*1 effect on Petitioner’s the adverse caused continuance —that judgment trial court’s Consequently, representation. to a new trial. is entitled reversed Petitioner APPEALS THE OF SPECIAL OF COURT JUDGMENT THAT COURT REMANDED TO CASE REVERSED. THE JUDGMENT DIRECTIONS TO REVERSE WITH COUN- FOR MONTGOMERY COURT OF THE CIRCUIT THE CIRCUIT THE CASE TO TY AND TO REMAND COUNTY TRIAL. MONTGOMERY FOR A NEW COURT THE COURT AND PAY THE IN THIS COURT TO COSTS APPEALS. OF SPECIAL A.2d 100 ADMINISTRATION
MOTOR VEHICLE v. H. SHEPARD. Scott Sept. No. Term 2006. Maryland. Appeals
Court of May 2007. *2 Gansler, F. Lebowitz, Atty. (Douglas J. Asst. Gen. Dore Gen., II, brief), Gen., Cain, Atty. Glen Atty. Robert C. Asst. Burnie, for petitioner. LLC, (John Associates, F.X.
John F.X. Costello Costello & *3 brief), respondent. Largo, on for HARRELL, RAKER, CATHELL, before
Argued ELDRIDGE, (Retired, GREENE, BATTAGLIA, C. JOHN (Retired, WILNER, M. ALAN specially assigned) specially assigned), JJ.
RAKER, J. pursu- of a license suspension case involves the driver’s This (1977, Vol., Rep. Supp.) 2006 16-205.1 ant to Md.Code Respondent’s Article.1 license was sus- Transportation test to take an alcohol concentration pended after he refused challenged a for following stop speeding. Respondent traffic Hearings. of Administrative suspension before the Office (“ALJ”) to respondent found Judge The Administrative Law for Montgom- in violation of 16-205.1. The Circuit Court be ruling. Because we find that ery County vacated evidence and administrative was based on substantial ruling noted, statutory subsequent all references herein 1. Unless otherwise Vol., (1977, Rep. Supp.) to of the Trans- shall be Md.Code portation Article. rendered on the basis of an erroneous conclusion of law, we shall reverse.
I. Transportation Article, Section 16-205.1 of the commonly Maryland’s Implied Law, known as Consent provides the statutory suspending structure for license a driver who testing refuses to to submit alcohol concentration. Section 16-205.1(a)(2) states as follows:
“Any person who or attempts drives to a drive motor vehicle a highway any private or on property that is used public consented, in this to general State deemed have subject provisions 10-309, §§ to the through 10-302 inclusive, Article, of the Courts and Judicial Proceedings take a test if the person should be on suspicion detained driving or attempting drive while the influence under 205.1(b)(2) alcohol ...” Section a requires police officer 16— has who person believe that a has been to drive attempting a motor vehicle while under the influence of alcohol to: “(i) person; Detain the
(ii) Request person permit taken; be (iii) person Advise the of the administrative sanctions that shall imposed be for test results indicating alcohol con- at centration of least 0.08 but less than 0.15 the time of testing;
(iv) person sanctions, Advise the of the administrative in- cluding ineligibility for modification of suspension or issu- *4 of a ance restrictive license person participates unless the Ignition System Interlock Program § under 16-404.1 of title, this imposed that shall be refusal to the test take and for test results an indicating alcohol concentration of 0.15 or at more the time of testing; and (iv) person Advise the of the additional criminal penalties (x) may imposed § of be under 27-101 this article on § conviction of a violation of 21-902 of this article if the out of the arising a to take test refused person knowingly violation.” as the circumstances same test, a a driver to take implied consent Notwithstanding testing to to determine submit to compelled not generally 16-205.1(b)(l). 16- Section concentration. alcohol a respond to 205.1(b)(3), a officer however, police directs driver’s person’s by seizing a refusal to take test driver’s a issuing suspension, order of license, temporary a serving of his or the driver license, informing and driver’s temporary sanctions. administrative hearing possible a and her right 16-205.1(f)(8)(i) Vehicle Admin- the Motor requires Section (“MVA”) if license an individual’s driver’s suspend istration hearing. an findings certain administrative the ALJ makes The section states as follows: suspend shall the Administration hearing,
“After a person charged to drive privilege license or driver’s (b) (c) if: or of this section under subsection person or detained police stopped officer who 1. The person believe had reasonable of alco- influence while under the attempting or to drive alcohol, impaired by far hol, while so impaired by while or a combination any drugs, any drug, combination person could or alcohol that the drugs one more and by a controlled impaired while safely, a vehicle drive restriction, substance, alcohol in violation dangerous title; of this in violation of 16-813 person evidence the use 2. There was drugs, combination of combina- alcohol, any any drug, alcohol, or a controlled drugs more and tion of one or substance; dangerous after the requested person test The
3. (b)(2) of advised, required under subsection fully section, that shall be sanctions of the administrative imposed; B. test; or A test A. to take the person
4. refused taken alcohol concentration was to determine *5 result indicated alcohol concentration of 0.08 or more at time testing.” of aggrieved
An license has suspended may driver whose been judicial seek of review the administrative a decision before § circuit court of 16-205.1(j). this State.
