State of Maine v. DuCasse
Opinion
STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CRIMINAL ACTION DOCKET NO. CR-OB-812 NM - I<f; N '/ICi/;)..O\O STATE OF MAINE
v. ORDER ON DEFENDANT'S MOTION TO EXCLUDE EVIDENCE AND
HEATHER DUCASSE, TESTIMONY ON BLOOD ALCOHOL TEST RESULTS
Defendant
The defendant moves to exclude evidence and testimony on the defendant's
blood alcohol test results. The defendant argues first that the State's spoliation of
evidence requires exclusion of the test results because the blood specimens should have
been refrigerated while in Sergeant Cowan's custody and because the original data of
the tests performed on 7/14/08 was lost. The defendant argues that expert testimony
regarding the test results must be excluded because the expert cannot establish
underlying facts or data.
The defendant's blood sample was placed in Sergeant Cowan's cruiser on
7/11 /08 and stored at his home until the sample was delivered to the Maine Health and
Environmental Testing Lab (HETL) on 7/14/08. The sample was not refrigerated
during this period. The kit was properly sealed by Sergeant Cowan and arrived at the
HETL properly sealed. There is no evidence on this record that the kit was opened or
tampered with prior to delivery at the HETL.
Based on the testimony of Stephen Pierce, the court concludes that failure to
refrigerate the sample did not affect the integrity of the sample. Blood kits are received
by the HETL via regular mail, certified mail, UPS, and delivery to the drop box. None
of these kits is refrigerated.
Mr. Pierce considers section B(6) of chapter 270 of the DHHS's rules for sample
collection to apply to drug cases because some drugs break down more rapidly if stored
at room temperature. (Def.'s Ex. 3.) He agreed that refrigeration of blood sample is
preferred because there can be a slight decrease in the alcohol content of the sample
when stored at room temperature. As long as the proper tubes are used for the sample,
as happened in this case, the alcohol content will not increase.1
On 7/14/08, the defendant's sample was delivered to the HETL. During the
afternoon of that day, Mr. Pierce prepared a worksheet and recorded the standards and
controls and sample he would run and the order in which the work would be done.
(State's Ex. 19.) He prepared glass vials with the internal standard solution and loaded
the 18 vials into the auto-sampler numbered tray and started the gas chromatograph.
He left for the day before the test was completed. The auto-sampler either works or, if
there is a problem, stops and does not finish the test.
This test was completed and the results were appropriate based on the standards
and controls and accuracy requirements. (State's Ex. 19.) The printout from the gas
chromatograph computer shows the test results graphically and numerically. (State's
Ex. 1.) Collection of data on the substance in each vial requires a total of approximately
four and one-half minutes, which occurred in this test. The report shows no indication
of an interruption. The fact that the printout does not report accurate times does not
affect the accuracy of the test. ag.)
I The Glover study confirms Mr. Pierce's conclusions: "[s]amples exposed to rather harsh conditions, i.e. high heat, will not cause an elevated alcohol concentration. The loss of alcohol during the first 3 days while unrefrigerated suggests that it would be prudent to refrigerate samples whenever possible." (Def.'s Ex. 2 at 337.)
Because he made a new batch of the internal standard solution, Mr. Pierce on
7/15/08 performed a new calibration curve. The original results were not valid because
the original calibration curve was not valid. From the data collected, the computer then
recalculated values for the calibrators, standards, and samples. When the results were
saved, the only change in the worksheet was the numbers in the columns labeled G/DL
and G/DL, grams per deciliter, on page one of the worksheet. Neither the graphs nor
the retention times changed. The data was recalculated, not overwritten; the results
were overwritten. Mr. Pierce certified the test result. In fact, because so many
standards were used for this one sample, this test result is more reliable than when the
usual process is used.
On this record, the court concludes that from 7/14/08 to 7/15/08, the sample
order did not change and the time intervals in which the samples were run remain
consistent with a valid test result. The State has not destroyed evidence and has not
acted in bad faith. State v. St. Louis, 2008 ME 101, <JI 7, 951 A.2d 80, 81; State v. Kremen,
2000 ME 117, <JI 15, 754 A.2d 964, 968. Based on this conclusion, an expert witness
would have the ability to disclose underlying facts on cross-examination. M. R. Evid.
705.
The entry is
The Motion to Exclude Evidence and Testimony on Blood Alcohol Test Results is DENIED.
