State of Maine v. Savino

Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET CUMBERLAND, ss. No. CR-14-8181 V STATE OF MAINE

v. ORDER

JOSEPH SAVINO,

Defendant

Before the court is a motion to suppress filed by defendant Joseph Savino. Mr.

Savino disputes that Officer Brown had reasonable articulable suspicion to detain him

for field sobriety tests.

A hearing was held on April 9, 2015, and the court finds as follows:

On December 13, 2014 at 2 am Officer Brown was driving east on Main Street in

Gorham when a vehicle driven by defendant Joseph Savino passed him going in the

opposite direction. Brown saw Savino's vehicle accelerate very quickly and clocked it

on radar as moving at 55 miles per hour in a 40 mile per hour zone. Brown turned

around and tried to catch Savino's vehicle, which stopped suddenly in the center of the

road then pulled off to the right. At that point the right passenger door opened and it

was only at that point that Savino activated his right tum signal.

Brown approached the vehicle. Savino was in the driver's seat, another male was

in the right front passenger seat, and a female was sitting behind them. When the officer

asked Savino why he was hurcy.j.n,g11 Sayi.p.q 1 cm.s~ffed that his passenger was about to £0 l L lilt1 L. L od8 S.u~ vomit.

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Brown detected the odor of intoxicants coming from the vehicle, but it was not

possible to determine where that was coming from. Savino told the officer that he had

had one beer two hours previously.

At that point, Brown conducted a partial HGN test while Savino remained seated

in the driver's seat and observed a lack of smooth pursuit. At that point Brown asked

Savino to exit the vehicle and undergo field sobriety tests.

Discussion

Savino points out that an investigatory detention should last no longer than is

necessary to effectuate the purpose of the stop. United States v. Sharpe, 470 U.S. 675, 684

(1985). If Officer Brown's interaction with Savino once Savino's vehicle had stopped did

not give rise to a sufficient basis to detain Savino further, the motion to suppress should

be granted. The State therefore has the burden of demonstrating that by the time Brown

asked Savino to get out of his vehicle to perform field sobriety tests, Brown had a

reasonable articulable suspicion of impairment sufficient to detain Savino for field

sobriety tests.

Savino contends that the partial HGN test should not be admissible, arguing that

a partial test that is administered to a seated driver does not meet the requirement that

the test be "properly administered." State v. Taylor, 1997 ME 81 <JI 12, 694 A.2d 907. The

court agrees that the partial test conducted while Savino was in the vehicle would not

be admissible as evidence of impairment at trial. However, it is being offered for a

different purpose here - as evidence of a reasonable articulable suspicion that further

investigation was appropriate. The Law Court expressly found that a partial HGN test

administered while the driver remained seated in the car was one of the factors that

3

constituted a reasonable basis for suspicion in State v. Wood, 662 A.2d 919, 920-21 (Me.

1995).

Moreover, although this would be a considerably closer case without the partial

HGN result, the court finds that the speeding by Savino's vehicle, the odor of

intoxicants from' within the automobile, the operation of the vehicle during the early

hours of the morning, Savino's admission that he had consumed alcohol, and the

indication that Savino's passenger thought he needed to vomit would independently be

sufficient to generate reasonable articulable suspicion justifying field sobriety tests. See

State v. McPartland, 2012 :rviE 12 <JI 15, 36 A.3d 881; State v. Sylvain, 2003 :rviE 5 <JI 18, 814

A.2d 984.

Savino points to the fact that Brown testified that he believed Savino when

Savino explained that he had stopped the car because he thought his passenger was

about to vomit. Although Brown believed Savino, this does not dispel the fact that

Brown had a reasonable articulable suspicion justifying his decision to further detain

Savino for field sobriety tests.

The defendant's motion to suppress is denied.

Dated: April I { 2015

Thomas D. Warren Justice, Superior Court

STATE OF MAINE CRIMINAL DOCKET vs CUMBERLAND, ss. JOSEPH J SA VI NO Docket No CUMCD-CR-20 14-08181 II MERCIER WAY GORHAM ME 04038 DOCKET RECORD DO B: 07/28/1992 Attorney: MATTHEW NICHOLS State's Attorney: STEPHANIE ANDERSON NICHOLS & WEBB PA 1250 FOREST AVE UNIT 10 PORTLAND ME 04103 RETAINED 01/02/2015

Charge(s) I QUI (ALCOHOL) 12/13/2014 GORHAM Seq 12942 29-A 2411(1-A)(A) Class D BROWN GOR Docket Events: 12115/2014 FILING DOCUMENT- NON CASH BAIL BOND FILED ON 12115/2014

12115/2014 Charge(s): I HEARING- ARRAIGNMENT SCHEDULED FOR 01114/2015 at 08:30a.m. in Room No.

