Argued January 9, 2014.
Certiorari to the Circuit Court for Somerset County. Case No. 19-C-015606. D. William Simpson, JUDGE.
ARGUED BY Leight D. Collins, Assistant Attorney General (Douglas F. Gansler, Attorney General of Baltimore, MD.) on brief FOR PETITIONERS.
ARGUED BY John K. Phoebus (john K. Phoebus, P.A. of Crisfied, MD> ) on brief FOR RESPONDENT
Amici Curiae Brief of the National College for DUI Defense and the Maryland Criminal Defense Attorneys' Association as Amici Curae.
ARGUED BY: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
[438 Md. 612] McDonald, J.
In the effort to reduce the hazards caused by drunk drivers, the General Assembly, like the legislatures of most other states, has enacted as part of the Maryland Vehicle Law a statute known as " the implied consent, administrative per se law." That statute incorporates " implied consent" in that it provides that any individual who drives a vehicle in Maryland is deemed to have consented to take a chemical test -- usually, a breath test -- to measure blood alcohol concentration, if stopped by a police officer with reasonable grounds to believe that the person has been driving under the influence of alcohol. Despite the statute's declaration of implied consent by all drivers, it recognizes that a driver detained by an officer may refuse to take the breath test. But the time for making that decision is limited -- blood alcohol concentration is transient and any test must be conducted within two hours of the stop.
[438 Md. 613] The phrase " administrative per se" refers to the administrative consequences of a refusal to take the breath test, or of test results that reveal that the driver has a blood alcohol concentration above certain levels (regardless of whether the driver otherwise appears to be impaired). In both cases, the law provides for an automatic suspension of the driver's license for specified periods. The license suspension is an administrative sanction that is distinct from any criminal prosecution of the driver that might also ensue.
Under the " implied consent, administrative per se law," a detained driver thus has a choice to make -- a choice with legal consequences. On the one hand, refusing the test carries a sure suspension; on the other, taking the test may result in no sanction
at all or in a significant suspension plus an increased potential for criminal prosecution, depending on the test result.
Does a detained driver have a right to consult with legal counsel before making this choice? What are the consequences if the police officer declines to allow the detained driver to contact counsel? How does the significant time constraint for taking the test affect this calculus? And, if there is a right to a pre-test consultation with counsel, must the State furnish counsel for indigent drivers, or is such a right only for the well-to-do?
This Court has previously held, in the context of a criminal prosecution, that a driver detained on suspicion of drunk driving who requests an opportunity to consult with counsel before deciding whether to take the test has a due process right to be allowed a reasonable opportunity to do so if, in the view of the officer, it would not interfere with a timely administration of the test. In that case, the Court suggested that violation of that right would result in exclusion of any adverse test result from evidence in a criminal prosecution. In a subsequent case, the Court considered the effect of an alleged constitutional violation in the apprehension of a suspected drunk driver who refused a breath test; it held that a violation that might result in the exclusion of evidence from a [438 Md. 614] criminal trial would not affect the administrative suspension of the driver's license. More recently, this Court has indicated, in a passage not necessary to the decision of the case before it ( i.e., dicta), that the failure to allow a pre-test opportunity to consult with counsel would also not relieve the driver of an administrative license suspension. To decide this case, we must decide whether to adhere to that view.
For the reasons set forth below, we confirm the view previously expressed in dicta. Even if a suspected drunk driver is denied the opportunity to consult counsel before deciding whether to take the breath test and might have a test refusal or a test result excluded from evidence in a criminal case, the driver may not avoid the automatic administrative license suspension that the statute assigns to the test refusal or test result.
The Implied Consent, Administrative Per Se Law
Motivated in part by incentives created by federal law, nearly every state has enacted some form of an implied consent, administrative per se law as part of its strategy to combat drunk driving. Such a law supplements the criminal penalties for drunk driving with an administrative remedy -- a remedy that can remove an impaired driver from the highways for a certain period of time without need to pursue a [438 Md. 615] criminal prosecution, as well as encourage drivers to cooperate in a test
that measures potential impairment due to alcohol consumption. See Report of Task Force on Drunk and Drugged Driving to Maryland General Assembly (1988 Interim) at pp. 8, 11.
