Motor Vehicle Administration v. John W. Pollard, No. 18, September Term 2019. Opinion
by Hotten, J.

ADMINISTRATIVE LAW – STATUTORY REQUIREMENTS – REASONABLE
GROUNDS – The Court of Appeals held that the Administrative Law Judge (“ALJ”) erred
when she did not determine whether the law enforcement officer had reasonable grounds
to believe that a detained individual was driving or attempting to drive a vehicle pursuant
to Transportation Article § 16-205.1. Without deciding this, the ALJ could not conclude
whether Respondent violated Transportation Article § 16-205.1.
 Circuit Court for Caroline County
 Case No. C-05-CV-18-000156
 Argued: October 2, 2019                                                 IN THE COURT OF APPEALS

                                                                               OF MARYLAND

                                                                                     No. 18

                                                                             September Term, 2019

                                                                     __________________________________

                                                                     MOTOR VEHICLE ADMINISTRATION
                                                                                       v.
                                                                             JOHN W. POLLARD
                                                                     __________________________________

                                                                          Barbera, C.J.,
                                                                          McDonald,
                                                                          Watts,
                                                                          Hotten,
                                                                          Getty,
                                                                          Booth,
                                                                          Greene, Clayton, Jr. (Senior Judge,
                                                                          Specially Assigned),

                                                                                     JJ.
                                                                     __________________________________

                                                                             Opinion by Hotten, J.
                                                                     __________________________________
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
                                                                          Filed: December 23, 2019

                                              2019-12-23
Suzanne C. Johnson, Clerk
                                              10:30-05:00
       The Motor Vehicle Administration (“MVA”), seeks review of an adverse decision

by an Administrative Law Judge (“ALJ”). The MVA alleges that the ALJ failed to consider

whether the detaining officer had reasonable grounds to believe that the individual, John

W. Pollard (“Pollard”), was driving or attempting to drive his vehicle while under the

influence of alcohol. The ALJ found that Pollard did not drive under the influence of

alcohol in violation of Md. Code § 16-205.1 of the Transportation Article (“Transp.”) but

instead used his vehicle as a “shelter.” The Circuit Court for Caroline County affirmed the

ALJ’s decision. We granted certiorari to answer the following question:

       Was the administrative law judge in error to believe that a drunk driving
       suspect who refused a test for alcohol concentration could avoid a license
       suspension by asserting the defense he was “sheltering” in a vehicle without
       regard to the detaining officer’s reasonable grounds to believe that the
       motorist had been driving his vehicle while under the influence of alcohol?

For reasons discussed below, we answer that question in the affirmative and reverse the

judgment of the Circuit Court for Caroline County.

                  FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

       On October 1, 2017 at 12:07 a.m., Trooper John Tucker (“Trooper Tucker”) found

Pollard in his vehicle after responding to a trespassing call. Pollard parked his vehicle on

or near the driveway of his ex-girlfriend’s house, situated in a rural area off a dirt road.

The keys were in the ignition, but the vehicle was parked and not running. Pollard’s driver

seat was reclined, and Pollard informed Trooper Tucker that he had been asleep for about

thirty to forty-five minutes.
         Trooper Tucker woke Pollard, observed that his eyes were bloodshot, and detected

that his speech was slurred. Trooper Tucker also noticed a strong odor of alcohol

emanating from Pollard’s breath. Trooper Tucker initially requested Pollard leave the

premises, but when he refused, Trooper Tucker asked Pollard to perform standardized field

sobriety tests and take a preliminary breath test. Pollard refused. Thereafter, Trooper

Tucker read Pollard the “Advice of Rights” or DR-15 form, which, among other things,

advises the detained individual of the possible sanctions for refusing to take an alcohol

concentration test under Transp. § 16-205.1 and the individual’s hearing rights and right to

participate in the Ignition Interlock System Program. Pollard then requested that Trooper

Tucker contact his attorney, which Trooper Tucker did. Pollard’s attorney did not answer,

and Trooper Tucker did not leave a message. Pollard again refused to submit to a

breathalyzer test. Trooper Tucker detained Pollard, confiscated his license, and issued an

Order of Suspension for refusing to take the breathalyzer test in violation of Transp. § 16-

205.1.

