State of Maine v. Hughes

• Court: Superior Court of Maine
• Decided: February 3, 2017
• Docket: CUMcr-16-30254
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CRIMINAL ACl'ION DOCKET NO. CR-16-30254

STATE OF MAINE

V. JUDGMENT

DANA HUGHES,

Defendant

JJACKG_ROUND

Jury-waived trial on the motion to suppress and complaint was held on January 18, 2017.

For the following reasons, the court denies the motion to suppress and finds defendant not guilty.

FACTS

Sergeant David Hall has worked for the Cumberland County Sheriff's Department for 25

years . He was trained on operating under the influence cases at the Maine Criminal Justice

Academy in l 982. He has taken no other courses or had any additional training, except on the

job training. He is not deemed proficient in the horizontal gaze nystagmus test. He is trained in

the field sobriety tests considered standard in 1982.

On July I, 2016, he was dispatched to a possible personal injury accident on Route 35 in

Naples, Maine. As he headed south, he saw the vehicle 30 feet off the road over an embankment.

The driver's side of the vehicle had substantial damage. Based on his measurements, the vehicle

left the road 761 feel before it stopped. (State's Ex. 2.)

Defendant's sister, Kathryn llughes, was traveling on Route 35 behind defendant en route

to family property on Long Lake in Harrison. Ms. Hughes lives in Winchester, Massachusetts.

She has an M.B.A . from Columbia and owns a marketing consulting firm . She described Route 35 in the area where defendant's vehicle left the road as pretty

narrow and very winding with bends and turns. When she realized the vehicle off the road was

her brother's vehicle, she turned around and returned to the scene.

The Naples rescue and fire personnel were at the scene . Sgt. Hall located a man sitting in

the back of the rescue vehicle and asked what happened. The man did not answer. When Sgt.

llall asked again, the man pointed to his forehead, on which there were abrasions. When asked

how the accident happened, the man, who identified himself as Dana Hughes, stated he swerved

to miss a bear. Defendant told his sister he swerved to avoid a large object. Defendant also told

her he did not remember if he hit a tree because he had been thrown around in his vehicle before

it stopped. (State's Ex. 2, Images 1-4.)

Defendant sometimes did not answer Sgt. Hall's questions . Defendant stated a number of

times he did not hear the questions and did not henr Sgt. Hall . When defendant stated he could

not hear, he stated he was "not busting fSgt. Hall'sj balls." Sgt. Hall noted defendant's eyes

were blood shot and the Sgt. Hall smelled "just a slight" odor of an intoxicating beverage coming

from defendant's area.

When Ms. Hughes arrived at the scene, she found defendant in the rescue vehicle . He

looked like he was in shock. She spoke to him but he did not respond.

Sgt. Hall left the rescue vehicle and went to defendant's vehicle to begin the accident

report. Sgt. Hall returned to the rescue vehicle and to remove defendant, who lay on a gurney.

When Sgt. Hall said he had to remove defendant from the vehicle, defendant just looked at Sgt.

Hall and did nol get out of the vehicle. Sgt. Hall told defendant a second time to get out or Sgt.

2 Hall would remove defendant from the vehicle because defendant was not cooperating.

Defendant got out of the vehicle. 1 Sgt. Hall did not ask defendant if he was injured.

Sgt. Hall asked defendant how much he had had to drink. Sgt. Hall testified on direct

examination that defendant replied, "two beers" at Bray's, which is a restaurant pub that serves

alcohol. On cross-examination, Sgt. Hall testified that defendant replied, "two drinks." When

asked again why his vehicle crashed, defendant replied he swerved to hit a moose.

Sgt. Hall then asked defendant to perform field sobriety tests but did not explain what

that entailed. Defendant said he could. Prior to administering any tests, Sgt. Hall did not ask

defendant if he had any injuries, medical conditions, problems with balance, or physical

impairments that could affect his ability to perform the tests . Ms. Hughes described defendant's

severe disabilities to include two damaged discs and an arthritic hip. He walks with a great deal

of pain and with a clear limp while moving from side to side. He also is hearing impaired with

progressive hearing deterioration.

Sgt. Hall asked again what defendant had to drink . Defendant replied "a couple." Sgt.

