Mack v. Secretary of State, Bureau of Motor Vehicles

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. AP-2021-31
)
JOSEPH MACK, )
)
Petitioner, )
)
V. ) M.R. Civ. P. BOC DECISION
)
SECRETARY OF STATE, BUREAU )
OF MOTOR VEHICLES )
)
Respondent. )

Petitioner Joseph Mack ("Mr. Mack") seeks judicial review, pursuant to M.R. Civ.

P. SOC, of a decision of a hearing examiner for the Secretary of State, Bureau of Motor

Vehicles denying Mr. Mack's petition for review of a three-year administrative

suspension of his license pursuant to 29-A M.R.S. § 2453 (2021). Mr. Mack appeals on the

grounds that the record does not support the hearing examiner's conclusions that the

arresting officer had probable cause to believe that Mr. Mack had operated a motor

vehicle with an alcohol level in excess of 0.08 grams per 210 liters of breath, and that Mr.

Mack did operate a motor vehicle with an excessive alcohol level. For the following

reasons, the Court denies Mr. Mack's appeal.

I. Background

On July 26, 2021, at 2:09 a.m., Officer Anthony Balko of the Westbrook Police

Department found Mr. Mack asleep in his vehicle, which was stopped in the middle of

the roadway, running, and in drive. (R. Tab 5, at 10, 17, 48.) When Officer Balko asked

Mr. Mack to put the car in park, Mr. Mack struggled to do so. (R. Tab 5, at 20.) There was

an odor of alcohol on Mr. Mack's breath, and he admitted to having two drinks about

two hours earlier. (R. Tab 5, at 10, 48.) Mr. Mack's speech was slurred. (R. Tab 5, at 27.)

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Officer Balko administered the horizontal gaze nystagmus ("HGN") test, during

which Mr. Mack presented four valid clues. (R. Tab 5, at 11-13, 48.) Mr. Mack did not

follow Officer Balko's instructions for the final two clues. (R. Tab 5, at 11, 48.) Officer

Balko was trained to administer the HGN test at the Maine Criminal Justice Academy.

(R. Tab 5, at 15-16.) He was certified in the HGN test, but not proficient. (R. Tab 5, at 15­

16, 49.) Nonetheless, the hearing examiner found that Officer Balko was adequately

trained to administer the HGN test and properly administered the test. (R. Tab 5, at 49­

50.) Mr. Mack refused to perform the walk-and-turn test and the one-leg stand test. (R.

Tab 5, at 13-14, 17, 48-49.)

Mr. Mack was transported to Westbrook Police Station. (R. Tab 5, at 14-15.) Before

administering the Intoxilyzer breath alcohol test, Officer Balko checked Mr. Mack's

mouth and then conducted an observation period of at least fifteen minutes during which

Officer Balko did not break audio or visual contact with Mr. Mack. (R. Tab 5, at 14-15, 49.)

No disqualifying events occurred during the observation period. (R. Tab 5, at 15.) The

test result was 0.12 grams of alcohol per 210 liters of breath. (R. Tab 5, at 49; R. Tab 7, at

1.)

Effective September 17, 2021, the Secretary of State administratively suspended

Mr. Mack's driver's license based on a report from Officer Balko that Mr. Mack had

operated a motor vehicle with an excessive alcohol level on July 26, 2021. (R. Tab 6, at l;

Tab 8, at 1-2.) At Mr. Mack's request, an administrative hearing was held by telephone

on October 20, 2021, to address whether, by a preponderance of evidence (1) there was

probable cause to believe that 1'Ir. Mack was operating a motor vehicle with an alcohol

level of 0.08 grams or more per 100 milliliters of blood or 210 liters of breath, and (2) Mr.

Mack had operated a motor vehicle with an alcohol level of 0.08 grams or more per 100

milliliters of blood or 210 liters of breath. (R. Tab 8, at 5; Tab 5, at 1-52.)
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The hearing examiner credited Officer Balko's testimony and report on the

location of the car, whether the car was in drive and on, and the validity of the breath test

observation period. (R. Tab 5, at 50.) The hearing examiner concluded that, by a

preponderance of the evidence, probable cause to believe that Mr. Mack was operating a

motor vehicle with an excessive alcohol level existed, and that Mr. Mack had operated a

motor vehicle with an excessive alcohol level. (R. Tab 5, at 51-52.)

On appeal, Mr. Mack primarily argues that the record does not support the hearing

examiner's conclusions because (1) Officer Balko did not see Mr. Mack operating the

vehicle or attempting to operate the vehicle, (2) the HGN test was not reliable, and (3) the

observation period before administering the breath alcohol test was invalid.

II. Rule SOC Standard

Review of final actions of state agencies 1:;y the Superior Court is governed by the

Maine Administrative Procedures Act, 5 M.R.S. §§ 11001-11008 (2021), and M.R. Civ. P.

