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State v. Moulton
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions				
Decision:	1997 ME   228
Docket:	Wal-96-683
on Briefs:	September 16, 1997
Decided:	December 10, 1997




	[¶1]  Shirley Moulton appeals from the judgment entered in the
Superior Court (Waldo County, Kravchuk, J.) following her conviction for
operating under the influence (Class D) in violation of 29-A M.R.S.A. § 2411
(1996 & Supp. 1996).{1}  On appeal Moulton contends that the District Court
(Belfast, Staples, J.) erred in denying her motion to suppress the evidence
derived from an investigatory stop, and that the Superior Court erred in
admitting testimony at trial concerning the horizontal gaze nystagmus test
administered by the arresting officer during the stop.  We affirm the
	[¶2]  At 12:30 a.m. on September 16, 1995, while on routine patrol in
a marked police cruiser in Belfast, State Trooper Thomas Ballard observed a
car with its motor running and its lights on stopped in the roadway in front
of the Legion Hall.  Noting that the car was blocking the travel lane and was
next to a "no parking" sign, Ballard pulled his cruiser alongside the car
without activating the cruiser's blue lights.  He looked through his passenger
side window into the stopped car, where he observed Shirley Moulton in the
driver's seat and a male passenger kneeling on the front seat and leaning
over Moulton.  She looked at Ballard with a "confused or dazed" expression.      
	[¶3]  Ballard stepped out of his cruiser, approached the stopped car,
and asked Moulton if her car was disabled and whether she needed help. 
Moulton responded that she was okay.  Ballard immediately smelled a strong
odor of alcohol coming from inside the car, and observed that Moulton's
speech was slurred and that her eyes were glassy and red.  He then asked
for her license and registration and requested that she step out of the car. 
After repositioning his cruiser and activating its blue lights, Ballard asked
Moulton to perform four field sobriety tests, including the horizontal gaze
nystagmus (HGN) test,{2} each of which she performed poorly.  On the basis of
these field sobriety tests and his other observations of Moulton, Ballard
arrested Moulton for operating under the influence.
	[¶4]  After entering a not guilty plea at her arraignment, Moulton filed
a motion to suppress all evidence derived from the stop, arguing in part that
Ballard lacked a reasonable suspicion to justify the stop.  The court denied
the motion, finding that no seizure had occurred until Ballard requested
Moulton to produce her license and registration, at which time he did have
a reasonable suspicion to justify the stop.  After transferring her case to the
Superior Court for a jury trial, Moulton objected at trial to the admission of
testimony by Ballard concerning the HGN test, arguing that its reliability had
not been established.  The court overruled her objection, finding that 29-A
M.R.S.A. § 2525 (1996) authorized admission of Ballard's HGN testimony,
notwithstanding the absence of any showing of reliability.  After establishing
that he was properly certified in drug recognition pursuant to statute,
Ballard testified about Moulton's poor performance on the HGN test.
	[¶5]  The court entered a judgment on a jury verdict finding Moulton
guilty of operating under the influence in violation of 29-A M.R.S.A. § 2411,
and this appeal followed. 
	[¶6]  Moulton argues that the court erred as a matter of law in
determining that she was not seized at the time Ballard pulled his cruiser
alongside her car.  We will not disturb the court's decision unless we find
errors of law or clearly erroneous findings of fact.  See State v. Stade, 683
A.2d 164, 165 (Me. 1996).  In this case, neither party disputes the court's
factual findings, and we review the court's legal conclusion independently.
	[¶7]  An encounter between a police officer and a citizen implicates
the Fourth Amendment only if the officer "seizes" the citizen.  See State v.
LaPlante, 534 A.2d 959, 962 (Me. 1987)(citing Florida v. Royer, 460 U.S.
491, 497-98 (1983)).   We have held that a "seizure" of the person occurs  
when "'the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen' such that he is not free to walk
away."  State v. Preble, 430 A.2d 553, 555 (Me. 1981) (quoting United
States v. Viegas, 639 F.2d 42, 44 (1st Cir. 1981)); see State v. Bleyl, 435
A.2d 1349, 1356 (Me. 1981); see also United States v. Mendenhall, 446 U.S.
544, 554 (1980) (a seizure occurs when, under a totality of the
circumstances, a reasonable person would believe she is not free to leave).  
	[¶8]  We recognize, however, that "not all personal intercourse
between policemen and citizens" is a seizure within the meaning of the
Fourth Amendment.  See Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). 
Although the place where the intrusion occurs is not the controlling
determinant of the seizure question, see State v. Griffin, 459 A.2d 1086,
1089 (Me. 1983), police officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another public place, or
asking her if she is willing to answer some questions.  See LaPlante, 534
A.2d at 962.  Compare id. (finding no seizure where officer stopped to
investigate a lone car in the breakdown lane of a highway) with State v.
Chapman, 495 A.2d 314, 316 (Me. 1985) (finding seizure where officer
positioned his cruiser so as to prevent any movement of the defendant's
truck); see generally 4 W. LaFave, Search & Seizure § 9.3(a) n.45 (1996 &
Supp. 1998) (collecting cases that hold there is no seizure when an officer
merely walks up to a person seated in a vehicle located in a public place and
puts a question to her).  
	[9]  Applying these principles to the uncontroverted facts of this
case, we conclude that the court did not err in its determination of when
the seizure occurred.  Upon observing a lone car with its lights on and its
engine running stopped in the travel lane after midnight, Ballard placed his
cruiser alongside it and approached the driver to ask if she needed
assistance.  He did not restrict Moulton's ability to leave by blocking her car,
nor did he signal his authority over her by activating his cruiser's blue lights. 
Ballard's status as a police officer did not automatically transform his
roadside inquiry into a "show of authority" or a "restraint of liberty"
implicating constitutional protections.  Under these circumstances, we
agree that no seizure occurred until Ballard requested Moulton to produce
her license and registration.{3}                
	[10]  Finally, we conclude that the court did not err in finding that
Ballard's investigatory detention of Moulton for suspicion of operating under
the influence was justified.  In order to justify an investigatory detention
short of formal arrest, a law enforcement officer must act on the basis of
"specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion."  Griffin, 459 A.2d at
1089 (quoting Terry, 392 U.S. at 21).  At the time Ballard asked for
Moulton's license and registration, he had noted her slurred speech, red
and glassy eyes, and the odor of alcohol on her breath.  These observations
gave Ballard a reasonable suspicion of criminal conduct justifying the
detention, and the court did not err in denying Moulton's motion to
	[¶11]  Moulton next contends that the Superior Court erred in
allowing Ballard to testify about the horizontal gaze nystagmus test he
administered during the stop.  In overruling Moulton's objection to the
admission of the HGN testimony, the court relied expressly and exclusively
on 29-A M.R.S.A. § 2525 (1996), and made no independent findings
regarding the test's reliability. Entitled "Drug Impairment Assessment,"
section 2525 provides in pertinent part:

