The opinion
STATE OF MAINE SUPERIOR COURT
SOMERSET, SS. CIVIL ACTION
DOCKET NO CR;-08-381
tlEC'O & FILED t" (.1 ;..~ \ ..
Wendy M Robinson
STATE OF MAINE, '\1 c· ('
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Clerk of Court"
Somerset County
v.
ORDER
CHARLES CARPENTER
Defendant.
Hearing was held on the defendant's motion to suppress on November 13,2002.
The State was represented by counsel, Neil Mclean, Esq., while the defendant was
present and represented by counsel, Paul Sumberg, Esq. In his motion, the defendant
challenges the stop of the defendant beyond that which was necessary based on a
running light violation and asks the court to suppress evidence and statements.
The defendant, accompanied by his wife and two friends, was operating a
watercraft on lake Wesserunsett on the night of July 5,2008. Warden Miller,
accompanied by Warden Cross was on a boating enforcement detail on the lake that
clear and calm night and stopped the defendant's boat at approximately 9:45 because it
was missing a port running light and a stern light. The warden, using his spotlight,
pulled up to the starboard side of the boat and requested to see the boat's registration,
which was not present, and conducted a check of the boat's safety gear, determining
that the defendant had the requisite number of life jackets and appropriate safety gear
on board. Although the defendant was not displaying the stem light, he had one in
storage on board and retrieved it from storage and installed it in the warden's presence.
Warden Miller, who was originally a boat width away from the defendant moved to the
other side of his boat while discussing safety equipment with the defendant, close to
Warden Cross who was holding onto the side of defendant's boat.
From this location, which was within a few feet of the defendant and at times
within two feet, the warden noticed the odor of alcoholic beverages coming from the
defendant, noticed that his eyes were red and watery, and observed that the defendant
was unsteady on his feet while he was moving around on his boat. Warden Miller
asked the defendant if he had been drinking that night and the defendant said that he
had not been drinking and that they were coming from a friend's house. When asked
where he was headed, the defendant said he was going over by the cove, but pointed in
a direction that was 90 degrees from the cove, and then pointed in a direction that was
closer to the cove after the warden questioned the accuracy of the direction. Based on
these observations, Warden Miller thought the defendant may be under the influence
and decided to conduct some field sobriety tests. He boarded the defendant's boat so
that most of the tests could be conducted there. He conducted a horizontal gaze
nystagamous test and observed a lack of smooth pursuit when the defendant tried to
focus on a stimulus moving in front of his eyes, onset of eye twitching (nystagamous)
prior to 45 degrees and nystagamous at maximum deviation. According to the warden's
training, these clues confirmed that defendant was under the influence. He was asked
to recite a portion of the alphabet, which he accomplished successfully; and count from
one number to another, which he failed to do successfully because he stopped
prematurely.
Next, the warden wanted to conduct a one legged stand test, but didn't think it
could be done properly on the boat so he drove the defendant to shore in the Warden
Service's boat to conduct the test there, leaving the defendant's companions floating on
the lake in defendant's boat. While performing the test, the defendant put his foot down
more than four times, raised his hands for balance, did not count out loud as instructed,
and put his foot down prematurely at the end of the test. Based on all of these
observations, Warden Miller concluded that the defendant was impaired, placed him
under arrest and arranged for him to transported to take a blood alcohol test.
The defendant asserts that Warden Miller had no reason to conduct field sobriety
tests, arguing that he did not have a reasonable arguable suspicion that the defendant
was under the influence when he conducted the tests. Generally, in order to conduct
field sobriety tests in an operating under the influence context, an officer must have an
articulable suspicion, objectively reasonable in light of all the circumstances, that the
defendant has been operating while under the influence. l State v. Wood, 1995 ME 165,
662 A.2d 919. Defendant agrees that the initial stop due to the absence of required
running lights was appropriate, as was the warden's request to see life jackets. Before
conducting field sobriety tests in this case, Warden Miller had smelled the odor of
intoxicating liquor coming from the defendant's breath, noticed that his eyes were
watery and red and also noticed that the defendant had difficulty moving around in his
boat. He was able to make these observations from a distance of a few feet and, at times,
from a distance of two feet. Furthermore, the warden noticed that the defendant
pointed in the wrong direction in trying to point toward his camp when asked where he
was going, and when given a chance to point again, the defendant pointed in a
I It could be argued that because the warden entered the defendant's boat to conduct the tests, an
act that is a greater intrusion than conducting the tests in a public location, probable cause was
required to justify the entry. This has not been argued and the court has found no authority for
the position. A warden's other options under these circumstances would be to invite the
defendant onto the warden's boat, or go to a neutral site. Inviting the defendant onto the
warden's boat as a matter of course is ill advised because of safety issues that could arise during
the boarding process, and going to a neutral site in every situation could be impractical, present
safety issues of its own, and could be considered to be as intrusive as entering the defendant's
boat.
direction closer to his camp, but failed to point at it. Warden Miller also could have
believed that the defendant was not telling the truth in saying he had not been drinking,
because the defendant smelled of alcoholic beverage. Based on this information
available to the warden, the court finds that it was objectively reasonable for him to
suspect that the defendant had been operating a watercraft while under the influence.
