Roberts v. State of Maine

March 1, 1995 UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 93-2392

ALAN D. ROBERTS,

Plaintiff - Appellant,

v.

STATE OF MAINE,

Defendant - Appellee.

ERRATA SHEET

The opinion of this Court issued on February 16, 1995, is

amended as follows:

On page 34, 2d line from end of text: Change "infra" to

"supra";

On page 43, delete "Conclusion".

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2392

ALAN D. ROBERTS,

Plaintiff - Appellant,

v.

STATE OF MAINE,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Cyr and Stahl,

Circuit Judges.

Robert E. Sandy, Jr., with whom Sherman, Sandy & Lee, was on

brief for appellant.
Donald W. Macomber, Assistant Attorney General, with whom

Michael E. Carpenter, Attorney General, Charles K. Leadbetter and

Wayne S. Moss, Assistant Attorneys General, were on brief for

appellee.

February 16, 1995

TORRUELLA, Circuit Judge. Maine's "implied consent"
TORRUELLA, Circuit Judge.

law imposes a two-day mandatory minimum jail sentence on

defendants who refuse to take a blood/alcohol test and are later

convicted of operating a motor vehicle under the influence of

intoxicating liquor. 29 M.R.S.A. 1312, 1312-B. Petitioner-

Appellant Alan D. Roberts challenges the constitutionality of his

conviction and sentence under this law because, prior to his

decision not to take a blood/alcohol test, (1) a police officer

informed Roberts of "the consequences" of refusing to take the

test but did not mention the mandatory jail sentence, and (2) the

police officer denied Roberts' request to call his attorney. We

find that under the particular circumstances of this case,

Roberts' constitutional right to due process was violated and his

petition for writ of habeas corpus must be granted as to his two-

day mandatory sentence.

I. BACKGROUND
I. BACKGROUND

On January 25, 1991, Officer Alan Main of the

Waterville, Maine Police Department stopped Roberts after Officer

Main observed Roberts driving erratically. Officer Main smelled

alcohol on Roberts' breath and suspected Roberts was driving

while intoxicated but initially arrested Roberts only for

operating a vehicle with a suspended license in violation of 29

M.R.S.A. 2184. Officer Main handcuffed Roberts and then

transported him to the Waterville Police Station for processing.

Roberts remained in handcuffs throughout the relevant time period

at issue in this case.

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At the police station, Officer Main read Maine's

"implied consent" form to Roberts, which is normally read to any

driver stopped or arrested for operating under the influence of

intoxicating liquor pursuant to 29 M.R.S.A. 1312. The form

states:

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 blood-alcohol
level and drug concentration.

I will give you a breath test unless I
decide it is unreasonable, in which case
another chemical test will be given. If
you are requested to take a blood test
you may ask that your physician perform
the test if your physician is reasonably
available.

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 at least 6 months and may
be suspended as long as 3 years. Your
failure to submit to a chemical test is
admissible against you at any trial for
operating while under the influence of
intoxicating liquor or drugs.

I have been advised of the consequences
of failure to comply with the duty to
submit to and complete a chemical test at
the request of an officer and DO NOT WISH
TO SUBMIT TO A TEST.

Signature of Person Refusing
Test

Maine's implied consent form essentially tracks the

language of the "implied consent" statute which requires officers

to warn suspected drunk drivers of potential consequences of

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refusing to take the blood/alcohol test. 29 M.R.S.A. 1312. As

the statute was originally enacted, the only two consequences for

failure to consent were, as the form states, suspension of the

suspect's driver's license and the admission of the fact that the

suspect refused to take the test in evidence at trial. In 1987,

however, the Maine legislature amended its statute to provide two

additional consequences, both involving sentencing, for refusing

to take a blood/alcohol test. 1987 Maine Laws, ch. 791. Under

the current law, a defendant's refusal to submit to the test is

considered to be an "aggravating factor" for the determination of

that defendant's sentence and, more significantly, that

defendant's refusal will result in a mandatory minimum sentence

of 48 hours incarceration upon conviction. 29 M.R.S.A. 1312-

B(2) & (2)(B)(4).

Unfortunately, these changes did not make their way

into the portion of the statute mandating what the police must

say to suspected drunk drivers after those drivers are stopped.

29 M.R.S.A. 1312(1). As a result, the "implied consent" form

was never changed to reflect the additional consequences for

refusing to submit to a blood/alcohol test. Likewise, during

Roberts' processing at the police station, Officer Main never

informed Roberts of the additional consequences, including the

mandatory jail sentence.

During the period when Officer Main was administering

the "implied consent" procedure to Roberts, Roberts asked several

times to use the telephone for the purpose of calling his

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attorney. Officer Main refused to allow Roberts to do so.

Officer Main claimed that he denied Roberts permission to contact

hisattorneybecauseRobertswas uncooperativeandshoutingobscenities.

Roberts eventually refused to take the blood/alcohol

test. He also refused to sign the "implied consent" form after

the form was read to him. Subsequently, the police filed a

criminal complaint against Roberts charging him, among other

things, with operating a motor vehicle under the influence of

intoxicating liquor ("OUI") and operating on a suspended license

in violation of 29 M.R.S.A. 1312-B and 29 M.R.S.A. 2184

respectively.

After a trial in the Maine district court, Roberts was

convicted on the OUI and operating on a suspended license

charges. At sentencing, the court followed the requirements of

29 M.R.S.A. 1312-B(2)(B)(4) and imposed the mandatory minimum

48-hour sentence of incarceration as a result of Roberts' refusal

to take a blood/alcohol test.1 Roberts appealed his conviction

to the Kennebec County Superior Court and then to the Maine

Supreme Judicial Court. Both appellate courts denied his appeal.

Following remand for the imposition of sentence, Roberts

initiated a Petition for Writ of Habeas Corpus in the United

States District Court for the District of Maine. The Maine state

trial court ordered the sentence of incarceration stayed pending

the outcome of proceedings on the habeas corpus petition. The

1 The court also imposed a 90-day license suspension and a fine
for Roberts' conviction of the substantive offenses of drunk
driving and driving with a suspended license.

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federal district court dismissed Roberts' habeas corpus petition

on October 29, 1993. Roberts then brought this appeal.

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II. ANALYSIS
II. ANALYSIS

Roberts raises two related issues on appeal: (1)

whether Officer Main's refusal to allow Roberts to call his

attorney before deciding whether to take a blood/alcohol test

denied Roberts of his Sixth Amendment right to counsel; and (2)

whether Maine's "implied consent" form is misleading and

inaccurate, in violation of Roberts' constitutional right to due

process. Although Roberts' Sixth Amendment right to counsel is

not implicated in this case, we do find a violation of Roberts'

due process rights on the grounds that all of the circumstances

of the case, including, but not limited to, the misleading

information, deprived Roberts of fundamental fairness.

A. Sixth Amendment Right to Counsel
A. Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution

guarantees that, "[i]n all criminal prosecutions, the accused

shall enjoy the right to . . . have the Assistance of Counsel for

his defense." U.S. Const. amend. VI. It is axiomatic that the

right to counsel attaches only upon "the initiation of adversary

judicial criminal proceedings" against the defendant, and

thereafter the right applies to all "critical stages" of the

prosecution, before, during and after trial. United States v.

Gouveia, 467 U.S. 180, 189 (1984); United States v. Ash, 413 U.S.

300, 310-13 (1973); Kirby v. Illinois, 406 U.S. 682, 688-90

(1972); United States v. Wade, 388 U.S. 218, 225-27 (1967).

The initiation of adversary judicial proceedings is

normally "by way of formal charge, preliminary hearing,

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indictment, information, or arraignment." Kirby, 406 U.S. at

689. In general terms, the point at which the right to counsel

attaches is when "formal charges" have been initiated or when

"the government has committed itself to prosecute." Moran v.

