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State v. Minor2/20/2002
Michael Minor appeals from a judgment of conviction of operating a motor vehicle while under the influence of intoxicants (OUI), 29-A M.R.S.A. § 2411 (1996), [FN1] entered after a jury trial in the Superior Court (Knox County, Atwood, J.). Minor contends that the court should have allowed him to depose his treating physician in New Jersey pursuant to M.R.Crim. P. 15. We are unpersuaded by Minor's contention and affirm the judgment.
FN1. Section 2411 states, in pertinent part, the following:
1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle:
A. While under the influence of intoxicants; or
B. While having a blood-alcohol level of 0.08% or more.
[ 2] On November 19, 1999, Minor was arrested and charged with OUI after failing to properly complete a number of field sobriety tests. While at the police station, Minor submitted to an intoxilyzer test that measures blood-alcohol level. The intoxilyzer test showed Minor's blood-alcohol level to be 0.12%.
[ 3] On January 8, 2001, the day of the call of the criminal trial list in the Superior Court, Minor filed a motion to take a telephonic deposition of his treating physician pursuant to M.R.Crim. P. 15(a). [FN2] He alleged (1) that his physician, who resided in New Jersey, would likely be unavailable due to the inconvenience and expense of having to attend a trial in Maine; (2) that the doctor would testify that Minor suffered from, and was being treated for, recurrent heartburn, acid reflux, and a hiatal hernia that episodically caused him to regurgitate small amounts of stomach contents into his mouth; (3) that Minor suffered from these conditions on the night of his arrest, thus affecting the blood-alcohol test; and, (4) that the doctor's testimony was necessary to prevent a failure of justice.
FN2. M.R.Crim. P. 15(a) provides the following:
If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is
material and that it is necessary to take the witness' deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment, information or complaint may upon motion and notice to the parties order that the witness' testimony be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place.
[ 3] The Superior Court (Marsano, J.) denied Minor's motion, and postponed the trial until April of 2001. The court stated that Minor could make the same request to take the deposition by telephone to the trial court in April, but cautioned Minor that if his motion was again denied, he should be prepared at that time for his trial with a Maine expert.
[ 4] On April 2, 2001, Minor again moved to take a telephonic deposition of his treating physician in New Jersey. The motion was again denied (Atwood, J.). The one-day trial took place on April 19, 2001.
[ 5] Minor claimed at trial that he failed the intoxilyzer test only because he suffered from acid reflux and a hiatal hernia. He testified that his condition caused him to regurgitate stomach contents into his mouth and that on the night he submitted to the intoxilyzer test he regurgitated about five minutes before the test. The arresting officer, who also administered the intoxilyzer test, testified that the test *97 measured deep-lung air and that, if a person regurgitated stomach contents into their mouth up to fifteen minutes before taking the test, the results might show a higher blood-alcohol level due to residual-mouth alcohol content. The officer also testified, however, that he watched Minor for the entire time prior
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