When you “refuse” something, you don’t want it; you will not take it. A “refusal” Operating Under the Influence (OUI) charge in Maine means you didn’t submit to a chemical or alcohol breath test when law enforcement asked for e a breath sample. There are a number of reasons why someone might refuse to give a breath sample. Just some of the reasons that I have heard over the years for OUI Refusal include:
- “I didn’t know you had to take the breath test.”
- “I don’t trust that machine. It’s never right.” (referring to the Intoxilyzer)
- “I didn’t trust that police officer as far as I could throw him.”
- “If I give them a breath sample they will know how much I have had to drink.”
- “If I don’t give a sample then maybe I won’t be charged with drunk driving.”
- “I wasn’t impaired, and so I didn’t feel they should test me.”
There might be several reasons why people might refuse to take the alcohol breath test. When charged with an OUI Refusal, the state imposes significant consequences. For instance, there are automatically higher mandatory minimum penalties, such as higher fines and longer jail time. There are also significantly longer administrative license suspensions for a Refusal than for a simple OUI in which the person had given a chemical or breath sample.
A Quick Reference to OUI Refusal charges
Let’s take a moment to review what you can anticipate when facing a Maine OUI refusal. To help your defense, you can:
- What is the Maine Law for OUI Refusal?
- What are the impacts to my Maine driver’s license?
- How can an OUI defense lawyer help an accusation of Maine OUI Refusal?
- What are the possible outcomes in a Maine OUI Refusal case?
- What is the Court Process for a a Maine OUI Refusal offense?
When facing an OUI Refusal, you do not want to go to Court alone. You need an aggressive advocate well-versed in technical as well as legal arguments in your corner to reach the best possible outcome. I encourage you to contact The Nielsen Group for your free legal consultation with an experienced OUI criminal defense attorney. We are waiting to hear from you to help you fight the OUI Refusal charges
Below is a fictional story about how a person can end up with an OUI Refusal charge in Maine.
Story of OUI Refusal in Maine
Emmett is an insurance adjuster, and so he drives his car everywhere to examine all the different claims. It has been several years since Emmett’s first OUI conviction. Emmet disliked the whole OUI experience his first time around. Even though he was able to install an IID after 30 days, he really “felt” the 30 days loss of work right in his wallet. Determined not to have another similar experience, Emmett focuses as best as he can to not drink and drive.
On his way back from a long day at rural job site, he stops off at a bar for “happy hour.” Emmett enjoyed his cocktails at happy hour and he lost track of time. As evening became night, Emmett needed to head home. Driving out of the rural area in Maine, there were no street lights and forest on both sides for miles. Suddenly a deer jumps out in front of him. Emmett swerves to avoid hitting the deer. Unfortunately, he also ended up skidding out and landing in a ditch on the side of the road.
Luckily for Emmett, the car accident left him without any injuries and with cell phone coverage. Emmett called for help to get out of the ditch. The county sheriff’s deputy arrived at the accident seen first and checked to assure Emmett’s well-being. Emmett had flagged down the deputy’s car.
Emmett’s interaction with the Deputy
While interacting with Emmett, the Deputy noticed some of the classic “clues” for alcohol consumption, such as bloodshot eyes and the smell of alcohol from his breath. The Deputy shared concern about Emmett’s impairment. Emmett disputed the concern indicating it was the deer’s fault. From his perspective, Emmett explains how the deer surprised him while driving. The Sheriff requested him to complete the standardized field sobriety tests.
After the standard field sobriety tests (SFSTs), the Deputy places Emmett under arrest for suspected OUI. Emmett is furious. “I called you for help, and this is what I get?” The Deputy proceeds with Emmett to the County Jail. In the room with the Intoxilyzer, Emmett declares “There’s no way I’m blowing into that Atari 2600! The Deputy proceeds to read the required implied consent form to Emmett. Despite Emmett’s the attempt to lighten the situation with humor, the Deputy files criminal charges against Emmett. More than an OUI, the state accuses Emmett of a Second Offense OUI Refusal.
Maine Statute for OUI Refusal
OUI Refusal in Maine comprises two sections of the law, the OUI Statute and the Implied Consent Law.
