MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	36	
Docket:	   Yor-16-168	
Argued:	   December	15,	2016	
Decided:	  March	2,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       STATE	OF	MAINE	
                                              	
                                             v.	
                                              	
                                      ROBERT	I.	BOYD	JR.	
	
	
SAUFLEY,	C.J.	

        [¶1]		The	State	of	Maine,	with	the	approval	of	the	Attorney	General,	see	

15	M.R.S.	§	2115-A(1),	(5)	(2015);1	M.R.	App.	P.	21(b),	appeals	from	an	order	

of	 the	 court	 (York	 County,	 Driscoll,	 J.)	 granting	 Robert	I.	Boyd	 Jr.’s	 motion	 to	

suppress	 evidence	 obtained	 by	 drawing	 his	 blood	 and	 testing	 it	 for	 alcohol	

without	 obtaining	 a	 search	 warrant.	 	 The	 State	 challenges	 the	 court’s	

determination	that	the	State	failed	to	prove	that	Boyd	consented	to	the	blood	

draw,	 and	 argues	 that	 the	 search	 of	 Boyd’s	 blood	 did	 not	 violate	 the	 Fourth	

Amendment.		We	affirm	the	order	of	suppression.	




    1		Title	15	M.R.S.	§	2115-A(5)	was	recently	amended,	though	not	in	a	way	that	affects	this	appeal.		

See	P.L.	2015,	ch.	431,	§	23	(effective	July	29,	2016)	(codified	at	15	M.R.S.	§	2115-A(5)	(2016)).	
2	

                                   I.		BACKGROUND	

	     [¶2]		The	court	found	the	following	facts,	all	of	which	are	supported	by	

competent	evidence	in	the	record.		See	State	v.	Morrison,	2015	ME	153,	¶¶	2,	5,	

128	 A.3d	 1060.	 	 At	 about	 10:00	 a.m.	 on	 October	 14,	 2015,	 an	 officer	 of	 the	

Sanford	Police	Department	stopped	a	vehicle	operated	by	Boyd	for	continuing	

to	have	an	expired	inspection	sticker	one	month	after	having	been	stopped	for	

the	 expired	 sticker.	 	 In	 speaking	 with	 Boyd,	 the	 officer	 noticed	 the	 smell	 of	

alcohol	 on	 Boyd’s	 breath.	 	 The	 officer	 asked	 Boyd	 how	 much	 he	 had	 had	 to	

drink	 that	 day.	 	 Boyd	 said	 that	 he	 was	 hung	 over,	 but	 he	 denied	 having	 had	

any	alcohol	that	day.			

	     [¶3]	 	 The	 officer	 conducted	 multiple	 field	 sobriety	 tests	 and,	 based	 on	

what	he	observed,	determined	that	he	had	probable	cause	to	arrest	Boyd	for	

operating	 under	 the	 influence.	 	 See	 29-A	 M.R.S.	 §	 2411(1-A)	 (2016).	 	 The	

officer	arrested	Boyd	and	transported	him	to	the	Sanford	Police	Department	

to	administer	a	breath	test	for	alcohol.		See	29-A	M.R.S.	§	2411(4)	(2016).		The	

machine	there	malfunctioned,	and	the	officer	sought	another	location	with	an	

operational	 machine.	 	 The	 officer	 transported	 Boyd	 to	 the	 Wells	 Police	

Department	 where,	 during	 the	 fifteen-minute	 observation	 period	 before	 a	
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breath	 test	 could	 be	 administered,	 Boyd	 coughed	 several	 times,	 which	 could	

bring	alcohol	into	the	mouth	and	invalidate	the	test	results.	

	      [¶4]	 	 The	 officer	 then	 located	 a	 paramedic	 to	 draw	 a	 sample	 of	 Boyd’s	

blood.		The	officer	did	not	obtain	Boyd’s	consent	to	the	blood	test.		Nor	did	the	

officer	 read	 any	 warnings	 to	 Boyd	 about	 the	 consequences	 of	 refusing	 to	

submit	to	testing,	see	29-A	M.R.S.	§	2521(3)	(2016),	seek	or	obtain	a	warrant	

for	 the	 blood	 test,	 or	 inform	 Boyd	 that	 he	 could	 request	 that	 a	 physician	

perform	 the	 blood	 draw,	 see	 29-A	 M.R.S.	 §	2521(2)	 (2016).	 	 Boyd	 did	 not	

expressly	 refuse	 or	 object	 to	 the	 blood	 testing,	 and	 the	 paramedic	 drew	 his	

blood.			

