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:
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.
2. Limit § 16-205.1 to highways or private property used by the public in general
Transp. § 16-205.1(a)(2) refers to the implied consent to submit to a test applying when an officer has reasonable grounds to believe that a person who has been driving on a “highway or private property used by the public in general.” In some cases, the DR-15A is lacking any information whatsoever about the location of the alleged offense. In other cases, it is clear that the offense occurred on private property. The boilerplate language in the DR-15A states that the officer had “reasonable grounds to believe the driver described and named above had been driving or attempting to drive a motor vehicle on a highway or on any private property that is used by the public in general in this State[.]” However § 16-205.1 (f)(7) which lists the issues that may be raised at a license suspension hearing for failing or refusing a breath test does not list this as an issue that may be raised at the hearing.
In Motor Vehicle Admin. v. Loane, 420 Md. 211, 22 A.3d 833 (2011), the Court of Appeals declared that a person driving on “purely private” property was still subject to sanctions for failing or refusing a test because the location of the property within the state was not an issue allowed to be raised under § 16-205.1(f)(7) of the Transportation Article.
In Loane, the Court of Appeals arguably rewrote the law. Title 16 of the Transportation Article is the title that governs licensing of drivers. The implied consent law in is title 16, and its property limitations appear to be rationally related to the limitation on property where a driver’s license is required to drive a car. A driver does not need a license to drive a car on private property. For this apparent reason, a person’s license cannot be suspended for failing or refusing a test after driving on private property.
The legislature could remedy this problem by adding the language the officer swears to as an issue that can be raised at the MVA hearing under Transp. § 16-205.1(f)(7), that the driver was on “a highway or private property used by the public in general.”
3. Allow all drivers eligible for ignition interlock to waive a hearing
As § 16-205.1 is currently written, a driver who fails with a test over 0.15 or over or refuses a test, and who is otherwise qualified may waive the hearing and elect ignition interlock under § 16-205.1. However, there is a class of drivers who are eligible for the ignition interlock but cannot waive the hearing and elect interlock. Those are drivers who fail a breath test with a result of 0.08 or greater but less than 0.15 who have been suspended under § 16-205.1 within the preceding five years. Section 16-205.1(o)(1)(iii) provides that a person who “(iii) Took a test that indicated an alcohol concentration of at least 0.08 but less than 0.15 at the time of testing and who is ineligible for a modification of a suspension or issuance of a restrictive license under subsection (n) of this section” is eligible for an ignition interlock. However, § 16-205.1(b)(3)(vii) provides that the officer shall:
(vii) Inform the person that, if the person refuses a test or takes a test that indicates an alcohol concentration of 0.15 or more at the time of testing, the person may participate in the Ignition Interlock System Program under § 16-404.1 of this title instead of requesting a hearing under this paragraph, if the following conditions are met:
1. The person’s driver’s license is not currently suspended, revoked, canceled, or refused;
2. The person was not charged with a moving violation arising out of the same circumstances as an administrative offense under this section that involved a death of, or serious physical injury to, another person; and 3. Within the same time limits set forth in item (v) of this paragraph, the person:
A. Surrenders a valid Maryland driver’s license or signs a statement certifying that the driver’s license is no longer in the person’s possession; and B. Elects in writing to participate in the Ignition Interlock System Program for 1 year; . . .
