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STATE v. LANE11/15/1994
Denise Lane appeals from an order of the Superior Court (Hancock County, Browne, A.R.J.) denying a motion for a new trial based on an alleged violation of her constitutional right to conduct her defense, ordering her to pay restitution in the amount of $500, and imposing a 10% surcharge on her fine. We agree that the trial court could find that Lane was not deprived of the opportunity to take a blood-alcohol test and affirm her conviction. The imposition of restitution is inappropriate and therefore, we vacate the entire sentence and remand for resentencing.
Officer Allan Brown of the Hancock County Sheriff's Department arrested Lane on the evening of September 13, 1989 for the operation of a motor vehicle while under the influence of intoxicating liquor. In response to Lane's request for a blood test to verify her blood-alcohol content, the arresting officer escorted Lane to Maine Coast Memorial Hospital to have the test administered. Once at the hospital, Lane refused to have her blood taken until she was permitted to use the bathroom. The arresting officer found Lane uncooperative and escorted her to the Hancock County jail.
Following her arraignment in the District Court, the case was removed to the Superior Court for a jury trial. The jury found her guilty of operating a motor vehicle while under the influence of alcohol. The court imposed a $400 fine, required Lane to pay restitution in the sum of $500 for "court/counsel fees," and imposed the 10% surcharge mandated by 4 M.R.S.A. § 1057 (1989). Lane's drivers' license was suspended for ninety days.
Lane's motion for a new trial and correction of the sentence were both denied. This appeal followed.
a. Opportunity to Submit to a Chemical Test
Lane argues that her right to conduct her defense was unconstitutionally deprived when she was not provided the opportunity to develop exculpatory evidence. The court found that Lane's right to due process was not denied because " he was taken to the hospital, and the person was to administer the test was present and available at that juncture, and she decided that she was going to the bathroom first." Considering Lane responsible for the consequences of her conduct, the court found on ruling on Lane's motion for a new trial that she had the opportunity to take a blood test. We find no clear error and affirm Lane's conviction.
We have consistently stated the right due process affords one who has been arrested for operating under the influence is not the right to have a test sample taken, but only to have a reasonable opportunity to attempt to gather the desired evidence. State v. Munsey, 152 Me. 198, 127 A.2d 79, 81-82 (1956); State v. Landry, 428 A.2d 1204 (Me. 1981) (when defendant refused to submit to a chemical test until he could contact friends, he was found to have voluntarily refused a reasonable opportunity to submit to a chemical test); State v. Copeland, 391 A.2d 836 (Me. 1978) (treating defendant's refusal to sign a release form as a refusal of the opportunity to submit to a blood test); State v. Roberge, 306 A.2d 13 (Me. 1973) (officer refused to permit defendant to choose his own physician for a chemical test when granting defendant's request would be uneconomical and inconvenient and defendant had the opportunity to be tested at a facility used by the police department). The question is whether, in light of the totality of the circumstances, the defendant's own conduct resulted in the failure to obtain a chemical test. See Munsey, 127 A.2d at 81-82.
The concept of due process "may mandate that a police officer shall not interfere with the reasonable opportunity, consistent with the demands of safe custody, of a defendant t
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