Motor Vehicle Administration v. Paul McGuire Styslinger
No. 53, September Term 2016

Motor Vehicle Administration v. Robert Allen Krafft
No. 52, September Term, 2016


Maryland Vehicle Law – Driver’s licenses – Administrative Remedies – Implied
Consent, Administrative Per Se Law – Test Refusal. Under the State’s implied consent,
administrative per se law, if an individual detained under suspicion of drunk driving refuses
to submit to a breath test for blood alcohol concentration, the individual’s driver’s license
is suspended. The individual may challenge the validity of the suspension at an
administrative hearing. At such a hearing, the Motor Vehicle Administration (“MVA”)
must show that the officer who requested the licensee to submit to the test had reasonable
grounds to believe that the licensee was driving (or attempting to drive) while impaired,
that there was evidence of alcohol use, that the officer provided the licensee with the
appropriate advice of rights in requesting a test, and that the licensee refused to take the
test. The MVA need not prove that the licensee actually was driving (or attempting to
drive) while impaired, so long as the officer had a reasonable belief that the licensee was
doing so. Maryland Code, Transportation Article, §16-205.1.
                                       IN THE COURT OF APPEALS
                                            OF MARYLAND
Circuit Court for Somerset County
Case No. 19-C-16-017845
                                              Nos. 52 & 53
Circuit Court for Montgomery County
Case No. 412953                           September Term, 2016
Argument: February 3, 2017

                                      MOTOR VEHICLE ADMINISTRATION

                                                    V.

                                          ROBERT ALLEN KRAFFT


                                      MOTOR VEHICLE ADMINISTRATION

                                                    V.

                                        PAUL MCGUIRE STYSLINGER


                                              Barbera, C.J.
                                              Greene
                                              Adkins
                                              McDonald
                                              Watts
                                              Hotten
                                              Getty,

                                                     JJ.


                                         Opinion by McDonald, J.


                                           Filed: April 21, 2017
       As part of the effort to detect drunk drivers and keep them off the State’s roadways,

the General Assembly has enacted a statute known as “the implied consent, administrative

per se law.”1 That law authorizes a law enforcement officer who believes that an individual

has been driving (or attempting to drive) while impaired by 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 for a time period specified in

the statute.

       The law allows an individual whose driving privileges are suspended under the

implied consent, administrative per se law to challenge the suspension at an administrative

hearing. The statute limits the issues that may be contested at such a hearing. In a test

refusal case, those issues ordinarily are: (1) whether the officer had reasonable grounds

for believing that the individual was driving (or attempting to drive) while impaired, (2)

whether there was evidence of alcohol use by the individual, (3) whether the officer

properly advised the individual in accordance with the statute when requesting the breath

test, and (4) whether the individual refused the test.

       These two cases concern administrative hearings in test refusal cases. In each case,

the administrative law judge (“ALJ”) overturned the suspension on the ground that, while

it was undisputed that the individual was under the influence of alcohol when the individual

was detained by a law enforcement officer, it was not established, by a preponderance of




       1
           Maryland Code, Transportation Article, §16-205.1.
the evidence, that the individual had actually been driving (or attempting to drive) at that

time.

        We hold that, in a test refusal case, there is no requirement that the Motor Vehicle

Administration (“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 that the individual was doing so. In one of

these cases, the ALJ clearly found that the officer had reasonable grounds, and thus the

suspension should have been upheld. In the other case, the ALJ’s finding on the issue of

reasonable grounds was at best ambiguous, and we remand the case for clarification.

                                              I

                                        Background

A.      The Implied Consent, Administrative Per Se Law

        Every state has enacted some form of an implied consent law as part of its strategy

to combat drunk driving. See Missouri v. McNeely, 133 S.Ct. 1552, 1566 (2013). The

Maryland implied consent, administrative per se law appears in Maryland Code,

Transportation Article (“TR”), §16-205.1. That law authorizes a law enforcement officer

to request a suspected drunk driver to submit to a chemical test to determine blood alcohol

content in certain circumstances.2 If the test shows a blood alcohol concentration above a




        2
        The statute also covers impairment due to other drugs. However, as these two
cases both involve suspected impairment due to alcohol, for simplicity we shall refer to
impairment due to alcohol consumption in describing the law.

                                             2
certain amount, or if the individual refuses to take the test, an administrative suspension of

the individual’s driving privileges follows.

       Implied Consent. As to implied consent, the statute provides that anyone who drives

(or attempts to drive) a motor vehicle in Maryland “is deemed to have consented” to take

a breath test to determine blood alcohol concentration “if the person should be detained on

suspicion of driving or attempting to drive while under the influence of alcohol.” TR §16-

205.1(a)(2).3 Although the statute deems all motorists in Maryland to have consented to

take a breath test, it nonetheless allows an individual detained under suspicion of drunk

driving to elect at that time whether or not to take the test. TR §16-205.1(b).4 Thus, while

consent is implied, it may be withdrawn. But a refusal to take the test has consequences.

That is where the “administrative per se” aspect of the statute comes in.

       Administrative Per Se. At the time of the events underlying these cases, a refusal to

take the test resulted in an automatic administrative license suspension of 120 days for the

first such refusal, and in a suspension of one year for a second or subsequent test refusal.

