State v. Bellino

• Decision Date: 31 July 1978
• Citation: 390 A.2d 1014
• Parties: STATE of Maine v. James A. BELLINO.
• Court: Maine Supreme Court

Page 1014

390 A.2d 1014

STATE of Maine v. James A. BELLINO.

Supreme Judicial Court of Maine.

July 31, 1978.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Thomas L. Goodwin (orally), Asst. Dist. Atty., Portland, for plaintiff.

Nisbet, MacNichol & Ludwig by Alexander MacNichol (orally), South Portland, for defendant.

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

DUFRESNE, Active Retired Justice. ¹

James A. Bellino, the defendant, was accused of committing the offense of recklessly causing the death of Donald E. Zellers on July 13, 1975 in violation of 29 M.R.S.A., § 1315 ² by indictment dated October 29, 1975 which charged that

"on or about the Thirteenth day of July, 1975, in the Town of Scarborough, County of Cumberland and State of Maine, the above named defendant, James A. Bellino, did operate a motor vehicle, to wit: an automobile with reckless disregard for the safety of others and did thereby cause the death of another person, to wit: Donald E. Zellers, the death of said person resulting within one year, to wit: on the Thirteenth day of July, A.D., 1975, in that he, the said Defendant, at a time when his faculties were under the influence of intoxicating liquor, did drive a 1966 Chevrolet automobile, in which said Zellers was a passenger, during the hours of darkness, easterly over and along the wet surface of Route # 1, so-called, in said Scarborough, at a rate of speed which was excessive for the road conditions then and there existing; did lose control of said automobile so that it skidded approximately 444 feet, turned on its side, and struck a telephone pole with such force that said Zellers did receive fatal injuries from the collision."

Prior to trial of the case, the defendant, pursuant to Rule 41(e), M.R.Crim.P., moved the Superior Court in and for the County of Cumberland to suppress for use as evidence at trial the results of a blood alcohol test performed on a sample of blood extracted from his body. The reasons he asserts why the blood test results should be suppressed and not admitted in evidence are, first, that the blood sample was not obtained in compliance with the express prerequirements of 29 M.R.S.A., § 1312, and, secondly, if not taken in violation of the statute, the blood sample was obtained in violation of his Fourth Amendment rights against unreasonable searches and seizures as protected by the Constitution of the United States. After an evidentiary hearing, the Court denied the motion to suppress. The propriety of the interlocutory ruling is before us on report under Rule 37A(b), M.R.Crim.P. We sustain the defendant's appeal.

The record on appeal is presented to us upon the following agreed statement of facts approved by the trial Justice and certified as the record on appeal in full compliance with Rule 39(r), M.R.Crim.P.:

"Defendant Bellino was found unconscious behind the driving wheel of a car involved in a one-car accident in Scarborough. His feet were entangled in the pedals and his body draped over the door. There was an odor of alcohol on his breath. One police officer (Scarborough policeman Richard Babine, who was present as a member of the Scarborough Rescue Unit rather than as a policeman) stated that there were some broken beer bottles in the area, and at least one which was unbroken, open and partially empty. The State Trooper who was investigating the accident, Blaine Jardine, stated that he did not see any beer bottles.

"The car had crashed sideways into a utility pole and was severely damaged. Trooper Jardine was aware that the eyewitness reporting the accident had stated that the car had been travelling at a great rate of speed just prior to the accident.

"The physical evidence also made it apparent that the car had been travelling at a great rate of speed. It had also been raining and the road was wet.

"A front seat passenger had to be helped out through the windshield. Donald E. Zellers, a passenger in the back seat, was found crushed by the roof and dead.

"Before Mr. Bellino was taken to the hospital, Trooper Jardine gave a blood test kit to Officer Babine in the hope that a blood-alcohol sample could be obtained from Mr. Bellino. According to Officer Babine, who was at the defendant's side the entire trip, defendant regained consciousness during that trip and remained awake during the examination by a doctor at least until he was taken to the X-ray room, where Officer Babine was not present.

