MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 85
Docket: Ken-16-503
Argued: May 12, 2017
Decided: July 3, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, and HUMPHREY, JJ.
Dissent: GORMAN, J., with whom JABAR, J., joins, and HJELM, J., joins in part.
Dissent: JABAR, J.
Dissent: HJELM, J.
STATE OF MAINE
v.
LYANNE LEMEUNIER-FITZGERALD
SAUFLEY, C.J.
[¶1] This appeal requires us to determine whether evidence obtained
from a warrantless blood-alcohol test, taken upon probable cause to believe
that a driver’s ability to operate a motor vehicle was impaired by intoxicants,
falls within the consent exception to the warrant requirement if the suspect
agrees to the blood draw following the standard explanation of the implied
consent warnings. In this evolving area of Fourth Amendment jurisprudence,
2
we conclude that the operator consented to the blood test, and we affirm the
denial of the motion to suppress.1
I. BACKGROUND
[¶2] Lyanne LeMeunier-Fitzgerald appeals from a judgment of
conviction entered by the trial court (Kennebec County, Mullen, J.) upon her
conditional guilty plea to charges of operating under the influence (Class C),
29-A M.R.S. § 2411(1-A)(B)(2), (5)(C) (2017), and operating beyond a license
condition or restriction (Class E), 29-A M.R.S. § 1251(1)(B) (2017), entered
after the court (Marden, J.) denied her motion to suppress the results of a blood
test for alcohol. She challenges the court’s determination that she voluntarily
consented to the blood test after she was warned by the arresting officer that
there were potential consequences if she refused to consent.
[¶3] The operative facts, most of which were found upon the parties’
stipulation and none of which are disputed on appeal, are as follows. On
December 21, 2015, an Augusta police officer suspected that
LeMeunier-Fitzgerald was operating under the influence of an intoxicant after
observing her in a supermarket parking lot. Her vehicle was partially pulled
1 Because we conclude that the court properly denied LeMeunier-Fitzgerald’s motion to suppress,
we do not reach the State’s argument that suppression of the test results was not required because
the officer was acting in “good faith reliance on existing law.”
3
out of a parking space, her eyes were glassy, and she smelled of alcohol. When
the officer approached and questioned her, she grabbed a bottle of pills and
poured them into her mouth. The officer placed her in handcuffs and called for
a rescue team. When the rescue team arrived, the handcuffs were removed and
LeMeunier-Fitzgerald was taken to the hospital.
[¶4] After hospital personnel had attended to LeMeunier-Fitzgerald and
had placed her in a room, the officer met with her. The officer informed her
that he suspected that she had been attempting to operate a motor vehicle
while under the influence of intoxicants, and he read Maine’s “implied consent”
warnings to her verbatim from a form provided by the Secretary of State’s
Bureau of Motor Vehicles. See 29-A M.R.S. § 2521 (2017). Included was the
warning, “If you are convicted of operating while under the influence of
intoxicating liquor or drugs, your failure to submit to a chemical test will be
considered an aggravating factor at sentencing which in addition to other
penalties, will subject you to a mandatory minimum period of incarceration.”
LeMeunier-Fitzgerald agreed to submit to the blood test, and a blood sample
was taken from her without a warrant.
[¶5] LeMeunier-Fitzgerald was charged by complaint, and she was later
indicted, for operating under the influence (Class C), 29-A M.R.S.
4
§ 2411(1-A)(B)(2), and operating beyond a license condition or restriction
(Class E), 29-A M.R.S. § 1251(1)(B). She moved to suppress the blood test
results as having been procured without a warrant and without voluntary
consent, in violation of the Fourth Amendment to the United States
Constitution. The court held a hearing on the motion to suppress on
July 26, 2016. The parties stipulated that (1) the officer had probable cause to
believe that LeMeunier-Fitzgerald was operating while under the influence of
an intoxicant, (2) her blood was drawn without a search warrant, and (3) there
were no exigent circumstances. The court then heard brief testimony from the
officer who had taken LeMeunier-Fitzgerald into custody. For purposes of the
motion, that testimony was not disputed by LeMeunier-Fitzgerald.
[¶6] The court denied the motion to suppress, reasoning that, unlike the
situation that the United States Supreme Court recently addressed in Birchfield
v. North Dakota, LeMeunier-Fitzgerald did not submit to the blood testing “on
pain of committing a criminal offense.” 579 U.S. ---, 136 S. Ct. 2160, 2186
(2016). The court concluded that the heightened minimum penalties, including
a mandatory minimum period of incarceration, that may be imposed on a
person who refuses to submit to testing if convicted of OUI were not equivalent
5
to an independent criminal offense for refusal as described in Birchfield.
579 U.S. at ---, 136 S. Ct. at 2169-70, 2186.
[¶7] LeMeunier-Fitzgerald entered a conditional guilty plea, preserving
her right to appeal from the ruling on the motion to suppress, and the court
(Mullen, J.) sentenced her to three years in prison, with all but forty-five days
suspended,2 and two years of probation for the OUI conviction and forty-five
days in prison, to run concurrently, for the conviction of operating beyond a
license condition or restriction. The court also imposed fines and surcharges
amounting to $1,405.
[¶8] LeMeunier-Fitzgerald timely appealed. See 15 M.R.S. § 2115 (2017);
M.R. App. P. 2(b)(2)(A) (Tower 2016).3 She argues that the blood test violated
the Fourth Amendment’s protection against unreasonable searches and
seizures because it was taken without a warrant and her consent to the test was
rendered involuntary by the warning of an increased minimum sentence if she
refused to consent and was then convicted.
2 LeMeunier-Fitzgerald had apparently been convicted of OUI on previous occasions.
3 The appeal was commenced before the restyled Maine Rules of Appellate Procedure took effect.
See M.R. App. P. 1 (providing that the restyled rules are effective for “appeals in which the notice of
appeal is filed on or after September 1, 2017”).
6
II. DISCUSSION
[¶9] We anchor our analysis in the language of the United States
Constitution. “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.” U.S. Const. amend. IV. There is no question
that strictures of the Fourth Amendment apply to searches in the form of blood
tests. See Schmerber v. California, 384 U.S. 757, 767-72 (1966). The question is
how those strictures apply here.
[¶10] In recent years, courts across the country have been challenged to
find an appropriate balance between a defendant’s right to be free from
“unreasonable” searches of their blood for its alcohol content and the State’s
interest in addressing the public safety crisis resulting from impaired drivers
causing death and destruction on America’s roads.4 U.S. Const. amend. IV. We
endeavor here to assure that the constitution’s prohibition against
unreasonable searches and seizures is given full force, with the required
4 See, e.g., Missouri v. McNeely, 569 U.S. 141, 159-63 (2013); Mich. Dep’t of State Police v. Sitz,
496 U.S. 444, 451-55 (1990); United States v. Brock, 632 F.3d 999, 1002-03 (7th Cir. 2011); see also
State v. Boyd, 2017 ME 36, ¶¶ 8-15, 156 A.3d 748; State v. Arndt, 2016 ME 31, ¶¶ 5-11, 133 A.3d 587.
