docket n.: ken-19-60 appellce stephen singleton,...docket n.: ken-19-60 sta te of maine, appellce v....

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STATE OF MAlNE MAINE SUPREME JUDICIAL COURT

Sitting as the Law Court Docket N.: Ken-19-60

STA TE OF MAINE,

Appellce

v.

Stephen Singleton,

Appellant

ON APPEAL FROM THE UNIFIED CRIMINAL DOCKET IN KENNEBEC COUNTY

APPENDIX

Andrew T. Dawson, Esq. Attorney for Appellant

Goodspeed & O'Donnell P.O. Box 738 Augusta, ME 04332-0738 (207) 622-6161

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ST ATE OF MAINE MAINE SUPREME JUDICIAL COURT

Sitting as the Law Court Docket N.: Ken-19-60

STATE OF MAINE,

Appellee

v.

Stephen Singleton,

Appellant

ON APPEAL FROM THE UNIFIED CRIMINAL DOCKET IN KENNEBEC COUNTY

APPENDIX

Andrew T. Dawson, Esq. Attorney for Appellant


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Table of Contents

Docket Record ................................................................................. 1

Order on Motion to Suppress, dated October 4, 2018 ..................................... 8

Order on Motion for Reconsideration, dated December 5, 2018 ........................ 11

Conditional Plea Agreement, dated February 7, 2019 .................................... 13

Judgment and Commitment, dated March 6, 2019 ...................................... 14

Complaint, dated May 17, 2018 ........................................................... 17

Motion to Suppress, dated July 17, 2018 ............................................. , ... 18

Transcript of Oral Motion to Amend ...................................................... 20

Motion to Reconsider Denial of Motion to Suppress, dated October 12, 2018 ..... 21

State's Modified Response to Defendant's Motion to Reconsider Its Denial of

Defendant's Motion to Suppress, dated December 5, 2018 ........................... 25

State's Exhibit 1 .............................................................................. 29

State's Exhibit 2 ............................................................................... 30


STATE OF MAINE v.

CRIMINAL DOCKET KENNEBEC, ss.

STEPHEN R SINGLETON Docket NO KENCD-CR-2018-00910 160 BOND BROOK ROAD AUGUSTA MB 04330 DOCKET RECORD

DOB: 06/15/1984 Attomey: MATl'HBW NICHOLS State's Attorney: TYLER LECLAIR

NICHOLS & CHURCHILL 1250 FOREST AVENUE PORTLAND ME 04103 LIMITED 10/29/2018

Attomey: ANDREW DAWSON GOODSPEED & O'DONNELL 10 SUMMER ST PO BOX 738 AUGUSTA ME 04332-0738 APPOINTED 05/23/2018

Filing Document: CRIMINAL COMPLAINT Filing Date: 05/17/2018

Major Case Type: MISDEMEANOR (CLASS D,E)

Charge(s}

1 OUI (ALCOHOL}, 1 PRIOR 12/31/2017 MANCHESTER Seq 12944 29-A 2411(1-A) (B) (1) Class D

MtJRRAY I MSP

Docket Events:

05/18/2018 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 05/17/2018

05/18/2018 Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULE OTHER COURT ON 05/21/2018 at 08:30 a.m. in Room No. 1

AUGSC 05/21/2018 Charge(s): 1

HEARING - ARRAIGNMENT HELD ON 05/21/2018 THOMAS NALE I JUDGE Defendant Present in Court

DEFENDANT INFORMED OF CHARGES. 05/21/2018 Charge(s): 1

PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 05/21/2018

05/21/2018 BAIL BOND - PR BAIL BOND SET BY COURT ON 05/21/2018 THOMAS NALE I JUDGE Defendant Present in Court

NO USE/POSS ALCOHOL/ILL DRUGS WITH RANDOM SEARCH/TEST AT ANY TIME. 05/21/2018 BAIL BOND - PR BAIL BOND COND RELEASE ISSUED ON 05/21/2018

THOMAS NALE I JUDGE 05/21/2018 HEARING - DISPOSITIONAL CONFERENCE SCHEDULED FOR 06/19/2018 at 08:30 a.m. in Room No. 1

05/21/2018 HEARING - DISPOSITIONAL CONFERENCE NOTICE SENT ELECTRONICALLY ON 05/23/2018 CR_200, Rev. 07 /15 Page 1 of 7 Printed on: 05/08/2019

1

1 STEPHEN R SINGLETON KBNCD-CR-2018-00910

DOCKET RECORD 1 05/21/2018 BAIL BOND - PR BAIL BOND FILED ON 05/21/2018

Date Bailed: 05/21/2018

05/23/2018 Charge(s): l

MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 05/21/2018

05/23/2018 Charge(s): l

MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 05/23/2018 BRIC WALKER , JUDGE COPY TO PARTIES/COUNSEL

05/23/2018 Party(s) : STEPHEN R SINGLETON ATTORNEY - APPOINTED ORDERED ON 05/23/2018

Attorney: ANDREW DAWSON 06/19/2018 HEARING - DISPOSITIONAL CONFERENCE NOT HELD ON 06/19/2018 at 08:30 a.m. in Room No. l

WILLIAM STOKES I JUSTICE Attorney: ANDREW DAWSON DA: TRACY DEVOLL A NEW DATE GIVEN

06/19/2018 Charge(s): l

HEARING - DISPOSITIONAL CONFERENCE SCHEDULED FOR 07/17/2018 at 08:30 a.m. in Room No. 1

06/19/2018 Charge(s): 1

HEARING - DISPOSITIONAL CONFERENCE NOTICE SENT ELECTRONICALLY ON 06/19/2018

07/17/2018 Charge(s): 1

HEARING - DISPOSITIONAL CONFERENCE HELD ON 07/17/2018 at 08:30 a.m. in Room No. l

BRIC WALKER , JUDGE Attorney: ANDREW DAWSON DA: DAVID SPENCER Defendant Present in Court

07/17/2018 Charge(s): 1

TRIAL - DOCKET CALL SCHEDULED FOR 09/05/2018 at 08:45 a.m. in Room No. 1

07/18/2018 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 07/17/2018

Attorney: 07/26/2018 LETTER -

ANDREW DAWSON FROM NON-PARTY FILED ON 07/26/2018

Attorney: MATTHEW NICHOLS ENTER HIS APPEARANCE AS A CONSULTING ATTY FOR THE DEF.

08/21/2018 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 08/28/2018 at 08:30 a.m. in Room No. 1

NOTICE TO PARTIES/COUNSEL 08/21/2018 HEARING - MOTION TO SUPPRESS NOTICE SENT ELECTRONICALLY ON 08/21/2018

08/22/2018 Charge(s): 1

TRIAL - DOCKET CALL NOTICE SENT ON 08/21/2018

EMAIL 09/04/2018 Charge(s): 1

TRIAL - DOCKET CALL CONTINUED ON 09/04/2018

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MOTION TO SUPPRESS STILL UNDER ADVISEMENT W/ JUSTICE DELAHANTY 09/04/2018 Charge(s): 1

TRIAL - DOCKET CALL SCHEDULED FOR 10/03/2018 in Room No. 1

09/12/2018 HEARING - MOTION TO SUPPRESS HELD ON 08/28/2018 THOMAS B DELAHANTY II, JUSTICE Defendant Present in Court

09/12/2018 MOTION - MOTION TO SUPPRESS UNDER ADVISEMENT ON 08/28/2018 THOMAS B DELAHANTY II, JUSTICE

09/12/2018 CASE STATUS - CASE FILE LOCATION ON 08/28/2018

FILE W/ J. DELAHANTY ROXANNE

09/14/2018 Charge Cs): 1 TRIAL - DOCKET CALL CONTINUED ON 09/14/2018

09/14/2018 Charge(s): 1 TRIAL - DOCKET CALL SCHEDULED FOR 12/05/2018 at 09:30 a.m. in Room No.

