Motor Vehicle Administration v. Karwacki

BELL, Judge. The issue this case presents is whether, at a probable cause hearing, held pursuant to Maryland Code (1977, 1992 Repl.Vol., 1994 Cum.Supp.), § 16-205.1(f)(7), of the Transportation Article, an administrative law judge (“ALJ”) may give greater credit to the sworn written statement of an absent police officer, who was not subpoenaed by either party, than to the conflicting testimony of the motorist. This ruling is precisely that which the ALJ made in suspending the driving privileges of Lee Daniel Karwacki, the respondent, for a second refusal to take an alcohol concentration test. See § 16-205.1(b)(l)(i)(2)(B).

The Circuit Court for Baltimore City, to which the appellee turned for judicial review, disagreed with the ALJ’s decision, more precisely with the process by which it was made, and so, reversed the decision of the ALJ. 1 The ²⁷⁴ Motor Vehicle Administration (MVA), the petitioner, timely filed a petition for certiorari, pursuant to Maryland Code (1984, 1995 ReplVol.) § 12-305 of the Courts and Judicial Proceedings Article, 2 which we granted. We shall reverse the judgment of the circuit court. I The respondent was stopped and detained by a Baltimore City Police Officer after he was observed driving through a red light. During the stop and detention, the officer made certain observations which led the officer reasonably to believe that the respondent had been driving while intoxicated.

Therefore, the officer noted these observations, in writing and under oath, on form DR-15A, “Officer Certification and Order of Suspension.” On that form, he also certified that he complied with § 16-205.1(b)(2). 3 That certification was that, ²⁷⁵ after detaining the respondent, he requested the respondent to take a test to determine alcohol concentration, which the respondent refused, “after being fully advised of sanctions that shall be imposed as provided on the advice of rights form DR-15.” Among the advice contained on the latter form is the following: By law, 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 with certain limitations, to take a test of breath or a test of blood to determine the alcohol concentration of the person’s breath or blood, or a blood test to determine drug or controlled dangerous substance content. You have the right to refuse to submit to the test. Your refusal shall result in an administrative suspension of your Maryland driver’s license or your driving privilege if you are a non-resident. The suspension by the Motor Vehicle Administration shall be 120 days for a first offense and one year for a second or subsequent offense. * * * If you refuse the test or submit to a test which indicates an alcohol concentration of 0.10 or more, the Motor Vehicle Administration shall be notified, your Maryland driver’s license shall be confiscated, an Order of Suspension issued, and a temporary license issued which allows you to continue driving for 45 days or until a hearing is completed, whichever occurs first. ²⁷⁶ Both the respondent and the officer signed the DR-15 form.

The respondent’s signature on that form certified that: I have read or have been read the Advice of Rights for a test and have been advised of administrative sanctions that shall be imposed for: (1) a refusal to take a test; (2) a test result indicating an alcohol concentration of 0.10 or more; or (3) a test result indicating an alcohol concentration of 0.04 or more involving a commercial motor vehicle. I understand that this requested test is in addition to any preliminary tests that were taken. Form DR-15A serves as the temporary license for a motorist whose driver’s license is confiscated for failure to take the alcohol test or failing the test. The respondent received a copy of Form DR-15A, receipt of which he acknowledged by signing the form in the place provided.

That form, as previously indicated, contained the officer’s certification. An advice of rights advisory similar to that contained on form DR-15 is also included on the back of form DR-15A. It states: Refusal to take a test for alcohol or a test for drugs or controlled dangerous substance requested by a police officer will result in the suspension of your Maryland driving privilege for 120 days for a first offense and one year for a second or subsequent offense. The respondent’s signature on the form did not specifically acknowledge either the officer’s certification or the advice of rights advisory form.

As permitted by § 16—205.1(f), the respondent requested an administrative hearing to show cause why his driver’s license or privilege should not be suspended for refusal to take an alcohol concentration test as requested. 4 Neither he nor the ²⁷⁷ MVA subpoenaed the police officer. Consequently, when the hearing ultimately was held, the only persons present, other than the ALJ, were the respondent and his counsel. The ALJ placed into evidence, as relevant to the hearing, Form DR-15A and Form DR-15. In addition, because the respondent previously had refused to take an alcohol test, for which his license had been suspended for 120 days, the record of that prior refusal and suspension was also placed into evidence.

Testifying at the hearing, the respondent acknowledged that the officer requested that he take a test and advised him that he could refuse the test. Contrary to the officer’s certification, however, he testified that he was told that, as a consequence of refusal, “[m]y license would be automatically—taken from me for 120 days.” The respondent denied that the officer told him what the consequences of a second refusal were. He stated further that had he been told that his license could be suspended for one year, he would have taken the test. The respondent also testified that he did not read either of the forms he signed and he did not believe that the officer had read them to him.

