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State v. Keith Chase
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 168
Docket:	Wal-01-242
Argued:	October 9, 2001
Decided:	December 12, 2001




	[¶1]  The State appeals from the order of the Superior Court (Waldo
County, Marsano, J.) granting Keith Chase's motion to suppress the results
of his blood-alcohol test.  The State contends that the court erred in
excluding an otherwise reliable blood-alcohol test on the basis of the
arresting officer's failure to administer informed consent warnings to Chase
prior to obtaining a blood sample.  We vacate the suppression order.
	[¶2]  The State alleges that on May 11, 2000, in Stockton Springs, the
vehicle Keith Chase was driving went off the road and struck a tree.  Officers
from the Waldo County Sheriff's Office responded.  Both Chase and his
passenger were seriously injured in the accident and were transported to
the hospital.  The motion justice found that Chase was "both emotionally and
intellectually disarranged," and that he "was not lucid and was only
marginally capable of understanding events as they unfolded." 
	[¶3]  At the direction of one of the officers, a nurse at the hospital
took a blood sample from Chase using a standard kit.  Chase was not
informed that his blood would be tested in an investigation of possible
criminal charges against him, the officer did not attempt to inform Chase of
the consequences of refusing the blood-alcohol test pursuant to 29-A
M.R.S.A. § 2521(3) (Supp. 2000),{1} and Chase never actually or impliedly
consented to the test. 
	[¶4]  Chase was indicted by a grand jury for aggravated assault, Class B,
see 17-A M.R.S.A. § 208(1)(A) (1983); aggravated operating under the
influence, Class C, see 29-A M.R.S.A. § 2411(6) (Supp. 2000); and operating
after habitual offender revocation, Class C, see 29-A M.R.S.A. § 2557(1)
(Supp. 2000).  He pleaded not guilty to all three charges and moved to
suppress the results of the blood-alcohol test.  Following a testimonial
hearing, the court excluded the results of the test.{2}  The State appeals with
the written approval of the Attorney General as is required by 15 M.R.S.A.
§ 2115-A(5) (Supp. 2000).
A.  The Informed Consent Statute

	[¶5]  The State contends that the court erred as a matter of law in
excluding the results of Chase's blood-alcohol test on the basis of the
officer's failure to give the informed consent warnings to Chase.  The facts
relevant to the motion are not disputed here.  We review de novo the legal
conclusions of the court on a motion to suppress.  State v. Ullring, 1999 ME
183, ¶ 8, 741 A.2d 1065, 1067.  
	[¶6]  The Legislature has unequivocally established the duty of every
driver to submit to a blood-alcohol test on probable cause to believe that he
is operating a vehicle under the influence.  29-A M.R.S.A. § 2521(1) (1996). 
Serious consequences are imposed upon those drivers who refuse to submit
to a test.  See 29-A M.R.S.A. §§ 2411 (5)(A)(3)(b), 2521(3) (Supp. 2000).  It
is precisely because the consequences of a failure to cooperate can have such
significant effects on the driver's life that the Legislature has required
persons suspected of operating under the influence to be protected from
unknowingly triggering those consequences.
	[¶7]  Thus, the informed consent warnings are structured to inform
the driver that he has a duty to take the test and that his failure to cooperate
will result in serious sanctions.  They are not intended to provide a driver
with the choice of taking or refusing a blood-alcohol test.{3}  This conclusion
is reflected in the legislation in two ways.  First, consistent with its purpose
of warning the driver of the consequences of his actions, the refusal
sanctions may not be imposed against a defendant unless the defendant has
first been warned that his or her refusal will result in such consequences. 
29-A M.R.S.A. § 2521(3) (Supp. 2000); see also 29-A M.R.S.A. 2431(3)
(1996).  Second, the informed consent laws explicitly prohibit the courts
from excluding actual test results based solely on the failure to administer
the informed consent warning.  29-A M.R.S.A. §§ 2521(4), 2431(1) (1996). 
