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Farwell v. Secretary of State Bureau of Motor Vehicles

Superior Court of Maine, Kennebec

June 10, 2019

DAVID FARWELL, Petitioner
v.
SECRETARY OF STATE BUREAU OF MOTOR VEHICLES, Respondent

          Plaintiff's Attorney Sarah Churchill, Esq.

          Defendant's Attorney Donald Macomber, AAG

          DECISION AND ORDER

          William R. Stokes, Justice

         Before the court is Petitioner David Farwell's M.R. Civ. P. 80C review of the Secretary of State Bureau of Motor Vehicles' decision affirming suspension of his motor vehicle license.

         I. Facts

         The following facts are based on the Administrative Record. Petitioner David Farwell (Farwell) was arrested on September 8, 2018, by Sergeant Adam Shaw for operating under the influence (alcohol). (R. T6 at 4.) Sergeant Shaw observed Farwell speeding and crossing the fog line, and upon pulling Farwell over, he observed him with glassy and bloodshot eyes, slurred speech, and the smell of alcohol on his breath. (R. T6 at 4-5.) Farwell admitted to drinking two or three Bloody Mary. (R. T6 at 4.) Sergeant Shaw observed 6 out of 6 clues on the Horizontal Gaze Nystagmus (HGN) test. (R. T6 at 5.) Farwell made several mistakes on an oral alphabet test and a counting backwards test. (R. T6 at 5.) After asking about loose objects in Farwell's mouth and ensuring that Farwell's upper dentures and any remaining glue were removed, Sergeant Shaw administered a chemical breath test with an Intoxylizer 8000. (R. T6 at 6.) The Intoxylizer report found that Farwell had 0.17 grams of alcohol per 210 liters of breath. (R. T6 at 6, T7 at 1.) Pursuant to 29-A M.R.S. § 2453 (2018), the Secretary of State Bureau of Motor Vehicles administratively suspended Farwell's license. (R. T8 at 1). Farwell timely requested and received an administrative hearing on January 29, 2019. (R. T8at6.)

         At issue during the hearing was whether the chemical breath test administered by Sergeant Shaw was reliable given Farwell's fixed lower dental implant. (R. T5 at 35-36.) Farwell submitted photographs of his dental implant before and after cleaning, as well as a letter from his dentist, Dr. Lyford, to the effect that Farwell had not visited him in six years. (R. T10 at 1.) Dr. Lyford's letter also stated, ;"[h]e has an implant retained lower prosthesis . . . [that] can harbor bacteria and yeast." (R. T10 at 1.) Dr. Lyford concluded, "bacteria and yeast give off many volatile sulfur compounds as well as many other volatiles and this could affect any lab work or gas laboratories he has submitted to." (R. T10 at 1.) Sergeant Shaw testified that had he known about the fixed dental implant, he probably would have followed the cautious approach of taking a blood sample. (R. T5 at 17-18.)

          The hearing officer found that no expert testimony or evidence showed that the test would be unreliable because of Farwell's specific implants. (R. T5 at 36.) Further, the hearing officer found that Sergeant Shaw administered the test pursuant to the manual, which only required loose objects or devices be removed before the administration of the test. (R. T5 at 21, 36.) Ultimately, the hearing officer held that he was not persuaded the fixed dental implant could trap alcohol sufficient to produce an alcohol level of 0.17 after a 15-minute wait period. (R. T5 at 35-36.) I. Discussion

         A. Standard of Review

         When the decision of an administrative agency is challenged on appeal, "the court may reverse or modify the decision if the administrative findings, inferences, conclusions or decisions are:

1) In violation of constitutional or statutory provisions;
2) In excess of the statutory authority of the agency;
3) Made upon unlawful procedure;
4) Affected by bias or error of ...

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