State v. Pickering

• Decision Date: 01 July 1983
• Citation: 462 A.2d 1151
• Parties: STATE of Maine v. Jeffrey PICKERING.
• Court: Maine Supreme Court

Page 1151

462 A.2d 1151

STATE of Maine v. Jeffrey PICKERING.

Supreme Judicial Court of Maine.

Argued March 22, 1983.

Decided July 1, 1983.

Paul Aranson, Dist. Atty., Portland, Wayne S. Moss, Asst. Atty. Gen. (orally), Augusta, for plaintiff.

E. Paul Eggert (orally), Daniel Lilley, Portland, for defendant.

Before GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

WATHEN, Justice.

Defendant Jeffrey Pickering was convicted by jury verdict in the Superior Court (Cumberland County) of the criminal offense of operating a motor vehicle while under the influence of intoxicating liquor. 29 M.R.S.A. § 1312-B (1983). The defendant presents three issues on appeal from that conviction: (1) the presiding justice erred, at the suppression hearing, in excluding evidence of the reliability of a test for blood-alcohol content; (2) the complaint impermissibly charged him with operating while under the influence or, in the alternative, with operating while having an excessive blood-alcohol content; and (3) his conviction violates constitutional guarantees of due process and equal protection, since the criminal conduct for which he was charged is also declared by statute to be a traffic infraction for which only a civil penalty is provided. We deny the appeal and affirm the judgment of conviction.

I.

The defendant was placed under arrest during the early morning hours of September 29, 1981, for operating a motor vehicle while under the influence of intoxicating liquor. He submitted to an intoxilyzer test for the purpose of determining blood-alcohol content. The criminal complaint filed against the defendant charged that he violated 29 M.R.S.A. § 1312-B by operating a motor vehicle "while having 0.10% or more by weight of alcohol in his blood or while under the influence of intoxicating liquor." Prior to trial, the defendant moved to require the State to elect one alternative, to dismiss the complaint, and to suppress the test results. All motions were denied. At the conclusion of trial, and upon conviction for "operating under the influence as charged," the defendant was sentenced to 48 hours in jail, a $350 fine, and a 90-day suspension of his operator's license. The present appeal followed.

II.

Defendant moved to suppress the results of the intoxilyzer test on the grounds that it was not properly administered and because of the "inherent unreliability of the intoxilyzer." The motion was heard on the morning that trial was scheduled to commence. The defendant's first witness was the officer who administered the test. His testimony clearly established compliance with the prerequisites set forth in 29 M.R.S.A. § 1312(6) for the admission into evidence of test results. ¹ The officer testified that the test was administered twice and the results obtained were 0.149% and 0.168%. He further testified that the intoxilyzer machine was calibrated six days prior to defendant's arrest and again on the day following the arrest, and on each occasion the machine tested within an acceptable range. It was acknowledged, however, that the machine was not calibrated immediately prior to the tests performed on the defendant.

At the conclusion of the officer's testimony, the defendant sought to call a chemist as an expert witness. Through an offer of proof, he asserted that the witness would testify that since the time of arrest the departmental regulations for use of the intoxilyzer had changed in two respects. ² While it was conceded that the testing complied with the regulations in effect at the time of arrest, the defendant wished to demonstrate that the testing would not have been valid under the regulations in effect at the time of trial. The proffered expert witness would have testified that the testing, although in compliance with the regulations in effect at the time of the testing, was nevertheless scientifically unreliable as evidenced by the subsequent change in the regulations. The suppression justice ruled that such evidence of unreliability went to the weight of the test results rather than to their admissibility. The court declined to hear the witness and denied the motion to suppress.

The prerequisites set forth in section 1312(6) serve as a foundational indicia of reliability. The statute declares that any test taken in compliance with those requirements is prima facie evidence of blood-alcohol level in any court. ³ Evidence addressing the accuracy and reliability of the result of a properly administered test creates an issue of fact to be considered by the jury in weighing the evidence. See State v. Whitney, 436 A.2d 412, 413 (Me.1981). See also State v. Hebert, 437 A.2d 185, 186 (Me.1981) (accuracy of speedometer which was calibrated pursuant to standard procedure goes only to weight). ⁴

Subsequent changes in departmental regulations do not, without more, render inadmissible the results of tests which were properly administered in compliance with the statutory and regulatory provisions in effect at the time of testing. Accordingly, defendant failed to establish any basis for suppressing the test results in this case. The court committed no error in declining to hear the proffered evidence of unreliability.

