Motor Vehicle Administration v. Krafft

McDonald, J. As part of the effort to detect drunk drivers and keep them off the State’s roadways, the General Assembly has enacted a statute known as “the implied consent, administrative per se law.” 1 That law authorizes a law enforcement officer who believes that an individual has been driving (or attempting to drive) while impaired by alcohol to ask the individual to take a breath test for blood alcohol concentration. If the individual refuses, the individual’s driving privileges in Maryland are automatically suspended for a time period specified in the statute. The law allows an individual whose driving privileges are suspended under the implied consent, administrative per se law to challenge the suspension at an administrative hearing. The statute limits the issues that may be contested at such a hearing.

In a test refusal case, those issues ordinarily are: (1) whether the officer had reasonable grounds for believing that the individual was driving (or attempting to drive) while impaired, (2) whether there was evidence of alcohol use by the individual, (3) whether the officer properly advised the individual in accordance with the statute when requesting the breath test, and (4) whether the individual refused the test. ⁵⁹² These two cases concern administrative hearings in test refusal cases. In each case, the administrative law judge (“ALJ”) overturned the suspension on the ground that, while it was undisputed that the individual was under the influence of alcohol when the individual was detained by a law enforcement officer, it was not established, by a preponderance of the evidence, that the individual had actually been driving (or attempting to drive) at that time. We hold that, in a test refusal case, there is no requirement that the Motor Vehicle Administration (“MVA”) prove that the individual was actually driving (or attempting to drive) while under the influence of alcohol. Rather, the relevant question is whether the officer had reasonable grounds to believe that that the individual was doing so.

In one of these cases, the ALJ clearly found that the officer had reasonable grounds, and thus the suspension should have been upheld. In the other case, the ALJ’s finding on the issue of reasonable grounds was at best ambiguous, and we remand the case for clarification. I—I Background A. The Implied Consent, Administrative Per Se Law Every state has enacted some form of an implied consent law as part of its strategy to combat drunk driving. See Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 1566 , 185 L.Ed.2d 696 (2013).

The Maryland implied consent, administrative per se law appears in Maryland Code, Transportation Article (“TR”), § 16-205.1. That law authorizes a law enforcement officer to request a suspected drunk driver to submit to a chemical test to determine blood alcohol content in certain circumstances. 2 If the test shows a blood alcohol concentration above a certain amount, or if the individual refuses to take the ⁵⁹³ test, an administrative suspension of the individual’s driving privileges follows. Implied Consent. As to implied consent, the statute provides that anyone who drives (or attempts to drive) a motor vehicle in Maryland “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). 3 Although the statute deems all motorists in Mary-land to have consented to take a breath test, it nonetheless allows an individual detained under suspicion of drunk driving to elect at that time whether or not to take the test.

TR § 16-205.1(b). 4 Thus, while consent is implied, it may be withdrawn. But a refusal to take the test has consequences. That is where the “administrative per se” aspect of the statute comes in. Administrative Per Se.

At the time of the events underlying these cases, a refusal to take the test resulted in an automatic administrative license suspension of 120 days for the first such refusal, and in a suspension of one year for a second or subsequent test refusal. TR § 16-205.1(b)(l)(i)3, (b)(l)(ii)3 (2015). 5 The alternative, of course, would be for the individual to take the test. If the individual does so, the test result will either carry a lesser period of administrative suspension or no suspension at all. 6 In either case, a suspension may be modi ⁵⁹⁴ fied in favor of a restricted license that allows the individual to drive for employment, education, 01; similar purposes. TR § 16-205.1(o), (p).

Thus, the statute provides an incentive to take the test, at least in terms of the potential administrative sanction. 7 The automatic suspension for a test refusal, and the greater sanction compared to an adverse test result, are designed to encourage drivers to take the breath test, so that impaired drivers may be detected and removed from the roadways in the interest of safety. Motor Vehicle Administration v. Deering, 4 38 Md. 611 , 616, 92 A.3d 495 (2014). Procedure and Appeal. Once a law enforcement officer has detained a suspected drunk driver, the officer is to advise the detainee, among other things, of the possible administrative sanctions for a refusal to take the breath test and for test results that show a 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 MVA for that purpose, known as the DR-15 form (Advice of Rights). That form sets forth a detained driver’s options under the implied consent, administrative per se 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. The officer indicates on ⁵⁹⁵ the form the election made by the individual and certifies by signature that the individual has been advised of those rights.

There is also a space on the form for the individual to confirm his or her election by signature. If the individual refuses to take the test or fails the test, the officer is to serve an order of suspension on the individual, confiscate his or her 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 MVA has created another form, known as the DR-15A form (Officer’s Certification and Order of Suspension), for this purpose.

On that form, the officer summarizes, under penalty of perjury, the facts that led the officer to suspect the individual of drunk driving and records other information concerning the individual and the incident. The individual’s copy of the form serves as a temporary license pending any hearing. If the individual requests an administrative hearing to contest the suspension, it is to be conducted under the contested case provisions of the State Administrative Procedure Act. TR §§ 16-205.1(f), 12-206; Maryland Code, State Government Article (“SG”), § 10-201 et seq.

Under a delegation from the MVA, the hearing is conducted by an ALJ of the Office of Administrative Hearings (“OAH”). TR § 12-104(e); COMAR 11.11.02.07. The statute enumerates the specific issues that can be raised at the license suspension hearing. In a test refusal case, those issues are usually limited to: (1) whether the officer had reasonable grounds for believing that the individual was driving (or attempting to drive) while impaired, (2) whether there was evidence of alcohol use by the individual, (8) whether the officer properly advised the individual in accordance with the statute when requesting the breath test, and (4) whether the individual refused the test.

TR § 16-205.1(f)(7)(i)l—4 8 ; see also Motor Vehicle Administration v. McDorman, 364 Md. 253, 259-60 , 772 A.2d 309 (2001). ⁵⁹⁶ At the conclusion of the administrative hearing, if the ALJ is persuaded that the criteria for a suspension under the implied consent, administrative per se law are satisfied, the ALJ is to uphold the license suspension. TR § 16—205.1(f)(8). If the ALJ finds that the criteria have not been met, the ALJ takes “no action”—ie., overturns the suspension. In either case, the ALJ’s decision is the final decision of the MVA, COMAR 11.11,02.07A.

The OAH has apparently developed a form on which an ALJ may document the ALJ’s findings on the relevant issues. Either party may seek judicial review pursuant to the State Administrative Procedure Act. TR § 12-209; SG § 10-222. After review by a circuit court, any further appeal must be pursued by a petition for writ of certiorari directly to this Court.

Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 12-305. The Predicate. A law enforcement officer has no authority to arbitrarily request an individual—even one who is driving a car—to take a breath test or face legal consequences. As the above outline of the statute indicates, there is a predicate for a test request that triggers the operation of the implied consent, administrative per se law: the law enforcement officer must have detained the individual upon a reasonable suspicion of drunk driving.

Thus, a suspension for a test refusal is to be upheld only if the law enforcement officer who detained the suspected drunk driver had “reasonable grounds to believe” that the individual was driving (or attempting to drive) while impaired by alcohol. These cases concern application of that predicate. ⁵⁹⁷ B. Facts and Proceedings 1. MVA v. Styslinger Circumstances of Test Refusal The essential facts are undisputed. On March 28, 2015, at approximately 1:10 a.m., Officer Alex Pockett of the Gaithers-burg City Police Department responded to a report that a driver was slumped over his steering wheel at a location on Washington Boulevard in Gaithersburg.

Upon his arrival, Officer Pockett found Paul M. Styslinger asleep in the driver’s seat with the motor running. Officer Pockett detected a moderate odor of alcohol on the breath of Mr. Styslinger who, upon waking, admitted that he had been drinking alcohol that evening. Officer Pockett asked Mr. Styslinger to perform some standard field sobriety tests, which Mr. Styslinger was unable to do to the officer’s satisfaction. Officer Pockett then detained Mr, Styslinger and transported him to the Gaithersburg police station for further investigation.

