MVA v. Shepard

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Motor Vehicle Administration v. Scott H. Shepard No. 88, September Term, 2006. ADMINISTRATIVE LAW AND PROCEDURE JUDICIAL REVIEW: The administrative law judge s finding that respondent violated § 16205.1 of the Transportation Article was supported by substantial evidence to show that the officer possessed reasonable grounds to request an alcohol concentration test where the administrative law judge found that respondent had an odor of alcohol on his breath as well as watery and bloodshot eyes, respondent admitted using alcohol earlier in the evening, respondent was driving at an excessive speed over 132 miles per hour, and respondent performed poorly on field sobriety tests. ADMINISTRATIVE LAW AND PROCEDURE HEARINGS AND ADJUDICATIONS DRIVER S LICENSE SUSPENSIONS: Under § 16-205.1 of the Transportation Article, the reasonable grounds required for an officer to request a licensee to submit to alcohol concentration testing is equivalent to reasonable articulable suspicion ; the term reasonable grounds does not require an officer to either possess probable cause to believe a driver is intoxicated or show that the driver is intoxicated by a preponderance of the evidence. In the Circu it Court for M ontgom ery County Case No. 269435 IN THE COURT OF APPEALS OF MARYLAND No. 88 September Term, 2006 MOTOR VEHICLE ADMINISTRATION v. SCOTT H. SHEPARD Raker Cathell Harrell Battaglia Greene Eldridge, John C. (Retired, specially assigned), Wilner, Alan M. (Retired, specially assigned), JJ. Opinion by Raker, J. Greene and E ldridge, JJ., Concur. Filed: May 15, 2007 This case involves the suspension of a driver s licence pursuant to Md. Code (1977, 2006 Rep. Vol., 2006 Supp.) § 16-205.1 of the Transportation Article.1 Respondent s license was suspende d after he re fused to take an alcohol concentration test following a traffic stop for speeding. Respondent challenged the suspension before the Office of Administrative Hearings. The Administrative Law Judge ( ALJ ) found respondent to be in violation of § 16-205.1. The Circuit Cou rt for Montgom ery County vacated that ruling. Because we find that the administrative ruling was based on substantial evidence and was not rendered on the basis of an erroneous conclusion of law, we shall reverse. I. Section 16-205.1 of the Transportation Article, commonly known as Maryland s Implied Consent Law, provides the statutory structure for suspending the license of a driver who refuses to submit to testing for alcohol concentration. Section 16-205.1(a)(2) states as follows: Any person who drives or attem pts to drive a m otor vehicle on a highway or on any private property that is used by the public in general in this State is de emed to h ave cons ented, subje ct to the provisions of §§ 10-302 through 10-309, inclusive, of the Courts and Judic ial Proceed ings Article, to take a test if the person should be detained on suspicion of driving or attempting to drive while u nder th e influe nce of alcoho l . . . 1 Unless otherwise noted, all subsequent statutory references herein shall be to Md. Code (1977, 2006 Rep. Vol., 2006 Supp.) of the Transportation Article. Section 16-205.1(b)(2) requires a police officer who has reasonable grounds to believe that a person has been driving or attempting to drive a motor vehicle while under the influence of alcohol to: (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 of a restrictive license unless the person participates in the Ignition Interlock System Prog ram und er § 16-40 4.1 of this title, that shall be imposed for refusal to take the test and for test results indicating an alcohol concentration of 0.15 or more at the time of testing; and (v) Advise the person of the additional criminal penalties that may be imposed under § 27-101(x) of this article on conviction of a violation of § 21-902 of this article if the pe rson know ingly refused to take a test arising out of the same circumstances as the viola tion. Notwithstanding the implied consent to take a test, a driver is g enerally not com pelled to submit to testing to determine alcohol concentration. § 16-205.1(b)(1). Section 16- 205.1(b)(3), howev er, directs a po lice officer to respond to a driver s refusal to take a test by seizing the person s driver s license, serving a temporary order of suspension, issuing a temporary driver s license, and informing the driver of his or her right to a hearing and possible administrative sanctions. -2- Section 16-205.1(f)(8)(i) requires the Motor Vehicle Administration ( M VA ) to suspend an individual s driver s license if the ALJ makes certain findings at an administrative hearing. The section states as follows: After a hearing, the Administration shall suspend the driver s license or privilege to drive of the person charged under subsection (b) or (c) of this section if: 1. The police officer who stopped or detained the person had reasonable grounds to believe the person was drivin g or attempting to drive w hile 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; 2. There was evidence of the use by the person of alcohol, any drug, any combination of drugs, a combination of one or more drugs and alcohol, or a controlled dangerous substance; 3. The police officer requested a test after the person was fully advised, as required under subsection (b)(2) of this section, of the administrative sanctions that shall be imposed; and 4. A. The person refused to take the test; or B . A test to determine alcohol concentration was taken and the test result indicated an alcohol concentration of 0.08 or more at the time of testing. -3- An aggrieved driver whose license has been suspended may seek judicial review of the administrative decision befo re a circuit court of this State. § 16-205 .1(j). II. Responden t s license was suspen ded pursuant to § 1 6-205.1(f)(8)(i) following a hearing before the Office of Administrative Hearings. At the hearing, the ALJ issued an opinion and order based upon a form DR-15A2 filed by the arresting officer and the testimony of respondent. Th