When Maryland expunges a driver's record, can the MVA still keep a hidden copy on file, and can a hearing officer look at someone's alcohol-related probation before judgment?

Plain-English summary

Maryland's Motor Vehicle Administrator asked the Attorney General two questions about driving records. First, when a driver's record must be expunged under §16-117.1 of the Transportation Article, can the MVA keep a copy in a confidential file still open to inspection by itself, the courts, or other government agencies, or must expungement mean total removal from everyone's view? Second, when a driver has received a "probation before judgment," a disposition where a court withholds a formal conviction if the person completes probation, on a charge of driving while intoxicated or under the influence, can the MVA's separately kept record of that probation be used at an administrative hearing about suspending or revoking that person's license?

The Attorney General concluded that an expunged record must be truly removed from inspection by anyone, including the MVA itself, reasoning that "expunge" ordinarily means obliteration or erasure, that the legislature knew how to authorize government-only access when it wanted to (as it did for old, non-expunged records under a different statute), and that the MVA's own long-standing practice of fully erasing expunged records reflected the correct reading of the law. On the second question, the opinion concluded that although a probation before judgment cannot legally be treated as a "conviction" for point-system or straightforward alcohol-conviction suspensions, the MVA may still consider a pattern of such probations, together with the rest of a licensee's driving history, in deciding whether someone is an "unfit, unsafe, or habitually reckless" driver under a separate statute, so long as the licensee gets proper notice and an opportunity to respond, and so long as the confidentiality of that specific information is preserved from the general public.

Currency note

This opinion was issued in 1987. 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.

Common questions

If a Maryland driver in 1987 got their old driving record expunged, could a police officer, court, or the MVA itself still pull it up later?
No, according to this opinion. The Attorney General concluded that "expungement" under §16-117.1 means complete removal from inspection by anyone, not just the general public, distinguishing it from a separate statute that let the MVA keep old records confidential but still available to government agencies. Without express statutory language authorizing that kind of retained access, the opinion found expunged records could not be kept available to any person or agency, including the MVA.

Could a licensee's DUI-related probation before judgment be treated the same as an actual conviction for purposes of losing points or a license?
No. The opinion concluded that Article 27, §641(c)'s language, that a completed probation before judgment "is not a conviction for purposes of any disqualification or disability imposed by law," barred the MVA from treating such a probation as a conviction under either the point system or the alcohol-conviction suspension statute, both of which are triggered specifically by a conviction.

So could the MVA use a DUI probation before judgment record for anything at all in deciding whether to pull someone's license?
Yes, but only in a specific, narrower way. The opinion concluded the MVA could consider a licensee's history of such probations, alongside the rest of their driving record, under the separate "unfit, unsafe, or habitually reckless" driver standard, generally as part of a pattern rather than from a single incident, provided the licensee received notice of that basis for the proposed action and a chance to respond at a hearing.

Background and statutory framework

Under §16-117.1 of the Transportation Article, a licensee who meets certain conviction-free and suspension-free thresholds is entitled to have the MVA "expunge" his or her "public driving record." A separate provision, §12-111, generally makes MVA records public but lets the MVA classify records more than five years old as confidential, while still keeping those confidential records "open to inspection" by other government agencies. The opinion reasoned that this contrast in statutory language was telling: because the General Assembly expressly preserved government access to merely confidential (non-expunged) old records under §12-111, but used the different, stronger word "expunge" without any comparable access-preserving language in §16-117.1, and because "expunge" ordinarily means to obliterate or erase, the office concluded the General Assembly intended expunged records to be unavailable to anyone, a reading reinforced by the fact that a 1986 bill that would have kept certain expunged information available to the MVA, courts, and criminal justice agencies had failed to pass, and by the MVA's own consistent past practice of fully erasing expunged records.