TR §16- 205.1(b)(1)(i)3, (b)(1)(ii)3 (2015).5 The alternative, of course, would be for the




       3
         The statute also provides for the use of a blood test, although the use of that test is
limited to specified circumstances. See Maryland Code, Courts & Judicial Proceedings
Article, §10-305(a).
       4
        The individual does not have the option of refusing the test if he or she was
involved in a motor vehicle accident resulting in death or a life threatening injury of another
person. TR §16-205.1(c).
       5
         The General Assembly subsequently increased the length of the various
administrative suspensions provided in the statute. Chapter 512, Laws of Maryland 2016.
                                            3
individual to take the test. If the individual does so, the test result will either carry a lesser

period of administrative suspension or no suspension at all. 6 In either case, a suspension

may be modified in favor of a restricted license that allows the individual to drive for

employment, education, or similar purposes. TR §16–205.1(o), (p).

       Thus, the statute provides an incentive to take the test, at least in terms of the

potential administrative sanction.7 The automatic suspension for a test refusal, and the

greater sanction compared to an adverse test result, are designed to encourage drivers to

take the breath test, so that impaired drivers may be detected and removed from the

roadways in the interest of safety. Motor Vehicle Administration v. Deering, 438 Md. 611,

616 (2014).

       Procedure and Appeal. Once a law enforcement officer has detained a suspected

drunk driver, the officer is to advise the detainee, among other things, of the possible



In the case of a test refusal, the suspension for a first offense is now 270 days and, for a
second or subsequent offense, two years. TR §16–205.1(b)(1)(i)5, (b)(1)(ii)5.
       6
          At the time of the events underlying these cases, a test result showing a blood
alcohol concentration above .08 would result in an administrative suspension of between
45 days and 180 days, depending on the level of alcohol concentration in the person’s blood
and whether it was a first or subsequent offense. TR §16–205.1(b)(1)(i)1-2, (b)(1)(ii)1-2
(2015). Those potential suspensions have since been increased to between 180 and 270
days. Chapter 512, Laws of Maryland 2016. In addition, the law provides for longer
suspensions if the individual was involved in a motor vehicle accident resulting in death –
a circumstance in which a test refusal is not an option. See TR §16–205.1(b)(1)(i)1-4,
(b)(1)(ii)1-4.
       7
        Any administrative sanction for a test refusal or a failed test is independent of any
criminal proceedings that may result from whatever incident led a law enforcement officer
to request a person suspected of drunk driving to take a chemical test. TR §16–205.1(m).
However, upon conviction of a violation of the Maryland Vehicle Law arising out of the
same incident, there may be additional administrative sanctions. TR §16–205.1(l).
                                            4
administrative sanctions for a refusal to take the breath test and for test results that show a

blood alcohol concentration above certain levels. TR §16–205.1(b)(2). Typically, the

officer satisfies this requirement by reading, and providing the driver with, a form created

by the MVA for that purpose, known as the DR–15 form (Advice of Rights). That form

sets forth a detained driver’s options under the implied consent, administrative per se

statute, the consequences of failing to take the breath test and of test results that indicate

certain levels of blood alcohol concentration, and other rights and consequences, including

the right to an administrative hearing. The officer indicates on the form the election made

by the individual and certifies by signature that the individual has been advised of those

rights. There is also a space on the form for the individual to confirm his or her election

by signature.

       If the individual refuses to take the test or fails the test, the officer is to serve an

order of suspension on the individual, confiscate his or her license, and issue a temporary

license that may be used for a maximum of 45 days or until the individual’s license is

formally suspended after a license suspension hearing. TR §16–205.1(b)(3). The MVA

has created another form, known as the DR-15A form (Officer’s Certification and Order

of Suspension), for this purpose. On that form, the officer summarizes, under penalty of

perjury, the facts that led the officer to suspect the individual of drunk driving and records

other information concerning the individual and the incident. The individual’s copy of the

form serves as a temporary license pending any hearing.

       If the individual requests an administrative hearing to contest the suspension, it is

to be conducted under the contested case provisions of the State Administrative Procedure
                                              5
Act. TR §§16–205.1(f), 12-206; Maryland Code, State Government Article (“SG”), §10-

201 et seq. Under a delegation from the MVA, the hearing is conducted by an ALJ of the

Office of Administrative Hearings (“OAH”). TR §12–104(e); COMAR 11.11.02.07. The

statute enumerates the specific issues that can be raised at the license suspension hearing.

In a test refusal case, those issues are usually limited to: (1) whether the officer had

reasonable grounds for believing that the individual was driving (or attempting to drive)

while impaired, (2) whether there was evidence of alcohol use by the individual, (3)

whether the officer properly advised the individual in accordance with the statute when

requesting the breath test, and (4) whether the individual refused the test. TR §16–

205.1(f)(7)(i)1-48; see also Motor Vehicle Administration v. McDorman, 364 Md. 253,

259-60 (2001).

       At the conclusion of the administrative hearing, if the ALJ is persuaded that the

criteria for a suspension under the implied consent, administrative per se law are satisfied,

the ALJ is to uphold the license suspension. TR §16–205.1(f)(8). If the ALJ finds that the

criteria have not been met, the ALJ takes “no action” − i.e., overturns the suspension. In

either case, the ALJ’s decision is the final decision of the MVA. COMAR 11.11.02.07A.



       8
         If the person took a chemical test, the administrative hearing may also concern the
results of the test. TR §16-205.1(f)(7)(i)5-6. In a case involving an individual who holds
a commercial instructional permit or a commercial driver’s license, the hearing may
concern whether the individual held such a permit or license or was operating a commercial
motor vehicle. TR §16-205.1(f)(7)(i)7. Finally, under a recent amendment, in appropriate
cases, the hearing may concern whether the individual was involved in a motor vehicle
accident that resulted in death. TR §16-205.1(f)(7)(i)8; see Chapter 247, Laws of Maryland
2015.

