Colorado DUI Laws – DMV Breath – Blood Test Refusal Issues Analyzed – Express Consent Law 42-4-1301.1 – One of the most devastating impacts of A Colorado DUI case is the loss of your driver’s license. The Colorado requirement to take “the test” is called the express consent law. This article analyzes a refusal to take the blood or breath test in this state using a Q and A format.
Colorado’s Express Consent Law § 42-4-1301.1 (follow this LINK to read the entire law).
This law. the Colorado Express Consent Law, used to be called the Colorado Implied Consent Law and you may see a version of the law on the internet described with that name. In either case the law governs a very significant stage in a Colorado DUI case.
A simple rule – under Colorado’s Express Consent Statute, when a police officer with probable cause requests and directs a driver to take a blood or breath test, the driver is required to take, complete, and cooperate in the completion of the test. Section 42-4-1301.1(2)(a)(I), C.R.S.
If the driver “fails to take and complete, and to cooperate in the completing of, the test elected, the failure shall be deemed to be a refusal to submit to testing.” Section 42-4-1301.1(2)(a)(II).
If you are cited for refusing to take the test and you have requested a hearing (see below) the hearing officer’s finding on the refusal issue must be based on an application of the proper objective legal standards and a fair resolution of sometimes conflicting inferences from the evidence presented at your hearing.
While most police officers will politely explain to you there is no right to consult a lawyer before deciding to take, or not take the test – or to decide which test to take, – they do not have to do so – the request to speak to an attorney before taking a chemical test is deemed a refusal as a matter of law. Typically the police will use a form that contains the advisement in writing, but they may also advise you orally from a card or from memory.
Once again, because this is a difficult pill to swallow, non-cooperative conduct in taking a test such as demanding the right to first speak to a lawyer is tantamount to a refusal. A person has no right to speak to an attorney before taking a chemical test. Insisting on the right to speak to an attorney constitutes a refusal.
All refusal hearings are conducted by Department of Revenue hearing officers. These officers are not connected with the Motor Vehicle Division. The hearing officers make the decisions about whether revocations are imposed, the length and terms of suspensions, and whether the State of Colorado has or has not met it’s burden of proof is made by administrative law judges who are not – in my opinion – in the pocket of anyone.
The distinction between what happens in Court (the criminal side of DUI’s) and what happens at the DMV (the civil-administrative side of DUI cases) is critical to understand as they are often conflated.
Driver’s license sanctions, such as refusal revocations that can be imposed by DMV act independently of the criminal of the case which occurs in court. Both sides of the DUI case must be understood to fully comprehend the full impact of a DUI charge in Colorado.
A Colorado driver is required to submit to a chemical test if a police officer has probable cause to believe that driver is operating a vehicle while his or her ability to operate the vehicle is affected by the use of alcohol or drugs. (C.R.S. § 42-4-1301.1(2)(a)(I)). Probable cause can apply to the belief that a driver is even just slightly impaired by alcohol, drugs, or a combination of both. If the facts sustain this belief by a preponderance of the evidence, the driver must submit to a test or tests of his or her blood, breath, saliva, or urine. C.R.S. §§42-4-1301.1(2)(a)(I) and (b)(I).
3) A refusal by the driver to take, complete, or cooperate in the completion of properly administered tests of his or her blood, breath, saliva, or urine such that the samples could be obtained within two hours of the time of driving, (C.R.S. §§ 42-2-126(2)(h) and 42-4-1301.1(2)(a)(III) and (2)(a.5)(III)).
1. A police officer with probable cause to arrest based on suspicion of DUI – DWAI – or DUID (drugs) makes that arrest. The driver, after being advised of the Colorado Express Consent Law, (LINK) refuses to take either a blood or a breath test.
2. The law then requires the arresting officer (under C.R.S. § 42-2-126(5)(b)(II)) to act as the agent of the DMV and to take immediate possession of the person’s license and that is true whether that license is issued by Colorado or another state.
3. The officer then serves the driver with an Affidavit and Notice of Revocation stating the probable cause to believe that the license should be revoked. (C.R.S. §§ 42-2-126(5)(a) and (b)(I)).
4. A copy of the affidavit, along with any supporting reports in existence at the time to include the affidavit for warrantless arrest, the results of roadside sobriety tests (if any), and all other documents are then sent to the DMV. (C.R.S. § 42-2-126(5)(b)(III)).
5. If the in or out of state driver’ license confiscated by the officer is a valid driver’s license, the officer will issue a temporary permit allowing the person to drive for seven days. (C.R.S. § 42-2-126(5)(b)(II)). This permit is attached to a document called the Affidavit and Notice of Revocation.
6. The driver must contact the DMV in person or in writing to request a hearing concerning the revocation WITHIN THE 7 DAYS. If the refusal hearing is not requested within those 7 days, the revocation automatically takes effect on the eighth day. (C.R.S. § 42-2-126 (7)(b)).
Colorado “Refusal” DMV Revocation Cases – What Exactly IS A Refusal?
“Refusals” can take many forms in a Colorado DUI blood alcohol “test” refusal context. There is the obvious outright spoken refusal to take the test. Then there is the failure to cooperate with the taking of the test refusal such as refusing to sign the proper forms. Another type of failure to cooperate refusal is intentionally not “blowing” hard enough into the intoxilyzer machine. Yet another is the no decision refusal, the repeatedly changing one’s mind between a blood and breath test and the silence in response to the question refusal…. etc. etc.
All of these “forms of refusal” turn on a specific failure to cooperate in one form of another. Essentially the Express Consent Statute requires that the driver cooperate with the officer while the officer remains engaged in requesting or directing the completion of the test.
What if you “recant” (reverse) the decision to NOT take the test. A recent Colorado case – the Gallion case – answers this question.
Although Colorado law permits a “recantation” – in this case – the Court found that the arresting officer had already returned to duty, and somewhere between 75 and 80 minutes had passed since the driver was driving. The Court held that her recantation was not timely as Gallion did not recant her refusal until after the arresting officer left the detention facility and resumed his duties.
To be valid, a recantation must be made to the arresting officer or law enforcement officer with probable cause to believe the driver was violating the law, and must also be made within sufficient time to obtain a blood or breath sample within two hours of the person’s driving. Gallion v. Colorado Department of Revenue, 171 P.3d 217 (Colo. 2007).
The Supreme Court in Gallion made clear that a request to take a test following an initial refusal must take place at a time when the police remain “engaged in the process of requesting and directing the completion of a test.” Thus, in a situation where the officer had left the police station and returned to patrol, a request to be tested at that time was deemed invalid.
In a “timely recantation” – what type of testing should occur after a recantation?
The driver in Bradt, chose a blood test, but then refused to cooperate with the blood test procedure. About 20 minutes later, after the phlebotomist left, the Bradt told the arresting officer that she would take “a” test because she did not want her license to be revoked.
The officer told her he would not call the phlebotomist back, but that he would allow her to take a breath test and would not hold her previous refusal against her. The results were over the time limit, and the DMV revoked her license, holding that she had given up the right to a blood test by initially refusing the test.
An individual may change his mind after an initial refusal and decide to take a test, but the arresting officer must still be present and the burden is then on the individual to show that the test result would not have been materially affected by the delay.
