MAINE SUPREME JUDICIAL COURT                                                          Reporter of Decisions
Decision: 2015 ME 162
Docket:   Ken-15-77
Argued:   December 9, 2015
Decided:  December 22, 2015

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.



                                         STATE OF MAINE

                                                     v.

                                       BRADLEY R. ATKINS

ALEXANDER, J.

         [¶1]      To convict a person of operating under the influence (OUI)

29-A M.R.S. § 2411(1-A) (2014), the State must prove, beyond a reasonable

doubt, two elements: (1) the person operated a motor vehicle, and (2) at the time of

operation, the person was under the influence of an intoxicant—alcohol, drugs, or

another intoxicant—or a combination of intoxicants. See also State v. Soucy,

2012 ME 16, ¶ 11, 36 A.3d 910. A person is under the influence if the person’s

physical or mental faculties are impaired however slightly or to any extent by the

substance or substances that the person consumed.1                            Id.; State v. Worster,

611 A.2d 979, 980-81 (Me. 1992).




   1
       A person may consume a substance by eating, drinking, inhaling, or injecting it.
2

         [¶2]     In this appeal we examine whether a law enforcement officer’s

testimony about statements by the accused and observations indicating his or her

impairment must be excluded because the officer lacked sufficient training or

expertise in drug impairment recognition and the officer could not perform certain

evaluations that a drug recognition expert could have. See 29-A M.R.S. §§ 2525,

2526 (2014). In a recent appeal, State v. Fay, 2015 ME 160, --- A.3d ---, we

examined whether a law enforcement officer’s testimony about observations of

impairment must be excluded because the officer did not strictly adhere to field

sobriety test procedures prescribed in a training manual. Our opinions in Fay and

here establish that, subject to the court’s gatekeeping role established in Maine

Rules of Evidence 401 to 403 and 601(b), any deficiencies in an officer’s training

or expertise, or failure to strictly comply with prescribed procedures in making

observations or conducting tests, go to the weight, but not the admissibility, of the

officer’s testimony regarding observations of impairment.2




    2
        In Fay, we stated:

          A police officer’s failure to strictly adhere to the specific procedures promulgated by [the
          National Highway Traffic Safety Administration] does not render evidence regarding
          those field sobriety tests inadmissible or without value in determining whether a suspect
          is under the influence of intoxicants. The use of alternative approaches might be relevant
          to the weight the jury places upon that evidence, but that is a matter that can be addressed
          through cross-examination.

State v. Fay, 2015 ME 160, ¶ 7, --- A.3d ---.
                                                                                 3

                                 I. CASE HISTORY

      [¶3] On January 21, 2014, on Riverside Drive in Augusta, a police officer

observed Bradley R. Atkins to be operating a vehicle with a taillight out. Atkins

then drove through a red light. After Atkins was stopped, some of his reactions to

the stop appeared unusual. When the officer approached the driver’s side of the

vehicle, Atkins “appeared to be chuckling or laughing and was scrolling down his

phone not making eye contact.” As he exited the vehicle, Atkins moved “like

everything was in slow motion.” Responding to the officer’s questions, Atkins

stated that he had not consumed any alcohol, but “he had smoked multiple dabs” of

THC, and that, consequently, he was “high as hell.” Asked if he believed he could

drive to Portland, Atkins responded, “No way. I’m too stoned.”

      [¶4] Atkins was arrested and charged by criminal complaint with OUI

enhanced    with   one   prior    OUI   conviction   (Class   D),   29-A   M.R.S.

§ 2411(1-A)(B)(1), and was subsequently convicted of that offense after a nonjury

trial (Kennebec County, Mullen, J.).

       [¶5] The facts leading to the arrest and the OUI charge, discussed briefly

above, are not in dispute. The issue is whether the evidence supporting those facts

was admissible and sufficient to support the conviction.

