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State v. Wandell

Superior Court of Maine, Cumberland

August 24, 2017

STATE OF MAINE
v.
ROY WANDELL, Defendant

          Attorney: LEONARD SHARON ANDRUCKI & KING.

          State's Attorney: STEPHANIE ANDERSON.

          ORDER

          Thomas D. Warren Justice.

         Defendant 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.

         At the 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.

         The court finds as follows:

         Freeport 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 pickup.

         Officer 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.

         During 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.[1] 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 influence.[2]

         When 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.

         The 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 A.2d 179.

         The 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.

         Officer 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.[3]

         On the 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 ...


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