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Posted by Michael Turndorf | Jan 23, 2018 | 0 Comments

United States District Court Judge D. Brock Hornby suppressed the results of blood tests taken from a commercial fishing boat captain after his boat sank and two crew members were lost.  The captain is charged with two counts of Seaman's Manslaughter.  The government alleges the captain was under the influence of opiates and marijuana at the time of the sinking.  The government alleges the captain was negligent, and that his negligence caused the death of two crew members.  The captain was rescued from a life raft and transported to a hospital to be treated for injuries and hypothermia.  An investigator from the Coast Guard went to the hospital and caused a sample of blood to be drawn from the captain.  That sample was later sent to a lab to be tested for drugs.  Later, the captain was questioned about the results of the testing.  The court also suppressed any statements made by the captain in response to questions about the results of drug testing.

Generally, the Coast Guard can require a boat captain to provide a sample of blood and submit to alcohol testing under two circumstances:

1)  If the Coast Guard has reasonable cause to believe the captain was under the influence at the time of the marine incident; and, 

2)  When there is a serious marine incident, even if the Coast Guard does not have reason to believe the person was under the influence.  The loss of two crew members clearly qualifies as a "serious marine incident."  Under these circumstances the regulations provide for mandatory testing.  However, the regulations state that no person may be "compelled" to provide a sample.  Put another way, the Coast Guard either needs consent or a valid search warrant to collect samples for testing.

In this case the Coast Guard did not have a search warrant.  The government alleged that the captain consented to giving a sample of his blood.

Judge Hornby found the captain did not voluntarily consent.  Instead, his consent was a mere submission to the authority of officers who told him it was mandatory for him to submit to a blood draw.  The court said as follows:

I find as a “fact based on the totality of the circumstances” (Vazquez's terms) that the defendant's consent was effectively coerced and therefore not valid. Put another way, “[c]onsent pried loose by . . . a claim of authority

is merely acquiescence,” Vazquez, 724 F.3d at 23. The government must show “more than mere acquiescence in the face of an unfounded claim of present lawful authority.” United States v. Brake, 666 F.3d 800, 806 (1st Cir. 2011).

The exclusion of this evidence complicates the government's case.  US v. Hutchinson. US District Court, Portland, Maine

About the Author

Michael Turndorf

Attorney Michael “Mike” Turndorf is known for his meticulous preparation and command of the facts. He has been a trial attorney for almost three decades, and is driven to get results.


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