The Maryland version appears in the Maryland Vehicle Law, which comprises titles 11 through 27 of the Transportation Article (" TR" ) of the Maryland Code. TR § 11-206. The implied consent, administrative per se law is codified in TR § 16-205.1. As to implied consent, it states, in pertinent part:
Any person who drives or attempts to drive a motor vehicle ... in this State is deemed to have consented ... to take a [breath] test [to determine blood alcohol concentration] if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol....
TR § 16-205.1(a)(2). Although the statute deems all drivers in Maryland to have consented to take a breath test, it nonetheless allows a driver detained under suspicion of drunk driving to elect at that time whether to take the test. TR § 16-205.1(b). If the driver chooses to take the test, the officer must ensure that the test is administered within two hours of the time the driver was stopped. See Maryland Code, Courts & Judicial Proceedings Article (" CJ" ), § 10-303(a).
Thus, while consent is implied, it may be withdrawn -- for a price. Under the statute, a refusal to take the test results in an administrative license suspension of 120 days for a first offense, and in a suspension of one year for a second or subsequent offense. TR § 16-205.1(b)(1)(i)(3). The alternative is to take the test and risk a result that may carry lesser periods of administrative suspension -- or perhaps no suspension at all -- although an adverse result may also be used in a [438 Md. 616] criminal prosecution. A test result showing a blood alcohol concentration above .08 results in an administrative suspension of between 45 days and 180 days, depending on the level of alcohol concentration and whether it is a first or subsequent offense. TR § 16-205.1(b)(1)(i)(1)-(2). In some circumstances, a
suspension may be modified in favor of a restricted license that allows the individual to drive for employment, education, or similar purposes. TR § 16-205.1(n), (o). The automatic suspension for a test refusal is designed to encourage drivers to take the breath test, with the result that impaired drivers can be accurately detected and the safety of the roadways enhanced.
[438 Md. 617] The statute requires the arresting officer to advise the detainee of the possible administrative sanctions for a refusal to take the breath test and for test results that show blood alcohol concentration above certain levels. TR § 16-205.1(b)(2). Typically, the officer satisfies this requirement by reading, and providing the driver with, a form created by the Motor Vehicle Administration (" MVA" ) for that purpose, known as the " DR-15" form. That form sets forth a detained driver's options under the implied consent statute, the consequences of failing to take the breath test and of test results that indicate certain levels of blood alcohol concentration, and other rights and consequences, including the right to an administrative hearing. See Motor Vehicle Administration v. Delawter, 403 Md. 243, 262-67, 941 A.2d 1067 (2008).
If the driver refuses to take the test or fails the test, the officer is to serve an order of suspension on the person, seize the person's license, and issue a temporary license that may be used for a maximum of 45 days or until the individual's license is formally suspended after a license suspension hearing. TR § 16-205.1(b)(3). The statute permits the driver to request a hearing before an officer of the MVA. TR § 16-205.1(f). Under a delegation from the MVA, the hearing is conducted by an administrative law judge (" ALJ" ) of the Office of Administrative Hearings. TR § 12-104(e); COMAR 11.11.02.07. The statute enumerates specific issues that can be raised at the license suspension hearing: whether the officer had reasonable grounds for believing that the driver was impaired, whether there was evidence of drug or alcohol use by the driver, whether the officer properly advised the driver in accordance with the statute when requesting the breath test, whether the driver refused the test, and related issues. TR § 16-205.1(f)(7); see Motor Vehicle Administration v. Jones,
380 Md. 164, 844 A.2d 388 (2004) (ALJ may not consider whether a test was performed within two hours of detention as it is not among the hearing issues enumerated in [438 Md. 618] TR § 16-205.1(f)(7)(i)). Whether the driver had an opportunity to consult counsel before deciding whether to take the breath test is not among those issues. If a suspension is imposed as a result of the hearing, the driver may seek judicial review in the circuit court. TR § 16-205.1(j); TR § 12-209.
The statute provides that the determination of any facts by the MVA " is independent of the determination of the same or similar facts in the adjudication of any criminal charges." TR § 16-205.1( l ). Moreover, a criminal conviction arising out of the same occurrence may result in additional administrative sanctions. TR § 16-205.1(k).
A Traffic Stop and its Aftermath
The Stop and Test of