l N1 ERED AUG 0 8 20\4
STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CNILACTION DOCKET NO. AP-13-27 bHN- f£1'} 0~ -~3-JZ+ SAMUEL BELL,
,.,E!fitioner v. ORDER
MATTHEW DUNLAP, SECRETARY OF STATE,
Respondent
Before the court is a Rule 80(C) petition for rev1ew of final agency action
pursuant to 5 M.R.S.A. § 11001 et seq.
In March of 2013, The Bureau of Motor Vehicles (BMV) notified Mr. Bell that his
license would be suspended for a period of ninety days because he operated a motor
vehicle with a blood alcohol content (BAC) of 0.08% or more in February of 2013. The
petitioner, through counsel, filed a timely appeal and a stay was placed on the
suspension pending a hearing. A hearing was conducted, at which time the issue was
whether the petitioner was operating a motor vehicle and whether at the time of the
alleged operation, his BAC exceeded 0.08%. The hearing officer denied the appeal
finding that attempted operation" was not an issue and held that Mr. Bell was actually 11
11 operating" a motor vehicle and that the breath test was an accurate reflection of his
alcohol level at the time of the operation. In July of 2013, the BMV issued a stay of the
suspension pending the outcome of this appeal.
A person commits the criminal offense of operating under the influence if he
operates a motor vehicle while under the influence of intoxicants or while having an
alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of
breath. 29-A M.R.S.A. § 2411. To assist in the enforcement of said law, the Secretary of State shall immediately suspend the license of a person determined to have operated a
motor vehicle with an excessive alcohol level. The Secretary of State may stay the
suspension until a hearing is held. The scope of the hearing must include whether the
person operated a motor vehicle with an excessive alcohol level and whether there was
probable cause to believe that the person was operating a motor vehicle with an
excessive alcohol level. 29-A M.R.S.A. § 2453. It is Petitioner's assertion that he was not
operating a motor vehicle and that the State improperly shifted the burden of proving
the reliability of the breath test to the Petitioner.
Taking the second issue first, the court is satisfied that the probable cause found
by the officer that Petitioner was impaired along with Petitioner's admission that he did
not drink prior to being found by the officer does not shift the burden of proof
notwithstanding the test of 0.08% and a possible margin of error that could lower it
below the minimum requirement.
The court is asked to provide the legal definition of the term "operation" and the
statutory phrase "operation of a motor vehicle" and apply it to the facts of this case. In
doing so, the court is bound by the findings of fact made by the hearing officer. The
hearing officer concluded from the evidence presented at the hearing that Mr. Bell was
found by the law enforcement officer sitting in the driver's seat of a vehicle owned by
and registered to him. The engine was running. Mr. Bell had his seat belt on and he
had a hand on the steering wheel. When asked his intention, he advised, "We're
waiting for a friend and then we are leaving." From these facts, and with the addition
of the Petitioner's statement of intending to leave when a friend arrived, the examiner
concluded that there was probable cause to believe that Mr. Bell was "operating" the
motor vehicle.
2 First, it is important for the court to note that the hearing examiner made it clear
that she was not finding probable cause that ~. Bell was "attempting" to operate a
motor vehicle. Had she done so, she would have had to find a substantial step toward
the operation of the motor vehicle. 17-A M.R.S.A. § 152. Noteworthy is that she found
operation in the absence of any step at all, let alone a substantial step. Applying that
reasoning, a person doing absolutely nothing can be found to have been doing
something but not found to be attempting to do something.
In the instant situation,~. Bell was not doing anything. 1However, he expressed
an intent to operate the motor vehicle by leaving at a future event. A Law Court
decision which clearly is good law is instructive: State v. Sullivan, 146 Me. 381 (1951).
The language in that case notes the distinction between the operation of a car and the
attempt to operate as dictated by the legislature. Sullivan held that to operate a motor
vehicle is the same as to drive it.
It usually means that a person must so manipulate the machinery that the power of the motor is applied to the wheels to move the automobile forward or backward. The starting of the motor, however, maybe under existing circumstances be sufficient, if there is the intention to move the car.
ld. (emphasis added). The Court went further to say, "Where an attempt to operate is
charged, there must be an intent to commit the offense of operating. Unless the acts
done were done under the influence of liquor, no offense is committed." ld.
The State argues that Sullivan stands for the proposition that the court may take
into consideration the intention of the accused. Indeed, in the present case, the only
element adding to circumstances without an affirmative act on the part of~. Bell, is
the intent for future operation. It is important that the court note that the addition of
the intention to move the car as described in the Sullivan case, only exists where there is 1 Unless sitting in the vehicle is doing something?
