MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	184	
Docket:	      Ken-16-572	
Submitted	
  On	Briefs:	 June	29,	2017	
Decided:	     August	22,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                         	
                                        v.	
                                         	
                                SAMANTHA	SOUTHER	
	
	
MEAD,	J.	

       [¶1]    Samantha	 Souther	 appeals	 from	 a	 judgment	 of	 conviction	 of	

operating	 under	 the	 influence	 (Class	 D),	 29-A	 M.R.S.	 §	 2411(1-A)(A)	 (2016),	

entered	 by	 the	 trial	 court	 (Kennebec	 County,	 Fowle,	 J.)	 following	 a	 jury	 trial.		

Souther	 contends	 that	 the	 court	 abused	 its	 discretion	 in	 its	 pretrial	 ruling	

excluding	 her	 proposed	 expert	 testimony	 as	 to	 her	 peak	 blood	 alcohol	

concentration	at	the	time	that	she	was	driving.		Concluding	that	Souther	failed	

to	present	the	court	with	any	proper	basis	upon	which	to	admit	the	proffered	

evidence,	we	affirm	the	judgment.	
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                                  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.”		State	v.	Rourke,	2017	ME	10,	¶	2,	154	A.3d	127.	

	     [¶3]		On	April	12,	2016,	Maine	State	Trooper	Greg	Stevens	responded	to	

a	 report	 of	 an	 erratic	 driver.	 	 Another	 driver	 had	 called	 9-1-1	 after	 seeing	

Souther’s	 vehicle	 swerve	 several	 times	 and	 nearly	 veer	 under	 a	 truck.		

Trooper	Stevens	observed	Souther’s	vehicle	drift	between	lanes	and	initiated	a	

traffic	 stop.	 	 When	 he	 approached	 Souther’s	 vehicle,	 he	 noticed	 the	 smell	 of	

intoxicants	coming	from	her	car	and	observed	that	her	eyes	were	glassy	and	

bloodshot,	 her	 speech	 was	 slurred	 and	 deliberate,	 and	 she	 fumbled	 with	 her	

paperwork.		He	also	observed	unopened	beer	cans	in	the	vehicle	and	an	open	

sixteen-ounce	can	of	beer	on	the	floor	between	Souther’s	feet.		Trooper	Stevens	

administered	three	field	sobriety	tests	and	found	indications	of	impairment	on	

each	 test.	 	 He	 arrested	 Souther	 for	 operating	 under	 the	 influence.	 	 See	

29-A	M.R.S.	§	2411(1-A)(A).	

	     [¶4]		The	complaint	against	Souther	alleged	only	that	she	“did	operate	a	

motor	 vehicle	 while	 under	 the	 influence	 of	 intoxicants,”	 see	 id.	
                                                                                                          3	

§	2411(1-A)(A)(1);1	it	did	not	allege	the	statutory	alternative	that	she	operated	

“[w]hile	 having	 an	 alcohol	 level	 of	 0.08	 grams	 or	 more	 of	 alcohol	 per	

100	milliliters	of	blood	or	210	liters	of	breath,”	id.	§	2411(1-A)(A)(2).		A	one-day	

jury	trial	was	held	on	December	22,	2016.		Prior	to	trial,	Souther	proposed	a	

stipulation	as	to	her	peak	blood	alcohol	content	at	the	time	that	she	was	driving	

and	sought	to	admit	expert	testimony	that,	applying	the	Widmark	formula,2	a	

115-pound	female	who	consumed	one	sixteen-ounce	beer	(the	size	of	the	open	

container	that	was	between	Souther’s	feet	when	she	was	stopped)	with	about	

a	5%	alcohol	content	would	have	a	peak	blood	alcohol	concentration	of	0.05%.		

She	argued	that	this	evidence	would	be	relevant	to	the	issue	of	impairment	and	

noted	 that	 Maine	 law	 prescribes	 presumptions	 of	 impairment	 or	 non-

impairment	for	certain	blood	alcohol	levels.		See	29-A	M.R.S.	§	2432	(2016).		The	

State	 asserted	 that	 it	 had	 already	 stipulated	 that	 it	 would	 not	 seek	 to	 admit	

evidence	of	a	blood	alcohol	test	result3	and	argued	that	it	would	confuse	the	




   1		As	we	have	held,	“[a]	person	is	under	the	influence	if	the	person’s	physical	or	mental	faculties	

are	 impaired	 however	 slightly	 or	 to	 any	 extent	 by	 the	 substance	 or	 substances	 that	 the	 person	
consumed.”		State	v.	Atkins,	2015	ME	162,	¶	1,	129	A.3d	952.	
   	
