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State v. Mark Bolduc
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 255
Docket:	Ken-98-117
on Briefs:	October 28, 1998
Decided:	December 3, 1998	




	[¶1]  The State appeals pursuant to 15 M.R.S.A. § 2115-A (1980 &
Supp. 1997) from an order entered in the District Court (Augusta, Beliveau,
J.) suppressing evidence that Mark Bolduc operated a vehicle under the
influence of intoxicants in violation of 29-A M.R.S.A. § 2411 (1996).{1} 
Because there were articulable facts which warranted the investigatory stop
and there was probable cause to require that Bolduc take a blood-alcohol
test, we vacate the order.
	[¶2]  On September 26, 1997, at approximately 10:00 p.m., Deputy
Sheriff Eric Testerman of the Kennebec County Sheriff's Department
overheard a report from the state police that a motorist had seen a "cream-
colored king cab pickup" truck heading north on Interstate 95 at ninety
miles per hour.  According to the report, the truck was swerving from lane
to lane and had almost hit the guardrail.
	[¶3]  Upon hearing the report, Testerman positioned himself north of
where the truck was last seen on the Interstate.  Three minutes later,
Testerman spotted a cream-colored king cab pickup-truck heading north
along the Interstate at seventy four miles per hour.  Testerman followed the
truck, observed it pass two vehicles, and pulled it over two miles north of
where he had first seen it.
	[¶4]  When he asked the driver, Mark Bolduc, for his license and
registration, Testerman could smell alcohol on his breath.  Bolduc admitted
that he had consumed two beers with dinner at 7:30 p.m.  After checking
Bolduc's license and registration, Testerman asked him to perform two field
sobriety tests.  When Bolduc attempted to perform the "heel-to-toe" test, he
left spaces between steps and appeared to be unbalanced.  Next, Bolduc
counted backwards from 65 to 49.  Although he counted correctly,
Testerman observed that his speech was deliberate and slurred and that his
eyes were glossy.  Based on these observations, Testerman brought Bolduc to
the police station to administer a blood-alcohol test.  Bolduc filed a motion
to suppress, and, after a hearing, the court suppressed all evidence obtained
subsequent to the vehicle stop.
	[¶5]  An investigatory stop is valid when it is "supported by specific
and articulable facts which, taken as a whole and together with rational
inferences from those facts, reasonably warrant the police intrusion."  State
v. Taylor, 1997 ME 81, ¶ 9, 694 A.2d 907, 909 (quoting State v. Hill, 606
A.2d 793, 795 (Me. 1992)).  A civil violation "provides adequate specific and
articulable facts."  Id. (holding that officer's testimony that rear license plate
was unilluminated supported a reasonable suspicion).
	[¶6]  There were articulable facts which warranted an investigatory
stop of Bolduc's vehicle.  Before Testerman stopped Bolduc he had recorded
Bolduc driving seventy four miles per hour.  Driving over sixty five miles per
hour "on the Maine Turnpike or the Interstate Highway System" is a traffic
infraction.  29-A M.R.S.A. § 2074(3) (1996 & Supp. 1997).  Speeding was an
articulable fact which warranted an investigatory stop of Bolduc's car.  See
Taylor, 1997 ME 81, ¶ 9, 694 A.2d at 910.  Whether a reasonable police
officer would normally have stopped Bolduc for exceeding the speed limit by
nine miles per hour is not important to the analysis.  See Whren v. United
States, 517 U.S. 806, 813-16 (1996).
	[¶7]  Probable cause to arrest for purposes of requiring a blood-alcohol
test exists when "facts and circumstances of which the arresting officer has
reasonably trustworthy information would warrant an ordinarily prudent and
cautious police officer to believe the subject did commit or was committing
a crime."  State v. Boylan, 665 A.2d 1016, 1019 (Me. 1995).  The amount of
evidence necessary to establish probable cause "is less than the level of a fair
preponderance of the evidence."  State v. Cilley, 1998 ME 34, ¶ 11, 707
A.2d 79, 83. 
	[¶8]  "A person is guilty of [operating under the influence] if his
mental or physical faculties are impaired, however slightly or to any extent." 
Id.  In light of this standard, "probable cause to believe a defendant was
operating under the influence exists if there is reason to believe that his
mental or physical faculties are impaired by the consumption of alcohol."  Id.
(quoting State v. Bradley, 658 A.2d 236, 237 (Me. 1995)).
	[¶9]  The trial court clearly erred in finding that there was not
probable cause to believe that Bolduc was operating under the influence. 	In
the aggregate, the report that a truck with a similar style and color had
recently been driving erratically on the same road, the smell of alcohol on
Bolduc's breath, his admission that he had consumed two beers that
evening, his slurred speech and glossy eyes, and his poor performance on a
field sobriety test, warranted a reasonable officer to conclude that Bolduc
was driving while intoxicated.  See Boylan, 665 A.2d at 1019 (officer could
have formed reasonable belief that defendant was driving while intoxicated
where defendant's breath smelled of alcohol, his eyes were bloodshot and
glassy, and he failed field sobriety tests).
	The entry is:
					Judgment vacated.
Attorneys for State: David W. Crook, District Attorney Evert Fowle, Asst. Dist. Atty. 95 State Street Augusta, ME 04330 Attorney for defendant: Karen JM Mitchell, Esq. Law Offices of P.J. Perrino, Jr. P O Box 747 Augusta, ME 04332
FOOTNOTES******************************** {1} . Title 29-A M.R.S.A. § 2411 states, in part: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more.