e DR-15A indic ated that at 1:03 a.m., on October 7, 2005, Gaithersburg City Police Officer Finch saw respondent driving in excess of 132 miles per hour, that he stopped the veh icle, there was a strong odor of alcohol on respondent s breath, respondent had bloodshot and watery eyes, respondent blew a preliminary breath test of 0.10, and respondent admitted drinking two beers. Based on this evidence, the ALJ made the following findings of facts. On October 7, 2005, at 1:03 a.m., Officer Finch observed a Porsche Boxster traveling at a speed in excess of 132 miles per hour on Route I-270 in Montgomery County, Maryland. The officer initiated a traffic stop, at which time he identified respondent as the driver of the Porsche. Respo ndent h ad a stro ng odo r of alco hol on h is breath , as well as watery and 2 Form DR-15A, Officer s Certification and Order of Suspension, contains general factual information about the driver and the incident giving rise to a license suspension under § 16-205.1. Section 16-205.1(b)(3) requires that the officer personally serve the order of suspension upon the driver if the person refuses to take the chemical te st or if the test resu lts in an alcohol concen tration of 0.08 or higher. -4- bloodshot eyes. Officer Finch asked respondent if he had been drinking, and respondent stated that he had two beers earlier that evening. After the officer administered a preliminary breath test, respondent perform ed a standa rd field sobriety test, which included a horizontal gaze nystagmus test, a walk and turn test, and a one leg stand test. Officer Finch arrested respondent for driving under the in fluence o f alcohol, an d indicated in his report that responde nt failed the f ield sobriety test. Back at the police station, Officer Finch requested that respondent take a breathalyzer test to determine his alcohol concentration level. The officer advised respondent of administrative and criminal sanctions he would face for either refusing to submit to testing or submitting to testing where the results showed an alcohol concentration level above the legal limit. Respondent signed a form DR-15,3 thus acknowledging that the officer advised him of the p ossible s anction s he w ould fa ce for re fusing the test. Respondent refused the breath test. Pursuant to the statute, and acting on behalf of the MVA, Officer Finch served an order of suspension of respondent s driver s license. At the administrative hearing, the ALJ determined that Offic er Finch h ad reason able grounds to believe respondent had been driving under the influence of alcohol on the night in question. The ALJ ruled orally as follows: 3 Form DR-15, Advice of Rights and Administrative Penalties fo r Refusa l to Subm it to a Chem ical Tes t Statem ent, is derived from § 16-205.1(b) and contains warnings required under Maryland s Implied Consent Law. -5- I ve considered the evidence and the testimo ny presented in this case, and I find by a preponderance of the evidence the following facts. The p olice office r who stop ped or de tained you, Mr. Shepard, did h ave reasonable grounds to believe that you were driving or attempting to drive a motor ve hicle while under the influence of alcohol because when he first came upon you, you were speeding 1 32 miles per hour, and there was further evidence of the use of a lcohol base d upon th e fact that it was early morning hours, you had an odor of alcohol, you had bloodsho t, watery eyes, the standard field sobriety tests were performed unsatisfactorily, and you admitted drinking. *** The issue was alcohol in this case pretty clearly. And in any event the issue is not pro bable c ause. That is the issue in a criminal proceeding . The issue in this case is reas onable grounds. The reasonable grounds as stated by the officer are much more th an suf ficient. He has stated more than sufficient reasonab le grounds to request that you take a test. That s what he was doing here. The standard field sobriety tests are identified contrary to counsel s statement. Horizontal gaze nystagmus, walk and turn, one leg stand, he says that those tests were done. H e said based o n the res ults arres ted. There is also a reasonable inference that I am going to draw that based upon that language that the tests were done not to his satisfaction which is why he arrested you for driving while under the influence of alcohol. The officer did fully advise you of the sanctions to be impo sed, reques ted that you take a test which you refused. Therefore, you are in violation of § 16-205.1 The ALJ filed written findings of fact and co nclusio ns of la w, in w hich sh e stated § 16-20 5.1 was violated ba sed upon the follow ing: early A.M. h ours, odor a lcohol, bloodshot, watery eyes, SFST S [standa rd field sob riety tests] perfor med u nsatisfa ctorily, adm itted drin king. The ALJ im posed a one year suspension of respondent s driver s license, stayed on the -6- condition that he participate in the Ignition Interlock Program for a period of eighteen months. Respondent filed a petition for ju dicial review in the Circuit Court for M ontgomery County. Before the Circuit Court, respondent argued as follows: [T]he operative allegations upon which the administrative law judge premised his decision w ere, standard field sobriety tests, the nystagmus gaze, walk and turn, one leg stand were done, based on results, arrested. We argued before the administrative law judge, and we argue here, that those test results, that are not enumerated in the certifica tion of the o fficer, do n ot constitute competent evidence upon which an administrative agency may base its decision that a reasonable person would have believed that the individual in question had operated a motor vehicle while im paired. T hat is the central th rust of o ur argu ment. Respondent maintained that an officer m ust state the fa ctual basis upon which he concludes that field sobriety tests are not done to his satisfaction. He argued that the evidence presented and the inferences drawn b y the ALJ were incompetent and therefore, the factual decision