STATE OF MAINE SUPERIOR COURT HANCOCK, ss CIVIL ACTION DOCKET NO. AP-2005-01
JOSHUA LOWELL,
Petitioner
DECISION AND ORDER ON MATTHEW DUNLAP, APPEAL Secretary of State On behalf of the Bureau of Motor Vehicles, a state of Maine Agency, County of Kennebec, State of Maine
Respondent
This matter is before the court on appeal pursuant to 5 M.R.S.A. $9 11001-11008 (2004)
and Rule 80C of the Maine Rules of Civil Procedure from a decision of the Respondent,
Matthew Dunlap, Secretary of State (herein "Secretary") on behalf of the Bureau of
Motor Vehicles (herein "BMV"), suspending the Petitioner's, Joshua Lowell, driver's
license after finding that he had operated a motor vehicle with any amount of alcohol in
his blood pursuant while under the age of twenty-one pursuant to 29-A M.R.S.A. 9
2472(3)(B) ( 2004) and denying the Lowell's original petition.
Around midnight on November 6,2004, Officer Joshua Hardy of the Southwest
Harbor Police Department spotted a truck pull into a closed gas station. He observed that
the truck's registration was expired and asked the driver, Joshua Lowell, to produce his
driver's license. The license revealed that Lowell was under the age of twenty-one. The
Officer observed an open can of beer in the back of the truck and testified that he could smell alcohol on Lowell's breath. Further, Lowell freely admitted that he had consumed
four beers that night, the last beer being consumed approximately one hour before the
arrival of the officer. He indicated that he was planning to drive home that night. The
Officer advised Lowell that, being under the age of twenty-one, he was not permitted to
drive with any amount of alcohol in his blood. Lowell performed sobriety tests, but the
results are irrelevant here, as the degree of intoxication is immaterial under 29-A
M.R.S.A. 3 2472(3)(B) (2004).
On December 27, 2004, the Secretary suspended Lowell's driver's license
pursuant to 29-A M.R.S.A. 3 2472(B)(3) (2004), for operating a motor vehicle with any
amount of alcohol in his blood while being under the age of twenty-one. Lowell's
requested hearing was held on January 31,2005. Lowell's attorney did not dispute that
his client had any amount of alcohol in his blood or that he had not attained the age of
twenty-one. He limited his challenge to the issues of 1) whether there was probable
cause to believe that that Lowell had not attained the age of twenty-one and that he was
operating or attempting to operate a motor vehicle while having any amount of alcohol in
his blood and 2) whether Lowell had operated or attempted to operate a motor vehicle.'
Lowell's attorney was permitted to cross-examine Officer Hardy, but was interrupted by
hearing officer when he asked the Officer about the field sobriety tests.
WAYNE FOOTE: Did he have any mood changes or anything like that?
JOSHUA HARDY: No. He actually seemed very complacent, and
answered any questions I had no problems whatsoever.
WAYNE FOOTE: All right. You observed him walking about the area - -
1 This issue was never appealed to this court nor was it truly argued at the hearing. It is, therefore, waived. JOANNE BAUMRIND (hearing officer): Okay. I am going to stop you at
this point because we are here today under a 92472 (3) (B). And under
these - - under that statute and those issues, the officer isn't required to
make any - -actually any observations at all related to under the influence
or at a .08 or greater level.
The hearing officer ruled that the statutory burden of 9 2472(3)(B) had already been met
after the Officer testified and in the first paragraph of his report. The hearing officer
found that there was sufficient probable cause to believe that Lowell had operated a
vehicle at the time he had any amount of alcohol in his blood, that, by a preponderance of
the evidence, that Lowell was under the age of twenty-one, that he was the operator of the
vehicle and that he had consumed some amount of alcohol that was in his blood. The
hearing officer denied the petition and lifted the stay on the Lowell's suspension. This
appeal followed.
Discussion A. Standard of Review
The court's review of the Respondent's determination is very limited. Agency
rulings may be reversed or modified on appeal only if the court determines that they 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. 5 M.R.S.A 9 11007(4)(C) . 2004).
