STATE OF MAINE SUPERIOR COURT - s AfY\ '"" - A- L7 -- 7/ .: 0 I Lf Sagadahoc, ss.
JEAN WOLKENS
Petitioner
v. Docket No. BATSC-AP-13-003
STATE OF MAINE SECRETARY OF STATE
Respondent
DECISION AND JUDGMENT
Pursuant to M.R. Civ. P. 80C, Petitioner Jean Wolkens appeals from a decision
of a hearing officer for the Bureau of Motor Vehicles, Office of the Secretary of State,
imposing an administrative suspension of her license for operating under the influence.
Oral argument was held today.
Background
Petitioner's license was suspended following two incidents of alleged driving
under the influence. In the first incident, on December 16, '2015, officers from the
Topsham Police Department arrived at the scene of a car accident. (Rl. Tab 6, 5.) Once
at the scene, officers observed Wolkens, seemingly intoxicated, trying to get her car out
of a ditch. (R1 Tab 6, 4.) Rescue personnel helped Wolkens out of her car and
transported her to Midcoast Hospital. (R1 Tab 6, 4.) At the hospital, Wolkens
consented to the police's request to draw blood. (R1 Tab 6, 5.)
The second incident occurred on March 7, '2015. Topsham Police responded to a
report from a citizen that a woman who had been driving erratically near Woodside
Elementary School. (R'2 Tab 6, 4-6.) When officers arrived on the scene, they observed Wolkens lying on the ground next to her car and impaired to the point that she had
difficulty answering questions. (R2 Tab 6, 3.) Wolkens was transported to Midcoast
Hospital, and an officer had hospital staff draw a blood sample. 1 (R2 Tab 6, 6.)
After each of these incidents, the police delivered the blood samples to the Maine
Health and Environmental Testing Laboratory (MHETL). (R1 Tab 6, 5; R2 Tab 6, 7.)
In both instances, MHETL issued certificates of alcohol analysis that stated that lab
analyst Stephen Pierce conducted the analysis. (R1 Tab 7, 1; R2 Tab 7, 2.) The
certificates from the December and March incidents showed a blood alcohol level of 0.24
grams and 0.29 grams per 100 milliliters ofblood respectively. (R1 Tab 7, 1: R2 Tab 7,
2.) Both certificates bear what purports to be Stephen Pierce's signature. Both also
state that Mr. Pierce personally appeared before notary public Judy Webber and swore
that he was certified to perform blood alcohol analysis and that the results were
accurate as reported. (R1 Tab 7, 1: R2 Tab 7, 2.)
The responding police officers forwarded their reports of these incidents to the
Secretary of State, and the Secretary of State's office issued a notice of suspension and
opportunity for a hearing to Wolkens on April 30, 2013. (R1 Tab 8, 1; R2 Tab 8, 1.)
Wolkens requested a hearing, which was scheduled for May 21, 2013.
Prior to the hearing, Wolkens' attorney received a letter from Assistant District
Attorney Jonathan Liberman stating:
It has come to the State's attention that the Certificate ofDrug Analysis in this matter may have been notarized in a manner inconsistent with the requirement ofpersonal appearance as detailed in the Secretary ofState's "Notary Public Handbook and Resource Guide." Please contact me as soon as possible to discuss the available options for addressing this circumstance.
(R1 Tab 9, 1.)
1 As a result of the December 2012 incident, Wolkens was subject to a bail condition requiring her to
submit to random search and testing for possession or use of alcoholic beverages. (R2 Tab 6, 5.)
2 ADA Liberman's letter is dated April23, 2013, almost a month before the
hearing.
At the May 21, 2013 hearing, petitioner Wolkens participated through her
attorney, but was not herselfpresent. (R1 Tab 5, 3.) The hearing officer established
that the petitioner did not dispute any of the facts in the police reports, and she
dismissed the police officer who was there to testifY. (Rl Tab 5, 4-5.) However,
Wolkens's attorney did dispute the admissibility of the certificates of alcohol analysis
based on the Liberman letter. (R1 Tab 5, 4.) The petitioner's argument, in essence,
was that, because the certificates of alcohol analysis were not notarized properly, they
could not be admitted into evidence. After a lengthy exchange with Wolkens's
attorney on the issue (R1 Tab 5, 7-15), the hearing officer accepted the certificates into
evidence and relied on them to uphold the license suspension. (Rl Tab 5, 15-16.) In
doing so, the hearing officer made it clear that she was not admitting the certificates as
prima facie evidence of the petitioner's blood alcohol level (R1 Tab 5, 14.), but only as
evidence to be considered along with the other evidence in the record. (R1 Tab 5, 14_ 1 6.) The hearing officer also distinguished between the criminal context and the
administrative context. (R1 Tab 5, 14-16.)
