Forman v. Motor Vehicle Administration

CHASANOW, Judge. Before this Court is the propriety of an administrative law judge’s 120-day suspension of the petitioner’s driver’s license under Maryland’s implied consent statute, Maryland Code (1977, 1992 Repl.Vol.), Transportation Article, § 16-205.1. 1 The statute provides that “[a]ny 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 ... to take [an alcohol concentration] test if the person should be detained on suspicion of driving or attempting to drive while intoxicated, while under the influence of alcohol, while so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle ²⁰⁶ safely, while under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title [concerning commercial vehicles].” § 16-205.1(a)(2), Section 16-205.1(b)(l)(i)(2)(A) imposes a mandatory 120-day suspension when a person who is detained for a first-time offense refuses to take a Breathalyzer test upon request of the detaining officer. Because this strict penalty is designed to encourage licensees to take, rather than to refuse, such alcohol tests, the statute also requires that the detaining officer advise the licensee of the mandatory suspension resulting from refusal so that the licensee can make a fully informed choice about taking the test. See § 16-205.1(b)(2) (“[T]he police officer shall ...

(iii) [a]dvise the person of the administrative sanctions that shall be imposed for refusal to take the test....”). The petitioner, Donna Michelle Forman, who was detained upon suspicion of driving while intoxicated and subsequently given a 120-day suspension for refusing to take the test, makes three principal claims. Forman’s first claim is that the detaining officer negated the required warnings by leading her to believe that the 120-day suspension was not mandatory, but in fact could be modified by the Motor Vehicle Administration (MVA) after a hearing. Forman’s second claim is that the officer induced her to refuse the test by promising that upon her refusal he would take her to a friend’s house, rather than to the police station, so that she might avoid telling her husband she had been charged with drinking and driving.

Finally, Forman claims that the administrative law judge (ALJ) improperly refused her request to subpoena the detaining officer to testify at an administrative hearing about the conversation between the officer and Forman which Forman contends constituted both the negation and the inducement. The issues which Forman raises are important and we will therefore discuss each one. In light of this discussion, we must remand the case for rehearing. A remand is necessary because the ALJ failed (1) to make adequate factual findings ²⁰⁷ on the issues Forman raises, and (2) to explain his ultimate decision.

Our basis for disposing of the case in this fashion will become apparent after an initial review of the facts and the proceedings below. I. On February 23, 1992, Officer John Jacobs of the Howard County Police Department stopped Forman on suspicion of driving while intoxicated. After stopping Forman’s vehicle, Officer Jacobs detected an odor of alcohol and directed For-man to perform certain field sobriety tests. As a result of the way in which Forman performed these tests, Officer Jacobs placed her under arrest.

Forman then signed the MVA’s “Advice of Rights” form, the DR-15, certifying that she had “read or [had] been read the Advice of Rights for a test and [had] been advised of administrative sanctions that shall be imposed for refusal to take a test or for a test result indicating an alcohol concentration of 0.10 or more.” She refused to take the Breathalyzer test. Pursuant to § 16 — 205.1(b)(3), Officer Jacobs confiscated her license, served Forman with an Order of Suspension, and issued a temporary license allowing her to drive for 45 days or until completion of an administrative hearing. 2 ²⁰⁸ Officer Jacobs thereafter certified to the MVA on its form DR-15A that he had reasonable grounds to stop Forman, that she had refused the test, and that she had been “fully advised of the administrative sanctions” that would be imposed for her refusal. See § 16 — 205.1(b)(3)(vii). 3 Pursuant to § 16 — 205.1(f), Forman timely requested an administrative hearing from the MVA regarding the suspension of her driver’s license. Prior to the hearing, she requested that the MVA, pursuant to its powers under § 12-108 of the Transportation Article, issue a subpoena to require Officer Jacobs to appear and testify at the hearing.

Subpoena requests must contain “a proffer of the expected testimony and its relevance to the proceeding.” Code of Maryland Regulations (COMAR) 11.11.03.07A(5). In her subpoena request, Forman proffered that Officer Jacobs would testify, in relevant part, as follows: “That the officer did not have reasonable grounds to detain the licensee and further, did not fully advise the licensee of the administrative sanction for refusal to take the test or for test results in excess of 0.10. In addition, this officer made the refusal involuntary and not a knowing and/or intelligent decision and induced the ²⁰⁹ licensee to refuse the test by offering to allow her to be released at the scene and then driven to a friend[’]s home.... This officer misadvised the licensee of the consequences of refusal, both in court and at the MVA hearing.” The MVA advised Forman that her request would be deferred until the administrative hearing, at which time the ALJ would decide whether to issue the subpoena. 4 Forman’s hearing was held on May 15, 1992 before an administrative law judge.