Burbine, 475 U.S. 412, 430-32 (1986); Gouveia, 467 U.S. at 189;

Kirby, 406 U.S. at 689. "By its very terms, [the Sixth

Amendment] becomes applicable only when the government's role

shifts from investigation to accusation. For it is only then

that the assistance of one versed in the 'intricacies . . . of

law,' . . . is needed to assure that the prosecution's case

encounters 'the crucible of meaningful adversarial testing.'"

Moran, 475 U.S. at 430 (1986) (quoting United States v. Cronic,

466 U.S. 648, 656 (1984)).

In the present case, state officials had not brought

any formal charges against Roberts for drunk driving at the time

Roberts refused to take the blood/alcohol test. The first state

action that could conceivably resemble a formal charge, the

filing of the criminal complaint against Roberts for OUI, did not

occur until after Roberts refused to submit to the test. Thus,

at the point when Roberts was denied his request to speak with

his attorney, the government had not yet committed to prosecuting

him for OUI, nor had the government shifted its role from that of

investigation to accusation. We find, therefore, that Roberts'

right to counsel had not attached at the time of the alleged

violation of his Sixth Amendment rights. See McVeigh v. Smith,

872 F.2d 725 (6th Cir. 1989) (finding that the Supreme Court

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rejected the argument that a suspect's right to counsel attaches

prior to taking a blood alcohol test in Nyflot v. Minnesota

Comm'r of Public Safety, 474 U.S. 1027 (1985), in which the

Supreme Court dismissed an appeal raising the right to counsel

argument for lack of substantial federal question); Langelier v.

Coleman, 861 F.2d 1508, 1510 n.3 (11th Cir. 1988) (noting right

to counsel had not yet attached when suspect was asked to take a

blood/alcohol test).

We recognize the possibility that the right to counsel

might conceivably attach before any formal charges are made, or

before an indictment or arraignment, in circumstances where the

"'government had crossed the constitutionally significant divide

from fact-finder to adversary.'" United States v. Larkin, 978

F.2d 964, 969 (7th Cir. 1992), cert. denied, 113 S. Ct. 1323

(1993) (quoting United States Ex Rel. Hall v. Lane, 804 F.2d 79,

82 (7th Cir. 1986)). Such circumstances, however, must be

extremely limited and, indeed, we are unable to cite many

examples. See Larkin, 978 F.2d at 969 (citing Bruce v.

Duckworth, 659 F.2d 776, 783 (7th Cir. 1981), for the proposition

that the government may not intentionally delay formal charges

for the purpose of holding a lineup outside the presence of

counsel). Overall, Supreme Court jurisprudence on the Sixth

Amendment appears to allow for few exceptions to the bright-line

rule that the right to counsel does not attach until the

government initiates official proceedings by making a formal

charge. See United States v. Heinz, 983 F.2d 609, 612-13 (5th

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Cir. 1993) (interpreting Gouveia, 467 U.S. at 187-190, and other

Supreme Court precedent as establishing a strictly formal test

for determining the initiation of judicial proceedings as opposed

to a more functional test based on whether the government had

taken on an adversarial stance towards the defendant or whether

the government had focussed its investigation on the defendant);

see also Moran, 475 U.S. at 431 ("The clear implication of the

holding [in Maine v. Moulton, 474 U.S. 159 (1985)], and one that

confirms the teaching of Gouveia, is that the Sixth Amendment

right to counsel does not attach until after the initiation of

formal charges.") (emphasis added).

Roberts asserts that the special circumstances of this

case establish a Sixth Amendment right to counsel. According to

Roberts, the mandatory sentencing consequences of refusing to

take the blood/alcohol test, combined with the misleading

information provided by Maine regarding the consequences that

would arise from his refusal to take the test and the denial of

Roberts' request to call his attorney to clear up the

misunderstanding, somehow transformed the normally investigatory

testing procedure into an adversarial, quasi-prosecutorial,

sentencing proceeding. Appealing as this argument may be, we

must reject it. Whatever limited circumstances may exist in

which the right to counsel attaches prior to a formal charge, it

cannot include the circumstances in the present case because the

police were still waiting for the outcome of their investigation

-- either from the results of the blood/alcohol test or from the

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fact of defendant's refusal to submit to the test -- before

deciding whether or not to bring charges against the defendant.

The government had not yet crossed the constitutional divide

between investigator and accuser. As a threshold matter, the

right to counsel had not yet attached when Robert's request for

counsel was denied, and, therefore, we cannot reach the further,

and admittedly close, question of whether or not Roberts decision

to take the blood/alcohol test involved a "critical stage" of the

prosecution at which the right to have the advice of counsel

would otherwise be constitutionally required.

B. Due Process
B. Due Process

We do find merit, however, in Roberts' claim that

Officer Main's actions violated Roberts' right to due process.

The combination of circumstances in this case presents a unique

situation in which the state of Maine failed to meet the

requirements of fundamental fairness.

The Due Process Clause of the Constitution prohibits

deprivations of life, liberty, or property without "fundamental

fairness" through governmental conduct that offends the

community's sense of justice, decency and fair play. Moran v.

Burbine, 475 U.S. 412, 432-34 (1986); United States v. Russell,

411 U.S. 423, 432 (1973); Hannah v. Larche, 363 U.S. 420, 442

(1960); Rochin v. California, 342 U.S. 165, 172-73 (1952); United

States v. Barnett, 989 F.2d 546, 560 (1st Cir.), cert. denied,

114 S. Ct. 148 (1993). "Due process" is a flexible concept --

"the processes required by the Clause with respect to the

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termination of a protected interest will vary depending upon the

importance attached to the interest and the particular

circumstances under which the deprivation may occur." Walters v.

National Ass'n of Radiation Survivors, 473 U.S. 305, 320 (1985).

The test for determining whether state action violates the Due

Process Clause, formally set out in Mathews v. Eldridge, 424 U.S.

319, 335 (1976), requires a court to consider: (1) the private

interest that will be affected by the government's action; (2)

the risk of an erroneous deprivation of such interest through the

existing procedure and the probable utility of additional or

substitute procedural safeguards; and (3) the government's

interest in adhering to the existing procedure, including fiscal

and administrative burdens that additional procedures might

entail. Id.; Walters, 473 U.S. at 321; Mackey v. Montrym, 443

U.S. 1, 10 (1979); In Re Nineteen Appeals Arising out of San Juan

Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 611 (1st Cir.

1992).

We find that Officer Main's actions in this case

deprived Roberts of liberty in a manner lacking in fundamental

fairness and offensive to the universal sense of fair play. The

police officer took Roberts into custody and, while Roberts was

handcuffed at the police station, presented him with a choice

that had irrevocable sentencing consequences involving a

mandatory period of incarceration. Roberts was asked to take a

blood/alcohol test and told that if he refused to submit to the

test, his drivers license would be suspended and the fact of his

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refusal could be used against him at trial. Roberts was then

informed that he had been "advised of the consequences of failure

to comply." This statement was misleading because there is at

least one additional consequence of failing to consent to a test:

a 48-hour term of incarceration. Roberts was never told that his

refusal to take the test could also result in a mandatory two-day

jail sentence if he were to be convicted of driving under the

influence of alcohol. Thus, Roberts was not informed of "the

consequences" of failing to comply with the "implied consent"

procedure.

Following Officer Main's reading of the "implied

consent" form, Roberts asked to call his attorney before deciding

whether or not to take the blood/alcohol test. Officer Main

denied this request, despite the apparent absence of any

inconvenience or unreasonable delay in allowing the phone call.

If allowed to speak with his attorney, Roberts could have been

informed of the sentencing consequences of a decision not to

submit to the blood/alcohol test, thus clarifying the misleading

information provided by Maine's "implied consent" form. The

attorney could have also provided advice to Roberts at the only

point during the process for determining Roberts' sentence when

the mandatory consequences of the two-day term of incarceration

could still be avoided. The attorney's advice would come too

late at the sentencing hearing itself, at which time there is

nothing the attorney can do to mitigate or rebut the imposition

of the 48-hour jail term. Roberts thus had to make a decision

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with irrevocable consequences for his sentence after the state

provided him with inaccurate information with which he was

expected to make that decision. Under this combination of

circumstances, it is incumbent upon the state to honor a

reasonable request to call an attorney. Refusing to provide this

simple safeguard violated Roberts' right to due process.

