Maine Association of
Criminal Defense Lawyers
(MACDL)
P.O. Box 434
Freeport, ME 04032
Tel: 207.865.1457
Fax: 207.865.3302
info@mainemacdl.org |
| For the
Public
OVERVIEW OF
MAINE OUI LAW
In Maine it is a crime to
operate or attempt to operate a motor vehicle with a .08 or
greater blood alcohol level, or while under the influence of
intoxicants. 29-A MRSA § 2411 (1). The state can prove under the
influence by showing the operator is "affected to the least
degree." The State may go forward on either or both theories and
does not need to elect between the two. Tests above .04 but less
than .08 are admissible as evidence of intoxication. The results
of a certified test, breath (Intoxilyzer or "bag test"), or
blood is admissible, and prima facie proof that:
1. The person taking the specimen
was authorized to do so;
2. Equipment, chemicals and other
materials used in the taking of the specimen were of a quality
appropriate for the purpose of producing reliable test results;
3. Equipment, chemicals or
materials required to be approved by the Department of Human
Services were in fact approved;
4. The sample tested was in fact
the same sample taken from the defendant; and
5. The blood-alcohol level or drug
concentration in the blood of the defendant at the time the
sample was taken was as stated in the certificate. 29-A MRSA §
2431(2)(C).
All departments which use a "self
contained" test use the Intoxilyzer 5000. Some have the newer 68
series which includes a breath volume on the printout and some
have the older 66 series which do not. Everyone else uses bag
tests which are sent to the State lab for analysis. Blood tests
are rarely used, primarily in accident and injury cases and a
defendant has no right to demand or require a blood test.
Hospital enzyme tests are sometimes admitted.
BASIC PENALTIES
First offense OUI with a test
under a .15 results in a minimum mandatory fine of $400, and a
90-day loss of license.
A .15 or higher test brings a
minimum mandatory 48 hour jail sentence.
The penalties increase for
subsequent offenses, for aggravators, and if there has been a
test refusal. For example, a first offense that involves a test
refusal mandates a 96-hour minimum mandatory jail sentence and a
$500 fine. Additionally, on a test refusal the Secretary of
State suspends the individual's license for a minimum of 275
days. Second offense within ten years mandates a 7-day jail term
(12 days for a refusal) and a $ 600 fine and 2-year suspension.
Third offense is 30 days (40 for refusal) and $1,000 fine and 4
year license suspension. Fourth offense is a felony with a
6-month mandatory minimum sentence, $ 2,000 fine and 6 year
license suspension. A prior refusal is treated as a conviction
for enhancement purposes, even if there was an acquittal on the
underlying OUI. To understand the statute it is important to
refer to the definitions contained in 29-A MRSA § 2401.
ADMINISTRATIVE SUSPENSION
In addition to the court
proceeding, Maine has an administrative proceeding. The
arresting officer is supposed to forward a copy of the police
reports along with the evidence of test refusal or a test of a
.08 or higher directly to the Secretary of State. The Secretary
of State then administratively suspends the individual's
operator's license. If the suspension is based on a refusal, the
suspension is immediate, although you retain your right to a
hearing. If the suspension is based on the test, then a request
for hearing stays the suspension pending the hearing. The
hearings are before a hearing examiner (who is a lawyer
(usually) working full time for the Secretary of State). The
arresting officer must be present for the hearing although
hearsay is also admissible. The defendant need not personally
appear so long as counsel appears. The hearing is in a small
office with the examiner asking the officer to explain the
probable cause, observations and test process. Defense can then
cross examine and can call witnesses if desired. A short closing
argument is allowed. The hearing is taped with a copy of the
cassette available for a nominal fee. The average hearing takes
45 minutes to an hour and normally the ruling is immediate. The
hearing officer can hold the evidence open for good cause shown,
but the stay is removed during that time. Occasionally more than
one officer comes and the defense can ask that additional
officers appear, but must do so early on, as this is a one shot
hearing. Defendants can put on expert testimony if desired.
