State of Maine v. Tolman

UNIFIED CRIMINAL COURT
mS PORTLAND
co Docket No. CDCR-19-2585

STATE OF MAINE
CUMBERLAND, ss.

STATE OF MAINE

ORDER ON DEFENDANT'S

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Vv. )
) MOTION TO SUPPRESS
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SCOTT TOLMAN
Defendant

A hearing was held on Defendant’s Motion to Suppress on December 20,
2019, Assistant District Attorney Grant Whelan appeared and argued on
behalf of the State and Attorney Adam Sherman appeared and argued on
behalf of Defendant. Defendant was not present. The court heard testimony
from Maine State Trooper David Lamieux, referred to herein as Officer Lamieux
since at the time of Defendant’s arrest he was an officer with the Portland
Police Department, and reviewed video footage from the camera in Officer
Lemieux’s cruiser.

Attorney Sherman informed the court at the onset of the hearing that
Defendant was seeking suppression of evidence on the ground that the field
sobriety testing was conducted without the requisite reasonable articulable
suspicion, and on the ground that Defendant’s arrest and the administration of
the breathalyzer were made without the requisite probable cause.

The court finds the following facts: On or about May 19, 2019, just
before 7:00 p.m.,, Officer Lamieux observed a Subaru which was traveling in
front of him cross the center line, swerve back and forth in the lane and move
into the bike lane. As the vehicle turned into the Riverton gas station, Officer
Lamieux noticed a defective brake light. At that point he effected a traffic stop,
the legality of which Defendant does not challenge. When Officer Lamieux
approached the vehicle, he observed that Defendant, who was alone in the car,
had glassy eyes. Officer Lamieux did not initially detect an odor of alcohol or
any slurred speech. Defendant was unable to provide his identification, as he

did not have his wallet with him. At that point Officer Lamieux asked
Defendant to exit the vehicle. Once Defendant had stepped out of the vehicle,
and was speaking with Officer Lemieux, he detected the odor of intoxicants
coming from Defendant. Defendant denied consuming any alcohol when asked
by the officer how much he had had to drink.

Officer Lamieux conducted three sobriety tests: HGN, walk and turn,
and the one-leg stand test. Among other indicia of intoxication, Defendant
swayed during the HGN test, and lost his balance during both the walk and
turn and one-leg stand tests. He was placed under arrest and taken to the
Cumberland County Jail, where he was given a breathalyzer test.

During his cross-examination of Officer Lamieux, Attorney Sherman
sought to demonstrate deficiencies with respect to the officer’s administration
of the HGN test, ultimately arguing to the court that because of inconsistencies
in the officer’s testimony, the officer’s credibility was in question.

The court, however, finds that the officer was a credible witness, and
finds that based on the totality of the circumstances Officer Lamieux had the
requisite reasonable articulable suspicion to conduct the field sobriety testing,
given his observations of Defendant’s erratic driving, glassy eyes, and failure to
have his license with him. Defendant’s inability to maintain his balance during
the stop afforded Officer Lamieux probable cause to believe that Defendant had
been driving while under the influence of alcohol. See, e.g., State v. King, 2009
ME 14, 7 6, 965 A.2d 52, 54 (“An officer may undertake field sobriety testing,
like any other investigatory stop, if at the time the officer has an articulable
suspicion, objectively reasonable in light of all the circumstances, that the
object of the search has committed or is about to commit a crime”); State v.
Webster, 2000 ME 115, | 7, 754 A.2d 976, 978 (“For there to be probable
cause to arrest someone for operating under the influence ... an officer “must
have probable cause to believe that the person’s senses are affected to the
slightest degree, or to any extent, by the alcohol that person has had to drink”).
Therefore, even assuming arguendo some irregularities with respect to the
administration of the HGN test, there was sufficient evidence in the totality of

the circumstances to give rise to Officer Lemieux’s probable cause to believe
that Defendant had been driving while impaired separate and apart from
Defendant’s performance on the HGN test. Cf. id. § 9 (suppression properly
denied where there was “sufficient evidence to support ... the probable cause
finding external to the field sobriety tests”).

It is accordingly hereby ORDERED that Defendant’s Motion to Suppress
is DENIED in its entirety.

DATED: January 15, 2020 Cla

Deborah P. Cashman
Judge, Unified Criminal Court

Entered on the Docket:_!- 41-2026
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