MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	122	
Docket:	   Oxf-18-31	
Argued:	   July	19,	2018	
Decided:	  August	16,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                     JOSEPH	L.	RICHARD	
                                              	
                                             v.	
                                              	
                                    SECRETARY	OF	STATE	
	
	
HUMPHREY,	J.	

        [¶1]	 	 Joseph	 L.	 Richard	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Oxford	County,	Clifford,	J.)	affirming	the	decision	of	the	Secretary	of	State	to	

impose	 a	 three-year	 administrative	 suspension	 of	 Richard’s	 driver’s	 license	

because	of	a	fatal	accident	that	he	caused	in	2014.		See	5	M.R.S.	§	11008	(2017);	

29-A	 M.R.S.	 §	2458(2-A)	 (2017);	 M.R.	 Civ.	 P.	 80C.	 	 Richard	 challenges	 (1)	 the	

court’s	determination1	that,	as	a	matter	of	law,	29-A	M.R.S.	§	2458(2-A)	is	not	

punitive	or	criminal	in	nature	and	therefore	does	not	require	a	higher	standard	

of	proof,	and	(2)	the	determination	of	the	Secretary	of	State’s	Hearing	Examiner	




    1		The	Secretary	of	State’s	Hearing	Examiner	declined	to	rule	on	this	issue	because	she	concluded	

that	the	determination	was	beyond	her	authority.			
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that	Richard’s	operation	at	the	time	of	the	accident	was	negligent.		We	affirm	

the	judgment.	

                                  I.		BACKGROUND	

      [¶2]	 	 The	 following	 undisputed	 facts	 are	 taken	 from	 the	 Secretary	 of	

State’s	decision,	including	the	Hearing	Examiner’s	findings,	and	the	procedural	

facts	 are	 drawn	 from	 the	 Superior	 Court’s	 record.	 	 See	Manirakiza	v.	 Dep’t	 of	

Health	&	Human	Servs.,	2018	ME	10,	¶	2,	177	A.3d	1264.			

      [¶3]		On	July	15,	2014,	Richard	was	driving	on	a	street	in	Brewer	when	

his	vehicle	crossed	the	center	line	and	collided	with	an	oncoming	vehicle.		Two	

of	the	three	passengers	in	his	vehicle	died	as	a	result	of	the	injuries	that	they	

sustained	in	the	collision.			

      [¶4]	 	 The	 Secretary	 of	 State	 sent	 Richard	 a	 notice	 of	 suspension	 on	

May	13,	2016,	advising	him	that,	in	accordance	with	29-A	M.R.S.	§	2458(2-A),	

his	license	to	operate	a	motor	vehicle	would	be	suspended	for	a	period	of	three	

years,	 effective	 May	 27,	 2016.	 	 Richard	 requested	 a	 hearing	 to	 review	 the	

suspension,	and	the	hearing	was	held	before	a	Hearing	Examiner	on	August	15,	

2016.			

      [¶5]		At	the	hearing,	Richard	testified	that	he	did	not	remember	the	crash,	

but	he	asserted	that	a	cardiac	event	had	caused	him	to	lose	consciousness.		The	
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Hearing	Examiner	found	that	there	was	insufficient	evidence	in	the	record	to	

support	that	theory	because	“[h]is	physician	[was]	only	able	to	speculate	that	a	

connection	 between	 the	 accident	 and	 Mr.	 Richard’s	 cardiac	 condition	 [was]	

possible.	 	 And	 the	 hospital	 records	 indicate	 Mr.	 Richard	 experienced	 atrial	

fibrillation	one	week	after	the	accident,	with	no	known	prior	history	of	such	an	

event.”			

