State v. Allen

• Decision Date: 09 September 1977
• Parties: STATE of Maine v. Arthur M. ALLEN.
• Court: Maine Supreme Court

Page 472

377 A.2d 472

STATE of Maine v. Arthur M. ALLEN.

Supreme Judicial Court of Maine.

Sept. 9, 1977.

Michael Povich, Dist. Atty., James E. Patterson, Asst. Dist. Atty., Ellsworth, for plaintiff.

McRae Werth, Robert H. Vaughan, Blue Hill, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

WERNICK, Justice.

In a proceeding originating by Complaint in the District Court, District Five, Division of Central Hancock and transferred on October 9, 1975, to the Superior Court (Hancock County) defendant was tried without a jury on April 13, 1976, on the charge that he had operated a motor vehicle on September 24, 1975 in Ellsworth while under the influence of intoxicating liquor (29 M.R.S.A. § 1312). Defendant was found guilty and has appealed from the judgment of conviction.

Defendant had been arrested shortly before midnight on September 24, 1975 on the charge for which he was ultimately tried. He was taken to the Hancock County Jail situated in Ellsworth. There, the arresting officer, invoking Maine's so-called "implied consent" law, ¹ requested defendant to submit to a chemical test to determine the alcohol level of his blood. The officer informed defendant that this could be done by a test of either defendant's breath or blood.

Defendant agreed to a test of his breath. Because defendant had been smoking, the officer decided to wait approximately 15 minutes before administering the breath test. As the officer was commencing to administer the test, defendant decided not to have it. To avoid misunderstanding the officer again asked defendant whether he would submit to a test of his breath. Defendant refused a second time. The police officer then disposed of the kit for administering a breath test, throwing it into a trash can.

As soon as this had happened (approximately 20 minutes having elapsed since defendant's initial agreement to submit to a test of his breath), defendant told the officer that he now wanted a test of his blood. The officer refused to become further involved, explaining to defendant that his interest had ended once defendant had agreed to submit to a breath test and then had twice refused it.

After these above-described events, and when not more than 35 minutes had elapsed from the time defendant was brought to the Sheriff's Office, defendant spoke with an attorney. He thereafter made no further inquiry about, or request for, the administration of a test to ascertain the alcohol level of his blood.

Three issues are involved in defendant's appeal: (1) whether the refusal of the officer to comply with defendant's request for a test of his blood was a violation of defendant's constitutional right to due process of law; (2) whether the police officer had violated the provisions of the "implied consent" statute because, as claimed by defendant, he had failed to inform defendant of the penalty defendant would suffer for refusing a test to ascertain the alcohol level of his blood; and (3) whether defendant's conviction in a trial held without a jury must be reversed on appeal because, according to defendant, the record shows inadequate compliance with the prescriptions of Rule 23(a) M.R.Crim.P. concerning waiver of a trial by jury. ²

We deny the appeal.

Defendant failed to save at the trial level all of the above-mentioned three issues and, hence, they may be given appellate cognizance only if they involve error so serious as to have deprived defendant of a fair trial.

In such context the second issue that defendant was not adequately informed by the officer of the penalty for refusing to submit to an appropriate test to ascertain the alcohol level of his blood is plainly without effect, here, upon the fairness of defendant's trial. The "implied consent" statute prescribes as the consequence of such failure that "the test results shall be inadmissible in evidence." State v. Granville, Me., 336 A.2d 861, 863 (1975). At the instant trial no evidence was offered concerning the results of any test to ascertain the alcohol level of defendant's blood and, hence, it was immaterial to the outcome of the trial whether or not defendant had been adequately informed of the penalty for refusing to submit to the test requested by the arresting officer.

The first and third of the above-stated issues could affect the basic fairness of defendant's trial and, therefore, we investigate them to ascertain whether either of them in fact deprived defendant of a fair trial.

We turn, first, to the contention that the police officer's refusal to comply with defendant's request to administer a test of defendant's blood was in all the circumstances a violation of defendant's constitutional right to due process of law. ³

In the present context, the governmental "fair play" conception of constitutional due process of law may mandate that a police officer shall not interfere with the reasonable opportunity, consistent with the demands of safe custody, of a defendant to procure the seasonable taking of a test which might provide evidence in defendant's behalf. State v. Munsey, 152 Me. 198, 127 A.2d 79 (1956). Beyond this, however, there is no constitutional duty of a police officer affirmatively to assist the defendant in any undertaking to acquire such possibly exculpatory evidence. State v. Munsey, supra; State v. Ayotte, Me., 333 A.2d 436 (1975).

From the totality of the circumstances, here, it is plain that the police had not interfered with defendant's reasonable opportunity to arrange for a test to show the alcohol level of his blood. Any delays by the police, as well as the refusal of the officer to comply with defendant's belated request that the officer arrange a test of defendant's blood, were attributable to defendant's own uncooperative conduct. Moreover, after the officer had refused to comply with defendant's request that the officer arrange a test of defendant's blood (rather than the breath test defendant had first designated and then refused), defendant spoke with an attorney when there was still opportunity for defendant to arrange such a test. Yet, thereafter defendant said, or did, nothing more concerning a test.

That the . . . (defendant) failed to take advantage of the reasonable opportunity which was available to him was a matter of his own choice. The officers were under no obligation to try to procure a doctor . . . . Where the . . . (defendant) failed to pursue the matter of a blood test further, one can only conclude that he no longer desired one. The decision was his to make and his alone. " State v. Munsey, supra, 152 Me. at p. 203, 172 A.2d at p. 82.

In all the circumstances there was no violation of the defendant's constitutional right to due process of law.

We turn to the remaining issue of whether the record shows adequate compliance with the requirements stated in Rule 23(a) M.R.Crim.P. for a waiver of jury trial.

The record discloses a "trial designation" form indicating that the trial was to be held "jury waived." The form was signed by defendant's attorney of record, but not by defendant. The issue, therefore, is whether Rule 23(a) requires that defendant personally execute the written waiver of trial by jury.

We decide that for the purposes of the trial of a misdemeanor, (or its Criminal Code equivalent), ⁴ the written waiver of jury trial executed by defendant's attorney of record was a sufficient compliance with Rule 23(a).

We point out, initially, that in contrast, for example, to the express requirement in Rule 7(b) M.R.Crim.P. that a waiver of indictment be in a writing signed by d...