On probation before judgment, §16-117(b)(2) requires the MVA to keep confidential records or notations of any probation before judgment for an alcohol or drug driving violation, available only to the MVA, the courts, criminal justice agencies, and the licensee or the licensee's attorney, while §16-117(b)(3) says those records must be readily available for the MVA's consideration of license renewal applications "and at any other suitable time." The opinion reasoned that an administrative hearing on suspending, revoking, or refusing to renew a license is exactly the kind of "suitable time" the statute contemplated, since both a renewal decision and a suspension or revocation hearing share the same underlying purpose of deciding whether someone should keep driving. However, because Article 27, §641(c) provides that a completed probation before judgment "is not a conviction for purposes of any disqualification or disability imposed by law," the opinion concluded such a probation cannot support suspension or revocation under statutes that are triggered specifically by a "conviction," such as the alcohol-conviction statute or the point system. Instead, the opinion found the proper vehicle was the separate "unfit, unsafe, or habitually reckless or negligent driver" standard, which does not require a conviction and which the opinion read as aimed at protecting the public from dangerous drivers based on their overall record, generally requiring a pattern of such incidents rather than a single occurrence, while still requiring the MVA to give the licensee adequate notice of that basis for action and an opportunity for a hearing.

Citations

Statutes:

• §16-117.1 of the Transportation Article (expungement of a licensee's public driving record)
• §12-111 of the Transportation Article (public and confidential MVA records)
• §16-117(b)(2) of the Transportation Article (confidential MVA record of probation before judgment)
• §16-117(b)(3) of the Transportation Article (availability of probation before judgment records for renewal applications and other suitable times)
• §16-205 of the Transportation Article (suspension or revocation for alcohol or drug related convictions)
• §16-206 of the Transportation Article (suspension for an unfit, unsafe, or habitually reckless driver)
• §16-402 of the Transportation Article (point assessment for driving violations)
• §16-404 of the Transportation Article (point-based suspension and revocation)
• §12-202 and 12-203 of the Transportation Article (MVA administrative hearings)
• §12-204(2) and (3) of the Transportation Article (required notice content for a hearing)
• Article 27, §735(c) of the Maryland Code (definition of expungement for criminal records)
• Article 27, §739 of the Maryland Code (restrictions on review or disclosure of expunged criminal records)
• Article 27, §641 of the Maryland Code (probation before judgment)
• §10-617 of the State Government Article (nondisclosable information within otherwise public records under the Public Information Act)

Cases:

• Demory Brothers, Inc. v. Board of Public Works, 273 Md. 320, 326 (1974)
• Automobile Trade Ass'n v. Insurance Comm'r, 292 Md. 15, 24 (1981)
• National Asphalt Pavement Ass'n v. Prince George's County, 292 Md. 75, 80 (1981)
• Dixon v. United States, 381 U.S. 68, 72 (1965)

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/1987/Volume72_1987.pdf

Original opinion text

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

Vehicle Laws—Driving Records—Expungement—Probation Before Judgment—Alcohol-Related Offenses.

September 1, 1987

Mr. W. Marshall Rickert
Motor Vehicle Administrator

You have requested our opinion on two questions involving driving records. Specifically, you ask:

1. When a driving record is required to be expunged under §16-117.1 of the Transportation Article ("TR" Article), may the record be retained after expungement in a confidential file that is open to inspection only by the Motor Vehicle Administration ("MVA"), courts, and other government agencies and officials?

2. When a separate, segregated MVA record contains information about a licensee's probation before judgment on a charge under TR §21-902, which prohibits driving while intoxicated or under the influence of alcohol or drugs, may that information be used at an administrative hearing concerning the licensee?

For the reasons given below, we conclude that:

1. An expunged driving record may not be retained in a manner that makes it readily available for inspection by governmental entities.

2. The MVA's records or notations of any probation before judgment on a charge of violating TR §21-902 are to be available to the hearing officer and to the licensee or the licensee's attorney in an administrative hearing.