       [¶6]	 	 In	 a	 decision	 dated	 September	 7,	 2016,	 the	 Hearing	 Examiner	

upheld	 the	 Secretary	 of	 State’s	 three-year	 suspension	 of	 Richard’s	 driver’s	

license.		The	Hearing	Examiner	found	and	concluded	that	Richard	negligently	

operated	a	motor	vehicle	when	he	fell	asleep	while	driving	and	swerved	into	

oncoming	 traffic,	 and	 determined	 that	 Richard’s	 negligent	 operation	 of	 the	

motor	vehicle	caused	the	deaths	of	two	other	people.		The	Hearing	Examiner	

explained	that	“[o]ne	of	the	most	basic	and	critical	requirements	placed	on	all	

drivers	 is	 to	 maintain	 control	 of	 the	 motor	 vehicle	 at	 all	 times.	 	 No	 external	

interference	caused	Mr.	Richard	to	leave	his	travel	lane.		As	he	admitted	to	[the	

detective]	just	hours	after	the	crash,	he	recognized	that	he	was	feeling	tired	as	

he	drove	but	elected	to	keep	driving	until	he	reached	a	truck	stop.		That	decision	

unfortunately	had	terrible	consequences.”			
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          [¶7]	 	 On	 October	 27,	 2016,	 Richard	 petitioned	 the	 Superior	 Court	 for	

judicial	review	of	final	agency	action	pursuant	to	5	M.R.S.	§	11001(1)	(2017)	

and	 M.R.	 Civ.	 P.	 80C.2	 	 After	 holding	 oral	 argument,	 the	 court	 affirmed	 the	

Secretary	of	State’s	decision	 in	 an	order	dated	September	26,	2017.		Richard	

filed	 a	 motion	 for	 reconsideration,	 which	 was	 denied,	 and	 Richard	 timely	

appealed	to	us.		See	5	M.R.S.	§	11008;	M.R.	App.	P.	2B(c)(2)(D).			

                                               II.		DISCUSSION	

A.	       Standard	of	Proof	

	         [¶8]	 	 Richard	 first	 argues	 that	 29-A	 M.R.S.	 §	 2458(2-A)	 is	 punitive	 in	

nature	 and	 therefore	 the	 Secretary	 of	 State	 should	 have	 to	 find	 negligent	

operation	 based	 on	 clear	 and	 convincing	 evidence	 or	 beyond	 a	 reasonable	

doubt.	 	 The	 Secretary	 of	 State	 applied	 the	 preponderance	 of	 the	 evidence	

standard	 of	 proof	 in	 accordance	 with	 the	 administrative	 hearing	 procedure	

statute,	29-A	M.R.S.	§	2484(3)	(2017).			




     2	 	 Although	 Richard’s	 petition	was	 filed	 more	 than	 fifty	 days	 after	 the	 date	 of	 the	 Secretary	 of	

State’s	decision	and	was	therefore	potentially	untimely,	there	is	no	evidence	in	the	record	before	us	
to	establish	when	Richard	received	the	Secretary	of	State’s	decision.		See	5	M.R.S.	§	11002(1),	(3)	
(2017)	(“The	petition	for	review	shall	be	filed	within	30	days	after	receipt	of	notice	.	.	.	.”	(emphasis	
added)).		In	the	absence	of	evidence	or	assertions	to	the	contrary,	we	assume	that	Richard’s	petition	
was	timely	filed	and	that	the	Superior	Court	had	subject	matter	jurisdiction	over	the	case.		See	id.;	
Arsenault	 v.	 Arsenault,	 2008	 ME	 75,	 ¶	 6,	 946	 A.2d	 412	 (explaining	 that	 where	 there	 is	 no	 record	
evidencing	timeliness,	and	where	there	is	no	challenge	to	timeliness,	we	will	assume	that	an	action	
was	timely).	
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	      [¶9]	 	 The	 question	 of	 whether	 an	 offense	 defined	 by	 statute	 is	 civil	 or	

criminal	is	a	matter	of	statutory	construction,	see	State	v.	Anton,	463	A.2d	703,	

705	 (Me.	 1983),	 and	 we	 first	 look	 to	 the	 plain	 language	 of	 the	 statute	 to	

determine	the	Legislature’s	intent.		See	Dickau	v.	Vt.	Mut.	Ins.	Co.,	2014	ME	158,	

¶	19,	107	A.3d	621.		We	will	take	“into	account	the	subject	matter	and	purposes	

of	 the	 statute,	 and	 the	 consequences	 of	 a	 particular	 interpretation,”	 and	 give	

“due	weight	to	design,	structure,	and	purpose	as	well	as	to	aggregate	language.”		