The omission of the language from subsection (o) was apparently an oversight. The section as amended should provide:
(vii) Inform the person that, if the person refuses a test or, takes a test that indicates an alcohol concentration of 0.15 or more at the time of testing, or took a test that indicated an alcohol concentration of at least 0.08 but less than 0.15 at the time of testing and who is ineligible for a modification of a suspension or issuance of a restrictive license under subsection (n) of this section, the person may participate in the Ignition Interlock System Program under § 16-404.1 of this title instead of requesting a hearing under this paragraph, if the following conditions are met:
4. Require police to video all standardized field sobriety tests and breath tests
After Ferguson, the public and many police officers are firmly behind equipping officers with dashcams and bodycams. In Maryland use of dashcams has been inconsistent. Some police departments and vehicles have them, and some do not. In Wilkins, et. al. v. Maryland State Police, et. al., Civil Action No. CCB-93-468, and Maryland State Conference of NAACP Branches, et.al. v. Maryland State Police, et.al., Civil Action No. CCB-98-109, in the United States District Court for the District of Maryland, the parties entered into a consent decree intended to reduce incidents of racial profiling. The decree provided in part:
MSP has voluntarily installed equipment for the automatic video and audio recording of traffic stops on troopers’ patrol cars; currently all cars operating out of all barracks that patrol 1-95 are so equipped. It is MSP’s desire eventually to have all MSP patrol cars so equipped throughout the State of Maryland. When and to the extent that financing becomes available to equip other vehicles, MSP will so equip all vehicles. The equipment automatically begins taping upon activation of the car’s siren and/or emergency lights and continues until the car leaves the scene of the stop. The microphone is manually activated. Review of tapes available to date demonstrates that technical difficulties occur. Over the next year, MSP will work with the contractor from which the equipment was purchased to attempt to assure that these difficulties are resolved. MSP also will work with the contractor so that, if practicable, the trooper’s microphone is automatically activated whenever videotaping is occurring. In the meantime, MSP will continue to have a policy that requires that the trooper activate the microphone when the event is called in.
In actuality, since the decree was signed, some MSP vehicles and vehicles of other departments have videos that may be provided to defense counsel before the trial. Based on counsel’s experience, the majority of police vehicles used in DUI arrests do not have video.
South Carolina by law requires video in all DUI cases. The South Carolina statute provides:
SECTION 56 5 2953. Incident site and breath site videotaping; admissibility as evidence; purchase and maintenance of videotaping equipment.
(A) A person who violates Section 56 5 2930, 56 5 2933, or 56 5 2945 must have his conduct at the incident site and the breath test site videotaped.
(1) The videotaping at the incident site must:
(a) begin not later than the activation of the officer’s blue lights and conclude after the arrest of the person for a violation of Section 56 5 2930, 56 5 2933, or a probable cause determination that the person violated Section 56 5 2945; and
(b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.
(2) The videotaping at the breath site:
(a) must be completed within three hours of the person’s arrest for a violation of Section 56 5 2930, 56 5 2933, or 56 5 2945 or a probable cause determination that the person violated Section 56 5 2945, unless compliance is not possible because the person needs emergency medical treatment considered necessary by licensed medical personnel;
(b) must include the reading of Miranda rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test;
(c) must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;
(d) must also include the person’s conduct during the required twenty minute pre test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, the person’s conduct during the twenty minute pre test waiting period must be videotaped.
The videotapes of the incident site and of the breath test site are admissible pursuant to the South Carolina Rules of Evidence in a criminal, administrative, or civil proceeding by any party to the action.
(B) Nothing in this section may be construed as prohibiting the introduction of other evidence in the trial of a violation of Section 56 5 2930, 56 5 2933, or 56 5 2945. Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56 5 2930, 56 5 2933, or 56 5 2945 if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest, probable cause determination, or breath test device was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the person needed emergency medical treatment, or exigent circumstances existed. Further, in circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens’ arrests, where an arrest has been made and the videotaping equipment has not been activated by blue lights, the failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal. However, as soon as videotaping is practicable in these circumstances, videotaping must begin and conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances; nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer’s failure to produce the videotape.
(C) A videotape must not be disposed of in any manner except for its transfer to a master tape for consolidation purposes until the results of any legal proceeding in which it may be involved are finally determined.
(D) SLED is responsible for purchasing, maintaining, and supplying all necessary videotaping equipment for use at the breath test sites. SLED also is responsible for monitoring all breath test sites to ensure the proper maintenance of videotaping equipment. The Department of Public Safety is responsible for purchasing, maintaining, and supplying all videotaping equipment for use in all law enforcement vehicles used for traffic enforcement. The Department of Public Safety also is responsible for monitoring all law enforcement vehicles used for traffic enforcement to ensure proper maintenance of videotaping equipment.
