MAINE OUI: THE DUTY TO REQUEST AN ALCOHOL TEST. (Article)

MAINE OUI: THE DUTY TO REQUEST AN ALCOHOL TEST.

Posted by Edmund R. Folsom, Esq.,

Date: May 15, 2018

DISCLAIMER: The following is not legal advice. It is not intended as legal advice and should not be taken as legal advice. It is offered in the way of aiding understanding, only.

Background.

Melevsky v. Secretary of State, 2018 ME 46, creates, in at least some circumstances, an obligation for a person under arrest for OUI to affirmatively seek a breath test to determine his or her alcohol level. When this obligation arises, a person who fails seek a breath test will suffer the consequences of failing to “submit to and complete a test.”

People are frequently caught off-guard by Maine’s “implied consent” law. For some reason, it’s tough for a lot of people arrested for OUI to quickly grasp that their license will really be suspended for an extra 275 days for a first-offense test refusal, in addition to the 150-day license suspension they’ll get for an OUI conviction. Some people think they should be able to talk to a lawyer before deciding whether to take a test, but they have no right to do that. Some people aren’t sure they can trust the police officer who is attempting to gather evidence against them to tell them the truth. They don’t really believe what the officer tells them when the officer reads “implied consent” warnings. As a general proposition, if you are under police investigation it’s a good idea not to believe everything the police tell you. Police are trained to bend the truth and sometimes to outright lie as an approved tactic to get a person to talk. Police detectives often do exactly that. But while skepticism in the face of an effort to interrogate is wise, skepticism in the face of implied consent warnings is a bad instinct. That’s because (for the most part) what the implied consent warnings say is true. For some reason, it is conventional wisdom among people from Massachusetts that they should never take a breath test if they are arrested for OUI. I think it has something to do with the unique protections they enjoy under the Massachusetts Constitution, but whatever the source of conventional Massachusetts wisdom, it tends to be unwise in Maine. The bottom line is that being under arrest for OUI, being confronted with an officer’s demand or request to take a test for alcohol or drugs, and being read implied consent warnings by a police officer, is an inherently disturbing and disorienting experience. The police have you in handcuffs. They get to choose the type of test to give you. You are quickly told you have a duty to take the test they have chosen (nearly always a breath test) and that not taking it will lead to a particular set of consequences. If you tell the officer you will not take the officer’s chosen test, you will suffer those consequences If you fail to blow an adequate sample for the Intoxilizer to produce a result, the officer will note that you failed to complete the test, and you will suffer the consequences. When arrested for OUI, you can in fact be penalized for refusing to provide evidence against yourself. It can all be a bit disorienting to free citizens who think they have a right not to provide evidence against themselves and a right to consult counsel before deciding whether or how much to cooperate in a police investigation against them.

The Facts of State v. Melevsky.

Walter Melevsky was arrested for OUI and was taken to the York County Jail for an Intoxilizer breath test. At the jail, while the arresting Maine State Trooper explained how the Intoxilizer worked, Melevsky stated, in terms the Law Court characterized as “unequivocal,” that he would not take a breath test. Melevesky at ¶3. After Melevsky’s “unequivocal” declaration that he would not take a test, the officer read Melevsky “‘the refusal form (green form).’” Id. (As a matter of fact, the green-colored refusal form is the form from which police read people so-called implied consent warnings, but the Law Court does not treat it as such in Melevsky). After the trooper read this form to Melevsky, Melevsky “indicated a willingness to take a breath test but not a blood test.” Id. Although the implied consent law provides that the police officer gets to decide which type of test is given, and that the officer is to give the person a breath test unless the officer decides a breath test is unreasonable, the trooper did not insist that Melevsky take a breath test. Instead, because Melevsky indicated he was willing to take a blood test, the arresting trooper decided to take Melevsky to a local hospital to have a blood sample drawn. Melevsky at ¶4. But before heading to the hospital, the officer asked Melevsky if he was actually going to take a blood test when they got there. Id. Melevsky reportedly answered “with words to the effect of ‘I don’t know. I might, might not. Might change my mind. I might refuse.’” Id. At that point, the trooper told Melevsky he was going to treat Melevsky as having refused a test, and the trooper read the “implied consent” warnings to Melevsky (for the second time if you count the reading of the green refusal form discussed in the police report in the record, and in the Law Court’s recitation of facts, but for the first and only time if you credit the officer’s testimony and the Hearings Examiner’s apparent findings). Id. After reading the warnings, the trooper asked Melevsky to sign on the line stating that he was refusing a test. Id. Melevsky refused to sign, and with that the process was finished. Id.

