USCA1 Opinion
March 1, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2392
ALAN D. ROBERTS,
Plaintiff - Appellant,
v.
STATE OF MAINE,
Defendant - Appellee.
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ERRATA SHEET
The opinion of this Court issued on February 16, 1995, is
amended as follows:
On page 34, 2d line from end of text: Change "infra" to
_____
"supra";
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On page 43, delete "Conclusion".
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2392
ALAN D. ROBERTS,
Plaintiff - Appellant,
v.
STATE OF MAINE,
Defendant - Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
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_____________________
Robert E. Sandy, Jr., with whom Sherman, Sandy & Lee, was on
____________________ ____________________
brief for appellant.
Donald W. Macomber, Assistant Attorney General, with whom
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Michael E. Carpenter, Attorney General, Charles K. Leadbetter and
____________________ _____________________
Wayne S. Moss, Assistant Attorneys General, were on brief for
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appellee.
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February 16, 1995
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TORRUELLA, Circuit Judge. Maine's "implied consent"
TORRUELLA, Circuit Judge.
_____________
law imposes a two-day mandatory minimum jail sentence on
defendants who refuse to take a blood/alcohol test and are later
convicted of operating a motor vehicle under the influence of
intoxicating liquor. 29 M.R.S.A. 1312, 1312-B. Petitioner-
Appellant Alan D. Roberts challenges the constitutionality of his
conviction and sentence under this law because, prior to his
decision not to take a blood/alcohol test, (1) a police officer
informed Roberts of "the consequences" of refusing to take the
test but did not mention the mandatory jail sentence, and (2) the
police officer denied Roberts' request to call his attorney. We
find that under the particular circumstances of this case,
Roberts' constitutional right to due process was violated and his
petition for writ of habeas corpus must be granted as to his two-
day mandatory sentence.
I. BACKGROUND
I. BACKGROUND
On January 25, 1991, Officer Alan Main of the
Waterville, Maine Police Department stopped Roberts after Officer
Main observed Roberts driving erratically. Officer Main smelled
alcohol on Roberts' breath and suspected Roberts was driving
while intoxicated but initially arrested Roberts only for
operating a vehicle with a suspended license in violation of 29
M.R.S.A. 2184. Officer Main handcuffed Roberts and then
transported him to the Waterville Police Station for processing.
Roberts remained in handcuffs throughout the relevant time period
at issue in this case.
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At the police station, Officer Main read Maine's
"implied consent" form to Roberts, which is normally read to any
driver stopped or arrested for operating under the influence of
intoxicating liquor pursuant to 29 M.R.S.A. 1312. The form
states:
By operating or attempting to operate a
motor vehicle in this State you have a
duty to submit to and complete chemical
tests to determine your blood-alcohol
level and drug concentration.
I will give you a breath test unless I
decide it is unreasonable, in which case
another chemical test will be given. If
you are requested to take a blood test
you may ask that your physician perform
the test if your physician is reasonably
available.
If you fail to comply with your duty to
submit to and complete chemical tests
your driver's license or permit or right
to apply for or obtain a license will be
suspended for at least 6 months and may
be suspended as long as 3 years. Your
failure to submit to a chemical test is
admissible against you at any trial for
operating while under the influence of
intoxicating liquor or drugs.
I have been advised of the consequences
of failure to comply with the duty to
submit to and complete a chemical test at
the request of an officer and DO NOT WISH
TO SUBMIT TO A TEST.
_________________________________
Signature of Person Refusing
Test
Maine's implied consent form essentially tracks the
language of the "implied consent" statute which requires officers
to warn suspected drunk drivers of potential consequences of
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refusing to take the blood/alcohol test. 29 M.R.S.A. 1312. As
the statute was originally enacted, the only two consequences for
failure to consent were, as the form states, suspension of the
suspect's driver's license and the admission of the fact that the
suspect refused to take the test in evidence at trial. In 1987,
however, the Maine legislature amended its statute to provide two
additional consequences, both involving sentencing, for refusing
to take a blood/alcohol test. 1987 Maine Laws, ch. 791. Under
the current law, a defendant's refusal to submit to the test is
considered to be an "aggravating factor" for the determination of
that defendant's sentence and, more significantly, that
defendant's refusal will result in a mandatory minimum sentence
of 48 hours incarceration upon conviction. 29 M.R.S.A. 1312-
B(2) & (2)(B)(4).
Unfortunately, these changes did not make their way
into the portion of the statute mandating what the police must
say to suspected drunk drivers after those drivers are stopped.
29 M.R.S.A. 1312(1). As a result, the "implied consent" form
was never changed to reflect the additional consequences for
refusing to submit to a blood/alcohol test. Likewise, during
Roberts' processing at the police station, Officer Main never
informed Roberts of the additional consequences, including the
mandatory jail sentence.
During the period when Officer Main was administering
the "implied consent" procedure to Roberts, Roberts asked several
times to use the telephone for the purpose of calling his
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attorney. Officer Main refused to allow Roberts to do so.
Officer Main claimed that he denied Roberts permission to contact
hisattorneybecauseRobertswas uncooperativeandshoutingobscenities.
Roberts eventually refused to take the blood/alcohol
test. He also refused to sign the "implied consent" form after
the form was read to him. Subsequently, the police filed a
criminal complaint against Roberts charging him, among other
things, with operating a motor vehicle under the influence of
intoxicating liquor ("OUI") and operating on a suspended license
in violation of 29 M.R.S.A. 1312-B and 29 M.R.S.A. 2184
respectively.
After a trial in the Maine district court, Roberts was
convicted on the OUI and operating on a suspended license
charges. At sentencing, the court followed the requirements of
29 M.R.S.A. 1312-B(2)(B)(4) and imposed the mandatory minimum
48-hour sentence of incarceration as a result of Roberts' refusal
to take a blood/alcohol test.1 Roberts appealed his conviction
to the Kennebec County Superior Court and then to the Maine
Supreme Judicial Court. Both appellate courts denied his appeal.
Following remand for the imposition of sentence, Roberts
initiated a Petition for Writ of Habeas Corpus in the United
States District Court for the District of Maine. The Maine state
trial court ordered the sentence of incarceration stayed pending
the outcome of proceedings on the habeas corpus petition. The
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1 The court also imposed a 90-day license suspension and a fine
for Roberts' conviction of the substantive offenses of drunk
driving and driving with a suspended license.
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federal district court dismissed Roberts' habeas corpus petition
on October 29, 1993. Roberts then brought this appeal.
-6-
II. ANALYSIS
II. ANALYSIS
Roberts raises two related issues on appeal: (1)
whether Officer Main's refusal to allow Roberts to call his
attorney before deciding whether to take a blood/alcohol test
denied Roberts of his Sixth Amendment right to counsel; and (2)
whether Maine's "implied consent" form is misleading and
inaccurate, in violation of Roberts' constitutional right to due
process. Although Roberts' Sixth Amendment right to counsel is
not implicated in this case, we do find a violation of Roberts'
due process rights on the grounds that all of the circumstances
of the case, including, but not limited to, the misleading
information, deprived Roberts of fundamental fairness.
A. Sixth Amendment Right to Counsel
A. Sixth Amendment Right to Counsel
________________________________
The Sixth Amendment to the United States Constitution
guarantees that, "[i]n all criminal prosecutions, the accused
shall enjoy the right to . . . have the Assistance of Counsel for
his defense." U.S. Const. amend. VI. It is axiomatic that the
right to counsel attaches only upon "the initiation of adversary
judicial criminal proceedings" against the defendant, and
thereafter the right applies to all "critical stages" of the
prosecution, before, during and after trial. United States v.
______________
Gouveia, 467 U.S. 180, 189 (1984); United States v. Ash, 413 U.S.
_______ _____________ ___
300, 310-13 (1973); Kirby v. Illinois, 406 U.S. 682, 688-90
_____ ________
(1972); United States v. Wade, 388 U.S. 218, 225-27 (1967).
_____________ ____
The initiation of adversary judicial proceedings is
normally "by way of formal charge, preliminary hearing,
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indictment, information, or arraignment." Kirby, 406 U.S. at
_____
689. In general terms, the point at which the right to counsel
attaches is when "formal charges" have been initiated or when
"the government has committed itself to prosecute." Moran v.
_____
Burbine, 475 U.S. 412, 430-32 (1986); Gouveia, 467 U.S. at 189;
_______ _______
Kirby, 406 U.S. at 689. "By its very terms, [the Sixth
_____
Amendment] becomes applicable only when the government's role
shifts from investigation to accusation. For it is only then
that the assistance of one versed in the 'intricacies . . . of
law,' . . . is needed to assure that the prosecution's case
encounters 'the crucible of meaningful adversarial testing.'"
