MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	108	
Docket:	      Ken-16-257	
Submitted	
  On	Briefs:	 April	27,	2017	
Decided:	     June	1,	2017	
                                                                                             	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                JOSHUA	T.	WILLIAMSON	
	
	
ALEXANDER,	J.	

          [¶1]	 	 This	 appeal	 involves	 a	 defendant	 who,	 while	 showing	 signs	 of	

significant	 impairment,	 accurately	 predicted	 to	 police	 officers	 that	 he	 would	

test	 at	 a	 “point	 22,”	 nearly	 three	 times	 the	 .08	 limit	 established	 by	 law.		

See	29-A	 M.R.S.	 §	 2411(1-A)(A)(2)	 (2016).	 	 A	 jury	 found	 him	 guilty	 of	

operating	 under	 the	 influence	 at	 a	 trial	 where	 the	 State	 had	 to	 prove	 either	

that	Williamson’s	quantitative	breath-alcohol	level	exceeded	that	limit	or	that	

his	 mental	 or	 physical	 faculties	 were	 impaired	 however	 slightly,	 or	 to	 any	

extent,	 by	 alcohol,	 drugs,	 or	 other	 intoxicants	 that	 he	 had	 consumed.	 	 See	

State	v.	 Atkins,	 2015	ME	162,	 ¶¶	 1,	 21,	 129	 A.3d	 952.	 	 On	 appeal,	 the	

defendant’s	 primary	 contention	 is	 that	 the	 State	 failed	 to	 comply	 with	
2	

technical	 requirements	 for	 the	 admission	 of	 the	 Intoxilyzer	 test	 result.	 	 We	

affirm	the	judgment.	

      [¶2]	 	 Joshua	 T.	 Williamson	 appeals	 from	 a	 judgment	 of	 conviction	

entered	by	the	trial	court	(Kennebec	County,	Marden,	J.)	after	a	jury	found	him	

guilty	 of	 operating	 under	 the	 influence	 (Class	 D),	 29-A	 M.R.S.	

§	2411(1-A)(B)(1)	 (2016),	 and	 criminal	 mischief	 (Class	 D),	 17-A	 M.R.S.	

§	806(1)(A)	 (2016).	 	 Williamson	 argues	 that	 the	 trial	 court	 abused	 its	

discretion	 by	 admitting	 the	 breath	 test	 result	 pursuant	 to	 29-A	 M.R.S.	

§	2431(2)	(2016)	and	that	the	State’s	late	disclosure	that	one	of	its	witnesses	

was	 recently	 investigated	 for	 accidentally	 shooting	 himself	 violated	 his	 due	

process	rights	pursuant	to	Brady	v.	Maryland,	373	U.S.	83	(1963).	

                                  I.		CASE	HISTORY	

	     [¶3]		“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.	

	     [¶4]		On	August	11,	2015,	Williamson	arrived	at	his	Gardiner	home	from	

work	between	3:00	and	4:00	p.m.	and	began	smoking	marijuana	and	drinking	

shots	 of	 vodka.	 	 Williamson’s	 girlfriend	 arrived	 home	 at	 approximately	

5:30	p.m.		Her	Ford	Explorer	and	Jeep	Grand	Cherokee	were	parked	in	front	of	
                                                                                                                3	

the	 apartment	 building	 in	 which	 they	 lived.	 	 She	 and	 Williamson	 had	 been	

arguing	all	day,	and	she	observed	him	drink	vodka	straight	from	the	bottle.1	

        [¶5]	 	 At	 some	 point,	 Williamson	 left	 to	 visit	 a	 neighbor	 in	 the	 adjacent	

apartment.	 	 The	 neighbor	 knocked	 on	 Williamson’s	 door	 later	 that	 evening	

and	asked	Williamson’s	girlfriend	to	retrieve	Williamson	from	the	neighbor’s	

apartment.		Williamson	and	his	girlfriend	resumed	arguing.		He	took	the	keys	

to	her	Jeep	Grand	Cherokee	and	drove	her	Jeep	into	her	Ford	Explorer,	backed	

up,	 and	 drove	 the	 Jeep	 into	 the	 Ford	 again.	 	 The	 neighbor,	 upon	 hearing	 the	

crash,	 went	 outside	 and	 observed	 damage	 to	 the	 vehicles	 parked	 outside	 of	

the	 apartment	 building.	 	 The	 Jeep	 had	 a	 flat	 tire,	 and	 the	 Ford	 had	 a	 broken	

taillight.	

