Handling Motor Vechicle Administration (Mva) Hearings

JurisdictionMaryland

VI. HANDLING MOTOR VECHICLE ADMINISTRATION (MVA) HEARINGS219

A. General Powers of the MVA

The MVA is authorized to promulgate regulations,220 conduct investigations221 and subpoena witnesses222 in order to carry out the Maryland Vehicle Laws. The final decision whether to issue a subpoena is within the discretion of the MVA.223

B. Records are Public Information

Generally, all MVA records are open for public inspection.224 However, certain records over five years old may be classified as confidential and not open to public inspection.225 Only a three year driving record is open to public inspection, unless the person in interest, his attorney or a governmental agency requests the record.226

The Maryland Public Information Act227 authorizes the custodian of records to furnish a copy or a certified copy of the records of the Administration. Inquiries must be submitted in writing and the MVA is authorized to charge a fee to recover the costs of maintaining the files and retrieving and producing the documents.228 Personal identifying information may not be disclosed except as designated in State Gov't § 10-616(p).

Records of the Medical Advisory Board, of PBJ dispositions in Transp. § 21-902 cases, of a first offense of a test result of .08 or more, and other records designated by law or regulation are confidential.229

C. Hearings

1. Notice

a. Notice of a hearing is to be given by personal delivery or first-class mail to the person at the address of record given to MVA.230

b. Notice is effective five days after its deposit in the mail.231

c. Notice of point system suspensions and revocations must be sent by certified mail or personally delivered.232

d. Notice to a licensee must be sent ten days before the scheduled hearing.233

e. The notice may vary slightly depending upon whether the proposed sanction may be imposed only after a hearing,234 or whether the licensee has a right to request a hearing prior to the imposition of the sanction.235

f. Where a licensee has the right to request a hearing prior to MVA action, notice of the right to request a hearing must be provided.236

g. The contents of a notice237 must include:

(i) Date, time place and nature of the hearing;

(ii) Legal authority and jurisdiction of the MVA to hold the hearing;

(iii) Facts in sufficient detail to enable a party to prepare his case;

(iv) Nature of the proposed action;

(v) Right of party to call witnesses and offer documentary evidence;

(vi) When applicable, the right of a party to request the subpoena of witnesses and the costs thereof;

(v) Advice that a copy of the hearing procedures is available on request and the costs to obtain a copy;

(vi) Right of party to be represented by counsel; and

(ix) Notice that proposed action will be taken if licensee fails to appear at the hearing.

h. Notice of agency action may be consolidated with the notice of hearing.238

i. MVA hearings are to be conducted in accordance with the Administrative Procedure Act—Contested Cases ("APA").239

2. Right to be represented by counsel

A licensee has the right to be represented at the administrative hearing by counsel, at the licensee's own expense.

3. Right to cross-examine witness

There is no constitutional right to confront witnesses in a hearing before the MVA.240

There are statutory grounds allowing for the cross-examination of witnesses.241 However, the right to cross-examine witnesses at MVA hearings conducted under Transp. § 16-205.1 is limited. The arresting officer's and test technician's sworn certification is prima facie evidence of a test refusal or test result of 0.08 or more.242 For this reason, the arresting officer and test technician are not frequently subpoenaed for the hearing.243

If there is a "genuine issue" and the testimony will not be repetitious, irrelevant or immaterial, an ALJ may allow issuance of a subpoena for a witness in a Transp. § 16-205.1 case.244 The determination of whether these grounds exist for issuing the subpoena may be made by the MVA or deferred to the ALJ conducting the administrative hearing.245 The ALJ may, on one hand, determine the credibility of the driver without live testimony from the officer, where there is a genuine issue but no request for a subpoena.246 On the other hand, the ALJ may not decide credibility where a genuine issue is presented and there is a request for a subpoena.247

4. Evidence

A licensee may copy all evidence that will be used against him at the hearing. A reasonable fee may be charged. A licensee has the right to submit evidence.248

The APA rules of evidence249 apply to MVA hearings.250 Documentary and hearsay evidence are admissible.251 Reliability is the primary test for admissibility, i.e., probative evidence that a reasonable person would accept in conducting his affairs.252 For example, a letter from an employer should be on a letterhead or otherwise substantiated by documentary evidence. Incompetent, irrelevant, immaterial and repetitious evidence is inadmissible.253

