Tibbetts v. State of Maine

SUPERIOR COURT

CIVIL ACTION \

DOCKET NO, AP-02-028,

Te de

STATE OF MAINE

CUMBERLAND, ss.

JEROME E. TIBBETTS,

Petitioner,

STATE OF MAINE SECRETARY OF STATE,

BUREAU OF MOTOR VEHICLES,

JUN 4 = 2005

Respondent,

This matter is before the court on the appeal of the petitioner Jerome

Tibbetts from the decision of the respondent Secretary of State, Bureau of

Motor Vehicles (BMV) dismissing his petition for an administrative hearing

regarding the suspension of his driver’s license.

BACKGROUND

On January 27, 2002 a Portland Police Officer arrested the petitioner for

OUI. The law enforcement officer also submitted a report to BMV, which

included a certificate of an intoxillizer test result indicating that the petitioner’s

blood alcohol content (BAC) was .08% or more. 29-A M.R.S.A. § 2481 (1996 &

Supp. 2003). As a result, the petitioner’s license was administratively

suspended. Id.

Concurrent with the criminal prosecution, the petitioner requested a

hearing before BMV regarding the administrative suspension of his license.

BMV scheduled a hearing for the morning of March 20, 2002. On March 19,

2002 at 4:00 p.m., the petitioner requested a continuance of the hearing

because he had not yet retained counsel. A new hearing was set for the

morning of April 10, 2002. On April 9, 2002 at 4:55 p.m., the petitioner

requested a second continuance because he had just retained counsel. The

hearing was rescheduled for May 9, 2002. The petitioner failed to appear at

the hearing and his petition was dismissed. He filed this appeal on June 18,

2002.

DISCUSSION

The petitioner’s appeal is untimely. The Administrative Procedures Act

(APA) prescribes a 30-day period within which an aggrieved party may appeal

final agency action. The appeal period begins from the time of notice of the

action. 5 M.R.S.A. § 11002(3) (2003). In this case, the petitioner acknowledges

receiving notice on May 1 1, 2002. He filed the petition on June 18, 2002 —

thirty-eight days later." Brown v. State, Dept. of Manpower Affairs, 426 A.2d

880 (Me. 1981) (time limitations in APA are jurisdictional and are noticeable

sua sponte).

Even if timely, the appeal must be denied. The petitioner asserts to this

court that his BAC test results were suppressed in the criminal action and the

OUI charge was subsequently dismissed, although there is no record reference

supporting this assertion.” From this premise, he argues that BMV improperly

relied on the suppressed BAC evidence when it suspended his license. BMV

counters that the petitioner failed to preserve and generate the issue for this

appeal because he failed to appear at the administrative hearing. Further,

BMV argues that this court’s review on appeal is limited to the record before

’ The petitioner explains that he confused the date of the BMV hearing (May 9, 2002)

with the date of the court hearing on his motion to suppress (May 16, 2002).

* At the petitioner’s request, a continuance of this appeal was granted to allow the

petitioner to obtain a transcript of the criminal court proceedings. However, no such

record was ever provided to this court.

that agency, unless the court grants a request to present additional evidence.

M.R. Civ P. 80C(f). There has been no such request. Finally, BMV argues that

it could suspend the petitioner’s license based on the police report and BAC

evidence, notwithstanding the suppression of such evidence by the criminal

court, because the standard of proof and constitutional requirements for

criminal charges are far more stringent then those that govern BMV’s

suspension decision. The court agrees with the respondent.

The petitioner failed to adequately preserve his rights before the

administrative agency. His failure to appear at the BMV hearing on May 9th

properly resulted in the dismissal of his petition for a hearing on the

suspension of his license. If he had appeared he could have presented

evidence to attempt to rebut the allegations about his BAC level. Because he

did not, he has waived the right to argue that issue on appeal. Seider v. Bd. Of

Psychologists, 2000 ME 206, {1 39, 762 A.2d 551 (holding that issues not raised

at the administrative hearing are deemed unpreserved for appellate review); 5

M.R.S.A. § 11007(2)-(4); M.R. Civ. P. 80C(c). Also, because this court is limited

to the record before the hearing officer below, the dismissal of the petition must

be affirmed.

Even if the petitioner had properly moved to submit additional evidence

regarding the suppression of BAC evidence and the eventual dismissal of the

OUI charge and was allowed to do so, the result would be the same. The

suppression of evidence at his criminal proceeding did not preclude the

administrative agency and hearing officer from relying on the results reported

to BMV by the arresting officer. 29-A M.R.S.A. 8 2485(4}(1996 & Supp. 2003).

The hearing officer did not need to determine the legality of the arrest or stop.

Powell v. Secretary of State, 614 A.2d 1303, 1305 (Me. 1992). He was only

required to determine whether there was probable cause for a blood alcohol

determination of .08% or more. Id. The exclusionary rule in criminal cases

does not apply to evidence in administrative hearings. Id. at 1306-07

(reasoning that there was little deterrent effect on police conduct by excluding

the evidence from remedial, non-punitive, administrative proceedings); 5

M.R.S.A. § 9057 (2002) (stating that all evidence upon which reasonable

persons would rely is admissible at administrative proceedings); 29-A M.R.S.A.

§ 2431(1996 & Supp. 2003) (stating that test results are admissible at

suspension hearings).

, - DECISION

Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this Decision

and Order on the Civil Docket by a notation incorporating it by reference and

the entry shall be:

The decision of the State of Maine Secretary of State, Bureau of

Motor Vehicles dismissing Petitioner's petition to that agency is

AFFIRMED.

Dated May 9, 2003 MeL

Justice, Superior Court

Date Filed ____ 96-18-02 CUMBERLAND Docket No. _APO02-28 7

County ~

Action 80C_ APPEAL,

JEROME E. TIBBETTS / BUREAU OF MOTOR VEHICLES

VS.

Plaintiff’s Attorney Defendant’s Attorney

JEROME E. TIBBETTS e etnn eae ENACHER AAG

616 WESTBROOK STREET A tate ME 063330006

SOUTH PORTLAND ME 04106 307) 626 #800 -

775-2804 . (207) 626-

Date of

Entry

2002

June 19 Received 6-18-02.

Summary sheet filed.

Notice of appeal filed.

Application to proceed without payment of fees filed.

Indigency affidavit filed.

June 20 On 6-19-02.

“os 7-1 As -to Jerome Tibbetts application to proceed without~payment, -the filing

fee is waived. (Cole, J.)

6-20-02 copy mailed to Jerome Tibbetts at 616 Westbrook Street, South

Portland ME 04106

Aug. 7 Received 08-07-02:

Certified Copy of Complete Record filed.

Sept. 3 On 9-3-02.

Briefing schedule mailed. Petitioner's brief due 10-14-02. (NOT PREVIOUSI

MATLED AS APPEAL CLERK NOT NOTIFIED OF RECORD BEING FILED)

Oct 18 Received 10-18-02:

Petitioners Brief with Attachments filed.

Dec. 27 Received 12-24-02:

Plaintiff, Jerome E. Tibbetts Motion for Enlargement of Time filed.

Dec. 30 On 12-30-02:

As to Plaintiff, Jerome E. Tibbetts Motion for Enlargement of time: Defen-

dant reports that it has no objection t Plaintiffs' Motion for enlargement

of time and, therefore, it is granted. The hearing on the 80c Appeal shall

be set for the March 26, 2003 Motion list.(Humphrey, J.).

On 12-30-02 Copies mailed-to Jerome E. Tibbetts-at 616 Westbrook Street,

South Portland, Maine 04106 and Joseph Wannemacher, AAG.