Gina Turcotte v Secretary of State - Ken-13-514 - Appellant's Appeal Brief

January 17, 2014

MAINE SUPREME JUDICIAL COURT 205 NEWBURY STREET PORTLAND, MAINE 04101-4125 RE: STATE OF MAINE v. GINA TURCOTTE KEN-13-514 This letter is attached to ask the court to accept my Appeal Brief even

though it was not filed within the time required.

Appellant is without her own transportation, living on social security

disability income and is not a licensed or practiced attorney. Most of

Appellant's preparation for this Appeal Brief was focused on researching court

rules and procedures ensuring technical precision which effectively delayed the

final production of this document.

In light of the numerous constitutional due process violations committed

by Appellee throughout this entire matter, Appellant asks the court and

Appellee to offer leniency and accept this untimely filing.

Thank you.

In Peace,

GINA TURCOTTE 41 LAMBERT AVENUE AUGUSTA, MAINE

MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT

KEN-13-514

GINA TURCOTTE

APPELLANT

v.

SECRETARY OF STATE

APPELLEE

APPEAL BRIEF FOR APPELLANT

Gina Turcotte APPELLANT

41 Lambert Avenue Augusta, Maine

i

Table of Contents

TABLE OF AUTHORITIES .............................................................................................. iii

PRELIMINARY STATEMENT ......................................................................................... 1

NOTICE OF COMPANION CASES .................................................................................. 1

STATEMENT OF FACTS .................................................................................................. 2

PROCEDURAL HISTORY ................................................................................................ 2

ISSUES PRESENTED FOR REVIEW ............................................................................... 9

1. WHETHER FAILURE TO FILE MEDICAL EVALUATION RISES TO 29-A

MRSA §2458(2)(D) INCOMPETENT TO DRIVE A MOTOR VEHICLE.

2. WHETHER SECRETARY OF STATE HAD SUFFICIENT EVIDENCE

APPELLANT WAS INCOMPETENT TO DRIVE A MOTOR VEHICLE.

3. WHETHER SECRETARY OF STATE VIOLATED DUE PROCESS BY

SUSPENDING THE LICENSE WITHOUT SUFFICIENT EVIDENCE OF

INCOMPETENCY OR CONSULTATION WITH MEDICAL ADVISORY

BOARD.

4. WHETHER OFC. DOSSANTOS NOTIFIED APPELLANT OF ALL

REQUIRED ELEMENTS OF 'ACTUAL NOTICE' ON MARCH 7, 2011.

5. WHETHER SECRETARY OF STATE ERRED WHEN IT FAILED TO

PROVIDE ADMINISTRATIVE HEARING IN MARCH AND APRIL 2013.

SUMMARY OF ARGUMENT ........................................................................................... 9

STANDARD OF REVIEW ............................................................................................... 11

ARGUMENT ..................................................................................................................... 12

ii

1. SECRETARY OF STATE COMMITTED AN ERROR OF LAW WHEN IT DETERMINED 'FAILURE TO FILE MEDICAL EVALUATION' IS THE EQUIVALENT OF 'INCOMPETENT TO DRIVE A MOTOR VEHICLE'.

2. SECRETARY OF STATE COMMITTED AN ERROR OF LAW WHEN IT

DETERMINED APPELLANT WAS INCOMPETENT TO DRIVE A MOTOR VEHICLE WITHOUT SUPPORTING EVIDENCE.

3. SECRETARY OF STATE VIOLATED DUE PROCESS BY SUSPENDING

THE LICENSE WITHOUT SUFFICIENT EVIDENCE OF INCOMPETENCY

OR CONSULTATION WITH THE MEDICAL ADVISORY BOARD.


DETERMINED OFC. DOSSANTOS NOTIFIED APPELLANT OF ALL REQUIRED ELEMENTS OF 'ACTUAL NOTICE' ON MARCH 7, 2011.


FAILED TO PROVIDE ADMINISTRATIVE HEARING IN MARCH AND

APRIL 2013.