7
determination of reasonableness informed by a full consideration of urgent
public safety considerations.5 In this opinion, we (A) summarize the Fourth
Amendment jurisprudence regarding searches undertaken for purposes of
blood-alcohol testing; (B) review the statutory basis for providing warnings
about the legal consequences of a refusal to submit to testing; and (C) consider
the legal question of whether a driver who consents to a blood draw after
receiving such warnings has voluntarily consented, recognizing, as the First
Circuit has eloquently explained, that a defendant’s consent that has been
“pried loose by . . . a claim of authority is merely acquiescence.” United States v.
Vazquez, 724 F.3d 15, 23 (1st Cir. 2013).
A. Alcohol Testing and the Fourth Amendment
[¶11] We begin with the bedrock understanding that the withdrawal of
a blood sample from the veins or arteries of a human being for blood-alcohol
testing is a “search” falling within the protection of the Fourth Amendment. See
Birchfield, 579 U.S. at ---, 136 S. Ct. at 2173; Schmerber, 384 U.S. at 767; State v.
Boyd, 2017 ME 36, ¶ 8, 156 A.3d 748; State v. Arndt, 2016 ME 31, ¶ 8,
5 The National Highway Traffic Safety Administration reports that, in 2016, 10,497 people died in
traffic accidents involving at least one driver with a blood-alcohol content of .08 grams per deciliter
or more. Nat’l Highway Traffic Safety Admin., Traffic Safety Facts: Alcohol Impaired Driving, DOT HS
812 450 at 2 (Oct. 2017). That is the highest reported number of fatalities since 2009. Id.
8
133 A.3d 587. The Fourth Amendment prohibits unreasonable searches, and
the procurement of a legitimate search warrant, with all that it entails, is
designed to ensure the reasonableness of a search. See Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 619, 622 (1989).
[¶12] As is also clear, however, there are “a few specifically established
and well-delineated exceptions” to the warrant requirement. Katz v. United
States, 389 U.S. 347, 357 (1967); see also Missouri v. McNeely, 569 U.S. 141,
148-49 (2013); Georgia v. Randolph, 547 U.S. 103, 109 (2006). “When faced
with special law enforcement needs, diminished expectations of privacy,
minimal intrusions, or the like, the [Supreme] Court has found that certain
general, or individual, circumstances may render a warrantless search or
seizure reasonable.” Illinois v. McArthur, 531 U.S. 326, 330 (2001); see, e.g.,
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (holding that a
warrantless search of an automobile is reasonable if the automobile is readily
mobile and the search is supported by probable cause); Mich. Dep’t of State
Police v. Sitz, 496 U.S. 444, 453-55 (1990) (holding that the use of a sobriety
checkpoint was reasonable when it was instituted based on objective indicia of
effectiveness).
9
[¶13] In addressing the reasonableness of searches aimed at detecting
impaired driving, the Supreme Court has held that a breath test measuring
blood-alcohol content is a search that does not require a warrant, consent, or
other exceptions, as long as there is probable cause to believe that the driver
was operating, or attempting to operate, a vehicle while under the influence.
See Birchfield, 579 U.S. at ---, 136 S. Ct. at 2184-85. The Court has reasoned that
a breath test is less intrusive than a blood test, and when balanced against the
law enforcement needs of keeping impaired drivers off the roads, it is
reasonable, even without a warrant, for a law enforcement officer to require a
driver to submit to a breath test if probable cause exists. See id.
[¶14] Because it is more intrusive, however, a warrantless blood draw
cannot be justified as a search incident to an arrest for OUI. Id. at 2185. Thus,
some other exception to the warrant requirement is necessary to establish the
reasonableness of the blood draw to test for alcohol.
[¶15] The parties have agreed that the consent exception is the only
exception at issue on appeal.6 The question before us concerns whether, given
6 The State did not argue that exigent circumstances justified the blood draw. As the United States
Supreme Court has held, the natural dissipation of alcohol in a suspect’s blood does not categorically
support a finding of exigent circumstances, and more than the mere fact that alcohol dissipates over
time is required to establish such an exigency. McNeely, 569 U.S. 141, 156 (2013); Arndt, 2016 ME 31,
¶ 10, 133 A.3d 587. In the matter before us, exigent circumstances may have arisen due to the
possible unavailability of a breathalyzer at the hospital, LeMeunier-Fitzgerald’s observed
consumption of a bottle’s worth of pills when the officer approached her in the parking lot, and the
10
the need to prevent drivers from operating vehicles while under the influence
of intoxicants, it is reasonable to draw a driver’s blood without procuring a
warrant when the driver has consented to a blood test after being read Maine’s
statutory warnings about the consequences of refusing to submit to testing.
B. The Duty to Submit to Testing and Warnings of the Consequences of
Refusing to Submit
[¶16] Due to concerns about deaths and injuries resulting from drunk
driving, States have adopted laws designed to ensure the testing of
blood-alcohol levels through breath or blood tests, predominantly through
statutes providing that drivers “imply” their consent to testing by operating
vehicles on the roads. See Birchfield, 579 U.S. at ---, 136 S. Ct. at 2166, 2168-69.
The Maine Legislature enacted its “implied consent” law to take effect on
October 1, 1969. P.L. 1969, ch. 439, § 1 (codified at 29 M.R.S.A. § 1312 (Supp.
1970)). That statute provided that any person operating or attempting to
operate a motor vehicle in Maine who had been arrested for operating while
potential dissipation of the evidence through treatment at the hospital. See Birchfield v. North Dakota,
579 U.S. at ---, 136 S. Ct. 2160, 2184 (2016) (stating that “[o]ne advantage of blood tests is their ability
to detect not just alcohol but also other substances that can impair a driver’s ability to operate a car
safely,” and indicating that police may rely on the exigent circumstances exception to the warrant
requirement if there is insufficient time to seek a warrant in such circumstances). Nonetheless, the
State did not assert exigency, it did not present evidence upon which the court could have reached
findings and analyzed that exception, and we do not address the exception further.
11
intoxicated would “be deemed to have given consent to a chemical test of the
blood alcohol level of his blood or urine.” Id.
[¶17] More than a decade later, in response to our decision interpreting
the “implied consent” statute, State v. Plante, 417 A.2d 991 (Me. 1980),7 the
Legislature amended the statute, eliminating the presumption of consent upon
operation of a vehicle and establishing a duty to submit to testing. See P.L. 1981,
ch. 679, § 12 (effective April 15, 1982) (codified at 29 M.R.S.A. § 1312 (Supp.
1982)). The present statute, 29-A M.R.S. § 2521(1) (2017), which was in effect
when LeMeunier-Fitzgerald’s blood was drawn, provides, “If there is probable
cause to believe a person has operated a motor vehicle while under the
influence of intoxicants, that person shall submit to and complete a test to
determine an alcohol level and the presence of a drug or drug metabolite by
analysis of blood, breath or urine.” (Emphasis added.) The statute provides for
the administration of a breath test “unless, in th[e] officer’s determination, a
breath test is unreasonable,” in which case “another chemical test must be
administered in place of a breath test.” Id. § 2521(2).
7 There, we interpreted the statute to provide that a person had a duty to submit to testing and
had “the power—though not the right—to refuse to perform that duty.” State v. Plante, 417 A.2d 991,
993 (Me. 1980).