Upon completion of the field sobriety tests, the court finds that Warden Miller
had probable cause to arrest the defendant for operating a watercraft under the
influence and to compel him to take a test to determine his blood alcohol content. This
conclusion is based on the observations supporting articulable suspicion, the horizontal
gaze nystagamous test clues, and the premature stop in completing the counting
backwards test. The fact that the defendant successfully recited a portion of the alphabet
as requested does not overcome the significance of the other test results and
observations. Before completing the tests, warden Miller determined that he needed to
be on dry land to administer the one-legged stand test acknowledging that it would not
be fair to conduct a balance test on a boat in the lake. He had the defendant enter his
boat and they went ashore and conducted this test in front of a camp. Although the
surface conditions for the test were not ideal, conditions were not so deficient as to
invalidate the results, especially when considers how poorly the defendant performed. 2
This result further confirmed the existence of probable cause.
2 Again, it could be argued that being taken to the shore is a greater intrusion than experienced
during the ordinary administration of field sobriety tests, and more than articulable suspicion is
required to support the intrusion. Without indicating its agreement with the proposition, the court
finds that information known by the officer by this time also satisfied a requirement of probable
cause if that standard were imposed.
Based on the foregoing, the Court finds that Warden Miller had a reasonable
articulable suspicion that the defendant was operating a watercraft while under the
influence that justified having the defendant submit to field sobriety tests. Upon
concluding the tests, the suspicion grew to the level of probable cause, supporting the
defendant's arrest. The defendant's motion to suppress is DENIED.
The clerk is directed to incorporate this Order in,to 2~~~---
January 23,2009 _'~~
William Anderson
Superior Court Justice
STATE OF MAINE SUPERIOR COURT
vs SOMERSET, ss.
CHARLES CARPENTER Docket No SKOSC-CR-2008-00381
PO BOX 2233
SKOWHEGAN ME 04976 DOCKET RECORD
DOB: 04/06/1954
Attorney: PAUL SUMBERG State's Attorney: JAMES MITCHELL
WRIGHT & MILLS PA
263 WATER STREET
PO BOX 9
SKOWHEGAN ME 04976-0009
RETAINED 07/08/2008
Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E)
Filing Date: 08/20/2008
Charge(s)
1 OPERATE WATERCRAFT UNDER INFLUENCE OVER 21 07/05/2008 MADISON
& .08%
Seq 10170 12 10701(1-A) (B) (2) Class D
MILLER / WAR
Docket Events:
09/19/2008 Charge (s): 1
TRANSFER - TRANSFER FOR JURY TRIAL EDI ON 09/19/2008 @ 18:01
TRANSFERRED CASE: SENDING COURT CASEID SKODCCR200801265
FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 08/20/2008
Charge(s): 1
HEARING - ARRAIGNMENT SCHEDULED FOR 08/27/2008 @ 8:30
NOTICE TO PARTIES/COUNSEL
Charge (s): 1
HEARING - ARRAIGNMENT WAIVED ON 07/08/2008
Party(s) : CHARLES CARPENTER
ATTORNEY - RETAINED ENTERED ON 07/08/2008
Attorney: PAUL SUMBERG
Charge (s): 1
PLEA - NOT GUILTY ENTERED BY COUNSEL ON 07/08/2008
TRIAL - BENCH SCHEDULED FOR 10/15/2008 @ 1:00
NOTICE TO PARTIES/COUNSEL
TRIAL - BENCH NOTICE SENT ON 08/25/2008
TRIAL - BENCH JTR SENT ON 08/25/2008
9/19/2008 TRIAL - BENCH NOT HELD ON 09/19/2008
Page 1 of 3 Printed on: 02/06/
CHARLES CARPENTER
SKOSC-CR-2008-00381
DOCKET RECORD
MOTION - MOTION TO COMPEL FILED BY DEFENDANT ON 08/27/2008
HEARING - MOTION TO COMPEL SCHEDULED FOR 09/24/2008 @ 1:00
NOTICE TO PARTIES/COUNSEL
HEARING - MOTION TO COMPEL CONTINUED ON 09/09/2008
HEARING - MOTION TO COMPEL NOTICE SENT ON 08/29/2008
MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 09/03/2008
MOTION - MOTION TO CONTINUE GRANTED ON 09/08/2008
CHARLES C LAVERDIERE , JUDGE
COPY TO PARTIES/COUNSEL
HEARING - MOTION TO COMPEL SCHEDULED FOR 10/15/2008 @ 1:00
NOTICE TO PARTIES/COUNSEL
HEARING - MOTION TO COMPEL NOT HELD ON 09/19/2008
HEARING - MOTION TO COMPEL NOTICE SENT ON 09/09/2008
Charge(s): 1
TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 09/11/2008
MOTION - MOTION TO SUPPRESS STATEMENT FILED BY DEFENDANT ON 09/16/2008
MOTION TO SUPPRESS STATEMENTS, STOP, FIELD SOBRIETY TESTS AND INTOXILYZER RESULT.
