This case arises from an Administrative Law Judge’s (“ALJ”) suspension on November 17, 2009 of Respondent’s, Ronald Lipella, driver’s license for ninety days, pursuant to Maryland Code (1977, 2009 Repl.Vol.), Transportation Article, § 16-205.1(b)(l)(i)(2)(A) (“Implied Consent Statute”).
Upon judicial review of Lipella’s license suspension, the Circuit Court for Washington County concluded that Deputy Barnhart failed to indicate adequately on the Motor Vehicle Administration (“MVA”) Form DR-15A
FACTUAL AND LEGAL BACKGROUND
On August 29, 2009, at approximately 12:49 a.m., Deputy Barnhart of the Washington County Sheriffs Department observed a person, later identified as Lipella, traveling eastbound in a motor vehicle on Maryland Route 64 in Washington County.
Deputy Barnhart requested of Lipella that he submit to a preliminary breathalyzer test (“PBT”). Lipella acquiesced. The test yielded a BAC reading of 0.16. Barnhart placed Lipella under arrest for driving while intoxicated and transported him to the Washington County Sheriff’s
CERTIFICATION OF POLICE OFFICER
I, the undersigned officer, had reasonable grounds to believe that 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 while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely while impaired by a controlled dangerous substance, in violation of an alcohol restriction of Section 16-813 of the Maryland Vehicle Law.
REASONABLE GROUNDS: VEHICLE WAS] STOPPED ON REASONABLE GROUNDS. UPON CONTACT WITH DRIVER I DETECTED A STRONG ODOR OF AN ALC[OHOLIC] BEVIERAGE] AND HE HAD SLURRED SPEECH. DRIVER FAILED SFST. PBT — .16 [.]
Lipella requested timely an administrative hearing regarding the ninety-day suspension of his license. At the hearing,
The MVA retorted that, based on this Court’s interpretation of the Implied Consent Statute in Motor Vehicle Administration v. Illiano,
As the MVA’s argument continued, the ALJ should conclude that the MVA is required only to show, in making a prima facie case, that the officer had reasonable grounds to request the driver to take the official breathalyzer test. To this effect, the MVA relied upon Motor Vehicle Administration v. Shea,
The ALJ suspended Lipella’s license for ninety days because the DR-15A describing Deputy Barnhart’s basis for suspecting intoxicated driving, and the official BAC test result administered at the Washington County Sheriffs Office, were sufficient to constitute a prima facie case. Although he admitted the Alcohol Influence Report into evidence, the ALJ felt he did not need to rely on the report as corroborating evidence because the MVA presented a prima facie case otherwise, using the DR-15A and the BAC results.
Additionally, although Lipella suggested tangentially a possible defense of bad faith on the part of the police officer, he adduced no evidence to call the police officer’s statements into question. This scenario is illustrated by the following exchange between the ALJ and Lipella’s attorney:
ALJ:
In the absence of bad faith, we don’t even get into the stop. So I get Counsel’s position, but I still think at this point, it’s still a prima facie case, but it could be refuted by evidence, (emphasis added)
ATTORNEY:
Well, that’s what the problem is. We don’t know what to refute, because he didn’t tell us.
ALJ:
Well, I can look at the corroboration to find out.[ 8 ]
ATTORNEY:
Well—
ALJ:
But it’s still a prima facie case and in the absence of bad faith — and I can’t make a presumption of bad faith — I have to make a presumption of good faith because the officer said he had reasonable grounds. So, I’ll just go ahead and admit them.[9 ]
ATTORNEY:
Ok.
In addition to not subpoenaing the Deputy to testify, Lipella did not testify on his own behalf at the hearing. Based on the admitted evidence, the ALJ held that the officer’s stop was made in good faith and Lipella’s license should be suspended for ninety days.
Lipella filed a petition for judicial review with the Circuit Court for Washington County, pursuant to Maryland Code (1984, 2009 Repl.Vol.), State Government Article, § 10-222. He renewed his assertion that the DR-15A, as completed by Deputy Barnhart, was overly vague and insufficient to constitute a prima facie case by the MVA. Additionally, due to the MVA’s lack of evidence as to the grounds for the traffic stop, he asserted that he was deprived of the opportunity to raise and prove the defense that the stop was made in bad faith. Lipella also argued that the Alcohol Influence Report should not have been admitted into evidence in the administrative hearing because it was not a sworn statement and, if excluded, the MVA had no evidence to corroborate or supplement the insufficient DR-15A.