Finally, the respondent asserted that he had no recollection of the officer advising him of the conse ²⁷⁸ quences of failure of the alcohol test, ie., taking the test and getting a high reading. Perceiving the issue to be one of credibility, the ALJ ruled against the respondent and ordered his license suspended for one year. He found the certification of the officer to be more credible than the recollection of the respondent. He explained: You have your recollection that it wasn’t done, we do have the signatures on here, I’m finding that the—I find the certification more persuasive in that—more persuasive [than] your recollection again, primarily due to looking at the description, dazed, confused, staggering, unable to balance on one leg stand, I don’t think a person in this condition is a reliable witness if everything else is—on the other side is correct.

Again, if we had errors on the officer’s part, it looked like short cutting I’d say well, maybe we have a dispute here. But we’re looking at, again, recollection of a person that is not particularly a reliable witness at the time versus someone—there’s no evidence that they were under any influence. So I’m going to find that the Advice of Rights were given which would mean that petitioner is subject to this Section, 16-205.1. In his findings of fact, the ALJ concluded that the: “officer’s certification is more persuasive than petitioner’s recollection— especially due to the described condition at the time of petitioner.” The respondent sought judicial review in the Circuit Court for Baltimore City.

That court reversed the decision of the ALJ, finding it to be arbitrary and capricious and unsupported by competent and material evidence in light of the entire evidence. 5 Relying on Bruno v. State, 332 Md. 673 , 632 A.2d ²⁷⁹ 1192 (1993) and Barnes v. State, 31 Md.App. 25 , 354 A.2d 499 (1976), the court reasoned: That the Administrative Law Judge made certain determinations of reliability/eredibility without any factors apparent from the record which would have enabled a proper determination of credibility ... in that the officer did not appear and only the DR-15 and the certification was introduced as allowed by law____ Notwithstanding the fact that the licensee did in fact testify in open court and denied being advised ... that his license would be suspended for one year if there was more than one prior refusal. Ill The respondent does not challenge the aspect of the officer’s certification that relates to the grounds on which the officer stopped him or the sufficiency of the evidence of his alcohol use. The respondent’s only challenge is as to the sufficiency of the advice he was given with respect to the consequences of his refusal to take an alcohol test, that he, a second offender, was never fully apprised of the length of the suspension that would occur should he again refuse to take an alcohol test. Thus, the only issue before the ALJ was whether the officer “fully advised” the respondent of the consequences of his second refusal to take a test for alcohol.

That determination was a factual one. To make that determination, the ALJ had to evaluate the respondent’s testimony and assess its credibility in relation to the documentary evidence already admitted ²⁸⁰ into evidence. He had, in other words, to consider whether the officer’s certification that he had complied with § 16-205.1(b)(2), taking into account the respondent’s contradictory or conflicting testimony, constituted sufficient evidence on which to conclude that the respondent had been fully advised, as required by the implied consent law. It is well-settled in this State that it is the function of an administrative agency to make factual findings and to draw inferences from the facts found.

Maryland State Police v. Lindsey, 318 Md. 325, 334 , 568 A.2d 29, 33 (1990), Caucus v. Maryland Securities, 320 Md. 313, 324 , 577 A.2d 783, 788 (1990). Moreover, the scope of judicial review of an agency’s factual determinations is extremely narrow. Liberty Nursing Center v. Department of Health and Mental Hygiene, 330 Md. 433, 442 , 624 A.2d 941, 945 (1993). A reviewing court must defer to the agency’s factual findings and inferences that are supported by substantial evidence.

United Parcel v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994); Caucus, 320 Md. at 324 , 577 A.2d at 788 ; Lindsey, 318 Md. at 334 , 568 A.2d at 33 . In other words, a reviewing court evaluates the administrative agency’s fact finding results; it does not make an independent, de novo assessment of the evidence. Zeitschel v. Board of Education, 274 Md. 69, 82 , 332 A.2d 906, 913 (1975). If there is any substantial evidence in the record to support an agency’s factual determinations, the reviewing court must affirm the agency’s decision, which on its face is correct, and presumed to be valid.

Liberty Nursing Ctr., supra, 330 Md. at 442 , 624 A.2d at 945 ; Anderson v. Department of Public Safety, 330 Md. 187, 212 , 623 A.2d 198, 210 (1993); Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 302 , 641 A.2d 899, 908 (1994). For purposes of determining whether an administrative agency’s decision is supported by substantial evidence in the record, substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Caucus, 320 Md. at 324 , 577 A.2d at 788 . See also Liberty Nursing, supra, 330 Md. at 442, 624 A.2d at 945 ; State Election Board v. Billhimer, 314 Md. 46, 58 , 548 A.2d ²⁸¹ 819, 825 (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989); Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 , 390 A.2d 1119, 1123 (1978); Supervisor of Assessments v. Peter & John Radio Fellowship, Inc., 274 Md. 353, 355-56 , 335 A.2d 93, 94 (1975); Dickinson-Tidewater Inc. v. Supervisor of Assessments, 273 Md. 245, 256 , 329 A.2d 18, 25 (1974); Snowden v. Mayor & City Council of Baltimore, 224 Md. 443, 448 , 168 A.2d 390, 392 (1961). Under the implied consent law, prerequisite to the applicability of administrative sanctions for refusal to submit to a test for alcohol concentration or failing such a test, i.e. achieving a result of 0.10 or more at the time of testing, see § 16-205.1(b)(l)(i), the driver must have been requested to take an alcohol test and advised of the administrative sanctions “that shall be imposed” for refusal or failure.

