Opinion
AP-20-3
09-02-2020
NICHOLAS BARAO, Petitioner v. SECRETARY OF STATE, Respondent
DECISION AND ORDER
WILLIAM R. STOKES JUSTICE
The matter before the court is the appeal by Nicholas Barao, who challenges the decision of a hearing officer for the Bureau of Motor Vehicles (BMV) upholding the suspension of his license for failure to submit to a urine test under 29-A M.R.S. § 2521. This appeal has been brought in accordance with 5 M.R.S. §§ 11001-11008 (Maine Administrative Procedure Act) and M.R. Civ. P. 80C.
FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 2019, a Maine State Police Trooper pulled Barao over for driving erratically. The Trooper, a Drug Recognition Expert, noticed that Barao's eyes were bloodshot and watery, and the interior of his car smelled of alcohol and burnt cannabis. Accordingly, the Trooper requested that Barao submit to intoxilyzer and field sobriety testing. Mr. Barao cooperated. The intoxilyzer test resulted in a 0.07 BrAC, though the Trooper observed "very obvious impairment" along with multiple clues during the field sobriety tests.
The Trooper did not think that his observations of Barao were consistent with the intoxilyzer results, so he attempted to perform a Drug Recognition Expert evaluation. Mr. Barao asked what would happen if he refused to participate in the evaluation, and the Trooper informed him that "either way, [the Trooper's] report would be submitted to the district attorney's office." Mr. Barao declined to participate.
The Trooper proceeded to request a urine sample from Barao. He read Barao the State Police Blood/Urine Waiver Form, which stated: "I am requesting your free and voluntary consent to search your blood or urine for the purposes of looking for evidence of Intoxicants. You do not have to consent." Mr. Barao asked what would happen if he did not provide a urine sample. In response, the Trooper read him the BMV's Implied Consent Form while Barao followed along with his own copy. The Implied Consent Form listed the consequences of refusing to submit to a chemical test under Maine Law and stated in relevant part:
By operating or attempting to operate a motor vehicle in this State, you have a duty to submit to and complete chemical tests to determine your alcohol level and drug concentration.
If you fail to comply with your duty to submit to and complete chemical tests, your driver's license or permit or right to apply for or obtain a license, will be suspended for a period up to 6 years.
Mr. Barao informed the Trooper that he wanted to refuse the test, so he initialed and signed the Waiver Form accordingly. Likewise, Barao signed the Implied Consent Form, acknowledging that he had been advised of the various consequences of failing to comply with his "duty to submit to and complete a chemical test" and "d[id] not wish to submit to a test."
Based on his refusal, the Secretary of State administratively suspended Barao's license for 275 days. See 29-A M.R.S. § 2521(1), (5), (6); 29-A M.R.S. § 2525(1). Mr. Barao was notified of the suspension in a letter mailed on July 10, 2019. Through counsel, Barao requested an administrative hearing, which was held on December 16, 2019. Barao's sole contention was that he was denied due process because certain language in the Waiver Form-namely, the language stating, "You do not have to consent"-created confusion regarding his duty to submit to a test.
After hearing evidence and argument in the matter, the hearing officer upheld the suspension of Barao's license in a written decision dated December 19, 2019. The hearing officer found that the Trooper had probable cause to believe that Barao had operated a vehicle under the influence, that he "knowingly failed to submit to a test," and that he "was informed of the consequences of failing to submit to a test." See 29-AM.R.S.§ 2521(8).
Moreover, the hearing officer rejected Barao's due process argument. The hearing officer reasoned that the challenged language was a "factually correct statement" and "disagree[d] that this language c[ould] reasonably be read in a way that confuses or negates the subsequently read warnings from the implied consent form."
Barao filed a Rule 80C appeal in this court on January 21, 2020. Pursuant to M.R. Civ. P. 7(b)(7) and 80C(1), the court will decide this appeal without oral argument.
