MAINE	SUPREME	JUDICIAL	COURT	                                                Reporter	of	Decisions	
Decision:	 2018	ME	85	
Docket:	   Ken-16-503	
Argued:	   May	12,	2017	
Decided:	  July	3,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	and	HUMPHREY,	JJ.	
Dissent:	  GORMAN,	J.,	with	whom	JABAR,	J.,	joins,	and	HJELM,	J.,	joins	in	part.	
Dissent:	  JABAR,	J.	
Dissent:	  HJELM,	J.	
	
                                 STATE	OF	MAINE	
                                         	
                                        v.	
                                         	
                          LYANNE	LEMEUNIER-FITZGERALD	
	
	
SAUFLEY,	C.J.	

       [¶1]	 	 This	 appeal	 requires	 us	 to	 determine	 whether	 evidence	 obtained	

from	 a	 warrantless	 blood-alcohol	 test,	 taken	 upon	 probable	 cause	 to	 believe	

that	a	driver’s	ability	to	operate	a	motor	vehicle	was	impaired	by	intoxicants,	

falls	 within	 the	 consent	 exception	 to	 the	 warrant	 requirement	 if	 the	 suspect	

agrees	 to	 the	 blood	 draw	 following	 the	 standard	 explanation	 of	 the	 implied	

consent	warnings.		In	this	evolving	area	of	Fourth	Amendment	jurisprudence,	
2	

we	conclude	that	the	operator	consented	to	the	blood	test,	and	we	affirm	the	

denial	of	the	motion	to	suppress.1			

                                        I.		BACKGROUND	

         [¶2]	 	 Lyanne	 LeMeunier-Fitzgerald	 appeals	 from	 a	 judgment	 of	

conviction	 entered	 by	 the	 trial	 court	 (Kennebec	 County,	 Mullen,	 J.)	 upon	 her	

conditional	 guilty	 plea	 to	 charges	 of	 operating	 under	 the	 influence	 (Class	 C),	

29-A	M.R.S.	§	2411(1-A)(B)(2),	(5)(C)	(2017),	and	operating	beyond	a	license	

condition	 or	 restriction	 (Class	 E),	 29-A	M.R.S.	 §	1251(1)(B)	 (2017),	 entered	

after	the	court	(Marden,	J.)	denied	her	motion	to	suppress	the	results	of	a	blood	

test	for	alcohol.		She	challenges	the	court’s	determination	that	she	voluntarily	

consented	to	the	blood	test	after	she	was	warned	by	the	arresting	officer	that	

there	were	potential	consequences	if	she	refused	to	consent.			

	        [¶3]	 	 The	 operative	 facts,	 most	 of	 which	 were	 found	 upon	 the	 parties’	

stipulation	 and	 none	 of	 which	 are	 disputed	 on	 appeal,	 are	 as	 follows.	 	 On	

December	 21,	 2015,	 an	 Augusta	 police	 officer	 suspected	 that	

LeMeunier-Fitzgerald	was	operating	under	the	influence	of	an	intoxicant	after	

observing	her	in	a	supermarket	parking	lot.		Her	vehicle	was	partially	pulled	



     1		Because	we	conclude	that	the	court	properly	denied	LeMeunier-Fitzgerald’s	motion	to	suppress,	

we	do	not	reach	the	State’s	argument	that	suppression	of	the	test	results	was	not	required	because	
the	officer	was	acting	in	“good	faith	reliance	on	existing	law.”			
                                                                                           3	

out	of	a	parking	space,	her	eyes	were	glassy,	and	she	smelled	of	alcohol.		When	

the	 officer	 approached	 and	 questioned	 her,	 she	 grabbed	 a	 bottle	 of	 pills	 and	

poured	them	into	her	mouth.		The	officer	placed	her	in	handcuffs	and	called	for	

a	rescue	team.		When	the	rescue	team	arrived,	the	handcuffs	were	removed	and	

LeMeunier-Fitzgerald	was	taken	to	the	hospital.			

       [¶4]		After	hospital	personnel	had	attended	to	LeMeunier-Fitzgerald	and	

had	placed	her	in	a	room,	the	officer	met	with	her.		The	officer	informed	her	

that	 he	 suspected	 that	 she	 had	 been	 attempting	 to	 operate	 a	 motor	 vehicle	

while	under	the	influence	of	intoxicants,	and	he	read	Maine’s	“implied	consent”	

warnings	 to	 her	 verbatim	 from	 a	 form	 provided	 by	 the	 Secretary	 of	 State’s	

Bureau	of	 Motor	Vehicles.		 See	29-A	M.R.S.	§	2521	 (2017).		Included	was	the	

warning,	 “If	 you	 are	 convicted	 of	 operating	 while	 under	 the	 influence	 of	

intoxicating	 liquor	 or	 drugs,	 your	 failure	 to	 submit	 to	 a	 chemical	 test	 will	 be	

considered	 an	 aggravating	 factor	 at	 sentencing	 which	 in	 addition	 to	 other	

penalties,	will	subject	you	to	a	mandatory	minimum	period	of	incarceration.”		

LeMeunier-Fitzgerald	 agreed	to	submit	to	the	blood	test,	and	a	blood	sample	

was	taken	from	her	without	a	warrant.			

	      [¶5]		LeMeunier-Fitzgerald	was	charged	by	complaint,	and	she	was	later	

indicted,	 for	 operating	 under	 the	 influence	 (Class	 C),	 29-A	 M.R.S.	
4	

§	2411(1-A)(B)(2),	 and	 operating	 beyond	 a	 license	 condition	 or	 restriction	

(Class	 E),	 29-A	 M.R.S.	 §	1251(1)(B).	 	 She	 moved	 to	 suppress	 the	 blood	 test	

results	 as	 having	 been	 procured	 without	 a	 warrant	 and	 without	 voluntary	

consent,	 in	 violation	 of	 the	 Fourth	 Amendment	 to	 the	 United	 States	

Constitution.	 	 The	 court	 held	 a	 hearing	 on	 the	 motion	 to	 suppress	 on	

July	26,	2016.		The	parties	stipulated	that	(1)	the	officer	had	probable	cause	to	

believe	that	LeMeunier-Fitzgerald	was	operating	while	under	the	influence	of	

an	intoxicant,	(2)	her	blood	was	drawn	without	a	search	warrant,	and	(3)	there	

were	no	exigent	circumstances.		The	court	then	heard	brief	testimony	from	the	

officer	who	had	taken	LeMeunier-Fitzgerald	into	custody.		For	purposes	of	the	

motion,	that	testimony	was	not	disputed	by	LeMeunier-Fitzgerald.			

	     [¶6]		The	court	denied	the	motion	to	suppress,	reasoning	that,	unlike	the	

situation	that	the	United	States	Supreme	Court	recently	addressed	in	Birchfield	

v.	North	Dakota,	LeMeunier-Fitzgerald	did	not	submit	to	the	blood	testing	“on	

pain	 of	 committing	 a	 criminal	 offense.”	 	 579	 U.S.	 ---,	 136	 S.	 Ct.	 2160,	 2186	

(2016).		The	court	concluded	that	the	heightened	minimum	penalties,	including	

a	 mandatory	 minimum	 period	 of	 incarceration,	 that	 may	 be	 imposed	 on	 a	

person	who	refuses	to	submit	to	testing	if	convicted	of	OUI	were	not	equivalent	
                                                                                                     5	

to	 an	 independent	 criminal	 offense	 for	 refusal	 as	 described	 in	 Birchfield.		

579	U.S.	at	---,	136	S.	Ct.	at	2169-70,	2186.	

	       [¶7]		LeMeunier-Fitzgerald	entered	a	conditional	guilty	plea,	preserving	

her	 right	 to	 appeal	 from	 the	 ruling	 on	 the	 motion	 to	 suppress,	 and	 the	 court	

(Mullen,	J.)	sentenced	her	to	three	years	in	prison,	with	all	but	forty-five	days	

suspended,2	and	two	years	of	probation	 for	the	OUI	conviction	and	forty-five	

days	 in	 prison,	 to	 run	 concurrently,	 for	the	 conviction	 of	 operating	 beyond	 a	

license	condition	or	restriction.		The	court	also	imposed	fines	and	surcharges	

amounting	to	$1,405.		

        [¶8]		LeMeunier-Fitzgerald	timely	appealed.		See	15	M.R.S.	§	2115	(2017);	

M.R.	App.	P.	2(b)(2)(A)	(Tower	2016).3		She	argues	that	the	blood	test	violated	

the	 Fourth	 Amendment’s	 protection	 against	 unreasonable	 searches	 and	

seizures	because	it	was	taken	without	a	warrant	and	her	consent	to	the	test	was	

rendered	involuntary	by	the	warning	of	an	increased	minimum	sentence	if	she	

refused	to	consent	and	was	then	convicted.			




    2		LeMeunier-Fitzgerald	had	apparently	been	convicted	of	OUI	on	previous	occasions.			


    3		The	appeal	was	commenced	before	the	restyled	Maine	Rules	of	Appellate	Procedure	took	effect.		

See	M.R.	App.	P.	1	(providing	that	the	restyled	rules	are	effective	for	“appeals	in	which	the	notice	of	
appeal	is	filed	on	or	after	September	1,	2017”).	
6	

                                                  II.		DISCUSSION	

          [¶9]	 	 We	 anchor	 our	 analysis	 in	 the	 language	 of	 the	 United	 States	

Constitution.	 	 “The	 right	 of	 the	 people	 to	 be	 secure	 in	 their	 persons,	 houses,	

papers,	 and	 effects,	 against	 unreasonable	 searches	 and	 seizures,	 shall	 not	 be	

violated,	and	no	Warrants	shall	issue,	but	upon	probable	cause,	supported	by	

Oath	or	affirmation,	and	particularly	describing	the	place	to	be	searched,	and	

the	persons	or	things	to	be	seized.”		U.S.	Const.	amend.	IV.		There	is	no	question	

that	strictures	of	the	Fourth	Amendment	apply	to	searches	in	the	form	of	blood	

tests.		See	Schmerber	v.	California,	384	U.S.	757,	767-72	(1966).		The	question	is	

how	those	strictures	apply	here.	

          [¶10]		In	recent	years,	courts	across	the	country	have	been	challenged	to	

find	 an	 appropriate	 balance	 between	 a	 defendant’s	 right	 to	 be	 free	 from	

“unreasonable”	searches	of	their	blood	for	its	alcohol	content	and	the	State’s	

interest	in	addressing	the	public	safety	crisis	resulting	from	impaired	drivers	

causing	death	and	destruction	on	America’s	roads.4		U.S.	Const.	amend.	IV.		We	

endeavor	 here	 to	 assure	 that	 the	 constitution’s	 prohibition	 against	

unreasonable	 searches	 and	 seizures	 is	 given	 full	 force,	 with	 the	 required	



     4	 	 See,	 e.g.,	 Missouri	 v.	 McNeely,	 569	 U.S.	 141,	 159-63	 (2013);	 Mich.	 Dep’t	 of	 State	 Police	 v.	 Sitz,	

496	U.S.	444,	451-55	(1990);	United	States	v.	Brock,	632	F.3d	999,	1002-03	(7th	Cir.	2011);	see	also	
State	v.	Boyd,	2017	ME	36,	¶¶	8-15,	156	A.3d	748;	State	v.	Arndt,	2016	ME	31,	¶¶	5-11,	133	A.3d	587.	
                                                                                                     7	

determination	 of	 reasonableness	 informed	 by	 a	 full	 consideration	 of	 urgent	

public	 safety	 considerations.5	 	 In	 this	 opinion,	 we	 (A)	summarize	 the	 Fourth	

Amendment	 jurisprudence	 regarding	 searches	 undertaken	 for	 purposes	 of	

blood-alcohol	 testing;	 (B)	 review	 the	 statutory	 basis	 for	 providing	 warnings	

about	the	legal	consequences	of	a	refusal	to	submit	to	testing;	and	(C)	consider	

the	 legal	 question	 of	 whether	 a	 driver	 who	 consents	 to	 a	 blood	 draw	 after	

receiving	 such	 warnings	 has	 voluntarily	 consented,	 recognizing,	 as	 the	 First	

Circuit	 has	 eloquently	 explained,	 that	 a	 defendant’s	 consent	 that	 has	 been	

“pried	loose	by	.	.	.	a	claim	of	authority	is	merely	acquiescence.”		United	States	v.	

