Motor Vehicle Administration v. Weller

CATHELL, J. This case arises out of an Administrative Law Judge’s decision, made on behalf of the Motor Vehicle Administration, resulting in the one-year suspension of the Maryland driving privileges of Steven W. Weller, respondent, following a driving incident where respondent refused to submit to a chemical breath test. On May 16, 2004, a police officer stopped the car respondent was driving after seeing the car cross over a set of double yellow lines on the road. Respondent failed the field ¹²⁰ sobriety tests administered by the police officer and refused to take a chemical breath test to determine the amount of his alcohol consumption. Respondent was issued an Order of Suspension, pursuant to Md.Code (1977, 2002 Repl.Vol., 2005 Supp.), § 16-205.1 of the Transportation Article, 1 for refusing to take the chemical breath test.

Respondent contested this suspension at an administrative show cause hearing conducted by an Administrative Law Judge (ALJ) of the Maryland Office of Administrative Hearings (OAH). The Motor Vehicle Administration (hereinafter, the “Administration” or “Agency”), petitioner, had delegated final administrative decision-making authority in such cases to the OAH, subject to § 16-205.1. Following the hearing, the ALJ found that respondent had violated § 16-205.1 and suspended respondent’s Maryland driving privileges for one year. Respondent sought judicial review of the Agency’s decision in the Circuit Court for Carroll County.

The Circuit Court reversed the Agency’s decision and vacated the one-year suspension of respondent’s driving privileges. The Administration then filed a Petition for Writ of Certiorari to this Court and on June 9, 2005, this Court granted certiorari. Motor Vehicle Administration v. Weller, 387 Md. ¹²¹ 462, 875 A.2d 767 (2005). In its brief, the Administration presents two questions for our review: 1. “Did the circuit court erroneously rule that preliminary breath test results are inadmissible in an administrative hearing under Transportation Article § 16-205.1, when Transportation Article § 16-205.2[ 2 ] prohibits their use as evidence only in a ‘court action’ or ‘civil action’?” 2. “Did the circuit court improperly substitute its judgment for that of the agency when it reversed and vacated the agency’s decision because it found the ALJ did not properly consider Weller’s employment as an insurance adjuster and the fact that it had been eight years since his prior test refusal?” We answer the Administration’s questions in the affirmative and reverse the judgment of the Circuit Court for Carroll ¹²² County.

Addressing the first question, we hold that the trial court erred in considering the issue of the admissibility of the preliminary breath test result before the agency. No objection to its admissibility was made, accordingly that issue was not preserved. We shall discuss this matter further, infra. I. Facts The evidence before the ALJ reflected that early on the morning of May 16, 2004, Officer Jeffrey Shuster of the Hampstead Police observed a white Chevrolet, driven by respondent, cross over a set of double yellow lines.

Officer Shuster stopped the vehicle and identified the driver from his Maryland license as Steven W. Weller, the respondent. Upon speaking with the respondent, Officer Shuster detected a strong odor of an alcoholic beverage coming from respondent’s breath. The officer also observed that respondent had bloodshot and watery eyes. During the stop, respondent admitted to the officer that he had consumed six beers.

The officer conducted field sobriety tests and noted that respondent performed poorly on, and thus failed, the field sobriety tests administered during the stop. When the officer gave respondent a PBT, the result suggested he had a blood alcohol concentration of 0.16. As a result of this • information, the officer arrested the respondent for driving under the influence of alcohol pursuant to § 21-902 of the Transportation Article. The officer then requested that the respondent submit to the chemical breath test authorized under § 16-205.1 3 to determine his blood alcohol concentration.