I
Expungement of Driving Records

A. Introduction

TR §16-117.1 provides that, "if a licensee applies for the expungement of the licensee's public driving record, the [MVA] shall expunge the record" if it meets certain criteria.1 That section does not specifically designate the manner in which expungement must be accomplished. The MVA's practice has been to fully expunge a driving record that meets the statute's criteria, rendering it entirely unavailable for inspection. However, the statutory reference to "the licensee's public driving record" leads you to ask whether TR §16-117.1 instead contemplates that the licensee's driving record will be simply removed from public accessibility, but retained in files open to inspection by the MVA itself, courts, and other government agencies and officials.

B. Meaning of "public driving record"

Under TR §12-111, the MVA maintains two categories of records. In general, the MVA's records "are public records and open to public inspection. . . ." TR §12-111(b)(1). However, the MVA may classify records as "confidential and not open to public inspection" if they are more than five years old or if they pertain to events that occurred more than five years earlier. TR §12-111(b)(2). This classification may be accomplished without the necessity of a request from the driver. Records so classified, although not open to public inspection, "shall be open to inspection by authorized representatives of any federal, State, or local governmental agency." TR §12-111(b)(3).2 Therefore, by virtue of TR §12-111, a driver may have a "public driving record," that is, his or her current record, and a confidential record, that is, his or her old record.

The reference to expungement of a "licensee's public driving record" in TR §16-117.1 thus gives an eligible licensee a right to have expunged only those records that have not been classified as confidential because of their age.3 We recognize that this produces a somewhat ironic result: a licensee who waits more than five years after an event to request expungement will find that the record has become confidential, is no longer a "public driving record," and accordingly is not subject to expungement.4

C. Meaning of "expunge"

As applied to criminal records other than records pertaining to violations of vehicle or traffic laws, "expungement" means: "[T]he effective removal of these records from public inspection: (i) By obliteration; (ii) By removal to a separate secure area to which the public and other persons having no legitimate reason for being there are denied access; or (iii) If effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or the part of them providing the access." Article 27, §735(c).

Records so expunged may not be reviewed by or disclosed to any person without a court order entered after notice to the person to whom the record pertains and a hearing to show good cause for opening the record. Article 27, §739.5 Any review or disclosure of an expunged record without a court order is a misdemeanor. Moreover, unauthorized review or disclosure of an expunged record by a public official or employee subjects that person to removal or dismissal from his or her post on grounds of misconduct in office. Article 27, §739(d).

While TR §16-117.1 contains no comparable provisions regarding the disposition of expunged records and penalties for their unauthorized use, we nonetheless believe that the term "expungement" in that statute was intended to denote an equivalent removal of a driving record from all inspection, not merely from public inspection. We find the contrast between the language of TR §§16-117.1 and 12-111 persuasive in this regard. Under TR §12-111, old records are not "expunged," but classified as not open to public inspection; however, those records are expressly made available to governmental agencies. Had the General Assembly intended to authorize the same treatment of current records under TR §16-117.1, we think that it would surely have used similar language. At a minimum, we think that it would not have used the term "expunge" without elaboration, for that term's ordinary meaning is to obliterate or erase. Black's Law Dictionary 522 (5th ed. 1979); Webster's New International Dictionary 899 (2d ed. 1953).6

Further, we note that a bill was introduced in the 1986 legislative session that would have required that certain information from expunged driving records be retained and made available to the MVA, the courts, criminal justice agencies, and the licensee or the licensee's attorney. Senate Bill 826 (1986) at 2-3. That bill, which was proposed by the Governor's Task Force on the Drinking Driver, failed to pass. The bill's failure is at least some indication that TR §16-117.1 does not, in its present form, permit expunged records to be reviewable by anyone. See Demory Brothers, Inc. v. Board of Public Works, 273 Md. 320, 326 (1974). But see Automobile Trade Ass'n v. Insurance Comm'r, 292 Md. 15, 24 (1981).

