Folks, welcome to another edition of my blog. Today’s topic of discussion concerns police training and the type of experience, training and education I would expect a police officer to have? In all likelihood, the officer will have graduated from the Maine Criminal Justice Academy and will have attended the police training course. While there are a number of courses that officers are required to complete, the most important ones and the ones most applicable to your case will likely be the OUI Detection & Standardized Field Sobriety Testing course.

In addition, I would expect the officer to have obtained his certification for operating the Intoxilyzer 5000EN (breath test) and perhaps a Drug Recognition Evaluator course. A DRE or Drug Recognition Evaluator course is an important component of the officer’s training where drugs and driving are involved. In Maine, operating under the influence of drugs is defined operating a motor vehicle while under the influence of any substance, legal or illegal, that impairs the mental and/or physical faculties of the operator to any degree.

Getting back to the Standardized Field Sobriety Testing courseÉ This course deals with the administration of the following sobriety tests: the one-leg-stand, the walk-and-turn, and the horizontal gaze nystagmus as well as some of the other alternative but non-standardized tests that may be administered such as the alphabet test, the counting backwards test, and the finger touching test.

An interesting issue concerns the criteria upon which officers are graded on when tested at this course. They are not tested on their ability to properly determine if you have passed or failed the field sobriety tests. Rather, they are tested on their ability to properly administer those tests in the standardized fashion. Therefore, while objective criteria is employed for administering the test, if the officer is unable to correctly interpret the test results, it will likely result in a skewed analysis of your impairment level. The officer’s evaluation of your sobriety is very subjective.

These are just some of the things that your OUI/DUI/DWI defense attorney should be looking at to determine if the officer is qualified to administer the SFSTs as those qualifications may or may not affect the outcome of your case. I hope you find this information helpful and if you have questions or concerns about your particular case, feel free to call my office. I look forward to hearing from you soon. Thank you.

Today’s topic of discussion concerns OUIs, and specifically the issue of Miranda and how that plays into any statements that may or may not be suppressed if your rights have been violated under the Federal or State constitution of Maine. Often times, I have clients say to me, “Bill, I wasn’t Mirandized.” Well, my answer in return is, “You don’t have to be Mirandized unless, one, you are in custody and two, the questions that are asked of you that are designed to elicit self-incriminating evidence.” So, for example, if the officer says, “Johnny, what is your date of birth?” And obviously you’ve already been arrested and you are in the booking process and you blurt out, “Man, I am so drunk I couldn’t tell you my birth date right now.” That issue is actually not suppressible because all the officer is doing is asking for is your biographical information. He did not ask that question to elicit a self-incriminating answer even though you blurted out an answer that is clearly self-incriminating.

Now, what happens when the officer first approaches your car and says, “License and registration,” smells alcohol on your breath and says, “Have you been drinking?” Does that in and of itself trigger Miranda? Generally, no. While that answer is clearly designed to elicit self-incriminating information, you are not yet in custody. While the roadside stop is a seizure, under the law it is not tantamount to an arrest or custody.  Therefore, any information you give to law enforcement at the very beginning of that investigation will not be suppressed as there was no violation of your constitutional rights.

Finally, keep in mind that only the government can violate your constitutional rights.  If a citizen violates your constitutional rights, there is no remedy for that violation.  For example, if a citizen reports your car as driving drunk and LIES about what he/she sees and the police reasonably rely on that information, the stop is still good.  That’s because a remedy for violation of your constitutional rights is only available when the government or a person/entity acting on behalf of the government violates your rights.

If you have any questions or you have been arrested for an OUI, please call my office. I look forward to hearing from you soon. Thank you.

Today’s topic of discussion concerns OUIs and what is referred to as “Reasonable Articulable Suspicion” or “what an officer needs in stop your car.” Oftentimes, an OUI investigation stems from a speeding violation. The client may be exceeding the speed limit by a lot or a little.  Does the speed itself matter?  No.  The officer can stop you when he has probable cause to believe you committed a speeding offense based on that a radar reading. The law does not distinguish between driving 5mph over the speed limit or 25mph over the speed limit.  Either scenario is a traffic violation and provides the officer with a legitimate reason to stop your vehicle. Furthermore, the officer can stop you for any violation of the road or a safety violation which includes speeding, failing to stop for a stop sign, failure to use a turn signal, improper lane change, following too closely, display of an expired registration or inspection sticker, etc.

If a police officer stops your car for “erratic operation”, that may mean you were crossing the center line or fog line; it may mean you were drifting within your lane or swerving; it may mean you were driving 10mph or more under this speed limit.  Any of the aforementioned reasons as well as others provide the officer with legitimate grounds to pull you over for suspicion of drunk driving in the state of Maine

What happens if you’re in the parking lot and an officer comes up behind you, parks his cruiser next to you and walks up to you as you’re exiting your vehicle and begins to ask you questions? Is that a “stop”  Probably not as you are technically free to leave and you may refuse to answer his questions.  Under the law, he hasn’t restricted your right to leave the area and hasn’t exercised his authority to a degree that would a “reasonable person” to believe they were not free to leave. Of course everyone’s case is different and the outcome of your particular case is fact dependent.

There are many instances where damaging evidence in your case may be suppressed for a violation of your constitutional rights.  However, your facts may be very different from your friend’s or neighbor’s case so you should speak with a drunk driving defense attorney about the particular circumstances of your case.

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.