Lead Opinion
[¶ 1] When a motor vehicle collision is so severe that people are killed or may die, Maine law requires law enforcement officials to test the blood of all drivers for intoxicants. 29-A M.R.S. § 2522(1), (2) (2006). This appeal requires us to determine whether the statute’s procedures, which in some instances allow the admission of those blood test results in a criminal trial of the driver, 29-A M.R.S. § 2522(3) (2006), violate the Fourth Amendment of the United States Constitution.
[¶ 2] Specifically, the State appeals from a judgment of the Superior Court (Cumberland County, Fritzsche, J.) granting Richard Cormier’s motion to suppress the results of a blood test administered pursuant to 29-A M.R.S. § 2522 (2006) on the ground that Cormier’s blood was drawn in violation of the Fourth Amendment. Because we agree with the State that the operation of the mandatory testing statute does not violate the Fourth Amendment, we vacate the court’s judgment of suppression and remand the matter for further proceedings to determine whether the results of the blood test are admissible in this matter pursuant to the statute.
I. BACKGROUND
[¶ 3] The facts of this case relevant to the dispute before us are not disputed on appeal. On the afternoon of May 11, 2003, Cormier was driving a car that was involved in a head-on motor vehicle collision. Two occupants of the other vehicle died as a result of that collision. Cormier was transported to the hospital by ambulance. The police and paramedics did not, at the scene of the accident, smell alcohol on Cormier or observe anything that would indicate that he was under the influence of alcohol.
[¶4] Acting in accordance with 29-A M.R.S. § 2522(1),
[¶ 5] Cormier was indicted on two counts of manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2006); one count of aggravated assault (Class B), 17-A M.R.S. § 208(1)(B), (2) (2006); one count of aggravated OUI (Class C), 29-A M.R.S.A.
II. DISCUSSION
[¶ 6] We are, accordingly, called upon to examine the constitutionality of the Maine statute that allows the admission, in certain circumstances, of blood test results against drivers involved in motor vehicle accidents resulting in, or likely to result in, a fatality. 29-A M.R.S. § 2522(3). We begin by examining the purpose and function of section 2522. We then review the application of Fourth Amendment principles to the statute.
A. The Statutory Context for Mandating Blood Testing in Fatal Accidents
[¶ 7] The National Highway Traffic Safety Administration reports that in 2005, 225 drivers were involved in fatal vehicle accidents in Maine and that an estimated twenty-three percent of those drivers had alcohol in their blood. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., NAT’L CTR. FOR STATISTICS & ANALYSIS, TRAFFIC SAFETY FACTS: STATE ALCOHOL ESTIMATES 7 (2005). Of the estimated fifty-two drivers with alcohol in their systems, forty-five were estimated to have had blood-alcohol levels of .08% or greater. Id. Because of incomplete data, these figures were only estimates based on a statistical model. Id. at 1. As NHTSA noted, “Missing data can result for a number of reasons, the most frequent of which is that persons are not always tested for alcohol.” Id.
[¶ 8] The Maine Legislature, aware of the dire consequences of drunk driving, has enacted exacting standards for drivers and law enforcement officials that are designed to reduce alcohol-related deaths on Maine roads. Recognizing the need for more complete information about the involvement of alcohol in serious and fatal accidents, the Legislature has mandated blood-alcohol testing for any driver involved in an accident in which there is probable cause to believe a death has occurred or will occur:
Mandatory submission to test. If there is probable cause to believe that death has occurred or will occur as a result of an accident, an operator of a motor vehicle involved in the motor vehicle accident shall submit to a chemical test ... to determine blood-alcohol level or drug concentration in the same manner as for OUI.
29-A M.R.S. § 2522(1). Even if the driver is the person who died at the scene, the testing is mandated nonetheless. See id. § 2522(1), (2). The testing of drivers is thus required after a fatal accident without regard to the possibility that the driver may be prosecuted. This mandatory testing adds to the State’s body of knowledge regarding the effects of driving in Maine while under the influence of alcohol or drugs and allows the Legislature to be more informed as it shapes policy.
