MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	    2019	ME	37	
Docket:	      Lin-18-61	
Argued:	      October	25,	2018	
Decided:	     March	7,	2019	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	    SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Concurrence:	 ALEXANDER,	J.	
	
	
                                       STATE	OF	MAINE	
                                               	
                                              v.	
                                               	
                                      JOHN	M.	BURBANK	
	
	
HJELM,	J.	

        [¶1]	 	 John	 M.	 Burbank	 appeals	 from	 a	 judgment	 convicting	 him	 of	

operating	under	the	influence	(Class	D),	29-A	M.R.S.	§	2411(1-A)(A)	(2018),	and	

operating	 beyond	 a	 license	 condition	 or	 restriction	 (Class	 E),	 29-A	 M.R.S.	

§	1251(1)(B)	(2018),	issued	by	the	trial	court	(Lincoln	County,	Billings,	J.)	after	

Burbank	 entered	 a	 conditional	 plea	 of	 nolo	 contendere	 to	 each	 charge,	 see	

M.R.U.	 Crim.	 P.	 11(a)(2).	 	 Burbank	 contends	 that	 the	 trial	 court	 erred	 by	

excluding	 testimony	 of	 two	 witnesses	 whom	 Burbank	 had	 designated—

seriatim—as	experts	to	testify	that	at	the	time	of	his	arrest	he	had	a	condition	

known	 as	 “auto-brewery	 syndrome,”1	 a	 phenomenon	 associated	 with	 the	


    1		Auto-brewery	syndrome	is	also	called	“gut-fermentation	syndrome.”			
2	

production	of	alcohol	within	the	body	itself	under	certain	circumstances.		The	

record	 supports	 the	 court’s	 findings	 that	 Burbank’s	 first	 witness	 was	 not	

sufficiently	qualified	to	testify	about	auto-brewery	syndrome	generally	and	did	

not	 have	 a	 sufficient	 basis	 to	 express	 an	 opinion	 that	 Burbank	 had	 that	

condition	at	the	time	of	his	arrest	or	that	any	such	condition	accounted	for	the	

blood	alcohol	level	detected	in	a	breath	test	administered	after	he	was	arrested.		

Additionally,	the	trial	court	acted	within	its	discretion	by	excluding	testimony	

of	Burbank’s	second	proposed	expert	witness	because	Burbank	designated	her	

far	too	belatedly.		We	therefore	affirm	the	judgment.			

                                         I.		CASE	HISTORY	

        [¶2]	 	 On	 August	 9,	 2016,	 Burbank	 was	 arrested	 and	 charged	 with	

operating	 under	 the	 influence	 and	 operating	 beyond	 a	 license	 condition	 or	

restriction.2		He	pleaded	not	guilty	to	both	charges,	and	the	court	scheduled	a	

jury	trial	to	be	held	in	August	of	2017.		During	the	pretrial	proceedings,	Burbank	

designated	an	expert	witness—a	toxicologist	to	testify	that,	at	the	time	of	his	

arrest,	 Burbank	 was	 suffering	 from	 auto-brewery	 syndrome,	 a	 condition	



   2		The	issues	on	appeal	regarding	admissibility	of	expert	testimony	were	addressed	and	resolved	

by	pretrial	motions	that	centered	on	the	qualifications	of	the	first	proffered	expert	witness	and	the	
relevance	of	her	testimony	to	this	case,	and	on	the	timing	of	Burbank’s	designation	of	the	second	
expert.	 	 Therefore,	 the	 record	 contains	 no	 substantive	 evidence	 regarding	 the	 circumstances	 of	
Burbank’s	stop	and	arrest.			
                                                                                      3	

associated	with	the	endogenous	production	of	alcohol	that	could	be	detected	in	

a	breath	alcohol	test.		The	State	filed	a	pretrial	motion	requesting	that	the	court	

hold	a	hearing	pursuant	to	Maine	Rule	of	Evidence	104	to	determine	whether	

the	expert’s	testimony	was	admissible,	see	M.R.	Evid.	702.			

      [¶3]	 	 The	 court	 postponed	 the	 trial	 and,	 in	 December	 of	 2017,	 held	 a	

hearing	on	the	admissibility	of	the	expert’s	testimony.		At	the	conclusion	of	the	

hearing,	 where	 the	 court	 heard	 testimony	 from	 several	 witnesses,	 including	

Burbank’s	designated	expert	witness,	the	court	orally	ruled	that	the	proffered	

expert	testimony	was	not	admissible.		The	court	first	concluded	that,	although	

auto-brewery	 syndrome	 may	 well	 exist	 as	 a	 physiological	 phenomenon,	

Burbank’s	 witness	 was	 not	 qualified	 to	 testify	 about	 it	 because	 she	 had	 no	

training	or	work	experience	relating	to	the	condition	and	instead	relied	only	on	

a	limited	number	of	case	studies	in	this	area	of	science,	which	is	still	emerging	

and	is	not	the	subject	of	much	literature.		The	court	also	concluded	that,	because	

significant	differences	existed	between	Burbank’s	purported	condition	and	that	

of	 patients	 with	 auto-brewery	 syndrome	 as	 revealed	 in	 the	 case	 studies,	 the	

