MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 10 Docket: Sag

- 16

- 48 Argued : November	8,	2016 Decided: January	17,	2017 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM , and HUMPHREY, JJ.

STATE	OF	MAINE

v. RAYMOND N. ROURKE III

HJELM ,	J. [¶1] Raymond	N.	Rourke	III	appeals	from	a	judgment	of	conviction for operatin g	under	the	influence with	one	prior	conviction (Class	D), 29

- A	M.R.S. §	 2411(1

- A)(B)(1)	 (2016 ) , entered	 in	 the	 trial	 court	 (Sagadahoc	 County, Horton,	J. )	after	a	jury	trial. Rourke argues t hat	the	court abused	its	discretion by	 excluding expert	 testimony that	 certain chemicals ,	if	 present	in	 Rourke’s system, could have resulted	 in	 a falsely	 elevated breath

- alcohol test

. 1 We affirm	the	judgment.

1 We	are	unpersuaded	by Rourke ’s	additional	argument ,	to	the	extent that it	is	preserved, that overlapping	testimony	from	two law	enforcement	officer s	about	field	sobriety	tests	administered	to Rourke was	 unfairly	 prejudicial	 or needlessly cumulative and	 therefore	 subject	 to	 exclusion pursuant	to M.R.	Evid.	403

. We	do	not	address	that	contention	further.2 I.		BACKGROUND [¶ 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. See State	v. Fay , 2015	ME	160,	¶	2,	130	A.3d	364

. [¶ 3 ] On	 August	 2,	 2014,	 a round	 2:00	 a.m.,	 Lieutenant Fred erick	 M.
Dunn of	 the	 Topsham	 Police	 Department stopped	 a	 vehicle	 for	 speeding

. Dunn smelled	the	odor	of	alcohol	coming	 from	the	car	and observed	that the driver,	 Raymond N. Rourke III , had	 bloodshot	 eyes. Rourke acknowledged that	 he	 had been	 drinking	 wine	 earlier	 that	 evening

. After	 a	 second	 officer
arrived ,	Dunn	administered	three	field	sobriety	tests ,	including	the horizontal gaze	 nystagmus	 (HGN) test

. At	 Dunn’s	 request, the	 second	 officer repeated the HGN	 test. Rourke showed	 sign s of	impairment	 during the	 field	 sobriety

tests , and Dunn arrested	him	for	operating	under	the	influence

. [¶ 4 ] After	 transporting	 Rourke	 to the	 police	 station, Dunn , who	 is certified	 to	 operate	 breath

- alcohol	 testing	 equipment, obtained a breath sample from	Rourke	using	an Intoxilyzer	8000 instrument

. A	display	on	 t he Intoxilyzer indicated “ radio	 frequency	interference , ” and the instrument shut down. Dunn	restarted	the Intoxilyzer ,	and	Rourke	provided two more breath samples .	 	 Th is	 time,	 th e Intoxilyzer did	 not	 produce a n error	 message , but3 rather reported	a final result	of 0.11	grams	of	alcohol per	210	liters	of	breath

. 2 While	chatting	with Dunn at	the police station , Rourke	mentioned that	he was a	 mechanic	 and	 had	 been working	 at	 his	 place	 of	 employment that	 evening before	the	traffic	stop. [¶ 5 ] I n early September	2014,	Rourke	was	charged	by	complaint	with one	 count	 of operating	 under	 the	 inf luence with one prior	 conviction (Class D),	29

- A M.R.S.	§	2411(1

- A)(B)(1)

. 3 He pleaded	not	guilty to	the	charge

. A	 jury	 trial	 was	 hel d	 over	 two	 days	 in	 January	 2016 ,	 where the	 parties presented	evidence	consistent	with	the	facts	described	above. [¶ 6 ] During	 the trial ,	Rourke sought	 to	present	expert	 testimony	 from
Patrick	 Demers , who	 has	 training	 and	 experience in	 pharmacy	 and	 forensic chemistry

