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Borbon v. Motor Vehicle Administration4/8/1997
Opinion by Rodowsky, J.
This is an action for judicial review of the suspension by the Motor Vehicle Administration (MVA) under the implied consent law of the petitioner's motor vehicle operator's license. The issue is whether a result of "insufficient breath" reported by a breath alcohol testing device suffices, in and of itself, to prove that the motorist refused a breath test.
Maryland Code (1977, 1992 Repl. Vol., 1996 Cum. Supp.), § 16-205.1 of the Transportation Article (TR) provides for suspensions of motor vehicle operators' licenses for refusals to submit to chemical tests for intoxication. TR § 16-205.1(f)(8)(i) lists the following four elements that must be present before the MVA may suspend the driver's license or privilege:
"(i) After a hearing, the 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 driving ... while intoxicated ...;
2. There was evidence of the use by the person of alcohol ...;
3. The police officer requested a test after the person was fully advised 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 0.10 or more at the time of testing."
In this case, at the MVA hearing pursuant to TR §§ 16-205.1 and 12-206, neither the arresting officer, nor the breath test machine operator, nor the motorist testified. The factual record consists of the "ADVICE OF RIGHTS," Form DR-15, the "OFFICER'S CERTIFICATION AND ORDER OF SUSPENSION," Form DR-15A, the printout from the breath test machine, and the "NOTIFICATION TO DEFENDANT OF RESULT OF TEST FOR ALCOHOL CONCENTRATION," DPSCS-MSP, Form 33. These documents reflect the following facts.
On December 24, 1994, at about 4:00 a.m., Officer D. Dichoso of the Prince George's County Police observed the petitioner, Jose Borbon (Borbon), driving on the wrong side of the road in the 8500 block of Indian Head Highway, Oxon Hill. During the interview following the officer's stop of Borbon's vehicle, the officer observed "a strong odor of an alcoholic beverage on [Borbon's] breath, his eyes very glassy, and slurred speech." Borbon had difficulty standing, and he could not perform field sobriety tests. Borbon either read, or had read to him, the advice of rights, as evidenced by his signature on Form DR-15. A check in a block on that form indicated "YES - Agree to submit to an alcohol concentration test." There was no mark in the block indicating "NO - Alcohol Concentration Test Refused."
Borbon was taken to Station IV of the Prince George's County Police Department where Corporal K. McSwain undertook to perform a test for alcohol concentration utilizing an Intoximeter 3000 that bore the serial number 5081. The Intoximeter 3000 is computer controlled. 3 D.H. Nichols, Drinking/Driving Litigation, Criminal and Civil § 30:06, at Chap. 30--Page 24 (1995) (Nichols). The computer printout for the test in the instant matter, excluding identifying information, reads as follows:
"
04:40
5081
TEST VALUE TIME
BLK .000 04:48
EXTSTD .101 04:50
BLK .000 04:50
INSUFF. BREATH"
The record further shows that, on Form DR-15A, Officer Dichoso checked the box reading, "You refused to take a test to determine alcohol concentration when requested by the Poli
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