Roberts v. State of Maine

STAHL, TORRUELLA, Before CYR Judges. Circuit TORRUELLA, Judge. Chief “implied imposes Maine’s consent” law two-day mandatory jail minimum sentence on take a defendants who refuse to blood/alcohol operating test and are later convicted under influence intoxi- motor vehicle cating liquor. §§ 29 M.R.S.A. 1312-B. Petitioner-Appellant Alan D. Roberts chal- lenges constitutionality of his conviction because, prior law and sentence this test,. his decision not take ,a (1) police “the officer informed Roberts of consequences” to take test mandatory jail did mention sen- but tence, and officer denied Rob- request attorney. call erts’ his. findWe particular that under circumstances case, this to due Roberts’ constitutional petition for writ violated and .was granted corpus habeas must to his two-day mandatory sentence.

I. BACKGROUND January Alan On Officer Main Waterville, Department Police Maine stopped Roberts after Main observed Officer driving erratically. Roberts Officer Main breath sus- smelled alcohol Roberts’ driving pected Roberts was while intoxicated initially operat- arrested but Roberts suspended a vehicle with license § 2184. violation of 29 M.R.S.A. Officer Main handcuffed Roberts then trans- ported him to the Waterville Police Station processing. remained in hand- period time throughout cuffs relevant issue this case. station, law,

At the Officer Main read the current a defendant’s refusal to sub- Roberts, Maine’s consent” form mit to is considered to an “aggra- normally stopped which is read to driver vating factor” for the determination of that operating or arrested for under the influence and, defendant’s significantly, sentence more intoxicating liquor pursuant of to 29 M.R.S.A. that defendant’s refusal will result a man- § form 1312. The states: datory minimum of sentence 48 hours incar- operating

By attempting operate or a ceration conviction. 29 M.R.S.A. you duty 1312-B(2) (25(B)(4). § motor vehicle this State have a & complete submit to and chemical tests to Unfortunately, changes these did make your determine level and blood-alcohol their, way portion into the of the statute drug concentration. mandating police say what the must to sus- give you I a will breath test unless I decide pected drunk-drivers after those drivers are unreasonable, is which case another 1312(1). stopped. § 29 M.R.S.A As a re- given. you chemical test will If sult, “implied consent” form was never requested you may to take a blood test ask changed to reflect the additional conse- your physician perform if the test quences for to submit to a blood/al- your physician reasonably available. Likewise, cohol during pro- test. Roberts’ you comply your duty If fail with station, cessing at the Officer Main complete your submit to and chemical tests never informed Roberts of the con- additional permit apply driver’s license or or sequences, including mandatory jail sen- or suspended for obtain license will be tence. suspend- for at least months and During period when Officer Main was long years. ed as as 3 Your failure to administering “implied proce- consent” is admissible Roberts, dure to Roberts asked several times against you operating trial for while telephone use the purpose for the of call- liquor of intoxicating the influence attorney. his Officer Main refused to drugs. or allow Roberts to do so. Officer Main claimed I have of been advised of permission that he denied Roberts to contact comply duty failure to with the to submit attorney his uncoopera- because Roberts was complete to and a chemical test at the shouting tive and obscenities. request of an officer and DO NOT WISH eventually TO SUBMIT TO A TEST. Roberts refused to take the He sign test. also refused to blood/aleohol “implied consent” form after the form Signature Refusing of Person Test Subsequently, read him. implied essentially Maine’s consent form complaint against filed a criminal Roberts language tracks the of the him, charging among things, oper- other requires statute which officers to warn sus- ating a motor of vehicle under the influence pected potential drunk drivers conse- (“OUI”) intoxicating liquor operating quences take the blood/alcohol (cid:127) suspended license in violation of 29 § test. M.R.S.A. 1312. As the statute § § M.R.S.A. 1312-B and 29 M.R.S.A. enacted, originally two conse- respectively. quences were, for failure to consent as the states, suspension court, form driv- After a trial in the Maine district er’s license and the oper- admission of the fact that Roberts was convicted on the OUI ating suspended charges. refused to take the test in evi- on a At license 1987, however, sentencing, dence at trial. require- the Maine the court .followed the 1312-B(2)(B)(4) legislature amended its provide statute to ments of 29 M.R.S.A. consequences, involving imposed ,48-hour two additional both minimum sentencing, refusing to for take sentence incarceration as result Rob- blood/alco- Laws, hol test. 1987 Maine ch. 791. erts’ refusal to take a test.1 Under imposed 90-day pension The court also license sus- and a for Roberts' fine conviction Wade, his to the Ken- States v. conviction appealed

