MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2018	ME	46	
Docket:	      Yor-17-322	
Submitted	
  On	Briefs:	 February	26,	2018	
Decided:	     April	3,	2018	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               WALTER	MELEVSKY	III	
                                        	
                                       v.	
                                        	
                               SECRETARY	OF	STATE	
	
	
MEAD,	J.	

      [¶1]	 	 The	 Secretary	 of	 State	 appeals	 from	 a	 judgment	 of	 the	 Superior	

Court	(York	County,	Douglas,	J.)	vacating	the	decision	of	the	Secretary	of	State’s	

Hearing	 Examiner	 that	 denied	 Walter	 Melevsky	 III’s	 petition	 to	 rescind	 the	

administrative	 suspension	 of	 his	 driver’s	 license.	 	 See	 5	 M.R.S.	

§	11008(1)	(2017);	29-A	M.R.S.	        §	2521(1),	    (3),	   (5)-(6),	   (8)	   (2017);	

M.R.	Civ.	P.	80C.		The	Secretary	challenges	the	court’s	determination	that	as	a	

matter	of	law	Melevsky	did	not	“fail[	]	to	submit	to	and	complete	a	test”	of	his	

blood-alcohol	 concentration.	 	 See	29-A	M.R.S.	 §	2521(5),	 (8)(C).	 	 Because	 the	

evidence	presented	to	the	Hearing	Examiner	supported	the	determination	that	

Melevsky	 did	 fail	 to	 submit	 to	 a	 test	 of	 his	 blood-alcohol	 concentration,	 we	
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vacate	the	judgment	of	the	Superior	Court	and	remand	for	the	entry	of	an	order	

affirming	the	decision	of	the	Hearing	Examiner.	

                                   I.		BACKGROUND	

	     [¶2]		On	November	12,	2016,	at	around	7:05	p.m.,	Melevsky	was	driving	

northbound	on	Route	35	in	Lyman	when	a	Maine	State	Police	trooper	pulled	

over	Melevsky’s	vehicle	for	having	defective	license	plate	lights.		The	trooper	

“detected	a	strong	odor	of	intoxicating	beverages	coming	from	the	vehicle”	and	

saw	that	both	Melevsky	and	his	passenger	“had	bloodshot	and	glossy	eyes,	and	

slow,	slurred	speech.”		Melevsky	performed	poorly	on	roadside	field	sobriety	

tests,	 and	 the	 trooper	 arrested	 Melevsky	 and	 transported	 him	 to	 the	

York	County	 Jail.	 	 As	 a	 result	 of	 interactions	 with	 Melevsky	 at	 the	 jail,	 the	

trooper	concluded	that	Melevsky	had	refused	a	test	of	his	blood-alcohol	level;	

the	 trooper	 reported	 Melevsky’s	 refusal	 to	 the	 Secretary	 of	 State.	 	 After	

receiving	 notice	 that	 his	 license	 was	 being	 suspended	 for	 275	 days	 due	 to	 a	

refusal	 to	 take	 a	 test	 of	 his	 blood-alcohol	 level	 upon	 his	 arrest,	 Melevsky	

petitioned	for	a	hearing	before	the	Secretary	of	State	to	review	the	suspension.		

See	 29-A	 M.R.S.	 §§	 2483,	 2521(5),	(8)	(2017).	 	 The	 evidence	 at	 the	

March	1,	2017,	hearing	consisted	only	of	the	trooper’s	testimony	and	his	police	

report,	which	was	entered	as	Exhibit	1.	
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       [¶3]	 	 The	 evidence	 presented	 to	 the	 Hearing	 Examiner	 indicated	 that	

while	 the	 trooper	 was	 processing	 Melevsky	 at	 the	 York	 County	 Jail and

explaining	 how	 the	 Intoxilyzer	 breath	 test	 worked,	 Melevsky	 unequivocally	

stated	that	he	was	not	going	to	take	the	breath	test.		After	being	read	“the	refusal	

form	(green	form),”	and	only	then,	Melevsky	indicated	a	willingness	to	submit	

to	a	blood	test,	but	not	a	breath	test.	