At the police station, Officer Pockett advised Mr. Styslinger of his rights by reading him the DR-15 form. He asked Mr. Styslinger if he was willing to undergo a blood alcohol concentration test. Mr. Styslinger refused to submit to a test. Officer Pocket confiscated Mr. Styslinger’s driver’s license, and issued an order of suspension together with a temporary license on the DR-15A form.

Mr. Styslinger made a timely request for an administrative hearing concerning the suspension. The Administrative Hearing The administrative hearing was conducted by an ALJ on July 31, 2015. As is typically the case, the MVA’s evidence consisted entirely of documents, including the forms related to Mr. Styslinger’s encounter with Officer Pockett on March 28, 2015, Among the documents submitted were the DR-15A form (Officer’s Certification and Order of Suspension) and the DR-15 form (Advice of Rights), which documented Mr. Styslinger’s test refusal and which had been signed by both the officer and Mr. Styslinger. On the DR-15A form, Officer Pockett stated ⁵⁹⁸ under penalty of perjury that he had reasonable grounds to believe that Mr. Styslinger had been driving (or attempting to drive) while under the influence of alcohol and briefly summarized his encounter with Mr. Styslinger that evening.

At the hearing the ALJ also accessed Mr. Styslinger’s driving record, which reflected a prior test refusal and suspension 15 years earlier. After the MVA records were admitted in evidence, Mr. Styslinger presented his case through the testimony of himself and Alisa Cottone, with whom he lived and with whom he had a child. Mr. Styslinger admitted that he had parked his car before visiting a gym and drinking at two bars that evening, but denied that he had attempted to drive after doing so. He said that he had contacted the Uber car service for a ride home and was waiting in his car with the motor running in order to stay warm when he fell asleep until he was wakened by the officer.

There was no direct evidence from Mr. Stys-linger’s phone records or Uber documenting that he had contacted Uber. However, Ms. Cottone testified that he had called her that night and told her that he was going to use Uber to get home. 9 At the conclusion of Mr. Styslinger’s evidence, his counsel asked the ALJ to take no action, arguing that there was no evidence that Mr. Styslinger had driven or attempted to drive his car while impaired. 10 The ALJ was unpersuaded at that point that he should “grant a no action” and continued the ⁵⁹⁹ ease in order to have Officer Poekett subpoenaed “to hear a little bit more from the officer about what the officer recollects that he observed.” Ultimately, Officer Poekett did not testify in person and, at a continuation of the hearing on November 12, 2015, the ALJ rendered a decision based on the evidence previously adduced. 11 At that time, the ALJ took no action on the suspension. The ALJ explained his decision as follows. He first found that Officer Poekett “had reasonable grounds to believe that [Mr. Styslinger] was driving or attempting to drive a motor vehicle while under the influence of alcohol” based on the officer’s report that he found Mr. Styslinger asleep in his car with the motor running, that Mr. Styslinger’s breath smelled of alcohol, and that Mr. Styslinger failed the field sobriety tests.

The ALJ also found that Officer Poekett had properly advised Mr. Styslinger of the potential administrative sanctions when he requested Mr. Styslinger to take a breath test and that Mr. Styslinger had refused to submit to the test. However, the ALJ decided that no action was the appropriate disposition because “the MVA has not met its burden of proving by a preponderance of the evidence [that Mr. Stys-linger] drove or attempted to drive.” In making that finding, the ALJ referred to the testimony of Mr. Styslinger that he was in the car only for purposes of shelter and the testimony of both Mr. Styslinger and Ms. Cottone that he had contacted Uber for a ride home. 12 The ALJ characterized his decision as ⁶⁰⁰ a “close call,” given that the car engine was running at the time of the discovery of Mr. Styslinger by the officer. On the OAH form for such hearings, the ALJ included written “Findings of Facts” consistent with his oral decision. 13 The Circuit Court Ruling The MVA sought judicial review of the ALJ’s decision in the Circuit Court for Montgomery County. The MVA argued that it need only show that Officer Pockett had reasonable grounds to believe that Mr. Styslinger was driving (or attempting to drive) while impaired—and need not show that Mr. Styslinger had actually done so—in order to support an administrative license suspension in a test refusal case.