       [¶6] After Atkins waived his right to a jury trial, the court held a bench

trial. Shortly before trial, Atkins filed a motion in limine seeking to exclude
4

“evidence of alleged narcotic use or allegations of being under the influence of

narcotics.” Atkins argued that the arresting officer’s testimony should be excluded

because the officer was not a drug recognition expert, and that only such a

specially trained officer could testify to observations of impairment when the

substance at issue was a drug other than alcohol. Atkins also sought to exclude the

testimony of a drug recognition expert whom the arresting officer called that night

to discuss the case, as the expert did not conduct an evaluation of Atkins. The

court denied the motion with regard to the arresting officer’s testimony, but it

limited the drug recognition expert to testifying that, after speaking with the

arresting officer on the night in question, the drug recognition expert did not come

to the scene to evaluate Atkins.

      [¶7] The court found Atkins guilty of operating under the influence for the

second time in ten years. After making findings of fact based upon the arresting

officer’s testimony, the court stated: “The issue for me is whether the ingestion of

drugs, in this case, impaired Mr. Atkins’s physical and mental faculties however

slightly or to any extent while he was operating a motor vehicle. And to me, the

answer is—beyond all reasonable doubt, the answer is obviously yes.”

      [¶8] The court sentenced Atkins to ninety days of imprisonment, all but

seven days suspended, to be followed by one year of probation. The court also

ordered that Atkins’s driver’s license be suspended for three years and ordered
                                                                                   5

Atkins to pay a total of $890 in fines. Atkins timely appealed. See 15 M.R.S.

§ 2115 (2014); M.R. App. P. 2(b).

      [¶9] Atkins contends that the trial court erred by (A) refusing to strike his

prior OUI conviction, entered after a plea, because it had been entered without

proper waiver of his right to counsel; (B) allowing the arresting officer to testify

about Atkins’s statements and the officer’s observations of impairment from drugs

other than alcohol; and (C) finding him guilty of OUI, given that no drug

recognition expert examined Atkins at the time of the arrest.

                             II. LEGAL ANALYSIS

      [¶10] We address each of Atkins’s arguments in turn.

A.    The Prior Uncounseled OUI Conviction

      [¶11] Atkins argues that the trial court erred by refusing to strike from the

criminal complaint the allegation of a prior OUI conviction. In support of his

motion to strike the allegation of the prior conviction, Atkins asserted that he did

not remember much of the proceeding that led to his prior OUI plea. However, he

did remember viewing a video. The pre-arraignment video used throughout the

state describes criminal defendants’ fundamental rights.         Among the rights

described are the right to the assistance of counsel and the right to have counsel

appointed if a defendant is facing a possible jail sentence and cannot afford to hire

counsel.
6

      [¶12] Atkins attempts to collaterally attack his prior conviction on the basis

of a deprivation of the right to counsel or lack of a waiver of his right to counsel

before entering his plea. See State v. Johnson, 2012 ME 39, ¶ 23, 38 A.3d 1270.

Because, however, Atkins was not facing a term of imprisonment in the prior

matter and because the sentence in fact did not include incarceration, he did not

have a constitutional right to court-appointed counsel.        See State v. Cook,

1998 ME 40, ¶ 6, 706 A.2d 603. The use of the uncounselled conviction therefore

was not barred based on an alleged deprivation of the right to counsel because

Atkins did not have such a right in that proceeding. Further, Atkins may not

collaterally attack the prior conviction on any other ground.         See Johnson,

2012 ME 39, ¶ 23, 38 A.3d 1270. The court therefore did not err in refusing to

strike the allegation of the prior conviction.

B.    Denial of Motion in Limine

      [¶13]    In an OUI trial, evidence that a driver was impaired, including

reported observations that he or she showed symptoms of intoxication, is relevant

to the crime charged. See 29-A M.R.S. § 2411(1-A)(A)(1); M.R. Evid. 401;

Fay, 2015 ME 160, ¶ 7, --- A.3d ---; Soucy, 2012 ME 16, ¶ 11, 36 A.3d 910;

State v. McCurdy, 2002 ME 66, ¶ 10, 795 A.2d 84. “All relevant evidence is

admissible, except as limited by constitutional requirements or as otherwise

provided by statute[,] . . . [the Maine Rules of Evidence,] or . . . other rules
                                                                                                       7

applicable in the courts of this state.” M.R. Evid. 402 (Tower 2014).3 Therefore,

evidence tending to show that a driver was impaired is admissible in an OUI trial

unless the law or the rules of evidence provide otherwise.

