Which version of Maryland's drunk-driving license suspension law controlled when two 1989 laws amended the same statute without referencing each other?

Plain-English summary

At the end of 1989, Maryland's Motor Vehicle Administrator asked the Attorney General to untangle a mess created by the General Assembly's own 1989 session. Two separate laws, the Drunk Driving Act (Chapter 284) and the Commercial Driver's License Act (Chapter 291), both took effect January 1, 1990, and both amended the very same Transportation Article section, §16-205.1, governing license suspensions and disqualifications for alcohol-related driving offenses. Neither law referenced the other, so the Code's publisher printed both sets of changes side by side in the 1989 supplement, producing several places where the published statute flatly contradicted itself: one part said hearings would be scheduled automatically, another said a driver had to request one; one part described an old, broader authority for the MVA to soften a suspension, another described a newer, narrower version of that same authority. The opinion worked through each conflict and decided, based on what each act was actually trying to accomplish, which published provision reflected the General Assembly's real intent and which had simply been left in by mistake. It concluded that the Drunk Driving Act's newer hearing-request procedure and its narrower suspension-modification rule controlled, that the old automatic-hearing and broader-modification language should be disregarded as publication error, and that a provision requiring officers to warn commercial drivers about license consequences should be read narrowly to apply only when a driver refused the alcohol test. The opinion closed by recommending the General Assembly pass an emergency technical fix, since MVA hearings under the confusing statute were set to begin within weeks.

Currency note

This opinion was issued in 1989. 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's own text, as later annotated by the Attorney General's office, records that Chapters 11 (Senate Bill 398) and 413 (House Bill 492) of the Laws of Maryland 1990, the very next legislative session, substantially rewrote the statutory provisions discussed in this opinion.

Common questions

In 1989, which version of Maryland's drunk-driving hearing procedure controlled after two conflicting laws were published together? According to this opinion, the newer procedure requiring a driver to request a hearing within 10 days of a suspension order, enacted by the Drunk Driving Act and printed as TR §16-205.1(g), controlled. The opinion concluded the old automatic-scheduling language mistakenly reprinted at TR §16-205.1(f)(1) and (2) had been repealed and should be disregarded.

Did a police officer have to warn every commercial driver about losing commercial driving eligibility? No, per the opinion's reading. It concluded the warning requirement in TR §16-205.1(b)(1)(iii) applied only if the driver refused the alcohol test, not if the driver took the test and failed it, since only a test refusal (not a failed test) could trigger commercial-driving disqualification under the law as it then stood.

Could the Motor Vehicle Administration still soften a license suspension under the old, broader rule the Code supplement printed? No. The opinion concluded the Drunk Driving Act's narrower modification authority, printed at TR §16-205.1(l) and limited to drivers who took the test, needed a license for work or treatment, and had a clean five-year record, was the only modification authority that applied; the broader old rule reprinted at TR §16-205.1(f)(5) had been repealed and should not be given effect.

Was this confusion ever fixed?
Yes. As the opinion itself recommended an emergency legislative fix, and an editor's note attached to the opinion records that the very next year's General Assembly, through Chapters 11 and 413 of the Laws of Maryland 1990, substantially rewrote the provisions this opinion had to untangle.

Background and statutory framework

The conflict arose because the Drunk Driving Act of 1989 (Chapter 284) and the Commercial Driver's License Act of 1989 (Chapter 291) each separately amended Transportation Article §16-205.1 to serve different purposes: the Drunk Driving Act overhauled the implied-consent testing procedures, sanctions, and hearing process for all drivers testing at or above a .10 alcohol concentration or refusing the test, while the CDL Act separately authorized disqualifying commercial drivers who refused the test. Because the two acts made no reference to each other, the Code's publisher printed both sets of amendments into the 1989 cumulative supplement without resolving the overlaps, producing internally inconsistent text, most notably duplicate and contradictory hearing-scheduling provisions at TR §16-205.1(f)(1)-(2) versus §16-205.1(g), and duplicate suspension-modification provisions at §16-205.1(f)(5) versus §16-205.1(l).