TIMELY cooperation is the key. If the police officer has requested the test and has reasonably determined that the driver is refusing testing and if that officer has completed his duties prescribed by statute to deal with a refusal, and left the presence of the driver, the critical time period during which the driver must show TIMELY cooperation has probably come to an end.
Cases in this area are very fact specific….whether a driver “cooperated” in the taking of the test and in the recantation of the refusal to take the test – will always turn on the driver’s statements and behavior indicating a willingness or unwillingness to take the test and precisely when those statements occurred.
The Colorado General Assembly has removed any discretion an arresting officer has concerning an arrested driver’s desire to change the type of chemical test he or she wishes to take. Once a person has made a decision regarding which test to take, the arresting officer is not authorized to allow the person to change his or her mind and take a different test.
(II) Except as otherwise provided in paragraph (a.5) (extraordinary circumstances – see below) of this subsection (2), if a person elects either a blood test or a breath test, the person shall not be permitted to change the election, and, if the person fails to take and complete, and to cooperate in the completing of, the test elected, the failure shall be deemed to be a refusal to submit to testing.
If the person is unable to take, or to complete, or to cooperate in the completing of a breath test because of injuries, illness, disease, physical infirmity, or physical incapacity, or if the person is receiving medical treatment at a location at which a breath testing instrument certified by the department of public health and environment is not available, the test shall be of the person’s blood.
The two types of chemical sobriety tests offered to drivers on Colorado’s highways are a function of statute. You must select one type of test from the two alternatives.
In the nature of things- the right to take a test (to show you are NOT intoxicated or otherwise impaired) – when you WANT ONE – must be honored as well unless there is good cause for the unavailability of the choice made by the driver, or the driver is medically unable to make a selection. The general rule is a law enforcement officer must honor the choice made by the driver.
If the police officer unreasonably fails to honor the driver’s choice, the remedy is dismissal. Blood alcohol testing can establish innocence as well as guilt. The law that can be used as a sword can also operate as a shield.
Only under extraordinary circumstances can the sanction of dismissal for refusing to honor the driver’s choice of test be avoided.
What then are extraordinary circumstances?
“Extraordinary circumstances” are clearly defined in the following three sections at C.R.S. § 42-4-1301.1(2)(a.5)(IV). (A) As used in this paragraph (a.5), “extraordinary circumstances” means circumstances beyond the control of, and not created by, the law enforcement officer who requests and directs a person to take a blood or breath test in accordance with this subsection (2) or the law enforcement authority with whom the officer is employed.
The burden of proving extraordinary circumstances for noncompliance with the requirements of the express consent lies with the prosecution.
What If Blood Test Personnel Do Not Show Up To Take My Blood – Can That Be Held Against Me?
The case that answers the above question is People v. Null, 233 P.3d 670 (Colo. 2010). Null stands for the rule that the mere showing that medical personnel failed to respond to conduct the blood draw is NOT sufficient when there was no showing that that failure to respond was not caused by extraordinary or non-routine circumstances.
Putt differently, just showing that medical personnel were not available to perform a blood draw without showing the extraordinary circumstances that prevented a timely response existed is ….is insufficient at law. The State must show the failure was caused by extraordinary circumstances.
What If I Am Taken To A Hospital For Medical Reasons And I Want A Breath – Not A Blood – Test?
C.R.S. Section 42-4-1301.1(2)(a)(II), provides that a breath test need not be offered if the driver is medically unable such as in an accident to take a breath test or if the person is receiving medical treatment at a location where a breath-testing instrument is not available.
If the “two-hour time limit” would expire before a Defendant can be taken to a facility that had breath testing equipment, in such a circumstance, a police officer is not required, pursuant to C.R.S. § 42-4-1301.1(2)(a)(II) to offer or comply with a request for a breath test.
What If It “Appears” As If You Are Refusing To Provide A Sufficient Breath Sample?
There are times when the person blowing into the intoxilyzer cannot or will not provide a sufficient sample. This is a complex situation.
Colorado law, as unfair as this may sound, provides that if the instrument indicates an insufficient sample, that evidence may be admitted as evidence of refusal at trial IF the District Attorney can prove through an expert that the failure to blow was for the purpose of refusing to complete the test.
If that evidentiary “foundation” can be laid – the evidence of an insufficient sample can be admitted at trial. An instrument printout that reads “insufficient sample” means there was an inadequate quantity of breath to accurately and reliably measure the breath alcohol content. If the instrument itself so indicates, it is clear that regardless of the fact that various readings may have appeared on the display during the test, there was an insufficient amount to yield a reliable result.
At the trial of a DUI in Colorado – if there was a refusal to take the test, evidence of the Defendant’s refusal to cooperate in testing, and the totality of circumstances surrounding that refusal, are admissible as evidence of guilt.
There is no federal or state constitutional right to refuse to submit to a chemical test for blood alcohol content. Due process of law is not violated by admitting evidence of a Defendant’s refusal to take a chemical test when the Defendant was advised there would be adverse consequences of refusal.
A DUI Defendants does not have the right to assert self-incrimination or a violation of their right to due process if the Defendant was advised that their refusal to take the test would lead to a revocation of their licenses.
The Courts have held that a refusal to take the test is not “testimonial in nature” and therefore does not violate the privilege against self-incrimination.
If a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in section 42-4-1301.1 and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to take or to complete, or to cooperate with the completing of, any test or tests.
You are instructed that any person who drives any motor vehicle in the State of Colorado may be required to submit to a chemical test for the purpose of determining the alcoholic content of his or her [breath] [blood]. If a person refuses to submit to such chemical test, then the jury may consider such refusal along with all other competent evidence in determining the defendant’s guilt or innocence.
If you find that the defendant refused to take a chemical test of the defendant’s blood or breath, you may consider this refusal along with other evidence in determining whether the defendant is guilty of the offense of Driving a Vehicle Under the Influence or Driving a Vehicle While Ability Impaired.
The Trial Court may or may not need to amend this instruction by telling the jury that it is the driver’s external manifestations of unwillingness or outright refusal to take a chemical test for alcohol that are relevant in determining whether the driver refused to take a chemical test.
What If I Decide To Just Remain Silent? – Doesn’t My Decision To Remain Silent Mean That My Silence Can’t Be Used Against Me At Trial Under The Fifth Amendment?
So, a driver who responds “whichever” when asked his preference in testing is “deemed” to have refused a test and a driver who refuses to answer when asked whether he would prefer a breath or blood test is also “deemed” to have refused.
To review: C.R.S. Section 42-4-1301.1(2)(a.5)(I)….provides that the accused has the right to receive the type of test he or she chooses unless the officer determines there are extraordinary circumstances that prevent the completion of the test elected by the accused within two hours.
When the medical personell tasked with taking blood fail to show up – that works to the disadvantage of the Government’s case – not your case.
The extraordinary circumstances exception also does not extend to situations where medical personnel refuse to perform the requested blood test and that this even if their refusal is outside law enforcement’s control.
The prosecution must show that a “non-routine” circumstances prevented medical personnel from responding to law enforcement’s requests to fall under the exceptional circumstances rule.
If the police advise a driver of their Miranda rights, including the right to consult with an attorney. and the the driver thereafter refuses to sign a consent form or otherwise refuses to take a test, and asks to speak with an attorney, that is NOT deemed a refusal.
