State v. Tozier

• Decision Date: 07 May 2015
• Docket Number: Docket No. Aro–14–12.
• Citation: 115 A.3d 1240,2015 ME 57
• Parties: STATE of Maine v. Chad H. TOZIER.
• Court: Maine Supreme Court

115 A.3d 1240

2015 ME 57

STATE of Maine

v.Chad H. TOZIER.

Docket No. Aro–14–12.

Supreme Judicial Court of Maine.

Argued: Oct. 28, 2014.

Decided: May 7, 2015.

Todd R. Collins, District Attorney, and Kurt A. Kafferlin, Asst. Dist. Atty. (orally), 8th Prosecutorial District, Houlton, for appellantState of Maine.

Christopher K. MacLean, Esq.(orally), Elliott & MacLean, LLP, Camden, for appelleeChad H. Tozier.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.^*

Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HJELM, JJ.

Dissent: JABAR, J.

Opinion

MEAD, J.

[¶ 1] The State of Maine appeals from an order entered by the trial court(Hunter, J. ) granting Chad H. Tozier's motion to exclude a self-contained breath-alcohol test result from evidence based on the court's determination that the State failed to produce a qualified witness as required by 29–A M.R.S. § 2431(2)(D)(2013).¹We vacate the judgment.

I.BACKGROUND

[¶ 2] The following facts are taken from the record and are not in dispute.On August 19, 2012, a police officer certified to operate a self-contained breath-alcohol testing apparatus known as an Intoxilyzer used the device to test Tozier's breath-alcohol content.Before testing Tozier's breath, the officer ran a calibration check.He then obtained two separate breath samples, and the machine reported Tozier's breath-alcohol content as 0.18 grams of alcohol per 210 liters of breath.The officer issued Tozier a uniform summons and complaint charging him with criminal operating under the influence (Class D) pursuant to 29–A M.R.S. § 2411(1–A)(A)(2014).

[¶ 3] On September 21, 2012, the State of Maine charged Tozier by complaint in the District Court(Houlton) with criminal operating under the influence.Tozier requested a jury trial, and the case was therefore transferred to the Superior Court (Aroostook County).On or about October 29, 2013, Tozier sent a ten-day notice pursuant to 29–A M.R.S. § 2431(2)(D) requesting that the State produce a qualified witness to testify at his trial.²In response, the State produced the officer who administered the Intoxilyzer test at trial, but there was no other expert available.

[¶ 4] As the trial was about to begin on November 12, 2013, Tozier filed a motion in limine to exclude the breath-alcohol test result from evidence.The court granted Tozier's motion and issued a final order declaring that the officer was not qualified as an expert to testify as to the “appropriateness of the quality of the equipment, the chemicals or other materials involved.”The State received approval from the Attorney General to appeal and filed a timely notice pursuant to 15 M.R.S. § 2115–A(2014).

II.DISCUSSION

[¶ 5]The State argues that the court improperly excluded the breath-alcohol test result because the statute does not require the State to produce expert testimony in order to have the results of an Intoxilyzer admitted into evidence.The State contends that subsection D of 29–A M.R.S. § 2431(2) is intended for rural areas that rely on part-time reserve officers who are not certified to operate a breath-alcohol testing apparatus.In the scenario suggested by the State, in the ordinary case, the officer who operated the Intoxilyzer would issue a certificate containing the results of the test, and then only the officer who conducted the traffic stop would have to testify.If subsection D were invoked, the officer who performed the breath-alcohol test would then have to testify as well.In response to Tozier's arguments, the State additionally argues that the Confrontation Clause of the United States Constitution is not implicated when the declarant who administered the breath-alcohol test is available to testify.We examine the State's claims in turn.

A.Qualified Witness

[¶ 6]We review questions of statutory interpretation de novo.State v. Lowden,2014 ME 29, ¶ 13, 87 A.3d 694.“When interpreting a statute, we look first to the plain meaning in order to discern legislative intent, viewing the relevant provision in the context of the entire statutory scheme to generate a harmonious result.”Id.¶ 14.We strictly construe criminal statutes“to avoid absurd, illogical, or inconsistent results.”State v. Jones,2012 ME 88, ¶ 6, 46 A.3d 1125(quotation marks omitted).“Nothing in a statute may be treated as surplusage if a reasonable construction applying meaning and force is otherwise possible.”Lowden,2014 ME 29, ¶ 14, 87 A.3d 694(quotation marks omitted).

