Motor Vehicle Administration v. Deering

McDonald, J. In the effort to reduce the hazards caused by drunk drivers, the General Assembly, like the legislatures of most other states, has enacted as part of the Maryland Vehicle Law a statute known as “the implied consent, administrative per se law.” That statute incorporates “implied consent” in that it provides that any individual who drives a vehicle in Maryland is deemed to have consented to take a chemical test — usually, a breath test — to measure blood alcohol concentration, if stopped by a police officer with reasonable grounds to believe that the person has been driving under the influence of alcohol. Despite the statute’s declaration of implied consent by all drivers, it recognizes that a driver detained by an officer may refuse to take the breath test. But the time for making that decision is limited — blood alcohol concentration is transient and any test must be conducted within two hours of the stop. ⁶¹³ The phrase “administrative per se” refers to the administrative consequences of a refusal to take the breath test, or of test results that reveal that the driver has a blood alcohol concentration above certain levels (regardless of whether the driver otherwise appears to be impaired). In both cases, the law provides for an automatic suspension of the driver’s license for specified periods.

The license suspension is an administrative sanction that is distinct from any criminal prosecution of the driver that might also ensue. Under the “implied consent, administrative per se law,” a detained driver thus has a choice to make — a choice with legal consequences. On the one hand, refusing the test carries a sure suspension; on the other, taking the test may result in no sanction at all or in a significant suspension plus an increased potential for criminal prosecution, depending on the test result. Does a detained driver have a right to consult with legal counsel before making this choice?

What are the consequences if the police officer declines to allow the detained driver to contact counsel? How does the significant time constraint for taking the test affect this calculus? And, if there is a right to a pre-test consultation with counsel, must the State furnish counsel for indigent drivers, or is such a right only for the well-to-do? This Court has previously held, in the context of a criminal prosecution, that a driver detained on suspicion of drunk driving who requests an opportunity to consult with counsel before deciding whether to take the test has a due process right to be allowed a reasonable opportunity to do so if, in the view of the officer, it would not interfere with a timely administration of the test.

In that case, the Court suggested that violation of that right would result in exclusion of any adverse test result from evidence in a criminal prosecution. In a subsequent case, the Court considered the effect of an alleged constitutional violation in the apprehension of a suspected drunk driver who refused a breath test; it held that a violation that might result in the exclusion of evidence from a ⁶¹⁴ criminal trial would not affect the administrative suspension of the driver’s license. More recently, this Court has indicated, in a passage not necessary to the decision of the case before it (i.e., dicta), that the failure to allow a pre-test opportunity to consult with counsel would also not relieve the driver of an administrative license suspension. To decide this case, we must decide whether to adhere to that view.

For the reasons set forth below, we confirm the view previously expressed in dicta. Even if a suspected drunk driver is denied the opportunity to consult counsel before deciding whether to take the breath test and might have a test refusal or a test result excluded from evidence in a criminal case, the driver may not avoid the automatic administrative license suspension that the statute assigns to the test refusal or test result. Background The Implied Consent, Administrative Per Se Law Motivated in part by incentives created by federal law, nearly every state has enacted some form of an implied consent, administrative per se law as part of its strategy to combat drunk driving. 1 Such a law supplements the criminal penalties for drunk driving with an administrative remedy — a remedy that can remove an impaired driver from the highways for a certain period of time without need to pursue a ⁶¹⁵ criminal prosecution, as well as encourage drivers to cooperate in a test that measures potential impairment due to alcohol consumption. See Report of Task Force on Drunk and Drugged Driving to Maryland General Assembly (1988 Interim) at pp. 8,11.

The Maryland version appears in the Maryland Vehicle Law, which comprises titles 11 through 27 of the Transportation Article (“TR”) of the Maryland Code. TR § 11-206. The implied consent, administrative per se law is codified in TR § 16-205.1. As to implied consent, it states, in pertinent part: Any person who drives or attempts to drive a motor vehicle ... in this State is deemed to have consented ... to take a [breath] test [to determine blood alcohol concentration] if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol....

TR § 16-205.1(a)(2). 2 Although the statute deems all drivers in Maryland to have consented to take a breath test, it nonetheless allows a driver detained under suspicion of drunk driving to elect at that time whether to take the test. TR § 16-205.1(b). If the driver chooses to take the test, the officer must ensure that the test is administered within two hours of the time the driver was stopped. See Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 10-303(a).

Thus, while consent is implied, it may be withdrawn — for a price. Under the statute, a refusal to take the test results in an administrative license suspension of 120 days for a first offense, and in a suspension of one year for a second or subsequent offense. TR § 16-205.1(b)(l)(i)3. 3 The alternative is to take the test and risk a result that may carry lesser periods of administrative suspension — or perhaps no suspension at all — although an adverse result may also be used in a ⁶¹⁶ criminal prosecution. A test result showing a blood alcohol concentration above .08 4 results in an administrative suspension of between 45 days and 180 days, depending on the level of alcohol concentration and whether it is a first or subsequent offense.

TR § 16 — 205.1(b)(i) 1 — 2. 5 In some circumstances, a suspension may be modified in favor of a restricted license that allows the individual to drive for employment, education, or similar purposes. TR § 16-205.1(n), (o). The automatic suspension for a test refusal is designed to encourage drivers to take the breath test, with the result that impaired drivers can be accurately detected and the safety of the roadways enhanced. ⁶¹⁷ The statute requires the arresting officer to advise the detainee of the possible administrative sanctions for a refusal to take the breath test and for test results that show blood alcohol concentration above certain levels. TR § 16-205.1(b)(2).

Typically, the officer satisfies this requirement by reading, and providing the driver with, a form created by the Motor Vehicle Administration (“MVA”) for that purpose, known as the “DR-15” form. That form sets forth a detained driver’s options under the implied consent statute, the consequences of failing to take the breath test and of test results that indicate certain levels of blood alcohol concentration, and other rights and consequences, including the right to an administrative hearing. See Motor Vehicle Administration v. Delawter, 403 Md. 243, 262-67 , 941 A.2d 1067 (2008). If the driver refuses to take the test or fails the test, the officer is to serve an order of suspension on the person, seize the person’s license, and issue a temporary license that may be used for a maximum of 45 days or until the individual’s license is formally suspended after a license suspension hearing.

TR § 16-205.1 (b)(3). The statute permits the driver to request a hearing before an officer of the MVA. TR § 16-205.1©. Under a delegation from the MVA, the hearing is conducted by an administrative law judge (“ALJ”) of the Office of Administrative Hearings.

TR § 12-104(e); COMAR 11.11.02.07. The statute enumerates specific issues that can be raised at the license suspension hearing: whether the officer had reasonable grounds for believing that the driver was impaired, whether there was evidence of drug or alcohol use by the driver, whether the officer properly advised the driver in accordance with the statute when requesting the breath test, whether the driver refused the test, and related issues. TR § 16-205.1©(7) 6 ; see Motor Vehicle Administration v. Jones, 380 Md. 164 , 844 A.2d 388 (2004) (ALJ may not consider whether a test was performed within two hours of detention as it is not among the hearing issues enumerated in ⁶¹⁸ TR § 16-205.1(f)(7)(i)). Whether the driver had an opportunity to consult counsel before deciding whether to take the breath test is not among those issues.

If a suspension is imposed as a result of the hearing, the driver may seek judicial review in the circuit court. TR § 16 — 205.1(j); TR § 12-209. The statute provides that the determination of any facts by the MVA “is independent of the determination of the same or similar facts in the adjudication of any criminal charges.” TR § 16-205.1(7). Moreover, a criminal conviction arising out of the same occurrence may result in additional administrative sanctions.

