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State v. Sylvain1/14/2003
ur decision in Nelson, 638 A.2d 720, and concluded that it was not reasonable to suspect operation under the influence simply because the defendant had admitted drinking and had bloodshot eyes.
[ 16] The court concluded from Nelson that the mere admission to previously drinking alcohol by a person operating a vehicle is insufficient to give a law enforcement official authority to request a further brief intrusion into the driver's life through the performance of field sobriety tests. [FN3] This conclusion is incorrect and arises from an intermingling of the separate concepts of legality and articulable suspicion. While it may not be a crime solely to consume an alcoholic beverage and then operate a motor vehicle, it is a crime to operate while impaired. Thus, the officer in a roadside stop is not focused on whether the operator was legally entitled to consume alcohol before operating the vehicle, but whether that consumption has resulted in any level of impairment. An officer deciding whether or not to ask an operator to demonstrate that the operator is not impaired in any way by the consumption of alcohol or drugs need only entertain a reasonable suspicion that impairment may exist.
FN3. Key to the court's decision to suppress the facts in this case was its determination based on its reading of Nelson that "the law in Maine is that it is not illegal to consume alcohol and drive." We understand the trial court to mean that it is not illegal to drink and then
drive. If the trial court read Nelson to hold that it is not illegal to consume alcohol while operating a motor vehicle, that reading is inaccurate. Prior to Nelson, the Legislature acknowledged the danger to the public associated with operating under the influence and made it illegal to consume alcohol while operating a motor vehicle. 29 M.R.S.A. § 2112 (repealed 1999). Since Nelson, the Legislature not only made illegal the consumption of alcohol in an automobile, but also the mere possession of an open alcohol container in an automobile on a public way. 29-A M.R.S.A. § 2112-A(2) (Supp.2002).
[ 17] A reasonable suspicion is not the same as proof by a preponderance of the evidence or even probable cause to believe that impairment exists. See State v. Webster, 2000 ME 115, 7, 754 A.2d 976, 978; State v. Lux, 1999 ME 136, 9-15, 740 A.2d 556, 558-60. This standard for the brief roadside intrusion balances the driver's right to be free from excessive restraint by the State against the public's right not to be placed at risk by the criminal action of impaired driving. Field sobriety testing provides the officer with sufficient information to determine whether it is safe for the motorist to continue driving.
*989 [ 18] When, as here, an officer has observed bloodshot eyes and has heard an admission from a driver that the driver has had two beers, it is objectively reasonable for that officer to entertain a suspicion that the driver may be impaired by the alcohol. Subjecting the driver to field sobriety tests following that admission does not offend the Fourth Amendment. To the extent that Nelson was read by the motion court otherwise, we clarify the holding in Nelson.
[ 19] On the facts found by the court, applying the law de novo to those facts, we conclude that the motion to suppress must be denied.
The entry is:
Order of suppression vacated. Case remanded for entry of an order denying the motion to suppress.
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