Ricci v. State of Maine

• Court: Superior Court of Maine
• Decided: January 17, 2007
• Docket: KENap-06-45
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. AP706-45 k s - - ) < r : p J - ; I% T ~ j17 I ~ ; )

JOHN A. RICCI, Petitioner

DECISION ON APPEAL

STATE OF MAINE, SECRETARY OF STATE, BUREAU OF MOTOR VEHICLES,

Respondent

Ths matter comes before the court on appeal pursuant to M R . Civ. P. 80C from a

decision of an Administrative Hearing Examiner within the Bureau of Motor Vehcles.

Since the court finds no error of law, abuse of discretion or findings unsupported by

substantial evidence in the record, the appeal will be denied.

Background

On November 8, 2005, petitioner John Ricci was stopped by a law enforcement

officer as the result of a "be on lookout for" message identifying a vehicle with a

registration plate very similar to that on the vehicle kcci was driving. The officer

smelled alcohol coming from the vehicle, noted the petitioner's glassy, blood shot eyes

and the petitioner admitted having two cocktails with dinner at the restaurant he and

his party had just left. The petitioner got out of his vehicle without putting it in park,

causing the petitioner to scramble back in to control the vehcle. The petitioner's

performance on field sobriety tests, including an HGN test, were negative. The

petitioner was then tested as having a blood-alcohol content of .lo%.

The hearing before the Bureau's Hearing Examiner was an appeal of the administrative suspension of his right to operate previously determined by the Bureau staff. As identified by the examiner, the two issues involved were whether there was

probable cause to believe that the petitioner had been operating a motor vehicle with an

excessive blood-alcohol level, and whether the petitioner did in fact have an excessive

blood-alcohol level. After analyzing the facts summarized above, plus the testimony of

the chemist rendering his expert opinion based upon information provided by the

petitioner, the hearing examiner found against the petitioner on both issues and

ordered that the suspension become effective. The present appeal followed.

Discussion

On the issue of probable cause, the petitioner argues that the examiner's finding

was unsupported by substantial evidence on the whole record. However, on the

contrary, the court finds that the examiner set forth numerous factors, supported by

evidence in the record, that the petitioner was under the influence, including smell,

physical observation, testing and the petitioner's own admission of alcohol use. The

reference by the examiner to State v. TNebster, 2000 ME 115, 754 A.2d 976, was to explain

how probable cause could be found even though the officer did not notice any erratic

operation of the vehicle. As stated in Webster, "A reasonable suspicion to support

probable cause can exist independent of any evidence of actual impaired driving." See

State v. Eastman, 1997 NIE 39, ¶ 9, 691 A.2d 179, 182; State v. Wood, 662 A.2d 919, 920-921

(Me. 1995)". Id. ¶ 7.

With regard to the second issue - actual impairment - the hearing examiner had

before him the actual test result from the intoxilyzer showing .lo% BAC. As the

examiner noted, h s test result is accorded prima facie weight pursuant to 29-A M.R.S.A.

§ 2431. The petitioner attempted to attack this test result at hearing and on appeal by

asking the chemist to extrapolate what the test result should have been based upon the

testimony of the petitioner himself and other members of h s dinner party. The net result of this testimony was that if one were to believe the testimony of the petitioner's

witnesses and applied scientific principles of analysis, the blood-alcohol level would

have been below .08%. However, the accuracy of the chemist's opinion testimony is

limited to the accuracy of the testimony and, given the examiner's opportunity to judge

the credibility of the witnesses first-hand and the conflict of that opinion with the

intoxilyzer result, the examiner discounted the opinion testimony and went with the

test result. This conclusion is based upon the examiner's own judgment of witness

credibility and is clearly supported by substantial evidence of the record. The fact that

testimony by the defendant's witnesses was not rebutted does not mean that it has to be

believed.

Having found no error of law, abuse of discretion or findings unsupported by

the evidence of record and sufficiently explained in the opinion, the entry will be:

The decision of the respondent Bureau is AFFIRMED.

Dated: January 17 ,2007 / S. Kirk Studstrup Justice, Superior Court Date Filed 07-27-06 KENNEBEC - Docket No. _AP-06-45 County

Action PETITION FOR REVIEW 80C APPEAL 1

J. STUDSTRUP

I JOHN RICCI VS. SECRETARY OF STATE BUREAU OF M.V. -- 1 Plaintiff's Attorney Defendant's Attorney LOUIS SHIRO, ESQ Kelly L. Turner, AAG PO BOX 706 6 State House Station WATERVILLE, ME 04903-0706 Augusta, Maine 04333-0006

Entry 07-27-06 Received and filed by Louis Shiro, Esq. on behalf of Petitioner, A I Petition for Review 80c appeal and filing fee of $120.00. 1 8/4/06 / Letter entering appearance, filed. slTurner, AAG 1 8/23/06 1 Certified Record, filed. s/Turner, AAG. I1 10/2/06 I1 Petitioner's Notice of briefing schedule mailed to attys of record. Brief on Appeal, filed. s/Shiro, Esq.

1 10/12/06 1 Brief of Respondent Bureau of Motor Vehicles, filed. s/Turner, AAG I I.

sent to altozr%eysof rec~rd.

I 12/18/06

12/27/06 I Motion for Continuance, filed. s/Shiro, Esq. Proposed Order, filed. ORDER ON MOTION FOR CONTINUANCE, Studstrup, J. Case reset for 1/3/07 at 11:00 a.m. Copies mailed to attys of record. 1/18/07 DECISION ON APPEAL, Studstrup, J. (Dated 1/17/07) The decision of the respondent Bureau is AFFIRMED. Copies mailed to attys of record. Copies mailed to Deborah Firestone, Garbecht Library and Goss.