Date: January 19, 2010 Nancy Mills Justice, Superior Court
STATE OF !"!.AINE SUPERIOR COURT vs KENNEBEC, ss. HEATHER A DUCASSE Docket No AUGSC-CR-2008-00812 P.O. BOX 598 BELGRADE LAKES ME 04918 DOCKET RECORD
DOB: 09/16/1978 Attorney: PETER DETROY State's Attorney: EVERT FOWLE NORMAN HANSON & DETROY 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 RETAINED 10/23/2008
Attorney: THOMAS MARJERISON NORMAN HANSON & DETROY 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 RETAINED 10/27/2009
Filing Document: INDICTMENT Major Case Type: HOMICIDE Filing Date: 10/16/2008
Charge(s)
1 MANSLAUGHTER 07/11/2008 BELGRADE Seq 4248 17-A 203 (1) (A) Class A
2 OPERATING UNDER THE INFLUENCE-DEATH 07/11/2008 BELGRADE Seq 11185 29-A 2411 (l-A) (D) (l-A) Class B
Docket Events:
10/16/2008 FILING DOCUMENT - INDICTMENT FILED ON 10/16/2008
TRANSFER - BAIL AND PLEADING GRANTED ON 10/16/2008
TRANSFER - BAIL AND PLEADING REQUESTED ON 10/16/2008
10/16/2008 BAIL BOND - $50,000.00 SURETY BAIL BOND SET BY COURT ON 10/16/2008 NANCY MILLS , JUSTICE
10/17/2008 BAIL BOND - $30,000.00 SURETY BAIL BOND FILED ON 10/17/2008
Bail Amt: $30,000 Surety Type: BAIL LIEN Surety Value: $0 County: KENNEBEC County Book 10: 9885 Book Page: 203 Date Bailed: 10/17/2008 Prvdr Name: HEATHER DUCASSE Lien Issued: 10/17/2008 Rtrn Name: HEATHER DUCASSE Lien Discharged:
10/22/2008 Charge(s): 1,2 HEARING - ARRAIGNMENT SCHEDULED FOR 10/28/2008 @ 8:30
10/23/2008 Party(s) : HEATHER A DUCASSE ATTORNEY - RETAINED ENTERED ON 10/23/2008 Page 1 of 6 Printed on: 01/19/2010
HEATHER A DUCASSE AUGSC-CR-2008-00812
DOCKET RECORD
Attorney: PETER DETROY
10/23/2008 Charge(s): 1,2 HEARING - ARRAIGNMENT NOTICE SENT ON 10/23/2008
10/28/2008 Charge(s): 1,2 HEARING - ARRAIGNMENT HELD ON 10/28/2008 NANCY MILLS , JUSTICE READING WAIVED. DEFENDANT INFORMED OF CHARGES. COpy OF INDICTMENT/INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS 10/28/2008 Charge(s): 1,2 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 10/28/2008
10/28/2008 TRIAL - DOCKET CALL SCHEDULED FOR 12/04/2008 @ 9:45
11/26/2008 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 11/25/2008
Attorney: PETER DETROY
12/03/2008 MOTION - MOTION TO CONTINUE GRANTED ON 12/03/2008 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL
12/03/2008 TRIAL - DOCKET CALL CONTINUED ON 12/03/2008 JOSEPH M JABAR , JUSTICE
12/03/2008 Charge(s): 1,2 TRIAL - DOCKET CALL SCHEDULED FOR 01/06/2009 @ 9:15
12/26/2008 Charge(s): 1,2 TRIAL - DOCKET CALL CONTINUED ON 12/26/2008
12/26/2008 Charge(s): 1,2 TRIAL - DOCKET CALL SCHEDULED FOR 03/03/2009 @ 10:00
03/03/2009 Charge(s): 1,2 TRIAL - DOCKET CALL HELD ON 03/03/2009 JOSEPH M JABAR , JUSTICE Reporter: JANETTE COOK Defendant Present in Court 03/03/2009 Charge(s): 1,2 TRIAL - DOCKET CALL SCHEDULED FOR 06/02/2009 @ 10:15
03/04/2009 ORDER - SPECIAL ASSIGNMENT ENTERED ON 03/04/2009 JOHN NIVISON, JUSTICE
05/06/2009 MOTION - OTHER MOTION FILED BY STATE ON 05/06/2009
DA: ALAN KELLEY MOTION FOR SPECIAL SETTING.
05/06/2009 MOTION - OTHER MOTION FILED BY STATE ON 05/06/2009
MOTION FOR SPECIAL SETTING 06/01/2009 Charge (s): 1,2 TRIAL - DOCKET CALL NOT HELD ON 06/01/2009
06/18/2009 MOTION - OTHER MOTION FILED BY DEFENDANT ON 06/18/2009 Page 2 of 6 Printed on: 01/19/2010
HEATHER A DUCASSE AUGSC-CR-2008-00812
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