   2		“The	Widmark	formula	produces	an	estimate	of	a	person’s	blood	alcohol	content	based	upon	the	

absorption	and	elimination	rates	of	alcohol	in	the	human	body.”		Franklin	J.	Hogue	&	Laura	D.	Hogue,	
Criminal	Law,	54	Mercer	L.	Rev.	199,	228	(2002).	
   	
   3		Although	the	record	is	silent	on	the	reasons,	in	its	brief,	the	State	explains	that	the	test	was	not	

administered	correctly.	
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jury	“to	be	given	a	number”	when	the	only	issue	was	whether	or	not	Souther	

was	impaired.	

	     [¶5]	 	 The	 court	 determined	 that	 Souther’s	 proposed	 expert	 testimony	

would	be	excluded.		It	explained:	

     [J]ust	so	that	the	.	.	.	parties	are	clear	on	my	finding,	it	wasn’t	so	
     much	that	there	wasn’t	any	relevance	to	this	information,	I	thought	
     it	had	the	potential	to	confuse	the	jury	and	to	prejudice	one	side	or	
     the	other.		I’m	not	sure	that—this	is	an	impairment	case,	this	is	not	
     an	excessive	blood	alcohol	level	case,	this	is	an	impairment	case.		
     This	 information	 might	 very	 well—I	 could	 see	 this	 information	
     helping	the	[S]tate	or	helping	the	defense.		And	because	there’s	no	
     bench	line,	there	is	no	objective	measure	that	the	jury	is	going	to	be	
     told	 about,	 the	 0.08	 or	 the	 point	 whatever	 the	 test	 was	 that	 the	
     parties	have	agreed	to	be	stricken,	I	think	that	.	.	.	under	a	Rule	403	
     determination,	 that	 analysis,	 .	 .	 .	 the	 potential	 for	 confusion	 for	
     either	side	outweighs	any	probative	value	of	the	evidence.	
     	
Souther	 then	 argued	 that	 pursuant	 to	 29-A	 M.R.S.	 §	 2432(1)—which	 she	

summarized	as	providing	that	“[i]f	a	person	has	an	alcohol	level	of	0.05	grams	

or	less	of	alcohol,	it	[is]	prima	[facie]	evidence	that	the	person	is	not	under	the	

influence	of	alcohol”—evidence	that	Souther’s	blood	alcohol	level	was	below	

0.05%	is	“by	statute	.	.	.	the	type	of	evidence	that	can	be	presented	because	it	is	

informative	 on	 the	 issue	 of	 impairment,	 on	 whether	 someone	 is	 under	 the	

influence.”		Souther	indicated	that	she	would	have	sought	a	jury	instruction	on	

this	point.		The	court	responded:	
                                                                                     5	

      We’re	not	going	to	hear	any	evidence	today,	as	I	understand	it,	as	
      to	 what	 the	 blood	 alcohol	 level	 is,	 this	 is	 an	 impairment	 case.	 	 If	
      there	were	a	test	result,	be	it	0.09,	0.14,	whatever	the	test	result	
      would	have	been,	all	of	this	would	have	been	highly	relevant	and	
      highly	 admissible.	 	 But	 this	 is	 an	 impairment	 case.	 	 This	
      determination	 by	 the	 jury	 is	 going	 to	 be	 made	 upon	 objective	
      evidence	presented	concerning	Ms.	Souther’s	condition	at	the	time	
      that	she	was	driving.	
      	
      [A]nd	so	.	.	.	I	understand	the	argument	.	.	.	but	again,	Rule	403,	I	
      think	 the	 potential	 for	 confusion	 to	 the	 jury	 and	 the	 prejudicial	
      impact	on	either	party	to	this	case	outweighs	the	probative	value.		
      The	 jury	 is	 not	 going	 to	 have	 any	 test	 result	 or	 benchmark	 with	
      which	to	measure	[the	expert]’s	testimony,	so	my	decision	on	that	
      stands	but	your	issue	is	preserved.	
      	
	     [¶6]		The	jury	found	Souther	guilty	of	operating	under	the	influence.		The	

court	 entered	 judgment	 on	 the	 conviction	 and	 imposed	 an	 $800	 fine	 and	

ordered	that	her	license	be	suspended	for	150	days.		Souther	timely	appealed.		

See	M.R.	App.	P.	2.	

