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State v. Elvin

Superior Court of Maine, Kennebec

December 14, 2017

STATE OF MAINE
v.
DEREK B. ELVIN

          ORDER ON MOTION TO SUPPRESS

          William R. Stokes Justice.

         Pending before the court is the Defendant's Motion to Suppress Evidence resulting from the taking of a urine sample from him on March 2, 2017. The motion was filed on August 11, 2017.[1] A hearing on the motion was held on November 28, 2017. The court received the testimony of Maine State Trooper Seth Allen, a certified drug recognition expert. Based on the Trooper's testimony, the court makes the following findings of fact.

         On March 2, 2017, the Defendant was taken into custody after Augusta police responded to a scene on Route 201 at which the Defendant's vehicle was off the road and on the opposite side of the road. The officer at the scene observed 6 clues on the HGN (Horizontal Gaze Nystagmus) examination and multiple clues on the field sobriety tests, including the walk and turn and the one-leg stand.

         The Defendant was brought to the Augusta Police Department where he performed a breath test using the intoxilyzer machine. The Defendant's BAC from the breath test was 0.00.

         Suspecting that the Defendant had been under the influence of drugs, rather than alcohol, an Augusta police officer called Trooper Allen to come to the station and conduct a drug recognition examination of the Defendant. Trooper Allen complied with this request, and arrived at the Augusta Police Department about an hour, or perhaps slightly more than an hour, after the Defendant had been brought there.

         Trooper Allen began the DRE by taking the Defendant's pulse, doing addition field sobriety tests, examining the Defendant's eyes, checking his muscle tone, etc. The Trooper then stated:[2]

TROOPER: I'm going to need a urine sample.
DEFENDANT: Yeah.
TROOPER: Are you going to be able to give me one?
DEFENDANT: Yes.
TROOPER: Do you need to go now?
DEFENDANT: No.

         The Trooper continued with his DRE examination of the Defendant, and at some point, the Defendant was handed a cup, entered the bathroom, urinated into the cup in the presence of the Trooper, and signed the label of the cup. The Defendant did not affirmatively object to providing a urine sample, nor was he told that he could refuse to provide one. The Defendant was never affirmatively or expressly asked if he was willing to provide a urine sample.

         The sole issue before the court is whether the State has met its burden of proving by a preponderance of the evidence that the Defendant voluntarily consented to the taking of his urine sample. The State acknowledges that no search warrant was obtained for the urine ...


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