Roberts and then to County Superior Court nebec appel- Court. Both Maine Judicial judicial adversary initiation of appeal. Following re- late denied courts way normally “by of formal proceedings sentence, imposition mand indictment, in charge, preliminary hearing, Cor- for Writ Habeas a Petition initiated formation, arraignment.” Kirby, States District Court pus in terms, general at 1882. In The Maine state trial the District Maine. right to at point at which the counsel sentence of incarceration court ordered charges” “formal have taches when been proceedings stayed pending the outcome government or when “the has com initiated corpus petition. The. federal on the habeas prosecute.” to v. Bur mitted itself Moran cor- Roberts’ habeas court dismissed district 412, 430-32, 1135, bine, 106 U.S. S.Ct. 475 29, 1993. Roberts petition on October pus (1986); Gouveia, 410 89 L.Ed.2d appeal. this brought then 2298; 189, 104 Kirby, 406 467 S.Ct. 689, “By very its at 1882. S.Ct. II. ANALYSIS terms, ap [the Amendment] Sixth becomes ap- raises two related issues Roberts only government’s plicable role when (1) to Officer Main's refusal peal: whether investigation to from accusation. For shifts attorney call his before to allow Roberts it then that the assistance of one is deciding to take whether blood/alcohol law,’ ... of ... versed the ‘intricacies Sixth Amendment of his denied Roberts prosecution’s to that the case needed assure counsel; right whether Maine’s to meaningful of encounters ‘the crucible adver misleading and in- form ” Moran, testing.’ sarial accurate, constitution- in violation Roberts’ (1986) (quoting v. S.Ct. at 1146 United States Although right process. al due Roberts’ Cronic, 2039, 466 U.S. not right to counsel is Sixth Amendment (1984)). 80 L.Ed.2d case, implicated do find a violation in this we case, present had state officials rights on the Roberts’ brought any charges against formal Rob circumstances of the grounds that all of the driving erts for at the time Roberts to, drunk case, including, the mis- but not limited take the test. The information, refused to fun- leading deprived Roberts of blood/alcohol conceivably first state action that could re damental fairness. charge, filing semble formal the. Right to Counsel A. Sixth Amendment OUI, against complaint criminal Roberts did not occur until after refused to Amendment to the United The Sixth point the test. when that, guarantees all Constitution “[i]n States request to speak Roberts was denied his enjoy prosecutions, the accused shall criminal attorney, government yet his had not ... right have Assistance Coun- Const, OUI, prosecuting him nor committed to amend. VI. sel for his defense.” U.S. government had the shifted its role from that right to at- It axiomatic that the counsel find, investigation to accusation. We adversary only upon “the initiation of taches therefore, right to that Roberts’' counsel had against judicial proceedings” the de- criminal alleged time of the attached viola fendant, right applies to and thereafter rights. tion before, of his Sixth Amendment stages” prosecution, all “critical (6th Smith, McVeigh v. 872 F.2d 725 Cir. during after trial. United States 1989) (finding Supreme reject Gouveia, Court 467 U.S. right (1984); argument ed States v. 81 L.Ed.2d United taking 300, 310-13, prior attaches blood alco Ash, counsel (1973); Nyflot v. Kirby v. test in Minnesota Comm’r hol Illinois, Safety, Public (1972); (1985), which the L.Ed.2d driving driving suspended with a license. offenses drunk substantive raising right an appeal special dismissed Roberts asserts that the cir argument for lack of cumstances of this to counsel substantial case establish a Sixth Coleman, Langelier right Amendment to counsel. question); According federal Roberts, (11th Cir.1988) mandatory sentencing (noting 1510 n. 3 conse F.2d quences to take the yet right to counsel had not attached when misleading combined with the informa suspect was asked to take a blood/alcohol provided by tion regarding Maine test). conse quences that would arise from his refusal take the test and the denial Roberts’ re recognize possibility that the We quest attorney call up clear right might conceivably to counsel attach be misunderstanding, somehow transformed the made, charges fore formal or before normally investigatory testing procedure into arraignment, indictment circum adversarial, “ quasi-prosecutorial, sentenc ‘government stances where the had crossed ing proceeding. Appealing argument' as this constitutionally significant divide from may be, reject we ” must it. Whatever limited adversary.’ fact-finder to United States v. circumstances exist in which Larkin, (7th Cir.1992), 978 F.2d cert. prior charge, counsel attaches to a formal — denied, -, 1323, 113 122 U.S. S.Ct. cannot pres include the circumstances (1993) (quoting L.Ed.2d 709 United States ent waiting case because the were still (7th Lane, 79, v. 804 Ex Rel. Hall F.2d 82 investigation for the outcome of their —either Cir.1986)). circumstances, however, Such from the results of the test or blood/alcohol and, indeed, extremely must limited we from fact of defendant’s refusal many examples. are unable to cite See Lar deciding to the test —before or not whether kin, (citing 978 F.2d 969 Bruce v. Duck bring charges against the defendant. The worth, (7th Cir.1981), 776, 659 F.2d 783 government yet not had crossed the constitu proposition government may investigator tional divide between and accus intentionally delay charges formal for the matter, er. As a threshold right to coun purpose holding lineup pres of outside the yet sel had not attached when Robert’s re counsel). Overall, Supreme ence of Court quest denied, therefore, and, for counsel was on jurisprudence ap the Sixth Amendment further, we admittedly cannot reach the pears to allow for few to the’ exceptions close, question of whether or not Roberts bright-line right rule that the to counsel does decision to take the test in government not attach until the offi initiates stage” prosecution volved a “critical of the proceedings by making charge. cial a formal right which the to have the advice counsel Heinz, 609, States v. United 983 F.2d required. would constitutionally otherwise be (5th Cir.1993) Gouveia, 612-13 (interpreting 187-90, 104 S.Ct. B. Due Process precedent other as establish merit, however, We do find in Roberts’ ing strictly determining formal claim that Main’s actions violated Officer judicial proceedings opposed initiation of process. Roberts’ to due The combina- to a more functional test based whether presents tion of circumstances in this ease government had taken on an adversarial unique situation in which the state Maine stance towards the defendant or whether the requirements failed to meet the of fundamen- government had investigation focussed its tal fairness. defendant); Moran, see also 475 U.S. át (“The implication 1146 clear The Due Process Clause of the Con holding Moulton, [in Maine v. 474 life, prohibits deprivations liberty, stitution 159, 477, U.S. 88 L.Ed.2d 481 property without fairness” “fundamental (1985)], teaching and one that confirms through governmental conduct that offends Gouveia, is that the Sixth Amendment community’s justice, decency sense of right to play. Burbine, counsel does not until after attach fair Moran v. 475 U.S. 412, 432-34, 1135, oí charges.”) (emphasis the initiation 106 S.Ct. formal added). Russell, (1986); v. L.Ed.2d United States 1637, 1643, misleading because there statement was 93 S.Ct. 411 U.S. Larche, consequence failing (1973); Hannah least one additional L.Ed.2d 366 term of incar- consent to a test: 48-hour (1960); California, Rochin told that his L.Ed.2d 1307 was never ceration. Roberts 205, 209-10, test could also in a to take the result Barnett, (1952); States v. L.Ed. 183 two-day jail if he were sentence — denied, (1st Cir.), cert. F.2d driving influence be convicted -, 114 S.Ct. Roberts was informed of alcohol. (1993). concept— is a flexible process” “Due failing comply consequences” of of “the with required the Clause processes “the procedure. a protected respect the termination impor depending upon vary interest will reading of Following Officer Main’s partic and the the interest attached to tance form, “implied consent” Roberts asked to depriva under which ular circumstances deciding attorney before whether or call v. National Ass’n Walters tion occur.” test. Officer not to take the blood/aleohol Survivors, 305, 320, Radiation request, despite appar Main denied this or unrea ent absence inconvenience determining ac whether state The test for delay allowing phone call. If sonable Clause, formal Due Process tion violates the attorney, speak with his allowed to Eldridge, ly set out in Mathews v. informed of the could have been of a decision not submit to (1976), a court to consider: requires clarifying thus the mis the blood/aleohol by the private be affected will leading provided by Maine’s “im information action; (2) government’s the risk of an erro plied attorney form. The could consent” through interest deprivation such neous provided to Roberts at the have also advice probable utili procedure and the the existing only point during determining for procedural safe ty of or substitute additional mandatory con Roberts’ sentence when guards; government’s interest in and two-day sequences of the term incarcera including existing procedure, adhering to the attorney’s tion could still be avoided. burdens that addi fiscal administrative sentencing late advice would come too Id.; Walters, might procedures entail. tional itself, hearing nothing at which time there is 3189; Mackey v. S.Ct. at mitigate attorney or can do to .rebut 2612, 2617, 1, 10, Montrym, 99 jail imposition of the 48-hour term. Roberts (1979); Ap 321 In re Nineteen 61 L.Ed.2d thus had to make a decision with irrevocable peals Arising Dupont Juan Pla Out San consequences after the sentence state (1st Litig., Fire 982 F.2d za Hotel provided him inaccurate with information Cir.1992). expected he to make that with which actions in find that Officer Main’s We this of circum decision. Under combination liberty deprived in a this ease Roberts stances, it is the state to incumbent lacking in fairness and manner fundamental request to call an honor reasonable attor play. sense of fair offensive to the universal Refusing ney. provide simple this safe custody officer took Roberts into guard right process. violated Roberts’ to due and, handcuffed while Roberts was A review the Mathews factors confirms station, him with a choice presented liberty deprived conclusion. The our sentencing consequences that had irrevocable by in this the state’s actions case Roberts’ mandatory period of incarcera involving a two-day jail mandatory from the freedom to take tion. Roberts was asked a blood/al imposed because of the refusal to sentence if he told that refused cohol test and take a test. Roberts’ interest license would blood/aleohol his drivers submit to certainly in freedom from incarceration of his could suspended and the fact be worthy, process protec- of substantial against him at trial. Roberts used