Motor Vehicle Administration v. Atterbeary

BATTAGLIA, Judge. Petitioner, Motor Vehicle Administration (hereinafter! “MVA”), asks us to consider what constitutes a refusal to submit to a blood alcohol concentration test in light of the two hour time limitation for such tests imposed by Maryland Code (1974, 1998 Repl.Vol.), Section 10-303 of the Courts and Judicial Proceedings Article, where the individual suspected of driving while intoxicated has expressed a desire to consult with an attorney prior to making a test decision. Respondent, Knowlton Atterbeary, filed a cross-petition requesting consideration of what conduct constitutes driving or attempting to drive for purposes of triggering the implied consent provisions of Maryland Code (1977, 1999 Repl.Vol.), Section 16-205.1(a)(2) of the Transportation Article. I. Facts In the early morning hours of April 22, 2000, the Montgomery County Police received a call from fire and rescue personnel requesting assistance with an individual, later determined to be the respondent, Atterbeary, who was slumped behind the wheel of his car at 3121 Automotive Boulevard in front of the Herb Gordon Oldsmobile dealership.

Montgomery County Police Officers Mondini and Williams responded to the call. Upon arrival at the scene, Officer Mondini observed Atter-beary sitting in the driver’s seat of his Mercedes with the keys in the ignition, the engine running, and the dome light illumi ⁴⁸⁵ nated. Officer Mondini was advised by the Fire/Rescue personnel that they had attempted to speak to Atterbeary, but that he refused to get out of his car and would only roll down the window about an inch. Officer Mondini iterated his need to speak with Atterbeary twice, after which Atterbeary rolled down the window far enough for the officer to reach inside and unlock the door.

Officer Mondini noticed Atterbeary’s slurred speech and bloodshot eyes as well as a strong odor of alcohol emanating from him. Officer Mondini attempted to administer several field sobriety tests to Atterbeary, including the horizontal gaze nystag-mus, walk and' turn, and one-leg stand, to no avail. Each time the officer gave the instruction to perform the test, Atterbeary responded that he did not understand. When the officer repeated the instructions, Atterbeary said he could not hear the officer.

After the third attempt at clarifying the instructions, Atterbeary performed each test and failed them. Thereafter, Officer Mondini took Atterbeary to the police station in Silver Spring. At the police station, according to the testimony of Officer Mondini, the officer read the DR-15 Form 1 to Atterbeary, and Atterbeary indicated his willingness to take the breathal- ⁴⁸⁶ izer test. The officer then asked Atterbeary to sign the consent provision on the DR-15 Form acknowledging his willingness to submit to- the test.

At that point, Atterbeary stated that he did not understand the DR-15 Form and wanted to read it for himself. Officer Mondini gave the form to Atterbeary and then left the room for several minutes. After Officer Mondini returned, Atterbeary informed the officer that he wished to speak to an attorney. When Officer Mondini asked Atterbeary for the name and number of the attorney, Atterbeary stated that he did not have one at the moment.

Officer Mondini stated that he asked “him again to sign [the form] and he refused to sign it, which to me he refused to take the breath test.” Officer Mondini then asked Atterbeary several routine questions, such as his date of birth and social security number, as part of the officer’s completion of the DR-15A Form. 2 Atterbeary responded to each question by stating that he wanted to speak to an attorney. In response to each of the unanswered questions on the DR-15A Form, Officer Mondini filled in the word “refused.” 3 ⁴⁸⁷ On the form, Officer Mondini had initially checked the box which stated that Atterbeary agreed to submit to an alcohol concentration test, but then crossed it out and marked the refusal box instead. No attempt was ever made to administer the breathalyzer test to Atterbeary. Officer Mondini issued a citation to Atterbeary for driving while intoxicated, called him a cab and released him.

Atterbeary requested and hearings were held before an Administrative Law Judge (ALJ), on July 26 and October 24, 2000. 4 At the hearings, Atterbeary objected to entering Officer Mondini’s certification in evidence, because he asserted that the certification did not adequately describe the location of the offense other than to state that it took place in Montgomery County. He argued, therefore, that the MVA had failed to make a prima facie showing that Atterbeary was driving or attempting to drive on a public highway or private property used by the public in general. Throughout his testimony, Atterbeary also maintained that he never refused to sign the form or refused to take a breathalyzer test. In his findings of fact, the ALJ stated: Licensee asserts that road where he was approached by officer is a private road.

