Did Maryland police have to tell a drunk driving suspect every possible consequence of refusing a breath test, or just the basic penalty?

Plain-English summary

A State's Attorney asked the Attorney General whether the Maryland State Police's standard advisory form, Form DR-15, adequately warned drivers detained on suspicion of drunk driving about the consequences of refusing a chemical alcohol test, a question then pending before a District Court judge in a specific case. Form DR-15 told a driver only that refusal would result in license suspension for 60 days to 6 months, without mentioning the right to a hearing, the possibility the Motor Vehicle Administration might modify the suspension or grant a restricted license, or the fact that a refusal could not be used as evidence in a criminal prosecution. The opinion concluded that Form DR-15 satisfied Tr §16-205.1, reasoning that the statute's separate references to advising a driver of the suspension consequence and to advising of "administrative penalties" both referred to the same basic penalty, not to the full range of ancillary procedural rights or possible outcomes, a reading confirmed by the provision's legislative history and by decisions from other states holding that similar implied-consent warning statutes require only the bottom-line penalty, not a comprehensive recitation of every possible variation.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion interpreted Tr §16-205.1 as it existed in 1983, following a 1981 statutory revision, and analyzed a specific version of Form DR-15 then in use. Maryland's implied consent law and its official advice-of-rights form have been revised multiple times since 1983, often adding new required disclosures. Verify the current version of Tr §16-205.1 and the current DR-15 (or successor) form before relying on any specific description of what a driver must be told.

Common questions

Did Maryland police have to warn a suspected drunk driver about their right to a hearing before the driver decided whether to take a breath test?
No, according to this opinion. It concluded that the statutory duty to "advise the individual of the administrative penalties" for refusal referred only to the basic license suspension penalty itself, not to procedural rights like the right to a hearing, so Form DR-15's omission of that information did not make the warning legally insufficient.

Did the standard refusal warning have to mention that the Motor Vehicle Administration could sometimes issue a restricted license instead of a full suspension?
No. The opinion found that the phrase "administrative penalties" in the statute referred to the same suspension consequence described elsewhere in the same section, and that requiring disclosure of every possible modification or restricted-license outcome would read requirements into the statute that its text and history did not support.

Did failing to mention that a refusal could not be used as evidence at trial make the warning constitutionally defective?
No, according to the opinion. Citing the U.S. Supreme Court's decision in South Dakota v. Neville, which held that a due process challenge based on a similar omission failed because a warning about losing driving privileges made clear that refusal was not a "safe harbor," the opinion concluded the omissions in Form DR-15 raised no constitutional problem, only a question of statutory interpretation, which it resolved in the form's favor.

Background and statutory framework

The opinion worked through Tr §16-205.1's implied consent scheme: subsection (a) deemed a detained driver to have consented to a chemical alcohol test, subsection (b)(1) nonetheless allowed a driver to refuse but required the officer to advise that refusal would trigger a mandatory 60-day-to-6-month suspension, and subsection (b)(2) listed the officer's duties in checklist form, including, in (b)(2)(iii), a duty to "advise the individual of the administrative penalties that shall be imposed for refusal." The opinion found these two disclosure requirements, the specific suspension-consequence advice in (b)(1) and the "administrative penalties" reference in (b)(2)(iii), described the same underlying obligation rather than imposing two different, expanding levels of required disclosure, since only a forced reading of "penalties" could stretch it to cover procedural rights, mitigating circumstances, or evidentiary rules.

The opinion reinforced this textual reading with the provision's legislative history, tracing "administrative penalties" back to a 1969 enactment where the phrase could only have referred to the flat suspension penalty then in place, and noting that when the General Assembly overhauled the scheme in 1981 to allow modified suspensions, it added a new, specific advice requirement about the suspension itself but left the pre-existing "administrative penalties" phrase untouched, suggesting no expanded meaning was intended for that phrase. The opinion further surveyed out-of-state authority, finding Pennsylvania, Georgia, and New York courts had all held that similar implied-consent statutes required disclosure of only the "gist" or basic penalty, with only a single, distinguishable Michigan decision going the other way, and found the New Hampshire Supreme Court's reasoning in State v. Ramsden, that a legislature could have required disclosure of "all possible consequences" but chose instead to require only the "outer penalty," most closely analogous to Maryland's own statutory structure.