Prior to the respondent’s decision, the officer advised him of the administrative sanctions that he would face if he refused to take the breath test for a first or subsequent time. Respondent refused to take the test and ¹²³ acknowledged his refusal in writing by signing a DR-15 (“Advice of Rights”) form. 4 ¹²⁵ Respondent contested this suspension at an administrative show cause hearing conducted by an Administrative Law Judge (ALJ). Pursuant to § 16-205.1 of the Transportation Article, Officer Shuster then issued respondent an Order of Suspension. Pursuant to his rights under § 16-205.1(b)(3)(v)(l), 5 respondent requested an administrative “hearing to show cause why [respondent’s] driver’s license should not be suspended concerning the refusal to take the [chemical breath] test.” On June 28, 2004, a hearing was conducted in front of an ALJ at the Office of Administrative Hearings.

Respondent eight years earlier had refused such a test and was therefore facing a possible one-year suspension pursuant to § 16-205.1 (b)(l)(i)(2)(B). The Administration presented several documents at the hearing which were admitted into evidence by the ALJ, including a DR-15A “Officer Certification and Order of Suspension” and the respondent-signed DR-15 “Advice of Rights” form acknowledging respondent’s refusal to take the chemical breath test. Respondent did not object to the introduction into evidence of any of the Administration’s documents, including the DR-15 officer certification that contained the respondent’s PBT result. Respondent testified that he was single and lived alone.

Respondent also testified that he was employed by an insurance company as a material damage adjuster and had worked ¹²⁶ in the insurance adjustment business for twenty-three years. His job consisted of inspecting vehicles for collision damage and, thus, required him to spend a large amount of his time on the road, driving to and from inspections. Respondent testified that he was provided with a company car for these purposes, but that he had a private vehicle that he used for non-work related driving. Finally, respondent testified that he had inquired of his employer about the possibility of an ignition interlock being installed in the company car and was told that it was not possible because it was a leased vehicle.

At the conclusion of the hearing, respondent asked the ALJ to exercise her discretion and not suspend his driver’s license for the full one-year period mandated by § 16-205.1(b)(l)(i)(2)(B) for repeat offenders. Respondent asked that the ALJ grant him the opportunity to use his company vehicle without restriction, because the ignition interlock could not be installed on that vehicle, and that he be allowed to use his personal vehicle with an ignition interlock. The ALJ rejected respondent’s proposed disposition and held as follows: “I’ve considered the evidence and testimony presented in the case, and I find by a preponderance of the evidence that the officer who stopped [respondent] had reasonable grounds to believe that he was driving a motor vehicle while under the influence of or impaired by alcohol because on May [16], 2004, [respondent] was observed driving across [a] double yellow line. The officer noted a strong odor of alcohol.

A preliminary breath test of .16. Licensee said he had six beers. Blood shot and watery eyes. The officer fully advised [respondent] of the administrative sanctions, asked that he take a breath test, and he refused the test, and [that refusal] is a violation of Section 16-205.1.

The record indicates that there was a prior refusal on July 12, 1996, followed by a 120-day suspension. Therefore, this is a second offense with a possible one-year suspension. In deciding what to do, I consider a number of different factors. I have considered the prior refusal, which put [respondent] in — resulted in some alcohol treatment.

I’ve ¹²⁷ considered that he’s employed as an insurance adjuster (INAUDIBLE). He was evaluated by Westminster Recovery Center on June 25, 2004, (INAUDIBLE) 26 weeks of alcohol treatment. There are a number of extremely serious problems in [respondent’s] case. I have considered the request for the interlock device but the problems are this.

The driving was dangerous. [May] 16, 2004, it indicates that he drove across a double yellow line (INAUDIBLE). The level of alcohol as indicated by the evidence, and you can consider preliminary breath test result[s] in administrative proceedings, was .16, double the legal limit. Also, according to the Officer’s Certification [respondent] told the officer he had six beers. This is after a prior alcohol offense that resulted in a suspension and alcohol treatment. [Respondent] has recently been evaluated by Westminster Recovery Center.