DISCUSSION
The Law Court has frequently reaffirmed the principle that judicial review of administrative agency decisions is "deferential and limited." Passadumkeag Mountain Friends v. Bd. of Envtl. Prot., 2014 ME 116, ¶ 12, 102 A.3d 1181 (quoting Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010 ME 18, ¶ 12, 989 A.2d 1128). The court is not permitted to overturn an agency's decision "unless it: violates the Constitution or statutes; exceeds the agency's authority; is procedurally unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or error of law; or is unsupported by the evidence in the record." Kroger v. Dep't of Envtl. Prot., 2005 ME 50, ¶ 7, 870 A.2d 566. The court may not substitute its judgment for that of the agency's on questions of fact. 5 M.R.S. § 11007(3). The party seeking to vacate a state agency decision has the burden of persuasion on appeal. Anderson v. Me. Pub. Emp. Ret. Sys., 2009 ME 134, ¶ 3, 985 A.2d 501.
On appeal, Barao does not challenge the factual findings of the hearing officer. Instead, he raises legal challenges regarding due process and the statutory construction of 29-A M.R.S. § 2521(1). These issues are addressed in turn.
Issue I: Due Process
Barao argues that his due process rights were violated when the State provided him with "conflicting and confusing information in regards to his responsibility to submit to chemical testing." Pet'r Br. at 6. Specifically, Barao takes issue with the following language in the Waiver Form: "I am requesting your free and voluntary consent to search your blood or urine for the purposes of looking for evidence of Intoxicants. You do not have to consent." Pet'r Br. at 10. Mr. Barao argues that this statement was legally incorrect and conflicted with subsequently given statements, which informed him that he had a duty to submit. Pet'r Br. at 10-12. According to Barao, "there [wa]s a risk that the information provided to [him] would result in an unjust deprivation of his license." Pet'r Br. at 12.
The court is not persuaded by Barao's arguments and concludes that no due process violation occurred in this case.
Under Maine law, "[i]f there is probable cause to believe a person has operated . a motor vehicle while under the influence of intoxicants, that person shall submit to and complete a test to determine an alcohol level and the presence of a drug or drug metabolite by analysis of blood, breath or urine." 29-A M.R.S. § 2521(1). "Serious consequences are imposed upon those drivers who refuse to submit to a test," including losing one's driving privileges. State v. Chase, 2001 ME 168, ¶ 6, 785 A.2d 702; 29-A M.R.S. § 2521(5). For this reason, "the Legislature has required persons suspected of operating under the influence to be protected from unknowingly triggering those consequences." Chase, 2001 ME 168, ¶ 6; 29-A M.R.S. § 2521(3). "Thus, the informed consent warnings are structured to inform the driver that he has a duty to take the test and that his failure to cooperate will result in serious sanctions." Chase, 2001 ME 168, ¶ 7. "They are not intended to provide a driver with the choice of taking or refusing" a test. Id.
Additionally, "there is a strong due process justification for requiring law enforcement officials to inform drivers of implied consent information and to refrain from giving drivers assurances that minimize the seriousness of a subsequent loss of license privileges." State v. Stade, 683 A.2d 164, 166 (Me. 1996). Indeed, the "loss of [one's] driver's license is a property interest worthy of due process protection." Id. "[W]hen a [person] asserts that the circumstances surrounding a refusal to take a blood-alcohol test have violated her right to due process, [the Law Court has] review[ed] the procedures used by the police to determine if the conduct offends the community's sense of justice, decency, and fair play." State v. Bavouset, 2001 ME 141, ¶ 7; 784 A.2d 27 (internal quotation marks omitted).
Over the years, the Law Court has considered various cases involving arrestees who alleged due process violations based on the implied consent information provided. In Stade, for instance, the Law Court found a due process violation where a policeman failed to warn the arrestee of the consequences of refusal and incorrectly assured the arrestee that he could obtain a driver's license for work purposes. 683 A.2d at 165-66. In that case, the Stade court reasoned that "the officer's providing [the arrestee] with false information, coupled with the officer's failure to read the implied consent form, was fundamentally unfair." Id. at 166.
