M AINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 85 Docket: Ken

- 16

- 503 Argued: May	12,	2017 Decided: July	3,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN, JABAR , HJELM, and HUMPHREY, JJ. Majority: SAUFLEY,	C.J.,	and	ALEXANDER, MEAD,	and	HUMPHREY,	JJ. Dissent: GORMAN,	J. ,	with	whom	JABAR,	J.,	joins , and	HJELM,	J.,	joins	in	part. Dissent: JABAR,	J. Dissent: HJELM,	J. STATE	OF	MAINE

v. LYANNE	LEMEUNIER

- FITZGERALD

SAUFLEY , C. J. [¶1] This	appeal	 requires	us	 to	determine	whether evidence	 obtained from a	warrantless	 blood

- alcohol	 test, taken upon probable	 cause	 to	 believe that a	driver ’ s	ability	to	operate	a	motor	vehicle	was	impaired	by	intoxicants , falls	within	 the	 consent	 exception	 to	 the	warrant	 requirement	if	 the	 suspect agrees	 to	 the	 blood	 draw following	 the	 standard	 explanation of	 the	 implied consent	warnings. In	this	evolving	area	of	Fourth	Amendment	jurisprudence,2 we	conclude	that the	operato r	consented	to	the	blood	test, and	we	affirm	the denial	of	the	motion	to	suppress. 1 I.		BACKGROUND [¶ 2 ] Lyanne LeMeunier

- Fitzgerald	 appeals	 from	 a	 judgment	 of conviction entered by	 the trial court	 (Kennebec	 County, Mullen,	J. ) upon	 her conditional	guilty	plea to	charges	 of operating	under	 the	influence (Class	C), 29

- A	M.R.S. § 2411(1

- A)(B)(2) ,	(5)(C) (2017 ) ,	and	operating	beyond	a	license condition	 or	 restriction	 (Class	 E), 29

- A M.R.S. § 1251(1)(B)	 (2017 ) , entered after the	court	( Marden,	J. )	deni ed her	motion	to	suppress the	results	of	a	blood test	for	alcohol

. She challenges the	court ’ s determination tha t	she	voluntarily consented	to	the blood	test after she	was warned	by	the	arresting	officer	that there	were	potential	consequences if	she refused	to	consent

. [¶ 3 ] The	 operative	 facts ,	most	 of	which	were	 found	 upon	 the	 parties ’ stipulation	 and	 none	 of	 which	 are	 disputed	 on	 appeal , are	 as	 follows. On December	 21,	 2015,	 a n	 Augusta police	 officer sus pected	 that LeMeunier

- Fitzgera ld was	operating	under	the	influence	of	an	intoxicant	after observing	her in	a	supermarket	parking	lot. H er	vehicle	was	partiall y	pulled

1 Because	we	conclude	that	the	court	properly	denied	Le Meunier

- Fitzgerald ’ s	motion	to	suppress, we	do	not	reach	the	State ’ s	argument	that	suppression	of	the	test	results	was	not	required	because the	officer	was	acting	in	“good	faith	reliance	on	existing	law.”3 out	of	a	parking	space, her	eyes	were	gla ssy, and	she	smelled	of	alcohol. W hen the	 officer approached	 and questioned	 her,	 she	grabbed	 a	bottle	 of	pills	 and poured	them	into	her	mouth.		The	officer	placed	her	in	handcuffs	and	called	for a	rescue	team.		When	the	rescue	team	arrived,	the	handcuffs	were	removed	and LeMeunier

- Fitzgera ld	was	taken	to	the	hospital. [¶ 4 ] After	hospital	personnel	had	attended	to LeMeunier

- Fitzgerald	and had	placed	her	in	a	room,	 the	officer	met	with	her.		The	officer	informed	her that	 he suspected that she had	 been attempting	 to	 operate	 a	 motor	 vehicle while	under	the	influence of	intoxicants ,	and	he	read	Maine ’ s	“implied	consent” warnings to	 her verbatim from	 a	 form	 provided	 by	 the	 Secretary	 of	 State’s Bureau	of	Motor	Vehicles

. See 29

- A	M.R.S.	§	2521	 (2017)

. Included	was	 the warning,	 “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,	w ill	subject	you	to	a mandatory	minimum	period	of	incarceration .” LeMeunier

- Fitzgerald	agreed	 to	submit	 to	 the	blood	 test ,	and	a	blood	sample was	taken	from	her	without	a	warrant

. [¶ 5 ] LeMeunier

- Fitzgerald was	charged	by	complaint , and she	was	later in dicted , for operating	 under	 the	 influence (Class	 C),	 29

- A	 M.R.S.4 § 2411(1

- A)(B)(2),	 and	 operating	 beyond	 a	 license	 condition	 or	 restriction (Class	 E), 29

- A	 M.R.S.	 § 1251(1)(B). She moved	 to	 suppress	 the	 blood	 test results	 as	 having	 been	 procured	 without	 a warrant and	 without	 voluntary consent, in	 violation	 of	 the	 Fourth	 Amendment to the	 United	 States Constitution. T he	 court	 held	 a	 hearing	 on	 the motion	 to	 suppress	 on July 26, 2016.		The	parties	stipulated	that (1) the	officer	had	probable	cause to believe that LeMeunier

- Fitzgerald	was	operating	while	under	the	influence	of an	intoxicant , (2) her blood	was	drawn	without	a	search	warrant,	and (3) there were	no	exigent	circumstances.		The	court	then	heard brief testimony	from	the officer	who had	taken LeMeuni er - Fitzgerald	into	custody. For	pur poses	of	the motion,	that	t estimony	was	not	disputed	by	LeMe unier

- Fitzgerald. [¶ 6 ] The	court	denied	the	motion	to	suppress ,	reasoning that,	unlike	the situation	that	the United	States	Supreme	Court recently addressed in Birchfield v.	North	Dakota , LeMeunier

- Fitzgerald did	not	submit to	the	blood	testing	“on pain	 of	 committing	 a	 criminal	 offense .” 579	 U.S.

--- ,	 136	 S.	 Ct.	 2160,	 2186 (2016) .		The	court concluded that the heightened minimum	penalties ,	including

a mandatory	 minimum	 period	 of	 incarceration, that	 may	 be	 imposed on	 a person	who	refuses	to	submit	to	testing	if	convicted of	OUI were	not equivalent5
to an	 independent	 criminal	 offense for	 refusal as	 described	 in Birchfield. 579 U.S.	at

--- ,	136	S.	Ct.	at	2 169

- 70,	2186

. [¶ 7 ] LeMeunier

- Fitzgerald	entered	a	conditional	guilty	plea,	preserving her	 right	 to	appeal	 from	 the	 ruling	 on	 the	motion	 to	 suppress,	and	 the	court ( Mullen,	J. )	sentenced	her	to	three	years	in	prison, with all	but	forty

- five	days suspended, 2 and	 two	years	of	probation	 for	 the	OUI	conviction	and	 forty

- five days	in	prison,	 to	 run	concurrently,	 for	 the	conviction	 of	 operating	beyond	 a license	condition	or	restriction.		The	court	also	imposed	fines and	surcharges amounting	to	$1,405. [¶ 8 ] LeMeunier

- Fitzgerald	timely appealed. See 15	M.R.S.	§	2115	(2017 ) ; M.R.	App.	P.	2 (b)(2)(A) (Tower	20 16)

. 3 She	argues that	the	blood	test	violated the	 Fourth	 Amendment ’ s	 protection	 against	 unreasonable	 searches	 and seizures	because	it	was	taken	without	a	warrant	and	her	consent	to	the	test	was rendered	involuntary	by	the	warning	of	an	increased	minimum sentence if	she refused	to	consent	and	was	then	convicted.

2 LeMeunier

- Fitzgerald	had	apparently	been	convi cted	of	OUI	on	previous	occasions.

3 The	appeal	was	commenced	before	the	restyled	Maine	Rules	of	Appellate	Procedure	took	effect. See M.R.	App.	P.	1	(providing	that	the	restyled	rules	are	effective	for	“appeals	in	which	the	notice	of appeal	is	filed	on or	after	September	1,	2017”).6 II.		DIS CUSSION [¶ 9 ]	 	 We	 anchor	 our	 analysis	 in	 the	 language	 of	 the	 United	 States Constitution. “ The	 right	 of	 the	 people	 to	 be	 secure	in	 their	 persons,	 houses, papers,	and	 effects,	against	unreasonable	 searches	 and	 seizures,	 shall	not	be violated,	and	no	Warrants shall	issue,	but	upon	probable	cause,	supported	by Oath	or	affirmation,	and	particularly	describing	the	place	to	be	searched,	and the	persons	or	things	to	be	seized. ”		U.S.	Const.	amend.	IV. There	is	no	question that	strictures	of	the	Fourth	Amendment	ap ply	to	searches	in	the	form	of	blood
tests. See Schmerber v.	California ,	384	U.S.	757,	767

- 72	(1966)

. The	question	is ho w	those	strictures	apply	here. [¶1 0 ] In	recent	years,	c ourts	across	the	country	have	been	challenged	to find	 an	 appropriate	 balance between	 a	 defendant ’ s	 right	 to	 be	 free	 from “unreasonable”	searches of	 their	blood	 for	its	alcohol	content and the	State’s interest	in	addressing the	public	safety	crisis	resulting	from	impaired	drivers causing	death	and	destruction	on	America ’ s	roads. 4 U .S.	Const.	amend.	IV. We endeavor	 here	 to	 assure	 that	 the	 cons titution ’ s	 prohibition	 against unreasonable search es and	 seizures	 is	 given	 full	 force, with	 the	 required

4 See,	e.g. , Missouri	v.	McNeely ,	569	U.S.	141,	159

- 63	 (2013) ; Mich.	Dep ’ t	 of	State	Police	v.	 Sitz , 496 U.S.	444,	451

- 55	(1990) ; United	States	v.	Brock ,	632	F.3d	999,	1002

- 03	(7th	Cir.	2011) ; see	also State	v. Boyd ,	2017	ME 36,	¶¶	8

- 15,	156	A.3d	748; State	v.	Arndt ,	2016	ME	31, ¶¶	5

- 11, 133	A.3d	587

.7 determination	 of	 reasonableness	 informed	 by	 a full	 consideration	 of urgen t public	 safety considerations

. 5 In	 this	 opinion , we	 (A) summarize	 the	 Fourth Amendment	 jurisprudence	 regarding	 searches	 u ndertaken	 for	 purposes	 of blood

