Smith v. Secretary of State

STATE OF MAINE SUPERIOR COURT
KENNEBEC , ss. DKT. NO. AP-20-34

ANTHONY SMITH, )
)
Petitioner, )
)
V. ) ORDER REMANDING PETITIONER'S
) RULE SOC APPEAL
SECRETARY OF STATE, )
)
Respondent. )

Petitioner Anthony Smith appeals pursuant to Rule 80C from the 275-day suspension of

his license for failing to submit to and complete a chemical test pursuant to 29-A M.R.S. § 2521 (6).

The Court has reviewed the paiiies' briefs, the record on appeal, and the law relevant to this case. 1

It remands the matter to the hearing officer to make additional factual findings. See 5 M.R.S. §

11007(4)(B).

RELEVANT FACTUAL BACKGROUND

The following facts are drawn from the certified record filed with the Court. On the

evening of January 18, 2020, Deputy Devin Polizzotti of the Kennebec County Sheriffs

Department was investigating an incident unrelated to the matter at issue here. (R. Tab 5, p. 13.)

Deputy Polizzotti had received a call about a suspected protection from abuse violation where the

patiies where at the boat launch on Route 41 in Mount Vernon. (R. Tab 5, p. 13.) Before Deputy

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Although no party asked for oral argument, the Cow1 requested that counsel for each side appear at a
Zoom hearing on May 7, 2021 . The Court had questions for the pa11ies about what it viewed as the standard
of review which seemed to apply, but by which three different legal standards are superimposed on one
another: namely, whether there is substantial evidence suppo11ing a hearing officer's determination, by a
preponderance of the evidence, that there was probable cause to believe an individual operated a vehicle
while under the influence . The Coutt also had questions regarding the specific factual findings made by
the hearing officer to suppo11 her determination that, by a preponderance of the evidence, there was probable
cause to believe Petitioner operated a motor vehicle while under the influence in comparison to evidence
in the record that might go toward the ultimate determination but not found as fact by the hearing officer.
Therefore, the Cowt offered Petitioner until May 14, 202 l, to address these issues fu1ther in writing, and
Respondent unti I May 21, 2021, to respond to Petitioner. Each side took the Cou1t up on its offer.

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Polizzotti pulled into the parking lot for the boat launch, Petitioner pulled into the parking lot ahead

of Deputy Polizzotti. (R. Tab 5, p. 13.) Petitioner's vehicle was the only other one in the parking

lot which caused Deputy Polizzotti to ask Petitioner if he had seen anything about the incident

Deputy Polizzotti was investigating. (R. Tab 5, p. 13.) Deputy Polizzotti did not notice any erratic

driving on the way in. (R. Tab 5, p. 20.)

Deputy Polizzotti walked to Petitioner's passenger window to start talking with Petitioner.

(R. Tab 5, p. 13.) At that point Deputy Polizzotti noticed that Petitioner's eyes were a little glassy

and that he was slurring his speech. (R. Tab 5, p. 13.) Petitioner contended that his eyes were

always glassy and his speech always slurred. (R. Tab 5, p. 14.) Deputy Polizzotti requested

Petitioner's license and other paperwork at some point during their interaction; Petitioner had no

difficulties providing these to Deputy Polizzotti. (R. Tab 5, p. 21.) During his interaction with

Petitioner, Deputy Polizzotti asked Petitioner if he had anything to drink that evening. (R. Tab 5,

p. 14.) Petitioner initially denied having anything to drink that evening, but he later conceded to

having consumed "something" at some point in the day . (R. Tab 5, pp. 14, 15-16, 24.)

Eventually, Deputy Polizzotti requested that Petitioner step outside the vehicle in order to

conduct field sobriety tests to ensure Petitioner was okay to drive. (R. Tab 5, p. 14.) Petitioner

got out but told Deputy Polizzotti that he would not drive any more that night and did not feel like

he needed to do field sobriety testing. (R. Tab 5, pp. 14-15.) Deputy Polizzotti worked to persuade

Petitioner to do the field sobriety testing but Petitioner did not relent. (R. Tab 5, p. 15.) Because

Petitioner would not agree to do the field sobriety testing, and because Deputy Polizzotti believed

- based on his limited exposure to Petitioner - that Petitioner may have been under the influence

of intoxicants, Deputy Polizzotti arrested Petitioner in order to conduct a breath test. (R. Tab 5, p.

