State of Maine v. Robbins

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STATE OF MAINE SUPERIOR COURT CRIMINAL ACTION Docke.t. No. CR-~7-~026V CUMBERLAND, ss. Ij)SiY C LtfYl - ) 1/~l/Ql.DO·? STATE OF MAINE, v. DECISION PETER E. ROBBINS, ·'·I\IALD L. GARBREC I AW LIBRARY Defendant. FINDINGS 1. On May 14, 2007, in Falmouth, Officer Kevin Conger stopped Peter Robbins for operating a motor vehicle with one headlight out. 2. In the short time Officer Conger observed Mr. Robbins operate his motor vehicle, Officer Conger observed no erratic operation. 3. When Officer Conger turned on his blue lights, Mr. Robbins pulled over and parked appropriately. 4. Officer Conger asked Mr. Robbins to produce his license, registration and insurance. Mr. Robbins did so without difficulty. 5. Officer Conger smelled alcohol and asked Mr. Robbins if he had been drinking. Mr. Robbins said he had a couple glasses of wine. 6. Officer Conger asked Mr. Robbins to say the alphabet from G to W. Mr. Robbins said the alphabet without hesitation from G to Y. 7. Officer Conger asked Mr. Robbins to do a finger dexterity test. Mr. Robbins did so without difficulty. 8. Officer Conger asked Mr. Robbins to step out of his car and walk to the rear of his car. Mr. Robbins did so without difficulty. 9. Officer Conger asked Mr. Robbins to perform the horizontal gaze mystagmus test. He instructed Mr. Robbins not to move his head during the test. The test produced no clues indicating Mr. Robbins was under the influence but Mr. Robbins moved his head at first and had to be reinstructed. 10. Officer Conger asked Mr. Robbins to do the one-legged stand. On direct, Officer Conger said that Mr. Robbins did this test reasonably well. On cross, Officer Conger said Mr. Robbins put his foot down three times, but otherwise did the test well. 11. Officer Conger asked Mr. Robbins to do the heel to toe test. As instructed, Mr. Robbins placed his toe to his hell on every step out and every step back. However, instead of making an incremental tum as instructed, Mr. Robbins made an about-face type turn. He did this type of turn well, but it was not an incremental turn. 12. Mr. Robbins never slurred his speech from beginning to end. Nor was there any evidence of bloodshot or glassy eyes. Nor was there any evidence of swaying, except possibly during the one-legged stand. DISCUSSION The testimony produced considerable evidence that Mr. Robbins was not under the influence and very little evidence that he was. On two or three occasions, Mr. Robbins did not immediately follow Officer Conger's instructions. That may be because Officer Conger has such a quiet voice that it is very difficult to hear him. The quantity of evidence indicating impairment in this case is slight. The quality of evidence indicating impairment is not good either because of Officer Conger's speech IdiffiCUlties. It is possible that Officer Conger spoke more clearly at the scene of the stop 2 but there is no evidence of that. The burden is on the State. I conclude that the State has not met its burden of proving probable cause to arrest for operating under the influence. The clerk will make the following entry on the docket: Defendant Peter Robbins' motion to suppress is granted. All evidence secured by the State subsequent to Mr. Robbins' arrest is suppressed. DATED: November I', 2007 William S. Brodrick Active Retired Justice, Superior Court 