       [¶4]		The	trooper	was	willing	to	accommodate	Melevsky’s	request	for	a	

blood	 test	 despite	 the	 refusal	 of	 the	 breath	 test.	 	 He	 verified	 that	 the	 local	

hospital	had	a	blood	test	kit	available	as	well	as	someone	capable	of	drawing	

the	sample.	 	Before	departing	for	the	hospital,	the	trooper	sought	to	confirm	

that	Melevsky	was	actually	going	to	submit	to	the	blood	test	but	Melevsky	was	

equivocal,	responding	with	words	to	the	effect	of	“I	don’t	know.		I	might,	might	

not.	 	 Might	 change	 my	 mind.	 	 I	 might	 refuse.”	 	 At	 this	 point,	 the	 trooper	

determined	that	Melevsky	“was	just	delaying	and	messing	with	[him].”		He	told	

Melevsky	that	he	was	going	to	treat	 Melevsky’s	actions	as	 a	refusal	and	read	

Melevsky	 the	 standard	 implied	 consent	 explaining	 the	 consequences	 of	

refusing	 a	 test.	 	 He	 asked	 Melevsky	 to	 sign	 it	 to	 acknowledge	 the	 refusal.		

Melevsky	 offered	 no	 suggestion	 that	 he	 was	 withdrawing	 his	 earlier	

unequivocal	refusal	to	take	the	breath	test	or	his	equivocation	on	whether	he	
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would	actually	undergo	the	blood	draw	after	being	transported	to	the	hospital.		

He	declined	to	sign	the	implied	consent	form.	

      [¶5]	 	 The	 Hearing	 Examiner	 denied	 Melevsky’s	 petition	 to	 rescind	 the	

suspension,	 concluding	 that	 Melevsky	 had	 refused	 to	 take	 a	 test	 of	 his	

blood-alcohol	 level.	 	 Melevsky	 filed	 a	 timely	 petition	 for	 review	 in	 the	

Superior	Court.		5	M.R.S.	§§	11001-11008	(2017);	29-A	M.R.S.	§	2485(5)	(2017).		

After	the	Superior	Court	concluded	that	the	Secretary	of	State’s	decision	was	

erroneous	as	a	matter	of	law,	vacated	that	decision,	and	ordered	the	Secretary	

to	 reinstate	 Melevsky’s	 driver’s	 license,	 the	 Secretary	 timely	 appealed	 to	 us.		

5	M.R.S.	§	11008(1);	M.R.	Civ.	P.	80C.	

                                   II.		DISCUSSION	

      [¶6]		“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.”	 	 Somerset	 County.	 v.	 Dep’t	 of	 Corr.,	

2016	ME	33,	 ¶	 14,	 133	 A.3d	 1006	 (alteration	 omitted)	 (quotation	 marks	

omitted);	see	also	Abrahamson	v.	Sec’y	of	State,	584	A.2d	668,	670	(Me.	1991).	

      [¶7]	 	 Title	 29-A	 M.R.S.	 §	 2521(5)	 mandates	 that	 the	 Secretary	 of	 State	

“shall	immediately	suspend	the	license	of	a	person	who	fails	to	submit	to	and	
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complete	 a	 test.”	 	 However,	 pursuant	 to	 29-A	 M.R.S.	 §	 2521(3),	 before	 the	

consequences	 of	 refusal	 may	 attach,	 law	 enforcement	 must	 inform	 a	 person	

arrested	for	operating	under	the	influence	that	the	refusal	of	a	test	will	

      A. Result	in	suspension	of	that	person’s	driver’s	license	for	a	period	
         up	to	6	years;	
      B. Be	 admissible	 in	 evidence	 at	 a	 trial	 for	 operating	 under	 the	
         influence	of	intoxicants;	and	
      C. Be	considered	an	aggravating	factor	at	sentencing	if	the	person	
         is	convicted	of	operating	under	the	influence	of	intoxicants	that,	
         in	 addition	 to	 other	 penalties,	 will	 subject	 the	 person	 to	 a	
         mandatory	minimum	period	of	incarceration.	
         	
      [¶8]		Pursuant	to	29-A	M.R.S.	§§	2483-2484,	2521(8)	(2017),	upon	the	

Secretary	of	State’s	suspension	of	Melevsky’s	license,	he	was	entitled	to	petition	

for	 a	 hearing	 at	 which	 the	 Secretary	 was	 required	 to	 determine,	 by	 a	

preponderance	of	the	evidence,	whether		

      A. There	 was	 probable	 cause	 to	 believe	 the	 person	 operated	 a	
         motor	vehicle	while	under	the	influence	of	intoxicants;	
      B. The	 person	 was	 informed	 of	 the	 consequences	 of	 failing	 to	
         submit	to	a	test;	and		
      C. The	person	failed	to	submit	to	a	test.	