. In	a	report	that	Rourke had provided	to	the	State	before	trial, see M.R.U.	 Crim. P. 16 A (b)(2) , Demers asserted that “for	 several	 hours	 prior”	 to Rourke’s	 arrest,	 Rourke had	 been working	 with	 automotive	 chemicals containing	 hydrocarbons,	 ketones,	 and	 toluene,	 which , when	 inhaled,	 can “result	 in	 a	 falsely	 elevated	 reading	 on	 [an]	 Intoxilyzer

. ” The State	 filed	 a pretrial motion	 to	 exclude	 Demers’s	 testimony	 pursuant	 to M.R.	 Evid.	 403 ,

2 A	person	is	guilty	o f	OUI	if	he	or	she	operates	a	motor	vehicle	“[w]hile	having	an	alcohol	level of	 0.08	 grams	 or	 more	 of	 alcohol	 per	 .	 .	 .	 210	 liters	 of	 breath.” 29

- A	 M.R.S.	 § 2411 (1

- A)(A)(2) (2016 )

.

3 At	 trial,	 t he	 parties	 stipulated	 that	Rourke	 had	 one	 prior OUI convict ion within	 the	 past	 ten years .4 arguing	 that Demers	 had	 no	 basis	 to	 testify	 as	 to	 whether	 hydrocarbons	 or
similar c hemicals	were present in	Rourke’s body when	he	took	the	breath	test

. [¶ 7 ] At trial,	a fter	conducting	a	voir	dire	examination	of	Demers	outside of	 the	 jury’s	 presence, see M.R.	 Evid.	 705(b) ,	 t he	 court granted	 the	 State’s
motion	to exclude Demers ’s testimony about	the possible effect	of interferent
chemicals on Rourke’s breath

- alcohol test. As	the	basis	 for	that decision,	the

court found,	 among	 other	 things, that although Demers had	 conducted labo ratory	experiments	that	demonstrated a	correlation	between	exposure	to hydrocarbon	 chemical s	 and	 a	 positive	 breath

- test result ,	 the experiments involved	 an	 Intoxilyzer	 model	 that	 predated	 the	 one	 used	 in	 this	 case

. The court	 also	 determined that	 there	 was only “generalized	 evidence” about	 the

nature and	extent of	Rourke’ s	exposure	 to interferent chemicals,	 such	 that	a jury	 could	 not	 r easonably	 deter mine	 “the	 level	 of	 [ chemicals]	 in	 [Rourke’s]

. . . breath	 or	 the	 rate	at	which	he	might	have	been	emitting” them when the Intoxilyzer	 test	 was	 administered

. The	 court concluded ,	 based	 on	 those findings,	 that	 the	 probative	 value	 of	 Demers’s proffered	 opinion	 testimony was	“drastically	outweighed by	[its]	lack	of	reliability	.

. . and	 the	potential	 to confuse	the	jury.” 4

4 Later	in	the	trial,	without	objection,	Rourke	presented	testimony from D emers	on	other	topics, including the	mechanics and	limitations of	the Intoxilyzer instrument

.5 [¶ 8 ] T he	 jury ultimately returned a guilty verdict , and	 the	 court sentenced	 Rourke	 to	 a jail term of	 ninety	 days,	 with	 all but seven	 days suspended,	 followe d	by	one	 year	of	probation; a	 $700	 fine ; and	a	 three

- year license	 suspension. See 29

- A	 M.R.S.	 §	 2411(5)(B)	 (2016 )

. Rourke	 timely appealed

. S ee M.R.	App.	P.	2(b)(2)(A) ; 15	M.R.S.	§	2115	(2016 )

. II.		DISCUSSION [¶ 9 ] Rourke	 argues	 that	 the	 court	 abused	 its	 discretion	 by	 excluding Demers’s	expert	opinion that certain	chemicals ,	if	present	in	Rourke’s	system, could	have	compromised	the	reliability	of	his breath

- alcohol	test result

. [¶1 0 ] Although the	 court	 stated	 that	 it	 was	 excluding	 Demers’s testimony	pursuant	 to	Rule	403,	which	was	 the primary basis	 for	 the	State’s motion	 in	 limine	 and	 argument during	 voir	 dire , the court’s	 reasoning also implicates M.R.	Evid.	702

