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State v. Michael Minor
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 30
Docket:	Kno-01-297
on briefs:	November 30, 2001
Decided:	February 20, 2002	




	[¶1]  Michael Minor appeals from a judgment of conviction of operating a
motor vehicle while under the influence of intoxicants (OUI), 29-A M.R.S.A. §
2411 (1996),{1} entered after a jury trial in the Superior Court (Knox County,
Atwood, J.).  Minor contends that the court should have allowed him to depose
his treating physician in New Jersey pursuant to M.R. Crim. P. 15.  We are
unpersuaded by Minor's contention and affirm the judgment.
	[¶2]  On November 19, 1999, Minor was arrested and charged with OUI
after failing to properly complete a number of field sobriety tests.  While at the
police station, Minor submitted to an intoxilyzer test that measures blood-
alcohol level.  The intoxilyzer test showed Minor's blood-alcohol level to be
	[¶3]  On January 8, 2001, the day of the call of the criminal trial list in
the Superior Court, Minor filed a motion to take a telephonic deposition of his
treating physician pursuant to M.R. Crim. P. 15(a).{2}  He alleged (1) that his
physician, who resided in New Jersey, would likely be unavailable due to the
inconvenience and expense of having to attend a trial in Maine; (2) that the
doctor would testify that Minor suffered from, and was being treated for,
recurrent heartburn, acid reflux, and a hiatal hernia that episodically caused
him to regurgitate small amounts of stomach contents into his mouth; (3) that
Minor suffered from these conditions on the night of his arrest, thus affecting
the blood-alcohol test; and, (4) that the doctor's testimony was necessary to
prevent a failure of justice.
	[¶4]  The Superior Court (Marsano, J.) denied Minor's motion, and
postponed the trial until April of 2001.  The court stated that Minor could
make the same request to take the deposition by telephone to the trial court in
April, but cautioned Minor that if his motion was again denied, he should be
prepared at that time for his trial with a Maine expert.
	[¶5]  On April 2, 2001, Minor again moved to take a telephonic
deposition of his treating physician in New Jersey.  The motion was again
denied (Atwood, J.).  The one-day trial took place on April 19, 2001. 
	[¶6]  Minor claimed at trial that he failed the intoxilyzer test only
because he suffered from acid reflux and a hiatal hernia.  He testified that his
condition caused him to regurgitate stomach contents into his mouth and that
on the night he submitted to the intoxilyzer test he regurgitated about five
minutes before the test.  The arresting officer, who also administered the
intoxilyzer test, testified that the test measured deep-lung air and that, if a
person regurgitated stomach contents into their mouth up to fifteen minutes
before taking the test, the results might show a higher blood-alcohol level due
to residual-mouth alcohol content.  The officer also testified, however, that he
watched Minor for the entire time prior to administering the intoxilyzer test on
Minor, that he did not observe Minor regurgitate or burp, and that Minor did
not mention that he had regurgitated, nor did he call attention to his
	[¶7]  Following the jury's return of a guilty verdict, Minor took this
	[¶8]  Minor does not dispute that the evidence was sufficient to support
his conviction.  He argues, however, that the court impermissibly denied his
motion for deposition.
	[¶9]  We review a trial court's denial of a motion to depose a witness
pursuant to Rule 15 for an abuse of discretion.  M.R. Crim. P. 15(a) (court
"may" grant motion if prerequisites are established).  Although the granting of
such a motion is within the trial court's discretion, that discretion is not
broad, "and must be exercised with an eye to the policy that depositions are
not favored in criminal cases."  2 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 242 (3d ed. 2000).{4}   
	[¶10]  A defendant's motion to depose a witness will be granted only when
the defendant demonstrates the following:
(1) the prospective witness may be prevented from attending a trial; 

(2) the materiality of the witness's testimony; and,

(3) the possibility of a failure of justice if the deposition is not
M.R. Crim. P. 15(a).

	[¶11]  Although the testimony to be offered by Minor's physician would be
material, we are not persuaded that the two other prerequisites are satisfied. 
Burdens and expenses involved in securing a witness for trial are not to be
given great weight by the trial court in determining whether a person is
unavailable.  State v. Hassapelis, 620 A.2d 288, 290 (Me. 1993). When a
"deposition is sought solely for the convenience of the witness or a party, the
failure of justice requirement of Rule 15(a) will not be met."   David P. Cluchey
et al, Maine Criminal Practice § 15.2, at IV-73 (rev. ed. 1995).  Because Minor
alleged only that procuring his doctor's presence would be inconvenient and
expensive, he failed to establish the first and third prerequisites for the
granting of his Rule 15(a) motion.
	[¶12]  Moreover, Minor testified that he regurgitated stomach contents
into his mouth five minutes before taking the intoxilyzer test due to his
medical condition, the same facts that Minor wanted his doctor to explain. 
The arresting officer hypothesized that if Minor had in fact regurgitated as he
claims then the intoxilyzer test results may have been artificially inflated.  The
trial court acted within its discretion in denying Minor's motions for the taking
of telephonic depositions.
	The entry is:
		Judgment affirmed.
Attorneys for State: Geoffrey A. Rushlau, District Attorney Janice S. Stuver, Asst. Dist. Atty. 62 Union Street Rockland, ME 04841 Attorney for defendant: Roger J. Katz. Esq. Lipman & Katz, P.A. P O Box 1051 Augusta, ME 04332-1051
FOOTNOTES******************************** {1} . Section 2411 states, in pertinent part, the following: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. {2} . M.R. Crim. P. 15(a) provides the following: If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is material and that it is necessary to take the witness' deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment, information or complaint may upon motion and notice to the parties order that the witness' testimony be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place. {3} . Minor's sentence was a fine of $400, plus applicable surcharges and assessments, and his right to drive was suspended for ninety days. {4} . Minor did not take advantage of the procedures available to him for presenting the expert testimony he wanted. In its order denying Minor's first motion, the court postponed the trial for four months and told Minor that, if the testimony was crucial, he should obtain a Maine expert. The court reiterated this sentiment in its second denial of Minor's motion, two and one-half weeks prior to trial. A Maine doctor could have testified as to Minor's diagnoses and the possibility that his condition skewed the intoxilyzer results. Furthermore, even if his treating physician's testimony was absolutely essential to his defense, Minor failed to avail himself of his rights pursuant to the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, 15 M.R.S.A. §§ 1411-1415 (1980). Minor made no attempt to subpoena the doctor for trial pursuant to M.R. Crim. P. 17 (subpoena) and 15 M.R.S.A. §§ 1411-1415.