(E) Beginning one month from the effective date of this act, all of the funds received in accordance with Section 14 1 208(C)(9) must be expended by SLED to equip all breath test sites with videotaping devices and supplies. Once all breath test sites have been equipped fully with videotaping devices and supplies, eighty seven and one half percent of the funds received in accordance with Section 14 1 208(C)(9) must be expended by the Department of Public Safety to purchase, maintain, and supply videotaping equipment for vehicles used for traffic enforcement. The remaining twelve and one half percent of the funds received in accordance with Section 14 1 208(C)(9) must be expended by SLED to purchase, maintain, and supply videotaping equipment for the breath test sites. Funds must be distributed by the State Treasurer to the Department of Public Safety and SLED on a monthly basis. The Department of Public Safety and SLED are authorized to carry forward any unexpended funds received in accordance with Section 14 1 208(C)(9) as of June thirtieth of each year and to expend these carried forward funds for the purchase, maintenance, and supply of videotaping equipment. The Department of Public Safety and SLED must report the revenue received under this section and the expenditures for which the revenue was used as required in the department’s and SLED’s annual appropriation request to the General Assembly.
(F) The Department of Public Safety and SLED must promulgate regulations necessary to implement the provisions of this section.
(G) The provisions contained in Section 56 5 2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement once the law enforcement vehicle is equipped with a videotaping device. The provisions contained in Section 56 5 2953(A), (B), and (C) take effect for a breath test site once the breath test site is equipped with a videotaping device.
5. Legislatively overrule MVA v. Deering and allow denial of counsel under Sites v. State to be raised as a defense at MVA hearings
In Sites v. State, 300 Md. 702, 481 A.2d 192 (1984), the Maryland Court of Appeals held that a detainee has a due process right to telephonically consult with counsel on request to decide whether to submit to the breath test so long as the consultation does not interfere with the State’s effort to timely and effiaciously obtain the breath test result. In Brosan v. Cochran, 307 Md. 662, 516 A.2d 970 (1986) the Court extended Sites to hold that the due process right recognized in Sites includes the right to an in-person consultation in the jail and the attorney may administer a private portable breath test. In McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989), the Court held that the Sites right did not include the right to be advised of the right to counsel, rather it was available only on request. In Najafi v. Motor Vehicle Admin., 418 Md. 164, 12 A.3d 1255 (2011) the Court of Appeals in dicta suggested that deprivation of counsel might not be a viable defense at an MVA hearing. In Deering v. Motor Vehicle Admin., 438 Md. 611, 92 A.3d 495 (2014), Najafi’s dicta was elevated to a holding.
There are many reasons why denial of counsel should be recognized as a defense at an MVA implied consent or administrative per se license suspension hearing. The considerations governing a 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, which cannot be remedied later, more severe, and the need for counsel greater. The limited due process right to counsel on request recognized by the Court of Appeals in Sites v. State, 300 Md. 702, 481 A.2d 192 (1984) and reaffirmed in Brosan v. Cochran, 307 Md. 662, 516 A.2d 970 (1986), was largely based upon the severe consequences of making a wrong choice, primarily losing the ability to maintain or obtain employment as a result of a suspension of a driver’s license. A person accused of drunk driving is more likely to suffer loss of employment as a result of an MVA hearing, than as a result of the court proceeding. The legislature recognized these problems when it amended Md. Code Ann., Transp. § 16-205.1 in 1989, and added the requirement that the officer “fully advise” the driver of the administrative sanctions for failing and refusing the test to the bill, in order to allow for due process defenses to be raised at the administrative hearing. The definition of the right recognized in Sites is that it not interfere with the State’s ability obtain a timely chemical test, thus public safety is not affected by recognizing the right at the MVA hearing. Since 1984, and until the Court of Appeals decided Najafi, deprivation of counsel was almost uniformly allowed as a defense at MVA hearings. No action should be required where counsel is found by the ALJ to have been denied because that finding negates the findings the driver was “fully advised” of the administrative penalties, that the driver validly refused or consented to take a test, and because the violation of due process requires it. If fundamental fairness requires allowing a phone call to counsel on request, then it is fundamentally unfair to deny the only meaningful remedy for its denial, and will be perceived by the public when they become aware of it (in most cases after it is denied to them or someone they know) as fundamentally unfair.
If you are facing criminal or traffic charges in Maryland state or
federal court, call Leonard R. Stamm of Goldstein
& Stamm, P.A. at 301-345-0122 for a free consultation.
Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
Author: West’s Maryland DUI Law