MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	108	
Docket:	      Ken-17-523	
Submitted	
  On	Briefs:	 June	27,	2018	
Decided:	     July	26,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                   ROWE	L.	PALMER	
	
	
HJELM,	J.		

       [¶1]		Rowe	L.	Palmer	appeals	from	a	judgment	entered	by	the	trial	court	

(Kennebec	County,	E.	Walker,	J.)	after	a	jury	trial,	convicting	him	of	aggravated	

operating	under	the	influence	(Class	C),	29-A	M.R.S.	§	2411(1-A)(D)(1)	(2017),	

and	 aggravated	 assault	 (Class	 B),	 17-A	 M.R.S.	 §	 208(1)(A)	 (2017).	 	 Palmer	

argues	 that	 the	 court	 (Mullen,	 D.C.J.)	 erred	 by	 denying	 part	 of	 his	 motion	 to	

suppress	evidence	of	his	alcohol	level	determined	from	a	sample	of	his	blood	

that	was	seized	without	a	warrant.		Because	the	court	did	not	err	by	concluding	

that	probable	cause	existed	and	exigent	circumstances	justified	the	warrantless	

blood	draw,	we	affirm	the	judgment.		
2	

                                            I.		BACKGROUND	

          [¶2]		The	motion	court	found	the	following	facts	that	are	supported	by	

competent	 evidence	 presented	 at	 the	 suppression	 hearing.	 	 State	 v.	 Turner,	

2017	ME	185,	¶	2,	169	A.3d	931.			

          [¶3]		At	approximately	4:00	p.m.	on	January	4,	2016,	while	traveling	in	

Chelsea,	 Palmer	 drove	 a	 truck	 across	 the	 centerline	 of	 the	 road	 in	 a	 posted	

45-mile-per-hour	 zone.	 	 Palmer’s	 truck	 collided	 head-on	 with	 an	 oncoming	

vehicle.		That	other	vehicle	came	to	rest	on	its	roof.		A	deputy	sheriff	and	other	

first	 responders	 were	 dispatched	 to	 the	 scene,	 where	 mechanical	 equipment	

was	needed	to	extract	the	two	occupants	from	the	vehicle	that	Palmer	struck.		

Palmer	 was	 pinned	 inside	 his	 vehicle	 with	 extensive	 injuries	 and	 had	 to	 be	

removed	by	rescue	personnel.		Both	occupants	of	the	other	vehicle	were	also	

injured.		One	was	taken	to	Central	Maine	Medical	Center	by	medical	helicopter,	

and	the	other	occupant	and	Palmer	were	transported	separately	by	ambulance	

to	Maine	General	Medical	Center.			

          [¶4]	 	 While	 Palmer	 was	 being	 driven	 to	 the	 hospital	 by	 ambulance,	 a	

sample	 of	 his	 blood	 was	 taken	 with	 the	 use	 of	 a	 blood	 kit	 provided	 by	 law	

enforcement.1		Around	6:30	p.m.,	Deputy	Sheriff	Jacob	Pierce	was	instructed	to	


     1	 	 A	 law	 enforcement	 officer	 requested	 this	 blood	 draw	 because	 he	 believed	 that	 death	 could	

possibly	result	from	the	collision.		See	29-A	M.R.S.	§	2522(1),	(2)	(2017)	(requiring	law	enforcement	
                                                                                                                 3	

meet	Palmer	at	the	hospital.		When	Pierce	arrived	at	the	hospital,	he	saw	Palmer	

and	 Palmer’s	 wife	 in	 an	 examining	 room	 along	 with	 medical	 personnel.		

Following	up	on	the	blood	draw	taken	in	the	ambulance,	Pierce	noticed	that	the	

blood	kit	used	in	the	ambulance	was	expired.		Pierce	left	the	hospital	to	obtain	

an	 unexpired	 blood	 kit,	 and	 when	 he	 returned,	 a	 member	 of	 the	 hospital’s	

medical	 staff	 told	 him	 that	 Palmer	 was	 about	 to	 go	 into	 surgery.	 	 Pierce	

informed	the	staff	member	that	he	needed	a	blood	sample	from	Palmer.			