I have reviewed the report, which is fairly detailed. This program — the program representative indicates that he believes that [respondent] was honest in all the information he gave me but this report doesn’t indicate a prior alcohol offense or prior alcohol treatment. It is of concern to me that (INAUDIBLE) [respondent] may not have been completely honest with (INAUDIBLE). My decision in weighing all these different factors is that I am going to suspend your license for one year.” The Administration then suspended respondent’s privilege to drive in Maryland for one-year as provided for in § 16-205.1(b)(l)(i)(2)(B).

Respondent sought judicial review of the Administration’s decision in the Circuit Court for Carroll County and that court held a hearing on January 14, 2005. On February 16, 2005, the Circuit Court issued an Order reversing the decision of the Administration and vacating the one-year suspension of respondent’s Maryland driving privileges. The Circuit Court held that the Administration via the ALJ: “did not give proper consideration to [respondent’s] employment as an insurance adjuster for the past twenty-three years, to the fact that his prior alcohol offense was eight years ago, or that ignition interlock was an available option ¹²⁸ on his personal vehicle. What is most significant, however, is that the Administrative Law Judge considered the result of [respondent’s] preliminary breath test which is prohibited under MD.

Transp. Code Ann. § 16.205.2(c) ... “Therefore, after a thorough review of the record in this matter, the [Circuit] Court finds that the decision of the Administrative Law Judge is not supported by competent, material and substantial evidence and is, therefore, arbitrary and capricious.” II. Consideration of unpreserved issues. As a preliminary issue, we first address the Administration’s argument in its brief that respondent’s failure to object to the introduction of his preliminary breath test result at the administrative hearing constitutes a waiver of his right to argue the admissibility of the evidence.

See Cicala v. Disability Rev. Bd. for Prince George’s Co., 288 Md. 254, 263 , 418 A.2d 205, 210-11 (1980). We stated in Cicala : “Because the issue of the alleged error was not raised during the administrative proceeding, it was not properly raised in the judicial review proceeding, and therefore is not properly before us.” Id. at 263 , 418 A.2d at 210-11 . We declined to address that issue. More recently, Judge Raker, writing for the Court, opined in Schwartz v. Maryland Department of Natural Resources, 385 Md. 534, 554-56 , 870 A.2d 168, 180-81 (2005): “The difficult problem presented in the case sub judice is that the Circuit Court for Queen Anne’s County ruled on an issue that was never raised before the agency____ “Because, even if the exemption exists, we agree with the agency decision that appellants are not entitled to the exemption as a matter of fact, we will not in this case decide ¹²⁹ whether the Circuit Court was correct in its construction of the statute.” (Footnote omitted.) In our decision in Schwartz , although we declined to reach the exemption issue, we, in a footnote as dicta made a brief comment: “This case should provide fair notice to the Department of Natural Resources, boat dealers, boat builders, and potential boat purchasers that the exemption at issue may not exist under the statute.

Inasmuch as the Circuit Court ... may well have been correct in its interpretation, DNR might consider proposing to the Legislature language clarifying or amending the statute to provide explicitly for that which is reflected in Form 110B.” Id. at 556 n. 4, 870 A.2d at 181 n. 4. Prior to our Schwartz case there was a recent line of our cases that consistently held that if issues were not raised during the administrative proceeding they could not later be raised during judicial review. In Delmarva Power & Light Company v. Public Service Commission, 370 Md. 1, 32 , 803 A.2d 460, 478 (2002), Judge Wilner for the Court, stated: “The cases in which a waiver has been found based on non-preservation have been in the nature of contested cases, as to which judicial review ... is limited. As we noted in Bulluck, [v. Pelham Wood Apartments], 283 Md. [505] at 518-19, 390 A.2d [1119] at 1127 [(1978)], quoting from Unemployment Compensation Comm’n v. Aragon, 329 U.S. 143, 155 , 67 S.Ct. 245 , 91 L.Ed. 136 (1946), ‘[a] reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.’ We do not allow issues to be raised for the first time in actions for judicial review of administrative agency orders entered in contested cases because to do so would allow the court to resolve matters ab initio that have been committed to the jurisdiction and expertise of the agency.” ¹³⁰ In Brodie v. Motor Vehicle Administration, 367 Md. 1, 3-4 , 785 A.2d 747, 748-49 (2001), with Judge Eldridge writing, the Court stated: “Brodie filed in this Court a petition for a writ of certiorari which presented the single question of whether the MVA was authorized to revoke a driver’s license when ‘the petitioner’s license and privilege to drive were already revoked.’ ...

