48 F.3d 1287 (1st Cir. 1995), 93-2392, Roberts v. State of Me.

Docket Nº:93-2392.
Citation:48 F.3d 1287
Party Name:Alan D. ROBERTS, Plaintiff-Appellant, v. STATE OF MAINE, Defendant-Appellee.
Case Date:February 16, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1287

48 F.3d 1287 (1st Cir. 1995)

Alan D. ROBERTS, Plaintiff-Appellant,


STATE OF MAINE, Defendant-Appellee.

No. 93-2392.

United States Court of Appeals, First Circuit

February 16, 1995

Heard April 6, 1994.

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Robert E. Sandy, Jr., with whom Sherman, Sandy & Lee, Waterville, ME, was on brief, for appellant.

Donald W. Macomber, Asst. Atty. Gen., with whom Michael E. Carpenter, Atty. Gen., Charles K. Leadbetter and Wayne S. Moss, Asst. Attys. Gen., Augusta, ME, were on brief, for appellee.

Before TORRUELLA, CYR and STAHL, Circuit Judges.

TORRUELLA, Chief Judge.

Maine's "implied consent" law imposes a two-day mandatory minimum jail sentence on defendants who refuse to take a blood/alcohol test and are later convicted of operating a motor vehicle under the influence of intoxicating liquor. 29 M.R.S.A. Secs. 1312, 1312-B. Petitioner-Appellant Alan D. Roberts challenges the constitutionality of his conviction and sentence under this law because, prior to his decision not to take a blood/alcohol test, (1) a police officer informed Roberts of "the consequences" of refusing to take the test but did not mention the mandatory jail sentence, and (2) the police officer denied Roberts' request to call his attorney. We find that under the particular circumstances of this case, Roberts' constitutional right to due process was violated and his petition for writ of habeas corpus must be granted as to his two-day mandatory sentence.


On January 25, 1991, Officer Alan Main of the Waterville, Maine Police Department stopped Roberts after Officer Main observed Roberts driving erratically. Officer Main smelled alcohol on Roberts' breath and suspected Roberts was driving while intoxicated but initially arrested Roberts only for operating a vehicle with a suspended license in violation of 29 M.R.S.A. Sec. 2184. Officer Main handcuffed Roberts and then transported him to the Waterville Police Station for processing. Roberts remained in handcuffs throughout the relevant time period at issue in this case.

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At the police station, Officer Main read Maine's "implied consent" form to Roberts, which is normally read to any driver stopped or arrested for operating under the influence of intoxicating liquor pursuant to 29 M.R.S.A. Sec. 1312. The form states:

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 blood-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 your physician perform the test if your 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 or obtain a license will be suspended for at least 6 months and may be suspended as long as 3 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.

I have been advised of the consequences 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.


Signature of Person Refusing Test

Maine's implied consent form essentially tracks the language of the "implied consent" statute which requires officers to warn suspected drunk drivers of potential consequences of refusing to take the blood/alcohol test. 29 M.R.S.A. Sec. 1312. As the statute was originally enacted, the only two consequences for failure to consent were, as the form states, suspension of the suspect's driver's license and the admission of the fact that the suspect refused to take the test in evidence at trial. In 1987, however, the Maine legislature amended its statute to provide two additional consequences, both involving sentencing, for refusing to take a blood/alcohol test. 1987 Maine Laws, ch. 791. Under the current law, a defendant's refusal to submit to the test is considered to be an "aggravating factor" for the determination of that defendant's sentence and, more significantly, that defendant's refusal will result in a mandatory minimum sentence of 48 hours incarceration upon conviction. 29 M.R.S.A. Sec. 1312-B(2) & (2)(B)(4).

Unfortunately, these changes did not make their way into the portion of the statute mandating what the police must say to suspected drunk drivers after those drivers are stopped. 29 M.R.S.A. Sec. 1312(1). As a result, the "implied consent" form was never changed to reflect the additional consequences for refusing to submit to a blood/alcohol test. Likewise, during Roberts' processing at the police station, Officer Main never informed Roberts of the additional consequences, including the mandatory jail sentence.

