Opinion
UNIFIED CRIMINAL DOCKET No. CR-15-2251
08-05-2015
STATE OF MAINE v. LEE McALENEY, Defendant
STATE OF MAINE
CUMBERLAND, ss.
ORDER
A hearing was held on defendant Lee McAleney's motion to suppress the results of a blood test on July 30, 2015. The parties were given until August 3 to submit any further authority if they chose, and none has been submitted.
The court finds as follows:
Just before midnight on March 6, 2015, Sgt. Marc Marion of the Cumberland County Sheriff's office stopped McAleney's vehicle. He undertook field sobriety tests, on which she performed poorly, and arrested her for OUI. McAleney does not challenge the legality of the stop or the existence of probable cause for arrest.
Marion then drove McAleney to the Cumberland County Jail for an intoxilyzer test. Before Marion could administer the test, when McAleney was about to begin the observation period, she vomited on the floor. Considering the circumstances, Marion decided to administer a blood test.
McAleney agreed to have a blood sample taken. Marion then called for a person licensed to draw blood.
Gorham Officer Dean Hannon, who is licensed as an advanced emergency medicine technician and in that capacity is authorized to draw blood samples, arrived at the Jail when McAleney had been waiting about 20 minutes. By this time it was approximately 1:41 am on March 7.
Before he broke the seals on his blood test kit, Hannon asked McAleney if she would consent to the taking of a blood sample, and she said yes. Hannon then broke the seals and McAleney signed the consent form that accompanies the blood test kit. The consent form was admitted into evidence at the hearing, and the text over McAleney's signature states, ""Let my signature state that I have given consent for these blood samples to be taken. McAleney was very cooperative through her interactions with both Sgt. Marion and Officer Hannon.
No search warrant was sought or obtained for the blood draw. Because McAleney consented to the blood draw, neither Sgt. Marion nor Officer Hannon found it necessary to read her the implied consent form.
Counsel for McAleney argues that based on Missouri v. McNeely, 133 S.Ct. 1552 (2013), no blood draw could be taken without a search warrant. The McNeely case, however, is distinguishable because the defendant in McNeely had refused to consent to a blood draw and the issue in McNeely was whether the natural metabolization of alcohol in the blood constitutes a per se exigent circumstance that excused the need to obtain a warrant. The court held that whether exigent circumstances exist must be evaluated on a case-by-case basis depending on the totality of the specific circumstances in each case.
In this case McAleney consented a blood draw. It is the State's burden to demonstrate by a preponderance of the evidence that consent was given voluntarily. State v. Bailey, 2010 ME 15 ¶ 19, 969 A.2d 716. The State has met that burden in this case. On this record there is no evidence that McAleney did not voluntarily consent. Although the defense argues that her consent was involuntary because she was in custody, the court finds that the officers' testimony establishes that McAleney was cooperative throughout and that she freely manifested her consent to the blood sample orally to the officers and in writing on the consent form.
Defendant's motion to suppress is denied. Dated: August 5, 2015
/s/_________
Thomas D. Warren
Justice, Superior Court