The crux of Forman’s argument at the hearing was that, although she read and signed the DR-15 Advice of Rights form, in subsequent conversation at the scene of the arrest Officer Jacobs negated the warnings contained in the form and also induced her to refuse the alcohol concentration test, thereby affecting her ability to make a knowing and voluntary decision about whether to take or refuse the test. She testified that, after failing the pocket Breathalyzer and field sobriety tests, she was handcuffed and placed in the police cruiser. She then testified as follows: “[FORMAN’S ATTORNEY]: When you got back in the police cruiser, was there any conversation about whether you would take another Breathalyzer test? MS.

FORMAN: He said we could go to the station and take the test out there at the police station. [FORMAN’S ATTORNEY]: Okay. And did he tell you what happened if you decided to take that test? MS. FORMAN: He said that my husband would have to come pick me up at the police station. [FORMAN’S ATTORNEY]: You had discussions with him about that?

MS. FORMAN: Yes, I told him I did not want my husband to come pick me up at the police station. I asked him if he could just take me to my friend’s house. He says, no, he ²¹⁰ couldn’t do that, but then he would think about it.

And I said, well, I can’t, I don’t want my husband to find out about this and I said I don’t know what to do and then we started talking about refusing the test and I said, I just don’t know what the right answer is. I said if I go to the police station, I said I don’t want my husband to pick me up. I said he’s going to kill me. My husband doesn’t drink, you know, wake him up out of bed, you know, I just don’t want that to happen.

I don’t want him to find out about this and he said that I could have all the papers sent to my employer and I just said, well, can you take me back to my friend’s house and he said well, I’ll think about it. And then later on he said well, keep going back about whether or not to take the test or whether to refuse and he said, well, if you want to take the test I’ll take you to the police station. He said, if you want to refuse, I’ll take you back to your friend’s house. [FORMAN’S ATTORNEY]: Now, when you were talking to him about the test, did you ever, did he have a conversation -with you about what would happen in terms of your license privileges if you refused the test? MS.

FORMAN: No. I asked him about that and I said if I go to the station, I said they may take it for 45 days, I said if I refuse it they may take it for 120. He said they may. He said I don’t know what they’re going to do. He said that he came and testified in one case; he said he didn’t know if the guy got his license back or not.

He said, what can you tell them, it’s your first offense, that you were scared, you were confused, you just wanted to go back to your friend’s house, what else can you say. That’s what was going on. [FORMAN’S ATTORNEY]: After all these, this discussion with the officer, did you, did you know at the time that you told him that you wanted to go back to your friend’s house, that you didn’t want to take the test, what was your thought as to what was going to happen here today in terms of certainty or probability of whether your license would be suspended or not? ²¹¹ MS. FORMAN: I thought, what I got out of it, that I would come here and I thought with people that I know that have had DWI’s, I’ve known people that have got three of them and they are still driving on the road; whether or not they refused the test or took the test, I don’t know, but I just thought I would come in here. I certainly didn’t think that it was going to be a mandatory thing, that they were going to take my license away from me.

I thought I had a good chance of getting my license back. [FORMAN’S ATTORNEY]: If you had known that refusal to take the test would have necessarily certainly resulted in your license being suspended for 120 days, would you have taken the test? MS. FORMAN: Yes, I would have gone to the station. [FORMAN’S ATTORNEY]: Why? MS.

FORMAN: Because I can’t lose my license for four months. ***** [FORMAN’S ATTORNEY]: When you read this form [the DR-15], did you have any discussion with the officer about the meaning of the form? MS. FORMAN: That’s the one where it states that your license will be taken for 120 days. Yeah, there was one— that’s when I was talking to him about that.

That’s when I couldn’t make up my mind. I said I couldn’t lose my license for four (4) months. I don’t know if I should refuse the test or take the test. But I can’t — and that’s when he says, he said what can you tell them.