- alcohol	 testing;	 (B)	 review the statutory basis	 for	 providing warnings about	the	legal	consequences of	a	refusal	to	submit	to	testing; and (C)	consider the	 legal	 question	 of	 whether	 a	 driver	 who	 consents	 to	 a	 blood	 draw	 after receiving	 such	 warnings	 has	 voluntarily	 consented ,	 recognizing,	 as	 the	 First Circuit	 has	 eloquently	 explained,	 that	 a	 defendant’s consent	 that	 has	 been “pried	loose by

.	.	. a	claim	of	authority	is	merely	acquiescence

. ” United	States	v. Va z quez ,	724	F.3d	15,	23	(1st	Cir.	2013)

. A. Alcohol	Testing	and	the	Fourth	Amendment [¶1 1 ] W e	begin with the	bedrock	understanding	that	the	withdrawal	of a	blood	sample	from	the	veins or	arteries of	a	human	being for	blood

- alcohol testing is	a	“search”	falling	within	the	protection	of	the	Fourth	Amendment. See Birchfield ,	579	U.S.	at

--- ,	136	S.	Ct.	at	2173 ; Schmerber ,	384	U.S. at 767 ; State	v. Boyd ,	 2017	 ME	 36,	 ¶ 8,	 156	 A.3d	 748 ; State	 v.	 Arndt ,	 2016	 ME	 31,	 ¶	 8,

5 The National	Highway	Traffic	Safety	Administration	reports that ,	in	2016,	10,497	people	died	in traffic	accidents	involving	a t	least	one	driver	with	a	blood

- alcohol content	of .08	grams	per	deciliter or	more.		Nat ’ l	Highway	Traffic	Safety	Admin., Traffic	Safety	Facts : Alcohol	Impaired	Driving ,	DOT	HS 812	450	at	2	(Oct.	2017).		That	is	the	highest reported number	of	fatalities	since	2009. Id.8 133 A.3d 587

. The	Fourth	Amendment	prohibits	unreasonable searches,	and the procurement of	 a	 legitimate	 search	 warrant,	 with	 all	 that	 it	 entails, is designed	 to	 ensure the reasonable ness	 of	 a	 search

. See Skinner	 v.	 Ry.	 Labor Executives ’ Ass ’ n ,	489	U.S.	602,	6 19,	6 22	(1989)

. [¶1 2 ] As	is	also	clear,	however,	there	are “ a	few	specifically	established and	 well

- delineated	 exceptions”	 to	 the	 warrant	 requirement. Katz	 v.	 United States ,	 389	 U.S.	 347 ,	 357	 (1967); see	 also Missouri	 v.	 McNeely ,	 569	 U.S.	 141, 148

- 49	 (2013) ; Georgia	v.	Randolph ,	547	U.S.	103,	109	 (2006)

. “ When	 faced with	 special	 law	 enforcement	 needs, diminished	 expectations	 of	 privacy, minimal	 intrusions,	 or	 the	 like,	 the	 [Supreme]	 Court	 has	 found	 that	 certain general,	 or	 individual,	 circumstances	 may	 render	 a	 warrantless	 search	 or seizure	 reasonable. ” Illinois	 v.	 McArthur ,	 531	 U.S.	 326,	 330	 (2001) ; s ee,	 e.g. , Pennsylvania	v.	Labron ,	518	U.S.	938,	940 (1996) (per	curiam)	( holding	that	a warrantl ess search	of an automobile is	reasonable	if	the	automobile	is	readily mobile	 and	 the	 search	 is supported	 by	 probable	 cause); Mich

. Dep ’ t	 of	 State Police	v. Sitz ,	496	U.S.	444,	4 53

- 55	 (1990) ( holding	 that	 the	use	of	a	sobriety checkpoint was	reasonable	when	it	was	instituted	based	on	objective	indicia	of effectiveness )

.9 [¶1 3 ] I n	addressing	the reasonableness of searches aimed	at	detecting impaired	 driving , the	 Supreme	 Court has held	 that a breath	 test m easuring blood

- alcohol	content is a	search	that	does	not	require	a	warrant,	consent,	or other	exceptions,	as	long	as there is probable	cause	to	believe	that	the driver was	operating,	or	attempting	 to	operate, a	vehicle	while	under	 the	influence

. See	Birchfield , 579 U.S.	at

--- ,	136	S.	Ct. at	2184

- 85. T he	Court	has reasoned that a	breath	test	is	less	intrusive	than	a	blood	test,	and	when	balanced	against	the law	 enforcement	 needs	 of	 keeping	 impaired	 drivers	 of f	 the	 roads, it	 is reasonable,	even	without	a	warrant,	for a law	enforcement officer to requir e a driver to submit	to a breath	test if	probable	cause	exists

. See	id. [¶1 4 ] Because	it	is	more	intrusive,	however,	a	warrantless	blood	draw
cannot be	justified	as	a	search	incident	to	an	arrest	for	OUI. Id. at 2185. Thus, some	other	exception	to	the	warrant	requirement	is	necessary	to	establish	the reasonableness	of	the	blood	draw	to	test	for	alcohol. [¶1 5 ]	 	 The	 parties	 have	 agreed	 that	 the	 consen t	 exception	 is	 the	 only exception	at	issue	on	appeal

. 6 The	question	before	us	concerns	whether ,	given

6 The	State	did	not	argue	that	exi gent	circumstances	justified	the	blood	draw.		As the	United	States Supreme	Court has held , the	natural	dissipation	of	alcohol	in	a	suspect ’ s	blood	does	not	categorically support	a	fin ding	of	exigent	circumstances,	and	m ore	than	the	mere	fact	that	alcohol	d issipates	over time	is	required	to	establish	such	an	exigency. McNeely ,	569	U.S.	141, 156 (2013); Arndt ,	2016	ME 31, ¶	 10,	 133	 A.3d	 587 .	 	 In	 the	matter	 before	 us,	 exigent	 circumstances	may	 have	 arisen	 due	 to	 the possible unavailability	 of	 a	 breathalyzer	 at	 the	 h ospital,	 LeMeunier

- Fitzgerald ’ s observed consumption	of	a	bottle ’ s	worth	of	pills	when	the	officer	approached	her	in	the parking	lot,	and	the10 the	need	to	prevent	drivers	from	operating vehicles	while	under	the	influence of	 intoxicants,	 it	 is	 reasonable	 to	 draw	 a	 driver ’ s	 blood without	 procuring a
warrant when the	driver	has	consented	to	a	blood	test after	being	read Maine’s statutory	warnings about	the	consequences	of	refusing	to	submit	to	testing

. B

. The	 Duty	 to	 Submit	 to	 Testing	 and	 Warnings	 of	 the	 Consequences	 of Refusing	to	Submit [¶1 6 ] Due to	concerns	about	deaths	and	injuries	resulting	 from	drunk driving , State s have adopted laws design ed	 to ensure	 the testing	 of blood

- alcohol	 levels	 through	 breath	 or	 blood	 tests ,	 predominantly through statutes	 providing that	 drivers “imply”	 their consent to	 testing by	 operating vehicles	on	the	roads

. See	Birchfield , 579 U.S.	at

--- ,	136	S.	Ct. at	2166 ,	2168

- 69

. T he Maine	 L egislature	 enacted its “i mplied c onsent”	 law to	 take	 effect	 on October	1,	1969 .		P.L.	1969,	ch.	439,	§	1	(codified	at 29	M.R.S.A.	§ 1312	( Supp. 1970 )) .	 	 Th at statute provided that any	 person	 operating	 or	 attempting	 to operate	a	motor	vehicle	in	Maine	who	had	been	arrested	 for	operating	while

potential	dissipation	of	the	evidence	through	treatment	at	the	hospital. See	Birchfield v.	North	Dakota , 579 U.S.	at

--- , 136	S.	Ct.	2160,	2184	(2016)	(stating	that	“[o]ne	advantage	of	blood	tests	is	their	ability to	detect	not	just	alcohol	but	also	other	substances	that	can	impair	a	driver’s	ability	to	operate	a	car safely,” and	indicating	that	police	may	rely	on the	exigent	circumstances	exception	 to	 the	warran t requirement	if	there	is	insufficient	time	to	seek	a	warrant	in	such	circumstances). Nonetheless,	the State	did	not	assert	exigency,	it	did	not	present	evidence	upon which	the	court	could	have	reached findings	and	analyzed	that	exception,	and	we	do	not	address	the	exception	further.11 intoxicated	would	“be	deemed	to	have	given	consent	to	a	chemical	test	of	the blood	alcohol	leve l	of	his	blood	or	urine.” Id. [¶1 7 ]		More	than	a	decade	later,	i n	response	to	our	decision in terpreting the	 “implied	 consent”	 statute, State	 v. Plante , 417	 A.2d	 991 (Me.	 1980), 7 the L egislature	amended	the	statute,	eliminating	the	presumpti on	of consent	u pon operation	of a vehicle and	establishing	a	duty	to	submit	to	testing

. See P.L.	1981, ch.	679,	§	12	(effective	April	15,	1982) (codified	at 29	M.R.S.A.	§	1312	( Supp. 1982 ))

. The	present statute, 29

- A M.R.S.	§ 2521 (1)	(2017),	which	was	in	effect when LeMeunier

- Fitzgerald ’ s	blood	was drawn,	provides,	“ If	there	is	probable cause	 to	 believe	 a	 person	 has	 operated	 a	 motor	 vehicle	 while	 under	 the influence	 of	 intoxicants,	 that	 person shall	 submit	 to	 and	 complete	 a	 test to determine	an	alcohol	level	and	 the	p resence	of	a	drug	or	drug	metabolite	by analysis	of	blood,	breath	or	urine. ” (Emphasis	added.) The	statute	provides	for the	administration	 of	a breath	 test “ unless,	in	 th [e] officer ’ s	determination, a breath	 test	 is	 unreasonable,”	 in	 which	 case	 “ another chemical	 test	 must	 be administered	in	place	of	a	breath	test. ” Id. § 2521(2).