A review of the Mathews factors confirms our

conclusion. The liberty interest deprived by the state's actions

in this case is Roberts' freedom from the mandatory two-day jail

sentence imposed because of the refusal to take a blood/alcohol

test. Roberts' interest in freedom from incarceration is

certainly worthy of substantial due process protections. See,

e.g., United States v. Salerno, 481 U.S. 739, 750 (1987);

Addington v. Texas, 441 U.S. 418, 423-25 (1979). In addition,

Maine placed Roberts in a position where he was forced to make a

decision between cooperating with investigators and suffering

mandatory and irrevocable consequences for his subsequent

sentencing. Cooperation in this case would probably have sealed

Roberts' fate at trial but it also would have avoided certain

harsher penalties. Roberts thus faced a situation similar in

some respects to plea bargaining. As such, Maine's "implied

consent" procedure implicates Roberts' right to receive fair

treatment by the prosecution during plea bargaining. Santobello

v. New York, 404 U.S. 257, 261-62 (1971); Brady v. United States,

397 U.S. 742, 756-58 (1970); United States v. Bouthot, 878 F.2d

1506, 1511 (1st Cir. 1989).

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Moreover, the mandatory sentencing consequences

stemming from Roberts' refusal to take the blood/alcohol test

injects important elements of sentencing procedure into the

police investigation of a suspected OUI offense. Because Roberts

can do nothing to contest the imposition of a 48-hour term of

incarceration at the sentencing hearing itself, the critical

point for calculating a key portion of Roberts' sentence

essentially occurs at the time Roberts is requested to take the

blood/alcohol test. Thus, this case implicates Roberts' interest

in fair sentencing procedures. Gardner v. Florida, 430 U.S. 349,

358 (1977); United States v. Doe, 655 F.2d 920, 927-28 (9th Cir.

1980). We find, therefore, that Maine's actions towards Roberts

implicate important liberty interests deserving of substantial

due process protection.

Turning to the second consideration under Mathews, the

risk of erroneous deprivation of the liberty interest and the

probable value of an additional procedural safeguard, we find a

strong due process justification for allowing Roberts to contact

his attorney. Although Officer Main's refusal to allow Roberts

to call his attorney did not significantly increase the risk that

Roberts would be erroneously convicted of an OUI offense, the

officer's conduct greatly increased the risk that a two-day jail

sentence would be imposed on Roberts as a result of a decision

made in reliance upon misleading information. The erroneous

deprivation thus consists of attaching sentencing consequences to

a choice that an individual may not have made had the state

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provided him or her with accurate information. In other words,

absent the inaccurate information, the two-day jail term may not

have been imposed.

We are faced here with a unique situation in which the

sentencing consequences of incarceration are imposed not so much

for the substantive criminal conduct itself but for the separate

volitional act of refusing to cooperate with the investigation of

that conduct. As such, an erroneous deprivation of liberty can

result from a suspect's behavior under rather dubious

circumstances, if not false pretenses, created by the state. In

this case, Roberts might have chosen to cooperate and thus avoid

the mandatory term of incarceration if he had been allowed to

speak with his lawyer and correct the inaccurate information he

received. Once Roberts' decision was made, however, there was

nothing the attorney or judge could do at sentencing to remedy

Roberts' tainted decision.

On the other side of the coin, there is much that

allowing Roberts to call his attorney could do to safeguard

against the type of erroneous deprivation of liberty at risk in

this case. Plainly and simply, Roberts' attorney could have

informed Roberts of the additional sentencing consequences of

refusing to take the blood/alcohol test, thus correcting the

state's misleading information. The attorney could also counsel

Roberts on the advisability of cooperating to avoid the mandatory

two-day sentence. This is the only point at which such counsel

has any value; once the decision whether or not to submit to the

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test is made, the die is cast, and nothing the attorney can do at

sentencing will mitigate the effect of the two-day sentence.

The present situation thus presents concerns analogous

to those expressed by the Supreme Court in many of its right to

counsel cases. See Wade, 388 U.S. at 224 (affording right to

counsel at critical pre-trial stages of proceedings "where the

results might well settle the accused's fate and reduce the trial

itself to a mere formality"); Ash, 413 U.S. at 315-16 (noting

that "there were times when the subsequent trial would cure a

one-sided confrontation between prosecuting authorities and the

uncounseled defendant," rendering the absence of an attorney

acceptable, but that there were other times when an attorney was

required because there was no such "opportunity to cure defects

at trial"); Maine v. Moulton, 474 U.S. 159, 170 (1985); see also

Mempa v. Rhay, 389 U.S. 128, 133 (1967) (reviewing holding in

Townsend v. Burke, 334 U.S. 736 (1948), where the absence of

counsel during sentencing combined with false assumptions about

the defendant's criminal record was found to deprive the

defendant of due process, and noting that the counsel in that

case "'might not have changed the sentence, but he could have

taken steps to see that the conviction and sentence were not

predicated on misinformation or misreading of court records, a

requirement of fair play which absence of counsel withheld from

this prisoner.'") (quoting Townsend, 334 U.S. at 741). We

therefore conclude that Maine's implied consent procedure

presents a substantial risk of erroneous deprivation of liberty

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and that allowing Roberts to call his attorney is likely to

alleviate the risk and, as such, is a valuable procedural

safeguard.

Finally, we consider the state's interest in refusing

to allow Roberts to call his attorney, including any

administrative and fiscal burdens such a phone call would entail.

There is nothing in the record to indicate that allowing Roberts

to call his lawyer from the police station would impose on the

police any meaningful burden whatsoever. On the contrary, Maine

law allows for suspected drunk drivers to request their own

physician to conduct the blood/alcohol test if reasonably

available. 29 M.R.S.A. 1312. Maine thus already contemplates

making reasonable accommodations for drunk driving suspects.

Allowing a simple phone call to an attorney is much less

intrusive on the implied consent process than arranging a medical

procedure with the suspect's doctor.

Given the transient nature of the evidence in drunk

driving cases -- that is, the blood/alcohol level in a suspect's

blood -- the police may certainly proceed with the implied

consent procedure if a delay would affect the test results or

otherwise interfere with the testing procedure. The police may

refuse to wait for a suspect who is unable to reach an attorney

within a reasonable period of time or refuse to undertake time-

consuming and burdensome efforts to contact an attorney who is

not immediately available. There is no indication, however, that

such was the case here. Officer Main testified that he did not

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allow Roberts to call his attorney because Roberts was

uncooperative and shouting obscenities. We see no relevance of

this fact to any state interest in refusing to allow Roberts to

make a phone call before deciding whether or not to take the

blood/alcohol test. We therefore find no significant state

interest in refusing to allow Roberts to call his attorney that

would justify what we consider to be a denial of due process.

To clarify, we do not discount Maine's interest in

imposing an implied consent procedure to encourage the voluntary

testing of drunk drivers, nor do we have any quarrel with Maine's

desire to impose harsher penalties on those refusing to

cooperate. We see very little interest, however, in denying a

reasonable request at the police station to call an attorney,

where that call could serve to clear up misleading information

regarding the testing procedure provided by the state.

Furthermore, we do not find, in this case at least,

that a suspected drunk driver has a due process right to contact

an attorney whenever the state imposes mandatory sentencing

consequences upon the refusal of the suspect to take a

blood/alcohol test. Rather, we find that where the suspect makes

a reasonable request to contact his or her attorney and the

attorney can correct misleading information provided by the state

at a point when the suspect must make a decision that is crucial

for his or her subsequent sentencing, due process requires that

the suspect's request be honored.