Salerno, See, e.g., v. tions. United States had “advised of then informed that he been 739, 750, comply.” This consequences of failure to U.S. (1987); Texas, Addington neously offense, L.Ed.2d 697 v. convicted of an OUI 1804, 1807-09, 60 officer’s greatly conduct increased the risk addition, two-day jail In Maine sentence would im- posed on placed position in a where Roberts as result Roberts he was decision upon misleading made in cooperat- reliance forced make decision between informa- investigators suffering deprivation tion. The erroneous ing thus with mandato- con- attaching sentencing consequences sists ry and irrevocable his sub- a choice that an Cooperation may individual sequent sentencing. in this case have provided made had the state or him her probably would have sealed Roberts’ fate words, accurate information. other but ab- trial it also would have avoided certain information, sent the two-day inaccurate penalties. harsher Roberts thus faced a situ- jail term imposed. have been respects plea ation similar some bar- such, gaining. As Maine’s unique We faced here with a situation procedure implicates Roberts’ to re- sentencing which the consequences of in- fair prosecution ceive treatment dur- imposed carceration are not so much for the plea bargaining. Santobello New substantive criminal conduct itself but for the York, 498- separate volitional act cooper- (1971); Brady L.Ed.2d United ate with investigation of that conduct.' States, such, deprivation liberty As an erroneous (1970); can result from a behavior under Bouthot, (1st States v. F.2d circumstances, rather dubious if not false Cir.1989). pretenses, ease, created the state. In this might cooperate have chosen to Moreover, mandatory sentencing avoid thus term of incarcera- consequences stemming from Roberts’ refus tion if he speak had been allowed to with his injects al to take the im lawyer and correct the inaccurate informa- portant procedure of sentencing elements tion he received. Once Roberts’ decision was police investigation suspected into the of a made, however, nothing there was the attor- OUI offense. Because Roberts can do noth ney judge could do at to reme- ing to imposition contest the aof 48-hour dy Roberts’ tainted decision. sentencing term of incarceration at the hear coin, theOn other side of the there is much itself, ing point calculating the critical a that allowing attorney Roberts to call his key portion essentially of Roberts’ sentence safeguard against could do to type of requested occurs at time Roberts is deprivation erroneous liberty at risk in take the test. this ease blood/alcohol Plainly simply, this case. and Roberts’ attor- implicates in Roberts’ interest fair sentenc ney could have informed Roberts the addi- procedures. Florida, ing Gardner v. sentencing tional refusing correcting take the thus blood/alcohol (1977); Doe, L.Ed.2d 393 United States misleading the state’s information. The at- (9th Cir.1980). 920, 655 F.2d 927-28 We torney also could counsel Roberts on the find, therefore, that Maine’s actions towards advisability cooperating to avoid the man- liberty implicate important Roberts interests datory two-day sentence. is the This deserving process protec of substantial due value; point any at which such counsel has tion. once the decision or whether not to submit to Turning to the second consideration under made, cast, nothing the test is die and Mathews, risk deprivation of erroneous attorney can do at will miti- liberty probable interest and the value gate two-day the effect of the sentence. procedural safeguard, of an additional we strong process justification find a present presents situation thus allowing attorney. analogous expressed by contact his Al- concerns to those though Officer Main’s refusal many right to allow Rob- Court in of its to coun Wade, to call attorney significantly erts his did not sel cases. See increase the risk that Roberts would be (affording erro- to counsel at procedure arranging a proceedings than medical stages pre-trial critical suspect’s with the doctor. might well settle the ac “where the results the trial itself a and reduce cused’s fate the transient nature of the evidence Given (cid:127) Ash, formality”); mere is, the driving in drunk cases—that blood/al- (noting were times that “there police in cohol level blood—the trial would cure one- subsequent when the certainly proceed implied con- may with the prosecuting au between sided confrontation delay procedure if a would affect the sent defendant,” the uncounseled thorities and test results otherwise interfere with the attorney accept an rendering the absence procedure. testing refuse to able, other times when but that there were for a who is unable reach an wait required attorney because there was an attorney period a reasonable of time within tri to cure defects at “opportunity such no time-consuming or refuse to undertake Moulton, al”); 474 U.S. Maine v. attorney an efforts to contact burdensome (1985); see 106 S.Ct. immediately who is not available. There is Rhay, Mempa v. 389 U.S. also indication, however, that such was the (1967) (review Main testified that he did case here. Officer Burke, ing holding in Townsend attorney not allow Roberts to call because (1948), 92 L.Ed. 1690 uncooperative shouting Roberts was ob- during of counsel sentenc the absence where We see no relevance of this fact to scenities. assumptions about ing with false combined refusing to allow Rob- state interest criminal record was found to the defendant’s phone deciding to make call erts before process, of due deprive the defendant take the test. whether or “ noting ‘might in that that the counsel case significant find no state inter- We therefore sentence, changed the but he could not have to allow Roberts to est call his steps to 'see that conviction have taken attorney justify that would what we consider predicated misin were not and sentence process. to be denial of due records, misreading of court formation or clarify, To do not discount Maine’s in- we requirement play fair which absence of imposing implied proce- consent terest ”) prisoner.’ (quot from this counsel withheld voluntary testing encourage dure Townsend, drivers, any quarrel drunk nor do we have 1255). conclude that Maine’s therefore We impose penal- with Maine’s desire harsher procedure presents a implied consent sub cooperate. We see ties those deprivation of liber stantial risk erroneous interest, however, very denying little allowing call ty and Roberts to his attor request at the station to reasonable such, and, ney likely to the risk alleviate attorney, where that call could serve call safeguard. is a valuable misleading regarding up to clear information in Finally, we consider the state’s interest testing procedure provided the the state. attorney, to his refusing to allow Roberts call Furthermore, find, do not in any and fiscal bur- we this including administrative least, suspected at that a drunk driver phone a call would entail. There case dens such process that a to contact an attor nothing in the record indicate al- has due is lawyer ney imposes mandatory lowing from the whenever the state Roberts call his any sentencing consequences the refusal of impose on the police station would suspect On the the to take a test. meaningful burden whatsoever. con- blood/alcohol Rather, suspect suspected that where the trary, drunk we find Maine law allows physician request to makes a to contact his or request their own reasonable drivers to attorney reasonably attorney if the can correct test her conduct the blood/alcohol information, misleading provided by Maine thus the state 29 M.R.S.A. available. point suspect the must make a already contemplates making ac- at a when reasonable . driving suspects. that is crucial for his or her subse for drunk decision commodations attorney requires quent sentencing, process that Allowing simple phone call to an is a suspect’s implied request be honored. much intrusive consent. the less substantially against suspect dif are confronted with a evidence that We trial does than suspect’s in this case the one that implicate ferent situation Fifth Amendment in Supreme considered South Da Court right against self-incrimination. Id. at 558- Neville, 64,103 kota v. suspect S.Ct. at 919-23. in Neville, In the Su protectable had liberty Neville no preme Court held that the Due Process beyond general right trial, a fair a Clause was not violated when officer right which faced little risk of erroneous suspected warn a that failed to drunk driver deprivation in that case. Neville did not his refusal to submit to a blood-alcohol mandatory involve a sentence that risked against him at could be used trial. The an depriving important individual lib- Court that driv reasoned because drunk erty incarceration, interest of freedom from specifically er in case warned that that was liberty interest that involved here. his to submit to the test result would Second, consequence about which license, suspension in his the driver Maine present failed warn Roberts that his not a har knew refusal “was ‘safe irrebuttable, case making is irrevocable and bor,’ consequences.” of adverse Id. at free suggested procedural safeguard per-— Court 103 S.Ct. at 924. The also noted attorney mission call pro- —crucial say that it was “unrealistic to that warn tecting liberty Roberts’ interest. the Ne- ings given implicitly suspect here assure a case, however, ville consequences in- that no other than men those evidentiary disadvantage volved an that could occur.” Id.2 tioned will rebutted, mitigated explained otherwise Neville, present Unlike case is not a test, counsel trial. The blood/aleohol simple involving “failure to warn” situation therefore, only was not the point Neville withholding state’s of information that was safeguard which a would have required Rather, provide. never this is a had value. case in incar- which sentence of Third, there is an additional element suspect’s ceration attached to a decision to case, Neville, unfairness this not found in suspect take a where the misleading due to nature the instruc- given misleading information that indicates case, given tions In the Roberts. Neville exists; further, no such sentence where Supreme specifically noted that permission suspect speak that is denied given implicit no assurances attorney up who could have cleared that being he was warned all the conse- pro- misunderstanding and who could have quences testing, to submit to id. vided point advice where the 566,103 case, S.Ct. at whereas this sentencing consequences could be avoided. told he had been advised of Court did not address the due consequences,” incorrectly implying “the process implications of these circumstances. consequences. there were additional As a Instead, quite Neville dealt with different result, greater Roberts faced risk of erro- implications issue: the due of a liberty neous deprivation of than the sus- state’s failure to warn about use at trial pect in Neville. of a refusal to take a blood/alcohol test. The differences between the two eases process may require Due warn are stark. ings refusing of the of to take a test,

