Saturday, January 15, 2011

DUI Appeal of the Day (DAD) When the Expert Can't Add or Subtract

In State of Maine v. Caron, --- A.3d ----, 2011 WL 82197 (Me.), 2011 ME 9, the defendant was charged with DUI following a rollover accident resulting in serious injuries to the vehicle's other occupant. At trial, the issues included whether defendant (or the victim) was the driver, and also extrapolation of the defendant's blood alcohol back to the time of driving. The State's expert testified that he concluded that the defendant was the driver based upon the defendant's "left-sided injuries" and the victim's :right-sided injuries". The state expert also calculated the defendant's BAC to be above the limit at the time of driving.

On appeal, the issue was whether the state's expert was competent and qualified to give the above opinions. Why? Because the expert has a learning disability. During voir dire the State's expert, attempting to describe the nature of his condition, testified that, “I do not know right from left and I do not-am not able to add or subtract even simple numbers.” Noting that the State's expert was ultimately asked to calculate Caron's blood-alcohol level and to explain the significance of left-sided and right-sided injuries, the defendant contended that the State's expert's learning disability rendered him incompetent to testify.

Finding no error in the trial court's determination that the expert was competent, the appellate court stated:

As a general rule, “[e]very person is competent to be a witness.” M.R. Evid. 601(a). Pursuant to M.R. Evid. 601(b)(3), however, a person will be disqualified from testifying if the court finds that “the proposed witness lacked any reasonable ability to perceive the matter.” The phrase “any reasonable ability” was included in Rule 601(b) “ ‘to make it clear that even a limited ability to perceive ... may be sufficient to avoid disqualification.’ “ State v. Gorman, 2004 ME 90, ¶ 22, 854 A.2d 1164, 1170 (quoting Field & Murray, Maine Evidence § 601.2 at 244 (2000 ed.)). A trial court's ruling on witness competency is reviewed for clear error. State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263, 265.

We find no clear error in the court's competency determination. Notwithstanding the State's expert's self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of Caron's blood-
alcohol test.

The appellate court held that the expert was qualified and capable to opine, and upheld the conviction. (“When the issue is not what the expert's qualifications are, but whether those qualifications are adequate for the opinion of the expert, the standard of review is abuse of discretion.”).

(Editors note: Keep this one on hand the next time the State suggests that a defense expert is unqualified.)

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