Procedural Background

         On October 6, 2017, Pollard requested an administrative hearing pursuant to Transp.

§ 16-205.1, and requested that the ALJ subpoena Trooper Tucker to testify about whether

Pollard was in actual physical control of his vehicle, whether he had an opportunity to

consult his attorney, and whether his vehicle was on private property. The ALJ granted

this request and moved the hearing to July 25, 2018, in Easton, Maryland where Trooper

Tucker was assigned. The subpoena was issued on June 13, 2018, but Trooper Tucker did

not appear at the hearing on July 25, 2018, or submit documentation justifying his absence.

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At the hearing, the ALJ proceeded without Trooper Tucker and rendered a decision without

Trooper Tucker’s live testimony.1 At the hearing, Pollard argued that Transp. § 16-205.1

was not applicable to him because he was not in actual physical control of his vehicle and

was using it as shelter. Put another way, Pollard argued he did not violate Transp. § 16-

205.1 because he did not operate the vehicle. The ALJ agreed with Pollard’s argument and

relied on Atkinson v. State, 331 Md. 199, 627 A.2d 1019 (1993), where this Court explained

that an individual is not in “actual physical control” of the individual’s vehicle if the

individual is sheltering in the vehicle. The ALJ, however, neglected to address whether

Trooper Tucker had reasonable grounds to believe that Pollard was driving or attempting

to drive his vehicle as required by Transp. § 16-205.1.

       The MVA timely appealed the ALJ’s decision to the Circuit Court for Caroline

County. The MVA argued that the ALJ improperly relied on Atkinson because that case

involved an inapplicable criminal statute. The MVA also argued that Motor Vehicle

Administration v. Krafft, 452 Md. 589, 158 A.3d 539 (2017) applied. In Krafft, this Court

held that the MVA only needs to prove that the detaining officer had reasonable grounds

to believe that the detained individual was driving or attempting to drive under the

influence in a case arising under Transp. § 16-205.1, not that the individual was actually

driving or attempting to drive. The circuit court ultimately upheld the ALJ’s judgment

without expressly justifying its decision.



       1
         The Circuit Court for Caroline County subsequently found that Trooper Tucker
had notice of the hearing and simply did not appear. The circuit court held that the ALJ
correctly proceeded without Trooper Tucker.
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       The MVA timely appealed, and we granted certiorari.

                               STANDARD OF REVIEW

       When we review the decision of an administrative agency, we “review the agency’s

decision directly, not the decision of the circuit court.” Comptroller of Treasury v. Science

Applications Int’l. Corp., 405 Md. 185, 192, 950 A.2d 766, 770 (2008). We defer to an

agency’s interpretations and decisions. See Maryland-Nat’l Capital Park & Planning

Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73, 83, 985 A.2d 1160, 1166

(2009). However, we review the whole record to determine whether the ALJ’s decision

was supported by substantial evidence and correct conclusions of law. Id. at 84, 985 A.2d

at 1165. Substantial evidence is evidence that “a reasonable mind might accept as

adequate[.]” Id. at 84, 985 A.2d at 1166 (internal citations and quotations omitted).

       We review an agency’s decision that is premised upon the “application and analysis

of caselaw” without deference to the agency’s legal conclusions. Frey v. Comptroller of

Treasury, 422 Md. 111, 138, 29 A.3d 475, 490 (2011) (internal citations and quotations

omitted). If we determine the agency’s decision was based on an error of law, we shall

remand the case to the agency to remedy the error. Bereano v. State Ethics Comm’n, 403

Md. 716, 756, 944 A.2d 538, 561 (2008).

