STATE OF MAINE v. SAMANTHA SOUTHER
Docket: Ken-16-572
MAINE SUPREME JUDICIAL COURT
August 22, 2017
2017 ME 184
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Reporter of Decisions. Submitted On Briefs: June 29, 2017.
[¶1] Samantha Souther appeals from a judgment of conviction of operating under the influence (Class D),
[¶2] “Viewing the evidence in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt.” State v. Rourke, 2017 ME 10, ¶ 2, 154 A.3d 127.
[¶3] On April 12, 2016, Maine State Trooper Greg Stevens responded to a report of an erratic driver. Another driver had called 9-1-1 after seeing Souther‘s vehicle swerve several times and nearly veer under a truck. Trooper Stevens observed Souther‘s vehicle drift between lanes and initiated a traffic stop. When he approached Souther‘s vehicle, he noticed the smell of intoxicants coming from her car and observed that her eyes were glassy and bloodshot, her speech was slurred and deliberate, and she fumbled with her paperwork. He also observed unopened beer cans in the vehicle and an open sixteen-ounce can of beer on the floor between Souther‘s feet. Trooper Stevens administered three field sobriety tests and found indications of impairment on each test. He arrested Souther for operating under the influence. See
[¶4] The complaint against Souther alleged only that she “did operate a motor vehicle while under the influence of intoxicants,” see
[¶5] The court determined that Souther‘s proposed expert testimony would be excluded. It explained:
[J]ust so that the . . . parties are clear on my finding, it wasn‘t so much that there wasn‘t any relevance to this information, I thought it had the potential to confuse the jury and to prejudice one side or the other. I‘m not sure that—this is an impairment case, this is not an excessive blood alcohol level case, this is an impairment case. This information might very well—I could see this information helping the [S]tate or helping the defense. And because there‘s no bench line, there is no objective measure that the jury is going to be told about, the 0.08 or the point whatever the test was that the parties have agreed to be stricken, I think that . . . under a Rule 403 determination, that analysis, . . . the potential for confusion for either side outweighs any probative value of the evidence.
Souther then argued that pursuant to
We‘re not going to hear any evidence today, as I understand it, as to what the blood alcohol level is, this is an impairment case. If there were a test result, be it 0.09, 0.14, whatever the test result would have been, all of this would have been highly relevant and highly admissible. But this is an impairment case. This determination by the jury is going to be made upon objective evidence presented concerning Ms. Souther‘s condition at the time that she was driving.
[A]nd so . . . I understand the argument . . . but again, Rule 403, I think the potential for confusion to the jury and the prejudicial impact on either party to this case outweighs the probative value. The jury is not going to have any test result or benchmark with which to measure [the expert]‘s testimony, so my decision on that stands but your issue is preserved.
[¶6] The jury found Souther guilty of operating under the influence. The court entered judgment on the conviction and imposed an $800 fine and ordered that her license be suspended for 150 days. Souther timely appealed. See M.R. App. P. 2.
II. DISCUSSION
[¶7] Maine Rule of Evidence 403 provides that a court may exclude otherwise relevant evidence “if its probative value is substantially outweighed by a danger of . . . unfair prejudice [or] confusing the issues.” “We review a trial court‘s rulings on relevance for clear error, and rulings on admissibility for an abuse of discretion.” State v. Maine, 2017 ME 25, ¶ 23, 155 A.3d 871 (alteration, citation, and quotation marks omitted). “A court abuses its discretion in ruling
[¶8] We have upheld the admissibility of expert testimony applying the Widmark formula in State v. Tibbetts, 604 A.2d 20, 21-22 (Me. 1992). In that case, Tibbetts was charged with operating a motor vehicle while under the influence of intoxicating liquor or while having a blood alcohol concentration of 0.08% or more after he crashed his vehicle into a guardrail. Id. at 21. A breath test administered about two hours after the accident measured his blood alcohol concentration at 0.18%. Id. At trial, “[t]here was conflicting evidence as to whether Tibbetts had consumed any alcohol between the time of the accident and the arrival of the trooper.” Id. Over Tibbetts‘s objection, the State presented an expert witness who opined that, according to the Widmark formula and using “estimated values . . . to account for Tibbetts‘s weight and the alcohol he allegedly consumed before and after the accident,” Tibbetts‘s blood alcohol concentration at the time of the accident was between 0.14% and 0.16%. Id. at 21-22. We held that the testimony was relevant and helpful because “Tibbetts‘s blood-alcohol content at the time of the accident was the central question before the jury, and the significance of a 0.18% test result obtained approximately two hours after the accident was an issue of
[¶9] In a case decided after Tibbetts, we held that the trial court did not abuse its discretion by excluding expert testimony applying the Widmark formula. See State v. Grigsby, 666 A.2d 503, 505 (Me. 1995). Unlike in Tibbetts, Grigsby had been charged only with operating a motor vehicle while under the influence of intoxicating liquor, and the State offered no evidence of a blood alcohol test result because a test had not been administered. Id. at 504. Grigsby sought to admit expert testimony “as to a range of the level of Grigsby‘s blood-alcohol at the time of the arrest,” but the expert could not offer an opinion as to Grigsby‘s probable level of impairment based on that range. Id. at 505. The State objected to the proposed testimony pursuant to Rule 403, arguing that “it would confuse the issues in the case,” and the court sustained the objection. Id.
[¶10] On appeal, we concluded that the court did not abuse its discretion by excluding the expert testimony because Grigsby‘s offer of proof was insufficient to establish a link between the Widmark formula evidence and whether Grigsby was, in fact, impaired—which was the only issue for the jury
[¶11] Similar to Grigsby, the sole issue in this case was whether Souther was impaired, and her offer of proof did not state that her proposed expert could testify as to how she would have been affected by the blood alcohol concentration that her expert estimated that she had at the time she was driving. Souther‘s offer of proof therefore was insufficient to establish a nexus between the Widmark-based theoretical blood alcohol level and the issue of impairment.
[¶12] Perhaps recognizing that deficiency, Souther argues that the missing element in her offer of proof is resolved by the application of
[¶13] In sum, because Souther‘s offer of proof did not include a proffer of evidence that would demonstrate how her theoretical blood alcohol content would have affected her mental or physical faculties, see State v. Atkins, 2015 ME 162, ¶ 1, 129 A.3d 952, and because section 2432 is inapplicable, the court did not err in excluding the expert testimony regarding the Widmark formula.4
The entry is:
Judgment affirmed.
Maeghan Maloney, District Attorney, Tyler J. LeClair, Asst. Dist. Atty., and Mary-Ann Letourneau, Stud. Atty., Prosecutorial District IV, Augusta, for appellee State of Maine
Kennebec County Unified Criminal Docket docket number CR-2016-835
FOR CLERK REFERENCE ONLY