Defense attorney seeks to suppress evidence against ex-Bangor detective charged with OUI

By Nok-Noi Ricker, BDN Staff
Posted March 18, 2013, at 4:17 p.m.

BANGOR, Maine — The defense attorney representing a former Bangor Police Department detective charged with on-the-job drunk driving last year is seeking to have evidence against his client suppressed.

Erik Tall was charged with operating under the influence on Oct. 3, by Lt. Mark Hathaway, the city’s interim police chief at the time. Tall resigned from the force three months later. Tall’s attorney, Marvin Glazier, filed a motion to suppress evidence collected in the case, including the results of the Intoxilyzer test that showed Tall’s blood alcohol level was over the legal limit, and statements he allegedly made to police officials before he was charged.

Penobscot County District Attorney R. Christopher Almy said at the time of Tall’s arrest that an Intoxilyzer test showed his blood alcohol level was 0.13. The state’s legal limit for driving a vehicle is 0.08.

The first part of the suppression hearing before Superior Court Justice John Nivison was held Monday at the Penobscot Judicial Center. Hathaway and police union representative Detective Myron Warner testified about what took place the day Tall was charged.

Hathaway, questioned by Assistant District Attorney Marianne Lynch, told the court that Lt. Tim Reid, who leads the detective division, got a tip that Tall was in a patrol car and intoxicated on the evening of Oct. 3, 2012. Reid found Tall near the Airport Mall and drove him to the police station, where Hathaway met up with them shortly afterward.

After Hathaway and Reid interviewed Tall in Reid’s office, Warner was called and spoke with Tall for at least five minutes in the roll call room before the Intoxilyzer test was conducted, Hathaway said.

During the meeting in Reid’s office, Tall smelled of alcohol, Hathaway said during Monday’s testimony. When questioned at the time, Tall said he had consumed two drinks earlier in the day, according to Hathaway.

All police officers working downstairs in the station, except for one to run the Intoxilyzer, were asked to leave the building for about 15 minutes to provide Tall with privacy, Hathaway said.

Warner told the judge that he was called by Tall first, saying he might be needed, and a couple minutes later was called by Hathaway.

Glazier questioned Hathaway repeatedly about if he ever told Tall his job was on the line, and about the length of time Tall was allowed to have with Warner before he took the blood alcohol test.

“You can’t coerce public officials to incriminate themselves,” Glazier said after the hearing ended, explaining his questions in court.

The second issue, Glazier said, is whether Hathaway had enough evidence against Tall before the Intoxilyzer test was administered.

Hathaway testified that he never brought up Tall’s job when he questioned him. Hathaway said he wanted things to move along once Warner arrived because his officers had been asked to leave the station and it had already been a couple of hours since Tall was brought into the building. He added, however, that “there was no time limit” put on the meeting between Tall and the union rep.

Hathaway also testified that he called in Lt. Tom Reagan, a drug recognition expert, to evaluate Tall before he made his decision about whether to charge Tall with drunken driving.

“It was very clear to me that Detective Tall was operating a patrol vehicle under the influence,” said Hathaway, noting he based his decision on his 25 years of experience working for Bangor Police Department, and discussions with Reagan, Reid and the officer who administered the Intoxilyzer.

Warner said he told Tall to take the Intoxilyzer test, which is required by state law in all operating under the influence cases. If he refused, his driver’s license would have been suspended for 275 days and, if convicted, would have resulted in additional jail time, the Maine OUI law states.

“I’m not his attorney, but it was my opinion — I told him I would take the test under the same circumstances,” the union representative for officers said Monday.

Due to scheduling, the hearing was continued, and should resume sometime in the near future, the judge said.

Warner and Tall shook hands and then hugged at the end of the court hearing.

CORRECTION:

An earlier version of this story requires correction. Detective Warner’s first name is Myron, not Marion.

http://bangordailynews.com/2013/03/18/news/bangor/defense-attorney-seeks-to-suppress-evidence-against-ex-bangor-detective-charged-with-oui/ printed on August 22, 2014