Charge(s}: 1
FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 09/19/2008
SKOSC
09/22/2008 HEARING - MOTION TO SUPPRESS STATEMENT SCHEDULED FOR 11/05/2008 @ 8:30
NOTICE TO PARTIES/COUNSEL
09/22/2008 TRIAL - DOCKET CALL SCHEDULED FOR 12/04/2008 @ 9:00
09/22/2008 HEARING - MOTION TO COMPEL SCHEDULED FOR 11/05/2008 @ 8:30
NOTICE TO PARTIES/COUNSEL
11/05/2008 HEARING - MOTION TO SUPPRESS STATEMENT CONTINUED ON 11/05/2008
11/05/2008 HEARING - MOTION TO COMPEL CONTINUED ON 11/05/2008
11/05/2008 HEARING - MOTION TO COMPEL SCHEDULED FOR 12/03/2008 @ 8:30
NOTICE TO PARTIES/COUNSEL
11/05/2008 HEARING - MOTION TO SUPPRESS STATEMENT SCHEDULED FOR 12/03/2008 @ 8:30
NOTICE TO PARTIES/COUNSEL
12/05/2008 TRIAL DOCKET CALL CONTINUED ON 12/04/2008
WILLIAM R ANDERSON , JUSTICE
12/05/2008 TRIAL - DOCKET CALL SCHEDULED FOR 02/02/2009 @ 9:30
Page 2 of 3 Printed on: 02/06/2009
CHARLES CARPENTER
SKOSC-CR-2008-00381
DOCKET RECORD
12/18/2008 HEARING - MOTION TO SUPPRESS STATEMENT CONTINUED ON 12/03/2008
12/18/2008 HEARING - MOTION TO SUPPRESS STATEMENT SCHEDULED FOR 12/23/2008 @ 8:30
NOTICE TO PARTIES/COUNSEL
12/24/2008 HEARING MOTION TO SUPPRESS STATEMENT HELD ON 12/23/2008
WILLIAM R ANDERSON , JUSTICE
Attorney: PAUL SUMBERG
DA: NEIL MCLEAN
Defendant Present in Court
ER TAPE #284, INDEX 537 - 7556 AND TAPE #289, INDEX 56 - 1152
ARGUMENT HAD. DEF'S EXHS 2, 3,
& 10, AWO. DEF'S EXHS SA THRU 5G, OFFERED, OBJECTED TO, NOT ADMITTED. DEF'S EXH SA THRU
5G, RE-OFFERED, OBJECTED TO, AOO. ST AND DEF BOTH CLOSE. MATTER TAKEN UNDER ADVISEMENT.
01/28/2009 MOTION - MOTION TO SUPPRESS STATEMENT DENIED ON 01/23/2009
WILLIAM R ANDERSON , JUSTICE
COPY TO PARTIES/COUNSEL
01/28/2009 ORDER - COURT ORDER FILED ON 01/28/2009
WILLIAM R ANDERSON , JUSTICE
ORDER - RE MOTION TO SUPPRESS HELD 12/23/2008
02/02/2009 HEARING - MOTION TO COMPEL NOT HELD ON 12/03/2008
02/02/2009 HEARING - MOTION TO COMPEL SCHEDULED FOR 05/06/2009 @ 8:30
NOTICE TO PARTIES/COUNSEL
02/02/2009 TRIAL - DOCKET CALL CONTINUED ON 02/02/2009
JOSEPH M JABAR , JUSTICE
Attorney: PAUL SUMBERG
DA: BRENT DAVIS
ELECTRONIC RECORDING TAPE #296
02/02/2009 TRIAL - DOCKET CALL SCHEDULED FOR 05/04/2009 @ 8:30
A TRUE COPY
ATTEST:
Clerk
Page 3 of 3 Printed on: 02/06/2009