Kittery car crash: Driver asks Maine high court to nix drug charges

KITTERY, Maine — A September 2020 crash on Interstate 95 in Kittery, which led to criminal convictions on drug-related charges for the driver, is front and center in a case to be heard by the Maine Supreme Judicial Court.

A southbound driver, identified as Calixte Fleury in briefs filed with the court, veered off the highway in Kittery and struck a tree in an embankment on Sept. 18, 2020. A Maine state trooper responded and later located a combined 24 grams of fentanyl and tramadol both in the car and on Fleury, in addition to over $900, according to the defense’s brief. 

Last December, Fleury was convicted by a trial jury on four charges — aggravated unlawful trafficking of scheduled drugs, unlawful trafficking of scheduled drugs, unlawful possession of scheduled drugs and criminal operating under the influence. He was sentenced in January to three years in jail on the charges, which Fleury and his legal representation have appealed. 

Fleury registered a blood alcohol content of 0.093 per 100 milliliters of blood the night of the car crash in Kittery, according to the prosecution.

Argument to reverse drug trafficking convictions

The defense for Fleury argues that because Maine lawmakers changed the state’s definition of drug trafficking while his case was pending, the subsequent convictions against him are “unconstitutional," according to court records. Michelle King, the attorney leading Fleury’s appeal, is calling on the court to reverse his convictions. 

The state’s highest court is scheduled to hear from the driver’s defense and prosecutors from the Office of the Maine Attorney General on Thursday.

“Here, the evidence of trafficking, as it is commonly known, is scant,” King wrote in her appeal to the Supreme Judicial Court. “Although (Maine State Police) Trooper (Thomas) Pappas concluded that money is an indicia of trafficking drugs (Mr. Fleury had $908 in his possession) Trooper Pappas gave no testimony as to how money is used in drug trafficking, no testimony about denominations of money used in trafficking, and in no way tied the money found on Mr. Fleury to drug trafficking as it is commonly defined. 

“Trooper Pappas admitted that he never witnessed Mr. Fleury selling or dealing drugs, had no witnesses that observed Mr. Fleury selling drugs, nor any video evidence thereof,” King added. “Trooper Pappas further testified that he did not find in Mr. Fleury's car any evidence commonly used in the selling of drugs such as a scale, baggies of any type, or small amounts of drugs in baggies prepared for sale. Absent evidence of trafficking other than the amount of fentanyl possessed, prosecution of Mr. Fleury for unlawful trafficking was constitutionally invalid as applied to him.”

Key to King’s argument is Maine legislators amended the state’s definition of drug trafficking prior to Fleury’s trial.

“Mr. Fleury has been caught in a situation where the Legislature clearly intended not to punish a person for trafficking who is in possession of drugs absent evidence of the sale or distribution of those drugs, but (state statute) is barring him from taking advantage of its ameliorative effects,” the attorney wrote in her brief. “A more just and constitutional result would be application of the amended statute, which would still allow the state the benefit of the permissible inference that a person in possession of a certain quantity of drugs is unlawfully trafficking, but the inference could be overcome by showing, as in this case, a lack of evidence of the selling, manufacturing, or distributing.”

King’s brief for the Supreme Judicial Court was submitted in June.

Maine prosecutors contend law change doesn't apply

The prosecution’s brief was filed by Maine Assistant Attorney General Kyle Myska in August. 

The state countered that the amendment to the state’s laws on drug trafficking, which took effect in October 2021, did not include new language stating the revised statute be applied to pending criminal cases. 

“Therefore, retroactive application of a statutory amendment is barred unless there is clear and unequivocal language included in the amendment stating it is to apply to pending matters,” Myska wrote in the prosecution’s brief.

The prosecution’s brief adds that the question of the new language of the law arose during Fleury’s jury trial last year.

Despite objections from the defense about whether Fleury received due process, the state says the trial court properly instructed the jury assigned to Fleury’s case on the state’s definition of drug trafficking and that the statute was “constitutionally valid as applied” to the driver.

“Given Fleury’s inability to identify a fundamental right or liberty, the application of (state statute) to Fleury’s case did not violate his substantive due process as it was reasonably related to advancing the legitimate state interest of curtailing the opioid epidemic in Maine,” Myska’s brief reads.

The Office of the Maine Attorney General is asking the Supreme Judicial Court to affirm Fleury’s convictions stemming from the fall 2020 incident. 

Oral arguments in the case will be heard Thursday in Bangor at the Penobscot Judicial Center.