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State v. Cormier

Superior Court of Maine, Cumberland

December 5, 2016



          Joyce A. Wheeler, Judge

         Josette Cormier ("Cormier") pled not guilty to the charge of criminal operating under the influence with a blood alcohol level of. 15 grams or more, Class D, in violation of 29-A M.R.S. § 2411(1~A)(A). Cormier filed a motion to suppress, raising two issues derived from the stop of her motor vehicle and the administration of a blood alcohol test by Sergeant Jeffrey Viola and Officer Nicholas Gower ("Viola" and "Gower", respectively) of the Portland Police Department, Cormier contends first that there was not probable cause to arrest at the point Viola stated that if she didn't take the field sobriety tests, he could arrest her, and second that during the. administration of the intoxilizer test, Gower made erroneous statements that deprived Cormier of her due process rights.

         Cormier relies of State v. Stade, 683 A.2d 164 (Me. 1996), and State v. Murphy, 2006 Me. Super LEXIS 38, in making her arguments. The State reponds that State v. Bavouset, 2001 ME 141, and State v. Broom, 736 A.2d 251 (1999), are on point with the facts of this case and counter defendant's arguments.


         The court makes the following findings of fact in this case: On March 31, 2016, Sgt. Viola responded to a radio call that an anonymous caller said he observed an individual consume alcohol and leave a bowling alley. The caller reported that he was following her vehicle and gave the direction of the vehicle and the license plate number of that vehicle. Sgt. Viola located the vehicle, and observed the vehicle swerve over the line, the two left tires completed crossing the line. Viola stopped the vehicle. He smelled intoxicants and asked the driver to remove the cough drop she had in her mouth. Viola explained to the driver that a 911 call came in about her drinking and driving. The driver admitted she had been at Spare Time, the bowling alley, and that she drank "whiskey ginger."

         Viola smelled alcohol on her breath. Viola asked her to step out of the car so he could administer the field sobriety tests to which-she responded, did she have to take them? Viola stated, these tests were designed to determine whether she was under the influence and they could help her. Viola further stated if she did not want to take the tests, he was willing to go on what he had for probable cause to arrest her. The driver got out of the car and took the field sobriety tests; thereafter, Viola placed her under arrest for operating a motor vehicle while under the influence, and asked Officer Gower to transport her to the Portland Police Department to administer the breath intoxilizer.

         Gower tried to administer the intoxilizer at the Portland Police Department but after thirty minutes, he determined it was not working and transported Gower to the jail. The defendant submitted a video of the administration of the intoxilizer test administered at the Portland Police Department. (Def.'s Ex. 1) The defendant challenges what the officer said to her during the administration of the intoxilizer test as violative of her due process rights.

         The video discloses that Gower read the implied consent form and had small talk with Ms. Cormier, who was very cooperative, had many questions, but appeared to be upset, wiping tears from her eyes from time to time, Gower explained that the intoxilizer measures breath alcohol. Ms. Cormier was worried and afraid of losing her license. She asked should she have a lawyer, did she need one, Gower told her he would explain to her the consequences. It is worth repeating their conversation verbatim: [1]

Defendant: What if I refuse to take the Breathalyzer? What happens? Officer: I can explain to you the consequences, but I can't give you counsel on what you should or shouldn't do. I'll tell you in one second. I've just got to punch some information and then I'll read you the whole refusal sheet so you know exactly what your options are, OK? I can tell you that if you do a refusal, which is if you don't blow, your license is automatically suspended for up to two years and you will go to jail if-you're found guilty.
D: And if I blow and I'm found to be over the 0.08, what?
O: There'll be a much lesser license suspension. And the DA will probably be able to work with you.
O: I'll read you this form. This is what we call the green form or the refusal form, OK? This is what would happen if you refuse to blow. By operating or intending to operate a motor vehicle in this state you have a duty to submit to and complete chemical tests, which this is, to determine your alcohol level and drug concentration. I will give you a breath test, unless I decide it is unreasonable, in which case another chemical test will be given. If you are requested to take a blood test-you're not being asked to do that-you may ask that a physician perform the test if a physician is reasonably available. If you fail to comply with your duty to submit to and complete a chemical test, your driver's license or permit, or right to apply for a license, will be suspended for a period of up to six years. Your failure to submit to a chemical test is admissible against you at any trial for operating while under the influence of intoxicating liquor or drugs. If you are convicted, which means found guilty of operating while under the influence of intoxicating liquor or drugs, your failure to submit to this chemical test will be considered an aggravating factor at sentencing, which in addition to other penalties, will subject you to a mandatory minimum period of incarceration. If you are 21 years of age or older, which you're not, in addition, excuse me ...
D: Yeah, I ...

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