witness’s	testimony	did	not	sufficiently	relate	the	syndrome	to	Burbank	and	to	

matters	pertinent	to	this	case.			
4	

      [¶4]		After	the	court	excluded	the	first	witness’s	testimony	in	December	

of	2017,	Burbank	designated	a	second	expert	on	January	10,	2018,	to	testify	that	

his	 alleged	 blood	 alcohol	 level	 at	 the	 time	 of	 his	 arrest	 was	 caused	 by	

auto-brewery	 syndrome.	 	 The	 State	 promptly	 filed	 a	 motion	 in	 limine,	

requesting	that	the	court	exclude	the	second	expert’s	testimony	as	a	sanction	

pursuant	to	M.R.U.	Crim.	P.	16A(d).		In	its	motion,	the	State	asserted	that	despite	

its	multiple	requests	to	Burbank,	starting	as	early	as	November	of	2016,	for	the	

production	of	an	expert	report	and	other	expert-related	material,	Burbank	had	

failed	to	provide	that	material	at	least	fourteen	days	before	the	date	set	for	the	

dispositional	 conference,	 which	 was	 January	 9,	 2017—more	 than	 a	 year	

earlier—as	required	by	M.R.U.	Crim.	P.	16A(b)(2).		The	court	granted	the	State’s	

motion,	 issued	 an	 order	 excluding	 testimony	 from	 Burbank’s	 second	

designated	 expert	 witness,	 and	 scheduled	 the	 jury	 trial	 to	 be	 held	 about	 two	

weeks	later.			

      [¶5]	 	 After	 moving	 unsuccessfully	 for	 the	 court	 to	 reconsider	 the	

exclusion	order	 and	on	the	day	before	the	jury	trial	was	to	be	held,	Burbank	

entered	 conditional	 pleas	 of	 nolo	 contendere	 to	 both	 charges,	 reserving	 his	

right	 to	 appeal	 and	 challenge	 the	 orders	 excluding	 testimony	 of	 the	 two	

proffered	experts.		See	M.R.U.	Crim.	P.	11(a)(2).		The	court	accepted	Burbank’s	
                                                                                                        5	

pleas	and	sentenced	him	to	seven	days	in	jail	and	a	$750	fine	on	the	OUI	charge,	

with	 a	 concurrent	 jail	 sentence	 on	 the	 charge	 of	 operating	 beyond	 a	 license	

restriction	or	condition.		This	appeal	followed.		See	15	M.R.S.	§	2115	(2018).		

                                       II.		LEGAL	ANALYSIS	

	       [¶6]	 	 Burbank	 first	 asserts	 that	 the	 court	 erred	 by	 excluding	 the	

testimony	 of	 the	 first	 witness	 based	 on	 its	 alternative	 conclusions,	 cast	 as	

foundational	matters,	that	she	was	 not	 sufficiently	qualified	to	render	expert	

testimony	 on	 the	 medical	 condition	 of	 auto-brewery	 syndrome	 and	 that	

Burbank	had	not	adequately	related	the	basis	of	her	opinion	to	the	facts	of	this	

case.3		He	next	contends	that	the	court	erred	by	excluding	the	testimony	of	his	

second	 proffered	 expert	 witness	 because	 of	 the	 late	 designation.	 	 Burbank	

finally	 asserts	 that	 the	 exclusion	 orders	 operated	 to	 deprive	 him	 of	 the	

constitutional	right	to	present	a	defense.		We	address	these	challenges	in	turn.	




    3		At	the	beginning	of	oral	argument	on	this	appeal,	Burbank	seemed	to	retreat	from	the	claim,	

which	he	had	fully	briefed,	that	the	court	erred	by	excluding	the	first	proffered	expert’s	testimony,	
when	he	stated	that	“in	a	sense	we	can	forget	about	[that	issue]	.	.	.	;	it’s	kind	of	beside	the	point	now	
because	[Burbank]	found	a	better	expert.”		Later	during	argument,	however,	Burbank	told	us	that	
“there	is	no	concession	in	regards	to	the	first	assignment	of	error.	.	.	.	I	want	to	make	sure	[that	issue	
is]	alive.”		Because	Burbank	has	not	unambiguously	abandoned	the	claim	relating	to	the	exclusion	of	
testimony	from	the	first	witness,	we	proceed	to	address	the	merits	of	that	contention.				
6	

A.        The	First	Expert’s	Testimony	

          [¶7]		Maine	Rule	of	Evidence	702	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.”	 	 We	 review	 the	

court’s	 ruling	 on	 the	 admissibility	 of	 expert	 testimony	 for	 an	 abuse	 of	

discretion.	 	 State	 v.	 Rourke,	 2017	 ME	 10,	 ¶	 10,	 154	 A.3d	 127;	 State	 v.	 Diana,	

2014	ME	45,	¶	35,	89	A.3d	132.			

          [¶8]	 	 For	 expert	 testimony	 to	 be	 admissible	 under	 Rule	 702,	 “the	 trial	

court	must	determine	that	the	testimony	(1)	is	relevant	in	accordance	with	M.R.	