[¶9] Taking into account the potential for the blood test results to be used against a driver in a criminal proceeding, however, the statute goes on to limit the admissibility of the blood test results at a criminal trial to circumstances in which evidence independent from the test would demonstrate probable cause to believe that the operator was under the influence of intoxicants:
Admissibility of test results. The result of a test is admissible at trial if the court, after reviewing all the evidence, whether gathered prior to, during or after the test, is satisfied that probable cause exists, independent of the test result, to believe that the operator was under the influence of intoxicants at the time of the accident.
Id. § 2522(3).
[¶ 10] Thus, the statute allows for the admission of the test results only when there exists independent probable cause to believe that the driver was operating under the influence. Unique to this statute is the Legislature’s authorization of law enforcement to determine whether probable cause existed at the time of the test through evidence gathered after the test had been taken.
[¶ 11] Cormier’s blood test results were gathered pursuant to section 2522. There is no dispute that the test results were obtained through a search conducted without Cormier’s consent, without a warrant, and without the determination of probable cause before the test was administered. On these facts, the court concluded that the statute was unconstitutional as it was applied to Cormier, and the court granted Cormier’s motion to suppress. We now review the court’s legal conclusions regarding Maine’s mandatory blood testing statute de novo. See State v. Reynoso-Hernandez,
B. Review of the Court’s Ruling on the Motion to Suppress
[¶ 12] In reviewing the court’s suppression order, we confront two questions: (1) do the provisions of section 2522 result in an unreasonable search that violates the Fourth Amendment, thereby requiring suppression of the test results; and (2) if the statute comports with the Fourth Amendment, did the motion court determine whether the State had established probable cause pursuant to 29-A M.R.S. § 2522(3)?
1. Does Section 2522(3) Violate the Fourth Amendment?
[¶ 13] We have previously, if briefly, addressed the legal question presented here, holding that the predecessor to section 2522(3) permits the admission of blood test results when, before, during, or after the administration of the mandatory blood test, information comes to light that establishes probable cause to believe that the
[¶ 14] The Fourth Amendment of the United State Constitution protects the “right of the people to be secure ... against unreasonable searches and seizures.” U.S. CONST, amend. IV. Evidence that is obtained through an unreasonable search is subject to suppression; that is, it cannot be used against a defendant in a criminal trial. See Schmerber v. California,
[¶ 15] The absence of consent or a warrant does not, however, dispose of the question of the reasonableness of a search. Courts have articulated several exceptions to the warrant “requirement.” See Mincey v. Arizona,
[¶ 16] Each of these three exceptions has been upheld by the United States Supreme Court as a legitimate exception to the requirement that a warrant be obtained before conducting a nonconsensual search.
a. Inevitable Discovery and Exigent Circumstances
[¶ 17] The inevitable discovery exception permits the admission of evidence obtained without a warrant if (1) the evidence could also have been gained lawfully from information that is truly independent from the warrantless search, and (2) the evidence inevitably would have been discovered by such lawful means. See State v. Storer,
[¶ 18] We recognize that a search authorized by section 2522 does not fall neatly into either of these exceptions. The inevitable discovery exception is usually understood to apply to evidence that would have been found later, through other legit
[¶ 19] Through the enactment of section 2522(3), which allows the probable cause determination required for admissibility to be based on evidence gathered before, during, or after the test, see Bento,
[¶ 20] The exigencies that exist at the site of a fatal collision are obvious. When a serious collision, likely to involve a fatality, has just occurred, responding officers are, and should be, occupied with potentially life-saving matters that are more urgent than gathering evidence of intoxication to support the probable cause necessary for a blood test. The officers may also be responsible for assuring that the collision scene does not create greater dangers to other motorists who must travel the same road. The Legislature, in attempting to identify drivers involved in deadly accidents while intoxicated, has also taken into account the chaos inherent at the scene of a fatal, or likely fatal, accident. The statute requires immediate testing, in these narrow circumstances, without the ordinary pause to collect evidence relevant to whether alcohol or drugs might have impaired the driver.