"A test result may not be excluded as evidence in a proceeding before an
administrative officer or court solely as a result of the failure of the law
enforcement officer to comply with the notice of subsection 3."  29-A
M.R.S.A. § 2521(4) (1996).  Similarly, 29-A M.R.S.A. § 2431(1) provides:
1.  Test results.  Test results showing drug concentrations or
blood-alcohol level at the time alleged are admissible in
evidence.  Failure to comply with the provisions of sections 2521
and 2523 may not, by itself, result in the exclusion of evidence
of blood-alcohol level or drug concentration, unless the evidence
is determined to be not sufficiently reliable.
29-A M.R.S.A. 2431(1) (1996).
	[¶8]  In sum, limitations on the use of evidence of the refusal are
tailored to address those circumstances in which a defendant does not
cooperate in obtaining evidence of his blood-alcohol level or otherwise fails
to take the test.  With an intended purpose of protecting drivers from
unwittingly incurring the more draconian penalties attendant to a refusal,
the informed consent laws simply do not speak to the admissibility of a test
that has, in fact, been completed.{4} 
	[¶9]  Recognizing this impediment to his argument, Chase also
contends that the officer committed other errors independently requiring
suppression of the test results, including: (1) the officer's mistaken reliance
on section 2522;{5} (2) the officer's failure to afford Chase an opportunity to
request that a physician draw his blood; and (3) the officer's failure to
inform Chase that his blood was taken for criminal investigatory purposes. 
	[¶10]  We conclude that no basis alleged by Chase is sufficient to
warrant exclusion of Chase's blood-alcohol test results by itself, nor are all
the bases alleged cumulatively sufficient.  Although Chase was not afforded an
opportunity to request that a physician draw his blood as he should have
been pursuant to section 2521(2),{6} section 2431(1) specifically forbids the
exclusion of test results solely because of a failure to comply with the
provisions of section 2521.  29-A M.R.S.A. § 2431(1) (1996). 
	[¶11]  Neither is exclusion the appropriate remedy for the officer's
failure to inform Chase that his blood was being taken for a criminal
investigatory purpose.  Chase encourages us to conclude that when an officer
fails to tell an OUI arrestee that a blood-alcohol test is being administered
for criminal investigatory purposes, the exclusionary remedy for those test
results is somehow implied in the collection of statutory provisions
regarding blood-alcohol tests.  We are unpersuaded by this argument.  
	[¶12]  Legislative policy strongly favors the admission of reliable blood-
alcohol tests, and we have long recognized this policy.  "We have previously
stated . . . that 'the Legislature has established a firm general policy of
admissibility of blood-alcohol tests.'"  State v. Baker, 502 A.2d 489, 494 (Me.
1985) (quoting State v. Adams, 457 A.2d 416, 419 (Me. 1983)).  The State's
interest in eradicating drunk drivers provides ample support for this policy. 
State v. Roche, 681 A.2d 472, 475 (Me. 1996).  
	[¶13]  Finally, we note that when the Legislature has concluded that
the exclusion of evidence relating to driver intoxication is required, it has
explicitly provided for such exclusion, such as the exclusion of a refusal
when the defendant has not been notified of the consequences of refusing. 
See 29-A M.R.S.A. § 2521(3).  On the facts before us, the statute neither
provides for any duty to inform of an investigatory purpose, nor for the
exclusion of test results for failure to so inform, and we will not infer such a
duty or a remedy from these statutory provisions. 
