In State v. Thurlow, the Law Court vacated Mr. Thurlow’s conviction for operating under the influence and ruled that he was entitled to a new trial because the trial court incorrectly instructed the jury about the evidentiary significance of his refusal to submit to a breath test.
At the time of the traffic stop, Thurlow’s vehicle had pulled into a driveway after speeding by a sheriff driving in the other direction. By the time the deputy turned around, he arrived to find the car parked and eventually Thurlow emerged from the nearby woods. At trial, the defendant admitted that yes, he was in the car, yes it was his car, and yes he had drunk quite a lot, but claimed that is was not he that was driving—it was Steve. “[Thurlow] 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, 2019 ME 166, ¶ 6, — A.3d —. Thurlow performed poorly on the field sobriety tests and would not submit to a breath test. He was arrested, charged, and contested the charges in a jury trial.
At the conclusion of the evidence, the judge instructed the jury that it could “consider [Thurlow’s] refusal of the test as evidence that he was operating under the influence of an alcoholic beverage.” Id. ¶ 11 (emphasis in original).
The Law Court determined that this instruction misstated the law, which provides that evidence of an accused’s failure to submit to a breath- or blood-alcohol test is admissible on the issue of whether the accused was under the influence of intoxicants. Because Thurlow’s attorney failed to object to the instruction at the trial, the Law Court applied “obvious error” review, which is a highly deferential standard that requires an appellant show that the error was not simply wrong, but so highly prejudicial that it tainted the proceeding and deprived defendant of a fair trial. Because the only disputed issue at trial was operation, not intoxication, and the error touch upon the central contested issue, even under this highly deferential standard of review, the Law Court ruled that the conviction could not stand.
Mr. Thurlow is now entitled to a new trial. Whether the “Steve defense” will win the day on remand remains to be seen.