PETITION OF:



IN THE

COURT OF APPEALS OF MARYLAND

September Term 2002

No. 68

MOTOR VEHICLE ADMINISTRATION,

Appellant,

vs.

MICHAEL PATRICK LYTLE,

Appellee.

On Writ of Certiorari to the

Circuit Court for Anne Arundel County

(the Honorable Joseph P. Manck)

BRIEF OF APPELLEE

MICHAEL PATRICK LYTLE

1546 Park Lane

Pasadena, Maryland 21122

410.439.4942

Pro Se

December 10, 2002

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATEMENT OF THE CASE 1

QUESTION PRESENTED 2

STATEMENT OF FACTS 2

ARGUMENT 3

I. MVA’S ARGUMENTS ARE WAIVED OR OTHERWISE NOT PROPERLY BEFORE THE COURT BECAUSE THEY WERE NEVER RAISED IN THE ADMINISTRAIVE HEARIIN 3

A. Certiorari Should Be Dismissed As Improvidently Granted Because MVA Failed to Raise Any Issues During The Administrative Proceedings 3

B. Alternatively, MVA’s Entire Argument “III. The MVA Proved Lytle’s Alcohol Concentration As A Matter Of Law Because He Failed To Submit Any Competent Evidence To Overcome The Rebuttable Presumption That His 0.10 Certified Test Result Was Accurate” Has Been Waived Or Is Otherwise Not Properly Before The Court 4

II. THE ALJ WAS CORRECT, AS A MATTER OF LAW, BY RULING THAT MR. LYTLE’S BLOOD ALCOHOL CONCENTRATION RESULTS SHOULD TAKE INTO CONSIDERATION THE 0.01 MARGIN OF ERROR PROVIDED BY THE TOXICOLOGIST COMMISSION REPORT 5

A. Standard and Scope of Review of Administrative Decisions 6

B. The ALJ was Correct in Ruling that the Maryland Legislature, Through the Passage of Section 16-205.1 of the Transportation Article of the Annotated Code of Maryland, Allowed Suspension of Driving Privilege Based Upon the Blood Alcohol Concentration of the Driver and Not Simply Based on the Test Results 7

1. The statute refers to “alcohol concentration” and “test results” in equal proportions. The “test results indicating an alcohol concentration” language of the statute is ambiguous for purposes of resolving this question 7

2. The ALJ’s Decision is Correct and Consistent with the Canons of Statutory Construction 8

3. The ALJ’s Decision is Correct and Consistent with the Legislative History 10

C. The ALJ’s Decision is Consistent with Holdings in Foreign Jurisdictions 12

D. Mr. Lytle has a Property Right in his Diving Privilege that Cannot Be Suspended Without the Protections of Due Process 13

III. MR. LYTLE SUBMITTED, THE ALJ ACCEPTED, AND MVA DID NOT OBJECT TO, EVIDENCE TO REBUT THE ACCURACY OF THE TESTING EQUIPMENT 14

A. To The Extent That MVA’s Regulations Do Not Allow Mr. Lytle To Rebut The Accuracy Of The Testing Equipment, They Exceed Their Statutory Authority 14

B. The Regulations of the Toxicologist are Competent Evidence that Mr. Lytle Had Less Than a 0.10 Alcohol Concentration 15

C. The MVA Misinterprets The Toxicologists Regulations Regarding The Accuracy Of The Testing Equipment 16

CONCLUSION 17

APPENDIX Apx. 1

TABLE OF AUTHORITIES

Court of Appeals of Maryland

Borbon v. MVA, 345 Md. 267 (1996) 15

Brodie v. MVA, 367 Md. 1 (2001) 3, 4

Bulluck v. Pelham Woods Apts., 283 Md. 505 (1978) 6

Courtney v. Board of Trustees, 285 Md. 356 (1979) 6

Hyle v. MVA, 348 Md. 143 (1997) 9

Mehrling v. Nationwide Ins. Co., 371 Md. 40, 65 (2002) 6

Montgomery County v. Buckman, 333 Md. 516 (1994) 9

State v. Pagano, 341 Md. 129 (1996) 9

Transportation v. Armacost, 299 Md. 392 (1984) 13

Court of Special Appeals of Maryland

Committee for Responsible Development of 25th Street v. Mayor and City Council of Baltimore, 137 Md. App. 60 (2001) 9

Galludet University v. National Society of the Daughters of the American Revolution, 117 Md. App. 171 (1997). 9

Maryland State Retirement and Pension Systems v. Martin, 75 Md. App. 240 (1988) 4, 5

Young v. Anne Arundel County, 146 Md. App. 526(2002) 7

Supreme Court of the United States

Illinois v. Batchelder, 463 U.S. 1112 (1983) 13

Matthews v. Eldridge, 424 U.S. 319 (1976) 13

Other State Cases

Barcott v. State of Alaska, Dept. of Public Safety, 741 P.2d 226 (Alaska 1987) 12

