State v. Munsey

• Decision Date: 05 November 1956
• Citation: 127 A.2d 79,152 Me. 198
• Parties: STATE of Maine v. Lester G. MUNSEY.
• Court: Maine Supreme Court

Page 79

127 A.2d 79

152 Me. 198

STATE of Maine v. Lester G. MUNSEY.

Supreme Judicial Court of Maine.

Nov. 5, 1956.

George M. Carleton, Bath, for plaintiff.

Harold J. Rubin, Bath, for defendant.

Before FELLOWS, C. J., WILLIAMSON, WEBBER, BELIVEAU and TAPLEY, JJ., and MURRAY, Active Retired Justice.

WEBBER, Justice.

The respondent here was charged with operation of a motor vehicle while under the influence of intoxicating liquor. A jury heard the evidence and adjudged the respondent guilty. During the course of his charge to the jury the presiding justice gave the following instruction:

'Now collaterally there has been comment in this case relative to the presence or absence or the circumstances involved as regards a blood test, and I want to disabuse your mind of one thing made in argument. The statute or the law in the case and applicable to these cases does provide that if a blood test is taken that under certain circumstances with which you are not now concerned, the result of that test is admissible in evidence and goes in with all the other facts to aid you in determining the issue. There is no law in Maine which gives the accused the right to have a blood test taken. There is no obligation on the part of the arresting officer to provide for a blood test. There is no obligation on the part of an arresting officer to run any errand for an accused. Anything that the officer does or does not do under those circumstances is purely a mater of courtesy, if you care to call it that, or an accommodation to an accused. So that I would have to tell you as a matter of law in the instant case no rights of this accused have, according to the evidence as we have it here, been violated in that regard.'

Exceptions were taken to this portion of the charge. The respondent contends that he had a 'right to have a blood test taken', which right, he argues, was vouchsafed to him by the statute dealing with the prima facie effect of blood tests in such cases.

The statute in question is R.S.1954, Chap. 22, § 150. The pertinent portion of the statute reads as follows:

'Evidence that there was, at that time, 7/100%, or less, by weight of alcohol in his blood, is prima facie evidence that the defendant was not under the influence of intoxicating liquor within the meaning of this section. Evidence that there was, at that time, from 7/100% to 15/100% by weight of alcohol in his blood is relevant evidence but it is not to be given prima facie effect in indicating whether or not the defendant was under the influence of intoxicating liquor within the meaning of this section. Evidence that there was, at the time, 15/100%, or more, by weight of alcohol in his blood, is prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section. All such tests made to determine the weight of alcohol in the blood shall be paid for by the county wherein the violation of the provisions of this section was alleged to have occurred. [Blood tests the expense for which has been paid for by, or charged to, the county or state may be admissible in evidence. Repealed by P.L.1955, Chap. 94.] The failure of a person accused of this offense to have tests made to determine the weight of alcohol in his blood shall not be admissible in evidence against him.'

Obviously, the statute does but three things. (1) It establishes the prima facie effect of a showing of certain quantities of alcohol in the blood as tending to prove the presence of absence of influence from the alcohol consumed. (2) It provides protection for the respondent from any prejudice which might result from his refusal or failure to have tests made. (3) It provides for payment for such tests if they are made. The statute itself establishes no rights as to the making of tests and imposes no obligations on the part of either arresting officers or the respondent.

The test, once properly made, becomes available to either the State or the respondent in exactly the same way that other material evidence is available. It may be said that it is distinguishable from other types of evidence only in one particular and that has to do with the timing of the taking of the blood sample to be tested. By the express terms of the statute, the thing to be ascertained is the per cent by weight of alcohol in the blood 'at the time' of the alleged offense. Obviously, there will always be some gap in time between the alleged unlawful operation and the moment of the taking of the blood sample. The more remote the time of taking the sample, the less persuasive will be the result, especially where it is less than 15/100% by weight of alcohol in the blood and thereby tends to support the contentions of the respondent. If a test proves favorable to a respondent, it is of the utmost importance to him to be able to relate the result to a time as close as possible to the time of the alleged offense. In short, we are dealing with evidence of limited availability which, if not gathered promptly, either cannot be gathered at all or at least can readily lose its evidentiary effect.

We do not think the rights of the respondent are to be ascertained from an examination of the statute. Rather...