        [¶5]		During	Pierce’s	interactions	with	Palmer,	he	did	not	notice	the	smell	

of	alcohol.		While	waiting	for	a	member	of	the	medical	staff	to	arrive	to	take	a	

blood	 sample,	 however,	 Pierce	 overheard	 Palmer	 tell	 his	 family	 that	 he	 had	

consumed	 “a	 few	 beers	 with	 lunch.”	 	 Pierce	 told	 Palmer	 that	 he	 would	 need	

another	 blood	 draw	 and	 explained	 the	 reasons	 why	 the	 sample	 taken	 in	 the	

ambulance	could	not	be	used.		Palmer	did	not	refuse	the	request,	but	Pierce	did	

not	recall	at	the	motion	hearing	asking	for	Palmer’s	consent,	and	Palmer	was	

unable	to	sign	a	consent	form	because	of	injuries	to	his	dominant	hand.		Pierce	




to	administer	a	blood	test	on	the	driver	of	a	motor	vehicle	involved	in	a	collision	for	which	there	is	
probable	cause	to	believe	that	death	has	occurred	or	will	occur	as	a	result	of	that	collision).		The	court	
suppressed	 the	 results	 of	this	 blood	 draw	 because	 Palmer	 did	 not	 consent	to	 it	 and	there	 was	 an	
insufficient	 basis	 for	 the	 officer	 to	 believe	 that	 death	 would	 occur	 as	 a	 result	 of	 the	 accident.		
Additionally,	the	court	found	that	the	State	did	not	prove	that	Palmer	consented	to	the	blood	draw	at	
the	 hospital,	 which	 is	 the	 blood	 sample	 at	 issue	 here.	 	 The	 State	 does	 not	 challenge	 any	 of	 these	
determinations	on	appeal.				
4	

did	not	seek	a	search	warrant	because,	due	to	Palmer’s	impending	surgery,	he	

“needed	 to	 expedite	 the	 process.”	 	 The	 motion	 hearing	 record	 shows	 that	 a	

phlebotomist	took	a	sample	of	Palmer’s	blood,	which	Pierce	secured	as	part	of	

the	investigation.			

      [¶6]	 	 Several	 months	 later,	 Palmer	 was	 charged	 by	 criminal	 complaint	

with	 one	 count	 of	 aggravated	 criminal	 OUI	 (Class	 C),	 29-A	 M.R.S.	

§	2411(1-A)(D)(1),	 that	 included	 an	 allegation	 that	 Palmer	 caused	 serious	

bodily	injury	to	another.		Palmer	was	ultimately	indicted	for	that	charge	and	

one	count	of	aggravated	assault	(Class	B),	17-A	M.R.S.	§	208(1)(A),	based	on	an	

allegation	that	Palmer’s	conduct	created	a	substantial	risk	of	death	or	extended	

convalescence	 necessary	for	the	recovery	of	physical	health.		He	pleaded	 not	

guilty	to	each	charge	and	filed	a	motion	to	suppress	the	evidence	resulting	from	

the	two	blood	draws.		After	holding	a	hearing	on	the	motion,	in	an	order	issued	

in	November	of	2016,	the	court	(Mullen,	D.C.J.)	granted	the	motion	to	the	extent	

that	it	requested	suppression	of	the	evidence	derived	from	the	blood	sample	

taken	 in	 the	 ambulance,	 see	 supra	 n.1,	 but	 denied	 that	 part	 of	 the	 motion	

relating	 to	 the	 blood	 draw	 at	 the	 hospital.	 	 The	 court	 found	 that	 there	 was	

probable	cause	to	support	the	seizure	of	a	blood	sample	and	that	there	were	
                                                                                        5	

exigent	circumstances	obviating	the	need	for	a	warrant.		The	court	made	the	

following	factual	findings	supporting	the	latter	conclusion:	

      [Palmer]	 had	 been	 involved	 in	 a	 serious	 motor	 vehicle	 accident	
      involving	serious	injuries	to	three	people.		There	was	evidence	that	
      [Palmer]	was	responsible	for	the	accident.		[Palmer]	stated	that	he	
      had	consumed	alcohol	earlier	in	the	day.		[Palmer]	was	about	to	go	
      into	surgery	and	the	officer	was	told	that	the	officer	only	had	a	few	
      minutes	because	“[Palmer]	needed	surgery.”			

      [¶7]		A	two-day	jury	trial	was	held	in	October	of	2017,	where	Palmer	was	

found	guilty	of	both	charges.		The	following	month,	the	court	sentenced	Palmer	

on	the	aggravated	assault	charge	to	eight	years’	incarceration	with	all	but	three	

years	suspended	and	a	three-year	period	of	probation,	and	he	was	ordered	to	

pay	restitution	of	approximately	$8,700	to	the	occupants	of	the	other	vehicle	

involved	in	the	collision.		On	the	aggravated	OUI	charge,	the	court	imposed	a	

concurrent	three-year	prison	term,	a	fine	and	assessments	totaling	$2,620,	and	

a	 six-year	 motor	 vehicle	 license	 suspension.	 	 Palmer	 filed	 a	 timely	 notice	 of	

appeal.		M.R.	App.	P.	2B(b).			