                                  II.		DISCUSSION	

      [¶7]	 	 Maine	 Rule	 of	 Evidence	 403	 provides	 that	 a	 court	 may	 exclude	

otherwise	relevant	evidence	“if	its	probative	value	is	substantially	outweighed	

by	a	danger	of	.	.	.	unfair	prejudice	[or]	confusing	the	issues.”		“We	review	a	trial	

court’s	rulings	on	relevance	for	clear	error,	and	rulings	on	admissibility	for	an	

abuse	of	discretion.”		State	v.	Maine,	2017	ME	25,	¶	23,	155	A.3d	871	(alteration,	

citation,	and	quotation	marks	omitted).		“A	court	abuses	its	discretion	in	ruling	
6	

on	evidentiary	issues	if	the	ruling	arises	from	a	failure	to	apply	principles	of	law	

applicable	to	a	situation	resulting	in	prejudice.”		Id.	(quotation	marks	omitted).	

	      [¶8]		We	have	upheld	the	admissibility	of	expert	testimony	applying	the	

Widmark	formula	in	State	v.	Tibbetts,	604	A.2d	20,	21-22	(Me.	1992).		In	that	

case,	 Tibbetts	 was	 charged	 with	 operating	 a	 motor	 vehicle	 while	 under	 the	

influence	of	intoxicating	liquor	or	while	having	a	blood	alcohol	concentration	

of	 0.08%	 or	 more	 after	 he	 crashed	 his	 vehicle	 into	 a	 guardrail.	 	Id.	 	 at	 21.	 	 A	

breath	 test	 administered	 about	 two	 hours	 after	 the	 accident	 measured	 his	

blood	 alcohol	 concentration	 at	 0.18%.	 	 Id.	 	 At	 trial,	 “[t]here	 was	 conflicting	

evidence	as	to	whether	Tibbetts	had	consumed	any	alcohol	between	the	time	

of	the	accident	and	the	arrival	of	the	trooper.”		Id.		Over	Tibbetts’s	objection,	the	

State	presented	an	expert	witness	who	opined	that,	according	to	the	Widmark	

formula	and	using	“estimated	values	.	.	.	to	account	for	Tibbetts’s	weight	and	the	

alcohol	he	allegedly	consumed	before	and	after	the	accident,”	Tibbetts’s	blood	

alcohol	 concentration	 at	 the	 time	 of	 the	 accident	 was	 between	 0.14%	 and	

0.16%.	 	 Id.	 at	 21-22.	 	 We	 held	 that	 the	 testimony	 was	 relevant	 and	 helpful	

because	“Tibbetts’s	 blood-alcohol	 content	 at	the	time	of	the	accident	 was	the	

central	 question	 before	 the	 jury,	 and	 the	 significance	 of	 a	 0.18%	 test	 result	

obtained	 approximately	 two	 hours	 after	 the	 accident	 was	 an	 issue	 of	
                                                                                       7	

consequence	in	the	case.”		Id.	at	22	(emphases	added).		We	therefore	concluded	

that	 the	 court	 did	 not	 abuse	 its	 discretion	 by	 admitting	 the	 expert	 opinion.		

Id.	at	22.	

	      [¶9]		In	a	case	decided	after	Tibbetts,	we	held	that	the	trial	court	did	not	

abuse	 its	 discretion	 by	 excluding	 expert	 testimony	 applying	 the	 Widmark	

formula.		See	State	v.	Grigsby,	666	A.2d	503,	505	(Me.	1995).		Unlike	in	Tibbetts,	

Grigsby	had	been	charged	only	with	operating	a	motor	vehicle	while	under	the	

influence	 of	 intoxicating	 liquor,	 and	 the	 State	 offered	 no	 evidence	 of	 a	

blood	alcohol	test	result	because	a	test	had	not	been	administered.		Id.	at	504.		

Grigsby	sought	to	admit	expert	testimony	“as	to	a	range	of	the	level	of	Grigsby’s	

blood-alcohol	at	the	time	of	the	arrest,”	but	the	expert	could	not	offer	an	opinion	

as	to	Grigsby’s	probable	level	of	impairment	based	on	that	range.		Id.	at	505.		

The	 State	 objected	 to	 the	 proposed	 testimony	 pursuant	 to	 Rule	 403,	 arguing	

that	 “it	 would	 confuse	 the	 issues	 in	 the	 case,”	 and	 the	 court	 sustained	 the	

objection.		Id.	

