MVA suspension upheld in refusal of breath test

October 26, 1995|By Dennis O'Brien | Dennis O'Brien,SUN STAFF

The state's highest court yesterday upheld a Motor Vehicle Administration decision to suspend the driver's license of the son of one of the judges for refusing to take a breath test after he was suspected of drunken driving.

The Court of Appeals ruled that a sworn written statement by police officer was sufficient evidence for an administrative law judge to suspend Lee Daniel Karwacki's license for a year.

Mr. Karwacki, 35, of Baltimore is the son of Judge Robert L. Karwacki, who recused himself from taking part in the decision.

Officer Archie Price noticed a "strong odor of alcohol" on Mr. Karwacki's breath after he was stopped at 3:15 a.m. Nov. 6, 1993 for running a red light at Hamilton and Walther avenues in Baltimore, the court record shows. Mr. Karwacki refused to take a breath test and signed a form saying he had been advised the refusal could subject him to a 120-day suspension for a first offense and up to a one-year suspension for a second refusal. He received a 45-day temporary license and requested an MVA hearing.

At the hearing, Mr. Karwacki said he would have taken a test had Officer Price told him he could lose his license for up to a year.

Based on the officer's written statement and the form signed by Mr. Karwacki, Administrative Law Judge Arthur J. Novotny suspended the license.

A Baltimore Circuit Court judge ruled in 1994 that the administrative judge could not weigh the officer's credibility without his testimony. However, the Court of Appeals, in a 6-1 vote, said the administrative judge can best balance the officer's statement against the motorist's claims.

Court of Special Appeals Judge Robert F. Fischer, assigned to the case to replace Judge Karwacki, dissented, saying the officer should have been at the hearing because the sole issue was whether he advised Mr. Karwacki on the penalties.

The decision is "terrible," said Russell J. White, Mr. Karwacki's lawyer. "The effect is to deny the accused certain rights, like the right to confront and cross-examine your accuser."

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