The court may not substitute its judgment for that of the agency merely because
the evidence could give rise to more than one result. Dodd v. Sec'y of State, 526 A.2d
583, 584 (Me. 1987). "The burden of proof clearly rests with the party seeking to overturn the decision of an administrative agency." Seven Islands Land Co. v. Maine
Land Use Regulation Comm'n, 450 A.2d 475,479 (Me. 1982). In cases where
conflicting evidence is presented, the Law Court has repeatedly held that such conflicts
are for the fact finder to resolve. Bean v. Maine Unemployment Ins. Comm'n, 485 A.2d I
630,634 (Me. 1984).
B. Applicable Law.
A juvenile provisional license is a license that is issued to a person who has not
yet attained the age of twenty-one years. 29-A M.R.S.A.5 2472(1) (2004). Section
2472(3)(B) (2004) requires the Secretary to suspend a juvenile provisional license of a
person who "[olperates a motor vehicle with any amount of alcohol in the blood."
Therefore, the relevant issues before the hearing officer under a section 2472(3) appeal
are whether Lowell was under the age of twenty-one, whether he had operated or
attempted to operate a motor vehicle and whether there was any alcohol in his blood.
Whether there was probable cause relates to the refusal to take a blood-alcohol test and is
not a arelevant issue under section 2472(3).
1. Maine and U.S. Constitution
At the hearing, Lowell did not dispute the issue of whether he had any amount of
alcohol in his blood. Tab 2, p. 9, Tab 5, p. 4. When Lowell attempted to cross-examine
the officer concerning intoxication indicators and the results of field sobriety tests, the
hearing officer terminated the questioning, because the actual level of intoxication is
irrelevant under the statute and Lowell was not arguing that he did not have any alcohol
in his blood. Nevertheless, Lowell argues he was denied the right to effective cross-
examination in violation of his due process rights as guaranteed by the Maine State
Constitution, Me. Const. Art I, $ 6-A, and the Fourteenth Amendment of the United
States Constitution. As such, he claims that the hearing officer's decision was affected
by bias or error of law and was arbitrary and capricious in violation of 5 M.R.S.A. $
1l 0 0 7 ( 4 ) ( ~ ) . ~
Maine follows Matthews v. Eldridge, 424 U.S. 319, 335 (1976), and utilizes a
three-prong test:
We look at the private interest that will be affected by the governmental
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STATE OF MAINE SUPERIOR COURT HANCOCK, ss CIVIL ACTION DOCKET NO. AP-2005-01
JOSHUA LOWELL,
Petitioner
DECISION AND ORDER ON MATTHEW DUNLAP, APPEAL Secretary of State On behalf of the Bureau of Motor Vehicles, a state of Maine Agency, County of Kennebec, State of Maine
Respondent
This matter is before the court on appeal pursuant to 5 M.R.S.A. $9 11001-11008 (2004)
and Rule 80C of the Maine Rules of Civil Procedure from a decision of the Respondent,
Matthew Dunlap, Secretary of State (herein "Secretary") on behalf of the Bureau of
Motor Vehicles (herein "BMV"), suspending the Petitioner's, Joshua Lowell, driver's
license after finding that he had operated a motor vehicle with any amount of alcohol in
his blood pursuant while under the age of twenty-one pursuant to 29-A M.R.S.A. 9
2472(3)(B) ( 2004) and denying the Lowell's original petition.
Around midnight on November 6,2004, Officer Joshua Hardy of the Southwest
Harbor Police Department spotted a truck pull into a closed gas station. He observed that
the truck's registration was expired and asked the driver, Joshua Lowell, to produce his
driver's license. The license revealed that Lowell was under the age of twenty-one. The
Officer observed an open can of beer in the back of the truck and testified that he could smell alcohol on Lowell's breath. Further, Lowell freely admitted that he had consumed
four beers that night, the last beer being consumed approximately one hour before the
arrival of the officer. He indicated that he was planning to drive home that night. The
Officer advised Lowell that, being under the age of twenty-one, he was not permitted to
drive with any amount of alcohol in his blood. Lowell performed sobriety tests, but the
results are irrelevant here, as the degree of intoxication is immaterial under 29-A
M.R.S.A. 3 2472(3)(B) (2004).