of the ALJ was not based upon substantial evidence. The Circuit Court agreed. The Circuit Court vacated the ruling after determining that the ALJ ba sed her rulin g solely on the results of the field sobriety test. The cou rt concluded that the results of the sob riety test constituted in compete nt evidenc e because particular fac ts regarding respondent s performance on the field sobriety test were not identified on the form DR-15A. The court reasoned as follows: He expressly states th e basis of his ruling on the unsatisfactory performance of enumerated roadside sobriety tests, we have no clue of what that was. And I don t believe the law is that the -7- Court should say, well, because the defendant failed, and in any kind of test, because the blood test failed or you could come in on a criminal case and say, because the DNA indicated you were there without getting any resu lts, without saying what it was at all . . . But what we have here is unsatisfactory performance. Now, we hear it all the time in guilty pleas, but that s an entirely different scenario. But not w hen this C ourt is here to m ake its decision based upon, look at the findings of the administrative law judge, and says it is not my role to sit here and decide that a finding of stepping off line and weaving, whethe r that s reason able grounds to make an arrest or not, that is not the role of this Court to go back like an instant replay, second -guess that, and say that shouldn t have been reaso nable grounds. Th at s just not the role of this Court. But this Court doesn t have before it what the grounds w ere at all. And for those re asons, the fin dings of the administrative law judge w ill be vac ated, an d the pe tition is su stained . The MVA filed a petition for a writ of certiorari to this C ourt. We granted the petition to address the following question: Did the ALJ have sub stantial evidence to find the arresting officer who stopped Shepard had reasonable grounds to request a chemical breath test under [§ 16-205.1(f)(7)(i)(1)], when the ALJ considered that Shepard was stopped for speeding 132 miles per hour, was observed at the time of his stop to have a strong odor of an alcoholic beverage on his breath, as well as watery bloodshot eyes, had a preliminary breath test result of 0.10 and was arrested based on the result of field sobriety tests, which the officer did not describe in detail in his written statements? MVA v. Shepard , 396 Md. 9, 912 A.2d 646 (20 06). -8- III. Before this Court, the MV A argues that there was substantial evidenc e to support the ruling of the ALJ that respondent violated § 16-205.1 . The M VA arg ues that the sta tute does not require an officer to provide a detailed written description of how a person performs on a field sobriety test and that the DR-15A upon which the ALJ relied contained sufficient information and reasonable grounds to ask respondent to take the alcohol co ncentration test. Alte rnatively, the MV A argue s that even w ithout the resu lts of the field sobriety test, the officer s certification indicated that respondent was traveling at an excessive rate of speed, had a strong odor of alcohol on his breath, ha d watery and bloodsho t eyes, and adm itted to drinking, all of which are indicia of intoxication. In his initial argument, as noted in h is brief before this Court, respondent states that the ALJ found that the only bases upon which the officer had reasonable grounds to believe that Shepard was attempting to drive while under the influence is articulated in the Administrative Law Judge s written finding of fact, i.e., that Shepard was speeding at 132 miles per hour. Somewhat inconsistently, respondent then argues that the ALJ relied solely, and improperly, on the conclusory statement of the o fficer as to th e results of th e field sobriety test. Respondent s second argument is that the ALJ applied the wrong legal standard. In his brief before this Court, respondent states that reasonable grounds as used in the statu te mean s prob able ca use. At oral argum ent, based u pon this C ourt s ruling in Volodarsky v. Tarachanskaya, 397 Md. 291, 916 A.2d 991 (2007), a case filed after -9- respondent s brief, he maintained that the term reasonable grounds as seen in § 16- 205.1 mean s a pre ponde rance o f the ev idence standa rd. IV. We consider first whether the evidence at the administrative hearing was sufficient for the ALJ to conclud e that Off icer Finch p ossessed th e reasonab le ground s necessary to request a test to determine respond ent s alcohol concentration. We hold that the ALJ s ruling was supported by substantial evidence to show that the off icer possess ed the requ isite reasonable grounds required by § 16-205.1. Maryland courts play a limited role when reviewing adjudicatory decisions of administrative agenc ies. See Fowler v. MVA, 394 Md. 331, 342, 906 A.2d 347, 353 (2006). The Maryland Administrative Procedure Act, Md. Code (1984 , 2004 R epl. Vo l., 2006 S upp.) § 10-201 et seq. of the State Government Article, sets out the framework for judicial review of administrative agency decisions, as follows: Decision In a proceeding under this section, the court ma y: (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 p etitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitu tional; -10- (ii) exceeds th e statutory autho rity 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 compete nt, material, and substa ntial evidence in light of the entire record as submitted; or (vi) is arb itrary or cap ricious. Md. Code (1984, 2004 R epl. Vo l., 2006 S upp.) § 10-222(h) of the State Government Article. Under the Adm inistrative Proc edure A ct, a court s role in reviewing an agency adjudicatory decision is very nar row. Aviation Administration v. Noland, 386 Md. 556, 570-71, 873 A.2d 1145, 1154 (20 05). In Board of Physician v. Banks, 354 Md. 59, 729 A.2d 376 (1999), we discussed the standard of review of administrative agency decisions. We noted as follows: A court s role in reviewing an administrative agency adjudicatory decision is narro w; it