Argued: October 9, 2019
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
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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.
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.
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.
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.
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.
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.
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 ...