DECISION AND JUDGMENT
case presents an appeal under Rule 80C of the Maine Rules of
Civil Procedure, in which petitioner John Morgan challenges a
decision of the respondent Maine Secretary of State
suspending his driver's license.
parties have filed briefs and the court elects to decide the
case without oral argument. See M.R. Civ. 80C(l)
(oral argument to be scheduled "[u]nless the court
otherwise directs." See also Lindemann v. Comm'n
on Governmental Ethics & Election Practices, 2008 ME
187, ¶26, 961 A.2d 538 (Rule 80C permits court to direct
that oral argument not be scheduled).
on the entire record, the court denies the appeal and grants
judgment to the Respondent.
September 22, 2018, Officer Brandon Curtis of the Brunswick
Police Department completed a report to the Maine Secretary
of State that Petitioner John Morgan had operated a motor
vehicle on September 20, 2018 with an alcohol level of 0.08
grams of alcohol or more per 100 milliliters of blood or 210
liters of breath. See Record Ex. 1. See also
29-A M.R.S. § 2481(1) (procedure for officer's
report of elevated alcohol level). The report was based on
the result of an Intoxilizer test administered after Mr.
Morgan had been placed under arrest on September 20, 2018,
indicating Mr, Morgan's alcohol level to be 0.11 grams.
Record Ex, 7. In response, the Secretary of State sent Mr.
Morgan a Notice of Suspension and Opportunity for Hearing.
See Record Ex. 8. Mr. Morgan requested a hearing.
hearing was held February 20, 2019. The hearing transcript is
Exhibit 5 in the administrative record. Mr. Morgan did not
attend the hearing, but his attorney, Matthew Bowe, and a
witness for Mr. Morgan did attend, as did Officer Curtis.
outset, Hearing Officer Tucker indicated that his
understanding that Mr. Morgan's challenge to the
suspension was limited to the issue whether Mr. Morgan in
fact operated a motor vehicle with an excessive alcohol
level, meaning that Mr. Morgan was not challenging the
existence of probable cause for the arrest. See
Record Ex. 5 at 3; see also 29-A M.R.S. §
2453(8) (issues at administrative hearing).
Curtis testified regarding his administration of the
Intoxilizer test and the result obtained. See Record
Ex. 5 at 3-13. Attorney Bowe questioned the officer about the
contents of Mr. Morgan's mouth before and during the
test. See id. at 6-13. In response to one
question, the officer indicated that Mr. Morgan had told him
he had been to the dentist earlier in the day. See
id. at 10. After the officer's testimony, attorney
Bowe presented the testimony of Mr. Morgan's dentist,
Kevin Wilson, via telephone. Dr. Wilson testified that Mr.
Wilson had undergone a dental cleaning by a dental hygienist
on September 20, 2018, and that he had bled extensively from
the gums during the cleaning. Id. at 14-34. Once the
dentist's testimony was complete, the hearing officer and
attorney Bowe asked Officer Curtis a few more questions about
whether he had noticed any blood or bleeding during the
Intoxilizer test, and the officer said he had not
Id. at 35-36.
Bowe's closing argument focused on the provision of the
Intoxilizer manual indicating that the presence of blood in
the mouth of a person undergoing the test can compromise the
validity of the test result. Id. at 37-38. Attorney
Bowe pointed out that the officer did not doublecheck the
state of Mr. Morgan's mouth, even after Mr. Morgan had
disclosed that he had visited the dentist earlier in the day.
Officer Tucker denied the petition on the ground that there
was no evidence that Mr. Morgan was still bleeding, or had
any blood in his mouth, at the time of the Intoxilizer test.
The hearing officer also noted his understanding of the
Intoxilizer manual as referring to oral surgery rather than a
teeth cleaning. See id. at 38-40.
Morgan took this timely appeal.
the Superior Court considers an appeal, the court reviews
whether the hearing officer abused his or her discretion,
committed an error of law, or made findings not supported by
substantial evidence in the record. Davric Maine Corp. v.
Maine Harness Racing Comm'n,1999 ME 99, ¶ 7,
732 A.2d 289. 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 Ins.
Comm'n,1999 Me 90, ¶ 7, 733 A.2d 344 (citation
omitted). "The burden of proof clearly rests with the
party seeking to overturn the ...