Actual Physical Control and Atkinson

In the instant case, had there been evidence to establish that Atkinson had driven prior to his apprehension, he might properly have been convicted-- not because of what he was doing when the officer arrived on the scene, but because of what the factfinder could have inferred he had done previously, i.e., actually drive, operate, or move his vehicle while intoxicated. While many forms of circumstantial evidence potentially could have lead to this conclusion, no such evidence was adduced in Atkinson's case. There is no evidence that Atkinson did anything but climb into his vehicle, put the key in the ignition, and go to sleep. Without such evidence, and in light of our previous conclusion that Atkinson was not in "actual physical control" of the vehicle when apprehended, we must reverse his conviction.

JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY REVERSED. COSTS TO BE PAID BY HARFORD COUNTY.


Motor Vehicle Administration v. Knowlton R. Atterbeary,

 

[Under Maryland Code (1977, 1999 Repl. Vol.) Section 16-205.1 of the Transportation Article, what constitutes a refusal to submit to a blood alcohol concentration test, and what constitutes "driving" or "attempting to drive" for purposes of triggering the statute's implied consent provision for testing;

 

Held: oral consent to a test for blood alcohol concentration is sufficient–the statute does not require suspected drunk drivers to sign a written consent form; a person who is in actual physical control of a vehicle is considered to be "driving" or "attempting to drive ."


 

 

MOTOR VEHICLE ADMINISTRATION

v.

KNOWLTON R. ATTERBEARY

Opinion by Battaglia, J.

Petitioner, Motor Vehicle Administration (hereinafter "MVA"), asks us to consider what constitutes a refusal to submit to a blood alcohol concentration test in light of the two hour time limitation for such tests imposed by Maryland Code (1974, 1998 Repl. Vol.), Section 10-303 of the Courts and Judicial Proceedings Article, where the individual suspected of driving while intoxicated has expressed a desire to consult with an attorney prior to making a test decision. Respondent, Knowlton Atterbeary, filed a cross-petition requesting consideration of what conduct constitutes driving or attempting to drive for purposes of triggering the implied consent provisions of Maryland Code (1977, 1999 Repl. Vol.), Section 16-205.1(a)(2) of the Transportation Article.

I.          Facts

In the early morning hours of April 22, 2000, the Montgomery County Police received a call from fire and rescue personnel requesting assistance with an individual, later determined to be the respondent, Atterbeary, who was slumped behind the wheel of his car at 3121 Automotive Boulevard in front of the Herb Gordon Oldsmobile dealership. Montgomery County Police Officers Mondini and Williams responded to the call. Upon arrival at the scene, Officer Mondini observed Atterbeary sitting in the driver's seat of his Mercedes with the keys in the ignition, the engine running, and the dome light illuminated. Officer Mondini was advised by the Fire/Rescue personnel that they had attempted to speak to Atterbeary, but that he refused to get out of his car and would only roll down the window about an inch. Officer Mondini iterated his need to speak with Atterbeary twice, after which Atterbeary rolled down the window far enough for the officer to reach inside and unlock the

door. Officer Mondini noticed Atterbeary's slurred speech and bloodshot eyes as well as a strong odor of alcohol emanating from him.

Officer Mondini attempted to administer several field sobriety tests to Atterbeary, including the horizontal gaze nystagmus, walk and turn, and one-leg stand, to no avail. Each time the officer gave the instruction to perform the test, Atterbeary responded that he did not

understand. When the officer repeated the instructions, Atterbeary said he could not hear the officer. After the third attempt at clarifying the instructions, Atterbeary performed each test and failed them. Thereafter, Officer Mondini took Atterbeary to the police station in Silver Spring.