Wolkens appealed t th' o IS court on June 19 201.'3 Th 1 . . ' · e so e Issue Is whether the certificates were properly adm. tt d . h . I e mto t e hearmg record.
Analysis l. Standard ofReview
In an 80C appeal, the Court reviews "the agency's d . . r. eciszon lOr errors of law abuse of discretion fi d' ' , or m mgs not supported by substantial evidence in the record." Nicholson v. Bd. ifLicensure in Med., 2007 ME 141 IT 7 , 11 , 9S5 A.2d 660 (quoting FPL
3 Energy Me. Hydro LLC v. Dep't ofEnvtl. Prot., 2007 ME 97, IJ 13,926 A.2d 1197). The
Court "must affirm findings of fact if they are supported by substantial evidence in the
record, even if the record contains inconsistent evidence or evidence contrary to the
result reached by the agency." Friends ofLincoln Lakes v. Bd. ofEnvtl. Prot., 2010 ME 18,
1J 13, 989 A.2d 1128. 2. Admissibility of Certificates
Petitioner argues that the hearing officer erred in admitting the certificates at
the hearing because the analyst may not have personally appeared before the notary
when signing them. Under Maine's Administrative Procedure Act, a hearing officer
shall admit evidence "if it is the kind of evidence upon which reasonable persons are
accustomed to rely in the conduct of serious affairs." 5 M.R.S.A. § 9057(2) (2012). The
motor vehicle code contains the following provisions with respect to alcohol analysis:
The following provisions apply to the analysis ofblood, breath and urine, and the use of that analysis as evidence. A. A person certified in accordance with section 2524 conducting a chemical analysis ofblood, breath or urine to determine an alcohol level or drug concentration may issue a certificate stating the results of the analysis. B. A person qualified to operate a self-contained, breath-alcohol testing apparatus may issue a certificate stating the results of the analysis. C. A certificate issued in accordance with paragraph A or B, when duly signed and sworn, is prima facie evidence that: (1) The person taking the specimen was authorized to do so; (2) Equipment, chemicals and other materials used in the taking of the specimen were of a quality appropriate for the purpose of producing reliable test results; (3) Equipment, chemicals or materials required to be approved by the Department of Health and Human Services were in fact approved; (4) The sample tested was in fact the same sample taken from the defendant; and (5) The alcohol level or drug concentration in the blood of the defendant at the time the sample was taken was as stated in the certificate.
29-A M.R.S.A. § 2431(2) (2012).
4 In Abrahamson v.
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STATE OF MAINE SUPERIOR COURT - s AfY\ '"" - A- L7 -- 7/ .: 0 I Lf Sagadahoc, ss.
JEAN WOLKENS
Petitioner
v. Docket No. BATSC-AP-13-003
STATE OF MAINE SECRETARY OF STATE
Respondent
DECISION AND JUDGMENT
Pursuant to M.R. Civ. P. 80C, Petitioner Jean Wolkens appeals from a decision
of a hearing officer for the Bureau of Motor Vehicles, Office of the Secretary of State,
imposing an administrative suspension of her license for operating under the influence.
Oral argument was held today.
Background
Petitioner's license was suspended following two incidents of alleged driving
under the influence. In the first incident, on December 16, '2015, officers from the
Topsham Police Department arrived at the scene of a car accident. (Rl. Tab 6, 5.) Once
at the scene, officers observed Wolkens, seemingly intoxicated, trying to get her car out
of a ditch. (R1 Tab 6, 4.) Rescue personnel helped Wolkens out of her car and
transported her to Midcoast Hospital. (R1 Tab 6, 4.) At the hospital, Wolkens
consented to the police's request to draw blood. (R1 Tab 6, 5.)
The second incident occurred on March 7, '2015. Topsham Police responded to a
report from a citizen that a woman who had been driving erratically near Woodside
Elementary School. (R'2 Tab 6, 4-6.) When officers arrived on the scene, they observed Wolkens lying on the ground next to her car and impaired to the point that she had
difficulty answering questions. (R2 Tab 6, 3.) Wolkens was transported to Midcoast
Hospital, and an officer had hospital staff draw a blood sample. 1 (R2 Tab 6, 6.)
After each of these incidents, the police delivered the blood samples to the Maine
Health and Environmental Testing Laboratory (MHETL). (R1 Tab 6, 5; R2 Tab 6, 7.)