        [¶14] Atkins argues that the statutes addressing drug recognition experts,

29-A M.R.S. §§ 2525 and 2526, require that, when a defendant charged with OUI

is alleged to have been intoxicated by a substance other than alcohol, the testimony

of a drug recognition expert is necessary. Atkins contends that these statutes

render the testimony of any person who is not such an expert unreliable, requiring

that the person be barred from testifying about observations indicating that a

defendant was impaired by drugs.4

        [¶15]     Section 2526 establishes a program to train and certify drug

recognition experts, and mandates that only officers who have completed the

program may conduct drug impairment assessments and testify as experts pursuant

to section 2525. Section 2525(1) provides that a person must submit to a blood or

urine test if and when “a drug recognition expert has probable cause to believe that

a person is under the influence” of a drug, multiple drugs, or a combination of


   3
      M.R. Evid. 402 has since been replaced, effective January 1, 2015, with restyled language that does
not affect the substance of the Rule. See M.R. Evid. 402 (restyled Maine Rules of Evidence).
   4
     As we discussed in State v. Moulton, although alcohol may be a “drug” by the common definition of
the word, the references to “drugs” in 29-A M.R.S. § 2525 (2014) do not include alcohol. 1997 ME 228,
¶¶ 14-16, 704 A.2d 361. Accordingly, in the instant context, we use the word “drug” to refer to an
intoxicating substance other than alcohol.
8

drugs and alcohol. Section 2525(2) provides that a drug recognition expert’s “drug

impairment assessment” and the results of a blood or urine test are admissible in an

OUI trial. In addressing the admissibility of the results of a drug recognition

expert’s tests, subsection 2 does not, directly or by implication, prohibit testimony

by any person reporting observations of impairment. Even regarding test results,

subsection 2 states that when section 2525’s requirements are not satisfied,

“evidence of test results” must be excluded only when “the evidence is determined

to be not sufficiently reliable.”

      [¶16] Thus, sections 2525 and 2526 do not bar a nonexpert officer, or even

a layperson, from testifying to his or her observations of a driver’s impairment or

the conduct and results of a field sobriety test.        The various mandates of

section 2525 do not apply here because the arresting officer was not presented as a

drug recognition expert, and such an expert never examined Atkins.

      [¶17] Although in some circumstances the testimony of a person not trained

in drug recognition may arguably be entitled to less weight than the testimony of a

person trained to recognize signs of impairment by drugs, “[d]eterminations of the

weight and credibility to be afforded the evidence are within the fact-finder’s

exclusive province.”      State v. Schmidt, 2008 ME 151, ¶ 19, 957 A.2d 80.

Similarly, while there may be rare circumstances when a witness is demonstrably

unqualified or sufficiently unreliable to be allowed to testify to apparently relevant
                                                                                         9

evidence, see M.R. Evid. 104(a), 601(b); State v. Cochran, 2004 ME 138, ¶¶ 6-9,

863 A.2d 263 (addressing criteria to determine witness competency in affirming

trial court allowing child witness to testify), those circumstances do not exist here.

      [¶18] The trial court did not abuse its discretion or otherwise err when it

denied Atkins’s motion in limine and admitted the arresting officer’s testimony

regarding his observations and the results of the field sobriety tests, as the officer

was qualified to testify as to his observations, that evidence was relevant to the

OUI charge, and its admission was not otherwise barred. See M.R. Evid. 401, 402;

State v. Adams, 2014 ME 143, ¶ 8, 106 A.3d 413; State v. Patterson, 651 A.2d 362,

366 (Me. 1994).

