DECISION AND ORDER RULE 80C APPEAL
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.
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).
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
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).
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.
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).
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)
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.
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, ...