7 There,	we	interpreted	the	statute	to	provide	that	a	person	had	a	duty	to	submit	to	testing	and had	“the	power

— though	not	the	right

— to refuse	to	perform	that	duty.” State	v.	Plante ,	417	A.2d	991, 993	(Me.	1980).12 [¶1 8 ] Thus, although	 Maine ’ s	 chemi cal testing	 statute	 bears	 the	 title

“ Imp lied	 consent	 to	 chemical	 tests,” the	 statute “ no	 longer	 provides	 that	 a person	 will	 be ‘ deemed ’ to	 hav e	 consented	 to	 testing	 by	 operating	 a	 motor vehicle	on	Maine ’ s	roads .” Boyd ,	2017	ME	36,	¶ 13,	156	A.3d	748 .		The statute was	amended	to	impose	on a	driver	a duty	to	submit	to	testing	when	there	is probable	cause	 to	believe	 that the driver	has	operated	a	motor	vehicle	while under	 the	 influence. Id. Accordingly,	 we	 refer	 to	 the	 statute	 as	 the “duty

- to
- submit”	 statute	 and	 clarify	 that	 LeMeunier

- Fitzgerald did	 not,	 by operation	of	her	vehicle ,	“imply” that	she	consented	to	chemical	te sting. [¶19] The	duty	to submit does	not ,	however, create	a	statutory mandate
to submit to	 testing .		Rather,	it	provides	 specific	consequences	 for	a	driver’s decision	 not	 to	 comply	 with	 that	 duty. See 29

- A	 M.R.S.	 §	 2521(3) ,	 (5),	 (6) (2017). In	order	f or	the	consequences of	refusal to	apply , the	driver must	have been provided	with	a	direct	and	clear	explanation	of th os e consequen ces. See id. §	2521(3). [¶ 20 ] The specific question	 before	 us	 concerns	 the	 voluntariness	 of LeMeunier

- Fitzgerald ’ s verbal consent given after	 receiving	 warnings	 of	 the consequences	of	refusing ,	despite	the	existence	of	probable	cause, to	submit	to testing.		With respect	to such warnings,	the	statute	provides:13 Neither	a	refusal	to	submit	to	a	test	nor	a	failure	to	complete	a test may	be	used	for	any	of	the	purposes	specified	in	paragraph	A,	B	or C	unless	 the	person	has	 first	been	 told	 that	 the	 refusal	 or	 failure will: A. Result	in	suspension	of	that	person ’ s	driver ’ s	license	for	a period	up	to	6	years; B. Be	admissible	in	ev idence	at	a	trial	for	operating	under	the influence	of	intoxicants;	and C. Be	 considered	 an	 aggravating	 factor	 at	 sentencing	 if	 the person	 is	 convicted	 of	 operating	 under	 the	 influence	 of intoxicants	 that,	in	 addition	 to	 other	 penalties,	will	 subject the person	to	a	mandatory	minimum	period	of	incarceration. Id. §	 2521(3). Thus,	 i f	 a	 driver	 has	 first	 been	 warned	 of	 the	 statutory consequences,	the	driver ’ s	refusal to	comply	with the	statutory	duty	to submit can	 result	 in	 (A )	 up	 to	 six	 years ’ suspension	 of	 the	 driver ’ s	 license ; (B ) the admission at	trial of the driver’s r efusal to	submit	to	testing;	and	(C) i ncreased minimum	 penalties if	 the	 driver	 is	 convicted	 of	 OUI, including	 a	 mandatory minimum	period	of	incarceration

. See	id. §	2521(3), (5),	(6); see	also 29

- A	M.R.S. § 2411(5 )(A)(1),	(A)( 3)(b),	(B)(1),	(B)(2),	(C)(1),	(C)(2),	(D)(1),	( D)(2)	(2017 ). We	 now	 consider	whether	 this	 statutory	 scheme	imposes	 unconstitutional ly coercive consequences	for	refusing	to	submit	to	testing,	such	that	t he	warning of	 those	 consequences c ould	 have undermined the voluntariness of14 LeMeunier

- Fitzgerald ’ s	 consent
. See	 Birchfield ,	 57 9	 U.S.	 at

--- ,	 136	 U.S.	 at 2184

- 85. C. Voluntariness	of Consent	after	Statutory	Warnings [¶ 2 1 ] Even in	the	absence	of	a	warrant,	a	search	is	reasonable

— and	the evidence	obtained	is	admissible

— if	a	person	voluntarily	consents	to	the	search. See Randolph ,	 547	 U.S. at 109 ; Schneckloth	 v.	 Bustamonte ,	 412	 U.S.	 218 ,	 219 (1973); State	 v.	 Cress, 576	 A.2d	 1366, 1367	 (Me.	 1990)

. When	 a	 defendant moves	to	suppress	evidence	obtained	without	a	warrant	and	the	State	asserts that	no	warrant	was	required	because	the	suspect	consented	to	the	search,	it	is the	 State ’ s	 burden	 to	 prove,	 “by	 a	 preponderance	 of	 the	 evidence ,	 that	 an objective	 manifestation	 of	 consent	 was	 given	 by	 word	 or	 gesture.” State	 v. Bailey ,	2012	ME	55,	¶	16,	41	A.3d	535 (quotation	marks	omitted). [¶ 2 2 ]		The	question	of	voluntariness	is	“ ‘ determined	from	the	totality	of all	 the	 circumstances. ’ ” Birchfield ,	 579	 U.S.

--- ,	 136	 S.	 Ct.	 at	 2186 (quoting Schneckloth ,	412	U.S.	at	227)

. A	search	is	unreasonable	if	a	person ’ s consent to the	 search was “ coerced,	 by	 explicit	 or	 implicit	 means,	 by implied	 threat	 or covert	 force” or duress,	 or	 was	 induced	 by “deceit,	 trickery,	 or misrepresentation.” Schneckloth , 412	U.S.	at	228; State	v.	Barlow ,	320	A.2d	895 , 900	(Me.	1974) ; see	State	v.	Koucoules ,	343	A.2d	860,	873	(Me.	1974)

.15 [¶ 2 3 ] The	circumstances	under	which	LeMeunier

- Fitzgerald	agreed	 to submit	to	a	bl ood	test	are	undisputed;	the	parties ’ disagreement	centers	on	the effect	of	the	warnings	on	the	voluntariness	of	her	consent. 8 In	the	absence	of any	 factual	 dispute,	 “we	 review	 de	 novo	 the	 motion	 court ’ s	 ruling	 on suppression.” State	v.	Tozier ,	2006	ME 105 ,	¶	6,	905	A.2d	836. [¶ 2 4 ] To address	the	legal	issue	presented,	we	must	determine	whether the consent	exception	to	the	warrant	requirement	applies	to	a	defendant	who gave	her	consent	upon	receiving	the specific statutory	warnings at	issue	here

. 9

8 On	an	appeal	from	a	denial	of	a	motion	to	suppress,	we	review	any	disputes	about	the	court ’ s findings	 for	 clear	 error	 and	 the	 ultimate	 question	 of	 whether	 the	 facts	 establish an	 individual ’ s consent	de	novo. See State	v.	Nadeau ,	2010	ME	71 ,	¶ 18,	1	A.3d	445 .		Here,	the	facts	found	by	the court	are	not	in	dispute:	the “ officer	had	probable	cause	to	believe	that [ LeMeunier

- Fitzgerald ] was operating	a	motor	vehicle	while	under	the	influence	of	an	intoxicant”;	in	the	hospital, while	in	police custody, she	“agreed	to	submit	to	a	blood	test	after	being	read	the	Maine	implied	consent	law”;	“a blood	sample	was	taken	without	a	warrant[;]	and there	were	no	exigent	circumstances.”		Thus,	we are	in	a	position	to	review	a	straightforward	legal	issue	based	on	an	officer	acting	in	accordance	with the	statute	governing	the	warnings	and	are	not	required	to	remand	the	matter	for	the	court	to	reach find ings	about	disputed	key	facts. See State	v.	Clay ,	793	S.E.2d	636,	639	(Ga.	Ct.	App.	2016) (stating that	a	defendant ’ s	affirmative	response	 to	statutory	warnings	“may	itself	be	sufficient	evidence	of actual	and	 voluntary	 consent,	 absent	 reason	 to	 believe	 t he	 response	was	involuntary”	 (quotation marks	omitted)); cf. United	States	v.	Hutchinson , No.	2:16

- CR

- 168

- DBH, 2018	U.S.	Dist.	LEXIS	7180, at *16

- 19	(D. Me.	Jan.	17,	2018) (reaching	findings	after	three	witnesses	testified	differently	about	what happened	 w hen	 the	 defendant ’ s	 blood	 was	 drawn); Espinoza	 v.	 Shiomoto ,	 215	 Cal.	 Rptr.	 3d	 807, 823

- 34	(Cal.	Ct.	App.	2017) (reviewing	whether	a	driver	voluntarily	consented	to	testing,	or	instead refused	testing,	when	she	conditioned	her	consent	on	the	police	obtainin g	a	warrant	and	no	warrant was	obtained); Boyd ,	2017	ME	36,	156	A.3d	748	(reviewing	the	voluntariness	of	consent	when	no warnings	 were	 read); State	 v.	 Blackman ,	 898	 N.W.2d	 774,	 778,	 781

- 89 (Wis.	 2017) (reviewing whether	 a	 driver	 voluntarily	 consented	 when the	 form that the	 officer	 read	 misstated	 the	 legal consequences	of	refusal	for	the	driver	at	issue).

9 In	contrast	to	the	facts	presented	in	a	case	recently	dec ided	by United	States District	Court	J udge D. Brock	Hornby,	 the	officer	here	did	not	misrepresent	 the	law	 to	 the	defendant. See	Hutchinson , 2018	U.S.	Dist.	LEXIS	7180,	at	*20

- 21. LeMeunier

- Fitzgerald was	informed	 that	her	refusal	would have	consequences,	but	she	was	not	told	that	she had	no	choice	i n	the	matter

. Id. at	*5.16 If the imposition of	a minimum	mandatory	sentence upon	a	driver ’ s	conviction of	OUI	after	refusing	testing is	unconstitutional ly	coercive ,	the	warning	of	that possible	consequence throws	into	question the voluntariness	of	consent. See Birchfield ,	 579	 U.S.

