Argued: May 12, 2017
Jamesa
J. Drake, Esq. (orally), and Zachary L. Heiden, Esq.,
American Civil Liberties Union of Maine Foundation, Portland,
and DarrickX. Banda, Esq., Law Offices of Ronald W. Bourget,
Augusta, for appellant Lyanne Lemunier-Fitzgerald
Maeghan Maloney, District Attorney, and Kate E. Marshall,
Asst. Dist. Atty. (orally), Prosecutorial District IV,
Augusta, for appellee State of Maine
Tyler
J. Smith, Esq., Libby O'Brien Kingsley & Champion,
LLC, Kennebunk, for amicus curiae Maine Association of
Criminal Defense Attorneys
Janet
T. Mills, Attorney General, and Donald W. Macomber, Asst.
Atty. Gen., Department of the Attorney General, Augusta, for
amicus curiae Department of the Attorney General
Panel:
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.
SAUFLEY, C.J.
[¶1]
This appeal requires us to determine whether evidence
obtained from a warrantless blood-alcohol test, taken upon
probable cause to believe that a driver's ability to
operate a motor vehicle was impaired by intoxicants, falls
within the consent exception to the warrant requirement if
the suspect agrees to the blood draw following the standard
explanation of the implied consent warnings. In this evolving
area of Fourth Amendment jurisprudence, we conclude that the
operator consented to the blood test, and we affirm the
denial of the motion to suppress.[1]
I.
BACKGROUND
[¶2]
Lyanne LeMeunier-Fitzgerald appeals from a judgment of
conviction entered by the trial court (Kennebec County,
Mullen, J.) upon her conditional guilty plea to
charges of operating under the influence (Class C), 29-A
M.R.S. § 2411(1-A)(B)(2), (5)(C) (2017), and operating
beyond a license condition or restriction (Class E),
29-AM.R.S. § 1251(1)(B) (2017), entered after the court
(Marden, J.) denied her motion to suppress the
results of a blood test for alcohol. She challenges the
court's determination that she voluntarily consented to
the blood test after she was warned by the arresting officer
that there were potential consequences if she refused to
consent.
[¶3]
The operative facts, most of which were found upon the
parties' stipulation and none of which are disputed on
appeal, are as follows. On December 21, 2015, an Augusta
police officer suspected that LeMeunier-Fitzgerald was
operating under the influence of an intoxicant after
observing her in a supermarket parking lot. Her vehicle was
partially pulled out of a parking space, her eyes were
glassy, and she smelled of alcohol. When the officer
approached and questioned her, she grabbed a bottle of pills
and poured them into her mouth. The officer placed her in
handcuffs and called for a rescue team. When the rescue team
arrived, the handcuffs were removed and LeMeunier-Fitzgerald
was taken to the hospital.
[¶4]
After hospital personnel had attended to LeMeunier-Fitzgerald
and had placed her in a room, the officer met with her. The
officer informed her that he suspected that she had been
attempting to operate a motor vehicle while under the
influence of intoxicants, and he read Maine's
"implied consent" warnings to her verbatim from a
form provided by the Secretary of State's Bureau of Motor
Vehicles. See 29-A M.R.S. § 2521 (2017).
Included was the warning, "If you are convicted of
operating while under the influence of intoxicating liquor or
drugs, your failure to submit to a chemical test will be
considered an aggravating factor at sentencing which in
addition to other penalties, will subject you to a mandatory
minimum period of incarceration." LeMeunier-Fitzgerald
agreed to submit to the blood test, and a blood sample was
taken from her without a warrant.
[¶5]
LeMeunier-Fitzgerald was charged by complaint, and she was
later indicted, for operating under the influence (Class C),
29-A M.R.S. § 2411(1-A)(B)(2), and operating beyond a
license condition or restriction (Class E), 29-A M.R.S.
§ 1251(1)(B). She moved to suppress the blood test
results as having been procured without a warrant and without
voluntary consent, in violation of the Fourth Amendment to
the United States Constitution. The court held a hearing on
the motion to suppress on July 26, 2016. The parties
stipulated that (1) the officer had probable cause to believe
that LeMeunier-Fitzgerald was operating while under the
influence of an intoxicant, (2) her blood was drawn without a
search warrant, and (3) there were no exigent circumstances.
The court then heard brief testimony from the officer who had
taken LeMeunier-Fitzgerald into custody. For purposes of the
motion, that testimony was not disputed by
LeMeunier-Fitzgerald.
