Articles Posted in MVA

On March 4, 2015, Leonard Stamm testified in opposition to House Bill 532 which would require officers to tell suspected drunk drivers in a fatal or life threatening injury crash that they are required to submit to an alcohol test. Here is the written version of his testimony:

My name is Leonard Stamm. I have been in private practice defending persons accused of drunk driving and other crimes for over 30 years. I am currently Assistant Dean of The National College for DUI Defense, a nationwide organization with over 1300 lawyer members. I am a former president of the Maryland Criminal Defense Attorneys’ Association. In 2014, I had the privilege of co-authoring an amicus brief filed by the National Association of Criminal Defense Lawyers and The National College for DUI Defense in the Supreme Court case of Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) . The Supreme Court held that a drunk driving arrest does not automatically create exigent circumstances that would relieve the police of their obligation to first seek a search warrant based on probable cause before compelling a driver to submit to a blood test.

For cases where the arrest occurred before April 17, 2014, the day that McNeely was decided, many courts have upheld admission of tests on the ground that where police objectively reasonably relied on a statue not yet held to be unconstitutional, that it would be on it inappropriate to apply the exclusionary rule and suppress the blood test. However, for cases where the arrest occurs after April 17, 2014, that claim of objectively reasonable reliance on an unconstitutional statute is less likely to prevail. The end result of passing the proposed amendment to § 16-205.1 could ironically be that tests showing the driver to be impaired by alcohol and/or drugs would likely be suppressed and withheld from the fact-finder.
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1. Change “reasonable grounds” in § 16-205.1 to “probable cause”

The Fourth Amendment requires articulable reasonable suspicion to stop a vehicle, Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) and probable cause to effect an arrest. Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985). However, the Court of Appeals has made it clear that the Fourth Amendment does not apply in MVA hearings. Motor Vehicle Admin. v. Richards, 356 Md. 356, 739 A.2d 58 (1999).

The officer is not required to recite the basis for the stop on the sworn statement submitted to the MVA in support of a suspension. Motor Vehicle Admin. v. Lipella, 427 Md. 455, 48 A.3d 803 (2012). The driver may only prevail on the ground of a bad stop if the driver shows the officer acted in bad faith in effecting the stop. Id.; COMAR 11.11.02.10(H).

Transp. § 16-205.1 requires an officer to detain the driver and request a test if the officer has “reasonable grounds” to believe the driver is driving while impaired. In Motor Vehicle Admin. v. Shepard, 399 Md. 241, 923 A.2d 100 (2007) the Court of Appeals construed “reasonable grounds” to be the equivalent of articulable reasonable suspicion to believe the driver is impaired. Thus while the Fourth Amendment requires the officer to have probable cause before making an arrest, § 16-205.1 requires the officer to “detain,” i.e., effectively arrest the driver, with articulable reasonable suspicion. Thus the officer is given conflicting instructions, to not make and to make an arrest at the same time, if there is only articulable reasonable suspicion.

Cases after Shepard have considered various factual scenarios, each sustaining suspensions with less evidence than the previous case, lowering the evidence required to sustain a finding of “reasonable grounds” and weakening the protection against unreasonable detention encompassed within the Fourth Amendment. E.g., Motor Vehicle Admin. v. Shea, 415 Md. 1, 997 A.2d 768 (2010)(seatbelt stop, moderate odor, performed standardized field sobriety tests, but no results given); Motor Vehicle Admin. v. Sanner, 434 Md. 20, 73 A.3d 214 (2013)(strong odor of alcohol coupled with having been involved in an accident). The most recent case from the Court of Appeals on this issue, Motor Vehicle Admin. v. Spies, 436 Md. 363, 82 A.3d 179 (2013), held that if the officer claims to detect a moderate odor of an alcohol beverage, reasonable grounds exist.

The holding in Spies is contrary to holdings from other states. For example, see Saucier v. State, 869 P.2d 483 (Alaska Ct. App. 1994) (slight weaving across line, “normal” odor of alcohol beverage, admission of couple drinks, and refusal of field tests); Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992) (summary judgment affirmed in suit against officer for releasing defendant who subsequently killed two people); State v. Kliphouse, 771 So.2d 16 (Fla. App. 2000) (unconscious motorcyclist who did not cause accident had odor of alcohol beverage); State v. Taylor, 444 N.E.2d 481 (Oh. App. 1981) (speeding and odor of alcohol beverage); People v. Royball, 655 P.2d 410 (Colo. 1982) (odor of alcohol alone, accident without fault established); but see, State v. Gillenwater, 980 P.2d 318 (Wash. App. 1999) (fatal accident, driver not at fault, odor of alcoholic beverage on both motorist and deceased passenger, three opened beer cans).