In both instances, MHETL issued certificates of alcohol analysis that stated that lab
analyst Stephen Pierce conducted the analysis. (R1 Tab 7, 1; R2 Tab 7, 2.) The
certificates from the December and March incidents showed a blood alcohol level of 0.24
grams and 0.29 grams per 100 milliliters ofblood respectively. (R1 Tab 7, 1: R2 Tab 7,
2.) Both certificates bear what purports to be Stephen Pierce's signature. Both also
state that Mr. Pierce personally appeared before notary public Judy Webber and swore
that he was certified to perform blood alcohol analysis and that the results were
accurate as reported. (R1 Tab 7, 1: R2 Tab 7, 2.)
The responding police officers forwarded their reports of these incidents to the
Secretary of State, and the Secretary of State's office issued a notice of suspension and
opportunity for a hearing to Wolkens on April 30, 2013. (R1 Tab 8, 1; R2 Tab 8, 1.)
Wolkens requested a hearing, which was scheduled for May 21, 2013.
Prior to the hearing, Wolkens' attorney received a letter from Assistant District
Attorney Jonathan Liberman stating:
It has come to the State's attention that the Certificate ofDrug Analysis in this matter may have been notarized in a manner inconsistent with the requirement ofpersonal appearance as detailed in the Secretary ofState's "Notary Public Handbook and Resource Guide." Please contact me as soon as possible to discuss the available options for addressing this circumstance.
(R1 Tab 9, 1.)
1 As a result of the December 2012 incident, Wolkens was subject to a bail condition requiring her to
submit to random search and testing for possession or use of alcoholic beverages. (R2 Tab 6, 5.)
2 ADA Liberman's letter is dated April23, 2013, almost a month before the
hearing.
At the May 21, 2013 hearing, petitioner Wolkens participated through her
attorney, but was not herselfpresent. (R1 Tab 5, 3.) The hearing officer established
that the petitioner did not dispute any of the facts in the police reports, and she
dismissed the police officer who was there to testifY. (Rl Tab 5, 4-5.) However,
Wolkens's attorney did dispute the admissibility of the certificates of alcohol analysis
based on the Liberman letter. (R1 Tab 5, 4.) The petitioner's argument, in essence,
was that, because the certificates of alcohol analysis were not notarized properly, they
could not be admitted into evidence. After a lengthy exchange with Wolkens's
attorney on the issue (R1 Tab 5, 7-15), the hearing officer accepted the certificates into
evidence and relied on them to uphold the license suspension. (Rl Tab 5, 15-16.) In
doing so, the hearing officer made it clear that she was not admitting the certificates as
prima facie evidence of the petitioner's blood alcohol level (R1 Tab 5, 14.), but only as
evidence to be considered along with the other evidence in the record. (R1 Tab 5, 14_ 1 6.) The hearing officer also distinguished between the criminal context and the
administrative context. (R1 Tab 5, 14-16.)
Wolkens appealed t th' o IS court on June 19 201.'3 Th 1 . . ' · e so e Issue Is whether the certificates were properly adm. tt d . h . I e mto t e hearmg record.
Analysis l. Standard ofReview
In an 80C appeal, the Court reviews "the agency's d . . r. eciszon lOr errors of law abuse of discretion fi d' ' , or m mgs not supported by substantial evidence in the record." Nicholson v. Bd. ifLicensure in Med., 2007 ME 141 IT 7 , 11 , 9S5 A.2d 660 (quoting FPL
3 Energy Me. Hydro LLC v. Dep't ofEnvtl. Prot., 2007 ME 97, IJ 13,926 A.2d 1197). The
Court "must affirm findings of fact if they are supported by substantial evidence in the
record, even if the record contains inconsistent evidence or evidence contrary to the
result reached by the agency." Friends ofLincoln Lakes v. Bd. ofEnvtl. Prot., 2010 ME 18,
1J 13, 989 A.2d 1128. 2. Admissibility of Certificates
Petitioner argues that the hearing officer erred in admitting the certificates at
the hearing because the analyst may not have personally appeared before the notary
when signing them. Under Maine's Administrative Procedure Act, a hearing officer
shall admit evidence "if it is the kind of evidence upon which reasonable persons are
accustomed to rely in the conduct of serious affairs." 5 M.R.S.A. § 9057(2) (2012). The
motor vehicle code contains the following provisions with respect to alcohol analysis:
The following provisions apply to the analysis ofblood, breath and urine, and the use of that analysis as evidence. A. A person certified in accordance with section 2524 conducting a chemical analysis ofblood, breath or urine to determine an alcohol level or drug concentration may issue a certificate stating the results of the analysis. B. A person qualified to operate a self-contained, breath-alcohol testing apparatus may issue a certificate stating the results of the analysis. C. A certificate issued in accordance with paragraph A or B, when duly signed and sworn, is prima facie evidence that: (1) The person taking the specimen was authorized to do so; (2) Equipment, chemicals and other materials used in the taking of the specimen were of a quality appropriate for the purpose of producing reliable test results; (3) Equipment, chemicals or materials required to be approved by the Department of Health and Human Services were in fact approved; (4) The sample tested was in fact the same sample taken from the defendant; and (5) The alcohol level or drug concentration in the blood of the defendant at the time the sample was taken was as stated in the certificate.