09/14/2018 Charge(s): 1 TRIAL - DOCKET CALL NOTICE SENT ON 09/14/2018

10/09/2018 CASE STATUS - CASE FILE RETURNED ON 10/04/2018 THOMAS B DELAHANTY II, JUSTICE

10/09/2018 MOTION - MOTION TO SUPPRESS DENIED ON 10/01/2018 THOMAS B DELAHANTY II, JUSTICE 10/9/18: COPY TO COUNSEL AND DA

10/09/2018 Party(s): STEPHEN R SINGLETON ATTORNEY -

Attorney: 10/15/2018 MOTION -

RETAINED ENTERED ON 07/26/2018

MATTHEW NICHOLS MOTION TO RECONSIDER FINDING FILED BY DEFENDANT ON 10/15/2018

Attorney: ANDREW DAWSON

1

STEPHEN R SINGLETON KBNCD-CR-2018-00910

DOCKET RECORD

PAPERWORK W/

MOTION TO RECONSIDER DENIAL OF MOTION TO SUPPRESS- SCJWNBD TO J. DELAHANTY SCAN STATES RESPONSE TO J.

DELAHANTY WHEN IT COMBS IN· 10/23/2018 OTHER FILING - OTHER DOCUMENT FILED ON 10/23/2018

Attorney: ANDREW DAWSON TRANSCRIPT ORDER FORM - MOTION TO SUPPRESS HEARING 8/28/18

10/23/2018 MOTION - MOTION TO PREPARE TRANSCRIPT FILED BY DEFENDANT ON 10/22/2018

Attorney: ANDREW DAWSON AT STATE EXPENSE

10/29/2018 MOTION - MOTION TO PREPARE TRANSCRIPT GRANTED ON 10/26/2018 BRIC WALKER I JUDGE COPY TO PARTIES/COUNSEL

10/29/2018 Charge(s): 1 NOTE - OTHER CASE NOTE ENTERED ON 10/29/2018

ATTY NICHOLS IS A CONSULTING ATTORNEY FOR ATTY DAWSON, ALL NOTICES TO CONTINUE TO GO TO CR_200, Rev. 07/15 Page 3 of 7 Printed on: 05/08/2019

3

1 STEPHEN R SINGLETON

ATTY DAWSON

KENCD-CR-2018-00910

DOCKET RECORD 1 10/29/2018 Party(s): STEPHEN R SINGLETON

ATTORNEY - LIMITED ENTERED ON 10/29/2018

Attorney: MATTHEW NICHOLS 11/21/2018 OTHER FILING - TRANSCRIPT FILED ON 11/19/2018

12/04/2018 OTHER FILING - OTHER DOCUMENT FILED ON 11/15/2018

DA: DAVID SPENCER STATE'S RESPONSE TO DEFENDANT'S MOTION TO RECONSIDER ITS DENIAL OF DEFENDANT'S MOTION TO SUPPRESS.

12/05/2018 Charge(s): 1 TRIAL - DOCKET CALL HELD ON 12/05/2018 M MICHAELA MURPHY , JUSTICE

12/05/2018 Charge(s): 1 TRIAL - DOCKET CALL CONTINUED ON 12/05/2018

12/05/2018 Charge(s): 1 TRIAL - DOCKET CALL SCHEDULED FOR 02/06/2019 at 09:15 a.m. in Room No. 1

12/13/2018 MOTION - MOTION TO RECONSIDER FINDING DENIED ON 12/05/2018 THOMAS E DELAHANTY II, JUSTICE COPY TO PARTIES/COUNSEL

12/13/2018 ORDER - COURT ORDER ENTERED ON 12/05/2018 THOMAS E DELAHANTY II, JUSTICE ORDER ON DEFENDANTS MOTION FOR RECONSIDERATION OF THE COURTS ORDER MOTION TO SUPPRESS

01/16/2019 Charge(s): 1 TRIAL - DOCKET CALL NOTICE SENT ON 01/16/2019

EMAIL 01/28/2019 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 01/28/2018

02/01/2019 MOTION - MOTION TO CONTINUE MOOT ON 01/31/2019 M MICHAELA MURPHY , JUSTICE

02/06/2019 Charge(s): 1 TRIAL - DOCKET CALL NOT HELD ON 02/06/2019

02/06/2019 TRIAL - JURY TRIAL SCHEDULED FOR 02/07/2019 at 08:30 a.m. in Room No. 3

DENYING HIS

NOTICE TO PARTIES/COUNSEL JURY SELECTION 02/06/2019 TRIAL - JURY TRIAL NOTICE SENT ON 02/06/2019

02/07/2019 TRIAL - JURY TRIAL NOT HELD ON 02/07/2019

02/07/2019 Charge(s): 1 HEARING - MISDEMEANOR PLEA HELD ON 02/07/2019 in Room No. 3 M MICHAELA MURPHY , JUSTICE At tomey: ANDREW DAWSON DA: DAVID SPENCER Reporter: TAMMY DROUIN Defendant Present in Court

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READING WAIVED 02/07/2019 Charge(s): 1

PLEA - GUILTY ENTERED BY DEFENDANT ON 02/07/2019

Defendant Present in Court

CONDITIONAL 02/07/2019 charge(s): 1

OTHER FILING - OTHER DOCUMENT FILED ON 02/07/2019

Attorney: ANDREW DAWSON DA: DAVID SPENCER CONDITIONAL PLEA AGREEMENT

STEPHEN R SINGLETON KBNCD-CR-2018-00910

DOCKET RECORD

PARTIES CERTIFY THAT RECORD IS ADEQ FOR APPEL. REVIEW AND THE CASE IS NOT APPROP FOR APPLIC. OF THE HARMLESS ERROR DOCTRINE. PARTIES AGREE THAT:l. IF APPEAL IS UNSUCCESSFUL THEN PARTIES JOINTLY RECOMMEND MAN MIN SENTENCE. 2.THERE IS NO AGREEMENT AS TO Hai PARTIES WILL PROCEED IF APPEAL IS SUCCESSFUL. APPEAL ON THE DENIAL OF MOTION TO SUPRRESS

02/07/2019 ORDER - COURT ORDER ENTERED ON 02/07/2019 M MICHAELA MURPHY I JUSTICE THE COURT APPROVES THE ENTRY OF A CONDITIONAL GUILY PLEA PURSUANT TO MRU CRIM.P 11 A 2


