State of Maine V. McAleney

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STATE OF MAINE CUMBERLAND, ss. UNIFIED CRIMINAL DOCKET No. CR-15-2251 STATE OF MAINE ORDER v. 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 CRIMINAL DOCKET CUMBERLAND, ss. Docket No CUMCD-CR-2015-02251 STATE OF MAINE VS LEE S MCALENEY 62 JIM SMALL RD CASCO ME 04015 DOB: 07/09/1963 Attorney: CHRISTOPHER LEDWICK THE LEDWICK LAW FIRM PO BOX 884 BRUNSWICK ME 04011 RETAINED 04/2112015 Charge(s) 1 QUI (ALCOHOL) Seq 12942 29-A 2411(1-A)(A) MARION Docket Events: DOCKET RECORD State's Attorney: CHRISTINE THIBEAULT 03/07/2015 NAPLES Class D CUM 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 LEES MCALENEY Party(s): 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 Page 1 of 2 Printed on: 08/06/2015 CR-200 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

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