First, may require and not a Neville considered an of interest magnitude liberty right suspects facing much full to for the lower than Roberts’ counsel testing. in decision or not to to freedom from incarceration. As whether submit found, case, Supreme the Court the use of the fact Under the circumstances of this howev er, suspect play that a to decency, refused submit to a test as as a matter of fair and due given pect 2. The in a instructions to the defendant Ne- that if he refused to take blood/aleohol language resembling suspended. suspect ville contained no the mis- his license could The you leading suspect merely in statement this case that the asked: "Do then understand Neville, 2, consequences.” you?” had been "advised of the what U.S. at n. I told 459 555 merely instructions in Neville informed the sus- 103 S.Ct. 918 n. 1296 process of implicate the due clause given a not require that Roberts be

process does Maine, Constitution,” v. No. 93- attorney Roberts to call his opportunity reasonable (D.Me. 1993) 0154-B, 24, Sept. slip op. at 3 deciding whether to be tested. on before findings (magistrate-judge’s proposed and (D.Me. recommendation), aff'd, slip op. at 1 CONCLUSION 1993) added). 27, (emphasis Oct. Conse reasons, foregoing we find that the For the quently, neither court reached Roberts’ due jail imposed on mandatory sentence 48-hour process claim. 1312-B(2)(B)(4) §to vio- pursuant in The infirmities conclusion in process. premised The Law Court its lates due Neville, surrounding Roberts’ arrest did procedures large part on South Dakota v. 916, 553, not, however, underlying convictions taint his 74 L.Ed.2d 748 (“the (1983). driving Roberts, a driving and sus- 609 A.2d at drunk See for judgment Accordingly, allowing pended reasoned that [Neville] license. Court is reversed and case to to submit to test- the district court choose whether of with in- legislative grace’ district court ‘a remanded is matter bestowed is thus, corpus by subject legislature to issue a writ habeas structions state However, Maine to upon protections.”). State to constitutional failure jail 8-hour sentence by vacate the on the Law Court the statement relied 1312-B(2)(B)(4) § Fifth self- imposed pursuant related Neville’s Amendment hearing claim, accord Roberts incrimination the due sentence is mandated. p. no minimum See 1297. The Neville which claim. infra explicitly qualified so Court its statement as CYR, (concurring). penalties Judge to obviate intimation that Circuit refusing testing to submit to chemical to concur Although pleased I am beyond scope Due Process Clause. majority ably crafted result reached Neville, pro- opinion, separately I write (“Such penalty to take a blood- claim. cess legitimate, unquestionably alcohol test is as- Supreme appeal, the Maine Judi On direct procedural suming appropriate safe- (“Law Court”), citing State v. cial Court added).4 guards.”) (emphasis Plante, 991, (pre-Ne- A.2d ), right underpinnings for the erroneously concluded that “the constitutional ville pronouncements consequences of more recent warning procedures stem from not one of constitutional a chemical Roberts, California, v. 609 A.2d Schmerber v. State dimensions.” (Me.1992).3 Ny- 16 L.Ed.2d 908 See The district court below S.Ct. Safety, Pub. ruling “requirement that a v. Minnesota Comm’r likewise erred flot 586, 586-88, 1027-29, 106 to a test does U.S. that a driver 4.Indeed, itself, the Plante case which the we accord de novo 3.Under 28 U.S.C. Roberts, directly A.2d rulings on constitu- Law Court relied review state court federal Maine, issues, claim as well. v. 962 F.2d involved self-incrimination tional Wellman Plante, context, (1st Cir.1992), questions as 417 A.2d at 994. Viewed in as well to mixed law, "right ("Federal suspect's may give court differ- the statement OUI fact and id. testing "simply grace matter of be- weight the state court refuse" ent facts found Neville, light Legislature,” ... different conclusion in stowed reach Mata, merely standard”) legal (quoting S.Ct. at was meant Sumner 591, 597, testing, emphasize right unlike refuse (1982)). underlying warnings, Miranda to silence See also Cleveland Bd. Loudermill, not of dimension.” Id. “constitutional Educ. (1985) ("minimum eroded the "constitutional Neville in no sense procedur- requirements of federal dimension” inherent in traditional are matter law, safeguards attending deprivations protected by they that the al of are not diminished fact 560, liberty procedures at 920-21. may specified own that interests. Id. at 103 S.Ct. State have its 17-19, 1, Mackey Montrym, may adequate determining pre- 443 U.S. 99 for v. deem 2612, 2620-22, (1979). action.”). 61 S.Ct. L.Ed.2d 321 to adverse official conditions

