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MARINO v. SECRETARY OF STATE6/13/1991
Michael J. Marino appeals from a order entered by the Superior Court (Aroostook County, Pierson, J.) denying his appeal of a decision by the Chief Hearing Examiner of the Secretary of State's Division of Motor Vehicles (Hearing Examiner) suspending his driver's license. Finding no error, we affirm.
Marino was arrested for operating a motor vehicle under the influence of alcohol. 29 M.R.S.A. § 1312-B (Supp. 1990). At the time of his arrest, Marino held a conditional driver's license as a result of a previous suspension, also for operating under the influence of alcohol. 29 M.R.S.A. § 2241-J(11) (Supp. 1990). Marino was taken to the police station where he was asked to complete a breath test. He made two attempts, but did not complete the test. At this point, a second police officer warned Marino of the consequences of his failure to complete the test, stating, " f you fail to comply with the duty to submit to and complete a test your driver's license or permit to operate, right to operate or right to apply for or obtain a license will be suspended for a minimum of six month and may be as long as three years." The officer read this warning directly from an implied consent form which he then presented to Marino for his signature. Marino indicated that he was willing to take the breath test and refused to sign the form. Marino made a third attempt, but did not complete the test. The officers examined the balloons for defects but could detect no physical reason for Marino's inability to complete the test. Later, Marino admitted that he was not trying whole-heartedly.
Marino subsequently received notice from the Secretary of State that his driver's license would be suspended for two years as a result of his failure to complete the breath test. 29 M.R.S.A. § 2241-J(1) & (2). Pursuant to the statutory mandate,
this two-year administrative suspension was imposed consecutive to a one-year court-imposed license suspension Marino received as part of his sentence in the criminal case arising out of the same incident. 29 M.R.S.A. § 2241-J(6)(B).
Marino requested an administrative hearing pursuant to 29 M.R.S.A. § 2241-J(7) and (8). The only issue contested before the Hearing Examiner was whether Marino was adequately informed of the consequences of his failure to complete the test. 29 M.R.S.A. § 1312(1) (Supp. 1990). The Hearing Examiner found that Marino had been adequately informed that his license could be suspended for up to three years because of his failure to complete the test. Marino's appeal to this court followed his unsuccessful appeal to the Superior Court. 29 M.R.S.A. § 2241-J(8)(E); M.R.Civ.P. 80C.
Relying on State v. Granville, 336 A.2d 861 (Me. 1975), Marino contends that the officers were obligated to inform him that the two-year administrative suspension for failure to complete the breath test would be imposed consecutive to any court-ordered suspension stemming from his conviction for operating under the influence. We disagree. The warning given to Marino was fully consistent with the applicable statutory provisions, informed him, in unmistakable terms, that his license could be suspended for up to three years if he failed to complete the test and fully accorded with Granville. Marino's license was administratively suspended for two years and by court order for one year, for a total of three years. Thus, the Hearing Examiner correctly concluded that Marino was properly warned of the consequences of his failure to complete the breath test.
The entry is:
Judgment affirmed.
All concurring.
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