Motor Vehicle Administration v. Shea

BARBERA, J. This appeal involves § 16-205.1 of the Transportation Article of the Maryland Code, often referred to as the “implied consent, administrative per se law” (hereinafter, “the Statute”). See, e.g., Motor Vehicle Admin. v. Richards, 356 Md. 356, 362 , 739 A.2d 58, 62 (1999). The Statute authorizes a police officer who has “reasonable grounds to believe” that a driver “is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol [or] while impaired by alcohol” to request the driver to submit to a test to determine the driver’s blood alcohol concentration (“BAC”). See § 16.205.1(b)(2). 1 If the driver agrees to the test and the test discloses a BAC of 0.15 or greater, then the Statute provides that the officer is to present to the driver an order of automatic suspension by the Motor Vehicle Administration (“MVA”).

See § 16—205.1(b)(3)(i)—(ii). The Statute permits ⁵ the driver to request a hearing at the Office of Administrative Hearings to show cause why the driver’s license should not be suspended. At that hearing, the driver may challenge, among other matters, whether the officer had the requisite reasonable grounds to make the request for testing. See § 16-205.1(f)(7)(i)(l).

Adam Leigh Shea, Respondent, was stopped by a police officer who observed him driving while not wearing a seatbelt. During the stop, the officer smelled a moderate odor of alcohol emanating from Respondent’s person. The officer conducted field sobriety tests (the results of which are not reflected in the record) and then arrested Respondent. At the police station, the officer advised Respondent of his rights and the potential penalties under the Statute, and asked him if he wished to take a breath test to ascertain his BAC.

Respondent agreed to the test. The test result disclosed a BAC of 0.18. Pursuant to the Statute, the officer presented Respondent with an order of administrative suspension of his driver’s license. Thereafter, Respondent requested a show cause hearing.

At the hearing he argued that: (1) the police officer who detained him lacked the requisite reasonable grounds to request the test; and (2) the test result was invalid. The Administrative Law Judge (ALJ) rejected the first argument and declined to consider the second, reasoning that the Statute did not permit Respondent to make the latter argument at a show cause hearing. The ALJ ordered the suspension of Respondent’s driver’s license for 90 days, and, as the Statute authorized the ALJ to do, promptly ordered the suspension stayed for one year, conditioned upon Respondent’s participation in the Ignition Interlock Program. See § 16-205.1(n)(4)(ii).

Respondent sought judicial review of the ALJ’s decision, raising in the petition the arguments he had presented to the ALJ. 2 The Circuit Court for Baltimore County reversed the ⁶ decision of the AL J because, in the court’s view, the record did not contain substantial evidence to support the ALJ’s finding that the officer had reasonable grounds to request the test. In coming to that determination, the court decided, as a preliminary matter, that the officer did not have reasonable suspicion to conduct the field sobriety tests and, consequently, “all actions thereafter, [including, presumably, the test request and results,] are legally unsupportable.” We granted the MVA’s petition to review the judgment of the Circuit Court. For the reasons that follow, we reverse that judgment. I. The facts leading to the suspension of Respondent’s driver’s license can be briefly stated.

On the night of April 24, 2007, Officer William Phelps of the Baltimore City Police Department stopped the vehicle that Respondent was driving. Officer Phelps’s description of the stop is contained on the MVA Form DR-15A he later completed. 3 He wrote: “Driver observed operating vehicle w/o [meaning “without”] seat belt on. After being stopped a moderate odor of a(sic) alcohol beverage was emanating from his person—Driver was given SFST’s [meaning “standard field sobriety tests”] and placed in custody.” We surmise from our reading of the transcript of the hearing before the ALJ that Respondent was charged with one or more alcohol-related driving offenses, and was found guilty of driving while impaired by alcohol. See Md.Code (1977, 2009 Repl.

Vol), § 21-902 of the Transportation Article. After taking Respondent into custody, Officer Phelps drove him to the police station. There, Officer Phelps asked Respondent to submit to a breath test to determine his BAC. 4 As ⁷ is required by the Statute, Respondent either read, or had read to him, MVA Form DR-15 “Advice of Rights” and agreed to take the test. 5 A test technician for the Baltimore City Police Department performed the test and certified that the test produced a result of 0.18 BAC. When a test registers a BAC higher than .08, subsection (b)(3) of the Statute provides, in part, that the police officer shall: (i) Confiscate the person’s driver’s license issued by this State; (ii) Acting on behalf of the [Motor Vehicle] Administration, personally serve an order of suspension on the person; (iii) Issue a temporary license to drive; [and] (iv) Inform the person that the temporary license allows the person to continue driving for 45 days if the person is licensed under this title [Vehicle Laws— Drivers’ Licenses].