5. Final decision

Pursuant to Transp. § 12-208 and State Gov't §§ 10-220 and 10-221, the proposed or final decision of an ALJ must contain findings of fact and conclusions of law. A copy of the decision must be served by mail or by personal delivery no later than 30 days after the hearing.254

D. Judicial Review

The circuit court may review an MVA hearing decision pursuant to State Gov't § 10-222 and Transp. § 12-209.255 If permitted by statute and regulations, the MVA may stay the administrative sanction pending judicial review.256

E. Suspensions/Revocation/Refusal/Cancellations

1. Generally

The MVA may cancel a driver's license when (1) the licensee was not entitled to a license at the time the license was issued; (2) the application is inadequate; or (3) the license was procured by fraud.257

A suspension or revocation of a driver's license may be imposed pursuant to statutory authority and is effective at the time the decision is rendered by the MVA.258 Credit for the term of suspension or revocation begins only after the MVA is in possession of the license, or the licensee certifies that the license is not in his possession and will be surrendered if it comes into his possession.259 Generally, the MVA may not suspend a license for more than one year, although a license may be suspended indefinitely for an individual who cannot drive safely because of a physical or mental condition.260

A license may be suspended or revoked if the licensee is found to be an unfit, unsafe or habitually reckless or negligent driver.261 In determining whether a driver is unfit or unsafe, the ALJ must determine that the licensee is unfit or unsafe at the time of the hearing—not when the offense occurred. The "unsafe" standard is "whether the licensee possesses some characteristic that is likely to make him an unsafe driver. The focus is on the driver, not on the offense of which the driver was convicted."262

A license may be suspended or revoked if a licensee permits an unlawful or fraudulent use of a license,263 if a licensee is convicted of moving violations so often as to indicate an intent to disregard the traffic laws and the safety of others;264 and if a licensee commits an offense in another state that, if committed in Maryland, would be grounds for a suspension or revocation.265 Thus, an out of state conviction of DUI will result in Maryland taking suspension/revocation action. See also the provisions of the Driver License Compact.266

A license may be suspended or revoked if the licensee falsely certifies in an application for title or registration that he has the required security.267

A license may be suspended or revoked, as appropriate, after a reexamination. A license may also be suspended for a failure to submit to a reexamination.268

A licensee who holds a provisional driver's license under Transp. § 16-111 may have his or her license suspended or revoked, in addition to incurring any other sanction that might apply as the result of a moving violation. Pursuant to Transp. § 16-213(c), the Administration may impose the following penalties:

(1) For a first offense, shall require the offender to attend a driver improvement program under § 16-212 of this subtitle;

(2) For a second offense:

(i) For an adult, may suspend the offender's license for up to 30 days; and

(ii) For an individual under the age of 18 years, may:

1. Suspend the offender's license for up to 30 days; and

2. Impose, on completion of the suspension, an education and employment only restriction on the offender's license effective for 90 days;

(3) For a third offense:

(i) For an adult, may suspend the offender's license for up to 180 days; and

(ii) For an individual under the age of 18 years, may:

1. Suspend the offender's license for up to 180 days;

2. Require the offender to attend a driver improvement program designed for young drivers under § 16-212 of this subtitle; and

3. Impose, on completion of the suspension, an education and employment only restriction on the offender's license effective for 180 days; and

(4) For a fourth or subsequent offense:

(i) For an adult, may suspend or revoke the offender's license for up to 180 days; and

(ii) For an individual under the age of 18 years, may:

1. Revoke the offender's license for not less than 180 days; and

2. Require the offender, in addition to applying for reinstatement as required under § 16-208(b) of this subtitle, to pass the examinations required under § 16-110 of this title.

The provisional license holder who commits an offense or whose license is suspended must "restart" the 18-month provisional period.269

2. Alcohol related sanctions270

a. A license may be revoked if the licensee is convicted under Transp. § 21-902(a) of driving while under the influence of alcohol and shall be revoked if convicted of vehicular homicide while driving drunk or drugged.271

b. A license may be revoked for three convictions under Transp. § 21-902(b) or (c) of driving while under the
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