Janes v. State

WILNER, Judge. The issue before us is collateral estoppel—whether the State is precluded from prosecuting appellant, Vincent Janes, for driving while intoxicated and other related offenses because, in an earlier proceeding before the Motor Vehicle Administration (MVA), conducted to determine whether Janes’s driver’s license should be suspended by reason' of his refusal to take a breath test, an administrative law judge determined that Janes was not driving the vehicle. We shall hold that the State is not precluded from proceeding with the criminal case. ²⁸⁷ RELEVANT STATUTORY FRAMEWORK There are three principal statutes bearing on Maryland’s effort to keep drunk and drugged drivers off the State’s roads, each being codified in the Transportation Article of the Maryland Code (1998 Repl.Vol.). The first— § 21-902—prohibits a person from driving or attempting to drive (1) while intoxicated (§ 21-902(a)(l)), (2) while intoxicated per se (§ 21-902(a)(2)), 1 (3) while under the influence of alcohol (§ 21-902(b)), (4) while so far under the influence of any drug, any combination of drugs, or a combination of a drug or drugs and alcohol that the person cannot drive a vehicle safely (§ 21-902(c)), or (5) while under the influence of a controlled dangerous substance (§ 21—902(d)).

A violation of any of those provisions is a misdemeanor punishable by fine and imprisonment, the severity of the punishment depending on the offense and whether the person is a repeat offender. See § 27-101. The second statute is § 16-205, which permits, but does not require, MVA to revoke or to suspend for varying periods the driver’s license of a person convicted of an offense under § 21-902. Revocation is allowed for the more serious offenses—those under § 21-902(a) or (d)—and for a conviction under § 21-902(b) or (c) if, within the three years preceding the conviction, the person had been convicted of any combination of two or more violations of § 21-902.

Otherwise, suspension for up to 60 days is allowed for a first conviction, and of up to 120 days for a second conviction. A revocation or suspension under § 16-205 can occur only after a criminal conviction; it is a collateral, civil consequence of the conviction. 2 ²⁸⁸ The third statute is § 16-205.1, which provides for the suspension of a person’s driver’s license for either (1) refusing to take a test for the presence of alcohol or drugs upon request of a police officer having reasonable grounds to believe that the person has committed an offense under § 21-902, or (2) for taking a test that reveals an alcohol concentration of 0.10 or more. This is the statute principally at issue here. Unlike § 16-205, it is not tied to a criminal conviction but operates independently of both § 21-902 (and § 27-101) and § 16-205.

An appreciation of the collateral estoppel argument made by appellant requires a deeper analysis of § 16-205.1. The precursor of § 16-205.1 was first enacted in 1969, by 1969 Md. Laws, ch. 158. Under that law, each applicant for the issuance or renewal of a driver’s license had to sign a statement under oath or affirmation consenting (1) to take a chemical test to determine the alcoholic content of his or her blood, breath, or urine if detained upon suspicion of driving while intoxicated or impaired by alcohol, and (2) to having his or her driver’s license suspended for up to 60 days for refusing to take the test. If the person, upon being detained by an officer upon reasonable suspicion that the person was driving while intoxicated or impaired, refused to take the test upon the officer’s request, MVA had the authority, after a hearing upon 15 days notice, to suspend the person’s driver’s license for up to 60 days.

Suspension was discretionary, not mandatory, however. With a number of amendments added over the ²⁸⁹ years, that law remained in effect until replaced by the 1989 law now before us. See 1989 Md. Laws, ch. 284. Section 16—205.1(a)(2) now provides, in relevant part, that 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 ... to take a test if the person should be detained on suspicion of driving [in violation of § 21-902].” 3 Notwithstanding the statutorily implied consent, § 16—205.1(b)(1) makes clear that a person “may not be compelled to take a test.” If the person refuses to take the test, however, § 16-205.1(b) requires MVA to suspend the person’s driver’s license for 120 days, if it is the person’s first offense, and for one year, if it is the person’s second or subsequent offense.

