State v. Copeland

• Decision Date: 05 October 1978
• Citation: 391 A.2d 836
• Parties: STATE of Maine v. Frederick COPELAND.
• Court: Maine Supreme Court

Page 836

391 A.2d 836

STATE of Maine v. Frederick COPELAND.

Supreme Judicial Court of Maine.

Oct. 5, 1978.

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

Harold C. Hamilton, II (orally), Bangor, Sharma Trager, Law Student, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, DELAHANTY, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

Defendant Frederick Copeland appeals from a Superior Court conviction in Penobscot County for operating a motor vehicle under the influence of intoxicating liquors in violation of 29 M.R.S.A. § 1312(10). His sole ground for appeal is his claim that the conduct of the Bangor police deprived him of his due process and statutory right to a blood test, which might have tended to exculpate him. We deny the appeal.

Bangor Police Officer Welch arrested Copeland at about 5:15 a. m. on Sunday morning, October 23, 1977. At the police station, officers informed Copeland of his rights under the motorist's implied consent law, 29 M.R.S.A. § 1312. ¹ Copeland requested a blood test. In accordance with the standard procedure of the Bangor Police Department, Officer Welch then took Copeland to St. Joseph's Hospital. On arriving at St. Joseph's Copeland told Welch that he was an adherent of osteopathic medicine and that he wished to be taken to the James A. Taylor Hospital instead. Though Officer Welch refused to take him there on the ground that the police department's standard operating procedure dictated use of the facilities at St. Joseph's, Welch did undertake to find an osteopathic physician to draw defendant's blood. Welch called four or five physicians selected by Copeland from the telephone directory but failed to obtain their services. Only after this diligent, good faith effort to secure an osteopathic physician for Copeland did Officer Welch attempt to convince defendant to let St. Joseph's Hospital personnel draw his blood.

The attending nurse who would have drawn Copeland's blood told him that he was required to sign a printed hospital liability release, which purported to absolve the hospital from any liability whatsoever which might result from the blood drawing procedure. Copeland was reluctant to sign the release, but after being informed that failure to submit to the test would automatically result in a three-month suspension of his driving privileges, he agreed to sign. However, before signing his name, Copeland added a written comment to the form, reading "person had no signed I.D. saying she had right to draw blood from me." As soon as the nurse observed the language added by Copeland, she refused to draw his blood, treating the inscription as a limitation upon the required unqualified release. Officer Welch informed Copeland that the added language made it impossible for St. Joseph's personnel to take a sample of his blood. Thereupon, officer Welch transported Copeland back to the police station and no blood test was ever performed. Defendant was convicted on evidence other than the results of any alcohol test.

As this court said in State v. Ayotte, Me., 333 A.2d 436, 439 (1975), the motorist's implied consent law does not guarantee that facilities will always be available for intoxication tests for the benefit of arrested persons. On the other hand, once the defendant has elected to take the blood test under the statute, the police, "consistent with security and with other police responsibilities," are obliged to cooperate in assisting him to procure his selected test. Id. at 439. Compliance with this police obligation arising from the implied consent statute will at the same time satisfy the due process requirements declared in State v. Munsey, 152 Me. 198, 201, 127 A.2d 79, 81 (1956), long prior to the enactment of the statute, that the arrestee be accorded "a reasonable opportunity, (consistent with safe custody) . . . to procure the seasonable taking of a blood sample for test purposes."

This case, which was tried to a jury in March of this year, is controlled by our decision certified on April 11, 1978, in State v. Deering, Me., 384 A.2d 447 (1978). In the case at bar, defendant did ask to be taken to another hospital from St. Joseph's, but nothing appears in the record to indicate the other hospital would have drawn his blood at that hour early Sunday morning. Furthermore, in this case the arresting officer went to considerable length, at defendant's request, to try to find an osteopathic physician to draw his blood. As in Deering, id. at 449, we find no violation of defendant's statutory or constitutional rights on the facts of the present case. The police officer appropriately cooperated with this defendant in an attempt to get a blood test, as he was required to do by the statute, and he A fortiori "afforded (defendant) the reasonable opportunity (to attempt to procure a blood test) to which he was entitled as a matter of fair play." State v. Munsey, supra, 152 Me. at 204, 127 A.2d at 83.

The trial justice submitted to the jury the due process question whether the police had done "anything to affirmatively prevent (defendant) from obtaining exculpatory evidence" or whether there was "any reasonable doubt that (defendant) was accorded governmental fair play." This was a mistake. The due process issue went to the very root of the prosecution. It was inappropriate to call upon the jury to consider and determine whether or not governmental misconduct barred the prosecution from going forward. ² Due process issues involving alleged police interference with the efforts of a defendant to gather exculpatory evidence are to be heard and decided by the court, not by a jury....