I disagree — evidence by officer and by photo is that it is a public road used by the public in general. Licensee asked for an attorney. When asked for name & phone number he said he did not have one at the moment. I conclude Licensee did not have an attorney to call.

Thereafter licensee kept answering he wanted to talk with an attorney to all questions. I conclude therefore he refused to take the test. ⁴⁸⁸ He concluded that Officer Mondini had a reasonable basis pursuant to Section 16-205.1 of the Maryland Transportation Article to believe that Atterbeary was driving or attempting to drive while intoxicated or under the influence of alcohol, and that at the time of the incident, Atterbeary was located on a highway or private property which was used generally by the public. Atterbeary filed a Petition for Judicial Review of the ALJ’s decision in the Circuit Court for Howard County 5 pursuant to Maryland Code (1984, 1999 Repl.Vol.), Section 10-222 of the State Government Article. The Circuit Court found that there was substantial evidence to support the ALJ’s finding that Atterbeary was driving or attempting to drive while intoxicated on a public road.

Nevertheless, the Circuit Court concluded that Officer Mondini had acted in haste in determining that Atterbeary had refused the breathalyzer test: With regard, however, to the reasonable opportunity to contact an attorney, I think Officer Mondini, in plain English, and no pun intended, jumped the gun. I think the evidence — there is no evidence in the transcript that says, look, we need to get a breathalyzer operator in here. We need to have x-amount of minutes in order to start up the machine and so forth. There is no question that an individual can thwart or attempt to thwart the giving of the intoximeter test or other breath test or test by blood, by pushing the two-hour limit.

But there is no evidence of that here. In other words, there is no testimony that I found in the record that where Officer Mondini said, look, we went back to the Silver Spring station, but I would have, at that hour of the morning, I would have had to call in an intoximeter ⁴⁸⁹ person, and I told the defendant that that’s going to take 22 minutes, approximately, and it’s going to take x-amount of minutes to start up the machine, et cetera, et cetera. There is nothing in there. So when you take a look at the time of arrest, and the time that the officer determined a refusal, it was just too quick.

And, therefore, the Court, while it agrees that the State has no obligation to provide information specific to an arrestee of a name, or address, or phone number of an attorney, basically, in my opinion, Officer Mondini should have said, you know, Mr. Atterbeary, here’s the phone, call whoever you want. And if Mr. Atterbeary could not get in touch with an attorney, the officer should have said, Mr. Atterbeary, I need to have your election by X and X time. I have to take the test within the two hours. And if you don’t tell me by such a[nd] such a time, that’s going to thwart that, and 1 have to then count that as [a] refusal.

Basically, Officer Mondini just went too far — too fast, I should say. It may have been the same outcome, but I don’t know that. So on that issue it’s reversed. Accordingly, on June 21, 2000, the Circuit Court entered an order reversing the ALJ’s decision to suspend Atterbeary’s license, and remanded the matter to the MVA for adjustment in compliance with the order.

MVA filed a petition for writ of certiorari and Atterbeary filed a conditional cross-petition for writ of certiorari. We granted both petitions, Motor Vehicle Admin. v. Atterbeary, 365 Md. 472 , 781 A.2d 778 (2001) in order to consider the following questions, which we have rephrased: 1. Where a suspected drunk driver orally indicates his willingness to submit to a test of blood alcohol concentration under Section 16-205.1 of the Maryland Transportation Article, and then repeatedly requests to speak with an attorney prior to signing a form consenting to such a test, does his subsequent conduct vitiate his earlier consent? ⁴⁹⁰ 2. Was an occupant of a vehicle in actual physical control of a vehicle constituting driving or attempting to drive under Section 16-205.1 where the occupant was found awake, behind the wheel of the car with the engine running and parked along the side of a public road when the police responded to the scene? 3.

Does a police officer have “reasonable grounds” under Section 16-205.1 to forcibly investigate the condition of a motorist who is “slumped over the wheel” of a parked vehicle? Based on our responses to the first two questions presented for our review, we need not consider the third issue.

II

Discussion A. Standard of Review Section 10-222 of the State Government Article of the Maryland Code, permits the following actions upon judicial review of the administrative agency’s decision: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision-maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. Md.Code (1984, 1999 Repl.Vol.), § 10-222(h) of the State Gov’t. Art. Upon judicial review, the Circuit Court is limited to determining whether there was substantial evidence on the ⁴⁹¹ record as a whole to support the agency’s findings of fact and whether the agency’s conclusions of law were correct. See Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380 (1999)(quoting United Parcel Service, Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994)).

