Know the Law, know the procedure, know how to win at the BMV.

Winning cases is my pride and joy.  Fighting OUI charges is simply a passion of mine.  OUI charges in Maine are resolved in two steps:

Step 1:  The Criminal Case at Court

Step 2:  The Administrative Hearing

I make sure any prospective client facing an OUI charge understands they are facing two cases instead of one.  The first case is the one we all know about with the Criminal court.  The other case is the Maine Bureau of Motor Vehicles (BMV), and is just as important.  The state of Maine can administratively suspend your driver’s license based just on the allegation that you operated a motor vehicle under the influence of intoxicants.  This happens when the arresting officer delivers a copy of his police report and chemical test results to the BMV.  After receipt, BMV sends a notice to you that your license is going to be administratively suspended.  If you request it on time, you are afforded an administrative hearing to decide whether the administrative suspension goes into effect. 

The Administrative Hearing at the BMV is governed by administrative law, not criminal law. This difference boils down to is that the issues are narrower, and the burden of proof necessary to meet them is significantly lower than the Criminal Court’s requirements.  The criminal law standard of “beyond a reasonable doubt” is familiar to everyone.  In administrative hearings, the standard of evidence applied is much lower than the “beyond a reasonable doubt” standard.  Instead, the standard of evidence at the administrative hearing is referred to as the “preponderance standard.”  The State needs to prove that it is “more likely than not” that that certain issues were met.  The issues that must be decided at the administrative hearing depend on the type of OUI Charge you are facing, such as whether the intoxicant is alcohol, whether the intoxicant is a drug, or whether it is a refusal.  The vast majority of cases at the BMV involve a person who was under the influence of alcohol and did not refuse a breath test.  In these cases, BMV is concerned with the following issues:

• Whether there is probable cause to believe that a person was operating a motor vehicle with a BAC of 0.08 of higher and
• Whether you operated a motor vehicle with a BAC of 0.08 or higher.

Under the preponderance of the evidence standard, these issues are often easily satisfied by the arresting officer testifying to their police report alleging the OUI and the breath test submitted to the BMV.  

Due to the “preponderance standard”, the BMV hearing is very easy for the State to win.  A BMV hearing is beneficial to have from a legal strategy perspective.  As I have discussed before, to a skilled OUI defense attorney, these hearings are invaluable to laying the foundation of your defense in the criminal court.  Frankly, I don’t care how bad the case looks.  I always fight these suspensions on behalf my clients.  Notwithstanding how easy it is for the State to win at the BMV, on occasion I win because I know the Law and I know the procedure, which means I know how to win on the merits at the BMV. 

Here is an example of a BMV Hearing in which my client won on the merits. 

Facts of the Case

At first glance, this case was going to be a difficult fight.  The facts were:

• My client was stopped because a concerned motorist called the local PD to report on my client’s erratic operation
• This concerned motorist followed my client, giving a play-by-play of their impaired driving to the police 
• On video, the client clearly looked impaired.
• The officer painstakingly took the time to detail in their report each and every instance of conduct that indicated impairment
• On video, my client’s performance on the SFST’s was one of the worst I’ve seen
• The breath test produced a result that was well over three times the legal limit of 0.08

The Problem with the State’s Case

Yet, as bad as this case looked, I thoroughly reviewed the video and the police report to find any issues for the defense that would weaken what looked like a very strong case for the state, and I found one.  The issue I found was how the Officer conducted the breath test, and it was one that required a detailed knowledge of breath testing procedure. 

The breath testing device in this case was the Intoxylizer 8000.  This device requires at least two breath samples, with a test result being within 0.02 of each other.  The proper testing procedure also requires the officer to observe the testing subject for a period of at least 15 minutes prior to the subject giving the first breath sample, through the provision of the last breath sample.

In this case, both issues came into play.  My client had to provide a total of three breath samples, because the first two sample results were not with in 0.02 of each other.  Had the test results been within 0.02 of each other, we would have lost the hearing.  However, the Intoxylizer 8000  needed a third sample, and according to the police report, the officer indicated some facts suggesting that during the time between the provision of the second and third breath samples, my client may have been left alone, unobserved by anybody.   If this was indeed the case, that is a problem for the State.

What happened at the BMV Hearing?

During the administrative hearing, the arresting officer testified to all his observations regarding my client, and how the breath test result was over three times the legal limit.  The hearings examiner thought the evidence was strong for the State.   I expertly cross examined the officer on the issues I had discovered.   As it turns out, when questioned on cross, the officer did admit that during the testing procedure, between providing the second and third breath samples, my client was indeed left alone and unobserved.

This fact was the critical issue.  The testing procedure mandates that the test subject be observed through the completion of the test.  The reasons for this observation assures that nothing occurs which would call into question the test results.  Once my client was left unobserved, what should have happened at that point was the officer should have restarted the testing procedure and observed my client for another 15 minutes before providing two new breath samples for the new test.  That did not happen.   Since this did happen, the hearings examiner ruled that the breath test was invalid.  Since the test was invalid, the State could not show that my client did operate their motor vehicle at a BAC of 0.08 or higher and the administrative suspension was rescinded.