II. Respondent’s license suspended pursuant 16- 205.1(f)(8)(i)following a hearing before the Office of Adminis- Hearings. trative At the hearing, the ALJ issued an opinion and order based a form DR-15A2 filed the arresting the testimony respondent. and The DR-15A indicat- a.m., 7, 2005, on ed at 1:03 October City Gaithersburg respondent Police Finch saw driving Officer in excess of 132 hour, miles per vehicle, that he stopped there was a strong breath, respondent’s odor alcohol on respondent had blood- shot watery eyes, respondent and a preliminary blew breath respondent test of O. drinking and admitted beers. two evidence, Based on this the ALJ following findings made the of facts. 7, 2005, a.m.,
On at October 1:03 Finch Officer observed a Porsche Boxster a traveling speed excess 132 miles per hour on Route 1-270 in Montgomery County, Maryland. a stop, officer initiated traffic at which time he identified respondent as the driver of the Respondent Porsche. had a strong breath, odor of alcohol his as well as watery and eyes. bloodshot Finch respondent Officer asked if he had drinking, respondent been and stated he had two beers earlier that evening. After the officer prelimi- administered a nary test, respondent breath a performed standard field sobri- ety test, test, gaze which included horizontal nystagmus test, walk and turn and a one leg stand test. Finch Officer DR-15A, 2. Form "Officer's Suspension,” Certification and Order of general contains factual information about the driver the incident giving suspension rise to a license under 16-205.1. Section 16- 205.1(b)(3) requires personally that the officer serve order of sus- pension upon if person the driver refuses take chemical or if the test higher. results an alcohol concentration 0.08 alcohol, the influence under respondent arrested the field failed respondent report indicated his sobriety test. *6 station, that requested Finch Officer police
Back his alcohol to determine breathalyzer a take respondent of respondent admin- The advised level. officer concentration for refus- would face either criminal sanctions he istrative and where submitting testing to testing to or ing to submit legal above the level an alcohol concentration results showed DR-15,3 acknowledging form thus signed a Respondent limit. he would of sanctions possible him the the officer advised that the breath refused Respondent test. refusing for face of the statute, on behalf acting and Pursuant to the test. of suspension respon- MVA, an order Officer Finch served dent’s driver’s license. that hearing, the ALJ determined the administrative
At respondent to grounds had reasonable believe Officer Finch night alcohol on the the influence of driving under had been orally ruled as follows: The ALJ question. presented the testimony evidence and
“I’ve considered the case, the evidence by preponderance I find in this and stopped who The officer following facts. to grounds Shepard, did have reasonable you, Mr. detained attempting to a motor driving or drive you that were believe he because when the influence of alcohol vehicle while under hour, per were 132 miles upon you speeding came you, first of the use alcohol based there was further evidence and hours, had an early morning you it was the fact that upon alcohol, bloodshot, eyes, the watery stan- you had odor unsatisfactorily, sobriety performed tests were dard field drinking. you and admitted DR-15, for Rights Penalties and Administrative
3. Form "Advice Statement,” is derived from 16- to Test Submit to a Chemical Refusal 205.1(b) Maryland’s Implied warnings required under contains Consent Law. The pretty issue was alcohol in this case clearly. And in any event the issue not probable cause. That is the issue in a criminal proceeding. The issue in this reason- case is grounds. able grounds The reasonable as stated officer much are more than sufficient. He has stated more than sufficient that take request you a test. doing That’s he was here. The what standard field contrary tests are identified to counsel’s statement. turn, gaze stand, Horizontal nystagmus, leg walk one he says that those tests were done. He said based results arrested. There is also that I reasonable inference am going draw that based language tests done why were his satisfaction which is he arrested you driving while under the influence of alcohol. did fully you advise sanctions be imposed, requested you take a test you which refused. Therefore, you are in violation of 16-205.1” *7 The ALJ findings law, filed written of fact of and conclusions in which she stated 16-205.1 was upon violated based the “early hours, following: alcohol, bloodshot, A.M. odor watery eyes, sobriety [standard SFSTS field performed unsatis- tests] factorily, admitted drinking.” imposed year ALJ a one suspension license, of respondent’s driver’s stayed the condition that he in participate Ignition the Interlock Program a period for of eighteen months.