Section 16-205.1(b). If the driver does not request an administrative hearing, the sanctions applicable shall be imposed “on receipt of a sworn statement from the officer that the person was so charged and refused to take a test, or was tested and the result indicated an alcohol concentration of 0.10 or more____” Section 16-205.1(b)(1). In the event that the driver requests an administrative hearing, the imposition of the sanctions is postponed until the factual findings required by § 16.205.1(f)(7)© have been made. One of the factual determinations required to be made by that section is whether the test was requested “after the person was fully advised of the administrative sanctions that shall be imposed” for a refusal or a test failure.

Section 16—205.1(f)(8)(i)(3). The respondent, as we have seen, requested an administrative hearing. The evidence bearing on the only contested issue raised by the respondent—the advice the police officer gave the respondent prior to requesting that he take a test for alcohol concentration—consisted of documentary evidence, namely, the police officer’s certification and order of suspension and the DR-15 advice of rights form, both signed by the officer, and the respondent’s oral testimony. ²⁸² The certification and order of suspension contained the officer’s sworn statement of the reasons the respondent was stopped and detained. In it, the officer also certified that “after being fully advised of sanctions that shall be imposed as provided in the advice of rights form DR-15, [the respondent] refused to take a test to determine alcohol concentration by this officer.” The advice of rights form, to which the officer’s certification referred, contains a detailed summary of the provisions of the implied consent statute.

It was signed by both the police officer and the respondent. More importantly, the respondent’s signature acknowledged that he read or had read to him the information in the advice of rights form, that he had been advised of the administrative sanctions that “shall be imposed” for a test refusal or a test failure, and that he refused the test. On the other hand, in his testimony, the respondent, denied that he had been fully advised of the administrative sanctions that would be imposed for a test refusal. More particularly, he testified that the officer did not advise him as to the consequences of a second refusal of an alcohol concentration test or for failing such test.

The sworn statement of the arresting officer is prima facie evidence of a test refusal. Section 16-205.1(f)(7)(ii). See Motor Vehicle Administration v. Vermeersch, 331 Md. 188, 193 , 626 A.2d 972, 975 (1993). Moreover, in Forman v. Motor Vehicle Administration, 332 Md. 201, 218 , 630 A.2d 753, 762 (1993), this Court explicitly held that the advice of rights form “accurately and adequately conveys to the driver the rights granted by the [implied consent] statute.” See also Motor Vehicle Administration v. Chamberlain, 326 Md. 306 , 604 A.2d 919 (1992) and Hare v. Motor Vehicle Administration, 326 Md. 296 , 604 A.2d 914 (1992), in neither of which was the advice gleaned from the DR-15 form questioned as not providing full advice of administrative sanctions that shall be imposed.

The respondent apparently does not challenge that the sworn statement of the officer provided prima facie evidence ²⁸³ of the test refusal. He neither objected to its admission into evidence, nor has he ever made a contrary argument. 6 Being prima facie evidence of a test refusal, the sworn statement of the officer, unless explained or contradicted, was sufficient to establish that the respondent refused to take an alcohol concentration test. Prima facie evidence is [e]vidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient.

Evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence. Black’s Law Dictionary 1190 (6th Ed.1990). In Stanley v. State, 313 Md. 50, 60 , 542 A.2d 1267, 1271 (1988), this Court noted that while “ ‘prima facie case’, [in some contexts] ‘may be used by courts to describe the plaintiffs burden of producing enough evidence to permit the trier of fact to infer the fact at issue,’ in the Title VII context (and by implication, the Batson [v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) ] context), the phrase denotes ‘the establishment of a legally mandatory, rebuttable presumption.’ ” Stanley, 313 Md. at 60 , 542 A.2d at 1272 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 , 254 n. 7, 101 S.Ct. 1089 , 1094 n. 7, 67 L.Ed.2d 207 , 216 n. 7). Prima facie evidence may be overcome by other evidence, whether documentary or testimonial, which rebuts or contradicts it.

But whether evidence offered to rebut or contradict the prima facie evidence actually does so is a matter for the trier of fact to determine. In this case, the trier of fact is the ALJ, whose function it is to resolve conflicting evidence and, where inconsistent inferences may be drawn from the same evidence,