As a result a new rule emerged. If the police cause a driver to misunderstand the state of the law, the driver “cannot be held strictly accountable for his refusal” of testing.
A recent Colorado case distinguished Calvert where the police officer said “okay” to a driver’s statement that he wanted to speak to an attorney before choosing any test.
The Court found that the response of “ok” could simply have meant that the officer was acknowledging that the driver had made the statement and there was not other evidence to sho that the driver was, in fact, confused or misled.
A driver’s assertion that he or she wants to speak with an attorney before deciding to take a test does not, standing alone, necessarily demonstrate the driver is confused or require affirmative action or clarification by police. Such a result would be inconsistent with the decisions holding that this conduct is generally deemed a refusal as a matter of law.
If you are too injured or ill to consent to a test – the District Attorney can get your medical records C.R.S.
Section 42-4-1301(8) provides that a person who is dead or unconscious may be tested without consent.
§ 42-4-1301.1(8). Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of the person’s blood or any drug content within such person’s system as provided in this section. If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person’s life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva that was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider that shows the alcohol or drug content of the person’s blood, urine, or saliva or any drug content within the person’s system.
That subsection also provides that if a person is unable to give consent for a chemical test, or if a test is not conducted because the administration of that test would endanger the defendant’s life, the prosecution may nevertheless obtain access to any analysis or result of a test obtained by a health care provider. The statute essentially abrogates – removes – the physician patient privilege with respect to such analysis!
This law may shock you. Because privileges such as doctor- patient are not constitutional rights (and are recognized as creatures of statute and not constitutional mandate), a state may constitutionally limit the application of that privilege.
However, blood tests usually involve an additional type of cooperation and that is the requirement of the signing of a release form that releases the person drawing the blood from certain types of liability.
A driver’s refusal to sign the hospital’s release form amounts to a refusal and justifies the revocation of the driver’s license under the law and it does not matter who “authored” the form used. The driver who selects a blood test must sign the form under C.R.S. § 42-4-1202(3)(a)(IV).
A Defendant who chooses a blood test must sign consent and release forms, and a failure to do so may be deemed a refusal to cooperate. C.R.S. § 42-4-1301.1(3).
Section 42-2-126(9)(b), C.R.S. governs the “judicial review” (the appeal) of the DMV’s driver’s license revocation orders.
(4) Made a determination that is unsupported by the evidence in the record.
The resolution of any evidentiary conflicts.
When a law gives such massive deference to the Hearings Officer over factual matters…essentially placing them solely within the province of that Hearing Officer as the “trier of fact” – appealing their decision may make sense only when there is a mistake of law or procedure and not when the driver feels as if the Hearings Officer believed the “wrong person.” This decision should always be made with the assistance of a qualified and experienced Colorado appellate lawyer.
H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado DUI Laws – DMV Breath – Blood Test Refusal Issues Analyzed – Express Consent Law 42-4-1301.1.


(4) if such employee is employed in agriculture, not less than the minimum wage rate in effect under paragraph (1) after December 31, 1977.
Every employer shall pay to each of his employees (other than an employee to whom subsection (a)(5) 1 applies) who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, and who in such workweek is brought within the purview of this section by the amendments made to this chapter by the Fair Labor Standards Amendments of 1966, title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], or the Fair Labor Standards Amendments of 1974, wages at the following rate: Effective after December 31, 1977, not less than the minimum wage rate in effect under subsection (a)(1).
(4) As used in this subsection, the term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
(1) Notwithstanding the provisions of section 213 of this title (except subsections (a)(1) and (f) thereof), every employer providing any contract services (other than linen supply services) under a contract with the United States or any subcontract thereunder shall pay to each of his employees whose rate of pay is not governed by chapter 67 of title 41 or to whom subsection (a)(1) of this section is not applicable, wages at rates not less than the rates provided for in subsection (b) of this section.
(2) Notwithstanding the provisions of section 213 of this title (except subsections (a)(1) and (f) thereof) and the provisions of chapter 67 of title 41, every employer in an establishment providing linen supply services to the United States under a contract with the United States or any subcontract thereunder shall pay to each of his employees in such establishment wages at rates not less than those prescribed in subsection (b), except that if more than 50 per centum of the gross annual dollar volume of sales made or business done by such establishment is derived from providing such linen supply services under any such contracts or subcontracts, such employer shall pay to each of his employees in such establishment wages at rates not less than those prescribed in subsection (a)(1) of this section.
(1) In lieu of the rate prescribed by subsection (a)(1), any employer may pay any employee of such employer, during the first 90 consecutive calendar days after such employee is initially employed by such employer, a wage which is not less than $4.25 an hour.
(2) In lieu of the rate prescribed by subsection (a)(1), the Governor of Puerto Rico, subject to the approval of the Financial Oversight and Management Board established pursuant to section 2121 of title 48, may designate a time period not to exceed four years during which employers in Puerto Rico may pay employees who are initially employed after June 30, 2016, a wage which is not less than the wage described in paragraph (1). Notwithstanding the time period designated, such wage shall not continue in effect after such Board terminates in accordance with section 2149 of title 48.
(3) No employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in paragraph (1) or (2).
(4) Any employer who violates this subsection shall be considered to have violated section 215(a)(3) of this title.
(5) This subsection shall only apply to an employee who has not attained the age of 20 years, except in the case of the wage applicable in Puerto Rico, 25 years, until such time as the Board described in paragraph (2) terminates in accordance with section 2149 of title 48.
Subsection (a)(5), referred to in subsec. (b), was redesignated subsec. (a)(4) of this section by Pub. L. 110–28, title VIII, §8103(c)(1)(B), May 25, 2007, 121 Stat. 189.
The Fair Labor Standards Amendments of 1966, referred to in subsec. (b), is Pub. L. 89–601, Sept. 23, 1966, 80 Stat. 830. For complete classification of this Act to the Code, see Short Title of 1966 Amendment note set out under section 201 of this title and Tables.
The Education Amendments of 1972, referred to in subsec. (b), is Pub. L. 92–318, June 23, 1972, 86 Stat. 235. Title IX of the Act, known as the Patsy Takemoto Mink Equal Opportunity in Education Act, is classified principally to chapter 38 (§1681 et seq.) of Title 20, Education. For complete classification of title IX to the Code, see Short Title note set out under section 1681 of Title 20 and Tables.
The Fair Labor Standards Amendments of 1974, referred to in subsec. (b), is Pub. L. 93–259, Apr. 8, 1974, 88 Stat. 55. For complete classification of this Act to the Code, see Short Title of 1974 Amendment note set out under section 201 of this title and Tables.
The Social Security Act, referred to in subsec. (f)(1), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title II of such Act is classified generally to subchapter II (§401 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.
In subsec. (e)(1), "chapter 67 of title 41" substituted for "the Service Contract Act of 1965 (41 U.S.C. 351–357)" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (e)(2), "chapter 67 of title 41" substituted for "the Service Contract Act of 1965" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
"(2) No employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in paragraph (1).
"(3) Any employer who violates this subsection shall be considered to have violated section 215(a)(3) of this title.
"(4) This subsection shall only apply to an employee who has not attained the age of 20 years."
