Sullivan v. State

ADKINS, Judge. After a bench trial, the Circuit Court for Montgomery County found appellant Christopher Carl Sullivan guilty of driving a motor vehicle on a highway on a revoked “license or privilege to drive,” in violation of Md.Code (1976, 2006 Repl. Vol., 2007 Cum.Supp.), section 16-303(d) of the Transportation Article (Trans.). 1 He challenges that conviction, raising two issues for our review, the first of which presents a question of first impression in Maryland: I. Did the trial court err in rejecting Sullivan’s argument that he could not be convicted of driving on a revoked license when he has never been issued a driver’s license?

II

Did the trial court err in admitting a copy of Sullivan’s MVA record in the place of the original when the copy is without an appropriate foundation and compliance with the Maryland Rules? Concluding that Sullivan could not be convicted of driving on a revoked license when he has never been issued a driver’s license, we reverse his conviction. FACTS AND LEGAL PROCEEDINGS At approximately 7:15 p.m. on August 31, 2006, Montgomery County patrol officer Darrell Furdock stopped Sullivan while he was driving near the intersection of Fisher Avenue and Milford Mill Road. Furdock noted the odor of alcohol.

Sgt. Furdock asked Sullivan, a Maryland resident, for his driver’s license, but appellant could not produce a license. He ticketed ³⁸ Sullivan for, inter alia, driving on a revoked “license or privilege to drive” in violation of section 16-303. At trial, Sullivan testified that he had never been issued a Maryland driver’s license.

Sullivan moved for acquittal on the ground that he could not be convicted of driving on a revoked license because he never had a license, much less had one revoked. In his view, the appropriate charge would have been driving without a license under section 16-101(a), which carries a lesser penalty. The trial court denied the motion, reasoning that one could have a privilege to drive even without having a license. The court said: “[T]he right to drive, it’s a privilege to drive, it’s not a card you carry in your pocket[.]” When defense counsel disagreed, the following colloquy occurred: The Court: Well, there’s — how does one acquire a privilege to drive in the State of Maryland? [Defense Counsel]: Make an application.

The Court: I know how you get a license, you make an application, but how do you get a privilege? There’s a distinction between the two. [Defense Counsel]: Sure, you make an application to get a license and they grant you the privilege by giving you that license. The Court: See I think, in a lot of these statutes and in a lot of the cases they distinguish between the privilege to drive and the license to drive____and it seems to me ..., because the way they deal with it is that the privilege is sort of an automatic thing, as opposed to a license which you have to apply for until such time that, that privilege gets taken away. The trial court then observed that MVA records “show[ed] that based upon accumulation of points, the State of Maryland has revoked his privilege[.]” This record shows that, as of March 20, 2007, Sullivan had 15 “total current points,” and lists Sullivan’s “license status” as “revoked & suspended.” It identifies Sullivan’s “OLN” as S-415-115-108-830, and lists various offenses and administrative actions beginning March ³⁹ 30, 1997.

An entry for September 13, 2003 reads: “DELETED FROM RECORD POINT SYSTEM REVOCATION.” Other entries show that Sullivan’s license was “revoked” on October 3, 2003 and “suspended” on July 8, 2005. 2 Rejecting Sullivan’s argument that, having never acquired a license, he could not be convicted under section 16-303(d), the trial court found Sullivan “guilty of driving on revoked privilege.” Sullivan noted this timely appeal. DISCUSSION Statutory Construction Of Vehicle Laws Established principles of statutory construction govern our review. To discern the legislature’s intent in enacting a penal statute such as this traffic law, “we look first to the language of the statute,” which we “read in light of the full context of the statute[.]” Jones v. State, 357 Md. 141, 159 , 742 A.2d 493 (1999). Our interpretation of this motor vehicle law is informed by “a common sense approach” that eschews the use of “narrow and strained construction” to exclude from its operation circumstances that fall within the plain meaning and scope of the language used by the legislature.

See State v. Fabritz, 276 Md. 416, 422 , 348 A.2d 275 (1975); Comstock v. State, 82 Md.App. 744, 752 , 573 A.2d 117 (1990). Moreover, “[wjhere statutes relate to the same subject matter, and are not inconsistent with each other, they should be construed together and harmonized where consistent with their general object and scope.” We accept the presumption that the Legislature intended that which it enacted and “[njeither statute should be read ... so as to render the other, or any portion of it, meaningless, surplusage, superfluous or nugatory.” ⁴⁰ Gwin v. Motor Vehicle Admin., 385 Md. 440, 462 , 869 A.2d 822 (2005) (citations omitted). Driving On A Revoked “Privilege To Drive” Under section 16-101(a) of the Transportation Article, all drivers of passenger cars on Maryland highways must be either licensed or exempted from licensing requirements: (a) In general. — An individual may not drive or attempt to drive a motor vehicle on any highway in this State unless: (1) The individual holds a driver’s license issued under this title; (2) The individual is expressly exempt from the licensing requirements of this title; or (3) The individual otherwise is specifically authorized by this title to drive vehicles of the class that the individual is driving or attempting to drive. Section 16-102, in turn, excludes certain drivers from the licensing requirement, but none of these exclusions applies to Sullivan. 3 A misdemeanor conviction for “driving while not licensed” results in the assessment of five points and a fine of up to $500.