12
[¶18] Thus, although Maine’s chemical testing statute bears the title
“Implied consent to chemical tests,” the statute “no longer provides that a
person will be ‘deemed’ to have consented to testing by operating a motor
vehicle on Maine’s roads.” Boyd, 2017 ME 36, ¶ 13, 156 A.3d 748. The statute
was amended to impose on a driver a duty to submit to testing when there is
probable cause to believe that the driver has operated a motor vehicle while
under the influence. Id. Accordingly, we refer to the statute as the
“duty-to-submit” statute and clarify that LeMeunier-Fitzgerald did not, by
operation of her vehicle, “imply” that she consented to chemical testing.
[¶19] The duty to submit does not, however, create a statutory mandate
to submit to testing. Rather, it provides specific consequences for a driver’s
decision not to comply with that duty. See 29-A M.R.S. § 2521(3), (5), (6)
(2017). In order for the consequences of refusal to apply, the driver must have
been provided with a direct and clear explanation of those consequences. See
id. § 2521(3).
[¶20] The specific question before us concerns the voluntariness of
LeMeunier-Fitzgerald’s verbal consent given after receiving warnings of the
consequences of refusing, despite the existence of probable cause, to submit to
testing. With respect to such warnings, the statute provides:
13
Neither a refusal to submit to a test nor a failure to complete a test
may be used for any of the purposes specified in paragraph A, B or
C unless the person has first been told that the refusal or failure
will:
A. Result in suspension of that person’s driver’s license for a
period up to 6 years;
B. Be admissible in evidence at a trial for operating under the
influence of intoxicants; and
C. Be considered an aggravating factor at sentencing if the
person is convicted of operating under the influence of
intoxicants that, in addition to other penalties, will subject
the person to a mandatory minimum period of incarceration.
Id. § 2521(3). Thus, if a driver has first been warned of the statutory
consequences, the driver’s refusal to comply with the statutory duty to submit
can result in (A) up to six years’ suspension of the driver’s license; (B) the
admission at trial of the driver’s refusal to submit to testing; and (C) increased
minimum penalties if the driver is convicted of OUI, including a mandatory
minimum period of incarceration. See id. § 2521(3), (5), (6); see also 29-A M.R.S.
§ 2411(5)(A)(1), (A)(3)(b), (B)(1), (B)(2), (C)(1), (C)(2), (D)(1), (D)(2) (2017).
We now consider whether this statutory scheme imposes unconstitutionally
coercive consequences for refusing to submit to testing, such that the warning
of those consequences could have undermined the voluntariness of
14
LeMeunier-Fitzgerald’s consent. See Birchfield, 579 U.S. at ---, 136 U.S. at
2184-85.
C. Voluntariness of Consent after Statutory Warnings
[¶21] Even in the absence of a warrant, a search is reasonable—and the
evidence obtained is admissible—if a person voluntarily consents to the search.
See Randolph, 547 U.S. at 109; Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973); State v. Cress, 576 A.2d 1366, 1367 (Me. 1990). When a defendant
moves to suppress evidence obtained without a warrant and the State asserts
that no warrant was required because the suspect consented to the search, it is
the State’s burden to prove, “by a preponderance of the evidence, that an
objective manifestation of consent was given by word or gesture.” State v.
Bailey, 2012 ME 55, ¶ 16, 41 A.3d 535 (quotation marks omitted).
[¶22] The question of voluntariness is “‘determined from the totality of
all the circumstances.’” Birchfield, 579 U.S. ---, 136 S. Ct. at 2186 (quoting
Schneckloth, 412 U.S. at 227). A search is unreasonable if a person’s consent to
the search was “coerced, by explicit or implicit means, by implied threat or
covert force” or duress, or was induced by “deceit, trickery, or
misrepresentation.” Schneckloth, 412 U.S. at 228; State v. Barlow, 320 A.2d 895,
900 (Me. 1974); see State v. Koucoules, 343 A.2d 860, 873 (Me. 1974).
15
[¶23] The circumstances under which LeMeunier-Fitzgerald agreed to
submit to a blood test are undisputed; the parties’ disagreement centers on the
effect of the warnings on the voluntariness of her consent.8 In the absence of
any factual dispute, “we review de novo the motion court’s ruling on
suppression.” State v. Tozier, 2006 ME 105, ¶ 6, 905 A.2d 836.
[¶24] To address the legal issue presented, we must determine whether
the consent exception to the warrant requirement applies to a defendant who
gave her consent upon receiving the specific statutory warnings at issue here.9
8 On an appeal from a denial of a motion to suppress, we review any disputes about the court’s
findings for clear error and the ultimate question of whether the facts establish an individual’s
consent de novo. See State v. Nadeau, 2010 ME 71, ¶ 18, 1 A.3d 445. Here, the facts found by the
court are not in dispute: the “officer had probable cause to believe that [LeMeunier-Fitzgerald] was
operating a motor vehicle while under the influence of an intoxicant”; in the hospital, while in police
custody, she “agreed to submit to a blood test after being read the Maine implied consent law”; “a
blood sample was taken without a warrant[;] and there were no exigent circumstances.” Thus, we
are in a position to review a straightforward legal issue based on an officer acting in accordance with
the statute governing the warnings and are not required to remand the matter for the court to reach
findings about disputed key facts. See State v. Clay, 793 S.E.2d 636, 639 (Ga. Ct. App. 2016) (stating
that a defendant’s affirmative response to statutory warnings “may itself be sufficient evidence of
actual and voluntary consent, absent reason to believe the response was involuntary” (quotation
marks omitted)); cf. United States v. Hutchinson, No. 2:16-CR-168-DBH, 2018 U.S. Dist. LEXIS 7180, at
*16-19 (D. Me. Jan. 17, 2018) (reaching findings after three witnesses testified differently about what
happened when the defendant’s blood was drawn); Espinoza v. Shiomoto, 215 Cal. Rptr. 3d 807,
823-34 (Cal. Ct. App. 2017) (reviewing whether a driver voluntarily consented to testing, or instead
refused testing, when she conditioned her consent on the police obtaining a warrant and no warrant
was obtained); Boyd, 2017 ME 36, 156 A.3d 748 (reviewing the voluntariness of consent when no
warnings were read); State v. Blackman, 898 N.W.2d 774, 778, 781-89 (Wis. 2017) (reviewing
whether a driver voluntarily consented when the form that the officer read misstated the legal
consequences of refusal for the driver at issue).
9 In contrast to the facts presented in a case recently decided by United States District Court Judge
D. Brock Hornby, the officer here did not misrepresent the law to the defendant. See Hutchinson,
2018 U.S. Dist. LEXIS 7180, at *20-21. LeMeunier-Fitzgerald was informed that her refusal would
have consequences, but she was not told that she had no choice in the matter. Id. at *5.
16
If the imposition of a minimum mandatory sentence upon a driver’s conviction
of OUI after refusing testing is unconstitutionally coercive, the warning of that
possible consequence throws into question the voluntariness of consent. See
Birchfield, 579 U.S. ---, 136 S. Ct. at 2186 (remanding for the state court to
determine whether a suspect’s consent to a blood test was voluntary when he
consented only after police erroneously told him that the law required him to
submit or face prosecution for the crime of refusal); see also Barlow, 320 A.2d
at 900.
[¶25] Unlike the North Dakota statute reviewed in Birchfield, Maine’s
statute includes no threat of a separate, independent criminal charge for
refusing to submit to testing. Cf. Birchfield, 579 U.S. at ---, 136 S. Ct. at 2169-70.
