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State v. Daniel Webster III
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 115
Docket:	Ken-00-13	
on Briefs:	May 25, 2000
Decided:	June 21, 2000




	[¶1]  Daniel Webster III appeals the judgment of the Superior Court
(Kennebec County, Marden, J.) affirming his conviction by the District Court
(Augusta, Anderson, J.) on the charge of operating under the influence, 29-A
M.R.S.A. § 2411 (1996 & Supp. 1999), entered on a conditional guilty plea, 
M.R. Crim. P. 11(a)(2).  On appeal Webster challenges the denial of his
motion to suppress by the District Court (Augusta, Beaudoin, J.).  He asserts
that there was insufficient evidence of probable cause to justify his arrest
and transport to the Augusta Police Station for purposes of administration of
a blood alcohol test, and he asserts that his statements could not be used
against him because he was not given Miranda{1} warnings.  Because the
evidence and findings of the District Court based on the evidence are
sufficient to support the court's determinations of the probable cause and
Miranda issues, we affirm.
	[¶2]  Shortly after 1 a.m. on the morning of September 7, 1996, an
Augusta police officer observed Webster execute an improper u-turn by
driving in an improper direction around a large traffic island.  The officer
testified and the District Court found that after stopping Webster, the officer
smelled a strong odor of alcohol coming from Webster.  When asked if he
had had anything to drink, Webster responded that he had consumed one
drink four hours earlier, at approximately 9 p.m.  
	[¶3]  At the hearing on the motion to suppress, the officer testified
that after asking Webster to exit his vehicle, the officer observed some
unsteadiness.  The officer also testified that he had Webster perform three
field sobriety tests and that the officer believed that Webster had passed two
of these tests but did not pass one of the tests.  Based on this encounter, the
officer arrested Webster and took him to the Augusta Police Station where
an alcohol breath test was performed.  The test indicated a blood alcohol
content of 0.10.  Webster's motion sought to suppress the results of the test.  
	[¶4]  After hearing the evidence, the court determined that the
officer's testimony regarding Webster's unsteadiness and failure of field
sobriety tests was "inaccurate" and stated that, in its view, Webster had
passed each of the field sobriety tests and demonstrated no unsteadiness. 
The record is unclear as to whether the court also determined that the
officer reasonably believed that Webster had not passed a field sobriety test,
even if the officer's belief was inaccurate.  
	[¶5]  The District Court then denied the motion to suppress, stating
that in its view sufficient probable cause to arrest had been established by
the combination of Webster's improper driving, the strong odor of alcohol
on his breath, and his statement that he had only had one drink four hours
earlier, which could have been disbelieved as made to cover-up a more
recent and greater consumption of alcohol.
	[¶6]  Following denial of the motion to suppress, Webster entered a
conditional plea and appealed his conviction first to the Superior Court and
then to this Court.    
	[¶7]  The probable cause standard for requiring a person to take a
blood alcohol test has a very low threshold.  A person is guilty of operating
under the influence if his or her senses are "impaired however slightly" or
"to any extent" by the alcohol that person has had to drink.  See State v.
Worster, 611 A.2d 979, 981 (Me. 1992).  For there to be probable cause to
arrest someone for operating under the influence, therefore, 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.  A reasonable suspicion to support probable cause can exist
independent of any evidence of actual impaired driving.  See State v.
Eastman, 1997 ME 39, ¶ 9, 691 A.2d 179, 182; State v. Wood, 662 A.2d
919, 920-921 (Me. 1995).
	[¶8]  In this case, the officer had observed a driving maneuver that
suggested impaired judgment.  The officer smelled a strong odor of alcohol
on Webster's breath, and the officer had heard Webster make a facially
incredible statement that the officer could have believed was intended to
cover-up recent, more substantial consumption of alcoholic beverages.  With
those observations made, the officer may have been regarded as careless had
he allowed Webster to go on his way without further inquiry to determine
the state of his sobriety and the risk he may have posed to himself and
others on the highway.  
	[¶9]  Considering the probable cause threshold for administering a
blood alcohol test, this combination of evidence was more than sufficient to
establish probable cause.  With this evidence, probable cause could be found
without regard to Webster's performance on the field sobriety tests.  While
performance on field sobriety tests is relevant to determinations of both
probable cause and ultimate guilt or innocence, such performance on the
field sobriety tests does not control either issue.  There is sufficient
evidence to support the court's probable cause finding external to the field
sobriety tests.  Accordingly, the court committed no error in denying
Webster's motion to suppress.  
	[¶10]  Further, the court appropriately allowed consideration of
statements made by Webster both before and after he was given Miranda
warnings.  See State v. Swett, 1998 ME 76, ¶ 4, 709 A.2d 729, 730.
	The entry is:
			Judgment affirmed.

Attorneys for State: David W. Crook, District Attorney Brad Grant, Asst. Dist. Atty. 95 State Street Augusta, ME 04330 Attorney for defendant: Karen M. Burke, Esq. P O Box 316 Winthrop, ME 04364
FOOTNOTES******************************** {1} . Miranda v. Arizona, 384 U.S. 436 (1966).