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Melevsky v. Secretary of State

Supreme Court of Maine

April 3, 2018

WALTER MELEVSKY III
v.
SECRETARY OF STATE

          Submitted On Briefs: February 26, 2018

          Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellant Secretary of State.

          Patrick H. Gordon, Esq., Fairfield and Associates, Lyman, for appellee Walter Melevsky III.

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          MEAD, J.

         [¶1] The Secretary of State appeals from a judgment of the Superior Court (York County, Douglas, J.) vacating the decision of the Secretary of State's Hearing Examiner that denied Walter Melevsky Ill's petition to rescind the administrative suspension of his driver's license. See 5 M.R.S. §11008(1) (2017); 29-AM.R.S. §2521(1), (3), (5)-(6), (8) (2017); M.R. Civ. P. 8OC. The Secretary challenges the court's determination that as a matter of law Melevsky did not "fail[ ] to submit to and complete a test" of his blood-alcohol concentration. See 29-A M.R.S. §2521(5), (8)(C). Because the evidence presented to the Hearing Examiner supported the determination that Melevsky did fail to submit to a test of his blood-alcohol concentration, we vacate the judgment of the Superior Court and remand for the entry of an order affirming the decision of the Hearing Examiner.

         I. BACKGROUND

         [¶2] On November 12, 2016, at around 7:05 p.m., Melevsky was driving northbound on Route 35 in Lyman when a Maine State Police trooper pulled over Melevsky's vehicle for having defective license plate lights. The trooper "detected a strong odor of intoxicating beverages coming from the vehicle" and saw that both Melevsky and his passenger "had bloodshot and glossy eyes, and slow, slurred speech." Melevsky performed poorly on roadside field sobriety tests, and the trooper arrested Melevsky and transported him to the York County Jail. As a result of interactions with Melevsky at the jail, the trooper concluded that Melevsky had refused a test of his blood-alcohol level; the trooper reported Melevsky's refusal to the Secretary of State. After receiving notice that his license was being suspended for 275 days due to a refusal to take a test of his blood-alcohol level upon his arrest, Melevsky petitioned for ajiearing before the Secretary of State to review the suspension. See 29-A M.R.S. §§ 2483, 2521(5), (8) (2017). The evidence at the March 1, 2017, hearing consisted only of the trooper's testimony and his police report, which was entered as Exhibit 1.

         [¶3] The evidence presented to the Hearing Examiner indicated that while the trooper was processing Melevsky at the York County Jail and explaining how the Intoxilyzer breath test worked, Melevsky unequivocally stated that he was not going to take the breath test. After being read "the refusal form (green form), " and only then, Melevsky indicated a willingness to submit to a blood test, but not a breath test.

         [¶4] The trooper was willing to accommodate Melevsky's request for a blood test despite the refusal of the breath test. He verified that the local hospital had a blood test kit available as well as someone capable of drawing the sample. Before departing for the hospital, the trooper sought to confirm that Melevsky was actually going to submit to the blood test but Melevsky was equivocal, responding with words to the effect of "I don't know. I might, might not. Might change my mind. I might refuse." At this point, the trooper determined that Melevsky "was just delaying and messing with [him]." He told Melevsky that he was going to treat Melevsky's actions as a refusal and read Melevsky the standard implied consent explaining the consequences of refusing a test. He asked Melevsky to sign it to acknowledge the refusal. Melevsky offered no suggestion that he was withdrawing his earlier unequivocal refusal to take the breath test or his equivocation on whether he would actually undergo the blood draw after being transported to the hospital. He declined to sign the implied consent form.

         [¶5] The Hearing Examiner denied Melevsky's petition to rescind the suspension, concluding that Melevsky had refused to take a test of his blood-alcohol level. Melevsky filed a timely petition for review in the Superior Court. 5 M.R.S. §§ 11001-11008 (2017); 29-AM.R.S. § 2485(5) (2017). After the Superior Court concluded that the Secretary of State's decision was erroneous as a matter of law, vacated that decision, and ordered the Secretary to reinstate Melevsky's driver's license, the Secretary timely appealed to us. 5 M.R.S. § 11008(1); M.R. Civ. P. 8OC.

         II. DISCUSSION

         [¶6] "When the Superior Court acts in an intermediate appellate capacity pursuant to M.R. Civ. P. 8OC, we review the administrative agency's decision directly for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record." Somerset County, v. Dep't of Corr., 2016 ME 33, ¶ 14, 133 A.3d 1006 (alteration omitted) (quotation marks omitted); see also Abrahamson v. Sec'y of State, 584 A.2d 668, 670 (Me. 1991).

         [¶7] Title 29-A M.R.S. § 2521(5) mandates that the Secretary of State "shall immediately suspend the license of a person who fails to submit to and complete a test." However, pursuant to 29-A M.R.S. § 2521(3), before the consequences of refusal may attach, law enforcement must inform a ...


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