Nor does the refusal to submit expose the driver to any additional threat of
immediate incarceration. See 29-A M.R.S. § 2521(3). Instead, the statutory
warnings make the driver aware that a choice must be made, and they inform
the driver of the potential consequences of refusing to comply with the duty to
submit to testing. See id.; see also Commonwealth v. Myers, 164 A.3d 1162, 1164
(Pa. 2017) (stating that a statutory warning of the possible consequences of
refusing blood testing informed the driver of the right to refuse); cf. Olevik v.
State, 806 S.E.2d 505, 521-22 (Ga. 2017) (same, in a breath testing case).
17
[¶26] The possible consequences conveyed in those warnings relate to
licensing, the admissibility of the refusal in evidence at trial, and increased
minimum penalties for purposes of a court’s sentencing if the driver is
convicted of OUI. See 29-A M.R.S. § 2521(3). As the Supreme Court has
previously determined, neither the threat of evidentiary use of the refusal nor
the threat of license suspension renders the consent involuntary. See Birchfield,
579 U.S. at ---, 136 S. Ct. at 2185 (referring “approvingly to the general concept
of implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply”); McNeely, 569 U.S. at 161;
see also South Dakota v. Neville, 459 U.S. 553, 559-60, 564-66 (1983) (holding
that a license suspension for refusing a blood-alcohol test is “unquestionably
legitimate” and that the admission of a suspect’s refusal to take a blood-alcohol
test violates neither the privilege against self-incrimination nor the suspect’s
right to due process).10 The question then is whether the additional threat of a
mandatory minimum sentence is unconstitutionally coercive and renders the
consent involuntary.
10 See also Mackey v. Montrym, 443 U.S. 1, 19 (1979) (“[T]he compelling interest in highway safety
justifies the Commonwealth in making a summary suspension effective pending the outcome of the
prompt postsuspension hearing available.”).
18
[¶27] The Court’s statement in Birchfield that “motorists cannot be
deemed to have consented to submit to a blood test on pain of committing a
criminal offense” specifically addressed true implied consent statutes that
deem a motorist to have consented to chemical testing in advance and provide
that the failure to consent constitutes a crime in itself. Birchfield, 579 U.S. ---,
136 S. Ct. at 2186. Whether a statute deems a driver to have consented or, as in
Maine, imposes a duty to submit to testing, the coercive effect is the same if the
statute punishes the refusal to submit to testing with a criminal offense.
Accordingly, if Maine’s statutes imposed a duty to submit to a blood test “on
pain of committing a criminal offense,” an officer’s warning that it is a crime to
refuse would be unconstitutionally coercive and could, in the totality of the
circumstances, undermine the voluntariness of the driver’s consent. See id.
[¶28] Maine’s statutes do not, however, have this effect. In Maine, a
driver’s refusal to comply with the statutory duty to submit to a blood test upon
probable cause will result in an enhanced penalty, one that is well within the
statutory maximum for any person charged with OUI, only if the driver is
ultimately convicted of OUI after that refusal. See 29-A M.R.S. §§ 2411(5)(A)(1),
(A)(3)(b), (B)(1), (B)(2), (C)(1), (C)(2), (D)(1), (D)(2), 2521(3). To illustrate, if
the defendant who submits to testing has had no prior OUI convictions within
19
the previous ten years and no other penalty-enhancing facts are present, an OUI
offense is a Class D crime, which is punishable by imprisonment for up to 364
days and a fine of $500 to $2,000, and there is no mandatory minimum period
of incarceration. 17-A M.R.S. §§ 1252(2)(D), 1253(2-A)(D), 1301(1-A)(D)
(2017); 29-A M.R.S. § 2411(5)(A) (2017). If that same defendant is instead
convicted of OUI after “fail[ing] to submit to a test at the request of a law
enforcement officer,” the upper limit of potential imprisonment provided by
statute remains exactly the same—up to 364 days—but the period of
imprisonment must be at least “96 hours.” 29-A M.R.S. § 2411(5)(A)(3)(b).
Similarly, the maximum possible fine is unaffected, though a person who has
“failed to submit to a test” is subject to a fine of at least $600. Id.
§ 2411(5)(A)(1).
[¶29] Under no circumstances, however, does the statute increase the
level of the offense or otherwise increase the range beyond the maximum
period of imprisonment or the maximum fine that may be imposed for the
applicable class of the offense. See 29-A M.R.S. § 2521(3)(C); see also
17-A M.R.S. § 1252(2) (establishing the maximum period of incarceration for
each class of crime); 17-A M.R.S. § 1301(1-A) (2017) (establishing the
maximum fine that may be imposed for each class of crime). Furthermore, in
20
an individual case, the refusal to submit might not, practically speaking, result
in any demonstrable increase in punishment whatsoever because a court may
impose a sentence at or above the statutory minimum for any conviction of the
charged OUI offense.
[¶30] Because the mandatory minimum sentence applies only upon an
OUI conviction and the statute does not criminalize the mere act of refusing to
submit to a blood test, and because it does not increase a driver’s maximum
exposure to a fine or sentence of imprisonment, the statute’s setting of a
mandatory minimum sentence if a driver is convicted of OUI after refusing to
submit to a blood test despite probable cause is not a “criminal penalt[y] on the
refusal to submit to such a test” within the meaning of Birchfield. 579 U.S. ---,
136 S. Ct. at 2185. Although there is a “limit to the consequences to which
motorists may be deemed to have consented by virtue of a decision to drive on
public roads,” see id., that limit is not exceeded where the consequence is only
the risk of an increased minimum penalty if a driver, having received warnings
of the consequences of a refusal, declines to submit to blood testing and is
ultimately convicted of OUI, see 29-A M.R.S. § 2521(1), (3); see also 29-A M.R.S.
§ 2411(5).
21
[¶31] In sum, when probable cause exists, a warrantless blood test is not
unreasonable when a driver has consented to testing after being warned that
the lower limit of a court’s sentencing range will increase if the driver refuses
to submit to testing and is ultimately convicted of OUI. Cf. Birchfield, 579 U.S.
at ---, 136 S. Ct. at 2185-86. The warnings given based on the statute are legally
sound and not misleading. See Barlow, 320 A.2d at 900; cf. Birchfield, 579 U.S.
at ---, 136 S. Ct. at 2185-86. Put another way, a consent given in response to the
Maine warnings does not represent mere “acquiescence.” Vazquez, 724 F.3d
at 23.
[¶32] Here, LeMeunier-Fitzgerald was accurately warned by the
arresting officer in the hospital that she had a duty to submit to chemical tests
and that she would be lawfully subject to a mandatory minimum at sentencing
if convicted of OUI after refusing to submit. The warnings informed
LeMeunier-Fitzgerald of the other statutory consequences that would arise if
she refused to submit to the test despite her duty to do so. See Birchfield,
579 U.S. ---, 136 S. Ct. at 2185. The warnings did not constitute any form of
deceit, misrepresentation, or trickery. See Barlow, 320 A.2d at 900. Her refusal
did not give rise to a separate criminal charge. Cf. Birchfield, 579 U.S. ---, 136
S. Ct. at 2186. After receiving the information, LeMeunier-Fitzgerald expressly
22
agreed to undergo the blood test. The court did not err in concluding, in the
undisputed totality of the circumstances, that LeMeunier-Fitzgerald’s consent
was voluntary and not induced by unconstitutional coercion or
misrepresentation, and therefore the court properly denied her motion to
suppress. See Schneckloth, 412 U.S. at 228; Barlow, 320 A.2d at 900; see also
Tozier, 2006 ME 105, ¶ 6, 905 A.2d 836.