       [¶10]		On	appeal,	we	concluded	that	the	court	did	not	abuse	its	discretion	

by	 excluding	 the	 expert	 testimony	 because	 Grigsby’s	 offer	 of	 proof	 was	

insufficient	 to	 establish	 a	 link	 between	 the	 Widmark	 formula	 evidence	 and	

whether	Grigsby	was,	in	fact,	impaired—which	was	the	only	issue	for	the	jury	
8	

to	decide.		See	id.;	see	also	State	v.	Richford,	519	A.2d	193,	194-96	(Me.	1986)	

(concluding,	 in	 a	 case	 were	 the	 defendant	 was	 charged	 only	 under	 the	

“impairment”	prong	of	the	OUI	statute	after	he	refused	a	blood	alcohol	test,	that	

the	 court	 did	 not	 abuse	 its	 discretion	 by	 sustaining	 the	 State’s	 relevance	

objection	 to	 the	 defendant’s	 proffered	 Widmark	 formula	 evidence	 when	 the	

offer	of	proof	did	not	include	any	information	about	his	blood	alcohol	level	or	

“the	degree	of	impairment	[he]	would	have	suffered	given	that	range”).	

	     [¶11]		Similar	to	Grigsby,	the	sole	issue	in	this	case	was	whether	Souther	

was	 impaired,	 and	 her	 offer	 of	 proof	 did	 not	 state	 that	 her	 proposed	 expert	

could	 testify	 as	 to	 how	 she	 would	 have	 been	 affected	 by	 the	 blood	 alcohol	

concentration	 that	 her	 expert	 estimated	 that	 she	 had	 at	 the	 time	 she	 was	

driving.		Souther’s	offer	of	proof	therefore	was	insufficient	to	establish	a	nexus	

between	 the	 Widmark-based	 theoretical	 blood	 alcohol	 level	 and	 the	 issue	 of	

impairment.	

      [¶12]	 	 Perhaps	 recognizing	 that	 deficiency,	 Souther	 argues	 that	 the	

missing	 element	 in	 her	 offer	 of	 proof	 is	 resolved	 by	 the	 application	 of	

29-A	 M.R.S.	 §	 2432(1),	 which	 provides,	 “If	 a	 person	 has	 an	 alcohol	 level	 of	

0.05	grams	or	less	of	alcohol	per	100	milliliters	of	blood	or	210	liters	of	breath,	

it	is	prima	facie	evidence	that	that	person	is	not	under	the	influence	of	alcohol.”		
                                                                                                      9	

Construing	 an	 earlier	 version	 of	 section	 2432,	 however,	 we	 have	 held	 that	

evidence	of	a	defendant’s	blood	alcohol	concentration	“has	procedural	effect”	

under	the	statute	only	when	the	blood	alcohol	level	that	is	the	predicate	for	the	

prima	 facie	 effect	 has	 been	 established	 by	 “a	 scientific	 test	 administered	

contemporaneously	with	an	arrest.”		Grigsby,	666	A.2d	at	505	(quotation	marks	

omitted)	 (interpreting	 29	 M.R.S.A.	 §	 1312(5)(A)	 (Supp.	 1994)	 (repealed	 by	

P.L.	1993,	ch.	683,	§	A-1	(effective	Jan.	1,	1995)));	see	also	Richford,	519	A.2d	at	

196	n.1.		Here,	because	the	evidence	did	not	include	scientific	blood	alcohol	test	

results	 as	 required	 by	 Grigsby,	 section	 2432	 is	 unavailable	 to	 provide	 the	

missing	element	in	Souther’s	offer	of	proof.	

    	   [¶13]		In	sum,	because	Souther’s	offer	of	proof	did	not	include	a	proffer	

of	evidence	that	would	demonstrate	how	her	theoretical	blood	alcohol	content	

would	have	affected	her	mental	or	physical	faculties,	see	State	v.	Atkins,	2015	

ME	162,	¶	1,	129	A.3d	952,	and	because	section	2432	is	inapplicable,	the	court	

did	not	err	in	excluding	the	expert	testimony	regarding	the	Widmark	formula.4	

	       The	entry	is:	                                                                                  	

	       	       	       Judgment	affirmed.	

	       	       	       	       	       	

    4		We	do	not	find	persuasive	Souther’s	suggestion	that	the	court’s	exclusion	of	this	evidence	denied	

her	the	constitutional	right	to	present	a	complete	defense.		See	State	v.	Adams,	2015	ME	30,	¶	18,	
113	A.3d	583;	see	also	State	v.	Grigsby,	666	A.2d	503,	504	(Me.	1995).	
10	

Darrick	X.	Banda,	Esq.,	Law	Offices	of	Ronald	W.	Bourget,	Augusta,	for	appellant	
Samantha	Souther	
	
Maeghan	Maloney,	District	Attorney,	Tyler	J.	LeClair,	Asst.	Dist.	Atty.,	and	Mary-
Ann	 Letourneau,	 Stud.	 Atty.,	 Prosecutorial	 District	 IV,	 Augusta,	 for	 appellee	
State	of	Maine	
	
	
Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2016-835	
FOR	CLERK	REFERENCE	ONLY	
