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Borbon v. Motor Vehicle Administration4/8/1997
chine operator testified that the licensee was blowing air out of the sides of her mouth, while the licensee testified that she made a good faith effort to comply. The trial court believed the licensee and reversed the suspension. The Pennsylvania Commonwealth Court reversed the trial court, holding that, "given the testimony of the machine operator, [the licensee's] evidence was legally insufficient to avoid the burden placed on her ... to produce evidence that she was physically unable to take the test." Id. at 594-95. The holding in Jones was described in Berta to be that "such self-serving testimony standing alone was insufficient as a matter of law, absent competent medical evidence, to show that Jones was unable to take the test." Berta, 549 A.2d at 264.
This very rigid Pennsylvania approach is inconsistent with Maryland administrative law and practice. Even though MVA suspension hearings under the implied consent law are designed to permit the MVA's case to be made in most instances from a documentary record, it remains the duty of the ALJ to make credibility determinations where the MVA's documentary case conflicts with the testimony of the licensee. See Motor Vehicle Admin. v. Karwacki, 340 Md. 271, 666 A.2d 511 (1995). Nor will we adopt only that portion of the Pennsylvania rule that judicially places the burden of proof of an innocent explanation on the licensee in all cases, based on the report of insufficient breath alone. Given that some cases of insufficient breath are explained by inability and not by unwillingness, the rule sought by the MVA would confer on the machine the ALJ's function of determining whether the MVA has made out enough of a case of refusal to require the licensee to produce evidence.
For the foregoing reasons, we reverse the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY REVERSED. COSTS IN THIS COURT AND IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY TO BE PAID BY THE RESPONDENT, MOTOR VEHICLE ADMINISTRATION.
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