Could Maryland count a commercial driver's pre-1990 traffic offenses toward longer license disqualification under the new Commercial Driver's License Act?

Plain-English summary

In 1989, Maryland's Motor Vehicle Administration asked the Attorney General whether it could look at a commercial driver's traffic offenses from before January 1, 1990, the effective date of Maryland's new Commercial Driver's License Act, when deciding how long to disqualify that driver for a later offense. Under the Act, a driver's period of disqualification from operating a commercial motor vehicle got longer with each additional "serious" offense within a set window, up to a lifetime ban for repeat serious violations. The opinion concluded the MVA could count pre-1990 convictions. It reasoned that an enhanced-penalty law for repeat offenders punishes the most recent offense more heavily because that offense shows a demonstrated pattern of misconduct; it does not go back and re-punish the earlier offense itself. Looking at a driver's full history to size the penalty for a new, post-1990 offense is therefore a prospective application of the law, even though the history being consulted predates the statute. The opinion found this consistent with a long line of Maryland and out-of-state cases upholding "subsequent offender" and "habitual offender" statutes against retroactivity and ex post facto challenges, including cases specifically involving driver's license revocations for repeat offenses.

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.

Common questions

In 1989, could Maryland's MVA count a commercial driver's offenses from before the Commercial Driver's License Act took effect?
Yes, according to this opinion. It concluded the MVA could take into account any conviction for a serious offense, whether it occurred before or after the Act's January 1, 1990 effective date, when determining the length of a disqualification for a later offense.

Wasn't that an improper retroactive application of the new law?
No, the opinion concluded. It characterized this as a prospective application: the enhanced penalty attaches to and punishes the newest offense (which shows a repeated pattern), not the earlier offense itself, so consulting pre-1990 history to size a post-1990 penalty does not retroactively punish anyone for conduct that predated the law.

Did the opinion rely only on Maryland cases?
No. It drew on a long line of Maryland Court of Appeals cases on "subsequent offender" statutes (Taylor v. Warden, Murray v. State, Garrigan v. Superintendent), the U.S. Supreme Court's Gryger v. Burke, and out-of-state cases specifically involving driver's license disqualification for repeat offenses, including Fowler v. State (Georgia) and Ragland v. McNeill (Missouri).

Did the pre-1990 offenses have to have happened in a commercial vehicle to count?
Yes. The opinion noted that only convictions for offenses committed while driving a commercial motor vehicle count under TR §16-812, and since MVA's older records did not indicate whether a given offense happened in a commercial vehicle, that would need to be established separately at a disqualification hearing.

Background and statutory framework

Maryland's Commercial Driver's License Act, Chapter 291 (House Bill 558) of the Laws of Maryland 1989, added a new Subtitle 8 to Title 16 of the Transportation Article to implement the federal Commercial Motor Vehicle Safety Act of 1986. Its stated purpose, in TR §16-802, was to strengthen licensing and testing standards for commercial drivers and disqualify them from driving commercial vehicles after certain criminal and serious traffic violations. TR §16-812 set disqualification periods for a first offense (one year for DUI, leaving the scene of an accident, certain serious crimes committed while driving commercially, or refusing chemical testing; three years if hazardous material was involved), then imposed sharply longer disqualifications for repeat offenders: a lifetime ban for two or more of those offenses under §16-812(c), 60 days for two "serious traffic violations" (defined in TR §16-803(h) as things like excessive speeding or reckless driving) within three years under §16-812(f), and 120 days for three such violations within three years under §16-812(g). The pertinent provisions took effect January 1, 1990, and the MVA needed to know whether a driver's pre-1990 record counted toward these escalating penalties.

The opinion first established the general framework: Maryland statutes are presumed to apply only prospectively absent clear language or manifest legislative intent to the contrary, citing NCR Corporation v. Comptroller, Mason v. State, and Washington Sub. Sanit. Comm'n v. Riverdale Fire Co. Since nothing in the Commercial Driver's License Act showed intent to reach back and retroactively punish pre-Act conduct, the opinion applied the statute prospectively, but concluded that considering pre-1990 convictions to size a post-1990 disqualification was itself a prospective application, not a retroactive one.

