You are driving home after a night out with friends. On the way out of town, you notice the traffic in front of you slowing down, and then come to a single lane moving at a snail’s pace. “Has there been an accident up ahead?” you might be wondering, but then you see a sign that reads “Roadblock Ahead” and see several police cars and orange cones blocking the road. You are about to encounter an OUI sobriety checkpoint.

An “OUI Checkpoint” or “OUI Roadblock” in Maine is when law enforcement sets up a barrier in the road so that they can stop every single car in order to have contact with every single driver for a period of time in order to find who might be driving drunk or committing other traffic violations. Many clients do not like the idea of an OUI sobriety checkpoint. They feel that a roadblock that stops everyone is unfair because it casts too wide law enforcement’s “dragnet.” At worst, some people might feel that using roadblocks to find drunk drivers is a form of “lazy police work.” Granted, most people would prefer to be judged on how they are operating their motor vehicle rather than to be stopped without any reasonable articulable suspicion (RAS) that they are committing criminal conduct. Reasonable articulable suspicion is “more than a hunch” that you might have violated the law. At an OUI sobriety checkpoint, law enforcement does not need to have any reasonable articulable suspicion (RAS) to stop your vehicle.

OUI sobriety checkpoints in Maine are considered by the Courts to be a lawful and legal use of law enforcement power. The State deems drunk driving to pose a high level of risk to public safety. As a result of the severity of the risk drunk drivers can pose to the general public, the Courts have found that that the “suspicionless” intrusion into an individual’s rights at a sobriety checkpoint is legitimate.

Anything that police find in a roadblock is fair game, from expired inspection and registration sticker violations to criminal Operating while Under the Influence (OUI). If you or someone you know is facing a charge of OUI in Maine, I encourage you to contact The Nielsen Group for your free and confidential legal consultation with an experienced OUI defense attorney. I am always happy to meet to answer your questions and put your mind at ease.

Below is a story of a fictional client to illustrate how an OUI sobriety checkpoint can result in an OUI charge.

Story of an OUI from an OUI Sobriety Checkpoint

Harry is vacationing in Maine from out of State. Harry already has one OUI on his record from his home State five years ago. Harry decides to drive to Maine for a long weekend enjoying the summer nightlife in Old Orchard Beach. Harry’s Motel was just over the town border in Saco. Harry enjoys himself at the beach until closing time, having had several drinks during the night. In order to avoid getting caught a second time for OUI, Harry heads out of town “the back way.” However, on his way out of town, he encounters an OUI checkpoint set up by the Old Orchard Beach Police Department.

A female officer knocks on his window. Harry obligingly rolls down his car window. The officer appears taken aback by the odor coming from inside Harry’s car as he handed over his license and registration. “So, how many drinks have you had this evening?” she asks. Harry timidly admits to having had three beers. The officer requests he to pull over from the OUI checkpoint to the side of the road. The officer follows him while another officer takes her place at the checkpoint.

Harry is asked to step outside the vehicle for some standardized field sobriety tests. Harry mentions to the officer that he had broken his toe as of late, and says that he “can’t be running all over the place.” Instead the officer pulls out her pen and asks Harry to follow it with his eyes without moving his head. “Sure, I can do that” Harry says. After putting her pen down, the officer asks Harry to repeat the alphabet from G through T and then to count backwards from 88 to 64. When he is done the officer tells Harry that he is under arrest for OUI, and she put him in a police cruiser to be brought to the station for an alcohol breath test, where Harry blew a 0.10. To himself, Harry thought “here we go again.”

Statute for Second Offense OUI

Regardless of whether the police officer’s investigation for OUI arose from observing operational impairment, or from contact with the driver at an OUI sobriety checkpoint, the statutory elements of a Second Offense OUI remain the same:

• Operating a motor vehicle while;
  • Under the influence of intoxicants; or
  • Having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 201 liters of breath.

In Harry’s case, he was behind the wheel when the officer had contact with him, and so he was definitely operating his motor vehicle. Harry admitted to having had “three beers,” and so he admits to having consumed “intoxicants” in the form of alcohol. And, Harry’s blood alcohol was measured at 0.10, which is above the legal limit. And, since he has a prior OUI from his home State, the Maine District Attorney is likely to count this charge as Harry’s Second Offense.