       “Therefore, ordinarily the court reviewing a final decision of an administrative

agency shall determine (1) the legality of the decision and (2) whether there was substantial

evidence from the record as a whole to support the decision.”           Gigeous v. Eastern

Correctional Institution, 363 Md. 481, 496, 769 A.2d 912, 922 (2001) (internal citations

omitted).

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                                       DISCUSSION

   A. Test refusal cases are limited to the issues enumerated in Transp. § 16-205.1 as
      we held in Krafft.

       At issue is whether Trooper Tucker had reasonable grounds to believe that Pollard

was driving or attempting to drive his vehicle while under the influence. Section 16-205.1

of the Transportation Article “authorizes a law enforcement officer who believes that an

individual has been driving (or attempting to drive) while under the influence of alcohol to

ask the individual to take a breath test for blood alcohol concentration. If the individual

refuses, the individual’s driving privileges in Maryland are automatically suspended[.]”

Krafft, 452 Md. at 591, 158 A.3d at 540. One whose driving privileges are suspended may

challenge the suspension in front of an ALJ; however, the individual may only contest the

issues enumerated in the statute. Id. Under Transp. § 16-205.1, the MVA must prove that

the law enforcement officer had reasonable grounds to believe that the detained individual

had been driving or attempting to drive rather than prove that the individual was actually

driving or attempting to drive. See id. at 592, 158 A.3d at 540-41 (holding that “in a test

refusal case, there is no requirement that the [MVA] prove that the individual was actually

driving (or attempting to drive) while under the influence of alcohol. Rather the relevant

question is whether the officer had reasonable grounds to believe that the individual was

doing so.” (emphasis in original)).

       Title 11 of the Maryland Transportation Article defines “driving” as “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.” Transp. § 11-114.


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Therefore, to sanction the individual under Transp. § 16-205.1, the MVA must show that

the detaining officer had reasonable grounds to believe that the detained individual had

been driving, operating, moving, or was in actual physical control of a vehicle, or was

attempting to do one of these actions, while under the influence of alcohol.

       Here, the MVA argues that the ALJ misapplied Atkinson and improperly required

the MVA to prove that Pollard was in “actual physical control” of his vehicle, rather than

that Trooper Tucker had reasonable grounds to believe Pollard was driving or attempting

to drive while under the influence. We agree.

       Atkinson was a criminal case involving a defendant’s assertion that he was not

driving or attempting to drive under the influence of alcohol but was merely “sheltering”

on the side of the road. We outlined various factors to be applied when determining

whether a defendant is in “actual physical control” of a vehicle for purposes of the criminal

statute governing offenses related to driving while intoxicated or under the influence

(“DUI”). Atkinson, 331 Md. at 216, 627 A.2d at 1025. For purposes of the criminal statute,

the State is required to prove beyond a reasonable doubt that the defendant was driving or

attempting to drive a vehicle while intoxicated. Transp. § 21-902. In Atkinson, the issue

was whether the individual was “driving or attempting to drive” when he was sitting

intoxicated and asleep in the driver’s seat of his vehicle, parked on the side of the road with

his keys in the ignition, but his engine off. We examined the definition of “drive,” under

Transp. § 11-114, and we held that what constitutes “actual physical control” will

inevitably depend upon the facts of the individual case. We enumerated several factors

that a court may consider in determining whether an individual is in “actual physical

                                              6
control” for purposes of the DUI statute. After considering the applicable factors, we

determined that reasonable doubt existed whether the individual was not in “actual physical

control” for purposes of the criminal statute, Transp. § 21-902. Id. at 212-13, 627 A.2d at

1025-26.

       We hold that the Atkinson factors do not apply to a test refusal case because the

MVA is not required to prove beyond a reasonable doubt that the individual is driving or

attempting to drive while under the influence of alcohol. We determine that the ALJ

misapplied Atkinson and should not have considered the Atkinson factors in her decision.

In other words, the ALJ should have determined whether Trooper Tucker had reasonable

grounds to believe that Pollard was driving or attempting to drive while under the influence

of alcohol.

