State of Maine v. Kenneth A. Fay, 130 A.3d 364

On July 6, 2012, Belfast police responded to a report of erratic driving and observed Kenneth Fay slouched, slow to exit his parked car, stumbling and steadying himself on the vehicle.
Officer observed odor of alcohol, slurred/incomprehensible speech, bloodshot/glassy eyes, droopy eyelids, and a half-consumed beer in Fay’s car; Fay admitted drinking and agreed to field sobriety tests.
Fay performed poorly on three field sobriety tests (HGN, heel-to-toe, one-legged stand); officer concluded impairment, arrested Fay, and transported him to jail where he refused intoxilyzer and blood tests.
At trial the State played video of the tests; on cross-examination Fay said he had never been “put through that situation” and the prosecutor asked whether he had prior OUI interactions; defense objected, court sustained objection but denied a mistrial; defense declined a curative instruction.
The jury, using a verdict form both parties approved, found Fay guilty of OUI and separately found he refused the intoxilyzer; Fay was sentenced to 13 days jail, fine, and 90-day license suspension.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for OUI conviction	State: evidence (observations, admissions, poor FSTs, refusal) supports conviction	Fay: FSTs were improperly administered (not strictly NHTSA-compliant), so evidence insufficient	Evidence sufficient; noncompliance with NHTSA affects weight, not admissibility
Motion for mistrial after prosecutor asked about prior OUI interactions	State: question was permissible to rebut Fay’s claim and not asked in bad faith; prosecutor could have introduced prior conviction if answered	Fay: question was prejudicial and warranted a mistrial	Denial of mistrial was not an abuse of discretion — question unanswered, not inherently suggesting conviction, no bad faith shown
Use of jury verdict form regarding refusal enhancement	State: form properly separated OUI verdict and refusal enhancement, protecting jury determination required by Apprendi	Fay: form could have coerced a finding of refusal enhancement after guilty verdict	No obvious error; form explicitly separated guilty/not guilty and asked a separate yes/no on refusal
Standard for evaluation of FST administration	State: variations in administration go to credibility/weight; jury can consider FSTs despite deviations	Fay: strict adherence to NHTSA required for FSTs to have probative value	Court: strict NHTSA compliance not required; deviations bear on weight and are for cross-examination/factfinder to consider

State v. Lowden, 87 A.3d 694 (Me. 2014) (standard for viewing evidence in sufficiency review)
State v. Reed, 58 A.3d 1130 (Me. 2013) (evidence viewed in light most favorable to State on sufficiency review)
State v. Soucy, 36 A.3d 910 (Me. 2012) (field observations and admissions support OUI convictions)
State v. Melanson, 804 A.2d 394 (Me. 2002) (use of sobriety-test evidence in OUI cases)
State v. Jordan, 599 A.2d 74 (Me. 1991) (evidentiary considerations in OUI prosecutions)
State v. Logan, 97 A.3d 121 (Me. 2014) (abuse-of-discretion standard for mistrial denials)
Jamshidi v. Bowden, 366 A.2d 522 (Me. 1976) (defense tactical choices and refusal of curative instructions)
State v. McNally, 922 A.2d 479 (Me. 2007) (limits on verdict forms that could lead jurors down a guilty trail)
State v. Fournier, 554 A.2d 1184 (Me. 1989) (jury should not be required to state reasons for a not-guilty verdict)
State v. Pabon, 28 A.3d 1147 (Me. 2011) (obvious-error standard elements)
State v. Dolloff, 58 A.3d 1032 (Me. 2012) (prejudice affecting substantial rights in criminal appeals)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing penalty beyond statutory maximum must be submitted to a jury)
Alexandre v. State, 927 A.2d 1155 (Me. 2007) (right to jury finding for sentencing enhancements)