1.  Submission to test required.  If a drug recognition
technician{4} has probable cause to believe that a person is under
the influence of a specific category of drug, a combination of
specific categories of drugs or a combination of alcohol and one
or more specific categories of drugs, that person must submit to
a blood or urine test selected by the drug recognition technician
to confirm that person's category of drug use and determine
drug concentration.

2.  Admissibility of evidence.  If a law enforcement officer
certified as a drug recognition technician . . . conducts a drug
impairment assessment, the officer's testimony about that
assessment is admissible in court as evidence of operating under
the influence of intoxicants.  Failure to comply with any
provision of this section does not, by itself, result in the
exclusion of test results, unless the evidence is determined to be
not sufficiently reliable.  

Id.  Thus, section 2525(2) permits a certified drug recognition technician to
testify about a "drug impairment assessment" as evidence of "operating
under the influence of intoxicants."{5}    	
	[¶12]  In opposing Moulton's objection to the admission of the HGN
testimony, the State argued that Ballard was a certified drug recognition
technician; that his HGN test constituted a valid "drug impairment
assessment" within the meaning of subsection (1); and that his testimony
concerning the HGN test was admissible without regard to reliability as
evidence of operating under the influence of intoxicants pursuant to
subsection (2).  The court agreed with this interpretation of section 2525.
	[¶13]  Moulton argues, however, that subsection (1)'s mandatory
testing provision is triggered only if a certified drug recognition officer has
probable cause to believe that a person is under the influence of a drug or
drugs, not alcohol alone.  The statutory definition of "drugs," she argues,
does not include alcohol.   Based on her conclusion that alcohol alone is not
a type of intoxicant contemplated by subsection (1)'s mandatory testing
provision, she contends that subsection (2)'s admissibility provision is
inapplicable to her case, in which there was no suspicion of drug use.   
	[¶14]  In construing a statute, we first look to the plain meaning of the
statutory language to give effect to legislative intent; only if the meaning of
the statute is unclear will we examine other indicia of legislative intent.  See
Pelletier v. Fort Kent Golf Club, 662 A.2d 220, 223 (Me. 1995).   In this
case, section 2525(2)'s reference to a "drug impairment assessment" is
ambiguous.  That term could include only the "blood and urine tests"
referred to in subsection (1), or it could have a more general meaning (i.e.,
one that would encompass an HGN test).  The reference to "drugs" is also
ambiguous.  29-A M.R.S.A. § 2401(4)  defines "drugs" as follows:

"Drugs" means scheduled drugs as defined under Title 17-A,
section 1101.  The term "drugs" includes any natural or
artificial chemical substance that, when taken into the human
body, can impair the ability of the person to safely operate a
motor vehicle.