ROXANNE'S DESK, WAITING FOR APPEAL TO BB FILED 02/11/2019 APPEAL - NOTICE OF APPEAL FILED ON 02/11/2019

02/11/2019 Charge(s): 1 MOTION - MOTION TO PREPARE TRANSCRIPT FILED BY DEFENDANT ON 02/11/2019

AT STATE EXPENSE

COMPLETED AND FORWARDED TO TRANSCRIPT TRANSCRIPT AND AUDIO ORDER FORM

OFFICE BY CTA CATHERINE SMITH FOR MOTION TO SUPPRESS HEARING AUGUST 28 20181:20:09 - 2:00:35

02/12/2019 Charge(s): 1 MOTION - MOTION TO PREPARE TRANSCRIPT GRANTED ON 02/12/2019 GEOFFREY RUSHLAU I JUDGE COPY TO PARTIES/COUNSEL

02/15/2019 CASE STATUS - CASE FILE RETURNED ON 02/15/2019


APPEAL SHELF 03/01/2019 APPEAL - MANDATE/ORDER FILED ON 03/01/2019

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE ORDER DIRECTING TRIAL COURT TO ENTER SENTENCE. IT IS ORDERED THAT THE PROVISIONS OF MR APP.P 3(B) ARE SUSPENDED TO PERMIT THE TRIAL COURT TO SENTENCE SINGLETON AS SOON AS PRACTICABLE. THE COURT MUST RETAIN THE FILE UNTIL SINGLETON HAS BEEN SETNENCED OR MARCH 18, 2019 WHICHEVER COMBS LATER. COPIES TO COUNSEL OF RECORD

03/05/2019 HEARING - SENTENCE HEARING SCHEDULED FOR 03/06/2019 at 10:00 a.m. in·Room No. 3 M MICHAELA MURPHY I JUSTICE

03/05/2019 HEARING - SENTENCE HEARING NOTICE SENT ELECTRONICALLY ON 03/05/2019

03/06/2019 HEARING - SENTENCE HEARING HELD ON 03/06/2019 CR_200, Rev. 07/15 Page 5 of 7 Printed on: 05/08/2019

5

M MICHAELA MURPHY I JUSTICE

STBPHBN R SINGLETON ~ KENCD-CR-2018-00910

DOCKET RECORD l 03/06/2019 BAIL BOND - PR BAIL BOND AMENDED ON 03/06/2019

M MICHAELA MURPHY I JUSTICE LIFT CONDITIONS ONLY PR BAIL Date Bailed: 05/21/2018

03/07/2019 Charge(s): l FINDING - GUILTY ENTERED BY COURT ON 03/06/2019

03/07/2019 Charge(s): l RULING - ORIGINAL ORDERED ON 03/06/2019 M MICHAELA MURPHY I JUSTICE It is adjudged that the defendant is guilty of l QUI (ALCOHOL), l PRIOR 29-A 2411(1-A) (B) (1) Class D as charged and convicted.

The defendant is sentenced to the KENNEBEC COUNTY JAIL for a term of 7 day(s).

Execution stayed pending appeal.

The defendant shall serve the initial portion of the foregoing sentence at the county jail in KENNEBEC.

It is ordered that the defendant's motor vehicle operator's license or permit to operate, right to operate and right to apply for and obtain a license is suspended for a period of year(s). Charge #1: It is ordered that the defendant forfeit and pay the sum of $ 700.00 as a fine to the clerk of the court, plus applicable surcharges and assessments.

5% GENERAL FUND ADDL 5% SURCHARGE $ 35.00 $ 30 DEPARTMENT OP TRANSPORTATION PINES 1% COUNTY JAIL$ 7.00 3% MAINE CRIMINAL JUSTICE ACADEMY 2006 $ 21.00 100% GENERAL FUND $ 700.00 $ 20 VICTIMS COMPENSATION FUND 10% GOV'T OPERATION SURCHARGE FUND $ 70.00 1% MSP COMPUTER CRIMES $ 7.00 TOTAL DUE:$ 890.00.

03/07/2019 Charge(s): l RULING - ORIGINAL ISSUED ON 03/06/2019 M MICHAELA MURPHY I JUSTICE DEPENDANT ACKNOWLEDGES RECEIPT

03/07/2019 Charge(s): l ABSTRACT - BMV ISSUED ON 03/07/2019

03/07/2019 OTHER PILING - FINE PAYMENT SCHEDULE ORDERED ON 03/07/2019

INSTALLMENT PYMTS: O;DAILY: P;WEEKLY: P;BI-WEEKLY: P;MONTHLY: P;BI-MONTHLY: P;PYMT BEGIN: AT O;PYMT IN PULL: 20200620 AT O;THRU PPO: P;PYMT DUE AMT: 890;PMT DUE: 20200620 AT O;OTHER:

03/07/2019 CASE STATUS - CASE PILE LOCATION ON 03/07/2019

APPEAL SHELP 03/18/2019 ORDER - COURT ORDER ENTERED ON 03/18/2019

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M MICHAELA MURPHY , JUSTICE

STEPHEN R SINGLETON KENCD-CR-2018-00910

DOCKET RECORD

J/MURPHY AMENDED ORDER OF SUSPENSION, STAYED PENDING APPEAL, REINSTATEMENT FEB IS WAIVED.

EXTRA INFORMATION WRITTEN ON 3/18/19 AS TO BMV ISSUES SUSPENSION (EVEN THO PBNDIN APPEAL WAS WRITTEN 3/6/19)

03/20/2019 Charge(s): 1 APPEAL - RECORD ON APPEAL DUB IN LAW COURT ON 03/18/2019

03/20/2019 Charge(s): 1 APPEAL - RECORD ON APPEAL SENT TO LAW COURT ON 03/20/2019

03/20/2019 BAIL BOND - PR BAIL BOND CONT AS POST CONVIC ON 03/20/2019

ON APPEAL Date Bailed: 05/21/2018

03/20/2019 OTHER FILING - OTHER DOCUMENT FILED ON 03/01/2019

NOTICE OF DOCKETING IN THB LAW COURT 19-60 ASSIGNED.

03/21/2019 NOTE - OTHER CASE NOTE ENTERED ON 03/21/2019

DOCKET NO. KENCLBRK TO SEND FILE BY 3/18/19.

RECEIVED A PHONE CALL FROM THE DEFENDANT INDICATING HIS LICENSE IS SUSPENDED. THE COURT ORDERED npENDING ABPPBAL". SPOKE WITH DMV AND THEY INDICATED THBY WANTED A JUDGE'S ORDER.

JUSTICE MORPHY AGAIN ORDRED LICENSE SUSPENDED PBNDING APPEAL. ORDER WAS FAXED TO DMV ON 3/18/19. AS OF THIS DATE, 3/21/19 IT SILL SHOWS DEFENDANT LICENSE IS SUSPENDED. COURT HAS CALLED DMV AND LEFT SEVERAL MESSAGES WITH ANNETTE OLIVER BUT NO RETURN CALL.

03/26/2019 CASB STATUS - CASB FILE RBTURNBD ON 03/20/2019

SENT TO LAW COURT

PJ:NE PAYMENT SCHEDULE Execution/payment stayed to pay in full by 06/20/2020 or warrant to issue.

A TRUE COPY ATTEST:

Clerk

CR_200, Rev. 07/15 Page 7 of 7 Printed on: 05/08/2019

7

STATE OF MAINE KENNEBEC, SS

STA TE OF MAINE

vs.