CONCLUSION ................................................................................................................. 17

CERTIFICATE OF SERVICE .......................................................................................... 19

iii

TABLE OF AUTHORITIES

DICTIONARY

Black’s Law Dictionary, 1st Edition

CONSTITUTION United States Constitution, All Pertinent Due Process Clauses Maine Constitution, All Pertinent Due Process Clauses

CASES Aptheker v. Secretary of State, 378 US 500, Supreme Court 1964

Ashe v. Enterprise Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157

Carrier v. Secretary of State, 60 A. 3d 1241, Me Supreme Judicial Court 2012

Cobb v. Bd. of Counseling Prof'ls Licensure, 2006 ME 48, ¶ 11, 896 A.2d 271

CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258, 1261

Estate of Joyce v. Commercial Welding Co., 2012 ME 62, ¶ 12, 55 A.3d 411

Haines v. Kerner 404 US 519

Liberty Ins. Underwr. v. Estate of Faulkner, 2008 ME 149, ¶ 15, 957 A.2d 94

McGee v. Sec'y of State, 2006 ME 50, ¶ 5, 896 A.2d 933

Norris Perry v. Secretary of State, AP-00-02

STATUTES

29-A MRSA §2412-A(1-A)(A) 29-A MRSA §1258 29-A MRSA §1258(4) 29-A MRSA §1258(5)

iv

29-A MRSA §2458(2)(D) 29-A MRSA §2458(4)

5 MRSA §10003 5 MRSA §10004(3) 29-A MRSA §2482

MAINE MOTOR VEHICLE RULES 29-250 Motor Vehicle Rules Section 2 29-250 Motor Vehicle Rules Section 3

Page 1 of 24

PRELIMINARY STATEMENT

Appellant's case is heavily laden with constitutional violations by

Appellee "that broadly stifle fundamental personal liberties" Aptheker v.

Secretary of State, 378 US 500, Supreme Court 1964.

Appellant is not a licensed nor a practiced attorney and has no formal

legal education or training. Appellant has a long and diverse administrative

work history involving proper application of various laws but has a very limited

knowledge of court rules, procedures and appellate process.

Hence, Appellant asks the law court to honor United States Supreme

Court's precedent in Haines v. Kerner 404 US 519, which stipulates, "the pro se

complaint, which we hold to less stringent standards than formal pleadings

drafted by lawyers" and excuse Appellant's minor technical errors as harmless

errors having no influence on the merits or outcome of this case.

Appellant has expressly reserved and continues to expressly reserve all of

her natural and common law rights as protected and guaranteed by the federal

and Maine Constitutions, on and for the record, nunc pro tunc. Appellant also

expressly reserves her right to amend without leave of court.

NOTICE OF COMPANION CASES

There are three (3) companion cases to this instant case, not including

Violations Bureau companion cases, which are docketed under:

AUGDC-CR-2011-512

AUGDC-CR-2011-513

AUGSC-CR-2012-286

Page 2 of 24

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Appellant became transient in September 2007 after a micro-burst

tornado seriously damaged her rented home in Windsor, Maine which

consequently caused her residency to become stopgap and unstable for several

years. Appellant has since lived in a few dozen different places with some

lasting only a few days.

Consequently, Appellant was unable to keep a current mailing address

consistently on file with Appellee which prevented mail from being delivered to

Appellant which caused Appellant to unknowingly fail to fulfill a request for

medical evaluation in November 2009.

The record shows two medical notices were returned as undeliverable on

November 10 and December 29, 2009 by the United States Postal Service.

Appellee issued Appellant a violation free credit on December 31, 2009.

The record shows Appellee did not post pertinent public notices in their

attempt to contact Appellant and follow due process, nor were public notices

issued of a potential 'health or safety hazard' caused by Appellant’s alleged

'incompetence to drive a motor vehicle'.

In fact, no actual notices were served on Appellant at all.

Despite the record clearly showing Appellant had not received nor been

served with the required actual notices, Appellee ignored and violated

constitutional and procedural due process and suspended the license on

January 5, 2010 pursuant to 29-A MRSA §2458(2)(D) without holding a

preliminary hearing, without receiving any reports of adverse operation,

Page 3 of 24

without having clear and sufficient evidence of incompetency, without having

clear and sufficient evidence of a health or safety hazard, and without any

advice of the Medical Advisory Board or any other competent medical

professional.

Appellee maintained the administrative medical suspension for 397 days

beyond the statutory limitations imposed by 5 MRSA §10004(3) Action without

Hearing.

