Opinion
CR-15-1199
08-13-2015
STATE OF MAINE, Plaintiff, v. DAVID WHITING, Defendant
ORDER
Lance E. Walker, Justice
This matter came before the court for a hearing on August 11, 2015, on Defendant's Motion to Suppress. Defendant seeks to suppress the result of an analysis of his blood following an automobile accident.
"Upon a motion to suppress the fruits of a warrantless search the State carries the burden of demonstrating by a preponderance of the evidence that an objective manifestation of consent was given by word or gesture by one bearing an appropriate relationship to the property searched." State v. Fredette, 411 A.2d 65, 68 (Me. 1979) (citations omitted). This burden is not met by a showing of no more than "a mere 'acquiescence to a claim of lawful authority." State v. Cress, 576 A.2d 1366, 1367 (Me. 1990) (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)). Rather, the State must prove that the consent was freely and voluntarily given and was not the product of express or implied coercion. State v. Fredette, 411 A.2d at 68.
Voluntariness is a question of fact to be determined from the totality of the circumstances. State v. Koucoules, 343 A.2d 860, 873 (Me. 1974).
Based upon the record taken as a whole, the Court finds ample, competent evidence, which by substantially greater than a preponderance, supports the State's burden and militates against granting Defendant's motion.
Officer Brown testified that Mr. Whiting was alert, appropriately responsive and generally appeared sentient and aware, based on Officer Brown's interaction with Mr. Whiting as well as observing Mr. Whiting with other hospital staff. The circumstances and surrounding context leads one ineluctably to conclude that Mr. Whiting's acquiescence to a blood draw was not the result of express or implied coercion and that he gave consent knowingly.
Dr. Doiron testified for Defendant. Dr. Doiron is a clinical neuropsychologist, who first met Defendant on June 16, 2015 and reviewed the emergency room medical records from September 16, 2014, as well as the police report and other salient documents related to Mr. Whiting's medical history. Doiron also interviewed Mr. Whiting. Dr. Doiron concluded that Mr. Whiting suffered a mild traumatic brain injury as a result of the accident, which inhibited his ability to analyze the questions being put to him by Officer Brown.
Dr. Doiron's testimony was not persuasive with respect to Mr. Whiting's diminished capacity to give consent to the blood draw. Mr. Whiting scored a 15 on the Glasgow Coma Scale, which Doiron conceded on cross-examination is the highest score one can achieve, indicating best eye, verbal and motor responses. Dr. Doiron pointed out that the GCS is being called into question by medical-research literature, although Dr. Doiron did not offer for the Court's examination any such literature, nor did he further elaborate on that point. No other testimony was offered that could establish a causal connection between what Doiron referred to as Mr. Whiting's cooperative nature, which predated the injury, and a diminished capacity to provide meaningful consent to the blood draw. Likewise, although Doiron gave significance to Mr. Whiting's mistakes in answering questions on the night of his injury, such as his correct age, there was no testimony to establish how providing appropriate and responsive, albeit factually inaccurate statements, calls into question Mr. Whiting's consent to the blood draw. Dr. Doiron's testimony amounted to a disconnected constellation of observations and dubious conclusions, which ultimately ran contrary to every other meaningful and objectively verifiable measure of Mr. Whiting's ability, to provide knowing consent free from coercion, such as his interaction with Officer Brown and the GCS score.
Under these circumstances, Defendant's Motion to Suppress the results of his blood analysis is DENIED.
SO ORDERED.