The implied consent warnings that were read to Melevsky are as follow:

By operating or attempting to operate a motor vehicle in this State you have a duty to submit to and complete chemical tests to determine your alcohol level and drug concentration.
I will give you a breath test unless I decide it is unreasonable, in which case another chemical test will be given. If you are requested to take a blood test you may ask that a physician perform the test if a physician is reasonably available.
If you fail to comply with your duty to submit to and complete chemical tests, your driver’s license or permit or right to apply for and obtain a license, will be suspended for a period of up to 6 years. Your failure to submit to a chemical test is admissible against you at any trial for operating while under the influence of intoxicating liquor or drugs. 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.
If you are 21 years of age or older, an additional 275 days of suspension will be imposed if you had a passenger under 21 with you in the vehicle at the time of the offense. If you are less than 21 years old, an additional 180 days of suspension will be imposed if you had a passenger under 21 with you at the time of the offense. Form DI-140 Rev. 01/2012

Below these warnings is a box containing the following words: “I have been advised of the consequences listed in paragraphs 3 and 4 above of failure to comply with the duty to submit to and complete a chemical test at the request of an officer and DO NOT WISH TO SUBMIT TO A TEST.” Next to this is a signature line, underneath which are the words, “Signature of Person Refusing Test.”

These warnings are drawn from Maine’s “implied consent” law, 29-A M.R.S. §2521. In pertinent part, that law provides as follows:

1. Mandatory submission to test. 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.

2. Type of test. A law enforcement officer shall administer a breath test unless, in that officer’s determination, a breath test is unreasonable.

If a breath test is determined to be unreasonable, another chemical test must be administered in place of a breath test.

For a blood test the operator may choose a physician, if reasonably available.

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 of up to six 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.

8. Issues. If a hearing is requested in accordance with section 2483, in addition to specific issues required by a specific offense, the scope of the hearing must include whether:

A. There was probable cause to believe the person operated a motor vehicle while under the influence of intoxicants;

B. The person was informed of the consequences of failing to submit to a test; and

C. The person failed to submit to a test. 29-A M.R.S.A. §2521(1)-(3), (8).

Melevsky’s Administrative Hearing.

Although there were at least 3 potential issues at Melevsky’s hearing, Melevsky contested only the third issue, above — whether he failed to submit to a test. Melevsky at ¶8. The term “failed to submit to a test” is defined elsewhere in the statutes, as follows:

Failure to submit to a test, fails to submit to a test or failed to submit to a test. “Failure to submit to a test,” “fails to submit to a test” or “failed to submit to a test” means failure to comply with the duty to submit to and complete a chemical test under section 2521 or 2525.” 29-A M.R.S. §2401(5)

At the administrative hearing, the testimony on the issue of Melevsky’s refusal or failure to submit was as follows:

Hearing Officer: All right. And tell me how you proceeded with reading him implied consent at the York County Jail? Let me ask you this, did he indicate to you that he was not going to take a chemical test?

Trooper Darcy: Yes. I started reading him the instruction to the — I started giving him the instructions on how the Intoxilyzer [sic] works, and he informed me that he was going to refuse the breath test.

Hearing Officer: All right. But he indicated to you he was willing to take a blood test?

Trooper Darcy: At one point he said he would take a blood test, but not a breath test.

Hearing Officer: All right. And then how did things proceed from there?

Trooper Darcy: So he said that, which there was no reason that he couldn’t take a breath test. He wasn’t bleeding from the mouth or anything like that. I made contact, or I had the (indiscernible) make contact with the hospital in Sanford to see if they did have a blood kit that would do the draw, and they confirmed they did. And before leaving the jail to go back to the hospital, I asked Walter is [sic] he was actually going to submit to the test or not and he said that he wasn’t sure if he was going to refuse that when we got there or not.

Hearing Officer: And what happened after that?

Trooper Darcy: Then – so he said he wasn’t sure if he was going to refuse or not, and at that point I could tell that he was just delaying and messing with me, so I told him I was going to put him down as a refusal. I read him the form, and he refused to sign the form as well.

Hearing Officer: How many times did you read the implied consent language to him?

Trooper Darcy: I read the form once.

Hearing Officer: You read the form once. It was after his statement that he was not sure if he was going to take the test, the blood test?

Trooper Darcy: Correct.

Hearing Officer: And that’s when you read this to him?

Trooper Darcy: Correct.

Hearing Officer: All right. And did you present it to him to sign?

Trooper Darcy: I did, yes.

Hearing Officer: And he refused to sign it?

Trooper Darcy: He did.

Hearing Officer: So is that your handwriting here on the signature Line on Exhibit 1, “refused”?

Trooper Darcy: Yes.

Hearing Officer: Okay. Counsel, do you have questions? (T. 7-10)

Ultimately, the Hearings Examiner found that Melevsky failed to submit to a test, explaining his reasoning as follows:

Thank you. I think it’s close, but I do think it’s a refusal,

and I’ll tell you why I think it is, so I’m going to deny the

petition. I think it is because of the sequence as testified,

and the report of the officer is that Mr. Melevsky says

he wants blood and the trooper is about to take him for

the blood test and then he says he’s not sure if he’s going

to take it. It’s at that point that the trooper reads him the

implied consent, and I think that’s informing him of his

duty to take this test, and he did not indicate that he would

then take the test after that. I think this would be different

if after he was read that implied consent he said something

like, “I’m going to take it. Yes, I’m going to take this test.