Moran, 475 U.S. at 430 (1986) (quoting United States v. Cronic,
_____ _____________ ______
466 U.S. 648, 656 (1984)).
In the present case, state officials had not brought
any formal charges against Roberts for drunk driving at the time
Roberts refused to take the blood/alcohol test. The first state
action that could conceivably resemble a formal charge, the
filing of the criminal complaint against Roberts for OUI, did not
occur until after Roberts refused to submit to the test. Thus,
at the point when Roberts was denied his request to speak with
his attorney, the government had not yet committed to prosecuting
him for OUI, nor had the government shifted its role from that of
investigation to accusation. We find, therefore, that Roberts'
right to counsel had not attached at the time of the alleged
violation of his Sixth Amendment rights. See McVeigh v. Smith,
___ _______ _____
872 F.2d 725 (6th Cir. 1989) (finding that the Supreme Court
-8-
rejected the argument that a suspect's right to counsel attaches
prior to taking a blood alcohol test in Nyflot v. Minnesota
______ _________
Comm'r of Public Safety, 474 U.S. 1027 (1985), in which the
_________________________
Supreme Court dismissed an appeal raising the right to counsel
argument for lack of substantial federal question); Langelier v.
_________
Coleman, 861 F.2d 1508, 1510 n.3 (11th Cir. 1988) (noting right
_______
to counsel had not yet attached when suspect was asked to take a
blood/alcohol test).
We recognize the possibility that the right to counsel
might conceivably attach before any formal charges are made, or
before an indictment or arraignment, in circumstances where the
"'government had crossed the constitutionally significant divide
from fact-finder to adversary.'" United States v. Larkin, 978
______________ ______
F.2d 964, 969 (7th Cir. 1992), cert. denied, 113 S. Ct. 1323
____ ______
(1993) (quoting United States Ex Rel. Hall v. Lane, 804 F.2d 79,
__________________________ ____
82 (7th Cir. 1986)). Such circumstances, however, must be
extremely limited and, indeed, we are unable to cite many
examples. See Larkin, 978 F.2d at 969 (citing Bruce v.
___ ______ _____
Duckworth, 659 F.2d 776, 783 (7th Cir. 1981), for the proposition
_________
that the government may not intentionally delay formal charges
for the purpose of holding a lineup outside the presence of
counsel). Overall, Supreme Court jurisprudence on the Sixth
Amendment appears to allow for few exceptions to the bright-line
rule that the right to counsel does not attach until the
government initiates official proceedings by making a formal
charge. See United States v. Heinz, 983 F.2d 609, 612-13 (5th
___ _____________ _____
-9-
Cir. 1993) (interpreting Gouveia, 467 U.S. at 187-190, and other
_______
Supreme Court precedent as establishing a strictly formal test
for determining the initiation of judicial proceedings as opposed
to a more functional test based on whether the government had
taken on an adversarial stance towards the defendant or whether
the government had focussed its investigation on the defendant);
see also Moran, 475 U.S. at 431 ("The clear implication of the
________ _____
holding [in Maine v. Moulton, 474 U.S. 159 (1985)], and one that
_____ _______
confirms the teaching of Gouveia, is that the Sixth Amendment
_______
right to counsel does not attach until after the initiation of
formal charges.") (emphasis added).
______________
Roberts asserts that the special circumstances of this
case establish a Sixth Amendment right to counsel. According to
Roberts, the mandatory sentencing consequences of refusing to
take the blood/alcohol test, combined with the misleading
information provided by Maine regarding the consequences that
would arise from his refusal to take the test and the denial of
Roberts' request to call his attorney to clear up the
misunderstanding, somehow transformed the normally investigatory
testing procedure into an adversarial, quasi-prosecutorial,
sentencing proceeding. Appealing as this argument may be, we
must reject it. Whatever limited circumstances may exist in
which the right to counsel attaches prior to a formal charge, it
cannot include the circumstances in the present case because the
police were still waiting for the outcome of their investigation
-- either from the results of the blood/alcohol test or from the
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fact of defendant's refusal to submit to the test -- before
deciding whether or not to bring charges against the defendant.
The government had not yet crossed the constitutional divide
between investigator and accuser. As a threshold matter, the
right to counsel had not yet attached when Robert's request for
counsel was denied, and, therefore, we cannot reach the further,
and admittedly close, question of whether or not Roberts decision
to take the blood/alcohol test involved a "critical stage" of the
prosecution at which the right to have the advice of counsel
would otherwise be constitutionally required.
B. Due Process
B. Due Process
___________
We do find merit, however, in Roberts' claim that
Officer Main's actions violated Roberts' right to due process.
The combination of circumstances in this case presents a unique
situation in which the state of Maine failed to meet the
requirements of fundamental fairness.
The Due Process Clause of the Constitution prohibits
deprivations of life, liberty, or property without "fundamental
fairness" through governmental conduct that offends the
community's sense of justice, decency and fair play. Moran v.
_____
Burbine, 475 U.S. 412, 432-34 (1986); United States v. Russell,
_______ _____________ _______
411 U.S. 423, 432 (1973); Hannah v. Larche, 363 U.S. 420, 442
______ ______
(1960); Rochin v. California, 342 U.S. 165, 172-73 (1952); United
______ __________ ______
States v. Barnett, 989 F.2d 546, 560 (1st Cir.), cert. denied,
______ _______ ____ ______
114 S. Ct. 148 (1993). "Due process" is a flexible concept --
"the processes required by the Clause with respect to the
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termination of a protected interest will vary depending upon the
importance attached to the interest and the particular
circumstances under which the deprivation may occur." Walters v.
_______
National Ass'n of Radiation Survivors, 473 U.S. 305, 320 (1985).
______________________________________
The test for determining whether state action violates the Due
Process Clause, formally set out in Mathews v. Eldridge, 424 U.S.
_______ ________
319, 335 (1976), requires a court to consider: (1) the private
interest that will be affected by the government's action; (2)
the risk of an erroneous deprivation of such interest through the
existing procedure and the probable utility of additional or
substitute procedural safeguards; and (3) the government's
interest in adhering to the existing procedure, including fiscal
and administrative burdens that additional procedures might
entail. Id.; Walters, 473 U.S. at 321; Mackey v. Montrym, 443
__ _______ ______ _______
U.S. 1, 10 (1979); In Re Nineteen Appeals Arising out of San Juan
______________________________________________
Dupont Plaza Hotel Fire Litig., 982 F.2d 603, 611 (1st Cir.
_________________________________
1992).
We find that Officer Main's actions in this case
deprived Roberts of liberty in a manner lacking in fundamental
fairness and offensive to the universal sense of fair play. The
police officer took Roberts into custody and, while Roberts was
handcuffed at the police station, presented him with a choice
that had irrevocable sentencing consequences involving a
mandatory period of incarceration. Roberts was asked to take a
blood/alcohol test and told that if he refused to submit to the
test, his drivers license would be suspended and the fact of his
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refusal could be used against him at trial. Roberts was then
informed that he had been "advised of the consequences of failure
to comply." This statement was misleading because there is at
least one additional consequence of failing to consent to a test:
a 48-hour term of incarceration. Roberts was never told that his
refusal to take the test could also result in a mandatory two-day
jail sentence if he were to be convicted of driving under the
influence of alcohol. Thus, Roberts was not informed of "the
___
consequences" of failing to comply with the "implied consent"
procedure.
Following Officer Main's reading of the "implied
consent" form, Roberts asked to call his attorney before deciding
whether or not to take the blood/alcohol test. Officer Main
denied this request, despite the apparent absence of any
inconvenience or unreasonable delay in allowing the phone call.
If allowed to speak with his attorney, Roberts could have been
informed of the sentencing consequences of a decision not to
submit to the blood/alcohol test, thus clarifying the misleading
information provided by Maine's "implied consent" form. The
attorney could have also provided advice to Roberts at the only
point during the process for determining Roberts' sentence when
the mandatory consequences of the two-day term of incarceration
could still be avoided. The attorney's advice would come too
late at the sentencing hearing itself, at which time there is
nothing the attorney can do to mitigate or rebut the imposition
of the 48-hour jail term. Roberts thus had to make a decision
-13-
with irrevocable consequences for his sentence after the state
provided him with inaccurate information with which he was
expected to make that decision. Under this combination of
circumstances, it is incumbent upon the state to honor a
reasonable request to call an attorney. Refusing to provide this
simple safeguard violated Roberts' right to due process.
