November 20, 2018
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Maine police should not be able to coerce blood tests from OUI suspects

Seth Koenig | BDN
Seth Koenig | BDN
Maine Supreme Court Justice Joseph Jabar

Police in America can’t take a person’s blood without a warrant or freely given consent. It’s against the Fourth Amendment of the U.S. Constitution.

But where the rubber meets the road, Maine hasn’t gotten the news.

The recent case of Lyanne LeMeunier-Fitzgerald, a Belgrade woman arrested and charged with operating under the influence, shows how a Maine citizen can be coerced unconstitutionally into giving their blood to police, thinking they face penalties if they refuse.

That’s a big problem that Maine needs to fix.

In a split 4-3 decision, Maine’s Supreme Judicial Court last week ruled against LeMeunier-Fitzgerald, saying that she agreed to give her blood to the state for testing and that it could be used as evidence against her at trial. That’s a shocking ruling for many reasons, which go beyond OUI cases.

At the heart of this stage-setter for major violations of constitutional rights is a dumb problem: an outdated form printed by the Maine Bureau of Motor Vehicles.

The form, which was read to LeMeunier-Fitzgerald before she agreed to the blood draw, reads: “By operating or attempting to operate a motor vehicle in this State you have a duty to submit to and complete chemical tests to determine your alcohol level and drug concentration.”

But it’s not true. A U.S. Supreme Court ruling in 2016, Birchfield v. North Dakota, concluded that blood tests are searches that require either a warrant or consent from the person being searched. And consent must be given freely, without threat.

In a well-reasoned dissent in the Maine case, Justice Joseph Jabar focused on the language of the form Maine police officers rely on to communicate a citizen’s rights.

The language of the form draws no distinction between a breath test for alcohol — which is not deemed a search — and a blood test. But it very well should because courts have.

Under Maine law, a person suspected of operating a vehicle under the influence faces aggravated penalties — if ultimately convicted of drunken driving — for refusing tests to determine their blood-alcohol level.

But blood tests are different and the U.S. Supreme Court’s 2016 ruling invalidated such “duty-to-submit” laws as they relate to blood tests, which they found constitute a search under the Fourth Amendment.

If police can’t get a warrant, they then need permission from the person being searched. That permission must come freely, without the fear of punishment if they refuse, otherwise the search is unconstitutional and the evidence it produces can’t be used in court.

Importantly, that also means that refusal to submit to a blood test can’t itself be used as evidence in court.

But that’s not what was depicted for LeMeunier-Fitzgerald, who Jabar said was read “misrepresentations of the law.”

In this, it’s hard to fault the officer who read her the form letter, thinking he’d covered his bases in handling a routine OUI arrest. Keeping drunken drivers off of our roads is an incredibly important task, but the state cannot violate our rights in doing so.

The Secretary of State’s Office must fix the errors in its description of the law.

The ruling itself raises a bigger question: Can the state misrepresent the law to citizens in order to get them to comply with a search? With the court finding no fatal flaw in the language of that outdated form, it stands to reason they think so.

How far does that ability to misrepresent go? The answer to that question and the consequences of this ruling are a serious concern.

The state should not be able to misrepresent the law and threaten citizens with punishment in order to conduct searches without a warrant. That, too, is a danger to us all.

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