Maine OUI Third Offense

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If you have been accused of a Maine OUI Third Offense, there is a lot a stake.  There are impacts to your wallet, your license, and maybe even jail time.   A Maine OUI Third Offense within 10 years is a felony offense that carries a maximum penalty of five (5) years in prison, $5,000 fine and two-year probation.   In addition, a Maine OUI Third Offense also has a mandatory minimum penalty if convicted.  If you are facing a Maine OUI Third Offense you likely have some questions and are looking to see if it is possible to avoid a felony conviction.

Just to share with you my expertise.    I have handled and achieved successful resolutions to many Operating Under the Influence cases all across Maine.  Being charged with Maine OUI Third Offense, you are looking at a felony charge.  Once convicted of a felony charge, you would be designated as a felon.  Felonies appear on all criminal background checks for employment, and the felony status needs to be disclosed on applications for higher education or employment.  When facing a Third (3rd) Offense OUI, above all, the goal is to avoid the felony conviction.  Furthermore, without a lawyer, the District Attorney will not be willing to negotiate with you, because they know they could get a conviction at trial.  Some District Attorneys offices in Maine have well-known “no negotiation” policies for OUI cases, leaving the Defendant with a stark choice: take a bad deal or go to trial and lose.  Therefore, an experienced OUI criminal defense lawyer is more than essential to fight for your rights at court and at the Bureau of Motor Vehicles (BMV) Administrative Hearing.

If you or someone you know is facing a charge of a Maine OUI Third Offense, I encourage you to contact The Nielsen Group for your free and confidential legal consultation with me, an experienced Maine OUI defense attorney.  The goal of the discussion is to answer your questions and place your mind at ease.

As we talk about the details of your Maine OUI Third Offense at the free consultation, one of things we will go over is drawing a line in the sand. On our side of the line is your future how you want it to be. On the other side of the line is the State of Maine, with their charges, fines and jail time. Also the repercussions a felony conviction will have on your ability to support your family, maintain a profession, and stay out of jail.

As your lawyer, we will do everything in our power to stop them from crossing that line and taking your desired future. We will fight for you using all of our passion, conviction and skill.

When you are fighting a Maine OUI Third Offense, you should be aware of a few things.  Given my decade of experience, this article is to help answer some of your questions about facing a Maine OUI Third Offense and how an attorney can help defend you against the charge:

Maine-Third-OUI-Offense

  1. How is a Maine OUI Third Offense proven?
  2. What are the fines and penalties if convicted of a Maine OUI Third Offense?
  3. What to expect your first day at court?
  4. What are the impacts to your driver’s license?
  5. Why the public defender is not the right choice?
  6. How a criminal defense attorney can mount a successful defense to fight a Maine OUI Third Offense?
  7. What if I am accuse of a Maine OUI Third Offense and I have a driver’s license from another state?

How the Maine OUI Third Offense is proven

You are considered a third-time offender when you have either two (2) OUI convictions or two OUI related offenses including refusals or OUI administrative suspensions within any state in the past 10 years.  It is the state’s responsibility to prove these charges.  The Maine Law for Criminal OUI is Maine Motor Vehicle statute 29-A M.R.S.A. §2411.  Let’s look at the facts the State needs to prove.  If charged with a Maine OUI Third Offense, the State has to prove that you:

  • Operating a motor vehicle while;
    1. Under the influence of intoxicants; or
    2. Having an alcohol level of 0.08 grams or more of alcohol per 100 milliliters of blood or 201 liters of breath.
  • Have 2 previous convictions for OUI or OUI related Offenses (including administrative suspensions within a 10 year period.
  • Let’s closely examine the specifics of each of these elements.

Operating a Motor Vehicle

Operating a motor vehicle means driving or getting ready to drive.  If you are inside the motor vehicle in the driver’s seat and taking affirmative actions to start or drive the vehicle, you are considered to be operating the motor vehicle.  According to the law, a motor vehicle can be your average car, a commercial motor vehicle, motorcycle, or other motorized vehicle.  In some cases, although an ATV is not excluded from the definition of a motor vehicle, it can be considered as one if operated on a public way over a distance.

Under the Influence of Intoxicants

According to Maine OUI Law, being “under the influence of intoxicants” includes alcohol, illegal drugs, prescription medications, or a combination.   During the stop, the police officer will ask you to perform a Drug Recognition Evaluation (DRE).  The Drug Recognition Evaluator uses the DRE to evaluate your systems to determine what drug maybe causing your impairment.  Often a urine or blood sample is used to test for the presence of drugs.  The results of this test will be the evidence the district attorney uses to prove under the influence of intoxicants.

BAC Level of 0.08 or more

A blood alcohol level of 0.08 or higher means you are legally “intoxicated” in Maine.  The evidence used to prove this element of the crime is either a breath or blood test.  As Maine has an “implied consent” law, all drivers are required to consent to a chemical test when requested by a police officer.

