Motor Vehicle Administration v. Delawter

BATTAGLIA, J. Following a hearing 1 before the Motor Vehicle Administration (“MVA”) on November 8,2006, Administrative Law Judge C. Hooker Davis reduced the duration of the suspension of the ²⁴⁵ driver’s license of Respondent, Lianne Marie Delawter, to twenty-five days and referred Ms. Delawter to the Medical Advisory Board (“MAB” or the “Board”) 2 for alcohol evaluation. After a judicial review hearing, the Circuit Court for Frederick County affirmed the twenty-five day suspension, but reversed the referral to the MAB because Ms. Delawter did not receive notice on the DR-15 Advice of Rights form “that by exercising her right to a hearing she was facing a possible referral to the MAB.” Petitioner, the MVA, now presents us with the following question for review: ²⁴⁶ In the course of an administrative hearing under McLCo'de Ann., Transp. § 16—205.1(f)(7), where the evidence established that a driver had been cited for drunk driving on multiple occasions, including a' single-car crash, was the ALJ precluded from requesting that the MVA review the driver’s medical fitness to drive, because the driver was not advised of the potential “MAB referral” in the DR-15 Advice of Rights form? MVA v. Delawter, 401 Md. 172 , 931 A.2d 1095 (2007). We shall reverse the Circuit Court and hold that notice of a potential MAB referral need not be included in the DR-15 Advice of Rights form.

I. Introduction On May 6, 2006, at approximately 2:30 in the morning, Ms. Delawter was involved in a single motor vehicle crash on Potomac and Main Streets in Boonsboro, Washington County, Maryland. Deputy First Class J. Garrett Mills of the Washington County Sheriffs Office arrived at the scene, determined that Ms. Delawter was the driver of the vehicle, and upon approaching her, detected a strong odor of alcohol about her person and noticed that her eyes appeared red and glassy. Deputy Sheriff Mills arrested Ms. Delawter for driving under the influence and provided her with a DR-15 Advice of Rights form, 3 which advised her of the potential administrative sanc ²⁴⁹ tions she faced. Ms. Delawter was not subjected to field sobriety tests due to her injuries, but subsequently she had a blood sample taken, which indicated an alcohol concentration of .17.

Four months later, on September 5, 2006, Deputy Sheriff Mills confiscated Ms. Delawter’s driver’s license, served her with an order of suspension, and issued her a temporary license. Ms. Delawter requested a hearing before an administrative law judge, who convened it on November 8, 2006. Administrative Law Judge C. Hooker Davis admitted the DR-15 Advice of Rights Form signed by Deputy Sheriff Mills and Ms. Delawter, the DR-15A Order of Suspension, 4 the MSP-33 Result of Test Alcohol Concentration Form, 5 and Ms. Delaw ²⁵⁰ ter’s driving record. Although her counsel argued that the Order of Suspension should be dismissed because of the delay between the accident and the issuance of the suspension, the ALJ disagreed.

Ms. Delawter also contended that she should be granted a restricted license, arguing that she was enrolled at Mountain Manor treatment program for alcohol dependency and that she was employed in two different positions which required her to travel to various sites, which the ALJ also rejected. At the conclusion of the hearing, the ALJ determined that Deputy Sheriff Mills had reasonable grounds to believe that Ms. Delawter was driving while under the influence of or impaired by alcohol, that the Deputy believed that Ms. Delawter had consumed alcohol, that he had advised her of the administrative sanctions to be imposed and had requested that an alcohol concentration test be performed, that the test was performed, and that the test results reflected an alcohol concentration of .17. The ALJ reduced the suspension to twenty-five days and also referred Ms. Delawter to the Medical Advisory Board: After considering the evidence presented in this case, I find by a preponderance of the evidence the following facts. The officer who stopped or detained the Licensee had reasonable grounds to believe that the Licensee was driving or attempting to drive a motor vehicle while under the influence of or impaired by alcohol based on the following.

The Licensee was the driver of a motor vehicle involved in an accident. The evidence of the use of alcohol was based on the following, a strong odor of an alcoholic beverage was on her person. The officer fully advised the Licensee of the administrative sanctions to be imposed. The officer requested that the Licensee take a test as defined in Maryland Code Annotated Transportation Section 16-205.1.

The Licensee drove a motor vehicle and took the test as requested which indicated an alcohol concentration of 0.17 grams of alcohol per 100 milliliters of blood at the time of testing. The Licensee did not refuse the test. The Licensee was not driving a commercial motor vehicle. I find the Licensee did not present any evidence to refute the evidence presented ²⁵¹ by the MVA.

