Gourdouros v. Secretary of State

• Court: Superior Court of Maine
• Decided: October 12, 2006
• Docket: YORap-06-030
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. NO. AP-06-030, '31 'L, f. c-?g-'d.

GEORGE P. GOURDOUROS,

Petitioner

DECISION AND ORDER DONALD L. GARBRECHT LAW LIBRARY SECRETARY OF STATE, OCT 1 6 2006 Respondent

Mr. Gourdouros has appealed from a decision of the Secretary of State whch imposed a license suspension of 18 months for operating under the influence. The

appeal has been briefed and oral argument was waived.

The petitioner was charged in the District Court with operating under the

influence and driving to endanger for alleged violations which occurred on September

21,2005. On September 30, 2005 a second incident occurred and he was again charged

in the District Court with violation of condition of release and operating under the

influence. Both cases involved prescription medication and neither involved alcohol

consumption. A bail condition of not driving a motor vehcle was imposed on October

3, 2005 following the second charge. On November 21, 2005 his bail was modified to a

prohibition on driving unless he was properly licensed whch he was. The cases were

transferred to the Superior Court.

On April 6, 2006 Mr. Gourdouros pled guilty to the two operating under the

influence charges and received separate sentences of a fine of $500 with surcharges and a ninety-day license suspension. The separate charges of driving to endanger and

violation of conditions of release were dismissed.

At the time of his sentencing Mr. Gourdouros was a 49-year-old gentleman with

no prior convictions for operating under the influence. At the time of h s arrest on

September 30, 2005 he had a charge pending against h m from September 21, 2005 but

no prior convictions. The Legislature has provided that, "For a person having no

previous OUI offense w i h n a 10-year period: (1)A fine of not less than $500 ..., (and)

(2) A court-ordered suspension of a driver's license for a period of 90 days ..." shall be

imposed. See 29-A M.R.S.A. §2411(5)(A).Since he had no convictions for previous OUI

offenses the court-ordered suspensions were fixed at exactly 90 days per offense, no

more and no less. The Legislature also provided at 29-A M.R.S.A. g2411 (5-B) that "The

Secretary of State may impose an additional period of suspension under section 2451,

subsection 3 ...."

Following h s pleas of guilty an abstract of each conviction was sent by the Clerk

of the Superior Court to the Secretary of State. The Secretary of State sent Mr.

Gourdouros a notice dated May 10, 2006 imposing a ninety-day suspension based on

the first incident. .There is no objection to that suspension. However by notice dated

May 16, 2006 the Secretary of State imposed a separate 18 month suspension noting

that, "You are hereby notified that a suspension for the period referenced above to run

concurrent with the court ordered suspension is imposed by the Secretary of State

because you have been previously convicted or adjudicated of Operating Under the

Influence ...." It is that suspension and the failure to give credit for the 48 days between

October 3, 2005 and November 21, 2005, when there was a no driving bail condition,

that are the subject of this appeal. The Secretary of State's powers regarding license suspensions, following receipt

of the court records establishing a conviction for operating under the influence, are

stated at 29-A M.R.S.A. §2451(3). The statute states,

3. Unless a longer period of suspension is otherwise provided by law and imposed by the court, the Secretary of State shall suspend the license of a person convicted of OUI for the following minimum periods:

A. Ninety days, if the person has one OUI conviction within a 10-year period;

B. Eighteen months, if the person has 2 OUI offenses within a 10-year period; . . .

For the purposes of this subsection, a conviction or suspension has occurred within a 10-year period if the date of the new conduct is within 10 years of a date of suspension or a docket entry of judgment of conviction.

In this case the Secretary of State examined the first conviction and determined

that h s was the first conviction of Mr. Gourdouros within 10 years and imposed a

ninety-day suspension. The Secretary of State then looked at the second conviction and

determined that there were now two convictions for OUI offenses within 10 years. The

"new conduct" of September 30,2005 is within 10 years of the docket entry of judgment

of conviction in April of 2006.

The Legslature has gven both the courts and the Secretary of State duties and

powers related to license suspensions following a conviction for operating under the

influence. Wl-ule those obligations are designed to work together each branch of

government has somewhat different duties and is controlled by different statutes with

different wordings.

The criminal penalties at 29-A M.R.S.A. 52411 have increased fines, license

suspensions and periods of incarceration based on the number of previous OUI

convictions. Mr. Gourdouros avoided a mandatory minimum fine of $700 and seven days in jail despite having committed two offenses because he had no previous OUI

offenses. At the court level he also avoided an 18-month suspension and received only

a second 90-day suspension. The Secretary of State is required to focus on the number

of convictions withn ten years not whether the person had convictions for previous

offenses at the time a new offense was committed. I find that the Secretary of State's

decision to impose an 18-month suspension based on the second conviction is fully

consistent with the statutory requirements and the Legislature's directives. Also see

Dana v. Secretary of State, 629 A.2d 48 (Me. 1993) and the Legislature's response to that

decision in recrafting and expanding the Secretary of State's suspension powers.

The second issue is whether the petitioner should receive credit for the 48 days

when he was prohbited from driving as a bail condition. His license was not

suspended at that time by the Secretary of State and could not have been suspended by

the Court as he had neither yet pled guilty nor yet been found guilty. Had he driven

during those 48 days he could not have been charged with operating after suspension

though he could have been charged with violation of condition of release, 15 M.R.S.A.

S1092. Also see 29-A M.R.S.A. §§2403,2453(6)(C) and 2458(2)(Q).

If the Secretary of State had the discretionary power to give Mr. Gourdouros

credit for that 48-day period the Secretary of State certainly could credit that time

without objection from h s court. There is, however, no statutory requirement that the

Secretary of State do so and the distinction between suspensions and bail requirements

matters. For example, if a defendant was charged with a serious motor vehcle offense

which ultimately led to a conviction and a suspension and the defendant motorist was

unable to make bail, the motorist could not argue that he was in effect suspended while

incarcerated pre-trial and receive a credit for that time. The entry is:

Decision of the Secretary of State of May 16, 2006 imposing an 18-month suspension is affirmed.

Dated: October 12,2006

aul A. Fritzsche Justice, Superior Court

PLAINTIFFS: Jeffrey S. Martin-Zdunczyk, Esq. PO Box 771 Kennebunk ME 04043-0771

DEFENDANT: Elizabeth J. Wyman, AAG 6 State House Station Augusta ME 04333-0006