State of Maine v. McAleney

• Court: Superior Court of Maine
• Decided: August 5, 2015
• Docket: CUMcr-15-2251
• Status: Unpublished

Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET CUMBERLAND, ss. No. CR-15-2251

STATE OF MAINE

v. ORDER

LEE McALENEY,

Defendant

A hearing was held on defendant Lee McAleney's motion to suppress the results of a

blood test on July 30, 2015. The parties were given until August 3 to submit any further authority

if they chose, and none has been submitted.

The court finds as follows:

Just before midnight on March 6, 2015, Sgt. Marc Marion of the Cumberland County

Sheriffs office stopped McAleney's vehicle. He undertook field sobriety tests, on which she

performed poorly, and arrested her for OUI. McAleney does not challenge the legality of the stop

or the existence of probable cause for arrest.

Marion then drove McAleney to the Cumberland County Jail for an intoxilyzer test.

Before Marion could administer the test, when McAleney was about to begin the observation

period, she vomited on the floor. Considering the circumstances, Marion decided to administer a

blood test.

McAleney agreed to have a blood sample taken. Marion then called for a person licensed

to draw blood.

Gorham Officer Dean Hannon, who is licensed as an advanced emergency medicine

technician and in that capacity is authorized to draw blood samples, arrived at the Jail when McAleney had been waiting about 20 minutes. By this time it was approximately 1:41 am on

March 7.

Before he broke the seals on his blood test kit, Hannon asked McAleney if she would

consent to the taking qf a blood sample, and she said yes. Hannon then broke the seals and

McAleney signed the consent form that accompanies the blood test kit. The consent form was

admitted into evidence at the hearing, and the text over McAleney's signature states, ""Let my

signature state that I have given consent for these blood samples to be taken. McAleney was

very cooperative through her interactions with both Sgt. Marion and Officer Hannon.

No search warrant was sought or obtained for the blood draw. Because McAleney

consented to the blood draw, neither Sgt. Marion nor Officer Hannon found it necessary to read

her the implied consent form.

Counsel for McAleney argues that based on Missouri v. McNeely, 133 S.Ct. 1552 (2013),

no blood draw could be taken without a search warrant. The McNeely case, however, is

distinguishable because the defendant in McNeely had refused to consent to a blood draw and the

issue in McNeely was whether the natural metabolization of alcohol in the blood constitutes a per

se exigent circumstance that excused the need to obtain a warrant. The court held that whether

exigent circumstances exist must be evaluated on a case-by-case basis depending on the totality

of the specific circumstances in each case.

In this case McAleney consented a blood draw. It is the State's burden to demonstrate by

a preponderance of the evidence that consent was given voluntarily. State v. Bailey, 2010 ME 15

~ 19, 969 A.2d 716. The State has met that burden in this case. On this record there is no

evidence that McAleney did not voluntarily consent. Although the defense argues that her

consent was involuntary because she was in custody, the court finds that the officers' testimony

2 establishes that McAleney was cooperative throughout and that she freely manifested her consent

to the blood sample orally to the officers and in writing on the consent form.

Defendant's motion to suppress is denied.

Dated: August ~' 2015

Thomas D. Warren Justice, Superior Court

3 STATE OF MAINE CRIMINAL DOCKET VS CUMBERLAND, ss. LEE S MCALENEY Docket No CUMCD-CR-2015-02251 62 JIM SMALL RD CASCO ME 04015 DOCKET RECORD DOB: 07/09/1963 Attorney: CHRISTOPHER LEDWICK State's Attorney: CHRISTINE THIBEAULT THE LEDWICK LAW FIRM PO BOX 884 BRUNSWICK ME 04011 RETAINED 04/2112015 Charge(s) 1 QUI (ALCOHOL) 03/07/2015 NAPLES Seq 12942 29-A 2411(1-A)(A) Class D MARION CUM Docket Events: 04/23/2015 Charge(s): 1 TRANSFER- PERMANENT TRANSFER EDI ON 04/23/2015 at 04:34p.m.

TRANSFERRED CASE: SENDING COURT CASEID BRIDCCR201500147 FILING DOCUMENT- NON CASH BAIL BOND FILED ON 03111/2015

Charge(s): 1 HEARING- ARRAIGNMENT SCHEDULED FOR 04/2112015 at 08:30a.m.