I’ve been read — ,” you know, after he’s been read that.

And he’s failed to submit after being informed of those

consequences. So unless there is some evidence – I don’t

know if there is a video or something like that. If there’s

something that is inconsistent with what this trooper has

testified to about Mr. Melevsky’s statements after being

read implied consent, you know, in that kind of situation

I’ll reopen it for the evidence, but I’m going to deny the

petition today, and Mr. Melevsky has up to 30 days from

today to appeal that decision. (T. 15-17).

On that basis, the Hearings Examiner upheld Melevsky’s 275-day suspension for a test refusal. From the Hearings Examiner’s remarks it appears that: (1) the Hearings Examiner credited the trooper’s testimony that he read Melevsky implied consent only once, after Melevsky equivocated about a blood test; (2) the Hearings Examiner did not find as a fact that the trooper read Melevsky implied consent in connection with the trooper’s explanation of the Intoxilizer process; (3) once the trooper read Melevsky the implied consent warnings, Melevsky had a “duty to take” a test (perhaps as distinct from a “duty to submit” to one); (4) if Melevsky had told the trooper he would take a test after the trooper read him implied consent warnings, the Hearings Examiner might not have found that Melevsky failed to submit to a test; and (5) once implied consent warnings were read to Melevesky it was incumbent on Melevsky to affirmatively reach out and express his willingness to take a test — his failure to do so constituted a refusal. Any way you slice it, the Hearings Examiner placed a burden on Melevsky, once implied consent warnings were read, to declare his willingness to take a test or else be deemed to have failed to submit to one. The trooper did not ask Melevsky whether he would take a test (either breath or blood) after Melevsky was read implied consent. Nor did the trooper attempt to administer a test to Melevsky after that point, even though the implied consent warnings that the trooper read to Melevsky informed Melevesky, in prospective terms, “I will give you a breath test unless I decide it is unreasonable, in which case another chemical test will be given.” 29-A M.R.S. 2521(3) [Emphasis added].

The Appeal.

Melevsky appealed the Hearings Examiner’s decision to the Superior Court, where a Superior Court Justice vacated it, holding that the decision was erroneous as a matter of law. Melevsky at ¶5. The Secretary of State appealed the Superior Court’s decision to the Law Court. On appeal to the Law Court, the issue was whether the Hearings Examiner’s decision was in fact erroneous as a matter of law or was not supported by substantial evidence in the record. Melevesky ¶6. Melevsky argued that he did not fail to submit to a test within the meaning of the “implied consent” statute, because he was never actually given an opportunity to submit to a chemical test. Melevesky at ¶8. The Law Court vacated the Superior Court judgment and remanded the case for entry of an order upholding the Hearings Examiner’s decision.

The Superior Court cited State v. Pineau, 491 A.2d 1165, 1168 (Me. 1985) and State v. Adams, 457 A.2d 416, 421 (Me. 1983) for the proposition that, “In order to be deemed to have refused a chemical test, one ‘must affirmatively and actually refuse the test by word or conduct.’” State v. Melevsky, YORSUP AP-17-0010, p. 3 (Me. Sup. Ct., Yor. Cty., July 5, 2017). The Superior Court found that Melevsky “clearly did not verbally refuse; and, in light of his earlier equivocation and the fact that a test was not imminent, Melevsky’s silence and inaction after being read the consequences for refusal does not constitute an objective manifestation of conduct amounting to a refusal.” Id. The Law Court called the Superior Court’s citation to State v. Adams “misplaced and to no avail,” explaining that, because there was no indication in the record “that Melevsky did not understand the consequences of refusing a test … [his] election not to withdraw his earlier unequivocal refusal of the breath test even after being read the implied consent form…clearly constituted a ‘fail[ure] to submit to and complete a test.’” Melevsky at ¶12. In the Law Court’s view, then, Melevsky’s failure to submit to and complete a test did not consist of Melevsky’s unequivocal pre-warning refusal to take a breath test, itself, but rather Melevsky’s “election not to withdraw” that pre-warning refusal. Melevsky, ¶¶11-12. This is consistent with the Hearings Examiner’s conclusion that Melevsky refused to submit by not affirmatively indicating a willingness to take a test after implied consent warnings were read. Melevsky establishes that, at least when a person has clearly verbalized a desire not to take a test, if the officer reads the person implied consent warnings, the person fails to submit to a test by not expressing a willingness or desire to take a test, even if the officer neither asks the person to take a test nor attempts to administer a test after reading the warnings. In reaching this result, the Law Court did not discuss two important legal issues raised by the facts of Melevsky: (1) What is the meaning of the statutory duty to “submit to” a test, and (2) what does it mean that neither a person’s refusal nor failure to submit to a test may be used to impose a refusal license suspension unless the person has “first been told” the refusal or failure will result in that consequence? Although Melevsky does not discuss either issue, by implication it establishes that the duty to “submit to” a test is essentially the duty to “take” a test that includes the duty, at least in some circumstances, to actively seek to have one administered. Melevsky also appears to establish that it is unnecessary for implied consent warnings to precede a failure to submit to a test, as long as those warnings are imparted at some point before the consequences are imposed.