. That	R ule provides,	“A	witne ss	who	is	qualified	as an	expert	by	knowledge,	skill,	experience,	training,	or	education	may	testify	in the	form	of	an	opinion	or	otherwise	if	such	testimony	will	help	the	trier	of	fact to	understand	the	evidence	or	to	determine	a	fact	in	issue.” Id. We review	a ruling	 on	 the admissibility	 of	 expert testimony	 for	 an	 abuse	 of	 discretion.
See State v.	 Diana ,	 2014	 ME	 45,	 ¶	 35,	 89	 A.3d	 132 ; State	 v.	 Ericson , 2011 ME 28,	¶	12,	13	A.3d	777

.6 [¶ 1 1] For	evidence	to	be	admissible	pursuant	to	Rule	702,	a	court	m ust find	 that	it	 “is	relevant	in	accordan ce	with	M.R.	Evid.	401,	and	.	.	. will	assist the	trier	of	fact	in	understanding	the	evidence	or	determining	a	fact	in	issue.”
Ericson ,	 2011	ME	 28,	 ¶	 11,	 13	 A.3d	 777 (quotation	marks	 omitted). Before engaging	 in	 t his	 inquiry,	 however,	 a	 court	 must	 make	 a	 preliminary	 finding that	 the	 testimony	is	 reliable. See	i d. Indicia	 of	 reliability	include	 “whether any	studies	tendered	in	support	of	the	testimony	are	based	on facts	similar	to those	at	issue;	.	.	.	whether	the	hypothesis	of	the	testimony	has	been	subject	to peer	review; .	.	.	[and]	whether	an	expert’s	conclusion	has	been	tailored	to	the facts	of	the	case.” Id. ¶	12 (quotation	marks	omitted). Expert	testimony	that is	 not	 relia ble	 has	 “no	 probative	 value,” id. ¶	 14,	 and	 cannot	 “satisfy	 the evidentiary	 requirements	 of	 relevance	 an d	 helpfulness , and	 of	 avoidance	 of prejudice	 to [ the opposing	 party] or	 confusion	 of	 the	 fact

- finder, ” State	 v. Boutilier ,	426	A.2d	876,	879	(Me.	1981) (citing	M.R.	Evid. 402,	403,	702). [¶1 2 ] F or	 the	 following	 two	 reasons ,	 we	 conclude that given	 the particular	 factual	 circumstances	 in	 this	 case, the	 court	 acted	 within	 the bounds	 of	its	discretion	by excluding	Demers’s	 testimony about	 the	effect	 of
in terferent chemicals on	breath

- testing	equipment and	 test	results	produced by	that	equipment

.7 [¶1 3 ] First, the “studies	tendered	in	support”	of	Demers’s opinion	were not	“based	on	facts	similar	to	those	at	issue” here

. Ericson ,	2011	ME	28,	¶	12,
13 A.3d	777

. Demers	 testified	during	voir	dire	 that his	conclusion	about	 the effect	 of	 hydrocarbon	 chemicals	 on	 breath

- testing	 equipment	 was	 largely based on laboratory	experiments he	had	conducted at	least twenty
- five	years earlier, where subjects produced positive	 breath

- alcohol	 test	 results after inhaling	 paint	 thinner

. As	 the court	 found , however, Demers’ s	 experiments did	not	involve	the	Intoxilyzer	8000,	which	was	the	device	used	in	this	case. 5
The court	 reasonably	 determined that	 it	 could	 not	 assume	 that	 the Intoxilyzer 8000 reacted	to	hydrocarbons in	the	same	way	as	the model used in	Demers’s	experiments. [¶1 4 ] Further,	a lthough	not	expressly	cited by	 the	court	in	making	its ruling , the court	 was presented with additional	 evidence

— beyond	 the d ifferences	 in	 testing	 equipment

— that	 supported its basic reasoning	 that Demers’s	analysis	was	not	based	on	 facts	and	circumstances	similar	 to	 those
at	 issue here .	 	 For	 example,	 Demers’s	 experiments involved the	 intentional inhalation	 of	 paint	 thinner in	 a	laboratory , rather	 than	 ambi ent	 exposure	 to