[¶21] The statute’s legislative history also demonstrates that the Legislature took into account the urgent life-and-death nature of an accident scene in crafting the mandatory drug and blood-alcohol testing legislation. The Legislature initially enacted the statute in the late 1980s. P.L. 1987, ch. 791, § 17 (effective Aug. 4, 1988) (codified at 29 M.R.S.A. § 1312(11)(D) (Supp.1988)). When the statute was under consideration, the Judiciary Committee received testimony, including testimony from the Commissioner of the Department of Public Safety. The Department advocated mandatory blood-alcohol testing of drivers involved in fatal motor vehicle accidents in part “based on the practicalities of a fatal accident scene and the resulting decisional pressures placed on the investigating law enforcement officer.” Testimony of Commissioner John Atwood, Department of Public Safety, on L.D. 2395 before the Joint Standing Committee on Legal Affairs 4 (Mar. 14, 1988). The Department elaborated:
Oftentimes, drivers will appear dazed due to injuries or emotional shock. The officer cannot always accurately assess when the driver’s condition is due to alcohol ingestion or some other reason. If he/she makes the determination that it is the latter, fails to take a test and finds out later that he/she was mistaken, then it is too late to give a test. Thealcohol will have been eliminated from the driver’s blood. 6
Id.
[¶ 22] The Legislature recently amended section 2522 to'require a blood test, rather than allowing the option of a breath test. P.L.2003, ch. 565, § 1 (effective July 30, 2004) (codified at 29-A M.R.S. § 2522(1), (2)). When that legislation was under consideration, the sponsor, Representative Bowles, observed that the scene of an accident is chaotic, and a driver’s blood-alcohol or drug content should be determined quickly and accurately:
The first law enforcement officer responding to an accident scene is typically faced with a series of immediate, possibly life saving decisions. Trying to save a potential victim, offering comfort to survivors, securing the accident scene to prevent additional tragedy and preserve evidence for accident reconstruction investigators are all issues requiring immediate attention. One of the officer’s responsibilities is deciding if a fatality has occurred or is likely to occur as a result of the accident. A second priority is trying to determine if a surviving driver appears to be impaired either by alcohol or drug consumption and administering an appropriate test to make this determination. This is often not an easy determination particularly in the case of drivers impaired by drug consumption, both legal and illegal. Additionally, the surviving driver may, because of the severity of his or her injuries, be unavailable for interview for hours and perhaps days following the accident. During this time, facts may come to light in the form of witnesses or forensic evidence that point to a driver’s use of substances which may have played a contributing role in causing the accident.
Testimony of Rep. David Bowles on L.D. 1803 before the Joint Standing Comm, on Criminal Justice & Pub. Safety 1-2 (Jan. 28, 2004).
[¶ 23] Thus, the statute requires the test in this limited situation because of “the gravity of the accident” and “the evanescent nature of evidence of intoxication.” Roche,
[¶ 24] Having dealt with the exigencies, the Legislature then provided protections for drivers that incorporate the concepts of inevitable discovery. It did so by narrowly tailoring the statute to allow admission of those test results, in the absence of a warrant, consent, or simultaneous determination of probable cause, only when the State demonstrates probable cause to believe that the accident has resulted, or will result, in a fatality. 29-A M.R.S. § 2522(1). Further, the statute allows the admission of drug and blood-alcohol test results against a defendant only when other independent evidence, gathered before, during, or after the administration of the test, would inevitably have prompted the blood test if the police had had adequate time to investigate and were not otherwise occupied as responders to a scene involving one or more medical emergencies. 29-A M.R.S. § 2522(3); see Bento,
[¶ 25] The combined effect of the statutory provisions assures the following. First, the State and NHSTA will always
(1) probable cause existed to believe a death had occurred or would occur as a result of the accident, and
(2) either
(a) the defendant consented to the test, or a warrant for the test was properly issued;7
(b) the officer had probable cause to believe that the driver was operating under the influence of drugs or alcohol before the test was administered; or
(c) the evidence meets the standard for admissibility established by 29-A M.R.S. § 2522(3), allowing admission when the State demonstrates that evidence, independent of the test, gathered before, during, or after the test, demonstrates the existence of probable cause to believe that the driver was operating under the influence of drugs or alcohol.
