STATE v. HERBEST
12/6/1988
-bound lane to the point of impact. Theriault calculated the "drag factor" of the surface of Route 16, and concluded that Herbest crested the hill just prior to the scene of the accident on the wrong side of the road, skidded for over 165 feet, crossing the center line into the east-bound lane and collided with the rear end of Little's east-bound motorcycle. Theriault estimated that Herbest was travelling at 94 miles per hour prior to the impact and 80 miles per hour at the point of impact.
M.R.Evid. 702 provides:
Testimony by Experts. If scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion or otherwise.
The question whether a proffered witness possesses the requisite qualifications
IV.
Prior to trial, Herbest entered a guilty plea to operating a motor vehicle while having 0.10 per cent or more by weight of alcohol in his blood. Because the charge under 29 M.R.S.A. § 1312-B was no longer before the court, Herbest objected to the court's instruction to the jury on the statutory presumptions set out in 29 M.R.S.A. § 1312(5), contending that the jury should not consider the issue of Herbest's being under the influence of intoxicating liquor on the issue of whether he acted recklessly or with criminal negligence without expert testimony as to the effects of alcohol on the individual.
The language of section 1312(5)(C) was amended in 1981 to provide that the presumption that a person with 0.10 per cent or more by weight of alcohol in his or her blood is under the influence can be used "for purposes of evidence in proceedings other than those arising under section 1312-B or 1312-C." P.L. 1981, ch. 468. Even prior to the amendment, we upheld the use of the presumption on the issue of whether a defendant was under the influence, and allowed its consideration by the jury in determining whether there was criminal negligence or reckless conduct in manslaughter cases. State v. Carter, 443 A.2d 958, 961 (Me. 1982); State v. Rhoades, 380 A.2d 1023, 1026 (Me. 1977); State v. Hamilton, 149 Me. 218, 227-29, 100 A.2d 234 (1953).
In instructing the jury on the presumptions of 29 M.R.S.A. § 1312 (5), the trial justice used the "prima facie" language of the statute. M.R.Evid. 303(c), governing presumptions against an accused provides:
(c) Instructing the Jury. Whenever the existence of a presumed
fact against the accused is submitted to the jury, the court in
instructing the jury should avoid charging in terms of a
presumption. The charge shall include an instruction to the
effect that the jurors have a right to
The trial justice's use of "prima facie" language as opposed to "inference" language required by Rule 303(c) was error. State v. Liberty, 478 A.2d 1112, 1116-17 (Me. 1984); Field & Murray, §§ 303.3, 303.4, at 72-76. However, although Herbest objected to the court instructing on the presumptions of 29 M.R.S.A. § 1312(5), his objection did not focus on the language of the instruction, which would have allowed the trial justice to correct the instruction by using permissible inference language. See Liberty, 478 A.2d at 1117. Because of Herbest's failure to direct the court's attention to the prima facie language used, providing the opportunity for the instruction to be cured, we review that part of the instruction for obvious error affecting substantial rights under M.R. Crim.P. 52(b), in the context of the entire instruction. State v. DeLong, 505 A.2d 803, 806 (M
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