ORDER ON DEFENDANT'S MOTION TO SUPRESS
Deborah P. Cashman Judge, Maine District Court
matter came before the court on November 16, 2017 for hearing
on Defendant's motion to suppress. Defendant was present
and represented by Attorney Robert Levine. The State was
represented by Assistant District Attorney William Berry. In
his motion to suppress, Defendant argues that his due process
rights were violated and therefore any evidence related to
his refusal to take a chemical test must be suppressed. At
the onset of the hearing, Defendant stipulated that he was
not challenging the basis for the stop or the probable cause
for an arrest, but rather was only challenging the
voluntariness of the test and/or refusal under a due process
court heard the testimony of Officer Mary Pearson of the
Scarborough Police Department and Defendant, and reviewed
Defendant's Motion Exhibit 1, a copy of the intoxilyzer
video. At the close of the hearing the court took the matter
under advisement. Having considered all of the evidence
presented and the argument of counsel, the court makes the
following findings facts and conclusions of law upon which
the Order set forth below is based:
Pearson is employed as a police officer for the Town of
Scarborough Police Department. She has been so employed for
approximately thirty (30) years. She graduated from the Maine
Criminal Justice Academy in Waterville. In addition to her
training at the Maine Criminal Justice Academy, she has also
received training specializing in the detection and
apprehension of impaired drivers, including certification in
standardized field sobriety tests and intoxilyzer
administration. She went on to become trained, and served as
an instructor for both standardized field sobriety testing
and intoxilyzer administration. She currently holds the
position of patrol sergeant.
April 30, 2017, Sgt. Pearson was on routine patrol in a
marked cruiser and in full uniform. At approximately 8:30
p.m. Sgt. Pearson was traveling south bound on Route One (1)
in the Dunston area, which is a four (4) lane highway. She
observed a vehicle, traveling on the wrong side of the road,
at an estimated speed of approximately 50 mph in the posted
35 mph zone. Based on her observations, Sgt. Pearson
initiated a stop of the vehicle.
Pearson identified the Defendant as the driver of the
vehicle. Sgt. Pearson recognized the Defendant from a prior
contact. During the initial contact on April 30, 2017,
Defendant was very friendly, cordial, and cooperative,
answering all of Sgt. Pearson's questions. Sgt. Pearson
noted that Defendant had food on his chin as well as detected
the odor of intoxicants and saw alcohol containers in the
vehicle. Based on all of the circumstances available to Sgt.
Pearson at the time, she asked Defendant to exit the vehicle
and perform field sobriety tests. Sgt. Pearson asked
Defendant if he was on any prescribed medication, whereupon
Defendant informed her he had "PTSD"
(post-traumatic stress disorder). Sgt. Pearson followed up
again inquiring about whether he was taking any prescribed
medication, to which Defendant responded, he was "all
good." He did not elaborate further on any medical
conditions or prescribed medication that he was taking.
During this interaction, Defendant continued to be extremely
cooperative and cordial, praising the police department.
the administration of field sobriety testing, Sgt. Pearson
described that Defendant was easy to get off track, but with
redirection, he was able to focus on the tasks, and continued
to be cooperative with the requests. Based on Sgt.
Pearson's observations, she determined that she had
probable cause to arrest Defendant for operating under the
influence. When Sgt. Pearson placed Defendant under arrest
and handcuffed him, Defendant's demeanor
"instantaneously" changed, and he became verbally
abusive, berating the officer. Defendant was transported to
the Scarborough Police Department by Officer Jones, whose
vehicle was more suited for the transport.
Pearson and Officer Jones both arrived at the police
department at the same time. Sgt. Pearson noted that
Defendant appeared to be passed out in the rear of Officer
Jones vehicle. Defendant was brought into the intoxilyzer
room of the police department. This room was equipped with a
video recording system. A copy of the approximately 29-minute
video from the intoxilyzer room was admitted and has been
reviewed the court in full.
first entering the room, Defendant is seated in a chair near
the instrument. Sgt. Pearson asked Defendant if he wore any
dentures, and asked him to inspect his mouth, which Defendant
allowed without incident. Sgt. Pearson informed Defendant
that they needed to wait fifteen minutes, and then he could
perform the test. Defendant stated, "Go ahead,
fine." Sgt. Pearson then began asking Defendant some
basic identification questions, which Defendant initially
answered. However, after a short period, Defendant became
argumentative and non-responsive to the questions. During
this timeframe, Sgt. Pearson's demeanor is direct, calm
and professional. Defendant, after initially refusing to
answer questions, continually stated, "just kill
me" and "I want to die." Sgt. Pearson calmly
attempted to de-escalate the situation. Defendant became
increasingly hostile and belligerent during the
fifteen-minute wait period. At one point Defendant indicated
that he needed to scratch his nose, but could not due to the
handcuffs. Sgt. Pearson accommodated his need, and assisted
him in scratching his nose. Throughout the fifteen-minute
wait period, Defendant oscillated between periods of loud and
hostile outbursts and periods where he sat quietly.
he repeatedly talked over the officer, using profanity, and
making hostile statements, Defendant remained seated, and
responsive to the statements that were made by the sergeant.
As Sgt. Pearson began to prepare the instrument for the test,
Defendant again became agitated, but then would settled down.
When she finally attempted to administer the test, Defendant
again became agitated. At one point, the second officer in
the room, who had remained silent until this point,
interjected which caused a belligerent verbal response from
Pearson attempted to administer the intoxilyzer, but the
sample was insufficient to engage the instrument or produce a
result on the test. Although Sgt. Pearson attempted to
explain to Defendant how to blow into the intoxilyzer to
produce a sufficient sample, Defendant continued to be
argumentative and hostile. Sgt. Pearson remained professional
and calm throughout. When asked, if he would comply if given
another chance, Defendant responded, "I'm not doing
nothing." Defendant was aware during this time that he
was being video recorded, referencing the camera in the room.
point Sgt. Pearson read the implied consent from a printed
form. As she read, Defendant became more animated, and vocal.
At some point the second officer told him to be quiet, which
caused further response. Sgt. Pearson, attempted to calm
Defendant, and then continued reading the implied consent
warning. She then informed Defendant that she had just read
the "refusal form, " and inquired if he would take
the test, and again Defendant declined, by saying he was
"not taking nothing." There is no evidence in the
record that the Defendant signed the warning form after it
was read to him. Sgt. Pearson then put out her hand to assist
Defendant from the chair he was seated in. Defendant stood
and said, "good" as he walked with Sgt. Pearson out
of the room.
Pearson acknowledged that Defendant's demeanor changed
dramatically when she informed him that she was arresting
him. She further suggested it was "like a light switch,
" and that his behavior at that point was very different
from any prior interactions she had had with Defendant.
However, Sgt. Pearson also acknowledged that she had not been
around in Defendant's presence when he had consumed
alcohol or when intoxicated.
testified that he suffers from post-traumatic stress disorder
and is disabled as a result. He also testified that whenever
anyone "places hands" on him, he blacks out. He
testified that on April 30, 2017, while at the police
department he did not remember one thing about being at the
police department. ...