I, Sergeant Michael McCarey, report the following summary of events based on direct and indirect interview with the persons named.
On Sunday, April 22, 2018, I, Sergeant McCarey, was in full-uniform and assigned to marked patrol cruiser unit #789, overseeing east Somerville as patrol supervisor for the Somerville Police Department. At approximately10:39 PM, I was stopped at the traffic light on Medford St eastbound, at Walnut Street. Both are public ways in the city of Somerville. In front of me was a Red Dodge Caravan bearing MA Reg # xxxx. The traffic light turned green and approximately 3 or 4 seconds went by without the van moving. Through the rear window of the van I could see a cell phone, with a navigation application open, in the hand of the operator. I then activated my blue lights and siren to initiate a stop for impeded operation of a MV. The MV came to rest across from 2xx Medford Street. I preached the MV and began to explain to the operator, Daniel B Orellana (DOB xxxx Sxxxx), why I had pulled him over. During this conversation I could detect an odor of an alcoholic beverage. Mr. Orellana had glassy eyes and had trouble forming his answers and enunciating his words. I should note that Mr. Orellana’s native language is not English. This was taken into account while speaking with him. His English is good, and did not appear to contribute to his slurred speech. Officers Ruf and C. Fusco were dispatched to back me up.
I asked Mr. Orellana to step out of the MV so I could perform some tests to determine his suitability to drive. At this time the car lurched forward about 5 feet, I reached across Mr. Orellana into the center console, threw the MV into park, turned the MV off and removed the Keys. When Mr. Orellana exited the MV he was very unsteady in his feet. So much so that I had to assist him to the sidewalk. Mr. Orellana explained to me that he had trouble with his right knee and leg from an accident and had trouble balancing.
The first test I administered was the Horizontal Gaze Nystagmus test or HGN. This test detects the involuntary jerking of the eyes and lack of smooth pursuit, that occurs when the test subject is intoxicated. The subject is instructed to follow the tip of a stimulus while moving only his eyes. Nystagmus is observed while the eyes are tracking the tip of the stimulus and while they are fixed on the point of the stimulus at maximum deviation or he furthest ones eyes can moved. I explained the test to Mr. Orellana from a pre printed instruction card that I carry in my pocket. I asked if he had any problems with his eyes. He answered in the negative. I read the remaining instructions and conducted the test. Both eyes displayed lack of smooth pursuit, clear and distinct nystagmus at maximum deviation, and had detectable nystagmus onset prior to 45 degrees. A total of six indicators were observed.
I then asked Mr. Orellana a few more questions about his leg, balance issues and if he had anything to drink. His answer was ” I’m going to be honest with you. I had one beer”. In the interest of Mr. Orellana’s safety, I decided not to perform any tests requiring balance. With three observations and the indicators form the HGN test. I formed the assumption that Mr. Orellana’s alcohol consumption had diminished his ability to operate a MV safely, and placed him under arrest for Operating a MV under the influence of intoxicating liquor. Mr. Orellana was transported to the station by unit #200 where he was booked in the usual manner by Lt. Lavey.
Due to the sensitive nature of the rights being given to Mr. Orellana during booking, Officer Messaoudi was called in to translate. Among others, Mr. Orellana was given his Miranda, telephone rights, implied consent, and 5A rights. Mr. Orellana agreed to take the breath test to determine his blood alcohol level. The test was administered by Ofc. Dervishian. and was conducted twice. The first test was aborted before it was finalized due to the test being outside tolerances. The second test was conducted after the machine reset, and resulted in a value of .16%. Double the Per-Se limit of .08%.
Mr. Orellana was issued MA CMVI #R8606348 as a criminal citation. The van was towed by Pats Towing and a 12 hour hold was placed on its release. While conducting an inventory of the van, an open and empty, 25.4oz can of Fosters beer was located in the center console. Photos were taken of the can, and will be attached. Mr. Orellana was issued MA CMVI #R8606348 as a Civil fine for the open container by Ofc. Ruf.
Sergeant Michael McCarey #298