Respondent petition judicial filed a review the Circuit Court for Montgomery County. Court, Before the Circuit argued respondent as follows: operative
“[T]he which allegations upon the administrative law judge premised were, his decision ‘standard field sobri- ety tests, turn, the nystagmus gaze, walk leg and one stand done, results, were based on arrested.’ We argued before judge, here, administrative law and we argue that those results, test that not are enumerated in the certification of officer, do not competent constitute evidence which upon an administrative agency may base its decision that a rea- person sonable would have believed that individual That impaired. operated had a motor vehicle while question argument.” thrust of our is the central must state the factual maintained that Respondent not sobriety field tests are he concludes that basis which present- that the evidence argued He done his satisfaction. incompetent by the were inferences drawn ALJ ed and the not therefore, of the ALJ was based the factual decision and upon substantial evidence. vacated the agreed. The Circuit Court
The Circuit Court ruling solely her determining that ALJ based ruling after concluded field test. The court sobriety on the results incompetent sobriety test constituted results respondent’s regarding per- facts particular because evidence identified on the sobriety were not formance on the field as follows: form DR-15A. The court reasoned his on the ruling basis of unsatis- expressly “He states the tests, factory enumerated roadside performance I don’t believe the no clue of what was. And we have well, because the defen- say, is that the Court should law test, failed, any the blood test and in kind because dant say, you could come on a criminal case failed you getting were there without the DNA indicated because results, it was at all ... saying without what any unsatisfactory is performance. But what we have here Now, hear it all time in that’s an guilty pleas, we but not is entirely different scenario. But when Court here findings upon, its decision based look at make it role judge, says my administrative law to sit off line and finding stepping here and decide *8 grounds to make an weaving, whether that’s reasonable not, go is the of this Court to arrest or that not role back that, say replay, second-guess like an instant and that grounds. just have reasonable That’s shouldn’t been role this But this have before it the of Court. Court doesn’t were all. grounds what the at reasons,
And for those of the administrative law findings vacated, petition is sustained.” judge will be and The MVA filed a for a writ of petition certiorari to this granted Court. We to petition address the following question:
“Did the ALJ have substantial evidence to find the arresting officer who had stopped Shepard grounds reasonable to 16-205.1(f)(7)(i)(l) a request ], chemical test under [§ breath when the Shepard ALJ considered that stopped was hour, speeding 132 per miles was observed at the time of his have a stop strong odor of an alcoholic beverage on his breath, as watery well as eyes, bloodshot had preliminary test breath result 0.10 and was arrested based on the sobriety tests, result field which the officer did not his describe detail in written statements?” v. Shepard,
MVA
III. Court, Before the MVA that argues there was substan- tial to support evidence ruling respondent ALJ that violated 16-205.1. The MVA that argues the statute does not require an officer provide a detailed description written how a on a person performs sobriety field and that the upon DR-15A which the ALJ relied contained infor- sufficient grounds mation and respondent to ask to take the alcohol concentration test. Alternatively, the MVA argues that test, even without the results of the field officer’s certification indicated that respondent was traveling at an speed, excessive rate of strong had odor alcohol on breath, his watery had eyes, bloodshot and admitted to all of which are drinking, indicia of intoxication.
In initial his argument, noted his brief before this Court, respondent states the ALJ only found that “the bases which had reasonable be- Shepard lieve that attempting drive while under the influence articulated Law Judge’s Administrative fact, i.e., written finding Shepard speeding per miles hour.” inconsistently, Somewhat respondent then argues relied solely, ALJ improperly,
251 of the field the results officer as to eonclusory statement the ALJ is that argument second Respondent’s test. this before In his legal standard. brief wrong applied used grounds” as that “reasonable Court, states respondent based argument, At oral cause.” “probable means the statute 397 Tarachanskaya, v. ruling Volodarsky Court’s upon this (2007), respondent’s filed after case Md. 916 A.2d as grounds” “reasonable brief, that the term he maintained of the evidence preponderance § means “a seen in 16-205.1 standard.”