He said, you were scared, you were confused. I had never been in a police car before. I had never done anything wrong. I just wanted to go back where I knew people.

I had never been in a police station. I didn’t know what was going to happen to me. And he said they may give your license back. He said I don’t know what they’re going to do.” (Emphasis added).

The ALJ declined to issue a subpoena for Officer Jacobs. Instead, after hearing this testimony from Forman and further argument from her attorney, he concluded: ²¹² “After considering the evidence introduced and the testimony given ..., I find Licensee appeared for a hearing pursuant to proper notice. Represented by legal counsel. Maryland driving record is accurate.

Licensee was lawfully arrested on 2/23/92 after being observed by police officer cross the double yellow line by one half of a motor vehicle. Upon contact, the police officer detected an odor of alcohol. Licensee failed three (3) field sobriety tests. Licensee read DR-15 [Advice of Rights form].

Licensee signed form. Licensee is a high school graduate, one semester college. Licensee refused to submit to chemical test. First refusal.

I conclude Licensee is subject to the provisions of Section 16-205.1 and I’m suspending your license for a period of 120 days.” Forman noted a timely appeal to the Circuit Court for Howard County, which affirmed the decision of the administrative law judge. Forman filed a petition for writ of certiorari with this Court seeking review under Md.Code (1974, 1989 Repl. Vol), Courts and Judicial Proceedings Art., § 12-305, and we granted her petition.

II

Underlying the result we reach today is the importance this Court has attached to a detained driver’s receipt of the required advice of rights. We have previously indicated that a detaining officer’s negation of previously and properly given advice of rights can violate a licensee’s due process rights. Hare v. Motor Vehicle Admin., 326 Md. 296, 306 , 604 A.2d 914, 919 (1992). In Hare and its companion case of Motor Vehicle Admin, v. Chamberlain, 326 Md. 306 , 604 A.2d 919 (1992), we considered whether a detaining officer must advise drivers of the MVA’s ability to modify a suspension or issue a restrictive license for drivers who take an alcohol concentration test and fail, but meet certain conditions.

The relevant statute was § 16-205.1(m), which provides: ²¹³ “Modification of suspension. — (1) The Administration may modify a suspension under this section or issue a restrictive license if: (1) The licensee did not refuse to take a test; (ii) The licensee has not had a license suspended under this section during the past 5 years; (iii) The licensee has not been convicted under § 21-902 of this article during the past 5 years; and (iv) 1. The licensee is required to drive a motor vehicle in the course of employment; 2. The licensee is required for the purpose of attending an alcoholic prevention or treatment program; or 3. It finds that the licensee has no alternative means of transportation available to or from the licensee’s place of employment and, without the license, the licensee’s ability to earn a living would be severely impaired.

(2) If the licensee refused to take a test, the Administration may not modify a suspension under this section or issue a restrictive license.” In Hare and Chamberlain , the licensees both argued that the MVA’s § 16-205.1(m) ability to exercise discretion only when a driver takes a test and fails is an incentive to take the test significant enough that the detaining officers should have informed them of it. 5 Specifically, the licensee in Chamberlain contended that, in addition to being told of the longer suspension resulting from refusal versus failure (120 days for a first offense, versus 45 days), the detained driver “must be told of at least one other reward or incentive which flows from failing the test, but not from refusing it, i.e., that a driver who fails the test may be eligible to have his suspension modified or for a restrictive license.” Chamberlain, 326 Md. at 314 , 604 ²¹⁴ A.2d at 922. The licensee in Hare made the same argument, and further contended that he “was denied due process when he was not so advised.” Hare, 326 Md. at 300 , 604 A.2d at 915 . He asserted that “it is fundamentally unfair, hence, a denial of due process, to suspend a driver’s license without first advising the driver ‘fully’ of the applicable administrative sanctions.” Id. at 301 , 604 A.2d at 916. In each case, the Court rejected the licensee’s claim, holding that the detaining officer need not inform the driver of the possibility of suspension, modification, or the issuance of a restricted license.

