type of test refusal at issue here allegedly involves volitional conduct on the licensee’s part during the administration of the test.

It is unlikely that the General Assembly intended prima facie effect to be given to a police officer’s sworn statement that there was a test refusal during the administration of the test when the General Assembly specified that “[t]he officer arresting the individual may not administer the test of breath.” CJ § 10-304(b). Rather, the sworn statement of refusal by the officer, referred to in § 16-205.1(f)(7)(ii), is the express, categorical refusal during initial detention that ordinarily is not followed by any attempt to test. There is no provision in TR § 16-201.5 for a “sworn statement ... of the test technician or analyst,” other than in subsection (f)(7)(ii). CJ § 10-306(a)(2), however, does address the contents of a “report” that is to be made by the test technician or analyst.

Although CJ § 10-306 addresses the circumstances under which the report of the technician or analyst is admissible as substantive evidence in certain crimi ²⁷⁷ nal trials, the report may also be admissible, without the presence or testimony of the technician or analyst, in an MYA suspension hearing under TR § 16-205.1 pursuant to the evidence section of the Administrative Procedure Act, Md. Code (1984, 1995 Repl.Yol.), § 10-213 of the State Government Article. CJ § 10-306(a)(2) states: “To be admissible under paragraph (1) of this subsection, the report shall: (i) Identify the technician or analyst as a ‘qualified person,’ as defined in § 10-304 of this subtitle; (ii) State that the test was performed with equipment approved by the toxicologist under the Post Mortem Examiners Commission at the direction of a police officer; and (iii) State that the result of the test is as stated in the report.” The test results contemplated by CJ § 10-306(a)(2)(iii) are an alcohol concentration measured by grams of alcohol per 210 liters of breath. See CJ § 10—307(a)(2)(ii). The measurement derived from testing a particular individual is to be compared to the statutory presumptions of the effect of various alcohol levels established in CJ § 10-307(b) through (g).

We construed TR § 16.205.1(f)(7)(ii) in Motor Vehicle Admin. v. Gaddy, 335 Md. 342 , 643 A.2d 442 (1994). The licensee in that case argued that the administrative record failed to support his license revocation for a test refusal made in response to the officer’s request that the driver submit to a breath test. Relying on a literal reading of subsection (f)(7)(ii), the licensee argued that the Form DR-15A sent to the MVA in his case by the arresting officer was legally insufficient because it was signed only by that officer and because the statute also required the signature of the technician or analyst. Id. at 344-46 , 643 A.2d at 443-44 .

In rejecting that contention, we said: “The police officer who initially stops the driver, suspects alcohol misuse, and requests a chemical test is in the better position to attest to a driver’s refusal of the test, particularly since the act of refusal is complete at the moment it is ²⁷⁸ communicated to the officer. Motor Vehicle Admin. v. Vermeersch, 331 Md. [188,] 193, 626 A.2d [972,] 975 [1993].[ 5 ] After a driver has refused to submit to a test for alcohol concentration, the signature of a test technician whose services are not employed would be superfluous. Moreover, except for the presence of the conjunctive ‘and’ in the above-quoted statute, nothing in the scheme indicates that a test technician need be present when an officer stops a driver, when the officer requests the driver to take an alcohol concentration test, or when a driver refuses a test. To the contrary, subsection (b) repeatedly refers to the officer alone.” Id. at 348 , 643 A.2d at 445 .

Accordingly, we hold that the statement to which prima facie effect is given under subsection (f)(7)(ii) concerning