Id.	¶¶	21-22	(quotation	marks	omitted).	

	      [¶10]		By	its	plain	language,	the	statute	is	civil	in	nature	and	imposes	a	

preponderance	of	the	evidence	standard	of	proof	to	suspension	and	revocation	

hearings.		See	29-A	M.R.S.	§	2484(3)	(“Unless	otherwise	provided,	the	Secretary	

of	State	shall	make	a	determination	by	a	preponderance	of	the	evidence.”).			

	      [¶11]	 	 Despite	 the	 Legislature’s	 plain	 intent	 to	 make	 29-A	 M.R.S.	

§	2458(2-A)	 a	 civil	 statute,	 that	 purpose	 may	 not	 be	 achieved	 by	 merely	

designating	 the	 offense	 as	 a	 civil	 offense.	 	 See	 Anton,	 463	 A.2d	 at	 706.	 	 “The	

statutory	 scheme	 must	 be	 analyzed	 to	 determine	 whether	 it	 is	 so	 punitive	

either	 in	 purpose	 or	 effect	 as	 to	 negate	 that	 intention	 with	 regard	 to	 the	

constitutional	 protection	 at	 issue.”	 	 Id.	 (quotation	 marks	 omitted).	 	 We	 must	

take	into	account		
6	

      [w]hether	 the	 sanction	 involves	 an	 affirmative	 disability	 or	
      restraint,	 whether	 it	 has	 historically	 been	 regarded	 as	 a	
      punishment,	 whether	 it	 comes	 into	 play	 only	 on	 a	 finding	 of	
      scienter,	whether	its	operation	will	promote	the	traditional	aims	of	
      punishment—retribution	and	deterrence,	whether	the	behavior	to	
      which	it	applies	is	already	a	crime,	whether	an	alternative	purpose	
      to	 which	 it	 may	 rationally	 be	 connected	 is	 assignable	 for	 it,	 and	
      whether	it	appears	excessive	in	relation	to	the	alternative	purpose	
      assigned	.	.	.	.	
	
Id.	 (quoting	 Kennedy	 v.	 Mendoza-Martinez,	 372	 U.S.	 144,	 168-69).	 	 After	

considering	these	seven	factors,	we	conclude	that	section	2458(2-A)	is	not	so	

punitive	in	purpose	and	effect	as	to	render	it	a	criminal	offense.		See	id.	

      [¶12]		The	first	factor	in	our	analysis	is	whether	29-A	M.R.S.	§	2458(2-A)	

involves	 an	 affirmative	 disability	 or	 restraint.	 	 Anton,	 463	 A.2d	 at	 706.		

Suspension	of	a	driver’s	license	is	the	revocation	of	a	privilege	and	is	not	akin	

to	the	disability	or	restraint	on	liberty	that	is	caused	by	arrest	and	detention.		

See	State	v.	Savard,	659	A.2d	1265,	1267-68	(Me.	1995).	

      [¶13]	 	 With	 regard	 to	 the	 second	 factor,	 we	 note	 that	 the	 sanctions	

imposed	 by	 section	 2458(2-A)	 have	 not	 “historically	 been	 regarded	 as	 a	

punishment.”	 	 Anton,	 463	 A.2d	 at	 706	 (quotation	 marks	 omitted).	 	 We	 have,	

however,	 previously	 held	 that	 “[r]evocation	 of	 the	 license	 is	 nonpunitive	 in	

character,”	and	is	merely	intended	“to	provide	the	public	with	safe	roadways.”		