The MVA riposted that, under the Maryland Code (1984, 2009 RepLVol.), State Government Article, § 10-213(b), the ALJ may consider any probative evidence, as long it would be accepted commonly by reasonable and prudent individuals in the conduct of their affairs. See Md.Code Regs. 11.11.02.10(A) (2012). Furthermore, the MVA argued that § 16-205.1 enumerates the only permissible issues that may be raised at license suspension administrative hearings, and Lipella’s “insufficient grounds for a stop” argument was not one of them. Specifically, the MVA maintained that this Court held in Motor Vehicle Administration v. Richards,
The Circuit Court concluded that, in order to enable Lipella to elect whether to raise a bad faith defense, the officer must list on the DR-15A specifically what he contended were the reasonable grounds for the underlying traffic stop. The judge held that, without adducing the specific reasons for the stop, the MVA did not make a prima facie case on this record. The Circuit Court explained why it was reversing the ALJ’s decision and remanding the matter:
[TJhere should be the reasonable grounds for the stop were that x, y and z and Mr. Lipella would then have the opportunity to say, ‘No, that wasn’t true.’
And therefore I do find that the findings of the Administrative Law Judge is unsupported by competent, material and substantial evidence in light of the entire record submitted. And also that it was arbitrary and capricious for this sanction to be imposed based on the reasonable ground being reasonable grounds.[10 ]
The MVA filed timely a petition for a writ of certiorari with this Court, under Maryland Code (1973, 2006 RepLVol.), Courts and Judicial Proceedings Article, § 12-305, which allows for a direct appeal from the Circuit Court judgment regarding administrative hearings held under Title 16 of the Transportation Article. We granted the petition, Motor Vehicle Administration v. Lipella,
In determining the sufficiency of an officer’s sworn certification of grounds to request an alcohol concentration test under § 16.205.1, as recorded on the DR-15A, did the ALJ err in determining that the specific reasons for the underlying traffic stop need not be recorded under the section labeled “REASONABLE GROUNDS?”
We shall reverse the judgment of the Circuit Court and remand with directions to affirm the decision of the ALJ.
STANDARD OF REVIEW
In judicial review of a state administrative agency (such as the ALJ decision here, where he acted on behalf of the MVA by express delegation), we review the action of the agency directly, rather than the judgment of the intervening reviewing court. See Consumer Prot. Div. v. Morgan,
(1) remand the case for further proceedings;
(2) affirm the final decision; or
(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision:
(i) is unconstitutional;
(ii) exceeds the statutory authority or jurisdiction of the decision maker;
(iii) results from an unlawful procedure;
(iv) is affected by any other error of law;
(v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or
(vi) is arbitrary and capricious.
In United Parcel Service, Inc. v. People’s Counsel for Baltimore County,
DISCUSSION
In reviewing the ALJ’s decision, we consider only the evidence that was before the ALJ at the hearing. We will review first the evidentiary standards for administrative hearings; evaluate the plain language requirements of § 16-205.1 and how they relate to the DR-15A; and, finally review the sufficiency of the evidence with regards to the ALJ’s ruling on Lipella’s contemplated bad faith defense and the suspension of his license.
As detailed in Code of Maryland Regulations (COMAR) § 11.11.02.10 (2012),
An ALJ, presiding over an administrative hearing of a driver’s license suspension matter, may consider also evidence that might not be admissible in a court proceeding. Motor Vehicle Admin. v. Weller,
In Motor Vehicle Administration v. McDorman,
In the present case, the sworn DR-15A and the formal toxicology report of a BAC reading of 0.16 from the official breathalyzer test are prima facie case evidence, in and of themselves, proving a violation of § 16-205.1. Accord Motor Vehicle Admin. v. Lytle,
We examined, in detail, the plain meaning of § 16-205.1 in Illiano,
In Illiano, the officer did not stop Illiano while she was driving; on the contrary, Illiano brought her vehicle to rest directly behind the officer’s patrol car on an active Maryland highway.
This Court approved various officer-driver encounters, ending in suspensions of persons’ driver’s licenses for intoxicated driving, even though they did not begin because of suspicion of intoxicated driving. For example, we affirmed a suspension that began when an officer approached a driver on the street, known as a “consensual encounter.” See Ferris v. State,
If we were to accept Lipella’s argument that the officer must document why the circumstances leading to the underlying traffic stop lead the officer to believe the driver was intoxicated, it would be difficult,
In Richards, a Maryland State Police Trooper stopped Richards in his vehicle on the basis that, because there had been a rash of criminal activity in the area, the trooper determined that Richards’s actions were suspicious,
Lipella attempts (unpersuasively) to distinguish Illiano and Richards from the present case. Illiano provides an example of scenarios when there need not be a traffic stop preceding an officer developing reasonable suspicions of intoxication.
Applying in Richards the distinction between the basis for the underlying stop and the development of suspicions of intoxication, we concluded that the reasons for the stop do not bear necessarily on the suspicion of intoxication determination, as long as the stop was executed in good faith by the officer.
