State v. Adams

• Decision Date: 02 March 1983
• Citation: 457 A.2d 416
• Parties: STATE of Maine v. Richard ADAMS.
• Court: Maine Supreme Court

Page 416

457 A.2d 416

STATE of Maine v. Richard ADAMS.

Supreme Judicial Court of Maine.

Argued Nov. 9, 1982.

Decided March 2, 1983.

David M. Cox, Dist. Atty., Gary F. Thorne, Asst. Dist. Atty. (orally), Bangor, for plaintiff.

Hall, DeSanctis & Schultz, Michael P. Roberts (orally), Bangor, for defendant.

Before McKUSICK, C.J., GODFREY, NICHOLS, CARTER and WATHEN, JJ., and DUFRESNE, Associate Retired Justice.

DUFRESNE, Associate Retired Justice.

Defendant Richard Adams was arrested on May 21, 1982, and by complaint dated May 26, 1982, was charged with violating 29 M.R.S.A. § 1312-B (Supp.1982) for operating in the City of Brewer a motor vehicle while having 0.10% or more by weight of alcohol in his blood or while under the influence of intoxicating liquor. The District Court (Third District, Division of Southern Penobscot) granted the defendant's motion to suppress the results of a blood test administered shortly after the defendant's arrest. The State properly brought an interlocutory appeal to this court, pursuant to 15 M.R.S.A. § 2115-A (1980 and Supp.1982-83), to challenge the suppression order. Because we conclude that the trial judge incorrectly applied the law, we vacate his order and remand this case for entry of an order denying the defendant's suppression motion.

The trial judge found as fact that Richard Adams was "badly beaten" as was the officer during the arrest, and that he was taken to the station by police cruiser and to St. Joseph's Hospital by ambulance with a very badly swollen eye and some facial cuts in the mouth area. Between his injuries and his apparent intoxication, which the arresting officer observed and which furnished probable cause for his arrest, Adams "was not exactly in good physical and mental condition" upon his arrival at the hospital, so found the District Court judge. Officer James Curtis of the Brewer Police Department read Adams a so-called "implied consent form" at the hospital, information required by 29 M.R.S.A. § 1312(1) (Supp.1982-83). ¹ At the officer's request, a nurse then took a blood sample from Adams; he was agitated and very upset at the time, but caused her no problem. Adams received no medical treatment for his injuries until after the blood sample was drawn. In his findings the District Court judge stated that "the defendant, Richard Adams, did not understand the reading of the consent form, did not know what the nurse was doing, ... and never knowingly consented to the test." For this reason, the District Court suppressed the results of the blood test performed on the sample drawn from Adams' arm at the hospital.

As a preliminary matter, we disagree with the defendant's assertion that the District Court judge erred in making the implicit or assumed factual finding that the defendant did not refuse to submit to the blood test when the nurse approached him to draw a blood sample. Factual findings of trial courts in criminal matters may be overturned on review only if they are "clearly erroneous." See State v. Maier, 423 A.2d 235, 240 (Me.1980); State v. Chattley, 390 A.2d 472, 478 (Me.1978); State v. Walker, 341 A.2d 700, 702 (Me.1975). Cf., in civil matters, Harmon v. Emerson, 425 A.2d 978, 981 (Me.1981); Dehahn v. Innes, 356 A.2d 711, 716-17 (Me.1976). We have reviewed the transcript of the suppression hearing held in the District Court, and we conclude that there was ample evidence to support the judge's conclusion that, although Adams never knowingly consented to the blood test, neither did he refuse, by word or by deed, to be tested.

The critical issue in this case is, whether a motorist arrested on probable cause for operating under the influence, who due to injury and/or intoxication may not understand that he can choose to take or refuse a blood test and who fails to refuse it by affirmative and unequivocal language or demeanor, is entitled to have the results of his blood test suppressed at trial. We answer in the negative.

Resolution of our problem requires an insight into the historical background of the legislation covering the operation of motor vehicles by persons under the influence of intoxicating liquor. Our Court, in State v. Demerritt, 149 Me. 380, 386, 103 A.2d 106, 110 (1953), had already stated that

the ... 'blood test statute' gives a respondent no 'privilege'. Any person can have a blood test at any time, and the result can be testified to in court under the common law as a scientific fact. So can any relevant fact be testified to in the trial of a case, if not otherwise inadmissible by some rule of exclusion. (citations omitted). The statute itself recognizes this and gives no privilege.... The only privilege given by the statute (if in fact a statute is necessary to give it) is, that a failure to permit a blood test to be made, is not evidence against an accused.

