December 7, 2015
Certiorari to the Circuit Court for Baltimore County. Case
No. 03-C-14-011601. Nancy M. Purpura, JUDGE.
BY: Leight D. Collins, Assistant Attorney General (Brian E.
Frosh, Attorney General of Maryland of Glen Burnie, MD) on
brief for PETITIONER.
BY: Raymond M. Atkins, Jr. (of Towson, MD) on brief for
BEFORE: Barbera, C.J., Battaglia, Greene, Adkins, McDonald,
Watts, Harrell, Jr., Glenn T. (Retired, Specially Assigned),
JJ. Opinion by Watts, J.
Md. 102] Watts, J.
case, we interpret Md. Code Ann., Transp. (1977, 2012 Repl.
Vol., 2015 Supp.) (" TR" ) §
16-205.1, commonly known as
the " implied consent, administrative per se law,"
which provides a basis for the automatic suspension of the
licenses of drivers who refuse to submit to testing for
alcohol and drugs. Motor Vehicle Admin. v. Deering, 438 Md.
611, 615, 92 A.3d 495, 498 (2014). In Deering, id. at 612-13,
92 A.3d at 496-97, this Court explained the labels "
implied consent" and " administrative per se"
[TR § 16-205.1] incorporates " implied
consent" in that [TR § 16-205.1] 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  alcohol concentration, if stopped by a [law
enforcement] officer with reasonable grounds to believe that
the person has been driving under the influence of alcohol.
Despite [TR § 16-205.1]'s declaration of implied
consent by all drivers, [TR § 16-205.1] recognizes that
a driver detained by a[ law enforcement] officer may refuse
to take the  test. But the time for making that decision is
limited-- alcohol concentration is transient[,] and any
test must be conducted within two hours of the stop.
The phrase " administrative per se" refers to the
administrative consequences of a refusal to take the  test,
or of [446 Md. 103] test results that reveal that the driver
has a[n] alcohol concentration above certain levels
(regardless of whether the driver otherwise appears to be
impaired). In both cases, [TR § 16-205.1] 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 [TR § 16-205.1], 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.
we decide the following question: Under TR §
16-205.1(b)(2) and (3), is a driver subject to an automatic
license suspension for a refusal to take a drug test where
the driver has taken an alcohol concentration test and a law
enforcement officer has reasonable grounds to believe that
the driver was driving while impaired by drugs? TR §
16-205.1's plain language, purpose, and legislative
history lead us to the inescapable conclusion that the answer
to this question is " yes" ; under TR §
16-205.1(b)(2) and (3), a law enforcement officer with
reasonable grounds to suspect impairment may request that a
driver take both an alcohol concentration test and a drug
test, and the driver is subject to an automatic license
suspension for a refusal to take the second test.
29, 2014, Trooper G. Stambaugh (" Trooper
Stambaugh" ) of the Maryland State Police issued to
Jeffrey Thomas Gonce (" Gonce" ), Respondent, an
" Officer's Certification and Order of
Suspension" that contained the following facts, which we
summarize. At 5:00 p.m. on June 29, 2014, Gonce was driving
west on U.S. Route 50 near the intersection with Castle
Marina Road in Queen Anne's
County. Trooper Stambaugh stopped Gonce for failure to
securely fasten a [446 Md. 104] registration plate. Upon
seeing Gonce, Trooper Stambaugh observed what he believed to
be indications of impairment, and, thus, administered the
three-part Standardized Field Sobriety Test. The "
horizontal gaze nystagmus" test indicated zero out of a
possible six clues of impairment. The " walk and [446
Md. 105] turn" test indicated seven out of a possible
eight clues of impairment. The " one-leg stand"
test indicated three out of a possible four clues of
Stambaugh did not detect any odor of alcohol on Gonce's
breath. Trooper Stambaugh asked to perform a preliminary
breath test, to which Gonce consented. The preliminary breath
test indicated a breath alcohol concentration of 0.003 grams
of alcohol per 210 liters of breath. Trooper Stambaugh
arrested Gonce and provided him with an Advice of Rights
form, seeking permission pursuant to TR § 16-205.1 to
perform an alcohol concentration test.