Vazquez,	724	F.3d	15,	23	(1st	Cir.	2013).	

A.	    Alcohol	Testing	and	the	Fourth	Amendment	

       [¶11]		We	begin	with	the	bedrock	understanding	that	the	withdrawal	of	

a	blood	sample	from	the	veins	or	arteries	of	a	human	being	for	blood-alcohol	

testing	is	a	“search”	falling	within	the	protection	of	the	Fourth	Amendment.		See	

Birchfield,	579	U.S.	at	---,	136	S.	Ct.	at	2173;	Schmerber,	384	U.S.	at	767;	State	v.	

Boyd,	 2017	 ME	 36,	 ¶	8,	 156	 A.3d	 748;	 State	 v.	 Arndt,	 2016	 ME	 31,	 ¶	 8,	




   5		The	National	Highway	Traffic	Safety	Administration	reports	that,	in	2016,	10,497	people	died	in	

traffic	accidents	involving	at	least	one	driver	with	a	blood-alcohol	content	of	.08	grams	per	deciliter	
or	more.		Nat’l	Highway	Traffic	Safety	Admin.,	Traffic	Safety	Facts:	Alcohol	Impaired	Driving,	DOT	HS	
812	450	at	2	(Oct.	2017).		That	is	the	highest	reported	number	of	fatalities	since	2009.		Id.	
8	

133	A.3d	587.		The	Fourth	Amendment	prohibits	unreasonable	searches,	and	

the	 procurement	 of	 a	 legitimate	 search	 warrant,	 with	 all	 that	 it	 entails,	 is	

designed	 to	 ensure	 the	 reasonableness	 of	 a	 search.	 	 See	 Skinner	 v.	 Ry.	 Labor	

Executives’	Ass’n,	489	U.S.	602,	619,	622	(1989).	

       [¶12]		As	is	also	clear,	however,	there	are	“a	few	specifically	established	

and	 well-delineated	 exceptions”	 to	 the	 warrant	 requirement.	 	 Katz	 v.	 United	

States,	 389	 U.S.	 347,	 357	 (1967);	 see	 also	 Missouri	 v.	 McNeely,	 569	 U.S.	 141,	

148-49	 (2013);	 Georgia	 v.	 Randolph,	 547	 U.S.	 103,	 109	 (2006).	 	 “When	 faced	

with	 special	 law	 enforcement	 needs,	 diminished	 expectations	 of	 privacy,	

minimal	 intrusions,	 or	 the	 like,	 the	 [Supreme]	 Court	 has	 found	 that	 certain	

general,	 or	 individual,	 circumstances	 may	 render	 a	 warrantless	 search	 or	

seizure	 reasonable.”	 	 Illinois	 v.	 McArthur,	 531	 U.S.	 326,	 330	 (2001);	 see,	 e.g.,	

Pennsylvania	v.	Labron,	518	U.S.	938,	940	(1996)	(per	curiam)	(holding	that	a	

warrantless	search	of	an	automobile	is	reasonable	if	the	automobile	is	readily	

mobile	 and	 the	 search	 is	 supported	 by	 probable	 cause);	 Mich.	 Dep’t	 of	 State	

Police	v.	Sitz,	496	U.S.	444,	 453-55	 (1990)	(holding	that	the	 use	of	a	sobriety	

checkpoint	was	reasonable	when	it	was	instituted	based	on	objective	indicia	of	

effectiveness).	
                                                                                                              9	

        [¶13]		In	addressing	the	reasonableness	of	searches	aimed	at	detecting	

impaired	 driving,	 the	 Supreme	 Court	 has	 held	 that	 a	 breath	 test	 measuring	

blood-alcohol	content	is	a	search	that	does	not	require	a	warrant,	consent,	or	

other	exceptions,	as	long	as	there	is	probable	cause	to	believe	that	the	driver	

was	operating,	or	attempting	to	operate,	a	vehicle	while	under	the	influence.		

See	Birchfield,	579	U.S.	at	---,	136	S.	Ct.	at	2184-85.		The	Court	has	reasoned	that	

a	breath	test	is	less	intrusive	than	a	blood	test,	and	when	balanced	against	the	

law	 enforcement	 needs	 of	 keeping	 impaired	 drivers	 off	 the	 roads,	 it	 is	

reasonable,	even	without	a	warrant,	for	a	law	enforcement	officer	to	require	a	

driver	to	submit	to	a	breath	test	if	probable	cause	exists.		See	id.			

        [¶14]		Because	it	is	more	intrusive,	however,	a	warrantless	blood	draw	

cannot	be	justified	as	a	search	incident	to	an	arrest	for	OUI.		Id.	at	2185.		Thus,	

some	other	exception	to	the	warrant	requirement	is	necessary	to	establish	the	

reasonableness	of	the	blood	draw	to	test	for	alcohol.	

        [¶15]	 	 The	 parties	 have	 agreed	 that	 the	 consent	 exception	 is	 the	 only	

exception	at	issue	on	appeal.6		The	question	before	us	concerns	whether,	given	


   6		The	State	did	not	argue	that	exigent	circumstances	justified	the	blood	draw.		As	the	United	States	

Supreme	Court	has	held,	the	natural	dissipation	of	alcohol	in	a	suspect’s	blood	does	not	categorically	
support	a	finding	of	exigent	circumstances,	and	more	than	the	mere	fact	that	alcohol	dissipates	over	
time	is	required	to	establish	such	an	exigency.		McNeely,	569	U.S.	141,	156	(2013);	Arndt,	2016	ME	31,	
¶	 10,	 133	 A.3d	 587.	 	 In	 the	 matter	 before	 us,	 exigent	 circumstances	 may	 have	 arisen	 due	 to	 the	
possible	 unavailability	 of	 a	 breathalyzer	 at	 the	 hospital,	 LeMeunier-Fitzgerald’s	 observed	
consumption	of	a	bottle’s	worth	of	pills	when	the	officer	approached	her	in	the	parking	lot,	and	the	
10	

the	need	to	prevent	drivers	from	operating	vehicles	while	under	the	influence	

of	 intoxicants,	 it	 is	 reasonable	 to	 draw	 a	 driver’s	 blood	 without	 procuring	 a	

warrant	when	the	driver	has	consented	to	a	blood	test	after	being	read	Maine’s	

statutory	warnings	about	the	consequences	of	refusing	to	submit	to	testing.	

B.	     The	 Duty	 to	 Submit	 to	 Testing	 and	 Warnings	 of	 the	 Consequences	 of	
        Refusing	to	Submit	

        [¶16]		Due	to	concerns	about	deaths	and	injuries	resulting	from	drunk	

driving,	 States	 have	 adopted	 laws	 designed	 to	 ensure	 the	 testing	 of	

blood-alcohol	 levels	 through	 breath	 or	 blood	 tests,	 predominantly	 through	

statutes	 providing	 that	 drivers	 “imply”	 their	 consent	 to	 testing	 by	 operating	

vehicles	on	the	roads.		See	Birchfield,	579	U.S.	at	---,	136	S.	Ct.	at	2166,	2168-69.		

The	 Maine	 Legislature	 enacted	 its	 “implied	 consent”	 law	 to	 take	 effect	 on	

October	1,	1969.		P.L.	1969,	ch.	439,	§	1	(codified	at	29	M.R.S.A.	§	1312	(Supp.	

1970)).	 	 That	 statute	 provided	 that	 any	 person	 operating	 or	 attempting	 to	

operate	a	motor	vehicle	in	 Maine	who	had	been	arrested	for	operating	while	




potential	dissipation	of	the	evidence	through	treatment	at	the	hospital.		See	Birchfield	v.	North	Dakota,	
579	U.S.	at	---,	136	S.	Ct.	2160,	2184	(2016)	(stating	that	“[o]ne	advantage	of	blood	tests	is	their	ability	
to	detect	not	just	alcohol	but	also	other	substances	that	can	impair	a	driver’s	ability	to	operate	a	car	
safely,”	and	indicating	that	police	may	rely	on	the	exigent	circumstances	exception	to	the	warrant	
requirement	if	there	is	insufficient	time	to	seek	a	warrant	in	such	circumstances).		Nonetheless,	the	
State	did	not	assert	exigency,	it	did	not	present	evidence	upon	which	the	court	could	have	reached	
findings	and	analyzed	that	exception,	and	we	do	not	address	the	exception	further.	
                                                                                                 11	

intoxicated	would	“be	deemed	to	have	given	consent	to	a	chemical	test	of	the	

blood	alcohol	level	of	his	blood	or	urine.”		Id.	

       [¶17]		More	than	a	decade	later,	in	response	to	our	decision	interpreting	

the	 “implied	 consent”	 statute,	 State	 v.	 Plante,	 417	 A.2d	 991	 (Me.	 1980),7	 the	

Legislature	amended	the	statute,	eliminating	the	presumption	of	consent	upon	

operation	of	a	vehicle	and	establishing	a	duty	to	submit	to	testing.		See	P.L.	1981,	

ch.	679,	§	12	(effective	April	15,	1982)	(codified	at	29	M.R.S.A.	§	1312	(Supp.	

1982)).		The	present	statute,	29-A	M.R.S.	§	2521(1)	(2017),	which	was	in	effect	

when	LeMeunier-Fitzgerald’s	blood	was	drawn,	provides,	“If	there	is	probable	

cause	 to	 believe	 a	 person	 has	 operated	 a	 motor	 vehicle	 while	 under	 the	

influence	 of	 intoxicants,	 that	 person	 shall	 submit	 to	 and	 complete	 a	 test	 to	

determine	an	 alcohol	level	 and	the	presence	of	 a	drug	or	drug	 metabolite	by	

analysis	of	blood,	breath	or	urine.”		(Emphasis	added.)		The	statute	provides	for	

the	 administration	 of	 a	 breath	 test	 “unless,	 in	 th[e]	 officer’s	 determination,	 a	

breath	 test	 is	 unreasonable,”	 in	 which	 case	 “another	 chemical	 test	 must	 be	

administered	in	place	of	a	breath	test.”		Id.	§	2521(2).	




