MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	61	
Docket:	   Ken-18-191	
Argued:	   February	7,	2019	
Decided:	  April	23,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                   CADE	H.	AYOTTE	
	
	
HUMPHREY,	J.	

       [¶1]		Cade	H.	Ayotte	appeals	from	a	judgment	of	conviction	of	operating	

under	the	influence	(Class	D),	29-A	M.R.S.	§	2411(1-A)(A)	(2018),	entered	by	

the	 trial	 court	 	 (Kennebec	 County,	 Murphy,	 J.)	 following	 a	 jury	 trial.	 	 Ayotte	

asserts	 that	 the	 court	 erred	 by	 denying	 his	 motion	 to	 suppress	 evidence	

obtained	 from	 a	 blood	 draw	 and	 by	 failing	 to	 issue	 a	 curative	 instruction	 to	

remedy	 the	 State’s	 alleged	 misstatement	 of	 the	 evidence	 in	 its	 closing	

argument.		We	affirm	the	judgment.			

                                   I.		BACKGROUND	

	      [¶2]		When	the	evidence	is	viewed	in	the	light	most	favorable	to	the	State,	

the	 jury	 rationally	 could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	

doubt.	 	 See	 State	v.	 Simons,	 2017	 ME	 180,	 ¶	 2,	 169	 A.3d	 399.	 	 Early	 in	 the	
2	

morning	on	June	25,	2016,	Augusta	police	officers	responded	to	a	motor	vehicle	

crash.		When	the	officers	arrived,	they	observed	tire	tracks	leading	into	a	ditch,	

a	vehicle	engulfed	in	flames,	and	Ayotte	and	his	girlfriend	walking	across	the	

road.	 	 When	 one	 officer	 spoke	 with	 Ayotte,	 the	 officer	 detected	 an	 odor	 of	

alcohol	and	observed	that	Ayotte’s	eyes	were	dilated;	Ayotte	admitted	to	having	

operated	the	vehicle.1		Because	Ayotte	appeared	injured,	officers	transported	

him	 in	 a	 cruiser	 to	 the	 hospital	 in	 Augusta	 for	 medical	 attention	 rather	 than	

conducting	 field	 sobriety	 tests	 at	 the	 scene.	 	 A	 sample	 of	 Ayotte’s	 blood	 was	

drawn	at	the	hospital	about	one	hour	and	fifteen	minutes	after	the	crash;	the	

results	 of	 the	 blood	 draw	 indicated	 a	 blood-alcohol	 content	 of	 .078	 grams	 of	

alcohol	per	100	milliliters	of	blood,	with	a	margin	of	error	of	.005	grams.			

         [¶3]		Prior	to	the	trial,	Ayotte	filed	a	motion	to	suppress	evidence	from	

the	blood	draw	and	the	corresponding	blood-alcohol	test	result,	arguing	that	

the	 evidence	 was	 obtained	 without	 valid	 consent.	 	 Ayotte	 testified	 at	 the	

suppression	 hearing	 that	 medical	 staff	 diagnosed	 him	 with	 a	 concussion	 and	

that	his	memory	of	the	incident	and	subsequent	police	interactions	was	“foggy”	

and	“patchy,	at	best.”		He	also	testified	that	he	felt	that	the	officers	had	used	the	


     1		The	officers	testified	that,	when	asked,	Ayotte	rated	himself	a	“5”	on	a	scale	of	intoxication	of	

1-10,	and	he	gave	varying	accounts	of	how	much	alcohol	he	had	consumed	that	evening	and	what	
time	he	had	had	his	last	drink.			
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concern	he	expressed	about	his	girlfriend,	who	also	had	sustained	injuries	in	

the	accident	and	was	transported	separately	to	the	hospital	by	ambulance,	to	

“pressure”	him	into	signing	the	consent	forms.		The	court	denied	the	motion,	

finding	 that	 Ayotte’s	 testimony	 about	 decisions	 he	 had	 made	 regarding	 his	

medical	care	demonstrated	that	he	had	the	capacity	to	make	knowing	decisions	

and	 act	 in	 accordance	 with	 them,	 that	 the	 officer	 had	 reviewed	 the	 requisite	

consent	 forms	 with	 Ayotte,	 and	 that	 Ayotte	 had	 signed	 the	 forms	 freely	 and	

voluntarily.		See	State	v.	Palmer,	2018	ME	108,	¶	2,	190	A.3d	1009.	

