Your Rights In Maine:

As a service to our Portland Maine, and surrounding area Drunk Driving criminal defense clients and prospective clients, we offer the following information regarding your legal rights in the State of Maine. However, this information is not legal advice, and should not be taken as such.

If you have been charged with OUI or another serious alcohol related traffic offense in Maine, you should contact William Bly, OUI defense attorney, immediately to discuss your case.

An OUI charge is a misdemeanor that carries a maximum penalty of up to 364 days in jail as well as the possibility of probation.

If this is a concern, ask your attorney about it.

How long does an OUI stay on my record? In Maine an OUI stays on your record for life. Most other states have similar laws. The effects can result in possible denial of jobs or restrictions on credit if it goes on your credit report. In addition, a conviction can cause an increase or cancellation of your car insurance. What is a nolo plea? When you plead nolo, you are accepting the fact that the State can prove the case beyond a reasonble doubt but you are still maintaining your innocense. Essentially, you are saying "I know you can prove that I committed the crime even though I think I am innocent." The primary benefit of a nolo plea would be to limit use of the plea in a civil suit (for example, if an accident had occurred).

Nolo pleas are not guaranteed to be accepted by the judge and the nolo plea is still treated as a conviction for criminal record purposes. Most judges also will not accept a "nolo" plea for any case in which the driver refused to be tested for blood alcohol level. If a judge does accept it, you may still have stiff fines, perform community service and serve some jail time just as if you entered a guilty plea. Is First Offender treatment or a deferred disposition available for an OUI case? Sometimes. Ordinarily, if a person successfully completes his or her deferred disposition, the charges will be dismissed after the driver is allowed to withdraw his guilty plea. Should you take the official State test of your blood, breath or urine? Once you are arrested for OUI, the officer should must the Implied Consent Notice to you prior to administering a chemical test. The current form is bright green and contains four paragraphs outlining your duties to submit to a chemical test and the possible penalties for refusal. In Maine, all drivers are required to submit to a chemical test at the request of an officer. If you choose to refuse to submit, the penalties are harsh but in some instances, may result in a stronger defense to the criminal case since there is no incriminating BAC result.

There are advantages as well as obvious disadvantages to submitting or refusing to submit to a chemical test in Maine. While you are required to submit to a chemical test, if you refuse to submit, a forcible blood draw cannot be performed without a warrant as it constitutes a search. However, in cases involving death or serious bodily injury where the suspected driver is taken to the hospital, the hospital will take a sample and turn it over to law enforcement.

Anyone who is arrested for OUI where aggravating circumstances exist (serious injury or death), should be aware that the penalty upon conviction is a mandatory minimum of six months in prison for causing a death while driving intoxicated. In all likelihood, the jail sentence would be somewhere north of 2 years depending of course on the individual circumstnaces of the case. An administrative license suspension is not the major concern in this situation. Under those circumstances the driver may find himself in the difficult position of weighing the penalties for a conviction in a vehicle manslaughter death where a BAC was obtained versus a mandatory and lengthy suspension period for refusing to submit to the test.

It is illegal for anyone under age 21 to drive a car with any amount of alcohol in their blood. If an underage driver submits to a breath test and registers a .01% BAC, his or her license is subject to a mandatory one year suspension on a first offense. However, in a criminal case, the prosecutor would be unable to obtain a conviction on an OUI as there is a legal presumption that anyone under a .04% BAC is sober for the purposes of an OUI charge.

On the other hand if an adult driver has an underage passenger in the car and the driver is charged with OUI, an additional 275 day suspension and a mandatory 48 hour jail sentence will be imposed for the aggravating factor of the minor in the vehicle.

If I had an OUI in another state, will it show up in Maine? Yes, OUI/DWI convictions from other states will show up in a computer search conducted by the prosecutor. However, convictions from other states do not show up on every occasion. When we go into court we do not "volunteer" information about prior convictions. However, we must know your full record and be prepared to address this issue if the prosecutor presents it to the court, so always be honest with your attorney.

How will this affect my out of state license? Maine cannot suspend an out of state license. Only your home state can suspend your license. Maine can only suspend your privilege to drive in this state. However, Maine is required by law to notify your home state of any conviction of any traffic offense in Maine.

