Today’s discussion concerns using an expert witness to assist you with the defense agains an OUI charge.

Often times the only people that have an expert witness involved in a case is the government. That’s because the government has plenty of money to spend on their own private army of investigators and expert witnesses. Generally, the typical state expert witnesses is a chemist. The chemists will testify either about the accuracy and reliability of a breath test or the accuracy and reliability of a blood test. If you want to have the best chance of successfully defending your OUI case, it’s really important to think about employing the services of your own expert.

Now, employing an expert can be extremely expensive. As a result, the vast majority of my typical OUI clients don’t employ an expert. Sometimes the reason may be as simple as a lack of finances or that an expert wouldn’t be helpful to the defense. However, when I suggest to a client that we bring an expire on board to assist with the defense of a case, it’s for a good reason. Chances are that that expert can make the difference between an acquittal and a conviction.

Oftentimes, I have clients who chew tobacco. In cases where the officer fails to have the client remove the tobacco and rinse the mouth with water, an expert will be needed to raise doubt about the breath test. Most officers are trained to examine the inside of the subjects mouth to determine if there are “foreign objects” contained therein. The officer’s questioning of the subject may go something like this: “Hey Bill, Joe, whatever your name is, you got anything inside your mouth I should know about?” Perhaps you have some chewing tobacco between your lip and your gum and you say no because you don’t think it’s important. The officer doesn’t bother to check inside your mouth and low and behold, you blow well over the legal limit. Why did that happen?

When you have chewing tobacco in your mouth while you’re consuming alcohol, the tobacco acts like a little sponge and absorbs the alcohol. The reason this is important is because the alcohol that’s in your lungs is very, very minute compared to the alcohol coursing through your bloodstream. When the machine reads the alcohol on your breath and you have alcohol sitting in that little sponge-like piece of dip or chew that’s in your mouth, the machine spits out a falsely elevated breath test result. It doesn’t know the difference between the alcohol in your chewing tobacco and the alcohol in your breath. It basically adds them together and, wall-a! You’re over the legal limit. When that happens, you’ll need an expert witness that can testify as to why the presence of chewing tobacco can invalidate a test and why it’s a violation of the police policies and procedures when it comes to administering a breath test. Without that person, you may not prevail at the Bureau of Motor Vehicle hearing and/or at trial.

Finally, let’s get one thing straight. This is a legitimate and viable defense. Police officers are now learning that the proper procedure for dealing with chewing tobacco is to have the subject remove the tobacco, rinse with clean water and then re-check the mouth. If all remaining tobacco particles are gone, then they should restart the 15 minute wait period in preparation for a breath test. The problem is that too many officers are in a hurry to get the defendant processed and booked so that they can continue on with their shift. When police officers get lazy or rushed, peoples rights get trampled. Don’t let this happen to you!

If you blew over the legal limit and had chewing tobacco in your mouth prior to taking the breath test, pick up the phone and call my office. I can help. Don’t let poor police procedure result in a DUI conviction and loss of license.

Evidence is the key to your operating under the influence (more commonly known as OUI) case, because without it the entire case will be fall apart. There are many different types of OUI evidence, some of which carries more weight than others. Every case is different, and what is most important in your case may be very different than what is most important in another case, even another offense by the same individual. Here are just a few examples, in no particular order, but you should be sure to talk to your professional OUI attorney to learn more in-depth information about evidence in your particular case:

Laboratory Evidence

Lab evidence, such as blood, urine, or breath testing, can be among the most important types of evidence in an OUI case, since it carries the most weight to the jury. Without laboratory evidence working for you or against you, the case may fall apart. The forms of lab evidence are crucial, but there are many factors that can skew the results in your favor and in some cases in the prosecution’s favor.

There are specific rules that govern how laboratory evidence is gathered, calculated, interpreted, transported and stored. If these are not adhered to, the evidence may be thrown out of the case and suppressed prior to the trial phase. Talk to your attorney for more information about laboratory evidence and how it can be used in your case.