On February 10, 2011, Augusta Police Ofc. DosSantos initiated a traffic

stop without probable cause that a crime had been, was being, or was about to

be committed, which resulted in Appellant being released from the scene after

being issued a Violation Summons and Complaint for failure to obey a traffic

control device. Ofc. DosSantos did not indicate in any way that license

#1491178 was suspended or revoked. (AUGDC-CR-2011-512) (VB#2576761)

On March 7, 2011, Augusta Police Ofc. DosSantos, without probable

cause that a crime had been, was being, or was about to be committed, and

with full knowledge the license was suspended for medical reasons, initiated a

traffic stop and twice asked Appellant if her license was suspended which

Appellant twice denied; this communication served as Appellant’s first actual

notice of the medical suspension only. (AUGDC-CR-2011-513)

Ofc. DosSantos asked Appellant if she knew any reason the medical unit

would have to suspend the license. Appellant denied any knowledge insisting

the license should be active.

Page 4 of 24

Ofc. DosSantos told Appellant he had no knowledge of the basis for the

medical suspension, the statutory authority for the suspension, nor did he

inform Appellant that she had a right to request an administrative hearing.

Ofc. DosSantos did not fulfill the requirements of actual notice under 29-

A MRSA §2482 or Motor Vehicle Rules 29-250, Ch. 2, Section 2 Notice of

Opportunity for Hearing during the March 7, 2011 traffic stop.

Ofc. DosSantos issued two (2) Uniform Summons And Complaints under

29-A MRSA §2412-A(1-A)(A) for February 10 and March 7, 2011. (AUGDC-CR-

2011-512/513)

Appellant called the Medical Unit at Bureau of Motor Vehicle upon her

arrival home on March 7, 2011.

Appellant contacted her physician on March 8, 2011 fulfilling Appellee’s

request for a medical evaluation with a signed declaration by Appellant’s

physician that Appellant was not using any medication at the time of the 2010

suspension, nor currently. (Physician's Report, March 8, 2011)

In fact, Appellant ceased taking all pharmaceuticals in 2006.

Appellant never received any type of verbal or written notice prior to

March 2013 that she was entitled to an administrative hearing or the license

had been suspended pursuant to 29-A MRSA §2458(2)(D) for incompetency.

The record shows no adverse report of unsafe operation nor the advice of

the Medical Advisory Board supporting any type of suspension.

Appellee deleted the medical suspension on March 8, 2011. (Dr. Record

1491178, 4/06/12 09:45:18, Page 3)

Page 5 of 24

Appellee issued a “violation free credit” to Appellant on March 8, 2011 for

the calendar year 2010. (Dr. Record 1491178, 4/06/12 09:45:18, Page 3)

On March 8, 2011 Appellant went to the District Attorney’s office to ask

for a dismissal of AUGDC-CR-2011-512 and AUGDC-CR-2011-513, which the

District Attorney explicitly rejected.

On July 5, 2011, Appellant appeared at her bench trial for AUGDC-CR-

2011-512 and AUGDC-CR-2011-513 and submitted a certified public copy of

driving record #1491178 to the district court judge showing no suspension

existed on February 10 or March 7, 2011, which the court rejected.

Appellant entered a plea of nolo contendre vis compulsiva on July 5, 2011

to AUGDC-CR-2011-513.

AUGDC-CR-2011-512 was dismissed.

Appellant repeatedly expressed to the court that she had not received

actual knowledge or notice of any suspension until March 7, 2011 and that all

charges must be dismissed for Appellee’s failure to comply with actual notice

requirements under 29-A MRSA §2412-A(1-A).

Appellant was not represented by nor did she waive her right to counsel

in criminal prosecutions of AUGDC-CR-2011-512 and 513.

Appellant did not have actual notice of the specific statutory authority

of the medical suspension until March 2013 thereby being unaware of her

right to request an administrative hearing to challenge the suspension nunc

pro tunc.

Page 6 of 24

In March 2013, Appellant discovered the statutory authority of the

medical suspension while reviewing evidence for AUG-CR-2012-286.

On March 18, 2013, Appellant sent her first request for administrative

hearing to Appellee.

Assistant Director Susan Cole rejected Appellant's request on March

20, 2013 stating Appellant’s “current suspensions” did not allow for an

administrative hearing.

On March 28, 2013, Appellant sent her second demand for an

administrative hearing claiming the medical suspension was commenced

improperly, without sufficient evidence to support the suspension, without

required notices and in violation of due process, which was sent directly to

Robert O’Connell, Director of Legal Affairs, Adjudications and Hearings.

