The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. Civil Action
Docket No. AP-23-12
CHLOE MONSEN,
Petitioner,
MEMORANDUM OF DECISION AND
Vv. ORDER ON RULE 80C APPEAL
STATE OF MAINE BUREAU OF
MOTOR VEHICLES,
Sue et Ne et et et et Neh te Nigga!
Respondent.
Petitioner, Chloe Monsen, appeals from the decision of the Maine Bureau
of Motor Vehicles (“BMV”) to suspend her license to operate a motor vehicle
following an administrative hearing on February 13, 2023. The Secretary of State
suspended Monsen’s license based on a report from the Brunswick Police
Department that Monsen had operated a motor vehicle with an excessive alcohol
level on October 22, 2022 and Monsen timely appealed that decision. At the
hearing the BMV took the testimony of Officer Michaud of the Brunswick Police
Department and Monsen.
The record establishes the following relevant background: on the evening
of October 22, 2022, Officer Paige Michaud of the Brunswick Police Department
was dispatched to the area of Portland Pie Co. located at 92 Maine Street for a
report of a female slumped over the wheel of a silver 2007 Toyota Rav4. (R. Tab
5, Brunswick Police Department Narrative for Patrol Officer Paige L. Michaud, at
1.) Officer Michaud arrived on the scene and located the vehicle parked in front
of the Gelato Fiasco with the lights of the vehicle ilhiaminated. (fd.) When Officer
Michaud approached the vehicle, she observed a female who appeared to be
unconscious in the driver seat. (Id.) When Officer Michaud knocked on the
window, the woman did not respond. (Id.) Officer Michaud opened the door and
the woman woke up when Officer Michaud touched her shoulder. (/d.} Officer
Michaud recognized a strong odor of intoxicating liquor coming from inside the
vehicle and she observed that the woman’s pupils were unusually large and
unresponsive to light and her eyes appeared glossy and red. (Id.)
Officer Michaud asked the woman what was going on and the woman just
looked at her. (id.) When asked her name, the woman mumbled that she did not
know. (Id.) Officer Michaud asked where she was coming from and the woman
said “Bath,” and when Officer Michaud asked where she was headed, she said
“home.” (Id.) Upon being asked for identification, the woman produced a Maine
license that identified her as Chloe Monsen. (id.)
Officer Michaud asked Monsen if there was a reason she was parked there
and she said no. (Id.) Monsen told Officer Michaud that she had dinner with her
. mother and got.dropped off in Bath before driving to the. parking spot..(id.) Upon... .
being asked how much she had to drink, Monsen stated she had two glasses of
wine. (Id.) Monsen reported that she did not have any alcohol in the vehicle with
her, she hadn’t had anything to drink since she had parked, and she had only
been parked for a few minutes. (/d.) Officer Michaud observed a “thick slur” in
Monsen’s speech. (Jd.)
Officer Michaud performed field sobriety tests and observed six clues of
intoxication on the horizontal gaze nystagmus test, seven clues on the walk and
turn test, and four clues on the one leg stand test. (Id. at 1-3.) Monsen was able
to recite the requested segment of the alphabet without singing correctly. (Id. at
3.) Officer Michaud then placed Monsen under arrest for Operating Under the
Influence. (/d.) Monsen resisted getting into the rear of the cruiser and had to be
placed there by multiple officers. (Id.) Monsen stated to the officers multiple times
that they could not tow her vehicle as she had to drive home. (Id.)
At the Brunswick Police Department, Officer Michaud checked Monsen’s
mouth for any cuts, blood or foreign objects but did not locate any. (ld. ) Monsen
then provided two breath samples that showed a blood alcohol content of 0.24
grams of alcohol per 210 liters of breath. (Id.) Monsen stated again at the station
that she needed her vehicle as she was on her way to go pick up her son. (Id.)
Officer Michaud’s testimony at the administrative hearing was consistent with
the narrative of her report.
At the administrative hearing, Monsen testified that on the evening of
October 22, 2022, she had been on a date at Little Tokyo in Brunswick and then
she and her date_went.to Bolos and that. she _had -a.glass - of wine at_each
establishment. (R. Tab 4, Administrative Hearing Transcript, at 9-12.) Monsen
testified that she believes she and her date were drugged with Rohypnol or some
sort of mind-altering drug and she maintains that she only had two glasses of
wine. (Id. at 8-9.) The hearing examiner allowed Monsen to read a written
statement from her date! that corroborates that she had two glasses of wine and
1 The hearing examiner explained to Monsen that she would likely accord less weight to the
written statement of her date because he was not present to be cross-examined at the hearing.
(R. Tab 4, Administrative Hearing Transcript, at 9. }
3
he had three light beers but they both became unusually intoxicated and he also
believes they were drugged that night. (/d. at 8-11.)
Monsen testified that after she and her date left Bolos she called her
mother to ask her for a ride. (id. at 11.) She further testified that her mother was
unable to pick her up because she was watching Monsen’s son, who was sleeping
at the time, but that her mother was going to call a friend to come pick her up.