                                   II.		DISCUSSION	

	     [¶8]		Palmer	asserts	that	Pierce	did	not	have	probable	cause	to	obtain	a	

sample	of	his	blood	and	that	exigent	circumstances	did	not	exist	to	justify	the	

warrantless	seizure.		On	an	appeal	from	an	order	granting	or	denying	a	motion	
6	

to	suppress,	we	review	factual	findings	for	clear	error	and	issues	of	law	de	novo.		

State	v.	Cote,	2015	ME	78,	¶	9,	118	A.3d	805.			

       [¶9]		For	more	than	fifty	years,	it	has	been	established	that	“[t]he	taking	

of	a	blood	sample	for	purposes	of	chemical	analysis	to	produce	evidence	is	 a	

search	 and	 seizure	 .	 .	 .	 .”	 	 State	 v.	 Libby,	 453	 A.2d	 481,	 484	 (Me.	 1982);	 see	

Birchfield	 v.	 North	 Dakota,	 579	 U.S.	 ---,	 136	 S.	 Ct.	 2160,	 2173-85	 (2016);	

Schmerber	v.	California,	384	U.S.	757,	767	(1966);	State	v.	LeMeunier-Fitzgerald,	

2018	ME	85,	¶	11,	---	A.3d	---.		Protections	created	by	the	Fourth	Amendment	

require	a	search	to	be	reasonable.		U.S.	Const.	amend.	IV.		A	search	is	reasonable	

for	 constitutional	 purposes	 only	 if	 it	 is	 authorized	 by	 a	 warrant	 or	 if	 an	

exception	to	the	warrant	requirement	is	present.		See	id.;	State	v.	Boyd,	2017	ME	

36,	 ¶	 8,	 156	 A.3d	 748.	 	 One	 of	 those	 exceptions	 is	 the	 existence	 of	 exigent	

circumstances.	 	 Id.	 	 Thus,	 if	 a	 law	 enforcement	 officer	 has	 probable	 cause	 to	

believe	 that	 a	 driver	 is	 operating	 under	 the	 influence,	 and	 if	 exigent	

circumstances	exist	to	justify	a	warrantless	seizure	of	a	sample	of	the	operator’s	

blood,	a	warrant	is	not	required	for	the	seizure.		See	Libby,	453	A.2d	at	484.		In	

other	words,	“probable	cause	and	exigent	circumstances	justify	the	warrantless	

taking	 of	 a	 blood	 sample.”	 	 Id.	 	 Here,	 Palmer	 challenges	 the	 court’s	
                                                                                       7	

determinations	of	probable	cause	and	exigent	circumstances.		We	address	each	

in	turn.	

A.	   Probable	Cause	

      [¶10]		The	standard	for	probable	cause	is	a	familiar	one:	it	exists	where	

information	allows	a	prudent	and	cautious	person	to	believe	that	a	crime	was	

or	is	being	committed.		State	v.	Lagasse,	2016	ME	158,	¶	13,	149	A.3d	1153.		In	

the	context	of	an	OUI	investigation,	“an	officer	only	needs	evidence	sufficient	to	

support	 the	 reasonable	 belief	 ‘that	 the	 person's	 senses	 are	 affected	 to	 the	

slightest	degree,	or	to	any	extent,	by	the	alcohol	that	person	has	had	to	drink.’”		

State	 v.	 Forsyth,	 2002	 ME	 75,	 ¶	 14,	 795	 A.2d	 66	 (quoting	 State	 v.	 Webster,	

2000	ME	115,	¶	7,	754	A.2d	976).		Information	that	contributes	to	a	finding	of	

probable	 cause	 includes	 the	 suspect’s	 responsibility	 for	 a	 motor	 vehicle	

collision,	see	State	v.	Baker,	502	A.2d	489,	491-92	(Me.	1985),	and	“an	admission	

by	 the	 driver	 that	 he	 had	 consumed	 alcohol,”	 see	 Turner	 v.	 Sec’y	 of	 State,	

2011	ME	22,	¶	11,	12	A.3d	1188.			

      [¶11]	 	 Here,	 the	 court	 was	 presented	 with	 evidence	 that	 a	 law	

enforcement	officer	who	responded	to	the	scene	of	the	crash	determined	that	

it	 was	 caused	 by	 Palmer	 when	 he	 crossed	 over	 the	 centerline	 of	 a	

45-mile-per-hour	 section	 of	 road	 and	 crashed	 into	 an	 oncoming	 vehicle.		
8	