A review of the Mathews factors confirms our
_______
conclusion. The liberty interest deprived by the state's actions
in this case is Roberts' freedom from the mandatory two-day jail
sentence imposed because of the refusal to take a blood/alcohol
test. Roberts' interest in freedom from incarceration is
certainly worthy of substantial due process protections. See,
___
e.g., United States v. Salerno, 481 U.S. 739, 750 (1987);
____ ______________ _______
Addington v. Texas, 441 U.S. 418, 423-25 (1979). In addition,
_________ _____
Maine placed Roberts in a position where he was forced to make a
decision between cooperating with investigators and suffering
mandatory and irrevocable consequences for his subsequent
sentencing. Cooperation in this case would probably have sealed
Roberts' fate at trial but it also would have avoided certain
harsher penalties. Roberts thus faced a situation similar in
some respects to plea bargaining. As such, Maine's "implied
consent" procedure implicates Roberts' right to receive fair
treatment by the prosecution during plea bargaining. Santobello
__________
v. New York, 404 U.S. 257, 261-62 (1971); Brady v. United States,
________ _____ _____________
397 U.S. 742, 756-58 (1970); United States v. Bouthot, 878 F.2d
_____________ _______
1506, 1511 (1st Cir. 1989).
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Moreover, the mandatory sentencing consequences
stemming from Roberts' refusal to take the blood/alcohol test
injects important elements of sentencing procedure into the
police investigation of a suspected OUI offense. Because Roberts
can do nothing to contest the imposition of a 48-hour term of
incarceration at the sentencing hearing itself, the critical
point for calculating a key portion of Roberts' sentence
essentially occurs at the time Roberts is requested to take the
blood/alcohol test. Thus, this case implicates Roberts' interest
in fair sentencing procedures. Gardner v. Florida, 430 U.S. 349,
_______ _______
358 (1977); United States v. Doe, 655 F.2d 920, 927-28 (9th Cir.
_____________ ___
1980). We find, therefore, that Maine's actions towards Roberts
implicate important liberty interests deserving of substantial
due process protection.
Turning to the second consideration under Mathews, the
_______
risk of erroneous deprivation of the liberty interest and the
probable value of an additional procedural safeguard, we find a
strong due process justification for allowing Roberts to contact
his attorney. Although Officer Main's refusal to allow Roberts
to call his attorney did not significantly increase the risk that
Roberts would be erroneously convicted of an OUI offense, the
officer's conduct greatly increased the risk that a two-day jail
sentence would be imposed on Roberts as a result of a decision
made in reliance upon misleading information. The erroneous
deprivation thus consists of attaching sentencing consequences to
a choice that an individual may not have made had the state
-15-
provided him or her with accurate information. In other words,
absent the inaccurate information, the two-day jail term may not
have been imposed.
We are faced here with a unique situation in which the
sentencing consequences of incarceration are imposed not so much
for the substantive criminal conduct itself but for the separate
volitional act of refusing to cooperate with the investigation of
that conduct. As such, an erroneous deprivation of liberty can
result from a suspect's behavior under rather dubious
circumstances, if not false pretenses, created by the state. In
this case, Roberts might have chosen to cooperate and thus avoid
the mandatory term of incarceration if he had been allowed to
speak with his lawyer and correct the inaccurate information he
received. Once Roberts' decision was made, however, there was
nothing the attorney or judge could do at sentencing to remedy
Roberts' tainted decision.
On the other side of the coin, there is much that
allowing Roberts to call his attorney could do to safeguard
against the type of erroneous deprivation of liberty at risk in
this case. Plainly and simply, Roberts' attorney could have
informed Roberts of the additional sentencing consequences of
refusing to take the blood/alcohol test, thus correcting the
state's misleading information. The attorney could also counsel
Roberts on the advisability of cooperating to avoid the mandatory
two-day sentence. This is the only point at which such counsel
has any value; once the decision whether or not to submit to the
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test is made, the die is cast, and nothing the attorney can do at
sentencing will mitigate the effect of the two-day sentence.
The present situation thus presents concerns analogous
to those expressed by the Supreme Court in many of its right to
counsel cases. See Wade, 388 U.S. at 224 (affording right to
___ ____
counsel at critical pre-trial stages of proceedings "where the
results might well settle the accused's fate and reduce the trial
itself to a mere formality"); Ash, 413 U.S. at 315-16 (noting
___
that "there were times when the subsequent trial would cure a
one-sided confrontation between prosecuting authorities and the
uncounseled defendant," rendering the absence of an attorney
acceptable, but that there were other times when an attorney was
required because there was no such "opportunity to cure defects
at trial"); Maine v. Moulton, 474 U.S. 159, 170 (1985); see also
_____ _______ ________
Mempa v. Rhay, 389 U.S. 128, 133 (1967) (reviewing holding in
_____ ____
Townsend v. Burke, 334 U.S. 736 (1948), where the absence of
________ _____
counsel during sentencing combined with false assumptions about
the defendant's criminal record was found to deprive the
defendant of due process, and noting that the counsel in that
case "'might not have changed the sentence, but he could have
taken steps to see that the conviction and sentence were not
predicated on misinformation or misreading of court records, a
requirement of fair play which absence of counsel withheld from
this prisoner.'") (quoting Townsend, 334 U.S. at 741). We
________
therefore conclude that Maine's implied consent procedure
presents a substantial risk of erroneous deprivation of liberty
-17-
and that allowing Roberts to call his attorney is likely to
alleviate the risk and, as such, is a valuable procedural
safeguard.
Finally, we consider the state's interest in refusing
to allow Roberts to call his attorney, including any
administrative and fiscal burdens such a phone call would entail.
There is nothing in the record to indicate that allowing Roberts
to call his lawyer from the police station would impose on the
police any meaningful burden whatsoever. On the contrary, Maine
law allows for suspected drunk drivers to request their own
physician to conduct the blood/alcohol test if reasonably
available. 29 M.R.S.A. 1312. Maine thus already contemplates
making reasonable accommodations for drunk driving suspects.
Allowing a simple phone call to an attorney is much less
intrusive on the implied consent process than arranging a medical
procedure with the suspect's doctor.
Given the transient nature of the evidence in drunk
driving cases -- that is, the blood/alcohol level in a suspect's
blood -- the police may certainly proceed with the implied
consent procedure if a delay would affect the test results or
otherwise interfere with the testing procedure. The police may
refuse to wait for a suspect who is unable to reach an attorney
within a reasonable period of time or refuse to undertake time-
consuming and burdensome efforts to contact an attorney who is
not immediately available. There is no indication, however, that
such was the case here. Officer Main testified that he did not
-18-
allow Roberts to call his attorney because Roberts was
uncooperative and shouting obscenities. We see no relevance of
this fact to any state interest in refusing to allow Roberts to
make a phone call before deciding whether or not to take the
blood/alcohol test. We therefore find no significant state
interest in refusing to allow Roberts to call his attorney that
would justify what we consider to be a denial of due process.
To clarify, we do not discount Maine's interest in
imposing an implied consent procedure to encourage the voluntary
testing of drunk drivers, nor do we have any quarrel with Maine's
desire to impose harsher penalties on those refusing to
cooperate. We see very little interest, however, in denying a
reasonable request at the police station to call an attorney,
where that call could serve to clear up misleading information
regarding the testing procedure provided by the state.
Furthermore, we do not find, in this case at least,
that a suspected drunk driver has a due process right to contact
an attorney whenever the state imposes mandatory sentencing
consequences upon the refusal of the suspect to take a
blood/alcohol test. Rather, we find that where the suspect makes
a reasonable request to contact his or her attorney and the
attorney can correct misleading information provided by the state
at a point when the suspect must make a decision that is crucial
for his or her subsequent sentencing, due process requires that
the suspect's request be honored.
We are confronted with a substantially different
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situation in this case than the one that the Supreme Court
considered in South Dakota v. Neville, 459 U.S. 553 (1983). In
____________ _______
Neville, the Supreme Court held that the Due Process Clause was
_______
not violated when a police officer failed to warn a suspected
drunk driver that his refusal to submit to a blood-alcohol test
could be used against him at trial. The Court reasoned that
because the drunk driver in that case was specifically warned
that his refusal to submit to the test would result in the
suspension of his license, the driver knew that his refusal "was
not a 'safe harbor,' free of adverse consequences." Id. at 566.