2 Previous OUI Offenses with a 10 year period

If you have been convicted of 2 previous OUI Offenses within any state or if you have refused 2 previous breath tests within Maine in the last decade, the state will have the evidence needed to qualify this element of the crime.  This is achieved through the use of certified Court records.

Standardized Field Sobriety Tests

If you have been stopped for an OUI Offense in Maine, the police officer will request that you complete three standard field sobriety tests. You may be asked to complete additional, “non-standardized” field sobriety tests. The purpose of these tests is to determine if the suspect is physically impaired.  This information is used to help substantiate your impairment and aid the office in achieving the threshold of probable cause to request that you submit to a chemical test.  There is not a law in Maine which requires that you submit to the Standardized Field Sobriety Tests. There are no impacts if you choose to politely refuse taking the Standardized Field Sobriety Tests.

Chemical Tests

As we mentioned earlier, Maine has an “implied consent” law.  If you are driving a motor vehicle within Maine, you are required to consent to a chemical test when requested by a law enforcement officer.  The chemical test given is the choice of the officer.  It can be a urine, breath, or blood test.  If you refuse the chemical test, there are automatic penalties with respect to your administrative license suspension and increased penalties if convicted of the OUI.

The penalties when convicted of a Maine OUI Third Offense?

A Maine OUI Third Offense is a Class C felony.   In my experience, the sentences for those convicted can often be more than the mandatory minimum, so I have also shared the maximum penalties for this crime.

Penalties for a Maine OUI Third Offense

 
Mandatory Minimum
Maximum
Fine$1,100 fine (plus fees and surcharges)$5,000 fine (plus fees and surcharges)
Jail Time30 days mandatory incarceration5 years in prison possibly including up to 2 years probation with a suspended portion of the sentence
Driver’s LicenseSix (6) years court-ordered loss of driver’s license.
Court-ordered suspension of the person’s right to register a motor vehicle
Six (6) years court-ordered loss of driver’s license.
Court-ordered suspension of the person’s right to register a motor vehicle

Refusal of a Chemical Test

When investigating a suspect for an OUI Offense in Maine, the law enforcement officer will request the driver submit to a chemical test.  The chemical test is at the discretion of the police officer.  If the intoxicant is suspected to be alcohol, the police officer will most likely request a blood or breathe test.  If the intoxicant is a type of drug, the police officer will most like request a urine test as part of a DRE evaluation.  If you refuse to take the chemical test, the officer will need to advise you of the penalties for refusal and that the refusal will be admissible at court.

Since we are discussing the Maine OUI Third Offense, let’s go over the penalties for refusal up to a third refusal.

  • For the first refusal, your driver’s license will be administratively suspended for 275 days, which must be ran consecutively to the Court imposed suspension of 150 days (approx. 14 months). In addition, at Court, you will incur a $600 fine and be required to serve at least 96 hours jail time.
  • For the second refusal within ten years, your driver’s license will be administratively suspended for 18 months, which must be ran consecutively to the Court imposed suspension of 3 years (approx. 4.5 years). In addition, at Court, you will also be fined $900 and need to serve at least 12 days jail time.
  • For the third refusal with ten years, your driver’s license will be administratively suspended for 4 years, which must be ran consecutively to the Court imposed suspension of 6 years (approx. 10 years). In addition, at Court, you will be fined $1,400 and be required to serve at least 40 days jail time.

These are additional penalties. So to walk through a scenario, let’s say you are convicted of a Maine OUI Third Offense and you refused the chemical test for the first time, as such your minimum penalty is:

  • $1,400.00 fine (plus fees and surcharges)
  • 40 days mandatory jail time
  • Six (6) years court-ordered loss of driver’s license consecutive to the 275 day suspension.

Court-ordered suspension of the person’s right to register a motor vehicle. The fact that you choose not to take the chemical test is also admissible as evidence at your trial.

What can I expect my first day at court?

If you are charged with Maine OUI Third Offense, you will certainly be arrested and have bail set.  If you can make bail then you will be assigned a date for your initial appearance.  If you cannot make bail, then you will be held at jail until you can be brought before a Judge for your initial appearance, usually within 48 hours.  This is not an arraignment because since a Maine OUI Third Offense is a felony, the State will need to secure an indictment before you can be arraigned on the charges.  Once you are indicted, then you can be arraigned on the felony OUI charge.  At your initial appearance, the Judge will read the charges to you and only inquire if you understand them.  The Judge will not ask you for your plea.  Also, if bail needs to be readdressed, the Court will entertain that as well at the initial appearance.

What are the impacts to my driver’s license if convicted of a Maine OUI Third Offense?