2007—Subsec. (a)(1). Pub. L. 110–28, §8102(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "except as otherwise provided in this section, not less than $4.25 an hour during the period ending on September 30, 1996, not less than $4.75 an hour during the year beginning on October 1, 1996, and not less than $5.15 an hour beginning September 1, 1997;".
Subsec. (a)(3) to (5). Pub. L. 110–28, §8103(c)(1)(B), redesignated pars. (4) and (5) as (3) and (4), respectively, and struck out former par. (3) which read as follows: "if such employee is employed in American Samoa, in lieu of the rate or rates provided by this subsection or subsection (b), not less than the applicable rate established by the Secretary of Labor in accordance with recommendations of a special industry committee or committees which he shall appoint pursuant to sections 205 and 208 of this title. The minimum wage rate thus established shall not exceed the rate prescribed in paragraph (1) of this subsection;".
1996—Subsec. (a)(1). Pub. L. 104–188, §2104(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "except as otherwise provided in this section, not less than $3.35 an hour during the period ending March 31, 1990, not less than $3.80 an hour during the year beginning April 1, 1990, and not less than $4.25 an hour after March 31, 1991;".
Subsec. (c). Pub. L. 104–188, §2104(c), struck out subsec. (c) which related to employees in Puerto Rico.
Subsec. (g). Pub. L. 104–188, §2105(c), added subsec. (g).
1989—Subsec. (a)(1). Pub. L. 101–157, §2, amended par. (1) generally. Prior to amendment, par. (1) read as follows: "not less than $2.65 an hour during the year beginning January 1, 1978, not less than $2.90 an hour during the year beginning January 1, 1979, not less than $3.10 an hour during the year beginning January 1, 1980, and not less than $3.35 an hour after December 31, 1980, except as otherwise provided in this section;".
Subsec. (a)(3). Pub. L. 101–157, §4(b)(1), substituted "pursuant to sections 205 and 208 of this title" for "in the same manner and pursuant to the same provisions as are applicable to the special industry committees provided for Puerto Rico and the Virgin Islands by this chapter as amended from time to time. Each such committee shall have the same powers and duties and shall apply the same standards with respect to the application of the provisions of this chapter to employees employed in American Samoa as pertain to special industry committees established under section 205 of this title with respect to employees employed in Puerto Rico or the Virgin Islands".
Subsec. (c). Pub. L. 101–157, §4(b)(2), amended subsec. (c) generally, substituting provisions relating to the application of wage rates under subsec. (a)(1) to employees in Puerto Rico for provisions relating to the superseding of subsec. (a)(1) wage rates by wage orders of a special industry committee for employees in Puerto Rico and the Virgin Islands.
Subsec. (f)(1). Pub. L. 101–239 substituted "209(a)(6)" for "209(g)".
1977—Subsec. (a)(1). Pub. L. 95–151, §2(a), substituted "not less than $2.65 an hour during the year beginning January 1, 1978, not less than $2.90 an hour during the year beginning January 1, 1979, not less than $3.10 an hour during the year beginning January 1, 1980, and not less than $3.35 an hour after December 1, 1980" for "not less than $2 an hour during the period ending December 31, 1974, not less than $2.10 an hour during the year beginning January 1, 1975, and not less than $2.30 an hour after December 31, 1975".
Subsec. (a)(5). Pub. L. 95–151, §2(b), substituted provisions for a minimum wage rate of not less than the minimum wage rate in effect under par. (1) after Dec. 31, 1977, for provisions for a minimum wage rate of not less than $1.60 an hour during the period ending Dec. 31, 1974, $1.80 an hour during the year beginning Jan. 1, 1975, $2 an hour during the year beginning Jan. 1, 1976, $2.20 an hour during the year beginning Jan. 1, 1977, and $2.30 an hour after Dec. 31, 1977.
Subsec. (b). Pub. L. 95–151, §2(c), substituted provisions for a minimum wage rate, effective after Dec. 31, 1977, of not less than the minimum wage rate in effect under subsec. (a)(1) of this section, for provisions for a minimum wage rate of not less than $1.90 an hour during the period ending Dec. 31, 1974, not less than $2 an hour during the year beginning Jan. 1, 1975, not less than $2.20 an hour during the year beginning Jan. 1, 1976, and not less than $2.30 an hour after Dec. 31, 1976.
Subsec. (c)(1). Pub. L. 95–151, §2(d)(2)(A), inserted "(A)" before "heretofore" and cl. (B), and substituted "subsection (a)(1)" for "subsections (a) and (b)".
Subsec. (c)(2). Pub. L. 95–151, §2(d)(1), added par. (2). Former par. (2), relating to applicability, etc., of wage rate orders effective on the effective date of the Fair Labor Standards Amendments of 1974, and effective on the first day of the second and each subsequent year after such date, was struck out.
Subsec. (c)(3). Pub. L. 95–151, §2(d)(1), (2)(B), (C), redesignated par. (5) as (3) and substituted references to subsec. (a)(1) of this section, for references to subsec. (a) or (b) of this section. Former par. (3), relating to appointment of a special industry committee for recommendations with respect to highest minimum wage rates for employees employed in Puerto Rico or the Virgin Islands subject to the amendments to this chapter by the Fair Labor Standards Amendments of 1974, was struck out.
Subsec. (c)(4). Pub. L. 95–151, §2(d)(1), (2)(B), (D), redesignated par. (6) as (4) and struck out "or (3)" after "(2)". Former par. (4), relating to wage rates of employees in Puerto Rico or the Virgin Islands subject to the former provisions of subsec. (c)(2)(A) or (3) of this section, was struck out.
Subsec. (c)(5), (6). Pub. L. 95–151, §2(d)(2)(B), redesignated pars. (5) and (6) as (3) and (4), respectively.
1974—Subsec. (a)(1). Pub. L. 93–259, §2, substituted "not less than $2 an hour during the period ending December 31, 1974, not less than $2.10 an hour during the year beginning January 1, 1975, and not less than $2.30 an hour after December 31, 1975" for "not less than $1.40 an hour during the first year from the effective date of the Fair Labor Standards Amendments of 1966 and not less than $1.60 an hour thereafter".
Subsec. (a)(5). Pub. L. 93–259, §4, substituted provisions for a minimum wage rate not less than: $1.60 an hour during period ending Dec. 31, 1974; $1.80, $2, and $2.20 an hour during years beginning Jan. 1, 1975, 1976, and 1977, respectively; and $2.30 an hour after Dec. 31, 1977 for former provisions for a minimum wage rate not less than $1 an hour during first year from the effective date of the Fair Labor Standards Amendments of 1966, not less than $1.15 an hour during second year from such date, and not less than $1.30 an hour thereafter.
Subsec. (b). Pub. L. 93–259, §3, inserted references to "title II of the Education Amendments of 1972" and "Fair Labor Standards Amendments of 1974" and substituted provisions for a minimum wage rate not less than $1.90 an hour during period ending Dec. 31, 1974; $2 and $2.20 an hour during years beginning Jan. 1, 1975, and 1976, respectively; and $2.30 an hour after Dec. 31, 1976 for former provisions for a minimum wage rate not less than: $1 an hour during first year from effective date of Fair Labor Standards Amendments of 1966; $1.15, $1.30, and $1.45 an hour during second, third, and fourth years from such date; and $1.60 an hour thereafter.