Citations

Statutes:

• Tr §16-205.1(a) (implied consent to chemical alcohol testing)
• Tr §16-205.1(b)(1) (driver's right to refuse; suspension consequence advice)
• Tr §16-205.1(b)(2) (detaining officer's checklist of duties)
• Tr §16-205.1(b)(2)(iii) (duty to advise of "administrative penalties")
• Tr §16-205.1(b)(2)(iv) (officer's sworn report requirement)
• Tr §16-205.1(f)(1) (driver's right to a hearing within 30 days)
• Tr §16-205.1(f)(3) (driver's right to present evidence and counsel at hearing)
• Tr §16-205.1(f)(4) (mandatory suspension after hearing)
• Tr §16-205.1(f)(5) (grounds for modifying suspension or issuing restrictive license)
• Tr §16-205.1(g) (appeal of suspension)
• Tr §12-209 (appeal to Circuit Court)
• Tr §21-902(a) and (b) (driving while intoxicated / under the influence offenses)
• CJ §10-307(d) (0.08% blood alcohol prima facie evidence of under the influence)
• CJ §10-307(e) (0.13% blood alcohol prima facie evidence of intoxication)
• CJ §10-309(a) (inadmissibility of refusal as evidence at trial)
• Chapter 158, Laws of Maryland 1969 (original implied consent enactment)
• Chapter 244, Laws of Maryland 1981 (revision allowing modified suspensions)
• Former Article 66½, §92A(d) (1969 predecessor suspension provision)
• Former Article 66½, §92A(c)(3) (1969 predecessor advice requirement)

Cases:

• South Dakota v. Neville, 459 U.S. 553 (1983)
• State v. Loscomb, 291 Md. 424 (1981)
• Commonwealth Dep't of Transp. v. Sinwell, 450 A.2d 235 (Pa. Commw. Ct. 1982)
• Howard v. Gofer, 258 S.E.2d 195 (Ga. Ct. App. 1979)
• Cruickshank v. Melton, 440 N.Y.S.2d 759 (N.Y. App. Div. 1981)
• People v. Castle, 310 N.W.2d 379 (Mich. Ct. App. 1981)
• State v. Ramsden, 378 A.2d 1370 (N.H. 1977)
• Thomson v. Department of Motor Vehicles, 165 Cal. Rptr. 626 (Cal. Ct. App. 1980)
• Decker v. Department of Motor Vehicles, 101 Cal. Rptr. 387 (Cal. Ct. App. 1972)
• Ormonde v. Department of Motor Vehicles, 173 Cal. Rptr. 79 (Cal. Ct. App. 1981)
• Smith v. Department of Motor Vehicles, 81 Cal. Rptr. 800 (Cal. Ct. App. 1969)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Vehicle Laws—Alcohol-Related Offenses—Alcohol Tests—Advice on Consequences of Refusing to Take Test—Standard Form of Advice (Form DR-15) Complies With Statutory Requirements.

April 14, 1983

The Honorable William R. Hymes
State's Attorney for Howard County

You have requested our opinion on the legal sufficiency, under the Maryland Vehicle Law, of the standard form of advice used by police officers to inform drivers about the consequences of refusing to submit to a chemical test for alcohol.1

For the reasons given below, it is our opinion that the standard police advice in question, Form DR-15, "Advice of Rights and Administrative Penalties for Refusal to Submit to a Chemical Test", complies with the applicable statutory requirements.

1 Your letter states that this question is currently pending in a case before Judge Diane Schulte in the District Court. State v. Becker, Traffic Citations Nos. 8520484, 8520485. Although we would not ordinarily address a matter currently in litigation, you have advised us that Judge Schulte believes an Opinion of the Attorney General would, in this instance, be appropriate.

I
The Statute

Under §16-205.1(a) of the Transportation Article, a driver "is deemed to have consented ... to take a chemical test to determine the alcohol content of his blood, if he should be detained on suspicion of driving or attempting to drive while intoxicated or while under the influence of alcohol".2

2 The Maryland Vehicle Law prohibits both (i) driving while intoxicated and (ii) driving while under the influence of alcohol. §21-902(a) and (b) of the Transportation Article. Analysis showing the alcoholic content of the blood to be 0.13% or more is prima facie evidence of intoxication [§10-307(e) of the Courts Article]; an alcoholic content of 0.08% or more is prima facie evidence of being under the influence of alcohol [§10-307(d) of the Courts Article].

