STATE v. KENNEDY
4/28/1995
Peter Kennedy appeals from a judgment entered in the Superior Court (Penobscot County, Mead, J.) following a jury verdict finding him guilty of the charge of operating with excessive blood-alcohol level or under the influence, 29 M.R.S.A. § 1312-B (Pamph. 1994). Kennedy contends that the trial court erred by admitting in evidence an incomplete blood-alcohol test, and erred by not providing specific instructions as to how to evaluate expert testimony. We conclude that the trial court neither abused its discretion by its admission of the incomplete blood-alcohol test, nor issued erroneous instructions, and therefore, affirm the judgment.
I.
When Kennedy was stopped at a roadblock in Bangor in September 1992, Bangor Police Office Brian Veysey smelled alcohol and observed Kennedy's eyes were red and glassy. Veysey asked Kennedy to get out of his car and noticed that Kennedy was unsteady on his feet. This prompted Veysey to administer several field sobriety tests, all of which Kennedy performed poorly. Kennedy was then transported to the Bangor Police Station where Veysey administered a breath alcohol test using a Intoxilyzer 5000 machine. The first breath sample returned a reading of .194%. The machine then registered results on the second, third and fourth samples but noted the breath samples were "insufficient." On the fourth try, the machine directed that another test be administered. Officer Veysey chose not to administer another test.
Title 29 M.R.S.A. § 1312(6) (Pamph. 1994) provides in pertinent part:
law enforcement officer may test the breath of any person
whom there is probable cause to believe has operated or
attempted to operate a motor vehicle while under the influence
of intoxicating liquor
(Emphases added). Officer Veysey testified that the machine he used to test Kennedy's breath was a machine certified by DHS. The applicable DHS regulations provide in part that a complete blood-alcohol test must consist of two separate breath samples, the results of which are within .02% of each other, and further provide that if the first two samples do not fall within this range, the person administering the test should take more samples until two tests comply. If four separate samples are taken, with no two falling within that range, a different test should be administered.
Compliance with administration requirements is not an absolute prerequisite to admission. See State v. McConvey, 459 A.2d 562, 568 (Me. 1983) (finding "a clear expression of a legislative policy which has existed since the enactment of the implied consent statute, that is, that blood-alcohol test results are admissible unless unreliable"). The question in the instant case, then, is whether the test results were sufficiently reliable to be admitted.
James Young, a forensic chemist, testified that the result was reliable with qualifications. The trial court thus had competent evidence before it from which it could determine that the first result was sufficiently reliable to be relevant, and that the expert's testimony would assist the trier of fact in evaluating it. See State v. Williams, 388 A.2d 500, 504 (Me. 1978). On this record, the trial court did not err or abuse its discretion in the admission of the evidence. See M.R.Evid. 402 (relevant evidence admissible except as limited by constitution, statute, or rules), M.R.Evid. 403 (relevant evidence may be excluded if probative value outweighed by danger of unfair prejudice, confusion of the issues, misleading the jury, or by undue delay, waste of time, or needless presentation of cumulative evidence), and M.R.Evid. 702 (allowing testimony by a qualified expert pertaining to scientific evidence
Page 1 2 Maine DUI Attorneys