The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss CIVIL ACTION
DOCKET NO. AP 2003-7
AN PEA 1), /ae0%
LLOYD N. HUSSEY,
Petitioner st
v. DECISION AND
DER
.
STATE OF MAINE, PENQSSCOT COUNTY! DONALD: BL
DEPARTMENT OF SECRETARY: ) | Le oe
OF STATE, )
) DE 4 2003
Respondent )
This matter is before the Court on appeal pursuant to Rule 80C of the Maine
Rules of Civil Procedure from a Hearing Examiner’s decision affirming the decision of
the Department of the Secretary of State, Bureau of Motor Vehicles (herein, “Secretary
of State’’) to suspend the Petitioner’s, Lloyd N. Hussey (herein, the “Petitioner’’)
license for 275 days. The legal basis for the Hearing Examiner’s decision was that the
Petitioner was Operating a motor vehicle under the influence of intoxicants, and he did
not comply with his duty to submit to a blood alcohol test pursuant to 29-A M.R.S.A.
§2521.
Background
On December 5, 2002, the Petitioner was arrested for O.U.I. Officer Stephen
Jordan of the Bangor Police Department assisted two fellow officers in stopping the —
Petitioner’s car. Officer Jordan was only at the scene for a short time because he was
called away. Officer Jordan met with the Petitioner approximately 15-20 minutes later at
the jail after the Petitioner had been arrested.’ At this point, Officer Jordan observed that
the Petitioner’s eyes were bloodshot and glassy, and that there was an odor of
intoxicating beverage coming from his breath. Officer Jordan administered a Horizontal
Gaze Nystagmus field sobriety test to the Petitioner. The Officer detected a presence of
four out of six clues. He observed that there was a lack of smooth pursuit in each of the
Petitioner’s eyes, and additionally there was a distinct jerkiness (nystagmus) at maximum
deviation in each eye.
At this point, the Officer requested the Petitioner to submit to a chemical test,
specifically a breath test via the intoxilyzer instrument. When the Petitioner blew breath
into the instrument, the instrument recorded only insufficient samples. The parties
dispute whether the Petitioner was in good faith following the Officer’s instructions but
was physically unable to comply or whether the Petitioner was deliberately not following
the instructions.
However, this dispute becomes moot because Officer Jordan offered the
Petitioner the opportunity to submit a blood test instead. The Officer attempted to
contact the Petitioner’s personal physician (at the Petitioner’s request) to administer the
blood test. However, the Petitioner could not give the Officer the correct name of his
physician. The Officer then told the Petitioner that a nurse at the hospital would
administer the blood test, but the Petitioner stated he did not want a blood test. The
Officer claims, and the Hearing Examiner agreed, that he read the four provisions listed
on the implied consent form to the Petitioner, than gave him one last opportunity to
submit to the test, but the Petitioner refused. The Petitioner claims he was never
' At some point while Officer Jordan was gone, the Petitioner was arrested and taken to
jail.
informed of the consequences of failing to submit to the blood alcohol test. The
Petitioner did not sign the form.
As a result of the Petitioner’s failure to submit to the tests, the Secretary of State
issued a notice of suspension of his driver’s license and an Opportunity for a hearing. A
hearing was held on February 22, 2003. On March 17, 2002, the Hearing Examiner
issued a written decision finding the Officer did have probable cause to believe the
Petitioner was operating a motor vehicle under the influence of intoxicants, that the
Petitioner failed to complete the required chemical testing, and that he was informed of
the consequences for his refusal. Thus, the Hearing Examiner concluded that the
suspension of the Petitioner’s driver’s license for 275 days was justified.
Discussion
A. Standard of Review
The scope of judicial review of an administrative agency’s factfinding is strictly
limited; such a finding may be overturned only upon a showing by the challenger that it
was “unsupported by substantial evidence on the whole record.” Clarke v. Maine
Unemployment Insurance Commission, 491 A.2d 549, 552 (Me. 1985) (citation omitted).
“This standard of review of an administrative finding of fact is identical to the ‘clear
error’ standard used by the Law Court.” Id. (quoting Gulick v. Board of Environmental
Protection, 452 A.2d 1202, 1207-08 (Me. 1982)). The reviewing court must examine the
entire record to determine whether on the basis of all the testimony and exhibits before
the agency it could fairly and reasonably find the facts as it did. Clarke, 491 A.2d at 551
(citing In re Maine Clean Fuels, Inc., 310 A.2d 736, 741 (Me. 1973)). The Court will not
substitute its judgment for the Secretary of State’s where there may be a reasonable
difference of opinion. Clarke, 491 A.2d at 552 (citing Seven Islands Land Co. v. Maine
Land Use Regulation Commission, 450 A.2d 475, 479 (Me. 1982)).
In an 80C appeal, the Court must determine whether the Secretary of State abused
its discretion, committed error of law, or made findings not supported by substantial
evidence in the record. McGhie v. Town of Cutler, 2002 ME 62, 95, 793 A.2d 504.
Substantial evidence is evidence that a reasonable mind would accept as sufficient to
support a conclusion. Bath Iron Works v. Maine Unemployment Insurance Commission,
docket no. AP-01-066 (Me. Super. Ct., June 17, 2002) (Crowley, J.).
B. Applicable Law
The Legislature has unequivocally established the duty of every driver to submit
to a blood-alcohol test on probable cause to believe that he is operating a vehicle under
the influence. State of Maine v. Chase, 2001 ME 168, $6, 785 A.2d 702 (citing 29-A
M.LR.S.A. §2521(1)). Serious consequences are imposed upon those drivers who refuse
to submit to a test. See 29-A MLR.S.A. 2521(3). “It is precisely because the
consequences of a failure to cooperate can have such significant effects on the driver’s
life that the Legislature has required persons suspected of operating under the influence
to be protected from unknowingly triggering those consequences.” State of Maine v.
