Articles Posted in MVA

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This past Thursday the Maryland Court of Appeals held oral argument in Motor Vehicle Administration v. Deering. John K. Phoebus of Salisbury, Maryland argued on behalf of Ms. Deering that Deering’s license should not have been suspended when the police officer would not let her call her lawyer before deciding whether to take or refuse a breath test. She elected to submit to the breath test and failed. The rule of Sites v. State, decided in 1984, is that when a person arrested for DUI asks to call a lawyer, they must be allowed an opportunity to do so that does not interfere with the State’s ability to obtain a breath test. The rule was clearly violated in Deering’s case, but the MVA argued that the violation cannot be raised as a defense at the administrative hearing, only in court.

An amicus brief filed by Leonard R. Stamm on behalf of the National College of DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys’ Association (MCDAA) came up during oral argument. Chief Judge Mary Ellen Barbera noted that one of the claims in the brief was that if the Court ruled in the MVA’s favor it would be changing the status quo. The brief stated that the Sites defense has been allowed at MVA hearings for 30 years. The brief also stated that it was only relatively recently that a growing number of judges have started to disallow the defense, as a result of the Court’s decision in Najafi v. Motor Vehicle Administration. Najafi had stated in dicta (meaning a statement by the Court that is not necessary to resolve the case and therefore not binding on lower tribunals) that the denial of counsel defense could not be raised at the MVA license suspension hearing. However, Chief Judge Barbera noted that there was no data cited to support this statement and wanted to know from counsel whether they agreed with it. Counsel for the MVA, Leight Collins, did not dispute the statement and acknowledged that there is no data base from which data could be culled to support or opposed the statement. Rather, there are paper records of the hearings. So there is no data that could have been provided.

The amicus brief was also quoted in the Daily Record.

“The manner in which the officer reads the form can…detract from its ability to be understood,” attorney Leonard R. Stamm wrote in the friend-of-the-court brief. “Additionally, most suspects have no legal training or understanding to assist them in making an intelligent decision, that usually occurs late at night, when they are tired, afraid, upset and traumatized.”
Stamm is with Goldstein & Stamm P.A. in Greenbelt.

A number of judges asked whether officers were required to advise suspects of their right to call a lawyer. The Court had rejected a similar claim years earlier in McAvoy v. State.
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When a person gets convicted of a drunk driving (DUI or DWI) charge in a state other than Maryland, that state usually sends a notice of the conviction to the Maryland Motor Vehicle Administration (MVA). The MVA is then authorized to take action against the person’s driver’s license under a number of provisions.

Artilce IV of the Driver License Compact, allows Maryland to take action against the person’s driver’s license as follows:

Effect of Conviction

(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this Compact, as it would if such conduct had occurred in the home state, in the case of convictions for:
(1) Manslaughter or negligent homicide resulting from the operation of a motor vehicle;
(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle;
(3) Any felony in the commission of which a motor vehicle is used;
(4) Failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another.
(b) As to any other convictions, reported pursuant to Article III, the licensing authority in the home state shall record the conviction on the individual’s driving record, but may not assess points for the conviction.

Md. Code Ann., Transp. § 16-703.

If a person receives 12 points within a two year period, and DUI carries 12 points, the MVA may revoke the person’s driver’s license. In addition, the driver may have his or her license revoked or suspended under Md. Code Ann., Transp. § 16-206(a)(1)(v) which provides that a driver may be revoked or suspended if the person “[h]as committed an offense in another state that, if committed in this State, would be grounds for suspension or revocation.”

The Administrative Law Judges (ALJs) who decide these cases have an enormous amount of discretion in deciding what sanction to impose. The ALJ can impose a sanction ranging from revocation to a reprimand (warning) and everything in between. This can include a restricted license for a month or two allowing only driving related to work, education, alcohol education, and medical purposes for the driver and family members. The ALJ may also impose a restriction requiring the driver to enroll in and successfully complete the Maryland Ignition Interlock System Program. Typically the driver presents mitigation evidence in the form of certificates of completion from alcohol education and treatment classes, and letters from an employer verifying a need for work related driving.
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The National College for DUI Defense (NCDD) and the Maryland Criminal Defense Attorneys’ Association (MCDAA) filed an amicus brief late last month authored by attorney Leonard R. Stamm in Motor Vehicle Administration (MVA) v. Deering.