1297 (1984) (summary (1966), for Supreme 567 dismissal L.Ed.2d question) (opinion want substantial federal Court nevertheless found no “misleading im- White, J., dissenting summary from dis- plicit assurances” that the refusal to be test- missal); Neville, 916; 553, 459 U.S. 103 S.Ct. evidence, ed would not be introduced since Mackey Montrym, 1, v. 443 99 see also U.S. warning “the that could [Neville] lose his 2612, (1979); 321 v. S.Ct. 61 L.Ed.2d Dixon driver’s license made it clear that Love, 105, 1723, 431 U.S. 97 52 L.Ed.2d S.Ct. harbor,’ was not a ‘safe free (1977); Burson, v. 402 Bell U.S. Neville, consequences.” adverse at U.S. 1586, 1589, (1971); S.Ct. 29 L.Ed.2d 565-66, 103 at 923-24. Neville thus Abram, Breithaupt v. 77 S.Ct. upheld power penalize State 408, 1 L.Ed.2d 448 Schmerber held refusals to submit testing, to chemical but against privilege the Fifth Amendment self- explicitly its conditioned exercise on the inapplicable incrimination because blood-alco- availability procedural of “appropriate pro- (“chemical testing testing”), level hol albeit tections.” Id. seizure, Fourth Amendment search and sim- ply yields physical real evidence as distin- process analysis ap guished from “testimonial” evidence. propriate present to the context contrasts Schmerber, 384 U.S. at 86 S.Ct. at 1832- starkly with the substantive due Accordingly, State non- force Neville, analysis only where the unwarned consenting suspect to submit to a reasonable consequence adverse was that the State ulti circumstances, exigent chemical test under mately might be request allowed to the trier warrant, provided probable without a there fact, trial, at that infer the refusal to be “operating cause arrest for tested constituted evidence of his conscious (“OUI”). the influence” Id. (intoxication). guilt ness See S.D.Codified 86 S.Ct. at 1833-37. And since alcohol and (1980) (“such Laws 32-23-10.1. refusal drugs inexorably are evanescent substances trial.) may be admissible” in evidence at body, “exigent metabolized cir- setting, such a a defendant would be afforded requirement invariably cumstances” almost full panoply procedural protections urgent met need test before First, available at trial. the State’s eviden- .770-71, warrant can be obtained. Id. at tiary proffer of the refusal be tested would 1835-36. subject objection by defendant; Neville, later, in Years example, grounds that it not did evince rejected two distinct constitutional chal suspect’s guilt consciousness of but mere lenges to an consent” statute which legal rights. confusion as to his See Fed. empowered South Dakota to introduce into Second, 401, 403. if R.Evid. the refusal were submit, evidence OUI refusal to evidence, admitted in the defendant would be First, testing. to chemical the Court held allowed to introduce rebut evidence to right against Fifth Amendment self- guilt” Finally, “consciousness inference. implicated incrimination never because trier fact permitted, would be impermissibly the State did not coerce the required, could not be see Carella Califor Neville, refusal. nia, 2419, 2420, U.S. Second, 921-23. and more to the curiam); (per 105 L.Ed.2d Sand present point, rejected the Court Neville’s Montana, stram v. 99 S.Ct. process claim premised substantive due (1979), infer Ohio, Doyle v. guilt,” but 564-66,“consciousness consider (1976). Neville, it, evidence, along with all other in determin though S.Ct. at 922-24. Even Neville guilty beyond the defendant was whether warned his refusal to submit to Neville, reasonable doubt. testing against could be offered him consequence inexorably trial, unwarned flowed notwithstanding the fact that the from the All be tested. conven police had him that advised his silence could him, procedures against barring tional trial and rebut be used see Miranda Arizona, available, ting the refusal evidence remained by depriving suspects against it the teenth Amendment

including to defend in protected liberty remaining their guilt. issue incarceration, affording without free from ei hand, meaningful proce On the other adequate predeprivation notice or mean ther against to defend for Roberts dure remained process. Louder ingful postdeprivation See upon con mandated term of confinement mill, 470 U.S. 105 S.Ct. consequence of the as a viction for OUI ("While con legislature elect not to Mempa refusal to be tested. See unwarned interest], may constitutionally it [an fer not 128, 133-34, Rhay, 88 S.Ct. v. 389 U.S. interest, deprivation an authorize such (1967) 256-57, (sentencing is L.Ed.2d 336 conferred, proce appropriate without once process); in see also stage critical criminal safeguards.”) dural Euclid, 544, 546, City 402 U.S. v. Palmer 1564-65, L.Ed.2d 98 91 S.Ct. present majority opinion case States, curiam); Burns (per v. United cf. Doyle-based essentially relies substan Doyle, process analysis, see tive due (1991) (even sentencing where 2244-45, 617-19, concluding S.Ct. sentencing dis explicit with court vested fundamentally unfair for the State that it was cretion, upward sponte departure sua —ab subject Roberts to an unwarned of Maine prior notice to defendant —raises serious sent mandatory minimum term confinement concerns). process due supra pp. tested. See 1291- proce “implied the Maine consent” Under Although agreement 92. I am in substantial dure, §§ 29 M.R.S.A. 1312-B see process analysis, with its substantive due 1312”), (collectively: “section (Supp.1994) warnings given particularly that to be never warned that refusal seriously implicit “misleading assur included mandatory minimum sen entails a tested by subject ances” —a neither reached upon conviction for OUI. No matter tence by Law nor discussed the district Court suspect’s rea compelling innocent how clear to me that a court —it is less substan tested, see, e.g., son for to be Jam process analysis appropriate fol tive due Jensen, 221 Neb. 377 N.W.2d ros —Oliver, U.S. -, Albright lowing (1985), impose must sentencing court (1994). confinement, re a minimum term of without gard trier of fact or the to whether either the though Even the Fourteenth Amendment judge slightest “con ascribes procedural both substantive and due affords guilt” refusal sciousness process protections, cau- process terms be tested. due Albright particular tioned in that “where “implied proce consent” Maine’s standard provides explicit textual amendment essentially process up dure differs from the protection against source constitutional Neville, respect particularly held behavior, government particular sort of adequate no predeprivation absence of Amendment, generalized the more notion not meaningful opportunity to be tice and a process guide due must be the of substantive v. Loud heard. Cleveland Bd. Educ. See at-, analyzing these claims.” Id. ermill, 542, 105 S.Ct. context, present at 813. In there- L.Ed.2d fore, Albright appears require at least acquiesce in an OUI initial resort to due State need testing having application jurisprudence particular suspect’s refusal to submit Schmerber, Mackey, proceedings. “implied similar consent” statute. (applying proce- But at 2617-22 at 1835-36. suspen- process analysis to suspects it to refuse chem- dural due license opts once allow testing, may disregard procedural it sion for submit to chemical test- ical ing).5 process constraints under Four- Neville, otherwise, however, specifically absent in Were it should be noted factor found is, U.S. at 922-23. That fairness” disserved in "fundamental advisory, presence important whether of an Maine instant case regimen identifying failing for after to The cornerstone OUI submit to chemical test- to particular process appropriate depriva- ing, yet inexplicably the withholds from its stan- life, liberty “implied of property advisory any tions or is limned dard consent” mention Eldridge, mandatory Mathews minimum of term confine- (1976). attending 47 L.Ed.2d 18 ment the refusal to submit. See p. supra 1289.6 specific of Identification the dictates process generally requires consideration advisory contemplates The standard that First, private three distinct factors: the police provide explicit the warnings two be- by will that be affected the official requesting suspect fore an to OUI submit to action; second, the risk of an erroneous First, testing. chemical the suspect is to be deprivation through of such interest the informed that refusal to be tested will result used, value, if procedures probable and the suspension administrative motor ve- any, procedural of additional or substitute operating privileges hicle for not less than six safeguards; finally, government’s the years. months nor more than three Id. interest, including the function involved 1312(1) (first offense). Second, § the and the fiscal and administrative burdens “should also inform the [suspect] that procedural that additional or substitute failure to comply duty with the a to submit to requirement would entail. chemical test admissible in evidence” at a Id. at 96 S.Ct. at 903. subsequent Although trial. Id. OUI a fail- 1312-B(2)(B)(4) (1987), suspect

