The 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
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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
2
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
3
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