is limited to d etermining if there is substantial evidence in the record as a whole to supp ort the agency s find ings and c onclusion s, and to dete rmine if the administrative decision is premised upon an erroneous conclusion of law. In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. A reviewing court should defer to the agency s fact-finding and drawing of inferences if they are supported by the record. A reviewin g court must review the agenc y s decision in th e light most favorable to it; . . . the agency s decision is prima facie correct and presumed valid, and . . . it is the agency s pro vince to -11- resolve conflicting evidence and to draw inferences from that eviden ce. Id. at 67-68, 729 A.2d a t 380-8 1 (intern al citation s and q uotation s omitte d). See also MVA v. Illiano, 390 Md. 265, 274-75, 888 A.2d 329, 335 (2005). A court may set aside an agency s factual finding only when the finding is unsupported by competent, material, and substantial evidence in light of the entire record as submitted. Spencer v. Board of Pharmacy, 380 Md. 515 , 529, 846 A.2d 3 41, 349 (2004). In the case sub judice, the substantia l evidence test was not applied properly by the Circuit Court to the ALJ s final decision. The ALJ did not err in concluding that respondent violated § 16-205.1. The ALJ s f actual findings were supported by substantial ev idence to support the finding that the police officer who initiated the traff ic stop had r easonab le grounds to believe respondent was driving a motor vehicle while under the influence of alcohol. Contrary to the conclusion of the Circuit Court, the record reflects that the ALJ considered the totality of the officer s observations when she determined whether he possessed the requisite reasonable grounds. In the judge s oral findings of fact, she stated that she considered the odor of alcohol, resp ondent s p hysical conditio n, his admitted use of alcohol earlier that evening, his excessive speed of 132 miles per hour, and his performance on the field sobriety te sts. See c.f., State v. O rvis, 465 A.2d 1361, 1362 (Vt. 1983) (holding that a mild odor of alcohol, defendant s excited state and his admission of alcohol consumption, in conjunction with the fact of the 3:00 a.m. au tomobile accident and admitted -12- operation, would appear to provide reasonable grounds for further inquiry by a law enforcement of ficer ). Responden t s assertion that the ALJ considered only the factua lly unsupporte d field sobriety test or the fact that respondent was trave ling in exce ss of 132 miles per ho ur is simply wrong and unsupported by the record. The Circuit Court s conclusion is erroneous as well. The Circuit Court determined that the ALJ based her decision exclusively on the results of the field s obriety test. The c ourt foun d that becau se the field sobriety test results were not explain ed in suffic ient detail, the ruling was based on incompetent evidence and could not be sustained. The test is whether there is substantial evidence to support the decision of the a gency. As the ALJ made clear, she considered the combined evidence at the hearing more than su fficien t . . . to request that [respon dent] take a test. She did not simply consider the field sobriety test and the evidence she considered was clearly more than sufficient to request respondent to take a test to determine his alcohol concentration. V. We turn now to respondent s argument that the ALJ applied the wrong legal standard in construing the meaning of reasonable grounds as used in § 16-205.1. Based on our recent opinion in Volodarsky, 397 Md. 291, 916 A.2d 991, he argues that reaso nable grounds means a prepond erance of the eviden ce standard or at the very least, probable -13- cause. We disag ree and ho ld that the term reasonab le ground s as used in § 16-205.1 means reasonab le articulable suspicion and not preponderance of the evidence or probable cause. In interpreting a statute, we have stated repeatedly that the cardinal rule of statutory construction is to ascertain a nd effec tuate the intent of the Legislature. See Oakland v. Moun tain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006). In Mountain Lake, we explained as follows: In ascertaining legislative intent, we first ex amine the plain language of the statute, and if the p lain langua ge of the sta tute is unambiguous and consistent with the statute s apparent purpose, we give e ffect to the statu te as it is w ritten. If a statute has more than one reasonable interpretation, it is ambiguous. If the language of the statute is ambiguous, we resolve the ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose. We consider both the ordinary meaning of the language of the statute and how that language relates to the overall meaning, setting, and purpose of the act. We avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense. We construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, mean ingless, o r nugat ory. Id. (internal citations omitted). The United S tates Supre me Cou rt addressed the threat to public safety caused by drunk drivers in South D akota v. N eville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). The Court stated as follows: The situation underlying this case that of the drunk driver occurs with tragic frequency on our Nation s highways. The carnage caused by drunk drivers is well documented and needs no detailed recitation here. This Co urt, although not having the -14- daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U.S. 432, 439 (1957) ( The increasing slaughter on our highways, most of w hich shou ld be avoidable, now reaches the astounding figures only heard of o n the battlefie ld ); Tate v. Short, 401 U.S. 395, 401 (1971) (B LACKMUN, J., concurring) (deploring traffic irresponsibility and the frigh tful carnag e it spews u pon our h ighways ); Perez v. C ampbe ll, 402 U.S. 637, 657, 672 (1971) (B LACKMUN, J., concurring) (footnote omitted) ( The slaughter on the highways of this Nation exceeds the death toll of all our wars ); Mackey v. Montrym, 443 U.S. 1, 17-19 (1979) (recognizing the compelling interest in highway safety ). Neville, 459 U.S. at 558-59, 102 S.Ct. at 920. In response to the public concern about the dangers of drunk driving, the Maryland General Assembly rewrote § 16-205.1, referring to the rewritten statute as Maryland s implied consent and administrative per se law against drunk driving. See Fowler, 394 Md. at 343 n .10, 906 A.2d a t 354 n.1 0. The statute was ena cted in 1989 to allow a d river s license to be suspended promptly for suspected drunken driving if the person refused a test to determine alcohol concentration. See Motor Vehicle Admin. v. Shrader, 324 Md. 454, 460-62, 597 A.2d 939, 941-43 (1991). The purpose of the statute was to reduce the incidence of drunk driving and to protect public safety by encouraging drivers to take alcohol concentration tests; the statute was not meant to protect d rivers. MVA v. Richards, 356 Md. 356, 374, 739 A .2d 58, 68 (1999). -15- Section 16-205.1 does not require an arrest to precede an officer s request for the driver to take a test. 4 Richards, 356 M d. at 374, 73 9 A.2d a t 68 (stating tha t § 16-205.1 requires that the police officer who stops or detains the individual to have reasonable grounds to believe the individual wa s driving or attempting to drive w hile under the influence of alcohol and does not require that the police officer have probable ca use to arrest). Rather, the statute requires that the person should be detained on suspicion of driving or attempting to drive while under the influence of alcoho l. § 16-205.1(a)(2). As we hav e noted in th e context of criminal cases, there are three types of police encounters: an arrest, an investigatory stop or detention, and a consensual encounter. Swift v. State, 393 Md. 139, 150, 899 A.2d 867, 873 (2006). An arrest requires probable cause; an investigatory detention, which is a seizure of lim ited duration, does not require probable cause but instead re quires reaso nable articulable suspicion; and a consensual encounter need not be su ppo rted by any level of susp icion. Id. Given the underlying pu rpose and plain language of § 16-205.1 requiring a detention and not an arrest, we conclude that the use of 4 Some of our sister states require an arrest before an officer may request a driver to take a chemical test. Those states have generally interpreted their implied consent, per se statutes to requ ire prob able ca use bec ause of the arre st requir emen t. See e.g ., State v. Collier, 612 S.E.2d 281, 284 (Ga. 2005) (holding that the Georgia implied consent law contemplates arrest, and theref ore requires probable c ause to con duct an alco hol conce ntration test); Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. 2003) (en banc) (noting that Missouri law requires an arrest supported by probable cause before an officer may conduct an alcohol co ncentration test); Pooler v. MVD, 755 P.2d 701, 702 (Or. 1988) (en banc) (noting that Oregon law requires an arrest supported by probable cause before an officer may request an alcohol con centration test). -16- the word detained, combined with the word suspicion, means reasonable articulable suspicion and not probable cause. Respondent argues alternatively that, based on our recent decision in Volodarsky, 397 Md. 291, 916 A.2d 991, the term reasonable grounds in § 16-205.1 means preponderance of the evidence. We disagree. Volodarsky was a child custody case in which one parent accused the other of child sexual abuse. Th e issue bef ore the Co urt was th e construction of Md. Code (1984, 2006 Repl. Vol.) § 9-101 of the Family Law Article. Section 9-101 requires, in any custody or visitation proceedin g, that, if the cou rt has reaso nable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court must determine whether abuse or neglect is likely to occur if custody or visitati on righ ts are gra nted to th at party. § 9-101(a). The statute states that, unless the court finds specifically that there is no likelihood of further child abuse or ne glect by the party, the court must either deny custody or visitation rights to that party or approve a supervised visitation arrangement that assures the safety and physiological, psycholo gical, an d emo tional w ell-being of the child. § 9-101(b). In holding that reasonable grounds means the same as preponderance of the evidence under § 9-101, we reasoned as follows: The two subsections of § 9-101 must be read together. Subsection (a) requires th at, if, in a custody or visitation proceeding, the court ha s reasonab le ground s to believe th at a child has been abused or neglected by a party to the proceeding, the court must determine whether abuse or n eglect is likely to occur if custody or v isitation rights are granted to the party. -17- Subsection (b) then states the consequence of the court s determination that reasona ble grounds for such a belief exist. In that event, the court must d eny custody or v isitation, excep t in a secure, supervised setting, unless it specifically finds that there is no likelihood of further ab use or neg lect by the pa rty. (Empha sis added). To require a specific fin ding that further abuse or neglect is not likely clearly implies that there must be some sort of finding or determination by the court that abuse or neglect likely occurred in the first instance. The question is whether, at a minimum, that finding must be made by at least a preponderance of the evidence. *** It defies logic and reason to permit a court to make what is essentially a finding of fact, especially one that may lead to the deprivation of a Constitutionally-based right of access to one s child, when th e court is unable to find, even by the slimmest margin, that the fact is m ore likely so than not. How can a court have reasonable grounds for it to believe that an act oc curred if it is not pe rsuade d, from whatever ev idence is properly before it, that the act more likely occurred than not? Under the Court of Special Appeals rationale, a co urt could fin d reasona ble grounds to believe that which, in its own mind, it does not