Submitted On Briefs: February 26, 2018
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.
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
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
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.
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.
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.
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.
"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).
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 ...