State v. Plante

• Decision Date: 07 August 1980
• Citation: 417 A.2d 991
• Parties: STATE of Maine v. William J. PLANTE.
• Court: Maine Supreme Court

Page 991

417 A.2d 991

STATE of Maine v. William J. PLANTE.

Supreme Judicial Court of Maine.

Argued May 6, 1980.

Decided Aug. 7, 1980.

David W. Crook, Dist. Atty., Susan B. Cole (orally), Asst. Dist. Atty., Augusta, for plaintiff.

Ronald L. Bishop (orally), Waterville, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN, and ROBERTS, JJ.

GODFREY, Justice.

On September 21, 1979, defendant William Plante was convicted after a jury trial in Superior Court, Kennebec County, of operating a motor vehicle while under the influence of intoxicating liquor in violation of 29 M.R.S.A. § 1312 (1978 & Supp.1979-80). ¹ On appeal, defendant contends that the results of the chemical blood test administered to determine his blood-alcohol level were improperly admitted in evidence because his consent to the test was not voluntarily given. Defendant contends also that the trial justice, who imposed the maximum sentence of ninety days' imprisonment, deprived defendant of his right to due process and chilled his right to present a defense by basing the sentence on the judge's announced belief that defendant and the witnesses who testified on his behalf had perjured themselves. We affirm the judgment.

I.

In the early morning hours of April 14, 1979, Officer Brown of the Winthrop Police Department stopped the car defendant was driving after following it and observing it cross the center line several times. Defendant admitted that he had been drinking during the evening but said that he had consumed only four beers. When he was unable to perform satisfactorily a "field sobriety test", Officer Brown arrested him for operating under the influence. At the Winthrop police station, where defendant was transported after his arrest, Officer Brown read defendant the implied consent form and offered him the choice between a blood test and a breath test for the purpose of determining his blood-alcohol level. Officer Brown testified that in response to defendant's questions:

I advised him that at least if he took a test he stood a chance because of the test coming back; otherwise it was his word against mine, as to the operation and whatnot, where if he took the test, and if he in fact had had only four beers like he said, then, you know, he was not under the influence, and the test would show it, and, you know, the test would be prima facie evidence. I advised him that if the test was below .10, that I would drop the charges.

I advised him that if he took the test that at least he stood a chance of evidence, hard, fact proof that he was not, otherwise, it would have to go to a trial, and it would be my testimony against his and the other officers and all his friends, in the case it went to a full trial, in other words, whereas if he took a test and it was close, I would automatically drop the charge.

Defendant then chose to have a blood test taken. Robert Morganer, a chemist called as a state's witness, testified that he tested defendant's blood sample and that the sample had a concentration of 0.12 percent ethanol.

As his first claim of error defendant contends that the police "promise" to drop the charges if the blood test results were below .10 percent was impermissible. Citing State v. Stevens, Me., 252 A.2d 58 (1969), in support of his argument that the standard of voluntariness applicable to admissibility of confessions should be applied also under 29 M.R.S.A. § 1312, defendant contends that his consent to the blood test was involuntary and that the test results should have been therefore excluded from evidence.

State v. Stevens, supra, was not decided under our present implied-consent statute. The statute then in force, derived from R.S. 1954, ch. 22, § 150, created only standards defining prima facie proof of intoxication based upon certain blood-alcohol levels as determined by chemical tests; it did not establish a right in the state to obtain such tests from an arrested driver. State v. Ayotte, Me., 333 A.2d 436, 439 (1975); State v. Munsey, 152 Me. 198, 200, 127 A.2d 79, 81 (1956). In State v. Merrow, 161 Me. 111, 208 A.2d 659 (1965), which this Court relied on in Stevens, we found compelling statutory implications that actual consent to the extraction of a defendant's blood for testing was required, and we held procedures for determining the voluntariness of confessions applicable to the issue of consent under § 1312.