--- ,	 136	 S.	 Ct.	 at	 2186	 (remanding	 for	 the	 state	 court	 to determine	whether	a	suspect ’ s	consent	to	a	blood	test	was	voluntary	when	he consented	only	after	police	erroneously	told	him	that	the	law	required	him	to submit	or	face	prosecution	for	the	crime	of refusal) ; see	also	Barlow ,	320	A.2d at	900

. [¶ 2 5 ]	 	Unlike the	North	Dakota	 statute	 reviewed in Birchfield ,	Maine ’ s
statut e	 includes no	 threat of	 a separate, independent	 criminal	 charge	 for refusing	to	submit	to	testing. Cf.	Birchfield , 579	U.S.	at

--- , 136	S.	Ct.	at	2169

- 70

. Nor does	 the	 refusal	 to	 submit	 expose	 the	 driver	 to	 any additional	 threat	 of immediate	 incarceration

. See 29

- A	 M.R.S.	 §	 2521(3). Instead, the statutory warnings make the	driver aware	that	a	choice	must	be	made , and they inform the driver of	the potential consequences of	refusing to	comply	with	the	duty	to submit	to	testing. See id. ; see	also Commonwealth	v.	Myers ,	164	A.3d	1162,	1164 (Pa.	 2017) ( stating that	 a	 statutory warning	 of	 the possible	 consequences	 of refus ing blood	 testin g informed	 the	driver	of	 the	right	 to	refuse) ; cf. Olevik	v. State ,	806	S.E.2d	505,	521

- 22	( Ga. 2017) (same, in	a	breath	testing	case)

.17 [¶ 2 6 ] The possible	consequences conveyed	in	those	warnings	relate to licensing,	 the	 admissibility	 of	 the	 refusal in evidence at trial,	 and	 increased minimum penalties for	 purposes	 of	 a	 court ’ s	 sentencing	 if	 the	 driver	 is convicted	 of	 OUI. See 29

- A M.R.S.	 §	 2521(3). As	 the	 Supreme	 Court	 has previously	determined,	neither	the threat	of evidentiary	use	of	the	refusal nor the threat	of license	suspension	render s the consent	involuntary. See	Birchfield , 579	U.S.	at

--- ,	136	S.	Ct.	at	2185 (referring	“approvingly	to	the	general	concept of	 implied

- consent	 laws	 that	 impose	 civil	 penalties	 and	 evidentiary
consequences	on	mo torists	who	refuse	to	comply”) ; McNeely ,	569	U.S. at 1 61 ; see	also South	Dakota	v.	Neville ,	459	U.S.	553,	559

- 60,	564

- 66	(1983) (holding that	a	license	suspension	 for	refusing	a	blood

- alcohol	 test	is	“unquestionably legitimate”	and that the	admission	of	a suspect ’ s	refusal	to	take	a	blood

- alcohol test	violates	neither	 the	privilege	against	self

- incrimination	nor	 the	suspect ’ s right	to	due	process)

. 10 The	question	then is	whether the additional threat	of a mandatory	minimum	sentence is unconstitutionally coe rcive and render s the consent	involuntary.

10 See	also Mackey	v.	Montrym ,	443	U.S.	1,	19	(1979) (“[T]he	compelling	interest	in	highway	safety justifies	the	Commonwealth	in	making	a	summary	suspension	effective	pending	the	outcome	of	the prompt	postsuspension hearing	availa ble.”).18 [¶ 2 7 ] The	 Court ’ s statement in Birchfield that	 “motorists	 cannot	 be deemed	 to	have	consented	 to	submit	 to	a	blood	 test	on	pain	of	committing	a criminal	 offense”	 specifically	 addressed	 true	 implied	 consent	 statutes that deem	a	motorist	to	have	consented	to	chemical	testing	in	advance and provide th at the	failure	to	consent	constitute s a	crime	in	itself

. Birchfield ,	579	U.S.

--- , 136	S.	Ct

. at	2186.		Wh ether	a statute deem s	a	driver to	have	consented or,	as	in Maine, imposes a	duty	to	submit	to	testin g,	the coercive effect is	the	same	if	the
statute punish es the	 refusal	 to	 submit	 to	 testing with	 a	 criminal	 offense. Accordingly,	if	Maine ’ s	statute s impose d a duty	 to	submit	 to	a	blood	 test	“on pain	of	committing	a	criminal	offense,” a n	officer ’ s warning that	it	is	a	crime	to refuse would	 be unconstitutionally	 coercive	 and	 c ould ,	 in	 the	 totality	 of	 the circumstances, undermine the voluntariness	of	the	driver ’ s	consent
. See id. [¶ 2 8 ] Maine’s	 statutes	 do	 not,	 however,	 have	 this	 effect.	 	 I n	 Maine, a driver ’ s refusal to	comply	with	the statutor y duty	to	submit	to a	blood	test upon probable	cause will result	in an	enhanced penalty ,	one	that	is	well	within the statutory	 maximum	 for	 any	 person	 charged	 with	 OUI, only if the driver is ultimately convicted	of	OUI after	that	refusal

. See 29

- A M.R.S. §§ 2411(5)(A)(1), (A)(3)(b ),	(B)(1),	(B)(2),	(C)(1),	(C)(2),	(D)(1),	(D)(2),	2521(3). To	illustrate, if the	defendant who	submits	to	testing has	had	no	prior	OUI	convictions	within19 the	previous	ten	years and	no other	penalty

- enhancing	facts are	present , a n	OUI offense	is	a	Class	D	crime,	which	is	punishable	by	imprisonment	for	up	to	364 days and	a	fine	of	$500	to	$2,000 , and there	is	no mandatory minimum	period of	 incarceration. 17

- A M.R.S.	 §§ 1252 (2)(D), 1253 (2

- A)(D) ,	 1301(1

- A)(D) (2017 ) ;	 29

- A	 M.R.S. § 2411(5)(A)	 (2017 ).	 	 If	 that	 same	 defendant is	 instead convicted of	 OUI after	 “fail[ing]	 to	 submit	 to	 a	 test	 at	 the	 request	 of	 a	 law enforcement	 officer,”	 the upper	limit of	 potential	imprisonment provided	 by
statute remains exactly the	 same

— u p	 to	 364	 day s — but	 the	 period	 of imprisonment must	 be	 at	 least	 “96	 hours.”	 	 29

- A M.R.S.	 § 2411(5)(A)(3)(b)

. Similarly,	 the	maximum	possible	 fine	is	unaffected,	 though	a	person	who	has “failed	 to	 submit	 to	 a	 test”	 is	 subject	 to	 a	 fine	 of	 at	 least	 $600. Id. § 2411(5)(A )(1). [¶ 2 9 ] Under	no	circumstances,	however,	does the	statute inc rease	 the level	 of	 the	 offense	 or otherwise	 increase	 the range beyond the maximum period	 of	 imprisonment	 or	 the	 maximum	 fine	 that	 may	 be	 imposed	 for	 the applicable	 class	 of	 the	 offense. See 29

- A	 M.R.S.	 §	 2521(3)(C); see	 also 17

- A M.R.S.	 § 1252 (2) (establishing	 the	maximum	period	 of	incarceration	 for each	 class	 of crime) ; 17

- A	 M.R.S.	 § 1301 (1

- A)	 (2017 ) ( establishing the maximum	fine	that	may	be	imposed	for	each	class	of	crime )

. Furthermore, in20 an	individual	case,	the	refusal	to	submit might not ,	practically	speaking, result in	any demonstrable increase	in	punishment whatsoever	because a	court	may impose	a	sentence	at	or	above	th e	statutory minimum	for any conviction	of	the charged	OUI offense. [¶ 30 ] Because	the	mandatory	minimum	sentence	applies	only upon an OUI	conviction	and the	statute does	not	criminalize	the	mere	act	of	refusing	to submit	 to	a	blood	 test,	and	b ecause	it	does	not	increase	a	driver ’ s maximum exposure	 to	 a	 fine	 or	 s entence	 of	 imprisonment,	 the statute ’ s	 setting	 of	 a mandatory	minimum	sentence if	a driver is	convicted	of OUI after	refusing to submit	to	a	blood	test despite	probable	cause is	not	a	“criminal	penalt[y]	on	the refusal	to	submit	to	such	a	test”	within	the meaning	of Birchfield

. 579	U.S.

--- , 136	 S.	 Ct. at	 2185. Although	 there	 is	 a “limit	 to	 the	 consequences	 to	 which motorists	may	be	deemed	to	have	consented	by	virtue	of	a	decision	to	drive	on public	roads , ” s ee id. , that	limit	is	not	exceeded	where the consequence	is	only the risk	of	an i ncreased minimum penalty if	a	driver, having	received	warnings of	 the	 consequences	 of	 a	 refusal, declines to	 submit	 to	 blood	 testing and	 is ultimately	convicted	of	OUI , se e 29

- A	M.R.S.	§ 2521 (1), (3); see	also 29

- A	M.R.S

. § 2411(5).21 [¶ 3 1 ] In	sum, when	probable	cause	exists, a	warrantless	blood	test	is	not unreasonable	when	a	driver	has	consented	to	testing	after	being	warned	that the	lower	limit	of	a	court ’ s	sentencing	range	will	increase	if	the	driver	refuses to	submit to	testing	and	is	ultimately	convicted	of	OUI

. C f.	Birchfield , 579	U.S.
at
--- ,	136	S.	Ct.	at	2185

- 86. The warnings given	based	on	the	statute are	legally sound	and	not	mislead ing

. See Barlow ,	320	A.2d	at	900; c f.	Birchfield , 579	U.S.
at
--- ,	136	S.	Ct. at	2185

- 86

. Put	another	way,	a	consent	given	in	response	to	the Maine	warnings	does	not	 represent	mere	 “acquiescence.” Va z quez , 724	 F.3d
at 23. [¶ 3 2 ] Here, LeMeunier

- Fitzgerald was	 accurately	 warned	 by	 the arresting	officer in	the	hospital that	she	had a	duty	to	submit	to	chemical	tests and	that	she	would	be	lawfully	subject	to	a	mandatory	minimum at	sentencing if convict ed	 of	 OUI after	 refusing	 to	 submit

. The	 warning s informed LeMeunier

- Fitzgerald	of	the other statutory	consequences	that	would	arise if she	 refused	 to	 submit	 to	 the	 test	 despite	 her duty	 to	 do	 so

. See	 Birchfield , 579 U.S.

--- , 136	S.	Ct.	at	2185. The warning s did	 not	constitute	any	 form	 of deceit,	misrepresentation,	or	trick ery . See	Barlow ,	320	A.2d at 900. Her	refusal did	not	give	rise	to	a	separate	criminal	charge. Cf.	Birchfield , 579	U.S.

--- , 136 S. Ct.	at	2186

. Aft er	receiving	the	information,	LeMeunier

- Fitzgerald	expressly22 agreed	to	undergo	the	blood	test. The	court	did	not	err	in	concluding,	in	the undisputed totality	of	the	circumstances,	that LeMeunier

- Fitzgerald ’ s	consent

was voluntary	 and	 not induced	 by	 unconstitutional	 coercion	 or misrepresentation ,	 and	 therefore	 the	 court	 properly	 denied	 her	 motion	 to
suppress. See Schneckloth ,	412	U.S. at 228 ; Barlow ,	320	A.2d at 900 ; see	also Tozier ,	2006	ME	105 ,	¶	6,	905	A.2d	836

. The	entry	is: Judgment affirmed.