At the police station, according to the testimony of Officer Mondini, the officer read the DR-15 Form1 to Atterbeary, and Atterbeary indicated his willingness to take the 1 The DR-15 Form, sometimes referred to as The Advice of Rights and Administrative Penalties for Refusal to Submit to a Chemical Test statement, is derived from Section 16- 205.1(b) o f the Maryland Transportation Article; it provides in part:

You have been stopped or detained and reasonable grounds exist to believe that you have been driving or attempting to drive a motor vehicle while intoxicated; under the influence of alcohol; so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol, or under the influence of a controlled dangerous substance that you could not drive a vehicle safely; or in violation of an Alcohol Restriction.

In this state, any person who drives or attempts to drive a motor vehicle, including a commercial motor vehicle, on a highway or on any private property that is used by the public in general, is deemed to have consented to take a chemical test to determine

breathalizer test. The officer then asked Atterbeary to sign the consent provision on the DR‑15 Form acknowledging his willingness to submit to the test. At that point, Atterbeary stated

that he did not understand the DR-15 Form and wanted to read it for himself. Officer

Mondini gave the form to Atterbeary and then left the room for several minutes. After

Officer Mondini returned, Atterbeary informed the officer that he wished to speak to an

attorney. When Officer Mondini asked Atterbeary for the name and number of the attorney, Atterbeary stated that he did not have one at the moment. Officer Mondini stated that he asked "him again to sign [the form] and he refused to sign it, which to me he refused to take

the alcohol concentration, or a blood test to determine the drug or controlled dangerous substance content of the person. The chemical test shall be at no cost to you. A test of blood shall be administered if the breath test equipment is unavailable, a test is required to determine the drug or controlled dangerous substance content, or if your injuries require medical treatment. The results of such test or a refusal of such test may be admissible as evidence in any criminal prosecution.

* * *

You have the right to refuse to submit to the test. If you refuse: The Motor Vehicle Administration (MVA) will be notified of your chemical test refusal; your Maryland (M D) driver's license shall be confiscated; an Order of Suspension issued, and if eligible, a temporary license issued, valid for 45 days. An Administrative suspension shall be imposed by the MVA against your MD driver's license or driving privilege if you are a non­resident. The suspension shall be 120 days for a first offense and 1 year for a second or subsequent offense. You will be ineligible for modification of the suspension or issuance of a restrictive license; except in certain circumstances, a test refusal suspension may be modified and a restrictive license issued, if you agree to participate in the Ignition Interlock Program for at least 1 year.

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the breath test." Officer Mondini then asked Atterbeary several routine questions, such as

his date of birth and social security number, as part of the officer's completion of the DR-

15A Form.2 Atterbeary responded to each question by stating that he wanted to speak to an attorney. In response to each of the unanswered questions on the DR-15A Form, Officer

Mondini filled in the word "refused."3

On the form, Officer Mondini had initially checked the box which stated that

Atterbeary agreed to submit to an alcohol concentration test, but then crossed it out and

marked the refusal box instead. No attempt was ever made to administer the breathalyzer test to Atterbeary. Officer Mondini issued a citation to Atterbeary for driving while intoxicated, called him a cab and released him.

Atterbeary requested and hearings were held before an Administrative Law Judge (ALJ), on July 26 and October 24, 2000.4 At the hearings, Atterbeary objected to entering Officer Mondini's certification in evidence, because he asserted that the certification did not

adequately describe the location of the offense other than to state that it took place in

2                  The DR-15A Form contains general factual information about the suspected drunk driver and the incident giving rise to the arrest.

3 Officer Mondini also stated that Atterbeary refused to sign a provision contained on the "Officer's Certification and Order of Suspension" form which would have permitted Atterbeary to have a temporary license for either forty-five days or until completion of an administrative hearing on the issue, whichever occurs first. Atterbeary maintained that Officer Mondini never asked him to sign such a provision.

4 At the conclusion of the initial hearing on July 26, 2000, the ALJ decided to continue the proceedings and call Officer Mondini to take additional testimony. The subsequent hearing was not held until October 24, 2000.

