MVA Cases and Other Sundry Matters

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Vehicle Admin. v. Shrader, 324 Md. 454, 464, 597 A.2d 939, 943 (1991); see State v. Moon, 291 Md. 463, 477, 436 A.2d 420, 427 (1981), cert. denied, 469 U.S. 1207, 105 S. Ct. 1170,

84 L. Ed. 2d 321 (1985).

The DR-15 Form, which Officer Mondini read to Atterbeary and which Atterbeary

later read for himself, advises individuals suspected of driving while intoxicated of the

consequences of refusing to submit to testing for blood alcohol concentration. There is an

automatic 120-day suspension for a test refusal. See Md. Code § 16-205.1(b) of the Transp.

Art. If an individual submits to the test and the result is an alcohol concentration in excess

of the statutory limit, the suspension for a first offense is forty-five days, or ninety days for a second or subsequent offense.7 See id. The language of the statute, which allows suspects

to withdraw initial refusals to take the test, reflects the legislative policy in favor of obtaining

test results:

(g) Withdrawal of initial refusal to take test; subsequent consent. – (1) An initial refusal to take a test that is withdrawn as provided in this subsection is not a refusal to take a test for the purposes of this section.

(2) A person who initially refuses to take a test may withdraw the initial refusal and subsequently consent to take the test if the subsequent consent:

7 The threshold blood alcohol level for suspension of a drivers license was reduced from 0.10 to 0.08 by Chapters 4 and 5 of the 2001 Maryland Laws. See Md. Code (1977, 1999 Repl. Vol., 2001 Supp.) § 16-205.1(b) of the Transp. Art. We refer to the older version of the law as explicated in the DR-15 Form provided to Atterbeary because the revised version did not take effect until September 30, 2001, and the General Assembly clearly stated that the alterations were to be construed only prospectively. See 2001 Md. Laws, ch. 4 and 5, § 2.

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(i)    Is unequivocal;

(ii)    Does not substantially interfere with the timely and efficacious administration of the test; and

(iii)    Is given by the person:

1.     Before the delay in testing would materially affect the outcome of the test; and

2.     A. For the purpose of a test for determining alcohol concentration, within 2 hours of the person's apprehension; . . .

Md. Code, § 16-205.1(g) of the Transp. Art.; see Embrey v. Motor Vehicle Admin., 339 Md. 691, 697, 664 A.2d 911, 914 (1995)(quoting Motor Vehicle Admin. v. Vermeersch, 331 Md.

188, 194, 626 A.2d 972, 975 (1993)). A person, nevertheless, cannot be compelled to submit

to a chemical test for intoxication. See Md. Code, § 10-309, Cts. & Jud. Proc. Art.8

Although Section 16-205.1 does not specifically provide that an individual suspected of or arrested for drunk driving has a right to confer with counsel prior to deciding whether

to submit to a breathalyzer test, we have held:

the due process clause of the Fourteenth Amendment, as well as Article 24 of the Maryland Declaration of Rights, requires that a person under detention for drunk driving must, on request, be permitted a reasonable opportunity to communicate with counsel before submitting to a chemical sobriety test, as long as such

8 There are exceptions to the rule against compulsion which apply in limited circumstances. A person will be compelled to take the test when the individual was involved in a motor vehicle accident causing death or life threatening injuries to another and the police officer has reasonable grounds to believe that the person was driving or attempted to drive while intoxicated. See Md. Code, § 16-205.1(c) of the Transp. Art. In addition, Section 10- 305(c) of the Courts and Judicial Proceedings Article provides, "[a]ny person who is dead, unconscious, or otherwise in a condition rendering him incapable of test refusal shall be deemed not to have withdrawn consent," and thus may be compelled to submit to a test under Section 16-205.1(d) of the Transportation Article.

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attempted communication will not substantially interfere with the timely and efficacious administration of the testing process.

Sites v. State, 300 Md. 702, 717-18, 481 A.2d 192, 200 (1984). The limited right to confer

or attempt to confer with counsel prior to deciding whether to submit to a breathalyzer test as announced in Sites was not meant to give suspected drunk drivers the ability to postpone administration of the test in order to achieve more favorable results. See Sites, 300 Md. at 714, 481 A.2d at 198 (quoting People v. Gursey, 239 N.E.2d 351, 353 (N.Y. 1968))("The privilege of consulting with counsel concerning the exercise of legal rights, should not,

however, extend so far as to palpably impair or nullify the statutory procedure requiring

drivers to choose between taking the test or losing their licenses."). Rather, we explicitly

stated:

if counsel cannot be contacted within a reasonable time, the arrestee may be required to make a decision regarding testing without the advice of counsel. We emphasize that in no event can the right to communicate with counsel be permitted to delay the test for an unreasonable time since, to be sure, that would impair the accuracy of the test and defeat the purpose of the statute.