To support that conclusion, the opinion turned to Maryland's line of "subsequent offender" cases interpreting enhanced criminal penalties for repeat narcotics offenders: Taylor v. Warden, Garrigan v. Superintendent, and Murray v. State all held that a statute imposing greater punishment on a previously convicted defendant does not create a new offense or retroactively punish the earlier one; it is prospective because the enhanced penalty attaches to and punishes only the newest offense. The opinion found the U.S. Supreme Court's decision in Gryger v. Burke consistent with this approach in the habitual-criminal context, along with several federal appellate decisions applying the same reasoning to enhanced federal sentencing statutes (United States v. Karnes, U.S. v. Karlin, Lawrence v. Jones, Covington v. Sullivan, and U.S. v. Sanchez).

Because Maryland courts had not yet addressed whether this reasoning extends from criminal sentencing to a driver's license disqualification proceeding, the opinion looked to how other states had handled essentially the same question. It found direct support in People v. Sweet (California), State v. Haverluk (North Dakota), and State v. Willis (Minnesota), each holding an enhanced-penalty statute is not retroactive merely because it draws on facts that predate its enactment, and, more specifically, in Fowler v. State (Georgia) and Ragland v. McNeill (Missouri), both upholding driver's license revocations or "habitual violator" determinations that relied on offenses committed before the enhanced-penalty statute existed, along with Israel v. Cofer (Georgia) and Wilsch v. Bencar (Ohio) on related points. Based on this body of law, the opinion concluded Maryland courts would likely treat the Act's subsequent-offender provision the same way, so the MVA's consideration of pre-1990 convictions would not be an improper retroactive application of the Act. The opinion added one practical caveat: since only offenses committed while driving a commercial motor vehicle count toward disqualification under §16-812, and older MVA records did not indicate whether a given offense happened in a commercial vehicle, establishing that fact for any pre-1990 offense would need to be part of a disqualification hearing.

Citations and references

Statutes:

• Transportation Article §16-802, stating the Commercial Driver's License Act's purpose
• Transportation Article §16-812 and its subsections (a) through (g), setting disqualification periods and repeat-offense enhancements
• Transportation Article §16-803(h), defining "serious traffic violation"
• Chapter 291 (House Bill 558), Laws of Maryland 1989, enacting the Commercial Driver's License Act
• Commercial Motor Vehicle Safety Act of 1986, Pub. L. No. 99-570, Title XII, 100 Stat. 3207-170, codified at 49 U.S.C. App. §§2701 through 2716, the federal law the Act implements
• Article I, §9, clause 3 of the U.S. Constitution, the Ex Post Facto Clause

Cases:

• NCR Corporation v. Comptroller, 313 Md. 118, 125, 544 A.2d 764 (1988), Mason v. State, 309 Md. 215, 219-220, 522 A.2d 1344 (1987), and Washington Sub. Sanit. Comm'n v. Riverdale Fire Co., 308 Md. 556, 560-61, 520 A.2d 1319 (1987), on the presumption that Maryland statutes apply only prospectively
• Taylor v. Warden, 213 Md. 646, 131 A.2d 720 (1956), Murray v. State, 236 Md. 375, 203 A.2d 908 (1964), and Garrigan v. Superintendent, 218 Md. 662, 146 A.2d 431 (1958), holding subsequent-offender criminal statutes are prospective, not retroactive
• Gryger v. Burke, 334 U.S. 728 (1948), upholding a habitual-criminal life sentence based partly on a pre-statute conviction, since the enhanced penalty punishes the latest, repetitive offense
• United States v. Karnes, 437 F.2d 284, 289-90 (9th Cir. 1971), U.S. v. Karlin, 852 F.2d 968, 973-74 (7th Cir. 1988), Lawrence v. Jones, 837 F.2d 1572, 1574 (11th Cir. 1988), Covington v. Sullivan, 823 F.2d 37, 39 (2d Cir. 1987), and U.S. v. Sanchez, 684 F. Supp. 173, 174 (N.D. Ill. 1988), federal decisions applying the same non-retroactivity reasoning to enhanced sentencing statutes
• People v. Sweet, 254 Cal. Rptr. 567 (Cal. App. 1989), State v. Haverluk, 432 N.W.2d 871, 873-74 (N.D. 1988), and State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983), holding enhanced-penalty statutes are not retroactive merely because they draw on pre-enactment facts
• Fowler v. State, 221 S.E.2d 9 (Ga. 1975), Ragland v. McNeill, 747 S.W.2d 701 (Mo. App. 1988), Israel v. Cofer, 262 S.E.2d 545, 546 (Ga. App. 1979), and Wilsch v. Bencar, 219 N.E.2d 311, 313 (Ohio App. 1966), upholding driver's license revocations or habitual-violator determinations based partly on pre-enactment offenses