What does it mean to refuse to “submit to” a test for alcohol level, etc.?

The implied consent statute does not, by its plain terms, impose a broad duty on drivers to “take” and complete a test for alcohol level, drugs or drug metabolites. Instead, it imposes a duty to “submit to” and complete such a test. 29-A M.R.S. §2521(1). What does it mean to “submit to” a test? The Merriam Webster Dictionary defines “submit” as, “to yield oneself to the authority or will of another: surrender … to permit oneself to be subjected to something.” The Collins English Dictionary provides the following definition: “to yield to the power, control, etc. of another or others; give in … to allow oneself to be subjected (to treatment, analysis, etc.).” These definitions reflect the common understanding of the term “submit,” which presupposes an assertion of authority to which a person “submits,” by yielding, going along, giving in, etc. In the context of testing for alcohol in an OUI case, under the ordinary definition of the term, a person submits to the Intoxilizer test when the officer offers the Intoxilizer mouthpiece to the person and the person blows into it adequately to complete a test, or when the officer requests or demands that the person allow a blood sample to be taken and the person acquiesces to the request or demand. Yet Melevsky establishes that a person might fail to submit well before those points are reached, when an officer in fact has not presented the person with either a breath tube or the prospect of an imminent needle stick. Absent a statement of refusal to take a test, it requires a strange construction of the term “submit to,” to hold that a person failed to “submit to” a test that was never offered or demanded. But when a test is offered or demanded, and when a person does fail to submit to it, or when a person does expressly refuse to take a test even before it is offered or demanded, doesn’t section 2521(3) have something to say about the required timing of the refusal or failure to submit in relation to the giving of implied consent warnings?

What does it mean that “[n]either a refusal to submit to a test nor a failure to complete a test may be used [to impose a license suspension, etc.] unless the person has first been told that the refusal or failure will…[result in a license suspension, etc.]?”

To recap, Melevsky and 29-A M.R.S.A. §2521(1) tell us that the duty to submit to and complete a test for alcohol, drugs or drug metabolites arises when an officer has probable cause to believe a person has operated under the influence. That means the duty arises well before a person might be aware of it. Also, although the statutory duty is to “submit to” a test, Melevesky suggests that a person might be deemed to have failed to submit to and complete a test for not having affirmatively sought or otherwise expressed a willingness to take one, at least in some circumstances. Still, even when a person fails to submit to and complete a test, the refusal or failure to submit may not be used to impose a license suspension, or as evidence against the person at an OUI trial, or to impose a mandatory minimum license suspension upon conviction of OUI, “unless the person has first been told that the refusal or failure will” result in those consequences. 29-A M.R.S.A. §2521(3). What does it mean that a refusal or failure to submit may not be used against the person unless the person has “first been told” that the refusal or failure will carry those consequences? Does it mean that whatever words or conduct constitute a refusal or failure to submit may not be used against the person unless the words or conduct are preceded by implied consent warnings? Or does it mean only that whatever words or conduct that constitute a refusal or failure to submit cannot be used against the person unless implied consent warnings are conveyed at some point before refusal penalties are imposed?

The Law Court only determined that there was clear support in the record for the Hearings Examiner’s determination that Melevsky failed to submit to and complete a test within the meaning of 29-A M.R.S. §2521(5), which states, “The Secretary of State shall immediately suspend the license of a person who fails to submit to and complete a test.” See Melevsky, at ¶12. The Hearings Examiner did not deal with the timing of implied consent warnings in relation to Melevsky’s alleged refusal, and neither did the Law Court. Once the Hearings Examiner determined that Melevsky failed to submit, he simply ruled that Melvesky’s refusal license suspension was to remain in effect. When the Law Court decided that the Hearings Examiner did not err in determining that Melevsky failed to submit, this ended the Court’s inquiry, as well, and left Melevsky’s suspension undisturbed. Despite the fact that section 2521(3) clearly treats whether consequences may be imposed for failing to submit to and complete a test as an issue distinct from whether a person in fact failed to submit to and complete a test, neither the Hearings Examiner nor the Law Court dealt with the issue. Addressing it would have required discussing what it means that a failure to submit may not be used to impose a license suspension unless the person has “first been told” the failure to submit will be used for that purpose.

Maybe the Law Court did not expressly address the consequences question raised by Section 2521(3) because the issue was not expressly raised at the hearing or on appeal, which leaves the possibility that if it had been raised the Law Court might have found that, although Melevsky refused, his refusal could not be used to impose his license suspension. I don’t think that is the case, but if it is, counsel will need to take care to specifically raise and preserve the issue at a BMV hearing, because it is not an issue specifically set forth by statute. The statute that governs the issues at a refusal suspension hearings provides as follows:

8. Issues. If a hearing is requested in accordance with section 2483, in addition to specific issues required by a specific offense, the scope of the hearing must include whether:

A. There was probable cause to believe the person operated a motor vehicle while under the influence of intoxicants;

B. The person was informed of the consequences of failing to submit to a test; and

C. The person failed to submit to a test. 29-A M.R.S. §2521(8).

Note that subsection B only sets forth as an issue whether the person was informed of consequences, not the timing of such warnings. However, the order in which the issues are set forth in the statute might be taken to reflect the order in which matters are supposed to proceed between a police officer and an arrestee, that is: (1) the officer has probable cause to believe the person is under the influence, so (2) the officer informs the person of the consequences of failing to submit to a test, and (3) any failure to submit that occurs after that point is usable to impose consequences. However, as discussed below, Melevsky suggests that the Law Court might have no problem reversing the order of issues set forth in section 2521 (8)(B) and (C ). But then again, if the reason the Law Court did not deal explicitly with the section 2521(3) timing issue is that the issue was simply conflated with (and dealt with implicitly as part of) the refusal or failure to submit issue at each stage of the Melevsky case, it is important to examine what that tells us going forward. What was the timing of implied consent warnings in Melevsky? Did the warnings precede the words or conduct used to established Melevsky’s failure to submit, or were the warnings given after the words were uttered or the conduct occurred?

I assume the Law Court did not treat as fact that the trooper read Melevsky implied consent warnings when the Trooper read “the refusal form (green form)” to him. See Melevsky at ¶3. I make this assumption because if the Law Court had treated this as fact it could have ended the analysis at the point, immediately afterward, when Melevsky said he would not take a breath test but would take a blood test. More than 20 years ago, in State v. Butler, 667 A.2d 108 (Me. 1995), the Law Court declared that refusing to take a breath test while expressing a willingness to take a blood test constitutes a failure to submit to a test under 29-A M.R.S. §2521. Because the Court did not treat the initial reading of the green refusal form as a reading of implied consent warnings, we are left with a single reading of implied consent warnings, after Melevsky equivocated about taking a blood test at the nearby hospital.

A refusal or failure to submit to and complete a test must necessarily be manifested in words, actions or both. There has to be something that a person says, does or does not do that the State can point to as evidence of a refusal or failure to submit. In Melevsky, the Court said the certain something that Melevsky did or did not do or say was his, “election not to withdraw his earlier unequivocal refusal of the breath test even after being read the implied consent form.” Melevsky at ¶12. But Melevsky did not tell the trooper that he was going to stand by his pre-warning refusal to take a breath test. Nor did the trooper ask Meleveky if he would take a breath test, or mention a breath test, or present Melevsky with a breath test to take after reading implied consent warnings. If 29-A M.R.S. §2521(3) is taken to mean that a person’s words, actions or inaction constituting a failure to submit may not be used for the stated purposes unless implied consent warnings precede those words, actions or inaction, then Melevsky did not fail to submit to and complete a test. Although the Law Court characterized Melevsky’s inaction after the reading of implied consent warnings in positive terms – “Melevsky’s election not to withdraw” his earlier refusal — Melevsky took no action, either positive or negative, with regard to submitting to a test after that point. All Melevsky did was refuse to sign the refusal form which, if he had signed it would have caused him to acknowledge in writing that he was refusing to take a test (and just maybe, in fact, he was not refusing a test and so refused to make that declaration). In fact, standing on its own, what the Law Court characterized as “Melevsky’s election not to withdraw” his pre-warning refusal can have no evidentiary weight or meaning. Melevsky’s “election not to withdraw” his earlier refusal can only have meaning in relation to his earlier pre-warning refusal itself. If we excise that pre-warning refusal from the factual mix, Melevsky’s silence and inaction regarding a breath test, post-warning, was not a failure to withdraw anything. What the Law Court did here was allow the use against Melevsky of his pre-warning refusal of a breath test to suspend his license. That, in turn, means that if the Law Court considered the impact of 29-A M.R.S. §2521(3) at all, it did not construe it to require that implied consent warnings must precede whatever words or conduct are deemed to constitute a refusal or failure to submit. The only way 29-A M.R.S. §2521(3) might allow the use against Melevsky of his pre-warning refusal of a breath test is if it requires only that a person must be warned of the consequences of refusing to submit to a test at some point before the consequences are imposed, regardless whether the warning precedes or comes after the words or conduct deemed to constitute a refusal. Is this what the Legislature intended?

Is this what the Legislature Intended?