"(A) The rate or rates applicable under the most recent wage order issued by the Secretary prior to the effective date of the Fair Labor Standards Amendments of 1966, increased by 12 per centum, unless such rate or rates are superseded by the rate or rates prescribed in a wage order issued by the Secretary pursuant to the recommendations of a review committee appointed under paragraph (C). Such rate or rates shall become effective sixty days after the effective date of the Fair Labor Standards Amendments of 1966 or one year from the effective date of the most recent wage order applicable to such employee therefore issued by the Secretary pursuant to the recommendations of a special industry committee appointed under section 205 of this title, whichever is later.
"(B) Beginning one year after the applicable effective date under paragraph (A), not less than the rate or rates prescribed by paragraph (A), increased by an amount equal to 16 per centum of the rate or rates applicable under the most recent wage order issued by the Secretary prior to the effective date of the Fair Labor Standards Amendments of 1966, unless such rate or rates are superseded by the rate or rates prescribed in a wage order issued by the Secretary pursuant to the recommendations of a review committee appointed under paragraph (C).
"(C) Any employer, or group of employers, employing a majority of the employees in an industry in Puerto Rico or the Virgin Islands, may apply to the Secretary in writing for the appointment of a review committee to recommend the minimum rate or rates to be paid such employees in lieu of the rate or rates provided by paragraph (A) or (B). Any such application with respect to any rate or rates provided for under paragraph (A) shall be filed within sixty days following the enactment of the Fair Labor Standards Amendments of 1966 and any such application with respect to any rate or rates provided for under paragraph (B) shall be filed not more than one hundred and twenty days and not less than sixty days prior to the effective date of the applicable rate or rates under paragraph (B). The Secretary shall promptly consider such application and may appoint a review committee if he has reasonable cause to believe, on the basis of financial and other information contained in the application, that compliance with any applicable rate or rates prescribed by paragraph (A) or (B) will substantially curtail employment in such industry. The Secretary's decision upon any such application shall be final. Any wage order issued pursuant to the recommendations of a review committee appointed under this paragraph shall take effect on the applicable effective date provided in paragraph (A) or (B).
"(D) In the event a wage order has not been issued pursuant to the recommendation of a review committee prior to the applicable effective date under paragraph (A) or (B), the applicable percentage increase provided by any such paragraph shall take effect on the effective date prescribed therein, except with respect to the employees of an employer who filed an application under paragraph (C) and who files with the Secretary an undertaking with a surety or sureties satisfactory to the Secretary for payment to his employees of an amount sufficient to compensate such employees for the difference between the wages they actually receive and the wages to which they are entitled under this subsection. The Secretary shall be empowered to enforce such undertaking and any sums recovered by him shall be held on a special deposit account and shall be paid, on order of the Secretary, directly to the employee or employees affected. Any such sum not paid to an employee because of inability to do so within a period of three years shall be covered into the Treasury of the United States as miscellaneous receipts.
"(3) In the case of any such employee to whom subsection (a)(5) or subsection (b) would otherwise apply, the Secretary shall within sixty days after the effective date of the Fair Labor Standards Amendments of 1966 appoint a special industry committee in accordance with section 205 of this title to recommend the highest minimum wage rate or rates in accordance with the standards prescribed by section 208 of this title, but not in excess of the applicable rate provided by subsection (a)(5) or subsection (b), to be applicable to such employee in lieu of the rate or rates prescribed by subsection (a)(5) or subsection (b), as the case may be. The rate or rates recommended by the special industry committee shall be effective with respect to such employee upon the effective date of the wage order issued pursuant to such recommendation but not before sixty days after the effective date of the Fair Labor Standards Amendments of 1966.
"(4) The provisions of sections 205 and 208 of this title, relating to special industry committees, shall be applicable to review committees appointed under this subsection. The appointment of a review committee shall be in addition to and not in lieu of any special industry committee required to be appointed pursuant to the provisions of subsection (a) of section 208 of this title, except that no special industry committee shall hold any hearing within one year after a minimum wage rate or rates for such industry shall have been recommended to the Secretary by a review committee to be paid in lieu of the rate or rates provided for under paragraph (A) or (B). The minimum wage rate or rates prescribed by this subsection shall be in effect only for so long as and insofar as such minimum wage rate or rates have not been superseded by a wage order fixing a higher minimum wage rate or rates (but not in excess of the applicable rate prescribed in subsection (a) or subsection (b)) hereafter issued by the Secretary pursuant to the recommendation of a special industry committee."
Subsec. (f). Pub. L. 93–259, §7(b)(1), added subsec. (f).
1966—Subsec. (a). Pub. L. 89–601, §301(a), inserted ", or is employed in an enterprise engaged in commerce or in the production of goods for commerce," in opening provisions.
Subsec. (a)(1). Pub. L. 89–601, §301(a), raised minimum wage to not less than $1.40 an hour during first year from the effective date of the Fair Labor Standards Amendments of 1966, and not less than $1.60 thereafter, except as otherwise provided in this section.
Subsec. (a)(4). Pub. L. 89–601, §301(b), added par. (4).
Subsec. (a)(5). Pub. L. 89–601, §302, added par. (5).
Subsec. (b). Pub. L. 89–601, §303, substituted provisions for a minimum wage for employees covered for first time by the Fair Labor Standards Amendments of 1966 (other than newly covered agricultural employees) at not less than $1 an hour during first year from the effective date of the 1966 amendments, not less than $1.15 an hour during second year from such date, not less than $1.30 an hour during third year from such date, not less than $1.45 an hour during fourth year from such date, and not less than $1.60 an hour thereafter, for provisions setting a timetable for increases in the minimum wage of employees first covered by the Fair Labor Standards Amendments of 1961.
Subsec. (c). Pub. L. 89–601, §304, provided for a percentage minimum wage increase for employees in Puerto Rico and the Virgin Islands who are covered by wage orders already in effect as the equivalent of the percentage increase on the mainland, provided for minimum wages for employees brought within coverage of this chapter for the first time by the Fair Labor Standards Amendments of 1966 at rates to be set by special industry committees so as to reach as rapidly as is economically feasible without substantially curtailing employment the objectives of the minimum wage prescribed for mainland employees, and eliminated the review committees that has been established by the Fair Labor Standards Amendments of 1961.
Subsec. (e). Pub. L. 89–601, §305, added subsec. (e).
1963—Subsec. (d). Pub. L. 88–38 added subsec. (d).
1961—Subsec. (a). Pub. L. 87–30, §5(a)(1), inserted "in any workweek" in opening provisions.
Subsec. (a)(1). Pub. L. 87–30, §5(a)(2), increased minimum wage from not less than $1 an hour to not less than $1.15 an hour during first two years from the effective date of the Fair Labor Standards Amendments of 1961, and not less than $1.25 an hour thereafter.
Subsec. (a)(3). Pub. L. 87–30, §5(a)(3), inserted "in lieu of the rate or rates provided by this subsection or subsection (b)" and "as amended from time to time" and struck out "now" before "applicable to".
Subsec. (b). Pub. L. 87–30, §5(b), added subsec. (b). Former subsec. (b) had provided that "This section shall take effect upon the expiration of one hundred and twenty days from June 25, 1938."