NOTICE TO PARTIES/COUNSEL 12/15/2014 BAIL BOND- $3,500.00 UNSECURED BAIL BOND FILED ON 12115/2014

Bail Amt: $3,500 Date Bailed: 12/13/2014 1069

12/29/2014 Charge(s): I SUPPLEMENTAL FILING- COMPLAINT FILED ON 12/29/2014

01/06/2015 Party(s): JOSEPH J SA VI NO ATTORNEY- RETAINED ENTERED ON 01/02/2015

Attorney: MATfHEW NICHOLS 01115/2015 Charge(s): I HEARING- ARRAIGNMENT WAIVED ON 01114/2015

Attorney: MATTHEW NICHOLS 01115/2015 Charge(s): I PLEA- NOT GUILTY ENTERED BY COUNSEL ON 01114/2015

Attorney: MATTHEW NICHOLS 01115/2015 Charge(s): I HEARING- DISPOSITIONAL CONFERENCE SCHEDULED FOR 03/24/2015 at 10:00 a.m. in Room No. 7

01115/2015 Charge(s): I TRIAL- JURY TRIAL SCHEDULED FOR 04/27/2015 at 08:30a.m. in Room No. II

NOTICE TO PARTIES/COUNSEL 02/09/2015 LETTER- FROM PARTY FILED ON 02/09/2015

Attorney: MATTHEW NICHOLS REQUEST FOR DEFENDANT TO BE EXCUSED FROM DISPO ON 3-24-15. ADA BARRY DOES NOT OBJECT. DEFENDANT EXCUSED FROM ATTENDING DIS PO CONFERENCE- PER JUSTICE MILLS 2-11-15 03/11/2015 Charge(s): I

CR-200 Page I of2 Printed on: 04/22/2015

JOSEPH J SA VI NO

CUMCD-CR-2014-08181

DOCKET RECORD

HEARING- DISPOSITIONAL CONFERENCE NOTICE SENT ON 03/11/2015

03/24/20 IS Charge(s): I HEARING- DISPOSITIONAL CONFERENCE NOT HELD ON 03/24/2015 JOYCE A WHEELER , JUSTICE Attorney: MATTHEW NICHOLS DA: WILLIAM BARRY CONTINUE TO MOTIONS. WILL MOST LIKELY BE A PLEA.

03/24/2015 MOTION- MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 03/24/2015

03/24/2015 HEARING- MOTION TO SUPPRESS EVIDENCE SCHEDULED FOR 04/09/2015 at 01:00p.m. in Room No.

NOTICE TO PARTIES/COUNSEL 04/09/2015 HEARING- MOTION TO SUPPRESS EVIDENCE HELD ON 04/09/2015 THOMAS D WARREN , JUSTICE Attorney: MATTHEW NICHOLS DA: WILLIAM BARRY Defendant Present in Court STATE CALLS OFFICER MICHAEL BROWN. AFTER CROSS EXAMINATIONS; STATE RESTS. DEFENSE RESTS. STATE ARGUMENTS MADE. DEFENSE ARGUMENTS MADE. STATE TO PROVIDE MEMORANDUM OF LAW BY MONDAY. J WARREN TAKES MOTION UNDER ADVISEMENT.

04/2112015 MOTION- MOTION TO SUPPRESS EVIDENCE DENIED ON 04/17/2015 THOMAS D WARREN , JUSTICE COPY TO PARTIES/COUNSEL

04/21/2015 ORDER- COURT ORDER FILED ON 04/17/2015 THOMAS D WARREN , JUSTICE SAVINO POINTS TO THE FACT THAT BROWN TESTIFIED THAT HE BELIEVES SAVINO WHEN SAVINO EXPLAINED THAT HE HAD STOPPED THE CAR BECAUSE HE THOUGHT HIS PASSENGER WAS ABOUT TO VOMIT. ALTHOUGH BROWN BELIEVED SAVINO, THIS DOES NOT DISPEL THE FACI THAT BROWN HAD REASONABLE ARTICUBLE SUSPICION JUSTIFYING HIS DECISION TO FURTHER DETAIN SAVINO FOR FIELD SOBRIETY TESTS. THE DEFENDANT'S MOTION TO SUPPRESS IS DENIED.

A TRUE COPY ATTEST: ------------------------

Clerk

CR-200 Page 2 of2 Printed on: 04/22/2015