SOC. The court is authorized to reverse an agency's decision if the decision is in violation

of constitutional or statutory provisions, in excess of statutory authority, made upon

unlawful procedure, affected by bias or error of law, unsupported by substantial

evidence in the record, or arbitrary or capricious, or characterized by abuse of discretion.

5 M.R.S. § 11007(4)(C); see Goodrich v. Me. Pub. Emps. Ret. Sys., 2012 ME 95, 'l[ 6, 48 A.3d

212. The court shall not substitute its judgment for that of the agency en questions of fact.

5 M.R.S. § 11007(3). The party seekbg t0 vacate a state agency decision has the burden of

persuasion on appeal. Anderson v. Me. Pub. Emps. Ret. Sys., 2009 ME 134, 'l[ 3, 985 A.2d

501.

III. Discussion

A. Probable Cause

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Generally, probable cause exists where information allows a prudent and cautious

person to believe that a crime was or is being committed. State v. Palmer, 2018 ME 108, 'II

10, 189 A.3d 1009. To have probable cause to believe a person was operating a motor

vehicle while impaired, "an officer only needs evidence sufficient to support the

reasonable belief that the person's senses are affected to the slightest degree, or to any

extent, by the alcohol that person has had to drink." Id. (quoting State v. Forsyth, 2002 ME

75, 'II 14, 795 A.2d 66 (quotation marks omitted)); see Turner v. Sec'y of State, 2011 ME 22,

'II 11, 12 A.3d 1188. This is a "very low threshold." State v. Webster, 2000 ME 115, 'II 7, 754
A.2d 976. "The symptoms of impairment have not been exhaustively listed, but indude

erratic driving, slurred speech and glassy eyes, a smell of alcohol on the driver's breath,

an admission by the driver that he had consumed alcohol, and poor performan:e on field

sobriety tests." Turner, 2011 ME 22, 'I[ 11, 12 A.3d 1188; see Palmer, 2018 ME 103, 'II 10, 189

A.3d 1009. "A reasonable suspicion to support probable cause can exist independent of

any evidence of actual impaired driving." Webster, 2000 ME 115, 'II 7, 754 A.2d 976.

Mr. Mack argues that Officer Balko did not see Mr. Mack operating the vehicle or

attempting to operate the vehicle. Attempted 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, 'II 9, 780 A.2d 295. Mr. Mack places great weight

on the fact that, because he was unconscious when Officer Balko fcund him, h~ could not

have intended to operate the vehicle at that time. However, Mr. Mack was found with

the vehicle in the middle of the roadway, in drive, and running. Thus, the hearing

examiner's finding that Officer Balko had probable cause to believe that Mr. Mack did

intentionally operate or attempt to operate the motor vehicle is supported by substantial

evidence.

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Next, Mr. Mack argues that the hearing examiner erred in finding that Officer

Balko had probable cause to believe that Mr. Mack was impaired by the consumption of

alcohol. Specifically, Mr. Mack contests the reliability of the HGN test in this case because

Officer Balko was not deemed proficient in administering the HGN test. The hearing

examiner found that Officer Balko was adequately trained to administer the HGN test

and properly administered the test. See State v. Simons, 2017 ME 180, 'l[ 15, 169 A.3d 399.

Substantial evidence in the record supports this finding.

Mr. Mack presented four valid clues during the HGN test. Moreover, Officer Balko

found Mr. Mack unconscious in his vehicle, which was stopped in the middle of the

roadway, in drive. Mr. Mack struggled to put the car in park. His speech was slurred,

there was an odor of alcohol on his breath, and he admitted to having two drinks. Thus,

substantial evidence in the record supports the hearing examiner's finding of probable

cause.

B. Operation of a Motor Vehicle with Excessive Alcohol Levels

Finally, Mr. Mack argues that the hearing examiner's conclusion that Mr. Mack

operated a motor vehicle with excessive alcohol levels was erroneous because the

observation period was invalid. The hearing examiner credited Officer Balko' s testimony

that Mr. Mack's car was running, in drive, and stopped in the middle of the roadway.

The hearing examiner found that the breath alcohol test was preceded by a valid mouth

check and valid observation period, which is suppo:ted by Officer Balko' s testimony. The

Court may not substitute its judgment for that of the hearing officer merely because Mr.

Mack's testimony, if credited, could support a different finding. 5 M.R.S. § 11007(3); Dodd

v. Sec'y of State, 526 A.2d 583, 584 (Me. 1987). The breath alcohol test resulted in a reading

of 0.12 grams per 210 liters of breath. Thus, substantial evidence in the record supports

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the hearing examiner's finding that Mr. Mack operated a motor vehicle with excessive

alcohol levels.

IV. Conclusion

For the foregoing reasons, the Court must deny Mr. Mack's appeal.

The entry is:

Petitioner Joseph Mack's Rule SOC appeal is DENIED.

The Clerk is directed to incorporate this Decision into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

G y Kennedy, Justice
Superior Court

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