AUGUSTA — A Belgrade woman is testing Maine’s drunken driving law, saying she consented to a blood draw by a police officer to determine her alcohol content only because she thought she’d go to jail if she didn’t.

The Maine Supreme Judicial Court heard oral arguments Friday in the appeal of Lyanne Lemeunier-Fitzgerald at the Capital Judicial Center.

Lemeunier-Fitzgerald asks the court to find that “a defendant has a constitutional right to refuse to submit to a blood-alcohol test, and that the implied consent warning” that was read to her by the officer “impairs the free exercise of that right,” according to the defense brief filed in the case.

She maintains that results of that blood-alcohol test should have been suppressed by a superior court justice since she consented to the blood draw under coercion because of the threat of imprisonment.

“A police officer can either coerce or seek consent,” said Jamesa Drake, an attorney representing Lemeunier-Fitzgerald, “but she can’t have it both ways simultaneously.”

Drake told the judges, “This court cannot upend nearly 50 years of U.S. Supreme Court law that where there is coercion there cannot be consent.”


At issue is the statement police officers read to people who are suspected of driving drunk. In Maine, police officers tell suspects that if they refuse a chemical test — either a breath test or blood test — and are convicted of the charge, their sentence would include jail time and refusing a test can be an “aggravating factor” at sentencing.

There is no separate charge in Maine or criminal penalty for refusing an alcohol test. When sentencing someone convicted of drunken driving; however, Maine judges can use that person’s refusal to submit to a test to impose minimum mandatory jail time and use it as an “aggravating factor” in imposing a longer jail sentence.

There is a separate administrative threat, though. If you refuse the alcohol test, your driving license is immediately suspended — even if you’re later found not guilty.

Consequences for drunken driving convictions vary greatly in Maine depending on how many times it’s happened before, whether an alcohol test is refused and if there are any other aggravating factors to consider, according to the state’s Bureau of Highway Safety. For example, a person convicted of drunken driving for the first time in Maine who consents to an alcohol test and has no other aggravating factors faces no jail time and a fine of $500, whereas a person convicted of the crime for the first time who refuses the test faces a mandatory minimum of 96 hours in jail and a $600 fine.

The attorneys in the Lemeunier-Fitzgerald case agree she was told by the police officer: “If you are convicted of operating while under the influence of intoxicating liquor or drugs, your failure to submit to a chemical test will be considered an aggravating factor at sentencing, which in addition to other penalties, will subject you to a mandatory minimum period of incarceration.”

The U.S. Constitution permits breath tests without a warrant, but does not permit blood tests without a warrant, according to a case frequently cited by both attorneys and judges during Friday’s arguments.


This is “the first opportunity to test whether Maine’s mandatory minimum period of incarceration for refusing to submit to a blood test runs afoul of the U.S. Supreme Court’s (2016) decision in Birchfield v. North Dakota,” according to The Maine Association of Criminal Defense Lawyers, which filed a brief in the case.

Attorneys and the justices frequently referenced the decision in the Birchfield case, which says, “The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”

Drake and the prosecutor in the case, Assistant District Attorney Kate Marshall, said the facts in the case were undisputed.

Lemeunier-Fitzgerald, 50, was found Dec. 21, 2015, behind the wheel of a vehicle that was parked incorrectly in a parking space at an Augusta supermarket.

She ultimately entered a guilty plea — conditional on the outcome of the appeal — to a charge of operating under the influence. She was sentenced to an initial 45 days in jail, with the remainder of the three-year sentence suspended, and two years of probation. The sentence is stayed pending appeal.

Lemeunier-Fitzgerald was not at Friday’s oral argument session, which was watched by about 20 people, including a number of other attorneys.


Her defense attorney in the OUI case, Darrick Banda, sat with Drake.

Chief Justice Leigh Saufley told Drake that the Birchfield case provides some guidance, but that the facts are somewhat different in the Lemeunier-Fitzgerald matter.

“The issue for us then narrows down to the direction she received from the officer as to what would happen if she did not consent,” Saufley said. “Would you agree with me that the key problem with the informed consent is the fact that there could be an enhanced sentencing; there is, in fact, an enhanced criminal penalty if she is convicted of OUI?”

Drake agreed and said the warning implies the refusal would be admissible in evidence.

“Here in Maine there is no separate crime for refusal,” Associate Justice Ellen Gorman noted. “If you are convicted, it can result in an enhanced sentence.”

Marshall said the police officer read Lemeunier-Fitzgerald warnings from an implied consent form, including information that refusing a chemical test, if convicted of the operating under the influence charge, carries a mandatory minimum jail term.


“She was given the information only on the implied consent form,” Marshall said Friday, adding that the officer did not recall the woman asking any questions. “She consented to the blood draw; she signed a medical waiver.”

Saufley told Marshall, “Although the title to the statute says ‘implied consent,’ as they do across the country, there is nothing in the state statute that says when you drive a car you imply or give your consent to this kind of search. Does that affect our determination as to whether this was a voluntary and consensual search?”

Marshall says the implied consent is part of a contractual agreement with the state through the Secretary of State’s office.

Associate Justice Andrew Mead asked whether it would be more correct to say that “the law requires consent.”

“You can withdraw your consent, your honor,” Marshall said. “You can’t compel somebody to give their arm, to stick a needle in their arm.”

Gorman, though, stated it was still essentially a threat, because “if you don’t follow through with this, bad things will happen, so you should consent if you know what’s good for you.”


Marshall disputed that characterization, saying that threat “is a strong word” and that the officer was giving the defendant “information she needs to make a rational, informed choice.”

“How much more coercive than the threat of incarceration does the threat have to be? ” Justice Jeffrey Hjelm asked.

Alexander added, “Also if you refuse, off you go to the Secretary of State and they take your license even before you go to trial.”

In her brief, Marshall says, “Every state, including Maine, has legislatively enacted ‘implied consent laws’ that require motorists, as a condition of operating a motor vehicle, to consent to chemical testing if they are arrested or detained upon suspicion of impaired driving,”

She adds, “Unlike the implied consent statutes previously in effect in Minnesota and North Dakota, Maine’s implied consent law does not criminalize the act of refusing; rather, a refusal ‘may be considered an aggravating factor at sentencing if the person is convicted of operating under the influence of intoxicants.”

The Maine attorney general’s office filed a brief in support of the district attorney’s position.

Betty Adams — 621-5631

[email protected]

Twitter: @betadams

Only subscribers are eligible to post comments. Please subscribe or login first for digital access. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

filed under: