DECISION AND ORDER
WILLIAM R. STOKES, JUSTICE.
matter before the court is an appeal by the Petitioner from a
decision of a hearing officer with the Bureau of Motor
Vehicles dated May 15, 2017 refusing to rescind the
administrative suspension of his driver's license for a
period of 150 days, on the basis of a report from a
Waterville police officer that the Petitioner had operated a
motor vehicle with an excessive blood alcohol level on
January 11, 2017. This appeal has been brought in accordance
with 5 M.R.S. §§11001-11008 (Maine Administrative
Procedure Act) and M.R.Civ.P. 80C. The sole issue before the
court is whether the hearing officer committed legal error
when she admitted into evidence at the administrative hearing
the Certificate of Alcohol Analysis from a sample of his
blood obtained from him after he was read the so-called
implied consent form. Stated otherwise, the Petitioner
asserts that his blood sample was obtained as a result of
coercion and that the exclusionary rule should have been
applied in the administrative hearing to exclude the results
of the blood alcohol analysis.
AND PROCEDURAL BACKGROUND
facts from the administrative record may be summarized as
On January 11, 2017 at 1:03 a.m., Officer Ryan Dinsmore was
dispatched to the scene of a motor vehicle accident on West
River Road in Waterville. Upon arrival at the accident site,
the officer found an empty truck with a male, later
identified as the Petitioner, staggering around it. Based
upon his investigation, Officer Dinsmore developed probable
cause to believe that the Petitioner had operated a motor
vehicle with an excessive blood alcohol level, a
determination the Petitioner did not, and does not, contest.
Petitioner was taken by ambulance to the hospital for
treatment. Officer Dinsmore followed the ambulance and met up
with the Petitioner. The officer informed the Petitioner that
he believed the Petitioner has been driving while under the
influence of alcohol. The Petitioner was requested to submit
to the taking of a sample of his blood. He refused. Officer
Dinsmore then read to the Petitioner, verbatim, the
information contained on the form entitled "Law
Enforcement Officer's Report Relating to Implied
Consent." (Exhibit 5). The Petitioner then consented to
the taking of a blood sample.
sample was thereupon taken from the Petitioner by a
phlebotomist at the hospital. The blood kit containing the
sample was later delivered to the Health and Environmental
Testing Laboratory in Augusta. The Certificate of Alcohol
Analysis (Exhibit 2) showed a blood alcohol level of .12. The
Secretary of State notified the Petitioner by letter mailed
on April 1, 2017 that his driver's license would be
suspended for 150 days effective April 10, 2017. (Exhibit 3).
The Petitioner, through counsel, requested a hearing which
was eventually held on May 15, 2017, pending which the
license suspension was stayed.
administrative hearing, counsel for the Petitioner objected
to the admission of the Certificate of Alcohol Analysis
(Exhibit 2) on the basis that there was a "due
process" violation in the taking of Petitioner's
blood. (Transcript at 20-21). More specifically, Petitioner
argued that the taking of his blood sample, after his initial
refusal, was coerced when the officer read the "implied
consent" form to him. In short, the Petitioner
maintained that the taking of his blood violated the
standards announced in Birchfield v. North Dakota,
___U.S.___, 136 S.Ct. 2160 (2016), and further urged the
hearing officer to exclude the evidence from the
administrative suspension hearing. The hearing officer
overruled the objection and admitted the evidence.
(Transcript at 27).
stay of the license suspension was extended until May 20,
2017. The Rule 80C petition was filed on May 18, 2017. The
Petitioner's motion for stay pursuant to 5 M.R.S.
§11004 was denied, after hearing, on May 19, 2017. A
hearing on the Rule 80C appeal was held on December 5, 2017.
Court has frequently reaffirmed the principle that judicial
review of administrative agency decisions is
"deferential and limited." Passadumkeag
Mountain Friends v. Bd. of Envtl. Prot., 2014 ME 116,
¶ 12, 102 A.3d 1181 (quoting Friends of Lincoln
Lakes v. Bd. of Envtl. Prot., 2010 ME 18, ¶ 12, 989
A.2d 1128). The court is not permitted to overturn an
agency's decision "unless it: violates the
Constitution or statutes; exceeds the agency's authority;
is procedurally unlawful; is arbitrary or capricious;
constitutes an abuse of discretion; is affected by bias or
error of law; or is unsupported by the evidence in the
record." Kroger v Departmental of Environmental
Protection, 2005 ME. 50, ¶ 7, 870 A.2d 566. The
party seeking to vacate a state agency decision has the
burden of persuasion on appeal. Anderson v Maine Public
Employees Retirement System, 2009 ME. 134, ¶ 3, 985
A.2d 501. In particular, a party seeking to overturn an
agency's decision bears the burden of showing that
"no competent evidence" supports it. Stein v.
Me. Crim. Justice Academy, 2014 ME 82, ¶ 11, 95
previously observed, the only issue before the court is
whether the hearing officer committed an error of law by
admitting the results of the alcohol analysis of the
Petitioner's blood. In Birchfield v. North
Dakota the Supreme Court indicated that "[o]ur
prior opinions have referred approvingly to the general
concept of implied-consent laws that impose civil penalties
and evidentiary consequences on motorists who refuse to
comply." 136 S.Ct. at 2185. Nevertheless, the Court held
that a motorist cannot be deemed to have consented to the
taking of a blood sample pursuant to a North Dakota law that
required such consent "on pain of committing a criminal
offense." Id. at 2186. In that
Birchfield companion case - Beylund v. Levi
- the Court remanded to the North Dakota courts to
re-evaluate the voluntariness of the defendant's consent
based on the totality of the circumstances.
in a footnote the Court pointed out that on remand the North
Dakota courts would have to determine whether the evidence
should be suppressed "in an administrative rather than
criminal proceeding." 136 S.Ct. at 2186, n. 9. On
remand, the North Dakota Supreme Court followed the majority
approach, including the existing law in Maine, that the
exclusionary rule does not apply to "civil
administrative license suspension proceedings."
Beylund v. Levi, 2017 N.D. 30, ¶ 24, 889 N.W.2d
907 citing Powell v. Secretary of State, 614 A.2d
1303, 1306-07 (Me. 1992).
"implied-consent" statute,  is not the same as the North
Dakota law addressed in Birchfield, 29-A M.R.S.
§2521. Maine's law does not criminalize the refusal
to consent to a chemical test, but it does impose license
suspension and evidentiary consequences for such a refusal.
Whether Maine's statute runs afoul of Birchfield
in terms of the admissibility of evidence in a criminal
proceeding, is now before the Law ...