The opinion's analytical starting point was Article 1, §17 of the Maryland Code, the general rule for reconciling multiple amendments to the same code section: where two amendments do not reference each other, courts construe them together and give effect to both if possible, but where they are irreconcilable, the latest enactment controls. Citing Mass Transit Administration v. Baltimore County Revenue Authority for discerning legislative intent from an enactment's purpose and language, Prince George's County v. McBride for the principle that repeal by implication is disfavored, and Mayor and City Council of Baltimore v. Clerk of Superior Court for giving full effect to each act unless truly irreconcilable, the opinion worked through each specific conflict rather than declaring one entire act superior to the other.

On hearing scheduling, the opinion found the Drunk Driving Act had completely repealed and replaced the old automatic-hearing procedure in TR §16-205.1(f) with a new request-based procedure, which the publisher correctly relocated to new §16-205.1(g), but the publisher had also mistakenly left the old, repealed automatic-scheduling language sitting at §16-205.1(f)(1)-(2). Since giving effect to both was impossible, and the Drunk Driving Act's intent to replace the old procedure was unmistakable, the opinion concluded §16-205.1(g) controlled. On the CDL warning requirement, the opinion read the CDL Act's advisory provision narrowly in light of the fact that only a test refusal, not a failed test, could disqualify a commercial driver at that time, so an officer needed to give the CDL-specific warning only in the refusal scenario. On suspension modification, the opinion found the Drunk Driving Act had substituted a narrower modification authority (available only to drivers who took the test, needed the license for work or alcohol treatment, and had a clean record for five years) for the CDL Act, which had not touched modification authority at all; the publisher had again mistakenly reprinted the old, broader modification rule at §16-205.1(f)(5) after the General Assembly repealed it, and had left an erroneous, outdated suspension-length table at §16-205.1(f)(4) instead of the correct, longer periods enacted by the Drunk Driving Act at §16-205.1(g)(4)(ii) and (g)(7)(iii). Given the practical urgency, since thousands of hearings under the confusing statute were expected before the General Assembly's next session ended, the opinion recommended an emergency technical-amendment bill to clean up the published text.

Citations and references

Statutes:

• Transportation Article §16-205.1 and its subsections (b)(1), (b)(1)(i)-(iii), (f)(1), (f)(2), (f)(4), (f)(5), (g), (g)(4), (g)(4)(ii), (g)(7)(iii), and (l), Maryland's implied-consent/license-suspension statute for alcohol-related driving offenses, as amended by two conflicting 1989 acts
• Transportation Article §16-808(5), disqualifying a driver from commercial driving during a license suspension
• Transportation Article §11-111.1 and §11-109.1, defining "disqualification" and "commercial motor vehicle"
• Transportation Article §21-902, the criminal DUI/DWI statute referenced in the suspension-modification eligibility rule
• Article 1, §17 of the Maryland Code, the general rule for construing multiple, non-cross-referencing amendments to the same code section
• Chapter 284, Laws of Maryland 1989, the Drunk Driving Act
• Chapter 291, Laws of Maryland 1989 (including §§3 and 7), the Commercial Driver's License Act

Cases:

• Mass Transit Administration v. Baltimore County Revenue Authority, 267 Md. 687, 695-96, 298 A.2d 413 (1973), on discerning legislative intent from the purpose and language of enactments
• Prince George's County v. McBride, 263 Md. 235, 242-43, 282 A.2d 486 (1971), on the disfavored status of repeal by implication
• Mayor and City Council of Baltimore v. Clerk of Superior Court, 270 Md. 316, 319-20, 311 A.2d 261 (1973), on giving full effect to each of two acts unless they are truly irreconcilable

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/1989/Volume74_1989.pdf (this opinion appears at printed pages 295-302 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

Vehicle Law - Drunk Driving Act - Commercial Driver's License Act - Effect Of Amendments To Same Section of Code

December 21, 1989

Mr. W. Marshall Rickert
Motor Vehicle Administrator

You have requested our opinion concerning the version of §16- 205.1 of the Transportation Article ("TR" Article) that appears in the 1989 cumulative supplement to that article. After the passage of two major acts in the last session of the General Assembly amending that section, the version of TR §16-205.1 published in the 1989 supplement contains several significant inconsistencies.

For the reasons stated below, we conclude as follows:

1. The procedures for the scheduling of hearings are those set out in TR §16-205.1(g). The inconsistent procedures in TR §16- 205.1(f)(1) and (2) were published in error and should be disregarded.