                                             6
The OAH has apparently developed a form on which an ALJ may document the ALJ’s

findings on the relevant issues.

       Either party may seek judicial review pursuant to the State Administrative

Procedure Act. TR §12–209; SG §10-222. After review by a circuit court, any further

appeal must be pursued by a petition for writ of certiorari directly to this Court. Maryland

Code, Courts & Judicial Proceedings Article (“CJ”), §12-305.

       The Predicate. A law enforcement officer has no authority to arbitrarily request an

individual – even one who is driving a car – to take a breath test or face legal consequences.

As the above outline of the statute indicates, there is a predicate for a test request that

triggers the operation of the implied consent, administrative per se law:            the law

enforcement officer must have detained the individual upon a reasonable suspicion of

drunk driving. Thus, a suspension for a test refusal is to be upheld only if the law

enforcement officer who detained the suspected drunk driver had “reasonable grounds to

believe” that the individual was driving (or attempting to drive) while impaired by alcohol.

       These cases concern application of that predicate.

B.     Facts and Proceedings

       1.     MVA v. Styslinger

       Circumstances of Test Refusal

       The essential facts are undisputed. On March 28, 2015, at approximately 1:10 a.m.,

Officer Alex Pockett of the Gaithersburg City Police Department responded to a report that

a driver was slumped over his steering wheel at a location on Washington Boulevard in

Gaithersburg. Upon his arrival, Officer Pockett found Paul M. Styslinger asleep in the
                                              7
driver’s seat with the motor running. Officer Pockett detected a moderate odor of alcohol

on the breath of Mr. Styslinger who, upon waking, admitted that he had been drinking

alcohol that evening.

       Officer Pockett asked Mr. Styslinger to perform some standard field sobriety tests,

which Mr. Styslinger was unable to do to the officer’s satisfaction. Officer Pockett then

detained Mr. Styslinger and transported him to the Gaithersburg police station for further

investigation.

       At the police station, Officer Pockett advised Mr. Styslinger of his rights by reading

him the DR-15 form. He asked Mr. Styslinger if he was willing to undergo a blood alcohol

concentration test. Mr. Styslinger refused to submit to a test. Officer Pocket confiscated

Mr. Styslinger’s driver’s license, and issued an order of suspension together with a

temporary license on the DR-15A form. Mr. Styslinger made a timely request for an

administrative hearing concerning the suspension.

       The Administrative Hearing

       The administrative hearing was conducted by an ALJ on July 31, 2015. As is

typically the case, the MVA’s evidence consisted entirely of documents, including the

forms related to Mr. Styslinger’s encounter with Officer Pockett on March 28, 2015.

Among the documents submitted were the DR-15A form (Officer’s Certification and Order

of Suspension) and the DR-15 form (Advice of Rights), which documented Mr.

Styslinger’s test refusal and which had been signed by both the officer and Mr. Styslinger.

On the DR-15A form, Officer Pockett stated under penalty of perjury that he had

reasonable grounds to believe that Mr. Styslinger had been driving (or attempting to drive)
                                             8
while under the influence of alcohol and briefly summarized his encounter with Mr.

Styslinger that evening. At the hearing the ALJ also accessed Mr. Styslinger’s driving

record, which reflected a prior test refusal and suspension 15 years earlier.

       After the MVA records were admitted in evidence, Mr. Styslinger presented his case

through the testimony of himself and Alisa Cottone, with whom he lived and with whom

he had a child. Mr. Styslinger admitted that he had parked his car before visiting a gym

and drinking at two bars that evening, but denied that he had attempted to drive after doing

so. He said that he had contacted the Uber car service for a ride home and was waiting in

his car with the motor running in order to stay warm when he fell asleep until he was

wakened by the officer. There was no direct evidence from Mr. Styslinger’s phone records

or Uber documenting that he had contacted Uber. However, Ms. Cottone testified that he

had called her that night and told her that he was going to use Uber to get home.9

       At the conclusion of Mr. Styslinger’s evidence, his counsel asked the ALJ to take

no action, arguing that there was no evidence that Mr. Styslinger had driven or attempted

to drive his car while impaired.10 The ALJ was unpersuaded at that point that he should




       9
        During closing argument, the ALJ permitted Mr. Styslinger’s counsel to introduce
a more detailed police incident report concerning Officer Pockett’s encounter with Mr.
Styslinger, which was consistent with the report provided to the MVA but which
additionally reported that Mr. Styslinger had told the officer that night that he was
expecting “a friend” to pick him up.
       10
         Counsel relied in part on this Court’s decision in Atkinson v. State, 331 Md. 199
(1993). In Atkinson, this Court held, in the context of a criminal prosecution for driving
while intoxicated, that there was a reasonable doubt whether an intoxicated individual
found asleep in a parked car with the motor off had driven (or attempted to drive) the car,
                                             9
“grant a no action” and continued the case in order to have Officer Pockett subpoenaed “to

hear a little bit more from the officer about what the officer recollects that he observed.”

       Ultimately, Officer Pockett did not testify in person and, at a continuation of the

hearing on November 12, 2015, the ALJ rendered a decision based on the evidence

previously adduced.11 At that time, the ALJ took no action on the suspension. The ALJ

explained his decision as follows. He first found that Officer Pockett “had reasonable

grounds to believe that [Mr. Styslinger] was driving or attempting to drive a motor vehicle

while under the influence of alcohol” based on the officer’s report that he found Mr.