Under section a to ure so inform the does not render person id., any inadmissible, convicted as a first-time OUI offender chemical-test result see two-day must serve not less a than term no sanction omitted from the standard advi- sory imposed accused, confinement if he can upon except refused submit chemi- be testing. cal mandatory Maine alone a mini- mandates minimum sentence at issue upon 1312(1), (8).7 mum term appeal: (2), of confinement conviction for in this See id. inadvertence, choice.”) design assuredly penalties making or (emphasis has that effect for "subtly added). coerc[ing] choosing [suspects] into [viz., option refusal to be tested] that State compel, offering no ha[s] rather than required to read a standard Roberts, added). (emphasis true choice.” Id. Roberts, advisory suspect, to the OUI see Cf. Neville, ("As warnings at n. 609 A.2d 703 more, A.2d at at see id. 704. The provided designed case this were "trick" Law Court concluded that is “without authori test, using defendant into then ty expand warning encompass the full added). trial.”) against (emphasis him at id., range potential penalties,” and we are excepted As the such subtle coer statute, interpretation bound its of the Maine sweep ruling rejecting from cion of its Ne- Dubois, (1st see F.3d Ortiz n. against ville's Fifth Amendment claim self-in - Cir.1994), denied, -, cert. U.S. crimination, Neville, at U.S. the omis weigh heavily against this too factor would from, mandatory sion of the minimum sentence advisory any the Maine under advisory plainly originates the standard in sec process analysis may substantive due which re tion 1312. open following Albright. Albright,- main at -, (Souter, 114 S.Ct. at 820-21 1312(1) 7. Section states: J., (due concurring) pro clause affords directly particu tections not addressed more any specified given, Before the law provision). lar constitutional shall, person enforcement officer inform that, probable as to whom there is cause if Under either or substantive due however, person comply process analysis, duty may fails to with the the State required deprive person complete liberty submit to and chemi- the core interest in incarceration, remaining cal law free from without af tests at direction of the enforce- officer, fording adequate person's either advance notice or mean ment that license ... will ingful post-refusal process, by imposing suspended for a 6 months and man minimum of datory long years. minimum term of confinement as officer electing accept person unwarned that a state- should also inform the fail- option testing. comply duty tendered Burns, to refuse ure to Cf. 2187; (sic) chemical tests in evidence is admissible Neville, (noting against person operating 103 S.Ct. at trial legitimate intoxicating liquor it is for the State to influence of [the] "offer option drugs. with the attendant states, term only ty, alone a minimum forty-nine let Among the other confinement, may the refusal. attend any sanction impose nonadministrative four states, testing. Two refusing chemical adequate particular that con notice Absent Jersey, prescribe man York and New New criminalized, may person has duct been following adju datory minimum civil fines punished for it. See Bouie v. be convicted or proceeding, separate based in a dication Columbia, 347, 361-63, 84 City 378 U.S. suspect showing that independent (1964) 1697, 12 L.Ed.2d 894 S.Ct. testing. chemical See to submit to failed (failure to that statute criminal afford notice 1194(2)(c) (1994) § Traf.Law N.Y.Veh. & Georgia, particular activity); Wright v. ized proceeding); (separate administrative 1240, 1246, 284, 293, 10 373 U.S. (1994) (separate § 39:4-50.4a N.J.Stat.Ann. (1963) Lambert v. Cali 349 (same); L.Ed.2d v. Di judicial See also State proceeding). 227, 240, 242, 225, fornia, 2 355 U.S. Somma, 375, 621 A.2d N.J.Super. 55 (1957) (“Notice required is be Alaska, states, Three (App.Div.1993).8 disturbed, are before property interests fore Nebraska, have made it a Minnesota made, penalties before assessments are submit to refuse to separate criminal offense assessed.”). rule, course, general As a suspect testing, only chemical but to if publication a criminal statute affords ade request to the time so informed at quate public large. notice to Cheek v. Ak.Stat.Ann. was made. See submit 199, States, S.Ct. (1994) (“after 28.35.032(a) being § advised (“Based (1991) 112 L.Ed.2d crime”); is a Minn.Stat. ... that the refusal notion that the law is definite and know (“At 169.123(b) (1994) § time the test is able, presumed every that the common law person shall be informed ... requested, the law.”). course, And, of person knew crime.); to take a test is Neb. that refusal every person pre is common-law rule —that (1993) 60-6,197(10) (“Any person § Rev.Stat. only applies in sumed to know the law—not to a ... chemical required to submit who cases, v. Internation criminal United States (a) ... shall be advised of blood test Corp., em. al & Ch Mins. submit to such consequences of Jamros, ”); see also tests.... (1970), prompted in the but has little concern (holding that defendant cannot N.W.2d usual course. that convicted unless forewarned refusal be perverted, rule The common-law would crime). separate submit is however, it used to shield from consti- were then, challenge deceptive advisory sum, the “im- tutional State unlike section state, directly any is delivered individual plied procedure in other any suspect implicitly con- to submit to undermines criminalizes neither presumptively testing contemplates that structive notice afforded nor Ohio, publication. Raley v. penal- a criminal suspect forewarned that person may be excluded as evidence subsection the failure No test results any any proceeding duty before administrative comply to the with the chemi- admissible, this as a result of the officer or court of State except cal tests shall not be when officer to failure of the law enforcement pursuant required a test was subsection only prerequisite. comply ef- with this 11, paragraph [testing after an accident D comply the failure the officer fects of death], involving provided prerequisite are as in sub- with this 8. sections law, mandatory $250 Jersey New Under 1312(2) part: states in relevant Section following separate' imposed fine to be civil if, Any suspension in effect shall be removed suspect judicial proceeding, but if the hearing, per- it is determined that after testing. prior N.J.Stat. so informed test would son who failed to submit law, § York a man- Ann. 39:4-50.2. Under New failed to submit but for the failure have imposed, datory fine to be $250 minimum give officer to either the law enforcement following separate proceeding, warnings required by subsec- administrative or both suspect provided tion 1. was forewarned that refusal 1312(8) part: relevant Section states in suspension. to be tested result a license If give officer ... fails to the law enforcement 1194(2)(c). & Traf.Law N.Y.V.eh. warnings required under either of the witnesses, to the advice “the fact remains (1959); Wisconsin, inquiry see also [it that at was] the voice Griffin 875 n. 3169 n. presently speaking most appel- State to the Lambert, (citing lants.”) added); L.Ed.2d (emphasis supra see also 242) (“If regula U.S. at Implicit notes 8 & 9. such unrealistic question tion in a standard of established premise assessment is the con probationer conduct to which the had to custody totally access counsel and —denied pain penalty e.g. form a on on restriction dependent upon integrity the State for — the his court movements —the state could implied advisory the pre- consent be —should constitutionally adopt unnatural an in so merely sumed to have had constructive terpretation regula language that the notice, but requisite knowledge actual notice.”) provide adequate to tion would fail procedural provisions “implied of the con- added). view, Accordingly, (emphasis my in him, might sent” statute that alone alert but by in publication constructive notice cannot 13, see note to the criminal sanction infra procedural process challenge sulate from due testing. attendant a refusal to “im deceptive assurances the standard supra See note 5. plied form consent” instructs the “implied directly suspect advisory, The standard communicate to the immedi consent” naturally ately prior interpreted, Griffin, to the see decision refuse to submit 483 U.S. at 875, 3, testing. Raley, 3169, 3, to chemical 360 at n. 107 realistically See S.Ct. at n. 438-39, context, Neville, S.Ct. at 566, 79 1266-67. and in see at 459 U.S. 924, 103 S.Ct. at undermines whatever con- Neville, Supreme clear in Court made might normally structive presumed notice be 566, 924, at 103 that courts publication from mere of section 1312. See should realistic in be their assessment of 438-39, Raley, 360 at at 79 S.Ct. 1266- allegedly misleading which context in 67.10 The Raley Court concluded that suspect. assurances communicated to the certain witnesses had been convicted without It would be unrealistic extreme process exercising privilege due “for a which suggest suspect custody, a that whose clearly the State had told was avail- [them] knowledge directly actual from the comes 438, (em- able. ...” Id. at 79 1266 S.Ct. at prescribed by law, in the form none- added). phasis Court even reversed the theless be on notice must deemed that witness, Brown, police advisory incorrectly conviction another who states the actual existed, that refusing privilege to be tested.9 See was never advised Raley, attempts U.S. at 1266- but privilege S.Ct. at whose assert had gave 67 (Although by been Commission erroneous facilitated the Commission.11 Id. at compelling public normally immunity upon 9. A -warrants ferred automatic transactional invoking presumption testimony. of con- common-law witnesses return for their Id. at publication; quite 431, structive based sim- notice on (quoting 79 S.Ct. at Rev.Code Ohio ply, practicable no 101.44). there is alternative. See Inter- After the witnesses were convicted of 563, Corp., national & Mins. Chem. U.S. at contempt Legislature criminal of the Ohio ("The principle ignorance 91 S.Ct. at 1701 that questions put by to answer its Commis applies .law law is defense whether the sion, 432, 1263, id. at S.Ct. at duly promulgated published be a statute or a States set aside their convictions regulation.”) only purpose But where the served as violative of the Due Process Clause of the by seriously presumption perpetuate is to 437, Fourteenth Id. at 79 S.Ct. at Amendment. "implied advisory flawed consent” that is inher- 1265-66. ently counterproductive to the unfair interest, any legitimate process State due must permitted 11.Significantly, the Commission pp. be first See served. 1303-05. infra Brown utilize a "shorthand” method for claiming privilege, id. 360 U.S. at Raley, 10. certain were witnesses advised ("the Commission, [as at Chairman's concern the Ohio Un-American Activities asserting privilege] is inex- whether Brown was Legislature, they creature the Ohio that were plicable he other basis than that deemed privilege against entitled to assert state-created privilege inquiry, at Raley, available U.S. at self-incrimination. impres- advisory to create S.Ct. at 1259-60. The Commission statements would tend such inaccurate, however, appearing inquiry”), con- one as an Ohio statute sion in without Neville, concern mean- central constitutional 469 U.S. See Manzo, (leaving open Armstrong ingful process. v. 103 S.Ct. “unfairly might the State possibility that 380 U.S. 85 S.Ct. “implicit promise”); (1965) (due person trick” process clause envi- Louisiana, 659, 571, 85 Cox v. “at a sions due accorded cf. (1965) (vacat- meaningful meaningful time and in a man- convictions, as violative ner”); Raley, 360 had grounds that defendants process, on 1266; Cardiff, United States cf. by police picketing officials been advised L.Ed. site). permitted at arrest (“We taking cannot sanction a man Similarly, grant permission the standard the heels for conveys not advisory challenged by Roberts apparently gave which this Act its face merely message,” see United States “mixed him the to withhold. That would (1st Cir.1991), Smith, 940 F.2d making and ef- an act criminal without fair Philadelphia likely a one to befuddle notice.”) but (overturning criminal convic- fective police the to ad- lawyer. requires itWhile refusing government to tion for admittance duty has to suspect the he the vise that regulatory provision inspector in reliance on requires the testing, it also that submit to refuse).12 appeared to that confer not to suspect told that he elect be “implied Although the consent” standard subject only testing, to certain (license advisories on the administrative sus- evidentiary consequences. administrative (admission evidentiary of test pension) and that includ- Although it conceivable “lesser is refusal) refusing testing for afford sanctions refusing testing might be for ed” sanctions harbor”, a fair that refusal is “not safe notice har- encompassed within Neville’s “no safe Neville, U.S. at at Neville, rationale, at 565- see U.S. bor” Neville does not insulate from constitutional at Maine’s standard challenge state-prescribed that ac- advisories advisory only salvaged on coun- the could be tively instigate the inter- natural realistic theory lesser that notice the terintuitive pretation no serious than the that sanction more encompass sanction be deemed should sus- con- the warned sanctions will attach to the greater severity terms —both See, abandoning thereby pect’s testing.13 to submit to refusal stitutional dimension — invalid, advisory “implied was at consent” informing 431-32, that claim id. 13. The standard him the suspects deceptive presents with in two a choice S.Ct. at 1262-63. First, suspect respects. in- vital the is never serious, unmitigable, and formed of the most § that was not 12. The Law Court observed irremediable sanction to be tested. for designed test- to be to trick Roberts into Second, testing were State to choose force . Neville, Roberts, 1, ("As n. ed. 609 A.2d at refusal, notwithstanding upon suspect it warnings provided case were [Roberts’] "option” is far from clear that the of refusal designed into refus- to "trick” defendant suspect anything than a would avail other ing using against a refusal him then mandatory Compare Me. minimum sentence. clear, trial.”) Supreme case law makes § tit. Me.Rev. Rev.Stat.Ann. however, proce- where "established state that an 1312(2) (Supp.1985-86). Stat.Ann. tit. person protected liberty deprives a dure” a safeguards, appropriate a viola- Smith, interest without Unlike the defendant in 940 F.2d at 715 process procedural See Lo- claim), tion of due obtains. entrapment-by-estoppel (rejecting there is Co., gan v. Zimmerman Brush U.S. suggestion knowledge any no that Roberts had (1982); see option tendered the arrest- that "no-test” Raley, mandatory also ing punishable by term officer ("While suggestion is no that the Commis- there court reasoned that of confinement. Smith appellants, ... alleged sion had intent deceive message” “mixed from officer judgment Supreme reasonably to sustain the Ohio defen- [the "could not have invited had Court on such basis after Commission ...” reliance because was never dant's] did would be to sanction the most that his acted as it claimed that the officer informed Smith entrapment by present' the State— sort conduct was lawful. Id. at 715. In the case, however, indefensible convicting exercising privilege deceptive advi- a citizen for reliance sory plainly The alternative clearly had told was avail- reasonable. which the State him him.”) would be either that information able to conclusion Raley, 1259- e.g., meaningful post- 79 S.Ct. at at 1191. As there Furthermore, by instructing opportunity impo- heard on implicit option “no-test” with the bait the mandatory sition minimum sentence consequences” refus assurance that “the suggestion section and no testing in na are noncriminal contemplated the state court ture, supra advisory p. see standard two-day term of confinement irrespective of suited to even most seems well snare imposed the mandated minimum pursuant to all, rarely experi wary suspect. After in the 1312-B(2)(B)(4), I section can conclude courts, citizens, ordinary ence of let alone accorded Roberts violated law enforcement officers cast as exclusive pro- fundamental notions suspects concerning advisors custodial cess.15 option perform im state-tendered Finally, analyses contemplated plied duty, and then to warn indi instructed Mathews, Court in suspects vidual of the noneriminal sanctions 903, clearly ap- indicate that all abjuring duty, mentioning their without propriate process can accorded under sec- consequences. the criminal Under no natu simply by adding tion 1312 a few words to interpretation advisory ral of the standard advisory. the standard say it fair that a mean afforded ingful pre-refusal notice of the (i) Raley,