State v. Bjornson, 271 N.W. 2d 839 (Neb. 1978) 12, 13

State v. Boehmer, 613 P.2d 916, 919 (Hawaii 1980) 13

Haynes v. Alaska, 865 P.2d 753 (Alaska 1993) 12

State v. Keller, 113 672 P.2d 412 (Wash. App. 1983) 13

State v. Prestier, 455 N.E.2d 24 (Ohio Misc.1982) 13

Statutes

Md. Code Ann., Transp. I § 16-205.1 passim

Other Authorities

1989 Md. Laws ch. 284 § 1 9, 10

IN THE COURT OF APPEALS OF MARYLAND

September Term 2002

No. 68

MOTOR VEHICLE ADMINISTRATION,

Appellant,

vs.

MICHAEL PATRICK LYTLE,

Respondent.

On Writ of Certiorari to the

Circuit Court for Anne Arundel County

(the Honorable Joseph P. Manck)

BRIEF OF APPELLEE

STATEMENT OF THE CASE

Respondent Michael Patrick Lytle, (hereinafter “Mr. Lytle”) accepts and incorporates Petitioner Motor Vehicle Administration’s (hereinafter “MVA”) Statement of the Case except that Mr. Lytle disagrees with the following two portions of MVA’s Statement of the Case.

First, MVA paraphrases the ALJ incorrectly when MVA states “The ALJ decided that although the Motor Vehicle Administration . . . submitted a certified 0.10 test result from Lytle, it ‘failed to prove by a preponderance of the evidence that Mr. Lytle had an alcohol concentration of 0.10 or greater at the time of testing.’” (Brief of Petitioner at 2).

Although Lytle does not suggest that the MVA did not submit a certified test result, Lytle disagrees with the inference made by MVA that the ALJ specifically made any ruling regarding, or in any way based his decision on, whether the MVA had submitted a certified test result.

The ALJ’s conclusion of law reads: “Based on the foregoing Findings of Fact and Discussion, I conclude as a matter of law that the MVA has failed to prove by a preponderance of the evidence that Mr. Lytle had an alcohol concentration of 0.10 or more at the time of testing.” (E.8). The ALJ never mentioned a “certified test result” in his decision with Findings of Fact and Conclusions of Law. (E. 1-8).

Second, the MVA fails to point out that (1) the MVA was not represented at the hearing, (2) the ALJ held the matter sub curia and granted Lytle the opportunity to submit a memorandum of law in support of his position, and (3) that the MVA elected to not respond to Lytle’s motion or memorandum. (E.2).

QUESTION PRESENTED

Whether a certified and unrebutted 0.10 result from a chemical breath test for alcohol content is sufficient evidence of an alcohol concentration of 0.10 or more mandating a driver’s license suspension under the administrative per se provisions of Transportation Article § 16-205.1?

STATEMENT OF FACTS

For the purposes of judicial review, Lytle accepts and incorporates MVA’s Statement of Facts in its Brief, except that Lytle notes the following as necessary to correct or amplify:

Statutory Framework

MVA’s Statement of Facts section captioned “Statutory Framework” (Brief of Petitioner at 2) is deficient in that it fails to mention Section I(C) of The Regulations of the Toxicologist, Post Mortem Examiners Commission. That Section provides:

“No scientific measurement is unequivocally precise. All such measurements have an accepted scientific range of accuracy. For the measurement of breath and blood tests for alcohol content, the accepted scientific range of accuracy is plus or minus 0.01 of the reported result.”

(E.28) (emphasis added). Inasmuch as this provision of the regulations is the centerpiece of the controversy, it should have been included.

The Lytle Case

MVA’s Statement of Facts section captioned “The Lytle Case” is incorrect in that it states: “Lytle submitted no evidence to rebut the certified test result in his case but argued that the result should be “downgraded” to a reported result less than 0.10 based on the Regulations of the Toxicologist.” (Brief of Petitioner at 7).

Lytle contends that the record is not supportive of MVA’s position that “Lytle submitted no evidence to rebut…” Lytle did submit evidence to rebut the certified test result. (E.51, 53, 59, 73-74).

ARGUMENT

I. MVA’S ARGUMENTS ARE WAIVED OR OTHERWISE NOT PROPERLY BEFORE THE COURT BECAUSE THEY WERE NEVER RAISED IN THE ADMINISTRAIVE HEARING.

A. Certiorari Should Be Dismissed As Improvidently Granted Because MVA Failed to Raise Any Issues During The Administrative Proceedings.