Field Sobriety Tests

Standardized and non-standardized testing also play a big role during an OUI case. Oddly enough, although most of us know the different forms of standardized and non-standardized methods, such as the walk-and-turn or counting methods, they are backed by questionable science and therefore prone to abuse. For example, the officer may state that the defendant did or did not pass the test; using this as a means of proving that he or she was operating under the influence of drugs or alcohol at the time. However, while many officers are trained on how to properly administer the sobriety tests, few of them adhere to the principles they were taught. This is another area for exploration on cross-examiniation.

Several medical conditions can explain the inability to complete field sobriety tests; from inner ear issues to physical disabilities, and these are often cited when this becomes an issue. Certain medications can affect your balance or vision as well, and can be a logical explanation for problems in this area. For some cases this information is what makes the case for or against the defendant, and there is a lot of weight put on one of the least scientific forms of OUI evidence.

In Maine, it is perfectly legal for an adult to consume alcohol and drive. It’s only illegal to be impaired by alcohol or be a 0.08 or greater. However, if you haven’t reached the age of 21 and you drive a vehicle with any amount of alcohol in your blood, you have committed a crime and may be charged with a conditional license violation.  As a result, you are looking at a one year loss of license that will be imposed by the Bureau of Motor vehicles.

It’s important to keep in mind that even though you’re over the age of 18 and therefore an adult, you cannot consume alcohol and drive. If you’ve been drinking, are under the age of 21 and stopped by law enforcement, you will be arrested. If you blow a 0.01% BrAC or greater, the BMV will suspend your license. So even though you may not be facing a DUI charge, the penalty for this crime is much more severe than the likely penalty imposed on an adult who blows a .08% BrAC. Maine takes underage drinking and driving seriously and so should you.

So keep that in mind when you decide to go out and have a couple of beers with your buddies. Do not get behind the wheel after you’ve been drinking if you’re impaired or you’re under the age of 21. If you’ve been arrested for violation of a conditional license, please call my office to discuss your case. I look forward to hearing from you soon. Thank you.

Once a police officer charges you with an OUI, the Maine Secretary of State will move to suspend your license (or your privileges to drive in Maine if you’re an out of state driver).  However, with the help of a professional DUI attorney you can request a hearing prior to going under suspension. The purpose of this hearing is to determine whether there was probable cause to believe you were operating a motor vehicle under the influence of alcohol and whether or not you had a BrAC of .08% or higher. In order to suspend your driver’s license or driving privileges, the State must meet the bare minimum due process standards, which is the purpose of holding a hearing.

Limited Time Period

There is a limited amount of time in which to file a request for this hearing, and if you do not follow the rules the window of opportunity will close. In Maine, like many other states, a ten day time period applies and begins to run from the date of your suspension.  If you miss the window and fail to apply for a hearing, you will be barred from requesting a hearing later. If you file a timely request for a hearing, the suspension will be “stayed” until the hearing date.  If the suspension is for a refusal to submit to a chemical test (breath, blood or urine), the suspension will not be stayed and you will remain under suspension unless your attorney prevails at the hearing.

Conditional Licenses

Being granted a conditional driver’s license comes with special regulations that must be strictly adhered to.  The purpose of the license is for work only.  That means you may not drive your car to pick your kids up from school, to do grocery shopping, taking a sick family member to the doctor or any of the other many things normal people need to do during the course of the day. Breaking the rules almost always results in the immediate revocation of the conditional driving privileges as well as additional penalties. Most people apply for the conditional license in order to keep a job, so it is extremely important to follow all the rules of the road during this time.  It is important to remember that if you apply for a work restricted license after suspension by the BMV, any time spent on the work restricted license will NOT be applied to suspension time imposed by the court if convicted of the criminal OUI charge.

Getting Some Help

Although it is possible to request and attend a BMV hearing without the help of a DUI attorney, it is far easier to allow the attorney to do the work for you. He or she understands the process from experience, including the best arguments and defense strategies for this phase of your case. You have enough to worry about throughout your case, and letting your attorney handle as much as possible is a great way to relieve some of the stress surrounding your DUI arrest.