      [¶4]		At	trial,	the	State	presented	as	an	expert	witness	a	chemist	from	the	

State	Health	and	Environmental	Testing	Laboratory,	who	opined	that	Ayotte’s	

blood-alcohol	content	had	been	greater	than	.08	at	the	time	the	crash	occurred.		

The	 chemist	 described	 a	 chemical	 analysis	 he	 performed	 called	 “reverse	

extrapolation”	(RE),	which	is	used	to	estimate	a	person’s	blood-alcohol	content	

at	a	given	time	 prior	to	the	taking	of	the	test	sample.	 	On	cross-examination,	

Ayotte	 questioned	 the	 reliability	 of	 the	 expert’s	 RE	 analysis	 by	 introducing	 a	

1985	article	by	Dr.	Kurt	Dubowski,	an	article	the	State’s	expert	acknowledged	

is	an	accepted	authority	in	the	field	of	analytical	chemistry.			

	     [¶5]	 	 During	 closing	 arguments,	 the	 prosecutor	 characterized	 two	 RE	

techniques	described	in	the	Dubowski	article—the	use	of	sweat	pads	and	saliva	
4	

samples	to	determine	a	person’s	level	of	intoxication—as	“outdated.”		Ayotte	

timely	 objected	 and	 argued	 that	 the	 “outdated”	 reference	 was	 a	

mischaracterization	 of	 the	 article	 and	 was	 not	 supported	 by	 the	 chemist’s	

testimony.		The	State	responded	that	it	was	not	commenting	on	the	underlying	

scientific	 validity	 of	 the	 article	 itself,	 but	 rather	 drawing	 on	 the	 expert’s	

testimony	that	sweat	pads	and	saliva	sampling	techniques	were	not	used	in	the	

State’s	lab	and	had	not	been	used	in	Maine	in	thirty	years.		Ayotte	requested	a	

curative	instruction	that	the	State’s	characterization	of	the	Dubowski	article	as	

“outdated”	was	not	supported	by	the	evidence	or	that	the	jury	should	disregard	

the	 characterization.	 	 The	 court	 declined	 to	 give	 an	 instruction,	 noting	 that	

giving	 that	 instruction	 would	 amount	 to	 “injecting	 evidence	 into	 the	 record.”		

The	 court	 did,	 however,	 issue	 the	 standard	 instruction	 that	 the	 attorneys’	

statements	are	not	evidence;	the	jury	alone	decides	how	much	weight	to	give	

expert’s	testimony;	and	if	a	juror	thinks	an	attorney	has	misstated	the	evidence	

or	overstated	the	evidence,	it	is	the	juror’s	recollection	of	the	evidence	and	not	

the	attorney’s	that	the	juror	should	consider.			

      [¶6]	 	 The	 jury	 found	 Ayotte	 guilty	 of	 operating	 under	 the	 influence	

(Class	D)	 29-A	 M.R.S.	§	2411(1-A)(A).	 	 The	 court	 entered	 a	 judgment	 on	 the	

verdict,	sentencing	him	to	five	days	in	jail,	a	$500	fine,	and	a	425-day	loss	of	
                                                                                                    5	

license,	 which	 included	 an	 additional	 mandatory	 suspension	 of	 275	 days	

because	 his	 passenger	 was	 under	 the	 age	 of	 twenty-one.	 	 29-A	 M.R.S.	

§	2411(5)(G)	(2018).		Ayotte	appeals.			

                                         II.		DISCUSSION	

	       [¶7]		On	appeal,	Ayotte	argues	that	the	court	erred	by	denying	his	motion	

to	 suppress	 because	 his	 consent	 to	 the	 blood	 draw	 was	 not	 knowing	 and	

voluntary,	and	by	declining	to	give	 a	curative	 instruction	at	trial	because	the	

State’s	reference	to	the	Dubowski	article	constituted	prosecutorial	misconduct.			

A.	     Consent		

        [¶8]	 	 Withdrawing	 blood	 for	 the	 purpose	 of	 determining	 its	 alcohol	

content	 is	 a	 search	 under	 the	 Fourth	 Amendment,	 and	 therefore	 requires	 a	

warrant	or	the	existence	of	an	exception	to	the	warrant	requirement,	such	as	

consent.2	 	 U.S.	 Const.	 amend.	 IV;	 State	 v.	 LeMeunier-Fitzgerald,	 2018	 ME	 85,	

