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State v. Brooker

Superior Court of Maine, Cumberland

June 8, 2016

STATE OF MAINE
v.
Myra Brooker

          William T. Bly, Esq. Attorney for Ms. Myra Brooker

          DEFENDANT'S AMENDED MOTION TO SUPPRESS M.R.CRIM.P.41A(A)

         NOW COMES the Defendant, Myra Brooker, by and through her attorney, William T. Bly, and moves to suppress the State's evidence obtained in violation of her State and Federal Constitutional Rights.

         STATEMENT OF THE FACTS

         On December 11, 2015, after cooperating with field sobriety tests, the Defendant, Myra K. Brooker (herein "Brooker'), was arrested by Scarborough police, and charged with Operating under the Influence (“OUI"} (Scarborough Police Report Page 1). After her arrest, officers brought Brooker to the police station, and began the process of administering an intoxilyzer test to Brooker. Brooker wanted to know the consequences of not taking the test, so Officer Hebert gave her a copy of, and began reading from, the Implied Consent Form. During this time period, Officer Hebert informed Brooker that "it's your right if you want to refuse but I have to read you these consequences, " After indicating she understood the first two paragraphs of the form, Brooker told Officer Hebert that she did not understand the third paragraph, and asked for clarification. Officer Hebert kept reading paragraph three, and when asked if she understood, Brooker stated she did not, as she needed more information. She began asking questions about the implications of her not taking the test. Specifically, she wanted to know information regarding possible fines, jail time, and license suspension. Hebert advised her to look at paragraph three for that information. While Officer Hebert refrained from answering some of her specific questions, he did speak to her regarding the length of her suspension if she registered at a level in between .8%-15% Breath Alcohol Content. He told her, erroneously, that she would likely face a ninety-day suspension if she registered at that level. In addition, Officer Hebert went into great detail about the BMV suspension process and indicated to Brooker that if she requested a hearing, a stay would be placed on her suspension and that when the hearing was conducted, if she lost, she wouldn't go under suspension until midnight of that night. That information was patently false.

         After indicating she understood paragraph four of the Implied Consent form, she stated she would refuse to take the intoxilyzer test, based on the fact she did not have enough information to make the decision, especially with paragraph three, and then signed the form. She was then charged with OUI Refusal and transported to the Cumberland County Jail, where she was booked.

         Brooker now files this Motion to Suppress Evidence regarding her refusal to take the intoxilyzer test. Because Officer Hebert's erroneous claims that she had a right to refuse to take a test, that her suspension would be ninety-days if she tested within a .08%-15% BrAC range, as opposed to the correct one-hundred fifty day suspension, and that if she requested a BMV hearing, a stay would be placed on her suspension, which ostensibly would allow her to continue to drive, it is clear that her constitutional right of Due Process was infringed upon.

         ARGUMENT

         "No state shall... deprive any person of life, liberty, or property, without due process of law" U.S. Const, amend. XIV, § 1. "[W]hen a defendant asserts that the circumstances surrounding a refusal to take a blood-alcohol test have violated her right to due process, we review the procedures used by the police to determine if the conduct 'offends the community's sense of justice, decency, and fair play.'" State v. Bavouset, 2001 ME 141, ¶ 7, 784 A.2d 27 (quoting Roberts v. State of Maine, 48 F.3d 1287, 1291 (1st Cir. 1995)).

In determining whether state action violates the due process clause, a court considers: (1) the private interest that will be affected by the government's action; (2) the risk of an erroneous deprivation of such an 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 the fiscal and administrative burdens that additional procedures might entail.