Deering was arrested for DUI and requested to take a breath test. Before submitting she asked to call her lawyer. However, the police department had a policy of not allowing arrestees to call their lawyers before submitting to a breath test. The policy directly contradicts the Court of Appeals‘ holding in Sites v. State that a person accused of drunk driving has a right to contact a lawyer so long as the phone call does not interfere with the State’s ability to conduct the test. Deering submitted to the test and blew a 0.16 At her license suspension hearing for a test of 0.15 or greater her attorney asked the Administrative Law Judge (ALJ) to take “no action” due to the failure to allow her to call her lawyer. The ALJ denied the motion, but was reversed by the circuit court on appeal. The MVA asked the Court of Appeals to hear the case and they agreed to.

The issue in the case is whether denial of counsel can be raised as a defense at an administrative license suspension hearing. The amicus brief raises 6 points.

1. The considerations governing the choice of submitting to or refusing an alcohol test are much more complex now than when Sites was decided in 1984, the consequences of a wrong choice more severe, and the need for counsel greater.

2. The due process right to contact counsel was recognized by this court in Sites primarily due to a potential loss of the ability to earn a livelihood, and the MVA hearing is the only forum where loss of employment or inability to obtain employment can meaningfully be addressed

3. Addressing due process concerns, the legislature amended § 16-205.1(f) to include a requirement that the officer “fully advise” the driver of the administrative sanctions for failing and for refusing the test

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Last year, the Maryland legislature changed the law that required the court to send trial notices to all persons receiving traffic tickets. Now a person receiving a payable (minor) traffic violation and no jailable (non-payable – must appear) companion tickets must either pay the ticket or request a trial within 30 days. If this is not done the driver’s license is suspended until they pay it.

The ticket says:

IF ANY OF YOUR VIOLATIONS ARE MARKED “MUST APPEAR”: You will automatically be mailed a notice of your trial date by
the Court. Failure to appear will result in a warrant for your arrest.

Then further down on the form it says:

IF ANY OF YOUR VIOLATIONS ARE MARKED “PAYABLE FINE”: You must comply with one of the following within 30 days
after receipt of the citation. Provide any change of address if applicable.
OPTION #1 – PAYMENT: Pay the full amount of the fine for each violation within 30 days at any District Court of Maryland, by
mail, or by credit card (fees apply) using the IVR system or the Court Website. If paying by mail, make check or money order
payable to District Court of MD and include citation number(s) on front of check or money order. On the option form below, check
“Pay Fine Amount” for each violation being paid and mail the form with your payment to the address shown for the District Court of
MD.
An additional $10 service fee will be imposed for each dishonored check.
OPTION #2 – REQUEST A WAIVER HEARING REGARDING SENTENCING AND DISPOSITION INSTEAD OF A TRIAL: On the
option form below, check “Request Waiver Hearing” for each violation where hearing is requested, sign and date at bottom and mail the
form within 30 days to the address shown below. DO NOT SEND PAYMENT at this time.
OPTION #3 – REQUEST TRIAL: On the option form below, check “Request Trial” for each violation where Trial is requested, sign, date
at bottom and mail the form within 30 days to the address shown below. DO NOT SEND PAYMENT at this time.

The problem occurs when the person (or their parent!) pays the citation without knowing the consequences. First of all, if any of the tickets is a must appear, then it should absolutely not be paid because a trial date will be scheduled for all the tickets together. The notice on the citation is not clear about this! Even if none of the tickets is a must appear, no ticket should be paid before the person knows everything that will happen at the MVA. And in most cases, people receiving tickets do better by going to court anyway.
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In the past year there have been a number of developments in the area of DUI law in Maryland, and most of them favor the State.

