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Second Offense OUI Refusal Dismissed! | Nielsen Group Law

In order to win at Court, the State needs to meet its burden to show that the Defendant committed the crime.  The State must prove each element of the crime beyond a reasonable doubt.  If the State cannot meet that burden, then the Defendant wins!  This is a victory article showing how I got a 2nd Offense Refusal dismissed!

In Order to get a Conviction the State Must Prove Each and Every Element of the Crime Beyond Reasonable Doubt.

With this in mind, I would like to share an experience where I zealously advocated for a dismissal on a second offense OUI refusal. I fight for my clients.  In this case I knew the State could not prove an essential element of the crime – Operation of a Motor Vehicle.

Maine OUI Law: The Statute

The statute for Maine OUI is 29-A M.R.S.A. Section 2411.  This statute contains the language for all the various OUI charges possible in Maine.  It covers a non-aggravated first offense through all types of subsequent offenses.  In order for the State to convict you for an OUI charge, they need to prove beyond a reasonable doubt each element of an OUI .

Operating Under the Influence is defined as:

Operating a car or other motor vehicle;

  1. While under the influence of intoxicants; or
  2. While having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath

A second offense OUI charge is a Class D misdemeanor crime.  The difference with an OUI refusal appears in the mandatory minimum penalties, which are as follows:

Penalties for a Second OUI with OUI refusal

License Suspension
2nd Offense  $900.00 with Refusal 12 days jail with Refusal 3 years plus consecutive administrative suspension time for the Refusal Suspension

The administrative suspension imposed by the BMV often has the most significant impact in OUI Refusal cases:

  • First Refusal- 275 days license suspension
  • Second Refusal- 18 month license suspension
  • Third Refusal- 4 year license suspension

What makes these license suspensions so devastating for most clients is the fact that they must be served consecutively (one and then the other) to any court-imposed suspension.   In my client’s case, he was facing not just a Second Offense OUI but a First Refusal.  From the BMV, he would have faced a 275 days license suspension in connection for his first refusal.

If convicted, he would have seen a mandatory minimum sentence of 12 days jail, $900 fine, and 3 years loss of license (ran after the 275 was served for the refusal).  Maximum penalties could have included up to a $2,000.00 fine and 364 days jail time.

Facts of the Case:

It was in the middle of winter in Maine.  Two police officers were responding to a call regarding a vehicle off the road, and a report of a very intoxicated individual that had left the scene.  The officers found the vehicle unoccupied and began a lookout for the operator.   The police  had no idea where the individual they were looking for was heading.  One officer waited by the vehicle.  The other officer headed down the road.  Heading towards town, the officer came across a truck with two passengers heading towards the stranded vehicle.   The same officer soon received a call from the officer waiting at the stranded vehicle that the same truck had stopped there.  The operator of the truck was very intoxicated.   The officers convened at the stranded vehicle and one officer talked to the driver of the truck. My client was the passenger in the truck, and he was pretty intoxicated as well.

Snow-storm-pickup-truckThe operator of the truck was arrested for OUI, but he dropped the dime on my client.  He accused my client of being the operator of the stranded vehicle.   The driver of the truck told the officer that while he as at a bar, my client came in and asked for a ride back to the stranded vehicle.  Needless to say, this statement made my client upset.  My client denied everything while becoming belligerent with the police. He denied drinking. He denied driving.  My client even denied knowing the registered owner of the vehicle.  Luckily, the stranded vehicle was not registered to him.  The other fellow was very cooperative, as he was pointing the finger at my client for operating the stranded vehicle while drunk.

A good fact for the defense

For whatever reason, the police did not bother to conduct Standardized Field Sobriety Tests (SFST’s) on either person.  Nor did the two officers attempt to contact the registered owner of the stranded vehicle to see if my client had been driving it.  They just took both suspects to the police station for a breath test.  The cooperative guy provided a test.  My client, while continuing his spirit of uncooperativeness, refused to provide a breath sample and was charged with an OUI refusal.

For a Maine OUI defense lawyer, these are some great facts!

Weaknesses in the State’s Case

Providing a breath sample is an obligation for all Maine citizens.  I would never recommend that a person refuse to provide a chemical sample. But, by refusing, you deprive the State of its best evidence in an OUI.  This is the Blood Alcohol Content (BAC) printout from the intoxylizer indicating you are over a 0.08.  This leaves the state with no choice but to prove “impairment” by observations made by the arresting officer.  Maine law allows the prosecutor in these cases to argue that the defendant refused because they knew they would blow over 0.08.  Still, the State must prove that the Defendant actually operated a motor vehicle, as that element is critical to the case.

