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Flaherty v. Secretary of State

Superior Court of Maine, Aroostook

February 17, 2017



          Eric Flaherty, Petitioner, has filed a Petition for Review pursuant to M.R. Civ. P. 80C and 5 MRSA Section 11001 seeking to overturn the suspension of his driver's license by the Secretary of State, The primary arguments of the Petitioner are that the Hearing Officer was required to find that Petitioner was under the combined influence of both Narcotic Analgesics and Central Nervous System Stimulants, and that there is not substantial evidence to support the decision.


         On April 28, 2016, Caribou Police received a telephone complaint from a citizen informant that a pickup with plate "weld it" was operating erratically. (Record, Tab 5, pp. 7-8], Officer Cochran was dispatched who waited along the side of the road, U.S. Route 1, for the vehicle to approach. (Id.). The Officer saw the vehicle approach and pass and it appeared the driver had a cellphone in his hands. (Id.). The Officer pulled out behind the vehicle and conducted a traffic stop. (Id.). The driver did not stop immediately and rolled a distance greater than usual when pulling over. (Id. at 20).

         Upon approaching the vehicle and receiving the driver's license and registration, the Officer identified the driver as the Petitioner. As they spoke, the Officer noticed that the Petitioner's speech was slurred, his eyes were watery and bloodshot, and his pupils dilated. (Id. at 9). The Petitioner offered explanations for his erratic operation (rolling a cigarette) and his eyes (little sleep and bright sun). (Id. at 10, 35-37). The Petitioner also told the Officer he had taken prescribed Suboxone earlier that day. (Id. at 10). He denied consuming alcohol that day.

         Officer Cochran proceeded to conduct field sobriety tests. The first was the HGN test which was negative. (Id.). He then proceeded to have the Petitioner perform the walk-and-turn test. Officer Cochran detected four of eight possible clues, although the Officer acknowledged not instructing the Petitioner to leave his arms down during the test. (Id. at 11). He then had him perform the one-leg stand. The Petitioner was unable to perform this test but he did tell the Officer he had "bad legs and a bad back". (Id. at 11). Next he had the Petitioner perform the Romberg Balance Test, which he performed successfully. (Record, Tab 6).

         At that point the Officer transported the Petitioner to the Caribou Police Station for further testing. The intoxilyzer test indicated a zero result, so Officer Cochran, who is also a drug recognition expert, initiated a drug influence evaluation. (Record, Tab 5, p.13). The Officer reiterated his earlier observations of constricted pupils and droopy eyelids. (Id., ). Also, the Petitioner was unsuccessful with the finger to nose test. (Id. at pp. 14, 61). And while in the booking room, Officer Cochran noticed that the Petitioner was "on the nod", meaning sitting with his eyes closed, chin on his chest, but responsive to questions, (Id. at pp. 14, 58), In sum, the Officer's findings consistent with narcotic analgesics were constricted pupils, droopy eyelids and being on the nod, lethargy, poor coordination and slurred speech. (Id. at pp.62-63). Officer Cochran also found however in performing the evaluation that the Petitioner's pulse and blood pressure were high, which is not consistent with narcotics. Also not consistent with narcotic analgesics was the Petitioner's ability to accurately estimate time, normal rebound dilation and normal muscle tone. But Officer Cochran testified that positive findings for all of the tests or observations is not required, (Id. at p. 54). Ultimately, Officer Cochran was of the opinion, as a drug recognition expert, that the Petitioner was under the combined influence of CNS stimulants and narcotic analgesics. (Id. at pp. 15-16).

         Officer Cochran collected a urine sample from the Petitioner which was sent to the State lab. Per the Certificate of Drug Analysis, the urine sample was positive for Buprenorphine, a narcotic analgesic, and Hydroxyalprazolam, a CNS depressant. (Id. at p. 17; Tab 6).

         In a written decision dated September 8, 2016 the Hearing Officer found that the Petitioner did operate a motor vehicle while under the influence of a narcotic analgesic, the presence of which was confirmed by the Certificate of Drug Analysis, and upheld the license suspension. (Record, Tab 3)


         In its appellate capacity, the court reviews the decision of the hearing officer for errors of law, abuse of discretion, or findings not supported by substantial evidence on the record. Robinson v. Board of Trustees of Maine State Retirement Sys, 523 A.2d 1376, 1378(Me. 1987). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support the resultant conclusion." Crockery. Maine Unemployment Sec. Comm'n., 450 A.2d 469, 471 (Me. 1982). The burden of proof is on the Petitioner, as the party seeking to overturn the decision of the administrative agency.

         At the administrative hearing before the Secretary of State, the issues and scope were whether:

A. The person operated a motor vehicle with a confirmed positive blood or urine test for a drug or its metaholite;
B. There was probable cause to believe that the person was operating a motor vehicle while under the influence of a specific category of drug, a combination of specific categories of drugs or a combination of alcohol and one or more specific categories of drugs; and
C. The person operated a motor vehicle under the influence of the confirmed drug. Title 29-A, ...

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