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Montgomery County. He argued, therefore, that the MVA had failed to make a prima facie showing that Atterbeary was driving or attempting to drive on a public highway or private

property used by the public in general. Throughout his testimony, Atterbeary also maintained that he never refused to sign the form or refused to take a breathalyzer test.

In his findings of fact, the ALJ stated:

Licensee asserts that road where he was approached by officer is a private road. I disagree–evidence by officer and by photo is that it is a public road used by the public in general. Licensee asked for an attorney. When asked for name & phone number he said he did not have one at the moment. I conclude Licensee did not have an attorney to call. Thereafter licensee kept answering he wanted to talk with an attorney to all questions. I conclude therefore he refused to take the test.

He concluded that Officer Mondini had a reasonable basis pursuant to Section 16-205.1 of the Maryland Transportation Article to believe that Atterbeary was driving or attempting to drive while intoxicated or under the influence of alcohol, and that at the time of the incident, Atterbeary was located on a highway or private property which was used generally by the public.

Atterbeary filed a Petition for Judicial Review of the ALJ's decision in the Circuit

Court for Howard Count y5 pursuant to Maryland Code (1984, 1999 Repl. Vol.), Section 10-

5 Although the incidents at issue in this matter occurred in Montgomery County, the provision governing judicial review states, "[u]nless otherwise required by statute, a petition for judicial review shall be filed with the circuit court for the county where any party resides or has a principal place of business." Md. Code (1984, 1999 Repl. Vol.), § 10-222(c) of the State Gov't. Art. Atterbeary met the conditions of the statute in order to file in Howard County.

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222 of the State Government Article. The Circuit Court found that there was substantial

evidence to support the ALJ's finding that Atterbeary was driving or attempting to drive

while intoxicated on a public road. Nevertheless, the Circuit Court concluded that Officer

Mondini had acted in haste in determining that Atterbeary had refused the breathalyzer test:

With regard, however, to the reasonable opportunity to contact an attorney, I think Officer Mondini, in plain English, and no pun intended, jumped the gun. I think the evidence – there is no evidence in the transcript that says, look, we need to get a breathalyzer operator in here. We need to have x-amount of minutes in order to start up the machine and so forth. There is no question that an individual can thwart or attempt to thwart the giving of the intoximeter test or other breath test or test by blood, by pushing the two-hour limit. But there is no evidence of that here.

In other words, there is no testimony that I found in the record that where Officer Mondini said, look, we went back to the Silver Spring station, but I would have, at that hour of the morning, I would have had to call in an intoximeter person, and I told the defendant that that's going to take 22 minutes, approximately, and it's going to take x-amount of minutes to start up the machine, et cetera, et cetera. There is nothing in there. So when you take a look at the time of arrest, and the time that the officer determined a refusal, it was just too quick.

And, therefore, the Court, while it agrees that the State has no obligation to provide information specific to an arrestee of a name, or address, or phone number of an attorney, basically, in my opinion, Officer Mondini should have said, you know, Mr. Atterbeary, here's the phone, call whoever you want. And if Mr. Atterbeary could not get in touch with an attorney, the officer should have said, Mr. Atterbeary, I need to have your election by X and X time. I have to take the test within the two hours. And if you don't tell me by such a[nd] such a time, that's going to thwart that, and I have to then count that as [a] refusal. Basically, Officer Mondini just went too far – too fast, I should

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say. It may have been the same outcome, but I don't know that. So on that issue it's reversed.

Accordingly, on June 21, 2000, the Circuit Court entered an order reversing the ALJ's

decision to suspend Atterbeary's license, and remanded the matter to the MVA for adjustment in compliance with the order.

MVA filed a petition for writ of certiorari and Atterbeary filed a conditional cross‑

petition for writ of certiorari. We granted both petitions, Motor Vehicle Admin. v.Atterbeary, 365 Md. 472, 781 A.2d 77 8 (2001) in order to consider the following questions, which we have rephrased:

1.              Where a suspected drunk driver orally indicates his willingness to submit to a test of blood alcohol concentration under Section 16-205.1 of the Maryland Transportation Article, and then repeatedly requests to speak with an attorney prior to signing a form consenting to such a test, does his subsequent conduct vitiate his earlier consent?

