Opinion
DOCKET NO. CR-13-1039
07-29-2015
STATE OF MAINE v. WALTER RENFRO, defendant
STATE OF MAINE
KENNEBEC, ss. UNIFIED CRIMINAL DOCKET
AUGUSTA
ORDER ON DEFENDANT'S PENDING MOTIONS
This matter was heard by the undersigned on July 2nd, 2015 with respect to the defendant's Motion In Limine and Motion to Suppress. After hearing, the Court makes the following Findings of Fact and Conclusions of Law upon which the Order set forth below is based:
1. On Friday night, November 1", 2013 at approximately 10:45 p.m. the defendant was stopped by Waterville Police Officers McDonald and Reed as the defendant was travelling north on Water Street in Waterville, Maine. The officers stopped the defendant because they believed the defendant had "squealed" his tires in violation of 29-A M.R.S. § 2079.
2. Once stopped the defendant was approached by the police officers who asked the defendant for his license, registration, and insurance card. The defendant appeared lethargic to the officers. The defendant initially was silent, and did not produce his license until Officer McDonald pointed it out to defendant. When the defendant did speak, his speech was slurred. There was an odor of alcohol coming from inside the vehicle. The defendant had bloodshot eyes and had a cut on the top of his nose with dried blood on his face, see State's exhibit 2.
3. When asked about his appearance the defendant explained he had been involved in a fight at a local bar earlier in the evening. When asked what defendant had imbibed the defendant admitted to having consumed 2 drinks. When the defendant's license was "run" it came back as being conditional, including the condition that defendant not consume alcohol and drive.
4. When asked what time it was the defendant replied "1:30 a.m." when in reality it was 10:50 p.m. When asked to get out of his vehicle the defendant's balance was poor. Officer McDonald administered the "HGN" test and observed six "cues" out of a possible six cues for impairment. The defendant contended he didn't know the alphabet and so could not recite it. The defendant initially agreed to perform the "walk and turn" test, but then contended he could not perform the test. On a scale of 1 to 10 with "1" being sober and "10" being extremely intoxicated the defendant contended he was a "1".
5. Based upon the above, Officer McDonald believed the defendant was impaired and accordingly arrested him for Operating Under the Influence of Intoxicants in violation of 29-A M.R.S. § 2411 as well as for Operating Beyond License Condition or Restriction in violation of 29-A M.R.S. § 1251.
6. At the police station the defendant was checked to see if he had anything in his mouth. The officer observed nothing in defendant's mouth, including the presence of any blood. The officer "watched" the defendant for 15 minutes before the officer administered the intoxilyzer test, with the result being a .17, or approximately twice the legal limit. The video of the events at the police station support the officer's contention that the defendant was observed for the required time before the test was administered, although admittedly the defendant was not under constant, direct observation for the entire time period leading up to the administration of the test.
There was testimony that the purpose of the observation period is to insure that a defendant does not engage in any activity that could compromise the validity of the test, such as burping, belching, drinking, smoking, eating, etc.
7. Both the State and the defense presented seasoned experts who predictably disagreed with the validity of the test result based upon what they observed in the video.
8. At hearing the defendant pressed the contentions that the defendant's arrest was without probable cause and that the appropriate pre-test procedures for use of the intoxilyzer were "grossly deviated from" such that the test result should be suppressed.
Arguments that the defendant's statements were involuntary and that custodial interrogation occurred without Miranda warnings being first given were not pressed.
9. In order to support a brief investigatory stop of a motor vehicle, such as the stop in this case, the officer had to have an objectively reasonable, articulable suspicion that either criminal conduct, a civil violation, or a threat to public safety has occurred, is occurring, or is about to occur. Moreover, the suspicion that any of these circumstances exist must be objectively reasonable in the totality of the circumstances. State v. Sylvain, 2003 ME 5. At a hearing on a motion to suppress evidence obtained in the course of a traffic stop, the State bears the burden of demonstrating that the officer's actions were objectively reasonable under the circumstances. State v. Brown, 675 A.2d 504 (Me. 1996). A "reasonable suspicion" is not the same as proof by a preponderance of the evidence or even probable cause to believe that impairment exists. State v. Webster, 2000 ME 115.
10. In this case the officers had reason to believe that the defendant was committing a traffic violation by "squealing his tires." Thus, the Court finds there was no problem with the officers stopping the defendant, see State v. Bolduc, 1998 ME 255; State v. Taylor, 1997 ME 81. Once stopped, the officer observed the defendant acting lethargic, exhibiting difficulty producing his license, having slurred speech, bloodshot eyes, and having an odor of alcohol coming from the vehicle in which defendant was the only occupant. Collectively these observations more than justified the officer asking the defendant to exit the vehicle.
11. Once outside the vehicle, the defendant's balance was poor, he exhibited six cues on the HGN Test for impairment, and declined to perform the walk and turn test after initially agreeing to perform the test. Taking into account the totality of the observations and circumstances described above, the officer had probable cause to believe the defendant was operating under the influence of intoxicants, and thus arrest the defendant for same. Probable cause to arrest for purposes of requiring a blood-alcohol test exists when "facts and circumstances of which the arresting officer has reasonably trustworthy information would warrant an ordinarily prudent and cautious police officer to believe the subject did commit or was committing a crime." State v. Boylan, 665 A.2d 1016, 1019 (Me, 1995). A person is guilty of operating under the influence if his mental or physical faculties are impaired, however slightly, or to any extent. Thus, probable cause to believe a defendant was operating under the influence exists if there is reason to believe that the defendant's mental or physical faculties are impaired by the consumption of alcohol. State v. Bradley, 658 A.2d 236 (Me. 1995).
It should also be recalled that defendant had a conditional license and was apparently violating the conditions/restrictions on his license. --------
12. Clearly, the officer had probable cause to arrest the defendant for OUI in light of the facts found above and the Law Court's holdings in the cases noted above.
13. With respect to the admissibility of the defendant's intoxilyzer test, the Court determines that the requisite foundational showing of reliability was made by the State, and thus the accuracy and reliability of the test result are questions for the factfinder, State v. Pineo, 2002 ME 93. Although there was a dispute between the two experts as to the reliability of the test result, the undersigned can rely solely on the testimony of the State's chemist that the result was reliable and is free to reject the contrary testimony of the defendant's expert. Id. This Court finds that Mr. Demers' criticisms go to the weight, not the admissibility, of the evidence, as was the case in State v. Pineo.
14. Accordingly, the Motion to Suppress is denied, and the Motion In Limine is denied as well, meaning the test results are admissible, with the factfinder to conclude what weight to give the evidence.
Date: 7/29/2015
BY/s/ _________
Robert E. Mullen, SCT Justice