LEMEUNIER-FITZGERALD & THE DECLARATION OF INDEPENDENCE.
Posted by Edmund R. Folsom, Esq.
Posted: July 3, 2018
Maine’s Law Court finally issued its decision in State v. Lemeunier-Fitzgerald, 2018 ME 85, today, about 14 months after the case was argued. As background, if a person who is arrested for OUI in Maine balks at taking a breath, blood or urine test, the police read the person what are commonly called “implied consent” warnings. These warnings should more appropriately be called “duty to submit” warnings, because they tell the person he or she has a duty to submit to a test of the officer’s choosing and that there will be particular consequences for not submitting. Among those consequences, the person is told that failure to submit to a 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.” For the uninitiated, incarceration is imprisonment, otherwise commonly called a “jail sentence.” In other words, if a person under arrest for OUI indicates that he or she might not go along with a test, the police tell that person he or she has a duty to go along with it, and that if he or she does not go along with it, and if he or she ends up being convicted of OUI, he or she must be sentenced to jail for not going along.
A couple of years ago, the U.S. Supreme Court told us, in Birchfield v. North Dakota, 579 U.S. __ (1996), that it’s fine for police to obtain an OUI breath sample without a search warrant from a person under arrest for OUI. The Supreme Court put breath tests in the category of “searches incident to arrest,” which is one of the handful of recognized exceptions to the requirement of a search warrant. On the other hand, the Supreme Court told us that blood samples, because they involve the piercing of a person’s veins and extraction of the person’s blood, are much more intrusive, and therefore do not fit within the “search incident to arrest” exception to the requirement of a search warrant. A blood sample requires a search warrant, unless some other recognized exception to the requirement of a search warrant applies. The two recognized exceptions that ordinarily might apply are probable cause and exigent circumstances, and consent. In Lemeunier-Fitzgerald’s case, the Defendant and the State agreed that the probable cause and exigent circumstances exception did not apply, which left the possibility of consent.
Ms. Lemeunier-Fitzgerald was taken to a hospital after a police officer, who was investigating her for OUI, watched her ingest a handful of pills. The officer caught up to her at the hospital and read her the implied consent (or duty to submit) form, telling her she had a duty to submit to a test of the officer’s choosing, and that if she failed to submit, and if she were to be convicted of OUI, her failure to submit would subject her to a mandatory minimum jail sentence. After she was read those warnings, she allowed the officer to take a blood sample. Later, she brought a motion to suppress the results of the blood test. She claimed that the officer took her blood without a search warrant and that her purported consent was invalid because it was coerced by the officer’s threat that if she did not go along, and if she was later convicted of OUI, she would be put in jail for not going along. To support this argument, Ms. Lemeunier-Fitzgerald relied on Birchfield.
Apart from declaring that police need a search warrant to take a person’s blood sample, the Supreme Court in Birchfield also discussed the effect it has on a person’s purported consent to a blood test for police to tell the person that criminal penalties will be imposed if the person does not consent. In Birchfield, the Supreme Court pointed out that police are not allowed to coerce a person into consenting to a search by threatening to do something they have no right to do. Birchfield actually involved the consolidation at the Supreme Court of the appeals of 3 people whose cases dealt with different facets of the issue on appeal. One of those people was a guy named Beylund. Beyund had been told that if he did not allow the police to take his blood he would face (among other things) prosecution for the crime of refusing to submit to a blood test. In this connection, the Supreme Court pointed out that: (1) a search warrant is required to take a person’s blood; (2) police did not have a search warrant and were relying upon the consent exception to the search warrant requirement; (3) a person is constitutionally protected against being required to consent to the taking of his blood without a search warrant; (4) the police threatened Beylund with a criminal penalty for not consenting to a blood draw; (5) police have no right to threaten a person with a criminal penalty for refusing to consent to something the person has a constitutional right not to consent to; and (6) the case therefore needed to be sent back to the trial court to determine if, in the “totality of the circumstances,” Beylund’s consent was valid or whether it was coerced by a threatened criminal penalty for withholding consent.
Maine does not have a separate crime of failing to submit to a test. Instead, Maine’s OUI statute sets forth extra penalties for a person who fails to submit to a test. This brings us back to the central issue in Lumunier-Fitzgerald: Does the State of Maine have the right to impose a mandatory jail sentence on a person for refusing to consent to a blood draw – something the person has a constitutional right not to consent to – if the person is convicted of OUI? If the State of Maine does not have the right to do that, then the State’s police officers may not threaten a person with that consequence. If they do threaten the person with that consequence, and if the person consents as a result, the purported consent is invalid. The judge who heard Ms. Lumeunier-Fitzgerald’s motion to suppress ruled that she validly consented to the blood test. That Court declared that her situation was different than the situations at issue in Birchfield. Under the suppression Court’s theory, Beylund was threatened that he would be prosecuted for a separate crime of failing to submit if he did not consent, but Lumeunier-Fitzgerald was only threatened that she would be put in jail for failing to submit if she were convicted of OUI. Because Ms. Lumeunier-Fitzgerald was not threatened with prosecution for a separate crime for failing to submit, her consent was valid. Some might call that the classic distinction without a difference. The Law Court upheld the trial court’s ruling and reasoning. Here is how the Law Court’s majority crystalized it:
Because the mandatory minimum sentence applies only upon an OUI conviction and the statute does not criminalize the mere act of refusing to submit to a blood test, and because it does not increase a driver’s maximum exposure to a fine or sentence of imprisonment, the statute’s setting of a mandatory minimum sentence if a driver is convicted of OUI after refusing to submit to a blood test despite probable cause is not a “criminal penalt[y] on the refusal to submit to such a test” within the meaning of Birchfield. 579 U.S. –, 136 S. Ct. at 2185.
So, there you have it… The threat that a person will receive a minimum mandatory jail sentence for failing to consent to a blood draw if the person is convicted of OUI is not a threat to impose a “criminal penalty” within the meaning of Birchfield. Maine can legitimately put a person in jail for a minimum mandatory period for not consenting to a warrantless blood draw, even though the person has a constitutional right not to consent to a warrantless blood draw. Therefore, if police threaten that a person will receive a mandatory jail sentence for withholding consent to a warrantless blood draw, that threat cannot invalidate the person’s consent. But, hey, since when is a mandatory minimum jail sentence following conviction of a crime a “criminal penalty,” anyway, right? Something in the back of my head tells me that a jail sentence is the classic criminal penalty, the quintessence of the criminal penalty, but in the spirit of the Lumeunier-Fitzgerald majority, let’s not get caught up in such details.
The Lemeunier-Fitzgerald decision is 4-3. The three dissenters know a distinction without a difference when they see one, and they see one here. As for the majority, they seem to have made an early Independence Day declaration, declaring their independence from Fourth Amendment jurisprudence of the United States Supreme Court.