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State v. Thurlow

Supreme Court of Maine

December 17, 2019

STATE OF MAINE
v.
DONALD J. THURLOW

          Argued: October 9, 2019

          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.

          HJELM, J.

         [¶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.

          I. BACKGROUND

         [¶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. § 24ll(l-A)(C)(3) (2018); operating after suspension (Class E), 29-A M.R.S. § 2412-A(l-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:

[I]n this case, Mr. Thurlow is charged with the criminal offense called operating under the influence. And the State also claims that he refused to take a test of ...

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