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State v. Brooker

Superior Court of Maine, Cumberland

July 5, 2016

STATE OF MAINE
v.
MYRA BROOKER, Defendant

          ORDER

          NANCY MILLS JUSTICE

         Before 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.

         FINDINGS

         The 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.

         The 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 150 days.

         The 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.

         Defendant 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.

         He told 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 information.

         CONCLUSIONS

         Defendant 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 entail.

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).

         In 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.

         In this 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. ...


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