MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	76

Docket: Cum-16-150

Submitted

		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,	 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	
2

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	 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	

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	nystagmus1 (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	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	 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	 Hinkel’s	 behavior	 to	

constitute	a refusal	to	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	

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	 Hinkel’s	 objections,	

testified	 to	 Hinkel’s	 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	 the	
5

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	 cause	 to	 arrest	 without	 a	 warrant	 or	 as	 circumstantial	 evidence	 of	

intoxication.”		Id.	¶¶	10,	13.		To	be	admissible,	however,	the	proponent of	the	

testimony must	 lay	 a	 proper	 foundation by establishing that	 “the	 officer	 or	

administrator	 of	 the	 HGN	 test	 is	 trained	 in	 the	 procedure	 and	 the	 test	 was	

properly	administered.”		Id. ¶	12.		

[¶8]		Here,	the	State	laid	a	proper	foundation	pursuant	to	Taylor.	 Both	

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 not	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	 deviate	 from	 the	 protocol	 provided	 in	 the	

NHTSA	 manual,	 the	 court	 did	 not	 err	 in	 admitting	 the	 testimony. We	 have

established that “[a]	 police	 officer’s	 failure	 to	 strictly	 adhere	 to	 the	 specific	

procedures	promulgated	by	NHTSA	does	not	render	evidence	regarding	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	was	

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	 permitting	 the	 officers	 to	 testify	 about	 their

administration	of	the	HGN	tests	on	Hinkel.		
7

B. Consideration	by the	Court	of	Evidence	of	Operation

[¶10]		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.		

[¶11]		Because	Hinkel	did	not	make	a	 timely	objection	at	 trial,	we	will	

vacate	only	after	concluding that	 there	is	 “(1)	an	error,	 (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	affects	

the	fairness	and	integrity	or public	reputation	of	judicial	proceedings.”		Id.	

[¶12]		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	error	
8

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,	

¶	23,	46 A.3d	1113.	

C. Sufficiency	of	the	Evidence

[¶13]		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	

charged	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	Criminal	Docket	docket	number	CR-2015-5360

FOR	CLERK	REFERENCE	ONLY