The second sentence of this definition was added by amendment in 1995. 
See  P.L. 1995, ch. 145, § 1.  Although alcohol is not a scheduled drug
within the meaning of 17-A M.R.S.A. § 1101, it arguably could fall within the
second sentence's definition of a "drug."  Thus, there is ambiguity as to
whether alcohol is within section 2401(4)'s definition of drugs. 
Accordingly, we must look to other indicia of legislative intent.
	[¶15]  In 1995 the Legislature amended section 2525 to eliminate a
"sunset provision" repealing the statute in June 1995.  See P.L. 1995, ch.
145, § 2.  The preamble of the amendment's L.D. states in pertinent part: 
"Whereas, the drug recognition technician program results in the
prosecution of persons who operate motor vehicles while under the
influence of drugs other than alcohol;  and whereas failure to prosecute this
type of offender may result in a greater number of operating-under-the-
influence motor vehicle accidents; . . . [the sunset provision is hereby
repealed]."  L.D. 913 (117th Legis. 1995) (emphasis added).  The L.D.'s
Statement of Fact contains similar language:  "Drug recognition technicians
are law enforcement officers specifically trained to assess whether a person
was under the influence of a drug other than alcohol . . . ."  Id. (emphasis
added).  This legislative history provides strong support for Moulton's
position that section 2525's reference to "drugs" does not encompass
	[¶16]  Principles of statutory construction also support this
conclusion.   Section 2525 uses the conjunctive "and" to describe the
mandatory testing provision's applicability to alcohol:  "[A] specific category
of drug, a combination of specific categories of drugs, or a combination of
alcohol and one or more specific categories of drugs . . . ."  This language
cannot be dismissed as mere surplusage.  See Struck v. Hackett, 668 A.2d
411, 417 (Me. 1995) (nothing in statute may be treated as surplusage if a
reasonable construction supplying meaning and force is otherwise possible). 
If alcohol were encompassed in the word drugs, it would be unnecessary and
redundant to include the word "alcohol" in section 2525.   Indeed, the
Legislature's express inclusion of the words "alcohol" and "specific
categories of drugs" indicates that the Legislature intended those words to
mean different things.{6}  Accordingly, we conclude that the Superior Court
erred in predicating its admission of Ballard's HGN testimony about alcohol
use on 29-A M.R.S.A. § 2525 (2).    
	[¶17]  Notwithstanding the court's mistaken rationale, however, the
HGN testimony was properly admitted.  Although the court made no
independent finding of the reliability of the HGN test, we held recently that
we would take judicial notice of the reliability of such tests in making
determinations of probable cause to arrest and for purposes of establishing
guilt in operating under the influence cases.{7}  State v. Taylor, 1997 ME 81,
¶ 10, 694 A.2d 907, 910.  We may take judicial notice on appeal.  See id; see
also M.R. Evid. 201(f).{8}  
	[¶18]  We stated in Taylor that "the results of the HGN test should be
admissible if a proper foundation is laid for their introduction in evidence.  A
proper foundation shall consist of evidence that the officer or administrator
of the HGN test is trained in the procedure and the test was properly
administered."   Taylor, 1997 ME 81, ¶ 12, 694 A.2d at 911-12.  In this
case, Ballard testified to these foundational requisites.  Accordingly, we take
judicial notice of the test's reliability.  See id.  The court did not err in
admitting Ballard's HGN testimony.  
	The entry is:
			Judgment affirmed.

Attorneys for State: Geoffrey Rushlau, District Attorney Leane Zainea, Asst. Dist. Atty. 137 Church Street Belfast, ME 04915 Attorney for defendant: William L. Dawson, Jr., Esq. Glass & Dawson, P.A. P O Box 302 Belfast, ME 04915-0302
FOOTNOTES******************************** {1} 29-A M.R.S.A. § 2411 (1996 & Supp. 1996) provides in pertinent 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. {2} To administer an HGN test, an officer uses