   7		There,	we	interpreted	the	statute	to	provide	that	a	person	had	a	duty	to	submit	to	testing	and	

had	“the	power—though	not	the	right—to	refuse	to	perform	that	duty.”		State	v.	Plante,	417	A.2d	991,	
993	(Me.	1980).	
12	

       [¶18]	 	 Thus,	 although	 Maine’s	 chemical	 testing	 statute	 bears	 the	 title	

“Implied	 consent	 to	 chemical	 tests,”	 the	 statute	 “no	 longer	 provides	 that	 a	

person	 will	 be	 ‘deemed’	 to	 have	 consented	 to	 testing	 by	 operating	 a	 motor	

vehicle	on	Maine’s	roads.”		Boyd,	2017	ME	36,	¶	13,	156	A.3d	748.		The	statute	

was	amended	to	impose	on	a	driver	a	duty	to	submit	to	testing	when	there	is	

probable	cause	to	believe	that	the	driver	has	operated	 a	motor	vehicle	while	

under	 the	 influence.	 	 Id.	 	 Accordingly,	 we	 refer	 to	 the	 statute	 as	 the	

“duty-to-submit”	 statute	 and	 clarify	 that	 LeMeunier-Fitzgerald	 did	 not,	 by	

operation	of	her	vehicle,	“imply”	that	she	consented	to	chemical	testing.			

       [¶19]		The	duty	to	submit	does	not,	however,	create	a	statutory	mandate	

to	 submit	 to	 testing.	 	 Rather,	 it	 provides	 specific	 consequences	 for	 a	 driver’s	

decision	 not	 to	 comply	 with	 that	 duty.	 	 See	 29-A	 M.R.S.	 §	 2521(3),	 (5),	 (6)	

(2017).		In	order	for	the	consequences	of	refusal	to	apply,	the	driver	must	have	

been	provided	with	a	direct	and	clear	explanation	of	those	consequences.		See	

id.	§	2521(3).	

       [¶20]	 	 The	 specific	 question	 before	 us	 concerns	 the	 voluntariness	 of	

LeMeunier-Fitzgerald’s	 verbal	 consent	 given	 after	 receiving	 warnings	 of	 the	

consequences	of	refusing,	despite	the	existence	of	probable	cause,	to	submit	to	

testing.		With	respect	to	such	warnings,	the	statute	provides:	
                                                                                        13	

        Neither	a	refusal	to	submit	to	a	test	nor	a	failure	to	complete	a	test	
        may	be	used	for	any	of	the	purposes	specified	in	paragraph	A,	B	or	
        C	 unless	 the	 person	 has	 first	 been	 told	 that	 the	 refusal	 or	 failure	
        will:	
        	
               A.	Result	in	suspension	of	that	person’s	driver’s	license	for	a	
               period	up	to	6	years;	
               	
               B.	Be	admissible	in	evidence	at	a	trial	for	operating	under	the	
               influence	of	intoxicants;	and	
               	
               C.	Be	 considered	 an	 aggravating	 factor	 at	 sentencing	 if	 the	
               person	 is	 convicted	 of	 operating	 under	 the	 influence	 of	
               intoxicants	 that,	 in	 addition	 to	 other	 penalties,	 will	 subject	
               the	person	to	a	mandatory	minimum	period	of	incarceration.		
        	
Id.	 §	 2521(3).	 	 Thus,	 if	 a	 driver	 has	 first	 been	 warned	 of	 the	 statutory	

consequences,	the	driver’s	refusal	to	comply	with	the	statutory	duty	to	submit	

can	 result	 in	 (A)	 up	 to	 six	 years’	 suspension	 of	 the	 driver’s	 license;	 (B)	the	

admission	at	trial	of	the	driver’s	refusal	to	submit	to	testing;	and	(C)	increased	

minimum	 penalties	 if	 the	 driver	 is	 convicted	 of	 OUI,	 including	 a	 mandatory	

minimum	period	of	incarceration.		See	id.	§	2521(3),	(5),	(6);	see	also	29-A	M.R.S.	

§	2411(5)(A)(1),	(A)(3)(b),	(B)(1),	(B)(2),	(C)(1),	(C)(2),	(D)(1),	(D)(2)	(2017).		

We	 now	 consider	 whether	 this	 statutory	 scheme	 imposes	 unconstitutionally	

coercive	consequences	for	refusing	to	submit	to	testing,	such	that	the	warning	

of	 those	 consequences	 could	 have	 undermined	 the	 voluntariness	 of	
14	

LeMeunier-Fitzgerald’s	 consent.	 	 See	 Birchfield,	 579	 U.S.	 at	 ---,	 136	 U.S.	 at	

2184-85.	

C.	    Voluntariness	of	Consent	after	Statutory	Warnings	

       [¶21]		Even	in	the	absence	of	a	warrant,	a	search	is	reasonable—and	the	

evidence	obtained	is	admissible—if	a	person	voluntarily	consents	to	the	search.		

See	 Randolph,	 547	 U.S.	 at	 109;	 Schneckloth	 v.	 Bustamonte,	 412	 U.S.	 218,	 219	

(1973);	 State	 v.	 Cress,	 576	 A.2d	 1366,	 1367	 (Me.	 1990).	 	 When	 a	 defendant	

moves	to	suppress	evidence	obtained	without	a	warrant	and	the	State	asserts	

that	no	warrant	was	required	because	the	suspect	consented	to	the	search,	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.”	 	 State	 v.	

Bailey,	2012	ME	55,	¶	16,	41	A.3d	535	(quotation	marks	omitted).	

       [¶22]		The	question	of	voluntariness	is	“‘determined	from	the	totality	of	

all	 the	 circumstances.’”	 	 Birchfield,	 579	 U.S.	 ---,	 136	 S.	 Ct.	 at	 2186	 (quoting	

Schneckloth,	412	U.S.	at	227).		A	search	is	unreasonable	if	a	person’s	consent	to	

the	 search	 was	 “coerced,	 by	 explicit	 or	 implicit	 means,	 by	 implied	 threat	 or	

covert	 force”	 or	 duress,	 or	 was	 induced	 by	 “deceit,	 trickery,	 or	

misrepresentation.”		Schneckloth,	412	U.S.	at	228;	State	v.	Barlow,	320	A.2d	895,	

900	(Me.	1974);	see	State	v.	Koucoules,	343	A.2d	860,	873	(Me.	1974).	
                                                                                                            15	

        [¶23]		The	circumstances	under	which	 LeMeunier-Fitzgerald	agreed	to	

submit	to	a	blood	test	are	undisputed;	the	parties’	disagreement	centers	on	the	

effect	of	the	warnings	on	the	voluntariness	of	her	consent.8		In	the	absence	of	

any	 factual	 dispute,	 “we	 review	 de	 novo	 the	 motion	 court’s	 ruling	 on	

suppression.”		State	v.	Tozier,	2006	ME	105,	¶	6,	905	A.2d	836.	

        [¶24]		To	address	the	legal	issue	presented,	we	must	determine	whether	

the	consent	exception	to	the	warrant	requirement	applies	to	a	defendant	who	

gave	her	consent	upon	receiving	the	specific	statutory	warnings	at	issue	here.9		


   8		On	an	appeal	from	a	denial	of	a	motion	to	suppress,	we	review	any	disputes	about	the	court’s	

findings	 for	 clear	 error	 and	 the	 ultimate	 question	 of	 whether	 the	 facts	 establish	 an	 individual’s	
consent	de	novo.		See	State	v.	Nadeau,	2010	ME	71,	¶	18,	1	A.3d	445.		Here,	the	facts	found	by	the	
court	are	not	in	dispute:	the	“officer	had	probable	cause	to	believe	that	[LeMeunier-Fitzgerald]	was	
operating	a	motor	vehicle	while	under	the	influence	of	an	intoxicant”;	in	the	hospital,	while	in	police	
custody,	she	“agreed	to	submit	to	a	blood	test	after	being	read	the	Maine	implied	consent	law”;	“a	
blood	sample	was	taken	without	a	warrant[;]	and	there	were	no	exigent	circumstances.”		Thus,	we	
are	in	a	position	to	review	a	straightforward	legal	issue	based	on	an	officer	acting	in	accordance	with	
the	statute	governing	the	warnings	and	are	not	required	to	remand	the	matter	for	the	court	to	reach	
findings	about	disputed	key	facts.		See	State	v.	Clay,	793	S.E.2d	636,	639	(Ga.	Ct.	App.	2016)	(stating	
that	a	defendant’s	affirmative	response	to	statutory	warnings	“may	itself	be	sufficient	evidence	of	
actual	 and	 voluntary	 consent,	 absent	 reason	 to	 believe	 the	 response	 was	 involuntary”	 (quotation	
marks	omitted));	cf.	United	States	v.	Hutchinson,	No.	2:16-CR-168-DBH,	2018	U.S.	Dist.	LEXIS	7180,	at	
*16-19	(D.	Me.	Jan.	17,	2018)	(reaching	findings	after	three	witnesses	testified	differently	about	what	
happened	 when	 the	 defendant’s	 blood	 was	 drawn);	 Espinoza	 v.	 Shiomoto,	 215	 Cal.	 Rptr.	 3d	 807,	
823-34	(Cal.	Ct.	App.	2017)	(reviewing	whether	a	driver	voluntarily	consented	to	testing,	or	instead	
refused	testing,	when	she	conditioned	her	consent	on	the	police	obtaining	a	warrant	and	no	warrant	
was	obtained);	Boyd,	2017	ME	36,	156	A.3d	748	(reviewing	the	voluntariness	of	consent	when	no	
warnings	 were	 read);	 State	 v.	 Blackman,	 898	 N.W.2d	 774,	 778,	 781-89	 (Wis.	 2017)	 (reviewing	
whether	 a	 driver	 voluntarily	 consented	 when	 the	 form	 that	 the	 officer	 read	 misstated	 the	 legal	
consequences	of	refusal	for	the	driver	at	issue).	
   9		In	contrast	to	the	facts	presented	in	a	case	recently	decided	by	United	States	District	Court	Judge	

D.	Brock	 Hornby,	 the	 officer	 here	 did	 not	 misrepresent	the	 law	 to	the	 defendant.	 	 See	 Hutchinson,	
2018	U.S.	Dist.	LEXIS	7180,	at	*20-21.		LeMeunier-Fitzgerald	was	informed	that	her	refusal	would	
have	consequences,	but	she	was	not	told	that	she	had	no	choice	in	the	matter.		Id.	at	*5.	
16	

If	the	imposition	of	a	minimum	mandatory	sentence	upon	a	driver’s	conviction	

of	OUI	after	refusing	testing	is	unconstitutionally	coercive,	the	warning	of	that	

possible	consequence	throws	into	question	the	voluntariness	of	consent.		See	

Birchfield,	 579	 U.S.	 ---,	 136	 S.	 Ct.	 at	 2186	 (remanding	 for	 the	 state	 court	 to	

determine	whether	a	suspect’s	consent	to	a	blood	test	was	voluntary	when	he	

consented	only	after	police	erroneously	told	him	that	the	law	required	him	to	

submit	or	face	prosecution	for	the	crime	of	refusal);	see	also	Barlow,	320	A.2d	

at	900.	

       [¶25]	 	 Unlike	 the	 North	 Dakota	 statute	 reviewed	 in	 Birchfield,	 Maine’s	

statute	 includes	 no	 threat	 of	 a	 separate,	 independent	 criminal	 charge	 for	

refusing	to	submit	to	testing.		Cf.	Birchfield,	579	U.S.	at	---,	136	S.	Ct.	at	2169-70.		