I further find the Licensee was not prejudiced by the Administration regarding the delay in issuing the order of suspension. The Licensee is employed by CVS # 1484 as a pharmacy technician and by a private patient as a health care provider. The Licensee drives to work sites. The Licensee is under the supervision of the Division of Parole and Probation.

She attends alcohol education at Mountain Manor where she was diagnosed as alcohol dependent on June 23, '06. Based upon the foregoing, I conclude that the Licensee is subject to sanction under Section 16-205.1. The Maryland driving record reflects two prior alcohol-related driving incidents, January 10,1989, probation before judgment granted under 21-902(a), June 16, 1992, cited DUI, convicted.... Licensee has not had a license suspended under Section 16-205.1 in the past five years nor has the Licensee been convicted under 21-902 in the past five years.

The Licensee has presented evidence in the form of testimonial evidence as well as documentary evidence regarding the need of a license for commuting for employment and for alcohol education. While the Licensee meets the criteria for the issuance of a restricted license in view of the prior two alcohol-related driving incidents I will not issue a restricted license. However, I will modify the 45-day suspension to a suspension for a period of 25 days. Under Section 16—118(c), COMAR 11.17.03, I’m referring this matter to the Medical Advisory Board for an alcohol evaluation.

Ms. Delawter filed a Petition for Judicial Review in the Circuit Court for Frederick County where she argued that the order of suspension should be dismissed because of the delay between the accident and service of the order, that the evidence did not support the ALJ’s findings and that the ALJ exceeded his authority when he referred her to the MAB. The ²⁵² Circuit Court judge rejected Ms. Delawter’s first two arguments and affirmed the suspension order, concluding that the ALJ’s findings were supported by substantial evidence and that the delay in the service of the suspension order was not unreasonable or prejudicial. The judge reversed the referral to the MAB, however, noting that if Ms. Delawter had not requested a hearing, she would not have been referred to the Board by the ALJ and that she “was not given notice that her exercise of her right to a hearing may have subjected herself to a possible referral to the MAB”: Petitioner further argues that under COMAE 11.17.03, the ALJ exceeded his authority by referring her to the MAB. The MVA argues that the MAB is created pursuant to TR § 16-118.

The nature of a referral is to report to the MAB a person who may be unfit to drive. The MVA argues it is within the discretion of the MAB, based on the referral they receive, to take action. Additionally, the MVA states that the referral to the MAB was warranted based on two related offenses; one in 1988, and the other in 1992. Further, the MVA argues that anyone (including an officer, ALJ or private citizen) can make a referral to the MAB.

However, the Assistant Attorney General candidly admitted that if Petitioner had not requested a hearing, Petitioner would not have been subjected to a possible referral to the MAB. The Advise of Rights form given to Petitioner failed to inform her that by exercising her right to a hearing she was facing a possible referral to the MAB. This additional sanction inflicted upon Petitioner did in fact prejudice her. CONCLUSION For the reasons set forth herein, it is this 12th day of June, 2007, that this Court finds that there was substantial evidence before the Motor Vehicle Administration to support its findings and conclusions of the law regarding the suspension of 25 days and this Court AFFIRMS the MVA decision concerning the suspension.

However, this Court RE ²⁵³ VERSES the referral to the MAB. Petitioner was not given notice that her exercise of her right to a hearing may have subjected herself to a possible referral to the MAB. We granted the MVA’s petition for writ of certiorari. Delawter, 401 Md. at 172 , 931 A.2d at 1095 .

II

Discussion The MVA argues that the DR-15 Advice of Rights form is not required to include notice that an administrative law judge, after conducting a hearing requested by a driver of a motor vehicle to modify the suspension of the driver’s license, could refer the driver to the MAB, because the referral does not constitute an “administrative sanction” under Section 16-205.1(b) of the Transportation Article, Maryland Code (1977, 2006 RepLVol.). 6 The MVA contends that a referral is not an ²⁵⁵ administrative sanction because the MAB referral, in and of itself, does not affect her driving privilege. The MVA also suggests that requiring notice of the MAB referral would frustrate the purpose of the DR-15. 7 ²⁵⁶ Ms. Delawter did not address the question presented in the MVA’s petition for certiorari except when her counsel conceded that the DR-15 is not required to include notification of a potential referral to the MAJB. Rather, she argues, after not having filed a cross-petition or a conditional cross-petition, that the ALJ did not have the authority to order Ms. Delawter to be evaluated by the Board. Standard of Review Section 10-222 of the Maryland Administrative Procedure Act, codified as Section 10-222 of the State Government Article, Maryland Code (1984, 2004 Repl.Vol.), delineates that a court, upon judicial review of an administrative agency’s decision, may decide to: (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 and capricious.

