DECISION AND JUDGMENT ON APPEAL PURSUANT TO M.R. CIV.
appeal from administrative agency action under Rule 80C,
Maine Rules of Civil Procedure, Petitioner Eric Mauriello
argues the Respondent State of Maine, Department of the
Secretary of State, Bureau of Motor Vehicles, erred in
suspending his driver's license for operating with an
excessive alcohol level pursuant to 29-A M.R.S. § 2453.
asks the court to overturn the suspension because the hearing
officer never made an affirmative finding of probable cause
and because Petitioner's due process rights were violated
by the law enforcement officer's delay in summonsing
Petitioner for operating under the influence.
argument was held July 12, 2017.
reasons discussed below, the court denies Petitioner's
M.R. Civ. P. 80C appeal and affirms the decision of the
record before the hearing officer reveals the following facts
not to be in dispute for purposes of this appeal:
August 3, 2016 at about 3:00 a.m., Maine State Police Trooper
Justin Huntley was traveling northbound on the Maine Turnpike
near Exit 45. (R. Tab 6 p. 2.) Trooper Huntley observed a
black Subaru Forester travelling at approximately 32 to 35
miles per hour in the 60 mile per hour zone. (Id.)
The Subaru was driving in the right lane and had its
passenger side turn signal on. (Id.) Trooper Huntley
followed the car and saw it weave into the other lane.
(Id.) He then activated his cruiser's blue
lights and executed a traffic stop of the vehicle.
Trooper Huntley approached the stopped vehicle, he saw that
Petitioner was the driver and sole occupant. (Id.)
The trooper told Petitioner the reason for the traffic stop
and asked for his license, registration, and proof of
insurance. (Id.) Trooper Huntley could smell a faint
odor of alcohol coming from Petitioner and saw that his eyes
were glassy. (Id.) Petitioner admitted that he had
consumed a couple of drinks earlier in the evening and
subsequently explained they were shots people would buy for
him and his band as they performed. (Id. at 2-3.)
trooper asked Petitioner to get out of the car and perform
field sobriety tests. (Id.) As a result of
administering the horizontal gaze nystagmus (HGN) test to
Petitioner, Trooper Huntley detected several clues, including
a lack of smooth pursuit in each eye and a sustained and
distinct nystagmus in each eye at maximum deviation.
(Id. at p. 3.) Trooper Huntley then administered the
walk-and-turn and one-legged-stand tests, and noted further
signs that Petitioner was impaired due to his consumption of
alcoholic beverages, including an improper turn and the use
of arms to maintain balance. (Id.) The trooper
placed Petitioner under arrest for operating under the
influence (OUI) and transported him to the police station for
an Intoxilyzer test of Petitioner's alcohol level.
Huntley-a certified Intoxilyzer operator-conducted the test,
which indicated Petitioner's breath alcohol level
("BAC") was .08 grams of alcohol per 210 liters of
breath. (Id.; R. Tab 7.) After completing the
Intoxilyzer test, Trooper Huntley drove Petitioner home
without issuing a summons to Petitioner. (R. Tab 5 p. 19.)
Trooper Huntley did not issue a summons because he mistakenly
thought that the OUI statute only prohibits operation with a
BAC of more than .08, and thus that Petitioner's .08 test
result was not unlawful. (Id.) In fact, the OUI
statute prohibits operation with a BAC of .08 or more.
See 29-A M.R.S. § 2411(1-A)(A)(2).
hours later, after realizing his mistake, Trooper Huntley
returned to Petitioner's residence and issued him a
summons for OUI. (Id. at 20).
Secretary of State received Trooper Huntley's report of
the incident on August 12, 2016. (R. Tab p. 1.) As a result,
the Secretary of State's office mailed a notice of
suspension and opportunity for hearing to Petitioner on
September 15, 2016. (R. Tab. 8 pp. 1-2.) The Notice informed
Petitioner that his license had been administratively
suspended for 150 days due to "ADMINISTRATIVE
ACTION-OPER WITH BAC .08 OR MORE" on August 3, 0216 (R.
Tab 8 p. 1.)
through counsel, requested a hearing that was held on October
12, 2016. (Id. at p. 3; R. Tab 5.) The Notice of
Hearing explained that the issues were whether, by a
preponderance of the evidence:
1. There was probable cause to believe that you were
operating a motor vehicle with an alcohol level of 0.08 grams
or more of alcohol per 100 milliliters ...