In a client’s case, whom I will call Matt, was pulled over for suspected drunk driving. The reason the police officer gave for pulling him over was that one of his license plate lights was out. Operating a motor vehicle without all of your required lights functioning properly is a legitimate basis for a traffic stop. My client was arrested and brought to the police station for an alcohol breath test on the Intoxilyzer 8000, where he blew a double-digit blood alcohol level.
The officer drew up his police report from the arrest of my client. The officer sent the police report to the Maine Bureau of Motor Vehicles. A week or so after his arrest, Matt received a letter in the mail from the Maine Bureau of Motor Vehicles (BMV) indicating that they were going to suspend his driver’s license. Because my client is a busy professional who needs to drive to and from work, having a suspended license would place a significant burden on his ability to conduct his life and livelihood.
Because Matt had already retained me to represent him in his OUI case, I addressed the BMV Administrative Suspension immediately by requesting a BMV Administrative Hearing, along with copies of the police report from the BMV. This also had the effect of a stay (postponement) being placed on the suspension of my client’s license until after the Administrative Hearing was held.
In these types of cases, it is always helpful to have a criminal defense Attorney. If you or someone you know is facing a charge of Criminal OUI in Maine, I encourage you to contact The Nielsen Group for your free legal consultation with an experienced criminal defense attorney. We are happy to answer your questions and to put your mind at ease.
A BMV Suspension is Serious
Occasionally, I encounter people who believe that BMV Administrative suspensions are not as important as the suspensions “from the Court.” This shows a misunderstanding of license suspensions. The Maine BMV that issues you your driver’s license. The Maine BMV will suspend your driver’s license, regardless of whether the court imposes the license suspension, or if BMV suspends your license “administratively” on the basis of a police report.
BMV Suspensions are a serious matter for a number of reasons:
- If you do not fight the BMV suspension, your license goes under suspension automatically.
- If you do not address the BMV Administrative suspension, and you lose your OUI case at the Criminal Court because you did not lay the foundation to your defense at the BMV hearing.
- All BMV Administrative Suspensions are counted as “prior” OUI offenses. This means that even if you win at the Criminal Court and are found innocent of the OUI charge, but the BMV still suspended your driver’s license, this administrative suspension can be counted as a “prior” OUI offense the next time you get charged with OUI.
- All BMV Administrative suspensions go on your driving record.
- Without a BMV administrative hearing, your OUI criminal defense attorney would not be able to question the arresting officer until the case goes to a trial. Without the benefit of a recorded “prior statement” from the arresting officer, the criminal defense attorney could not effectively measure the officer’s trial testimony or trap him with prior statements.
Since being without a driver’s license is the most distressing aspect of an OUI, it is all the more essential to fight all license suspensions.
Benefits of Fighting a BMV Suspension
In contrast, when you fight a BMV suspension with the assistance of an OUI criminal defense attorney, the potential benefits include:
- Fighting the BMV suspension will create a foundation for a potential Motion to Suppress the State’s most important evidence in the OUI criminal case.
- Fighting the BMV suspension will reveal the State’s weaknesses for the OUI criminal case.
- Fighting the BMV suspension, you may win. If you win at the Administrative Hearing, then your license would not go under suspension.
With these benefits, it makes no sense to not fight a BMV suspension.
BMV Administrative Hearing is Not a Criminal Proceeding
The biggest difference is that the BMV Administrative Hearing is an Administrative Law case. Under Administrative law procedure, the standard of evidence the police officer must meet is the “preponderance” standard. A “preponderance” means that based on the evidence, if it is “more likely than not” that you might have been drunk driving, the State prevails. In contrast, your Criminal OUI case is a criminal case, in which the District Attorney must prove to a jury of your peers “beyond a reasonable doubt” that you committed the crime. This is why it is not unusual for the State to prevail at the BMV Administrative Hearing but secure a conviction in Court. An experienced OUI criminal defense attorney will have the experience to approach each proceeding in the most effective and persuasive way.
It is still possible for the accused person to prevail at the BMV Administrative Hearing.
A Winning BMV Administrative Hearing
Here is an example of what happened at Matt’s BMV Administrative Hearing:
At the BMV Hearing, I attended the BMV Administrative Hearing on behalf of my client. Because Matt had retained me to represent him, he was not required to attend the BMV Administrative Hearing. The arresting law enforcement officer attended on behalf of the State. The Hearings Examiner presided over the BMV Administrative Hearing. Since all parties were in attendance, the Hearings Examiner started the hearing. Had the arresting officer not appeared, then my client would have won the Administrative Hearing by default.
At a BMV Administrative Hearing, the questions at issue include:
- 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.
- 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 arresting officer presenting the State’s case, usually in the form of testifying about their observations contained in the police report. After the police officer presented their evidence, it was my turn to ask the arresting officer my questions. I had several for the officer.
- Questions about the Standardized Field Sobriety Tests: In advance of the BMV Administrative Hearing, I had the opportunity to obtain and review the video evidence from the cruiser on the night of the incident. Frankly, my client did not appear to be drunk while performing these tests. And the officer was not able to administer the HGN (horizontal gaze nystagmus) test to my client, as he had eye surgery prior to the stop, making it difficult for the officer to view his pupils. Under normal circumstances, the HGN test looks for involuntary movements of the pupils due to impairment.
- Questions about the Intoxilyzer 8000 Test: In Maine, not only does the officer administering an alcohol breath test have to be properly certified to use the equipment, but the machine also has to be in working order as well. More importantly is how the officer administers the test. Before taking an alcohol breath sample, the officer administering the test is required to have the subject wait for 15 minutes. If during that 15 minutes, the test subject burps, belches, or regurgitates anything, then the officer is required to restart the 15 minute wait period. In Matt’s case, he did indeed belch, bringing up alcohol vapor from his stomach. The officer did not restart the 15 minute wait period as he should have, but instead had my client provide the breath sample. That breath sample resulted in a high test result.
After cross-examining the arresting officer, the Administrative Hearing presents an opportunity for me to present my client case, presenting any alternative theories of the case. In this instance, I had approached my client’s BMV Administrative Hearing as an opportunity to identify weaknesses in the State’s case. The issue of failing to restart the mandatory 15-minute wait period before administering an alcohol breath test in combination with the performance of my client on the SFSTs certainly lends itself to a strong defense and exposes several weaknesses in the State’s case favoring my client.
Not only did I lay the foundation for my client’s defense at the BMV Hearing, with the evidence that I exposed at 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 was a much appreciated outcome.
Winning at the BMV Does Not Guarantee Success at the Criminal Court
It is important to clarify that while my client was pleased to have prevailed at the BMV Administrative Hearing, this success does not automatically mean his charges are dismissed at the criminal court. The criminal court has its own standards and procedures to determine the guilt or innocence of the specific charge. However, in this instance, the testimony of an arresting officer at the BMV Hearing can lead to a strong defense such that there is an acquittal at trial.
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