In Maine, when you are accused of any type of OUI/DUI offense, within two weeks of your arrest, you will receive a notice from the Bureau of Motor Vehicles that your driver’s license will be automatically suspended by the Bureau of Motor Vehicles unless you request a hearing within 10 days of the scheduled suspension. So you have a short amount of time to act in order to stop the license suspension process. You can just take a moment and imagine the inconvenience of not being able to drive. It is important that you take swift precaution to prevent this circumstance from occurring.

Let’s take a moment to examine what a Maine OUI BMV Administrative Hearing is and how it will impact you and what you can do to help set up the situation to maintain your license.

1. What is a BMV Administrative Hearing?
2. How can a Maine OUI Defense Lawyer Help at a BMV Administrative Hearing?
3. How do I request a BMV Administrative Hearing?
4. What happens at the BMV Administrative Hearing?
5. What happens if I lose the BMV Administrative Hearing?
6. What are the benefits of the BMV Administrative Hearing?
7. What happens if I don’t request a BMV Administrative Hearing?
8. What if my license is not a Maine Driver’s License?

What is a BMV Administrative Hearing?

When facing a charge of Criminal OUI in Maine, there are two (2) venues involved, the criminal court and the Bureau of Motor Vehicles (BMV), which is a part of the Maine Secretary of State’s office. The BMV Administrative Hearing is an opportunity to challenge the BMV’s suspension of your driver’s license as a result of the criminal charge for OUI. The BMV Administrative Hearing procedure is separate from the court procedure at the criminal court for the Maine OUI criminal case.

Some may believe mistakenly that since the BMV Administrative Hearing is not part of the criminal court procedure, that somehow it is less important. The fact is that if charged with an OUI in Maine, you have the right to an Administrative Hearing at the BMV. As an OUI criminal defense lawyer who has handled many OUI cases from all across Maine, I believe that the BMV Administrative Hearing is as important to the outcome of your overall case in the criminal court. You should never forego the opportunity for your BMV Administrative Hearing.

If facing an OUI and a suspension of your driver’s license, I encourage you to contact The Nielsen Group for your free legal consultation with an experienced OUI criminal defense lawyer. I will be happy to meet with you to answer your questions and put your mind at ease.

Here are some answers to common questions about BMV Hearings.

How can a Maine OUI Criminal Defense Lawyer Help at a BMV Administrative Hearing?

A BMV Administrative Hearing is completely different from other court procedures. Instead of the procedure at the Unified Criminal Docket or the Maine District and Superior Courts, the BMV uses Administrative law procedure. An experienced OUI Criminal Defense Lawyer will have the legal expertise to approach each proceeding intelligently, as well as the persuasiveness to be effective in both venues.

Here are some areas of attack for your OUI Criminal Defense Lawyer at the BMV Administrative Hearing for OUI in Maine:

• Questioning the Arresting Officer for the Record. Here, we get the arresting officer on the record testifying about what the officer saw or knew about at the arrest, including the following:
  • Questions about the Stop: Was there any video recorded of the stop? Why did the cop respond to the driver? Was it due to an anonymous tip? Did the officer observe any signs of operational impairment before pulling the driver over? Did the officer have the reasonable suspicion that you were violating the Maine OUI law or any other laws in order to make the stop?
  • Questions About Probable Cause: Did the officer have the requisite probable cause to ask you to step out of your vehicle? What did the officer observe in the vehicle? Were there passengers/ witnesses in the car? Did the officer question the available witnesses in the area about the incident?
  • Questions About the Standardized Field Sobriety Tests: Was the officer certified to administer the SFSTs? Was their certification up to date? Are there any lapses in the officer’s certification to administer the SFSTs? Did the officer medically qualify the driver before having the driver do the SFSTs? Did the officer execute the SFST tests properly and in accordance with standardized procedures?
  • Questions About the Intoxilyzer: Was there any video recorded in the Intoxilyzer room? Was the officer certified to administer the Intoxilyzer alcohol breath test? Was their certification up to date? Are there any lapses in the officer’s certification? In the Intoxilyzer room, did the officer observe the mandatory waiting period before collecting a breath sample? Were there any problems in obtaining a breath sample? Did the machine register any error messages during the testing period? Did the driver burp, belch, chew tobacco or chew gum prior to the wait period? Did the officer ask the driver if they had any dental work or oral surgery in the weeks leading up to the stop? Did the officer check for see if the suspect was a proper candidate to take the breath test?
  • Questions About the Drug Recognition Exam (DRE): Was the officer certified to administer the Drug Recognition Exam (DRE)?   Was their certification up to date? Are there any lapses in the officer’s certification? Did the offer follow the correct procedures for conducting the Drug Recognition Examination?
  • Questions About a blood draw: If there was a blood draw, were proper procedures followed? Was the sample preserved properly? Were proper procedures followed when the blood was tested? Was the proper preservative used for the blood sample? Was the sample contaminated by fermentation?