In State v. Bavouset, by contrast, the Law Court rejected a due process challenge even though an officer at one point misstated the consequences of refusing a test. 2001 ME 141, ¶¶ 2, 4-8, 784 A.2d 27. There, the officer-after correctly informing the arrestee multiple times of the consequences of a refusal- "incorrectly informed [the arrestee] that he 'believed' the mandatory period of incarceration for refusing was forty-eight hours, when in fact it [wa]s ninety-six hours." Id. ¶¶ 2, 5. The Law Court emphasized that the arrestee "was correctly informed about the consequences of refusing the test and was not assured of anything given that [the officer] gave the incorrect information only after some time and with uncertain language." Id. ¶ 6. Under these circumstances, the Bavouset court was satisfied that the arrestee was "sufficiently informed that significant negative consequences would result from her refusal" and concluded that the "officer's misstatement d[id] not offend the community's sense of justice, decency, or fair play." Id. ¶ 8.
Similarly, in State v. Cote, the Law Court held that "[t]he failure to warn [an arrestee] of every possible consequence of his decision does not rise to the level of a due process violation when the [arrestee] is sufficiently warned that his refusal will have significant negative consequences" and "[i]n the absence of misleading assurances which may unfairly 'trick' the [arrestee]." 1999 ME 123, ¶¶ 18-17, 736 A.2d 262.
Precedent therefore suggests that the Due Process Clause does not require perfection in administering implied consent information. See Bavouset, 2001 ME 141, ¶¶ 2, 4-8; Cote, 1999 ME 123, ¶¶ 18-17. Nor does a misstatement necessarily result in a deprivation of due process. See Bavouset, 2001 ME 141, ¶¶ 2, 4-8. Moreover, the Law Court has been unwilling to find due process violations when an arrestee is "sufficiently informed that significant negative consequences would result from [a] refusal," and when the encounter is free from "misleading assurances which may unfairly 'trick'" the arrestee. Cote, 1999 ME 123, ¶¶ 17-21; see also Bavouset, 2001 ME 141, ¶¶ 4-8.
In this case, the inclusion of the language in the Waiver Form did not amount to a due process violation. This is true even if the court assumes that the challenged language was incorrect. The court reaches this conclusion for several reasons.
First, cases like Bavouset show that an officer's implied consent information can satisfy due process even if the information contains some legally inaccurate information. Barao's argument depends in large part on the notion that he received some incorrect information, but it does not necessarily follow that a due process violation occurred.
Second, Barao was "sufficiently informed that significant negative consequences would result from [a] refusal," including losing his license. Cote, 1999 ME 123, ¶ 17; see also Bavouset, 2001 ME 141, ¶¶ 6, 8. The hearing officer found that Barao was informed of the consequences of failing to submit to a test, and the record supports this finding. While Barao argues that the information regarding his duty to consent was confusing and conflicting, he makes no argument that he was misinformed or unaware of the consequences of failing to consent to the urine test. Suspending Barao's license for 275 days does not seem fundamentally unfair when he was unequivocally informed that a refusal could result in suspension of his license for up to 6 years.
Third, the Trooper did not make any misleading assurances that might have tricked Barao into refusing the test. Compare Bavouset, 2001 ME 141, ¶ 6; Cote, 1999 ME 123, ¶¶ 18-21, with Stade, 683 A.2d at 165-66. The Trooper did not assure Barao that refusing to take the test was a '"safe harbor.'" Cote, 1999 ME 123, ¶ 20 (quoting South Dakota v. Neville, 459 U.S. 553, 566 (1983)). Nor did he assure Barao that the consequences of a refusal were less severe than they actually were. Moreover, as in Bavouset, the alleged misstatement was offered once in a case where the arrestee was otherwise properly informed. Indeed, Barao was not only informed of the consequences of a refusal, but of his duty to submit as well. Specifically, after offering the challenged statement, the Trooper read the Implied Consent Form, thereby verbally informing Barao that he had a duty to submit to chemical tests, Barrao was given the opportunity to read the Implied Consent Form, which referred to the "duty to submit" multiple times, and he signed the Implied Consent form, acknowledging that he had been advised of the various consequences of failing to comply with his "duty to submit to and complete a chemical test" and "d[id] not wish to submit to a test." Under these circumstances, the court is satisfied that Barao was not subjected to misleading assurances that tricked him into refusing the test.