The Court of Appeals has issued a number of decisions favoring the MVA. In Hill v. Motor Vehicle Admin., the Court of Appeals rejected an argument that the DR-15 was misleading to drivers holding a commercial drivers license (CDL) because the form was claimed to not advise CDL holders that if they refused a breath test the interlock option would not available in lieu of the disqualification of the CDL. In Najafi v. Motor Vehicle Admin., although the Court of Appeals held that Najafi’s right to counsel was not violated, it said in dicta that a claim of a violation of the right to call a lawyer before deciding whether to submit to a breath or blood alcohol test cannot be litigated at an MVA hearing. In Motor Vehicle Admin. v. Loane, the Court of Appeals construed the plain language of Transportation Article, § 16-205.1(a)(2), that the implied consent law does not apply on purely private property. The Court held that despite this plain language that the implied consent law does apply on purely private property and that the issue cannot be raised in defense at an MVA implied consent hearing. In Thomas v. Motor Vehicle Admin., the Court of Appeals held that the “detention” referred to in § 16-205.1 is not required to be an arrest. In Motor Vehicle Admin. v. Aiken, the court held that the MVA need not produce the test strip or form Notification of Test Result, if the breath operator noted the test results under oath on the DR-15A Form. The court held that the MVA did not need to show in its prima facie case that the test had been administered with equipment approved by the toxicologist, because approval by the toxicologist was not listed as an issue that could be considered at the hearing under § 16-205.1(f)(7) of the Transportation Article. In Headen v. Motor Vehicle Admin., the Court of Appeals held that under § 12-111(b)(2) of the Transportation Article the MVA could designate drunk driving offenses as confidential after five years and deny expungement as to those convictions. The Court also held that a driver who is refused a drivers license due to an out-of-state suspension or revocation is not entitled to an administrative hearing to contest the refusal.

In Motor Vehicle Admin. v. Shea, the Court of Appeals reviewed the question of what constitutes reasonable grounds to support the detention at an MVA hearing. The facts included the officer’s statement concerning a moderate odor of an alcohol beverage on the driver’s breath and that the driver submitted to standardized field sobriety tests. An administrative law judge took action against Shea’s license. On appeal, in response to Shea’s argument that the DR-15 Form provided insufficient reasonable grounds, the circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The circuit court ruled for Shea but held that moderate odor of an alcohol beverage combined with a seatbelt violation was an insufficient basis to conduct field sobriety tests. The Court of Appeals reversed, relying on Motor Vehicle Admin. v. Richards, since the Fourth Amendment exclusionary rule does not apply in MVA hearings. The Court also avoided deciding whether a moderate odor of an alcohol beverage alone could constitute reasonable grounds to support a detention to take a test, since the Court found that there was substantial evidence to support the finding of reasonable grounds, namely that the ALJ could have inferred on this record that Shea failed the standardized field sobriety tests.
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Title 16 of Maryland’s Transportation Article contains licensing requirements and license offenses. Included in this section is Maryland’s implied consent law (section 16-205.1), which requires drivers detained on suspicion of drunk driving to submit to an alcohol test and face license penalties for failing or refusing the test. The sections in Title 16 tend to have one thing in common: a license is only required to drive on “a highway or private property used by the public in general.” In other words, you can drive on purely private property without a driver’s license.

In the case of Loane v. Motor Vehicle Administration, the Court of Appeals considered the following sentence from section 16-205.1:

“[a]ny 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 … to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol….”

Despite what appears to be the plain language of the statute, the Court construed this section to apply on private property.

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Once a driver has been arrested for a DUI or DWI in Maryland by state, not federal, police, the arresting officer is required to read a form to the driver, called the DR-15 Form. This form explains the penalties for failing or refusing a breath or blood test. Of course if the driver passes the test, i.e. produces a result below .08, there is no penalty. Unfortunately, very few people have even the foggiest clue of what they will blow.

