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State v. Anderson & Ireland
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 18
Docket:	Yor-98-402 & Yor-98-496	
Argued:	January 7, 1999
Decided:	January 28, 1999


	[¶ 1]	Jeffrey G. Anderson, Kevin S. Bridges, Bruce Melhorn, Suzanna M.
Mercier, and Scott R. Ireland appeal from judgments entered on conditional
guilty pleas pursuant to M.R. Crim. P. 11.{1}  The pleas preserved for appeal
defendants' challenge to an order by the District Court (York, Levy. J.) denying
motions to suppress the results of breath analysis tests used to charge the
defendants with operating under the influence of intoxicants or with an
excessive blood alcohol level, in violation of 29-A M.R.S.A. § 2411 (1996 &
Supp. 1998).{2}  The defendants argue that the State's failure to offer and to
preserve a second breath sample violates their right to due process as
guaranteed by the Maine Constitution.{3}  Finding no violation of the defendants'
due process, we affirm.
	[¶ 2]	In unrelated incidents, all of the defendants were charged with the
offense of operating under the influence.  Each defendant submitted to blood-
alcohol testing through the Intoxilyzer 5000 (Intoxilyzer).{4}  None of the
defendants requested that an independent breath sample be preserved; the
police did not offer to preserve a second sample, and the police did not inform
the defendants that they could request the preservation of a second sample. 
The Intoxilyzer machines were not equipped to allow preservation of a second
sample, although evidence presented indicated that they could be modified to
do so at a cost of $1,000 per machine. 
	[¶ 3]	Anderson, Bridges, and Mercier filed a motion to suppress the
results of the Intoxilyzer.  The District Court (York, Levy, J.) held a
consolidated evidentiary hearing on their motions on July 22, 1997.  Ireland
and Melhorn also filed motions to suppress the Intoxilyzer results in their
cases.  On August 27, 1997, the District Court (Biddeford, Janelle, J.) granted
Ireland's motion to join and consolidate.  On September 25, 1997, the District
Court (York, Humphrey, J.) granted Melhorn's motion to join and consolidate.  
	[¶ 4]	Finding no due process violations, the District Court (York, Levy,
J.) denied the motions to suppress on November 19, 1997.  Based on the
evidence presented at the hearing of July 22, 1997, the court found:
[t]he testimony of Dr. Carolyn Howard, Ph.D., an analytical
chemist, establishes that the Intoxilyzer 5000 is less accurate than
the gas chromatography analysis she performs in her laboratory. 
The laboratory analysis, unlike the Intoxilyzer 5000, is able to
distinguish ethyl alcohol from other volatile compounds such as
methanol, toluene and ethers . . . .  Because laboratory gas
chromatography is more accurate than the Intoxilyzer 5000, Dr.
Howard's analysis of 235 breath samples resulted in different test
results in approximately 80% of the samples tested.  However,
deviations were of little legal significance because the number of
samples which could be deemed as "not corroborative" under
evidentiary standards established by the State of New Hampshire,
the jurisdiction in which Dr. Howard performs most of her work,
was 2.55%.
	[¶ 5]	The cases then were transferred to Superior Court.  On July 17,
1998, Anderson, Bridges, Melhorn, and Mercier entered conditional guilty pleas
in Superior Court (York County, Brennan, J.).  Ireland entered a conditional
guilty plea in Superior Court (York County, Fritzsche, J.) on August 18, 1998. 
This appeal followed.
	[¶ 6]	This Court reviews rulings on motions to suppress for errors of law
or clearly erroneous findings of fact.  See State v. Boyington, 1998 ME 163, ¶ 7,
714 A.2d 141, 143; State v. Stade, 683 A.2d 164, 165 (Me. 1996). 
	[¶ 7]	Although this case is one of first impression in Maine, the United
States Supreme Court addressed this issue in California v. Trombetta, 467 U.S.
479 (1984).  It ruled that due process under the United States Constitution
does not require the preservation of breath samples for breath analysis test
results to be admissible in cases involving operating under the influence
charges.  See Trombetta, 467 U.S. at 488.  In rejecting the claim, the Court
explained that the California authorities did not act in bad faith and that for a
state to have a duty to preserve evidence, the evidence must possess an
exculpatory value that is apparent before the evidence is destroyed and must
be of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.  See Trombetta, 467 U.S. at
488-90; see also Arizona v. Youngblood, 488 U.S. 51 (1988), reh'g denied, 488
U.S. 1051 (1989) (using refined three part test to determine whether failure to
preserve evidence violated due process); United States v. Femia, 9 F.3d 990,
993 (1st Cir. 1993) (noting Trombetta and Youngblood establish tripartite test
for determining whether state action violates due process). 
