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State v. Souther

Supreme Court of Maine

August 22, 2017

STATE OF MAINE
v.
SAMANTHA SOUTHER

          Submitted On Briefs: June 29, 2017

          DarrickX. Banda, Esq., Law Offices of Ronald W. Bourget, Augusta, for appellant Samantha Souther.

          Maeghan Maloney, District Attorney, Tyler J. LeClair, Asst. Dist. Atty., and Mary-Ann Letourneau, Stud. Atty., Prosecutorial District IV, Augusta, for appellee State of Maine.

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

          MEAD, J.

         [¶1] Samantha Souther appeals from a judgment of conviction of operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A) (2016), entered by the trial court (Kennebec County, Fowle, J.) following a jury trial. Souther contends that the court abused its discretion in its pretrial ruling excluding her proposed expert testimony as to her peak blood alcohol concentration at the time that she was driving. Concluding that Souther failed to present the court with any proper basis upon which to admit the proffered evidence, 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." State v. Rourke, 2017 ME 10, ¶ 2, 154 A.3d 127.

         [¶3] On April 12, 2016, Maine State Trooper Greg Stevens responded to a report of an erratic driver. Another driver had called 9-1-1 after seeing Souther's vehicle swerve several times and nearly veer under a truck. Trooper Stevens observed Souther's vehicle drift between lanes and initiated a traffic stop. When he approached Souther's vehicle, he noticed the smell of intoxicants coming from her car and observed that her eyes were glassy and bloodshot, her speech was slurred and deliberate, and she fumbled with her paperwork. He also observed unopened beer cans in the vehicle and an open sixteen-ounce can of beer on the floor between Souther's feet. Trooper Stevens administered three field sobriety tests and found indications of impairment on each test. He arrested Souther for operating under the influence. See 29-A M.R.S. § 2411(1-A)(A).

         [¶4] The complaint against Souther alleged only that she "did operate a motor vehicle while under the influence of intoxicants, " see id. § 241 l(l-A) (A)(1);[1] it did not allege the statutory alternative that she operated "[w]hile having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath, " id. § 2411(1-A)(A)(2). A one-day jury trial was held on December 22, 2016. Prior to trial, Souther proposed a stipulation as to her peak blood alcohol content at the time that she was driving and sought to admit expert testimony that, applying the Widmark formula, [2] a 115-pound female who consumed one sixteen-ounce beer (the size of the open container that was between Souther's feet when she was stopped) with about a 5% alcohol content would have a peak blood alcohol concentration of 0.05%. She argued that this evidence would be relevant to the issue of impairment and noted that Maine law prescribes presumptions of impairment or non-impairment for certain blood alcohol levels. 5ee29-AM.R.S. §2432 (2016). The State asserted that it had already stipulated that it would not seek to admit evidence of a blood alcohol test result[3] and argued that it would confuse the jury "to be given a number" when the only issue was whether or not Souther was impaired.

         [¶5] The court determined that Souther's proposed expert testimony would be excluded. It explained:

[J]ust so that the . . . parties are clear on my finding, it wasn't so much that there wasn't any relevance to this information, I thought it had the potential to confuse the jury and to prejudice one side or the other. I'm not sure that-this is an impairment case, this is not an excessive blood alcohol level case, this is an impairment case. This information might very well-I could see this information helping the [S]tate or helping the defense. And because there's no bench line, there is no objective measure that the jury is going to be told about, the 0.08 or the point whatever the test was that the parties have agreed to be stricken, I think that... under a Rule 403 determination, that analysis, . . . the potential for confusion for either side outweighs any probative value of the evidence.

         Souther then argued that pursuant to 29-A M.R.S. § 2432(1)-which she summarized as providing that "[i]f a person has an alcohol level of 0.05 grams or less of alcohol, it [is] prima [facie] evidence that the person is not under the influence of alcohol"-evidence that Souther's blood alcohol level was below 0.05% is "by statute ... the type of evidence that can be presented because it is informative on the issue of impairment, on whether someone is under the influence." Souther indicated that she would have sought a jury instruction on this point. The court responded:

We're not going to hear any evidence today, as I understand it, as to what the blood alcohol level is, this is an impairment case. If there were a test result, be it 0.09, 0.14, whatever the test result would have been, all of this would have been highly relevant and highly admissible. But this is an impairment case. This determination by the jury is going to be made upon ...

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