In Brodie v. MVA, 367 Md. 1 (2001), the petitioner raised an issue on judicial review of an MVA decision that was never raised during the administrative proceedings. The Circuit Court ruled against the petitioner on the merits of the unpreserved issue and the petitioner petitioned for a Writ of Certiorari. Id. at 3. This Court granted certiorari (on the unpreserved issue) for the purpose of making clear that “in an action for judicial review of an agency’s decision, ordinarily, a reviewing court may not pass upon issues presented to it for the first time on judicial review and that are not encompassed in the final decision of the administrative agency. Stated differently, a court will review an adjudicatory agency decision solely on the grounds relied upon by the agency.” Id. at 4 (citations omitted).

Because MVA made no argument at the initial hearing, all of its arguments are waived or are otherwise not properly before this Court. MVA (1) failed to object to the introduction of any evidence, (E. 44-76), (2) failed to respond to Lytle’s Memorandum of Law (E. 2), or respond in any way, at the agency level, and (3) appeared at the hearing “on the record” only. (E. 44-76).

Certiorari should be dismissed as improvidently granted.

B. Alternatively, MVA’s Entire Argument “III. The MVA Proved Lytle’s Alcohol Concentration[1] As A Matter Of Law Because He Failed To Submit Any Competent Evidence To Overcome The Rebuttable Presumption That His 0.10 Certified Test Result Was Accurate” Has Been Waived Or Is Otherwise Not Properly Before The Court.

Judge Eldridge, writing for a unanimous Court in Brodie, supra noted that “[s]ince Brodie’s [petitioner’s] entire challenge to the administrative decision was based on an issue not raised before the agency, the Circuit Court should have affirmed the administrative decision without reaching the issue…Likewise, we shall uphold the decisions below without reaching the only issue presented to us.” Brodie, 367 Md. at 4. (internal quotations and citations omitted). Likewise, Maryland State Retirement and Pension Systems v. Martin, 75 Md. App. 240 (1988) provides as follows:

a reviewing court is restricted to the record made before the administrative agency, and is confined to whether, based upon the record, a reasoning mind reasonably could have reached the factual conclusion reached by the agency. Circuit court's review of an administrative agency decision is ordinarily restricted to evidence in the record developed before the agency. Judicial review must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment. Judicial review, particularly in appeals from administrative bodies, must be limited to the determination based on the record. Administrative agency decision must stand or fall on basis used by the agency. Proper focus of reviewing court is on reasons given by administrative authority.

Id. at 245-46 (internal citations omitted). The MVA argues, for the first time on judicial review of its original agency decision, that “The MVA proved Lytle’s Alcohol Concentration as a Matter of Law Because He Failed to Submit Any Competent Evidence to Overcome the Rebuttable Presumption That His 0.10 Certified Test Result Was Accurate”. (Brief of Petitioner at 16).

MVA did not make this argument at the initial hearing. (E.44-76). The MVA made this argument for the first time on judicial review. The agency’s decision did not encompass this issue. (E. 1-8). MVA has waived this argument and it is not otherwise properly before this Court.

This Court ought not entertain the argument.

II. THE ALJ WAS CORRECT, AS A MATTER OF LAW, BY RULING THAT MR. LYTLE’S BLOOD ALCOHOL CONCENTRATION RESULTS SHOULD TAKE INTO CONSIDERATION THE 0.01 MARGIN OF ERROR PROVIDED BY THE TOXICOLOGIST COMMISSION REPORT.

There is no dispute that the breath sample Mr. Lytle provided registered a .10 reading on the Intox EC/IR. The question is if the Motor Vehicle Administration (MVA) should take into consideration the .01 scientific margin of error provided for by the Toxicologist Commission Report for blood alcohol concentration reading from the Intox EC/IR machine.

The Toxicologist Commission Report provides that “no scientific measurement is unequivocally precise. All such measurements have an accepted scientific range of accuracy. For the breath and blood tests for alcohol content, the accepted scientific range of accuracy is plus or minus 0.01 of the reported result.” (E.28) Commission Report, Section I(C), Alcohol Tests Generally (emphasis added). Mr. Lytle’s reported test results were 0.10. Because his reported test results were .10, the variance of .01 should be deducted. Once the variance is taken into consideration, Mr. Lytle’s cannot be said to have driven with a blood alcohol concentration any higher than .09.

The variance is not a small one. At the time of Mr. Lytle’s arrest, the alcohol concentration required to trigger §16-205.1 was 0.10. The accepted scientific range of accuracy is 0.01. The variance is 10%. When calculated on both sides of the 0.10 triggering concentration (0.09 to 0.11), the variance is 20%. Moreover, the alcohol concentration required to trigger § 16-205.1 now is 0.08. The variance is now 12%, or 24% on both sides (.07 to .09) of the .08 line.

A. Standard and Scope of Review of Administrative Decisions

The decision of the ALJ is presumptively valid and the decision must be reviewed in a light favorable to the non-moving party. See, Bulluck v. Pelham Woods Apts., 283 Md. 505 (1978); Courtney v. Board of Trustees, 285 Md. 356 (1979).