What is the "10 day" rule? In Maine, if you either refused to submit to the official state test, or if you submitted and had a breathalyzer (Intoxilyzer 5000) result of 0.08 or higher (age 21 or more), .04 or higher (if operating a commercial vehicle), or .01 or higher (if under age 21), the state will attempt to suspend your license or privilege to drive for a period of ninety (90) days to six (6) years or more. This attempt to take away your right to drive will occur PRIOR to any trial (in most cases) and will be automatically entered against you unless you file an "appeal"letter within 10 days after the date of arrest.

Filing an "appeal" permits a postponement and possibly prevents any suspension from occurring. At the very least, a "stay" of any proposed suspension will occur until you have had a chance to have a hearing with an administrative hearing officer from the Bureau of Motor Vehicles.

This is an informal hearing. There will not be a jury and a decision is usually made on the spot by the administrative hearing officer. If you are suspended, the suspension will normally take affect at 12:01am the next day, unless you were already suspended as a result of a refusal in which case you will merely remain under suspension. The hearing is needed to determine if you will be able to retain your driving privileges until the end of your OUI case or if you will lose the right to drive in Maine prior to your trial. Ask me about filing your appeal letter for you and inform others to always consult an attorney immediately to allow proper time to send their 10 day letter, or “appeal.”

The officer never read my Miranda Rights to me. Can I get my case thrown out? In most instances the answer is "it depends". Miranda rights attach only after you are placed under arrest. Any incriminating statements you make while being interrogated prior to being placed under arrest are admissible in court. However, if the officer asks you any questions after you are arrested but before you are advised of your Miranda Rights, any statement you make could then be suppressed at trial. If the prosecutor's case rests solely on this suppressed statement, then your case will most likely be dismissed. However, in most instances, the prosecutor relies on evidence other than your incriminating statement.

Sometimes it is difficult to know when you are under arrest. Under Maine law, if a reasonable person would believe he/she were under arrest and thus, not free to leave, then an arrest has occurred. Although a judge ultimately makes this determination, advising your attorney of all facts surrounding your case can assist him in advising you. Ask me to explain this in more detail during the initial consultation. If I am convicted or plead guilty, will I be required to have an ignition interlock device (IID) placed on my car? IIDs are available in all OUI cases where it is a 2nd or greater offense within the past ten years. Of course, a judge can make an ignition interlock device a condition of probation for any OUI or serious traffic offense. The cost of the ignition interlock device is borne by the defendant.

My out-of-state driver's license is suspended. Can I still get a Maine driver's license? The following scenario occurs with a high degree of frequency: your out-of-state license is suspended/revoked and you have no physical license. The Maine Bureau of Motor Vehicles (BMV) will require that you get a letter of clearance from your previous home state. That, of course, necessitates following the correct procedures to get your out-of-state license reinstated so you can get a letter of clearance.

In some states, your driving privileges can be revoked for life. If you are unfortunate enough to be in that situation, you will not be able to get a Maine driver's license. What is the habitual offender law (HO) and how does it affect my driving privileges? Someone convicted of three serious driving offenses within a five year period has attained the lofty status of being a Habitual Violator.

The most common of these serious driving offenses are OUI, Hit and Run, and Eluding a Police Officer, Driving to Endanger, and Operating after Suspension.

Upon conviction of the third serious driving offense within a five-year period, your driver's license will be suspended indefinitely but at a minimum of three (3) years. No limited permit or probationary license is available during that time. You can get a probationary license for the remaining eighteen (18) months under some circumstances.

The penalties for operating a motor vehicle after classification as an habitual offender are draconian. The penalties start at a thirty (30) day mandatory minimum jail sentence for a first offense misdemeanor and range all the way up to a two (2) year mandatory minimum jail sentence for some felony offenses.

IMPORTANT! Please note that at the time of your conviction of the third serious traffic offense within a five year period, you must either turn in your driver's license (unless your license was confiscated at the time of your arrest) or you must submit a "lost license affidavit." Otherwise, you may not receive credit for any of the time that you are a habitual violator.