Nor	 does	 the	 refusal	 to	 submit	 expose	 the	 driver	 to	 any	 additional	 threat	 of	

immediate	 incarceration.	 	 See	 29-A	 M.R.S.	 §	 2521(3).	 	 Instead,	 the	 statutory	

warnings	make	the	driver	aware	that	a	choice	must	be	made,	and	they	inform	

the	driver	of	the	potential	consequences	of	refusing	to	comply	with	the	duty	to	

submit	to	testing.		See	id.;	see	also	Commonwealth	v.	Myers,	164	A.3d	1162,	1164	

(Pa.	 2017)	 (stating	 that	 a	 statutory	 warning	 of	 the	 possible	 consequences	 of	

refusing	blood	testing	informed	the	driver	of	the	right	to	refuse);	cf.	Olevik	v.	

State,	806	S.E.2d	505,	521-22	(Ga.	2017)	(same,	in	a	breath	testing	case).	
                                                                                                  17	

       [¶26]		The	possible	consequences	conveyed	in	those	warnings	relate	to	

licensing,	 the	 admissibility	 of	 the	 refusal	 in	 evidence	 at	 trial,	 and	 increased	

minimum	 penalties	 for	 purposes	 of	 a	 court’s	 sentencing	 if	 the	 driver	 is	

convicted	 of	 OUI.	 	 See	 29-A	M.R.S.	 §	 2521(3).	 	 As	 the	 Supreme	 Court	 has	

previously	determined,	neither	the	threat	of	evidentiary	use	of	the	refusal	nor	

the	threat	of	license	suspension	renders	the	consent	involuntary.		See	Birchfield,	

579	U.S.	at	---,	136	S.	Ct.	at	2185	(referring	“approvingly	to	the	general	concept	

of	 implied-consent	 laws	 that	 impose	 civil	 penalties	 and	 evidentiary	

consequences	on	motorists	who	refuse	to	comply”);	McNeely,	569	U.S.	at	161;	

see	also	South	Dakota	v.	Neville,	459	U.S.	553,	559-60,	564-66	(1983)	(holding	

that	a	license	suspension	for	refusing	a	 blood-alcohol	test	is	“unquestionably	

legitimate”	and	that	the	admission	of	a	suspect’s	refusal	to	take	a	blood-alcohol	

test	violates	neither	the	privilege	 against	self-incrimination	nor	the	suspect’s	

right	to	due	process).10		The	question	then	is	whether	the	additional	threat	of	a	

mandatory	minimum	sentence	is	unconstitutionally	coercive	and	renders	the	

consent	involuntary.	




  10		See	also	Mackey	v.	Montrym,	443	U.S.	1,	19	(1979)	(“[T]he	compelling	interest	in	highway	safety	

justifies	the	Commonwealth	in	making	a	summary	suspension	effective	pending	the	outcome	of	the	
prompt	postsuspension	hearing	available.”).	
18	

      [¶27]	 	 The	 Court’s	 statement	 in	 Birchfield	 that	 “motorists	 cannot	 be	

deemed	to	have	consented	to	submit	to	a	blood	test	on	pain	of	committing	a	

criminal	 offense”	 specifically	 addressed	 true	 implied	 consent	 statutes	 that	

deem	a	motorist	to	have	consented	to	chemical	testing	in	advance	and	provide	

that	the	failure	to	consent	constitutes	a	crime	in	itself.		Birchfield,	579	U.S.	---,	

136	S.	Ct.	at	2186.		Whether	a	statute	deems	a	driver	to	have	consented	or,	as	in	

Maine,	imposes	a	duty	to	submit	to	testing,	the	coercive	effect	is	the	same	if	the	

statute	 punishes	 the	 refusal	 to	 submit	 to	 testing	 with	 a	 criminal	 offense.		

Accordingly,	if	 Maine’s	statutes	imposed	a	duty	to	submit	to	 a	blood	test	“on	

pain	of	committing	a	criminal	offense,”	an	officer’s	warning	that	it	is	a	crime	to	

refuse	 would	 be	 unconstitutionally	 coercive	 and	 could,	 in	 the	 totality	 of	 the	

circumstances,	undermine	the	voluntariness	of	the	driver’s	consent.		See	id.	

      [¶28]	 	 Maine’s	 statutes	 do	 not,	 however,	 have	 this	 effect.	 	 In	 Maine,	 a	

driver’s	refusal	to	comply	with	the	statutory	duty	to	submit	to	a	blood	test	upon	

probable	cause	will	result	in	an	enhanced	penalty,	one	that	is	well	within	the	

statutory	 maximum	 for	 any	 person	 charged	 with	 OUI,	 only	 if	 the	 driver	 is	

ultimately	convicted	of	OUI	after	that	refusal.		See	29-A	M.R.S.	§§	2411(5)(A)(1),	

(A)(3)(b),	(B)(1),	(B)(2),	(C)(1),	(C)(2),	(D)(1),	(D)(2),	2521(3).		To	illustrate,	if	

the	defendant	who	submits	to	testing	has	had	no	prior	OUI	convictions	within	
                                                                                         19	

the	previous	ten	years	and	no	other	penalty-enhancing	facts	are	present,	an	OUI	

offense	is	a	Class	D	crime,	which	is	punishable	by	imprisonment	for	up	to	364	

days	and	a	fine	of	$500	to	$2,000,	and	there	is	no	mandatory	minimum	period	

of	 incarceration.	 	 17-A	M.R.S.	 §§	1252(2)(D),	 1253(2-A)(D),	 1301(1-A)(D)	

(2017);	 29-A	 M.R.S.	 §	2411(5)(A)	 (2017).	 	 If	 that	 same	 defendant	 is	 instead	

convicted	 of	 OUI	 after	 “fail[ing]	 to	 submit	 to	 a	 test	 at	 the	 request	 of	 a	 law	

enforcement	 officer,”	 the	 upper	 limit	 of	 potential	 imprisonment	 provided	 by	

statute	 remains	 exactly	 the	 same—up	 to	 364	 days—but	 the	 period	 of	

imprisonment	 must	 be	 at	 least	 “96	 hours.”	 	 29-A	 M.R.S.	 §	2411(5)(A)(3)(b).		

Similarly,	the	maximum	possible	fine	is	unaffected,	though	a	person	who	has	

“failed	 to	 submit	 to	 a	 test”	 is	 subject	 to	 a	 fine	 of	 at	 least	 $600.	 	 Id.	

§	2411(5)(A)(1).	

       [¶29]		Under	 no	circumstances,	however,	does	the	statute	increase	the	

level	 of	 the	 offense	 or	 otherwise	 increase	 the	 range	 beyond	 the	 maximum	

period	 of	 imprisonment	 or	 the	 maximum	 fine	 that	 may	 be	 imposed	 for	 the	

applicable	 class	 of	 the	 offense.	 	 See	 29-A	 M.R.S.	 §	 2521(3)(C);	 see	 also	

17-A	M.R.S.	 §	1252(2)	 (establishing	 the	 maximum	 period	 of	 incarceration	 for	

each	 class	 of	 crime);	 17-A	 M.R.S.	 §	1301(1-A)	 (2017)	 (establishing	 the	

maximum	fine	that	may	be	imposed	for	each	class	of	crime).		Furthermore,	in	
20	

an	individual	case,	the	refusal	to	submit	might	not,	practically	speaking,	result	

in	any	demonstrable	increase	in	punishment	whatsoever	because	a	court	may	

impose	a	sentence	at	or	above	the	statutory	minimum	for	any	conviction	of	the	

charged	OUI	offense.	

       [¶30]		Because	the	mandatory	minimum	sentence	applies	only	upon	an	

OUI	conviction	and	the	statute	does	not	criminalize	the	mere	act	of	refusing	to	

submit	 to	 a	 blood	test,	 and	 because	 it	 does	 not	 increase	 a	 driver’s	 maximum	

exposure	 to	 a	 fine	 or	 sentence	 of	 imprisonment,	 the	 statute’s	 setting	 of	 a	

mandatory	minimum	sentence	if	a	driver	is	convicted	of	OUI	after	refusing	to	

submit	to	a	blood	test	despite	probable	cause	is	not	a	“criminal	penalt[y]	on	the	

refusal	to	submit	to	such	a	test”	within	the	meaning	of	Birchfield.		579	U.S.	---,	

136	 S.	 Ct.	 at	 2185.	 	 Although	 there	 is	 a	 “limit	 to	 the	 consequences	 to	 which	

motorists	may	be	deemed	to	have	consented	by	virtue	of	a	decision	to	drive	on	

public	roads,”	see	id.,	that	limit	is	not	exceeded	where	the	consequence	is	only	

the	risk	of	an	increased	minimum	penalty	if	a	driver,	having	received	warnings	

of	 the	 consequences	 of	 a	 refusal,	 declines	 to	 submit	 to	 blood	 testing	 and	 is	

ultimately	convicted	of	OUI,	see	29-A	M.R.S.	§	2521(1),	(3);	see	also	29-A	M.R.S.	

§	2411(5).	
                                                                                          21	

       [¶31]		In	sum,	when	probable	cause	exists,	a	warrantless	blood	test	is	not	

unreasonable	when	a	driver	has	consented	to	testing	after	being	warned	that	

the	lower	limit	of	a	court’s	sentencing	range	will	increase	if	the	driver	refuses	

to	submit	to	testing	and	is	ultimately	convicted	of	OUI.		Cf.	Birchfield,	579	U.S.	

at	---,	136	S.	Ct.	at	2185-86.		The	warnings	given	based	on	the	statute	are	legally	

sound	and	not	misleading.		See	Barlow,	320	A.2d	at	900;	cf.	Birchfield,	579	U.S.	

at	---,	136	S.	Ct.	at	2185-86.		Put	another	way,	a	consent	given	in	response	to	the	

Maine	 warnings	 does	 not	 represent	 mere	 “acquiescence.”	 	 Vazquez,	 724	 F.3d	

at	23.	

       [¶32]	 	 Here,	 LeMeunier-Fitzgerald	 was	 accurately	 warned	 by	 the	

arresting	officer	in	the	hospital	that	she	had	a	duty	to	submit	to	chemical	tests	

and	that	she	would	be	lawfully	subject	to	a	mandatory	minimum	at	sentencing	

if	 convicted	 of	 OUI	 after	 refusing	 to	 submit.	 	 The	 warnings	 informed	

LeMeunier-Fitzgerald	of	the	other	statutory	consequences	that	would	arise	if	

she	 refused	 to	 submit	 to	 the	 test	 despite	 her	 duty	 to	 do	 so.	 	 See	 Birchfield,	

579	U.S.	 ---,	 136	 S.	 Ct.	 at	 2185.	 	 The	 warnings	 did	 not	 constitute	 any	 form	 of	

deceit,	misrepresentation,	or	trickery.		See	Barlow,	320	A.2d	at	900.		Her	refusal	

did	not	give	rise	to	a	separate	criminal	charge.		Cf.	Birchfield,	579	U.S.	---,	136	

S.	Ct.	at	2186.		After	receiving	the	information,	LeMeunier-Fitzgerald	expressly	
22	

agreed	to	undergo	the	blood	test.		The	court	did	not	err	in	concluding,	in	the	

undisputed	totality	of	the	circumstances,	that	LeMeunier-Fitzgerald’s	consent	

was	 voluntary	 and	 not	 induced	 by	 unconstitutional	 coercion	 or	

misrepresentation,	 and	 therefore	 the	 court	 properly	 denied	 her	 motion	 to	

suppress.		See	Schneckloth,	412	U.S.	at	228;	Barlow,	320	A.2d	at	900;	see	also	

Tozier,	2006	ME	105,	¶	6,	905	A.2d	836.	