So in this case what observations and facts did the state have to work with to prove an OUI?dimiss

  • A motor vehicle of the road.
  • A very intoxicated person claiming that my client was the operator of said motor vehicle.
  • My client refused to provide a chemical sample

This seems kind of light for facts and observations of operational impairment doesn’t it?  On the other hand, here are the facts that the Defense had to work with:

  • No one saw my client operating a motor vehicle.
  • The stranded vehicle was not registered to my client.
  • The officers never conducted standard field sobriety tests (SFSTs) to show impairment.
  • The State never listed the operator of the truck, the same fellow who claimed my guy drove the stranded vehicle, as a witness in their case against my client.
  • No observations of operational impairment by law enforcement
  • No Chemical test was taken.

These facts are very defense friendly, as all the State really had was the fact my client refused.  If you know how to fight these cases, that fact alone is not enough to convict.

Risks for the Client

My client could not afford to be convicted of a 2nd offense refusal, as he would lose his job.  His home state also would have designated him as Habitual Offender.

What happened at Court

This is a good example of where being aggressive and pushing for trial at the right point can be very beneficial.  During discussions with the DA at the dispositional conference, I flat out refused to even discuss the State’s offers and pushed for a trial.  This made the DA take a closer look at the case and forced him to think about how he was going to prove it.  This time the DA that had the case is a no-nonsense kind of DA. After he closely reviewed the police report, I saw my opportunity to talk sense to him.

I asked, “If you don’t have the other guy listed as a witness, how are you going to prove operation?” To which he responded, “we might go and find him.”  I replied, “Well even if you do, keep in mind your witness tested over twice the legal limit.”  (That’s a credibility issue on the State’s witness which is why I think they did not list him as a witness).  I followed up by pointing out again, as it stands the State cannot prove operation because my client denied driving and never changed his story.  I pointed out that the facts show my client is not the registered owner of the vehicle in question and the police screwed up by not contacting the registered owner.  The only other way the State could show impairment was through my client’s performance on the SFSTs.  This evidence was missing because the police never conducted SFSTs.  The only thing the State could prove is that my client refused a test.  That that doesn’t make him OUI.

Result – 2nd Offense OUI Refusal Dismissed

Dismissed by the State at dispositional conference without the need for trial.

For More Information

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Can I give a friend marijuana if I have a medical marijuana card | Nielsen Group Law

As a medical marijuana prescription holder, you are one of Maine’s citizens for whom possessing marijuana is legal and growing a small limited number of marijuana plants for your own use is also legal.  What if you want to be able to give some marijuana to a friend?

The answer to the question (can I give a friend marijuana if I have a medical marijuana card?) depends on whether your friend is also a medical marijuana patient who also has a medical marijuana prescription card.  If your friend is also a medical marijuana prescription holder, then there is nothing to prevent you from giving some marijuana to your friend.  In these exchanges, the only requirement is that you must be giving the marijuana to your friend as a gift, and not “selling” it to them for a price or in exchange for something of value.

Can I give a friend marijuana if I have a medical marijuana card

Can I give a friend marijuana?

On the other hand, if your friend that you are intending to give the marijuana to is not a medical marijuana prescription holder or an officially recognized medical marijuana patient, then you would not legally be permitted to give your friend any of your marijuana.

What are the penalties for Furnishing Marijuana?

“Furnishing” drugs means giving an illegal drug to someone else.  In the case of marijuana, if you gave your friend more than 2.5 ounces of the substance, then this would be considered a criminal act of Furnishing Scheduled Drugs.  Furnishing Marijuana is considered a Class D misdemeanor crime.  If convicted, the maximum penalties would include up to $2,000.00 in fines and up to 364 days jail time.

Our determined legal team is committed to take immediate action to seek a positive case outcome.  If you or someone you know is facing a marijuana charges in Maine, I encourage you to contact The Nielsen Group for your free legal consultation with an experienced criminal defense attorney.  We will take the time to answer your questions and to put your mind at ease as we work with you to determine a defense strategy.

It is well worth your time to check out:

If you would like to call us now at (207) 571-8555, we can begin to develop your case strategy.

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