Finally, our view is bolstered by the MVA's consistent practice in the past of completely expunging records of a licensee who is entitled to expungement. Such a consistent administrative practice, reflecting the agency's view of a statute's meaning, is entitled to considerable weight in construing the statute. That is particularly so where, as here, the General Assembly has declined to amend the statute to explicitly require or authorize a different practice. National Asphalt Pavement Ass'n v. Prince George's County, 292 Md. 75, 80 (1981).

Hence, we think that the MVA's current practice of completely obliterating the public driving record accurately reflects the General Assembly's intent in requiring the MVA to expunge certain driving records at the request of the licensee. Absent express statutory authorization, we believe that those expunged records may not be made available to any person or agency, including the MVA itself.

II
Use of Probation Before Judgment Records

A. Introduction

When a person is convicted of a crime or pleads nolo contendere, the trial court may stay the entering of judgment and place the person on probation pursuant to Article 27, §641.7 Upon fulfillment of the terms and conditions of probation, the person is entitled to be discharged without a judgment of conviction, and such a disposition "is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of crime." Article 27, §641(c).8

Administrative hearings are held by the MVA to consider whether a license or privilege should be refused, suspended, or revoked. TR §§12-202 and 12-203. In the course of such a hearing, the hearing officer reviews the applicant's or licensee's driving record. However, the record reviewed by the hearing officer does not, under current administrative practice, include any notation of any probation before judgment that the applicant or licensee may have received for a violation of TR §21-902, although the MVA keeps segregated records of those events. Your question is whether the MVA may make those records available to the hearing officer in an administrative hearing.

B. Consideration of Records

TR §16-117(b)(2) provides that the MVA "shall keep convenient records or make suitable notations showing the convictions or traffic accidents in which each licensee has been involved and every probation before judgment disposition of any violation of §21-902 of this article." Those records are not to be made available to the general public, but "shall be available only to the [MVA], the courts, criminal justice agencies, and the defendant or his attorney." TR §16-117(b)(2). See also TR §16-117(b)(5). However, "[t]hese records or notations shall be made so that they are readily available for consideration by the [MVA] of any license renewal application and at any other suitable time." TR §16-117(b)(3).

Records of the MVA's administrative hearing are ordinarily public information, pursuant to TR §12-111(b)(1). See Part I B above. Thus, there is some concern that the introduction of a record of a probation before judgment into the records of a hearing would violate TR §16-117(b)(2) and (5) by making that record available to the general public. However, we think that TR §16-117(b)(2) and (5), which specifically require that probation before judgment records be withheld from public disclosure, supersede the more general provision in TR §12-111(b)(1) that MVA records be open to the public "[e]xcept as otherwise provided by law . . . ." Accordingly, if the record of an administrative hearing includes a record of a probation before judgment disposition, that portion of the hearing record must be withheld from the general public.9 The ordinarily public nature of administrative hearing records thus does not preclude the introduction of a probation before judgment record into the administrative record of a hearing and consideration of it in making a decision. However, if anyone other than the licensee or the licensee's attorney asks to inspect the record of the proceeding, the probation before judgment record and references to it should be deleted from the information released.

TR §16-117(b)(3) provides that records of probations before judgment are to be available when the MVA considers a license renewal application "and at any other suitable time." In our view, an administrative hearing to consider suspension, revocation, or refusal of a license is an eminently "suitable" time to consider a licensee's record of probations before judgment. The objective of this type of hearing is to determine whether a licensee's driving history is such that he or she should be prevented from continuing to drive. Likewise, the objective in considering a license renewal application is to determine whether the applicant should be allowed to continue to drive. By stating that the MVA may consider probations before judgment in reviewing license renewal applications "and at any other suitable time," the General Assembly has, in our view, implied that the MVA may also consider probations before judgment in taking other actions that may result in depriving a person of his or her driving privilege.

