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STATE v. MOULTON12/10/1997
[ 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). 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 judgment.
I.
[ 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, each of which she performed
[ 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.
II.
[ 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.
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