ORDER ON DEFENDANTS MOTION TO SUPPRESS
court held a hearing on February 22, 2017 on Defendant's
Motion to Suppress. Assistant District Attorney Jonathan
Liberman represented the State. Adam Sherman, Esq.
represented Defendant. Defendant moves to suppress his
statements made prior to being Mirandized, and also
challenges whether there was probable cause for the arrest.
on the testimony presented at the hearing and review of the
booking room video, the court makes the following findings of
fact. On October 29, 2016, Sgt. Ramsay was called to Topsham
Fair Mall Road in reference to a hit and run. Witnesses
informed Sgt. Ramsay that a vehicle had sideswiped another
vehicle. The driver of the vehicle that was hit informed Sgt.
Ramsay that he had an interaction with the driver who hit him
(hereafter Defendant) and the Defendant told the victim to
"calm down" and then drove off. There was a third
party eye-witness to the accident who followed the Defendant
to a nearby gas station. The eye witness told the Defendant
he was in an accident and that he should return to the scene.
The eye witness gave Sgt. Ramsay the license plate number of
the vehicle that had left. While on scene, Sgt. Ramsay was
informed that Defendant had arrived at the police station to
report an accident.
Ramsay returned to the police station and observed
Defendant's vehicle parked in the "cruiser
only" section of the parking lot, and observed that the
vehicle had front-end damage. Defendant, the registered owner
of the vehicle, was in the lobby, and told Sgt. Ramsay that
someone had hit him. Sgt. Ramsay testified that Defendant
seemed "off, " and had red, watery eyes, slow
movement, and slurred speech. However, at that time, Sgt.
Ramsay did not observe an odor of alcohol. Defendant denied
the interaction with the other driver at the gas station and
going out to Defendant's vehicle so that Defendant could
retrieve paperwork, Sgt. Ramsay took Defendant into the
booking room. Sgt. Ramsay went over the eye-witness statement
with Defendant, which contradicted Defendant's statement
denying the interaction at the gas station. Defendant stated
that he had stopped at the gas station but didn't see
anyone there, Sgt. Ramsay then asked if Defendant would take
a portable breath test and Defendant agreed. While taking the
test, Sgt. Ramsay observed an odor of alcohol, and the
portable breath test indicated the presence of alcohol-but
not a level of alcohol. Sgt. Ramsay stated, "so you have
been drinking" to which Defendant replied he had that
afternoon. When asked if he had had any alcohol between the
gas station and the police station, Defendant said no.
Ramsay then administered field sobriety tests: Horizontal and
Vertical Gaze Nystagmus, "walk and turn, " and the
one-leg stand, which he is certified to administer. In
administration of these tests, Sgt. Ramsay did not strictly
comply with all proscribed procedures. For example, video
from the booking room shows that during the Nystagmus test,
Sgt. Ramsay did not hold Defendant's gaze for the
required minimum of four seconds, and did not keep the light
at the required 45 degree angle. Sgt. Ramsay also testified
that his report was not accurate in some respects, including
that Defendant only missed one step during the walk and turn,
not multiple. Nevertheless, the court credits Sgt.
Ramsay's observations that during the Nystagmus test,
Sgt. Ramsay observed four of the six clues, and that
Defendant failed both the walk and turn and the one-leg
following the completion of the field sobriety tests, Sgt.
Ramsay asked Defendant whether he was driving at the time of
the crash. Defendant responded "yeah." Sgt. Ramsay
asked Defendant if he went to the gas station and then the
police station, (Defendant responded "yes") and
then whether, during the time from the crash to the time he
came to the police station, he had had anything to drink.
Defendant responded "no." Sgt. Ramsay informed
Defendant that Defendant was intoxicated, that he was going
to place Defendant under arrest, and that Defendant would
need to take a breathalyzer test.
Cause to Arrest
probable cause standard to arrest for OUI is low. See
State v. Webster, 2000 ME 115, ¶ 7, 754 A.2d 976,
"For there to be probable cause to arrest someone for
operating under the influence ... an officer must have
probable cause to believe that the person's senses are
affected to the slightest degree, or to any extent, by the
alcohol that person has had to drink. A reasonable stispicion
to support probable cause can exist independent of any
evidence of actual impaired driving." Id. Under
a probable cause analysis, the standard is whether an
ordinary prudent and cautious officer would have probable
cause. State v. Bolduc, 1998 ME 255, ¶ 7, 722
A.2d 44, As a preliminary matter, Defendant argues that the
court should not credit the results of the field sobriety
tests because Sgt. Ramsay did not strictly comply with the
proscribed procedures. However, "subject to the
court's gatekeeping role established in Maine Rules of
Evidence 401 to 403 and 601(b), any deficiencies in an
officer's training or expertise, or failure to strictly
comply with prescribed procedtires in making observations or
conducting tests, go to the weight, but not the
admissibility, of the officer's testimony regarding
observations of impairment." State v. Atkins,
2015 ME 162, ¶ 2, 129 A.3d 952. Accordingly, the court
will give the results consideration in totality with Sgt.
Ramsay's other observations.
Ramsay knew the following: he had been informed that
Defendant had side-swiped another vehicle and left the scene.
When Sgt. Ramsey returned to the police station, he observed
Defendant's vehicle parked in an area where he should not
have parked and the vehicle had front-end damage. Upon
meeting Defendant in the lobby of the police station, Sgt.
Ramsay observed Defendant's eyes were red and watery, he
had slow movement, and slurred speech. Upon administration of
the portable breath test, Sgt. Ramsay observed the odor of
alcohol, and the result of the portable breath test was
positive for the presence of alcohol. Finally, during the
administration of the field sobriety tests, Sgt. Ramsay noted
signs of intoxication that would affect Defendant's
senses and his ability to operate a vehicle. Given all of the
facts, a prudent and cautious officer would conclude that
Defendant had driven under the influence at the time of the
the court finds that there was sufficient probable cause to
arrest Defendant on suspicion of OUI.
agreement of the State, all of Defendant's statements
made after formal arrest and prior to Miranda are
excluded. However, Defendant also seeks to suppress