3 STATE OF MAINE SUPERIOR COURT CUMBERLAND, s s . Docket No PORSC-CR-2007-02026 VB PETER E ROBBINS 179 FORESIDE ROAD CUMBERLAND ME 04021 DOCKET RECORD DOB: 02/21/1957 Attorney: PETER RODWAY RODWAY & HORODYSKI 30 CITY CENTER, 2ND FLOOR PO BOX 874 PORTLAND ME 04104 RETAINED OS/21/2007 State's Attorney: STEPHANIE ANDERSON Filing Document: CRIMINAL COMPLAINT Filing Date: 07/02/2007 Major Case Type: MISDEMEANOR (CLASS D,E) Charge(s) 1 OPERATING UNDER THE INFLUENCE Seq 9878 29-A 2411(1-A) (A) CONGER / FAL 05/14/2007 FALMOUTH Class D Docket Events: 07/25/2007 Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL EDI ON 07/25/2007 @ 18:01 TRANSFERRED CASE: SENDING COURT CASEID PORDCCR200705303 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 07/02/2007 JAMES TURCOTTE, ASSISTANT CLERK Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 07/17/2007 @ 8:30 in Room No. 1 NOTICE TO PARTIES/COUNSEL Charge(s): 1 HEARING - ARRAIGNMENT WAIVED ON 07/17/2007 847 409 Party(s) : PETER E ROBBINS ATTORNEY - RETAINED ENTERED ON OS/21/2007 Attorney: PETER RODWAY Charge (s): 1 PLEA - NOT GUILTY ENTERED BY COUNSEL ON 07/17/2007 @ 8:30 in Room No. 409 Charge (s): 1 TRIAL - BENCH SCHEDULED FOR 08/13/2007 @ 10:30 in Room No. 1 1 NOTICE TO PARTIES/COUNSEL 409 Charge(s): 1 TRIAL - BENCH NOT HELD ON 07/24/2007 Page 1 of 3 Printed on: 11/30/2007 PETER E ROBBINS PORSC-CR-2007-02026 DOCKET Charge (s): 1 TRIAL - BENCH NOTICE SENT ON 07/18/2007 409 Charge (s): 1 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 07/18/2007 409 OTHER FILING - REQUEST FOR CHEMIST AT TRIAL FILED ON 07/18/2007 409 Charge(s): 1 TRANSFER - TRANSFER FOR JURY TRIAL REQUESTED ON 07/18/2007 409 Charge(s): 1 FINDING - TRANSFER FOR JURY TRIAL TRANSFERRED ON 07/25/2007 DEBRA SOUBBLE, ADMINISTRATIVE CLERK PORSC 07/31/2007 Charge(s): 1 TRANSFER - TRANSFER FOR JURy TRIAL RECVD BY COURT ON 07/25/2007 BETHANY RODERIGUE, ASSISTANT CLERK-E DOCKET ENTRIES RECEIVED FROM 9TH DISTRICT COURT (CR07-5303) NO APPEARANCE BOND FILED 08/01/2007 Charge(s): 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 10/04/2007 @ 11:00 in Room No. WILLIAM BRODRICK, JUSTICE NOTICE TO PARTIES/COUNSEL 07 Charge(s): 1 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 08/01/2007 10/09/2007 Charge(s): 1 HEARING - MOTION TO SUPPRESS HELD ON 10/04/2007 WILLIAM BRODRICK, JUSTICE Attorney: PETER RODWAY DA; MICHAEL MADIGAN TAPE #2764 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 10/25/2007 @ 1:00 in Room No. 7 7 NOTICE TO PARTIES/COUNSEL HEARING - MOTION TO SUPPRESS NOTICE SENT ON 10/09/2007 JOANN HEBERT 2007 HEARING - MOTION TO SUPPRESS HELD ON 10/25/2007 WILLIAM BRODRICK, JUSTICE Attorney: PETER RODWAY DA: TRACY BARDWELL Reporter: PENNY PHILBRICK-CARVER Defendant Present in Court 10/26/2007 Charge(s): 1 TRIAL - JURY TRIAL SCHEDULED FOR 12/10/2007 @ 8:30 in Room No. Page 2 of 3 11 Printed on: 11/30/2007 PETER E ROBBINS PORSC-CR-2007-02026 DOCKET RECORD NOTICE TO PARTIES/COUNSEL 10/26/2007 Charge(s): 1 TRIAL - JURy TRIAL NOTICE SENT ON 10/26/2007 JOANN HEBERT 10/26/2007 Charge(s): 1 MOTION - MOTION TO SUPPRESS UNDER ADVISEMENT ON 10/25/2007 WILLIAM BRODRICK I JUSTICE JOANN HEBERT 11/30/2007 Charge(s): 1 MOTION - MOTION TO SUPPRESS GRANTED ON 11/19/2007 WILLIAM BRODRICK, JUSTICE COpy TO PARTIES/COUNSEL A TRUE COpy ATTEST: ! i t r TSK .' I 'Clerk page 3 of 3 Printed on: 11/30/2007

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