      The	entry	is:	

                   Judgment	affirmed.	

                             	     	      	      	     	

GORMAN,	J.,	with	whom	JABAR,	J.,	joins	and	HJELM,	J.,	joins	in	part,	dissenting.	

	     [¶33]	 	 Today,	 the	 Court	 has	 concluded	 that,	 despite	 the	 explicit	 and	

implicit	 coercive	 threats	 found	 in	 Maine’s	 duty-to-submit	 statute,	 Lyanne	

LeMeunier-Fitzgerald’s	 “consent”	 to	 having	 blood	 drawn	 was	 voluntary.	 	 I	

respectfully	dissent.	

	     [¶34]		Consent,	like	all	exceptions	to	the	requirement	of	a	warrant,	must	

be	narrowly	construed.		State	v.	Sargent,	2009	ME	125,	¶	10,	984	A.2d	831.		We	

have	long	held	that	consent	is	effective	in	a	Fourth	Amendment	analysis	only	

when	it	is	“freely	and	voluntarily	given”	without	either	“implied	threat	or	covert	

force.”		State	v.	McLain,	367	A.2d	213,	216-17	(Me.	1976).		Consent	induced	by	
                                                                                                      23	

“deceit,	trickery	or	misrepresentation”	or	“physical	violence	or	threats”	cannot	

be	 said	 to	 have	 been	 given	 voluntarily.	 	 State	 v.	 Barlow,	 320	 A.2d	 895,	 900	

(Me.	1974).	 	 I	 believe	 that	 the	 Court	 errs	 in	 determining	 that	

LeMeunier-Fitzgerald’s	 consent	 to	 having	 her	 blood	 drawn	 was	 “freely	 and	

voluntarily	 given,”	 as	 the	 Fourth	 Amendment	 demands.	 	 McLain,	 367	 A.2d	 at	

216-17.	

        [¶35]	 	 In	 Birchfield	 v.	 North	 Dakota,	 the	 United	 States	 Supreme	 Court	

considered	consent	within	the	intersection	of	state	“implied-consent	laws”	and	

the	Fourth	Amendment’s	prohibition	on	unreasonable	searches	and	seizures.		

579	U.S.	---,	136	S.	Ct.	2160,	2176-78,	2184-85	(2016).		Birchfield	involved	three	

factual	scenarios.		Id.	at	2170-72.		In	the	two	scenarios	involving	blood	tests,11	

defendants	 Danny	 Birchfield	 and	 Steve	 Beylund	 were,	 in	 separate	 incidents,	

arrested	 in	 North	 Dakota	 for	 driving	 while	 impaired.	 	 Id.	 at	 2170-72.	 	 After	

arrest,	each	was	asked	to	submit	to	a	warrantless	blood	test	to	determine	his	

degree	of	impairment.		Id.		Birchfield	refused	to	submit	to	the	test;	was	charged	

with	 and	 convicted	 of	 that	 refusal;	 and,	 as	 a	 result	 of	 a	 conditional	 plea,	

appealed	that	criminal	conviction.		Id.	at	2170-71.		Beylund	agreed	to	submit	to	


   11		The	third	factual	scenario	involved	a	breath	test	rather	than	a	blood	test,	and	it	is	therefore	

distinguishable	on	that	basis.		Birchfield	v.	North	Dakota,	579	U.S.	---,	136	S.	Ct.	2160,	2171,	2176-78,	
2186	(2016);	State	v.	Boyd,	2017	ME	36,	¶	8,	156	A.3d	748.	
24	

the	 test	 and,	 after	 an	 administrative	 hearing,	 he	 was	 fined	 and	 his	 license	 to	

operate	motor	vehicles	was	revoked	for	two	years	based	on	the	results	of	the	

blood	test.		Id.	at	2172,	2186.		Beylund	appealed	that	administrative	decision.		

Id.	at	2172.		The	North	Dakota	Supreme	Court	affirmed	both	decisions,	and	the	

United	 States	 Supreme	 Court	 agreed	 to	 consider	 Birchfield’s	 and	 Beylund’s	

appeals	in	a	consolidated	argument.		Id.	at	2171-72.	

        [¶36]		Both	Birchfield	and	Beylund	were	informed	that	refusing	to	submit	

to	 a	 blood	 test	 would	 expose	 them	 to	 criminal	 penalties.	 	 Id.	 at	 2170,	 2172.		

Because	 Birchfield	 did	 not	 submit	 to	 the	 blood	 test,	 the	 voluntariness	 of	 a	

consent	to	search	was	not	at	issue	in	his	case;	no	search	was	completed	because	

no	blood	was	drawn.		Id.	at	2170.		Rather,	Birchfield	was	convicted	of	the	crime	

of	refusing	to	submit	to	the	blood	test	based	on	North	Dakota’s	implied	consent	

statute	 in	 effect	 at	 the	 time.12	 	 Id.	 at	 2170-71;	 see	 N.D.	 Cent.	 Code	 Ann.	

§§	39-08-01(1)(e),	 (2)-(3),	 39-20-01,	 39-20-14	 (LEXIS,	 2013	 N.D.	 Code	

Archive).	 	 Holding	 that	 reasonableness—as	 “the	 touchstone	 of	 Fourth	

Amendment	 analysis”—demands	 that	 “motorists	 cannot	 be	 deemed	 to	 have	



   12		At	the	time	of	Birchfield’s	arrest	in	North	Dakota,	refusing	to	submit	to	blood	alcohol	testing	

was	 itself	 a	 criminal	 offense	 for	 which	 the	 mandatory	 minimum	 sentence	 included	 a	 fine	 and	
addiction	treatment.		N.D.	Cent.	Code	Ann.	§	39-08-01(1)(e),	(2),	(5)(a)(1)	(LEXIS,	2013	N.D.	Code	
Archive).		The	relevant	North	Dakota	statutes	have	since	been	amended	in	several	respects.		See	N.D.	
Cent.	Code	Ann.	§§	39-08-01,	39-20-01,	39-20-14	(LEXIS	through	2017	Regular	Legis.	Session).	
                                                                                                              25	

consented	to	submit	to	a	blood	test	on	pain	of	committing	a	criminal	offense,”	

the	Supreme	Court	reversed	Birchfield’s	conviction	for	refusing	the	blood	test.		

Birchfield,	579	U.S.	at	---,	136	S.	Ct.	at	2186.			

        [¶37]	 	 Beylund,	 in	 contrast,	 submitted	 to	 the	 blood	 draw;	 he	 was	 not	

criminally	prosecuted	for	his	refusal,	but	he	was	fined	and	his	driver’s	license	

was	revoked	for	two	years	after	an	administrative	hearing.		Id.	at	2172,	2186.		

The	Supreme	Court	noted	that	the	violation	of	an	implied	consent	statute	could	

be	a	basis	for	imposing	civil	penalties	or	evidentiary	consequences	on	drivers	

without	 running	 afoul	 of	 the	 Fourth	 Amendment.13	 	 Id.	 at	 2185.	 	 Even	 in	 the	

context	 of	 an	 administrative	 matter,	 however,	 Beylund	 still	 enjoyed	 the	

constitutional	right	to	refuse	to	consent	to	a	blood	test,	and	his	consent	to	such	

a	blood	test	was	still	effective	only	if	voluntary;	the	results	of	Beylund’s	blood	

test	would	be	inadmissible	in	the	administrative	proceeding	if	obtained	without	

consent.		Id.	at	2186	&	n.9.		The	Supreme	Court	thus	remanded	the	matter	for	

the	 trial	 court	 to	 reconsider	 whether	 Beylund’s	 submission	 to	 the	 blood	 test	




    13		The	Supreme	Court	stated,	“Petitioners	do	not	question	the	constitutionality	of	those	laws,	and	

nothing	we	say	here	should	be	read	to	cast	doubt	on	them.”		Birchfield,	579	U.S.	at	---,	136	S.	Ct.	at	
2185.	 	 LeMeunier-Fitzgerald	 has	 not	 presented	 any	 argument	 that	 either	 the	 suspension	 of	 her	
license	 or	 the	 admission	 of	 evidence	 of	 her	 refusal	 against	 her	 at	 trial	 would	 violate	 the	 Fourth	
Amendment.	
26	

was	truly	consensual,	given	that	the	police	had	incorrectly	informed	Beylund	

that	refusing	the	blood	test	was	criminal.		Id.	

      [¶38]		I	agree	that	Maine’s	imposed	sanctions	for	refusing	to	submit	to	a	

blood	draw	are	not	precisely	the	same	as	those	discussed	in	any	of	the	three	

cases	comprising	the	Birchfield	decision.		See	Court’s	Opinion	¶	25.		In	Maine,	

refusal	is	 an	 aggravating	factor	in	the	sentencing	of	a	 defendant	convicted	of	

operating	 under	 the	 influence	 (OUI),	 29-A	M.R.S.	 §§	 2411(5),	 2521	 (2017),	

whereas	 in	 North	 Dakota	 at	 the	 time	 of	 Birchfield’s	 and	 Beylund’s	 arrests,	

refusal	was	an	independent	crime,	N.D.	Cent.	Code	Ann.	§	39-08-01(1)(e),	(2)	

(LEXIS,	 2013	 N.D.	 Code	 Archive).	 	 I	 respectfully	 disagree,	 however,	 with	 the	

Court’s	attempt	to	distinguish	the	effect	of	the	criminal	penalties	in	Maine	from	

those	addressed	in	North	Dakota.	

      [¶39]		In	both	states,	an	arrestee	is	persuaded	to	submit	to	a	blood	test	

or	else	face	criminal	consequences	beyond	those	for	which	she	has	already	been	

arrested.		Indeed,	a	comparison	of	the	two	states’	statutes	demonstrates	that	

although	 Maine	 does	 not	 have	 a	 separate	 crime	 for	 refusal,	 the	 potential	

consequences	to	a	defendant	for	a	refusal	are	harsher—both	generally	and	as	

compared	to	a	nonrefusal	OUI	conviction—in	Maine	than	in	North	Dakota.		By	

North	 Dakota	 statute	 in	 2013,	 a	 defendant	 was	 subject	 to	 exactly	 the	 same	
                                                                                                              27	

criminal	penalties	for	a	first	offense	refusal	as	for	a	first	offense	OUI,	that	is,	a	

minimum	 fine	 of	 five	 hundred	 dollars	 and	 required	 addiction	 treatment.		

N.D.	Cent.	 Code	 Ann.	 §§	39-08-01(1)(e),	 (2)-(3),	 (5)(a),	 39-20-01(3)	 (LEXIS,	

2013	N.D.	Code	Archive).		The	only	difference	between	a	conviction	for	OUI	and	

one	for	refusal	was	that	those	who	were	convicted	of	refusing	a	blood	test	were	

also	subject	to	a	license	revocation	of	between	180	days	and	3	years.		N.D.	Cent.	