5 Demers	testified	during	voir	dire	that his	experiments	were	based	on the	Intoxilyzer	4011	and 5000	models. I n	testimony	presented	after	the	court	made	its	ruling	on	the	State’s	motion	in	limine, Demers	 acknowledged	 that he	 does	 not	 own, is	 not	 certified	in,	 and	 has	 never	 even	 operated an Into xilyzer	8000.8 chemicals	in	an	industrial	environment

. Although	Demers	asserted	that	there is	literature	 that	supports	his	hypothesis	 that	 there	is	a	correlation	between industrial	exposure	to hydrocarbons	and	a	positive	breath

- alcohol	test,	he	was unable	to	identify	the	nature	of	the	literature	or	whether	it	had	been	subject to	peer	review. 6 [¶1 5 ] T hese material	differences	between	 the	studies	 that	 formed	 the basis	 for	 Demers’s	 opinion	 and	 the	 facts	 of	 this	 case,	 combined	 with	 the absence	 of	meaningful	 evidence	 regarding	 the reliability	 of	 the authority	 he relied	 on,	 are	 factors	 that by	 themselves suppor t	 the	 court’s	 discretionary decision	to	exclude	Demers’ s	expert	testimony. See	Ericson ,	2011	ME	28,	¶	12, 13	A.3d	777. [¶1 6 ] Second, Rourke’s offer	of	proof was	not sufficient to demonstrate the	relevance	of	Demers’s	opinion	to	the	facts	at	issue	in	the case ,	because	the proffer did	 not	 did	 not	include	 a	 description	 of	 the	 degree	 to	 which	 Rourke was	 exposed	 to	 hydrocarbon	 chemicals

. Demers	 offered	 an	 opinion	 that if

6 As	 further	 support	 for	 his hypothesis about	 the	 effect	 of ambient exposure	 to	 hydrocarbon chemicals,	 Demers	 referred	 anecdotally	 to	 an	 incident	 where	 a	 worker produced	 a	 positive breath

- alcohol	 test	 after	 cleaning	 up	 a	 paint	 solvent	 spill at	 a	 sewer	 treatment	 plant. Demers acknowledged,	 however,	 that	 in	 that	 incident	 officials	 merely	 “ surmised that	 it was	 hydrocarbon material	 that	 [a] ffected	 the	 breath

- testing	 device.” (Emphasis	 added.) Accordingly,	 although	 the inciden t	involved	circum s tances that	may	have	been similar	to those	in this	case, the	evidence	was ultimately	 too	 speculative	 to	 serve	 as	 a reliable	 basis	 for	 Demers’s	 expert opinion ,	 and	 this anecdotal evidence	 did	 not	 render	 the	 court’s	 order	erroneous

. Cf. State	 v.	 Tellier ,	 5 26	A.2d	 941, 944	(Me.	1987) (stating	that	expert	testimony	was	properly	excluded	when	the	testimony	“was so

. . . speculative	that	its	relevance	and	probative	value	was	virtually	nil

. ”).9 hydrocarbons	 or	similar	chemicals	were	in	Rourke’s	system,	Demers	 “would expect	 to	 see	 a contribution	 to	 a	 blood [

- ] alcohol	 test	 result.” Because Demers’s	opinion	was	 framed	as	a	hypothetical,	it	could be relevant only if	it were	supported	by evidence that	demonstrated the	fact	or	extent	of	Rourke’s exposure	 to	 hydrocarbons

— in	 other	 words,	 ev idence	 that	 linked	 Demers’s hypothetical	opinion	to Rourke

. See State	v.	Hatt , 2002	ME	166,	¶	9,	810	A.2d 415	 (stating	 that	 expert	 testimony	 was	 properly	 excluded	 when	 the proponent’s	 offer	 of	 proof	 was	 insufficient	 to	 demonstrate	 the	 testimony’s relevance); State	 v.	 Collin ,	 441	 A.2d	 693,	 695