B.  Constitutional Concerns
	[¶14]  The court found that no constitutional violation had occurred in
the officer's treatment of Chase at the hospital, and Chase concedes that his
motion to suppress was not granted on any constitutional basis.  To the
extent that Chase continues to argue that constitutional protections should
result in the suppression of the test results on these facts, we conclude
otherwise.  Although a blood test does constitute a search that normally
requires a warrant based on probable cause, see Schmerber v. California, 384
U.S. 757, 767, 770 (1966), no Fourth Amendment violation occurred here
because the police had probable cause to believe that Chase was operating
under the influence, and the exigent circumstance of a depleting blood-
alcohol level excepted Chase's case from the requirement of a warrant.  Id.
at 771; Baker, 502 A.2d at 493.  Neither did the withdrawal of blood without
Chase's consent violate his Fifth Amendment right of due process, his Fifth
Amendment privilege against self-incrimination, or his Sixth Amendment
right to counsel.  See Schmerber, 384 U.S. at 759-72; State v. Allen, 485
A.2d 953, 956 (Me. 1984).  Therefore, the court correctly concluded that no
constitutional basis existed to require the suppression of Chase's blood-
alcohol test results.
	[¶15]  Because no constitutional basis existed for the suppression of
the test results and because the informed consent laws protect the
defendant from the consequences of an unknowing refusal but not from the
admissibility of a reliable test, the court erred in suppressing the results of
Chase's blood-alcohol test.
	The entry is:
The order granting Chase's motion to suppress
his blood-alcohol test results is vacated and the
matter is remanded to the Superior Court for
entry of an order denying Chase's motion to
Attorneys for State: G. Steven Rowe, Attorney General Donald W. Macomber, Asst. Attorney General (orally) 6 State House Station Augusta, ME 04333-0006 Geoffrey A. Rushlau, District Attorney Leane Zainea, Deputy Dist. Attorney P O Box 188 Belfast, ME 04915 Attorney for defendant: Christopher K. MacLean, Esq. (orally) MacLean & MacLean, LLC P O Box 1256 Camden, ME 04843
FOOTNOTES******************************** {1} . Section 2521(3) provides: 3. Warnings. 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 told that the refusal or failure will: A. Result in suspension of that person's driver's license for a period up to 6 years; B. Be admissible in evidence at a trial for operating under the influence of intoxicants; and C. Be considered an aggravating factor at sentencing if the person is convicted of operating under the influence of intoxicants that, in addition to other penalties, will subject the person to a mandatory minimum period of incarceration. 29-A M.R.S.A. § 2521(3) (Supp. 2000). {2} . Chase also argued that the police questioned him without administering a Miranda warning, see Miranda v. Arizona, 384 U.S. 436 (1966), and that the police lacked probable cause to arrest him. The court concluded that no Miranda violation had occurred and that the officers did have probable cause to arrest. Those conclusions are not challenged here. {3} . These warnings are necessitated in part because the method of testing most often used throughout the state, usually a form of breath test, cannot be completed without the cooperation of the driver. {4} . By 1997 amendment, the language of this subsection was changed from, "Before a test is given, the law enforcement officer shall inform the person that failure to submit to and complete a test will . . ." to the current version. P.L. 1997, ch. 357, § 1. Therefore, although the prior version of the statute required that officers inform all OUI arrestees of the consequences of refusal prior to administering the test, that language has since been amended to provide merely that refusal to complete a test may not result in additional consequences unless the warning is first given. {5} . Pursuant to 29-A M.R.S.A. § 2522, police officers must administer a blood-alcohol test as soon as practicable after a motor vehicle accident if there is probable cause to believe that a death has or will occur as the result of the accident. 29-A M.R.S.A. § 2522 (1996). Section 2522 does not contemplate the administration of the informed consent warning prior to giving the test. The court found, however, that the police lacked probable cause to believe that a death had or would occur as the result of the accident in which Chase was involved, and therefore that section 2522 did not shield them from the provisions of the informed consent statute. Nevertheless, the remedy for the officer's mistaken reliance on section 2522 is simply that section 2521 applies to the circumstances of the case instead, not exclusion of the test results altogether. See 29-A M.R.S.A. 2431(3) (1996). {6} . "For a blood test the operator may choose a physician, if reasonably available." 29-A M.R.S.A. § 2521(2) (1996).