        [¶6]	 	 Approximately	 twenty	 minutes	 later,	 at	 1:54	 a.m.,	 Williamson	

called	 9-1-1	 to	 report	 a	 domestic	 dispute.	 	 The	 dispatcher	 determined,	 after	

speaking	 with	 Williamson,	 that	 his	 speech	 was	 slurred	 and	 that	 he	 had	

difficulty	answering	“straightforward”	questions.	




   1	 	 Williamson’s	 girlfriend	 provided	 conflicting	 testimony	 at	 trial	 regarding	 when	 she	 observed	

Williamson	 drink	 alcohol.	 	 On	 direct	 examination,	 she	 testified	 that	 Williamson	 did	 not	 drink	
anything	 after	 he	 damaged	 her	 vehicles,	 but,	 on	 cross-examination,	 she	 testified	 that	 he	 began	
drinking	 after	 he	 damaged	 her	 vehicles.	 	 Williamson’s	 girlfriend	 also	 testified	 to	 a	 version	 of	 the	
timing	of	events	that	was	different	from	the	version	that	she	provided	in	her	written	statement	to	
police	immediately	after	the	incident,	which	statement	the	State	used	to	impeach	her	testimony.	
4	

       [¶7]		Officers	of	the	Gardiner	Police	Department	arrived	approximately	

ten	 minutes	 after	 Williamson	 called	 9-1-1.	 	 They	 observed	 that	 Williamson	

was	 unsteady	 on	 his	 feet,	 stumbling	 over	 objects,	 slurring	 his	 speech,	 and	

exhibiting	 erratic	 behavior.	 	 He	 admitted	 that	 he	 had	 been	 drinking	 alcohol	

since	getting	home	from	work	hours	earlier,	but	he	denied	driving.		The	jury	

also	heard	evidence	that	months	later,	at	a	Bureau	of	Motor	Vehicles	hearing	

held	 before	 his	 trial,	 Williamson	 admitted	 to	 driving	 and	 to	 damaging	 his	

girlfriend’s	vehicles.	

       [¶8]		The	police	arrested	Williamson	and	transported	him	to	the	police	

station,	 where	 he	 performed	 poorly	 on	 standardized	 field	 sobriety	 tests.		

Williamson	agreed	to	take	a	breath	test	and	“guesstimated”	that	he	would	test	

at	 a	 “point	 22.”	 	 An	 officer	 administered	 the	 breath	 test	 on	 an	 Intoxilyzer	 at	

3:38	 a.m.,	 and	 Williamson’s	 result	 was	 indeed	 0.22	 grams	 of	 alcohol	 per	

210	liters	of	breath.	

	      [¶9]	 	 In	 October	 2015,	 Williamson	 was	 charged	 by	 complaint	 with	

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

criminal	mischief	(Class	D),	17-A	M.R.S.	§	806(1)(A).		Williamson	pleaded	not	

guilty.	
                                                                                               5	

      [¶10]	 	 The	 court	 held	 a	 two-day	 jury	 trial	 in	 May	 2016.	 	 The	 State’s	

evidence	 consisted	 of	 testimony	 of	 the	 9-1-1	 dispatcher,	 Williamson’s	

neighbor,	Williamson’s	girlfriend,	the	responding	officers,	and	the	Intoxilyzer	

site	coordinator	for	the	Gardiner	Police	Department,	and	exhibits	including	a	

recording	of	the	9-1-1	call,	photographs	of	the	damaged	vehicles,	portions	of	a	

police	body	camera	video,	and	the	certified	Intoxilyzer	result.	