Chase, 2001 ME 168, 96, 785 A.2d 702. Thus, the informed consent warnings are
structured to inform the driver that he has a duty to take the test and his failure to
cooperate will result in serious sanctions. Id. They are not intended to provide a driver
with a choice of taking or refusing a blood-alcohol test. Id.
The Hearing Examiner made her decision based on the testimony of Officer
Jordan and the Petitioner, as well as the relevant provisions of the Title 29-A, the Maine
Motor Vehicles Statutes. The Hearing Examiner found Officer Jordan’s recollection of
the events and his testimony pertaining to the intoxilyzer instrument, the offering of a
blood test, and the communication of the implied consent provisions to be the more
reliable testimony. The Hearing Examiner stated that it is the Officer’s decision as to
whether a second test should be offered when for whatever reason a final test result has
not been obtained from the first choice of tests. 29-A M.R.S.A. §2521(2) supports this
Statement. She also relied on 29-A M.R.S.A. §2402(5), which states “[fJailure to submit
to a test... means failure to comply with the duty to submit to and complete a chemical
test under section §2521 [which applies here].”
Based on all of the evidence, the Hearing Officer concluded that the Petitioner
was informed of the consequences of failing to submit to a test, and that he did fail to
submit to a test. On this record, the Court concludes that the administrative findings are
supported by substantial evidence in the record.
Furthermore, the record shows that there was probable cause to believe the
Petitioner was operating a motor vehicle while under the influence of intoxicants. A
person is guilty of operating under the influence if his mental or physical faculties are
impaired, however slightly to any extent. State v. Bradley, 658 A.2d 236, 237 (Me.
1995). “Under this standard, probable cause to believe a defendant was operating under
the influence exists if there is reason to believe that his mental or physical faculties are
impaired by the consumption of alcohol.” Bradley, 658 A.2d at 237 (quoting State v.
Bento, 600 A.2d 1094, 1096-1097 (Me. 1991)). The quantum of proof necessary to
establish probable cause is less than the level of a fair preponderance of the evidence.
State of Maine v. Cilley, 1998 ME 34, 911; 707 A.2d 79 (citations omitted).
Given the relatively low quantum of proof required to establish probable cause,
Officer Jordan could have concluded that the Petitioner’s mental and physical faculties
were impaired based on the evidence in the record. Officer J ordan observed that the
Petitioner’s eyes were bloodshot and glassy, and that there was an odor of intoxicating
beverage coming from his breath. Officer Jordan administered the Horizontal Gaze
Nystagmus field sobriety test to the Petitioner, and detected the presence of four out of
six Clues indicating the Petitioner was intoxicated.
Conclusion
This Court concludes that the findings of the Secretary of State are supported by
substantial evidence in the record.
Therefore the entry is:
Appeal DENIED. The suspension order of the Secretary of State is AFFIRMED.
Uf Vay Vi
DATED: i\ 4) ew (or Z Z(Qz (hve
Just ce, Maine [ ‘Court
just EW M. MEAD
Date Filed
3/26/03
PENOBSCOT Docket No. _ AP-2003-7
Action
80C APPEAL
County
DUPLICATE
ASSIGNED TO JUSTICE ANDREW M. MEAD
LLOYD N. HUSSEY
STATE OF MAINE, DEPARTMENT OF THE
VS. SECRETARY OF STATE
Plaintiff's Attorney Defendant’s Attorney
PAINE, LYNCH & HARRIS, P.A. OFFICE OF THE ATTORNEY GENERAL
123 CENTER ST - P O BOX 1451 6 STATE HOUSE STATION
BANGOR, ME. 04402-1451 AUGUSTA, ME. 04333-0006
BY: MARTHA J. HARRIS BY: JOSEPH A. WANNEMACHER, AAG
Date of
Entry
3/26/03 Petition for Review filed. (Exhibit A attached)
4/2/03 Certificate of Service filed. Certified Mail receipt as to Respondent,
State of Maine, Department of the Secretary of State. (s.d. 3/27/03.
By: State Postal Center)
4/2/03 Certificate of Service filed. Certified Mail receipt as to Department
of the Attorney General. (s.d. 3/27/03. By: State Postal Center)
4/3/03 Notice of Assigned Justice filed. Pursuant to Administrative Order,
Single Justice Assignment of Civil Cases, Docket No. SJC-323, the above
referenced case is specially assigned to Justice Andrew M. Mead. /s/ Marga
Gardner, Clerk.
4/24/03 Certified Record filed by Resondents. (attachments attached)
4/24/03 Notice and Briefing Schedule 80C Appeal of Final Agency Actions filed.
Copy forwarded to all attorneys of record.
6/3/03 Brief in Support of Petition for Review filed by Petitioner. (attachment
attached)
7/7/03 Brief of Respondent filed. (Exhibit A attached)
7/18/03 Reply Brief of Petitioner filed.
9/9/03 Oral Argument on 80C Appeal set for 10/29/03 at 10:30 a.m. Copy forwarded
to all attorneys of record.
10/29/03 | Oral Argument on 80C Appeal had. Andrew M. Mead, Justice; Gerard Forgue,
Courtroom Clerk. Not recorded. The Docket Entry Will Be: Matter taken
under advisement. Justice Mead has file.