IV. at the adminis the evidence first whether We consider to conclude sufficient for the ALJ hearing trative necessary Finch the reasonable possessed Officer respondent’s alcohol concentration. a test to determine request supported by substantial ruling that the ALJ’s We hold the requisite possessed evidence to show the officer grounds required by 16-205.1. reviewing when Maryland courts a limited role play Fowler agencies. of administrative See adjudicatory decisions 331, 342, v. MVA Act, (1984, 2004
Maryland Administrative Procedure Md.Code 10-201 of the State Govern Repl.Vol., Supp.) seq. et Article, judicial out the review ment sets framework decisions, follows: agency administrative as section, the court proceeding under “Decision—In may:
(1) proceedings; the case for further remand (2) decision; final affirm the or (3) right or if substantial modify any reverse decision prejudiced have because a petitioner may of the been conclusion, or decision: finding, (i) unconstitutional;
(ii) or statutory authority jurisdiction exceeds maker; final decision
(iii) results from an unlawful procedure; (iv) law; by any is affected other error of (v) material, is unsupported by competent, substan- submitted; tial light evidence entire record *10 (vi) is arbitrary capricious.” 10-222(h) (1984, 2004 Repl.Vol., Md.Code 2006 Supp.) State Government Article. Under the Administrative Proce- Act, dure a court’s role in reviewing agency adjudicatory an Maryland decision is narrow. very Aviation Administration Noland, 570-71, (2005). 556, 1145, v. Md. 386 873 A.2d 1154 Banks, Physician 59,
In Board
v.
Md.
354
“In applying test, the substantial evidence a reviewing court decides whether a reasoning reasonably mind could the have reached factual conclusion the agency reached. A reviewing court should to the fact-finding defer and agency’s drawing they of inferences if by are supported the record. A reviewing court must review the agency’s decision the light it; most ... agency’s prima favorable the is decision valid, facie and ... presumed correct it is agency’s the province to resolve conflicting evidence and to draw infer- ences from that evidence.” (internal 67-68,
Id.
Respondent’s assertion that sobriety test” or the fact “factually unsupported field traveling per of miles hour is respondent was excess the The wrong unsupported by record. Circuit simply is as well. The Circuit Court conclusion erroneous Court’s exclusively ALJ her decision on the determined that the based found be- field test. court that sobriety results the explained sobriety the field test results were cause detail, incompetent evidence ruling the was based sufficient is The test is whether there and could not be sustained. As agency. evidence to the decision of the support substantial clear, the ALJ made she considered combined evidence ... [respon- hearing request “more than sufficient field take a She did not consider the simply test.” dent] clearly test and the evidence she considered more than sufficient to request respondent to take a test determine his alcohol concentration.
V. We turn now to respondent’s argument the ALJ applied wrong legal in construing the meaning standard “reasonable grounds” as used in 16-205.1. Based on our in Volodarsky, opinion 291, recent 991, 397 Md. 916 A.2d he argues “reasonable grounds” means “a preponderance of the evidence least, standard” or at the very probable cause. disagree We and hold that the term “reasonable grounds” as §in used 16-205.1 means “reasonable articulable suspicion” and not preponderance of the evidence or probable cause. statute,
In interpreting a we have stated repeatedly that the cardinal of statutory rule construction is to ascertain and effectuate the intent of See Mayor & Town Legislature. Council Oakland v. Mayor & Town Council Mountain Park, Lake 301, In Lake, Mountain explained we as follows: “In intent, ascertaining legislative we first examine plain language statute, of the and if plain language of the statute is unambiguous and consistent with the statute’s apparent purpose, give we effect to the statute as it is If written. a statute has more than one reasonable inter- pretation, it is If ambiguous. the language of the statute is ambiguous, we resolve the ambiguity light of legisla- intent, tive considering legislative law, history, case statutory purpose. We consider both ordinary meaning language the statute and how that language relates to the overall meaning, setting, and purpose of the act. We avoid a construction of the unreasonable, statute that *12 illogical, or inconsistent with common sense. We construe a word, statute as a whole so clause, that no sentence, phrase is rendered surplusage, superfluous, meaningless, or nugatory.” (internal
Id. omitted). citations The United Supreme States Court addressed the threat to public safety by caused drunk drivers in South Dakota v.
255 (1983). Neville, 553, 916, 748 103 S.Ct. 74 L.Ed.2d 459 U.S. stated follows: The Court of the drunk this case—that underlying situation
“The
high-
on our Nation’s
tragic frequency
driver —occurs with
docu-
by
caused
drivers is well
carnage
The
drunk
ways.
Court,
here. This
no detailed
mented and needs
recitation
daily
contact with the
although
having
problem
have,
repeatedly
tragedy.
has
lamented the
state courts
Abram,
439,
408, 1
432,
352
77 S.Ct.
Breithaupt
See
v.