Subsec. (c). Pub. L. 87–30, §5(c), added subsec. (c). Former subsec. (c) had provided for wage orders recommended by special industrial committees and covering employees in Puerto Rico and the Virgin Islands to supersede minimum wages of $1 an hour and for continuance of wage orders in effect prior to effective date of this chapter until superseded by wage orders recommended by the special industrial committees.
1956—Subsec. (a)(3). Act Aug. 8, 1956, added par. (3).
1955—Subsec. (a)(1). Act Aug. 12, 1955, increased minimum wage from not less than 75 cents an hour to not less than $1 an hour.
1949—Subsec. (a). Act Oct. 26, 1949, §6(a), (b), struck out subpars. (1), (2), (3), and (4), inserted subpar. (1) fixing the minimum wage rate at not less than 75 cents an hour, and redesignated subpar. (5) as (2).
Subsec. (c). Act Oct. 26, 1949, §6(c), continued existing minimum wage rates in Puerto Rico and the Virgin Islands until superseded by special industry committee wage orders.
1940—Subsec. (a)(5). Act June 26, 1940, added par. (5).
Pub. L. 114–61, §1(c), Oct. 7, 2015, 129 Stat. 546, provided that: "This Act [amending provisions set out as notes under this section], and the amendments made by this Act, shall take effect as of September 29, 2015."
Pub. L. 110–28, title VIII, §8102(b), May 25, 2007, 121 Stat. 188, provided that: "The amendment made by subsection (a) [amending this section] shall take effect 60 days after the date of enactment of this Act [May 25, 2007]."
Pub. L. 110–28, title VIII, §8103(c)(2), May 25, 2007, 121 Stat. 189, provided that: "The amendments made by this subsection [amending this section and repealing sections 205 and 208 of this title] shall take effect 60 days after the date of enactment of this Act [May 25, 2007]."
Amendment by Pub. L. 95–151 effective Jan. 1, 1978, see section 15(a) of Pub. L. 95–151, set out as a note under section 203 of this title.
Amendment by sections 2 to 4 and 7(b)(1) of Pub. L. 93–259 effective May 1, 1974, see section 29(a) of Pub. L. 93–259, set out as a note under section 202 of this title.
Pub. L. 93–259, §5(b), Apr. 8, 1974, 88 Stat. 56, provided that the amendment made by that section is effective Apr. 8, 1974.
Pub. L. 88–38, §4, June 10, 1963, 77 Stat. 57, provided that: "The amendments made by this Act [amending this section and enacting provisions set out below] shall take effect upon the expiration of one year from the date of its enactment [June 10, 1963]: Provided, That in the case of employees covered by a bona fide collective bargaining agreement in effect at least thirty days prior to the date of enactment of this Act [June 10, 1963], entered into by a labor organization as defined in section 6(d)(4) of the Fair Labor Standards Act of 1938, as amended [subsec. (d)(4) of this section], the amendments made by this Act shall take effect upon the termination of such collective bargaining agreement or upon the expiration of two years from the date of enactment of this Act [June 10, 1963], whichever shall first occur."
Act Aug. 12, 1955, ch. 867, §3, 69 Stat. 711, provided that the amendment made by section 3 is effective Mar. 1, 1956.
Functions relating to enforcement and administration of equal pay provisions vested by this section in Secretary of Labor and Administrator of Wage and Hour Division of Department of Labor transferred to Equal Employment Opportunity Commission by Reorg. Plan No. 1 of 1978, §1, 43 F.R. 19807, 92 Stat. 3781, set out in the Appendix to Title 5, Government Organization and Employees, effective Jan. 1, 1979, as provided by section 1–101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R. 1053.
"(a) In General.—Section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) shall apply to American Samoa and the Commonwealth of the Northern Mariana Islands.
"(B) increased by $0.40 an hour (or such lesser amount as may be necessary to equal the minimum wage under section 6(a)(1) of such Act), beginning on September 30, 2015, and on September 30 of every third year thereafter, until the minimum wage applicable to American Samoa under this paragraph is equal to the minimum wage set forth in such section."
"(a) Report.—The Government Accountability Office shall assess the impact of minimum wage increases that have occurred pursuant to section 8103 [of Pub. L. 110–28, amending this section, repealing sections 205 and 208 of this title, and enacting provisions set out as notes under this section], and not later than April 1, 2017, shall transmit to Congress a report of its findings. The Government Accountability Office shall submit a subsequent report not later than April 1, 2020.
"(b) Economic Information.—To provide sufficient economic data for the conduct of any report under subsection (a) the Bureau of the Census of the Department of Commerce shall include and separately report on American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands in its County Business Patterns data with the same regularity and to the same extent as each Bureau collects and reports such data for the 50 States. In the event that the inclusion of American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands in such surveys and data compilations requires time to structure and implement, the Bureau of the Census shall in the interim annually report the best available data that can feasibly be secured with respect to such territories. Such interim report shall describe the steps the Bureau will take to improve future data collection in the territories to achieve comparability with the data collected in the United States. The Bureau of the Census, together with the Department of the Interior, shall coordinate their efforts to achieve such improvements.
"(c) Report on Alternative Methods of Increasing the Minimum Wage in American Samoa.—Not later than 1 year after the date of enactment of 'An Act to amend the Fair Minimum Wage Act of 2007 to reduce a scheduled increase in the minimum wage applicable to American Samoa' [Pub. L. 114–61, approved Oct. 7, 2015], the Government Accountability Office shall transmit to Congress a report on alternative ways of increasing the minimum wage in American Samoa to keep pace with the cost of living in American Samoa and to eventually equal the minimum wage set forth in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))."
"(B) while such employee is engaged in on-the-job training for the period authorized by subsection (g)(1)(B)(ii).
"(B) beginning April 1, 1991, of not less than $3.35 an hour or 85 percent of the wage prescribed by section 6 of such Act, whichever is greater.
"(3) ends before April 1, 1993.
"(2) such employer has terminated the employment of any regular employee or otherwise reduced the number of employees with the intention of filling the vacancy so created by hiring an employee to be paid such wage.
"(1) Employee hours.—During any month in which employees are to be employed in an establishment under this section, the proportion of employee hours of employment to the total hours of employment of all employees in such establishment may not exceed a proportion equal to one-fourth of the total hours of employment of all employees in such establishment.
"(A) Prohibition.—No employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in subsection (a).
"(B) Disqualification.—If the Secretary determines that an employer has taken an action in violation of subparagraph (A), the Secretary shall issue an order disqualifying such employer from employing any individual at such wage.
"(e) Notice.—Each employer shall provide to any eligible employee who is to be paid the wage authorized by subsection (a) a written notice before the employee begins employment stating the requirements of this section and the remedies provided by subsection (f) for violations of this section. The Secretary shall provide to employers the text of the notice to be provided under this subsection.
"(f) Enforcement.—Any employer who violates this section shall be considered to have violated section 15(a)(3) of the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)). Sections 16 and 17 of such Act (29 U.S.C. 216 and 217) shall apply with respect to the violation.
"(iii) is eligible to be paid the wage authorized by subsection (a) as determined under subparagraph (B).
"(i) An employee shall initially be eligible to be paid the wage authorized by subsection (a) until the employee has been employed a cumulative total of 90 days at such wage.