The license suspension time for a Maine OUI Third Offense or a felony OUI is six (6) years.  Even with the possibility of becoming eligible for an Ignition Interlock Device for your car after three (3) years, this is still a rather long time to wait before you can get back on the road.  Unfortunately, there is nothing which you or your lawyer can do.  Short of defeating the administrative suspension in addition to being found Not Guilty of the felony OUI that would make the effective license suspension time any shorter.

While discussing what happens to your driver’s license if convicted of a Maine OUI Third Offense, I make a point to have a heart-to-heart talk with my client about the possible need for significant life changes made necessary due to the lengthy license suspension.  If the client chooses to remain in a life situation that compels the client to get behind the wheel for any reason, this is a recipe for more criminal charges, and making a bad situation worse.

Here are some of the creative solutions that past clients have come up with to continue to live and work without a driver’s license:

  • Move their residence within walking distance of their job
  • Move their residence to where they can access reliable public transportation (busses, trains, etc.)
  • Change their employment to be able to work from home
  • Begin an education program to start a new career when they can get behind the wheel again

Ignition Interlock Device

In a Maine OUI Third Offense, the license suspension is six (6) years, and the State offers an opportunity for relief from the suspension after three (3) years with the installation of an Ignition Interlock Device (IID).  An IID is a breathalyzer machine connected to the ignition of your car.  A person becomes eligible for an IID after completing their DEEP (a substance abuse evaluation program) requirement and paying any reinstatement fees to the BMV.  After installing the IID, the person can drive their vehicle on a restricted license so long as the IID is installed for the remainder of the suspension.

Driver Education and Evaluation Program (DEEP)

DEEP stands for Driver Education and Evaluation Program.  For a Maine OUI Third Offense, it is likely that you would be recommended for a longer-term treatment program, or for some sort of residential substance abuse program.  Completion of your DEEP component is required in order to become eligible for the IID, and so when you are able to apply for an IID depends upon when you complete your DEEP component.  When coming back from a felony OUI conviction, I recommend that clients do not rush things and apply for the IID when they are ready and have completed their substance abuse program.

Why is the public defender not the right choice?

Across the United States, nearly 90 percent of defendants, when faced with a criminal prosecution, remain unrepresented or choose to rely on the services of the public defender’s office to handle their case.  There is overwhelming statistical evidence that private attorneys achieve lower incarceration rates, shorter sentences, and greater probabilities that a charge will be dropped or reduced. Often cost is the reason the accused never even consider the possibility of hiring private counsel. The question you should consider is given the risk to your freedom, livelihood, and future. Is the money you save today worth the risk?

I know how to defend clients against Maine OUI Third Offense charges. As we work together, I make a point to know the ins and outs of your case. I have built a reputation of aggressively advocating with the district attorney and defending clients in court and all the way through to trial if needed. If you choose to hire the Nielsen Group, you are more than just another case to us. We put your interests first and in the end, wouldn’t you agree that is more valuable?

How a criminal defense attorney can mount a successful defense to fight a Maine OUI Third Offense?

In a Maine OUI Third Offense, your Maine OUI defense lawyer absolutely must be aggressive in fighting the felony charge.  Your Maine OUI defense attorney should have both the knowledge of the law and skills to argue the case with the District Attorney.  Some of the areas of attack for your OUI defense lawyer should explore in defending a Maine OUI Third Offense are:

Maine OUI Third Offense

  • Problems with the Stop – Did the officer have the requisite reasonable articulable suspicion to pull you over? Did the officer have the requisite probable cause to get you to take an alcohol breath test or other chemical test?
  • 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 and well maintained? Did the officer observe the proper wait period before breath testing? Did the machine read any error messages during testing?
  • Problems with a Blood Draw – Were proper procedures followed for the blood draw? Were proper procedures followed when the blood was tested? Were there issues with the blood draw sample or instruments? Was the sample properly preserved?
  • Preserving Any Video Evidence from the Police Cruiser/ Intoxilyzer room – The single best piece of evidence in an 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.
  • Contemplating Employing Expert Witnesses at Trial- the Intoxilyzer, Police Procedure, and medical experts can be employed to testify at trial to challenge the machine and test if proper police procedure was applied. An expert’s review is a critical look at the State’s evidence.
  • Contemplating Residential or Inpatient Alcohol or Substance Abuse Treatment – In Maine OUI Third Offense, if the State has a strong case, perhaps your best opportunity to win any means of bargaining with the District Attorney is to check yourself into a residential or inpatient alcohol or substance abuse treatment program as soon as possible, and to see such treatment through to the end. While lengthy and potentially costly, it is better to save your life opportunities than pinch pennies when facing a felony.