III.

The criminal complaint in this case charged defendant with a violation of 29 M.R.S.A. § 1312-B for "operating a motor vehicle while having 0.10% or more by weight of alcohol in his blood or while under the influence of intoxicating liquor." (emphasis added.) In the Superior Court, defendant moved, without success, to require the State to elect one of the alternatives. On appeal, the defendant now contends that by the use of the disjunctive, charging him in the alternative, the State potentially deprived him of a unanimous jury verdict and did deprive him of "his ability to defend vigorously against each charge." Defendant cites no authority in support of his position and we find it to be without merit. ⁵

The complaint in this case follows the exact language of the statute. Generally, in criminal pleadings, it is sufficient for the indictment or complaint to employ the language of the statute if it adequately provides "a defendant of reasonable and normal intelligence with a clear identification of the crime and conduct charged." State v. Saucier, 421 A.2d 57, 58 (Me.1980); see also State v. Cameron, 456 A.2d 8, 9 (Me.1983); State v. Carter, 444 A.2d 37, 39 (Me.1982); State v. Gordon, 437 A.2d 855, 857 (Me.1981); State v. Holt, 391 A.2d 822, 824 (Me.1978). The conduct charged in this case, pursuant to section 1312-B, is clearly identified, and defendant has no reasonable basis to claim that he was uninformed of or confused by the nature of the charge against him. The fact that the underlying statute is phrased in the disjunctive does not alter this conclusion.

The defendant was placed at no disadvantage by the use of the word "or" in the complaint. In Ramsey v. State, 228 A.2d 529, 530 (Me.1967), this Court upheld an indictment which set forth a charge of indecent liberties, stated in two alternatives, and joined by the disjunctive. In doing so, we noted: "The statute described the offense, in the disjunctive; yet we think the acts prohibited constitute but one offense which may be charged in the conjunctive or may be charged by alleging either description of the offense." Id., quoting, State v. Farnham, 119 Me. 541, 545, 112 A. 258, 259 (1921). Other jurisdictions have applied this same reasoning in upholding indictments which track disjunctive statutory language proscribing driving while under the influence, similar to that now challenged. See, e.g., State v. Weidner, 192 Neb. 161, 166-67, 219 N.W.2d 742, 745 (1974); State v. Carsner, 45 Or.App. 115, 117-18, 608 P.2d 560, 561, rev'd on other grounds, 289 Or. 645, 616 P.2d 491 (1980); State v. Sheppard, 248 S.C. 464, 150 S.E.2d 916, 917 (S.C.1966).

The legislative history to section 1312-B supports this construction. See L.D. 1681, 1682 (110th Legis.1981). Furthermore, the recent legislative amendment to section 1312-B, which expressly permits a statement of the charge in the alternative, is evidence of the fact that the legislature intended section 1312-B to address but one crime, providing alternative methods of proof. 29 M.R.S.A. § 1312-B(1-A) provides:

Pleading and proof. The alternative defined in subsection 1, paragraphs A and B may be pleaded in the alternative. The State may, but shall not be required to, elect prior to submission of [sic] the fact finder. ⁶

IV.

The remaining issue on appeal involves a consideration of the constitutionality of certain provisions of the 1981 reform of Maine's "drunk driving" law. ⁷ In 1981, the legislature adopted P.L.1981, ch. 468, §§ 5-12 to become effective on September 18, 1981. Insofar as it is relevant to the present case, the enactment resulted in the creation of both a criminal and civil violation for operating under the influence, with different penalty provisions for each offense. Section 1312-B of 29 M.R.S.A. specifies the criminal violation as follows:

1. Offense. A person is guilty of a criminal violation under this section if he operates or attempts to operate a motor vehicle:

A. While under the influence of intoxicating liquor or drugs or a combination of liquor and drugs; or

B. While having 0.10% or more by weight of alcohol in his blood.

Section 1312-C describes a traffic infraction using the identical language. ⁸

The criminal penalties provided for the violation of section 1312-B include, as a minimu, a fine of not less than $350, not less than 48 consecutive hours of incarceration, and suspension of the right to operate a motor vehicle for at least 90 days. Section 1312-C, on the other hand, provides as a civil penalty a fine of not less than $250 nor more than $500, together with a suspension of the right to operate a motor vehicle for not less than 45 days.

The mechanism by which the determination is made whether an incident is to be prosecuted as a traffic infraction or as a...