In order to allow the attorney to handle this for you, be sure to contact a professional as soon as you are arrested. This ten day window applies to all cases, so the attorney will need to get working on this quickly. Once the window closes, it is closed, even if you decide later in the case to hire an attorney. He or she cannot apply once the ten-day application period has passed.

Even with professional help from a licensed, experienced OUI attorney, your life could change in a lot of ways if you are convicted of operating under the influence of alcohol or drugs while driving a commercial vehicle. These large vehicles carry the potential for extensive damage to people and property, and the implications mean heavier sentences upon conviction. Here are just a few of the ways that a commercial OUI conviction can change your life, assuming that you were driving your commercial vehicle at the time of the offense:

You lose your driver’s license for at least a year. Individuals who rely on operating a commercial vehicle as their sole source of income will be forced to find another line of work, at least temporarily. Cases that include any type of aggravating factor, such as transporting HAZMAT—hazardous materials—or leaving the scene of the crime, for instance, can carry three years at minimum. A second OUI means that you lose your CDL permanently in most states, with no exceptions for long-term good behavior.

You are not eligible for most early reinstatement methods. When you are operating a passenger vehicle and are arrested for OUI, as long as you follow the police officer’s instructions, have no aggravating factors, and have never been convicted of OUI, there is some chance that you may be allowed to get your license back early. In most situations, this means that you will need to get an ignition interlock device (IID), attend court-ordered alcohol education courses, or something similar. With a commercial OUI conviction, this is no longer an option.

It could be harder to find a job once you get your CDL back. With the OUI on your record, top trucking companies or bus agencies may be less likely to hire you, especially during the first three years after conviction. It could be very challenging to find a company that is willing to take the risk even if your behavior since the conviction has been stellar and you followed all of the recommendations and mandatory penalties of the court. This could mean finding an alternative employment source even after you have finished the court-ordered period of license suspension.

Social stigma can be even fiercer. This is especially true if there were deaths or serious injuries related to your OUI arrest, but even extensive damage to the vehicle is remembered for a very long time. When the media gets involved with the situation, such as because of an accident related to the OUI, the public will be made aware of the fact that alcohol was involved, too. This can be a problem for years to come, until people have forgotten that your name was related to a certain case.

Today’s topic of discussion concerns the most important of all the standardized field sobriety tests, the Horizontal Gaze Nystagmus test. Nystagmus is defined as the involuntary jerking of the eyes. Horizontal Gaze Nystagmus is defined as the involuntary jerking of the eyes as they gaze to the side. Now, what we mean by Nystagmus in Horizontal Gaze Nystagmus is this: Think of a set of windshield washers or excuse me, windshield wipers. As the windshield wipers go across a wet windshield, they go across in a very smooth manner. If the windshield is dry and you turn on your windshield wipers, they stutter, they skip. That is what your eyes do when the police officer is checking them for Horizontal Gaze Nystagmus.

There are many different causes of Nystagmus including the flu, inner ear disorders, eye strain, sleep deprivation, consumption of caffeine or nicotine and neurological issues. These are just a few causes, only one of which is alcohol. I strongly disagree with the lack of scientific principles behind this battery of test. However, it is an accepted standardized field sobriety test as used here in Maine and the prosecutor can argue that the evidence of Horizontal Gaze Nystagmus is indicative of someone who is under the influence of alcohol. Most people think, “well I think I did fine on that test”. Unfortunately, you have no idea how well you did or how poorly you did on that test because HGN doesn’t test your balance; you can’t know subjectively how you did. You can’t practice for Horizontal Gaze Nystagmus. It’s literally looking for the involuntary jerking of the eyes.