(id. at 11-12. )E Her mother instructed her to turn her lights on to help the friend
identify the car. ([d.) Monsen testified that she. did not seek any medical
treatment for the drugging or report the incident to the police. (Id. at 13-14.)
Monsen stated that she believed her inability to recall her name was indicative
of someone who had’been drugged. (Id. at 15.) Monsen testified that she was
confused by the statements she made about having dinner with her mother and
being dropped off in Bath because they were not true and the only way she could
explain it was that she was not in her right mind. (Id. at 16.)
Monsen testified that she always has a ZYN nicotine pouch in her mouth
and that, after she left the station, she pulled one out from behind her wisdom
tooth. (Id. at 17.) She testified to her belief that she had the ZYN pouch in her
mouth during the breath test and that if would have affected the breathalyzer
result. Ud. at 17-18.) Monsen also argued at the hearing that the officer did not
report on seeing the keys in the ignition. (fd. at 12.)
In response, Officer Michaud testified that her breath content amount of
24 indicates a significant amount of alcohol, more than two glasses of wine, and
two glasses of wine combined with “roofies” would not produce such a result. (Id.
at 19.) Officer Michaud testified that she did perform a mouth check before
administering the test and did not find a ZYN pouch. (/d.) She further testified
that Monsen stated on multiple occasions during the encounter that she needed
to pick up her son, who was at his father’s house. (/d.)
The Maine Administrative Procedures Act (APA) and Maine Rule of Civil
Procedure 80C provide for appeals to Superior Court from decisions made by
state agencies. 5 M.R.S. §§ 11001-08. In Rule 80C appeals, the court examines
whether the decision was “in violation of constitutional or statutory provisions;"
"fiJn excess of the statutory authority of the agency;" "fmjade upon unlawful
procedure;" "[alffected by bias or error of law;" "fulnsupported by substantial
evidence on the whole record;" or "[alrbitrary or capricious or characterized by
abuse of discretion." 5 M.R.S. § 11007(4}(C}(1)-(6).-
Here, Monsen argues that the officer did not observe her keys in the
ignition and that the ZYN pouch affected the breath results. This argument
amounts to an attack on the evidence. 5 M.R.S, § 11007(4)(C)(5). "Upon review
_of.an agency's findings.of fact we_must examine the entire record .to determine_..
whether, on the basis of all the testimony and exhibits before it, the agency could
fairly and reasonably find the facts as it did." Doane v. HHS, 2021 ME 28, { 38,
250 A.3d 1101 (quoting Friends of Lincoln Lakes v, Bd. of Env't Prot., 2010 ME
18, | 13, 989 A.2d 1128). In conducting such a review, we "do[| not substitute
our] judgment for that of an agency and must affirm findings of fact if they are
supported by substantial evidence in the record.” Id. (quoting International Paper
Co. v. Board of Envtl. Protection, 1999 ME 135, { 29, 737 A.2d 1047).
A court will not reverse an agency decision merely in the face of
inconsistent evidence. Seider v. Bd. of Exam'rs of Psychologists, 2000 ME 206, {
9, 762 A.2d 551. “An administrative decision will be sustained if, on the basis of
the entire record before it, the agency could have fairly and reasonably found the
facts as it did." Stein v. Me. Crim. Justice Acad., 2014 ME 82, 7 11, 96 A.3d 612
(citing Seider v. Bd. of Exam'rs of Psychologists, 2000 ME 206, P 9, 762 A.2d
551). As the petitioner, Monsen bears the burden of proof to ‘demonstrate > that
no competent evidence supports the Bureau's decision. Id. -
Here, the decision of the Bureau by and through hearing officer Smith was
supported by competent evidence on the record. The factual findings were
supported by Officer Michaud’s testimony and report, and the breath alcohol test
report. Although Monsen testified that she did not drive and argues that the keys -.
were not found in the ignition, this testimony conflicts with what she told Officer
Michaud on the scene that she had just driven from Bath and had only been
parked for a few minutes. The hearing officer, as the fact finder, was entitled to
_give more.weight to Officer Michaud’s contemporaneous report.than to Monsen’s —_.
after-the-fact explanations. As to the presence of the ZYN pouch, the hearing
officer appears to have found Officer Michaud’s testimony more credible on this
point and even Monsen does not dispute that she was profoundly intoxicated on
the night of the arrest. This evidence supports a finding that Officer Michaud
had probable cause to believe Monsen had operated a vehicle under the influence
in violation of 29-A M.R.S. 2411, and that Monsen, in fact, had operated a vehicle
under the influence in violation of the same. Monsen does not carry her burden
of proof to show that no competent evidence supported the Bureau’s decision.
Accordingly it is hereby ordered and the entry is: “Appeal DENIED. The
decision by the Bureau of Motor Vehicles in this case is AFFIRMED.”
The clerk may enter this Memorandum of Decision and Order on Rule 80C
Appeal on the docket by reference pursuant to M.R. Civ. P. 79(a).
SO ORDERED
‘Dated: yuu m5 WIN a oH
Deborah P. Cashman
Justice, Superior Court
Entered onthe Hockek 07 | ig
Petitioner-Jason A MacLean, Esq.
Respondent-Donaid Macomber, AAG