ORDER ON DEFENDANT'S MOTION TO SUPPRESS
the Court is the Defendant's Motion to Suppress the test
results of blood taken from the Defendant on March 24, 2016.
Law enforcement found the Defendant at the scene of a
serious, one-car accident in which her vehicle rolled several
times, apparently ejecting her through the sun roof. She is
charged with operating under the influence. The State is
represented by Assistant District Attorney Alisa Ross, and
the Defendant is represented by Attorney Walt McKee. A
testimonial hearing on the motion was held on October 14,
2016 after which counsel for the parties submitted written
arguments which were received by the Court on October 24,
2016. The Court has considered the testimony presented at
hearing, has reviewed the six files on the video admitted as
State's Exhibit 1, has considered their written
arguments, and for reasons stated below grants the motion.
October 14, 2016 hearing the State called Officer Marcus
Neidner of the Gardiner Police Department who responded to
the accident scene and is the primary investigator in this
case. Officer Neidner testified that he responded to the
accident scene in the early morning hours of March 24, 2016.
At first he could not locate the driver, but it was apparent
to him that the vehicle had rolled several times and the
vehicle's air bags had deployed. He soon located the
Defendant kneeling next to the vehicle which was in his
opinion "totaled." The Defendant was bleeding from
her torso and face, and was "very shaken up" and
disoriented. She admitted to drinking, and the parties have
stipulated that there was probable cause to believe that she
was under the influence of alcohol at the time of operation.
The issue presented is whether the Defendant consented to the
blood draw which the parties agreed constituted a warrantless
search of her person under Birchfield v. North
Dakota, 579 U.S.___ 2016.
the first 4 files of the video, Officer Neidner is heard
asking the Defendant to consent to having her blood drawn.
The two paramedics who arrive at the accident scene shortly
after Officer Neidner locates the Defendant also try to get
her to agree to the blood draw. They are enlisted by the
officer to take a blood draw, and when she is asked to
consent she is heard to say, "whatever." However,
she almost immediately resists their efforts to hold her arms
in place so they can locate a vein. She refuses to follow
their directions, and seems fixed on trying to get out of the
neck collar they placed her in so they could safely transport
her to the hospital. Her affect changes rapidly. She is
laughing, then she is angry, and she cries and sometimes
screams, particularly when they give her a shot of something
to help her "calm down." While they do this after
telephonically consulting with another medical professional,
it is clear that she does not consent to the administration
of the sedative. Their efforts, which include having to
restrain her from swinging at them, holding her down and
strapping her to the ambulance stretcher, are all for naught
as they are unable to obtain the blood requested by the
second file in the video depicts her shortly after arrival at
the hospital and Officer Neidner asks the nurse to call the
lab for him so that blood can be drawn. She is still crying
and fairly incoherent. The third file shows her sobbing under
warming blankets. She is asked by the lab technician if she
will let her blood be drawn and the Defendant loudly replies,
"No!" She is told by the technician that she really
does not have any choice and the Defendant continues to cry.
Officer Neidner tells the technician that he will help walk
her through the blood draw process and shows her how to fill
out the forms. The technician keeps attempting to obtain
consent from the Defendant and at one point the Defendant is
heard to say, "Take it." She is then asked if she
will give her verbal ok even if does not sign the form, but
she does not respond.
Neidner is heard to advise the nurse to "Take it while
she is in the giving mood", and it appears that the
blood draw process begins. The Defendant screams
"Ow!" and continues to cry. She is heard to say she
does not want to sign the consent form even after being told
that the hospital needs to take her blood. After the draw is
complete, Officer Neidner and the lab techs begin dividing up
the vials of blood and begin completing paper work.
fourth file shows the Defendant after the blood draw.
She is still crying and moaning. One of the lab technicians
comes over to Officer Neidner with what is apparently a
consent form signed by the Defendant. She says,
"Can't say she agreed to it but she did
State has the burden to prove by a preponderance of evidence
that the Defendant consented to this warrantless search of
her person. As stated by the Law Court in State v.
Nadean, 2010 ME 71, ¶ 71, consent can be proven by
"an objective manifestation.. .by word or gesture."
While it is accurate to say, as the State notes, that there
were several times seen in the video where the Defendant
signifies that she is willing to give blood, it is clear that
those moments are, to say the least, fleeting. She does say
"whatever" when told before she is sedated at the
scene that she will have to give them a blood sample because
she is too injured to give a breath test. However, after she
is forcibly medicated, her mood soon worsens and she persists
in either saying she will not consent or she simply does not
respond to the requests that she do so. She is also heard to
say at one point, "Ok" and at another, "Take
it" but then she refuses to give verbal consent when
asked to confirm the statement.
she is told by one of the lab technicians that she really
does not have any choice in the matter, she stops physically
resisting and one of the technicians is able to fill a number
of vials with her blood. After the blood draw, the other
technician tries to get her to sign the consent form which
she apparently does off camera. However, as noted above, the
technician's report of the consent "process" is
telling. She reports to Officer Neidner, "Can't say
she agreed to it but she signed."
Court cannot find on this record that the Defendant either
expressly or impliedly consented to the warrantless search of
her person. It was not knowingly or voluntarily given. The
Court agrees with the Defendant that her response to the
request for consent is better characterized as
"acquiescence to a claim of authority" [U.S.
v. Marshall 348 F.3d 281, 285 (1st
Cir. 2003) ] or "mere submission" to police
authority. Florida v. Royer, 460 U.S. 491, 497
(1983). Neither of those responses or states of mind equate
entry will be: Defendant's Motion to Suppress the results
of the blood draw taken from the Defendant's person on
March 24, 2016 is GRANTED.
Files 5 and 6 were reviewed by the
Court but they did not contain anything pertinent to the
issue before the ...