We are confronted with a substantially different

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situation in this case than the one that the Supreme Court

considered in South Dakota v. Neville, 459 U.S. 553 (1983). In

Neville, the Supreme Court held that the Due Process Clause was

not violated when a police officer failed to warn a suspected

drunk driver that his refusal to submit to a blood-alcohol test

could be used against him at trial. The Court reasoned that

because the drunk driver in that case was specifically warned

that his refusal to submit to the test would result in the

suspension of his license, the driver knew that his refusal "was

not a 'safe harbor,' free of adverse consequences." Id. at 566.

The Court also noted that it was "unrealistic to say that the

warnings given here implicitly assure a suspect that no

consequences other than those mentioned will occur." Id.2

Unlike Neville, the present case is not a simple

"failure to warn" situation involving a state's withholding of

information that it was never required to provide. Rather, this

is a case in which a mandatory sentence of incarceration is

attached to a suspect's decision to take a blood/alcohol test,

where the suspect is given misleading information that indicates

no such sentence exists; and further, where that suspect is

denied permission to speak to an attorney who could have cleared

up the misunderstanding and who could have provided advice at the

2 The instructions given to the defendant in Neville contained

no language resembling the misleading statement in this case that
the suspect had been "advised of the consequences." The
instructions in Neville merely informed the suspect that if he

refused to take a blood/alcohol test, his license could be
suspended. The suspect was then merely asked: "Do you understand
what I told you?" Neville, 459 U.S. at 555 n.2.

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only point where the sentencing consequences could be avoided.

The Supreme Court did not address the due process implications of

these circumstances. Instead, Neville dealt with a quite

different issue: the due process implications of a state's

failure to warn about the use at trial of a suspect's refusal to

take a blood/alcohol test. The differences between the two cases

are stark.

First, Neville considered an interest of much lower

magnitude than Roberts' liberty interest in freedom from

incarceration. As the Supreme Court found, the use of the fact

that a suspect refused to submit to a test as evidence against

that suspect at trial does not implicate the suspect's Fifth

Amendment right against self-incrimination. Id. at 558-64.

Thus, the suspect in Neville had no protectable liberty interest

beyond the general right to a fair trial, a right which faced

little risk of erroneous deprivation in that case. Neville did

not involve a mandatory sentence that risked depriving an

individual of the important liberty interest of freedom from

incarceration, a liberty interest that is involved here.

Second, the consequence about which Maine failed to

warn Roberts in the present case is irrevocable and irrebuttable,

making the suggested procedural safeguard -- permission to call

an attorney -- crucial to protecting Roberts' liberty interest.

In the Neville case, however, the consequences involved an

evidentiary disadvantage that could be rebutted, mitigated or

otherwise explained by counsel at trial. The blood/alcohol test,

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therefore, was not the only point in Neville at which a

procedural safeguard would have had any value.

Third, there is an additional element of unfairness in

this case, not found in Neville, due to the misleading nature of

the instructions given to Roberts. In the Neville case, the

Supreme Court specifically noted that the suspect was given no

implicit assurances that he was being warned of all the

consequences of refusing to submit to testing, id. at 566,

whereas in this case, Roberts was told that he had been advised

of "the consequences," incorrectly implying that there were no

additional consequences. As a result, Roberts faced a greater

risk of erroneous deprivation of his liberty than the suspect in

Neville.

Due process may not require warnings of the

consequences of refusing to take a blood/alcohol test, and it may

not require a full right to counsel for suspects facing the

decision whether or not to submit to testing. Under the

circumstances of this case, however, as a matter of fair play and

decency, due process does require that Roberts be given a

reasonable opportunity to call his attorney before deciding on

whether to be tested.

CONCLUSION
CONCLUSION

For the foregoing reasons, we find that the mandatory

48-hour jail sentence imposed on Roberts pursuant to 1312-

B(2)(B)(4) violates due process. The infirmities in the

procedures surrounding Roberts' arrest did not, however, taint

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his underlying convictions for drunk driving and driving with a

suspended license. Accordingly, the judgment of the district

court is reversed and the case is remanded to the district court

with instructions to issue a writ of habeas corpus upon the

failure of the State of Maine to vacate the mandatory 48-hour

jail sentence imposed pursuant to 1312-B(2)(B)(4) and to accord

Roberts a sentencing hearing at which no minimum sentence is

mandated.

"Concurrence follows"

-23-

CYR, Circuit Judge (Concurring). Although I am pleased
CYR, Circuit Judge

to concur in the result reached in the ably crafted majority

opinion, I write separately on the due process claim.

On direct appeal, the Maine Supreme Judicial Court

("Law Court"), citing State v. Plante, 417 A.2d 991, 994 (1980)

(pre-Neville), erroneously concluded that "the right to a warning

of the consequences of refusing a chemical test is not one of

constitutional dimensions." State v. Roberts, 609 A.2d 702, 703

(Me. 1992).3 The district court below likewise erred in ruling

that a "requirement that a driver submit to a chemical test does

not implicate the due process clause of the Constitution,"

Roberts v. Maine, No. 93-0154-B, slip op. at 3 (D. Me. Sept. 24,

1993) (magistrate-judge's proposed findings and recommendation),

aff'd, slip op. at 1 (D. Me. Oct. 27, 1993) (emphasis added).

Consequently, neither court reached Roberts' due process claim.

The Law Court premised its conclusion in large part on

South Dakota v. Neville, 459 U.S. 553 (1983). See Roberts, 609

A.2d at 703 ("the [Neville] Court reasoned that allowing the

suspect to choose whether to submit to testing is 'a matter of

3 Under 28 U.S.C. 2254, we accord de novo review to state

court rulings on federal constitutional issues, Wellman v. Maine,

962 F.2d 70, 72 (1st Cir. 1992), as well as to mixed questions of
fact and law, id. ("Federal court may give different weight to

the facts as found by the state court and may reach a different
conclusion in light of the legal standard") (quoting Sumner v.

Mata, 455 U.S. 591, 597 (1982)). See also Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532, 541 (1985) ("minimum procedural

requirements are a matter of federal law, they are not diminished
by the fact that the State may have specified its own procedures
that it may deem adequate for determining the preconditions to
adverse official action.").

-24-

legislative grace' bestowed by the state legislature and thus,

not subject to constitutional protections."). However, the

statement relied on by the Law Court related to Neville's Fifth

Amendment self-incrimination claim, not the due process claim.

See infra at pp. 24-25. The Neville Court explicitly qualified

its statement so as to obviate any intimation that penalties for

refusing to submit to chemical testing are beyond the scope of

the Due Process Clause. Neville, 459 U.S. at 560 ("Such penalty

for refusing to take a blood-alcohol test is unquestionably

legitimate, assuming appropriate procedural safeguards.")

(emphasis added).4

The constitutional underpinnings for the more recent

Supreme Court pronouncements on "implied consent" procedures stem

from Schmerber v. California, 384 U.S. 757 (1966). See Nyflot v.

Minnesota Comm'r of Pub. Safety, 474 U.S. 1027, 1027-29 (1984)

(summary dismissal for want of substantial federal question)

(opinion of White, J., dissenting from summary dismissal);

Neville, 459 U.S. 553; see also Mackey v. Montrym, 443 U.S. 1

(1979); Dixon v. Love, 431 U.S. 105 (1977); Bell v. Burson, 402

4 Indeed, the Plante case itself, upon which the Law Court

directly relied in Roberts, 609 A.2d at 703, involved a self-

incrimination claim as well. See Plante, 417 A.2d at 994.

Viewed in context, the statement that an OUI suspect's "right to
refuse" testing is "simply a matter of grace bestowed by the . .
. Legislature," Neville, 459 U.S. at 565, was meant merely to

emphasize that the right to refuse testing, unlike the right to

silence underlying Miranda warnings, is not of "constitutional

dimension." Id. Thus, Neville in no sense eroded the "constit-

utional dimension" inherent in the traditional procedural safe-
guards attending deprivations of protected liberty interests.
Id. at 560. See Mackey v. Montrym, 443 U.S. 1, 17-19 (1979).

