Owusu v. Motor Vehicle Admin.

Hotten, J. Petitioner, Bradford Owusu, ("Petitioner") seeks review of a decision of the Circuit Court for Montgomery County, which affirmed the administrative law judge who held that Petitioner was fully advised of the sanctions imposed upon him after refusing a chemical test. Petitioner presents a constitutional due process claim and a statutory "fail to advise" argument, as reflected in the following questions for review: 1. Is it a violation of due process and a failure to "fully advise" a driver of the administrative penalties that shall be imposed for refusing a breath test pursuant to [Md. Code, Transportation Article] § 16-205.1 when, after reading the [Motor Vehicle Administration's ("MVA") ] DR-15 advice form, a police officer's oral restatement of the penalties for failing and refusing a breath test omits the most severe mandatory penalty for refusal? 2. Is the DR-15 form's failure to advise suspected drunk drivers of the length of time the ignition interlock would be required in the event of a refusal - one year - a violation of due process and a failure to "fully advise" a driver of the administrative penalties that shall be imposed for refusing a breath test pursuant to [Md. Code, Transportation Article] § 16-205.1 ?

For reasons discussed infra , we answer both questions in the negative and shall affirm the judgment of the circuit court. Background The Maryland Implied Consent Statute, Md. Code, Transportation Article ("Transp.") § 16-205.1, 1 provides that a motorist, who operates a motor vehicle on the roadway of the state, has given consent to take a chemical test ("test") to determine drug or alcohol concentration, if detained on reasonable suspicion of intoxicated driving. Transp. § 16-205.1(a)(2). Upon the detention of drivers suspected of driving while intoxicated, officers must advise motorists of the test and provide information regarding consequences of a test refusal and a positive test result. 2 The MVA has developed a standard form ("the DR-15" or "Advice of Rights" form) that officers use to advise detained motorists of the sanctions that will be imposed as a result of test refusal or a positive test result.

The DR-15 includes all of the legislatively mandated advice that must be provided to motorists who are subject to chemical testing. 3 Legislative History The scope of an officer's required advice to motorists who are stopped on suspicion of intoxicated driving has expanded, as reflected by the legislative history of Transp. § 16-205.1. In 1993, the General Assembly added § 16-205.1(b)(2)(iii), which required that officers advise of "ineligibility for modification of a suspension or issuance of a restrictive license[ ]" when motorists refused to take a test. 1993 Laws of Md., ch. 407 (S.B. 18). Changes in 1998 expanded the MVA's Ignition Interlock Program ("Interlock Program"), which permits individuals who were stopped under suspicion of driving while intoxicated to continue driving when their vehicle is equipped with an ignition interlock device. The MVA provides these individuals with a restricted license, which may be granted despite test refusal. 1998 Laws of Md., ch. 526 (H.B. 928).

In 2006, the General Assembly added Transp. § 16-205.1(b)(2)(iv), which requires officers to advise motorists of "the administrative sanctions, including ineligibility for modification of a suspension or issuance of a restrictive license unless the person participates in the Ignition Interlock System Program." 2006 Laws of Md., ch. 461 (H.B. 525). Each of these respective changes to Transp. § 16-205.1 is reflected in the DR-15. The Commercial Driver's License Program The Maryland Commercial Driver's License Act is codified in Transportation Article §§ 16-801 - 16-820 ("Act"). A commercial motor vehicle is a vehicle that transports passengers, property, or hazardous materials and meets the size and weight parameters specified in Transp. § 16-803(c)(1).

The Act requires that the driver of a commercial motor vehicle possess a single driver's license and demonstrate the knowledge and skills necessary to drive a commercial vehicle. Transp. §§ 16-804, 16-807(b)(1). Under the Act, the MVA can disqualify the commercial driver's license ("CDL") of drivers who refuse to submit to an alcohol concentration test while driving a commercial vehicle. Transp. § 16-812(a)(3).

In accordance with Transp. § 16-205.1(f)(8)(vii), disqualification of a CDL is not subject to any modifications, nor may a restricted CDL be granted. Despite a CDL disqualification, the motorist may retain privileges to drive a non-commercial vehicle through participation in the Interlock Program. Transp. § 16-812(p). In 2005, then Governor Robert L. Ehrlich, Jr. signed Senate Bill 640, which established new and stricter sanctions for those holding CDLs.

The bill connected commercial driver's license holders' offenses in a non-commercial vehicle to their CDLs, and the change was reflected in Transp. § 16-205.1(b)(1)(iii). The statute reads, in relevant part: In addition to any applicable driver's license suspensions authorized under this section, in the case of a person operating a commercial motor vehicle or who holds a commercial instructional permit or a commercial driver's license who refuses to take a test : 1. Disqualify the person's commercial instructional permit or commercial driver's license for a period of 1 year for a first offense, 3 years for a first offense which occurs while transporting hazardous materials required to be placarded, and disqualify for life if the person's commercial instructional permit or commercial driver's license has been previously disqualified for at least 1 year .... (Italics added for emphasis).

