State of Maine v. Murphy

STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss CRIMINAL ACTION DOCKET NO. CR-05-612

STATE OF MA1

v. N DEFENDANT'S TO SUPPRESS JOYCE MURP

Defendant

The findings of fact made on the record at the conclusion of the hearing are incorporated into h s order by reference.

ARREST AND BLOOD ALCOHOL TEST

"The probable sai-~sestandard fnr ren,l-riri_rlga person to take a h!n~)rla!cch~)! test has a very low standard." State v. Webster, 2000 ME 115, ¶ 7, 754 A.2d 976, 977-78. The court concludes that the officer had sufficient probable cause to believe the defendant was operating the car whle h s senses were "impaired however slightly" or "to any extent" by the alcohol he admitted drinlung. See id., 2000 ME 115, ¶ 7,754 A.2d at 978. The arrest and request that the defendant submit to a blood alcohol test were justified on this record.

DUE PROCESS

After the defendant was arrested and taken to the police station, the officer told her that if she did not submit to a blood alcohol test, she would go to jail overnight and that if she submitted to a test, she could go home. Based on that information, the defendant submitted to a test. But for the threat of immediate incarceration, she would have signed the implied consent form and refused to take a test.

When a defendant argues that her right to due process has been violated, the

procedures used by the police are reviewed "to determine if the conduct 'offends the

community's sense of justice, decency, and fair play."' State v. Bavouset, 2001 ME 141,

¶7, 784 A.2d 27, 30 (quoting Roberts v. State, 48 F.3d 1287, 1291 (1st Cir. 1995)). A

determination of whether state action violates a defendant's right to due process

involves consideration of "(1)the private interest that will be affected by the State's

action; (2) the risk of an erroneous deprivation of that private interest along with the

probable utility of substitute or added safeguards; and (3) the government's interest in

adhering to the existent procedure." State v. Cote,.1999ME 123, ¶ 12, 736 A.2d 262, 265.

The officer's action affected the defendant's liberty interests, whch deserve

substantial due process protection. See_ Roberts, 48 F.3d at 1292-93; see also State v.

Stade, 683 _A_ 3d 164, I66 (Me 1996) (loss of license is property interest worthy of dilp

process protection). The risk of an erroneous deprivation of her liberty is present. If the

defendant refused to submit to the test and the State subsequently declined to prosecute - or the defendant was acquitted, she would have beenincarcerated only because of !he

officer's policy. The government's interest in preventing impaired drivers from

operating on Maine's hghways and in maintaining the legislatively mandated implied

consent procedure can be protected without adding additional penalties beyond those

imposed by the Legislature. See id.

The Law Court has concluded that "[alllowing the suspect to choose whether to

submit to testing was 'a matter of grace' bestowed by the state legisiature and, thus, not

subject to constitutional protections." Cote, 1999 ME 123, q[ 10, 736 A.2d at 265. The

officer's action in h s case, however, affected the defendant's ability to choose and

added the immediate consequence of incarceration for a refusal that has not been

mandated by the Legislature. Cf. State v. Brann, 1999 ME 113, ¶lo, 736 A.2d 251, 255 (no evidence to suggest that defendant was "tricked or coerced into submithng to test"). The facts of h s case are at least as troublesome as those in State v. Stade, in whch the Court determined that the officer's providing false information and failing to read the implied consent form to the defendant rendered the admission of the test result fundamentally unfair. See Stade, 683 A.2d at 166. Under the circumstances of h s case, h s court concludes that the officer's action was fundamentally unfair and offensive to the community's sense of fair play.

The entry is

The Defendant's Motion to Suppress the test result is GRANTED. The remainder of the Motiyn is DENIED

Date: February 26, 2006

~ustice,Superior d u r t

CLERK'S OFFICE

3up~rin@ rfuriI 97 Hammond Street Bangor, Maine 04401 207-561-2300

ATTORNEY FOR THE STATE

MICHAEL ROBERTS DEPUTY DISTRICT ATTORNEY OFFICE OF THE DISTRICT ATTORNEY 97 HAMMOND ST BANGOR ME 04401

ATTORNEY FOR THE DEFENDANT

JEFFREY SILVERSTEIN, ESQ 145 EXCHANGE ST BANGORME 04401