Motor Vehicle Administration v. Baptist

⁵⁸ HOLLANDER, Judge. The Maryland Department of Transportation, Motor Vehicle Administration (“MVA”), appellant, challenges an Order issued by the Circuit Court for Montgomery County, imposing a stay, a temporary restraining order, and a final injunction barring the MVA’s 90-day suspension of the driving privileges of Michael Baptist, appellee. 1 The MVA had imposed the suspension pursuant to Md.Code (2006 Repl.Vol., 2007 Supp.), § 16—205.1(b)(1) of the Transportation Article (“TR”), after a breath test showed that appellee was driving with an alcohol concentration of .20, in violation of TR § 21-902. In lieu of the suspension, the circuit court ordered the MVA to issue Baptist an ignition-interlock restricted license, even though Baptist failed to timely complete the statutory requirements for participation in the MVA’s Ignition Interlock System Program (the “Program”). See TR § 16-205.1(b)(3)(vii); TR § 16-404.1.

This appeal followed. The MVA poses two questions, which we have reordered: I. Did the circuit court exceed its limited authority to intervene by injunction in agency action, and fail to adhere to TR § 16-205.1, when it ordered the MVA to stay a statutorily mandated suspension of Baptist’s license ..., despite Baptist’s concession that he failed through inattention and neglect to complete within 30 days the actions required to elect participation in the interlock program?

II

Did the circuit court fail to comply with the Maryland Rules and with constitutional principles of due process when it entered a final injunction in a civil action only three days after the filing of the complaint, and when the entire proceeding consisted of a twenty-minute telephone conversation on the merits of Baptist’s unserved pleadings? ⁵⁹ For the reasons that follow, we shall reverse the Order issued by the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On November 9, 2007, Montgomery County Police stopped Baptist on suspicion of driving under the influence of alcohol. 2 Baptist consented to a breath test, which indicated that he had an alcohol concentration of .20 grams of alcohol per 210 liters of breath. Accordingly, appellee was under the influence per se, see TR § 11-174.1, 3 and was subject to a license suspension under TR § 16-205.1(b)(l)(i)(2)(A). That section provides that, for a first offense, the driver’s license of a person whose alcohol concentration is .15 or more shall be suspended for a period of 90 days.

On the same date, the police issued Baptist an “Order of Suspension,” which stated: “[Y]ou are hereby notified that your Maryland Driver’s License/Privilege will be suspended effective on the Forty-sixth (46) day from the above ‘Issue Date’ because ... you submitted to a test indicating an alcohol concentration of. 15 or more.” In addition, the police provided Baptist with written notification that, in lieu of suspension, or a request for a hearing on the suspension, Baptist could elect to participate in the MVA’s Program for one year, pursuant to TR § 16-205.1(b)(3)(vii), if he met certain eligibility requirements and completed enrollment in the Program within thirty days from the date of the Order of Suspension, i.e., by December 9, 2007. These requirements included installation of the interlock device in appellee’s vehicle; his election of the ⁶⁰ Program, in writing; and surrender of appellee’s driver’s license, in exchange for the issuance of a new license by the MVA, restricting' appellee to driving vehicles equipped with an ignition interlock device. It is undisputed that an interlock device was timely installed on Baptist’s vehicle, but Baptist did not timely submit his written election form, turn in his driver’s license, or obtain a restricted license. Baptist claimed below that the interlock device was installed on November 26, 2007.

He then went to the MVA on December 24, 2007, because he did not receive anything in the mail from the MVA. But, because the lines were too long, he left. In the meantime, because Baptist did not timely complete the requirements for election and entry into the Program, the statutorily mandated 90-day license suspension took effect on December 25, 2007. On January 2, 2008, some three and a half weeks after expiration of the thirty-day deadline, Baptist sought an interlock restricted license from the MVA.