In reviewing the administrative agency’s decision, we apply the same statutory standards as the Circuit Court. See Maryland Div. of Labor and Ind. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 416 , 784 A.2d 534, 539 (2001)(quoting Gigeous v. E. Correctional Inst., 363 Md. 481, 495 , 769 A.2d 912, 921 (2001)). B. What Constitutes A Refusal We now turn our attention to the merits of MVA’s question of what constitutes a refusal to take a blood alcohol concentration test under Section 16-205.1 of the Transportation Article.

While the Circuit Court emphasized the time constraints of the testing procedure in determining whether a refusal occurred, we will decide the issue based upon what constitutes a refusal to take the test, which, in this case did not occur. Section 16-205.1(a)(2) sets forth the general testing policy applicable to individuals who are suspected of driving or attempting to drive while intoxicated: 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 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 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. ⁴⁹² McLCode, § 16-205.1(a)(2) of the Transp. Art. (1977, 1999 RepLVol.). 6 Section 10-303(a) of the Courts and Judicial Proceedings Article imposes time limitations on obtaining blood alcohol concentration test results from suspected drunk drivers: (a) Alcohol concentration. — (1) A specimen of breath or 1 specimen of blood may be taken for the purpose of a test for determining alcohol concentration. .(2) For the purpose of a test for determining alcohol concentration, the specimen of breath or blood shall be taken within 2 hours after the person accused is apprehended. “We have consistently recognized that the statutory provisions enacted to enforce the State’s fight against drunken driving, namely Md.Code ... § 10-302 to -309 of the Courts and Judicial Proceedings Article and § 16-205.1 of the Transportation Article, were enacted for the protection of the public and not primarily for the protection of the accused.” Motor Vehicle Admin. v. Shrader, 324 Md. 454, 464 , 597 A.2d 939, 943 (1991); see State v. Moon, 291 Md. 463, 477 , 436 A.2d 420, 427 (1981), cert. denied, 469 U.S. 1207 , 105 S.Ct. 1170 , 84 L.Ed.2d 321 (1985). The DR-15 Form, which Officer Mondini read to Atterbeary and which Atterbeary later read for himself, advises individuals suspected of driving while intoxicated of the consequences of refusing to submit to testing for blood alcohol concentration.

There is an automatic 120-day suspension for a test ⁴⁹³ refusal. See Md.Code § 16-205.1 (b) of the Transp. Art. If an individual submits to the test and the result is an alcohol concentration in excess of the statutory limit, the suspension for a first offense is forty-five days, or ninety days for a second or subsequent offense. 7 See id. The language of the statute, which allows suspects to withdraw initial refusals to take the test, reflects the legislative policy in favor of obtaining test results: (g) Withdrawal of initial refusal to take test; subsequent consent. — (1) An initial refusal to take a test that is withdrawn as provided in this subsection is not a refusal to take a test for the purposes of this section.

(2) A person who initially refuses to take a test may withdraw the initial refusal and subsequently consent to take the test if the subsequent consent: (i) Is unequivocal; (ii) Does not substantially interfere with the timely and efficacious administration of the test; and (iii) Is given by the person: 1. Before the delay in testing would materially affect the outcome of the test; and 2. A. For the purpose of a test for determining alcohol concentration, within 2 hours of the person’s apprehension; Md.Code, § 16-205.1(g) of the Transp. Art.; see Embrey v. Motor Vehicle Admin., 339 Md. 691, 697 , 664 A.2d 911, 914 (1995)(quoting Motor Vehicle Admin. v. Vermeersch, 331 Md. 188, 194 , 626 A.2d 972, 975 (1993)).

A person, nevertheless, ⁴⁹⁴ cannot be compelled to submit to a chemical test for intoxication. See Md.Code, § 10-309, Cts. & Jud. Proc. Art. 8 Although Section 16-205.1 does not specifically provide that an individual suspected of or arrested for drunk driving has a right to confer with counsel prior to deciding whether to submit to a breathalyzer test, we have held: the due process clause of the Fourteenth Amendment, as well as Article 24 of the Maryland Declaration of Rights, requires that a person under detention for drunk driving must, on request, be permitted a reasonable opportunity to communicate with counsel before submitting to a chemical sobriety test, as long as such attempted communication will not substantially interfere with the timely and efficacious administration of the testing process.