In Maryland Aviation Administration v. Noland, 386 Md. 556 , 873 A.2d 1145 (2005), Judge John C. Eldridge, writing for this Court, explored the standard of review of an adjudicatory decision by an administrative agency, stating: A court’s role in reviewing an administrative agency adjudicatory decision is narrow; it “is limited to determining if ²⁵⁷ 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.” In applying the substantial evidence test, a reviewing court decides “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. A reviewing court “must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid, and ... it is the agency’s province to resolve conflicting evidence” and to draw inferences from that evidence. Despite some unfortunate language that has crept into a few of our opinions, a court’s task on review is not to “substitute its judgment for the expertise of those persons who constitute the administrative agency.” Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.

Furthermore, the expertise of the agency in its own field should be respected. Id. at 571-72 , 873 A.2d at 1154-55 (footnote omitted) (citations omitted). See ateo MVA v. Illiano, 390 Md. 265, 273-75 , 888 A.2d 329, 332-33 (2005). The issue itself of whether notice of a potential MAB referral must be included in the DR-15 Advice of Rights form under Section 16-205.1(b) of the Transportation Article involves a question of statutory interpretation.

In Motor Vehicle Administration v. Jones, 380 Md. 164 , 844 A.2d 388 (2004), we iterated: It has long been settled by this Court that “the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” First and foremost, a court should thoroughly examine the plain language of the statute ²⁵⁸ when attempting to ascertain the Legislature’s intentions. If the statutory language in question is unambiguous when construed according to its ordinary and everyday meaning, then this Court “will give effect to the statute as it is written.” This Court, however, will not add or delete words from the statute. We will look “beyond the statute’s plain language in discerning the legislative intent” only where the statutory language is ambiguous. Id. at 175-76 , 844 A.2d at 394-95 (citations omitted).

The Medical Advisory Board Since 1947, 8 the Administrator of the MVA has had the authority to appoint a Medical Advisory Board, consisting of “qualified physicians and optometrists,” in order “to enable the Administration to comply properly with the provisions of [the Code] regarding the physical and mental condition of individuals who seek to drive on highways in this State.” Maryland Code (1977, 2006 Repl.Vol.), Section 16-118(a) of the Transportation Article. 9 The Administrator may choose to ²⁵⁹ refer to the MAB, “the case of any licensee ... if the Administrator has good cause to believe that the driving of a vehicle by him would be contrary to public safety and welfare because of an existing or suspected mental or physical disability.” Id. at 16—118(c). After the Administrator refers a case, the Board reviews the individual’s physical and mental condition based upon information received from the driver and the driver’s doctors and treatment providers, see COMAR 11.17.03.03 (2007), 10 and makes a recommendation to the MVA. ²⁶⁰ See Maryland Code (1977, 2006 RepLVol.), Section 16-118(c) of the Transportation Article. The Board does not have the power to take any action against an individual’s driver’s license, although potentially it could recommend denial, suspension, modification or revocation of a driver’s license, as well as reexamination at an MVA office. See id. at 16-207; CO-MAR 11.17.03.04-.06 (2007).

If the MVA adopts the Medical Advisory Board’s proposed actions, the driver is then notified and is entitled to request an administrative hearing to challenge the MVA’s actions. See COMAR 11.17.03.05-.06 (2007). The MVA receives reports about individual drivers potentially prompting a MAB referral from numerous sources, such as the driver. See COMAR 11.17.03.02-1A (2007).

Moreover, as the MVA has indicated, and counsel for Ms. Delawter conceded, private citizens, hearing judges, law enforcement officers, and presumably any individual, including a relative, also could contact the MVA out of concern regarding a driver’s capability behind the wheel. See also 82 Op. Att’y Gen. 189, 189 (Md.1997) (noting that cause for a referral to the MAB can come from police officers or other citizens); 82 Op. Att’y Gen.

