On June 1, 2018, while on a detail at 4xx Washington Street, the XXXX, dispatch put out a BOLO for a blue pickup truck bearing MA registration xxxx was operating erratically. Dispatch stated the vehicle may have been in the areas of Beacon Street or Washington Street. It was at this time I saw a blue pickup truck, matching the description backing out of a parking spot in the parking lot of the above business. The plate was also a match. I stepped towards the vehicle and signaled the driver with my flashlight. The driver was pulling back into the parking spot and I approached the window. I spoke to the driver, later identified as Mr. Florencio Banos. I asked Mr. Banos where he was coming from and he stated “a friend’s house” I immediately noticed Mr. Banos’ speech to be slurred, his eyes to be glossy, and noticed the smell of alcohol coming from his breath. I asked Mr. Banos to turn off the vehicle and exit the vehicle to speak to me. As Mr. Banos exited the vehicle, he appeared unsteady on his feet and was using the truck to steady himself. I radioed dispatch and informed them I had the vehicle in the parking lot and to dispatch another unit. Car-2 (Officer Buswell), responded. I explained to Mr. Banos the reason I was speaking to him was that there was a call for a motor vehicle operating erratically. I asked Mr. Banos if he had consumed any alcohol this evening and he said “a few beers”. I would like to note that it was at this time I looked at the truck and noticed a can of beer sitting on the vehicle, right behind the cabin of the truck. The beer was partially full and the metal was cool to the touch. This led me to believe that it was fresh due to it being warm and humid out this evening. Mr. Banos stated he only lived a few blocks away and to please let him drive home.
I asked Mr. Banos if he would perform field sobriety tests and he said yes. I brought Mr. Banos over to a flat, dry spot in the parking lot, which also had painted lines. I would like to note that all of the tests I performed were read from a booklet I keep in my duty bag that was issued to me at the Lowell Police Academy and is distributed by the MPTC, which I will attach a copy of to this report. Prior to the tests I asked Mr. Banos if he was wearing contact lenses or if he had any physical injuries, specifically in his lower body, that would stop him from doing any tests. Mr. Banos replied in the negative to both. I also asked Mr. Banos if he would need an interpreter for any of these questions and he also replied no and that he spoke English.
Test 1- Horizontal Gaze Nystagmus test
I asked Mr. Banos to stand with his feet together and with his hands down by his sides. Mr. Banos was swaying around and had to use his hands to keep balance several times. Mr. Banos composed himself and I read the directions to him. I explained to Mr. Banos that I wanted him to follow my finger, which was illuminated by a blue pen light I keep in my vest pocket. I asked if he understood and he replied “yes”.
Mr. Banos had no resting Nystagmus and his pupils were of equal size.
Mr. Banos exhibited equal tracking.
Mr. Banos exhibited a lack of smooth pursuit in both his left and right eye.
Mr. Banos exhibited Nystagmus at maximum deviation.
At this time I was unable to finish the test because Mr. Banos was no longer following my directions. Mr. Banos was following the light by turning his head and he was also not focusing on me, looking at other people in the parking lot, and across the street. I asked several times for Mr. Banos to follow my directions but he was unable to.
Test-2 Walk and turn
I instructed Mr. Banos to use the line painted on the parking lot. I instructed him to put his left foot on the line, put his right foot in front of his left, with his right heel touching his left toe, and to keep his hands down by his side. I then demonstrated this to him. He was able to successfully hold this position for only a few seconds to which he moved his right foot away and apart from the left in what appeared to be an effort to regain his balance. I demonstrated again and he was swaying and using his hands in an “outward motion” to keep his balance. I asked him several times to keep his hands down by his side and he complied for a moment. I then explained to Mr. Banos I wanted him to take nine heel-to-toe steps, turn around using small steps, and take nine heel-to-toe steps back, all while counting out loud. I then demonstrated the type of steps and the type of turn I would like him to do. I asked if he understood the directions as explained and demonstrated and he replied “yes.”
Mr. Banos during the test was unable to do more than toe heel-to-toe steps, stepped off the line on steps two and five, only took a total of seven steps, and did not turn and no steps back.
I then asked Mr. Banos to return to the start of the line where he started the last test.
Test-3 One-leg Stand
I instructed Mr. Banos to stand with his feet together and his hands down by his side. Mr. Banos’ upper body was swaying in a circular motion and he was removing his hands from his side for balance.
I again asked Mr. Banos if he had any injuries, specifically to his legs and he said no again. I explained to Mr. Banos I wanted him, when I instructed him to, to raise one leg, approximately 6 inches off the ground, with his foot parallel to the ground, with both legs straight. I instructed him that I wanted him to keep both legs straight, and to look at his foot while counting out loud in the “one thousand one, one thousand two, one thousand three, etc” format.
I demonstrated the test to Mr. Banos and asked if he understood, he said “yes.”
I asked Mr. Banos to begin.
Mr. Banos was unable to get past one thousand, one, without putting his foot down, continued to then raise his foot, and restart counting. I attempted to explain the test to Mr. Banos again, but instead he began performing the walk and turn test again.
At this time I told Mr. Banos to turn around and put his hands behind his back, he complied and I handcuffed (DL) Mr. Banos and informed him he was under arrest for the OUI liquor. I requested Unit-200 (Prisoner transport vehicle) to my location and requested a tow truck for Mr. Banos’ vehicle incident to arrest.
Mr. Banos was transported to the station in 200 by Officer Brown and was booked in the usual manner by Sergeant Isodoro.
At the station Mr. Banos refused the breathalyzer test.
Mr. Banos was issued Massachusetts Uniform Citation T0402122 for OUI Liquor and Negligent operation of a motor vehicle. I will also be putting a license suspension notice into his property.
Attached to this report will be photos of the beer can on the back of the truck and an empty Corona beer bottle found in plain view in the front seat of Mr. Banos’ truck. I will also attach a photo of a bottle cap that was on the front seat of the vehicle, also Corona.
Oui Documents will be submitted into evidence along with a copy of the field sobriety instruction sheet
Officer Christopher Fusco #328