Styslinger asleep in his car with the motor running, that Mr. Styslinger’s breath smelled of

alcohol, and that Mr. Styslinger failed the field sobriety tests. The ALJ also found that

Officer Pockett had properly advised Mr. Styslinger of the potential administrative

sanctions when he requested Mr. Styslinger to take a breath test and that Mr. Styslinger

had refused to submit to the test.

       However, the ALJ decided that no action was the appropriate disposition because

“the MVA has not met its burden of proving by a preponderance of the evidence [that Mr.

Styslinger] drove or attempted to drive.” In making that finding, the ALJ referred to the




as opposed to simply sought shelter in it. Accordingly, the Court reversed the criminal
conviction in that case.
       11
          In the interim, Mr. Styslinger had been acquitted in the District Court of Maryland
of criminal charges based on the same incident for driving while under the influence or
impaired by alcohol. As noted earlier, the disposition of criminal charges related to a
particular incident does not affect the validity of an administrative suspension arising out
of that same incident. TR §16-205.1(m).

                                             10
testimony of Mr. Styslinger that he was in the car only for purposes of shelter and the

testimony of both Mr. Styslinger and Ms. Cottone that he had contacted Uber for a ride

home.12 The ALJ characterized his decision as a “close call,” given that the car engine was

running at the time of the discovery of Mr. Styslinger by the officer. On the OAH form

for such hearings, the ALJ included written “Findings of Facts” consistent with his oral

decision.13

       The Circuit Court Ruling

       The MVA sought judicial review of the ALJ’s decision in the Circuit Court for

Montgomery County. The MVA argued that it need only show that Officer Pockett had

reasonable grounds to believe that Mr. Styslinger was driving (or attempting to drive) while

impaired – and need not show that Mr. Styslinger had actually done so – in order to support

an administrative license suspension in a test refusal case. After conducting a hearing, the

Circuit Court affirmed the ALJ’s decision. The court acknowledged that the statute limited




       12
          The ALJ also opined that, while “not necessary to the decision,” he had also
weighed the adverse effect of a license suspension on employment against the potential
effect on highway safety, noting that Mr. Styslinger had not been convicted or suspended
for drunk driving within the past five years. As the record contained no information
concerning Mr. Styslinger’s employment, this appeared to be a consideration of general
policies underlying the implied consent, administrative per se statute.
       13
         On the OAH form, using similar language to his oral comments, the ALJ filled in
the boxes explaining why the officer had reasonable grounds to believe that Mr. Styslinger
had been driving (or attempting to drive) while impaired and why there was evidence of
Mr. Styslinger’s use of alcohol. The ALJ also checked the “yes” box next to the questions
whether the officer had advised Mr. Styslinger of his rights and whether Mr. Styslinger
refused to take the test.

                                            11
the issues in a test refusal case, but believed that the MVA must prove, as “a prerequisite

to applying the implied consent law,” that the licensee was driving (or attempting to drive).

       We subsequently granted the MVA’s petition for a writ of certiorari to review

whether the ALJ applied the correct legal standard in this case.

       2.     MVA v. Krafft

       Circumstances of Test Refusal

       On October 10, 2015, at approximately 9:14 p.m., Trooper John Dize of the

Maryland State Police responded to a report of an accident in front of a residential address

in Princess Anne in Somerset County. Upon his arrival, Trooper Dize found an empty

vehicle with a Maryland license plate. He ran the registration record of the vehicle and

learned that it was registered to Mr. Krafft, who resided at that address.

       Trooper Dize approached the house and observed that the door was open with Mr.

Krafft “passed out on his couch.” Trooper Dize began to question Mr. Krafft, who could

barely stand up. Trooper Dize also noted that Mr. Krafft had a strong odor of alcohol on

his breath, slurred speech, and red and glassy eyes. During their conversation, Mr. Krafft

admitted to Trooper Dize that he had been drinking, and Trooper Dize asked him to take a

breath test for blood alcohol concentration. Mr. Krafft was provided with the DR-15 form

(Advice of Rights) and refused the requested breath test for blood alcohol concentration.

Trooper Dize then confiscated Mr. Krafft’s license and completed the DR-15A form

(Officer’s Certification and Order of Suspension), which Mr. Krafft declined to sign.




                                             12
       The Administrative Hearing

       Mr. Krafft requested an administrative hearing concerning the suspension. At the

hearing on February 10, 2016, the ALJ accepted documents submitted by the MVA in

support of the suspension – in particular, Mr. Krafft’s driving record, the DR-15 form and

the DR-15A form. Mr. Krafft did not testify or challenge the substance of Trooper Dize’s

description of the events of that evening.

       Mr. Krafft’s lawyer argued that the MVA documents and, in particular, the trooper’s

statement of reasonable grounds, were insufficient to support the suspension. He argued

that, even if there were reasonable grounds to believe that Mr. Krafft was impaired or under

the influence of alcohol, Trooper Dize had not set forth reasonable grounds to believe that

Mr. Krafft was driving (or attempting to drive) while he was in that condition.

       The ALJ stated at the hearing that she agreed that the Officer’s Certification

provided evidence that Mr. Krafft had consumed alcohol that evening. However, she

believed that it was insufficient to establish, by a preponderance of evidence, that Mr.

Krafft had been driving. The ALJ stated:

                 Despite the vehicle being owned by Mr. Krafft, based on the
         information in this Certification it could have been somebody else
         driving. It could have been Mr. Krafft driving before he consumed
         alcohol. I just can’t conclude that the preponderance of the evidence
         establishes the MVA’s case and because of that I’m going to take no
         action.