29-A M.R.S.A. § 2431(2) (2012).
4 In Abrahamson v. Secretary cf State, the Law Court found that alcohol "test results
were admissible even if there is a failure to comply with statutory or regulatory
provisions unless 'the evidence is determined to be not sufficiently reliable."' Abrahamson
v. Sec'y cifState, 584 A.2d 668 (Me. 1991) (quoting former 29 M.R.S.A. § 1.'312(6)). The
current statute has a similar provision. See 29-A M.R.S.A. § 2431( 1). In Abrahamson, the
court considered whether a certificate that included a notation that the testing kit was
defective could properly be relied on by the hearing officer. Abrahamson, 584 A.2d at
671. The court found that "evidence as to accuracy and reliability of a test result creates
issues of fact properly resolved by the factfinder." Id. Accordingly, the court reversed
the trial court and upheld the suspension ofthe license. Id.
Petitioner relies on Heal v. Maine Employment Security Commission to argue that
the hearing officer could not rely on the certificates. In Heal, the Law Court applied the
reliability standard to reports of an employer purportedly conveyed via telephone to an
Employment Commission employee. Heal v. Me. Employment Sec. Com'n, 447 A.2d 122.'3,
1225 (Me. 1982). It held:
~~documents_ on their face do not supply and assurance of reliability. At best rr d_ocument Is a second or third-hand hearsay account of the crucial fact in ~nl!:~~:i:· ~J :~:t:xmteennttsoafrtehu~s:orn, a~d the identity of the informant is ' e lll1ormant s perso 1 k 1d · was error for the Commission to co I d th na now e ge IS unknown. It these documents in the conduct ofthnc .u e . at reffias?nable people would rely on e1r senous a mrs. Heal, 447 A 2d at 1226 U l"k · R . . . n I e m eal, however, the identity of the certifying technician
Is known and the analyst is not an interested party. Moreover, petitioner does not
challenge the analyst's ability to conduct blood alcohol anal d yses nor oes she otherwise dispute the accuracy of the tests. (R1 Tab 5, 7-8.) Thus, petitioner's reliance on Heal is misplaced.
5 l on unsworn . offlcers may re y . . trative heanng hat adm1ms ~ g8 Other cases instruct t St te v Jones, 2012 ME 1~ 6' , . bl therwise rella e. See a . documents as long as they are o . suggestion that the staff here "there lS no . h rsay reports w 55 A..Sd 432. (allowmg ea ~~&\ \t~~~\\ members were biased. or n.au a motive to \a\rr\.cate., or t\\a\ \\\~:~e ~a~ ~~W& to treat the substantive reliability of the reports as highly suspect."); Elvin v. City if
Waterville, 573 A.2d 381, 383-84 (Me. 1990) ("In performing their duties administrative
tribunals regularly and properly rely on hearsay.").
In the present case, the hearing officer agreed with the petitioner that the
notarization issue raised in the Liberman letter meant that the certificates could not be
deemed "duly signed and sworn" for purposes of qualifYing to be admitted as primafacie
evidence of the petitioner's blood alcohol content. The hearing officer also agreed that
the certificates likely would be inadmissible, at least without testimony from the analyst,
in a criminal proceeding. However, the hearing officer reasonably determined that,
notwithstanding the possible issue with notarization, the certificates were sufficiently
reliable to be admitted as evidence, albeit not as prima facie evidence, in the
administrative proceeding.
For these reasons, the court affirms the Secretary ofState's decision at issue and
denies the petitioner's appeal.
IT IS ORDERED:
Petitioner's appeal is denied. The decision ofthe Secretary ofState, Bureau of
Motor Vehicles, suspending Petitioner Jean Wolkens's license to operate motor vehicles
in Maine effective May 22, 2013, based on reported operation under the influence on
December 16, 2012 and March 7, 2013, is hereby affirmed. Judgment shall be entered
in favor of the Respondent State of Maine, Secretary of State.
6 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 January 7, 2014 A.M. Horton Justice, Superior Court
7 Date Filed 06/19/13 Sagadahoc County Docket No. AP-13-03
Action: SOC Appeal
Jean Wolkens vs. State of Maine, Secretary of State Matthew Dunlap, Bureau of Motor Vehicles
Plaintiffs Attorney Defendant's Attorney
Robert C. Andrews, Esq Donald W Macomber, AAG PO Box 17621 6 State House Station Portland, Maine 04530 Augusta, Maine