Sites v. State, 300 Md. 702, 717-18 , 481 A.2d 192, 200 (1984). The limited right to confer or attempt to confer with counsel prior to deciding whether to submit to a breathalyzer test as announced in Sites was not meant to give suspected drunk drivers the ability to postpone administration of the test in order to achieve more favorable results. See Sites, 300 Md. at 714 , 481 A.2d at 198 (quoting People v. Gursey, 22 N.Y.2d 224 , 292 N.Y.S.2d 416 , 239 N.E.2d 351, 353 (1968))(“The privilege of consulting with counsel concerning the exercise of legal rights, should not, however, extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses”). Rather, we explicitly stated: ⁴⁹⁵ if counsel cannot be contacted within a reasonable time, the arrestee may be required to make a decision regarding testing without the advice of counsel.

We emphasize that in no event can the right to communicate with counsel be permitted to delay the test for an unreasonable time since, to be sure, that would impair the accuracy of the test and defeat the purpose of the statute. Id. at 718, 481 A.2d at 200 . Thus, our decision in Sites only recognized a due process right so that an individual who requests to consult with counsel for the purpose of receiving advice as to whether to submit to a breathalyzer test, must be permitted a reasonable opportunity to do so. See id. at 712 , 481 A.2d at 197 (explaining that prior to being formally charged, there can be no attachment of the Sixth Amendment right to counsel)(citing Webster v. State, 299 Md. 581 , 474 A.2d 1305 (1984)); see also Darrikhuma v. State, 81 Md.App. 560, 571 , 568 A.2d 1150, 1155 (1990)(explaining that under the holdings of Sites and Brosan v. Cochran, infra, 307 Md. 662 , 516 A.2d 970 (1986), “a person arrested for drunk driving has a right to consult with an attorney prior to formulating a decision on whether or not to take a breathalyzer test — if that person wakes such a request to consult with an attorney ”)(emphasis in original).

Accordingly, “[w]e recognized in Sites neither a right of counsel in the Fifth nor Sixth Amendment sense, but rather a deprivation of the right of due process by the unnecessary denial of a specific request for counsel.” McAvoy 314 Md. at 519, 551 A.2d at 880. In order to protect the licensee’s due process right, the right to consult with counsel prior to deciding whether to submit to a breathalyzer test must be meaningful and comport with traditional notions of essential fairness. While there still exists an unrelenting desire “to rid our highways of the drunk driver menace,” Willis v. State, 302 Md. 363, 370 , 488 A.2d 171, 175 (1985), a “default” refusal to submit to the test cannot be permitted to stand on these facts. There is no bright line rule which will effectively ensure that the due process right to communicate with counsel ⁴⁹⁶ prior to submitting to a breathalyzer test as recognized in Sites is heeded in all circumstances without risking being overbroad or under-inclusive.

Instead, determining whether an individual has been denied his or her due process right to communicate with counsel prior to submitting to a breathalyzer test requires a case-by-case analysis of the facts and circumstances involved. See Sites, 300 Md. at 718 , 481 A.2d at 200 . We have provided some guidance as to what types of communication would be considered an exercise of the Sites due process right to communicate with counsel. For example, in Brosan v. Cochran, 307 Md. 662 , 516 A.2d 970 (1986), we held that an individual who timely requests to consult with an attorney and have the attorney administer an independent breathalyzer test may do so in order to make an informed decision as to whether to submit to the test administered by the police.

Brosan, 307 Md. at 673-74 , 516 A.2d at 976 . We further commented that the Sites due process right may encompass telephonic contact and / or face-to-face consultation. See id. at 669, 516 A.2d at 974 . The due process right, however, does not confer upon suspects the right to be informed that they can have a preliminary test performed by a non-law enforcement person prior to deciding whether to submit to the official test administered by the police.

See Darrikhuma, 81 Md.App. at 572-74 , 568 A.2d at 1155-57 . Nevertheless, we note that in requesting to confer with counsel, a suspected drunk driver may seek advice upon any aspect of the DR-15 Form, which in addition to advising individuals of the consequences of a test refusal, sets forth the sanctions for having a blood alcohol concentration in excess of the statutory limit, explains the administrative review process, and advises of the potential