15.) Deputy Polizzotti brought Petitioner to the Winthrop Police Department, read Petitioner

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Miranda warnings, and read the implied consent form. (R. Tab 5, p. 16.) Despite this, Petitioner

would not give a breath sample. (R. Tab 5, p. 16.) After being transported to the Kennebec County

Jail, Petitioner was bailed and issued a summons for the Waterville District Court. (R. Tab 6.)

On February 1, 2020, the Bureau of Motor Vehicles issued to Petitioner a notice of

suspension and an opportunity for hearing. (R. Tab 8.) Petitioner requested such a hearing

regarding his license suspension. (R. Tab 8.) The hearing was eventually held telephonically on

August 5, 2020. (R. Tab 3; R. Tab 5, p. 3.) At the conclusion of the hearing, after hearing

testimony from Deputy Polizzotti, the hearing officer issued the follow conclusion orally:

Issue one, I find that there was probable cause to believe that the
Petitioner was operating a motor vehicle while under the influence
of intoxicants, and I base my decision on the officer's observations
of glassy, watery eyes, slurred speech, and asking the Petitioner if
he had consumed any alcohol, in which the Petitioner acknowledged
that at some point during that day he had consumed some alcohol,
and that, in my opinion reaches - is enough to conclude that there
was probable cause to believe that he may have been operating under
the influence. With regard to number two, I also find that he was
informed of the consequences of failing to submit a chemical test as
the officer read him the implied consent form prior to conducting or
prior to asking him to provide a breath sample to complete the test.
With regard to issue number three, did the Petitioner fail to submit
to a test, again, based on the evidence that I have and the standard
of by a preponderance of the evidence, I'm going to find that the
Petitioner did fail to submit to a test. The officer has indicated that
he was not able to get a breath sample. There is no reading provided
by the readout of Exhibit No. 2, which is the test that evening, which
indicates to me that the Petitioner did not provide breath samples to
complete the test, so with that, I'm going to uphold the suspension

(R. Tab 5, pp. 30-32.) As highlighted, the hearing officer found three specific facts to

support her ultimate conclusion that it was more likely than not that Petitioner operated a motor

vehicle while under the influence of intoxicants. Those three facts were (1) the officer observed

glass, watery eyes; (2) the officer observed slurred speech; and (3) Petitioner acknowledged

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consuming something at some point that day.

Respondent attempts to support sustaining the suspension by suggesting that, though not

expressly found by the hearing officer, the record contains evidence that Deputy Polizzotti could

smell alcohol at the scene. (Resp't's Br. 2.) Deputy Polizzotti expressly testified at the hearing

that he did not document in his report that he smelled intoxicants on Petitioner. (R. Tab 5, pp. 22­

23.) To highlight this point, the following is the exchange between Petitioner's counsel and

Deputy Polizzotti as it pertains to the smell of intoxicants:

MR. MORGAN: And you indicated he had watery eyes and slurred
speech. Nowhere in your report do you indicate
the smell of intoxicants, correct?

OFFICER POLIZZOTTI: Correct.

MR. MORGAN: And you had a pretty lengthy conversation with
him before the field sobriety test requests out of
the car, right? You talked with him in his truck,
right?

OFFICER POLIZZOTTI: Yes, yes.

MR. MORGAN: And you also arrested him, so he had to get up and
do a pat-down of his person, correct?

OFFICER POLIZZOTTI: Yes.

MR. MORGAN: You transported him to the jail for purposes of the
- was it APD or where did you do the ­

OFFICER POLIZZOTTI: I went to the Winthrop-

MR. MORGAN: Winthrop, okay, sorry about that. You
transported him in your cruiser to Winthrop,
snowy day with the windows open, right?

OFFICER POLIZZOTTI: Windows closed.

MR. MORGAN: Windows closed, yeah, sorry.

OFFICER POLIZZOTTI: That's all right. Yeah, yeah. No, windows

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closed.

MR. MORGAN: Yeah. And you did a mouth check you indicate
in your report in anticipation of an intox test even
though one didn't happen, right?

OFFICER POLIZZOTTI: Correct.

(R. Tab 5, pp. 22-24.) Petitioner's counsel offered Deputy Polizzotti every opportunity to say that

he smelled alcohol on Petitioner in the various interactions between Petitioner and Deputy

Polizzotti, including riding in a cruiser together with the windows up. Not surprisingly, then,

Deputy Polizzotti made no mention of smelling intoxicants in his report. (R. Tab 6.) However, in

his affidavit in support of probable cause, Deputy Polizzotti did state that he could smell

intoxicants coming from inside the vehicle. (R. Tab 6.) The only context in which the afiidavit in

supp01i of probable cause was discussed pertained to the order in which Deputy Polizzotti would

produce the affidavit and the police report:

HEARING OFFICER: Okay. And you write your report up.
Approximately how close in time to the time of
the event to the time that you write your report?

