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

operating	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 that	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	officers	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,	 around	 2:00	 a.m.,	 Lieutenant	 Frederick	 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	 signs 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	 the	

Intoxilyzer indicated “radio	 frequency	interference,” and the	instrument shut	

down.	 Dunn	restarted	the	Intoxilyzer,	and	Rourke	provided	two	more	breath	

samples.	 	 This	 time,	 the	 Intoxilyzer did	 not	 produce an	 error	 message,	 but	
3

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]		In	early	September	2014,	Rourke	was	charged	by	complaint	with	

one	 count	 of operating	 under	 the	 influence	 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	 held	 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. 16A(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	of	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,	 the	 parties	 stipulated	 that	Rourke	 had	 one	 prior	OUI	 conviction	within	 the	 past	 ten	

years.		
4

arguing	 that Demers	 had	 no	 basis	 to	 testify	 as	 to	 whether	 hydrocarbons	 or	

similar chemicals	were present in	Rourke’s	body when	he	took	the	breath	test.	

[¶7]		At trial,	after	conducting	a	voir	dire	examination	of	Demers	outside	

of	 the	 jury’s	 presence,	 see	 M.R.	 Evid.	 705(b),	 the	 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

laboratory	experiments	that	demonstrated a	correlation	between	exposure	to	

hydrocarbon	 chemicals	 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	 reasonably	 determine	 “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	Demers	on	other	topics,	

including	the	mechanics	and	limitations	of	the Intoxilyzer instrument.		
5

[¶8]	 	 The	 jury	 ultimately	 returned a guilty verdict, and	 the	 court	

sentenced	 Rourke	 to	 a jail term	 of	 ninety	 days,	 with	 all but seven	 days	

suspended,	 followed	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.		See 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.	

[¶10] 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	Rule provides,	“A	witness	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

[¶11]		For	evidence	to	be	admissible	pursuant	to	Rule	702,	a	court	must	

find	 that	it	 “is	relevant	in	accordance	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	 this	 inquiry,	 however,	 a	 court	 must	 make	 a	 preliminary	 finding	

that	 the	 testimony	is	 reliable.	 	 See	id. 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	 reliable	 has	 “no	 probative	 value,” id. ¶	 14,	 and	 cannot	 “satisfy	 the	

evidentiary	 requirements	 of	 relevance	 and	 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).		

[¶12]	 	 For	 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	

interferent chemicals on	breath-testing	equipment and	 test	results	produced	

by	that	equipment.		
7

[¶13]		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.	

[¶14] Further,	although	not	expressly	cited	by	 the	court	in	making	its	

ruling,	 the	 court	 was presented with additional	 evidence—beyond	 the	

differences	 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	 ambient	 exposure	 to	

 5		Demers	testified	during	voir	dire	that his	experiments	were	based	on the	Intoxilyzer	4011	and	

5000	models.	 In	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	

Intoxilyzer	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

[¶15] These 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	 support	 the	 court’s	 discretionary	

decision	to	exclude	Demers’s	expert	testimony.		See	Ericson,	2011	ME	28,	¶	12,	

13	A.3d	777.

[¶16]		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	

incident	involved	circumstances	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,	 526	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,	 evidence	 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	 testimony	was	 properly	excluded	when	 there	was	 no	evidence	in	 the	

record,	or	any	offer	of	proof,	linking	the	testimony	to	the	defendant).		

[¶17]	 	Although,	 here, the	 court	was	 presented	with	Dunn’s	testimony	

that	Rourke	had	been	working	as	a	mechanic	on	the	evening	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,	during	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	absence	of	an	adequate	offer	of	

proof linking	 Demers’s	 opinion	 with	 Rourke, the	 court	 was	 entitled	 to	

conclude 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	test.		

[¶18]	 	 In	 sum,	 the	 court	 did	 not	 abuse	 its	 discretion	 by	 excluding	

Demers’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	 with	 the	 Intoxilyzer	 8000	 instrument,	 the	

difference	 between	 the	 circumstances	 of	 Demers’s	 experiments and the	

circumstances	 at	 issue	 here,	 and	 the	 absence	 of	 a	 sufficient	 offer	 of	 proof

regarding	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	 ‘an	
11

The	entry	is:

Judgment	affirmed.	

Christopher	 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

FOR	CLERK	REFERENCE	ONLY

 

unfettered	right	to	offer	testimony	that	is	incompetent,	privileged,	or	otherwise	inadmissible	under	

standard	rules	of	evidence.’” (quoting Taylor	v.	Illinois,	484	U.S.	400,	410	(1988)).