minimum sentence.14 Private Interest 1266-67; 79 S.Ct. at Reich v. cf. liberty core interest Roberts asserts — Collins, U.S. -, -, 115 S.Ct. remaining in free from incarceration is enti (1994) 547, 550-51, 130 (denial L.Ed.2d procedural process full protection. tled to due statute, process procedural due results where Roth, Regents Board read, naturally allowed citizen be choice 571-72, 92 S.Ct. predeprivation postdeprivation tween or chal (1972); Bouie, 84 S.Ct. assessment, lenge supreme to tax but state (overturning criminal conviction ob postdeprivation court disallowed after review through procedural tained viola prepay citizen had elected to tax assess tion); Wright, 373 at S.Ct. at U.S. ment). (same). 1242-43 procedural safeguard A coordinate any the Process Due Clause dictates that (ii) Deprivation The Risk of Erroneous opportunity provided shall be heard be “at meaningful meaningful deprivation in a man- The risk that an erroneous time and Armstrong, roughly ner.” U.S. at will liberty 85 S.Ct. occur is commensurate provided actually suspect underlying punishment the at the is scene as First, for the OUI offense. immaterial, id., mandatory but see no- or constructive the was not minimum sentence statutory language trumps by tice of the preordained by the knowl- the conviction but the OUI edge actually acquired by suspect the testing from unwarned refusal to submit to in the Raley, officer at the scene. But see Although following the arrest. it is moments at conviction, U.S. at 79 S.Ct. 1266-67. preconditioned on OUI all mean- an part sentencing ingful discretion on the of the Moreover, lenity, any 14. trader the ambi- consequence rule an court is withdrawn as unwarned guity "implied advisory in standard consent” defendant's noncriminal refusal to submit resolved Second, circumstances, must be favor the accused. See in testing. mitigating Kozminski, United States in relation to refusal to be or the either tested 108 S.Ct. offense, underlying of the can enable commission purposes lenity (identifying underlying rule as: mandatory below mini- the court to sentence promotion subject of fair "to Third, notice those statutory description of the mum. laws, minimiz[ing] selec- criminal risk of mandatory minimum sentence for test- enforcement, , arbitrary tive and main- ... factor," B(2) "aggravating see 1312— —as proper legisla- taining] the [the balance between ("refusal to submit to a chemical test shall in ture], courts_”). prosecutors and factor”) every aggravating case be itself a —is misleading reality euphemism'for what is in plausible court suggest, conclusive mandate which the It is neither nor discerni- record, impose required merely" mandatory ble mini- to consider but to from imposed simply regard any mitigating mum term of circumstance. confinement without full, fair, timely conse- notice relevant the unwarned with the relevance - consequences. test- quence options to the decision refuse bears their ' of con- ing. term The unwarned (iii) Governmental Interests consequence— most finement —the serious surely “no-test” great relevance bears Lastly, governmental at interests decision; presumptively determinative even stake, and the administrative fiscal bur- present in the circumstances. relevance additional dens attendant to the

