Gen. 139] 139

 The Maryland Vehicle Law is codified in titles 11 through 27 of 1

the Transportation Article (“TR”) of the Annotated Code of Maryland.

 A new resident of Maryland may drive on a license issued in 2

another state during the first 60 days of residence in Maryland; a member

(continued...)

VEHICLE LAWS

LICENSING – IMMIGRATION RELATED DOCUMENTS MAY BE USED

AS PROOF OF IDENTITY OF APPLICANT FOR DRIVER’S

LICENSE; LAWFUL RESIDENCE IN THE UNITED STATES NOT

A CONDITION FOR ISSUANCE OF DRIVER’S LICENSE

September 12, 2003

The Honorable Ana Sol Gutiérrez

House of Delegates

You have asked for our opinion whether the Motor Vehicle

Administration (“MVA”) may require individuals who present

foreign identification as part of an application for a Maryland

driver’s license to produce documentation that they are legally

present in the United States as a condition of issuance of a license.

In our opinion, the MVA may require such individuals to

provide additional evidence of identification and may specify

immigration-related documents among the acceptable forms of

identification. However, the MVA may not deny a license to an

individual because he or she is unable to prove lawful presence in

this country.

I

Statutory Prerequisites for a Driver’s License

Under the Maryland Vehicle Law, an individual may not drive 1

or attempt to drive in Maryland unless the person holds a Maryland

driver’s license or is exempt from the licensing requirements of that

law. TR §16-101(a). Many of the exemptions encompass

individuals who have recently arrived in Maryland, who drive 2
140 [88 Op. Att’y

 (...continued) 2

of the armed forces who returns from foreign duty may drive for 30 days

without a Maryland license. TR §16-102(a)(6), (8). 

See TR §16-102(a)(3) (individuals driving farm tractors, dock 3

equipment, and similar vehicles); TR §16-102(a)(4) (individuals driving

mobile cranes).

See TR §16-102(a)(1)(federal employees driving on official 4

business); TR §16-102(a)(11) (members of the Maryland National Guard

driving military vehicles as part of their duties).

 There are also exemptions for members of Congress from other 5

states who temporarily reside in Maryland, and members of the armed

forces or Public Health Service who are licensed in their home states. See

TR §16-102(a)(2), (7); see also TR §16-102(a)(5) (students enrolled in

school in Maryland or a bordering state who have driving privileges in

their home states).

particular types of vehicles, or who drive vehicles for a particular 3

purpose. A number of the exemptions cover drivers who are 4

domiciled and licensed in other jurisdictions. For example, an

individual who resides in another state and has a valid driver’s

license from that state is not required to obtain a Maryland license.

TR §16-102(a)(9). Similarly, a person who resides outside the

United States and has a valid license from that country may drive in

Maryland without obtaining a Maryland license. TR §16-

102(a)(10). 

5

These provisions, in effect, make a Maryland driver’s license

a prerequisite to driving in Maryland for a Maryland resident and for

a non-resident who is not licensed elsewhere. While a person must

give a “Maryland residence address” in an application for a driver’s

license, TR §16-106(b)(1), the law does not require that a person be

a resident of the State to be licensed here if he or she is not licensed

elsewhere. 

In any event, the definition of Maryland “resident” in the

Maryland Vehicle Law does not include any reference to the

individual’s status under the federal immigration laws. See TR §11-

149. Rather, it sets forth several alternate tests: (1) the driver is

domiciled in Maryland – that is, that the individual lives in

Maryland and intends to stay; (2) he or she owns, leases, or rents a

primary residence in Maryland and has resided in the State for a
Gen. 139] 141

 The MVA has included among the permissible primary sources

6

of identification the following immigration-related documents: a valid

foreign passport, a certificate of U.S. citizenship, a certificate of

naturalization, an alien registration receipt card, an employment

authorization card or document, a temporary resident card, and a refugee’s

arrival/departure card. COMAR 11.17.09.04D(1)(k)-(r).

year, regardless of whether the individual intends to stay; (3) the

individual maintains a main or branch office or warehouse facility

in Maryland and bases and operates motor vehicles in the State; or

(4) the driver has filed as a Maryland resident for income tax

purposes. Id. Finally, while the law lists a variety of

disqualifications for licensure, the inability to show lawful presence

in the country is not one of them. TR §§16-103 and 16-103.1. Thus,

a driver need not prove that he or she is lawfully present in the

United States in order to be a resident of Maryland for purposes of

the Maryland Vehicle Law.

An application for a driver’s license is made on a form devised

by the MVA. TR §16-106(a). The application must include the

applicant’s full name, Maryland residence address, employer, race,

sex, height, weight, general physical condition, and date of birth,

whether the applicant has previously been refused a license to drive

and if so, in what state or country, whether the applicant has

previously been licensed to drive, and if so, in what state or country,

and “[a]ny other pertinent information that the Administration

requires.” TR §16-106(b). An applicant for a license must also

submit a “birth certificate or other proof of age and identity that is

satisfactory to the Administration.” TR §16-106(d). As part of the

application process, the MVA may request driving records from

another jurisdiction in which the person has been licensed to drive.

TR §16-106(e). 

The MVA has adopted regulations elaborating on the

requirement that an applicant provide proof of age and identity. See

COMAR 11.17.09. In general, applicants must provide both a birth

certificate and at least one other “primary source of identification.”