The entry is:
Judgment affirmed.
GORMAN, J., with whom JABAR, J., joins and HJELM, J., joins in part, dissenting.
[¶33] Today, the Court has concluded that, despite the explicit and
implicit coercive threats found in Maine’s duty-to-submit statute, Lyanne
LeMeunier-Fitzgerald’s “consent” to having blood drawn was voluntary. I
respectfully dissent.
[¶34] Consent, like all exceptions to the requirement of a warrant, must
be narrowly construed. State v. Sargent, 2009 ME 125, ¶ 10, 984 A.2d 831. We
have long held that consent is effective in a Fourth Amendment analysis only
when it is “freely and voluntarily given” without either “implied threat or covert
force.” State v. McLain, 367 A.2d 213, 216-17 (Me. 1976). Consent induced by
23
“deceit, trickery or misrepresentation” or “physical violence or threats” cannot
be said to have been given voluntarily. State v. Barlow, 320 A.2d 895, 900
(Me. 1974). I believe that the Court errs in determining that
LeMeunier-Fitzgerald’s consent to having her blood drawn was “freely and
voluntarily given,” as the Fourth Amendment demands. McLain, 367 A.2d at
216-17.
[¶35] In Birchfield v. North Dakota, the United States Supreme Court
considered consent within the intersection of state “implied-consent laws” and
the Fourth Amendment’s prohibition on unreasonable searches and seizures.
579 U.S. ---, 136 S. Ct. 2160, 2176-78, 2184-85 (2016). Birchfield involved three
factual scenarios. Id. at 2170-72. In the two scenarios involving blood tests,11
defendants Danny Birchfield and Steve Beylund were, in separate incidents,
arrested in North Dakota for driving while impaired. Id. at 2170-72. After
arrest, each was asked to submit to a warrantless blood test to determine his
degree of impairment. Id. Birchfield refused to submit to the test; was charged
with and convicted of that refusal; and, as a result of a conditional plea,
appealed that criminal conviction. Id. at 2170-71. Beylund agreed to submit to
11 The third factual scenario involved a breath test rather than a blood test, and it is therefore
distinguishable on that basis. Birchfield v. North Dakota, 579 U.S. ---, 136 S. Ct. 2160, 2171, 2176-78,
2186 (2016); State v. Boyd, 2017 ME 36, ¶ 8, 156 A.3d 748.
24
the test and, after an administrative hearing, he was fined and his license to
operate motor vehicles was revoked for two years based on the results of the
blood test. Id. at 2172, 2186. Beylund appealed that administrative decision.
Id. at 2172. The North Dakota Supreme Court affirmed both decisions, and the
United States Supreme Court agreed to consider Birchfield’s and Beylund’s
appeals in a consolidated argument. Id. at 2171-72.
[¶36] Both Birchfield and Beylund were informed that refusing to submit
to a blood test would expose them to criminal penalties. Id. at 2170, 2172.
Because Birchfield did not submit to the blood test, the voluntariness of a
consent to search was not at issue in his case; no search was completed because
no blood was drawn. Id. at 2170. Rather, Birchfield was convicted of the crime
of refusing to submit to the blood test based on North Dakota’s implied consent
statute in effect at the time.12 Id. at 2170-71; see N.D. Cent. Code Ann.
§§ 39-08-01(1)(e), (2)-(3), 39-20-01, 39-20-14 (LEXIS, 2013 N.D. Code
Archive). Holding that reasonableness—as “the touchstone of Fourth
Amendment analysis”—demands that “motorists cannot be deemed to have
12 At the time of Birchfield’s arrest in North Dakota, refusing to submit to blood alcohol testing
was itself a criminal offense for which the mandatory minimum sentence included a fine and
addiction treatment. N.D. Cent. Code Ann. § 39-08-01(1)(e), (2), (5)(a)(1) (LEXIS, 2013 N.D. Code
Archive). The relevant North Dakota statutes have since been amended in several respects. See N.D.
Cent. Code Ann. §§ 39-08-01, 39-20-01, 39-20-14 (LEXIS through 2017 Regular Legis. Session).
25
consented to submit to a blood test on pain of committing a criminal offense,”
the Supreme Court reversed Birchfield’s conviction for refusing the blood test.
Birchfield, 579 U.S. at ---, 136 S. Ct. at 2186.
[¶37] Beylund, in contrast, submitted to the blood draw; he was not
criminally prosecuted for his refusal, but he was fined and his driver’s license
was revoked for two years after an administrative hearing. Id. at 2172, 2186.
The Supreme Court noted that the violation of an implied consent statute could
be a basis for imposing civil penalties or evidentiary consequences on drivers
without running afoul of the Fourth Amendment.13 Id. at 2185. Even in the
context of an administrative matter, however, Beylund still enjoyed the
constitutional right to refuse to consent to a blood test, and his consent to such
a blood test was still effective only if voluntary; the results of Beylund’s blood
test would be inadmissible in the administrative proceeding if obtained without
consent. Id. at 2186 & n.9. The Supreme Court thus remanded the matter for
the trial court to reconsider whether Beylund’s submission to the blood test
13 The Supreme Court stated, “Petitioners do not question the constitutionality of those laws, and
nothing we say here should be read to cast doubt on them.” Birchfield, 579 U.S. at ---, 136 S. Ct. at
2185. LeMeunier-Fitzgerald has not presented any argument that either the suspension of her
license or the admission of evidence of her refusal against her at trial would violate the Fourth
Amendment.
26
was truly consensual, given that the police had incorrectly informed Beylund
that refusing the blood test was criminal. Id.
[¶38] I agree that Maine’s imposed sanctions for refusing to submit to a
blood draw are not precisely the same as those discussed in any of the three
cases comprising the Birchfield decision. See Court’s Opinion ¶ 25. In Maine,
refusal is an aggravating factor in the sentencing of a defendant convicted of
operating under the influence (OUI), 29-A M.R.S. §§ 2411(5), 2521 (2017),
whereas in North Dakota at the time of Birchfield’s and Beylund’s arrests,
refusal was an independent crime, N.D. Cent. Code Ann. § 39-08-01(1)(e), (2)
(LEXIS, 2013 N.D. Code Archive). I respectfully disagree, however, with the
Court’s attempt to distinguish the effect of the criminal penalties in Maine from
those addressed in North Dakota.
[¶39] In both states, an arrestee is persuaded to submit to a blood test
or else face criminal consequences beyond those for which she has already been
arrested. Indeed, a comparison of the two states’ statutes demonstrates that
although Maine does not have a separate crime for refusal, the potential
consequences to a defendant for a refusal are harsher—both generally and as
compared to a nonrefusal OUI conviction—in Maine than in North Dakota. By
North Dakota statute in 2013, a defendant was subject to exactly the same
27
criminal penalties for a first offense refusal as for a first offense OUI, that is, a
minimum fine of five hundred dollars and required addiction treatment.