__
The Court also noted that it was "unrealistic to say that the
warnings given here implicitly assure a suspect that no
consequences other than those mentioned will occur." Id.2
__
Unlike Neville, the present case is not a simple
_______
"failure to warn" situation involving a state's withholding of
information that it was never required to provide. Rather, this
is a case in which a mandatory sentence of incarceration is
attached to a suspect's decision to take a blood/alcohol test,
where the suspect is given misleading information that indicates
no such sentence exists; and further, where that suspect is
denied permission to speak to an attorney who could have cleared
up the misunderstanding and who could have provided advice at the
____________________
2 The instructions given to the defendant in Neville contained
_______
no language resembling the misleading statement in this case that
the suspect had been "advised of the consequences." The
instructions in Neville merely informed the suspect that if he
_______
refused to take a blood/alcohol test, his license could be
suspended. The suspect was then merely asked: "Do you understand
what I told you?" Neville, 459 U.S. at 555 n.2.
_______
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only point where the sentencing consequences could be avoided.
The Supreme Court did not address the due process implications of
these circumstances. Instead, Neville dealt with a quite
_______
different issue: the due process implications of a state's
failure to warn about the use at trial of a suspect's refusal to
take a blood/alcohol test. The differences between the two cases
are stark.
First, Neville considered an interest of much lower
_______
magnitude than Roberts' liberty interest in freedom from
incarceration. As the Supreme Court found, the use of the fact
that a suspect refused to submit to a test as evidence against
that suspect at trial does not implicate the suspect's Fifth
Amendment right against self-incrimination. Id. at 558-64.
__
Thus, the suspect in Neville had no protectable liberty interest
_______
beyond the general right to a fair trial, a right which faced
little risk of erroneous deprivation in that case. Neville did
_______
not involve a mandatory sentence that risked depriving an
individual of the important liberty interest of freedom from
incarceration, a liberty interest that is involved here.
Second, the consequence about which Maine failed to
warn Roberts in the present case is irrevocable and irrebuttable,
making the suggested procedural safeguard -- permission to call
an attorney -- crucial to protecting Roberts' liberty interest.
In the Neville case, however, the consequences involved an
_______
evidentiary disadvantage that could be rebutted, mitigated or
otherwise explained by counsel at trial. The blood/alcohol test,
-21-
therefore, was not the only point in Neville at which a
_______
procedural safeguard would have had any value.
Third, there is an additional element of unfairness in
this case, not found in Neville, due to the misleading nature of
_______
the instructions given to Roberts. In the Neville case, the
_______
Supreme Court specifically noted that the suspect was given no
implicit assurances that he was being warned of all the
consequences of refusing to submit to testing, id. at 566,
__
whereas in this case, Roberts was told that he had been advised
of "the consequences," incorrectly implying that there were no
additional consequences. As a result, Roberts faced a greater
risk of erroneous deprivation of his liberty than the suspect in
Neville.
_______
Due process may not require warnings of the
consequences of refusing to take a blood/alcohol test, and it may
not require a full right to counsel for suspects facing the
decision whether or not to submit to testing. Under the
circumstances of this case, however, as a matter of fair play and
decency, due process does require that Roberts be given a
reasonable opportunity to call his attorney before deciding on
whether to be tested.
CONCLUSION
CONCLUSION
For the foregoing reasons, we find that the mandatory
48-hour jail sentence imposed on Roberts pursuant to 1312-
B(2)(B)(4) violates due process. The infirmities in the
procedures surrounding Roberts' arrest did not, however, taint
-22-
his underlying convictions for drunk driving and driving with a
suspended license. Accordingly, the judgment of the district
___________________________________________
court is reversed and the case is remanded to the district court
_________________________________________________________________
with instructions to issue a writ of habeas corpus upon the
_________________________________________________________________
failure of the State of Maine to vacate the mandatory 48-hour
_________________________________________________________________
jail sentence imposed pursuant to 1312-B(2)(B)(4) and to accord
_________________________________________________________________
Roberts a sentencing hearing at which no minimum sentence is
_________________________________________________________________
mandated.
________
"Concurrence follows"
-23-
CYR, Circuit Judge (Concurring). Although I am pleased
CYR, Circuit Judge
_____________
to concur in the result reached in the ably crafted majority
opinion, I write separately on the due process claim.
On direct appeal, the Maine Supreme Judicial Court
("Law Court"), citing State v. Plante, 417 A.2d 991, 994 (1980)
_____ ______
(pre-Neville), erroneously concluded that "the right to a warning
_______
of the consequences of refusing a chemical test is not one of
constitutional dimensions." State v. Roberts, 609 A.2d 702, 703
_____ _______
(Me. 1992).3 The district court below likewise erred in ruling
that a "requirement that a driver submit to a chemical test does
not implicate the due process clause of the Constitution,"
_________
Roberts v. Maine, No. 93-0154-B, slip op. at 3 (D. Me. Sept. 24,
_______ _____
1993) (magistrate-judge's proposed findings and recommendation),
aff'd, slip op. at 1 (D. Me. Oct. 27, 1993) (emphasis added).
_____
Consequently, neither court reached Roberts' due process claim.
The Law Court premised its conclusion in large part on
South Dakota v. Neville, 459 U.S. 553 (1983). See Roberts, 609
_____________ _______ ___ _______
A.2d at 703 ("the [Neville] Court reasoned that allowing the
_______
suspect to choose whether to submit to testing is 'a matter of
____________________
3 Under 28 U.S.C. 2254, we accord de novo review to state
__ ____
court rulings on federal constitutional issues, Wellman v. Maine,
_______ _____
962 F.2d 70, 72 (1st Cir. 1992), as well as to mixed questions of
fact and law, id. ("Federal court may give different weight to
___
the facts as found by the state court and may reach a different
conclusion in light of the legal standard") (quoting Sumner v.
______
Mata, 455 U.S. 591, 597 (1982)). See also Cleveland Bd. of Educ.
____ ___ ____ ______________________
v. Loudermill, 470 U.S. 532, 541 (1985) ("minimum procedural
__________
requirements are a matter of federal law, they are not diminished
by the fact that the State may have specified its own procedures
that it may deem adequate for determining the preconditions to
adverse official action.").
-24-
legislative grace' bestowed by the state legislature and thus,
not subject to constitutional protections."). However, the
statement relied on by the Law Court related to Neville's Fifth
Amendment self-incrimination claim, not the due process claim.
See infra at pp. 24-25. The Neville Court explicitly qualified
___ _____ _______
its statement so as to obviate any intimation that penalties for
refusing to submit to chemical testing are beyond the scope of
the Due Process Clause. Neville, 459 U.S. at 560 ("Such penalty
_______
for refusing to take a blood-alcohol test is unquestionably
legitimate, assuming appropriate procedural safeguards.")
________ ___________ __________ __________
(emphasis added).4
The constitutional underpinnings for the more recent
Supreme Court pronouncements on "implied consent" procedures stem
from Schmerber v. California, 384 U.S. 757 (1966). See Nyflot v.
_________ __________ ___ ______
Minnesota Comm'r of Pub. Safety, 474 U.S. 1027, 1027-29 (1984)
________________________________
(summary dismissal for want of substantial federal question)
(opinion of White, J., dissenting from summary dismissal);
Neville, 459 U.S. 553; see also Mackey v. Montrym, 443 U.S. 1
_______ ___ ____ ______ _______
(1979); Dixon v. Love, 431 U.S. 105 (1977); Bell v. Burson, 402
_____ ____ ____ ______
____________________
4 Indeed, the Plante case itself, upon which the Law Court
______
directly relied in Roberts, 609 A.2d at 703, involved a self-
_______
incrimination claim as well. See Plante, 417 A.2d at 994.
___ ______
Viewed in context, the statement that an OUI suspect's "right to
refuse" testing is "simply a matter of grace bestowed by the . .
. Legislature," Neville, 459 U.S. at 565, was meant merely to
_______
emphasize that the right to refuse testing, unlike the right to
_____ __ ______ ______ ___ _____ __
silence underlying Miranda warnings, is not of "constitutional
_______ _______
dimension." Id. Thus, Neville in no sense eroded the "constit-
___ _______
utional dimension" inherent in the traditional procedural safe-
guards attending deprivations of protected liberty interests.
Id. at 560. See Mackey v. Montrym, 443 U.S. 1, 17-19 (1979).
___ ___ ______ _______
-25-
U.S. 535, 539 (1971); Breithaupt v. Abram, 352 U.S. 432 (1957).