TR § 16-205.1(k). A Traffic Stop and its Aftermath The Stop and Test of Ms. Deering Shortly after midnight on May 3, 2012, an officer of the Fruitland Police Department in Wicomico County stopped ⁶¹⁹ Respondent April Marie Deering for driving her car without dimming the high beams and with an expired registration tag. After noticing that Ms. Deering smelled strongly of alcohol and that her speech was slurred, the officer asked Ms. Deering to perform a number of field sobriety tests, which she failed to complete satisfactorily. The officer arrested Ms. Deering for driving under the influence of alcohol and transported her to the Fruitland police station.

At the police station, the officer read to Ms. Deering the DR-15 form which, as noted above, advised her of her options under the implied consent, administrative per se law and the consequences of declining to take the test and of test results that revealed certain levels of intoxication. The Fruitland police station does not have the equipment to administer a breath test. 7 If a detained driver opts to take a breath test, the arresting officer drives the individual to a State Police barracks for that purpose, approximately 20 minutes away from the Fruitland police station. Because of the limited time for taking the test, the Fruitland police typically do not accede to a detained driver’s request to contact an attorney until after processing and any test is completed. According to Ms. Deering, she asked the officer if she could call an attorney, but was not allowed to make a call.

(Ms. Deering testified that she had a personal relationship with an attorney whose number she kept in her cell phone, although it is not clear that she communicated that fact to the officer at the time of her detention). The officer testified that he did not specifically recall a request by Ms. Deering, but that typically he would not allow a detained driver to try to contact an attorney before a test because of the limited two-hour time frame for administering the test. Ms. Deering agreed to take a breath test at 12:50 a.m., approximately 45 minutes after the initial traffic stop. The officer then transported her to the State Police barracks, whore the test was administered.

Ms. Deering’s first attempt ⁶²⁰ to take the test failed, and she completed the test for a second time at 1:56 a.m., nearly an hour and 50 minutes after the initial stop and one and a half hours after her arrest. The test result indicated that she had a blood alcohol concentration of 0.16. In accordance with the implied consent, administrative per se law, the officer issued an order of suspension for 90 days to Ms. Deering, the prescribed suspension for a blood-alcohol concentration of 0.15 or more. 8 Had Ms. Deering refused to take the breath test, the officer would have issued an order of suspension of Ms. Deering’s driver’s license for 120 days — the prescribed suspension for a refusal to take the test. 9 The ALJ’s Decision As permitted by the statute, Ms. Deering asked for an administrative review of the suspension order. At her administrative hearing on June 29, 2012, Ms. Deering argued that she had a right during her detention to consult counsel before she decided whether to take the breath test and that the failure to allow her to call an attorney violated due process.

She asked that, in recognition of the alleged due process violation, the ALJ take “no action” — that is, not impose a suspension based on the result of the breath test. At the hearing, the ALJ opined that the denial of Ms. Deering’s request to consult an attorney before deciding to take the breath test was a “matter of timing” — apparently alluding to the need to transport Ms. Deering to the State Police barracks and conduct the test within two hours — and did not violate Ms. Deering’s right to due process. In a written decision dated July 30, 2012, the ALJ concluded that Ms. Deering had violated TR § 16-205.1 and, in accordance with the statute, upheld the suspension of Ms. Deering’s driver’s license for 90 days. The ALJ explained the decision by completing a pre-printed form designed for that purpose.

Under a section of the form entitled “other facts,” the ALJ ⁶²¹ wrote, “Officer fully advised Licensee of potential sanctions; although not given opportunity to call lawyer, not necessary in admin[istrative] context.” Ms. Deering sought judicial review of the ALJ’s ruling in the Circuit Court for Somerset County. 10 On August 1, 2012, Ms. Deering filed a motion for a stay of her suspension pending appeal but withdrew that motion when the MVA administratively granted her request for a stay. The Circuit Court’s Ruling The Circuit Court heard argument and, on March 22, 2013, reversed the ALJ’s decision. It held that, under Sites v. State, 300 Md. 702 , 481 A.2d 192 (1984), the denial of Ms. Deering’s request to contact her attorney violated her right to due process under the Fourteenth Amendment. The Circuit Court explained that, despite the fact that Sites was a criminal case, its holding was applicable to Ms. Deering’s administrative proceeding.