N.D. Cent. Code Ann. §§ 39-08-01(1)(e), (2)-(3), (5)(a), 39-20-01(3) (LEXIS,
2013 N.D. Code Archive). The only difference between a conviction for OUI and
one for refusal was that those who were convicted of refusing a blood test were
also subject to a license revocation of between 180 days and 3 years. N.D. Cent.
Code Ann. § 39-20-01(3). Thus, whether convicted of OUI or refusal, a North
Dakota defendant was exposed to identical fine calculations and periods of
incarceration.
[¶40] In Maine, a first-offense OUI conviction carries a minimum
sentence of a $500 fine and a license suspension of 150 days.14 29-A M.R.S.
§ 2411(5)(A)(1)-(2). If a defendant is convicted of OUI and, as part of that
conviction, the State also proves that the defendant refused a breath or blood
test, the court must impose a minimum fine of $600, a minimum license
suspension of 275 days, and a minimum jail term of 96 hours. 29-A M.R.S.
§§ 2411(5)(A)(1), (3)(b), 2521(6). That means that each individual convicted
of OUI, when that conviction involves a refusal, receives a sentence that
14 A minimum period of incarceration of forty-eight hours is imposed for an OUI conviction if
certain aggravating factors are present. 29-A M.R.S. § 2411(5)(A)(3)(a) (2017).
28
involves an additional $100 in fines, a license suspension that is extended by
125 days, and a 4-day jail sentence. 29-A M.R.S. §§ 2411(5)(A)(1)-(3), 2521(6).
For defendants with prior offenses, the differences between an OUI and an OUI
with refusal become more significant—a $700 versus a $900 fine and seven
days in jail versus twelve days in jail as to a second offense; $1,100 versus
$1,400 and thirty days versus forty days for a third offense; and $2,100 versus
$2,500 and six months versus six months and twenty days for a fourth offense.
29-A M.R.S. § 2411(5)(B)(1)-(2), (C)(1)-(2), D(1)-(2).
[¶41] The Court concludes, however, that because the applicable class of
the offense is the same whether the defendant is convicted of OUI or OUI with
a refusal—and therefore the maximum sentences are identical—no
“demonstrable increase in punishment” can be said to result from the refusal.
Court’s Opinion ¶ 29. This point is grounded primarily in the government’s
interest in crime classification systems. In determining whether
LeMeunier-Fitzgerald’s consent was voluntarily given, however, we are
primarily concerned with the effect of the government’s warnings on
LeMeunier-Fitzgerald. See Birchfield, 579 U.S. ---, 136 S. Ct. at 2186. That she
could be charged with the same class of crime with the same maximum
sentence, whether or not she refused to submit to the blood test, does not
29
render LeMeunier-Fitzgerald’s consent voluntary in light of the warning that
one option—refusing to submit—would subject her to a higher minimum
criminal penalty. The sentence for OUI might be higher than the mandatory
minimum for OUI, but the sentence for OUI with refusal must be higher than the
mandatory minimum for OUI.
[¶42] Although it is true that a defendant in Maine, unlike a defendant in
North Dakota in 2013, can be sentenced to those heightened terms only if
convicted of the underlying OUI, 29-A M.R.S. § 2411(1-A)(A), (C) (2017), this is
a distinction without a difference. Whether a criminal penalty for refusal is
labeled an independent crime, an increase in the class of crime (thereby
increasing the authorized sentence), or the imposition of a heightened
authorized or mandatory minimum sentence, the legal effect on a defendant is
indistinguishable: the defendant who refuses to submit to a blood test and is
convicted of that refusal as part of an OUI conviction is subjected to a minimum
criminal penalty for the refusal that otherwise would not apply. Given this
identical effect, I submit that we must evaluate Maine’s duty-to-submit statute
as applied to LeMeunier-Fitzgerald according to the Supreme Court’s analysis
in Birchfield.
30
[¶43] The crux of the Supreme Court’s disposition as to Birchfield was
its conclusion that it is a violation of the Fourth Amendment to expose a
defendant to criminal penalties for his or her lawful exercise of the right to
withhold consent to a search in the form of a blood test. See Birchfield,
579 U.S. at ---, 136 S. Ct. at 2186. This conclusion is supported by countless
decisions prohibiting the government from forcing a person to waive a
constitutional right. See, e.g., Iowa v. Tovar, 541 U.S. 77, 81 (2004) (“Waiver of
the right to counsel, as of constitutional rights in the criminal process generally,
must be a knowing, intelligent act done with sufficient awareness of the
relevant circumstances.” (alteration omitted) (quotation marks omitted));
Miranda v. Arizona, 384 U.S. 436, 476 (1966) (“[A]ny evidence that the accused
was threatened, tricked, or cajoled into a waiver will, of course, show that the
defendant did not voluntarily waive his privilege.”); State v. Hill, 2014 ME 16,
¶¶ 5-6, 86 A.3d 628 (stating that a waiver of the constitutional right to counsel
must be “voluntary, knowing, and intelligent”); State v. Prescott, 2012 ME 96,
¶¶ 11-17, 48 A.3d 218 (holding that the defendant’s statements to police—
which were made when the defendant reasonably felt she was constrained by
the police—must be suppressed); State v. Tuplin, 2006 ME 83, ¶¶ 19-20,
901 A.2d 792 (discussing the best practice to avoid the defendant “feel[ing]
31
pressured into giving up his right to remain silent”). Fourth Amendment
jurisprudence imposes no duty on a criminal defendant to consent or submit to
a search. See Barlow, 320 A.2d at 899 (“Coercion which will invalidate consent
and render a search unreasonable in constitutional reference is not solely
confined to a consent obtained by threats or force, but is equally operative in
those situations where the consent is granted only in submission to a claim of
lawful authority.”).
[¶44] The crux of the Supreme Court’s disposition regarding Beylund
was its conclusion that threatening to expose a defendant to criminal penalties
for exercising his lawful right to refuse a blood test implicates the voluntariness
of a person’s consent to such a blood test even in the context of administrative
proceedings. See Birchfied, 579 U.S. at ---, 136 S. Ct. at 2186. The logical
corollary to both principles is that it is a violation of the Fourth Amendment to
allow the State, in a criminal matter, to use the evidence obtained from a search
undertaken after warning the accused that, if she is convicted of OUI, her refusal
will be used as evidence against her during trial and, if proved, will subject her
to an increased criminal penalty.
[¶45] In a criminal prosecution, when the State fails to obtain the
warrant that is the hallmark of a reasonable search and seizure and when no
32
exigent circumstances otherwise exist, the State may not use the only avenue
remaining to justify the search—obtaining the suspect’s consent to the
search—by informing the suspect that she has no lawful choice but to consent.
Just as it is per se unreasonable to subject a defendant to a criminal penalty for
refusing a blood test, the threat of such a criminal penalty negates any consent
given after such a warning in the context of a criminal prosecution. In my view,
LeMeunier-Fitzgerald’s consent to her blood test in these circumstances was
coerced and involuntary as a matter of law. See Birchfield, 579 U.S. at ---,
136 S. Ct. at 2186.
[¶46] Because LeMeunier-Fitzgerald’s consent was not “freely and
voluntarily given,” the test was an unreasonable search within the meaning of
the Fourth Amendment. The long-established remedy for unreasonable
searches is set out in the exclusionary rule: the evidence obtained as a result of
that unreasonable search was therefore inadmissible at trial.15 See Mapp v.
