ORDER ON DEFENDANT'S MOTION TO SUPPRESS
seeks to suppress evidence obtained by law enforcement as a
result of the stop and detention of defendant. He argues the
police officer lacked probable cause to arrest him. For the
following reasons, the motion is denied.
Burnes has been a police officer for Windham, Maine for three
and one-half years. The parties stipulated that he is trained
and qualified to conduct an OUI investigation, to administer
standard field sobriety tests, and to operate radar.
Burnes was on routine patrol duty on November 5, 2018. At
12:15 a.m., he observed an Audi station wagon on Route 100.
As Officer Burnes followed the vehicle, it exceeded the speed
limit, traveling 56 m.p.h. in a 40 m.p.h. zone and later in a
50 m.p.h. zone. Officer Burnes activated his blue lights but
the vehicle did not stop. He then activated his siren and the
vehicle traveled slowly to the side of the road with the
directional signal in use and stopped in a safe location.
Burnes approached the vehicle. When he asked the operator to
roll the window down, the operator rolled the window down
only a few inches. Officer Burnes found suspicious the facts
that the operator appeared to want to obstruct communication
with Officer Burnes and that the vehicle's fan was set on
the highest setting. The temperature outside was 30 degrees.
Burnes noted the odor of intoxicants from the air coming from
the vehicle. Officer Burnes did not recall whether his nose
broke the plane of the vehicle but that was possible. The
video shows that Officer Burnes did break the plane of the
window. (State's Ex. 1.) He smelled inside the vehicle as
best he could. Officer Burnes asked for the operator's
license, registration, and insurance. The operator opened his
wallet for his I.D. and reached into the glove box for his
registration and insurance. He displayed poor finger
dexterity in his effort to remove the documents. Defendant,
identified from his I.D., was the only occupant of the
vehicle. At the time of the stop, defendant was 79.5 years
exhibited slow, slurred speech and red, glossy, bloodshot
eyes. Upon inquiry, defendant admitted consuming two twelve
ounce beers thirty to sixty minutes previously. Officer
Burnes learned that defendant had an OUI conviction and had
refused field sobriety tests. Officer Burnes believed the
same scenario was about to take place and called for a second
officer, who arrived.
Burnes could not recall the conversation regarding defendant
getting out of his vehicle, which lasted for a couple of
minutes. Officer Burnes did not believe he told defendant he
would be arrested if he did not get out. Defendant got out of
his vehicle after a few minutes. Defendant swayed back and
forth initially but later appeared more steady on his feet.
the NHTSA guidelines provide that field sobriety tests should
not be administered to any person over the age of 65, Officer
Burnes requested that defendant perform field sobriety tests.
Defendant responded that he had had knee and hip replacements
and refused to perform the tests. Officer Burnes tried to
convince defendant to perform the tests. Officer Burnes
offered the alphabet, counting, and HGN tests. Defendant
admitted he knew the alphabet and how to count but declined
the tests. Defendant complained multiple times about his knee
and hip replacements. Officer Burnes explained that the tests
he offered did not involve defendant's knee, hip, or
walking. Defendant refused to complete any field sobriety
tests but offered to submit to a blood test.
Burnes continued to note the odor of intoxicants after
defendant got out of the vehicle. Defendant did not comply
with Officer Burnes's requests and was not cordial.
Officer Burnes continued to believe defendant had consumed
alcohol, concluded probable cause existed for an arrest, and
placed defendant under arrest for OUI. Officer Burnes based
his probable cause conclusion on the odor of intoxicants,
defendant's admission he consumed alcohol, his speeding,
his balance outside of the vehicle, his poor finger
dexterity, and his refusal to perform field sobriety tests.
Based on his experience, these behaviors are exhibited by
people who have consumed too much alcohol to operate a motor
field sobriety test, like any other investigatory stop, must
be based on specific and articulable facts which, taken
together with rational inferences from those facts,
reasonably warrant that intrusion." State v.
Simons, 2017 ME 180, ¶ 12, 169 A.3d 399 (quotation
marks omitted). "At the time of making an investigatory
stop, a police officer must have an articulable suspicion,
objectively reasonable in light of all the circumstances,
that the object of the search has committed or is about to
commit a crime." Id. (quotation marks omitted).
The reasonable articulable suspicion standard requires the
"officer's suspicion be more than mere speculation
or an unsubstantiated hunch." Id. (quotation
marks omitted). Based on the above facts, but excluding the
odor of intoxicants from the inside of the vehicle, Officer
Burnes had reasonable articulable suspicion to support his
request that defendant exit his vehicle to conduct field
sobriety tests. See id., at ¶ 13; State v.
Northrup, SAGSC-CR-2012-493 (Me. Super. Ct., Sag. Cty.,
Aug. 23, 2012).
cause exists if based on the information available, a prudent
and cautious person would believe that crime was or is being
committed. State v. Palmer,2018 ME 108, ¶ 10,
190 A.3d 1009. "In the context of an OUI investigation,
an officer only needs evidence sufficient to support the
reasonable belief that the person's senses are affected
to the slightest degree, ...