Search & seizure; Traffic stop; Probable cause to believe that defendant was driving while intoxicated; Ineffective assistance of counsel; Failure to move to suppress the breathalyzer evidence

The court held that “the trial court did not plainly err by admitting the breathalyzer evidence, and defendant’s Fourth Amendment rights were not violated.” Also, he was not denied the effective assistance of counsel as to the failure to move to suppress the breathalyzer test. He was convicted of OUI with an occupant under 16 years old, second offense and operating with a license suspended or revoked. He argued that “his constitutional right to be free from unreasonable searches and seizures was violated because Deputy [P] did not have probable cause to believe that defendant was driving while intoxicated.” The court concluded that P “had probable cause to believe that a traffic violation was occurring because defendant was driving an unregistered, motorized scooter meant for one person on a public road, with his daughter standing on the floorboard.” Thus, it found that “the stop was permissible.” The court concluded that his “breathalyzer test was a search for the purposes of the Fourth Amendment.” But, his “Fourth Amendment rights were not violated because the test was taken pursuant to two established exceptions to the warrant requirement: search incident to a lawful arrest and consent.” The court held that he “was lawfully arrested at the time that the breathalyzer test was performed.” It noted that he “committed multiple traffic violations.” Moreover, the court found that “defendant consented to the breathalyzer test.” And there was “no indication that defendant’s consent was coerced or involuntary.” Affirmed.