In Chamberlain, 326 Md. at 323 , 604 A.2d at 927 , we concluded that the statute .did not require that any such advice be given. In Hare , we acknowledged that “ ‘[t]he continued possession of a driver’s license ... may become essential to earning a livelihood; as such, it is an entitlement which cannot be taken without the due process mandated by the Fourteenth Amendment.’ ” Hare, 326 Md. at 301 , 604 A.2d at 916 (quoting Sites v. State, 300 Md. 702, 717 , 481 A.2d 192, 200 (1984), citing Dixon v. Love, 431 U.S. 105 , 97 S.Ct. 1723 , 52 L.Ed.2d 172 (1977) and Bell v. Burson, 402 U.S. 535 , 91 S.Ct. 1586 , 29 L.Ed.2d 90 (1971)). Nonetheless, we decided that due process does not require a detaining officer to provide any advice other than that which the statute requires. “A driver need not be told of every conceivable incentive for taking a chemical test for alcohol or, for that matter, even one additional incentive not required by the statute.” Hare, 326 Md. at 304 , 604 A.2d at 918 . “Having provided the advice mandated by the statute, the police officer was not required to anticipate, or guess at, what incentive would have caused the driver to take the chemical test____ Due process does not require the officer to weigh the relative merits, for encouragement value, of particular consequences flowing from the decision whether to take or refuse a chemical test.” Id. at 306 , 604 A.2d at 918-19. 6 ²¹⁵ In Hare , although we determined that due process does not require the driver to be informed of more than the statute requires, we also cautioned that due process demands “that the State not mislead the defendant or construct road blocks, thus unduly burdening [the defendant’s] decision-making.” Id. at 304 , 604 A.2d at 918. Writing for the Court, Judge Bell observed that “had [the officer] undertaken to provide additional information and it turned out to be misleading or inaccurate, that, in itself, may have been a denial of due process.” Id. at 306, 604 A.2d at 919.

Courts from other jurisdictions have explicitly held what Hare clearly implied — that an officer’s negation of previously and properly given advice of rights may necessitate reversal of a license suspension. In Gargano v. New York State Dep’t of Motor Vehicles, 118 A.D.2d 859 , 500 N.Y.S.2d 346 , appeal denied, 68 N.Y.2d 606 , 506 N.Y.S.2d 1030 , 498 N.E.2d 150 (1986), the officer initially administered the statutory warning by reading from a card correctly indicating that a refusal to submit to the test would “ ‘result in the immediate suspension and subsequent revocation’ ” of the driver’s license. However, it was later conceded that “after this initial statement by the officer, the officer thereafter, in explaining the meaning of the warning to the petitioner, incorrectly stated as follows: T told him that his license would be suspended for three months and that he would have to appear at a DMV hearing in fifteen days.’ ” Id., 118 A.D.2d 859 , 500 N.Y.S.2d at 346 . The court concluded that “[t]his later ‘explanation’ of the warning was clearly incorrect, and under the circumstances, violated the requirement that the petitioner be warned ‘in clear or unequivocal language’ of the serious and immediate consequences of a refusal to submit to a chemical test.” Id., 118 A.D.2d 859 , 500 N.Y.S.2d at 346-47 .

The court reversed the revocation order. ²¹⁶ In Commonwealth Dep’t of Transp. v. Osborne, 135 Pa. Commw. 297 , 580 A.2d 914 (1990), the officer correctly informed the driver that his license would be suspended upon refusal to submit to an alcohol concentration test. It was subsequently established that the officer also told the driver, incorrectly, that he was aware of a “special work permit” which would allow the driver to drive to and from work during the suspension. Id., 135 Pa.Commw. 297, 580 A.2d at 915-16 .

The court affirmed a lower court’s reversal of the suspension, rejecting the State’s argument that, if a warning is properly given to a driver, then any subsequent misinformation given to the driver should be harmless. The court stated: “This is contrary to the well-established principle that an appeal of a suspension imposed pursuant to this section will be sustained if the driver proves by competent evidence that he was unable to make a knowing and conscious refusal. In the present case, the trial court determined that the arresting officer’s statement about the availability of a special license prevented [the driver] from making a knowing and conscious refusal, and we agree.” (Citation omitted). Id., 135 Pa.Commw. 297, 580 A.2d at 916 .

Even where there is no requirement that an officer give any explanation of the accused’s right to refuse or of the consequences of that refusal, it has been observed that “[t]he officer administering the test may not mislead the accused.... ” State v. Compton, 233 Kan. 690 , 664 P.2d 1370, 1375 (1983). The compelling need for clarity in communicating the' consequences of refusal to take an alcohol