Savard,	659	A.2d	at	1268;	see	also	Anton,	463	A.2d	at	707	(“[S]uspension	of	an	
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operator’s	license	does	not	tend	to	make	the	offense	criminal	if	it	is	not	imposed	

to	 punish	 the	 individual	 but	 reflects	 a	 judgment	 that	 the	 violator	 should	 not	

continue	to	drive.”).		Our	conclusion	in	Savard	was	based	on	the	principle	that	

“[t]here	 exists	 no	 absolute	 right	 to	 obtain	 and	 hold	 a	 driver’s	 license.	 	 The	

driver’s	license	is	a	privilege	to	which	certain	rights	and	responsibilities	attach	

and	 for	 valid	 reasons	 involving	 public	 safety	 may	 be	 granted	 or	 withheld.	.	.	.		

The	 suspension	 of	 that	 privilege	 merely	 signifies	 the	 failure	 of	 the	 holder	 to	

comply	 with	 the	 agreed	 conditions.”	 	 Savard,	 659	 A.2d	 at	 1267-68	 (citations	

omitted).	

      [¶14]		Consideration	of	the	third	factor	also	does	not	disclose	a	punitive	

purpose—the	 suspension	 is	 not	 imposed	 based	 on	 a	 finding	 of	 scienter	

associated	 with	 the	 criminal	 law.	 	 See	 Anton,	 463	 A.2d	 at	 706.	 	 The	 only	

requirement	 for	 the	 suspension	 to	 become	 effective	 is	 that	 the	 offender	

negligently	 operated	 a	 motor	 vehicle	 in	 a	 manner	 that	 caused	 the	 death	 of	

another	 person,	 and	 neither	 knowledge	 nor	intent	is	 an	 element	of	negligent	

operation.		See	29-A	M.R.S.	§	2458(2-A).	

      [¶15]	 	 With	 regard	 to	 the	 fourth	 factor,	 Richard	 contends	 that	 the	

Legislature	 had	 a	 punitive	 objective—retribution	 and	 deterrence—when	 it	

enacted	section	2458(2-A).		See	Anton,	463	A.2d	at	706.		He	points	out	that	the	
8	

statute	requires	the	Secretary	of	State	to	consider	statements	from	victims	and	

their	family	members,	which	indicates	a	punitive	purpose	similar	to	that	of	the	

criminal	law’s	use	of	victim	impact	statements.		See	17-A	M.R.S.	§	1174	(2017);	

Anton,	 463	 A.2d	 at	 708	 (explaining	 that	 “[s]ome	 courts	 have	 found	 the	

legislature’s	 intent	 to	 create	 a	 civil	 offense	 undercut	 by	 excessive	 use	 of	

terminology	 associated	 with	 the	 criminal	 law”).	 	 He	 also	 cites	 to	 testimony	

before	 the	 Legislature	 that	 emphasized	 consequences	 and	 accountability	 for	

negligent	 drivers,	 instead	 of	 public	 safety.3	 	 This	 factor	 suggests	 that	 section	

2458(2-A)	is	punitive	in	intent,	even	though	it	is	not	punitive	in	its	operation	

and	effect.			

          [¶16]	 	 As	 to	 the	 fifth	 factor,	 the	 behavior	 to	 which	 section	 2458(2-A)	

applies	 will	 not	 necessarily	 amount	 to	 a	 crime.	 	 As	 the	 circumstances	 here	