The Ohio Court of Appeals, in State v. Taylor, 444 N.E.2d 481 (Ohio Ct. App. 1981) stated:

The mere odor of alcohol about a driver’s person, not even characterized by such customary adjectives as “pervasive” or “strong,” may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. For better or worse, the law prohibits drunken driving, not driving after a drink.

Id. at 482.

In City of Hutchinson v. Davenport, 54 P.3d 532 (Kan. App. 2002), the Kansas Court of Appeals held that the odor of an alcoholic beverage on the defendant’s breath, without any other evidence was insufficient to support the stop of the defendant’s vehicle. In that case the defendant drove to a local jail to secure bond for a friend who had been arrested. When he left a police officer, who detected the odor of an alcohol beverage on the defendant’s breath, advised him not to drive and the defendant agreed. Not long afterward, the same officer saw the defendant driving his vehicle and stopped him.

The court stated:

Even with the lesser requirements of the reasonable suspicion standard, the trial court properly determined that there were no articulable facts which create a suspicion that Davenport was driving while under the influence or was involved in any other criminal activity. Even if we combine the knowledge of Henderson and Miller, the only facts suggestive of unusual conduct are that Davenport had alcohol on his breath and that he stated he was walking. Neither of these facts by themselves or together create a reasonable suspicion that justified Miller stopping Davenport in the absence of some indication that he was intoxicated and too impaired to drive.
The City cites many cases to bolster its argument that the stop was proper. In each situation where the court found the stop to be proper, however, there were some facts which indicated that the defendant had engaged in some illegal activity prior to being stopped. Here, no such facts exist. Alcohol on one’s breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking.

Davenport, 54 P.3d at 535.

A chief danger of the lower standard and eased application of that standard is that a number of drivers who are not impaired will be stopped and detained, and as a result of reasons that may be consistent with innocence will refuse to submit to a breath test and will face license suspension and/or ignition interlock. In counsel’s experience, people refuse for a myriad of reasons, including, but not limited to, misunderstanding the advice of sanctions provided by the police or being improperly induced by the officer to refuse the test. This was recognized by the Maryland State Bar Association Criminal Pattern Jury Instruction Committee in the jury instruction for refusal which states:

MPJI-Cr 4:10.5
Driving Under the Influence of Alcohol and Driving While Impaired by Alcohol — Effect of Refusal to Submit to Blood or Breath Test

You have heard evidence that the defendant refused to submit to a test to determine [his] [her] [alcohol level] [the presence of drugs or a controlled dangerous substance]. You must first decide whether the defendant refused to submit to a test. If you find that the defendant refused to submit to a test, you must then decide whether this refusal is evidence of guilt. Refusal to submit to a test may be based on reasons that are consistent with innocence or other reasons that are consistent with guilt. In order to decide whether the defendant refused to submit to a test and what, if any, weight to give the refusal, you should consider all of the evidence in the case.

If § 16-205.1 were amended to replace the phrase “reasonable grounds” with “probable cause” in every location where it appears, the obligations imposed on police officers and protections available to drivers would be the same as is provided by the Fourth Amendment. Additionally, the danger that innocent drivers will be swept up in the broad drunk driving dragnet would be reduced.
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The Court of Appeals announced its decision today in Deering v. MVA. When a driver is arrested for DUI and asked to take a breath or blood test in Maryland, and the driver’s reasonable request to consult with a lawyer before deciding is denied, the driver may not argue at the driver license suspension hearing that the denial of counsel requires not suspending the driver’s license.

The Court noted that the cases relied upon by the Court of Appeals in its 1984 decision, Sites v. State, which recognized the right to consult with counsel under the federal Constitution’s 14th Amendment’s due process clause, have mainly lost their authority. However, Sites also rested on the state due process clause. The Court said:

Although Sites rested its holding on both the Fourteenth Amendment of the federal Constitution and Article 24 of the Maryland Declaration of Rights, its analysis focused almost entirely on cases construing the federal Constitution. Given the scarce support for that analysis of the due process clause of the federal Constitution, the Sites Court’s rationale rests on a precarious footing. Of course, because the Sites decision was also based on Article 24, it is conceivable that this Court could hold that the State constitution confers such a right, even if the federal Constitution does not. Cf. DeWolfe v. Richmond, 434 Md. 444, 76 A.3d 1019 (2013) (holding that an indigent defendant in a criminal prosecution is entitled, under Article 24 of the Maryland Declaration of Rights, to State-furnished counsel at an initial bail hearing before a District Court commissioner without deciding whether that right also emanates from the due process clause of the Fourteenth Amendment). In any event, we need not decide the continuing vitality of Sites to decide this case.

Even if Sites remains good law under a State constitutional theory, the ultimate question before us is whether the violation of any such right affects the imposition of an administrative sanction under TR §16-205.1.

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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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