Farwell v. Secretary of State

• Court: Superior Court of Maine
• Decided: June 10, 2019
• Docket: KENap-19-0010
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. AP-19-0010

DAVID FARWELL,

Petitioner

V. DECISION AND ORDER

SECRETARY OF STATE BUREAU OF MOTOR VEHICLES,

Respondent

Before the court is Petitioner David Farwell 's M.R. Civ. P. 80C review of the

Secretary of State Bureau of Motor Vehicles' decision affirming suspension of his

motor vehicle license.

I. Facts

The following facts are based on the Administrative Record. Petitioner David

Farwell (Farwell) was arrested on September 8, 2018, by Sergeant Adam Shaw for

operating under the influence (alcohol). (R. T6 at 4.) Sergeant Shaw observed

Farwell speeding and crossing the fog line, and upon pulling Farwell over, he

observed him with glassy and bloodshot eyes, slurred speech, and the smell of

alcohol on his breath. (R. T6 at 4-5 .) Farwell admitted to drinking two or three

Bloody Mary. (R. T6 at 4.) Sergeant Shaw observed 6 out of 6 clues on the

Horizontal Gaze Nystagmus (HGN) test. (R. T6 at 5 .) Farwell made several (

mistakes on an oral alphabet test and a counting backwards test. (R. T6 at 5.) After

asking about loose objects in Farwell' s mouth and ensuring that Farwell' s upper

dentures and any remaining glue were removed, Sergeant Shaw administered a

chemical breath test with an Intoxylizer 8000. (R. T6 at 6.) The Intoxylizer report

found that Farwell had O.17 grams of alcohol per 210 Ii ters of breath. (R. T6 at 6,

T7 at 1.) Pursuant to 29-A M.R.S. § 2453 (2018), the Secretary of State Bureau of

Motor Vehicles administratively suspended Farwell's license. (R. T8 at 1) . Farwell

timely requested and received an administrative hearing on January 29, 2019. (R.

T8 at 6.)

At issue during the hearing was whether the chemical breath test administered

by Sergeant Shaw was reliable given Farwell's fixed lower dental implant. (R. T5 at

35-36.) Farwell submitted photographs of his dental implant before and after

cleaning, as well as a letter from his dentist, Dr. Lyford, to the effect that Farwell

had not visited him in six years. (R. TIO at 1.) Dr. Lyford's letter also stated,:"[h]e

has an implant retained lower prosthesis ... [that] can harbor bacteria and yeast."

(R. TIO at 1.) Dr. Lyford concluded, "bacteria and yeast give off many volatile sulfur

compounds as well as many other volatiles and this could affect any lab work or gas

laboratories he has submitted to." (R. TIO at 1.) Sergeant Shaw testified that had he

known about the fixed dental implant, he probably would have followed the cautious

approach of taking a blood sample. (R. T5 at 17-18 .)

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The hearing officer found that no expert testimony or evidence showed that

the test would be unreliable because of Farwell's specific implants. (R. TS at 36.)

Further, the hearing officer found that Sergeant Shaw administered the test pursuant

to the manual, which only required loose objects or devices be removed before the

administration of the test. (R. TS at 21, 36.) Ultimately, the hearing officer held that

he was not persuaded the fixed dental implant could trap alcohol sufficient to

produce an alcohol level of 0.17 after a 15-minute wait period. (R. TS at 35-36.)

I. Discussion

A. Standard of Review

When the decision of an administrative agency is challenged on appeal, "the

court may reverse or modify the decision if the administrative findings, inferences,

conclusions or decisions

are:

1) In violation of constitutional or statutory provisions;

2) In excess of the statutory authority of the agency;

3) Made upon unlawful procedure;

4) Affected by bias or error of law;

5) Unsupported by substantial evidence on the whole record; or

6) Arbitrary or capricious or characterized by abuse of discretion.

3 5 M.R.S. § 11007(4) (2018). The court will sustain the administrative decision if,

"on the basis of the entire record before it, the agency could have fairly and

reasonably found the facts as it did." Seider v. Ed. of Examiners of Psychologists,

2000 ME 206, ~ 9,762 A.2d 551. The party seeking to vacate the agency's decision

bears the burden of proving that no competent evidence exists to support the

agency's decision. Seider, at~ 9.

B. Analysis

Farwell argues that Sergeant Shaw's testimony, together with the material

submitted by Dr. Lyford, constitutes significant evidence that the test result was not

reliable. (Pet'r's Br. 4.) The Secretary of State argues there was substantial evidence

in the record to support the hearing examiner's decision that Farwell operated a

motor vehicle with an alcohol level of 0.08 grams or more per 210 liters of breath.

(Resp't's Br. 3.) The hearing officer found that no expert evidence showed that the

test would be unreliable due to Farwell' s specific implants, and did not give weight

to Sergeant Shaw's testimony that he would have administered a different test if he

had known about the fixed implant. (R. 5-36.) The hearing officer was in the best

position to determine the credibility of the evidence, and Farwell makes no

contention that finding the test reliable despite Dr. Lyford' s letter is "so farfetched

it compels disbelief." See Dyer v. Superintendent of Ins., 2013 ME 61, ~ 12, 69 A.3d

416 (describing the exception to the well-established principle that factual findings

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and credibility determinations are left to the sound judgment of the trier of fact as

when the testimony is so farfetched it compels disbelief). While Dr. Lyford's letter

states that Farwell' s implants harbored bacteria, giving off volatiles, and that

bacteria trapped by Farwell' s implant could affect gas laboratories, no evidence

established how or the degree to which such an implant would affect a chemical

breath test.

Farwell' s burden is to show that no competent evidence exists to support the

agency's decision, not that there is substantial evidence in the record that supports

his position. See Seider, at~ 9. The court will affirm the findings of fact if there is

any competent evidence in the record to support them, even if the record contains

other inconsistent or contrary evidence. Bankers life & Cas. Co. v. Superintendent

of Ins., 2013 ME 7, ~ 16, 60 A.3d 1272. Competent evidence that Farwell's blood

alcohol content was 0.08 or above exists in Sgt. Shaw's testimony and report that he

observed Farwell's glassy and bloodshot eyes, slurred speech, and the smell alcohol

on his breath. Moreover, Sgt. Shaw observed 6 out of 6 clues on the Horizontal

Gaze Nystagmus test. Farwell admitted to drinking two or three Bloody Marys and

he made several mistakes on an oral alphabet test and a counting backwards test.

Finally, after Sgt. Shaw removed Farwell's dentures, ensured no glue remained, and

adhered to the 15-minute wait period, the Intoxylizer report found that Farwell had

a 0.17 BAC. Based on the Administrative Record, the hearing officer could have

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fairly and reasonably found the facts as he did. Accordingly, Farwell's M.R. Civ P.

80C review is denied.

The entry is:

1. Petitioner's M.R. Civ. P. 80C Review of Final Agency Action is DENIED.

2. This order is incorporated into the docket by reference pursuant to M.R.

Civ. P. 79(a).

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Date: June 10, 2019

Justice, Superior Court