The DR-15A, which is based on § 16-205.1, compels enumeration by the officer only of the indications of the believed intoxication of the driver and does not compel attention to the reasons for the officer approaching the driver in the first instance if not believed to be indicative of the driver’s intoxication. For example, under the section of the form labeled “ORDER OF SUSPENSION-ISSUE DATE (MONTH/DATE/YEAR)” the only preprinted boxes able to be checked are those regarding driving while intoxicated; there is no comparable section regarding the initial stop. Additionally, in regard to the specific section of the form most relevant to the present case, “CERTIFICATION OF POLICE OFFICER,” the instructions do not direct the police officer to indicate why he or she stopped the driver in the first place, only what the police officer’s reasonable grounds were to believe the driver was under the influence:
I, the undersigned officer, had reasonable grounds to believe that the driver described and named above had been driving or attempting to drive a motor vehicle on the highway or any private property that is used by the public in general in this State while under the influence of alcohol, while impaired by alcohol ... (emphasis added)
Based on the requirements of § 16-205.1, Barnhart’s insertion of a notation on the form that “vehicle] [was] stopped on reasonable grounds” is superfluous to his later reasons to suspect intoxication, and if stricken from the DR-15A, the reasons for harboring suspicion of intoxicated driving would stand still because the Deputy detailed the smell of alcohol, slurred speech, and failed SFSTs on the DR-15A, which led to confirmatory 0.16 BAC readings on the two mechanical tests.
An accused driver’s right to argue that the officer acted in bad faith in making the initial stop or collecting the evidence of intoxication is acknowledged. In Shea,
For example, Illiano attempted to mount a bad faith argument by accusing the officer of fabricating the reasons for the initial traffic stop and the events that occurred after their first contact. Illiano,
We turn now to whether there is substantial evidence in the administrative record to support the ALJ’s suspension of Lipella’s license. Whether the ALJ had enough evidence to suspend Lipella’s license is determined by examining first the evidence that led the officer to request a breathalyzer test. See Shea,
The ALJ credited that, after pulling over Lipella in his car, Deputy Barnhart detected a strong odor of alcohol and slurred speech emanating from Lipella. These indications were recorded on the DR-15A, which was enough to support reasonable suspicion to require Lipella to undertake the SFSTs. Lipella’s failure in performing the SFSTs was recorded on the DR-15A. These factors led Deputy Barnhart to ask Lipella to submit to a field PBT, as authorized by § 16-205.1, resulting in a BAC of 0.16 reading. The 0.16 BAC result provided Deputy Barnhart with reasonable suspicion to transport Lipella to the Washington County Sheriffs Office for an official breathalyzer test. After reading the required DR-15, Advice of Rights, to Lipella, a toxicologist administered the official breathalyzer test, which resulted in a 0.16 BAC reading. The ALJ determined that the intoxication indications-slurred speech, odor of alcohol, failed SFSTs, and a PBT result of 0.16, as articulated on the DR-15A, along with the Result of Test for Alcohol Concentration Form, signed by the toxicologist-were sufficient for the MVA to make its prima facie case.
We conclude that the ALJ’s findings and conclusions that Deputy Barnhart possessed reasonable grounds to request Lipella to submit to a formal breathalyzer test at the Washington County Sheriffs Office were supported by evidence in the record as a whole, and that that evidence demonstrated Lipella’s violation of § 16-205.1(b)(l)(i)(2). The ALJ’s decision to affirm suspension of Lipella’s driver’s license for ninety days per § 16-205.1(b)(l)(i)(2)(A) was correct and supported by substantial evidence. The Circuit Court erred in reversing the ALJ’s suspension of Lipella’s license.
JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE DECISION OF THE ADMINISTRATIVE LAW JUDGE. COSTS TO BE PAID BY RESPONDENT.
Notes
. Unless otherwise provided, all statutory references are to Maryland Code (1977, 2009 Repl.Vol.) of the Transportation Article. The subsections of the Implied Consent Statute (§ 16-205.1) in this case have not been changed since the time of the events in question.
. The Motor Vehicle Administration ("MVA”) Form DR-15A ("Officer's Certification and Order of Suspension”) contains a section for the officer to indicate why he suspected the driver was under the influence. The MVA Form DR-15A will be discussed in detail, infra.
. The facts presented here were gathered from the Alcohol Influence Report, which is the police officer’s narrative of the entire incident — the underlying traffic violation, the officer’s suspicions of intoxication, the results of the standard field sobriety tests, and the events at the police station. This document was admitted into evidence at the MVA hearing, although not relied upon explicitly by the Administrative Law Judge ("ALJ”) in explaining why he found that the MVA presented a prima facie case. The admissibility of this document will be discussed further, infra.
