State v. Shepard

ARCHIBALD, Justice.

Appellant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. 29 M.R.S.A. § 1312(10)(A). During the trial the result of a test taken to determine appellant’s blood-alcohol level was admitted in evidence. The appeal is limited to a determination of whether the admission of this evidence was error. We find none and deny the appeal.

A state police officer, having observed irregularities in the operation of the car being driven by appellant, after pursuing the vehicle for approximately one and one-half miles, succeeded in stopping it. He made observations of appellant, concluded that he was under the influence of intoxicating liquor and placed him under arrest. The lawfulness of the arrest under the above circumstances is unquestioned.

Immediately on placing the appellant under arrest the officer advised him of the consequences of refusing to submit to a blood test pursuant to the provisions of the *588 so-called “Implied Consent Law.” 1 Appellant then “indicated that he wished to take a blood test,” which was done.

The issue before us is generated by the following question and answer taken from the cross-examination of the police officer:

“Q. After you told him that if he didn’t take the test the Secretary of State would suspend his license for three months, did you then tell him that if he did take the test, you would use it against him in court ?

A. No, sir, I read exactly what was on the sheet.”

Appellant’s argument asserts that a condition precedent to admissibility of the test results is some affirmative act or statement of the operator assenting or agreeing to submit to it at the time the law enforcement officer directs such a test to be taken. This argument, however, ignores the plain and unambiguous statutory language, namely:

“Any person who operates ... a motor vehicle within this State shall be deemed to have given consent to a chemical test . . . . ” (Emphasis supplied.)

29 M.R.S.A. § 1312. Since the emphasized statutory language is not designed to convey a technical or peculiar meaning, it must be “construed according to the common meaning of the language.” 1 M.R.S. A. § 72(3); see Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn S.P.A., 320 A.2d 247 (Me.1974). We have emphasized the particular statutory language because it is expressed in the past tense. It is clear to us that the Legislature deemed the antecedent act of operating a motor vehicle, per se, to be all that is required to give consent for the taking of the blood test upon a subsequent lawful arrest for this statutory violation. The heading, “Implied consent to chemical tests,” demonstrates such legislative intent. It seems to us self-evident that no additional consensual affirmative decision is required when a motor vehicle operator lawfully arrested for violation of 29 M.R.S.A. § 1312(10) (A) is directed to submit to such a test.

*589 Because of the express provision of 29 M.R.S.A. § 1312(1), the admissibility of the test result is contingent on the arresting officer’s informing the operator of the consequences of refusing to submit to the test. These consequences are delineated in Section 1312(2) and involve the suspension by the Secretary of State of the operator’s privilege to operate motor vehicles. Neither this section, nor Section 1312(8), requires the officer to inform the operator that the test results are admissible in evidence. The civil penalty for refusing to submit to the chemical test must not be confused with the statutory provision for admitting the test in evidence. In short, the Legislature deemed it wise to give such an operator the right to refuse to submit to the demanded test (subject to penalty) and, additionally, to adopt an exclusionary rule inhibiting the State’s use of such a test if the right to refuse to take it was not adequately explained.

When the original “Implied Consent Law” was under legislative debate the Justices of the Supreme Judicial Court were asked 2 specifically whether the proposed legislation was violative of either the Fifth or Fourteenth Amendments of the United States Constitution or the parallel provisions of the Constitution of Maine, Art. I, §§ 6 and 6-A. The Justices responded in the negative. Opinion of the Justices, 255 A.2d 643 (Me.1969). We adopt these unanimous opinions and the reasons assigned therefor. See Martin v. Maine Savings Bank, 154 Me. 259, 147 A.2d 131 (1958).

We now hold that no constitutional infirmity arises from implying consent to a chemical test to determine the blood-alcohol level of a motor vehicle operator, lawfully arrested for violating Section 1312(10) (A), from the mere act'of operating such a vehicle. This act is an effective waiver of the operator’s right, if such he has, under either of the above provisions of the United States or Maine Constitutions.

The entry is:

Appeal denied.

All Justices concurring.