Code	Ann.	§	39-20-01(3).		Thus,	whether	convicted	of	OUI	or	refusal,	a	North	

Dakota	 defendant	 was	 exposed	 to	 identical	 fine	 calculations	 and	 periods	 of	

incarceration.			

        [¶40]	 	 In	 Maine,	 a	 first-offense	 OUI	 conviction	 carries	 a	 minimum	

sentence	 of	 a	 $500	 fine	 and	 a	 license	 suspension	 of	 150	 days.14	 	 29-A	 M.R.S.	

§	2411(5)(A)(1)-(2).	 	 If	 a	 defendant	 is	 convicted	 of	 OUI	 and,	 as	 part	 of	 that	

conviction,	the	State	also	proves	that	the	defendant	refused	a	breath	or	blood	

test,	 the	 court	 must	 impose	 a	 minimum	 fine	 of	 $600,	 a	 minimum	 license	

suspension	 of	 275	 days,	 and	 a	 minimum	 jail	 term	 of	 96	 hours.	 	 29-A	M.R.S.	

§§	2411(5)(A)(1),	(3)(b),	2521(6).		That	means	that	each	individual	convicted	

of	 OUI,	 when	 that	 conviction	 involves	 a	 refusal,	 receives	 a	 sentence	 that	



   14	 	 A	 minimum	 period	 of	 incarceration	 of	 forty-eight	 hours	 is	 imposed	 for	 an	 OUI	 conviction	 if	

certain	aggravating	factors	are	present.		29-A	M.R.S.	§	2411(5)(A)(3)(a)	(2017).	
28	

involves	an	additional	$100	in	fines,	a	license	suspension	that	is	extended	by	

125	days,	and	a	4-day	jail	sentence.		29-A	M.R.S.	§§	2411(5)(A)(1)-(3),	2521(6).		

For	defendants	with	prior	offenses,	the	differences	between	an	OUI	and	an	OUI	

with	 refusal	 become	 more	 significant—a	 $700	 versus	 a	 $900	 fine	 and	 seven	

days	 in	 jail	 versus	 twelve	 days	 in	 jail	 as	 to	 a	 second	 offense;	 $1,100	 versus	

$1,400	and	thirty	days	versus	forty	days	for	a	third	offense;	and	$2,100	versus	

$2,500	and	six	months	versus	six	months	and	twenty	days	for	a	fourth	offense.		

29-A	M.R.S.	§	2411(5)(B)(1)-(2),	(C)(1)-(2),	D(1)-(2).	

       [¶41]		The	Court	concludes,	however,	that	because	the	applicable	class	of	

the	offense	is	the	same	whether	the	defendant	is	convicted	of	OUI	or	OUI	with	

a	 refusal—and	 therefore	 the	 maximum	 sentences	 are	 identical—no	

“demonstrable	increase	in	punishment”	can	be	said	to	result	from	the	refusal.		

Court’s	 Opinion	 ¶	 29.	 	 This	 point	 is	 grounded	 primarily	 in	 the	 government’s	

interest	 in	 crime	 classification	 systems.	 	 In	 determining	 whether	

LeMeunier-Fitzgerald’s	 consent	 was	 voluntarily	 given,	 however,	 we	 are	

primarily	 concerned	 with	 the	 effect	 of	 the	 government’s	 warnings	 on	

LeMeunier-Fitzgerald.		See	Birchfield,	579	U.S.	---,	136	S.	Ct.	at	2186.		That	she	

could	 be	 charged	 with	 the	 same	 class	 of	 crime	 with	 the	 same	 maximum	

sentence,	 whether	 or	 not	 she	 refused	 to	 submit	 to	 the	 blood	 test,	 does	 not	
                                                                                       29	

render	 LeMeunier-Fitzgerald’s	consent	 voluntary	in	light	of	the	warning	that	

one	 option—refusing	 to	 submit—would	 subject	 her	 to	 a	 higher	 minimum	

criminal	 penalty.	 	 The	 sentence	 for	 OUI	 might	 be	 higher	 than	 the	 mandatory	

minimum	for	OUI,	but	the	sentence	for	OUI	with	refusal	must	be	higher	than	the	

mandatory	minimum	for	OUI.			

      [¶42]		Although	it	is	true	that	a	defendant	in	Maine,	unlike	a	defendant	in	

North	 Dakota	 in	 2013,	 can	 be	 sentenced	 to	 those	 heightened	 terms	 only	 if	

convicted	of	the	underlying	OUI,	29-A	M.R.S.	§	2411(1-A)(A),	(C)	(2017),	this	is	

a	 distinction	 without	 a	 difference.	 	 Whether	 a	 criminal	 penalty	 for	 refusal	 is	

labeled	 an	 independent	 crime,	 an	 increase	 in	 the	 class	 of	 crime	 (thereby	

increasing	 the	 authorized	 sentence),	 or	 the	 imposition	 of	 a	 heightened	

authorized	or	mandatory	minimum	sentence,	the	legal	effect	on	a	defendant	is	

indistinguishable:	the	defendant	who	refuses	to	submit	to	a	blood	test	and	is	

convicted	of	that	refusal	as	part	of	an	OUI	conviction	is	subjected	to	a	minimum	

criminal	 penalty	 for	 the	 refusal	 that	 otherwise	 would	 not	 apply.	 	 Given	 this	

identical	effect,	I	submit	that	we	must	evaluate	Maine’s	duty-to-submit	statute	

as	applied	to	LeMeunier-Fitzgerald	according	to	the	Supreme	Court’s	analysis	

in	Birchfield.	
30	

       [¶43]		The	crux	of	the	Supreme	Court’s	disposition	as	to	Birchfield	was	

its	 conclusion	 that	 it	 is	 a	 violation	 of	 the	 Fourth	 Amendment	 to	 expose	 a	

defendant	 to	 criminal	 penalties	 for	 his	 or	 her	 lawful	 exercise	 of	 the	 right	 to	

withhold	 consent	 to	 a	 search	 in	 the	 form	 of	 a	 blood	 test.	 	 See	 Birchfield,	

579	U.S.	at	---,	 136	 S.	 Ct.	 at	 2186.	 	 This	 conclusion	 is	 supported	 by	 countless	

decisions	 prohibiting	 the	 government	 from	 forcing	 a	 person	 to	 waive	 a	

constitutional	right.		See,	e.g.,	Iowa	v.	Tovar,	541	U.S.	77,	81	(2004)	(“Waiver	of	

the	right	to	counsel,	as	of	constitutional	rights	in	the	criminal	process	generally,	

must	 be	 a	 knowing,	 intelligent	 act	 done	 with	 sufficient	 awareness	 of	 the	

relevant	 circumstances.”	 (alteration	 omitted)	 (quotation	 marks	 omitted));	

Miranda	v.	Arizona,	384	U.S.	436,	476	(1966)	(“[A]ny	evidence	that	the	accused	

was	threatened,	tricked,	or	cajoled	into	a	waiver	will,	of	course,	show	that	the	

defendant	did	not	voluntarily	waive	his	privilege.”);	State	v.	Hill,	2014	ME	16,	

¶¶	5-6,	86	A.3d	628	(stating	that	a	waiver	of	the	constitutional	right	to	counsel	

must	be	“voluntary,	knowing,	and	intelligent”);	State	v.	Prescott,	2012	ME	96,	

¶¶	 11-17,	 48	 A.3d	 218	 (holding	 that	 the	 defendant’s	 statements	 to	 police—

which	were	made	when	the	defendant	reasonably	felt	she	was	constrained	by	

the	 police—must	 be	 suppressed);	 State	 v.	 Tuplin,	 2006	 ME	 83,	 ¶¶	 19-20,	

901	A.2d	 792	 (discussing	 the	 best	 practice	 to	 avoid	 the	 defendant	 “feel[ing]	
                                                                                          31	

pressured	 into	 giving	 up	 his	 right	 to	 remain	 silent”).	 	 Fourth	 Amendment	

jurisprudence	imposes	no	duty	on	a	criminal	defendant	to	consent	or	submit	to	

a	search.		See	Barlow,	320	A.2d	at	899	(“Coercion	which	will	invalidate	consent	

and	 render	 a	 search	 unreasonable	 in	 constitutional	 reference	 is	 not	 solely	

confined	to	a	consent	obtained	by	threats	or	force,	but	is	equally	operative	in	

those	situations	where	the	consent	is	granted	only	in	submission	to	a	claim	of	

lawful	authority.”).	

       [¶44]	 	 The	 crux	 of	 the	 Supreme	 Court’s	 disposition	 regarding	 Beylund	

was	its	conclusion	that	threatening	to	expose	a	defendant	to	criminal	penalties	

for	exercising	his	lawful	right	to	refuse	a	blood	test	implicates	the	voluntariness	

of	a	person’s	consent	to	such	a	blood	test	even	in	the	context	of	administrative	

proceedings.	 	 See	 Birchfied,	 579	 U.S.	 at	 ---,	 136	 S.	 Ct.	 at	 2186.	 	 The	 logical	

corollary	to	both	principles	is	that	it	is	a	violation	of	the	Fourth	Amendment	to	

allow	the	State,	in	a	criminal	matter,	to	use	the	evidence	obtained	from	a	search	

undertaken	after	warning	the	accused	that,	if	she	is	convicted	of	OUI,	her	refusal	

will	be	used	as	evidence	against	her	during	trial	and,	if	proved,	will	subject	her	

to	an	increased	criminal	penalty.		

       [¶45]	 	 In	 a	 criminal	 prosecution,	 when	 the	 State	 fails	 to	 obtain	 the	

warrant	that	is	the	hallmark	of	a	reasonable	search	and	seizure	and	when	no	
32	

exigent	circumstances	otherwise	exist,	the	State	may	not	use	the	only	avenue	

remaining	 to	 justify	 the	 search—obtaining	 the	 suspect’s	 consent	 to	 the	

search—by	informing	the	suspect	that	she	has	no	lawful	choice	but	to	consent.		

Just	as	it	is	per	se	unreasonable	to	subject	a	defendant	to	a	criminal	penalty	for	

refusing	a	blood	test,	the	threat	of	such	a	criminal	penalty	negates	any	consent	

given	after	such	a	warning	in	the	context	of	a	criminal	prosecution.		In	my	view,	

LeMeunier-Fitzgerald’s	 consent	 to	 her	 blood	 test	 in	 these	 circumstances	 was	

coerced	 and	 involuntary	 as	 a	 matter	 of	 law.	 	 See	 Birchfield,	 579	 U.S.	 at	 ---,	

136	S.	Ct.	at	2186.			

        [¶46]	 	 Because	 LeMeunier-Fitzgerald’s	 consent	 was	 not	 “freely	 and	

voluntarily	given,”	the	test	was	an	unreasonable	search	within	the	meaning	of	

the	 Fourth	 Amendment.	 	 The	 long-established	 remedy	 for	 unreasonable	

searches	is	set	out	in	the	exclusionary	rule:	the	evidence	obtained	as	a	result	of	

that	 unreasonable	 search	 was	 therefore	 inadmissible	 at	 trial.15	 	 See	 Mapp	 v.	

