the court is defendant's amended motion to suppress.
Defendant argues her due process rights were violated and
evidence of her statements and refusal to take a test must be
suppressed. For the following reasons, the motion is denied.
video shows the following. At the police station, the officer
read the implied consent form to defendant. She understood
paragraphs one and two. She did not understand paragraph
three. The officer stated a refusal would be considered an
aggravating factor at sentencing. The officer read paragraph
three a second time. He said defendant would not be forced to
take a test. Defendant wanted to be clear about the
implications of refusing to submit to a test. The officer
stated she would still be charged with OUI and that if she
took the intoxilyzer test, a blood alcohol content would be
printed. If she did not take the test, she would still be
taken to the county jail.
officer told her about the minimum mandatory sentence for a
.15 test or higher and a license suspension of up to six
years for a refusal. She stated again she did not understand
paragraph three. The officer told her the penalties for a
refusal would be stricter and higher than a normal OUI. The
officer then informed defendant incorrectly that if she was
found guilty of OUI and her test was .08 to .15, her license
suspension would be for 90 days, as opposed to the required
officer read paragraph four, which defendant understood. She
stated paragraph three was not super clear and she did not
think she would take the test because the implications were
not clear. The officer next stated he could not answer
specific questions about fines. The defendant signed the
refusal form. She stated again she did not understand
paragraph three and alleged that the officer did not want to
answer her questions. The officer then stated that he did not
know what the implications are but the penalties would be
stiffer if defendant refused a test.
asked if she would lose her license immediately. The officer
stated she would receive a letter in the mail within a couple
of weeks with the effective date for the suspension. He told
her she had the right to an administrative hearing. He asked
again if she wanted to refuse the test. She stated the
information was not clear enough for her to submit to a test
and that no one wanted to answer her questions. She asked if
her license would be suspended in two or three weeks. The
officer stated her license would be active until she received
the notice with the effective date for the suspension, which
would be in at least two weeks. Defendant stated that she
needed a license to get to work.
her the administrative hearing would determine whether the
license suspension would be upheld but stated incorrectly
that the suspension of her license would be stayed pending an
administrative hearing. He reiterated that her license would
remain active until a hearing. He also stated that the
hearing examiner would determine when the suspension would go
into effect. In response to the officer's statements,
defendant stated, "So, they'll make determinations
at that point." The officer responded, "Yes."
The officer then asked her once more whether she wanted to
take a test and she said no because she did not have clear
argues her due process rights were violated.
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 . . . The test for determining whether state
action violates the Due Process Clause . . . 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
Roberts v. Maine, 48 F.3d 1287, 1291-92 (1st Cir.
1995). The loss of a driver's license "is a property
interest worthy of due process protection." State v.
Stade, 683 A.2d 164, 166 (Me. 1996).
Roberts, the officer did not inform defendant of a
minimum mandatory sentence for a failure to take a test.
Defendant later received that sentence. The court determined
the officer's action deprived defendant "of liberty
in a manner lacking in fundamental fairness and offensive to
the universal sense of fair play." Roberts, 48
F.3d at 1292. In Stade, the officer incorrectly
assured defendant not to worry about losing his license
because he could obtain a driver's license for work
purposes. Stade, 683 A.2d at 165. Based on that
false information and the officer's failure to read the
implied consent form, the suppression of the blood-alcohol
test was affirmed on due process grounds. Id. at
166. In State v. Bavouset, the officer incorrectly
told defendant the mandatory period of incarceration for a
refusal was 48 hours as opposed to the required 96 hours.
See State v. Bavouset, 2001 ME 141, ¶ 2, 784
A.2d 27. In distinguishing Stade, the court found no
violation of due process because the officer informed
defendant about a minimum mandatory sentence for a refusal
but misstated the duration of the incarceration. See
id. ¶ 5.
case, when the officer told defendant her license would be
suspended for 90 days for a refusal as opposed to the
required 150 days, defendant was misled about the duration of
a suspension and not the fact of suspension. See id.