GORMAN,	J. ,	with	whom	JABAR,	J.,	joins	and	HJELM,	J.,	joins	in	part,	dissenting

. [¶3 3 ] Today,	 the	 Court	 has	 concluded	 that,	 despite	 the explicit	 and implicit	 coercive	 threats found	 in	 Maine’s	 duty

- to
- submit	 statute,	 Lyanne LeMeunier

- Fitzgerald’s	 “consent”	 to	 having	 blood	 drawn	 was	 voluntary.	 	 I respectfully	dissent

. [¶3 4 ]		Consent ,	like	all	exceptions	to	the	requirement	of	a	warrant,	must be	narrowly	construed. State	v.	Sargent ,	2009	ME	125,	¶	10,	984	A.2d	831

. We have	long	held	that	consent	is	effective	in	a	Fourth	Amendment	analysis	only when	it	is	“freely	and	voluntarily	given ”	without	either	“implied	threat	or	covert force.” State	v.	McLain ,	367	A.2d	213,	216

- 17	(Me.	1976)

. C onsent	induced	by23 “deceit,	trickery	or	misrepresentation” or “physical	violence	or	threats”	cannot be	 said	 to	 have	 been	 given	 voluntarily. State	 v.	 Bar low ,	 320	 A.2d	 895,	 900 (Me. 1974)

. I	 believe that the	 Court	 err s	 in	 determining	 that LeMeunier

- Fitzgerald’s	 consent	 to	 having	 her	 blood	 drawn	 was	 “ freely	 and voluntarily	given ,”	as	 the	 Fourth	Amendment	demands. McLain ,	367	A.2d	at 216

- 17. [¶3 5 ]	 	 In Birch field	 v.	 North	 Dakota , the United	 States	 Supreme	 Court considered	consent	within	the intersection	of	state	“implied

- consent	laws”	and the	Fourth	Amendment’s	prohibition	on	unreasonable	searches	and	seizures

. 579	U.S.

--- ,	136 S.	Ct.	2160,	2176

- 78,	2184

- 85 (2016)

. Birchfield involved three factual scenarios. Id. at	2170

- 72.		In	the	two scenarios	involving	blood	tests, 11 defendants	 Danny	 Birchfield	 and	 Steve	 Beylund	 were,	 in	 separate	 incidents, arrested	 in	 North	 Dakota	 for	 driving	 while	 impaired. Id. at	 2170

- 72.	 	 After arrest,	each	was	asked	to	submit	to	a	warrantless	blood	test	to	determine	his degree	of	impairment. Id. Birchfield	refused	to	submit	to	the	test;	was	charged with	 and	 convicted	 of	 that	 refusal;	 and,	 as	 a	 result	 of	 a	 conditional	 plea, appealed	that	criminal	conviction. Id. at	2170

- 71.		Beylund	agreed	to	submit	to

11 The	third	 factual	scenario	involved	a	breath	test	rather	than	a	blood	test,	and it is	therefore distinguishable	on	that	basis. Birchfield	v.	North	Dakota ,	579	U.S.

--- ,	136	S.	Ct.	2160,	2171,	2176

- 78, 2186	(2016) ; State	v.	Boyd ,	2017	ME	36,	¶ 8,	156	A.3d	748

.24 the	 test	and,	after	 an	 administrative	hearing,	he	was	 fined	and	his	license	 to operate	motor	vehicles	was	revoked	for	two	years	based	on	the	results	of	the blood	test. Id .	at 2172,	2186.		Beylund	appealed	that	administrative	decision. Id

. at	2172. The	North	Dakota	Supreme	Court	affirmed	both	decisions,	and	the United	 States	 Supreme	 Court	 agreed	 to	 consider	 Birchfield’s	 and	 Beylund’s appeals	in	a	consolidated	argument. Id .	a t	2171

- 72. [¶3 6 ] Both	Birchfield	and	Beylund	were	informed	that	refusing	to	submit to	 a	 blood	 test	 would	 expose	 them	 to	 criminal	 penalties. Id. at	 2170,	 2172. Because	 Birchfield	 did	 not	 submit	 to	 the	 blood	 test, the	 voluntariness	 of	 a consent	to	search was	not	at	issue	in	his	case;	no	search	was	completed	because no	blood	was	drawn. Id. at	2170. Rather,	Birchfield	was	convicted	of	the	crime of	refusing	to	submit	to	the	blood	test	based	on	North	Dakota’s	implied	consent
statute in	 effect	 at	 the	 time

. 12 Id. at	 21 70

- 71; see N.D.	 Cent.	 Code	 Ann. §§ 39

- 08

- 01(1)(e),	 (2)

- (3), 39

- 20

- 01 , 39

- 20

- 14 ( LEXIS,	 2013	 N.D.	 Code Archive). Holding that	 reasonableness

— as	 “the	 touchstone	 of	 Fourth Amendment	 analysis”

— demands	 that	 “motorists	 cannot	 be	 deemed	 to	 have

12 At	the	time	of	Birchfield’s	arrest	in	North	Dakota,	refusing	to	submit	to	blood	alcohol	testing was	 itself	 a	 criminal	 offense	 for	 which	 the	 mandatory	 minimum	 sentence	 included	 a	 fine	 and addiction	treatment

. N.D. Cent.	Code	Ann.	§ 39

- 0 8

- 01(1)(e),	(2),	(5)(a)(1)	(LEXIS,	2013	N.D.	Code Archive) .		The	relevant	North	Dakota	statutes	have	since	been	amended	in	several	respects. See N.D. Cent.	Code	Ann.	§§ 39

- 08

- 01 , 39

- 20

- 01 , 39

- 20

- 14 (LEXIS	through	2017	Regular	Legis.	Session)

.25 consented	to	submit	to	a	blood	test	on	pain	of	committing	a	crim inal	offense, ”
t he	Supreme	Court	reversed	Birchfield’s	conviction	for	refusing	the	blood	test. Birchfield ,	579	U.S.	at

--- ,	136	S.	Ct.	at	2186. [¶3 7 ] Beylund,	 in	 contrast,	 submitted	 to	 the blood	 draw;	 he	 was	 not criminally	prosecuted	for	his	refusal,	but	he	was	fined	and	his	driver’s	license was	revoked	for	two	years	after	an	administrative	hearing. Id. at	2172,	2186. The	Supreme	Court	noted	that	the	violation	of	an	implied	consent	statut e could be	a	basis	for	imposing	civil	penalties	or	evidentiary	consequences	on	drivers without	 running	 afoul	 of	 the	 Fourth	Amendment. 13 Id. at	2185.		Even	in	 the context	 of	 an	 administrative	 matter,	 however,	 Beylund	 still	 enjoyed	 the constitutional	right	t o	refuse	to	consent	to	a	blood	test,	and	his	consent	to	such a	blood	test	was	still	effective	only	if	voluntary;	the	results	of	Beylund’s	blood test	would	be	inadmissible	in	the	administrative	proceeding	if	obtained	without
consent. Id. at	2186	&	n.9.		Th e Supreme Court	thus	remanded	the	matter	for the	 trial	court	 to	 reconsider	whether	 Beylund’s	 submission	 to	 the blood	 test

13 The	Supre me	Court	stated,	“Petitioners	do	not	question	the	constitutionality	of	those	laws,	and nothing	we	say	here	should	be	read	to	cast	doubt	on	them.” Birchfield ,	579	U.S.	at

--- ,	136	S.	Ct.	at 2185.	 	 LeMeunier

- Fitzgerald	 has	 not	 presented	 any	 argument	 that	 ei ther	 the	 suspension	 of	 her license	 or	 the	 admission	 of	 evidence	 of	 her	 refusal	 against	 her	 at	 trial	would	 violate	 the	 Fourth Amendment.26 was	truly	consensual, given	that	the	police	had	incorrectly	informed	Beylund that	refusing	the	blood	test	was	criminal. Id. [¶3 8 ]		I agree	that	Maine’s	imposed	sanctions	for	refusing	to	submit	to	a blood	draw	are	not precisely the	same	as	 those	discussed	in	any	of	 the	three cases	comprising	the Birchfield decision. See Court’s	Opinion	¶	2 5 .		In Maine, refusal	is	an	aggravating	 factor	i n	 the	sentencing	of	a	defendant	convicted	of operating	 under	 the	 influence	 ( OUI ) , 29

- A M.R.S.	 §§	 2411(5) , 2521 (2017), whereas	 in	 North	 Dakota	 at	 the	 time	 of	 Birchfield ’s and	 Beylund’s	 arrests, refusal	was	an	independent	crime, N.D. Cent.	Code	Ann.	§ 39

- 08

- 01(1)(e),	(2) (LEXIS,	 2013	 N.D.	 Code	 Archive)

. I	 respectfully	 disagree,	 however,	 with	 the Court’s	attempt to	distinguish	the effect of	the	criminal	penalties	in	Maine	from those	addressed	in	North	Dakota

. [¶3 9 ]		In both	states,	an	arrestee	is	persuaded	t o	submit	to	a	blood	test or	else	face	criminal	consequences	beyond	those	for	which	she	has	already	been arrested. Indeed,	a	comparison	of	 the	 two	states’	statutes	demonstrates	 that although	 Maine	 does	 not	 have	 a	 separate	 crime	 for	 refusal,	 the	 potential

c onsequences	to	a	defendant	for	a	refusal	are	harsher

— both	generally	and	as compared	to	a	nonrefusal	OUI	conviction

— in	Maine	than	in	North	Dakota.		By North	 Dakota	 statute	 in	 2013,	 a	 defendant	 was	 subject	 to	 exactly	 the	 same27 criminal	penalties	for	a	first	o ffense	refusal	as	for	a	first	offense	OUI,	that	is,	a minimum	 fine	 of	 five	 hundred	 dollars	 and	 required	 addiction	 treatment. N.D. Cent.	 Code	 Ann. §§ 39

- 08

- 01(1)(e),	 (2)

- (3),	 (5)(a) , 39

- 20

- 01(3) ( LEXIS , 2013	N.D.	Code	Archive) .		The	only	difference	between a	conviction	for	OUI	and one	for	refusal	was	that	those	who	were	convicted	of	refusing	a	blood	test	were also	subject	to	a	license revocation of	between	180	days	and	3	years.		N.D.	Cent. Code	Ann.	§	39

- 20

- 01(3).		Thus,	whether	convicted	of	OUI	or	refusal, a	North Dakota	 defendant	 was	 exposed	 to	 identical	 fine	 calculations	 and	 periods	 of incarceration. [¶ 40 ]	 	 In	 Maine,	 a	 first

- offense	 OUI	 conviction	 carries	 a	 minimum sentence	 of	 a	 $500	 fine	 and	 a	license	 suspension	 of	 150	 days. 14 29

