State v. Anderson1/28/1999
Reporter of Decisions
Argued: January 7, 1999
[§ 1] Jeffrey G. Anderson, Kevin S. Bridges, Bruce Melhorn, Suzanna M. Mercier, and Scott R. Ireland appeal from judgments entered on conditional guilty pleas pursuant to M.R. Crim. P. 11. The pleas preserved for appeal defendants' challenge to an order by the District Court (York, Levy. J.) denying motions to suppress the results of breath analysis tests used to charge the defendants with operating under the influence of intoxicants or with an excessive blood alcohol level, in violation of 29-A M.R.S.A. § 2411 (1996 & Supp. 1998). The defendants argue that the State's failure to offer and to preserve a second breath sample violates their right to due process as guaranteed by the Maine Constitution. Finding no violation of the defendants' due process, we affirm.
[§ 2] In unrelated incidents, all of the defendants were charged with the offense of operating under the influence. Each defendant submitted to blood-alcohol testing through the Intoxilyzer 5000 (Intoxilyzer). None of the defendants requested that an independent breath sample be preserved; the police did not offer to preserve a second sample, and the police did not inform the defendants that they could request the preservation of a second sample. The Intoxilyzer machines were not equipped to allow preservation of a second sample, although evidence presented indicated that they could be modified to do so at a cost of $1,000 per machine.
[§ 3] Anderson, Bridges, and Mercier filed a motion to suppress the results of the Intoxilyzer. The District Court (York, Levy, J.) held a consolidated evidentiary hearing on their motions on July 22, 1997. Ireland and Melhorn also filed motions to suppress the Intoxilyzer results in their cases. On August 27, 1997, the District Court (Biddeford, Janelle, J.) granted Ireland's motion to join and consolidate. On September 25, 1997, the District Court (York, Humphrey, J.) granted Melhorn's motion to join and consolidate.
[§ 4] Finding no due process violations, the District Court (York, Levy, J.) denied the motions to suppress on November 19, 1997. Based on the evidence presented at the hearing of July 22, 1997, the court found:
" he testimony of Dr. Carolyn Howard, Ph.D., an analytical chemist, establishes that the Intoxilyzer 5000 is less accurate than the gas chromatography analysis she performs in her laboratory. The laboratory analysis, unlike the Intoxilyzer 5000, is able to distinguish ethyl alcohol from other volatile compounds such as methanol, toluene and ethers . . . . Because laboratory gas chromatography is more accurate than the Intoxilyzer 5000, Dr. Howard's analysis of 235 breath samples resulted in different test results in approximately 80% of the samples tested. However, deviations were of little legal significance because the number of samples which could be deemed as "not corroborative" under evidentiary standards established by the State of New Hampshire, the jurisdiction in which Dr. Howard performs most of her work, was 2.55%."
[§ 5] The cases then were transferred to Superior Court. On July 17, 1998, Anderson, Bridges, Melhorn, and Mercier entered conditional guilty pleas in Superior Court (York County, Brennan, J.). Ireland entered a conditional guilty plea in Superior Court (York County, Fritzsche, J.) on August 18, 1998. This appeal followed.
[§ 6] This Court reviews rulings on motions to suppress for errors of law or clearly erroneous findings of fact. See State v. Boyington, 1998 ME 163, § 7, 714 A.2d 141, 143; State v. Stade, 683 A.2d 164, 165 (Me. 1996).
[§ 7] Although this case is one of first impression in Maine, the United
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