The penalty for failing the test is a 45 day suspension on a first offense or a 90 day suspension on a second or subsequent offense if the driver blows .08 or higher but less than .15. If it is a first offense within five years the driver may be eligible for work, school, medical, or alcohol education restricted driving privileges. If it is a second offense within five years the driver may only obtain a restriction allowing the driver to drive only vehicles equipped with an ignition interlock system.

If the driver blows .15 or higher the penalty is a 90 day suspension on a first offense or a 180 day suspension on a second or subsequent offense. In lieu of the suspension, the driver may be allowed to drive with an ignition interlock restriction for one year.

If the driver refuses the the penalties are a 120 day suspension for a first offense and a one year suspension for a second or subsequent offense. Again, the driver may be allowed to drive with an ignition interlock restriction for one year. A refusal may also be considered as evidence of guilt in court and may also subject the offender to an additional 60 days in jail.

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Every year the Maryland legislature is bombarded by MADD, the Maryland State Police, and the States Attorneys, and are asked to strengthen Maryland’s DUI laws. Every year the DUI laws get strengthened, they never get made more lenient.  This year they made a number of changes regarding ignition interlocks that raise some serious questions about how they will be implemented.

Prior to October 1, 2011, ignition interlock restrictions were primarily imposed where the driver submitted to a test with a result of .15 or higher, or refused, or had a second or subsequent test failure or refusal, or a second finding of guilt.  After October 1, 2011 the new laws requires ignition interlocks as follows:

Mandatory Participation: A driver must participate in the program as a condition of modification of a license suspension or revocation of a license or the issuance of a restrictive license if the driver:

  • is required to participate by a court order;
  • is convicted of driving while under the influence of alcohol or under the influence of alcohol per se and had a blood alcohol concentration (BAC) at the time of testing of 0.15 or greater;
  • is convicted of driving while under the influence of alcohol, under the influence of alcohol per se, or while impaired by alcohol and within the preceding five years was convicted of any specified alcohol and/or drug-related driving offense; or
  • was younger than age 21 and violated the alcohol restriction imposed on the driver’s license or committed the specified alcohol-related driving offense.

These ignition interlock restrictions run for six months for a first ignition interlock restriction, for one year for a second ignition interlock restriction, and three years for a third or subsequent ignition interlock restriction.  Failure to comply leads to a one year suspension of the license or privilege in Maryland, after which the driver must still comply with the program in order to get  a drivers license.  However after 45 days of the one year period the driver may be readmitted to the ignition interlock program.
 
Many drivers are unable to obtain an ignition interlock because they
live out of state or because they do not own a car. The new laws do not explain how the MVA is supposed to handle that situation.  Additionally, drivers of commercial motor vehicles who need a commercial drivers license (CDL) may also be out of luck under the 2011 laws.

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Defending drivers with a CDL (commercial driver’s license) who are charged with drunk driving is tricky. Each step of the process involves a risk that the CDL will either be disqualified pursuant to state and federal law, or suspended pursuant to regulations of the Maryland Motor Vehicle Administration (MVA). Under Code of Maryland Regulations (COMAR) 11.11.12.07 the MVA may not issue a CDL if the driver’s license is suspended. Unfortunately, the MVA interprets a case called Embrey v. MVA to hold that any kind of restricted license is the equivalent of a suspension. Under this interpretation, a driver with a work restriction or an ignition interlock restriction may not have a CDL.

The first hurdle through which the CDL driver must pass is the initial MVA hearing for a breath or blood test failure or refusal. If the driver took a test with a result of .08 or higher but less than .15, an effort must be made to persuade the Administrative Law Judge (ALJ) to either take no action or to issue a reprimand, as opposed to a 45 day work permit. If a work permit is issued it will be without the CDL. If the driver failed with a result of .15 or more, or refused a test, an effort must be made for no action. In either event, the ALJ would only have discretion to impose an ignition interlock restriction for one year. Again, this would be without CDL. Additionally, a refusal carries a separate one year disqualification of the CDL.
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