2. TR §16-205.1(b)(1)(iii) should be read to require a police officer to advise a commercial motor vehicle driver of the driver's ineligibility to operate a commercial motor vehicle only if the driver refuses to take the test for alcohol after being requested to do so by the officer.1

3. The MVA's authority to modify a suspension is set out in TR §16-205.1(l). The inconsistent provision in TR §16-205.1(f)(5) was published in error and should be disregarded. In addition, the suspension periods for refusal to take a test are those set out in TR §16-205.1(g)(4)(ii) and (g)(7)(iii), not those erroneously published in TR §16-205.1(f)(4).

4. Finally, we recommend that an emergency bill be introduced in the next session correcting the published version of TR §16-205.1.

1 The officer should also provide the same information about license suspension as the officer would to any driver. See note 6 below.

I

Harmonizing The Drunk Driving Act
And The Commercial Driver's License Act

The Drunk Driving Act of 1989, Chapter 284 of the Laws of Maryland 1989 ("Chapter 284" or "Drunk Driving Act"), and the Commercial Driver's License Act of 1989, Chapter 291 of the Laws of Maryland 1989 ("Chapter 291" or "CDL Act"), both of which take effect on January 1, 1990, contain several substantive amendments to TR §16-205.1. To cite perhaps the most important of its provisions, the Drunk Driving Act amended TR §16-205.1 to authorize the Motor Vehicle Administration ("MVA") to suspend the license of a person who drives with an alcohol concentration of .10 or more. Likewise, the CDL Act amended TR §16-205.1 to authorize the MVA to disqualify a person from operating a commercial motor vehicle if that person refused the test for alcohol.2 Other amendments will dramatically change the procedures used by the MVA and the police in handling drunk drivers and the sanctions available to the MVA in disposing of a case brought before it under TR §16-205.1.

Article 1, §17 of the Maryland Code provides the background for our review of the amendments to TR §16-205.1 made by the Drunk Driving Act and the CDL Act. Article 1, §17 provides as follows:

If two or more amendments to the same section or subsection of the Code are enacted at the same or different sessions of the General Assembly, and one of them makes no reference to and takes no account of the other or others, the amendments shall be construed together, and each shall be given effect, if possible, and with due regard to the wording of their titles. If the amendments are irreconcilable and it is not possible to construe them together, the latest in date of final enactment shall prevail.

2 A "disqualification" means "a prohibition against driving a commercial motor vehicle ...." TR §11-111.1. A "commercial motor vehicle" is defined in TR §11- 109.1 as generally including vehicles with a gross vehicle weight of 26,001 or more pounds, vehicles designed to transport 16 or more passengers, or vehicles transporting hazardous materials.

The CDL Act and Drunk Driving Act make no reference to each other. In determining the combined effect of their amendments to TR §16-205.1, we must try to discern the legislative intent from the purpose and language of the enactments. Mass Transit Administration v. Baltimore County Revenue Authority, 267 Md. 687, 695-96, 298 A.2d 413 (1973). While the CDL Act was signed after the Drunk Driving Act, that fact is to be considered only if the acts are irreconcilable and cannot stand together; repeal by implication is disfavored. Prince George's County v. McBride, 263 Md. 235, 242- 43, 282 A.2d 486 (1971). The acts are each to be given full effect unless irreconcilable. Mayor and City Council of Baltimore v. Clerk of Superior Court, 270 Md. 316, 319-20, 311 A.2d 261 (1973).3

The purpose of the CDL Act, in pertinent part, is (1) to create a commercial driver's license, and (2) as it relates to TR §16.205.1, to require that operators of commercial motor vehicles "impliedly consent to take a chemical breath test if any alcohol is detected in the operator." See Chapter 291, title.

In contrast, the purpose of the Drunk Driving Act, as it relates to TR §16-205.1, is (1) to "alter provisions relating to the implied consent to take certain tests," (2) to "establish certain sanctions for certain test results," (3) "to establish certain procedures," and (4) to provide "for the issuance of a restricted license and modification of a license suspension under certain circumstances ...." See Chapter 284, title.

The two acts' amendments to TR §16-205.1 must be read with these different goals in mind. In our view, these amendments can and should be construed so as to give effect to the legislative intent of the two acts. The published version of TR §16-205.1 in the 1989 cumulative supplement to the Transportation Article does not properly reflect the legislative intent underlying the amendments to TR §16- 205.1 in the several respects described below.