Melevsky	does	not	contest	the	first	two	of	those	issues.		Melevsky	asserts	that	

he	did	not	refuse	to	submit,	as	that	phrase	is	used	in	subsection	C,	because	the	

trooper	never	actually	gave	him	the	opportunity	to	submit	to	a	chemical	test.	

      [¶9]		The	implied	consent	statute	as	a	whole	seeks	to	provide	a	suspect	

with	an	incentive	to	cooperate	with	blood-alcohol	testing;	indeed,	this	goal	led,	
6	

in	 part,	 to	 Maine’s	 and	 other	 states’	 enactment	 of	 the	 “[s]o-called	 implied	

consent	laws.”		Birchfield	v.	North	Dakota,	579	U.S.	---,	136	S.	Ct.	2160,	2168-69	

(2016);1	 see	 State	 v.	 Chase,	 2001	 ME	 168,	 ¶	7	 n.3,	 785	 A.2d	 702	 (“[Implied	

consent]	warnings	are	necessitated	in	part	because	the	method	of	testing	most	

often	 used	 throughout	 the	 state,	 usually	 a	 form	 of	 breath	 test,	 cannot	 be	

completed	without	the	cooperation	of	the	driver.”).		As	we	have	held,	however,	

Maine’s	 statute,	 although	 still	 entitled	 “Implied	 consent	 to	 chemical	 tests,”	

actually	provides	that	the	person	“shall”	submit	to	a	test	when	there	is	probable	

cause	to	believe	that	he	has	operated	under	the	influence	of	intoxicants,	and	the	

statute	no	longer	frames	the	person’s	duty	in	terms	of	consent.		State	v.	Boyd,	

2017	 ME	 36,	 ¶	 13,	 156	 A.3d	 748.	 	 Thus,	 upon	 a	 law	 enforcement	 officer’s	

determination	that	there	is	probable	cause	to	believe	that	a	driver	is	operating	

a	 vehicle	 under	 the	 influence,	 that	 driver	 has	 a	 duty	 to	 submit	 to	 testing.		

29-A	M.R.S.	§	2521(1);	Chase,	2001	ME	168,	¶	6,	785	A.2d	702.	

	        [¶10]		With	respect	to	the	manner	of	testing,	“[a]	law	enforcement	officer	

shall	administer	a	breath	test	unless,	in	that	officer’s	determination,	a	breath	



     1		Because	the	challenge	here	is	to	a	license	suspension	following	a	breath	test	refusal,	in	this	case	

we	 need	 not	 consider	 the	 pronouncement	 in	 Birchfield	 v.	 North	 Dakota	 that	 “motorists	 cannot	 be	
deemed	 to	 have	 consented	 to	 submit	 to	 a	 blood	 test	 on	 pain	 of	 committing	 a	 criminal	 offense.”		
579	U.S.	---,	136	S.	Ct.	2160,	2186	(2016).	
	
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test	 is	 unreasonable.	 .	 .	 .	 [In	 that	 case,]	 another	 chemical	 test	 must	 be	

administered.”		29-A	M.R.S.	§	2521(2).		Although	the	record	does	not	address	

whether	the	trooper	had	specifically	determined	that	a	breath	test	would	have	

been	unreasonable	when	he	made	arrangements	for	a	blood	test,	it	can	fairly	

be	inferred	from	the	record	that	he	did	not.		The	blood	test	was	made	available	

to	 Melevsky	 only	 after	 he	 expressly	 refused	 the	 breath	 test	 and	 requested	 a	

blood	test.2		Melevsky’s	equivocation	on	whether	he	would	actually	complete	

the	 blood	 test	 after	 being	 transported	 to	 the	 hospital	 may,	 or	 may	 not,	 have	

constituted	a	 refusal,3	but	his	outright	refusal	to	take	a	breath	test	remained	

unchanged	even	after	the	trooper	read	the	implied	consent	form.	

	        [¶11]		Melevsky’s	citation	to	State	v.	Adams,	457	A.2d	416	(Me.	1983)	is	

misplaced	and	to	no	avail.		Adams	involved	a	driver	who	was	intoxicated	and	


    2		Title	29-A	M.R.S.	§	2521	(2017),	as	currently	written,	does	not	empower	a	person	suspected	of	

operating	under	the	influence	to	pick	and	choose	that	person’s	preferred	method	of	testing,	nor	does	
it	require	a	person	to	affirmatively	and	actually	refuse	both	of	the	available	tests	before	being	deemed	
to	have	failed	to	submit	to	a	test.		See	29-A	M.R.S.	§	2521(5);	State	v.	Butler,	667	A.2d	108,	108-110	
(Me.	1995)	(“The	Legislature	.	.	.	has	since	removed	that	choice	[between	a	breath	and	a	blood	test].”);	
Ward	 v.	 Sec’y	 of	 State,	 No.	CV-96-552,	 1997	 Me.	 Super.	 LEXIS	 159,	 at	 *2-4	 (May	15,	1997)	
(An	“individual	may	not	refuse	a	breath	test	and	demand	a	blood	test.”).	
     	
