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State v. Rourke

Supreme Court of Maine

January 17, 2017

STATE OF MAINE
v.
RAYMOND N. ROURKE III

          Argued: November 8, 2016

          Christopher Ledwick, Esq. (orally), Brunswick, for appellant Raymond N. Rourke III

          Jonathan R. Liberman, Dep. Dist. Atty. (orally), District Attorney's Office, Bath, for appellee State of Maine

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

          HJELM, J.

         [¶l] Raymond N. Rourke III appeals from a judgment of conviction for operating under the influence with one prior conviction (Class D), 29-A M.R.S. § 2411(1-A)(B)(1) (2016), entered in the trial court (Sagadahoc County, Horton, J.) after a jury trial. Rourke argues that the court abused its discretion by excluding expert testimony that certain chemicals, if present in Rourke's system, could have resulted in a falsely elevated breath-alcohol test.[1] We affirm the judgment.

          I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt. See State v. Fay, 2015 ME 160, ¶ 2, 130 A.3d 364.

         [¶3] On August 2, 2014, around 2:00 a.m., Lieutenant Frederick M. Dunn of the Topsham Police Department stopped a vehicle for speeding. Dunn smelled the odor of alcohol coming from the car and observed that the driver, Raymond N. Rourke III, had bloodshot eyes. Rourke acknowledged that he had been drinking wine earlier that evening. After a second officer arrived, Dunn administered three field sobriety tests, including the horizontal gaze nystagmus (HGN) test. At Dunn's request, the second officer repeated the HGN test. Rourke showed signs of impairment during the field sobriety tests, and Dunn arrested him for operating under the influence.

         [¶4] After transporting Rourke to the police station, Dunn, who is certified to operate breath-alcohol testing equipment, obtained a breath sample from Rourke using an Intoxilyzer 8000 instrument. A display on the Intoxilyzer indicated "radio frequency interference, " and the instrument shut down. Dunn restarted the Intoxilyzer, and Rourke provided two more breath samples. This time, the Intoxilyzer did not produce an error message, but rather reported a final result of 0.11 grams of alcohol per 210 liters of breath.[2]While chatting with Dunn at the police station, Rourke mentioned that he was a mechanic and had been working at his place of employment that evening before the traffic stop.

         [¶5] In early September 2014, Rourke was charged by complaint with one count of operating under the influence with one prior conviction (Class D), 29-A M.R.S. § 2411(1-A)(B)(1).[3] He pleaded not guilty to the charge. A jury trial was held over two days in January 2016, where the parties presented evidence consistent with the facts described above.

         [¶6] During the trial, Rourke sought to present expert testimony from Patrick Demers, who has training and experience in pharmacy and forensic chemistry. In a report that Rourke had provided to the State before trial, see M.R.U. Crim. P. 16A(b)(2), Demers asserted that "for several hours prior" to Rourke's arrest, Rourke had been working with automotive chemicals containing hydrocarbons, ketones, and toluene, which, when inhaled, can "result in a falsely elevated reading on [an] Intoxilyzer." The State filed a pretrial motion to exclude Demers's testimony pursuant to M.R. Evid. 403, arguing that Demers had no basis to testify as to whether hydrocarbons or similar chemicals were present in Rourke's body when he took the breath test.

         [¶7] At trial, after conducting a voir dire examination of Demers outside of the jury's presence, see M.R. Evid. 705(b), the court granted the State's motion to exclude Demers's testimony about the possible effect of interferent chemicals on Rourke's breath-alcohol test. As the basis for that decision, the court found, among other things, that although Demers had conducted laboratory experiments that demonstrated a correlation between exposure to hydrocarbon chemicals and a positive breath-test result, the experiments involved an Intoxilyzer model that predated the one used in this case. The court also determined that there was only "generalized evidence" about the nature and extent of Rourke's exposure to interferent chemicals, such that a jury could not reasonably determine "the level of [chemicals] in [Rourke's] ... breath or the rate at which he might have been emitting" them when the Intoxilyzer test was administered. The court concluded, based on those findings, that the probative value of Demers's proffered opinion testimony was "drastically outweighed by [its] lack of reliability ... and the potential to confuse the jury."[4]

          [¶8] The jury ultimately returned a guilty verdict, and the court sentenced Rourke to a jail term of ninety days, with all but seven days suspended, followed by one year of probation; a $700 fine; and a three-year license suspension. See 29-A M.R.S. ยง 2411(5)(B) (2016). ...


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