U.S.
(1957) (‘The
slaughter
high-
on our
increasing
448
L.Ed.2d
avoidable, now
most of which should be
reaches
ways,
battlefield’); Tate v.
figures only heard of on the
astounding
(1971)
401,
Short,
395,
668,
401 U.S.
91 S.Ct.
Neville, 558-59, 103 920. 459 U.S. at S.Ct. at response public dangers
In
concern about the
to
§ 16-
driving, Maryland
Assembly
drunk
General
rewrote
205.1,
“im
referring to the rewritten
as Maryland’s
statute
consent”
“administrative
se” law
drunk
plied
per
against
10,
Fowler,
n.
See
256
Section 16-205.1 does not
an
require
precede
arrest
an
request
Richards,
officer’s
for the driver to take a test.4
356
374,
Md. at
Respondent that, argues alternatively based on our recent 291, decision 397 Volodarsky, 991, Md. the term 4. require Some of our sister may states an arrest before an officer request a driver to take a chemical generally test. Those states have consent, interpreted implied per their require probable se statutes to Collier, requirement. cause e.g., because of the arrest See State v. 279 316, 281, (Ga.2005) Ga. 612 S.E.2d (holding 284 Georgia arrest, implied contemplates consent law requires proba- and therefore test); ble cause to conduct an alcohol concentration Verdoom v. Di- Revenue, 543, (Mo.2003) (enbanc) rector 119 S.W.3d 545 (noting that requires Missouri law supported by probable an arrest cause before an may test); MVD, conduct an alcohol concentration Pooler v. (1988) (en banc) Or. 755 P.2d (noting Oregon law requires supported by probable an arrest may cause before an officer test). request an alcohol concentration “preponderance §in 16-205.1 means grounds” “reasonable disagree. evidence.” We parent in which one custody a child case Volodarsky abuse. The issue before the other of child sexual accused (1984, Repl.Vol.) of Md.Code was the construction Court *14 in 9-101 requires, Law Article. Section Family § 9-101 of the that, if court has proceeding, the custody or visitation any been abused to believe” that a child has grounds “reasonable court must proceeding, to the the neglected by party or a if likely is to occur neglect whether abuse or determine § 9- party. to that rights granted or visitation are custody 101(a). that, specifi- court finds states unless the The statute or no of further child abuse that there is likelihood cally or custody either by deny the the court must neglect party, a visita- party approve supervised to that or rights visitation safety physiological, arrangement tion that assures § 9- well-being of the child. and emotional psychological, 101(b). the same grounds” In means holding that “reasonable 9-101, we reasoned of the evidence under preponderance as follows: together. must be read “The two subsections of 9-101 (a) that, if, or custody in a visitation requires Subsection that to believe grounds the court has reasonable proceeding, by party or a to the neglected a child has been abused or court must whether abuse proceeding, determine if or visitation are likely custody rights is to occur neglect granted party. (b) of the court’s consequence then states the
Subsection for such a belief grounds determination that reasonable event, custody or deny In that the court must exist. secure, visitation, unless it except supervised setting, a abuse ‘that is no likelihood specifically finds there offurther ’ added). require To a neglect by party. (Emphasis or likely or is not specific finding neglect’ that abuse further finding be some sort of clearly implies that there must neglect likely that abuse or by determination the court whether, at first instance. The a question occurred minimum, prepon- at least a finding by that must be made of the evidence. derance a court to make what is permit and reason to logic
It defies
fact,
lead to
especially
may
one
essentially
finding
of access to
Constitutionally-based right
deprivation
find,
child,
court is unable to
even
one’s
when the
not.
likely
is more
so than
that the fact
margin,
slimmest
for it to believe
grounds
can a court have reasonable
How
persuaded,
if it is not
from whatever
that an act occurred
it,
act
likely
more
properly
evidence is
before
Special Appeals
not? Under the Court of
occurred than
rationale,
to believe
could find reasonable
a court
because,
mind,
which, in
own
it does not believe
its
fact,
view,
support
evidence does not
its
the credible
as the antithesis of reasonableness.”
