State of Maine v. Ayer

Maine Superior

State of Maine v. Ayer

DecidedSeptember 6, 2018

DocketKENcr-18-90

StatusUnpublished

This text of State of Maine v. Ayer (State of Maine v. Ayer) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State of Maine v. Ayer, (Me. Super. Ct. 2018).

Pincite

Opinion

STATE OF MAINE UNIFIED CRIMINAL COURT KENNEBEC, ss LOCATION: AUGUSTA DOCKET NO. CR-2018-90

STATE OF MAINE ) ) v. ) ORDER ON MOTION TO SUPPRESS ) KATHARINE E. AYER )

Hearing on the Defendant' s motion to suppress was held on August 23 , 2018. The

Defendant was present and represented by Matthew B. Nichols, Esq. The State was represented

by Assistant District Attorney Jacqueline A. Sartoris. After hearing both attorneys were given

additional time to submit memoranda and case law for the court's consideration. Both attorneys

did so.

The Defendant was charged by the State on March 12, 2018, with one count of Criminal

our, Class D, according to 29-A M.R.S.A. §2411(1-A)(A), based on allegations that she did operate a motor vehicle while under the influence of intoxicants or while having an alcohol level

of .08% grams or more of alcohol per 100 milliliters of blood or 210 liters of breath. The State

also charged the Defendant with one count of Operating an Unregistered Vehicle, Class E,

according to 29-A M.R.S.A. §35l(l)(B). These two offenses were alleged to have occurred on

or about January 12, 2018, in Manchester, Maine.

Through her original motion to suppress dated January 17, 2018, Defendant sought to

suppress many different pieces of evidence but at hearing she agreed that the only issue was

whether the officer had probable cause to require her to take an intoxilyzer test. Defendant

argues that there was no probable cause to believe she was committing the crime of Criminal

our and the intoxilyzer result should be suppressed. Defendant concedes, however, that the

officer did have probable cause to arrest the Defendant for Operating an Unregistered Vehicle.

1 At hearing the State presented the testimony of Trooper Daniel Murray of the Maine

State Police. The Defendant was present and chose not to testify or call any witnesses or present

any evidence beyond her cross-examination of the officer.

Findings of Fact

During the evening hours of January 12, 2018, Defendant was driving a white VW on a

public way somewhere near the Manchester Fire Department. (The State never presented any

evidence or testimony about exactly when or what town or what road the stop of the Defendant

occurred.) The evening was a rainy, foggy night with snow banks on the sides of the road.

Trooper Daniel Murray of the Maine State Police had been a trooper for exactly one year.

Trooper Murray was in uniform and driving a state police cruiser. (Trooper Murray had

previously worked as a security officer at a hospital and dealt with intoxicated persons

throughout his employment there.) Trooper Murray received a call from another off-duty state

trooper, Trooper Tlumac, that he was following a car that was "all over the road". Trooper

Murray proceeded to the location and got behind a line of 5 vehicles that were going about 25-35

miles per hour in a 50 mile per hour zone. This public way was a 2-lane paved road with a

yellow center line and white fog lines. After about 30 seconds of following the line of cars,

Trooper Murray became concerned about the safety of the Defendant's reportedly swerving

vehicle so he engaged his blue lights. All other vehicles, including the off-duty trooper, pulled

over and Trooper Murray pulled in behind the Defendant's vehicle and made a stop. The

Defendant pulled off to the side of the road without any issue.

Trooper Murray walked up to the driver's side window and spoke with the Defendant.

The Defendant and her passenger said they were coming back from dinner and a movie in

2 Waterville. The Defendant admitted to having had a glass of wine with dinner. Trooper Murray

smelled an odor of alcohol on the Defendant's breath. The Defendant gave Trooper Murray her

driver's license, an expired registration, an expired insurance card and other paperwork he didn't

ask for. The Defendant admitted she was having a hard time seeing the white line on the road

because of the foggy conditions and acknowledged that she was "kind of in and out" on the road.

Trooper Murray asked the Defendant to step out of her car to do some field sobriety tests.

The Defendant was asked repeatedly about how much she had had to drink and each time said

just one glass of wine. The Defendant did admit it was a "generous" glass of wine at one point.

The Defendant showed no signs of unsteadiness getting out of her car and walked behind her car

with Trooper Murray. Trooper Murray attempted to have the Defendant do the HGN (Horizontal

Gaze Nystagmus) test. Trooper Murray explained the test and attempted to have the Defendant

do the test at least 5 times but the Defendant was unable to complete the test as she kept moving

her head and not just her eyes. Trooper Murray thought of trying to do the Walk and Turn test

but the road conditions were not adequate as there was a steep grade. Trooper Murray suggested

doing a One-Legged Stand test but the Defendant explained that she had narrow feet and it might

be a problem. Ultimately, Trooper Murray abandoned that test as well given the severe grade of

the roadside and the conditions and the concern that the Defendant might fall. The Defendant's

speech was not slurred in spite of being "chatty". The Defendant's eyes were not red, bloodshot

or glassy as is the case in many OUI arrests. The Defendant never swayed during her time with

Trooper Murray on the side of the road. Trooper Murray explained that he was going to take the

Defendant in for a test given her slow and erratic operation, her admission to drinking alcohol,

the smell of alcohol on her breath and her inability to complete the HGN test.

3 On the way to the jail, Trooper Murray considered stopping at the Manchester Fire

Department to use their building's flat, dry floor to try and complete standardized field sobriety

tests like Walk and Turn and One-Legged Stand. Ultimately, Trooper Murray decided not to do

those tests and also decided not to give other non-standardized tests such as the alphabet test, the

counting backward test or the finger dexterity test. Instead, Trooper Murray went to the Augusta

Police Department and administered an intoxilyzer test to the Defendant.

Probable Cause to A k Defendant to Take an Intoxilyzer Test

This court looks to the case of State v. Webster, 2000 ME 115 ~7, 754 A.2d 976 as

authority on the issue of probable cause in cases of OUI in Maine. This case is very helpful to

the court's analysis of the issue and is directly on point in this case.

The probable cause standard for requiring a person to tak a blood alcohol test has a very low threshold. A person is guilty of operating unde)· the influence if his or her senses are "impaired however sl.ightty' 1 or "to any extent" by 1he al.coho] that person has had to drink. See State v. Worster 611 A.2d 979, 981 (Me. l992). For there to be probable cause to arrest someone for operating under the infl uence, therefore, an officer U1 LIB1 have pro bable cause to believe that the pers n's senses are affe cted to the slightest degree, or to any extent, by the alcohol that p erson bas had to ch'ink. A reasonabl e suspicion to support probable cause can exist independent of any evidence of actual impaired driving. See State v. Eastman, 1997 ME 39, ~9, 691 A.2d 179, 182; State v. Wood, 662 A.2d 919, 920 921 (Me.

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