See Transp. § 16-402(a)(14)(after conviction for violation of vehicle laws, “points shall be assessed” as specified in this subsection); Transp. § 27-101(b)(“Except as otherwise provided in this section, any person convicted of a misdemean- or for the violation of any of the provisions of the Maryland Vehicle Law is subject to a fine of not more than $500”). At issue in this appeal is section 16-303(d), which provides that “[a] person may not drive a motor vehicle on any highway ... while the person’s license or privilege to drive is revoked in this State.” 4 A conviction may be punished, for a first ⁴¹ offense, by “a fíne of not more than $1,000, or imprisonment for not more than 1 year, or both[,]” and “[f]or any subsequent offense, a fine of not more than $1,000, or imprisonment for not more than 2 years, or both.” Transp. § 27-101(h). In addition, with exceptions not relevant here, a conviction for driving after revocation results in the assessment of 12 points. See Transp. § 16-402(a)(30).

Although the term “license” has been defined by the General Assembly, 5 the phrase “privilege to drive” has not. This language regularly appears in the disjunctive with the term “license,” but there is neither regulation nor case law defining “privilege to drive” in the context of section 16 — 303(d), or otherwise explaining how a “privilege to drive” differs from a “license.” On appeal Sullivan renews his arguments that he cannot be convicted of driving on a revoked license because he has never been issued a license, and that he cannot be convicted of driving on a revoked privilege to drive because he has never qualified to drive without a license. Acknowledging that there is no Maryland precedent on this question, Sullivan interprets “privilege to drive” to mean only the permission granted to drivers under those exceptions to the licensing requirements set forth in section 16-102. He also cites dictum in Tederick v. State, 125 Md.App. 37 , 723 A.2d 917 , aff'd sub nom.

Jones v. State, 357 Md. 141 , 742 A.2d 493 (1999), and out-of-state cases adopting his reasoning. Sullivan points first to a philosophical query posed in dictum in Tederick , which he suggests supports his position. In Tederick , this Court held that double jeopardy principles did not preclude two separate convictions under section 16-303(d) for a single act of driving on a license that had, on separate ⁴² occasions, first been revoked and then later suspended. See Tederick, 125 Md.App. at 47 , 723 A.2d 917 .

Writing for the Court, Judge Moylan offered the following aside: We are not even tempted to grapple with the intimidating philosophical question of how one can suspend something that has earlier been revoked. When the privilege to drive is revoked, it thereby becomes nonexistent. How, then, can one subsequently suspend nothing? Id. at 45 n. 3, 723 A.2d 917 .

The Court of Appeals, reviewing our decision, treated driving on a revoked license and driving on a suspended license as separate offenses, but held that a single act of driving cannot be punished twice under sentencing merger principles. See Jones, 357 Md. at 152 , 742 A.2d 493 . In doing so, the Court quoted Judge Moylan’s “cogent footnote,” and decided to “likewise follow the same path.” See id. at 152 n. 5, 742 A.2d 493 . This case requires us to answer the analogous and likewise challenging question of how the State can revoke a license that has never been issued.

As Sullivan points out, many courts called upon to construe similar statutory schemes have held that a defendant who has never been issued a license, and is not exempt from the requirement of obtaining one, cannot be convicted of driving on a revoked or suspended license. In Kansas v. Bowie, 268 Kan. 794 , 999 P.2d 947 (2000), for example, the Supreme Court of Kansas interpreted a statutory scheme in which separate code provisions also required all drivers to have a license and prohibited driving on a canceled, suspended, or revoked license. 6 After considering cases interpreting various statutory schemes, the Kansas court held that ⁴³ “a person who never had a driver’s license cannot be charged with driving while suspended ... but can be charged with driving without a license[.]” Id. at 952. The court reasoned: [Djriving a motor vehicle in Kansas is not a natural right but a privilege. That privilege is granted by the State and, pursuant to 8-235(a), the privilege to drive is granted only to those drivers with a valid license or those who are specifically exempt____ Exempt persons include nonresidents with a valid license issued elsewhere, or whose home state or country does not require a license to drive, and persons operating farm equipment.

The legislature used the phrase “valid driver’s license” in 8-235(a) and, by doing so, intended to specify the tangible representation of a driving privilege. In 8-262(a), the legislature uses the term “privilege” rather than “license” and, by so doing, demonstrated the intent to include licensed drivers as well as drivers exempt under 8-236. No other drivers are granted a privilege to drive in Kansas. Further, the legislature limited the scope of the provision to persons whose privilege to drive is “canceled, suspended or revoked.” In so doing, the legislature intended for only licensed persons to be covered by 8-262(a).