That statute was repealed in 1969 and replaced by a prototype of the present implied-consent statute. Enacted to increase the availability of reliable evidence about the accused's sobriety, the implied-consent statute authorizes the chemical testing of a person arrested for operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor and establishes sanctions for refusal to submit to such testing. The operator who is arrested for driving under the influence has an initial duty by force of the statute to submit to chemical testing. However, the statute also gives him the power though not the right to refuse to perform that duty; i. e., he may, in effect, withdraw his "implied consent". If the arrested motorist does exercise his power of refusal, the state has no right to compel him to submit to chemical testing but he becomes subject to the penalty of having his operator's license suspended.

Unlike its predecessor, the implied-consent law does not require affirmative consent to testing by the arrested person in order to bring the evidentiary provisions of the statute into operation; consent to testing is implied from the arrested motorist's having operated or attempted to operate a motor vehicle within the state. State v. Shepard, Me., 323 A.2d 587 (1974).

As applicable to this case, subsection 1 (since repealed and replaced, see note 1 supra ) of section 1312 provided:

1. Prerequisites to tests. 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.

If 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.

This information requirement was designed to assure that an arrested person who exercised his power to refuse testing did so with full awareness of the consequences of such refusal. The former subsection 1 exclusionary rule applied only where the law enforcement officer had not complied with the provisions of that subsection; i. e., where the defendant had not been given the opportunity to make an informed choice between submission to a chemical test and suspension of his operator's license. State v. Bellino, Me., 390 A.2d 1014 (1978); State v. Van Reenan, Me., 355 A.2d 392 (1976); State v. Granville, Me., 336 A.2d 861 (1975). ² This exclusionary rule is purely statutory; it has nothing to do with constitutional rights of the arrested person under the fourth amendment. Cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The power of refusal is not, as argued by defendant, equivalent to rights created by the federal and state constitutions.

Defendant does not contend that his submission to the test resulted from impermissible governmental coercion that effectively deprived him of his ability to refuse to submit to chemical testing. ³ The allegedly "impermissible promise" by Officer Brown to drop the charges against defendant if the test results were "close" was made in response to the defendant's own questions and request for advice. The evidence is uncontroverted that Officer Brown advised defendant of his right to refuse chemical testing and explained adequately the statutory penalty for such refusal. In those circumstances, the statutory prerequisites at the time of the offense for the admissibility of defendant's blood test results were met, and the evidence was properly before the jury.

II.

Three days after the trial, the presiding justice held a hearing for sentencing of the defendant. ⁴ Having been informed by the assistant district attorney of the defendant's criminal record, the judge questioned the defendant directly about that record and verified entries to the effect that defendant had been convicted of larceny and trespass in 1973, trespass in 1975, taking by unauthorized transfer in 1979, and making excessive noise with a motor vehicle ("squealing tires") in 1978 or 1979. Defendant had no prior convictions for operating under the influence. The trial justice then said:

The Court is disturbed in view of the testimony presented in this particular case. The testimony of the Defendant indicated that this man did not start drinking until sometime early in the evening, according to his own testimony, sometime around 8 o'clock, when he possibly had one drink of beer at the Cellar and then he had three more beers at the Roundhouse, which is the equivalent of four beers, and that was over a period of approximately four hours, or possibly four-and-a-half hours. Following that he left and went to MacDonald's and spent half to three-quarters of an hour there ordering and eating, and he spent a half an hour, at least, getting to Winthrop where he was apprehended, and it was another half-an-hour to three-quarters of an hour before the blood test was taken, as he testified, so that there was almost an hour-and-a-half to two hours that elapsed after that, so over a period of six hours where he had only four beers, and he still showed a blood test of .12, which is utterly impossible as far as this Court is concerned.

On the basis of that testimony I feel he perjured his testimony, and he got his witnesses to come in and perjure themselves also, and on that basis I am going to impose a ninety-day County Jail sentence; Ninety days in the County Jail.

On appeal, the defendant argues that the trial justice impermissibly...