__________ _____
Schmerber held the Fifth Amendment privilege against self-in-
_________
crimination inapplicable because blood-alcohol level testing
("chemical testing"), albeit a Fourth Amendment search and
seizure, simply yields real or physical evidence as distinguished
from "testimonial" evidence. Schmerber, 384 U.S. at 765.
_________
Accordingly, the State may force a nonconsenting suspect to
_____
submit to a reasonable chemical test under exigent circumstances,
without a warrant, provided there is probable cause to arrest the
suspect for "operating under the influence" ("OUI"). Id. at 766-
___
72. And since alcohol and drugs are evanescent substances
inexorably metabolized by the body, the "exigent circumstances"
requirement is almost invariably met by the urgent need to test
before a warrant can be obtained. Id. at 770-71.
___
Years later, in Neville, the Supreme Court rejected two
_______ ___
distinct constitutional challenges to an "implied consent"
________
statute which empowered South Dakota to introduce into evidence
an OUI suspect's refusal to submit to chemical testing. First,
the Court held that the Fifth Amendment right against self-
incrimination was never implicated because the State did not
__________
impermissibly coerce the refusal. Neville, 459 U.S. at 562-64.
_______
Second, and more to the present point, the Court rejected
Neville's substantive due process claim premised on Doyle v.
_____
Ohio, 426 U.S. 610 (1976). Neville, 459 U.S. at 564-66. Even
____ _______
though Neville was not warned that his refusal to submit to
chemical testing could be offered against him at trial, and
-26-
notwithstanding the fact that the police had advised him that his
silence could not be used against him, see Miranda v. Arizona,
_______ ___ _______ _______
384 U.S. 436, 467-73 (1966), the Supreme Court nevertheless found
no "misleading implicit assurances" that the refusal to be tested
would not be introduced in evidence, since "the warning that
[Neville] could lose his driver's license made it clear that
refusing the test was not a 'safe harbor,' free of adverse
consequences." Neville, 459 U.S. at 565-66. Neville thus upheld
_______ _______
the power of the State to penalize refusals to submit to chemical
testing, but explicitly conditioned its exercise on the avail-
ability of "appropriate procedural protections." Id.
___________ __________ ___________ ___
The procedural due process analysis appropriate to the
present context contrasts starkly with the substantive due
process analysis in Neville, where the only unwarned adverse
_______
consequence was that the State ultimately might be allowed to
_____
request the trier of fact, at trial, to infer that the refusal to
be tested constituted evidence of his consciousness of guilt
(intoxication). See S.D. Codified Laws 32-23-10.1. (1980)
___
("such refusal may be admissible" in evidence at trial.) In such
___ __ __________
a setting, a defendant would be afforded the full panoply of
procedural protections available at trial. First, the State's
__ _____
evidentiary proffer of the refusal to be tested would be subject
to objection by the defendant; for example, on grounds that it
did not evince the suspect's consciousness of guilt but mere con-
fusion as to his legal rights. See Fed. R. Evid. 401, 403.
___
Second, if the refusal were admitted in evidence, the defendant
-27-
would be allowed to introduce evidence to rebut any
"consciousness of guilt" inference. Finally, the trier of fact
would be permitted, and could not be required, see Carella v.
___ ___ _______
California, 491 U.S. 263, 265 (1989) (per curiam); Sandstrom v.
__________ _________
Montana, 442 U.S. 510, 514 (1979), to infer "consciousness of
_______
guilt," but only to consider it, along with all other evidence,
in determining whether the defendant was guilty beyond a
reasonable doubt. Thus, in Neville, no unwarned consequence
_______
flowed inexorably from the refusal to be tested. All conven-
tional trial procedures for barring and rebutting the refusal
evidence remained available, including the right to defend
against it on the issue of guilt.
On the other hand, no meaningful procedure remained for
__________
Roberts to defend against the term of confinement mandated upon
conviction for OUI as a consequence of the unwarned refusal to be
tested. See Mempa v. Rhay, 389 U.S. 128, 133-34 (1967)
___ _____ ____
(sentencing is critical stage in criminal process); see also
___ ____
Palmer v. City of Euclid, 402 U.S. 544, 546 (1971) (per curiam);
______ ______________
cf. Burns v. United States, 111 S. Ct. 2182, 2187 (1991) (even
__ _____ _____________
where sentencing court is vested with explicit sentencing
discretion, sua sponte upward departure absent prior notice to
___ ______
defendant raises serious due process concerns).
Under the Maine "implied consent" procedure, see 29
___
M.R.S.A. 1312, 1312-B) (Supp. 1994) (collectively: "section
1312"), the suspect is never warned that refusal to be tested
entails a mandatory minimum sentence upon conviction for OUI. No
-28-
matter how compelling or innocent the suspect's reason for
refusing to be tested, see, e.g., Jamros v. Jensen, 377 N.W.2d
___ ____ ______ ______
119, 123 (Neb. 1985), the sentencing court must impose a minimum
term of confinement, without regard to whether either the trier
of fact or the sentencing judge ascribes the slightest "con-
sciousness of guilt" to the suspect's refusal to be tested.
Thus, in due process terms Maine's standard "implied consent"
procedure differs essentially from the process upheld in Neville,
___________ _______
particularly with respect to the absence of adequate pre-
deprivation notice and a meaningful opportunity to be heard. See
___ ___
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
______________________ __________
The State need not acquiesce in an OUI suspect's
refusal to submit to testing under an "implied consent" statute.
Schmerber, 384 U.S. at 770-71. But once it opts to allow
_________
suspects to refuse chemical testing, it may not disregard proce-
dural due process constraints under the Fourteenth Amendment by
depriving suspects of their protected liberty interest in
remaining free from incarceration, without affording either
______
adequate predeprivation notice or meaningful postdeprivation
__
process. See Loudermill, 470 U.S. at 541 ("While the legislature
___ __________
may elect not to confer [an interest], it may not
constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguards.")
The majority opinion in the present case essentially
relies on a Doyle-based substantive due process analysis, see
_____ ___
Doyle, 426 U.S. at 617-19, in concluding that it was
_____
-29-
fundamentally unfair for the State of Maine to subject Roberts to
an unwarned mandatory minimum term of confinement for refusing to
be tested. See supra pp. 10-12. Although I am in substantial
___ _____
agreement with its substantive due process analysis, particularly
that the warnings given Roberts included seriously "misleading
implicit assurances" a subject neither reached by the Law
Court nor discussed by the district court it is less clear to
me that a substantive due process analysis is appropriate
following Albright v. Oliver, 114 S. Ct. 807 (1994).
________ ______
Even though the Fourteenth Amendment affords both
substantive and procedural due process protections, the Supreme
Court cautioned in Albright that "where a particular amendment
________
provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment,
not the more generalized notion of substantive due process must
be the guide for analyzing these claims." Id. at 813. In the
___
present context, therefore, Albright appears to require at least
________
initial resort to the procedural due process jurisprudence having
_______
particular application to similar proceedings. See Mackey, 443
___ ______
U.S. at 10-19 (applying procedural due process analysis to
license suspension for refusal to submit to chemical testing).5
____________________
5 Were it otherwise, however, it should be noted that "funda-
mental fairness" was disserved in the instant case by the
presence of an important factor specifically found absent in
____________ _____ ______
Neville, 459 U.S. at 563-64. That is, the Maine "implied
_______
consent" advisory, whether by design or inadvertence, assuredly
has the effect of "subtly coerc[ing] [suspects] into choosing the
______
option [viz., refusal to be tested] that the State ha[s] no right
___
to compel, rather than offering a true choice." Id. (emphasis
____ ___
added). Cf. Roberts, 609 A.2d at 703 n.1 ("As in Neville, the
__ _______ _______
-30-
The cornerstone regimen for identifying the particular
process appropriate to deprivations of life, liberty or property
is limned in Mathews v. Eldridge, 424 U.S. 319 (1976).
_______ ________
Identification of the specific dictates
of due process generally requires
consideration of three distinct factors:
First, the private interest that will be
affected by the official action; second,
the risk of an erroneous deprivation of
such interest through the procedures
used, and the probable value, if any, of
additional or substitute procedural
safeguards; and finally, the government's
interest, including the function involved
and the fiscal and administrative burdens
that the additional or substitute
procedural requirement would entail.
Id. at 335.