At that time, he was informed that his 90-day license suspension was already in effect. On January 4, 2008, through counsel, appellee filed in the circuit court a “Complaint for Injunctive Relief to Place Plaintiff in Interlock Program.” The Complaint averred, in part (emphasis added): 5.... Mr. Baptist elected to enter the Ignition Interlock System Program. On November 26, 2007, he went to Obsession Motor Sports in Rockville, Maryland, and had the Interlock System installed in his car.

A copy of the Lease Agreement is attached hereto as Exhibit 1. 6. While at Obsession Motor Sports, Mr. Baptist was told that his system would be monitored by a company called “Smart Start” which was in contact with the Motor Vehicle Administration. He understood that therefore MVA was notified of his decision to enter the interlock program. He believed that MVA would send him a driver’s license which would permit him to drive as long as the car he was driving was equipped with the Interlock System. ⁶¹ 7.

Mr. Baptist made this decision because he needs his driver’s license to keep his job. He is employed as a satellite communications engineer at Segovia, Inc. in Herndon, Virginia. He lives in Germantown. There is no public transportation available to him.

Losing his license means losing his job. Therefore, he elected to enter the Interlock Program so as to keep his license. 8. Mr. Baptist is also the primary supporter of his daughter, four-year-old Haylee Baptist. He equally shares custody of Haylee with her mother.

He drives Haylee to school. By entering the Interlock Program, he would be able to continue to drive Haylee to school. 9. Unfortunately, Mr. Baptist did not take the Interlock Lease documents promptly to MVA. As set forth above, he thought that MVA was notified because Smart Start (worthing with the Motor Vehicle Administration) was monitoring his interlock.

He understood that MVA would send him an Interlock driver’s license in the mail. 10. Since he did not receive anything in the mail, on December 21, 2007, [appellee] went to the MVA in Gaithersburg. Unfortunately, the lines ivere so long that after waiting several hours he gave up. (His young daughter was with him, and simply could not wait any longer on Christmas Eve.) 11.

On January 2, 2008, Mr. Baptist went back to MVA to find out why he had not received a driver’s license. At that time, he was told that he had missed the thiBy-day deadline to enter the Interlock Program. He was also told that his license was suspended because he had not brought his Interlock paperwork to MVA. 13. As set forth above, Mr. Baptist did enter the Interlock Program.

The Interlock Program is actually installed on his vehicle (2006 Ford Taurus). He does not pose any danger to the community, since he already has the device installed. His sole failure was that he did notify MVA by ⁶² bringing the Interlock Lease paperwork to them. (He thought they were notified electronically because Smart Start was monitoring his Interlock.) 14.

At this point, Mr. Baptist cannot legally drive. His license has been suspended and he cannot go to work. Given the extreme hardship, Mr. Baptist is respectfully requesting that this Honorable Court issue an Order immediately staying the suspension (temporary restraining order) and also ordering the MVA to enroll Mr. Baptist in the Interlock Program for one year. Also on January'4, 2008, appellee’s counsel filed a “Petition for Temporary Restraining Order (Immediate Stay of Suspension),” stating that Mr. Baptist would face “severe hardship” if he were required to wait for the MVA’s answer or for the case to be fully litigated, because he could not go to work “to support himself and his family.” Appellee also stated: “Since Mr. Baptist is already in the Ignition Interlock Program and already has the device installed in his car, there is no danger to the community in having him drive.” In addition, on January 4, 2008, appellee filed a “Certificate of Immediate Service,” indicating that both the Petition and the Complaint had been faxed to Jonathan Acton, II, Esquire, Assistant Attorney General and Principal Counsel to the MVA.

Appellee also filed a “Line,” stating: “Kindly process this so that I can walk it to the duty judge when it is ready.” In actuality, at approximately 3:00 p.m. on January 4, 2008, Baptist’s counsel called Thomas Liberatore, MVA’s Manager of Driver Wellness and Safety, and faxed his assistant a copy of the pleadings. As a result, on January 7, 2008, appellee’s counsel filed an “Amended Certificate of Immediate Service,” advising that the original Certificate of Service was incorrect. He averred that the documents had been faxed “to the Administrative Assistant for Thomas Liberatore, an executive at the Motor Vehicle Administration,” and not to Acton, as had been represented in the original Certificate of Service. According to appellee, Assistant Attorney General Dore Liebowitz was given a copy, “presumably by Mr. Liberatore.” ⁶³ The Clerk apparently issued to counsel for Baptist a summons for “personal service.” However, appellant contends that neither the MVA, its Administrator, nor the Office of the Attorney General was served with the summons.

