If you or a loved one has been arrested for drunk driving, known as operating under the influence (OUI) in the State of Maine, you probably have many questions. The criminal defense attorneys at Libby O’Brien Kingsley & Champion are knowledgeable about OUI law and are experienced in representing clients facing OUI charges. Below are some of the more common questions clients have when they or a loved one is arrested for OUI in Maine.
What is OUI?
To prove OUI, the State must prove beyond a reasonable doubt that a person operated a motor vehicle while either under the influence of intoxicants or while having a blood or breath alcohol content of .08 or above. The Maine Supreme Judicial Court has stated that “under the influence of intoxicants” means that the person’s “mental or physical faculties were impaired however slightly, or to any extent, by alcohol, drugs, or other intoxicants[.]” State v. Soucy, 2012 ME 16, ¶ 11, 36 A.3d 910, 912. This means that, contrary to popular belief, the State is not required to prove the motorist’s BAC was .08 or above. Instead, the State can prove OUI if the person is impaired, even if the person’s BAC was lower than .08. Also, the term “drugs” is not limited to illegal drugs or narcotics. A person can be charged with OUI for prescription or over the counter medication, even when taken in accordance with directions or a doctor’s orders.
What is the difference between OUI, DUI, and DWI?
None. Each state uses different terminology to define drunk driving. In Maine, we refer to drunk driving as OUI, which stands for “operating under the influence.” Some other states refer to drunk driving as DUI, which stands for “driving under the influence” or DWI, standing for “driving while intoxicated.”
How do I beat an OUI charge in Maine?
There are many potential defenses that an experienced criminal defense lawyer can raise to an OUI charge. Every case is different, so it is important to consult with an experienced criminal defense attorney as soon as possible after an OUI arrest. Do not wait until your court date. Some common defenses include:
- The police lacked reasonable suspicion to stop the driver’s vehicle.
- The police lacked probable cause to arrest the driver for OUI.
- The results of the field sobriety tests are unreliable due to a medical condition, fatigue, or a failure to follow protocol.
- The results of the breath test are unreliable due to an improper observation period or other error by the person administering the breath test.
- The police failed to follow statutory requirements for requesting a blood or breath alcohol test.
- The person’s BAC was below .08% at the time of operation.
- The State cannot prove that the defendant was the driver of the vehicle.
What if the officer forgot to read me my Miranda rights?
Despite its portrayal on television, the Supreme Court’s decision in Miranda v. Arizona does not require a police officer to read every person who is arrested for a crime his or her Miranda rights. Instead, Miranda requires the police officer to provide certain warnings before conducting a “custodial interrogation.” If an officer fails to provide the warnings, any statements made by the defendant during the interview could be excluded at a later criminal trial.
I was arrested, even though I passed the field sobriety tests. Can my case be thrown out?
An officer investigating an OUI will generally not tell the suspect how well they have performed on field sobriety tests. In fact, the officers will not even tell you that the test has begun. For example, when administering the walk and turn test, the officer will ask you to stand in an uncomfortable “instructional stance” while he or she gives you instructions. By this point, the officer has not told you that the test has begun. However, if you move out of the so-called instructional stance, the officer will count this as a “clue” that you are impaired and were unable to maintain balance. In Maine, the police will usually administer three standardized field sobriety tests: the “Walk and Turn” test, the “Horizontal Gaze Nystagmus” test, and the “One Leg Stand” test.
Because a person’s performance on field sobriety tests is often subjective, it is very common for a motorist and a police officer to have different perceptions about performance on field sobriety tests. Many officers have an incomplete or incorrect understanding of how the tests should be administered or scored. For this reason, it is important that you hire an experienced criminal defense attorney who understands how to use the officer’s own training materials to carefully evaluate whether the tests were conducted and scored correctly.
Should I refuse a breathalyzer in Maine?
A common question is whether a motorist arrested for OUI should refuse to take a breath test. Maine law imposes a duty to submit to a chemical test when there is probable cause to believe that the person operated a motor vehicle while under the influence. The officer may ask you to complete a breath, blood, or urine test. It is usually inadvisable to refuse the test. A refusal to submit to a test can result in the following:
- The suspension of your license for 275-days for a first refusal, which will run consecutively to any suspension imposed by the Court if you are convicted of OUI.
- A mandatory minimum jail sentence of 96 hours and $600 fine if you are convicted of a first offense OUI involving a refusal.
- Admission of the fact of your refusal in a criminal trial for OUI. In addition, most judges will instruct the jury that it may consider refusal as evidence that you were impaired.
29-A M.R.S. § 2521. It is ultimately your choice whether to submit to a test. If you refuse, it is also possible that the police may obtain a warrant to take a sample of your blood. Although this is not common, it is an option that is available to the police.
What are the penalties for OUI?
The penalty you will face for an OUI conviction will vary greatly depending on the circumstances of the arrest and your driving history. With no aggravating factors, a first offense OUI carries a mandatory minimum penalty of a $500 fine and a 150-day loss of license. If you were tested at a BAC of .15 or above, the mandatory minimum penalty increases to carry a 48-hour jail sentence.
In addition to the court-imposed license suspension, the Maine Bureau of Motor Vehicles will independently administratively suspend your license following an OUI arrest. This process is separate from the court proceeding and will often take place before your first court date. The administrative suspension for a first offense OUI is 150-days, which will run concurrently with any suspension imposed by the Court.
