AUGUSTA — A Belgrade woman is testing Maine’s drunken-driving law, saying she consented to have her blood drawn to determine alcohol content under the threat of imprisonment.
The Maine Supreme Judicial Court heard oral arguments Friday in the appeal of Lyanne Lemeunier-Fitzgerald at the Capital Judicial Center.
Lemeunier-Fitzgerald asks the court to find that “a defendant has a constitutional right to refuse to submit to a blood alcohol test, and that the implied consent warning impairs the free exercise of that right,” according to the defense brief filed in the case.
She maintains that results of that blood-alcohol test should have been suppressed by a superior court justice since she consented to the blood draw under coercion because of the threat of imprisonment.
Jamesa Drake, representing Lemeunier-Fitzgerald, said, “A police officer can either coerce or seek consent, but she can’t have it both ways simultaneously.”
Drake told the judges, “This court cannot upend nearly 50 years of U.S. Supreme Court law that where there is coercion there cannot be consent.”
At issue is the statement police officers read to people who are suspected of driving drunk. In Maine, police officers tell suspects that if they refuse a chemical test – either a breath test or blood test – and are convicted, their sentence would include jail time. The U.S. Constitution permits breath tests without a warrant, but does not permit blood tests without a warrant, according to a case frequently cited by both attorneys and judges during Friday’s arguments.
This is “the first opportunity to test whether Maine’s mandatory minimum period of incarceration for refusing to submit to a blood test runs afoul of the U.S. Supreme Court’s (2016) decision in Birchfield v. North Dakota,” according to the Maine Association of Criminal Defense Lawyers, which filed a brief in the case.
Attorneys and the justices frequently referenced the decision in the Birchfield case, which says, “The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”
Drake and the prosecutor in the case, Assistant District Attorney Kate Marshall, said the facts in the case were undisputed.
Lemeunier-Fitzgerald, 50, was found Dec. 21, 2015, behind the wheel of a vehicle that was parked incorrectly in a parking space at an Augusta supermarket.
She entered a guilty plea – conditional on the outcome of the appeal – to operating under the influence. She was sentenced to an initial 45 days in jail, with the remainder of the three-year sentence suspended, and two years of probation. The sentence is stayed pending appeal.
Lemeunier-Fitzgerald was not at Friday’s session, which was watched by about 20 people, including a number of attorneys.
Her defense attorney in the OUI case, Darrick Banda, sat with Drake.
Chief Justice Leigh Saufley told Drake that Birchfield provides some guidance, but that the facts are somewhat different in the Lemeunier-Fitzgerald matter.
“The issue for us then narrows down to the direction she received from the officer as to what would happen if she did not consent,” Saufley said. “Would you agree with me that the key problem with the informed consent is the fact that there could be an enhanced sentencing; there is, in fact, an enhanced criminal penalty if she is convicted of OUI?”
Drake agreed and said the warning implies the refusal would be admissible in evidence.
“Here in Maine there is no separate crime for refusal,” Associate Justice Ellen Gorman said. “If you are convicted it can result in an enhanced sentence.”
Marshall said the officer read Lemeunier-Fitzgerald warnings from an implied consent form, including information that refusing a chemical test, if convicted of the operating under the influence charge, carries a mandatory minimum jail term.
“She was given the information only on the implied consent form,” Marshall said Friday, adding that the officer did not recall the woman asking any questions. “She consented to the blood draw; she signed a medical waiver.”
Saufley told Marshall, “Although the title to the statute says ‘implied consent,’ as they do across the country, there is nothing in the state statute that says when you drive a car you imply or give your consent to this kind of search. Does that affect our determination as to whether this was a voluntary and consensual search?”
Marshall says the implied consent is part of a contractual agreement with the state through the Secretary of State’s office.
Associate Justice Andrew Mead asked whether it would be more correct to say that “the law requires consent.”
“You can withdraw your consent, your honor,” Marshall said. “You can’t compel somebody to give their arm, to stick a needle in their arm.”
Gorman said, “It’s a threat. If you don’t follow through with this, bad things will happen, so you should consent if you know what’s good for you.”
Marshall disputed that, saying “‘threat’ is a strong word” and that the officer was giving the defendant “information she needs to make a rational, informed choice.”
“How much more coercive than the threat of incarceration does the threat have to be? ” Justice Jeffrey Hjelm asked.
Alexander added, “Also if you refuse, off you go to the Secretary of State and they take your license even before you go to trial.” In her brief, Marshall says, “Every state, including Maine, has legislatively enacted ‘implied consent laws’ that require motorists, as a condition of operating a motor vehicle, to consent to chemical testing if they are arrested or detained upon suspicion of impaired driving,”
She adds, “Unlike the implied consent statutes previously in effect in Minnesota and North Dakota, Maine’s implied consent law does not criminalize the act of refusing; rather, a refusal ‘may be considered an aggravating factor at sentencing if the person is convicted of operating under the influence of intoxicants.”
The Maine attorney general’s office filed a brief in support of the district attorney’s position.
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