STEPHEN SINGLETON Defendant

SUPERIOR COURT Criminal Action: Docket No. CR-18-00910

DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

The defendant is charged with operating a motor vehicle under the influence of intoxicants,

29-A M.R.S. §2411(1-A)(B)(1)1• The defendant was seen operating his vehicle on Route 17 in

Manchester on New Year's Eve, December 31, 2017.2 Trooper Daniel Murray of the Maine State

Police inquired of the defendant whether he had been drinking: Singleton replied "No". Trooper

Murray then noticed approximately 20 or so bottles and cans behind the driver's seat He asked

Singleton to get out of the vehicle.

After observing the defendant for several minutes, the trooper asked the defendant if he

would take a test. Singleton did not give Trooper Murray a definite answer and was very evasive

despite multiple requests. Eventually, Singleton said he would take a breath test He was taken to

the Augusta Police Department (APP) for the admjnjstration of a breath test by an Intoxilyzer

machine kept at the APD for use by a number of law enforcement agencies in the greater Augusta

area. After several attempts the. machine continued to show an "error" message and Trooper

Murray concluded it was not working properly. He then decided that he would take the defendant

to the Maine General Medical Center in Augusta to obtain a blood sample as a substitute test as

allowed by statute. 29-A M.RS. §2521(2).

At the hospital, the trooper explained the blood test process and presented the

with a so-called ''airchfield Waiver Form", State's Exhibit A; see, Birchfield v.

1 The complaint alleges that the defendant had a blood test result of ".08 grams or more of alcohol; per 100 milliliters of blood .... " Additionally, the complaint alleges that this offense is ·a second offense within a ten-year period.

2 The defendant does not challenge probable cause for the stop.

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North Dakota, 516 U.S.__, 136 S.Ct. 2160 (2016). The waiver form informed the defendant

that he was:

1. " ... under arrest for operating under the influence"; 2. "I am requesting your free and voluntary consent to search your blood for the purposes

of looking for evidence of intoxicants. You do not have to consent, but if you do, any evidence found will be used against you in court" {Initialed by defendant).

3. ''If you refuse to consent to this blood test, the State may levy administrative sanctions against your driver's license and enhance your criminal penalty if you get convicted of OUI. However, you cannot be crimina]Jy punished merely for refusing to consent to the blood test. (Initialed by defendant).

4. ''Having the above facts in mind, I (signed by defendant) freely and voluntarily: ... Consent to give a blood test. (Circled)3

The waiver form was signed by the defendant, wi1nessed by the trooper, dated and noted with the

applicable time.

After hearing, the court finds that the defendant was aware of his options and the

consequences of not taking a test. Singleton did consent to a breath test which was not available

due to a malfunctioning machine.4 · Failure to take a breath test has the same administrative

consequences as are applicable for failure to take a blood test. 5

Although a search warrant may be required to obtain a blood sample under Birchfield @

136 S. Ct 2186 (2016); a sample can be obtained in Maine with the defendant's informed consent

State v. LeMeunier-Fitzgerald, 2018 ~ 85.

In LeMeunier-Fitzgerald, the Law Court, in a 4-3 decision, distinguished Maine's statute

from North Dakota's which included a threat of a separate iildependent criminal charge for refusing

to submit to testing. In Maine, the possible consequences of refusing to take a test relate to

suspension of the right to operate, the admissibility of the refusal as evidence at trial, and increased

minimum penalties for purposes of sentencing upon conviction. An enhanced minimum sentence

3 The "Birchfield Waiver Fonn" provided for an alternative of "Refuse to give a blood test" which was not chcled.

4 "A law enforcement officer shall administer a breath test unless, in that officer's determination, a breath test is unreasonable. If a breath test is determined to be unreasonable, another chemical test must be administered in place ofa breath test! 29-A M.R.S. §2521(2).

5 "The Secretmy of State shall immediately suspend the license of a person who fiills to sulmit to and complete a test" 29-A M.R.S. §2521(5). See also, 29-A MR.S. §2521(6) which specifies the period of suspension, but does not distinguish among the different types of chemical tests.

2 9

for failing to take a test are subject to the same maximum as defendants who submit to a test of

their blood-alcohol level. The enhanced minimum sentence is well within the statutory upper limit

that applies to all cases. 6

The clerk will make the following entry as the Order of the court:

After hearing, the defendant's Motion to Suppress is DENIED.

So Ordered.

Dated: October 4, 2018

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6 A defendant may be subject to enhanced minimum sentences when certain aggravating &ctors are present 1 other than refusal to submit to a test; e.g., prior convictions for O~ causing serious bodily injury, causing death, exceeds the speed limit by 30 miles per hour or mme, eludes a police officer or operates with a passenger under 21

1.

year of age. 29-A M.llS. §2411 (S). J

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STATE OF MAINE KENNEBEC,~

STATE OF MAINE

vs.

(

STEPHEN SINGLETON Defendant

(

SUPERIOR COURT Criminal Action Docket No. CR-18-00910

ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION OF THE COURT'S

ORDER DENYING ms MOTION TO SUPPRESS

AUGUSTA COURTS :;Ee J.f> '18 eir.;11:25

The defendant is charged with operating a motor vehicle under the influence of

intoxicants, 29-A M.R..S. §241 l(l-A)(B)(1)1• The defendant was seen operating his

vehicle on Route 17 in Manchester on New Year's Eve, December 31, 2017. 2

The defendant consented to a breath test to determine his blood alcohol level, but

the Intoxilyzer machine at the Augusta Police Department was inoperable. The trooper

then took the defendant to the local hospital for the administration of a blood test. After

hearing, the comt found that the defendant consented to the blood test and that his

consent was voluntary.

The defendant's attorney subsequently filed a Motion for Reconsideration of the

Order denying the Motion to Suppress. Upon inquiry by the clerk as to what course the

court wished to follow, I asked the clerk to inquire of the State's attorney as to whether

he would be filing a reply. He replied that he would. Counsel for the defendant informed

the court that a transcript had been requested and that it would not be available until the

end of November and that he would like to file a supplemental memo after reviewing the

transcript. The court requested the clerk to inform both counsel that simultaneous memos

on the Motion for Reconsideration must be filed no later than Wednesday, December 5,

2018, regard!~ of whether the transcript has been prepared.

1 The complaint alleges that the defendant bad a blood test result of".08 grams or more of alcohol; per 100 milliliters of blood ..•. " Additionally, the complaint alleges that this oftense is a second offense within a ten-year ~~ ' 2 The defendant does not challenge probable cause for the stop.

11

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The State filed a reply memo on December 5. The defendant did not file a

supplemental memo.

After review of counsels' memoranda and the original decision and Order, the

court remains convinced that the defendant's consent to submitting to the taking of a

blood sample for the purpose of determining his blood alcohol level was knowing and

voluntary.

The clerk will make the following entry as the Order of the court:

The defendant's Motion to Reconsider the Denial of Defendant's Motion to

·"Suppress is denied.

So Ordered.

Dated: December 5, 2018

2

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STATE OF MAINE KENNEBEC,ss

STATE OF MAINE

v.

