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
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
morning of September 2, 2015, a South Portland police officer was working an 2
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
on these field sobriety tests and the totality of circumstances he observed, the
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
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
[¶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
2 Hinkel has not challenged, on constitutional grounds, the admissibility of evidence of his refusal to submit to a blood draw. See Birchfield v. South Dakota, 136 S. Ct. 2160, 2185, 195 L. Ed. 2d 560 (2016). 4
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
procedures set forth by the National Highway Traffic Safety Administration
(NHTSA). 5
[¶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.
[¶9] In addition to arguing that the second officer lacked sufficient
training and experience to testify about Hinkel’s performance on the HGN test, 6
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
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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
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
morning of September 2, 2015, a South Portland police officer was working an 2
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
on these field sobriety tests and the totality of circumstances he observed, the
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
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
[¶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
2 Hinkel has not challenged, on constitutional grounds, the admissibility of evidence of his refusal to submit to a blood draw. See Birchfield v. South Dakota, 136 S. Ct. 2160, 2185, 195 L. Ed. 2d 560 (2016). 4
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
procedures set forth by the National Highway Traffic Safety Administration
(NHTSA). 5
[¶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.
[¶9] In addition to arguing that the second officer lacked sufficient
training and experience to testify about Hinkel’s performance on the HGN test, 6
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.
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 7
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
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. 8
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