There is good reason to think the section 2521(3) requirement that the person must have “first been told” means that implied consent warnings must precede any words or conduct that the State intends to use to establish a person’s failure to submit. Before 29-A M.R.S. §2521 was amended in 1995, the former version of subsection 3 provided as follows:

3. Prerequisites to tests. Before a test is given, the law enforcement officer shall inform the person that failure to submit to and complete a test will:

A. Result in suspension of that person’s driver’s license for a period up to 3 years; and

B. be admissible in evidence at a trial for operating under the influence of intoxicants. 29-A M.R.S.A. §2521(3) (1993).

This was followed by subsection 4 of §2521, which provided, as follows:

4. Exclusion as evidence. 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 subsection 3. 29-A M.R.S.A. §2521(4) (1993)

Subsection 7 of §2521 at that time provided:

7. Decision. A suspension must be removed if, after hearing pursuant to section 2483, it is determined that the person would not have failed to submit but for the failure of the law enforcement officer to give either of the warnings required by subsection 3. 29-A M.R.S.A. §2521(7) (1993).

I refer to this predecessor version of section 2521 for a couple of reasons. First, when subsection 3 existed in this form, the overall scheme of §2521 made clear that: (1) a person had a duty to submit to and complete a test if there was probable cause to believe the person operated under the influence; (2) a law enforcement officer had the power to determine the type of test to be given; (3) before giving a test, an officer was required to inform the person of the consequences of failing to submit; (4) if a person actually took a test, the test result could not be excluded because of the officer’s failure to warn of the consequences of failing to submit; and (5) when a person failed to submit, the person’s license was to be suspended because of that failure. See 29-A M.R.S. §2521(1)-(4), (7) (1993). Nothing in subsection 3 spoke to what was to happen when a person failed to submit to a test but the officer failed to provide the warnings required by subsection 3. However, subsection 7 dealt with that, providing that if an unwarned person failed to submit to a test the suspension had to be rescinded if it was determined that the person would not have failed to submit but for the officer’s failure to give the warnings. The language of subsection 8, setting forth issues for an administrative refusal hearing, was identical to the language of the current statute, setting forth the same three issues for hearing in the same order. Under the current version of Section 2521, subtsection 8(B) continues to set forth as an issue whether, “The person was informed of the consequences of failing to submit to a test.” There was no need, under the 1993 version of the statute, for subsection 8(B) to expressly address at what point the person needed to be informed of the consequences of failure to submit, because subsection 3 already specified that implied consent warnings were to be given as a prerequisite to any test. The order in which the issues were set forth in subsection 8 further reflected that the statute contemplated implied consent warnings first. This statutory scheme resulted in the person being informed at the beginning of the process of the duty to submit and of the consequences of failing to submit, so any failure to submit would necessarily follow the warning of consequences. Also under this scheme, subsection 4 made clear that if the person actually took a test, the result could not be excluded solely because the officer failed to warn the person of the consequences of not taking one.

Back in 1993-1994, I was a Deputy D.A. in Cumberland County. Some police officers in Cumberland County questioned whether they really had to read implied consent warnings to people who were already willing to take a breath test. They asked me why they had to bother, given that subsection 4 said there were no consequences if they didn’t. I replied (in a memo, as I recall) that the statute required police officers to read implied consent warnings before giving a test. Given that police officers are law enforcement officers, it was, first of all, a good idea for them to follow the law. Just because there were no statutory consequences for not following the law did not mean their credibility might not suffer if they chose to ignore it. As I recall, I did not convince everyone. Some of the officers kept on cutting the same corner, which taught me that when police face no consequences for failing to follow the law, let alone procedures that don’t have the force of law, some officer will not bother to follow the law.

When 29-A M.R.S.A. §2521(3) was amended to its current form, it eliminated the requirement that an officer had to read implied consent warnings before giving a test. In place of that requirement, the new scheme stated explicitly that a person’s refusal to submit or failure to complete a test may not be used to suspend the person’s license, or as evidence against the person in an OUI trial, or to impose a mandatory minimum period of incarceration “unless the person has first been told” those things will happen. There is good reason to think the intent of this change was: (1) to relieve officers of the obligation to warn every person who was obviously going to take a test anyway of the consequences of not taking one; (2) while making clear that the consequences of failing to submit cannot be imposed unless the officer warns the person of the consequences before the person fails to submit. For some reason, subsection 4 remains in the statute to this day, even though it makes no sense in the context of current subsection 3. And, subsection 7 remains in effect, unchanged to this day, even though it is inapposite, because when an officer fails to warn a person as required by current subsection 3, the person’s failure to submit may not be used to suspend the person’s license for a refusal, at all. And then along came Melevsky… and now, who knows what any of it means anymore? Maybe it means an officer doesn’t have to follow any procedure to make a refusal suspension stick, other than to read the implied consent form to the person at some point — maybe even on the way out the door, after all else is said and done. In fact, if an officer does not read implied consent warnings at any point, would it be alright for the Secretary of State to send a letter to the person, just before imposing a license suspension, informing the person of the consequences of failing to submit to a test? If all section 2521(3) requires is that the person be informed (by someone) of the consequences of failing to submit at some point before the consequences are imposed, why not?