Several	hours	later,	Pierce	heard	Palmer	admit	to	one	or	more	family	members	

at	the	hospital	that	he	had	consumed	a	few	alcoholic	beverages	earlier	in	the	

day.	 	 Evidence	 of	 the	 collision	 that	 had	 no	 apparently	 benign	 explanation,	

combined	 with	 Palmer’s	 admission	 to	 having	 consumed	 alcohol	 before	 the	

accident	occurred,	is	sufficient	to	support	the	court’s	determination	that,	when	

Pierce	obtained	the	blood	sample	at	the	hospital,	there	was	probable	cause	to	

believe	that	Palmer	had	committed	the	crime	of	OUI.		See	Turner,	2011	ME	22,	

¶	11,	12	A.3d	1188;	Forsyth,	2002	ME	75,	¶	14,	795	A.2d	66;	Baker,	502	A.2d	at	

491-92.			

B.	   Exigent	Circumstances	

	     [¶12]	 	 We	 next	 turn	 to	 the	 question	 of	 whether	 there	 were	 exigent	

circumstances	 that	 justified	 the	 warrantless	 blood	 draw	 at	 the	 hospital.	 	 The	

State	 has	 the	 burden	 of	 proving	 “by	 a	 preponderance	 of	 the	 evidence	 that	

exigent	 circumstances	 excusing	 the	 warrant	 requirement	 existed.”	 	 State	 v.	

Arndt,	2016	ME	31,	¶	9,	133	A.3d	587.		Exigent	circumstances	exist	where	the	

totality	of	the	circumstances	demonstrates	that	“there	is	a	compelling	need	to	

conduct	 a	 search	 and	 insufficient	 time	 in	 which	 to	 secure	 a	 warrant.”	 	 Id.	

(quotation	marks	omitted);	see	Missouri	v.	McNeely,	569	U.S.	141,	149	(2013).		

“A	claim	of	exigent	circumstances	.	.	.	must	be	evaluated	in	terms	of	the	time	
                                                                                    9	

when	 the	 law	 enforcement	 authorities	 first	 had	 an	 opportunity	 to	 obtain	 a	

search	warrant	.	.	.	.”		State	v.	Dunlap,	395	A.2d	821,	824	(Me.	1978).			

      [¶13]		The	“natural	dissipation	of	alcohol	in	the	blood,”	by	itself,	is	not	

sufficient	to	establish	exigent	circumstances,	although,	in	some	circumstances,	

it	can	contribute	to	the	creation	of	an	exigency.		McNeely,	569	U.S.	at	156;	Arndt,	

2016	ME	31,	¶	10,	133	A.3d	587.		As	the	McNeely	Court	explained,	

    In	 those	 drunk-driving	 investigations	 where	 police	 officers	 can	
    reasonably	obtain	a	warrant	before	a	blood	sample	can	be	drawn	
    without	 significantly	 undermining	 the	 efficacy	 of	 the	 search,	 the	
    Fourth	 Amendment	 mandates	 that	 they	 do	 so.	 	 See	 McDonald	 v.	
    United	States,	335	U.S.	451,	456,	69	S.	Ct.	191,	93	L.	Ed.	153	(1948)	
    (“We	cannot	.	.	.	excuse	the	absence	of	a	search	warrant	without	a	
    showing	 by	 those	 who	 seek	 exemption	 from	 the	 constitutional	
    mandate	 that	 the	 exigencies	 of	 the	 situation	 made	 [the	 search]	
    imperative”).		We	do	not	doubt	that	some	circumstances	will	make	
    obtaining	a	warrant	impractical	such	that	the	dissipation	of	alcohol	
    from	 the	 bloodstream	 will	 support	 an	 exigency	 justifying	 a	
    properly	 conducted	 warrantless	 blood	 test.	 	 That,	 however,	 is	 a	
    reason	to	decide	each	case	on	its	facts,	as	we	did	in	Schmerber,	not	
    to	accept	the	“considerable	overgeneralization”	that	 a	per	se	rule	
    would	 reflect.	 	 Richards,	 520	 U.S.,	 at	 393,	 117	 S.	 Ct.	 1416,	 137	
    L.	Ed.	2d	615.			
    	
McNeely,	569	U.S.	at	152-53	(alteration	in	original).	