The mandated suspension, for the longer period of time, was one of the major changes effected by the 1989 law. Another significant change made by the 1989 law was a mandated suspension if the person takes the test and the test reveals an alcohol concentration of 0.10 or more, but the suspensions in that situation are for shorter periods (45 days for a first offense, 90 days for a subsequent offense). Section 16-205.1 goes on, at considerable length, to set forth procedures and requirements relating to the test and to the consequences both of refusing to take it and of taking and failing it. With an exception not relevant here, § 16-205.1(b)(2) provides that, if a police officer stops or detains “any person who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle [in violation of § 21-902],” the officer must (1) detain the person, (2) request that the person submit to a test, and (3) advise the person of the administrative sanctions imposed, both for refusing to take the test and for a test result indicating an alcohol concentration of 0.10 or more.

If the ²⁹⁰ person refuses to take the test, or takes a test that reveals an alcohol concentration of 0.10 or more, the law imposes seven additional duties on the officer: (1) to confiscate the person’s driver’s license; (2) acting on behalf of MVA, to serve an order of suspension on the person; (3) to issue the person a temporary license to drive; (4) to inform the person that the temporary license allows the person to drive for only 45 days; (5) to inform the person of his or her right to request a hearing before MVA “to show cause why the driver’s license should not be suspended,” (6) to advise the person of the administrative sanctions that will be imposed if the person refuses to request or attend such a hearing or upon an adverse finding by the hearing officer; and (7) within 72 hours after issuing an order of suspension, to send the confiscated license, a copy of the order, and a sworn statement to MVA. The sworn statement required by § 16-205.1(b)(2) must contain three assertions—that the officer had reasonable grounds to believe that the person had been driving in violation of § 21-902, that the person either refused to take a test when requested by the officer or submitted to a test that indicated an alcohol concentration of 0.10 or more, and that the person was advised of the sanctions for refusing to take the test and for taking and failing the test. Section 16-205.1(f) permits a person, within certain time limits, to submit a written request for hearing before an administrative law judge acting as an MVA hearing officer. If a hearing is not timely requested, MVA is required to impose the mandated suspension.

If a hearing is timely requested, subject to long and detailed provisions regarding postponements, one must be held within 45 days after receipt of the request. The hearing is to be conducted as a contested case hearing under the Administrative Procedure Act. 4 Section 16-205.1(f)(7) limits the issues, however, to the following: ²⁹¹ “1. Whether the police officer who stops or detains a person had reasonable grounds to believe the person was driving or attempting to drive [in violation of § 21-902]; 2. Whether 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.

Whether the police officer requested a test after the person was fully advised of the administrative sanctions that shall be imposed ...; 4. Whether the person refused to take the test; 5. Whether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of 0.10 or more at the time of testing; or 6. If the hearing involves disqualification of a commercial driver’s license, whether the person was operating a commercial motor vehicle.” Although the person charged may present evidence and may compel testimony by subpoena, the sworn statement of the officer, submitted under § 16—205.1(b)(2)(vii), is prima facie evidence of a test refusal.

Section 16—205.1(f)(8) requires MVA to suspend the license, after a hearing, if (1) “[t]he police officer who stopped or detained the person had reasonable grounds to believe the person was driving or attempting to drive [in violation of § 21-902]”; (2) there was evidence of the use by the person of alcohol, drugs, or a combination of drugs and alcohol; (3) “[t]he police officer requested a test after the person was fully advised of the administrative sanctions that shall be imposed”; and (4) the person refused to take the test or took and failed the test. FACTUAL AND PROCEDURAL BACKGROUND Appellant, his wife, Diane, and his friend, Ronald Burke, spent the midnight hours of December 5—6, 1996, drinking at ²⁹² a tavern in Charles County. Sometime after 1:00 a.m., they left the tavern in two vehicles. Appellant and Burke were in a van; they were followed by Ms. Janes.

