Attorney: LEONARD SHARON ANDRUCKI & KING.
State's Attorney: STEPHANIE ANDERSON.
D. Warren Justice.
Roy Wandell is charged with a second offense OUI alleged to
have occurred on March 22, 2017. He filed a motion to
suppress on which a hearing was held on August 15, 2017.
outset of the hearing counsel for Wandell clarified that the
motion to suppress was directed at whether there was
reasonable articulable suspicion for the stop of
Wandell's vehicle, whether there was reasonable
articulable suspicion to subject Wandell to field sobriety
tests, and whether there was probable cause for arrest. The
State bears the burden of proof by a preponderance of the
evidence on those issues.
court finds as follows:
police officer Rebecca Kavanaugh was on duty at approximately
8:30 pm on March 22, 2017 when she was informed by a
dispatcher that an off-duty trooper had observed a vehicle
which was operating "all over the roadway." Officer
Kavanaugh was also informed that the off-duty trooper had
pulled up beside the vehicle, after it stopped at the
Freeport McDonald's, and observed that the driver had
glossy eyes. The dispatcher provided Kavanaugh with the plate
number and a description of the vehicle, an older white F-150
Kavanaugh proceeded to a location where she could observe
vehicles exiting the McDonalds parking area onto Mallett
Drive. Once there, she saw the F-150 exit the parking area
without coming to a stop before it entered the roadway. The
F-150 then turned right on Maine Street, and Kavanaugh
followed it closely as it turned left on School Street and
then left on Bow Street. After approximately a mile, at the
approximate location where Bow Street becomes Flying Point
Road, she turned on her blue lights and stopped the F-150,
which was driven by defendant Wandell. When it came to a
stop, Wandell's vehicle was at the intersection of Flying
Point Road and Pettengill Road.
the time when she was following Wandell's vehicle,
Officer Kavanaugh saw it drift to the left over the yellow
centerline at least twice and drift to the right over the fog
line at least twice. Her observations, combined with the
information she had received that the vehicle had previously
been "all over the roadway" and that the
operator's eyes had been glossy, constituted the basis
for reasonable articulable suspicion on Officer
Kavanaugh's part that Wandell was operating under the
Officer Kavanaugh approached Wandell's vehicle and spoke
with him to ask for his driver's license and
registration, it appeared to her that he was having
difficulty focusing. He began looking for his license, said a
few words, went back to looking, and even grabbed for the
officer's flashlight to assist him. He thereafter
produced his license and registration and on inquiry, denied
that he had been drinking. However, Officer Kavanagh smelled
a mild odor of alcohol when she was speaking with Wandell.
She also observed that his eyes were glossy. Suspecting that
Wandell was impaired, Officer Kavanaugh then asked Wandell to
exit his vehicle in order to perform field sobriety tests.
State has met its burden of proof to demonstrate that Officer
Kavanaugh had an objectively reasonable articulable suspicion
to detain Wandell for field sobriety tests. This is based on
the same information that justified the stop of the vehicle,
plus Wandell's apparent lack of focus, his glossy eyes,
his attempt to grab the officer's flashlight while he was
looking for his driver's license and registration, and
the mild odor of alcohol that Officer Kavanaugh detected when
speaking with Wandell despite his denial of drinking. See
State v. Simons, 2017 ME 180 ¶¶ 12-13;
State v. Eastman, 1997 ME 39 ¶¶ 6-7, 691
video from Officer Kavanaugh's cruiser camera shows that
Wandell may have been very slightly off-balance when he
stepped out of his vehicle and that he then walked in a
gingerly manner back to the front of Officer Kavanaugh's
vehicle to perform an HGN test. Officer Kavanaugh asked
Wandell to sit on the front push bar of her cruiser for the
HGN test. She had to ask him twice to do so. She asked him if
he was on any medication, had any head injuries, or was
wearing contacts. He said no. Although instructed to follow
the stylus with his eyes not his head, Wandell initially
moved his head.
Kavanaugh observed all six possible clues of impairment on
the HGN test. She then had Wandell move over to Pettengill
Road to perform the walk-and-turn test because she believed
it had less of an incline than the location on Flying Point
Road where the stop had been made.
walk-and-turn test, Officer Kavanaugh observed at least five
clues - Wandell used his arms for balance, he did not
correctly walk heel to toe, he stepped off the imaginary
line, he stopped at one ...