that strikes us
304-06,
(empha-
The decision on police Law Article and that of the Family 101 of the Transportation Article are the road under 16-205.1 to Family judge Law Article very requires different. The a necessarily by must be finding make a of fact—one which officer on the road police of the evidence. preponderance justify of intoxication to further only suspicion need have under 16-205.1. investigation and further detention Volodarsky out the determination pointed We an objective for a belief can involve either grounds reasonable Id. at depending on the circumstances. subjective analysis, or upon A.2d at 1000. When a officer is called incomplete on preliminary make a determination based probable evidence as to whether hearsay often non-testimonial exists to grounds suspicion cause or reasonable reasonable step investigation, may further in an the officer justify some whether, if simply take evidence at face value and decide true, a belief that an offense was it leads to reasonable “objective analysis is most (noting committed. See id. only preliminary in situations which a determina- often used made, and often non- incomplete tion need be based evidence”). hearsay testimonial The result of such a determi- fact, finding simply nation is not an ultimate but a basis for arrest, detention, step a further a a taking procedural —an or, case, search, as in a request take a alcohol concentration. a court is called determine When judicial finding, analysis may to make a a different be re- quired. credibility The court often must make determinations weigh the value of the evidence. Id. at 916 A.2d at effect, judicial 1000-01. has finding preclusive Because court, standard, required higher unless use must find at supported by preponderance its conclusion least evidence, anything necessarily arbitrary. less would be Id. 305-06, at 1000. dealing A.2d We are not here with analysis. kind of indicated,
As we have means less than it probable Ipso facto, preponderance cause. does not mean the evidence. THE
JUDGMENT OF CIRCUIT COURT FOR MONT- GOMERY COUNTY CASE REMANDED REVERSED. TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE THE RULING OF ADMINISTRATIVE PRE- LAW JUDGE SIDING OVER RESPONDENT’S LICENSE SUSPENSION BE PAID BY HEARING. COSTS TO RESPONDENT. ELDRIDGE, JJ., GREENE and Concur.
ELDRIDGE, J., concurring:
I judgment concur and in Parts I through IV the however, I opinion. disagree, Court’s with Part V of the V, opinion. The issue discussed the Court in Part namely *16 applied wrong legal whether “the ALJ the in standard con- struing meaning grounds’ the of ‘reasonable in used 16- 205.1,” is not properly before the Court because it was not Moreover, raised agency. before the administrative even if the us, properly issue were before the “reasonable grounds” stan- in dard a civil statute should be applied by the administrative
260 sense, becoming common without as a matter of trier of facts law of and the in intricacies of criminal law entangled applied by has been standard The “reasonableness” arrest. courts without proceedings in multitude of civil of fact triers arrests, detentions, criminal law of delving into the agencies encounters, etc. I. that, administrative law Maryland principle It is a settled administra- adjudicatory review of an judicial in action for an decision, should decline reviewing courts agency tive Brodie v. agency,” raised “an issue not before consider Administration, 1, 4, 747, 749 785 A.2d 367 Md. Motor Vehicle in explained Depart- for the Court Judge Bell Chief 123, 1051, 108, A.2d 771 Campbell, Health v. ment of (2001): 1060 10-222(a) of the (1984, Repl.Vol.) 1999
“Maryland Code party ‘a who provides Article Government State is entitled final decision a contested case by the aggrieved Thus, it is the final of the decision.’ judicial review decision maker at the administrative of the final decision judicial Accordingly, review. subject ... that is level court, before the to the record made restricted reviewing Bd. Disability v. Review see Cicala agency, administrative 254, 260, 205, Md. County, 288 George’s Prince it for the (1980), presented issues pass upon may 209 encompassed and that are not judicial time on review first agency. Stated final decision of the administrative adjudicatory review an court will differently, appellate upon by relied solely on the decision agency County v. George’s Prince County See Council agency. Inc., 339, 349, A.2d Md. Brandywine Enterprises, (1998) 1, supra.” in note 1346, and cases cited 1350-51 Heister, 140, 147 See, also, Md. Education v. e.g., Board of (2006) (“ ‘It is the function A.2d 346 n. 5 n. materials that were only court to review reviewing it its final deci- at the time made agency before the record
261 ” sion,’ appellate and an court not a question should review court); which was in in “interjected the case” the circuit Weller, 115, 128, Motor Vehicle Administration v. 390 Md. 887 (2005) (“ 1042, A.2d 1050 ‘Because the issue of error alleged was not during raised the administrative it proceeding, was in properly judicial raised proceeding, review ”us,’ properly therefore is not before quoting Cicala v. Dis Co., 254, ability 263, Rev. Bd. Prince George’s 418 for 205, (1980)); A.2d 210-211 Mayor & Council Rockville v. Club, 3, Country 572, 301, Woodmont 348 n. Md. 582 705 A.2d (1998) (“Judicial 305 n. 3 review of administrative decisions is limited issues raised before agency”); Insurance Com 596, 634, missioner v. 862, Equitable, Md. (1995) (“We have repeatedly pointed judicial out that review administrative decisions is limited to the issues or dealt with the administrative agency”), and cases there cited.
