ORDER ON FENDING MOTIONS
William R. Stokes, Justice
the Court are the following motions filed by the Defendant on
August 1, 2018: (1) Motion to Suppress (Fruits of Search
Warrants); (2) Motion to Suppress (Consent Issue); (3) Motion
in Limine to Exclude Medical Records & Blood Sample
Obtained from Hospital and; (4) Motion in Limine to Exclude
HETL (Health and Environmental Testing Laboratory) Alcohol
Testing Results & Testimony of Stephen J. Pierce. An
evidentiary hearing on the motions was held on September 26,
2018 at which the Court received the testimony of the
following witnesses called by the State: Joseph Dobbins;
Julie Beaupre; Amanda Murphy; Stephen Pierce; Michele Vining;
Deputy Sheriff Adam Bacon, and; Sgt. Frank Hatch. The Court
also received the testimony of John Godfrey called by the
Defendant. State's Exhibits 1-6 were admitted into
evidence. Defendant's Exhibits 2 & 3 were also
admitted. Jury selection in this case is
scheduled for November 8 and 9, 2018, with trial set to begin
on November 26, 2018.
upon the evidence presented at the hearing, and after
considering the arguments of the parties, the Court makes the
following findings of fact.
the evening of May 12, 2017, a motor vehicle crash occurred
in Mount Vernon. The Defendant, Tyler Goucher, was the
operator of the vehicle that was involved in the crash. Two
passengers were in his vehicle at the time. One of the
passengers, Ethan Russell, was seriously injured and law
enforcement personnel quickly learned that the crash could
potentially involve a fatality.
County Deputy Sheriff Adam Bacon was one of the law
enforcement officers who responded to the crash scene. He
later responded to the Central Maine Medical Center (CMMC) in
Lewiston to collect clothing from the Defendant and obtain
his consent to take photographs of his injuries. The
Defendant was cooperative and gave his consent by scribbling
his signature on the consent form. See State's
time Deputy Bacon arrived at the crash scene, ambulance
personnel and other law enforcement officers were already
there. Michele Vining, an advanced EMT with Winthrop
Ambulance, was with the first ambulance to arrive and she was
assigned to attend to the Defendant. The Defendant was alert,
talking, breathing, and very concerned about his friends and
wanted to know if they were "okay." Once the
Defendant was "cleared" for his spinal evaluation
he was able to walk to the ambulance on his own power.
Ms. Vining was assessing and evaluating the Defendant, Sgt.
Frank Hatch of the Kennebec County Sheriff's Department
was also there for at least part of the time. Sgt. Hatch had
activated his digital recorder for some period of the time
while he was in the Defendant's presence. That recording
was admitted into evidence as State's Exhibit 6. It has a
total recoding time of 28:27. The court has listened to the
recording twice in its entirety and certain portions of it
Defendant was cooperative, very talkative and told Sgt. Hatch
that he was the driver of the vehicle, that he was
"ok" to drive, that he and his friends had been at
the Weathervane Restaurant, that he had three (3) drinks
including two beers and one "Grateful Dead," that
he was going 50-55 mph, and that just prior to the crash he
felt his truck "kick," for which he
"corrected." Later in the recording he volunteered
to Sgt. Hatch that had "hit the brakes hard," and
the truck "slid out of control" when the brakes
Defendant was very concerned about the welfare of his two
friends and he firmly, loudly and repeatedly pressed both Ms.
Vining and Sgt. Hatch for information about their condition.
He specifically asked how the one in the ditch (Richard Hall)
and the one in the road (Ethan Russell) were doing. Both Ms.
Vining and Sgt. Hatch declined to give the Defendant much
information about his friends' well-being, claiming that
they did not know any information because they were focusing
their attention and efforts on the Defendant.
about 7:03 of the recording, Sgt. Hatch asked Ms. Vining:
"If I get a blood kit, can you pull that?" Ms.
Vining initially responded by asking something to the effect
if the kit specified the order of the blood draws because she
was not "familiar with drawing blood for stuff like
that." At the hearing, she clarified that she had not
used a HETL blood kit prior to doing so on May 13, 2017. She
agreed to do the blood draw as requested by Sgt. Hatch.
of the recording, Sgt. Hatch can be heard telling other law
enforcement officers at the scene: "I need a blood
kit." At 9:27 of the recording, Sgt. Hatch and another
officer can be heard talking about the expiration date on the
kit and confirming that it was still valid until 2018. At
approximately 11:00 of the recording, Sgt. Hatch and Ms.
Vining can be heard discussing/examining the contents of the
kit. At 11:35, Sgt. Hatch said: "Tyler, she's gonna
- I'm going to ask her to draw up some blood out of you,
okay? Do you have any issues with that?" The Defendant
immediately replied: "No."
the next several minutes, Ms. Vining and Sgt. Hatch reviewed
the directions contained within the blood kit. Ms. Vining
drew the required number of samples, labelled them, signed
the forms presented to her by Sgt. Hatch and gave the samples
to Hatch for re-packaging and sealing. Sgt. Hatch temporarily
stored the kit in his locked cruiser. Later, he took the
sealed kit to the HETL drop box at the Augusta Police
Department. The Defendant was not asked to sign any consent
blood sample taken from the Defendant by Ms. Vining inside
the ambulance on May 12, 2017 was received at HETL on May 15,
2017 from the drop box. See State's Exhibit 2.
