Embrey v. Motor Vehicle Administration9/15/1995
OPINION BY Bell, J.
The issue this case presents is whether, pursuant to Maryland Code (1977, 1992 Repl. Vol., 1994 Cum. Supp.) § 16-205.1(n)(ii) of the Transportation Article, a motorist, who, as a result of a prior detention on suspicion of driving or attempting to drive while intoxicated or under the influence of alcohol and after failing a breath test for blood alcohol concentration , has before been issued a restricted driver's license for employment is entitled to the issuance of another modified or restricted license for a second breath test failure occurring within five years of the first such failure. This issue requires us to interpret § 16-205.1(n)(ii). The Administrative Law Judge (ALJ) construed that section to prohibit the issuance of a restricted license in this case and the circuit court agreed. We shall affirm those decisions.
I.
On March 25, 1994, Robert Charles Embrey, the petitioner, was stopped by a Montgomery County police officer for driving while intoxicated. According to the Officer's Certification and Order of Suspension, Form DR-15A, the officer observed the petitioner driving his car at a high rate of speed. After stopping the petitioner, the officer noted a strong odor of alcohol, whereupon he directed the petitioner to perform certain field sobriety tests. As a result of his poor performance on the tests, the petitioner was placed under arrest and charged with driving while intoxicated.
The petitioner agreed to take a breath test. Based upon the test result, which indicated an alcohol concentration of 0.13, and pursuant to § 16-205.1(b)(3), the arresting officer, inter alia, confiscated the petitioner's driver's license and served him with an order of suspension. As was his right, see § 16-205.1(f), the petitioner requested an administrative hearing to show cause why his driver's license should not be suspended.
At that hearing, the ALJ introduced, on behalf of the Motor Vehicle Administration, the respondent, without objection, inter alia, the Officer's Certification and Order of Suspension; Form DR-15, an Advice of Rights Form, see Motor Vehicle Admin. v. Chamberlain, 326 Md. 306, 309, 604 A.2d 919, 920 (1992); the breathalyzer test results; and a copy of the petitioner's driving record. The petitioner then testified that he needs a license to attend alcohol prevention or treatment programs and for his employment. He acknowledged that, in 1991, he had received a restricted license as a result of a prior proceeding pursuant to § 16-205.1. The petitioner argued, however, that, although this was his second offense, a suspension was not mandatory because he never was suspended for his first offense. Noting that, on the prior occasions, he had been issued a thirty day restricted license , he points out that his driver's record reflected no suspension of his license on that occasion. Believing that the petitioner was not eligible for a modified or restricted license, having resolved the issues to be decided at the hearing against him, the ALJ suspended the petitioner's driver's license for ninety days. She rejected the petitioner's request that the suspension be modified to a restricted license, reasoning that the prior suspension of the petitioner's license for a test failure, occurring within five years of the instant failure, rendered him ineligible for a modified or restricted license.
The petitioner sought judicial review of that decision in the Circuit Court for Montgomery County, which affirmed the decision of the ALJ. The petitioner then timely filed a petition for certiorari, pursuant to Maryland Code (1984, 1995 Repl. Vol.), § 12-305 of the Courts and Judicial Proceedings Article , which we gran
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