We have noticed lately what seems like an extraordinary number of referrals to the MAB.
When anyone suspects that a driver may have a physical or mental condition that would affect their ability to drive, he or she may refer that person to the Medical Advisory Board (MAB) of the MVA.[1] Initially, the referral goes to the Division of Driver Wellness & Safety (DW&S).[2] DW&S sends the person a series of questionnaires that must be completed and returned as well as consent forms for the driver to allow the MVA to obtain reports from the driver’s physician and relevant treatment programs, detailing the condition, diagnosis, prognosis, treatment, and any medications they have been prescribed.
After receiving the information, DW&S may take a number of actions. Parameters are set forth in COMAR § 11.17.03.04 for how to respond to specified medical conditions to guide the MVA’s determination. DW&S may further refer the person to the MAB for review by a physician.[3] The Medical Advisory Board makes recommendations to the MVA when individuals are referred to the MAB and a certain physical or mental condition is indicated.[4]
As a result of its review of the information submitted in the referral, the MVA may impose an emergency suspension, may recommend a suspension, or may require a re-examination of the driver. The emergency suspension may be imposed “[i]f the physical or mental condition of an individual indicates there is a likelihood of substantial and immediate danger and harm to the individual or others if the individual’s license is continued pending evaluation by the Medical Advisory Board[.]”[5] On that basis, the MVA may suspend the license pursuant to Transp. § 16-206(a)(ii), which provides:
(a)(1) The Administration may suspend, revoke, or refuse to issue or renew the license of any resident or the privilege to drive of any nonresident on a showing by its records or other sufficient evidence that the applicant or licensee:
(ii) Is an unfit, unsafe, or habitually reckless or negligent driver of a motor vehicle; . . .
In that case, the driver may request a prompt post-suspension hearing at Hunt Valley within seven days, or at a location closer to the driver to be scheduled in the normal course.[6] When the MVA recommends a suspension, if a hearing is requested, the licensee is permitted to drive pending the hearing.[7]
In lieu of a suspension, the MVA may require the person to submit to a re-examination if the MVA has “has good cause to believe that the licensee is unfit, unsafe, or otherwise not qualified to be licensed[.]”[8] The re-examination requested can be functional capacity testing, a road test, or vision testing. If the licensee fails to pass the re-examination, after one or sometimes two attempts, his or her driver’s license may be suspended.[9] Before issuing a suspension, the MVA must provide the driver a hearing with “an opportunity to cross-examine” the person alleging the licensee is an “unfit or unsafe driver.”[10]
The availability of a hearing to contest suspensions as well as re-examinations was stated by the Court of Appeals in Motor Vehicle Admin. v. Delawter.[11]
The Board does not have the power to take any action against an individual’s driver’s license, although potentially it could recommend denial, suspension, modification or revocation of a driver’s license, as well as reexamination at an MVA office. See id. at 16–207; COMAR 11.17.03.04–.06 (2007). If the MVA adopts the Medical Advisory Board’s proposed actions, the driver is then notified and is entitled to request an administrative hearing to challenge the MVA’s actions. See COMAR 11.17.03.05–.06 (2007).
In Motor Vehicle Administration v. Mohler,[12] the Court of Appeals held the issue under Transp. § 16-206 is whether the driver is unfit or unsafe at the time of the hearing.
Occasionally, the MVA may require a re-examination after an Administrative Law Judge has made a finding at the emergency suspension hearing that the driver is not “an unfit, unsafe, or habitually reckless or negligent driver of a motor vehicle” under Transp. § 16-206(a)(1)(ii). As noted above in order to require a re-examination, Transp. § 16-207 requires “good cause to believe that the licensee is unfit, unsafe, or otherwise not qualified to be licensed.” An argument could be made that a finding that the licensee is not unfit or unsafe under § 16-206 negates the MVA’s ability to obtain a good cause finding under Transp. § 16-207.
Although that section impliedly creates a right to a hearing, if the MVA requires a re-examination, it does not generally offer a hearing to challenge it. Rather, the licensee must normally fail to take the re-examination by the deadline set by the MVA and receive a suspension letter in order to be offered a hearing. The licensee will normally be allowed to drive pending the hearing. If the good cause finding is sustained, the driver could request the ALJ to extend the deadline for passing the re-examination.
[1] Motor Vehicle Admin. v. Delawter, 403 Md. 243, 260, 941 A.2d 1067, 1078 (2008), citing, 82 Op. Att’y Gen. 189, 189 (Md.1997) and 82 Op. Att’y Gen. 111, 112 (Md.1997). The MAB is composed of “qualified physicians and optometrists” appointed by the MVA to properly supervise the physical and mental conditions of licensees. Transp. § 16-188(a)(i)
[2] https://mva.maryland.gov/about-mva/Pages/info/26200/safety.aspx (last visited, Nov. 12, 2020).
[3] https://mva.maryland.gov/about-mva/Pages/info/26200/26200-03T.aspx (last visited, Nov. 12, 2020)
[4] COMAR 11.17.03.03.
[5] COMAR § 11.17.03.08 Emergency Suspension.
[6] See Transp. § 16-206(d)(5)(ii); COMAR § 11.11.02.03 (D).
[7] COMAR § 11.17.03.05(E).
[8] Transp. § 16-207(a)(1)(ii); COMAR § 11.17.01.01.
[9] Transp. § 16-207(c).
[10] Transp. § 16-207(b)(1).
[11] Motor Vehicle Admin. v. Delawter, 403 Md. 243, 260, 941 A.2d 1067, 1078 (2008).
[12] Motor Vehicle Admin. v. Mohler, 318 Md. 219, 228, 567 A.2d 929, 934 (1990)