- A	M.R.S. § 2411(5)(A)( 1)

- (2).	 	 If	 a	 defendant	 is	 convicted	 of	 OUI	 and,	 as	 part	 of	 that conviction,	the	State	also	proves	that	the	defendant	refused	a	breath	or	blood test,	 the	 court must impose	 a	 minimum	 fine	 of	 $600,	 a	 minimum	 license suspension	 of	 275	 days,	 and	 a	 minimum	 jail term	 of	 96	 hours.	 	 29

- A M.R.S. §§ 2411(5)(A)(1),	(3)(b),	2521(6).		That	means	that	each	individual	convicted of	 OUI,	 when	 that	 conviction	 involves	 a	 refusal,	 receives	 a	 sentence	 that

14 A	minimum	period	 of	incarceration	 of	 forty

- eight	hours	is	imposed	 for	an	OUI	conviction	if certain	aggravating	factor s	are	present. 29

- A	M.R.S.	§	2411(5)(A)(3)(a)	(2017)

.28 involves	an	additional	$100	in	fines,	a	license	suspension	that	is	exten ded	by 125 days,	and	a	4

- day	jail	sentence.		29

- A	M.R.S.	§§ 2411(5)(A)(1)

- (3),	2521(6). For	defendants	with	prior	offenses,	the	differences	between	an	OUI	and	an	OUI with	 refusal	 become	more	 significant

— a	 $700	 versus	 a	 $900	 fine	 and	 seven days	 in	 jail	 ver sus	 twelve	 days	 in	 jail	 as	 to	 a	 second	 offense;	 $1,100	 versus $1,400	and	thirty	days	versus	forty	days	for	a	third	offense;	and	$2,100	versus $2,500	and	six	months	versus	six	months	and	twenty	days	for	a	fourth	offense. 29

- A M.R.S.	§	2411(5)(B)(1)

- (2),	(C )(1)

- (2),	D(1)

- (2)

. [¶4 1 ]		The	Court	concludes,	however,	that	because	the	applicable	class	of the	offense	is	the	same	whether	the	defendant	is	convicted	of	OUI	or	OUI	with a	 refusal

— and	 therefore	 the maximum sentences	 are	 identical

— no “demonstrable	increase	in	punishment”	can	be	said	to	result	from	the	refusal. Court’s	Opinion	 ¶	 2 9 .	 	 This	 point	is	 grounded	 primarily	in	 the	 government’s interest	 in	 crime	 classification	 systems.	 	 In	 determining	 whether LeMeuni er - Fitzgerald’s	 consent	 was	 voluntarily	 given,	 however,	 we	 are primarily	 concerned	 with	 the	 effect	 of	 the	 government’s	 warnings on LeMeunier

- Fitzgerald

. See Birchfield ,	579	U.S.

--- ,	136	S.	Ct.	at	2186. That	she could	 be	 charged	 with	 the	 same	 class	 of	 cr ime	 with	 the	 same	 maximum sentence,	 whether	 or	 not	 she	 refused	 to	 submit	 to	 the	 blood	 test,	 does	 not29 render	 LeMeunier

- Fitzgerald’s	consent	 voluntary	in	light	of	 the	warning	 that one	 option

— refusing	 to	 submit

— would	 subject	 her	 to	 a	 higher	 minimum criminal	p enalty.		The	 sentence	 for	OUI might be	higher	 than	 the	mandatory minimum	for	OUI,	but	the	sentence	for	OUI	with	refusal must be	higher	than	the mandatory	minimum	for	OUI. [¶4 2 ]		Although	it	is	true	that	a	defendant	in	Maine,	unlike	a	defendant	in North	 D akota	 in	 2013,	 can	 be	 sentenced	 to	 those	 heightened	 terms	 only	 if convicted	of	the	underlying	OUI, 29

- A M.R.S.	§	2411(1

- A)(A),	(C)	(2017) , this	is a	 distinction	without	 a	 difference. Whether a criminal	 penalty	 for	 refusal	is labeled an	 independent	 crime, an	 increase	 in	 the	 class	 of	 crime ( thereby increasing	 the	 authorized	 sentence ) , or	 the	 imposition	 of	 a	 heightened authorized	or	mandatory	minimum	sentence,	the legal effect on	a	defendant is indistinguishable: the	defendant who	refuses	 to	submit	 to	a	blood test	and	is convicted	of	that	refusal	as	part	of	an	OUI	conviction	is	subjected	to a minimum criminal	 penalty for	 the	 refusal that	 otherwise would	 n ot	 apply. Given	 this identical	effect,	I	submit	that	we	must	evaluate	Maine’s	duty

- to
- submit	statute

as applied	to	LeMeunier

- Fitzgerald	according	to	the	Supreme	Court’s	analysis in Birchfield

.30 [¶4 3 ]		The crux	of	the	Supreme Court’s	disposition as	to	Birchfield	was its	 conclusion	 that	 it	 is	 a	 violation	 of	 the	 Fourth	 Amendment	 to	 expose	 a defendant	 to	 criminal penalties	 for	 his	 or	 her	 lawful	 exercise	 of	 the	 right	 to withhold	 consent	 to	 a	 search	 in	 the	 form	 of	 a	 blood	 test. See Birchfield , 579 U.S. at
--- ,	 136	 S.	 Ct.	 at	 2186. This	 conclusion	is	 supported	 by	 countless decisions	 prohibiting	 the	 government	 from	 f orcing	 a	 person	 to	 waive	 a constitutional	right. See,	e.g. , Iowa	v.	Tovar ,	541	U.S.	77,	81	(2004) (“ Waiver	of the	right	to	counsel,	as	of	constitutional	rights	in	the	criminal	process	generally, must	 be	 a	 knowing,	 intelligent	 ac t done	 with	 sufficient	 awar eness	 of	 the relevant	 circumstances. ”	 (alteration	 omitted)	 (quotation	 marks	 omitted)); Miranda	v.	Arizona ,	384	U.S.	436,	476	(1966) (“[A]ny	evidence	that	the	accused was	threatened,	tricked,	or	cajoled	into	a	waiver	will,	of	course,	show	that	the defendant did	not	voluntarily	waive	his	privilege.”); State	v.	Hill ,	2014	ME	16, ¶¶	5

- 6,	86	A.3d	628 (stating	that	a	waiver	of	the	constitutional	right	to	counsel must	be	“voluntary,	knowing,	and	intelligent”); State	v.	Prescott ,	2012	ME	96, ¶¶	 11

- 17,	 48	 A.3d	 218 (holding	 that	 the	 defendant’s	 statements	 to	 police

— which	were	made	when	the	defendant	reasonably	felt	she	was	constrained	by the	 police

— must	 be	 suppressed); State	 v.	 Tuplin ,	 2006	 ME	 83,	 ¶¶	 19

- 20, 901 A.2d	 792 (discussing	 the	 best	 practice	 to	 a void	 the	 def endant	 “feel[ing]31 pressured	 into	 giving	 up	 his	 right	 to	 remain	 silent”).	 	 Fourth	 Amendment jurisprudence	imposes	no	duty	on a criminal	defendant	to	consent or	submit to a	search. See	Barlow ,	320 A.2d	at	899	(“Coercion	which	will	invalidate	consent and	 ren der	 a	 search	 unreasonable	 in	 constitutional	 reference	 is	 not	 solely confined	to	a	consent	obtained	by	threats	or	force,	but	is	equally	operative	in those	situations	where	the	consent	is	granted	only	in	submission	to	a	claim	of lawful	authority.”). [¶4 4 ] T he	 crux	 of	 the	 Supreme	 Court’s	 disposition regarding Beylund was	its	conclusion	that	threatening	to	expose	a	defendant	to	criminal	penalties for	exercising	his	lawful	right	to	refuse	a	blood	test	implicates	the	voluntariness of	a	person’s	consent	to	such	a blood	test even in	the	context	of	administrative proceedings. See Birchfied ,	 579	 U.S.	 at

--- ,	 136	 S.	 Ct.	 at	 2186. The logical corollary	to	both	principles	is	that	it	is	a	violation	of	the	Fourth	Amendment	to allow	the	State,	in	a	criminal	matter,	to	use	the	evidence	obtained	from	a	search undertaken	after	warning	the	accused	that,	if	she	is	convicted	of	OUI,	her	refusal will	be	used	as	evidence	against	her	during	trial	and,	if	prove d ,	will	subject	her to	an	increased	criminal	penalty. [¶4 5 ] In	 a	 criminal	 prosecution,	 when	 the	 State	 fails	 to	 obtain	 the warrant	that	is	the	hallmark	of	a	reasonable	search	and	seizure	and	w hen	no32 exigent	circumstances	otherwise	exist,	the	State	may	not	use	the	only	avenue remaining	 to	 justify	 the	 search

— obtaining	 the	 suspect’s	 consent	 to	 the search

— by	informing	the	suspect	that	she	has no	lawful	choice	but	to	consent

. Just	as	it	is	per	se	u nreasonable	to	subject	a	defendant	to	a	criminal	penalty	for refusing	a	blood	test,	the	threat	of	such	a	criminal	penalty	negates	any	consent given	after	such	a	warning	in	the	context	of	a	criminal	prosecution. In	my	view, LeMeunier

- Fitzgerald’s	consent	 t o	her	blood	 test	in	 these	circumstances	was coerced	 and	 involuntary	 as	 a	 matter	 of	 law. See	 Birchfield ,	 579	 U.S.	 at

--- , 136 S. Ct.	at	2186. [¶4 6 ] Because LeMeunier

- Fitzgerald ’s consent	 was	 not	 “freely	 and voluntarily	given,” the	test	was	an	unreasonab le	search	within	the	meaning	of the	 Fourth	 Amendment. The	 long

- established	 remedy	 for	 unreasonable searches	is set	out	in the	exclusionary	rule:	the	evidence	obtained	as	a	result	of that	 unreasonable	 search	 was	 therefore	 inadmissible	 at	 trial. 15 See Mapp v. Ohio ,	367	U.S.	643,	655

- 60	 (1961) ; State	v. McNaughton ,	2017 ME	173,	 ¶ 42,

15 The	application	of	the	exclusionary	rule	is	distinguishable	 from	the	point	made	in Birchfield that,	in	its	earlier	decisions,	the Supreme Court	had	“referred	approvingly	to	the	general	concept	of im plied

- consent	laws	 that	 impose	 civil	 penalties	 and	 evidentiary	 consequences	 on	 motorist	who refuse	to	comply.”		579	U.S.	at