No issue concerning the interpretation of ‘rea- “meaning grounds’ sonable in used (majority opinion 16-205.1” 254, 107) A.2d at was ever raised or decided at administrative in hearing the instant case. Although counsel for the respondent Shepard, ALJ, argument oral before the used both phrase “probable cause” and statutory phrase “reasonable grounds” arguing that the police officer did not have a sufficient basis to believe Shepard driving his motor alcohol, vehicle while under the influence of counsel Mr. Shepard made no absolutely argument with respect to the meaning phrase grounds.” “reasonable Furthermore, although ALJ, in the oral ruling rejecting counsel’s arguments, pointed out that the statutory standard grounds” “reasonable “probable cause,” rather than ALJ rendered no opinion or legal conclusion with respect meaning of the “reasonable grounds” standard. It was not an issue at the administrative but hearing was raised for the first time the Circuit Court.
At the administrative hearing, February counsel (Mr. Costello) for Mr. Shepard John F.X. made what he categorized as arguments three relating to whether Mr. Shep- pursuant 16-20 5.1 of
ard should be sanctioned Article. Transportation initially argued Shepard’s preliminary
Mr. that Mr. Costello (PBT) results, in the officer’s included breath (Form DR-15A), into not be admitted certification should Appeals relied Special Court evidence. Counsel *18 PBT circuit holding that results were inadmissible opinion The out that a recent pointed court criminal cases.1 ALJ PBT admissi- held that results were Appeals opinion Court Nevertheless, ruled hearings.2 the ALJ ble administrative PBT, that, the I have no “if want me to consider you don’t considering just everything it. I’ll read but problem not PBT.” hearing administrative arguments next at
Counsel’s form. Mr. Costello that argued concerned the certification signed an alcohol concentration test “was not refusal take that, officer’s police the test because technician” certification, not com- in the the certification did punctuation that, This contention to be with 16-205.1. latter seemed ply comma, of a it was not clear whether because the absence that certifying grounds “this officer under his reasonable is of alcohol” or “he’s this man was under the influence whether grounds on the he was driv- certifying that based reasonable dangerous a motor after a controlled ing consuming vehicle absolutely substance. There’s no indication whatsoever motor after a controlled operating consuming he was vehicle ALJ, these without dangerous ruling substance.” time, to make respondent’s contentions counsel at asked “your argument.” third respondent’s final counsel was argument by
The third and
to have
for the
evidence was insufficient
Shepard
had reasonable
believe
Mr.
grounds
particular,
of alcohol.
In
driving while under
influence
State,
(2002).
Md.App.
1. Harmon v.
Weller,
Md.
“ATTORNEY JOHN F.X. COSTELLO:
“The third argument when the Court looks at the grounds impermissible and excludes the PBT standpoint from as the has agreed [our] Court to do so four corners the reasonable certification does not amount to probable absolutely cause. There is no evidence before the Court as to what the standard field They’re test results were. not outlined at all. All the Court has before Your Honor is a motor vehicle at a rate of high speed strong with a odor of *19 alcohol and watery eyes. bloodshot The fact that officer chooses not to give you the test results is an indication of his own disbelief either the test results or his belief that the test results would be of indicative something probable other than cause of intoxication. As knows, Your Honor the whole purpose sobriety field tests is that of odor alcohol and bloodshot eyes standing alone is not probable evidence of cause of an individual’s inability operate to a motor safely. vehicle Here we agot man that is a vehicle well a very very rate high of speed. That and of against itself militates any inference of probable impaired cause of ability to drive alcohol, two, due to number one. Number the officer chooses not to give any this Court benefit of what the sobriety field test results showed. To the extent don’t, they against is an inference the officer and to the extent that the officer needs sobriety those field tests upon which to base his certification probable of cause to
arrest, done, a they’re and that’s whole reason cause but with probable compliance failure is indicative an or a of field tests is completion sobriety successful choos- just opposite. When he purposely indication got of those results there’s give you es to benefit have been they to be honest inference that would not or helpful. argue the Court wants whether Whether it accept spoliation theory just under a you want He certify grounds theory. failure to under gaze in and constitutes a nystagmus could have come said failure, safely, man he could not that the could not walk walk-and-turn, He do he could not do the stand. one-leg you any hasn’t that. And given benefit candidly whole reason that he had to do them was that you probable I both know that it does not amount to is lawfully operating cause if an individual a motor vehi- cle, lanes, speed at a rate of high i.e. within If that simply eyes. has an odor of alcohol and bloodshot no the field were the case then there would be need for test.” asked following argument, above the ALJ Immediately did any arguments; whether counsel had additional the ALJ contention “sandbagged” by not want to be some additional later. occurred: following colloquy made JUDGE FRIEDMAN: “ADMINISTRATIVE LAW else? “Okay. Anything JOHN F.X.