	      [¶5]	 	 On	 November	 20,	 2015,	 Boyd	 was	 charged	 by	 complaint	 with	

operating	 under	 the	 influence	 (Class	 D),	 29-A	 M.R.S.	 §	 2411(1-A)(A),	 (5)	

(2016),	based	in	part	on	the	allegation	of	a	blood	test	measuring	0.15	grams	of	

alcohol	 per	 100	 milliliters	 of	 blood.	 	 Boyd	 pleaded	 not	 guilty	 and	 moved	 to	

suppress	 all	 evidence	 obtained	 through	 the	 blood	 test.	 	 The	 court	 held	 a	

hearing	on	the	motion	on	March	15,	2016.			

	      [¶6]	 	 In	 an	 order	 entered	 nine	 days	 later,	 the	 court	 ordered	 the	

suppression	 of	 the	 blood	 test	 result,	 finding	 that	 the	 officer	 did	 not	 obtain	 a	

warrant	 or	 seek	 Boyd’s	 consent,	 and	 that	 Boyd’s	 “amenability	 and	
4	

acquiescence	without	objection	to	[the	officer]’s	direction/command/request	

that	 he	 submit	 to	 a	 blood	 draw	 does	 not	 rise	 to	 the	 level	 of	 consent.”	 	 The	

court	 concluded	 that	 there	 were	 no	 exigent	 circumstances	 generating	 an	

exception	to	the	warrant	requirement	and	that	the	blood	sample	was	obtained	

in	violation	of	the	Fourth	Amendment.			

	      [¶7]	 	 With	 the	 written	 approval	 of	 the	 Attorney	 General,	 the	 State	

appealed	 from	 the	 court’s	 order.	 	 See	 15	 M.R.S.	 §	2115-A(1),	 (5);	 M.R.	

App.	P.	21(b).	

                                     II.		DISCUSSION	

	      [¶8]		A	blood	test	for	alcohol	or	drugs	is	different	from	a	breath	test	in	

that	it	is	more	intrusive	and	therefore	constitutes	a	search	that	more	seriously	

infringes	on	the	protections	of	the	Fourth	Amendment.		See		Birchfield	v.	North	

Dakota,	 579	 U.S.	 ---,	 136	 S.	 Ct.	 2160,	 2173-2185	 (2016).	 	 For	 the	 results	 of	 a	

blood	test	to	be	admissible	in	the	State’s	case-in-chief,	the	search	effectuated	

through	that	blood	test	must	meet	the	Fourth	Amendment’s	requirement	that	

a	search	be	reasonable.		See	id.	at	---,	136	S.	Ct.	at	2173.		A	search	is	reasonable	

if	it	is	conducted	pursuant	to	a	legally	obtained	warrant	or	if	an	exception	to	

the	 warrant	 requirement	 applies.	 	 See	 U.S.	 Const.	 amend.	 IV;	 Birchfield,	 579	

U.S.	at	---,	136	S.	Ct.	at	2173.		For	instance,	a	warrant	is	not	required	if	a	person	
                                                                                            5	

voluntarily	consents	to	the	blood	draw	or	if	exigent	circumstances	exist.		See	

Birchfield,	579	U.S.	at	---,	136	S.	Ct.	at	2173-74,	2185;	Missouri	v.	McNeely,	569	

U.S.	---,	133	S.	Ct.	1552	(2013);	Georgia	v.	Randolph,	547	U.S.	103,	109	(2006).	

	     [¶9]	 	 Here,	 the	 State	 does	 not	 argue	 that	 it	 obtained	 a	 warrant	 or	 that	

there	were	exigent	circumstances.		The	State	argues	only	that	the	court	erred	

in	 determining	 that	 Boyd	 did	 not	 consent	 to	 the	 search	 because	 Boyd’s	

acquiescence,	 combined	 with	 the	 effect	 of	 the	 “implied	 consent”	 statute,	

constituted	consent.			