Ohio, 367 U.S. 643, 655-60 (1961); State v. McNaughton, 2017 ME 173, ¶ 42,
15 The application of the exclusionary rule is distinguishable from the point made in Birchfield
that, in its earlier decisions, the Supreme Court had “referred approvingly to the general concept of
implied-consent laws that impose civil penalties and evidentiary consequences on motorist who
refuse to comply.” 579 U.S. at ---, 136 S. Ct. at 2185. There, the Supreme Court was discussing the
admission of the fact of the defendant’s refusal, id., whereas LeMeunier-Fitzgerald’s case regards the
admission of the evidence obtained as a result of an unreasonable search performed in the absence of
a warrant, exigent circumstance, or consent.
33
168 A.3d 807; State v. Hawkins, 261 A.2d 255, 257-58 (Me. 1970). I would
vacate LeMeunier-Fitzgerald’s conviction and remand with instructions to
grant her motion to suppress the results of her blood alcohol test.16
JABAR, J., dissenting.
[¶47] I agree with Justice Gorman’s analysis, but I write separately
because I do not believe her dissent goes far enough. I agree that
LeMeunier-Fitzgerald’s consent to the blood test, obtained under what
amounted to the threat of an enhanced criminal penalty, was coerced and
involuntary as a matter of law. Gorman, J., Dissenting Opinion ¶¶ 42, 45.
However, I have additional serious concerns with the State’s implied consent
form, which informs drivers (1) that there exists a “duty” to submit to a blood
test, and (2) that evidence of refusal will be admissible in evidence at trial
against the accused driver. These two representations within the form—and
read to LeMeunier-Fitzgerald—constitute misrepresentations of the law.
16 The State argues that suppression of the test results was not required because the officer was
acting in “good faith reliance on existing law,” which, it argues, is a recognized exception to the
exclusionary rule that applies when “new developments in the law have upended the settled rules on
which the police relied.” United States v. Sparks, 711 F.3d 58, 68 (1st Cir. 2013); see Davis v. United
States, 564 U.S. 229, 236 (2011). We have not heretofore adopted this rule and I see no reason to do
so regarding the consent exception to the requirement of a warrant imposed by the Fourth
Amendment. See Birchfield, 579 U.S. at ---, 136 S. Ct. at 2186 n.9 (citing Heien v. North Carolina,
574 U.S. ---, 135 S. Ct. 530 (2014)).
34
A. Duty to Submit to a Blood Test
[¶48] In this case, the police officer used Maine’s implied consent form
to advise LeMeunier-Fitzgerald of her duty to submit to a blood test for the
purpose of determining her blood alcohol level. The Court, however, addresses
only a portion of the implied consent form that the officer read to the defendant.
Court’s Opinion ¶ 4. The police officer also read the following portion of the
form to LeMeunier-Fitzgerald:
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 alcohol level and drug concentration.
[¶49] This language in the form, which pre-dated Birchfield, applied to
“chemical tests”: both breath and blood tests. Birchfield changed everything
with regard to blood tests—and Maine’s implied consent form should no longer
state that defendants have a “duty” to submit to a blood test. See Birchfield v.
North Dakota, 579 U.S. ---, 136 S. Ct. 2160, 2185 (2016) (concluding “that a
breath test, but not a blood test, may be administered as a search incident to a
lawful arrest for drunk driving”) (emphasis added). Birchfield now requires
law enforcement to obtain a search warrant to extract blood from a defendant
for purposes of a blood test to determine the alcohol level of the defendant. Id.
at 2184.
35
[¶50] The United States Supreme Court and this Court have recognized
exceptions to the warrant requirement. See, e.g., Kentucky v. King, 563 U.S. 452,
459 (2011); State v. Boyd, 2017 ME 36, ¶ 8, 156 A.3d 748. Consent by the
defendant is a well-recognized exception to the need for search warrants. See,
e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The pivotal issue in
this case is whether LeMeunier-Fitzgerald voluntarily gave her consent to the
taking of her blood. There is a great deal of jurisprudence setting out how we
evaluate whether a defendant has voluntarily consented to a warrantless
search. See, e.g., State v. Nadeau, 2010 ME 71, ¶¶ 17, 56, 1 A.3d 445; State v.
Bailey, 2010 ME 15, ¶¶ 22-24, 989 A.2d 716; State v. Faulkner, 586 A.2d 1246,
1247 (Me. 1991); State v. Fredette, 411 A.2d 65, 68 (Me. 1979); State v. McLain,
367 A.2d 213, 216-17 (Me. 1976); State v. Barlow, 320 A.2d 895, 899
(Me. 1974).
[¶51] Citing Barlow, among other sources of law, the Court
acknowledges that consent cannot be voluntary if it is induced by
misrepresentation. Court’s Opinion ¶¶ 22, 32. The Barlow Court, citing to
Supreme Court precedent, explained “that a search cannot be justified as
reasonable and lawful on the basis of consent when that ‘consent’ has been
given only after the official conducting the search has asserted an alleged
36
authoritative right to search.” Barlow, 320 A.2d at 900 (quoting Bumper v.
North Carolina, 391 U.S. 543, 550 (1968)). In Barlow, this Court specifically said
that,
[w]here an officer . . . conveys to the defendant by affirmative
misrepresentations that he has the right to search without a
warrant as in the instant case, the defendant’s consent to the search
given in response to such false assertions must be regarded as the
mere submission of a law-abiding citizen to an officer of the law
and cannot be construed as a valid waiver of [her] constitutional
rights against an unreasonable search and seizure.
320 A.2d at 900.
[¶52] Here, Birchfield compels us to conclude that the implied consent
warning stating that a defendant has a duty to submit to a chemical test to
determine her alcohol level is a misrepresentation of the law. This is no
different than the police officers in Barlow who told the defendant that they had
the right to search without a warrant. See Barlow, 320 A.2d at 898-99. Both
involved misrepresentations of the law intended to overcome a defendant’s
right to withhold consent to a search. In light of Birchfield,
LeMeunier-Fitzgerald did not have a duty to take a blood test; she had an
absolute right to refuse to consent to a blood test. See Birchfield, 569 U.S. at ---,
136 S. Ct. at 2186. Therefore, just as the threat of an enhanced criminal penalty
is coercive as a matter of law, a police officer’s statement that a defendant has
37
a “duty to submit to and complete chemical tests to determine . . . alcohol level
and drug concentration” is coercive as a matter of law.
B. Comment on Evidentiary Consequences of Refusal
[¶53] The second statement made to the defendant also constitutes a
misrepresentation of the law. The police officer, again reading from Maine’s
implied consent form, stated to LeMeunier-Fitzgerald:
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.
Because Birchfield gives a defendant the constitutional right to refuse to submit
to a blood test, informing LeMeunier-Fitzgerald that if she refused, that refusal
would be admissible against her at trial, was a misrepresentation of the law,
and thus coercive.
[¶54] We recently held in State v. Glover that the State may not comment
on a defendant’s failure to give consent to a search. See 2014 ME 49, ¶¶ 16-17,
89 A.3d 1077. In Glover, the defendant exercised his constitutional right not to
submit to a warrantless DNA test, and the State repeatedly referenced Glover’s
refusal to consent to the warrantless search. Id. ¶ 14. Relying on the principle
that the “value of constitutional privileges is largely destroyed if persons can be
penalized for relying on them,” id. ¶ 13 (quotation marks omitted), we
38
“conclude[d] that the manner in which Glover’s exercise of a constitutional
right was used to penalize him at trial [was] fundamentally unfair and contrary
to the principles of justice that encourage the free exercise of constitutional
rights,” id. ¶ 16.