On December 27, 2004, the Secretary suspended Lowell's driver's license
pursuant to 29-A M.R.S.A. 3 2472(B)(3) (2004), for operating a motor vehicle with any
amount of alcohol in his blood while being under the age of twenty-one. Lowell's
requested hearing was held on January 31,2005. Lowell's attorney did not dispute that
his client had any amount of alcohol in his blood or that he had not attained the age of
twenty-one. He limited his challenge to the issues of 1) whether there was probable
cause to believe that that Lowell had not attained the age of twenty-one and that he was
operating or attempting to operate a motor vehicle while having any amount of alcohol in
his blood and 2) whether Lowell had operated or attempted to operate a motor vehicle.'
Lowell's attorney was permitted to cross-examine Officer Hardy, but was interrupted by
hearing officer when he asked the Officer about the field sobriety tests.
WAYNE FOOTE: Did he have any mood changes or anything like that?
JOSHUA HARDY: No. He actually seemed very complacent, and
answered any questions I had no problems whatsoever.
WAYNE FOOTE: All right. You observed him walking about the area - -
1 This issue was never appealed to this court nor was it truly argued at the hearing. It is, therefore, waived. JOANNE BAUMRIND (hearing officer): Okay. I am going to stop you at
this point because we are here today under a 92472 (3) (B). And under
these - - under that statute and those issues, the officer isn't required to
make any - -actually any observations at all related to under the influence
or at a .08 or greater level.
The hearing officer ruled that the statutory burden of 9 2472(3)(B) had already been met
after the Officer testified and in the first paragraph of his report. The hearing officer
found that there was sufficient probable cause to believe that Lowell had operated a
vehicle at the time he had any amount of alcohol in his blood, that, by a preponderance of
the evidence, that Lowell was under the age of twenty-one, that he was the operator of the
vehicle and that he had consumed some amount of alcohol that was in his blood. The
hearing officer denied the petition and lifted the stay on the Lowell's suspension. This
appeal followed.
Discussion A. Standard of Review
The court's review of the Respondent's determination is very limited. Agency
rulings may be reversed or modified on appeal only if the court determines that they 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. 5 M.R.S.A 9 11007(4)(C) . 2004).
The court may not substitute its judgment for that of the agency merely because
the evidence could give rise to more than one result. Dodd v. Sec'y of State, 526 A.2d
583, 584 (Me. 1987). "The burden of proof clearly rests with the party seeking to overturn the decision of an administrative agency." Seven Islands Land Co. v. Maine
Land Use Regulation Comm'n, 450 A.2d 475,479 (Me. 1982). In cases where
conflicting evidence is presented, the Law Court has repeatedly held that such conflicts
are for the fact finder to resolve. Bean v. Maine Unemployment Ins. Comm'n, 485 A.2d I
630,634 (Me. 1984).
B. Applicable Law.
A juvenile provisional license is a license that is issued to a person who has not
yet attained the age of twenty-one years. 29-A M.R.S.A.5 2472(1) (2004). Section
2472(3)(B) (2004) requires the Secretary to suspend a juvenile provisional license of a
person who "[olperates a motor vehicle with any amount of alcohol in the blood."
Therefore, the relevant issues before the hearing officer under a section 2472(3) appeal
are whether Lowell was under the age of twenty-one, whether he had operated or
attempted to operate a motor vehicle and whether there was any alcohol in his blood.
Whether there was probable cause relates to the refusal to take a blood-alcohol test and is
not a arelevant issue under section 2472(3).