       The ALJ8-27 documented her decision on the OAH form as follows. In the block

concerning whether Trooper Dize “had reasonable grounds to believe” that the Mr. Krafft

was driving or attempting to drive a motor vehicle while under the influence or impaired

                                             13
by alcohol, she entered “n/a.” In the block concerning whether there was evidence of the

use of alcohol, she also entered “n/a.” In response to questions on the form as to whether

Trooper Dize had advised Mr. Krafft of the administrative sanctions, whether the trooper

had asked Mr. Krafft to take a test, and whether Mr. Krafft had refused to take the test,

the ALJ checked “no” in each instance. Finally, in a large block entitled “Other Facts (if

needed)” the ALJ reiterated her oral statement at the hearing that the MVA had not

demonstrated that Mr. Krafft had been driving while impaired by a “preponderance of the

evidence.”

       The Circuit Court Ruling

      The MVA sought judicial review of the ALJ’s decision in the Circuit Court for

Somerset County. After conducting a hearing, the Circuit Court ruled from the bench and

affirmed the ALJ’s decision on the grounds that there was no error of law and that the court

was not persuaded that Mr. Krafft had been driving.

       We subsequently granted the MVA’s petition for a writ of certiorari to review

whether the ALJ applied the correct legal standard in this case.

                                             II

                                        Discussion

A.     Standard of Review

       In reviewing a decision of an administrative agency, we directly evaluate that

decision under the same standard of review as a circuit court.              Motor Vehicle

Administration v. Shea, 415 Md. 1, 15 (2010). A court that reviews an agency decision

assesses whether there is substantial evidence in the record to support the decision and
                                            14
whether the decision is based upon an error of law. Id. at 14-15. This standard accords

less deference to an agency’s legal conclusions than to its fact findings, although a

reviewing court may accord some weight to an agency’s interpretation and application of

a statute that it administers. Id.

B.     Legal Standard for License Suspension in Test Refusal Cases

       We granted certiorari in both of these cases to consider whether the ALJs applied

the correct legal standard in deciding to overturn the administrative license suspensions.

In both cases the issue is whether, in a test refusal case, the MVA is required to show that

the individual was driving (or attempting to drive) while impaired – as opposed to showing

only that the law enforcement officer had “reasonable grounds to believe” that the

individual was doing so. This is a question of law.

       It may be tempting to treat an administrative hearing under TR §16-205.1(f) as a

civil analog to a criminal DUI prosecution, in which the MVA would be required to make

the same showing as the criminal prosecutor, but bear a lesser burden of proof. In other

words, under this conception, the MVA would be required to prove that the individual was

driving (or attempting to drive) while impaired, but need only do so by a preponderance of

the evidence while a criminal prosecutor would be required to make the same showing

beyond a reasonable doubt. However, in a test refusal case, such a conception of the

administrative hearing is wrong on at least two counts.

       Proof of Predicate for Test Request v. Proof of Actual Driving

       First, there is no requirement that the MVA establish that the individual was actually

driving (or attempting to drive). In a test refusal case, the gravamen of the offense is the
                                             15
refusal to take the test. Usually, there is no dispute that the individual refused to take the

test. Instead, the validity of the suspension often turns on whether the officer was

authorized to ask the individual to take the test in the first place. Thus, the issue in a test

refusal case is usually whether the predicate for the test request – i.e., that the officer had

“reasonable grounds to believe” that the individual had been driving (or attempting to

drive) while impaired – existed at the time the officer made the request. Obviously, the

same observations that would lead an officer to have such a reasonable belief are also likely

to be evidence that the individual actually drove while impaired, but “reasonable grounds”

and conclusive proof can be two different things. And it is important to keep distinct what

must be shown.

       The plain language of the statute is clear as to what must be shown at a suspension

hearing. Under TR §16–205.1(f)(7)(i), the issues to be determined by an ALJ in a test

refusal case are: (1) whether the officer had reasonable grounds for believing that the

individual was driving (or attempting to drive) while impaired, (2) whether there was

evidence of alcohol use by the individual, (3) whether the officer properly advised the

individual in accordance with the statute when requesting the breath test, and (4) whether

the individual refused the test. A determination of whether the individual actually drove

(or attempted to drive) while impaired does not appear on that list. Nothing suggests that

there should be additional factors considered beyond those detailed in the statute.

       Despite the clarity of this language in subsection (f)(7) of the statute, it might be

argued that the issue of actual driving is imported into an administrative hearing by virtue

of another provision of the statute – subsection (a)(2). As indicated earlier, that subsection
                                              16
provides that “any person who drives or attempts to drive” in Maryland is subject to the

implied consent, administrative per se law. The argument, then, is that there must be proof

of actual driving for the statute to apply in the first place. 14 This interpretation of law

appears to contemplate that a holder of a Maryland license repeatedly gives implied consent

(by driving) and then withdraws it (by parking). Apart from the fact that this interpretation

would have the statute flashing on and off even for Maryland license holders who make

use of that privilege every day, it would render the statute internally inconsistent. Under

this conception of the statute the MVA would always have to establish that an individual

had been driving (or attempting to drive) at a license suspension hearing, even though that

is not one of the issues specified in subsection (f)(7) of the statute for decision at a hearing.

