ORDER ON PETITION FOR REVIEW OF AGENCY
Michaela Murphy Justice.
the court is Edward Mullins' Rule 80(C) petition for
review of final agency action taken by the Bureau of Motor
Vehicles. For the following reasons, the petition is denied.
October 7, 2017, Bucksport Police Officer Ryan Welch was at a
restaurant when he observed Appellant Edward Mullins swaying
back and forth on a stool at the bar. (Tr. 7.) Officer Welch
observed Petitioner get up to leave the bar and heard him
slur his speech as he was leaving. (Tr. 7-8.) Officer Welch
could also see that Mullins' eyes were watery and that he
was having trouble walking straight. (Tr. 8.) Officer Welch
then observed Mullins fumble with his keys, get into a
vehicle and start the engine. (Tr. 8-9; Ex. 1.) Officer Welch
then initiated contact with Mullins who smelled of
intoxicants and admitted to having two drinks. (Tr. 9.)
Officer Welch had Mullins perform field sobriety tests. (Tr.
9.) After the field sobriety tests Officer Welch arrested
Mullins for operating under the influence and transported him
to the Bucksport Police department to administer an
intoxilyzer test. (Tr. 17.) The results of the test were .11
grams of alcohol per 210 liters of breath. (Tr. 17.)
December 6, 2017, the Secretary of State suspended
Mullins' license for 150 days. On February 8, 2018, the
Secretary of State held an administrative hearing at which
both Officer Welch and Mullins presented testimony. At the
conclusion of the hearing the hearing examiner found that
there was ample evidence of intoxication. (Tr. 47.) On
February 23, 2018, the Hearing Officer issued a written
decision in which she found that it was reasonable for
Officer Welch to conclude that Mullins was attempting to
operate his vehicle. (R. Tab 3.) Accordingly, Mullins'
petition to vacate the administrative suspension was denied.
(R. Tab 3.) Mullins timely filed this appeal on March 20,
reviewing the hearing officer's decision, the Court
reviews the record of the administrative agency directly to
determine "whether the Hearing Examiner abused her
discretion, committed an error of law, or made findings not
supported by substantial evidence in the record."
Abrahamson v. Secretary of State, 584 A.2d 668, 670
(Me. 1991). Substantial evidence is defined as "such
relevant evidence as a reasonable mind might accept as
adequate to support the resulting conclusion."
Lewiston Daily Sun v. Maine Unemployment Insurance
Comm'n., 1999 ME 90, ¶ 7, 733 A.2d 344, 346
(quoting Crocker v. Maine Unemployment Insurance
Comm'n., 450 A.2d 469, 471 (Me. 1982)). "A
reviewing court may not substitute its judgment for that of
the agency merely because the evidence could give rise to
more than one result." Dodd v. Secretary of
State, 526 A.2d 583, 584 (Me. 1987). The focus on appeal
is not whether the court would have reached the same
conclusion as the agency, but whether the record contains
competent and substantial evidence that supports the result
reached by the agency. See CWCO, Inc. v. Superintendent
of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258, 1261. The
burden of proof rests with the party seeking to overturn the
agency's decision, and that party must prove that no
competent evidence supports the agency's decision.
Lewiston Daily Sun, 1999 ME 90, ¶ 7, 733 A.2d
appeal, Mullins does not challenge the Hearing Examiner's
findings regarding intoxication. The sole issues before the
court are whether substantial record evidence exists which
supports the Hearing Examiner's conclusions that Mullins
was attempting to operate a motor vehicle and that Officer
Welch had probable cause to believe Mullins was attempting to
operate a motor vehicle.
operation exists where an individual takes a
"substantial step toward the operation of a motor
vehicle with the intent to operate that vehicle."
State v. Deschenes, 2001 ME 136, ¶ 9, 780 A.2d
295 (citing State v. Henderson, 416 A.2d 1261, 1263
(Me. 1980). "A substantial step is any conduct which
goes beyond mere preparation and is strongly corroborative of
the firmness of the actor's intent to complete the
commission of the crime." Id. (citing 17-A
M.R.S.A § 152(1) (1983)). "When the circumstances
alleged to show probable cause are established, the question
of whether those circumstances constitute probable cause,
including the reasonableness of a defendant's belief to
support probable cause, is a question of law for the
court." Trask v. Devlin, 2002 ME 10, ¶ 14,
788 A.2d 179.
argues that there is insufficient direct or circumstantial
evidence to support a finding that he intended to operate his
motor vehicle. (Appellant's Memo, at 6-7.) Mullins places
great weight on the lack of any admission that he intended to
drive as well as the lack of any evidence that
Mullins engaged the gear shift, placed his feet on the
pedals, turned on the car headlights, or turned the wheel
away from the curbing. (Id.)
argument relies primarily on distinguishing the present case
from State v. Deschenes, 2001 ME 136, 780 A.2d 295.
In Deschenes, the Law Court held that evidence that
the defendant was observed staggering to his vehicle, wherein
the defendant placed one hand on the steering wheel, placed
his feet on the floor by the pedals, and attempted to put the
key in the ignition, was sufficient to support the jury's
finding that the defendant had taken a substantial step
toward operating a motor vehicle. Id. ¶ 10. The
Court further held that, "in conjunction with [the
defendant's] statement that he was 'just
leaving,' the evidence [was] 'strongly
corroborative' of [the defendant's] intent to operate
his vehicle." Id. ¶ 10.
it is true that Mullins did not make any pre-arrest statement
similar to the one made in Deschenes, such an
admission is not necessary to create an inference of intent.
In State v. Belhumeur, the Law Court held that the
jury could rationally have found beyond a reasonable doubt
that the defendant had attempted to operate his vehicle when
he reached for the vehicle's steering wheel and keys
after being roused from sleep.4 2015 ME 150, ¶ 8, 128
A.3d 646. In this case, the record reveals competent evidence
showing that Mullins left the bar, walked to his car, got
inside the car, and started the engine. Unlike in
Deschenes, Mullins was not merely attempting to
start the car but had actually started it.
evidence is strongly corroborative that Mullins intended to
operate his vehicle. See id.; Deschenes. 2001 ME
136, ¶ 10, 780 A.2d 295. This court may not reach a
contrary conclusion and reverse the decision of the hearing
officer merely because there is a lack of evidence that
Mullins engaged the gear shift, placed the car in reverse,
activated the ...