State v. Wilkinson

• Court: Superior Court of Maine
• Decided: December 4, 2009
• Docket: CUMcr-09-4792
• Status: Unpublished

Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET LOCATION: PORTLAND DOCKET NO. CUMCD-CR-09-4792 1 :} f (I, I I

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STATE C:::.i ..a 0 r-.·1 ('I

I vs. DECISION AND ORDER s:::

ZACHARIAH WILKINSON, -..

, Based on the evidence presented at the motion to suppress hearing on December 3, 2009, the court finds 1 that the defendant was not under arrest until the officer began placing him in handcuffs behind the defendant's vehicle; 2 even if defendant was in custody when the officer ordered defendant to throw his keys out of the car, the officer had probable cause to believe that the defendant committed the crime of criminal speeding; the results of the HGN test are not testimonial statements and smelling alcohol on the defendant's breath is not a testimonial statement; the officer did not arrest the defendant for operating under the influence until the defendant was handcuffed, at which

1 If further factual findings are necessary for appeal, the defendant may file a motion for findings of fact and conclusions of law. See, e.g., State v. Langlois, 2005 ME 3, ~9-1 0 (defendant was subjected to an investigatory 2

detention, not an arrest, when the officer ordered him at gunpoint to lie down). time the officer had probable cause to arrest for OUI; and the defendant did not make any incriminating testimonial statements that the state intends to use at trial. 3 Therefore, defendant's motion to suppress is denied.

Dated:

Judge, Unified Criminal Docket

3 The State asserted at the motion hearing that it would not offer at trial any statements about speed that the defendant may have made after his arrest, handcuffing, and placement in the police cruiser.

2 STATE OF MAINE VS ZACHARIAH WILKINSON Docket No CUMCD-CR-2009-04792 359 FOSTER RD AUBURN ME 04210 DOCKET RECORD

DOB: 03/20/1982 Attorney: ROBERT ANDREWS State's Attorney: STEPHANIE ANDERSON ROBERT ANDREWS ESQ PO BOX 17621 PORTLAND ME 04112 RETAINED 09/29/2009

Charge(s) .\,. t

1 OPERATING UNDER THE INFLUENCE 0612012009 NEW GLOUCESTER Seq 9878 29-A 2411 (1-A) (A) c'lass D TUFTS I CUM 2 MOTOR VEHICLE SPEEDING: 30+ MPH OVER SPEED 0612012009 NEW GLOUCESTER LIMIT Seq 1147 29-A 2074 (3) Class E TUFTS I CUM

Docket Events:

06/23/2009 FILING DOCUMENT - CASH BAIL BOND FILED ON 06/23/2009

07/07/2009 Charge(s): 1,2 HEARING- ARRAIGNMENT SCHEDULED FOR 07/15/2009 ® 8:30 in Room No. 1

NOTICE TO PARTIES/COUNSEL 07/07/2009 BAIL BOND - $200.00 CASH BAIL BOND FILED ON 06/23/2009

Bail Receipt Type: CR Bail Amt: $200 Receipt Type: CK Date Bailed: 06/20/2009 Prvdr Nall,l~i SA~H YOUNG Rtrn Name: SARAH YOUNG 988 07/09/2009 Charge(s): 1,2 SUPPLEMENTAL FILING - COMPLAINT FILED ON 07/09/2009 JAMES TURCOTTE , ASSISTANT CLERK 07/15/2009 Charge(s): 1,2 HEARING- ARRAIGNMENT HELD ON 07/15/2009 ® 8:30 in Room No. 1 MARYGAY KENNEDY , JUDGE DA: WILLIAM BARRY 07/15/2009 Charge(s): 1,2 PLEA- NOT GUILTY ENTERED BY DEFEND~T 0~ 07/15/2009 ® 8:30 in Room No. 1 MARYGAY KENNEDY , JUDGE DA: WILLIAM BARRY 0 7 I 15 I 2 0 0 9 Charge ( s) : 1 , 2 HEARING - DISPOSITIONAL CONFERENCE SCHEDULED FOR 10/06/2009 ® 10:30 in Room No. 7

07/15/2009 Charge(s): 1,2 Page 1 of 3 Printed on: 12/04/2009 ZACHARIAH WILKINSON CUMCD-CR-2009-04792 DOCKET RECORD TRIAL - JURY TRIAL SCHEDULED FOR 11/09/2009@ 8:30 in Room No. 11

NOTICE TO PARTIES/COUNSEL 09/15/2009 Charge(s): 1,2 HEARING - DISPOSITIONAL CONFERENCE NOTICE SENT ON 09/15/2009

09/29/2009 Party(s): ZACHARIAH WILKINSON ATTORNEY - RETAINED ENTERED ON 09/29/2009

Attorney: ROBERT ANDREWS 10/06/2009 Charge ( s) : 1, 2 HEARING - DISPOSITIONAL CONFERENCE HELD ON 10/06/2009 THOMAS D WARREN , JUSTICE Attorney: ROBERT ANDREWS DA: ANGELA CANNON Defendant Present in Court

SET FOR MOTION 10/06/2009 Charge(s): 1,2 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 10/06/2009

10/06/2009 Charge ( s) : 1, 2 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 10/29/2009 @ 1:00 in Room No. 7

NOTICE TO PARTIES/COUNSEL 10/06/2009 Charge(s): 1,2 HEARING - MOTION TO SUPPRESS NOTICE,SENT"ON 10/06/2009

10/20/2009 MOTION - MOTION TO CONTINUE FILED BY STATE ON 10/20/2009

10/22/2009 MOTION - MOTION TO CONTINUE GRANTED ON 10/22/2009 THOMAS D WARREN , JUSTICE COPY TO PARTIES/COUNSEL JH 10/22/2009 Charge (s): 1,2 HEARING - MOTION TO SUPPRESS CONTINUED ON 10/22/2009

10/22/2009 Charge(s): 1,2 TRIAL - JURY TRIAL CONTINUED ON 10/22/2009

10/22/2009 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 11/12/2009 @ 1:00 in Room No. 8

NOTICE TO PARTIES/COUNSEL 10/22/2009 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 10/22/2009

10/22/2009 Charge(s): 1,2 TRIAL- JURY TRIAL SCHEDULED FOR 12/07/2009@ 8:30 in Room No. 11

NOTICE TO PARTIES/COUNSEL 10/22/2009 Charge(s): 1,2 TRIAL - JURY TRIAL NOTICE SENT ON 10/22/2009

JH 11/09/2009 HEARING - MOTION TO SUPPRESS CONTINUED ON 11/09/2009 Page 2 of 3 Printed on: 12/04/2009 ZACHARIAH WILKINSON CUMCD-CR-2009-04792 DOCKET RECORD

11/09/2009 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 12/03/2009 @ 1:00 in Room No. 8

NOTICE TO PARTIES/COUNSEL 11/09/2009 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 11/09/2009

JH 12/04/2009 HEARING - MOTION TO SUPPRESS HELD ON 12/03/2009 ROLAND BEAUDOIN , JUDGE 12/04/2009 Charge (s): 1,2 MOTION - MOTION TO SUPPRESS DENIED ON 12/04/2009 ROLAND BEAUDOIN , JUDGE COPY TO PARTIES/COUNSEL 12/04/2009 ORDER - COURT ORDER FILED ON 12/04/2009 ROLAND BEAUDOIN , JUDGE MOTION TO SUPPRESS IS DENIED COPIES TO PARTIES MAILED 12-4- 09

A TRUE COPY ATTEST: Clerk

Page 3 of 3 Printed on: 12/04/2009