. The three standard field sobriety tests (SFSTs) performed were: the horizontal gaze nystagmus test, which evaluates a driver’s ability to follow a horizontally moving point of reference (if intoxicated, the eyes present a jerky movement); the heel-to-toe walk test; and the one leg stand test.
. Deputy Barnhart did not testily before the ALJ. The case was submitted by the MVA on its papers. Lipella did not seek an administrative subpoena for Barnhart to testify.
. Code of Maryland Regulations 11.11.02.10(H) provides:
Notwithstanding the fact that evidence may have been seized or obtained in violation of a licensee’s Fourth Amendment constitutional rights, the evidence is admissible unless the:
(1) Police officer, in obtaining or seizing the evidence, acted in bad faith and not as a reasonable officer should act in similar circumstances ....
. Section 16-205.l(f)(7)(i) enumerates seven issues that may be considered by the ALJ, whether: (1) the officer had reasonable grounds to believe the person was driving or attempting to drive impaired by alcohol or drugs; (2) there was evidence of the person’s use of alcohol or drugs; (3) the officer requested the test only after the person was fully advised of the administrative sanctions as provided in (b)(2) of the Implied Consent Statute as listed on the DR-15 Advice of Rights form; (4) the person refused the test; (5) the person had a test result of 0.08 or more; (6) the person had a test result of 0.15 or more; and, (7) the person held a commercial driver’s license ("CDL”) or was driving a commercial vehicle, if the hearing involved disqualification of a CDL. See § 16-205.1(f)(7)(i).
. This is a reference to the Alcohol Influence Report, which read:
I [Deputy Barnhart] observed a grey passenger car traveling eastbound in front of me that appeared to be speeding. The vehicle veered sharply across the white line and onto the shoulder, and then returned back to the traffic lane. I paced the vehicle eastbound on Rt.64 from the intersection of While Hall road to the intersection of Twin Springs Drive in excess of 65 mph. While I was pacing the vehicle again veered sharply over the white line and then quickly returned to the lane of travel.
. Here, the ALJ referred to the documents he intended to admit into evidence: a copy of the hearing notice, transmittal form of delegation of authority to the ALJ from the MVA and certification of the records submitted by the MVA, Officer's Certification and Order of Suspension ("DR-15A''), Alcohol Influence Report, Advice of Rights (‘'DR-15''), Alcohol Test Result Certification ("MSP 33”), Intox ECIR (the breathalyzer equipment) print-out, and Lipella's prior driving record.
. Here the judge is referring to the DR-15A section labeled REASONABLE GROUNDS, and that the Deputy failed to detail why he stopped Lipella's vehicle and rather only wrote "VEH[ICLE] [WAS] STOPPED ON REASONABLE GROUNDSf.]”
. Code of Maryland Regulations 11.11.02.10(A)-(C) (2012), reads, in pertinent part:
A. Evidence that possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs may be admitted at a hearing.
B. Incompetent, irrelevant, immaterial, and unduly repetitious evidence may be excluded.
C. The ALJ or other trier of fact is not bound by the technical rules of evidence.
. Thomas attempted to argue that because he was never offered a breathalyzer test he could not be cited for refusing the test. The crux of his argument was that the DR-15A conflicted with the Alcohol Influence Report. Thomas v. Motor Vehicle Admin.,
. Section 16-205.1 states, in relevant part:
(a)(2) Any 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, subject to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judicial Proceedings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while under the influence of alcohol, while impaired by alcohol, while so far impaired by any drug, any combination of drugs, or a combination of one or more drugs and alcohol that the person could not drive a vehicle safely, while impaired by a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title.
(a)(2)(b)(l)(i)(2). For a test result indicating an alcohol concentration of 0.15 or more at the time of testing:
(A) For a first offense, suspend the driver's license for 90 days; ... (a)(2)(b)(2) Except as provided in subsection (c) of this section, if a police officer stops or detains any person who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol, while impaired by alcohol ... the police officer shall:
(i) Detain the person;
(ii) Request that the person permit a test to be taken
(iii) Advise the person of the administrative sanctions that shall be imposed for test results indicating an alcohol concentration of at least 0.08 but less than 0.15 at the time of testing;
(iv) Advise the person of the administrative sanctions, including ineligibility for modification of a suspension or issuance or a restrictive license unless the person participates in the Ignition Interlock System Program under § 4.1 of this title, that shall be imposed ... for test results indicating an alcohol concentration of 0.15 or more at the time of testing....
. Richards slowed his track down in the middle of a road and then drove to the end of a dead-end street. Motor Vehicle Admin. v. Richards,