On April 2, 2013, Mr. O’Connell denied Appellant’s demand for an

administrative hearing specifying, “Your request for an administrative hearing

on a license suspension of which you became knowledgeable two years ago

and that was terminated two years past is denied as untimely.”

On April 8, 2013, Appellant sent a third demand for an administrative

hearing and notice of violation of procedural due process to Appellee again

demanding an administrative hearing and the opportunity to review the

evidence which supported Appellee’s decision to suspend the license without

notice or opportunity for preliminary hearing.

On April 10, 2013, Mr. O’Connell again denied Appellant’s demand for

administrative hearing specifying, “I am in receipt of your correspondence of

Page 7 of 24

April 8, 2013 in response to my letter of April 2, 2013 to you denying your

request for an administrative hearing. As I advised you in that letter, my

decision represents final agency action in this matter. You may seek judicial

review of this final agency action pursuant to the provisions of 5 M.R. S.

§11001-11008.”

At no time has Appellee disputed or contested any facts in the record.

On April 22, 2013 Appellant filed a Rule 80C Petition and Application

and Affidavit to Proceed without Payment of Fees which was ordered on April

25, 2013 by Judge Murphy.

On May 24, 2013 Appellant filed an Affidavit and Request for Default

Judgment for Appellee's failure to file the Certified Record on time.

On May 28, 2013 Appellee filed the Certified Record with the court.

On May 29, 2013 a Notice and Briefing Schedule was mailed to both

parties.

On May 31, 2013, Appellee filed Respondent's Motion to Enlarge Time

to File Record Nunc Pro Tunc.

On June 27, 2013, J. Nivison ordered Appellee's Motion to Enlarge

Time to File Record Nunc Pro Tunc.

On July 6, 2013, Appellant filed a Motion to Enlarge Time to File Brief.

On July 12, 2013 J. Murphy ordered Appellant's Motion to Enlarge

Time to File Brief setting the deadline to file the brief for July 15, 2013.

On July 15, 2013, Appellant filed the Rule 80C Brief with the court.

Page 8 of 24

On July 31, 2013, Appellee filed Brief of Respondent with the court

accompanied by a letter stating in the event the Petitioner requests oral

argument, Respondent waives its right to be present for the argument.

On August 14, 2013, Appellant filed Petitioner's Reply Brief.

On September 18, 2013, Appellant filed a letter with superior court

requesting that oral arguments be scheduled.

On September 21, 2013, superior court scheduled oral arguments for

October 9, 2013 at 11:00am.

On October 9, 2013, oral argument was held with J. Murphy presiding,

Appellant was present and prepared but Appellee was absent as noted.

J. Murphy took Appellant's argument under advisement. Tape 1767,

Index 6245-7380.

On October 24, 2013, J. Murphy affirmed Appellee's decision of April 2,

2013 indicating, "actual notice was given to Turcotte by a law enforcement

officer, who during a traffic stop, personally informed Turcotte that her driver's

license had been suspended... Turcotte's request for an administrative hearing

to challenge the January 5, 2010 suspension was untimely...."

On November 1, 2013, Appellant filed a Notice of Appeal and

Application and Affidavit to Proceed without Payment of Fees which was

ordered on November 6, 2013 by J. Murphy.

Appellant's appeal was docketed by the law court on November 15,

2013.

Page 9 of 24

ISSUES PRESENTED FOR REVIEW

1. WHETHER FAILURE TO FILE MEDICAL EVALUATION RISES TO 29-A MRSA §2458(2)(D) INCOMPETENT TO DRIVE A MOTOR VEHICLE.

2. WHETHER SECRETARY OF STATE HAD SUFFICIENT EVIDENCE

APPELLANT WAS INCOMPETENT TO DRIVE A MOTOR VEHICLE. 3. WHETHER SECRETARY OF STATE VIOLATED DUE PROCESS BY

SUSPENDING THE LICENSE WITHOUT SUFFICIENT EVIDENCE OF INCOMPETENCY OR CONSULTATION WITH MEDICAL ADVISORY BOARD.

4. WHETHER OFC. DOSSANTOS NOTIFIED APPELLANT OF ALL


5. WHETHER SECRETARY OF STATE ERRED WHEN IT FAILED TO

PROVIDE ADMINISTRATIVE HEARING IN MARCH AND APRIL 2013.

SUMMARY OF ARGUMENT

Suspending any license without providing required notices, hearings and

following procedural due process is a violation of the Maine Constitution.