¶¶	11-12,	21,	188	A.3d	183.		When	consent	is	challenged,	the	State	carries	the	

burden	of	showing,	by	a	preponderance	of	the	evidence,	that	a	person’s	consent	

was	knowingly	and	voluntarily	obtained.		Id.	¶	21;	see	also	State	v.	Bailey,	2012	

ME	 55,	 ¶	 16,	 41	 A.3d	 535.	 	 We	 review	 a	 court’s	 factual	 findings	 regarding	



    2		The	parties	stipulated	at	the	suppression	hearing	that	there	were	no	exigent	circumstances	for	

the	blood	draw.			
6	

whether	 consent	 was	 given	 for	 clear	 error,	 and	 the	 ultimate	 question	 of	

whether	an	individual	consented	to	the	search	de	novo.		State	v.	Nadeau,	2010	

ME	71,	¶	18,	1	A.3d	445.			

      [¶9]		Contrary	to	Ayotte’s	first	contention	that	he	lacked	the	capacity	to	

give	knowing	consent,	the	court	found	that	Ayotte	agreed	to	some,	but	not	all,	

of	the	suggested	courses	of	medical	 evaluation	 and	treatment	at	the	hospital	

and	then	acted	in	accordance	with	those	decisions,	thereby	demonstrating	that	

he	had,	and	was	exercising,	the	capacity	to	make	decisions	knowingly.			

      [¶10]	 	 Regarding	 Ayotte’s	 second	 argument—that	 his	 consent	 was	 not	

voluntary	 because	 he	 felt	 “pressured”	 into	 signing	 the	 consent	 as	 an	

inducement	to	see	his	girlfriend,	who	was	injured	in	the	crash—the	court	found	

that	the	officer	testified	credibly	that	she	had	 reviewed	with	 Ayotte	both	the	

form	authorizing	consent	to	draw	blood	and	the	form	explaining	the	right	to	

refuse	the	blood	draw,	and	that	he	signed	both	forms	freely	and	voluntarily.		In	

the	totality	of	these	circumstances,	the	 court	did	 not	err	when	it	determined	

that	Ayotte’s	consent	to	the	blood	draw	was	knowingly	and	voluntarily	given.			
                                                                                        7	

B.	   Prosecutorial	Misconduct	

      [¶11]		The	State’s	attorney	made	the	following	statement	to	the	jury	as	

part	 of	 the	 closing	 argument,	 which	 drew	 a	 timely	 objection	 that	 the	 court	

sustained.	

    [W]hen	I	was	asking	[the	State’s	witness]	about	some	of	the	other	
    things	that	weren’t	highlighted	by	[Ayotte’s	attorney]	that	were	in	
    that	article,	things	about	analyzing	the	saliva	for	alcohol	content,	
    things	about	analyzing	sweat	pads	to	determine	alcohol	content.		I	
    asked	[the	State’s	witness],	is	that	something	that	you	do?		Is	that	
    something	that	the	lab	is	involved	with?		And	it’s	not.		It’s	outdated	
    methodologies.		Sweat	pads,	saliva	samples.		Those	are	outdated.		
    	
(Emphasis	added.)		Ayotte	argues	that	this	statement	constitutes	prosecutorial	

misconduct	because	it	suggested	to	the	jury,	without	supporting	evidence,	that	

the	Dubowski	article	was,	in	fact,	outdated.			

      [¶12]	 	 We	 have	 often	 noted	 that,	 in	 addition	 to	 their	 adversarial	 role,	

prosecutors	have	a	“special	responsibility”	to	help	 ensure	 a	fair	trial,	State	v.	

Dolloff,	2012	ME	130,	¶	41,	58	A.3d	1032,	“because	they	have	an	obligation	to	

ensure	that	justice	is	done,	as	opposed	to	merely	ensuring	that	a	conviction	is	

secured,”	State	v.	Young,	2000	ME	144,	¶	6,	755	A.2d	547.		When	prosecutorial	

misconduct	is	alleged,	we	assess	whether	there	was	actual	misconduct	and,	if	

so,	 whether	 the	 court’s	 response	 was	 sufficient	 to	 remedy	 any	 resulting	

prejudice.		Dolloff,	2012	ME	130,	¶	32,	58	A.3d	1032.			
8	

      [¶13]	 	 Allegations	 of	 prosecutorial	 misconduct	 must	 be	 viewed	 in	 the	

“overall	context	of	the	trial,”	particularly	“when	the	prosecutor’s	statements	are	

made	in	response	to	the	theory,	argument,	or	provocation”	of	the	defense.		Id.	