Despite this implied consent, §16-205.1(b)(1) nevertheless permits a driver to refuse to take the test. This provision is as follows: "Except as provided in subsection (c) of this section [, pertaining to accidents that result in the death of another person], a person may not be compelled to take a chemical test for alcohol. However, the detaining officer shall advise him that on receipt of a sworn statement from the officer that the driver was so charged and refused to take a chemical test for alcohol, the [Motor Vehicle] Administration shall . . . suspend his driver's license for a period of not less than 60 days nor more than 6 months".

Section 16-205.1(b)(2), in turn, contains the following checklist of all of the detaining officer's duties, including the officer's duty under §16-205.1(b)(1) to warn a driver that the refusal to take the test will result in suspension of the driver's license: "[T]he police officer shall: (i) Detain the individual; (ii) Request that the individual permit a chemical test to be taken of the individual's blood or breath to determine the alcoholic content of the individual's blood; [and] (iii) Advise the individual of the administrative penalties that shall be imposed for refusal to take the test[.]"3

3 If the driver refuses to take the test, the officer must also file a sworn report with the Motor Vehicle Administration. This report recites the reasonable grounds for the officer's belief that the driver was intoxicated or under the influence of alcohol and the fact of the driver's refusal to take the test "after being informed of the administrative penalties that shall be imposed for refusal". §16-205.1(b)(2)(iv).

A driver who refuses to take the test may appear at a hearing within 30 days to "show cause why the driver's license or privilege to drive should not be suspended". §16-205.1(f)(1). "At the hearing, the driver may present evidence about the driver's refusal to take the test and may be represented by an attorney." §16-205.1(f)(3). The statute continues: "(4) After the hearing, the [Motor Vehicle] Administration shall suspend the driver's license or privilege to drive for not less than 60 days nor more than 6 months if the Administration determines that the driver was charged . . . and refused to take a chemical test for alcohol . . . (5) The Administration may modify this suspension or issue a restrictive license if: (i) The licensee is required to drive a motor vehicle in the course of employment; (ii) The license is required for the purpose of attending an alcoholic prevention or treatment program; or (iii) It finds that the licensee has no alternative means of transportation available and without the license, the licensee's ability to earn a living would be severely impaired." §16-205.1(f)(4) and (5). A suspension is reviewable on appeal to the Circuit Court. §§16-205.1(g) and 12-209.

II
Advice Form DR-15

We understand that the Maryland State Police and other law enforcement agencies use a standard form, Form DR-15, "Advice of Rights and Administrative Penalties for Refusal to Submit to a Chemical Test", to inform a detained driver of the consequences of his or her refusal to submit to a chemical test. In pertinent part, Form DR-15 reads as follows: "[Y]ou have the right to refuse to submit to any such tests, and on your refusal, no test shall be administered .... [Y]our refusal to submit to a chemical test shall result in the suspension of your driver's license and/or driving privilege for not less than 60 days nor more than 6 months."

Form DR-15 does not contain advice about the driver's right to a hearing and to appeal an adverse decision, nor does it advise of the circumstances under which the Motor Vehicle Administration may modify a suspension or issue a restrictive license instead of ordering a complete suspension. The form also does not inform the driver that the fact of refusal is not admissible in a prosecution for driving while intoxicated or while under the influence of alcohol. See §10-309(a) of the Courts Article.4

4 The pertinent portion of §10-309(a) is as follows: "No inference or presumption concerning either guilt or innocence arises because of refusal to submit. The fact of refusal to submit is not admissible in evidence at the trial." This limitation on the evidentiary use of a refusal is a matter of statutory, but not constitutional, right. See note 5 below.