Judicial review of administrative action differs from appellate review of a trial court judgment. In the latter context the appellate court will search the record for evidence to support the judgment and will sustain the judgment for a reason plainly appearing on the record whether or not the reason was expressly relied upon by the trial court. However, in judicial review of an agency action the court may not uphold the agency order unless it is sustainable on the agency's findings and for the reasons stated by the agency…In order to apply the appropriate standard of review ... the reviewing court first must know how and why the agency reached its decision. It must know what it is reviewing.

Mehrling v. Nationwide Ins. Co., 371 Md. 40, 65 (2002) (internal citations omitted).

We do not defer to the agency's legal conclusions. In other words, we may always resolve whether the agency made an error of law and we are not bound by the Board's interpretation of the law. Rather, when the question before the agency involves one of statutory interpretation or an issue of law, our review is more expansive.

Nevertheless, the agency's decision is considered prima facie correct, and an appellate court must view that decision in the light most favorable to the agency[2]. Moreover, even with regard to some legal issues, a degree of deference should be accorded the position of the administrative agency. Therefore, an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. The expertise of the agency in its own field should be respected.

Young v. Anne Arundel County, 146 Md. App. 526, 568-69 (2002) (internal citations omitted).

B. The ALJ was Correct in Ruling that the Maryland Legislature, Through the Passage of Section 16-205.1 of the Transportation Article of the Annotated Code of Maryland, Allowed Suspension of Driving Privilege Based Upon the Blood Alcohol Concentration of the Driver and Not Simply Based on the Test Results.

1. The statute refers to “alcohol concentration” and “test results” in equal proportions. The “test results indicating an alcohol concentration” language of the statute is ambiguous for purposes of resolving this question.

Section 16-205.1 grants the MVA the right to suspend driving privileges if the individual drove with “an alcohol concentration of 0.10 or more at the time of testing.” Id. at § 16-205.1(f)(1)(ii)(1) (emphasis added). The ALJ agreed with Mr. Lytle’s argument that § 16-205.1 focused on the actual blood alcohol content of the driver at the time of testing and not just the test results that the Intox EC/IR machine reported.

MVA erroneously asserts that the test results should control and not the actual alcohol concentration of the subject at the time of testing. (Brief of Petitioner at 9). The term “alcohol concentration” appears in twenty-two subsections of § 16-205.1.[3] MVA overlooks the fact that every time the statute refers to “test results,” it makes it clear that the “test results” should reflect the actual “alcohol concentration” of the tested subject. In fact, the legislature defined the word “test” to specifically mean “a test of a person’s breath . . . to determine alcohol concentration.” § 16-205.1(a)(1)(iii)(1).

The ALJ found that the “test results indicating an alcohol concentration” language of § 16-205.1 is ambiguous for purposes of resolving the question of whether the legislature (1) specifically disregarded the inherent margin of error in the Intox EC/IR and therefore based that statute upon “test results” or (2) intended the triggering effects of the statute to be based upon on a specified “alcohol concentration”. (E. 6-7)

2. The ALJ’s Decision is Correct and Consistent with the Canons of Statutory Construction.

There are only five issues that a non-commercial licensed driver may raise to contest the suspension of his or her driving privilege during an MVA hearing. § 16-205.1(f)(7)(i)(1-5). The subsection relevant to Lytle is his right to contest whether he “drove or attempted to drive a motor vehicle while having an alcohol concentration of 0.10 or more at the time of testing” § 16-205.1(f)(7)(i)(5) (emphasis added). To accept MVA’s contention that the Maryland Legislature was relying solely on the “certified test results” of the Intox EC/IR would ameliorate Mr. Lytle’s right under § 16-205.1 to challenge the “alcohol concentration of 0.10 or more at the time of testing.” Id.

The legislative history of the bill also indicates that the legislature intended that one of the issues allowed to be addressed at the hearing is whether the driver had had alcohol concentration of 0.10 or more. The Senate Judicial Proceedings Committee Floor Report, at page 1 (Apx. 1), and Bill Analysis, at page 4, (Apx. 4, 6) for House Bill 556 (1989 Md. Laws ch. 284 § 1) both indicate that one of the issues allowed to be addressed at the hearing is whether the driver had an alcohol concentration of 0.10 or more.

The ALJ decision was based, in part, on the above rationale. The ALJ stated:

This language [16-205.1(f)(7)(i)(5)] clearly refers to alcohol content and not test results. Furthermore, the legislature, by setting out only those issues that may be addressed at the hearing and by not including test results, has specifically excluded test results as the standard. I find that the legislature has established that the standard is alcohol content and not the test results. That being the case, it would be patently unfair, as well as a violation of due process not to consider and apply the margin of error i.e. the accepted scientific range of accuracy, in this case.

(E.7) Additionally, the Maryland appellate courts have consistently held that “under longstanding rules of statutory construction, [the appellate courts] should avoid rendering a clause, sentence, or phrase ‘surplusage, superfluous, meaningless, or nugatory.’” Committee for Responsible Development of 25th Street v. Mayor and City Council of Baltimore, 137 Md. App. 60, 76 (2001) (quoting State v. Pagano, 341 Md. 129, 134 (1996); Montgomery County v. Buckman, 333 Md. 516, 524 (1994)). In addition, “all parts of the statute are to be reconciled and harmonized to the extent possible.” Galludet University v. National Society of the Daughters of the American Revolution, 117 Md. App. 171, 201 (1997).

“The cardinal rule of statutory construction is to ascertain and effectuate the actual intent of the legislature. [The] ultimate aim [in statutory construction] is to effect the legislative intent. To determine the legislature's intent, we must look first to the words of the statute, read in light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence.” Hyle v. MVA, 348 Md. 143, 149-50 (1997) (citations omitted).

To accept the proposition that the “test results” are the standard that the legislature chose to trigger a suspension under § 16-205.1 would render the language in § 16-205.1(f)(7)(i)(5) (allowing a driver to contest his/her alcohol concentration at the suspension hearing) “superfluous, meaningless, or nugatory”.

The canons of statutory construction compel the interpretation that the legislature intended that an individual’s license to drive be suspended upon a showing of a particular alcohol concentration, not upon a mere showing of a particular “test result”.

3. The ALJ’s Decision is Correct and Consistent with the Legislative History.

To the extent that any of the legislative history from House Bill 556[4] (1989 Md. Laws ch. 284 § 1) is useful or instructive when interpreting § 16-205.1 regarding the issue in the instant case, some of the most important pieces of legislative history reflect that the legislature intended for the per se provisions of 16-205.1 to be triggered by an alcohol concentration.

The Senate Judicial Proceeding s Committee Floor Report, (Apx. 1) and Bill Analysis, (Apx. 3) both indicate that the legislature intended for the per se provisions of 16-205.1 to be triggered by an alcohol concentration.

The Floor Report (House Bill 556, 1989 General Assembly, Senate Judicial Proceedings Committee, Walter M. Baker, Chairman) explains in the first paragraph:

This bill adopts an “administrative per se” law requiring the suspension of an individual’s driver’s license if the person is detained by police for driving or attempting to drive…and the person: (1) refuses to take the test…; or (2) the person takes the test and has a blood alcohol concentration of 0.10 or greater.

(Apx. 1)(emphasis added) The Bill Analysis (House Bill 556, 1989 General Assembly, Senate Judicial Proceedings Committee, Walter M. Baker, Chairman) likewise explains in the first paragraph:

This bill adopts an “administrative per se” law requiring the suspension of an individual’s driver’s license if the person is detained by police for driving or attempting to drive…and the person: (1) refuses to take the test…; or (2) the person takes the test and has a blood alcohol concentration of 0.10 or greater.

(Apx. 3)(emphasis added) These documents, unlike the bulk of the legislative history, are not mere advocacy documents. They are summaries of what is an admittedly long and complex bill. They were created for the express purpose of summarizing the statute for the Members of Maryland’s General Assembly to understand. They were created by a committee, i.e. the persons that were the most familiar with the bill. These documents make clear that the legislature intended that the per se suspension provisions of 16-205.1 to be triggered by an alcohol concentration.

MVA hangs its substantive legislative history hat on a lone statement in the preamble of House Bill 556. The preamble states that the bill establishes “certain sanctions for certain test results”. (1989 Md. Laws Ch. 284) MVA argues “The legislature thus clearly identified its purpose for the State to use test results, rather than proof of blood alcohol content levels, as the basis for driver license sanctions”. (Brief of Petitioner at 12).

MVA’s argument ignores vital aspects of the legislative history.

Senate Bill 108 and House Bill 3 of the 2001 Session of the Maryland General Assembly (2001 Md. Laws Ch. 4 & 5, respectively), which lowered the alcohol concentration to 0.08, state in their preambles “For the purpose of…reducing the level of alcohol concentration for a certain administrative offense that results in the suspension of a driver’s license under certain circumstances”. (Apx. 7-9) Utilizing MVA’s logic, the ‘legislature thus clearly identified its purpose for the State to use alcohol concentration, rather than test results, as the basis for driver license sanctions’. It strains the imagination to believe that in 1989 the legislature intended for “test results” to be the standard, and then in 2001, without discussion, it changed its mind and made “alcohol concentration” the standard.