___
Under section 1312-B(2)(B)(4) (1987), a person
convicted as a first-time OUI offender must serve not less than a
____ _____
two-day term of confinement if he refused to submit to chemical
____________________
warnings provided in this case were not designed to "trick" the
________
defendant into refusing a test, then using the refusal against
him at trial.") (emphasis added). As the Supreme Court excepted
such subtle coercion from the sweep of its ruling rejecting
Neville's Fifth Amendment claim against self-incrimination,
Neville, 459 U.S. at 566, this factor too would weigh heavily
_______ _______
against the Maine "implied consent" advisory under any
substantive due process analysis which may remain open following
Albright. See Albright, 114 S. Ct. at 820-21 (Souter, J.,
________ ___ ________
concurring) (due process clause affords protections not directly
addressed by more particular constitutional provision).
Under either a procedural or substantive due process analysis,
however, the State may not deprive a person of the core liberty
interest in remaining free from incarceration, without affording
either adequate advance notice or meaningful post-refusal
______ __
process, by imposing a mandatory minimum term of confinement upon
an unwarned suspect for electing to accept a state-tendered
option to refuse chemical testing. Cf. Burns, 111 S. Ct. at
__ _____
2187; Neville, 459 U.S. at 563 (noting that it is legitimate for
_______
the State to "offer [the] option of refusing the test, with the
_____ ____ ___
attendant penalties for making that choice.") (emphasis added).
_________ _________ ___ ______ ____ ______
-31-
testing. Maine alone mandates a minimum term of confinement upon
conviction for OUI after failing to submit to chemical testing,
yet inexplicably withholds from its standard "implied consent"
advisory any mention of the mandatory minimum term of confinement
attending the refusal to submit. See supra p. 3.6
___ _____
The standard advisory contemplates that the police
provide two explicit warnings before requesting an OUI suspect to
________
submit to chemical testing. First, the suspect is to be informed
that refusal to be tested will result in an administrative
suspension of motor vehicle operating privileges for not less
than six months nor more than three years. Id. 1312(1) (first
___
offense). Second, the police "should also inform the [suspect]
that the failure to comply with the duty to submit to a chemical
test is admissible in evidence" at a subsequent OUI trial. Id.
__
Although a failure so to inform the suspect does not render any
chemical-test result inadmissible, see id., no sanction omitted
___ ___
from the standard advisory can be imposed upon the accused,
except the mandatory minimum sentence at issue in this appeal.
______ ___ _________ _______ ________ __ _____ __ ____ ______
See id. 1312 (1),(2),(8).7
___ ___
____________________
6 The police are required to read a standard advisory to the OUI
suspect, see Roberts, 609 A.2d at 703, and no more, see id. at
___ _______ __ ____ ___ ___
704. The Law Court concluded that it is "without authority to
expand the warning to encompass the full range of potential
penalties," id., and we are bound by its interpretation of the
___
Maine statute, see Ortiz v. DuBois, 19 F.3d 708, 713 n.5 (1st
___ _____ ______
Cir. 1994), cert. denied, 63 U.S.L.W. 3515 (U.S. Jan. 9, 1995).
_____ ______
Thus, the omission of the mandatory minimum sentence from the
standard advisory plainly originates in section 1312.
7Section 1312 (1) states:
-32-
Among the other forty-nine states, only four impose any
___
____________________
Before any test specified is given, the
law enforcement officer shall inform the
person as to whom there is probable cause
that, if the person fails to comply with
the duty to submit to and complete the
required chemical tests at the direction
of the law enforcement officer, that
person's license. . . will be suspended
for a minimum of 6 months and may be as
long as 3 years. The officer should also
inform the person that the failure to
comply with the duty to submit to a
chemical tests (sic) is admissible in
evidence against that person at any trial
for operating under the influence of
intoxicating liquor or drugs.
No test results may be excluded as
evidence in any proceeding before any
administrative officer or court of this
State as a result of the failure of the
law enforcement officer to comply with
this prerequisite. The only effects of
the failure of the officer to comply with
this prerequisite are as provided in
subsections 2 and 8.
Section 1312(2) states in relevant part:
Any suspension in effect shall be removed
if, after hearing, it is determined that
the person who failed to submit to the
test would not have failed to submit but
for the failure of the law enforcement
officer to give either or both of the
warnings required by subsection 1.
Section 1312(8) states in relevant part:
If the law enforcement officer. . . fails
to give either of the warnings required
under subsection 1, the failure of the
person to comply with the duty to submit
to the chemical tests shall not be
admissible, except when a test was
required pursuant to subsection 11, para-
graph D [testing after an accident
involving death].
-33-
nonadministrative sanction for refusing chemical testing. Two
_________________
states, New York and New Jersey, prescribe mandatory minimum
civil fines following an adjudication in a separate proceeding,
________
based on an independent showing that the suspect failed to submit
to chemical testing. See N.Y. Veh. & Traf. Law 1194 (2)(c)
___
(1994) (separate administrative proceeding); N.J. Stat. Ann.
______________
39:4-50.4a (1994) (separate judicial proceeding). See also State
________ ___ ____ _____
v. DiSomma, 621 A.2d 55 (N.J. App. Div. 1993).8 Three states,
_______
Alaska, Minnesota and Nebraska, have made it a separate criminal
________ ________
offense to refuse to submit to chemical testing, but only if the
_______ ___ ____ __
suspect was so informed at the time the request to submit was
made. See Ak. Stat. Ann. 28.35.032 (a) (1994) ("after being
___
advised. . . that the refusal is a crime"); Minn. Stat. 169.123
(b) (1994) ("At the time the test is requested, the person shall
be informed . . . that refusal to take a test is a crime.); Neb.
Rev. Stat. 60-6,197(10) (1993) ("Any person who is required to
submit to a . . . chemical blood test . . . shall be advised of
(a) the consequences of refusing to submit to such test or tests
. . . .); see also Jamros, 377 N.W.2d at 123 (holding that
___ ____ ______
defendant cannot be convicted unless forewarned that refusal to
submit is separate crime).
____________________
8 Under New Jersey law, the mandatory $250 civil fine is to be
imposed following a separate judicial proceeding, but only if the
suspect was so informed prior to refusing testing. N.J. Stat.
Ann. 39:4-50.2. Under New York law, a mandatory minimum $250
fine is to be imposed, following a separate administrative
proceeding, provided the suspect was forewarned that refusal to
be tested may result in a license suspension. N.Y. Veh. & Traf.
Law 1194 (2) (c).
-34-
In sum, then, section 1312, unlike the "implied
consent" procedure in any other state, neither criminalizes the
_______
refusal to submit to chemical testing nor contemplates that the
___
suspect be forewarned that a criminal penalty, let alone a
mandatory minimum term of confinement, may attend the refusal.
Absent adequate notice that particular conduct has been
criminalized, a person may not be convicted or punished for it.
See Bouie v. City of Columbia, 378 U.S. 347, 361-63 (1964)
___ _____ _________________
(failure to afford notice that statute criminalized particular
activity); Wright v. Georgia, 373 U.S 284, 293 (1963) (same);
______ _______
Lambert v. California, 355 U.S. 225, 227 (1957) ("Notice is
_______ __________
required before property interests are disturbed, before assess-
ments are made, before penalties are assessed."). As a general
rule, of course, publication of a criminal statute affords
adequate notice to the public at large. Cheek v. United States,
_____ _____________
111 S. Ct. 604, 609 (1991) ("Based on the notion that the law is
definite and knowable, the common law presumed that every person
knew the law."). And, of course, the common-law rule that
every person is presumed to know the law not only applies in
_______
criminal cases, United States v. International Mins. & Chem.
______________ ____________________________
Corp., 402 U.S 558, 563 (1970), but has prompted little concern
_____
in the usual course.
The common-law rule would be perverted, however, were
it used to shield from constitutional challenge a deceptive State
advisory that is delivered directly to the individual suspect and
implicitly undermines any constructive notice presumptively
-35-
afforded by publication. See Raley v. Ohio, 360 U.S. 423, 438-39
___ _____ ____
(1959); see also Griffin v. Wisconsin, 483 U.S. 868, 875 n.3
___ ____ _______ _________
(1987) (citing Lambert, 335 U.S. at 228) ("If the regulation in
_______
question established a standard of conduct to which the
probationer had to conform on pain of penalty -- e.g. a
restriction on his movements -- the state court could not
___ _____ _____ _____ ___
constitutionally adopt so unnatural an interpretation of the
________________ _____ __ _________ __ ______________ __ ___
language that the regulation would fail to provide adequate
________ ____ ___ __________ _____ ____ __ _______ ________
notice.") (emphasis added). Accordingly, in my view,
______
constructive notice by publication cannot insulate from proce-
dural due process challenge the deceptive assurances the standard
"implied consent" form instructs the police to communicate
directly to the suspect immediately prior to the decision to
refuse to submit to chemical testing. See Raley, 360 U.S. at
___ _____
438-39.
