Motor Vehicle Administration v. McMillan

PER CURIAM. The issue before us is whether a test technician’s certification that a driver refused to complete an alcohol concentration ⁵⁶³ test after initially submitting to it — when coupled with the evidence that the driver had been explained the testing procedure and was in “good health” — is prima facie evidence of refusal under Section 16-205.1 of the Transportation Article (“TA”) of the Maryland Annotated Code. 1 We hold that it is, affirming the findings of the Administrative Law Judge (“ALJ”) of the Maryland Office of Administrative Hearings 2 . Facts and Legal Proceedings In the early morning hours of August 16, 2009, two deputies observed an Infiniti automobile speeding on Route 1 in Carroll County. They stopped the vehicle and identified the driver as Donald Wade McMillan.

His eyes were bloodshot and glassy, and he smelled of alcohol. The deputies arrested McMillan after he failed a field sobriety test and brought him to the sheriffs office. Once there, McMillan was read his “Advice of Rights” under TA Section 16-205.1 and agreed to submit to the alcohol concentration test. The test technician, Corporal Sutton, marked a DR-15A form indicating that the testing procedure had been explained to McMillan and that he appeared to be in good health.

According to McMillan, he attempted to blow into the Intoximeter seven times, but was not blowing either long or hard enough to produce a reading. Sutton described McMillan’s failed attempt to complete the test by writing on the DR-15A form: “Subject refused to blow into the [IJntoximeter.” Sutton did not mark the box labeled ⁵⁶⁴ “Refusal — Insufficient Breath” but indicated additionally that McMillan “refused to take a test to determine alcohol concentration when requested by the Police Officer.” The deputies confiscated McMillan’s license, ordered it suspended, and issued a temporary license. McMillan made a timely request under TA Section 16-205.1(f) for a hearing before an ALJ. McMillan explained at the hearing that he had not slept for two nights prior to the arrest and was pulled over on his way home from a concert where “people were throwing pitchers of beer.” He attributed his poor performance on the field sobriety test to his involvement in a motorcycle accident that “messed up both [of his] ankles.” With regard to the Intoximeter test administered at the Sheriffs office, McMillan said that he had asked Sutton to demonstrate how to properly breathe into the mouthpiece and even offered to give a blood sample at a hospital, but Sutton refused.

After the seventh unsuccessful attempt, Sutton told McMillan he would be written up as refusing the test. The ALJ did not find McMillan’s testimony credible. 3 She reasoned that it is not difficult to blow into the machine when sober and following the directions of the technician. The ALJ also observed that McMillan appeared to be in good health and did not testify to any medical problems that might have affected him during the test. In the ALJ’s eyes, the test technician’s affirmation that McMillan “refused to blow into the [I]ntoximeter” was more credible than McMillan’s denial.

Thus, she found that McMillan refused to take the breath test and imposed the sentence mandated by the statute: a 120-day suspension of his driver’s license and a one-year suspension of his commercial driver’s license. McMillan filed a petition for judicial review in the Circuit Court for Cecil County, which reversed the ALJ’s judgment. Referencing Borbon v. Motor Vehicle Admin., 345 Md. 267 , 691 A.2d 1328 (1997), the court held that the Motor Vehicle ⁵⁶⁵ Administration (“MVA”) failed to show evidence that McMillan refused the test. The MVA petitioned for certiorari, which we granted on July 21, 2010. 4 See Motor Vehicle Admin. v. McMillan, 415 Md. 114 , 999 A.2d 179 (2010).

Discussion I. Standard of Review As we recently reiterated in Motor Vehicle Admin. v. Lipella, in reviewing a decision of a state administrative agency, “we review the action of the agency directly, rather than the judgment of the intervening reviewing court.” 427 Md. 455, 466 , 48 A.3d 803 (2012) (filed June 25, 2012) (citing Consumer Prot. Div. v. Morgan, 387 Md. 125, 160 , 874 A.2d 919, 939 (2005)). Our role in analyzing the decision of an administrative agency 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.” Motor Vehicle Admin. v. Weller, 390 Md. 115, 141 , 887 A.2d 1042, 1057-58 (2005) (citations omitted). The “substantial evidence test” has been met if “a reasoning mind reasonably could have reached the factual conclusion the agency reached.” Id.