¶	44.		A	“mere	.	.	.	misstatement	by	a	prosecutor	at	trial,	or	the	occasional	verbal	

misstep,	will	not	necessarily	constitute	misconduct	when	viewed	in	the	context	

of	the	proceedings.”		Id.			

      [¶14]		In	response	to	alleged	misconduct,	we	have	consistently	accorded	

trial	courts	considerable	discretion	in	whether	to	issue	a	curative	instruction,	

see	State	v.	Marr,	551	A.2d	456,	458-59	(Me.	1988),	and	the	appropriateness	of	

the	curative	instruction,	see	Dolloff,	2012	ME	130,	¶	32,	58	A.3d	1032.		We	have	

also	 held	 that,	 “unless	 there	 is	 prosecutorial	 bad	 faith	 or	 exceptionally	

prejudicial	    circumstances,”	     curative	    instructions—whether	        issued	

immediately	 in	 response	 to	 an	 inappropriate	 comment	 or	 question	 or	

incorporated	into	the	court’s	general	jury	instructions—are	often	sufficient	to	

remedy	 any	 prejudice	 that	 may	 have	 arisen	 as	 a	 result	 of	 the	 prosecution’s	

misstatement.		State	v.	Winslow,	2007	ME	124,	¶	24,	930	A.2d	1080;	see	Marr,	

551	A.2d	at	458-59.			

      [¶15]		Here,	the	State	did	not	commit	prosecutorial	misconduct	when	it	

referred	 to	 the	 sweat	 pads	 and	 saliva	 sample	 techniques	 described	 in	 the	
                                                                                          9	

Dubowski	 article	 as	 outdated,	 and	 it	 is	 not	 a	 close	 call.	 	 First,	 Ayotte	

mischaracterizes	the	nature	of	the	State’s	reference.		From	the	context,	it	is	clear	

that	 the	 State	 was	 referring	 to	 two	 distinct	 methodologies	 mentioned	 in	 the	

article—methodologies	not	used	in	this	case—not	the	underlying	scientific	or	

contemporary	 validity	 of	 the	 article	 itself,	 as	 Ayotte	 incorrectly	 claimed.		

Second,	 there	 was	 no	 arguable	 bad	 faith	 in	 this	 isolated	 utterance,	 nor	 did	 it	

create	“exceptionally	prejudicial	circumstances.”		Winslow,	2007	ME	124,	¶	19,	

930	 A.2d	 1080	 (quotation	 marks	 omitted).	 	 The	 prosecutor	 did	 not	 make	 a	

series	of	inappropriate	statements,	commit	repeated	errors,	or	inject	prejudice	

into	the	trial,	but	rather	briefly	mentioned	two	techniques	that	were	not	used	

in	this	case—techniques	that	the	evidence	demonstrated	had	not	been	used	in	

the	State’s	lab	in	thirty	years—to	distinguish	them	from	the	RE	technique	that	

was	 employed	 by	 the	 State	 in	 this	 prosecution.	 	 Cf.	 Dolloff,	 2012	 ME	 130,	

¶¶	54-58,	 58	 A.3d	 1032.	 	 Although	 the	 court	 declined	 to	 give	 an	 immediate	

curative	 instruction—properly	 noting	 that	 doing	 so	 would	 have	 the	 effect	 of	

injecting	 evidence	 that	 the	 Dubowski	 article	 was,	 in	 fact,	 not	 outdated—the	

court	 did	 reference	 the	 closing	 arguments	 in	 its	 general	 instructions	 and	

informed	the	jury	that	“the	attorneys’	statements	are	not	evidence”	and	that,	to	

the	extent	the	attorneys	disagree	about	facts	or	an	attorney	has	misstated	or	
10	

overstated	evidence,	the	jury’s	reasonable	inferences	and	recollection	should	

control	its	verdict.			

         [¶16]	 	 The	 court’s	 jury	 instructions	 were	 sufficient	 and	 appropriate	

under	 the	 circumstances	 because,	 in	 context,	 the	 prosecutor’s	 closing	

statements	to	the	jury	did	not	misstate	the	evidence,	demonstrate	bad	faith,	or	

create	any	prejudice.			

	        The	entry	is:	

                            Judgment	affirmed.		
	
	    	      	      	      	      	
	
Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Cade
H. Ayotte

Maeghan Maloney, District Attorney, and Alisa Ross, Asst. Dist. Atty. (orally),
Prosecutorial District IV, Augusta, for appellee State of Maine
	
	
Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2016-2294	
FOR	CLERK	REFERENCE	ONLY	