C.    Sufficiency of the Evidence

      [¶19]   Atkins challenges the sufficiency of the evidence to support his

conviction in the absence of an examination by a drug recognition expert.

      [¶20] “When determining whether the record contained enough evidence to

support a criminal defendant’s conviction, we view ‘the evidence in the light most

favorable to the State to determine whether the fact-finder could rationally find

every element of the offense beyond a reasonable doubt.’” State v. Sanchez,

2014 ME 50, ¶ 8, 89 A.3d 1084 (quoting State v. Woodard, 2013 ME 36, ¶ 19,

68 A.3d 1250).
10

         [¶21] A person commits the crime of OUI when he or she “[o]perates a

motor vehicle . . . [w]hile under the influence of intoxicants.”5 29-A M.R.S.

§ 2411(1-A)(A)(1). Thus, “[i]f the State proves that, while operating a motor

vehicle, a defendant’s mental or physical faculties were impaired however slightly,

or to any extent, by alcohol, drugs, or other intoxicants, a defendant is guilty of

operating under the influence.” Soucy, 2012 ME 16, ¶ 11, 36 A.3d 910. Further,

“[i]n an OUI hearing, ‘testimony that the defendant exhibited symptoms of

intoxication can be sufficient to support a finding that the defendant was under the

influence.’” Id. ¶ 10 (quoting McCurdy, 2002 ME 66, ¶ 10, 795 A.2d 84).

         [¶22]   Contrary to Atkins’s contentions, there was, as the court found,

sufficient evidence to support his OUI conviction “beyond all reasonable doubt.”

Just as the drug recognition expert statutes do not bar the admission of other

evidence of impairment by drugs in an OUI trial, those statutes do not affect the

proof necessary to convict a defendant of OUI. Here, the court found that “the

ingestion of drugs . . . impaired Mr. Atkins[’s] physical and mental faculties . . .

while he was operating a motor vehicle.” See 29-A M.R.S. § 2411(1-A)(A)(1);




     5
      Atkins was convicted pursuant to 29-A M.R.S. § 2411(1-A)(B)(1) (2014) because he had one prior
OUI conviction within the previous ten-year period. There is sufficient evidence to support the court’s
finding that Atkins had one prior OUI conviction, as the State produced the judgment and commitment of
that conviction at trial.
                                                                                 11

Soucy, 2012 ME 16, ¶ 11, 36 A.3d 910. That finding is supported by the following

evidence, referenced by the court when it issued its decision:

   • Atkins drove through a red light;

   • Atkins stated that, other than his taillight being out, he did not know why he

      had been stopped;

   • Atkins admitted to the officer that he had smoked a concentrated form of

      THC multiple times that night;

   • Atkins stated that he could not drive to Portland because he was “too

      stoned”;

   • Atkins’s eyes were bloodshot, glassy, and droopy;

   • Atkins fumbled with his wallet and exited the car as though “everything was

      in slow motion”; and

   • Atkins’s observed performance on two out of three field sobriety tests

      “supported a conclusion that [he] was under the influence of something.”

This evidence—none of which requires any level of expertise—fully supports the

court’s determination that Atkins was exhibiting symptoms of intoxication.

See McCurdy, 2002 ME 66, ¶ 10, 795 A.2d 84.

      [¶23] For these reasons, the court did not err when it found Atkins guilty of

operating a motor vehicle while under the influence of an intoxicant.
12

        The entry is:

                           Judgment affirmed.



On the briefs:

        Thomas J. Carey, Esq., Vienna, for appellant Bradley R. Atkins

        Maeghan Maloney, District Attorney, and Frayla Schoenfeld,
        Asst. Dist. Atty., Prosecutorial District IV, Augusta, for
        appellee State of Maine

At oral argument:

        Thomas J. Carey, Esq., for appellant Bradley R. Atkins

        Frayla Schoenfeld, Asst. Dist. Atty., for appellee State of Maine



Kennebec County Superior Court docket number CR-2014-194
FOR CLERK REFERENCE ONLY