agreed to take an alcohol concentration test. Specifically,
at 5:30 p.m., Gonce checked a box next to the words "
Yes - Agree to submit to an alcohol concentration test"
and signed the Advice of Rights form. According to a "
State of Maryland Notification to Defendant of Result of Test
for Alcohol Concentration" (bolding and some
capitalization omitted) and a printout from the equipment
that tested breath alcohol concentration,
between 6:07 p.m. and 6:13 p.m., Gonce took a breath alcohol
concentration test, which indicated a breath alcohol
concentration of 0.000 grams of alcohol per 210 liters of
breath. In other words, Gonce passed the alcohol
that Gonce had passed the breath alcohol concentration test,
but having observed indications of Gonce's impairment,
Trooper Stambaugh referred Gonce to Trooper First Class M.
Miller (" Trooper Miller" ), a drug recognition
expert. Trooper Miller completed a " Drug Recognition
Expert's Certification Form." At 7:05 p.m., Trooper
Miller evaluated Gonce. In the Drug Recognition Expert's
Certification Form, Trooper Miller stated:
I had reasonable grounds, which I have set forth below on
this form, to believe that [Gonce] was driving . . . a motor
[446 Md. 106] vehicle while so far under the influence of any
drug, any combination of drugs[,] or a combination of one or
more drugs and alcohol, that [Gonce] could not drive a
vehicle safely, or while under the influence of a Controlled
REASONABLE GROUNDS: [Horizontal gaze nystagmus], [Lack of
convergence], Droopy eyelids on the nod, Low raspy
slow speech, Facial itching, Little reaction to light[,
P]sychophysical impairment, 0.00[0 Breath alcohol
concentration], Slurred speech[,] Dry mouth, [C]onfused[.]
Miller asked Gonce to take a blood test for drugs or
controlled dangerous substances, and Gonce refused to take
the drug test.
at 8:15 p.m., Gonce signed a second Advice of Rights form, on
which he checked a box next to the words " No - Drug or
[Controlled Dangerous Substances] test refused ([Drug
Recognition Expert] must complete & submit [Drug
Recognition Expert] Certification Form)[.]" Afterward,
Trooper Stambaugh confiscated Gonce's driver's
license, served an order of suspension on Gonce, and issued
him a temporary driver's license.
requested an administrative hearing to show cause why the
Motor Vehicle Administration (" the MVA" ),
Petitioner, should not suspend his driver's license. On
September 23, 2014, an administrative law judge (" the
ALJ" ) of the Office of Administrative Hearings
conducted an administrative hearing. The ALJ admitted into
evidence the Officer's Certification and [446 Md. 107]
Order of Suspension, the State of Maryland Notification to
Defendant of Result of Test for Alcohol Concentration, the
Drug Recognition Expert's Certification Form, the
printout from the equipment that tested breath alcohol
concentration, and both Advice of Rights forms.
administrative hearing, Gonce did not dispute the accuracy of
any facts in any document, including Trooper Stambaugh's
observations, Trooper Miller's observations, or the
results of the three-part
Standardized Field Sobriety Test. Nor did Gonce dispute
that Trooper Stambaugh had reasonable grounds to believe that
he had been driving while under the influence of a drug or
controlled dangerous substance. Instead, at the
administrative hearing, Gonce asserted that, under TR §
16-205.1, he was not subject to an automatic license
suspension for his refusal to take a drug test because he had
taken and passed the alcohol concentration test. More
broadly, Gonce argued that, under TR § 16-205.1, a
driver is subject to an automatic license suspension for a
refusal to take either an alcohol concentration test or a
drug test, but not for a refusal to take a second test after
the driver took one test. The ALJ rejected Gonce's
contention, concluding that:
The way [that TR § 16-205.1] is written, it's a test
for alcohol concentration and/or a test for drug detection[,
or] for [controlled dangerous substances]. Here, [Trooper
Stambaugh] would not have had reasonable grounds to request
[Gonce] to take a [controlled dangerous substances] test
until after he was seen by [Trooper Miller].