3 The publisher of the Annotated Code did not view either of the acts making amendments to TR §16-205.1 as prevailing. Instead, the publisher published both sets of amendments to TR §16-205.1 and thus included inconsistent language in its publication.

II

Scheduling of Hearings

Under the language of TR §16-205.1(f)(2) in effect until January 1, 1990, a licensee who refuses a test for alcohol automatically is scheduled to receive a hearing within 30 days of the date of detention. Effective January 1, 1990, the Drunk Driving Act, Chapter 284, repeals TR §16-205.1(f) in its present form. Instead, the Drunk Driving Act enacted new procedures, which were designated by Chapter 284 to be a completely new TR §16-205.1(f). See Laws of Maryland 1989 at 2340-45. Under these new procedures, a person may submit a request for a hearing within 10 days of the date of the issuance of an order of suspension. This new provision, that the hearing be requested by the licensee, applies not only when the licensee refuses to test for alcohol but also when the licensee takes the test and is found to have an alcohol concentration of .10 or more.

Thus, as of January 1, 1990, when the Drunk Driving Act, becomes effective, the licensee must request a hearing within 10 days of the date of the issuance of an order of suspension. A hearing will no longer be scheduled automatically.

The CDL Act, Chapter 291, did not amend the present wording of TR §16-205.1(f)(2). Thus that act, standing alone, did not provide for any change in the procedures by which a licensee obtains a hearing at the MVA. Nevertheless, when the General Assembly enacted Chapter 284 and thereby repealed current TR §16-205.1(f) and enacted instead the new procedures discussed above, it unmistakably intended to provide that all hearings held under TR §16-205.1 comply with the new procedures.

The publisher, in printing amended TR §16-205.1 in the 1989 cumulative supplement, properly included the new procedures that the Drunk Driving Act had designated to be new TR §16-205.1(f). Because of the need to accommodate other subsections of TR §16- 205.1, the publisher put these procedures in new TR §16-205.1(g). That redesignation is no problem. The problem, however, is that the publisher also printed, in the supplement's TR §16-205.1(f)(1) and (2), the same language about the automatic scheduling of hearings that the General Assembly had repealed in Chapter 284.

Although it is impossible to give effect to both TR §16-205.1(f)(1) and (2) and to TR §16-205.1(g), as set out in the 1989 supplement, it is certainly possible to discern what the General Assembly intended. In our view, TR §16-205.1(g) in the 1989 supplement properly represents the procedures that the General Assembly intended be followed by the MVA, the police, and the general public in those instances in which a test for alcohol is refused or the test result shows an alcohol concentration of .10 or more. The procedures outlined in TR §16-205.1(g) apply regardless of whether the driver was operating a commercial motor vehicle or a non-commercial motor vehicle.

III

Advice About CDL Eligibility

Currently, TR §16-205.1(b)(1) provides that a police officer is to advise the detainee of the licensing sanctions that are to be imposed if the detainee refuses the test for alcohol. As of January 1, 1990, the Drunk Driving Act requires the officer also to explain the licensing consequences in the event that the licensee is tested and the result indicates an alcohol concentration of 0.10 or more. Laws of Maryland 1989 at 2334-36. This new requirement is codified at TR §16- 205.1(b)(1)(i) and (ii).

The CDL Act provides that the police officer must advise a driver detained in a commercial motor vehicle of the consequences to the driver's eligibility to operate a commercial motor vehicle if the driver refuses the test. See Laws of Maryland 1989 at 2453. The CDL Act does not provide that the driver may be disqualified from his or her commercial driving eligibility if the driver takes the test with a resulting alcohol concentration of .10 or more.4

The provision in the CDL Act regarding advice about disqualification is set out at TR §16-205.1(b)(1)(iii) in the 1989 supplement, following the provisions in the Drunk Driving Act. Thus

4 Of course, that test result would lead to a suspension of the driver's license.
During the period of the suspension, the person would be ineligible to drive a commercial vehicle. TR §16-808(5).
In 1992, it will become an offense for a person to drive a commercial motor vehicle with an alcohol concentration of .04 or more. See Chapter 291, §§3 and 7.

positioned, TR §16-205.1(b)(1)(iii) reads as if it requires the detaining officer to advise a commercial motor vehicle driver that the person may be disqualified from operating a commercial motor vehicle if the person takes the chemical test and the test result indicates an alcohol concentration of .10 or more. Since the person may be disqualified from operating a commercial motor vehicle only if the person refuses the test, there is no basis for the police officer's advising the person of any consequences to the person's eligibility to drive a commercial motor vehicle if the person takes the test, regardless of the test's results.5