"(ii) An employee who has been employed by an employer at the wage authorized by subsection (a) for the period authorized by clause (i) may be employed by any other employer for an additional 90 days if the employer meets the requirements of subsection (h).
"(iii) The total period, as authorized by clauses (i) and (ii), that an employee may be paid the wage authorized by subsection (a) may not exceed 180 days.
"(iv) For purposes of this subparagraph, the term 'employer' means with respect to an employee an employer who is required to withhold payroll taxes for such employee.
"(i) In general.—An individual is responsible for providing the requisite proof of previous period or periods of employment with other employers. An employer's good faith reliance on the proof presented to the employer by an individual shall constitute a complete defense to a charge that the employer has violated subsection (b)(2) with respect to such individual.
"(ii) Regulations.—The Secretary of Labor shall issue regulations defining the requisite proof required of an individual. Such regulations shall establish minimal requirements for requisite proof and may prescribe that an accurate list of the individual's employers and a statement of the dates and duration of employment with each employer constitute requisite proof.
"(2) On-the-job training.—The term 'on-the-job training' means training that is offered to an individual while employed in productive work that provides training, technical and other related skills, and personal skills that are essential to the full and adequate performance of such employment.
"(6) send to the Secretary on an annual basis a copy of such notice.
The Secretary shall make available to the public upon request notices provided to the Secretary by employers in accordance with paragraph (6).
"(4) the degree to which employers used the authority to pay such wage."
Certain public agencies not to be liable for violations of this section occurring before Apr. 15, 1986, with respect to services deemed by that agency to have been performed for it by an individual on a voluntary basis, see section 4(c) of Pub. L. 99–150, set out as a note under section 203 of this title.
Pursuant to section 503(c) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands with the United States of America, as set forth in Pub. L. 94–241, Mar. 24, 1976, 90 Stat. 263, set out as a note under section 1801 of Title 48, Territories and Insular Possessions, this section is inapplicable to the Northern Mariana Islands.
"(5) constitutes an unfair method of competition.
"(b) It is hereby declared to be the policy of this Act [amending this section, and enacting provisions set out as notes under this section], through exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct the conditions above referred to in such industries."
The term "Administrator" as meaning the Administrator of the Wage and Hour Division, see section 204 of this title.


Typically, a globe valve would be installed to regulate or throttle the flow through a pipeline system. Unlike the gate valve which achieves shut off by moving the disc across the flow; the globe valve achieves this by moving the disc against the flow stream. A globe valve flow pattern involves changes in direction which result in increased flow resistance and therefore a higher drop in pressure. Globe valves are excellent for use in on and off service, but they are better suited to regular cycling and control of fluids.
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Thinking about purchasing real estate that could be contaminated? Evaluate your liability under CERCLA before you sign on the dotted line.
CERCLA, or the Superfund Law, is the Comprehensive Environmental Response, Compensation, and Liability Act, a federal law that imposes strict liability for the release of hazardous waste. 42 U.S.C. § 9601 et. seq. CERCLA imposes strict liability on property owners, operators, transporters, and arrangers, so-called potentially responsible parties or PRPs. All PRPs are jointly and severally liable for the costs of cleaning up contamination under § 9607(B)(3). And, PRPs may sue other parties for contribution to the cost of clean-up under a separate provision. § 9713(f).
CERCLA liability is not air-tight, however. Amendments in 2002 created the bona fide prospective purchaser (BFPP) defense. § 9601(40); § 9607(r). BFPP status protects owners and operators from a §9607(B)(3) cause of action and reduces the possibility for contribution under §9713(f). A BFPP is one who acquires property after 2002 and can establish by a preponderance of the evidence that all disposal of the hazardous substance occurred before the person bought the property, that the person made all appropriate inquiry, complied with all notice provisions regarding a release, exercised appropriate care with respect to hazardous substances found on site, cooperated with and assisted in any response action, completed all institutional controls like land use restrictions or not impeding the effectiveness of response actions, complied with all information requests and subpoenas, is not a PRP, and does not have an affiliation with a PRP, including a contractual relationship. § 9601(40)(A-H).
All appropriate inquiry is key. Under the Environmental Protection Agency’s Final Rule adopted in 2005, “all appropriate inquiry” is when a buyer investigated the property via an adequate Phase I Environmental Site Assessment (“ESA”), and as a result, has no reason to know of a threatened release, took reasonable steps to stop any continuing release or to prevent a future release, and prevented any human, natural, or environmental exposure to previously released substances. See § 9601(40); 40 C.F.R. 312.21. A Phase I ESA has a lot of requirements. For example, the ESA must be completed by an environmental professional, must review historical sources including chain of title and land use records, interview past and present owners or operators, search for environmental clean-up liens, complete a visual inspection of the property, and review all federal, state, and local records regarding waste disposal, hazardous wastes, underground storage tanks, and spills or contaminations in the region.
Phase I ESAs do not include sampling. If the Phase I ESA reveals any recognized environmental conditions that indicate a likelihood of contamination, then the Buyer may choose to complete a Phase II ESA, which involves actual sampling of soil, air, or water. All ESAs are usually completed at the Buyer’s expense unless negotiated otherwise. If there is a history of contamination on the property, a Phase II is a good idea.
Redevelopment funding may also be available from the state or federal government if the property qualifies as a brownfield. A brownfield is any “real property, the expansion, redevelopment or use of complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant . . .” § 9601(39).
Lastly, make sure to check for state law that may also govern clean-up of the property. Many states have laws that mirror CERCLA, and state agencies could take the lead on enforcement.
In sum, just because property is contaminated doesn’t mean that you shouldn’t sign on the dotted line. Just make sure to do your homework first.


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Maryland, like most other states, has enacted a statutory scheme designed to protect the drivers on its roads from drivers who lack insurance. The law requires that all Maryland drivers have automobile insurance coverage, but, nevertheless, many drivers do not. Thus, Maryland requires a particular type of coverage known as Uninsured Motorist (“UM”) Coverage.
In Maryland, UM coverage applies to situations where (1) the at-fault driver has no liability insurance (“uninsured”), and (2) the at-fault driver has insufficient liability insurance limits to meet the amount of damages sought by the injured party (“underinsured”). The at-fault driver is considered to be underinsured if the at-fault driver’s insurance limits for bodily injury are lower than the limits of the injured party’s UM coverage. Waters v. United States Fidelity & Guaranty Co., 328 Md. 700 (1992).
Limit of insurer liability. – The limit of liability for an insurer that provides uninsured motorist coverage under this section is the amount of that coverage less the amount paid to the insured, that exhausts any applicable liability insurance policies, bonds, and securities, on behalf of any person that may be held liable for the bodily injury or death of the insured.
Md. Code Ann., Ins. s19-509(g).
Maryland case law supports the statutory definition: “The concept of ‘uninsured’ was broadened to include any vehicle insured with liability limits in an amount ‘less than the amount of coverage provided to the insured under [the uninsured motorist provision].'” Waters v. U.S. Fidelity & Guaranty Co., 328 Md. 700, 711 (1992).