Believing that this was an important legal issue ..., we granted the petition. We shall not, however, be able to reach the issue. “Since Brodie’s entire challenge to the administrative decision was based on an issue not raised before the agency, the Circuit Court should have affirmed the administrative decision without reaching the issue.” (Citations omitted.) Judge Harrell noted an exception to the general rule as to preservation issues in respect to judicial review of administrative agency actions in Engineering Management Services, Inc. v. Maryland State Highway Administration, 375 Md. 211, 235 , 825 A.2d 966, 980 (2003), when he stated for the Court: “The SHA argues, and the Court of Special Appeals agreed, that the issue of the MSBCA’s failure to promulgate rules was not preserved for review as EMS failed to raise the issue during the proceedings before the MSBCA. Judicial review of administrative decisions generally is limited to the issues raised before the agency. We reach this issue, however, not because EMS raised it on appeal, but rather because it is an integral, and thus unavoidable, component of our determination of the properly raised issue of whether the MSBCA’s grant of summary disposition was appropriate in this case.” (Citations omitted.) Because of the nature of the Circuit Court’s opinion in this case, where he did not separate the issues he was addressing, a resolution of the un-preserved issue by this Court is necessary. ¹³¹ Analysis The Circuit Court, in respect to the second issue presented by the Petitioner, opined: “It was apparent from the transcript of the June 28, 2004, hearing that the ALJ did not give proper consideration to Petitioner’s employment as an insurance adjuster for the past twenty-three years, to the fact that his prior alcohol offense was eight years ago, or that ignition interlock was an available option on his personal vehicle.

What is most significant, however, is that the Administrative Law Judge considered the result of Petitioner’s preliminary breath test which is prohibited.... “Therefore, after a thorough review of the record in this matter, the Court finds that the decision of the Administrative Law Judge is not supported by competent, material and substantial evidence and is, therefore, arbitrary and capricious.” Part of the evidence before the Administrative Law Judge and before the Circuit Court was the results of the preliminary breath test. While normally we do not, and circuit courts should not, consider issues not preserved, in this case the Circuit Court specifically based its opinion on the lack of substantial evidence only after specifically ruling that some of the material evidence presented should not have been admitted before the agency. At the least, it is difficult to separate the ruling of the trial judge, from its subsequent finding that the evidence was not sufficiently substantial. Under these particular circumstances, especially the language of the Circuit Court’s opinion, it appears that the evidentiary issue was integral to the trial court’s ruling, and, thus, it may be a necessary component integral to our holding arising out of that particular opinion.

We shall thus address that ruling. It was wrong. We additionally note that addressing this issue does not work to the disadvantage of the party raising the issue before us, as the decision of the Circuit Court will be reversed and the determination by the agency upheld. Neither does it ¹³² prejudice the Respondent in that he was not entitled to raise the issue in the first instance before the Circuit Court.

