ORDER ON MOTION TO SUPPRESS
William R. Stokes Justice, Superior Court.
matter before the court is the Defendant's Motion to
Suppress evidence and statements obtained from him by law
enforcement on March 20, 2016 in Augusta. Specifically, the
Defendant seeks to suppress (1) statements he made after he
had invoked his right to counsel following Miranda
warnings; (2) the results/opinions, including any
observations, of the drug impairment assessment performed on
him by a certified drug recognition expert, and; (3) the
results of any chemical test on a urine sample he provided to
evidentiary hearing was held on the motion on February 17,
2017 at which Officer Anthony Drouin of the Augusta Police
Department testified. State's Exhibit 1, a DVD of the
time Defendant and Officer Drouin were in the booking room
after a breath test had been administered, was admitted
without objection. Defendant's Exhibit 1, being Officer
Drouin's 5-page Drug Influence Evaluation report, was
also admitted without objection.
parties submitted memoranda of law, with the last one being
received by the court on March 31, 2017. On April 21, 2017
the court issued a Procedural Order requesting the parties to
provide their positions as to whether additional testimony
and/or briefing was needed in light of the information in
Defendant's Exhibit 1 that Officer Drouin had read the
so-called "Implied Consent Form" to the Defendant.
Neither party addressed the potential relevance of this
during Officer Drouin's testimony, or in their
post-hearing memoranda, on the question of the
Defendant's consent to providing a urine sample. The
Defendant responded to the court's Procedural Order and
argued that the information in the report referring to the
reading of the "Implied Consent Form" should not be
considered by the court or, alternatively, that the reading
of the "Implied Consent Form" did not constitute a
valid and voluntary consent for the taking of the
Defendant's urine sample. The State did not respond in
writing to the court's Procedural Order.
upon the evidence presented at the hearing, and after
consideration of the parties' written arguments, the
court makes the following factual findings.
March 20, 2016, as the sun was setting, Officer Drouin
responded to the scene of a motor vehicle accident on Eastern
Avenue in Augusta. The scene was "chaotic"
according to Officer Drouin because it was rush hour. Upon
arriving at the scene Drouin learned that a pick-up truck had
gone off the road and come to rest in the woods. The operator
of the vehicle was the Defendant, Edson Wilson.
paramedics, who had examined the Defendant, told Officer
Drouin that he appeared under the influence and Drouin
himself observed that the Defendant's pupils were
"restricted, " which he knew to be an indicator of
drug use. The officer decided to have the Defendant perform
some field sobriety tests. While at the roadside scene, and
before he was taken into custody, the Defendant made a
statement to the effect that he had been to the methadone
result of the Defendant's performance on the field
sobriety tests, the officer saw signs of impairment and
decided to take him to the police department to administer a
breath test. The Defendant was handcuffed and placed in the
rear of the cruiser. During the ride, the Defendant mentioned
that the feelings of methadone came in "waves" and
that he usually pulls over when that happens. He also said
that he had used pot. Officer Drouin asked no follow-up
questions during the ride because he had not yet read the
Defendant any Miranda warnings.
to Officer Drouin's report (Defendant's Exhibit 1),
upon arrival at the police department he read the
"Implied Consent Form" to the Defendant, who then
performed a breath test. The breath test produced a result of
.00 grams of alcohol per 210 liters of breath.
(Defendant's Exhibit I). Officer Drouin was of
the opinion that the Defendant's level of impairment did
not match the test result. Accordingly, he decided that he
needed a urine sample from the Defendant. He also decided to
conduct a drug influence evaluation since he is a certified
drug recognition expert. See 29-A M.R.S. §2526.
It appears that the officer and the Defendant moved to a
different room, which is when the video on the DVD begins.
obtaining a urine sample, Officer Drouin and the Defendant
had the following initial exchange:
Officer: So are you going to have to pee?
Officer: Are you going to have to pee soon?
Wilson: I'll try. If I have to.
Officer: Do you want to try right now?
Wilson: I am going to wait. I don't have to pee right
now. We'll wait.
Drouin gave the Defendant a bottle of water, allowed him to
make a call to his mother, and then read him the
Miranda warnings. At the end of the recitation of
rights, the Defendant clearly invoked his right to counsel.
Officer Drouin had the Defendant sign the Miranda
card and then stated: "Alright, so I do have to ask you
a couple of questions, but it is just medical stuff .... make
sure that you are not having a medical issue." It is
apparent from the context of the conversation between the
officer and the Defendant that the officer was about to begin
his drug influence evaluation. Around this time Officer
Drouin remarked: "So we are gonna be stuck here until
you pee, so . . . drink as much water as you can."
Drouin asked the Defendant a series of questions pertaining
to his physical health, such as whether he was diabetic or
epileptic, whether he was sick or injured, whether he took
insulin, whether he had any physical deficits and whether he
was under the care of a physician or dentist. The Defendant
responded in the negative to all of the questions, except
that he told the officer that "I go to the methadone
clinic every morning" in Waterville.
Drouin took the Defendant's pulse (multiple times),
temperature, blood pressure and muscle tone, and performed
the horizontal gaze nystagmus examination. He had the
Defendant perform several field sobriety tests including the
"one-leg stand, " the "walk and turn, "
the "finger to nose" and the "Romberg Modified
Balance" examination that required the Defendant to
estimate the passage of 30 seconds in his head, apparently to
assess whether his "internal clock" was either fast
or slow. Officer Drouin formed the ...