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STATE v. BENTO12/26/1991
prior time (i.e., at the time of arrest or the time the test was conducted). Given these two factors, we hold that the court's interpretation of section 1312(11)(D) was error.
II.
The misinterpretation of the statute does not end the matter, however, because of an inconsistency in the court's findings i) that no probable cause existed to believe that the defendant was operating while under the influence, and ii) that probable cause did exist to believe that the search would produce evidence tending to establish the commission of the crimes charged. Because these findings are irreconcilable, we remand for reconsideration consistent with our interpretation of section 1312(11)(D).
As we previously have observed, a defendant is guilty of operating under the influence if "his mental or physical faculties are impaired `however slightly,' i.e., `to any extent.'" State v. Longley, 483 A.2d 725, 732 (Me. 1984) (quoting State v. Bean, 430 A.2d 1109, 1110-11 (Me. 1981)). Under this standard, probable cause to believe a defendant was operating under the
Although we will not reverse the court's findings concerning whether probable cause exists unless it is clearly erroneous, see State v. Cyr, 501 A.2d 1303, 1305 (Me. 1985), one of the court's findings in this case must be erroneous. In the exercise of our appellate function, however, we do not resolve these factual questions. We remand, therefore, to the Superior Court to reconcile its findings in light of the corrected interpretation of section 1312(11)(D).
III.
We are asked by the State to go further than to determine the meaning of the statutory requirement of probable cause. The State argues that Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), dispenses with a need for any level of individualized suspicion under the fourth amendment and that, consequently, we should uphold the constitutionality of the statute. We explicitly decline to address the constitutional issue for two reasons. First, the State's argument based on Skinner is raised for the first time on appeal. Second, the trial court must resolve the inconsistent factual findings before we can determine whether the constitutional issue is squarely presented. Of course, depending on the court's findings, both parties will be free on remand to put forward their constitutional arguments.
The entry is:
Judgment vacated.
Remanded to the Superior Court for further proceedings consistent with the opinion herein.
All concurring.
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