C. The ALJ’s Decision is Consistent with Holdings in Foreign Jurisdictions.

There are no Maryland appellate decisions that address whether an ALJ should apply the Toxicologist Commission Report’s margin of error in favor of the individual being tested for blood alcohol concentration. However, other jurisdictions have dealt with this precise scenario. In Haynes v. Alaska, 865 P.2d 753 (Alaska 1993), the Supreme Court of Alaska opined that “the legislature has the power to require the revocation of a driver’s license on the basis of a particular test result or reading, despite its inherent margin of error, when the legislature expressly considers that margin and deems it sufficiently negligible such that it may be disregarded.” Id. at 755. The facts in Haynes are identical to Mr. Lytle’s case. Haynes’s blood alcohol concentration test resulted in a reading of .10. Alaska’s Department of Public Safety required a level of blood alcohol concentration of .10 or more to revoke Haynes’s Alaska driver’s license. Moreover, the accepted “margin of error” for intoximeter tests was .01. The administrative hearing board officer refused to consider the “margin of error” in favor of Haynes. The Alaska Supreme Court ruled that “the margin of error must be applied in Hayne’s favor.” Id. at 756.

Specifically, the Alaska Supreme Court held that “if the .01 margin of error is not applied in Haynes’ favor, the deprivation of an important property interest could result where the actual breath test result was below .10 grams. Absent express legislative intent to the contrary, we hold that the failure to apply the inherent margin of error of a particular testing device in favor of a person subject to license revocation violates due process of law.” Id. See also, Barcott v. State of Alaska, Dept. of Public Safety, 741 P.2d 226, 228 (Alaska 1987) (“due process requires consideration of the margin of error inherent in the breath testing procedure.”)

As in Alaska, the Maryland General Assembly does not expressly disallow the margin of error when considering the blood alcohol concentration sample results. Without express intent from the legislature to the contrary, the margin of error must be applied in favor of Mr. Lytle. Therefore, the ALJ was correct by taking “no action” on Mr. Lytle’s driving privilege.

In State v. Bjornson, 271 N.W. 2d 839 (Neb. 1978), the Supreme Court of Nebraska addressed a similar issue as in Haynes. The criminal defendant had a blood alcohol concentration test result of .10. There was an accepted inherent margin of error of .01. While opposing Bjornson’s contention that the margin of error should be applied to his benefit, the State of Nebraska argued that “any variances inherent in the [blood alcohol] testing process are irrelevant.” Bjornson, 271 N.W.2d at 839. The Supreme Court of Nebraska expressly rejected the notion that inherent variances are irrelevant. Id. In fact, the Nebraska Supreme Court opined that “it is not unreasonable to require that the test, designed to show that [blood alcohol concentration] percent, do so outside of any error or tolerance inherent in the testing process.” Id. at 840 (emphasis added). Because the court ruled the variance relevant, the court favorably applied the variance to Bjornson, reversed the lower court, and dismissed the case.

In addition to Alaska and Nebraska, other states ruled that the defendant shall be given the benefit of the margin or error absent any express statutory language to the contrary. State v. Keller, 113 672 P.2d 412, 414 (Wash. App. 1983) (“the foregoing suggests that the margin of error in the Breathalyzer should be considered by the trier of fact”); State v. Prestier, 455 N.E.2d 24, 27 (Ohio Misc.1982) (“Every margin of error . . . must be strictly construed against the state and liberally construed in favor of the defendant.”); State v. Boehmer, 613 P.2d 916, 919 (Hawaii 1980) (“it is not unreasonable to require that the test, designed to show that percent [of alcohol concentration in the blood], do so outside any error or tolerance inherent in the testing process.”)

D. Mr. Lytle has a Property Right in his Diving Privilege that Cannot Be Suspended Without the Protections of Due Process.

A Defendant has a property interest in his or her driver’s license. Department of Transportation v. Armacost, 299 Md. 392 (1984) (citing Illinois v. Batchelder, 463 U.S. 1112 (1983)). Because there is a property interest in a driver’s license, due process requirements apply to administrative proceedings affecting that property interest. In Matthews v. Eldridge, 424 U.S. 319 (1976), the United States Supreme Court delineated three factors when courts address administrative procedural due process issues. The second factor is “the risk of an erroneous deprivation of such interest through the procedure used.” Id. 424 U.S. at 335. When this factor is applied to Mr. Lytle’s case, it is clear that simply using the result of the Intox EC/IR breath test would create the risk of an erroneous deprivation of Mr. Lytle’s property interest. The test result displayed a reading of exactly .10. When the margin of error is factored in, Mr. Lytle’s actual blood alcohol concentration could have been as low as .09. If Mr. Lytle’s reading could have been anywhere between .09 and .99, then by law he was not “per se intoxicated.” If Mr. Lytle was not “per se intoxicated,” then the Motor Vehicle Administration cannot take any adverse action to deprive him of his driver’s license property right.

III. MR. LYTLE SUBMITTED, THE ALJ ACCEPTED, AND MVA DID NOT OBJECT TO, EVIDENCE TO REBUT THE ACCURACY OF THE TESTING EQUIPMENT.

