 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
STATE v. HARNISCH4/13/1992
t probable cause existed to believe that Harnisch was operating under the influence of alcohol or with excessive alcohol in her blood. We review those implicit findings under a clear error standard. See State v. Enggass, 571 A.2d 823, 824 (Me. 1990) (clear error standard used to review trial court's finding of probable cause in motion to suppress). While conceding the relevance of the results, Harnisch contends that there was insufficient probable cause to believe that she was operating under the influence. Contrary to that contention, even excluding in its entirety the testimony of Dr. Moore (testimony that Harnisch contends is privileged and inadmissible), the evidence showed that Harnisch's vehicle was being operated without a visible driver, the vehicle drifted off the road and crashed into a utility pole, Harnisch had a definite odor of alcohol on her breath, and she admitted to the investigating police officer that she had been drinking. There was ample evidence for the court to conclude that probable cause existed to believe Harnisch was driving while under the influence.
Harnisch also contends that the test results are unreliable and that they should have been excluded on that basis. We disagree. Testimony of the phlebotomist and the lab technician established the integrity of the blood-alcohol test. Harnisch's expert testified that the swabbing of the skin with isopropanol before taking blood might influence the results. That testimony, however, was strongly disputed by the phlebotomist and the court was not bound to accept it. See Bartlett v. Lindahl, 560 A.2d 563, 565 (Me. 1989); Thompson v. Johnson, 270 A.2d 879, 881 (Me. 1970). Harnisch's expert stated that because of the method of testing and equipment used by the hospital, the results should be lowered by approximately 16%. Even accepting the testimony of Harnisch's expert, however, Harnisch's blood-alcohol level would have been .18%-.19%, more that twice the legal limit. Sitting as the trier of fact, the trial court could weigh all the testimony and conclude that the blood-alcohol test result was sufficiently reliable to be admitted under section 357.
II.
Harnisch also contends that the testimony of Dr. Moore, the physician who treated her in the emergency room following the accident, was improperly admitted in evidence over Harnisch's claim of privilege. M.R.Evid. 503 provides generally because the physical or mental condition of Harnisch, i.e., her state of sobriety, was an element of her defense.
It is, however, unnecessary for us to determine whether Dr. Moore's testimony in whole or in part was subject to privilege, or was nevertheless admissible pursuant to M.R.Evid. 503(e)(3). Our review of the record leads us to conclude that it is highly probable that her testimony did not affect the judgment, and that its admission, if error, was harmless. See State v. True, 438 A.2d 460, 467 (Me. 1981). Dr. Moore's testimony was cumulative. Evidence from other witnesses established that Harnisch's vehicle was traveling on Route 9 without her appearing to be driving, that it drifted off the road and struck a utility pole, that there was a definite odor of alcohol on her breath, that she admitted to having three drinks prior to the accident, and that she had at least .18%-.19% by weight of alcohol in her blood while she was in the hospital following the accident. Dr. Moore's testimony added little to that evidence. If there was error in admitting her testimony, the error was harmless.
The entry is:
Judgment affirmed.
All concurring.
Page 1 2 Maine DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|