       The legislative history of subsection (a)(2) is instructive. The implied consent,

administrative per se law was originally enacted in 1969. Chapter 158, Laws of Maryland



       14
          Some have argued that this Court accepted that premise in Motor Vehicle
Administration v. Atterbeary, 368 Md. 480 (2002), a test refusal case. In Atterbeary, the
motorist was discovered slumped behind of the wheel of his car with the key in the ignition
and the motor running at a car dealership. After initially agreeing to take a breath test, the
motorist later demurred. An ALJ upheld a suspension for test refusal, but the circuit court
concluded that there was insufficient evidence of a refusal, given the motorist’s assertion
he was simply waiting to consult with an attorney. This Court later reversed the circuit
court’s decision. In the course of its opinion, the Court also considered the motorist’s
argument, relying on the Atkinson decision, that the statute did not apply to him at all
because he had not driven his car on a public road, but had simply sought shelter in it. (see
footnote 10 above for a description of Atkinson). This Court distinguished Atkinson and
concluded the motorist would have been found to be in physical control of his car under
the factors under the analysis in Atkinson. The Court did not explicitly consider the
question whether it was necessary for the MVA to prove that the motorist had been driving
– as opposed to reasonable grounds to believe that he had been doing so. To the extent that
the Atterbeary decision could be read to suggest otherwise, we disavow that reading.

                                               17
1969, then codified in former Article 66½, §92A. In the original iteration of the statute,

the predecessor of subsection (a)(2) required that any holder of a Maryland driver’s license,

as a condition of obtaining or renewing the license, had to explicitly consent to take a

chemical test for blood alcohol concentration if detained under suspicion of drunk driving;

nonresidents and unlicensed individuals who operated (or attempted to operate) a motor

vehicle in Maryland were deemed to have consented to take a test. As originally enacted,

the statute gave the MVA discretion to suspend driving privileges in a test refusal case. A

few years later, that statute was later recodified in its current location as part of the new

Transportation Article. Chapter 14, §2, Laws of Maryland 1977.

       In 1981, a number of bills were introduced in the General Assembly to toughen the

laws concerning drunk driving. Among those bills was Senate Bill 497 (1981), which

proposed to amend the law to eliminate MVA’s discretion in test refusal cases and mandate

a license suspension in such a case. As the bill moved through the General Assembly it

was amended to eliminate the express consent provision for Maryland licensees that had

appeared in the original law and to substitute an implied consent provision that applied to

both Maryland licensees and others – what is now subsection (a)(2). A status report in the

legislative file on the various drunk driving bills states that “[t]his amendment brings

Maryland into conformity with all other states and closes a loophole which permitted

juveniles to escape the chemical test requirement.”15 Legislative Bill File for Senate Bill




       15
          Although it is not entirely clear from the legislative file, the reference to
“juveniles” may have been a reference to the fact that the law generally prohibited issuing
                                           18
497 (1981). The bill was enacted with that amendment. Chapter 244, Laws of Maryland

1981. Except for later amendments not pertinent here, the same language appears in

subsection (a)(2) today.

       It is thus evident that the statute has always been intended to apply, at a minimum,

to anyone who holds a Maryland driver’s license. The 1981 amendment that resulted in

the current wording of subsection (a)(2) was not intended to limit the reach of the implied

consent, administrative per se law as it pertained to Maryland licensees but rather to close

a perceived “loophole” in its reach.         As this Court reasoned in Motor Vehicle

Administration v. Loane, 420 Md. 211, 226 (2011), the significance of subsection (a)(2) is

that “the reach of the Statute is broad; that is, the administrative license provisions apply

to any licensed driver …” Id. at 226-27 (emphasis added). Nor was subsection (a)(2)

intended to introduce additional issues into an administrative suspension hearing aside

from those specified in subsection (f)(7). See Motor Vehicle Administration v. Aiken, 418

Md. 11, 31-36 (2011) (prefatory language of subsection (a)(2) relating motorist consent to

CJ §10-302 through §10-309 did not permit individual to raise issues under those statutes

at suspension hearing).

       Reasonable Grounds v. Preponderance of Evidence

       Second, a showing that an officer had a reasonable grounds to believe that

something was true is different from proving by a preponderance of the evidence that it

was true. With respect to the former, the question is whether the officer’s belief was


driver’s licenses to individuals under 18 years old (and thereby obtaining express consent
from them), subject to certain exceptions. See TR §16-103.
                                            19
reasonable, in light of the information available to the officer at the time. The latter

question involves a weighing of evidence to arrive at the more persuasive conclusion. This

Court has interpreted the “reasonable grounds” standard to mean “reasonable articulable

suspicion”16 and to be a lower standard than preponderance of the evidence or probable

cause.17 It is based on the “totality of the circumstances” presented to the officer.18 For

example, in certain circumstances an officer may reasonably infer that an individual was

driving while impaired, even though the officer did not witness the individual operating

the car.     Motor Vehicle Administration v. Carpenter, 424 Md. 401 (2012) (officer

dispatched to accident scene reasonably inferred that individual who was present at the

scene and whose car was involved in accident had been driving while impaired even though

there was no direct evidence that the individual had been driving the car).

       It is not uncommon in the law for certain actions to be predicated upon “probable

cause” or “reasonable suspicion” or “reasonable grounds” while related proceedings might

be subject to a heavier burden of proof. For example, in the criminal law context, a judge

may issue a search warrant based upon a finding of probable cause that a crime has been

committed and that evidence of that suspected crime will be found in the place to be

searched. Even if a subsequent criminal prosecution related to the same facts results in an




       16
        Motor Vehicle Administration v. Shepard, 399 Md. 241, 254 (2007).
       17
         Motor Vehicle Administration v. Dove, 413 Md. 70, 95 (2010); Motor Vehicle
Administration v. Shea, 415 Md. 1, 19 (2010).
       18
            United States v. Arvizu, 534 U.S. 266 (2002); Shea, 415 Md. at 19.

                                              20
acquittal, that does not mean that the finding of probable cause was incorrect or that the

search warrant was invalid.

