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STATE v. HARNISCH4/13/1992
Elaine Harnisch appeals from a judgment of the Superior Court (York County, Brodrick, J.) affirming her conviction in the District Court (Biddeford, Gaulin, J.) of operating a motor vehicle while under the influence of intoxicating liquor or while having 0.08% or more by weight of alcohol in her blood. 29 M.R.S.A. § 1312-B (Pamph. 1991). Harnisch contends that the trial court erred in allowing in evidence and considering the results of a blood-alcohol test performed during the course of her treatment at the hospital emergency room, and further erred in admitting in evidence certain testimony of the treating emergency room physician. We discern no reversible error and affirm the judgment.
On December 6, 1989, at about 5:30 p.m., Kathleen Campbell was driving on Route 9 in Kennebunk and observed a car traveling toward her. As it passed, she saw two children but could not see the driver. She noticed the car drift off the road and saw it strike a utility pole. When Campbell approached the car, she saw the two children and an adult, later identified as Harnisch, who was unconscious in the driver's seat.
Harnisch eventually regained consciousness and was taken to the Southern Maine Medical Center by ambulance. An EMT on the scene testified that as Harnisch spoke, there was a definite smell of alcohol on her breath. At the hospital, Harnisch was treated by Dr. Sarah Moore, an emergency room physician. Dr. Moore ordered a blood work-up to test for blood count, blood sugar, and blood-alcohol levels. The blood-alcohol test, revealing a blood-alcohol level of .22%, was admitted in evidence at trial over Harnisch's objection. Also over Harnisch's objection, Dr. Moore testified at trial concerning observations she made of Harnisch's condition, certain statements Harnisch made to her, and gave an opinion that Harnisch was intoxicated.
Officer Shawn Cavanaugh of the Kennebunk Police Department interviewed Harnisch at her home a few days after the accident. Harnisch admitted to drinking three White Russians before the accident, but insisted that they had not affected her driving.
At trial, Harnisch called an expert who testified that swabbing isopropanol in the area where the blood was taken could affect the test and that the results should be reduced by approximately 16% because of the methods and equipment used in the testing. The court found Harnisch guilty and this appeal followed Harnisch's unsuccessful appeal to the Superior Court.
I.
Harnisch did not sign an implied consent form prior to her blood being tested for alcohol content. See 29 M.R.S.A. § 1312(8) (Pamph. 1991). The test results, however, were not admitted in evidence pursuant to that section. Rather, the tests were administered as part of her hospital treatment, and the results were offered and admitted pursuant to 16 M.R.S.A. § 357 (Supp. 1991). That section provides in pertinent part:
Notwithstanding this section, the result of a laboratory or
any other test kept by a hospital or other medical facility,
which reflects blood-alcohol concentration, shall not be
excluded as evidence in a criminal or civil proceeding by
reason of any claim of confidentiality or privilege and may be
admitted provided that the result is relevant and reliable
evidence if the proceeding is one in which the operator of a
motor vehicle or watercraft is alleged to have operated under
the influence of intoxicating liquor or drugs, and the court is
satisfied that probable cause exists to believe that the
operator committed the offense charged.
In admitting the test results, the District Court implicitly found the results to be relevant and reliable, and tha
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