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STATE v. DUNN9/5/1984
Thomas S. Dunn appeals from his conviction resulting from a jury trial in the Superior Court (Kennebec County) of operating a motor vehicle under the influence of intoxicating liquor in violation of 29 M.R.S.A. § 1312-B (Supp. 1983-1984). He assigns as error the admission in evidence of his refusal to submit to a blood-alcohol test, the admission of testimony regarding the search and seizure of his automobile, the jury instructions, and the prosecutor's closing argument. The defendant also argues that the evidence was insufficient to sustain his conviction. We affirm the judgment.
From the evidence adduced at trial, the jury would have been warranted in finding the following facts. While on cruiser patrol driving southbound on Route 100-A in Winslow at approximately 12:10 a.m. on July 8, 1982, Officer Gary Bennett of the Winslow Police Department observed a northbound vehicle that did not dim its bright headlights. Officer Bennett flashed his high beams, but the lights of the approaching vehicle still were not dimmed. As the vehicles passed each other, the northbound automobile was over to the far right of the road. Using his rear view mirror, Officer Bennett continued to watch the car and saw it weave over the center line several times. After turning his police cruiser around, Officer Bennett followed the automobile for approximately four tenths of a mile. He observed the vehicle weave over the center line three or four more times before he eventually stopped the defendant.
As the defendant got out of his automobile, he fell back against the door jamb. He could not produce either his driver's license or the motor vehicle registration as requested. Officer Bennett noticed that the defendant's eyes were bloodshot, his balance impaired, and his speech slurred
Once in the police cruiser, Officer Bennett read an implied consent form to the defendant. The officer explained that the defendant had a duty to submit to either a breath or blood test to determine his The defendant nonetheless refused to take either a breath or a blood test. He was then informed of, and waived, his Miranda rights. When asked how much he had to drink, the defendant replied, "Three, four, five, six, seven beers." Officer Bennett then proceeded to the Winslow police station with the defendant.
The defendant elected to proceed pro se at trial. We do not accord the defendant any special consideration because of his pro se status. State v. Gaudette, 431 A.2d 31, 32 (Me. 1981); State v. Furrow, 424 A.2d 694, 696 (Me. 1981). He did not object to any of the evidence or to the prosecutor's closing argument nor did the defendant propose any jury instructions. We thus limit our review to a determination whether there were "obvious errors affecting substantial rights." M.R.Evid. 103(d); M.R.Crim.P. 52(b).
The defendant first asserts that the introduction of his refusal to submit to a breath or blood test violated his right against self-incrimination guaranteed by Art. I, § 6 of the Maine Constitution. Me. Const. art. I, § 6 provides in pertinent part that an accused in all criminal prosecutions "shall not be compelled to furnish or give evidence against himself . . . ." The United States Supreme Court in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), recently upheld a statute permitting the refusal of a blood-alcohol test to be introduced as evidence at trial against a claim that it infringed the federal constitution's fifth amendment right against self-incrimination. We, however, have never had occasion to pass on the question whether the Maine Constitution proscribes use of the refusal at trial as evidence of whether the defendant was under the influence of intoxica
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