The Circuit Court concluded that Ms. Deering was not afforded a reasonable opportunity to contact an attorney “because the Fruitland Police Department routinely denies such requests.” As to whether Ms. Deering was actually prejudiced in the administrative proceeding by her inability to consult counsel in deciding whether to take the test — she received a shorter suspension than she would have received if she had elected to refuse the test — the Circuit Court stated that it is not “this Court’s function to determine what ... prejudice resulted from the denial of that right.” The MVA subsequently filed a petition for writ of certiorari in this Court, which we granted to consider whether the ALJ properly upheld the suspension of Ms. Deering’s license despite the fact that the detaining officer had denied her request to speak to an attorney before she decided whether to take the breath test. ⁶²² Discussion Standard of Review When, as here, we review the decision of an administrative agency, we apply the same standard of review as the Circuit Court and directly evaluate the decision of the agency. Motor Vehicle Administration v. Shea, 415 Md. 1, 15 , 997 A.2d 768 (2010). A reviewing court “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” 415 Md. at 14 , 997 A.2d 768 . Wdiile this standard accords less deference to an agency’s legal conclusions than to its fact findings, a reviewing court should give weight to the administrative agency’s interpretation and application of the statute that the agency administers.

Id. at 14-15 , 997 A.2d 768 . In this case, the essential facts are undisputed. The question before us is one of law — whether the ALJ was correct in concluding that the fact that the officer did not allow Ms. Deering to contact an attorney when she was deciding whether to take the breath test did not affect the administrative suspension of her license pursuant to TR § 16-205.1. Whether Denial of a Pre-Test Consultation with Counsel Precludes a Suspension Due Process in an Administrative Context In the context of administrative proceedings, courts apply a balancing test to assess whether the procedures employed comport with the due process required by the federal Constitution.

In particular, courts look to the private interest at stake, the governmental interest, and the risk that the procedures used will lead to erroneous decisions. Mathews v. Eldridge, 424 U.S. 319, 334-35 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976). This is not a mechanical exercise. As the Supreme Court has observed: “[Due process] expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty.

Applying the Due ⁶²³ Process Clause is therefore an uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a particular situation.... ” Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 24-25 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981). It requires an assessment of the interests at stake and any relevant precedents. Id. A driver’s interest in the continued right to drive in Maryland is certainly an important one that can affect the individual’s ability to work and otherwise function in society.

That interest must be weighed against the public interest to deter drunk driving and to protect the public, not to mention the impaired driver, from the consequences, often fatal, of impaired driving. The implied consent, administrative per se law was designed to serve that interest by putting in place an effective administrative mechanism to remove impaired drivers from the roadways and to encourage all drivers to cooperate in a test to measure impairment. 11 The risk that a driver may incur an erroneous administrative sanction due to the inability to consult with counsel before taking the test is minimal or non-existent. In the administrative context, the statute prescribes specific periods of suspension based on either the driver’s refusal to take the breath test or an adverse test result. Advice of counsel before the test may aid the driver in deciding whether to take the sure suspension related to a refusal or risk a different suspension ⁶²⁴ by taking the test, but it would not affect whether the basis for the sanction was erroneous. 12 If the question of a right to a pre-test consultation with counsel arose in a purely administrative context, we would likely conclude that due process does not require such a consultation.

However, a detained driver also faces the prospect of potential criminal penalties, including incarceration — a circumstance that may weigh in favor of greater protection for the detained driver. In any event, there may be different consequences for criminal and administrative proceedings that arise from the same events. No prior decision of this Court directly controls the outcome of the question posed by this case. The most pertinent decisions are discussed below.

Sites This Court first addressed a suspected drunk driver’s right to consult counsel prior to deciding whether to take a breath test in Sites v. State, 300 Md. 702 , 481 A.2d 192 (1984), a criminal case. Sites was detained on suspicion of drunk driving, and repeatedly and unsuccessfully requested permission to speak to his attorney before deciding whether to take the breath test. He ultimately took the test without consulting counsel, and the result showed a blood alcohol concentration level of 0.17. He was criminally charged with driving while intoxicated. 13 ⁶²⁵ Sites filed a pretrial motion to suppress the test result on the ground that he was denied his right to counsel prior to deciding whether to take the breath test.

The circuit court denied the motion, stating that he had no such right to consult counsel. This Court granted certiorari to consider the question of whether the results of a breath test should be suppressed in a criminal trial on the ground that the defendant was denied an opportunity to consult an attorney before deciding whether to take the test. 300 Md. at 708-09 , 481 A.2d 192 . The Court rejected Sites’ claim that he had a right to consult counsel under TR § 16-205.1 or the Sixth Amendment of the federal Constitution. 300 Md. at 710-12 , 481 A.2d 192 . 14 But it held that Sites had a due process right under the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights to communicate with counsel before deciding whether to submit to the breath test. Id. at 717-18 , 481 A.2d 192 .

The Court reasoned that “[t]he continued possession of a driver’s license ... may become essential to earning a livelihood,” and concluded that “[possession of a driver’s license] is an entitlement which cannot be taken without the due process mandated by the Fourteenth Amendment.” Id. at 717 , 481 A.2d 192 (citation omitted). It concluded 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 ⁶²⁶ the timely and efficacious administration of the testing process.” Id. at 717-18 , 481 A.2d 192 . 15 The Court noted that the test has to be administered promptly because “the statutory purpose [is] to obtain the best evidence of blood alcohol content as may be practicable in the circumstances, and it is common knowledge that such content dissipates rapidly with the passage of time.” 300 Md. at 718 , 481 A.2d 192 . Accordingly, the right to consult counsel will be limited by the exigencies of a particular case. Id.

Moreover, the Court stated that “great deference” should be accorded to the determination by an officer that a consultation with counsel would interfere with timely administration of the test. Id.; see also Forman v. Motor Vehicle Administration, 332 Md. 201 , 217 n. 7, 630 A.2d 753 (1993) (stating that there is a “limited due process right” under Sites for a suspected drunk driver to contact counsel). In the case before it, the Sites Court declined to hold that the test result should be suppressed, stating that “there is nothing in the record to show whether, in the circumstances, the refusal of the police to permit a phone call (if in fact that occurred) constituted a violation of Sites’ due process right.” Id. at 718-19 , 481 A.2d 192 . The Due Process Rationale of Sites As outlined above, the Sites Court based its holding on the due process clauses of the federal and State constitutions.

The Court cited, without significant analysis, several Supreme Court decisions on the due process clause, most of which did not concern a right to counsel, as well as Rutherford v. Rutherford, 296 Md. 347 , 464 A.2d 228 (1983), in which this Court held that an indigent defendant who faces incarceration in a civil contempt proceeding has a right to government-furnished counsel. ⁶²⁷ The Sites Court acknowledged that there was scant authority on the precise issue before it and that other state supreme courts had reached the opposite conclusion. 300 Md. at 716-17 , 481 A.2d 192 . It discussed three cases from other jurisdictions that arguably concluded that the due process clause of the Fourteenth Amendment required a reasonable pre-test opportunity to consult with counsel, although the Court appeared to acknowledge that those cases were a weak foundation for its holding: People v. Gursey, 22 N.Y.2d 224 , 292 N.Y.S.2d 416 , 239 N.E.2d 351 (1968), State v. Newton, 291 Or. 788 , 636 P.2d 393 (1981), and Troy v. Curry, 36 Ohio Misc. 144 , 303 N.E.2d 925 (Ohio Mun.1973). For example, in Gursey , the New York Court of Appeals simply stated that “the denial of defendant’s requests for an opportunity to telephone his lawyer must be deemed to have violated his privilege of access to counsel,” but, as the Sites Court noted, 16 the New York court did not specify whether that privilege arose from a state rule, a statute, the state constitution, or the federal Constitution. 17 In Newton , a plurality of the Supreme Court of Oregon did explicitly conclude that the due process clause of the Fourteenth Amendment to the federal Constitution requires that a suspected drunk driver have an opportunity to consult counsel prior to deciding whether to take the breath test, although a majority of that court also held that a violation of that right would not require suppression of an adverse test result in a criminal prosecution. Subsequently, in State v. Spencer, 305 Or. 59 , 750 P.2d 147 , 154-56 & n. 4 (1988), the Oregon Supreme Court abandoned the position of the Newton plurality based on the due process clause of the Fourteenth Amend ⁶²⁸ ment and held instead that such a right to consult counsel emanated from a state constitutional provision concerning the right to counsel in criminal cases. 18 The third case, Troy , was a two-page decision by an acting judge of a county municipal court in Ohio that, as Sites acknowledged, 19 contained no analysis.

