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State v. Damato

The trial court did not clearly err in finding the officer did not have probable cause to arrest defendant for per se DUI, because no evidence showed that defendant's alcohol concentration exceeded 0.08 grams.

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In this case, the state appeals the trial court’s order finding the officer did not have probable cause to arrest Maria Damato and granting Damato’s motion to suppress the result of a state-administered breath test. Because we find no error, we affirm the trial court’s order. When reviewing a trial court’s order on a motion to suppress, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and we review de novo the trial court’s application of the law to undisputed facts.1 Moreover, the trial court’s decisions with regard to questions of fact and credibility must be accepted unless they are clearly erroneous, and we will not disturb these decisions if there is any evidence to support them.2

Viewed in that light, the evidence shows that an officer responded to an accident call at approximately 4:00 a.m. on October 22, 2008. When he arrived at the scene, Damato, who was still in the car, stated that she had struck a deer that ran in front of her car. Neither she nor her passenger were injured. The officer smelled a strong odor of alcohol coming from within the car, and he noticed that Damato’s eyes were bloodshot and her skin was “slightly paled.” Damato initially denied having any alcoholic beverages, but then admitted she and her passenger were on their way back from a concert where she had consumed a “couple of drinks early that evening.”

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