	[¶ 8]	The United States Supreme Court concluded that the evidence at
issue in Trombetta did not meet either of the above conditions.  First, it found
that "in all but a tiny fraction of the cases, preserved breath samples would
simply confirm the Intoxilyzer's determination that the defendant had a high
level of blood-alcohol concentration at the time of the test."  Trombetta, 467
U.S. at 489.  Second, it explained that a defendant could demonstrate
innocence by using alternative means, such as by challenging the calibration
or operation of the machine.  See Trombetta, 467 U.S. at 490.
	[¶ 9]	Due process under the Maine Constitution does not require
preservation of a second breath sample.  This Court has held repeatedly that
due process under the Maine Constitution provides no greater protection to
individuals than does due process under the United States Constitution.  See,
e.g.,  Fichter v. Board of Envtl. Protection, 604 A.2d 433, 436 (Me. 1992) ("State
and federal due process requirements are identical." (citation omitted));
Penobscot Area Hous. Dev. Corp. v. City of Brewer, 434 A.2d 14 (Me. 1981)
("This Court has long adhered to the principle that the Maine Constitution and
the Constitution of the United States are declarative of identical concepts of
due process." (citations omitted)). 
	[¶ 10]	 This Court's decision in State v. Berkley, 567 A.2d 915, 917-18
(Me. 1989), indicates, contrary to the defendants' contention, that Maine
follows the holding in Trombetta.  In Berkley, the Court determined the State's
duty to preserve evidence for criminal defendants under the state and federal
constitutions.  There, the State based its arson charge in part on chemical
analysis of soil samples.  The destruction of the soil samples prevented the
defendant from obtaining them prior to trial. 
	[¶ 11]	 In ruling that the soil samples were admissible, the Court
explained the defendant could have taken independent soil samples or
presented evidence at trial to impeach the State's test results.  See Berkley,
567 A.2d at 917-18.  In reaching the decision, the Berkley Court used the test
detailed in Trombetta and refined in Youngblood.  See Berkley, 567 A.2d at
918.  It concluded:
In [Youngblood], the United States Supreme Court further
narrowed the circumstances under which nonpreservation of
evidence will be found unconstitutional.  Faced with a due process
challenge . . . the Court held "that unless a criminal defendant can
show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due
process of law."  Accordingly, under Trombetta and Youngblood
defendant has failed to establish a violation of his right to due
Berkley, 567 A.2d at 918 (citation omitted).
	[¶ 12]	 Here, the defendants did not present evidence to show that they
satisfy the test that the Berkley Court used.  They presented no evidence that
the police acted with bad faith and no other rational basis to distinguish
Trombetta.  Thus, they have failed to establish a violation of their right to due
process under the Maine Constitution.  
	The entry is
				Judgment affirmed.

Attorneys for State: Andrew Ketterer, Attorney General Joseph A. Wannemacher, Asst. Atty. Gen., (orally) 6 State House Station Augusta, ME 04333-0006 Attorneys for defendants: James P. Loring, Esq., (orally) P O Box 4785 Portsmouth, NH 03802-4785 (for Anderson, Bridges, Melhorn & Mercier) Thomas G. Van Houten, Esq. P O Box 66 Sanford, ME 04073-0066 (for Ireland)
FOOTNOTES******************************** {1} . M.R. Crim. P. 11 provides in relevant part: With the approval of the court and the consent of the attorney for the state, a defendant may enter a conditional guilty plea. A conditional guilty plea shall be in writing. It shall specifically state any pretrial motion and the ruling thereon to be preserved for appellate review. If the court approves and the attorney for the state consents to entry of the conditional plea, they shall file a written certification that the record is adequate for appellate review and that the case is not appropriate for application of the harmless error doctrine. Appellate review of any specified ruling shall not be barred by the entry of the plea. If the defendant prevails on appeal, the defendant shall be allowed to withdraw the plea. {2} . Section 2411 provides in pertinent part: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. 29-A M.R.S.A. § 2411 (1996 & Supp. 1998). {3} . Article I, Section 6 provides: In all criminal prosecutions, the accused shall have a right to be heard by himself and his counsel, or either, at his election; To demand the nature and cause of the accusation, and have a copy thereof; To be confronted by the witnesses against him; To have compulsory process for obtaining his witnesses in his favor; To have a speedy, public and impartial trial, and, except in trials by martial law or impeachment, by a jury of the vicinity. He shall not be compelled to furnish or give evidence against himself, nor be deprived of his life, liberty, property or privileges, but by judgment of his peers or the law of the land. Me. Const. art. I, § 6. Article I, Section 6-A states: No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof. Me. Const. art. I, § 6-A. {4} . The Intoxilyzer 5000 uses breath samples to measure the alcohol concentration in blood.