State v. Thurlow
| Decision Date | 17 December 2019 |
| Docket Number | Docket: Cum-19-92 |
| Parties | STATE of Maine v. Donald J. THURLOW |
| Court | Maine Supreme Court |
Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Donald J. Thurlow
Jonthan Sahrbeck, District Attorney, William J. Barry, Asst. Dist. Atty., and Jordan Tomah Ramharter, Stud. Atty. (orally), Prosecutorial District 2, Portland, for appellee State of Maine
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶1] Donald J. Thurlow appeals from a judgment convicting him of operating under the influence, operating after suspension, and criminal speeding, entered in the Unified Criminal Docket (Cumberland County, Horton, J. ) after a trial. Among his contentions, Thurlow asserts that he did not receive a fair trial because the court provided the jury with erroneous instructions about how it could properly consider evidence of his failure to submit to a breath- or blood-alcohol test. We agree and therefore vacate the judgment and remand for a new trial on all charges.
[¶2] We draw the following account of this case from the procedural record and the evidence viewed in the light most favorable to the State. See State v. Ayotte , 2019 ME 61, ¶ 2, 207 A.3d 614.
[¶3] On June 22, 2018, in Gray, Thurlow was driving a motor vehicle, traveling more than twice the posted speed limit of thirty-five miles per hour. At the time, he was impaired by alcohol and his privilege to operate a motor vehicle was under suspension as a result of a prior OUI conviction. After passing a sheriff's deputy who was driving in the opposite direction, Thurlow pulled into a driveway, exited the vehicle, and ran into some nearby woods. The deputy turned around to investigate and came across the unoccupied vehicle. Thurlow eventually emerged from the woods and was apprehended by the deputy.
[¶4] After Thurlow performed poorly on field sobriety tests, the deputy arrested him and told him that he would be transported to the jail to take a breath-alcohol test. Although Thurlow told the officer at the scene that he was not going to blow into the instrument, when they arrived at the jail the officer began administering an Intoxilyzer test. Thurlow started to provide a breath sample but stopped before the sample was complete, saying that his "breath hurt." He then provided a second partial sample before stating that he was not going to complete the test. The deputy informed Thurlow about the consequences of failing to submit to a test. See 29-A M.R.S. § 2521(3) (2018). Thurlow signed a form acknowledging that he had received the warnings and documenting his decision not to submit to a test.
[¶5] The State subsequently charged Thurlow with OUI enhanced by two prior OUI convictions (Class C), 29-A M.R.S. § 2411(1-A)(C)(3) (2018) ; operating after suspension (Class E), 29-A M.R.S. § 2412-A(1-A)(B) (2018) ; and criminal speeding (Class E), 29-A M.R.S. § 2074(3) (2018). As part of the OUI charge, the State alleged that Thurlow had "failed to submit to a test at the request of a law enforcement officer." Thurlow entered not guilty pleas to all of the charges, and the case proceeded to trial in February of 2019. The trial was to a jury except for the charge of operating after suspension, on which Thurlow had elected to proceed with a jury-waived trial.
[¶6] At trial, the State presented the testimony of two law enforcement officers who had been involved in the investigation. Thurlow also testified. He admitted that at the time of the incident he was under the influence of alcohol and present in the vehicle, which he owned, but he claimed that he was a passenger. He stated that the operator was a person named "Steve," that he had met Steve just that day, and that Steve was test-driving the car, which Thurlow was trying to sell. Thurlow also presented testimony from a person who had been working on the car and who told the jury that Thurlow and a potential buyer took the vehicle for a drive and that Thurlow was the passenger.
[¶7] In its final instructions, the court told the jury:
(Emphasis added.) Neither party objected to any aspect of the court's jury instructions.
[¶8] The jury found Thurlow guilty of OUI1 and also found that he had failed to submit to a test as requested by the deputy. Additionally, the jury found Thurlow guilty of criminal speeding, and the court found him guilty of operating after suspension. At a sentencing hearing held several weeks later, on the OUI charge the court imposed a prison sentence of three years with two years suspended and two years of probation, and a $1,400 fine.2 See 29-A M.R.S. § 2411(5)(C)(2018). On the other charges, the court imposed concurrent terms of incarceration and the minimum mandatory $600 fine on the charge of operating after suspension, see 29-A M.R.S. § 2412-A(3) (2018). Thurlow filed a timely appeal from the resulting judgment.3 See 15 M.R.S. § 2115 (2018) ; M.R. App. P. 2A, 2B(b)(1).
[¶9] Thurlow argues, among other things, that the court's jury instructions regarding his alleged failure to submit to a breath-alcohol test—and the evidentiary significance of such a failure—contained misstatements of law.4
[¶10] Because Thurlow did not object to the jury instructions, we review for obvious error, which "exists where there is (1) error, (2) that is plain, (3) that affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." State v. Fox , 2014 ME 136, ¶ 22, 105 A.3d 1029 (alterations omitted) (quotation marks omitted); see M.R.U. Crim. P. 30(b), 52(b) ; State v. Pabon , 2011 ME 100, ¶ 29, 28 A.3d 1147. An instructional error affects a defendant's substantial rights if there is a "reasonable probability" that the error affected the outcome of the proceeding. Pabon , 2011 ME 100, ¶¶ 34-36, 28 A.3d 1147 ; see also State v. Weaver , 2016 ME 12, ¶ 11, 130 A.3d 972 (); State v. Doughty , 399 A.2d 1319, 1326 (Me. 1979) (). We review the challenged instruction in the context of the jury charge as a whole, e.g. , Weaver , 2016 ME 12, ¶ 11, 130 A.3d 972, and will vacate a judgment based on a trial court's jury instructions "only if the instructions fail to inform the jury correctly and fairly in all necessary respects of the governing law," Fox , 2014 ME 136, ¶ 22, 105 A.3d 1029 (quotation marks omitted).
[¶11] We focus our analysis specifically on the court's instruction to the jury that if it found that Thurlow had failed to submit to a test, it could "consider his refusal of the test as evidence that he was operating under the influence of an alcoholic beverage." (Emphasis added.)
[¶12] Title 29-A M.R.S. § 2431(3) (2018) articulates a set of rules governing evidence of an accused's failure to submit to a breath- or blood-alcohol test in an OUI case.5 The statute provides in part, "Failure of a person to submit to a chemical test is admissible in evidence on the issue of whether that person was under the influence of intoxicants ." 29-A M.R.S. § 2431(3) (emphasis added). Therefore, by operation of statute, a jury may consider admissible evidence of a failure to submit to a test in determining whether the State has proven the impairment element of OUI.6
[¶13] The statute, however, does not authorize consideration of this type of evidence on the issue of operation. This limitation in reach is understandable given that, although an accused's failure to submit to a test may be seen to bear on the question of whether the person was impaired by an intoxicant, the Legislature has not signified a connection between a person's failure to submit to a chemical test and the issue of whether that person had been operating a motor vehicle. This statutory disconnect is demonstrated by the absence of any legal authority cited by the State to support the notion that a jury should be permitted to consider evidence of a failure to submit to a test on the element of operation.7 Additionally, at oral argument, the State explicitly acknowledged that this...
To continue reading
Request your trial