Ill, 112 (Md.1997) (“Occasionally, the MVA’s ‘good cause to believe that [a] licensee is unfit ... ’ derives from a report from someone who has observed the individual’s driving practices. Indeed, the information might come from a relative or someone else close to the driver. The informant might provide information to the MVA out of a fear that the driver’s deteriorated health could lead to a tragic accident if the driver continued to drive.”) (emphasis added) (alteration and ellipsis in original). Although anyone can provide such information to the MVA and although the ALJ in the instant case purported to “refer” Ms. Delawter to the Board, only the Administrator of the MVA has the authority to refer to the MAB pursuant to the express language of Section 16-118(c) of the Transportation Article, Maryland Code (1977, 2006 RepLVol.), which states ²⁶¹ that “[t]he Administrator may refer to the Medical Advisory Board____” The MVA has informed the ALJs of this, iterating that regardless of the terminology used, a “referral” to the Medical Advisory Board by an ALJ, as purportedly made in the instant case, will be treated only as a recommendation. 11 The DR-15 Notice Requirement In the case sub judice, the ALJ referred Ms. Delawter to the Medical Advisory Board.

The sole issue before us is whether the DR-15 Advice of Rights form needs to include a notification that an administrative law judge, after conducting a hearing requested by a driver to modify the suspension of the driver’s license, could refer the driver to the MAB. The Circuit Court judge reversed the ALJ’s referral to the Board, because Ms. Delawter did not receive notice on the DR-15 Advice of Rights form “that by exercising her right to a hearing she was facing a possible referral to the MAB.” We disagree. ²⁶² Under Maryland’s Implied Consent Law, a prerequisite to the MVA’s suspension of a driver’s license, after a hearing, is a finding that the police officer advised the driver of “the administrative sanctions that shall be imposed____” Maryland Code (1977, 2006 Repl.Vol.), Section 16-205.1(b)(2)(üi) of the Transportation Article. To document that police officers satisfactorily comply with the notice requirements, “[t]he MVA has developed an Advice of Rights Form, the DR-15, which accurately and adequately conveys to the driver the rights granted by the statute.” Forman v. MVA, 332 Md. 201, 218 , 630 A.2d 753, 762 (1993). See also Shepard, 399 Md. at 247 n. 3, 923 A.2d at 103 n. 3 (stating that the DR-15 “contains warnings required under [Section 16-205.1(b) ]”); MVA v. Karwacki, 340 Md. 271, 275 , 666 A.2d 511, 513 (1995); McAvoy v. State, 314 Md. 509, 512-13 , 551 A.2d 875, 876-77 (1989).

The DR-15 is “a standardized statement of a detained driver’s rights and the adverse administrative consequences,” Willis v. State, 302 Md. 363 , 368 n. 3, 488 A.2d 171 , 174 n. 3 (1985), 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 disqualification of a suspected drunk driver’s Commercial Driver’s License for a test refusal.” MVA v. Atterbeary, 368 Md. 480, 496 , 796 A.2d 75, 85 (2002). See also Fowler v. MVA, 394 Md. 331, 337 , 906 A.2d 347, 350 (2006) (“The use of this form is intended, first, to advise the arrested driver of the consequences of refusing or failing a chemical breath test and, second, to certify that the officer complied with the ... advice of rights requirement.”). The DR-15 Advice of Rights form, therefore, is derived from and memorializes the notice required under the Implied Consent Law, see Shepard, 399 Md. at 247 n. 3, 923 A.2d at 103 n. 3; Fowler, 394 Md. at 337-38 , 906 A.2d at 350 ; Illiano, 390 Md. at 269 n. 7, 888 A.2d at 332 n. 7; Atterbeary, 368 Md. at 496 , 796 A.2d at 85 ; Karwacki, 340 Md. at 275 , 666 A.2d at 513 ; McAvoy, 314 Md. at 512-13 , 551 A.2d at 876-77 ; Willis, 302 Md. at 368 n. 3, 488 A.2d at 174 n. 3; Sites v. State, 300 ²⁶³ Md. 702, 707 n. 1, 481 A.2d 192 , 194 n. 1 (1984), and we have had the occasion to address what notice must be provided to a detained driver under that law. In Motor Vehicle Administration v. Chamberlain, 326 Md. 306 , 604 A.2d 919 (1992), Chamberlain, a driver who refused to take an alcohol concentration test and had his license suspended, complained that the police failed to inform him when reading verbatim from a DR-15 that if he took and failed the alcohol concentration test, the MVA could modify his suspension or issue him a restricted license.

We rejected Chamberlain’s argument and concluded that the “[m]ere potential eligibility of suspension or a restrictive license is not ‘an administrative sanction’ ” within Section 16—205.1(b); we stated that, the critical provisions of the statute refer to “administrative sanctions that shall be imposed;” it is only those of which a driver is required to be informed. Mere potential eligibility for modification of suspension or a restrictive license is not an “administrative sanction that shall be imposed.” Eligibility for modification of suspension or for a restrictive license becomes reality only if the driver meets the statutory prerequisites, and, then, only if the ALJ, in the exercise of discretion, finds modification of suspension or issuance of a restrictive license appropriate. It is inconceivable that the Legislature intended “sanctions” to include advice concerning a mere potentiality. A driver who refuses a test or fails it is certain to have his license suspended; the application of § 16-205.1(f)(8)(v) is universal, not dependent upon individual factors.