STEPHEN R. SINGLETON

UNIFIBD CRIMINAL DOCKET DOCKET NO. KENCD-CR-18-910

CONDITIONAL PLEA AGREEMENT

Pursuant to M.R.U.Crim.P l l(a)(2) the Defendant is entering a conditional guilty plea

contingent upon appellate review of the denial of the Defendant's Motion dated July 17, 2018, to

Suppress.

The parties hereby certify that:

1. The record is adequate for appellate review, and 2. The case is not appropriate for application of the hannless error doctrine.

The parties hereby agree that:

1.. If the Defendant's appeal is unsuccessful, then the parties will jointly recommend the mandatory minimum sentence for the single count in this case.

2. There is no agreement as to how the parties will proceed if the Defendant's appeal is successful.

February 7, 2019

February 7, 2019

ORDER

~Dll'PifOl':""Spencer, Asst. DA Attorney for the State Bar No. 2685

Andrew T. Dawson, Esquire Attorney for the Defendant Bar No. 4663

The Court approves the entry of a conditional guilty plea pursuant to M.R. U .Crim.P 11 (a)(2).

Date: __...~_l_r_J,_(1_

13

'_State Of•• . UNIFIED CRIMINAL DOCKET [iJii1~Mli'..NT A.ND CC.M\\IU"fMENT I Docket No. County/Location g'MaJe D Female Date: DOB

KENCD-CR-2018-00910 KENNEBEC Z>HPf \C\ 06/15/1984

State of Maine v. STEPHEN R SINGLErON Residence: 160 BOND BROOK ROAD

AUGUSTA ME

_Offense(s).charged:------- ·--·---- --- --··--··-- ---· ·---·-----·--·-- -- -Charged by:._ ... ____ OUI (ALCOHOL), 1 PRIOR Charge:l D indicbnent a ass: D DOV: 12131/2017 Seq#: 12944 Title: 29-A / 2411/l-AIB/'1

D infonnation

Plea(s): G( Guilty D Nolo D Not Guilty ['gJ complaint

Date of Violation(s):

~ense(s) convicted: Convicted on: OUI (ALCOHOL), 1 PRIOR Charge: 1 [Jflea

Cass: D DOV: 12/31/2017Seq #: 12944 Title: 29-A / 2411 / l-A I B / l Ojwy verdict

D court finding

It is adjudged that the defendant is guilty of the offenses as shown above and convicted.

g It is adjudged that the defendant be hereby conunitted to the sheriff of the within named county or his authorized representative who shall without needless delay remove the defendant to: D The custody of the Commissioner of the Department of Corrections, at a facility designated by the Commissioner, to be punished

by imprisonment for a tenn of

rn' A County jail to be punished by imprisonment for a term of -, ~~,,~ •

D This sentence to be served (consecutively to)(concurrently with)

~ Execution stayed to on or before: ~"~~~ at (a.m.)(p.m.)

Notice to Defendant: Your sentence does not include any asmrance about the location of the facility where you will be housed during your commitment

D It is ordered that all (but) of the sentence (as it relates to confmement)(as it relates to the ) be suspended and the defendant be placed on a period of

D probation D supervised release D administrative release fora tennof (years)(months) upon conditions attached hereto and incorporated by reference herein.

D said probation or supervised release to commence < J (upon completion of the unsuspended

D term of imprisonment). said administrative release to commence immediately.

D The defendant shall serve the initial portion of the foregoing sentence at a County jail.

B'n is ordered that the defendant folfeit and pay the sum of$ IC>C'J. as a fine to the clerk of the court, plus applicable surcharges and assessments.

DAil but$ suspended. The total amount due, including surcharges and assessments is $ C::OC\ D. This amount is payable immediately or in accordance with the Order on Payment of fines incorporated by reference herein.

CR-121, Rev.10/15 Page 1 of 3

KENCD-CR-2018-00910

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r 0 It is ordered that the defendant forfeit and pay the sum of$ as restitution for

. the benefit of

r 1..17-A M.R.S. § 1152-2-A). 0 Restitution isjointandseveralpursuantto 17-A M.R.S. § 1326-E.

0 Restitution is to be paid through the Office of the prosecuting attorney, except that during any period of commitment to the

r Department of Corrections and/or any period of probation imposed by this sentence, restitution is to be paid to the Department of Corrections.

-· ... 0 .. Asepamte order for income.withholding has been entered pursuant to17!"A.M.R.S .. § 1326-:B incorporated.by reference.herein.--·-· 0 Execution/payment stayed to pay in full by r 0 Installment payments of to be made (weekly) (biweekly) (monthly) or warrant to issue

0 Restitution is to be paid to the Department of Corrections on a schedule to be detennined by the Department

r ci'n is ordered pursuant to applicable statutes, that the defendant's motor vehicle operator's license or pennit to operate, right to operate a motor vehicle and right to apply for and obtain a license and/or the defendant's right to register a motor vehicle is suspended in accordance with notice of suspension incorporated herein.

r 0 It is ordered that the defendant perform hours of court-approved community service work within (weeks) (months) for the benefit of

r 0 It is ordered that the defendant pay $ for each day served in the county jail, to the treasurer of the abovenamedcounty.(upto$80/Day)(17-A M.R.S. § 1341)

D Execution/payment stayed to pay in full by or wanant to issue.

r 0 It is ordered that the defendant shall participate in alcohol and other drug education, evaluation and treatment programs for multiple offenders administered by the office of substance abuse. (29 M.R.S. § 1312-B (2)(D-l), 29-A M.R.S. § 2411 (5)(F))

r 0 It is ordered that the defendant forfeit to the state the firearm used by the defendant during the commission of the offense(s) shown above. (17-A M.R.s. § 1158)

r 0 It is ordered that the defendant is prohibited from owning, possessing or having under the defendant's control a firearm. (15 M.R.S. § 393) (1-A)(l) and (1-B)

r D Other:

r D It is ordered that the defendant be unconditionally discharged. (17-A M.R.S. § 1201)

If the defendant has been convicted of an applicable offense listed in 25 M.R.S. § 1574, then the defendant shall submit to having a DNA sample drawn at any time following the commencement of any tenn of imprisonment or at any time following commencement of

n the probation period as directed by the probation officer.

WARNING: ITIS A VIOLATION OF STATE LAW,AND MAY BE A VIOLATION OF FEDERAL LAW,FOR THE

r DEFENDANT TO OWN, POSSESS OR HA VE UNDER THEIR CONTROL A FIREARM IF THAT PROHIBmON HAS BEEN ENTERED AS PART OFTHIS JUDGMENT OR ANY OTHER COURT ORDER.

It is further ordered that the clerk deliver a certified copy of this judgment and commitment to the sheriff of the above named county or his authorized representative and that the copy serve as the commitment of the defendant. Reasons for imposing consecutive sentences are contained in the court record or in attachments hereto.

t All pending motions, other than motions relating to payment of fees and bail are hereby declared moot (except .)