	     [¶10]	 	 The	 State	 is	 correct	 that	 a	 search	 in	 the	 form	 of	 a	 blood	 test	 is	

reasonable,	 even	 without	 a	 warrant,	 if	 a	 person	 freely	 and	 voluntarily	

consents	to	the	search.		See	Randolph,	547	U.S.	at	109;	State	v.	Cress,	576	A.2d	

1366,	 1367	 (Me.	 1990).	 	 To	 demonstrate	 that	 the	 consent	 exception	 to	 a	

warrant	 requirement	 applies,	 however,	 the	 State	 must	 prove,	 “by	 a	

preponderance	of	the	evidence,	that	an	objective	manifestation	of	consent	was	

given	 by	 word	 or	 gesture.”	 	 State	 v.	 Bailey,	 2012	 ME	 55,	 ¶	 16,	 41	 A.3d	 535	

(quotation	marks	omitted).	

	     [¶11]	 	 Because	 the	 State	 bore	 the	 burden	 of	 proof	 and	 was	 the	

unsuccessful	party	before	the	suppression	court,	the	State	bears	the	burden	to	

demonstrate	on	appeal	“that	the	trial	court	was	compelled	to	make	findings	in	
6	

its	favor.”		State	v.	Collier,	2013	ME	44,	¶	6,	66	A.3d	563.		We	review	the	court’s	

findings	for	clear	error.		See	State	v.	Nadeau,	2010	ME	71,	¶	18,	1	A.3d	445.	

	     [¶12]	 	 The	 court	 was	 not	 compelled,	 based	 on	 the	 evidence	 presented,	

to	 find	 that	 Boyd’s	 acquiescence	 to	 the	 blood	 draw	 demonstrated	 his	

voluntary	 consent	 and	 overcame	 the	 warrant	 requirement.	 	 See	 Cress,	 576	

A.2d	at	1367	(holding	that,	to	demonstrate	voluntary	consent,	the	State	must	

show	 “more	 than	 a	 mere	 ‘acquiescence	 to	 a	 claim	 of	 lawful	 authority’”	

(quoting	 Bumper	 v.	 North	 Carolina,	 391	 U.S.	 543,	 549	 (1968))).	 	 The	 police	

officer	who	arrested	Boyd	testified	only	that	Boyd	did	not	object	to	testing	and	

that	 he	 was	 “very	 cooperative.”	 	 The	 paramedic	 similarly	 testified	 that	 Boyd	

did	not	object	to	the	blood	draw.		This	evidence	does	not	compel	a	finding	of	

an	objective	manifestation	of	voluntary	consent.		Bailey,	2012	ME	55,	¶	16,	41	

A.3d	 535;	 cf.	 Cress,	 576	 A.2d	 at	 1367	 (affirming	 the	 denial	 of	 a	 motion	 to	

suppress	 evidence	 obtained	 after	 the	 defendant	 taxidermist	 manifested	 his	

consent	 to	 the	 search	 by	 accompanying	 game	 wardens	 into	 his	 basement	

shop,	where	he	unlocked,	opened,	and	emptied	his	freezer).	

	     [¶13]	 	 Thus,	 we	 turn	 to	 the	 State’s	 argument	 that	 Maine’s	 “implied	

consent”	statute,	when	combined	with	Boyd’s	acquiescence	to	the	blood	draw,	

had	 the	 effect	 of	 establishing	 Boyd’s	 voluntary	 consent.	 	 Maine’s	 statute,	
                                                                                                                7	

although	still	entitled	“Implied	consent	to	chemical	tests,”	no	longer	provides	

that	 a	 person	 will	 be	 “deemed”	 to	 have	 consented	 to	 testing	 by	 operating	 a	

motor	 vehicle	 on	 Maine’s	 roads.	 	 Compare	 29-A	 M.R.S.	 §	 2521	 (2016),	 with	

29	M.R.S.A.	§	1312	(1978)	(deeming	a	person	who	operated	a	motor	vehicle	to	

have	consented	to	testing,	until	amended	by	P.L.	1981,	ch.	679,	§	12	(effective	

April	 15,	 1982)).2	 	 Rather,	 it	 now	 provides	 that	 a	 person	 “shall”	 submit	 to	

testing	upon	probable	cause	to	believe	that	he	or	she	has	operated	under	the	

influence	 and	 specifies	 the	 consequences	 for	 a	 refusal	 to	 submit	 despite	 the	

mandatory	 language	 and	 warnings.	 	 29-A	M.R.S.	 §	2521(1),	 (3),	 (5).		