This argument is not properly before this Court for the reasons explained in Argument I (A-B) supra. Mr. Lytle responds to MVA’s Argument III (Brief of Petitioner at 16) in the event that the Court is not persuaded by Mr. Lytle’s Argument I (A-B) supra. Curiously MVA states, that “Lytle never testified or submitted any evidence to controvert MVA’s case…” (Brief of Petitioner at 17). Aside from the testimonial evidence adduced at the hearing, (E. 44-74) Mr. Lytle submitted, the ALJ accepted, (and MVA did not object to), the Regulations of the Toxicologist (petitioner’s #6) and an addendum thereto (petitioner’s #5) into evidence at the original MVA hearing. (E. 20-44, 74).

MVA’s basis for its argument appears to be: (1) that the MVA regulations prohibited Mr. Lytle’s argument, (2) the Regulations of the Toxicologist are not competent evidence, and (3) the ALJ misapplied the Regulations of the Toxicologist. Mr. Lytle shall address each of these contentions in turn.

A. To The Extent That MVA’s Regulations Do Not Allow Mr. Lytle To Rebut The Accuracy Of The Testing Equipment, They Exceed Their Statutory Authority.

The intoxicated per se statute sets out the only issues that may be argued at the suspension hearing. Section 16-205.1(f)(7)(i)(5) specifically mandates that one of those issues shall be “[w]hether the person drove or attempted to drive a motor vehicle while having an alcohol concentration of 0.10 or more at the time of testing”. Mr. Lytle argued that he, as a matter of law, did not have an alcohol concentration of 0.10 or more at the time of testing. Mr. Lytle introduced testimonial as well as documentary evidence to support his position and to rebut MVA’s prima facie evidence of a 0.10 alcohol concentration. (E. 20-44, 44-74). To the extent that the MVA’s regulations did not allow Mr. Lytle to introduce, or the ALJ to accept, evidence that his alcohol concentration was less than 0.10, the MVA’s regulations exceed their authority under § 16-205.1(f)(7)(i)(5).

B. The Regulations of the Toxicologist are Competent Evidence that Mr. Lytle Had Less Than a 0.10 Alcohol Concentration.

MVA’s reliance on Borbon v. MVA, 345 Md. 267 (1996) for the proposition that “there is no statute that authorizes the toxicologist to establish evidentiary presumptions or to allocate the burdens of production and persuasion at an MVA suspension hearing involving an alleged violation of the implied consent law” is misplaced. Borbon clearly does not stand for the proposition that “the Regulations of the Toxicologist cannot be applied to subvert the MVA’s statutory prima facie case”. (Brief of Petitioner at 17). In Borbon, supra, the driver did not blow enough breath into the machine to register a reading. The Regulations of the Toxicologist instructed the police officer to record this fact as a test refusal. Id. at 269-271. In reversing the ALJ and the Circuit Court, this Court gave the following limited holding:

We have not been cited to, nor have we found, any statute that authorizes the toxicologist to establish evidentiary presumptions or to allocate the burdens of production and persuasion at an MVA suspension hearing involving an alleged violation of the implied consent law. Regulation of those evidentiary matters is not implied from the authority to approve equipment and training programs. Thus, to the extent that § III.C.4 of the Regulations undertakes to establish a presumption of an intentional refusal to submit to a test based on a printout of insufficient breath, the Regulations exceed the authority statutorily conferred on the toxicologist.

Borbon is simply unrelated to the instant case. Mr. Lytle did not rely on the Regulations of the Toxicologist to attempt to regulate the burdens of production or persuasion.

C. The MVA Misinterprets The Toxicologists Regulations Regarding The Accuracy Of The Testing Equipment.

MVA argues that “[t]he toxicologist has taken into account the general scientific accuracy of the test in his reporting protocol by: (1) taking the lowest of two or three readings as the “test result;” and (2) reporting the lowest test result after it is rounded down to the second decimal place.” (Brief of Petitioner at 18). MVA does not understand the panoply of equipment inaccuracies that the Regulations of the Toxicologist must wrangle with.

First, nowhere do the Regulations of the Toxicologist state that it has taken into account the general scientific accuracy of the testing equipment.(E. 20-43). The opposite is the case. The Regulations provide for a 10% error in the reported result in the first section of the Regulations as follows:

No scientific measurement is unequivocally precise. All such measurements have an accepted scientific range of accuracy. For the measurement of breath and blood tests for alcohol content, the accepted scientific range of accuracy is plus or minus 0.01 of the reported result.