Not long after they departed the tavern, the van smashed into a telephone pole. Trooper J.A. Barth, of the Maryland State Police, arrived at the scene of the accident at 1:23 a.m., approximately five to ten minutes after the accident occurred. Personnel from the county fire department and officers from the Sheriffs Office were already present. Trooper Barth found Burke unconscious in the front passenger seat of the van.

Janes was sitting on the rear bumper with the keys to the vehicle in his hand. He smelled of alcohol, had bloodshot eyes and slurred speech, could not stand without assistance, and failed all of the field sobriety tests that Barth administered. At some point, Burke regained consciousness and informed one of the sheriffs deputies, who informed Barth, that Janes had been driving the van when the accident occurred. Barth placed Janes under arrest and transported him to a police station to take a breath test.

In his police report, Trooper Barth stated that Janes refused to take the test, although in testimony before the administrative law judge, he said that Janes was too intoxicated to give a sufficient breath sample. In either event, pursuant to § 16-205.1, Trooper Barth apparently confiscated Janes’s driver’s license and, on behalf of the MVA, served on him a 45-day suspension of the license. Barth issued six citations, charging Janes, among other things, with driving while intoxicated or under the influence of alcohol, violating a license restriction, and driving with alcohol in his blood in violation of a court order. The charges were filed in the District Court on December 6,1996.

A hearing was initially scheduled before the MVA on February 19, 1997, presumably at Janes’s request, to determine whether Janes’s driver’s license should be suspended because of his refusal to take the breath test. That hearing was postponed to March 28, in order to allow the State to summons Trooper Barth to testify. The March 28 hearing also was postponed when Trooper Barth failed to appear and it ²⁹³ was determined that he had not been properly summoned. The hearing finally was conducted on May 8.

Trooper Barth, who was the State’s only witness, testified as indicated above. Janes’s sole defense was that he was not driving the van when the accident occurred—that Burke had been the driver. He testified to that effect, claiming that, when leaving the tavern, he asked Burke to drive the van. Burke, who said that he had no recollection of telling anyone that Janes had been the driver, corroborated Janes’s story.

Ms. Janes also testified. She said that she arrived at the scene just after the accident occurred, that she pulled her husband out of the front passenger’s seat, and that she attempted to pull Burke from the driver’s seat but was unable to do so because the driver’s door could not be opened. Although acknowledging that Burke had, indeed, told Trooper Barth that Janes had been driving, she contended that both she and her husband had told him that that was not the case. In light of this conflicting testimony, and noting that the only witnesses to the accident were Janes and Burke, the administrative law judge found from their testimony that Janes “was not driving his vehicle when the accident occurred on December 6, 1996.” 5 That finding, he held, precluded any sanction under § 16-205.1.

The ALJ reasoned that the law allowing suspension for refusal to take a test stemmed from § 16~205.1(a)(2)—the implied consent law—which applied only to a person “who drives or attempts to drive a motor vehicle,” and that, as Janes had not been driving the van, he was not subject to the sanction. That ruling was filed on June 4, 1997. MVA acquiesced in the ruling and did not seek judicial ²⁹⁴ review. 6 The criminal case, filed December 6, 1996, was set for trial in the District Court on March 13, 1997, but was postponed to May 22 at the request of defense counsel. On May 22, Janes prayed a jury trial, thereby transferring the case to the Circuit Court for Charles County.

On August 5, 1997—the date set for trial in the circuit court—Janes moved to dismiss the charges on the ground that the ALJ’s finding that Janes was not the driver precluded the State from relitigating that issue in the criminal case. He relied on Bowling v. State, 298 Md. 396 , 470 A.2d 797 (1984) as authority for that proposition. Caught by surprise, the State argued in response that that finding by the ALJ was mere dicta, not necessary to the result he reached. Although the State’s argument in this regard was premised on the assertion that the ALJ could have denied a suspension upon a finding that Janes’s failure to provide a sufficient sample of breath did not constitute a refusal to take the test (see Borbon v. MVA, 345 Md. 267 , 691 A.2d 1328 (1997)) and that he did not, therefore, have to reach the issue of whether Janes was actually driving the van, the court found a different basis for not applying collateral estoppel.