~ V' A TRUECOPY,ATICST: Oerk Judge£~

r CR-121, Rev.10/15 Page2of 3

r KENCD-CR-2018-00910

15

I understand the sentence imposed herein and acknowledge receipt of a copy of this JUDGMENT AND COMMITMENT. I hereby • acknowledge that the disclosure of my Social Security number on the Social Security Disclosure Form is mandatory under 36 M.R.S. §

5276-A. My Social Security number will be used to facilitate the collection of any fine that has been imposed upon me in this action if that fine remains unpaid as of the time I am due a State of Maine income tax refund. My Social Security number also may be used to facilitate the collection of money I may owe the State of Maine as a result of having had an attorney appointed to represent me. Collection of any fine or reimbursement of money, which I owe to the State of Maine, will be accomplished by offsetting money I owe to the State against my State of Maine income tax refund.

- ----··--·gj-;-··--7··----·······---··· .... --··- --- ··- -Pate: {.p I / ~

CR-121, Rev.10/15 Page 3of 3

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STATE OF MAINE KENNEBEC, SS

STATR OF MAINE

v.

STEPHEN R. SINGLETON DOB: 6/15/1984 SIN: MEI005239 160 Bond Brook Rd. Augusta, ME 04330 G: Male Ht: 6'3" Wt: 165 H: Brown E: Hazel R: White

UNIFIEDC~MINAL COURT LOCATION: AUGUSTA

DOCKETNO: \fs-iJO

COMPLAINT

COUNT 1: CRIMINAL OUI

The undersigned officer, being duly sworn, states upon information and belief that:

COUNT 1: 29-A M.R.S.A. §2411(1-A)(B)(l) Seq No: 12944 CRIMINAL OUI CLASSD ATNCTN 257521B001

On or about December 31, 2017, in Manchester, Kennebec County, Maine, STEPHEN R. SINGLETON, did operate a motor vehicle while under the influence of intoxicants or while having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath.

STEPHEN R SINGLETON had one previous OUI offense within a ten year period. STEPHEN R. SINGLETON was convicted of OPERATING UNDER THE INFLUENCE on August 04, 2014, in the Augusta Superior Cout1,.Docket No. AUGSC-CR-14-59.

Sworn to before me, [Orff IQ

OFFICER: Daniel Murray DEPT:. Maine State Police ARRAIGNMENT: May 21, 2.018 JW#: 18-1634

'2018

Prosecutor: Tyler J:-LeClair ----- ·- ·- --- - -Jail Requested

cOM¥LAJNANT

17

STA TE OF MAINE KENNEBEC, SS.

UNIFIED CRIMINALCOURT Doc. No.: KENCD-CR-18-910

STATE OF MAINE,

v. MOTION TO SUPPRESS

STEPHEN SINGLETON, Defendant

) ) ) ) ) )

NOW COMES, Stephen Singleton, Defendant in the above captioned matter, by and through undersigned counsel and states the following:

1. The Defendant is charged with Operating Under the Influence (prior) (Class D).

2.

3.

4.

The evidence in this case is based on the arrest, detention, and illegal search of the Defendant in violation of the Fourth Amendment of the United States Constitution, to wit:

a Prior to the arrest, Trooper Murray informed Defendant that he would go to jail if he did not agree to take the test.

b. The arresting officer did not read any warnings to Defendant about the consequences of refusing a test.

c. No warrant was sought prior to administration of a blood draw, and no exigent circumstances were demonstrated prior to administering the blood draw.

d. Trooper Murray did not inform Defendant that he could elect to have a physician perfonn the blood draw.

e. A "Birchfield Waiver Form" was presented to the Defendant that purportedly showed Defendant's consent to the blood draw, but it did not infonn the Defendant of anything more than vague consequences of refusal, and therefore c~ot be considered to be "voluntary" consent.

The blood test was taken in a manner that violated the State's Implied Consent law and the consent that was received was gathered in a manner consistent with Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). The blood test in this case violated Defendant's right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution.

Any evidence gathered as a result of the illegal search and seizure must be suppressed from the State's case-in-chief.

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WHEREFORE, Defendant respectfully requests that this Honorable Court find that the search of the Defendant by taking a blood sample without valid consent violated the Fourth Amendment, and suppress the evidence gathered from the illegal search from the State's case-in-chief.

DATED at Augusta this 17th day of July, 2018. ~ ~n

Maine Bar No. 4663 Attorney for Stephen Singleton


19

4

1 the consent was obtained. I think that's fair.

2 MR. DAWSON: Yeah, yeah. I think that's a good way to 1 '

3 sum it up.

4 Your Honor, I have a oral motion to amend a typographical

5 error in my motion --

6 THE COURT: Yes?

7 MR. DAWSON: -- that was brought to my attention by Mr.

8 Spencer. Paragraph 3 of my motion, the evidence -- the ,

9 consent was received in a manner consistent with Birchfield.

10 It should say not consistent with Birchfield. So that's a

11 fairly major faux pas that Mr. Spencer brought it to my 1 12 attention.

13 MR. SPENCER: I have no objection, obviously, to that

14 motion, Your Honor.

15 THE COURT: Very good, okay. Are we ready?

16 MR. SPENCER: And I'd call Tpr. Daniel Murray.

17 THE COURT OFFICER: Sir, if you could just stand and face

18 the clerk and raise your hand.

19 THE CLERK: Would you please state your name and spell it

20 for the record?

21 TPR. MURRAY: Daniel Murray. D-A-N-I-E-L, M-U-R-R-A-Y.

22 THE CLERK: And do you solemnly swear or affirm that the

23 testimony you shall give in the cause now in hearing shall be

24 the truth, the whole truth, and nothing but the truth?

25 TPR. MURRAY: I do.

)

lii'#H (973)406-2250 I QPtUlb ... •s:1 lbc1z• t l-..tK~.1 .. t 20

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STATE OF MAINE KENNEBEC, SS.

UNIFIEDCRIMINALCOURT Doc. No.: KENCD-CR-18-910

STATE OF MAINE, ) )

v. ) ) )

MOTION TO RECONSIDER DENIAL OF MOTION TO SUPPRESS

STEPHEN SINGLETON, ) Defendant )

NOW COMES, S~ephen Singleton, Defendant in the above captioned matter, by and through

undersigned counsel and states the following, in support of a request for the Court to reconsider

its ruling on his Motion to Suppress:

1. Defendant is charged with Operating Under the Influence (1 prior) (Class D), in which he

submitted to a blood test after an extended detention.

2.

3.

Defendant filed Motion to Suppress evidence, specifically the blood test, on the grounds

that it was not collected based on his voluntary consent. No other exception to the

warrant requirement existed at the time the test was taken. A hearing was held on August

28, 2018. The order in this matter was dated October 4, 2018, docketed on October 10,

2018, and received by counsel on October 11, 2018.

At hearing, the arresting officer, Trooper Daniel Murray, testified to the following facts:

a.

b.

c.

During the vehicle stop, he had an extended exchange with Defendant regarding

whether Defendant would take a breath test, after which time he took Defendant's

evasiveness as a refusal, put him in handcuffs, and placed him in the police cruiser

while he conducted a vehicle search.

At the conclusion of the vehicle search, which lasted roughly 15 minutes, he again

asked Defendant whether he would take a breath test, at which time Defendant

agreed.

Defendant was transported to the Augusta Police Department, where after an

Page 1 of 4

21

4.

d.

e.

f.

g.

extended amount of time, it became clear that the machine for collecting breath

~pies was not working due to the extreme cold weather. At that time, Trooper

Murray concluded that a blood test would be necessary.