Appellee improperly determined that 'failure to file a medical evaluation'

was equivalent to 'incompetent to drive a motor vehicle' and then abusively and

capriciously suspended license #1491178 under 29-A MRSA §2458(2)(D) on

January 5, 2010 because Appellant did not receive, was not aware of and did

not comply with a request for medical evaluation in November and December

2009. Both notices were returned to Appellee by the USPS effectively nullifying

any notice Appellee attempted to serve. There is no evidence Appellee posted

public notices as required by 5 MRSA §10003.

The record shows no evidence of adverse or unsafe operation, no

recommendation by the Medical Advisory Board in support of indefinite

Page 10 of 24

suspension for incompetence, no evidence whatsoever of incompetence and no

proof that all elements of actual notice of suspension were provided to

Appellant prior to March 2013.

Appellee improperly denied Appellant's request for administrative hearing

as untimely because Appellee incorrectly claims that actual notice was given to

Appellant by Ofc. DosSantos on March 7, 2011 during a traffic stop.

Appellee's erroneous claim that Ofc. DosSantos provided Appellant with

all required elements of 'actual notice' on March 7, 2011 is unsubstantiated

and wholly false.

The Maine Legislature has established clear rules indicating form,

content and delivery of suspension notices which mandate strict compliance

with all elements of actual notice and which must be supported by evidentiary

proof of the alleged actual notice.

"The statutory authority for suspension of a driver's license by the

Secretary of State in this case is set forth in section 2458(2)(D) which authorizes

the suspension if the licensed driver 'is incompetent to drive a motor vehicle.'

Although this is a decision of the Secretary of State or his designee, the Secretary

does have available the assistance of his Medical Advisory Board which may, at

the Secretary's request, interview drivers whose competency is in question. 29-A

MRSA §1258(4)." Norris Perry v. Secretary of State, AP-00-02

However, 5 MRSA §10003. Right To Hearing stipulates, "an agency may

not amend or modify any license unless it has afforded the licensee an

opportunity for hearing in conformity with subchapter IV, nor may it refuse to

Page 11 of 24

renew any license unless it has afforded the licensee either an opportunity for an

agency hearing in conformity with subchapter IV or an opportunity for a hearing

in the District Court. In any such proceeding determined by the agency to involve

a substantial public interest, an opportunity for public comment and participation

must also be given by public notice in conformity with subchapter IV.

When Appellee suspends a license pursuant to 29-A MRSA §2458(2)(D)

without providing a hearing or making evidentiary findings, Appellee must

adhere to 5 MRSA §10004(3) Action Without Hearing, "Health or safety hazard.

The health or physical safety of a person or the continued well-being of a

significant natural resource is in immediate jeopardy at the time of the agency's

action, and acting in accordance with subchapter IV or VI would fail to

adequately respond to a known risk, provided that the revocation, suspension or

refusal to renew shall not continue for more than 30 days."

Clearly and convincingly, the record does not contain "competent and

substantial evidence which supports the results reached by the agency." CWCO,

Inc. v. Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258, 1261. "The

remaining issue is whether there were findings not supported by the evidence.

Again, the issue is not whether the court would have the same decision based

upon the evidence, but rather whether there was any evidence of record to

support the agency's findings." Norris Perry v. Secretary of State, AP-00-02

STANDARD OF REVIEW

"Because the Superior Court acted as an intermediate appellate court, we

directly review the Secretary of State's decision." McGee v. Sec'y of State, 2006

Page 12 of 24

ME 50, ¶ 5, 896 A.2d 933. We review issues of statutory and constitutional

interpretation de novo. Id. We first look to the plain meaning of the statute,

interpreting its language "to avoid absurd, illogical or inconsistent results,"

Estate of Joyce v. Commercial Welding Co., 2012 ME 62, ¶ 12, 55 A.3d 411

(quotation marks omitted), and attempting to give all of its words meaning,

Cobb v. Bd. of Counseling Prof'ls Licensure, 2006 ME 48, ¶ 11, 896 A.2d 271.