[¶ 26] Most critical to our analysis here is part (c). Section 2522(3) allows the admission of the test results, in the absence of consent, a warrant, or the existence of probable cause in advance of the test, only if: (1) the State presents evidence gathered after the fact demonstrating that, but for the exigencies at the scene of the collision, probable cause for the test would have been discovered; and (2) the test would have been administered based on the probable cause established by this independent lawfully obtained information. See 29-A M.R.S. § 2522(3); Bento,
[¶ 27] The Fourth Amendment does not prohibit all searches and seizures, only those that are unreasonable. See Skinner,
b. Special Needs
[¶ 28] Our analysis could end there. However, because the motion court focused primarily on the special needs exception to the warrant requirement, which was most recently addressed in Skinner and Ferguson, we go on to address the applicability of that exception as well in determining whether the search of Cormier’s person, in the form of the blood test, was unreasonable.
[¶29]"A special needs analysis requires us to balance the privacy interests of the individual against the governmental interests at stake to assess the practicality of the warrant and probable cause requirements. See, e.g., Griffin v. Wisconsin,
[¶ 31] The United States Supreme Court first clearly defined the special needs test to require a balancing of the competing individual and governmental interests in New Jersey v. T.L.O.,
[¶ 32] More recently, the Supreme Court addressed the special needs exception in reviewing the constitutionality of requiring blood tests of railroad workers involved in major train accidents, see Skinner,
[¶ 33] The Ferguson hospital policy provided for the testing of a pregnant woman if she met one of nine criteria, which included prior known drug or alcohol abuse, the existence of certain medical conditions,
[¶ 34] The Court distinguished the hospital policy from the Federal Railroad Administration regulations that the Court reviewed in Skinner. Ferguson,
[¶ 35] Although in Skinner, the United States Supreme Court did not reach the question presented here, that is, whether the State may use the blood test results during a criminal prosecution, see Skinner,
[¶ 36] Accordingly, we proceed to balance the compelling need of the State to obtain information about the intoxication of drivers involved in fatal, or likely fatal, collisions against the privacy interest of drivers, who are prohibited by law from driving while intoxicated, in the level of alcohol or other intoxicants in their blood. We conclude that the State’s interest in gathering information to assist in addressing the problem of intoxicated driving outweighs the privacy interest of drivers in the content of their blood. The State’s special needs, separate from the general purpose of law enforcement, justify an exception to the warrant requirement in these circumstances. See Skinner,
[¶ 37] Having concluded that section 2522 does not itself violate the Fourth Amendment, we now review the court’s
2. Did the Court Determine Whether the State Established Probable Cause Pursuant to Section 2522(3)?
[¶ 38] The motion court’s decision turned on its understanding of Ferguson, in which the United States Supreme Court struck down the hospital policy that allowed the warrantless, nonconsensual blood testing of pregnant women without probable cause for the search.
[¶39] Because the court did not reach this factual question, we vacate the order of suppression and remand the matter to the Superior Court. On remand, the court will determine, as required by 29-A M.R.S. § 2522(3), whether evidence independent of the test results, obtained during or after the administration of the test, establishes that, but for the exigencies of the collision aftermath, the State inevitably would have demonstrated probable cause to believe that Cormier was operating under the influence of intoxicants at the time of the accident. See 29-A M.R.S. § 2522(3).