NOTICE TO PARTIES/COUNSEL Charge(s): 1 HEARING- ARRAIGNMENT NOT HELD ON 04/2112015

BAIL BOND- $2,500.00 UNSECURED BAIL BOND FILED ON 03/11/2015

Bail Amt: $2,500 Date Bailed: 03/07/2015 BAIL BOND- UNSECURED BAIL BOND CONTINUED AS SET ON 04/2112015

Date Bailed: 03/07/2015 Charge(s): 1 SUPPLEMENTAL FILING- COMPLAINT FILED ON 04/13/2015

Party(s): LEES MCALENEY ATTORNEY- RETAINED ENTERED ON 04/21/2015

Attorney: CHRISTOPHER LEDWICK Charge(s): 1 PLEA- NOT GUILTY ENTERED BY COUNSEL ON 04/21/2015

Charge(s): 1 FINDING- PERMANENT TRANSFER TRANSFERRED ON 04/22/2015

CUM CD 04/29/2015 Charge(s): 1 TRANSFER- PERMANENT TRANSFER RECVD BY COURT ON 04/29/2015 TERESA SAWYER-BLACK , ASSISTANT CLERK BRIDC CR-2015-147 04/29/2015 HEARING- DISPOSITIONAL CONFERENCE SCHEDULED FOR 07/07/2015 at 10:00 a.m. in Room No. 7 CR-200 Page 1 of 2 Printed on: 08/06/2015 LEE S MCALENEY CUMCD-CR-2015-02251 DOCKET RECORD

04/29/2015 Charge(s): 1 TRIAL- JURY TRIAL SCHEDULED FOR 08/10/2015 at 08:30a.m. in Room No. 11

NOTICE TO PARTIES/COUNSEL 07/07/2015 HEARING- DISPOSITIONAL CONFERENCE HELD ON 07/07/2015 JEFF MOSKOWITZ , JUDGE Attorney: CHRISTOPHER LEDWICK DA: ANGELA CANNON MOTION TO BE FILED AND HEARD 7-23-15. 07/09/2015 MOTION- MOTION TO SUPPRESS FILED BY DEFENDANT ON 07/09/2015

07/09/2015 HEARING- MOTION TO SUPPRESS SCHEDULED FOR 07/23/2015 at 01:00p.m. in Room No. 1

NOTICE TO PARTIES/COUNSEL 07/22/2015 MOTION- MOTION TO CONTINUE FILED BY STATE ON 07/22/2015

MOTION HEARING 7-23-15. 07/23/2015 MOTION- MOTION TO CONTINUE GRANTED ON 07/23/2015 ROLAND A COLE , JUSTICE COPY TO PARTIES/COUNSEL 07/23/2015 HEARING- MOTION TO SUPPRESS CONTINUED ON 07/23/2015 ROLAND A COLE , JUSTICE 07/23/2015 HEARING- MOTION TO SUPPRESS SCHEDULED FOR 07/30/2015 at 01:00p.m. in Room No.

NOTICE TO PARTIES/COUNSEL 07/23/2015 HEARING- MOTION TO SUPPRESS NOTICE SENT ON 07/23/2015 ROLAND A COLE , JUSTICE 07/30/2015 HEARING- MOTION TO SUPPRESS HELD ON 07/30/2015 THOMAS D WARREN , JUSTICE Attorney: CHRISTOPHER LEDWICK DA: STUDENT ATTORNEY Defendant Not Present in Court STATE'S WITNESSES CALLED AND SWORN. INTERN SHEA PRESENT FOR THE STATE. EXHIBIT A MARKED BY STATE, O,A, NO OBJECTION. STATE RESTS. DEFENSE ARGUMENTS MADE. STATE ARGUMENTS MADE. MEMO'S TO BE FILED BY MONDAY. MOTION UNDER ADVISEMENT. ADA CANNON PRESENT. FTR 1 08/03/2015 MOTION- MOTION TO SUPPRESS UNDER ADVISEMENT ON 07/30/2015 THOMAS D WARREN , JUSTICE 08/06/2015 ORDER- COURT ORDER FILED ON 08/06/2015 THOMAS D WARREN , JUSTICE DEFENDANT'S MOTION TO SUPPRESS IS DENIED. 08/06/2015 MOTION- MOTION TO SUPPRESS DENIED ON 08/06/2015 THOMAS D WARREN , JUSTICE COPY TO PARTIES/COUNSEL

A TRUE COPY ATTEST: ------------------------ Clerk

CR-200 Page 2 of2 Printed on: 08/06/2015