Id. at 718, 481 A.2d at 200. Thus, our decision in Sites only recognized a due process right so that an individual who requests to consult with counsel for the purpose of receiving advice as to whether to submit to a breathalyzer test, must be permitted a reasonable opportunity to do so. See id. at 712, 481 A.2d at 197 (explaining that prior to being formally charged, there can be no attachment of the Sixth Amendment right to counsel)(citing Webster v. State, 229
Md. 581, 474 A.2d 1305 (1984)); see also Darrikhuma v. State, 81 Md. App. 560, 571, 568
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A.2d 1150, 1155 (1990)(explaining that under the holdings of Sites and Brosan v. Cochran,

infra, 307 Md. 662, 516 A.2d 970 (1986), "a person arrested for drunk driving has a right

to consult with an attorney prior to formulating a decision on whether or not to take a

breathalyzer test – if that person makes such a request to consult with an attorney")(emphasis in original). Accordingly, "[w]e recognized in Sites neither a right of counsel in the Fifth nor Sixth Amendment sense, but rather a deprivation of the right of due process by the unnecessary denial of a specific request for counsel." McAvoy 314 Md. at 519, 551 A.2d at 880.

In order to protect the licensee's due process right, the right to consult with counsel prior to deciding whether to submit to a breathalyzer test must be meaningful and comport

with traditional notions of essential fairness. While there still exists an unrelenting desire "to

rid our highways of the drunk driver menace," Willis v. State, 302 Md. 363, 370, 488 A.2d

171, 175 (1985), a "default" refusal to submit to the test cannot be permitted to stand on

these facts.

There is no bright line rule which will effectively ensure that the due process right to

communicate with counsel prior to submitting to a breathalyzer test as recognized in Sites is

heeded in all circumstances without risking being overbroad or under-inclusive. Instead,

determining whether an individual has been denied his or her due process right to

communicate with counsel prior to submitting to a breathalyzer test requires a case-by-case

analysis of the facts and circumstances involved. See Sites, 300 Md. at 718, 481 A.2d at 200.

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We have provided some guidance as to what types of communication would be considered an exercise of the Sites due process right to communicate with counsel. For example, in Brosan v. Cochran, 307 Md. 662, 516 A.2d 970 (1986), we held that an

individual who timely requests to consult with an attorney and have the attorney administer

an independent breathalyzer test may do so in order to make an informed decision as to whether to submit to the test administered by the police. Brosan, 307 Md. at 673-74, 516 A.2d at 976. We further commented that the Sites due process right may encompass telephonic contact and / or face-to-face consultation. See id. at 669, 516 A.2d at 974. The

due process right, however, does not confer upon suspects the right to be informed that they

can have a preliminary test performed by a non-law enforcement person prior to deciding whether to submit to the official test administered by the police. See Darrikhuma, 81 Md.

App. at 572-74, 568 A.2d at 1155-57. Nevertheless, we note that in requesting to confer with

counsel, a suspected drunk driver may seek advice upon any aspect of the DR-15 Form,

which in addition to advising individuals of the consequences of a test refusal, sets forth the

sanctions for having a blood alcohol concentration in excess of the statutory limit, explains

the administrative review process, and advises of the potential disqualification of a suspected

drunk driver's Commercial Driver's License for a test refusal.

In our analysis of the case at bar, the determinative question is whether Officer

Mondini's conclusion that Atterbeary's unwillingness to sign the form and his repeated

requests for an attorney constituted a refusal to submit to the test, is correct. At the hearing

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before the ALJ, Officer Mondini testified that Atterbeary initially said he would take the

breathalyzer test. Atterbeary, however, thereafter asked to speak to an attorney after he read

the DR-15 Form. When the officer asked for Atterbeary's attorney's name and telephone

number, Atterbeary stated he did not have an attorney at the moment. Officer Mondini

continued to ask Atterbeary to sign the form, and each time Atterbeary asked to speak with

a lawyer. As indicated in the record, approximately twenty minutes elapsed from the time Atterbeary orally stated that he would submit to the breathalyzer test to the point in time

where Officer Mondini determined that Atterbeary's refusal to sign the form constituted a

refusal to take the test. Atterbeary challenges this determination–he states that he never

refused to take the breathalyzer test.

As in every case, the MVA bears the burden of proving that Atterbeary refused to take the breathalyzer test through his conduct. See Borbon v. Motor Vehicle Admin., 345 Md.

267, 280, 691 A.2d 1328, 1334 (1997). A refusal of a breathalyzer or other chemical analysis test "is complete at the moment it is communicated to the officer." Motor Vehicle Admin. v. Gaddy, 335 Md. 342, 348, 643 A.2d 442, 445 (1994).

In the present case, the officer equated Atterbeary's unwillingness to sign the form

with a refusal to take the test. Atterbeary's decision to refrain from signing the form before

having the opportunity to consult with an attorney, however, did not change the fact that he had orally agreed to submit to the test before reading the DR-15 Form for himself, and

consent is implied in the statute. The statute itself contains no language imposing an express

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written consent requirement. There is absolutely no language reflecting any intent on the part

of the Legislature to mandate that a driver must signify consent on a written form. Rather,

individuals who drive in Maryland are "deemed to have consented . . . to take a test if the

person should be detained on suspicion of driving or attempting to drive" under the influence

of drugs or alcohol. Md. Code, § 16-205.1(a)(2) of the Transp. Art.