believe because, in its view, the credible evidence does not support the fac t, and that strikes us as the antithesis of reason ablene ss. Volodarsky, 397 Md. at 304 -06, 916 A.2d at 99 9-1000 (emph asis in original). The decision req uired by a circu it court judge under § 9-101 of the Family Law Article and that of the police officer on the road under § 16-205.1 of the Transportation Article are very different. The Family Law Article requires the judge to make a finding of fact one which neces sarily mus t be b y a preponderance of the evidence. The police officer -18- on the road need only have suspicion of intoxication to justify further investigation and further detention under § 16-205.1. We pointed out in Volodarsky that the determination of reaso nable grounds fo r a belief can involve either an objective or subjective analysis, depending on the circumstances. Id. at 306, 916 A.2d at 1000. When a police officer is called upon to make a preliminary determination based on incomple te and often non-testimonial hearsay evidence as to whether probable cause or reasonable grounds or reasona ble suspicio n exists to justify some further step in an investigation, the officer may take the evidence at face value and simply decide whether, if true, it leads to a reasonable belief that an off ense w as com mitted. See id. (noting that an objective analysis is most often used in situations in which only a preliminary determination need be made, based on incomplete and often non-testimonial hearsay evidence ). The result of such a determination is not an ultimate find ing of fac t, but simply a basis for taking a further procedural step an arrest, a detentio n, a search, or, as in this case, a request to take a test to d etermine alc ohol conc entration. W hen a cou rt is called upon to make a judicial finding, a different analysis may be required. The court often must make credibility determ inations and w eigh the value o f the ev idence . Id. at 307, 916 A.2d at 100001. Because the judicial finding has preclusive effect, the court, unless required to use a higher standard, must find its conclusion supported by at least a preponderance of the evidence, for a nything le ss would nece ssarily be a rbitrary. Id. at 305-06, 916 A.2d at 1000. We are not dealing here with that kind of analysis. -19- As we have indicated, reasonab le groun ds mea ns less th an prob able ca use. Ipso facto, it does not mean preponderance of the evidence. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMER Y COUNTY REVERSED. C A SE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE RULING OF THE ADMINISTRATIVE LAW JUDGE PRES IDING OVER RESP OND ENT S LICENSE SUSPENSION HEARING. COSTS TO BE PAID BY RESPONDENT. -20- IN THE COURT OF APPEALS OF MARYLAND No. 88 September Term, 2006 _________________________________________ MOTOR VEHICLE ADMINISTRATION v. SCOTT H. SHEPARD ________________________________________ Raker Cathell Harrell Battaglia Greene Eldridge, John C. (Retired, Specially Assigned), Wilner, Alan M . (Retired, Specially Assigned), JJ. ________________________________________ Concurring Opinion by Eldridge, J. which Greene, J., joins. _________________________________________ Filed: May 15, 2007 Eldridge, J., concurring: I concur in the judgment and in Parts I through IV of the Court s opinion. I disagree, however, with Part V of the opinion. The issue discussed by the Court in Part V, namely whether the ALJ applied the wrong legal standard in construing the meaning of reasonab le grounds as used in § 16-20 5.1, is not properly before the Court because it was not raised before the administrative agen cy. Moreover, even if the issue were properly before us, the reasonab le grounds standard in a civil statute should be applied by the administrative trier of facts as a matter of common sense, without becoming entangled in the intricacies of criminal law and the law of arrest. The reasonableness standard has been applied by triers of fact in a multitude of civil proceedings without courts or agencies delving into the criminal law of arrests, detentions, police encounters, etc. I. It is a settled principle of Maryland administrative law that, in an action for judicial review of an adjudicatory administrative agency decision, the reviewing courts should decline to consider an issue not raised before the agenc y, Brodie v. Motor Vehicle Administration, 367 Md. 1, 4, 785 A.2d 747, 749 (2001). Chief Judge Bell for the Court explained in Department of Health v. Camp bell, 364 Md. 108, 123, 771 A.2d 1051, 1060 (2001): -2 Maryland Code (1984, 1999 Repl. Vol.) § 10-222(a) of the State Government Article provides that a party who is aggrieved by the final decision in a conte sted case is entitled to judicial review of the decision. Thus, it is the final decision of the final decision maker at the administrative level . . . that is subject to judicial review. Acc ordi ngly, the reviewing court, restricted to the record made before the admin istrative agen cy, see Cicala v. Disability Review Bd. for Prince George s County , 288 Md. 254, 260, 418 A.2d 205, 209 (1980), may not pass upon issues presented to it for the first time on judicial review and that are not encompassed in the final decision of the administrative agen cy. Stated diff eren tly, an appellate court will review an adjudicatory agency decision solely on the grounds relied upon by the agency. See County Counc il of Prince George s County v. Brandywine Enterprises, Inc., 350 Md. 339, 349, 711 A.2d 1346, 1350-51 (1998) and cases cited in note 1, supra. See, also, e.g., Board of Education v. Heister, 392 Md. 140, 147 n.5, 896 A.2d 342, 346 n.5 (2006) ( It is the function of the reviewing court to review only the materials that were in the record before the agency at the time it made its final decision, and an appellate court should not review a question which was interjected in the case in the circuit court); Motor Vehicle Admin istration v. Weller, 390 Md. 115, 128, 887 A.2d 1042, 1050 (2005) ( Because the issue of alleged error was not raised during the administrative