The circuit court duty judge telephoned Liberatore on January 4, 2008, seeking to hold an immediate proceeding over the telephone. 4 Therefore, Mr. Liberatore requested assistance from the Office of the Attorney General. According to appellant, it was at that point that MVA’s counsel reviewed, for the first time, the available documents and a copy of Baptist’s driving record. Thereafter, MVA’s counsel participated in an unrecorded telephone call with the court. The MVA’s lawyer argued that the MVA’s action in suspending Baptist’s license was proper because he had failed a breath test and had also failed to comply with the requirements for participation in the Program.

According to appellant, at the conclusion of the telephone call the court ruled that Baptist’s driving privileges should not be suspended, he should be enrolled in the Program, and he should receive a restricted driver’s license. Baptist’s counsel subsequently faxed a proposed order to counsel for the MVA. Liebowitz faxed a letter to Baptist’s counsel on January 7, 2008, with a copy to the judge, contesting three alleged defects in Baptist’s proposed order. She wrote, in part: As you are aware, the MVA opposes any attempt to bypass the requirements of the Ignition Interlock Program by presenting what amounts to several actions in haste to a judge without proper notification to counsel.

Although I participated in a phone conference before Judge McGann, the MVA did not have sufficient notice or opportunity to properly prepare its argument in opposition to your client’s request. ⁶⁴ Moreover, the Order which you propose to submit to Judge McGann contains several items which require clarification. The first clause appears to be a Temporary Retraining [sic] Order, the proper form of which can be found at Maryland Rule 15-504(c). The second clause appears to be a stay of your client’s license suspension, which belies the fact that there is no other case filed on his behalf which would justify a stay pending its outcome. Finally, the third clause of this Order appears to be a final decision wherein the Court is ordering Mr. Baptist be admitted into the Interlock Program.

As it is presently the MVA’s intent to further litigate this matter in whatever manner is appropriate, kindly submit an Order to clarify the nature of this act and therefore, the nature of MVA’s next remedy. Despite Liebowitz’s concerns, the court signed Baptist’s proposed Order on January 7, 2008. It stated: Having read and considered the Petition (Immediate Stay of Suspension) and having heard argument of counsel, and good cause having been shown, it is this 7th day of January, 2008 by the Circuit Court for Montgomery County, Maryland ORDERED that the Petition for Temporary Restraining Order be and the same as [sic] hereby GRANTED; and it is further ORDERED that the suspension of [Baptist’s] driver’s license ... is hereby STAYED immediately; and it is further ORDERED that the Motor Vehicle Administration shall permit Plaintiff Michael Glen [sic] Baptist to be enrolled into the Ignition Interlock System Program, and shall issue him a driver’s license with the appropriate restriction, and that the duration time for such program (one year) shall commence once the license is issued. ⁶⁵ The Clerk entered the Order on January 8, 2008. On that date, Baptist obtained his restricted driver’s license. 5 DISCUSSION I. Before reviewing the MVA’s contentions, it is helpful to review the text of some of the key statutory provisions concerning the Program.