III
Compliance with the Statute

A. Statutory Text

The sole issue presented is whether §16-205.1 requires a more detailed disclosure of the consequences of a refusal than appears on Form DR-15.5 Plainly, Form DR-15 does comport with the requirement set out in §16-205.1(b)(1): "[T]he detaining officer shall advise [the driver] that on receipt of a sworn statement from the officer that the driver . . . refused to take a chemical test for alcohol, the Administration shall . . . suspend his driver's license for a period of not less than 60 days nor more than 6 months." (Emphasis added). The DR-15 advice is nearly identical: "[Y]our refusal to submit to a chemical test shall result in the suspension of your driver's license and/or driving privilege for not less than 60 days nor more than 6 months." (Emphasis added.)

5 In South Dakota v. Neville, 459 U.S. 553 (1983), the United States Supreme Court held that a driver's refusal to take a chemical test could constitutionally be admitted as evidence of guilt in a criminal prosecution. The Court also rejected the argument that due process required the driver to be warned of this possibility before he or she refused the test: "The officers explained that, if respondent chose to submit to the test, he had the right to know the results and could choose to take an additional test by a person chosen by him. The officers did not specifically warn respondent that the test results could be used against him in trial. Explaining the consequences of the other option, the officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true that officers did not inform respondent of the further consequence that evidence of refusal could be used against him in court, but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver's license made it clear that refusing the test was not a 'safe harbor', free of adverse consequences." 459 U.S. at [103 S.Ct. at 924]. If a police officer's failure to warn of the potential evidentiary use of a refusal in a criminal prosecution does not violate due process norms, we do not see how the omissions in question here could conceivably be of constitutional significance. Thus, the issue here is solely one of statutory construction. If the disclosure requirements of §16-205.1 were not complied with prior to a driver's agreeing to submit to a test, then the test results are inadmissible in a prosecution for driving while intoxicated or under the influence of alcohol. §10-309(a) of the Courts Article. See State v. Loscomb, 291 Md. 424 (1981).

Thus, the DR-15 advice is legally insufficient only if the scope of the required advice is enlarged by the provisions of §16-205.1(b)(2)(iii): "[T]he police officer shall . . . [a]dvise the individual of the administrative penalties that shall be imposed for refusal to take the test".

In our view, the most natural reading of the statute, and the reading intended by the General Assembly, is that both of the statutory provisions in question impose the same requirement on the police officer. That is, §16-205.1(b)(1) states the substance of the advice that the officer must impart: on a driver's refusal to take the test, "the Administration shall . . . suspend [the] driver's license". The following provision, §16-205.1(b)(2)(iii), simply uses a shortened phrase, "administrative penalties", to refer to that mandatory suspension. Indeed, only by a forced and unnatural reading should the word "penalties" be understood to refer to procedural rights, mitigating circumstances, or evidentiary exclusions.6

6 "A penalty is . . . [a] punishment imposed by statute as a consequence of the commission of an offense." Black's Law Dictionary 1020 (rev. 5th ed. 1979). In this regard, it is noteworthy that, in §10-309 of the Courts Article, the evidentiary exclusion is treated in subsection (a), while subsection (b) refers to "the provisions of the vehicle laws regarding the consequences of refusal", not "the other consequences of refusal". If the evidentiary exclusion is not one of the "consequences of refusal", it surely is not part of the "administrative penalties" either.

B. Legislative History

This reading is confirmed by the legislative history of the statute. The provisions of the Maryland Vehicle Law in question were originally enacted in 1969. Chapter 158, Laws of Maryland 1969. As then provided, the consequence of a driver's refusal to submit to a chemical test was as follows: "After a complete and thorough hearing, the Department [of Motor Vehicles] shall have the right to suspend the operator's license for a period not to exceed 60 days." Former Article 66½, §92A(d). The police officer's duty was to "[a]dvise the [detained driver] of the administrative penalties that may be imposed for such refusal". Former Article 66½, §92A(c)(3). The phrase "administrative penalties", although written in the plural, could only have referred to one thing, suspension, because the statute specified no other outcome.