The entry is:
Order of suppression vacated. Remanded for the court to apply 29-A M.R.S. § 2522(3).
Notes
. Title 29-A M.R.S. § 2522(1) (2006) provides that,
[i]f there is probable cause to believe that death has occurred or will occur as a result of an accident, an operator of a motor vehicle involved in the motor vehicle accident shall submit to a chemical test ... to determine blood-alcohol level or drug concentration in the same manner as for OUI.
. Although the issue of consent was disputed at the hearing, the State does not challenge the court’s finding that there was no consent.
. The accident occurred before the repeal of 29-A M.R.S.A. § 2411(6) (Supp.2003). See P.L.2003, ch. 452, § Q-83 (effective July 1, 2004).
. The accident occurred before the Legislature amended 17-A M.R.S.A. § 1252(4) (1983). See P.L.2005, ch. 527, § 17 (effective Aug. 23, 2006) (codified at 17-A M.R.S. § 1252(4) (2006)).
. See Brigham City, Utah v. Stuart, U.S. -,-,
. The United States Supreme Court has also recognized the unique need to administer a blood-alcohol test promptly after a collision has occurred. Schmerber v. California,
. Consent is not a prerequisite to the test, nor does the lack of consent, informed or otherwise, preclude admission of the test if other prerequisites to admissibility are met. 29-A M.R.S. § 2522(l)-(3) (2006).
Dissenting Opinion
[¶ 40] The warrantless search and seizure at issue in this case was authorized by 29-A M.R.S. § 2522 (2006), and was in furtherance of the heightened public interest in deterring individuals from driving while intoxicated, and in prosecuting those who do so at the expense of human life. The majority upholds this provision on the basis of a “compelling need” on the part of the State to collect data, and finds further support for its constitutionality in the inevitable discovery rule and the exigent circumstances exception to the warrant requirement. Because I conclude that the majority’s various rationalizations of section 2522 have no support in either fact or law, I respectfully dissent.
[¶ 41] I will address (A) our application of the special needs exception in State v. Roche,
I. LEGAL ANALYSIS
A. The Special Needs Exception
[¶ 42] We previously upheld the constitutionality of section 2522’s predecessor, 29
[¶ 43] Since we decided Roche in 1996, the Supreme Court revisited the issue of warrantless, nonconsensual searches in Ferguson, and refined the application of the special needs exception. The drug tests challenged in Ferguson were conducted pursuant to a state hospital policy developed in conjunction with police that mandated drug testing of pregnant patients who met any of the nine criteria identified in the policy.
B. The Superior Court’s Application of the Special Needs Exception to Section 2522
[¶ 44] The Superior Court determined that our holding in Roche was rendered invalid by the Supreme Court’s holding in Ferguson. The court concluded that because the police are even more extensively involved in the administration of blood tests under section 2522 than they were in the tests at issue in Ferguson, and because the primary purpose of the search mandated by section 2522 is to gather evidence for criminal prosecution, section 2522 violates the Fourth Amendment of the U.S. Constitution and article I, section five of the Maine Constitution.
[¶ 46] Ferguson, decided twelve years after Skinner, refined the special needs exception by placing a limit on what governmental purposes qualify as “special needs” sufficient to do away with the Fourth Amendment protections of the probable cause and warrant requirements. Ferguson requires courts to determine whether there exists some compelling reason beyond the State’s general interest in crime control to justify such a waiver of Fourth Amendment protections. By distinguishing Ferguson and relying instead on the law of Skinner, the majority returns to the time before such limits were placed on the special needs exception.
[¶ 47] Furthermore, Skinner is distinguishable from the present case in two important ways. First, as the majority concedes, Skinner did not implicate concerns about the reach of law enforcement because it did not address the question of whether the results of the mandatory blood tests would be later admissible in a criminal trial. The only consequence of a positive test for the railroad workers in Skinner was dismissal or a nine-month suspension with a hearing if the worker refused the test.