What Might Be Done To Fix This Muddled Mess?

I have an idea to restore some modicum of due process to the process and to extricate us from the murk, mire and loosey, goosey law enforcement sloppiness that surely will follow Melevsky. The Law Court has repeatedly pointed out that the “implied consent” statute does not actually depend on anything resembling consent, actual or implied. See Melevsky at ¶9, State v. Boyd, 2017 ME 36, ¶ 13, 156 A.3d 748. And subsection 4 of the statute just plain doesn’t make sense anymore. In this light, Section 2521, which bills itself as “Implied consent to chemical tests,” is due for an overhaul. It should get an overhaul that creates a clear and fair set of procedures to: (1) clearly inform people of their duty to submit to and complete a test; (2) clearly warn people of the consequences of failing to submit; and (3) make clear that only those words and/or conduct that follow the reading of implied consent warnings may be used to establish a person’s failure to comply with the duty to submit to or complete a test, for purposes of (a) suspending the person’s license, (b) using the person’s failure to submit as evidence in an OUI trial, or (c) imposing a mandatory minimum period of incarceration upon conviction; because (4) if there are no consequences to police for failing to conform to a warning-must-precede-refusal scheme, some officers just will not conform, and then (5) some people who would have taken a test will be subjected to severe refusal penalties and the State will be deprived of a test result because sloppy police practices will rule the day. To implement a newer, clearer and far less arbitrary scheme, I propose that subsections 1, 3, 4, 7 and 8 of 29-A M.R.S. §2521 be changed to the following form:

§2521. Duty to submit to chemical tests.

1. Mandatory submission to test. A person has a duty to 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 and shall submit to and complete such a test if:

A. There is probable cause to believe the person has operated a motor vehicle while under the influence of intoxicants;

B. The person has been informed of the duty to submit to a test and of the consequences of failing to submit to and complete a test set forth in subsection 3; and

C. A law enforcement officer, through words, actions or both, seeks the person’s compliance in submitting to and completing a test after the person has been informed pursuant to subsection B.

____

3. Warnings. No evidence of a person’s refusal or failure to submit to a test may be used for any of the purposes specified in paragraph A, B or C unless the words or conduct used to establish the person’s refusal or failure to submit are preceded by a law enforcement officer’s warning that a refusal or failure to submit to a test will:

A. Result in the Secretary of State suspending that person’s driver’s license and right to operate motor vehicles in Maine for a period up to 6 years;

B. Be admissible in evidence at a trial for operating under the influence of intoxicants; and

____

Repeal subsection 4.

Repeal subsection 7.

8. Issues. If a hearing is requested in accordance with section 2483, in addition to specific issues required by a specific offense, the scope of the hearing must include whether:

A. There was probable cause to believe the person operated a motor vehicle while under the influence of intoxicants;

B. The person was informed of the duty to submit to and complete a test; and

C. The person failed to submit to a test after having been informed of the duty to submit to and complete a test and of the consequences of failure to submit to a test set forth in subsection 3.

Existing subsections 4 and 7 are superfluous and should be repealed. Proposed subsection 1 creates a duty to submit to and complete a test that arises if there is probable cause to believe the person has operated under the influence, the person has been notified of the duty and of the consequences of failing to comply with it, and an officer has sought the person’s compliance. Proposed subsection 3 makes clear that a person’s words or conduct may not be used to subject the person to the consequences of a failure to submit set forth in subsection 3 unless the words or conduct are preceded by notice of the consequences of failure to submit set forth in subsection 3. These changes would serve due process concerns of notice and fundamental government fair play. At the same time, the purpose of warnings is to encourage a person to cooperate by threatening severe consequences for failure to cooperate in law enforcement’s efforts to secure a test result. This purpose is best served by notifying the person of the legal duty to submit and of the consequences of failing to submit before the officer abandons efforts to administer a test. This purpose is not well served by allowing an officer to wait until after the officer abandons all efforts to administer a test before notifying the person of the duty to submit and of the consequences of failing to submit, yet this is the procedure that some, evidently poorly trained, officers have fallen to. When an officer engages in this practice, all the officer is doing is checking a necessary box to ensure refusal penalties are imposed; the officer is not trying to maximize the prospects of securing a test result. In Melevesky, after the trooper read implied consent warnings, he would only have needed to ask Melevsky – for the first time after notifying Melevsky of duty and consequences – whether Melevsky would take a breath test. Under the proposed amendments, if Melevsky had said “no,” which he might very well have said at that point, he would have been subject to consequences for a test refusal. But if the warnings sufficiently impressed Melevsky that refusing was too costly, the purpose of the warnings would have been served and the State would have had its test result. If Melevsky had agreed to take a breath test but had then failed to submit breath samples sufficient to produce a test result, his post-warning conduct would have been useable against him to demonstrate his failure to complete a breath test. Easy, peasy… A trained officer remains in control at all times, and nobody gets railroaded. An untrained officer might get burned a time or two before learning that training actually matters. What we would not have is the circumstance we now have, post-Melevsky, where the system allows, if not encourages, officers to engage in procedures that make no sense given the purposes of the implied consent law.