Looking at § 16-205.1(f)(7), the court observed that the issue before the ALJ was not whether Janes was driving but whether the officer had reasonable grounds for believing that he was, and that a finding on the ultimate question of whether he was the driver was beyond the ALJ’s authority. For that reason, it denied the motion to dismiss. On the premise that collateral estoppel, applied to preclude relitigation in a criminal case of an issue previously decided in an administrative agency proceeding, constituted a claim of Constitutional double jeopardy, Janes filed an immediate appeal from the interlocutory ruling. See Neal v. State, 272 Md. ²⁹⁵ 323, 322 A.2d 887 (1974); Bowling v. State, supra, 298 Md. 396 , 401 n. 4, 470 A.2d 797 , 799 n. 4.

We granted certiorari before resolution of the appeal in the Court of Special Appeals. DISCUSSION Collateral estoppel, or issue preclusion, began life and retains life as a common law doctrine. A common and well-established articulation of the doctrine is that “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Murray International v. Graham, 315 Md. 543, 547 , 555 A.2d 502, 504 (1989), quoting from Restatement (Second) of Judgments, § 27 (1982). The functions of this doctrine, and the allied doctrine of res judicata, are to avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.

Graham, supra, 315 Md. at 547 , 555 A.2d at 504 , citing Montana v. United States, 440 U.S. 147, 153-54 , 99 S.Ct. 970, 973-74 , 59 L.Ed.2d 210, 217 (1979). Although originating in civil litigation, the common law doctrine has long been applied to preclude the relitigation in a criminal case of an issue previously resolved by a valid and final judgment entered by a court in either a civil or criminal case. See Ashe v. Swenson, 397 U.S. 436, 443 , 90 S.Ct. 1189, 1194 , 25 L.Ed.2d 469, 475 (1970); Yates v. United States, 354 U.S. 298 , 77 S.Ct. 1064 , 1 L.Ed.2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978); Bowling v. State, supra, 298 Md. at 401 , 470 A.2d at 799 . In Ashe v. Swenson, the Supreme Court held the common law doctrine, as it had been applied in criminal cases under Federal criminal law, to be “embodied in the Fifth Amendment guarantee against double jeopardy,” 397 U.S. at 445 , 90 S.Ct. at 1195 , 25 L.Ed.2d at 476 , and thus applicable through the Fourteenth Amendment as a constitutional limitation in State court proceedings.

See Bowling v. State, supra, ²⁹⁶ 298 Md. at 401 , 470 A.2d at 799 ; Ferrell v. State, 318 Md. 235, 241 , 567 A.2d 937, 940 , cert. denied, 497 U.S. 1038 , 110 S.Ct. 3301 , 111 L.Ed.2d 810 (1990). Although the Maryland Constitution does not contain a counterpart to the Fifth Amendment prohibition against double jeopardy, that prohibition has long existed as a matter of Maryland common law. Couser v. State, 256 Md. 393 , 260 A.2d 334 (1970); Neal v. State, supra, 272 Md. at 327 , 322 A.2d at 889 ; Middleton v. State, 318 Md. 749 , 569 A.2d 1276 (1990); State v. Griffiths, 338 Md. 485 , 659 A.2d 876 (1995). In Maryland, therefore, collateral estoppel is applicable in criminal proceedings on three bases—as an independent common law doctrine, as a component of Fifth Amendment double jeopardy, and as a component of Maryland common law double jeopardy.