- 96	 (Me.	 1982) (stating	 that expert	 testim ony	was	 properly	excluded	when	 there	was	 no	evidence	in	 the record,	or	any	offer	of	proof,	linking	the	testimony	to	the	defendant). [¶1 7 ] Although ,	 here, t he	 court	was	 presented	with Dunn’s testimony that	Rourke	had	been	working	as	a	mechanic	on	the eve ning	before	the	traffic stop ,	 there	 was	 neither	 testimony	 nor	 a	 proper	 offer	 of	 proof	 describing Rourke’s	workspace	 or	 the	 types	 of	 chemicals	 he	 regularly	 used,	if	any. 7 As the	 court correctly	 determined ,	 the	 record	 contains

— at	 best

— only “generalized	 evidence”	 that	 Rourke	 worked	 in	 an	 environment	 where

7 For	example,	d uring	voir	dire,	Rourke’s	attorney	asserted	that	he	had	photographs	depicting “the	 scene	 of	 the	 shop”	 where	 Rourke	 worked. Because the	 proffer did	 not	 demonstrate a foundational	basis	necessary	for	the	admission	of	the	photographs ,	however,	his	assertion does	not constitute	a	proper	offer	of	proof. See State	v.	Williams ,	462	A.2d	491,	492	(Me.	1983) (“An	offer	of proof	must	not	only	detail	the	proposed	[evidence]	but	must	also	support	the	admissibility	of	that [evidence].”).10 hydrocarbons	could	have	been	present.		In	the	a bsence	of	an	adequate offer	of proof linking	 Demers’s	 opinion	 with	 Rourke , the	 court	 was	 entitled	 to conclud e that the opinion was	 not relevant and	 would	 not	 assist	 the	 jury either in its evaluation	 of Rourke’s	 breath

- alcohol test	 results	 or in its determination	 of whether	 he	 was	 impaired

. See Hatt ,	 2002	 ME	 166,	 ¶	 9,
810 A.2d	415; Collin ,	441	A.2d	at	695

- 96. The	court	 therefore did	not	abuse its	 discretion	 by	 excluding	 Demers’s	 expert	 opinion	 based	 on	 its separate determination	that	there	was	only	“generalized	evidence”	about	the	extent	of Rourke’s	exposure	to	chemicals	that	could	have	affected	his	breath	te st. [¶1 8 ] In	 sum, the	 court	 did	 not	 abuse	 its	 discretion	 by	 excluding
Deme rs’s	 testimony	 about	 the	 effect of	 hydrocarbons	 on	 the	 breath

- alcohol test	 results because there	 was	 not	 a sufficient	 factual	 foundation	 to	 link Demers’s	 testimony	 with	 the	 facts of	 this	 case , as	 shown	 by	 evidence	 of Demers’s	 lack	 of	 familiarity	 wi th	 the	 Intoxilyzer 8000 instrument ,	 the difference	 between the	 circumstances	 of	 Demers’s	 experiment s and the circumstances	 at	 issue	 here,	 and	 the	 absence	 of	 a	 sufficient	 offer	 of	 proof

re garding	Rourke’s	alleged	exposure	to	hydrocarbons

. 8

8 Further,	contrary	to	Rourke ’s	argument,	the	exclusion	of Demers’s expert opinion	pursuant	to the	 Maine	 Rules	 of	 Evidence did	 not	infringe on	 Rourke’s Sixth	 Amendment	 right	 to	 compulsory process under	the	circumstances	in	this	case

. See State	v.	Cross , 1999	ME	95, ¶	7, 732	A.2d	278 (“[A] [d]efendant’s	 Sixth	 Amendment	 right	 to	 compulsory	 process	 does	 not	 provide	 him	 with	 ‘an11 The	entry	is: Judgment	affirmed.

Christo pher	 Ledwick,	 Esq.	 (orally),	 Brunswick,	 for	 appellant	 Raymond	 N. Rourke	III Jonathan	R.	Liberman,	Dep.	Dist.	Atty.	(orally), District	Attorney ’ s	Office, Bath, for	appellee State	of	Maine

Sagadahoc	County	Unified	Criminal	Docket	docket	number	CR

- 2014

- 746 F OR C LERK R EFERENCE O NLY

unfettered	right	to	offer	testimony	that	is	incompetent,	privileged,	or	otherwise	inadmissible	und er standard	rules	of	evidence.’” (quoting Taylor	v.	Illinois, 484	U.S.	400,	410	(1988) )

.