State v. Deering
| Decision Date | 11 April 1978 |
| Citation | 384 A.2d 447 |
| Parties | STATE of Maine v. William J. DEERING. |
| Court | Maine Supreme Court |
David M. Cox, Dist. Atty., Gary F. Thorne (orally), Asst. Dist. Atty., Bangor, for plaintiff.
Eaton, Peabody, Bradford & Veague by Bernard J. Kubetz, Bangor (orally), for defendant.
Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.
Following a jury-waived trial in Superior Court, Penobscot County, the defendant William J. Deering was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of 29 M.R.S.A. § 1312, as amended (1977 Supp.). Defendant has appealed his conviction.
We deny the appeal.
The testimony at trial supports the following factual conclusions. In the early morning hours of May 14, 1977, Trooper Harry Moran of the Maine State Police was proceeding in an easterly direction in his marked cruiser on Route 1A in Holden. At approximately 2:20 a. m., a westbound vehicle passed him traveling close to and over the center line of the road, at about 25 to 30 miles per hour in what was a 50-mile-per-hour zone. Trooper Moran reversed direction and tailed the other vehicle for a short distance, during which time it continued to weave back and forth within the lane, sometimes going over the center line. Having made these observations, the trooper pulled the vehicle over and requested its operator, the defendant, to produce his license. A strong odor of alcoholic beverage emanated from the open window on the driver's side, and Deering had difficulty in extracting his license from his wallet. Trooper Moran observed through the open window a six pack of beer, with two cans missing, on the front seat. Deering's face was flushed, his eyes were bloodshot, and he was unable to walk a straight line when requested to do so by the trooper. At that point, Trooper Moran advised Deering of his Miranda rights and placed him under arrest.
Upon being advised of his "informed consent" rights, including his right to choose between a blood or breath test, the defendant requested a blood test. After the wrecker arrived for the defendant's vehicle, Trooper Moran drove him directly to St. Joseph's Hospital in Bangor, where the blood test was to be performed. Before administering the test the attending nurse asked Deering to sign a printed hospital form entitled "Consent for Blood Test," which read in part: "I am voluntarily submitting to this test and I further agree to release the said (blank) from any liability whatsoever which may result from the taking of said sample." Deering refused to sign the release, stating that he feared possible infection from the needle. Trooper Moran warned Deering of the consequences of his refusing to take either the breath test, which remained available, or the blood test. Deering continued, however, to demand that St. Joseph's personnel give him a blood test without his signing the release. Deering made no request to be taken to another location for the blood test, and after appropriate warning, Trooper Moran completed the form reporting to the Secretary of State that Deering had refused both tests.
Deering was tried and convicted without any evidence of the results of either a blood or a breath test.
Defendant asserts that the police officer's conduct deprived him of his due process and statutory right to a blood test, which he claims might have exculpated him. That claim is premised upon the alleged unreasonableness of the officer's action in taking him to St. Joseph's Hospital for the requested blood test. The officer was familiar with St. Joseph's practice of requiring execution of a comprehensive release as a condition to its administering the blood test. 1 Under those circumstances, the defendant asserts, the police officer's action in...
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State v. Jones
...(defendant has power, as opposed to right, to withdraw otherwise implied consent to test, with statutory consequences); State v. Deering, 384 A.2d 447, 448 (Me.1978) (defendant has "statutory right" to select between available tests but law does not guarantee available facilities); State v.......
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State v. Plante
...statutory power to refuse chemical testing will be making a choice among the approved available methods of testing. See State v. Deering, Me., 384 A.2d 447, 448 (1978). The "consent" provisions in subsection 6 are not intended to superimpose some requirement of actual consent to chemical te......
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State v. Copeland
...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......
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State v. Pineau
...is admissible in evidence on the issue of whether he was operating while under the influence. 29 M.R.S.A. § 1312(8). In State v. Deering, 384 A.2d 447 (Me.1978), and State v. Copeland, 391 A.2d 836 (Me.1978), we held the defendant, who was required to sign a release to get a blood test and ......