The BMV Hearing for Maine OUI Third Offense

In a Maine OUI Third Offense, the Maine Bureau of Motor Vehicles (BMV) can suspend your driver’s license on the basis of a police report only.  Even in a Maine OUI Third Offense, you retain the right to request an Administrative Hearing at the Bureau of Motor Vehicles (BMV).  As before, there is a short window of time to request an Administrative Hearing.  If you do not request an Administrative Hearing, the BMV will suspend your driver’s license for six (6) years.  Requesting an Administrative Hearing has the effect of placing a stay (postponement) on your license suspension until after the Administrative Hearing is held.  It is important to note that the burden of proof that the State must meet at the BMV administrative hearing is on the civil preponderance of the evidence standard and not the more favorable criminal beyond all reasonable doubt standard.  This lower burden of proof makes it considerably easier for the State to win at the BMV hearing.

At the BMV Administrative Hearing, your attorney will present a case on your behalf, and the Hearing itself presents an opportunity for your attorney to obtain testimony from the arresting officer for use at future court dates.  One reason your Maine OUI defense attorney should always request the BMV hearing is to attempt to flush out any issues with the stop that may aid in your defense in the criminal matter.  As a Maine OUI criminal defense attorney, I cannot stress enough how important having this hearing is to your defense.  If you prevail at the Administrative Hearing, your driver’s license will not go under suspension.  Even if your license is not suspended by the BMV, your license still may be suspended from the Court-imposed penalties in the event of a felony OUI conviction.

How do you avoid Jail on a Maine OUI Third Offense?

Can you avoid jail time for Maine OUI Third Offense? It is possible, but only in cases where there is a weakness in the strength of the State’s case that can be exploited in the Defendant’s favor and/or the Defendant has taken significant steps to rehabilitate and address their use of Alcohol.  However to be blunt, it is not likely that the State’s Attorney will be inclined to negotiate a no jail resolution unless there is a compelling reason to do so.  Keep in mind, the best offense is an aggressive defense to advocate for the following:

  1. You are found not guilty on the underlying charge of OUI.
  2. The Disitrict Attorney agrees to a deferred disposition with a dismissal or a drop down to a non aggravated charge at the end.
  3. The District Attorney’s office agrees to reduce the charge from a Maine OUI Third Offense to a lesser offense that does not require jail.

Unified Criminal Docket Court Procedure for Maine OUI Third Offense in Maine

The Unified Criminal Docket is the court procedure at the Cumberland County (Portland) and Penobscot County (Bangor) courts.  When facing a felony OUI (also known as a Maine OUI Third Offense), you are required to attend all court dates in person.  Your Initial Appearance is your first time in front of a Judge, where bail may be set.  Since the charge is a felony, the State is required to first indict you by a grand jury before you can be Arraigned.  After indictment, your Arraignment is where you can enter a plea of Not Guilty and your lawyer can obtain a copy of the discovery materials (i.e. police reports).

Depending on when you are indicted, your Arraignment and Dispositional Conference date can occur on the same date.  The Dispositional Conference is where the attorneys meet to negotiate a potential resolution to the case outside of trial.  If no resolution is reached at the Dispositional Conference, then the case would progress to pretrial motions, jury selection and trial.  Pretrial motion hearings include any potential Hearings on Motions to Suppress, which request that any evidence obtained in violation of the defendant’s constitutional rights to be suppressed from evidence at trial, among others.  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, the jury determines whether or not you are guilty or not guilty.

Superior Court Procedure for a Maine OUI Third Offense

Since a Maine OUI Third Offense is a felony, the case would start out at the Superior Court, which is the court procedure most widely used across the State of Maine.   If you are charged with a felony and cannot make set bail, the State can keep you in custody until the next time Court is in session, usually 48 hours.  At your initial appearance, the Justice can set bail and a Status Conference date is set.  If you are not indicted by the Status Conference date, you would come into court to assure that you are meeting your bail conditions.  If you are indicted by the Status Conference date, this date would become your Arraignment, where the details of the charge are read to you, and you have an opportunity to answer to the charge.

At the Superior Court, the Docket Call is the court date where the District Attorney and OUI Criminal Defense Attorney meet to talk about the case, and perhaps reach an agreement for a resolution.  If no agreement is reached, then the case progresses to the Motion Hearing, Jury Selection, and Trial.  A trial is the defendant’s ultimate “day in court.”

Maine OUI Third Offense but you have a License from a Different State

What if someone has been charged with Maine OUI Third Offense, but the client is not a Maine resident?  My defense of the person’s case would be the same, except for the following considerations:

  • Depending on the person’s OUI history from their home state, a conviction for a third (3rd) offense in Maine might result in a lifetime revocation of their driver’s license at home. Therefore, fighting the charge aggressively is a necessity to protect their ability to drive at home.
  • Even if out of state clients might find it difficult to attend court in person, this is required of them in a felony OUI.

For More Information

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