-25-

U.S. 535, 539 (1971); Breithaupt v. Abram, 352 U.S. 432 (1957).

Schmerber held the Fifth Amendment privilege against self-in-

crimination inapplicable because blood-alcohol level testing

("chemical testing"), albeit a Fourth Amendment search and

seizure, simply yields real or physical evidence as distinguished

from "testimonial" evidence. Schmerber, 384 U.S. at 765.

Accordingly, the State may force a nonconsenting suspect to

submit to a reasonable chemical test under exigent circumstances,

without a warrant, provided there is probable cause to arrest the

suspect for "operating under the influence" ("OUI"). Id. at 766-

72. And since alcohol and drugs are evanescent substances

inexorably metabolized by the body, the "exigent circumstances"

requirement is almost invariably met by the urgent need to test

before a warrant can be obtained. Id. at 770-71.

Years later, in Neville, the Supreme Court rejected two

distinct constitutional challenges to an "implied consent"

statute which empowered South Dakota to introduce into evidence

an OUI suspect's refusal to submit to chemical testing. First,

the Court held that the Fifth Amendment right against self-

incrimination was never implicated because the State did not

impermissibly coerce the refusal. Neville, 459 U.S. at 562-64.

Second, and more to the present point, the Court rejected

Neville's substantive due process claim premised on Doyle v.

Ohio, 426 U.S. 610 (1976). Neville, 459 U.S. at 564-66. Even

though Neville was not warned that his refusal to submit to

chemical testing could be offered against him at trial, and

-26-

notwithstanding the fact that the police had advised him that his

silence could not be used against him, see Miranda v. Arizona,

384 U.S. 436, 467-73 (1966), the Supreme Court nevertheless found

no "misleading implicit assurances" that the refusal to be tested

would not be introduced in evidence, since "the warning that

[Neville] could lose his driver's license made it clear that

refusing the test was not a 'safe harbor,' free of adverse

consequences." Neville, 459 U.S. at 565-66. Neville thus upheld

the power of the State to penalize refusals to submit to chemical

testing, but explicitly conditioned its exercise on the avail-

ability of "appropriate procedural protections." Id.

The procedural due process analysis appropriate to the

present context contrasts starkly with the substantive due

process analysis in Neville, where the only unwarned adverse

consequence was that the State ultimately might be allowed to

request the trier of fact, at trial, to infer that the refusal to

be tested constituted evidence of his consciousness of guilt

(intoxication). See S.D. Codified Laws 32-23-10.1. (1980)

("such refusal may be admissible" in evidence at trial.) In such

a setting, a defendant would be afforded the full panoply of

procedural protections available at trial. First, the State's

evidentiary proffer of the refusal to be tested would be subject

to objection by the defendant; for example, on grounds that it

did not evince the suspect's consciousness of guilt but mere con-

fusion as to his legal rights. See Fed. R. Evid. 401, 403.

Second, if the refusal were admitted in evidence, the defendant

-27-

would be allowed to introduce evidence to rebut any

"consciousness of guilt" inference. Finally, the trier of fact

would be permitted, and could not be required, see Carella v.

California, 491 U.S. 263, 265 (1989) (per curiam); Sandstrom v.

Montana, 442 U.S. 510, 514 (1979), to infer "consciousness of

guilt," but only to consider it, along with all other evidence,

in determining whether the defendant was guilty beyond a

reasonable doubt. Thus, in Neville, no unwarned consequence

flowed inexorably from the refusal to be tested. All conven-

tional trial procedures for barring and rebutting the refusal

evidence remained available, including the right to defend

against it on the issue of guilt.

On the other hand, no meaningful procedure remained for

Roberts to defend against the term of confinement mandated upon

conviction for OUI as a consequence of the unwarned refusal to be

tested. See Mempa v. Rhay, 389 U.S. 128, 133-34 (1967)

(sentencing is critical stage in criminal process); see also

Palmer v. City of Euclid, 402 U.S. 544, 546 (1971) (per curiam);

cf. Burns v. United States, 111 S. Ct. 2182, 2187 (1991) (even

where sentencing court is vested with explicit sentencing

discretion, sua sponte upward departure absent prior notice to

defendant raises serious due process concerns).

Under the Maine "implied consent" procedure, see 29

M.R.S.A. 1312, 1312-B) (Supp. 1994) (collectively: "section

1312"), the suspect is never warned that refusal to be tested

entails a mandatory minimum sentence upon conviction for OUI. No

-28-

matter how compelling or innocent the suspect's reason for

refusing to be tested, see, e.g., Jamros v. Jensen, 377 N.W.2d

119, 123 (Neb. 1985), the sentencing court must impose a minimum

term of confinement, without regard to whether either the trier

of fact or the sentencing judge ascribes the slightest "con-

sciousness of guilt" to the suspect's refusal to be tested.

Thus, in due process terms Maine's standard "implied consent"

procedure differs essentially from the process upheld in Neville,

particularly with respect to the absence of adequate pre-

deprivation notice and a meaningful opportunity to be heard. See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).

The State need not acquiesce in an OUI suspect's

refusal to submit to testing under an "implied consent" statute.

Schmerber, 384 U.S. at 770-71. But once it opts to allow

suspects to refuse chemical testing, it may not disregard proce-

dural due process constraints under the Fourteenth Amendment by

depriving suspects of their protected liberty interest in

remaining free from incarceration, without affording either

adequate predeprivation notice or meaningful postdeprivation

process. See Loudermill, 470 U.S. at 541 ("While the legislature

may elect not to confer [an interest], it may not

constitutionally authorize the deprivation of such an interest,

once conferred, without appropriate procedural safeguards.")

The majority opinion in the present case essentially

relies on a Doyle-based substantive due process analysis, see

Doyle, 426 U.S. at 617-19, in concluding that it was

-29-

fundamentally unfair for the State of Maine to subject Roberts to

an unwarned mandatory minimum term of confinement for refusing to

be tested. See supra pp. 10-12. Although I am in substantial

agreement with its substantive due process analysis, particularly

that the warnings given Roberts included seriously "misleading

implicit assurances" a subject neither reached by the Law

Court nor discussed by the district court it is less clear to

me that a substantive due process analysis is appropriate

following Albright v. Oliver, 114 S. Ct. 807 (1994).

Even though the Fourteenth Amendment affords both

substantive and procedural due process protections, the Supreme

Court cautioned in Albright that "where a particular amendment

provides an explicit textual source of constitutional protection

against a particular sort of government behavior, that Amendment,

not the more generalized notion of substantive due process must

be the guide for analyzing these claims." Id. at 813. In the

present context, therefore, Albright appears to require at least

initial resort to the procedural due process jurisprudence having

particular application to similar proceedings. See Mackey, 443

U.S. at 10-19 (applying procedural due process analysis to

license suspension for refusal to submit to chemical testing).5

5 Were it otherwise, however, it should be noted that "funda-
mental fairness" was disserved in the instant case by the
presence of an important factor specifically found absent in

Neville, 459 U.S. at 563-64. That is, the Maine "implied

consent" advisory, whether by design or inadvertence, assuredly
has the effect of "subtly coerc[ing] [suspects] into choosing the

option [viz., refusal to be tested] that the State ha[s] no right

to compel, rather than offering a true choice." Id. (emphasis

added). Cf. Roberts, 609 A.2d at 703 n.1 ("As in Neville, the

-30-

The cornerstone regimen for identifying the particular

process appropriate to deprivations of life, liberty or property

is limned in Mathews v. Eldridge, 424 U.S. 319 (1976).

