Fоr the first time we must decide whether the result of a breath test performed by use of an Alcohol Level Evaluation Roadside Tester (ALERT) device is admissible at trial on a сharge of operating a motor vehicle while under the influence of intoxicating liquor (OUI), 29 M.R.S.A. § 1312-B (Pamph.1988). Robert Ifill appeals his conviction entered on a jury verdict in thе Superior Court (Somerset County, Chandler, J.). He challenges the submission, over his objection, of testimony concerning the result of an ALERT test administered by the arresting officer, the admissiоn of an exhibit to the jury and the sufficiency of the evidence. Because we agree with If ill’s first challenge, we vacate the judgment.
I.
According to his testimony at trial, Statе Police Officer Robert Rowe was stopped at a gas station near the Newport exit of 1-95 on October 4, 1986. A motorist pulled in and told the officer that he had been harassed by a rental truck travelling close behind him at speeds up to 90 m.p.h. Rowe relayed this information, as well as the license plate number of the truck, by radio to State Police Officer Robert Williams who was running radar in Pittsfield.
A few minutes later, Williams stopped the same truck, which was being driven by defendant Ifill. Williams smelled alcohol from inside the cab but wasn’t sure the odor was coming from Kill's breath. Williams told Ifill to follow him back to his cruiser, and once both were inside, found that the odor was in fact coming from Hill’s breаth. He noticed that Kill’s face was slightly red, that his eyes were bloodshot and glassy, that his speech was thick, and that he misspoke several times. Kill said he had had two beers two hours earlier. Asked to recite the alphabet, Kill stopped midway through it and repeated it incorrectly twice.
Williams testified that he told Kill he believed Kill was under the influence but offered to give him an ALERT test. He further testified that the ALERT test is an orange box that a person blows into and that registers “pass” or “fail.” Although the test does not register a precise number, a “fail” reading indicates a blood alcohol content above .10% (the statutory level of excessive blood alcohol in 1986, reduced to .08% by P.L.1987, ch. 791, § 18). Williams was not sure how the machine works but knew that it is calibrated by
A motor vehicle operator must submit to a blood or breath test to determine blood-alcohol level upon probable cause for OUI. 29 M.R.S.A. § 1312 (1978 & Pamph.1988). Any “sеlf-contained breath-alcohol testing apparatuses” shall be approved by the Department of Human Services. The ALERT instrument is not approved. Nevertheless, Ifill’s pretrial motion to exclude testimony about his performance on the ALERT test was denied by the court on the day of trial. The court concluded that the ALERT test is аdmissible, like the heel-to-toe test, finger-to-nose test or alphabet test, as a field sobriety test. Because there was no official blood or breath test, and bеcause Ifill’s refusal to take one was offered against him, the court emphasized in jury instructions the difference between the ALERT test and the test required by Section 1312.
Follоwing a guilty verdict, Ifill moved for a new trial on the ground that an inadmissible statement of Ifill’s driving record had been submitted to the jury as part of the Uniform Traffic Ticket and Complaint (UTT). Despite the fact both parties and the court had agreed that the record portion of the exhibit would be excised, the record was submitted to the jury. The court deniеd the motion, nevertheless, on the ground that the error was harmless.
II.
We have previously considered the ALERT test in an appeal of an administrative suspension, but therе the test was not directly challenged.
See Mancini v. Secretary of State,
The Supreme Court of North Dakota has described in detail the imprecise nature of the ALERT test:
The ethanol sensor used in the A.L.E.R. T. instrument is manufactured by Tagu-chi Gаs-Electric Transducer (TGS). Quoting from its brochure, the manufacturer ... states:
The characteristics of the TGS are not at present sufficiently reproducible to make it suitаble for use in laboratory or analytical instruments where high accuracy is required
[[Image here]]
Quoted in Erwin, 2 Defense of Drunk Driving Cases § 24.11 (3d ed. 1987) (emphasis added [by court])_[T]he A.L.E.R.T. unit’s response is not specific for ethanol and could possibly emit a “Fail” signal duе to the presence of some other chemical substance. While a quick and convenient tool for establishing probable cause for an arrest, the A.L.E.R.T. screening test can be unreliable. Not only can the test register an inaccurate percentage of alcohol present in the breath, it may also be inаccurate as to the presence or absence of any alcohol at all. See State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987). Therefore, because of the questionable accurаcy of the A.L.E.R.T. testing instrument, it lacks the indicia of scientific reliability necessary to provide an evidentiary basis for establishing that an individual was driving in violation of [North Dakota’s OUI stаtute].... See Erwin, 2 Defense of Drunk Driving Cases § 24.11(1) for a discussion of studies done in evaluatingthe accuracy of the A.L.E.R.T. breath testing unit.
State v. Schimmel,
The North Dakota court concluded, however, that since the State presented evidence that the defendant had taken two blood alcohol tests with the results above .10%, and because the defendant was сharged with excessive blood alcohol (EBA), the prejudicial effect of testimony concerning the ALERT test was negligible. The admission of that testimony was thus harmless error.
Id.
In contrast, the Supreme Court of Iowa has determined that use of a preliminary breath test at trial on an operating under the influence charge (OUI) is reversible errоr.
State v. Deshaw,
III.
In the casе at bar, the trial court determined that the result of the ALERT test should be admitted like any other field sobriety test. We disagree. Tests of physical dexterity, coordination, speech or memory provide observations from which the jurors may draw their own conclusions about a defendant’s sobriety. The ALERT test, on the other hand, is meaningless to a jury unlеss the pass-fail result is perceived as scientifically reliable. It is precisely that false aura of reliability that renders unavailing a trial court instruction that the jury neеd not accept the test result. Despite the existence of other evidence sufficient to establish alcohol-related impairment, we are unable to conclude to a high probability that the error in admitting evidence of the results of the ALERT test did not affect the jury’s verdict.
See State v. Reeves,
IV.
Ordinarily we would find it unnecessary to discuss the error in submitting the unre-dacted State’s exhibit to the jury because it is unlikely to recur. We discuss the ques-tion only to reject the State’s suggestion that the error is not preserved. Ifill made clear his objection and the State agreed to excise the inadmissible portion. The record reflects no opportunity thereafter for defense counsel to examine the exhibit. The responsibility for its redaction remained with the prosecution.
We reject Ifill’s challenge to the sufficiency of the evidence. Accordingly, we remand for further proceedings.
The entry is:
Judgment vacated.
Remanded for further proceedings consistent with the opinion herein.
All concurring.