3 an affirmative act, in that case "starting of the motor." In other words, there must be
some evidence that the starting of the motor was done with the intention to move the
car. This is found in cases where persons are found asleep in the car or simply resting
in a car to keep warm. In the absence of some effort by the Petitioner to manipulate any
part of the mechanical or electrical machinery of the automobile, the intent is not
relevant.
It is fundamental that operating a motor vehicle while impaired is not a criminal
offense requiring a culpable state of mind other than the intent to operate the motor
vehicle and that it must have been voluntary. The particularly affirmative acts taken by
a defendant must be done intentionally or knowingly.
The court has examined every decision cited by the parties to this proceeding as
well as some additional cases from multiple jurisdictions. State v. Henderson, 416 A.2d
1261 (1980), was an attempt case finding that accelerating the engine while seated in the
driver's seat constituted a substantial step toward operatio!1 of the vehicle. Citing
Sullivan, it says there was an attempt to operate as charged, and that unless the acts
constituting a substantial step toward operation were done with the intent to operate,
no offense is committed.
It was stated in an earlier case, State v. Howard, 139 A.2d 273 (1942), a case
involving a person who was sitting behind the steering wheel with the motor running
with the car in gear and both the rear wheels spinning while the front end of the motor
was suspended in the air five or six inches so that the turning of the steering wheel
could not control the direction or course of the motor vehicle. It cites People v. Domagala,
123 Misc. 757, 206 N.Y.S. 288, holding that the mere starting of a motor vehicle was
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l N1 ERED AUG 0 8 20\4
STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CNILACTION DOCKET NO. AP-13-27 bHN- f£1'} 0~ -~3-JZ+ SAMUEL BELL,
,.,E!fitioner v. ORDER
MATTHEW DUNLAP, SECRETARY OF STATE,
Respondent
Before the court is a Rule 80(C) petition for rev1ew of final agency action
pursuant to 5 M.R.S.A. § 11001 et seq.
In March of 2013, The Bureau of Motor Vehicles (BMV) notified Mr. Bell that his
license would be suspended for a period of ninety days because he operated a motor
vehicle with a blood alcohol content (BAC) of 0.08% or more in February of 2013. The
petitioner, through counsel, filed a timely appeal and a stay was placed on the
suspension pending a hearing. A hearing was conducted, at which time the issue was
whether the petitioner was operating a motor vehicle and whether at the time of the
alleged operation, his BAC exceeded 0.08%. The hearing officer denied the appeal
finding that attempted operation" was not an issue and held that Mr. Bell was actually 11
11 operating" a motor vehicle and that the breath test was an accurate reflection of his
alcohol level at the time of the operation. In July of 2013, the BMV issued a stay of the
suspension pending the outcome of this appeal.
A person commits the criminal offense of operating under the influence if he
operates a motor vehicle while under the influence of intoxicants or while having an
alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of
breath. 29-A M.R.S.A. § 2411. To assist in the enforcement of said law, the Secretary of State shall immediately suspend the license of a person determined to have operated a
motor vehicle with an excessive alcohol level. The Secretary of State may stay the
suspension until a hearing is held. The scope of the hearing must include whether the
person operated a motor vehicle with an excessive alcohol level and whether there was
probable cause to believe that the person was operating a motor vehicle with an
excessive alcohol level. 29-A M.R.S.A. § 2453. It is Petitioner's assertion that he was not
operating a motor vehicle and that the State improperly shifted the burden of proving
the reliability of the breath test to the Petitioner.
Taking the second issue first, the court is satisfied that the probable cause found
by the officer that Petitioner was impaired along with Petitioner's admission that he did
not drink prior to being found by the officer does not shift the burden of proof
notwithstanding the test of 0.08% and a possible margin of error that could lower it
below the minimum requirement.
The court is asked to provide the legal definition of the term "operation" and the
statutory phrase "operation of a motor vehicle" and apply it to the facts of this case. In
doing so, the court is bound by the findings of fact made by the hearing officer. The
hearing officer concluded from the evidence presented at the hearing that Mr. Bell was
found by the law enforcement officer sitting in the driver's seat of a vehicle owned by
and registered to him. The engine was running. Mr. Bell had his seat belt on and he
had a hand on the steering wheel. When asked his intention, he advised, "We're
waiting for a friend and then we are leaving." From these facts, and with the addition
of the Petitioner's statement of intending to leave when a friend arrived, the examiner
concluded that there was probable cause to believe that Mr. Bell was "operating" the
motor vehicle.
2 First, it is important for the court to note that the hearing examiner made it clear
that she was not finding probable cause that ~. Bell was "attempting" to operate a
motor vehicle. Had she done so, she would have had to find a substantial step toward
the operation of the motor vehicle. 17-A M.R.S.A. § 152. Noteworthy is that she found
operation in the absence of any step at all, let alone a substantial step. Applying that
reasoning, a person doing absolutely nothing can be found to have been doing
something but not found to be attempting to do something.