UM coverage is mandatory in Maryland, and the Insurance Article of the Maryland Code lays out the basic requirements that insurers and policyholders must meet. Md. Code Ann., Ins. s19-509 defines an uninsured motor vehicle, states the amount of coverage that is required to be offered to the policyholder, and states the limit of liability of an UM insurer. A policyholder may waive UM coverage only if he/she executes a written waiver of that coverage. See Md. Code Ann., Ins. s19-510. It is important to note that a waiver only reduces UM coverage to the statutory minimum, and does not eliminate the coverage entirely. Id. Finally, settlement procedures for UM cases are set forth in Md. Code Ann., Ins. s19-511.
Uninsured motorist situations are relatively straight-forward. The at-fault motorist lacks liability insurance, so the only financial recourse for the injured person is the UM coverage under his/her own auto policy. The injured insured must then establish (via the claims process or a lawsuit if necessary) the liability of the uninsured tortfeasor, along with the amount of damages.
An underinsured motor vehicle is a motor vehicle or trailer for which the sum of all liability bonds or policies at the time of an “accident” provides at least the amounts specified by the Financial Responsibility Law of Maryland, but that sum is less than the limit of insurance of this coverage.
In Maryland, an insured who has been injured in an automobile accident may directly sue his or her UM carrier before suing the at-fault motorist. Reese v. State Farm Mutual Auto Insurance Co., 285 Md. 548, 554 (1979). Even if no action has been filed against the at-fault driver, the insured can properly file a breach of contract action against the insurer. Additionally, a plaintiff may properly decide to simultaneously bring a contract action against the UM insurer and a tort action against the at-fault driver. Id.
In Reese, the Court of Appeals held that an insured may recover from his or her UM carrier even if the insured has not secured a judgment against the tortfeasor. Id. As the Court explained, “we agree with the majority of our sister jurisdictions that an insured need not, as a condition for recovery against his insurer under the uninsured motorist endorsement, sue and obtain a judgment against the uninsured tortfeasor.” Id. at 554. See also Nationwide Mutual Insurance Co. v. Webb, 291 Md. 721, 736 (1981).
In general, Maryland courts have taken a broad view of the underinsured motorist statutes. As the Court of Special Appeals noted in Ohio Casualty Insurance Company v. Chamberlin, 172 Md. App. 229, 235 (2007):The uninsured motorist provision was enacted to protect innocent victims from irresponsible drivers who drive without insurance. It is liberally construed to ensure that innocent victims of motor vehicle accidents can be compensated for the injuries they suffer as a result of such accidents.
The uninsured motorist provision was enacted to protect innocent victims from irresponsible drivers who drive without insurance. It is liberally construed to ensure that innocent victims of motor vehicle accidents can be compensated for the injuries they suffer as a result of such accidents.
Even if not a named party in the suit, the UM insurer should monitor any case where the damages are substantial because it may be bound by any verdict/judgment above the at-fault drivers’ liability coverage. See Nationwide Mutual, 291 Md. at 738. A UM carrier is bound by the judgment rendered against the at-fault driver if it has sufficient notice of a lawsuit and the opportunity to intervene in it against the at-fault driver, but fails to do so. Id. at 743. By intervening in the litigation, the UM insurer is able to present all available liability and damages defenses, including both tort defenses and contract defenses. See Reese, 285 Md. at 555-56.
In this case, the at-fault motorist’s liability insurer tenders its policy limits to the injured insured. The injured insured then executes releases in favor of the liability insurer and the tortfeasor. Consequently, the injured insured may proceed with his or her claim against his or her own UIM carrier for damages over and above the tortfeasor’s policy limit. See Md. Code Ann., Ins. s19-511(e).
Importantly, if the UIM insurer chooses this option, it waives its subrogation rights against the tortfeasor. In addition, the Court of Appeals has recently determined that should a UM insurer consent to a settlement of the underlying tort suit, the insurer is also then prevented from contesting liability in an ensuing contract action against its own insured. In the case of Maurer v. Pennsylvania National Mutual Casualty Insurance Co., 404 Md. 60 (2007), a tortfeasor’s liability carrier offered its policy limits to the injured insured, and the UIM carrier consented, thereby waiving its subrogation rights against the tortfeasor. The UIM carrier then proceeded to trial against the injured insured, prevailing with a defense of assumption of the risk. Even though neither party addressed the issue on appeal, the Court raised the matter of liability defenses sua sponte. Specifically, the Court ruled, “Since Penn National consented to the settlement in this case, it should not have been allowed to contest the issues of tort liability.” Id. at 74. Clearly, this ruling has impacted the decision process for UIM carriers as they determine whether or not to consent to a settlement offer.
Under s19-511, a UIM insurer may also refuse to consent to an offer from the tortfeasor’s liability carrier to the injured insured. In that instance, a UIM insurer retains its right of subrogation against the tortfeasor. However, when the UIM insurer refuses to consent, it must tender the liability policy limits to the injured insured within thirty (30) days of its written refusal to consent.<em.SeeMd. Code Ann., Ins. s19-511(c).
When the UIM insurer chooses this option, it cannot recover the settlement funds it has tendered, even when a jury verdict in favor of the injured insured is for less than the amount tendered by the UIM insurer to its insured. In Ohio Casualty Insurance Company v. Chamberlin, 172 Md. App. 229 (2007), the injured insured was offered policy limits ($20,000) by Progressive Insurance Company, the liability carrier for the tortfeasor. Ohio Casualty, the UIM carrier, did not consent to settlement. As a result, it forwarded $20,000 to its injured insured.
The insured proceeded to trial with her suit against both the tortfeasor and Ohio Casualty. The jury returned a verdict in favor of the insured for $5,445.00. The liability carrier forwarded $5,445.00 to Ohio Casualty. At that point, Ohio Casualty issued a written demand to the insured instructing her to return the advanced $20,000 to the extent that it exceeded the amount of the jury verdict in her favor.
Thus, we hold that when a UIM chooses to thwart a proposed settlement between a plaintiff and an alleged tortfeasor by substituting payment of the settlement amount, it bears the risk that a jury might return a verdict in an amount less than the amount advanced or in favor of the defendant(s) and it is not entitled to a refund of any amount paid.
Clearly, the UM statute has been interpreted to offer strong protection to the insured, ensuring that he or she will be encouraged to settle, and compensated for any injuries.
Md. Code Ann., Ins. s27-1001 sets forth the process for filing a lack of good faith claim with the Maryland Insurance Administration (MIA). If both parties agree, the MIA filing can be waived, with the parties proceeding directly to Circuit Court pursuant to Md. Code Ann., Cts. & Jud. Proc. s3-1701. Otherwise, the insured files an MIA claim, including his or her specific allegations regarding lack of good faith, along with all documentation the insured has submitted to his or her insurer.
The MIA then forwards this complaint to the UM insurer, which has thirty (30) days to respond. The UM insurer files a response, and provides documentation to the MIA (generally, this documentation includes a redacted claims file). The MIA then conducts an in camera review and has ninety (90) days in which to issue its opinion.
If both sides to agree to waive the MIA procedure and go directly to circuit court, then full discovery is allowed, and a jury may be requested by either side. The fact finder must determine if there is coverage for the claim, and then whether or not the insurer failed to act in good faith.
 Notably, if the insured fails to follow settlement procedures as set forth in the statute and in the policy, the UIM insurer may be able to disclaim coverage for failure to cooperate, but the insurer must show “actual prejudice.” See Md. Code Ann., Ins. s19-110.

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