Initially, the trooper in Melevsky failed to inform Melevsky of his duty to submit or of the consequences of failure to submit. When the trooper did inform Melevsky of his duty and of consequences, the warnings were given in terms of what the trooper was about to do: “I will give you a breath test unless I decide it is unreasonable, in which case another chemical test will be given.” Then, after informing Melevsky that he was going to give Melevsky a breath test unless he decided it was unreasonable, the trooper made no attempt to give Melevsky a breath test. In turn, Melevsky’s pre-warning words and actions were used to impose refusal consequences despite a statutory requirement that a refusal cannot be used to impose consequences unless the person has “first been told” of the consequences. How is it wise to adopt or encourage that procedure? If police are to inform a person of the true state of affairs post-Melevsky, the first paragraph of the implied consent form should be changed to read:

By operating or attempting to operate a motor vehicle in this State, you have a duty to submit to and complete chemical tests to determine your alcohol level and drug concentration if I offer you such a test or request that you take one. You have a duty to request such a test or to express a willingness to take one if I do not offer you one or do not request that you take one.

At least then, a person in Melevsky’s position would be honestly informed that failure to request a test, not just failure to submit to a test actually offered or demanded, will result in a license suspension for a period up to 6 years along with other consequences.

Additional Considerations.

I have previously written about Birchfield v. North Dakota, 579 U.S. __ , 136 S.Ct. 2160, here and here. In Birchfield, the U.S. Supreme Court held that a breath test is valid as a search incident to arrest and therefore does not require a search warrant. Blood tests are different. Those require a search warrant unless a recognized exception to the search warrant requirement applies in a particular case. Birchfield did not speak directly to urine tests, but the analysis the Court applied to blood testing strongly suggests that urine tests are not justified as searches incident to arrest, but instead require a search warrant. See State v. Wilson, KENSC-CR-16-638 (Me. Super. Ct., Ken. Cty., May 15, 2017). Birchfield also instructs that a state may create a duty for a person to submit to a blood test and may impose administrative license suspension penalties for failure to comply. However, a state may not impose criminal penalties for a person’s refusal to consent to a search for a blood sample. The Fourth Amendment protects people from submitting to such searches absent a search warrant or the presence of a recognized search warrant exception. The State should therefore generate separate duty-to-submit warning forms, with one form warning of the consequences of failing to submit to a breath test and another warning of the consequences of failing to submit to a blood or urine test. The breath test forms should warn of a license suspension for a period up to 6 years, the use against the person at an OUI trial of any failure to submit, and the imposition of a mandatory minimum period of incarceration if the person is convicted of OUI. The blood and urine test forms should warn only of a license suspension for a period up to 6 years, not the use of any failure to submit as evidence at an OUI trial and not the imposition of a mandatory minimum period of incarceration upon conviction of OUI. A form that warns of the latter consequence warns a person that a failure to submit will be used to impose criminal penalties for doing what a person has a right to do under the Fourth Amendment of the U.S. Constitution — refuse to submit to a search of his or her person without a search warrant. Any form that coerces a person, through threat of criminal penalties, to submit to a warrantless search, renders any purported consent invalid. In light of Birchfield, forms warning of the duty to submit and of the consequences of failure to submit to a blood or urine test should therefore warn only of consequences the State may legitimately impose, not incarceration upon conviction or use of the refusal as evidence against the person in a criminal trial.

Addendum 5/18/18. I received an email from someone who read this piece who poses the following question: “Isn’t another lesson of this case that defense lawyers should think more carefully about appealing decisions?” Yes, that is another of Melevsky’s lessons, and a lesson that should not have required Melevsky to be well-taught already. The burden on appeal is essentially to show that there is no rational support in the record for the Hearings Examiner’s (preponderance of the evidence) decision, or that the Hearings Examiner committed an error of law. How often do you suppose you will be able to overcome that deferential standard? And if you prevail in the Superior Court, the State gets to take you to the Law Court. Anyone who hasn’t observed that the Law Court goes straight for the immediate desired result, with the broader effect of defining due process down in this area, has been asleep for a long time — the thundering certainty with which the Law Court’s results are expressed (“clearly,” “more than enough,” etc.,) combined with the studiously opaque, canvas-smearing explication of how exactly the Court gets there should tell you all you need to know about your own prospects.