The Maine Bureau of Motor Vehicles (BMV) is an administrative agency of the State of Maine.  Hearings at the BMV are called “Administrative Hearings” because they are governed by “administrative law.”  Most people are familiar with the criminal law standard of “beyond a reasonable doubt”. In administrative hearings, the standard of evidence applied is much lower than the “beyond a reasonable doubt” standard.   Instead, the standard of evidence is referred to as a “preponderance standard.”  This means that all the State needs to prove is that “more likely than not” you committed an offense, such as OUI.  This is usually satisfied by a police report alleging OUI submitted to the BMV by the arresting officer.

This low burden of proof for the State makes BMV Administrative Hearings generally easy for the State to win.  Therefore, whenever a defendant wins a BMV Hearing on the merits, you know that there are issues with the State’s case.  Keep in mind that a BMV Administrative Hearing is not the same as going to the criminal court to fight the OUI.

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

Facts of the case

While driving home one evening, my client was pulled over for suspected drunk driving.  The story the officer told my client was that he was pulled over because one his license plate lights was out.  Generally, if any one of your operating lights are out on your car, this can be a legitimate basis for a traffic stop.  However, my client asserts that at no point were his lights ever not working.  After performing the Standardized Field Sobriety tests, my client was arrested and brought to the police station for an alcohol breath test for possible OUI.

The result of the alcohol breath test was double digits.  As a part of representing my client’s OUI case, I entered my appearance with the BMV and represented his interests at the BMV Administrative Hearing.

Weaknesses in the State’s Case

When administering an alcohol breath test, the officer is not only required to be certified to use the equipment, but the same proper procedure must be followed each and every time.  One of the steps in administering a proper alcohol breath test is to have the test subject wait 15 minutes before providing a sample.  If during that 15 minutes, the test subject burps, belches, or regurgitates anything, then the officer is supposed to restart the 15-minute wait period.

In my client’s case, he did belch during the wait period, brining up alcohol vapor from his stomach.  The officer characterized my client’s bodily function as a “dry” belch, and then proceeded with taking a breath sample.  Sure enough, my client’s results came up with a high blood alcohol measurement.

The 15-minute wait period is quite an essential part of the test, and most officers do observe the wait period without fail.  In this case, however, it seems as though the officer just could not be bothered to restart the wait period before having my client provide a breath sample.

What happened at the BMV Administrative Hearing

At the BMV Hearing, all parties attended.  The BMV Administrative Hearing questions included:

1. There was probable cause to believe that my client 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.
2. That my client 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.

The BMV Administrative Hearing starts with the administrative Hearing Examiner questioning the arresting officer on their report, thereby presenting the State’s case.  Often this usually is in the form of reciting the police report.  When it was time for me to ask the arresting officer my questions, I had several questions about that impatient alcohol breath test.

I questioned the officer about the 15-minute wait period and why it was necessary.  I then questioned the officer about the proper procedure to take if a suspect burps during the 15-minute wait period.  I also focused on how the observation that the belch was dry did not matter.  The administrative Hearings Examiner tried to rehabilitate the officer’s testimony but he could not establish that the proper operating procedure for the breath test was followed after I had nailed it down that proper procedure was not followed.

After the BMV Administrative Hearing, the Hearings Examiner issued a decision that my client’s driver’s license would not go under suspension administratively for this incident.  This meant that my client’s case was enough to overcome the low burden on the state.  My client had won his BMV Administrative Hearing on the merits.