Implied Consent Law
Maine State 29-A M.R.S.A. Section 2521 within the Motor Vehicles statute contains the “Implied Consent Law.” Implied consent to chemical tests includes:
- Mandatory submission to test. If there is probable cause to believe a person has operated a motor vehicle while under the influence of intoxicants, that person shall submit to and complete a test to determine an alcohol level and the presence of a drug or drug metabolite by analysis of blood, breath, or urine.
- Type of test. A law enforcement officer shall administer a breath test unless, in that officer’s determination, a breath test is unreasonable. When circumstances exist causing a breath test to be unreasonable, the officer administers another chemical test in place of a breath test. For a blood test the operator may choose a physician, if reasonably available.
In this case, because of the probable signs of impairment observed by the sheriff, there was the probable cause to believe that Emmett had driven while drunk. As a result, Emmett was obligated by the Implied Consent law to participate in a chemical test to determine his blood alcohol level. The fact that Emmett refused to give the breath sample meant that he violated the Implied Consent Law. The state charged Emmett with a Refusal as the end result of the violated Implied Consent Law.
In the event that Emmett had exhibited breathing problems or other circumstances that would have made giving a breath test “unreasonable,” then the ball is in the officer’s court to take an alternative test, such as a blood sample.
When Emmett refused to take the Intoxilyzer, then the deputy was obligated to warn him of any potential consequences he might face as a result of refusing to take the test. Informing the defendant of this warning is also an essential part of Informed Consent.
RECENT MAINE OUI REFUSAL CASE VICTORIES | ||
Smart Strategy & Aggressive Defense brings about results and victories | ||
THE CHARGE |
FACED
|
THE OUTCOME
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2nd Offense OUI Refusal | $900 Fine, 12 days jail and 3 years plus consecutive administrative suspension time for the refusal suspension | Case Dismissed |
The FACTS – A second OUI allegation with an OUI refusal. | ||
We offer smart, effective defense strategies |
Criminal OUI Elements
To review, the statue for Maine OUI is 29-A M.R.S.A. Section 2411. In order for the State to win a conviction on the OUI charge, they need to show beyond a reasonable doubt that you operated a car or other motor vehicle:
- While under the influence of intoxicants; or
- While having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath
A first or 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 Maine OUI Refusal Offense
Number
|
Fines
|
Jail
|
License Suspension
|
---|---|---|---|
1st Offense | $500.00 fine – $600.00 with Refusal | 48 hours only with aggravating factors – 96 hours mandatory with Refusal | 150 days – Add consecutive administrative suspension time for refusal suspension |
2nd Offense | $700.00 fine – $900.00 with Refusal | 7 days jail – 12 days jail with Refusal | 3 years – Add consecutive administrative suspension time for refusal suspension |
3rd Offense | $1,100.00 fine – $1,400.00 with Refusal | 30 days jail – 40 days jail with Refusal | 6 years – Add consecutive administrative suspension time for refusal suspension |
What about my driver’s license in a refusal?
In a typical OUI case where there is not a refusal, a Bureau of Motor Vehicles (BMV) Hearing request will stay (postpone) the administrative license suspension until the BMV Administrative Hearing date. In the case of an OUI Refusal, requesting a BMV Administrative Hearing will not trigger the stay of your license suspension. Instead, your license goes under suspension on the date scheduled by the BMV.
The administrative suspension imposed by the BMV for an OUI Refusal results in a significant impact on your ability to drive. Listed below, you can see the periods of suspension:
- First Refusal- 275 days license suspension
- Second Refusal- 18 months license suspension
- Third Refusal- 4 years license suspension
What makes these time frames so devastating for most clients is the fact that they must be consecutive to any court-imposed suspension. Running consecutively means that one suspension runs first, and then the other. In Emmett’s case where he is facing a Second Offense OUI but a First Refusal, he would face a 175 days license suspension in connection with his first refusal, and then he would face an additional three (3) year license suspension in connectionwith the OUI.
The only way that you could beat the BMV imposed license suspension in a Refusal is to win at the BMV Administrative Hearing. For more information about the BMV Administrative Hearings, please read my dedicated article. Generally, while it is not impossible, it is a significant challenge to win as a defendant at a BMV Administrative Hearing.