Hall asked what "a couple" meant and defendant did not answer. Sgt. Hall asked defendant to

rate how drunk he was on a scale of one to ten with one as having had no alcohol and ten as

being falling down drunk. Defendant did not understand the question and said he did not

understand what Sgt. Hal I wanted. Sgt. Hall asked again for a rating and defendant again did not

understand the question.

Sgt. Hall explained the heel to toe test, which, according to Sgt. Hall, defendant appeared

to understand . He raised his hands during the instructional phase and began the test before the

instructional phase was completed. Sgt. Hall did not tell defendant not to start the test until he

was told to start. Sgt. Hall told defendant to stop and sta1t again. Defendant replied he would not

1 For purposes of the motion to suppress. defendant argues he was in custody at this time.

3 do the tests. Sgt. Hall did not offer any other tests, including the finger dexterity test, which he

will use if someone cannot walk. Defendant did not complain to Sgt. Hall of injuries or pain or

request to see the rescue personnel again.

Ms . Hughes saw defendant interact with Sgt. Hall when defendant was walking away

from and then walking toward Sgt. Hall. Defendant was walking with great difficulty and

continued to look like he was in shock.

Sgt. Hall placed defendant under arrest, handcuffed his hands behind his back, and placed

him on the cruiser. Defendant stiffened his arm. Sgt. Hall stated he would dump defendant on

the ground if he did not loosen his arm.

After defendant was placed in the crniser, Ms. Hughes approached Sgt. Hall and

identified herself as defendant's sister. In an effort to assess the situation, she asked what had

happened and where her brother would be taken. Ms . Hughes described Sgt. Hall as agitated,

aggravated, aud belligerent. His shoulders were hunched up and he leaned toward her. His

elevated tone of voice and demeanor caused Ms. Hughes to feel uncomfortable and she backed

away . She remained low key and calm because she did not want Sgt. Hnll agitated with her,

which, she realized, would not help the situation.

When Sgt. Hall and defendant were in the cruiser, Ms. Hughes asked Sgt. Hall to speak to

her family's attorney, James McNulty, who was connected on her cell phone. Attorney McNulty

graduated from Suffolk Law School in 1978. He has had a general practice, including criminal

defense, in his own firm and then on his own. Since 1993, he has been a sole practitioner

representing small and mid sized businesses. Ile has represented members of the Hughes family.

Ms. Hughes discussed her observations with Attorney McNulty. She called him because

defendant had been arrested and she was unsure of the procedure. Sgt. Hall seemed annoyed and

4 disgusted with the request to speak to the attorney. Sgt. Hall first declined because he was busy

but then spoke briefly to the attorney. Attorney McNulty hoped to speak to defendant but Sgt.

Hall declined that request twice. Attorney McNulty described Sgt. Hall's demeanor and tone as

cautious, hostile, and defensive initially but increasingly uncooperative and angry. By the end of

the conversation, Attorney McNulty described Sgt. Hall's tone as combative. He accused

Attorney McNulty of telling the sergeant how to proceed, which Attorney McNulty did not do.

Once defendant was arrested, Attorney McNulty thought he had the right to speak to defendant,

which angered Sgt. Hall, who said Attorney McNulty had no right to speak to defendant.

Attorney McNulty's tone and demeanor remained polite and respectful but persistent. Sgt. Hall

terminated the phone call. Attorney McNulty never spoke to defendant during the call.

At trial, Sgt. Hall testified he was not sure what defense counsel meant when asked

whether the conversation at the scene with defendant's sister was cordial. Sgt. Hall testified at an

earlier proceeding in the case that the conversations with Ms. Hughes and Attorney McNulty

were perfectly cordial.

Sgt. Hall transported defendant to the Cumberland County jail. Although the Bridgton

Police Department was 20 or 25 minutes from the scene. Sgt. Hall transported defendant to the

Cumberland County jai I, which was an hour from the scene. En route, defendant stated he

swerved to miss a person . The cruiser had a solid glass cage with an open center to permit the

officer to hear a defendant during transport. The back doors cannot be opened unless the officer

opens the doors.

Defendant complained the handcuffs hurt him and his arms were numb . Sgt. Ilall called

for backup but none was available for some time so he put defendant in a waist belt. Sgt. Hall

had checked the cuffs for tightness before he double locked them. lie was able to insert one

5 index finger, which was satisfactory based on his training. Sgt. Hall stated defendant's wrists

were red but the cuffs were not too tight,

In anticipation of the intoxilyzer lest, Sgt. Hall checked defendant's mouth and waited

fifteen minutes. Sgt. Hall entered defendant's information and defendant then stated he would

not pe1form the test. Sgt. Hall read the implied consent form and testified defendant understood

the questions and did not take the test. Sgt. Hall entered a refusal.