If convicted as charged for this Class D misdemeanor, Harry could face the following mandatory minimum penalties:

• $700.00 fine (plus fees and surcharges)
• 7 days mandatory jail time
• 3 years court-ordered loss of driver’s license

Mandatory minimum penalties are the least severe penalties allowable by law in the event of a conviction. But, the maximum penalties for a Class D misdemeanor include up to $2,000.00 in fines and up to 364 days jail time.

Maine Bureau of Motor Vehicles and an Out of State License

In any Maine OUI case, the Maine Bureau of Motor Vehicles (BMV) is involved as well as the criminal court. In this case, Harry’s driver’s license was issued by a State other than Maine. Here are some of the things that Harry can expect in his Maine OUI case:

• Because Harry’s driver’s license was issued by his home State and not Maine, the Maine BMV can only suspend his right to operate a motor vehicle in Maine.
  • As a result, while Harry would be suspended from driving in Maine, he would not be suspended from driving anywhere else as long as his home State does not suspend his license.
  • If Harry’s home State receives notice of the administrative license suspension from Maine, or from a criminal OUI conviction from the Courts, then Harry’s home State could also take action against Harry’s driver’s license. IWhen this happens, Harry would be notified by his home State’s Department of Motor Vehicles.
• Even though Harry’s license is from a different State, Harry still has the right to a BMV Administrative Hearing to challenge the suspension. Harry’s Maine OUI defense attorney can do this on Harry’s behalf to assure that a Hearing is requested on time, and to represent Harry at the Administrative Hearing itself.
• Harry will be required to complete the following Maine BMV’s license reinstatement conditions:
  • Become DEEP (Driver Education and Evaluation Program) Complaint
    • While DEEP is required in Maine, other States might offer similar programs so that Harry could complete this requirement closer to home
    • Regardless of where Harry takes his drunk driving prevention course, he is required to register with the Maine DEEP office and pay their registration fee , which typically is $300.00.
• Pay $50.00 reinstatement fee to the Maine BMV

Regardless whether my client’s driver’s license is from Maine or another State, I always recommend that they complete their reinstatement requirements as soon as possible so as to not delay getting their driving privileges back when the time comes.

How an OUI Criminal Defense Attorney Can Help

Just because the police were not required to have reasonable articulable suspicion to pull Harry over at the OUI sobriety checkpoint does not mean that the police are not required to perform a solid OUI investigation. In this way, an OUI defense attorney would fight the OUI charge in the same way as if Harry had been stopped in a typical OUI situation.

Since Harry is facing a Second Offense, he wants to avoid the conviction at all costs. An OUI criminal defense attorney knows the law and can persuade the District Attorney to negotiate for the best possible outcome. And, an OUI criminal defense attorney can help you to understand your case and your legal defense better. The following includes some areas where your OUI criminal defense attorney should focus:

• Problems with the SFSTs – Was the officer trained properly to execute the standardized field sobriety tests? Did the officer execute the tests in accordance with standardized procedures? Did the officer fail to ask about any potential health problems that would affect your performance on the SFSTs?
• Problems with the Intoxilyzer Machine – Is the officer certified to use the Intoxilyzer? At the time of the arrest, was the Intoxilyzer machine calibrated properly? Did the officer observe the proper wait period before breath testing? Did the machine read any error messages during testing?
• Preserving Any Video Evidence from the Intoxilyzer room – In an OUI where the stop was made at an OUI sobriety checkpoint, the video evidence would likely be from the Intoxilyzer room at the police station. The single best piece of evidence in an OUI case, whether for the State or the defense, is video evidence.
• Contemplating Employing Expert Witnesses at Trial – Recall in Harry’s case that his Intoxilyzer measurement was 0.10 when the legal limit is 0.08. This is within 0.02, and within a reasonable margin of error for the alcohol breath test machine. Here, Harry might want to consider hiring an Intoxilyzer expert to challenge the breath test machine and results. An expert’s review is a critical look at the State’s evidence.
• Contemplating Alcohol or Substance Abuse Treatment – One means of achieving a better negotiating position with the District Attorney is to meet some of their demands before they ask for them by investing early in alcohol or substance abuse treatment.