After conducting a hearing, the Circuit Court affirmed the ALJ’s decision. The court acknowledged that the statute limited the issues in a test refusal case, but believed that the MVA must prove, as “a prerequisite to applying the implied consent law,” that the licensee was driving (or attempting to drive). We subsequently granted the MVA’s petition for a writ of certiorari to review whether the ALJ applied the correct legal standard in this case. 2. MVA v. Krafft Circumstances of Test Refusal On October 10, 2015, at approximately 9:14 p.m., Trooper John Dize of the Maryland State Police responded to a report of an accident in front of a residential address in Princess Anne in Somerset County.

Upon his arrival, Trooper Dize found an empty vehicle with a Maryland license plate. He ran ⁶⁰¹ the registration record of the vehicle and learned that it was registered to Mr. Krafft, who resided at that address. Trooper Dize approached the house and observed that the door was open with Mr. Krafft “passed out on his couch.” Trooper Dize began to question Mr. Krafft, who could barely stand up. Trooper Dize also noted that Mr. Krafft had a strong odor of alcohol on his breath, slurred speech, and red and glassy eyes.

During their conversation, Mr. Krafft admitted to Trooper Dize that he had been drinking, and Trooper Dize asked him to take a breath test for blood alcohol concentration. Mr. Krafft was provided with the DR-15 form (Advice of Rights) and refused the requested breath test for blood alcohol concentration. Trooper Dize then confiscated Mr. Krafft’s license and completed the DR-15A form (Officer’s Certification and Order of Suspension), which Mr. Krafft declined to sign. The Administrative Hearing Mr. Krafft requested an administrative hearing concerning the suspension.

At the hearing on February 10, 2016, the ALJ accepted documents submitted by the MVA in support of the suspension—in particular, Mr. Krafft’s driving record, the DR-15 form and the DR-15A form. Mr. Krafft did not testify or challenge the substance of Trooper Dize’s description of the events of that evening. Mr. Krafft’s lawyer argued that the MVA documents and, in particular, the trooper’s statement of reasonable grounds, were insufficient to support the suspension. He argued that, even if there were reasonable grounds to believe that Mr. Krafft was impaired or under the influence of alcohol, Trooper Dize had not set forth reasonable grounds to believe that Mr. Krafft was driving (or attempting to drive) while he was in that condition.

The ALJ stated at the hearing that she agreed that the Officer’s Certification provided evidence that Mr. Krafft had consumed alcohol that evening. However, she believed that it was insufficient to establish, by a preponderance of evidence, that Mr. Krafft had been driving. The ALJ stated: ⁶⁰² Despite the vehicle being owned by Mr. Krafft, based on the information in this Certification it could have been somebody else driving. It could have been Mr. Krafft driving before he consumed alcohol.

I just can’t conclude that the preponderance of the evidence establishes the MVA’s case and because of that I’m going to take no action. The ALJ documented her decision on the OAH form as follows. In the block concerning whether Trooper Dize “had reasonable grounds to believe” that the Mr. Krafft was driving or attempting to drive a motor vehicle while under the influence or impaired by alcohol, she entered “n/a.” In the block concerning whether there was evidence of the use of alcohol, she also entered “n/a.” In response to questions on the form as to whether Trooper Dize had advised Mr. Krafft of the administrative sanctions, whether the trooper had asked Mr. Krafft to take a test, and whether Mr. Krafft had refused to take the test, the ALJ checked “no” in each instance. Finally, in a large block entitled “Other Facts (if needed)” the ALJ reiterated her oral statement at the hearing that the MVA had not demonstrated that Mr. Krafft had been driving while impaired by a “preponderance of the evidence.” The Circuit Court Ruling The MVA sought judicial review of the ALJ’s decision in the Circuit Court for Somerset County.