Trooper Murray said the following words to Defendant, "Would you be willing to

go to the hospital to take a blood test," at which point Defendant indicated initial

agreement. Trooper Murray then stated, "That one you have to sign off for, you

have to sign a waiver for your blood." (emphasis added).

After infonning Defendant that he would not have to pay for the test, Defendant

indicated that he would take the test.

After Defendant indicated his initial agreement to the blood test, Trooper Murray

said, "And then afterward, sort of what we'll do, is we don't get the results right

back for the blood test, so this is what will happen, take the blood test, I'll cut you

a summons, we'll call your girlfriend, have her meet us at the car, does that

work?"

Forms regarding consent were signed at MaineGeneral hospital before Defendant

took the blood test.

h. Trooper Murray did not review the Secretary of State "Implied Consent Form" at

any time during this encounter with Defendant.

For a blood test conducted without a warrant to be valid, it must be collected pursuant to

a recognized exception to the warrant requirement. Birchfield v. North Dakota, 136 S.

Ct 2160, 2173-2176. Consent is a valid exception, and that consent must be given

voluntarily. State of Maine v. LeMeunier-Fitzgerald, 2018 ME 85, 'J 21; Schneckloth v.

Bustamante, 412 U.S. 218 (1973). The totality of the circumstances must be evaluated

top determine whether consent was voluntary. Birchfield, 136 S. Ct. at 2186. Consent to

a blood test may not be inferred through mere acquiescence, but only after the officer has

probable cause to believe that the operator has "operated under the influence and specifies

the consequences for a refusal to submit." State v. Boyd, 2017 ME 36, 'J 13. Failure of an

officer to provide correct infonnation to a suspect in the context of implied consent has

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5.

6.

been held to be a violation of a defendant's due process rights. State v. Stade, 683 A.2d

164, 166 (Me. 1996).

In this case, after he initially indicated that he did not want to take a breath test,

Defendant was placed in handcuffs and required to sit in the front seat of a police vehicle

while he watched his vehicle being searched for roughly 15 minutes. At that time, he was

given an opportunity to change his mind regarding a breath test, which he did. Defendant

was then transported to the police station, and brought into the booking room for a period

of 28 minutes prior to the determination that the breath test was not an available option.

At that time, Trooper Murray informed Defendant that he would have to sign a waiver for

his blood. He did not inform Defendant at that time of the need for the consent to be

voluntary, or that he did not have to submit to that particular test. Nor were any of the

statutory warnings for implied consent administered, other than the "Birchfield Waiver

Form." Upon Defendant's initial agreement to take the test, Trooper Murray informed

Defendant that he would be released to his girlfriend at the car.

The events leading to Defendant's eventual acquiescence to the "Birchfield Waiver

Form" and the counterpart form required by MaineGeneral Medical Center involved a

series of actions and consequences where Defendant could see the results of refusal.

While he may have been informed of the words of the fonn when he signed it, he had

already seen through Trooper Murray's words and actions that if he refused he would be

taken to jail, presumably without any further process, and ifhe acquiesced to the test, he

would be released. In State v. LeMeunier-Fitzgerald, the question was whether consent

was valid after statutory warnings, including the Implied Consent form that includes the

specific consequences of an individual's failure to submit to a test. LeMeunier

Fitzgerald, 2018 ME 85,, 4. In the instant case, Defendant was not informed of the

specific consequences regarding failure to take a test other than what was broadly outlind

Page3 of 4

23

in the "Birchfield Waiver Fonn."1 The totality of the circumstances in the instant case

was such that Defendant did not make an infonned choice to consent to the test, rather he

acquiesced to the test after seeing the direct consequences administered in the moment,

and made the simple choice to take the test and not go to jail.

7. Due to the totality of the circumstances, the Court should find that the Defendant's

consent was not voluntary.

WHEREFORE, Defendant respectfully asks this Honorable Court to reconsider its decision to

deny the Motion to Suppress, find that the facts established at hearing establish that the totality of

the circumstances indicate that the blood test was not gathered pursuant to valid consent and that

it should be suppressed from evidence, and enter any other relief as may be justified under the

circumstances.

DATEDatAugustathis 12thdayof0ctober,2018. ~----~n Maine Bar No. 4663 Attorney for Stephen Singleton


1 The "Birchfield Waiver Fonn" which was admitted into evidence at hearing by the State reads in Paragraph 3, "If you retbse to consent to this blood test, the State may levy administrative sanctions against your driver's license and enhance your criminal penalty if you get convicted of OUI. However you cannot be punished merely for retbsing to consent to this blood tesl" No other area of the fonn outlines administrative or judicial sanctions with any increased detail.

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STATE OF MAINE KENNEBEC, ss.

STATE OF MAINE

v.

STEPHEN SINGLETON

UNIFIED CRIMINAL DOCK.ET LOCATION: AUGUSTA DOCKET NO: CR-18-910

STATE'S

MODIFIED RESPONSE TO DEFENDANT'S MOTION TO RECONSIDER ITS DENIAL OF DEFENDANT'S MOTION TO SUPPRESS

The State, having now had access to the transcript of the August 28, 2018, hearing, is

filing this modified response to the Defendant's motion requesting the Court to reconsider its

denial after hearing of the Defendant's motion to suppress the results of the analysis for alcohol

content of blood drawn from the defendant after his arrest for OUI. The only ground asserted for

that motion to suppress was that the defendant's signed consent to have his blood drawn was not

given voluntarily.

When, as in this case, the State asserts that the fruits of a warrantless search were

obtained legally pursuant to the consent of the defendant, it is the State's burden to prove by a

preponderance of the evidence that an objective manifestation of consent was given by word or

gesture and, looking at all the circumstances, that consent was neither coerced by explicit or

implicit means, by implied threat covert force or duress nor induced by deceit, trickery or

misrepresentation. State v. LeMeunier-Fitzgerald, 2018 ME 85 ifif 21 and 22.

On the night in question, the defendant was operating a motor vehicle on Western

Ave. in Manchester when he was stopped by Trooper Daniel Murray for a registration plate

25

light being out. Hearing Transcript, hearinafter "HT, 11 at 5-6. Upon making observations

which led to Trooper Murray to believe the defendant was under the influence of

intoxicating liquor (HT 6-8), the trooper asked the defendant if he would take an

intoxilyzer test. The State agrees with the characterization of what happened then as

stated in subparagraphs number 3.a. and 3.b. of the Defendant's Motion to Reconsider

which states:

During the vehicle stop, [Trooper Murray] had an extended exchange with the Defendant regarding whether Defendant would take a breath test, after

which time he took Defendant's evasiveness as a refusal, put him in

handcuffs, and placed him in the police cruiser while [Trooper Murray]

conducted a vehicle search. Although the only portion of that exchange put

into evidence at the hearing was from 14:00 to 15:30 of the Cruiser video.

(HT at 19-20, 33).