The MVA advocates that an individual's consent or refusal to submit to the breathalyzer test must be reduced to writing for the purpose of providing evidentiary proof.

Although a written statement may serve as strong evidence of the drunk driving suspect's

willingness or unwillingness to submit to the test and potentially makes easier the MVA's

ability to make a prima facie case before an ALJ, we decline to impose such a requirement.

In the context of a valid waiver of the privilege against self-incrimination in custodial

interrogations, which are subject to closer scrutiny than the present case because of

constitutional mandate, the Supreme Court has clearly stated that the Miranda decision did

not hold that "an express statement is indispensable to a finding of waiver." North Carolina

v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286, 292 (1979)("An express written or oral statement of waiver of the right to remain silent or of the right to counsel is

usually strong proof of the validity of that waiver, but is not inevitably either necessary or

sufficient to establish waiver.") Thus, a person may waive his or her Fifth Amendment

privilege against self-incrimination after orally receiving his or her Miranda warnings and

orally indicating a w illingness to make a statement. See In re Fletcher, 251 Md. 520, 526-29,

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248 A.2d 364, 368-69 (1968)(finding a knowing and intelligent waiver where defendant

orally received his Miranda warnings and orally waived his privilege against self‑

incrimination and his right to retain appointed counsel); State v. Purvey, 129 Md. App. 1, 17-

19, 740 A.2d 54, 63-64 (1999)(finding that for a valid waiver of the privilege against self‑

incrimination it is unnecessary to reduce the waiver of rights and subsequent statement to

writing).

Both parties agree that Atterbeary orally agreed to submit to the breathalyzer test.

Once Atterbeary requested to read the DR-15 Form and stated that he wanted to consult with

counsel, Officer M ondini never asked Atterbeary if he still wished to take the test; the officer

only asked Atterbeary to sign the form. Similarly, no attempts were made to administer the

test to Atterbeary. Based on this record, it would appear that any refusal to obtain

breathalyzer test results was due to the officer's haste in concluding for himself that

Atterbeary had withdrawn his initial consent and now refused to submit based on his

invocation of the Sites right to counsel, rather than from either an express or implied refusal

on the part of Atterbeary.

In rendering his decision, the ALJ determined that Atterbeary had refused to take the test because he asked for an attorney in response to all questions put to him:

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.

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In so doing, the ALJ failed to acknowledge that Atterbeary had declared that he would

submit to the test. Instead, the ALJ concluded that based on Atterbeary's repeated requests

to speak with an attorney that he thereby refused to take the breathalyzer test. Logical reasoning simply cannot be strained in order to support such a leap, for when an individual

chooses to exercise his or her right to contact counsel under Sites, the decision to do so is,

at that point, neither necessarily a conditional nor a per se refusal to submit to the

breathalyzer test. As noted earlier at supra page 16, the DR-15 Form addresses many matters

in addition to the consent to take the test. Atterbeary's request to speak to an attorney,

without more, may not logically or exclusively be construed to relate only to the testing reference in the form advisement and, thus, be interpreted as an implied refusal of consent

to be tested or a withdrawal of consent. The exercise of the Sites right may be treated

separately and distinctly from the assessment of whether an individual has refused to submit

to a breathalyzer test.9 Therefore, on the facts and circumstances of this case, there was

insufficient evidence to conclude that Atterbeary refused to submit to the breathalyzer test.

C.        Driving or Attempting to Drive Under Section 16-205.1(a)(2).

9 In its decision below, the Circuit Court emphasized the importance of making meaningful an individual's exercise of the Sites right. Although mindful that suspected drunk drivers may "thwart or attempt to thwart the giving of the intoximeter test...by pushing the two-hour limit," the court found that depending on the facts and circumstances of the case, an officer may have to take steps to help facilitate the individual's expressed desire to contact an attorney. For example, the court recognized that while "the State has no obligation to provide information specific to an arrestee of a name, or address, or phone number of an attorney," the officer should have made available to Atterbeary a phone book and a phone to use to place a call to whomever could help him.

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Respondent's primary contention in his cross-appeal is that he was not driving or

attempting to drive as set forth in Section 16-205.1(a)(2) at the time Officer Mondini

responded to the fire and rescue call at 3121 Automotive Boulevard because he was legally

parked on the side of the road and not moving the vehicle. On this basis, he asserts that the

implied consent provision for blood alcohol content testing was not triggered by this incident. 10 We disagree with respondent's contention, however, because Officer Mondini

responded to the scene and found respondent sitting awake in the driver's seat with the keys in the ignition and the car engine running.

The statute defines the term "drive" as used throughout Maryland's vehicle law as meaning "to drive, operate, move, or be in actual physical control of a vehicle, including the

exercise of control over or the steering of a vehicle being towed by a motor vehicle." Md.

Code, § 11-114 of the Transp. Art. (emphasis added). Respondent urges that our decision

concerning what constitutes being in "actual physical control of a vehicle" as set forth in

Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993) controls our decision in this case and

mandates the conclusion that Atterbeary was not driving or attempting to drive his vehicle

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