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Right to lawyer before BAC test is limited
Unanimous decision finds no such right in administrative context
Maryland motorists can’t keep their blood-alcohol concentration test out of evidence in a license-suspension hearing by arguing that they were denied the right to consult with an attorney before taking it, the state’s top court held Wednesday.
In its 7-0 decision, the Court of Appeals distinguished the administrative penalty of a suspended license from a criminal prosecution for a drunk driving, reiterating its 1984 holding in Sites v. State that drivers do have a limited due process right to consult an attorney when a positive blood-alcohol test could result in prosecution.
The court in Sites said drivers can consult with counsel but only if the lawyer can be reached soon enough as not to interfere with the test’s timely administration.
In finding no comparable right in suspension cases, the court said drivers in Maryland have impliedly consented to take a BAC test at a police officer’s request as a condition of having their license. By providing such consent, the drivers have essentially waived their right to counsel when the potential punishment is suspension of the license, the court said, noting the state’s strong interest in preventing drunk driving.
Under Maryland law, the state Motor Vehicle Administration can suspend for up to 120 days the license of any driver who refuses to take the BAC test. Subsequent refusals are punishable by suspensions of up to one year.
“A driver’s interest in the continued right to drive in Maryland is certainly an important one that can affect the individual’s ability to work and otherwise function in society,” Judge Robert N. McDonald wrote for the court.
“That interest must be weighed against the public interest to deter drunk driving and to protect the public, not to mention the impaired driver, from the consequences, often fatal, of impaired driving,” he added. “The implied consent, administrative per se law was designed to serve that interest by putting in place an effective administrative mechanism to remove impaired drivers from the roadways and to encourage all drivers to cooperate in a test to measure impairment.”
Attorney Leonard R. Stamm, who filed a brief in the case in support of motorists, criticized the court’s decision and the distinction it drew with criminal prosecutions.
Stamm asked how a police officer would know if the motorist stopped on suspicion of drunk driving will face an administrative suspension, and thus has no right to consult counsel, or criminal prosecution, and have a limited right.
“This lack of clarity from the court is bound to result in more suspects having their rights violated,” said Stamm, of Goldstein & Stamm P.A. in Greenbelt. He submitted the brief on behalf of the National College for DUI Defense and the Maryland Criminal Defense Attorneys’ Association.
The MVA said through counsel it was “pleased” with the court’s decision.
“The MVA does not have to worry about a request for counsel being an impediment to suspending a driver for either refusing the test or taking a test that requires a license suspension,” said Leight D. Collins, an assistant Maryland attorney general.
Attorney John K. Phoebus, who represented the losing motorist in the high-court case, said he was disappointed but not surprised by the ruling.
The Court of Appeals had indicated in a 2011 decision, Najafi v. Motor Vehicle Administration, that a right to counsel did not exist with regard to BAC testing of motorists in license-suspension cases, added Phoebus, a Crisfield solo practitioner.
Still, Phoebus said he wanted the court to make an exception for motorists — such as his client, April Marie Deering — who either have a lawyer “on speed dial” or could otherwise contact one quickly during the traffic stop.
“We weren’t looking for Gideon on the side of the road,” Phoebus said, referring to the 1963 U.S. Supreme Court decision that criminal defendants have a constitutional right to counsel.
“We had hoped that if a person has an attorney, that they would at least be able to reach out to that person for advice,” he added.
Still good law, for now
In its decision, the high court said its 30-year-old decision in Sites might not survive the next legal challenge in light of Supreme Court and other state-court rulings finding no right to consult an attorney before taking a BAC test even if a criminal prosecution is possible.
“In any event, we need not decide the continuing vitality of Sites to decide this case,” McDonald wrote.
“Even if Sites remains good law under a state constitutional theory, the ultimate question before us is whether the violation of any such right affects the imposition of an administrative sanction under [Transportation Article] Section 16-2051,” he added. “We hold that, even if a suspected drunk driver is denied the opportunity to consult counsel before deciding whether to take a breath test under the implied consent, administrative per se law, the driver remains subject to the administrative license suspension that the statute assigns to a test refusal or a particular test result.”
The decision was a victory for the MVA, which successfully urged the high court to reverse a trial judge’s ruling that Deering, the motorist, had a right to call her attorney.
Somerset County Circuit Court Judge D. William Simpson had overturned the MVA’s 90-day suspension of Deering’s license in 2012, which an administrative law judge had upheld.
Simpson said Deering’s due process rights were violated when the Fruitland police officer who pulled her over shortly after midnight on May 3, 2012, denied her request to call her attorney before she submitted to a BAC test at the Maryland State Police barracks in Princess Anne about 90 minutes later.
The test showed a reading of 0.16, double the legal limit, according to papers filed at the high court.
MCDONALD
WHAT THE COURT HELD
Case:
Motor Vehicle Administration v. April Marie Deering. CA No. 52, Sept. Term 2013. Reported. Opinion by McDonald, J. Argued Jan. 9, 2014. Filed May 21, 2014.
Issue:
Does a motorist have a right to consult with an attorney before submitting to a blood-alcohol concentration test that could result in a suspended driver’s license?
Holding:
No; the driver impliedly consented to the test as a condition of the license and essentially waived the right to consult counsel.
Counsel:
Leight D. Collins for petitioner; John K. Phoebus for respondent.
RecordFax #14-0521-20 (34 pages).