Ohio,	 367	 U.S.	 643,	 655-60	 (1961);	 State	 v.	 McNaughton,	 2017	ME	 173,	 ¶	42,	



   15		The	application	of	the	exclusionary	rule	is	distinguishable	from	the	point	made	in	Birchfield	

that,	in	its	earlier	decisions,	the	Supreme	Court	had	“referred	approvingly	to	the	general	concept	of	
implied-consent	 laws	 that	 impose	 civil	 penalties	 and	 evidentiary	 consequences	 on	 motorist	 who	
refuse	to	comply.”		579	U.S.	at	---,	136	S.	Ct.	at	2185.		There,	the	Supreme	Court	was	discussing	the	
admission	of	the	fact	of	the	defendant’s	refusal,	id.,	whereas	LeMeunier-Fitzgerald’s	case	regards	the	
admission	of	the	evidence	obtained	as	a	result	of	an	unreasonable	search	performed	in	the	absence	of	
a	warrant,	exigent	circumstance,	or	consent.	
	
                                                                                                                   33	

168	 A.3d	 807;	 State	 v.	 Hawkins,	 261	 A.2d	 255,	 257-58	 (Me.	 1970).	 	 I	 would	

vacate	 LeMeunier-Fitzgerald’s	 conviction	 and	 remand	 with	 instructions	 to	

grant	her	motion	to	suppress	the	results	of	her	blood	alcohol	test.16	

                                        	         	        	        	        	

JABAR,	J.,	dissenting.		

	        [¶47]	 	 I	 agree	 with	 Justice	 Gorman’s	 analysis,	 but	 I	 write	 separately	

because	 I	 do	 not	 believe	 her	 dissent	 goes	 far	 enough.	 	 I	 agree	 that	

LeMeunier-Fitzgerald’s	 consent	 to	 the	 blood	 test,	 obtained	 under	 what	

amounted	 to	 the	 threat	 of	 an	 enhanced	 criminal	 penalty,	 was	 coerced	 and	

involuntary	 as	 a	 matter	 of	 law.	 	 Gorman,	 J.,	 Dissenting	 Opinion	 ¶¶	 42,	 45.		

However,	I	have	additional	serious	concerns	with	the	State’s	implied	consent	

form,	which	informs	drivers	(1)	that	there	exists	a	“duty”	to	submit	to	a	blood	

test,	 and	 (2)	 that	 evidence	 of	 refusal	 will	 be	 admissible	 in	 evidence	 at	 trial	

against	the	accused	driver.		These	two	representations	within	the	form—and	

read	to	LeMeunier-Fitzgerald—constitute	misrepresentations	of	the	law.			



    16		The	State	argues	that	suppression	of	the	test	results	was	not	required	because	the	officer	was	

acting	 in	 “good	 faith	 reliance	 on	 existing	 law,”	 which,	 it	 argues,	 is	 a	 recognized	 exception	 to	 the	
exclusionary	rule	that	applies	when	“new	developments	in	the	law	have	upended	the	settled	rules	on	
which	the	police	relied.”		United	States	v.	Sparks,	711	F.3d	58,	68	(1st	Cir.	2013);	see	Davis	v.	United	
States,	564	U.S.	229,	236	(2011).		We	have	not	heretofore	adopted	this	rule	and	I	see	no	reason	to	do	
so	 regarding	 the	 consent	 exception	 to	 the	 requirement	 of	 a	 warrant	 imposed	 by	 the	 Fourth	
Amendment.	 	 See	 Birchfield,	 579	 U.S.	 at	 ---,	 136	 S.	 Ct.	 at	 2186	 n.9	 (citing	 Heien	 v.	 North	 Carolina,	
574	U.S.	---,	135	S.	Ct.	530	(2014)).	
34	

A.	   Duty	to	Submit	to	a	Blood	Test		

	     [¶48]		In	this	case,	the	police	officer	used	Maine’s	implied	consent	form	

to	 advise	 LeMeunier-Fitzgerald	 of	 her	 duty	 to	 submit	 to	 a	 blood	 test	 for	 the	

purpose	of	determining	her	blood	alcohol	level.		The	Court,	however,	addresses	

only	a	portion	of	the	implied	consent	form	that	the	officer	read	to	the	defendant.		

Court’s	Opinion	¶	4.		The	police	officer	also	read	the	following	portion	of	the	

form	to	LeMeunier-Fitzgerald:		

      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.	
	
      [¶49]		This	language	in	the	form,	which	pre-dated	Birchfield,	applied	to	

“chemical	 tests”:	 both	 breath	 and	 blood	 tests.	 	 Birchfield	 changed	 everything	

with	regard	to	blood	tests—and	Maine’s	implied	consent	form	should	no	longer	

state	that	defendants	have	a	“duty”	to	submit	to	a	blood	test.		See	Birchfield	v.	

North	 Dakota,	 579	 U.S.	 ---,	 136	 S.	 Ct.	 2160,	 2185	 (2016)	 (concluding	 “that	 a	

breath	test,	but	not	a	blood	test,	may	be	administered	as	a	search	incident	to	a	

lawful	 arrest	 for	 drunk	 driving”)	 (emphasis	 added).	 	 Birchfield	 now	 requires	

law	enforcement	to	obtain	a	search	warrant	to	extract	blood	from	a	defendant	

for	purposes	of	a	blood	test	to	determine	the	alcohol	level	of	the	defendant.		Id.	

at	2184.			
                                                                                     35	

      [¶50]		The	United	States	Supreme	Court	and	this	Court	have	recognized	

exceptions	to	the	warrant	requirement.		See,	e.g.,	Kentucky	v.	King,	563	U.S.	452,	

459	 (2011);	 State	 v.	 Boyd,	 2017	 ME	 36,	 ¶	 8,	 156	A.3d	 748.	 	 Consent	 by	 the	

defendant	is	a	well-recognized	exception	to	the	need	for	search	warrants.		See,	

e.g.,	Schneckloth	v.	Bustamonte,	412	U.S.	218,	219	(1973).		The	pivotal	issue	in	

this	case	is	whether	LeMeunier-Fitzgerald	voluntarily	gave	her	consent	to	the	

taking	of	her	blood.		There	is	a	great	deal	of	jurisprudence	setting	out	how	we	

evaluate	 whether	 a	 defendant	 has	 voluntarily	 consented	 to	 a	 warrantless	

search.		See,	e.g.,	State	v.	Nadeau,	2010	ME	71,	¶¶	17,	56,	1	A.3d	445;	State	v.	

Bailey,	2010	ME	15,	¶¶	22-24,	989	A.2d	716;	State	v.	Faulkner,	586	A.2d	1246,	

1247	(Me.	1991);	State	v.	Fredette,	411	A.2d	65,	68	(Me.	1979);	State	v.	McLain,	

367	 A.2d	 213,	 216-17	 (Me.	 1976);	 State	 v.	 Barlow,	 320	 A.2d	 895,	 899	

(Me.	1974).	

      [¶51]	 	 Citing	 Barlow,	 among	 other	 sources	 of	 law,	 the	 Court	

acknowledges	 that	 consent	 cannot	 be	 voluntary	 if	 it	 is	 induced	 by	

misrepresentation.	 	 Court’s	 Opinion	 ¶¶	 22,	 32.	 	 The	 Barlow	 Court,	 citing	 to	

Supreme	 Court	 precedent,	 explained	 “that	 a	 search	 cannot	 be	 justified	 as	

reasonable	 and	 lawful	 on	 the	 basis	 of	 consent	 when	 that	 ‘consent’	 has	 been	

given	 only	 after	 the	 official	 conducting	 the	 search	 has	 asserted	 an	 alleged	
36	

authoritative	 right	 to	 search.”	 	 Barlow,	 320	A.2d	 at	 900	 (quoting	 Bumper	 v.	

North	Carolina,	391	U.S.	543,	550	(1968)).		In	Barlow,	this	Court	specifically	said	

that,	

         [w]here	 an	 officer	 .	 .	 .	 conveys	 to	 the	 defendant	 by	 affirmative	
         misrepresentations	 that	 he	 has	 the	 right	 to	 search	 without	 a	
         warrant	as	in	the	instant	case,	the	defendant’s	consent	to	the	search	
         given	in	response	to	such	false	assertions	must	be	regarded	as	the	
         mere	 submission	 of	 a	 law-abiding	 citizen	 to	 an	 officer	 of	 the	 law	
         and	cannot	be	construed	 as	a	valid	waiver	of	[her]	constitutional	
         rights	against	an	unreasonable	search	and	seizure.			
	
320	A.2d	at	900.	

         [¶52]		Here,	Birchfield	compels	us	to	conclude	that	the	implied	consent	

warning	 stating	 that	 a	 defendant	 has	 a	 duty	 to	 submit	 to	 a	 chemical	 test	 to	

determine	 her	 alcohol	 level	 is	 a	 misrepresentation	 of	 the	 law.	 	 This	 is	 no	

different	than	the	police	officers	in	Barlow	who	told	the	defendant	that	they	had	

the	right	to	search	without	a	warrant.		See	Barlow,	320	A.2d	at	898-99.		Both	

involved	 misrepresentations	 of	 the	 law	 intended	 to	 overcome	 a	 defendant’s	

right	 to	 withhold	 consent	 to	 a	 search.	 	 In	 light	 of	 Birchfield,	

LeMeunier-Fitzgerald	 did	 not	 have	 a	 duty	 to	 take	 a	 blood	 test;	 she	 had	 an	

absolute	right	to	refuse	to	consent	to	a	blood	test.		See	Birchfield,	569	U.S.	at	---,	

136	S.	Ct.	at	2186.		Therefore,	just	as	the	threat	of	an	enhanced	criminal	penalty	

is	coercive	as	a	matter	of	law,	a	police	officer’s	statement	that	a	defendant	has	
                                                                                     37	

a	“duty	to	submit	to	and	complete	chemical	tests	to	determine	.	.	.	alcohol	level	

and	drug	concentration”	is	coercive	as	a	matter	of	law.			

B.	   Comment	on	Evidentiary	Consequences	of	Refusal		

      [¶53]	 	 The	 second	 statement	 made	 to	 the	 defendant	 also	 constitutes	 a	

misrepresentation	 of	 the	 law.	 	 The	 police	 officer,	 again	 reading	 from	 Maine’s	

implied	consent	form,	stated	to	LeMeunier-Fitzgerald:	

     Your	failure	to	submit	to	a	chemical	test	is	admissible	against	you	
     at	any	trial	for	operating	while	under	the	influence	of	intoxicating	
     liquor	or	drugs.			
     	
Because	Birchfield	gives	a	defendant	the	constitutional	right	to	refuse	to	submit	

to	a	blood	test,	informing	LeMeunier-Fitzgerald	that	if	she	refused,	that	refusal	

would	be	 admissible	 against	her	at	trial,	was	a	misrepresentation	of	the	law,	

and	thus	coercive.			

      [¶54]		We	recently	held	in	State	v.	Glover	that	the	State	may	not	comment	

on	a	defendant’s	failure	to	give	consent	to	a	search.		See	2014	ME	49,	¶¶	16-17,	

89	A.3d	1077.		In	Glover,	the	defendant	exercised	his	constitutional	right	not	to	

submit	to	a	warrantless	DNA	test,	and	the	State	repeatedly	referenced	Glover’s	

refusal	to	consent	to	the	warrantless	search.		Id.	¶	14.		Relying	on	the	principle	

that	the	“value	of	constitutional	privileges	is	largely	destroyed	if	persons	can	be	

penalized	 for	 relying	 on	 them,”	 id.	 ¶	 13	 (quotation	 marks	 omitted),	 we	
38	

“conclude[d]	 that	 the	 manner	 in	 which	 Glover’s	 exercise	 of	 a	 constitutional	

right	was	used	to	penalize	him	at	trial	[was]	fundamentally	unfair	and	contrary	

to	 the	 principles	 of	 justice	 that	 encourage	 the	 free	 exercise	 of	 constitutional	

rights,”	id.	¶	16.			