The Supreme Court made clear in Neville, 459 U.S. at
_______
566, that courts should be realistic in their assessment of the
_________
context in which the allegedly misleading assurances are communi-
cated to the suspect. It would be unrealistic in the extreme to
suggest that a suspect in custody, whose only actual knowledge
______ _________
comes directly from the police in the form prescribed by law,
nonetheless must be deemed on notice that the police advisory
incorrectly states the actual consequences of refusing to be
______
tested.9 See Raley, 360 U.S. at 438-39 (Although the Commission
___ _____
____________________
9 A compelling public interest normally warrants invoking the
common-law presumption of constructive notice based on
publication; quite simply, there is no practicable alternative.
-36-
gave erroneous advice to the witnesses, "the fact remains that at
the inquiry [it was] the voice of the State most presently
____ _________
speaking to the appellants.") (emphasis added); see also supra
________ __ ___ __________ ___ ____ _____
notes 8 & 9. Implicit in any such unrealistic assessment is the
premise that a suspect in custody denied access to counsel and
totally dependent upon the State for the integrity of the implied
consent advisory should be presumed to have had not merely
constructive notice, but the requisite actual knowledge of the
____________ ______ ______ _________
procedural provisions of the "implied consent" statute that alone
_____
might alert him, but see infra note 13, to the criminal sanction
_____ ___ ___ _____
attendant to a refusal to submit to testing. See supra note 5.
___ _____
The standard "implied consent" advisory, naturally
interpreted, see Griffin, 483 U.S. at 875, n.3, realistically and
___ _______
in context, see Neville, 459 U.S. at 566, undermines whatever
___ _______ __________
constructive notice might normally be presumed from mere publica-
tion of section 1312. See Raley, 360 U.S. at 438-39.10 The
___ _____
____________________
See International Mins. & Chem. Corp., 402 U.S. at 563 ("The
___ ___________________________________
principle that ignorance of the law is no defense applies whether
the law be a statute or a duly promulgated and published regula-
tion.") But where the only purpose served by the presumption is
to perpetuate a seriously flawed "implied consent" advisory that
is inherently unfair to the suspect and counterproductive to any
legitimate State interest, due process must be first served. See
__________ ___
infra pp. 40-43.
_____
10 In Raley, certain witnesses were advised by the Ohio Un-
_____
American Activities Commission, a creature of the Ohio
Legislature, that they were entitled to assert a state-created
privilege against self-incrimination. Raley, 360 U.S. at 424-25.
_____
The Commission advisory was inaccurate, however, as an Ohio
statute conferred automatic transactional immunity upon witnesses
in return for their testimony. Id. at 431 (quoting Ohio Rev.
___
Code 101.44). After the witnesses were convicted of criminal
contempt of the Ohio Legislature for refusing to answer questions
put by its Commission, id. at 432, the United States Supreme
___
-37-
Court in Raley concluded that certain witnesses had been
_____
convicted without due process "for exercising a privilege which
the State clearly had told [them] was available . . . ." Id. at
____ ___
438 (emphasis added). The Court even reversed the conviction of
another witness, Brown, who was never advised that a privilege
_____ _______
existed, but whose attempts to assert privilege had been
facilitated by the Commission.11 Id. at 430. See Neville, 459
__ ___ _______
U.S. at 566 (leaving open the possibility that the State might
"unfairly trick" a person with an "implicit promise"); cf. Cox v.
__ ___
Louisiana, 379 U.S. 559, 571 (1965) (vacating convictions, as
_________
violative of procedural due process, on grounds that defendants
had been advised by police officials that picketing was permitted
at the arrest site).
Similarly, the standard "implied consent" advisory
challenged by Roberts conveys not merely a "mixed message," see
___
United States v. Smith, 940 F.2d 710, 715 (1st Cir. 1991), but
_____________ _____
one likely to befuddle a Philadelphia lawyer. While it requires
the police to advise the suspect that he has the duty to submit
to testing, it also requires that the suspect be told that he may
elect not to submit to testing, subject only to certain
____________________
Court set aside their convictions as violative of the Due Process
Clause of the Fourteenth Amendment. Id. at 437.
___
11 Significantly, the Commission permitted Brown to utilize a
"shorthand" method for claiming privilege, id. at 430-31 ("the
___
Chairman's concern [as to whether Brown was asserting privilege]
is inexplicable on any other basis than that he deemed the
privilege available at the inquiry, and his statements would tend
to create such an impression in one appearing at the inquiry"),
without informing him that the claim was invalid, id. at431-32.
___
-38-
administrative and evidentiary consequences. Although it is
conceivable that "lesser included" sanctions for refusing testing
______
might be encompassed within Neville's "no safe harbor" rationale,
_______
see Neville, 459 U.S. at 565-66, Maine's standard advisory could
___ _______
only be salvaged on the counterintuitive theory that notice of
the lesser sanction should be deemed to encompass the greater
_______
both in terms of severity and constitutional dimension thereby
abandoning the central constitutional concern for meaningful
__________
process. See Armstrong v. Manzo, 380 U.S. 545, 551 (1965) (due
___ _________ _____
process clause envisions that the process due be accorded "at a
meaningful time and in a meaningful manner"); Raley, 360 U.S. at
_____
438; cf. United States v. Cardiff, 344 U.S. 174, 176-77 (1952)
__ _____________ _______
("We cannot sanction taking a man by the heels for refusing to
grant the permission which this Act on its face apparently gave
him the right to withhold. That would be making an act criminal
without fair and effective notice.") (overturning criminal
conviction for refusing admittance to government inspector in
reliance on regulatory provision that appeared to confer right to
refuse).12
____________________
12 The Law Court observed that 1312 was not designed to trick
________
Roberts into refusing to be tested. Roberts, 609 A.2d at 703
_______
n.1, ("As in Neville, the warnings provided in [Roberts'] case
_______
were not designed to "trick" the defendant into refusing a test,
then using the refusal against him at trial.") Supreme Court
case law makes clear, however, that where an "established state
procedure" deprives a person of a protected liberty interest
without appropriate safeguards, a violation of procedural due
process obtains. See Logan v. Zimmerman Brush Co., 455 U.S. 422,
___ _____ ___________________
436 (1982); see also Raley, 360 U.S. at 438 ("While there is no
___ ____ _____
suggestion that the Commission had any intent to deceive the
appellants, . . . to sustain the judgment of the Ohio Supreme
Court on such a basis after the Commission had acted as it did
-39-
Although the standard "implied consent" advisories on
the administrative (license suspension) and evidentiary
(admission of test refusal) sanctions for refusing testing afford
fair notice that refusal is "not a safe harbor", Neville, 459
_______
U.S. at 566, Neville does not insulate from constitutional
_______
challenge state-prescribed advisories that actively instigate the
natural and realistic interpretation that no sanction more
serious than the warned sanctions will attach to the suspect's
refusal to submit to testing.13 See, e.g., Raley, 360 U.S. at
___ ____ _____
425. Furthermore, by instructing the police to bait the "no-
____________________
would be to sanction the most indefensible sort of entrapment by
the State convicting a citizen for exercising a privilege
which the State clearly had told him was available to him.")
13 The standard "implied consent" advisory presents suspects
with a deceptive choice in two vital respects. First, the
suspect is never informed of the most serious, unmitigable, and
irremediable sanction for refusing to be tested. Second, were
the State to choose to force testing upon the suspect not-
withstanding his refusal, it is far from clear that the "option"
of refusal would avail the suspect anything other than a
mandatory minimum sentence. Compare Me. Rev. Stat. Ann. tit. 29,
_______
1312 (1987) with Me. Rev. Stat. Ann. tit. 29, 1312(2) (Supp.
____
1985-86).
Unlike the defendant in Smith, 940 F.2d at 715 (rejecting
_____
entrapment-by-estoppel claim), there is no suggestion that
Roberts had any knowledge that the "no-test" option tendered by
_________
the arresting officer was punishable by a mandatory term of
confinement. The Smith court reasoned that an alleged "mixed
_____
message" from a police officer "could not have reasonably invited
[the defendant's] reliance. . ." because it was never claimed
that the officer informed Smith that his conduct was lawful. Id.