While the Ohio judge did hold that both the Sixth Amendment — again, a ground rejected by Sites — and the due process clause of the Fourteenth Amendment established a right to consult counsel, the court did not explain its conclusion other than to state that the driver “needed the advice of counsel” and that “his request was not unreasonable.” 303 N.E.2d at 927 . Shortly after that decision, in a different case, the Ohio intermediate appellate court observed that an officer’s refusal to allow a detained driver to consult counsel prior to a breath test “does not constitute an unconstitutional denial of the right to counsel,” although it also noted that an Ohio statute accorded a detained driver such a right. Siegwald v. Curry, 40 Ohio App.2d 313 , 319 N.E.2d 381 (1974); see also State v. Layton, 111 Ohio App.3d 76 , 675 N.E.2d 862 (1996). In sum, what little case authority may have supported the federal constitutional conclusion drawn in Sites , that authority has largely evaporated.

No other state or federal court has subsequently held that the due process clause of the Fourteenth Amendment generally establishes a pre-test right to counsel for a suspected drunk driver. Indeed, other state courts — in addition to the contrary authority noted in Sites— have considered and rejected the argument that a detained driver has a right to consult counsel rooted in the due process clause of the Fourteenth Amendment. See, e.g., State v. Deg- ⁶²⁹ nan, 305 S.C. 369 , 409 S.E.2d 346 (S.C.1991); Brank v. State, 528 A.2d 1185 (Del.1987); Dunn v. Petit, 120 R.I. 486 , 388 A.2d 809 (1978); State v. Layton, 111 Ohio App.3d 76 , 675 N.E.2d 862 (1996); Matter of McNeely, 119 Idaho 182 , 804 P.2d 911 (App.1990); McCambridge v. State, 725 S.W.2d 418 (Tex.App.1987), aff'd, 778 S.W.2d 70 (Tex.Crim.App.1989); State v. Hoch, 500 So.2d 597 (Fla.App.1986); State v. DeLorenzo, 210 N.J.Super. 100 , 509 A.2d 238 (Ct.App.Div.1986); State v. Armfield, 214 Mont. 229 , 693 P.2d 1226 (Mont.1984), overruled in pari on other grounds, State v. Reavley, 318 Mont. 150 , 79 P.3d 270 (2003); People v. Griffith, 143 Ill. App.3d 683 , 97 Ill.Dec. 750 , 493 N.E.2d 413 (1986). 20 Those courts that have recognized a pre-test right to consult counsel have found its source elsewhere — in a state constitutional provision, a state rule, or a state statute.

See, e.g., State v. Spencer, 305 Or. 59 , 750 P.2d 147 (1988) (state constitution); Copelin v. State, 659 P.2d 1206 (Alaska 1983) (state statute and rule); Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 , 832 (Minn.1991) (state constitution); State v. Vietor, 261 N.W.2d 828 (Iowa 1978) (state statute); Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D.1987) (state statute); State v. Templeton, 148 Wash.2d 193 , 59 P.3d 632 (2002) (state rule); Litteral v. Commonwealth, 282 S.W.3d 331, 333 (Ky.App.2008) (state statute); cf. Hall v.