   B. The ALJ must determine whether the detaining officer had reasonable grounds
      to believe that the detained individual was driving or attempting to drive a vehicle
      pursuant to Transp. § 16-205.1.

       The MVA must prove by a preponderance of the evidence that the “investigating

officer had reasonable grounds to believe” that the detained individual was driving or

attempting to drive. Krafft, 452 Md. at 608, 158 A.3d at 550 (emphasis in original).

“Reasonable grounds” under Transp. § 16-205.1 means “reasonable articulable suspicion,”

which is less than “preponderance of the evidence or probable cause.” MVA v. Shepard,

399 Md. 241, 254, 259, 923 A.2d 100, 107, 110 (2007). “Reasonable suspicion is a

common sense, nontechnical conception that considers factual and practical aspects of

daily life and how reasonable and prudent people act.” Motor Vehicle Administration v.

Shea, 415 Md. 1, 19, 997 A.2d 768, 778 (2010) (internal citations and quotations omitted).

                                             7
We consider the totality of the circumstances to determine whether the detaining officer

had “reasonable suspicion,” and we give deference to the detaining officer’s experience

and training and his or her ability to infer from his or her observations. Id.

       In Motor Vehicle Administration v. Carpenter, 424 Md. 401, 36 A.3d 439 (2012),

we held that the law enforcement officer had reasonable grounds to believe that Carpenter

drove his truck while under the influence even though the officer did not see Carpenter

driving, or attempting to drive, his vehicle. 424 Md. at 417, 36 A.3d at 448. Carpenter

argued that a detaining officer cannot infer that an individual was driving or attempting to

drive. Id. at 415, 36 A.3d at 447-48. In other words, an officer cannot base his or her

“reasonable grounds to believe” on an inference. We disagreed and held that a detaining

officer may reasonably infer that a detained individual was driving a vehicle while under

the influence even if the officer did not actually see the detained individual driving the

vehicle. Id. at 416, 36 A.3d at 448. “To be reasonable, an inference must be the application

of ‘common sense, powers of logic, and accumulated experiences in life to arrive at

conclusions from demonstrated sets of facts.’” Id. at 416, 36 A.3d at 448. In Carpenter,

the officer’s inferences were reasonable because the officer responded to the scene of a car

accident involving the individual’s truck. Id. at 417, 36 A.3d at 448. Carpenter admitted

that he had been traveling from Delaware to Maryland after having two beers. Id. The

facts clearly indicated that officer’s inferences were reasonable and that she had reasonable

grounds to believe Carpenter was driving his truck. Id.

        Like in Carpenter, Trooper Tucker did not see Pollard driving, or attempting to

drive, his vehicle; thus, Trooper Tucker needed to rely on his inferences. Trooper Tucker’s

                                              8
statements reflect that Trooper Tucker had reasonable grounds to believe Pollard was

driving or attempting to drive under the influence of alcohol. Trooper Tucker found Pollard

in the driver’s seat of his parked vehicle with the keys in the ignition. Pollard was

trespassing on his ex-girlfriend’s property and refused to leave. Pollard had extremely

bloodshot eyes, slurred speech, and a strong odor emanating from his breath and person.

Pollard refused to participate in any field sobriety tests, including a preliminary breath test.

Based on these circumstances, Trooper Tucker could reasonably infer that Pollard was

driving or attempting to drive while under the influence of alcohol even without observing

Pollard operate his vehicle.

                                      CONCLUSION

       In sum, we conclude that Trooper Tucker had reasonable grounds to believe that

Pollard was driving or attempting to drive while under the influence of alcohol and the ALJ

erred when she failed to consider Trooper Tucker’s reasonable grounds.

                                                   JUDGMENT OF THE CIRCUIT
                                                   COURT FOR CAROLINE COUNTY
                                                   IS REVERSED. COSTS TO BE PAID
                                                   BY JOHN W. POLLARD.




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