A Hooksett district court judge dismissed one of four charges in the DWI case against state Rep. James Spillane on Tuesday and could issue a ruling on the remaining counts as soon as Wednesday.

Spillane was arrested a little after 11 p.m. May 4, on Buck Street in Pembroke after a driver called 911 to report a driver that appeared drunk, swerving in and out of the lane.

A Pembroke police officer who arrested Spillane testified during a bench trial Tuesday that the Republican lawmaker from Deerfield had bloodshot eyes and smelled of alcohol when he let a gun fall out of his boots and smoked a cigar during a traffic stop in which he failed several field sobriety tests.

But defense attorney Mark Stevens of Salem poked holes in officer Jordan Boisvert’s testimony, pointing out, for example, that Boisvert’s arrest report referred to Spillane driving a Ford F-150, when his narrative report referred to a Toyota Tundra. He also suggested the cigar could very well be the reason for Spillane’s red eyes.

And when assistant Merrimack County attorney Casey Stanton tried to introduce into evidence a document about Spillane’s prior convictions, in 2010, for a DWI and reckless conduct – which have been widely reported in the press – Stevens argued the prosecution hadn’t properly linked those convictions to the man currently on trial.

Judge Lucinda Sadler agreed, telling Stanton that the witness then currently on the stand – Pembroke police Sgt. Chris Cunha, who assisted at the scene of the arrest – needed to have seen identifying information about Spillane, by say, reviewing his license during the traffic stop or booking him at the station, in order to link the two.

“Then there would be a foundation linking, allegedly this Mr. James Spillane, to this Mr. James Spillane,” Sadler said. “If you want to get this document in, you’ve got to get me a witness that says James Spillane was identified on that night as a certain date of birth, a certain address.”

Cunha testified he hadn’t been the officer to book Spillane and that he hadn’t reviewed his license. Sadler ultimately dismissed the DWI charge against Spillane linked to his prior conviction – the penalties for DWIs get harsher with each successive conviction.

Sadler has yet to rule on three remaining charges: a DWI charge, an open container violation and a yellow line violation.

Stevens also successfully got the results of one field sobriety test thrown out, arguing that the prosecution hadn’t shown that Boisvert had done his due diligence before proceeding with the field test. Sadler pressed Stanton to ask Boisvert more questions, but ultimately wasn’t satisfied with his answers.

Boisvert couldn’t recall whether or not he’d asked Spillane if a medical condition could impede his taking the eye test, Sadler pointed out. He also said he’d checked to see if his pupils were unequally sized, she said – but hadn’t actually said whether Spillane’s pupils were, in fact, unequally dilated.

“I gave you one shot at the apple, but at this point I have to sustain the objection because there just isn’t enough of a foundation,” Sadler told Stanton.

Spillane was given two opportunities to perform a field sobriety test demonstrating his balance when he complained his boots could be making it difficult for him to do so, Boisvert said. When Spillane leaned against his truck to take off his boots, that’s when a gun fell to the ground, he said.

Spillane refused a breathalyzer at the station after his arrest. Boisvert also testified that he found a flask with liquid in it in Spillane’s pants pocket, and that Spillane later confessed the flask contained whiskey.

The third-term legislator represents Nottingham, Candia and Deerfield, and he sits on the House Fish and Game and Marine Resources Committee.

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)

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