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State v. Hinkel

Supreme Court of Maine

May 2, 2017

STATE OF MAINE
v.
JACOB A. HINKEL

          Submitted On Briefs: January 19, 2017

          Tina Heather Nadeau, Esq., The Law Office of Tina Heather Nadeau, PLLC, Portland, for appellant Jacob Hinkel.

          Stephanie Anderson, District Attorney, and William J. Barry, Asst. Dist. Atty., Prosecutorial District Two, Portland, for appellee State of Maine.

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          JABAR, J.

         [¶1] Jacob A. Hinkel appeals from a judgment entered by the trial court (Cumberland County, Wheeler, J.) after a jury found him guilty of one count of operating under the influence (OUI) with a refusal to submit to a chemical test (Class D), 29-A M.R.S. § 2411(1-A)(C)(2) (2016), and the trial court found him guilty of one count of operating after suspension (Class E), 29-A M.R.S. § 2412-A(1-A)(D) (2016). We affirm the judgment.

         I. BACKGROUND

         [¶2] When the evidence is viewed in the light most favorable to the State, the jury could have found the following facts beyond a reasonable doubt. See State v. Brockelbank, 2011 ME 118, ¶ 2, 33 A.3d 925. In the early morning of September 2, 2015, a South Portland police officer was working an OUI detail when he observed a car with its headlights off traveling at a speed in excess of the lawful limit. After the vehicle passed his cruiser, the officer activated his emergency lights and pulled the vehicle over into the breakdown lane. When the officer approached the drivers side window of vehicle, he encountered Hinkel in the drivers seat. Hinkel had red and glossy eyes and spoke in a slow and deliberate manner. The officer noted the smell of intoxicants emanating from the vehicle and asked Hinkel if he had been drinking. Hinkel denied drinking and explained that the smell was likely coming from the passenger. Suspecting that Hinkel was impaired, the officer asked him to exit the vehicle to perform a horizontal gaze nystagmus[1] (HGN) test. Hinkel complied. When Hinkel exited the vehicle, the officer continued to smell the odor of intoxicants on his breath. The officer again asked Hinkel if he had been drinking, and Hinkel again denied drinking but explained that he suffered from scoliosis and was taking aspirin for his back pain.

         [¶3] The officer proceeded to perform the HGN test on Hinkel and observed all of the six possible clues of impairment. He also had Hinkel complete verbal alphabet and counting tests. Based on Hinkels performance on these field sobriety tests and the totality of circumstances he observed, the officer placed Hinkel under arrest for OUI. A second South Portland police officer, who was also on duty that morning, arrived shortly thereafter and also performed an HGN test on Hinkel. The second officer similarly observed all six clues of impairment.

         [¶4] The second officer traveled with Hinkel to the county jail. There, the second officer tried to administer an Intoxilyzer test but he was unable to obtain a valid breath sample after four attempts because Hinkel gave deficient samples each time. After the unsuccessful attempts to obtain a breath sample, the second officer asked Hinkel to consent to a blood alcohol test and presented him with an implied consent form. In response, Hinkel began asking questions about what would be done with the sample. The second officer answered the questions to the extent he was able, but Hinkel persisted with his inquiries, never answering whether he would sign the form. After requesting more than ten times that Hinkel answer whether he would sign the implied consent form, the second officer deemed Hinkels behavior to constitute a refusal to submit to a chemical test.[2]

         [¶5] Hinkel was later charged by complaint with OUI while refusing to submit to a chemical test (Class D), 29-A M.R.S. § 2411(1-A)(C)(2), and operating after suspension (OAS) (Class E), 29-A M.R.S. § 2412-A(1-A)(D). He pleaded not guilty to both charges. Prior to trial, the parties stipulated that, "for strategic reasons, " the jury would hear and decide the OUI charge only, and that the court would decide the OAS charge while the jury deliberated. During the OUI portion of the trial, both officers, over Hinkels objections, testified to Hinkels performance on the HGN tests. The jury found Hinkel guilty of OUI with a refusal to submit to a chemical test, and the court, based on evidence presented while the jury deliberated, found him guilty of OAS. The court sentenced Hinkel to 120 days imprisonment, all but twelve days suspended, and one year of probation. Hinkel appeals.

         II. DISCUSSION

         A. Admission of HGN Testimony

         [¶6] Hinkel argues that the court erred in concluding that the State laid a proper foundation for the admission of testimony regarding the HGN tests. Specifically, he argues that the State did not establish that the second officer was qualified to administer the HGN test or that the tests conformed to ...


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