After conducting a hearing, the Circuit Court ruled from the bench and affirmed the ALJ’s decision on the grounds that there was no error of law and that the court was not persuaded that Mr. Krafft had been driving. We subsequently granted the MVA’s petition for a writ of certiorari to review whether the ALJ applied the correct legal standard in this case. II Discussion A. Standard of Review In reviewing a decision of an administrative agency, we directly evaluate that decision under the same standard of ⁶⁰³ review as a circuit court. Motor Vehicle Administration v. Shea, 415 Md. 1, 15 , 997 A.2d 768 (2010).

A court that reviews an agency decision assesses whether there is substantial evidence in the record to support the decision and whether the decision is based upon an error of law. Id. at 14-15 , 997 A.2d 768 . This standard accords less deference to an agency’s legal conclusions than to its fact findings, although a reviewing court may accord some weight to an agency’s interpretation and application of a statute that it administers. Id.

B. Legal Standard for License Suspension in Test Refusal . Cases We granted certiorari in both of these eases to consider whether the ALJs applied the correct legal standard in deciding to overturn the administrative license suspensions. In both cases the issue is whether, in a test refusal case, the MVA is required to show that the individual was driving (or attempting to drive) while impaired—as opposed to showing only that the law enforcement officer had “reasonable grounds to believe” that the individual was doing so. This is a question of law.

It may be tempting to treat an administrative hearing under TR § 16-205.1(0 as a civil analog to a criminal DUI prosecution, in which the MVA would be required to make the same showing as the criminal prosecutor, but bear a lesser burden of proof. In other words, under this conception, the MVA would be required to prove that the individual was driving (or attempting to drive) while impaired, but need only do so by a preponderance of the evidence while a criminal prosecutor would be required to make the same showing beyond a reasonable doubt. However, in a test refusal case, such a conception of the administrative hearing is wrong on at least two counts. Proof of Predicate for Test Request v. Proof of Actual Driving First, there is no requirement that the MVA establish that the individual was actually driving (or attempting to drive).

In ⁶⁰⁴ a test refusal case, the gravamen of the offense is the refusal to take the test. Usually, there is no dispute that the individual refused to take the test. Instead, the validity of the suspension often turns on whether the officer was authorized to ask the individual to take the test in the first place. Thus, the issue in a test refusal case is usually whether the predicate for the test request—ie,, that the officer had “reasonable grounds to believe” that the individual had been driving (or attempting to drive) while impaired—existed at the time the officer made the request.

Obviously, the same observations that would lead an officer to have such a reasonable belief are also likely to be evidence that the individual actually drove while impaired, but “reasonable grounds” and conclusive proof can be two different things. And it is important to keep distinct what must be shown. The plain language of the statute is clear as to what must be shown at a suspension hearing. Under TR § 16—205.1(f)(7)(i), the issues to be determined by an ALJ in a test refusal case are: (1) whether the officer had reasonable grounds for believing that the individual was driving (or attempting to drive) while impaired, (2) whether there was evidence of alcohol use by the individual, (3) whether the officer properly advised the individual in accordance with the statute when requesting the breath test, and (4) whether the individual refused the test.

A determination of whether the individual actually drove (or attempted to drive) while impaired does not appear on that list. Nothing suggests that there should be additional factors considered beyond those detailed in the statute. Despite the clarity of this language in subsection (f)(7) of the statute, it might be argued that the issue of actual driving is imported into an administrative hearing by virtue of another provision of the statute—subsection (a)(2). As indicated earlier, that subsection provides that “any person who drives or attempts to drive” in Maryland is subject to the implied consent, administrative per se law.

The argument, then, is that there must be proof of actual driving for the statute to apply ⁶⁰⁵ in the first place. 14 This interpretation of law appears to contemplate that a holder of a Maryland license repeatedly gives implied consent (by driving) and then withdraws it (by parking). Apart from the fact that this interpretation would have the statute flashing on and off even for Maryland license holders who make use of that privilege every day, it would render the statute internally inconsistent. Under this conception of the statute the MVA would always have to establish that an individual had been driving (or