MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 76 Docket: Cum

- 16

- 150 Submitte d

On	Briefs: January 19,	2017 Decided: May 2 ,	2017 Corrected: July	27 ,	2017
Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN , JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. JACOB A.	HINKEL
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 , t he 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	early2 morning	of	September	2,	2015, a South	Portland	p olice officer was	working	an
O UI	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	 t he	 driver’s	 side	 window	 of	 vehicle,	 he encountered Hinkel in	 the	driver’s	seat.		Hinkel had	red	and glossy	eyes and spoke	 in	 a	 slow	 and	 deliberate	 manner. The	 officer noted	 the	 smell	 of
intoxic ants	 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	n ystagmus 1 (HGN)

test. Hinkel complied

. W hen 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	wa s	taki ng	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 Hinkel ’s	performance

1 Nystagmus	 is	 the	 involuntary	 jerking	 of	 the	 eyeball,	 which	 “may	 be	 aggravated	 by	 central nervous	 system	 depressants	 such	 as	 alcohol	 or	 barbiturates.” State	 v.	 Taylor ,	 1997	ME	 81,	 ¶ 11, 694 A.2d	907 (quotation	marks	omitted).3 on	these	field	sobriety	tests	and	the	totality	of	circumstances he	observed , the officer placed Hinkel under	 arrest	 for	 OUI. A	 second South	 Portland	 p olice 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	I ntoxilyzer	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 ask ed	 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	Hin kel	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	 Hinkel’s	 behavior	 to
constitute	a refusal	t o	submit	to	a	chemical	test. 2

2 Hinkel	 has	 not	 challenged,	 on	 constitutional	 grounds,	 the	 admissibility	 of	 evidence	 of	 his refusal	 to	 submit	 to	 a	 blood	 draw. See Birchfield	 v.	 North Dakota , 136	 S.	 Ct.	 2160,	 2185 ,	 195 L. Ed. 2d	560	(2016)

.4 [¶ 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 operatin g	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	 por tion	 of	 the	 trial,	 both officers ,	 over	 Hinkel’s	 objections, testified	 to	 Hinkel’s	 performance	 on	 the	 HGN	 tests. T he	 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	err ed 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	 the5 procedures	 set	 forth	 by	 the	 National	 Highway	 Traffic	 Safety	 Administration (NHTSA)

. [¶ 7 ]	 	 We	 review	 evidentiary	 rulings	 for	 clear	 error	 and an abuse	 of discretion. State	v.	Taylor ,	1997	ME	81,	¶	10,	694	A.2d	907

. In Taylor ,	we	took judicial	 notice	 of	 the	 reliability	 of	 HGN	 tests	 “for	 purposes	 of	 establishing criminal	guilt	in	cases	involving operating under	the	influence ”	and	held	that testimony	 regarding	 the	 tests	 may	 be	 admitted	 “as	 evidence	 supporting probable	 cau se	 to	 arrest	 without	 a	 warrant	 or	 as circumstantial evidence	 of intoxication.” Id. ¶¶	10,	13.		To	be	admissible,	however,	the	propone nt of	the testimony must	 lay	 a	 proper	 foundation by establish ing that	 “the	 officer	 or administrator	 of	 the	 HGN	 test	 is	 trained	 in	 the	 procedure	 and	 the	 test	 was properly	administered.” Id. ¶	12. [¶ 8 ] Here, t he	State	laid	a	proper	foundation	pursuant	to Taylor

. B oth officers testified	 that	 they	 graduated	 from	 the Maine	 Criminal	 Justice Academy , where	they	received	training	on	the	administration	of	field	sobriety tests,	including	the	HGN test

. In	fulfilling	its	gatekeeping	function, see State	v. Atkins , 2015	ME	162,	¶	2,	129	A.3d	952 , the trial court properly determined that,	 based	 on	 the	 officers’	 training	 and	 experience,	 each	 was qualified to testify.6 [¶ 9 ]	 	 In	 addition	 to	 arguing	 that	 the	 second	 officer	 lacked	 sufficient training and	experience	to	testify	about	Hinkel’s	performance	on	the	HGN	test, Hinkel also	contends	 that	 the	HGN	 tests	here	were	administered	improperly. Hinkel,	however, does n o t	point	to	any evidence	in	the	record	demonstrating how	the	tests	deviated	from	the	standards	set	forth	in	the	NHTSA	manual. To the	 extent that the	 officers did	 d eviate	 from	 the	 protocol	 provided	 in	 the NHTSA	 manual,	 the	 court	 did	 not	 err	 in	 admitting	 the	 testimony