      [¶11]	 	 On	 the	 first	 day	 of	 the	 trial,	 the	 State	 informed	 Williamson	 and	

the	 court	 that	 Williamson’s	 neighbor	 had	 recently	 been	 investigated	 for	

accidentally	shooting	himself	in	the	leg,	but	that	the	State	did	not	intend	to	file	

any	charges.		Williamson	objected	to	the	neighbor’s	testimony.		He	argued:	

      I	have	a	very	detailed	Brady	discovery	request	that,	you	know,	if	
      there	 [were]	 reports	 that	 he	 maybe	 said	 things	 or	 hasn’t	 made	
      credible	 statements	 to	 the	 police	 or	 prosecutors,	 then	 I	 should	
      have	known	about	that,	I	mean	that’s	potential	Brady	information	
      .	 .	 .	 If	 he	 says	 something	 and	 his	 credibility	 is	 an	 issue,	 there	 is	 a	
      Brady	violation	if	they	have	not	disclosed	reports	to	me.	
	
The	 court	 concluded	 that	 the	 investigation	 of	 the	 accidental	 shooting	 had	 no	

bearing	on	the	neighbor’s	credibility	and	overruled	the	objection.	

      [¶12]		Williamson	also	offered	to	stipulate	to	being	under	the	influence	

when	the	police	arrived	and	to	the	Intoxilyzer	result,	but	the	stipulation	was	

conditioned	 on	 the	 State	 not	 offering	 videos	 showing	 his	 impairment.	 	 The	

State	did	not	agree	to	the	stipulation.		After	the	officer	who	administered	the	
6	

breath	 test	 testified	 that	 the	 Intoxilyzer	 bore	 the	 stamp	 of	 approval	 of	 the	

Department	of	Health	and	Human	Services	(the	Department),	the	State	offered	

the	 breath	 test	 result.	 	 Williamson	 objected.	 	 He	 argued	 that,	 although	 the	

State	 had	 satisfied	 paragraph	 H	 of	 29-A	 M.R.S.	 §	 2431(2),	 it	 had	 not	 offered	

sufficient	evidence	to	satisfy	paragraph	I.		The	court	sustained	the	objection.	

      [¶13]	 	 The	 State	 then	 called	 the	 Intoxilyzer	 site	 coordinator,	 who	

testified	 that	 the	 Intoxilyzer	 bore	 the	 Department’s	 stamp	 of	 approval	 and	

that	he	performs	a	monthly	calibration	check	of	the	solution	that	is	used	in	the	

operation	 of	 the	 Intoxilyzer,	 which	 is	 provided	 by	 a	 chemist	 from	 the	

Department’s	 Health	 and	 Environmental	 Testing	 Laboratory.	 	 When	 asked	 if	

the	 solution	 comes	 with	 a	 statement	 of	 the	 manufacturer	 certifying	 its	

composition	 and	 quality,	 the	 officer	 testified	 that	 it	 does	 not	 come	 with	 a	

“certificate”	 but	 that	 it	 comes	 directly	 from	 the	 Department	 “with	 [the	

chemist’s]	initials.”	

      [¶14]		The	State	offered	the	result	of	the	Intoxilyzer	for	a	second	time,	

and	the	court	admitted	the	Intoxilyzer	result	over	Williamson’s	objection.		The	

court	 stated	 that	 paragraph	 I	 was	 satisfied	 by	 testimony	 that	 the	 materials	

“com[e]	 from	 the	 Department	 of	 Health	 and	 Human	 Services	 with	 [the	

chemist’s]	stamp,”	which	has	been	“the	standard	in	the	industry”	in	Maine.	
                                                                                                                  7	

        [¶15]	 	 After	 the	 State	 rested,	 Williamson	 moved	 for	 a	 judgment	 of	

acquittal	on	the	charge	of	operating	under	the	influence,	arguing	that	the	State	

had	 failed	 to	 prove	 that	 Williamson	 was	 impaired	 at	 the	 time	 of	 operation.		