[¶6]
The court denied the motion to suppress, reasoning that,
unlike the situation that the United States Supreme Court
recently addressed in Birchfield v. North Dakota,
LeMeunier-Fitzgerald did not submit to the blood testing
"on pain of committing a criminal offense." 579
U.S. __, 136 S.Ct. 2160, 2186 (2016). The court concluded
that the heightened minimum penalties, including a mandatory
minimum period of incarceration, that may be imposed on a
person who refuses to submit to testing if convicted of OUI
were not equivalent to an independent criminal offense for
refusal as described in Birchfield. 579 U.S. at __,
136 S.Ct. at 2169-70, 2186.
[¶7]
LeMeunier-Fitzgerald entered a conditional guilty plea,
preserving her right to appeal from the ruling on the motion
to suppress, and the court [Mullen, /.) sentenced
her to three years in prison, with all but forty-five days
suspended, [2] and two years of probation for the OUI
conviction and forty-five days in prison, to run
concurrently, for the conviction of operating beyond a
license condition or restriction. The court also imposed
fines and surcharges amounting to $1, 405.
[¶8]
LeMeunier-Fitzgerald timely appealed. See 15
M.R.S.§2115 (2017); M.R. App. P. 2(b)(2)(A) (Tower
2016).[3] She argues that the blood test violated
the Fourth Amendment's protection against unreasonable
searches and seizures because it was taken without a warrant
and her consent to the test was rendered involuntary by the
warning of an increased minimum sentence if she refused to
consent and was then convicted.
II.
DISCUSSION
[¶9]
We anchor our analysis in the language of the United States
Constitution. "The right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be
seized." U.S. Const, amend. IV. There is no question
that strictures of the Fourth Amendment apply to searches in
the form of blood tests. See Schmerber v.
California, 384 U.S. 757, 767-72 (1966). The question is
how those strictures apply here.
[¶10]
In recent years, courts across the country have been
challenged to find an appropriate balance between a
defendant's right to be free from
"unreasonable" searches of their blood for its
alcohol content and the State's interest in addressing
the public safety crisis resulting from impaired drivers
causing death and destruction on America's
roads.[4] U.S. Const, amend. IV. We endeavor here to
assure that the constitution's prohibition against
unreasonable searches and seizures is given full force, with
the required determination of reasonableness informed by a
full consideration of urgent public safety
considerations.[5] In this opinion, we (A) summarize the
Fourth Amendment jurisprudence regarding searches undertaken
for purposes of blood-alcohol testing; (B) review the
statutory basis for providing warnings about the legal
consequences of a refusal to submit to testing; and (C)
consider the legal question of whether a driver who consents
to a blood draw after receiving such warnings has voluntarily
consented, recognizing, as the First Circuit has eloquently
explained, that a defendant's consent that has been
"pried loose by... a claim of authority is merely
acquiescence." United States v. Vazquez, 724
F.3d 15, 23 (1st Cir. 2013). A. Alcohol Testing and the
Fourth Amendment
[¶11]
We begin with the bedrock understanding that the withdrawal
of a blood sample from the veins or arteries of a human being
for blood-alcohol testing is a "search" falling
within the protection of the Fourth Amendment. See
Birchfield, 579 U.S. at __, 136 S.Ct. at 2173;
Schmerber, 384 U.S. at 767; State v. Boyd,
2017 ME 36, ¶ 8, 156 A.3d 748; State v. Arndt,
2016 ME 31, ¶ 8, 133 A.3d 587. The Fourth Amendment
prohibits unreasonable searches, and the procurement of a
legitimate search warrant, with all that it entails, is
designed to ensure the reasonableness of a search. See
Skinner v. Ry. Labor Executives' Ass'n, 489 U.S.
602, 619, 622 (1989).
[¶12]
As is also clear, however, there are "a few specifically
established and well-delineated exceptions" to the
warrant requirement. Katz v. United States, 389 U.S.
347, 357 (1967); see also Missouri v. McNeely, 569
U.S. 141, 148-49 (2013); Georgia v. Randolph, 547
U.S. 103, 109 (2006). "When faced with special law
enforcement needs, diminished expectations of privacy,
minimal intrusions, or the like, the [Supreme] Court has
found that certain general, or individual, circumstances may
render a warrantless search or seizure reasonable."
Illinois v. McArthur, 531 U.S. 326, 330 (2001);
see, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940
(1996) (per curiam) (holding that a warrantless search of an
automobile is reasonable if the automobile is readily mobile
and the search is supported by probable cause); Mich.
Dep't of State Police v. Sitz, 496 U.S. 444, 453-55
(1990) (holding that the use of a sobriety checkpoint was
reasonable when it was instituted based on objective indicia
of effectiveness).