Now, according to NHTSA (National Highway Transportation Safety Administration), 4 or more clues means a 77 percent probability that the person being tested is a 0.10 or greater. Now that sounds all fine and dandy; but that’s only a 3 out of 4 chance that you are in fact impaired. What if you fall into that 1 out of 4 category? Just importantly, or perhaps more importantly, what if the officer administers the test improperly or evaluates what he sees incorrectly? Is that a fair result?

It’s extremely important to get somebody involved who truly understands the in’s and out’s behind standardized field sobriety testing. Because in the state of Maine, the police use Horizontal Gaze Nystagmus to determine impairment, as well as the walk and turn and the one-leg stand tests. And the prosecutor will use the results of these tests against you. If you have questions or if you’ve been arrested for OUI, please do not hesitate to pick up the phone and call my office. I look forward to speaking with you soon. Thank you.

Although getting convicted of driving under the influence of drugs or alcohol is a serious situation regardless of what you are driving, it is especially serious when you are driving a commercial vehicle. You can kill people when driving a passenger vehicle under the influence, but you have a far greater capacity to kill, damage property, or cause serious bodily injuries with a bigger type of vehicle. Buses, tractor trailers, large tractors, and similar vehicles have a tremendous weight capacity, meaning that they can inflict far more damage when they are not driven or operated by someone with a very clear mind and quick reflexes.

Driver’s License Suspension

There are separate types of driver’s licenses for commercial vehicles versus passenger vehicles, and the penalty related to driving privileges is also different if you are convicted of driving under the influence of drugs or alcohol. For passenger vehicles, you lose your license for ninety days (about three months) in most cases, unless you refused the BAC testing, which tacks on another nine months or more. For commercial vehicles, the minimum suspension for a first offense is one year, without any aggravating factors. Transporting hazardous materials (HAZMAT) is considered one of these factors, and it can triple the length of the suspension.

The news gets even worse if you’ve been previously convicted of DUI. A second offense DUI means you lose your passenger car license for 3 years. Unfortunately for those who possess a CDL, a second offense DUI means a LIFE TIME loss of your CDL privileges. That means you’re going to have to look for a new line of work; and in this economy, that’s a tough and uncertain proposition.

The long-term penalty if you are convicted is serious, but you could lose a paycheck even in the beginning with a commercial DUI arrest. In Maine, if you are arrested for DUI and a Breathalyzer or similar BAC test shows that you have alcohol or drugs in your system you will not be allowed to continue with your delivery/transport for a minimum of twenty-four hours.

Fines

Another focal point in a DUI conviction is the monetary fines that have to be paid prior to reinstating your driver’s license, whether it is a CDL or standard driver’s license. These fees vary based on many different factors for both types of vehicles, such as aggravating factors, repeat offenses, refusal to submit to Breathalyzer or standardized testing, and other things. If you decide to violate the out-of-service order following your arrest, there are additional fines added as well, ranging from $1,100 to over $2,000.

Interesting Notes

It is important to keep in mind that if you are arrested for DUI in your personal vehicle, but hold a CDL, the same commercial penalties still apply. In other words, you cannot drive your commercial vehicle for twenty-four hours, still face the increased monetary fines, and lose your CDL for one to three years on a first offense conviction or BMV suspension. A DUI is considered a Major Traffic Offense, and under the Motor Carrier Safety Improvement Act (MCSIA) that was implemented in 2005 all of these offenses affect your CDL and your regular driver’s license even if you are driving a passenger vehicle at the time of the offense.

Today we’re going to discuss very briefly what happens in an OUI case when you’ve been arrested and you’re under the age of 18.  In Maine, as in most states, juvenile law applies when you’ve been charged with a crime and you’re under the age of eighteen. If you’ve been charged with a DUI and you’re under the age of 18, it is a juvenile offense. Now in some ways, the fact that the case will be in the juvenile system is to your advantage. In other ways, it becomes more problematic.

