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STATE v. MOULTON12/10/1997
to assess whether a person was under the influence of a drug other than alcohol . . . ." Id. (emphasis added). This legislative history provides strong support for Moulton's position that section 2525's reference to "drugs" does not encompass alcohol.
[ 16] Principles of statutory construction also support this conclusion. Section 2525 uses the conjunctive "and" to describe the mandatory testing provision's applicability to alcohol: " specific category of drug, a combination of specific categories of drugs, or a combination of alcohol and one or more specific categories of drugs . . . ." This language cannot be dismissed as mere surplusage. See Struck v. Hackett, 668 A.2d 411, 417 (Me. 1995) (nothing in statute may be treated as surplusage if a reasonable construction supplying meaning and force is otherwise possible). If alcohol were encompassed in the word drugs, it would be unnecessary and redundant to include the word "alcohol" in section 2525. Indeed, the Legislature's express inclusion of the words "alcohol" and "specific categories of drugs" indicates that the Legislature intended those words to mean different things. Accordingly,
we conclude that the Superior Court erred in predicating its admission of Ballard's HGN testimony about alcohol use on 29-A M.R.S.A. § 2525(2).
[ 17] Notwithstanding the court's mistaken rationale, however, the HGN testimony was properly admitted. Although the court made no independent finding of the reliability of the HGN test, we held recently that we would take judicial notice of the reliability of such tests in making determinations of probable cause to arrest and for purposes of establishing guilt in operating under the influence cases. State v. Taylor, 1997 ME 81, 10, 694 A.2d 907, 910. We may take judicial notice on appeal. See id; see also M.R. Evid. 201(f).
[ 18] We stated in Taylor that "the results of the HGN test should be admissible if a proper foundation is laid for their introduction in evidence. A proper foundation shall consist of evidence that the officer or administrator of the HGN test is trained in the procedure and the test was properly administered." Taylor, 1997 ME 81, 12, 694 A.2d at 911-12. In this case, Ballard testified to these foundational requisites. Accordingly, we take judicial notice of the test's reliability. See id. The court did not err in admitting Ballard's HGN testimony.
The entry is:
Judgment affirmed.
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