Mr. Barao also appears to argue that he was justified in believing that he did not have to consent because the Trooper requested a urine test without a warrant. Barao, however, was never assured that the police needed a warrant to obtain a urine sample from him.
Finally, Barao's reliance on Roberts v. Maine, 48 F.3d 1287 (1st Cir. 1995) is misplaced because that case is distinguishable. In Roberts, the defendant was led to believe that no mandatory incarceration would result from a refusal, when in fact a 48-hour mandatory minimum was required by law. Id. at 1289, 1295. The arrestee ultimately refused the test, was convicted of OUI, and was sentenced to the mandatory minimum. Id. at 1289. Here, by contrast, Barao was informed that the suspension of his license would be a consequence of his refusal, and he made the decision to refuse with knowledge of this fact. Unlike the arrestee in Roberts, Barao was not subjected to any consequences that he was unaware of.
In short, even if the court were to assume that the challenged statement was inaccurate, Barao cannot establish a due process violation on these facts. Accordingly, the hearing officer correctly rejected Barao's due process argument below.
Issue II: Statutory Construction.
Barao also argues that based on the language of 29-A M.R.S. § 2521(1), a person need only submit to "a test," not multiple tests. Pet'r Br. at 13. Thus, Barao says, he was not required to submit to the urine test because he had already submitted to a breath test. Pet'r Br. at 13. The Secretary counters that Barao failed to preserve this issue during the proceedings before the agency, and in any event, he had a duty to submit to the urine test pursuant to 29-A M.R.S. § 2525. Resp't Br. at 3 n.l.
"Generally, plaintiffs in a Rule 8OC proceeding for review of final agency action are expected to raise any objections they have before the agency in order to preserve these issues for appeal." New England Whitewater Ctr., Inc. v. Dep`t of Inland Fisheries & Wildlife, 550 A.2d 56, 58 (Me. 1988). "Issues not raised at the administrative level are deemed unpreserved for appellate review." Id. Unpreserved issues may be dismissed. See id. at 61.
Here, Barao did not raise his statutory construction argument before the agency. Accordingly, the court dismisses this issue because it is unpreserved.
Even if the court were to review the issue, Barao's argument still fails because he has not shown any error, let alone obvious error, on the part of the agency. Mallinckrodt U.S. LLC v. Dep`t of Envtl. Prot., 2014 ME 52, 5J 29, 90 A.3d 428 (explaining that unpreserved issues will be "review[ed] only for obvious error affecting substantial rights"). Section 2521 states that upon probable cause of an OUI, a "person shall submit to and complete a test to determine an alcohol level and the presence of a drug or drug metabolite by analysis of blood, breath or urine." 29-A M.R.S. § 2521(1) (emphasis added). Although the statute refers to "a test," it contemplates that testing may be done to determine both alcohol level and the presence of drugs. As the court reads it, a person has a duty to submit to "a test" to determine alcohol level as well as "a test" to determine drugs so long as probable cause of an OUI exists. Additionally, as the Secretary correctly points out, section 2525 contemplates that a person must submit to a urine test for the separate purpose of determining the presence of a drug if a drug recognition expert (like the Trooper in this case) has the necessary probable cause. 29-A M.R.S. § 2525(1). Regardless of whether the court's reading is correct, the statutory language is not so obviously in accord with Barao's interpretation that the hearing officer can be faulted for failing to address the issue sua sponte.
CONCLUSION
The entry is:
The Petition for Judicial Review is DENIED, and the Secretary's decision suspending the Petitioner's license is AFFIRMED.