Possible Outcomes for a Second Offense OUI from a Sobriety Checkpoint

Here are some possible outcomes for Harry in his case:

Favorable Plea Deal- With the assistance of an OUI defense attorney, Harry could gain the opportunity of a favorable plea arrangement with the District Attorney, one that ideally would avoid a second offense OUI conviction. Some alternative pleas to OUI that can be negotiated can include a count for Driving to Endanger (DTE). Even better would be a plea to a charge Reckless Conduct, a charge which does not contemplate operating a motor vehicle.

Note: Before pleading guilty to any charge, you want to be absolutely certain that you understand what pleading guilty for that charge will mean for you. Therefore, I always recommend to never plead guilty unless under the informed advice of legal counsel.

Deferred Disposition– In a deferred disposition, the State accepts a guilty plea from the Defendant, and then contemplates sentencing at a later date. In the time before sentencing, the Defendant is mandated to complete a number of requirements. In the case of an OUI, the State might want the Defendant to have no use or possession of alcohol and undergo a substance abuse evaluation, with follow-through for any recommended counseling. Often when counseling is required, proof of counseling attendance is required to be provided to the District Attorney’s office periodically to assure compliance.

At the end of the “deferment” period, the defendant comes back to court. If the defendant has been successful in going to counseling and staying away from alcohol, then the defendant would get the “upside” of the deferment, usually in the form of a lesser conviction or a dismissal.

Jury Verdict– If the circumstances of your case are appropriate, your OUI criminal defense attorney might advise to take your case to a jury trial. A jury trial is your day in court. If the jury finds reasonable doubt that you had committed the crime as charged, then the jury would acquit you. On the other hand, if the jury agrees with the District Attorney that you committed the crime “beyond a reasonable doubt,” then you would be found guilty.

In the event of a conviction for OUI with a driver’s license from outside Maine, the criminal conviction would go on your record, where the information would be accessible to your home State. Based on this conviction, your driver’s license will be impacted.

Court Procedure for Second Offense OUI from a Sobriety Checkpoint

Here is the court procedure for a Second Offense OUI charge that arose from an OUI Sobriety Checkpoint in the York District and Superior Courts.

Arraignment

A Second Offense OUI charge is a misdemeanor. Therefore, Harry’s first court date is an Arraignment at the Biddeford District Court. This is because all criminal cases arising out of the town where Harry was stopped are heard at the Eastern York County District Court. York County has two other District Courts, including the Southern York County District Court in York, as well as the Western York County District Court in Springvale.

Because Harry retained an OUI criminal defense attorney, he does not have to attend his Arraignment in person. His attorney instead took care of entering his Not Guilty plea through the mail.

Bench Trial or Jury Trial Request

When a criminal case starts out at the District Court, there is an opportunity to have either a Bench Trial in front of a Judge, or to request a Jury Trial at the Superior Court. If Harry wants the opportunity for a jury trial, one will need to be requested within 21-days of the Arraignment. In my practice, I generally like to transfer OUI matters to the Superior Court so as to preserve my client’s right to a jury trial. Even if the client does not go through with a jury trial, preserving my clients’ constitutional rights is what is important.

Dispositional Conference

The first court date at the Superior Court would be a Dispositional Conference. A Dispositional Conference is where the attorneys negotiate a potential resolution to the case without going to trial. Harry would have to return to Maine in order to attend his Dispositional Conference. If no resolution is reached that Harry feels comfortable with, then the case would progress towards pretrial motions and jury trial.

Pretrial Motions

Pretrial Motions are any legal motions submitted during the window of time after Arraignment bringing up specific issues, usually pertaining to what evidence would be allowed at trial. The most common pretrial motion that I would file is a Motion to Suppress, which asks that any evidence obtained in violation of my client’s constitutional rights be excluded from evidence at trial. A Suppression Hearing would be held where both attorneys argue for their side of the argument. The Judge makes the final determination what evidence gets included or kicked out at trial.

Jury Selection and Jury Trial

At the Jury Selection date, a jury of 12 plus a few alternates is selected to hear the case. After a jury is selected, a trial date is set. A trial is the defendant’s “day in court” to determine whether the defendant is guilty or not guilty.   When the jury makes their determination of guilty or not guilty, that is the end of the legal case.

For More Information

If you liked this article, you might also find the following articles helpful:

• 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