“ATTORNEY COSTELLO: at this time. “Not FRIEDMAN:
“ADMINISTRATIVE LAW JUDGE I’m I “Okay. going rule so want know whether You I’m any arguments. there are other stated three. I going your arguments. to rule on all don’t three *20 you telling you want then to be me that have another I all the at once. argument arguments so want have F.X. “ATTORNEY JOHN COSTELLO: “I I that. what meant not at appreciate by And I put time if don’t in our favor and on you rule evidence, my Nothing renew motion. right I have a more.” At conclusion of testify. Shepard then had Mr.
Counsel was argument reiterated his that there testimony, counsel Shepard’s that Mr. testimo- evidence and asserted insufficient Again, statutory no alleged insufficiency. confirmed the ny argument was made. interpretation ruling, rejecting an oral those thereupon
The ALJ delivered ruled previously upon. which the ALJ had not arguments Mr. principal argument by Shepard’s to the respect With counsel, the ALJ stated: grounds. issue in this case is reasonable The reason-
“The much than as stated the officer are more grounds able than sufficient reasonable sufficient. He has stated more take a test. That’s what he grounds request you are The standard field tests doing here. HGN, to counsel’s statement. walk-and- contrary identified stand, turn, that those tests were done.” one-leg says he any concerning At no time did the make conclusions ALJ in grounds” as used the statute. interpretation “reasonable mentioned, point As did out that previously ALJ grounds” “proba- standard was “reasonable and not statutory said, however, meaning about the Nothing ble cause.” statutory interpretation no grounds.” Finally, “reasonable written conclusions of law. issue was mentioned the ALJ’s cases, As time after time our courts should emphasized judicially adjudicatory review administrative decisions agency. not raised before the administrative Assembly, public policy, as a has deter- General matter law agencies mined that administrative and administrative within the judges initially falling should rule issues Permitting and ALJs. jurisdiction agencies agencies for the “sandbagged” by legal ALJs to be new issues raised directly contrary legislative first time circuit courts is policy.
266
III. us, if were statutory interpretation Even the issue before utilize somewhat good complicated there is no reason to cause,” arrest, concepts “probable criminal law “reasonable etc., law with their federal law and state suspicion,” articulable concepts such to a “reasonableness” components, apply and in civil proceeding. standard a state law case, in there rationally is no issue this presented There issue, arrested Shepard lawfully could no that Mr. was be committed a misdemeanor in the Maryland under law. He i.e., officer, motor driving of a vehicle presence police (2001), per Maryland of 132 miles hour.3 See Code excess 2-202(a) No other crimi- of the Criminal Procedure Article. suspension proceeding, nal is involved. The license law issue refusal to take an alcohol concen- Shepard’s based Mr. test, entirely proceeding, is a civil administrative sub- tration judicial civil action for review. While three ject statutory to a at the administrative may or four issues have been raised officer only surviving police issue whether hearing, that Mr. was Shepard had “reasonable to believe” ... influence of alcohol while “driving while under the [or] 16-205.1(b)(2) ...,” impaired by Transporta- alcohol tion Article. traditionally applied have adjudicatory agencies
Courts and proceedings the “reasonableness” standard civil without A utilizing drawing analogies concepts. to criminal law cases, of all triers of negligence types, require multitude conduct. fact to determine the “reasonableness” defendants’ See, Turner, 467, 477, 479-480, v. 869 e.g., Polakoff (2005) (“The 837, 843, trier of fact must ... evaluate A.2d taken by whether the actions the defendant were reasonable * * * trier of fact must under all the circumstances. [T]he acted reasonably given determine whether the defendant 70, 84-85, circumstances”); v. Lewin Md. Realty, Brooks If, unrealistic, glance, 3. seems it be that Mr. at first should noted Shepard a Porsche. case, present Similarly, fact should decide whether ALJ as trier of circumstances. The under all grounds” had “reasonable present, were grounds” that “reasonable ALJ did find This evidence. supported by substantial finding of the matter. be the end should *22 joins concurring opinion.
Judge GREENE A.2d 115
In d.B. re ROBERTO Term, 110, Sept. 2002. No. Maryland. Appeals of
Court of May 2007.