At the conclusion of the vehicle search, which lasted roughly 15 minutes (HT

at 20-21), [Trapper Murray] again asked Defendant whether he would take a

breath test, at which time Defendant agreed. This is on the Cruiser video

33 :29 to 34:00, which was the only portion of that video regarding this time

the trooper asked the defendant if he'd take a test on the intoxilyzer. (HT at

21-22, 33-34)

The State disagrees with the defendant's conclusion that evidence compelled

the hearing justice to find that the State had not proven by a preponderance of the

evidence that the defendant's ultimate consent to the blood test, or even his consent

to the breath test1 although that is not an issue here, had not been voluntary.

At the police station, the intoxilyzer failed to function properly. (HT at 22-

23) The video from the police station was played from 28:29 to 29:24. (HT at 23-

25, 34). Playing that video showed that Trooper Murray informed the defendant

26

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that the intoxilyzer was not working correctly, and Trooper Murray then asked the

defendant, "Would you be willing to go to the hospital to take a blood test." The

defendant replies with what appears to be actual enthusiasm, "Whatever you need

me to do. I'll take a piss test, a blood test." Trooper Murray then said, "That one, you

have to sign off for it. You have to sign a waiver to take your blood." The defendant,

still apparently enthusiastic about taking such a test, asks, "Do you have the

paperwork?" to which Trooper Murray replies, "No." In his Motion to Reconsider,

the defendant does not assert that at anytime up to that point Trooper Murray had

told the defendant that he would be released if he took a test and not released if he

did take a test.

As is shown in police station from 28:29 to 29:24. (HT at 23-25, 34), after

receiving that oral consent from the defendant, Trooper Murray did tell the

defendant that because they would not get an immediate result from the blood test,

after taking the defendant to the hospital the trooper would bring the defendant

back to his car to meet up with his girlfriend for a ride home.

As was noted by the hearing justice in his decision denying the defendant's

Motion to Suppress, at the hospital the defendant was presented with the so-called

"Birchfield Waiver From," which was admitted into evidence a the hearing as State's

Exhibit A, and a copy of which is attached hereto. The defendant initialed or signed each

line thereof and then signed that waiver giving his consent to having his blood drawn for

testing. (State's Exhibit A, HT at 11-14) That procedure clearly supports the finding that

27

process put the defendant correctly on notice of the officer's purpose for requesting the

blood draw (i.e., to look for evidence of intoxicants which could be used against the

defendant), that the defendant could refuse to take the test, that a refusal could lead to

administrative sanctions against his license, and enhance the criminal penalty if he was

convicted of OUI, but that he could not be criminally punished merely for refusing the

test. Those warnings regarding the consequences of a refusal were accurate and not a

basis for finding that the defendant gave his consent less than voluntarily. See

LeMeunier-Fitzgerald

Wherefore, the State respectfully requests that the Court confinn its decision

denying the Defendant's Motion to Suppress.

Dated: December 5, 2018 David M. Spencer, Asst. DA Attorney for the State Bar# 2685

cc. Andrew T. Dawson, Esquire (by e-mail w/attachment)

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28 1


State's Exhibit 1

Birchfield Waiver Form

1. I am a law enforcement officer and.I !t'l.ve placed you under arrest for Operating Under the Influence._.)_'~----

Initial

2. I am requesting your free and voluntary consent to search your blood for the purposes of looking for evidence of intoxicants. You do not have ~o consent, but ~£y9u do any evidence found will be used against you in court. 'SJCJ

Initial

3. If you refuse to consent to this blood test, the State may levy administrative sanctions against your driver's license and enhance your criminal penalty if you get convicted of OUI. However, you cannot be crjinigaJly punished merely for refusing to consent to this blood test. -~----

Initial

4. Having the above facts in mind, I ..:P..,l.. S r'j /.-=-voluntarily:

Print Name

freely and

Circle One: Refuse to ·ve a blood test

I. °'.) -'17 1 r1 Time: --..:.--~----------Time: 0 0-1.

29

MaineGeneral ' · Medical Center~

("·) State's Exhibit 2

At~ment A. to MGH Policy Rl-28 p.1

Patient Label

Law Enforcement Request and Consent for Blood Alcohol Test

Name of Person to be Tested: · .- '(£ Pfl£ rJ R. · $ / rJ&f_~ -Of\} Date of Birth:Ofe/Lt;,/~l/

I

Section I (Law Enforcement Officer's Attestation): To be completed by Jaw enforcement officer.

I, ~VIie..\ M· Mucc~ . . ,asaduiyswomlaw enforcement officer, do hereby attest thatl m authorized to request that a blood alcohol test be conducted on the above-named person pursuant to:

o A duly authorized search warrant issued by a court of competent jurisdiction. (Attach copy of warrant.)

o A duly authorized court order issued by a court of competent jurisdiction. (Attach copy of court order.)

M The test subject's voluntary consent. J' (Obtain test subject's consent below.)

)\ A determination made by me that (i) probable cause exists to believe that -the above .. named person has been involved in an alcohol-related motor vehicle, hunting, watercraft, snowmobile or accident that has resulted in or will result in a death, or (ii) that other legal justification exists for conducting a warrant-less blood alcohol test without the subject's consent.

I am requesting that MaineGeneral Medical Center clinical staff conduct the blood alcohol test on the basis of theTegal authority indicated above.

I further attest that I am solely responsible for advising the subject of the test of the legal consequences of submitting or refusing to submit to the blood alcohol test and that it is not MaineGeneral Medical Center's, or its clinical staffs, .responsibility to advise the test subject about these legal consequences.

_!I r[r:i oliieJ

. Mv nted Name of Law Enforcemen Officer

Signature of Law Enforce ent Officer

N\°' ~ .u_ _ :ss±°' lf ?a ( , \s.@ Town, City or Other Jurisdiction of Officer

l 1

~

I

, I

, I

.,

, j

l .1

I ~11111 11111 1 Hiil llHlllllll l 3(900700

r r r r r r r r r r r r r r r r r r

• Attachment A. to MGH Polley Rl .. 28

p.2

Patient Label

Section II (Test Subjecf s Consent): Must be completed by subject of test if test is to be conducted p~~~ent.

I, / ~-- [Patient's Printed Name], at the request of a law enforcement officer, hereby voluntarily consent to a blood test for the determination of my blood alcohol level. I understand and acknowledge that by giving my consent I am authorizing MaineGeneral Medical Center healthcare professionals to comply with the law enforcement officer's request and to conduct the blood alcohol test.

I understand that the blood alcohol test involves a needle stick to draw a blood sample which will be used to perform a laboratory test to detennine my blood alcohol concentration level. I understand that the risks of the blood alcohol test procedure include, but not are not limited to, pain, discomfort, bruising at the injection site, and possible infection. I further acknowledge that the nature and medical risks of the blood alcohol test and procedure have been explained to me.

I further understand that if I refuse to consent to the blood alcohol test, I may be subject to certain law enforcement sanctions, which have been explained to me by a law enforcement officer, but that MaineGeneral Medical Center will continue to provide

~riite jdY. care to me as necess~ ----

Date Signature of Test Subject

oJbr!t~ ~fll]J\;\ e I oate Witness' Signature

Original: Medical Record Copy: Laboratory

Revised: 1/10, 1/16 Reviewed: 1 /12

~ ;e., flll, fVl Vl'ra Witness' Printed Name

11m1111~1m1J1im1111111

docket n.: ken-19-60 appellce stephen singleton,...docket n.: ken-19-60 sta te of maine, appellce v....

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