Posted by Edmund R. Folsom, Esq., March 9, 2017

Recently, in State v. Boyd, 2017 ME 36, the Law Court flatly rejected the idea that Maine’s “implied consent” law can form grounds for a finding that, by driving in Maine, a person  consents to the warrantless taking of his or her blood for testing in an OUI case.  As background, in Schmerber v. California, 384 U.S. 757 (1966), the U.S. Supreme Court made clear that the taking of a blood sample for analysis in an OUI case is a “search” for purposes of the 4th Amendment to the U.S. Constitution.  As a general rule, police are not allowed to conduct a 4th Amendment search without a search warrant.  If police do not have a search warrant, the search must be justified by one of the recognized exceptions to the requirement of a warrant.  One such exception is the existence of probable cause combined with “exigent circumstances.”  Another such exception is consent.  When a person gives valid consent to a search, a search conducted within the scope of the consent does not violate the 4th Amendment.   For a long time, Schmerber was widely understood to say that exigent circumstances were baked into all OUI cases, because of the biological fact that bodily processes constantly eliminate blood alcohol.  More recently, in Missouri v. McNeely, 569 U.S. __, 133 S.Ct. 1552 (2013), the U.S. Supreme Court ruled that exigent circumstances are not baked into every OUI case and that, although bodily processes always eliminate alcohol, each case must be assessed on its own facts, to determine whether exigent circumstances justified dispensing with the search warrant requirement in that particular case.  McNeely brings us back to presuming the need for a search warrant unless a recognized exception to the requirement can be demonstrated in the particular case.

In State v. Boyd, police arrested Boyd and took a blood sample from him without his express consent.  Boyd sought to suppress the test results.  He argued that he did not consent to the blood draw; that he instead merely went along with it.  The judge who heard the motion to suppress agreed with Boyd.  The motion judge apparently did not doubt the existence of probable cause to arrest Boyd for OUI, but he found that there were no exigent circumstances to justify a warrantless search.  The judge also found that Boyd’s acquiescence to the officer’s direction, command, or request that Boyd submit to the blood test did not amount to his voluntary consent.  The test result was suppressed. The State appealed.  On appeal, the applicable standard of review required the State to prove that the record from the suppression hearing compelled the judge to conclude that Boyd’s consent was voluntary.  The State did not pursue a claim that the probable cause and exigent circumstances exception applied; instead they pursued their appeal solely on the issue of consent.

Police are allowed to conduct a search or seizure even without probable cause if a person gives valid consent.  A search on the basis of consent is, however, only valid within the scope of the consent given, and if a person withdraws consent, any search or seizure after that point is not valid as a consent search.  In Boyd, the State rested its theory on appeal in part on Maine’s so-called “implied consent” statute.  In some other states, implied consent statutes declare that anyone who drives there impliedly consents to the taking of a blood sample for a DUI investigation.  Some courts have concluded that the “implied consent” that these statutes create (actually a legal fiction) has the same effect as if police asked a person whether he or she minded submitting to a blood test and the person said “Sure, have at it.”  In Boyd, the State essentially argued that Maine’s “implied consent” statute similarly creates consent that remains in effect unless and until the person withdraws it.  Because Boyd did not affirmatively refuse to submit to the taking of his blood sample, the State theorized that he did not withdraw his “implied consent,” so his “implied consent” remained valid, justifying the taking of his blood sample.  The Law Court rejected this argument.

The Law Court pointed out that Maine’s statute governing a driver’s obligation to submit to a blood test for an OUI investigation, 29-A M.R.S. §2521, wears the label “implied consent” in its title, (“Implied consent to chemical tests”) but does not actually assert that Maine drivers impliedly consent to blood tests.  Instead, the statute states only that a person “shall submit to and complete” a chemical test if there is probable cause to believe the person has operated under the influence.  At one time, there was a Maine statute that stated drivers were “deemed” to consent to testing on probable cause of OUI, but that statutory language was eliminated in 1982.  At this point, 29-A M.R.S. §2521 creates an obligation to submit, but it does not create any fictional implied consent that remains in effect unless and until it is withdrawn.  Because of this, unless Boyd actually, in fact, consented to the taking of his blood sample, the search could not have been justified under the consent exception to the search warrant requirement.  The motion judge found that the State did not prove that Boyd actually gave valid consent, as opposed to having merely acquiesced to a police show of authority.  There was nothing in the record to show that the motion judge was compelled to conclude otherwise, so the State loses.  The motion judge’s suppression order is affirmed.  Boyd puts an end to any attempts by the State of Maine to claim that all those who drive here consent to the taking of a blood sample in an OUI case by virtue of 29-A M.R.S. §2521.

Next up before the Law Court:  Is “consent” to a blood draw valid if a person submits because he or she is told, through reading of “implied consent” warnings, that failing to submit will result in a mandatory minimum jail sentence upon conviction of OUI?  Implied consent warnings were not read to Boyd, so this was not an issue in his case.  The recent U.S. Supreme Court case, Birchfield v. North Dakota, 579 U.S. __. 136 S. Ct. 2160 (2016) tells us that the State cannot legitimately threaten to prosecute and incarcerate a person for the crime of refusing to submit to the taking of a blood sample, because a person has the right not to consent to the search.  If consent to a blood test is coerced by the threat of prosecution and a jail sentence for withholding consent, any purported consent that results from the coercion is not valid.  Unlike North Dakota, Maine does not have a distinct crime of refusing to submit to a test.  Instead, Maine imposes a mandatory minimum jail sentence on the underlying OUI charge itself, if a person is proven to have failed to submit to or complete a test.  Is there any difference?  No, no… not:  Can the two be distinguished in some superficial, fig-leafy sort of way?  Is there a 4th Amendment difference?