COMAR 11.17.09.04A(a). A foreign-born applicant must provide

two primary – or one primary and two secondary – sources of

identification. COMAR 11.17.09.04A(7). The regulations identify

21 “primary” sources of identification, including many immigrationrelated documents.

6
142 [88 Op. Att’y

See In the Matter of Heilig, 372 Md. 692, 697 n.2, 816 A.2d 68 7

(2003) (strongly suggesting that the MVA should not permit a gender

designation on a license that differs from the individual’s birth certificate

in light of the use of driver’s licenses as a form of identification).

 The Michigan AttorneyGeneral has reached a similar conclusion 8

with respect to Michigan law. 1995-96 Mich. Op. Atty. Gen. 120, 1995

WL 756150 (1995) (although Michigan law prohibited issuance of

licenses to “non-residents,” an illegal alien may establish residence in

Michigan and qualify for a license). By contrast, Georgia law explicitly

states that an individual does not qualify as a “resident” for purposes of its

vehicle law unless the person is a citizen or a lawful immigrant. See John

Doe1 v. Georgia Department of Public Safety, 147 F. Supp. 2d 1369 (N.D.

Ga. 2001); see also Lazos Vargas, Missouri, the “War on Terrorism,” and

Immigrants: Legal Challenges Post 9/11, 67 Mo. L.Rev. 775, 798-807

(2002) (discussing recent state developments on whether lack of legal

immigration status should disqualify an applicant for driver’s license).

II

Analysis

The Maryland Vehicle Law is designed to control motor

vehicle traffic on the streets and highways of Maryland. Byrd v.

State, 13 Md. App. 288, 293, 283 A.2d 9 (1971), cert. denied, 264

Md. 746 (1972). Although driver’s licenses are frequently used as

a form of identification, the primary purpose of the driver licensing 7

requirement is to allow the State some regulatory control over those

who operate motor vehicles to ensure driver competency and thereby

promote public safety. Ruggles v. State, 120 Md. 553, 561, 87 A.2d

1080 (1913). Proof of the driver’s lawful residence in Maryland

does not appear to be related to the latter purpose. Accordingly, the

Maryland Vehicle Law does not require that an applicant

demonstrate lawful residence in Maryland as a condition for the

issuance of a driver’s license.8

Nor does federal law preclude the issuance of a state driver’s

license to an undocumented immigrant. A 1996 amendment of the

Immigration and Nationality Act expressly bars a state from

providing grants, contracts, loans, professional licenses, commercial

licenses, or any retirement, welfare, health, disability, public or

assisted housing, postsecondary education, or food assistance

benefits to illegal aliens unless state law is expressly amended after

August 22, 1996 to provide such benefits. See 8 U.S.C. §1621(c)
Gen. 139] 143

 Lawful residence in the United States is effectively a prerequisite 9

for obtaining a commercial driver’s license (“CDL”). In particular, in

accordance with federal regulations and State law, an individual applying

for a CDL must ordinarily provide a social security number as part of the

application. See 49 CFR §383.153(d)(1); TR §16-810(b)(1). That

requirement does not applyto an applicant for a “non-resident CDL” – i.e.,

a license available to a driver domiciled in a foreign country that does not

issue its own CDL under certain minimum standards. 49 CFR

§383.183(d)(2); TR §16-817(d). 

and (d). Driver’s licenses are noticeably absent from this list.9

Instead, a federal law passed in the same session of Congress

permits the states to “conduct pilot programs to determine the

viability, advisability, and cost-effectiveness of the State’s denying

driver’s licenses to aliens who are not lawfully present in the United

States.” Pub. L. 104-208, Div. C, Title V, §502, 110 Stat. 3009-671

(September 30, 1996). Maryland has not adopted such a pilot

program. 

As noted above, an application for a driver’s license must

include “any other pertinent information” requested by the MVA.

In addition, the Maryland Vehicle Law authorizes the agency to

require submission of “proof of ... identity that is satisfactory to the

[MVA].” Thus, the Legislature has accorded the MVA some

discretion to determine what information must accompany an

application for a driver’s license and to investigate any prior license

held by the individual. 

Many immigration-related documents are issued only upon

submission of detailed information concerning the identity and

background of an individual. For example, to obtain permanent

resident status an individual must provide extensive biographical

information, be photographed and fingerprinted, and submit copies

of a birth certificate and passport, among other things. See Bureau

of Citizenship and Immigration Services Form 1-485 and

Instructions. Although lawful residence status is not a prerequisite

for a driver’s license, the MVA could determine that official

immigration-related documentation is helpful in establishing a

person’s identification and, when other satisfactory documentation

is unavailable, could require such information. However, an

applicant’s inability to prove lawful presence in the United States is

not itself grounds for denial of a license.
144 [88 Op. Att’y

III

Conclusion

In our opinion, the MVA may require an applicant for a

Maryland driver’s license who lacks a domestic birth certificate to

provide alternative forms of identification and may include

immigration-related documents among the acceptable forms of

identification. However, under the Maryland Vehicle Law, a

person’s inability to establish lawful presence in the United States is

not a basis for denying that person a driver’s license.

J. Joseph Curran, Jr.

Attorney General

Kathryn M. Rowe

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice

Editor’s Note:

The conclusions in this opinion may be affected by the State’s

implementation of the Real ID Act of 1005, Public Law (09-13,

Division B).