     3	 	 Richard	 is	 correct	 that	 the	 testimony	 before	 the	 Legislature,	 including	 the	 testimony	 of	 bill	

sponsors,	emphasized	penalties	and	accountability	rather	than	public	safety.		See	An	Act	to	Require	a	
Hearing	 When	 a	 Fatality	 Results	 from	 a	 Motor	 Vehicle	 Accident:	 Hearing	 on	 L.D.	 1948	 Before	 the	 J.	
Standing	 Comm.	 on	 Transp.,	 123rd	 Legis.	 (2008)	 (testimony	 of	 Walter	 Wheeler,	 bill	 sponsor	 and	
District	151	representative)	(“I	sponsored	this	bill	because	I	believe	there	should	be	more	serious	
penalties	 for	 reckless	 or	 negligent	 drivers.	.	.	.		[T]here	 should	 be	 serious	 consequences	 for	 their	
actions.		I	want	to	be	certain	that	if	someone	dies	in	a	motor	vehicle	accident,	there	is	a	thorough	
review	of	the	circumstances	surrounding	the	crash	and	that	irresponsible	drivers	receive	adequate	
penalties	for	their	actions.”),	(testimony	of	Peter	B.	Bowman,	bill	co-sponsor	and	District	1	senator)	
(arguing	that	without	a	hearing	“there	[are]	no	‘lessons	learned,’	and	the	driver	of	the	.	.	.	vehicle	[will]	
never	[be]	held	accountable	for	her	reckless	behavior	which	result[s]	in	the	tragic	loss	of	life.		Society	
[is]	the	loser	and	our	constituents	[will	not]	achieve	closure	regarding	their	tragic	loss.”),	(testimony	
of	Ronald	Lawrence,	father	of	a	victim	of	a	traffic	accident)	(“A	vi[c]tim[’]s	family	and	friends	should	
not	have	to	go	through	what	my	family	has	had	to	go	through	after	losing	a	loved	one	just	because	
the	State	of	Maine	is	lax	in	having	adequate	consequences	and	being	serious	against	people	who	are	
guilty	of	negligence.”).	
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demonstrate,	 a	driver’s	negligence	may	 result	in	 deaths	and	 yet	not	result	in	

any	criminal	prosecution.	

      [¶17]		Next,	we	consider	the	sixth	factor—whether	section	2458(2-A)	has	

a	purpose,	other	than	punishment,	that	can	rationally	be	associated	with	it.		As	

set	 forth	 above,	 section	 2458(2-A)’s	 purpose	 is	 to	 promote	 public	 safety	 by	

providing	the	public	with	safe	roadways.		See	Savard,	659	A.2d	at	1268.			

      [¶18]	 	 Finally,	 the	 seventh	 factor	 addresses	 whether	 the	 three-year	

driver’s	 license	 suspension	 is	 excessive,	 or	 reasonable,	 in	 relation	 to	 the	

nonpunitive	objective	of	promoting	public	safety.		See	State	v.	Letalien,	2009	ME	

130,	¶	51,	985	A.2d	4.		As	we	held	in	Anton,	“[a]	proceeding	to	revoke	a	driver’s	

license	is	a	reasonable	regulatory	measure	to	protect	public	safety.”		463	A.2d	

at	707.		When,	as	here,	a	driver’s	negligent	operation	of	a	motor	vehicle	causes	

a	death,	the	suspension	of	that	driver’s	license	for	three	years	is	a	reasonable	

regulatory	measure	and	is	in	no	way	excessive.	

      [¶19]		Because	the	factors	articulated	in	Anton	weigh	heavily	in	favor	of	

the	 conclusion	 that	 section	 2458(2-A)	 is	 not	 so	 punitive	 as	 to	 be	 a	 criminal	

prosecution,	 we	 decline	 to	 impose	 a	 burden	 higher	 than	 preponderance	 of	

evidence	and	affirm	the	court’s	determination	of	that	issue.	
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B.	    Sufficiency	of	the	Evidence	to	Support	the	Suspension	

       [¶20]		Finally,	Richard	contends	that	the	Hearing	Examiner’s	finding	that	

his	operation	at	the	time	of	the	fatal	accident	was	negligent	was	not	supported	

by	substantial	evidence	in	the	record.			