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 288-294 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

Commercial Driver's License Act - Disqualification From Driving
Commercial Motor Vehicle - MVA May Take Into Account Serious
Offenses Committed Before Act's Effective Date In Determining
Period Of Disqualification

                     September 15, 1989

W. Marshall Rickert
Administrator
Motor Vehicle Administration

 You have requested our opinion concerning the applicability of

certain provisions of Chapter 291 (House Bill 558) of the Laws of
Maryland 1989, the Commercial Driver's License Act, to a commercial
driver with a history of offenses deemed to be "serious" under the Act.
Under the Act's regulatory scheme, the severity of sanctions will
depend upon the driver's prior record. That is, a commercial driver
will be subject to longer periods of disqualification from driving a
commercial motor vehicle following an offense if the driver has
previously committed serious offenses.

The pertinent portions of the Act become effective on January 1,

1990. You raise the question of whether the Motor Vehicle
      Administration may take into account serious traffic offenses that
      occurred prior to January 1990 in its determination of whether a
      commercial driver has committed multiple offenses.

      For the reasons stated below, we conclude that the MVA may take
      into account any conviction for a serious offense in determining the
      period of disqualification, whether that conviction occurred prior to or
      after the effective date of the Act.

                                         I
      
                      Disqualification Under the
                    Commercial Driver's License Act
      

      The Act establishes a new Subtitle 8 to Title 16 of the
      Transportation Article ("TR" Article). The purpose of the new subtitle
      is to strengthen the licensing and testing standards for commercial
      vehicle operators and to disqualify persons from driving commercial
      motor vehicles after certain criminal and serious traffic violations. TR
      §16-802.1

      TR §16-812 itemizes both the grounds for and duration of
      disqualification from driving a commercial motor vehicle.2 Under TR
      §16-812(a), a commercial driver is disqualified for one year if the
      driver is convicted of: driving while intoxicated or under the influence
      of alcohol or drugs; leaving the scene of an accident; committing a
      crime punishable by death or imprisonment for a term of more than
      one year, while driving a commercial motor vehicle; or refusing to
      undergo chemical testing for alcohol.3

      Certain provisions in the Act increase the length of a
      disqualification if the conviction is for a second or subsequent offense.
      With respect to the offenses listed in TR §16-812(a), the MVA "shall
      disqualify any person from driving a commercial motor vehicle for life
      for two or more violations of any of [those] offenses ..., or any
      combination of those offenses, arising from two or more separate
      incidents." TR §16-812(c). Under TR §16-812(f), the MVA "shall
      disqualify any person from driving a commercial motor vehicle for a
      period of 60 days if convicted ... of 2 serious traffic violations
      committed in a commercial motor vehicle arising from separate

      1 This statute implements the federal Commercial Motor Vehicle Safety Act of
      1986, Pub. L. No. 99-570, Title XII, 100 Stat. 3207-170, codified at 49 U.S.C. App.
      §§2701 through 2716.
      2 The disqualification applies only when the licensee is driving a commercial
      motor vehicle.
      3 TR §16-812(b) requires that the disqualification be for three years if the driver
      is transporting hazardous material. TR §16-812(c) imposes a lifetime disqualification
      for use of a commercial motor vehicle in drug-related felonies.

incidents occurring within a 3-year period."4 Finally, TR §16-812(g)
increases the period of disqualification to 120 days if the driver has
been convicted of three serious offenses within three years.

 Thus, it is important for the MVA to determine whether the

commercial driver's current offense is a first or subsequent offense.
To make that determination, the MVA must know whether offenses
that occurred prior to January 1, 1990 are to be considered.