	      [¶55]		After	Glover,	telling	a	defendant	that	the	prosecution	will	use	her	

refusal	 against	 her	 if	 she	 does	 not	 agree	 to	 the	 blood	 test	 is	 a	 significant	

misrepresentation	of	the	law.		Ultimately,	it	is	not	important	what	could	happen	

at	trial;	it	is	the	misrepresentation	of	the	law	at	the	time	of	the	inducement	of	

consent	that	is	of	import.		When	an	officer	misrepresents	the	law	and	allows	the	

defendant	to	believe	that	any	refusal	to	consent	will	be	used	against	her	at	trial,	

the	misrepresentation	is	inherently	coercive.	

	      [¶56]	 	 I	 would	 hold	 that	 it	 was	 coercive	 as	 a	 matter	 of	 law	 to	 tell	

LeMeunier-Fitzgerald	 the	 following	 three	 things:	 (1)	 that	 she	 would	 face	 an	

enhanced	criminal	penalty	for	refusal	to	submit	to	a	blood	test,	(2)	that	she	had	

a	“duty	to	submit”	to	the	blood	test,	 and	(3)	that	 any	evidence	of	her	 refusal	

would	 be	 admissible	 against	 her	 in	 a	 trial.	 	 The	 State’s	 implied	 consent	 form	

should	be	modified	to	remove	the	language	that	misrepresents	the	law	in	light	

of	Birchfield.			
                                                                                      39	

                              	      	      	      	      	

HJELM,	J.,	dissenting.		

	     [¶57]	 	 I	 join	 Justice	 Gorman	 in	 her	 dissent	 from	 the	 Court’s	conclusion	

that	no	coercion	results	from	a	law	enforcement	officer’s	statement	to	a	driver	

that,	if	she	is	ultimately	convicted	of	OUI,	her	failure	to	submit	to	a	blood	draw	

would	 subject	 her	 to	 an	 enhanced	 criminal	 penalty—including	 a	 minimum	

mandatory	 jail	 term.	 	 I	 part	 ways	 with	 Justice	 Gorman’s	 analysis	 only	 on	 the	

issue	of	the	legal	and	procedural	consequences	of	our	mutual	conclusion	that	

the	 officer’s	 duty-to-submit	 warning	 was	 coercive.	 	 In	 my	 view,	 the	 coercion	

resulting	from	the	warning	given	to	LeMeunier-Fitzgerald	does	not	render	her	

submission	 to	 the	 blood	 draw	 involuntary	 as	 a	 matter	 of	 law.	 	 Rather,	 the	

coercive	 effect	 of	 the	 warning	 is	 one	 factor	 within	 the	 totality	 of	 the	

circumstances	that	the	trial	court	must	consider	in	its	voluntariness	analysis.		

For	that	reason,	I	would	remand	the	matter	for	the	court	to	reconsider	the	issue	

of	 whether	 LeMeunier-Fitzgerald’s	 submission	 to	 the	 blood	 draw	 ultimately	

was	voluntary.	

      [¶58]		In	the	face	of	LeMeunier-Fitzgerald’s	challenge	to	the	admissibility	

of	 evidence	 obtained	 from	 the	 blood	 sample,	 the	 State	 bore	 the	 burden	 of	

proving	that	her	consent	to	the	search	that	produced	the	blood	sample	“was,	in	
40	

fact,	freely	and	voluntarily	given.”		State	v.	Bailey,	2010	ME	15,	¶	22,	989	A.2d	

716	 (quotation	 marks	 omitted).	 	 It	 is	 a	 basic	 principle	 of	 law	 that	 when	 an	

accused	 challenges	 the	 voluntariness	 of	 a	 consent	 to	 search,	 a	 court	 is	 to	

adjudicate	 the	 issue	 based	 on	 the	 totality	 of	 the	 circumstances.17	 	 See,	 e.g.,	

Birchfield	 v.	 North	 Dakota,	 579	 U.S.	 ---,	 136	 S.	 Ct.	 2160,	 2186	 (2016);	 Ohio	 v.	

Robinette,	519	U.S.	33,	40	(1996)	(explaining	that	voluntariness	of	a	consent	to	

a	 search	 is	 “a	 question	 of	 fact	 to	 be	 determined	 from	 all	 the	 circumstances”	

(quotation	 marks	omitted));	Schneckloth	v.	Bustamonte,	 412	U.S.	218,	224-26	

(1973)	(explaining	that	voluntariness	is	determined	by	an	assessment	of	“the	

totality	 of	 all	 the	 surrounding	 circumstances”	 and	 does	 not	 “turn[]	 on	 the	

presence	or	absence	of	a	single	controlling	criterion”);	United	States	v.	Trueber,	

238	F.3d	79,	95	(1st	Cir.	2001)	(“The	question	of	voluntariness	[of	consent	to	a	

search	and	questioning]	is	a	question	of	fact	determined	by	the	totality	of	the	

circumstances.”);	 State	 v.	 Marquis,	 2018	 ME	 39,	 ¶	 17,	 181	 A.3d	 684	 (“The	

determination	of	consent	is	a	mixed	question	of	fact	and	law	to	be	determined	


   17		The	same	principle	applies	to	the	issue	of	voluntariness	in	other	contexts,	such	as	statements	

to	 law	 enforcement.	 	 See,	 e.g.,	 Dickerson	 v.	 United	 States,	 530	 U.S.	 428,	 433-34	 (2000)	 (“The	
determination	[of	voluntariness	of	a	confession]	depends	upon	a	weighing	of	the	circumstances	of	
pressure	 against	 the	 power	 of	 resistance	 of	 the	 person	 confessing.”	 (quotation	 marks	 omitted));	
United	States	v.	Palmer,	203	F.3d	55,	60	(1st	Cir.	2000)	(“To	determine	the	voluntariness	of	a	waiver	
[of	Miranda	rights],	it	is	necessary	to	look	at	the	totality	of	the	circumstances	.	.	.	.”);	State	v.	Hunt,	
2016	ME	172,	¶¶	19-22,	151	A.3d	911	(explaining	that	voluntariness	of	a	confession	is	determined	
by	examining	the	totality	of	the	circumstances).	
                                                                                       41	

from	 all	 the	 circumstances	 existing	 at	 the	 time	 of	 the	 search.”);	 Bailey,	

2010	ME	15,	 ¶¶	 23-24,	 989	 A.2d	 716	 (“As	 with	 other	 factors	 bearing	 on	

voluntariness,	whether	a	misrepresentation	of	the	purpose	of	a	search	by	the	

police	 invalidates	 consent	 is	 a	 question	 of	 fact	 based	 on	 the	 totality	 of	 the	

circumstances.”);	State	v.	Barlow,	320	 A.2d	895,	899	(Me.	1974)	(“Whether	a	

given	 consent	 to	 a	 search	 in	 a	 particular	 case	 was	 in	 fact	 voluntary	 or	 the	

product	 of	 duress,	 coercion,	 express	 or	 implied,	 is	 a	 question	 of	 fact	 to	 be	

determined	from	the	totality	of	all	the	surrounding	circumstances.”).			

      [¶59]		Here,	despite	the	lessons	of	Birchfield,	the	court	failed	to	assign	any	

coercive	effect	to	the	mandatory	minimum	sentence-related	information	given	

by	 the	 officer	 to	 LeMeunier-Fitzgerald.	 	 For	 the	 reasons	 explained	 in	 Justice	

Gorman’s	dissent,	the	court’s	analysis	was	erroneous.		That	error,	however,	is	

not	dispositive	and	does	not	warrant	the	conclusion	as	a	matter	of	law	that	the	

challenged	 evidence	 must	 be	 excluded.	 	 This	 is	 because	 evidence	 of	 coercion	

arising	from	the	duty-to-submit	warning	is	but	one	element—albeit	potentially	

a	 significant	 one—within	 the	 universe	 of	 circumstances	 revealed	 by	 the	

evidence	 presented	 at	 the	 motion	 hearing.	 	 Indeed,	 although	 the	 parties	

stipulated	to	certain	facts,	including	the	content	of	the	refusal-related	warnings	

provided	to	LeMeunier-Fitzgerald,	the	State	also	presented	testimony	from	the	
42	

officer	describing	“the	scene”	at	the	hospital,	where	the	officer	informed	her	of	

the	 consequences	 of	 a	 refusal.	 	 In	 that	 testimony,	 the	 officer	 described	

LeMeunier-Fitzgerald’s	 demeanor	 during	 his	 interactions	 with	 her,	 her	

conduct,	and	other	factual	matters	such	as	her	execution	of	a	medical	release	

form.		All	of	this	information	is	material	to	reveal	the	broader	context	in	which	

LeMeunier-Fitzgerald	decided	to	submit	to	the	blood	draw	and	which	the	court	

must	 consider—in	 conjunction	 with	 the	 coercive	 warning—when	 evaluating	

the	voluntariness	of	that	decision.			

      [¶60]		In	Birchfield,	after	determining	that	the	implied	consent	warnings	

were	improper,	the	Court	remanded	the	Beylund	matter	for	the	trial	court	to	

reconsider	 whether,	 based	 on	 the	 totality	 of	 the	 circumstances	 and	

notwithstanding	 the	 coercive	 effect	 of	 the	 warnings,	 Beylund’s	 consent	 was	

voluntary.		579	U.S.	---,	136	S.	Ct.	at	2186-87.		In	my	view,	the	same	situation	

exists	here.		Because	the	trial	court	committed	legal	error	in	its	treatment	of	the	

warnings,	 I	 would	 remand	 the	 matter	 for	 the	 court	 to	 reconsider	 whether,	

based	on	the	totality	of	the	circumstances	that	includes	the	coercion	created	by	

the	duty-to-submit	warning—the	State	has	proved	that	LeMeunier-Fitzgerald	

voluntarily	submitted	to	the	blood	draw.	

	     	     	      	     	      	
                                                                                   43	

Jamesa	 J.	 Drake,	 Esq.	 (orally),	 and	 Zachary	 L.	 Heiden,	 Esq.,	 American	 Civil	
Liberties	Union	of	Maine	Foundation,	Portland,	and	Darrick	X.	Banda,	Esq.,	Law	
Offices	 of	 Ronald	 W.	 Bourget,	 Augusta,	 for	 appellant	 Lyanne	 Lemunier-
Fitzgerald	
	
Maeghan	 Maloney,	 District	 Attorney,	 and	 Kate	 E.	 Marshall,	 Asst.	 Dist.	 Atty.	
(orally),	Prosecutorial	District	IV,	Augusta,	for	appellee	State	of	Maine	
	
Tyler	J.	Smith,	Esq.,	Libby	O’Brien	Kingsley	&	Champion,	LLC,	Kennebunk,	for	
amicus	curiae	Maine	Association	of	Criminal	Defense	Attorneys	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.,	
Department	of	the	Attorney	General,	Augusta,	for	amicus	curiae	Department	of	
the	Attorney	General	
	
	
Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2016-222	
FOR	CLERK	REFERENCE	ONLY	