[¶55] After Glover, telling a defendant that the prosecution will use her
refusal against her if she does not agree to the blood test is a significant
misrepresentation of the law. Ultimately, it is not important what could happen
at trial; it is the misrepresentation of the law at the time of the inducement of
consent that is of import. When an officer misrepresents the law and allows the
defendant to believe that any refusal to consent will be used against her at trial,
the misrepresentation is inherently coercive.
[¶56] I would hold that it was coercive as a matter of law to tell
LeMeunier-Fitzgerald the following three things: (1) that she would face an
enhanced criminal penalty for refusal to submit to a blood test, (2) that she had
a “duty to submit” to the blood test, and (3) that any evidence of her refusal
would be admissible against her in a trial. The State’s implied consent form
should be modified to remove the language that misrepresents the law in light
of Birchfield.
39
HJELM, J., dissenting.
[¶57] I join Justice Gorman in her dissent from the Court’s conclusion
that no coercion results from a law enforcement officer’s statement to a driver
that, if she is ultimately convicted of OUI, her failure to submit to a blood draw
would subject her to an enhanced criminal penalty—including a minimum
mandatory jail term. I part ways with Justice Gorman’s analysis only on the
issue of the legal and procedural consequences of our mutual conclusion that
the officer’s duty-to-submit warning was coercive. In my view, the coercion
resulting from the warning given to LeMeunier-Fitzgerald does not render her
submission to the blood draw involuntary as a matter of law. Rather, the
coercive effect of the warning is one factor within the totality of the
circumstances that the trial court must consider in its voluntariness analysis.
For that reason, I would remand the matter for the court to reconsider the issue
of whether LeMeunier-Fitzgerald’s submission to the blood draw ultimately
was voluntary.
[¶58] In the face of LeMeunier-Fitzgerald’s challenge to the admissibility
of evidence obtained from the blood sample, the State bore the burden of
proving that her consent to the search that produced the blood sample “was, in
40
fact, freely and voluntarily given.” State v. Bailey, 2010 ME 15, ¶ 22, 989 A.2d
716 (quotation marks omitted). It is a basic principle of law that when an
accused challenges the voluntariness of a consent to search, a court is to
adjudicate the issue based on the totality of the circumstances.17 See, e.g.,
Birchfield v. North Dakota, 579 U.S. ---, 136 S. Ct. 2160, 2186 (2016); Ohio v.
Robinette, 519 U.S. 33, 40 (1996) (explaining that voluntariness of a consent to
a search is “a question of fact to be determined from all the circumstances”
(quotation marks omitted)); Schneckloth v. Bustamonte, 412 U.S. 218, 224-26
(1973) (explaining that voluntariness is determined by an assessment of “the
totality of all the surrounding circumstances” and does not “turn[] on the
presence or absence of a single controlling criterion”); United States v. Trueber,
238 F.3d 79, 95 (1st Cir. 2001) (“The question of voluntariness [of consent to a
search and questioning] is a question of fact determined by the totality of the
circumstances.”); State v. Marquis, 2018 ME 39, ¶ 17, 181 A.3d 684 (“The
determination of consent is a mixed question of fact and law to be determined
17 The same principle applies to the issue of voluntariness in other contexts, such as statements
to law enforcement. See, e.g., Dickerson v. United States, 530 U.S. 428, 433-34 (2000) (“The
determination [of voluntariness of a confession] depends upon a weighing of the circumstances of
pressure against the power of resistance of the person confessing.” (quotation marks omitted));
United States v. Palmer, 203 F.3d 55, 60 (1st Cir. 2000) (“To determine the voluntariness of a waiver
[of Miranda rights], it is necessary to look at the totality of the circumstances . . . .”); State v. Hunt,
2016 ME 172, ¶¶ 19-22, 151 A.3d 911 (explaining that voluntariness of a confession is determined
by examining the totality of the circumstances).
41
from all the circumstances existing at the time of the search.”); Bailey,
2010 ME 15, ¶¶ 23-24, 989 A.2d 716 (“As with other factors bearing on
voluntariness, whether a misrepresentation of the purpose of a search by the
police invalidates consent is a question of fact based on the totality of the
circumstances.”); State v. Barlow, 320 A.2d 895, 899 (Me. 1974) (“Whether a
given consent to a search in a particular case was in fact voluntary or the
product of duress, coercion, express or implied, is a question of fact to be
determined from the totality of all the surrounding circumstances.”).
[¶59] Here, despite the lessons of Birchfield, the court failed to assign any
coercive effect to the mandatory minimum sentence-related information given
by the officer to LeMeunier-Fitzgerald. For the reasons explained in Justice
Gorman’s dissent, the court’s analysis was erroneous. That error, however, is
not dispositive and does not warrant the conclusion as a matter of law that the
challenged evidence must be excluded. This is because evidence of coercion
arising from the duty-to-submit warning is but one element—albeit potentially
a significant one—within the universe of circumstances revealed by the
evidence presented at the motion hearing. Indeed, although the parties
stipulated to certain facts, including the content of the refusal-related warnings
provided to LeMeunier-Fitzgerald, the State also presented testimony from the
42
officer describing “the scene” at the hospital, where the officer informed her of
the consequences of a refusal. In that testimony, the officer described
LeMeunier-Fitzgerald’s demeanor during his interactions with her, her
conduct, and other factual matters such as her execution of a medical release
form. All of this information is material to reveal the broader context in which
LeMeunier-Fitzgerald decided to submit to the blood draw and which the court
must consider—in conjunction with the coercive warning—when evaluating
the voluntariness of that decision.
[¶60] In Birchfield, after determining that the implied consent warnings
were improper, the Court remanded the Beylund matter for the trial court to
reconsider whether, based on the totality of the circumstances and
notwithstanding the coercive effect of the warnings, Beylund’s consent was
voluntary. 579 U.S. ---, 136 S. Ct. at 2186-87. In my view, the same situation
exists here. Because the trial court committed legal error in its treatment of the
warnings, I would remand the matter for the court to reconsider whether,
based on the totality of the circumstances that includes the coercion created by
the duty-to-submit warning—the State has proved that LeMeunier-Fitzgerald
voluntarily submitted to the blood draw.
43
Jamesa J. Drake, Esq. (orally), and Zachary L. Heiden, Esq., American Civil
Liberties Union of Maine Foundation, Portland, and Darrick X. Banda, Esq., Law
Offices of Ronald W. Bourget, Augusta, for appellant Lyanne Lemunier-
Fitzgerald
Maeghan Maloney, District Attorney, and Kate E. Marshall, Asst. Dist. Atty.
(orally), Prosecutorial District IV, Augusta, for appellee State of Maine
Tyler J. Smith, Esq., Libby O’Brien Kingsley & Champion, LLC, Kennebunk, for
amicus curiae Maine Association of Criminal Defense Attorneys
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.,
Department of the Attorney General, Augusta, for amicus curiae Department of
the Attorney General
Kennebec County Unified Criminal Docket docket number CR-2016-222
FOR CLERK REFERENCE ONLY