PRE-TRIAL PROCEDURE
Most OUI's are misdemeanor
offenses so they originate by complaint in District Court.
District court has limited jurisdiction, and there are only
bench trials. The defendant who wants a jury trial in an OUI has
a right within 21 days of arraignment to request in writing a
jury. Following completion of all pre-trial motions, the case is
then transferred to Superior Court for a jury trial. There are
12 jurors on a criminal jury. The verdict must be unanimous. All
pre-trial motions in both District and Superior Court must be
filed within 20 days of the arraignment date.
PLEA
BARGAINING
The general procedure for
defense of an OUI case, is to request an administrative hearing
before the Secretary of State. This provides a chance at
keeping your license while the charge is pending and a chance to
preview the officer’s testimony. Normally the administrative
hearing occurs before the initial District Court date. A not
guilty plea is entered at arraignment, and a series of pre trial
motions along with a jury request might be filed.
A hearing date is set. At that
hearing, defense counsel will argue either the motions, or
endeavor to negotiate a reduced charge or dismissal based on
various factual and legal arguments. In some case of low tests
or weak facts the DA might agree to a reduction is to a charge
of Driving to Endanger (DTE) which carries no minimum mandatory
jail sentence, but does have a 30 day license suspension
provision.
The ability to plea bargain to a
reduced charge other than an OUI is very dependent on the facts
of the specific case and the policy of the district attorney in
the county where the charge is pending. Prosecutors in the
southern and more populated counties seem to have more
discretion to reduce charges. In the more conservative northern
and eastern counties there is almost no discretion for a
reduction below an OUI. Many cases cannot be negotiated below an
OUI, but there is room for plea discussions by reducing the
level of the charge. For example the refusal language can be
stricken from the complaint on motion of the State. Similarly,
the allegation of a prior conviction, or an aggravating fact can
also be struck. Some counties do not charge priors, but rely on
the judge (or Secretary of State) to impose the penalties
commensurate with the number of priors. The Secretary of State
does not honor plea bargains which affect license suspension if
the defendant pleas guilty to an OUI. Hence even if a second
offense was not pled in the criminal case, the Secretary of
State would suspend the individual's license for 18 months if in
fact it was a second offense. Refusal suspensions are served
consecutively between administrative and court ordered, while
test result-based suspensions are served concurrently.
TRIALS
When the trial opens, if counsel
requests preliminary instructions, most judges will give them.
The State, as the moving party gives their opening statement.
The defense then has the right to give their opening statement.
The court has discretion to limit the length of time of opening
statements although in OUI cases this does not usually seem
necessary. A defendant has the right to reserve opening
statement until the beginning of the defendant's case in chief.
The state calls its witnesses, the defense crosses, and there is
the usual rebuttal recross process. At the conclusion of the
State's case in chief, the defense makes a motion for acquittal.
Once that is denied, (OK usually denied) the defense may put on
any witnesses it chooses. Defense can reserve opening statement
for presentation at that time, but must have some evidence to
present. Following the defense, the government has the
opportunity to present rebuttal witnesses. At the close of all
evidence, the defense again moves for a judgment of acquittal.
Once that is denied, (again) the State gives its closing
argument, followed by the defense closing argument, and the
government is allowed a brief rebuttal argument. The court then
instructs the jury who thereafter retires for deliberations.
EVIDENCE
There are a number of special
evidentiary rules which apply only in OUI cases. Blood alcohol
tests are per se admissible, and failure to comply with
statutory safeguards are not grounds in and of themselves to
exclude the test. 29-A MRSA § 2431. The defendant does have the
right on 10 days written notice to the prosecution to request a
qualified witness to testify on the prima facie test result
certificate. An individual’s own statement of operation
satisfies corpus delicti. Failure to submit to a breath
test is admissible in evidence on the issue of whether or not
the person was under the influence. 29-A § 2431(3).
FIELD SOBRIETY "TESTS" AND HGN
Maine
teaches the standard NHTSA field sobriety tests at the Criminal
Justice Academy. The Law Court has been very deferential to the
state on field sobriety tests. |
|