III

Discussion As we previously stated in Motor Vehicle Administration v. Jones, 380 Md. 164, 172-73 , 844 A.2d 388, 393 (2004): “Section 16-205.1 of the Transportation Article, commonly known as Maryland’s Implied Consent Law, provides the statutory structure for the suspension of a suspected drunk motorist’s driving privileges where that driver refuses to submit to a chemical breath test for intoxication.[ 6 ] Section 16-205.1(a)(2) states: ‘(2) 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, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title.’ Pursuant to § 16-205.1(b)(l) of the Transportation Article, an officer detaining a suspected drunk driver must advise the suspect of certain rights enumerated in that subsection and may not compel that suspect to take a chemical breath test. Section 16-205.1(b) further discusses the exact procedures an officer must follow if the officer has reasonable grounds to suspect the driver is under the influence of alcohol or drugs, including detaining the suspect, requesting ¹³³ a chemical breath and/or blood test and advising the suspect of administrative sanctions for refusal to take a requested test. If, as occurred in the case sub judice, the suspect refuses to take the chemical breath test after being properly advised, § 16-205.1(b)(3) directs the officer to confiscate the suspect’s driver’s license, serve an order of suspension, issue a temporary license and inform the suspect of the suspect’s right to a hearing and of the possible administrative sanctions.” (Footnote omitted.) Section 16-205.2 of the Transportation Article, titled “Preliminary breath test,” governs when a PBT can be administered and, as applicable to the case sub judice, how the results of a PBT are to be used. Section 16-205.2(c) is particularly relevant, providing: “(c) Use of results of test. — The results of the preliminary breath test shall be used as a guide for the police officer in deciding whether an arrest should be made and may not be used, as evidence by the State in any court action.

The results of the preliminary breath test may be used as evidence by a defendant in a court action. The taking of or refusal to submit to a preliminary breath test is not admissible in evidence in any court action. Any evidence pertaining to a preliminary breath test may not be used in a civil action.” (Emphasis added.) The first issue in the case sub judice is whether a PBT is admissible in an administrative hearing in light of the restriction contained in § 16-205.2(c). A. An Administrative Hearing is Neither a “Court Action” Nor a “Civil Action.” The central question is whether an administrative hearing is a “court action” or a “civil action.” The Circuit Court found that § 16-205.2(c) applied to the administrative hearing and, therefore, the ALJ should not have considered the results of the respondent’s PBT.

This was an erroneous interpretation of § 16-205.2(e). ¹³⁴ We look to the well-settled canons of statutory interpretation in aid of reaching our holding. As we stated in Jones, 380 Md. at 175 , 844 A.2d at 394 -95: “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.’ Holbrook v. State, 364 Md. 354, 364 , 772 A.2d 1240, 1245-46 (2001) (quoting In re Anthony R, 362 Md. 51, 57 , 763 A.2d 136, 139 (2000) (internal citation omitted)). First and foremost, a court should thoroughly examine the plain language of the statute when attempting to ascertain the Legislature’s intentions. Holbrook, 364 Md. at 364 , 772 A.2d at 1246 ; In re Anthony R, 362 Md. at 57 , 763 A.2d at 139 .

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.’ Pak v. Hoang, 378 Md. 315, 323 , 835 A.2d 1185, 1189 (2003) (quoting Moore v. Miley, 372 Md. 663, 677, 814 A.2d 557, 566 (2003) (internal citation omitted)). This Court, however, will not add or delete words from the statute. Gillespie v. State, 370 Md. 219, 222 , 804 A.2d 426, 427 (2002). We will look ‘beyond the statute’s plain language in discerning the legislative intent’ only where the statutory language is ambiguous.

Comptroller of the Treasury v. Clyde’s of Chevy Chase, Inc., 377 Md. 471, 483 , 833 A.2d 1014, 1021 (2003).” The Administration argues that the plain language of § 16-205.2(c) is clear and does not prohibit a PBT from being admitted into evidence at a § 16-205.1 administrative hearing. Section 16-205.2(c) only prohibits a PBT from being admitted into evidence in three instances: (1) “[t]he results of the [PBT] ... may not be used as evidence by the State in any court action,” (2) “[t]he taking of or refusal to submit to a[PBT] is not admissible in evidence in any court action,” and (3) “[a]ny evidence pertaining to a preliminary breath test may not be used in a civil action.” (Emphasis added). It is the Administration’s contention that a § 16-205.1 administrative hearing is not a court action. The Administration argues that § 1-101 (c) of the Courts & Judicial Proceedings ¹³⁵ Article defines a court as “the Court of Appeals, Court of Special Appeals, circuit court, and District Court of Maryland, or any of them, unless the context clearly requires a contrary meaning.