Identification of the specific dictates
of due process generally requires
consideration of three distinct factors:
First, the private interest that will be
affected by the official action; second,
the risk of an erroneous deprivation of
such interest through the procedures
used, and the probable value, if any, of
additional or substitute procedural
safeguards; and finally, the government's
interest, including the function involved
and the fiscal and administrative burdens
that the additional or substitute
procedural requirement would entail.

Id. at 335.

Under section 1312-B(2)(B)(4) (1987), a person

convicted as a first-time OUI offender must serve not less than a

two-day term of confinement if he refused to submit to chemical

warnings provided in this case were not designed to "trick" the

defendant into refusing a test, then using the refusal against
him at trial.") (emphasis added). As the Supreme Court excepted
such subtle coercion from the sweep of its ruling rejecting
Neville's Fifth Amendment claim against self-incrimination,
Neville, 459 U.S. at 566, this factor too would weigh heavily

against the Maine "implied consent" advisory under any
substantive due process analysis which may remain open following
Albright. See Albright, 114 S. Ct. at 820-21 (Souter, J.,

concurring) (due process clause affords protections not directly
addressed by more particular constitutional provision).

Under either a procedural or substantive due process analysis,
however, the State may not deprive a person of the core liberty
interest in remaining free from incarceration, without affording
either adequate advance notice or meaningful post-refusal

process, by imposing a mandatory minimum term of confinement upon
an unwarned suspect for electing to accept a state-tendered
option to refuse chemical testing. Cf. Burns, 111 S. Ct. at

2187; Neville, 459 U.S. at 563 (noting that it is legitimate for

the State to "offer [the] option of refusing the test, with the

attendant penalties for making that choice.") (emphasis added).

-31-

testing. Maine alone mandates a minimum term of confinement upon

conviction for OUI after failing to submit to chemical testing,

yet inexplicably withholds from its standard "implied consent"

advisory any mention of the mandatory minimum term of confinement

attending the refusal to submit. See supra p. 3.6

The standard advisory contemplates that the police

provide two explicit warnings before requesting an OUI suspect to

submit to chemical testing. First, the suspect is to be informed

that refusal to be tested will result in an administrative

suspension of motor vehicle operating privileges for not less

than six months nor more than three years. Id. 1312(1) (first

offense). Second, the police "should also inform the [suspect]

that the failure to comply with the duty to submit to a chemical

test is admissible in evidence" at a subsequent OUI trial. Id.

Although a failure so to inform the suspect does not render any

chemical-test result inadmissible, see id., no sanction omitted

from the standard advisory can be imposed upon the accused,

except the mandatory minimum sentence at issue in this appeal.

See id. 1312 (1),(2),(8).7

6 The police are required to read a standard advisory to the OUI
suspect, see Roberts, 609 A.2d at 703, and no more, see id. at

704. The Law Court concluded that it is "without authority to
expand the warning to encompass the full range of potential
penalties," id., and we are bound by its interpretation of the

Maine statute, see Ortiz v. DuBois, 19 F.3d 708, 713 n.5 (1st

Cir. 1994), cert. denied, 63 U.S.L.W. 3515 (U.S. Jan. 9, 1995).

Thus, the omission of the mandatory minimum sentence from the
standard advisory plainly originates in section 1312.

7Section 1312 (1) states:

-32-

Among the other forty-nine states, only four impose any

Before any test specified is given, the
law enforcement officer shall inform the
person as to whom there is probable cause
that, if the person fails to comply with
the duty to submit to and complete the
required chemical tests at the direction
of the law enforcement officer, that
person's license. . . will be suspended
for a minimum of 6 months and may be as
long as 3 years. The officer should also
inform the person that the failure to
comply with the duty to submit to a
chemical tests (sic) is admissible in
evidence against that person at any trial
for operating under the influence of
intoxicating liquor or drugs.

No test results may be excluded as
evidence in any proceeding before any
administrative officer or court of this
State as a result of the failure of the
law enforcement officer to comply with
this prerequisite. The only effects of
the failure of the officer to comply with
this prerequisite are as provided in
subsections 2 and 8.

Section 1312(2) states in relevant part:

Any suspension in effect shall be removed
if, after hearing, it is determined that
the person who failed to submit to the
test would not have failed to submit but
for the failure of the law enforcement
officer to give either or both of the
warnings required by subsection 1.

Section 1312(8) states in relevant part:

If the law enforcement officer. . . fails
to give either of the warnings required
under subsection 1, the failure of the
person to comply with the duty to submit
to the chemical tests shall not be
admissible, except when a test was
required pursuant to subsection 11, para-
graph D [testing after an accident
involving death].

-33-

nonadministrative sanction for refusing chemical testing. Two

states, New York and New Jersey, prescribe mandatory minimum

civil fines following an adjudication in a separate proceeding,

based on an independent showing that the suspect failed to submit

to chemical testing. See N.Y. Veh. & Traf. Law 1194 (2)(c)

(1994) (separate administrative proceeding); N.J. Stat. Ann.

39:4-50.4a (1994) (separate judicial proceeding). See also State

v. DiSomma, 621 A.2d 55 (N.J. App. Div. 1993).8 Three states,

Alaska, Minnesota and Nebraska, have made it a separate criminal

offense to refuse to submit to chemical testing, but only if the

suspect was so informed at the time the request to submit was

made. See Ak. Stat. Ann. 28.35.032 (a) (1994) ("after being

advised. . . that the refusal is a crime"); Minn. Stat. 169.123

(b) (1994) ("At the time the test is requested, the person shall

be informed . . . that refusal to take a test is a crime.); Neb.

Rev. Stat. 60-6,197(10) (1993) ("Any person who is required to

submit to a . . . chemical blood test . . . shall be advised of

(a) the consequences of refusing to submit to such test or tests

. . . .); see also Jamros, 377 N.W.2d at 123 (holding that

defendant cannot be convicted unless forewarned that refusal to

submit is separate crime).

8 Under New Jersey law, the mandatory $250 civil fine is to be
imposed following a separate judicial proceeding, but only if the
suspect was so informed prior to refusing testing. N.J. Stat.
Ann. 39:4-50.2. Under New York law, a mandatory minimum $250
fine is to be imposed, following a separate administrative
proceeding, provided the suspect was forewarned that refusal to
be tested may result in a license suspension. N.Y. Veh. & Traf.
Law 1194 (2) (c).

-34-

In sum, then, section 1312, unlike the "implied

consent" procedure in any other state, neither criminalizes the

refusal to submit to chemical testing nor contemplates that the

suspect be forewarned that a criminal penalty, let alone a

mandatory minimum term of confinement, may attend the refusal.

Absent adequate notice that particular conduct has been

criminalized, a person may not be convicted or punished for it.

See Bouie v. City of Columbia, 378 U.S. 347, 361-63 (1964)

(failure to afford notice that statute criminalized particular

activity); Wright v. Georgia, 373 U.S 284, 293 (1963) (same);

Lambert v. California, 355 U.S. 225, 227 (1957) ("Notice is

required before property interests are disturbed, before assess-

ments are made, before penalties are assessed."). As a general

rule, of course, publication of a criminal statute affords

adequate notice to the public at large. Cheek v. United States,

111 S. Ct. 604, 609 (1991) ("Based on the notion that the law is

definite and knowable, the common law presumed that every person

knew the law."). And, of course, the common-law rule that

every person is presumed to know the law not only applies in

criminal cases, United States v. International Mins. & Chem.

Corp., 402 U.S 558, 563 (1970), but has prompted little concern

in the usual course.

The common-law rule would be perverted, however, were

it used to shield from constitutional challenge a deceptive State

advisory that is delivered directly to the individual suspect and

implicitly undermines any constructive notice presumptively

-35-

afforded by publication. See Raley v. Ohio, 360 U.S. 423, 438-39

(1959); see also Griffin v. Wisconsin, 483 U.S. 868, 875 n.3

(1987) (citing Lambert, 335 U.S. at 228) ("If the regulation in

question established a standard of conduct to which the

probationer had to conform on pain of penalty -- e.g. a

restriction on his movements -- the state court could not

constitutionally adopt so unnatural an interpretation of the

language that the regulation would fail to provide adequate

notice.") (emphasis added). Accordingly, in my view,

constructive notice by publication cannot insulate from proce-

dural due process challenge the deceptive assurances the standard

"implied consent" form instructs the police to communicate

directly to the suspect immediately prior to the decision to

refuse to submit to chemical testing. See Raley, 360 U.S. at

438-39.