(E.28) (emphasis added)

Second, the truncation of the third decimal place (e.g. .109 or .101 are both reported as .10) is not designed to ameliorate the overall margin of error for the equipment, rather, that “rounding down” is designed to correct an entirely different accuracy problem with the equipment. The rounding down of the third decimal place is done to correct the error of each individual machine, not all of the machines generally. (E. 21). The fact that all of the machines are inaccurate, within a range of 0.01, means that the specific machine, that Mr. Lytle was tested with, also has the same inaccuracy. To calibrate each machine, an Alcohol Reference Solution is used. The Alcohol Reference Solution is a known sample of 0.100 and the machine tests that sample to discover the inaccuracy of the individual machine. (Amendment I(C), E. 21) Because of the truncation, the regulations allow for the machine to read the reference solution anywhere from 0.090 to 0.110. (E. 21). After the third decimal place is truncated, according to the Regulations, there is still a margin of error of 0.01 in the reported result that remains uncorrected. (E. 28)

Third, it is entirely immaterial whether Mr. Lytle’s lowest or highest reading is reported as the result. Mr. Lytle’s results were 0.105 and 0.101. Both are equally likely to be inaccurate. When the margin of error is subtracted from either of these results, Mr. Lytle did not have an alcohol concentration in excess of 0.10.

CONCLUSION

For the reasons presented in Argument I (A), supra, the Court should dismiss the instant case as certiorari was improvidently granted. For the reasons presented in Argument I (B), supra, the Court should not entertain any argument that MVA makes for the first time on judicial review and that was not encompassed in the decision of the ALJ.

If the Court is not persuaded by Argument I (A-B), supra, then the Court should affirm the decision of the ALJ for the following reasons.

Mr. Lytle’s Intox EC/IR test results were .10. The Intox EC/IR reading failed to take into consideration of the .01 inherent margin of error of Intox EC/IR readings. The inherent variance should be applied to Mr. Lytle because he has a property interest in his driver’s license. Because of that property interest, Mr. Lytle is entitled to due process as a matter of law. Procedural due process requires that Mr. Lytle’s test results take into consideration the inherent .01 (or 10%) margin of error.

While Maryland has not directly decided this issue, other jurisdictions ruled that the inherent variance shall be considered to the defendant’s benefit. It is significant that the Maryland legislature did not provide language that considers the inherent margin of error variance of this scientific test. Not only does the plain language of § 16-205.1 allow for the consideration of the inherent margin of error, the canons of statutory construction and the legislative history require its consideration.

Finally, the Toxicologist Commission Report explicitly states that “the accepted scientific range of accuracy is plus or minus 0.01 of the reported result.” Therefore, the state toxicologist is allowing a .01 inherent margin of error of the Intox EC/IR test results and not the testing process itself.

Respondent Michael Patrick Lytle’s Intox EC/IR breath test results should be considered along with the inherent margin of error present in the Intox EC/IR test results. Therefore, Mr. Lytle’s blood alcohol concentration could have been as low as .09. Because Mr. Lytle’s blood alcohol concentration cannot be proven to be at .10 or above by a preponderance of the evidence, the ALJ was correct to take “no action” against Mr. Lytle’s driving privilege.

FONT: Times New Roman - 13 point

Respectfully submitted,

________________________

Michael Patrick Lytle

1546 Park Lane

Pasadena, Maryland 21122

410.439.4942

December 10, 2002

Pro Se

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[1] By its own language, MVA supports (contrary to its arguments on the merits) Mr. Lytle’s contention that, “alcohol concentration” rather than “test results” is what triggers a suspension under the administrative per se provisions of §16-205.1.

[2] Like many rules, statutes and appellate court opinions, this portion of Young curiously seems to presume that the agency always prevails at the initial hearing. This can create confusion when, as in the instant case, the original agency action is adverse to the agency and the agency seeks judicial review of its own decision. The confusion is generated by the question of whether (1) the position of the agency on judicial review is given deference, or (2) the position of the agency when it made the initial agency decision is given deference. In any event, what is clear is that the agency’s decision is presumed correct, should be given “considerable weight by reviewing courts”, despite the fact that the MVA opted to delegate its decision-making authority to the OAH under the APA.

[3] 16-205.1(a)(1)(iii)(1); (a)(1)(iii)(3)(A); (b)(1); (b)(1)(i); (b)(1)(ii)(1); (b)(1)(ii)(1); (b)(2)(iii); (b)(3); (b)(3)(v)(1); (b)(3)(v)(2); (b)(3)(vii)(1); (b)(3)(vii)(2); (e)(1); (e)(2); (f)(1)((ii)(1); (f)(4)(i)(1); (f)((7)(i)(5); (f)(7)(ii); (f)(8)(i)(4)(B); (f)(8)(v)(1); (g)(2)(iii)(2); (g)(3)(i)(1); and (h).

[4] The bill folder for House Bill 556 of the 1989 Maryland General Assembly consists of approximately 437 pages. The issue in the instant case is simply never discussed, nor is their any indication that the legislature specifically knew of and disregarded the 0.01 margin of error.

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