Id. at 951 (emphasis added and citations omitted). The court also relied on the settled principle of statutory construction that a more specific statute generally controls: Bowie also argues that the statute prohibiting driving without a valid driver’s license governs because it is more specific to his circumstances than the statute prohibiting driving while suspended. It is well established in Kansas courts that “where a statute dealing generally with a subject and a statute dealing specifically with a certain phase of the subject are conflicting, the more specific statute generally controls unless the legislature intended otherwise.” In this case, it does appear that the legislature intended for the driving without a valid driver’s license statute to govern Bowie’s circumstances ... A driver who never gets a license ⁴⁴ never has it canceled, suspended, or revoked within the meaning of 8-262(a).

Id. (citations omitted). See, e.g., GEICO v. Ins. Comm’r, 332 Md. 124, 132-33 , 630 A.2d 713 (1993)(“Where provisions of one of the statutes deal with the common subject generally and those of the other do so more specifically, the statutes may be harmonized by viewing the more specific statute as an exception to the more general one”).

In reaching this conclusion, the Kansas court rejected the government’s argument that such an interpretation of the statutory scheme “elevates an unlicensed driver to a legally superior position over a licensed driver and in doing so frustrates the legislature’s intention to foster public highway safety.” Bowie, 999 P.2d at 951-52 . Acknowledging the appeal of this point, the Bowie Court nevertheless concluded that the problem required a legislative fix: Notwithstanding the patent purpose of the legislature to promote safety on public highways, adopting the State’s position on this issue would require the court to enlarge the phrase “canceled, suspended or revoked” to include driving privileges never granted.... A reasonable and sensible interpretation of the Kansas statutory scheme leads us to the conclusion that a person who never had a driver’s license cannot be charged with driving while suspended pursuant to 8-262 but can be charged with driving without a license in violation of 8-235(a). Id. at 952 (citation omitted).

In City of Billings v. Gonzales, 331 Mont. 71 , 128 P.3d 1014, 1016 (2006), the Supreme Court of Montana reached a similar conclusion in interpreting its statutory scheme, which, like Maryland’s, grants the privilege to drive only to those who have been issued a driver’s license or otherwise qualify for a statutory exemption. A separate provision prohibits driving “when the person’s privilege to do so is suspended or revoked[.]” Following the Kansas court’s decision in Bowie , the Montana court agreed with five drivers that they could not be charged under this law, because they had never been licensed: ⁴⁵ The distinction throughout Title 61 between “license” or “driving privilege” ... demonstrates that individuals lawfully can drive in Montana either by obtaining a driver’s license pursuant to § 61-5-102, MCA, or by establishing that they have a privilege to drive without a license pursuant to § 61-5-104, MCA. The plain language of § 61-5-212, MCA, requires that a person possess a privilege to drive before that privilege can be suspended or revoked. We have determined that the privilege to drive must be granted by law.

Therefore, absent a license or privilege to drive without a license pursuant to § 61-5-104, MCA, the State cannot convict a person under § 61-5-212, MCA, with driving while license suspended or revoked. Adopting the State’s position would require this Court to enlarge the phrase “suspended or revoked” of § 61-5-212, MCA, to include a driving privilege never granted. It is not the role of this Court to insert what has been omitted when applying statutes. Id. at 1016-17 (emphasis added).

The Montana Supreme Court recognized that the State’s “recourse when dealing with unlicensed drivers” is to charge them “with driving without a license!,]” even if that violation carries a slightly lesser penalty than the one for driving on a revoked or suspended license. See id. at 1017. Thus, “[a] reasonable and sensible interpretation of the relevant statutory scheme leads us to conclude that a person who does not have a privilege to drive, either through a driver’s license or statutory licensure exemption, cannot be charged with driving while their privilege has been suspended or revoked!.]” Id. In New York v. Evans, 79 Misc.2d 131 , 359 N.Y.S.2d 449, 451 (Co.Ct.1974), a New York trial court, when reviewing a conviction for operating a vehicle while the driver’s license was suspended or revoked, commented on the inequities of a comparable statutory scheme existing at that time: What all this means, of course, is that the defendant has found a convenient loophole in the Vehicle and Traffic Law.... [A]n individual who flagrantly violates the law by ⁴⁶ never applying for a license but driving nevertheless is in a better legal position than an individual whose driving record is blemished by a single offense and whose license was consequently revoked.

The flagrant lawbreaker apparently can only be charged with a violation upon his arrest ... regardless of the number of convictions he has had for the same offense. However, the single offender subsequently arrested for operation while license is revoked is subject to prosecution for a misdemeanor. We urge the legislature to close the loophole and correct the obvious inequities in the law. The court, nonetheless, reversed