11.11.03.08

.08 Hearing.

A. Scheduling.

(1) A hearing shall be provided by the Administration within the time periods required in Transportation Article, §16-205.1, Annotated Code of Maryland.

(2) If the Administration cannot provide a hearing within the time periods required by Transportation Article, §16-205.1, and the suspension period has not begun by the time the hearing is provided, or the Administration stays the suspension under Regulation .04A(2), the Administration or administrative law judge may not dismiss the case.

(3) If the Administration cannot provide a hearing within the time periods required by Transportation Article, §16-205.1, and the suspension period has begun as a result of the Administration's delay or oversight, the case shall be dismissed.

B. Evidence.

(1) Each hearing shall be conducted in accordance with State Government Article, §§10-201—10-214, and Transportation Article, §§12-201—12-208, Annotated Code of Maryland.

(2) Certified copies of medical records of a medical laboratory containing results of a blood test for the alcohol concentration of the licensee shall be admitted at the hearing without the necessity of the personal appearance by the custodian of the records or any other employee of the facility which administered the test.

(3) The administrative law judge, on the administrative law judge's own motion or upon request of a party, may allow the testimony of any nonparty witness to be taken by telephone with the consent of all parties. When testimony is taken by telephone, the administrative law judge shall employ appropriate techniques to ensure that the testimony is fully audible to all parties present at the hearing and the testimony is made a part of the hearing record. The parties shall be allowed to fully cross-examine any witness whose testimony is taken using this procedure.

(4) If the administrative law judge determines that the testimony of a witness adverse to the licensee may materially assist with making an informed decision on a genuine issue of fact in the case, the administrative law judge may either take the testimony of that adverse witness pursuant to §B(3) or may require the attendance at the hearing of that adverse witness.

(5) For the purpose of determining the accuracy of the test result indicating the alcohol concentration of the licensee, the breath testing instrument shall conform to the requirements set forth in COMAR 10.35.02.08.B(2).

(6) There shall be a rebuttable presumption that the test result of a test of blood or breath indicating the alcohol concentration of the licensee is accurate.

(7) The reliability of breath testing instruments approved in §B(5) of this regulation and the presumption established in §B(6) of this regulation may not preclude a licensee from demonstrating that the specific breath testing instrument used to test the alcohol concentration of the licensee was malfunctioning at the time of testing, or that human error caused the test result to be inaccurate.

C. Record of Hearing. The administrative law judge shall maintain a record of the hearing which shall include all physical evidence submitted by the parties and the mechanical recording of the oral proceedings before the administrative law judge.