The Supreme Court made clear in Neville, 459 U.S. at

566, that courts should be realistic in their assessment of the

context in which the allegedly misleading assurances are communi-

cated to the suspect. It would be unrealistic in the extreme to

suggest that a suspect in custody, whose only actual knowledge

comes directly from the police in the form prescribed by law,

nonetheless must be deemed on notice that the police advisory

incorrectly states the actual consequences of refusing to be

tested.9 See Raley, 360 U.S. at 438-39 (Although the Commission

9 A compelling public interest normally warrants invoking the
common-law presumption of constructive notice based on
publication; quite simply, there is no practicable alternative.

-36-

gave erroneous advice to the witnesses, "the fact remains that at

the inquiry [it was] the voice of the State most presently

speaking to the appellants.") (emphasis added); see also supra

notes 8 & 9. Implicit in any such unrealistic assessment is the

premise that a suspect in custody denied access to counsel and

totally dependent upon the State for the integrity of the implied

consent advisory should be presumed to have had not merely

constructive notice, but the requisite actual knowledge of the

procedural provisions of the "implied consent" statute that alone

might alert him, but see infra note 13, to the criminal sanction

attendant to a refusal to submit to testing. See supra note 5.

The standard "implied consent" advisory, naturally

interpreted, see Griffin, 483 U.S. at 875, n.3, realistically and

in context, see Neville, 459 U.S. at 566, undermines whatever

constructive notice might normally be presumed from mere publica-

tion of section 1312. See Raley, 360 U.S. at 438-39.10 The

See International Mins. & Chem. Corp., 402 U.S. at 563 ("The

principle that ignorance of the law is no defense applies whether
the law be a statute or a duly promulgated and published regula-
tion.") But where the only purpose served by the presumption is
to perpetuate a seriously flawed "implied consent" advisory that
is inherently unfair to the suspect and counterproductive to any
legitimate State interest, due process must be first served. See

infra pp. 40-43.

10 In Raley, certain witnesses were advised by the Ohio Un-

American Activities Commission, a creature of the Ohio
Legislature, that they were entitled to assert a state-created
privilege against self-incrimination. Raley, 360 U.S. at 424-25.

The Commission advisory was inaccurate, however, as an Ohio
statute conferred automatic transactional immunity upon witnesses
in return for their testimony. Id. at 431 (quoting Ohio Rev.

Code 101.44). After the witnesses were convicted of criminal
contempt of the Ohio Legislature for refusing to answer questions
put by its Commission, id. at 432, the United States Supreme

-37-

Court in Raley concluded that certain witnesses had been

convicted without due process "for exercising a privilege which

the State clearly had told [them] was available . . . ." Id. at

438 (emphasis added). The Court even reversed the conviction of

another witness, Brown, who was never advised that a privilege

existed, but whose attempts to assert privilege had been

facilitated by the Commission.11 Id. at 430. See Neville, 459

U.S. at 566 (leaving open the possibility that the State might

"unfairly trick" a person with an "implicit promise"); cf. Cox v.

Louisiana, 379 U.S. 559, 571 (1965) (vacating convictions, as

violative of procedural due process, on grounds that defendants

had been advised by police officials that picketing was permitted

at the arrest site).

Similarly, the standard "implied consent" advisory

challenged by Roberts conveys not merely a "mixed message," see

United States v. Smith, 940 F.2d 710, 715 (1st Cir. 1991), but

one likely to befuddle a Philadelphia lawyer. While it requires

the police to advise the suspect that he has the duty to submit

to testing, it also requires that the suspect be told that he may

elect not to submit to testing, subject only to certain

Court set aside their convictions as violative of the Due Process
Clause of the Fourteenth Amendment. Id. at 437.

11 Significantly, the Commission permitted Brown to utilize a
"shorthand" method for claiming privilege, id. at 430-31 ("the

Chairman's concern [as to whether Brown was asserting privilege]
is inexplicable on any other basis than that he deemed the
privilege available at the inquiry, and his statements would tend
to create such an impression in one appearing at the inquiry"),
without informing him that the claim was invalid, id. at431-32.

-38-

administrative and evidentiary consequences. Although it is

conceivable that "lesser included" sanctions for refusing testing

might be encompassed within Neville's "no safe harbor" rationale,

see Neville, 459 U.S. at 565-66, Maine's standard advisory could

only be salvaged on the counterintuitive theory that notice of

the lesser sanction should be deemed to encompass the greater

both in terms of severity and constitutional dimension thereby

abandoning the central constitutional concern for meaningful

process. See Armstrong v. Manzo, 380 U.S. 545, 551 (1965) (due

process clause envisions that the process due be accorded "at a

meaningful time and in a meaningful manner"); Raley, 360 U.S. at

438; cf. United States v. Cardiff, 344 U.S. 174, 176-77 (1952)

("We cannot sanction taking a man by the heels for refusing to

grant the permission which this Act on its face apparently gave

him the right to withhold. That would be making an act criminal

without fair and effective notice.") (overturning criminal

conviction for refusing admittance to government inspector in

reliance on regulatory provision that appeared to confer right to

refuse).12

12 The Law Court observed that 1312 was not designed to trick

Roberts into refusing to be tested. Roberts, 609 A.2d at 703

n.1, ("As in Neville, the warnings provided in [Roberts'] case

were not designed to "trick" the defendant into refusing a test,
then using the refusal against him at trial.") Supreme Court
case law makes clear, however, that where an "established state
procedure" deprives a person of a protected liberty interest
without appropriate safeguards, a violation of procedural due
process obtains. See Logan v. Zimmerman Brush Co., 455 U.S. 422,

436 (1982); see also Raley, 360 U.S. at 438 ("While there is no

suggestion that the Commission had any intent to deceive the
appellants, . . . to sustain the judgment of the Ohio Supreme
Court on such a basis after the Commission had acted as it did

-39-

Although the standard "implied consent" advisories on

the administrative (license suspension) and evidentiary

(admission of test refusal) sanctions for refusing testing afford

fair notice that refusal is "not a safe harbor", Neville, 459

U.S. at 566, Neville does not insulate from constitutional

challenge state-prescribed advisories that actively instigate the

natural and realistic interpretation that no sanction more

serious than the warned sanctions will attach to the suspect's

refusal to submit to testing.13 See, e.g., Raley, 360 U.S. at

425. Furthermore, by instructing the police to bait the "no-

would be to sanction the most indefensible sort of entrapment by
the State convicting a citizen for exercising a privilege
which the State clearly had told him was available to him.")

13 The standard "implied consent" advisory presents suspects
with a deceptive choice in two vital respects. First, the
suspect is never informed of the most serious, unmitigable, and
irremediable sanction for refusing to be tested. Second, were
the State to choose to force testing upon the suspect not-
withstanding his refusal, it is far from clear that the "option"
of refusal would avail the suspect anything other than a
mandatory minimum sentence. Compare Me. Rev. Stat. Ann. tit. 29,

1312 (1987) with Me. Rev. Stat. Ann. tit. 29, 1312(2) (Supp.

1985-86).

Unlike the defendant in Smith, 940 F.2d at 715 (rejecting

entrapment-by-estoppel claim), there is no suggestion that
Roberts had any knowledge that the "no-test" option tendered by

the arresting officer was punishable by a mandatory term of
confinement. The Smith court reasoned that an alleged "mixed

message" from a police officer "could not have reasonably invited
[the defendant's] reliance. . ." because it was never claimed
that the officer informed Smith that his conduct was lawful. Id.

at 715. In the present case, however, reliance upon the
deceptive advisory was plainly reasonable. The alternative
conclusion would be either that the information actually provided
the suspect at the scene is immaterial, but see id., or that

constructive notice of the statutory language trumps the
knowledge actually acquired by the suspect from the police
officer at the scene. But see Raley, 360 U.S. at 438-39.