The DR-15 also reflected these changes: If you hold a commercial driver's license (CDL) and were driving a non-commercial motor vehicle when you were stopped , and you refuse to submit to a test, your CDL or privilege shall be disqualified for 1 year for a 1st offense or for life if your CDL or privilege has been previously disqualified for at least 1 year under Maryland Transportation Article § 16-812 (a) or (b), a federal law, or any other state's law. (Bold in original) (italics added for emphasis). These changes regarding CDL holders were reviewed in Hill v. Motor Vehicle Admin ., 415 Md. 231 , 999 A.2d 1019 (2010), where we outlined the options available to Mr. Hill, holder of a CDL, after an officer stopped him in his non-commercial vehicle on suspicion of intoxicated driving. Id. at 236 , 999 A.2d at 1022 .

First, had he "passed" the test (showing an alcohol concentration of less than 0.08 percent), none of these sanctions would have applied. Second, had he failed the test, by any measure, he would have been subject to a suspension, with the possibility of receiving a restricted license through enrollment in the Interlock Program; the length of suspension and the possibility of further modifications would depend on the precise concentration of alcohol in his system. Third, had he refused to take the test, he would have been subject to a still longer suspension than would have been imposed in the event of any failure, but he still would have left open the possibility of receiving a restricted license through enrollment in the Interlock Program. Under any scenario where Hill failed or refused to take the test, however, he would have also been subject to a one-year disqualification of his CDL .

This disqualification is in addition to any suspension of non-commercial driving privileges. 415 Md. at 241 , 999 A.2d at 1024-25 (citing Transp. §§ 16-205.1 (f)(8)(ii)(1), (f)(8)(vii) ) (italics added for emphasis). Petitioner's Traffic Stop On April 15, 2017, officers of the Montgomery County Police Department stopped Petitioner after he was observed driving erratically. Upon approaching the vehicle, officers detected a strong odor of alcohol on Petitioner's breath and observed bloodshot watery eyes as well as slurred speech. Suspecting that Petitioner was driving under the influence of alcohol, an officer instructed Petitioner to perform several field sobriety tests.

Petitioner was unable to complete the tests in a satisfactory manner. He was detained for driving under the influence of alcohol. Officers transported Petitioner to the Montgomery County Police Department, where he was provided the DR-15 Advice of Rights form. The officer then instructed Petitioner to follow along as he read the form aloud.

The DR-15 reads, in pertinent part, as follows: You may refuse to submit to the test(s), unless you were in a motor vehicle accident resulting in the death of or life-threatening injury to another person[.] Suspension of Your Maryland Driver's License or Driving Privilege: If you refuse to submit to the test , or if you submit to the test and the result indicates an alcohol concentration of 0.08 or more at the time of testing, your Maryland driver's license shall be confiscated , you will be issued an Order of Suspension and, if eligible, a temporary license valid for 45 days. The following periods of suspension shall be imposed against your license or privilege to drive in Maryland: If you refuse to submit to a test, your suspension shall be 270 days for a 1st offense and 2 years for a 2nd or subsequent offense. If your test result is an alcohol concentration of at least 0.08 but less than 0.15, your suspension shall be 180 days. If the offense involves a motor vehicle accident that resulted in the death of another person, your suspension shall be 6 months for a 1st offense and 1 year for a 2nd or subsequent offense.

If your test result is an alcohol concentration of 0.08 but less than 0.15, your suspension may be modified or a restricted license may be issued at a hearing[.] If your test result is an alcohol concentration of 0.15 or more, your suspension shall be 180 days for a 1st offense and 270 days for a 2nd or subsequent offense. If the offense involves a motor vehicle accident that resulted in the death of another person, your suspension shall be 1 year for a 1st offense and for a 2nd or subsequent offense your license shall be revoked. If you refuse a test, or take a test with a result of 0.15 or more, you shall be ineligible for modification of your suspension or the issuance of a restricted license, unless you participate in the Ignition Interlock System Program under Maryland Transportation Article § 16-404.1. If you hold a commercial driver's license (CDL) and were driving a non-commercial motor vehicle when you were stopped, and you refuse to submit to a test, your CDL or privilege shall be disqualified for 1 year for a 1st offense or for life if your CDL or privilege has been previously disqualified for at least 1 year under Maryland Transportation Article § 16-812 (a) or (b), a federal law, or any other state's law. * * * Instead of requesting a hearing or upon the suspension or revocation of your driver's license, you may elect to participate in the Ignition Interlock System Program if the following conditions are met: 1) your driver's license is not currently suspended, revoked, canceled, or refused, and 2) within 30 days of the date of this Order of Suspension you a) elect in writing to participate in the Ignition Interlock System Program for 1 year if your test resulted in an alcohol concentration of 0.15 or more or you refused the test or 6 months if your test resulted in an alcohol concentration of at least 0.08 but less than 0.15; and b) surrender a valid Maryland driver's license or sign a statement certifying that the license is no longer in your possession ....