Sgt. Hatch believed that the Defendant had consented to the
taking of his blood at the scene. On May 17, 2017, however,
counsel for the Defendant sent a letter to Stephen Pierce at
HETL (via fax and U.S. Mail) stating that the Defendant
"now hereby withdraws consent to any further examination
and/or testing of his blood." See Letter
attached to Search Warrant Affidavit in Docket # SW-17-0053.
letter prompted the submission of an application for a search
warrant authorizing the examination/testing of the blood
sample by HETL. The request was supported by the Affidavit of
Sgt. Scott Mills, II, of the Kennebec County Sheriff's
Office. He asserted in the affidavit that he was one of the
deputies who had responded to the scene of a crash on the
North Road in Mount Vernon on May 12, 2017 involving a 2008
Chevy Silverado pick-up truck being operated by the
affidavit further alleged that Ethan Russell was dead at the
scene and Richard Hall was "severely injured." Sgt.
Mills described the crash scene as involving approximately
300 feet of skid marks showing the truck leaving the road in
the opposite lane of travel, rolling over, striking a tree
and coming to rest against a telephone pole. The damage to
the truck was described as "catastrophic," with the
rear axle and the pick-up bed having been separated from the
rest of the truck. Debris from the crash was strewn over a
considerable area. All three occupants of the truck were
ejected. Based on the scene it appeared that speed was a fact
in the crash.
18-pack of Bud Light beer was found under the truck. The
affidavit contained some of the information obtained by Sgt.
Hatch from the Defendant on the night of the crash,
including: that he was the driver of the vehicle; that he and
his two friends had been drinking alcohol at the Weathervane
prior to the crash; that the Defendant was the "most
sober, so he drove;" that he was speeding trying to
catch up with his other friends who had left earlier in
another vehicle. Sgt. Mills opined that operating under the
influence "appear[ed]" to be factor in the crash.
affidavit recounted that a blood sample had been drawn from
the Defendant at the crash scene under the belief that he had
consented to the blood draw, but that his attorney's
letter had subsequently been sent to HETL, "professing
to withdrawn consent for testing."
the affidavit averred that the Defendant had been taken to
CMMC in Lewiston where both blood and urine samples had been
obtained from him. The affidavit recited that an earlier
warrant had authorized the State to seize those blood and
urine samples from CMMC for testing by HETL.
warrant was issued on May 17, 2017. (SW-2017-0053) (E.
Walker, J.). The blood sample was tested at HETL and a report
(certificate) was issued showing a BAC of 0.217%.
See State's Exhibit 2. The HETL report for this
sample documents a collection time of the sample of 23:01
(11:01 p.m.) on May 12, 2017. Id.
noted earlier, the Defendant was transported by ambulance to
CMMC in Lewiston. Phlebotomist Joseph Dobbins had no
independent recollection of names or particular dates, but he
did recall the night of this "trauma" incident, and
he did recall drawing blood in connection with this matter.
He also recalled that he was told to "hold" any
samples pending the issuance of a search warrant.
Dobbins testified that it was important for him, and other
phlebotomists, to follow specific protocols with respect to
the drawing of blood samples in order to prevent
cross-contamination and because medical staff depend upon the
accuracy and reliability of results for medical treatment
purposes. The patient's wrist-band is bar-coded. All
labels associated with that patient are also bar-coded and
the labels must match the patient's wrist-band. The
records created and maintained by the hospital contain
information as to who performed the blood draw, who sent the
samples to the laboratory and who at the laboratory received
the samples. This is all done by means of the bar-code
scanning system utilized by CMMC.
Dobbins testified that in any trauma case he would always use
an iodine, not an alcohol, swab to "prep" the site
of the blood draw. He was not familiar with the blood
evidence collection kit issued by HETL, as he had never used
one, and he was not familiar with the rules promulgated by
HETL/DHHS regarding forensic testing of a blood sample. Once
Mr. Dobbins, or any of the phlebotomists at CMMC, completes a
blood draw on a patient and has properly labeled and scanned
it, it is sent to the laboratory by means of a pneumatic
tube. The phlebotomist has no involvement in the laboratory
Beaupre is the clinical supervisor at the CMMC laboratory and
has held that position for four years. Her duties include the
overall supervision of the chemistry laboratory, insuring
that the laboratory records are up-to-date, and maintaining
the laboratory's accreditation by the American College of
Pathologists. The laboratory is inspected every two years in
order to maintain its accreditation.