C. Effect of Records

However, a probation before judgment may not be the basis for suspension or revocation of a driver's license under either TR §16-205 or TR §16-404. The first of those sections provides for suspension or revocation of the license of a driver based on his or her history of convictions for violating the various provisions of TR §21-902; the second provides for revocation or suspension of the license of a driver based on his or her accumulation of points under TR §16-402 for violations of various driving-related laws, including TR §21-902. Under each of those statutes, the imposition of a sanction is authorized only when the licensee has been convicted. See 70 Opinions of the Attorney General 218 (1985). Article 27, §641, which authorizes the imposition of probation before judgment, expressly provides that discharge of a person who has fulfilled the terms and conditions of such a probation "shall be without judgment of conviction and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of crime." Article 27, §641(c). We think that this provision, by its broad terms, precludes the MVA from regarding a probation before judgment as a conviction for the purposes of either TR §16-205 or §16-402.

For example, TR §16-205(a)(1) authorizes revocation of the license of a person who has been convicted of driving while intoxicated. But the MVA may not revoke, pursuant to that provision, the license of a person who has received a probation before judgment on a charge of driving while intoxicated but who has never been convicted of such a charge. Likewise, the MVA may not assess points against an individual, pursuant to TR §16-402, on the basis of that individual's receipt of probation before judgment and may not take account of a probation before judgment in determining whether a person has accumulated sufficient points to trigger suspension or revocation of his or her license under TR §16-404.

However, those are not the only statutes that provide for suspension, revocation, or refusal to renew a license. Under TR §16-206(a)(1)(ii), the MVA may also take such action "on a showing by its records or other sufficient evidence that the applicant or licensee . . . [i]s an unfit, unsafe, or habitually reckless or negligent driver of a motor vehicle . . . ." We think that the MVA may properly consider a licensee's receipt of probation before judgment for a violation of TR §21-902, in the context of the licensee's overall driving record, in determining whether to proceed under TR §16-206. That section, in our view, is intended to authorize the MVA to take action in appropriate cases to prevent dangerous drivers from continuing to drive. See 70 Opinions of the Attorney General at 225.

That is not to say that a license may be suspended or revoked under TR §16-206 on the basis of the licensee's receipt of probation before judgment on a single occasion. We think that the phrase "unfit, unsafe, or habitually reckless or negligent" must be read together as expressing a legislative intent that sanctions normally be imposed only on drivers whose records evince a pattern of dangerous behavior.10

We believe that the use of probation before judgment records in this way would be consistent with the legislative intent in requiring the MVA to keep such records. While the enactment of that requirement was under consideration in the Senate, an amendment was offered that would have specified that records of probations before judgment "may not be used by the [MVA] for disciplinary or punishment purposes but shall be used for recordkeeping purposes only." That amendment was withdrawn, and no similar amendment was subsequently offered. 1981 Maryland Senate Journal 969. We think that this history is at least some evidence of the General Assembly's intent that the records would indeed be used for purposes that might be regarded as "disciplinary or punishment", that is, the suspension, revocation, or refusal to renew the license of a driver whose history of probations before judgment on charges related to alcohol or drug use indicates that he or she is an unfit, unsafe, or habitually reckless or negligent driver.

We do not think that the MVA's failure to make this use of probation before judgment records in the past precludes the MVA from doing so now. We believe that the legislative intent to have those records available when the MVA determines whether a licensee is an unfit or unsafe driver is clear. Under such circumstances, the MVA is not estopped from conforming its procedures to the statutory mandate. See Dixon v. United States, 381 U.S. 68, 72 (1965).

Nor do we think that taking such action would violate the rights of licensees. Under TR §16-206(c), except in exigent circumstances, a license may be suspended or revoked only after notice to the licensee and the opportunity for a hearing.11 The notice of a hearing must provide the licensee with a statement of, among other things, the legal authority and facts that are the basis for the proposed action. TR §12-204(2) and (3). Thus, licensees against whom the MVA contemplates taking action because of their receipt of probations before judgment must be given notice of that fact sufficient to enable them to prepare their defense. However, the MVA is not prevented from taking such action in an appropriate case by the mere fact that it has not previously done so.