During the period when Officer Main was administering the "implied consent" procedure to Roberts, Roberts asked several times to use the telephone for the purpose of calling his attorney. Officer Main refused to allow Roberts to do so. Officer Main claimed that he denied Roberts permission to contact his attorney because Roberts was uncooperative and shouting obscenities.

Roberts eventually refused to take the blood/alcohol test. He also refused to sign the "implied consent" form after the form was read to him. Subsequently, the police filed a criminal complaint against Roberts charging him, among other things, with operating a motor vehicle under the influence of intoxicating liquor ("OUI") and operating on a suspended license in violation of 29 M.R.S.A. Sec. 1312-B and 29 M.R.S.A. Sec. 2184 respectively.

After a trial in the Maine district court, Roberts was convicted on the OUI and operating on a suspended license charges. At sentencing, the court followed the requirements of 29 M.R.S.A. Sec. 1312-B(2)(B)(4) and imposed the mandatory minimum 48-hour sentence of incarceration as a result of Roberts' refusal to take a blood/alcohol test. 1

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Roberts appealed his conviction to the Kennebec County Superior Court and then to the Maine Supreme Judicial Court. Both appellate courts denied his appeal. Following remand for the imposition of sentence, Roberts initiated a Petition for Writ of Habeas Corpus in the United States District Court for the District of Maine. The Maine state trial court ordered the sentence of incarceration stayed pending the outcome of proceedings on the habeas corpus petition. The federal district court dismissed Roberts' habeas corpus petition on October 29, 1993. Roberts then brought this appeal.


Roberts raises two related issues on appeal: (1) whether Officer Main's refusal to allow Roberts to call his attorney before deciding whether to take a blood/alcohol test denied Roberts of his Sixth Amendment right to counsel; and (2) whether Maine's "implied consent" form is misleading and inaccurate, in violation of Roberts' constitutional right to due process. Although Roberts' Sixth Amendment right to counsel is not implicated in this case, we do find a violation of Roberts' due process rights on the grounds that all of the circumstances of the case, including, but not limited to, the misleading information, deprived Roberts of fundamental fairness.

A. Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defense." U.S. Const. amend. VI. It is axiomatic that the right to counsel attaches only upon "the initiation of adversary judicial criminal proceedings" against the defendant, and thereafter the right applies to all "critical stages" of the prosecution, before, during and after trial. United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984); United States v. Ash, 413 U.S. 300, 310-13, 93 S.Ct. 2568, 2574-75, 37 L.Ed.2d 619 (1973); Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S.Ct. 1877, 1881-83, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 225-27, 87 S.Ct. 1926, 1931-32, 18 L.Ed.2d 1149 (1967).

The initiation of adversary judicial proceedings is normally "by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby, 406 U.S. at 689, 92 S.Ct. at 1882. In general terms, the point at which the right to counsel attaches is when "formal charges" have been initiated or when "the government has committed itself to prosecute." Moran v. Burbine, 475 U.S. 412, 430-32, 106 S.Ct. 1135, 1145-47, 89 L.Ed.2d 410 (1986); Gouveia, 467 U.S. at 189, 104 S.Ct. at 2298; Kirby, 406 U.S. at 689, 92 S.Ct. at 1882. "By its very terms, [the Sixth Amendment] becomes applicable only when the government's role shifts from investigation to accusation. For it is only then that the assistance of one versed in the 'intricacies ... of law,' ... is needed to assure that the prosecution's case encounters 'the crucible of meaningful adversarial testing.' " Moran, 475 U.S. at 430, 106 S.Ct. at 1146 (1986) (quoting United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984)).

In the present case, state officials had not brought any formal charges against Roberts for drunk driving at the time Roberts refused to take the blood/alcohol test. The first state action that could conceivably resemble a formal charge, the filing of the criminal complaint against Roberts for OUI, did not occur until after Roberts refused to submit to the test. Thus, at the point when Roberts was denied his request to speak with his attorney, the government had not yet committed to prosecuting him for OUI, nor had the government...

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