[¶13] In addressing the reasonableness of searches aimed
at detecting impaired driving, the Supreme Court has held
that a breath test measuring blood-alcohol content
is a search that does not require a warrant, consent, or
other exceptions, as long as there is probable cause to
believe that the driver was operating, or attempting to
operate, a vehicle while under the influence. See
Birchfield, 579 U.S. at __, 136 S.Ct. at 2184-85. The
Court has reasoned that a breath test is less intrusive than
a blood test, and when balanced against the law enforcement
needs of keeping impaired drivers off the roads, it is
reasonable, even without a warrant, for a law enforcement
officer to require a driver to submit to a breath test if
probable cause exists. See id.
[¶14]
Because it is more intrusive, however, a warrantless blood
draw cannot be justified as a search incident to an arrest
for OUI. Id. at 2185. Thus, some other exception to
the warrant requirement is necessary to establish the
reasonableness of the blood draw to test for alcohol.
[¶15]
The parties have agreed that the consent exception is the
only exception at issue on appeal.[6] The question before us
concerns whether, given the need to prevent drivers from
operating vehicles while under the influence of intoxicants,
it is reasonable to draw a driver's blood without
procuring a warrant when the driver has consented to a blood
test after being read Maine's statutory warnings about
the consequences of refusing to submit to testing.
B. The
Duty to Submit to Testing and Warnings of the Consequences of
Refusing to Submit
[¶16]
Due to concerns about deaths and injuries resulting from
drunk driving, States have adopted laws designed to ensure
the testing of blood-alcohol levels through breath or blood
tests, predominantly through statutes providing that drivers
"imply" their consent to testing by operating
vehicles on the roads. See Birchfield, 579 U.S. at
__, 136 S.Ct. at 2166, 2168-69. The Maine Legislature enacted
its "implied consent" law to take effect on October
1, 1969. P.L. 1969, ch. 439, § 1 (codified at 29
M.R.S.A. § 1312 (Supp. 1970)). That statute provided
that any person operating or attempting to operate a motor
vehicle in Maine who had been arrested for operating while
intoxicated would "be deemed to have given consent to a
chemical test of the blood alcohol level of his blood or
urine." Id.
[¶17]
More than a decade later, in response to our decision
interpreting the "implied consent" statute,
State v. Plante, 417 A.2d 991 (Me. 1980),
[7] the
Legislature amended the statute, eliminating the presumption
of consent upon operation of a vehicle and establishing a
duty to submit to testing. See P.L. 1981, ch. 679,
§ 12 (effective April 15, 1982) (codified at 29 M.R.S.A.
§ 1312 (Supp. 1982)). The present statute, 29-A M.R.S.
§ 2521(1) (2017), which was in effect when
LeMeunier-Fitzgerald's blood was drawn, provides,
"If there is probable cause to believe a person has
operated a motor vehicle while under the influence of
intoxicants, that person shall submit to and complete a
test to determine an alcohol level and the presence of a
drug or drug metabolite by analysis of blood, breath or
urine." (Emphasis added.) The statute provides for the
administration of a breath test "unless, in th[e]
officer's determination, a breath test is
unreasonable," in which case "another chemical test
must be administered in place of a breath test."
Id. § 2521(2).
[¶18]
Thus, although Maine's chemical testing statute bears the
title "Implied consent to chemical tests," the
statute "no longer provides that a person will be
'deemed' to have consented to testing by operating a
motor vehicle on Maine's roads." Boyd, 2017
ME 36, ¶ 13, 156 A.3d 748. The statute was amended to
impose on a driver a duty to submit to testing when there is
probable cause to believe that the driver has operated a
motor vehicle while under the influence. Id.
Accordingly, we refer to the statute as the
"duty-to-submit" statute and clarify that
LeMeunier-Fitzgerald did not, by operation of her vehicle,
"imply" that she consented to chemical testing.
[¶19]
The duty to submit does not, however, create a statutory
mandate to submit to testing. Rather, it provides
specific consequences for a driver's decision not to
comply with that duty. See 29-A M.R.S. §
2521(3), (5), (6) (2017). In order for the consequences of
refusal to apply, the driver must have been provided with a
direct and clear explanation of those consequences. See
id.§ 2521(3).
[¶20]
The specific question before us concerns the voluntariness of
LeMeunier-Fitzgerald's verbal consent given after
receiving warnings of the consequences of refusing, despite
the existence of probable cause, to submit to testing. With
respect to such warnings, the statute provides:
Neither a refusal to submit to a test nor a failure to
complete a test may be used for any of the purposes specified
in paragraph A, B or C unless the person has first been ...