State of Maine v. Wandell

Maine Superior

State of Maine v. Wandell

DecidedAugust 24, 2017

DocketCUMcr-17-20183

StatusUnpublished

This text of State of Maine v. Wandell (State of Maine v. Wandell) 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. Wandell, (Me. Super. Ct. 2017).

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Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET CUMBERLAND, ss. No. CR-17-20183

STATE OF MAINE

V. ORDER

ROY WANDELL,

Defendant

Defendant Roy Wandell is charged with a second offense OUI alleged to have occurred

on March 22, 2017. He filed a motion to suppress on which a hearing was held on August 15,

2017.

At the outset of the hearing counsel for Wandell clarified that the motion to suppress was

directed at whether there was reasonable articulable suspicion for the stop of Wandell's vehicle,

whether there was reasonable articulable suspicion to subject Wandell to field sobriety tests, and

whether there was probable cause for arrest. The State bears the burden of proof by a

preponderance of the evidence on those issues.

The court finds as follows:

Freeport police officer Rebecca Kavanaugh was on duty at approximately 8:30 pm on

March 22, 2017 when she was informed by a dispatcher that an off-duty trooper had observed a

vehicle which was operating "all over the roadway." Officer Kavanaugh was also informed that

the off-duty trooper had pulled up beside the vehicle, after it stopped at the Freeport

McDonald's, and observed that the driver had glossy eyes. The dispatcher provided Kavanaugh

with the plate number and a description of the vehicle, an older white F-150 pickup. Officer Kavanaugh proceeded to a location where she could observe vehicles exiting the

McDonalds parking area onto Mallett Drive. Once there, she saw the F-150 exit the parking area

without coming to a stop before it entered the roadway. The F-150 then turned right on Maine

Street, and Kavanaugh followed it closely as it turned left on School Street and then left on Bow

Street. After approximately a mile, at the approximate location where Bow Street becomes

Flying Point Road, she turned on her blue lights and stopped the F-150, which was driven by

defendant Wandell. When it came to a stop, Wandell's vehicle was at the intersection of Flying

Point Road and Pettengill Road.

During the time when she was following Wandell's vehicle, Officer Kavanaugh saw it

drift to the left over the yellow centerline at least twice and drift to the right over the fog line at

least twice. 1 Her observations, combined with the information she had received that the vehicle

had previously been "all over the roadway" and that the operator's eyes had been glossy,

constituted the basis for reasonable articulable suspicion on Officer Kavanaugh's part that

Wandell was operating under the influence.2

When Officer Kavanaugh approached Wandell's vehicle and spoke with him to ask for

his driver's license and registration, it appeared to her that he was having difficulty focusing. He

began looking for his license, said a few words, went back to looking, and even grabbed for the

officer's flashlight to assist him. He thereafter produced his license and registration and on

inquiry, denied that he had been drinking. However, Officer Kavanagh smelled a mild odor of

alcohol when she was speaking with Wandell. She also observed that his eyes were glossy.

1 This is corroborated by the crmser camera video entered into evidence as State's Ex. 1 at the suppression hearing. 2 Reasonable articulable suspicion may be based on the collective knowledge of law enforcement agents. State v. Carr, 1997 ME 221 ~ 7, 704 A.2d 353.

2 Suspecting that Wandell was impaired, Officer Kavanaugh then asked Wandell to exit his

vehicle in order to perform field sobriety tests.

The State has met its burden of proof to demonstrate that Officer Kavanaugh had an

objectively reasonable articulable suspicion to detain Wandell for field sobriety tests. This is

based on the same information that justified the stop of the vehicle, plus Wandell' s apparent lack

of focus, his glossy eyes, his attempt to grab the officer's flashlight while he was looking for his

driver's license and registration, and the mild odor of alcohol that Officer Kavanaugh detected

when speaking with Wandell despite his denial of drinking. See State v. Simons, 2017 ME 180 ,r,r

12-13; State v. Eastman, 1997 ME 39 ,r ,r 6-7, 691 A.2d 179.

The video from Officer Kavanaugh's cruiser camera shows that Wandell may have been

very slightly off-balance when he stepped out of his vehicle and that he then walked in a gingerly

manner back to the front of Officer Kavanaugh's vehicle to perform an HGN test. Officer

Kavanaugh asked Wandell to sit on the front push bar of her cruiser for the HGN test. She had to

ask him twice to do so. She asked him if he was on any medication, had any head injuries, or was

wearing contacts. He said no. Although instructed to follow the stylus with his eyes not his head,

Wandell initially moved his head.

Officer Kavanaugh observed all six possible clues of impairment on the HGN test. She

then had Wandell move over to Pettengill Road to perform the walk-and-tum test because she

believed it had less of an incline than the location on Flying Point Road where the stop had been

made. 3

3 This put Officer Kavanaugh and Wandell out of the view of the cruiser camera for that test. There is no audio accompanying the cruiser camera video because Officer Kavanaugh, who had been working for the Freeport department for less than two months, testified she was not aware that she could turn the microphone on.

3 On the walk-and-tum test, Officer Kavanaugh observed at least five clues - Wandell used

his arms for balance, he did not correctly walk heel to toe, he stepped off the imaginary line, he

stopped at one point and had to be told to continue, and he made an improper tum.

Although it was Officer Kavanaugh's recollection that the one-leg stand test was also

performed out of range of the cruiser camera, State's Ex. 1 appears to show that Wandell

returned to the area in front of Officer Kavanaugh's cruiser to perform that test. Because of

where he was standing, only his upper body is visible but some unsteadiness is apparent. The

video appears to corroborate Officer Kavanaugh's recollection that she observed Wandell put his

foot down once during the one-leg stand. She then arrested Wandell for operating under the

influence

The court does not place much significance on minor instances of unsteadiness, on initial

failures to precisely follow an officer's instructions, or on isolated miscues on field sobriety tests

- issues that can result from nervousness or unfamiliarity with the circumstances. However, it

finds that based on the full complement of clues observed on the HGN test4 and the numerous

clues observed on the walk and tum, combined with the factors previously noted that gave rise to

reasonable articulable suspicion, Officer Kavanaugh had probable cause to arrest Wandell for

operating under the influence. See State v. Webster, 2000 ME 115 ,r,r 7-8, 754 A.2d 976 (erratic

driving maneuver and strong odor of alcohol combined with dubious claim that only one drink

had been consumed four hours earlier found sufficient to meet the "very low threshold" of

probable cause even though field sobriety tests had been successfully performed).

In this case there was no admission of drinking and only a mild odor of alcohol.

However, a driver's denial of drinking cannot be given much weight. Wandell failed to

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