The above questioning is similar to the types of questions I would ask at trial. In answering questions at the BMV Administrative Hearing, the officer commits to making statements under oath about what they did or did not do during the course of the Maine OUI Investigation. Later, these prior statements can be used for a more effective and targeted questioning at future court proceedings.

How do I Request a BMV Administrative Hearing?

Usually by fourteen (14) days after your arrest for OUI in Maine, you will receive a letter in the mail from the Maine Secretary of State indicating that your driver’s license is about to go under suspension. In this Notice, you are informed that you have a short window of opportunity to request a BMV Administrative Hearing to challenge the administrative suspension of your driver’s license. At this time, your OUI Criminal Defense Lawyer can enter an appearance with the BMV and request the BMV Administrative Hearing on your behalf. In addition to requesting a BMV Administrative Hearing on the client’s behalf, I also like to request a copy of the discovery materials from the BMV, including the police reports, any probable cause statements, results from the breathalyzer, etc. Reviewing this information ahead of the BMV Administrative Hearing is essential in developing questions for the arresting officer.

As a result of the BMV Administrative Hearing request, the BMV would place a stay (postponement) on the effective date of your license suspension until after the BMV Administrative Hearing has been held. Clients have found this stay vital in having the extra time to live, work, and make arrangements for having a suspended driver’s license. In many instances, making such arrangements are necessary, since the suspension period for a First Offense OUI in Maine starts at 150 days, and the suspension periods get longer with each subsequent OUI offense.

What if I did not receive the Suspension Notice from the BMV?

If your address on your driver’s license is not up to date, there is a risk that you might miss this Notice from the BMV. Occasionally, I encounter people who feel that the BMV should be obligated to notify them at their correct address, even if their address on their driver’s license has not been updated. According to Maine laws, the BMV only has to send the suspension notice to the last known address on their records. This means that regardless of whether you receive this notice in the mail, if the BMV sends out the suspension notice, the BMV will suspend your driver’s license. Therefore you should maintain your up to date address with the BMV so that you will receive this notice.

What happens at a BMV Administrative Hearing?

At the BMV Hearing, the parties include the arresting law enforcement officer (or all relevant officers if more than one was involved), criminal defense counsel, and the Hearings Examiner. The defendant does not have to appear in person if represented by a criminal defense lawyer. If the defendant does appear at the BMV Administrative Hearing, the defendant could be subject to examination by the Hearings Examiner. In order to keep the focus of the questioning on the arresting officer, I prefer to attend the BMV Administrative Hearing on clients’ behalf.

For example, the questions at issue at the BMV Hearing in an alcohol related OUI are:

1. There was probable cause to believe that you were operating a motor vehicle with an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath.
2. You operated a motor vehicle with an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath.

On the date of the BMV Administrative Hearing, if the defendant’s side fails to appear, then their license would go under suspension. If the arresting officer fails to appear, then the defendant’s license would not be suspended.

If all parties are in attendance and on time, the Hearings Examiner starts the hearing. The arresting officer presents the State’s case, usually the police report. After presenting the State’s case, the arresting office can be questioned by defense counsel. This is my opportunity to ask the officer questions to develop the record for later court proceedings. Then the defense presents its case, similar to a trial. If the defendant is present at the BMV Administrative Hearing, the defendant would answer questions from the Hearings Examiner. After the hearing, the Hearings Examiner issues a decision whether or not to suspend the defendant’s driver’s license administratively.