"Following return from the X-ray room to the emergency ward 'cubicle' defendant appeared to be either asleep or unconscious, but was awakened, and was asked if a blood sample could be taken from him. Officer Babine informed defendant that he was a police officer. (He was not, of course, in a police uniform.) He warned defendant of the general consequences of refusing to submit to a test (loss of license), but did not state specifically the length of suspension. Officer Babine also told the defendant that a breath test was not available since he did not have a breath test kit with him. When specifically asked whether he would submit to a blood test, the defendant stated after a short lapse of time, 'I don't give a shit.' The blood test was taken, the nurse who took the sample (Carol Dunphe) and Officer Babine having to force the defendant to roll over in order to gain access to his uninjured arm. Defendant shortly thereafter fell asleep again. He was suffering from a minor cerebral contusion.

"Defendant claimed he did not remember anything from shortly before his accident until his arrival at home.

"At no time did the officer arrest defendant or take any action which could be deemed in law to amount to an arrest, the defendant being under hospitalization. No restrictions were placed on defendant's movement beyond those caused by his own physical condition. No officers remained with defendant following the taking of the blood sample.

"The blood sample contained 0.12% Alcohol by weight."

We note initially that the Justice below did not purport to rule on the defendant's knowledgeable and intelligent submission to the blood test. Indeed, he stated in his decision on the motion:

"Whether Defendant was consciously aware of what was happening or not is not governing. Under appropriate circumstances non-testimonial evidence may be obtained without consent and with or without a warrant.

"Here the blood sample and the results of the test thereof are of that nature.

"The natural process of the human physical system would cause the deterioration of such evidence therein. The exigency of the matter made the application for a warrant inappropriate and unnecessary. From the facts of the case the officer had sufficient probable cause.

The sample was taken in a safe, sterile, humane manner."

Evidence bearing on facts having probative value, i. e. a legitimate tendency to establish or disprove controverted facts at issue in the case is relevant and admissible at trial, unless it be excluded by statute, or by some rule or principle of law.

As stated in McCully v. Bessey, 142 Me. 209, 214, 49 A.2d 230, 233 (1946):

"Rules of evidence are usually rules of exclusion, and evidence is often admitted, by the trial court, not because it is shown to be competent, but because it is Not shown to be Incompetent." (Emphasis in original)

Accord: Rawley v. Palo Sales, 144 Me. 375, 380, 70 A.2d 540, 543 (1949).

Results of a chemical test of one's blood for alcohol content is relevant evidence admissible under the common law as a scientific fact. State v. Demerritt, 149 Me. 380, 386, 103 A.2d 106, 110 (1953). Such scientific evidence has been proven by experience to be "a reliable indicator of intoxication or sobriety." See State v. Ballard, Me., 385 A.2d 799, 802 (1978). ³

The defendant contends that in this case the test results of his blood-alcohol level are inadmissible, because the blood sample, on which the test analysis was made, was taken in a manner contrary to the express requirements of 29 M.R.S.A., § 1312 and, by reason thereof, the reference statute declares such evidence incompetent by providing a special exclusionary rule to the effect that

"(i)f the law enforcement officer fails to comply with this prerequisite, any test results shall be inadmissible as evidence in Any proceeding before Any administrative officer or Court of this State " (emphasis supplied),

the prerequisite referred to being as follows:

"Before any test specified is given, 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."

Prior to the enactment of the implied consent law, the blood test statute it could then be a blood, breath or urine test (29 M.R.S.A., § 1312-1964 Revision) imposed no obligations on the part of either, the law enforcement authorities or the accused, of having chemical tests made for the determination of a motor vehicle operator's condition of intoxication or sobriety. As it then existed, the statute merely established the prima facie effect of a showing of certain quantities of alcohol in the blood, the statutory chart assigning to specific evidentiary percentages by weight of alcohol in the blood their correlative probative value in proof of the presence or absence of influence from alcohol consumed by the operator. The statutory scheme at that time, not only did not carry sanctions for refusals to submit to a test at the request of an enforcement officer, but, in recognizing the defendant's right to a reasonable opportunity to attempt to procure a blood test in his defense, expressly immunized his refusal or failure to have tests made from any adverse prejudicial effect by reason of a special exclusionary rule which provided that "the failure of a person accused of this offense (operation of a motor vehicle under the influence of intoxicating liquor or drugs, hereinafter referred to as O.U.I.) to have tests made...