Indeed, the statute originally expressly provided (see 29 M.R.S.A. § 1312, 1964 revised edition):

The court may admit evidence of the percentage by weight of alcohol in the defendant's blood at the time alleged, as shown by a chemical analysis of his breath, blood or urine.

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All such tests made to determine the weight of alcohol in the blood shall be paid for by the county wherein the violation of this section was alleged to have occurred. The failure of a person accused of this offense to have tests made to determine the weight of alcohol in his blood shall not be admissible in evidence against him.

The 1969 Legislature introduced in this area of the law the "implied consent " concept, i.e. "any person who operates a motor vehicle or attempts to operate a motor vehicle within this State shall be deemed to have given consent to a chemical test of the blood alcohol level of his blood ... for the purpose of determining the alcoholic content of his blood ...." (Emphasis additional). At the same time, the admissibility of test results as evidence was couched in mandatory terminology in substitution for the existing permissive language of the statute, which was changed specifically to reflect the new conceptual duty of motorists to submit to such tests, the new section reading:

9 Evidence. The court shall admit evidence of the percentage by weight of alcohol in the defendant's blood at the time alleged, as shown by a chemical analysis of his blood or urine. (Emphasis ours).

Where it deliberately amended that aspect of the statute by striking out "may " and inserting "shall" in lieu thereof, the Legislature manifestly intended to show that the directory feature of the law, as it then existed, regarding the admissibility of blood-alcohol tests in evidence was being altered from its optional and permissive character to impose general legal admissibility of such tests. See Talbot v. Board of Education, 171 Misc. 974, 14 N.Y.S.2d 340, 347 (1939). As stated in Hann v. Merrill, 305 A.2d 545, 549 (Me.1972), in most jurisdictions the word "shall" in the construction of statutes is deemed to be imperative and mandatory and not merely directory and permissive.

Notwithstanding this general admissibility clause respecting blood-alcohol tests, the 1969 "implied consent" legislation so-called in subsection 1 of the Act expressly provided that such blood-alcohol tests shall be inadmissible as evidence in any proceeding before any administrative officer or court of this State, if the law enforcement officer fails to comply with certain prerequisites to the taking of any test. Before any test specified is given, subsection 1 provided, the law enforcement officer shall inform the arrested person of his right to have a similar test or tests made by a physician of his own choosing, afford him an opportunity to request such additional test and inform him of the consequences of his refusal to permit a test at the direction of the law enforcement officer. Subsection 2 of that same legislation mandated that, if a person under arrest refuses upon the request of a law enforcement officer to submit to one of the tests, none shall be given, but at the same time subjected the refusing motorist to suspension of his license or privilege to operate a motor vehicle at the hands of the Secretary of State, the administrative officer of this State in these matters.

In 1971, when it replaced the urine test with the breath test, the Legislature reenacted the reference subsections 1, 2 and 9, except that the only prerequisites to the test, as provided in subsection 1, were that the law enforcement officer shall inform the arrested person of the consequences of his refusal to permit a test at the direction of the law enforcement officer.

In 1979, the Legislature enacted an "Act Amending Criminal Laws and Procedures" (see P.L.1979, c. 701). This legislation purported to change the law in the area of the issue presented in the present case. The previously stated subsection 1 was repealed and the following enacted in its place:

1. Prerequisites to tests. Before any test specified is given, the law enforcement officer shall inform the arrested person that if he revokes his implied consent to a chemical test by refusing to permit a test at the direction of the law enforcement officer, his license will be suspended for 90 days or more, and the revocation of consent shall be admissible in evidence against him at any trial for operating under the influence of intoxicating liquor.

No test results shall be excluded as evidence in any proceeding before any administrative officer or court of this State as a result of the failure of the law enforcement officer to comply with this prerequisite. The only effects of the failure of the officer to comply with this prerequisite shall be as provided in subsections 2 and 8. (See P.L.1979, c. 701, § 32). (Emphasis added).

Thus, the 1979 Legislature made admissible in evidence test results which, prior thereto, it had expressly excluded for failure of law enforcement officers to give the prescribed warnings prior to the taking of the tests.

Effect...