. W e	 have established that “[a]	 police	 officer’s	 failure	 to	 strictly	 adhere	 to	 the	 specific procedures	promulgated	by	NHTSA	does	not	render	evidence	reg arding	those field	 sobriety	 tests	 inadmissible	 or	 without	 value	 in	 determining	 whether	 a suspect	is	under	the	influence	of	intoxicants.” State	v.	Fay ,	2015	ME	160,	¶	7, 130	 A.3d	 364

. Under	 this	 framework,	 once	 the	 court	 determined	 that	 the officers’ administration	of	 the HGN tests	was	sufficiently	reliable ,	Hinkel	wa s free	to	explore	through	cross

- examination	any	alleged	failures	by	the	officers

to strictly adhere	 to	NHTSA	protocol. Therefore,	 the	court	neither	erred	nor abused	 its	 discretion	 in	 perm itting	 the	 officers	 to	 testify	 about their administration	of	the	HGN	tests	on	Hinkel.7 B. Consideration by the	Court	of	Evidence	of	Operation [¶1 0 ] Hinkel	next	contends	that	the	court	committed	obvious	error by considering testimony	 from	the OUI portion of	the	trial

— as	presented	to	the jury

— to conclude	 that	 the State	 met	 its	 burden	 of	 proving the	 operation element	 of	 the	OAS	 charge , which	 was decided	 by	 the	 court	 rather	 than	 the jury

. [¶1 1 ]		Because	Hinkel	did	not	make	a	 timely	objection	at	 trial,	we will
vacate only after	concluding that	 the re	is	 “(1)	an	er ror,	 (2)	 that	is	plain,	and (3) that affects	substantial	rights.” State	v.	Pabon ,	2011	ME	100,	¶	29 ,	28	A.3d
1147

. “If	these	conditions	are	met,	we	will	exercise	our	discretion	to	notice	an unpreserved	error	only	if	we	also	conclude	that	(4)	the	error	seriously	affec ts the	fairness	and	integrity	or public	reputation	of	judicial	proceedings.” Id. [¶1 2 ] We	discern	no	such	error	here.		The	court	did	not	formally sever the	OAS	and	OUI	charges pursuant	to	M.R.U.	Crim.	P.	8(d) ,	which	provides	that a	court	may	grant	a	severance	of	charges “ if it	appears	that	a defendant .	.	.	is prejudiced	by	a	joinder	of	offenses.”		Rather,	the	parties	agreed	before	trial	to have	 the	 court	 decide	 the	 OAS charge for	 “strategic	 reasons.” Because the

court did	 not	 make	 any determination that	 prejudice	 would	 result	 from hearing	 the	 charges	 simultaneously ,	 the	 court did	 not	 commit	 obvious	error8 when	 it	 considered testimony presented	 to	 the	 jury	 on	 the	 OUI	 charge	 in deciding	the	OAS	charge

. See M.R.U.	Crim.	P.	8(d); State	v.	Lemay ,	2012	ME	86, ¶	2 3,	46 A.3d	1113

. C. Sufficiency	of	the	Evidence [¶1 3 ] Lastly,	Hinkel	contends	that	there	was	insufficient	evidence	in	the record	 upon	 which	 the	 jury rationally could	 find	 him	 guilty	 of	 OUI with	 a refusal to	 submit	 to	 a	 chemical	 test. Viewing	 the	 evidence	 presented	in	 the light	 most	 favorable	 to	 the	 State,	 however, there	 was sufficient	 evidence presented to	 allow	 the	 jury	 to rationally find	 every	 element	 of	 the crime cha rged	beyond	a	reasonable	doubt. See 29

- A	M.R.S. §	2411(1

- A)(C)(2); State v.	Cheney ,	2012	ME	119,	¶	37,	55	A.3d	473 ; State v.	Just ,	2007 ME	91,	¶¶	4,	7, 18,	926	A.2d	1173

. The	entry	is: Judgment	affirmed.

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

Cumberland	County	Unified	Cri minal	Docket	docket	number	CR

- 2015

- 5360 F OR C LERK R EFERENCE O NLY