Goyet v. Secretary of State

• Court: Superior Court of Maine
• Decided: April 16, 2013
• Docket: CUMap-13-002
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. A·.~-13-~92/ l KAREN GOYET, 't J:Dw - r t.J ~· 4-/ljl -a..o 13

Plaintiff

v. ORDER

SECRETARY OF STATE, t2-:\ 1, Z013 Defendant RECEIVED Before the court is Karen Go yet's appeal from a December 11, 2012 decision

upholding Goyet' s administrative suspension for failing to submit to and complete a

breath test to determine if she operated a motor vehicle while having an alcohol level of

.08 grams or more.

There is no dispute that although Ms. Goyet blew intermittently into the

intoxilyzer tube, the intoxilyzer registered an insufficient sample and Officer Jeffrey

Ruth eventually reported that Ms. Goyet failed to submit to and complete the test. (R.

Tab 6).

The hearing examiner upheld the suspension, concluding that Officer Ruth did

all he could reasonably have been expected to do to offer Goyet an opportunity to

submit to and complete the test. (R. Tab 3). Ms. Goyet contends that because she was

upset and crying and was having difficulty catching her breath- facts for which there is

evidentiary support in the record- she did not willfully fail to complete the test.

One of the legal issues presented is whether, under the statute, a failure to

submit to and complete a test must be willful before a suspension can be imposed.

Under 29-A M.R.S. § 2521(1) drivers have a duty "to submit to and complete" a test if

there is probable cause to believe they have operated a motor vehicle while under the influence. The Secretary of State shall immediately suspend the license of a person

"who fails to submit to and complete a test." 29-A M.R.S. § 2521(5). There is no statutory

language in either provision specifying that the failure must be "willful."

Counsel for Ms. Goyet argues with some force that language in State v. Chase,

2001 ME 168

case the Law Court stated:

In sum, limitations on the use of evidence of the refusal are tailored to address those circumstances in which a defendant does not cooperate in obtaining evidence of his blood- alcohol level or otherwise fails to take the test. With an intended purpose of protecting drivers from unwittingly incurring the more- draconian penalties attendant to a refusal, the informed consent laws simply do not speak to the admissibility of a test that has, in fact, been completed.

Id. (emphasis added)

This language does not unequivocally support Ms. Goyet' s position. Although

the Court referred to a defendant who "does not cooperate," it included within the

same category a defendant who "otherwise fails to take the test." This suggests that the

penalties may apply to a driver is not uncooperative but who for some other reason fails

to complete a test. While the following sentence refers to drivers who "unwittingly"

incur the penalties of a refusal, that sentence appears to be directed to persons who are

not warned about the consequences of a refusal and does not necessarily speak to

whether a failure to complete a test would be excused by an inability to provide a

sufficient sample despite a good faith effort to do so.

Nevertheless, the court concludes that where a failure to complete a test results

from an inability to provide a sufficient sample despite a good faith effort, the

applicable statute should not be interpreted to impose a suspension. The legislative

2 language - while not requiring an outright "refusal" - is aimed at drivers who are

uncooperative rather than at drivers who are making a good faith effort to comply.

In this case the hearing officer did not make a finding as to whether Ms. Goyet

had willfully failed to complete the test, considering it sufficient that Officer Ruth had

given her a reasonable opportunity to provide a test result. See State v. Landry, 428

A.2d 1204, 1206 (Me. 1981).1

There is evidence in the record that would support the conclusion that Ms. Goyet

was not acting on purpose when she failed to provide a sufficient sample. (R. Tab 5 at

18).Z At the same time officer Ruth also testified that she had blown correctly when he

was instructing her on how to take the test and that he felt she could have provided a

complete test "if she wanted." (R. Tab 5 at 25).

Because the hearing officer did not make a finding as to whether Ms. Goyet's

failure to complete the test resulted from an inability to do so under the circumstances

despite a good faith effort on her part, the case is remanded to the Bureau of Motor

Vehicles for further findings. Consistent with 29-A M.R.S. § 2472(5), Ms. Goyet's

suspension should be stayed pending remand. 3

1 The issue in Landry was whether the defendant had been deprived of an opportunity to obtain exculpatory evidence, not whether a cooperative defendant could nevertheless be suspended for failure to complete a test. As the Law Court observed, Landry "was uncooperative from the outset." Id. 2 In stating that he did not think she "did it on purpose," however, the officer may have been referring to whether Ms. Goyet seemed to start blowing inconsistently only when the intoxilyzer began to register a tone and whether she was aware that a tone meant that she was providing the consistent breath necessary to register a sample. 3 This remand does not necessarily require a further hearing if the hearing officer can issue further findings based on the existing record. However, the hearing officer would have the discretion to hold a further hearing if the hearing officer determines that such a hearing would be necessary to decide the appeal on remand.

3 The entry shall be:

This case is remanded to the Bureau of Motor Vehicles for further findings in

light of this opinion. The license suspension imposed by the Bureau of Motor Vehicles

is stayed pending the decision by the hearing officer upon remand. The Clerk is

directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: April /.2_, 2013

Thomas D. Warren Justice, Superior Court

4 Date Filed _ _1_-_10_-_1_3_ __ CUMBERLAND 13_-_2_ _ __ Docket No. _ _A_P_-_ County

• Action ---=80.::..C::::......:A:.:::P:....:P:...::E=A=L=-----------

KAREN GOYET STATE OF MAINE BUREAU OF MOTOR VEHICLES

VS.

Plaintiff's Attorney Defendant's Attorney

ROBERT LEVINE ESQ DONALD MACOMBER, ESQ. 17 SOUTH ST OFFICE OF THE ATTORNEY GENERAL PORTLAND ME 04101 6 STATE HOUSE STATION AUGUSTA, ME 04333-0006

Date of Entry