proceeding, it was not properly raised in the judicial review proceeding, and therefore is not properly before us, quoting Cicala v. Disability Rev. Bd. for Prince George s Co., 288 Md. 254, 263, 418 A.2d 205, 210-211 (1980)); Rockville v. Woodmont C. C., 348 Md. 572, 582 n.3, 705 A.2d 301, 305 n.3 (1998) ( Judicial review of administrative decisions is limited to issues raised before the agency ); Insurance Commissioner v. Equitable , 339 Md. 596, 634, 664 A.2d 862, 881 (1995) ( W e have -3repeatedly pointed out that judicial review of administrative decisions is limited to the issues or grounds dealt with by the administrative agency ), and cases there cited. No issue concerning the interpretation or meaning of reasonable grounds as used in § 16-205.1 (majority slip opinion at 14) was ever raised or decided at the administr ative hearing in the instant case. Although counsel for the respondent Shepard, in oral argument before the ALJ, used both the phrase probab le cause and the statutory phrase reasonab le grounds in arguing that the police officer did not have a sufficient basis to believe that Shepard was driving his motor vehicle while under the influence of alcohol, counsel for Mr. Shepard made absolutely no argument with respect to the meaning of the phrase reasonab le groun ds. Furthermore, although the ALJ, in the oral ruling rejecting counsel s arguments, pointed out that the statutory standard was reasonab le grounds rather than probab le cause, the ALJ rendered no opinion or legal conclusion with respect to the meaning of the reasonab le grounds standard. It was not an issue at the administrative hearing but was raised for the first time in the Circuit Court. At the administrative hearing, on February 9, 2006, counsel for Mr. Shepard (Mr. John F. X. Costello) made what he categorized as three argumen ts relating to whether Mr. Shepard should be sanctio ned pursuant to § 16-20 5.1 of the Transportation Article. Mr. Costell o initially argued that Mr. Shepard s preliminary breath test (PBT) results, included in the police officer s certification (Form DR-15A ), should not be admitted into evidence. Counsel relied upon a Court of Special Appea ls opinion -4holding that PBT results were inadmissib le in circuit court criminal cases. 1 The ALJ pointed out that a recent Court of Appeals opinion held that PBT results were admissible in administrative hearings. 2 Nevertheless, the ALJ ruled that, if you don t want me to consider the PBT, I have no problem not considering it. I ll just read everything but the PBT . Counsel s next argumen ts at the administrative hearing concerned the certification form. Mr. Costello argued that the refusal to take an alcohol concentration test was not signed by the test technician and that, because of the police officer s punctuation in the certification, the certification did not comply with § 16-205.1. This latter contention seemed to be that, because of the absence of a comma, it was not clear whether this officer is certifying under his reasonab le grounds that this man was under the influence of alcohol or whether he s certifying that based on the reasonab le grounds he was driving a motor vehicle after consuming a controlled dangerous substance. There s absolutely no indication whatsoever that he was operating a motor vehicle after consuming a controlled dangerous substan ce. The ALJ, without ruling upon these contentions at the time, asked respondent s counsel to make your third argum ent. The third and final argument by respondent s counsel was that the evidence was insufficient for the police officer to have had reasonab le grounds to believe that 1 Harm on v. State, 147 Md. A pp. 452, 809 A .2d 696 (2002). 2 Motor Vehicle Administration v. Weller, 390 M d. 115, 8 87 A.2 d 1042 (2005 ). -5Mr. Shepard was driving while under the influence of alcohol. In particular, counsel contended that [t]here is absolutely no evidence before the Court [the ALJ] as to what the standard field sobriety test results were. While Mr. Shepard s attorney at times used the phrase probab le cause, as well as the statutory phrase reasonab le groun ds, he at no time made or intimated any contention regarding the meaning or interpretation of the statutory language reasonab le groun ds. The argument was complete ly factual, based on the asserted absence of substantial evidence. Counsel s entire argument was as follows: ATTORNEY JOHN F. X. COSTELLO: The third argument is when the Court looks at the reasonab le grounds and excludes the impermiss ible PBT from [our] standpoint as the Court has agreed to do so the four corners of the reasonab le grounds certification does not amount to probable cause. There is absolutely no evidence before the Court as to what the standard field sobriety test results were. They re not outlined at all. All the Court has before Your Honor is driving a motor vehicle at a high rate of speed with a strong odor of alcohol and bloodshot watery eyes. The fact that the officer chooses not to give you the test results is an indication of his own disbelief in either the test results or his belief that the test results would be indicative of something other than probable cause of intoxication. As Your Honor knows, the whole purpose for field sobriety tests is that odor of alcohol and bloodshot eyes standing alone is not evidence of probable cause of an individual s inability to operate a motor vehicle safe ly. Here we got a man that is driving a vehicle very well at a very high rate of speed. That in and of itself militates against any inference of probable cause of impaired ability to drive due to alcohol, number one. Number two, the officer chooses not to give this Court any benefit of what the field sobriety test results showed. To the extent that they don t, that is an inference against the officer and to the extent that the officer needs those field sobriety tests upon which to base his certification of probable cause to arrest, and that s the whole reason that they re done, a -6failure is indicative of probable cause but compliance with or a successful