__
at 715. In the present case, however, reliance upon the
deceptive advisory was plainly reasonable. The alternative
conclusion would be either that the information actually provided
the suspect at the scene is immaterial, but see id., or that
___ ___ __
constructive notice of the statutory language trumps the
knowledge actually acquired by the suspect from the police
officer at the scene. But see Raley, 360 U.S. at 438-39.
___ ___ _____
-40-
test" option with the implicit assurance that "the consequences"
for refusing chemical testing are noncriminal in nature, see
___
supra pp. 29-30, the standard advisory seems well suited to snare
_____
even the most wary suspect. After all, rarely in the experience
of courts, let alone ordinary citizens, are law enforcement
officers cast as exclusive advisors to custodial suspects
concerning a state-tendered option not to perform an implied
___
duty, and then instructed to warn individual suspects of the
noncriminal sanctions for abjuring their duty, without mentioning
_______ __________
the criminal consequences. Under no natural interpretation of
___ ________ ____________
the standard advisory is it fair to say that a suspect is
afforded meaningful pre-refusal notice of the mandatory minimum
__________ ___
sentence.14 See Raley, 360 U.S. at 438-39; cf. Reich v.
___ _____ ___ _____
Collins, 115 S. Ct. 547, 550-51 (1994) (denial of procedural due
_______
process results where statute, naturally read, allowed citizen
choice between predeprivation or postdeprivation challenge to tax
assessment, but state supreme court disallowed postdeprivation
review after citizen had elected to prepay tax assessment). A
coordinate procedural safeguard under the Due Process Clause
dictates that any opportunity to be heard shall be provided "at a
meaningful time and in a meaningful manner." Armstrong, 380 U.S.
_________
____________________
14 Moreover, under the rule of lenity, any ambiguity in the
standard "implied consent" advisory must be resolved in favor of
the accused. See United States v. Kozminski, 487 U.S. 931, 952
___ _____________ _________
(1988) (identifying purposes underlying rule of lenity as: the
promotion of fair notice "to those subject to the criminal laws,
minimiz[ing] the risk of selective or arbitrary enforcement, and
. . . maintain[ing] the proper balance between [the legislature],
prosecutors and courts. . . ."
-41-
at 552. As there is no meaningful post-refusal opportunity to be
__________ ____
heard on the imposition of the mandatory minimum sentence under
section 1312, and no suggestion that the state sentencing court
contemplated a two-day term of confinement irrespective of the
mandated minimum imposed pursuant to section 1312-B(2)(B)(4), I
can only conclude that the process accorded Roberts violated
fundamental notions of procedural due process.15
Finally, the analyses contemplated by the Supreme Court
in Mathews, 424 U.S. at 335, clearly indicate that all
_______
appropriate process can be accorded under section 1312 simply by
adding a few words to the standard "implied consent" advisory.
(i) The Private Interest
(i) The Private Interest
____________________
The core liberty interest Roberts asserts in remaining
free from incarceration is entitled to full procedural due
process protection. See Board of Regents v. Roth, 408 U.S. 564,
___ ________________ ____
571-72 (1972); Bouie, 378 U.S. at 362 (overturning criminal
_____
____________________
15 It is neither plausible to suggest, nor discernible from the
record, that the mandatory minimum term of confinement was
imposed simply as punishment for the underlying OUI offense.
First, the mandatory minimum sentence was not preordained by the
OUI conviction but by the unwarned refusal to submit to testing
in the moments following the arrest. Although it is
preconditioned on an OUI conviction, all meaningful discretion on
the part of the sentencing court is withdrawn as an unwarned
consequence of the defendant's noncriminal refusal to submit to
testing. Second, no mitigating circumstances, either in relation
to the refusal to be tested or the commission of the underlying
offense, can enable the court to sentence below the mandatory
minimum. Third, the statutory description of the mandatory
minimum sentence for refusing testing as an "aggravating
factor," see 1312-B(2) ("refusal to submit to a chemical test
___
shall in every case be an aggravating factor") is itself a
misleading euphemism for what is in reality a conclusive sentenc-
__________ _________ __________ ________
ing mandate which the court is required not merely to consider
___ _______ ________
but to impose without regard to any mitigating circumstance.
-42-
conviction obtained through procedural due process violation);
Wright, 373 U.S. at 287 (same).
______
(ii) The Risk of Erroneous Deprivation
(ii) The Risk of Erroneous Deprivation
_________________________________
The risk that an erroneous deprivation of liberty will
occur is roughly commensurate with the relevance the unwarned
consequence bears to the decision to refuse testing. The
unwarned mandatory term of confinement the most serious
consequence surely bears great relevance to the "no-test"
decision; even a presumptively determinative relevance in the
present circumstances.
Significant derivative risks attach to the inaccurate
advisory as well. No doubt there are many first-time OUI
suspects with neither the knowledge nor the experience to assess
whether their blood-alcohol content exceeds the prima facie
_____ _____
intoxication level prescribed by statute. For such suspects, at
least, it cannot be claimed that an accurate advisory on the
mandatory minimum term of confinement attendant upon a refusal to
submit to testing would not materially influence their decision.
Thus, the deceptive "implied consent" advisory not only risks
erroneous conviction (e.g., as a consequence of allowing an
__________ ____
unwarned refusal in evidence where chemical testing may have
revealed a blood-alcohol content below the prima facie level) but
_____ _____
a sentence more severe than would have been imposed by the court
________
but for the suspect's unwarned refusal to be tested (e.g., where
____
reliable test results would have disclosed a blood-alcohol
content below the prima facie intoxication level).
_____ _____
-43-
The undeniable value of a ready alternative to the
deceptive advisory is obvious. The legitimate interests of the
State, as well as the accused, would be significantly advanced by
the simple inclusion of a straightforward warning that a first-
time refusal to submit to chemical testing must be followed by a
minimum term of confinement upon conviction for operating a motor
vehicle while under the influence of alcohol or drugs. The State
would advance its prospects for obtaining the most reliable
________
evidence of intoxication the suspect's blood-alcohol level,
see Mackey, 443 U.S. at 19 (characterizing "chemical test"
___ ______
results as "the most reliable form of evidence of intoxication
for use in subsequent proceedings.) while the suspect in
custody would receive full, fair, and timely notice of the
relevant options and their consequences.
(iii) Governmental Interests
(iii) Governmental Interests
______________________
Lastly, the governmental interests at stake, and the
administrative and fiscal burdens attendant to any additional
procedural safeguard, must be considered. See Mathews, 424 U.S.
___ _______
at 347-48. Although the police power is among the least
limitable, Lambert, 355 U.S. at 228, the State of Maine points to
_______
no governmental interest in omitting mention of the mandatory
__
minimum sentence in its standard advisory. Indeed, it is
difficult to posit a legitimate governmental interest served by
__________
implicitly misleading OUI suspects into refusing to be tested.
________
Rather, the State's legitimate interest in obtaining the most
reliable evidence of intoxication, through the voluntary
-44-
cooperation of OUI suspects, is better served by advising the
______
suspect of all sanctions for refusing testing.
___ ________
The State has a paramount interest in minimizing any
pre-testing delay which might render chemical-test results
unreliable. See Schmerber, 384 U.S. at 770-71. In all likeli-
___ _________
hood, however, a simple, straightforward amendment to the
standard advisory would expedite chemical testing; certainly, it
would not delay it.16 And the effort to eradicate the tragic
consequences of drunken driving on Maine highways would be
advanced thereby, rather than hindered.
The ease with which an alternative procedure can be
implemented likewise weighs heavily in favor of an amendment to
the standard advisory, see Mathews, 424 U.S. at 348 ("At some
___ _______
point the benefit of an additional safeguard to the individual .
. . may be outweighed by the cost."), especially since it would
occasion neither pre-testing delay nor significant expense.
As the mandatory minimum sentence was imposed in
violation of the Due Process Clause, I agree that the writ should
enter in the event the State of Maine does not vacate the
mandatory minimum sentence and afford petitioner a meaningful
____________________
16 The majority opinion persuasively demonstrates that no Sixth
Amendment right to counsel arose until well after Roberts refused
to be tested. But though I share the view that Roberts was not
accorded the process due when confronted with the choice whether
to submit to chemical testing, I am unable to agree with the
court that he was entitled to the assistance of counsel at that
time, as distinguished from appropriate notice of the
___________ ______
consequences of refusing.
-45-
sentencing hearing at which section 1312-B(2)(B)(4) is not
applied.
-46-