                                      II

                Construction of Statutes Heightening
                 Sanctions After Multiple Offenses

A. Introduction

  A law applies prospectively if it "operates on conduct, events, and

circumstances which occur after its enactment"; it applies retroactively
if it "operates on transactions which occurred ... before passage of the
act." 2 Sutherland Statutory Construction §41.01, at 337 (4th ed.
1986).

 It has long been established in Maryland that a statute is intended

to be given prospective effect only, absent clear language or manifest
legislative intent that it is to have retrospective application. NCR
Corporation v. Comptroller, 313 Md. 118, 125, 544 A.2d 764 (1988);
Mason v. State, 309 Md. 215, 219-220, 522 A.2d 1344 (1987);
Washington Sub. Sanit. Comm'n v. Riverdale Fire Co., 308 Md. 556,
560-61, 520 A.2d 1319 (1987).

 There is no clear language or manifest legislative intent that the

Act be applied retrospectively. Therefore, it should be applied only
prospectively. It does not follow, however, that the MVA would be
applying the Act retroactively if it were to consider convictions prior
to 1990 in determining the length of the disqualification for an offense
that occurs after 1990. To the contrary, we think the MVA's review

 4 "Serious traffic violation" means excessive speeding, reckless driving, a traffic

violation incurred as a result of a fatal accident, or any other violation determined to
be "serious" by the federal Secretary of Transportation. TR §16-803(h).

of the pre-1990 convictions is properly characterized as a prospective
application of the Act.

B. Subsequent Offender Statutes

On several occasions, the Court of Appeals has considered whether

a statute imposing heightened criminal penalties on a subsequent
offender operates retrospectively. Murray v. State, 236 Md. 375, 203
A.2d 908 (1964); Garrigan v. Superintendent, 218 Md. 662, 146 A.2d
431 (1958); Taylor v. Warden, 213 Md. 646, 131 A.2d 720 (1956).
All three of these cases dealt with persons convicted of violations of
Maryland's narcotics laws. The challenged law provided that a greater
penalty was to be imposed for a subsequent narcotics offense than
would be imposed for a first offense.

 In the leading case, Taylor v. Warden, the defendant argued that

the 1951 narcotics law under which he was sentenced as a subsequent
offender applied in an unconstitutional manner because the prior
offense that resulted in the enhanced punishment was for a 1945
violation of Pennsylvania's narcotics laws. The defendant argued that
he was, in effect, being punished for the first conviction that occurred
prior to the enhanced penalty statute in 1951. The Court of Appeals
disagreed, holding that "a statute imposing a greater punishment on a
previously convicted defendant does not create a new offense but only
an added penalty and is prospective in operation, not retrospective, and
is constitutional." 213 Md. at 648. Accord, Murray v. State, 236 Md.
at 380 ("a subsequent offender statute is prospective in operation, is not
retroactive, and is constitutional"). See also 57 Opinions of the
Attorney General 282 (1972).

The United States Supreme Court has adopted a similar

construction of "subsequent offender" statutes in its application of the
Constitution's Ex Post Facto and Due Process Clauses.5 In Gryger v.

 5 Article I, §9, clause 3 of the Constitution provides that "[n]o ... ex post facto

law shall be passed." While the proscription against ex post facto laws applies only
to laws that are criminal or penal in nature, the Court's rulings in this area are helpful
in viewing whether "subsequent offender" administrative proceedings violate a
licensee's right to due process. See United States v. Karnes, 437 F.2d 284, 289-90
(9th Cir. 1971) (ex post facto and due process analysis largely the same as to civil
disabilities). See also 2 Sutherland Statutory Construction §41.03, at 344
("[P]rotection from improper retroactivity has been included within the due process
clause.").