The	 court	 denied	 the	 motion.	 	 The	 State	 and	 Williamson	 offered	 closing	

arguments.		Williamson’s	closing	argument	focused	almost	exclusively	on	the	

issue	 of	 whether	 he	 was	 impaired	 at	 the	 time	 of	 operation.2	 	 The	 jury	 found	

Williamson	guilty	of	both	counts.3	

        [¶16]	 	 Williamson	 moved	 for	 a	 judgment	 of	 acquittal,	 M.R.U.	 Crim.	

P.	29(a),	which	the	court	denied.		The	court	sentenced	Williamson	to	364	days’	

incarceration	 with	 all	 but	 twenty	 days	 suspended,	 one	 year	 of	 probation,	 a	

$700	fine,	and	fees	and	surcharges.4		Williamson	timely	filed	this	appeal.		See	

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




   2	 	 Likewise,	 in	 Williamson’s	 opening	 statement,	 he	 asked	 the	 jury	 “to	 focus	 like	 a	 laser”	 on	 the	

“critical	piece”	of	the	State’s	case	which	is	“[Williamson’s]	state	at	the	time	of	driving	.	.	.	[n]ot	some	
time	later	in	the	evening,	not	some	earlier	time,	but	at	the	time	of	driving.”	
   	
   3	 	 During	 deliberations,	 the	 jury	 sent	 a	 note	 to	 the	 court	 with	 three	 questions.	 	 The	 questions	

concerned	what	time	Williamson’s	girlfriend	retrieved	Williamson	from	their	neighbor’s	apartment,	
the	 amount	 of	 time	 between	 the	 neighbor	 hearing	 the	 crash	 and	 the	 arrival	 of	 the	 police,	 and	
Williamson’s	girlfriend’s	written	statement	to	police.	

   4		Before	the	start	of	the	trial,	Williamson	stipulated	to	a	prior	conviction	for	operating	under	the	

influence	that	occurred	on	September	18,	2007,	which	enhanced	the	minimum	mandatory	sentence	
of	incarceration.		See	29-A	M.R.S.	§	2411(1-A)(B)(1),	(5)(B)	(2016).	
8	

                                  II.		LEGAL	ANALYSIS	

A.	    Breath	Test	Result	

       [¶17]		Williamson	argues	that	that	the	trial	court	abused	its	discretion	

and	clearly	erred	by	admitting	the	Intoxilyzer	result	when	the	State	failed	to	

prove	the	requirements	of	paragraphs	H	and	I	of	29-A	M.R.S.	§	2431(2).		“[W]e	

review	the	admission	of	evidence	over	an	objection	for	lack	of	foundation	for	

an	abuse	of	discretion,	but	review	underlying	factual	findings	for	clear	error.”		

State	v.	Gurney,	2012	ME	14,	¶	36,	36	A.3d	893.	

	      [¶18]	 	 Title	 29-A	 M.R.S.	 §	 2431	 (2016)	 establishes	 evidentiary	 rules	

governing	admission	of	breath	testing	results	in	operating	under	the	influence	

cases.	 	 State	 v.	 Tozier,	 2015	 ME	 57,	 ¶	 7,	 115	A.3d	 1240.	 	 A	 breath	 test	 result	

from	 an	 Intoxilyzer	 may	 be	 admitted	 as	 prima	 facie	 evidence	 of	 a	 criminal	

defendant’s	alcohol	level.		29-A	M.R.S.	§	2431(2)(G).		To	admit	the	result,	the	

State	must	either	produce	expert	testimony	or	present	sufficient	evidence	to	

satisfy	 paragraphs	 H	 and	 I	 of	 the	 statute.	 	 Id.	 §	2431(2)(K);	 Tozier,	

2015	ME	57,	 ¶	 14,	 115	A.3d	1240.	 	 Paragraph	 H	 requires	 evidence	 that	 the	

testing	apparatus	was	approved	by	the	Department,	which	may	be	proved	by	

demonstrating	 that	 the	 apparatus	 bore	 the	 Department’s	 stamp	 of	 approval.		