Moreover, a “reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record,” and “must review the agency’s decision in the light most favorable to it.” Id. This is so because “it is the agency’s province to resolve conflicting evidence and to draw inferences from that evidence.” Id. With this standard in mind, under the Maryland Administrative Procedure Act, a reviewing court may “(1) remand the case for further proceedings; (2) affirm the final decision; or ⁵⁶⁶ (3) reverse or modify the decision.” 5 Md.Code (1957, 2009 Repl. Vol.), State Gov’t Art., § 10-222(h).

II

Analysis Section 16-205.1 of the Transportation Article of the Maryland Code allows the MVA to suspend a driver’s license and disqualify a commercial driver’s license based on a refusal to submit to a chemical test for intoxication. Md.Code (1977, 2009 Repl.Vol., 2011 Cum.Supp.), TA § 16-205.1(b)(i)(3) & (in). A refusal may be found not only in instances when the driver outright refuses to take the test, but also when that conclusion is inferred from conduct. This may happen in situations where the driver first agrees to submit to testing but later deliberately frustrates the testing procedure by blowing improperly into the testing device.

Borbon, 345 Md. at 273 , 691 A.2d at 1331 . The MVA, as a “proponent” of suspensions, has “the burden of establishing that there had been a refusal by conduct.” Id. at 280 , 691 A.2d at 1334 . Once the MVA offers some evidence to “support the conclusion of test refusal,” the burden shifts to the driver to demonstrate that there is an innocent explanation for his or her failure to complete the test. Id. at 281 , 691 A.2d at 1335 .

If the driver does not do that, the suspension is proper based on the MVA’s documentary record showing that the driver refused to complete the test. A. The Prima Facie Evidence of Refusal Section 16-205.1 (f)(7)(ii) gives prima facie evidence effect to a “sworn statement of the police officer and of the test ⁵⁶⁷ technician or analyst ... of a test refusal.” TA § 16-205. l(f)(7)(ii). We have interpreted this section, however, as applying only to an express refusal to take the test, as opposed to “a refusal based upon intentional frustration of a test during the administration of the test.” Borbon, 345 Md. at 278 , 691 A.2d at 1333 . In instances such as here, where the motorist first agrees to take the test but later fails to complete it, the MVA “must produce some evidence that the driver intentionally frustrated the test and thus, by conduct, refused it.” See id. at 273 , 691 A.2d at 1331 .

We had an opportunity to analyze the MVA’s burden of proof in Borbon . There, similarly to this case, the driver initially consented to the test but failed to complete it. As evidence of the driver’s refusal to submit to the test, the MVA offered two types of documentary evidence. First, there was a machine-generated report stating that there was “insufficient breath” for a reading. 6 Id. at 271 , 691 A.2d at 1330 .

Second, the forms contained the word “refusal” in the blanks intended for test results. 7 Id. Importantly, neither the statements of the arresting officer nor the test technician “in-elude[d] any facts observed by them that tend to support the conclusion of a test refusal.” 8 Id. at 281 , 691 A.2d at 1335 . Based on that evidence, we held that — without more informa ⁵⁶⁸ tion — it was impossible to know “whether Borbon was unwilling or unable to produce the required volume of deep lung air.” Id. at 279-80 , 691 A.2d at 1334 . We reasoned, however, that the outcome could have been different if there had been some evidence indicating what led the test technician to conclude that Borbon intentionally frustrated the test: “For example, if Borbon had no apparent health problems, a statement to that effect might well have been enough to tip from equipoise and require Borbon to go forward with evidence.” Id. at 281 , 691 A.2d at 1335 .

We explained that so long as the technician gave a basis for the conclusion that the driver refused the test, “the knowledge of facts explaining why insufficient breath was reported by the machine would have been wholly with the licensee. That posture of the case might well give rise to a presumption that the licensee was unwilling to cooperate.” Id. In this case, McMillan’s license was confiscated after Corporal Sutton determined that McMillan refused to submit to the test. Specifically, Sutton described McMillan’s failed attempt to complete the test by making two notations on the DR-15A form: by writing “Subject refused to blow into the [IJntoximeter” on the form, and by checking the pre-printed box to indicate that the driver “refused to take a test to determine alcohol concentration when requested by the Police Officer.” Unlike the documentary evidence in Borbon that provided no basis for the test technician’s conclusion that Borbon’s failure to complete the test resulted from his “unwillingness,” rather than physical “inability,” to submit to the test, id. at 279-80 , 691 A.2d at 1334 , in this case the DR 15-A form does contain such information.

Namely, in the Certification of Test Technician or Analyst section of the form, Sutton checked two boxes: (1) indicating that the testing procedure had been explained to McMillan, and (2) that he appeared to be in good