(Bold in original) (italics and underling added for emphasis). A body camera used throughout Petitioner's stop and arrest reveals that officers attempted to clarify whether Petitioner held a CDL. During their inquiry and after reading the DR-15, the officers orally asserted the repercussions of refusing to take the test: Officer 1: Basically what I read you is, if you refuse to submit to the test, it's 270 days for your license, but you have a CDL Class B (holding license). Officer 2: You drive for Metro?

Officer 1: Who do you drive for? The CDL that you have. Officer 2: You drive a Metro bus? Officer 1: It says trains, coach, or bus, you drive a bus?

Officer 2: I saw your Metro ID in your wallet, you drive for Metro? You realize if you don't take the test, your driver's license is going to be suspended for 270 days, if you don't take this test. And if you take it, and it's a high blow, you blow anything 0.08 or higher, you get suspended for 180 days. So, if you take the test and you don't do well, it's a 180 day suspension.

If you don't take the test, your license gets suspended for 270 days. And because I assume that you drive a bus for Metro based on your CDL and the ID you have in your wallet, that means this is going to affect your work. So this can affect your work for 180 days or it can affect your work for 270 days. It's completely up to you.

Would you like to take the test or not? Petitioner did not respond. The officers did not repeat the advisement that Petitioner's CDL would be disqualified for a year if he opted to refuse the test. After repeatedly asking Petitioner whether he wanted to take the test and based on his lacking responsiveness, the officers treated the lack of response as a refusal.

As a result, Petitioner was issued an Order of Suspension. Petitioner filed a timely request for an administrative hearing, which was held on July 14, 2017. Petitioner testified that the officers' oral assertions after the DR-15 led him to believe that he would be able to get his license and CDL back after 270 days. Petitioner testified that, had he known his CDL would be disqualified for a full year, he would have opted to take the test.

Petitioner asserted that the officers' oral advisements and the DR-15 were false, misleading and violated his due process rights, as well as his right to "full advisement" of administrative sanctions under Transp. § 16-205.1. The Administrative Law Judge rejected Petitioner's arguments, and held that the DR-15 provided sufficient advice and that the officers' oral advisements were factually correct. On January 10, 2018, following a hearing, the Circuit Court for Montgomery County affirmed the decision of the Administrative Law Judge. Following the circuit court decision, Petitioner noted a timely appeal and we granted certiorari.

STANDARD OF REVIEW This Court has stated that "[w]e review an administrative agency's decision under the same statutory standards as the [c]ircuit [c]ourt," and evaluate the decision of the agency rather than the circuit court. Hill, 415 Md. at 239 , 999 A.2d at 1023 (internal quotations and citations omitted); Gigeous v. Eastern Correctional Institution , 363 Md. 481 , 495-96, 769 A.2d 912 , 921 (2001). We, however, may always determine "if the administrative decision is premised upon an erroneous conclusion of law." Hill, 415 Md. at 239 , 999 A.2d at 1023 (citations omitted). "Therefore, ordinarily the court reviewing a final decision of an administrative agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision." Gigeous , 363 Md. at 496 , 769 A.2d at 922 (internal citations omitted).

Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 497 , 769 A.2d at 922 (internal citations omitted). Additionally, purely legal questions are reviewed de novo with " 'considerable weight' to the agency's interpretation and application of the statute which the agency administers." People's Ins. Counsel Div. v. State Farm Fire & Cas. Ins.

Co. , 214 Md. App. 438 , 449, 76 A.3d 517 , 524 (2013) (internal citations omitted). DISCUSSION A. The officers' oral advisements after a complete reading of the DR-15 did not pose a statutory or due process violation. Petitioner contends that his statutory right to be fully advised of sanctions under Transp. § 16-205.1, and his due process rights under both the Fourteenth Amendment of the U.S. Constitution and Article 24 of the Maryland Declaration of Rights, were violated because he was given false or misleading advice regarding the consequences of failing or refusing a breath test. Full advisement under Transp. § 16-205.1 Transp. § 16-205.1(b)(1) specifies that a detaining officer "shall advise" a detained person of the resulting sanctions from refusing a test or blowing at or above a specified alcohol concentration.

See also Transp. § 16-205.1(f)(7) (cross-referencing subsection (b)(2) with regards to "full advisement"). In Motor Vehicle Admin. v. Chamberlain , 326 Md. 306 , 604 A.2d 919 (1992), we held that a detaining officer need only advise a detained motorist of the administrative sanctions that are enumerated in Transp. § 16-205.1. In Chamberlain , Mr. Chamberlain was stopped for speeding and on suspicion of driving while intoxicated. Id. at 309 , 604 A.2d at 920 .

After conducting several field sobriety tests, the officer placed Mr. Chamberlain under arrest. Id . The officer read the DR-15 in full, but did not notify Mr. Chamberlain that if he met certain conditions, the suspension could be modified or a restrictive license could be issued, even if Mr. Chamberlain failed the test. Id. at 310 , 604 A.2d at 921 .

Mr. Chamberlain refused the test, later claiming that he was not fully advised of the