completion of field sobriety tests is an indication of just the opposit e. When he purposely chooses not to give you the benefit of those results there s got to be an honest inference that they would not have been helpful. Whether the Court wants to argue or whether you want to accept it under a spoliation theory or just a failure to certify under a reasonab le grounds theory. He could have come in and said nystagmus gaze constitutes a failure, that the man could not walk safe ly, he could not do walk-and-turn, he could not do the one-leg stand. He hasn t given you the benefit of any of that. And the whole reason that he had to do them was that candidly you and I both know that it does not amount to probable cause if an individual is lawfully operating a motor vehicle, i.e. within the lanes, at a high rate of speed and simply has an odor of alcohol and bloodshot eyes. If that were the case then there would be no need for the field sobriety test. Immedia tely following the above argumen t, the ALJ asked whether counsel had any additional arguments; the ALJ did not want to be sandbagged by some additional contention made later. The following colloquy occurred: ADMINISTRATIVE LAW JUDGE FRIEDMAN: Ok ay. Anything else? ATTORNEY JOHN F. X. COSTELLO: Not at this time. ADMINISTRATIVE LAW JUDGE FRIEDMAN: Ok ay. I m going to rule so I want to know whether there are any other arguments. You stated three. I m going to rule on all three of your arguments. I don t want you then to be telling me that you have another argument so I want to have all the argumen ts at once. ATTORNEY JOHN F. X. COSTELLO: -7 I appreciate that. And what I meant by not at this time is if you don t rule in our favor and I put on evidence, I have a right to renew my motion. Nothing more. Counsel then had Mr. Shepard testif y. At the conclusion of that testim ony, counsel reiterated his argument that there was insufficient evidence and asserted that Mr. Shepard s testimony confirmed the alleged insu ffic ienc y. Again, no statutory interpretation argument was made. The ALJ thereupon delivered an oral ruling, rejecting those argumen ts which the ALJ had not previously ruled upon. With respect to the principal argument by Mr. Shepard s counsel, the ALJ stated: The issue in this case is reasonab le grounds. The reasonable grounds as stated by the officer are much more than sufficient. He has stated more than sufficient reasonab le grounds to request that you take a test. That s what he was doing here. The standard field sobriety tests are identified contrary to counsel s statement. HGN, walk-and-turn, one-leg stand, he says that those tests were done. At no time did the ALJ make any conclusions concerning the interpretation of reasonab le grounds as used in the statute. As previously menti oned, the ALJ did point out that the statutory standard was reasonable grounds and not probab le cause. Nothing was said, however, about the meaning of reasonab le groun ds. Fina lly, no statutory interpretation issue was mentioned in the ALJ s writte n conclusions of law. As emphasized time after time in our cases, courts should not judicially review adjudicatory administrative decisions on grounds not raised before the administrative -8agen cy. The General Assembl y, as a matter of public poli cy, has determined that administrative agencies and administrative law judges should initially rule upon issues falling within the jurisdiction of the agencies and ALJs. Permitting agencies and ALJs to be sandbagged by new legal issues raised for the first time in circuit courts is directly contrary to the legislative poli cy. III. Even if the statutory interpretation issue were before us, there is no good reason to utilize the somewhat complicated criminal law concepts of arrest, probab le cause, reasonab le articulable suspicio n, etc., with their federal law and state law components, and apply such concepts to a reasonableness standard in a state law civil proceeding. There is no issue presented in this case, and rationally there could be no issue, that Mr. Shepard was lawfully arrested under Maryland law. He committed a misdemeanor in the presence of a police officer, i.e., driving a motor vehicle in excess of 132 miles per hour. 3 See Maryland Code (2001), § 2-202(a) of the Criminal Procedure Article. No other criminal law issue is involved. The license suspension proceeding, based upon Mr. Shepard s refusal to take an alcohol concentration test, is entirely a civil administrative proceeding, subject to a statutory civil action for judicial review. While three or four issues may have been raised at the administrative hearing, the only surviving issue is whether the police officer had reasonab le grounds to 3 If, at first glance, this seems unrealistic, it should be noted that Mr. Shepard was driving a Porsche. -9believe that Mr. Shepard was driving . . . while under the influence of alcohol [or] while impaired by alcohol . . . , § 16-205.1(b)(2) of the Transportation Article. Courts and adjudic atory agencies have traditionally applied the reasonableness standard in civil proceedings without utilizing or drawing analogies to criminal law concepts. A multitude of negligence cases, of all types, require triers of fact to determine the reasonableness of defendants conduct. See, e.g., Polakoff v. Turner, 385 Md. 467, 477, 479-480, 869 A.2d 837, 843, 845 (2005) ( The trier of fact must . . . evaluate whether the actions taken by the defendant were reasonab le under all the circumstances. * * * [T]he trier of fact must determine whether the defendant acted reasonab ly given the circumstances ); Brooks v. Lewin Realty , 378 Md. 70, 84-85, 835 A.2d 616, 624 (2003). Sim ilarly, in the present case, the ALJ as trier of fact should decide whether the police officer had reasonab le grounds under all of the circumstances. The ALJ did find that reasonab le grounds were present, and that finding was supported by substantial evidence. This should be the end of the matter. Judge Greene joins this concurring opinion.

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