Morgan v. Secretary of State

• Court: Superior Court of Maine
• Decided: June 19, 2019
• Docket: CUMap-19-005
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT

Cumberland, ss.

JOHN MORGAN

Petitioner

V. Docket No. CUMSC-AP-19-005

SECRETARY OF STATE

DECISION AND JUDGMENT

This case presents an appeal under Rule SOC of the Maine Rules of Civil

Procedure, in which petitioner John Morgan challenges a decision of the respondent

Maine Secretary of State suspending his driver's license.

The parties have filed briefs and the court elects to decide the case without oral

argument. See M.R. Civ. SOC(l) (oral argument to be scheduled "[u]nless the court

otherwise directs." See also Lindemann v. Comm'n on Governmental Ethics & Election

Practices, 2008 ME 187, ,r26, 961 A.2d 5S8 (Rule SOC permits court to direct that oral

argument not be scheduled).

Based on the entire record, the court denies the appeal and grants judgment to

the Respondent.

Background

On September 22, 2018, Officer Brandon Curtis of the Brunswick Police

Department completed a report to the Maine Secretary of State that Petitioner John

Morgan had operated a motor vehicle on September 20, 2018 with an alcohol level of

Plaintiff's Attorney: Matthew Bowe, Esq. 1 Defendant's Attorney: Donald Macomber, AAG 0.08 grams of alcohol or more per 100 milliliters of blood or 210 liters of breath. See

Record Ex. 1.1 See also 29-A M.R.S. § 24•81(1) (procedure for officer's report of elevated

alcohol level). The report was based on the result of an Intoxilizer test administered

after Mr. Morgan had been placed under arrest on September 20, 2018, indicating Mr.

Morgan's alcohol level to be 0.11 grams. Record Ex. 7. In response, the Secretary of

State sent Mr. Morgan a Notice of Suspension and Opportunity for Hearing. See

Record Ex. 8. Mr. Morgan requested a hearing.

The hearing was held February 20, 2019. The hearing transcript is Exhibit 5 in

the administrative record. Mr. Morgan did not attend the hearing, but his attorney,

Matthew Bowe, and a witness for Mr. Morgan did attend, as did Officer Curtis.

At the outset, Hearing Officer Tucker indicated that his understanding that Mr.

Morgan's challenge to the suspension was limited to the issue whether Mr. Morgan in

fact operated a motor vehicle with an excessive alcohol level, meaning that Mr. Morgan

was not challenging the existence of probable cause for the arrest. See Record Ex. 5 at

3; see also 29-A M.R.S. § 2453(8) (issues at administrative hearing).

Officer Curtis testified regarding his administration of the Intoxilizer test and

the result obtained. See Record Ex. 5 at 3-13. Attorney Bowe questioned the officer

about the contents of Mr. Morgan's mouth before and during the test. See id.at 6-13.

In response to one question, the officer indicated that Mr. Morgan had told him he had

been to the dentist earlier in the day. See id. at 10. After the officer's testimony,

1 Record references are to the administrative record on appeal filed with the court.

2 attorney Bowe presented the testimony of Mr. Morgan's dentist, Kevin Wilson, via

telephone. Dr. Wilson testified that Mr. Wilson had undergone a dental cleaning by a

dental hygienist on September 20, 2018, and that he had bled extensively from the

gums during the cleaning. Id. at 14-34. Once the dentist's testimony was complete,

the hearing officer and attorney Bowe asked Officer Curtis a few more questions about

whether he had noticed any blood or bleeding during the Intoxilizer test, and the officer

said he had not. Id. at 35-36.

Attorney Bowe's closing argument focused on the provision of the Intoxilizer

manual indicating that the presence of blood in the mouth of a person undergoing the

test can compromise the validity of the test result. Id. at 37-38. Attorney Bowe pointed

out that the officer did not doublecheck the state of Mr. Morgan's mouth, even after

Mr. Morgan had disclosed that he had visited the dentist earlier in the day.

Hearing Officer Tucker denied the petition on the ground that there was no

evidence that Mr. Morgan was still bleeding, or had any blood in his mouth, at the time

of the Intoxilizer test. The hearing officer also noted his understanding of the

Intoxilizer manual as referring to oral surgery rather than a teeth cleaning. See id. at

38-40.

Mr. Morgan took this timely appeal.

Anal,ysis

When the Superior Court considers an appeal, the court reviews whether the

hearing officer abused his or her discretion, committed an error oflaw, or made findings

not supported by substantial evidence in the record. Davric Maine Corp. v. Maine

3 Harness Racing Comm'n, 1999 ME 99, ~ 7, 732 A.2d 289. Substantial evidence is

defined as "such relevant evidence as a reasonable mind might accept as adequate to

support the resulting conclusion." Lewiston Daily Sun v. Maine Unemployment Ins.

Comm'n, 1999 Me 90, ~ 7, 733 A.2d 344 (citation omitted). "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

4•75, 479 (Me. 1982) (citation omitted).

In this case, the testimony of the officer, together with the evidence that the

Intoxilizer test yielded a valid result, constitute substantial evidence sufficient to

support the decision. The Petitioner's effort to cast doubt on the validity of the test

result was based on speculation, as the hearing officer indicated.

IT IS HEREBY ORDERED:

1. The decision of Respondent Secretary of State is affirmed. The Petitioner's

appeal is denied.

2. Judgment is hereby granted on the appeal to the Respondent.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Decision and Judgment by reference in the docket.

Dated June 18, 2019

A. M. Horton, Justice