       [¶21]	 	 “When	 the	 Superior	 Court	 acts	 in	 an	 intermediate	 appellate	

capacity	 pursuant	 to	 M.R.	 Civ.	 P.	 80C,	 we	 review	 the	 administrative	 agency’s	

decision	 directly	 for	 errors	 of	 law,	 abuse	 of	 discretion,	 or	 findings	 not	

supported	 by	 substantial	 evidence	 in	 the	 record.”	 	 Melevsky	 v.	 Sec’y	 of	 State,	

2018	 ME	 46,	 ¶	 6,	 182	 A.3d	 731	 (quotation	 marks	 omitted).	 	 “Substantial	

evidence	 exists	 when	 a	 reasonable	 mind	 would	 rely	 on	 that	 evidence	 as	

sufficient	 support	 for	 a	 conclusion.”	 	 Osprey	 Family	 Tr.	 v.	 Town	 of	 Owls	 Head,	

2016	ME	89,	¶	9,	141	A.3d	1114	(quotation	marks	omitted).		“We	examine	the	

entire	 record	 to	 determine	 whether	 the	 [Hearing	 Examiner]	 could	 fairly	 and	

reasonably	find	the	facts	as	[she]	did.”		Rangeley	Crossroads	Coal.	v.	Land	Use	

Regulation	 Comm’n,	 2008	 ME	 115,	 ¶	 10,	 955	 A.2d	 223.	 	 Richard	 bears	 the	

burden	 of	 persuasion	 on	 appeal	 because	 he	 seeks	 to	 vacate	 the	 Secretary	 of	

State’s	decision.		See	Osprey	Family	Tr.,	2016	ME	89,	¶	9,	141	A.3d	1114.	

       [¶22]		Section	2458(2-A)	mandates	that	the	Secretary	of	State	“suspend	

for	a	period	of	at	least	3	years	a	person’s	license	if	the	Secretary	of	State,	based	
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on	 the	 Secretary	 of	 State’s	 records	 or	 other	 sufficient	 evidence,	 finds	 that	

person	to	have	negligently	operated	a	motor	vehicle	in	a	manner	so	as	to	cause	

the	death	of	another	person.”	

	     [¶23]		We	have	previously	held	that	“[i]n	any	ordinary	case,	one	cannot	

go	to	sleep	while	driving	 an	automobile	without	having	relaxed	the	vigilance	

which	the	law	requires,	without	having	been	negligent;	it	lies	within	his	own	

control	to	keep	awake	or	cease	from	driving;	and	so	the	mere	fact	of	his	going	

to	sleep	while	driving	is	a	proper	basis	for	an	inference	of	negligence	sufficient	

to	make	out	a	prima	facie	case,	and	sufficient	for	a	recovery,	if	no	circumstances	

tending	 to	 excuse	 or	 justify	 his	 conduct	 are	 proven.”	 	 Gendron	 v.	 Gendron,	

144	Me.	347,	350,	69	A.2d	668	(1949)	(quotation	marks	omitted).		The	Hearing	

Examiner’s	 finding	 that	 Richard	 fell	 asleep	 while	 driving	 his	 vehicle	 is	

supported	 by	 competent	 evidence.	 	 On	 multiple	 occasions	 after	 the	 accident,	

Richard	reported	that	he	must	have	“dozed	off.”		The	only	circumstance	tending	

to	 excuse	 Richard’s	 conduct	 is	 his	 alleged	 cardiac	 event,	 but	 the	 Hearing	

Examiner	reasonably	concluded	that	the	evidence	in	the	record	was	insufficient	

to	support	that	theory.		Further,	as	the	Hearing	Examiner	found	with	support	

in	the	record,	regardless	of	the	reason	for	the	fatigue,	Richard	was	aware	that	

he	was	tired	but	chose	to	keep	driving,	hoping	to	make	it	to	a	truck	stop.		The	
12	

Hearing	 Examiner	 did	 not	 err	 by	 concluding	 that	 falling	 asleep	 while	 driving	

and	causing	the	deaths	of	two	people	constitutes	negligence.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	      	       	    	     	
	
Jeremy	W.	Dean,	Esq.	(orally),	Portland,	for	appellant	Joseph	L.	Richard	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Oxford	County	Superior	Court	docket	number	AP-2016-10	
FOR	CLERK	REFERENCE	ONLY	