1. Maine and U.S. Constitution
At the hearing, Lowell did not dispute the issue of whether he had any amount of
alcohol in his blood. Tab 2, p. 9, Tab 5, p. 4. When Lowell attempted to cross-examine
the officer concerning intoxication indicators and the results of field sobriety tests, the
hearing officer terminated the questioning, because the actual level of intoxication is
irrelevant under the statute and Lowell was not arguing that he did not have any alcohol
in his blood. Nevertheless, Lowell argues he was denied the right to effective cross-
examination in violation of his due process rights as guaranteed by the Maine State
Constitution, Me. Const. Art I, $ 6-A, and the Fourteenth Amendment of the United
States Constitution. As such, he claims that the hearing officer's decision was affected
by bias or error of law and was arbitrary and capricious in violation of 5 M.R.S.A. $
1l 0 0 7 ( 4 ) ( ~ ) . ~
Maine follows Matthews v. Eldridge, 424 U.S. 319, 335 (1976), and utilizes a
three-prong test:
We look at the private interest that will be affected by the governmental
action; we consider the risk of an erroneous deprivation of that interest
through the procedures that were used and whether there is value to adding
or substituting other procedural safeguards; and we examine the
governmental interest and what burden, if any, additional or substitute
procedures would involve.
Guardianship of K-M, 2005 ME 8, g 23,866 A.2d 106, 113 (citing In re Amberley D.,
2001 ME 87,g 1 1,775 A.2d 1158, 1163; Guardianship of Hughes, 1998 ME 186,g 9,
715 A.2d 921-22. See also State v. Stade, 683 A.2d 164, 166 (Me. 1996). The Law
Court stated in Stade that the activities constituting constitutional due process violations
must be "deprivations of life, liberty, or property without 'fundamental fairness' through
governmental conduct that offends the community's sense of justice." Stade, 683 A.2d at
166.
2 In addition. an erroneous evidentiary ruling could also fall under the "made upon unlawful procedure" basis for reversing or modifying the BMV's decision. 5 M.R.S.A. § 11007(4)(C)(3). The parties agree that a suspension of a driver's license is sufficient to meet the
first prong and agree that there is no significant burden at stake in regards to the third
prong. The issue is then whether the hearing officer's ruling that did not allow Lowell to
question the officer concerning the indicia of intoxication created a risk of erroneous
deprivation of the his liberty and property interest in his driver's license that was
fundamentally unfair and offensive to the community's sense of justice.
No deprivation of Lowell's due process rights occurred in this case. There was no
risk of an erroneous deprivation , because the prohibited line of questioning was
irrelevant to the relevant issues under section 2472(3) and because Lowell admitted
having alcohol in his blood. He was permitted wide latitude in his cross-examination,
and simply was not allowed to question the officer concerning any indicia of intoxication,
as the actual degree of intoxication was irrelevant under the statute. Lowell had admitted
that he had alcohol in his blood and did not dispute the fact at the hearing. The hearing
officer did not violate Lowell's due process rights, as there was no risk of erroneous
deprivation.
2. Maine Administrative Procedures Act
Lowell also argues that by refusing to allow his attorney from engaging in cross-
examination regarding the indicia of alcohol consumption, the hearing officer violated the
Maine Administrative Procedures Act. 5 M.R.S.A. 8 9056(2) ( 2004). The Act states
that, "unless otherwise limited by the agency to prevent repetition or unreasonable delay
in proceedings, every party shall have the right to present evidence and arguments on all
issues, and at any hearing to call and examine witnesses and to make oral cross-
examination of any person present and testifying." Id. (emphasis added). The court finds that that the hearing officer acted appropriately under the Act by
limiting cross-examination to only relevant issues as exploration of such issues would
unreasonably delay the proceedings. Further, a court should avoid results that are absurd,
inconsistent, unreasonable, or illogical. International Paper Co. v. Bd. of Envtl. Prot.,
629 A.2d 597, 599-600 (Me. 1993). To interpret the Act to define "all issues" to include
irrelevant issues would yield an illogical, unreasonable result. The hearing officer did not
violate the Act.
CONCLUSION
For the foregoing reasons, the court affirms the Respondent's decision to suspend
the Petitioner's license pursuant to 29-A M.R.S.A. § 2472(3) and to limit cross-
examination.
Accordingly, the entry is:
Decision of the Respondent, Matthew Dunlap, on behalf of the Bureau of Motor Vehicles
is AFFIRMED.
The Clerk may incorporate this Decision and Order into the docket by reference.
P J tice, Maine Superior Court
FILED & ENTERED SEP 1 3 2005 SUPERIOR COURT HANCBCK COUNTY