Evid.	401,	and	(2)	will	assist	the	trier	of	fact	in	understanding	the	evidence	or	

determining	a	fact	at	issue.”		State	v.	Ericson,	2011	ME	28,	¶	11,	13	A.3d	777	

(quotation	 marks	 omitted);	 see	 also	 State	 v.	 Williams,	 388	 A.2d	 500,	 504	

(Me.	1978).		Expert	testimony	can	be	relevant	only	if	it	is	reliable,	see	Ericson,	

2011	ME	28,	¶¶	12,	14,	13	A.3d	777,	and	so,	for	the	evidence	to	be	admissible,	

the	 court	 must	 make	 a	 preliminary	 determination	 that	 the	 proponent	 has	

presented	 a	 sufficient	 demonstration	 of	 reliability,	 see	 Rourke,	 2017	 ME	 10,	

¶	11,	 154	 A.3d	 127.4	 	 Indicia	 of	 reliability	 include	 “whether	 any	 studies	


     4		Burbank	asserts	on	appeal	that	“[l]ike	‘credibility,’	the	‘reliability’	of	evidence	is	a	factual	finding”	

reserved	only	for	the	fact-finder.		To	the	contrary,	Maine	Rule	of	Evidence	104(a)	requires	the	court	
                                                                                                           7	

tendered	in	support	of	the	testimony	are	based	on	facts	similar	to	those	at	issue;	

.	.	.	whether	an	expert’s	conclusion	 has	 been	tailored	to	the	facts	of	the	case;	

.	.	.	[and]	the	nature	of	the	expert’s	qualifications.”		Ericson,	2011	ME	28,	¶	12,	

13	A.3d	777	(quotation	marks	omitted).		

        [¶9]		The	court	made	findings	supported	by	the	record	and	acted	within	

the	bounds	of	its	discretion	by	excluding	the	first	expert’s	testimony	for	the	two	

reasons	it	explained	on	the	record.	

        [¶10]	 	 First,	 the	 court	 did	 not	 err	 by	 finding	 that	 the	 proffered	 expert	

lacked	the	qualifications	necessary	to	offer	an	opinion	as	to	whether	Burbank	

was	 suffering	 from	 auto-brewery	 syndrome.	 	 See	 Tolliver	 v.	 Dept.	 of	 Transp.,	

2008	 ME	 83,	 ¶	 35,	 948	 A.2d	 1223	 (holding	 that	 an	 expert	 witness	 was	 not	

qualified	to	give	an	opinion	on	accident	causation	because	he	lacked	training	on	

accident	reconstruction	and	was	unfamiliar	with	the	scene	of	the	car	crash	at	

issue).	 	 The	 expert	 testified	 that,	 although	 she	 has	 a	 Ph.D.	 in	 toxicology	 and	

physiology,	she	had	not	taken	any	classes	on	auto-brewery	syndrome	and	had	

neither	performed	any	studies	nor	worked	directly	on	matters	relating	to	the	

syndrome.	 	 Instead,	 her	 knowledge	 regarding	 the	 syndrome	 appears	 to	 have	



to	 “decide	 any	 preliminary	 question	 about	 whether	 a	 witness	 is	 qualified	 .	 .	 .	 or	 evidence	 is	
admissible”—precisely	the	issue	here.			
8	

stemmed	entirely	from	her	review	of	four	articles	and	four	abstracts	of	different	

articles	she	cited	during	her	testimony—sources	that	predominantly	consist	of	

individual	case	studies.		As	the	court	properly	observed	while	addressing	the	

framework	 set	 out	 in	 Rule	 702,	 because	 the	 witness	 had	 no	 hands-on,	

experience-based	understanding	of	auto-brewery	syndrome,	in	order	for	her	to	

qualify	 as	 an	 expert	 witness	 any	 expertise	 needed	 to	 be	 derived	 from	 some	

other	informational	source,	which	here	were	the	articles	and	abstracts	in	the	

professional	literature.		See	M.R.	Evid.	702.		But	as	the	court	found	with	support	

in	 the	 record,	 the	 amount	 of	 available	 research	 material	 on	 auto-brewery	

syndrome	 is	 “thin.”	 	 The	 court	 was	 entitled	 to	 determine,	 as	 it	 did,	 that	 the	

witness’s	review	of	only	a	small	number	of	case	studies—even	when	combined	

with	 her	 general	 qualifications	 as	 a	 toxicologist	 and	 physiologist—did	 not	

qualify	her	to	provide	expert	testimony	about	auto-brewery	syndrome.			

       [¶11]		Second,	the	court	did	not	err	by	concluding	in	the	alternative	that	

the	evidence	was	insufficient	to	demonstrate	that	auto-brewery	syndrome,	as	

it	is	understood	through	the	literature,	has	any	bearing	on	this	case.		See	Rourke,	

2017	ME	10,	¶¶	16-17,	154	A.3d	127;	Ericson,	2011	ME	28,	¶	12,	13	A.3d	777.		

In	an	attempt	to	make	that	connection,	Burbank	presented	the	court	with	an	

offer	of	proof	describing	his	anticipated	trial	testimony:	he	had	not	consumed	
                                                                                          9	

alcohol	since	the	beginning	of	2016;	he	has	a	family	history	of	diabetes	and	had	

been	 found	 to	 be	 pre-diabetic;	 and	 at	 the	 time	 of	 his	 arrest	 he	 was	 eating	 a	

high-sugar	diet	and	had	been	taking	a	prescribed	antibiotic	for	two	days.			

	      [¶12]		During	her	testimony,	the	witness	acknowledged	that	she	had	not	

independently	examined	Burbank,	nor	had	she	ordered	any	lab	work	or	other	

testing	 to	 determine	 the	 levels	 of	 yeasts	 or	 fungi	 in	 Burbank’s	 system	 that	

would	 have	 been	 necessary	 for	 ethyl	 alcohol	 to	 be	 produced	 endogenously.		

Instead,	she	pointed	to	blood	tests	conducted	during	routine	medical	exams	in	

April	2016	 and	January	 2017	showing	that	Burbank	then	had	levels	of	blood	

glucose	 that	 were	 slightly	 above	 the	 normal	 range.	 	 She	 also	 noted	 that	 the	

antibiotic	he	had	taken	prior	to	his	arrest	might	have	killed	his	normal	bacterial	

gut	flora,	which	could	have	resulted	in	elevated	levels	of	fungal	yeasts,	which	

could	have	then	combined	with	excess	glucose	to	produce	ethyl	alcohol—but	

only	if	there	was	a	contemporaneous	“slowing	of	the	gut	or	stasis	in	the	areas	

of	 the	 gut.”	 	 The	 resulting	 alcohol,	 she	 stated,	 would	 work	 its	 way	 into	 the	

bloodstream	and	then	into	the	lungs	so	that	it	can	be	detected	in	the	person’s	

breath,	 although	 a	 breath	 test	 instrument	 cannot	 reveal	 whether	 the	 alcohol	

was	 introduced	 to	 the	 person’s	 system	 endogenously	 or	 exogenously.	 	 The	

witness	 expressed	 the	 opinion	 that,	 given	 Burbank’s	 claim	 that	 he	 had	 not	
10	

consumed	 alcohol	 at	 any	 time	 relevant	 to	 this	 case,	 the	 alcohol	 in	 his	 breath	

must	have	been	caused	by	this	sequence	of	events.		

	      [¶13]	 	 Notwithstanding	 her	 opinion,	 the	 witness	 admitted	 that	 the	

available	information	regarding	Burbank’s	condition	and	symptomatology	did	

not	closely	match	any	of	the	limited	number	of	case	studies	referenced	in	the	

articles	and	abstracts.		She	also	acknowledged	that	none	of	the	medical	records	

she	 had	 reviewed	 showed	 what	 bacteria	 or	 yeast	 were	 present	 in	 Burbank’s	

system,	 nor	 did	 they	 indicate	 the	 conditions	 within	 his	 system	 that,	 in	 her	

opinion,	would	have	likely	affected	the	production	of	alcohol	at	the	time	of	his	

arrest.			

	      [¶14]		At	the	conclusion	of	the	hearing,	the	court	excluded	the	expert’s	

testimony	 stating	 that	 there	 was	 “not	 enough	 evidence	 to	 show	 that	 the	

hypothesis	 is	 tied	 to	 the	 facts	 of	 this	case	 and	 [there	 are]	 actually	 significant	

differences	 between	 most	 of	 the	 case	 studies	 and	 the	 evidence	 that	 we	 have	

here	about	Mr.	Burbank.”			

	      [¶15]	 	 A	 trial	 court	 is	 entitled	 to	 exclude	 expert	 testimony	 that	 is	

supported	only	by	evidence	that	is	so	general	as	to	lack	reliability	and	therefore	

is	not	relevant.		See	Rourke,	2017	ME	10,	¶¶	15-17,	154	A.3d	127;	State	v.	Hatt,	

2002	ME	166,	¶	9,	810	A.2d	415.		Here,	the	trial	court	acted	within	its	discretion	
                                                                                         11	

by	excluding	the	witness’s	ostensibly	expert	testimony.		The	court	was	entitled	

to	 determine	 that,	 as	 a	 matter	 of	 admissibility,	 the	 evidence	 proffered	 by	

Burbank	 could	 not	 reasonably	 allow	 a	 jury	 to	 draw	 a	 connection	 between	

Burbank’s	elevated	glucose	levels	in	April	of	2016	and	January	of	2017	and	his	

ingestion	of	an	antibiotic	in	the	days	before	his	arrest,	and	the	hypothesis	that	

Burbank	endogenously	produced	the	alcohol	detected	in	the	blood	alcohol	test	

administered	after	Burbank	was	arrested.			

B.	    The	Second	Expert’s	Testimony	

       [¶16]	 	 Burbank	 next	 argues	 that	 the	 court	 abused	 its	 discretion	 by	

excluding	his	proffered	second	expert’s	testimony	on	auto-brewery	syndrome.		

He	concedes	that	there	was	a	late	disclosure	but	contends	that	there	was	 no	

resulting	prejudice	to	the	State	because	it	had	“plenty	of	time	to	respond.”			

       [¶17]		The	Maine	Rules	of	Unified	Criminal	Procedure	were	promulgated	

to	 “secure	 simplicity	 in	 procedure,	 fairness	 in	 administration,	 and	 the	

elimination	 of	 unjustifiable	 expense	 and	 delay.”	 	 M.R.U.	 Crim.	 P.	 2.	 	 The	 trial	

court	is	charged	with	promoting	these	objectives—which	can	sometimes	be	in	

tension—and	 does	so	in	large	 part	by	the	administration	of	sensible	and	fair	

case	 management	 practices.	 	 Thus,	 when	 a	 case	 has	 been	 pending	 for	 a	

significant	period,	the	court	must	balance	its	“obligation	to	try	to	achieve	justice	
12	

through	due	process,”	Gammon	v.	Boggs,	2018	ME	152,	¶	6,	196	A.3d	900,	and	

its	duty	to	administer	an	orderly	and	efficient	process	for	ensuring	that	a	case	

timely	proceeds	to	trial.	

	       [¶18]		Burbank	was	charged	with	OUI	in	August	of	2016,	and	the	court	

scheduled	the	case	for	a	jury	trial	in	August	of	the	following	year.		A	jury	was	

impaneled,	and	the	State’s	motion	in	limine	to	determine	the	admissibility	of	

the	first	witness’s	testimony	was	scheduled	to	be	heard	several	days	before	the	

jury	trial	was	to	commence.		When	Burbank	designated	the	first	expert	witness,	

pursuant	 to	 Maine	 Rule	 of	 Unified	 Criminal	 Procedure	 16A(b)	 the	 State	

reportedly	 requested	 that	 Burbank	 provide	 an	 expert	 report	 and	 other	

expert-related	material,	but	Burbank	did	not	do	so	in	a	timely	way.5		Instead,	

according	to	the	State,	Burbank	provided	expert-related	material	to	the	State	

just	before	the	pretrial	hearing	was	to	be	held.		It	appears	that,	for	this	reason,	

the	court	continued	the	in	limine	hearing,	which	resulted	in	a	postponement	of	




    5		In	its	motion	in	limine	to	exclude	testimony	from	the	second	expert	witness,	the	State	recounted	

the	procedural	history	involving	Burbank’s	efforts	to	offer	expert	testimony	and	represented	that	it	
had	sent	Burbank	three	written	requests	for	production	of	expert	reports	and	related	material,	see	
M.R.U.	Crim.	P.	16A(b)(2),	with	the	first	such	request	having	been	sent	in	November	of	2016.		The	
record	does	not	include	those	requests,	which	is	not	unexpected	because	that	process	is	conducted	
between	the	parties	directly,	but—even	having	been	specifically	given	the	opportunity	to	be	heard	
further	during	a	hearing	on	his	motion	for	reconsideration—Burbank	has	not	denied	or	otherwise	
contested	the	State’s	description	of	its	repeated	specific	efforts	to	obtain	the	expert	material	from	
him.			
                                                                                                              13	

the	jury	trial	itself.6		Only	after	the	court	excluded	the	first	expert’s	testimony	

in	December	of	2017	did	Burbank	try	again,	designating	a	second	witness	who	

would	also	testify	about	auto-brewery	syndrome.			

        [¶19]	 	 Burbank	 acknowledges	 that	 he	 provided	 the	 initial	 discovery	

concerning	 that	 expert	 to	 the	 State	 on	 January	 10,	 2018.	 	 Pursuant	 to	 M.R.U.	

Crim.	P.	16A(b)(2),	however,	the	deadline	for	a	defendant	to	provide	the	State	

with	expert-related	material	is	fourteen	days	before	the	scheduled	date	of	the	

dispositional	 conference.	 	 Here,	 that	 scheduled	 date	 was	 January	 9,	 2017—

meaning	that	Burbank	provided	the	State	with	materials	relevant	to	the	second	

expert	witness	more	than	one	year	after	the	deadline.7		The	court	granted	the	

State’s	motion	to	exclude	the	second	expert’s	testimony.		In	denying	Burbank’s	

motion	 to	 reconsider,	 the	 court	 explained	 that	 its	 practice	 was	 to	 apply	


   6		The	record	contains	a	series	of	scheduling	notices	for	the	in	limine	hearing	and	the	jury	trial	but	

does	not	set	out	an	explanation	for	these	changes	in	dates.		The	scheduling	changes,	however,	are	
consistent	 with	 the	 State’s	 account,	 provided	 in	 its	 motion	 to	 exclude	 the	 testimony	 of	 Burbank’s	
second	expert	witness,	that	at	the	last	minute	the	court	continued	the	August	in	limine	hearing	date	
because	 Burbank	 had	 failed	 to	 timely	 provide	 certain	 expert-related	 material	 to	 the	 State.	 	 In	 its	
motion,	the	State	also	asserted	that,	during	a	telephonic	conference	among	the	court	and	counsel,	the	
court	granted	a	continuance	of	the	August	hearing	date	in	lieu	of	a	“more	severe	discovery	sanction”	
against	Burbank.		The	record	does	not	include	a	memorialization	of	such	a	conference,	but,	again,	see	
supra	n.5,	Burbank	has	not	challenged	the	State’s	description	of	this	procedural	history,	even	when	
the	 court	 gave	 him	 a	 direct	 opportunity	 to	 do	 so	 during	 the	 hearing	 on	 Burbank’s	 motion	 to	
reconsider.	
   7		The	original	date	for	the	dispositional	conference	was	continued	because	Burbank’s	attorney	

had	a	scheduling	conflict,	and	the	conference	was	held	on	March	13,	2017.		That	schedule	change,	
however,	 did	 not	 affect	 the	 deadline,	 calculated	 pursuant	 M.R.U.	 Crim.	 P.	 16A(b)(2),	 by	 which	
Burbank	was	required	to	provide	the	expert	material	to	the	State.	
14	

deadlines,	not	slavishly,	but	in	a	way	that	promotes	justice.		The	court	further	

explained	 that,	 here,	 Burbank	 had	 “already	 had	 one	 designated	 [expert]	 and	

had	 litigation	 around	 it”;	 that	 Burbank	 was	 creating	 a	 “moving	 target”	 by	

“put[ting]	up	one	expert,	they	don’t	get	in	so	try	somebody	else”;	and	that	it	was	

not	fair	to	the	State,	“right	before	trial,”	for	Burbank	to	“jump	on	another	expert	

and	see	where	that	comes	in.”			

      [¶20]	 	 Under	 the	 circumstances,	 where	 Burbank	 bore	 material	

responsibility	for	significant	delays	in	the	progression	of	this	case,	the	court’s	

ruling	 was	 an	 appropriate	 and	 fully	 justified	 exercise	 in	 case	 and	 docket	

management	that	promoted	the	interest	of	allowing	a	fair	process	in	a	case	that	

had	already	been	pending	for	nearly	eighteen	months.		See	Mitchell	v.	Kieliszek,	

2006	ME	70,	¶	19,	900	A.2d	719	(holding	that	“it	is	an	appropriate	exercise	of	

the	trial	court’s	discretion	to	exclude	expert	witness	testimony	when	the	party	

seeking	to	elicit	the	opinion	failed	to	designate	the	witness	as	an	expert	.	.	.	in	a	

timely	fashion”);	see	also	M.R.U.	Crim.	P.	16A(b)(2),	(d).			

C.	   Sixth	Amendment	Right	to	Present	a	Defense		

      [¶21]		Finally,	Burbank	argues	that	by	excluding	both	expert	witnesses’	

testimony,	 the	 court	 violated	 his	 constitutional	 right	 to	 be	 able	 to	 present	 a	

defense.			
                                                                                     15	

      [¶22]	 	 The	 constitutional	 guarantee	 of	 a	 meaningful	 opportunity	 to	

present	 a	 complete	 defense,	 though	 rooted	 in	 the	 Due	 Process	 Clause	 of	 the	

Fourteenth	 Amendment,	 is	 nevertheless	 subject	 to	 “reasonable	 restrictions.”		

United	States	v.	Scheffer,	523	U.S.	303,	308	(1998).		“[S]tate	.	.	.	rulemakers	have	

broad	 latitude	 under	 the	 Constitution	 to	 establish	 rules	 excluding	 evidence	

from	 criminal	 trials	 .	 .	 .	 so	 long	 as	 [those	 rules]	 are	 not	 ‘arbitrary’	 or	

‘disproportionate	 to	 the	 purposes	 they	 are	 designed	 to	 serve.’”	 	 Id.	 (quoting	

Rock	v.	Arkansas,	483	U.S.	44,	56	(1987));	see	also	State	v.	Cross,	1999	ME	95,	

¶	7,	732	A.2d	278.			

      [¶23]	 	 Contrary	 to	 Burbank’s	 assertion,	 the	 court’s	 considered	 and	

reasonable	 application	 of	 established	 principles	 of	 evidence	 and	 case	

management	did	not	result	in	a	constitutional	deprivation	to	Burbank.		

                                  III.		CONCLUSION	

	     [¶24]		The	court’s	decisions	to	exclude	the	testimony	of	Burbank’s	two	

successively	designated	expert	witnesses	were	not	abuses	of	its	discretion	and	

were	 well	 within	 constitutional	 limits.	 	 We	 therefore	 affirm	 the	 convictions.		

Because	 of	 the	 specific	 grounds	 that	 lead	 us	 to	 this	 outcome,	 however,	 our	

opinion	 should	 not	 be	 construed	 as	 implicitly	 accepting	 the	 notion	 that	 the	

crime	of	OUI	does	not	encompass	a	situation	where	the	alcohol	in	the	accused’s	
16	

system	is	generated	through	some	endogenous	process.		The	parties	have	not	

developed	 meaningful	 presentations	 on	 that	 broader	 question,	 and	 the	 court	

based	 its	 ruling	 entirely	 on	 narrower	 evidentiary	 principles.	 	 Absent	 a	 fully	

developed	record	and	sufficient	advocacy	that	would	allow	a	proper	analysis	of	

that	categorical	question,	we	leave	its	resolution	to	another	day.	

        The	entry	is:	

                          Judgment	affirmed.		
                          	



ALEXANDER,	J.,	concurring.		
	
    [¶25]		John	M.	Burbank	was	arrested	on	suspicion	of	operating	under	the	

influence	on	August	9,	2016.		Shortly	after	his	arrest,	Burbank’s	blood	alcohol	

level	 was	 measured	 at	 .31	 grams	 of	 alcohol	 per	 100	 milliliters	 of	 blood	 or	

210	liters	 of	 breath—nearly	 four	 times	 the	 legal	 limit.8	 	 The	 blood	 test	

presented	a	considerable	challenge	to	defense	of	the	charge.		Burbank,	assisted	

by	 creative	 counsel,	 proved	 up	 to	 the	 task.	 	 He	 asserted	 that,	 without	 his	

consuming	any	alcohol,	his	body	had	spontaneously	produced	alcohol,	and	that	


    8	 	 The	 complaint	 against	 Burbank	 states	 that	 he	 was	 tested	 as	 having	 a	 blood	 alcohol	 level	 of	

.15	grams	or	more	of	alcohol	per	100	milliliters	of	blood	or	210	liters	of	breath.		Although	the	results	
of	the	test	are	not	in	the	record,	the	record	contains	a	video	of	Burbank	taking	an	Intoxilyzer	breath	
test	after	his	arrest.		Burbank’s	first	proffered	expert	testified	at	a	pretrial	hearing	that	the	test	results	
showed	a	blood	alcohol	level	of	.31;	Burbank	accepts	this	measurement	in	his	brief.				
                                                                                                     17	

he	 was	 “involuntarily	 intoxicated,”	 creating	 a	 reasonable	 doubt	 as	 to	 the	

voluntariness	of	his	.31	blood	alcohol	content.		(Appellant’s	Br.	2,	11,	13,	17.)			

        [¶26]		Burbank	acknowledges	that	his	defense	“is	an	uncommon	one,	to	

be	sure.”		(Appellant’s	Br.	17.)		He	argues	that	the	trial	court,	in	rejecting	his	

proffered	expert	testimony,	deprived	him	of	his	right	“to	present	an	otherwise	

promising	defense”	creating	a	reasonable	doubt	about	the	voluntariness	of	his	

condition.		(Appellant’s	Br.	25-26.)	

        [¶27]	 	 Burbank’s	 defense	 may	 be	 “uncommon”	 because	 we	 explicitly	

rejected	 the	 “involuntary	 intoxication”	 defense	 to	 an	 OUI	 charge	 nearly	

forty	years	 ago	in	State	v.	West,	416	 A.2d	5,	6-9	(Me.	1980).9		“Since	the	only	

elements	of	the	offense	charged	are	operating	a	motor	vehicle	and	being	under	

the	influence	of	intoxicating	liquor	while	doing	so,	it	follows	that	intoxication—

whether	self-induced	or	not	self-induced—cannot	establish	a	reasonable	doubt	

as	to	the	existence	of	any	element	of	the	particular	offense	here	in	question.”		

Id.	at	8.		

        [¶28]	 	 The	 Court’s	 opinion,	 sidestepping	 the	 validity	 of	 Burbank’s	

“uncommon”	 defense,	 directly	 addresses	 the	 merits	 of	 the	 trial	 court’s	


   9		West	was	decided	before	the	1994	recodification	of	the	Motor	Vehicle	Code,	P.L.	1993,	ch.	683	

(effective	Jan.	1,	1995),	at	a	time	when	the	OUI	law	was	codified	at	29	M.R.S.A.	§	1312	(1978);	the	text	
of	the	then-applicable	statute	appears	in	the	opinion.		State	v.	West,	416	A.2d	5,	6	n.1	(Me.	1980).	
18	

exclusion	 of	 Burbank’s	 proffered	 experts.	 	 Justifying	 that	 choice,	 the	 Court	

observes	that:	“our	opinion	should	not	be	construed	as	implicitly	accepting	the	

notion	that	the	crime	of	OUI	does	not	encompass	a	situation	where	the	alcohol	

in	the	accused’s	system	is	generated	through	some	endogenous	process.		The	

parties	have	not	developed	meaningful	presentations	on	that	broader	question,	

and	 the	 court	 based	 its	 ruling	 entirely	 on	 narrower	 evidentiary	 principles.		

Absent	 a	 fully	 developed	 record	 and	 sufficient	 advocacy	 that	 would	 allow	 a	

proper	analysis	of	that	categorical	question,	we	leave	its	resolution	to	another	

day.”	 	 Court’s	 Opinion	 ¶	 24.	 	 Thus,	 despite	 the	 “uncommon”	 defense	 being	 a	

central	focus	of	 Burbank’s	arguments,	the	Court	leaves	for	“another	day”	the	

question	of	whether,	after	forty	years,	West	remains	settled	law	in	the	State	of	

Maine.	

       [¶29]		I	concur	in	the	Court’s	opinion	affirming	the	trial	court’s	judgment.		

I	 do	 not	 concur	 in	 or	 join	 the	 Court’s	 reasoning	 addressing	 the	 merits	 of	 the	

exclusion	 of	 the	 proffered	 experts	 without	 first	 considering	 whether	 the	

proffered	 expert	 testimony	 was	 relevant	 to	 any	 issue	 at	 trial,	 and	 perhaps	

suggesting	 thereby	 that	 involuntariness	 might	 be	 a	 defense	 to	 an	 excessive	

blood	 alcohol	 charge.	 	 If	 the	 Court’s	 approach	 prevails,	 and	 the	 “uncommon”	
                                                                                                                 19	

defense	is	left	unaddressed,	it	may	invite	many	“I	didn’t	know	there	was	vodka	

in	my	orange	juice”	or	similar	defenses	to	OUI/EBA	charges.10	

        [¶30]		The	statute	prohibiting	operating	under	the	influence,	29-A	M.R.S.	

§	2411(1-A)(A)	(2018),	prohibits	operating	a	motor	vehicle	“(1)	While	under	

the	influence	of	intoxicants;	or	(2)	While	having	an	alcohol	level	of	0.08	grams	

or	more	of	alcohol	per	100	milliliters	of	blood	or	210	liters	of	breath.”		Thus,	

OUI	 is	 defined	 to	 include	 only	 two	 elements:	 (1)	 the	 forbidden	 conduct	 of	

operating	a	motor	vehicle,	and	(2)	the	attendant	circumstances	of	being	under	

the	influence	of	intoxicants	or	having	a	blood	alcohol	content	of	.08	or	greater.		

See	17-A	M.R.S.	§	32	(2018);	29-A	M.R.S.	§	2411(1-A)(A).			

        [¶31]		On	its	face,	and	as	we	held	in	West,	the	statute	suggests	no	mens	

rea	element	and	no	exception	for	involuntariness;	Burbank’s	brief	includes	no	

citation	to	the	contrary.		Despite	 a	paucity	of	supporting	precedent,	Burbank	

contends	 that	 his	 auto-brewery	 syndrome	 affliction	 rendered	 his	 conduct	 of	

operating	 with	 a	 .31	 blood	 alcohol	 content	 involuntary,	 exempting	 him	 from	




      10	 	 The	 term	 “EBA”	 references	 excessive	 blood	 alcohol,	 the	 alternative	 in	 the	 OUI	 law	 that,	 if	

excessive	 blood	 alcohol	 content	 is	 proved,	 does	 not	 require	 proof	 of	 impairment	 to	 support	 a	
conviction.	 	 See	 29-A	 M.R.S.	 §	 2411(1-A)(A)(2)	 (2018)	 (“A	 person	 commits	 OUI	 if	 that	 person	
.	.	.	[o]perates	a	motor	vehicle	.	.	.	[w]hile	having	an	alcohol	level	of	0.08	grams	or	more	of	alcohol	per	
100	milliliters	of	blood	or	210	liters	of	breath.”).	
20	

criminal	 liability,	 or	 at	 least	 creating	 a	 reasonable	 doubt	 as	 to	 his	 guilt.	 	 See	

17-A	M.R.S.	§	103-B(1)	(2018).			

       [¶32]		Two	years	ago,	in	another	OUI	appeal,	we	held	that	involuntariness	

is	a	defense	to	a	crime,	but	will	only	“negate	the	actus	reus	of	a	crime	when	the	

forbidden	conduct	was	an	involuntary	act,	that	is,	the	conduct	was	caused	by	a	

reflex,	seizure,	or	some	other	act	over	which	the	defendant	had	no	conscious	

control.”		State	v.	Griffin,	2017	ME	79,	¶¶	17,	19,	159	A.3d	1240	(emphasis	in	

original);	see	also	State	v.	Morrison,	2016	ME	47,	¶	9,	135	A.3d	343.		“Voluntary	

conduct	 is	 the	 result	 of	 an	 exercise	 of	 [a]	 defendant’s	 conscious	 choice	 to	

perform	 [it],”	 whatever	 the	 source	 of	 the	 motivation	 to	 do	 so,	 “whereas	

involuntary	 conduct	 includes	 reflex[es],	 convulsion[s],	 or	 other	 act[s]	 over	

which	 a	 person	 has	 no	 control.”	 	 Morrison,	 2016	 ME	 47,	 ¶	 7,	 135	 A.3d	 343	

(alterations	in	original).		“Conscious	choice	is	best	understood	by	what	it	is	not:	

a	reflexive	or	convulsive	action.”		Id.	¶	9.	

       [¶33]	 	 To	 his	 credit,	 Burbank	 does	 not	 argue	 that	 the	 alcohol	 allegedly	

produced	in	his	gut	made	his	operation	of	his	vehicle	physically	involuntary	or	

the	result	of	a	reflex	or	convulsion	over	which	he	had	no	conscious	control.		

       [¶34]		The	constitutional	right	to	present	a	defense	is	not	unlimited.		A	

defendant’s	 “right	 to	 compulsory	 process	 does	 not	 provide	 him	 with	 ‘an	
                                                                                     21	

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

inadmissible	under	standard	rules	of	evidence.’”		State	v.	Cross,	1999	ME	95,	¶	7,	

732	A.2d	278	 (quoting	 Taylor	 v.	 Illinois,	 484	 U.S.	 400,	 410	 (1988));	 see	 also	

State	v.	Willoughby,	507	A.2d	1060,	1068	(Me.	1986).	

      [¶35]		To	be	admissible	under	M.R.	Evid.	702,	a	trial	court	must	determine	

that	 proffered	 expert	 testimony	 “(1)	 is	 relevant	 in	 accordance	 with	 M.R.	

Evid.	401,	and	(2)	will	assist	the	trier	of	fact	in	understanding	the	evidence	or	

determining	a	fact	at	issue.”		State	v.	Ericson,	2011	ME	28,	¶	11,	13	A.3d	777.		

The	 evidence	 Burbank	 sought	 to	 present	 through	 his	 proffered	 experts	 was	

irrelevant	to	any	issue	that	would	have	helped	the	jury	understand	the	issues	

and	the	evidence.		After	receiving	an	offer	of	proof,	the	trial	court	could	have—

and	 perhaps	 should	 have—excluded	 the	 evidence	 as	 irrelevant,	 without	

hearing	evidence	regarding	the	reliability	of	the	evidence.		This	Court	should	

decide	 the	 issue	 of	 the	 involuntary	 intoxication	 defense	 directly	 rather	 than	

appear	 to	 acknowledge	 it	 by	 reaching	 the	 expert	 qualifications	 issue	 while	

deferring	the	issue	we	decided	forty	years	ago	“to	another	day.”	

      [¶36]	 	 I	 would	 affirm	 the	 judgment	 and	 hold	 that	 the	 “uncommon”	

defense	offered	by	Burbank	fails	pursuant	to	our	decision	in	West,	rendering	it	

unnecessary	to	reach	the	expert	qualifications	issue.			
22	

	        	        	         	   	   	

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant John M.
Burbank

Matthew R. Gerety, Esq. (orally), Lincoln County District Attorney’s Office,
Wiscasset, for appellee State of Maine
	
	
Lincoln	County	Unified	Criminal	Docket	docket	number	CR-2016-622	
FOR	CLERK	REFERENCE	ONLY	