On the other hand, the possibility that the suspension will be modified or a restrictive license issued is only that—a possibility, a mere potentiality. Moreover, whether that possibility will even be an incentive is an inquiry that is person specific; only if the person meets, or arguably meets, the statutory prerequisites will it be an incentive. Furthermore, as we have seen, it is not certain that, upon failure of the test, the driver’s suspension will be modified ²⁶⁴ or a restrictive license issued----Thus, it would be impossible to advise a driver without checking the driving record and, if checked, guessing not only as to the driver’s eligibility, but also the likelihood that he or she would be favorably considered. For this reason as well “sanctions” can only refer to an outcome that is certain to happen.

The suspension of the driver’s license must occur whenever the statutory prerequisites have been met, whether the driver refuses the test or fails the test after taking it. ❖ * * We hold that Chamberlain was properly advised of the “sanctions that shall be imposed” and, accordingly, that the trial court erred in ruling otherwise. Id. at 318-28, 604 A.2d at 925-27 (emphasis added) (citations omitted) (footnote omitted). See also Hare v. Motor Vehicle Administration, 326 Md. 296 , 604 A.2d 914 (1992), a companion case to Chamberlain , wherein Hare, who was advised of his rights when an officer read to him from a DR-15, argued that under the Fourteenth Amendment and Article 24 of the Declaration of Rights of the Maryland Constitution, he should have been advised that by taking the chemical sobriety test he would remain eligible for a modification of suspension or a restricted license, even if he failed. We rebuffed this argument; Chief Judge Robert M. Bell, writing for this Court, just as in Chamberlain , recognized: We have today held that § 16—205.1(b)(2) (iii) does not require a police officer to advise a driver of the mere possible eligibility for a modification of suspension or a restrictive license should that driver take and fail a chemical test.

The only advice that the officer must give the driver, we said, is that which is specifically set out in § 16-205.1(b)(l). * * * A driver need not be told of every conceivable incentive for taking a chemical test for alcohol or, for that matter, even one additional incentive not required by the statute. This ²⁶⁵ conclusion is, we think, buttressed both by Maryland law and common sense. As to the latter, when it is once determined that a driver must be apprised of additional incentives, there is no rational basis for determining which of those additional incentives must be covered and which are not of sufficient value to merit inclusion in the advice given the arrestee. Our cases teach that due process does not always require the State affirmatively to inform a defendant of the availability of options that might influence decision-making.

It requires no more than that the State not mislead the defendant or construct road blocks, thus unduly burdening that decision-making. Having provided the advice mandated by the statute, the police officer was not required to anticipate, or guess at, what incentive would have caused the driver to take the chemical test. Nor was he, as a matter of due process, required to provide any advice other than that the statute prescribed. Indeed, had he undertaken to provide additional information and it turned out to be misleading or inaccurate, that, in itself, may have been a denial of due process.

Id. at 300, 304, 306, 604 A.2d at 916, 917, 918-19 (citations omitted). 12 ²⁶⁶ In Meanor v. State, 364 Md. 511 , 774 A.2d 394 (2001), Meanor initially refused to take a breathalyzer test but later consented; thereafter, he was charged with driving under the influence. Before agreeing to the test, the officer read a DR-15 to Meanor, who also read the form. Meanor moved, in limine, to exclude the results of the breath test because the DR-15 did not indicate if he refused the test, that the MVA could modify the required suspension if he agreed to participate in the Ignition Interlock System Program. We concluded, however, that for a test refusal, “the issue remains governed by Chamberlain and Hare,” and “the officer must advise only as to the ‘administrative sanctions’ that will be imposed____The prospect of a modification of the suspension or a restrictive license under subsection (n)(4) is a mere possibility and not a sanction.

The test result was admissible.” Id. at 532, 774 A.2d at 406 (emphasis added). The Implied Consent Law, as we have heretofore held, requires notification of the sanctions specifically delineated therein, and does not require notification that an administrative law judge, after conducting a hearing requested by a driver to modify the driver’s license suspension could refer the driver to the Medical Advisory Board. If we were to hold that notice of the possible referral to the MAB was required, we would be inserting another provision in the statute, which we have consistently