State v. Foley
| Decision Date | 15 November 1976 |
| Citation | 366 A.2d 172 |
| Parties | STATE of Maine v. John E. FOLEY. |
| Court | Maine Supreme Court |
David M. Cox, Dist. Atty., Paul W. Chaiken, Eugene W. Beaulieu, Asst. Dist. Attys., Bangor, for plaintiff.
Blanchard & Blanchard by Albert C. Blanchard, Bangor, for defedant.
Before DUFRESNE, C. J., and WEATHERBEE, * POMEROY, WERNICK and ARCHIBALD, JJ.
Charged with having operated a motor vehicle while under the influence of intoxicating liquor (29 M.R.S.A. § 1312-A), defendant John E. Foley was on trial before a jury when, on July 17, 1975, the presiding Justice declared a mistrial. Then, on July 30, all parties agreeing and having stipulated the facts, the presiding Justice ordered the case reported (Rule 37A M.R.Crim.P.) for this Court's decision of issues pertaining to Maine's so-called 'implied consent' law (29 M.R.S.A. § 1312).
The facts are these.
After arresting defendant for operating a motor vehicle while under the influence of intoxicating liquor, the police invoked the 'implied consent' law to have defendant submit to a test to determine the alcholic content of his blood. Since defendant suffered from emphysema, defendant would not submit to a test of his breath but agreed to submit to test of a sample of his blood. The police thereupon took defendant to a hospital to have the test by blood sample administered. Before administering the test the hospital demanded that defendant sign a form stating:
'I . . . agree to release the . . . Hospital from any liability whatsoever which may result from the taking of . . . (the) blood sample.'
Defendant refused to sign such a release, and no test by blood sample was made.
The fundamental question to which the instant report seems directed is whether in the processing of their own invocation of the 'implied consent' law, government officials subjected defendant to illegalities which effectively deprived him of evidence potentially favorable to him and thus violated defendant's constitutional right to due process of law.
We find that we cannot consider this issue but must discharge the report.
The 'report' procedure is a 'recognized departure' from the usual methodology of appellate review and should 'be employed with care and caution.' State v. Bailey, Me., 286 A.2d 603 (1972); see also: Hand v. Nickerson, 148 Me. 465, 95 A.2d 813 (1953). Moreover, since an
'. . . unrestrained power of justices at nisi prius, . . . to report cases'
could be
'. . . inconsistent with the purposes for which . . . (the Law Court) was established and the duties and powers with which it has been invested by statute', (p. 468 of 148 Me., p. 815 of 95 A.2d.)
the Law Court retains power to make its own independent determination whether in all the circumstances of a given case its decision 'on report' would be consistent with the Court's basic functions as an appellate tribunal. See: Hand v. Nickerson, supra, pp. 468, 469, 95 A.2d 813.
Thus, we have discharged a report when, notwithstanding the certification of the Superior Court Jusitce that the question reported was of sufficient importance, or doubt, to justify the report of the case, our own judgment, independently exercised, was to the contrary. See: Hand v. Nickerson, supra; Huot v. Gendron, Me., 284 A.2d 899 (1971).
Similarly, we have discharged a report when the facts in the agreed statement were
'insufficient to allow an intelligent decision of the problem presented . . ..' State v. Colburn, 134 Me. 494, 182 A. 210 (1936);
cf. also: Blackwell v. State, Me., 311 A.2d 536 (1973).
In State v. Michaud, Me., 244 A.2d 801 (1968), we discharged a report in a criminal proceeding which had been ordered after the granting of a mistrial. We there noted that the 'report' procedure, as available in a criminal prosecution, was designed primarily for the appellate review of questions usually addressed before trial, such as motions to suppress evidence for potential use at trial or motions testing the legal sufficiency of a criminal complaint or indictment. Specifically as to the mistrial...
To continue reading
Request your trial
-
State, ex rel. Tierney v. Ford Motor Co.
...be consistent with the Court's basic function as an appellate tribunal." Bangor Publishing Co., 414 A.2d at 1205, quoting State v. Foley, Me., 366 A.2d 172, 173 (1976); see Gendron v. Pawtucket Mutual Ins. Co., Me., 409 A.2d 656, 660 n.10 (1979). Notwithstanding the provisions of Rule 72, w......
-
State v. Bassford
...ex rel. Tierney v. Ford Motor Company, Me., 436 A.2d 866, 870 (1981); State v. Placzek, Me., 380 A.2d 1010, 1012 (1977); State v. Foley, Me., 366 A.2d 172, 173 (1976). Accordingly, we have discharged reports in a variety of contexts despite the certification of the question by the Superior ......
-
Matheson v. Bangor Pub. Co.
...of a given case its decision 'on report' would be consistent with the Court's basic function as an appellate tribunal." State v. Foley, Me., 366 A.2d 172, 173 (1976). Accord, Gendron v. Pawtucket Mutual Ins. Co., Me., 409 A.2d 656, 660 n.10 (1979); State v. Placzek, Me., 380 A.2d 1010, 1012......
-
State v. Placzek
...of a given case its decision 'on report' would be consistent with the Court's basic functions as an appellate tribunal." State v. Foley, Me., 366 A.2d 172, 173 (1976). Prior to the adoption of the Maine Rules of Civil Procedure and of Criminal Procedure, the Law Court in exercising its stat......