Opinion

Beaulieu v. Secretary of State

Court
Superior Court of Maine
Filed
Nov 16, 2016
Status
Unpublished
On the bench
Justice, Superior Court
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE SUPERIOR COURT

AROOSTOOK,ss CIVIL ACTION

DOCKET NO. CARSC-AP-16-003

DANA BEAULIEU )

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VS. ) DECISION AND ORDER

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) RULE 80C APPEAL

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SECRETARY OF STATE )

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On August 12, 2016 Dana Beaulieu, the Petitioner, filed a Petition for Review

pursuant to M.R. Civ. P. BOC and 5 MRSA Section 11002 seeking to overturn the

suspension of his driver's license by the Secretary of State.

PROCEDURAL BACKGROUND AND FACTS

A review of the record supports the following findings. On March 17, 2016 the

Secretary of State sent to Petitioner a notice of suspension of his driver's license

pursuant to 29-A MRSA Section 2453. Petitioner requested a hearing and the

Secretary of State issued a Notice of Hearing setting the matter for June 3, 2016. The

Notice of Hearing incorrectly identified the statutory issues as Section 2453-A,

which is an OUJ-ctrug hearing rather than a Section 2453 OUI hearing.

All parties were present for the June 3, 2016 hearing. At the beginning of the

hearing, the hearing officer correctly identified the issues as being pursuant to

Section 2453. Evidence was presented on the Section 2453 issues, and Petitioner

fully participated with an extensive cross-examination of the arresting officer. Only

at the end of the hearing was it noticed or pointed out that the notice of hearing

incorrectly referenced Section 2453-A. 1 Petitioner moved to rescind the

suspension, which was denied. But the hearing examiner did allow Petitioner

additional time to brief and submit a memorandum supporting his position. In

1 In fact the Hearing Officer had closed the hearing and gone off record, and during

that off record period the inaccuracy in the hearing notice was detected. Tr. 98.

2 The intoxilyzer test was conducted by a certified operator, whose certification

1

addition, before issuing a final written decision, a corrected notice was issued. There

is no evidence on the record to demonstrate or indicate that the Petitioner was

prejudiced by the inaccurate hearing notice 01· that the Petitioner would have

conducted the hearing differently.

At the June 3, 2016 hearing the issues litigated were: 1. Was there probable cause to

believe the Petitioner was operating a motor vehicle with an alcohol level above the

legal limits; and 2. Did the Petitioner operate a motor vehicle with an alcohol level

above the legal limits.

Regarding probable cause, at the conclusion of the hearing, the hearing officer orally

made on the record preliminary findings of erratic operation(difficulty keeping,

maintaining the vehicle in the lane), an odor of alcohol, slurred speech, and

unsteadiness on his feet "even without considering the various specific field

sobrieties." Tr. 96-97.

In her written decision, the hearing officer made findings which included:

-the officer observed Petitioner's vehicle weaving in its lane, and touching or

crossing the yellow line four times;

-the officer detected an odor of alcohol, the Petitioner's speech was slul'red

and he was unsteady on his feet;

-the field sobriety tests administered by the officer were not done in

accordance with NHTSA guidelines but were corroborative of his observations of

unsteadiness.

In addition, the intoxilyzer test results indicating the Petitioner's blood alcohol level

was 0.16 grams of alcohol per 210 liters of breath was admitted as evidence. 2 Based

on these findings, the hearing examiner ruled there was probable cause to believe

the Petitioner operated a motor vehicle with a blood alcohol level above the legal

limits and that he did operate a motor vehicle with a blood alcohol level above the

legal limits.

STANDARD OF REVIEW

In reviewing directly the record of an administrative hearing, the court determines

whether the hearing examiner abused her discretion, committed an error oflaw, or

made findings not supported by substantial evidence in the whole !'ecord. Abraham

v. Secretary ofState, 584 A.2d 688,670 (Me. 1991). The Court will not substitute its

own judgment for that of the hearing examiner merely because the record could

support more than one result. Id. Where the Superior Court acts as an intermediate

2 The intoxilyzer test was conducted by a certified operator, whose certification

number was noted on the test; therefore the test result was admitted without

testimony from that certified operator.

2

appellate court, ''we review the hearing examiner's decision directly for abuse of

discretion, error of law, or findings not supported by substantial evidence in the

record." Payson v. Secretary of State, 634 A.2d 1278, 1279 (Me. 1993). The agency's

factual determinations must be sustained unless shown to be clearly erroneous."

lmagineering Inc. v. Superintendent ofIns. 593 A.2d 1050, 1053 (Me. 1991) The party

seeking to vacate the agency decision bears the burden of persuasion on appeal.

Zegel v. Board ofSocial Licensure, 2004 ME 31, P. 14.

Probable Cause

Petitioner asserts that the arresting officer was not properly trained or

knowledgeable in the administration of field sobriety tests or other aspects of OUI

investigations, and therefore any determinations or findings by him of probable

cause were compromised and unreliable. Petitione1· also asserts the field tests were

not performed properly.

However, the probable cause standard to require a person to take a blood test has a

very low threshold. State v. Webster, 2000 ME 115, P.7. And that is because a person

can be found guilty of operating under the influence if his senses are "impaired

however slightly" or" to any extent".ld, Therefore, for probable cause, the officer

needs only evidence that the person's senses are affected to the slightest degree, or

to any extent, by alcohol. Jd.