Significant, risks attach safeguard, derivative See Math- must considered. there advisory well. No doubt ews, inaccurate 908-09. suspects nei- many power among first-time OUI Although the least knowledge experience limitable, Lambert, ther nor their content assess whether blood-alcohol points of Maine to no the State level prima intoxication exceeds the omitting interest in mention of governmental facie suspects, such prescribed by statute. For mandatory minimum its stan- sentence least, that an accurate it cannot claimed Indeed, advisory. posit is difficult to dard mandatory minimum term of advisory by legitimate governmental interest served to sub- attendant refusal confinement misleading suspects implicitly into re- OUI materially influence testing mit to would not Rather, the fusing be tested. State’s le- deceptive “implied their decision. obtaining gitimate the most reli- interest advisory risks erroneous intoxication, through the able evidence of allowing consequence (e.g., as a conviction voluntary suspects, cooperation of OUI where evidence an unwarned refusal advising the of all better served testing may have revealed a blood- refusing testing. sanctions level) prima alcohol content below facie paramount has a State than would have but a more severe sentence delay minimizing any pre-testing which but the sus- imposed the court been might render chemical-test results unreliable. (e.g., pect’s to be tested unwarned Schmerber, would have dis- where reliable results likelihood, however, at 1835-36. all pri- closed content below a blood-alcohol simple, straightforward amendment level). ma intoxication facie advisory expedite would chemical standard ready alterna- The value of undeniable certainly, delay testing; it it.16 would advisory deceptive tive to is obvious. tragic conse- And the effort eradicate State, as well legitimate interests high- quences driving of drunken on Maine accused, significantly ad- as the would be thereby, ways than would be advanced rather straight- simple of a vanced inclusion hindered. warning that a first-time refusal forward proce- The ease with which an alternative testing must followed submit chemical be implemented weighs can likewise dure by a of confinement minimum term heavily in favor of an amendment to the operating motor while conviction for vehicle Mathews, advisory, see standard drugs. influence alcohol under the (“At point some prospects for obtain- State would advance its safeguard to benefit of an additional the indi- of intoxi- most reliable evidence cost.”), outweighed ... vidual level, see cation —the blood-alcohol occasion, pre- especially neither since would U.S. at 99 S.Ct. at Mackey, 443 testing delay significant expense. nor (characterizing test” results as “chemical mandatory minimum was intoxi- As sentence “the form of evidence of most reliable Due proceedings.”)— imposed in violation of the Process subsequent cation for use Clause, custody agree I should suspect in receive the writ enter while the would opinion persuasively majority demon- fronted with the choice whether 16. The agree testing, to counsel I am unable to no Sixth Amendment strates that to the well to be test- court that he entitled assistance arose until after Roberts refused time, distinguished appro- though at that as from ed. I the view that Roberts counsel But share refusing. priate when con- notice of not accorded the vacate the event the State Maine does not minimum sentence and afford meaningful hearing

petitioner 1312~B(2)(B)(4) applied.

which section is not PERALES, A.

Cesar as Commissioner of Department

the New York of So State Services; Depart

cial New York State Services; Abrams,

ment of Social Robert Attorney

as of the of New General State

York, People and on behalf of the of the York; York;

State of New State of New

City York; Roe; Doe; Sara New Jane individually Coe,

Anne and on behalf children,

their minor on behalf similarly

all their others situated and children, Plaintiffs-Appellants,

minor Foe; Moe; Mary Loe;

Fran Linda Susan

Soe; Zoe, individually Zelda on be children,

half of their minor and on similarly

behalf of all others situated children,

and their minor Plaintiffs-In

tervenors-Appellants, RENO, Attorney

Janet as General States; O’Reilly, As Terrance

sistant Commissioner Administrative

Appeals Immigration Unit of Service; R.

Naturalization William

Yates, as Eastern Service Di Center Division;

rector of the Eastern Wil INS Slattery,

liam S. as INS District Director District;

of the New York Donna E. Secretary

Shalala, Hu Health and Services, Defendants-Appellees.

man 253, 254, 255,

Nos. Dockets 91- 91-6167. Appeals, States

Second Circuit. May

Argued 1994. Feb.

Decided

Case Details

Case Name: Roberts v. State of Maine

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 16, 1995

Citation: 48 F.3d 1287

Docket Number: 93-2392

Court Abbreviation: 1st Cir.