In 1981, the General Assembly revised the law to its current scheme, mandating suspension but "allowing modification of the suspension under certain circumstances". Chapter 244, Laws of Maryland 1981. This enactment also added the specific requirement, as now found in §16-205.1(b)(1), that the detained driver be expressly advised that his or her license "shall [be] suspend[ed]" as a consequence of refusing to take the test. Yet this requirement, which specifies the officer's duty to provide advice, contains no reference to possible modification of the suspension.7

7 Indeed, even if the Administration "modif[ies a] suspension or issue[s] a restrictive license", the suspension mandated by §16-205.1(f)(4) remains at least partially effective in any event, because the Administration may not restore the privilege to drive for recreation or any other purpose not specified in §16-205.1(f)(5). Thus, the advice required by §16-205.1(b)(1) is entirely accurate.

At the same time, Chapter 244 retained, without change, the preexisting reference to "administrative penalties", as now found in §16-205.1(b)(2)(iii). We see no basis for concluding that the phrase "administrative penalties" was intended to refer to anything other than what it had always referred to, the suspension itself, not ancillary procedures or the newly added possibility of a modified suspension. Just as a requirement to advise about potential modification cannot be read into the newly enacted provision specifying the express advice to be provided, it cannot be read into a preexisting phrase that merely refers to that express advice as part of a cumulative checklist of the detaining officer's duties.

C. Case Law

Although no Maryland decision has addressed the level of detail called for by the disclosure requirement in §16-205.1, case law in other jurisdictions suggests that, when a statute requires advice about the adverse consequences of a refusal, only the basic penalty need be disclosed, not details about the full range of possible outcomes.

For example, a Pennsylvania statute requires a warning that driving privileges "will be suspended or revoked upon refusal to submit to a chemical test". This provision does not require advice about the exact length of time of the suspension. Commonwealth Dep't of Transp. v. Sinwell, 450 A.2d 235 (Pa. Commw. Ct. 1982). See also Howard v. Gofer, 258 S.E.2d 195 (Ga. Ct. App. 1979) (gist of statute sufficient); Cruickshank v. Melton, 440 N.Y.S.2d 759 (N.Y.App.Div. 1981) ("substantial compliance" with statutory warning requirement sufficient).

But see People v. Castle, 310 N.W.2d 379 (Mich.Ct.App. 1981) (warning insufficient unless it includes recitation of material police regulations, e.g., that refusing driver cannot later decide to take test if more than one hour elapses).8

8 In California, refusal to take an alcohol test leads to license suspension, apparently with no possibility of subsequent modification. The California courts have split over whether a police officer's advice is defective if it indicates a possible outcome other than suspension. Compare Thomson v. Department of Motor Vehicles, 165 Cal. Rptr. 626 (Cal.Ct.App. 1980), and Decker v. Department of Motor Vehicles, 101 Cal. Rptr. 387 (Cal.Ct.App. 1972), with Ormonde v. Department of Motor Vehicles, 173 Cal. Rptr. 79 (Cal.Ct.App. 1981), and Smith v. Department of Motor Vehicles, 81 Cal. Rptr. 800 (Cal.Ct.App. 1969). But even those cases that found such advice to be legally defective are distinguishable, because the California cases dealt with alleged failures to warn accurately of the basic adverse consequences of refusal. No such problem is alleged with respect to Form DR-15.

Perhaps the most instructive case is State v. Ramsden, 378 A.2d 1370 (N.H.1977). One section of New Hampshire's vehicle code, like Maryland's, warns that "refusal to permit the test will result in revocation of [the driver's] license" for 90 days. Another section directs police officers to inform a detained driver "of the consequences of his refusal to permit a test". The defendant argued that a warning was defective under the latter section because the officer failed to advise the driver that the state motor vehicle director had the authority to lift the suspension before 90 days elapsed.

The New Hampshire Supreme Court rejected this argument. It held that the driver had been properly advised of the "consequences of his refusal" when he was told that his license would automatically be revoked for 90 days on refusal: "If the legislature had wanted an arrested person to be advised of all possible consequences, it could have so legislated. This it did not do but instead required only the advice of the outer penalty of refusal, i.e., revocation." 378 A.2d at 1370. We draw the same conclusion about the Maryland statute.

IV
Conclusion

In summary, it is our opinion that Form DR-15, the standard form of advice used by police officers to inform drivers about the consequences of refusing to submit to a chemical test for alcohol, complies with §16-205.1 of the Maryland Vehicle Law.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
Avery Aisenstark
Chief Counsel
Opinions and Advice