2.              Was an occupant of a vehicle in actual physical control of a vehicle constituting driving or attempting to drive under Section 16-205.1 where the occupant was found awake, behind the wheel of the car with the engine running and parked along the side of a public road when the police responded to the scene?

3.                Does a police officer have "reasonable grounds" under Section 16-205.1 to forcibly investigate the condition of a motorist who is "slumped over the wheel" of a parked vehicle?

Based on our responses to the first two questions presented for our review, we need not consider the third issue.

 

II. Discussion

A.         Standard of Review

Section 10-222 of the State Government Article of the Maryland Code, permits the following actions upon judicial review of the administrative agency's decision:

(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 final 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 or capricious.

Md. Code (1984, 1999 Repl. Vol.), § 10-222(h) of the State Gov't. Art. Upon judicial review, the Circuit Court is limited to determining whether there was substantial evidence on the record as a whole to support the agency's findings of fact and whether the agency's

conclusions of law were correct. See Board of Physician Quality Assurance v. Banks, 354

Md. 59, 67-68, 729 A.2d 376, 380 (1999)(quoting United Parcel Services, Inc. v. People's

Counsel for Baltimore County, 336 Md. 569, 577, 650 A.2d 226, 230 (1994)). In reviewing the administrative agency's decision, we apply the same statutory standards as the Circuit

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Court. See Maryland Div. of Labor and Ind. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 416, 784 A.2d 534, 539 (2001)(quoting Gigeous v. E. Correctional Inst., 363 Md. 481, 495, 769 A.2d 912, 921 (2001)).

B.        What Constitutes A Refusal

We now turn our attention to the merits of MVA's question of what constitutes a

refusal to take a blood alcohol concentration test under Section 16.205.1 of the Transportation Article. While the Circuit Court emphasized the time constraints of the testing procedure in determining whether a refusal occurred, we will decide the issue based

upon what constitutes a refusal to take the test, which, in this case did not occur.

Section 16-205.1(a)(2) sets forth the general testing policy applicable to individuals

who are suspected of driving or attempting to drive while intoxicated:

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 intoxicated, while under the influence of alcohol, while so far under the influence of 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 under the influence of a controlled dangerous substance, in violation of an alcohol restriction, or in violation of § 16-813 of this title.

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Md. Code, § 16-205.1(a)(2) of the Transp. Art. (1977, 1999 Repl. Vol.).6

Section 10-303(a) of the Courts and Judicial Proceedings Article imposes time limitations on obtaining blood alcohol concentration test results from suspected drunk drivers:

(a) Alcohol concentration. – (1) A specimen of breath or 1 specimen of blood may be taken for the purpose of a test for determining alcohol concentration.

(2) For the purpose of a test for determining alcohol concentration, the specimen of breath or blood shall be taken within 2 hours after the person accused is apprehended.

"We have consistently recognized that the statutory provisions enacted to enforce the State's fight against drunken driving, namely Md. Code . . . § 10-302 to -309 of the Courts and Judicial Proceedings Article and § 16-205.1 of the Transportation Article, were enacted for the protection of the public and not primarily for the protection of the accused." Motor

6                Section 16-813, which applies to individuals who hold licenses to operate commercial vehicles, provides:

(a) Driving, operating, etc., of vehicle prohibited. – An individual may not drive, operate, or be in physical control of a commercial motor vehicle while the individual has any alcohol concentration in the individual's blood or breath.

(b) Refusal to take chemical test. – A person who drives, operates, or is in physical control of a commercial motor vehicle while having alcohol in the person's system or who, subject to § 16-205.1 of this title, refuses to take a chemical test to determine the alcohol concentration, shall be placed out-of­service for the 24-hour period immediately following the time the police officer or employer detects alcohol in the driver's blood or breath.

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