(Emphasis added). The ALJ determined that Trooper Stambaugh
had reasonable grounds to believe that Gonce had been driving
while under the influence of a controlled dangerous [446 Md.
108] substance; concluded that Gonce violated TR §
16-205.1 by refusing to take the drug test; and ordered that
Gonce's driver's license be suspended for one hundred
and twenty days.
petitioned for judicial review. On March 17, 2015, the
Circuit Court for Baltimore County (" the circuit
court" ) conducted a hearing. In an oral ruling, the
circuit court reversed the ALJ's decision and concluded
that, after Gonce passed the alcohol concentration test,
Gonce " was not required . . . to submit to a blood test
in order to avoid suspension." In an order dated April
14, 2015, the circuit court reversed the ALJ's decision.
April 24, 2015, the MVA filed in this Court a petition for a
writ of certiorari, raising the following issue:
Was a drunken or drugged driving suspect, who agreed to take
an alcohol concentration test, which produced a test result
of 0.00, subject to suspension under [TR] § 16-205.1,
when he thereafter refused to submit to a [law enforcement]
officer's request, based on reasonable grounds, to submit
to a blood test for drugs or controlled dangerous substances?
17, 2015, this Court granted the petition. See Motor Vehicle
Admin. v. Gonce, 443 Md. 234, 116 A.3d 474 (2015).
MVA's position is straightforward; it contends that TR
§ 16-205.1(b)(2) and (3) authorize law enforcement [446
Md. 109] officers with reasonable suspicion of impaired
driving to request both an alcohol concentration test and a
drug test. The MVA argues that, as used in TR §
16-205.1(b)(2) and (3), the word " test" means both
an alcohol concentration test and a drug test. The MVA notes
that TR § 16-205.1(a)(1)(iii)(3) defines the word "
test" as " [b]oth: A. A test of a person's
breath or a test of [one] specimen of a person's blood,
to determine alcohol concentration; and B. A test or tests of
[one] specimen of a person's blood to determine the drug
or controlled dangerous substance content of the person's
blood." (Paragraph breaks omitted). The MVA maintains
that TR § 16-205.1's legislative history
demonstrates that the General Assembly did not intend to
limit the meaning of the word " test" to only one
responds that the ALJ erred in concluding that he was subject
to an automatic license suspension for refusing to take the
drug test. Gonce contends that, as used in TR §
16-205.1(b)(2) and (3), the word " test" means a
single test. Under Gonce's interpretation of TR §
16-205.1(b)(2) and (3), a driver is subject to an automatic
license suspension for a refusal to take either an alcohol
concentration test or a drug test, but not for a refusal to
take a second test after the driver has already taken one
test. In support of this interpretation, Gonce relies on the
circumstance that, in TR § 16-205.1(b)(2) and (3), the
word " test" is singular, not plural.
court defers to an administrative law judge's finding of
fact where the record supports that finding of fact. See
Motor Vehicle Admin. v. Shea, 415 Md. 1, 14, 997 A.2d
768, 775-76 (2010) (" A reviewing court should defer to
the agency's fact-finding and drawing of inferences if
they are supported by the record." (Citation omitted)).
A court reviews with some deference an administrative law
judge's interpretation of a statute that the relevant
administrative agency administers. See Deering, 438
Md. at 622, 92 A.3d at 502 (" A reviewing court '. .
. determine[s] if the administrative decision is premised
upon an erroneous conclusion of law.' While [446 Md. 110]
this standard accords less deference to an agency's legal
conclusions than to its fact findings, a reviewing court
should give weight to the administrative agency's
interpretation and application of the statute that the agency
administers." (Quoting Shea, 415 Md. at 14-15,
997 A.2d at 775-76)).
interpreting a statute, a court first considers the
statute's language, which the court applies where the
statute's language " is unambiguous and clearly
consistent with the statute's apparent purpose[.]"
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