--- ,	136	S.	Ct.	at	2185.		There,	the	Supreme	Court	was	discussing	the admission	of	the fact of	the	defendant’s	refusal, id. ,	whereas LeMeunier

- Fitzgerald’s	case	regards	the admission	of	the evidence	obtained	as	a	result of	an	unreasonable	search	performed	in	the	absence	of a	warrant,	exigent	circumstance,	or	consent.33 168	 A.3d	 807 ; State	 v. Hawkins ,	 261	 A.2d	 255,	 257

- 58	 (Me.	 1970)

. I	 would
vacate LeMeunier

- Fitzgerald ’s	 conviction	 and	 remand	 with	 instructions	 to grant	her	motion	to	suppress the	results	of	her	blood	alcohol	test. 16

JABAR,	J.,	dissenting. [¶ 4 7 ]	 	 I	 agree	 with	 Justice	 Gorman’s	 analysis,	 but	 I	 write	 separately because	 I	 do	 not	 believe her dissent	 goes	 far	 enough.	 	 I	 agree	 that LeMeunier

- Fitzgerald’s	 consent	 to	 the	 blood	 test ,	 obtained	 under	 what amounted	 to	 the	 threat	 of	 an	 enhanced	 criminal	 penalty,	 was	 coerced	 and involuntary	 as	 a	 matter	 of	 law.	 	 Gorman,	 J.,	 Dissenting	 Opinion	 ¶ ¶ 4 2 ,	 4 5

. However,	I	have	additional	serious	concerns	with	the	State’s	implied	consent form,	whi ch	inform s drivers (1) that	there	exists	a	“duty”	to	submit	to	a	blood test,	 and	 (2)	 that	 evidence	 of	 refusal	 will	 be admissible in	 evidence	 at	 trial against	the	accused driver .		These	two	representations within	the	form

— and read	to	LeMeunier

- Fitzgerald

— constitute	misrepresentations	of	the	law.

16 The	State	argues	that	suppression	of	the	test	results	was	not	req uired	because	the	officer	was acting	 in	 “good	 faith	 reliance	 on	 existing	law,”	 which,	 it	 argues,	 is	 a	 recognized	 exception	 to	 the exclusionary	rule	that	applies	when	“new	developments	in	the	law	have	upended	the	settled	rules	on which	the	police	relied.” United	States	v.	Sparks ,	711	F.3d	58,	6 8 (1st	Cir.	2013) ; see Davis	v.	United States ,	564	U.S.	229,	236	(2011) .		We	have	not	heretofore	adopted	this	rule	and	I	see	no	reason	to	do so	 regarding	 the	 consent	 exception	 to	 the	 requirement	 of	 a	 warrant	 imposed	 b y	 the	 Fourth Amendment. See	 Birchfield ,	 579	U.S.	 at

--- ,	 136	 S.	 Ct.	 at	2186	 n.9	 (citing Heien	 v.	North	 Carolina , 574 U.S.

--- ,	135	S.	Ct.	530	(2014) ).34 A. Duty	to	Submit	to	a	Blood	Test [¶ 4 8 ]		In	this	case,	the	police	officer	used	Maine’s	implied	c onsent	form to	 advise	 LeM eunier

- Fitzgerald	 of	 her	 duty	 to	 submit	 to	 a	 blood	 test	 for	 the purpose	of	determining	he r	blood	alcohol	level.		The	Court,	however,	addresses only	a	portion	of	the	implied	consent	form	that	the	officer	read	to	the	defendant. Court’s	Opinion	¶	4 .		The	police	officer	also	read	 the	 following	portion	of	 the form	to	LeMeunier

- Fitzgerald: By	 oper ating	 or	 attempting	 to	 operate	 a	 motor	 vehicle	 in	 this State[,]	you	have	a	duty	to	submit	to	and	complete	chemical	tests to	determine	your	alcohol	level	and	drug	concentration. [¶ 4 9 ]		This	language	in	the	form,	which	pre

- dated Birchfield ,	applied	to “chemical	 tests”:	both	breath	and	blood	 tests. Birchfield changed	everything with	regard	to	blood	tests

— and	Maine’s	implied	consent	form	should	no	longer state	that	defendants	have	a	“duty”	to	submit	to	a	blood	test. See Birchfield	v. North Dakota ,	 579	 U.S.

--- ,	 136	 S.	 Ct.	 2160,	 2185	 (2016) (concluding	 “that	 a breath	test, but	not	a	blood	test ,	may	be	administered	as	a	search	incident	to	a lawful	 arrest	 for	 drunk	 driving”)	 (emphasis	 added). Birchfield now	 requires law	enforcement	to	obtain	a search	warrant	to	extract	blood	from	a	defendant for	purposes	of	a	blood	test	to	determine	the	alcohol	level	of	the	defendant. I d. at	2184.35 [¶ 50 ]		The	United	States	Supreme	Court	and	this	Court	have	recognized exceptions	to	the	warrant	requirement. Se e,	e.g. , Kentucky	v.	King ,	563	U.S.	452, 459	 (2011) ; State	 v.	 Boyd ,	 2017	 ME	 36,	 ¶	 8,	 156 A.3d	 748. Consent	 by	 the defendant	is	a	well

- recognized	exception	to	the	need	for	search	warrants. See, e.g. , Schneckloth	v.	Bustamonte ,	412	U.S.	218,	219	(1973) .		T he	pivotal	issue	in this	case	is	whether	LeMeunier

- Fitzgerald	voluntarily	gave	her	consent	to	the taking	of	her	blood.		There	is	a	great	deal	of	jurisprudence	setting	out	how	we evaluate	 whether	 a	 defendant	 has	 voluntarily	 consented	 to	 a	 warrantless search

. See,	e.g. , State	v.	Nadeau ,	2010	ME	71,	¶¶	17,	56,	1	A.3d	445 ; State	v. Bailey ,	2010 ME	15,	¶¶	22

- 24,	989	A.2d	716 ; State	v.	Faulkner ,	586	A.2d	1246, 1247	(Me.	1991) ; State	v.	Fredette ,	411	A.2d	65,	68	(Me.	1979) ; State	v.	McLain , 367	 A.2d	 213,	 216

- 17 (Me.	 1976) ; State	 v.	 Barlow ,	 320	 A.2d	 895,	 899 (Me. 1974)

. [¶ 5 1 ]	 	 Citing Barlow ,	 among	 other	 sources	 of	 law,	 the	 Court acknowledges	 that	 consent	 cannot	 be	 voluntary	 if	 it	 is	 induced	 by misrepresentation. Court’s	 Opinion	 ¶¶	 22 ,	 3 2 .	 	 The Barlow Court,	 citin g	 to Supreme	 Court	 precedent,	 explained	 “that	 a	 search	 cannot	 be	 justified	 as reasonable	 and	 lawful	 on	 the	 basis	 of	 consent	 when	 that	 ‘consent’	 has	 been given	 only	 after	 the	 official	 conducting	 the	 search	 has	 asserted	 an	 alleged36 authoritative	 right	 to	 sear ch.” Barlow ,	 320 A.2d	 at	 900	 (quoting Bumper	 v. North	Carolina ,	391	U.S.	543,	550	(1968) ).		In Barlow ,	th is	Court	specifically	said that, [w]here	 an	 officer	 .	 .	 .	 conveys	 to	 the	 defendant	 by	 affirmative misrepresentation s that	 he	 has	 the	 right	 to	 search	 w ithout	 a warrant	as	in	the	instant	case,	the	defendant’s	consent	to	the	search given	in	response	to	such	false	assertions	must	be	regarded	as	the mere	 submission	 of	a	law

- abiding	citizen	 to	an	 officer	 of	 the	law and	cannot	be	construed	as	a	valid	waiver	of [her]	constitutional rights	against	an	unreasonable	search	and	seizure. 320	A.2d	at	900. [¶ 5 2 ]		Here, Birchfield compels	us	to	conclude	that	the	implied	consent warning	 stating	 that	 a	 defendant	 has	 a	 duty	 to	 submit	 to	 a	 chemical	 test	 to determine her a lcohol	 level	 is	 a	 misrepresentation	 of	 the	 law.	 	 This	 is	 no different	than	the	police	officers	in Barlow who	told	the	defendant	that	they	had the	right	to	search	without	a	warrant. See	Barlow ,	320	A.2d	at	898

- 99.		Both involved	 misrepresentations	 of the l aw	 intended	 to	 overcome	 a	 defendant’s right	 to	 withhold	 consent	 to	 a	 search.	 	 In	 light	 of Birchfield , LeMeunier

- Fitzgerald	 did	 not	 have	 a	 duty	 to	 take	 a	 blood	 test;	 she	 had	 an absolute	right to refuse	to	consent to	a	blood	test. See	Birchfield , 569	U.S.	at

--- , 136 S. Ct.	at	2186.		Therefore,	just	as	the	threat	of	an	enhanced	criminal	penalty is	coercive	as	a	matter	of	law,	a	police	off ic er’s	statement	that	a	defendant	has37 a	“duty	to	submit	to	and	complet e	chemical	tests	to	determine	. .	.	alcoho l	level and	drug	concentration” is	coercive	as	a	matter	of	law. B. Comment	on	Evidentiary	Consequences	of	Refusal [¶ 5 3 ]	 	 The	 second	 statement	made	 to	 the	 defendant	 also	 constitutes	 a misrepresentation	 of	 the	law.		The	police	 officer,	again	 reading	 from Maine’s implied	consent	form,	stated	to	LeMeunier

- Fitzgerald: 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. Because Birchfield gives	a	defendant the	constitutional	right	to	refuse	to	submit to	a	blood	test,	informing	LeMeunier

- Fitzgerald	that	if	she	refused,	that	refusal would	be admissible against	her	at	 trial,	was	a	misrepresentation	of	 the	law, and	thus	coercive. [¶ 5 4 ]		We	recently	held	in Sta te	v.	Glover that	the	State	may	not	comment on	a	defendant’s	failure	to	give	consent	to	a	search. See 2014	ME	49,	¶ ¶ 16

- 17 , 89 A.3d	1077 .		In Glover ,	the	defendant	exercised	his	constitutional	right	not	to submit	to	a	warrantless	DNA	test,	and	the	State	r epeatedly	referenced	Glover’s refusal	to	consent	to	the	warrantless	search. Id. ¶	14