Thus, it is our view that TR §16-205.1(b)(1)(iii), as printed in the 1989 supplement, should be construed to require the police officer to advise a commercial motor vehicle operator about disqualification only in the event that the person refused the test for alcohol.6

IV

Modification and Length of Suspensions

TR §16-205.1(g)(4) and (g)(7)(iii), as published in the 1989 supplement, correctly spell out the suspension periods for test results showing an alcohol concentration of .10 or more and for test refusals.7 The published version of TR §16-205.1, however, contains inconsistent provisions regarding the authority of the MVA to modify this suspension.

The Drunk Driving Act allows the MVA to modify a suspension under TR §16-205.1 only when the suspended driver took the test, the person needs a license for employment or alcohol treatment, and the

5 An advisement of that kind will be needed as of April 1, 1992, when the driver of a commercial vehicle with an alcohol concentration of .04 or more will be subject to being disqualified.
6 The officer would also advise the driver about license suspension, as distinct from CDL eligibility, either in the event of test refusal or if the test showed an alcohol concentration of .10 or more.
7 This language is the redesignation of the provisions enacted as TR §16-205.1 (f)(4) and (f)(7)(iii) by Chapter 284. See Laws of Maryland at 2340 and 2343-44.

person has no violations of TR §16-205.1 or convictions under TR §21- 902 during the past five years. Chapter 284, Laws of Maryland 1989 at 2344-45. This narrow exception to the mandatory suspension periods otherwise provided for in TR §16-205.1 is set out at TR §16- 205.1(l) in the 1989 supplement. The legislative intent is further evidenced by the General Assembly's repeal of the modification provisions in current TR §16-205.1(f)(5).8

The CDL Act, on the other hand, did not address the MVA's authority to modify a suspension; rather, that act dealt only with the mandatory disqualification periods for refusing a test. See TR §16- 205.1(f)(6) through (8), as enacted by Chapter 291, Laws of Maryland 1989 at 2456-57.

The publisher, rather than deleting the language of the current TR §16-205.1(f)(5) effective January 1, 1990, as envisioned by the General Assembly when it repealed that paragraph in Chapter 284, republished the paragraph as the new TR §16-205.1(f)(5). In our view, TR §16- 205.1(f)(5), as printed in the 1989 supplement, should not be given effect. The only instance in which a suspension imposed under TR §16-205.1 may be modified is pursuant to the provisions of Chapter 284, redesignated as TR §16-205.1(l) in the 1989 supplement.

Finally, TR §16-205.1(f)(4) in the 1989 supplement contains an error. It indicates that the suspension period for refusal to take a test is 60 days to 6 months for a first offense and 120 days to one year for a second or subsequent offense. These suspension periods were repealed when current TR §16-205.1(f) was repealed by Chapter 284. Effective January 1, 1990 the longer, mandatory suspension periods enacted by Chapter 284, 120 days for a first offense and one year for a second or subsequent offense, will be applicable, as set out in TR §16-205.1(g)(4)(ii) and (g)(7)(iii) in the 1989 supplement.

8 Under the current provision, the MVA may modify a suspension or issue a restrictive license for alcohol treatment or employment reasons, even if the driver has a record of prior violations. Moreover, the current provision permits modification of a suspension even if the driver refused the test.

V

Conclusion

In summary, it is our opinion that the published version of TR §16- 205.1, in the several respects discussed in this opinion, does not properly give effect to the goals of the General Assembly in enacting the Drunk Driving Act and the CDL Act.

Given the significance of these two acts, and the fact that most attorneys and the general public rely on the publisher's version of the law, we strongly recommend that the language of this section be clarified through technical amendments in the next session of the General Assembly. Also, because we understand that hearings at the MVA under this section are not expected to begin until early February, but that thousands of hearings will be held before the General Assembly adjourns in April, we recommend that the appropriate amendments to this section be enacted on an emergency basis.

J. Joseph Curran, Jr.
Attorney General

Edward R. K. Hargadon
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note:

Chapters 11 (Senate Bill 398) and 413 (House Bill 492) of the Laws of Maryland 1990 substantially rewrote the provisions discussed in this opinion.