Burke, 334 U.S. 728 (1948), the Court upheld the sentencing of a
defendant to life imprisonment as a "habitual criminal" when one of the
four crimes that resulted in the sentence occurred before the state's
habitual criminal act was passed. The Court concluded that the
enhanced "penalty is for the latest crime, which is considered to be an
aggravated offense because a repetitive one." 334 U.S. at 732. The
consideration of the prior conviction did not make the habitual criminal
act invalidly retroactive. Id.6

In People v. Sweet, 254 Cal. Rptr. 567 (Cal. App. 1989), the

California Court of Appeals considered a new California statute that
increased the punishment for a drunk driving conviction when the
defendant committed a drunk driving offense within the seven years
prior to the most recent drunk driving conviction. The defendant
argued that it was unconstitutional for the court to consider any
conviction that occurred prior to the amendment to the enhanced
penalty statute. The court, citing Gryger, held that it is the present,
and not the prior, offense for which the defendant is sentenced and that
the "statute does not function retroactively 'merely because it draws
upon facts antecedent to its enactment for its operation.'" 254 Cal.
Rptr. at 570-71. See also State v. Haverluk, 432 N.W.2d 871, 873-74
(N.D. 1988); State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983).

C. Application to License Disqualification

While the cases discussed thus far deal with the constitutionality of

"subsequent offender" criminal laws, and while the Maryland courts
have not had the opportunity to determine whether the principles of
Taylor and Gryger would apply to a motor vehicle licensing
proceeding, other states have dealt with the issue of an agency
considering violations that occurred prior to the enactment of an
enhanced penalty statute. In Fowler v. State, 221 S.E.2d 9 (Ga. 1975)

 6 See also U.S. v. Karlin, 852 F.2d 968, 973-74 (7th Cir. 1988) (enhanced

penalty for possession of weapon by career criminal); Lawrence v. Jones, 837 F.2d
1572, 1574 (11th Cir. 1988) (Alabama habitual offender statute); Covington v.
Sullivan, 823 F.2d 37, 39 (2d Cir. 1987) (after the conviction of the predicate
offense, and the later amendment of the subsequent offender statute to include this
predicate offense, defendant is on notice that his future criminal conduct will subject
him to enhanced penalties); U.S. v. Sanchez, 684 F. Supp. 173, 174 (N.D. Ill. 1988)
(consideration of four convictions of armed robbery that occurred prior to sentence
enhancement provisions of the Armed Career Criminal Act does not violate ex post
facto clause).

a driver was disqualified from driving because he was an "habitual
violator." The driver argued that, because the law "permits him to be
declared a 'habitual violator' and bars him from operating a motor
vehicle upon the public highways because of offenses which occurred
prior to its adoption," it was an improper ex post facto law. 221
S.E.2d at 10. Citing Gryger, the Georgia Supreme Court rejected this
argument: "The increased penalty is for the latest crime, which is
considered to be an aggravated offense because a repetitive one ....
The statute imposes punishment on none but future crimes and is not
ex post facto." Id.

Similarly, in Ragland v. McNeill, 747 S.W.2d 701 (Mo. App.

1988), the Missouri Court of Appeals held that a driver's license was
properly revoked by the State because the driver was a repeat offender
of driving while intoxicated even though the first offense occurred in
1967, before the enactment of the enhanced penalty provision. The
court reasoned that the statute did not violate the proscription against
ex post facto laws since the licensee was being punished for "his latest
offense on the basis of a demonstrated propensity for misconduct."
747 S.W.2d at 702. See also Israel v. Cofer, 262 S.E.2d 545, 546
(Ga. App. 1979). Cf. Wilsch v. Bencar, 219 N.E.2d 311, 313 (Ohio
App. 1966).

We believe that Maryland courts would view the "subsequent

offender" provision of the Act in the same fashion as these courts
viewed comparable laws. Consideration by the MVA of pre-1990
convictions would not constitute a retrospective application of the Act.7

                                    III

                               Conclusion

In summary, it is our opinion that, in applying the provisions of the

Commercial Driver's License Act that disqualify a commercial driver
for a specified period of time predicated upon the commission of a

 7 The prior convictions to be considered under TR §16-812 are only convictions

committed in a commercial motor vehicle. Since the MVA's records of offenses
committed prior to January 1, 1990, do not indicate whether any offense was
committed in a commercial motor vehicle, inquiry into that element will be a
necessary part of a disqualification hearing.

prior offense, the Motor Vehicle Administration is to take account of
all relevant prior offenses, whether they occurred before or after the
effective date of the Act.

                                J. Joseph Curran, Jr.
                                Attorney General

                                Edward R.K. Hargadon
                                Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice