MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2014 ME 143
Docket:   Aro-14-135
Argued:   October 28, 2014
Decided:  December 18, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and HJELM, JJ.



                                  STATE OF MAINE

                                           v.

                              GRAYDON E. ADAMS JR.

SILVER, J.

         [¶1] Graydon E. Adams Jr. appeals from a judgment of the trial court

(Aroostook County, Hunter, J.) convicting him, on his conditional plea,

M.R. Crim. P. 11(a)(2), of operating a motor vehicle under the influence.

29-A M.R.S. § 2411 (1-A) (2013). On appeal, Adams challenges a preliminary

ruling by the court (Cuddy, J.) granting the State’s motion in limine to exclude

evidence of the results of a breath-alcohol test administered to Adams at his

workplace. We vacate the judgment and remand this case for further proceedings.

                                  I. CASE HISTORY

         [¶2] No transcript of the hearing before the trial court has been provided and

the record on appeal is limited.       Therefore, the following facts are from the
2

documents filed by the parties and the limited record created incident to the

conditional plea.1

        [¶3] On September 11, 2012, Adams was at his place of employment, the

Maine Military Authority in Limestone. Adams was “observed to be emitting an

odor of alcoholic beverage,” and his employer asked him to submit to a breath test.

The employer allegedly used a self-contained portable breath-alcohol testing

device. After the results showed that Adams had indicators of alcohol in his

system, Adams’s employer informed Adams that “company policy required him to

be sent home on unpaid leave.”

        [¶4]     Adams alleges that around the time that he left his employer’s

premises, “a Maine Military Authority employee called the dispatch for the

Limestone Police Department to report that [Adams] was driving a van South on

Route 89 and that he was under the influence.” Sometime after the alleged call

from Adams’s employer, a Limestone Police Department Officer stopped Adams

and arrested him after administering several field sobriety tests. The record does




    1
       Although both parties agreed that the testing at Adams’s workplace was not certified by the
Department of Health and Human Services, the State asserts in its brief that it disagrees with the facts as
presented in Adams’s brief, and it asserts that because the Superior Court held no evidentiary hearing,
most of the facts argued in Adams’s brief were not before the court. For example, Adams states in his
brief that the workplace breath test resulted in a reading of 0.04, but those results were not otherwise in
the record before the court.
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not indicate how much time passed between the test administered at Adams’s

workplace and an intoxilyzer test administered at the Caribou Police Department.

         [¶5] Adams was charged with operating under the influence, he requested a

jury trial, and his case was transferred to the Superior Court.2 The State filed a

motion in limine seeking to preclude Adams from using evidence of the workplace

test result to challenge the accuracy of the State’s test result. The State argued that

the testing device used at Adams’s workplace was unreliable and not approved by

the Department of Health and Human Services (the Department) pursuant to the

Motor Vehicle Code, 29-A M.R.S. § 2524(5) (2013).3 According to the court’s

written decision on the motion, at the hearing on December 16, 2013, counsel for

Adams argued that he “should be given [t]he opportunity to lay a foundation

regarding the validity and reliability of the testing machinery.” The court ruled

   2
     Following the initial charge, Adams filed a motion pursuant to M.R. Crim. P. 41A to suppress all
evidence obtained in the September 11, 2012, stop and search as in violation of his rights under the
Fourth Amendment of the United States Constitution and Article 1, Section 5 of the Maine Constitution.
That motion was denied by the Superior Court and is not at issue in this appeal.
   3
       Section 2524(5) provides:

         For purposes of this section, only collection kits having a stamp of approval affixed by
         the Department of Health and Human Services may be used to take a sample specimen of
         blood or urine, except that a self-contained, breath-alcohol testing apparatus if reasonably
         available may be used to determine the alcohol level.

         Approved breath-alcohol testing apparatus must have a stamp of approval affixed by the
         Department of Health and Human Services after periodic testing. That stamp is valid for
         no more than one year.

29-A M.R.S. § 2524(5) (2013).
4

that the workplace test results would be inadmissible pursuant to section 2524(5)

and granted the State’s motion, excluding any evidence of the workplace

breath-alcohol test result to challenge the accuracy of the State’s intoxilyzer test.

The court concluded that “[a]bsent a certification of the testing apparatus with an

approved certification from [the Department], the test results are not admissible.”

       [¶6]      Adams       entered   a   conditional   guilty   plea   pursuant     to

M.R. Crim. P. 11(a)(2).      He was sentenced to serve seven days in Aroostook

County Jail and pay $880 in fines and surcharges, and his right to operate a motor

vehicle was suspended for three years—the mandatory minimum sentence for

operating under the influence with one prior conviction. Adams then appealed the

order on the motion in limine. His sentence, fine, and license suspension were

stayed by order of the court pursuant to 29-A M.R.S. § 2483(5) (2013) pending

resolution of this appeal.

                               II. LEGAL ANALYSIS

      [¶7] Adams argues that the trial court committed an error of law by relying

on the certification requirements of section 2524(5) to exclude any evidence

concerning the results of the breath test administered at his workplace. The State

contends that Adams failed to make an offer of proof pursuant to

M.R. Evid. 103(a)(2) and has therefore failed to preserve this issue for appeal. We

conclude that the trial court erred as a matter of law in relying on section 2524(5)
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to exclude evidence of the workplace breath-alcohol test and denying Adams the

opportunity to lay a foundation regarding the test’s validity and reliability.