As the Court observed in Meanor v. State, 364 Md. 511, 528 , 774 A.2d 394 (2001), “Since the enactment of its simple predecessor in 1969, as § 92A of former Article 66¡é of the Code, § 16-205.1 has undergone multiple revisions and has grown from three to twelve pages, bringing with it all the complexities that such a growth ordinarily entails.” TR § 16-205.1, titled “Suspension or disqualification for refusal to submit to chemical tests for intoxication,” states, in part: (b) No compulsion to take chemical test; consequences of refusal.—(1) ... [A] person may not be compelled to take a test. However, the detaining officer shall advise the ⁶⁶ person that, on receipt of a sworn statement from the officer that the person ... was tested and the result indicated an alcohol concentration of 0.08 or more, the Administration shall: (i) In the case of a person licensed under this title: 2. For a test result indicating an alcohol concentration of 0.15 or more at the time of testing: A. For a first offense, suspend the driver’s license for 90 days; (3) If the person refuses to take the test or takes a test which results in an alcohol concentration of 0.08 or more at the time of testing, the police officer shall: (i) Confiscate the person’s driver’s license issued by this State; (ii) Acting on behalf of the Administration, personally serve an order of suspension on the person; (iii) Issue a temporary license to drive; (iv) Inform the person that the temporary license allows the person to continue driving for 45 days if the person is licensed under this title; (v) Inform the person that: 1. The person has a right to request, at that time or within 10 days, a hearing to show cause why the driver’s license should not be suspended concerning the refusal to take the test or for test results indicating an alcohol concentration of 0.08 or more at the time of testing, and the hearing will be scheduled within 45 days; and 2.

If a hearing request is not made at that time or within 10 days, but within 30 days the person requests a hearing, a hearing to show cause why the driver’s license should not be suspended concerning the refusal to take the test or for test results indicating an alcohol concentration of 0.08 or more at ⁶⁷ the time of testing will be scheduled, but a request made after 10 days does not extend a temporary license issued by the police officer that allows the person to continue driving for 45 days; (vii) Inform the person that, if the person refuses a test or takes a test that indicates an alcohol concentration of 0.15 or more at the time of testing, the person may participate in the Ignition Interlock System Program under § 16-404.1 of this title instead of requesting a hearing under this paragraph, if the following conditions are met: 1. The person’s driver’s license is not currently suspended, revoked, canceled, or refused; 2. The person was not charged with a moving violation arising out of the same circumstances as an administrative offense under this section that involved a death of, or serious physical injury to, another person; and 3. Within the same time limits set forth in item (v) of this paragraph, the person: A. Surrenders a valid Maryland driver’s license or signs a statement certifying that the driver’s license is no longer in the person’s possession; and B. Elects in writing to participate in the Ignition Interlock System Program for 1 year....

TR § 16-205.1(n) is relevant. It states: (n) Modification of suspension.—(1) The Administration may modify a suspension under this section or issue a restrictive license if: (i) 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; (iv) The licensee has a test result indicating an alcohol concentration of less than 0.15; and ⁶⁸ (v) 1. The licensee is required to drive a motor vehicle in the course of employment; 2. The license is required for the purpose of attending an alcoholic prevention or treatment program; 3.

The Administration 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; or 4. The Administration finds that the license is required for the purpose of obtaining health care treatment, including a prescription, that is necessary for the licensee or a member of the licensee’s immediate family and the licensee and the licensee’s immediate family have no alternative means of transportation available to obtain the health care treatment. (2) In addition to the authority to modify a suspension or issue a restrictive license under paragraph (1) or (4) of this subsection, the Administration may modify a suspension under this section or issue a restrictive license, including a restriction that prohibits the licensee from driving or attempting to drive a motor vehicle unless the licensee is a participant in the Ignition Interlock System Program established under § 16-404.1 of this title if: (i) The licensee did not refuse to take a test; (ii) The licensee has not been convicted under § 12-902 of this article; (iii) The licensee has a test result indicating an alcohol concentration of less than 0.15; and (iv) The license is required for the purpose of attending: 1. A noncollegiate educational institution ...; or 2.