How an OUI Criminal Defense Attorney Can Help
Typically, the State does not like defendants who do not comply with the alcohol breath test, as it often denies them their most reliable evidence of impairment. But just like in any other OUI case, there are many ways in which an OUI criminal defense attorney can help:
- Problems with Informed Consent– Did the defendant really “refuse” to take the test. What if the Deputy failed to read the implied consent form, misread it or just gave a much abbreviated version of it? If Emmett was not properly apprised of Maine’s Implied Consent law and the consequences for refusing, then technically he did not “refuse.” The state is obligated to inform him of the consequences in refusing.
- Problems with the Stop- Did the Sheriff have the requisite reasonable articulable suspicion to make the stop? Did the Sheriff have the requisite probable cause to arrest Emmett to take an alcohol breath test?
- Problems with the SFSTs– Was the Sheriff trained properly to execute the standardized field sobriety tests? Did the Sheriff execute the tests in accordance with standardized procedures? Did the Sheriff fail to ask about any potential health problems affecting performance on the SFSTs?
- Preserving Any Video Evidence from the Police Cruiser/ Intoxilyzer room– The single best piece of evidence in any OUI case, whether for the State or the defense, is the video from the police cruiser documenting the stop, or from the Intoxilyzer room at the police station or county jail.
Outcomes for OUI Refusal
Here are some possible outcomes in an OUI Refusal case with the assistance of an OUI criminal defense attorney:
Deferred disposition– In a deferred disposition, Emmett would plead guilty as charged. Next, the sentencing would be set aside for a period of time pending his good behavior. During his good behavior, Emmett would be required to meet a number of conditions to the District Attorney’s satisfaction. Based on how well Emmett achieves the conditions;
- If successful, then he gets the benefit of the agreement, such as perhaps getting a reduced charge or a dismissal.
- If not successful, then he would be sentenced for the charge he pled to.
Favorable Plea deal– A good defense attorney can work out a favorable plea arrangement with the District Attorney, one that minimizes the risks for the defendant. Consider an example with Emmett where the District Attorney drops the “Refusal” language from the charge. Perhaps Emmett could enter a plea for a second “First Offense” OUI. This plea would reduce his likely license suspension time and get him back to work as soon as possible.
If defense counsel requested and had a hearing on the administrative suspension, skilled counsel could lay the basis for the defense strategy. Defense counsel could create a record showing the possible weaknesses in the States case. Often this has the cumulative effect in favor of the Defendant resulting in even more favorable offers such as a drop down from a 2nd offense OUI to a Driving to Endanger (DTE ) or a reckless conduct charge or as stated above a deferred disposition
Jury Verdict – If the criminal defense attorney believes that Emmett has a good case to put in front of a jury, or if the District Attorney has a policy of “no negotiating” OUI cases, then the outcome can be by a verdict at Trial. A verdict would be Guilty or Not Guilty.
Court Procedure for OUI Refusal
The Unified Criminal Docket procedure listed below highlights the court procedure used throughout Maine for a Second Offense OUI with a Refusal.
Arraignment
Your first date is an Arraignment where you can enter a plea of Not Guilty. At the arraignment, your lawyer can obtain a copy of the discovery materials. The arraignment provides an opportunity to discuss any issues pertaining to bail.
Dispositional Conference
The Dispositional Conference is where the attorneys negotiate a potential resolution to the case outside of trial. The defendant must be in attendance at the Dispositional Conference for reviewing any offers from the State and approving any offers that are deemed acceptable. If no resolution is reached at the Dispositional Conference, then the case would progress to the next step, pretrial motions
Motion Hearing and Docket Call
‘Pretrial motion hearings include any potential Hearings on Motions to Suppress. Motions to Suppress request that any evidence obtained in violation of the defendant’s constitutional rights to be suppressed from evidence at trial, among others. If a second negotiating day is necessary, then a Docket Call would be held as a “last chance” to come to a resolution outside of trial.
Trial
Heading to trial, a jury must be selected first. At jury selection, the Court can ask potential jurors questions in advance of selecting the jury, and then a trial date is set. At trial, there is a full “Day at Court” complete with testifying witnesses, cross-examination, and statements from the attorneys. Ultimately, the jury determines whether or not you are guilty or not guilty.
For more information
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