In Webster~ the court found that the arresting officer's testimony of unsteadiness,

and failure of field sobriety tests was inaccurate. None-the-less, observations of

driving maneuvers, the odor of alcohol and statements about consumption were

found to be sufficient probable cause. The field sobriety tests are not contrnlling. /d.

In this case, the record shows the officer observed erratic operation, detected an

odor of alcohol, and observed slurred speech and unsteadiness. Those observations

without field sobriety tests are sufficient probable cause to believe the Petitioner

was operating under the influence and are sufficient to support the hearing officer's

findings of probable cause.

The arresting officer did not conduct the field sobriety tests in accordance with

NHTSA guidelines. But an officer's failure to strictly adhere to those guidelines or

procedures does not render evidence regarding the field sobriety tests inadmissible

or without value in determining whether a suspect is under the influence. State v.

Fay, 2015 ME 160, P.7. In her written decision, the hearing officer wrote "Field

sobriety tests were not conducted precisely according to NHTSA guidelines, but

were generally corroborative of the prior observation of unsteadiness." The hearing

officer's consideration of the field sobriety tests under such constraints is proper

and consistent with Fay.

3

The hearing officer's finding of probable cause is supported by substantial evidence

in the record and are not erroneous, and therefore will be sustained.

Petitioner also asserts the intoxilyzer test results should not have been admitted

since the evidence suggests that the arresting officer was pre-occupied writing

notes during the 15 minute wait period. However, the test was not administered by

the arresting officer but instead by a certified intoxilyzer operator. There is no

evidence of irregularities in the test administration by the certified operator. The

written test report signed by the certified operator was properly admitted into

evidence and properly considered by the hearing officer.

Due Process and Inaccurate Notice of Hearing

Petitioner argues he was denied due process by being issued a notice of hearing that

incorrectly identified the statutory issues to be addressed as pursuant to Section

2453-A. Due process does require notice of the issues, an opportunity to be heard,

the right to introduce evidence and present witnesses, the right to respond to claims

and evidence, and an impartial factfinder. In re Kristy YL2000 ME 98. And a court

may vacate an agency's action if it results in "procedural unfairness". Hopkinsy.

Dep't ofHuman Servs., 2002 ME 129, P.12. However, with respect to defective notice,

a petitioner must show he was prejudiced by the defective notice. Id. at P. 13.

In Hopkins, plaintiffs were issued a technically improper notice that did not inform

them of the specific sections on which DHHS was acting. However because the

plaintiffs were aware of the reasons for the action and could not show prejudice

arising from the defective notice, the Court ruled their due process rights were not

violated.

The facts of this case are very similar to Hopkins. Although the notice of hearing

incorrectly referenced Section 2453-A, Petitioner was originally notified his license

was suspended pursuant to Section 2453. Section 2453 was cited at the beginning of

the hearing, and the issues addressed at the hearing were Section 2453 issues. In

other words, the hearing was conducted and petitioner fully participated with

Section 2453 issues being litigated. The record indicates neither party was aware of

the incorrect notice until the end of the hearing. The hearing was closed and off

record when apparently the discrepancy was identified. Once alerted to the mistake,

the Petitioner was afforded time to brief the issue more fully and submit additional

information. However, there is no evidence in the record which even remotely

suggests the Petitioner was prejudiced or his due process rights violated. In addition

to allowing petitioner additional time, a corrected notice was issued. But the

issuance of a corrected notice was not necessary. In short, at the hearing held June 3,

2016, the proceedings were conducted, evidence was admitted and subjected to

examination and the parties otherwise conducted themselves as if on notice of a

Section 2453 hearing despite the written notice incorrectly referencing Section

2453-A. Nothing different would have occurred had the notice referenced Section

2453. There is simply no evidence of prejudice.

4

'd.

Dated: November~2 016

Justice, Superior Court

s

Appeal

Date 08/12/2016 Aroostoo Docket CARSC-AP-2016-003

Filed k No.

County

Action soc

Plaintiff Dana Beaulieu Defendant State of Maine

vs.

Bureau of Motor Vehicles

Attorney Gene Sullivan, Jr. Attorney Donald Macomber

Date of Entry

2016

08/22/2016 Petition and request for Stay filed on 08/12/2016 by Atty Sullivan.

08/26/2016 Respondent's Opposition to Petitioner's Mtn for Stay filed by AAG

Donald Macomber on 08/22/2016.

09/12/2016 Record of Proceeding filed by AAG Macomber on 09/09/2016.

09/15/2016 Order on Petitioner's Motion for Stay- "denied" (J. Stewart)

09/13/2016.

Notice and Briefing Schedule issued 09/14/2016.

10/19/2016 Petitioner's Brief filed by Atty. Sullivan by email on 10/18/2016.

Hard copy to follow by mail.

10/20/2016 Original Petitioner's Brief filed by Atty. Sullivan on 10/19/2016.

10/24/2016 Brief of the Respondent, the Secretary of State filed by AAG Macomber

on 10/24/2016.

11/21/2016 Petitioner's Reply Brief filed 11/07/2016 by Atty. Sullivan.

11/21/2016 Decision and Order signed by Justice Stewart on 11/16/2016.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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