For example if you blow a 0.08% BAC and you’re over the age of 21, the mandatory minimum penalty would be a 90-day loss of license and a $500 fine. There’s no mandatory jail. On the juvenile side, you could end up doing time at the Juvenile Corrections Center based on your juvenile criminal history and other factors. Now on the flipside, you can end up doing no time on the juvenile side and, more importantly, that OUI would be completely wiped from your adult record. So unlike an adult who was convicted of the DUI and has a criminal record for life, a juvenile would end up having that criminal record sealed.

So, there are advantages and disadvantages to being caught up in the juvenile criminal system. In my estimation there may be more disadvantages than there are advantages. It is a difficult system to deal with. When you have a JCCO involved in your case it’s like being on probation. The conditions of release on your case may be onerous and restrictive at best.

So if you’ve been charged with an OUI and you’re under the age of 18, you will need to get your parents involved immediately. They will be notified and you will absolutely need to get a qualified drunk driving defense attorney involved.

Please feel free to call my office. I look forward to speaking with you soon. Thank you.

Driving under the influence of drugs or alcohol is always a serious crime, no matter what type of vehicle you are driving at the time of your arrest. Having a commercial driver’s license affects many different parts of the DUI arrest, from what type of vehicle you were driving at the time of arrest to the outcome of a conviction. Here are a few of the frequently asked questions surrounding a commercial vehicle and DUI arrest/conviction in Maine:

I was arrested for DUI while driving my personal vehicle. Can I lose my CDL too?

Yes. Regardless of what vehicle you were driving, if you hold a CDL you will lose it for at least one year after a DUI conviction. If you are driving a personal vehicle, your blood alcohol content must be below .08%, and those above this number will lose both licenses if they are convicted of DUI.

My commercial vehicle was carrying hazardous materials when I was arrested for DUI. Will that make a difference?

Carrying hazardous materials will only affect the time period that you lose your CDL if you are convicted of DUI. The suspension period changes from one year to three years for drivers carrying hazardous materials.

My BAC was only .05% when I was arrested for DUI in my commercial vehicle. Is there a difference in the legal limit for those driving commercial vehicles?

Driving under the influence is determined based on a .08% legal limit only for drivers of passenger vehicles. The limit for commercial drivers is half that amount, .04%, in Maine. Any number above this legal BAC limit will result in a DUI arrest.

The legal limit for commercial drivers is .04%, but my BAC was .03%. Why was I still arrested?

Even if you are under the legal limit for commercial vehicle drivers, any number above 0.00% will result in a 24-hour shut down in the state of Maine. After that, you may continue your delivery without needing to be charged for DUI. It is simply a precautionary measure used to prevent commercial vehicle accidents.

How long will I lose my license if I am convicted a second time for DUI in a commercial vehicle in Maine?

There is absolutely no tolerance for a repeat offense in a commercial vehicle, so a second conviction means lifetime loss of CDL driving privileges. You will not be allowed to drive or operate any type of commercial vehicle without this license, and some states will check for this type of revocation before issuing a CDL in that respective state.

Why are commercial drivers treated so differently than drivers of personal vehicles?

On average, a commercial vehicle weighs thousands more pounds than a family vehicle, even a larger personal vehicle such as an SUV. Accidents in commercial vehicles have a far greater likelihood in resulting in more serious end results, such as extensive property damage, serious bodily injuries, and fatalities. For that reason, drivers have to be far more aware of everything going on around them, and having alcohol in your system means lowered ability to focus, impaired vision, and slower reaction time, all elements of a real disaster for commercial vehicle accidents.

Commercial vehicles are particularly dangerous on our roadways, since their size and weight so greatly outmatches the average vehicle. Thusly, there are different rules applicable to commercial vehicles and their drivers, even where driving under the influence of drugs or alcohol are concerned. If you are facing a DUI conviction involving a commercial vehicle, it is critical that you find a professional DUI attorney to fight for your rights and protect your future.

Lower BAC Level

For the average driver of a personal vehicle, the legal BAC limit is .08%, but for drivers of commercial vehicles this number is lowered to half that amount: .04%. If you are caught driving a commercial vehicle and your blood alcohol content is higher than this smaller number you will be charged with driving under the influence, even if you are under the legal limit of .08%. Commercial vehicles are so much larger that they create very serious hazards for other drivers even under optimal conditions, so there is less tolerance for alcohol in a commercial driver’s blood.