[¶ 7] The Maine Legislature has created a set of evidentiary rules, which can be found at 29–A M.R.S. § 2431, to govern blood, breath, and urine test results in operating under the influence (OUI)cases.Pursuant to subsection 1, such test results are generally admissible in evidence.Subsection 2 contains subsections A through K, which pertain to the use of analysis of blood, breath, and urine as evidence.Pursuant to subsection B, a person qualified to operate a self-contained breath-alcohol testing apparatus may issue a certificate stating the results of the test analysis.Pursuant to subsection C, when such a certificate is issued, and duly sworn and signed, it is prima facie evidence of the following:

(1) The person taking the specimen was authorized to do so;

(2) Equipment, chemicals and other materials used in the taking of the specimen were of a quality appropriate for the purpose of producing reliable test results;

(3) Equipment, chemicals or materials required to be approved by the Department of Health and Human Services were in fact approved;

(4) The sample tested was in fact the same sample taken from the defendant; and

(5) The alcohol level or drug concentration in the blood of the defendant at the time the sample was taken was as stated in the certificate.

29–A M.R.S. § 2431(2)(C).Thus, unless a defendant makes a demand pursuant to section 2431(2)(D), no live witness is required to testify in order for the test results and the facts set forth in subsection C to be admitted in evidence.

[¶ 8] The issue here involves the effect of subsection D on subsection C.Subsection D states:

With 10 days written notice to the prosecution, the defendant may request that a qualified witness testify to the matters of which the certificate constitutes prima facie evidence.The notice must specify those matters concerning which the defendant requests testimony.The certificate is not prima facie evidence of those matters.

29–A M.R.S. § 2431(2)(D)(emphasis added).“[Q]ualified witness” is not defined in the statute.

[¶ 9]The trial court interpreted “qualified witness” to be synonymous with “expert witness.”The court reasoned that if subsection D did not require an expert witness, then subsection K would essentially nullify subsection D.Subsection K provides: “The prosecution is not required to produce expert testimony regarding the functioning of self-contained breath-alcohol testing apparatus before test results are admissible, if sufficient evidence is offered to satisfy [subsections] H and I.”29–A M.R.S. § 2431(2)(K).

[¶ 10] Apart from subsection D, the term “qualified witness” is not used anywhere in section 2431.Subsection E is another ten-day notice provision that applies only to blood specimens, but subsection E explicitly states that the person who issues the certificate is the one who is required to testify by the ten-day notice.It is worth noting that there is no provision within section 2431 that explicitly requires production of an expert witness or expert testimony.The term “expert” is used in subsection K, but only to establish that an “expert” is not required in particular circumstances.

[¶ 11]“If the statutory language is ambiguous, meaning that it is reasonably susceptible to multiple interpretations, or is silent on a particular point, we will then consider other indicia of legislative intent including the purpose of the statute.”Griffin v. Griffin,2014 ME 70, ¶ 18, 92 A.3d 1144(quotation marks omitted).Subsection K was added to section 2431(2) in 1998³ and the legislative history contains one relevant letter sent from the District Attorney for District Six to the Department of Motor Vehicles.The letter stated a request:

[A]mend sub-section (2)(D) to make explicit what is now implicit, but ignored by some judges: that the prosecution need not ordinarily produce expert testimony regarding the functioning of self-contained, breath-alcohol testing apparatus, before test results are admissible.Some Superior Court Justices refuse to allow admission of any test result if we do not produce an expert (such as Bob Morgner) on demand.Thus, add a sentence at the end of paragraph (2)(D) as follows: “The prosecution is not required to produce evidence of the functioning of self-contained, breath-testing apparatus before test results are admissible, if sufficient evidence is offered to satisfy subsections 2(G), 2(H), and 2(I). ” I realize my language is cumbersome and perhaps much more simple language will accomplish this result.But some change is needed.We now regularly pay for an expert in intoxilyzer cases, and this is a totally unnecessary expense.

Letter from Geoffrey Rushlau, Dist. Attorney, Me. Dist. Six, to William Dowling, Dep't of Motor Vehicles(Jan. 20, 1998).Although the suggested language was altered slightly and was added as a separate provision instead of being attached to subsection D, we think that it is clear that the addition of the language in subsection K was meant to clarify that expert testimony is not required as a prerequisite to such evidence being admitted.

[¶ 12]Section 2431 concerns only evidence and evidentiary alternatives in OUI cases and does not establish or embellish any elements of the OUI offense outlined in 29–A M.R.S. § 2411.SeeState v. Kennedy,2002 ME 5, 788 A.2d 174.In Kennedy, the defendant objected to the admission of a breath-alcohol test result because the officer who conducted the test did not certify it.Id.¶ 5.The court admitted the test result...