In the instant situation,~. Bell was not doing anything. 1However, he expressed
an intent to operate the motor vehicle by leaving at a future event. A Law Court
decision which clearly is good law is instructive: State v. Sullivan, 146 Me. 381 (1951).
The language in that case notes the distinction between the operation of a car and the
attempt to operate as dictated by the legislature. Sullivan held that to operate a motor
vehicle is the same as to drive it.
It usually means that a person must so manipulate the machinery that the power of the motor is applied to the wheels to move the automobile forward or backward. The starting of the motor, however, maybe under existing circumstances be sufficient, if there is the intention to move the car.
ld. (emphasis added). The Court went further to say, "Where an attempt to operate is
charged, there must be an intent to commit the offense of operating. Unless the acts
done were done under the influence of liquor, no offense is committed." ld.
The State argues that Sullivan stands for the proposition that the court may take
into consideration the intention of the accused. Indeed, in the present case, the only
element adding to circumstances without an affirmative act on the part of~. Bell, is
the intent for future operation. It is important that the court note that the addition of
the intention to move the car as described in the Sullivan case, only exists where there is 1 Unless sitting in the vehicle is doing something?
3 an affirmative act, in that case "starting of the motor." In other words, there must be
some evidence that the starting of the motor was done with the intention to move the
car. This is found in cases where persons are found asleep in the car or simply resting
in a car to keep warm. In the absence of some effort by the Petitioner to manipulate any
part of the mechanical or electrical machinery of the automobile, the intent is not
relevant.
It is fundamental that operating a motor vehicle while impaired is not a criminal
offense requiring a culpable state of mind other than the intent to operate the motor
vehicle and that it must have been voluntary. The particularly affirmative acts taken by
a defendant must be done intentionally or knowingly.
The court has examined every decision cited by the parties to this proceeding as
well as some additional cases from multiple jurisdictions. State v. Henderson, 416 A.2d
1261 (1980), was an attempt case finding that accelerating the engine while seated in the
driver's seat constituted a substantial step toward operatio!1 of the vehicle. Citing
Sullivan, it says there was an attempt to operate as charged, and that unless the acts
constituting a substantial step toward operation were done with the intent to operate,
no offense is committed.
It was stated in an earlier case, State v. Howard, 139 A.2d 273 (1942), a case
involving a person who was sitting behind the steering wheel with the motor running
with the car in gear and both the rear wheels spinning while the front end of the motor
was suspended in the air five or six inches so that the turning of the steering wheel
could not control the direction or course of the motor vehicle. It cites People v. Domagala,
123 Misc. 757, 206 N.Y.S. 288, holding that the mere starting of a motor vehicle was
sufficient to constitute its operation, notwithstanding it was parked with front wheels
against the curb and never put in motion. It went on to cite State v. Webb, 202 Iowa 633,
4 210 N.W. 751, where a motor was started and permitted to idle with the gear in neutral;
and Commonwealth v. Clarke, 254 Mass. 566, 150 N.E. 829, where the manipulation of the
gear lever of a car standing on a grade so that it moved slightly through the operation of
the law of gravity, although the motor was not started, was held operation.
In another case, State of Vermont v. Storrs, 105 Vt. 180 (1933), the statute provides,
"A person shall not operate or attempt to operate a motor vehicle while under the
influence of intoxicating liquors." In that case, the acts which were the subject of the
prosecution was the turning of the ignition switch and setting the self starter in motion.
The evidence was clear that the mechanism of the automobile was so far broken down
that the engine, to the defendant's knowledge, could not be set in motion. However,
the defendant argued that because he had no intent to operate the vehicle and because
the operation was impossible under the circumstances he could not be found to have
violated the law. Notwithstanding the intent of the defendant, the court found
operation of the motor vehicle by the affirmative act of turning the ignition switch.
The court notes that in Commonwealth v. USKI, 263 Mass. 22 (1928), which deals
with a different statutory provision for operating a motor vehicle including the setting
in motion of the operative machinery of the vehicle, that the court interpreted the
language to mean that the defendant intentionally does an act and makes use of any
mechanical or electrical agency which alone or in sequence will set in motion the motor
part of the vehicle. In that case the statute was satisfied when the defendant was found
to have turned on the automobile lights.
In State v. Deschenes, 780 A.2d 295 (Me. 2001), the defendant was found to be
"attempting to start the car" with his left hand on the steering wheel, his feet on the
floor by the pedals, and his right hand attempting to insert a key in the ignition. When
asked what he was doing, the defendant responded that he was "just leaving." This
5 stands for the proposition that the admissions of the defendant may be used to establish
operation. While that may be the case, there is no question that his conviction was for
attempting to operate and that his hand was attempting to insert a key in the ignition.
