ELLSWORTH — A former Bar Harbor police chief charged with operating while under the influence is asking the court to suppress the fact that he refused a test to determine his blood alcohol level at the time of his arrest.
Wayne Foote, attorney for Nathan Young of Bar Harbor, filed the motion to suppress Young’s refusal on March 15 in Hancock County Unified Criminal Court.
Young, 54, was arrested Dec. 18 by Ellsworth police and charged with operating while under the influence (OUI) after the department received a report of an erratic driver coming into the city on Route 3 from Trenton.
In Maine, prosecutors can use a refusal of the mandatory breathalyzer or blood test after an OUI arrest as evidence of guilt in court. Foote argues that federal court decisions are at odds with Maine law.
“It’s a little bit of a shaky area,” said Hancock County District Attorney Matt Foster. If Foote is successful in his argument, it could set a precedent, Foster said.
In his motion, Foote wrote that “police determined that a breath test would be unreasonable in the circumstances and asked Mr. Young to consent to a blood test.” Young initially consented but, after being taken to Maine Coast Memorial Hospital for the blood draw, withdrew that consent, Foster said.
Foster said Assistant District Attorney Heather Staples, who is prosecuting Young in the OUI case, told him that police asked for the blood test after numerous failed attempts to get an accurate measure of Young’s alleged intoxication using a breath test. Young allegedly would burp before each attempt, an action that could skew the results and require a 15-minute wait for the breathalyzer to reset for another try, he said.
“He kept burping and making burping-type motions,” Foster said.
Foster said the district attorneys office would not be filing a response to Foote’s motion but would argue against it at a court hearing. The matter was scheduled to be heard last week but was continued. A court clerk said she expects the hearing to be held in July.
Foote argues that the legal grounds for the motion are that Young, by exercising his constitutional rights regarding self-incrimination and illegal search and seizure, is being penalized by state law involving the consequences of his failure to consent to testing.
Among the cases cited by Foote to support his argument is a 2013 U.S. Supreme Court decision, Missouri v. McNeely. In that case, the court, in a 5-4 decision, ruled that police, in general, must get a warrant before subjecting a suspect in a drunk-driving case to a blood test. The natural dissipation of alcohol in the bloodstream does not happen so quickly to establish an urgent need to justify a blood test without a warrant in most cases, the court found.
Young also faces a drunken driving charge in Bangor. A week after his arrest in Ellsworth, Bangor police arrested him on charges of OUI and violating his bail conditions.
Young was fired as police chief in Bar Harbor in January 2014 after an investigator hired by the town concluded Young was intoxicated and acted inappropriately toward his officers who were responding to a report of a person slumped over the steering wheel of a pickup truck in the parking lot of the closed Town Hill Market. Young was the sole occupant of that truck.
After town councilors turned down Young’s appeal of his dismissal, he filed a lawsuit against the town. A trial to determine the outcome of that case is expected sometime this summer.