      [¶14]		A	circumstance	that	does	justify	a	warrantless	seizure	is	a	“now	or	

never”	situation—in	other	words,	where	an	officer	cannot	“reasonably	obtain	a	

warrant	before	a	blood	sample	can	be	drawn	without	significantly	undermining	
10	

the	efficacy	of	the	search.”		McNeely,	569	U.S.	at	152-53;	see	also	State	v.	Cormier,	

2007	ME	112,	¶	17,	928	A.2d	753.			

        [¶15]		That	was	the	case	here,	as	the	court	found.		The	police	did	not	have	

probable	cause	to	believe	that	Pierce	had	operated	while	under	the	influence	

until	 Pierce	 heard	 Palmer	 admit	 that	 he	 had	 consumed	 alcohol	 earlier	 in	 the	

day.		Until	then,	the	information	suggested	only	an	unexplained	collision,	albeit	

a	 serious	 one,	 for	 which	 Palmer	 was	 at	 fault.2	 	 By	 the	 time	 Pierce	 acquired	

evidence	that	alcohol	may	well	have	been	a	factor,	several	hours	had	already	

elapsed	since	the	time	of	the	accident,	allowing	for	some	metabolization	of	the	

alcohol	in	Palmer’s	system,	and	Palmer	was	about	to	go	into	surgery	because	of	

his	extensive	injuries.		During	that	surgery,	when	Palmer	would	not	be	available	

for	 a	 blood	 draw	 as	 part	 of	 the	 State’s	 investigation, 3	 Palmer’s	 body	 would	

further	metabolize	any	alcohol	that	might	be	in	his	blood.		Thus,	there	was	very	


   2		Palmer	argues	that	the	police	had	ample	opportunity	to	obtain	a	warrant	because	the	collision	

occurred	sometime	around	4:00	p.m.	and	Pierce	did	not	even	arrive	at	the	hospital	where	Palmer	had	
been	transported	until	after	6:30	p.m.		A	warrant	could	not	have	been	obtained	during	the	interim,	
however,	because	probable	cause	did	not	arise	until	shortly	before	a	sample	of	Palmer’s	blood	was	
taken	 at	 the	 hospital,	 when	 Pierce	 heard	 Palmer	 say	 that	 he	 had	 been	 drinking	 before	 the	 motor	
vehicle	crash.		See	State	v.	Dunlap,	395	A.2d	821,	824	(Me.	1978).			
   3		Palmer	argues	in	part	that	the	impending	surgery	did	not	create	any	urgency	for	the	police	to	

forego	a	warrant	because	a	blood	sample	could	have	been	taken	during	the	surgical	procedure.		We	
are	 not	persuaded	 by	 the	 suggestion	 that	we	 should	 expect	 a	surgical	 team,	 while	 operating	 on	a	
patient	for	extensive	injuries,	to	make	way	for	a	law	enforcement	officer	to	take	a	blood	sample	as	
part	of	a	criminal	investigation—setting	aside	the	question	of	whether	the	reliability	of	a	chemical	
analysis	of	a	blood	sample	would	have	been	compromised	by	the	administration	of	any	anesthesia	or	
other	medications	to	Palmer	as	part	of	the	surgical	process.			
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little	 time	 between	 the	 moment	 when	 probable	 cause	 came	 to	 exist	 and	 the	

surgery	 that	 created	 the	 exigency	 by	 making	 Palmer	 unavailable	 for	 the	

investigatory	blood	draw.		This	amounted	to	a	“now	or	never”	situation,	where	

a	delay	until	after	the	surgery	would	“significantly	undermin[e]	the	efficacy	of	

the	search.”		McNeely,	569	U.S.	at	152-53.			

         [¶16]		The	court	therefore	did	not	err	by	concluding	that	the	amount	of	

time	that	had	already	passed	from	the	time	of	the	accident	and	the	absence	of	

any	 meaningful	 opportunity	 for	 the	 officer	 to	 obtain	 a	 warrant	 created	 an	

exigency	 that	 justified	 the	 warrantless	 blood	 draw.	 	 Arndt,	 2016	 ME	 31,	

¶¶	10-11,	133	A.3d	587.				

         The	entry	is:	

                            Judgment	affirmed.		
	
	    	      	      	       	      	
	
Jeremy	 Pratt,	 Esq.,	 and	 Ellen	 Simmons,	 Esq.,	 Camden,	 for	 appellant	 Rowe	 L.	
Palmer	
	
Maeghan	 Maloney,	 District	 Attorney	 and	 Tyler	 J.	 LeClair,	 Asst.	 Dist.	 Atty.,	
Prosecutorial	District	IV,	Augusta,	for	appellee	State	of	Maine	
	
	
Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2016-796	
FOR	CLERK	REFERENCE	ONLY	