When a statute is unambiguous, we interpret the statute directly, without

applying the rule of statutory construction that "prefers interpretations ... that

do not raise constitutional problems," McGee, 2006 ME 50, ¶ 18, 896 A.2d 933,

and without examining legislative history, Ashe v. Enterprise Rent-A-Car, 2003

ME 147, ¶ 7, 838 A.2d 1157, or the agency's interpretation, Cobb, 2006 ME 48,

¶ 13, 896 A.2d 271. "We look to legislative history and other extraneous aids in

interpretation of a statute only when we have determined that the statute is

ambiguous." Liberty Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149,

¶ 15, 957 A.2d 94. "A statute is ambiguous if it is reasonably susceptible to

different interpretations." Estate of Joyce, 2012 ME 62, ¶ 12, 55 A.3d 411."

Carrier v. Secretary of State, 60 A. 3d 1241, Me Supreme Judicial Court 2012.

ARGUMENT


DETERMINED 'FAILURE TO FILE MEDICAL EVALUATION' IS THE

EQUIVALENT OF 'INCOMPETENT TO DRIVE A MOTOR VEHICLE'.

Page 13 of 24

Appellant has been unable to locate any case law on point but Black’s

Law Dictionary, 1st Edition, defines “incompetency” as “lack of ability, legal

qualification, or fitness to discharge the required duty.”

The record does not show any evidence of adverse or dangerous

operation, lack of ability, lack of legal qualification, or lack of fitness by

Appellant to support any claim of incompetency. Additionally, the record shows

Appellant was issued three consecutive years violation free credits for 2008,

2009 and 2010 indicating Appellant had committed no violations and was able,

legally qualified and fit to receive those violation free credits.

Appellant did not receive actual notice of the request for medical

evaluation nor did Appellee post required public notices thereby preventing

Appellant from complying with its terms; however, even if Appellant had actual

notice but still had not complied with the medical evaluation request, there is

no evidence in the record to substantiate a license suspension for

"incompetency to drive a motor vehicle".


DETERMINED APPELLANT WAS INCOMPETENT TO DRIVE A MOTOR

VEHICLE WITHOUT SUPPORTING EVIDENCE.

Nowhere in the record does Appellee claim to exercise any power under

29-A MRSA §1258(5) to suspend the license indefinitely for Appellant's failure

to submit to a medical evaluation. Instead, Appellee claimed authority under

29-A MRSA §2458(2)(D) despite lack of any "showing by the Secretary of State's

records or other sufficient evidence" that Appellant was "incompetent to drive a

Page 14 of 24

motor vehicle". Appellee claims no other authoritative statutes in the December

17, 2009 suspension letter to support the January 5, 2010 suspension.

Upon Appellee deciding to suspend the license for incompetence under

29-A MRSA §2458(2)(D) simply because Appellant failed to comply with a

medical evaluation request, Appellee knowingly and willfully failed to consult

the Medical Advisory Board under 29-A MRSA §1258 to determine if

Appellant's continued operation created any potential hazard to the public.

Appellee suspended the license under the statutory authority of 29-A

MRSA §2458(2)(D) citing incompetence; therefore, it is reasonable that Appellee

was also invoking 5 MRSA §10004(3) Action without Hearing because of the

alleged potential danger allegedly caused by Appellant’s continued operation.

If the law court finds that Appellant's failure to receive or comply with

the request for a medical evaluation rises to the level of incompetence to drive a

motor vehicle, the law court must specifically define the phrase 'incompetence

to drive a motor vehicle' and explicitly indentify the evidence in the record

which supports the determination of 'incompetence to drive a motor vehicle'.

3. SECRETARY OF STATE VIOLATED DUE PROCESS BY SUSPENDING

THE LICENSE WITHOUT SUFFICIENT EVIDENCE OF INCOMPETENCY

OR CONSULTATION WITH THE MEDICAL ADVISORY BOARD.

The record shows no sufficient facts or evidence to substantiate or

support Appellee's decision to suspend the license for incompetence under 29-

A MRSA §2458(2)(D) without consulting the Medical Advisory Board.

Page 15 of 24


DETERMINED OFC. DOSSANTOS NOTIFIED APPELLANT OF ALL


The final outcome of this case hinges upon the law court's decision if

Appellant received 'actual notice' of the December 2009 Notice of Suspension

for Failure to File Medical Evaluation as required by statute and motor vehicle

rules.

Appellee falsely alleges that 'actual notice' was given to Appellant verbally

on March 7, 2011 by Ofc. DosSantos of the Augusta Police Department during

a traffic stop.

There is no evidence in the record to support Appellee's claim that Ofc.

DosSantos satisfied requirements of actual notice by informing Appellant of all

elements subject to the provisions of 29-A MRSA §2458(4).