License Suspension

It takes a special driver’s license known as a Commercial Driver’s License (CDL for short) to drive these oversized vehicles, in addition to a regular driver’s license. If you are convicted of DUI in Maine, you will not only lose your driving privileges for your personal vehicle, but your commercial driving privileges as well. The minimum suspension period for a CDL is one year unless your vehicle is carrying hazardous materials. In HAZMAT cases the suspension period is a minimum of three years.

Second Offenses

A repeat offense is treated very harshly for operators of commercial vehicles in the state of Maine, with a required lifetime CDL suspension. This could mean losing your source of income and starting over, but keep in mind that the conviction will still be there regardless of what type of driving you are hoping to do and you are unlikely to find any driving-related job. Maine does not have any tolerance for repeat offenses where commercial vehicles are concerned, and losing your livelihood after a second offense is the strongest deterrent imaginable.

Out-of-State Drivers

Like other types of out-of-state drivers, the laws are slightly different for out-of-state commercial drivers as well. Being under the .04% limit while driving a commercial vehicle on an out-of-state license means that you are going to be held for 24 hours, time for the alcohol to leave your system, before you are allowed to continue on your delivery. This holds true for any amount above 0.00% and 0.039%.

Other Situations

Driving your personal vehicle but having a CDL license is a sticky situation if you are convicted of a DUI, even if it is your first offense. Regardless of whether you are operating your commercial vehicle at the time of the arrest, if you hold a CDL and are convicted of DUI your CDL is suspended for a minimum of one year for first offenses. This will still be in addition to the loss of driving privileges on your regular driver’s license.

The legal term for a sentence a convicted criminal is not required to serve is called a suspended sentence. A suspended sentence is handed down during the sentencing portion following a plea or a trial. The judge presiding over a trial has the authority to decide whether or not to suspend all or a portion of the defendant’s sentence.  Some of the factors may be based on prison overcrowding, a person’s criminal background, evidence of remorse, mitigating factors and many other factors, which are too numerous to list. A judge hands down a sentence first, and then decides whether to suspend a portion of it, order a period of incarceration, fine the defendant or some combination thereof. Having a professional criminal defense attorney on your side does not guarantee a fully suspended sentence or similar result, but it can help you learn whether you can even request a fully suspended sentence during the penalty phase.

Probation

When a defendant is sentenced to a period of probation, the sentence normally includes a period of incarceration as well as a suspended portion of imprisonment.  If the defendant violates the terms of his probation, the penalties can range from a night in jail to a revocation of the entire suspended portion of the sentence.  For example, if the defendant is sentenced to 1 year of prison with 9 months suspended and 1 year of probation and the defendant later violates his probation, he could go back to prison for the remaining 9 months.

Deferred disposition

A deferred disposition means that the sentence is deferred for a period of time, during which time the defendant may have to comply with certain conditions such as alcohol/substance abuse counseling, community service, remaining crime free, etc.  At the end of the deferred disposition, the defendant may be able to withdraw his plea and the case will be dismissed IF the defendant complied with the terms of his deferred disposition agreement.  If the defendant violated the terms of his deferred disposition, then the judge can sentence the defendant to ANY lawful sentence, including jail time.  Deferred dispositions are another form of a suspended sentence that we use in Maine.

Postponed sentence

A postponed sentence is considered a suspended sentence in just a few jurisdictions throughout the nation. Postponed sentences are more common in areas where jails are overcrowded, especially if the defendant’s crimes are petty and the defendant has no criminal record. Postponed sentences typically follow the same rules and guidelines as a normal suspended sentence, including the imposition of original punishments if the rules, terms, and conditions are violated in any way.  Maine does not follow a postponed sentence arrangement, rather, we follow the deferred disposition model.