III
Conclusion

In summary, it is our opinion that:

1. Driving records required to be expunged under TR §16-117.1 may not be retained and made available for inspection by the MVA, courts, or other governmental agencies of officials.

2. The MVA's records or notations of any probation before judgment on a charge of driving while intoxicated or under the influence of alcohol or drugs are to be available to the hearing officer and to the licensee's attorney in an administrative hearing.

J. Joseph Curran, Jr., Attorney General
C. J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 A licensee is entitled to expungement if: "(1) The licensee has not been convicted of a moving violation or a criminal offense involving a motor vehicle for the preceding 3 years, and the licensee's license never has been suspended or revoked; (2) The licensee has not been convicted of a moving violation or a criminal offense involving a motor vehicle for the preceding 5 years, and the licensee's record shows not more than one suspension and no revocation; or (3) The licensee has not been convicted of nor been granted probation before judgment for a violation of §21-902 of this article nor been convicted of any other moving violation or criminal offense involving a motor vehicle for the preceding 10 years, regardless of the number of suspensions or revocations." As explained in note 4 below, the record of a conviction or probation before judgment on a charge of driving while intoxicated or under the influence of alcohol or drugs is not itself ever subject to expungement.

2 The MVA has proposed new regulations that will mandate confidentiality for all records more than five years old or that pertain to events that occurred more than five years earlier. 14:14 Md. R. 1589 (July 2, 1987) (to be codified at COMAR 11.17.10.01-05).

3 TR §12-111, conversely, operates to withdraw from public access any records that are not current, including records of licensees who are not entitled to have their records expunged.

4 It is for this reason that the record of a conviction or probation before judgment for violating TR §21-902 is never subject to expungement. A driver who has such a record is not entitled to expungement before more than five years after the conviction or probation. TR §16-117.1(b)(3). After the expiration of five years, however, the record would become confidential and no longer subject to expungement.

5 Article 27, §739(c), however, authorizes a court to grant an ex parte order permitting a law-enforcement agency to review an expunged record when the record is needed in a pending criminal investigation and immediate access to the record is required to avoid jeopardizing the investigation or endangering life or property.

6 The requirement that certain records be expunged thus appears to conflict with the requirement of TR §12-111(b)(3) that "[a]ny record or record entry of any age shall be open to inspection" by governmental agencies. TR §12-111 concerns the records of the MVA in general, including but not limited to the driving records of individual licensees. TR §16-117.1 applies specifically to the driving records of particular licensees. Therefore, to the extent that TR §16-117.1 and TR §12-111(b)(3) cannot both be given full effect, TR §16-117.1 must control the determination of whether records required to be expunged may be retained in a way that makes them accessible to governmental agencies.

7 However, the court may not grant such probation before judgment for an incident of driving while intoxicated or while under the influence of alcohol that occurred within five years of a previous incident of this kind. Article 27, §641(a)(2).

8 When the offense for which a person is given probation before judgment is driving while intoxicated or while under the influence of alcohol, the court must ordinarily require as a condition of the probation that the person participate in an alcohol treatment or education program approved by the Department of Health and Mental Hygiene. Article 27, §641(a)(1)(ii).

9 The Maryland Public Information Act itself similarly provides that certain information in otherwise public records is nondisclosable. §10-617 of the State Government Article. Thus, it is by no means unprecedented for public records to be in part disclosable and in part nondisclosable.

10 However, there may be cases in which a single conviction would give rise to action under TR §16-206, for example, if the circumstances surrounding the incident show that the licensee poses an immediate and serious threat to the public or if the licensee suffers from an ongoing physical or mental condition that makes the licensee an unfit or unsafe driver. See also note 11 below.

11 Immediate suspension of a license pending the hearing is permitted only if the MVA "determines that there is a likelihood of substantial and immediate danger and harm to the licensee or others if the license is continued pending a hearing. . . ." TR §16-206(c)(1). Under those circumstances, a hearing must be granted within seven days of the licensee's request, and the hearing officer must decide immediately after the hearing whether to continue the suspension or revoke the license.