. Relying	on	the	principle that the “ value	of	constitutional	privileges	is	largely	destroyed	if	persons	can	b e penalized	 for	 relying	 on	 them, ” id. ¶	 13	 (quotation	 marks	 o mitted),	 we38 “conclude[d]	 that	 the	 manner	 in	 which	 Glover’s	 exercise	 of	 a	 constitutional right	was	used	to	penalize	him	at	trial	[was]	fundamentally	unfair	and	contrary to	 the	 principles	 of	justice	 that	 encourage	 the	 free	 exercise	 of	 constitutional rights , ” i d. ¶	16. [¶ 5 5 ]		After Glover, telling	a	defendant	that	the	prosecution	will	use	her refusal	 against	 her	 if	 she	 does	 not	 agree	 to	 the	 blood	 test	 is	 a	 significant misrepresentation	of	the	law.		Ultimately,	it	is	not	important	what	could	happen at	trial; it	is	the	misrepresentation	of	the	law	at	the	time	of	the	inducement	of consent	that	is	of	import.		When	an	officer	misrepresents	the	law	and	allows	the defendant	to	believe that	any	refusal	to	consent	will	be	used	against	her	at	trial, the	misrepresentat ion	is	inherently	coercive. [¶ 5 6 ]	 	 I	 would	 hold	 that	 it	 was	 coercive	 as	 a	 matter	 of	 law	 to	 tell LeMeunier

- Fitzgerald	 the	 following	 three	 things:	 (1)	 that	 she	 would	 face	 an enhanced	criminal	penalty	for	refusal	to	submit	to	a	blood	test,	(2)	that	she	had

a “duty	 to	submit”	 to	 the	blood	 test,	and	(3)	 that	any	evidence	of	her	 refusal would	be	admissible	against	her	in	a	 trial.		The State’s	implied	consent	 form should	be	modified	to	remove	the	language	that	misrepresents	the	law	in	light of Birchfield

.39

HJELM,	J.,	dissenting. [¶ 5 7 ]		 I	join	 Justice	Gorman	in	her	dissent	 from	 the	Court’s	conclusion that	no	coercion results	from a	law	enforcement	officer’s	statement	to	a	driver that,	if	she	is	ultimately	convicted	of	OUI,	her	failure	to	submit	to	a	blood	d raw would	 subject	 her	 to	 an	 enhanced	 criminal	 penalty

— including	 a	 minimum mandatory	jail	 term.		 I	part	ways	with	 Justice	Gorman’s	 analysis	 only	 on	 the issue	of	the	legal	and	procedural	consequences	of	our	mutual	conclusion	that the	 officer’s	duty

- to
- submit warning	was	coercive.		 In	my	 view,	 the	coercion resulting	from	the	warning	given	to LeMeunier

- Fitzgerald	does	not	render	her submission	 to	 the	 blood	 draw	 involuntary	 as	 a	 matter	 of	 law.	 	 Rather,	 the coercive	 effect	 of	 the	 warning	 is	 one	 factor within the totality	 of	 the circumstances	that	the	trial	court	must	consider	in	its	voluntariness	analysis. For	that	reason,	I	would	remand	the	matter	for	the	court	to	reconsider	the	issue of	 whether LeMeunier

- Fitzgerald’s	 submission	 to	 the	 blood	 draw	 ultimately

was voluntary. [¶ 5 8 ]		In	the	face	of LeMeunier

- Fitzgerald’s	challenge	to	the	admissibility of	 evidence	 obtained	 from	 the	 blood	 sample,	 the	 State	 bore	 the	 burden	 of proving	that	her	consent	to	the	search	that	produced	the	blood	sample	“was,	in40 fact,	freely	and voluntarily	given.” State	v.	Bailey ,	2010	ME	15,	¶	22,	989	A.2d 716	 (quotation	 marks	 omitted) .	 	 It is	 a	 basic	 principle	 of	 law	 that	 when	 an accused	 challenges	 the	 voluntariness	 of	 a	 consent	 to	 search,	 a	 court	 is	 to adjudicate	 the	 issue	 based	 on	 the totality	 of	 the	 circumstances. 17 See,	 e.g., Birchfield v.	North	Dakota ,	 579	U.S.

--- ,	136	 S.	 Ct.	 2160, 2186 (2016) ; Ohio	 v. Robinette ,	519	U.S.	33,	40	(1996) (explaining	that	voluntariness	of	a	consent	to a	 search	 is	 “a	 question	 of	 fact	 to	 be	 determined	 fr om	 all	 the	 circumstances” (quotation	marks	omitted )); Schneckloth	v.	Bustamonte ,	412 U.S.	218,	224

- 26 (1973) (explaining	that	voluntariness	is	determined	by	an	assessment	of	“the totality	 of	 all	 the	 surrounding	 circumstances”	 and	 does	 not	 “turn[]	 on	 the
pr esence	or	absence	of	a	single	controlling	criterion”); United	States	v.	Trueber , 238	F.3d	79,	95	(1st	Cir.	2001) (“The	question	of	voluntariness	[of	consent to	a search	and	questioning]	is	a	question	of	fact	determined	by	the	totality	of	the circumstances. ”); State	 v.	 Marquis ,	 2018	 ME	 39,	 ¶	 17,	 181	 A.3d	 684 (“The determination	of	consent	is	a	mixed	question	of	fact	and	law	to	be	determined

17 The	same	principle	applies	to	the	issue	of	voluntariness	in	other	contexts,	such	as	statements to law enforcement. See,	 e.g., Dickerson	 v.	 United	 States ,	 530	 U.S.	 428,	 433

- 34	 (2000) (“The determination	[of	voluntariness	of	a	confession]	depends	upon	a	weighing	of	the	circumstances	of pressure	 against	 the	 power	 of	 resistance	 of	 the	 person	 confessing.”	 (quotation	 marks	 omitted)); United	States	v.	Palmer ,	203	F.3d	55,	60	(1st	Cir.	2000) (“To	determine	the	voluntariness	of	a	waiver [of Miranda rights],	it	is	necessary	to	look	at	the	totality	of	the	circumstances	.	.	.	.”); State	v.	Hunt , 2016	ME	172,	¶¶ 19

- 22,	151	A.3d	911 (explaining	that	voluntariness	of	a	confession	is	determined by ex amining	the totality	of	the	c ircumstances).41 from	 all	 the	 circumstances	 existing	 at	 the	 time	 of	 the	 search.”); Bailey , 2010 ME 15,	 ¶¶	 23

- 24,	 989	 A.2d	 716 (“As	 with other	 factors	 bearing	 on voluntariness,	whether	a	misrepresentation	of	the	purpose	of	a	search	by	the police	 invalidates	 consent	 is	 a	 question	 of	 fact	 based	 on	 the	 totality	 of	 the circumstances.”); State	v.	Barlow ,	320	A.2d	895,	899	(Me.	1974) (“Whether	a given	 consent	 to	 a	 search	 in	 a	 particular	 case	 was	 in	 fact	 voluntary	 or	 the product	 of	 duress,	 coercion,	 express	 or	 implied,	 is	 a	 question	 of	 fact	 to	 be determined	from	the	totality	of	all	the	surrounding	circumstances.”). [¶ 5 9 ]		Here,	despite	the	lesson s	of Birchfield , the	court	failed	to	assign any coercive	effect	to	the	mandatory	minimum	sentence

- related	information	given by	 the	 officer	 to LeMeunier

- Fitzgerald.	 	 For	 the	 reasons	 explained	 in	 Justice Gorman’s	dissent,	the	court’s	analysis	was	erroneous.		That	error,	however,	is not	dispositive	and	does	not	warrant	the	conclusion	as	a	matter	of	law	that	the challenged	evidence	must	be	excluded.		This	is because	evidence	 of	coercion arising	from	the	duty

- to
- submit	warning	is	but	one	element

— albeit	potentially a	 significant	 one

— within	 the	 universe	 of	 circumstances	 revealed	 by	 the evidence	 presented	 at	 the	 motion	 hearing.	 	 Indeed,	 although	 the	 parties stipu lated	to	certain	facts,	including	the	content	of	the	refusal

- related	warnings provided	to LeMeunier

- Fitzgerald,	the	State	also	presented	testimony	from	the42 officer	describing	“the	scene”	at	the	hospital,	where	the	officer	informed	her	of the	 consequences	 o f	 a	 refusal.	 	 In	 that	 testimony,	 the	 officer	 described LeMeunier

- Fitzgerald’s	 demeanor	 during	 his	 interactions	 with	 her,	 her conduct,	and	other	factual	matters	such	as	her	execution	of	a	medical	release form.		All	of	this	information	is	material	to	reveal the	broader	context	in	which LeMeunier

- Fitzgerald	decided	to	submit	to	the	blood	draw	and	which	the	court must	 consider

— in	 conjunction	with	 the	 coercive	warning

— when	 evaluating the	voluntariness	of	that	decision. [¶ 60 ]		In Birchfield ,	after	determining	t hat	the	implied	consent	warnings were	improper,	the	Court	remanded	the	Beylund	matter	for	the	trial	court	to reconsider	 whether,	 based	 on	 the	 totality	 of	 the	 circumstances	 and notwithstanding	 the	 coercive	 effect	 of	 the	 warnings,	 Beylund’s	 consent	 was volun tary.		579	U.S.

--- ,	136	S.	Ct.	at	2186

- 87.		In	my	view,	the	same	situation exists	here.		Because	the	trial	court	committed	legal	error	in	its	treatment	of	the warnings,	 I	 would	 remand	 the	 matter	 for	 the	 court	 to	 reconsider	 whether, based	on	the	totality	o f	the	circumstances that	includes the	coercion	created	by the	duty

- to
- submit	warning

— the	State	has	proved	that LeMeunier

- Fitzgerald voluntarily	submitted	to	the	blood	draw.43 Jamesa	 J.	 Drake,	 Esq.	 (orally),	 and	 Zachary	 L.	 Heiden,	 Es q.,	 American	 Civil Liberties	Un ion	of	Maine	Foundation,	Portland, and	D arrick	X.	Banda,	Esq.,	Law Offices	 of	 Ronald	 W.	 Bourget,	 Augusta, for	 appellant	 Lyanne	 Lemunier

Fitzgerald Maeghan	 Maloney,	 District	 Attorney, and Kate	 E.	 Marshall,	 Asst.	 Dist.	 Atty. (orally) , Prosecutorial	District	IV,	Augusta,	for	appellee	State	of	Maine Tyler	J.	Smith,	Esq.,	Libby	O ’ Brien Kingsley	&	Champion,	LLC,	Kennebunk,	for amicus	curiae	Maine	Association	of	Criminal	Defense	Attorneys Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen., Department of	the	Attorn ey	General,	Augusta,	for	amicus	curiae Department	of the	Attorney	General

Kennebec	County	Unified	Criminal	Docket	d ocket	number	CR

- 2016

- 222 F OR C LERK R EFERENCE O NLY