After the BMV Administrative Hearing, I make sure to request a recording of the hearing so that it can be transcribed, thus becoming a part of the overall record of the case. This record from the BMV Administrative Hearing can be fundamental to the outcome of the criminal case. Here is an example where the testimony of the arresting officer resulted in an acquittal of OUI at trial {LINK to FUSCHINO}.

What happens if I lose the BMV Administrative Hearing?

As mentioned above, BMV Administrative Hearings are Administrative Law proceedings. Instead of the familiar “beyond a reasonable doubt” criminal standard of evidence at the criminal court, the burden of proof the State must meet at the BMV Administrative Hearing is much less stringent, and referred to as a “preponderance” standard. In the “preponderance” standard, if chances are more likely than not that you operated your motor vehicle while under the influence of intoxicants, then the State has met its burden. The BMV issued you your driver’s license as a privilege, and they have the ability to suspend that privilege if you broke the rules of the road. As a result of the less stringent standard, often the State prevails at the BMV Administrative Hearing, and your license goes under suspension.

Even if you lose the BMV Administrative Hearing, this by no means a “defeat.” Your guilt or innocence of drunk driving is decided at the criminal court. And the testimony that was obtained from the arresting officer at the BMV Administrative Hearing can play a significant role at trial. In some instances, the testimony of the arresting officer at the BMV Administrative Hearing can result in your acquittal at trial as shown above.

What are the Benefits of a BMV Administrative Hearing?

There are many benefits of a BMV Administrative Hearing including:

• Your OUI Criminal Defense Lawyer can question the arresting police officer about the OUI stop. The officer’s ultimate answers to these questions can be used later in the case to bolster your defense.
• In the event that the arresting officer does not appear at the BMV Administrative Hearing, then the hearing would default in your favor and your license would not go under suspension.

What will happen if I don’t request a BMV Administrative Hearing?

You would be doing yourself a great disservice if you chose to skip the BMV Administrative Hearing. Here are just some of the negative things that can occur if you forego the BMV Administrative Hearing, or miss the window of opportunity to request a BMV Administrative Hearing:

• You would not be provided a stay of your license suspension. Instead, your license would simply go under suspension on the suspension effective date without having put up a fight.
• Your criminal defense lawyer would not be able to question the arresting officer until much later in the case. Without the benefit of a recorded prior statement from the arresting officer, there would be no “prior testimony” with which to measure the officer’s testimony at trial.
• Administrative suspensions from the BMV can be counted as a prerequisite for “prior offenses” in potential future OUI matters against you. This means that if you are charged with OUI in the future, this charge could be considered as having “prior offenses” due to your prior administrative license suspension. When an OUI charge is considered to have “prior offenses,” the mandatory minimum penalties by statute are much stiffer.
• All BMV Administrative suspensions go on your driving record. Even if you are found Not Guilty of the OUI charge at the criminal court, these administrative suspensions of your driver’s license would be counted towards the total number of violations applicable towards a potential Habitual Offender status or OUI priors.

In sum, I see no valid reason to skip the BMV Administrative Hearing.

What if my driver’s license is from outside of Maine?

Even if your driver’s license is from a different state, if you are charged with OUI in Maine, then you still get the opportunity for a BMV Administrative Hearing in Maine. However, there is one significant difference: the Maine BMV can only suspend the driving privileges in Maine of an out-of-state license holder. The Maine BMV cannot suspend your driver’s license if it is from a different state. Your home state could suspend your driver’s license in the event it receives notice of the administrative suspension from Maine or in the event of notice of conviction for the OUI charge in Maine.

Contact a Maine OUI Defense Attorney

If you have more questions, feel free to contact an experienced Maine OUI Defense Attorney.

If you found this article helpful, here are some additional articles you might find helpful also:

• Questions to Ask When Hiring an OUI Lawyer
• 10 Mistakes People Make During a DUI Stop
• Maine First OUI Offense
• Drunk Driving Involving Drugs
• New Drunk Driving Law Takes Effect December 2013
• Questions to Ask your OUI Defense Lawyer
• Court Process for OUI Laws
• What Are the Maine OUI Laws?
• Standardized Field Sobriety Tests in Maine