Because our common law prohibition against double jeopardy, on the one hand, has generally been construed consistently with the Federal Constitutional prohibition, 7 but, on the other, is subject to revision by the General Assembly 8 , we shall not distinguish between them in this case and instead, for convenience, view collateral estoppel in only two contexts—as an independent common law doctrine and as an aspect of double jeopardy. Both parties recognize the dual nature of this doctrine. Relying on cases dealing with collateral estoppel as a common law doctrine, Janes asserts that preclusion of the criminal proceeding may be founded on the ruling of an administrative agency and is not limited to judgments entered by a court. In ²⁹⁷ United States v. Utah Constr.

Co., 384 U.S. 394, 422 , 86 S.Ct. 1545, 1560 , 16 L.Ed.2d 642, 661 (1966), the Supreme Court observed that “[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” In Batson v. Shiflett, 325 Md. 684 , 602 A.2d 1191 (1992), we noted that the same principle had been applied to collateral estoppel and, accordingly, held that “agency findings made in the course of proceedings that are judicial in nature should be given the same preclusive effect as findings made by a court.” Id. at 702 , 602 A.2d at 1200 . In deciding whether an administrative agency decision should be given preclusive effect, we adopted the three-prong test first enunciated in Exxon Corp. v. Fischer, 807 F.2d 842, 845-46 (9th Cir.1987): “(1) whether the [agency] was acting in a judicial capacity; (2) whether the issue presented to the ... court was actually litigated before the [agency]; and (3) whether its resolution was necessary to the [agency’s] decision.” Batson, supra, 325 Md. at 701 , 602 A.2d at 1200 . The State has a triple response to the proposition that, under a Bowling/Batson analysis, the administrative determination that Janes was not the driver precludes the criminal prosecution. First, citing State v. Jones, 340 Md. 235 , 666 A.2d 128 (1995), it contends that double jeopardy-based collateral estoppel does not arise from proceedings under § 16-205.1.

Second, although it acknowledges that the common law doctrine of collateral estoppel may arise from administrative agency decisions, it urges that, in this instance, the common law has been overridden by statute—that § 16-205.1(Z) manifests a legislative declaration that the administrative and criminal proceedings are entirely separate and that the decision in one does not preclude prosecution of the other. Finally, it presses the point made by the circuit court, that the administrative law judge’s finding was mere dicta, not necessary to his decision and, indeed, that the issue of whether Janes was actually driving the van was not really before the ²⁹⁸ ALJ. Janes, of course, has a different view on each of those responses, although he does not address the effect of State v. Jones, supra. The issue presented by Janes, though new to Maryland, despite its latency for nearly 30 years, has been addressed elsewhere and was recently addressed by the Court of Special Appeals in Reid v. State, 119 Md.App. 129 , 704 A.2d 473 (1998).

As we shall see, there is some division among courts on the general question of whether a favorable finding by an administrative agency can ever serve, on collateral estoppel grounds, to preclude a subsequent criminal prosecution involving the same issue. The courts that have considered the question in the context presented here, however—whether a favorable ruling in an administrative proceeding similar to that conducted under § 16-205.1 will bar a subsequent criminal prosecution for driving under the influence of alcohol or while intoxicated—have universally rejected the kind of argument made by Janes. Different rationales have been applied in reaching that decision. Application of Double Jeopardy-Based Collateral Estoppel In State v. Jones, supra, 340 Md. 235 , 666 A.2d 128 , the defendant was arrested for driving while intoxicated.

He consented to take the breath test, which revealed an alcohol concentration well in excess of 0.10. As a result, in August, 1994, an MVA administrative law judge, acting under § 16-205.1, suspended his driver’s license for 30 days. In November, 1994, Jones was brought to trial in the district court and convicted on the criminal charge. On appeal to the circuit court, he moved to dismiss the charge on double jeopardy grounds.

The circuit court found merit in his argument and granted his motion. We reversed. It is important to understand the context in which the double jeopardy issue was presented in Jones . As Chief Judge Murphy pointed out, Jones’s argument was founded solely on the dual punishment aspect of