A.       The Applicability of Section 2524(5)

         [¶8] “We review a trial court’s [action on] a motion in limine for an abuse

of discretion and its legal conclusions de novo.” State v. Dube, 2014 ME 43, ¶ 8,

87 A.3d 1219. Statutory interpretation is a matter of law in which “our primary

purpose is to give effect to the intent of the Legislature.” State v. Mourino,

2014 ME 131, ¶ 8, --- A.3d. --- (quotation marks omitted). “We seek to discern

from the plain language of the statute the real purpose of the legislation . . . . If the

statutory language is clear and unambiguous, we construe the statute in accordance

with its plain meaning in the context of the whole statutory scheme.”                               Id.

(quotation marks omitted).

         [¶9]    Pursuant to section 2524(5), “[a]pproved breath-alcohol testing

apparatus must have a stamp of approval affixed by the Department of Health and

Human Services after periodic testing.” Citing cases in which we refused to admit

into evidence the results of uncertified “ALERT” tests offered by the State,4

see, e.g., State v. Ifill, 560 A.2d 1075 (Me. 1989), the State maintains that the

workplace breath-alcohol test is inadmissible because it lacks the Department

     4
     “[T]he ALERT test is an orange box that a person blows into and that registers ‘pass’ or ‘fail.’
Although the test does not register a precise number, a ‘fail’ reading indicates a blood alcohol content
above .10%.” State v. Ifill, 560 A.2d 1075, 1075 (Me. 1989).
6

approval required by section 2524(5). Those decisions, however, are inapposite

because they relate to the admissibility of breath tests administered by the State

and (1) offered by the State to attempt to prove an element of the crime of

operating under the influence, see, e.g., Ifill, 560 A.2d at 1077 (stating that the

results of a state-administered portable ALERT test are inadmissible), or

(2) offered by a defendant attempting to rebut the State’s evidence, see State v.

McConvey, 459 A.2d 562, 569 (Me. 1983) (“Blood-alcohol test results may be

admissible as rebuttal evidence provided the results are reliable.”).

       [¶10] We agree with Adams that the accuracy of the State’s evidence

regarding the administration and the result of an intoxilyzer test may be challenged

by evidence, including evidence of another demonstrably reliable blood or breath

test result, that is not derived from a machine with a certificate as required by

29-A M.R.S. § 2524(5). A defendant is, thus, able to challenge the reliability of

test results offered by the State by any appropriate means that is otherwise

admissible in evidence—and the State may, of course, oppose its admission

through evidence showing that the defendant’s evidence is unreliable.

      [¶11]    We reach this conclusion after examining the overall statutory

scheme. Section 2524(5) requires that when a defendant is tested, the police must

use “breath-alcohol testing apparatus [with] a stamp of approval affixed by the

Department.” As Adams points out, section 2524(5) is part of the Motor Vehicle
                                                                                     7

Code’s “Implied Consent” provisions that require a motorist to submit to

blood-alcohol testing when requested by a police officer, and do not apply to

independently administered breath tests offered by a defendant as rebuttal

evidence.   See Mourino, 2014 ME 131, ¶ 8, --- A.3d. --- (noting that we must

“construe the statute . . . in the context of the whole statutory scheme” (quotation

marks omitted)).     The plain language of section 2524 is clear that it does not

extend to tests other than those performed by the State pursuant to a defendant’s

“implied consent” to submit to an officer’s request when “there is probable cause

to believe a person has operated a motor vehicle while under the influence of

intoxicants . . . .” 29-A M.R.S. § 2521(1) (2013).

B.    Preservation of the Issue for Appeal

      [¶12] The State contends that Adams failed to preserve the issue of the

admissibility of his employer’s test because he did not make an offer of proof

pursuant to M.R. Evid. 103(a)(2). When the issue on appeal is preservation of an

objection to the exclusion of evidence, “M.R. Evid. 103(a)(2) requires the

proponent of [the] evidence to make its substance known to the court by an offer of

proof, unless the substance was apparent from the context of the question.” State

v. Howe, 2001 ME 181, ¶ 9, 788 A.2d 161 (footnote omitted). “An offer of proof

should contain not only the facts that are sought to be elicited, but also reference to
8

the facts, circumstances, or legal grounds on which the testimony is admissible.”

Field & Murray, Maine Evidence § 103.4 at 16 (6th ed. 2007).

      [¶13] The State is correct that Adams did not make a formal offer of proof.

But the court’s application of section 2524’s certification requirements caused it to

deny Adams any opportunity to present foundational evidence that could support

the workplace breath-alcohol test’s admissibility. The court stated that Adams had

argued that he “should be given [t]he opportunity to lay a foundation regarding the

validity and reliability of the testing machinery” before the court ruled on the

State’s motion. Thus, Adams properly requested that it permit him to make an

offer of proof. But because the court erroneously interpreted section 2524(5) as

being “dispositive” of the issue, it concluded that any foundational evidence

concerning the portable testing unit’s reliability would be futile and therefore

refused to allow Adams to present his argument or offer of proof. The court thus

held that “testimony of witnesses about the validity and reliability of the portable

testing apparatus would not be admissible.”

      [¶14]    The court’s decision, predicated on a flawed interpretation of

section 2524(5), denied Adams the opportunity to make a formal offer of proof.

Based on the court’s interpretation of the statute, the offer of proof on the issue of

reliability would have been a fruitless pursuit. Because we vacate the court’s
                                                                                      9

decision on the statutory interpretation, on remand, Adams must be afforded an

opportunity to lay a foundation for the reliability of his employer’s test results.

        The entry is:

                           Judgment vacated. Remanded for further proceedings
                           consistent with this opinion.



On the briefs and at oral argument:

        Alan F. Harding, Esq., Hardings Law Office, Presque Isle, for
        appellant Graydon E. Adams Jr.

        John M. Pluto, Asst. Dist. Atty., Prosecutorial District No. 8, Caribou,
        for appellee State of Maine



Aroostook County Superior Court (Caribou) docket number CR-2013-232
FOR CLERK REFERENCE ONLY
