Storer v. Secretary of State

• Court: Superior Court of Maine
• Decided: June 17, 2008
• Docket: KENap-07-66
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION qgC:KET NO. AP-p7-66 ! II / , ~ ~." J .. ./-- 1'- ,! ' ( .. i ,

GRANVILLE H. STORER, JR. v. DECISION AND ORDER

Petitioner

SECRETARY OF STATE, BUREAU OF MOTOR VEHICLES

Respondent

Pursuant to M.R. Civ. P. 80C, the petitioner seeks judicial review of the

respondent's final agency action. The hearing officer upheld the respondent's

suspension of his driver's license and commercial driver's license for a period of 18

months. R. Tab 5; 29-A M.R.S.A. §§ 2453 & 1253(2). For the following reasons, the

respondent's decision is affirmed.

On July 3, 2007, at 10:10 p.m. on Route 27 in Pittston, Trooper Christopher

stopped a vehicle because a headlight was not working. The driver, the petitioner,

stated he was on his way home from a celebration. He admitted he had one beer at

approximately 6:30 p.m. Trooper Rogers smelled the odor of intoxicants from

petitioner's facial area. R. Tab 7 at 5-7.

A Horizontal Gaze Nystagmus (HGN) test was administered. Trooper Rogers

and later Trooper Madore observed four of six clues. During the walk and turn test, the

petitioner did not walk heel to toe on several steps while walking out and returning.

During the one-leg stand test, the petitioner lost his balance after eighteen seconds and

put his leg down after twenty seconds. An intoxilyzer test was administered. The petitioner's actual test results were .095% at 10:47 p.m. and .082% at 10:50 p.m.,

averaged to a .08%. R. Tab at 7-9; 25; Ex. 2.

At the hearing, the petitioner presented the affidavit of Robert Morgner. R. Tab

7, Ex. 5. In the affidavit, Mr. Morgner stated that for "a .08% test result the range of

error is plus or minus .022% for a test range of .058% to .102%. R. Tab 7, Ex. 2 at 2. The

Hearing Examiner noted that the facts of the case were not applied to the potential test

range. R. Tab 5 at 1.

The petitioner argues that substantial evidence does not exist in the record to

support the finding that petitioner had a blood alcohol content of .08% or more. "A

party seeking review of an agency's findings must prove they are unsupported by any

competent evidence./I Maine Bankers Ass'n v. Bureau of Banking, 684 A.2d 1304, 1306

(Me. 1996). "Inconsistent evidence will not render an agency decision unsupported./I

Seider v. Board of Examiners of Psychologists, 2000 ME 206,

(citation omitted). The use of the HGN and other tests to "precisely quantify blood

alcohol content is improper."l State v. Taylor, 1997 ME 81,

record provides competent evidence, including the actual intoxilyzer test results, to

support the respondent's finding.

The entry is

The Respondent's Decision is AFFIRMED.

Date: June 17,2008 ancy Mills Justice, Superior Court

I"[T]he proper way to test for an exact blood alcohol level is by chemical analysis of blood, breath or urine." State v. Taylor, 1997 ME 81, c:n: 13, 694 A.2d 907, 912.

2 f Date Fi led ---±J101J-I-!01-101-1,pi0",-71--- Kennebec Docket No. AP07-66 County

Act i on __~_LP.c.eJ...t..LiJ...t..LillO..uD-.l..fl.lo..LT----">R.."e""'v--Li.t::ecww'-- _ 80C J. Mills

vs. ~ec of State. Bureau of Motor Vehicle Plaintiff's Attorney Defendant's Attorney Benjamin J. Smith, Esq. Gwendolyn ThOlnas. Esq. AAG 227 Water Street 6 State House Station P.O. Box 1051 Augusta,Maine 04333 Augusta, Maine 04332-1051

Date of Entry

10/11/07 Petition for Review of Final Agency Action, filed. s/Smith, Esq. 10/18/07 Petitioners Motion for Stay Pursuant to 5 M.R.S.A. 11004,Exhibit A and Order filed by B Smith.

10/23/07 10/22/07 :Appearance entered on behalf of Respondent the Secretary of State,Bureau of Motor Vehicle. filed by G Thomas AAG 11/2/07 10/31/07: Affidavit of Service by restricted delivery,return receipt request served on the Respondent on October 12,Z007 -andrfiled by B. Smith on 10/31/07

11/13/07 11/9/07: Order: After hearing this court hereby denied Petitioners Motin for Stay.Judge Marden Copies mailed to parties

11/19/07 11/15/07: Respondents motion to extend time to file opposition to Motion for Stay filed by W Thomas AAG 11 /16/07 Certified Record, filed. s/Thomas, AAG Notice ahd Briefing Schedule. mailed to attys. of record. 12/11/07 Respondent's Motion To Extend Time To File Opposition To Motion For Stay, withdrawn per phone call with Gwendolyn Thomas, AAG

12/21/07 Petitioner's Unopposed Motion To Enlarge Time Within Which To File Petitioner's Brief, filed. s/Smith, Esq.

12/27/07 ORDER, Mills, J (12/26/07) Petitioner must file brief by 1/14/08. Copy to attorneys.

2/14/08 Petitioner's Brief On Appeal Of The Decision Of The Bureau Of Motor Vehicles' Dated September 18, 2007, filed 1/11/08. s/Smith, Esq.

2/14/08 Brief Of Resp6ndent Secretary Of State, Bureau Of Motor Vehicles, filed 2/12/08. s/Thomas, AAG Date of Docket No. Entry

3/6/08 Letter requesting hearing on Petition For Review, filed 3/3/08. s/Smith, Esq.

3/21/08 Petitioner's Reply Brief To Brief Of Respondent Secretary Of State Bureau Of Motor Vehicles, filed 3/20/08. s/Smith, Esq.

6/17/08 DECISION AND ORDER, Mills, J. The Respondent's Decision is AFFIRMED. Copy mailed to attorneys of record. Copy mailed to Deborah Firestone, Garbrecht Law Library, and Donald Goss.