A regular program at an institution of postsecondary education. (3) If the licensee refused to take a test or took a test that indicated an alcohol concentration of 0.15 or more at the time of testing, the Administration may not modify a ⁶⁹ suspension under this section or issue a restrictive license except as provided under paragraph (4) of this subsection. (4)(i) In addition to the authority to modify a suspension or issue a restrictive license under subsection (b)(3) (vii) of this section or paragraph (1) or (2) of this subsection, the Administration may modify a suspension under this section or issue a restrictive license to a licensee as provided in this paragraph. (ii) If the licensee refused to take a test or took a test that indicated an alcohol concentration of 0.15 or more, the Administration may modify suspension under this section or issue a restrictive license if the licensee participates in the Ignition Interlock System Program for 1 year.

TR § 16-404.1 titled “Ignition Interlock System Program,” is also pertinent. TR § 16-404.1 states, in part: (b) In general.— (3) An individual may be a participant if: (iv) The Administration modifies a suspension or issues a restrictive license to the individual under § 16-205.1(b)(3)(vii) or (n)(2) or (4) of this title. (4) The Administration may: (i) Issue a restrictive license to an individual who is a participant in the Program during the suspension period as provided under § 16-404(c)(3) of this subtitle----[ 6 ] ⁷⁰ * * V (c) Commencement of participation.—For purposes of § 16-404(c)(3) of this subtitle ... a participant is considered to begin participation in the Program when the participant provides evidence of the installation of an ignition interlock system by an approved service provider in a manner required by the Administration. The MVA’s written instructions as to the requirements for participation in the Program were provided to appellee.

They stated, in part: 3. Within thirty (30) days of the date of this Order of Suspension you must: • Elect in writing to participate in the Ignition Interlock System Program for 1 year by completing and returning the bottom portion of this form; • Have an ignition interlock system installed on your vehicle by one of the approved Interlock Service Providers....; • Surrender to the Motor Vehicle Administration (MVA) your valid Maryland driver’s license, or in the event your license is not in your possession, sign a certified statement that your license is no longer in your possession; and • Take the sealed enrollment form from the service provider and this form to any full service MVA office to obtain a Maryland driver’s license restricted to the operation only of vehicles equipped with an ignition interlock device. The Code of Maryland Regulations (“COMAR”) is also applicable. COMAR 11.11.13.03 states, in part: 03.

Requirements for Enrollment in the Program. A. To enroll as a participant in the Program, an individual shall: (1) Have a valid Maryland license that is not currently suspended, revoked, cancelled, or refused in this or any other state; ⁷¹ (2) Notify the Administration, in writing, of the individual’s choice to participate in the Program; (3) Have an interlock device installed in the individual’s vehicle by an approved service provider; (4) Surrender all Maryland driver’s licenses, including a temporary license, or submit a signed statement certifying no driver’s license is in the individual’s possession; and (5) Submit the service provider’s completed sealed enrollmént form to a full service Administration office and obtain a driver’s license with an interlock-restriction. B. An individual may not become a participant and will not receive credit for participation in the Program unless all the requirements set forth in § A of this regulation have been complied with. C. An individual who elects to participate in the Program under Transportation Article, § 16-205.1 (b)(3)(vii), Annotated Code of Maryland: (1) May not have been charged with a moving violation arising out of the same circumstances as an administrative offense under that section involved a death of or serious physical injury to another individual; and (2) Shall meet the enrollment requirements set forth in § A of this regulation within SO days of the date on the Order of Suspension.

D. An individual is no longer eligible to participate in the Program under Transportation Article, § 16-205.1 (b)(3)(vii), Annotated Code of Maryland, if the Administration receives a request for an administrative hearing from the individual.... (Emphasis added.) With the complex statutory scheme in mind, we turn to MVA’s contentions. It asserts: “Beyond the manifold procedural errors the circuit court committed, and even assuming the facts alleged in Baptist’s injunctive action are true, the circuit court exceeded its limited judicial authority when it ordered the MVA to enroll Baptist in the ignition interlock program.” According to appellant, the circuit court improperly “intervene[d] in agency action, and failed to adhere to TR ⁷² § 16-205.1,” by ordering the MVA “to stay Baptist’s suspension and issue him a restricted license.” We agree. The Order of Suspension was issued on November 9, 2007.

From that date, Baptist had thirty days to complete the requirements for