It does not include an orphans’ court, or the Maryland Tax Court.” 7 As the Office of Administrative Hearings is not included in this definition, it cannot, according to petitioner, be considered a court in which a “court action” could take place. Respondent argues that, while § l-101(c) of the Courts & Judicial Proceedings Article defines what a court is, it does not specifically define what a “court action” is and therefore, an administrative hearing before an ALJ can be a “court action.” We disagree. Examining the plain language of § 16-205.2(c) we find the term “court action,” as used, to be clear and unambiguous. A court is defined as “[a] governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice.” Black’s Law Dictionary 378 (8th ed.2004).

The General Assembly specifically defines Maryland courts in § l-101(c) of the Courts & Judicial Proceedings Article, as stated above. 8 An action is defined as “[a] civil or criminal judicial proceeding.” Black’s Law Dictionary 31 (8th ed.2004). Thus, a “court action” is a proceeding in the Court of Appeals, the Court of Special Appeals, Circuit Court for a county or Baltimore City, District Court of Maryland or an Orphans’ Court. An administrative hearing before an ALJ, pursuant to § 16-205.1, or any hearing before an administrative agency does not fall within this field. Such a hearing, pursuant to § 16-205.1, does not take place in one of Maryland’s enumerated “courts.” It is an administrative proceeding and not a “court action.” ¹³⁶ This interpretation is supported in our case law.

In Janes v. State, 350 Md. 284, 302 , 711 A.2d 1319, 1328 (1998), we found that collateral estoppel does not operate in respect to the relationship between criminal prosecutions for drunken driving and driver’s license suspension hearings. This is because “ § 16-205.1-type proceedings do not sufficiently resemble court proceedings, even though the agency acts in a quasi-judicial capacity, to serve as the basis of a constitutional estoppel. They are ordinarily informal in nature, intended to provide minimally necessary due process before temporarily suspending an important privilege____” Id. (emphasis added).

We also stated that “the General Assembly has made clear through the enactment of § 16-205.1(0(1) that criminal proceedings under § 21-902 [also of the Transportation Article] and administrative proceedings under § 16-205.1 are independent of one another and that findings made in one do not affect the other.” Id. at 304, 711 A.2d at 1328 ; see also Motor Vehicle Admin, v. Richards, 356 Md. 356, 377 , 739 A.2d 58, 70 (1999) (finding that “[a]ffording licensees the opportunity to invoke the exclusionary rule of the Fourth Amendment in license suspension proceedings would not only interfere with the informal and summary nature of those proceedings but also alter their purposefully limited scope, as prescribed under § 16-205.1(f)(7)”). The Court of Special Appeals addressed when evidence of a PBT was not admissible in Harmon v. State, 147 Md.App. 452 , 809 A.2d 696 (2002), where the court considered whether a trial court committed error by admitting into a probation violation evidentiary hearing, evidence of a PBT that was performed on the defendant during his participation in a work-release program. The Court of Special Appeals found the language of § 16-205.2(c) to be “exceedingly clear.” Id. at 468, 809 A.2d at 705 . In finding that the trial court committed error by admitting evidence of the PBT, the court held that: “Section 16-205.2 pronounces that a PBT ‘may not be used as evidence by the State in any court action.’ (Emphasis added).

No exceptions are embodied in the text, nor is the mandatory language of the text limited to transportation ¹³⁷ actions. Indeed, the only limitation is that the action must be a court action, which the hearing below surely was. Regardless of its precise nature, it was an evidentiary court proceeding with significant consequences to appellant.” Id. (emphasis added).

The evidentiary hearing in Harmon took place in the Circuit Court. It arose out of and was part of a criminal court proceeding. Thus, it was a court action. The hearing in the case