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test" option with the implicit assurance that "the consequences"

for refusing chemical testing are noncriminal in nature, see

supra pp. 29-30, the standard advisory seems well suited to snare

even the most wary suspect. After all, rarely in the experience

of courts, let alone ordinary citizens, are law enforcement

officers cast as exclusive advisors to custodial suspects

concerning a state-tendered option not to perform an implied

duty, and then instructed to warn individual suspects of the

noncriminal sanctions for abjuring their duty, without mentioning

the criminal consequences. Under no natural interpretation of

the standard advisory is it fair to say that a suspect is

afforded meaningful pre-refusal notice of the mandatory minimum

sentence.14 See Raley, 360 U.S. at 438-39; cf. Reich v.

Collins, 115 S. Ct. 547, 550-51 (1994) (denial of procedural due

process results where statute, naturally read, allowed citizen

choice between predeprivation or postdeprivation challenge to tax

assessment, but state supreme court disallowed postdeprivation

review after citizen had elected to prepay tax assessment). A

coordinate procedural safeguard under the Due Process Clause

dictates that any opportunity to be heard shall be provided "at a

meaningful time and in a meaningful manner." Armstrong, 380 U.S.

14 Moreover, under the rule of lenity, any ambiguity in the
standard "implied consent" advisory must be resolved in favor of
the accused. See United States v. Kozminski, 487 U.S. 931, 952

(1988) (identifying purposes underlying rule of lenity as: the
promotion of fair notice "to those subject to the criminal laws,
minimiz[ing] the risk of selective or arbitrary enforcement, and
. . . maintain[ing] the proper balance between [the legislature],
prosecutors and courts. . . ."

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at 552. As there is no meaningful post-refusal opportunity to be

heard on the imposition of the mandatory minimum sentence under

section 1312, and no suggestion that the state sentencing court

contemplated a two-day term of confinement irrespective of the

mandated minimum imposed pursuant to section 1312-B(2)(B)(4), I

can only conclude that the process accorded Roberts violated

fundamental notions of procedural due process.15

Finally, the analyses contemplated by the Supreme Court

in Mathews, 424 U.S. at 335, clearly indicate that all

appropriate process can be accorded under section 1312 simply by

adding a few words to the standard "implied consent" advisory.

(i) The Private Interest
(i) The Private Interest

The core liberty interest Roberts asserts in remaining

free from incarceration is entitled to full procedural due

process protection. See Board of Regents v. Roth, 408 U.S. 564,

571-72 (1972); Bouie, 378 U.S. at 362 (overturning criminal

15 It is neither plausible to suggest, nor discernible from the
record, that the mandatory minimum term of confinement was
imposed simply as punishment for the underlying OUI offense.
First, the mandatory minimum sentence was not preordained by the
OUI conviction but by the unwarned refusal to submit to testing
in the moments following the arrest. Although it is
preconditioned on an OUI conviction, all meaningful discretion on
the part of the sentencing court is withdrawn as an unwarned
consequence of the defendant's noncriminal refusal to submit to
testing. Second, no mitigating circumstances, either in relation
to the refusal to be tested or the commission of the underlying
offense, can enable the court to sentence below the mandatory
minimum. Third, the statutory description of the mandatory
minimum sentence for refusing testing as an "aggravating
factor," see 1312-B(2) ("refusal to submit to a chemical test

shall in every case be an aggravating factor") is itself a
misleading euphemism for what is in reality a conclusive sentenc-

ing mandate which the court is required not merely to consider

but to impose without regard to any mitigating circumstance.

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conviction obtained through procedural due process violation);

Wright, 373 U.S. at 287 (same).

(ii) The Risk of Erroneous Deprivation
(ii) The Risk of Erroneous Deprivation

The risk that an erroneous deprivation of liberty will

occur is roughly commensurate with the relevance the unwarned

consequence bears to the decision to refuse testing. The

unwarned mandatory term of confinement the most serious

consequence surely bears great relevance to the "no-test"

decision; even a presumptively determinative relevance in the

present circumstances.

Significant derivative risks attach to the inaccurate

advisory as well. No doubt there are many first-time OUI

suspects with neither the knowledge nor the experience to assess

whether their blood-alcohol content exceeds the prima facie

intoxication level prescribed by statute. For such suspects, at

least, it cannot be claimed that an accurate advisory on the

mandatory minimum term of confinement attendant upon a refusal to

submit to testing would not materially influence their decision.

Thus, the deceptive "implied consent" advisory not only risks

erroneous conviction (e.g., as a consequence of allowing an

unwarned refusal in evidence where chemical testing may have

revealed a blood-alcohol content below the prima facie level) but

a sentence more severe than would have been imposed by the court

but for the suspect's unwarned refusal to be tested (e.g., where

reliable test results would have disclosed a blood-alcohol

content below the prima facie intoxication level).

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The undeniable value of a ready alternative to the

deceptive advisory is obvious. The legitimate interests of the

State, as well as the accused, would be significantly advanced by

the simple inclusion of a straightforward warning that a first-

time refusal to submit to chemical testing must be followed by a

minimum term of confinement upon conviction for operating a motor

vehicle while under the influence of alcohol or drugs. The State

would advance its prospects for obtaining the most reliable

evidence of intoxication the suspect's blood-alcohol level,

see Mackey, 443 U.S. at 19 (characterizing "chemical test"

results as "the most reliable form of evidence of intoxication

for use in subsequent proceedings.) while the suspect in

custody would receive full, fair, and timely notice of the

relevant options and their consequences.

(iii) Governmental Interests
(iii) Governmental Interests

Lastly, the governmental interests at stake, and the

administrative and fiscal burdens attendant to any additional

procedural safeguard, must be considered. See Mathews, 424 U.S.

at 347-48. Although the police power is among the least

limitable, Lambert, 355 U.S. at 228, the State of Maine points to

no governmental interest in omitting mention of the mandatory

minimum sentence in its standard advisory. Indeed, it is

difficult to posit a legitimate governmental interest served by

implicitly misleading OUI suspects into refusing to be tested.

Rather, the State's legitimate interest in obtaining the most

reliable evidence of intoxication, through the voluntary

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cooperation of OUI suspects, is better served by advising the

suspect of all sanctions for refusing testing.

The State has a paramount interest in minimizing any

pre-testing delay which might render chemical-test results

unreliable. See Schmerber, 384 U.S. at 770-71. In all likeli-

hood, however, a simple, straightforward amendment to the

standard advisory would expedite chemical testing; certainly, it

would not delay it.16 And the effort to eradicate the tragic

consequences of drunken driving on Maine highways would be

advanced thereby, rather than hindered.

The ease with which an alternative procedure can be

implemented likewise weighs heavily in favor of an amendment to

the standard advisory, see Mathews, 424 U.S. at 348 ("At some

point the benefit of an additional safeguard to the individual .

. . may be outweighed by the cost."), especially since it would

occasion neither pre-testing delay nor significant expense.

As the mandatory minimum sentence was imposed in

violation of the Due Process Clause, I agree that the writ should

enter in the event the State of Maine does not vacate the

mandatory minimum sentence and afford petitioner a meaningful

16 The majority opinion persuasively demonstrates that no Sixth
Amendment right to counsel arose until well after Roberts refused
to be tested. But though I share the view that Roberts was not
accorded the process due when confronted with the choice whether
to submit to chemical testing, I am unable to agree with the
court that he was entitled to the assistance of counsel at that
time, as distinguished from appropriate notice of the

consequences of refusing.

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sentencing hearing at which section 1312-B(2)(B)(4) is not

applied.

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