       To the extent that a preponderance of evidence standard can be said to apply at an

administrative license suspension hearing, it is that the MVA must show by a

preponderance of the evidence that the officer had reasonable grounds at the time the

officer requested the test. This is not the same thing as a showing, by a preponderance of

evidence, that the individual was in fact driving (or attempting to drive) while impaired.

       Summary

       As this Court has repeatedly held, the issues at play in a license suspension hearing

are limited to the issues enumerated in TR §16-205.1(f)(7)(i). See, e.g., Motor Vehicle

Administration v. Jones, 380 Md. 164, 177 (2004). In a test refusal case, the MVA is not

required to establish that the licensee was actually driving (or attempting to drive) while

impaired.   Rather, the statute requires a showing only that the MVA show by a

preponderance of the evidence that the investigating officer had reasonable grounds to

believe that the licensee was doing so.19




       19
          The Court of Special Appeals expressed this same straightforward interpretation
of the statute nearly two decades ago. See Reid v. State, 119 Md. App. 129, 138 (1998)
(“Whether a motorist was driving or attempting to drive while using alcohol is not one of
the questions the ALJ is authorized to answer”). In Reid, the question before the
intermediate appellate court was whether an ALJ’s determination in an administrative
suspension case based on a test refusal would have a collateral estoppel effect on a drunk
driving criminal prosecution.

                                            21
C.     Application to these Cases

       1.     MVA v. Styslinger

       It was undisputed that Mr. Styslinger had been drinking and that he declined to take

a breath test after being advised of the administrative sanctions for a test refusal. Thus, the

only remaining issue was whether Officer Pockett had “reasonable grounds to believe [that

Mr. Styslinger] was driving or attempting to drive while under the influence of alcohol...”

TR §16-205.1(f)(7)(i)1.

       The ALJ answered that question directly at the hearing. He found “that the police

officer who stopped or detained the licensee had reasonable grounds to believe that the

licensee was driving or attempting to drive a motor vehicle while under the influence of

alcohol.” That should have been the end of the analysis. Instead, the ALJ added an element

not required by the statute. In particular, the ALJ stated “I find that the licensee did not

drive or attempt to drive a motor vehicle” and later reiterated that “I find that the MVA has

not met its burden of proving by a preponderance of the evidence that the licensee drove

or attempted to drive.” But, in a test refusal case, the statute does not require the MVA to

prove, for purposes of upholding a suspension, that the licensee was actually driving (or

attempting to drive) a motor vehicle under the influence of alcohol. Rather, the MVA need

only show that the investigating officer had reasonable grounds to believe that the licensee

was doing so.20


       20
          Mr. Styslinger does not appear to disagree that, in a test refusal case, the MVA
must establish only that the officer had reasonable grounds to believe that a licensee was
driving (or attempting to drive) while impaired. He asserts that, without a live witness, the
MVA failed to make that showing and that the ALJ actually found that MVA’s evidence
                                             22
       It is undeniable that the ALJ in Mr. Styslinger’s case took great care to weigh the

evidence before him, even postponing the hearing in an effort to hear directly from the

officer. Nevertheless, the premise for much of that effort was legally incorrect. For

purposes of the administrative suspension, there was no need to resolve whether Mr.

Styslinger had actually driven (or attempted to drive) his vehicle under the influence of

alcohol at the time he was found passed out in the driver’s seat – only whether Officer

Pockett had reasonable grounds for believing that Mr. Styslinger had done so.

       Because the ALJ found the officer had “reasonable grounds” – all that was necessary

to support Styslinger’s suspension – we reverse the order of the ALJ and remand the case

for the affirmance of the suspension.




was insufficient despite the ALJ’s explicit statement that the officer had such reasonable
grounds. To accept Mr. Styslinger’s arguments, we would either have to hold that the ALJ
was clearly erroneous in finding that the officer had reasonable grounds or conclude that
the ALJ meant the opposite of what he said. Neither argument is persuasive.

        Finally, Mr. Styslinger appears to argue that because TR §16-205.1(a)(2) relates
“implied consent” to “any person who drives or attempts to drive,” the implied consent,
administrative per se law applies only to an individual when that individual is driving or
attempting to do so and, thus, that there must be proof of actual driving (or an attempt) for
the statute to apply in the first place. This argument was not raised by Mr. Styslinger at
the administrative hearing, but apparently was accepted by the Circuit Court although the
court noted that there was no law, other than possibly the Atterbeary decision, to support
the argument. For the reasons set forth in the previous section of this opinion, that
argument lacks merit, particularly with respect to a Maryland-licensed driver like Mr.
Styslinger. Moreover, at the hearing, Mr. Styslinger himself acknowledged that he had
driven his car that day before he visited the bars.

                                             23
       2.     MVA v. Krafft

       The ALJ in Mr. Krafft’s case appears to have made a similar error. At the hearing,

the ALJ summarized the facts set forth in the DR-15A form and stated that “I just can’t

conclude that the preponderance of the evidence establishes the MVA’s case and because

of that I’m going to take no action.”