Accordingly,	 the	 statute	 no	 longer	 allows	 an	 adjudicator	 to	 imply	 a	 driver’s	

consent	to	blood	testing	based	merely	on	the	driver’s	operation	of	a	vehicle.	

	        [¶14]		Had	the	officer	sought	and	received	Boyd’s	voluntary	consent,	the	

test	 results	 would	 have	 been	 admissible.	 	 See	 Cress,	 576	 A.2d	 at	 1367;	

Randolph,	547	U.S.	at	109.		If	Boyd	had	responded	to	the	request	for	consent	

by	 refusing	 to	 give	 it,	 the	 officer	 would	 have	 known	 to	 warn	 of	 the	


    2		 Cf.	 State	 v.	 Charlson,	 377	 P.3d	 1073,	 1075	 n.1,	 1079-81	 (Idaho	 2016)	 (holding	 that	 the	
operation	 of	 an	 implied	 consent	 statute	 by	 which	 a	 driver	 “shall	 be	 deemed	 to	 have	 given	 his	
consent”	 to	 testing	 is	 part	 of	 the	 totality	 of	 the	 circumstances	 relevant	 in	 determining	 a	 driver’s	
consent,	such	that	the	Fourth	Amendment	requires	courts	to	determine	whether	a	driver	withdrew	
implied	consent	(quotation	marks	omitted));	Wolfe	v.	Commonwealth,	793	S.E.2d	811,	813-15	(Va.	
Ct.	App.	2016)	(affirming	the	denial	of	a	motion	to	suppress	blood	test	results	when	the	driver	“did	
not	verbally	or	physically	refuse	the	blood	test”	but	by	statute	was	“deemed	.	.	.	to	have	consented”	
to	testing	and	refusal	would	result	only	in	a	civil	penalty	(quotation	marks	omitted)).	
8	

consequences	of	refusal,	see	29-A	M.R.S.	§	2521(3),	and	to	ascertain	that	Boyd	

was	 refusing	 to	 consent	 with	 full	 knowledge	 of	 the	 possible	 consequences.3		

The	officer	could	then	have	determined	whether	to	seek	a	warrant	or	further	

pursue	an	accurate	breath	test.	

	         [¶15]		Based	on	the	evidence	admitted	here,	however,	which	the	parties	

agree	 did	 not	 show	 that	 Boyd	 refused	 the	 blood	 draw,	 and	 which	 did	 not	

compel	 the	 court	 to	 find	 that	 Boyd	 voluntarily	 and	 explicitly	 consented	 to	 it,	

the	 court	 properly	 analyzed	 whether,	 based	 on	 all	 of	 the	 circumstances,	 the	

State	 proved	 that	 Boyd	 objectively	 manifested	 consent.	 	 Bailey,	 2012	 ME	 55,	

¶	16,	 41	 A.3d	 535.	 	 The	 evidentiary	 record	 does	 not	 compel	 a	 finding	 that	

Boyd	freely	and	voluntarily	consented	to	the	drawing	and	testing	of	his	blood	

through	his	mere	acquiescence	and	cooperation.		See	Cress,	576	A.2d	at	1367;	

see	also	Collier,	2013	ME	44,	¶	6,	66	A.3d	563.	

          The	entry	is:	

                        Order	of	suppression	affirmed.	
	
	         	     	       	       	       	
	
	
	

     3	
      	 Because	 Boyd	 did	 not	 “refuse”	 the	 blood	 test,	 we	 need	 not	 opine	 on	 the	 consequences,	
pursuant	to	Maine’s	statutes	or	emerging	Fourth	Amendment	jurisprudence,	of	a	refusal	to	submit	
to	a	blood	test.		See	Birchfield	v.	North	Dakota,	579	U.S.	---,	136	S.	Ct.	2160,	2185-86	(2016).	
                                                                                       9	

Joshua	 K.	 Saucier,	 Asst.	 Dist.	 Atty.	 (orally),	 York	 County	 District	 Attorney’s	
Office,	Springvale,	for	appellant	State	of	Maine	
	
Amy	 McNally,	 Esq.	 (orally),	 Woodman	 Edmands	 Danylik	 Austin	 Smith	 &	
Jacques,	P.A.,	Biddeford,	for	appellee	Robert	I.	Boyd	Jr.	
	
	
	
York	County	Unified	Criminal	Docket	docket	number	CR-2015-30829	
FOR	CLERK	REFERENCE	ONLY	