29-A	 M.R.S.	 §	2431(2)(H).	 	 Paragraph	 I	 requires	 evidence	 that	 the	 materials	
                                                                                          9	

used	in	operating	or	checking	the	operation	of	the	testing	apparatus	were	of	

the	 composition	 and	 quality	 stated,	 which	 may	 be	 proved	 by	 demonstrating	

that	 the	 materials	 “bore	 a	 statement	 of	 the	 manufacturer	 or	 of	 the	

Department.”		Id.	§	2431(2)(I).		The	statute	does	not	define	“statement.”		See	

29-A	M.R.S.	§	2401	(2016).	

	      [¶19]	 	 Here,	 the	 State	 met	 the	 requirements	 of	 paragraph	 H	 with	 the	

testimony	 of	 both	 the	 Intoxilyzer	 operator	 and	 the	 site	 coordinator	 that	 the	

apparatus	 bore	 the	 Department’s	 stamp	 of	 approval.	 	 Williamson	 agreed	 at	

trial	that	paragraph	H	had	been	satisfied.		Thus,	any	challenge	to	compliance	

with	paragraph	H	was	waived.	

       [¶20]	 	 Regarding	 paragraph	 I,	 the	 site	 coordinator	 testified	 that	 the	

solution	 used	 in	 the	 operation	 of	 the	 breath	 test	 apparatus	 was	 provided	 by	

the	Department’s	Health	and	Environmental	Testing	Laboratory	and	bore	the	

initials	 of	 a	 chemist	 employed	 by	 the	 Department.	 	 As	 the	 statute	 does	 not	

mandate	 that	 the	 statement	 of	 the	 Department	 take	 a	 particular	 form,	 the	

court	 did	 not	 err	 in	 construing	 the	 chemist’s	 initials	 as	 a	 “statement”	 of	 the	

Department.	 	 Because	 there	 is	 competent	 evidence	 in	 the	 record	 to	 support	

the	court’s	findings	that	the	State	satisfied	paragraphs	H	and	I,	the	court	did	

not	abuse	its	discretion	or	clearly	err	in	admitting	the	test	result.	
10	

B.	     Late	Disclosure	Regarding	State’s	Witness	

	       [¶21]		Williamson	argues	that	the	State’s	disclosure,	during	trial,	that	a	

State’s	 witness	 was	 recently	 investigated	 for	 accidentally	 shooting	 himself	

violated	 Williamson’s	 due	 process	 rights	 pursuant	 to	 Brady	 v.	 Maryland,	

373	U.S.	 83.5	 	 We	 review	 the	 alleged	 due	 process	 violation	 de	 novo.	 	 State	 v.	

Jones,	2012	ME	126,	¶	35,	55	A.3d	432.	

	       [¶22]	 	 “A	 defendant’s	 due	 process	 rights	 are	 violated	 when	 the	

prosecution	 withholds	 evidence	 favorable	 to	 him.”	 	 State	 v.	 Jobin,	

510	A.2d	527,	 529-30	 (Me.	 1986)	 (citing	 Brady,	 373	 U.S.	 at	 87).	 	 A	 Brady	

violation	 has	 three	 elements:	 (1)	 the	 evidence	 must	 be	 favorable	 to	 the	

defendant	 because	 it	 is	 either	 exculpatory	 or	 impeaching,	 (2)	 the	 State	 must	

have	 suppressed	 the	 evidence	 either	 willfully	 or	 inadvertently,	 and	

(3)	prejudice	 must	 have	 ensued.	 	 State	 v.	 Twardus,	 2013	 ME	 74,	 ¶	 32,	

72	A.3d	523.	

        	[¶23]	 	 We	 have	 held	 on	 numerous	 occasions	 that	 the	 State’s	 late	

disclosure	of	potentially	exculpatory	evidence	is	not	necessarily,	on	its	own,	a	

violation	 of	 due	 process	 pursuant	 to	 Brady.	 	 The	 context	 and	 the	 facts	
   5		Williamson	also	argues	that	his	due	process	rights	were	violated	based	on	M.R.U.	Crim.	P.	16	

and	 “notions	 of	 fair	 play”	 pursuant	 to	 the	 state	 and	 federal	 constitutions.	 	 These	 arguments	 were	
not	 raised	 before	 the	 trial	 court,	 and,	 therefore,	 we	 review	 only	 for	 obvious	 error.	 	 See	 M.R.U.	
Crim.	P.	 52(b);	 State	 v.	 Pabon,	 2011	 ME	 100,	 ¶	 29,	 28	 A.3d	 1147.	 	 We	 conclude	 that	 there	 was	 no	
obvious	error.	
                                                                                      11	

surrounding	the	late	disclosure	are	critical	to	the	analysis.		See	State	v.	Gagne,	

2017	 ME	 63,	 ¶¶	29-30,	 ---	 A.3d	 ---	 (concluding	 that	 the	 State’s	 production	 of	

medical	 records	 a	 week	 before	 trial	 did	 not	 deprive	 the	 defendant	 of	 a	 fair	

trial);	 State	v.	 Gould,	 2012	 ME	 60,	 ¶¶	7,	 25-26,	 43	 A.3d	952	 (concluding	 that	

the	State’s	delivery	of	test	results	to	the	defendant	a	half	hour	before	the	start	

of	trial	was	not	an	unreasonable	delay	under	the	circumstances);	State	v.	Kelly,	

2000	 ME	 107,	 ¶	26	n.11,	 752	 A.2d	 188	 (concluding	 that	 there	 was	 no	 error	

when	the	defendant	was	aware	of	the	exculpatory	evidence	before	trial).	

      [¶24]		Here,	the	State	did	not	conceal	the	evidence,	which	it	provided	to	

Williamson	 partway	 through	 the	 first	 day	 of	 a	 two-day	 trial,	 soon	 after	 the	

prosecutor	 had	 first	 learned	 of	 the	 investigation	 concerning	 the	 witness.		

Williamson	 vaguely	 argues	 that	 the	 investigative	 report	 could	 contain	

impeaching	 information,	 but	 there	 is	 nothing	 in	 the	 record	 before	 us	 that	

suggests	that	the	evidence	at	issue	is	either	exculpatory	or	impeaching.		The	

investigation	 of	 the	 neighbor	 was	 wholly	 unrelated	 to	 the	 matter	 before	 the	

trial	 court,	 and	 accidentally	 shooting	 oneself,	 without	 more,	 does	 not	

demonstrate	bias,	motive	to	fabricate,	personal	interest,	hostility,	or	any	other	
12	

factor	 affecting	 credibility.6	 	 Therefore,	 because	 the	 State	 disclosed	 the	

evidence	 to	 Williamson,	 and	 the	 information	 was	 not	 favorable	 to	 him	

pursuant	to	Brady,	Williamson’s	right	to	due	process	was	not	violated.	

         The	entry	is:	
         	
                     Judgment	affirmed.		
	
	     	     	      	      	      	
	
	
Jeremy	 Pratt,	 Esq.	 and	 Ellen	 Simmons,	 Esq.,	 Camden,	 for	 appellant	 Joshua	
Williamson	
	
Maeghan	 Maloney,	 District	 Attorney,	 and	 Alisa	 Ross,	 Asst.	 Dist.	 Atty.,	
Prosecutorial	District	IV,	Augusta,	for	appellee	State	of	Maine	
	
	
Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2015-1241	
FOR	CLERK	REFERENCE	ONLY	




   6	 	 Williamson’s	 contention	 that	 the	 late	 disclosure	 left	 him	 with	 no	 recourse	 is	 unpersuasive	

where	he	did	not	request	a	continuance,	an	in	camera	review,	a	mistrial,	or	any	other	form	of	relief.		
See	State	v.	Gould,	2012	ME	60,	¶	27,	43	A.3d	952;	State	v.	Dube,	478	A.2d	1138,	1142	(Me.	1984).	