OFFICER POLIZZOTTI: Usually when it comes to arrests where we bring
them into custody, the report - the majority of the
report is done right after the arrest because we
have to submit the PC affidavit, and then within a
couple days, I'll usually clean it up so that it's got
all the - everything in there that I need and have
everything attached to it, so I'd say within a week
everything will be together, but the important
details will be in typically that night.

(R. Tab 5, pp. 18-19.) According to his testimony, Deputy Polizzotti would usually draft up the

probable cause affidavit and then "clean it up" to reflect his final report. It is not clear if that was

the order in which he drafted the documents in this case, but it is the only evidence in the record

to explain the difference between the probable cause affidavit and the actual report. Importantly,

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after hearing Deputy Polizzotti's testimony, the hearing officer did not support her ultimate

determination that there was probable cause to believe Petitioner operated a motor vehicle while

under the influence of intoxicants with a factual finding that there was a smell of intoxicants. (R.

Tab 5, pp. 30-31.)

Respondent highlights authority suggesting that agency decisions can be upheld on the

basis of implicit findings in the record. E.g., City of Old Town v. Expera Old Town, LLC, 2021

ME 23, ~ 22, _A.3d_ (alterations, citations, and quotation marks omitted) ("The Board's

findings must be adequate to indicate the basis for the decision and to allow meaningful judicial

review. Nevertheless, if there is sufficient evidence on the record, the Board's decision will be

deemed supported by implicit findings."). Given how the testimony proceeded before the hearing

officer at which she made her ultimate finding regarding probable cause on the record at the

conclusion of the hearing, it may be more apt to say that she made an implicit finding that Deputy

Polizzotti did not smell intoxicants on Petitioner. Because of the presence of the probable cause

affidavit in comparison to the unique manner in which the testimony unfolded before the hearing

officer before she made her ruling on the record, the Court remands the matter to the hearing officer

to make additional findings of fact regarding the presence or absence of the smell of alcohol. See

5 M.R.S. § 11007(4)(B).

The entry is:

1. The case is REMANDED to the Secretary of State for proceedings consistent with
this decision.
2. The Clerk is directed to incorporate this Order into the docket by ref~rence pursuant
to M.R. Civ. P. 79(a).

Dated:
Hon. M. Michaela Murphy
Justice, Maine Superior Court

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Date Filed: 09/02/2020
~5c~~4/21Kennebec Docket No. AP-20-34
County
J. Murphy F
Action: BOC

Anthony Smith vs State of Maine, Matthew
Dunlap

Plaintiff's Attorney Defendant's Attorney
Kurt Peterson, Esq
Walter McKee, Esq Donald Macomber, AAG
133 State St 6 State House Station
Augusta, ME 04330 Augusta, ME 04333

Date of Entry

09/02/20 Petition For Review of Agency Action, filed. s/McKee, Esq.

10/30/20 Entry of Appearance for the Respondent, Secretary of State, Donald W Macomber, AAG

10/30/20 Record of Proceedings filed. s/Macomber, AAG

10/30/20 Notice and Briefing Schedule issued.
Notice sent to counsel/parties

12/11/20 Petitioner's Rule BOC Brief, filed (12/07/20). s/McKee, Esq.

12/29/20 Respondent's Brief, filed (12/28/20). s/Macomber, AAG

01/06/21 Petitioner's Rule BOC Reply Brief, filed. s/Peterson, Esq
Received via email with Notice of Email Filing and Deadline for Family Matters
and Civil Cases

01/08/21 The Secretary of State is not requesting oral argument so as far as we are concerned
The matter can be submitted for decision on the briefs, filed via email (01/06/21)
s/Macomber, AAG.

01/08/21 Counsel for Plaintiff response to email from Donald Macomber, AAG, dated 01/06/21.
Works for me, filed via email (01/06/21). s/McKee, Esq

04/22/21 ORDER SETTING ARGUMENT, Murphy, J.
The clerk is directed to to set Zoom oral argument for 5/7/21 at 12:30p.m. and with notice
to counsel.
Copies mailed to attys of record.
Notice of Zoom link sent to attys of record.

05/07/21 Oral Argument HELD. Murphy, J
Under Advisement.

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