[¶ 48] Second, the Court in Skinner based its decision in large part on its finding that railroad workers have a diminished expectation of privacy because they work in an industry that is highly regulated to ensure safety. Id. at 627-28,
[¶ 50] Although the State’s interest in data collection, as evidenced by the statute’s legislative history, is a justification for section 2522, it is evident that the primary practical purpose of the law is to gather and preserve evidence to be used in prosecutions against those believed to have been operating under the influence of intoxicants or drugs. This is demonstrated by the fact that when the State lab conducts testing on blood samples gathered as a result of this statutory authorization, copies of the results of those tests are forwarded directly to the District Attorney’s office and the investigating law enforcement officer, in addition to the Department of Motor Vehicles. Cf. United States v. Weikert,
[If 51] The law enforcement focus of section 2522 is also borne out by external indicia of legislative intent accompanying its legislative history. In his written testimony in support of L.D. 2895 before the Joint Standing Committee on Legal Affairs, the Co-Chairperson of the Maine Highway Safety Commission wrote in support of the bill’s provision regarding mandatory blood-alcohol tests by stating: “It is crucial to the prosecution of vehicular manslaughter cases that blood alcohol levels of the drivers be available as pertinent evidence. We have seen many many times that the cases hinged on this evidence and the person inflicting the carnage going free.” Testimony of Albert L. Godfrey Sr., Maine Highway Safety Comm., on L.D. 2395 before the Joint Standing Committee on Legal Affairs (Mar. 11, 1988).
[¶ 52] By overlooking the obvious law enforcement purpose of section 2522 and sustaining the statute’s constitutionality on a “compelling need of the State to obtain information,” supra ¶ 36, the majority creates precedent that could lead to even greater erosion of the Fourth Amendment rights of Maine’s citizens. By readily concluding that the State’s interest in data collection trumps the liberty interests of individuals protected by the Fourth Amendment, the majority has embraced a new and broad constitutional theory that could justify warrantless and suspicionless searches in innumerable other contexts.
C. The Majority Opinion’s Application of the “Inevitable Discovery” Rule and the Exigent Circumstances Exception
[¶ 53] The majority also embraces another new theory — a combined “inevitable discovery/exigent circumstances exception”— to uphold the constitutionality of section 2522, notwithstanding the fact that the State did not make this argument on appeal. For the reasons that follow, neither the inevitable discovery rule, nor the exigent circumstances exception validates the
1. Inevitable Discovery Rule
[¶ 54] The majority concludes that section 2522 survives constitutional scrutiny in part because the admissibility of the blood tests it authorizes are subject to a codification of the inevitable discovery rule in subsection 2522(3). The inevitable discovery rule allows evidence acquired as a result of an illegal search to be admitted at trial where the government can show, by a preponderance of the evidence, that the unlawfully obtained evidence would have been inevitably discovered through lawful means. Nix v. Williams,
[¶ 55] The warrantless and suspicionless search that section 2522 authorizes results in the preservation of an operator’s blood sample at a particular moment in time. It is physically impossible for the same sample to be subsequently and inevitably discovered later in time because of the effect that the passage of time has on an operator’s blood-alcohol content. See generally 2 RICHARD E. ERWIN, DEFENSE OF DRUNK DRIVING CASES § 15.08 (3d ed.2006) (explaining the effects of time on blood-alcohol content). Therefore, the inevitable discovery rule cannot be a valid basis to admit the test results of an unlawfully obtained blood sample, where probable cause has been developed long after the blood sample was seized.