29-250, Ch. 2 Motor Vehicle Rules clearly state for Administrative

Hearings, subsection 2, Secretary of State upon suspending or revoking a

person’s license...shall notify that person that the person has a right to and may

request a hearing. The notice must state:

1. The reason and statutory grounds for the suspension or revocation;

2. The effective date of the suspension or revocation;

3. The procedure for requesting a hearing; and

4. The date by which that request for hearing must be made.

There is no evidence in the record to substantiate the claim that Ofc.

DosSantos knew or informed Appellant of the reason or statutory grounds for

Page 16 of 24

the suspension, the procedure for requesting a hearing, or the date by which

the request for hearing must be made. The only knowledge Ofc. DosSantos

claimed to have or delivered to Appellant was the license was suspended by the

medical unit on January 5, 2010.


FAILED TO PROVIDE ADMINISTRATIVE HEARING IN MARCH AND

APRIL 2013.

29-250 Motor Vehicle Rules Section 3 requires, "If a request is made after

the ten day period and the Secretary of State finds that the person was unable to

make a timely request due to lack of actual notice of the suspension..., the

Secretary of State shall waive the period of limitation, reopen the matter and

grant the hearing request, except a stay may not be granted."

Superior Court indicated in their October decision that the waiver applies

only "if Petitioner can prove she did not have 'actual' notice of the suspension.

But these are not the facts of this case. On March 7, 2011, an actual notice was

given to Turcotte by a law enforcement officer, who during the traffic stop,

personally informed Turcotte that her driver's license had been suspended."

There are no facts in the record to substantiate Appellee's claim that

actual notice was properly given to Appellant by Ofc. DosSantos on March 7,

2011.

Appellant maintains Ofc. DosSantos confessed to having no knowledge

by which he was competent to provide actual notice of all elements as required

Page 17 of 24

by law. The only element of actual notice Ofc. DosSantos provided was that the

license had been suspended by the medical unit on January 5, 2010.

There is no evidence in the record that Appellant was given verbal or

written notice by the medical unit on March 7 or 8, 2011 of the statutory

authority for the medical suspension or of Appellant's right to request an

administrative hearing to challenge the evidence and basis for the suspension.

Appellee cannot substantiate by evidence in the record that Appellant

received actual notice prior to March 2013 of the statutory authority for the

medical suspension under 29-A MRSA §2458(2)(D).

CONCLUSION

For the foregoing reasons together with those reasons the law court finds

pertinent and persuasive, Appellant respectfully moves the court to find that

actual notice requirements were not met, immediately reverse the January 5,

2010 decision by Secretary of State to suspend the license under 29-A MRSA

§2458(2)(D) for 'incompetence to drive a motor vehicle', void all companion

cases which resulted directly or indirectly from this medical suspension

(docketed under AUGDC-CR-2011-512, AUGDC-CR-2011-513, AUGSC-CR-

2012-286, including unidentified Violations Bureau summonses).

If the law court remands this action back to Secretary of State for proper

hearing, the final outcome will be a full nullification of the medical suspension

as well as all companion cases resulting directly or indirectly from the 2010

medical suspension so Appellant moves the law court to take the appropriate

action now nullifying the medical suspension and all corresponding violations,

Page 18 of 24

and issuing an order for a complete refund and forgiveness of all fines and

reinstatement fees resulting from this and the companion cases cited herein.

If the law court decides actual notice was provided as required by law,

and that "failure to file a medical evaluation" rises to the level of being

"incompetent to drive a motor vehicle", Appellant needs full definitive opinions

specifying the elements which caused Appellant to become "incompetent to

drive a motor vehicle" and the facts and evidence supporting those opinions.

Dated in Augusta Maine this 17th day of January 2014.

In Peace,

GINA TURCOTTE 41 LAMBERT AVENUE AUGUSTA, MAINE

Page 19 of 24

CERTIFICATE OF SERVICE

I hereby certify that on January 17, 2014, I filed and served the foregoing

brief by causing a copy to be electronically filed and served on all counsel of

record via the appellate CM/ECF system. I also hereby certify that I have

caused all necessary copies to be delivered to the Court by United States Postal

Service Priority Mail.

DATED: January 17, 2014 __________________________________________

GINA TURCOTTE

Gina Turcotte v Secretary of State - Ken-13-514 - Appellant's Appeal Brief

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