Typically, you must fight a Maine OUI charge at both the criminal Court and at the Bureau of Motor Vehicles (BMV). While clients have a fighting chance at the criminal Court, the standard of evidence at the BMV is low, making it easy for the State to win. Often, clients have their driver’s license suspended administratively after losing at the BMV. The BMV Hearing is still valuable for other reasons. But this article is about one of the extraordinary instances when I was able to beat back the administrative suspension on an OUI Refusal (275 days).
Facts of the Case
It was a February night in Maine, and the road showed it. At an intersection, My Client lost control of her vehicle and collided with a snow berm. She was stuck. She tried to get out, but she could not. A good Samaritan and concerned citizen saw the accident and offered to help. While helping my Client free her car from the snow, the concerned citizen saw an open bottle of liquor in her car and thought that my client might be impaired. The concerned citizen decided that he should drive my Client home in her vehicle so that she got home safe. A third motorist that had also stopped followed them to my Client’s home, and then returned the concerned citizen to his vehicle.
While the commotion was happening on the side of the road, the police were receiving calls about this accident and suspected erratic driving by my Client. An officer finally arrives on the scene to investigate. The officer is approached by the concerned citizen, who informs the police that he believed my Client was impaired. The concerned citizen also hands the officer the keys to my Client’s vehicle. The concerned citizen had held onto them so that my Client would not go back out driving that night.
Armed with this information and my Client’s car keys, the officer went to visit her at home. The officer arrives 50 minutes after the incident. Client is impaired when the officer sees her. My Client admitted to the officer that she continued to drink alcohol after being dropped off at home. This is a critical piece of information. An OUI charge is based from impairment at the time that she was behind the wheel. An OUI is not supposed to consider impairment from an hour later drinking alcohol at home.
Notwithstanding that my client told the officer that she drank alcohol after being dropped off at home, the officer had my Client perform Standardized Field Sobriety Tests (SFSTs), which she failed. This is not surprising given that she drank alcohol after she got home. What was quite surprising was that later, the police report never followed up to investigate further any of her statement that she had any alcohol after arriving home. When did she start? How much did she have? Where was the bottle of liquor? Instead, my Client was arrested based on the complaints about operation, the collision with the snow berm, the concerned citizen’s suspicion of her impairment, her poor performance on the SFSTs, and obvious impairment. The officer brought her to the police station for an alcohol breath test. Unfortunately, my Client refuses to give a breath sample, despite being obligated to do so under Maine’s Implied Consent Law.
What is Maine’s Implied Consent Law?
In Maine, holding a driver’s license means that you are obligated to provide a chemical sample for testing upon request of law enforcement, if the officer has probable cause to believe that you are operating a motor vehicle while under the influence of an intoxicant. This was a lot of legal-ese, and so I will break down a few key terms.
A chemical sample is any chemical sample requested. Here, it was a breath sample, but in other cases it could be a blood or urine sample.
Probable cause is a “reasonable belief” that the driver is impaired. Seeing erratic driving could be the basis for probable cause to pull someone over for suspected OUI.
An intoxicant can be alcohol, drugs, or a combination of drugs and alcohol.
While the State of Maine cannot physically force you to provide a chemical sample, it can create a statute obligating those with a driver’s license to submit to a chemical test. The State can also, via Statute, penalize those who refuse to provide a chemical sample, or simply “refusal.” For a Refusal, the State can suspend your driver’s license for longer periods of time, and the State can impose higher mandatory fines and longer jail time upon conviction of a Refusal at Court.
How Long is the License Suspension for a Refusal?
As an experienced OUI criminal defense attorney, I believe that the mandatory minimum administrative suspension is the harshest aspect of an OUI Refusal. For a First Offense Refusal, the administrative suspension from the BMV is for 275 days, which is approximately nine (9) months. A Refusal suspension does not get access to any relief, such as through a work restricted license or Ignition Interlock Device (IID). The full refusal suspension must be served first, and then any Court imposed suspension can begin. They are consecutive license suspensions. This has the effect of making a Refusal suspension significantly longer than a typical OUI where a chemical sample is provided.
Can a Refusal be Contested?
Even if you refuse to provide a chemical sample, you are still entitled to a BMV Administrative Hearing on the administrative suspension. A request for a BMV Administrative Hearing needs to be made in a timely manner. Any OUI criminal defense attorney worth their salt will request a BMV Administrative Hearing on clients’ behalf. Even though the BMV Administrative Hearing is difficult for petitioners to win on the merits due to the low burden of evidence, the hearing itself is a “free deposition” of the arresting officer. A deposition is a form of testimony provided under oath. It is through these BMV Administrative Hearings that I can do the most damage to the State’s OUI case.