[¶ 56] The lack of any authority supporting the majority’s expansive reformulation of the inevitable discovery rule is telling. The only decision the Court cites in support of its conclusion that after-acquired probable cause is sufficient to sustain the constitutionality of the blood tests authorized by section 2522 and admit the test results at trial is State v. Bento,
[¶ 57] The exigent circumstances exception to the warrant requirement applies when “there is adequate probable cause for the seizure and insufficient time for the police to obtain a warrant.” State v. Alley,
II. CONCLUSION
[¶ 58] Section 2522 cannot be sustained on the basis of the State’s interest in collecting data on drunk driving when its primary purpose is to collect evidence to be used in criminal prosecutions for drunk driving related crimes. Section 2522 also cannot be sustained on the basis of a combination of the exigent circumstances exception to the warrant requirement and the inevitable discovery rule. The exigent circumstances exception requires the existence of probable cause at the time of the search, and section 2522 impermissibly allows after-acquired probable cause to justify an earlier warrantless search. Furthermore, the inevitable discovery rule is not so elastic as to authorize the admission of evidence that could not have been inevitably discovered.
[¶59] The majority’s opinion leads the law into new, uncharted territory in which probable cause — a cornerstone of the Fourth Amendment — plays a secondary, after-the-fact role. Notwithstanding section 2522’s proper and noble purpose, I conclude that to the extent the statute authorizes searches and seizures based on after-acquired probable cause, the statute is unconstitutional on its face. The judgment of the Superior Court should be affirmed.
. Title 29 M.R.S.A. § 1312 (Supp.1992) has since been repealed and replaced by P.L. 1993, ch. 683, § A-2 (effective Jan. 1, 1995), which has since been amended by P.L.2003, ch. 565, § 1 (effective July 30, 2004) (codified at 29-A M.R.S. § 2522 (2006)).
. Other courts have likewise found the special needs exception inadequate to support the type of nonconsensual, warrantless, and sus-picionless search authorized by Maine’s statutes. See generally Cooper v. State,
. The majority also suggests that its application of the special needs exception is justified because people “receiving a driver’s license in Maine [cannot] do so without ... understanding the State's interest in assuring the sobriety of drivers on Maine roads.” Supra ¶ 30. While this statement is undoubtedly true, it is beside the point. Receiving a license and knowing of the State’s interest in combating drunk driving does not give rise to an actual or implied consent by all drivers in Maine to be subjected to blood testing without probable cause. A driver’s appreciation that the State is serious on this issue does not give rise to a waiver of a fundamental constitutional right. To the extent that the Court intends to suggest that Cormier actually or impliedly consented to the search conducted in this case, it overlooks the Superior Court's factual finding that there was no consent. The State has not challenged this finding on appeal.
. The Court noted that it was unclear whether its decision would be different if evidence collected under the regulatory scheme was routinely used in criminal proceedings. Skinner v. Ry. Labor Executives’ Ass'n,
. Title 29-A M.R.S. § 2522(3) provides:
3. Admissibility of test results. The result of a test is admissible at trial if the court, after reviewing all the evidence, whether gathered prior to, during or after the test, is satisfied that probable cause exists, independent of the test result, to believe that the operator was under the influence of intoxicants at the time of the accident.
. I disagree with the majority's application of the inevitable discovery rule only to the extent that the opinion states that the results of a warrantless, suspicionless blood test can be admitted against a criminal defendant based on an after-acquired finding of probable cause. I do not address whether a finding of probable cause based on evidence "gathered ... during ... the test” could sustain the otherwise unlawful search, because such a determination is dependent on a variety of factors. See 29-A M.R.S. § 2522(3). One can imagine factual circumstances in which probable cause may develop simultaneously with the unlawful blood test, such that law enforcement officers would have a lawful and independent basis for conducting the test, and the timing would be such that the results of the test would be substantially the same. In such a situation, it is possible that the results of that unlawful test would have been inevitably discovered through lawful means. However, we do not face that factual situation in this case, because the State failed to prove at the suppression hearing that probable cause had developed during the blood test or at any other time.
. See generally United States v. Chapel,