Maryland Montgomery County Driving Intoxicated Restricted Improper Sobriety Test Lawyers Attorneys

ROBERT CHARLES EMBREY V

ROBERT CHARLES EMBREY V. MOTOR VEHICLE ADMINISTRATION

COURT OF APPEALS OF MARYLAND

September 15, 1995, FILED

On March 25, 1994, Robert Charles Embrey, the petitioner, was stopped by a Montgomery County police officer for driving while intoxicated. 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. 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'slicense 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.

Issue:

Whether the issuance of a restricted license to the petitioners amounts to suspension of license pursuant to 16-205.1?

Unless there is a license suspension, there is nothing to modify or any need to issue a restrictive license. Consistent with the provisions of 16-205.1(m). In light of the clear legislative intent behind the Administrative Per Se law, 16-205.1, it would be "unreasonable, illogical, or inconsistent with common sense" to construe that section to mean that the prior administrative proceeding resulting in the petitioner being issued a restricted license did not also result in a suspension of the petitioner's license. That interpretation would wholly undermine the Legislature's efforts to combat drunk driving. Unless there is a license suspension, there is nothing to modify or any need to issue a restrictive license. Hence this court affirmed the issuance of the prior restricted license meant that there had been a suspension within the meaning of 205.1.

The court affirmed the decision that the driver was not entitled to a restricted license after he was arrested for driving under the influence of alcohol.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

Maryland Montgomery County Driving Intoxicated Restricted Improper Sobriety Test Lawyers Attorneys

By: Atchuthan Sriskandarajah

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