In this case, I requested the BMV Administrative Hearing on time for the Client. The first thing to understand about the BMV Administrative Hearing is that it is designed for the State to win. The BMV has an incredibly low burden of proof known as a “preponderance of the evidence.” A preponderance of the evidence is a civil standard, and means it is more likely than not that something occurred. Think of having to prove the case at 50.1%. Administrative Hearings are not criminal trials where you get the benefit of the State’s burden to prove the case “beyond a reasonable doubt” to a finder of fact, whether a jury or Judge/ Justice. The BMV Administrative Hearing is held in front of a Hearings Examiner.
The issues at the BMV Administrative Hearing for an OUI Refusal case includes whether there was probable cause to believe the following:
- That you were operating a motor vehicle while under the influence of intoxicants.
- That you were informed of the consequences of failing to submit to a test
- That you failed to submit to a test.
Again, “probable cause” is a reasonable belief. Probable cause does not have to be a correct belief based on the facts. It just must be reasonable. So what this boils down to is that unless you have a skilled OUI criminal defense lawyer in your corner who knows what they are doing, it is a near certainty that you will lose at the BMV Administrative Hearing, and that you will have lost your best opportunity to reveal evidence favorable to you that can be used to help your criminal case at Court.
I have represented clients in countless BMV Administrative Hearings, and due to the low burden for the State to meet, most of them have ended up with the administrative suspension being upheld. But I do not consider these to be losses. While I am questioning the officer at the BMV Administrative Hearing, I am exploring aspects of the OUI case that can be used later at the Criminal Court. These include whether the officer will make a good witness at Court, whether my client’s rights were violated during the OUI investigation, whether the officer is properly qualified to investigate an OUI case, and whether the officer was trained properly to administer SFSTs and the alcohol breath test machine. While these issues might have no impact on the Hearings Examiner’s decision, occasionally I bring out enough information from the officer to create a big problem for the State’s case. In rare instances I bring out so much of a problem that the Hearings Examiner rescinds (removes) the administrative suspension. This case was one of those rare instances.
What Happened at the BMV Administrative Hearing?
At the BMV Administrative Hearing in this case, the arresting officer was the State’s only witness. The Hearings Examiner went through the officer’s report with a focus on the Refusal. After the Hearings Examiner was finished with direct examination, then I could question the officer.
Questioning the officer, I asked him further about my Client consuming alcohol after returning home, but prior to the police arriving. The officer admitted that the investigation did not follow up on it. They just notated it. The officer in fact had no idea of how much alcohol my Client had consumed upon returning home, or at what time that alcohol was consumed. Score for the Defense!
I followed up with questions about how long it had taken police to arrive at the accident scene. It came to light that there was a prior accident scene to arriving at the accident with my Client. It appeared that the roads were in poor condition that winter night, and the officer was called to multiple accidents. I made a point to indicate this to the Hearings Examiner. Another point for the Defense.
The next question was how much time the officer thought had passed from when the concerned citizen had dropped off my Client home to the time when police arrived. The point was to narrow the timeframe in which my Client would have consumed the additional alcohol, and to show that the additional alcohol was consumed shortly before the police arrived. This would have been just before my Client failed the SFSTs. The Hearings Examiner was interested in this line of questioning. Why was this line of questioning important? Because if my Client showed impairment, then she would have had to have consumed the alcohol with enough time to have processed the alcohol, and thus become impaired by it. If the police had gotten there immediately, then the impairment would have been by alcohol she had earlier before driving. However, there was a much bigger window of time for the police to get there. My Client could have consumed the additional alcohol and have had enough time to become impaired by the additional alcohol by the time police arrived.
The Hearing Examiner reviewed the officer’s report, showed interest in the statements made by the concerned citizen. In the end, the Hearings Examiner agreed with me that the statements made by the concerned citizen were hearsay, and thus should not be given much weight. In closing, I made the following important points:
- There is no way of knowing if the impairment the officer observed from my client was caused from the alcohol they admitted to drinking after operation of their vehicle, or from alcohol the officer suspected my client consumed prior to or while driving.
- The roads were indeed in bad condition that night with snow and ice, as the officer was on multiple calls for accidents, and thus the accident was a result of the road condition, as opposed to the consumption of alcohol.
In this situation, I won the BMV Administrative Hearing on the merits. I made it impossible for the State to meet the first issue, i.e.; whether there is probable cause to believe that a person was operating a motor vehicle while under the influence of intoxicants.
Now my Client’s case is ready for trial, and I have several strong areas from which to defend the case and create reasonable doubt in the mind of a Jury that my client was actually impaired at the time of operation. Furthermore, I saved my Client a 275-day administrative license suspension. The job of an OUI criminal defense attorney is never easy, but if you have been charged with OUI Refusal, having a skilled advocate in your corner is invaluable.