       The ALJ’s comments appear to suggest that the ALJ believed that the MVA was

required to demonstrate by a preponderance of the evidence that Mr. Krafft had driven (or

attempted to drive) his vehicle while under the influence of alcohol. But, as explained

above, all that was required was for the MVA to establish that Trooper Dize had reasonable

grounds to believe that Mr. Krafft had done so.21

       Unlike the case with Mr. Styslinger, however, the ALJ in Mr. Krafft’s case never

made a finding – one way or the other – as to whether Trooper Dize had reasonable grounds


       21
          Before us, Mr. Krafft conceded that the MVA was not required to prove that he
actually drove (or attempted to drive) on the night in question. He interprets the ALJ’s
reference to a preponderance of the evidence standard as an allusion to SG §10-217, which
establishes a preponderance of evidence standard for most contested case proceedings
under the State Administrative Procedure Act. He articulates the appropriate standard as
“whether the MVA has persuaded the ALJ by a preponderance of evidence that [Trooper
Dize] had reasonable grounds … to believe that [Mr.] Krafft was driving while under the
influence or while impaired by alcohol.” He asserts that the ALJ’s cryptic comments at
the hearing and later on the OAH form actually applied such a standard and that it was a
failure of evidence by the MVA as a result of an “incompetent” investigation, rather than
application of an incorrect legal standard, that led to the no action disposition.

        As explained in the text of this opinion, in applying a preponderance standard, the
ALJ’s findings do not appear to analyze the reasonableness of the trooper’s belief, but
rather address the weight of the evidence as proof of actual driving. For that and for other
reasons mentioned in the text, we cannot give the ALJ’s remarks the same meaning as Mr.
Krafft.

                                            24
for such a belief. She made no statements at the hearing on that issue. On the OAH form

on which she documented her decision, the ALJ wrote “n/a” – presumably meaning “not

applicable” – in the block concerning whether the trooper had reasonable grounds for such

a belief. This may signify that the ALJ found that Trooper Dize lacked reasonable grounds,

based on all the evidence available to the trooper at the time that he encountered Mr. Krafft.

However, the ALJ also wrote “n/a” in the block concerning evidence of intoxication.

Given that it was undisputed that Mr. Krafft was intoxicated, “n/a” may signify that the

ALJ thought that both of those issues – reasonable grounds and intoxication – were not

relevant or were moot. (Elsewhere on the OAH form, the ALJ herself stated that “Clearly

the certification establishes the use of alcohol ….”).22 In other words, it did not matter to

the ALJ whether Mr. Krafft was intoxicated or whether the trooper had reasonable grounds

for his belief that Mr. Krafft had been driving in that state, in light of the ALJ’s conclusion

that there was insufficient evidence to prove that Mr. Krafft had actually driven or

attempted to drive that evening. If so, the ALJ was mistaken on the law.

       Other entries made by the ALJ on the OAH form are equally puzzling. In answering

the questions on the form about whether Trooper Dize had advised Mr. Krafft of his rights,

whether Trooper Dize had asked Mr. Krafft to take a breath test, and whether Mr. Krafft

had refused, the ALJ checked “no” as to each of those questions. Yet the uncontradicted



       22
          In his brief to us, Mr. Krafft concedes that there were reasonable grounds to
believe that he was under the influence of alcohol during his encounter with Trooper Dize,
but rather argues that there were not reasonable grounds to believe that he had been driving
in that condition.

                                              25
evidence at the hearing – in the sworn DR-15A form (Officer’s Certification and the

Advice of Rights) – was that Trooper Dize had provided the appropriate advice, that he

had requested that Mr. Krafft take a breath test, and that Mr. Krafft had refused. Mr. Krafft

did not submit any evidence to the contrary on any of those issues. In her oral remarks at

the hearing the ALJ did not address those issues or explain these entries on the OAH form.

       The bottom line is that the ALJ’s silence at the hearing on the issue of “reasonable

grounds” and her use of the term “n/a” in the pertinent block on the OAH form mean that

we do not know what the ALJ found with respect to this critical issue. Given the absence

of a finding on the issue of “reasonable grounds,” we must remand the case for clarification

under the standards set forth in this opinion.

                                             III

                                        Conclusion

       For the reasons set forth above, we hold that, in an administrative license suspension

hearing, the only issues to be determined are those enumerated by the statute. In a test

refusal case involving suspected alcohol impairment, those issues ordinarily are: (1)

whether the officer had reasonable grounds for believing that the individual was driving

(or attempting to drive) while impaired, (2) whether there was evidence of alcohol use by

the individual, (3) whether the officer properly advised the individual in accordance with

the statute when requesting the breath test, and (4) whether the individual refused the test.

       In both of these cases, the ALJ went beyond the statute and required the MVA to

prove by a preponderance of the evidence that the licensee had actually driven (or

attempted to drive) while impaired by alcohol. That was a legal error. In Mr. Styslinger’s
                                             26
case, the ALJ made all the findings required to uphold the administrative license

suspension and we simply reverse the decision and uphold the suspension. In Mr. Krafft’s

case, the ALJ either did not address the relevant issues or made clearly erroneous findings

in light of the uncontradicted evidence. We shall reverse and remand that decision for the

ALJ to clarify the decision.



                                            WITH RESPECT TO NO. 52, JUDGMENT OF
                                            THE CIRCUIT COURT FOR SOMERSET
                                            COUNTY VACATED AND CASE REMANDED
                                            TO THAT COURT WITH INSTRUCTIONS TO
                                            REMAND THE CASE TO THE OFFICE OF
                                            ADMINISTRATIVE HEARINGS FOR FURTHER
                                            PROCEEDINGS CONSISTENT WITH THIS
                                            OPINION.

                                            WITH RESPECT TO NO. 53, JUDGMENT OF
                                            THE CIRCUIT COURT FOR MONTGOMERY
                                            COUNTY REVERSED AND CASE REMANDED
                                            TO THE MOTOR VEHICLE ADMINISTRATION
                                            FOR ACTION CONSISTENT WITH THIS
                                            OPINION.

                                            IN EACH CASE, COSTS TO BE PAID BY THE
                                            RESPONDENT.




                                            27