In related cases of People v. Pomeroy and People v. Fulcher, 419 Mich. 441, the
defendant was asleep in a stationary car, parked, with the motor running. The
defendant's head was resting against the horn, but the transmission was in neutral. The
motor and fuel were on, but the lights were off. The majority opinion held that any
reasonable interpretation of the phrase "operate a vehicle" cannot be held to apply to a
person sleeping in a motionless car. The dissent attempts to use a definition that there
is operation if the defendant is in "actual physical control of the vehicle." There is no
evidence that standard has ever been accepted in the State of Maine.
It is suggested that the hearing examiner, by statute, is only required to find
probable cause. This would suggest that the court is not able to apply a beyond a
reasonable doubt standard as would be required to be made by a criminal jury. The
argument would suggest that by a preponderance of the evidence, it is more likely than
not that Mr. Bell was operating the vehicle, or, more appropriately, it is more likely than
not that sometime in the future, Mr. Bell would operate the motor vehicle by taking
some affirmative step. To this court, that would suggest that a person found outside of
a residence with burglar tools, could be held to be charged with the offense of burglary;
or a person outside a structure with matches, accelerant, and flammable fuel could be
charged with arson; or that a person placing goods in a shopping cart in a supermarket
inside prior to checkout, without concealment, could be charged with theft, in all of the
cases, if the individual were to say that they intended to commit the crimes in question.
Further, the definition of operation would be the same regardless of the burden of
6 proof. The Secretary of State, law enforcement officers, defense counsel, and trial courts
are all entitled to the same definition.
The courts have slowly adopted various circumstances presented before them in
deciding what is the operation of a motor vehicle in order to deal with the realities of
contemporary life. But, at some point, this court believes there must be some
affirmative evidence of operation, not simply the intent to do so in the future. Mr. Bell
was found sitting in a motor vehicle in a position where he could operate the motor
vehicle in the future and maybe had the intent to do so, but at the time of observation of
all witnesses, this court finds no evidence that he was in operation, actual or implied, of
that motor vehicle.
For the foregoing the entry will be:
The final agency decision of the Bureau of Motor Vehicles in the matter of State v. Samuel Bell, AUGSC-AP-2013-027, is reversed.
DATED: June 23, 2014
Donald H. Marden Superior Court Justice
7 Date Filed 07/05/13 Kennebec Docket No. AP-13-27 F County
Action: Petition for Review J. Marden J. Ni~1ison soc
Samuel Bell vs. Matthew Dunlap (Secretary of State)
Plaintiff's Attorney Defendant's Attorney
Wayne R. Foote, Esq. Donald Macomber, AAG 344 Mt. Hope Avenue 6 State House Station Bangor, ME 04401 Augusta, ME 04333
Date of Entry
7/5/13 Petition for Review of final agency action, filed. s/Foote, Esq.
7/10/13 Letter entering appearance and indicating administrative record will be submitted as soon as it is available, filed. s/Macomber, AAG
8/1/13 Certified Record, filed (7/30/13). s/Macomber, AAG
8/1/13 Notice and Briefing Schedule issued. Copy to s/Foote, s/Macomber, AAG
8/2/13 Acknowledgement of Receipt of Summons and Complaint, filed. Executed by Robert O'Connell on behalf of BMV and Donald Macomber, AAG
8/9/13 Brief of Petitioner, filed. s/Foote, Esq.
10/8/13 Brief of Respondent, filed (10/7/13). s/Macomber, AAG
11/6/13 Oral argument scheduled on 11/18/13 at 1:30 p.m. Notice of Hearing mailed to Atty Foote and AAG Macomber.
11/18/13 Motion to Continue, filed. s/Foote, Esq. ORDER, Marden, J. Defendant's motion to continue is GRANTED. Copy to Atty Foote and AAG Macomber
3/25/14 Hearing scheduled for Oral Argument April 24, 2014 at 11:15 a.m. Copy sent to Foote, Macomber
3/28/14 Hearing rescheduled to 9:00 a.m. with consent of parties.
4/28/14 Oral argument held (4/24/14), J. Marden presiding. Wayne Foote, Esq.; Donald Macomber, AAG Tape 1841 Index 5888-6664 Under Advisement.
Page 1 AP-13-27 6/24/14 ORDER, Marden, J. (6/23/14) The final agency decision of the Bureau of Motor Vehicles in the matter of State v. Samuel Bell, AUGSC-AP-2013-027, is reversed. Copy to Arty Foote and AAG Macomber. Copy to Repositories.
6/24/14 Notice of removal of Record sent to AAG Macomber.
Page 2 AP-13-27