    3		Several	state	appellate	courts	have	held	that	equivocation	in	the	face	of	an	opportunity	to	submit	

to	 a	 test	 may	 constitute	 a	 refusal.	 	 See	 Fallis	 v.	 Dep’t	 of	 Motor	 Vehicles,	 70	 Cal.	 Rptr.	 595,	 602	
(Cal.	Ct.	App.	1968)	(citing	Clancy	v.	Kelly,	180	N.Y.S.2d	923	(N.Y.	App.	Div.	1958))	(“[A]ny	equivocal	
refusal	may	be	interpreted	as	a	refusal.”);	State	v.	Schmidt,	19	A.3d	457,	462-68	(N.J.	2011)	(holding	
that	a	refusal	resulted	despite	ambiguity	of	defendant’s	insufficient	supply	of	volume	of	breath	for	
the	test	after	having	unequivocally	consented	to	the	test	and	the	officer’s	repeated	warning	of	the	
consequences	of	refusal);	but	see	State	v.	Pineau,	491	A.2d	1165,	1167-69	(Me.	1985)	(holding	that	
there	was	no	refusal	when	the	hospital	conditioned	administration	of	the	blood	test	on	the	suspect’s	
waiver	of	any	hospital	liability).	
8	

injured	and	incapable	of	understanding	the	reading	of	an	implied	consent	form.		

Id.	at	417.		We	vacated	an	order	of	suppression,	concluding	that	the	test	result	

from	the	blood	draw	taken	without	Adams’s	express	consent	was	admissible	in	

court.		Id.	at	420-22.		Specifically,	we	held	that	

      once	it	is	established	that	there	exists	probable	cause	to	believe	a	
      person	has	operated	or	attempted	to	operate	a	motor	vehicle	while	
      under	the	influence	of	intoxicating	liquor,	and	once	that	person	is	
      informed	 by	 a	 law	 enforcement	 officer	 of	 the	 tests	 available	 to	
      him	.	.	.	,	unless	that	person	affirmatively	and	actually	refuses	to	be	
      tested,	 either	 verbally	 or	 by	 conduct,	 .	.	.	 the	 test	 result[	 ]	 .	 .	 .	 is	
      admissible	in	evidence	.	.	.	.	
	
Id.	 at	 420.	 	 Here,	 nothing	 in	 the	 record	 suggests	 that	 Melevsky	 did	 not	

understand	the	consequences	of	refusing	a	test,	and	Melevsky	does	not	assert	

any	such	lack	of	knowledge.	

	     [¶12]		Melevsky’s	election	not	to	withdraw	his	earlier	unequivocal	refusal	

of	the	breath	test	even	after	being	read	the	implied	consent	form,	particularly	

in	 view	 of	 his	 "might,	 might	 not"	 attitude	 toward	 the	 blood	 test	 that	 he	

requested,	 clearly	 constituted	 a	 “fail[ure]	 to	 submit	 to	 and	 complete	 a	 test.”		

29-A	M.R.S.	§	2521(5).		The	Hearing	Examiner's	determination	that	Melevsky	

failed	to	submit	to	a	test	of	his	blood-alcohol	level	is	supported	by	substantial	

evidence.		We	vacate	the	judgment	of	the	Superior	Court	and	remand	for	entry	

of	an	order	affirming	the	decision	of	the	Hearing	Examiner.		
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         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 to	 the	 Superior	
                            Court	for	entry	of	an	order	affirming	the	decision	
                            of	the	Hearing	Examiner.	
	
	      	      	       	    	       	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.,	
Office	of	the	Attorney	General,	Augusta,	for	appellant	Secretary	of	State	
	
Patrick	 H.	 Gordon,	 Esq.,	 Fairfield	 and	 Associates,	 Lyman,	 for	 appellee	 Walter	
Melevsky	III	
	
	
York	County	Superior	Court	docket	number	AP-2017-10	
FOR	CLERK	REFERENCE	ONLY	