State v. Stade, 683 A.2d 164, 166 (Me. 1996) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, (1976)). "The process due an individual will 'vary from case to case... to assure the basic fairness of each particular action according to its circumstances.'" State v. Cote, 1999 ME 123, ¶ 11, 736 A.2d 262. (quoting Fichter v. Board of Envtl. Protection, 604 A.2d 433, 437 (Me.1992)). "[L]oss of [a defendant's] driver's license is a property interest worthy of due process protection." Stade, 683 A.2d at 166, See also State v. Savard, 659 A.2d 1265, 1267 (Me. 1995). "29-AM.R.S.A. §2521(3) requires that before a blood-alcohol test is administered to a person suspected of operating under the influence, the law enforcement officer must inform the person of the consequences of the failure to submit to and complete a test." Id. at 165. "[A]n erroneous deprivation of liberty can result from a suspect's behavior under rather dubious circumstances, if not false pretenses, created by the state." Roberts, 48 F.3d at 1293. "[T]here is a strong due process justification for requiring law enforcement officials to inform drivers of implied consent information and to refrain from giving drivers assurances that minimize the seriousness of a subsequent loss of license privileges." Stade, 683 A.2d at 166. "When the warnings themselves or the actions or statements of law enforcement officials affirmatively and significantly mislead a driver, the driver's right to due process may be violated." Cote, 1999 ME 123, ¶ 18, 736 A.2d 262. "Finally, although the State's interest in preventing drunk drivers from operating on our highways is great, the State has no legitimate interest in allowing its law enforcement officers both to ignore the statutory requirements of the implied consent law and to affirmatively mislead citizens about the consequences of taking or failing to take a blood-alcohol test." Stade, 683 A.2d at 166. "It is therefore in the State's interest to meaningfully explain the consequences of refusal. To have its desired effect-persuading a suspect to submit to a chemical test- the warnings must be clear. Cote, 1999 ME 123, ¶ 16, 736 A.2d 262.

         The courts in Maine have long held that Due Process rights can be violated when police give inaccurate information regarding the consequences of taking or refusing an intoxilyzer test. See Roberts, 48 F.3d at 1295. In Roberts, the defendant was not told that refusing to take the breathalyzer test would carry a mandatory two-day jail sentence if convicted of an OUI, and was not allowed to call his attorney before making the decision to refuse the test. Id. at 1288. The First Circuit vacated Robert's sentence, including the mandatory two-day incarceration, stating:

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.

Id. at 1293. "Roberts thus had to make a decision with irrevocable consequences for his sentence after the state provided him with inaccurate information with which he was expected to make that decision. In other words, absent the inaccurate information, the two-day jail term may not have been imposed." Id. Because Roberts chose to not take the test based on false information provided to him by the police, and was not allowed to call his attorney, the Court found that imposing the two-day jail sentence on him violated his right to Due Process. In Brooker's case, we have a police officer, when discussing whether to take the test or not, misquoting the length of suspension by sixty days, informing her that she has a right to refuse and that if she refuses to take a test, the BMV will stay the suspension of her license if she requests a hearing. Absent the inaccurate information, Brooker may have decided to go along and submit to a test. Instead, she had to make a choice with irrevocable consequences, basing her decision off of the erroneous information Officer Hebert gave to her. Even though the Roberts case dealt with incarceration, and this case deals with license suspension, a stay of suspension and a right to refuse, the result is no different. See Stade, 683 A.2d at 166 ("[L]oss of [a defendant's] driver's license is a property interest worthy of due process protection."). Brooker was given inaccurate information in which she based her decision off of, and therefore the evidence of refusal must be suppressed.

         While the Court denied a motion to suppress an OUI refusal in State v. Bavouset, the reasoning is distinguishable from Brooker's situation. 2001 ME 11, ¶ 1, 784 A.2d 27. In Bavouset, the police incorrectly informed the defendant that the mandatory incarceration period for refusing the test, should she be convicted, would be forty-eight hours, when in fact it was ninety-six hours. Id. at ¶ 2. The Law Court held that this misunderstanding was not a violation of Due Process, stating that, since the mistake was only in duration, not in fact, there was no violation in Due Process. Id. at ¶ 5. "[T]here exists no bright line past which an officer's misstatement must result in the suppression of evidence of a refusal. Rather, when a defendant asserts that the circumstances surrounding a refusal to take a blood-alcohol test have violated her right to due process, we review the procedures used by the police to determine if the conduct 'offends the community's sense of justice, decency, and fair play.'" Id. at ¶ 7 (quoting Roberts, 48 F.3d at 1291.). In Brooker's case, while there is also a mistake in duration rather than fact, there are other, more troubling misstatements and well-intentioned but erroneous advice and information given to the Defendant. Hebert's misinformation provided to Brooker "offended the community's sense of justice, decency, and fair play." Id. Brooker kept telling the officer that she did not understand the information, and Hebert, in his attempts to explain the paragraph #3 and the BMV process to the Brooker, provided misinformation on key areas that clearly drove Brooker's refusal to submit to a chemical test. "To have its desired ...


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