The Statute further requires the officer to inform the person of his or her right to challenge the license suspension at an administrative “show cause” hearing, and to inform the person of the sanctions that “shall be imposed in the event of failure to request a hearing, failure to attend a requested hearing, or upon an adverse finding by the hearing officer[.]” § 16-205.1(b)(3)(v)-(vi). Subsection (b)(3)(viii)(l)~(3) of the Statute also requires the police officer to send, within 72 hours, a sworn statement to the MVA, setting forth the certification of the officer’s “reasonable grounds to believe that the person had been driving or ⁸ attempting to drive a motor vehicle ... while under the influence of alcohol.” The officer must also state if “the person submitted to the test which indicated an alcohol concentration of 0.08 or more at the time of testing,” and that “[t]he person was fully advised of the administrative sanctions that shall be imposed, including the fact that a person who ... takes a test that indicates an alcohol concentration of 0.15 or more at the time of testing is ineligible for modification of a suspension or issuance of a restrictive license under subsection (n)(l) or (2) of this section.” 6 The DR-15A Form contained in the record reflects compliance with those statutory requirements. The show cause hearing Respondent exercised his right to request a hearing at the Office of Administrative Hearings, at which he had the opportunity to show cause why his license should not be suspended. He was represented by counsel at that hearing.

The ALJ received, without objection from Respondent, the MVA forms that were generated in this case: Form DR-15 “Advice of Rights”; Form DR-15A “Certification and Order of Suspension”; and Form MSP-33 “Notification to Defendant of Result of Test Alcohol Concentration.” The ALJ found, based on those documents, a prima facie case for suspension of Respondent’s license. 7 See § 16-205.1(f)(7)(ii) (providing that “[t]he sworn statement of the police officer and of the test technician or analyst shall be prima facie evidence of ... a test result indicating an alcohol concentration of 0.15 or more at the time of testing”); § 16-205.1(b)(l)(i)(2)(A) (providing for the sanc ⁹ tion of a 90-day suspension for a first-time offender with a BAC test result of 0.15 or greater). Respondent called Officer Phelps to testify solely about the test procedure. Officer Phelps testified that the test technician spent “ten or fifteen minutes at most” observing Respondent before administering the breath test. Following that testimony, and with Respondent’s agreement that the officer was no longer needed, the ALJ released the officer from the hearing.

Respondent then made a motion that no action be taken because, according to the officer’s testimony, the technician did not follow the procedure set forth in the Regulations of the Toxicologist requiring the tester, before administering the test, to observe for twenty minutes the person who is to be given the breathalyzer test. 8 The ALJ responded that “[t]he only thing I’ve got in the file is a certification from [the testing technician] that the test result was a .18” and “[t]here is no direct evidence that the individual ate or drank anything or did anything at all. He was brought in and he took the test and it was a .18 and it’s confirmed by the report and the test strip.” The ALJ thereafter denied the motion, explaining that § 16—205.1(f)(7)(i) sets forth the only issues to be determined at a hearing and a challenge to the test technician’s failure to follow the proper procedure does not appear among them. 9 ¹⁰ Respondent then argued that due, in part, to the lack of information in the record concerning the results of the field sobriety tests, Officer Phelps failed to state reasonable grounds to request Respondent to submit to the breath test. The ALJ rejected that argument, deciding that Officer Phelps had set forth in Form DR-15A reasonable grounds to believe that Respondent was driving under the influence of alcohol. The ALJ noted, in particular, the officer’s detection of a moderate odor of alcohol emanating from Respondent’s person, the officer’s administration of the field sobriety tests, and his subsequent arrest of Respondent.

The ALJ then found prima facie evidence, unrebutted by Respondent, that the test result showed an alcohol concentration of more than 0.15. Consequently, the ALJ ordered the suspension of Respondent’s license for 90 days. See § 16-205.1(b)(l)(i)(2). After discussing with Respondent the Ignition Interlock Program and receiving his agreement to participate in the program, the ALJ stayed the suspension for one year, conditioned upon Respondent’s participation in the program.

Judicial review in the Circuit Court In his petition for judicial review, Respondent raised two challenges to the decision of the ALJ: (1) whether there was substantial evidence in the record to support the “reasonable grounds” finding of the ALJ; and (2) whether the ALJ erred by refusing to entertain Respondent’s challenge to the validity ¹¹ of the breathalyzer test results. Following a hearing, the Circuit Court issued a written Opinion and Order reversing the decision of the ALJ on the ground that “there was not substantial evidence in the record to support the ALJ’s finding.” Before addressing the merits of Respondent’s contentions, the Circuit Court noted that “the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a search within the meaning of the Fourth Amendment,” and, therefore, “the conduct of those tests is constitutionally permissible when the officer has reasonable articulable suspicion that the driver is under the influence of alcohol.” Then, turning to the present case, the court opined: The only fact on which the officer relied in deciding to administer the field sobriety test was the “moderate” smell of alcohol emanating from [Respondent’s] person. Although this fact combined with other factors could provide reasonable articulable suspicion of criminal activity, i.e., driving under the influence of alcohol, this fact, standing alone, does not rise to that level. As with bloodshot eyes, a “moderate” smell of alcohol could result from a variety of non-criminal circumstances.

It is not illegal for someone age 21 or older to consume alcohol, and a “moderate” smell could emanate from consumption of only one alcoholic beverage. Further the mere presence in a restaurant or bar where an alcoholic beverage was spilled on one’s clothing, without any consumption of that beverage having occurred, could also result in a “moderate” smell of alcohol. In the instant case, the only facts found in the hearing record, on which this court can rely, [are] that [Respondent] was stopped for not wearing a seatbelt, and there was a “moderate” smell of alcohol emanating from his person. In using a totality of circumstances analysis, this court cannot find that these facts alone rise to the level of reasonable articulable suspicion warranting the administration of a field sobriety test.

As such, this court believes that there was ¹² not substantial evidence in the record to support the ALJ’s finding. Addressing Respondent’s claim that the breathalyzer results were invalid because the tester had not followed protocol, the court determined: “As this court has found that there was no reasonable articulable suspicion to support the officer’s decision to administer the field sobriety test, all actions thereafter are legally unsupportable.” The MVA argues, Respondent does not disagree, and we accept that, in so ruling, the court, without expressly characterizing it as such, applied the Fourth Amendment doctrines known as “the fruit of the poisonous tree” and “the exclusionary rule” to reason that the breathalyzer test results could not be used as a basis for the administrative suspension of Respondent’s driving license. Consequently, the court did not reach the merits of Respondent’s challenge related to the validity of the test results. The MVA filed a petition for a writ of certiorari, pursuant to Maryland Code (2009 Repl.

Vol.), § 12-305 of the Courts and Judicial Proceedings Article. We granted the petition, Motor Vehicle Admin. v. Shea, 406 Md. 744 , 962 A.2d 370 (2008), to address the following question: Does a police officer’s certification that a moderate odor of an alcoholic beverage was of sufficient strength to suspect that a motorist was driving while impaired by alcohol, along with subsequent field sobriety tests that led to the driver’s arrest, allow an administrative law judge to find reasonable grounds to request an alcohol content test under Transportation Article § 16-205.1(b)(2), without application of Fourth Amendment standards to evaluate the sufficiency of a police officer’s reasonable grounds?

II

The MVA requests that we reverse the judgment of the Circuit Court because there is substantial evidence supporting the ALJ’s decision that Officer Phelps had “reasonable grounds” to believe that Respondent drove while alcohol-impaired and, therefore, the officer had the authority to ¹³ request Respondent to submit to a breath test to determine his BAC. The MVA argues, in particular, that the Circuit Court “overstepped its role upon judicial review”; “reached its incorrect result by wrongly dissecting each factor stated by the officer and applying incorrect legal standards to each piece of evidence, rather than properly considering the circumstances as a whole”; and “erred by overturning the ALJ’s decision based upon analysis of a constitutional question [i.e., whether the police officer had reasonable suspicion, under the Fourth Amendment, to conduct the field sobriety tests,] that was neither preserved for [judicial] review nor applicable to the case at hand.” Respondent refutes the MVA’s arguments, contending that the Circuit Court correctly reversed the ALJ’s decision because there was insufficient evidence that Respondent was driving under the influence of or impaired by alcohol to constitute “reasonable grounds.” Respondent notes what he characterizes as the omission of “critical” information at the hearing before the ALJ. He points out that Officer Phelps did not describe any other physical characteristics, such as bloodshot eyes or slurred speech, suggesting that Respondent had consumed alcohol; Respondent did not admit to drinking any alcohol; and the MVA presented no evidence that Respondent was driving erratically. Moreover, Respondent contends that Officer Phelps’s indication on Form DR-15A that the odor of alcohol on Respondent’s breath was “moderate” is not proof that Respondent was driving while impaired by alcohol because, as the Circuit Court determined, the odor could have resulted from consumption of a single alcoholic beverage or from an alcoholic beverage spilled on Respondent’s clothing.

Respondent further asserts that the Circuit Court correctly determined that administration of the field sobriety tests was an illegal search under the Fourth Amendment because the only evidence suggesting the need for the tests was the odor of an alcoholic beverage emanating from his person, which is insufficient to establish “reasonable articulable suspicion” that Respondent had been driving under the influence of or impaired by alcohol. Respondent does not present further argu ¹⁴ ment on this point. We shall assume that he agrees with the Circuit Court’s ruling that all actions following the unlawfully conducted field sobriety tests—his arrest, the officer’s request that he submit to the breath test, the administration of the test, and the test results—were also unlawful under the Fourth Amendment as the tainted “fruits” of the field sobriety tests, and, consequently, evidence of those actions, including the test results, could not provide a lawful basis for the administrative sanction imposed.

III

Judicial review of administrative decision-making is constrained, as we recently reiterated in Delawter: A court’s role in reviewing an administrative agency adjudicatory decision is narrow; it 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