CMMC laboratory is equipped with two Ortho 5600 Clinical
Diagnostic Analyzers that provide results of chemical
analysis on samples submitted to the laboratory as ordered by
a physician. The machines are subject to quality controls on
a daily basis. The equipment is nationally recognized as
being reliable in the hospital setting. The machine will
generate a "problem log" if any error in the
testing has been detected, and if a problem has been
identified the results will not be used. Ms. Beaupre
testified that she reviews the maintenance logs for the month
as well as for each shift and she did so for May 13, 2017.
able to locate and review laboratory records pertaining to
the Defendant for that date. She testified that everything
about the equipment and the test results were
"acceptable." Based upon her examination of
hospital/laboratory records, she was able to determine that
Joseph Dobbins was the phlebotomist who drew the
Defendant's blood sample at CMMC on May 13, 2017. She
further testified that the bar-coding system employed at CMMC
will "tag" the person who input the data (e.g., who
took the sample; who received it at the lab) as well as the
physician who ordered the test.
Beaupre personally has used the Ortho Diagnostic Analyzer.
She explained that the equipment will perform general
chemical analysis for blood alcohol content. When a blood
sample is received at the laboratory, one of the technicians
will scan it, "spin" it down and load the sample
onto racks, at which point the Ortho Analyzer "reads it
automatically." The analysis is performed on blood serum
or plasma after it has been "spun" or separated in
a centrifuge, and not on whole blood. If an error occurs
during the analysis, the "auto-verifier" flags the
error. The process would then stop and the results of the
testing would not be released to the patient's chart
(record). If no error is identified during the testing
process, the result of the analysis is automatically released
to the patient's medical record and is available for
review by the patient's treating physician.
Beaupre was not familiar with the standards for forensic
testing of blood samples as adopted by HETL. She testified
that the Ortho Diagnostic Analyzer was used for medical and
hospital purposes, not for forensic purposes. She
acknowledged that CMMC does not use Dual Column Gas
Chromatography to analyze blood samples. Based on her review
of the hospital/laboratory records, created and maintained in
the regular course of the business of CMMC, she testified
that the report of the analysis of the blood sample taken
from the Defendant at the hospital on May 13, 2017 showed an
ethanol level of 228 mg/dl (milligrams/deciliter).
See State's Exhibit 1.
Murphy (f/k/a Amanda Webb) was employed as a medical
laboratory technician at CMMC until the end of May 2017. She
worked the third shift from 8:30 p.m. to 7:00 a.m. She
explained the procedure used at CMMC while she worked there
for the laboratory analysis of patient samples. Briefly
described, that process starts when an authorized treatment
provider has ordered tests. That order would be entered into
the computer system using a bar-code scanning process. Once
the sample was received at the laboratory, it would be
scanned in there, "spun" down and then placed on
the analyzer. The machine runs the sample using the
preprogramed bar code scan to identify which tests are to be
also described the auto-verifier software that will flag an
error and will not release the test results to the
patient's chart if an error is detected. On the other
hand, the auto-verifier will automatically release the test
results to the patient's record if no error is
Murphy did not have an independent memory of receiving the
Defendant's blood sample on May 13, 2017, but based on
information supplied to her by management personnel at the
CMMC laboratory, she was able to determine that she was the
technician who received the sample and "ran" the
the other witnesses from CMMC, Ms. Murphy was not familiar
with HETL testing standards or rules. She confirmed that the
hospital laboratory conducts its testing on blood plasma and
not whole blood, and that such testing is for medical, not
16, 2017, Sgt. Mills applied for a search warrant for the
seizure of the blood and urine samples obtained from the
Defendant at CMMC, and copies of the laboratory test results
of the hospital's analysis of those samples. The
affidavit in support of that warrant contained the same
substantive information that has already been described with
respect to the affidavit to test the Defendant's blood
sample taken at the crash scene. The warrant was issued on
May 16, 2017. (SW-2017-0052) (Stokes, J.)
warrant was executed on the same day it was issued and the
blood sample was received by HETL on May 17, 2017. The blood
sample was analyzed and a report (certificate) was issued
showing a BAC of 0.202%. See State's Exhibit 3.
The HETL report documents a collection time for this sample
of 00:12 (12:12 a.m.) on May 13, 2017. The laboratory report
from CMMC, however, documents a collection time of 00:16
(12:16 a.m.) on May 13, 2017. See State's
Stephen Pierce was a chemist at HETL for 24 years and retired
from that position in 2017. While employed there he was
certified every six months to conduct blood alcohol testing.
He received the sample of the Defendant's blood taken at
the crash scene by Michele Vining and the blood sample taken
at CMMC and tested both samples on the same day, i.e. May 22,
2017. Certificates of alcohol analysis were issued on May 23,
2017. See State's Exhibits 2 & 3.
Pierce testified that HETL uses a head space gas
chromatograph to test for blood alcohol content, which is
recognized as an accurate and reliable method. The test is
performed on whole blood. The samples were tested in a
"batch" with two portions drawn out and put in
sealed head space vials for testing by the head space auto
analyzer. There were standards and controls that were used to
crosscheck that the equipment was operating properly. Pierce
had read the affidavit of Mr. Godfrey, the defense expect,
and denied ...