Finally, an OUI conviction may result in other indirect consequences. For example, an OUI conviction may make it more difficult for you to enter Canada and may affect your eligibility for certain professional licenses.
The potential penalties for OUI, including second and subsequent offenses, are covered in more detail in our separate article: What Are the Penalties for Drunk Driving in Maine?
How can I get my license back after a suspension for OUI?
If your license is suspended for OUI, you must pay a fee to the BMV before your license will be reinstated. Additionally, after an OUI conviction or administrative suspension for excessive alcohol level, you must complete a 20-hour DEEP Risk Reduction Program administered by the Office of Substance Abuse. The program consists of a class held on a Friday (5-9 pm), Saturday (9-5) and Sunday (9-5) for a total of 20 hours at a cost of $300. You should register as soon as possible after an OUI arrest, even before going to court. The classes often fill up quickly and, if you wait, you’ll risk spending more time with a suspended license than is necessary. Also, further alcohol evaluation and treatment or counseling may be recommended as a result of participation in this class.
More information about DEEP, including class locations and schedules, is available on the State of Maine’s website.
Can I get a work or hardship license while serving an OUI suspension?
Maine does not have a general “hardship” license program in OUI cases, but it does have programs allowing for a work-restricted license, a restricted license, and early reinstatement with an ignition interlock device.
Work-Restricted License. The Bureau of Motor Vehicles can issue a work-restricted license that will allow you to drive to and from any activity that is work-related during your administrative suspension for operating with an excessive alcohol level. The issuance of such a license is conditioned upon a showing that such a license is necessary to operate a motor vehicle between your residence and place of employment or to operate a motor vehicle in the scope of employment, and that no alternative means of transportation is available. You must pay the reinstatement fee before a work-restricted license is issued, and you must complete the DEEP course before the expiration of your administrative suspension in order to get your regular license returned. The downside to the procedure regarding work-restricted licenses is that if you obtain such a license during your administrative suspension, none of the suspension period will be counted against the eventual court-imposed suspension. For this reason, many people opt against requesting a work-restricted license.
Restricted License. If you are later convicted of operating under the influence in a court of law, you may be issued a “restricted license” for the limited purposes of traveling to a treatment program or to employment. Although similar, a “restricted license” and a “work-restricted license” are different things. To be eligible for the former, you must have served at 100 days of your suspension (for a first offense), paid all reinstatement fees, and have completed the DEEP course. You can also obtain a restricted license if you are serving a suspension for a refusal, provided you have served two-thirds of the period of suspension.
Ignition Interlock Device. The Bureau of Motor Vehicles may also reinstate your driving privileges early if you satisfy all other conditions for license reinstatement, including paying the reinstatement fee and completing the DEEP course, and installing an approved ignition interlock device. A first offender is eligible for this program after serving 30 days of suspension time. A second offender is eligible after serving nine months of suspension time, although such a license offered to a second offender is limited to traveling to and from work, school or an alcohol treatment program. Information about fees and approved installation vendors is located on the Bureau of Motor Vehicles website. The vendors differ in terms of cost and the type of IID device used. So long as your license contains an ignition interlock device restriction, you will only be allowed to operate a vehicle with an approved ignition interlock device installed and must comply with any other restriction placed on your driving privileges.
The benefit of obtaining an ignition interlock device over a work-restricted license is that the time you spend driving on a reinstated license with an ignition interlock device will count against both the administrative and court-imposed suspensions, making it a more attractive option. There is a separate application fee for an ignition interlock device petition, a cost of installation, a rental fee, and a removal fee.
What happens if I am arrested for OUI but have an out-of-state license?
Maine will still prosecute an out-of-state driver for OUI as it would a Maine-licensed driver. The caveat is that the State of Maine does not have the authority to suspend your license if you are convicted. What it can do, however, is suspend your right to operate a motor vehicle in the State of Maine, which it will do both administratively before the Bureau of Motor Vehicles and after a conviction for OUI in court.
If you are convicted of OUI, Maine will report the OUI conviction to your home state. In many cases, your home state will treat the Maine conviction as if the conviction happened in your home state. This means that, if your home state has a harsher drunk driving law than Maine, you may be subject to a license suspension exceeding the suspension you received in Maine. In most cases, you will not be able to get your license back until you (1) complete any suspension imposed in your home state, and (2) provide a letter of clearance from the Maine BMV showing that your privilege to operate in Maine has been reinstated.
If the Maine Bureau of Motor Vehicles suspends your privilege to operate in the State of Maine, Maine will also report the administrative suspension. Different states vary greatly with their treatment of the administrative suspension. Some states will automatically suspend your license, whereas others will not.
* * *
This article is for informational and educational purposes only and is not intended to be legal advice. You should consult legal counsel to assess the legal issues specific to your case. The attorneys at Libby O’Brien Kingsley & Champion regularly defend clients charged with operating under the influence throughout Southern Maine, including York, Ogunquit, Wells, Kennebunk, Arundel, Biddeford, Saco, Sanford, Scarborough, South Portland, Springvale, and Portland. If you or a loved one has been arrested for OUI, please contact us at (207) 985-1815 to schedule an evaluation of your case.