Sgt. Hall testified he saw blood dripping from defendant's wrists and pooling on the floor

of the jail and asked defendant whether he caused himself to bleed. Sgt. Hall concluded

defendant had injured his wrists by twisting his wrists back and forth during trnnsport. Sgt. Hall

asked a member of the jail staff to check defendant's situation. A nmse cleaned the glass and

blood from defendant.

Sgt. Hall agreed he never read Mi ornda warnings to defendant. Defendant never swore,

threatened, or tried to use bodily force.

Ms. Hughes saw her brother the next morning at approximately 8:30 n.m. They returned

to the family home in Harrison. Defendant was limping and appeared very much in pain. He

said the glass in his shoe cut his foot and caused bleeding during the night. Photographs show

defendant's left foot cut, bruised, and swollen. (Def.'s Exs. 1-4.) Ms . Hughes observed the

wounds appeared fresh nnd were still bleeding with no scabs. His foot was cleaned somewhat

before the photographs were taken. His entire shoe was discolored with blood. Ms . Hughes saw

no blood or bleeding on defendant's wrists and no scabs 01· signs of recent bleeding. Shortly

after they returned to the family home, medical attention for defendant was sought at the

Bridgton Hospital.

6 CONCLUSIONS

Motion to Su press

Defendant argues he was in custody when he was removed form the ambulance. The

court concludes defendant was subject only to an investigatory detention and was not in custody

for Miranda purposes. Se~ State_v, erngg, 2012 ME 102, ~rn 3-5, 9, 48 A.3d 769.

Trial

The State must prove beyond a reasonable doubt that defendant operated a motor vehicle

while under the influence of intoxicants. See State v. Atkins, 2015 ME 162, 1121, 129 A.3d 952.

Testimony that defendant "exhibited symptoms of intoxication can be sufficient to support a

finding that the defendant was under the influence." Jd,

Defendant operated a motor vehicle, which left the road, after he consumed two beers or

drinks and had a slight odor of intoxicating beverages coming from his area. That evidence is

sufficient to establish probable cause. Sec State v. Bradlc _, 658 A.2d 236, 237-38 (Me . 1995).

The issue is whether defendant's faculties were impaired by alcohol. See Atkins, 2015 ME 162,

! 2 I. 129 A.3d 952 . The State asks the court to find beyond a reasonable doubt that the difficulties experienced by defendant during his interaction with Sgt. Hall resulted from the

alcohol consumed and that he was under the influence . On this record, the court declines that

request .

first, Sgt. Hall did not testify about any opinion he formed that defendant was impaired

or exhibited symptoms of intoxication. He testified about what he and defendant dicl and that Sgt.

Hall placed defendant under arrest.

7 Second, the testimony of Ms. Hughes and Attorney McNulty was credible. On July I,

2016, defendant suffered from significant physical impairments and limitations and pain,

including walking and hearing difficulties. He had just been involved in an accident that included

travelling 271 feet after leaving the road and colliding with a tree. The accident resulted in severe

damage to his vehicle and injury to himself. Sgt. Hall did not inquire about any of these

circumstances. Instead, the State appears to shift the burden to defendant, while in apparent

shock and while bleeding, to notify law enforcement about his injuries and physical impairments;

to understand, with no explanation, the concept of field sobriety tests and how and when they

should be petformed; and to answer every question and comply with every demand, regardless of

whether the questions and demands were heard and understood.

Third, the credible description by Ms. Hughes and Attorney McNulty of the treatment of

defendant and of them is unrebutted on this record and affects the court's determination of the

credibility of the State's only witness. Fourth, the comt does not conclude, on this record, that

defendant understood the implied consent information and accords no significance to the refusal

to submit to a test.

The State has failed to prove beyond a reasonable doubt defendant was under the

influence at the time he operated the vehicle.

The entry is

Defendant's Motion to Supprnss is DENIED.

The Court's finding: under the Influence.

Date: February 3, 2017 1 , ncy Mills

Justice, Superior Court